Nastevski v VM Romano Construction Group Pty Ltd
[2012] VCC 1390
•30 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01716
| SHANE NASTEVSKI | Plaintiff |
| v | |
| VM ROMANO CONSTRUCTION GROUP PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 and 27 July 2012 | |
DATE OF JUDGMENT: | 30 August 2012 | |
CASE MAY BE CITED AS: | Nastevski v VM Romano Construction Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1390 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Lumbar spine injury – Chronic Adjustment Disorder
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(38)(a) and (c)
CASES CITED – Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Richards v Wylie (2000) 1 VR 79; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis & Ors [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) VTAC 72396, (1995) 21 MVR 314
JUDGMENT – Application under part (a) refused. Application under part (c) granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Novatsis & Alexander |
| For the Defendant | Mr P Jens | Herbert Geer |
HIS HONOUR:
1 In this application, Mr Fehring appeared for Mr Nastevski and Mr Jens appeared for the defendant. The applicant's solicitors received a letter dated 7 April 2011 indicating a negative determination of the plaintiff's application for a serious injury certificate, Exhibit A.
2 On 14 April 2011, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to be granted to issue proceedings for damages.
3 The plaintiff was born on 20 December 1971 and is aged forty. He was aged thirty-three at the time of the alleged injury. At the time, he alleges he was in good health, had no restrictions and could carry out labouring duties without difficulty.
4 Mr Fehring, in opening, advised that the application concerned two serious injuries pursuant to the definition contained in s134AB(37) of the Act:
(i) pursuant to part (a), a permanent serious impairment or loss of body function, which he identified as the relevant body part being the lumbar spine; and
(ii) pursuant to part (c), a permanent severe mental and/or permanent severe behavioural disturbance or disorder, which he identified as a Chronic Adjustment Disorder.
5 Mr Jens, on behalf of the defendant, indicated that liability was denied and maintained, as to both alleged injuries, the plaintiff would fail to satisfy the narrative tests under both headings of the definition.
6 Mr Fehring, as to consequences, relied upon both as detailed in s134AB(38)(b) of the Act as to both alleged serious injuries.
7 Insofar as the law relevant to such determination as to part (a) is concerned, the Court is now assisted by the application of ss(38)(b) and (c), and as to part (c), by ss(38)(b) and (d), being a statutory recognition of the principles expounded by the Supreme Court, as it then was, in the Appeal Division, in Humphries v Poljak [1992] 2 VR 129, 140, and further by ss(38)(e), (f) and (g) insofar as the determination of loss of earning capacity is concerned, and generally by ss(19)(a) and (b).
8 The Court continues, of course, to be assisted in such determinations by the general principles exposed in Humphries v Poljak and in Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357. Section (38)(h) has amended the common law as expounded in Richards v Wylie (2000) 1 VR 79; however, the textual division is still important to consider as expounded in that case.
9 The effect of section (38)(h) is to remove reality from the comprehension of an injury and make identification of the consequences of the injury suffered a more difficult task as it excludes from consideration a natural consequence of a physical injury. However, having said that, so be it. That is the edict of Parliament.
10 At page 222 of the transcript, although not opened as such, Mr Fehring accepted that the case as presented as to part (c) was an aggravation case, hence the process identified by the President of the Court of Appeal in R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, as identified at paragraph 2 thereof, where there was a reference to Petkovski v Galletti [1994] 1 VR 436 is to be adopted.
11 While I assume it is not necessary to state, one of course understands the definition of “injury” relevant to those cases to which I have referred do not include the word “permanent”, which has now been substituted, it previously being in the definition the word “long term”.
