Said v Smart Group Management Pty Ltd
[2021] VCC 746
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01589
| MAGID ABDEL RAHMAN SAID | Plaintiff |
| v | |
| SMART GROUP MANAGEMENT PTY LTD (ACN 159 333 016) | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 May 2021 | |
DATE OF JUDGMENT: | 4 June 2021 | |
CASE MAY BE CITED AS: | Said v Smart Group Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 746 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – severe mental or behavioural disturbance or disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Masters v McCubbery & Ors [1996] 1 VR 635; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199; Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304; Mobilio v Balliotis [1998] 3 VR 833; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Shine Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
1In this proceeding, the plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring a proceeding for the recovery of damages for the pain and suffering consequence of injuries[1] sustained in the course of his employment with the defendant on 24 April 2013. The plaintiff relied only upon paragraph (c) of the definition of “serious injury”.
[1]No doubt because of the Panel’s answers to Questions 5, 12 and 13, the application for leave is confined to the pain and suffering consequence of the Adjustment Disorder with Anxiety.
2On that day, the plaintiff was employed as a storeman, as he had been since commencing employment with the defendant in January of that year. In order to retrieve boxes to complete an order, the plaintiff had been raised on the tines of a forklift being driven by another worker. Whilst doing so, the plaintiff fell to the concrete floor, a distance of some two metres. He was taken by ambulance to The Alfred hospital, where he was treated for the physical consequences of the fall, which included a spinal fracture and a head injury.
3Following the fall and the immediate treatment of the injuries sustained in it, the plaintiff continued to complain of low back and hip pain, and of psychological consequences of both the fall itself and of the injuries sustained in it. His treatment has been extensive, and it is summarised in the three affidavits the plaintiff has sworn in support of this application, and in the medical reports tendered in evidence.
4On 24 September 2020, I referred medical questions to the Medical Panel (hereafter I shall refer to the Medical Panel as “the Panel”) pursuant to s274 of the Act.
5On 8 January 2021, the Panel gave its Certificate of Opinion, which was accompanied by its Reasons for Opinion,[2] and by a list of the materials which had been provided to the Panel as part of the referral.[3]
[2]Which were tendered by consent.
[3]Joint Court Book (“JCB”) 7-34
6I set out in full the Medical Panel’s Certificate of Opinion:
“Question 1 What is the nature of the medical condition of the Plaintiff’s:
a) head (closed head injury);
b) thoracic and/or lumbar spine; and
c) mind?
Answer: In the Panel’s opinion Mr Said has:
a) A minor traumatic brain injury with no skull fracture which has now resolved;
b) A soft tissue injury of the thoracolumbar spine with an undisplaced fracture of the transverse process of the T12 which has now resolved;
c) an adjustment disorder with anxiety on the background of a previous history of acting out behaviour, mood instability; and a heavy substance use disorder which is now in remission.
Question 2
a) Does any medical condition of the head (closed head injury) identified by the Medical Panel in answer to Question 1(a) continue to result from or be materially contributed to by injury sustained on 24 April 2013?
b) Does any medical condition of the thoracic and/or lumbar spine identified by the Medical Panel in answer to Question 1(b) continue to result from or be materially contributed to by injury sustained on 24 April 2013?
c) Does any medical condition of the mind identified by the Medical Panel in answer to Question 1(c) continue to result from or be materially contributed to by injury sustained on 24 April 2013 to the:
I. head (closed head injury); or
II. thoracic and/or lumbar spine?
Answer: In the Panel’s opinion:
a)Mr Said has no current condition of his thoracic and/or lumbar spine resulting that is materially contributed to by the injury sustained on 24 April 2013;
b)Mr Said no current condition of his head that is materially contributed to by the injury sustained on 24 April 2013;
c)The adjustment disorder with anxiety was, and is materially contributed to by the claimed head and thoracic/lumbar spine d injuries.
Question 3 Is any medical condition of the Plaintiff’s:
a)head (closed head injury);
b)thoracic and/or lumbar spine; or
c)mind -
as identified by the Medical Panel ‘permanent’ meaning likely to last for, during or through the foreseeable future?
Answer: In the Panel’s opinion:
a)Not applicable;
b)Not applicable;
c)The adjustment disorder with anxiety is likely to be permanent.
Question 4 Is the Plaintiff incapacitated for work as a storeman?
Answer: In the Panel’s opinion Mr Said is incapacitated from his pre-injury duties as a storeman.
Question 5 If ‘yes’ to Question 4, does such incapacity result from or is it materially contributed to by any and if so which medical condition of the Plaintiff’s:
a)head (closed head injury);
b)thoracic and/or lumbar spine; or
c)mind?
Answer: In the Panel’s opinion Mr Said’s incapacity for his pre-injury duties is ted to by his psychiatric condition.
