Papamanos v Commonwealth Bank of Australia
[2014] VSCA 167
•7 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0166 | |
| ELEFTERIA PAPAMANOS | Appellant |
| v | |
| COMMONWEALTH BANK OF AUSTRALIA | Respondent |
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JUDGES: | HANSEN and BEACH JJA, GARDE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2014 | |
DATE OF JUDGMENT: | 7 August 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 167 | |
| JUDGMENT APPEALED FROM: | Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 (Judge O’Neill) | |
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ACCIDENT COMPENSATION – Appeal – Serious injury – Alleged impairment of function of cervical spine – Alleged permanent severe mental or permanent severe behavioural disturbance or disorder – Need to disentangle physical and psychiatric injuries and consequences – Credit of the worker – Reasons – Whether consequences of psychiatric injury severe – Whether consequences of psychiatric injury may be fairly described as being more than serious to the extent of being severe – Assessment by the judge on the whole of the evidence – Accident Compensation Act 1985, ss 134AB(37) and 134AB(38)(c), (d), (h) and (i).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P A Jewell QC with Mr G K Coldwell | Advice Line Lawyers |
| For the Respondent | Mr M F Wheelahan QC with Mr M J Hooper | Minter Ellison |
HANSEN JA
BEACH JA
GARDE AJA:
Introduction
Elefteria Papamanos, the appellant, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries suffered in the course of her employment with the respondent, the Commonwealth Bank of Australia. The application was heard in the County Court by Judge O’Neill on 17 October 2013.
The appellant alleged that she sustained an injury to her neck and a consequential psychiatric condition arising out of or during the course of her employment with the respondent from 20 October 1999 until 15 May 2009. In her application, the appellant relied upon an impairment of the function of her cervical spine as satisfying paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act, and a chronic pain syndrome with an adjustment disorder as satisfying paragraph (c) of that definition. The application was made in respect of both pain and suffering damages and pecuniary loss damages.
On the hearing of the application, the appellant relied upon affidavits she swore on 19 October 2011 and 17 January 2013, and an affidavit sworn by her husband, Thrasivoulos Papamanos, on 17 January 2013. The parties tendered various documents, including medical reports, radiology reports, vocational assessment reports, WorkCover documents and surveillance video film taken of the appellant on 30 September and 2 October 2013.
The appellant was the only witness to give viva voce evidence. No other witnesses were required by the parties for cross-examination.
On 25 October 2013, eight days after the conclusion of the hearing, Judge O’Neill gave judgment dismissing the appellant’s application.
The appellant’s complaints
While in her notice of appeal the appellant states that she appeals from the whole of the judgment below, in fact this appeal was confined to complaints concerning the judge’s dismissal of the appellant’s application made pursuant to paragraph (c) of the serious injury definition. That is, on this appeal, the appellant challenges the judge’s failure to find that she had sustained a permanent severe mental or permanent severe behavioural disturbance or disorder arising out of the course of her employment with the respondent between 20 October 1999 and 15 May 2009.
At the hearing of the appeal we gave the appellant leave to amend her grounds of appeal. The appellant’s amended grounds of appeal are as follows:
1.His Honour erred in concluding that the Appellant did not have a serious injury within the meaning of paragraph (c) of the definition of “serious injury” in section 134AB(37) of the Accident Compensation Act 1985 (“the Act”) and should have concluded that the Appellant did in fact have a serious injury within the meaning of that paragraph of the definition.
2.His Honour erred in making credibility findings adverse to the Appellant by:
(a)assessing the Appellant’s credit by reference to only part of the evidence and not by reference to the whole of the evidence;
(b)assessing the Appellant’s credit against a misapprehension of the evidence relating to the frequency of post injury caravan trips and failing to take proper account of the evidence concerning the Appellant’s restrictions on such trips;
(c)assessing the Appellant’s credit on the basis of inconsistent use or misuse of very brief video surveillance evidence;
(d)assessing the Appellant’s credit against a misapprehension that the surveillance evidence demonstrated that:
(i)the Appellant was able to move her neck without significant restriction; and
(ii)the Appellant’ neck and arm movements were inconsistent generally with her presentation in the medical examinations.
3.His Honour failed to decide all that was necessary to be decided concerning the impact of the chronic pain syndrome condition on the Appellant’s earning capacity, and in the process of determining that question, His Honour misapprehended the effect of the evidence as a whole concerning the impact of the chronic pain syndrome on earning capacity, and failed to give adequate reasons for the non acceptance of the evidence of psychiatrists’ Weissman and Strauss on that question.
