Mills v Keating Plasterers
[2010] VCC 1455
•8 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03268
| BRETT CHRISTOPHER MILLS | Plaintiff |
| v | |
| KEATING PLASTERERS | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 21 and 22 September 2010 |
| DATE OF JUDGMENT: | 8 October 2010 |
| CASE MAY BE CITED AS: | Mills v Keating Plasterers |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1455 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment of the cervical spine- left shoulder – chronic pain syndrome- non organic factors- psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony Lawyers |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on during the course of his employment in or about May 2007 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.
5 The body function relied upon in this case is the cervical spine, left shoulder, and psychiatric impairment.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”;
(vi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(viii) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(xii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
6 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is a single thirty-three year old man, having been born on 19 September 1977. The plaintiff lives alone in Albury and he is presently in receipt of a Disability Support Pension.
9 The plaintiff was educated to about Year 10. Until he started work with the defendant as a driver in about 2003, his work history is unclear but it seems he was in receipt of unemployment benefits prior to that time.
10 The plaintiff worked about thirty six hours a week for the defendant, earning $19.55 per hour. His work involved him performing heavy and awkward lifting of plaster, weighing between twenty and sixty kilograms, including twenty five kilogram buckets of compounds.
11 The plaintiff had experienced pain in the middle of his upper back between his shoulder blades a couple of years before the said date, when a fellow worker let go of a piece of plaster they were both holding together. At that stage the plaintiff saw a specialist, who told him there was nothing wrong and to go back to work. The plaintiff went onto light duties for a couple of weeks and then returned to his normal duties and did not pursue a compensation claim.
12 As a result of the lifting, including lifting heavy plaster while walking on uneven ground and bending awkwardly in the said period, the plaintiff developed neck and left shoulder pain.
13 Having deposed that he suffered injury during 2007 and on 20 May 2007, the plaintiff explained that he was told by the pay mistress on the day he gave the claim form to her – namely, in July 2007 – to backdate the date of injury to the date when the plaintiff first started getting sore.
14 The plaintiff did not suffer injury in a specific incident; “it was an ongoing sort of process – it did not happen on one day – it built up”.
15 In cross-examination, the plaintiff said that he reported the injury to the defendant months before he filled out the claim form. The plaintiff told Mr Keating he had hurt himself and that he was getting sore. Mr Keating came on a delivery run with him and could see how sore he was and told him not to continue carrying plaster but just to slide it off. The plaintiff denied telling Mr Keating that he had a sore low back. Further, the plaintiff denied that he had ever hurt his low back.
Medical Treatment
16 The plaintiff was initially referred for physiotherapy treatment of his symptoms which were then severe. He also attended his general practitioner and was prescribed anti-inflammatory and painkilling medications. Following the said period, the plaintiff was experiencing pain between his neck and shoulder blades, mainly on the left side.
17 The plaintiff was referred for an MRI scan and for shoulder imaging. He was also treated by way of self mobilisation exercises and deep tissue massage. He was then referred to Mr Hillier, orthopaedic surgeon, for investigation and treatment.
18 The plaintiff’s symptoms of neck pain, shoulder pain and upper back pain forced him to cease work on 24 July 2007, and he has not returned to work since that time.
19 After seeing Mr Hillier, the plaintiff was then referred for manipulation of his neck under general anaesthetic, which was carried out after some delay on 13 March 2008. Following this procedure, the plaintiff developed pins and needles and disturbance of sensation in his left little and ring fingers. A second manipulation was carried out later in 2008. The manipulations assisted the plaintiff for about three days thereafter.
20 The plaintiff continues to require treatment for his neck and shoulder pain and symptoms. He has undergone two Botox injections provided by Dr Todhunter, pain management specialist, most recently having an injection on 5 August 2010.
21 The plaintiff obtained about seven months’ improvement from the first injection. The last injection took the sharp stabbing pain out of his shoulder. The plaintiff still has pain but the injection “just takes the annoyance out of it”.
22 The plaintiff presently takes Oxycontin and Tramal for pain. He takes Avanza, two 45 milligram tablets per day for depression, and Temazepam to help him sleep at night as he has difficulty sleeping as his neck is very uncomfortable. He takes Nexium for stomach ulcers caused by the other medication and he also takes between five and ten milligrams of Valium a night. The plaintiff pays for his own medicine because WorkCover stopped paying. The side effects of medication leave him with a dry mouth.
23 The plaintiff continues to perform exercises as prescribed by Dr Todhunter. The plaintiff does not consider himself very fit and he did not do any exercises for his upper body.
Current Pain
24 The plaintiff has continuous ongoing left shoulder and left-sided neck pain, variable and at times quite severe. This pain results in limitation of movement. He has to take considerable amounts of medication at those times, namely, two Oxycontin and three Tramal a day.
25 His neck and left shoulder hurt the most and that was a problem he had every day that would stop him doing things on some days, depending on the type of activity. He cannot lift anything heavy.
26 The plaintiff’s pain varies from six to eight out of ten day by day, even if he just moves or sleeps the wrong way. The severe left shoulder pain and shoulder blade pain is particularly painful if he happens to sleep on it.
27 Whilst in the witness box, the plaintiff took off his shirt and showed his upper torso to Counsel and myself. His left shoulder was higher than his right and the plaintiff said he always stood with his shoulders in that position.
28 The plaintiff also suffers from fairly constant headaches at the rear of his head and also in his temples.
29 The plaintiff suffers from entrenched, severe depression, as a result of which he constantly loses it, becomes irritable, upset, moody and short tempered. He feels low and unmotivated, unhappy, depressed and he has severe problems with memory and concentration.
30 In re-examination, the plaintiff confirmed that as far as depression is concerned, regularly he has moodiness and a temper and he is not sleeping.
31 The plaintiff has had some chest symptoms which he has been advised were caused by anxiety.
32 The plaintiff has never been treated by a psychiatrist or psychologist.
33 The plaintiff takes anti-depressants and Valium because otherwise he would probably end up knocking himself off. He has considered suicide.
34 Some days the plaintiff just does not feel like doing anything because of his pain and he is in tears because of it.
35 The plaintiff does not want to apply for jobs because he does not want to get knocked back as this would upset him even further.
36 In cross-examination, the plaintiff agreed he still smoked marijuana, having smoked from the age of thirteen. He has reduced his drinking to four or five cans of Bourbon and Coke to maybe twice a week.
Activities
37 As a result of his neck and left shoulder pain, the plaintiff is limited in a range of recreational and domestic pursuits, in particular driving, as it is unsafe given his limitation of neck movement.
38 The plaintiff’s sitting and standing limits vary. He has not really stood for over an hour.
39 The plaintiff used to socialise regularly and enjoyed going out with his mates to the pub.
40 The plaintiff is restricted in household activities and housework, particularly hanging out the washing and vacuuming. He does his own cooking, washing and the dishes. He does not clean his room at all.
41 The plaintiff’s two children, aged twelve and eight, live with their mother in Albury. The plaintiff has access to them on a regular basis over the weekend. The plaintiff assists with the housework when the children are with him but he has difficulty because of his symptoms.
42 The plaintiff has mowed his friend’s mother’s lawn on a ride-on mower and helps her out occasionally with her shopping because she has a heart condition.
Work 43
The plaintiff has not worked since about August 2007 because he is in too much pain and due to the medication he is taking. He does not have any physical ability to work and if he looked for work he would get knocked back. He also remains unable to return to work given his little education, little experience and the fact he has no real skills.
44
The plaintiff would like to return to work at some stage in the future, perhaps in a driving capacity, when he is able to drive safely : when he does not have restrictions in relation to neck movement and he does not have to take the types of medication which make driving too risky.
45
In cross-examination, the plaintiff explained that he thought he could not work because he was physically and mentally impaired and both problems concerned him. The plaintiff could not do his old job because the plaster was too heavy to lift.