Question 6 Does the Plaintiff’s head (closed head injury) condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
a)a ‘current work capacity’ within the meaning of the Accident Compensation Act 1985 (‘the Act’); or
b) ‘no current work capacity’ within the meaning of the Act?
Answer: In the Panel’s opinion Mr Said has no current incapacity for work resulting from the closed head injury (excluding the psychological or psychiatric consequences thereof).
Question 7 If ‘yes’ to question 6(a):
a) What employment would constitute suitable employment within the meaning of the Act?
b) In relation to any suitable employment identified by the Medical Panel in answer to Question 7(a), for how many hours and days per week does the Plaintiff have capacity to work?
c) Would employment as a:
(i) despatch clerk;
(ii) stock controller;
(iii) trade sales assistant;
(iv) general clerk;
(v) nursery hand (retail);
(vi) showroom consultant (new homes);
(vii) estimator (carpentry); or
(viii) customer service and sales consultant -constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
Answer: Not applicable
Question 8 If ‘yes’ to question 6(b), is this ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Not applicable
Question 9 Does the Plaintiff’s thoracic and/or lumbar spine condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
a)a ‘current work capacity’ within the meaning of the Accident Compensation Act 1985 (‘the Act’); or
b)‘no current work capacity’ within the meaning of the Act Answer: in the Panel’s opinion Mr Said has no current incapacity for work resulting from the claimed thoracic and or lumbar spine injuries
(excluding the psychological or psychiatric consequences thereof).
Question 10 If ‘yes’ to question 9(a):
a) What employment would constitute suitable employment within the meaning of the Act?
b)In relation to any suitable employment identified by the Medical Panel in answer to Question 7(a), for how many hours and days per week does the Plaintiff have capacity to work?
c)Would employment as a:
(i) despatch clerk;
(ii) stock controller;
(iii)trade sales assistant;
(iv)general clerk;
(v) nursery hand (retail);
(vi)showroom consultant (new homes);
(vii) estimator (carpentry); or
(viii) customer service and sales consultant -
constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
Answer: Not applicable
Question 11 If ‘yes’ to question 9(b), is this ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Not applicable
Question 12 Does the Plaintiff’s psychiatric condition result in or materially contribute to him having:
(a) a ‘current work capacity’ within the meaning of the Act; or
(b) ‘no current work capacity’ within the meaning of the Act?
Answer: In the Panel’s opinion Mr Said does have a current work capacity with respect to his psychiatric condition.
Question 13 If ‘yes’ to question 12(a):
a) What employment would constitute suitable employment within the meaning of the Act?
b) In relation to any suitable employment identified by the Medical Panel in answer to Question 7(a), for how many hours and days per week does the Plaintiff have capacity to work?
c) Would employment as a:
(i) despatch clerk;
(ii) stock controller;
(iii)trade sales assistant;
(iv)general clerk;
(v) nursery hand (retail);
(vi)showroom consultant (new homes);
(vii) estimator (carpentry); or
(viii) customer service and sales consultant -
constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
Answer: In the Panel’s opinion:
a) Any employment appropriate to Mr Said’s training and experience would constitute suitable employment;
b) Mr Said has the capacity to work in a full time capacity;
c) Employment as
i. despatch clerk;
ii. stock controller;
iii. trade sales assistant;
iv. general clerk;
v. nursery hand (retail);
vi. showroom consultant (new homes);
vii. estimator (carpentry); or
viii. customer service and sales consultant –
in a full time capacity constitute suitable employment.
Question 14 If ‘yes’ to question 12(b), is this ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Yes.”
7Before the evidence commenced, submissions were made as to the operation of s313(4) and the legal consequences of the Panel’s Opinion given in this proceeding, and as to whether changes in circumstances, and in the plaintiff’s medical conditions since the Panel gave its Opinion, particularly in relation to the “heavy substance use disorder which is now in remission”, could be brought into account in my assessment of whether the consequences of the mental injury were “severe” in the required sense. As the Panel has not offered an opinion as to the gravity of the Adjustment Disorder with Anxiety, the parties were in dispute as to whether and what later occurring events, symptoms, medications and consequences bore upon the Court when giving effect to the obligation to adopt and apply the Panel’s Opinion.
8Section 313(4) of the Act provides:
“(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a) is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
9Although the plaintiff allowed that the obligations to “adopt and apply”, and to treat as “final and conclusive”, the Opinion of the Panel applied here, the plaintiff submitted, as I understood it, that a subsequent deterioration in the plaintiff’s health, in particular a relapse into heavy substance use, could be relied upon in consideration of the plaintiff’s application under s325. In this regard, the plaintiff submitted that the requirement of s325(2)(j) that “the assessment of serious injury must be made at the time that the application is heard by the court …” was in a sense in conflict with the requirement of s313(4) that the Opinion be accepted as final and conclusive by the Court.
