Moohsini v Super Metal Recycling Pty Ltd
[2016] VCC 597
•20 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-03196
| GHULAM ABBAS MOOHSINI | Plaintiff |
| v | |
| SUPER METAL RECYCLING PTY LTD (ABN 126 563 693) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 October 2015 | |
DATE OF JUDGMENT: | 20 May 2016 | |
CASE MAY BE CITED AS: | Moohsini v Super Metal Recycling Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 597 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity – identity of injury – aggravation of pre-existing degenerative change – disentangling
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr A W Adams QC with Ms A Magee | Russell Kennedy |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the defendant on or about 24 May 2011. 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 s134AB(37)(38) of the Act.
2 The plaintiff brings this application first pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious injury” is defined relevantly as meaning “(a) permanent serious impairment or loss of a body function”. The body function relied upon in this application is principally the lumbar spine.
3 The plaintiff, at the commencement of the proceeding, also relied upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. At the conclusion of all the evidence, a claim under this heading was abandoned.
4 The plaintiff relied upon two affidavits sworn 21 February 2014 and 1 October 2015[1] and gave viva voce evidence. Further, both parties relied on medical reports and other material which was tendered in evidence.
[1]Exhibit A
Outline of Section 134AB
5 The impairment of a body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act imposes specific burdens in relation to a claim for loss of earning capacity. By ss(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 more than significant or marked and as being at least very considerable.
6 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. Here, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent, or more both at the date of hearing and permanently thereafter. Subsections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection 38(g) requires questions of rehabilitation or retraining to be considered in determining whether the 40 per cent loss has been established.
7 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Jayatilake v Toyota Motor Corp Australia Limited[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3][2008] VSCA 167
8 In a written Statement of Issues at the commencement of the proceeding, defence counsel highlighted the following matters:
(a) Nature and extent of physical injury and nature and extent of psychiatric injury;
(b) Disentangling of the psychiatric-psychological consequences from the physical consequences for the purposes of s134AB(38)(h);
(c) Aggravation of pre-existing congenital back condition;
(d) Aggravation of pre-existing psychiatric condition;
(e) The consequences from any physical injury are not “very considerable” and are not “more than significant or marked”;
(f) The plaintiff has not established any or any sufficient loss of earning capacity.
9 In particular, defence counsel challenged the nature and extent of any physical injury in light of a report from a treating neurosurgeon, Mr Armin Drnda, in a report dated 30 June 2011.[4]
[4]Exhibit 3, Defendant’s Court Book (“DCB”) 15
The Plaintiff’s evidence
10 In his first affidavit sworn 21 February 2014,[5] the plaintiff swore he was born in Afghanistan in January 1969, was married with six children and his wife and children were currently living in Pakistan.
[5]Exhibit A
11 The plaintiff attended school in Afghanistan until he was approximately fourteen years old and thereafter worked as a shopkeeper in a store and then worked in a supermarket.
12 In about 2004, he moved from Afghanistan to Pakistan and in approximately 2009, he moved to Indonesia, where he lived in a refugee camp and did not work.
13 The plaintiff came to Australia from Indonesia in early December 2010 and shortly thereafter moved to Melbourne looking for work.
14 The plaintiff swore that in early 2011, he was referred to a psychiatrist, as he believed he was suffering from some “mild depression” as a result of having to leave his wife and children in Pakistan.
15 Thereafter, the plaintiff deposed he began working for the defendant on 9 May 2011. In viva voce evidence before me, this was corrected to February 2011 on the basis that monies were paid into his bank account between those two dates, after tax, and it was only from 9 May 2011 that he was “on the books”.
16 The plaintiff swore he was employed on a full-time basis and his job involved working with vehicle parts which required repeated bending and heavy lifting. This evidence was not challenged in cross-examination.
17 The plaintiff further stated that he was paid $120 per day clear for five days’ work from Monday to Friday and was also paid $150 for approximately six hours’ work on Saturdays. Once again, this was not challenged in cross-examination.
18 The plaintiff further swore that on 24 May 2011, he was lifting some heavy vehicle parts when he felt pain in his low back. Soon afterwards, he also felt pain in his legs, which he stated went down as far as his feet.
19 The plaintiff deposed he continued to work in pain for the next few days but the pain, particularly in his legs, became more and more severe and he had to stop working. He states he thereafter left work and has been unable to return to any work since.
