Raymond v Adval Australia Pty Ltd
[2013] VCC 1748
•20 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-06111
| DENHAM ANTHONY RAYMOND | Plaintiff |
| v | |
| ADVAL AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 11, 12 and 13 November 2013 | |
DATE OF JUDGMENT: | 20 November 2013 | |
CASE MAY BE CITED AS: | Raymond v Adval Australia Pty Ltd | |
| MEDIUM NEUTRAL CITATION: [First revision 26 November 2013] | [2013] VCC 1748 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to spine – Chronic Pain Disorder
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Elias v Transport Accident Commission [2013] VSCA 123; Petkovski v Galletti [1994] 1 VR 436; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Transport Accident Commission v Zepic [2013] VSCA 232; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr C Nettlefold | Ryan Carlisle Thomas |
| For the Defendant | Ms A Ryan | Minter Ellison |
HIS HONOUR:
1 This is a claim for leave to bring proceedings under s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for damages for both pecuniary loss and pain and suffering.
2 The plaintiff relies on the paragraph (a) definition of “serious” with respect to a spinal injury described as aggravation of pre-existing spinal degeneration. He also relies on the paragraph (c) definition of “serious” incorporating the stronger word “severe”.[1] The psychiatric disorder is described as a Chronic Pain Disorder and Adjustment Disorder with Depression and Anxiety.
[1]Elias v Transport Accident Commission [2013] VSCA 123 at paragraph 56
3 The defendant admits a compensable injury was suffered under both paragraphs (a) and (c).[2] Both conditions to some extent involve alleged aggravations, so an analysis of the before and after picture will be required.[3]
[2]Transcript (“T”) 8-10
[3]Petkovski v Galletti [1994] 1 VR 436; Plaintiff’s Court Book (“PCB”) 30; Dr T Entwisle at Defendant’s Court Book (“DCB”) 42e and Mr P Rustomjee at PCB 160
4 The issues for determination are whether the paragraph (a) injury is “serious” and whether the paragraph (c) injury is “severe” as defined in the Act. These issues raise the question of disentanglement, as well as credit, in the circumstances of this case.
5 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that some serious injury applications involve a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit in certain cases.
6 It should be stated in this case that there is a large number of medical and radiological reports covering medical evidence over some twenty years or so. In determining whether or not the injuries qualify as “serious”, I have not had the advantage of hearing from any doctors in the witnessbox. The Court is left with trying to assess a before and after picture in relation to this case that both from the plaintiff’s affidavit and oral evidence and the medical reports is in many ways unsatisfactory and incomplete.
7 Very recent authority sets out the two-step task involved in disentangling in cases where paragraphs (a) and (c) are relied upon. It has been described as requiring an approach as follows:
“…The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”[4]
[4]Fokasv Staff Australia Pty Ltd [2013] VSCA 230 at paragraph 5
8 The plaintiff is aged forty-eight years and he came to this country from Sri Lanka in 1978. He has mostly worked in printing and started with the defendant company on 25 October 2004. He alleges he injured his back some five weeks later, on 1 December 2004 (“the 2004 injury”). In 1992, he suffered a back injury (“the 1992 injury”) which troubled him through the 1990s, but he said he was working full time without restriction up to December 2004.[5]
[5]PCB 25-26
9 Four affidavits have been sworn by the plaintiff between 22 June 2010 and 30 September 2013[6] regarding the consequences of the 2004 injury. In view of the evidence that has emerged in this case, they are a very inadequate account of the plaintiff’s medical and work history up to and after 1 December 2004.
[6]PCB 24, 32, 36 and 40
10 For example, the first affidavit sworn almost six years after the accident barely mentions anything remotely connected to a paragraph (c) severe mental or behavioural disorder. It alludes in paragraph 39 to only this:
“I did suffer some depression prior to being injured in December 2004. Nowadays I feel more anxious and depressed than ever before at my situation.”[7]
[7]PCB 30
11 The second affidavit, on 27 February 2012, is focussed on the paragraph (a) injury with no depression or anxiety being mentioned at all.[8]
[8]PCB 32
12 On 1 October 2012, the third affidavit emphasises the alleged consequences of the physical injury to his back and concludes with the statement:
“I don’t believe I have any capacity for re-employment at this stage because of my physical restrictions … .”[9]
[9]PCB 38
13 The fourth affidavit, on 30 September 2013, mentions seeing a psychologist, Ms McDonald, on a couple of occasions some months ago.[10] It also states that he gets depressed at times because of the pain and inability to work “However the main remains with my back and neck”.[11]
[10]PCB 41
[11]PCB 42
14 An Amended Particulars of Injury dated 12 September 2013 has been tendered that adds:
“(c) Chronic Pain Disorder
(d)Adjustment Disorder with Anxiety and Depression”[12]
to the paragraph (a) spinal aggravation.
[12]PCB 23
15 The affidavit material only fleetingly addresses the paragraph (c) condition and its consequences now relied on as the principal limb of this application.[13] Nevertheless, all the evidence must be considered and not just the affidavits.
[13]T24
16 The plaintiff was the only witness to give oral evidence. I found him to be an unimpressive and unreliable witness. At times, he answered in a way that indicated a willingness to say what he thought would conveniently deflect attention away from questions that were a little confronting. Such answers often proved to be just incorrect. Examples of inadequate answers and explanations included the VOCAT claim and intervention order proceedings, psychological counselling,[14] his inability to horse ride and when and why that inability occurred[15] and when dealing with his 2001 affidavit.[16]
[14]T98-102
[15]T81-83, PCB 26, 33, 37 and 2001 WorkCover claim affidavit and aspects of its contents relating to the 1992 injury, DCB 73, T66-70
[16]DCB 73-75, T66-70
17 The case demonstrated the advantage of observing and hearing oral evidence. The plaintiff’s demeanour and prevarication at times were not indicative of a witness always doing his best to be accurate. Other examples of unsatisfactory answers concerned his medical treatment prior to December 2004,[17] an email about having his own business and having twenty-two years’ experience in landscaping,[18] as well as the information in an employment application[19] and work he had performed after the 2004 injury.[20]
[17]T51-52
[18]T85
[19]DCB 80-85, T83-86
[20]PCB 30, T33-40
18 I do not accept the plaintiff’s account of his level of symptoms and the level of pain he says he has suffered after the 2004 injury as being accurate or reliable. The accounts to a number of doctors involve serious omissions in regard to history that I would regard as too vital and recent to not impact on credit. There is no record given by the plaintiff of pre-existing psychiatric history in any detail in his affidavits, but when required to see psychiatrists engaged for the purposes of his paragraph (c) claim, added by way of the late Amended Particulars of Injury, he records at times a different picture to different doctors.
