Michalopoulos v Victorian WorkCover Authority
[2021] VCC 1068
•12 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05754
| DEMOS MICHALOPOULOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-11 June 2021 inclusive; 18 June 2021 and 24 June 2021 | |
DATE OF JUDGMENT: | 12 August 2021 | |
CASE MAY BE CITED AS: | Michalopoulos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1068 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – coccyx – incontinence – knee injury – psychiatric injury – whether injuries causally related to claimed incident – whether injuries “serious” – leave sought for pain and suffering and pecuniary loss
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr O Lesage | Zaparas Lawyers |
| For the Defendant | Mr I McDonald QC with Mr P Lamb | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to s134AB of the Accident Compensation Act 1985.
2The plaintiff, Mr Dimosthenis (“Demos”) Michalopoulos, is now a 51-year-old single man. He is a tertiary educated man, who has obtained a Bachelor of Civil Engineering. After a number of jobs, including jobs relevant to his qualification, in 2002 he got a job with the Roads Corporation (VicRoads) as an engineer. In the course of that employment, on 9 February 2012, he was descending a set of stairs at his workplace when he tripped and fell (“the fall”), and as a consequence he claims to have suffered a “serious injury”.
3Specifically, the plaintiff claims to have suffered a “serious injury” due to one or the other of three claimed injuries, namely:
(i) a serious long-term impairment or loss of a body function, namely injury to the spine, including the coccyx, with resultant faecal incontinence;
(ii) a serious long-term impairment or loss of body function by way of injury to the right knee; and
(iii) a resultant severe long-term mental or behavioural disturbance or disorder.
4This application proceeded in the “usual way” that is that the plaintiff filed affidavits in support of the application and was cross-examined on the contents of his affidavits. In addition, the parties tendered medical reports, records, and relevant financial documents. I have taken all of the evidence into account and the transcript of the plaintiff’s oral evidence but, given the volume of that material, I shall only refer to it to the extent necessary in these reasons.
5The defendant also tendered video surveillance it had obtained of the plaintiff on various dates, and I have taken that into account.
6Despite proceeding in “the usual way” this was not the “usual” serious injury application. It had a history of two prior adjournments, each at the request of the plaintiff. When the application commenced on 7 June 2021 as an e-hearing it quickly became apparent that the volume of material and the likely cross examination meant that it needed to be heard in a court room. When the application resumed in Court on 8 June 2021 it was necessary to grant the defendant an adjournment for the rest of the day, so it could consider an affidavit of the plaintiff sworn that day and which exhibited approximately 500 pages of taxation material. When the application resumed on 9 June 2021 the plaintiff then gave oral evidence over three days. Due to the volume of material, at the conclusion of the evidence the parties were requested to provide written submissions, and I have taken the written submissions into account. The written submissions were also tendered as exhibits, because the parties correctly assumed that oral submissions were made on the basis that the written submissions had been read and taken into account.
7Pausing here, the complexity of this application is perhaps reflected by the fact that at the commencement of it the plaintiff provided a (very helpful) 23‑page chronology.
Credit
8As has been said many times before, in applications of this type the credit of the plaintiff will often be critically important,[1] and in respect to this application, never has a truer word been said.
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10
9The defendant did not shirk from the fact that it saw the plaintiff’s credit as a major issue. In opening address, Senior Counsel for the defendant said:
“Credit is a major issue in this case. In short, we’ll be saying that the plaintiff is a malingerer and has been a tax cheat on a major and sustained basis. So there will be quite a lot of time devoted to examination of his tax returns and his failure over many, many years to disclose income from the investment properties that he’s owned.”[2]
[2]Transcript (“T”) 19, Lines (“L”) 23−31; T20, L1
10The opening salvo by counsel for the defendant regarding credit was no empty threat. There was a lengthy cross-examination of the plaintiff regarding his tax returns and taxation obligations; what he had said in his affidavits; what was revealed by video surveillance; and what he had said to the doctors. That cross-examination went well beyond the approach envisaged in the relevant practice note but it was appropriate, in my view, in all the circumstances.
11In case the point had not been made clear, in its written submissions, the defendant doubled down and submitted that:
“The plaintiff is not a witness of truth and should not be accepted on any major issue in the absence of clear objective evidence and/or credible corroboration supporting the allegations.”[3]
[3]Exhibit D7 (Defendant’s Outline of Submissions on Serious Injury), paragraph 1
12In his written submissions the plaintiff accepted that his credit is relevant to the determination of the application. He submitted that there should not be an adverse finding in respect to his credit, but, even if there was such a finding, then that does not detract from the whole of the evidence in respect to compensable injury, impairment and consequences. In other words, the plaintiff says that even an adverse credit finding does not mean that the application fails when the whole of the evidence is analysed.
Conclusion regarding credit
13It is convenient to record my conclusions regarding the credit of the plaintiff before moving on to deal with the evidence, because many of the issues in this application do turn on an assessment of the plaintiff’s own evidence. Specifically, the plaintiff’s description as to how he was injured; his description of the onset of symptoms; and his description of ongoing impairment and impairment consequences, are relevant to an assessment of the balance of the evidence.
14Having seen the plaintiff in the witness box over several days, I found him to be an unreliable witness, whose evidence lacked credit. To some extent the transcript speaks for itself, but broadly a lot of his oral evidence was inconsistent with the documentary evidence – especially his affidavits – was non-sensical and at times simply unbelievable.
15I will now set out a few examples to illustrate this point. A neat summary of many of the credit issues is, in fact, set out in the written submissions of the defendant and I accept that summary to be an accurate description of the evidence referred to but also the impact of that evidence on the plaintiff’s credit[4].
[4] Exhibit D7, paragraphs 23-25 (inclusive)
16This application commenced with the plaintiff swearing an affidavit on 3 July 2018.[5] In that affidavit he set out his restrictions for day-to-day activity at paragraphs 20−31. I accept the submission of the defendant that the video surveillance played and tendered is in stark contrast to the restrictions described in that affidavit. The video surveillance demonstrated him carrying out a wide range of activity, with no obvious restrictions, in particular at investment properties owned by him, or in which he has an interest.
[5]Plaintiff’s Court Book (“PCB”), page 12
17The clear impression from his affidavits, especially before he became aware of the video surveillance, was of significant disability. In particular, he described an inability to engage in day-to-day activity such as putting out the rubbish bins and performing minor repairs at home. Remarkably, in his affidavit he went so far as to say about those sorts of activities that “My mother has to do them.”[6] Yet in the video surveillance he is seen to engage in just those type of activities, on a repeated basis and with no obvious restriction.
[6]PCB 23, paragraph 27
18Some of his oral evidence was simply unbelievable. During cross examination about his tax returns he was asked about a tax refund he had received of approximately $280,000. He was asked if he had received that money and replied that “I’m not sure”[7]. He was pressed on the issue and asked if he had checked his bank balance and he said “No”[8], yet curiously in other parts of his oral evidence he discussed how he now has tenants who pay rent to him by way of direct bank deposit and he seemed to be clear about rents that had, or had not, been paid to him.
[7] T185 L13
[8] T185 L24
19As another illustration, when confronted with the video surveillance that showed him carrying stone pavers out from one of the investment properties, his explanation for why he was seen leaving the property carrying pavers (other than the obvious inference of having done some maintenance to the property) was contradictory and unbelievable. He was cross examined about this aspect of the video surveillance – namely being seen carrying stone pavers - as follows:
Q:“All right. Well, when we do see you leave, you’re carrying a bundle - what appears to be six pavers - six pavers in your arms?---
A:I don’t know if it was that many but I had them in my left. I wouldn’t have put something like that, that’s kind of heavy and concentrated, in my right arm.
Q: Well, I will correct myself - - -?---
A: And also if I can - - -
Q: - - - and say it was five pavers but - - -?---
A: Oh, okay.
Q:- - - so just what we see when you’re first leaving your house, you’re carrying the pavers with both hands?---
A: Am I?---
Q: Well, we can go back and have another look in a second, if we wish?---
A: Okay.
Q:But when you unlocked the car you transfer them to one arm so you can unlock the car?---
A:Sorry, my recollection was that they were in my left hand.
Q:All right. Okay. And once you leave the property - well, sorry before we go on?---
A: M’hmm.
Q:How did you come to be carrying the five - carrying the five pavers? Where did they come from? What were you doing with them? What was the plan? What activity generated that?---
A:I can’t remember now, to be honest.
Q:Well, you wouldn’t ordinarily just take five pavers out of the ground somewhere and stick them in your hand and carry them out to your car and - - -?---
A:I can’t - they were in the house so I just thought this is just ridiculous. We had them on a table there, I think, so, for fuck’s sake, like, because the other person came in and he saw them and he’s the one that commented on them - commented on them and I thought oh - - -
Q:Well, the other person doesn’t go, at least on the video, at least?---
A:Sorry?
