Shengola v Inghams Enterprises Pty Ltd
[2009] VCC 553
•3 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-06-02784
| MUNEER SHENGOLA | Plaintiff |
| v | |
| INGHAMS ENTERPRISES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2008, 16, 17 and 24 February 2009 and 6 March 2009 |
| DATE OF JUDGMENT: | 3 April 2009 |
| CASE MAY BE CITED AS: | Shengola v Inghams Enterprises Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0553 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – serious injury as defined in paragraph (a) and paragraph (c) of the definition in ss.(37) – chronic pain syndrome – Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | - |
| For the Defendant | Mr J Ruskin QC with | Deacons |
| Mr B G Anderson | ||
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a back injury suffered by the plaintiff in the course of his employment with the defendant in mid April 2000 (“the injury”). S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a serious injury.
2 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function . . . (c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
3 The body function relied upon by the plaintiff for the purposes of paragraph (a) is his back.
4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.
5 The hearing of this matter was drawn out. On 23 October 2008, the hearing was adjourned at the request of the plaintiff to enable him to obtain further medical evidence to place before me. On 17 February 2009, the application had to be adjourned early as the plaintiff was extremely upset that his wife had appeared in video footage shown in Court and he was unable to continue with the hearing, and then and on 24 February 2009, the matter could not proceed on the next day on account of the unavailability of the Assyrian interpreter who spoke the same dialect as the plaintiff.
6 The plaintiff appeared in person, a difficult task given the complexities of serious injury applications. The Court was considerably assisted by Mr Ruskin, one of Her Majesty’s Counsel, who with Mr Anderson appeared for the defendant. He and his instructor provided considerable assistance to the plaintiff, consistent, of course, with their obligations to the defendant. Despite this and assistance from me, the plaintiff’s evidence and final address largely dealt with irrelevant issues such as his being accused of stealing chickens from his employer and the termination of his employment. On several occasions he became extremely agitated and emotional.
The Issues
7 It is not in issue that the plaintiff suffered the injury in the course of his employment with the defendant in mid April 2000. S.134AB(38)(j) of the Act requires me to assess whether at present the plaintiff is suffering from a serious injury. What is in issue is whether the plaintiff is at present suffering from a serious injury as defined in paragraph (a) or paragraph (c) referred to above, and as those definitions are amplified in sub-s.(38) and recent authorities of the Court of Appeal.
The Plaintiff’s Evidence
8 The plaintiff was born in Iraq and is now aged fifty. Between 1982 and 1991, he served in the Iraqi military as an account and administration officer. In 1991, he escaped Iraq and fled to Turkey. After time in a refugee camp, he arrived in Australia in April 1992 and became an Australian citizen in August 1994. He married in mid 1995 and has two sons from the marriage, aged eleven and nine.
9 After arriving in Australia, the plaintiff worked in a variety of jobs of a manual nature. He commenced employment with the defendant in February 1999 as a storeman and process worker, earning approximately $500 gross per week. In addition, in the twelve months prior to suffering the injury he worked overtime of approximately 81 hours. The plaintiff stated that his job with the defendant was heavy and arduous, involving heavy lifting and stacking. He states that before the injury he was fit and healthy. This is confirmed by his general practitioner, Dr Effat Farag, of the Stud Road Medical Centre, Dandenong, who states in a report of 20 September 2001 to the plaintiff’s then solicitors that between July 1993 and August 1999, the plaintiff had only consulted him on six occasions for an upper respiratory tract infection, anxiety and mild eye problems
10 On or about 12 April 2000, the plaintiff states that while working he was getting steadily increasing pain in his lower back. It seems that he may have suffered the injury a few days after 12 April 2000 but nothing turns on this. He consulted Dr Farag on 19 April 2000, who recommended that he rest for a few days, and placed him on light duties. He states that he told his employer that he could only work light duties and was asked to take his three weeks’ annual leave, which he did. The plaintiff said that he attempted a return to work between 23 May and 3 July 2000, when his employment was terminated.
11 The plaintiff states that since he suffered the injury he has constant pain and discomfort which has worsened over the past few years. He cannot drive or sit or stand for long periods without his back pain increasing. He states that he is very depressed and anxious about his injury and his limitations. He has become more aggressive towards his wife and children. He is not as social as he used to be. He used, on occasions, to cook for family and friends, which he no longer does. He now smokes and drinks alcohol to excess. He cannot sleep for longer than two hours without waking up in pain. He has difficulty reading and concentrating for a period in excess of fifteen minutes. He can no longer drive a manual car. He states that he can no longer run around and play soccer with his children. He takes various forms of medication.
