Subotic v Victorian WorkCover Authority
[2018] VCC 990
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05990
| GORAN SUBOTIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2018 |
DATE OF JUDGMENT: | 29 June 2018 |
CASE MAY BE CITED AS: | Subotic v Victorian WorkCover Authority |
MEDIUM NEUTRAL CITATION: | [2018] VCC 990 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – whether the pain and suffering and loss of earning capacity consequences are “serious” – secondary psychiatric injury – pain and suffering consequences conceded – whether loss of earning capacity consequences are “severe”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms M Tait | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr J Simpson | Russell Kennedy Pty Ltd |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-seven-year old man. He suffered injury to his lower back in the course of his employment with LJM Transport Pty Ltd on 31 December 2015. As a direct consequence of suffering that injury, he suffered a secondary psychiatric injury.
2 The plaintiff has applied for leave to bring a proceeding for both pain and suffering and loss of earning capacity, both with respect to the lower back injury and the psychiatric injury.
3 Mr R McGarvie QC appeared with Ms M Tate of counsel for the plaintiff. Mr J Simpson of counsel appeared for the defendant.
The issues
4 The defendant denied that the pain and suffering and loss of earning capacity consequences of the lower back injury are “serious”. It conceded that the pain and suffering consequences of the psychiatric injury are “severe”, but denied that the loss of earning capacity consequences are “severe”.
5 I will deal with the applications in order of the occurrence of the injuries.
The lower back injury
6 The plaintiff was employed by LJM Transport Pty L as a truck driver. On 31 December 2015, he suffered a lower back injury. He performed a number of tasks that day which caused the injury:[1]
[1]The plaintiff's first affidavit at Plaintiff’s Court Book (“PCB”) 17
· A container was loaded onto the trailer attached to his truck. As he pulled the curtains fixed around the trailer, he felt a sharp pain in his lower back. The curtains were stiff and difficult to move.
· After opening the curtains on the container, he noticed about a dozen tyres in the container which he moved by bending over to lift the tyres, which he subsequently rolled out of the side of the container. He was met with further pain in his lower back.
· Subsequently, the plaintiff drove the truck and trailer, performing deliveries, before returning to the employer’s depot in Sunshine. The plaintiff developed further pain, extending down his right leg, while driving the truck and performing the deliveries.
7 The defendant conceded that the plaintiff had suffered a compensable injury. Despite that, the defendant cross-examined the plaintiff on his account of the occurrence of his lower back injury.[2] The reason for that was because when Dr Gary Davison, occupational physician, examined the plaintiff on 28 January 2016, he recorded a history which is absent of any reference to the curtains and the tyres.[3] Furthermore, the plaintiff completed a Workers’ Injury Claim Form dated 13 January 2016 in which his account of how he was injured has a similar absence of those facts.[4] The plaintiff was emphatic that he did inform Dr Davison of all of the relevant tasks he performed which he believes caused his lower back injury.[5]
[2]Transcript 18-21
[3]Defendant’s Court Book (“DCB”) 37. In a supplementary report dated 18 April 2016 at DCB 46-47, Dr Davison said that he was not given the history contained in the plaintiff’s first affidavit
[4]DCB 1-2
[5]Transcript 21
8 In any event, I was not invited by the defendant to make any particular findings regarding the actual tasks performed by the plaintiff which were implicated in the causation of his lower back injury. Furthermore, it was not clear to me whether the cross-examination was intended to go to the plaintiff’s creditworthiness or reliability. I assumed that was its real purpose.
9 The plaintiff first obtained medical treatment on 12 January 2016 from Dr Desmond, general practitioner. Dr Desmond noted the following:
“… He attended with strong back pain with bilateral referred pain to the left hip and the right knee and foot. His pain was worse with standing and sitting, and it would ease slightly if he continued to vary his posture … .”[6]
[6]PCB 40
10 Subsequently, Dr Desmond prescribed the plaintiff painkilling medication. He referred him to have a CT scan. The plaintiff subsequently had an MRI scan. The CT scan did not demonstrate any particular abnormality. The MRI scan demonstrated a ligamentous strain and a small posterior central/left paracentral disc protrusion at L5-S1, apparently without any neural impingement.
