Noonan v Freeman
[2017] VCC 840
•26 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-06162
| BENJAMIN NOONAN | Plaintiff |
| v | |
| DEREK GEORGE FREEMAN (TRADING AS DEREK FREEMAN INTERIORS PTY LTD) | First Defendant |
| AND | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 and 31 May 2017 | |
DATE OF JUDGMENT: | 26 September 2017 | |
CASE MAY BE CITED AS: | Noonan v Freeman | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 840 | |
REASONS FOR JUDGMENT
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Subject:“Serious Injury” Application Pursuant To S134AB of the Accident Compensation Act 1985
Catchwords:
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr S Jurica | Adviceline Injury Lawyers |
| For the Defendant | Ms G Cooper | Wisewould Mahoney Solicitors |
HER HONOUR:
1 Mr Benjamin Noonan (“the plaintiff”) has applied, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), for leave to commence proceedings to recover damages for both pain and suffering and pecuniary loss for injuries sustained in an accident in the course of his employment with Derek George Freeman (“the defendant”) on 30 July 2009.
2 The plaintiff relies upon paragraphs (a) and (c) of the definition of “serious injury” in s134AB(37) of the Act.
3 Under paragraph (a), the plaintiff relies upon two separate body “functions”: firstly, the left trunk, including an injury to the left chest and to the spleen and, secondly, the spine as a whole, but particularly an injury to the thoracolumbar spine.
4 Under paragraph (c), the plaintiff relies upon a mental/behavioural disturbance, which is alleged to be a Chronic Adjustment Disorder with Depressed Mood and some features of traumatisation relating to the physical injuries.
5 It is not in dispute that, on 30 July 2009, the plaintiff was performing duties as a painter in the course of his employment with the defendant. He stepped from the roof of a house onto a ladder, which had been placed against the wall of the house. As he did so, the ladder slipped from under him and he fell approximately 3 metres and landed on his left side on the timber decking below (“the incident”).
6 In response to a claim by the plaintiff for impairment benefits relating to the incident, the WorkCover insurer, by letter dated 2 October 2012, accepted liability for the following injuries:
“• Apical left-sided pneumothorax and sympathetic left-sided pleural effusion, relevant to the claimed lung injury
•Soft-tissue injury to the thoracolumbar spine, relevant to the claimed back injury
• Spleen
• Surgical scarring
•Specific Phobia, relevant to the claimed psychiatric (sic) (anxiety & depression).”[1]
[1]Plaintiff’s Court Book (“PCB”) 75
7 In relation to the plaintiff’s application under paragraph (a) of the definition of “serious injury”, the defendant disputes that the plaintiff’s current complaints of pain are attributable to the physical injuries sustained nearly eight years ago in the incident. The defendant submits that his symptoms are magnified by the plaintiff having developed a psychological reaction to his situation and the plaintiff is unable to disentangle the causes of his physical complaints to satisfy the court of an organically based injury to satisfy the test of serious injury. In the event that the Court was to be satisfied of the causal connection between the plaintiff’s current complaints of pain and organic injuries sustained in the incident, the defendant submits that the plaintiff has the capacity for alternative duties to his pre-accident employment as a painter. The defendant submits that the plaintiff’s capacity for suitable employment is such that he cannot satisfy the test of at least 40 per cent loss of earning capacity pursuant to the provisions of s134AB(38)(e)(f) and (g) of the Act.
8 In relation to the plaintiff’s application pursuant to paragraph (c) of the definition of “serious injury”, the defendant disputes that any psychiatric condition currently suffered by the plaintiff is caused by the incident, save for a phobia in relation to the use of ladders. In the event that the Court was to be satisfied of causation in relation to any current psychiatric condition, the defendant disputes that the plaintiff is able to prove the high test of serious injury relating to paragraph (c) in that any consequences of impairment cannot be said to be severe.
Background
9 The plaintiff is presently aged 37 years, having been born on 28 October 1979. He was born and reared in New South Wales. He completed Year 10 at school and, then, undertook a four year TAFE certificate course in painting and decorating, as well as courses in signwriting, graphic arts and interior design. He worked for approximately eight years as a painter and decorator, before he moved to Melbourne, where he commenced work with the defendant as a painter and decorator in March 2009.
10 As previously mentioned, the incident occurred on 30 July 2009. The plaintiff was taken by ambulance to the Alfred Hospital, where he remained an inpatient for five nights, before being discharged on 4 August 2009. On presentation at the hospital, a history was noted of the plaintiff falling from a roof to decking approximately 3 metres below. It was queried whether he had suffered a loss of consciousness. A Glasgow coma score of 14 was recorded. A past history of depression was noted. On the discharge summary the plaintiff’s injuries are listed as: “facial abrasions, lacerated eyebrow, L apical pneumothorax, splenic laceration with active extravasation, and abrasions lower limbs.”[2]
[2]PCB 14
11 Upon admission to the Alfred Hospital, CT scans were taken of the plaintiff’s chest, abdomen, pelvis and thoracic and lumbar spines. The scan of the chest demonstrated a small left anterior and apical pneumothorax, but showed that mediastinal structures were intact, with no evidence of thoracic aortic dissection. The lungs were clear and there were no rib fractures or sternal fractures. The scan of the abdomen demonstrated a laceration of the inferior pole of the spleen, with a large extracapsular haematoma and active extravasation of blood in the mesentery extending into the pelvis. The scan of the thoracolumbar spine showed that there was no fracture or malalignment of the thoracolumbar spine, the sacroiliac joints were normal, the pelvis was intact and the femoral heads were bilaterally enlocated.[3]
[3]PCB 24
12 The plaintiff underwent a procedure of splenic embolisation to treat the laceration to the spleen, and a large amount of intraperitoneal blood was found to be surrounding it.[4] The small left pneumothorax and small subpleural left lower lobe haematoma were treated conservatively, and the plaintiff was discharged, with advice to do only light duties at work for the next six weeks and not to undertake flying or contact sports during this time.
[4]PCB 14-15
History of treatment and employment following the incident
13 Upon a date which is unclear, following his discharge from the Alfred Hospital, the plaintiff was driven by his father to Queensland, so that he could recuperate at his parents’ home. On the way, they stopped in Sydney. In or about early September 2009, the plaintiff presented to Sutherland Hospital in Sydney because of increasing left upper quadrant pain. A CT scan was performed, which showed a 10 centimetre subcapsular haematoma and a small left pleural effusion. His haemoglobin was stable and he did not have any further episodes of bleeding, so he was discharged home.[5]
[5]PCB 17
14 In the next two weeks, the plaintiff suffered further pain in his abdomen. A CT scan was performed in Sydney on 25 September 2009. This showed that the haematoma had increased in size to 12 centimetres and there was increasing pleural effusion in his left chest.[6] On that date, at St George Private Hospital, Dr Chu performed a procedure comprising a laparoscopic division of adhesions and partial splenectomy.[7]
[6]PCB 17
[7]PCB 18
15 After arriving in Queensland, the plaintiff had a consultation on 8 October 2009 with a Dr Bhatnagar at Highlands Medical Centre in Queensland. A clinical note was made of the incident, and the fact that he was seen at the Alfred hospital where he was diagnosed with “ruptured spleen/concealed bleeding” and had a “splenectomy” done. The note states, “wishes to have CT abdomen/ chest and CXR and dressing”.[8] No subsequent notes or report from the Highlands Medical Centre have been tendered into evidence. However, in an affidavit sworn by the plaintiff on 31 July 2015 (“the plaintiff’s first affidavit”), he states that on that same date he underwent a chest x-ray and was “rushed to Robina hospital” where he had about 2 ½ litres of fluid removed and a drainage catheter inserted.[9]
[8]Defendant’s Court Book (“DCB”) 50
[9]Paragraph 14 and 15, PCB 4. See also PCB 19.
16 There are no records from the Robina Hospital. However, a report of Dr Chu, dated 3 November 2009, addressed to the WorkCover insurer, noted that the plaintiff’s latest chest x-ray looked essentially clear, but Dr Chu wished to review the plaintiff in two weeks.[10] On 17 November 2009, Dr Chu reported that the latest abdominal chest CT scan was all clear, although the plaintiff was still complaining of some dull left upper quadrant and lower chest discomfort. Dr Chu indicated that he would like to see the plaintiff in a month’s time, when he would hopefully be able to give him full clearance for work.[11] There is no further report from Dr Chu.
[10]PCB 19
[11]PCB 20
17 The plaintiff returned to work with the defendant on or about 28 January 2010. Apparently, it was a graduated return to work. By a date which has not been made clear, he managed to return to full hours performing normal duties, with the exception of going up ladders unless it was absolutely necessary.[12]
[12]Paragraph 24 of the plaintiff’s first affidavit PCB 5
18 In May 2010, the defendant had insufficient work, and the plaintiff ceased his employment. He worked for another company for about two weeks. He then moved to Sydney, where, over the next three years, he worked for five different companies as a painter and decorator. The last of these was “Pro Group”, by whom he was employed from about mid-2011 until he resigned in September 2013 (although he did work again for this employer for a short time in mid 2014)
19 Following the plaintiff’s return to work with the defendant in January 2010, there appears to be no evidence that he sought treatment for any injuries relating to the incident until 21 October 2011, when he presented to a Dr Killalea at Kildare Road Medical Centre in Blacktown, New South Wales. The medical evidence of this consultation comprises a brief note which records a history of the plaintiff’s fall in July 2009 “with collapse of left lung and subsequent 70 per cent splenectomy”.[13]
[13]PCB 21. I here note that there is no evidence that the plaintiff’s lung “collapsed” or that he underwent a 70 per cent splenectomy, as distinct from a partial splenectomy.
20 When Dr Killalea examined the plaintiff on 21 October 2011, he noted that the plaintiff looked well, had blood pressure of 110/70 and, “Dual chest clear. Air entry left lung normal. Abdo soft. Nil masses or discomfort LUQ”. He noted, “Compression test still mildly positive and still some discomfort in left lower lung and chest wall on deep inspiration”.[14] There is no note of the reason for the plaintiff’s presentation to Dr Killalea, or that Dr Killalea prescribed any treatment or any follow-up.
[14]PCB 21
21 Following the presentation to Dr Killalea on 21 October 2011, the evidence of the plaintiff attending for medical treatment relating to injuries suffered in the incident is minimal.