12 As to work after the accident, he worked part-time for several hours a week checking stock at the Dandy Food Barn until October 2005, when he was replaced by a worker who was able to perform manual tasks. This is the only work he has performed since 3 July 2000. The plaintiff states that since 2004 he would have spoken to about 320 stallholders at Dandenong Market seeking employment, without success, and that since 12 July 2000 he has also been registered with a job agency. He states that he now has no capacity to work as a result of the injury.
Medical Evidence
13 Dr Farag, in his report of 20 September 2001, states that on 19 April 2000, the plaintiff presented to him with lower back pain. He was managed conservatively with non-steroidal anti-inflammatory drugs and painkillers. The plaintiff stated that his back pain was persisting and an x-ray of his lumbar spine was performed on 11 May 2000. A report from Mr Gary Speck, orthopaedic surgeon specialising in spinal disorders, to the plaintiff’s then solicitors dated 16 October 2001, states that this x-ray:
“… showed five lumbar vertebrae and anterior osteophyte formation at the T11/12, T12/L1 and L3-4 level consistent with early degenerative change.”
14 Dr Farag then had a CT scan performed on 29 May 2000, which showed, according to Mr Speck:
“… some bulging at the L3-4 and L4-5 discs but no evidence of nerve
compression.”
15 In his report of 20 September 2001, Dr Farag states that neither the x-ray nor the CT scan showed “significant pathology”.
16 Dr Farag referred the plaintiff to Dr Robert Brzozek, a musculo-skeletal physician. He saw the plaintiff on 29 November 2000 and again on 9 January 2001. In a report to the plaintiff’s then solicitors which was undated but written between the two examinations, he stated that he thought the CT scan of 29 May 2000 did not show anything “clinically significant”. He stated:
“The diagnosis was non-specific left greater than right low back pain, referring to the left posterior thigh, probably somatic in nature, the pain generator either the disc or the posterior vertebral structures. There was an abundance of signs of inorganic disease as well as numerous yellow flags, which mitigated against a good prognosis.
MANAGEMENT
I recommended that he commence some flexion and extension stretches, as if you do not work a muscle, it will shorten and then it will become increasingly difficult to stretch. I also recommended that he see a psychologist to deal in particular with the significant change to his lifestyle and his future income streams, his anger towards his employer, and his chronic pain. I also organised diagnostic left L4 and L5 medial branch blocks with Marcaine after which we will see how much of his pain is coming from the posterior facet structures. If this test is negative in reducing his pain, then one can surmise that the pain generator is likely intra-discal.
In answer to your questions, the injury appears to have been caused or aggravated by the worker’s employment, there is no present capacity for work, however, I would expect improvement over one to two years from the date of injury. At this time the incapacity would not, in my opinion, be assessed as permanent. The prognosis, which pertains to ‘Yellow Flags’, is poor. I expect there will be considerable future medical treatment – if the dorsal ramus branch blocks are negative, he will need extensive physical and psychological rehabilitation including pain management and functional restoration.”
17 In a report to Dr Farag dated 10 January 2001, he stated:
“Mr Shengola returned on 9-1-01 reporting no improvement from left L5
and L5 median branch blocks using Marcaine or Xylocaine.
On examination, although he can sit, stand and walk perfectly well, when asked to flex or extend he cannot. Reviewing signs were an organic back disease again is positive (sic).
This man’s pain is likely intra-discal. There appears to be significant functional overlay and he has adopted a sick role.”
18 Dr Brzozek organised an MRI scan of the plaintiff’s lumbar spine on 9 April 2001. Mr Speck commented upon it as follows:
“An MRI scan of the lumbar spine performed at Victoria House Medical Imaging at the request of Dr Brzozek on the 9th April 2001 showed disc desiccation throughout the lumbar spine from T12/L1 to L5/S1 with a disruption within the T12/L1 disc which did not compress any nerve structures and annular disruption at the L4-5 level.”
19 Mr Speck saw the plaintiff on one occasion, 28 May 2001, at the request of Dr Farag.
20 In a report to Dr Farag dated 29 May 2001, he states:
“His symptoms are associated with a number of non-organic features and
there is no specific neurologic (sic) deficit.
The MRI scan shows degeneration and desiccation of multiple discs in his lumbar spine.”
