Mlinar v Toyota Motor Corporation Australia Limited
[2014] VCC 292
•20 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00922
| BORIS MLINAR | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 March 2014 | |
DATE OF JUDGMENT: | 20 March 2014 | |
CASE MAY BE CITED AS: | Mlinar v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 292 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury of lower back – psychological or psychiatric injury of depression and anxiety – disentanglement of consequences between physical and psychiatric injury – pain and suffering damages – loss of economic earning capacity damages – whether statutory definition satisfied.
Legislation Cited: Accident Compensation Act 1985, s135AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171; Jones v Dunkel (1959) 101 CLR 298; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff to bring common-law proceedings for pain and suffering damages only arising out of his low-back injury. Leave refused in respect of application to bring common-law damages for psychiatric injury in respect of pain and suffering and/or loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Lawyers |
| For the Defendant | Mr N Dunstan | Minter Ellison |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 28 February 2013 by the plaintiff applying for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant between 2000 and 3 July 2006. In particular, the plaintiff alleges that he was injured on 27 June 2005.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff claims that he has suffered a low-back injury during the course of his employment with the defendant and seeks to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of that injury. The plaintiff also alleges that he has suffered a psychiatric injury as a result of his employment with the defendant and seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined
·The plaintiff’s general practitioner, Dr Yasmin Kazi, gave evidence and was cross-examined
·The plaintiff’s psychiatrist, Dr Prabhakar Rajan Thomas, gave evidence and was cross-examined
·Exhibit A – Plaintiff’s Court Book (“PCB”) pages 10 to 25, 33 to 88j and 92a to 106
·Exhibit 1 – Defendant’s Court Book (“DCB”) pages 1 to 22a and 42 to 98
·Exhibit 2 – Job Capacity Assessment Report dated 27 June 2007
·Exhibit 3 – Report of Dr Yasmin Kazi dated 9 February 2012.
4 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s lower back.
5 This application is also brought under the definition of “serious injury” contained in s134AB(37)(c) of the Act which requires the plaintiff to prove that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The severe mental or severe behavioural disturbance or disorder is said to be Depression and Anxiety.
6 Mr Dunstan, on behalf of the defendant, identified the issues in this application as follows:
(i) The physical injury to the plaintiff’s lower back is not “serious” as defined in the Act. In short, this was a “range case”;
(ii) The plaintiff was required to disentangle the consequences relating to pain and suffering as a result of the injury to his lower back and to the psychological or psychiatric injury alleged to have occurred;
(iii) The plaintiff had a normal working capacity, both from a physical perspective and from a psychiatric perspective;
(iv) The psychiatric injury is not caused by the work with the defendant;
(v) The psychiatric injury is not permanent and is not severe;
(vi) The credit of the plaintiff was an issue in this case.
7 The plaintiff was cross-examined extensively during the course of this application. The plaintiff’s general practitioner, Dr Kazi, and his treating psychiatrist, Dr Thomas, were also cross-examined.
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
9 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
10 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
11 The plaintiff was born in Bosnia in 1974. He is now forty years old. The plaintiff’s father died when he was very young and he and his mother migrated from Bosnia in 1994.[3]
[3]PCB 11
12 The plaintiff is a married man and lives with his wife and three children, aged fourteen to five years old.[4] His mother also lives with him in the family home.
[4]DCB 6
13 In 2009, the plaintiff’s wife was diagnosed with cancer and he has been her Carer since that time. He is currently in receipt of a Carer’s Pension from Centrelink.[5]
[5]PCB 15, paragraph 20
14 The plaintiff was educated in a technical school in Bosnia.[6] Upon arrival in Australia, the plaintiff took up employment with the defendant in 1996.[7] He remained in that employment until he took a voluntary redundancy on 3 July 2006.
[6]PCB 11
[7]PCB 11
15 In 2009, the plaintiff commenced a business as a photographer. His uncle was in the real estate business and the plaintiff’s job was to take photographs of prospective real estate for sale.[8] He continued with that photography business until early 2010, when he became more involved in the role as a Carer for his wife.
[8]PCB 15, paragraph 19
16 On 3 February 2011, the plaintiff attended on his general practitioner, Dr Kazi, stating that he wanted to sue the defendant as he cannot do any physical work since he had his back injury in 2006. He told Dr Kazi that he had tried photography but could not continue as his back was hurting too much whilst he was doing the editing. The complaint at that time was about the lower back. Dr Kazi referred the plaintiff to Dr Karlov, consultant physician. This consultation with Dr Kazi was the first indication that these proceedings were going to take place.