20 Thereafter, he attended his general practitioner, Dr Quasin Hamimi, on 15 June 2011. He swore his general practitioner began prescribing him Endep, as well as Panadol Osteo, for his back pain. He states he was also prescribed Lexapro because he was depressed about not being able to work.[6]
[6]Exhibit A, Plaintiff’s Court Book (“PCB”) 17, paragraph 8
21 The plaintiff’s employment was terminated on 21 June 2011, and on 23 June 2011, his general practitioner referred him for a CT scan and began prescribing him an anti-inflammatory, Mobic. The radiologist reported back to Dr Hamimi in terms which were essentially normal except:
“There is a bilateral L5 pars defect.”[7]
[7]Exhibit D, PCB 56
22 Thereafter, the plaintiff was referred to neurosurgeon, Mr Drnda, in late June 2011 and was also referred for physiotherapy in Dandenong.
23 In November 2011, the plaintiff travelled to Pakistan to visit his sick mother. He stated he had some physiotherapy treatment whilst in that country, which provided him with some temporary pain relief but he stated the pain always returned.[8]
[8]Exhibit A, PCB 18
24 Thereafter, the plaintiff returned to Australia in mid March 2012 and started an English course at a TAFE. He attested:
“… The course involved me attending TAFE approximately 12 hours per week. I found it very difficult to remain sitting during the class times and I had to regularly stand up and move around whilst the classes were taking place.”[9]
[9]Exhibit A, PCB 18, paragraph 13
25 Thereafter, the plaintiff swore that his lower back and leg pain increased in the second half of 2012 and his dosage of Tramal was increased from 50 milligrams to 100 milligrams.[10]
[10]Exhibit A, PCB 19
26 Subsequently, the plaintiff’s general practitioner referred him for a further CT scan on 4 April 2013, and on 21 August 2013, he was referred to neurosurgeon, Professor Bittar, for a second opinion. He thereafter underwent an MRI scan of the lower back on 31 July 2013.[11]
[11]Exhibit D
27 The first CT scan of 23 June 2011 revealed “bilateral L5 pars defect” and the later CT scan of 4 January 2012 recorded “focal defect is seen at pars-inter articularis on the right side of L5 vertebra”.
28 At the time of swearing his first affidavit on 21 February 2014, the plaintiff swore that his current situation was as follows:
(a) He continued to see his general practitioner approximately once per month;
(b) His daily intake of tablets consisted of one to three tablets of Tramal; an average of four tablets of Panadol Osteo; one tablet of Mobic, and one tablet of Celebrex. In addition, he was taking two tablets of Endep and one tablet of Lyrica, and an anti-depressant at night;
(c) He has ongoing pain in his lower back and both legs, with the pain at the back of his legs the most severe;
(d) Walking for greater than 20 minutes causes pain in the lower back to become more severe;
(e) Standing up from a sitting position produces a lot of pain in his legs;
(f) He can only do very light housework such as washing glasses and dishes and is unable to do any heavy lifting or jobs that involve bending and reaching, such as hanging out the washing. His sleep is interrupted regularly during the night because of pain. This occurs approximately every two to three hours;
(g) The lack of sleep caused by pain causes him to feel vague during the day and he finds it difficult to concentrate. During the day, he will try and do some homework for his TAFE course;
(h) He has not been able to play either volleyball or soccer since the accident, which activities he enjoyed prior to his injury;
(i) He has become very depressed about his situation.
29 In his second affidavit sworn 1 October 2014, the plaintiff swore that he had constant pain in both his lower back and his legs, the severity of which varies. He swore that any bending over increases his back pain, as does lifting even fairly light items such as bags of groceries.[12]
[12]Exhibit A, PCB 30, paragraph 2
30 The plaintiff further swore that he sleeps poorly and wakes up regularly each night with back pain. His leg pain seems to be less of an issue when he lies down and does not bother him in bed to the same extent as his back pain does. He continues to see his general practitioner approximately once per fortnight. He has reduced his Lyrica medication from 150 milligrams to 75 milligrams because it made him feel dizzy and lethargic. He also takes Tramadol “most days” for his pain. He swears that he does not like taking this medication but his back and leg pain is often so severe that he cannot cope without it. He takes Mobic approximately twice per week compared to daily previously. The reduction was because of stomach pain and reduced appetite.