19 One history is of a man so seriously unwell in the past that he was suicidal, required ECT and was hospitalised. To Dr T Entwisle, psychiatrist, in July 2013, he gave such an account.[21] In December 2012, to Dr M Epstein, psychiatrist, he related how he was admitted to hospital as a voluntary inpatient and tried to hang himself. Again, this is a picture of very serious psychiatric illness.[22] Yet to Dr P Kornan, psychiatrist, in April 2010, all he recorded was:
“He indicated in 1990 a depression reaction at that time. Since this, he had been treated by his local doctor.”[23]
[21]DCB 42b
[22]PCB 122
[23]DCB 32
20 His affidavit evidence really only states “I did suffer some depression prior to being injured in December 2004” and really little else of consequence.[24]
[24]PCB 30
21 The accounts are hard to reconcile in terms of history. The true before picture has to be established when assessing the impact of the 2004 injury.
22 The differences in the evidence lead to the conclusion that the plaintiff did not give anything like an accurate account in his affidavit evidence nor in the witnessbox. Dr Entwisle and Dr Epstein could hardly have been mistaken in the detail they had taken about his past psychiatric history. I accept that this would have been relayed to them by the plaintiff but are really not mentioned at all in his affidavit material nor in examination-in-chief.
23 This is a paragraph (c) application that, on one view, involves to some extent an issue of aggravation of pre-existing depressive psychiatric problems.[25] There may have been a gap of some years between these periods of obviously significant psychiatric troubles and the subject accident in 2004. Nevertheless, the plaintiff has the onus of establishing the facts on the balance of probabilities in regard to the before and after picture.
[25]DCB 42e
24 Another matter of real concern in terms of assessing the reliability of the plaintiff’s evidence, is to compare his oral evidence with the virtual absence in his four affidavits of what employment he has been able to obtain since the 2004 injury. He records in his first affidavit that he tried to work from time to time and there was a nursery business close to his home where he sometimes got a few days work. He records there were times when he had to stop work and go home and really that is all that is said.[26] In the second affidavit, the plaintiff said that he last worked in December 2009, when he did some casual work at a nursery, but he does not describe where that was, for how long he worked, nor the circumstances of his leaving that employment.[27] His third and fourth affidavits do not elaborate on this topic.
[26]PCB 30
[27]PCB 33
25 At the commencement of this case, the defendant was given leave to file some affidavit material from an employer, Mr Grasby, for whom the plaintiff worked in 2009.[28] In oral evidence, he recounted working for Tillage in June to December 2008.[29] He then worked for Saltech, starting probably in about March or April 2009, and was there for six months.[30] After that he worked for a further landscape firm, Impala, for about two months. Following that, he commenced working for Mr Grasby with his firm, Super Gardens. The hours he worked indicate virtually uninterrupted employment, save for some wet days when outdoor work was not possible over 46 working days.[31]
[28]DCB 76-77
[29]T34
[30]T35
[31]Exhibit 1
26 The fact that so little was mentioned about these employments in the plaintiff’s four affidavits, nor in any meaningful way to some doctors assessing his capacity for work, does not reflect well on the plaintiff’s credit. It adds to the comments I have already made about the reasons why I do not accept the plaintiff as a reliable witness about his histories, injuries or their consequences.
27 Nevertheless, while credit and the assessment of the plaintiff are important in these applications, the medical evidence itself needs to be examined.
28 At the heart of this application is an evaluation of the plaintiff’s pain. I have already made a comment about him as a witness. Aspects to examine by way of evidence about pain have been said to comprise what the plaintiff says about pain both in court and to doctors, what the plaintiff does about pain with respect to treatment, what the doctors say about the extent and intensity of his pain, as well as what the objective evidence says about the disabling effect of pain.[32]
[32]Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraph 11
29 In view of his credit, it is particularly important to look at the evidence about what the plaintiff has done or not done in relation to dealing with his pain. It is relevant that with respect to both paragraph (a) and (c) applications, there is hardly any evidence before the Court from any treating specialist.
30 There is one attendance on a surgeon, Mr C Xenos, in 2006 for the spinal pain.[33] With respect to the paragraph (c) application, the medical reports indicate he was referred to a psychiatrist, Dr Adey, for treatment but no material from that specialist has been tendered. There is no evidence whether the plaintiff ever went to see Dr Adey. In all the material presented to the Court, there is nothing from any treating psychiatrist with respect to the paragraph (c) condition.[34] His affidavit records seeing a Ms McDonald, psychologist, but there is no evidence from her.[35]
[33]DCB 27
[34]PCB 52
[35]PCB 41
31 The plaintiff’s treatment thus, for both the spinal injury and the psychiatric condition, has basically consisted of a succession of general practitioners and little else in terms of the evidence tendered.
32 The first was a Dr Li, general practitioner, who saw the plaintiff on 9 December 2004.[36] He diagnosed that the plaintiff had aggravated his previous neck and thoracic spine injury suffered in 1992. He gave a WorkCover certificate and felt that he should be able to return to modified duties with a lifting limit and avoiding frequent bending. He has not seen him, it seems, other than on two occasions, and his report does not assist in dealing with the issues in these applications nine years later in 2013.
[36]PCB 43
33 Treatment was then taken over by Dr Peter Janovic, a general practitioner at another practice, who saw him on 23 December 2004. This doctor reports under the heading of the Brice Avenue Medical Centre[37] but it is clear from the clinical notes that he saw the plaintiff also under the name of the Mooroolbark Medical Centre.[38] Dr Janovic reported that the plaintiff had a previous injury to his thoracic and cervical spine but that he had been functioning at a reasonable level with no major impact on his day-to-day activities until the 2004 injury. He thought that the plaintiff was not capable of any employment, when reporting in February 2005, but was “… hopeful of him having a graduated return to work, depending on his response”.[39] He does not give any opinion about a permanent incapacity when reporting some two months after the 2004 injury.
[37]PCB 45
[38]DCB 47-57
[39]PCB 46
34 The notes from the clinic are illustrative of the plaintiff’s condition in the two years or so prior to the subject accident. They show the inadequacy of the affidavit evidence. They indicate that he was described as having chronic back pain on 23 May 2003.[40] He was attending the general practitioner for back pain in May 2003, October 2003, December 2003, and had further attendances into 2004.