10Neither party was able to refer me to any authority bearing upon the question of whether events or deteriorations, occurring after the giving of an opinion by the Panel, would permit a departure by the Court from the Opinion given.
11After confirming instructions, counsel for the defendant submitted that the words “final and conclusive” meant exactly that, and that anything that happens after the Certificate of Opinion is given cannot alter the Court’s obligation to treat the Opinion as final and conclusive.[4]
[4]T128
12In my opinion, the defendant’s submission is correct. In my view, a construction of the words “accepted as final and conclusive” which allows a court to reconsider an issue foreclosed by a Panel’s opinion is contrary to the plain meaning of those words and the history of the provision.
13At an earlier time,[5] at which the Court’s obligation was to “adopt” a Panel’s opinion, there was a proviso which set out conditions under which an opinion “need not be adopted by the Tribunal”. Amongst the conditions were:
(i) new information emerging since the opinion; and
(ii) evidence that the medical condition of the worker had changed; and
(iii) a satisfaction that exceptional circumstances made it unjust or unreasonable to adopt the opinion.
[5]Section 60 as inserted by Act No 64 of 1989
14By 1992, it was permissible for the Court in certain prescribed circumstances to refer new medical questions.[6]
[6]Section 45(3)
15Section 45, as considered in Masters v McCubbery & Ors,[7] required that the opinion “shall … be adopted by the Court as the answer to that question”. Of this, Winneke P said that the opinions given by the Panel were decisions which –
“… operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.”[8]
[7][1996] 1 VR 635
[8](ibid) at 642. See also at 643.
16By Act 107 of 1997, ss(4) of s68 was inserted, in a form very close the present form of s313(4), and the exception to the obligation to adopt provided for in s45(3) was repealed. The new ss(4) expanded upon the obligation to “adopt” the opinion of the Panel by requiring the Court to “adopt and apply” and to “accept as final and conclusive” the Panel’s opinion and provided that those obligations operated “irrespective of … when the medical question was referred”.[9]
[9]Although in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the obligation was held to apply only to the referring body, and the effect of the opinion only operated in respect of the proceeding in which the questions were referred.
17Amendments made by Act No 26 of 2000 inserted s134AB, including s38(j), in identical form to s325(2)(j) and, by the insertion of s45(1A), enabled referral of medical questions to a Panel in applications for leave under s134AB. By then, s68(4) had been in the Act since 1997.
18In my view, the section requires the Opinion of the Panel on a medical question to be adopted and applied by me, to be accepted as final and conclusive by me, and these obligations operate irrespective of when the medical question was referred. It follows that events occurring since, or changes in the plaintiff’s symptoms since the Panel gave its opinion, are irrelevant, except where they bear upon the assessment of the “severity” of the only condition the Panel found to be compensable – “an Adjustment Disorder with Anxiety”. I should mention that the Panel found that the Adjustment Disorder with Anxiety is likely to be permanent, that the plaintiff is incapacitated for his pre-injury duties as a storeman, and that this incapacity is materially contributed to by his Adjustment Disorder with Anxiety.[10]
[10]The Opinion given in answer to Questions 3, 4 and 5
The evidence
19Only the plaintiff gave evidence before me. He was cross-examined on the three affidavits he had sworn, the latest of them sworn on the second day of hearing.
20During the cross-examination of the plaintiff, surveillance videos of his activities on 7 and 8 May 2021 were shown.[11] The parties tendered documents from the Joint Court Book,[12] which included the s304 Statement and the Reasons of the Panel which were tendered by consent.
[11]Exhibit 2
[12]Exhibits 1 and 3
Background
21The plaintiff is now thirty-seven years of age. He was born in Egypt and came to Australia the age of nine. He attended local schools and then Swinburne TAFE but did not complete Year 12. Next, he worked as an apprentice carpenter for two-and-a-half years and this employment ended when the employer went out of business. Of the years between the end of his apprenticeship studies and the injury this case concerns, the plaintiff said, in his first affidavit, that his life was disjointed and that he was – unemployed for a time, a window fitter, a furniture removalist and a student at Holmesglen TAFE. Over the years prior to injury, the plaintiff said his life was complicated by – drug abuse, involvement with “the wrong crowd,” criminal activity, time in jail and in drug rehabilitation facilities.[13]
[13]JCB 59 and 60, paragraphs 6 and 7
22The plaintiff was in receipt of Centrelink benefits prior to his commencement of work with the defendant in January 2013. He was employed as a storeman and assistant in the warehouse. He described the range of physical activities involved in his work.
23The plaintiff recounted the circumstances leading up to his fall from the tines of a forklift to a concrete floor some two metres below. He landed on his back and head, and was in and out of consciousness.
24The plaintiff was taken by ambulance to The Alfred hospital and after discharge that evening, to the care of his long-time general practitioner, Dr Ariens.