21 He did not think any surgical treatment was warranted and recommended rehabilitation at Cedar Court.
22 In a report of 16 October 2001 to the plaintiff’s then solicitors, he stated:
“When distracted there was no restriction of straight leg raising but when specifically tested on the left it was less than 30o and on the right 60o with back pain being produced. There was no evidence of sciatic or femoral nerve irritability.
. . .
A diagnosis was made of a soft tissue injury to the lumbar spine related to his work injury in April 2000 with non-organic features being evident on examination and the probability of the work incident having produced a disruption within one of the already degenerative discs, most likely at the L4-5 level.”
23 When writing his report of 20 September 2001, Dr Farag had received reports from Dr Brzozek and Mr Speck and repeated their diagnoses of intradiscal dysfunction. He concludes his report:
“In my opinion Mr Shengola’s injury is definitely related to the type of work he was doing. Future capacity for work is not really predictable in the time being and that would be determined in the future.”
24 In a report of 9 October 2003, he repeated the diagnosis of intradiscal dysfunction and stated that Mr Shengola is:
“limited on lifting up to 5 kg only, and no frequent bending or prolonged
walking.”
25 He noted that the plaintiff was attending Cedar Court for rehabilitation and physiotherapy and on non-steroidal anti-inflammatory drugs.
26 Mr Robert Southby, neurosurgeon, examined the plaintiff on 31 May 2001 at the request of his then solicitors. In a report of 4 June 2001, he states:
“In summary, this man has longstanding degenerative changes in both the lower thoracic and lumbar spines. There are no objective clinical signs of any associated spinal cord or nerve root involvement. He does, however, display a number of non organic features.
I suspect that work over a number of years could have contributed to the development of the changes, but they were not rendered symptomatic until he was injured on 18 April 2000. The prognosis appears to be rather poor, especially when one takes into account the presence of non organic features and the failure of various forms of conservative treatment to lead to any improvement.
He does not appear to be capable of any work at present. On a long- term basis, however, I would regard him as permanently incapacitated for tasks involving repeated twisting of the trunk, repeated bending, repeated heavy lifting or repeated jolting of the spinal column.
… .”
27 Mr Mithu Palit, rehabilitation specialist of Cedar Court, saw the plaintiff on 16 July 2001 on reference from Dr Farag. He last saw him on 3 September 2001. In a report to Dr Farag of 17 October 2002, he states:
“… He was unable to perform any meaningful movements of his spine without considerable distress. He was unable to perform single leg stance or a squat. Any degree of straight leg raising induced considerable pain in his spine.
I have subsequently discussed his case with the therapist that initially assessed him and find that firstly, his condition is no different and secondly, given the propensity for him to flare, there is no meaningful rehabilitation that he could participate in through Cedar Court.
My conclusion is that active treatment at this point in time would only lead to pain flares and deterioration of the function that he has. I think it is extremely unlikely that rehabilitation would cure him of his pain. My advice to him has been that he remains as active as possible, he avoid narcotic or opioid analgesia as much as possible and to continue his walking programme.
… .”
28 In a report to the plaintiff’s then solicitors dated 28 September 2001, he stated:
“With regard to his present and future capacity for work, my opinion is, given his very low function in his day to day activities and his performance on our physical assessment, I do not believe he would be able to return to his previous work. His high pain levels, length of time off work and limited proficiency with English make prospects of future employability unlikely.”
29 Mr Michael Pullar, neurosurgeon, examined the plaintiff in November 2002 at the request of Dr Farag. In a report to him dated 28 November 2002, he states:
“My overall impression is that this man has a chronic pain syndrome related to a musculo-skeletal injury – possibly to the L4-5 disc. … There are a lot of non-organic features to his presentation.”
30 Mr T J Russell, general trauma and vascular surgeon, examined the plaintiff in August 2000 at the request of the defendant’s insurers. In a report to it of 7 August 2000, he states:
“This gentleman was short. He moved well around the room. He was a very intense gentleman. His examination showed thoracolumbar spine flexion to 90 degrees touching near his ankles, extension 35 degrees, lateral flexion left and right 40 degrees, rotation to both sides 45 degrees plus.
Straight leg raising both sides 90 degrees. Reflexes were intact. He had no trouble extending either knee from the seated position. He could extend both and hold both at full extension. Sensation and power were intact.
CONCLUSION.
This gentleman has nothing much to find on examination and a normal CT Scan. He relates a very vague history of back trouble. He seems to indicate he thinks it is unfair that he is expected to do so much work where the other people in his department do so little and despite complaints about this nothing has been done to effectively remedy the situation. He also complains that his company has reduced the number of staff in his department.
