Sahin v Greglea Pty Limited (trading as Mildura Tree Services)
[2015] VCC 784
•17 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03757
| BULLENT SAHIN | Plaintiff |
| v | |
| GREGLEA PTY LIMITED (trading as MIDURA TREE SERVICES) | First Defendant |
| and | |
| ALTUS LABOUR HIRE PTY LTD | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 26 and 27 May 2015 | |
DATE OF JUDGMENT: | 17 June 2015 | |
CASE MAY BE CITED AS: | Sahin v Greglea Pty Limited (trading as Mildura Tree Services) & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 784 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – chronic pain syndrome- impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Meadows v Lichmore Pty Ltd [2013] VSCA 201; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491
Judgment: Applications dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 9 June 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
4 The body function relied upon in this application is the lumbar spine. There was also an application in relation to psychiatric impairment.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
11 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).
[3](supra)
12 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
18 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
19 The plaintiff is presently aged thirty seven, having been born in Turkey in January 1978. He came to Australia in 1980. He is single, with no dependents.
20 The plaintiff was educated to Year 10. His reading and writing are poor and he needs assistance with writing and spelling but understands enough English to get by. He has not had any formal education since leaving school and he has only ever worked in unskilled general labouring type work.
21 The plaintiff could not recall attending the Mildura Base Hospital (“MBH”) in March 2003 complaining of lower back due to a car accident two years earlier.[7]
[7]Transcript “T” 31
22 The plaintiff agreed in February 2003, he had had injuries to his face, left knee and shoulder as the result of an assault, and he had treatment at MBH.[8]
[8]T32
23 The plaintiff deposed that over many years, he has had casual part-time and full-time work with the defendant labour-hire company doing work including forklift driving, general labouring, landscaping, working on grape blocks and general building maintenance. He did that type of work for eighteen or nineteen years.
24 When the plaintiff told vocational assessor, Mr Hartley, that he was earning $800 to $1,200 net per week, sometimes $2,100 prior to the said date, he was referring to the wages he earned whilst working at SDS Beverages, a job arranged by the defendant.[9] The plaintiff agreed that in 2007 he earned $24,000 in that role.[10]
[9]T13
[10]T14
25 The plaintiff did not want to leave SDS but there was a bit of an altercation which involved the police. He was sacked after he was wrongly accused of something. They then wanted him back, but he did not want to go back and he just had to leave.[11]
[11]T20
26 The plaintiff then returned to casual work with the defendant. The hours he worked varied. He was basically casual: working different hours, different days.[12] The plaintiff agreed that in the year leading up to the said date, he worked about six or seven hours a week.[13]
[12]T20
[13]T17 – Wage records from 3 May 2010 to the said date set out the plaintiff worked hours ranging from 3 to 22 hours per week
27 Whilst the plaintiff worked for the defendant prior to the said date, he was receiving DSS Newstart benefits and working the amount of hours he was able without affecting his pension.[14] This was not part of the “Work for the Dole” scheme.[15] In that period, the plaintiff did whatever work he could get. He tried to get more work with the defendant and he advised DSS how much he was earning.[16]
[14]T16
[15]T18
[16]T19
28 The plaintiff agreed he lost his licence for three years for .05 in January 2009.[17] Thereafter, his mother drove him to work.[18]
[17]BAC .096 4 February 2009
[18]T52
29 On the said date, the plaintiff was assigned to Mildura Tree Services working in a team on the Sturt Highway, Euston. It was the first day on the job. He was to be paid $22 an hour for a 38‑hour week.[19]
[19]T15
30 A co-worker using a chain saw felled a tree, which struck the plaintiff, knocking him to the ground (“the incident”). The plaintiff was hit by branches on his left side and knocked to the ground.[20] He thought he might have lost consciousness whilst he was on the ground. He had left ankle and foot pain and pain in the back and groin.
[20]T25
31 The plaintiff tried to keep working but could not because of worsening pain. The following day, he attended MBH. There, he had x‑rays, his left ankle and foot were strapped and he was prescribed medication. Treatment at the MBH was focussed more on the plaintiff’s feet than his back.[21]
[21]T26
32 Three or four days after attending the MBH, the plaintiff attended Mr Huckson, physiotherapist. Over the following four or five weeks, the plaintiff received treatment for his ankle only.[22]
[22]T29
33 The plaintiff also attended his general practitioner, Dr Jago. The plaintiff told both Dr Jago and Mr Huckson of ongoing pain and restricted back movement.[23]
[23]T28
34 The plaintiff remained off work and lodged a WorkCover Claim for Compensation, which was accepted. He confirmed he signed the Worker’s Claim Form but he did not complete it.[24] He denied he instructed “left ankle” be put in the injury section of the form.[25]
[24]T21
[25]T23
35 In August 2011, the plaintiff returned to work on a plan, but struggled because of ongoing unpredictable back pain. His duties then involved driving and operating a ride-on lawnmower, but those tasks only made his back worse.
36 Later, the plaintiff’s general practitioner certified him fit for restricted duties but the defendant struggled to offer suitable work. The plaintiff could not do work such as moving and stacking boxes, painting, tree lopping and general gardening, landscaping and fencing work, so he remained off work.
37 In its report of 23 August 2011, IPAR noted that the plaintiff was extremely motivated to return to work, and he was over-zealous to return to pre-injury hours.[26]
[26]T72
38 Initially on his return to work, the plaintiff worked about two hours, two days a week.[27] He was sent to his boss’s house (Cross family) to do some landscaping. He had problems riding the lawnmower. He did not think he lasted even a week working for the Cross family and half of the hours they sent him home anyway.[28]
[27]T35
[28]T38
39 The plaintiff denied he worked until December 2011. He hardly worked at all, and not until 12 December 2011 as the wage records indicated. The plaintiff agreed he was being certified fit to work 8 hours per week by Dr Jago in the latter part of 2011; however, the plaintiff did not work.[29]
[29]T38
40 IPAR suggested the four jobs set out in its report. The plaintiff did not apply for any of the jobs because he “did not have the peace of mind” and he did not speak to any of the employers suggested.[30]
[30]T36-37
41 The plaintiff denied he did not have motivation to return to work because of the amount of weekly payments he was receiving. He agreed he was getting more than he had earned previously.
42 It is just killing the plaintiff, not working full time since 2012.[31]
[31]T48
43 The plaintiff has not applied for any work since the work with the Cross family.[32] He confirmed that the defendant had no further work available and also ceased trading.[33] The plaintiff did not know if the defendant had other jobs besides painting the Cross home.[34]
[32]T35
[33]T69
[34]T70
44 By letter dated 16 May 2012, CGU advised the plaintiff that it was unable to offer a return to work as the defendant had ceased trading. The plaintiff was advised IPAR Rehabilitation had been engaged to help him in terms of further employment.
45 The plaintiff had ongoing difficulties and pain with day-to-day activities and very restricted back movement.
46 Eventually, the plaintiff was referred for an x‑ray and CT scan in December 2011 and sent to a neurosurgeon, Mr Paul Smith, in Melbourne. The injection he recommended did not help a bit, and made it worse.[35]
[35]T41
47 The plaintiff deposed in February 2014 that, since the incident, he had ongoing unpredictable and often severe back pain and pain and altered sensation in his left leg and some neck soreness.
48 Mr Smith arranged a further MRI scan. He advised surgery would not help the plaintiff but he should have an injection to help relieve pain and symptoms.
49 The plaintiff was no longer capable of doing any work he had done in the past because of unpredictable back and left leg pain and, at times, neck pain. He received weekly payments of compensation until they were ceased in mid-2014.
50 The plaintiff agreed he received weekly payments of $700 to $800 a week, and that his previous earnings were pretty low.[36]
[36]T34
51 The plaintiff confirmed when he was getting Newstart and working with the defendant, he was receiving about the same money as he currently receives on the Disability Pension of $840 a fortnight.