31 Finally, the plaintiff swears that his family has now moved to Australia to live with him and that he would “… love to be working and earning an income. [He] want[s] this even more now that [his] family has moved out here to live with [him] … .”[13]
[13]Exhibit A, PCB 31-32, paragraph 10
32 The plaintiff was extensively cross-examined and I am satisfied that his complaints of physical pain and the consequences he cites are honestly related by him.
33 However, it is clear the plaintiff was suffering from a pre-existing psychological condition, probably of a Post-Traumatic Stress Disorder type as a result of matters in his past that caused him to be a refugee. Further, in his latter affidavit, he states:
“I cry regularly. When I cry around other people I find it embarrassing and I want to get away and be on my own.
I feel sad and frustrated that my pain is not getting any better over time. I wish my pain would go away. The medications I take reduce my pain but it never goes away. The pain is not improving over time.”[14]
[14]Exhibit A, Plaintiff’s affidavit sworn 1 October 2015, PCB 31, paragraphs 6-7
The Defendant’s submission
34 Senior Counsel for the defendant has relied on two main contentions.
35 First, he submits the plaintiff has not proved the nature and extent of a physical injury which would explain the ongoing pain and consequences attested to.
36 Secondly, given that the plaintiff suffered from a pre-existing psychological injury, it is clear that such condition has been exacerbated by the physical injury and there needs to be a disentangling of the respective consequences.
37 In support of both contentions, Senior Counsel relies on the reports of a treating neurosurgeon, Mr Drnda, in his reports dated 30 June 2011 and 31 August 2012.[15] Mr Drnda examined the plaintiff only once, on 30 June 2011 on referral from Dr Hamimi. He noted the following relevant history:
[15]Exhibit 3, DCB 15 and 15A
(a) The plaintiff suffered from Post-Traumatic Stress Disorder and Depression;
(b) He gave a history that his job required handling of metal objects with quite significant physical strain and he had been engaged in that work for approximately one month;
(c) On examination, he moved freely without distress and was neurologically intact. The pain in his legs was in a distribution that did not cover a typical dermatomal pattern;
(d) A CT scan showed:
“… basically findings that are close to normal, probably normal for his age. Maybe there are some degenerative changes in the L3/4 and L4/5 discs but there is no significant bulge. There is no neural compression.”[16]
[16]Exhibit 3, DCB 15
(e) Importantly, defence counsel relies on the following passage:
“The patient really does not have anything surgical and I am not entirely sure why he was referred, whether it was expect[ed] from me to support Work Cover or something else. Definitely there is no role for surgical treatment or epidural injections. This patient looks pretty fit and he should continue to keep fit with exercise such as power walking and swimming. …
In relation to his work, if one looks at his spine, I would say that the patient would be fit. The pain that he claims can be potentiate[d] by the fact that he has post-traumatic stress disorder and depression, so it is difficult to state whether just over one month of physical work would be enough to claim a work related injury. I would not like to go into this dispute, so I would like to keep myself out of work cover claims, especially for patients that are not surgical. The patient may be helped in the future by serious physiotherapy with structured exercises rather than local therapy such as massages and other useless manipulations.”[17]
[17]Exhibit 3, DCB 15
38 In his second report dated 31 August 2012, this time to the plaintiff’s solicitors, Mr Drnda confirmed the one and only attendance, and opined as follows:
“● The diagnosis is low back pain and mild lumbar spondylosis.
●The prognosis of the patient’s condition would be in normal circumstances good. I would expect the patient with such a spine would be able to return to duties that do not require a lot of repetitive bending, twisting and heavy lifting but work that would alternate a bit of sitting, walking, lifting and carrying lighter objects. However, the prognosis is with significant guarding given that the patient has got post-traumatic stress disorder and depression as per his GP.
