Saad v C and M Brick Pty Ltd
[2010] VCC 806
•30 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-03630
| KHALED SAAD | Plaintiff |
| v | |
| C & M BRICK PTY LTD & ORS | Defendants |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 & 2 June 2010 |
| DATE OF JUDGMENT: | 30 June 2010 |
| CASE MAY BE CITED AS: | Saad v C & M Brick Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0806 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – Accident Compensation Act 1985 - Application under s134AB(16)(b) - serious injury – whether plaintiff suffered physical and /or permanent severe mental or permanent severe behavioural disturbance or disorder following crush type injury to the left foot and leg – claim in relation to both pain and suffering and loss of earning capacity consequences – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with | Renwick Briggs |
| Mr G E Chancellor | ||
| For the Defendants | Mr W R Middleton SC with | Wisewould Mahony |
| Ms M Taaffe | Solicitors | |
| HER HONOUR: |
1 Khaled Saad commenced working in November 2004 as a casual labourer with C & M Brick Pty Ltd (C & M Brick). C & M Brick manufactures and produces bricks and pavers. Part of his duties required him to fill moulds with brick and pavers. He injured himself on 29 April 2005 when his left leg and foot became caught in the conveyor drive chain whilst reaching forward for a mould that was coming out of the oven sustaining a crushing injury to his left leg and foot (the incident).
2 Mr Saad makes his application for leave to proceed to commence common law proceedings in respect of this incident. He relies upon both sub- paragraph (a) and sub-paragraph (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Accident Compensation Act (the Act). Those paragraphs of the definition are in the following terms:
serious injury means –
(a) permanent serious impairment or loss of body function; or…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder;
3 He claims permanent serious impairment of the function of the left lower limb and/or permanent severe mental or permanent severe behavioural disturbance or disorder.
4 Leave is sought for both pain and suffering and loss of earning capacity consequences.
5 Mr Saad submits as a consequence of both the claimed physical injury and psychiatric injury that he:
(a) has no current work capacity; (b) is unable to return to his pre-injury employment; (c) is unable to return to suitable employment; (d) suffers a loss of earning capacity of 40 per centum or more; (e)
will continue permanently to suffer a loss of earning capacity of 40 per centum or more.
6 The Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors[1] that the correct template is, firstly, to determine whether the plaintiff suffered compensable injury on or after 20 October 1999; secondly, determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[1] [2005] VSCA 33
7 It is not in dispute that Mr Saad suffered a compensable injury to his left foot and leg as a consequence of the incident at work on 29 April 2005. What needs to be determined is the nature and effect of that injury and whether the physical and/or the psychiatric consequences constitute a serious injury within the meaning of the Act. The defendants deny that the plaintiff has a serious injury as defined.
8 I note that section 134AB(38)(d) requires the making of a comparison and a judgement that the consequences of mental or behavioural disturbance or disorder could be fairly described as being more than serious to the extent of being severe. The statutory test to be satisfied in psychiatric claims is, accordingly, greater than the test for physical injury.
The evidence
9 Mr Saad and Dr Norman Lewis, the treating psychiatrist, gave vive voce evidence and were cross-examined and re-examined. Mr Saad gave his evidence through a professional interpreter. He remained alert and concentrated throughout the proceedings and responded appropriately to the questions that were asked. He sat throughout the duration of his evidence.
10 The application was supported by an affidavit sworn by Mr Saad on 4 February 2009 which he adopted and the balance of evidence was tendered by counsel in documentary form comprising copies of numerous medical reports from treating and medico-legal specialists and radiology reports. The defendants relied on various medico-legal reports and surveillance videos. The attached schedule sets out the material that was tendered in the application.
Factual matters not in dispute
11 Mr Saad was born in a village in Lebanon on 5 October 1976. His father was a farmer. He did poorly at school and repeated some years. He left aged 17 having completed the equivalent of third form. He completed one year of National Service.
12 In early 2002 he migrated to Australia with his family. His English is poor and he cannot read and write in English. He is married but separated from his wife and two children. The separation occurred prior to the incident. On arrival in Australia he obtained some casual work landscaping and had some periods of unemployment. Mr Saad worked in semi skilled/labouring type jobs. He worked for a time in a bakery in early 2001 and then moved to a different bakery where he did some driving duties. He had another period of unemployment in November 2004 prior to commencing with the defendant as a casual labourer.
13 Following the incident he was off work and returned to work on modified duties on two occasions. The first return to work was in June 2005 for about two weeks.[2] He stopped because of his pain. The second attempt was in early 2006 performing light office type duties. He ceased after 6-8 weeks because of the increasing pain.[3] He has not worked since.
Medical treatment following injury
[2] PCB 22
[3] PCB 24
14 Mr Saad was taken via ambulance to the Northern Hospital where he was attended to in the Emergency Department. His wounds were treated and stitched and an x-ray of the left ankle and foot showed no bony abnormalities.[4]
[4] Exhibit 2, x-ray of left ankle and foot report of Dr Philip James, 29 April 2005
15 The hospital records show that he had a superficial two centimetre graze and bruise across the first metatarsal area, a two centimetre laceration just underneath the big toe on the lateral side of the toe, three centimetre laceration just underneath the third toe going almost circumferential and a small half a centimetre superficial laceration under the fourth toe. There were two sutures under the big toe and three under the third toe. He was prescribed antibiotics and a back slab from toes to below the knee was performed. He was given crutches and painkillers and referred for ongoing treatment in the wound clinic.[5]