12 In this case, of course, involving the part (c) application, the relevant law is as set out by the Court of Appeal in Mobilio v Balliotis & Ors [1998] 3 VR 833, 836, but in particular at 846 in the judgment of Brooking JA, where he makes the determination without suggesting the use of any particular adjective to mark the distinction. He said:
“I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
13 Also relevant of course to part (c) applications, albeit the majority were incorrect insofar as the appropriate test in Turner v Love & Transport Accident Commission (1995) VTAC 72396; 1995) 21 MVR 314, are the principles set out therein which are still relevant in assessing such injuries, in particular as to the issue of consequences and the need for a court to look at the consequences of a psychiatric or mental illness or disability insofar as they include the need for treatment, its type, its frequency, any past and future potential side effects and principal long-term consequences, those matters being referred at page 77224.
14 The plaintiff swore two affidavits, Exhibits B and C. Essentially, he maintains that the injury to the lumbar spine, which occurred at the defendant's premises on 4 April 2005, has rendered him incapable of working and has grossly restricted his social activities, indeed all activities of life.
15 Mr Nastevski has no prior lumbar spine issues. However, he did have a left elbow injury when working with Vaughan Constructions in 2001. He was unable to work following that accident again until January 2005, when he in fact started with the defendant.
16 The first witness called, apart from the plaintiff and indeed interposed, was Dr Ratnavelar. She had treated the plaintiff since 1999. She treated him for the 2001 injury, and presumed he had got better from that injury on the basis of him being injured at work in 2005.
17 Dr Ratnavelar gave evidence that the plaintiff made no progress following the injury in 2005; that from that time he in fact got worse; that he had not been treated in any less than a conservative nature due to his psychiatric reaction to the physical injury; that he had indeed made no progress; that he now effected an antalgic gait; that he put on a lot of weight; that he was not using his muscles; that of his manner, he had become rude, aggressive and agitated; and she described that generally he had the capacity to make everyone around him unhappy.
18 As to the physical injury, Dr Ratnavelar indicated that she had prescribed both Mobic for the back pain and OxyContin, an opiate, for pain. As to his Pain Syndrome, Chronic Pain Syndrome, Adjustment Disorder, or however such is identified, she had prescribed Cipramil and Deptron, anti-tricyclic drugs. In her evidence to this Court, she confirmed the opinion expressed in the exhibits tendered, being Exhibits D1 to 6, that Mr Nastevski had no capacity to work.
19 It would appear from Exhibit D2 that the plaintiff, as a result of the injuries which occurred in 2001, developed depression and anxiety due to his subsequent unemployment, and required extensive psychological counselling. On her evidence, such counselling lasted for a period of three to four years after 2001.
20 A CAT scan in May 2005 demonstrated an L5-S1 disc bulge, and Exhibit H, a subsequent MRI scan which was ordered confirmed same, without any compromise of nerve root.
21 As a result of his ongoing reported problems, Dr Ratnavelar referred Mr Nastevski to Mr Michael Johnson, an orthopaedic surgeon. Mr Johnson reported in Exhibit M1, at page 35 of the Plaintiff’s Court Book, as to him seeing the plaintiff, that report being dated 15 July 2005.
22 Mr Johnson reported that it was difficult to see an anatomical cause of the pain and noted what he indicated to be an overreaction to the physical injury and the expression or demonstration of what he described as non-organic signs.
23 Mr Johnson saw Mr Nastevski again and reported in Exhibit M2 dated 5 February 2008, at page 37 of the Plaintiff’s Court Book. It was suggested this was a medico-legal report; however, the plaintiff saw Mr Johnson originally from a referral from his general practitioner, Dr Ratnavelar. However, as of August 2005, Mr Johnson confirmed the diagnosis of lumbosacral degeneration and had suggested a nerve block.
24 As Dr Ratnavelar indicated, and was noted by Mr Johnson, the patient, or Mr Nastevski, did not want to undergo the nerve block because he was concerned as to the risk, nor did he want to undergo a rehabilitative program. Mr Johnson, in this report, Exhibit M2, indicated that there was no basis for any operative treatment and again reported on the non-organic signs.