Q:He doesn’t go inside the house, you have a - what seems to be a very brief conversation with him on the verandah from the - - -?---
A:No, I’m sure he - well, that was my recollection. Look, I’m sure he had a look or we talked - I cannot remember if he came in or he didn’t come in. Maybe he got put off by the window or that, but I remember going in and seeing those pavers on the table and just thinking, that’s just ridiculous, what are they doing there.”
HIS HONOUR:
Q: “So, sorry, so the tenant has put some pavers on the table?---
A: Yeah.
Q: Well, it does sound ridiculous?---
A: Yeah.”
MR McDONALD:
Q:“Well, what about this as a proposition instead, that whilst you’re there for that 30 minutes or odd minutes or so, that you’ve been doing a bit of maintenance out in the backyard and you’ve decided that there were too many pavers or some pavers need replacing or something so you’ve picked up five of them and carried them out of your car with a view to doing something later on in terms of improvements on the property or whatever?---
A: No. I just removed them because they were in the house.
Q: Is this the tenant who was staying?---
A: Sorry?
Q: This is the tenant who was going to stay; is that right?”
HIS HONOUR:
Q:“This is the audio video guy, as I understand?---
A:Yeah, the audio video guy. That wasn’t the audio video guy there in the blue shirt.”
MR McDONALD:
Q:“No. But this is the guy who’s still your tenant?---
A:The guy that’s in there?
Q:The guy who owns the - the guy who you say is the possessor/bailee of the pavers.”
HIS HONOUR:
Q: “The Turkish guy?---
A: Yeah, the Turkish guy’s there.
Q: He’s living there at this stage?---
A: Yes.
Q: And he’s gone to walk the dog?---
A: Yes.
Q:And sometime between you and - when you were last there watching the wedding video, he’s plonked five pavers - - -?---
A:I wasn’t watching wedding videos then, I was just watching TV.
Q: I know you weren’t?---
A: Oh, sorry.
Q:But some time in that 48 hours he’s plonked five pavers on the kitchen table - - -?---
A:Yeah.
Q: - - - has he?---
A: Oh, yeah, they were on the table. I know, it sounds ridiculous.
Q:: It does.”
MR McDONALD:
Q: “And so you’ve taken the pavers - taken his pavers?---
A: Yes.
Q:Without asking him if you could or why they’re there?---
A:No, I wasn’t going to ask him. I was just - - -
Q:So, on your version of the events he might have had a perfectly good explanation for having pavers in the house; maybe they were a prop for his photographs or it could have been anything, but you take it upon yourself - - -?---
A: Yes.
Q:- - - just to take his five pavers and decamp?---
A:I mean, you can see it that way. I just - I just was pissed off, to be honest. I thought what the - - -
Q:Why would you be, why would you, to use your phrase, “pissed off”?---
A:Because he knew I was going there with someone else to have a look at the room and I reckon he did it on purpose, that’s why, because he wanted the room, the whole house for himself. He didn’t want others coming in. That’s the reason he probably did it.
Q:So it sounds like a pretty nasty sort of tenant you’ve got here?---
A:Yeah, well, he was in the end. I - - -”
HIS HONOUR:
Q: “Is the backyard paved?---
A: Yes, it is.
Q:So were these pavers from the backyard?---
A:No. I don’t know if they were from the back - they must have been.”[9]
[9]T225, L21 – T228, L25
20I could go on, but it is unnecessary. The plaintiff’s evidence lacked credibility in many ways, which I will deal with in more detail, as appropriate, as I resolve specific issues in this application.
21Pausing, I am, however, conscious that I am required to consider the whole of the evidence[10], notwithstanding my impression of the plaintiff as a wholly unreliable witness.
[10] Cakir v Arnott’s Biscuits Pty Ltd [2017] VSCA 104
The fall
22The first substantive issue that must be resolved is the exact circumstances of the fall. That is because there ultimately needs to be findings of fact regarding what injury, or injuries, were (or were not) suffered in the fall.
23In his first affidavit, the plaintiff described the fall as follows:
“On the 9th February, 2012 I was working for the employer at 499 Ballarat Rd, Sunshine. This is a two storey building. I usually worked on first floor. On the ground floor was the department involved in the construction of road infrastructure. There was a lift at the building but it was used primarily to transport materials and for persons with a disability. It was very slow. For day to day communication between the floors two sets of stairs one at the back and one at the front of the building both carpeted were used. At about 2.00 pm on the said date I was bringing maps downstairs to a colleague. There were about 4 – 5 maps rolled up about 1.75 metres long. Each roll was about 20 centimetres in diameter. I took the front stairs which were about 1.5 metres wide and came down to a landing. I was carrying the maps length wise across in front of me with my two arms under them. At the landing I turned to go down the rest of the stairs which went back down in the opposite direction to the top half of the stairs. At this point I tripped on the tread edge of the landing at the top of the stairs.
The tread edge contained a strip of what looked like hard rubber in a metal casing and the rubber had partially come out of its casing and was protruding up a centimetre or so. I believe I was dragging my feet to ensure I did not overstep the first step. I felt my right foot connected with something although I had not seen the protruding rubber at this time. The connection with my foot caused me to lose balance and the maps went up in the air and I fell forward onto the steps. Andrew Rasulo helped me up. I had pain in my neck and shoulders, left hand, back and left knee. George a friend drove me home.”[11]
[11]PCB 15-16
24The description of the circumstances of the fall based on the plaintiff’s affidavit is that he tripped on a raised edge on a stair and, in his words, “fell forward onto the steps”.
25The plaintiff tendered an affidavit from Mr George Giachos.[12] Mr Giachos was a co-worker and was apparently at the base of the stairs and, in his words, witnessed the plaintiff “tumbling down the flight of stairs” and landing “heavily at the base of the stairs against the lowest step”.[13]
[12]PCB 5
[13]PCB 5
26The impression from Mr Giachos’ evidence is consistent with the plaintiff’s affidavit, namely he witnessed the plaintiff falling forward down the flight of stairs.
27The plaintiff has provided a number of histories to treating and medico-legal examiners that are broadly consistent with the description of the fall in the affidavit. As an example, Dr David Kennedy, sports and industrial physician, in a report of 29 September 2015,[14] took a description of the fall as follows:
“Mr Michalopoulos states that on 9 February 2015 he was walking down stairs at work when he tripped on an anti-trip section on a step and he fell down several steps onto his arm and hand and in fact he tumbled forward down half a flight of stairs which involved about 15 steps. He injured his left little finger and also had bruising over his neck, back, hip and shoulders. He was somewhat dazed following this incident and was helped by colleagues and a co-worker drove him home.”[15]
[14]PCB 187
[15]PCB
28The documentary evidence tends to a conclusion that the plaintiff caught his foot on the raised edge of a stair, causing him to fall forward and then tumble down the stairs, striking the left side of his body against the stairwell as he fell, consistent with suffering a fracture to the left little finger, which injury is not disputed, but is also not relied on as a “serious injury”.
29In the documentary evidence there is no suggestion that the plaintiff fell directly onto his coccyx.
30The description in the plaintiff’s affidavit was put to him in cross-examination as follows:
Q:“I understand what you’re saying there, your right foot has connected with the tread somehow and then you’ve fallen forwards down the stairs?---
A:Well, I fell forwards as in my body fell forward. I don’t - It didn’t fall backwards, it fell forward. But I fell and I rolled a number of times.
Q:But the?---
A:I didn’t, I didn’t fall forward like the superman and fall on my stomach and face. I fell down and then I tumbled forward.
Q:But, your foots got caught?---
A:Yes.”[16]
[16]T320, L1-9
31After leaving the witness box and providing a “demonstration” of the fall - in which it appeared that he was attempting to demonstrate an initial movement forward and then an unusual movement backwards - and following an exchange between counsel, the plaintiff gave what I consider to be unreliable evidence. I asked him whether he had fallen onto his hands and knees. He said:
A:“No. I fell on my buttock, but then everywhere, my hands and knees. I rolled over a number of times so are you talking about initially Your Honour or overall.
Q:Well, your feet haven’t flown out from underneath you, so you’ve landed slap on your buttocks. That’s not how it happened?---
A:Basically yes. Like - - -
Q:No, were not having any more descriptions?---
A:Okay. My foot was searching, it hit something, it went forward, I fell on my buttock, but then continued to roll forward. Then I hit everything.”[17]
[17]T321, L5-15
32Pausing, the plaintiff’s oral evidence of a direct fall onto his buttocks is the first time in the long life of this application that he described the mechanism of a fall causing a direct blow to the buttocks/coccyx.
33The cross-examination regarding the circumstances of the fall continued as follows:
Q:“I’m just going to read to you what you deposed in your affidavit. ‘The connection with my foot caused me to lose balance and the maps went up in the air and I fell forward on to the steps’?---
A:Yes.
Q:It doesn’t say you fell backward onto the steps?---By falling backwards, I would have fallen back on to the landing, so I fell forward.
Q:So, what you are trying to do now I suggest, you’re trying to create a new history, a new set of circumstances to concerning the fall, because it’s become apparent to you that the issue of whether you have damaged your coccyx in the case is a major issue?---
A: No. No.