The patient has no indication of any injury on x-ray or examination which would explain his symptoms and no indication of anything in the way of a significantly work related injury which would cause a requirement for his time off work or his current treatment.
The patient’s condition therefore on the information available to me is not related to employment in a significant way. He is currently suffering a condition which shows good back function. He complains of some symptoms but has excellent back movements. He is currently fit to return to work in normal work within normal industrial guidelines. He should avoid as should all employees excessive bending and lifting with a poor technique. The patient requires reassurance. Treatment is not required apart from that. The prognosis is good.
This gentleman perceives he has been treated unfairly by his employers. The patient’s complaints should be addressed regarding his current employment but there is no evidence today to indicate any identified injury in this gentleman.”
31 Mr Russell was forwarded a copy of the undated letter from Dr Brzozek. In a report of 19 February 2001, he states:
“There is nothing in the report from Dr Brzozek which would change in (sic) opinion and in fact it reinforces my opinion. The patient’s condition is not well explained on the basis of physical injury. He is a gentleman who has a number of psychological factors which are in play. Dr Brzozek quite understandably as the referred treating practitioner has been reluctant to not pursue treatment but all in all Dr Brzozek’s report should be read as indicating the patient has significant features indicating non physical overlay and in the presence of a normal CT Scan and such an extremely good examination finding when I saw him it would be very difficult to propose any real physical injury would explain his symptoms. The patient does not have any identified injury which would adequately explain his symptoms. I point out that there is a quite marked disparity between the patient’s movements when I saw him compared to the movements which were found by Dr Brzozek. Such a change is very difficult to understand apart from the effect of non physical factors. When I saw him he had excellent function which was inkeeping with his CT Scan results and his overall situation of widespread symptoms without any particular pattern.
In summary I believe that Dr Brzozek’s report would tend to reinforce my opinion as expressed in my report.”
32 Mr Geoffrey Klug, neurosurgeon, examined the plaintiff at the request of the defendant’s solicitors on 19 October 2001. In a report of that date to the defendant’s solicitors, he states:
“He was of short stature and generally satisfactory physique. There did not appear to be any obvious spinal deformity. When I asked him to move both the cervical and lumbar regions of his spine there was a gross restriction of the expected range of movement, particularly in the lumbar region. He would only move this portion of his spine a few degrees in any direction and claimed that any movement beyond that range produced severe pain.
… .”
33 His report indicates that he was aware of the x-ray, CT scan and MRI scan referred to above. He continued:
“I found it difficult to define the exact nature of this person’s disorder. I found him to be a difficult historian and to obtain a clear indication of his condition since the time of the alleged injury, any medical reports, particularly from his treating practitioners would be of some value.
This worker claims that he did injure his back during the course of his employment in August of 1999. I feel it is likely that at that time he probably did sustain a musculo-ligamentous strain. I feel it is improbable that he did sustain an injury of one or more intervertebral discs. He claims there has been absolutely no improvement in his condition and that he is continuing to worsen.
On examination the impression was of a severely disabled person. He was only able to walk in a very slow manner, he had virtually no movement of his thoraco-lumbar spine and he exhibited marked restriction of straight leg raising. I was not convinced however of any objective neurologic abnormality.
Various imaging studies have been undertaken and these do not show any significant changes. I cannot equate his condition at the present time to the findings noted on the various studies including an MRI and CT scan.
. . .
It would be my opinion that there is no real physical reason why this person could not undertake some forms of employment. I feel it would probably be inappropriate for him to undertake employment that did involve repeated bending and heavy lifting. As indicated, his presentation would suggest that work was not within his capabilities and I feel that such relates to factors other than a physical impairment.
In view of his widespread symptoms I feel it would probably be appropriate to obtain an opinion from a rheumatologist. It is possible also that an opinion from a psychiatrist would be of some benefit.
… .”
34 In a supplementary report dated 22 October 2001, after reviewing further medical reports, he confirms the opinions expressed in his earlier reports and states:
“The evidence would seem to suggest in various documents that there is a very substantial functional component to this person’s overall presentation and that any organic contribution is of a relatively mild degree.”
35 Mr Klug again examined the plaintiff on 8 April 2002. He notes that an interpreter was then present. In a report of 12 April 2002 to the defendant’s solicitors, he states:
“He walked into my examination room in a slow manner. He did not exhibit a specific limp. He was able to dress and undress and climb on and off the examination couch but again performed these tasks in a somewhat tentative way.
