Papadimitriou v Go Electrical Pty Ltd
[2016] VCC 1022
•29 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03910
| AIDAN PAPADIMITRIOU | Plaintiff |
| v | |
| GO ELECTRICAL PTY LTD (ABN 56 118 931 070) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 July 2016 | |
DATE OF JUDGMENT: | 29 July 2016 | |
CASE MAY BE CITED AS: | Papadimitriou v Go Electrical Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1022 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – back injury – loss of earning capacity – plaintiff under 26 years of age
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Whisprun Pty Ltd v Dixon [2003] HCA 48; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458; Dordev v Cowan [2006] VSCA 254
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr J J Fitzpatrick | Slater & Gordon Ltd |
| For the Defendants | Ms A M Magee QC with Mr P J Bourke | Russell Kennedy |
HIS HONOUR:
1 In this action the plaintiff seeks leave to commence common law proceedings against the first defendant, his former employer, Go Electrical Pty Ltd (“the employer”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application relates to an injury to the plaintiff’s lumbar spine which he sustained on or about 13 September 2007 whilst assisting a co‑worker delivery driver to load his utility with a drum of heavy electrical cable. The plaintiff alleges the drum weighed around 90 kilograms, and when it was lifted to waist height in order to place it on the utility, he felt a sharp pain in his back and had to drop the cable. He alleges, without contradiction, that this was fairly typical of the heavy lifting he had to do in the course of his employment.
3 He reported the injury, and subsequently made a WorkCover claim, dated 3 October 2007, which was accepted.[1]
[1]Exhibit D
4 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment on or about the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Relevantly, paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.[2]
[2]Section 134AB(38)(b) and (c) of the Act
5 The plaintiff also relied on the definition of “serious injury” within the meaning of paragraph (c) of the definition, which provides that a “serious injury” means “permanent severe mental or permanent severe behavioural disturbance or disorder”.
6 In her opening, Senior Counsel for the defendants submitted that although the plaintiff appeared to have sustained a soft-tissue injury to his lumbar spine as alleged, nonetheless the plaintiff was unable to identify an organic injury which subsisted to the time of hearing. Alternatively, she argued that the consequences of any organic injury, when judged by comparison with other cases in the range of possible impairments, could not be described as being at least “very considerable” and certainly not more than “significant” or “marked”.
7 Further, it was stated that, in a paragraph (a) case, the onus was on the plaintiff to separate the psychological or psychiatric consequences from the organic, when considering the consequences of the impairment.[3] Finally, it was submitted that the plaintiff’s presentation was overwhelmingly psychological in nature, and, as such, the plaintiff had not proved that the consequences of any organic injury satisfied the statutory test.
[3]Meadows v Lichmore Pty Ltd [2013] VSCA 201
8 With respect to the paragraph (c) case, Senior Counsel relied on the opinions of medico-legal psychiatrists, Associate Professor Mendelson[4] and Dr Ian Jackson,[5] to the effect that there was no diagnosable psychiatric injury demonstrated by the plaintiff as at May 2008, September 2009, or November 2015.
[4]Exhibit 1
[5]Exhibit 8
9 The plaintiff was the only witness to be cross-examined, and Senior Counsel for the defendants amplified her original submissions in her final address. In particular, she relied on the treating general practitioner’s opinion that there was no diagnosable organic injury other than a musculoligamentous strain, and that he was sceptical of the plaintiff’s presentation following his observation of the plaintiff running across the carpark to pick up a piece of paper. Further, counsel relied on the general practitioner’s opinion that it was impossible to separate the psychological from the physical elements of his condition. Further, insofar as the plaintiff may still be suffering from the effects of an organic injury, Senior Counsel stressed that the plaintiff was unreliable in his evidence as to the extent of his cannabis use up until the present time. It is submitted the plaintiff was deliberately misleading the Court, in terms of first denying that he had taken any illicit drugs in recent years and then admitting that he had probably smoked cannabis:
“... maybe – I don’t know – six months – seven months ago – just occasionally and that’s it, I don’t do anything else, so.
So six or seven months ago you would’ve been smoking it occasionally?---A little. Only once or twice.
Once or twice per what?---Per six months – I don’t do drugs that much any more. It’s only cannabis here and there, that’s all.
And if that’s in the last six months, going back how long were you irregularly smoking cannabis?---Off and on a couple of times a year.”[6]
[6]Transcript (“T”) 76, Lines (“L”) 12–24
10 Further, defence counsel rely on the fact that the plaintiff was a regular recreational drug user between the ages of seventeen and twenty-four[7] and found it difficult to hold down a job.[8] When coupled with the plaintiff admitting that he could play computer games at home for hours on end, the question of his motivation to return to work is seriously in question, and he had not therefore discharged the onus of proof in regard to capacity for work.