46
The plaintiff did not think he could work in a carwash because he would have to stretch his left arm and he could not do that all day. He would end up with a very sore right hand because he could not use his left.
47
The plaintiff thought he could not work as a night filler because he has to take anti-depressants to help him sleep. He also takes Valium which knocks him around a bit.
48
The plaintiff remains incapacitated for employment and is losing income at a rate of $650 net per week.
Schedule of the Plaintiff’s Earnings
Financial Year Employer Gross Yearly Gross Weekly
Earnings Earnings
2004 Government allowance $ 7,428 $142.84 2005 Keating Plasterers $32,391 $622.90 2006 Keating Plasterers $32,696 $628.76 2007 Keating Plasterers $35,693 $686.40 2008 Keating Plasterers $27,653 $531.00
Video Surveillance
49 Prior to the hearing, the plaintiff had not seen the video surveillance. He thought it probably took him about twenty minutes to wash a car and he would have to bend, squat and use his right arm when doing so.
50 The plaintiff explained that he was shown using his right arm extensively in the video because his left arm and shoulder were sore. When asked about his movement, at times shaking out his left arm with the chamois, he said he was “cracking” his shoulder as he could feel it locking.
51 The plaintiff disagreed the level of activity shown on the video was typical of his level of activity and he explained that he was filmed on a good day.
52 When it was suggested to the plaintiff he was fabricating, as Dr Bowles described, he said the doctor saw him for only fifteen minutes and the doctor does not know him.
The Plaintiff’s Medical Evidence
53 The plaintiff attended Health Focus Physiotherapy on 20 July 2007 with quite significant thoracic spine pain and muscle spasm. He advised the treating physiotherapist that the pain had worsened and he tried to put up with it for a few weeks. The physiotherapist thought the pain was quite pronounced and that the plaintiff would need a few sessions to improve. It was noted the plaintiff would most definitely improve if he was on light duties for a few weeks or so.
54 Dr Mobilia, the plaintiff’s general practitioner, wrote to Mr Hillier, orthopaedic surgeon, on 28 August 2007, including a copy of his clinical note of that date:
“Five months of gradually worsening neck pain with a significant reduction in range of movement in all directions. Chronic torticollis. MRI of the cervical spine no abnormalities. My colleague John Moran has done some shoulder imaging which is ‘no abnormalities’. I have organised therapeutic in office digital heat and ultrasound, self- mobilisation exercises, deep tissue massage in Wodonga and analgesia. I feel he probably requires manipulation under anaesthetic. I would appreciate your expert curative counsel re same.”
55 By letter dated 6 May 2009, Dr Mobilia wrote to QBE Insurance advising that the plaintiff was not medically fit to drive and needed to have taxis to attend medical appointments. On 20 May 2008, Dr Mobilia certified the plaintiff unfit to attend a medical review in Wangaratta.
56 On 9 July 2009, Dr Mobilia reported that he thought the plaintiff had a severe torticollis affecting his neck, and secondary depression, which included disturbed sleep.
57 Having commented on the plaintiff’s work process, Dr Mobilia stated:
“… The general sequence with these relatively common injuries in these types of workers is initially there is an apophyseal joint injury in the neck or cervical spine which leads to a muscle spasm and locking about the neck. The pain can radiate as it does into the shoulders, in this case pain radiates to the left shoulder.”
58 Dr Mobilia thought, as he set out in WorkCover certificates, that the plaintiff would not be able to return to pre-injury duties. He also had detailed on WorkCover certificates for quite some time that the plaintiff could be re- trained, and that he had attempted alternative work in his former workplace in the presence of an occupational therapist and could not cope, at which time all attempts at rehabilitation ceased.
59 Dr Mobilia thought, although the plaintiff could not undertake labour type work, alternative work and the training for same should be attempted. Such work included bar work, taxi driving, security guard work or similar duties with the appropriate training and certification.
60 Mr Hillier wrote to Dr Mobilia on 26 March 2008.
61 Mr Hillier advised that the plaintiff’s management had found him increasingly troubled with left shoulder pain which interfered with the initial gains achieved with the manipulation carried out on 13 March 2008. Mr Hillier found there was a distinct gaining of full movement with release of adhesions in the lower cervical spine on that occasion.
62 Mr Hillier noted, because the plaintiff’s left shoulder pain had become more intense, it interfered with the plaintiff’s ability to work through his exercise program and as a result, although he was certainly showing a free range of neck movement, that was still a problem that needed to be fixed.
63 Mr Hillier was puzzled why the plaintiff’s left shoulder should be so painful given that assessment of the plaintiff in October 2007 saw him have a free range of upper limb movement and no restriction of shoulder activity. Mr Hillier thought this needed to be clarified so he requested an up-to-date MRI scan of both the plaintiff’s cervical spine and left shoulder.
64 Mr Hillier advised, if both areas were structurally sound, a stretch of the shoulder and a re-stretch of the cervical spine would be appropriate, but he would then follow that with three inpatient days of cervical traction and active exercises.
65 In his report to CGU Insurance of 16 January 2009, Mr Hillier noted that the plaintiff was first seen by him on 23 October 2007.
66 Mr Hillier advised that he performed manipulation under anaesthetic on 13 March 2008, after which the plaintiff demonstrated immediate good recovery of neck movement but fairly rapidly lost that gain with his neck locking up two weeks later.
67 Because the plaintiff also complained of some ulnar nerve paresthesia in the left hand, Mr Hillier arranged for an updated MRI scan of both the neck and left shoulder, which again confirmed structural normality apart from there being some evidence of some minor adhesion within the left shoulder. Mr Hillier then thought it remained appropriate to release those adhesions with a further stretch under anaesthetic.
68 Having undergone that procedure a second time, the plaintiff was able again to demonstrate quite immediate full function of both areas, but again lost ground within ten days, and he was referred to a spinal physiotherapist.
69 On 18 August 2009, that physiotherapist was not able to advance the plaintiff further and she concurred with Mr Hiller that the next step was a pain management program.
70 Mr Hillier thought the plaintiff’s prognosis for returning to suitable employment must remain cautious given his tendency to describe restricted neck movement and shoulder pain, yet both areas showed no evidence of permanent pathology.
71 Mr Hillier thought non work-related factors may be impacting on the claimed injury and that was why the Pain Management Unit had been asked to continue involvement.
72 Mr Hillier assumed the plaintiff’s current work incapacity was temporary given the evidence that he had structural health in both his neck and left shoulder.
73 Mr Hillier noted a functional capacity evaluation could certainly be undertaken but he suspected that it would find the plaintiff’s shoulder pain would restrict him from co-operating fully with that and it would be best pursued after a pain management program had been completed.
74 Given the fact there was no abnormality on investigation and the plaintiff showed evidence of structural health, Mr Hillier had concerns there were non- organic factors that were restricting him and he looked forward to the observations and assessment of the Pain Management Unit.
75 Dr Todhunter wrote to QBE Insurance on 18 March 2009 advising the plaintiff continued to have significant spasms with elevation of the left scapula. In his view, the plaintiff clinically had a focal dystonia affecting the muscles, innovated by the accessory nerve. In that correspondence, Dr Todhunter sought approval to undertake Botox injections in the affected muscles to try to relax them and so reduce the plaintiff’s pain and improve function.
76 On 18 March 2009, Dr Todhunter wrote to Dr Mobilia advising, although the plaintiff had made reasonable gains in terms of mobility during the pain management program, he was still troubled by significant pain and elevation of his left shoulder scapula.
77 Dr Todhunter noted the plaintiff had undertaken a lot more activity during the pain management program and perhaps that was what increased his pain in the area lateral to the spine and on the left, around T2 to T4.
