Rebosura v Stanley Hall
[2016] VCC 533
•5 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03725
| DARIUS OBOR REBOSURA | Plaintiff |
| v | |
| STANLEY HALL PTY LTD | Defendant |
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JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26, 29 February and 1, 7 March 2016 | |
DATE OF JUDGMENT: | 5 May 2016 | |
CASE MAY BE CITED AS: | Rebosura v Stanley Hall | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 533 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Pain and suffering and loss of earning damages – permanency physical and psychological injury - suitable employment – work capacity - issues of credit.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:-
Judgment: Leave Granted (Pain & Suffering only)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie QC with Mr J. Fitzpatrick | Shine Lawyers |
| For the Defendant | Mr B. McKenzie | Lander and Rogers Lawyers |
HER HONOUR:
Introduction
1 I propose to allow the plaintiff’s application to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act (the Act) to recover damages for injury arising out of the course of his employment with Stanley Hall Pty Ltd (the employer). My reasons for so ordering are set out in the paragraphs that follow.
2 The plaintiff was born in the Philippines. He is 34 years of age and married with an 11 month old baby.
3 After leaving school in 2005 the plaintiff spent some years both in tertiary studies and working. He commenced but did not complete a Bachelor of Science in Electronic Communications Engineering at the Cebu Institute of Technology before completing three years of a five-year Bachelor of Science in Physical Therapy at Velez College. It appears that a thesis and some on-the-job training was outstanding when the plaintiff left this course.
4 Otherwise, between June 2000 and August 2009 the plaintiff held various positions as a: Barista/bartender (2000-2001); purchaser/collector (2001-2002); stockyard supervisor (2002-2003); school bus driver/computer aide (2001-2004); construction supervisor (2006-2008); proprietor of his own business selling general merchandise 2006-2009); and as a baker (2005-2009).
5 In 2009 the plaintiff was sponsored by the employer to come to Australia to work in the employer’s bakery business. His employment was terminated in May 2014.
The accident, injury and aftermath (in summary)
6 The summary of these matters below is principally drawn from the affidavit material and the extensive clinical notes tendered by the plaintiff.[1]
[1] Exhibit P1, Plaintiff's Court Book (PCB) and Exhibit P2
7 The plaintiff describes the circumstances in which he suffered injury at work on 15 October 2010 in the following words:[2]
8. After finishing work on 15 October 2010 at about 5.20am (I was working as a baker), as a routine I went to my locker to get my clothes and proceed to the shower room at work. I took a quick shower and changed from my working clothes. I was walking back to my locker, I slipped on the tiled floor along the hallway due to the watery floor. The floor was covered with water. It had been left under attended by the cleaner and there was no “wet sign” or any warning at all.
9. When I slipped I saw both of my feet go up and I hit my left shoulder and my head on the tiles. The cleaner ran towards me and explained that she had heard a big “bang” sound. I asked why she left water on the floor unattended and she replied “I needed to soak the floor because there’s too much cheese sticking on it and I thought no-one was in here (the accident).”
[2] PCB 8-9
8 Later the same morning the plaintiff consulted general practitioner, Dr Tilenius, at Clinicare (the clinic). An entry made in the clinical notes records a work-related accident as a fall: “onto left sjhoulder and head. Hapened at 5.20 am today. Woke up after sleep. Now has pains when he looks up and is unable to breathe properly. Slipped on tiles he says/ (sic)”.[3]
[3] Exhibit P2
9 If, as the plaintiff deposes the doctor checked his back, shoulder and neck (“and everything was tender and painful”[4]), the findings recorded and the investigations ordered are confined to the thoracic and cervical spine. The entry records, complaint of tenderness of the upper thoracic spine on palpitation and of the neck muscles on the left side. The doctor records his impression as: “Mid thoracic spinal tenderness”.[5] Voltaren was prescribed and CT and Xray investigations were ordered to exclude fracture of the spine as a cause of symptoms. Whilst it was apparent from other entries made in the records that the results of these investigations were normal, only the results of MRI imaging obtained from March 2011 onwards were tendered.
[4] Ibid
[5] Ibid
10 When next reviewed, on 18 October 2010, the plaintiff reported pain on flexing and extending his head. He was referred for physiotherapy. On review by another doctor, Dr Long, on 27 October 2010, among other things, the notes reference: “strained neck muscles”, ongoing physiotherapy and a repeat prescription for Voltaren.
11 Entries for review by Dr Tilenius on 9, 23 and 25 November 2010 and 21 December 2010 all contain references to the left upper limb. On 9 November 2010 examination revealed full elevation and normal abduction and adduction, albeit, accompanied by reports of pain. The plaintiff reported he was getting better but remained on modified duties.
12 On 23 November 2010 the plaintiff reported his shoulder still felt tight and was sometimes sore. Examination revealed full abduction with complaint of tenderness of the musculature of the upper shoulder on palpation. The certificate for modified duties was extended and the limit on lifting of weights was increased from 10 to 15kgs. The record of a further attendance two days later suggests that problems with compliance with the weight restrictions prompted the doctor to speak to the plaintiff’s manager.
13 On 21 December 2010, the plaintiff reported his back was: “fine” but his neck remained sore.[6] On examination only the lower neck musculature was tender when palpitated. The certificate was again extended and the limit on lifting of weights was increased.
[6] Ibid
14 MRI scanning of the plaintiff’s cervical spine on 3 March 2011, repeated on 7 December 2012, 30 March 2014 and on 4 January 2016, has revealed underlying pathology.[7] This was initially reported as a small to moderately sized disc protrusion/extrusion at the C5/6 level without evidence of compression of the spinal cord. With further scanning in 2012 and 2014 the protrusion was said to have reduced in size and to appear as an annular fissure. However, the most recent scan reports progression of the abnormality shown at the C5/6 level, such that scanning now indicates that the disc osteophyte complex at C5-6 shows, in the radiologist’s words: “moderate overall cord compression…” without evidence of foraminal stenosis or cord signal change suggestive of cord oedema/compressive myelopathy.[8]
[7] PCB 29-31 and 33
[8] PCB 33
15 The plaintiff alleges frank discal injury at the C5/6 level resulting in chronic pain and disability and mental disturbance.
16 Save for periods off work due to exacerbation of symptoms, from late October 2010 the plaintiff performed modified or normal duties as a baker. When he could no longer cope with these, the plaintiff said he performed alternative lighter duties as a shelf-stacker in the grocery section of the business. Importantly, the plaintiff claims that, by May 2014, despite working lighter alternative duties, the frequency of absences due to pain was increasing. He was certified unfit for work on 13 May 2014.
17 Reports of severe pain and problems when using his left upper limb as well as clinical findings of reduced movement in the left shoulder prompted X-ray and ultrasound investigation of the left shoulder on 18 September 2014. The latter relevantly revealed: “Partial thickness incomplete tear of the supraspinatus tendon associated with subacromial bursal thickening causing impingement..”.[9]
[9] PCB 32
18 In the weeks following a cortisone injection in December 2014, the plaintiff reported his shoulder was improved with a: “much better” range of movement.[10] However, later entries in the clinical notes suggest that these benefits may have been short-lived. Notably, the shoulder condition has not been accepted by the defendant as a compensable injury.
[10] Exhibit P2
19 Following assessments by pain management specialist, Dr Muir, in April and June 2014, the plaintiff participated in a pain management program at the Dorset Rehabilitation Centre between 16 December 2014 and 24 March 2015, According to the outpatient summary, at conclusion of the program, a number of recommendations were made: that the plaintiff obtain a referral from his general practitioner for treatment by a community-based psychologist; that he continue job searching with IPAR for suitable employment; and that he attend for review by Dr Muir to discuss his lack of progress under the program.[11]
[11] DCB 67A
20 According to Dr Muir the plaintiff was discharged prior to completion of the program due to his inability: “to engage with the therapy team”.[12] Allowing for the documentary record, this observation was likely informed by the report of an exercise physiologist to the effect that the plaintiff had been unable to adhere to a low-level upper limb strengthening program in conjunction with cardiovascular retraining and, had been, so the report went:[13]
reluctant to take on education around pacing and developing a routine. Darius displayed many erratic pain behaviours during the session that were mostly inconsistent. Darius did not make any physical gains during his sessions in EP. Darius also was not able to have a direction in the form of goals to increase his physical output.
[12] PCB 62B
[13] DCB 68
21 Assisted by IPAR the plaintiff obtained work as a waiter in a café, Craven Crepes. He worked for some weeks from late February 2015. The plaintiff deposes he could not sustain these duties, even on a part-time basis, due to exacerbations of pain. The clinical notes show that the plaintiff was again certified unfit for all duties from mid-April 2015.
22 The plaintiff has been under the care of, in the main, Dr Long, since October 2010. To date the plaintiff has followed a conservative treatment regime consisting of medications, periods of physiotherapy and cortisone injections (a cervical epidural in May 2013 and the injection into the left shoulder in December 2014). From time to time, where his expenses have not been met by WorkCover, the plaintiff has funded treatment, including some physiotherapy expenses as well as the cost of the cortisone injection for his left shoulder condition.
23 He was last seen by treating orthopaedic specialist, Mr Quan and treating rheumatologist, Dr Nikpour on 15 February 2013 and 18 November 2013 respectively. Apart from anti-depressant medication, to date, the only formal psychological assistance received was during the plaintiff’s attendance at the Dorset Rehabilitation Centre. He was last reviewed by treating pain management specialist, Dr Muir, on 11 February 2016.
24 As to the plaintiff’s recent medication regime, I note that at various times during 2014 and April 2015 Dr Long prescribed the antidepressant, Cymbalta. The anticonvulsant and neuropathic pain relief medication, Lyrica, was prescribed from January 2014. It appears that by 18 April 2015 prescribed medication involved a combination of Cymbalta, Lyrica and the anti-inflammatory, Mobic. The clinical notes, however, show that the plaintiff reported side-effects he attributed to the Cymbalta medication. The pain relief medication, Panadeine Forte continued to be prescribed until 3 March 2015, up to 8 tablets daily. The record made before then shows that the plaintiff had previously reported excessive use of Panadeine Forte.
25 The clinical notes show that on 18 April 2015 Dr Long substituted the opiod analgesic medication, Palexia SR for Cymbalta and Lyrica with some positive results. His report dated 20 May 2015 tells us that, at the time, Dr Long also added a different anti-inflammatory, Meloxicam, to the pain relief regime.
26 In November 2015 the plaintiff commenced taking the anti-depressant, Sertraline. He was again prescribed Lyrica, the latter to assist in pain management. Apart from reducing the dose of Lyrica, between December 2015 and January 2016 Dr Muir substituted Targin, another opiod analgesic medication, for Palexia. He said he asked the plaintiff to reduce his reported intake of Panadeine Forte. In December 2015 Dr Muir believed the plaintiff more suited to participation in an intensive cognitive behavioural program, as provided by the Barbara Walker Centre for pain management rather than attempting to improve the plaintiff’s functional level by making changes to his pain relief medication.
27 As I understood the evidence at hearing, currently the plaintiff is prescribed Palexia SR (twice daily), Lyrica (150mg daily) and Meloxicam for pain relief. Sertraline continues to be prescribed.
28 As mentioned, the clinical record to 8 September 2015 shows that the last repeat prescription for Panadeine Forte (the plaintiff deposes he takes up to six tablets daily for “breakthrough pain”[14]) was written on 3 March 2015. As Dr Long explained at hearing, Panadeine Forte and Palexia are similar medications and should not be taken at the same time. Having regard to this evidence and the history of prescription of Palexia or Targin since April 2015, I could not be satisfied that prescription of Panadeine Forte was recommenced after March 2015 by either Dr Long or Dr Muir.