52 The plaintiff had regular physiotherapy and his medication, including Tramadol.
53 The plaintiff’s condition was not improving. He became very worried and despaired to the point he felt life was not worth living because of his ongoing severe back and left leg symptoms. Accordingly, in June 2012, he was referred to a psychologist, Mr Gerald Purchase, whom he saw over a number of months.[37]
[37]T44
54 The plaintiff was not too sure whether Mr Purchase was very keen for him to return to work with restrictions, or that Dr Jago had a similar view in mid 2012.[38]
[38]T45
55 The plaintiff was very anxious, nervous and worried about his chronic ongoing problems. Conservative treatment had failed to provide him with any ongoing relief from pain and symptoms. He last had physiotherapy from Mr Huckson at Gecko Physiotherapy last year.[39]
[39]T43-44
56 The plaintiff was referred to another neurosurgeon, Mr Poonnoose, whom he saw in Adelaide in January 2013. Mr Poonnoose told the plaintiff surgery would not help and he should undergo pain management and rehabilitation.
57 The plaintiff agreed he went to MBH in April 2012 complaining of a fall three weeks ago when he injured his left fifth finger. The fall worsened his back pain and he was nearly crippled.[40] There was an altercation with the police in March 2013 when the plaintiff was put on the ground. This incident made his back a bit worse. He had to go to hospital, and he was given an injection.[41]
[40]T61
[41]T63
58 The plaintiff continues to suffer from ongoing back pain and pain down both legs, especially the left and in the groin. He has constant back pain. Frequently he has sudden acute attacks or flare-ups which are unpredictable and can occur when moving his back. His main problem is ongoing fluctuating back pain, the severity of which is unpredictable.
59 The plaintiff described his current pain as in his lumbar spine into his groin and travelling from about shoulder all the way down to his ankle. His left side is numb. He confirmed that when examined by Dr Elder, he could not feel a pinprick.[42]
[42]T64-66
60 The plaintiff’s back movements are guarded. He is cautious when bending, stretching, twisting or doing tasks involving lifting, carrying or manhandling moderate weights. Activities involving these movements can increase his back pain. Prolonged postures or tasks requiring him to bend, twist or flex his back cause increased pain and as a result, his day-to-day activities are very limited.
61 The plaintiff continues to use prescribed medication. In early 2014, he was prescribed Endone when he attended a pain management program at MBH. It just gave him relief, and did not help.[43]
[43]T42
62 All the medication just does not bring the plaintiff up for the day and he wants to stop it. He now takes Tramadol, 200, and Targin. He has finished Lyrica, which made him a bit sick. Endone destroyed him.[44]
[44]T48
63 The plaintiff manages his back and leg symptoms, especially left leg symptoms, with walking, home-based exercises and avoiding aggravating tasks.
64 The plaintiff is no longer capable of manual labouring-type work which is the only work he has ever done in the past. He cannot think of a job he could now do physically. He believes he will require assistance and retraining to help improve his ability to get work which is suitable.
65 The plaintiff could not remember discussing his capacity for work in mid 2014.[45]
[45]T75
66 The plaintiff was read certificates from Dr Jebron in July and August 2014 where she certified him fit for modified duties with restrictions on sitting, standing, driving and lifting. He did not remember those certificates or signing them.[46]
[46]T40
67 In terms of retraining, the plaintiff would need regrouping to get back to normal. He described “I got no feelings, got nothing. I could be sitting on a toilet all day maybe, I don’t know, just the way it is.”[47]
[47]T47
68 The plaintiff could not work as a console operator because he has no control over his pain. He snaps. He is not in a good position to go anywhere.[48] He is a liability. No one is going to employ him; he has already tried. He has no income.[49]
[48]T68
[49]T69
69 When it was suggested that the plaintiff was resistant to attempts to go back to work, he mentioned his good record at SDS.[50]
[50]T49
Activities
70 Emotionally and financially, things have been very difficult for the plaintiff. He is unable to enjoy many of the social and recreational activities he enjoyed in the past. He is withdrawn, lethargic and believes his memory and concentration have been affected.
71 The plaintiff deposed he enjoyed exercising at the gym for many years. He still goes, because the exercise helps his back, but he is limited in what he can do because of back pain.
72 The plaintiff last went to the gym about a year ago. He has some gym gear at home.[51]
[51]T67
73 For many years, the plaintiff enjoyed riding motorbikes on a regular basis, often in the open country. The plaintiff has been interested in motorbikes for a long time, and still owns one that he has had for fifteen years. He probably rode it last two months before the accident, and he was painting it. As soon as he jumps on it, if he tries to, he cannot put his weight on his left side.
74 Previously, the plaintiff enjoyed fishing – on riverbanks at the loch and from boats. He is now very restricted in his ability to do those activities. He has not been fishing since the injury.
75 The plaintiff tries to keep a handful of friends and goes to see them, and he has just opened Facebook. He visits them, and they come over.[52]
[52]T50
76 Both his injury to his back, its ongoing consequences and also mental and emotional problems have a marked effect on the plaintiff’s day to day life and capacity to work.
Taxation Summary
Financial Year Ending Amount 2007 $24,216.00 2008 $921.00 2009 $5,637.00 2010 $2,267.00 2011 $3,308.00
The Plaintiff’s medical evidence
Investigations
77 The plaintiff had an x‑ray of his lumbar spine, pelvis and hips on 9 November 2011.
78 It was reported that alignment of the lumbar spine was normal. There was minor narrowing of L4‑5 and L5-S1 disc. The pedicles were intact and there was no fracture, pars defect or destructive bone lesion. There was no significant facet joint arthropathy. The hip joint space was preserved and there was no fracture or destructive lesion seen.
79 The plaintiff had a CT scan of his lumbar spine on 6 December 2011.
80 It was reported there was a small right posterolateral L4-5 and posterior central L5-S1 disc protrusion. The L4-5 disc protrusion caused minimal mass effect on the right L5 nerve root.
81 There was an MRI scan of the lumbar spine of 13 January 2012.
82 It was reported there was a small right posterolateral L4-5 disc protrusion. There was a small posterior central L5-S1 disc protrusion. There was no significant mass effect. The annular tear at L4-5 was well demonstrated. There had been no significant change in appearance since the CT scan of 5 December 2012.
83 There was an MRI scan of the cervical and thoracic spine on 31 January 2012. It was reported that there was multilevel degenerative spondylosis of the upper and mid cervical spine, severe bilateral neural exit foraminal stenosis demonstrated at C4-5 and C5-6 and moderate right neural exit foraminal stenosis at C6-7. There was no neural compressive pathology of the thoracic spine and no MRI demonstrable cause identified to account for the plaintiff’s presented complaint.
Treaters
84 The plaintiff attended MBH the day after the incident complaining of a painful left leg and lower back from a falling tree.
85 The plaintiff attended his general practitioner, Dr Jago, on 17 June 2011 complaining that eight days ago, a tree struck his back. He was then on crutches.
86 On 7 October 2011, Dr Jago noted the plaintiff was working 2 hours, four days a week as per a four-week program with modified duties to the end of October. The plaintiff was working similar hours on 7 November 2011 when Dr Jago noted problems with the plaintiff’s back. It appears from the notes of 1 December 2011 the plaintiff was still working at that time. A lumbar CT scan was arranged later that month.
87 Dr Jago reported twice in 2012 and most recently on 18 February 2013.
88 Dr Jago diagnosed lumbar spine disc disease, noting the findings of a small left posterolateral disc protrusion with underlying annular tear at L4-5 and a small posterior central disc protrusion plus probable central annular tear at L5-S1, a twisted left ankle and also depression. He thought the injuries were consistent with the incident.
89 In June 2012, Dr Jago thought it appropriate to try non heavy and non-stressful work, noting that the plaintiff was unable to cope with digging or lifting. Retraining was appropriate if undertaking the suggested jobs of nursery assistant, landscape gardener, sales assistant or machine operator.
90 As of July 2012, Dr Jago thought the plaintiff should restrict bending, lifting, twisting and prolonged sitting or standing. In theory, the plaintiff could try part time, two hours a day, light duties with a 10-kilogram lifting limit, and he would need rest breaks. Dr Jago did not expect these restrictions to be permanent. He thought the plaintiff would benefit from ongoing physiotherapy and psychological counselling, certainly for several months.
91 Dr Jago noted the plaintiff had trouble coping with his pain and had an appointment to attend the Pain Management Clinic at MBH starting in July 2012. He noted the plaintiff’s referral to Mr Smith, who recommended conservative treatment.
92 By November 2012, the plaintiff’s condition had not changed much. He was attending the Pain Management Clinic and his medication had been changed. He was more satisfied with his pain control and reduced side effects, in particular mental confusion.
93 Dr Jago provided a comprehensive general practitioner report of February 2013. At that stage, he was not certain when the plaintiff would be fit to undertake suitable paid work.