The patient should have appropriate physiotherapy, psychological support and he should be able to return to the workforce.”[18]
[18]Exhibit 3, DCB 15A – 15B
39 Defence counsel also relies on the reports from Dr Jacqui Dobson, gastroenterologist, dated 18 March 2011 and 20 April 2011.[19]
[19]Exhibit 2, DCB 13 – 14
40 It is clear from these reports that in March 2011, the plaintiff was suffering:
“… numerous symptoms all over his body, including weakness in his legs, musculoskeletal type pains in his chest, tiredness, dizziness and a range of other problems. … .”[20]
[20]Exhibit 2, DCB 13
41 Defence counsel also tendered in evidence a report dated 11 April 2012 from a treating consultant in rehabilitation medicine, Dr Samantha Kennedy.[21]
[21]Exhibit 4, DCB 15-16
42 Dr Kennedy saw the plaintiff on 11 April 2012 and took a consistent history of him injuring his back at work on 24 May 2011. She noted a complex past medical history, including Depression. She also noted his current medication, including Panadol Osteo and Tramadol. At that stage, he stated he was on WorkCover payments and a Newstart allowance through Centrelink. On examination, she noted, inter alia:
“… He was able to flex forward to the mid-shins and this was comfortable. Extension was limited because of pain. … .”[22]
[22]Exhibit 4, DCB 16
43 Dr Kennedy further noted the plaintiff had brisk ankle jerks and there were no sensory abnormalities. Relevantly, she noted that a CT scan of the lumbar spine on 23 June 2011 showed a bilateral L5 pars defect but was otherwise basically normal. Dr Kennedy noted as follows:
“I am presuming that the pars defects on imaging are congenital in nature although this seems to be where most of Ghulam’s pain resides. He has also likely had a muscle strain/sprain in the work injury which is contributing to ongoing pain.”[23]
[23]Exhibit 4, DCB 17
44 Defence counsel also rely on the reports of consultant surgeon, Mr Michael Troy, dated 22 September 2011 and 5 July 2012.[24]
[24]Exhibit 6, DCB 21 – 36
45 In the first report, following an examination on 20 September 2011, Mr Troy stated that a CT scan performed on 23 June 2011 confirmed the plaintiff had a bilateral pars defect. On that occasion, Mr Troy considered the plaintiff had suffered a soft-tissue injury relating to his lower lumbar spine from L4-5 to L5-S1. The history and examination were consistent with the lifting the plaintiff described on 24 May 2011.[25]
[25]Exhibit 6, DCB 23
46 Further, he considered the soft-tissue injury to be a “new” injury, although there was a (pre-existing) pars defect shown on radiology. The work-related musculoligamentous injury was such that the plaintiff was unable to return to work in his pre-injury duties but he thought he was capable of other work such as a security guard in a factory site, or a meeter-greeter in a store, if his language ability allowed him to do it.[26] He thought he could do alternative duties sitting at a desk or a warehouse where he could sit and stand and move at will. It would also have to be where someone could understand his limited English.[27]
[26]Exhibit 6, DCB 24
[27]Exhibit 6, DCB 24
47 Mr Troy examined the plaintiff on a second occasion, being 3 July 2012. He took a history that the back was still painful and that there was interference in his sleep after two hours. He was taking Panadeine, Mobic and Tramal on that occasion. It would appear that his examination was essentially normal, although there was a finding of 10 degrees extension of the thoracolumbar spine. His diagnosis on that occasion was “bilateral pars defect at L5/S1”. When asked:
“What injury or medical condition does the worker have?”
Mr Troy replied:
“He has symptoms which may relate to a degenerative disc at L4/5, L5/S1 and he has bilateral pars defect at L5/S1. Medical history and examination are consistent with that.”[28]
[28]Exhibit 6, DCB 28
48 When asked:
“In your clinical opinion what has caused the worker’s injury or medical condition?
Mr Troy replied:
“I consider it is constitutional. The nature of his work he has described has not given him his pars defect and there is no clinical evidence that he has degenerative discs in his lumbar spine. His movements at this examination were similar to when he was seen in September 2011 – indicating that he has no major clinical problems in his back.”[29]
[29]Exhibit 6, DCB 29
49 Further, when asked whether his medical condition was an aggravation of a pre-existing condition, Mr Troy stated:
“Work may have caused him temporary symptoms and he has fully recovered from that and he would have done so within a matter of weeks of leaving work – as he did apparently on either 18th of 19th May 2011.”[30]
[30]Exhibit 6, DCB 29
50 Importantly, Mr Troy was asked the following:
“If the worker has had similar or the same symptoms, a similar or the same injury or medical condition in the past or a pre-disposition to an injury or medical condition, in your clinical opinion how has the worker’s employment affected those symptoms, the injury or medical condition or the pre-disposition?