I examined his spine in the upright position. In the cervical region there was no deformity and the range of movement appeared to be normal. In the lumbosacral region there was no deformity but there was a significant restriction of the expected range of movement. Using a gonimeter I noted that flexion was only possible to 30o and extension to 15o. Right lateral flexion was possible to 30o and left lateral flexion to 20o while rotation to each side was limited to just beyond 20o.
. . .
When I examined this person on this occasion I noted a full range of movement of the cervical spine which contrasts to the findings noted when I last interviewed and examined him. On formal testing there was still a substantial restriction of the expected range of movement of the thoracolumbar spine. I was unable to detect any evidence to suggest he was suffering from a radiculopathy affecting function of any of his four limbs.
On this occasion you provided me with a video which related to a period of surveillance, such taking place on 28th and 29th of June, 2000.
I examined this good quality video recording which showed this person undertaking a large number of activities. Throughout the video I did not detect any evidence of (sic) suggest that he was in any way disabled. He appeared to cope with all activities including the ability to bend over, such as when he was inflating the tyres of his vehicle, driving a car and walking and on occasions running in what appeared to be a completely free manner.
The findings on the video recording would not be compatible with the findings I noted when I examined this person on 19/10/2001 and more recently on 08/04/2002.
I would therefore have to conclude that between the period of surveillance and when I first examined this person subsequently there has been a substantial deterioration in his condition. The other explanation was that the findings I detected were not a true reflection of this person’s physical condition on the two occasions of examination.
I have noted certain inconsistencies in the examination between the two times I saw him. I feel it is difficult to explain such changes on an organic basis and overall I saw no reason to suspect that this person was suffering from any serious physical injury.”
36 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 4 April 2005 at the request of the defendant’s solicitors. In a report to the solicitors dated 18 April 2005, he states:
“Plain x-rays of the lumbar spine show no obvious disc space narrowing. MRI scanning of the lumbar spine carried out in April of 2001 is reported to show degeneration of the L4/5 disc with some bulging of this disc. There is evidence of early degeneration affecting other lumbar discs. There is no evidence of nerve root entrapment.
Mr Shengola describes the onset of low back pain during the course of his work as a process worker. I believe that Mr Shengola aggravated pre-existing and naturally occurring degenerative disc disease of the lumbar spine at the L4/5 level during the course of his work. This soft tissue injury would account for some of his ongoing low back pain. It is evident that Mr Shengola has developed a chronic pain syndrome as a consequence of this soft tissue musculoskeletal injury. A chronic pain syndrome involves a complex physical and psychological reaction in response to injury and/or pain. The initial trigger for it involuntary. In my clinical experience a classic involuntary trigger involves an employee feeling that they are not receiving the support of their employer or perhaps feeling that an injury or condition is not being taken as serious. In Mr Shengola’s view his work was arduous and he asked for assistance. He feels that this assistance was denied. He feels that he has sustained a significant injury to his back and that the seriousness of it has not been acknowledged by his employer. He feels that he was mislead (sic) in terms of the availability of light duties work. A chronic pain syndrome involves the constancy and intensity of ongoing pain being out of proportion to the injury sustained or to any underlying condition. Rapidly it becomes associated with depression, a loss of self esteem and a general decompensation of the patient in everyday life. Mr Shengola feels that he has worked hard all of his life and that often he has worked in employment that has involved six days of work per week and more. Currently he describes himself as being disabled and not able to carry out physical activity. His pain has become unrelenting. The constancy of the pain and the inability to carry out ordinary activity are features of a chronic pain syndrome secondary to a soft tissue injury.
I would agree with Mr Shengola’s treating orthopaedic surgeon that surgical intervention is not an option in his case. I would agree with Mr Shengola’s comment that such surgery could well make his current condition worse. The appropriate treatment for him is a low impact exercise and fitness programme. He must increase his activity in everyday life and I agree that he should walk regularly. It is imperative that he returns to useful and satisfying employment if his current condition is to improve. I do not believe that formal rehabilitation centres will add anything over and above advice from a single medical practitioner interested in treating chronic pain and a self managed exercise and fitness programme. Clearly it will not be easy for him to gain employment but if he is left in limbo then his depression and low self esteem will flourish.
Clinical examination reveals objective signs of abnormal illness behaviour consistent with a chronic pain syndrome. There is no objective evidence of myotomal or dermatomal neurological deficit affecting the left lower limb. Radiologically there is no evidence of nerve root entrapment or of major disc prolapse.”