25 Dr Ratnavelar, in cross examination from Mr Jens, agreed that in regard to the 2001 injury, she last saw him for that injury in July 2003. At that stage, he was continuing to have ongoing problems from the 2001 injury. Dr Ratnavelar did not again see him in regard to his health until October 2005. As I said earlier, she had presumed, as he had returned to work at Romano's, that he must have been fit to resume work, although she did not have notes to that effect.
26 In fact, what the materials show is that Mr Nastevski had been certified unfit due to the injury sustained to the elbow in 2001 and the development of Post-Traumatic Stress Disorder for a period from September 2004 through to November 2004. The precise description in the certification for Centrelink benefits was left elbow, mid-thoracic pain and chronic pain. Again, certifications were tendered which show that he was allegedly suffering from those very injuries, together with Post-Traumatic Stress Disorder, after the date of the alleged accident that we are dealing with. Indeed, there were certifications for the period from October 2004 through to August 2005.
27 As to the elbow injury itself, when Dr Ratnavelar was treating Mr Nastevski she had determined, because of its chronicity, to obtain an opinion from a rheumatologist. That was Dr Buchanan, who was unable to substantiate any orthopaedic injury as the cause of the ongoing symptomatology of the 2001 accident. Indeed, it was noted that there was some pain reported at the time to him at the level L3-L4. Dr Buchanan described what he saw operating at the time as a pain amplification syndrome.
28 Dr Ratnavelar said throughout the time she had treated Mr Nastevski, there had never been a recording, until mid 2005, of any lower back pain. However, the incapacity certificates tendered refer to mid-thoracic pain.
29 It is not inappropriate to note, in the report received from Dr Buchanan, a particular letter given to the general practitioner and noted at transcript 77 was his opinion of the danger of the development of a further pain amplification syndrome by this patient into the future.
30 The particular certifications as to the chronic pain related to this earlier injury and the Post-Traumatic Stress Disorder were certified for the purposes of incapacity under the Commonwealth legislation and were tendered as Exhibit 14 by the defendant and are noted at page 299 of the Defendant’s Court Book.
31 Hence, albeit there was no actual history with Dr Ratnavelar as to the lumbar spine, Mr Nastevski had a history of an injury with allegedly, according to the medical practitioners, no discernible organic basis but with some mental trauma by way of reaction thereto and which appeared not to be getting any better.
32 Mr Jens indeed put to Dr Ratnavelar in cross examination that it would have been almost a miracle if he was fit enough, given that history in regard to the 2001 injury, to resume work as at January 2005. Indeed, the general practitioner said, as she understood his condition, that was true.
33 He was also referred to a Mr Davis, a neurosurgeon, who in a report to Dr Ratnavelar as of 14 October 2005, noted “marked pain behaviour”.
34 Mr Davis determined that there was no nerve root compromise. He had in fact looked at the MRI, to which I have referred, which showed mild degenerative change at L5 to S1. It noted that he had previously been a builder's labourer.
35 Mr Davis, in regard to the clinical pain reported, suggested that what was needed insofar as this injury to the lower back was a pain management program. The general practitioner indicated that again Mr Nastevski did not wish to undergo such program.
36 Dr Ratnavelar said she had also received a letter from Mr Davis, and this matter was put to her by Mr Jens at transcript 92. The letter was dated 14 October 2008. It is noted that in that letter, Mr Davis said, “The most striking feature is the lack of change, that is to correlate with the severe symptomatology”; that is, insofar as his observations of the x-rays, the mild degenerative change in no way correlated with the severe symptomatology reported.
37 Mr Wilde, orthopaedic surgeon, reported to the treating general practitioner in March 2006 non-organic illness behaviour: Exhibit L2 at page 27 of the Plaintiff’s Court Book. He noted the robotic gait then adopted by Mr Nastevski and the stiff lumbar movements. Mr Wilde perceived no neurological signs and, as an orthopaedic surgeon, said there was nothing to offer.