To which he replied:
“Made them obvious.”[31]
[31]Exhibit 6, DCB 29
51 Further, Mr Troy stated:
“He is not fit for pre-injury duties of industrial type work, taking into account that he has that underlying pars defect.”[32]
[32]Exhibit 6, DCB 29
52 Further in his report, Mr Troy stated:
“He has some underlying pars defect there and that may be the reason why he has symptoms and that has not been caused or aggravated by the nature of the work he was doing back in May 2011.”[33]
[33]Exhibit 6, DCB 31
53 Consistent with this opinion, he stated:
“He has no ongoing entitlement to medical or like services, as he does not have a work related condition.”[34]
[34]Exhibit 6, DCB 31
54 Given that earlier in his report Mr Troy had stated that the work had made the symptoms “obvious”, which I infer means “rendered them symptomatic”, it is significant, in my view, that Mr Troy has not taken a history as to when those symptoms were made obvious, either ceased, or were taken over by the pre-existing underlying condition.
55 Senior Counsel for the defendant also tendered in evidence the clinical notes from the treating general practitioner from 29 January 2011 to 8 October 2015.[35]
[35]Exhibit 9
56 On 29 January 2011, the plaintiff gave the following history:
“2 month[s] ago arrive[d] in Australia / depress[ed], father and brother killed epogatrium (scil epigastrium) pain chest pain palpatation (sic) constipation back pain.”[36]
[36]Exhibit 9, DCB 42FF
57 Examination recorded:
“Abdominal tenderness.”
58 Under “Reason for contact”, it is recorded:
“Depression.
GOR (Gastro-oesophageal Reflux).”[37]
[37]Exhibit 9, DCB 42FF
59 The plaintiff was then prescribed Temazepam, Cymbalta and Panamax.
60 The next attendance was on 1 February 2011, where there was a review of various unrelated blood tests.
61 The plaintiff was then seen on 8 February 2011, 10 February 2011, 18 February 2011, 21 February 2011, 11 March 2011, 18 March 2011, 21 April 2011 and 23 May 2011, all for essentially psychological complaints. It was also noted he had been referred to psychiatrist, Dr Geoffrey Hogan, on 18 March 2011.
62 Thereafter, on 15 June 2011, a history is taken of back pain and a prescription for Panadol Osteo is added and an x-ray of the lumbosacral spine is ordered.
63 Further, on 21 June 2011, there is another complaint of back pain with a history that the plaintiff had injured his back at work and was going to claim. On this occasion, he was referred to Mr Drnda, as already recorded, and it was noted he was still suffering from Depression.
64 There was a consistent history taken on 23 June 2011 and it was recorded the plaintiff was suffering from back pain and leg pain for both legs and there was a prescription of Mobic added. A further consistent history was taken on 25 June 2011 with increasing back pain and leg pain.
65 Thereafter, there is a consistent history of ongoing back pain and in particular, on 1 July 2011, following his examination by Mr Drnda, the general practitioner has noted:
“… he saw neurosurgeon yesterday he did not understand because there was no interpreter
still back pain.”[38]
(sic)
[38]Exhibit 9, DCB 42AA
66 In my view, this may reflect back on the opinion provided by Mr Drnda already referred to.
67 In any event, there is then a consistent history recorded by the general practitioner of ongoing back pain with prescriptions of Celebrex and Tramal, and Panadol Osteo at various times.
68 On 14 April 2012, another general practitioner at the plaintiff’s clinic, Dr Westmore, has recorded, inter alia:
“… using Panadol Osteo, tRamal (scil Tramal) for pain, … injured back lifting at S[u]per Metal Recycling, Ct L5 aprs (scil pars) defect.”[39]
[39]Exhibit 9, DCB 42W
69 Dr Westmore repeats that diagnosis: to wit “bilateral L5 pars defect” on 15 June 2012 whereas Dr Hamimi, on 11 July 2012, records it as “back pain”.[40]
[40]Exhibit 9, DCB 42V
70 By 3 and 8 April 2013, Dr Westmore is recording a diagnosis again of bilateral L5 pars defect but is also recording Chronic Pain Disorder and Adjustment Disorder.[41]
[41]Exhibit 9, DCB 42Q
71 The plaintiff is then referred to another neurosurgeon, Professor Richard Bittar, on 13 May 2013.[42]
[42]Exhibit 9, DCB 42P
72 By 25 March 2014, Dr Westmore is recording the diagnosis as “Chronic Pain Disorder”[43] compared to his notation on 25 February 2014 as “bilateral L5 pars defect”.[44]
[43]Exhibit 9, DCB 42L
[44]Exhibit 9, DCB 42L
73 The treatment regime from the general practitioner continues virtually unabated thereafter, with prescriptions including Brufen, Tramal et cetera, together with Endep.