Q:I suggest that you’ve never told any doctor that you’ve fallen backwards when you had your fall. You’ve told them consistently that you fell forwards?---
A:I’ve always demonstrated exactly how I did before. That’s exactly what I have demonstrated to anyone who has asked exactly how. But I’ve always said I fell down the stairs.
Q:Yes, we’ll accept that?---
A:Yes.
Q:And suggest that when you were first found at the bottom of the stairs you were lying spread eagled on your stomach?---
A:Well, I was on my buttock, but anyway.
Q:You say you were sitting up on our buttock?---
A:I was sprawled on my back all over the bottom step when Andrew leaned down to try and pick me up.
Q:Yes, well I suggest you are making it up now because you’ve worked out from the previous cross examination, if nothing else, that the issue of whether you sustained an injury to your coccyx looms large in the case and you are trying to tie your evidence to suit your case?---
A:No. That’s not true.”[18]
[18]T321, L16 – T322, L15
34I do not accept the plaintiff’s oral evidence regarding the fall and specifically I do not accept that he fell heavily onto his buttocks. His oral evidence is not consistent with either his own affidavit, the affidavit of Mr Giachos, or the contemporaneous histories given to doctors. I consider it to be an example of the plaintiff embellishing in circumstances where it had become clear to him that whether or not there was a direct blow to the buttocks/coccyx in the fall had become a relevant issue for the purposes of identification of injury.
The Plaintiff’s past medical history
35The plaintiff has a relevant past medical history, including various musculoskeletal complaints and a relevant past psychiatric history. There is some disclosure of that history in his first affidavit, but it is incomplete and, in effect, seeks to minimise the impact of any pre-existing medical conditions. It is yet another example of the unreliability of the plaintiff.
The claimed lower back injury and consequential bowel/incontinence issues
36Dealing with the first claimed “serious injury” of injury to the spine including the coccyx with resultant faecal incontinence, I consider that it is relevant that the plaintiff has a past history of trauma to the coccyx. In April 2001, a seat collapsed, causing him to fall onto his coccyx region. In 25 March 2002, when he was assessed by Dr John Silver, consultant occupational physician,[19] he was still describing symptoms of ongoing “activity-related back pain and stiffness involving the whole of the spine”,[20] the inference being that this was a fall of some consequence onto the coccyx, as evidenced by symptoms continuing one year later. This is relevant because no medical practitioner has been provided with that history.
[19]DCB 33
[20]DCB 34
37The defendant submitted that:
“The relationship between the bowel type issues and the fall seems to be predicated on a significant injury to the coccyx in the fall. The defendant submits that it is extremely unlikely that such an injury occurred”.[21]
[21]Exhibit D7, paragraph 26
38For the following reasons, I accept the submission of the defendant.
39The plaintiff’s initial description was of lower back pain, but not of a direct fall onto the coccyx. The contemporaneous medical reporting also does not suggest a direct fall onto the coccyx. He attended at his longstanding general practitioner, Dr Graeme Mulvey, on the day of the fall. Dr Mulvey’s clinical record is as follows:
“Fall at work today
Fell down some stairs
Hurt
- L knee
- L hand
- both ankles- whole of back
…
Walking OK
Not too distressed
Back
Reasonable ROMNo focal tenderness
Both ankles – no signs #
L knee
No effusionS1 tender anteriorly
L hand
Some excessive ulnar deviation L 5th MCP joint? #, ? ligamentous injury
P
XR AM
Then seeMay pursue W/C.”[22]
[22]DCB 291-292
40The subsequent progress notes do not make mention of the coccyx or specifically refer to lower back pain.
41The plaintiff tendered records of the Middle Park Physiotherapy Clinic. He first consulted at that clinic on 27 February 2012. The history taken at that time was as follows:
“Pain: fell down the stairs 3 weeks ago injuring
1. left little finger – dislocated – yet to be re-located – going to emergency today
2. right ankle – lateral ligament swelling and pain
3. left medial, lateral knee pain
4. mid Cx pain and headache over top of head to back of eyes
5. low back pain/SI] pain bilateral – no leg pain
All symptoms worse in the morning. eased with panadiene forte
PHx: playing soccer various small injuries.”[23]
(sic).
[23]PCB 917
42Thereafter, the plaintiff was treated for a range of symptoms. From time to time it was recorded that his “back” remained sore. There is no specific mention of symptoms in the coccyx or tailbone, save that on 12 September 2013, Dr Leesa Mackay reports that a “Coccygeal cusion (sic) having good effect”.[24] However, it is unclear from the physiotherapist’s notes whether the coccygeal cushion was then being used to assist the plaintiff to manage more generalised back pain when sitting, or whether, as the plaintiff submits, it is evidence of a specific problem with the coccyx. There is no report from the physiotherapist, although the plaintiff did tender a letter from Mr Dean Little, physiotherapist, back to Dr Mulvey of 20 June 2012. Amongst other things, that letter refers to “Right sided low back pain”[25] but again, there is no specific note of a fall onto the coccyx or pain in the coccyx.
[24]PCB 927
[25]PCB 913
43Approximately nine months after the fall, the plaintiff commenced attending Dr Athanasios Gouras as his general practitioner. A number of reports were tendered from Dr Gouras. In his first report of 4 December 2013,[26] Dr Gouras said:
“I first examined the above named in November 2012 for multiple injuries which he received during his employment with Vic Roads when he fell down stairs. In that incident the patient rolled over the stair case for some distance and sustained multiple physical injuries namely neck and shoulder injuries, lower back injuries, injuries in both knee joints and ankles and several other soft tissue injuries. He was operated soon after his fall for a fractured left little figure as well.
The patient following his injuries stayed off work for a few days and took painkillers. Initially his symptoms were not very severe and incapacitating. Due to load of work he resumed employment soon after the fall. His symptoms from the left hand persisted and a month later he was operated in his left hand. Following the operation he stayed off work for about two months.
As a result of his injuries and progressively the patient developed more pain in his affected areas and in particular his neck, back and legs. For this reason he kept taking medication and started physiotherapy.”[27]
(sic)
[26]PCB 56
[27]PCB 56
44Dr Gouras provided subsequent detailed reports setting out the history of treatment and various investigations and specialist referral. Nowhere in any of his reports is there recorded a history of a direct fall onto the coccyx.
45In a report dated 22 August 2018,[28] Dr Gouras reported the plaintiff then suffering a “Peptic ulcer and constipation, a result of taking medication”.[29]
[28]PCB 71
[29]PCB 76
46Then in a report of 3 March 2020, Dr Gouras stated that over the past eighteen months he had seen and treated the plaintiff for a range of conditions, including “…Symptoms of faecal incontinence and severe constipation or diarrhea”.[30] Dr Gouras then said that:
“… The patient as a result of his injuries in the fall of 9 February 2012, has developed faecal incontinence and severe coccydynia with rather pessimistic prognosis.”[31]
[30]PCB 78
[31]PCB 80
47The reports from Dr Gouras do not identify when exactly it was that the plaintiff presented with symptoms related to the coccyx or faecal incontinence. There is no explanation in his reports for the opinion ultimately expressed by him that as a result of the injuries in the fall the plaintiff developed faecal incontinence and severe coccydynia. In the circumstances, I am not persuaded that Dr Gouras’ reports satisfactorily contain a statement of his reasoning that demonstrates how he comes to the conclusion that the faecal incontinence and coccydynia is related to the fall.[32]
[32]Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15
48On 19 November 2013, the plaintiff attended Mr James Chiu, orthopaedic surgeon, at the referral of Dr Gouras. Mr Chiu saw the plaintiff for various “pain problems with a multitude of joints”;[33] however, he did obtain a history of injury to the coccyx. Mr Chiu reported back to Dr Gouras that:
“In addition, Demos has pain in both shoulders, neck, both hips, both ankles and also in the coccyx. He states that this has been the case since his fall down the stairs at work. Prior to this he was a fit and active gentleman who played soccer. Since the injury he has gained approximately 30kg of weight and has constant pain.
…
Demos is extremely tender to palpation over the coccygeal area.”[34]
[33]PCB 89
[34]PCB 89
49Mr Chiu arranged a CT scan of the plaintiff’s coccyx and lower lumbar spine. A CT scan of the lumbar spine, sacrum and coccyx was reported on 8 March 2014 as follows:[35]
“Multislice imaging with coronal and sagittal reformatted images, patient body habitus partly degrading the images.
The alignment of the lumbar spine is normal.
[35]DCB 17
There is a small right foraminal disc protrusion at L3-4 with no neural compression. The left L4-5 exit foramina is mildly narrowed with no significant compromise of the L4 nerve root. The central canal and subarticular recesses are of normal dimensions. The coccyx is acutely angulated anteriorly and the articulation between the sacrum and coccyx asymmetric, a developmental variant. No evidence of a recent fracture, bone destruction or pars defect. Paraspinal regions are clear.”[36]
[36]DCB 17
50There is no opinion from Mr Chiu other than the letter of 27 November 2017 already referred to. But he seems to be the first treating practitioner to make clear reference to a coccyx condition. It is unfortunate that he was not asked to express an opinion about the conclusion reported of the CT scan.