[14] PCB 21
29 In February 2016, based on the abnormality revealed by the up-dated MRI scans and what he understood from the plaintiff was a progressively worsening disability since attending the pain management program, Dr Muir recommended re-evaluation of the plaintiff’s spine by a spinal surgeon. At hearing, the plaintiff said Dr Muir advised him to see a surgeon before consulting him again.[15] An appointment has been made for review in August 2016 at the neurosurgical department of St Vincent’s Hospital.
[15] TN 137
30 As my more detailed discussion of the medical evidence shows in due course, where this can be discerned from their report/s, most treating and/or medico-legal specialists appear to have proceeded on the basis that the accident caused the pathology shown at the C5/6 level irrespective of how this pathology is characterised.
31 The plaintiff placed particular reliance on the diagnosis of his medico-legal specialist, neurosurgeon, Mr Brownbill. He had reviewed the earliest films when, in June 2015, Mr Brownbill reported:[16]
[16] PCB 84-85
Radiological investigations have demonstrated an isolated derangement of the C5-6 cervical intervertebral disc with protrusion and annular tear (which has progressively resorbed over subsequent investigations).
…
I consider this man in the described fall had sustained soft tissue injuries to structures about the cervical spine with also C5-6 intervertebral disc derangement.
32 Review of the latest film did not cause Mr Brownbill to alter his earlier opinions. On 17 February 2016 he reported:[17]
It does not alter my previously expressed opinions. The report indicated the significant derangement at C5-6 with protrusion and such an increase of protrusion is consistent with occurring as a result of the ongoing damage to the outside portion of the disc sustained in the described fall which progressively allows further disc protrusion.
[17] PCB 89
33 On the other hand, the defendant relies on the opinion of its medico-legal specialist, orthopaedic surgeon, Mr Dooley, following examination of the plaintiff on 22 February 2016. It was not clear from reading his report whether Mr Dooley reviewed any of the films himself. His opinion, however, is evident from the following passages:[18]
[18] DCB 68C
MRI scanning of the cervical spine in March 2011 shows degeneration at the C5/6 level with some central protrusion of the disc. There is no specific nerve root compression and no spinal cord compression. MRI scanning in December 2012 reports a small disc protrusion at the C5/6 level that is more right paracentral than central. MRI scanning in March 2014 reports bulging of the C5/6 disc. MRI scanning in January 2016 again notes some bulging of the C5/6 disc with a right paracentral component.
…..
I believe that in this episode he sustained a soft tissue injury to his cervical spine. I believe that at this point in time there was naturally occurring degeneration at the C5/6 level. Often in association with this, there is bulging or central protrusion of the disc. In my view it is most likely that these changes pre-existed the fall. I believe that the soft tissue injury has involved aggravation of this underlying degenerative disc disease.
34 Accordingly, whilst the defendant’s specialist believes the changes to the disc at the C5/6 level likely pre-existed the accident, the defendant, nonetheless concedes the plaintiff’s cervical spine was probably asymptomatic before the accident.[19]
[19] See for example, the report of orthopaedic surgeon, Mr Dooley at DCB 68C and the evidence of general practitioner, Dr Long at Transcript (TN) 293 and the defendant’s opening at TN 6
35 The plaintiff further alleges deterioration in his mental state due to poor treatment in the workplace and to stress and depression associated with physical pain and impaired functioning. An example of the former allegedly involved verbal abuse after the plaintiff showed the results of the first MRI scan obtained in March 2011 to one of his managers.[20]
[20]TN 177-178
36 The defendant’s medico-legal expert, psychiatrist, Dr Kornan examined the plaintiff on 6 August 2014. At the time, he did not consider the plaintiff depressed. This assessment took place before the plaintiff commenced the pain management program and, whilst he was prescribed a combination of the medications Cymbalta, Lyrica, Mobic and Panadeine Forte. Dr Kornan concluded the plaintiff was experiencing adjustment problems. He diagnosed a Pain Disorder Associated with Psychological Factors. At the time, Dr Kornan considered the plaintiff psychologically fit to make a graduated return to full-time suitable, alternative employment.[21]
[21]DCB 40-44
37 Notably, evidence at hearing to the effect that the plaintiff commenced driving for Uber from in or around August 2014, tends to support this psychiatrist’s assessment that the plaintiff was likely psychologically fit for a gradual return to suitable alternative employment.
38 The plaintiff relies on the opinion of his medico-legal expert, psychiatrist, Associate Professor Paoletti. Following assessment on 17 December 2015, Associate Professor Paoletti diagnosed Unspecified Depressive Disorder, with features of major depression, which also encompasses anxiety.
39 When examined on 17 December 2015 the psychiatrist considered the prescribed daily dose of Sertraline (15mg) inadequate. He recommended treatment involving referral to a clinical psychologist for psychotherapy with support by a psychiatrist for pharmacotherapy and a trial of Cymbalta instead of Sertraline. In Associate Professor Paoletti’s opinion Cymbalta is a more appropriate adjuvant for the chronic pain reported by the plaintiff.
40 Whilst, in December 2015, he considered the plaintiff psychologically unfit for work due to his “current mental state”, Associate Professor Paoletti, nonetheless, envisaged improvement in the plaintiff’s mental state and a return to work in due course with better pain control:[22]
(The plaintiff) has had some tertiary education in the Philippines, and he has worked in supervisory capacities there, therefore, in due course, once his mental state improves and pain is better controlled, retraining, within his physical capacity, would be the next step.
[22] PCB 114
41 As I understood the evidence at hearing none of the recommendations made by this psychiatrist have been implemented.
42 In February 2016 the plaintiff deposes, firstly, that Dr Long had told him he wanted to refer him to a psychologist and, secondly, that if referred he would attend a psychologist and follow the advice given.[23]
[23] PCB 22
43 At hearing, the plaintiff said he was awaiting referral by Dr Long to a psychologist and, further indicated that, subject to approval of funding, he intended to consult a psychologist once the case was concluded.
44 In summary, Dr Long believes his patient is focused on pain sensation, not pain management and his mental state is secondary to pain. The earlier trial of Cymbalta had, Dr Long said, failed and the psychological treatment received by the plaintiff as part of the pain management program had not achieved anything (“We could consider (increasing the dosage of Sertraline) it but, again, if his pain is a major factor, there is only so much that pharmacotherapy can achieve”[24] and “Well the concern has been whether that (psychotherapy outside the pain management setting) would be useful”[25]).
[24] TN 252
[25] TN 253
45 During re-examination Dr Long rejected the proposition that the psychiatrist, who had examined the plaintiff on one occasion only, was better placed than he was to assess the plaintiff’s psychiatric state.
46 Whilst under cross-examination Dr Long agreed with the proposition that the plaintiff’s psychiatric condition had not been of such severity as to warrant referral to a psychiatrist, he made the salient point that the plaintiff had expressed concern about his financial situation and was, the doctor believed, unlikely to be in a position to fund a privately appointed psychiatrist.
47 As I understood his evidence, Dr Long has not increased the dosage of Sertraline or, for that matter, referred the plaintiff to a psychologist because he doubts these measures will be useful. However, despite his reservations about the usefulness of this, Dr Long did confirm that he would still consider referral to a psychologist and would do so should his patient request this.
The application
48 Leave was sought under paragraphs (a) and (c) of the definition of ‘serious injury’ to recover pain and suffering and loss of earning capacity damages.
49 Until recently, investigation and medical treatment was focused on the condition of the plaintiff’s spine, particularly the cervical spine.
50 Whilst in opening injury at the level of the thoracic spine was also alleged, the injury to the spine alleged under paragraph (a) was ultimately confined to permanent, serious impairment of the cervical spine.
51 A further claim for injury to the left shoulder was abandoned by the plaintiff during the course of the defendant’s closing submission. As mentioned, the defendant denied that pathology revealed in the left shoulder in September 2014 was linked to the accident. That said, where, as in this case, the concurrent condition affecting a separate body function likely also contributes to at least some of the consequences alleged, the plaintiff was required to establish that impairment of his cervical spine in its physical consequences constituted serious injury.
52 Under paragraph (c) the plaintiff alleges permanent severe mental or permanent severe behavioural disturbance or disorder.
53 In the context of the Act, ‘permanent’ refers to impairment of the cervical spine or a mental or behavioural disturbance or disorder that is likely to last through the foreseeable future.
54 As to the physical injury, ‘serious’ refers to the pain and suffering and loss of earning capacity consequence, which when judged by comparison with other cases in the range of possible impairments is fairly described as being more than significant or marked and as being at least very considerable.
55 Whereas, under paragraph (c), ‘severe’ connotes something of stronger force than ‘serious’.
56 The plaintiff alleges his physical injury prevents him from working as a baker or in physically demanding positions and restricts his capacity to perform his day-to-day domestic, parenting and recreational activities through the foreseeable future. He further alleges total and permanent incapacity for work by reason of mental or behavioural disturbance or disorder.
57 As the plaintiff seeks leave to recover loss of earning capacity damages, he must also discharge the further burden imposed by section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. It was common ground that for the purpose of this provision, the plaintiff’s without injuries earnings figure, that is the sum that most fairly reflects his earning capacity had injury not occurred, was $582 gross per week or $30,264 gross per annum.
58 Based on this figure the plaintiff was required to establish that, at the date of hearing, by reason of impaired functioning of his cervical spine or impairment of his psychological functioning, he has a permanent loss of earning capacity productive of financial loss of $12,106 gross per annum or more.
59 In respect to each injury alleged, the plaintiff would not establish the requisite physical or psychological loss of earning capacity if, after taking into account his capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for employment which if exercised would result in him earning 60% or more ($18,158 gross per annum or more) of the without injuries earnings figure.
60 The plaintiff must also prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.
61 The defendant concedes the plaintiff suffered compensable injury to his cervical spine but contests that the injury is permanent or serious in its consequences to the plaintiff.
62 Likewise, the defendant concedes injury to the psyche secondary to the physical injury but contests the permanence and severity of the plaintiff’s mental state.
63 Finally, the defendant contests the assertion of a permanent loss of earning capacity productive of financial loss of $12,106 gross per annum or more. It submits the plaintiff is physically and/or psychologically capable of performing a range of suitable alternative positions, some of which have been identified by vocational assessors and are considered suitable employment by some doctors.
The evidence
64 The plaintiff, who studied English at school in the Philippines gave evidence without the assistance of an interpreter. He explained he spoke English but read English more slowly and had some difficulty spelling (“a little bit”[26]). Whilst at times it was necessary to articulate questions more slowly and with greater clarity, I was satisfied the plaintiff’s spoken English was such that he demonstrated a good understanding of the questions asked and could adequately articulate his responses.
[26] TN 135
65 The documents tendered by the plaintiff from his Court Book were as follows:[27]
[27] Exhibit P1
Ø Having corrected the post code, his child’s name and substituted “Gallagher Bassett” for “IPAR”, two affidavits sworn on 31 March 2015 and 8 February 2016 respectively.
Ø An affidavit of his wife, Kristine-Lou Angelah Rebosura, also sworn on 8 February 2016.
Ø Multiple radiological reports.
Ø Multiple reports prepared by treating and medico-legal doctors and health professionals.
66 The plaintiff also tendered extracts from the clinical records kept by the Clinicare Clinic between 15 October 2010 and 8 September 2015 and a 2014 calendar used during re-examination of Dr Long.[28]
[28] Exhibits P2 and P3 respectively
67 The defendant tendered the following documents from its Court Book:[29]
[29] Exhibit D1
Ø Multiple reports prepared by medico-legal specialists.
Ø Extracts from the records of the Dorset Rehabilitation Centre.
Ø Return to Work, Vocational Assessment and Job Seeker documentation.