[40]DCB 47
35 The notes record that in 2003 the plaintiff was referred to a Dr Graeme Symington for treatment.[41] It is not clear whether or not the plaintiff ever saw the doctor. There is also reference to him having seen an orthopaedic surgeon last year in a note on 10 December 2003.[42] It is unclear who that orthopaedic surgeon was and whether it was for medico-legal purposes or for treatment. There is a note about the plaintiff taking eight Panadol a day for years and having seen numerous doctors and had numerous tests.[43] Who these doctors are is not known. There is further reference of him being encouraged to go and see Dr Symington.[44] A further notation appears that on 11 February 2004, the plaintiff was seeing a neurologist and it would appear that that was Dr Katrina Reardon.[45] There are also various medical prescriptions in relation to this condition.
[41]DCB 48
[42]DCB 48
[43]DCB 48
[44]PCB 48
[45]PCB 48
36 The prescription list that appears in those notes indicates more medication was required from this practice following the 2004 injury than prior. The general tenor of the treatment, in comparing the before and after periods, is that it is much more active in terms of referrals and investigations before the December 2004 injury. With respect to treatment, I conclude that the aggravation that occurred in the 2004 injury did not lead to any active treatment from Dr Janovic that would reflect the aggravation as being very serious. I have already commented that there has been only one referral to a specialist for the 2004 injury to the present time. One qualification on this is that there are some references to a Caulfield Pain Clinic in some later reports. No evidence from there was tendered.
37 As there has been no further report from Dr Janovic later than February 2005, he is of no assistance in determining now, almost nine years later, what permanent consequences if any flow from the 2004 aggravation. His notes though do make the before picture clearer.
38 Dr Katrina Reardon, consultant neurologist, who was mentioned in those notes, has provided three letters. The first is on 11 February 2004. It recorded that the plaintiff had a history of back injury in 1992 and she described it as chronic back pain with problems in the neck and thoracic spine. He had tried a number of medications and was suffering from a lot of cervicogenic headaches. He had lost weight over the last six to seven years, had a lot of sleep disturbance, had been seen by an orthopaedic surgeon and had a number of radiological investigations. The medications she described in February 2004 were Panadeine Forte (eight per day) and Vioxx (25 milligrams daily).[46] She adds to the before picture of very significant pain indeed.
[46]DCB 1
39 Dr Reardon’s opinion was that the plaintiff presented with chronic back pain related to his thoracic and cervical spine, as well as cervicogenic headaches after the 1992 injury. She felt he needed further investigation, a rheumatological opinion and an MRI scan of his spine. She made arrangements to that effect.[47]
[47]DCB 2
40 Dr Reardon’s next letter to the general practitioner is on 31 May 2004. It described the MRI scan showing an old T12 fracture with a mild central disc protrusion at that level contacting the thecal sac, as well as degenerative changes at the lumbar spine and cervical spine levels. She thought it likely that he had suffered a very small wedge fracture at T12. She reported he still had quite a lot of back pain and noted spasm in his back. She thought pain management was reasonably well controlled, but he required regular analgesia in the form of Panadol (six to eight tablets a day), as well as some medication for the headaches (by way of two tablets at night).[48]
[48]PCB 47
41 The final letter from Dr Reardon was on 8 September 2004. The plaintiff had returned for review on that day and she noted he had continuing problems with headaches, which occurred nearly every day and would start at the back of his neck. She noted he took eight to ten Panadol a day, and she cautioned him about such a level of ingestion. She thought a different medication may help him with respect to muscle spasm and his headaches.[49]
[49]DCB 3
42 It is clear from this treating doctor, who saw the plaintiff in February 2004, May 2004 and in September 2004, that the plaintiff was still having significant problems two months prior to the 2004 injury. Given the length of time between that 1992 injury and the need for ongoing specialist treatment in 2003 and 2004, I find the plaintiff had probably suffered very significant symptoms over that twelve or so years. Treatment was still very active.
43 Some other material which I have in order to evaluate the plaintiff’s medical condition prior to the 2004 injury is from the general practitioner, Dr Robert Beovich. He reported to TAC Law on 13 August 2003.[50] He referred the plaintiff to a Dr David Vivian, musculoskeletal pain consultant, who reported on 10 August 2001.[51]
[50]PCB 169
[51]PCB 164
44 Dr Beovich reported that he first saw the plaintiff on 13 January 2001. He recorded a full history of upper back and neck pains at that time. A diagnosis of muscular sprain was made and a referral to Dr Vivian was noted on 14 April 2001 for ongoing thoracic aches. Medication was prescribed by way of valium for back muscle spasm and Tramal for back pain the next month. In September 2001, the plaintiff was referred to St Vincent’s Hospital Pain Management Unit at the behest of Dr Vivian. In February 2002, a CT scan of the thoracic spine was required. A referral then took place to an orthopaedic surgeon for further assessment and there was a notation that this was by Mr Michael Fogarty. There is no material tendered from Mr Michael Fogarty and the plaintiff could not recall whether he had seen Mr Fogarty. I accept from this letter of Dr Beovich that the plaintiff had probably been seen by Mr Fogarty. The plaintiff last saw Dr Beovich on 23 April 2002 when he was still complaining of thoracic muscle aches.
45 It needs to be noted that this is some ten years or so after the 1992 injury to his spine. He was still being treated. Treatment before the 2004 injury was far more extensive and active than after it.