51Next, the plaintiff attended Mr David de la Harpe, orthopaedic surgeon, on 24 April 2014, at the referral of Mr Chiu. Mr de la Harpe provided a report dated 7 October 2014.[37] In that report, amongst other things, Mr de la Harpe noted that the plaintiff had been complaining of “diffuse back pain and coccyx pain. He finds it difficult to sit because of pain in the tail bone”.[38]
[37]PCB 91
[38]PCB 91
52Mr de la Harpe recorded that the plaintiff “says there was no past history of any of the symptoms shown prior to the fall”.[39] He then diagnosed:
“The diagnosis from a spinal point of view is that of an injury to the coccyx and aggravation of degenerative changes in the lumbar spine causing degenerative back pain.”[40]
[39]PCB 91
[40]PCB 91
53The plaintiff was then examined by Dr Saleem Khan, consultant physician in rehabilitation and pain medicine, on 25 July 2014. In a report dated 7 April 2015,[41] Dr Khan records a review with the plaintiff on 26 November 2014 as follows:
“He went to medical panel and the outcome was that he was approved for a multidisciplinary pain management program. In the meantime, his pain issues were in status quo. He also continued to have constipation and seepage. I thought that the Panadeine forte was likely responsible for this (overflow incontinence) and I suggested that he may wished (sic) to try the Norspan patches as an alternative. I referred him to our multidisciplinary team for assessment.”[42]
[41]PCB 94
[42]PCB 94
54The plaintiff was seen by a Medical Panel on 9 October 2014. In Reasons for Opinion, dated 3 November 2014,[43] the Panel recorded that the plaintiff “described his worst pains as being in his neck, back and coccyx”.[44]
[43]DCB 51
[44]DCB 53
55Next, regarding practitioners who have treated the plaintiff for his incontinence, on 6 March 2019, the plaintiff attended Ms Angela Khera, senior clinician pelvic floor physiotherapist, at Alfred Health Continence Service. She wrote back to Dr Gouras by letter dated 6 March 2019, recording the plaintiff’s summary of presenting continence problems as follows:
“Constipation with straining, incomplete emptying and faecal incontinence.
Faecal incontinence is passive often insensible. It can occur both during the day and overnight, several times per week and ranges from a smear to a moderate volume loss.
Irregular bowel pattern – may go twice in a day or not at all for several days.
Takes Movicol on and off and has 2 large spoonfuls of psyllium daily
Stools vary from watery to small pellets
Chronic coccygeal pain making sitting for … long difficultAvoids social and physical outdoor activities, spends long periods lying on the couch
…
Colonoscopy NAD
Chronic low back and coccygeal pain since a work place fall down stairs in 2012Gastric banding 2017
Slow transit constipation associated with codeine use, chronic coccygeal pain and obstructed defaecation with non-relaxing pelvic floor
Faecal incontinence associated with incomplete rectal emptying, anal and pelvic floor muscle dysfunctionPelvic floor muscle dysfunction secondary to and most likely contributing to coccygeal pain.[45][45]PCB 172-173
56Ms Khera reported a second time back to Dr Gouras by letter dated 13 March 2019, as follows:
“INTERIM REPORT
I have seen Jim several times now and continue to work on his severe pelvic floor muscle dysfunction. This dysfunction is characterised by extreme muscle tightness/spasm and subsequent pain which typically occurs in response to some kind of trauma to the pelvic region. A fall onto the tail bone is a classic inciting event – pain in the coccygeal region gives rise to protective muscle spasm (just like the spinal muscles do with a back injury) in the pelvic floor muscles which attach into the coccyx and surrounding tissue. If not recognised and alleviated the muscles become entrenched in that behaviour and the pain escalates. Pain can occur anywhere in the pelvis – penis, scrotum, perineum, coccyx, labia, vulva vagina.
It is not something that can be diagnosed with imaging – it is diagnosed with careful rectal (or vaginal) examination – the muscles are tense, painful and do not contract or relax normally. By being constantly constricted they can interfere with bladder, bowel and sexual function. Jim states that on no occasion has he had a rectal examination performed by the medical examiners. There is plenty of information in the scientific literature variously describing this but it is poorly recognised (since imaging will not demonstrate it and when the patient is anaesthetised/sedated for endoscopy everything feels normal).
I have discussed with Jim the idea of being assessed by Dr Adele Burgess, a colorectal surgeon who is familiar with this condition and who offers Botox for selected/appropriate patients. I suspect previously that Jim may have only had Botox into his anal sphincter and that is not where the problem lies – I could be wrong since I do not have a copy of his medical reports.”[46]
[46]PCB 174
57Ms Khera then provided a report to the plaintiff’s solicitors, dated 24 February 2021.[47] In answer to specific questions, she said as follows:
[47]PCB 175
“1.Diagnosis – coccydynia associated with trauma to the coccyx and subsequent pelvic floor and anal sphincter muscle dysfunction
2. Coccydynia and pelvic floor and anal sphincter muscle pain and spasm occurred after a fall going down stairs and landing onto the bottom/coccyx/tail bone. This pain has been reported by Demos since that incident on February 9, 2012
3. The anal sphincter and pelvic floor muscles have become extremely tense and painful over the years since his accident and in the last 3-4 years have caused him to have constipation, difficulty emptying his rectum, internal haemorrhoids, anal fissures and faecal and flatal incontinence. The shortening and tightening of the muscles which attach to the coccyx further contribute to coccygeal pain. This muscular dysfunction is not revealed on standard imaging or colonoscopy. It can be found on digital rectal examination, balloon expulsion testing, anal manometry testing or possibly defaecating proctography.
…
6. Prognosis
I believe prognosis is poor due to the poor response so far to therapy and Botox. The pelvic floor muscles, which attach to the coccyx, have likely been contracting protectively over a prolonged period of time, since the injury in 2012, with subsequent shortening and tightening of the muscles. Botox can relax the muscles but if they have become physically shortened and even fibrosed over time, they may not be able to achieve normal function. Even if we can get the muscle functioning better I suspect pain will persist. Pain in the spine and coccyx are likely to drive ongoing protective muscle behaviour and this muscle activity further drives muscle and coccygeal pain.
Assessment following second round of Botox performed February 8, 2021, shows the anal fissure appears to have healed but the pelvic floor muscle and coccygeal pain remain significant. The pelvic floor muscles continue to be stiff and resistant to stretching and ongoing pain limits the extent of physical/manual therapies that are tolerated.
7. Restrictions on social, domestic and/or recreational activities
The leakage of flatus and stool are totally unpredictable and profoundly embarrassing particularly when in close proximity to other people
The coccygeal pain limits the ability to sit for any length of time and to be physically active. The pelvic floor muscles are postural and will contract with most physical activities thereby exerting increased tension on the coccyx and increasing pain.
The medications taken to manage pain eg panadeine forte exacerbate constipation and increase the risk of further fissures and pain.
Sitting and physical activity are significantly restricted and likely to continue to be for the foreseeable (sic) future.
8. Ability to perform work
The leakage of flatus and stool are totally unpredictable and profoundly embarrassing particularly when in close proximity to other people such as work colleagues.
The coccygeal pain limits the ability to sit or stand for any length of timeThe pelvic floor muscles are postural and will contract with most physical activities, including standing, thereby exerting increased tension on the coccyx and increasing pain.
If these problems were his only problems he could possibly work part-time eg a few hours per day, 2-3 days per week in an environment that permits frequent changes in position, good access to toilet facilities and good physical distancing from work colleagues in case of accidents.”[48]
[48]PCB 176-177
58Pausing here, Ms Khera’s opinion is predicated on her understanding that the plaintiff had landed on his coccyx in the fall and had pain since that fall.[49]
[49]PCB 175
59The difficulty I have with accepting the opinion from Ms Khera is that I am not persuaded there was a fall onto the coccyx, or ongoing pain in that region since the fall. In my view, it should also be remembered that the plaintiff did have a classic fall onto the coccyx when the chair gave way in April 2001, bearing in mind the CT findings of no recent fracture. There is no objective evidence to support the opinions expressed by Ms Khera, which is not a criticism of her as she was reliant upon the information provided to her in expressing her opinion.
60Next, the plaintiff was cross-examined on the clinical records from Dr Ian Light, who the plaintiff had attended at an earlier time at the same medical clinic of Dr Mulvey. Specifically, the plaintiff was taken to the entry of 19 November 2010, where Dr Light recorded “Constipation due to colonic atony”.[50] The plaintiff was taken to a further entry from Dr Light of 1 June 2011, where “Constipation” was again recorded.[51]
[50]DCB 294
[51]DCB 293
61In those circumstances, the defendant submitted that Ms Khera’s opinions (and indeed all medical opinions relevant to this claimed injury) need to be analysed in light of the incomplete evidence and inaccurate history obtained by her. As I have indicated, I agree with that submission.