Ø Notification dated 17 October 2014 to plaintiff of cessation of weekly payments of compensation from 24 January 2015.
Ø Extracts from the plaintiff’s taxation returns for the years 2011 to 2015.
Ø Extracts from the clinical records kept by Coburg Family Medical Centre between 27 July 2010 and 8 July 2015.
Ø Extracts from the records kept by Clinicare between 18 April 2015 and 30 April 2015.
Ø Various applications for employment.
Ø The plaintiff’s Uber log.
68 The defendant also tendered surveillance film obtained on 17 January 2016 (approximately 28 minutes) and 14 February 2016 (approximately 16 minutes).[30]
[30] Exhibit D2
69 When called upon to do so, save for a period between 12 August 2015 and 29 September 2015 when the plaintiff was in the Philippines, the defendant conceded surveillance of the plaintiff on 9,16 and 17 June 2015 and 21 February 2016. I infer from the concession made that no activity inconsistent with the plaintiff’s claim was observed on those dates.
70 The plaintiff and Dr Long were cross-examined at length.
71 The plaintiff’s credit was challenged.
72 At times the plaintiff prevaricated and gave evidence that was vague and/or implausible. He was not a forthright witness. This was particularly evident from the description of the extent of his disability and income and other work-related activities and from information conveyed, at least in more recent times, to treating and examining doctors.
73 As mentioned, at hearing the plaintiff made some minor corrections to his two affidavits sworn on 31 March 2015 and 8 February 2016 respectively. The plaintiff also gave further evidence-in-chief to up-date his affidavits. Having sworn in March 2015 that he could no longer fish for Tuna in season, the plaintiff recounted a recent unsuccessful attempt to fish from a jetty or pier and gave details of current medications (Lyrica and Palexia).
74 Against objection from the defendant, I eventually allowed the plaintiff to give additional evidence-in-chief about what senior counsel described in opening as: “unpaid assistance to a friend of his delivering roast pork”.[31]
[31] Transcript (TN) 19
75 In his first affidavit the plaintiff deposes that, with the assistance of IPAR, he obtained waiting work at the café, ‘Craven Crepes’ commencing from 24 February 2015. He was paid between $16 and $17 per hour for a shift from 5pm to 11.30pm. In his second affidavit the plaintiff further deposes he had not been able to maintain this work, which involved a shift of between 4 and 5 hours per day for two to three days per week.
76 In further evidence-in-chief, the plaintiff told the Court that last year he received a call from a friend who operates a business selling a Filipino dish, spit roasted pork (‘Lechon’ pork). According to the plaintiff, his friend knew the plaintiff and his wife were struggling and sometimes gave them the pork head or leg to take home. When the plaintiff attended the business he said his friend sometimes asked him to deliver pork as a favour. This occurred “maybe” every weekend (he later added “maybe” for four or five weekends) in “maybe”, October, November or December 2015 (“I don’t really remember”[32]), Saturday and sometimes Sunday as well.
[32] TN 56
77 Under cross-examination the plaintiff agreed this work had not been mentioned in his affidavits. He, nonetheless, sought to distinguish this activity from work when he said: “It’s not really work, it’s just helping”.[33] When pressed to explain whether in the period mentioned he worked every weekend or four to five weekends, the plaintiff indicated he was not able to remember. He did, however, recall the work involved (sometimes) one or two hour’s work and he reiterated that deliveries were made at his friend’s request (“This one, can you drop this one to this address, it’s on the way home”[34]). The plaintiff denied the pork could weigh 20 kilograms, indicating that it was at times chopped, cut in half or comprised a small animal for roasting on a spit.
[33] TN 119
[34] TN 121
78 The plaintiff’s explanation for not telling doctors about this activity was untenable (“It’s – its not really that big though for me, because he just said if I can drop this one on the way home and then, “Can you do me a favour to deliver this one.” I never told the doctor, I don’t remember …….”[35]).
[35] TN 121
79 The evidence given was at best vague and, even after cross-examination, the period and the frequency with which the plaintiff undertook deliveries he said were remunerated in kind (cuts of pork and/or milk and/or nappies for the baby) remained unclear. I was left with the impression that the plaintiff was most reluctant to explain this arrangement in any detail. This is not to deny the plaintiff’s claim, that at the time his friend had been motivated to help the plaintiff, whom he believed was not working. However, the problem for the plaintiff in this regard was compounded by the fact that this was not the only activity in the nature of work not disclosed in the affidavit material of the plaintiff and his wife.
80 No doubt there are cases where evidence of motivation to work due to factors such as financial pressures and/or the desire to provide for the worker’s family explain continuing attempts to work in the face of likely daily exacerbations of injury-related pain.
81 This is not such a case. In my view, the evidence of factors consistent with a motivation to work, such as an initially positive return to work history and ongoing complaint of financial pressures, do not adequately explain the failure to disclose the deliveries of pork in the further affidavit material sworn in February 2016; the discrepancy between the plaintiff’s presentation in the film obtained in January and February 2016 and his presentation in Court and when attending doctors for examination; or, until cross-examination on the first day of hearing exposed this activity, the failure to disclose driving for Uber in 2014 and 2015.
82 Having obtained further instructions, prior to re-examination commencing senior counsel informed the Court the plaintiff was willing to give self-incriminating evidence about income earning activity driving for Uber whilst receiving weekly WorkCover payments. The plaintiff sought the protection of a certificate under section 128 of the Evidence Act 2008 for this and evidence previously given under cross-examination on this matter. I was informed the options available under section 128 and the effect of the provision had already been explained to the plaintiff. He had instructed that he was willing to give this evidence subject to obtaining the certificate.
83 In effect, once re-examination commenced the plaintiff raised his objection. I was satisfied there were reasonable grounds for the objection. The plaintiff was taken through the various parts of the provision and again indicated his willingness to give evidence. A certificate was duly granted for evidence given by the plaintiff in cross-examination and re-examination in respect to driving for Uber.
84 The defendant, nonetheless, relies on the admissions made and the failure to properly inform any of the doctors to challenge the plaintiff credit. The corroborative force of the observations made by the plaintiff’s wife is also lessened particularly as it records her observations of her husband’s physical presentation, mental state and experience of pain and particularly as it relates to her husband’s income earning activity additional to the work performed for Craven Crêpes in 2015.
85 In short, I could not be satisfied that the plaintiff’s uncorroborated evidence and, to a lesser extent, his wife’s evidence, provided reliable bases for determining various facts in issue.
86 My reasons for so finding are outlined in more detail in my discussion of the evidence in due course. However, at this juncture, it is appropriate to note that, of necessity, I have focused on any oral or documentary evidence that provides credible independent corroboration of the plaintiff’s complaints as they relate to injury to his cervical spine and/or his psyche and as they relate to the nature of and my evaluation of any consequences of neck injury and/or psychological injury.
87 I propose to explain my findings on the film and other credit issues in the course of the more detailed discussion of the evidence below.
The evidence - 2011 and 2012, diagnoses, treatment and employment
88 The attendances at the Clinic from 23 February 2011 onwards show that complaints and treatment were focussed on pain and symptoms affecting the plaintiff’s neck, with various reports of pain and symptoms in the area of the thoracic spine.
89 In February 2011, having presented with complaint of increasing pain and restriction in the range of neck and thoracic movements, Dr Long certified the plaintiff unfit for work. He arranged MRI investigation of the cervical and thoracic spine.
90 As mentioned, on 3 March 2011, the MRI study revealed pathology at the C5/6 level but none in the thoracic spine. On 5 March 2011, Dr Long certified the plaintiff fit for normal duties for two days per week, in the expectation that the plaintiff would continue physiotherapy and increase his hours after 4 weeks. At that stage, as recorded, the plaintiff’s medication regime involved Naprosyn SR and Panadol at night and, if needed, Panadeine during the day
91 On 31 March 2011 the plaintiff was progressing well with physiotherapy (“some neck pain and some pain killers on occasion”[36]) and managing 2 days’ work per week.
[36] Ibid
92 When he presented again on 28 April 2011 the plaintiff was working 4 days per week but reported ongoing neck tightness and occasional pain. Dr Long restricted work to 3 days per week for 2 weeks and thereafter the plaintiff was certified fit for normal duties. Apart from an attendance in the treatment of an unrelated condition, the plaintiff did not attend the clinic again until he presented with complaint of exacerbation of neck and upper thoracic back pain on 25 May 2012.
93 Subsequent entries made in the clinical records during 2012 establish the plaintiff continued to report problems coping with the physically demanding duties of a baker and required ongoing treatment of the cervical spine condition.
94 For instance, in a report dated 20 June 2012, among other things, treating physiotherapist, Mr Jans, advised the WorkCover claims manager that the plaintiff, who was then working reduced hours in normal duties, required ongoing physiotherapy for accident-related cervical and muscle sprain and disc protrusion/extrusion. At the time, the physiotherapist still contemplated a return to full-time hours
95 Dr Long also reported to the claims manager on the same date. Among other things, he advised the plaintiff had suffered cervical and thoracic muscle sprain and C5/6 protrusion/extrusion (“This injury is directly caused by Mr Resobura’s employment. This was initially caused by a fall at work and the subsequent injury was due to the repeated lifting and bending/twisting at his work as a baker”[37]). The doctor noted the plaintiff was fit for his normal duties on reduced hours. However, his patient required analgesia twice daily and physiotherapy twice weekly for another month, reducing to weekly sessions thereafter for a further two months.
[37] PCB 36
96 The clinical notes record problems maintaining weight restrictions where only two bakers were working and, by 13 August 2012, loss of funding for physiotherapy. The cessation of physiotherapy coincides with the plaintiff’s reports of increasing pain and a significant increase in his daily use of the pain relief medication, Panadeine Forte.
97 As mentioned, the plaintiff was referred by Dr Long to spinal and orthopaedic surgeon, Mr Quan. He assessed the plaintiff twice, on 25 September 2012 and on 15 February 2013. His report dated 16 April 2013 to the plaintiff’s solicitors addresses both consultations. Notably, the specialist records complaint of widespread pain starting in the plaintiff’s posterior and mid cervical spine with radiation up and down to his thoracic spine. On examination, the doctor found global restriction in the range of movement of the cervical spine because of complaint of pain. He found no focal spinal tenderness posteriorly or problems with the plaintiff’s upper limbs (“I could not fault him”).
98 Whilst these symptoms were not recorded by Mr Quan, on 29 October 2012, the plaintiff informed Dr Long he was experiencing some pins and needles in his arms and some weakness in both hands. This prompted the general practitioner to arrange repeat MRI imaging.
99 The point to be made at this juncture is that, by the conclusion of 2012, despite improvement in the underlying pathology revealed by further MRI investigation of the cervical and thoracic spine on 7 December 2012, Dr Long continued to record complaint of neck and upper back pain and symptoms of sensory disturbance affecting both upper limbs.
100 During re-examination Dr Long readily accepted the proposition that, following the accident, his patient had presented as motivated to keep working as a baker.[38] However, by late 2012 the doctor had, he said, concluded his patient required alternative, less physically demanding duties and might need retraining.
[38] TN 291
The evidence – 2013 to May 2014, treatment, assessment and lighter duties
101 The plaintiff did not return to his pre-injury duties, which had required lifting and carrying 25 kg bags of flour. Rather, he commenced light duties in the employer’s grocery department under a return to work plan supervised by IPAR and commencing from 21 January 2013. This work involved filling shelves with stock, some light cleaning duties, facing items on shelves and customer service. Restrictions were placed on lifting (up to 5kg) and on repeated bending/twisting/lifting and the employer was required to provide regular breaks. It was contemplated that the hours would increase from 36 hours to 38 hours per week from 4 February 2013.[39]
[39] DCB 83-84
102 On 25 January 2013 the plaintiff attended Dr Tilenius reporting that he had gone home from work two days earlier due to back, “right” (as recorded) shoulder and neck pain. The doctor prescribed Panadeine Forte and resumption of physiotherapy. When reviewed on 1 February 2013 the plaintiff, who had not return to work, reported some “left” (as recorded) shoulder and lower back pain and resumption of physiotherapy twice weekly. On the same date, Dr Tilenius wrote advising the plaintiff would benefit from physiotherapy, ideally twice weekly. He recommended review of the existing return to work plan.
