Russo v Truxton Holdings Pty Ltd
[2013] VCC 678
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01810
| ROCCO RUSSO | Plaintiff |
| v | |
| TRUXTON HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 May 2013 | |
DATE OF JUDGMENT: | 19 June 2013 | |
CASE MAY BE CITED AS: | Russo v Truxton Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 678 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower spine – psychological disorder – pain and suffering and loss of earning capacity – credibility of the plaintiff – director of various companies – whether pain and suffering consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff in relation to pain and suffering. Application in relation to loss of earning capacity refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Melbourne Injury Lawyers |
| For the Defendant | Ms R Kaye | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff was the director of the defendant company which owned a hotel in Coburg. On 8 July 2002, he attempted to lift cartons of beer when he felt significant pain in his lower back. He ceased working in the hotel, and was, as a result of the injury, subsequently involved in an import business. He has also been the director of a number of companies involved in investment in shares and real estate. He alleges as a result of the physical injury, he suffered a significant psychological reaction. At the present time, he claims that a range of domestic, social and recreational activities have been lost or curtailed because of injury and that he is unable to work.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on 8 July 2002. The body function said to be lost or impaired is the lumbar spine. In addition, the plaintiff claims to have suffered a permanent severe mental disorder in the nature of an Adjustment Disorder, a Major Depressive Disorder and/or a Chronic Pain Disorder. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his brother, various medical and radiological reports, WorkCover Certificates of Capacity and clinical notes were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff was born in 1960 and is now fifty-three years of age. He is divorced with three children. He migrated to Australia from Italy with his parents when he was young. He left school partway through Year 10 and obtained an apprenticeship as a panel beater.
5 He was involved in a transport accident twenty years ago and sustained a variety of injuries, including to his back and neck. However, it was not suggested by Ms Kaye, for the defendant, in the course of submissions, that any low-back injury in that accident contributed to the plaintiff’s current physical disability.
6 As a result of the transport accident, the plaintiff was off work for approximately a year and a half. Before that he had worked for about four years as a panel beater. He was then involved in various areas of employment, including with a tiling company, at the Footscray Wholesale Market, as a bar attendant at various hotels, as a sales representative and eventually as a hotel manager, having undertaken a hotel management course. According to his evidence, at some point he was involved with an associate in the purchase and sale of panel beating shops around Melbourne, of which there is little detail either in the plaintiff’s affidavits, or the histories to the very extensive range of treating and consultant medical practitioners.
7 He married his wife in 1987 and the marriage ended in 1999. He had three children, and the relationship with his former wife and the children has been difficult since separation. At times he has had limited access to his children.
8 Eventually, he, or a company of which he was a director, purchased the Post Office Hotel in Sydney Road, Coburg, which he ran from 1995 until 2002.
9 According to his affidavit,[1] when he was younger, he was able to invest money, and while he has been unable to work, has survived on the income from investments. There is no detail in his affidavit material as to the nature and extent of those investments, and it transpired in the course of cross-examination that the companies in which the plaintiff is involved as a director and shareholder, and the assets of those companies, are very substantial. I shall return to these matters shortly.
[1]Court Book (“CB”) 14
The injury and its consequences
10 On 8 July 2002, the plaintiff was lifting a number of slabs of beer in the cool room of the Post Office Hotel. In the course of that lifting, he said he heard a “pop” in his back and had difficulty moving. He ceased work at that time, and did not return to work at the hotel. Subsequently, the lease was sold.
11 He attended his local general practitioner, Dr Saddik. Somewhat curiously, according to the clinical notes of that practitioner, the attendance on 8 July 2007 appeared to relate to the results of previous blood tests, rather than any low-back injury. However, the clinical notes which follow, including from 18 July 2002, describe the plaintiff as suffering lumbar back pain. It is possible the plaintiff attended his general practitioner on 8 July 2002 before the subject incident. In any event, nothing of significance turns on the issue.
12 Dr Saddik referred the plaintiff for an x‑ray and for physiotherapy. In July 2002, he referred the plaintiff to Mr Schofield, orthopaedic surgeon, whom he first saw on 29 July 2002. He saw Mr Schofield on two further occasions, the last being 15 March 2004. On the first consultation, the plaintiff described low-back pain with referred pain into the legs, as a result of the lifting incident. Mr Schofield noted muscle spasm and arranged an MRI scan, which showed a L5-S1 disc protrusion which contacted, but did not displace, the S1 nerve roots. He referred the plaintiff to Dr Peter Ellims, an oncologist, for pain management. Mr Schofield saw the plaintiff again on 15 March 2004 and noted there had been an aggravation of his lower back pain with referred pain into both calves. He noted the plaintiff was not fit for his pre-injury duties, or “suitable duties”.