Injury with the Defendant
17 The plaintiff had commenced employment with the defendant in October 1996. He was trained in MIG welding. After a couple of years performing those duties, he was then put into the fuel tank area of the production line. In 2000, the plaintiff first experienced problems with his back due to awkward handling and manoeuvring positions with the fuel tanks.[9]
[9]PCB 11
18 On 31 May 2000, the plaintiff underwent a CT scan of his lumbar spine.[10]
[10]PCB 65
19 In 2002, the plaintiff had a further bout of back pain.
20 On 26 November 2002, the plaintiff had an MRI scan of his lumbar spine. He was placed on restricted duties and had some time off.[11]
[11]PCB 12
21 After some months of alternative duties, the plaintiff was returned to the fuel tank area in 2004. Again, he suffered some pain and symptoms in his lower back, and had trouble walking at the end of a shift.[12]
[12]PCB 13
22 The plaintiff’s back condition finally flared up on 27 June 2005. The plaintiff described the incident as follows:
“I suffered a very bad flare up of pain on or about 27th June 2005. I was doing my spot welding duties and handling fuel tanks on that occasion. Back pain started to build up very quickly. I was again forced to work quickly and adopt an awkward posture while working. This pain was considerably worse than that which I had felt before.”[13]
[13]PCB 13, paragraph 13
23 On 18 July 2005, the plaintiff had a CT scan of his lumbar spine. The CT scan was reported as follows:
“L3-4 and L4-L5 discs are intact and the spinal canal and nerve root canals at these levels are clear. At the lumbosacral level there is central posterior disc prolapse slightly more prominently to the left of the mid-line and causing some impingement upon the anterior aspect of the spinal theca and also upon the origin of the left S1 nerve root.”[14]
[14]PCB 87
24 The plaintiff was certified by his general practitioner, Dr Kazi, on 19 April 2006 as fit for normal duties. In the comment part of the Certificate of Capacity, Dr Kazi noted “need to continue with physiotherapy”.[15]
[15]DCB 67
25 The plaintiff continued to work for the defendant until 3 July 2006, when he took a voluntary redundancy package. The plaintiff’s only employment since that time is his photography business, which was conducted in 2009 and 2010.
26 The defendant accepts that the plaintiff has made claims for and been treated for the four incidents of back complaint as a result of his employment. The defendant relies on the Certificate of Capacity dated 19 April 2006 and no subsequent reported injury to the plaintiff’s back.
Psychiatric/psychological injury to the Plaintiff
27 The plaintiff sought a serious injury certificate for a permanent severe mental or permanent severe behavioural disturbance or disorder. The law in relation to serious injury certification for mental or permanent severe behavioural disturbances or disorders is well settled. In the judgment of the Court of Appeal in Mobilio v Balliotis,[16] the meaning of severe was resolved. Brooking JA held, at page 846, that the change in the language from “serious” to “severe” betokens a change in meaning. Brooking JA stated that “severe” was used in the definition as a stronger word than “serious”. In short, the test for the plaintiff to satisfy is a very substantial test before a serious injury certification can be made under this heading.
[16][1998] 3 VR 833
28 The plaintiff’s evidence is that the first experience he had of any psychological or psychiatric difficulties arising from his employment was a reaction to pain from his back in 2004. His evidence was that he went to see Dr Kazi and also saw a psychologist. The medical notes tendered in this case refer to two consultations on 24 March 2004 with Dr Guy Delcourt, where the plaintiff was prescribed Xanax tablets. The next consultation was on 31 May 2004 with Dr Kazi, where the plaintiff was prescribed Xanax tablets.[17]
[17]DCB 47
29 The plaintiff gave evidence that he was also seen by a psychologist for a total of sixteen sessions at this time. The plaintiff was unable to recall the name of the psychologist. There is no note in Dr Kazi’s records as to the identity of the psychologist. Dr Kazi did not refer the plaintiff to the psychologist, according to her notes.
30 The plaintiff was then not treated in respect of any psychological or psychiatric problems by any medical practitioners until February of 2011.
31 The plaintiff had consulted with Dr Kazi on 3 February and 5 February 2011 in respect of his physical back injury. On 16 February 2011, Dr Kazi noted:
“Need report for his depression in 2004 and as he was on Xanax + see tony pastore x 18 times privately.”[18]
[18]DCB 43
32 It was unclear from the evidence in this application whether Tony Pastore was the psychologist that the plaintiff consulted in 2004.
33 The psychiatric treatment by Dr Kazi continued on 23 February 2011, when the plaintiff reported that he had seen a psychiatrist on 17 February 2011; that is, the day after he last saw Dr Kazi. The plaintiff stated to Dr Kazi at that time that he was still feeling depressed since 2000.[19]
[19]DCB 43
34 The psychiatrist in question on 17 February 2011 was not named or identified. Dr Kazi did not have any note or recollection of referring the plaintiff to see a psychiatrist at that time.
35 On the following visit on 10 March 2011, the plaintiff gave a history of seeing the psychiatrist, Dr Vladimir Bosanac, on the day preceding. Dr Bosanac had told the plaintiff he did not do medico-legal cases. On that day, Dr Kazi referred the plaintiff to Dr Rawaweera, psychiatrist. In her evidence, Dr Kazi confirmed that she had referred the plaintiff to Dr Rawaweera.[20]
[20]Transcript (“T”) 88
36 In this application, there has been no medical report tendered or relied upon in respect of the 2004 psychologist’s treatment. It may have been treatment from Tony Pastore or some unnamed psychologist that the plaintiff received.
37 The next medical treatment for psychiatric or psychological difficulties was with Dr Vladimir Bosanac. There is no medical report tendered or relied upon by the plaintiff to set out what the treatment and initiating symptoms were in February of 2011. The gap in treatment for the period 2004 and 2011 is unexplained by the plaintiff. In cases involving psychological and psychiatric disorders, the history of the plaintiff and the treatment received by the plaintiff in sequence is an important aspect in assessing the cause and extent of the psychological or psychiatric condition. There was no explanation given by the plaintiff as to why the psychologist of 2004 or Dr Bosanac or Dr Rawaweera have not provided reports in this application.