103 Notably, the clinical notes and various reports submitted during 2013 raise concern about the cause/s of the plaintiff’s complaints of pain.
104 In April 2013 Mr Quan advised the plaintiff’s lawyers the plaintiff was suffering from chronic intractable axial neck pain without radicular or myelopathic features. The prognosis reported in April 2013 reflects the surgeon’s concern that non-organic factors were influencing the severity of the symptoms reported:[40]
These symptoms have persisted despite the passage of time. There is a discordance between the severity of his symptoms and the severity of the pathology apparent on clinical examination and repeated, sophisticated MRI scanning of his neck. His prognosis thus remains guarded, especially if there is an underlying depression and/or anxiety associated with the pain. Unfortunately the results of surgery in the form of instrumented spinal fusion is somewhat unpredictable and not generally recommended in this group of patients.
[40] PCB 56-57
105 Having rejected surgery as an option, Mr Quan apparently gave the plaintiff a request for a CT guided C5/6 epidural injection. This was administered on 16 May 2013.
106 In a letter dated 28 May 2013 Dr Long expressed a similar concern. Among other things, the doctor explained he could not identify the exact cause of the ongoing pain by saying:[41]
[41] PCB 41-42
This year his pain has improved but he still is in discomfort. He has returned to full-time work but in an alternative role. He remains on work restrictions of no lifting more than 5 kg and no repeated bending movements. Because of these work restrictions he is unable to return to work as a baker.
The exact cause of Mr Rebosura’s ongoing pain is not entirely clear. I feel that he initially sustained a sprain/strain type injury to his cervical and upper thoracic muscles whilst at work. He also has a C5/C6 disc protrusion which may or may not be related to his pain. Why his pain hasn’t resolved is somewhat of a mystery.…
… Given the length of time this has been going on for, I do not expect a significant improvement in Mr Rebosura’s functional level nor his pain levels. I feel that Mr Rebosura is likely to have some pain for the rest of his life. This may need to be addressed using psychological therapies.…
107 On 12 June 2013 the plaintiff informed Dr Long his wife was pregnant. He reported the epidural injection had given significant but temporary relief of pain and stiffness. These symptoms had, the plaintiff reported, steadily increased in the fortnight before the attendance. The plaintiff also reported experiencing some right sided cervical pain.
108 A flare-up in pain in August/September 2013 appears to have prompted referral to rheumatologist, Dr Nikpour. However, prior to Dr Nikpour’s examination, the plaintiff was examined by two specialists appointed by the claims manager, general surgeon, Mr Troy on 3 September 2013 and, for the purpose of providing an impairment assessment, rheumatologist, Dr Karna on 12 September 2013.
109 Mr Troy previously examined the plaintiff in 2012. Based on his report, in September 2013, Mr Troy understood from the plaintiff that the light duties he was performing in the grocery section of the employer’s business were not aggravating the plaintiff’s condition. Mr Troy attributed the C5/6 disc lesion to the accident and ruled out any return to work as a baker or any sort of labouring work in the foreseeable future. Mr Troy, nonetheless, considered the plaintiff fit to continue the light, albeit restricted, duties the plaintiff was then performing indefinitely.
110 It appears that during formal examination Dr Karna noted hesitation by the plaintiff in turning his neck to the left or in making left lateral movements. He reported that: “rotation and flexion were substantially reduced with some cervical muscle spasm on the left side and in the left cervicotrapezius region with some pain over the mid cervical facet joints on direct palpitation”.[42] Examination also revealed full shoulder movements with normal shoulder movements other than at the extremes of abduction when the plaintiff reported pain in the cervicotrapezius region rather than in the shoulder.
[42] DCB 36
111 Dr Karna concluded the accident likely caused chronic soft tissue injuries to the cervical spine but not the left shoulder, the latter because the pain described by the plaintiff was located in the left cervicotrapezius region not the shoulder (“I accept the notion that he may well have sustained substantial axial soft tissue injuries, but it has been his left side of the neck which has been the ongoing significant issue and the symmetric movements in the left side of the neck, the local mid cervical facet joint tenderness, the response to the local injection that he had, all point towards him having most likely chronic soft tissue injury to the left side of the neck or perhaps left-sided facetogenic pain in the mid cervical region”[43]).
[43] DCB 36-37
112 Dr Nikpour’s examination on 18 November 2013 failed to reveal evidence of systemic issues. Dr Nikpour reported to Dr Long in the following terms:[44]
[44] PCB 58-60
Ø The plaintiff presented with a stiff painful neck in all directions of movement, with some lateral flexion, rotation and extension preserved.
Ø Mild tenderness accompanying abduction of the left shoulder was likely due to referred pain from the neck.
Ø She had observed: “a lot of tightness and tenderness in the neck, upper paraspinal and shoulder girdle muscles”.[45]
Ø Diagnostically, her overall impression was of chronic neck pain due to muscle spasm.
Ø She thought the plaintiff might benefit from review by a pain management specialist, alternatively referral to the Barbara Walker Pain Management Clinic, although Dr Nikpour predicted assessment for the latter would involve a long wait.
[45] PCB 59
113 In summary, specialist examinations during the second half of 2013 confirmed likely injury affecting the cervical spine with some clinical evidence of muscle spasm affecting this area.
114 It appears that during the latter part of 2013 and into early 2014 there were ongoing issues about funding of physiotherapy treatment. Dr Long referred the plaintiff to pain management specialist, Dr Muir in December 2013.
The evidence – 2014, treatment, assessment and income earning activity
115 In the meantime, the plaintiff continued to attend the Clinic with reports of work-related exacerbation of neck pain and problems managing any return to work. For instance, on 29 January 2014 he presented complaining of ongoing severe neck pain despite undergoing self-funded physiotherapy. The plaintiff reported only modest relief from the medications, Tramadol and Mersyndol Forte. Dr Long commenced a trial of the stronger pain relief medication, Lyrica.
116 Various entries made in the clinical notes by Dr Long between January 2014 and the plaintiff’s attendance on Dr Muir on 10 April 2014 confirm that the general practitioner remained at a loss to explain the cause of significant pain reported by the plaintiff.[46] Notably the repeat MRI scan on 31 March 2014 reported no change when compared to the December 2012 study.
[46] See for example, notes made for attendances on 15 January 2014, 26 February 2014 and 12 March 2014 Exhibit P2.
117 Dr Long certified the plaintiff unfit for work on 2 April 2014. It appears that by then the plaintiff had already received a letter from the employer notifying him that they did not have any suitable role for him.
118 Vocational assessment by IPAR on 9 April 2014 identified a number of employment options considered suitable for this plaintiff: call centre operator, telemarketer, sales assistant, car salesperson and parking inspector.[47] Among other things, the report records the plaintiff was motivated to participate in a New Employer Services job seeking program and had expressed interest in trying each of the positions mentioned.
[47]DCB 95-109
119 Under cross-examination the plaintiff recalled the assessment by IPAR. Save for recalling having expressed interest in the parking inspector position (“I say I will try if I – if the doctor says it all right for me to do”[48]), the plaintiff demonstrated a marked reluctance to concede that each of the various positions nominated in the April 2014 report had been discussed with him. Whilst the report was not clear as to the extent to which each position was discussed, common sense suggests that some discussion occurred prior to the plaintiff reportedly expressing interest.
[48]TN 106
120 Examination by Dr Muir on 10 April 2014 revealed reduction in the range of movement of the plaintiff’s neck but no neurological signs. Dr Muir diagnosed non-specific neck pain with a significant discogenic component to this. He too found secondary muscle spasm. Dr Muir referred the plaintiff to the Dorset Rehabilitation Centre pain management program.
121 The plaintiff was again certified unfit for work on 13 May 2014. On 29 May 2014, having returned from a vacation in the Philippines, the plaintiff reported the warmer climate had improved his condition but since his return there had been: “substantial aggravation”.[49] In late May 2014 the plaintiff’s employment with the employer was terminated.
[49] PCB 62B and Exhibit P2
122 At this juncture, it is convenient to discuss the evidence of the plaintiff’s assessed capacity for alternative employment subsequent to termination of his employment and his admitted income earning activity driving for Uber during 2014. The plaintiff submits this evidence, as it relates to his credit, should be assessed in context and with due regard to the financial pressures experienced by him at the time.
123 The medical evidence obtained between mid-2014 and December 2014 provides some of the context for assessing the plaintiff’s work capacity and activities during this period.
124 Dr Muir reviewed the plaintiff on 12 June 2014. At the time he clearly considered participation in the pain management program a necessary prerequisite to the plaintiff achieving self-management of the neck condition.
125 Dr Long’s clinical notes, among other things, record that on 25 June 2014, he considered his patient fit for suitable alternative duties. In a General Practitioner Standard Report submitted to the claims manager on the same date the doctor relevantly noted the following matters:[50]
Ø Subject to completion of a pain management course he expected his patient to be fit to perform full-time sedentary duties (with low physical demands) with another employer within 3 months.
Ø He did not consider the call centre operator and telemarketing positions suitable employment given the amount of time these may require the plaintiff to work in the same position and use a computer screen. The other positions nominated by IPAR in the April 2014 report were, the doctor said, suitable.
[50] DCB 66-67
126 Bearing in mind these background matters, the later entry made in the clinical notes on 23 July 2014 recording the plaintiff’s statements that he could do very light duties, likely records the plaintiff’s view, not the doctor’s.
127 Two of the defendant’s specialists examined the plaintiff during August 2014. Dr Kornan who, as mentioned, considered the plaintiff psychologically fit to make a graduated return to full-time suitable alternative work and Mr Troy, who had twice previously assessed the plaintiff’s neck condition.
128 As to the plaintiff’s mental state, on examination on 6 August 2014, Dr Kornan relevantly observed:[51]
(The plaintiff) spoke in a voice which indicated some raised tension levels, but he did not appear to be depressed. He seemed to be having some adjustment problems, and his voiced showed some anxiety. There did appear to be some problems with his memory, and concentration. There was no disorder of perception. He indicated that his wife thought he now got angry easily, and at times, there had been some palpitations. He appeared to be worried about his financial situation, and he was concerned about his pain. His judgement was influenced by his mood situation. There was ongoing subjective distress, as well as anhedonia, and raised tension levels. He appeared to be brooding, and introspective, about his neck pain. There were no psychotic features. There were no delusions or hallucinations. He was able to make appropriate eye contact.
[51] DCB 40
129 Notably, on this occasion, Dr Kornan opined the plaintiff did not have an incapacity for work but an ongoing disability. He was, Dr Kornan said, psychologically capable of driving a car. Moreover, having considered the range of alternative positions to which the IPAR April 2014 report referred, Dr Kornan concluded that, from a psychiatric perspective, each of the positions identified in the report were suitable job options for the plaintiff.
130 On 8 August 2014, among other things, Mr Troy understood from the plaintiff that he owned a Range Rover vehicle with security cameras and had no problems driving. Mr Troy found the plaintiff fit for the modified duties he had been performing in April 2014 and for the range of alternative positions to which the April 2014 IPAR report referred, once cleared by his GP.
131 As later events have shown, at the time both the psychiatrist and the orthopaedic surgeon were probably correct in their understanding that the plaintiff was mentally and physically fit to drive his vehicle.
