Raeburn v Hamilton Lloyd Fire Protection Pty Ltd
[2012] VCC 1129
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01224
| ANTHONY JOHN RAEBURN | Plaintiff |
| v | |
| HAMILTON LLOYD FIRE PROTECTION PTY LTD | First Defendant |
| and | |
| CGU WORKERS COMPENSATION (VIC) LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 1, 2, 3 and 6 August 2012 | |
DATE OF JUDGMENT: | 24 August 2012 | |
CASE MAY BE CITED AS: | Raeburn v Hamilton Lloyd Fire Protection Pty Ltd and Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1129 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering and loss of earnings consequences – mental or behavioural disturbance or disorder – whether the consequences of injury were more than “serious” to the extent of being “severe” – causation of injury.
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr N Bird | Stringer Clark |
| For the Defendants | Mr P Elliott SC with Mr J Batten | Lander & Rogers |
HIS HONOUR:
1 Anthony Raeburn alleges that he suffered injury in the course of his employment with the first defendant. He seeks the leave of this Court to issue proceedings to recover pain and suffering and pecuniary loss damages in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
5 The term “severe” is to be satisfied by reference to the consequences to Mr Raeburn of any mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity when judged by comparison with other cases in the range of mental or behavioural disturbances or disorders.[3]
[3]Section 134AB(38)(b)
6 A mental or behavioural disturbance or disorder shall not be held to be severe unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.[4]
[4]Section 134AB(38)(d)
7 The Court shall not grant leave on the basis that Mr Raeburn has established the loss of earning capacity required by ss38(b) unless he establishes, in addition to the requirements of ss38(d), that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more, measured in accordance with sub-paragraphs 38(f) and (g).[5]
[5]Section 134AB(38)(e)
8 Mr Raeburn alleges that in mid 2003 he suffered an injury to shoulders, neck and upper back in the course of his employment. However, he does not allege in this application that any of those physical injuries are a “serious injury” as defined in the Act. Rather, he alleges that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder as a consequence of those physical injuries and that it is that mental or behavioural disorder which is a serious injury.
9 The issues to be determined in this case are:
(a)has Mr Raeburn suffered a permanent mental or behavioural disturbance or disorder which can fairly be described as being more than serious to the extent of being severe?
(b)did such disturbance or disorder arise in the course of his employment with the first defendant?
Background
10 Mr Raeburn is currently forty-seven years old. He lives at Stawell in Western Victoria.
11 He completed Year 11 at school and thereafter, completed an apprenticeship in sprinkler fitting, and worked in this industry for a number of years. He commenced work for the first defendant in about February 1997.
12 His employment duties involved the fitting of sprinkler systems. Those duties involved him working above head and shoulder level for much of the time.
13 In 1990, Mr Raeburn was the driver of a motor vehicle involved in a serious accident in which he suffered physical injuries and in which his brother died. As a consequence, he pleaded guilty to a charge of culpable driving and received a community-based order. He admits that he has suffered from feelings of guilt as a consequence of this accident. For a few years after that accident, he drank alcohol heavily.
14 Mr Raeburn had been involved in an unstable de facto relationship for some years prior to 2003. He had two young children in that relationship. His partner left him and returned on a number of occasions. His partner had a son from an earlier relationship. The son and his father had apparently caused some problems for Mr Raeburn. He mentioned these to a number of doctors who examined him but there were no details of them disclosed in evidence.
15 In 2002, Mr Raeburn’s father was diagnosed with cancer.
The June 2003 Injury and later History
16 Mr Raeburn deposed that on or about 18 June 2003 he experienced pain in his shoulders, neck and upper back after lifting and manoeuvring heavy pipes in the course of his employment. He did not work for two or three days thereafter, but then did return to work, which he said he found difficult.
17 He consulted Karen Madden of Lara Physiotherapy. She certified him unfit for work for 6 days from 5 August 2003.[6] I note that in his WorkCover claim form, he stated that he had earlier had physiotherapy on 19 and 23 June 2003 and I think this is likely to have been the case. He consulted Dr Cathy Turner of the Lara Medical Centre on 11 August 2003.
[6]Defendants’ Court Book (“DCB”) 26
18 Dr Turner referred him to Dr Hedley Griffiths, rheumatologist, who he saw on one occasion in late August 2003.
19 Mr Raeburn ceased work in August 2003 and has not worked since.
20 In December 2003, Mr Raeburn, his de facto partner and their children moved from Lara to live at Stawell. He had been brought up in the Stawell area and his parents were then still living on a farm in the district. Mr Raeburn’s evidence was that Dr Griffiths had advised him that he should return to live in Stawell where he would have support from his family, that he may not be able to lift anything above his waist for eighteen months, and that rehabilitation would be substantial.[7]
[7]Transcript (“T”) 44
21 Dr Griffiths had written to Dr Turner on 27 August 2003. He stated that Mr Raeburn’s pains were soft tissue in origin and that he suspected that they were occurring at that time because of a family crisis that had arisen and also that his job requiring a lot of overhead work was an aggravating factor. In his letter, Dr Griffiths specifically noted that Mr Raeburn was in the process of selling his house and moving his family back to Stawell.