94 Dr Jago thought the plaintiff’s activities were limited by pain in multiple sites, left half of the body, worst left thigh anteriorly. He noted the MRI scan findings. He thought the neck pathology may limit overhead work, otherwise the plaintiff would be capable of retraining to cope with light manual work but due to recent relative inactivity and general unfitness, he would not be confident to do so until more physiotherapy and home exercises.
95 Dr Jago certified the plaintiff unfit for all work from 6 April 2013 to December 2013.
96 Mr Paul Smith, neurosurgeon, saw the plaintiff on 31 January 2012 and re-examined him on 1 March 2012 with his repeat MRI imaging.
97 Mr Smith felt the plaintiff was suffering, at least to some extent, discogenic back pain, and that may have been contributed to by the incident. However, it was difficult to be sure the L4-5 and L5-S1 changes were a result of the injury. He thought they may have been longstanding and the incident may have led to an aggravation. He thought overall, the plaintiff’s pattern seemed to be one at least contributed to by discogenic pain but not entirely explained by it.
98 Mr Smith provided reassurance and a request for an epidural steroid injection but would not recommend surgery.
99 Mr Smith thought it not possible to know whether all the symptomatology was contributed to by the lumbar changes and it was not possible to know how those changes were contributed to by the incident. He thought it entirely possible, however, the incident did contribute to the symptoms the plaintiff suffered by aggravating those changes.
100 Mr Smith thought it difficult to determine then the plaintiff’s present and future capacity for work, but gradual improvement and therefore a capacity to return to work over months was likely. However, heavy physical work should be avoided initially.
101 Mr Smith then thought overall prognosis for improvement from discogenic back pain was quite good over a one to two-year period. Other than the injection, he would not recommended other treatments other than physiotherapy and walking.
102 Mr Prabhu, anaesthetist, pain management, saw the plaintiff on referral from Dr Jago in December 2012.
103 The plaintiff then described his back pain as 8 to 9 out of 10, radiating to his left foot, and pins and needles in his left lower limb. He had a limited functional capacity, was able to walk for 15 minutes and not able to sit for longer than 30 minutes. He had a poor sleep pattern.
104 The plaintiff was then taking Tramadol but it made him very nauseous, Panadol Osteo and Lexapro – which he stopped because it did not feel right. He was then having weekly physiotherapy and did regular walking in the water.
105 On examination, there was significant fear avoidance behaviour. The plaintiff dragged his feet on the left. He had severe limitation of flexion and extension of the lower back. His back muscles were stiff on palpation. There was motor weakness of L1, L3 and L5-S1. He could not toe or heel walk. There was hypoesthesia over many dermatomes, L1 to S1 on the left, and straight leg raising was negative.
106 Mr Prabhu thought there was mechanical low back pain precipitated by trauma and moderate to severe anxiety and depression. He noted multiple dermatomal levels affected and the plaintiff had clinical features of genitofemoral neuralgia.
107 The plan was to start Endep, continue regular hydrotherapy, decrease smoking, and seek a second neurological opinion in view of multiple dermatomal involvement. He also mentioned an epidural and a genitofemoral nerve block. It was noted the plaintiff would like to try Endep for a few weeks and advise as to its success. He thought the plaintiff would benefit from a psychiatric opinion to target his anxiety and depression.
108 Mr Gerald Purchase, psychologist, saw the plaintiff on eight occasions following referral from Dr Jago in June 2012.
109 Mr Purchase diagnosed a Pain Disorder associated with both psychological factors and a general medical condition.
110 Mr Purchase treated the plaintiff with techniques specifically aimed at helping him manage his anxiety, depression and pain. He noted it quickly became apparent there was an area of great confusion for the plaintiff, having initially been advised to undergo major surgery, of which he was terrified, and then when he came round to that suggestion, because his pain did not improve, when he discussed it with his doctors, he was told surgery was not an option.
111 Mr Purchase noted however, Dr Jago reported that surgery had never been an option.
112 When Mr Purchase last saw the plaintiff in September 2012, the plaintiff advised he had seen a number of specialists and there seemed to be a significant difference between what they said to him when examined and their written reports. He found it particularly puzzling that he told various doctors about complete numbness in various areas but that seemed to go unacknowledged.
113 Mr Purchase thought the plaintiff’s injuries were consistent with the incident. He noted from a purely psychological point of view, the plaintiff would love to be able to return to work and doing so would clearly be in his interests but his ability to do so was ultimately a medical decision.
114 The plaintiff continued to report high levels of continuous pain that got in the way of almost everything. He ate and slept poorly, struggled with labile moods, moved with great difficulty and seldom left home. He sat and walked in a guarded manner and appeared in pain.
115 Mr Purchase thought if those observations were accurate, it was difficult to imagine how the plaintiff would be able to hold down any sort of work.
116 Mr Purchase’s impression was the plaintiff needed a definitive medical diagnosis without which it was impossible for him to live in the present or plan for the future. He believed further psychological treatment was necessary.
117 Mr Poonnoose, neurosurgeon, saw the plaintiff in January 2013.
118 On examination, the plaintiff had normal tone and power in all four limbs with the sensory examination being largely normal. Gait was antalgic. The plaintiff was unwilling to bend his knee while walking.
119 Having seen the MRI scans of the cervical and thoracic spine, Mr Poonnoose did not find any surgical pathology that could explain all the plaintiff’s symptoms. The MRI scan of the lumbar spine was not very suggestive of a surgical pathology that could explain the symptoms.
120 Mr Poonnoose concluded there was no clinical evidence of neural compression at any point, and that was substantiated with an MRI scan. There were degenerative changes seen which were to be expected for the plaintiff’s age.
121 Mr Poonnoose did not believe there was a surgical pathology there and he would strongly recommend against surgery. He hoped that was a reasonable statement for Dr Jago to carry on with the plaintiff’s care. He thought it would be reasonable also to consider the role of a pain physician in the process of rehabilitating the plaintiff.
122 Mr Huckson, physiotherapist at Sunraysia Physiotherapy Centre, provided a treating health professional questionnaire in April 2012 and reported on 3 June that year.
123 The plaintiff first started treatment with Mr Huckson in June 2011, presenting with left foot and ankle pain. He first mentioned worsening left side low back pain on 26 August 2011, together with left groin and buttock pain.
124 On 30 May 2012, the plaintiff reported he had whole left leg numbness since the accident.
125 Mr Huckson thought the plaintiff sustained a soft tissue injury to his low back as result of the incident but at the time, the left being more symptomatic, created the greater functional problem.
126 The plaintiff’s spinal problems had later dominated and increased in intensity. There was a compensatory gait pattern. Mr Huckson noted the return to work program since suspended was dominated by weight bearing activity which intensified the low back symptoms and also caused an increase of cervicothoracic pain and stiffness, plus assisted in the continuation of the left ankle/foot stiffness.
127 Mr Huckson thought there were signs of post-traumatic stress, with the plaintiff verbalising, on a regular basis, the events of the day of the incident, and he continued to be understandably upset how his life had changed since.
128 In his quest to improve, the plaintiff tended to overdo his exercises in an over compensated manner and that, unfortunately, caused further dysfunction.
129 Mr Huckson noted the plaintiff’s anxiety and fear had further intensified since seeing a specialist in Melbourne, particularly with talk of surgery. According to the plaintiff, his insurance company was putting on some pressure for surgery which Mr Huckson thought was also aggravating the plaintiff’s physical problems.
130 Mr Huckson noted the MRI scan of January 2012 and the epidural injection thereafter.
131 Mr Huckson noted the plaintiff’s symptoms were on the left side while the MRI scan changes were on the right. Mr Huckson thought that was entirely plausible, particularly in light of what he had already mentioned. Due to the left versus right issue, he had contacted imaging, who confirmed the findings of the MRI scan.
132 On the most recent appointment in May 2012, the plaintiff continued to show signs of significant psychological stress and reported left-sided low back pain and stiffness aggravated by bending, twisting and prolonged postures. He continued to report left foot pain on weight bearing. He was very pain focused.
133 Mr Huckson thought, primarily due to the plaintiff’s psychological state, an operation was not appropriate and that his current attitudes to pain and exercise, functional activities could very well be a disaster in the post-operative period. He thought the plaintiff had been overloaded with many options which was, unfortunately, the way with WorkSafe, and that had been detrimental to his recovery.