74 On 18 December 2014, Dr Westmore records the diagnosis as “bilateral L5 pars defect” but on occasions it is interposed with “Chronic Pain Disorder” and sometimes with the additional diagnosis of “Depression”,[45] for example on 16 March 2015.
[45]Exhibit 9, DCB 42E
75 Defence counsel have also tendered in evidence two medical reports from a treating psychiatrist, Dr Geoffrey Hogan, dated 23 May 2011 and 18 August 2011.[46] Dr Hogan reported to the treating general practitioner one day before the workplace injury. On that occasion, the plaintiff gave a history of:
“… a sense of something sticking in his throat as well as diffuse pain, dizziness, gastrointestinal symptoms, and poor memory. … .”[47]
[46]Exhibit 5
[47]Exhibit 5, DCB 18
76 Dr Hogan further described:
“… recent affective symptoms with broken sleep and nightmares, low appetite, somewhat diminished energy, forgetfulness and impaired concentration, and a lowered mood, anhedonia, evening worsening and some tearfulness but not suicidal thoughts. He also had the sense recently that people disliked him. … .”[48]
[48]Exhibit 5, DCB 18.1
77 Dr Hogan described the assessment of the plaintiff as –
“… somewhat difficult. However, he appears to have suffered with post traumatic stress disorder with depressive symptoms and panic as prominent components. He appears to have responded very well to a quite small dose of amitriptyline in the past, probably together with clonazepam. … .”[49]
[49]Exhibit 4, DCB 18.1
78 On 18 August 2011, Dr Hogan reported back to the general practitioner after review. The plaintiff told him that:
“… he was sleeping better on the regime of Endep 10mg at night. He had ceased escitalopram (Cymbalta) which [he] had [been] prescribed.”[50]
[50]Exhibit 4, DCB 20
79 There was no mention in either report of any back pain or injury.
80 Finally, defence counsel tendered in evidence a Queensland Refugee Health Assessment dated 15 December 2010.[51] As at that date, the plaintiff was reporting a number of mental health issues, together with kidney problems, poor nutrition in detention and “neck and shoulder pain”.[52] There was no mention of any back pain.
[51]Exhibit 1, DCB 3 – 12
[52]Exhibit 1, DCB 5
81 For completeness, the treating general practitioner had recorded back pain on 29 January 2011 of which the plaintiff professed to have “no recollection”. In any event, such pain did not appear to result in any relevant diagnosis nor was there any treatment for same before the subject injury of this proceeding.
The Plaintiff’s submission
82 Senior Counsel for the plaintiff has identified the relevant physical injury as being aggravation of pre-existing pars defect at L5. It is postulated that this was rendered symptomatic by the heavy work performed on 24 May 2011 and has remained symptomatic since that time and provides a physical basis for the ongoing symptoms which in turn result in a total incapacity for work, or near total incapacity. It is submitted that the dismissive letter from neurosurgeon, Mr Drnda, is explicable in terms of the general practitioner’s note the following day to the effect that there was no interpreter present and that the plaintiff had not understood what had taken place.