22 A brief report from a general practitioner, Dr Ravimohan of Emu Plains Medical Practice, 101 Great Western Highway, Emu Plains, New South Wales, dated 11 April 2017, states, “Benjamin has been attending this practice on irregular basis since 24/2/2012”. It notes “a fall from height at work in 2009” and treatment for “collapsed lung, splenic injury and trauma to chest wall,” but that “his previous medical records are not available.” It goes on to state that “due to the above injury”, the plaintiff suffers from chronic chest wall and upper back pain and depression and is on Zoloft 150 milligrams daily and Endone 5 milligrams daily prn for pain management. The report does not state when the history of the 2009 incident was first obtained from the plaintiff, nor when he was prescribed Zoloft or Endone for the first time by that practice, or whether there has been any change in the dosage of either medication since the date it was first prescribed.
23 Dr Ravimohan clearly has an incorrect understanding of the plaintiff’s history in so far as he states “I understand Benjamin has not worked in any capacity since his injury in 2009.”[15] It is plain that, not only did the plaintiff return to work for the defendant in January 2010, but, before that employment ceased in May 2010, he was performing his full-time pre-accident duties, with the exception of climbing ladders. Thereafter, the plaintiff has had sequential jobs as a painter with six different employers between May 2010 and September 2013. The plaintiff’s work with these employers was not terminated or brought to an end for reasons related to his performance or injuries.[16]
[15]PCB 23
[16]See paragraphs 27 to 32 of the plaintiff’s first affidavit PCB 5-6
24 In his first affidavit the plaintiff stated that his work injuries cause him to ”experience pain in my back on the left side, pain in my upper abdomen, and difficulty breathing”.[17] He also stated that he “occasionally felt down and worthless for up to a day at a time”. He went on to state that “I often experience chronic back pain, left sided abdomen pain and also in the lung area if I take a deep breath. I have many restrictions in my lifestyle, including but not limited to sitting for long periods of time, having difficulties playing with my children at times and participating in sustained sexual activity with my partner”. He claimed that he resigned from Pro-Group in September 2013 because “as a result of my work injuries I was having too many days off work”.[18] The plaintiff went on to swear as follows:
[17]Paragraphs 19, 20 and 21 PCB 4
[18]Paragraph 32 of the plaintiff’s first affidavit, PCB 6
“33. In or about September 2013 I decided to carry out painting and decoration on my own. I made this decision as I realised that most employers would not be able to accommodate the number of days off work I needed due to my work injuries.
34. On or about 3 June 2014 I returned to Pro Group for a few weeks then had to leave again due to my poor health.
35. After leaving Pro Group for the second time I decided to have another try at painting and decoration on my own only to find my health could not take it any more so I had to stop this as well.
36. I have had to cease work altogether since around January 2015 as any period of exertion requires me to take considerable time off to recuperate.
37. I am unable to work self-employed as the recuperative times I need makes this financially unviable and the necessary increase to (sic) timeframes for completion of work unacceptable to potential clients.
38 I have lodged an application for Centrelink for receipt of the Disability Support Pension which is currently in the process of being assessed but I am currently on Newstart allowance.”[19]
[19]PCB 6
25 In a second affidavit, sworn on 4 May 2017 (“the plaintiff’s second affidavit”), the plaintiff stated, “I get constant pain in my back from my chest down to my lower back, which is on the left-hand side of my back and also goes towards the centre of my back. This is like a sharp knife like pain in my back, which feels like it is burning as well. I also have a constant pain in my upper left side of my abdomen, which is like a constant knife burning type pain”. He stated that most of the time he finds it difficult to breathe and has shortness of breath, and it is hard for him to breathe deeply, and he often feels down, worthless and depressed on most days.[20]
[20]Paragraph 10, PCB 9-10
26 The plaintiff stated that he now sees a general practitioner, Dr Schneider, about once per month, and takes 5 milligrams of Endone when required, which is usually every second day, and also four to six tablets of Nurofen Plus each day, and Ventolin when required. He stated that a lot of the time he uses a walking stick because of his back pain and pain in the left side of his body, as well as a heat pack. He described the biggest pain as being on the left side of his chest and left side of his back, around the middle of his back, at the back of his ribcage.[21]
[21]Paragraph 11, PCB 10
27 In the plaintiff’s second affidavit, he stated that he finds it difficult to sit for short periods of time because of his back, left-sided and trunk/ribcage pain. He is no longer able to go for fast walks a couple of nights a week or light jogs two or three times a week as he used to before he was injured. Nor is he able to do much housework, other than such things as doing the dishes. His sleep is disturbed because of his chest and back pain and difficulties breathing. He has put on weight and is not as active as previously. He forgets things because of the medication he is on and his pain. He has difficulty showering and dressing himself and carrying heavy shopping bags. He now rarely goes out. His sex life has been affected, particularly because of his difficulty breathing, and he believes that this affected his relationship with his former partner, Lisa. He also has difficulty picking up and playing with his three-year-old son, Oliver. Further, he has not worked since approximately January 2015 because of his chest and back pain and breathing difficulties. He does not believe that he could go back to being a painter and decorator or to a lighter job because of his injuries, and he has never done an office job and is not very computer literate.[22]
[22]Paragraphs 12–27 of the plaintiff’s second affidavit, PCB 10–13
The medical evidence
28 Other than the brief report from the plaintiff’s general practitioner, Dr Ravimohan, there is no material before the Court from any treating doctors since the plaintiff attended Dr Killalea in October 2011, save for the following:
·A brief letter from a psychologist, Mary Attard, dated 16 July 2014 relating to a referral on 23 June 2014 from a Dr S K Uppal. This notes the plaintiff’s mental health treatment concerning separation from his then partner and then eight month old child, and anger management and stress management issues in step-parenting his partner’s two children (then aged seven and five years respectively), and conflict with the biological father of those children. There is also a file note of Mary Attard dated 8 December 2014 relating to distress of the plaintiff over allegations by the biological father of the said step-children that the plaintiff had behaved inappropriately towards the female step child. Both of these documents had been extracted from the subpoenaed file of Ms Attard and were included in the Defendant’s Court Book at the time of the hearing.[23]
[23]DCB 51-52
·An Emergency Department clinical record from Nepean Hospital dated 17 June 2014. This notes that the plaintiff presented there with a one-day history of “pleuritic CP pain ~ 6/10 rest + 8/10 w mov’t”. It was noted to be “sharp stabbing pain on upper L side chest, worse w deep inspiration”. It was not relieved by Nurofen and there was “SOB on exertion”.
A prior history was recorded as:
“Collapsed lung 2009 w ruptured spleen and splenectomy – recurrent problems (? pneumothoraces ?) since then w Lung. Recent admission 2 / 52 for ? myopericarditis ? pleural effusion.
Current smoker ~ 10/week for 4 yrs. Prior to 2009 2-3 packs for ~ 10 years ~ 6 std drinks/wk.
Currently working as painter. Active.
Meds: Zoloft 50 milligrams/day and PRN Endone 5 milligrams and PRN Ventolin.
O/E: Equal chest expansion, good air entry bilat in all lung fields.
Ø adventitious sounds. HSDNH.”
This document, also, had been extracted from subpoenaed records and was included in the Defendant’s Court Book at the time of the hearing.[24]
[24]DCB 48
29 A medico-legal opinion was obtained by the plaintiff’s solicitors from Dr Clayton Thomas, rehabilitation and pain consultant. He examined the plaintiff on 9 August 2016 and provided a report dated 16 August 2016. Dr Thomas took a history of ongoing pain in the left chest wall, left shoulder girdle, back, lower back in the left side as well as in the right side and central lower back pain. He noted the plaintiff used a single point stick to take pressure off his left side. He took a history that the plaintiff was taking an antidepressant, Zoloft, 150 milligrams, which he had been on since the accident; Panadeine Forte, which he takes rarely; Endone, rarely; and Panadeine 15 milligrams, one to two every four to six hours, which he finds helpful. He noted that that medication was the plaintiff’s only current treatment and that the plaintiff had been asked to see a pain specialist, but had not, as yet, done so. Dr Thomas’s understanding was that the plaintiff had smoked up until the accident and then stopped.
30 Dr Thomas stated that the plaintiff had hypersensitivity by way of hypoalgesia to the left side of the mid line anteriorly over the chest wall and extending to the nipple level. Left shoulder movements were limited by chest wall pain. He recorded a history of the fall from the ladder on 30 July 2009 onto the plaintiff’s left side, resulting in a pneumothorax and, subsequently, pleural effusions. He opined: “He has been left with significant neuropathic-type pains in his left chest wall in particular. These have had a significant impact on his ability to function and in particular the use of his left upper limb. He is not able to sleep on his left side nor is he able to sleep on his chest”.[25] He stated that the plaintiff reported that he was able to get back to work and worked steadily and consistently until January 2015, but he has not worked since that time.
[25]PCB 45
31 Dr Thomas considered that the plaintiff did have a capacity to work in suitable employment. The primary restriction is use of the left outstretched arm as apparently left shoulder movements were limited by left chest wall pain.[26] He thought the plaintiff could lift 5 kilograms between waist and chest height, but would have difficulty with repetitive activities above chest height or below waist height. He did not think he could return to his pre‑injury work as a painter lifting larger objects such as 10 litre or even 4 litre, cans of paint, but could lift smaller cans. He thought the plaintiff would have difficulty performing work which involved both arms, such as using paint rollers. He considered that the plaintiff would be able to work in a steadfast and reliable manner performing appropriate suitable duties within the restrictions that he mentioned indefinitely for up to 20 hours per week. His prognosis was for ongoing pain and disability, but he thought the nature of his problem was unlikely to be progressive.
[26]There is no explanation for the mechanics of this restriction. Moreover it is not a restriction complained of by the plaintiff in his affidavits.