62In respect to treatment for the faecal incontinence, the plaintiff attended Ms Adele Burgess, colorectal surgeon, on 17 December 2019.[52] She reported back that the plaintiff “has had coccygeal discomfort since the date of the fall”. She recorded that the plaintiff was “very tender over his coccyx with pain on palpitation and movement of the coccygeal joints” and that Botox treatment was appropriate, which in fact the plaintiff has gone on to have, including as recently as February 2021, but there is no recent opinion from her.
[52]PCB 178
63At this point, it is worth remembering that it is the plaintiff who bears the evidentiary onus to establish what injury (or injuries) were suffered in the fall, together with what impairment and impairment consequences flow from such injury. At the risk of repetition, I do not accept that the fall was a classic-type coccyx injury caused by direct trauma to the coccyx. I do not accept that he had immediate pain in the coccyx area. He has clearly had some form of injury to the coccyx back in April 2001. He had symptoms of constipation in the eighteen months or so prior to the fall. Whether or not one or the other of those facts are relevant to the plaintiff’s current symptoms of faecal incontinence is impossible to say, because no medical practitioner has been provided with that history.
64The defendant had a joust with the plaintiff regarding the severity of his incontinence issues, but did not seriously suggest he does not suffer from incontinence. It is a condition that, in my view, would produce a “very considerable” consequence, at least in respect to pain and suffering, given the obvious and embarrassing nature of such a condition. But, having considered the whole of the evidence, I am simply not satisfied that there is an evidentiary basis to conclude that the plaintiff suffered injury to the coccyx in the fall, with resultant faecal incontinence.
65The situation is also clouded because of the suggestion in some of the medical opinions already referred to that the use of strong codeine-based painkillers, such as Panadeine Forte, may have caused or contributed to the plaintiff’s symptoms of constipation and in turn the constipation may also have contributed to the faecal incontinence. There are two difficulties with that. Firstly, the plaintiff has used strong painkillers such as Panadeine Forte for a range of ailments, not all related to the fall, and not all of which are pursued as a “serious injury”. Secondly, there is no clear medical opinion to link the use of strong painkillers (assuming such painkillers were taken for one of the injuries claimed to be serious) to the development of the constipation. In other words, there is an evidentiary problem for the plaintiff, even if the cause of the faecal incontinence is approached on the basis that it is due to constipation from painkilling medication.
66In summary, I am not satisfied the plaintiff suffered an injury to the coccyx in the fall or that he has symptoms of faecal incontinence causally related to the fall, because the state of the evidence does not enable such a conclusion to be made, particularly in circumstances where I reject his attempt to link a direct fall onto the coccyx as a cause of such symptoms.
67The next question is whether the plaintiff otherwise suffered injury to the spine, noting that the emphasis by him in this application was really on the coccyx and claimed resultant incontinence.
68There is contemporaneous complaint of low back pain after the fall. In his first affidavit, the plaintiff described his lower back symptoms as follows:
“I have an ache in the back all the time which becomes sharp for periods of a few minutes about a dozen times a day. Twisting or bending movements are likely to bring the sharp pain on. When I get this worse pain I have to limit my movements. Stretching my back seems to help. Sometimes the sharp pain can last for an hour or so and when this occurs I will take Panadeine Forte. The pain in my back spreads occasionally into my right thigh. This seems to occur every few weeks and is very discomforting. I also get cramps in my toes and calves mainly at night also every few weeks. Occasionally I also get a sharp pain in my coccyx which can last for several minutes. This is an unbearable pain and I am always cautious to protect the coccyx area when sitting.”[53]
[53]PCB 20-21
69In a further affidavit sworn 25 February 2020, he described those symptoms as “roughly the same”.[54] In a third affidavit, the plaintiff deposed to ongoing pain in his back.[55]
[54]PCB 43
[55]PCB 51
70I have already mentioned that in respect to injury to the spine the plaintiff really focused on the coccyx and incontinence. He does not appear to be having any active treatment for a lower back condition. The lower back is not really a focus in the medical material, despite the plaintiff’s claimed restrictions in his affidavits. The most recent orthopaedic opinion relied on by him is from Mr Raf Asaid, orthopaedic surgeon. In a report dated 1 May 2021,[56] Mr Asaid took a history of current symptoms/complaints as follows:
“He has pain in his neck, upper back, lower back, bilateral shoulders, bilateral hips and bilateral knees, and also complains of frequent headaches and migraines.”[57]
[56]PCB 245
[57]PCB 247
71Mr Asaid does not provide a specific diagnosis regarding the plaintiff’s lower back condition. His report is mostly directed towards the plaintiff’s claimed right knee injury.
72The plaintiff may have suffered “injury” to his lower back, in that he complained of symptoms in the lower back. A current diagnosis is unclear, but at its highest the medical opinion would support a finding of the aggravation of degenerative change. Accepting that there was injury to the low back by way of aggravation of degenerative change does not mean that the plaintiff can demonstrate a “very considerable” consequence from such injury, when the coccyx and faecal incontinence are excluded. That is primarily because the medical evidence does not sufficiently identify any impairment and impairment consequences solely referable to the lower back (if those exist) so as to make a finding of “seriousness”, bearing in mind any aggravation injury must of itself be “serious”. Next, any claimed consequences need to be assessed in light of the adverse credit findings and what is seen in the video surveillance. There is no objective evidence of any restriction for day to day activity from a low back condition, or of any restriction for employment.
73Accordingly, diagnosis in respect of any discrete low back injury is therefore something of a “moot” point, as accepting the plaintiff has an ongoing injury to the lower back does not alter the outcome, namely that the evidence does not establish what impairment and impairment consequences relate to that condition.
74Therefore, for the reasons set out, I am not satisfied that any low back injury is of itself “serious”.
The claimed injury to the right knee
75The plaintiff has a relevant past history of symptoms in the right knee. In his first affidavit, the plaintiff describes attending Mr Andrew McQueen, orthopaedic surgeon, in 2003 and again in 2005, for symptoms in the right knee, during which arthroscopy of the right knee was discussed, but not performed. Mr McQueen provided a report dated 1 September 2015, which records that history of a twisting injury to both knees at work on 7 August 2003, but his report does not specifically discuss the diagnosis or treatment recommended at that time.[58]
[58]PCB 99
76As mentioned, following the fall, the plaintiff attended Dr Mulvey on 9 February 2012. In the relevant clinical note, the doctor recorded that the plaintiff hurt “[left] knee”.[59] But, by 21 June 2012, Dr Mulvey recorded “pain and clicking both knees and ankles”.[60]
[59]DCB 291
[60]DCB 288
77When the plaintiff first attended for physiotherapy with Ms Mayo on 27 February 2012, she recorded “left medial, lateral knee pain” as well as “right ankle - lateral ligament swelling and pain”.[61]
[61]PCB 917
78By 24 February 2012, Ms Mayo recorded “knees clicking”. Then on 1 June 2012 she recorded:
“Pain: played indoor soccer on monday 6 minutes. pulled up ok … right knee has been playing up the last few days, pain medial patella and feels like it is inside the knee. all clicking.”[62]
[62]PCB 921
79When the plaintiff presented to Dr Gouras in November 2012, amongst other things, the doctor recorded “pain in his knee and ankle joints”. Clinical examination at that time revealed the plaintiff to be grossly overweight. The doctor recorded “…Both his knee joints were tender and painful worse on the right side”.[63]
[63]PCB 57
80The plaintiff then re-attended Mr McQueen on 24 January 2013. MRI examination was arranged, which Mr McQueen records as documenting a tear of the right medial meniscus and that arthroscopy was required. In addition, Mr McQueen noted arthritic changes in both knees.[64]
[64]PCB 99
81In a report dated 6 March 2020, Mr McQueen records that the plaintiff was not seen by him after 18 March 2013 until he was referred back and reviewed on 12 July 2018. At that time, a further MRI scan of the right knee was arranged and following that scan, Mr McQueen proceeded to perform a right knee arthroscopy on 14 May 2019.[65]
[65]PCB 104
82In respect to a summary of the situation, in his report of 6 March 2012, Mr McQueen said:
“This may (sic) suffered multiple injuries and I have been treating his bilateral knee injury and right shoulder injury since the referral in 2013. He has post traumatic arthritis of both knees and the right knee required an arthroscopy as documented. With regard to the right shoulder he may require surgery in the future and this would depend on the symptoms and a follow up MRI. He may have some problems lifting and using his arm above shoulder height.