13 Dr Saddik also referred the plaintiff for osteopathic treatment.
14 The plaintiff continued under Dr Saddik’s care until May 2004, when he went Dr Michael Levick, general practitioner. That doctor referred him to Mr Goldwasser, orthopaedic surgeon, whom he saw on 30 June 2004. He described a long history of back problems, including when he was a teenager, and in relation to the motor vehicle accident when he was twenty or twenty-one. Mr Goldwasser noted stiffness in the lower spine and little flexion. He examined the radiology and advised conservative treatment. He told the plaintiff that should the pain become more troublesome and severe, surgical treatment could be considered. He diagnosed an aggravation of underlying degenerative changes in the lumbar spine as a result of the incident, and thought the plaintiff would suffer intermittent exacerbations in the lower back.
15 The report of Dr Levick[2] noted the plaintiff had been treated with anti-inflammatory medication, osteopathy, massage and Bowen therapy. He then referred the plaintiff to Mr Graham Brazenor, neurosurgeon, whom he saw on 28 July 2004. He arranged for an MRI scan, which was undertaken on 30 July 2004 and showed single disc degeneration with a small right disc protrusion at L5-S1. Mr Brazenor concluded the plaintiff had injured that disc in the workplace incident. He gave advice to the plaintiff about operative treatment, and provided a diagram which also referred to regular exercise and the sorts of activities that should be avoided.[3] The plaintiff was referred back to Mr Brazenor in November 2005. According to the report,[4] Mr Brazenor concluded that the plaintiff had not taken his advice, which he said was directed at promoting a healing of the disc. In cross-examination, the plaintiff denied that he had not followed Mr Brazenor’s advice. I prefer Mr Brazenor’s account of events. In November 2005, Mr Brazenor had available a further MRI scan of 14 October 2005, which confirmed the disc protrusion at L5-S1 which was said to have progressed slightly since the previous study. Mr Brazenor again concluded that the L5-S1 disc prolapse had occurred in the incident of 2002 and that the plaintiff was not fit for activities which involved bending and lifting. He thought there was a good chance the disc lesion would heal and that eventually the plaintiff would be pain free, although would be restricted in the activities he could undertake. Mr Brazenor commented that if the plaintiff continued to ignore his advice, then he would re-injure the disc and suffer continuous pain.[5]
[2]CB 33
[3]CB 70
[4]CB 68
[5]CB 69
16 In approximately 2004, the plaintiff commenced a business importing women’s lingerie from China. According to his affidavit,[6] the work was relatively light. The business was conducted under the name “Style Shop”. In evidence, he said he was involved in the business with two friends in a partnership and travelled overseas to China and Asia to have the garments made. The other partners were involved in the paperwork, administration and shipping. There was another person involved in selling of the garments to retailers in Australia. He claimed that he was “ripped off” by his partners and eventually ran the business by himself. He undertook the delivery of the goods, and had a bookkeeper to do the bookwork. According to his affidavit, in approximately 2005, he was unable to continue in the business because of his deteriorating psychiatric condition. To doctors he claimed he had a panic attack while in China. In any event, the business ceased and has not operated since 2005 or 2006.