83 In any event, plaintiff’s counsel relies heavily on the opinion of treating neurosurgeon, Professor Bittar, who was cross-examined by Senior Counsel for the defendant in this proceeding. Professor Bittar prepared three reports dated 26 June 2013, 21 August 2013 and 5 November 2013.[53]
[53]Exhibit C, PCB 50A – 54
84 In his second report dated 21 August 2013, Professor Bittar reviewed an MRI scan of the lumbosacral spine performed 31 July 2013. He reported:
“… This demonstrates desiccation of the lower lumbar intervertebral discs, with some facet joint arthropathy at L4/5. There is no neural compression. … .”[54]
[54]Exhibit C, PCB 51
85 In his third report dated 5 November 2013, on examination, Professor Bittar recorded:
“Positive findings on examination were moderate restriction of lumbar flexion and severe restriction of lumbar spine extension. Lumbar spine extension was very painful. He had bilateral lower lumbar paravertebral tenderness. … .”[55]
[55]Exhibit C, PCB 52
86 A CT scan and an MRI scan taken on 4 April 2013 and 31 July 2013 both demonstrated bilateral pars defects at L5 and or facet-joint arthropathy at L4-5. These conditions led to a diagnosis of “aggravation of lumbar spondylosis”. Professor Bittar considered that the injury at work in mid June 2011 had been a significant contributing factor to that injury and at that time, he had a zero capacity for work.[56]
[56]Exhibit C, PCB 53
87 Under cross-examination, Professor Bittar conceded that any pain in the leg was not “covered by a typical dermatomal pattern” as found by Mr Drnda.[57] He was then asked whether a “pain syndrome” would produce such findings. He replied:
“A radicular pain just means that the pain is coming from a nerve root and it runs in that distribution but back pain can radiate to the leg from other structures that wouldn’t cause radicular pain, for example facet joint pain. He has facet joint changes on his scans and so the pain radiating more diffusely into his leg could easily be coming from the facet joints. … .”[58]
[57]Transcript (“T”) 34, L18 – 19
[58]T34, L21 – 27
88 Further, Professor Bittar considered that the findings on examination by Mr Drnda were consistent with his findings in 2013.[59] He also agreed with Dr Samantha Kennedy’s opinion that the pars defect was either congenital or longstanding.[60]
[59]T35, L14 – 15
[60]T35, L29 – 30
89 On being asked specifically whether there was any element of anxiety or emotional upset, Professor Bittar replied:
“I didn’t note that and often I would. A lot of patients with chronic pain would be anxious, that’s pretty common, but I didn’t make a specific note about anxiety in my reports, no.”[61]
[61]T36, L2 – 5
90 Professor Bittar was then cross-examined on the opinions of Mr Charles Flanc, vascular and general surgeon.[62]
[62]Exhibit 10, PCB 64 – 80
91 Senior Counsel stated:
“Well, I will take you to what Dr Flanc said. If he expressed the opinion – this is 72 of the plaintiff’s court book – ‘His English [is] poor, and the non-organic component of his lower back pain is significant’, and he thought, realistically, he had no current work capacity, and then in a report of October this year he expressed the opinion – this is 76 – ‘He walks easily without a limp. He undressed easily at this interview, and I noted he could stand on each leg when he took his trousers off. This was in contrast to the previous examination’, and then he does an investigation.
And his diagnosis at 78 was, ‘The injury which occurred in May was probably soft tissue back strain, an aggravation of a pre-existing degenerative condition. The CT scan shows a pars defect. It’s quite possible that his current symptoms are to a minor extent influenced by the physical injury sustained, chronic soft tissue, possibly aggravation’.
And then he expresses the view at paragraph 2 on the next page, 79, ‘I consider that he developed a significant chronic syndrome as a result of this injury. The chronic pain syndrome is sensitisation of the pain pathways. In my view, a significant component of his back pain is caused by non-organic factors, partially involving a chronic pain syndrome and partially amplification of his pain for other reasons’?”[63]
[63]T36, L12 – T37, L6
92 In reply, Professor Bittar stated:
“He’s a vascular surgeon, …
… So, I don’t think a vascular surgeon would really know much about spinal pathology. That’s my first comment about that. Because a lot of what you’ve read out to me doesn’t make sense from a clinical perspective. I’m not sure that this is a soft tissue injury. I don’t agree that that’s the case. I think it’s more likely to be an injury that’s affecting the joints of the spine. So I disagree that it’s necessarily a soft tissue injury in this case. I don’t see what the - I think when you’re talking about central sensitisation and chronic pain syndrome, that’s not a non-organic presentation. There are very real changes in blood flow and function of the brain that can occur in these patients if you image them and it’s very clear that there is an underlying organic basis to a lot of the reorganisation of the pain pathways that occurs. … .”[64]
[64]T37, L8 – 24
93 Further, Professor Bittar stated:
“… So I think that simply because central sensitisation occurs and because someone develops some sort of chronic pain syndrome, or pain syndrome, or whatever the other doctors are calling it, that does not necessarily mean that there’s no underlying organic basis to it. It just means that the problem has gone from just being a problem with the structures of the spine to now also being a problem with the brain as well.”[65]
[65]T37, L28 – T38, L4
94 Further, Professor Bittar did not consider the presentation to be partially due to an emotional state. He stated:
A:“… He presented in a way that suggested that he had a significant back problem. I didn’t form the view in my two interactions with him that there was a major non‑organic component to his presentation. But in any patient that has a chronic pain issue, such as this man, you would expect there to be a degree of anxiety, you would expect there to be a degree of emotion in their presentation, and that may impact upon their presentation. Certainly, I can see that.