134 Mr Huckson strongly recommended the plaintiff have the services of a psychologist for counselling, noting the plaintiff was not endowed with appropriate coping strategies.
135 Mr Huckson thought it was unfortunate the condition was now chronic and the plaintiff required psychological and behavioural therapy to assist him.
136 Mr Huckson did not believe the plaintiff was fit for unrestricted work for physical and psychological reasons and he would need to confer with the plaintiff’s treaters and work rehabilitation provider prior to recommending a return to restricted duties to start with, with two to three days, no more than two hours a week.
137 The progress would be slow in the future and it may be possible that the plaintiff may not return to his pre-injury work on a full-time basis. He noted the plaintiff needed to be retrained.
138 At that stage, Mr Huckson thought the injuries had significantly reduced the plaintiff’s enjoyment of life. The stress related to the injury and subsequent events had also exacerbated his physical problems.
139 Dr Jebron, in Merbein, first saw the plaintiff on 4 March 2014. She noted the plaintiff was in chronic pain and currently on Tramadol, Amitriptyline and Targin. The plaintiff felt drowsy while on most medication and he was having weekly physiotherapy with Gecko Physiotherapy. He complained of left leg weakness and sensation alteration.
140 Dr Jebron wrote to CGU on 18 July 2014.
141 Dr Jebron noted the plaintiff reported suffering injuries to his left ankle and lower back when a tree fell on the left side of his body at work three years ago.
142 Dr Jebron diagnosed chronic pain of the left side of the body and injuries to the left ankle and left lower back.
143 Dr Jebron noted investigations and previous treatment. She had available reports from two independent examiners dated 5 May 2014 and 10 June 2014 which stated the plaintiff had a capacity for modified duties.
144 Dr Jebron then discussed with the plaintiff his current physical capacity for modified duties on 2 July 2014 and gave a certificate on that date.
145 Current treatment included oral analgesia, Tramadol, Amitriptyline and Targin. That regime would require the plaintiff to present every two to three weeks for his regular prescriptions. He also attended physiotherapy and hydrotherapy weekly, as regularly as possible.
146 Recently, Dr Jebron also referred the plaintiff to a pain specialist via Pain Management Services facilitated by the Lower Murray Medicare Local.
147 Dr Jebron provided a Certificate of Capacity following examination on 2 July 2014. She noted the plaintiff was reported to have some physical capacity to do modified work by independent examiners. She thought he had a capacity for suitable employment from 8 July to 4 August 2014.
148 Dr Jebron noted the plaintiff was able to sit, stand up and walk for no longer than 30 minutes before exacerbation of pain. He was able to drive an automatic car with frequent stretch/rest. He was able to carry objects weighing up to one kilogram before heaving exacerbation of pain. He was unable to do bending.
149 Dr Jebron completed an Australian Super Permanent Incapacity Claim Form on 26 August 2014. She set out therein that the member’s permanent incapacity had been caused by working when a tree fell on the left side of his body, causing ongoing pain to his left side, shoulder, lower back and left leg.
150 Dr Jebron has prescribed Tramadol from March 2014 and Oxycodone from July 2014. Pregabalin has also been prescribed and, more recently, Gabapentin.
Medico-legal evidence
151 The plaintiff was examined by orthopaedic surgeon, Mr Kossmann, in December 2014.
152 On examination, the plaintiff walked with an antalgic gait. He was wearing an off-the-shelf elastic lumbar support brace. He was tender to palpation over his lumbar vertebrae and movement was restricted. He had a bilateral straight leg raise to 10 degrees and lower limb neurological examination was unremarkable.
153 Mr Kossmann diagnosed chronic lumbar back pain and suggested an MRI scan to assist with the diagnosis.
154 Mr Kossmann then thought the prognosis regarding the plaintiff’s lumbar back pain was unclear and difficult to determine without a lumbar MRI scan. He thought his prognosis may improve with a formal pain management program and with core strengthening such as Pilates.
155 Mr Kossmann thought the plaintiff’s condition may be consistent with the stated cause and there seemed to be a direct temporal and causal relationship between the incident and the onset of symptoms, noting that the plaintiff claimed he was asymptomatic prior thereto.
156 Mr Kossmann thought the plaintiff was unfit to return to his pre-injury employment as a manual labourer. Manual work necessitating repetitive lifting of heavy loads and repetitive bending was contraindicated. He thought the plaintiff was currently unfit for any work.
157 Mr Kossmann noted the plaintiff did not mention any cervical spine injury and was adamant his pain was in his lumbar spine and associated with pain affecting the left side of his body. He noted because of his pain the plaintiff had been unable to engage in hobbies including riding a motorbike and jet ski.
158 Mr Kossmann was provided with the January 2012 MRI scan and medical reports from Mr Duke, Mr Taubman and Mr Doherty.
159 Mr Kossmann confirmed a diagnosis of discogenic back pain on the basis of annular tear and small posterolateral L4-5 disc protrusion and small posterior count L5-S1 protrusion with no significant mass effect. He confirmed the causal relationship and his views as to manual labour and prognosis.
160 Mr Kossmann noted that the plaintiff’s complaints and clinical findings could be explained by the MRI scan findings and should he suffer from increasing pain issues in his lumbar spine, he would recommend a repeat MRI scan.
161 Mr Kossmann reported further on 21 May 2015, having been asked, in light of the 2012 MRI scan, whether there was an adequate organic basis for the plaintiff’s injury.
162 Confirming his examination findings, Mr Kossmann concluded he believed there was an adequate organic basis for the plaintiff’s injury.
163 Dr Shutz, psychiatrist, examined the plaintiff on 19 May 2015.
164 In terms of his mental health, the plaintiff reported he felt disturbed. He did not want anything and did not want to do anything. He only saw a handful of friends. He had changed as a person. He spent much of his day thinking about what happened to him.
165 The plaintiff felt angry, frustrated and sad much of the time. He was anxious and edgy. His appetite was variable, as was his concentration, and he denied any psychotic symptoms. He denied post-traumatic stress symptoms and frequent panic attacks.
166 In terms of treatment for his mental health, the plaintiff reported he saw a psychologist in 2012 but had not seen one since then and he did not feel it was really helpful and he did not see any point seeing the psychologist again.
167 The plaintiff reported he was on antidepressants in the period after his injury but not for some time. He did not want to be on them and he did not feel they were of any use.
168 The plaintiff denied any psychiatric history prior to the injury. His personality was “grouse”. He was always a comedian; he made people laugh and had a lot of friends.
169 On assessment, the plaintiff appeared to walk with difficulty and be in discomfort for much of the session. He could concentrate for an hour of the session. He had some warmth and rapport but generally a restricted affect. He was not overly tearful or anxious and his speech was normal. He could provide a reasonable history and appeared to be a reliable historian and had no gross cognitive deficits and reasonable insight and judgment.
170 The plaintiff thought his pain limited him and he would never be able to cope with work. He did not believe he would be able to learn to do a non-physical job and had always done manual labour. He was not sure how he would cope being around people due to his potential irritability.
171 Dr Shutz read reports from Dr Jago, Mr Smith, Mr Purchase, Mr Kossmann, Dr Athey, Dr Elder and Dr Kornan.
172 Dr Shutz concluded, as a result of his ongoing pain and disability, the plaintiff had developed a secondary psychological condition; namely, a Chronic Moderate Adjustment Disorder with Anxious and Depressed Mood.
173 The plaintiff described a range of symptoms consistent with a Chronic Adjustment Disorder, including frequent negative ruminations, tearfulness, lowered mood, loss of interest in previous activity, feelings of anger and frustration and loss of motivation. Dr Shutz thought it likely that the plaintiff’s lower mood further lowered his pain threshold and that set up a vicious cycle.
174 Dr Shutz thought the plaintiff’s ability to work was significantly impacted on by his psychological condition. His symptoms, together with issues with concentration, made it highly unlikely the plaintiff would ever be able to return to work or retrain successfully for the foreseeable future.
175 Dr Shutz noted that his diagnosis was consistent with that of Dr Kornan and Dr Athey.
176 Dr Shutz thought the plaintiff also most likely had a Pain Disorder associated with both psychological factors and a general medical condition, noting he intensely ruminated about his pain and devoted substantial energy to finding a treatment for it. He perceived himself as dysfunctional as a result of his pain. Dr Shutz noted the likely presence of the disorder did not in any way suggest conscious exaggeration of pain, as in malingering or a factitious disorder.