38 It is clear from the evidence that the plaintiff was prescribed Xanax in 2004. He used that medication for a limited period of time and, under the instruction of his general practitioner, Dr Kazi. The plaintiff ceased using that medication because it was addictive in nature. He continued to work at the defendant’s premises between the end of that treatment for psychiatric and psychological complaints until he took the redundancy package in July of 2006.
39 It is unclear from the evidence who or which doctor referred the plaintiff to Dr Bosanac. Dr Kazi, in her report dated 15 March 2011, stated:
“Mr Mlinar never had depression before and since then he never recovered from it at all. Recently started to see Psychiatrists (sic) Dr Bosanec (sic).”[21]
[21]PCB 36
40 As I have previously stated, Dr Kazi does not know Dr Bosanac and did not refer the plaintiff to him. There has to be some other referring general practitioner for the plaintiff to be able to see Dr Bosanac. There is no medical reporting from any such general practitioner. The plaintiff, in his evidence, stated, when questioned about treatment, as follows:
Q:“So you had no treatment at all for four and a half years?---
A:I didn’t have doctor treatment.
Q:So your back was okay at that time?---
A:It wasn’t okay.
Q:But you weren’t having any treatment?---
A:Not doctor treatment.
Q:So apart from doctor treatment, no prescribed medication?---
A:No prescribed medication.
Q:No physiotherapy?---
A:No physiotherapy. Like I said, no medical – no official help, like medical.”[22]
(sic)
[22]Transcript (“T”) 20, Lines 23-30
Treating Psychiatrists
Dr Robert Arulanantham
41 Dr Arulanantham, consultant psychiatrist, prepared two reports in respect of this application, dated 9 May and 20 May 2011. Dr Arulanantham reports as follows:
“Mr Mlinar presented with lower back pain and depression. Due to the pain he is socially isolated and cannot do any other work. He is responding to 60mg of Cymbolta (sic) and I will review him regarding major depression.”[23]
[23]PCB 42
42 On 20 May 2011, Dr Arulanantham reported to Dr Kazi as follows:
“Boris first experienced pain in 2000, this pain has continued until now with repeated episodes of lower back pain. He developed depression in 2004. He saw a psychologist regarding this for 16 sessions and his GP prescribed Xanax. He has ceased this and is now on Cymbolta (sic) 60mg. His pain has greatly disabled him and he is disappointed that he cannot work as a process worker as he has no training in anything else. Boris is being treated for depression.”
43 It is clear from that report that the treating psychiatrist at that time identified pain in the plaintiff’s lower back as being his main problem. Dr Arulanantham prescribed 60 milligrams of Cymbalta for Depression, and he reports that the plaintiff was responding to that treatment.
44 The evidence is Dr Arulanantham became ill and had to refer his treatment of the plaintiff to Dr P Rajan Thomas.
Dr P Rajan Thomas
45 Dr Thomas, consultant psychiatrist, prepared two reports in respect of this application, dated 18 February 2014 and 4 March 2014. Dr Thomas also gave evidence in this application and was cross-examined. Dr Thomas had six sessions of treatment with the plaintiff prior to giving evidence.[24]
[24]T132
46 In his report dated 18 February 2014, Dr Thomas assessed the plaintiff’s mental state as follows:
“Boris has been feeling anxious and depressed. He gets panicky with tremors and palpitations. He feels he is a failure because he could not provide for his family. He feels hopeless and has thoughts of suicidal ideation ex: drive his car onto a tree.”[25]
[25]PCB 45
47 Dr Thomas diagnosed the plaintiff with Major Depression with Anxiety. Dr Thomas has prescribed the plaintiff with Cymbalta, 120 milligrams, and Abilify, 10 milligrams.[26]
[26]PCB 46
48 In Dr Thomas’ opinion, the plaintiff’s mental state is related to his work. He states as follows:
“Yes. Boris originally developed back pain due to work related injury. As the injuries to his back occurred at different circumstances the pain was getting worse. Gradually the unbearable pain made Bo[r]is depressed and suicidal. His depression is severe.”[27]
[27]PCB 46
49 In his later report, Dr Thomas gives an opinion that the plaintiff does not have any capacity for restricted work due to the severity of his Depression. Dr Thomas states that, unfortunately, the back pain the plaintiff suffers from also instigates the worsening of the state of Depression.[28]
[28]PCB 48
50 In his evidence, Dr Thomas stated that he had only commenced treating the plaintiff in November of 2013. He stated that the plaintiff’s condition of Depression was getting better, although it was not fully under control.[29] Dr Thomas was asked about the causes and triggers for Depression, and the evidence was as follows:
Q:“I’m not understanding, because you’re saying now – your evidence is the back pain is being driven – sorry, the depression is being driven by the back pain?---
A:One of the triggers for the depression is back pain. You are talking about his depression being, it’s just about his wife that triggers the depression, the back pain triggers – okay, so the depression has been persistent and there are constant triggers which feed into the depression.”[30]
[29]T114
[30]T132, L22-29
51 In the latter part of his evidence, Dr Thomas confirmed that the plaintiff was improving under his treatment. The evidence was as follows:
Q:“And that the patient, Mr Mlinar, is improving, that’s what you say?---
A:Yes.