132 The clinical notes made thereafter, suggest that factors such as the delay in approving the plaintiff’s participation in the pain management program recommended by Dr Muir and the further attendance on Mr Troy were likely sources of psychological distress. For instance, based on the plaintiff’s reports and presentation on 20 August 2014, Dr Long recorded his patient’s anxiety and stress levels had reached the extremely severe range. Notably, during re-examination the doctor indicated that he thought his patient’s frustration due to the delay and lack of employment was genuine.
133 In summary then, by August 2014 the treating doctor, who anticipated a return to full-time sedentary duties after completion of a pain management course was concerned that factors other than the organic condition were exacerbating the plaintiff’s stress levels whereas the defendant’s medico-legal specialists considered the plaintiff physically and psychologically fit to make a return to suitable alternative duties.
134 The record of the next attendance on 17 September 2014 continues in the same vein but also indicates the emergence of problems with the left upper limb, likely due to left shoulder pathology. This was the attendance at which the plaintiff presented complaining of severe pain, weakness and significant problems affecting the functioning of his left upper limb.
135 The results of the ultrasound confirmed pathology in the left shoulder but, as we now know, WorkCover disputed compensable injury to the shoulder and declined to fund the cortisone injection which, in his first affidavit, the plaintiff deposes was self-funded in December 2014.
136 In the meantime, delay in approval of the pain management program continued. The entries in the clinical notes for attendances on 15 October and 12 November 2014 emphasise the plaintiff’s despondent presentation. In October the plaintiff complained he had not been able to find work (as it later turned he mislead Dr Long in this regard), especially due to his physical limitations and in November he reported more severe pain in the preceding four days, problems driving his car and pain even sitting at a desk writing.
137 By letter dated 17 October 2014, the plaintiff received formal notification that his entitlement to weekly payments of compensation had been reviewed. The April 2014 IPAR report, the medical reports of Dr Kornan and Mr Troy and a medical certificate issued by Dr Long on 15 October 2014 were cited in support of the determination to cease weekly payments from 24 January 2015.
138 The plaintiff’s wife is currently employed as a registration officer with the Australian Health Practitioners Registration Agency (AHPRA). In February 2016 she deposed she worked between 8am and 4pm. As I understood the evidence, during 2014 the plaintiff’s wife was working with AHPRA and after time off following the birth of their son in March 2015, she returned to her full-time employment from October 2015.
139 On 3 December 2014 the plaintiff applied for a position as an Administrative Customer Service Officer with AHPRA.[52] The plaintiff said he understood this involved obtaining identification from people coming into the lobby area. Had he been offered this position the plaintiff agreed he believed he could do this job and would have tried it. The plaintiff was, however, reluctant to acknowledge the possibility that he might have continued in this job had his application been successful. I did not find plausible the plaintiff’s evidence that he had no idea what the earnings were for this and two positions offered by other employers for which he also applied in February and March 2015.
[52] DCB 281
140 On 10 December 2014 Dr Long was advised that the injection had improved the range of movement in the left shoulder and the plaintiff was looking for work. The plaintiff further advised that he had missed the first appointment for the pain management program on 9 December 2014 because he had not been sleeping.
141 As earlier mentioned, the pain management program commenced on 16 December 2014.
142 On 18 December 2014 the plaintiff was examined by his own medico-legal specialist in occupational medicine, Dr Ong.[53] Among other things, Dr Ong understood the following matters:
[53] PCB 63 to 72
Ø The plaintiff had been seeking alternative employment without success. He wanted to return to work but had been prevented from doing so due to his symptoms.
Ø In the future the plaintiff envisaged returning to either part-time work for approximately 2 to 3 days per week at 4 to 6 hours per day in a lighter job or slightly increased hours in a sedentary or office role.
Ø The plaintiff’s complaints included neck, upper back and left shoulder pain, intermittent radicular pain down the left upper arm and depressive and anxiety issues.
Ø Sitting, standing and driving tolerances were reported as 20 minutes, 5 to 10 minutes and 20 to 25 minutes respectively.
143 Examination revealed a slow and guarded gait, a stiff and limited range of neck movement and moderate tenderness at the C3 to C7 and T3 to T6 levels. The range of movement of the left shoulder was slightly limited with mild tenderness in the lateral deltoid and supraspinatus insertion area.
144 The accident-related diagnoses reported by Dr Ong were:[54]
.. chronic neck pain syndrome from focal cervical C5/6 disc prolapse and neuropathic radicular pain to left arm, chronic upper back pain from myofascial injury and chronic left shoulder pain from supraspinatus tendinopathy with partial tear and bursitis. The patient also suffers from secondary depression/anxiety, adjustment disorder and post-traumatic stress disorder traits.
[54] PCB 70
145 Notably, apart from the plaintiff’s complaint of intermittent pain down the left arm, based on more recent radiological and specialist medical investigations, I could not be satisfied that the symptoms described by the plaintiff on this occasion supported the conclusion that the plaintiff was suffering from neuropathic radicular pain in the left arm.
146 It was evident from this report that Dr Ong considered both the neck and shoulder conditions were contributing to incapacity for employment. He said the plaintiff may be fit for alternative duties where lifting (no more than 5kg), repetitive or heavy manual duties involving the neck, upper back, left shoulder or arm, overhead work and the operation of machinery was restricted or fit for sedentary/office based duties. However, I could not be satisfied from reading his report that Dr Ong adequately explained why incapacity resulting from the neck injury restricted the maximum hours of work to the hours mentioned by the plaintiff, namely 4 to 6 hours per day, 2 to 3 days per week.
147 I now turn to consider the evidence of the plaintiff’s known work-related activities during the latter part of 2014.
148 The evidence given during cross-examination establishes that on a number of occasions since 27 July 2010, the plaintiff had visited his wife’s doctor, Dr Chaudary in the treatment of unrelated conditions. This doctor practices from the Coburg Family Medical Centre.
149 An entry in the clinical notes for 9 December 2014 records an attendance: “FOR TAXI DRIVER LICENCE”. The entry also records a history of neck pain, a past history of a C5/C6 disc bulge, the results of the doctor’s examination (“NECK MOVEMENTS OK”), complaint of worsening pain at night, medication comprising nightly doses of Lyrica and Mobic and the fact that the plaintiff was attending pain management specialist, Dr Muir.
150 Under cross-examination the plaintiff was taken to this entry. Regardless of whether, as claimed, the plaintiff saw this doctor rather than his usual GP because Dr Chaudary bulk billed, the entry is noteworthy. Firstly, because the plaintiff attended his usual doctor, Dr Long on 10 December 2014, the day after consulting Dr Chaudary; secondly, because of the reason recorded for the attendance; and, lastly, because the plaintiff told Dr Long he missed his first appointment for the pain management program on 9 December 2014 due to problems sleeping.
151 The attendance and the reason for it were conceded by the plaintiff, although he denied the application made was to drive taxis. Rather, the plaintiff agreed an application was pending but repeatedly said this was to drive his own car for Uber. A document completed by Dr Chaudary was, the plaintiff acknowledged, submitted to the Taxi Commission (as the plaintiff called it). I understood this to refer to the Victorian regulator, the Taxi Services Commission.
152 Further responses given by the plaintiff were to the effect that, at the time, he realised he could not drive for Uber because his use of stronger medications was increasing and because of the difficulties he was experiencing when driving. As a result, according to the plaintiff, he had not taken the final examination or pursued the application to the Taxi Services Commission (“It’s not for taxi. Supposed to be for Uber, but I found out it’s more difficult for me, for my driving, with the medicines that’s why – because when I see Dr Chaudary I am in lesser – my medicine that time coming more stronger and stronger, that’s the time, I said I didn’t push through with it. I never really knew. I never drive” and “I thought I cannot do it because I get difficulty. My last car was hit twice because of my difficulty seeing that’s why my wife agreed to have a bigger car. Easy for me to get in, bigger, side mirrors, more clearer, it got cameras so I don’t have to turn my head back.”[55]).
[55] TN 110 and 114
153 As the plaintiff subsequently conceded, the bigger car, a Land Rover Evoque, was registered in the plaintiff’s name on 24 August 2013, more than a year before his attendance on Dr Chaudary and the application to the Taxi Services Commission. Moreover, further evidence given by the plaintiff during re-examination indicated other reasons had prompted the purchase of the new vehicle in 2013. According to the plaintiff, he and his wife purchased this vehicle because their 2003/2004 Audi 84 had broken down when the plaintiff needed to drive his then pregnant wife to hospital. They had to call friends. Unfortunately they lost this baby.
154 At hearing, both the plaintiff and Dr Long agreed, the plaintiff had not mentioned driving his own vehicle for Uber (or it seems any application to the Taxi Services Commission) to this treating doctor. Indeed, the plaintiff agreed he had not mentioned these matters to any doctor other than Dr Chaudary.
155 Before cross-examination concluded, the plaintiff was specifically questioned about any work done driving for Uber. The answers given at the time were misleading. In effect, the plaintiff told the Court driving for Uber had been restricted, in his words, to: “Just a couple of tryouts..”.[56] The money received was paid into the account of the friend who had suggested he take those trips. The plaintiff prevaricated when pressed to recall the name of this friend or the arrangements for payment. At the time, I was left with significant reservations about the accuracy of the claim that the plaintiff could no longer recall this friend’s name or the details of the arrangement for payment and about the suggestion that the plaintiff had only driven on the couple of occasions alleged.
[56] TN 116
156 The plaintiff submits the evidence regarding the application to the Taxi Services Commission was confusing and should not be relied on to damage his credit. In my view, if there was any confusion, it was due to a lack of candour in both the affidavit material and oral evidence and a likely attempt by the plaintiff to minimise the extent of his physical and mental capacity for employment-related activity at the time.
157 In all, I found the plaintiff’s evidence on this issue unsatisfactory. Firstly, I was not satisfied that the failure to mention the application for a Taxi driver’s licence or even a short trial of work for Uber in the further affidavit or, until cross-examination required an explanation of the entry in the medical record, was because, as claimed, the plaintiff had not pursued the application to the Taxi Services Commission. Secondly, even with the benefit of the section 128 certificate, re-examination failed to directly address this issue. As a result, no plausible alternative explanation was offered for the application to the Taxi Service Commissioner. I could not be satisfied that the plaintiff had not also applied for a Taxi driver’s licence, irrespective of whether or not he pursued this application at a later date.
158 Following the granting of the section 128 certificate, during re-examination the plaintiff informed the Court that he drove for Uber between September and 24 November 2014. Save for a couple of occasions in early 2015, he had, the plaintiff said, ceased driving for Uber from November 2014 because he could not cope with the driving.
159 As mentioned, between September and early December 2014 the plaintiff required treatment of symptoms affecting his left upper limb likely associated with the pathology revealed in the plaintiff’s left shoulder in September 2014. Logically, the left shoulder condition, which required a cortisone injection, administered on a date prior to 10 December 2014 was a likely cause of the problems with driving about which the plaintiff complained at that time. That said, I could not be satisfied from the evidence as a whole that the plaintiff’s neck condition or any psychological disorder also precluded driving for Uber or prevented the plaintiff from seeking alternative suitable employment in the latter part of 2014.
160 Furthermore, I could not reconcile the claim that the plaintiff ceased driving for Uber in November 2014 due to exacerbation of symptoms of the neck condition (“It’s painful already, and then I found out that’s really stiffing my neck more (sic)”[57]) with the making of an application for a taxi driver’s licence within a few weeks of the last entry in the logbook.