[7]T50, L20-T52, L15
[8]T70, L3-19
Identifying the injury
11 The plaintiff alleges he continued to work for two-and-a-half weeks after the injury in “complete agony”:
“Initially when I did the injury, I thought that I had probably just pulled a muscle or pinched a nerve. I worked on for a few weeks. I was struggling on, avoiding lifting and lying down quite a bit.”[9]
[9]Exhibit A, affidavit 4 April 2014, paragraph 18
12 Thereafter, he went to general practitioner, Dr Bruce Ingram of East Hawthorn. He ordered an MRI scan dated 8 October 2007. Radiologist, Dr Peter Smith, reported back to Dr Ingram on 8 October 2007 to the following effect:
“At L3/4 a subtle right foraminal disc displacement is noted. No focal neural effacement.
At L4/5 subtle right para-central protrusion is evident. Causes slight deformity of the ventral thecal sac but no focal nerve root effacement.
There is a small extension to the right foramen but again no focal neural effacement is evident.
At L5/S1 slight loss of disc height posteriorly with subtle central protrusion. This lies between the S1 nerve root. The neural foramina are patent. No pars defect.
Conclusion: Subtle disc protrusion L4/5 and L5/S1 but without focal neural effacement. Minimal or very early disc displacement at L3/4.
Dr Peter Smith.”[10]
[10]Plaintiff’s Court Book (“PCB”) pages 57B–57C
13 In his report dated 25 May 2008, Dr Ingram quoted the conclusion referred to above, and then opined:
“Very mild wear and tear. These findings could not explain his degree of disability.
I concluded that Mr Papadimitriou’s symptoms were due to musculoligamentous disruption in the muscles of the lumbar spine.”[11]
[11]Exhibit F, PCB 58
14 In any event, Dr Ingram referred the plaintiff for ongoing physiotherapy and prescribed anti-inflammatory and analgesic medications.
15 There was little improvement in the plaintiff’s condition, so Dr Ingram referred him to musculoskeletal physician, Dr Robert Gassin, who reported back on 20 December 2007.[12] Therein, he recorded:
[12]Exhibit G
“Since the onset of pain he has been on Panadeine Forte and Voltaren and has been attending a physiotherapist twice a week for predominantly passive treatment modalities.
Aidan reports that his symptoms fluctuate from day to day. He is somewhat frustrated by their persistence.
An MRI scan of the lumbar spine performed on 8th October reveals a subtle right paracentral disc protrusion at the L4/5 level and slight loss of disc height at the L5/S1 level with an associated small central protrusion.
On examination, Aidan is noted to have a slight lumbar list to the left. He experiences pain on lumbar flexion and extension. There is a significant increase in muscle tone to the left of midline and he is tender to palpation in the upper thoracic region as well as in the low lumbar region.
This gentleman’s pain is most likely discogenic in origin. However, other lumbar structures including the facet joints and the lumbar muscles cannot be excluded as contributing to his symptoms.”[13]
[13]Exhibit G, PCB 60
16 It is clear that Dr Gassin considered the problem to be more than a simple musculoligamentous strain. His recommended treatment regime was the institution of a core-strengthening program, as well as a range of movement and general fitness exercises. He also wrote to the WorkCover insurer requesting that liability be accepted for low lumbar medial branch blocks with a view to radiofrequency denervation of the lumbar facet joints.[14]
[14]Exhibit G, PCB 60–61
17 Later, Dr Gassin reported back to Dr Ingram on 27 June 2008. Therein, he recorded that the plaintiff had undergone radiofrequency denervation of the lower lumbar facet joints bilaterally. The plaintiff complained that his pain had increased since then. He had been unable to work over the past few weeks on account of its severity. (Apparently the plaintiff had returned to work with the employer on light duties at this stage.) Further, the plaintiff reported that his pain was poorly controlled on Panadeine Forte and Endep and that he had been referred to orthopaedic surgeon, Mr Bartlett (seemingly Barrett), for a second opinion. Dr Gassin advised the plaintiff that his pain:
“... is most likely discogenic in origin. However, it is still too early to state that his RFN has not been successful. I have advised him that it can take 5 to 6 weeks for a definitive answer.”[15]
[15]Exhibit G, PCB 64
18 Apparently the branch blocks had been conducted by Dr David Vivian, musculoskeletal physician, who reported outcomes on 26 March 2008, 9 April 2008, and 6 June 2008.[16] On the first occasion, Dr Vivian recorded:
“He tolerated the procedure well and when he stood after the procedure the pain was considerably lessened.
Diagnosis: Back pain for investigation.”[17]
[16]Exhibit H
[17]Exhibit H, PCB 65
19 On the second occasion, Dr Vivian recorded:
“The last block was on the left at L3/4/5; it was positive. The pain is on both sides today so both sides have been blocked.
...