25In his first affidavit, the plaintiff states that he was referred for physiotherapy, there were further investigations of ongoing spinal pain, he was treated with Tramadol Mobic and Valium, referred to an orthopaedic surgeon, and that he became –
“… very frustrated, angry and depressed. I relapsed into drug abuse. I was using heroin for pain and psychological distress. In 2016 I attended the Wyndham Clinic for assessment of my drug problems.”[14]
[14]JCB 62, paragraph 20
26In 2017, the plaintiff returned to Egypt to live with his father and his father’s family and was there treated by a neurosurgeon.
27In 2018, the plaintiff returned to Australia to the care of Dr Ariens, who prescribed Mobic, Tramadol, Lyrica, Stilnox, Valium and antidepressant medications, as well as physiotherapy.
28In his first affidavit, sworn in September 2019, the plaintiff said he suffered from pain in his mid and low back, back spasms, referred pain in the right leg to the foot, headaches, migraines, problems with memory and concentration, and –
“I continue to be depressed and suffer anxiety. There are times when I am very sad.”[15]
[15]JCB 63, paragraph 28
29Of his current treatment, the plaintiff said he was prescribed Tramadol, Mobic, Lyrica, Stilnox and Avanza. He described difficulty with sleep, and stated that the medication for this does not always work and –
“There are times when I have difficulties getting to sleep because my pain is too bad or my mind is over-thinking and racing.”[16]
and:
“Often I wake during the night because of the pain in my back.”[17]
[16]JCB 63, paragraph 31
[17]JCB 63, paragraph 32
30As to his mood, the plaintiff swore:
“I continue to be depressed. I have suffered suicidal thoughts. There are times when I isolate myself. There are times when I am very low and sad.”[18]
[18]JCB 64, paragraph 34
31Of the consequences of the injury for his social life, the plaintiff said he had not been able to maintain a relationship, and that –
“Before my injuries, I used to be a ‘party animal’. That is how I ended up in the drug scene and got myself into trouble. I am no longer as outgoing as I had been.”[19]
[19]JCB 65, paragraph 36
32The plaintiff next set out sporting and recreational activities that were lost to him,[20] and attributed, as I understand it, a diminution in his social life to ongoing pain and depression. He stated that his domestic activities are reduced, and he then set out a number of aspects of his day-to-day life that are compromised by the presence of back pain and spasm.
[20]JCB 65, paragraphs 37-40
33As to the consequences for his work, the plaintiff explained that he had done a course in traffic management but had only coped with three or four weeks of this work, and that he had undertaken a real estate agents’ course, but had not worked in that field because of a combination of his prior convictions, difficulty driving and sitting at a computer, his level of pain and psychological issues.
34On 29 April 2021, so only two weeks before the hearing of this application, the plaintiff swore a further affidavit.[21]
[21]JCB 69
35By this stage, the Panel had returned its Certificate of Opinion. The plaintiff swore that he felt like a completely different person and –
“I have good days and bad days, but generally speaking I feel down, depressed and anxious most days.”[22]
[22]JCB 69, paragraph 4
36Next, he swore that he was prescribed Cymbalta by his psychiatrist, Dr Talluri, that he continues to see Dr Talluri regularly, and would like to see him more if funding allowed.
37Next, he swore that he continues to experience sleep problems due to pain and his mental state, describing it:
“… I experience sleep problems most nights due to my anxiety and depression. I constantly worry about my future. I struggle to turn my mind off.”[23]
[23]JCB 69, paragraph 7
38Next, the plaintiff describes feelings of anger, impatience and irritability, a loss of confidence, self-esteem and motivation, as well as social withdrawal. He describes spending days at home in his room watching television or playing video games, and the experience of panic attacks in public places. He said he is tearful on most days, has no libido, and is disappointed in the loss of a relationship he had at the time of injury, and that he experiences suicidal thoughts on a regular basis. Next, he notes that he agrees with aspects of the Panel’s Opinion, and states that he enjoyed work driving forklifts.
39In a further affidavit, sworn on the second day of hearing, the plaintiff corrected the list of medications set out in his two earlier affidavits, and stated that he had received counselling for Depression from Dr Ariens, and had been placed on multiple Mental Health Plans. He states that he was prescribed Valium in May 2014 for anxiety and back spasms, and that he had had counselling and cognitive behavioural therapy “for my depression and back pain”.[24]
[24]Further affidavit of the plaintiff sworn 18 May 2021, paragraph 3
40Next, the plaintiff stated that he had been prescribed Zoloft as an antidepressant between December 2014 and November 2016, he had been prescribed Lyrica in 2015 and Avanza in October 2016, and that he continued to use both.