38 Mr Wilde’s most recent report, Exhibit L5 of June 2007, in particular at pages 33 and 34 of the Plaintiff’s Court Book, recommended pain management to be undertaken at the Epworth, and reported significant superadded psychiatric disorder. Indeed, Mr Wilde ruled out organic based pain, and his opinion was that there was no reason at that stage why Mr Nastevski could not undertake work which involved light duties or of a sedentary type nature.
39 As the general practitioner reported, Mr Nastevski was not prepared to go to a pain clinic. Dr Ratnavelar therefore was left in a position where she had to treat him. Her evidence to this Court was that Mr Nastevski continued to get worse; that he effected bizarre symptomatology. Indeed, this was identified by me during the hearing, not only from the manner in which he approached the witness box but, as I reported, I had been looking out of my chamber’s window and saw him arrive at Court and act in exactly the same manner getting out of the car and utilising his father to be able to walk.
40 It was appropriate for me to put that observation to the Court. I did while the general practitioner was being cross examined. Dr Ratnavelar noted the correctness of such observation and replied at transcript 49 as follows in regard to the issue of bizarre symptomatology, “That he is pathetic to look at, a young fellow like this, it’s a waste of a life”" Mr Nastevski, she said, needed a psychiatrist to treat him, but he would not go. Hence, as she said at transcript 50, she just manages him.
41 Mr Jens put to her that well, as it happened in 2001, here we have again post this alleged physical injury in 2005, a mental reaction to a minor physical injury. Mr Jens, essentially in his questioning of the general practitioner, was asking her whether she believed Mr Nastevski. Dr Ratnavelar was adamant that she had no reason to disbelieve him and indeed said, in effect, she trusted the patient (transcript 94).
42 If I read from the transcript, she was asked this at 94:
Q:“Well, he's obviously saying he's experiencing pain.
A:We can see also he's experiencing – we can – there is component of pain, but we don't know how much is related to the actual injury and plus what is called in his brain is working that he's experiencing – some people can experience pain without having to have any kind of physical component to it.”
43 In re-examination from Mr Fehring, the general practitioner said, in her opinion, Mr Nastevski would not improve; that is, he was stabilised; that, as she observed, he had got worse over the last six years; that he was totally unfit, consistent with her description of him as pathetic; totally unfit for work and most social activities. I should say Dr Ratnavelar was not in any way being disrespectful of her patient, but simply describing his current state.
44 The cross examination of the plaintiff was finalised, after the evidence of the general practitioner; that is, Dr Ratnavelar, had been interposed. It was put to the plaintiff that at the time that he was working with the defendant, and indeed at the time he was injured in April 2005, that he was actually being paid Centrelink benefits, and in order to receive such benefits had lodged the capacity certificates that I have earlier referred to for the period February 2005 through to May 2005: see Exhibit 14.
45 As a result of that question and my concern as to him implicating himself, ultimately I gave the plaintiff certificates under s128 of the Evidence Act 2008 (Vic) and s128 of the Evidence Act 1995 (Cth) insofar as any answers he provided voluntarily to Mr Jen’s questions in this regard.
46 When the matter was then put to Mr Nastevski under cover of such certificates, his answer was simply that he was unaware of such applications and that he could not remember them. It is clear that such benefits were being received after the date of injury and indeed after he had left the employment by way of allegedly being injured at the defendant’s premises.
47 Then it was put to Mr Nastevski that somewhere along the line there has to be a lie, either the certificates were correct, or if they were incorrect and he was fit to work, then the certificates were false. His answer was simply that he was fit enough to resume work in January 2005, did so and worked until he was injured in April 2005.
48 This Court of course is not concerned with issues as to Commonwealth benefits. It appears certainly from the evidence, and there is no challenge, that Mr Nastevski was hired in January 2005 and that he worked throughout the period until the date of alleged injury as a labourer. Such would appear obviously to be incompatible with the alleged incapacity certificates tendered.