Q:And you would expect his improvement to continue?---
A:It depends on the level of such stress he is having in the future.
Q:Yes, that’s the same for everyone?---
A:Yes, at the moment, he is improving.”[31]
[31]T136, L17-22
52 Dr Thomas, in his evidence, confirmed his opinion that the plaintiff did not have any work capacity as he cannot reliably take any job.[32]
[32]T138
53 I have had the advantage of seeing Dr Thomas give his evidence in this case. In his reports and in his evidence, there was no indication that Dr Thomas had sought to question or verify any of the symptomology or history given by the plaintiff. Dr Thomas’ approach is one of therapeutic treatment and supportive of the plaintiff in this application. The critical part of Dr Thomas’ evidence is that the plaintiff is improving and continuing to improve in his condition under Dr Thomas’ treatment and also the medication. Whilst Dr Thomas says that the chemical interference caused by Depression in the first instance back in 2004 is always there, what is in doubt, on his evidence, is the level of the severity into the foreseeable future.
54 On the basis of the treating psychiatrist, Dr Thomas, I am not satisfied that the plaintiff is suffering from a psychiatric or psychological condition of such severity that is required under the Act for Serious Injury Certification. Further, I am not satisfied the plaintiff’s present condition is permanent.
Associate Professor George Mendelson
55 The plaintiff was examined on behalf of the defendant by Associate Professor Mendelson, consultant psychiatrist, for medico-legal purposes. Professor Mendelson prepared a report dated 20 February 2014.
56 Professor Mendelson’s opinion was:
“In my opinion at present Mr Mlinar’s depressive symptoms are well controlled. He describes some persistent manifestations of anxiety, due to the complaint of chronic back pain, his wife’s breast cancer, and his current situation. However, in my view at present the nature and severity of the manifestations of anxiety would not prevent Mr Mlinar from working within the limitations of his current physical condition.
… In my opinion the nature and severity of depressive symptoms previously experienced by Mr Mlinar did not warrant the diagnosis of Major Depressive Episode.
The depressive symptoms are currently well controlled with psychiatric treatment. Mr Mlinar describes ongoing manifestations of anxiousness, as set out above, and in my view at present these are due to an understandable psychological reaction to his complaints of chronic pain, his wife’s breast cancer, and his current situation.
…
Mr Mlinar’s overall prognosis is that of his physical condition.
…
In response to your question concerning Mr Mlinar’s work capacity I have stated above that in my opinion – in-so-far as his current emotional state is concerned – he does have the capacity for gainful employment within the limitations of his physical condition if considered feasible.
It is also my opinion that Mr Mlinar is not precluded by any psychiatric factors from becoming involved in a vocational rehabilitation programme.”[33]
[33]DCB 12-13
57 It is clear from Professor Mendelson’s opinion and report that he does not assess the plaintiff’s condition as being severe. Professor Mendelson assesses the plaintiff’s condition as being well controlled under psychiatric treatment. Professor Mendelson also is of the opinion that the plaintiff can work, as far as his psychiatric or psychological condition is concerned.
Dr Timothy Entwisle
58 Dr Entwisle, psychiatrist, prepared a report dated 1 September 2011. Dr Entwisle, in his history, took a note that Mr Tony Pastore, psychologist, was the person who treated the plaintiff for sixteen sessions, which he had paid for himself.[34]
[34]PCB 88F
59 Dr Entwisle concluded that the appropriate opinion at that time was that the plaintiff suffered from an Adjustment Disorder with Depressed and Anxious Mood. I note that Professor Mendelson agrees with Dr Entwisle’s assessment in this regard.
Conclusion
60 Based on the medical opinions and analysis set out in these reasons, I am not satisfied that the plaintiff has proven, on the balance of probabilities, that he has a psychological or psychiatric condition which is of such severity to satisfy the statutory test. I am satisfied that with continuing psychiatric treatment and medication, the plaintiff’s condition will continue to improve and that the plaintiff has failed to establish that his condition is permanent, in the sense of being for the foreseeable future. The unexplained gap in treatment between 2004 and 2011 reinforces this finding.
61 The application for serious injury certification in respect of psychological and psychiatric injury, both in respect of pain and suffering and loss of earning capacity is dismissed.
Injury to the Plaintiff’s lower back
62 I have previously set out the plaintiff’s history of injury to his lower back between the year 2000 and 2005. The plaintiff has had a total of four CT scans of his lumbar spine. He has had one MRI examination of his lumbar spine. The conclusion in respect of the last CT scan of the lumbar spine dated 4 February 2011 is as follows:
“Early degenerative change L5-S1 facets. Mild L5-S1 broad based disc bulge and end plate osteophyte formation. No central canal stenosis. No foraminal stenosis. There is no interval change since previous CT.”[35]
[35]PCB 88
63 It is noted in the body of the report that the L5-S1 disc height is reduced and associated with a mild broad-based posterior disc bulge and the end plate osteophyte formation similar to previous examinations.[36]
[36]PCB 88
64 The medical opinions in respect of the plaintiff’s physical injury are as follows:
Dr Yasmin Kazi
65 Dr Kazi, general practitioner, prepared four reports, dated 10 May 2006, 15 March 2011, 21 November 2013, 9 February 2012 (Exhibit 3).