41Next, the plaintiff said this:
“At the time I swore my previous affidavit dated 29 April 2021, I had relapsed into drug use again. To the best of my recollection I had not been using drugs immediately prior to swearing my previous affidavit dated 29 April 2021, and was not affected by drugs when I swore it. I omitted to mention my relapse into drug use again as I had not admitted this to my family and experience a sense of shame and hopelessness about my relapse.”[25]
[25]Further affidavit of the plaintiff sworn 18 May 2021, paragraph 4
42Next, the plaintiff swore that he had returned to heroin use because he did not cope well with the Panel’s Opinion, and because he continued to experience chronic pain, next stating that in the week before the Panel gave its Opinion, he had relapsed into using cocaine and amphetamines. He explained that his drug use was funded by a total and permanent disability benefit he had received.
43Next, despite having said that his relapse was due to the Panel’s Opinion, he recounted episodes of hospitalisation in the Year 2020 associated with heroin use, concluding by saying “I continue to experience feelings of depression and hopelessness, and see my psychiatrist intermittently”.[26]
[26]Further affidavit of the plaintiff sworn 18 May 2021, paragraph 9
44Cross-examined, the plaintiff sought to explain the histories he had given that downplayed, or denied, the use of illicit drugs or heroin, by a misunderstanding, or by his view of the difference between daily and occasional use. I thought his offered explanations for omissions and minimisations improbable. Of recent surveillance footage, he said that he can only bend in the way shown in the surveillance footage because of the amount of heroin he had taken, and retreated from his earlier evidence, which had been that he did not drive (as the surveillance showed him to do with his mother in the car) if he had taken heroin.
45In re-examination, the plaintiff repeated that he accepted the accuracy of all of the clinical notes and histories that had been referred to, and explained that he regarded himself as “clean” if he was only using drugs on weekends. Next, he gave an account of his life in the twelve months before the injury, that was non-specific, and in marked contrast to the description offered in paragraphs 6 and 7 of his first affidavit.
46In evidence also was an affidavit sworn by the plaintiff’s sister, Nina.[27] In it, she swears that she had noticed a big change in the plaintiff’s personality and activities from how he was before the 2013 injury. Next, she describes her observations of his behaviour since the injury, and compares that to the way it was before. If she is aware of his past and present substance abuse, she does not mention it.
[27]JCB 72
History of injury and treatment
47In my view, it is not necessary to set this out in great detail as the Panel has found that any physical injury sustained has now resolved.
48The plaintiff was taken to The Alfred hospital, but discharged later that day. Later medical reports from Dr Ariens show that he sustained a head injury with loss of consciousness and a fracture of the thoracolumbar spine and, writing in January 2017, Dr Ariens said that –
“… he has continued to suffer from back pain and experiences depression as a result of his chronic pain, reduced mobility and compromised lifestyle that has been, subsequent to the fall.”
and:
“Currently Mr. Said has depression secondary to his work related back injury, that has precluded him from returning to work and has impacted significantly on his general well-being.”[28]
[28]JCB 120
49Writing again in December 2019, Dr Ariens repeated his view that the plaintiff “has depression secondary to his work related back injury”. A later report dated 23 May 2020 focuses only on the physical consequences of the injury.[29]
[29]JCB 122
50In March 2019, Dr Gary Speck, orthopaedic surgeon, wrote to Dr Ariens concerning the plaintiff’s physical complaints, making the observation that “much of his pain and behaviour is in the nature of chronic pain behaviour”.[30] In September of that year, Mr Speck wrote to the plaintiff’s solicitors. Mr Speck noted that at that time, the plaintiff was only taking Tramal, and made a diagnosis of a resolved soft tissue injury of the lumbar spine with episodic back pain subsequently, noting that his current incapacity “does not relate to the injury specifically but rather a chronic pain syndrome”.[31]
[30]JCB 133
[31]JCB 139
51In two reports written in 2014, the occupational physician, Dr Andrew Miller, wrote that the plaintiff’s then problems were related to the original injury and that his recovery had been complicated by “the onset of a depressive disorder which has not been treated as yet”.[32]
[32]JCB 156
52Examined in March 2014 on behalf of the claims agent by the forensic psychiatrist, Dr Alan Jager, a diagnosis of a Major Depressive Disorder was made. Dr Jager saw the plaintiff again in October of that year and wrote that the Major Depressive Disorder was in partial remission.
53Associate Professor Peter Doherty, psychiatrist, examined the plaintiff in March 2020. Professor Doherty took a history of symptoms of anxiety.[33] Professor Doherty had available to him the clinical notes from the Wyndham Clinic Private Hospital concerning an episode of detoxification over a period of about a month in September 2016, as well as records from Prahran Clinic showing a 2002 diagnosis of heroin addiction for which buprenorphine and Valium were prescribed.