[6]CB 10
17 In August 2004, the plaintiff was referred to Mr Peter Wilde, orthopaedic surgeon. The plaintiff complained of lumbosacral pain and referred pain in both legs to the knees. There was no muscle wasting, and an assessment of spinal function was said to reveal mild pain intensity which was tolerated without painkillers. Mr Wilde said the MRI scan demonstrated lumbosacral disc desiccation with irritation of the S1 nerve root. He said the injury was a small prolapse which caused intermittent right S1 radiculopathy. He recommended the plaintiff not return to heavy or physical work and should not bend or twist, sit for too long and should stand and stretch. He thought that within twelve months, the lumbosacral disc tear would heal. He said surgery was only an option if there were acute episodes of pain. He concluded the plaintiff had suffered a lumbosacral disc injury with a small prolapse in the workplace incident. He noted that the plaintiff was shortly to return to administrative type work in his business and suggested he avoid bending, lifting and twisting. Over this period, according to Dr Levick, the mainstay of the plaintiff’s treatment was massage therapy.[7]
[7]Plaintiff’s Court Book (“PCB”) 37
18 In March 2006, Dr Levick referred the plaintiff to Dr Steven Jensen, pain management specialist. The plaintiff has remained under the care of Dr Jensen, attending from time to time, to the present time. Initially he described severe lower back pain with some lessened referred pain into his legs. The plaintiff said that from time to time his legs gave way. Dr Jensen considered the plaintiff had become depressed and was said to be socially isolated. He noted both of the plaintiff’s hip joints were irritable. There were some neurological signs. In addition to the L5-S1 disc protrusion, Dr Jensen considered that the plaintiff was suffering pain from the L4-5 and L5-S1 facet joints. Dr Jensen undertook medial branch block injections at L3-4, L4-5 and L5-S1 and referred the plaintiff to Dr Paul Verrills for radio-frequency neurotomy (“RFN”). The RFN treatment has been repeated from 2006 through until the present time, approximately each year and, according to the plaintiff, the treatment is somewhat effective in that it provides temporary reduction in pain levels, but wears off over a period of time, such as to require a further treatment each year or so. Dr Jensen said that the plaintiff had a permanent incapacity for heavier work, in particular as a hotel manager. He encouraged the plaintiff to undertake an exercise program. He referred him to a psychologist because of his mental health issues. He said:
“Thus taking into account both his mental condition and his physical condition, I can only conclude that currently he has a total incapacity for all duties required of this work.”
19 This “work” referred to the tasks in the lingerie business.[8] Dr Jensen said the plaintiff’s prognosis was poor and that he would continue to have back problems of varying severity. He said the plaintiff may be able to undertake light manual duties, such as administrative duties, but would need to be able to change position frequently and avoid prolonged sitting or standing. He said the plaintiff’s depression affected his motivation.
[8]CB 59
20 In 2013, the plaintiff attended Dr Jensen complaining of severe buttock pain. He arranged x‑rays of the plaintiff’s left hip and pelvis, which confirmed the presence of impingement lesions with significant degenerative change in the hips, worse on the left side. He said that this was the source of the plaintiff’s thigh and buttock pain. He said that was not related to his work injury, but was a constitutional problem which might come to joint replacement surgery. He thought the plaintiff would continue to require RFN treatments. In his final report of February 2013,[9] he thought it was unlikely the plaintiff could be retrained or rehabilitated for suitable employment. He said his work capacity was affected by physical and psychiatric injuries. He said there may be a prominent psychiatric component affecting his physical injury. He said the plaintiff’s capacity to undertake his domestic, recreational and social activities was compromised. He said:
“I do believe there is most likely a profound and more prominent impact from the psychiatric component to his injury including his pre-existing psychiatric status which is also precluding him from completing or taking part in such activities.”[10]
[9]CB 63
[10]CB 64
21 As a result of his psychological issues, the plaintiff was referred to Ms Marg Safron, psychologist, in May 2006. She has seen him through to the present time, although only twice in 2008, thirteen times in 2009, seven times in 2010, ten times in 2011, five times in 2012 and twice thus far this year[11]. According to Ms Safron, the plaintiff initially presented with extreme anxiety and significant depression. She initially diagnosed an Adjustment Disorder with Mixed Anxiety and Depression. She treated the plaintiff with cognitive behavioural therapies and hypnotherapy. She said the plaintiff had developed a social phobia and was reluctant to leave his house and go out, except with a select group of friends. She said from a psychological point of view, the plaintiff did not have the capacity to work in a lingerie business and that was likely to persist into the future.
[11]CB 92, 100
22 By 2011, she diagnosed the plaintiff as suffering not only the Adjustment Disorder, but a Chronic Pain Disorder, a social phobia and “relational problems” with his family. She noted various psychological symptoms including that he was dependent upon a close circle of friends, felt vulnerable and worthless and was unable to function in a range of domestic and recreational activities. She said his Depression and Anxiety were severe and a range of work-related activities were affected as a result of impaired concentration, phobias about leaving the house, panic attacks, lack of motivation and the use of alcohol and marijuana to manage his pain.
23 Ms Safron said with these difficulties, and his chronic pain, he would not be able to return to his pre-injury employment nor be able to undertake alternative, even part-time, employment for the foreseeable future. She referred to the plaintiff as having average intelligence with problems passing Year 10 which she said was “likely due to a learning difficulty” and possibly with a language disorder.[12] She said he was not fit to manage basic household chores, was not eating appropriately, nor attending to matters of personal hygiene. Despite the long years of treatment, Ms Safron was of the view that it was “vital” that her psychological treatment continue as a trust had developed.