37 Mr Dooley has provided a further report to the defendant’s solicitors dated 9 February 2009. He was asked to comment upon a CT scan of the plaintiff’s lumbar spine performed on 17 July 2008 and an MRI scan of 8 January 2009. He did not re-examine the plaintiff. He states:
“CT scanning of the lumbar spine on July 17, 2008 reports minor annular disc bulging at the L4/5 level. More extensive disc bulging is noted at the T12/L1 level. MRI scanning of the lumbar spine was carried out on January 8, 2009. It notes a central disc protrusion at the T12/L1 level. It notes mild degenerative change at the L3/4 and L4/5 levels. It notes mild central canal stenosis at the L4/5 level.
Both CT scan and also the MRI scan show no nerve root compression. These findings would not cause me to alter my views outlined in the report dated April 18, 2005. The reasons for this are as follows. On clinical examination at that time there was no evidence of objective neurological deficit affecting the lower limbs. Radiologically there was no evidence of nerve root compression. It is my view that clinically there was evidence of a chronic pain syndrome. …”
38 Mr Michael Kahn, orthopaedic surgeon, examined the plaintiff at the request of Dr Wang of the Stud Road Medical Centre on 17 December 2008 and 14 January 2009. He reported to Dr Wang on 11 January 2009. It appears he had not seen the MRI of 8 January 2009. In the report he states that the plaintiff has “a well-entrenched chronic pain syndrome” and also notes his chronic anxiety and depression. He states:
“There did not appear to be any significant neurological involvement or spinal stenosis. … I do not consider that he is suitable for factory work involving excessive bending, twisting and turning of his spine or lifting heavy weights.”
39 He agreed with the opinion of the Medical Panel which had diagnosed the plaintiff’s condition as being “flare-up of lumbar disc degeneration but without radiculopathy”.
40 The only psychiatrists to examine the plaintiff were Dr Albert Kaplan and Dr Leon Fail.
41 Dr Kaplan examined the plaintiff at the request of his then solicitors on 25 September 2001. In a report dated 26 September 2001, he states:
“Mr Shengola has developed mild symptoms of depression and anxiety (Adjustment Disorder with mixed anxiety and depressed mood) as a result of his injury, his chronic pain and the restrictions imposed upon him by his pain. His frustration has been expressed in the form of his uncharacteristic irritability and diminished capacity to cope with stress and noise. He suffers from insomnia and his appetite has been affected. He lacks drive and energy, and his concentration is impaired. … Mr Shengola’s depression and anxiety are likely to persist as long as he suffers from pain and as long as he remains physically disabled.”
42 Dr Fail examined the plaintiff on 14 November 2001 and 27 March 2002 at the request of the defendant’s solicitors and reported to them on 15 November 2001 and 4 April 2002. He noted that on the second occasion an Assyrian interpreter was present. In his first report he states:
“I believe the Claimant suffers from a chronic pain syndrome.
By this I mean that psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain.
I base this diagnosis on the medical consensus that there is large functional components and that any organic contribution is of a relatively mild degree. It is difficult to know what the psychological factors may be, however it probably involves his resentment at being dismissed (like a dog), and his feelings of impotence and helplessness psychologically, which has probably been translated into his actual sexual impotence because he no longer feels in control and has lost his ‘manhood’.
I believe that this is a secondary psychiatric impairment as this is the Claimant’s idiosyncratic reaction to the original physical injury and hence arises as a consequence of and secondary to the original physical injury.
. . .
The Claimant appears to have no current work capacity due to his perception of his chronic pain. He may benefit from retraining, in particular retraining to do office type work which he must be capable of doing taking into account his past history. I believe he would probably need schooling in English first.
. . . .”
43 In his second report, he states:
“My initial diagnosis was of a chronic pain syndrome, meaning that psychological factors were complicating and exaggerating his perception of pain.
However the diagnosis of chronic pain syndrome excludes the possibility that the Claimant is consciously exaggerating his disability and that there is no conscious deception involved.
Having viewed the video where it becomes quite apparent that the Claimant is quite capable of running and bending, it does appear that he is exaggerating his physical disability. Hence this does cast doubt on the diagnosis of chronic pain syndrome. However it is possible that the Claimant is disabled and does have genuine perception of pain, otherwise he would not be pursuing alternative health therapies. It is possible that there is a mixture of a genuine disability with a conscious exaggeration. After all, if the Claimant was wanting to be outright deceptive then one would have imagined that he would have pretended to maintain his orthodox medical treatment.