78 Dr Todhunter suggested the plaintiff resume non-steroidal anti-inflammatories for a short time to see if that helped. He also gave him a prescription for Baclofen to see if that would help with the spasticity. Dr Todhunter advised the only other further method likely to reduce muscle spasm and subsequent pain would be Botox injections, for which he was seeking approval.
79 On 29 October 2009, Dr Todhunter carried out the first Botox injection. On 5 August 2010, having diagnosed focal dystonia of the left trapezius and levator scapular muscles, Dr Todhunter gave the plaintiff a second Botox injection into his left trapezius and levator scapular muscles.
80 In the operation report, Dr Todhunter noted the plaintiff had had considerable relief for up to six months after the October 2009 injection and, in his view, that should be the case again.
The Plaintiff’s Medico-legal Evidence
81 Mr Leitl, orthopaedic surgeon, saw the plaintiff on 18 September 2007 on behalf of CGU Insurance. On examination, the plaintiff was in constant pain, indicating the posterior aspect in the midline of the neck. There was considerable neck stiffness and constant occipito temporal headaches. The plaintiff told Mr Leitl both shoulders ached constantly and felt tight.
82 On examination of the cervical spine, there was tenderness in the midline and to either side. The plaintiff held his head in a forward motion and was reluctant to move.
83 Examination of the shoulders showed a normal contour and there was no frozen shoulder or crepitus. The plaintiff disliked elevation of his arms above 80 degrees because this aggravated his neck pain.
84 There was a flattened kyphosis on examination of the thoracic spine and there was tenderness in the left T10 area and a reduced range of rotation. Neurological examination of the upper limbs was normal apart from a slight tingling in the tip of the left finger.
85 Mr Leitl noted an MRI of the cervical spine of August 2007 was normal.
86 Mr Leitl diagnosed left thoracic muscular strain with secondary myalgia of the muscles around the neck and shoulders.
87 Mr Leitl concluded, in the absence of other factors, it appeared the plaintiff’s employment had been a significant contributing factor to his current complaints of left thoracic pain due to a muscular strain with secondary myalgia affecting the neck and shoulder muscles.
88 At that stage, Mr Leitl thought the plaintiff’s condition had not resolved and continued to materially contribute to his current incapacity for work and need for treatment. He noted the plaintiff had a significant reduction in neck and shoulder movements due to a secondary myalgia from a thoracic spine muscular strain. Mr Leitl thought at that stage the plaintiff’s incapacity was temporary and should improve with further treatment, particularly in view of the normal MRI. He thought pool therapy and an exercise program would improve the plaintiff’s condition.
89 Mr Leitl concluded the nature of the plaintiff’s workplace duties, particularly the heavy lifting involved on a repetitive basis, was contributing at that stage to his current work incapacity.
90 Mr Leitl considered the performance of a surgical manoeuvre under anaesthetic suggested by Mr Hiller was a reasonable and appropriate procedure to be performed and was being performed for the management of the plaintiff’s work-related condition.
91 Mr Robin Williams, orthopaedic surgeon, provided a number of reports, having twice examined the plaintiff on behalf of the defendant, initially on 12 June 2008.
92 After this first examination, Mr Williams commented that the plaintiff presented with a rather unusual pattern of pain and restricted movement of his neck and left shoulder. He noted, from information he had received, it appeared the plaintiff had suffered muscular strain during the course of work. That condition had not resolved and was then materially contributing to the plaintiff’s incapacity for work. He thought the plaintiff’s prognosis was very difficult to predict and also, it was difficult to define whether further treatment was required.
93 Mr Williams concluded that the plaintiff was concerned and anxious about his condition and the lack of explanation as to why it was present. Mr Williams noted that there may be a significant psychological component to the plaintiff’s continued sense of illness.
94 Mr Williams was then provided with video surveillance taken on 11 and 12 November 2008 and a DVD of 9 January 2009 of the plaintiff’s activities.
95 Mr Williams noted the plaintiff appeared to move his head and neck more freely than at the time of consultation. He commented however, that he did not think that video gave any significant information about the plaintiff’s medical condition.
96 On review on 21 January 2009, when Mr Williams asked the plaintiff how he was at that stage, the plaintiff replied, “I need to have something done for my sanity”. He said he was not sleeping properly and pain was a constant annoyance.
97 On examination, the plaintiff held his neck and head very still. He rotated approximately 10 degrees and complained he felt increased pain on the left side. He could not extend his head and neck past neutral and the range of flexion was about 10 degrees. The plaintiff appeared to be unable to raise his left arm more than 60 degrees from the side and performed that movement rather shakily and complained of increased pain.
98 Mr Williams commented on that occasion that he was unable to define any specific disease or abnormality of the muscular skeletal system. He noted the plaintiff appeared to have a type of Chronic Pain Syndrome associated with restriction of his head and neck, and left shoulder. At that stage, he did not think the plaintiff had a current work capacity and thought that a pain management program may be helpful.
99 In Mr Williams’ opinion, the work-related and or biopsychosocial factors contributing to the plaintiff’s incapacity were the associations described by the plaintiff.
100 Mr Williams further reported on 19 February 2009. Reviewing his earlier reports, Mr Williams noted that in the history the plaintiff presented initially, there was no evidence that the plaintiff had suffered any significant physical injury. He had simply experienced symptoms during the course of his work.
101 Having seen the DVD and commenting on it in his earlier report, Mr Williams added that the freer movement shown on the DVD lead him to the opinion that the plaintiff has a physical capacity far greater that he professed at the time of examination. In Mr Williams view, there did not appear to be any physical basis for the pain the plaintiff described. Mr Williams thought, therefore, the plaintiff had a current work capacity and could return to work as a driver without any specific restrictions
102 The plaintiff was examined by Mr Brearley on 27 March 2009. At that stage, the plaintiff had recently completed a pain management program at Wodonga Hospital.
103 On examination, the plaintiff complained to Mr Brearley of constant pain of variable severity in the left side of his neck and across the top of his shoulder girdle. He was aware of a dull, aching sensation within the left shoulder joint proper. He said that once or twice a day he had a sensation of pain and numbness and tingling in the ulnar side of the left hand and little and ring fingers, and he had constant headaches over the back of his head.
104 On examination of the neck, there was some tenderness over the back of the neck generally. The plaintiff held his neck stiff with the loss of normal cervical lordosis. Movement of the cervical spine was greatly restricted in all directions by pain and the plaintiff was only able to move his neck through a few degrees in all directions.
105 The plaintiff’s left shoulder was held constantly in a grossly elevated position, being 10 centimetres above the right shoulder in vertical height. There was some wasting of the musculature behind the shoulder over the scapula and there was no deformity.
106 Movements of the left shoulder girdle showed quite gross restriction with flexion limited to 90 degrees and extension to 20 degrees. Abduction was limited to 70 degrees and adduction to 10 degrees. Internal and external rotation was to 30 degrees.
107 On neurological examination, the plaintiff said there was some slight loss in the sensory perception over the palm of the left hand and the tips of the fingers. Sensation was otherwise normal.
108 Mr Brearley noted the MRI scan of the cervical spine of 14 August 2007 and 18 April 2008 and the MRI scan of the shoulder of the same date which were all normal.
109 Mr Brearley thought the plaintiff’s injury arose out of the course of his employment with the defendant and that his employment was a significant contributing factor to his current injuries, incapacity and impairment.
110 Mr Brearley noted no precise diagnosis had been made and the situation was quite unusual. There was no anatomical abnormality noted on MRI of the neck nor of the left shoulder, but the plaintiff’s symptoms were severe and he had a very gross deformity consisting of high elevation of the whole of the left shoulder which was quite constant. There also appeared to be considerable muscle spasm holding the shoulder in this extreme position.