Comments: Positive Block.”[18]
[18]Exhibit H, PCB 66
20 On the final occasion, dated 6 June 2008, Dr Vivian recorded, inter alia:
“Diagnosis: Lumbar Facet Joint Pain.”[19]
[19]Exhibit H, PCB 68
21 In seeking the alternative opinion from Mr Brian Barrett, orthopaedic surgeon, Dr Ingram received a report from him dated 21 July 2008.[20] Mr Barrett took a history of the plaintiff attempting a return to light and part-time work:
“... managing this only on and off, subsequently attending the Metro Spinal Group, being treated with Physiotherapy, Radiofrequency Denervation, Physiotherapy etc., without significant improvement of his symptoms.”[21]
[20]Exhibit J
[21]Exhibit J, PCB 69
22 Mr Barrett opined, with respect to the lumbar spinal MRI taken on 8 October 2007, that it:
“... confirms small posterior disc bulges at the L4‑5 and L5‑S1 levels, the L5‑S1 disc by now being unusually narrowed. None of these lumbar discs showed any significant desiccation and this may be because these films were taken so close to the initial injury.
I carefully explained to Aidan and his father, the nature of these lower lumbar disc ruptures, and the way in his symptoms are produced, including his left sciatica. Because of the limited capacity of these lumbar disc ruptures to heal, this represents a disaster for this young man, and he told me that it has been suggested that he has a lumbar discogram, possibly followed by an appropriate operative fusion.
While I tend to agree with that advice, it may be helpful to repeat the lumbar spinal MRI, now that sufficient time has elapsed, to show more diagnostic features of desiccation etc.
I also explained to Aidan and his father, the nature of a lumbar discogram investigation, and showed him examples of the results of this investigation. I must say a good quality discogram, taken over the lower four lumbar discs, is a reasonable investigation at this stage. And at least it may point the way forward or even eliminate the possibility of operative treatment being helpful.
I have not made any specific arrangements to check Aidan again.”[22]
[22]Exhibit H, PCB 70
23 It should be noted it is common ground that Mr Barrett retired soon thereafter.
24 On 27 August 2008, Dr Gassin received a report from pain medicine specialist, Dr Paul Verrills.[23] The plaintiff had been referred for “provocation discography”. As a result, he reported:
“... all discs proved to be completely normal morphologically and pain-free. A copy of the report is enclosed.”[24]
[23]Exhibit 2
[24]Exhibit 2, Defendants’ Court Book (“DCB”) 51
25 Thereafter, the plaintiff was reviewed by Dr Gassin on 11 September 2008. He reported:
“Unfortunately, the discogram he recently underwent was negative. This makes the planning of any potential surgery very difficult as a symptomatic disc was not detected.
I have explained to Aidan that unfortunately there is little else we can offer him at this clinic in terms of specific treatment. He advises me that he is awaiting appointments with Mr David de la Harpe and also Mr Gary Speck. I have reassured him that these are two highly respected surgeons and that their opinion will be invaluable.
I would suggest, however, that he also be referred for an opinion to a rehabilitation physician at Olympia Rehabilitation Hospital in Preston for an opinion regarding the appropriateness of a structured pain management course.
I have made no arrangements for review as there is little else I can offer this unfortunate gentleman at this stage.”[25]
[25]Exhibit 4, DCB 52
26 Thereafter, Dr Ingram referred the plaintiff to orthopaedic surgeon, Mr Roy Carey, who reported back 3 December 2008.[26] He reported:
[26]Exhibit 5
“He has chronic non-specific back pain.
...
He has no concrete signs of nerve root irritation or conduction deficit and no long tract signs.
He describes himself as depressed.
...
He is desperate for some sort of cure.
He has a very poor understanding of his problem, and the appropriate management strategies for it.
I have reviewed his imaging and can see no specific/concordant pathologies.
I have reviewed the pain diagrams and radiographs supplied to him by Metro Spinal Clinic and cannot understand the rationale for these treatments.
He was apparently referred to Terry Lim at Olympia for an appropriate pain management program and I agree that this is the best way to go.
...
I am sure his salvation will be in an appropriate pain management program with a significant concentration on psychology.”[27]
[27]Exhibit 5, DCB 52A–52B
27 The plaintiff was then referred by his general practitioner for another opinion from orthopaedic surgeon, Mr David de la Harpe, who reported back to him on 19 January 2009.[28] The history taken included:
[28]Exhibit 7
“He has had a lot of physiotherapy which he said is not helping. He is doing some hydrotherapy. There has been no gym program. He says he is too sore to go to a gym. He has had the full injection procedures at Metro Spinal Clinic including radiofrequency denervations.
He had a Discogram done which was negative.
His medications include Endep, Lyrica and Panadeine Forte.
...
All investigations as far as CT scans and MRI scans would be passed as normal for age. He also has a normal Discogram.