11 Dr Desmond referred the plaintiff to Dr Hor, rheumatologist, who the plaintiff first saw on 19 February 2016.[7] The plaintiff told Dr Hor that he was experiencing lower back pain, left lateral hip pain and pain extending down his right leg into his right knee and foot, which Dr Hor considered was neuropathic pain. Initially, Dr Hor considered that the plaintiff had clinical features of discogenic lower back pain. He referred him to have an MRI scan. He prescribed him Lyrica, prednisolone and Naproxen for pain relief. At the time he last saw the plaintiff on 26 February 2016, he considered that the plaintiff had suffered a lumbar back strain with symptoms which were suggestive of sciatica.
[7]PCB 55-56
12 Dr Desmond then referred the plaintiff to Mr Aliashkevic, neurosurgeon, who the plaintiff first saw on 22 March 2016.[8] He did not consider that the plaintiff required surgical intervention. He referred him to a number of specialists, one of whom was Dr McCallum, pain specialist. It would appear that Dr McCallum then took over the plaintiff’s treatment.
[8]PCB 43-44
13 It would appear that Dr McCallum first saw the plaintiff on 5 December 2016. Dr McCallum oversaw the plaintiff’s attendance at a pain rehabilitation program. He summarised his treatment of the plaintiff in a comprehensive report dated 29 April 2018.[9] He considered that the plaintiff needed to cease his use of Palexia, which is an opioid, because he did not think the use of an opioid would be of any long-term benefit to him. He recommended that he return to his general practitioner and try a course of Lyrica for pain relief; that he undertake hydrotherapy twice a week, and that he undertake exercise such as walking.
[9]PCB 69-72
14 Dr McCallum considered that the lower back injury had an organic basis. He added that it was probably discal in nature, consistent with the MRI scan, and also muscular. He considered that it would be very difficult for the plaintiff to perform work which involved “repetitive bending, lifting and twisting” because of the potentiality for an exacerbation of his lower back pain.
15 Dr McCallum also commented on the psychological effects of the plaintiff’s reaction to his lower back injury. I will return to this when I deal with the evidence of the onset of the secondary psychiatric injury.
16 The plaintiff was examined by a number of medical specialists on a medico-legal basis. The first in time was Mr Brownbill, neurosurgeon, who examined the plaintiff on 13 September 2016. He considered that the plaintiff had suffered a soft tissue injury to the structures of his lumbar spine with possible L5-S1 intervertebral disc involvement without any neurological abnormality. He considered that he was capable of undertaking a graded attempt to return to work, so long as he avoided heavy lifting or forced spinal mobility.[10]
[10]PCB 91-96
17 The next is Mr Awad, neurosurgeon, who examined the plaintiff on 16 September 2016. He considered that the plaintiff had suffered an aggravation of an L5-S1 spondylosis and a traumatic ligamentous strain of the lumbar spine. He considered that the plaintiff was unfit for his pre-injury employment, but would be fit for extremely sedentary work three hours per day, two or three days per week with restrictions on the requirement for him to sit, stand and to avoid pushing, pulling, bending and twisting.[11]
[11]PCB 98-100
18 Mr Awad reviewed the plaintiff on 25 August 2017. His diagnosis did not change. He considered that the plaintiff was no longer fit for any alternative work. If he was fit for any work, he would impose restrictions on the requirement for the plaintiff to lift, push, pull, bend, twist and perform repetitive motions of his spine, as well as a restriction on sitting and standing.[12]
[12]PCB 101-104
19 The next is Mr Flanc, vascular and general surgeon, who examined the plaintiff on 5 October 2016. He considered that the plaintiff had suffered a small disc prolapse at the L5-S1 level which was amplified by the development of a Chronic Pain Syndrome. He considered that the intermittent right leg pain might have been evidence of nerve root compression, but he considered that it was probably referred pain. He considered that the plaintiff had no capacity to return to his pre-injury work and otherwise had no current work capacity.[13]
[13]PCB 105-114
20 The next is Dr Macbeth, occupational and environmental physician, who examined the plaintiff on 4 September 2017. She considered that the plaintiff had suffered a small posterior central/left paracentral disc protrusion at L5-S1 level without nerve root compression, and a minor strain of a ligament at L4-5, and right leg pain. She considered that the plaintiff had suffered a Chronic Pain Disorder and an Adjustment Disorder consistent with the diagnosis made by a psychiatrist. In relation to the plaintiff’s lower back injury alone, she considered that the plaintiff was not fit for his pre-injury work, but was fit for part-time sedentary work with similar restrictions which other medical practitioners have referred to. She also considered that he would require retraining.[14]
[14]PCB 123-134
21 Dr Davison examined the plaintiff for the defendant on 28 January 2016. He considered that the plaintiff had suffered an intervertebral disc injury with probably irritation of the right L5 nerve root. At that early stage, he did not consider that the plaintiff had capacity to return to work.[15]