66 In an historical context, the first and most important document prepared by Dr Kazi is the Certificate of Capacity dated 19 April 2006. I have referred to this document earlier in these reasons. The plaintiff was certified by Dr Kazi as being fit for normal duties. Dr Kazi, in her evidence, gave the caveat, and indeed on the Certificate itself, that the plaintiff needed to continue with physiotherapy as required.
67 Subsequent to that certification of capacity, Dr Kazi prepared a report to the defendant’s return to work co-ordinator. In that report, she stated:
“Mr. Mlinar is a keen worker and very eager to start normal duties. Recently I have certified him fit to work in pre-injury duties with lifting, bending and standing. I don’t know yet how he is coping with it, as I have not seen him since he received this clearance certificate. If he can work now with these duties without having recurrence of pain/stiffness then he will be fine to carry out any duties without restriction.
With this type of injury to the back there are always chances of flare-ups with or without aggravating factors. So far Mr. Mlinar must be doing fine as I am assuming from non-attendance[.] I hope he continues to feel the same.”[37]
[37]PCB 33-34
68 In her report dated 15 March 2011, Dr Kazi concentrates on the psychological and psychiatric aspects of the plaintiff’s condition. She stated in that report as follows:
“He has tried a few different types of work but the back pain stopped him from continuing. It will be hard for him to do any pre-injury type of work and any work as he may not be able to sustain it.”[38]
[38]PCB 36
69 I note that the plaintiff did not consult Dr Kazi between 19 April 2006[39] and 3 February 2011.[40] It is clear that Dr Kazi is relying on the history given to her by the plaintiff when making this statement.
[39]DCB 49
[40]DCB 43
70 In her final report dated 21 November 2013, Dr Kazi stated:
“With the lumbar sacral disc prolapsed he will have problem all the time and on and off can get worst with it as well.”[41]
(sic)
[41]PCB 37
71 By way of completeness, Dr Kazi prepared a report dated 9 February 2012. This was Exhibit 3 in the application.
72 In that report, Dr Kazi stated the plaintiff:
“… WAS WORKING ON AND OFF FROM MAY 2006 AS SUSTAINED INJURY THEN BUT PERMANENTLY STOPPED ON 03/07/2006 AS COULD NOT CONTINUE BECAUSE OF HIS BACK PAIN AND DEPRESSION GETTING WORST (sic).”[42]
[42]Exhibit 3
73 This document was prepared for the purposes of a permanent disability claim under the plaintiff’s superannuation. Dr Kazi conceded that she did not know the condition of the plaintiff as at 3 July 2006. I do not accept that the plaintiff ceased work in July 2006 as a result of his pain and depression. It is clear from the evidence that the plaintiff took a voluntary redundancy. Dr Kazi prescribes the medications of Brufen and Panadeine Forte for the plaintiff. These medications are for pain relief for the plaintiff’s back.
74 In her evidence, Dr Kazi conceded that the plaintiff was able to do light activities with his back condition.[43]
[43]T74
75 In her evidence, Dr Kazi was asked about the opinion of Professor Goldwasser, and she said as follows:
Q:“He saw Professor Goldwasser on behalf of his solicitors and I’ll put it as fairly as I can. If he just looks at the spinal condition, Professor Goldwasser says that he could manage light duties which are suitable when considering only the spinal condition, so if you just look at the spinal condition, he would be capable of light duties. You wouldn’t disagree with that, would you?---
A:I wouldn’t disagree completely but as I said, light duties means light duties. There are lots of places which won’t even allow - they can give them lots of things but they won’t be able to do because they’re not experienced enough or - - -
Q:Let’s just say given retraining, and I’m asking you to assume that?---
A:With retraining and an employer that can allow him to do whatever he wanted to with his back, then yes.
Q:So you wouldn’t disagree with that?---
A:No, not with that.”[44]
[44]T90, L27 – T91, L10
76 Dr Kazi was unable to distinguish between the consequences in relation to the physical injury and the psychological condition of the plaintiff when it came to assessing the plaintiff’s capacity to work. The evidence was as follows:
Q:“So, therefore, in terms of assessing his capacity for work, you can’t disentangle from what is incapacity as caused by his back as opposed to what is caused by psychological sequelae. They are intertwined, aren’t they?---
A:One thing is that they can be intertwined, because you’re not looking at this like an object type which doesn’t move because you have to think of his whole body and mind as well. But the major problem was, which has started his problems, he (sic) incapacity to work was his lower back problem and it is still continuing to do the same. That leads to, what Dr Goldwasser is saying as well, that led to the psychological problems.”[45]
[45]T92, L28 – T93, L8
77 It was submitted on behalf of the defendant that Dr Kazi was an advocate for the plaintiff in this application. I do not accept that she was actively advocating on behalf of the plaintiff. It was clear that Dr Kazi was very sympathetic to the plaintiff, and in particular to his wife, and the position that both of them now find themselves. The plaintiff’s wife is currently in remission but unable to work and on a Disability Pension and the plaintiff is in receipt of a Carer’s Pension for his wife. In particular, when Dr Kazi was challenged about the certification made in April 2006, she responded as follows:
“… I only gave him certificates so he can stay at work because he didn’t want to lose his job.”[46]
[46]T101, L3-4
78 A fair summary of Dr Kazi’s evidence and opinion is that she accepts that the plaintiff is in pain as a result of his low-back injury and prescribes him pain-relief medications to deal with that. She relies on the treatment given by the psychiatrist to deal with the plaintiff’s psychological position. She concedes in her evidence, that the plaintiff is able to do light work.