177 From a psychiatric perspective, Dr Shutz thought the plaintiff had no current capacity for work because of his limited education and work experience, his chronic pain, additional fears of re-injury, concentration difficulties, irritability, frustration and the need to remove himself from others.
178 The future capacity for work depended to a degree on the plaintiff’s physical prognosis. As long as he had pain and perceived disability, Dr Shutz thought the plaintiff would likely continue to manifest the same psychological difficulties and, as such, from a psychological perspective, would remain permanently incapable of sustained employment. Noting the plaintiff’s reluctance to have treatment, Dr Shutz was not sure if it would be of much benefit. He thought the plaintiff may have marginal improvement in pain and mood from the prescription of an antidepressant with pain-relieving properties, but he was not motivated to trial it. As such, overall, he believed diagnosis from a psychiatric perspective was quite guarded.
179 Taking into account the plaintiff’s psychiatric injury alone, Dr Shutz thought he had no realistic capacity to work on a reliable, permanent and sustainable basis.
180 Dr Slesenger, specialist occupational physician, saw the plaintiff in May 2015.
181 The plaintiff advised he had ongoing low back pain of 10 out of 10 radiating to the left leg of the same level. He also advised he had become depressed, anxious and short tempered.
182 The plaintiff was then taking Targin twice daily, and Tramadol, 200 milligrams, twice daily. In the past, he had prescribed Lyrica and Endone but had ceased those. He was having monthly physiotherapy and doing self-management exercises.
183 The plaintiff had a sitting and standing tolerance of up to 30 minutes and driving up to an hour. He was not able to bend, climb and perform any manual handling tasks.
184 On examination, the plaintiff became agitated while discussing the psychological aspects of his impairment. He was vague with regard to some of the dates and times of his treatments. His affect was normal and he appeared neat and kempt. The plaintiff walked with a mild left-sided limp and reduced weight bearing on the left side. He could not squat, and had difficulty climbing on and off the couch.
185 Dr Slesenger had available reports from Mr Kossmann, Dr Poonnoose, Mr Nye, Dr Athey, Dr Elder and Dr Kornan. He also had the January 2012 MRI scan of the lumbar, cervical and thoracic spine and the CT scan of the lumbar spine of December 2011.
186 Dr Slesenger noted the plaintiff presented with chronic upper back, lower back, and left ankle pain, and also with the psychological impairment. Clinical examination demonstrated restricted movement and some non-organic features, and there was also evidence of psychopathology.
187 Dr Slesenger noted the plaintiff’s limited education and trade skills.
188 Dr Slesenger diagnosed mechanical lower back pain, mechanical mid-back pain, soft tissue injury to the left ankle and a Chronic Pain Disorder and psychological impairment.
189 Dr Slesenger thought the initial impairment was due to the injury, after which the plaintiff developed a Chronic Pain Disorder.
190 Dr Slesenger noted the plaintiff’s use of medication may be affecting his fatigue levels, memory and concentration.
191 Based on the history, examination, review of documentation, the chronicity of symptoms, the plaintiff’s functional limitation, his work history and absence of transferrable skills, Dr Slesenger thought the plaintiff was unlikely to find work in a position for which he had the relevant expertise, skills and experience. He was also minded that given his current levels of pain, the plaintiff was unlikely to be able to attend work on a reliable, consistent and permanent basis.
192 Dr Slesenger thought the plaintiff’s prognosis was poor. He noted the plaintiff had been recommended to a pain clinic; however, his rural location would provide difficulty accessing multidisciplinary treatment. Given the chronicity of the plaintiff’s symptoms, he was not optimistic the plaintiff would see a significant improvement in his function. Whilst a pain program may assist him adapt to his disability, Dr Slesenger did not believe it would improve the plaintiff’s condition to the extent he could return to a manual role.
Vocational evidence
193 Paul Hartley from Vocational Directions carried out a vocational assessment, having interviewed the plaintiff on 20 May 2015.
194 The plaintiff advised his level of pain and disability had reportedly increased, such that he is in constant pain and highly restricted in all activities. He had become significantly depressed and very anxious.
195 The plaintiff currently attended Dr David for medications, management and certificates, as Dr Jago had retired. He had stopped physiotherapy the previous year and was not having any specialist follow-ups and had not seen a psychologist for a while.
196 The plaintiff advised his pain was constant. It was mainly in the lumbar spine, in the left side of the neck and down the left arm and down the left leg.
197 The plaintiff thought his unremitting pain, physical limitations and erratic sleep patterns would impact on his ability to undertake work, leading to unreliable attendance, poor performance and poor ability to remain in the workplace.
198 The plaintiff also reportedly developed incapacitating psychological and psychiatric symptoms as a result of his Chronic Pain Disorder.
199 Pre accident, the plaintiff described himself as being fit and active as a thirty-three-year-old single man, who enjoyed physical work and was very active in the soccer club and promoting soccer locally. He enjoyed riding his motorbike, as well as jet skiing, fishing and going to the gym, and doing up old cars. That equipment was now largely untouched. The plaintiff is very isolated and does not go out much, and had felt trapped for years.
200 IPAR had suggested roles as a nursery assistant, sales assistant, console operator and forklift driver. The plaintiff advised that he did not feel competent doing those jobs. They did not take into account his injury and restrictions, save for nursery assistant, for which he had no skill or experience.
201 Mr Hartley noted the plaintiff had a very limited employment experience, working only as an unskilled labourer since fifteen, although in a variety of industries. Due to his back injury and his physical limitation, his chronic pain and persistent psychological symptoms, Mr Hartley thought the plaintiff was left with very limited transferrable skills and none that, when combined, could immediately segue into a new job designation.
202 Mr Hartley was concerned the plaintiff may have a learning disability and it would be prudent to have him assessed by a specialist educational psychologist regarding any learning difficulties and to gain advice as how to best manage his future learning and training.
203 Mr Hartley noted medical reports from Dr Elder; Dr Jago; Mr Smith; Mr Purchase; Mr Poonnoose; Mr Huckson, his physiotherapist; Mr Kossmann; Mr Nye (July 2012); Dr Athey (September 2012) and Dr Kornan (July 2013).
204 Based on the medical opinion and the plaintiff’s presentation and self-reported tolerances, Mr Hartley thought the plaintiff could not currently attain or sustain the key performance indicators or fulfil the inherent duties of any job designation successfully due to his physical limitations, which also impacted his activities of daily living and quality of life. He considered the plaintiff would not be currently capable of attaining or sustaining suitable employment by virtue of his reported work-based injury and related physical restrictions. He would not be able to provide consistent attendance and performance.
205 Mr Hartley agreed the plaintiff had no work capacity on psychological grounds.
206 In summary, Mr Hartley believed it fanciful to imagine that an injured thirty-seven-year-old, poorly educated, technically challenged man, with a manual labouring background, who suffered chronic severe pain and had compromised concentration and focus, could complete any form of vocational training. He believed the plaintiff should be considered unsuited to retraining in the long term unless his diagnosed Chronic Pain Syndrome and his psychological symptoms showed an appreciable improvement.
207 Mr Hartley concluded the plaintiff was not fit for suitable duties and had no current work capacity and that would continue for the foreseeable future.
The Defendant’s medico-legal evidence
208 The plaintiff was examined by Mr Nye, neurosurgeon, in July 2012.
209 Mr Nye noted during the interview that the plaintiff was preoccupied with the incident details and inappropriate activities performed by co-workers at the time and OH&S issues.
210 The plaintiff reported neck pain, which extended inferiorly to the lower back. Left leg pain was described with whole limb involvement and sensory loss.
211 The plaintiff wore an elastic spinal support. Pain behaviour was evident on examination, with complaints of diffuse pain precipitated by all movements of the upper limb. There was no spasm. Cervical and lumbar movement was restricted.
212 The neurological examination revealed no upper limb weakness. Assessment was accompanied by claims of pain of a diffuse nature and notably all reflexes were present, brisk and symmetrical, and there was no sensory loss.
213 The plaintiff claimed a non-anatomical subjective impairment of pinprick affecting the whole of the left leg and extending to the abdomen, which was interpreted as functional.