22 On examination, Dr Griffiths noted no muscle wasting, normal shoulder movement, normal rotator cuff power without pain, and a full range of neck movement. He stated that he did not believe that medication was likely to help very much, apart from possibly anti-depressants.
23 I do not accept Mr Raeburn’s evidence that Dr Griffiths suggested that he leave the Geelong area and move to Stawell or anywhere else. Apart from the inherent unlikelihood of such a suggestion, it is apparent from Dr Griffiths’ letter that he had found little physically wrong with Mr Raeburn and, further, that Mr Raeburn had already decided to sell his home and move back to Stawell by the time of the consultation. Counsel for Mr Raeburn did not seek to persuade me otherwise.
24 Dr Turner’s letter of referral to Dr Griffiths states that Mr Raeburn was, at that time, stressed and not coping mentally.[8] Dr Griffiths took a history from Mr Raeburn of several family crises, including his brother being killed in the motorcar accident, and his father being diagnosed with cancer. Dr Griffiths noted that Mr Raeburn was on the verge of tears on several occasions when talking about his stress.[9]
[8]Plaintiff’s Court Book (“PCB”) 99
[9]PCB 100
25 In 2004, within a short time of his move to Stawell, Mr Raeburn and his de facto partner finally separated. He has seen little of his children since. The separation was acrimonious.
26 In Stawell, Mr Raeburn attended doctors at the Stawell Medical Centre, initially Dr Gankin and since September 2004, Mr Roger Warne. Mr Warne appears to be qualified as a general surgeon but carrying on a general practice, presently on a part time basis. Mr Raeburn has continued to see Mr Warne up to the present time.
27 Mr Warne has prescribed Tramadol, an analgesic, from 2004, and continues to do so, more than eight years later. Mr Raeburn says that he takes Tramadol about twice per day. In addition, he also takes paracetamol, which he is able to purchase across the counter without prescription. Further, he says that he has smoked marijuana regularly over the period since 2003, which he says assists him cope with his pain.
28 Mr Raeburn was seen on two occasions before he left Lara by Ms Crooks, a psychologist in Geelong, and on one occasion by Ms Margot Murphy, a psychologist in Stawell. He said that he did not see Ms Murphy again because, for reasons unexplained, he did not trust her. No report was tendered from either psychologist. He has seen Tanya Mitchell in Stawell on a number of occasions from late 2008 and into 2009, and more recently in 2011. Ms Mitchell is not a psychologist and describes herself as a counsellor. Her report does not indicate that she has any particular qualifications.[10]
[10]PCB 37
29 Mr Warne states that he has written several referrals to psychiatrists for Mr Raeburn, but that they were unable to see him, as they do not see WorkCover patients.[11] Mr Warne did not identify those psychiatrists. Counsel for both parties advised me that they had examined the notes of the Stawell Medical Centre relating to Mr Raeburn and there is no reference or documents in the file relating to any such referral.
[11]PCB 32
30 Mr Raeburn’s evidence was that he had contacted one psychiatrist in Stawell and was told there was a two-month waiting list for an appointment. He did not book an appointment. He did not give evidence that any psychiatrist had declined to see him for reasons connected to WorkCover, or for any other reason.
31 At the close of evidence I indicated to counsel for the plaintiff that I would view favourably an application by him to re-open his case if he or his instructing solicitors were able to obtain further information concerning those referrals from Mr Warne. I was later advised that further information had not been able to be obtained because Mr Warne worked only 2 afternoons per week. There was no application to re-open the case.
32 Mr Raeburn describes himself as being in constant and severe pain and quite unable to engage in any employment. He states that he spends most of the time at home. He suffers more in the winter months and spends most of his days lying in front of the heater at home. Even in the warmer months, he describes his activities as very restricted. I shall return to these later in these reasons.
Diagnoses of Injury
33 It is common ground between the parties that, although Mr Raeburn has been examined by a number of specialists and has undergone a number of radiological investigations, no abnormality has been found in relation to his shoulders, neck or upper back that would explain ongoing pain, let alone debilitating pain. He has been found to have a full range of pain-free movement of his neck, shoulders and back on examination. Radiological examination has shown no abnormality. There has been no wasting of his shoulder musculature observed. No witness was able to identify any organic cause for ongoing pain in his neck, shoulders or upper back.
34 Nevertheless, Senior Counsel for the defendants conceded that I should be satisfied that Mr Raeburn did suffer from a soft-tissue injury of some sort in an incident on 18 June 2003.