With regards to his knees he will be restricted in a variety of activities particularly walking up and down stairs, carrying heavy weight, using ladders and walking long distances. His knee problems are aggravated by his obesity.”[66]
[66]PCB 105-106
83The plaintiff was seen for medico-legal purposes by Mr Clive Jones, orthopaedic surgeon, on 23 April 2013. In a report dated 24 May 2013,[67] Mr Jones provided the following opinion:
“Mr. Michalopoulos has a painful right knee as a residual symptom from a stair fall in February 2012. Most of the other symptoms associated with the injury, were soft tissue problems and are now resolving, but knee pain remains a difficulty. A meniscal tear has been demonstrated and he has been advised to have a knee arthroscopy. This seems a reasonable suggestion. There does not appear to be any reason why he requires constant physiotherapy attention, as a gymnasium program has already been approved. No further treatment is required for the finger injury.”[68]
[67]DCB 42
[68]DCB 43
84Next, on 7 November 2018, the plaintiff underwent medico-legal assessment with Mr Sudhindra Rao, consultant orthopaedic surgeon. In a report dated 12 November 2018,[69] in which he was asked questions relevant to the proposed arthroscopic procedure, he said:
“1.…
2.Is performing the proposed surgery or procedure an appropriate way to treat the worker’s injury or medical condition. Please explain why.
As noted in the clinical examination, Mr Michalopoulos has a number of issues related to the right knee. Mr Michalopoulos also has pain over the patellofemoral joint. There is no convincing evidence that the medial meniscus is the primary source of the pain. Therefore, one has to be guarded as to the prognosis from any surgical intervention by way of arthroscopic medial meniscectomy.
3.Is there any treatment besides the proposed surgery or procedure that is reasonable and appropriate for the worker to have to treat their injury or medical condition?
Given that Mr Michalopoulos appears to have significant patellofemoral pain and indeed this is on the opposite side as well, it would be prudent to consider a course of rehabilitation, particularly with quadriceps strengthening and continued weight loss. I note that Mr Michalopoulos has already lost 30 kg in weight as a consequence of the laparoscopic banding procedure. Appropriate rehabilitation could also include swimming activities.”
…
5. What injury or medical condition does the worker have? Include your clinical diagnosis where you can provide one, If the worker’s injury or medical condition has resolved please provide your clinical opinion on what injury or medical condition the worker’s history and examination was consistent with.
I believe that Mr Michalopoulos’ primary problem is that of bilateral patellofemoral pain with some contribution from the medial meniscus, which may be related to the injury event. The patellofemoral pain and problems have not resolved. The clinical picture that Mr Michalopoulos painted in addition to the clinical examination was consistent more with patellofemoral pathology.”[70]
[69]DCB 174
[70]DCB 180
85The plaintiff’s orthopaedic care was taken over by Mr Timothy Lording, orthopaedic surgeon, after the retirement of Mr McQueen. Mr Lording first met with the plaintiff on 18 June 2019. He has answered specific questions about the treatment administered to the plaintiff, in a report of 12 March 2021 as follows:
“… Mr Michalopoulos sustained a workplace injury on 9 February 2012, where he reports falling down some stairs. He developed pain and restriction of mobility in both knees, which did not respond to initial physiotherapy and simple pain relieving medications. He was subsequently referred to Mr Andrew McQueen on 11 February 2013, and MRI scans were arranged for both knees. Reported findings in the right knee were of a root tear of the medial meniscus, as well as mild chondral wear in the medial and patellofemoral compartments. In the left knee, there was mild to moderate chondral wear in all three compartments, but no discrete meniscal tear.
… Given that these knee problems began after the work-related fall, I believe that his employment with Vic Roads was a material contributing factor to his current presentation.”
…
…The prognosis for Mr Michalopoulos’s right knee is poor. He has significant meniscal loss and subsequent osteoarthritis development, compounded by his obesity. He is likely to have increasing pain and disability as his degenerative changes progress towards frank osteoarthritis, with the need for further non-operative and operative management in the future.
…
… With regard to Mr Michalopoulos’s right knee injury on its own, he should have the physical capacity to perform some alternative duties on at least a part-time basis. As a treating surgeon and not an occupational physician, it is beyond the scope of my expertise to define an absolute maximum number of hours that he would be able to work.[71]
[71]PCB 180-181
86The most recent medico-legal orthopaedic opinion obtained on behalf of the plaintiff is the report I have already referred to from Mr Asaid, dated 1 May 2021.[72] In respect to the diagnosis involving the right knee, Mr Asaid diagnosed “…Right knee medial meniscal tear treated surgically with radiological changes consistent with right knee osteoarthritis”.[73]
[72]PCB 245
[73]PCB 250
87Mr Asaid was asked specific questions regarding the plaintiff’s right knee (noting that he had also diagnosed a range of other injuries, including left knee osteoarthritis). In respect to the right knee, Mr Asaid reported as follows:
“5. Whether as a consequence of Mr Michalopoulos’ right knee injury, he is likely to be precluded or restricted in relation to employment or activities involving:
a) pushing, pulling or lifting
b) prolonged sitting, standing or walking
c) kneeling, squatting, or crouching;
d) walking up inclines or down declines;
e) walking over uneven ground
f) using stairs, steps or ladders;
g) any other physical functions or motions
and if so:
i) To what extent; and,
ii) Whether the incapacity will continue for the foreseeable future.
As a consequence of Mr. Michalopoulos’ right knee injury only, he is likely to be precluded and/or restricted from all the above mentioned activities. He reports particular difficulty with activities that require him to perform any pushing, pulling, lifting, kneeling, squatting, or crouching. He has difficulty bending over to put on socks and shoes. He also reports difficulty walking up and down stairs. Due to the nature of his condition, his description of pain and limitations in movement, the above mentioned activities may further aggravate his pain. I consider that this incapacity will continue for the foreseeable future.
…
7.Whether as a consequence of Mr Michalopoulos’ right knee injury on its own and excluding any other physical conditions and/or any psychiatric condition but taking into account the functional limitations in your response to question 5 above, he has the physical capacity to perform suitable alternative duties on a consistent and reliable basis:
i) If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours he could work, as well as the specific physical limitations on him working more hours;
ii) If no, please outline the specific physical limitations that would prevent him performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
As a consequence of Mr. Michalopoulos’ right knee injury on its own, I do not consider that he has the physical capacity to perform suitable alternative duties on a reliable and consistent basis. This is based on his described levels of pain and limitation in his right knee. It is likely that this incapacity will continue for the foreseeable future.
…
9. We request you have regard to the enclosed Surveillance Activity Report and DVD footage of Eastside Investigations (dated 24 October 2018) in responding to these questions, and request that you make specific comment on whether the report and DVD alter any of your opinions.
I have been provided with surveillance footage from 11 October 2018, 13 October 2018 and 22 October 2018. The surveillance footage demonstrates Mr. Michalopoulos driving, manoeuvring a light cabinet, walking in a supermarket carrying a basket, as well as performing light works on a house while up on a ladder. I have discussed the surveillance footage with Mr. Michalopoulos. He reports that prior to performing these activities, particularly whilst up on the ladder, he took strong painkillers to enable him to climb the ladder. He also reports that the activities performed in the surveillance footage were done very slowly, carefully and with difficulty whilst in considerable pain. As such, the surveillance footage does not alter my opinions based on my assessment of Mr. Michalopoulos.”[74]
[74]PCB 250-253
88In a supplementary report of 24 May 2021,[75] Mr Asaid was provided with an MRI report of the right knee performed 30 October 2020 and asked for further comment. He said that:
“The MRI of the right knee performed on 30 October 2020 demonstrated moderate to severe medial compartment degenerative change. Given these findings, it further affirms my opinion that coupled with the level of pain and dysfunction Mr. Michalopoulos experiences, he may require a right total knee replacement in the future.”[76]
[75]PCB 254
[76]PCB 255
89In written submission, the defendant submitted that:
“Neither the clinical notes from the original GP and/or from Middle Park Physiotherapy and/or the report of Dean Little[77] are strongly suggestive of an acute tear occurring at the time of the fall.”[78]
And that:
“Mr. McQueen treated the plaintiff in relation to his alleged knee injuries, particularly the right. It was predicated on a history of a ‘twisting injury affecting both knees’.[79] This mechanism of injury is not borne out anywhere else.”[80] [not checked]
[77]PCB 913
[78]Defendant’s Written Submissions, paragraph [48]
[79]PCB 101-102
[80]Defendant’s Written Submissions, paragraphs [49]
90The issue therefore is whether the plaintiff has a right knee causally related to the fall. Despite my misgivings regarding the reliability of the plaintiff as a witness, there is sufficient objective and relatively contemporaneous complaint of problems with the right knee, or in fact both knees, following the fall. Accordingly, on balance, I accept that the plaintiff suffered injury to the right knee in the fall, consistent with the medical opinions as set out.
91The next question then is whether the right knee, in isolation, is a “serious injury”. This is a difficult question to answer for a variety of reasons, including the fact of the plaintiff having symptoms in the left knee which would to some extent replicate the claimed losses or impairments caused by the right knee.
92This question is further complicated by the past history of symptoms in the plaintiff’s knee and the nature of the pathology in the knee, bearing in mind that the objective medical records confirm that the plaintiff has been an obese man for many, many years and the likely impact of weight bearing on his knees because of his obesity. When the plaintiff was examined by Dr David Elder on 17 August 2001, Dr Elder recorded that the plaintiff was “vastly overweight at 120 kilograms”.[81] A clinical note from Dr Light, records the plaintiff’s weight at 144 kilograms as at 1 June 2011.[82] Indeed, the plaintiff’s weight has been of sufficient concern to him for him to undergo gastric banding surgery.