214 Mr Nye had available the 2011 and 2012 investigations. He thought that there was radiological evidence of three-level lumbar disc degeneration with minor disc bulges at the two lower locations and degenerative change had been identified in the cervical region. He thought those findings were not associated with any neurological sequelae but aggravation consequent upon injury was acknowledged.
215 Mr Nye thought the response to treatment had not followed the usual pathway and that was a consequence of the development of a Chronic Pain Syndrome and he suspected associated adoption of a chronic invalid role. He suspected significant psychological issues, and notably an antidepressant was prescribed.
216 Mr Nye diagnosed aggravation of degenerative spinal disease consequent upon injury – complicated by psychological factors and non-organically determined aspects of presentation was significant.
217 From a purely physical point of view, Mr Nye thought there was potential for re-employment consistent with vocational assessments. However, presently, he considered the plaintiff incapacitated for all work. He predicted that the plaintiff would not be able to resume pre-injury duties or hours, a consequence of the physical requirements and identification of degenerative spinal disease. He then thought the plaintiff did not have a capacity for pre-injury duties.
218 Mr Nye noted some response to treatment had been disappointing and attributed to development of a Chronic Pain Syndrome. Mr Nye thought then that the prognosis appeared unfavourable and a multidisciplinary pain management was an appropriate therapeutic strategy.
219 Dr Athey, consultant psychiatrist, examined the plaintiff in September 2012.
220 The plaintiff advised he was never pain free and he was dependent largely on others for help. He had become very frustrated because of his ongoing pain. He had become angry, disillusioned, frustrated, depressed and anxious. He slept poorly and had given up all leisure activities.
221 The plaintiff complained of severe back pain, including pain in the high thoracic or lower cervical lumbar region, and pain in the left leg.
222 The plaintiff said excessively, that he felt let down and useless.
223 The plaintiff was then taking Lexapro and seeing a psychologist regularly.
224 On examination, the plaintiff moved with obvious difficulty and could only walk slowly with a stiff legged gait.
225 The plaintiff was preoccupied with the loss of his lifestyle and the fact that his pain appeared to prevent him from doing almost anything. His affect was a mixture of depression and anxiety. His perception of pain appeared to be within reasonable limits. His memory appeared to be intact and his concentration was basically normal, although he could be distracted when in pain or upset.
226 Dr Athey noted that as a result of his back injury, the plaintiff had not been able to return to work and had developed significant symptoms of both anxiety and depression secondary to the original injury. He believed that the plaintiff had developed a reactive depression otherwise known as an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
227 Dr Athey noted that he was strongly in favour of a proposal for the plaintiff to attend pain management.
228 Dr Athey thought that the Adjustment Disorder may impact on the plaintiff’s ability to work and that he would have impaired concentration, difficulty with decision making and he was quite drowsy which could, by itself, have significant impacts on OH&S.
229 Dr Athey thought that the plaintiff did not have a capacity for full pre-injury duties and hours at his current or alternative workplace. The expected duration was difficult to quantify in terms of time. He thought the plaintiff would probably remain depressed until he could find some way to return to the workplace despite his back injury or if it settled. He would anticipate the Adjustment Disorder would settle.
230 From a purely psychiatric point of view, Dr Athey thought that the plaintiff should continue his antidepressant medication and probably should have weekly counselling in view of his feelings of uselessness and anything that would help his pain, including physiotherapy.
231 Dr Athey noted that the plaintiff had difficulty undertaking activities of daily living and appeared to be dependent to some respect on his family. He thought it reasonable that the plaintiff continue psychological treatment for at least a further six months until he attended a pain unit where that would be included as part of a program. He noted, however, that the plaintiff did not see a great deal of benefit from that sort of treatment.
232 Dr Duke, psychiatrist, examined the plaintiff in July 2013. The plaintiff told him that his back was “dead”, he was full of pain. He could not bend or lift properly. He advised that the pain management plan was of no benefit.
233 Dr Duke was unsure why Tramal had been prescribed in the absence of pathophysiology.
234 On examination, the plaintiff had a grossly abnormal posture, both in the waiting room and on interview.
235 Dr Duke diagnosed undifferentiated somatoform disorder, noting the plaintiff continued to complain of a substantial number of symptoms.
236 Dr Duke then thought the plaintiff could not return to work in pre-injury duties and hours.
237 Dr Duke thought the plaintiff’s capacity for future work was unclear. He considered further efforts needed to be made to bring the plaintiff to an understanding of a lack of pathophysiology adequate to explain his current symptoms and further efforts made to induce him to undertake appropriate physical exercise and mobilisation.
238 Dr Duke thought the plaintiff had no current work capacity because of his psychosomatic condition. He considered a multidisciplinary pain management program to which the plaintiff adhered was the best practice for his management.
239 Mr Roth, consultant surgeon, examined the plaintiff in July 2013. The plaintiff then complained of neck pain and pain in the upper thoracic region of the spine and the region of the upper left trapezius muscle. There was also pain in the upper thoracic and lumbar regions of the spine, together with the left buttock and groin. Neurological examination was normal. There was restriction of lumbosacral and cervical movement and the plaintiff walked without a detectable limp.
240 Mr Roth had available all the investigations and concluded that the plaintiff sustained injury to his cervical and lumbar spine and left ankle and the incident precipitated symptoms from an aggravated pre-existing degenerative disease in the cervical and lumbar spine. The plaintiff sustained a soft tissue injury to his left ankle. He had also developed chronic pain following his injury.
241 Mr Roth thought that the plaintiff did not have a current work capacity and he remained incapacitated from working indefinitely.
242 Mr Roth reported again in 2013, having been provided with a number of documents which listed the left ankle as the initial injury and a delay in the reporting of any back problems.
243 In view of further information made available, he wished to change his earlier opinion. Mr Roth noted that the plaintiff did sustain a soft tissue injury to his left ankle but there was no evidence to indicate that he suffered an injury to his back in the incident. Furthermore, there was no evidence to indicate that he had sustained an injury to the cervical spine, as from the documentation which had been made available to him, there was no mention of any such injury.
244 Dr Elder, consultant in the speciality of occupational and environmental medicine, examined the plaintiff in July 2013.
245 The plaintiff then reported continuing pain in the left side of his body below his chin. He alleged that he was completely numb on the left side of his body and repeatedly stated, “I can put needles in” when describing how numb his body is.
246 The plaintiff’s presentation was clouded by significant abnormal illness behaviour. His presentation was inconsistent and there was significant non-organic presentation. The plaintiff walked with a bizarre straight-legged gait. He demonstrated no range of lumbar spine movement when formally examined and that was inconsistent with his ability to move onto the examination couch. It was a non-organic sensation affecting the whole of the left side of his body. Neurological examination of the lower extremities was normal objectively. Two centimetres of wasting was due to the abnormal gait.
247 Dr Elder thought the plaintiff appeared to have mechanical back pain with no clinical evidence of radiculopathy. He thought the plaintiff’s presentation was significantly clouded by abnormal illness behaviour. He carried out an AMA assessment.
248 Dr Paul Kornan, psychiatrist, examined the plaintiff on 9 July 2013.
249 The plaintiff complained of ongoing pain in the lower back every day which was “24/7”, and a burning type of pain.
250 The plaintiff spoke in a voice which was anxious and in which there was anxiety and depression. His mental faculties were somewhat variable. There was ongoing subjective distress, some anxiety and depression, and this raised tension levels.
251 Dr Kornan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and some features of traumatisation, specific phobia, fear of sudden major accident or injury and Pain Disorder with associated psychological factors.
252 Dr Kornan thought the plaintiff’s psychiatric ill health condition prevented him from working at that stage. He thought treatment by a psychologist could be useful for a period of time, and he thought the plaintiff’s psychiatric impairment could be stabilised.
253 Dr Taubman, consultant physician in general medicine, examined the plaintiff in May 2014.
254 The plaintiff described a burning sensation experienced over all the areas of the left lower limb, and his back condition was getting worse.
255 The plaintiff told Dr Taubman that he could walk for five minutes and then would take a break. He could drive for an hour.
256 On examination, the plaintiff was noted to have a number of varying gait patterns. There was some restriction of lumbar movement and no evidence of tenderness on palpitation and no evidence of spinal deformity. Light touch sensation was diminished over the whole left side.
257 Dr Taubman thought that the plaintiff suffered from degenerative cervical spondylosis, and degenerative disc disease of the lumbar spine contributed to by the injury.