[5] Exhibit P3
16 In May 2005, Mr Saad sought treatment from Dr Wassouf, general practitioner. He arranged an MRI scan.
17 The MRI of the left foot and ankle taken on 17 May 2005 is reported as follows:
“Report Minimum joint fluid is demonstrated in the ankle, but there is no marrow abnormality in the talus and the talar dome is intact. Sub-talar joint is within normal limits. The calcaneous is within normal limits. Ill-defined marrow oedema is demonstrated in the anterior inferior cuboid and to a lesser extent the base of the adjacent second, third and fourth metatarsals. More extensive marrow oedema is seen involving essentially the entire shaft of the first metatarsal. More minor marrow oedema is seen in the distal head of the third metatarsal. No definite fracture line is identified and there is minor oedema demonstrated in the soft tissue and muscles overlying the dorsum of the foot. No focal collection is seen and there is no definite tendon tear. The Achilles and plantar facia are within normal limits.
Conclusion extensive bone bruise without definite fracture is demonstrated of the entire shaft of the first metatarsal. More minor bone bruising is demonstrated to the base of the second to fifth metatarsals, intero-inferior cuboid and distal head of the third metatarsal. Alignment remains anatomic.” Signed Dr R M O’Sullivan.
18 Mr Saad next consulted Dr Mostafa, general practitioner, who referred him to Mr Gul M Keng, orthopaedic surgeon.[6] He first saw Mr Saad on 14 September 2005 and continued to manage him until about three months ago at which time Mr Keng ceased treating him due to his own ill health.
[6] PCB 22
19 Mr Keng wrongly records in his reports that the plaintiff suffered from a crush fracture to the bones in the left foot. That fracture has not been revealed following any of the extensive radiological investigations.
20 Mr Saad complained to Mr Keng of aches and pain in the region of the left foot, ankle and leg. The intensity of it was such that it woke him at night. Mr Keng noted “pain increased and was unable to walk for about six weeks and then walked with crutches and wore below the knee rigid foot brace.”
21 The report sets out in detail the findings following the initial examination. The plaintiff could not weight bear and weight bearing increased pain. The wound was leaking and there was a collection of pus that was causing pain. There was a skin lesion in the upper tibia and there was skin oedema in the whole of the leg. His toes had a bluish colour. There was swelling at the ankle and there was a smelly discharge from the ankle. Examination of the left ankle revealed he could dorsiflex and plantar flex the ankle but the ankle was restricted and he could not move the ankle fully.
22 Examination of the left leg revealed marked swelling in the region of the knee and in the foot and toes. There was pitting oedema in the left leg. Three inches below the medial joint line there was a small lesion which was about half a centimetre deep and there was a discharge which was purulent. There was pitting oedema in the lower part of the leg.
23 Examination of the left knee revealed marked swelling of the left knee. Mobility was restricted and there was effusion in the knee. Medial, lateral, anterior and posterior cruciate ligaments were intact. He was tender on the medial side of the joint line. There was ligamentous instability especially on medial ligaments. Examination of the left foot showed pitting oedema of the foot. Mobility was restricted.
24 Mr Keng confirmed Mr Saad suffered from cellulitis which was causing a lot of pain and injury to the soft tissues which he attributed to a fracture. At that time he said the plaintiff’s prognosis was guarded. He recommended medication and physiotherapy.[7]
[7] Mr G Keng report to Renwick Briggs Solicitors, 3 April 2006, PCB 34-36
25 A further MRI of the left foot and leg was performed on 21 September 2005 and reported as follows:
“Findings: Left foot: there was no bone marrow oedema. No effusion. No evidence of fracture. The articular cartilage of the talar dome appears intact. The flexor and extensor tendons appear normal. The Achilles tendon and plantar facia appear normal. The anterior talofibular ligament is thickened, suggesting previous injury. There is no evidence of full thickness tear.
Left tibia: Some cutaneous thickening is noted in the upper pre-tibial region. A little oedema is noted in the underlying fat. There is no collection. Skin markers have been placed in this region where there is a known skin lesion. This presumably represents thickened skin. The underlying bone appears normal. There is no fracture or bone marrow oedema. The muscles of the calf appear normal. There is no evidence of periosteal reaction or marrow oedema. No evidence of muscle denovation.
Conclusion: cutaneous lesion of left upper tibia. Evidence of previous partial thickness injury to the anterior talar fibular ligament resulting in thickening of the ligament. No other significant finding. Dr Michael Deany.”
26 Further, an isotope bone scan performed on 22 September 2005 is reported as follows:
“A three phase examination of the lower limbs from knees to toes has been obtained. There is mild static bone phase increased activity in the left tibio- talar joint region and in the left tarso-metatarsal joint region. Minimal increased activity is also noted in the region of the left first metatarsal head – sesamoid articulation. These findings are consistent with non-specific arthropathic changes.
X-ray left tibia, fibula, ankle and foot. No skeletal or joint abnormality is detected at any site. Signed Dr Albert Kominski.”
27 In a subsequent letter dated 3 July 2006, Mr Keng repeats the same information as set out in his initial report.[8] His evidence is largely historical and does not record the progress of Mr Saad’s condition following injury.
[8] PCB 37-39
28 Unfortunately, the Court has not had the advantage of hearing from Mr Keng nor is there a report updating the plaintiff’s progress due to his own illness. Mr Saad’s evidence is that Mr Keng reviewed him and continued to manage and treat the plaintiff’s left leg condition up until a couple of months ago. He said that he would see him regularly and the doctor would massage his foot.