49 Insofar as the claim as to consequences being made by the plaintiff in this matter, Mr Fehring said that, as to the loss of earning capacity consequences, it is an all or nothing proposition; that is, given his actions, he cannot satisfy s134AB(f) or (g) as he has made no attempts by way of rehabilitation, nor has he sought any employment.
50 There is, as I have described, limited support of the treating specialists as to the part (a) injury, and I refer to my earlier references to Doctors or Messrs Wilde, Johnson and Davis. Overwhelmingly in those reports is found reference to the influence of a non-organic reaction.
51 The plaintiff also relies in support of the part (a) application upon the medico-legal reports of Mr Ian Jones, Mr Dooley, Mr Clayton Thomas and Mr Kahn. Mr Fehring submitted that the injury to the spine at level L3-L4 is not an aggravation and that on the totality of the medical evidence, that I should find that the consequences of this are such, in regard to the alleged part (a) injury to the back, as being as to satisfy the narrative test.
52 A close analysis of those medico-legal reports however demonstrates, I find, that the focus of consequence emanates from the alleged part (c) injury; see Winneke P in Richards v Wylie (supra) at [16] to [17], as to the need for focused and textural distinction in these applications.
53 Mr Ian Jones, orthopaedic surgeon, provided a medico-legal report relied upon by Mr Fehring, Exhibit 9A. It was provided to the defendant's solicitors in May 2012 and is at page 134 of the Plaintiff’s Court Book. Mr Fehring relied upon the diagnosis here to support essentially a Humphries v Poljak type case; that is, that the diagnosis, in particular see paragraph 10(c), is sufficient to found a light work back part (a) injury.
54 Mr Jones, on the history provided, diagnoses that the employment had caused a lumbosacral disc disruption with back pain and restriction with, I emphasise, inconsistent neurological and x-ray findings. He considered such injury to be significant in terms, again I emphasise, of some of his back complaints and disability. Mr Jones considered that only conservative treatment was appropriate, as he considered Mr Nastevski to be exaggerating his limitations. He said that Mr Nastevski would never return to heavy duties and that such incapacity was permanent.
55 Mr Dooley again saw the applicant once only: see Exhibit F, the medico-legal report of April 2010 at page 13 of the Plaintiff’s Court Book. Under examination, there were marked symptoms of lumbosacral difficulty. They were so marked as to eliminate, as far as the practitioner was concerned, accurate assessment of his injury. There was no radiculopathy, and circulation was normal.
56 Mr Dooley diagnosed an injury to the lumbar spine, being an aggravation of degenerative change at that area with a small disc prolapse. However, significantly he said this, “His major problem [is] the development of depression, which is secondary to a physical injury [producing] abnormal illness behaviour”. Also significantly in Mr Dooley's opinion was that such abnormal illness behaviour was not conscious.
57 Dr Clayton Thomas, a rehabilitation specialist, also reported, in September 2010, that the clear diagnosis he found was one of Chronic Pain Syndrome: see Exhibit G, Plaintiff’s Court Book at pages 17 to 19. He was not provided with any prior history of such a syndrome. Dr Clayton Thomas's words are significant in this case. Dr Thomas said, “His organic injury is however dwarfed by the non organic components”.
58 Mr Kahn, orthopaedic surgeon, also reported in February 2010: see Exhibit K, Plaintiff’s Court Book at pages 20 to 24. Mr Kahn's evidence could perhaps be seen as the strongest support of the plaintiff's part (a) case. He confirmed the view of Mr Jones of a severe musculoskeletal injury, but significantly, in his opinion, to the thoracolumbar region. He noted the disc prolapse at L5-S1 and confirmed the view that what had happened was there had been aggravation of pre-existing degenerative change.
59 Mr Khan described Mr Nastevski as being physically disabled for work and to be restricted in regard to work in regard to bending, lifting, standing or walking. He described Mr Nastevski as, as a result of the injuries, having now a light work back with restrictions. However, again he noted non-organic symptoms.