[12]CB 95
24 She said the plaintiff was suffering “genuine and disabling” pain and had developed a social anxiety. Overall, the symptoms from which he was suffering, according to Ms Safron, both as a result of physical injury, and psychological reaction were extensive and severe.
25 I should say that I have reservations about accepting the opinion of Ms Safron. While undoubtedly she has treated the plaintiff extensively, I found her description of the plaintiff’s symptoms, both physical and psychological, to be somewhat colourful and lacking in objectivity. I formed the view that she had become an advocate for the plaintiff.
26 The plaintiff was referred to Dr Brent Robertson, psychiatrist, in September 2010 by his general practitioner. He described depressive symptoms, with lowered mood, lack of energy and motivation, anxiety, insomnia and suicidal ideation. According to Dr Robertson, the main trigger for these symptoms was the workplace incident, although he said another stressor was the plaintiff’s 1999 divorce. In cross-examination, the plaintiff denied he suffered any stressful reaction to the divorce. I prefer the opinion of Dr Robertson.
27 Dr Robertson noted the plaintiff was smoking marijuana for pain relief on a regular basis. He thought the plaintiff’s symptoms were consistent with a Chronic Major Depressive Disorder of moderate severity with associated anxiety symptoms. He said there was also a problem with cannabis abuse, and a Chronic Pain Disorder. He said there were several contributing factors, including the chronic pain, loss of employment, his divorce and the minimal contact with his children. Other factors included cannabis use, his harsh upbringing and estrangement from his family of origin. He thought the prognosis was relatively poor and noted that he was taking Citalopram, an anti-depressant.
28 Dr Robertson also referred the plaintiff to Associate Professor Warrick Brewer, a consultant neuropsychologist, in March 2010. He saw the plaintiff on six occasions during that year. The plaintiff complained of feeling housebound, anxious, teary and with reduced sleep due to pain. He noted regular cannabis use and that the plaintiff would “go blank and shut down”. He obtained a history of a significant array of developmental factors affecting the plaintiff’s condition.[13] These included:
[13]CB 208B – 208C
·a harsh violent home life;
·behavioural problems at school;
·disowned his parents;
·multiple relationships with women and the breakdown of his marriage in 1999;
·his work injury; and
·more recently, that a “tradesman/hit man” had moved into the plaintiff’s house and he found it difficult to get him to leave.
29 According to Professor Brewer, the plaintiff’s mood improved with treatment. He saw a range of psychological symptoms and concluded that the plaintiff suffered a Major Depressive Disorder and Anxiety Disorder.
30 The plaintiff has remained under the treatment of Dr Levick through to the present time. According to his most recent report,[14] he said the plaintiff had multiple episodes of low-back pain with pain radiating into his legs over the years. He said the plaintiff had developed a secondary depression for which anti-depressant medication was prescribed. He noted the plaintiff’s low-back pain improved with RFN but that the effect of the procedure was lessening over time. He said the plaintiff had no work capacity due to his back injury and depression. His recreational and social activities were severely affected and that the conditions were likely to be permanent.
[14]CB 39
31 According to the plaintiff’s affidavits, the consequences he alleges which have arisen as a result of the workplace incident are that he suffers constant pain in his lower spine which requires regular medication including Nurofen Plus on an ‘as needs’ basis. His sleep is affected, and he takes Stilnox from time to time. He suffers referred pain in particular to his right leg. The pain is such that it requires RFN treatment each year or so which provides a reduction in pain, but the efficacy is lessening with the years. The pain prevents him from undertaking his work in manual employment in hotels and other areas requiring physical exertion, including as a panel beater. He claims that he has reduced reading and writing skills. He says his capacity to sit or stand for extended periods is limited. He can drive a car, but travel over long distances is difficult. His physical relationship with partners causes pain. He is unable to do the heavier domestic tasks at home. He smokes marijuana at night to relax him, and to assist with sleep.
32 He further claims he has suffered significant psychological problems which are related to his pain. This has required extensive treatment, in particular by Ms Safron. He says he has become anxious and depressed, socially withdrawn and lacking in confidence. He says his memory and concentration are impaired. The condition requires anti-depressant medication. He has had suicidal thoughts, feels tired and lethargic.
33 The plaintiff’s brother, Frank Russo, swore an affidavit which supports aspects of the plaintiff’s claim.
Consultant medical and other opinions
34 At the request of his solicitors, the plaintiff was examined by Dr Albert Kaplan, psychiatrist, in July 2011. Dr Kaplan noted the plaintiff said he had difficulty coping with running the lingerie business because he could not communicate with clients and customers. He claimed to be depressed in particular when his pain was severe. The plaintiff said he felt vulnerable and had lost self confidence. He had experienced suicidal thoughts and panic attacks. He said his appetite was poor, sleep difficult and he had diminished libido.