35 Indeed, there was evidence that this was the case. On 5 August 2003, Mr Raeburn was certified by a physiotherapist, Ms Karen Madden, to be unfit for work from 5 August to 10 August 2003 by reason of cervico-thoracic pain and stiffness as a result of an acute episode at work.[12] Dr Turner thought Mr Raeburn had cervical spine tenderness and that his shoulders were “a little touchy”.[13] Dr Yeaman certified Mr Raeburn as unfit for any duties from 28 August to 10 September 2003 by reason of painful shoulders, neck and thoracic spine.[14] He further certified him unfit for any duties from 10 September to 3 December 2003 by reason of painful shoulders, neck, thoracic spine “and depression”.
[12]DCB 26
[13]PCB 99
[14]PCB 106, 108
36 I find on balance of probabilities that Mr Raeburn suffered a soft-tissue injury to his neck and/or shoulders and/or upper spine in the course of his employment with the first defendant involving his regular work above shoulder level. I find that, whatever the precise nature of that injury, it resolved within a relatively short period – probably within about six months. There is no evidence of any ongoing organic injury and there has not been for many years.
37 By 11 August 2003, Dr Turner considered that Mr Raeburn was stressed and not coping mentally.[15] She noted he had poor concentration and that his decision making powers were affected. This was very soon after he went off work. She did not express a view as to the cause of his stress-related problems.
[15]PCB 99
38 In late August 2003, Dr Griffiths thought that Mr Raeburn’s pains were occurring because of family crises. He did not think medication would be of assistance, other than anti-depressants. Whilst Dr Griffiths is not a psychologist or a psychiatrist, I note his views concerning the likely link between Mr Raeburn’s demeanour and his family problems and the history that he had already decided to leave Lara and return to Stawell.[16]
[16]PCB 100
39 I note the views of Dr Yeaman after seeing Mr Raeburn in September 2003 and in particular, the history provided relating to his anger with his employer, and his problems coping with his past experiences and treatment at work, leading to outbursts at home, causing problems.[17] By October 2003, Dr Yeaman noted that Mr Raeburn had become more depressed with the thought of having to return to work.[18] Dr Yeaman continued to certify Mr Raeburn unfit for any work duties as a consequence of painful shoulders, neck and thoracic spine, and also depression. In November 2003, he advised Ms Hughes of Worklife Rehabilitation that the then current barrier to Mr Raeburn returning to work was his stress condition.[19]
[17]PCB 24
[18]PCB 25
[19]DCB 121
40 There were no reports from the two psychologists who treated him in Geelong and Stawell. There have been no treating psychiatrists.
41 Rather, Mr Raeburn relies upon reports from a number of psychiatrists who examined him on a medico-legal basis at the request of both his and the defendants’ solicitors. I shall deal with evidence of each of them roughly in the order in which they examined him.
42 Dr Carol Newlands, psychiatrist, examined Mr Raeburn twice, in late December 2003 and late May 2005. On the earlier occasion, she concluded that he had suffered a physical injury and psychological sequelae consisting of interrupted sleep, loss of appetite, loss of energy, difficulty with concentration and memory, depression, anxiety, low mood and nightmares of earlier workplace incidents.[20] She considered his employment was causative of his physical and the psychological sequelae were secondary to that injury.[21]
[20]DCB 85-86
[21]DCB 86
43 Dr Newlands was provided with a copy of a report from a rheumatologist, Dr Wood, who had opined that there was no evidence that Mr Raeburn suffered from any ongoing soft-tissue injury. In June 2005, she concluded that he suffered from longstanding chronic pain with secondary depression and anxiety.[22] She noted his use of marijuana as a means of pain relief. She did not believe he had any capacity for any employment, but could not say how long this was likely to last. She thought he would benefit from a pain management course to learn how to manage his pain better.[23] She considered that his employment injury was still a material contributing factor to his condition of chronic pain with depression and anxiety. She hoped that with some treatment he might improve. She concluded that, if there was no organically-based pain and only psychologically-based pain, there was little doubt his psychiatric problem materially contributed to his not being able to work.[24]
[22]DCB 95
[23]DCB 95
[24]DCB 99
44 Dr Nigel Strauss, psychiatrist, saw Mr Raeburn on one occasion in November 2004. He took a history from Mr Raeburn that he had tried anti-depressants on one occasion, but that he refused to take them for any length of time.
45 Dr Strauss thought it likely that Mr Raeburn suffered some kind of physical strain in the course of his work in 2003 but, on the basis of Dr Wood’s report, accepted that he had no significant organic condition when he saw him. He considered that, even though organic factors were not particularly important, Mr Raeburn had psychologically-based pain with anxiety and depression, although he did tend to over-embellish his presentation because of his anger and resentment.