46 Dr David Vivian reported on 10 August 2001 that he saw the plaintiff in July that year. The plaintiff had had thoracic, neck, head and back pain since 1992. The pain was slowly progressive. It had affected his ability to continue work as a screen printer and he had worked after that as a taxi driver, but could not work full time. He noted that the plaintiff reported his social and recreational system had gradually deteriorated. He was depressed and he had separated from his wife due to these symptoms as much as anything. He described that he could not sleep at all when his headaches were bad and that he had lost weight as a result of his appetite having diminished.[52]
[52]PCB 164
47 At around this time in June 2001, the Work Cover affidavit sworn by the plaintiff deals with a lot of these complaints related to the 1992 injury.[53]
[53]DCB 73-75
48 The opinion of Dr Vivian was that in 1992 when the plaintiff had hit his thoracic spine, this resulted in thoracic and neck pain. It was associated with severe disability. He thought the current situation (in 2001) directly related to that 1992 incident and may well have produced a disc injury or facet joint injury. He stated:
“He has developed a substantial pain problem since this time. This pain problem could be described as being a fibromyalgia-like condition, associated with widespread pain, tenderness, sleep disturbance, and fatigue. He is severely de-conditioned. This may be as a result of his pain, with consequential depression, but it also may reflect some underlying medical condition.”[54]
[54]PCB 165
49 He suggested blood tests and x-rays. He thought that the treatment option included a pain management approach, and suggested St Vincent’s Hospital. However, he felt it was unlikely that any one specific treatment would make much difference. The condition was stabilised. The 1992 injury had resulted in a permanent and stable loss of function of the neck and back in the region of 20 per cent. The pain condition was compounded by the development of depression and fibromyalgia.[55]
[55]PCB 165
50 I accept that in 2001, Dr Vivian was describing a pain problem that had stabilised and was permanent, having caused permanent lost function. He was doubtful about the efficacy of any treatment. I accept the plaintiff at that stage had a permanent spinal condition that limited his work and daily life.
51 Dr Vivian re-examined the plaintiff on 17 April 2012 for medico-legal purposes rather than on a treatment basis. He described that the generalised back pain the plaintiff had when he saw him back in 2001 had been progressive and that “By the time I saw him his life had fallen apart”.[56] It was a benign Chronic Pain Syndrome associated with an initial injury but by that time was so widespread he needed a pain management program.
[56]PCB 110
52 Dr Vivian took a history of the plaintiff’s 2004 injury and commented on that in terms that are not easy to understand. He stated that on 1 December 2004, the plaintiff felt sharp interscapular pain and had had persistent thoracic pain ever since, in association with other pain. He thought it was possible that he had sustained an injury to the musculoskeletal structure, such as a disc, on that day, but it was impossible to prove. The MRI showed nothing particularly relevant other than genetic change common in the asymptomatic population. He diagnosed:
“It might also be considered that he sustained a reversible soft tissue strain on that occasion, and that the chronic pain that has remained in this region is part of his overall chronic pain syndrome which could also be diagnosed as fibromyalgia.”[57]
[57]PCB 113
53 The terminology used here is very similar to what Dr Vivian was describing about the stable and substantial pain problem eleven years earlier in 2001.[58] In 2001, it was permanent. He thought that the plaintiff had a profound incapacity at the moment with widespread pain, including headaches, and that it was unlikely that he could work in any employment other than a simple job, part time. He thought this was likely to be a long-term incapacity and that his complaints would affect, to a significant extent, his ability to function in social, domestic and recreational activities. The only treatment that might help would be a pain management program, and the prognosis was that he was likely to have a persistent disability.[59]
[58]PCB 165
[59]PCB 114
54 When reading this report and comparing it with his 2001 report, I do not accept that there has been any 2004 aggravation that on a before and after analysis indicates any significant change in either symptomatology or the impairment of function and consequences flowing therefrom. While I accept that the plaintiff has suffered an aggravation in 2004, I do not accept that that aggravation has resulted in any consequences resulting from or materially contributed to by that aggravation per se. These reports read as a problem that was nine years old when Dr Vivian first saw the plaintiff in 2001 and which continued in more or less the same way after 1 December 2004.
55 The only other doctor who saw the plaintiff before the 2004 injury was a Mr Gary Grossbard, orthopaedic surgeon, who first saw the plaintiff in April 1995 at the request of a general practitioner, Dr F Wilk.[60]
[60]PCB 154
56 Dr Grossbard then saw him again for medico-legal purposes in 2011 and again in March 2013. He accepted there had been an aggravation of the pre-existing spinal changes in December 2004 and that there may well have been psychological issues after so many years of inability to function normally.[61]
[61]PCB 95
57 However, he thought that the aggravation of December 2004 was an exacerbating factor in “... the sequence of multiple exacerbations of pain, both before and after December 2004”.[62] In his 2013 report, he specifically alluded to a Chronic Pain Syndrome that was associated with this man’s “twenty years of injury”. He does not point to any consequences of the 2004 injury as a separate injury. He thought the psychological component to the plaintiff’s disability was significant.[63]
[62]PCB 96
[63]PCB 98
58 Mr Grossbard does not disentangle the physical issues from the psychological. He really combines the two when he gives an opinion that the plaintiff was unlikely to return to work. Physical work was out of the question, and even lighter work may be difficult because of the psychological issues which he felt were better assessed by practitioners qualified in that area. He felt the plaintiff needed ongoing treatment with pain management and psychiatrists.
59 I read his opinion in terms of incapacity as being a combination of both the (a) and (c) conditions without any real disentanglement. He said:
“Whilst this man does have a physical capacity, it is not reasonable to divorce this from the psychological issues which together create the clinical situation.”[64]
[64]PCB 98
60 Accordingly, Mr Grossbard really just lumps the whole picture together by way of clinical situation and the consequences that flow from the total symptomatology, both organic and psychiatric.
61 The next general practitioner in line was Dr G Watt in Pakenham who provided five letters or reports. Dr Watt started seeing the plaintiff in July 2005 and he recorded a history of the 1992 injury and provided his first detailed report on 23 January 2006.[65] There are some earlier documents[66] and they include an assessment that had taken place, apparently at the Caulfield Pain Clinic. There was no detail given about this assessment and no material from that clinic was tendered.
[65]PCB 50
[66]PCB 48-49
62 In Dr Watt’s report, he does not even mention the 1 December 2004 accident. He noted the involvement of a neurosurgeon, Mr Chris Xenos, the Caulfield Pain Management Clinic, as well as a referral to a psychiatrist, Dr Adey, for management of depression. He thought that the plaintiff had no capacity for regular work due to his constant back pain, frequent headaches and depression.[67] He felt that the Caulfield Pain Management Clinic and an improvement in his psychological health might improve his prospects of returning to work.[68]
[67]PCB 50
[68]PCB 51
63 In his further reports of December 2006[69], May 2010[70] and in a consultation note of 17 August 2009,[71] there is still no mention of the 1 December 2004 accident. Accordingly, Dr Watt gives no support to the plaintiff’s application under paragraph (a), that the aggravation in 2004 has led to very considerable consequences. Indeed, everything Dr Watt says would appear to relate to the 1992 problem, although it is interesting to note that the clinical note on 17 August 2009 records that the plaintiff strained his lower back when swinging an axe and required a week off work.[72]
[69]PCB 52
[70]PCB 54
[71]PCB 55
[72]PCB 55
64 It would seem also that between September 2006 and May 2010, the plaintiff was only seen once with respect to his back condition.[73] This is consistent with my finding that while there was an aggravation in December 2004, it was not of any great moment. It caused some symptoms to flare up, consistent with some increase in medication, but resulted in minimal treatment compared to the years prior to the 2004 injury.