32 Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff at the request of his solicitors on 13 April 2017 and provided a report dated 27 April 2017. Dr Middleton took a history that, following the incident on 30 July 2009, the plaintiff had “a ruptured spleen” and subsequently underwent “splenectomy” and, although he returned to work on 27 January 2010 as a painter, he was still very sore and “tried to go back to a normal routine but was having severe pains down the left hand side of the body and thoracolumbar spine and pains in the chest with breathing problems.”[27] In 2010 he was still undergoing regular physiotherapy and being monitored by his family doctor. He found he was picking up flu-like viruses and, between 2014 and 2015, “he may have only worked three-four weeks. As a result he lost his job due to poor attendance.” He noted that the plaintiff tried then to work for himself as a subcontractor, but ceased work in January 2015.[28]
[27]PCB 47
[28]PCB 47
33 I here interpolate that much of the history taken by Mr Middleton is inaccurate in that the plaintiff did not suffer a ruptured (as distinct from a lacerated) spleen and did not undergo a splenectomy, as distinct from a partial splenectomy, but has a functioning spleen.[29] Moreover, the history recorded by Dr Middleton nearly eight years after the event, that the plaintiff had been undergoing regular physiotherapy and monitoring by his family doctor in 2010 is not the subject of any evidence, nor is the plaintiff’s claim that, after returning to work in January 2010, he had ongoing severe pains down the left hand side of the body and thoracolumbar spine and pains in the chest with breathing problems. Further, the history that the plaintiff lost his job in 2014/2015 due to poor attendance, is not in accordance with the plaintiff’s own evidence, which is that he resigned from his job with Pro Group, albeit that he claims that he was losing time from work. However, he stated that, after working for himself for a time, he then returned to that same employer to work for a short time. The plaintiff’s own evidence is not that he worked only three-four weeks between 2014 before ceasing work in January 2015.
[29]Dr Fox, haematologist, in a report dated 23 May 2012, states “He has not had a splenectomy, and his spleen appears to be functioning” DCB 46
34 Dr Middleton noted that the plaintiff’s main pain was still in the left thoracic cage, described as sharp, knife-like pain, constantly present, but varying in intensity, averaging between 7/10, at best 6.5/10 and at worse 9.5/10. He noted that the left rib cage pain radiates into the left lower back and buttocks. He noted that the plaintiff stated that his breathing is restricted and he has been told it is not asthma, but has been prescribed Ventolin. Dr Middleton recorded that the plaintiff is depressed and has been prescribed 150 milligrams of Zoloft and an appointment had been made for him to be seen by a psychiatrist as he admitted to suicidal ideation. (I here interpolate that the plaintiff’s evidence was that the only reason he was going to see a psychiatrist was in order to get one additional point to support his application for a disability pension. He stated that he, personally, did not feel that he needed to see a psychiatrist.[30])
[30]Transcript (“T”) 97-98
35 Dr Middleton noted that the plaintiff used a single point walking stick and, apart from Zoloft, was taking 5 milligrams of Endone as required (which varies between one to seven tablets per week). For average pain he uses Nurofen and is awaiting assessment for his pain management program. I note that this appears to be a very substantial increase in the dosage of Endone from some eight months earlier, at which time the plaintiff told Dr Thomas that he used Endone and Panadeine Forte rarely, but took one or two Panadeine 15 milligrams every four to six hours.[31]
Dr Middleton concluded as follows: “As a result of Mr Noonan’s uncontrolled fall of 3.5 m onto the deck below, he suffered an acute forceful jarring of the body, in particular the thoracic cage, including the costovertebral joints and the left sternocostal joints, aggravating previously asymptomatic degenerative spinal disease, in particular the thoracolumbar spine, which was made symptomatic from the fall. [32]
[31]PCB 44
[32]A CT scan of the thoracolumbar spine had been taken at the Alfred Hospital on the day of the incident, which showed no fracture or malalignment. The next documented reference to the thoracolumbar spine appears to be over three years later, when the plaintiff underwent a psychiatric assessment for medico-legal purposes by Dr White on 18 May 2012, DCB 27-37
36 Dr Middleton went on to opine: “As a result of trauma to the lungs, in particular the left lung, and the development of hyperalgesic responses in the left chest and shoulder, Mr Noonan developed complex regional pain syndrome with a significant neuropathic component to the pain. As a result of damage to the lungs, Mr Noonan has a mild-to-moderate loss of lung function.” Dr Middleton went on to say that other sequelae of the injuries from the fall were that the plaintiff has “variable reduction in the range of movement of most joints in proportion to pain levels that vary from day to day.” He noted that “His controlled depression has been exacerbated, and he has developed anxiety and stress, including hypervigilance.”[33]
[33]PCB 62
37 Dr Middleton stated that the plaintiff “is now restricted to sedentary non-manual duties that need to be performed in a self-paced manner with the provision of work breaks as required and the ability to change posture frequently. Activities involving both upper and lower limbs need to be above hip height and below mid-chest, preferably at waist height, avoiding repetitive, prolonged or forceful activities including both upper and lower limbs and the spine.” He considered that a graduated return to work plan commencing on 2-3 hours in any one day, 2-3 non consecutive days in any one week would be necessary and this would need to be carefully monitored by his treating doctors.[34]
[34]PCB 63
38 Dr Middleton went through the various considerations relating to suitable employment and concluded that “In theory, Mr Noonan does have some capacity to perform sedentary work, however taking into consideration his incapacity, age, education, place of residence, skills and work experience and the failure of any occupational rehabilitation services, his capacity to procure and maintain such employment is negligible in my opinion.” He reinforced that the plaintiff requires the provision of a multidisciplinary pain management program.[35]
[35]PCB 65
39 Dr Middleton does not explain what he means by the term “complex regional pain syndrome”. Moreover, the tenor of his report, in many places, gives the impression of an advocate, rather than an objective, independent professional assessor. On the basis of having seen the plaintiff once, he gives a guarded prognosis for multiple injuries, noting that, although his condition has stabilised over the past two years, prior to that there was a steady deterioration. He is particularly critical of the absence of funding for optimal treatment. However, he seems to be unaware that, although the WorkCover insurer had accepted liability for various conditions following the incident, there is no evidence that the plaintiff has sought any further treatment or to have such treatment funded until very recently. Dr Middleton states that, “Mr Noonan has been compliant with treatment, such as has been provided.”[36] However, the plaintiff’s own general practitioner, Dr Ravimohan, notes irregular attendances and that the plaintiff “has been provided with referrals to psychiatrist, psychologist, physiotherapist and pain clinic multiple times to manage his condition”, but these have not been followed up.[37]
[36]PCB 64
[37]PCB 22. Dr Ravimohan also seems to understand that the plaintiff’s failure to obtain treatment is due to financial reasons, but, there is no explanation for this from the plaintiff, and is no evidence that he has made application to WorkCover to cover any such treatment.
40 Further, Dr Ravimohan has an opinion which differs from that of Dr Middleton in that he states, “In my opinion, his chronic pain and depression can be improved with appropriate specialist treatment.”[38] He states that the plaintiff is unfit for any heavy pushing/pulling due to his chronic chest wall and upper back pain. He makes no mention of lower back pain or pain from the tip of the plaintiff’s left shoulder going down the full length of the left hand side of his spine to the bottom of the spine and including the spine itself. Dr Ravimohan also states that the plaintiff is unfit to do any work due to depression and notes that he has poor concentration, irritability and anger issues. He concluded, “Appropriate treatment will improve his day to day functioning at home and this could also lead to some form of employment in the future with better management of depression.”[39]
[38]PCB 22
[39]PCB 23
41 I here note that neither Dr Ravimohan nor Dr Middleton comment upon the fact that the plaintiff sought psychological treatment for the first time since the incident in mid-2014, and that this is unrelated to his injuries. This was when he saw Ms Attard for problems in his relationship with his partner, Lisa, and her two step-children. Nor does either doctor mention that the plaintiff had apparently undergone a two week admission for “?myopericarditis? pleural effusion” shortly before presenting to the Nepean Hospital Emergency Department on 17 June 2014. Both of these occurrences coincide with the time that the plaintiff claims that his work capacity was declining due to the injuries sustained in the incident, such that he ceased work altogether in early 2015.
42 Dr Baynes, an occupational physician, examined the plaintiff twice at the request of the defendant, namely, on 24 November 2015 and 18 October 2016. On the first occasion, he considered that the plaintiff had had a good recovery, having returned to work, but had developed a chronic pain syndrome with significant left-sided trunk pain but also lower back pain and abdominal pain, some leg pain and left shoulder pain. Also, the plaintiff complained of being unable to hold his left arm near or against the left side of his chest. He stated that the cause of the left sided trunk pain was unclear, but he suspected it was related to thoracic facet joint dysfunction and neuropathic pain. He considered that the plaintiff could undertake light part-time work, four hours per day on four days a week, with a progressive increase in hours, but noted that a major limiting factor is one of pain and posture of his left arm against the body.
43 On his most recent review, Dr Baynes noted that the plaintiff had become increasingly depressed, being depressed five out of seven days, and felt suicidal, also noting that he and his partner had separated in February 2016. Dr Baynes noted that his general pain was worse and very widespread, and that he had the begun to use a walking stick. He described his pain as sharp and stabbing and burning, but he had still not had any further treatment, even though there was an apparent intention to see a pain specialist. He had very limited sitting, standing, walking and driving tolerances and was taking one to three Endone per day, two to four Panadeine Forte and three to six Panadol, and three to six Nurofen. He noted that the plaintiff moved very slowly, using a walking stick, and sat on the edge of a chair, not putting his back against the backrest, but was able to bend over to undo and do up his bootlaces. He noted marked restriction of movement in the cervical spine and limitation of flexion, abduction and extension of the left shoulder (which had had a normal range of movement on his earlier examination[40]). There was diffuse tenderness over the trunk and chest wall, left flank and iliac fossa, cervical, thoracic and lumbar spine, and over the left facet joints and left scapular muscles and posterior chest and abdominal wall. Neurological examination of the upper and lower limbs was normal.
[40]PCB3
44 Dr Baynes considered that the plaintiff was suffering from a chronic pain syndrome affecting the left side of the trunk and spine, with apparent worsening of pain and greater limitation of function over the previous 11 months and that there was evidence of illness behaviour and some inconsistency with examination. He noted that the plaintiff had excellent language capacity and reasonable computer skills, and considered that he was fit for sedentary employment with restrictions on lifting and posture and could work on a part-time basis for four hours on four days per week, but would not be fit for work requiring significant physical exertion.
45 Dr Baynes considered that the plaintiff would be fit for alternative duties such as a trade sales assistant, in a clerical position in administration or in warehouse clerical areas, or as a ticket seller or car park attendant.[41]
[41]DCB 9
46 On 17 May 2012, Dr Burdon, consultant respiratory and sleep disorders physician, undertook an assessment of the plaintiff at the request of the defendant in relation to the plaintiff’s complaint that, since the accident, he had been short of breath on mild exertion with symptoms worse during winter and somewhat relieved by the use of inhaled Ventolin. He noted that, prior to the incident, the plaintiff stated that he had been smoking 15 to 20 cigarettes per day, but has not smoked since.