I don’t feel he is a surgical candidate for anything. I think he should continue with the physiotherapy which should revolve around some core stabilising exercises and hands on treatment. I believe he is seeing Terry Lim regarding pain management.”[29]
[29]Exhibit 7, DCB 56
28 As stated earlier, Dr Ingram reported on 25 May 2008.[30] He recorded:
[30](supra), Exhibit F
“I became concerned that there is a significant psychological component to Mr Papadimitriou’s presentation when on 10/03/2008 I observed him to run across the car park outside my medical practice stooping to pick up documents that had been blown away by a gust of wind.
I confronted him with this observation and he stated that this was entirely consistent with his condition and degree of pain.
I assessed him as to having little insight into his behaviour. On the basis of this observation I informed Mr Papadimitriou that I was going to refer him to a psychiatrist for evaluation.
...
I encouraged him to return to work part time.
Mr Papadimitriou’s condition continued to fluctuate throughout 2008 and I have continued to certify him fit for part-time work.
In my opinion Mr Papadimitriou suffered a musculoligamentous injury on 13/09/2007 which caused pain. The symptom became entrenched and he developed a significant psychological component with virtually no insight into his condition.
In my opinion he is fit to undertake a graduated return to full time duties.”[31]
[31]Exhibit F, PCB 58–59
29 Thereafter, the plaintiff was referred to psychiatrist, Dr Meileen Tan at the Melbourne Clinic, who reported on 14 January 2016.[32] She first saw him on 13 May 2008. She recorded:
“He had just been approved for medial branch block treatment at the Metro Spinal Clinic and was hopeful that it would fix his chronic back pain. He was hoping to return to full-time pre-injury duties by Sept 2008 as he did not want to lose his job.”[33]
[32]Exhibit O
[33]Exhibit O, PCB 87
30 She further recorded:
“In 2008, he had a number of failed return to work trials. There was a pattern where he would return to work part-time, try and increase his hours, then his back pain would flare up again, then he would be told to take time off again by his general practitioner. He was shifted around various work branches and given modified duties. At times, he had to drive for over an hour each way to get to work in Port Melbourne from Bulleen, and his back was more painful by the time he got to work.
... He became frustrated, angry, depressed and anxious when he realised he could no longer function at the physical level which he had before.
He reported periods when he was crying all day and did not care anymore what happened to him. His other depressive symptoms included anhedonia, tiredness, poor sleep with initial and middle insomnia, lack of energy, poor appetite, loss of weight of 5 to 10 kg, irritability and social withdrawal.”[34]
[34]Exhibit O, PCB 87
31 In terms of Dr Tan’s mental state examination, it appears to me that there is not a great deal of difference compared with the opinions of Professor Mendelson and Dr Jackson on behalf of the defendants. For example speech was fluent, perception was normal, cognition was alert and orientated, and his insight was such that he wanted help to return to a more productive life.[35] Her DSM‑IV diagnosis was:
“Axis I: Chronic pain syndrome, Dysthymia.
...
Axis III: Chronic back pain.”[36]
[35]Exhibit O, PCB 88
[36]Exhibit O, PCB 89
32 It would appear that Dr Tan reviewed the plaintiff quite regularly for at least three years. She recorded:
“Whenever there were setbacks, whether with work, WorkCover, difficulties with appointments or treatments from health professionals or with his back pain, his mood would deteriorate and he would present with days to a week or two of being angry, withdrawn, agitated, with a lot of swearing and suicidal ideation and suicidal threats.
He quit marijuana use successfully after I referred him to the Addiction Medicine Unit at St Vincent’s Hospital.
With supportive counselling and Endep, his mood generally improved.
He had fewer flare-ups of back pain when he had a more steady and gradual return to work program, and managed to get through several weeks without missing any scheduled work days. It was not realistic to expect him to return to full-time hours and duties by Sept 2008, as his back was not able to cope with such a quick increase in hours and duties.
...
He was angry and disappointed to lose his job in December 2008, as he had been progressing better with the return to work trial.
However, with counselling and supportive psychotherapy, he was able to not dwell on it and to continue to focus on his physical and emotional recovery. He was motivated to continue to improve his physical and mental health, and joined a gym where he has been given an individually designed gym and hydrotherapy program to strengthen his back and improve his strength and fitness.
There was noticeable improvement in his back range of movement with attending this physical gym and hydrotherapy program.”[37]
[37]Exhibit O, PCB 89
33 Relevantly, with respect to the pain-management course, she recorded:
“He saw Dr Terrence Lim in Jan 2009, and was told he had to see Dr Toby Sacks, a pain psychiatrist before he could start the pain management program. This program did not proceed because of lack of funding from WorkCover. He also partly attended a pain program at the Austin Hospital, but had difficulty getting to 9am sessions there in peak hour traffic.
...