Q: But you saw nothing of that?‑‑‑
A:I didn’t form the view that that was the major part of his presentation.”[66]
[66]T38, L10 – 19
95 Further, Professor Bittar noted that Mr Drnda had not made any finding about flexion or extension of the lumbar spine which he himself considered significant.[67]
[67]T41, L5
96 Finally, Professor Bittar stated:
“So Dr Drnda didn’t perform an adequate enough examination to be able to make the diagnosis that I think was the correct diagnosis. He didn’t examine his – whether he could bend forwards or lean backwards, because that aspect of the examination is fairly important if you are trying to figure out whether this is likely to be a disc problem or whether it is likely to be a facet joint problem. That can really assist in helping to guide you as to whether there is a problem there, and if you don’t examine those things I think just making a blanket comment that someone moved freely or easily, just watching them walk in and sit down, that’s not very useful if you’re trying to make a diagnosis and trying to offer treatment.”[68]
[68]T41, L22 – T42, L3
97 Finally, Professor Bittar stated that although he had not seen the plaintiff for two years, if his condition was similar to when he saw him, then he would expect that he did not have any realistic work capacity.[69]
[69]T42, L25 – 27
98 In re-examination, Professor Bittar gave the opinion that he did not see that there was likely to be any improvement in the plaintiff’s work capacity after the time that he had seen him.[70]
[70]T44, L9 – 10
99 When asked what was the significance of a finding of restriction of lumbar flexion and severe restriction of lumbar spine extension, Professor Bittar stated:
“The significance of that finding is that it makes it more likely that his pain is emanating from the facet joints, which is significant because it means that he wouldn’t be expected to have impairment of straight leg raising, he wouldn’t be expected to have neurological deficits, but he may - and he wouldn’t be expected to require surgery. So they’re the three key things that are related to that.”[71]
[71]T44, L13 – 25
Conclusions
100 Having seen the plaintiff and Professor Bittar cross-examined, I am of the view that Professor Bittar’s diagnosis of aggravation of lumbar spondylosis, particularly a pars L5 defect, has rendered that area of the spine symptomatic and thereafter resulting in near total incapacity for work which subsisted at the time he was examined in 2013 and continuing thereafter, as evidenced by the consistent treatment from the general practitioner.
101 I consider that this opinion is corroborated by the defendant’s evidence from Dr Samantha Kennedy[72] to the effect that on examination:
“Extension was limited because of pain”.[73]
[72]Exhibit 4
[73]Exhibit 4, DCB 16
102 Further, Dr Kennedy states that it is the pars defects on imaging that appear to be the area “where most of [the plaintiff’s] pain resides”.[74]
[74]Exhibit 4, DCB 17
103 I also consider that Professor Bittar’s opinion is corroborated by the report of Mr Michael Troy dated 5 July 2012[75] to the effect that the workplace injury rendered symptomatic the bilateral pars defect at L5-S1 and there being no evidence thereafter of remissions from the aggravation, a finding of permanent aggravation is well open. I do not accept Mr Troy’s opinion that the condition is no longer work related as there is no evidence that there has been recovery from that aggravation.
[75]Exhibit 6
104 Accordingly, I find that the plaintiff is suffering from a permanent aggravation of underlying degenerative change to his lumbar spine which has resulted in near total incapacity for work and leave will be granted for him to commence proceedings at common law for economic loss.
105 Further, in accordance with the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[76] leave will also be granted for the plaintiff to issue proceedings with respect to pain and suffering damages.
[76][2009] VSCA 170
106 I will hear the parties as to any consequential orders.
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