47 Dr Burdon relied on spirometry tests performed at the Mercy Private Hospital on 17 May 2012, which revealed a vital capacity of 3.76 litres (65 per cent of predicted, FEV 3.20 litres/second (68 per cent of predicted) with an FEV/VC ratio of 85 per cent, all of which percentages slightly increased following the inhalation of an aerosol bronchodilator. Dr Burdon noted that the plaintiff suffered from a small left-sided apical pneumothorax as a result of the fall in July 2009 and, subsequently, developed a large left sympathetic pleural effusion, a complication of his intra-abdominal injury. He noted that the pleural effusion had resolved, but the plaintiff continued to be short of breath on exertion. He stated that the plaintiff had a defusing capacity which was 56 per cent of predicted. However, he discounted this measurement, stating “I am of the view that the major contribution to the impairment of diffusing capacity has been Mr Noonan’s past cigarette smoking”.[42]
[42]DCB 43
48 The most recent assessment of the plaintiff by a respiratory specialist was conducted by Dr Trembath, at the request of the defendant, on 24 November 2015. Dr Trembath relied upon spirometry tests conducted on 24 November 2015, which suggested a moderate degree of restriction with no significant response to bronchodilator and some reduction of gas transfer. Dr Trembath noted that Dr Burdon had not explained the cause for the plaintiff’s shortness of breath at the time of his examination and considered that this still remained difficult to determine. He accepted that the fall on the plaintiff’s left side was an acceptable explanation for the partial rupture of the spleen, the small pneumothorax and the small subsequently increased sympathetic effusion on the left side, but stated “What I find difficult [sic] in understanding is the exquisite pain that he is now describing and the hyperaesthesia over the chest wall”. He stated that he was not able to say whether there had been an adverse psychological reaction to injury. If there had not been, then the return to work should not be a difficulty.
49 Dr Trembath considered that some of the restriction on respiratory function tests carried out could be due to pain involved in the performance of the test. He stated “The nature of this pain and its cause is not clear to me”. Thus, he concluded that, although a left-sided pneumothorax and left sympathetic pleural effusion had both resolved, the plaintiff had been left with “an obscure left chest wall pain and hyperaesthesia. The cause of this continuing pain is not clear to me. However, these symptoms have contributed to a large extent in (sic) his incapacity to return to the workforce in his usual capacity.”[43] He recommended psychiatric assessment and an assessment by either a pain management specialist or rheumatologist.
[43]DCB 15
50 Professor Fox, specialist haematologist, assessed the plaintiff’s spleen injury at the request of the defendant on 26 March 2012. He noted that the accepted injury was that of splenectomy and surgical scarring, and that the surgical scarring was quite minimal, approximately 2 centimetres in length. He referred to the blood cell count, and stated that this “shows absence of Howell-Jolly bodies, i.e. normal appearing red cells indicative of splenic function”. He stated “I am concerned that he still has pain in the region of his spleen both anteriorly and posteriorly and is breathless on minor exertion. I have seen many patients with splenectomies following trauma and other conditions over a greater than 30 year period. I have not seen this breathlessness or pain as a sequel before. This requires investigation.”[44]
[44]DCB 46
51 In a later report dated 1 June 2012, he noted the report of Dr Burdon dated 18 May 2012 and reiterated his earlier view that the plaintiff did not have a splenectomy and “On the basis of blood tests that I carried out, his spleen is functional. The scars due to keyhole surgery are miniscule and of no significance.”[45]
[45]DCB 47
52 The defendant also had the plaintiff assessed by Mr Dooley, orthopaedic surgeon, on 23 November 2015. The plaintiff gave a history of ongoing spinal pain, difficulty walking reasonable distances and difficulty sitting or standing for any length of time. He stated that he took Endone for pain and, on good days, pain is around 7 out of 10 and, on a bad day, it ranges from 8 to 9 out of 10. The plaintiff stated that he had been to Nepean Hospital on three occasions in 2015 with severe spinal pain and had seen a psychologist about his depression.[46]
[46]No records or reports from Nepean Hospital have been tendered into evidence in relation to any presentations for severe spinal pain. Further, the plaintiff’s evidence is that he has only ever seen one psychologist, namely Ms Attard, whose records were tendered into evidence by the defendant. This was a referral apparently unrelated to his injuries.
53 Mr Dooley stated “Given the mechanism of his injury, I believe that Mr Noonan sustained some musculoligamentous damage to the thoracolumbar spine in his fall. The accident occurred over six years ago. Taking into account the injury sustained, it would be my view that the constancy and intensity of Mr Noonan’s ongoing pain are greater than I would expect to see for his organic spinal injury. I believe that Mr Noonan has developed a psychological reaction to his situation and that this reaction does influence his ongoing symptoms in relation to the thoracolumbar spine.” Mr Dooley went on to state that from an orthopaedic point of view, he would expect some intermittent thoracolumbar spine pain, but not such as to require the plaintiff to lie down regularly, as he claimed, and he would expect him to be capable of carrying out a range of light employment, domestic and leisure activities.[47]
[47]DCB 22
54 Mr Dooley re-examined the plaintiff on 18 October 2016. He reiterated his view that the plaintiff’s pain and described disability are greater than he would expect to see for his organic injury and he believes that the plaintiff has had a psychological reaction to his situation and that this reaction significantly influences his ongoing symptoms. Mr Dooley’s diagnosis was of a soft tissue injury to the thoracolumbar spine which involved musculoligamentous damage. He reiterated that, from an orthopaedic point of view, he would expect the plaintiff to be able to engage in light physical work and clerical duties, albeit not regular heavy physical work or work on ladders or at a height.
The oral evidence of the plaintiff
55 In his oral evidence, the plaintiff stated that he suffered pain in his chest from approximately the mid-chest area at about armpit level, right across the left hand side, down to about waist level. He also suffered pain in the entire left hand side of his spine from the tip of his left shoulder, down to the bottom of his spine. He feels pressure and feels uncomfortable on the spine itself, but 100 per cent of the left side of his body is all pain. Since the incident in July 2009, he has always suffered pain in these identical areas and it has always been like a sharp knife being twisted and like a burning sensation, but the pain has got worse. Following the accident, his pain used to average 2 to 3 out of a score 10 each day. However, over the course of time, his pain now averages 7 to 8 or 8½ out of 10 and, on a really bad day, could be 9 to 9½ out of 10.[48]
[48]T41-43
56 The plaintiff stated that, after returning to work for the defendant in January 2010, he went from one job to another without a break, working as a painter for the next 4½ years. He stated that, although he found it difficult to use ladders during those 4½ years, he was able to work at heights because he had no problems when using scaffolding or cherry pickers, and he never refused a job or had to stop a job because it involved working at heights. He was never let go from a job, nor had any difficulty finding work.[49]
[49]T40 and 47
57 The plaintiff stated that, although he was in pain when he was working, he “forced himself to do it” but ultimately elected to finish working for Pro Group, with whom he had commenced working in mid-2011, by September 2013, because he was needing to take a lot of days off work and had been unable to work a full week for many months because of the pain.[50]
[50]T47-48
58 After leaving Pro Group, the plaintiff stated that he worked for himself for a while to accommodate his pain, but returned to work for Pro Group for a few weeks in June 2014. He said he had enjoyed working with Pro Group and “pushed his body to where he wanted it to be”, but had to stop after a few weeks as his pain was increasing. He believed that there was more work pressure because he could not pick his own hours and take breaks according to how he felt.[51] He then started to work for himself again. He stated that the last job that he did in 2014 was an eight day job, but because he was in pain, it took him 30 days to complete.[52] He ceased working altogether in January 2015 and became a stay-at-home dad for his then 18 month old son.[53] He has not looked for work since.[54]
[51]T64
[52]T66
[53]T71
[54]T88
59 Later in his evidence, the plaintiff stated that the type of pain that he “tried to push through” when he was working for Pro Group was in the same area as he had described his pain being today and his pain level at that time was about 7 to 8 out of 10.[55] He agreed in cross-examination that he did not really have any treatment between mid-2010 and mid-2014, but had presented at the Emergency Department at Nepean Hospital on 17 June 2014 with pain in his left side. The only treatment he had between mid-2010 and mid-2014 was painkillers from his general practitioner. He would take Panadol every few days with Endone, which was prescribed by his general practitioner at Emu Plains when he first came to see him. He stated that that same general practitioner also prescribed Zoloft. He admitted that he had been on Zoloft on and off through the 2000s up to the incident, but it was “a very, very small dose before the accident”. After the accident, the dose went up to 50 mg, slowly up to 100 mg and, then, went back down and went up and, currently, he is on 150 mg, but was unable to say when it was that he was prescribed that dosage.[56]
[55]T92
[56]T69-70
60 The plaintiff stated that he had initially been on Endone every day after the accident for four to five months but, as he found it highly addictive, he did not want to take it, so he only took it when he “really, really, needed to.” That was when his pain had averaged 3 or 4 a day and “the Panadol helped so (he) didn’t really need the Endone”.[57] He stated that he was getting prescriptions for Endone “through all the doctors, like at the hospitals” in Melbourne, Sydney and Queensland. In his oral evidence the plaintiff stated that he had been using 4 to 6 tablets of Nurofen Plus each day for the last year or year and a half, “but with the Endone, it’s been in the last- it’s been this year pretty much…”, although he has an ongoing script. He had sworn in his affidavit two weeks previously that he took 5mg of Endone when required, which was usually every second day.[58] However, in his oral evidence he stated that, in the meantime, he had “gotten even worse” and been taking 5mg every day because of the colder weather.[59] It is prescribed by his current general practitioner, Dr Schneider. He also uses Ventolin to help him with his breathing. He does not believe that he would be able to do sedentary work or work where he alternates between sitting and standing and, also, his medication may restrict him. He has applied for a disability pension but his application has been rejected. He needs to see a psychiatrist to get an extra point in support of the application but, personally, does not believe that he needs to see a psychiatrist.
[57]T76
[58]Paragraph 11, PCB 10
[59]T75-76
61 He stated that, in addition to the pain which he had described in his chest and the left hand side of his spine, he suffers pain in his lumbar spine when he bends down to pick things up. He uses a walking stick and, at times, borrows the mobility scooter of his invalid aunt, with whom he lives. He does no housework, but does cook for himself and his aunt most nights, and does the dishes and can hang out washing.