He lost confidence to go out, apply for jobs, socialise. I have encouraged him unsuccessfully to go out and socialise, do some pleasurable activities. He is still limited in this because the back pain limits what activities he can do.”[38]
[38]Exhibit O, PCB 89–90
34 Dr Tan further noted that the plaintiff’s work as an electrical salesperson involved lifting and carrying heavy products, walking and being on his feet most of the day. She felt that currently he had no capacity for his pre-injury full-time salesman employment, and required work restrictions for light duties. She further thought that his Chronic Pain Syndrome had improved moderately over the last seven to eight years. Also, relevantly, she noted:
“The back focussed Kieser Training gym and physiotherapy program and Dorset Road Pain Management Program he undertook were beneficial for his core body strength and back flexibility. Unfortunately when the funding for physiotherapy ceased, his gym attendance ceased, which led to a deterioration in his back pain and flexibility.”[39]
[39]Exhibit O, PCB 91
35 Dr Tan then noted when these programs ceased because of lack of WorkCover funding:
“... the weekly structure was lost and he gradually lost most of the gains he made from them over a period of months.”[40]
[40]Exhibit O, PCB 91
36 As at the date of her report, she recorded that the plaintiff was:
“... currently on Tapentadol 200mg tds (a synthetic opiate medication, at a high dose), initiated by pain specialist Dr Clayton Thomas, and being prescribed by his GP Dr Bruce Ingram. He is very reluctant to contemplate reduction of this medication.”[41]
[41]Exhibit O, PCB 92
37 Dr Tan also referred the plaintiff to rehabilitation and pain medicine specialist, Dr Clayton Thomas, who first saw him on 12 June 2013 and reported back to Dr Tan on 16 June 2013.[42] Dr Thomas reviewed two MRI scans of the plaintiff’s lumbar spine, which he described as:
“... both showing minor loss of disc height at L4‑L5, small central noncompressive disc bulge at L4‑L5 and minor degenerative changes at L5‑S1 but no neurological compression at any level.”[43]
[42]Exhibit 12
[43]Exhibit 12, DCB 75
38 Dr Thomas formed the following impression:
“1. This was a mixed pain problem with both significant psychological problems and some physical problems. It was hard not to determine that the psychological/emotional problems were more significant than the physical problems.”[44]
[44]Exhibit 12, DCB 76
39 His recommended strategy at that stage was to reduce the amount of medication, with:
“... a view to then looking at a ketamine infusion and coming off his opioids.
3. Despite a lengthy time talking about the plan, he was most reluctant to consider coming off his medications despite the fact at the start of the consultation he felt that the medications were not helping him.”[45]
[45]Exhibit 12, DCB 76
40 In a further report dated 18 May 2016, Dr Thomas reported on his follow-up treatment.[46] He saw the plaintiff again in August 2013, 22 October 2013 (at which time a ketamine infusion took place as an inpatient), 20 November 2013, 11 December 2013, 6 June 2014, 7 July 2014 and August 2014.
[46]Exhibit K
41 The plaintiff was then reviewed at the request of the plaintiff’s solicitors on 9 May 2016. On this last occasion the plaintiff reported persistent pain in his lower lumbar spine with occasional left buttock and left leg pain. The back pain was said to be the dominant problem. Medication included Palexia 20 milligrams three times per day, gabapentin 600 milligrams three times per day, and Valdoxan at night time. On examination, the plaintiff had general good mobility but was markedly tender in the L5 region. The MRI results from 8 October 2007 were repeated, and then Dr Thomas had to hand the MRI of 10 March 2016. He reported:
“This revealed degenerative disc disease at L3‑L4, L4‑L5, more so than L5‑S1. There was marginal reduction of disc height at L4‑L5 and minor reduction of disc height at L3‑L4. No evidence of any neurological compromise.”[47]
[47]Exhibit K, PCB 70C
42 Dr Thomas’ opinion was expressed as follows:
“Mr Papadimitriou is a 33-year-old man who has predominantly chronic lower lumbar spine pain. The initial investigations showed fairly minor, almost normal, MRI. This more recent MRI shows degenerative disc disease, mainly at L3‑L4 and L4‑L5 with loss of disc height at both. I think it is reasonable to indicate that the discs in his lumbar spine at L3‑L4 and L4‑L5 have been involved in the development of his pain in his back as a consequence of the event at work on 13 September 2007. He reported that the injury occurred when he was lifting a drum of cable, weighing approximately 100 kg. This would certainly be enough if the lift was done in a non-ergonomic manner, to sustain injury to the discs at least of one level and, in this case, probably two.
I would accept that there is an organic component to his presentation.
I would accept that his condition has stabilised.
I would accept that he does have a physical impairment and injury to his back. I would accept that he has difficulty bending, lifting and twisting below waist height and above chest height. He had difficulty kneeling, squatting or crouching.
I would place a 5 kg frequent lift limit on him between waist and chest height. He would need to be in a position that was ergonomically appropriate for him. He would need to alter his posture frequently. I think within this limitation, he could work up to 18 hours per week.
As far as preinjury work duties are concerned, as a consequence of the physical injury and impairment, he cannot return to his preinjury work duties. This is permanent.
...