29 Mr Saad had a short period of physiotherapy but that ceased in 2006. In his evidence he confirmed that he no longer uses any stick or crutch and last used one about two years ago.[9]
[9] T 29, L11-12
30 Mr Saad’s evidence was that he still consults Dr Burgin, general practitioner, and Dr Lewis, psychiatrist. He confirmed in cross-examination that the last time he was seen by Dr Burgin was three months ago when he prescribed pain relief medication. He said he takes Panadeine Forte, four tablets a day, and he is also prescribed Endep, anti-depressant and Temazepam, a sleeping tablet by Dr Lewis.
31 Dr Burgin provided two reports, one to Renwick Briggs, the plaintiff’s solicitors, dated 23 June 2006, and one to John McGuire, Accident Compensation Conciliation Service, dated 10 January 2009.
32 In those reports the doctor confirms he first saw Mr Saad on 2 June 2006 for treatment for the crush injury to his left foot (approximately 13 months post incident). His examination revealed some slight stiffness of the left ankle with mild decrease in range of movement of the left ankle. He also had some overriding of the toes and severe excoriation of the skin between the toes. He recommended that Mr Saad continued with Mobic and Panadeine Forte. He anticipated that the plaintiff would make a near complete recovery from his soft tissue injury. He was somewhat puzzled that the plaintiff had been affected by his injury for such a prolonged period of time. He suggested it may be that there are psychological factors at play or that he may have developed a chronic pain syndrome.[10]
[10] PCB 62
33 In a letter dated 28 January 2010 Dr Burgin confirmed that he has not supplied any medical certificates for the plaintiff’s condition since April 2008 and that he had nothing to add to his previous correspondence.[11]
[11] PCB 64A
34 Mr Saad was regularly reviewed by Dr Burgin over 2006 and eventually he referred him to the Melbourne Pain Management Clinic where he was seen by Dr Leonard Rose.
35 In his report of 9 July 2008 Dr Rose notes that when the plaintiff was seen by him on 25 October 2006 the left foot appeared to be cooler than the right and this was to a significant degree. He noticed he was hypersensitive to touch over the dorsum of the left foot and the foot appeared to be slightly swollen. He diagnosed Chronic Regional Pain Syndrome Type I (CRPS).[12]
[12] PCB 66
36 CRPS is thought to occur in patients who have suffered from injuries to the peripheral nervous system which leads to changes within the central nervous system and particularly to the pathways which modulate pain experienced.
37 Dr Rose saw Mr Saad on one further occasion on 25 November 2006. He referred Mr Saad to Dr Peter Courtney, an anaesthetist, who provided treatment for pain management.
38 In a letter he received from Dr Courtney dated 27 February 2007 it is noted that there had been some reduction in pain since the plaintiff had started on Epilim and the left foot had been warmer than the right although it still displayed cold allodynia as well as allodynia to pressure and pin prick.[13]
[13] PCB 67
39 Further appointments were made for Mr Saad to see Dr Rose on 1 March 2007, 19 April 2007 and 1 May 2007. None of those appointments were kept and as a consequence he has not seen Mr Saad since November 2006.[14]
[14] PCB 67
40 Mr Saad is not receiving any specialist treatment currently for his left leg/foot condition. Mr Saad told the Court that he last saw his general practitioner Dr Burgin three months ago however there is no up-to-date report from Dr Burgin.[15] He regularly attends Dr Lewis his psychiatrist and takes prescribed medicine.[16]
The consequences of the plaintiff’s physical and psychiatric injury
[15] T12, L8
[16] T48, L23-24
41 Mr Saad evidence is that he continues to experience pain from about his knee in the front going down from the front of the knee to the foot and into the sole of the foot. Sometimes the pain goes from the sole of his foot up to the knee.[17] If he stands for too long his foot becomes numb. He maintains that since he injured his foot in April 2005 the physical problem has remained the same and the pain is severe and constant and he cannot weight bear for too long.[18]
[17] T14, L23-31; T15, L 1-5
[18] T18, L12-31
42 He says he can stand for maybe 10 minutes on the foot and then it becomes numb.[19] He says he can walk for about 10 or 12 minutes and then he cannot walk.[20] The leg gets numb and shakes. He demonstrated how his foot shakes whilst he was in the witness box.[21] The shaking demonstration was odd given that he had been sitting not standing for some considerable time. From my observations it seemed that the shaking was not spontaneous but rather something that the plaintiff was himself controlling. He says he does not run because of the pain in his leg.[22] He says he becomes nervous very quickly in front of people and socialises very little with friends.[23] When asked what he does during the day he said that he just sits at home and goes out very little.[24] He sits on the sofa relaxing his leg and watches the television.[25] He says when he walks that he walks with a limp.
[19] T19, L7-8
[20] T19, L25-27
[21] T20, L1-17
[22] T21, L12
[23] T24, L23-25
[24] T24, L25-30
[25] T25, L7-9
43 Mr Saad confirmed that there was not any job he could do and that he has not looked for any job since he last worked with C&M Brick because he was sick. He feels that his life has changed and he has lost all normal life. He says he cannot work because of his condition.
44 In re-examination he said that he could not work because of his head and also he has a very short temper and because of the pain in his leg he has to relax.[26]
[26] T48, L23-24
45 In Court, I inspected the plaintiff’s left foot at the request of counsel. It appeared to be normal colour with no obvious swelling. There was a small scar on the dorsum of the left foot and no other scarring was evident. I observed Mr Saad walking freely about the courtroom without any sign of limping.