Analysis of the evidence
62 I found the plaintiff to be a poor historian. He had difficulty giving dates and the sequence of various matters. I appreciate that a person who is on medication and under stress whilst giving evidence may have trouble with these matters. However, my overwhelming impression of the plaintiff’s evidence, and the evidence which was put before the Court on his behalf, was that there was not a full and frank disclosure of all relevant medical evidence pertaining to his claimed serious injuries.
·In the plaintiff’s first affidavit, he had stated: “I suffered from depression as a teenager and growing up.” In his oral evidence, it was apparent that the plaintiff had started self-harming by cutting himself when he was about twelve years old and that this continued up until about the age of sixteen years.[60] However, it also emerged in cross-examination that he had been taking Zoloft for depression on and off over the 2000s and was on a dose of Zoloft at the time of the incident, albeit that the plaintiff described it as “a very, very small dose”.[61] I also note that the Alfred Hospital records from his admission following the incident state “Past history of depression”.[62]
[60]T104
[61]T70
[62]PCB 14
·It also became apparent in cross-examination that, in February 2009, prior to the plaintiff moving to Melbourne to commence work as a painter with the defendant, he had seen Dr Mike Mahfouz on 20 February 2009 at the Highlands Medical Centre in Nerang in Queensland. The consultation notes for that attendance state:
“patient came in saying that he started feeling tired and he could not breathe last night and also felt pins and needles in the chest and on his L side of the body and today went to work but again felt the breathing problem and wants to check it out.
patient denied any chest pain today other than not breathing good
patient is smoker but he only had couple cigarettes last night
patient used to be self-inflicting injuries to his skin.”
On examination, the patient was noted to be alert and in no distress, his general appearance was “looks worried” and “lungs are bit wheezy”. It was noted that an ECG was normal and spirometry was normal and the rest of the physical examination was normal. Dr Mahfouz recorded that he: “put the patient on O2 and Ventolin for 10 minutes and he felt better after that and sent him home. Advised to follow up if problem persists and advised to see psychologist when he gets to the place that he’s moving too (sic).”
Dr Mahfouz prescribed a Ventolin inhaler to be administered 2mcg 4 hourly and two repeats of the 2 x 200 dosages were given. Dr Mahfouz also prescribed Valium tablets, 5 mg, 1 tablet bd with a quantity of 50 tablets and no repeats.[63]
[63]DCB 49-50
Prior to these consultation notes being put to the plaintiff, he stated that he had been given Ventolin before the accident “on very odd occasion”[64]. After the consultation notes were put to him, he stated that that was the only time he had Ventolin before the accident,[65] and he had no follow up because there was no problem with shortness of breath again until after the incident in 2009. He stated that the advice to see a psychologist was because, at that stage, he was 29 years old and he was moving to Melbourne, where he had never been before and was buying a house, so he was a little bit anxious, as it was going to be a big change for him. He stated that he never filled the prescription for Valium or for Ventolin as he did not think he required it.[66]
[64]T75
[65]T77
[66]T105 – 106
The only record from the Highlands Medical Centre comprises two pages. These were tendered by the defendant after having been extracted from subpoenaed documents. Given that the plaintiff’s claim includes an injury to the left chest with pain and impaired respiratory function by way of breathlessness and, given that the plaintiff re-attended the Highlands Medical Centre on 8 October 2009 following the incident,[67] I would have expected a report from that Centre to be tendered as part of the plaintiff’s case. No explanation for this omission has been provided by the plaintiff. I infer that evidence from the Highlands Medical Centre would not have assisted the plaintiff’s case.
[67]DCB 50
·It is clear that the plaintiff was attending a Dr S K Uppal at Shop 16, Casula Mall, Kurrajong Road, Casula in Sydney, at some time following the incident because, on 23 June 2014, this doctor referred the plaintiff to Mary L Attard, consultant psychologist, for an appointment. (This date seems to fall within the period that the plaintiff was also consulting the general practitioner, Dr Ravimohan at Emu Plains Medical Practice.[68]) No report was tendered in evidence from Dr Uppal or Ms Attard, save for the two pages extracted from subpoenaed records of Ms Attard which were tendered by the defendant.[69]
[68]PCB 22-23
[69]DCB 51 and 52
Ms Attard’s letter back to Dr Uppal dated 16 July 2014, states: “He is currently taking 100 milligrams of Zoloft and has done in the long term for previous depression, anger management and has a history of depression and self-mutilation in his adolescence. He is currently separated from his partner and his 8 month old child due to anger management and stress management issues and in step parenting seven and five year old children. Conflict abounds between custodial parent, Ben and the biological father of the children which has occasioned Family and Community Services intervention. In recent weeks he has been drinking excessively (up to three bottles of Jack Daniels per week) but this has alleviated in the last few weeks. I believe Ben should continue counselling to address the separation in his relationship, anger management, step parenting issues and how to manage childhood behaviours and to ensure that his mood remains stable and drinking to excess does not recur. I would suggest you consider preparing a GP mental health care plan if you feel Ben adequately meets the health criteria for a referral.” Ms Attard indicated that she would provide a report at the end of the next block of session (six).[70]
[70]DCB 51
Ms Attard’s file note dated 8 December 2014 stated that she had received a call from the plaintiff last Saturday (presumably, 6 December 2014) “as having a crisis”. Ms Attard noted that she called the plaintiff back and spoke to him and Lisa (his partner). She recorded: “Distressed. Has got a letter from Lisa’s ex partner’s solicitor stating that Ben had inappropriately bathed [the female child][71] i.e. hurt her vagina whilst drying her roughly. Saw own solicitor who will respond in writing. He became depressed, down, fixating on it and reputation. Has been offered two weeks’ work in Qld by an old boss and his family is in Qld which may offer some space. Spoke to Ben, drank bottle of Jack Daniels Friday arvo in response to letter. Wanted to knock self unconscious but didn’t get unconscious. Had intermittent thoughts of gassing self in car. Could put thought aside but would reoccur. Went to bed instead and thoughts have not returned since. Has history of depression and suicidal ideation. Still on Zoloft.” There is a note that Ms Attard discussed mental health team support and advised the plaintiff to consider Queensland as a breath of fresh air and that the plaintiff felt supported and more hopeful and the next session would be in February 2015.[72]
[71]Identity omitted
[72]DCB 52
No mention had been made in either of the plaintiff’s affidavits of any difficulties in his de facto relationship, with his step-children or with his step-children’s biological father, which had necessitated counselling.[73] When asked about these matters in cross-examination, it seemed to me that the plaintiff made light of them. He stated that, when he and Lisa separated, his two stepchildren (with whom he was close) and his own biological child, Oliver (who had been born in October 2013), all went to live with Lisa. However, he denied that this had been pretty stressful and depressing, even though there had been conflict with the biological father of his step children and Community Services intervention. He claimed that, while in the house with the children, it had been stressful and he had been drinking excessively, but, when he left the house and moved in with flatmates, it was “stress free” and his drinking stopped. He said he was only separated from Lisa for “a couple of months” from June 2014. However, as cross-examination continued, he conceded that that was not the end of the stress, because in December 2014 Lisa’s ex-partner made allegations of inappropriately bathing the plaintiff’s female step child. He conceded this made him quite depressed and upset. He also conceded that, when he separated from Lisa in June 2014, was when he claimed that his pain had become so bad that he ceased working for Pro-Group on the second occasion.[74] The plaintiff stated that he continued to see Mary Attard over the next six months from June 2014.[75] I here note that, when the plaintiff was seen by Dr Trembath on behalf of the defendant on 24 November 2015, well over a year after he first saw Ms Attard, Dr Trembath recorded: “He is (my emphasis) seeing a psychologist (Mary Attard).[76] Further, It emerged in the plaintiff’s evidence that, although he and his partner, Lisa, had reconciled some time in 2014, they separated, again, in February 2016 and have not reconciled. Thus, it would appear that the relationship difficulties were not as confined as the plaintiff portrayed in his evidence.
The psychological treatment is occurring in mid-2014 at the same time the plaintiff alleges he was having increasing incapacity for work. The plaintiff seeks to blame the physical injuries the subject matter of this application for this incapacity and failed to disclose the psychological problems related to these stressful domestic circumstances, which included serious allegations (and were operating on a background of depression and self-harming problems predating the incident). The plaintiff has not served and filed reports from the therapists treating him at this time, Dr Uppal and Ms Attard. I infer that such reports would not have assisted his case. Further, the evidence tendered by the defendant from subpoenaed medical records suggests considerable non-work related psychological problems.
·Tendered in evidence by the defendant was one page of an Emergency Department clinical record from the Nepean Hospital (apparently in the Blue Mountains, according to the report of Dr Middleton[77]) dated 17 June 2014.
The progress notes record a one day history of “pleuritic CP pain”. It was noted to be a sharp, stabbing pain on the upper left side of the chest, worse on deep inspiration and not relieved by Nurofen. There was “SOB on exertion”. It was noted that the plaintiff had a history of collapsed lung in 2009 with ruptured spleen and splenectomy, and recurrent problems (? pneumothoraces ?) since then with left lung. It states: “Recent admission 2/52 for ? myopericarditis ? pleural effusion”.
It was noted that the plaintiff was a current smoker, 10 per week for four years, and, prior to 2009 had smoked two or three packs for 10 years, and that he was currently working as a painter. His medication was noted to be Zoloft, 50mg per day and PRN Endone, 5mg and PRN Ventolin. On examination it was noted, “Equal chest explanation, good air entry bilat. In all lung fields. Ø adventitious sounds. HSDNM.” [78]
This presentation of a respiratory problem – shortness of breath, coincides with the crisis in the plaintiff’s life concerning his partner, Lisa, his step-children and his step-children’s biological father, for which he was referred to Ms Attard by Dr Uppal six days later on 23 June 2014. The lack of report from the Nepean Hospital and any follow-up, particularly in the light of an apparent two week admission for what appears to be myopericarditis, is a significant omission from the medical evidence available to this Court. This is particularly so in the light of the relative dearth of evidence of treatment undertaken by the plaintiff since 2009. Moreover, when Mr Dooley saw the plaintiff on 23 November 2015, he recorded the plaintiff’s complaint of ongoing spinal pain and that “Mr Noonan said that he has been to Nepean Hospital on three occasions this year with severe spinal pain”.[79] In all of these circumstances, one would expect the plaintiff to have produced and tendered a report and/or records from the Nepean Hospital.The plaintiff has given no explanation to the Court for failing to provide such a report or records. Thus, I infer that such a report or records would not have assisted the plaintiff’s case.