258 Dr Taubman noted, however, that there were non work-related factors which impacted significantly on the plaintiff’s presentation; namely, that he was struck by a tree. The history to Dr Duke was that he was struck by a branch. The MBH records do not indicate a neck or spinal injury as a result of the incident. The plaintiff has left-sided sensory loss in the upper left limb and left lower limb which is not due to any identifiable organic condition. He has non-anatomic weakness of the muscle groups of the left leg.
259 The Claim Form mentioned the left ankle only. There was no treatment by the physiotherapist for back pain until about a year after the incident. The plaintiff had a variable gait which was not characteristic, and Mr Roth had noted, on 5 July 2013, that there was no detectable limp.
260 Dr Taubman thought, in relation to the accepted work-related condition, in his clinical opinion, the plaintiff was able to return to work on pre-injury duties and hours, and he had a current work capacity.
261 Dr Taubman thought the plaintiff was fit for light work which did not involve repetitive bending or lifting of weights exceeding 3 kilograms. Pushing and pulling restrictions needed to apply and the plaintiff should not be involved in any employment that involved prolonged periods of time in duties which required neck extension. He thought the best treatment was conservative, and he thought that the plaintiff had the physical capacity to participate in a vocational assessment and/or retraining.
262 In Dr Taubman’s view, the plaintiff was suitable for work as a nursery assistant. He did not think that the three other options were suitable. The plaintiff was fit for light duties or sedentary work, subject to the above restrictions, and he did not have a permanent incapacity for employment.
263 Dr Taubman thought that the plaintiff’s current treatment regime was in line with best practice.
264 Dr Taubman noted that the plaintiff presented with a number of symptoms that were considered to be of a functional origin. He had a variable gait pattern and non-anatomic neurological sign. He also complained of somatic symptoms which had no identifiable relationship to his workload and injury. He believed it would be possible for the plaintiff to transition to a self-management program under the care of his family doctor.
265 Associate Professor Doherty, consultant psychiatrist, examined the plaintiff in June 2014.
266 The plaintiff told him that since June 2011, his life had been “shit”. He had numbness along the left side and along his left forearm. The pain went down into his torso, into his leg and groin and down the back of his leg. The whole area was numb.
267 The plaintiff told Professor Doherty that he was generally not scared and frightened but he was fearful of having a surgical procedure. His memory and concentration were not too bad. His mood was bad and he was trying to keep a “good” face.
268 On mental state examination, the plaintiff presented as if in pain, with an anguished look and wince on his face, sitting on the edge of the chair. He had a number of pain-related behaviours and his conversation focused on his pain and fear of operation.
269 The plaintiff told Professor Doherty that his mood was tense and bad, although he kept a “good” face on.
270 The plaintiff’s affect was considered to be slightly anxious and mildly dysthymic. His affect had good reactivity and showed an appropriate range and it was congruent with his thoughts and conversation.
271 There were no obvious features of traumatisation at the time of the interview and examination. The plaintiff was aware, alert and in clear consciousness.
272 Professor Doherty thought that there had been some reported minor changes in the plaintiff’s mood; however, there appeared to be no clinically significant mood symptoms at interview that caused the plaintiff distress or significantly occupational social dysfunction. The giving of a psychiatric diagnosis related to mood. Thus, he did not think that the plaintiff had an Adjustment Disorder with or without a depressed or anxious mood, and he did not have a diagnosis of a Major Depressive Disorder.
273 Professor Doherty thought, however, that there was some evidence for a diagnosis of a Chronic Pain Disorder, noting the plaintiff had pain in various parts of his body which appeared not related to the injury sustained and in keeping with the known level of physical pathology. The plaintiff’s predominant preoccupation was with that of pain and that would appear to be made worse by his social and psychological functioning. He noted that the plaintiff was taking strong narcotic analgesic medication years after the claimed injury. He thought a diagnosis of Chronic Pain Disorder was not unreasonable.
274 Professor Doherty thought that the plaintiff’s prognosis from a psychiatric point of view was fair, noting he was reporting symptoms very unresponsive to treatment and still taking narcotic medication some years after the claimed injury. At interview, he was in a good mood and the risk was that the plaintiff would become entrenched in his sense of incapacity and the effect on his body of the incident.
275 Professor Doherty thought that the plaintiff did not require individual treatment by a psychiatrist or psychologist. He would not benefit from further individual sessions; however, pain management participation with a multidisciplinary worker may be of benefit.
276 Professor Doherty thought that the Chronic Pain Disorder was mild and did not incapacitate the plaintiff’s work. He noted that he had pain behaviours. He was also smiling, not in distress, calm and, in Professor Doherty’s opinion, there was some overstating of his functional impairments.
277 Professor Doherty concluded that the overall picture was that of a person with some fragilities on his personality who had suffered an injury at work in compensable circumstances and had not developed a Pain Syndrome out of keeping with the known pathology.
278 Professor Doherty thought that from a psychiatric point of view, the plaintiff could undertake the employment options set out in the IPAR NES Vocational Assessment Report of 15 June 2012. The psychiatric condition did not incapacitate the plaintiff and he would not be inconsistent or unreliable when undertaking suitable other employment options. He thought that the plaintiff had a capacity, from a psychiatric viewpoint, to undertake the necessary retraining and training associated with the employment options.
Vocational evidence
279 An employer visit report on 11 August 2011 detailed suggested jobs were painting malls, administration, and light gardening duties were recommended.
280 IPAR prepared an initial assessment report on 27 September 2011 with subsequent monthly reports until the program was suspended in late December and ceased in May 2012, as the defendant went into liquidation and was therefore unable to provide suitable duties.
281 In an NES Vocational Assessment Report compiled by IPAR on 2 June 2012 identified suitable employment options in order of priority were:
· Nursery assistant ($599 per week)
· Sales assistance ($1,087 per week)
· Console operator ($667 per week)
· Forklift driver ($983 per week).
Claim documentation
282 The Worker’s Claim Form signed on 21 July 2011 referred to injury to the left ankle. It was noted only a “tree branch was being cut at elevated level fell onto left foot/ankle – back”. The plaintiff was then being paid $22 an hour. His usual pre-tax weekly earnings were $836.00.
Overview
283 In opening, counsel for the plaintiff advised the clause (a) claim was not abandoned, as Mr Kossmann provided support for a physical diagnosis, although it was conceded he was the sole supporter of that view and that the other medical practitioners identified a Pain Syndrome or Adjustment Disorder.[53] Accordingly, the application was brought predominantly pursuant to clause (c).[54]
[53]T2
[54]T3
284 Having indicated after the completion of evidence that the clause (a) application was quite weak,[55] closing submissions by counsel for the plaintiff related to the clause (c) application only.
[55]T84
285 The issue for consideration therefore is whether the plaintiff suffers a severe psychiatric impairment, in terms of pain and suffering and loss of earning capacity.
286 Issues of causation were initially raised by counsel for the defendant, but when I indicated that was not the defendant’s best point,[56] that argument was taken no further.[57]
[56]T84
[57]T85
287 I am satisfied the plaintiff suffered a low back injury in the incident. Note was made of a back complaint at the MBH the following day, the first medical certificate contained a reference to left body and the Claim Form also noted the back. The physiotherapist was clearly in error when he reported treatment for the back commenced the year after the incident. Further, the 2011 IPAR Report noted an injury to the lower back.
288 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. [58] Further, by letter of 7 August 2013, CGU advised the plaintiff that liability had been accepted pursuant to s98C for lower back, left ankle and psychiatric condition relating to an injury on 9 June 2011.
[58]T8- payment for 130 weeks
289This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[59] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[59][2006] VSCA 171
290 Since the incident, the plaintiff has received treatment for his back from his general practitioners and physiotherapist, Mr Huckson.
291 Mr Smith, neurosurgeon, who saw the plaintiff twice in early 2012, diagnosing discogenic pain, thought that pain may have been contributed to by the incident, and he suggested conservative treatment. An injection administered by him made the plaintiff’s pain worse.
292 Mr Poonnoose, neurosurgeon, who saw the plaintiff once in January 2013, did not find any surgical pathology that could explain the plaintiff’s symptoms, and he suggested pain management.
293 The plaintiff attended Mr Prabhu for pain management in 2012. Whilst he diagnosed mechanical low back pain, Mr Prabhu thought there was significant fear avoidance behaviour. The plaintiff did not find this program particularly helpful. Recently, Dr Jebron also referred the plaintiff to a pain specialist via Pain Management Services facilitated by the Lower Murray Medicare Local.