Credibility
46 The plaintiff’s credibility was put in issue by the defendants. The Court was shown video surveillance.
47 I am mindful of what was said by the Court of Appeal in Dordev v Cowan (2006) VSCA 254 in relation to a plaintiff’s credit in cases of this type. As Chernov JA said at paragraph [14] of the judgment, a plaintiff’s credibility is relevant not only to whether his own evidence should be accepted but is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility of the history given to them by the plaintiff.
48 Mr Saad did suffer a crush injury to the left leg and foot of some significance following the incident that resulted in lacerations to the left foot and leg and extensive bone bruising as demonstrated on the MRI’s (see paragraphs [17] and [25]). His progress was slow initially with evidence of infection in the wound and celluitis that took some time to heal. There were signs of CRPS Type 1 in 2006 that appear to have resolved.
49 I am satisfied that Mr Saad’s physical condition has with time improved considerably and he is now able to weight bear and walk normally. Dr Lewis, psychiatrist agrees that Mr Saad walks normally. I am further satisfied having regard to the evidence of Dr Yong, Mr Battlay, Mr Hart and Dr Kostos whose opinions are referred to later in my reasons that there are no recently documented objective signs of any ongoing physical condition related to the incident.
50 The surveillance films collectively in my view do not show a man who suffers from persistent pain in the left lower leg and foot, who has constant headaches and who cannot run or who can only walk for a few minutes before he begins limping. Nor do they show a person who always feels hopeless, helpless, useless, low in self confidence and self esteem, frustrated, lonely, isolated, irritable, exhausted, agitated and unmotivated who has lost interest in grooming. All of those complaints have been made to various examiners.
The first film
51 The first film shown starts on 20 September 2006 and was of five minutes duration. It shows the plaintiff walking with the aid of a walking stick limping. He nonetheless walks along the street at a brisk pace accompanied by another person. He is shown hopping into the passenger’s side of a waiting car.
The second film
52 The second film starts on 11 June 2008. It shows the plaintiff driving. He backs the car out of a carpark and drives off down the road. Shortly after Mr Saad’s car is seen parked on the nature strip in Daley Street, Glenroy. He is seen reversing out of the park. He drives off. He is then seen standing outside 64 Daley Street talking to a group of males. He looks clean shaven and well dressed. He is seen with his right leg leaning against the brick pillar and he is weight bearing on the left leg. He is seen leaving his friends and he then jogs across the road. When asked why he was able to jog on that occasion, the plaintiff gave an implausible answer that he was scared he was going to get hit by a four-wheel drive that was coming towards him. From viewing the film it is obvious that the four-wheel drive vehicle is being driven away from the plaintiff and the explanation is just not plausible.
The third film
53 The third film starts on 11 August 2008. The plaintiff is seen reversing his car out of a carpark. On 25 August 2008 he is seen in Sydney Road, Coburg walking across the road, walking in the street, attending at the NAB automatic teller machine and walking across the road. There is no obvious limping observed. On 25 August 2008, at around 4.30pm, he is seen driving off in his car. The car is parked at a factory “Backs Auto Salvage Mechanical Repairs” for some hours. At 7.15pm car is seen in the street. The plaintiff confirmed that he went to “Backs Auto Salvage Mechanical Repairs” Coolaroo and remained there for two and a half hours whilst his car was being fixed.
The fourth film
54 The fourth film starts on 5 May 2010. He is seen in Edwards Street, Reservoir. He attends an IGA store, a tobacco shop in Spring Street, Reservoir and the offices of Barry Plant, Real Estate Agent. He is seen walking freely along the street without any obvious limp. He was with his friend with whom he lives. He is seen outside a coffee shop in Waterfield Street, Reservoir, where he sits with two males and sometimes a third male. He seems happy and at ease sitting at the table outside the coffee shop, chatting and gesticulating with his friends. He appears very animated. He is shown later in the film walking across to the carpark. His walking was not in any way inhibited. He appears to be walking normally.
55 Notwithstanding that video surveillance is a snap shot in time the combined effect of the films in my judgement reflects the progression in Mr Saad’s condition over the years. The later films demonstrate that the plaintiff now walks in a free and unrestricted manner. That is consistent with my own observations. It is apparent that he is able to drive his vehicle without limitations or restrictions and that he is also able to participate in social activity and interact appropriately with his friends. He appeared happy and at ease particularly in the last video.
56 My view of the totality of the video footage is that it is not consistent with the account given by the plaintiff in his evidence or in the histories that he relates to the various medical experts.
57 Further his evidence concerning the level pain relief medication was not satisfactory and is another example of him exaggerating the consequences of his injury. Mr Saad gave evidence he takes up to 4 Panadeine Forte per day. Whilst in court he produced a packet of Panadeine Forte tablets that had been dispensed on 12 November 2009 with instructions to take one to two tablets twice a day. There were 20 tablets in the box and only a few of them had been consumed. He did not produce any other evidence to confirm his evidence concerning the level of Panadeine Forte medication that he says he regularly ingests.
58 I note that the plaintiff’s evidence was not supported by any evidence of another person such as the male person with whom he is currently sharing his living arrangements or his estranged wife.
59 Overall I did not find the plaintiff to be a reliable and credible witness or historian. My conclusion is drawn from the totality of the evidence and looking at the videos in the context of the plaintiff’s evidence, his complaints to the various doctors’, their observations of the plaintiff and clinical findings made over the many years since the incident occurred. I am satisfied that Mr Saad has made a good recovery from his physical injury and that on occasion when examined by doctors he has feigned limping and has exaggerated both the physical and psychiatric consequences of his injury.