35 Dr Kaplan considered the plaintiff had suffered an Adjustment Disorder with Depressed Mood and said the plaintiff’s life had undergone a dramatic change since the injury. He said the plaintiff had lost confidence and had difficulty managing his financial affairs and was unable to make appropriate decisions. He noted the plaintiff was abusing cannabis and said that the outcome of the psychiatric condition would be determined by the physical injury.
36 Dr Kaplan said the plaintiff’s various symptoms, in particular his loss of confidence, vulnerability, inability to cope with stress and pressure, and difficulties with memory and concentration would impact upon his capacity to engage in pre-employment duties, or other suitable employment. He said it was unlikely the plaintiff would be able to be rehabilitated and retrained into other suitable employment.
37 The plaintiff was examined by Mr Thomas Kossmann, orthopaedic surgeon, at the request of his lawyers in August 2012. He complained to Mr Kossmann of pain in his lower spine at between 7 to 8 out of 10. Mr Kossmann concluded the plaintiff had suffered a spinal injury in the course of his employment on 8 July 2002, being a disc prolapse at L5-S1 with referred pain into both legs. He said it was likely the plaintiff would continue to suffer pain for the rest of his life but did not think surgery would assist. He considered the plaintiff would not be able to return to his employment in the hotels, in particular lifting heavier items, bending and twisting his body. However, he thought the plaintiff did have a work capacity providing he avoided those activities and activities such as climbing stairs and walking on uneven ground. He thought the plaintiff had an ability to be retrained or rehabilitated into other employment with the restrictions mentioned.
38 The plaintiff was examined at the request of his solicitors by Dr Michael Epstein in August 2012. He received a more detailed history of the plaintiff’s various businesses and financial investments than did other practitioners.[15] He told Dr Epstein that he was unable to manage even basic household chores because of his low-back pain. He said that his social contact had been reduced and he was not eating appropriately. He described difficulties with the relationship with his younger son. He said that he had made an unwise investment and had lost about $600,000 and felt angry that he had been cheated by his fellow investors. He complained of difficulties with sleeping and used marijuana to assist. He complained of chronic lower back pain with pain referred to both legs. He said his girlfriend helped with domestic chores including laundry, cooking, shopping and housework. The plaintiff said his confidence was low, that he was lonely, isolated, irritable, unmotivated and had difficulties with memory and concentration. Dr Epstein concluded the plaintiff was suffering from a Major Depressive Disorder of moderate severity and said that from a psychiatric perspective alone, the plaintiff had no current work capacity. He said the plaintiff could not be retrained nor rehabilitated.
[15]CB 124
39 Mr Bill Radley, psychologist and vocational assessment specialist, provided an extensive report. I found the report of little assistance. He concluded the plaintiff had no work capacity for any form of employment. However, that conclusion was largely based upon reading the reports of a wide range of medical practitioners.[16] Mr Radley does not have the qualifications to make an assessment of the plaintiff’s work capacity arising from his physical symptoms. He undertook a number of “vocational tests”.[17] I found these of little assistance.
[16]CB 144
[17]CB 155
40 The plaintiff was examined at the request of the defendant by Dr Simon Kennedy, psychologist, in April 2010. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with cannabis use. He said that the plaintiff’s psychological state did not of itself contribute to any work incapacity. He said from a psychological perspective the plaintiff could return to his pre-employment duties. As of 2010, he noted the plaintiff had approximately 100 therapy sessions with Ms Safron, and Dr Kennedy suggested that, given he had support from a range of other practitioners, those sessions should cease over twelve months.
41 The plaintiff was examined by Dr Timothy Entwisle, consultant psychiatrist, in March 2013 at the request of the defendant. He obtained a history of the plaintiff’s marriage separation thirteen years before and the strained relationship with his three children. According to the history provided, “This weighs heavily upon him”.[18] Dr Entwisle obtained a history of various failed relationships, the loss of $600,000 in investments and the folding of the lingerie business. He said the plaintiff’s relationships with women had ended for various reasons including the plaintiff’s mood, concerns about financial matters, pain from his back injury, heavy drinking and continued use of marijuana. He noted the report of Ms Safron where her focus was essentially upon the injury. He said that there were other factors involving, including the plaintiff’s personality, drug and alcohol issues, relationship problems and failed big business enterprises which were also making a significant contribution.