[33]JCB 231, paragraphs 44-45
54After setting out in some detail all the reports he had reviewed and the plaintiff’s current complaints, Professor Doherty made the observation that there had been some “mild pain related behaviours” on examination but that “there were (sic) no significant objective evidence of a mood disturbance or of anxiety”.[34] Professor Doherty thought there was evidence of an adjustment reaction that did not meet diagnostic significance, and that there was no diagnosable Major Depressive Disorder or Adjustment Disorder present. He thought there was no indication for treatment.
[34]JCB 236
55In April of this year, Professor Doherty wrote a further report without re-examining the plaintiff. He had been provided with a report and clinical notes from Dr Talluri,[35] the Panel’s Opinion and the clinical notes of the Access Medical Centre. From the latter he extracted six entries related to the plaintiff’s mental health, some of them referring to Anxiety. Professor Doherty wrote that the supplementary material did not change his opinion, and noted the difference between his view, and that of the Panel.
[35]Where Dr Ariens practices. The notes begin in February 2012.
56Dr Richard Sullivan, pain specialist and anaesthetist, examined the plaintiff at the request of his solicitors in April 2020. Dr Sullivan concluded that the plaintiff’s pain would preclude his return to work and that he had post-traumatic chronic pain, as well as central sensitisation affecting the lumbar spine. This, he said, was an organic condition. He thought it likely there were psychological comorbidities that should be assessed by a psychiatrist.
57In April 2020, the plaintiff was assessed by Dr Gregor Schutz,[36] consultant psychiatrist. Dr Schutz’ history included reference to earlier episodes of heroin addiction and that the plaintiff was then taking Tramadol, Lyrica, Mobic, Avanza and Voltaren, but no longer using illicit drugs. Of his current symptoms, he recorded significant pain, interfering with a range of physical activities, and his mental health. The history included:
“He states that he wakes up anxious. He states that he feels that he is a failure. He has no flashbacks. He states he gets panic attacks in large crowds and shopping centres. He can be sweaty and anxious. … He does not like being around family. He avoids staying at family functions. He gave an example of a recent family wedding where he left after a few minutes and was tearful. He feels depressed that he cannot do anything.”
[36]JCB 306
58Under the heading Mental State Examination, Dr Schutz noted “he did not appear significantly anxious”. Dr Schutz noted that the plaintiff had not much engaged with psychological or psychiatric treatment, and that there were no substantial abnormalities of mood or effect on mental state examination, and, on the assumption the account given was reliable, stated that it was reasonable to conclude he had developed an Adjustment Disorder with Anxious and Depressed Mood secondary to his experience of chronic pain.
59In evidence was a report from Dr Ravi Talluri, consultant psychiatrist.[37]
[37]JCB 439
60Dr Talluri, writing in November 2020, said he had seen the plaintiff on four occasions since June of that year. On the history he obtained, Dr Talluri made a diagnosis of a severe depressive episode of Major Depressive Disorder for which he prescribed duloxetine and Seroquel. At the time of writing, Dr Talluri was adjusting the plaintiff’s medication from Avanza to Cymbalta, noting that he was taking Stilnox to help with insomnia. Dr Talluri wrote that further treatment may be of benefit. Dr Talluri’s very terse clinical notes were in evidence,[38] and note that the plaintiff had missed the last two appointments.
[38]JCB 442-446
61In evidence also were Dr Arien’s clinical notes dating back to December 2012. They show that Stilnox was prescribed in December 2012 and January 2013. Following the injury, the notes record investigations, prescriptions of analgesia and anti-inflammatories, depression and the prescription of Tramal, Panadol Osteo and Voltaren Gel. After about mid-2014, there are regular prescriptions of Valium, and from December 2014, Zoloft, the antidepressant. Lyrica appears in August 2015 and, in early 2016, there are a number of consultations and investigations of knee problems. In August 2016, there is a consultation for depression and counselling, and Stilnox appears.[39] By October 2016, the plaintiff was prescribed Avanza, and relatively regular prescriptions of Stilnox, Valium and other medications persisted (Stilnox is prescribed at the rate of one tablet in the evening). Over the past year or so, most consultations appear to be for counselling, and the only reference to anxiety appears in July 2019, when the reason for visit includes “Depression, Anxiety disorder, substance induced”. A week later, the “reason for visit” is again “Anxiety disorder, substance induced”. In the last entry, of 23 August 2019, it is recorded that the “reason for visit” was Depression, Anxiety, and a letter to Dr Brendan Murphy, a psychiatrist, was generated.
[39]JCB 482
62Earlier clinical records from the Prahran Clinic[40] appear to relate to problems with drug abuse and heroin addiction in the Year 2002. Also in evidence were progress notes from The Toorak Clinic recording consultations in 2001 of no obvious relevance.[41]
[40]JCB 494
[41]JCB 497
Submissions
63Relying upon the requirement to adopt and apply the Panel’s unambiguous Opinion, the defendant submitted that the only mental or behavioural disturbance or disorder to be evaluated here was the “Adjustment Disorder with Anxiety”, and that all other complaints of pain, depression, substance use disorder and disability that were not consequences of that diagnosis were irrelevant. The defendant submitted that here, there is no evidence from anyone involved in the treatment of the plaintiff that would assist in identifying the severity of, or the consequences of, that condition, as the now dated reports from Dr Talluri and Dr Ariens were based upon a diagnosis the Panel did not accept.