Dr V I Karlov
79 Dr Karlov, consultant physician, prepared two reports, dated 6 September 2005 and 4 July 2012. The plaintiff was referred to Dr Karlov by his general practitioner, Dr Kazi.
80 In his first report, Dr Karlov was satisfied, on the basis of the scans performed on the plaintiff, that he had a posterior disc lesion pressing on the cord and compromising the S1 nerve root.[47]
[47]PCB 30
81 In his more recent report dated 4 July 2012, Dr Karlov diagnosed the plaintiff as having an L5-S1 disc lesion and facet joint disease with osteophytes.[48]
[48]PCB 41
82 Dr Karlov was of the view that the plaintiff’s prognosis was as follows:
“Looking at the duration of time that has been expired and the ongoing symptoms and their severity Mr. Mlinar is unlikely to regain any work capacity within the foreseeable future. My prognosis and estimate of future medical treatment.
…
After sustaining such a prolonged injury over many years with its cumulative affect Mr. Mlinar’s condition is likely to deteriorate and he would need ongoing treatment to maintain his current limited ability to function.”[49]
[49]PCB 41
Dr Helen Sutcliffe
83 Dr Sutcliffe, occupational physician, prepared one report, dated 24 August 2012. Dr Sutcliffe noted in the history of her report as follows:
“He was then provided with a clearance on 17 April 2006 when he returned to work for a couple of weeks. The department closed down and he informed me he obtained the clearance so he would be eligible for a redundancy.”[50]
[50]PCB 53
84 At the time of her examination, Dr Sutcliffe noted that the plaintiff was currently taking Nurofen, Panadol, Cymbalta and Voltaren cream.
85 On examination, Dr Sutcliffe found that the plaintiff’s back had a normal contour, that there was muscle spasm noted during the course of movement of the lumbosacral spine where flexion was achieved at 70 degrees but there was no extension. There was no abnormality of reflexes in the lower limbs and sensation was intact.[51]
[51]PCB 55
86 In Dr Sutcliffe’s opinion, the plaintiff’s prognosis was likely to be poor, given the continuing and persisting discogenic pain, with some radiation into his left lower limb.[52] Dr Sutcliffe was of the opinion that the plaintiff would be unable to undertake any manual handling work, including process or machine operation.
[52]PCB 57
87 Dr Sutcliffe, when discussing in her report the suitability of the plaintiff to return to work, stated that:
“In addition to the disability related to the discogenic pain in the lumbosacral spine I also believe he has persistent disability related to adjustment disorder with depression and anxiety, partially related to the persisting pain and disability he has developed.”[53]
[53]PCB 58
88 In this case, Dr Sutcliffe was unable to separate out the effect of the psychological or psychiatric condition of the plaintiff from the physical condition of the plaintiff in relation to his ability to work.
Dr Robyn Horsley
89 Dr Horsley, occupational physician, prepared a report dated 27 November 2013.
90 After an extensive examination of the other medical opinions given to her, she stated that the plaintiff had a number of restrictions to be applied to his actions. The restrictions described are as follows:
“• Avoidance of repetitive over reaching;
• Avoidance of prolonged static forward flexion of the lumbar spine;
• Avoidance of truncal rotation;
• Avoidance of repetitive lifting;
• Avoidance of repetitive bending;
• Avoidance of repetitive pushing and pulling;
• Avoidance of sharp movement involving the lumbar spine;
• Good manual handling technique, even when lifting light items;
• Avoidance of working in awkward and confined spaces;
• Avoidance of lifting items greater than 10 to 12kgs except on an occasional basis;
• Avoidance of lifting items up to 10kgs on a repetitive basis.”[54]
[54]PCB 67
91 Dr Horsley described the plaintiff as being significantly disabled. However, she was suggesting that the appropriate course was that he undergo a vocational rehabilitation course, but described his prognosis for return to work as “guarded”.[55]
[55]PCB 68
Associate Professor Miron Goldwasser
92 Professor Goldwasser, orthopaedic surgeon, assessed the plaintiff on behalf of the plaintiff’s solicitors. He prepared a report dated 15 November 2013.
93 Professor Goldwasser noted the plaintiff’s main symptom as a sharp pain in the central lower back region.[56] Professor Goldwasser took a history from the plaintiff that he was using Voltaren cream, Brufen and Panadeine Forte, together with Cymbalta. He noted that the plaintiff had ceased taking Nurofen some three months prior to November 2013.
[56]PCB 73
94 In the history section of the report, Professor Goldwasser noted that the plaintiff made it clear that the psychological effect on his mind has been a major factor contributing to his condition.[57]
[57]PCB 75
95 During the course of an examination, Professor Goldwasser noted as follows:
“There was a subjective alteration of sensation in the feet. While sensation was present, he reported it felt less sharp over the dorsum and lateral toes of the left foot and also over the dorsum and lateral toes of the right foot. … .