111 Mr Brearley noted but did not comment on Dr Todhunter’s diagnosis of dystonia.
112 Mr Brearley commented that the only thing certain was that the plaintiff had constant spasm of the musculature responsible for elevation. The levator scapular muscle in association with the other muscles inserted into the scapula does help to steady the scapula and control its position and movements. It helped to maintain the level and poise of the shoulder and can act with the trapezius to elevate the scapula when the cervical part of the vertebral column was fixed, which was the case here.
113 Mr Brearley thought the plaintiff’s injury would improve somewhat with the passage of time but it was difficult to be certain, because the diagnosis had not been clearly established. He also noted the plaintiff had developed significant clinical depression which was probably delaying his recovery to some extent. Mr Brearley thought, at that stage, there was no possibility of the plaintiff being able to work.
114 Mr Brearley thought the plaintiff was certainly incapacitated and restricted with regard to employment and that he was clearly unable to return to his pre-injury duties. He thought the plaintiff not fit for any light duties because of pain and limitation in the use of his left arm and also because of his heavy medication intake which greatly disturbed his concentration, motivation and reliability. He did not think the plaintiff’s condition had stabilised and considered that it may be a further six to twelve months before that occurred.
115 Mr Brearley agreed with Dr Todhunter’s suggestion of Botox injections. Mr Brearley also thought the plaintiff needed psychiatric assessment as he was clearly suffering from a Chronic Adjustment Disorder with Anxiety and Depressed Mood, secondary to his work-related injuries.
116 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, on 30 June 2010.
117 On examination, the plaintiff was clearly reluctant to move his neck and avoided using his left arm. Cervical flexion was 10 degrees, with 20 degrees of extension, 10 degrees of lateral flexion and 20 degrees of rotation. The plaintiff described significant pain to palpation on the left side of the mid cervical region extending along the line of the trapezius above the scapula and along the medial border of the left scapula.
118 Flexion of the left shoulder was to 90 degrees, with 70 degrees of abduction and 30 degrees of both internal and external rotation, with the plaintiff reporting both causing significant shoulder pain. Left elbow flexion was from 10 to 130 degrees, with the plaintiff reporting shoulder pain on attempted full extension and also flexion.
119 There was some suggestion of mild sensory change along the ulnar border of the left hand. There was, in fact, a positive Tinel’s sign directly over the ulnar nerve behind the left medial epicondyle.
120 The plaintiff also described some midline mid thoracic tenderness.
121 No investigations were available for review, but Mr O’Brien noted the normal cervical spine MRI of 14 August 2007.
122 Mr O’Brien concluded the plaintiff now presented with extensive distribution of pain which was accompanied by extreme restriction of movement in the neck accompanied by extensive local tenderness. In addition, there was a restriction of all left shoulder movements.
123 Mr O’Brien commented, given the original normal MRI, it had been difficult to find any specific cervical pathology to explain the distribution of the plaintiff’s pain. Mr O’Brien noted extensive loss of movement of the shoulder might suggest the presence of capsulitis which had possibly complicated prolonged conscious restriction of movement of the shoulder joint.
124 However, Mr O’Brien could not find any specific pathology to explain the overall distribution of the plaintiff’s pain. He thought soft tissue strain did not appear to be consistent with the extensive loss of function of the neck and shoulder and therefore the most appropriate description was that of a Chronic Pain Syndrome which, in Mr O’Brien’s view, was certainly influenced by psychosocial factors.
125 Mr O’Brien thought the plaintiff’s overall prognosis was poor and that ongoing treatment would certainly be directed towards pain management. Mr O’Brien considered that the described relief from Botox might justify repeating the injection.
126 Mr O’Brien concluded the plaintiff clearly presented with demonstrated disability involving virtually a rigid neck. There was really no functional movement of the neck and left shoulder and thus the plaintiff was indeed physically and markedly limited. Mr O’Brien considered the plaintiff certainly totally incapable of returning to his pre-accident job or any other form of manual employment.
127 On his current presentation, Mr O’Brien thought the plaintiff was physically, totally and permanently incapacitated and it seemed reasonable that the plaintiff was in receipt of a Disability Pension. In Mr O’Brien’s view, clearly, the plaintiff remained permanently significantly limited in relation to his general, social, domestic and recreational activities.
128 Mr Isbister, orthopaedic surgeon, re-examined the plaintiff on behalf of QBE Insurance on 10 March 2010, having initially examined him in October 2008.
129 Mr Isbister noted there had been little change in the plaintiff’s condition since 2008. On re-examination, the plaintiff had restriction of left shoulder movement, pain and clicking sensation. He had reduced neck movements with pain and this was occurring on the left side of his neck, radiating to the trapezius muscle and shoulder blade. The plaintiff complained of headache, indicating the rear section of his head and from the left side of his neck.
130 On examination, the plaintiff stood with his left shoulder hunched up with increased muscle tone and tenderness in the muscles of the shoulder girdle. There was tenderness in the paravertebral musculature on the left side of the thoracic spine. Lateral flexion was to 15 degrees bilaterally and rotation was to 10 degrees.
131 In Mr Isbister’s opinion, the plaintiff had spasm of the neck and left shoulder girdle musculature. He had a restricted range of movement, both in the neck and left shoulder, and there had been little change in his condition since last examined nearly eighteen months ago.
132 Mr Isbister thought that the plaintiff had a muscular ligamentous strain resulting in spasm of the muscles and probable facet joint capsulitis. He considered the clinical findings were consistent with the frozen shoulder on the left side. In his view, there was no apparent neurological dysfunction.
133 Mr Isbister also thought the plaintiff was currently suffering from anxiety and depressive reaction and may well require continuing pain management treatment.
134 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, on 26 July 2010. Mr Dooley appears to have been provided with surveillance reports but not the actual films.
135 On examination, Mr Dooley noted all neck movements were limited with no evidence of obvious muscle spasm. There was no evidence of neurological abnormality in either arm.
136 Axial compression through the occiput allegedly exacerbated both the plaintiff’s neck and left arm pain, particularly in the region of his left trapezius muscle. There was no referred pain to the left shoulder joint itself.
137 All movements of the left shoulder, both active and passive, were limited by pain. Tests for impingement were negative and the left shoulder was stable in all directions and the acromioclavicular joint was normal.
138 In the left shoulder, the plaintiff had flexion to 130 degrees, extension to 40 degrees, abduction to 130 degrees, adduction to 25 degrees, internal rotation to 70 degrees and external rotation to 60 degrees.
139 Mr Dooley noted MRI scans of the cervical spine of August 2007 and April 2008 showed normal appearances and the MRI scan of the left shoulder was reported as showing mild tendonitis only affecting the supraspinatus tendon.
140 Mr Dooley noted that none of the surveillance records showed the plaintiff stretching his left arm way above shoulder level. The reports of the surveillance did not alter his opinion.
141 Mr Dooley thought that the plaintiff first suffered injury to his cervicothoracic spinal area with radiation of pain into his left trapezius muscle in April 2007 after doing repetitive heavy lifting of plaster.
142 Mr Dooley believed the pain the plaintiff complained of in the left trapezius muscle represented referred pain from the cervicothoracic spine and there had been no specific injury to the left shoulder itself.
143 On balance, Mr Dooley thought the plaintiff’s symptoms came on in the course of doing heavy work.
144 Mr Dooley initially diagnosed a soft tissue injury to the cervicothoracic spine, with referral of pain to the left shoulder girdle area, in particular, the left trapezius muscle.
145 Mr Dooley considered the plaintiff’s physical injury had been complicated by the development of an adverse psychological reaction, the development of anxiety and depression, and at the time of the examination, evidence of a Chronic Pain Syndrome and abnormal illness behaviour.