64The defendant submitted that it was impermissible to examine the Panel’s Reasons for Opinion in order to identify an ambiguity that is not apparent from the answers given in the Certificate of Opinion.[42] Relying on passages in Yirga-Denbu v Victorian WorkCover Authority,[43] the defendant submitted that the medical opinions tendered in support of the plaintiff’s case were of no assistance, because the authors based their opinions on a diagnosis which was different from that reached by the Panel.
[42]Here anticipating an argument based on the Panel’s observation at JCB 20, where the Panel stated that it “took all of the above into account in forming the opinion that Mr Said has no current physical condition of his lower back, with his chronic pain being attributable to his psychological condition”. And two paragraphs further on, agreeing with a report the Panel had before it that the plaintiff “had recovered fully from his spinal fracture and was fit for his pre-injury employment”. On that page, the Panel recounts that it also undertook a psychiatric assessment of the plaintiff by videoconference. It then sets out the history, which seems likely to have been taken during the psychiatric assessment, at the end of which, in the course of the reasons, the Panel recorded that it “did not consider that Mr Said’s presentation met the accepted diagnostic criteria for a Chronic Pain Disorder” - JCB 25.
[43][2018] VSCA 35 at paragraphs [58] and [87]
65As to the use that might be made of the Panel’s reasons, the defendant, by reference to the Court of Appeal’s observations Zhang v Joy Foods Australia Pty Ltd,[44] submitted that the rejection of an organic explanation for chronic pain, and the attribution of it to “his psychological condition”, could not support a finding of a mental or behavioural disorder that was permanent and severe, because no psychological condition was identified as being responsible for his complaints of chronic pain, and further, because the permanence of any such condition was not addressed.
[44][2016] VSCA 199 at paragraphs [65]-[69]
66As to changes in the plaintiff’s condition since the Panel gave its Opinion, on the basis that they might be relevant, the defendant submitted that there was no medical evidence in support of the plaintiff’s account of deterioration, and that his sister’s affidavit made no reference to his drug use whatsoever, and made no comment upon changes in the plaintiff’s condition, other than before and after the original injury. The defendant submitted the plaintiff’s credit and reliability was damaged, especially having regard to the contrast between the affidavits of 29 April 2021 and 18 May 2021. The defendant submitted that the plaintiff’s evidence about the extent, timing and length of his substance use problems was unreliable, and inconsistent with many of the records and histories that were in evidence. The defendant submitted that the plaintiff had not been frank about a number of matters – his pre-accident psychological problems, drug use and use of Stilnox as disclosed by Dr Arien’s records, and that the fact of two prescriptions for Stilnox, within a three-week period, only months before the accident this case concerns, did not sit easily with the account he gave in re-examination. It was pointed out that other medical histories about his relationship status, and the reasons for it, before the accident, stood in marked contrast to the ‘rosy picture’ the plaintiff painted of his life in the lead up to the accident. The defendant submitted that the loss of work as a forklift driver was not a significant consequence, as the plaintiff had only been doing that work for three months. Before that, his work history had been patchy. The defendant submitted that the surveillance material stood in contrast to the plaintiff’s presentation to any number of medical practitioners, and to the Panel, and in contrast to his account of difficulty with crowds.
67The defendant submitted that the absence of any current treatment told against his Adjustment Disorder with Anxiety being regarded as “severe”. Further, the defendant submitted that the plaintiff’s claim of deterioration in his substance use because of his disappointment at the Panel’s Opinion was not something that could be brought into account on this application, because that deterioration was caused by litigation, rather than the by the only compensable injury identified by the Panel, making the point that, in any event, that deterioration is not permanent, because the plaintiff gave evidence that as soon as this case is over, he plans to enter rehabilitation.
68The plaintiff, by reference to the observations of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak,[45] developed the submission that though the Reasons of the Panel were inconsistent with the opinion expressed in the Certificate, it nevertheless represented an opinion that had been formed in answer to a medical question.[46] It followed, the plaintiff submitted, that I was bound to apply the Certificate of Opinion and the Reasons, and that when I did so, I was bound to find that the plaintiff experiences chronic pain attributable to the psychological injury.[47] The plaintiff submitted that I was not bound to find with specificity the psychological injury sustained, but rather to approach it in “broad compass” and conclude that the plaintiff suffers chronic pain attributable to the psychological injury that the Panel had identified.