4.His Honour erred in the determination of the case for serious injury based on severe mental disturbance or disorder by:
(a) misapprehending the effect of the evidence on that issue;
(b)misusing medical evidence directed to the assessment of physical injury impairment to support a capacity to work from a mental perspective;
(c)misusing the early opinion evidence of Dr Entwisle of a psychiatric capacity to work in 2009 in support of a mental capacity to work in 2013 when by then the Appellant’s psychiatric state had worsened to create psychiatric incapacity;
(d)failing to allocate and provide adequate reasons generally and in particular for the non acceptance of Drs Strauss and Weissman, psychiatrists, together with Dr Haddad and Mr Yiolitis, psychologist, relating to their later opinions of the Appellant’s psychiatric incapacity for work.
Background facts
The background facts to this appeal may be briefly stated as follows. The appellant was born on 16 February 1960 and at the time of hearing was 53 years old. She lives with her husband and her three youngest children. She also has two older children who no longer live with her.
In 1988, the appellant obtained employment with the respondent as a teller. She eventually became a customer service specialist. From 2000 the appellant worked at the respondent’s Watergardens branch as a customer service specialist.
The appellant deposed that, following complaints made by her concerning cold air being blown directly onto her neck from air conditioning vents, she developed symptoms in her neck and shoulders while at work in October 2006. She attended a physiotherapist at that time and the symptoms settled after a couple of months. The appellant deposed that she developed more severe symptoms in her neck and arms (in particular her left arm) while at work in September 2007. She attended her GP, a physiotherapist and then a neurosurgeon. The appellant made a claim for compensation dated 24 September 2007, and signed by the respondent on 1 October 2007. The claim was accepted by the respondent and the appellant received weekly payments of compensation for time off work and reasonable medical and like expenses. Her entitlement to weekly payments was terminated by letter dated 2 September 2011.
The appellant deposed that she had ‘a near collapse’ at work when she felt faint and had neck pain on 21 April 2008. She then took one month off work before returning to modified duties and reduced hours. The appellant then took long service leave in June 2008 and travelled to Greece. From September 2008, and over the next eight months, the appellant worked reduced hours and performed modified duties. On 15 May 2009, the respondent terminated the appellant’s employment. As at the date of termination the appellant had been working three hours per day on Mondays, Wednesdays and Fridays. The appellant has not worked since 15 May 2009.
The appellant first attended her general practitioner, Dr Haddad, on 10 September 2007. She returned to Dr Haddad in November 2007 complaining of severe neck and left arm pain and was referred for a CT scan which showed moderate degenerative disc disease at C6-7 without focal protrusion and left C6-7 foraminal stenosis.
In November 2007, Dr Haddad referred the appellant to Mr Han, neurosurgeon, who referred the appellant for an MRI scan. This noted congenital spinal canal stenosis at C5-6 and moderate to severe C6-7 foraminal stenosis. Dr Haddad arranged a further MRI scan of the neck in September 2008 which showed multi-level intervertebral disc space degenerative disease without nerve root compromise. There was moderate left C6-7 neural exit foraminal compromise. Mr Han did not recommend surgery. In December 2008, Dr Haddad referred the appellant to Mr Brendan O’Brien, neurosurgeon. Mr O’Brien did not recommend surgery. In January 2009, the appellant was referred to Dr Clayton Thomas who recommended that the appellant participate in a pain management program which she completed.
In July 2009, Dr Haddad considered the appellant was suffering depression. The appellant was prescribed the antidepressant Pristiq however she ceased taking this medication in August 2009 because of adverse side effects. In January 2010, Dr Haddad referred the appellant to a psychologist, Mr Lewi Yiolitis. The appellant has been regularly treated by the psychologist since that time. In addition to this treatment, the appellant has also received treatment by way of remedial massage, physiotherapy and hydrotherapy.
As at February 2010, Mr Yiolitis was of the view that the appellant’s then current level of physical pain appeared to be her major obstacle to returning to any form of work. As at October 2013, Mr Yiolitis noted the appellant’s reports of ‘mild to moderate psychological anxiety about current predicament, and the upcoming court case’. Mr Yiolitis thought that should the appellant’s pain issues abate or resolve to a reasonable extent then she might return to work.