60 I did not form a very favourable view of the plaintiff. That casts considerable doubt upon the veracity of what he has told the doctors and in particular, his treating doctors about the consequences of his injury.
The plaintiff’s medical evidence – physical injury
61 Mr Saad has been seen for medico-legal purposes by a number of specialists. Mr Geoffrey Littlejohn, rheumatologist, examined Mr Saad on 22 December 2009 at the request of the defendant’s solicitors. The plaintiff seeks to rely on this report. He documented that his main problem relates to the left thigh, knee and foot.
62 Mr Saad complained to Mr Littlejohn that he had symptoms in his left leg and that he feels cold from the knee to the foot on the anterior aspect of the leg. Sometimes his toes appear blue. Sometimes he gets pins and needles and numbness sensation in the toes. He feels pressure in his head. He feels lonely and isolated. He said the symptoms are felt all the time but can fluctuate if he does too much activity. For instance, he can walk only for six to seven minutes and then feels increased pressure and discomfort in the leg and then sits down for 30 minutes and the sensations diminish.[27]
[27] PCB 68
63 Mr Littlejohn’s examination showed no wasting in the thighs or calves or across the mid-foot when one side was compared to the other. The range of motion in knees, ankles, sub-talar and mid-tarsal joints were normal. Mr Saad had some trouble in fully flexing the toes due to discomfort. There was mild puffiness over the forefoot. He was tender to touch over the left lower foot and mildly tender in the left ankle region and a little tender in the leg and no tenderness above the knee. The right leg was not tender at all. [28]
[28] DCB 68
64 His opinion is that Mr Saad presents with clinical features of resolving Regional Pain Syndrome affecting the left leg region. This follows the crush injury at work on 29 April 2005. He could find no clinical evidence of ongoing tissue damage or injury anymore.[29] He believes that the injury has passed and the pain syndrome, a sequelae of the injury, is the cause of his ongoing symptoms.[30] Psychological factors are key features contributing to the present condition. [31]
[29] DCB 69
[30] DCB 70
[31] DC 70
65 Mr Littlejohn considered that the plaintiff’s capacity for work based solely on the physical symptoms arising from injury is good and he could return to modified duties.
66 He considered that the following occupations, store person, packer, shelf filler, and product assembler were occupations that Mr Saad could perform provided he was not required to stand on his feet for prolonged periods of time.[32]
[32] DCB 71 &72
67 He also noted specific job descriptions of kit assembler, assembly operator, forklift driver, process worker and believes those jobs are also within his physical capacity as long as Mr Saad does not stand for any prolonged period of time. The job of a forklift driver would be problematic as a job for him to rehabilitate into. Seating process working would be within his capability, as would kit assembler and assembly operator.[33]
The defendant’s medical evidence- physical injury
[33] DCB 72
68 Some of the material the defendant sought to rely upon is somewhat dated. For instance, Ms Judith McKenzie, surgeon, provided a report dated 18 November 2005 following her examination on 16 November 2005.
69 Ms McKenzie confirmed the crush injury to the left foot following the incident at work. The laceration in the plantar aspect of the foot was sutured and thereafter management was conservative.
70 Mr Saad was able to return to part-time light duties in June 2005 but was unable to continue working beyond August 2005 because of below knee leg pain, ankle swelling, ankle stiffness, energy loss, sleep disturbance and reduced activity level. At that time he was walking with the aid of a stick and his gait was impaired.
71 She considered he had evidence of an emotional disturbance with abnormal pain behaviour. She did, however, consider that he was physically capable of undertaking office-type duties especially if he could do the work whilst seated with the left foot elevated. She considered he was physically capable of undertaking sedentary type duties.[34]
[34] DCB 11
72 Professor Kenneth Myers, surgeon, examined the plaintiff on 28 July 2005. He, too, confirmed soft tissue injury as a consequence of the incident at work. He raised the possibility of damage to the plantar bone in the mid-foot. However, that has been discounted by the subsequent radiological investigations.[35]
[35] DCB 14
73 He anticipated that Mr Saad would have a prolonged period of conservative treatment with a continuing incapacity for work for at least 6 months and he suggested further specialist treatment and that Mr Saad be encouraged to return to work.
74 Dr Dominic Yong, specialist occupational physician, reviewed Mr Saad on 14 October 2005 and attended the C&M Brick factory for a worksite assessment. His report confirmed that Mr Saad initially returned to work in June 2005 for a two month period. He was performing four hour shifts for three hours per day doing mainly administrative tasks. On 19 September 2005, Mr Saad was certified unfit for work following a change of medical practitioner.
75 His examination revealed no overt worrying clinical signs suggesting a significant medical condition. He recommended a return to work plan on modified duties. He considered that Mr Saad had a capacity for work including for the various tasks performed in the manufacturing area that he was shown during the worksite assessment.[36] It is not clear whether this return to work plan was recommended to the plaintiff.
[36] DCB 18 &19
76 Mr Peter Battlay, surgeon, examined Mr Saad on 11 July 2006. His examination revealed no clinical abnormality of the left leg. He considered Mr Saad’s condition was stable and that he had an abnormal pain reaction. His opinion was that the plaintiff’s claim in relation to unremitting pain in the left lower leg and foot and loss of motion was not physically based.[37] There were no symptoms or signs of CRPS. He observed normal temperature, sweating, colour, circulation of the left foot and no visible swelling around the ankle.[38]
[37] DCB 24
[38] DCB 23
77 Mr John A L Hart, clinical associate professor of surgery, reviewed Mr Saad on 28 September 2006. Following his examination he confirmed a crush injury to the foot following the incident at work with no bony injury. He encountered difficulties examining the left foot and ankle because of the plaintiff’s extreme sensitivity to light touch but considered that there was no hypersensitivity normally seen in CRPS Type 1.