[57] TN 182
161 In short, I infer from the reason for the attendance on Dr Chaudary in December 2014 and the application made that having by then treated the unrelated shoulder condition, the plaintiff still considered himself mentally and physically capable of returning to work as a driver in the future. This is not to deny, however, the import of Dr Long’s evidence at hearing that any job involving driving is probably unsuitable where a worker regularly takes sedating analgesics in the management of neck pain. Based on this evidence, the plaintiff’s physical capacity to drive for Uber or in any other alternative employment would depend on the likely effect of any medication/s required to manage pain and symptoms associated with the neck injury.
162 Despite having the benefit of the section 128 certificate, I formed the view that the plaintiff still sought to minimise the extent to which he drove for Uber by suggesting his fare taking activity in 2014/2015 was limited to the times he dropped off and collected his then pregnant wife from work each day.
163 During re-examination the plaintiff produced a handwritten document purporting to be his logbook for driving for Uber between September 2014 and 24 November 2014.[58] No similar document was produced for the further trips the plaintiff recalled during 2015, which he said were taken to earn extra money because they were struggling financially at the time.
[58] DCB 282-301
164 Based on the unusual circumstances in which the logbook came to light, I granted the defendant’s application to further cross-examine the plaintiff on this document. This cross-examination relevantly revealed the following matters:
Ø The multiple entries made on dates commencing from 15 September 2014 indicated the number of trips and the amount paid.
Ø Based on the record alone the plaintiff drove for Uber on 15, 16, 17, 19, 23, 24, 25, 29 and 30 September 2014, on 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 17, 19, 24, 25, 28, 29 and 30 October 2014 and on 3, 5, 6, 7,8, 10, 20 and 24 November 2014.
Ø The logbook was not a complete record because the plaintiff agreed there might be some trips before 15 September 2014.
Ø The number of trips and the amounts recorded on each date suggest that the plaintiff made more than a few trips in association with dropping off and collecting his wife from work and that, from time to time, he also drove on weekends.
Ø The plaintiff’s initial response when asked if he had another logbook was, at best, equivocal (“I don’t know. No”[59]). I was left with the strong impression that the plaintiff had undertaken more trips for Uber in 2015.
[59] TN 193
165 Cross-examination of Dr Long confirmed that when he examined the plaintiff on 17 and 29 September 2014, on 15 October 2014, on 12 November 2014 and on 10 December 2014 he had been ignorant of the plaintiff’s driving activity and the application for a taxi licence. He said he had been providing limited certificates on the understanding that the plaintiff had not been working at all. Notably, Dr Long expressed concern about the reliability of the plaintiff’s self-report of physical and psychological symptoms and restrictions, where, as in this case, in addition to the MRI findings at the C5/6 level, he had relied on these reports.
166 In short, Dr Long entertained the possibility that the plaintiff’s capacity for work at the time was greater than he at first thought. Notably, discussion and analysis of the entries in the clinical notes made at the time did not alter this view or the doctor’s belief that during this period his patient was probably genuinely frustrated by the delay in obtaining approval of funding for the pain management program and by the failure of WorkCover to fund the cortisone injection for the left shoulder.
The evidence – 2015, assessment, treatment and employment
167 With support from IPAR and whilst still involved in the pain management program, on 24 February 2015 the plaintiff commenced part-time waiting/barista work with Craven Crêpes on 24 February 2015.
168 Certificates of capacity were not tendered by the plaintiff. However, the amended return to work document tendered by the defendant indicates that, at the time, the plaintiff was certified fit for very light desk or office based duties (starting with 20 hours per week and increasing from there), with restrictions on lifting (no more than 5kgs), on repeat lifting, bending or twisting and on working with his arms above shoulder height and on the proviso that the plaintiff be able to alternate sitting and standing.[60]
[60] DCB 136
169 The plaintiff deposes that he performed between 4 and 5 hour’s work for a maximum of 2 to 3 days per week and at times he was sent home because of increased pain. In effect, the plaintiff said he had not coped with the position at Craven Crepes. The plaintiff had, he deposes, missed out on this opportunity because his manager was uncertain about his future work capacity.
170 Dr Long’s evidence and clinical notes indicate that during the relevant period he encouraged his patient to persevere with the work despite complaint of worsening pain. Importantly, IPAR, the doctor and those managing the pain management program were not aware that the plaintiff was also undertaking shifts driving for Uber during the period the plaintiff said he could not cope with his duties with Craven Crepes.
171 I have accepted that the plaintiff appeared motivated to seek alternative employment and that any financial pressures experienced by the plaintiff and his wife at the time could have been factors in the plaintiff’s decision to also drive for Uber. However, in view of the credit issues, I could not be satisfied that the plaintiff’s physical/psychological capacity for employment was such that in 2015 he was unfit to perform suitable alternative employment.
172 As mentioned, in February and March 2015 the plaintiff also unsuccessfully applied for other positions.[61] One was as a trainee dealer at Crown Casino. Another was working as a cash processor for Prosser Security. Again, I did not find plausible the plaintiff’s professed ignorance of the amounts payable had he been successful in his applications for these light work positions. He said his condition had worsened and resisted any suggestion that he might have the capacity to perform these jobs.
[61] DCB 279-280
173 The plaintiff denied stopping work with Craven Crepes because he had commenced this proceeding by March 2015.
174 Aside from delivering pork for his friend’s business during the latter part of 2015, the plaintiff said he did not obtain alternative employment during 2015 or 2016. As mentioned his son was born on 18 March 2015. In March 2015 the plaintiff deposes his life at home had changed dramatically. The plaintiff said his wife performed the majority of the housework and, from time to time, he sought assistance from an unnamed friend with home improvements and with shopping at the markets and buying groceries.
175 It appears that his wife’s parents visited Australia for a 3 month period until July 2015 and, with sponsorship from their families, the plaintiff and his wife made another journey to the Philippines during August and September 2015.
176 Additional to assessment by his treating doctors, the plaintiff was examined by four specialists either before or after his third journey to the Philippines in as many years. None of these doctors were aware of the plaintiff’s work-related activities driving for Uber in 2014 or 2015.
177 The plaintiff was assessed by neurosurgeon, Mr Brownbill, at the request of his solicitor’s on 10 June 2015 in respect to the neck injury only. The salient features of his report are summarised in the following points:[62]
[62] PCB 81-86
Ø apart from noting the plaintiff’s depressed demeanour (which Mr Brownbill thought: “may be accentuating and perpetuating his own perception of ongoing pain”[63]), clinically Mr Brownbill found restricted cervical spine movement particularly on direction to the left but no objective evidence of neurological abnormalities affecting the upper or lower limbs and no signs of radiculopathy or myelopathy.
[63] PCB 85
Ø Mr Brownbill diagnosed accident-related soft tissue injury to the structures around the cervical spine with C5/6 intervertebral disc derangement. He attributed the complaint of upper back pain to referred pain from the damaged disc.
Ø Whilst Mr Brownbill accepted the neck injury was responsible for a component of organic pain, he was not able to identify the precise basis for the complaint of unremitting neck pain. The recommendation made for ongoing pain management care where this provided access to all relevant specialties reflects this specialist’s concern that non-organic factors were also affecting the plaintiff’s presentation.
Ø Constant ongoing neck pain.
Ø Pain that was so severe at times he took 12 Panadeine Forte tablets in a day. For the reasons already articulated at length, I could not be satisfied that currently the plaintiff is in a position to take this medication in the quantities alleged or at all.
Ø At times being unable to swallow due to neck pain.
Ø Left shoulder girdle pain and left upper limb pain.
Ø Difficulty in doing any household chores.
Ø A walking tolerance for only short distances. When taken to the report under cross-examination the plaintiff’s initial and implausible response was to indicate that this statement had been limited to: “bad days”.[84] Notably, the surveillance film obtained in January 2016 showed the plaintiff walking freely and extensively around Costco while shopping with his wife and son.
[84] TN 73
250 I have already mentioned Mr Dooley’s diagnosis of soft tissue injury against a background of naturally occurring degenerative disease at the C5/6 level. Whilst the defendant seeks to rely on this diagnosis, it nevertheless concedes, as it must, that there is no evidence of a pre-existing or symptomatic condition prior to the accident.
251 The accuracy of Mr Dooley’s further diagnosis in which he also attributes the pathology identified in the left shoulder in 2014 to degenerative changes he said were not an uncommon finding in patients in their thirties, is not an issue I need determine in this proceeding.
252 As to the injury to the cervical spine, in Mr Dooley’s opinion the majority of the plaintiff’s current presentation was likely non-organic. He has, however, accepted, as other doctors have, that the plaintiff is not fit to perform his pre-injury duties as a baker and is likely restricted to light work for the foreseeable future. In Mr Dooley’s opinion, the latter includes shelf filling, working as a dealer at Crown Casino, café work and the positions described in the IPAR report dated 9 April 2014.
253 This brings me to the CoWork report. Ms Bryant obtained a detailed history specifically relating to employment and skills. As part of her assessment, among other things, Ms Bryant took into account the plaintiff’s further Affidavit sworn on 8 February 2016, the results of the latest MRI study, the most recent Certificate of Capacity of Dr Long dated 4 January 2016, the first report of Dr Yong, the report submitted by Mr Brownbill in June 2015 and the April 2014 report from IPAR.
254 Notably, the Certificate records a left cervical neck and thoracic muscle sprain and C5/6 disc protrusion/extrusion, chronic pain syndrome and depression caused by the accident and certifies the plaintiff unfit for any duties from 6 January to 3 February 2016. It appears that the plaintiff, who Ms Bryant said was unsure of what employment he could obtain given his physical restrictions, limited his capacity for work to only 2 to 3 hours per day, 2 to 3 days per week.
255 Having regard to my analysis of the medical evidence on both sides, the plaintiff’s likely activities in caring for his young child, his employment and skills history and his likely better than reported functional tolerances, I was satisfied that the assumptions informing Ms Bryant vocational assessment were correct. She proceeded on the basis that, with appropriate support to prepare him for a return to employment, the plaintiff is physically and psychologically capable of performing suitable light/sedentary employment and capable of undertaking further training. As to further training, the plaintiff evidently responded positively to the suggestion that he complete a Certificate IV in Small Business management to increase his employability as a supervisor. Ms Bryant also envisages the use of computerised English language tutorials to improve the plaintiff’s heavily accented spoken English in preparation for customer service roles.
256 Ms Bryant identified and explained the requirements of a number of occupations she said represented suitable employment: Travel Consultant, Bank Teller, Cashier-Travelex, Laboratory Technician and Import/Export Clerk. Each position offers full-time or part-time duties. The gross weekly rates paid, for example for 24 hours per week vary between $559 per week or 23.29 per hour as a cashier and at the higher end, between $841 per week or $35.03 per hour as a Laboratory technician. Notably, subject to various training requirements, each position could result in the plaintiff earning 60% or more of the without injury earnings figure of $18,158 gross per annum irrespective of whether he works a minimum of 20 or 24 hours per week.
257 A similar result would be achieved were the plaintiff to undertake employment in the positions identified in the earlier Vocational assessment prepared by IPAR in April 2014. These are the positions considered in the medical reports to which I have already referred. When the IPAR report was submitted in April 2014, save for the car salesperson role, all of the positions were advertising both part-time and full-time roles. Based on average full-time weekly rates of between $763 gross as a Sales Assistant and $864 gross as a Parking Inspector, the plaintiff would still exceed the statutory threshold.
Dr Long’s oral evidence - his patient’s capacity for work
258 I have already mentioned Dr Long’s evidence to the effect that in light of the film and driving for Uber evidence, he now questions the reliability of his patient’s complaints concerning his physical and psychological symptoms. Through his responses in cross-examination, the doctor indicated he now entertained the following possibilities:
Ø the plaintiff’s capacity for work was greater than he previously believed.
Ø The plaintiff may have little or no problem with his neck.