In February 2012 and August 2013, the appellant was examined by Dr David Weissman, a consultant psychiatrist. Following his first examination, Dr Weissman diagnosed a chronic adjustment disorder with depressed and anxious mood of mild to moderate intensity or severity. He said that when one considered this diagnosis there was ‘most probably no psychiatric incapacity for work’. After Dr Weissman’s second examination Dr Weissman expressed an opinion which he said was based upon a consideration of all of the medical and surgical reports with which he had been provided. Dr Weissman said:
Once again, on purely psychiatric grounds alone, purely in terms of Ms Papamanos’s chronic adjustment disorder with depressed and anxious mood, I cannot say that there is any pure (psychiatric) incapacity for work. …
Once again, it is a much more complex issue to discuss Ms Papamanos’s work capacity when one also includes the diagnosis of her significant chronic pain disorder. Based upon Ms Papamanos’s presentation, her reported pain, her apparent pain, her elevated health concerns, somatic symptoms, pain focus and pain preoccupation, as well as the way in which she became tearful, distressed, emotional and labile during the latter half of the interview, it appears that she does not have a capacity for any work.
…
When one considers Ms Papamanos’s entire presentation, including her emotional state and physical state, her overall prognosis would seem to be quite uncertain and guarded and her overall prognosis would seem to be relatively poor, negative and unfavourable.
Overall, I would suggest that Ms Papamanos is suffering from at least a mild to moderate group – and closer to a moderate group – of (work related) psychiatric conditions and mental injuries. This is obviously a complex case.[1]
[1]Emphasis in original.
In August 2012, the appellant was examined by another psychiatrist, Dr Nigel Strauss.[2] During this examination, Dr Strauss expressed the opinion that the appellant had ‘developed psychiatric problems and she has a pain disorder associated with a medical condition and psychological factors and she has a mild adjustment disorder with mixed anxiety and depressed mood’. Dr Strauss stated that the appellant’s pain was ‘both psychologically and organically based’. He went on to say that the appellant could work five to 10 hours a week in a simple clerical job if she could move around frequently and rest as required. He said this ‘partial incapacity from a psychiatric point of view may be work related if her physical problems are work related’.
[2]The appellant had also been examined by Dr Strauss in October 2008 at which time Dr Strauss expressed the opinion that from a psychiatric point of view he had no evidence to suggest that the appellant had developed a psychiatric reaction to her physical problems.
While there were a myriad of other medical opinions expressed about the appellant in reports tendered before the judge (and to which we will make reference below), having regard to the appellant’s grounds of appeal, it is not necessary to canvass those opinions at this stage.
The case below
As was noted by senior counsel for the appellant,[3] the judge was required to analyse the reports and opinions of some 20 medical practitioners. These medical practitioners included the appellant’s general practitioner (Dr Haddad), occupational physicians, neurosurgeons, orthopaedic surgeons, psychiatrists, psychologists and a rheumatologist. Some of the medical reports were confined to purely physical matters, others to matters of a psychological nature and others to a combination of physical and psychological matters. One matter not in dispute between the parties is that the medical evidence did not speak with one voice.
[3]Who did not appear on the application below.
In her application before the judge the appellant took on the burden of attempting to establish that she had sustained a physical injury, the consequences of which could be fairly described as being ‘more than significant or marked, and as being at least very considerable’.[4] She also took on the burden of attempting to establish that she had sustained a mental or behavioural disturbance or disorder, the consequences of which could fairly be described as being ‘more than serious to the extent of being severe’.[5]
[4]Section 134AB(38)(c) of the Act.
[5]Section 134AB(38)(d) of the Act.
In considering the appellant’s application based upon physical consequences (the paragraph (a) part of the appellant’s application), the Court was required to disregard any psychological or psychiatric consequences of the appellant’s alleged physical injury.[6] Similarly, in considering the appellant’s application based upon an alleged mental or behavioural disturbance or disorder (the paragraph (c) part of the appellant’s application), the Court was required to disregard any physical consequences of the mental or behavioural disturbance or disorder.[7] In the circumstances, the application before the judge raised the question of whether it was necessary (and if so then to what extent it was necessary) to disentangle physically based consequences from psychologically based consequences.[8]
[6]Section 134AB(38)(h) of the Act.
[7]Section 134AB(38)(i) of the Act.
[8]See MutualCleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 [24]–[29]; Meadows v LichmorePty Ltd [2013] VSCA 201 [19]–[22]; and Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67.
The appellant’s principal focus before the judge was on the consequences of her alleged physical injury. This part of the case was opened by her counsel in some detail. In contrast, the psychiatric aspect of the appellant’s application was opened very briefly in the following terms:
In addition and separately, the plaintiff has sustained a psychiatric injury which is summarised by the relevant psychiatrists and is causing in my submission problems that would equate to a paragraph (c), severe behavioural mental disturbance and those problems are on top of the physical injury to the neck.
The focus of the appellant’s case was even clearer in final addresses. Counsel for the appellant took the judge in some detail through the medical evidence supportive of the appellant’s case that she was suffering from a physical and organically based injury which had resulted in a permanent serious impairment. Counsel for the appellant submitted to the judge:
It’s not a situation where your Honour should have any hesitation in my submission of accepting that there is an organic basis to the restrictions.