[15]DCB 36-41. Dr Davison provided a supplementary report dated 18 April 2016 at DCB 46-47 which went more to the question of whether the plaintiff had suffered a compensable injury, and in what circumstances
22 The defendant also had the plaintiff examined by Dr Wood, sport and exercise medicine physician, who examined the plaintiff on 29 November 2017. He considered that the plaintiff had a maladaptive response to the development of low back and right leg pain. Interestingly, he considered that the plaintiff needed reassurance “that there is no major structural problem in his lower back to account for his ongoing pain”.[16]
[16]DCB 79
23 Dr Wood provided a supplementary report. It was the opinion expressed in that report, and an opinion of a similar kind expressed by Dr Senadipathy, psychiatrist, that appear to be the central platform for the defendant’s submission that the plaintiff was fit for full-time alternative work. Dr Wood considered that the plaintiff needed to be exposed to “appropriate pain literacy education”, presumably to be given reassurance that he had a capacity to undertake a graduated return to work with a view to returning to full-time work. He considered that if all of this was done, then the plaintiff had the following employment options open to him: packer, transport clerk and rental salesperson.[17]
[17]DCB 82-84
24 I have provided a relatively brief summary of the medical evidence because it seems to me that there is little controversy in that evidence. The medical examiners all appear to agree with the appearances on the MRI scan, and that the plaintiff has at least an aggravation of a discal abnormality at L5-S1 with probable referred pain into his right leg. The only medical practitioners who expressed a different view are Mr Flanc and Dr Macbeth, who consider that it is the combination of the consequences of the impairment of the function of the plaintiff’s lower back and his psychiatric state which are contributing to his condition as they saw it when they examined him, and Dr Wood, who has provided a very different diagnosis than the preponderant view.
The Plaintiff’s evidence – lower back injury
Pain and suffering
25 I think the medical evidence clearly demonstrates that the plaintiff suffered an injury to his lower back. The evidence is less clear whether the injury is constituted by a frank discal injury or an aggravation of degenerative changes at L5-S1. I think it is probable that the plaintiff suffered an aggravation of degenerative changes at L5-S1. I think that is consistent with the preponderance of the medical evidence, and additionally, that aggravation has resulted in him suffering referred pain into his right leg, extending as far as his right foot.
26 The plaintiff says that the consequences of the impairment of the function of his lower back are as follows:
· Constant pain which varies, and is aggravated by bending, twisting, pushing, puling and lifting.
· Sitting for too long results in an increase in pain and shooting pain down the right leg. The shooting pain varies between occurring once a day to several times a day.
· Difficulty showering and dressing, and rising off the toilet seat.
· Difficulty performing housework, gardening and handyman tasks. He is able to manage light chores. He does a little in the garden and struggles doing any handyman tasks. His father usually mows the lawns, maintains his garden and performs what handyman work is needed.
· He is unable to assist his wife in undertaking grocery shopping.
· The extent of his capacity to drive the motor vehicle is limited.
· His sleep is interrupted by both the pain in his lower back and the worries which he has which appear to be more driven by his psychiatric injury.
· He has difficulty playing with his children, and helping with their day-to-day needs.
· He has difficulty engaging in social games of football, soccer and social outings with his wife and friends.
· He is unable to do any mechanical work on his car.
· His intimate relationship in his wife is now dramatically reduced.
27 In addition to the foregoing, it is clear from the medical evidence that the plaintiff has had a fair amount of medical treatment directed to his lower back, although, his psychiatric injury appears to have overtaken the lower back injury in terms of seriousness and the need for treatment. Part of his medical treatment for his lower back has been the prescription of significant painkilling medication.
28 Some of the medical opinions address the issue of whether the psychiatric injury has resulted in some degree of amplification of what the plaintiff says are the consequences attributable to the impairment of the function of his lower back. I am not satisfied that there is a need for disentangling, because it is clear that the plaintiff suffered an established lower back injury before the psychiatric injury took hold and became more dominant.
29 What I am able to discern with clarity is the fact that the lower back injury was well established before the psychiatric injury became dominant, and I am able to trace through the persistence of complaints from early on up until the present time, which appear to me to be solely attributable to the impairment of the function of the plaintiff’s lower back.