146 Mr Dooley thought the plaintiff’s prognosis depended mainly upon the plaintiff’s natural recovery from the adverse psychological reaction. Mr Dooley considered if that had not developed, the plaintiff would probably have recovered satisfactorily from the physical injury to his cervicothoracic spine or at least sufficiently recovered for him to take up a lighter occupation not involving repetitive lifting.
147 Mr Dooley thought further recovery would be principally natural and uninfluenced by any specific physical or surgical treatment and unlikely to occur until the plaintiff returned to suitable employment.
148 Mr Dooley considered the plaintiff was permanently unfit to return to any work involving heavy repetitive use of his arms, in particular, his left arm, but he thought the plaintiff fit for multiple forms of lighter work not involving such restrictions. Mr Dooley thought the plaintiff was fit for a wide range of lighter work, including administrative work. He considered it was more likely than not the plaintiff would physically recover from the physical effects of the injury.
149 Mr Dooley thought the plaintiff had now reached the stage where he was unlikely to require further physical treatment. Mr Dooley was concerned about high doses of narcotic medication and noted that hopefully the plaintiff could be weaned off those.
150 The plaintiff was examined by Professor Dennerstein, psychiatrist, on 8 September 2010.
151 On examination, there was no evidence of any formal thought disorder or other perceptual abnormalities. The plaintiff described fleeting thoughts of “not wanting to be bothered by this any more – it’s too much”- without having any active suicidal plan.
152 Dr Dennerstein noted that the plaintiff had been noted by his general practitioner to be anxious and Zoloft had been prescribed in 2006.
153 In Dr Dennerstein’s view, as a result of the pain and frustration with his limitations and being unable to continue at work, the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Dennerstein noted that the plaintiff’s symptoms had included sad tearful moods at times, irritability, early and middle insomnia and anxiety which had worsened this year and included panic attacks.
154 Dr Dennerstein considered the plaintiff’s depression and anxiety also affected his ability to work. The plaintiff thought no-one would employ him as he had now been out of work for three years. She noted that he had a poor educational background, having only completed Year 10. He did not have computer training or office skills and he had difficulty with learning because of poor concentration.
155 In her view, the plaintiff’s chances of being re-trained would be poor. She thought the prognosis for improvement in the plaintiff’s symptoms of depression and anxiety was now poor as his symptoms related to pain which was ongoing. She thought the plaintiff’s psychological symptoms had not improved significantly despite treatment with four different anti-depressants, which again indicated to her a poor prognosis. She thought the plaintiff should be referred for counselling to learn psychological techniques to help him with anxiety and depression.
Compensation Documents
156 By letter dated 4 March 2010, QBE Insurance advised the plaintiff that it had accepted liability under his s.98C claim in relation to injuries suffered to the left shoulder, left arm, upper back and neck sustained in the course of his employment on 20 May 2007.
Neurological Disorders
157 Counsel for the plaintiff tendered a National Institute of Neurological Disorders and Fact Sheet on Dystonia.
158 Dystonia is a movement disorder in which sustained muscle contractions cause twitching and repetitive movements or abnormal postures. The movements which are involuntary and sometimes painful may affect a single muscle group, a group of muscles, such as those in the arms, legs or neck, or the entire body.
159 Focal dystonia is localised to a specific part of the body.
160 Cervical dystonia, also called “spasmodic torticollis” is the most common form of focal dystonia. In torticollis, the muscles in the neck that control the position of the head are affected, causing the head to twist and turn to one side. Torticollis can occur at any age although most individuals first experience symptoms in middle age.
161 Investigators believe that dystonia results from an abnormality in the area of the brain called the basal ganglia, where some messages that initiate muscle contractions are processed. Scientists suspect a defect in the body’s ability to process a group of chemicals called neurotransmitters that help cells in the brain communicate with each other.
162 It was noted that in secondary dystonia due to injury or stroke, people often have abnormal movement of just one side of the body which may begin at the time of the brain injury or some time afterwards. Symptoms generally plateau and do not usually spread to the other parts of the body.
163 Physicians use a variety of therapies aimed at reducing or eliminating muscle spasms and pain.
Investigations
164 Dr Mobilia organised an MRI scan of the plaintiff’s cervical spine on 14 August 2007.
165 It indicated the loss of normal cervical lordosis but otherwise alignment was satisfactory. Canal dimensions were normal with no constriction of the cervical thecal sac. The cranio cervical junction and cervical cord were normal. The cervical discs were normal at all levels and there was no focal disc protrusion demonstrated.
The Defendant’s Medical Evidence
166 Mr Hillier wrote to Dr Mobilia on 23 October 2007 following the initial referral of the plaintiff. At that stage, Mr Hillier agreed with Dr Mobilia that rotational stretch under anaesthetic would be the most attractive way of unlocking the plaintiff’s muscle spasm.
167 Mr Hillier wrote to Dr Mobilia on 19 May 2008. He advised the MRI scan of the plaintiff’s cervical spine and left shoulder showed both structures were very sound.
168 Mr Hillier noted the plaintiff continued to have slight loss of lordosis in the neck consistent with some apophyseal joint adhesion but he did have excellent disc signal throughout, a very clear spinal canal and no indication of long term problems.
169 In the left shoulder, similarly, all structures were very sound although there was some minor adhesive capsulitis identified.
170 Mr Hillier thought that suggested that further releasing of adhesions in both the neck and left shoulder, coupled with some intensive in-hospital physiotherapy, may be able to unlock this more effectively and allow the plaintiff to look at a more comfortable resolution of work duties.
171 In a CGU Insurance questionnaire completed by Mr Hillier on 6 August 2008, Mr Hillier noted that the plaintiff was apprehensive and displayed some non- organic features which were being worked through with physiotherapy, supervised exercises and massage. Mr Hiller considered apprehension and non-organic pain response was impeding the plaintiff’s recovery and return to work. He thought the plaintiff would need rehabilitative support and that there was no indication of a residual organic disability.
172 Two reports were provided by the Wodonga Regional Health Service Pain Management Clinic where under the supervision of Dr Langenegger, the plaintiff participated in a pain management program between 15 February and 6 March 2009 for chronic neck and left shoulder upper limb pain.
173 On initial assessment for the program on 7 November 2008, the plaintiff demonstrated poor posture, with his head protracted forwards in relation to the shoulders. There was guarding of the left upper limb by side of trunk and reduced spinal mobility.
174 On discharge from the program, it was noted that the plaintiff made some positive gains in the program, including improved fitness, increased walking distance, some understanding of the concept of pacing and understanding of activity planning.
175 The gains from a psychiatric point of view included improved sleep pattern, staring to improve frustration tolerance and improved understanding in relation to the concepts of chronic pain.
176 Dr Mobilia’s notes set out that on 24 July 2007, the plaintiff complained of –
“… two months keting plaster, gradually having worse pain mid thoracic pain delivering plasterboard, left buttock. Worse rotational movement. Reported to work, said avoid WorkCover. Sent to Health Focus physiotherapy had two treatments, not improving.”
177 Panadeine Forte and Feldene Gel were prescribed.
178 Dr Michael Bowles, occupational physician, examined the plaintiff for medico- legal purposes on 24 September 2009.
179 The plaintiff told him of constant pain in the base of his neck, predominantly on the left, but occasionally on the right. He said it was a burning, stabbing sensation and it never went away and it was at worst eight out of ten. The plaintiff noted he had a headache constantly affecting the back of his head.
180 On examination, the plaintiff had a prominent left trapezial muscle and the right was quite outstanding but not to the same degree. To request, no movement was undertaken at the neck. Similarly, no movement was undertaken with the left shoulder and passively there was very limited left shoulder movement. There was mild callusing on the palms of both hands and a reported light touch sensory loss affecting the left ulnar nerve distribution. The ulnar nerve at the elbow was reported to be tender with a positive Tinel’s sign.