60 Analysing all of the evidence both of the treaters, the general practitioner and the medico-legal reports, I am not satisfied that the plaintiff has satisfied the onus to prove that the physical consequences of the injury to the lumbar spine constitutes a serious injury. I am confirmed in such opinion by the evidence tendered by the defendant, being the reports of the orthopaedic surgeon Mr Weaver, Exhibit 4B, Defendant’s Court Book at page 81, who concludes that the organic pathology is, in itself, not sufficiently severe to justify the unusual presentation of the symptoms demonstrated by Mr Nastevski; and further, by Dr Karma, rheumatologist, Exhibit 10, Defendant’s Court Book at page 146, who also concluded the presentation was amplified and exaggerated, having regard to the organic back discomfort present; and further, by the report of Mr Nye, neurosurgeon, which confirms those opinions: see Exhibit F.
61 I therefore formally refuse the part (a) application.
62 Coming then to the part (c) application, despite what Mr Fehring said as to the aggravation principles being applicable here, I find that what the evidence demonstrates is that Mr Nastevski has a propensity to develop anxiety, depression and pain amplification consequent upon the development of physical injury as demonstrated from the 2001 injury whereby he required extensive psychological counselling thereafter.
63 This capacity developed subsequent to the injury in 2001; see in particular the evidence of the general practitioner in cross-examination to which I have referred, in particular Exhibit D2, and also the report of September 2002 of Dr Buchanan, the rheumatologist, who reported to Dr Ratnavelar the development of pain amplification syndrome: see Exhibit 13, Defendant’s Court Book at 256. He opined that, having developed such a reaction once, it would recur.
64 As such, in my view, the aggravation principles are not relevant in this application. This is an eggshell skull situation.
65 The evidence of the treating general practitioner, Mr Dooley, Professor Mendelsohn and Dr Duke is to the effect that there is no conscious exaggeration in this case. As I have said, the general practitioner described Mr Nastevski in cross-examination as pathetic in response to my question as to the bizarre symptomatology that I had observed both outside the Court and when he approached the witness box.
66 Dr Clayton Thomas, consultant in rehabilitation and pain management, states that Mr Nastevski presents as a tragic figure and describes him as having “an enmeshed chronic pain syndrome accounting for what appears to be a severe deconditioned man, with significant psychological and psychiatric problems”: see Exhibit G, Plaintiff’s Court Book at pages 17 to 19.
67 Mr Michael Epstein, psychiatrist, in a medico-legal report, fully analysed all of the medical reports: see Exhibit O1. I should say there were numerous medical reports in this case which the Court also has read. Mr Epstein concluded there was no evidence of delusions; that as a result of the injury sustained at the plaintiff's premises in April 2005, Mr Nastevski had developed a Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood by way of a Chronic Pain Disorder subsequent to his general medical condition.
68 At page 54 of the Plaintiff’s Court Book, Mr Epstein goes on to say:
“His quality of life has diminished markedly, affecting his work capacity, his relationships and his recreational enjoyment. His condition is stable and prognosis is poor. He has had no psychiatric treatment since his injury and it is unlikely that any such treatment will lead to any significant improvement in his condition.”
69 Mr Epstein was asked for a further report specifically as to the effect of the above as to work capacity: see Exhibit O2. He replied in June 2012 as follows:
“Mr Nastevski's psychological condition, specifically his chronic pain disorder and chronic adjustment disorder, with mixed depressed and anxious mood, make him unfit for work at present and into the foreseeable future.”
See Plaintiff’s Court Book at page 55.
70 Dr Cole, another psychiatrist, totally supported such opinion: see Exhibit P, a report of May 2011 in the Plaintiff’s Court Book at page 59.