Having dealt with those parts of the medical reports that supported an organically based injury, counsel for the appellant then tied the loss of earning capacity required by s 134AB(38)(e) in order for the appellant to obtain leave to claim pecuniary loss damages, to the contended for physical injury.
Counsel for the appellant’s address then moved to the psychiatric part of the claim. The only submissions made by the appellant in final address concerning psychiatric matters were as follows:
COUNSEL FOR THE PLAINTIFF: There are some opinions that I will refer to briefly from the psychiatrists in relation to additional incapacity that I will take your Honour to.
HIS HONOUR: Is it really a psychiatric case? There is no psychologist[9] treating her, there is no medication, no hospitalisation, I haven’t read all the reports so my impression is only fairly vague at this stage but unless I fail to accede to the physical question and then accept there is a major pain syndrome or something of that sort which can be considered under paragraph (c), it seems to me it’s a difficult case, paragraph (c).
COUNSEL FOR THE PLAINTIFF: My primary submission is that the physical restrictions the plaintiff complains of all have an organic basis and they come under paragraph (a). If your Honour had any concerns about that which I would submit you shouldn’t have, and you thought there was a psychiatric explanation then Dr Strauss and Dr Weissman both provide their comments in that regard, but in my submission this is a case where your Honour should find serious injury under paragraph (a) and you really don’t have to turn your mind to whether it comes under (c), it is predominantly a paragraph (a) case, your Honour.
[9]While the transcript records the judge as saying ‘no psychologist’, given that the appellant was being treated by the psychologist Mr Yiolitis, and given that counsel for the appellant below did not seek to correct the judge’s statement, it is more likely that the judge in fact referred to the more significant matter of the appellant not having had any psychiatric treatment. In any event there was no issue about this matter on this appeal.
The judge’s reasons
After dealing with introductory matters in his reasons for judgment,[10] the judge then dealt with the appellant’s background, her injury and the consequences of the appellant’s injury. In these sections of the reasons, his Honour summarised relevant aspects of the appellant’s evidence. His Honour then summarised the medical evidence in some detail.[11] The medical evidence included various opinions from different medical practitioners, expressed at different points in time. The range of opinions included that:
[10]Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 (‘Reasons’).
[11]Reasons [27]–[51].
(a) the appellant has a chronic pain syndrome secondary to degenerative disease in her cervical spine, and also suffers from reactive depression;
(b) the appellant has suffered a pain syndrome likely to be fibromyalgia;
(c) the appellant has suffered a mild to moderate reactive depression and anxiety syndrome, constituting a chronic adjustment disorder with depressed and anxious mood of mild to moderate severity;
(d) the appellant suffered from a C6-7 disc protrusion and had developed a chronic pain syndrome in the neck and both shoulders;
(e) the appellant’s symptoms in her cervical spine were likely due to musculo-ligamentous strain and aggravation of underlying degenerative disease with a probable disc injury at C6-7 and also a chronic pain syndrome and anxiety and depression;
(f) the appellant suffered a significant adjustment disorder with depressed and anxious mood in relation to her response to physical symptoms;
(g) the great majority of the appellant’s symptoms were coming from cervical spondylosis with secondary paraspinal muscle spasm;
(h) the appellant suffered from an aggravation of foraminal stenosis at C6-7;
(i) the appellant was suffering neck pain which had developed into a chronic pain syndrome;
(j) the appellant had suffered an aggravation of degenerative changes in her cervical spine, which had been complicated by psychological issues, thus amplifying her pain;
(k) the appellant had developed a pain disorder and a mild adjustment disorder with mixed anxiety and depressed mood; and
(l) the appellant suffered a myofacial problem which was unrelated to her work and non-physical factors played a substantial role.
The judge then dealt with the credibility of the appellant in the following terms:
Various of the medical reports refer to the plaintiff as a genuine and credible historian, and others considered she was exaggerating her symptoms, and displaying signs of illness behaviour. Surveillance film of the plaintiff of 30 September and 2 October 2013 was shown. The plaintiff was seen to be interacting with her family in various ways. At her home, she directed her husband to back a large white caravan into their front yard. The plaintiff was able to move her neck without significant restriction. On another occasion, she appears to walk across a road without any impediment, and bend into her car on several occasions. Generally, she was able to move her neck and arms in a relatively free manner inconsistent generally with her presentation in the medical examinations and to the Court. In the course of giving her evidence, she held her neck in a rigid position, regularly standing and sitting. Likewise, when her evidence was concluded, she paced up and down at the rear of the Court for a period, with her neck held fixed and giving the impression of being in significant discomfort. I formed the view that her behaviour in the Court was an attempt to show the seriousness of her pain and restriction.