[81]DCB 22
[82]DCB 293
93The plaintiff underwent x-rays of both knees on 19 December 2012. In a report of 20 December 2012, the x-ray is described as demonstrating:
“X-RAY BOTH KNEES
Minor degenerative changes are present in the patellofemoral joints with some subarticular cyst formation and on the left side there is a small lateral osteophyte. There is no joint space narrowing. There is no joint effusion. The femorotibial joints appear normal.”[83]
[83]PCB 238
94The plaintiff then underwent an MRI scan of both knees on 7 March 2013, the conclusion of which was reported as follows:
“1. There is a tear of the posterior horn of the right medial meniscus.
2.There is mild chondral wear seen over the posterior aspect of the right medial tibial plateau with subcortical bone oedema.
3.There is mild chondral wear seen in the centre of the trochlea of the right knee with chondral thinning, fissuring and early fraying with a small fissure in the hyaline cartilage over the right lateral patellar facet.
4.There is a mild right joint effusion.
5.No meniscal tear is seen in the left knee.
6. There is chondral thinning and early fraying in the centre of the left trochlea.
7.There is a small Baker’s cyst seen In the left knee.”[84]
[84]PCB 240
95There was then a gap before further radiology was undertaken to the right knee. An MRI scan of 13 July 2018 was reported as follows:
“Horizontal cleavage tear of the posterior horn of the medial meniscus.
Intact cruciate, collateral ligaments and lateral meniscus.
Grade 1 chondromalacic changes of the patella. Focal chondral fissuring, thinning and subchondral oedema along the anterior aspect of the lateral femoral condyle.”[85]
[85]PCB 241
96Accepting that the plaintiff suffered injury to the knees, including the right knee, in the fall, on balance I accept that the tear to the medial meniscus (as demonstrated on radiology) occurred in the fall and required the plaintiff to undergo arthroscopic surgery.
97Clearly the plaintiff now has more significant problems with his right knee other than the tear to the medial meniscus. Mr Asaid described “right knee medial meniscus tear treated surgically with radiological changes consistent with right knee osteoarthritis” and “left knee osteoarthritis”.[86]
[86]PCB 250
98In his further report of 24 May 2012, as already mentioned, Mr Asaid noted “moderate to severe medial compartment degenerative change” and that the plaintiff may require a right total knee replacement in the future.[87]
[87]PCB 255
99Pausing here, the totality of the medical opinion is that the plaintiff may require a right knee replacement in the future. That would be a procedure required because of the underlying degenerative or osteoarthritic change. The issue is then whether that degenerative condition has been caused or contributed to by the fall. At this point, I note that Mr Asaid had an incomplete history of the plaintiff having no prior knee problems before the fall.
100A review of the whole of the medical evidence and the objective evidence tends to the conclusion that the plaintiff has bilateral osteoarthritis in the knees, unrelated to the fall. Having considered all of the medical material, I prefer the opinion of Mr Dickinson, orthopaedic surgeon, that the plaintiff has a degenerative condition in the knee for which he may require knee replacement.[88]
[88]PCB 169
101Regardless, I am simply not satisfied that the plaintiff has a “serious injury” to his right knee, even if the degenerative condition in it has been caused or contributed to by the fall. That is because, first and foremost, the claimed impairment consequences from the right knee have not been sufficiently separated out from the left knee. The point is nicely illustrated in the report of Mr Asaid, who placed the same restrictions on the left knee as he did on the right knee.[89]
[89]PCB 251-252
102Further, whatever impairment consequences can be ascribed to the right knee, they do not, in my view, meet the test of “very considerable”. As the video surveillance demonstrates, the plaintiff is still able to engage in a wide range of daily activity. As noted by Mr Lording, in respect to the right knee on its own, the plaintiff should have the physical capacity to perform some alternate work duties, on at least a part-time basis.[90] Yet the plaintiff has made absolutely no effort to look for paid employment. I agree with Dr David Barton, consultant occupational physician, who, in a report of 12 May 2021, said that he did not “accept that his knee problem is anywhere knee as disabling as he points out”.[91] Of course, this was an opinion expressed with the benefit of having seen the early video surveillance.
[90]PCB 181
[91]PCB 143
103Accordingly, while I accept the plaintiff suffered injury to the right knee in the fall, I do not accept the underlying degenerative condition to be related to the fall and, in any event, I do not accept that the plaintiff has “very considerable” consequences from the right knee in isolation.
The investment properties
104At this point, I wish to pause to discuss the plaintiff’s evidence regarding his investment properties because that evidence is relevant, not only to his credit, but also in the broad sense to the issue of work capacity, regardless of which injury is being analysed.
105The plaintiff has owned, or had an interest in, several investment properties in Oakleigh and in Middle Park, Victoria. The first two affidavits make no reference to those investment properties. The plaintiff then swore a third affidavit, after he was aware of the video surveillance demonstrating him attending at investment properties, in which his evidence about those properties was, to say the least, very brief. He said:
“In relation to my household and domestic life, the symptoms and restrictions deposed of in my earlier affidavits are about the same. I have my better moments, however, and I try to feel useful and to do basic handy man tasks, both around the house and also at my rental properties, but it typically ends up in pain. Luckily, there is not much maintenance work involved in the rental properties, as the tenants look after the garden. In between tenants I will try to do a bit of cleaning, with the help of family and friends. I had to ask family members to paint one of the properties, which is something that I would have normally done myself before the injury. At one of my properties I had to replace the roof of the car port. Normally I could have done this myself prior to my injury, but because of my pain and restrictions, I was unable to perform this task myself and required the assistance of family and friends. I feel guilty because I don’t want to be a burden on my family and friends.”[92]
[92]PCB 52-52
106The plaintiff’s involvement in the rental properties and the income from those rental properties has been a relevant issue in this application for some time. Indeed, it was at the heart of at least one of the earlier adjournment applications. There was lengthy cross-examination of the plaintiff on draft tax returns that were exchanged at an early point in time and which made no reference to the rental properties, and then also on the subsequent taxation returns as lodged with the Taxation Office. There was also substantial cross-examination based on a corporate entity that the plaintiff controls and real estate that it owns in St Kilda Road, Melbourne, and share trading that it had engaged in some time ago, after the plaintiff himself borrowed substantial sums of money. It is unnecessary and beyond the scope of these reasons to set out all of the relevant evidence in regard to this issue.
107The plaintiff did, however, on the second day of the hearing before me, provide a fourth affidavit dated 8 June 2021,[93] which exhibited tax materials and provided some limited information about his ownership or interest in various properties, but still failed to provide any meaningful evidence about what he actually did at those properties.
[93]PCB 270
108The plaintiff’s oral evidence about who occupied the rental properties and his attendances and involvement at those properties was bizarre. The video surveillance appears to show him coming and going as he pleases from one or the other of the investment properties. It clearly demonstrates him engaging in some maintenance or repairs at the property, such as measuring the pergola and installing blinds. He was asked many questions about what he actually does at the property. He attempted to convey the impression that he attends the property from time to time in a supervisory capacity when others undertake maintenance or repairs at the property. As he said, “I might be there to tell them what I want done or things like that”.[94]
[94]T260, L7-9
109With some reluctance, he gave evidence that he had done some tiling in the bathroom at one of the properties and might have done a little bit of painting.[95] In respect to the installation of a new kitchen, he denied installing the kitchen or undertaking a significant renovation,[96] although he did assist his brother, who did the work.[97]
[95]T260, L18-25
[96]T272
[97]T275, L3-4
110Later on in cross-examination, he gave evidence of having done some tiling in the kitchen at one of the investment properties, but insisted he had not done any other tiling (inconsistent with his earlier evidence).[98]
[98]T296, L18-19
111The plaintiff’s affidavit evidence regarding the investment properties is wholly unreliable and unsatisfactory. He gave no meaningful evidence in his affidavits either as to the income he earns from those investment properties or his attendance at them, and what he does at the properties. Clearly, he is able to arrange for tenants at the properties, even if those arrangements are unusual to say the least. Clearly, he is able to attend at the properties and undertake at least moderate repairs and maintenance. The circumstances of the exchange of the draft affidavits, which made no mention of the investment properties, and then the subsequent attempt to come clean with the provision of the subsequent tax returns, is wholly unsatisfied.
112In my view, the plaintiff engaged in a deliberate deception in his early affidavits by failing to make any mention of the investment properties, the income from them, or his involvement in those properties. At the very least, his involvement in those properties demonstrates that he is not as bad as he says he is (no matter which injury is looked at) and would at least have some capacity for work.
113Very quickly, I also note the most unusual evidence about the video surveillance that demonstrates him driving a car with advertising for a computer repair business on it. That type of work would seem to be within his intellectual capacity. I accept the submissions of the defendant that an adverse inference can be drawn by the failure to call his friend, who apparently owns the computer repair business, and sold the car to him.