Purely from a physical impairment perspective of your client’s back, I think he does have working capacity to perform suitable employment. In a purely sedentary position, I think he does have working capacity. I have indicated in a lifting capacity of 5 kg, he could work up to 18 hours per week. In a purely sedentary position in which he had the flexibility to alter his posture frequently, I think he could work up to 22 hours per week.
...
The prognosis is poor. Increased degenerative disc disease is likely given the lower lumbar spine. This will continue. Surgical intervention will likely not help here. In view of the nonorganic component, a more conservative approach to treatment needs to be adopted.”[48]
[48]Exhibit K, PCB 70C
43 If I were to accept this opinion at face value, I would consider there is a prima facie case made out by the plaintiff that he is suffering chronic back pain as a consequence of the aggravation of degenerative disc disease at least at two levels in his lumbar spine, such that on a purely physical basis, he would be fit for no more than 22 hours per week of sedentary-type work, which roughly accords to a 57.89 per cent working capacity assessed on a physical basis, compared to 38 hours per week employment. Senior Counsel for the plaintiff submits this analysis would entitle the plaintiff to obtain the necessary leave pursuant to s134AB(38)(e)(ii) of the Act, in that a worker under the age of 26 had shown a loss of earning capacity of 40 per cent or more.
44 Dr Ingram, in his most recent report of 21 February 2016,[49] has recited:
“At no stage since 2007 has any investigation revealed a diagnosis.”[50]
[49]Exhibit F, PCB 59A
[50]Exhibit F, PCB 59A
45 Although he ordered the subsequent MRI scan of the lumbosacral spine dated 10 March 2016, there is apparently no follow-up report from him with respect to same. In any event, in the earlier report referred to, he stated that his working diagnosis was one of:
“... musculoligamentous back pain (for which there is no test/investigation to demonstrate the problem). Also it is impossible to separate the physical from the psychiatric element of his condition.”[51]
[51]Exhibit F, PCB 59B
46 Nonetheless, he further reported:
“As a result of Mr Papadimitriou’s chronic severe musculoligamentous back pain he is capable of only very limited bending, pushing, pulling, lifting, overhead work, kneeling, squatting, crouching, prolonged sitting, walking or standing; for the foreseeable future.
Mr Papadimitriou has no capacity to perform his pre-injury duties for the foreseeable future. As a consequence of Mr Papadimitriou’s psychiatric medical condition he has no capacity to perform his pre-injury duties for the foreseeable future.
Mr Papadimitriou may, considering his physical injuries, be able to undertake some light work part-time, of a sedentary nature. However this comment must be taken in context with what follows. Mr Papadimitriou as a consequence of his psychiatric condition does not have the capacity to undertake any employment.”[52]
[52]Exhibit F, PCB 59B
47 In my view, on the face of this report, Dr Ingram has disentangled the physical from the psychiatric, in that the physical injuries enabled the plaintiff to undertake some light part-time work, whereas the psychiatric condition renders him totally incapacitated.
48 The only medical practitioner retained by the defendants to see the recent MRI was orthopaedic surgeon, Mr Michael Dooley, who reported on 14 July 2016.[53] Mr Dooley recited, with respect to that MRI:
“It reports degenerative disc abnormalities at the L3/4, L4/5 and L5/S1 levels. It notes minor posterior central disc bulging at the lumbosacral level, eccentric to the right but not displacing the right S1 nerve root in the lateral recess. There is no evidence of focal disc herniation in the low lumbar spine and the scan reports that there is no convincing evidence of compressive radiculopathy etc. I believe that the scan essentially shows degenerative disc changes. ... In Professor Bittar’s report [medico-legal neurosurgeon for the plaintiff] it is noted that Mr Papadimitriou describes some pain felt in the left buttock and posterior thigh. This may be referred pain from the lumbar spine region. I do not believe that it is radicular type pain.”[54]
[53]Exhibit 14
[54]Exhibit 14, DCB 89A
49 Mr Dooley’s overall view was:
“I remain of the view that the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for his organic condition. In my view the reason for his disproportionate pain is his psychological reaction to his situation. I remain of the view that Mr Papadimitriou does not have a physical capacity to carry out his preinjury work but that he does have a physical capacity to carry out light physical work and clerical duties.”[55]
[55]Exhibit 14, DCB 89A
50 This opinion would seem to align with that of Dr Ingram and Dr Thomas referred to above.
51 The defendants had also earlier referred the plaintiff to occupational physician, Dr Michael Bowles, who reported on 26 September 2009.[56] Dr Bowles considered that the MRI of 25 July 2008 showed broad-based bulging at L4‑5 and L5‑S1.[57] His overall opinion was that the plaintiff presented with chronic back pain but that overall, he did not have a specific diagnosis for his presentation. He considered the plaintiff:
[56]Exhibit 9
[57]Exhibit 9, DCB 69
“... may have some underlying mechanical backache but this is clouded by issues of exaggeration and functional overlay.