71 Albeit tendering the psychiatric reports of Professor Ivor Jones, Dr Duke and Professor Mendelsohn, Mr Jens’ major attack was on the credibility of the plaintiff in his submissions. Mr Jens submitted there was no psychiatric treatment apart from the management effected by the general practitioner and the medications that she prescribed.
72 Mr Jens submitted that the prior histories that this plaintiff has given to the medical practitioners, in particular the failure to refer to his earlier mental reaction to physical injury, were, he described, dishonest; and that the plaintiff was dishonest, as ably demonstrated. He submitted, by the certificates lodged whereby he obtained Commonwealth benefits, and that the consequence in regard to the plaintiff, was such that I should simply not believe him. In that regard, Mr Jens put to the Court a question: is this abnormal behaviour simply feigned and totally consistent with the dishonest person who was before the Court?
73 I have considered the defendant's medical reports, albeit that Mr Jens did not concentrate on them. Professor Mendelsohn's report of July 2012 is adamant that the plaintiff, Mr Nastevski, suffers from what he described as "learned pain behaviour" and, after a comprehensive analysis similar to that undertaken by Mr Epstein of all and the numerous medical reports and on the basis of a recent re-examination of Mr Nastevski, he concluded, at Defendant’s Court Book page at 59, the following:
“There is no basis for the diagnosis of a specific mental disorder involving either a clinically significant depression illness or any type of anxiety disorder.”
74 Dr Duke, initially in his first report of October 2006, Exhibit 7A, failed to make any formal psychiatric diagnosis, but pointed to the plaintiff's self belief as an invalid: see the Defendant’s Court Book at page 110. However, upon further re-examination in 2011, Exhibit 7B, Dr Duke concluded that Mr Nastevski did in fact satisfy a diagnosis of undifferentiated somatoform disorder which was not feigned, in his opinion, nor intentionally produced.
75 The final reports of a psychiatric nature were from Professor Ivor Jones: Exhibits 6A and 6B. His report, albeit in 2008, had noted the initial reports of both Professor Mendelsohn and Dr Duke in which they had failed to ascertain in their opinions or to discern a psychiatric illness or Anxiety Disorder.
76 Mr Jones, however, found significant psychological elaboration and augmentation of the physical disability resulting in gross invalidism. He concluded that such a circumstance was a gross example of abnormal illness behaviour. He concluded such condition was stabilised and permanent, with rehabilitation likely to be very difficult: see the Defendant’s Court Book at page 97.
77 I must admit that it is difficult not to be concerned when one observes the bizarre manifestations demonstrated by Mr Nastevski as I have said, either when getting out of the taxi, of which I reported to this Court, or in proceeding to the witness box and as referred to by all of the practitioners.
78 I also have regard to Mr Jens' submission as to the credibility in this matter, in particular, concerning what Mr Jens said should be seen as the apparent dishonesty insofar as Mr Nastevski’s welfare claims are concerned.
79 However, in considering all of the medical evidence, together with the strong support of the plaintiff expressed by Dr Ratnavelar and Mr Epstein, upon the balance of probabilities, which is the onus borne, I conclude that subsequent to the work injury in April 2005, and as a result of such injury, the plaintiff developed a permanent mental or permanent behavioural disturbance or disorder described by the medical practitioners as a Chronic Adjustment Disorder with Mixed Anxiety and Depressive Mood which has so enmeshed the plaintiff that it has rendered him an invalid so that the consequences of such injury have had a deleterious impact upon the plaintiff's life, causing him pain and suffering and loss of enjoyment of life and total pecuniary loss of earnings and, upon assessing such consequences objectively, I find that the totality of each of such consequences as to pain and suffering and pecuniary loss can be each classified as severe in the sense as defined by Brooking JA in the case of Mobilio.
80 I therefore grant leave to issue proceedings to Mr Nastevski for damages for the part (c) injury sustained at the applicant's place of employment on the 4 April 2005.
81 Formally, therefore, I refuse the application of part (a) and I grant the application under part (c).
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