He did also seem to be quite genuinely excitable and tense in the consultation. However this may well be due to stresses in his marriage and dealing with two young children. He seemed to particularly emphasise his intolerance of the children. His emphasis and understanding was to illustrate his mental state and this being secondary to his physical pain and incapacity. However his irritability and intolerance of his children may well be the primary cause of his mental distress.
. . . .”
44 The plaintiff was examined by a Medical Panel consisting of a psychiatrist, an orthopaedic surgeon and a general practitioner, in May 2002. In the Panel’s Reasons for Opinion dated 21 June 2002, the Panel stated that it viewed surveillance videos of the plaintiff which showed him walking in a normal manner. The plaintiff stated that he had been encouraged to walk by his treating doctor. The Panel stated that the worker had suffered an aggravation of mild lumbar disc degeneration and that his back condition was “mild” and that he was fit for employment which “avoids heavy lifting and repeated pushing/pulling activities”. It stated that the plaintiff was suffering from “a mild Adjustment Disorder with Depressed Mood that had arisen as a consequence of the physical injury”. It was the Panel’s opinion that his psychiatric condition did not affect his capacity for work. This opinion, of course, forms part of the medical evidence before me but is not binding upon me.
Discussions and Conclusions
45 In determining whether the plaintiff has suffered a serious injury as defined in paragraph (a) or paragraph (c) of the definition of serious injury contained in s.134AB(37), ss.(38) requires me to focus upon the consequences of the injury suffered. I note the provisions of ss.(38)(h) and (i) and also the comments in Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167, at paragraphs 16-29, per Ashley JA, with respect to the approach to be taken where there is “a physically-based impairment” with “supervening psychological overlay”. I also note that I am to reach my decision based upon all the evidence before me rather than conducting “a trial by doctors’ opinions”: (Jayatilake at paragraph 17).
46 As is apparent, there is a dearth of recent medical examinations and reports.
47 So far as the claim that there is a serious injury as defined in paragraph (a) is concerned, the only recent examination is that of Mr Kahn, who states that the plaintiff is suffering from “a well-entrenched chronic pain syndrome”. The next most recent examination is that of Mr Dooley, who examined the plaintiff on 4 April 2005, who also was of the opinion that the plaintiff has developed a chronic pain syndrome as a consequence of a soft tissue musculoskeletal injury. Mr Pullar, as long ago as November 2002, also expressed the view that the plaintiff was suffering from a chronic pain syndrome, as did Dr Fail, in November 2001 and perhaps in April 2002.
48 As indicated, Dr Fail described chronic pain syndrome as a condition where “psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain” or where “psychological factors were complicating and exaggerating his perception of pain”. Mr Dooley has stated that “a chronic pain syndrome involves a constancy and intensity of ongoing pain being out of proportion to the injury sustained or to any underlying condition.” The diagnosis of chronic pain syndrome is consistent with earlier medical reports on the plaintiff’s physical condition which suggest a minor physical injury with strong emphasis on inorganic features of the plaintiff’s presentation.
49 On the basis of the medical reports before me, spanning a number of years as they do, I am satisfied that the plaintiff presently suffers from a chronic pain syndrome as a consequence of a soft tissue musculoskeletal injury as Mr Puller and Mr Dooley state or as a flare-up of lumbar disc degeneration as Mr Kahn suggests.
50 So far as the definition of “serious injury” contained in paragraph (c) is concerned, the only medical evidence before me is that of Doctors Kaplan and Fail, and the Reasons for Opinion of the Medical Panel dated 21 June 2002. There is no recent medical evidence as to the plaintiff’s present mental condition. The reports before me, such as they are, certainly do not suggest “permanent severe mental or permanent severe behavioural disturbance or disorder”. Further, the Medical Panel’s Reasons state that the plaintiff’s psychiatric condition would not affect his capacity for work.
51 The medical evidence before me also needs to be considered in the context of other matters concerning the plaintiff to which I now turn.
52 As appears from several of the medical reports, the plaintiff feels that he was treated unjustly by the defendant in the course of his employment, and in respect of the termination of his employment. This was apparent during the hearing of the application and in the plaintiff’s final address, where words such as “revenge”, “conspiracy”, “power” and “punishment” were used. Various documents before me and comments made in the course of the hearing indicate that the plaintiff felt there was a conspiracy abroad to defeat his application. Mr Dooley’s comments in his report of 18 April 2005 that chronic pain syndrome is often triggered by a feeling of lack of support of an employer would appear pertinent.