Ø Subject to the qualification that he had not seen the plaintiff move his left arm through a normal range of motion, he may have little or no problem with his left or right upper limbs.
Ø Notwithstanding his reservations in June 2014 about the suitability of these positions, the plaintiff may now have the capacity to work as a call centre operator or telemarketer.
Ø He was now even more confident about the plaintiff’s ability to work as a sales assistant or car salesman (but not a parking inspector because of the possibility of (as transcribed) some “lifting”.[85]
Ø With the same concerns in mind, of the positions identified in the CoWork report, the doctor identified employment as a travel consultant, bank teller, cashier and import/export clerk as suitable employment. The position as a laboratory technician was rejected due the doctor’s concern that this might require a lot of repetitive work.
[85] TN 240
259 Dr Long did, however, make the salient point that his assessment of the plaintiff’s capacity to perform the duties required for the positions mentioned is necessarily dependant on the reliability of the representations made about the impact of a combination of three factors: neck pain, left shoulder pain and depression.
260 In summary, if based only on the plaintiff’s presentation to him, Dr Long considers his patient has no current work capacity. However, the doctor is less confident in this view, due to his reservations about the reliability of the plaintiff’s presentation as it relates to the neck and left shoulder conditions and his mental health. Based on his current understanding of the plaintiff’s circumstances, subject to a gradual reintroduction to work, Dr Long appeared to accept the proposition that his earlier assessment of the plaintiff’s capacity in May 2015 could now reflect the plaintiff’s potential capacity. This was the report in which, Dr Long advised that in the long-term with a gradual introduction back into the workforce working a maximum of four hours in any one day, he expected the plaintiff to exercise some work capacity in a nonphysical job with no lifting/twisting or bending.
261 In other words, the doctor contemplated work in suitable alternative employment in the future for at least (or potentially more than) 20 hours per week (“I think that’s not unreasonable in view of the information.”[86]). Notably, in this regard Dr Long thought the time-frame of approximately nine months suggested by Dr Yong for a graduated return to work a reasonable one.
[86] TN 245
262 Re-examination of Dr Long was extensive. Additional to the various aspects of this evidence already mentioned, the following further matters are noteworthy:
Ø Dr Long was understandably concerned about the accuracy of the WorkCover certificates written when the plaintiff was driving for Uber and by the fact that, at the time, the plaintiff was managing some level of workload.
Ø Even though the accident involved a significant fall, which likely caused neck injury, Dr Long could not rule out the possibility that the pathology disclosed by the initial MRI studies pre-existed the neck injury.
263 As earlier mentioned, Dr Long was not prepared to accept that Associate Professor Paoletti, who only examined the plaintiff once, was better placed than him to assess the plaintiff’s psychological state. Dr Long, nonetheless, agreed that he did not take issue with Associate Professor Paoletti’s opinion that the plaintiff was psychiatrically unfit for work.
264 Dr Long evidently accepts (as other doctors have) that there is some organic component to the plaintiff’s neck pain. He also sought to clarify his earlier evidence under cross-examination that the plaintiff’s capacity to work was in the order of 20 hours per week, by explaining that the plaintiff’s pain levels and mental state, both of which could fluctuate from one day to the next, could affect his capacity to work the hours mentioned.
265 In my view, the responses given during re-examination by way of clarification need to be understood in context. Firstly, the thrust of the doctor’s evidence was as earlier summarised. I did not understand the doctor to resile from his concern about the reliability of the plaintiff’s complaints as expressed by the doctor in cross-examination.
266 Secondly, on 17 December 2015, Associate Professor Paoletti foresaw improvement in the plaintiff’s mental state and a capacity to return to work with better pain control. In my view the indication by Dr Long that he did not take issue with the psychiatrist’s opinion that the plaintiff was psychologically unfit for work is consistent with the earlier opinion expressed by the general practitioner. That is to say, had the reliability of the complaints about the neck pain, shoulder pain and depression not been an issue and these complaints are accepted as genuine, the plaintiff is probably physically and psychologically unfit for work.
267 However, based on my analysis so far of the medical and other evidence, the plaintiff has not established that pain levels resulting from the organic injury are as poorly controlled by treatment and medication as alleged or, that his psychological functioning secondary to the organic injury is as represented.
Compensable injury
The cervical spine
268 The preponderance of medical opinion summarised above establishes a likely unresolved and permanent injury at the C5/6 level as a result of the accident.
269 Whilst further neurosurgical review is outstanding, the specialist on whom the plaintiff placed particular reliance, neurosurgeon Mr Brownbill, has predicted some pain in a fluctuating manner. He recommends the plaintiff remain under the care of a pain management specialist. He does not recommend review by a neurosurgeon or surgery.
270 I was satisfied that Mr Brownbill’s evidence in this regard should be afforded greater weight than the opinions of say, Mr Kossmann and Dr Muir. They both recommend further investigation of the neck by a spinal surgeon with a view to consideration of surgical intervention. In arriving at this conclusion, I took into account a number of matters. Firstly, Mr Brownbill’s speciality. There was no evidence that either Mr Kossmann or the pain management specialist had the benefit of Mr Brownbill’s neurosurgical opinion and findings before advocating further specialist review. Secondly, treating and examining doctors alike over many years have repeatedly expressed concern that non-organic factors are likely influencing the pain levels and disability reported vis-a-vis the plaintiff’s neck injury. The matters relating to credit generally, in particular, the surveillance film and the evidence relating to driving for Uber give substance to that concern and the further concern that the likely non-organic factors are not largely psychogenic in origin.
Mental or behavioural disorder
271 The medical opinions of the treating general practitioner and the two psychiatrists support a further finding of compensable injury to the plaintiff’s psyche, secondary to the neck injury. However, based on the evidence summarised and my findings relating to credit issues, already discussed in some detail, I could not be satisfied that I was in a position to fully or reliably evaluate the nature (is there a genuine Pain Disorder or Depressive Disorder?) or permanence of any mental or behavioural disturbance or disorder or, when considered globally, the severity of the consequences alleged.
272 As a result, the plaintiff did not establish the permanence and severity (the latter by reference to its consequences) of any current mental or behavioural disturbances or disorder, howsoever described by the treating doctor or the specialists. I will elaborate on these matters shortly.
Has the plaintiff retained a work capacity for suitable employment exceeding the statutory threshold?
273 It is convenient to deal with loss of earning capacity aspect of the application first. The statutory requirements in respect to obtaining leave to recover damages for loss of earning capacity have been summarised and the without injury earnings figure agreed. The plaintiff was required to establish that, after taking into account his capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining by reason of impaired functioning of his neck and/or mental impairment he does not have a physical or psychological capacity for employment which, if exercised, would result in him earning $18,158 gross or more per annum.
274 Doctors were unanimous in their view that by reason of the neck condition the plaintiff was permanently unfit for his pre-injury duties as a baker.
275 However, despite the plaintiff’s limited view of his physical and/or psychological capacity to regularly and consistently attend for employment, the evidence viewed as a whole, supports a finding that only impairment from the organic injury restricts the plaintiff’s capacity to return to employment other than suitable employment through the foreseeable future. In short, I could not be satisfied the plaintiff is psychologically unfit for employment. He, however, has a likely residual physical capacity for light/sedentary work. The restrictions on his physical capacity mentioned by doctors were not controversial.
276 In summary, as at the date of hearing, the plaintiff has not established that by reason of impaired functioning of his cervical spine and/or impairment of his psychological functioning he does not have a physical/psychological capacity for suitable employment, which if exercised, would not result in him earning 60% or more of his pre-injury earnings, namely $18,158 gross or more per annum. Furthermore, he has not established that impaired functioning of his cervical spine and/or impairment of his psychological functioning necessarily prevent further occupational rehabilitation or retraining for suitable alternative employment. This is not to deny that the plaintiff would likely need to make a graduated return to suitable employment and, depending on the occupation/s to which he seeks to return, he may need to undergo some level of retraining.
277 My findings in this regard are supported by the medical evidence. From as early as 2013 many of the treating and examining doctors have commented on the discrepancy between the complaints of pain and disability and the pathology and their clinical findings. Typically, they have attributed this discrepancy to other factors such as psychogenic factors requiring separate specialist assessment.
278 I place particular reliance on the reports obtained since 2014 from Mr Troy, Mr Brownbill, Dr Yong and Mr Dooley and on the vocational information most recently up-dated by Ms Bryant. The matters relating to the plaintiff’s credit generally, in particular, the evidence relating to driving for Uber and the surveillance film, helps justify the medical assessments which indicate a likely residual physical capacity for work.
279 It is unnecessary to repeat my observations about the evidence of Associate Professor Paoletti. My preference for Dr Kornan’s evidence (albeit obtained on an earlier date) as it relates to whether the plaintiff is suffering from a depressive disorder and his capacity for employment as at the date of hearing and my finding that the plaintiff failed to establish permanent mental or behavioural disturbance or disorder were also informed by the matters relating to the plaintiff’s credit generally, in particular, the evidence relating to driving for Uber and, more recently, the surveillance film.
280 The credit issues also left me in some doubt as to the nature and the extent to which psychological factors secondary to the organic injury were impacting on the plaintiff’s presentation.
281 Dr Long has a long-standing therapeutic relationship with the plaintiff. He was understandably cautious in articulating his reservations about the reliability of his patient’s complaints concerning pain and the disabling effect of the neck injury, as well as his presentation and description of his poor psychological functioning. The doctor’s evidence, nonetheless, helped reinforce my conclusion that, on the evidence as a whole, the plaintiff has not met the requirements of the Act as it relates to the organic injury and/or mental or behavioural disturbance or disorder and his capacity for employment.
The pain and suffering consequence
282 Having opened by contesting the permanence and seriousness of any pain and suffering consequence of physical injury, alternatively contesting the permanence and severity of any consequence of any psychological disorder, in closing the defendant made no oral or written submission specifically addressing the pain and suffering component of the application made under (a) or (c) of the definition.
283 In closing the plaintiff’s counsel submitted the focus of cross-examination of the plaintiff had been on the plaintiff’s work capacity and the challenge to his credit. As such, he was not specifically cross-examined about many of the pain and suffering consequences alleged to which the neck injury contributed. For instance, the plaintiff was not cross-examined about various sporting and leisure activities in which he alleged he could no longer engage.
284 Whilst noting that there had been a general attack on the plaintiff’s credit, counsel for the defendant submitted it was not necessary to directly challenge each item of the alleged pain and suffering consequence alleged. In particular, the film had been used to directly challenge the plaintiff about the absence of problems with any of the body functions he said were affected by injury and about the absence of evidence of psychological symptoms.
285 As mentioned, by reason of my findings on matters of credit I was not in a position to reliably evaluate the nature or permanence of any mental or behavioural disturbance or disorder. It follows that evaluation of the severity of the consequences under paragraph (c) was not also required.
286 However, for the sake of completeness, my comments on the consequences alleged in the plaintiff’s closing are summarised in the paragraphs that follow.
287 The plaintiff reports and presents with symptoms of mental or behavioural disturbance or disorder in the treatment of which he is currently prescribed what the psychiatrist considered was a low dosage of antidepressant medication.
288 The psychological consequences summarised in counsel’s closing broadly relate to ongoing use of anti-depressant medication, the effect of incapacity for work and the effect of his depressed mood, symptoms and antidepressant medication on the plaintiff’s concentration, presentation, sleep, social engagement, libido and on his ability to enjoy life.
289 I have already summarised various extracts from the affidavit material descriptive of psychological consequences. For instance, the only specific complaint of sleep disturbance contained in the plaintiff’s first affidavit concerned the psychological impact of the injury. The plaintiff deposes that worry about his ability to carry his child as the child becomes heavier caused many nights of disrupted sleep. Other complaints focus on the impact of financial pressures and the uncertainty the plaintiff faces in the future.