114The cross-examination and the video surveillance, in my view, confirms that the plaintiff is not as bad as he says he is, and has a residual capacity for work. I prefer the opinions of the medical practitioners who have arrived at the same conclusion. Further, I conclude that he has made no meaningful effort to re-train or look for work, in circumstances where the evidence demonstrates he has a residual physical and intellectual capacity.
The claimed psychiatric injury
115At the outset, having seen the plaintiff in the witness box and in the video surveillance, the short answer to this aspect of the application is that whatever psychiatric condition the plaintiff may suffer from, it is simply not “severe”.
116The plaintiff also has a relevant past psychiatric history that is not properly explained in his affidavits and which has not been properly revealed to the examiners. The treating psychiatrist, Dr George Wahr, simply has no history of any past psychiatric difficulties. From the bar table, I was told that Dr Wahr is currently unwell and the plaintiff has been unable to obtain a report from him confirming that information setting out that past history had in fact been provided to Dr Wahr. I was asked to draw an inference that the doctor, having had that information and not commenting upon it, meant that he did not consider it to be significant. I am not prepared to draw that inference. Equally, it could be inferred that the doctor had overlooked the information. It does impact upon the weight that I attach to his reports.
117However, the lack of a pre-morbid history to Dr Wahr (and others) at the end of the day is largely irrelevant. That is because the plaintiff has exaggerated his current claimed psychiatric symptoms. To illustrate the point, at various attendances on Dr Wahr, the plaintiff recorded extreme symptoms such that the doctor recommended he not drive, including following an attendance on 3 June 2019, when the plaintiff described symptoms including problems with sleep and concentration.
118Curiously, the video surveillance shows that he is able to go about ordinary daily activities, driving regularly with no apparent restrictions. The video demonstrates that he is able to meet with neighbours, tenants and prospective tenants, at his various investment properties. His oral evidence confirmed that he was able to at least “project manage” a kitchen renovation and assist his brother. On one occasion in the video surveillance, he is shown transporting his elderly mother to a medical appointment and then attending at a pharmacy. True it is that video surveillance is only a snapshot of a particular moment in time but, nevertheless, and bearing in mind to some extent the limitation of video surveillance for a claim based on psychiatric injury, the video surveillance in my opinion is at odds with what the plaintiff has told the doctors regarding his psychiatric symptoms and lack of involvement in ordinary day to day activity.
119Dr Wahr was shown the early video surveillance and asked whether that altered any of his opinions. His answer was “No”.[99] In that regard, Dr Wahr had previously opined that the plaintiff was “a very sick man and takes significant doses of medication”, and that the plaintiff “has no work capacity whatsoever”.[100] I do not accept Dr Wahr’s description as correctly describing the plaintiff’s current presentation. He did not present in Court, or on the video surveillance, as a “very sick man”. I have already noted that Dr Wahr did not have an accurate premorbid history from the plaintiff and, similarly, he does not have an accurate history from the plaintiff as to his true level of activity and day to day function. Further, there is also the more recent video surveillance and the cross-examination of the plaintiff regarding his involvement in the investment properties and ability to freely engage in daily activities such as shopping and caring for his mother, which is the reverse of the picture the plaintiff has attempted to paint in his evidence and to the doctors, where he has instead described his lack of activity and the need for assistance from his mother.
[99]PCB 169
[100]PCB 167
120When all of the objective evidence is taken into account, then it impacts significantly on the weight that I attach to Dr Wahr’s opinion – and indeed the other doctors’ opinions that I will briefly set out in due course. Dr Wahr is no doubt attempting, in a compassionate way, to treat his patient and to give him the benefit of the doubt, but that is something that I am unable to do. Of course, there is no up to date report from Dr Wahr, even if there is a proper explanation for that and so it is speculation as to what Dr Wahr would now say if he had the true picture of his patient’s condition.
121The plaintiff has been treated by Dr Richard Hall, counselling psychologist. Dr Hall has provided a number of reports, the most recent of which is dated 31 May 2021.[101] It is sufficient to only mention that report for present purposes. In that report, Dr Hall diagnoses various psychological conditions he considers referrable to the plaintiff’s employment.[102] He states that there had been some reduction in the anxiety disorder and stress levels from “extremely severe” to “moderate levels”.[103] He otherwise goes on to describe quite extreme symptoms and opines that the plaintiff has and remains incapacitated for performing suitable employment.[104]
[101]Third Amended PCB 259
[102]PCB 261
[103]PCB 263
[104]PCB 264
122I conclude that Dr Hall’s opinions are also to be taken in the context of a caring, treating practitioner who has given his patient the benefit of the doubt. The extreme symptoms, as described by the plaintiff to Dr Hall, are not supported by the objective evidence. For example, Dr Hall, in his most recent report, suggests that the plaintiff be assigned a case worker “to assist him in day to day issues like shopping and deal with paperwork which he finds very hard to handle”.[105]
[105]PCB 264
123Yet it is clear from the objective evidence that the plaintiff is well-able to engage in a range of day to day activities, including shopping, managing his investment properties and the like. I make no criticism of Dr Hall, but I do not accept his opinions because he has not been given the true story by his patient.
124Dealing briefly with the medico-legal psychiatric opinion, the plaintiff has been examined at the request of his solicitors by Dr Leon Turnbull, consultant psychiatrist. In a report dated 22 September 2020, Dr Turnbull said that he was inclined to diagnose a depressive disorder driven by the plaintiff’s physical conditions. He opined that the prognosis was now “not good”,[106] and that the plaintiff was now “not employable”.[107]
[106]PCB 198
[107]PCB 199
125Then, in a short supplementary report of 20 May 2021,[108] Dr Turnbull expressed further opinions following a re-assessment of the plaintiff. From that material, Dr Turnbull was aware of video surveillance although, as he commented, he had not watched the video surveillance footage himself.[109] He then went on to state that his previous diagnosis of a “depressive disorder due to another medical condition, that being the cumulation of his physical conditions” remains unchanged.[110]
[108]PCB 256
[109]PCB 257
[110]PCB 257
126However, as Dr Turnbull fairly noted in his most recent report, the accuracy of his diagnosis rests almost entirely on whether the plaintiff’s physical conditions are correct and the accuracy of his reporting of his physical state. This does raise a question as to whether Dr Turnbull in fact was attempting to explain that he doubted the veracity of the information provided to him. As he said recently, he stuck to his previously expressed opinions “unless he has provided an unreliable account”.[111]
[111] PCB 258
127In any event, it is a fair concession for Dr Turnbull to make and, as will be clear from these reasons, I reject much of the plaintiff’s evidence. I find that Dr Turnbull – like the other doctors – has, in fact, been provided with an unreliable account. The plaintiff has, in my opinion, exaggerated the extent of any psychiatric symptoms, and he has done so by some considerable margin. Based on that finding, it significantly impacts on Dr Turnbull’s opinion as to the extent of the plaintiff’s psychiatric symptomatology and causes me to reject his opinions.
128The defendant has obtained medico-legal psychiatric opinion from Dr Entwisle and Dr Prytula. I take those opinions into account. Dr Entwisle initially diagnosed a major depressive illness and a pain syndrome in his early reports. However, in his most recent report of 26 March 2021, Dr Entwisle notes that the plaintiff had not provided an accurate history to him. Further, Dr Entwisle perused the video surveillance and commented that what was seen in the video surveillance was “not consistent with the symptoms and restrictions as detailed by Mr Michalopoulos to myself”. He then said that “from a psychiatric perspective, the actions and activities seen in the surveillance footage are not consistent with someone with an alleged chronic pain syndrome”.[112]
[112]DCB 92
129In my view, Dr Entwisle had also given the plaintiff the benefit of the doubt in his early reports but, when provided with objective evidence of the plaintiff’s true level of activity, he has recanted from those early opinions.
130Dr Prytula, in a report of 9 November 2017, diagnosed an adjustment disorder with mixed anxious and depressed mood of mild to moderate severity. He found that there was a mild to moderate effect on the plaintiff’s daily activities and living.[113]
[113]DCB 123
131Firstly, Dr Prytula’s report is not considerably out of date and of little assistance. Obviously he did not have the benefit of the video surveillance or the evidence before me. Secondly, insofar as Dr Prytula did diagnose a psychiatric disorder of mild to moderate severity, that condition, as diagnosed by him, in my assessment, is not “severe” for the purposes of this application.
132The plaintiff has a complicated psychiatric history, both before and after the fall. It is clear that he came into conflict with his employers after the fall. The defendant submits that the conflict with his employers is the cause of any ongoing psychiatric symptoms and not a response to the fall or any injury suffered in it. I do not need to decide that issue because, whatever the cause of the plaintiff’s current psychiatric incapacity, such incapacity is not, in my opinion, “severe” when the objective evidence is taken into account. Accordingly, I am not satisfied that the claimed psychiatric injury is “severe”.
Conclusion
133For the reasons set out, the application is dismissed. I am not satisfied that any of the claimed serious injuries are either causally related to the fall or, in any event, are “serious”.
134I shall hear the parties as to the question of costs.
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