Employment would still be viewed as a material contributing factor.
In my opinion Mr Papadimitriou has a capacity for suitable employment in relation to sedentary and light manual work, initially three hours per day, four days per week.
Incapacity would be viewed as the result of the injury sustained.
The rehabilitation program is considered to be reasonable. I do not know whether it will be beneficial though I suspect it will not.”[58]
[58]Exhibit 9, DCB 69
52 Further in his report he stated:
“Mr Papadimitriou did appear to sustain an injury in terms of a back strain. ... There did not appear to be evidence of non-work related factors contributing to the condition. ... There was functional overlay with non-organic features present.”[59]
[59]Exhibit 9, DCB 70
53 Although Dr Bowles considered the plaintiff was fit for pre-injury employment, there were restrictions which included:
“... no repetitive back bending, lifting more than 5kg with pause and posture breaks every half an hour. I would also restrict hours to three per day, four days per week initially. ... It is likely Mr Papadimitriou will be able to increase hours and return to pre-injury duties at some stage. I cannot predict when this may be the case as other issues would determine those outcomes. Interventions and initiatives include a willing employer and appropriate duties.”[60]
[60]Exhibit 9, DCB 71
54 Finally, he considered that the prognosis was poor:
“There appears to be reported worsening of the state of Mr Papadimitriou’s back complaint. No progress appears to be made. In my opinion court action is also a negative prognostic feature.”[61]
[61]Exhibit 9, DCB 72
55 The only other practitioners to reflect on the recent MRI scan of 10 March 2016 were neurosurgeon, Professor Richard Bittar, who reported on 27 April 2016,[62] and Dr Helen Sutcliffe, occupational physician, in a report dated 16 June 2016.[63]
[62]Exhibit M
[63]Exhibit N
56 Professor Bittar reported on 27 April 2016. He is a clinical Professor at Deakin University and a practising neurosurgeon in Victoria and Tasmania. He holds a PhD in functional neuroimaging. He took a relevant consistent history, and noted that the current symptoms were:
“... constant lower back pain, which he describes as varying in character between a deep ache and sharp pain. ...
He experiences intermittent lower back pain, which radiates into his left buttock and hamstrings.”[64]
[64]Exhibit M, PCB 73B
57 Current medications included Palexia, Neurontin and Valdoxan. Examination revealed:
“... moderate restriction of lumbar spine flexion and extension with both being painful. He had bilateral lumbosacral paravertebral tenderness, worse on the left-hand side. Straight leg raising was normal and there was no evidence of radiculopathy.”[65]
[65]Exhibit M, PCB 73C
58 Professor Bittar reviewed the MRI of 8 October 2007 and stated that it demonstrates disc protrusions at L4‑5 and L5‑S1 with right-sided foraminal disc bulging at L3‑4. He also reviewed the MRI performed on 10 March 2016. He stated:
“This demonstrated desiccation of the L3/4 and L4/5 intervertebral discs with a small disc prolapse at L5/S1 causing right-sided subarticular stenosis.”[66]
[66]Exhibit M, PCB 73C
59 His diagnosis was as follows:
“1. Aggravation of lumbar spondylosis/lumbar intervertebral disc prolapse.
2. Chronic pain syndrome.”[67]
[67]Exhibit M, PCB 73C
60 As to causation, he stated:
“In my opinion his employment has been a significant contributing factor. Specifically, the injury, which occurred at work in September 2007 remains a significant contributing factor to his ongoing pain, disability and requirement for treatment.”[68]
[68]Exhibit M, PCB 73C
61 As to the plaintiff’s work capacity, he stated the plaintiff did not have any realistic capacity to return to his pre-injury duties, nor did he have any realistic capacity for suitable duties:
“In my opinion his total incapacity for work is permanent.”[69]
[69]Exhibit M, PCB 73C
62 In terms of prognosis, Professor Bittar thought it likely that the plaintiff would continue to suffer from significant pain and disability into the foreseeable future.[70]
[70]Exhibit M, PCB 73D
63 Finally, he stated:
“As a consequence of the physical injury and impairment of his back (excluding any psychological or psychiatric condition), it is my opinion that he is likely to be severely restricted in relation to social, domestic and recreational activities.”[71]
[71]Exhibit M, PCB 73D
64 Occupational physician, Dr Helen Sutcliffe, provided two reports dated 4 January 2016 and 16 June 2016.[72] In the latter report she commented specifically on the MRI taken on 10 March 2016. The MRI confirmed her previous opinion that the plaintiff had:
“... sustained disc derangement at L4/5 and L5/S1 with persisting discogenic pain and initial left leg pain. The left leg pain has since resolved.”[73]
[72]Exhibit N
[73]Exhibit N, PCB 82
65 Further, she considered the plaintiff presented as:
“... incapable of undertaking employment taking into account his age, education, past work experience and the nature of the condition.”[74]
[74]Exhibit N, PCB 81
66 Dr Sutcliffe had also noted the plaintiff had developed depressive symptoms on a background of Attention Deficit Disorder which had been untreated for a period and continued now to require treatment.[75] She considered that he was incapacitated both on account of his physical condition and his psychiatric condition when considered separately.[76]
[75]Exhibit N, PCB 81