[18]CB 200
42 With respect, I agree with the assessment by Dr Entwisle. He concluded the plaintiff was suffering an Adjustment Disorder with Depressed and Anxious Mood, but also had dependent personality features, and drug and alcohol abuse. He said:
“Mr Russo’s psychiatric symptoms occur in my opinion predominantly due to factors operating in his psychosocial realm. He is estranged from his children. His most recent relationship has broken down. He continues to abuse marijuana and alcohol.
Mr Russo has a capacity for work commensurate with his transferrable skills and previous work experience. Drug and alcohol counselling is strongly suggested.”[19]
[19]CB 204
43 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in April 2013. He complained of constant low-back pain with an intermittent radiation into both legs. He said that any heavy lifting led to severe low-back pain. Mr Dooley noted that the plaintiff was taking bicarbonate of soda and herbal tea, together with “silver each day”. He reviewed the radiology and noted the broad-based disc protrusion at L5-S1, together with facet joint degenerative changes at L3-4, L4-5 and L5-S1. He said there was no evidence of nerve entrapment. He concluded the work episode had aggravated the underlying degenerative changes and the plaintiff may have sustained a disc prolapse at the lumbosacral level. He said that he could not explain all of the plaintiff’s ongoing pain on the basis of the injury alone. He said there was a significant psychological component affecting his symptoms. He said he would have expected the plaintiff to have had a greater walking capacity, although accepted he would have difficulty with heavy physical work and like activities. He said the plaintiff could engage in a range of light physical and clerical-type activities. He said it was reasonable for the plaintiff to have the RFN treatment.
Credibility of the plaintiff
44 In the course of cross-examination of the plaintiff, it emerged the plaintiff had an involvement in a range of companies which held substantial assets, details of which were not disclosed in his various affidavits, nor in the histories to the treating and consultant practitioners. These were as follows:
· He is the sole director of a company, Style Shop Pty Ltd, which was used to run the lingerie business. The company is still registered and has taxation losses. It is no longer involved in any business operation.
· He is the sole director of a company, Accredited Investments Australia Pty Ltd. The plaintiff said that this company was used to hold shares in speculative “start up” companies. He accepted, according to the current taxation return, it had assets of $232,000. He had invested in speculative shares in these companies and claimed to have suffered a loss of $600,000. He did so on the advice of friends and a solicitor. He said there had been no recent investment by this company. He said that he outlayed the sum of $600,000 although said that he had received no professional advice at the time. I found the plaintiff’s evidence in this regard difficult to believe.
· The plaintiff is the sole director of a company, Bordeau Leon Investments Pty Ltd. The company has been registered since 1998. It is the trustee of his self-managed superannuation fund. It has been involved in investing in shares in the stock market. The plaintiff accepted he ultimately made the decision as to what shares were to be purchased. He said he used to undertake research as to share investment but did not do so now. He said no shares had been purchased over the last eleven to thirteen years. According to the current taxation return, the company made a profit of over $20,000 in the 2011 year.
· The plaintiff is the sole director of a company, Pacific Star Import/Export Pty Ltd. The company has been registered since 1998. The company owns real estate, including a hotel, a house, a shop and three residential units. The properties were largely leased out, and leasing arrangements were managed by an estate agent, although the plaintiff was from time to time called on to make decisions. The hotel was the Post Office Hotel which the company stilled owned but it is leased out. The plaintiff said his solicitor undertook the contractual arrangements. The company is the trustee of a trust, Tropical Ways Trust. According to the 2012 taxation return, the trust had a business income for that year of $234,000.
· Truxton Holdings Pty Ltd is a company in which the plaintiff, his former wife and brother are directors. The company used to run the hotel and is the trustee of the Truxton Unit Trust. The company owns two shops which are again managed by an estate agent.
· D and S Russo Pty Ltd. The plaintiff said that this was his brother’s company of which he was a director.
· United Repairs Association Pty Ltd. He is a director of this company which was involved in the buying and selling of panel shops. The company no longer trades.
45 In cross-examination, the plaintiff said that he was not involved in the active running of these companies, although accepted he made various decisions from time to time. Essentially the day-to-day operation was undertaken by his various advisors, including accountants, solicitors and real estate agents. The plaintiff accepted he lived off the company investments.
46 Generally, in the course of his evidence and cross-examination, I found the plaintiff an unsatisfactory witness. He was argumentative and non-responsive. An example is that, according to the report of Mr Brazenor,[20] he had advised the plaintiff to undertake an exercise program and restrain from certain heavier activities. At a subsequent appointment, Mr Brazenor noted the plaintiff had not done what he had been advised. In cross-examination, the plaintiff denied he had failed to follow Mr Brazenor’s advice. It is clear from the report that he had not. I gained the distinct impression that wherever possible, he answered questions to serve the purpose of his application, rather than to be responsive and truthful.