Analysis and conclusions in relation to the plaintiff’s claim pursuant to paragraph (a) of the definition of serious injury
[73]The plaintiff’s affidavits refer only to difficulties with his sex life due to pain and breathing difficulties, which he believes had affected his relationship with his ex-partner, Lisa: PCB 4 and 12
[74]T54-59 and T61-64 and paragraph 34 of the plaintiff’s first affidavit PCB 6
[75]T55-56
[76]DCB 13. Dr Trembath also noted that the plaintiff “was due to be referred to a clinical psychologist. He was a bit confused about the role of the psychologist and psychiatrist but as far as I can tell, he has not been assessed by a psychiatrist in relation to his depression at least in recent times, or the other issues in relation to his accident”.
[77]PCB 62
[78]DCB 48
[79]DCB 21
63 On the evidence before me, it is clear that the fall suffered by the plaintiff on 9 July 2009 was a dramatic one. It was from a height of approximately 3 metres, following which he fell heavily on to a deck below onto his left hand side. It is the type of fall where serious physical injuries could be sustained and from which severe mental or permanent severe behavioural disturbance or disorder could flow. The question to be addressed is whether the plaintiff has satisfied the court on the balance of probabilities that either or both of those scenarios is the case at the present time.
The chest injury and any relationship to respiratory difficulties
64 I am satisfied on the balance of probabilities that the fall caused the plaintiff to suffer a small apical left-side pneumothorax and sympathetic left-sided plural effusion. This was initially treated conservatively at the Alfred Hospital, but later required drainage of some 2 litres of fluid from the plaintiff’s left chest cavity at Robina Hospital in Queensland in October 2009.
65 As already mentioned in this judgment, there has been a dearth of treatment by the plaintiff generally since 2009:
· He consulted Dr Killalea on 21 October 2011, and Dr Killalea noted that a compression test was still mildly positive and there was still some discomfort in the left lower lung and chest wall on deep inspiration.
· The nature and extent of treatment for the chest injury by Dr Ravimohan is unclear. The plaintiff first attended Dr Ravimohan’s practice on 24 February 2012. The history given by the plaintiff then is not recorded by Dr Ravimohan. Thereafter, he attended irregularly according to Dr Ravimohan’s report dated 11 April 2017.
· The Emergency Record of the presentation by the plaintiff at Nepean Hospital on 17 June 2014, complaining of sharp stabbing pain on the upper left side of the chest and shortness of breath, does not assist the Court as to the cause of these symptoms. The examination on that occasion showed equal chest expansion and good air entry bilaterally in all lung fields. There had been a recent two week admission for what appears to be possibly myopericarditis and possibly plural effusion, but no elucidation of what was involved with this admission is before the Court. Further, the medico-legal experts who have been asked to comment upon the plaintiff’s condition have been deprived of that information, as well as the fact that the plaintiff had presented to Dr Mike Mahfouz in Queensland on 20 February 2009 prior to moving to Victoria to commence work with the defendant with symptoms of feeling tired and not being able to breathe the previous night and pins and needles in the chest on the left side of his body and feeling a breathing problem at work. On that occasion, the plaintiff’s lungs were a bit wheezy and Ventolin and oxygen were administered that made him feel better, but spirometry was normal.
66 The plaintiff has a history of being a smoker. The histories recorded by a number of doctors and hospitals vary. The plaintiff, himself, stated that from age seventeen, he smoked for about three or four years. He believed that, around this time, when he was eighteen or nineteen years old, he was smoking two or three packets a day. He stated that he began smoking again in 2008 and, at the time of the incident, was smoking about one packet, containing 20 cigarettes, every three days. He stated that following his admission to the Alfred Hospital in July 2009, he stopped smoking, but began again in about 2013 for approximately six months, during which he was smoking approximately one packet of cigarettes a week. After that six monthly period, he states that he has only smoked roughly four cigarettes a month. The plaintiff disputed the history recorded in the notes of the Emergency Department of the Nepean Hospital on 17 June 2014 that he had smoked 10 cigarettes per week for four years. He also disputed the history that he had smoked two to three packets for 10 years prior to that, stating that this would be an average over the period from when he was eighteen or nineteen years old.[80]
[80]T98-100
67 I find it difficult to determine whether the plaintiff’s evidence on oath about his smoking habits is accurate or not. On 17 May 2012, Dr Burdon, respiratory specialist, recorded a history that the plaintiff ceased smoking 15-20 cigarettes daily at the time of the accident and has not smoked since.[81] Dr Burdon in 2012 considered that the plaintiff’s left-sided pneumothorax, which gave rise to a complication of sympathetic left-sided plural effusion, had resolved. He stated that the plaintiff’s chest injury had healed and stabilised. He recorded that the plaintiff, at that time, had a respiratory impairment which was 56 per cent of predicted and would have equated to an impairment assessment of 32 per cent. However, he stated “I have discounted this measurement as I am of the view that the major contribution to the impairment of diffusing capacity has been Mr Noonan’s past cigarette smoking.”[82] It is plain that since that opinion given by Dr Burdon, the plaintiff took up smoking, at least to the extent that he admitted on oath.
[81]DCB 40
[82]DCB 43
68 Later respiratory tests conducted in November 2015 and commented upon in the report of Dr Trembath, respiratory physician, show a moderate degree of restriction and some reduction of gas transfer. Dr Trembath comments that when Dr Burdon had seen the plaintiff, he did not explain the cause for the shortness of breath at the time of his examination (May 2012) and Dr Trembath commented that “This still remains difficult to determine”.[83]
[83]DCB 14-15
69 Taking into account all of the evidence, although I find that it is possible that the chest injury sustained in the incident does currently give rise to some shortness of breath, I am unable to be satisfied on the balance of probabilities that this is so. Indeed, Dr Middleton, in April this year, noted that the plaintiff’s chest movements were normal, auscultation of the chest was clear, and he had good air movement and no abnormal breath sounds.[84] Even if I were to be satisfied on the balance of probabilities, I am not satisfied that any shortness of breath attributable to the incident can meet the test of serious injury. That is, I could not be satisfied that it has given rise to an impairment that is, at least, very considerable.
[84]PCB 62
Injury to the spleen
70 I am satisfied on the balance of probabilities that in the incident the plaintiff suffered a laceration of the inferior pole of the spleen, with a large extracapsular haematoma and active extravasation of blood in the mesentery extending into the pelvis. This was treated at the Alfred Hospital by the procedure of splenic embolisation. The plaintiff suffered a further complication relating to his spleen injury which necessitated him undergoing a laparoscopic division of adhesions and partial splenectomy performed by Dr Chu at St George Private Hospital in Sydney in September 2009.
71 As best I can glean from the evidence, by November or December, Dr Chu was satisfied that an abdominal/chest CT scan was all clear and it is apparent that by 28 January 2010, the plaintiff, as predicted by Dr Chu, had been given the clearance for a return to work which took place on a graduated basis.
72 Professor Fox reviewed the plaintiff on 26 March 2012 and clarified in a report of 1 June 2012 that, on the basis of blood tests carried out, the plaintiff’s spleen is functional. He noted that the scars from keyhole surgery are miniscule and of no significance. He stated that the plaintiff has a zero impairment for his spleen injury and zero impairment for his surgical scarring injury.[85]
[85]PCB 47
73 He stated that the plaintiff’s complaint of pain in the region of his spleen, both anteriorly and posteriorly, and of breathlessness on minor exertion, are not symptoms which he had seen as a sequel to splenectomies following trauma and other conditions over a greater than 30 year period.[86]
[86]DCB 46
74 Having reviewed all of the evidence, I am not satisfied on the balance of probabilities that there is now any physical impairment to the function of the spleen. Hence, it cannot satisfy the test of serious injury.
The plaintiff’s pain in the chest wall and back
75 The plaintiff’s general practitioner, Dr Ravimohan, stated that the plaintiff suffers chronic chest wall and upper (my emphasis) back pain.[87] Without having any previous medical records and having seen the plaintiff only on an irregular basis since February 2012 (it being unclear how often the plaintiff consulted Dr Ravimohan or when the last consultation had been prior to his report dated 11 April 2017), Dr Ravimohan stated that the plaintiff’s chronic pain is due to the injury he sustained at work in July 2009. He had understood that the plaintiff had not worked in any capacity since his injury in 2009. Dr Ravimohan describes the plaintiff being on 150 milligrams of Zoloft daily and Endone, 5 milligrams daily, for pain management, but does not state when it was that these were first prescribed by him or what the plaintiff’s medication status was when he first came to see him in February 2012.
[87]PCB 22
76 In the circumstances, I find that I can place very little weight on Dr Ravimohan’s opinion that the plaintiff’s chronic pain is due to the injury sustained at work in July 2009. He appears to be unaware that the plaintiff claims that, since the incident, he has suffered pain in an area from the middle of his chest across to his left armpit, down to around about waist level on the front of his body, and pain over the entirety of the left half of his back, from the tip of his left shoulder, down to the base of his spine and including the spine itself.
77 The pithy description of “chronic chest wall and upper back pain” by Dr Ravimohan in his report dated 11 April 2017 is quite markedly different from the current symptoms described by the plaintiff in his oral evidence and to Dr Middleton who saw him recently on 13 April 2017. Dr Middleton recorded, “The main pain is still in the left thoracic cage, described as sharp, knife-like pain, constantly present, but varying in intensity, average between 7/10, at best 6.5/10, and at worst 9.5/10. The left rib cage pain radiates into the left lower back and buttocks. It is aggravated by placing pressure on the left leg where pain starts at the left knee shooting up to the base of the neck and is weather sensitive.” Dr Middleton also noted that the plaintiff complained of restricted breathing, with increased left chest pain on deep breathing and shortness of breath which he claimed he had been told was not asthma, but had been prescribed Ventolin for it.[88] So too, did the pain diagram drawn by the plaintiff on 13 April 2017 for Dr Middleton differ from the various descriptions in other medical or hospital reports from 2009 onwards: “The pain diagram covers the anterior aspect of the left rib cage, the entire left hand side of body posteriorly from the left base of neck, posterior chest cage, left paravertebral area extending down to the left sacroiliac joint, average pain being 6.5-7/10 daily and some 9‑9.5/10.”[89]
[88]PCB 48
[89]PCB 52
78 Even Dr Thomas, who had seen the plaintiff some eight months prior to Dr Middleton, (on 9 August 2016), had a somewhat different description of pain from what had gone before. This was: “Pain in the left chest wall, pain in the left shoulder girdle, pain in the back. Lower back pain in the left side as well as the right side. Central lower back pain.” He also noted,
“Hypersensitivity by way of hypoalgesia to the left side of the mid line anteriorly over the chest wall and extending to the nipple level. Left shoulder movements were limited by left chest wall pain.”[90]
[90]PCB 44 – 45
79 Dr Thomas noted that the primary restriction in relation to work was his use of the left outstretched arm. As best I can ascertain, the left upper limb problems had not featured as an alleged sequel to the 2009 injuries until they were recorded by Dr Baynes when he examined the plaintiff on 24 November 2015.[91] The plaintiff makes no mention of any restrictions of his left upper limb in either of his affidavits. The mechanism of the recorded restriction of the left upper limb in so far as it relates to the incident is unclear to me. There is a suggestion that it is related to hyperaesthesia in the left trunk but Dr Baynes most recent report notes actual limitation of movement of the shoulder joint itself and the shoulder girdle muscles. The reason for the hyperaesthesia is said by Dr Trembath to be difficult to explain. If there is some frank discrete injury to the left shoulder joint it has never been the subject of the plaintiff’s report of injury or a part of this application.