[76]Exhibit N, PCB 83
67 For completeness, the defendants also had the plaintiff examined by orthopaedic surgeon, Mr Clive Jones, who reported on 25 February 2014.[77] The only investigation available to him was the MRI made on 11 October 2010. He considered this showed:
“... very mild degenerative change at the L4‑5 disc, with some minor loss of hydration, but no disc protrusion.”[78]
[77]Exhibit 13
[78]Exhibit 13, DCB 80
68 Mr Jones considered that there appeared to have been a “straining injury to the lower back”.[79] He considered that the back stiffness, on examination, was substantially exaggerated, and his current diagnosis was “Much exaggerated low back pain”.[80] He considered the prognosis to be in general terms poor. He stated:
“The presence of chronic pain is a predictor of poor improvement.”[81]
[79]Exhibit 13, DCB 80
[80]Exhibit 13, DCB 81
[81]Exhibit 13, DCB 82
Analysis
69 The overall thrust of the medical evidence would appear to demonstrate that the plaintiff had suffered an aggravation of degenerative disc disease at two, perhaps three, levels of his lumbar spine as a result of the injury in his employment, from which he has suffered chronic pain, and which has left him unfit for his pre-injury duties, and only fit on a physical basis for lighter duties up to 22 hours per week. As stated above, this would entitle him to leave to commence proceedings for economic loss on a prima facie basis.
70 Senior Counsel for the defendants has submitted that this prima facie case is severely compromised because of issues to do with the plaintiff’s credit. In particular, she alleged he has deliberately misled the Court as to the fact of and the consistency of the ingestion of illicit drugs, in particular cannabis, since his injury, such that the supporting medical practitioners’ opinions are rendered unreliable because the doctors have either been misled or misinformed as to the plaintiff’s histories and motivations.[82]
[82]See Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458
71 Alternatively, it submitted that the histories provided by the plaintiff had, in any event, sufficiently misled the medical practitioners such that their supporting opinions were unreliable.[83]
[83]See Dordev v Cowan [2006] VSCA 254
72 As a consequence, it is submitted that the Court cannot be satisfied of the level of the plaintiff’s incapacities particularly with respect to employment because of his preparedness to mislead the court in this regard.
73 There is some force to Counsel’s submission. The plaintiff at first denied any drug use since 2009, and then conceded later in cross-examination that he was an “irregular” partaker of cannabis up until the present time. Naturally the ingestion of these drugs, and the preparedness not to be frank with respect to same, does cast doubt on the plaintiff’s credit and motivation to return to work. It also goes to his overall truthfulness and reliability.
74 I am satisfied that the plaintiff has a physical, organic basis for the pain, which, on a physical basis, renders him incapacitated to a significant degree on account thereof. Having seen him in the witness box and formed an overall impression of him, I tend to view his demeanour in light of the comment made by Dr Tan that the back pain led him to become “frustrated, angry, depressed and anxious when he realised he could no longer function at the physical level which he had before”.[84]
[84]Exhibit O, PCB 87
75 That being said, I am also mindful of the comments of Kirby J in Whisprun Pty Ltd v Dixon,[85] where his Honour stated:
“Lies and civil proceedings: Some judges in the past regarded untruthful evidence – even about peripheral or irrelevant matters – as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from – or even contrary to – that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.”
[85][2003] HCA 48 at [119]–[120]
76 The sum total of the credit issues in this case has perhaps led me to look more carefully at corroborating evidence in trying to assess whether the plaintiff has discharged his onus of proof with respect to the consequences flowing from the physical injury; and the medical opinions, particularly with respect to the recent MRI scan, particularly come to the fore.
77 Accordingly, it appears to me that the appropriate template to follow is that set down by the President of the Court of Appeal in Meadows v Lichmore Pty Ltd[86] at paragraphs 21 to 24. At paragraph 21, his Honour stated:
“As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”
[86]Supra
Findings
78 I consider that the plaintiff has discharged the onus of proof to the extent that he suffers an ongoing discal injury at least at two levels of the lumbar spine and perhaps three levels, as a result of the subject work injury.
79 I consider that the evidence discloses that although there is a superimposed psychological reaction, the physical injury itself, when “disentangled” from the psychological consequences, nonetheless renders the plaintiff significantly incapacitated for suitable work, and that his capacity is something less than 22 hours per week.
80 Thus I find the plaintiff is entitled to issue proceedings for economic loss, and in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle[87] at paragraph 63–64, the plaintiff is entitled to issue proceedings for pain and suffering as well.
[87][2009] VSCA 170
81 I will hear the parties as to any consequential orders.
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