[20]CB 68
47 I was particularly unimpressed with the failure to disclose his involvement in these various companies and their assets. Even accepting the submission of Mr Ingram that the plaintiff played a very small role in these companies, the failure to disclose this involvement in his affidavits and the histories, in particular, to the psychological practitioners, in my view displays a clear intent to hide this involvement. It only came out in the course of cross-examination. I further reject the plaintiff’s claim that his involvement is as minimal as he would have it. If it was the case that all the day-to-day affairs of these companies are beyond him and are undertaken by a range of professionals, I would have expected an affidavit from such persons to disclose the extent of their involvement and that the plaintiff was himself unable to conduct the affairs of the company. Even accepting that there has been modest trade in the companies which hold shares, I find it difficult to believe that the plaintiff could invest the sum of $600,000 in share investment without any advice. In the leasing of any real estate, in particular hotels, decisions must be made on a regular basis, including not only as to tenancies, but finance, maintenance and general investment. I reject the plaintiff’s evidence that he has no involvement in that regard.
48 The consequence of the failure to disclose these matters is twofold: firstly, in my view it affects the credibility of the plaintiff; and, secondly, it indicates a capacity to undertake administrative, investment and like activities far beyond that which he has disclosed in his affidavit. It is significant that no practitioner has received a detailed description of these companies and their investments, although it is noted Dr Epstein received a slightly more extensive history than most.
49 All of this leads me to conclude that I have significant reservations about the credibility of the plaintiff, and the extent to which, in particular, his claimed psychological disorder affects his work capacity and capacity to undertake domestic and light duties.
Conclusions
Physical injury
50 I accept the bulk of the medical evidence that in the workplace incident, the plaintiff suffered a disc injury in the nature of a prolapse or protrusion at the L5-S1 level. I further accept the opinion of Dr Jensen that the pain the plaintiff is suffering in his lower spine emanates, at least in part, from facet joint degeneration at L3-4 and L4-5. The plaintiff has had significant treatment over many years, in particular RFN from July 2006 through until the present time.
51 I accept the evidence of Mr Wilde[21] that the prolapse is small and that it intermittently produces referred pain into the plaintiff’s leg, although according to the radiology there is no clear displacement of the nerves.
[21]PCB 74
52 I accept the evidence of most practitioners, that such an injury, and the pain and restriction it imposes, is sufficient to prevent the plaintiff returning to his former heavier duties, either in the panel beating industry, or as a hotel manager or worker.
53 As stated, I have reservations about the evidence of the plaintiff and further accept that the plaintiff’s psychological problems are playing a role in the presentation of his physical symptoms. It is clear from the evidence of Dr Jensen, the treating pain specialist, that the physical pain has a prominent psychological component.[22] In considering the physical injury alone, that component needs to be stripped away. Mr Dooley also accepts there is a significant psychological component.[23] Even accepting the reservations I have as to the plaintiff’s evidence, and the need to consider the consequences to the plaintiff emanating from physical injury alone, I accept that the consequences to him do reach the “very considerable” level as required by the legislation. I accept the plaintiff does suffer ongoing pain and that that has led to the requirement of regular RFN treatments which are likely to continue.
[22]CB 63
[23]CB 207
54 However, the situation is less clear in examining whether the plaintiff has suffered a 40 per cent loss of earning capacity as a result of physical injury. Mr Kossmann[24] is of the view the plaintiff has the capacity for light duties. Messrs Brazenor and Wilde, although now some time ago, consider the plaintiff’s physical situation would improve if he followed advice and that he would be able to resume some employment duties. Both Doctors Levick and Jensen, treating practitioners, are of the view that, from both a physical and psychological perspective, the plaintiff has no work capacity. Mr Dooley was of the opinion the plaintiff had a capacity to engage in light physical or clerical-type duties.
[24]CB 121
55 I accept the opinion of most practitioners, that the plaintiff would not be able to engage in heavier work, in particular which required lifting of significant weights, bending, twisting and the like. The plaintiff’s work capacity is clearly restricted to light or modified duties of a clerical or management nature.