53 The plaintiff told Dr Kaplan on 25 September 2001 that from approximately mid 2000 he experienced erectile dysfunction. During the course of the hearing, the plaintiff referred to this condition and, it was apparent that, not surprisingly, it was causing him considerable distress. However, there is no evidence before me to link this condition with what occurred at work in mid April 2000.
54 It is clear to me that the matters referred to in the preceding two paragraphs are of great significance to the plaintiff. However, they are not relevant to the serious injury application before me.
55 The plaintiff complained that at examinations performed by Messrs Russell and Klug and Dr Fail, an interpreter was not present. I note, however, that at the second examination by Mr Klug and Dr Fail an interpreter was present.
56 Just prior to commencing his final address on 24 February 2009, Mr Ruskin suggested that the plaintiff should be told that he had the right to cross- examine doctors who had examined him on behalf of the defendant. I did this, while indicating that it was unusual in applications of this nature for a plaintiff to call defendant’s doctors for cross-examination. In the course of his final address on 6 March 2009, Mr Shengola suggested that I should have told him of his rights at an earlier stage of the hearing. In response to this suggestion, the following points are relevant. Her Honour Judge Davis ordered on 23 November 2007 that any notice of intention to cross-examine witnesses were to be served no later than 28 days prior to the hearing, which he had not done. As I mentioned to the plaintiff, the defendant’s doctors are normally not called for cross-examination in applications of this nature. Throughout the hearing, the plaintiff was not shy of asserting what he saw as his rights. Finally, and most importantly, I have no doubt that Mr Ruskin, given the extent to which he was prepared to accommodate the plaintiff, would have been prepared to allow the plaintiff to call any defendant’s doctors for cross- examination even though notice had not been given and adjournment might be necessary to accommodate this. Otherwise, it would have been pointless for Mr Ruskin to raise the matter.
57 I note the comments of Mr Klug and Dr Fail upon video footage taken of the plaintiff on 28 and 29 June 2000 which they state are inconsistent with restrictions in movement alleged by him. Having viewed this video footage, I can only agree with them. I also viewed video footage taken during 2007 and 2008 on several occasions which shows the plaintiff walking briskly without any apparent restriction in movement and, on one occasion, squatting to put air in a car tyre. I also note various references in medical reports to the plaintiff’s restrictions in movement being inconsistent with pathology reports. In the circumstances, I have severe misgivings as to the plaintiff’s evidence as to his present restriction on activities and pain levels.
58 In all the circumstances, so far as pain and suffering is concerned, I am not satisfied that the pain and suffering consequence of the plaintiff’s chronic pain syndrome “when judged by comparison with other cases in the range of possible impairments or losses of a body function” can be “fairly described as being more than significant or marked, and as being at least very considerable”.
59 So far as the plaintiff’s mental condition is concerned, I am not satisfied that the pain and suffering consequence “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders” can be “fairly described as being more than serious to the extent of being severe”.
60 So far as loss of earning capacity is concerned, I note the opinion of Mr Kahn that the plaintiff was capable of factory work with some restrictions which is fairly similar to the opinion of the Medical Panel in June 2002. The opinion of Mr Kahn and the opinion of the Medical Panel appear to be based on the physical condition of the plaintiff’s back rather than his mental condition and what heavy factory work might do to the plaintiff’s lower back. Thus these opinions, so far as they relate to loss of earning capacity consequences, are only relevant for the definition of “serious injury” contained in paragraph (a). The only evidence before me with respect to loss of earning capacity consequences with respect to the definition contained in paragraph (c) is that of the Medical Panel which clearly does not assist the plaintiff.
61 As mentioned, the plaintiff states that since 2004 he has spoken to innumerable stallholders at the Dandenong Market seeking employment. The availability of employment, however, is not the crucial matter I have to consider. Rather, I have to consider the plaintiff’s earning capacity. The plaintiff stated that he was capable of working as a bag checker at the exit of a supermarket. The plaintiff is required to satisfy me that he has suffered a loss of earning capacity of 40 per cent or more. The plaintiff’s “without injury” earnings at the time he sustained the injury were, with overtime, approximately $27,000 gross per annum. This, in my view, “most fairly reflects the worker’s earning capacity had the injury not occurred”. The plaintiff has not produced any evidence that he has a loss of earning capacity of 40 per cent or more of this sum.
62 The plaintiff’s application thus fails.
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