[91]DCB 2
80 Mr Dooley, orthopaedic surgeon, considered that, given the mechanism of the fall, he believed that the plaintiff had sustained some musculoligamentous damage to the thoracolumbar spine. However, he thought that the constancy and intensity of his ongoing pain were greater than he would expect to see for his organic spinal injury and he believed that the plaintiff had developed a psychological reaction to his situation and that this was influencing his ongoing symptoms in relation to thoracolumbar spine. He repeated this view after seeing the plaintiff a second time on 18 October 2016. He stated: “Accepting the soft tissue injuries sustained to the thoracolumbar spine region, it remains my view that the constancy and intensity of Mr Noonan’s ongoing pain and his described disability are greater than I would expect to see for his organic injury. I believe that Mr Noonan has had a psychological reaction to his situation and that this reaction significantly influences his ongoing symptoms.”[92]
[92]DCB 26
81 It is clear that under paragraph (a) of the definition of serious injury, the plaintiff must satisfy the Court that he has suffered a physical injury giving rise to an impairment with consequences that are at least very considerable. It is not to the point for the defendant to say, as Ms Cooper did at one point, that the plaintiff cannot prove that his pain is attributable solely to physical injuries sustained in the incident. It is plain that “the statutory test is not concerned with whether the pain and suffering consequences are ‘substantially physically based’ or have ‘substantially an organic basis’”.[93] However, it has been accepted that, in order to determine whether the statutory test has been satisfied, it is appropriate to first ask whether there is a substantial organic basis for the consequences relied upon and, if not, then the plaintiff must be able to separate the physical contribution to his symptoms from the psychological in order to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[94]
[93]Meadows v Lichmore [2013] VSCA 201, page 6, paragraph 18
[94](Ibid) page 8 – 9
82 In this case, there is a body of evidence which causes me to doubt that the very widespread symptoms of pain in the plaintiff’s chest and entire left hand side of his back, from the shoulder to the base of the spine (even leaving aside histories of generalised lower back pain and pain in the legs), can be explained on an organic basis. Although this was, as I have acknowledged, a dramatic fall, it did not occasion any broken ribs or fractures. Any spinal injury, at its highest, is a musculoligamentous strain, as diagnosed by Mr Dooley, but this cannot explain the widespread pain to the entire left chest area at the front of his body and the entire left hand side of his back, together with the pain itself.
83 Dr Thomas, Dr Middleton and Dr Baynes speak of the plaintiff as suffering from neuropathic-type pain and a chronic pain syndrome or complex regional pain syndrome. The mechanism whereby this has arisen from the specific injuries sustained by the plaintiff in the incident to explain the widespread pain described by the plaintiff is not explained by these doctors. The plaintiff worked for some four years following the incident and the evidence of treatment for those injuries after he returned to work in January 2010 is scant indeed. None of the doctors explain what it was that happened to his incident-related injuries to cause him to become so physically impaired as he alleges that working became difficult for him by June 2014 and he had to cease working altogether by January 2015.
84 It is plain that Dr Baynes considered that the plaintiff exhibited signs of “illness behaviour”. Mr Dooley, too, noted spinal pain in excess of what would be expected years later from a musculoligamentous injury to the thoracolumbar spine and considered that the plaintiff had developed a psychological reaction to injury which was contributing to his symptoms. Dr Trembath stated that he found it difficult to understand the exquisite pain that the plaintiff was now describing and the hyperaesthesia over the chest wall.[95] He stated that the cause of this continuing pain was not clear to him and he recommended a psychiatric assessment. To my mind this, indicates that Dr Trembath, being unable to explain the plaintiff’s symptoms on an organic basis, considered that there may be some psychological or psychiatric explanation.
[95]DCB 14 and 15
85 The plaintiff describes very widespread symptoms and claims that they have been present since the incident and that, even when working for four years after returning to work in January 2010, he had to “push through” pain levels of 7 or 8 out of 10.[96] Yet, in the financial years ending 30 June 2011 and 30 June 2012, the plaintiff achieved a gross income in excess of $42,000, which was more than he had earned in the last financial year before the incident in 2009. Indeed, on 18 May 2012, he had told Dr White, a psychiatrist who examined him on behalf of the defendant that as far as his back, abdominal and lung symptoms were concerned he was “learning to live with it and he felt his efforts in that regard had been good”.[97]
[96]T93
[97]DCB 29
86 Further, this dramatic description of symptoms has not been accompanied by other than minimal treatment and it is far from clear who has prescribed Endone or Panadeine Forte over the eight years since the accident. Indeed, there is no report even from the plaintiff’s current treating general practitioner, Dr Schneider. There is no evidence from the plaintiff’s partner or his employer, Pro Group to support the plaintiff’s evidence that he was needing to take time off or cease work due to his work injuries or “poor health” as described in the plaintiff’s first affidavit. Nor is there any contemporaneous evidence of a report to any doctor to this effect.
87 The plaintiff now presents as grossly physically disabled and, at times, when making his way to the witness box during the hearing, seemed able to move with only the gravest difficulty. He has taken to using a walking stick and also borrows his disabled aunt’s mobility scooter. Yet, he has failed to follow up any of Dr Ravimohan’s multiple referrals to a psychiatrist, psychologist, physiotherapist or pain clinic.
88 In 2013 and 2014, the plaintiff had significant events taking place in his personal life. His first child, Oliver, was born in October 2013 and there were apparent difficulties relating to his step-parenting of his partner’s two children. Things became very bad in June 2014. According to the plaintiff, this is when his work capacity started to go downhill very badly. It is my clear impression that the relationship difficulties with his partner, his step-parenting difficulties, and the tension between he and the biological father, which culminated in serious allegations against the plaintiff and the involvement of Community Services, had an impact on the plaintiff such that he developed psychological stress on a life-long background of being someone who was prone to such stress. It is clear that he had a troubled adolescence with depression and self-harming behaviour and had remained on antidepressants right up until the time of the injury (albeit that the dosage of such antidepressants have not been the subject of medical evidence, only the plaintiff’s unclear description).
89 The plaintiff’s presentation to a general practitioner in 2009 before he moved to Melbourne to commence work with the defendant, suggests heightened anxiety beyond what one might expect of a 29 year old person moving interstate to a new job and a new home. The presentation to hospital in 2014, was for symptoms of chest pain and shortness of breath, shortly before being referred to Ms Attard for psychological counselling for non-work stressors in a domestic setting. This raises a strong inference of psychological problems not related to the incident.
90 I am satisfied, on the balance of probabilities, that psychological causes for the physical symptoms of which the plaintiff now complains have become predominant. In all of the circumstances, I am not satisfied, on the balance of probabilities, that the generalised pain in the chest wall and upper and lower back, particularly on the whole of the left side of the spine and including the spine itself, can be explained on an organic basis. Even if I were to be satisfied of an organic basis, the only report from a treating doctor, Dr Ravimohan, suggests that further treatment may help the plaintiff’s physical symptoms, but the plaintiff has resisted referrals for such treatment. In such circumstances, I could not be satisfied that the plaintiff’s injuries have necessarily stabilised insofar as they do have any organic basis. For these reasons, the plaintiff’s claim for those injuries, based on paragraph (a) of the definition of serious injury, must fail.
Analysis and conclusions in relation to the plaintiff’s claim pursuant to paragraph (c) of the definition of serious injury
91 Mr Clements of Senior Counsel conceded that the plaintiff’s case had been primarily focused upon his application under paragraph (a) of the definition of serious injury. However, he submitted that if the court was against that submission and “thinks it is all psychiatric” then the court could find for the plaintiff under limb (c).
92 To my mind this is a flawed presentation of the plaintiff’s case.
93 Dr Tagkalidis, psychiatrist, conducted a medico-legal assessment of the plaintiff at the request of his solicitors on 9 August 2016.
94 Dr Tagkalidis took a history that the plaintiff was generally happy and rated his mood as 10/10 during the pre-injury period. Save for the plaintiff stating that he had struggled with some “teenage turmoil” and was assessed by a psychologist on one occasion and did not require ongoing care, the plaintiff had no past psychiatric history and no past medical history.
95 Dr Tagkalidis took a history of the fall in the incident. The plaintiff stated that “whilst falling he thought ‘f..ck’ and was in genuine fear for his life, and landed heavily on his left sided [sic] onto decking.” The plaintiff described severe left-sided torso pain, injury to his spleen and a left pneumothorax requiring an admission to the intensive care unit for seven days and then to a ward for another three days.[98] The plaintiff gave a history of requiring further treatment in Sydney and Queensland. He stated that, in the days and weeks after the incident, he started experiencing frequent reliving phenomena including some intrusive images of the fall, nightmares, and ruminations about the events, and his general practitioner prescribed the anti-depressant, Sertraline, in late 2009 and he had continued on this ever since. The plaintiff described to Dr Tagkalidis that he struggled with his work after the incident because of ongoing left sided chest, back and abdominal pain, and his general practitioner referred him to a psychologist in 2013 whom he attended on 10 occasions but could not afford to continue.
[98]In fact, the Alfred Hospital discharge summary shows that the plaintiff was an impatient of the Alfred Hospital, not for 10 days, but for five days, and that he was discharged on 4 August 2009 PCB 14.