56 I need to consider the definition of “suitable employment” set forth in s5 of the Act. I note the plaintiff is now fifty-three years of age and his schooling did not go beyond Year 9. His work has been mainly in the area of management of hotels and the panel beating industry, although with other jobs, including as a sales representative. Although it is not completely clear from the material, he has some limitation in reading and writing skills, although I am not satisfied that it is as significant as he would have it. The legislation speaks of capacity for work, rather than availability of actual jobs. It is important to bear in mind, in my view, that the plaintiff is an intelligent person who has been capable of significant business success over the years, apparently in the panel beating and hotel industries. This has enabled him to acquire substantial assets through the various companies to which I have referred. I do not accept a submission of Mr Ingram that the plaintiff’s work capacity is limited to manual areas and is compromised by his lack of education and qualifications. In my view, the plaintiff has a capacity for work in a range of light management, administrative, clerical or business areas. I prefer the opinions of Mr Kossmann and Mr Dooley, that from a physical perspective the plaintiff does have a work capacity. I note the certificates of capacity from Dr Levick[25] which certifies the plaintiff as being suitable for alternative duties.
[25]CB 265-268
57 The summary of the plaintiff’s earnings over the relevant years would indicate that he had a “without injury earning” capacity of approximately $50,000.[26] The onus is upon the plaintiff to prove that his current “without injury” earning capacity has been reduced by 40 per cent or more. I am satisfied that the plaintiff has a capacity for employment, if not for full-time, then sufficient to earn in excess of $30,000. I am not satisfied, the onus being upon the plaintiff, that the plaintiff’s loss of earning capacity exceeds 40 per cent.
[26]CB 239
Psychological injury
58 I am satisfied that the plaintiff has suffered a psychological reaction to the physical pain he suffered in the workplace accident. I am satisfied he has suffered an adjustment Disorder with anxiety and Depression, as has been diagnosed by many practitioners. I was impressed by the report of Dr Robertson, the plaintiff’s treating psychiatrist. His letter to the general practitioner appears to me to be measured and considered. He is of the view that there are a range of matters contributing to the plaintiff’s psychological distress, including his divorce, the minimal contact with his children, his cannabis use, his harsh upbringing and the estrangement from his family. This is also the view of Dr Entwisle. I accept the opinion of Dr Robertson that the plaintiff is, in addition, suffering a Chronic Major Depressive Disorder of moderate severity.
59 I do not accept the views of Ms Safron for the reasons stated. I accept the plaintiff’s psychological problems have required some treatment, largely from Ms Safron, and the prescription of anti-depressant medication. I accept the view of the psychologist, Mr Kennedy, that given the extensive nature of the psychological treatment, and the lack of any treatment gains, that the treatment ought to be reviewed with a view to terminating it at some point.
60 I do not accept the complaints by the plaintiff for the severity of his psychological symptoms. In my view, the plaintiff has a far greater capacity, psychologically, than his affidavit would have it, and the histories he gives to the various practitioners. His credibility is affected by his failure to disclose his involvement in the various companies and as a result of that involvement, I am satisfied that he has a mental capacity significantly in excess of that which he would claim.
61 In order to succeed in establishing a serious injury for mental disorder, the plaintiff must achieve a higher test, that is, “severe”. That is a word of stronger force than “serious”. While the plaintiff has had psychological treatment, at times regular and at times irregular, he has not been hospitalised nor complains of some of the more severe symptoms seen in persons suffering sever mental disorders. There has been no suicidal attempt, hospitalisation, paranoia or the like. I also have regard to the fact that I am satisfied there are various other factors which are responsible for the plaintiff’s condition. Setting aside those other factors, and having regard to the definition, I am not satisfied that the plaintiff achieves the “severe” level as is required.
62 In considering whether the plaintiff has a 40 per cent loss of earning capacity from psychological factors alone, I prefer the opinions of Dr Entwisle and Mr Kennedy. Doctors Kaplan and Epstein both are of the view the plaintiff has no work capacity from a psychological perspective, but neither take into account the various other factors which I am satisfied affect the plaintiff’s psychological state. Further, neither has been provided details of the plaintiff’s involvement in the various companies, and the extensive investments of those companies. To that extent, the history obtained is flawed.
63 I bear in mind the matters set forth in s5 of the Act to be taken into account in determining suitable employment. Again, the plaintiff’s age is a factor, but I am not satisfied that the plaintiff’s capacity, from an intellectual perspective, is restricted to physical work such as a panel beater or in a hotel. In my view, his capacity is far more extensive. Again, I am not satisfied the plaintiff has suffered a loss of earning capacity of 40 per cent or more from a psychological perspective.
64 In conclusion, the plaintiff’s application as to pain and suffering succeeds. His application as to loss of earning capacity fails.
65 I shall make further consequent orders.
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