290 I have accepted that by reason his neck condition and likely permanent physical restrictions imposed by this, the plaintiff may be genuinely worried about how he will manage his role as a father and husband assisting his child and wife in the future and that, from time to time, these matters, concern about their changed financial circumstances and concern about the future may cause symptoms of stress and anxiety as well as affect the plaintiff’s sleep, mood and his presentation to his wife. Logically, any level of neck pain may also affect the plaintiff’s presentation. However, as my discussion of the likely level and frequency of neck pain shows in due course, I could not be satisfied that pain was of the level or constancy or as poorly controlled by medication as claimed.
291 In short, even had the plaintiff established permanent mental or behavioural disturbance or disorder, by reason of my findings on matters of credit, I could not reliably evaluate the severity of the consequences as required by the Act.
292 On the other hand, I concluded, this is not a case where the film alone or in combination with other adverse findings as to credit generally could be said to be finally determinative of the leave application with respect to any alleged pain and suffering consequence of the organic injury.
293 In doing so, I allowed for various matters: the radiological and medical evidence of likely unresolved discal injury; the acceptance by the defendant’s specialists that the injury to the neck is disabling and, as such, imposes permanent restrictions on the plaintiff’s capacity for work (similarly on his day-to-day activities) through the foreseeable future and the apparent medical consensus that the neck injury will likely cause some degree of pain through the foreseeable future.
294 The evaluation of the pain and suffering consequence of the physical injury to the plaintiff’s neck encompasses both the plaintiff’s experience of pain and the disabling effect of pain on his capabilities and enjoyment of life.
295 The evaluation of the disabling effect of pain calls for consideration of the extent to which pain continues to limit the plaintiff’s activities and to interfere with his enjoyment of life. In this regard the significance of what is lost may be informed to some extent by what the plaintiff has retained.
296 In this case the credit issues do affect particularly the evaluation of the intensity and frequency of pain and to a lesser extent the evaluation of the disabling effect of pain.
297 I have already referred to various statements made in the affidavits sworn by the plaintiff and his wife germane to the evaluation required. The plaintiff swore his second affidavit on 8 February 2016 in furtherance of his first affidavit.
298 Specific consequences were alleged by the plaintiff, some of which were summarised in counsel’s written and oral closing submissions. Broadly speaking, the physical consequences cover the plaintiffs experience of pain and its disabling effect, the side effects of medication, the loss of enjoyment of life and frustration arising from an inability to work as a baker and the impact of impairment on self-care and sporting, recreational and domestic activities.
Neck pain
299 This was described as sharp, tight and agonising and constant in its frequency. The level of his pain varied. Without strong pain relief medication, it was, the plaintiff said, often 9/10. At hearing the plaintiff confirmed this was still his evidence. The plaintiff also referred to upper back pain a few times each day, which he rated as 7/10. In February 2016 the plaintiff swore pain had: “got a bit worse”, additional to which the plaintiff said at times he also experienced very painful pain across his right collarbone. Whilst it may be the case that the plaintiff is now also experiencing right shoulder pain I could not be satisfied that the neck injury also contributed to any compensatory use of the right upper limb reported to some doctors.
300 The affidavit of the plaintiff’s wife does not distinguish between one cause of pain or symptoms from another. In effect, apart from the plaintiff’s complaints of pain, she said she witnessed the plaintiff in significant pain on a daily basis. Based on my findings on credit issues I gave less weight to their evidence as it related to the plaintiff’s likely experience of pain and the disabling effect of pain than might otherwise have been the case.
301 That said, as mentioned, I have accepted that the discal injury is likely an ongoing source of pain and pain-related disability. This finding is informed by the revealed pathology and by the medical evidence on both sides, although specialists are not unaminous particularly in their assessment of the level of the pain experienced. For instance, Mr Brownbill predicts that some pain may continue in a fluctuating manner indefinitely and recommends ongoing involvement with a pain management clinic, whereas Mr Dooley expects only intermittent pain requiring intermittent use of simple analgesia. In short, whilst the neck condition likely causes pain and disability and probably requires the use of pain relief medication, I was not in a position to reliably evaluate the level and frequency of neck pain due to organic injury.
The use and effect of pain relief medication
302 In this case, the likely permanent need for some level pain relief medication is a relevant factor in my assessment of the seriousness of the pain and suffering consequence.
303 From time to time the plaintiff’s pain relief medication has changed due to reported side-effects. The evidence establishes ongoing prescription of strong pain relief medications Lyrica and Palexia, which Dr Long said could sometimes cause sedation. I did not, however, understand the treating general practitioner’s evidence to indicate that, in this case, if used as prescribed, side-effects from these drugs do impede the plaintiff’s ability to work or drive his car or to perform day-to-day domestic and self-care activities. More recently, some doctors have received reports that the strong pain relief medications cause drowsiness. I have, however, already explained why I treat the plaintiff’s evidence regarding his use of pain relief medications and the effect of these on him as unreliable.
The loss of the opportunity to work as a baker
304 The plaintiff has been assessed as permanently unfit to return to his chosen career as a baker. The plaintiff had established a career as a baker before he was brought to Australia by the employer to work as a baker. This work history and the unsuccessful attempt to sustain a return to work as a baker are supportive of the plaintiff’s claim that before the accident he had loved and enjoyed working as a baker. In this case, the narrowing of the range of employment options open to the plaintiff post injury is probative in determining the plaintiff’s likely experience of pain and in determining his loss of enjoyment of life and the likely frustration experienced due to the plaintiff’s inability to engage in an occupation previously enjoyed by him.
305 The plaintiff is still a very young man in the early stages of his working life. In his case, the loss of the opportunity to work as a baker, should carry some considerable weight in determining the seriousness of the pain and suffering consequence.
Sleep
306 The plaintiff described sleep disrupted by pain. From time to time the plaintiff has reported to doctors his sleep is disrupted by neck pain. In his further affidavit the plaintiff said his sleep continued to be terrible. He appears to relate this to pain. His wife also noted significant sleep disturbance which she attributed to pain. I have already explained my reservations about the evidence of complaint of having overslept and missing the first appointment for the pain management program. Whilst I accept that neck pain and the medications prescribed could and probably do affect the plaintiff’s sleep patterns, I could not be satisfied of the extent to which he is so affected.
Self-care
307 The plaintiff alluded to problems with self-care involving difficulty with bathing including scrubbing his back, dressing (including putting on a jacket) and difficulty in swallowing when the level of neck pain was high. Irrespective of whether this involves bathing or dressing, I was satisfied that the neck injury likely causes problems with any self-care task where this requires the plaintiff to engage in an activity that does not comply with the restrictions doctors have imposed on activities such as lifting weights, holding the plaintiff’s neck in flexed positions, pulling and pushing and so on. I could not, however, relate the complaint of difficulty in swallowing to an organic cause.
Activities such as reading or writing
308 The plaintiff described specific problems when looking down and bending his neck and with activities such as getting up or lying down. It follows from my acceptance of the evidence of injury likely involving discal injury, that the permanent restrictions imposed, as for instance, by Mr Brownbill and Dr Yong on the plaintiff’s working activities also impact on the plaintiff’s physical capacity and performance of his day-to-day activities.
309 I have, however, assessed this complaint with due regard to both the clinical findings and assessments and the film obtained in 2016. These suggest that the plaintiff probably has better neck flexion, forward or to one side, than he is willing to concede. That said I was satisfied that weight should be given to the independent evidence that holding his neck in a flexed position in working and, and, it follows, in other environments is a likely cause of pain and should be avoided through the foreseeable future.
Sporting and recreational activities
310 Having previously been, in his words: “quite a sporty person,” the plaintiff alleged significant restriction on these activities. His wife said her husband was very active physically and socially outgoing before the accident.
311 The plaintiff explained that, when living in the Philippines he played a lot of basketball, volleyball, tennis and soccer and particularly enjoyed running. He also mentioned loss of other activities such as table tennis, motor cycling riding (last attempted in the Philippines in April 2013), target shooting last attempted on holiday in the Philippines in April 2013), participating in theme park outings with his wife or banana boat rides and games at the beach, such as frisbee, beach volley ball and parasailing and Tuna fishing from a boat in season.
312 An attempt to play basketball since the accident had the plaintiff said, increased neck pain. Based on this experience and the advice of the physiotherapist the plaintiff now avoids this activity. Having jogged for five to ten kilometres, three to five times weekly before the accident, the plaintiff now avoids activities that involve running. The plaintiff’s last attempt in May 2013 to play table tennis and to play beach games apparently failed.
313 The plaintiff said his neck injury precludes participation in rides at theme parks, as occurred in Singapore in March 2013 and another time at the Geelong Water Park. The plaintiff further laments the loss of the opportunity to play with or carry young nieces and nephews.
314 As mentioned, according to the plaintiff a recent attempt to fish from the pier had also failed apparently due to pain. Whilst the extent to which pre-accident the plaintiff engaged in many of the activities described was not clearly articulated, the medical evidence supports a finding that the discal injury probably either precludes or at the very least limits participation in most if not all of the activities described. This finding must carry some real weight particularly where, as in this case, the plaintiff is still a very young man with parenting responsibilities. This finding was again informed by the restrictions imposed that require safe lifting of weights and avoidance of forced flexion/extension involving the neck and so on.
Domestic activities.
315 Among other things, the plaintiff referred to his frustration in not being able to be involved in home improvements. He said he had given away his power tools because these exceeded the safe lifting weight imposed. Again I have accepted that the restrictions imposed would likely preclude, if not restrict an activity requiring the use of power tools through the foreseeable future. Perhaps more importantly, whilst I have expressed reservations about the extent to which plaintiff’s physical capacity to care for his son is affected, allowance still needs to made for the likely restrictions on his ability to freely lift his son in the future and engage in physically demanding sports and leisure activities in his role as a parent. Similarly, these restrictions probably affect performance of tasks such as shopping or heavier domestic duties without necessarily precluding shopping or domestic tasks to the degree suggested by the plaintiff’s oral and affidavit evidence.
Conclusions
316 To summarise then, I have found compensable unresolved discal injury to the plaintiff’s cervical spine and psychological disturbance due to the accident.
317 The plaintiff has not established:
Ø the permanence or the severity of any mental disturbance or disorder, the latter measured by reference to identifiable consequences.
Ø Permanent loss of employment capacity (physical or psychological) productive of a financial loss of 40% or more of the agreed without injury earnings figure.
318 The plaintiff has, nonetheless, established likely permanent consequences of the physical injury.
319 Assessment of the pain and suffering and loss of enjoyment of life consequence of the neck injury requires that all of the pain and suffering experienced by the plaintiff to which the neck injury materially contributes be considered globally as at the date of hearing.
320 The Act requires the Court to compare the pain and suffering consequence of the neck injury with other cases in the range of possible impairments or loss of body function to determine whether these are fairly described as being more than significant or marked and as being at least very considerable. It is well understood that the test involves a value judgment in which matters of fact and degree and of impression all play a role. In view of my findings on credit, this was never going to be a straightforward task in the present application.
321 However, having made the comparison required by the Act, I formed the view that the consequence summarised above, involving the likely permanence of some level of pain requiring pain relief medication, the likely impact of the organic condition, the loss of the opportunity to pursue his chosen career and the restrictions the impairment imposes on this comparatively young plaintiff’s functioning and way of life was indicative of a serious injury for the purposes of the Act.
322 Accordingly, the plaintiff has met the requirements of the narrative test as it relates to the pain and suffering consequence of the organic neck injury. I propose to make an order granting leave to commence proceedings for pain and suffering damages only pursuant to paragraph (a) of the definition of serious injury. The application for leave under paragraph (c) of the definition of serious injury is dismissed.
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