181 Dr Bowles commented he had significant reservations about the plaintiff’s veracity. He noted the plaintiff’s presentation was at significant odds to that on the surveillance report where the plaintiff’s neck was noted to move side to side, backwards when drinking and his arms were used in an overhead fashion. Dr Bowles was also concerned about the narcotic analgesic used and issues of dependency.
182 Dr Bowles noted that there appeared to be a consensus that an injury was not sustained and he could not find any evidence of an injury. In his view, non work-related factors appeared to be relevant. He thought there was likely to be exaggeration, if not fabrication, given the discrepancies between the plaintiff’s presentation on examination and the video. Dr Bowles considered the surveillance evidence suggested a current work capacity and a fitness for pre-injury employment.
183 Dr Bowles thought the plaintiff’s prognosis was poor. Whilst there was an ongoing legal battle and social ostracisation in the plaintiff’s town, it was likely the represented complaints were going to be unchanged.
184 Dr Norman Rose, psychiatrist, examined the plaintiff for medico-legal purposes on 9 September 2009.
185 On mental status examination, the plaintiff sat stiffly with a relatively immobile facial expression and a restricted range of affect. After he left the room, Dr Rose noted the plaintiff walked out in a spritely manner and was smiling. During the interview, the plaintiff appeared to have a restricted range of affect, but Dr Rose’s later impression was this had been manufactured for the sake of the consultation.
186 On examination, there were no abnormalities of intelligence or in the structure of or flow of speech and thought, and there were no delusions, hallucinations or flashbacks, nor abnormalities of social judgment.
187 Given the lack of appropriate physical findings by two surgeons, and also the inconsistencies observed by Dr Rose, his sense was the plaintiff was engaging in abnormal illness behaviour. The fact the plaintiff could wash the car and was helping to look after his ex-girlfriend’s mother meant he was capable of doing far more than he admitted. Dr Rose queried taking such intensive medication as opiates and why the plaintiff was being offered Botox.
188 In Dr Rose’s view, all of that appeared to have arisen out of a sense of despair, because no proper diagnosis could be made. Dr Rose queried whether Mirtazapine was really helping the plaintiff, although Dr Rose acknowledged some patients who developed abnormal illness behaviour and invalidity conviction do become depressed.
189 Dr Rose was certainly not convinced the plaintiff had a diagnosable psychiatric illness. He thought social issues in the plaintiff’s past and the broken relationship with the mother of his two children were contributing. He also thought the long history of adolescent and early adult cannabis use had contributed to the plaintiff’s current medical condition.
190 In Dr Rose’s view, from a psychiatric perspective, the plaintiff had a normal current work capacity and he was fit for pre-injury employment.
191 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 21 May 2010 for medico-legal purposes.
192 The plaintiff told him there was no specific incident or injury but that he developed gradual onset of soreness involving the left side of his neck, left shoulder and also lower thoracic region.
193 On examination, the plaintiff’s main pain was in the neck, extending to the left shoulder girdle, and his back was painful intermittently. He stood with his left shoulder elevated and he appeared to have significant spasm of the trapezius muscle. He had gross restriction of cervical movement and significant restriction of the movement of his left shoulder which was not sufficient to permit assessment of impingement. There was no objective neurological abnormality.
194 Mr Shannon noted that the plaintiff moved his neck more freely when dressing at the end of the consultation but by no means was his movement normal. When observed going down the corridor after the examination, the plaintiff continued to have an elevated left shoulder.
195 Mr Shannon thought it appeared, as a result of the general nature of his work, the plaintiff had sustained a soft tissue injury to his neck and left shoulder girdle. He noted the plaintiff had ongoing symptoms for three years and perusal of early reports suggested to Mr Shannon the only thing that had happened was his neck and shoulder had become more restricted in movement. Against this, however, were the normal radiological findings.
196 Mr Shannon commented that the gross restrictions identified on examination did not correlate with any specific orthopaedic diagnosis that he could envisage and he suspected there was a very strong psychological component to the plaintiff’s presentation.
197 Mr Shannon considered the plaintiff’s incapacity appeared to relate to some form of Chronic Pain Syndrome with spasm requiring substantial medication, including narcotics. As he currently presented, Mr Shannon thought the plaintiff would be regarded as totally incapacitated and that use of narcotics would further limit his capacity for lighter work.
198 Mr Shannon concluded the plaintiff presented with widespread neck pain involving his neck and left shoulder girdle associated apparently with significant spasm, particularly at the trapezius muscle, but unexplained by the investigations. Mr Shannon was unable to explain the progressive deterioration in function in terms of physical injury and he thought there appeared to be a significant non-organic component to the plaintiff’s presentation.
199 Mr Shannon thought there was a significant function or psychological reaction, but distinguishing that was difficult in a consulting room situation.
200 For the reasons he outlined, Mr Shannon did not think the plaintiff capable of the occupations listed, including general clerk, enquiry clerk, library assistant, safety inspector, filing and registry clerk, security guard and officer. Nor was Mr Shannon able to say the plaintiff was able to undertake duties described in office administration or security personnel.
201 Mr Shannon was forwarded DVD’s of the plaintiff’s activities on 11 and 12 November 2008, 22 April 2009 and 16 and 23 April 2010.
202 Mr Shannon noted the particularly relevant DVD was an hour of footage in November 2008, of which the most significant activities centred around the opening of the rear of the plaintiff’s car, the removal of the contents of the utility and subsequently, the cleaning of the utility.
203 Mr Shannon commented that all of this activity was performed absolutely freely and the plaintiff frequently elevated his left arm well above the 90 degree level and probably around 120-130 degrees. In particular, the plaintiff was noted to use his left arm quite normally for a right-handed person and in cleaning the vehicle he used both hands to squeeze the cloth and wipe the vehicle down. He used his left arm to carry a bucket of water and he reached down with his left arm and turned taps on and off.
204 In Mr Shannon’s view, at no time did the plaintiff show any evidence of restriction of left shoulder movement or, indeed, of his neck. Nor did the plaintiff show the gross elevation of the left shoulder which was apparent at the time of examination.
205 Having watched an hour of video, Mr Shannon did not see anything which suggested there was any disability in either the plaintiff’s neck or left shoulder. He considered the plaintiff’s presentation on surveillance compared to his presentation on examination by him was totally inconsistent. Firstly, in posture on examination, the plaintiff had an elevated left shoulder with major spasm, whereas in the DVD his posture was absolutely normal. Secondly, there was an inconsistency between the plaintiff’s ability to move his neck and left shoulder on examination and in the video.
206 The video altered Mr Shannon’s earlier view that the plaintiff had no work capacity. However, the video concerned his earlier comment that the plaintiff’s true capacity was difficult to assess in a consulting room situation.
207 Having seen the November 2008 video and a few minutes of the 2010 video, Mr Shannon suggested the plaintiff was certainly capable of light to moderate physical work and probably fit for his normal occupation. He thought the appearances would suggest there was gross exaggeration and possibly fabrication of physical signs.
The Defendant’s Lay Evidence
208 Mr Richard Keating, manager of the defendant, swore an affidavit on 20 July 2010.
209 The plaintiff commenced employment with the defendant on 22 January 2004 as a casual delivery person. He worked an average of thirty six hours per week at $16.65 per hour.
210 The plaintiff’s main duties involved loading and unloading plaster sheets, metal products, installation and accessories, driving of medium rigid truck and work utility, making up loads in the warehouse and clearing the warehouse.
211 Whilst the plaintiff alleged his injury occurred on 20 May 2007, a Sunday, the defendant does not operate on Sundays.
212 The plaintiff did not mention anything about his injury until approximately mid- July 2007, at which time he told Mr Keating his lower back was sore.
213 As a result, Mr Keating requested the plaintiff stay in the warehouse to see if his back improved.
214 The plaintiff’s claim that was lodged was for his upper back, shoulder and neck and this was queried by the insurer as it was not the injury the plaintiff had previously complained of.