[73]PCB 52-55
65 Mr C Xenos, consultant neurosurgeon, wrote back to Dr Watt on 31 January 2006.[74] He noted chronic thoracic pain and he took a history of the December 2004 incident and essentially chronic pain focused in the thoracic spine and neck area and, to a lesser extent, in the back. He said it was important to note there was no sciatica and there was no “…true objective spinal cord compression”. He thought that the plaintiff had features of “… chronic illness behaviour and Chronic Pain Syndrome. He looked depressed.”[75]
[74]DCB 27
[75]DCB 27
66 It has not been established whether Mr Xenos’ favoured consideration of the rehabilitation and pain management program ever took place. This is consistent with the organic aggravation injury not amounting to one that has been productive of serious consequences.
67 The next general practitioner was Dr Modeley, who first saw the plaintiff at the Casey Medical Centre on 10 December 2010.[76] He took a history of the 1992 original injury with the aggravation in 2004 noted. He gave an opinion about a chronic non-specific back pain related to a crush fracture of T12 in 1992 and a non-specific aggravation in 2004. He stated:
“Taking this man’s injuries at face value, he likely has a permanent incapacity for duties that involve bending, twisting and heavy lifting. He is therefore unfit for pre-injury duties for the foreseeable future. I consider the above incapacity to be permanent in all likelihood. Although I stress that I only have his description of events, with no imaging, specialist opinion or substantiation of the history provided.”[77]
[76]PCB 56
[77]PCB 57
68 He also noted that the injuries were likely to restrict social, domestic and recreational activities. Future treatment was likely to be the continued use of medication and it would be desirable to have the involvement of pain management and rehabilitation specialists. He thought the prognosis was one for continuing pain and disability with little prospect of improvement.
69 Dr Modeley’s opinion does not distinguish sufficiently between the 1992 condition and the 2004 aggravation in assessing consequences. He further reported in January 2012. By this time he thought the diagnosis was one of a Chronic Pain Syndrome.[78] He thought there was a permanent incapacity for work and again gave a similar prognosis with restrictions on work duties, but his further report, similarly, does not in any way assist in analysing whether the non-specific aggravation commencing in 2004 was causative of any serious consequences as a separate injury. On reading his reports, the better view would seem to be that he just bundles together 1992 and 2004 and gives an overall opinion about the plaintiff’s condition without the assistance of the radiology and other material that he mentioned had not been provided to him.
[78]PCB 59
70 The next report in October 2012 does not really take the matter any further. The Chronic Pain Syndrome diagnosis was repeated but again, the contribution the 2004 injury played in relation to that is not made out. The 1992 and 2004 incidents are still lumped together as it were. The overall opinion about consequences and incapacity make it impossible to draw conclusions about the contribution from the 2004 injury, independent of the 1992 trauma.
71 At this practice, Dr Modeley was followed by a Dr W Zhao, who took over the plaintiff’s treatment probably early in 2013.[79] Dr Zhao had his predecessor’s medical records and he personally had seen the plaintiff on some eight occasions when he reported on 7 October 2013. He agreed with Dr Modeley’s medical opinions that there was a pain syndrome of his thoracic spine that would preclude him from employment. It would also impact by way of precluding him in relation to some social, domestic and recreational activities. These activities are not spelt out specifically.[80]
[79]PCB 64
[80]PCB 64-65
72 He also made a comment that the plaintiff will continue to need the support of his general practitioner and psychologist. He was referring to Ms McDonald but there is no material tendered from her.
73 Dr Zhao’s opinion suffers from the same defect in terms of advancing this application, in that he does not in any way distinguish between the 1992 injury and the 2004 aggravation. He concludes his report with the comment:
“I am hopeful that he can return to appropriate employment in due course. However, Mr Raymond’s condition remains essentially unchanged, and he is likely to have limited career prospects.”[81]
[81]PCB 65
74 I do not read this last comment as one making out permanent consequences in relation to incapacity for suitable employment. Rather it seems to express some optimism that the plaintiff would return to employment with some limitations in the future but certainly not permanent incapacity for suitable employment.
75 Before dealing with the medico-legal opinions it is worth noting that there have been no less than five treating practitioners who the plaintiff has attended over the nine years since the 2004 aggravation, and apart from the reference mentioned to the psychiatrist, Dr Adey, which may or may not have ever taken place, there is only the letter from Mr Xenos by way of specialist treating evidence regarding either the paragraph (a) or paragraph (c) injuries. A psychologist, Ms McDonald, is mentioned but there is no opinion from her.
76 A Dr Teh at the Caulfield Pain Management Clinic is described as having been responsible for the recommendation to refer the plaintiff to Mr Xenos.[82] There has been no material provided by the plaintiff from Dr Teh or from the Caulfield Pain Management Clinic. Thus, no material indicates the extent, if any, of treatment at Caulfield.
[82]PCB 52
77 For the length of time involved since 2004, there is a paucity of treatment in regard to the spinal condition and the psychiatric condition. This is consistent with my finding that neither injury meets the test of “serious injury”. There is no evidence of significant continuous narcotic medication that is often reflective of a level of severe pain. Apart from an increase in medication in the immediate months following December 2004, the evidence about medication over the course of nine years does not point to extensive reliance on it.
78 The active referrals for spinal injury to different specialists in the eighteen months before 2004 are also indicative of a level of symptomatology that is a stark contrast with the last nine years.
79 There is no lay evidence in this application to corroborate any of the complaints of pain and disability the plaintiff makes. This, of course, is not in any way compulsory in this jurisdiction, but given the amount of time involved since December 2004 and the unreliability of the plaintiff’s evidence, the fact remains that there is no independent lay corroboration of consequences.
80 Looking at the treating evidence overall, I find the plaintiff does not prove that the paragraph (a) aggravation as a separate injury resulted in or materially contributed to any consequences that could be fairly described as “at least very considerable”.