46 Dr Strauss considered that a pain management program, such as one run by Cedar Court in Melbourne, would be appropriate. He thought that there was a fifty per cent chance that a pain management program would assist him in possibly getting back to work eventually. On the other hand, there was also a fifty per cent chance that his claim may drag on for a long period, leaving him permanently a semi-invalid.[25]
[25]DCB 74
47 Dr Strauss considered that Mr Raeburn suffered from a psychiatric condition which did need assistance. He considered that initially, he may have suffered genuine physical pain which was work-related and that this had evolved into psychological distress. He concluded that initially, that pain was organically-based but progressively it became psychologically-based, and it was difficult to divorce the initial physical injury from the development of the psychologically-based Pain Syndrome.[26]
[26]DCB 74
48 Dr Strauss opined that if Mr Raeburn had not developed a physical problem, he would not have developed a psychiatric problem.[27]
[27]DCB 77-78
49 Dr Senadipathy, psychiatrist, saw Mr Raeburn in January 2007 and July 2011. In January 2007, he considered that Mr Raeburn’s presentation indicated that he had multiple emotional problems. He thought he was suffering from work-related chronic pain that was reinforcing his anger and hostility towards his former employer. That hostility included having coped with looking after his boss’s drug-dependent son and then considering that his boss had not supported his WorkCover claim.
50 Dr Senadipathy was of the view that Mr Raeburn was unable to work because of his pre-occupation with pain, lack of motivation, substance use (marijuana), poor emotional control and interpersonal conflicts. He believed he had a current mental disorder. He did not believe that that disorder was “entirely” related to work. It was probable that work-related problems of soft-tissue pain had aggravated pre-existing and untreated emotional problems.[28]
[28]DCB 55
51 Dr Senadipathy considered that Mr Raeburn was incapacitated for work. He considered that the use of cannabis was detrimental to his mental wellbeing and would be contributing to poor coping skills and interpersonal skills. Notwithstanding his view that the work-related soft-tissue pain had played a part in aggravating pre-existing and untreated emotional problems, he also expressed the view that, as there was no physical cause for the pain and as he no longer had to deal with his boss’s son, the work-related component of his condition was not materially contributing to his current mental condition.[29] I consider that those views are inconsistent.
[29]DCB 59
52 In July 2011, Dr Senadipathy considered that:
(a) Mr Raeburn did not manifest symptoms diagnostic of a psychiatric condition.
(b) Mr Raeburn’s employment was a cause of his shoulder and neck pain, but he did not have any current psychiatric illness.
(c) Although workplace problems were minor, “it would have given him an external focus to project his problems”.[30] I do not understand what the doctor meant by this; nor did Dr Epstein.[31]
(d) Mr Raeburn was, he considered, free of any significant emotional problems diagnostic of a psychiatric illness. Mr Raeburn’s mental health had improved and was stable.
[30]DCB 60
[31]T 176
53 Dr Senadipathy considered that Mr Raeburn was focussed on chronic pain and, considering his past personal history, including the death of his brother, unstable personal relationships, alcohol and substance dependence, it was possible that unresolved personal issues were contributing to his expression of pain and disability. He thought he was “trapped in the WorkCover system.”[32]
[32]DCB 60-61
54 Dr Alan Jager, psychiatrist, saw Mr Raeburn in June 2008. Dr Jager stated:
“In June 2003, he developed low back pain after repeatedly lifting lengths of steel. He became depressed when his employer wouldn’t stand by him and he is angry with the employer not wanting to accept responsibility. Reports from informants indicate that he felt stressed in the workplace prior to developing low back pain. There is no adequate organic explanation for his pain. He feels angry and has impaired enjoyment, sleep and concentration.”[33]
[33]DCB 66
55 Counsel for the parties were unable to advise me as to which reports from “informants” Dr Jager was referring. None were tendered. It is likely that the doctor’s reference to low-back pain is incorrect.
56 Nevertheless, Dr Jager concluded that if there was no musculoskeletal injury related to Mr Raeburn’s work and that he had not identified a psychiatric injury related to that employment, he considered that, in the absence of an organic explanation for the continuing pain, Mr Raeburn had a Chronic Pain Disorder associated with psychological factors. The most likely source of potent psychological stress was the 1990 car accident. Further, Dr Jager noted the breakdown of Mr Raeburn’s de facto relationship at around the time of his development of pain, which suggested the possibility of a causative link between the breakdown of the de facto relationship and the development of the Pain Disorder.[34]
[34]DCB 66
57 Dr Jager considered that Mr Raeburn’s psychiatric condition affected his activities of daily living in terms of personal hygiene and reduced social activity, but did not affect his ability to undertake his occupation.[35]
[35]DCB 67
58 In summary, Dr Jager considered that Mr Raeburn’s psychiatric impairment was due to psychological factors unrelated to the workplace.[36]
[36]DCB 67
59 Professor Ivor Jones, psychiatrist, saw Mr Raeburn on one occasion in September 2011. On that occasion, Professor Jones considered that there was no clinical evidence of either anxiety or depression or any other cognitive or perceptual disorders. A central issue appeared to be Mr Raeburn’s pain and the progressively restricted lifestyle that he appears to have adopted over the years, and his marked lack of motivation.