96 Dr Tagkalidis recorded that the plaintiff stated that in the last year of his work between early 2014 and February 2015, he only worked approximately 25 per cent of the time because of his physical limitations. His de facto relationship came to an end because of his chronic irritability and emotional withdrawal post injury, with things having escalated to the point where he was drinking up to three bottles of Jack Daniels on three days per week.
97 Dr Tagkalidis noted the plaintiff’s irritability, negative thoughts about being a burden on his family, guilt about not providing for his son, reduced energy levels and diminished self-worth, along with disruptive stress, waking up to six times nightly due to pain, stress and worry and the fact that he had gained 20 kilograms since the incident due to relative inactivity. He noted passive suicidal thinking, but that the plaintiff had not experienced intrusive flashbacks for the last two years, and nightmares related to the incident had largely settled, with very occasional isolated dreams. However, he remained avoidant of heights and hypervigilant for his safety.
98 Dr Tagkalidis took a history that the plaintiff was taking the anti-depressant, Sertraline 150 milligrams daily, Endone 5 milligrams twice daily, Panadeine Forte up to eight tablets per day, and a Ventolin puffer.[99]
[99]This regime of medication is at odds with that recorded by Dr Thomas on the same day, 9 August 2016, namely, that the plaintiff rarely took Panadeine Forte or Endone, but took one to two Panadeine 15mg, every four to six hours, which he finds helpful PCB 44
99 Dr Tagkalidis diagnosed the plaintiff as suffering a chronic Adjustment Disorder with Depressed Mood and some features of traumatisation, relevant to the claimed injuries. He noted that this was on the basis of the historical and mental state findings detailed above. He considered that the previous prominent features of traumatisation had partially resolved, but ongoing hypervigilance for his safety and avoidance of heights was still clearly evident. He accepted that the physical injury to his left torso and consequent financial and social life changes contributed 100 per cent to his current emotional distress, but the depressive syndrome was not currently of a severity that justified a Major Depressive Disorder diagnosis. Nor did the features of traumatisation justify a full diagnosis of Post-Traumatic Stress Disorder because of the lack of intensity and severity in symptoms relating to re-experiencing, avoidance and arousal.
100 He considered that the plaintiff was not fit for his pre-injury employment due to his hypervigilance and avoidance of heights, but thought that the plaintiff would be fit for alternative duties on the basis of his psychological state alone. Accepting the plaintiff’s physical injuries, Dr Tagkalidis then stated he is not fit for alternate duties with his psychological condition contributing some part by reason of impaired concentration, reduced energy levels and lowered stress tolerance and ongoing passive suicidal thinking.[100]
[100]I here note that in neither of his affidavits or in his oral evidence did the plaintiff mention that he had experienced suicidal ideation relating to his injuries. Further, although in paragraph 24 of the plaintiff’s first affidavit (PCB 5) he stated “I have become petrified of heights and have lost my nerve on ladders and freeze if I have to go up a ladder”, he also stated “I performed normal duties at work except going up ladders…”. In his oral evidence he confirmed that for four and a half years after the incident he managed to work as a painter and decorator with very minimal use of ladders. He was able to use scaffolding and cherry pickers which were “not a problem at all. It was just the extension [ladder] work” T40
101 Having just stated that, on the basis of the plaintiff’s psychological state alone, he was fit for alternative duties, Dr Tagkalidis then concluded, after considering the definition of suitable employment in the Act, that the plaintiff did not have a capacity for suitable employment, which was likely to be of a permanent nature given the chronic nature of his physical issues (my emphasis). Clearly, an assessment of the plaintiff’s physical injury and capacity for work referable to that injury is outside the expertise of a psychiatrist. Dr Tagkalidis did suggest further treatment by way of fortnightly counselling sessions with a psychologist for a period of at least 12 months, a trial of anti-depressants with pain modulating qualities, such as Duloxetine, and a pain management program. However, he stated that the prognosis was guarded due to the chronic nature of the plaintiff’s depressive condition in response to his chronic physical state and limitations (my emphasis).[101]
[101]PCB 41
102 Dr Tagkalidis’ history is inadequate in a number of respects. He seems to be unaware that the “teenage turmoil” to which he refers actually involved the plaintiff self-harming from age 12 to 16 years,[102] or that he had been taking the anti-depressant Zoloft (albeit in a dosage which is unclear) on and off during the 2000s prior to the incident,[103] or that the only psychologist the plaintiff had attended was Ms Attard. It is clear from Ms Attard’s records that this was from mid-2014 and the referral was not related to his work-related injuries but, rather, to problems in his de facto relationship with his stepchildren and also in relation to allegations of impropriety made by the biological father of the stepchildren against the plaintiff.[104] Further, his de facto relationship did not come to an end in 2014 due to any work-related physical limitations, and his drinking to excess also appears unrelated to his work injuries. In this respect Ms Attard’s note dated 8 December 2014 recorded that she spoke to the plaintiff, who was “distressed as he got a letter from Lisa’s ex‑partner’s solicitor stating that Ben had inappropriately bathed [the female child][105], ie hurt her vagina while drying her roughly. Saw own solicitor who will respond in writing. He became depressed, down fixating on it and reputation. Has been offered two weeks’ work in Queensland by an old boss and his family is in Queensland which may offer some space. Spoke to Ben, drank bottle of Jack Daniels Friday arvo in response to letter. Wanted to knock self unconscious but didn’t get unconscious. Had intermittent thoughts of gassing self in car. Could put thought aside but would recur.” She did note that he had a history of depression and suicidal ideation and was still on Zoloft, but makes no mention of it being related to his injuries from the incident.[106]
[102]T104
[103]T69-70 and 89
[104]DCB 51-52
[105]Identity omitted
[106]DCB 52
103 Further, I note that in neither of his affidavits or in his oral evidence did the plaintiff mention that he had experienced suicidal ideation relating to his injuries. In paragraph 24 of the plaintiff’s first affidavit he stated “I have become petrified of heights and have lost my nerve on ladders and freeze if I have to go up a ladder”, but he also stated “I perform normal duties at work except going up ladders ...”[107] In his oral evidence he confirmed that for four and a half years after the accident he managed to work as a painter and decorator with very minimal use of ladders. He was able to use scaffolding and cherry-pickers which were “not a problem at all. It was just the extension [ladder] work.”[108]
[107]PCB 5
[108]T40
104 The matters which I have mentioned undermine Dr Tagkalidis’ report. Moreover, given that the plaintiff has admitted that he was taking the anti-depressant Zoloft for some eight years or so prior to the accident, albeit that he claims that this was in “a very, very small dose”,[109] there is no evidence as to when the plaintiff’s dose was first increased after the incident. On 17 June 2014 Nepean Hospital records show that the plaintiff was on 50mg per day of Zoloft.[110] By the time he saw Mary Attard on 16 July 2014 he was on 100mg per day of Zoloft, which she noted he had been on “in the long-term for previous depression, anger management and a history of depression and self-mutilation in his adolescence”.[111]
[109]T69-70
[110]DCB 48
[111]DCB 51
105 In all of these circumstances I find it difficult to accept Dr Tagkalidis’ conclusion that the diagnosis of chronic Adjustment Disorder with Depressed Mood and some features of traumatisation “reflects the fact that the claimant clearly developed a depressive syndrome consequent to the incidents described”.[112]
[112]PCB 38
106 Dr Tagkalidis seems simply to accept that there is an organic basis for all the plaintiff’s physical complaints, and that “the physical injury to his left torso (and consequent financial and social life changes) contribute 100 per cent of his current emotional distress”.[113] However, he goes on to state “that the depressive syndrome is not currently of a severity that justifies a Major Depressive Disorder diagnosis”. He further notes that the plaintiff’s features of traumatisation “do not justify a full diagnosis of Post-Traumatic Stress Disorder because of the lack of intensity and severity in symptoms clusters relating to re‑experiencing avoidance and arousal”. Thus, even if I were to accept Dr Tagkalidis’ opinion in spite of his incorrect conclusion that “there were no pre-existing psychiatric issues of relevance”,[114] his opinion could not justify a conclusion that the plaintiff is currently suffering a permanent mental disturbance or disorder which is severe. Indeed, the plaintiff, himself, denied any need for psychiatric treatment and made it clear that the only reason he was considering a referral to a psychiatrist was in order to satisfy a prerequisite for a disability pension.
[113]PCB 38
[114]PCB 38
107 The only other psychiatric report was that of Dr White, who examined the plaintiff on behalf of the defendant on 18 May 2012. At that time, he noted that the plaintiff’s depressive symptoms had remitted with appropriate anti-depressant treatment, but that the plaintiff had a residual specific phobia characterised by a marked and persistent fear of climbing ladders. He considered that “for the most part there is insignificant impairment”. He also stated that, at that stage, the plaintiff’s condition had not stabilised and that his psychological condition appeared to be partly a primary condition but partly secondary to his physical injury.[115] In this regard, I note that the plaintiff’s treating general practitioner, Dr Ravimohan, opined that both the plaintiff’s chronic pain and depression can be improved with appropriate specialist treatment.[116] He stated “Appropriate treatment will improve his day to day functioning at home and this could also lead to some form of employment in the future with better management of depression.”[117]
[115]DCB 36
[116]PCB 22
[117]PCB 23
108 In all the circumstance I am not satisfied that the plaintiff suffers a psychological or psychiatric condition flowing from or related to the incident or the physical injuries received in that incident. It is at least as likely that any psychological problems presently suffered by the plaintiff relate to a condition pre-dating the incident and/or stressful domestic/personal relationship events occurring subsequent to the incident. It is possible that the plaintiff has some anxiety using ladders, but he can use and has used ladders in his work since the incident and has no difficulty working at heights on scaffolds or using cherry-pickers and I cannot be satisfied that his anxiety in relation to the use of ladders satisfies the high test of being severe. The plaintiff returned to normal pre-injury work as a painter and decorator after the incident (after a short period of graded hours and duties) for some 4 years from 2010 to 2014. The plaintiff alleges that he became incapacitated in 2014, but there is no contemporaneous evidence that this was in the context of work-related stressors. The only evidence is that he commenced receiving treatment for non-work stressors at this time. Further, his complaints of shortness of breath and trunk pain are similar to complaints he had made before the incident. I cannot be satisfied that the plaintiff suffers a psychological condition that is incapacitating, or that otherwise meets the definition of “severe” or that any psychological condition is related to the incident.
109 In the circumstances the plaintiff’s claim pursuant to paragraph (c) must fail.
110 For the foregoing reasons, the plaintiff’s application is dismissed.
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