At the conclusion of her cross-examination, I suggested to the plaintiff that it seemed to me that she was able to move her neck a little better in the film than her presentation in Court. She said that some days were better than others.
On behalf of the defendant, Mr Simpson admitted the plaintiff had been the subject of surveillance over a very considerable period of time from October 2012 until October 2013, something in excess of 60 hours of observation. This, like any video surveillance, should be seen in the context of representing only a very brief excerpt from the plaintiff’s life. It is reasonable to infer that during the other periods of observation, the plaintiff was not moving in a manner inconsistent with her affidavit and medical histories.
However, I did form the conclusion that her neck movement shown in the surveillance was inconsistent with her presentation to the doctors and to this Court. These inconsistencies cannot be explained on the basis that her neck is better on some days than others. Further, the plaintiff’s capacity to participate in regular caravan trips with her family is inconsistent with her claims of pain and restriction. As a consequence, I do have reservations in accepting that her pain and restriction is as severe and as constant as she would have it.[12]
[12]Reasons [52]–[55] (footnote omitted).
The judge then analysed the medical evidence, expressing himself to be satisfied from the bulk of the medical opinion that the appellant suffered degenerative disease in her cervical spine prior to 2006 which was asymptomatic. The judge noted that with few exceptions, the various medical practitioners referred to the appellant as suffering a chronic pain syndrome. His Honour then said:
While I accept the plaintiff did aggravate the underlying disease in the course of her work duties, I am satisfied that her current presentation has been overwhelmed by a psychologically-based Chronic Pain Syndrome. As many practitioners point out, the radiology shows moderate changes without focal disc prolapse and without any confirmed neurological signs.
As I understand a Chronic Pain Syndrome, it arises as a result of psychological features which amplify the pain and the restriction which a person may feel. On the one hand, a person may have an honest belief that he or she is suffering pain and restriction which has a psychological rather than a physical basis. On the other hand, there may be an intended exaggerated response in the nature of abnormal illness behaviour. In considering the issue, I am satisfied that there is an element of abnormal illness behaviour, or embellishment given the presentation of the plaintiff in the surveillance film, where it appeared she was able to move her neck in a relatively unrestricted manner.[13]
[13]Reasons [63]–[64].
The judge then dealt with the appellant’s application under paragraph (a) of the serious injury definition. In rejecting the appellant’s application under paragraph (a), his Honour said:
Apart from the opinions of Messrs Han and O’Brien, and the early opinion of Mr Nye, none of the medical practitioners who have examined the plaintiff at the request of her solicitors have made a clear assessment of the extent to which the consequences of the neck injury of which she complains have, on the one hand, an organic, and on the other hand, a psychological basis. The onus is upon the plaintiff to satisfy the Court to the extent that the application relates to physical injury, that the consequences do have an organic basis. In accordance with the opinions to which I have referred, I am satisfied that the plaintiff’s complaints of pain and restriction are substantially as a result of the Chronic Pain Syndrome and do not have a significant physical genesis.
Without at this stage making a comprehensive assessment of the plaintiff’s work capacity, to the extent that her cervical condition prevents her from working, or restricts her in the areas of employment to which she is suited by age and experience, again I am of the view that the reason for any restriction is due to the Chronic Pain Syndrome, rather than any physical injury.[14]
[14]Reasons [65]–[66].
As we have said, no complaint is made by the appellant about the judge’s dismissal of that part of her application that was based upon paragraph (a) of the serious injury definition.
The judge then turned to the appellant’s psychological condition, and dealt with that issue in the following terms:
In considering the plaintiff’s psychological condition, it is necessary to consider not only the Adjustment Disorder with Anxiety and Depression, as has been referred to by a number of practitioners, but also her Chronic Pain Syndrome. The first matter is to assess the pain and suffering consequences. These include her physical pain and restriction, to the extent that it relates to the psychologically-based Chronic Pain Syndrome, Anxiety and Depression and the other symptoms referred to, in particular by the consultant psychiatrists. Aside from the attendances on the treating psychologist, Lewi Yiolitos, the plaintiff has received little if any psychological treatment. She does not take anti-depressants, although I accept these have been tried on a number of occasions and she has found she has developed side effects. There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word “severe” in the definition of the Act has been held to be a word of stronger force than “serious”.