60 Professor Jones considered that the most appropriate diagnosis was one of a Chronic Pain Syndrome. Although Mr Raeburn did not show a formal psychiatric syndrome in the DSM‑IV sense, he considered that there had been, since the injury, a progressive restriction in activity and the adoption of a semi-invalid way of life whilst treatment of a physical nature had only taken the edge off his pain.
61 On the evidence before him, Professor Jones considered that the incident at work should be regarded as the precipitating factor, although in the absence of ongoing physical changes, it seemed likely that his progressive development of an invalid role had overtaken any continuing causal factors. Whilst he showed subjective confusion and disorganisation in his way of life, he considered there was no clinical evidence of a structural memory disturbance, and his mental state examination had been normal. Mr Raeburn’s present state was, he opined, compatible with that of chronic, heavy marijuana use.[37]
[37]DCB 129
62 Professor Jones considered Mr Raeburn was suffering from a Chronic Pain Syndrome. He could see no reason why an attempt at occupational rehabilitation should not be undertaken, if this was feasible, in Stawell. He considered that Mr Raeburn did not require psychiatric treatment but would be helped by a graduated activity program, such as might be provided by occupational rehabilitation services. Unfortunately, he considered that, in the circumstances, a Chronic Pain Syndrome, which in itself was indefinite and probably a multi-causal entity, may persist. He thought that his analgesic use and marijuana use appeared excessive and might account for much of his present state.[38]
[38]DCB 130
63 Later in his report, Professor Jones described Mr Raeburn as suffering from the indefinite entity of Regional Pain Syndrome.[39] I assume that Professor Jones uses the term “Regional Pain Syndrome” as one and the same as a Chronic Pain Syndrome, although this is not stated. Importantly, Professor Jones states:
“On present evidence, the precipitating event does appear to have been the onset of symptoms at his present work, although since this caused only soft tissue injury it is more likely now that personality factors and other factors have supervened to maintain the present symptoms and the disability, although I elicited no formal prior psychiatric disturbance.”[40]
[39]DCB 131
[40]DCB 131
64 Professor Jones was of the view that it was improbable that Mr Raeburn would be able to return to work in his pre-injury duties, but did not consider that he was unemployable. He thought there was no psychiatric bar to him returning to his former work, but in practice he doubted whether this could be achieved. He did not explain why this was so. Confusingly, he stated later in his report that Mr Raeburn currently had no work capacity.[41] Nevertheless, he suggested an attempted rehabilitation.
[41]DCB 133
65 In a supplementary report dated 24 November 2011, Professor Jones stated that Mr Raeburn no longer showed a formal psychiatric diagnosis in the DSM‑RD sense, thereby no longer suffering from an Adjustment Disorder with Depressed Mood. A Chronic Pain Disorder still played a part in his incapacity. He considered that marijuana appeared to play an important role in the present incapacity, along with the assumption of an invalid role that seems to have occurred progressively over the years.
66 Dr Michael Epstein, psychiatrist, saw Mr Raeburn in November 2007, May 2009, September 2011 and for a fourth time in May 2012.
67 Dr Epstein took a detailed history from Mr Raeburn which included that, prior to the June 2003 injury, Mr Raeburn had previously been experiencing increasing levels of stress at work, including his work conditions and having to look after his boss’s son who had a heroin addiction, and was aggressive and threatening. Dr Epstein was told that Mr Raeburn felt let down by his employer.[42] He noted that, by mid-September 2003, the history was of increasing anger towards his employer and how the anger had been spilling over into his home life with outbursts of anger which were causing problems.[43]
[42]PCB 41
[43]PCB 41
68 Dr Epstein had also taken a history of the 1990 motorcar accident and its repercussions. He had also been made aware that Mr Raeburn’s de facto relationship was generally unstable, that his partner had often left him and that they had finally separated soon after they had moved to Stawell, resulting in him have very little if any contact with his children.[44]
[44]PCB 42
69 Dr Epstein had also taken a history that Mr Raeburn had used marijuana regularly. In November 2007, he took a history of usage of 3 or 4 grams of marijuana per week.[45]
[45]PCB 42
70 Notwithstanding those matters not directly associated with his physical injury in June of 2003, Dr Epstein initially considered that:
(a) Mr Raeburn had developed problems involving his neck and shoulders which had come on during the course of his employment and led to him ceasing work in August 2003.
(b) As a consequence of that chronic pain, discomfort and disability, he had developed a Chronic Adjustment Disorder with Depressed Mood.
(c) Although he had been distressed by the breakdown of his relationship and the limited contact with his children, this appeared to have arisen in part because of his ongoing pain and discomfort and the effect that this had had on his behaviour.