81 With respect to what disentanglement is required in order to assess the organic contribution component from the psychological or psychiatric, that same body of treaters’ evidence does not sufficiently disentangle it to make it clear. Recently this task has been described as a “... near impossibility of separating out psychological from organic causes of pain and disability”.[83] The paragraph (c) injury has also not been proved to be “serious” on the treaters’ material.
[83]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph 147
82 The first of the medico-legal witnesses who had not had the benefit of seeing the plaintiff before 2004 was Mr Thomas Kossmann, orthopaedic surgeon, who saw the plaintiff in 2011 and then twice in 2012. The history he takes is defective in a number of respects. He records that the plaintiff did some casual work since the 2004 accident.[84] The history he has recorded is deficient in terms of what work the plaintiff has been able to do after December 2004.[85] More importantly perhaps, in relation to the history he has of the plaintiff’s 1992 injury and the treatment he required for that, it is not consistent with what the medical notes reveal about investigations and specialist referrals in the eighteen months or so prior to December 2004.[86]
[84]PCB 66
[85]PCB 66–67
[86]PCB 67, DCB 47–57
83 Mr Kossmann thought that the plaintiff had developed a severe pain syndrome following an injury to his spine in December 2004 and he thought he could detect a fibromyalgia-like syndrome.[87] He was asked a series of questions which seemed to attempt a disentanglement but those questions are somewhat equivocal in the way they are framed. Nevertheless, he thought that the plaintiff did not have a capacity to perform suitable employment, excluding consideration of any psychological or psychiatric condition.[88]
[87]PCB 68
[88]PCB 69
84 When he reviewed the plaintiff in 2012 he described the pain syndrome as now severe[89] and repeated some pessimism about the prognosis. He also indicated “... without further counselling and additional therapy, he will not cope with the pain issues in the long term. Mr Raymond also has to undergo psychiatric counselling.”[90] Again, the real deficiency in the history he has of the 1992 injury is apparent and excludes any mention of the active treatment the notes indicate the plaintiff was having through 2003 and 2004 up to December.[91] Nevertheless, he did think that the December 2004 injury may have been an aggravation of a pre-existing condition.
[89]PCB 73
[90]PCB 75
[91]PCB 73
85 In the final report from Mr Kossmann he seems to change his opinion somewhat. This may be due to the MRI scan of 6 March 2012. However, not hearing from the doctor, this is not clear.[92] Whatever the reason, while he thought the plaintiff was still suffering from the pain syndrome, he said that while the incapacity for pre-injury duties was permanent “... I am more positive that Mr Raymond may be able to return in the working process since he has stopped drinking massive amounts of alcohol”. A little further on he stated “In my opinion, Mr Raymond does have now the capacity to perform suitable employment.”[93] He seemed to take into account the concepts involved in the definition of suitable employment in reaching this opinion.[94] He repeated again in his final comments that the prognosis has improved.
[92]PCB 78
[93]PCB 79
[94]Section 5 of the Act
86 Given that he considered the plaintiff now has the capacity to perform suitable employment, his opinion does not support a view that the paragraph (c) condition, which is clearly where he saw causation, can be described as severe. While he very briefly alluded to a preclusion in relation to his social, domestic and recreational activities, he did not elaborate on that, except to say that the plaintiff was a very sporty man and since the accident has not done any sport at all.[95] In view of what I have concluded about the plaintiff as a witness, I am not satisfied that there was any particular sport that he is now precluded from that he was involved in actively before 2004. On the question of disentanglement, it would appear that the clear view of this surgeon was that the impairment of function that leads to consequences, whatever they may be, is the result of the paragraph (c) injury.
[95]PCB 80
87 Mr Kenneth Brearley, orthopaedic surgeon, saw the plaintiff in 2011 and 2012. He had a much more accurate history of the work that the plaintiff had been able to perform after December 2004, as well as more information in regard to the 1992 injury. It is nothing like a full history however of the treatment that was still occurring, even in 2003 and earlier in 2004.[96] He also referred to an assessment by Dr Jason at the Caulfield Pain Management Clinic, and that is a doctor from whom no material has been provided, nor was he even mentioned in oral evidence.
[96]PCB 82
88 Mr Brearley considered that there was an aggravation of pre-existing spinal pathology that had occurred in December 2004.[97] He then had similar questions addressed in an attempt to disentangle some of the issues that are raised in relation to the paragraphs (a) and (c) enquiry. It is fairly clear that he considered that it was a physical injury still causing the plaintiff to be unable to perform his pre-injury duties.[98] He thought there was a limited capacity for part-time work, of three hours a day at four days a week with limitations and he did not think there was any likelihood of improvement.[99]
[97]PCB 84
[98]PCB 85
[99]PCB 86
89 When he saw the plaintiff in 2012, he considered that there had been a Chronic Pain Syndrome that had developed as a result of the stress and anxiety. This had not been mentioned in his earlier report but, nevertheless, he seemed, in answer to the same series of questions that were addressed to him, to prefer the view that it was a physical injury that was preventing the plaintiff from performing his pre-injury duties. He thought he still had a capacity for some lighter work but he does not, in 2012, put any limitation by way of part-time or designated hours. He did refer however to his previous report, so without hearing from the doctor, it may or may not be that he was adopting the hours that he had stated previously. He thought the prognosis was poor and the incapacity was permanent.
90 His overall view seemed to be that the incapacity that the plaintiff suffers from had physical origins which seem directly contrary to what Mr Kossmann had expressed in 2011 and 2012.