78 It is of some interest that despite Mr Saad telling Mr Hart that he had been on crutches for 18 months and claimed to not to be using his leg that Mr Hart found that there was no wasting of the left leg. Mr Battlay agrees with that assessment.[39] Mr Hart opines, “One would have expected for someone with a significant disability such as he has to show evidence of calf wasting after such a prolonged period of immobilisation but there is no evidence of that.”[40]
[39] DCB 23
[40] DCB 54
79 Mr Hart considered that the plaintiff’s soft tissue injury was related to the incident at work. He noted the plaintiff’s claim of severe pain in the foot but states that there never has been any evidence of any significant injury to cause this and he agrees that the plaintiff does exhibit signs of abnormal illness behaviour. He recommended retraining with a view to encourage a return to work.[41]
[41] DCB 55
80 He considers Mr Saad would be suitable for work that did not involve standing. He did not consider him fit for his normal duties. His incapacity for work was due to psychiatric issues associated with the injury but he is not totally incapacitated from the point of view of his physical injuries. He considered that the soft tissue injuries had fully recovered.[42]
[42] DCB 55
81 At final review on 19 June 2007, Mr Hart noted that Mr Saad’s condition had not changed. He agreed that Mr Saad did not have a current capacity for work and that the incapacity is likely to continue indefinitely and there is no question Mr Saad has had a severe psychological reaction to what really was a relatively minor soft tissue injury to the left foot and ankle.[43]
[43] DCB 60
82 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 21 August 2008. Mr Saad complained that his symptoms make it impossible for him to stand or walk for more than five minutes at most and he is completely unable to run or be active. On only very rare occasions does he drive a motor vehicle and he is normally driven about by brothers and friends. This is contrary to what I have observed in the video surveillance material taken on 11 June 2008 and 11 and 25 August 2008.
83 On examination, Mr Jones documented a bizarre limp and noted that Mr Saad did not appear to take any weight on his left forefoot. He found no evidence to suggest that a post-operative reflex dystrophy had developed. He considered that any work component to his left foot injury had resolved in a physical sense. He says that he has a current work capacity and would probably be able to undertake a wide range of work activities. He agrees that the difficulties are psychological rather than physical.[44]
[44] DCB 67
84 Finally, Dr Tony Kostos, rheumatologist, reviewed the plaintiff on 24 February 2010. Following his examination he confirms laceration to the sole of his left foot as a result of the incident. He could not detect the laceration therefore it has healed satisfactorily. He considered that Mr Saad demonstrated marked exaggerated pain response to light skin touch in the absence of any other objective physical findings. He considered that Mr Saad does not meet the diagnostic criteria for the diagnosis of CRPS Type 1. Although he described symptoms of the condition, there were no objective physical findings to confirm its presence. [45]
[45] DCB 86c
85 Dr Kostos reviewed the MRI scans and confirmed that the MRI scan performed on 21 September 2005 shows that all of the bone bruising has resolved and that all that was noted was minor thickening of the anterior, talofibular ligament suggesting a previous injury.[46]
[46] DCB 86c
86 He opines that Mr Saad did seem to have a significant injury to the left foot at the time which apparently resulted in a laceration and extensive bone bruising and possibly also an injury to the anterior talofibular ligament. However, the latter finding may not necessarily have been related to that particular injury given he played soccer in the past. However, subsequent and a repeat scan performed four months later showed complete resolution of the bone bruising. This suggests that whatever the underlying pathology was it has resolved and that the current findings could not be explained on the basis of a previous ankle ligament injury.[47]
[47] DCB 86c
87 Dr Kostos had concerns about the plaintiff’s presentation which seemed to him to be out of all proportion to the facts as they were known and therefore concluded non-physical features pre-dominate in his presentation. He did not recommend any further treatment for a physical problem. On a physical basis he considers the plaintiff has a capacity to perform occupations such as store person, packer, shelf filler, product assembler, kit assembler, assembly operator, forklift driver and process worker.[48]
Findings - Physical Injury
[48] DCB 86c
88 I am satisfied that following the incident Mr Saad suffered a crush injury to the left leg and foot which resulted in lacerations to the leg and foot and extensive bone bruising.
89 I am further satisfied that he developed symptoms of CRPS Type 1 following the physical injury that has resolved with appropriate management. I accept the expressed opinions of Dr Yong, Mr Hart, Mr Battlay, Mr Jones and Dr Kostos and find that the plaintiff’s physical injury has resolved and that there are no objective signs currently to confirm the presence of CRPS Type 1.
90 I must be satisfied that the injury resulting from the incident can be described as serious, namely whether the consequences to the plaintiff of the injury to the left leg and foot when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c). The statutory test requires a judgment based on an evaluation of the evidence. The relevant evaluation is of impairment consequences not injury.
91 Given that I have found the physical injury has resolved and there is no impairment to the lower left limb I am not satisfied the physical consequences of the injury are such that the plaintiff meets to test of serious injury as defined.
92 Further having regard to the medical opinions in particular, the evidence of Mr Littlejohn, Dr Kostos and Mr Jones who have had the advantage of reviewing the plaintiff in more recent times I find that he is not precluded from suitable employment by reason of his physical injury.