Dr Weissman, who assessed the plaintiff on behalf of her solicitors, assessed the plaintiff as suffering a Chronic Pain Disorder with psychological factors, together with an Adjustment Disorder of mild to moderate severity. He said, on psychiatric grounds alone, there was no pure psychiatric incapacity for work, although when consideration was given to a Chronic Pain Disorder, taking into account her elevated health concerns, somatic symptoms, pain focus and pre-occupation, as well as her tearfulness, distress and emotional liability, he considered the plaintiff did not have a capacity for any work. A similar conclusion was reached by the general practitioner, Dr Haddad, and Dr Kinloch. Mr Miller said the plaintiff had a capacity for work but with restrictions, and a return to work would be problematic considering the Chronic Pain Syndrome. Dr Kenny said the plaintiff’s work capacity was to be determined by her physical, and not psychiatric, status.
Amongst the defendant’s practitioners, Dr Strauss said the plaintiff had work restrictions from a physical perspective, but from a purely psychiatric view, she was not totally incapacitated, although may be when both psychiatric and physical features are combined. Dr Entwisle said from a psychiatric perspective, the plaintiff had the capacity to perform the various jobs set forth in the vocational report. Dr Fraser and Mr Polke said the plaintiff had the capacity to return to her former duties, with some ergonomic adjustments. Dr Wyatt said the plaintiff had a capacity for a broad range of employment in the banking industry.
Considering the opinions above, and my findings as to the plaintiff’s credibility, from a psychiatric perspective, I am satisfied the plaintiff has a work capacity. There is nothing in her affidavit material to suggest that she has made any attempt to obtain employment since losing her job with the defendant in May 2009. It is clear she takes the view that she has no work capacity for any form of employment. It is difficult to be precise as to the nature and extent of the plaintiff’s work capacity, but I am satisfied that she has the capacity to work in the areas identified by the defendant’s vocational assessors, including as an enquiry officer, receptionist, tourist information officer or retail assistant. I am not satisfied that the plaintiff has proved, as the Act requires, that she has a loss of work capacity of more than 40 per cent. The definition of “suitable employment” requires any assessment of work capacity to take into account a worker’s age, education, skills and work experience, as well as the effects of any injury. I prefer the opinions of those practitioners who conclude the plaintiff does have a work capacity.
Bearing those matters in mind, I am of the view the plaintiff does have a significant work capacity, should she wish to employ it.[15]
[15]Reasons [68]–[72].
Having made the findings set out above, the judge dismissed the appellant’s application for leave to commence a common law proceeding against the respondent.
The appellant’s credit
As Brooking JA noted in Palmer Tube Mills (Aust) Pty Ltd v Semi,[16] in serious injury applications the credit of the applicant is usually of great importance. For so often the opinions of medical witnesses depend on what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing.[17] The present case was a paradigm example of the type of case described by Brooking JA. The credit of the appellant was a matter of critical significance in the determination of her application.
[16][1998] 4 VR 439, 448.
[17]See further, Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1607 [47] and 1609 [60] (Gleeson CJ, McHugh and Gummow JJ).
The appellant attacked the judge’s credit findings on the following bases. First, it was submitted that 19 of the 20 medical experts did not say that there was any conscious exaggeration on the part of the appellant. Secondly, it was said that the surveillance film (which itself was short and only represented a fraction of the total surveillance of the appellant) did not bear out the judge’s conclusions. Under this heading, the appellant submitted that the judge was wrong to conclude that the film showed the appellant moving inconsistently with the way she presented to doctors, and the judge was wrong in his comparison between the film and the way the appellant presented in court during the hearing of the application. Thirdly, the judge was criticised for misstating the appellant’s evidence concerning the frequency of post-injury caravan trips with her family.
It is not to the point that 19 of the 20 medical practitioners whose reports were tendered did not state in terms that the appellant consciously exaggerated her symptoms. It is, of course, a matter for the judge, on the whole of the evidence, to determine what (if any) injury the appellant sustained in the course of her employment. Further, and in any event, a significant number of the medical reports refer to ‘abnormal illness behaviour’, or terms that are analogues of that expression. As the judge noted, chronic pain syndrome is a term that can encompass an intended exaggerated response.[18] Indeed, Dr Kenny (a psychiatrist who examined the appellant on 21 October 2010) stated in his report that the expression ‘illness behaviour’ may in some instances refer to the case of a person who suffers pain and now modifies their life or, in other instances, to a case where a person exaggerates the level and severity of their symptoms.
[18]Reasons [64].
All of that said, it was a question for the judge whether he, on the whole of the evidence, accepted the accuracy and reliability of the appellant’s evidence. This was not a question, the resolution of which was to be delegated to an individual medical practitioner or practitioners; nor was his Honour required to defer to the opinion of any medical practitioner who expressed himself or herself to be satisfied about the genuineness of the appellant. The task for the judge was to evaluate the credibility of the appellant on the whole of the evidence, and then to determine her application on the same basis.