…
L5/S1 disc height is reduced and associated with mild broad-based disc bulge and end plate osteophyte formation, similar to previous examination.”[58]
[58]PCB 76
96 Professor Goldwasser’s diagnosis was as follows:
“The history is consistent with him suffering several episodes where he developed pain and back trouble. This is consistent with him suffering a soft tissue injury to his lower back. This probably occurred in the presence of some pre-existing degenerative change in the lumbar spine, particularly at the L5/S1 level.”[59]
[59]PCB 79
97 Professor Goldwasser did not consider that the plaintiff suffered from radiculopathy.
98 Professor Goldwasser recommended that the plaintiff undertake a self-management exercise program to assist in the treatment of his spinal condition.[60]
[60]PCB 80
99 On the issue of work capacity, Professor Goldwasser stated as follows:
“If the spine is considered an isolation and not including the psychological consequence (this is a somewhat artificial separation), it would be reasonable for Mr Mlinar to avoid activities, which place a heavy stress on his back such as heavy lifting and repeated bending and stooping. He is better off being able to change his position frequently and not sitting or standing in one position for prolonged periods of time. I consider the reality is physical and psychological matters are intertwined and, for this reason, it is likely that Mr Mlinar will not return to the workforce in the future.
I note that he requested a clearance certificate from his family doctor and obtained this in June 2006. There is no history of further injury to his back since then. Thus, I consider that probably he could manage light duties, which are suitable, when considering only the spinal condition.”[61]
[61]PCB 81
100 In summary, Professor Goldwasser assesses the plaintiff as being capable of doing light work when assessing the spinal injury in isolation.
Mr Michael J Dooley
101 The plaintiff was examined by Mr Dooley, orthopaedic surgeon, on behalf of the defendant’s solicitors. Mr Dooley prepared two reports, dated 24 February 2014 and 4 March 2014.
102 Mr Dooley reported as follows:
“I believe that in the episode of June 2005 Mr Mlinar aggravated underlying degenerative disc disease at the lumbosacral level. It is now nearly nine years since this episode occurred. It would be my view from a clinical point of view that the constancy and intensity of Mr Mlinar’ s ongoing pain are out of proportion to any soft tissue injury sustained and to his underlying degenerative disc disease. I believe that it is evident on examination today that there is a significant psychological component to his ongoing symptoms. … .”[62]
[62]DCB 20
103 In Mr Dooley’s opinion, the plaintiff’s condition is as follows:
“From an orthopaedic viewpoint only, I would expect Mr Mlinar to note some intermittent low back pain. I would not expect his condition to deteriorate over and above the natural evolution of any underlying degenerative disc disease. His orthopaedic condition has stabilised. Essentially his prognosis depends on that of his psychological condition.
…
Mr Mlinar confirmed that he had not had specific treatment for his back during this period of time. He said that treatments had not helped him. Following the aggravation of June 2005 I would have expected Mr Mlinar to have noted some ongoing intermittent low back pain. I would not have expected this to have interfered with his ability to carry out a wide range of employment, domestic and leisure pursuits.
Mr Mlinar would not be able to carry out his preinjury duties. He has a physical capacity to carry out light physical work and clerical duties.
…
I believe that the majority of Mr Mlinar’s presentation relates to his psychological condition. It is important that he receives appropriate treatment in this regard.”[63]
[63]DCB 21
104 In a follow-up report dated 4 March 2014, Mr Dooley confirmed his opinion that the majority of the symptomology for the plaintiff’s case related to his psychological condition.
The credit of the Plaintiff
105 The plaintiff gave evidence and was cross-examined in this application. The plaintiff was forthright when describing his disabilities, both psychological and physical. He was able to concentrate during the course of cross-examination and answer all questions. I formed the conclusion that the plaintiff was exaggerating his disabilities. I accept that he has physical pain as a result of his low-back injury.
106 The plaintiff is able to perform all of the activities around the home that are involved in caring for his wife. He is in receipt of a Centrelink payment of Carer’s Pension to do so. He and his wife have three young children who need to be taken to and from school. He attends to all of those tasks.
107 I do not accept that the plaintiff’s level of depression is as drastic as he portrayed it to be in his answers in the witness box. His treating psychiatrist has given the opinion that the symptoms are improving. The plaintiff, in fact, agreed that his depression was improving with treatment. He then went on to set out in full how depressed he was and the effect on his sleep and the like.
108 In summary, on the issue of the plaintiff’s credit, I find that he was exaggerating his symptoms and failed to give any explanation whatsoever to the Court about the psychologist’s treatment in 2004 and the psychiatric treatment by Dr Bosanac in 2011. He also failed to give any proper explanation as to why there was no medical treatment sought by him between 2006, when he last saw Dr Kazi, and when he returned to see her in 2011.
Consequences of the low-back injury to the Plaintiff
109 The plaintiff relied upon two affidavits, sworn 24 October 2012 and 6 March 2014. He also gave evidence and was cross-examined in this application.