294 The plaintiff has been prescribed a range of painkilling medication of varying strength but it has not been of any real assistance to him.
295 In my view, the plaintiff’s initial physical injury has been overwhelmed by a Chronic Pain Syndrome, and his lumbar condition as at the date of hearing lacks a substantial organic basis.[60] In these circumstances, the plaintiff’s pain cannot properly be categorised as falling within clause (a) as it is substantially psychogenic in its basis.[61]
[60]Meadows v Lichmore Pty Ltd [2013] VSCA 201
[61]West v Pac-Rim Printing Pty Ltd [2003] VSCA 68
Credit
296 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[62](2010) 31 VR 1 at paragraph [12]
297 Counsel for the plaintiff submitted there was simply no reason to disbelieve the plaintiff as to his belief about his pain state. Nothing was put to him that contradicted any of the “fundamental planks of his case”. There was no evidence that his condition was not as he described.[63]
[63]T98
298 Whilst there is no film and no medical opinion that the plaintiff was deliberately exaggerating the level of his symptoms, in my view, the plaintiff was not a reliable witness.
299 I found it very difficult to understand the plaintiff’s evidence at times. Clearly, he is an unsophisticated man who had difficulty expressing himself and addressing issues that were put to him. The plaintiff was pain focussed, describing his whole left side as being numb, from his shoulder to his ankle. He attributed all his difficulties to the incident, including at times on examination, cervical spine pain.
300 Whilst he was not “devious” in his evidence about the days worked with the Cross family, I do not accept he worked less than two days in light of Dr Jago’s notes of the plaintiff’s problems at work later in the year and also the defendant’s wage records setting out the plaintiff was paid for 8 hours’ work per week until 12 December 2011. The IPAR Report of 2 December 2011 also set out the plaintiff was then working 2 hours per day four days per week.
301 I accept the submission that the plaintiff minimised the amount of work he did after injury when it occurred to him it was in his interest to do so.[64]
[64]T91
Pain and suffering
302 Counsel for the defendant accepted the plaintiff at least had an Adjustment Disorder but submitted it was not severe and there was not sufficient evidence of a lack of functionality to satisfy the statutory test.[65] It was not suggested on the evidence the plaintiff does not suffer from a degree of pain. The issue was one of severity.[66]
[65]T92
[66]T94
Symptoms and diagnosis
303 The focus of the plaintiff’s evidence was on his back pain and related restrictions. He was anxious and nervous as a result of his chronic back pain but did not depose to or describe any further psychiatric symptoms of the nature mentioned by some medico-legal examiners.
304 Dr Jago diagnosed Depression in 2012 and referred the plaintiff for counselling with Mr Purchase, whom the plaintiff saw eight times that year. Mr Purchase diagnosed a Pain Disorder, with both psychological factors and a general medical condition. He thought the plaintiff needed a definitive medical diagnosis.
305 Since attending Dr Jebron in March 2014, the plaintiff has complained of being depressed and attended for chronic pain.
306 As detailed above, medico-legal examiners have diagnosed a range of psychiatric conditions of a relatively similar nature, although varying in severity.
Treatment
307 The plaintiff has not had any psychiatric treatment. He last had counselling in 2012. It is apparent from the medical evidence and the plaintiff’s own evidence that he believes he is suffering from a physical injury. He is under the misapprehension that surgery has been offered.[67]
[67]T3
308 The plaintiff is not presently taking any anti-depressant medication, as he does not feel it assists him.
309 In the present case there have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, such as hospitalisation significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts and psychotic symptoms.[68]
[68]Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 at paragraph 68 per Judge O’Neill
Lifestyle
310 The plaintiff lives at home with his parents and brother. He is able to socialise and he is active on Facebook.
311 Whilst the plaintiff claims a limited sitting tolerance of half-an-hour, he is able to drive for one to three hours without stopping.
312 The plaintiff has not been able to ride his motorbike or go fishing since the incident. He maintains a gym at home, which he uses on a limited basis.
313 The plaintiff does not have a history of significant work prior to the incident. Save for the financial year ending June 2007, when he earned $24,000 working for SDS, his earnings have been minimal. For the three years before the incident, he was in receipt of Newstart and worked a small number of hours with the defendant that did not interfere with his pension entitlement.
314 Whilst the plaintiff has not worked since leaving the defendant’s employ in late 2011, I do not accept that, on a permanent basis, he has no capacity for employment.
315 Taking into account all the evidence, I am not satisfied the pain and suffering consequences of the plaintiff’s psychiatric impairment are “severe”.
Loss of earning capacity
316 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
317 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
318 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
319 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
320 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
321 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
322 I am required to identify a “without injury” figure.[69]
[69](2005) 14 VR 622 at paragraph [70]
323 The plaintiff’s pre-incident earnings were extremely modest.[70] As was apparent from his taxation details, the plaintiff earned in the range of $2,000 to $5,600 a year in the three years prior to the incident. During that time, his income was principally from Newstart, working hours that would not affect his pension entitlements.
[70]T2
324 In these circumstances, it is not disputed the only way that the plaintiff can establish the requisite loss of earning capacity is to show he has no capacity for suitable employment.[71]
[71]T85
325 Whilst the plaintiff is unskilled and has a poor work history, I am not satisfied that for the foreseeable future he has no capacity for suitable employment on psychiatric grounds.
326 I accept the plaintiff demonstrated a capacity for light work after the incident, working up to 8 hours per week on the Cross family property until late December 2011, albeit with some difficulty.[72] As mentioned previously, I do not accept he worked less than a day as he finally stated, given the medical and wage records at that time.[73]
[72]See DCB 114 and Dr Jago’s notes, T89
[73]T90
327 Although Dr Jago noted the plaintiff had problems on his return to work in late 2011, by mid 2012, he thought the plaintiff had a capacity for light work, returning to duties on a graduated basis – a view then shared by treating physiotherapist, Mr Huckson.
328 As of early 2013, Dr Jago was not sure when the plaintiff would be fit to undertake suitable paid employment. Certificates from Dr Jago certifying the plaintiff unfit for all work from 6 April 2013 to December 2013 are available but there was no report from him explaining the basis of this certification.
329 The most recent certification from the plaintiff’s general practitioner was that provided on 2 July 2014 by Dr Jebron, who then certified the plaintiff fit for modified duties from 8 July to 4 August, noting he is able to sit and stand, and walk no longer than 30 minutes before exacerbation of pain; able to drive an automatic car with frequent stretch rest; able to carry an object up to one kilogram before exacerbation of pain and unable to do bending.
330 Whilst the medico-legal opinion is largely that the plaintiff does not have a capacity for work on psychiatric grounds, this is not a trial by doctor.[74]
[74]T92
331 In my view, Professor Doherty provided a comprehensive well-thought analysis, of the plaintiff’s employment capacity, having considered the other views in this regard. He considered the plaintiff still had a capacity for employment and placed him at the lower end of the range of psychiatric disorders.[75]
[75]T86
332 Whilst in 2012, Dr Athey thought the plaintiff was not fit for pre-injury work with the defendant or another employer, he considered the plaintiff was fit for the jobs suggested by IPAR.[76]
[76]T88
333 In July 2013, Dr Kornan thought the plaintiff’s psychiatric ill health condition prevented him from working at that stage. He did not state this situation was permanent. He thought treatment by a psychologist could be useful for a period of time and that the plaintiff’s psychiatric impairment could be stabilised.
334 Similarly, whilst Dr Duke thought in mid-2013 that the plaintiff had no current work capacity, he thought the capacity for future work was unclear and that further efforts needed to be made to bring the plaintiff to an understanding of a lack of pathophysiology adequate to explain his current symptoms and further efforts made to induce him to undertake appropriate physical exercise and mobilisation.
335 Dr Shutz is the most supportive of the plaintiff in relation to the loss of earning capacity issue, finding, in 2015, on the basis of the plaintiff’s psychiatric injury alone, he had no realistic capacity to work on a reliable, permanent and sustainable basis.
336 Taking into account all the evidence, I am not satisfied that, for the foreseeable future, the plaintiff is incapacitated for all employment.
337 Accordingly, the plaintiff’s application for leave to bring proceedings for damages for loss of earning capacity is also dismissed.
- - -
0
8
0