We have watched the surveillance film of the appellant several times. As the judge said in argument, on its own, the film was not ‘killer video’. That said, from the film, one would not know that the appellant suffered from any seriously debilitating neck injury. The film shows the appellant moving her neck in rather unremarkable ways. At one point the appellant appears to turn part of her upper body with her head in a way that might suggest she has some neck stiffness or other limitation of movement. At another point (when the appellant was filmed in a fast food outlet) the appellant’s neck movement appears to be unrestricted.
At the conclusion of the cross-examination, the judge raised what he perceived to be a difference between the appellant’s presentation on the film and the appellant’s presentation in court. The following exchange occurred between the judge and the appellant:
HIS HONOUR: Just one matter, Mrs Papamanos, I accept that the video’s only for short periods of time, five minutes here and five minutes there? - - - Yes.
And regularly in these courts people say some days I’m better than others, if the medication is working I’m better, but in a general sense it seems to me that you seemed to be able to move your neck a little better from those short excerpts of film than you are today in this court? - - - M’mm.
Do you want to comment on that, is that a right observation or wrong observation, what do you want to say about that? - - - Did you start off with some days are better than? Some days are better than, some days are better than. Most days are not and you do have constant pain, you do have restrictions in your movement on that holiday, yes, it was a two day holiday, there were four adults there, I did nothing in preparing any meals or whatever for the family. I did have the opportunity to rest and you do want to enjoy the time because I otherwise don’t enjoy my grandchildren or support my children like I would like to, or as my parents have supported me.
Later during final addresses, the judge interrupted counsel for the respondent saying that he was not happy with the appellant pacing up and down the courtroom and that if the appellant was having difficulties she should go outside as her pacing was distracting. Further on, in the appellant’s counsel’s final address, the judge raised again the difference between the film and the appellant’s presentation in court. The response of the appellant’s counsel to the judge appears to have been an acceptance of a difference, but with a caveat that there was only some 10 or 15 minutes of the film taken by the respondent, and then the making of a reference to some days being better than others.
We see no error in the judge’s description of the film or in the use his Honour made of it in comparing the appellant’s presentation in court with what could be seen on the film. While we may have been slower than the judge to express a conclusion that the appellant’s presentation on the film was inconsistent with her presentation to doctors (on the basis that it is difficult to glean from the written reports of medical examinations precisely how the appellant presented to doctors), in the end, we also see no error in this aspect of the judge’s conclusions. That said, there is simply nothing wrong with the way in which the judge contrasted the film with the judge’s observations of the appellant’s presentation in court.
However, the judge did err in his description of the frequency of the appellant’s post-injury caravan holidays. The judge recorded the appellant’s evidence as being that she would go away with her family about 10 to 12 times a year usually for several days and sometimes for a week. The judge said that the appellant’s capacity to participate in regular caravan trips was inconsistent with her claims of pain and restriction. However, in fact, the appellant’s evidence about camping was that over the last three or four years she estimated she went ‘camping or family holidaying with the van … six, seven or eight times’ per year for a couple of days, the longest trip being a week. While the judge’s misdescription of the appellant’s evidence is unfortunate, in our view, the misdescription is not material to the judge’s conclusions about the credit of the appellant. This was only one small aspect of his Honour’s reasoning, and the conclusion reached by the judge was equally valid whether the number of trips was in the range six to eight a year as it was if the number was in the range 10 to 12.
The resolution of this appeal
In addition to attacking the judge’s credit findings, the appellant made a number of other attacks upon his Honour’s judgment. First, it was submitted that the judge failed to provide adequate reasons for the non-acceptance of the evidence of the psychiatrists Dr Weissman, Dr Strauss and the evidence of the appellant’s general practitioner, Dr Haddad, and the appellant’s treating psychologist, Mr Yiolitis. Specifically, it was submitted that the judge gave inadequate reasons for not preferring the evidence of these four practitioners as to the appellant’s incapacity for work caused by her psychiatric condition.
Secondly, the appellant made complaint that the judge misapprehended the effect of the evidence about the appellant’s psychiatric condition. Thirdly, the appellant submitted that the judge misused medical evidence directed to the assessment of the appellant’s physical injury in support of conclusions he reached in respect of the appellant’s psychiatric incapacity. Fourthly, it was submitted that the judge relied inappropriately on earlier medical evidence (for example a report from the psychiatrist Dr Entwisle in 2009) when later evidence showed that the psychiatric condition was one that was initially less severe but developed in severity over subsequent years. Fifthly, it was submitted that, on the whole of the evidence, the judge was bound to conclude that the appellant suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder.