(d) He appeared to have developed a Pain Disorder in which his complaints of pain are in excess of any signs that can be elicited and that this appears to have arisen from his work injury.[46]
[46]PCB 44
71 In May 2009, Dr Epstein considered that Mr Raeburn had a Chronic Pain Disorder associated with both psychological factors and a general medical condition – namely, an initial soft-tissue injury to his shoulders and neck. As a consequence of the chronic pain, discomfort and disability, he had developed a Chronic Adjustment Disorder with Depressed Mood and this had persisted. He had also developed a substance use disorder with marijuana but, at that time, appeared to have ceased using marijuana.[47]
[47]PCB 50
72 In September 2011, Dr Epstein’s views were essentially unchanged.[48]
[48]PCB 56
73 Dr Epstein last saw Mr Raeburn in late May 2012. At that time, Dr Epstein had been provided with reports from Dr Senadipathy, Mr Brearley, orthopaedic surgeon, Dr Jager, Professor Jones, Mr Warne and Medical Panel opinions and reasons. Dr Epstein’s assessment and diagnosis of Mr Raeburn were again, essentially unchanged.[49] He noted that Mr Raeburn was apparently again using marijuana. He noted that whilst Mr Raeburn had other causes of distress, his impression was that pain dominated Mr Raeburn’s life and that these other matters were secondary. Dr Epstein concluded that Mr Raeburn’s psychiatric state was related to his work injuries. He thought that he had no current work capacity because of his psychiatric condition alone. He was depressed, irritable, fatigued and had difficulty coping with pressure. His prognosis for improvement was poor. His condition was stable. His situation was unlikely to change.[50]
[49]PCB 57.6
[50]PCB 57.6
74 Dr Epstein also gave oral evidence. He adopted his four reports and was cross-examined at length. I consider that he was an impressive witness. I summarise what I consider to be the important parts of his oral evidence:
(a) Anti-depressant or anti-anxiety medication becomes increasingly ineffective with the passage of time in terms of bringing about any marked change in mental state.[51]
[51]T 152
(b) Preferred treatment for Mr Raeburn would be a pain management program with a multi-disciplinary team consisting of a physiotherapist, occupational therapist, psychologist, psychiatrist, rehabilitation specialist and possibly an exercise physiologist.[52] Whilst such a program may not make his pain better, it would assist him managing his pain. There was a pain management clinic in Ballarat (which I note is about 120 kilometres from Stawell). Persons were sometimes in-patients there or sometimes stayed in nearby motels and attended the clinic daily.[53] If Mr Raeburn was in his hands, Dr Epstein would take steps to book him into a pain management clinic in Ballarat.[54]
[52]T 153
[53]T 154
[54]T 184
(c) Treatment would be much more difficult than if he had been seen for treatment in the first twelve months of his complaint of chronic pain.[55] If Mr Raeburn was referred to him now, nearly nine years after, he would not be confident of successful treatment.
[55]T 150
(d) He considered that Mr Raeburn had a substance abuse disorder, in the sense that he was addicted to or dependant on marijuana. Some people using marijuana show symptoms of depression and anxiety as part of their marijuana abuse. There was a considerable overlap with such symptoms and those with a Chronic Pain Disorder. If he was treating Mr Raeburn, step one would be to tell him to stop using marijuana and substitute it with a much safer anti-depressant.[56]
[56]T 157-8
(e) To his knowledge, there were no psychiatrists in Stawell. The nearest would be in Ballarat.[57]
[57]T 159
(f) He considered that Mr Raeburn suffered from a Chronic Pain Disorder associated with both psychological factors and a general medical condition. The expression “general medical condition” meant that, at some point in time, there had been a physical injury of some type, which may now have resolved, but which was the precipitant of psychological factors.[58]
[58]T 169
(g) He acknowledged that the psychiatrists who had examined Mr Raeburn had all taken similar histories but had not all come to the same conclusions. He disagreed with the views of other psychiatrists who had formed the view that Mr Raeburn suffered from no psychiatric condition. For instance, he considered that the matters identified by Dr Senadipathy, including a pre-occupation with pain, lack of motivation, substance abuse, poor emotional control, and inter-personal conflicts, pointed to a psychiatric condition.[59] Likewise, he considered the findings of Professor Jones of Mr Raeburn being vague and confused, lacking in drive and motivation were symptoms of depression.[60]
[59]T 174-5
[60]T 179-180
(h) Whilst the earlier car accident and its sequelae, and the break up of his de facto relationship were issues that might lead to depression and a generally miserable condition, he considered that Mr Raeburn’s soft-tissue injury was “the straw that broke the camel’s back”.[61]
[61]T 181, 195
(i) Given that Mr Raeburn has effectively been undertreated for more than eight years, his prognosis is really poor, no matter what treatment was tried.[62]
(j) He diagnosed Mr Raeburn as having a Chronic Pain Disorder with both psychological factors and a general medical condition, being a soft-tissue injury that has now resolved.[63]
[62]T 182
[63]T 202-203
75 Mr Raeburn’s treating general practitioner since late 2003 has been Mr Roger Warne. Mr Warne appears to be qualified as a general surgeon but it would seem that he carries on a general practice in Stawell, currently on a part-time basis.