[45](Supra) at paragraph [28]
[46]Counsel put it: “… the inconsistencies within the reasons for the opinion can be examined such that they contradict the recorded certificate and represent an expression of opinion that has been formed” – T145
[47]The passage in the Reasons reads “… with his chronic pain being attributable to his psychological condition” – JCB 20
69Turning to the “heavy substance use disorder” now in remission, the plaintiff submitted that the expressions used by the Panel should be construed as describing a present heavy substance use disorder now in remission – “remission” meaning a temporary reduction in the severity of the condition. It was submitted, by reference to s325(2)(j), that I am required to make findings about the plaintiff’s condition at the date of hearing in assessing the consequences of the injury identified. The plaintiff submitted that the words “final and conclusive” did not require me to disregard events and circumstances occurring after the giving of the Certificate of Opinion. Next, the plaintiff submitted that the Panel’s opinion, that the heavy substance use disorder was in remission, did not preclude me from having regard to the condition in the form it was in at the time of hearing – currently relapse – and submitted that the use disorder was a consequence of either the physical or psychological injury sustained as a result of the fall and should lead to a conclusion that the plaintiff’s psychological injury was “severe” in the required sense.
Analysis
70In my view, the consequence of the adoption and application of the Panel’s Certificate of Opinion is that the only compensable mental or behavioural disturbance or disorder from which the plaintiff suffers is an Adjustment Disorder with Anxiety. It follows, that only the consequences (whether physical or psychological[48]), that result from or are materially contributed to by that medical condition, can be brought into account in the assessment of whether that mental or behavioural disturbance or disorder is “severe” in the required sense.
[48]cf. Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304
71In that regard, the plaintiff bears the onus of proof.
72In my view, the evidence falls a very long way short of establishing that the plaintiff’s Adjustment Disorder with Anxiety is “severe” in the required sense. See Mobilio v Balliotis.[49]
[49][1998] 3 VR 833
73Here, the plaintiff’s medical histories and affidavits recount a great many changes in his life, his emotional responses to injury, and the pain and disability he has experienced. Of these changes, there is no attempt in the plaintiff’s account to identify symptoms and consequences which are, or might be, caused or contributed to by the compensable Adjustment Disorder with Anxiety, as distinct from those resulting from other causes whether physical or psychological that the Panel has found either do not exist, or are not compensable.
74In my view, the evidence shows that the plaintiff has received little, if any, treatment for his condition of Adjustment Disorder with Anxiety. His medication over the years has been very largely in the form of antidepressants, and there is no medical opinion which states that they were prescribed for any symptoms of anxiety. It may be that the prescription of Valium, which he had been prescribed in the context of substance abuse years before these injuries were sustained, and the prescription of Stilnox, which he was also taking in the months before this injury was sustained, could be said to be treatment of his anxiety condition, but the prescribed levels of these medications are not said to be very high. Apart from four sessions with Dr Talluri ending last October, and counselling with Dr Ariens, there is no evidence of any significant psychological or psychiatric treatment of his Adjustment Disorder with Anxiety. He has never been hospitalised for an anxiety state. The video surveillance, though far from dramatic, does show that he is able to drive, socialise, to attend shopping centres with the responsibility of a young child, and to move relatively normally.
75Even if it were relevant, his relapse into heroin use was, on his account, caused by his disappointment with the Panel’s Opinion. It is not suggested in his affidavit material that it was prompted by any symptoms of anxiety, and in any event the Panel did not find that this disorder was materially contributed by the injury. Further, the plaintiff said he has plans to enter a rehabilitation program soon.[50]
[50]T67-68
76Although I have considerable reservations about the plaintiff’s accuracy and reliability as a witness, even if I were to accept his account and histories of anxiety symptoms, they are, in my view, relatively mild, and the majority of his complaints focus upon the pain and depression – neither of which conditions are said to be, by any medical commentators in the case, consequences of his Adjustment Disorder with Anxiety.
77The Panel’s finding of an Adjustment Disorder with Anxiety says nothing about the severity of that condition, but the Panel’s opinion that despite it, the plaintiff is capable of full-time work in a range of occupations – an opinion I must adopt and apply – shows that the impairment of the plaintiff’s capacity to work resulting from the Adjustment Disorder with Anxiety is not great.[51] In my view, the ability to work in a full-time capacity in, at least, eight occupations[52] also tells against a finding that the Adjustment Disorder with Anxiety is severe in the required sense.
[51]Up to the time of injury his work history had been sporadic; this is not a case of a lost career or vocation
[52]Of the occupations identified in the Panel’s answer to Question 13, a number would involve regular dealing with customers, and all would probably require reliability and consistency of attendance on a full-time basis.
78In my view, the plaintiff has not discharged the onus he bears of establishing that his Adjustment Disorder with Anxiety, is, when the required comparison is made, fairly described as being “more than serious to the extent of being severe”.[53]
[53]Mobilio v Balliotis (supra)
79For these reasons, the plaintiff’s application is dismissed.
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