30 The challenge to the plaintiff’s case was rather more directed to the question of his motivation. I will return to that later in these reasons and in more detail. I took the cross-examination to also encompass his motivation in overcoming what he says are the disabling consequences attributable to the impairment of the function of his lower back.
31 I accept the plaintiff’s evidence. I have done so by considering all of the evidence and by critically analysing the plaintiff’s evidence in his affidavits, the histories obtained by the various examining medical practitioners, and the cross-examination testing his evidence.
32 The consequences of the plaintiff’s lower back injury in terms of pain and suffering easily meet the statutory test. He has pain and a level of interference with almost every aspect of his daily existence. The level of pain, interference with mobility, sleep and his domestic, social and recreational pursuits can fairly be described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Loss of earning capacity
33 I need to repeat an observation I have now made on least two occasions, and that is, that the impairment of the function of the plaintiff’s lower back had become established and persisted even though the psychiatric injury later became dominant.
34 I have undertaken a sufficient summary and analysis of the medical evidence for it to be evident that not all of the examining medical practitioners were convinced that it was the lower back injury alone which was the cause of his loss of earning capacity.
35 However, that is not to say that the dominance of the psychiatric injury displaced the role played by the impairment of the function of the plaintiff’s lower back in the causation of his incapacity to undertake his pre-injury work or alternative or suitable employment.
36 I have resolved the plaintiff’s claim in this respect in this way. Dr Desmond, Dr Davison, Dr Hor and Dr McCallum support the conclusion that the lower back injury became well established and that the plaintiff was incapacitated for his pre-injury work, and alternative or suitable employment, at the time when they examined him. The opinions of the subsequent medical examiners do vary to some degree regarding the plaintiff’s capacity to perform alternative or suitable employment, but they nonetheless establish clearly that the plaintiff had a significant impairment capacity for employment.
37 The conclusion I have reached is that the plaintiff is not fit, and has not been fit, for his pre-injury employment nor for alternative or suitable employment. Therefore, his loss of earning capacity can fairly be described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.
The psychiatric injury
38 When it became evident that that the plaintiff was suffering from anxiety and depression, he was referred to Ms Garcia, psychologist. She commenced treating the plaintiff on 12 August 2016. She continues to treat him.
39 Ms Garcia considered that the plaintiff was likely to remain predisposed to depression and anxiety so long as his lower back pain persisted and he was unable to rehabilitate himself back into the workforce. She considered that he was not fit for his pre-injury employment, nor for alternative or suitable employment.[18]
[18]PCB 45-52, and an addendum at PCB 53-54
40 The plaintiff was subsequently referred to Dr Singh, psychiatrist. He commenced treating the plaintiff on 14 June 2017. He understood the plaintiff’s history to be a long history of anxiety, panic attacks, depression, social phobia, depression and separation anxiety, and anger relevant to his inability to work.
41 At the time when Dr Singh commenced treating the plaintiff, the plaintiff had been prescribed Valium and Avanza. Dr Singh advised him to reduce and then stop using Valium and Avanza and to commence using Paroxetine and amitriptyline.
42 At the time when the Dr Singh composed his first report dated 24 July 2017, he had only been treating the plaintiff for about one month.[19] He considered that the plaintiff was suffering from a Chronic Pain Syndrome with secondary anxiety, Major Depression and panic attacks. He considered that he was unfit for his pre-injury work or alternative or suitable employment. At that stage, he was considering that there might be a need for hospitalisation to treat the plaintiff’s depression and anxiety.
[19]PCB 73-77
43 The plaintiff saw Dr Singh on a fortnightly basis. He provided a comprehensive report dated 22 May 2018 in which he repeated much of the history contained in his first report.[20] He had been treating the plaintiff on a fortnightly basis. He noted that his use of Paroxetine and amitriptyline had reduced the plaintiff’s anxiety and major panic attacks. His diagnosis did not change, nor his opinion relevant to the plaintiff’s capacity for work. He considered that the plaintiff would require regular treatment over the ensuing two years, and still considered that hospitalisation might have its place in his treatment.
[20]PCB 83-87, and an addendum at PCB 89 in which he corrected the mistake he made that the plaintiff had been using ice
44 The plaintiff was examined by Dr Kaplan, psychiatrist, on 17 April 2018.[21] Dr Kaplan diagnosed a different psychiatric condition from Dr Singh, but based upon the same history. He considered that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and additionally, a Panic Disorder with agoraphobia. The latter diagnosis appears to have been based on the plaintiff’s fear of something happening to him if he ventured out of his home, for example the fear of being in an accident when driving a car, suffering a heart attack, or suffering a panic attack which might cause an accident or harm to some other person. He felt most secure when he and his family were in the safety of their home.