76 Five letters from Mr Warne were tendered in evidence. The defendants did not require him for cross-examination.
77 In April 2006, Mr Warne opined that Mr Raeburn had some type of persistent disability as a result of lifting pipes at work. He did not otherwise identify the injury or disability. He thought, at that stage, that it was hard to imagine that this would improve.[64]
[64]PCB 31
78 Mr Warne’s reports are of little assistance to Mr Raeburn in this application. In relation to mental or behavioural disorders, Mr Warne makes only a brief reference to Mr Raeburn being quite depressed regarding his condition.[65] He did not identify the symptoms leading to that diagnosis or express a view as to its prognosis. It is apparent that Mr Warne has prescribed Tramadol to Mr Raeburn for more than eight years, notwithstanding that that medication appears to have little impact on his reported pain levels.
[65]PCB 33
79 Mr Raeburn was examined by two medical panels pursuant to s45 of the Act. The opinions and the reasons for those opinions were tendered by Mr Raeburn with the consent of the defendants.
80 In May 2005, a Panel, which included three psychiatrists, Dr Freidin, Dr Hayman and Dr Tagkalidis, concluded:
(a) Mr Raeburn’s complaints of pain were not consistent with an organic medical condition.
(b) He was suffering from a Chronic Pain Disorder associated with psychological factors and a mild Adjustment Disorder with Depressed Mood, relevant his alleged psychological disorder.
(c) His psychiatric condition, which includes his perception of pain and daily intake of analgesic medication, rendered him incapable of performing his pre-injury duties.
(d) There was no work for which he was then suited and which he could perform on a reliable and consistent basis.
(e) His situation may change with occupational rehabilitation and specialised pain management and psychiatric treatment. However, as such treatment was not then being provided and there was no indication that it would be in the future, he was likely to continue indefinitely to have no work capacity.[66]
[66]PCB 70-71
81 In October 2010, a second Panel, including two psychiatrists, Dr Carson and Dr Handrinos, concluded that:
(a)Mr Raeburn was suffering from a Chronic Pain Disorder associated with psychological factors, but by that time, they considered that there was no longer any evidence of an Adjustment Disorder with Depressed Mood and that that condition had resolved. In addition, the Panel concluded that a diagnosis of marijuana abuse was then also appropriate.
(b)Due to the nature of the psychiatric injury and the duration of the symptoms, the Panel concluded that the condition was stabilised and was permanent.
82 The Panel, in its reasons, did not identify consequences to Mr Raeburn of that psychiatric condition. However, they did conduct a psychiatric impairment assessment in order with the “Guide for the Evaluation of Psychiatric Impairment for Clinicians” in accordance with s91(6) of the Act, and concluded that the degree of psychiatric impairment was 20 per cent and that this impairment arose secondary to the accepted physical injury.
83 Taking all of the evidence into account, I consider that it is likely that Mr Raeburn suffered a relatively minor soft-tissue injury to his shoulders, neck and upper back in the course of his employment and that that injury resolved. I accept the summary provided by Dr Strauss that, initially, pain was organically-based but progressively it became psychologically-based. Dr Newlands also considered that the psychological sequelae were secondary to the physical injury. Professor Jones and Dr Epstein came to similar conclusions. I consider that descriptions of the workplace injury as being the precipitant or as being “the straw that broke the camel’s back” amount to much the same thing. I do not accept the argument that, because the physical injury has resolved, any psychological sequelae to the injury connected to that workplace injury must also have resolved.
84 The earlier motor vehicle accident of 1990 would obviously have been a traumatic and devastating experience for Mr Raeburn. However, after a period of rehabilitation he was able to return to the workforce and remain in it for more than a decade. Prior to the 2003 injury, he had been employed by the first defendant for more than six years and had been working long hours and in a responsible position.
85 His relationship with his de facto partner had not been always a happy one. She had left him on a number of occasions, but Mr Raeburn seems to have been able to cope with these events and remain in the workforce.
86 It may well be that these matters, along with his father’s illness, made him more vulnerable to psychological injury than would otherwise have been the case. It may well be that these matters played a part in the development of his current condition. However, I accept the overwhelming evidence from psychiatrists that the workplace injury appears to have been a precipitant of the psychological condition from which he has suffered since 2003. I consider that Mr Raeburn has suffered from, and continues to suffer from, a mental or behavioural disorder.
87 I note the evidence of Mr Raeburn’s use of marijuana, his evidence that it helped his pain, and the evidence of doctors that it may be inhibiting his recovery from depression. Mr Raeburn had used marijuana before the work injury without it interfering with his work capacity. Whilst marijuana may be contributing to a degree to his present condition, I find that his work injury and the psychological sequelae of it materially contribute to that condition. It is not necessary for Mr Raeburn to prove that his work place injury is the sole cause of the symptoms or condition from which he suffers.
Consequences of Injury
88 Mr Raeburn was extensively cross-examined. He was an unusual witness in my opinion, in the sense that he displayed a flat and almost monotonal manner of speaking and displayed little enthusiasm at any time.