110 The plaintiff, in his first affidavit, stated that he finds it very difficult to fall asleep and then to remain asleep. He stated that he would get a few hours of broken sleep each night and then would wake feeling tired the following day.[64] In his later affidavit, the plaintiff stated that the pain makes it hard for him to settle at night. He stated that he also would wake a few times each night due to his back pain. Once he was awake, he stated that he would then have trouble getting back to sleep. The consequence of all of that is that he feels tired all of the time.[65]
[64]PCB 16
[65]PCB 21
111 I accept that the plaintiff does have his sleep interrupted by the pain from his lower back. I accept that the consequence of that is that he is feeling tired a lot of the time. He has, on his evidence, got into the habit of having a sleep during the course of the day. I find that, as a consequence, the interruption to the plaintiff’s sleep is a significant consequence for him.
Pain
112 The plaintiff has complained of pain in his lower back from 2000 onwards. He continues to complain about the pain to his lower back. He stated in his first affidavit that the pain to his lower back was present all the time. It fluctuated in the level of severity and spread down his left leg.[66]
[66]PCB 15
113 In his later affidavit, the plaintiff continued to state that his pain was in the middle of his lower back and was present all the time. The only change is in the degree of intensity.[67]
[67]PCB 19
114 The plaintiff has given evidence in this application about the pain to his back which confirms what he had previously sworn in the two affidavits relied upon by him in this application. Consistent with that reporting of pain, he has told each and every one of his treating medical practitioners of the pain in his lower back. Indeed, he attributes the pain as being the instigator of his depressive state. I regard the plaintiff’s pain in his lower back as a very considerable consequence for him.
Medication
115 The plaintiff has deposed to taking different medications over the course of his injured state. The plaintiff’s current medication is:
(a) Brufen, generally three to four days each week;
(b) Panadeine Forte;
(c) Cymbalta, two per day;
(d) Abilify, one at night.
116 I accept that the Brufen and Panadeine Forte are taken for the purposes of his low-back injury. The Cymbalta medication is to deal with his psychiatric/psychological condition. The Abilify, as I understood the evidence from Dr Thomas, was to assist the plaintiff in sleeping at night. On the basis of the existing evidence, the plaintiff will be required to take these medications, or similar medications, into the foreseeable future. In respect of the pain-relief medications, that is clearly the case. I accept that the need for the plaintiff to take pain-relief medications on a daily or near daily basis into the foreseeable future as a very significant consequence for him.
Activities of daily living
117 I have listened to the evidence of the plaintiff and do not accept that his activities of daily living have been significantly interfered with as a result of the injury to his lower back. He performs the task of Carer to his wife, who suffers from cancer. He looks after the three daughters in his home and does most of the duties around the house in combination with assistance from his mother. Whilst his evidence is that he is somewhat limited in what he can do, I find that he can do most, if not all tasks, as long as he takes his time in doing them. The plaintiff showed a back brace that he wore in the course of his evidence. He had given a history to a number of doctors that he wore a back brace. I do not accept that the need to wear the back brace is necessary, as none of the doctors recommended its use.
Conclusion
118 This is a very finely balanced case. I am satisfied that the plaintiff suffers the aforementioned consequences as a result of the injury to his lower back and such consequences, when considered together and judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked and as being at least very considerable. I consider that the consequences as described are for the foreseeable future, in the sense that they are permanent.
Loss of earning capacity
119 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, he must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
120 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
121 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
122 I accept that the “without injury” earnings for the plaintiff was $48,061.00 gross per annum. The evidence is that the plaintiff is currently engaged in full-time care activities in relation to his wife.
123 The plaintiff has to prove that he does not have the ability and capacity to earn more than $28,840.00 gross per annum. This figure represents 40 per cent of the plaintiff’s “without injury” earnings.
124 I accept the evidence of Dr Kazi, Professor Goldwasser and Mr Michael Dooley, that from a physical point of view, the plaintiff has a capacity to do light duties work. I accept that Dr Horsley, whilst guarded in her prognosis for the plaintiff, is of the opinion that a rehabilitation and retraining course is appropriate for the plaintiff. The final capacity of the plaintiff can only be known at the end of such a course and its completion. On the evidence, there has been no such rehabilitation course undertaken by the plaintiff to determine his capacity in this regard. I have not relied on Dr Sutcliffe’s opinion as to the plaintiff’s employability as she was unable to disentangle the psychological or psychiatric aspects of the plaintiff’s complaints from the physical aspects of his complaints.
125 In respect to the psychological or psychiatric injury and its impact on the plaintiff’s loss of earning capacity, I have previously dealt with in these reasons.
Conclusion
126 In respect of the plaintiff’s loss of earning capacity, based on the reasons outlined above, I find that the plaintiff has failed to satisfy the statutory test in this application. I find that as a result of his low-back injury, the plaintiff retains a capacity to engage in light duty employment or alternative duties into the foreseeable future.
127 I grant the plaintiff leave to bring proceedings for the recovery of damages in respect of pain and suffering damages only in relation to his low-back injury.
128 I dismiss the application to be granted leave to recover damages in respect of loss of earning capacity in respect of the low-back injury. I dismiss the application for serious injury certification in respect of pain and suffering and loss of earning capacity in respect of the psychological or psychiatric condition defined as Depression and Anxiety.
129 I will hear the parties on costs.
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