215 The plaintiff was not required to lift up to sixty kilograms. The plaintiff was involved in lifting weights up to twenty kilograms and if he had lifted any heavier weights, it would have been of his own doing.
216 Mr Keating then commented on the particulars of negligence in the proposed Statement of Claim which are not relevant for the purposes of this application.
217 In a supplementary affidavit sworn by Mr Keating on 16 September 2010, he elaborated upon the plaintiff’s complaint of low-back pain and confirmed it was the defendant’s practice that an employee reporting an injury or pain spend some time not attending job sites.
218 Further comments were made by Mr Keating in relation to liability, which again are not relevant to this application.
Letters of Instruction
219 The letters of instruction to Mr Dooley and Dr Dennerstein were tendered.
220 It is not clear from the letter of instruction to Mr Dooley whether he was actually provided with the video films or just the reports in relation thereto when he was instructed to examine the plaintiff on 26 July 2010.
221 It does not seem that any investigation material was forwarded to Dr Dennerstein in the letter of instruction of 6 September 2010.
Video Surveillance
222 Video surveillance was shown of the plaintiff on 11 and 12 November 2008.
223 On the first date the plaintiff was shown at the local shopping centre at about 11.30 am. He and his female companion then went to the supermarket. The plaintiff was shown in the supermarket car park at 12.16 pm unloading bags of shopping from the trolley into the back of his ute. The plaintiff, on about four occasions, using both hands, took at least one bag in each hand from the trolley and put it into the rear of the ute.
224 At 12.24 pm, the plaintiff was shown at home performing the same activity in a similar manner, unloading the shopping bags from the rear of the ute and walking inside carrying the bags of shopping. He opened the boot of the ute his left hand raising his left arm fully.
225 At no time did the plaintiff show any restriction of neck or left shoulder movement whilst unpacking the shopping bags.
226 The following day, having earlier driven to the shopping centre, the plaintiff was shown washing the ute from 12.39 pm until 1.10 pm.
227 When washing the ute, the plaintiff was shown to wring out the chamois with both hands. He also flung out his left arm to shake the chamois. On about four occasions he was shown using his left hand wiping the car across the back window. On occasion the plaintiff carried a bucket of water which he said was three-quarters full.
228 The plaintiff was shown at 12.06 pm on 12 November talking with a female friend outside the supermarket. During the course of this conversation he was shown gesticulating raising both arm above his head on two occasions.
229 At no time during the video did the plaintiff display any restriction of neck or left shoulder movement.
230 Surveillance film was also taken of the plaintiff on 8 January 2009 washing the ute but it was not shown. In cross-examination, the plaintiff agreed he would have washed the ute in a similar fashion on that date as he had been shown to do on 12 November 2008.
Compensation Documents
231 The plaintiff’s Claim Form signed by him on 26 July 2007 set out the date of injury as the 20 May 2007 and that he first noticed the condition on 20 May 2007 and ceased work on 23 July.
232 The plaintiff was then working thirty four hours per week at $19.25 an hour, making gross earnings of $580 per week. He noted he reported the injury to Dorothy Jackson in the payroll office.
233 The employer’s Claim Form, also dated 26 July 2007, set out the injury was reported to Ms Jackson and that the plaintiff ceased work on 23 July 2007 because of sore muscles in his back from lifting plaster sheets.
234 The Register of Injuries dated 23 July 2007 set out that the plaintiff had a sore neck and back due to his job and that he had had some physiotherapy.
Overview
235 I accept the plaintiff suffered a compensable injury due to the heavy nature of his plastering duties in the months leading up to July 2007.
236 It was conceded by Counsel for the defendant that there had been a decision made that an injury arose in the course of the plaintiff’s employment giving rise to entitlement to statutory benefits.
237 Although the plaintiff described a particular date of injury on his Claim Form as 20 May 2007, I accept he did so on the advice of the pay mistress to backdate the date of injury to when his back became sore.
238 Whilst the plaintiff appears to have reported thoracic pain to the physiotherapist he saw on 20 July 2007 and made complaints of mid thoracic pain to Dr Mobilia on 24 July 2007, from 30 July 2007, the plaintiff reported neck problems to Dr Mobilia.
239 Medical opinion is divided as to whether the plaintiff suffered a separate shoulder injury as a result of his work duties or whether his left shoulder pain is referred pain from his neck.
240 Mr Dooley considered there was no injury to the left shoulder joint itself and he thought the pain in the left trapezius represented referred pain from the neck. Mr O’Brien thought the presence of capsulitis might be suggested in light of the extensive loss of movement of the shoulder. Mr Isbister diagnosed possible facet joint capsulitis.
241 Before undertaking the analysis of the seriousness of the plaintiff’s neck and left shoulder injury, I am required to identify the consequences that are organically based.
242 Pursuant to s.134AB(38)(h) of the Act, psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
243 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin … requires that any psychological or psychiatric overlay be stripped aside. …”
244 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
245 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“
246 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where his Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
247 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at p.19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
248 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
249 There was some medical support in the months after the plaintiff ceased work for a diagnosis of musculoligamentous strain or soft tissue injury.
250 In September 2007, Mr Leitl diagnosed left thoracic muscular strain with secondary myalgia of the muscles around the neck and shoulders.
251 More recently, in March 2010, Mr Isbister diagnosed musculoligamentous strain, resulting in spasm of the muscles and probable facet joint capsulitis.
252 However, also on examination in 2010, Mr O’Brien considered the widespread nature of the plaintiff’s complaints was not consistent with a soft tissue strain.
253 Other examiners, in particular treating orthopaedic surgeon, Mr Hiller, have not been able to find an organic basis for the plaintiff’s ongoing neck and left shoulder complaints.
254 Whilst he has undertaken two manipulations of the plaintiff’s left shoulder under anaesthetic, Mr Hillier thought the plaintiff’s neck and shoulder were structurally sound. In the CGU Insurance questionnaire, Mr Hiller noted the plaintiff was apprehensive and displayed non-organic features and that non work-related factors may continue to affect his management. He had concerns that there were non-organic factors restricting the plaintiff, and he looked forward to the plaintiff being involved in pain management.
255 Mr Dooley thought the plaintiff had no signs of serious physical injury affecting either his neck or shoulder. In his view, physical injury had been complicated by the development of an adverse psychological reaction with development of anxiety and depression and now evidence of a Chronic Pain Syndrome and abnormal illness behaviour.
256 Mr Williams initially diagnosed a muscular strain, but on later examination, considered the plaintiff appeared to have a type of Chronic Pain Syndrome when he presented with a rather unusual pattern of pain and restricted movement.
257 Dr Bowles thought there was no evidence of injury. He had significant reservations about the plaintiff and thought non work-related factors appeared to be relevant in his presentation.
258 Mr Brearley thought the plaintiff’s situation was quite unusual. Whilst he found significant spasm, he thought the plaintiff’s injury would improve. He found it difficult to be certain of the diagnosis which had not been clearly established.
259 Mr O’Brien could not find any specific pathology to explain the overall distribution of pain. Having concluded that soft tissue strain was inconsistent with the extensive loss of function of the neck and shoulder, he diagnosed Chronic Pain Syndrome.
260 Although diagnosing a soft tissue injury and finding spasm on examination, Mr Shannon could not explain the plaintiff’s complaints by investigations carried out and he thought there appeared to be a significant non- organic component to the plaintiff’s presentation – a view confirmed by him after viewing the November 2008 video.
261 The video evidence is of particular relevance in circumstances where there is no clear diagnosis of the plaintiff’s condition.