89 Mr Raeburn stated that his lifestyle has been reduced to one where he effectively stays at home, does little and socialises little. He maintains that he suffers from severe pain in his upper back, neck and shoulders. He has maintained that this has been the case since 2003.
90 No medical practitioner who has either treated Mr Raeburn or examined him on a medico-legal basis has suggested that he is a malingerer or is a person deliberately giving a false account of his circumstances or his subjective experience of pain. The highest such evidence reaches is Dr Strauss’s comment that he embellished somewhat.
91 I note from the index to the Defendants’ Court Book that it has in its possession surveillance video of Mr Raeburn brought into existence for the purpose of this litigation. No such surveillance video material was shown to Mr Raeburn in cross-examination or tendered into evidence. Counsel for Mr Raeburn submitted that it was open to me to infer firstly, that the defendants had had Mr Raeburn under surveillance at one or more times prior to the hearing and also that such surveillance video would not have assisted the defendants’ case. I accept that submission.
92 I am left with the evidence of Mr Raeburn that effectively he has led a miserable, painful and largely solitary life for some eight years or more. His evidence is supported by that of his mother, June Raeburn, and a neighbour, Joanne Biddy, whose affidavits were tendered. Neither was required for cross-examination. I see no reason to reject Mr Raeburn’s evidence as to the lifestyle he has been leading.
93 Up until his workplace injury, Mr Raeburn appears to have had a good work record. He earned a decent income. For the financial years ended 30 June 2001, 2002 and 2004, his income was just under $67,000, approximately $55,000, and just under $69,000, respectively. Effectively, he has not worked since.
94 Although it was suggested to Mr Raeburn in cross-examination that he might have been able to work in some capacity, I find that it is unlikely that he will be able to return to work in the future. Mr Raeburn was plainly a person who would not have been suited to clerical or administrative office work. He was a person who had always performed work of a labouring nature and it is unlikely that he would ever return to such work. Whilst there may be no organic explanation for his ongoing pain, I accept nevertheless that he experiences ongoing pain. Accepting that the origin of his pain is not organic but psychological, it is still experienced as pain by him. I accept the evidence of Dr Epstein that given the time over which his condition has now existed, it is unlikely that he would be treated successfully in the future. Of course, this remains a possibility but, in my view, not a probability.
95 It is easy to come to the conclusion that Mr Raeburn has been undertreated for many years. He appears to have put his faith in Mr Warne, who has, on the evidence before me, done little other than prescribe Tramadol medication notwithstanding it’s lack of impact. However, lack of effective treatment in this case should not be held against Mr Raeburn. I note that WorkCover at one stage terminated all medical and like expenses, presumably on the grounds that they were considered unnecessary. This is a case which can be contrasted with one where a worker declines treatment recommended to him by treating practitioners and even with a case of a worker declining treatment proposed by WorkCover or a claims agent. It may well be that Mr Raeburn would have benefitted from treatment at a pain management clinic at an early stage. However, on the evidence before me, no such treatment was proposed by Mr Warne, by WorkCover or by the claims agent.
96 In summary, I find that the consequences of Mr Raeburn’s injury are that:
(a) he suffers from what he genuinely perceives as significant pain, virtually constantly;
(b) his sleeping is affected by pain;
(c) his pre-injury lifestyle was relatively active and involved him being able to perform a wide range of activities around the home, including gardening and a variety of recreational activities; he now is able to perform little physical activity;
(d) whereas pre-injury he was an outgoing person who enjoyed mixing with work colleagues, he has now lost most of his friends and socialises rarely;
(e) he has reduced concentration and memory;
(f) he feels hopeless, helpless, useless and worthless. He bursts into tears now and again for no reason;
(g) he has lost interest in many things. He eats inadequately. His personal hygiene has become poor;
(h) he is tired nearly all the time;
(i) he has lost trust in people and become reclusive.
(j) whereas prior to his injury, he was employed full time as a leading hand, a position involving some responsibility, he is now effectively unable to work at all.
97 Taking all of the evidence into account, I am comfortably able to say that the pain and suffering consequences of Mr Raeburn’s psychological injury are more than “serious” to the extent of being “severe”.
98 In is clear that up until 2003, Mr Raeburn had the capacity to earn around $65,000 to $70,000 per year. He has not worked since August 2003. I consider that he is unable to work at present by reason of the pain that he perceives.
99 It is now more than eight years since Mr Raeburn ceased employment. I accept the evidence of Dr Epstein that his condition is unlikely to improve in the foreseeable future. Accordingly, I find that the condition is a permanent one in the sense described by the Court of Appeal in Barwon Spinners.[67]
[67]supra
Conclusion
100 Accordingly, I am satisfied that Mr Raeburn has suffered a serious injury in the course of his employment with the first defendant.
101 There will be leave pursuant to s134AB(16)(b) for Mr Raeburn to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of injury suffered by him in the course of his employment with the first defendant.
102 I shall hear the parties in respect of costs.
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