91 The plaintiff was assessed in January 2012 by Dr Robyn Horsley, occupational physician, who again agreed that a disability that he had suffered since 1992 had been aggravated further in 2004. She thought that the plaintiff had work restrictions on certain physical activities but it appears from reading her report that she is really just combining the 1992 injury and the aggravation in 2004 with respect to these consequences. For example, she said:
“Mr Raymond presents with significant disability. He has been out of the workforce now for a two year period. His disability dates back to 1992, although aggravated in 2004.”[100]
[100]PCB 108
92 While she considered that he had a capacity for part-time work in suitable duties, to the extent of 15 to 20 hours, I read her opinion as really not assisting in the task of trying to assess just what the 2004 consequences are, absent the 1992 injury. In other words, there is no delineation of the impairment consequences of each injury which is required in an aggravation case such as this.[101] The aggregation is impermissible.[102]
[101]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 at paragraph 32
[102]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (supra) at paragraphs 33-35 and 38
93 Associate Professor O White, neurologist, saw the plaintiff in 2012 and he again takes an inadequate history of the treatment of the 1992 injury. He has little of the detail that the clinical notes reveal about 2003 and 2004 prior to December.[103] He took a history of significant problems with alcohol and drug addiction, but in the end his opinion was that the plaintiff had developed a Chronic Pain Disorder. He thought there was no evidence of orthopaedic disruption that would explain the severity of his pain, nor of neurological disruption.[104] He described it as a significant Chronic Pain Disorder of complex aetiology with a significant psychological component. He used some terms that, without hearing from him, are hard to understand when he said about the Chronic Pain Disorder:
“It may well have a significant psychological component but also may be secondary to a disordered central nociceptive network, such that he has an abnormal appreciation of pain. The complexity of his pain is such that one cannot determine with any certainty what the main contributing factors, but certainly it would appear that he has an abnormal response to the structural abnormalities evident on his radiological studies.” [105]
[103]PCB 116
[104]PCB 118
[105]PCB 119
94 Professor O White thought that the injuries had contributed to the mechanical change, and by injuries he would appear to be referring to the two episodes of injury to his spine, that being 1992 and 2004. He really seemed to combine them when he dealt with consequences. He added also “It seems likely there has been a contribution from his general working life, as well as his general physical life outside work”.[106] He did not think the plaintiff would be employable in the future but the cause of that condition seems to be one that is multi-factorial. The report does not establish that the 2004 aggravation on its own was causative of any serious consequences under (a) or (c).
[106]PCB 119
95 Dr Peter Blombery, consultant physician, examined the plaintiff in November 2012. The history he took of the 1992 injury is deficient. It did not deal with anything like the ongoing treatment still occurring in 2003 and 2004.[107] He thought that a lot of the plaintiff’s pain in his back was caused by previously asymptomatic degenerative changes and he felt that the plaintiff’s injuries to his spine were complicated by a pain syndrome.[108] He speaks about injuries plural as being work related and employment was a significant contributing factor to the injuries and their ongoing complications. It is pretty clear that he was combining 1992 and 2004 in terms of their causative link to the pain syndrome. This doctor is on his own in saying that the pain syndrome is an organic disorder of pain nerve pathways. I do not accept this opinion. It is not fully explained how he came to a view that is not shared by any of the other twenty or so doctors involved in this application. Dr Blombery thought there were limitations on the plaintiff’s capacity to work, although he thought that he may be able to perform some light duties which would initially start at about 12 hours a week.
[107]PCB 106
[108]PCB 139
96 This diagnosis is different from all other doctors in terms of whether the pain syndrome is organic or psychological. Also, that syndrome seems to be a result of the two injuries lumped together. I do not accept that this report assists the plaintiff in establishing that the 2004 injury is serious under paragraphs (a) or (c).
97 Dr Felix Wilk, general practitioner, reported on 13 June 2000. He saw the plaintiff, firstly, in August 1994 with his history of back injuries some two-and-a-half years previously. He referred him to Mr Grossbard. The plaintiff returned again in March 1995 with recurrence of symptoms. Specialist opinion was again arranged and the plaintiff saw a specialist in April 1995. I assume that was Mr Grossbard. A possible diagnosis of muscle spasm secondary to possible facet joint injury was noted and mobilisation was suggested, as well as regular swimming.[109]
[109]PCB 155
98 This general practitioner has not seen the plaintiff since 1995 so his opinion is very dated. His report indicated that over a number of years following the 1992 injury, the plaintiff’s condition was such that referrals to specialists were being organised. The notes in 2003 and 2004 indicate that such referrals were still ongoing twelve or so years after that original injury and virtually up to the December 2004 injury.
99 Mr P Rustomjee, surgeon, reported to a previous firm of solicitors acting on behalf of the plaintiff in October 2000 regarding the 1992 injury.
100 Mr Rustomjee took a history that since 1992, the plaintiff had gradually increasing stiffness and pain in his neck, together with migraine headaches and severe pain in his mid-back. Since 1992, he had been working at various firms and was finding it extremely difficult to keep working at one firm for a long period of time as he takes time off work due to his pain in the neck and back. He complained to the surgeon of severe migrainous headaches on a daily basis which interfered with his normal daily life.[110] Mr Rustomjee thought the plaintiff was suffering from a Chronic Pain Syndrome that he had developed in his neck and back following the 1992 injury and he thought that the plaintiff should not return to the type of work he had been doing in the past.[111] He assessed him with a permanent AMA impairment.
[110]PCB 158
[111]PCB 160
101 In June 2001, Mr Rustomjee adds to that impairment with a further percentage figure that is not relevant per se but it supports the ongoing permanent consequences of the 1992 injury some nine years after it had occurred.
102 In that regard, these reports add to the before 2004 picture that supports my overall finding that the aggravation in 2004 has not led to any consequences that could be described as “serious” by way of paragraph (a) or paragraph (c). The Chronic Pain Syndrome had clearly developed in this surgeon’s view by October 2000 following the physical injury to the spine. It was severely limiting him. This is consistent with the need for ongoing treatment for twelve or so years right up until the end of 2004.
103 A series of reports from Mr R Simm, orthopaedic surgeon, commenced in February 2005 and ended in October 2013. In his first report, he described the 2004 injury as a recurrence of a longstanding spinal condition and thought that it was a relatively minor strain and that the current condition was because of his longstanding and disabling spinal pain syndrome. He was somewhat equivocal about 1992 or 2004 as to cause.[112]
[112]DCB 6-7
104 In subsequent reports, Mr Simm speaks about clinical features of a disabling spinal pain syndrome not being physically based.[113] He thought that he was unable to establish any definite diagnosis of the physical condition to explain the chronic cervical, thoracic and lumbar symptoms[114] when he saw the plaintiff in 2012. He accepted an apparent incapacity for work but as to causation, he states:
“His apparent incapacity for work seems to relate to a chronic pain syndrome, which was initiated by a work injury in 1992. I do not believe there is any ongoing contribution to his pain syndrome as a result of the incident on 1 December 2004.”[115]
[113]DCB 14
[114]DCB 20
[115]DCB 21
105 In his final report last month, he repeated that the plaintiff’s present spinal pain syndrome was really non-organic, and that:
“This man has had a fluctuating, relapsing spinal pain syndrome since 1992. The condition may have been exacerbated by physical strain of the back in the workplace in December 2004, but it is no longer possible to identify and confirm the presence of any physical factors likely to be contributing to his current clinical condition.”[116]
[116]DCB 22e
106 Mr Simm’s view was that the current consequences are related to a paragraph (c) condition as I read it but that it was a condition caused by the 1992 injury with a possible, as opposed to probable, exacerbation in December 2004.