262 I found the plaintiff’s level of movement and activity on 11 and 12 November 2008 unpacking shopping and washing the ute totally inconsistent with the manner in which he has consistently presented to doctors at various times, unable to move his neck at all, sometimes refusing to do so, and with a permanently elevated left shoulder, as he demonstrated in Court.
263 I do not accept the plaintiff’s explanation that he was having a good day when filmed on these occasions.
264 There was no restriction whatsoever of his neck or left arm shown on video. Although there was only limited above shoulder movement with the plaintiff only lifting the boot lid once over left shoulder height and raising both arms in the air whilst standing talking to a friend outside the supermarket on 12 November, the plaintiff used his left arm without any apparent difficulty, on a number of occasions lifting shopping bags from the tray of his ute and also wiping his ute with his left hand on several occasions.
265 The plaintiff’s level of movement demonstrated on medical examinations around the time of the video are of particular relevance.
266 A matter of days before the video, on 7 November 2008, when Wodonga Regional Health carried out a screening assessment of the plaintiff for participation in an inpatient pain management program, he demonstrated poor posture, guarding of the left upper limb by the side of the trunk and reduced spinal mobility.
267 A month after the video, on 16 December 2008, when the plaintiff saw Dr Mobilia, he noted that the plaintiff “looks very distressed on review, grimacing and bracing; neck on left aggravated by rotation of neck and lumbar pain”. On review two days later, the plaintiff was again very distressed.
268 I find it very hard to reconcile the restriction of movement demonstrated to medical examiners, especially on these two occasions quite close to the time the film was taken with what was shown on the video, particularly in relation to the plaintiff’s neck movement.
269 In addition to an injury to the neck and left shoulder, Counsel for the plaintiff also relied upon Dr Todhunter’s diagnosis of dystonia in respect of the left trapezius and levator scapula muscle and his view that the plaintiff clinically had a focal dystonia affecting the muscles innervated by the accessory nerve.
270 Dr Todhunter gave no real explanation of the basis of this diagnosis or the prognosis in relation thereto in his last report in March 2009. His operation report of 5 August 2010 relating to the last Botox injection simply repeated this diagnosis.
271 The only material available as to the condition of dystonia diagnosed by Dr Todhunter is the National Institute of Neurological Disorders and Fact Sheet on Dystonia.
272 That document was of some assistance to me insofar as it described the condition as a movement disorder. It also referred to the most common form of focal dystonia – cervical dystonia, also called “spasmodic torticollis” where the muscles in the neck that control the position of the head are affected, causing the head to twist and turn to one side.
273 Beyond providing a definition of this condition, the document was of little assistance to me in the absence of any expert medical commentary in relation thereto or any discussion as to whether the plaintiff suffers from this condition.
274 Counsel for the defendant submitted that the document disclosed that dystonia usually began in childhood and becomes progressively worse. It was a neuropathic condition or at least one unrelated to any specific trauma and was, by and large, inherited.
275 Counsel for the plaintiff submitted that consistent with the plaintiff’s case was the comment in the Fact Sheet that in secondary dystonia due to injury or stroke people often have abnormal movements of just one side of the body which may begin at the time of the brain injury, or some time afterwards. Symptoms generally plateau and do not usually spread to other parts of the body.
276 On this limited medical evidence, and taking into account the level of neck movement shown by the plaintiff on video, I am unable to accept that the plaintiff suffers from trauma-related dystonia. Further, no mention of this condition was made by Mr Hiller, the plaintiff’s treating orthopaedic surgeon.
277 Taking into account all the evidence, I am not satisfied that the plaintiff presently suffers from an organically based impairment of his neck or left shoulder.
278 I accept however, that a Chronic Pain Syndrome, as diagnosed by Mr O’Brien, Mr Williams, Mr Dooley and Mr Shannon, can result in impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
279 However, counsel for the plaintiff submitted the plaintiff’s claim under subsection (c) was brought on the basis of a frank psychiatric injury, namely, depression and anxiety, and that it was not a case of Chronic Pain Syndrome.
280 To succeed in an application for psychiatric impairment pursuant to subsection (c), the plaintiff must establish that he suffers from a permanent severe psychiatric condition.
281 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
282 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
283 Prior to the said period, the plaintiff did not have any psychiatric problems of any significance. Whilst the plaintiff had treatment for anxiety from Dr Mobilia and a trial of Zoloft in April 2006, he was able to work full time and he was not having psychiatric treatment at the time he suffered injury.
284 On 24 July 2007, the plaintiff attended Dr Mobilia, who noted that the plaintiff was very distressed. The plaintiff presented in a similar fashion on a number of later attendances in October 2007, January, April, May, June, July and December 2008, April, May, July and September 2009 and in January 2010. Avanza and other anti-depressants were commenced after September 2008.
285 Despite the plaintiff’s presentation on these attendances, Dr Mobilia has not seen the plaintiff’s condition to be severe enough to refer him for psychological or psychiatric treatment, prescribing antidepressant medication himself.
286 Whilst the plaintiff deposed to having suffered panic attacks, there is no reference made by Dr Mobilia of any complaint in this regard. In his most recent report dated 9 July 2009, Dr Mobilia diagnosed a secondary depression which disturbed the plaintiff’s sleep but did not elaborate further on the plaintiff’s mental state.
287 Further, Dr Mobilia has not expressed a view as to any incapacity for employment based on the plaintiff’s psychiatric condition.
288 The only counselling undergone by the plaintiff was in the context of the pain management program in which he was enrolled in February/ March 2009. On discharge from the program, it was noted the plaintiff had started to improve coping, started to improve frustration tolerances and improved his understanding of concepts regarding chronic pain. There was no suggestion by the program manager, Dr Langenegger, that the plaintiff required additional psychiatric treatment or support.
289 Professor Dennerstein, who had been provided with Dr Mobilia’s notes, thought that the plaintiff was incapacitated for employment on physical grounds but did not elaborate further as to his capacity psychiatrically, save for commenting that the plaintiff’s anxiety and depression affected his ability to work.
290 Dr Dennerstein based her view that the plaintiff’s prognosis was poor on an acceptance that his symptoms related to pain which was ongoing. Whilst she suggested the plaintiff may benefit from some counselling, she did not consider that the plaintiff required psychiatric treatment.
291 Dr Rose was unable to diagnose any psychiatric condition. He thought that the plaintiff was engaging in abnormal illness behaviour on examination and on leaving the rooms.
292 Dr Rose wondered why the plaintiff should be taking Oxycontin and having Botox injections. He thought this treatment appeared to have arisen out of a sense of despair as no proper diagnosis could be made.
293 From a psychiatric perspective, Dr Rose considered that the plaintiff had a normal work capacity and that he was fit for his pre-injury employment. He thought the plaintiff’s psychiatric prognosis was good but he suspected that the plaintiff would claim continuing invalidity.
294 I am not satisfied, on the limited psychiatric evidence available, that the plaintiff is incapacitated for work on psychiatric grounds
295 Further, I am not satisfied, in the absence of expert treatment or referral, that the plaintiff’s present psychiatric condition is severe and permanent pursuant to sub-section (c) of the Act.
296 The video surveillance evidence, whilst not particularly helpful in a claim pursuant to subsection (c), shows the plaintiff interacting with other people and helping out washing a friend’s car.
297 However, bearing in mind my finding that the plaintiff’s level of movement shown on video is totally at odds with his complaints of significant physical restriction, I also have difficulty accepting the plaintiff’s evidence as to any claimed psychiatric symptoms.
298 In this context, I note the comments made in the Second Reading Speech on the Accident Compensation (Common Law and Benefits) Bill that a higher threshold requirement for a mental or behavioural disorder is maintained because of the degree of subjectivity involved in such a condition.
299 Taking into account all the evidence, I am not satisfied that the plaintiff has a severe permanent impairment pursuant to subsection (c) of the Act.
300 Accordingly, the plaintiff’s application is dismissed.
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