There is nothing in the appellant’s complaints concerning the adequacy of the judge’s reasons. The judge correctly noted that there were no symptoms or consequences in the present case that are ordinarily seen in psychological disorders at the more severe end of the spectrum. Specifically, there was no relevant hospitalisation, significant psychiatric treatment and medication or evidence of the more serious symptoms of suicidal ideation or attempts or other psychotic symptoms. The judge correctly noted that the word ‘severe’ in paragraph (c) of the serious injury definition is a word of stronger force than the word ‘serious’ in paragraph (a) of that definition.[19] Further, it is to be remembered that the judge was required by s 134AB(38)(d) of the Act to judge the relevant consequences ‘by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as being more than serious to the extent of being severe’.
[19]Section 134AB(38)(d) of the Act.
Having set out the various opinions on which the judge relied, the judge then said that, when combined with his findings as to the appellant’s credibility, he was satisfied the appellant had a significant work capacity should she wish to employ it. The judge’s reasons explain in detail why the appellant lost. A clear path of reasoning is exposed. Essentially, the appellant lost because, in a case where, in order to succeed, the appellant’s evidence needed to be accepted as reliable and accurate, the judge did not accept relevant aspects of her presentation or evidence. To that extent, the present case has significant parallels with Whisprun Pty Ltd v Dixon.[20]
[20](2003) 77 ALJR 1598. See further, Owners of Steamship Hontestroom [1927] AC 37, 47; and Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 [71]-[72].
As to any alleged exiguousness in his Honour’s reasons, the judge’s reasons must be seen in the context of the case argued at first instance. In the application before the judge, the appellant’s counsel paid almost no attention to the alternative (and evidently very much secondary) psychiatric aspect of the appellant’s application. No submissions were made as to findings the judge should make in respect of the evidence touching upon the appellant’s alleged psychiatric condition. To the extent that the appellant submitted to this Court that the judge should have said more about the psychiatric aspect of the appellant’s application, that submission must be rejected having regard to the way in which the case was conducted below.
The appellant criticises the judge for taking the opinions of medical practitioners who said that the appellant had a physical capacity for employment and using those opinions in support of a conclusion that whatever psychiatric condition the appellant suffers from she has a capacity for work. Logically, an opinion as to a physical capacity for work, without more, can say little (if anything) about a psychiatric capacity for work. That said, in our view, the appellant’s criticisms of the judge are misplaced. This was a case where the appellant did little to disentangle the alleged physical injury and its consequences from the alleged psychiatric injury and its consequences. Having regard to the evidence (and in particular the medical opinions expressed in the reports), it was a case where disentangling was required.[21] The appellant, having done little to assist in the disentangling process, cannot now complain about aspects of the judge’s reasoning that deal both with physical and psychiatric matters. These matters were, on the evidence, intertwined in a way that could only have made the judge’s task a difficult one.
[21]See Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 [24]-[29]; Meadows v Lichmore Pty Ltd [2013] VSCA 201 [19]-[22]; and Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67.
The appellant’s case before the judge was primarily one of a physical injury that satisfied the ‘at least very considerable’ test.[22] That case having been rejected by the judge, the appellant now seeks to say that all of the consequences identified in the medical reports (and specifically those identified in the reports of Dr Haddad, Mr Yiolitis, Dr Weissman and Dr Strauss) must be the consequences of a mental or behavioural disturbance or disorder. That submission must be rejected. First, the submission fails to have regard to the credit matters to which we have referred and the fact that the opinions are premised upon an acceptance of the appellant’s presentation and complaints. Secondly, the submission fails to grapple with the intertwined nature of the appellant’s physical and psychiatric conditions and the need to disentangle these matters. Thirdly, the submission fails to deal with the relevance of the appellant’s physical complaints to the opinions ultimately expressed by the four practitioners upon which the appellant now relies.
[22]Section 134AB(38)(c) of the Act.
Having regard to the judge’s findings about the appellant’s credit, it is not necessary to pause further to debate whether the opinions of the practitioners the appellant now relies primarily upon (even if taken in isolation) required the judge to make a finding in favour of the appellant on her application under paragraph (c) of the serious injury definition. While we take leave to doubt the correctness of any such submission for the reasons already given, it is sufficient to say that there was no error in the judge’s approach to the issue of the appellant’s credit and thus the resolution of her application. The judge applied the correct test. While he overstated one aspect of the evidence concerning the number of caravan holidays the appellant has taken per year post-injury, that overstatement does not vitiate the conclusion otherwise well-reached by the judge upon the whole of the evidence.
Conclusion
This appeal must be dismissed.
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