107 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff in April 2010 and took a very inadequate history in relation to the 1992 injury and treatment.[117] He noted that “He has never made any claim for any back injury until his current claim”. This is clearly erroneous, as is illustrated by the affidavit sworn in 2001 following the 1992 injury.[118] Furthermore, the compensation claim forms illustrate that this history is completely wrong.[119] Nevertheless, Mr Dooley thought that 2004 had resulted in an aggravation of pre-existing thoracolumbar spinal problems and really just gave an AMA impairment of 5 per cent in relation to that. The report does not assist in terms of the issues for determination in this application.
[117]DCB 28
[118]DCB 73-75
[119]DCB 70-71
108 Before dealing with the evidence of the specialist psychiatrists in this case, it needs to be noted in this paragraph (c) application that there is no material from any treating psychiatrist or psychologist. The first specialist is Dr S Stern, consultant psychiatrist, who saw the plaintiff in November 2005. He diagnosed the plaintiff as suffering from Adjustment Disorder with Depressed Mood which was a reaction to his chronic back pain. He said, in relation to that back pain, “If this pain is related to the work injury of 1 December 2004 then employment has been a materially and significantly contributing factor to his psychiatric disorder”.[120]
[120]DCB 26
109 I take it by the equivocation apparent in that statement that Dr Stern is not accepting that 2004 is the cause of the chronic back pain in view of the history of the 1992 claim in which he noted the plaintiff had suffered recurrent mid-back pain there.[121] He noted also that the plaintiff lost several jobs because he took a lot of time off following the 1992 claim and he noted that the plaintiff became depressed after the back injury in 1992.[122]
[121]DCB 25
[122]DCB 25
110 Dr Stern’s view about the paragraph (c) condition was that the plaintiff was depressed in 1992 and this predisposed him to his current depressive disorder. I read this as indicating that if the chronic back pain was related to 2004, and he does not seem to accept that as a matter of certainty or even probability, then what has occurred is really an aggravation of an Adjustment Disorder with Depressed Mood in 2004.
111 I do not read Dr Stern as supporting consequences flowing from the 2004 injury as amounting to severe when viewed independently of 1992. In any event, he stated that, from a psychiatric aspect, the plaintiff was fit for work including his pre-injury duties. Thus, in any event, there are no consequences that this psychiatrist supports that would amount to “serious” whatever their origin.
112 Dr P Kornan, consultant psychiatrist, saw the plaintiff in April 2010. He noted a depressive reaction in 1990 and there is no mention at all of an attempt at suicide, ECT treatment or inpatient hospital admission. He noted further that the plaintiff gave a history that this depression was treated and he recovered from it and there is nothing else to indicate the extent of the plaintiff’s previous Chronic Pain Syndrome depression or any other psychiatric problems.[123] In any event, Dr Kornan thought that the plaintiff suffered from a Chronic Pain Syndrome, as well as an Adjustment Disorder with Mixed Anxiety and Depressed Mood.[124] From a psychiatric viewpoint, there was no limitation on his daily activities of living and there was no limitation as a result of a psychiatric state by itself on his capacity to work.[125] His report does not point to any consequences that would qualify as a serious injury under paragraph (c).
[123]DCB 37
[124]DCB 36
[125]DCB 38
113 Dr M Epstein, consultant psychiatrist, saw the plaintiff in December 2012 and he was given a much fuller history of pre-existing problems. [126] His diagnosis was again a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[127] He thought the plaintiff was unfit to return to his pre-injury duties on account of his psychiatric state, and this was likely to continue indefinitely. He thought he was not fit for suitable employment but could do part-time work and this may well benefit his depressive state.[128] He did not elaborate on what hours or the extent of any capacity for part-time work. Again, without hearing from the doctor, it is near guesswork as to whether he is speaking about a capacity that would reach 60 per cent or other level. His opinion does not discharge the onus on the plaintiff of proving consequences that can be described as serious under the paragraph (c) definition.
[126]PCB 122
[127]PCB 133
[128]PCB 134
114 He thought that with the passage of time it was unlikely that such treatment would be of great benefit and that is hardly surprising given that it was over eight years after the 2004 accident that Dr Epstein was seeing the plaintiff. I infer from his comment about the passage of time that specialist treatment may well have been of some benefit early on but it is not made clear from the brief reference.
115 Dr Timothy Entwisle, consultant psychiatrist, saw the plaintiff in July 2013. He took a history of very significant past treatment. The plaintiff had been on heavy medication and underwent psychotherapy.[129] He diagnosed an Adjustment Disorder with Anxious Mood consistent with the other psychiatrists, but also found a major depressive illness.[130] He noted the absence of any ongoing treatment and he thought that the chronic back pain from the injury in December 2004 was a contributing factor to his diagnosis which was a “recurrence” of his major depressive illness, secondary to chronic pain. He stated “He has an underlying pre-existing psychiatric condition in the form of a major depressive illness”.[131] This again seems to raise the question of an aggravation of a pre-existing psychiatric condition as the principal diagnosis. He reported the pre-existing history of depression amongst other factors, and while the December 2004 is a contributing factor, he considered that the plaintiff would be deemed to have a work capacity.
[129]DCB 42b
[130]DCB 42e
[131]PCB 42e
116 Whatever the precise diagnoses are and whether or not it truly is an aggravation of such a problem in 2004 and/or a fresh injury by way of the Adjustment Disorder, this psychiatrist does not, in any event, support any consequences that would satisfy the test of “serious”.
117 Dealing with a very large body of medical material presented in this case, I find that the plaintiff has not discharged the onus of proving very considerable consequences flowing from the impairment as a result of the aggravation of his spinal injury under paragraph (a). Further, I find that the plaintiff has not disentangled sufficiently in order to discharge the onus with respect to the paragraph (c) Chronic Pain Disorder and Adjustment Disorder. Ultimately he has not proved that he has suffered a permanent severe mental or behavioural disorder.
118 In view of my conclusions as to the plaintiff’s credit and reliability and as to the medical evidence, I am not persuaded that the vocational assessment evidence of Mrs K Henderson takes the matter any further.
119 Accordingly, for the above reasons, I dismiss the application.
120 I will hear the parties as to costs.
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