93 On that basis, the plaintiff’s claim under sub-paragraph (a) claim fails. The psychiatric injury – the plaintiff’s evidence
94 I shall now consider the plaintiff’s claim under sub-paragraph (c).
95 Prior to the incident it is accepted that Mr Saad did not have a past history of any psychiatric illness.
96 The plaintiff relies heavily on the evidence of his treating psychiatrist, Dr Norman Lewis who is very experienced. He has treated Mr Saad since 6 December 2005.
97 Dr Lewis’s diagnosis is that Mr Saad suffers from post traumatic neurosis to a moderate degree of an anxious and depressed type with phobias.[49] He considers given the injury occurred on 25 April 2005 that Mr Saad’s prognosis is poor. He considers the nature of his depression and anxiety prevents the plaintiff from working due to poor memory, loss of concentration, as well as loss of confidence. He considers the condition to be stabilised and permanent in nature.[50]
[49] PCB 51
[50] PCB 60A
98 Dr Lewis agreed in cross-examination that he had seen Mr Saad on about 50 occasions. His clinical notes show that his attendances over the most recent time have been approximately monthly. There are occasions when he does not see the plaintiff for some time but it appears, having reviewed the clinical notes, that the attendances are fairly regular. His notes are extremely concise and refer in only a very general manner to the plaintiff’s status and note the diagnosis of anxiety and depression and prescriptions for Endep and Temazepam. He has provided supportive psychotherapy, counselling and prescribes medication.
99 I note when Mr Saad was seen by Dr Lester Walton, psychiatrist, at the request of the defendants, he noted that the dosage of the anti-depressant Endep, 25mg at night, as well as sleeping medication Temazepam, 2mg at night (as was then prescribed by Dr Lewis), would be most unlikely to have any therapeutic benefit.
100 Mr Michael Epstein, psychiatrist, interviewed Mr Saad on 1 August 2007 with the assistance of his brother-in-law who acted as an interpreter. He noted that at that time he walked slowly with a limp favouring his left leg, using a walking stick in his left hand and was leaning on the walking stick. He diagnosed chronic Adjustment Disorder with a depressed mood and said that his condition was stable and prognosis poor.
101 Mr Epstein reviewed him on 23 December 2009 with a professional interpreter and at that time he had available to him reports from Dr David Burgin, Dr Norman Lewis and the surveillance report dated 1 September 2008 and two DVDs labelled 29 June 2009.
102 He confirmed that when he experienced the crush injury to his left lower leg that Mr Saad may well have had some mild post traumatic symptoms. He noted that he appears to have developed a chronic pain disorder in which his complaints of pain and discomfort are in excess of any physical signs. He considered that his resultant chronic adjustment disorder with depressed mood relates to the chronic pain disorder. He considers his capacity for employment was primarily limited by his psychiatric state. His condition has stabilised, prognosis for improvement was poor.[51]
[51] PCB 74&75
103 Given my finding that Mr Saad’s physical condition has resolved I reject Mr Epstein’s expressed opinion his diagnosis being dependant on a finding that Mr Saad suffers from a chronic pain disorder.
The defendant’s psychiatric evidence
104 Mr Walton examined Mr Saad on 11 July 2006. He told him that he likes to be alone and deliberately avoids contact with his wife and children. He spends much of the time sleeping and he does remain able to drive although he limits himself to three or five hours at a time and he has no social life and watches television at times.
105 Mr Walton disagrees with the diagnosis provided from Dr Lewis of post traumatic neurosis. He did, however, agree that at that time he had significant mood disturbance and related symptoms to a point where he would qualify for a diagnosis of an Adjustment Disorder with anxiety and depressed mood. He accepts that his psychiatric symptoms occurred as a reaction to pain. He considered at that time he saw him, Mr Saad there was a significant contribution and it remained current.[52]
[52] DCB 31
106 Dr Alan Jager, forensic psychiatrist, saw the plaintiff on 1 October 2006. His diagnosis was Post Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder following the injury at work. At that time he thought he had no current work capacity.[53]
[53] DCB 37
107 Dr Jager was shown Mr Hart’s report of 28 September 2006 and in a supplementary report dated 15 November 2006 stated that he did not resile from his earlier expressed opinion.
108 He re-examined the plaintiff on 8 May 2007 and repeated his findings in relation to diagnosis and work capacity.[54] He was optimistic that Mr Saad could regain the capacity to work within 3-8 months.
[54] DCB 43
109 Dr Jager interviewed Mr Saad again on 15 September 2008. He observed the surveillance report dated 13 June 2008 together with the video and the report of Dr C Jones, orthopaedic surgeon, dated 1 September 2008.
110 Dr Jager considered at that time that there was a disjunction between the severity of the plaintiff’s reported symptoms, the nature of his symptoms and the surveillance material.[55] Mr Saad told him he isolated himself and felt his head would explode if he were around people. He did not present in that manner on the surveillance video he viewed. He considered nonetheless that if Mr Saad’s reported symptoms and his presentation are genuine one would consider he had a work related PTSD and major depressive disorder. Should he be falsifying his symptoms it may be that his condition had resolved and that the work was no longer materially contributing to any incapacity for work or need for treatment services. If the plaintiff’s reported symptoms and his presentation are genuine he has no work capacity. If they are feigned then he has no disorder and is fit for pre-injury or alternative duties.[56]
[55] DCB 46
[56] DCB 46 & 47
111 I am satisfied that Mr Saad has deliberately overstated the consequences of his psychiatric injury. The surveillance material does illustrate that the plaintiff is capable of interacting socially with others, walking freely without a limp and also has an ability to drive his car for greater than that he says, all those factors point towards him exaggerating his ongoing symptoms.