[21]PCB 135-146
45 Dr Kaplan considered that the plaintiff would be prone to anxiety and depression for so long as his lower back pain persisted, and for so long as he remained unable to rehabilitate himself and get back into the workplace. He considered his prognosis to be unfavourable. He considered that the plaintiff was probably incapable of performing his pre-injury work or any alternative or suitable employment.
46 Dr Senadipathy, psychiatrist, examined the plaintiff for the defendant on 11 December 2017.[22] On examination, he found the plaintiff’s mood to be anxious and that he was moderately depressed. It led him to diagnose an Adjustment Disorder, which he considered was caused by the loss of his capacity for work and the support of his family.
[22]DCB 70-72, and the supplementary report is at DCB 70-73
47 Dr Senadipathy considered that the plaintiff was not totally incapacitated for work by reason of his “mental illness”. He understood that he was incapacitated for his pre-injury work because of the injury to his lower back. He added that the plaintiff’s capacity to return to his pre-injury work was dependent upon a prognosis of his lower back injury.
48 The part of Dr Senadipathy’s opinion which was seized upon by the defendant is the following – he considered that “from purely a mental health point of view” that if the plaintiff was “highly motivated”, that he had a capacity to commence suitable employment. He later added that the plaintiff needed to develop a belief in the long-term benefits of staying active and engaging in gainful employment as part of his recovery and rehabilitation.
49 In relation to a return to work, again, based upon the perspective of the plaintiff’s “mental illness”, Dr Senadipathy considered that the plaintiff would not be able to perform full-time duties. He recommended that the plaintiff commence two hours a day, four days a week with a view to gradually increasing his hours.
50 Dr Senadipathy appears to have been highly critical of the plaintiff being caught up in the “WorkCover process” and having to deal with multiple medical opinions, and an adversarial approach to his claim, none of which encouraged acceptance and commitment to focus on independence and self-management.
51 Coupled with the opinion of Dr Senadipathy is the opinion of Dr Wood, which I have summarised in sufficient detail above.
The Plaintiff’s psychiatric injury
52 The plaintiff says that the consequences of the psychiatric injury are as follows:[23]
[23]PCB 24 and 26-29
· Feeling down and depressed all of the time, and anxious most the time.
· Worry about his future. Feeling negative about his future.
· Some suicidal ideation.
· Thinking that “bad things” are going to happen to him and his family outside their home. Seeing dangers everywhere.
· Anxiety when left alone.
· Regular panic attacks.
53 Inherent in the concession that the pain and suffering consequences of the psychiatric injury are “severe” is an acceptance that the consequences I have just summarised from the plaintiff’s affidavits are accepted.
54 I prefer the opinions of Ms Garcia, Dr Singh and Dr Kaplan. It is clear from their opinions that the plaintiff has been severely affected by the psychiatric injury. He requires regular medical treatment. He requires the use of significant medication. The consequence of the psychiatric injury have interfered with almost every aspect of his daily existence.
55 There appears to be little doubt that the plaintiff’s psychiatric injury is related to the nature and extent of his lower back injury. The conclusion I have reached relevant to his lower back injury is that it is seriously incapacitating. That being so, the prognosis for the plaintiff’s psychiatric injury logically is very poor.
56 The thesis advanced by Dr Senadipathy and Dr Wood is that the plaintiff must get his mind around his apparent catastrophic thinking. However, that appears to me not to be thinking on the part of the plaintiff which is independent of his psychiatric injury but part of it. I do not accept the thesis advanced, bar Dr Senadipathy, in the face of other compelling evidence.
57 The plaintiff was cross-examined at some length based upon the thesis of Dr Senadipathy and Dr Wood. His responses were, in effect, that he cannot function any better than he has been, and is disabled by the psychiatric injury to the extent he describes in his affidavits.
58 Taking the plaintiff as he is, it is near impossible to consider that someone who is plagued by such serious symptoms of the psychiatric injury could return to his pre-injury work, or even alternative or suitable employment, or to any of the alternative forms of employment proposed, being a transport clerk, packer or in rental sales.[24]
[24]Referred to in the Recovre Vocational Assessment Report dated 19 October 2017 at DCB 90-112
59 I conclude that the plaintiff’s loss of earning capacity can fairly be described as “severe” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Conclusion
60 I will grant the plaintiff to leave that he seeks.
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