112 I find that there is a disjunction between the severity of the plaintiff’s reported symptoms and what is demonstrated on the surveillance material.
Findings – psychiatric injury
113 I am satisfied that Mr Saad has suffered a compensable injury following the incident namely, a mental or psychological disorder that can be characterised either as post traumatic neurosis to a moderate degree with anxiety and depressed mood or post traumatic stress disorder and or adjustment disorder.
114 I have regard to the treatment that Dr Lewis provides being supportive therapy consisting of 15 minute consultations every month or so and also the low dose of medication prescribed. He has been treating him in this manner for many years.
115 Dr Lewis’s diagnosis and expressed opinion primarily relies on what the plaintiff reports to him and to an extent upon his own observations. Any evidence supporting the plaintiff’s claim in this regard is constituted by his unsupported evidence which I have found to be not credible or reliable.
116 Section 134AB(38)(d) requires the making of a comparison and a judgement that the consequences of mental or behavioural disturbance or disorder could be fairly described as being more than serious to the extent of being severe.
117 Overall, given that I am not satisfied that Mr Saad’s evidence is reliable or credible and that he has exaggerated the consequences of his injury taken with the modest level of treatment he receives from Dr Lewis I am unable to make a finding in his favour concerning the pain and suffering consequences of the psychiatric injury.
118 Further I do not consider Mr Saad’s psychiatric condition precludes him from being able to perform any of the unskilled employment duties such as that referred to by Dr Yong, Mr Hart, Mr Jones and Dr Kostos or indeed a return to his pre-injury duties.
119 Since September 2005 there have been no attempts made by the plaintiff to return to work. He has been out of the workforce for almost five years and has not undertaken any retraining or attempted any further attempts at rehabilitation apart from the earlier functional rehabilitation course that he was exited from on 22 April 2006 due to non-attendance and non compliance.[57]
[57] DCB 104120 Mr Saad has not discharge the onus of proving his inability to be re-trained or rehabilitated or to undertake suitable employment or any employment and the extent of such inability. He has neither established that he had a loss of earning capacity of 40 per cent or more and he has failed to establish that he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more for the reasons already stated.
121 I am satisfied that Mr Saad is fit for his pre-injury duties or other suitable duties as previously described and that his psychiatric injury would not preclude him from employment.
122 Whilst I am satisfied, on the basis of the psychiatric evidence, that Mr Saad is suffering from some level of depression and anxiety or an adjustment disorder, I am not satisfied, on the balance of probabilities, that his mental disorder can be characterised as being more than serious to the extent of being severe in relation to the loss of earning capacity consequences thereof to him.
123 Mr Saad has not established that his mental disorder is severe by reference to loss of earning capacity consequences thereof, that is, when judged by comparison with other cases in the range of possible mental disorders. [58]
[58] s134AB(38)(d) of the Act124 Therefore Mr Saad’s application is dismissed.
Saad v C & M Brick Pty Ltd
EXHIBIT LIST
Number and
| Identifying Mark | Short Description of Exhibit | Date | Plaintiff/ |
| on Exhibit | Tendered | Defence |
Photocopy of the box of Panadeine Forte tablets Defendant
1 prescribed for Mr Saad 1/06/10 Extract of clinical notes Northern Hospital
1/06/10 Defendant 2 including the report of the X Ray of the left ankle and foot
Video surveillance tapes various dates 1/06/10 Defendant 3 20/09/2006,11/06/08,11/08/08,25/08/09 & 5/5/10
Letter from Rennick Briggs to Dr Lewis dated 19 2/06/10 Defendant 4 June 2008
WorkCover Worker’s Claim Form & Employer 2/06/10 Defendant 5 Claim Report both dated 13 May 2005
Defendant’s Medical Reports including; 2/06/10 Defendant 6 Ms J McKenzie dated 18 November 2005;
Prof K Myers dated 28 July 2005; Dr Yong dated 14 October 2005; Mr P Battlay dated 14 July 2006; Dr L Walton dated 14 July 2006; Dr A Jager dated 1 October 2006; 15 November
2006; 19 May 2007; 12 October 2008
Mr C Jones dated 1 September 2008;
Dr T Kostos dated 26 February 2010
NES Vocational Assessment Report dated 29 2/06/10 Defendant 7 October 2008
Summary of the Plaintiff’s Tax Returns 2/06/10 Defendant 8
Clinical notes of Dr Norman Lewis dated 21 2/06/10 Defendant 9 September 2006 to12 November 2009
Curriculum vitae of Dr Norman Lewis, 2/06/10 Plaintiff P1 psychiatrist
Plaintiff’s medical reports including; 2/06/10 Plaintiff P2 Affidavit of the Plaintiff sworn 4 February 2009;
Plaintiff’s medical reports including;
MRI Left foot and ankle dated 17 May 2005;
CT scan left foot dated 18 May 2005;
MRI scan dated 21 September 2005;
Bone Scan dated 22 September 2005;
Mr Gul Keng dated 7 November 2005; 3 April
2006; 3 July 2006;
Dr Norman Lewis dated 30 June 2006; 23
August 2006; 3 October 2008; 18 December
2008; 3 March 2009; 28 January 2010Dr D C Burgin dated 23 June 2006; 10 January
2009; 28 January 2010;
Dr Leonard Rose dated 9 July 2008;
Dr Michael Epstein dated 18 August 2007; 21
January 2010
Extract of the clinical records of the Northern 2/06/10 Plaintiff P3 Hospital records of 9 August 2005
Report of Dr Littlejohn dated 23 December 2009 2/06/10 Plaintiff P4
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