Turner v B and Z Klarica Investments Pty Ltd

[2014] VCC 952

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-00097

COLIN TURNER	Plaintiff
v
B & Z KLARICA INVESTMENTS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24 and 25 June 2014
DATE OF JUDGMENT:	30 June 2014
CASE MAY BE CITED AS:	Turner v B & Z Klarica Investments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 952

REASONS FOR JUDGMENT

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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the neck and psychiatric injury – pain and   suffering and pecuniary loss damages

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)

Cases Cited:Petkovski v Galletti [1994] 1 VR 436

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Sheehan WITH Mr B Bowlby	JN Zigouras & Co Lawyers
For the Defendant	Mr RH Stanley	Lander & Rogers Lawyers

HIS HONOUR:

1 This application for leave to bring proceedings for both pain and suffering and pecuniary loss damages, pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”), relies on a paragraph (a) injury to the neck and a paragraph (c) psychiatric injury. An injury to the left shoulder was also mentioned in the opening, but eventually it was made clear leave was not pursued for that physical injury.[1]

[1]Transcript (“T”) 2–4, 14–15

2       The issues for determination are whether or not the injury to the neck is “serious”.  Similarly, it is said that the paragraph (c) injury, which involves an aggravation of a pre-existing psychiatric condition is not “severe”.[2] Other issues have been raised as germane to determining these principal questions, namely, the credit of the plaintiff as well as whether or not the disentangling process has been carried out.[3]

[2]T18–19, s134AB(37)

[3]T17–18

3       There have been admitted compensable injuries involving the payment of benefits with respect to both the neck and the psychiatric conditions.[4]  Thus, while causation does not have to be determined, it was relevant to credit to examine the plaintiff’s various accounts of the initiating incident.[5]

[4]T16

[5]T16–17

4 The repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading speech that accompanied the repeal is noted. Clear, proper and adequate reasons are still required, although it is not necessary in this application to describe all the medical evidence in great detail.

5       At the start of this case the plaintiff provided a Court Book of monumental proportions.  It contained 443 pages of documents, largely comprising medical reports and letters from doctors.  Some 76 such reports or letters were provided, together with radiology reports that numbered fourteen and then four very lengthy vocational assessment reports.  The Court Book was given back to Counsel for the plaintiff for some appropriate editing.  When it was returned it still contained some 61 medical reports or letters.  Included in that material were no less than 15 reports and letters from a Dr S Mullen, whose relevance to this application, on any view, was at best limited.  I indicated this to Counsel.  Notwithstanding, in the end over 50 medical reports across both Court Books involving 27 doctors were tendered.[6]  None gave oral evidence.

[6]T21, 41–42, 148-157

6       The plaintiff is a man aged sixty-one years who unfortunately suffers from a number of significant medical issues.  These occurred in the period before he was injured on 16 February 2007 (“the accident”) as well as in the years since.  He has had a number of WorkCover claims prior to the subject injuries for other conditions that include back, shingles, knee and major psychiatric conditions, including a depressive disorder involving suicidal ideation.

7       The plaintiff commenced employment as a plumber with the defendant on 18 January 2007 and was only there a very short time before the injury on 16 February 2007.  He had one and a half days off work before he was in effect terminated on 7 March 2007.

8       This was a case in which it was of great advantage to be able to hear and observe the plaintiff in the witness box.  In addition, it was useful to have the opportunity of asking him questions by way of clarification of his evidence.  The plaintiff was a very unsatisfactory, unreliable and inaccurate witness.  He gave evidence that was inconsistent with his affidavits.  He presented as a witness who at times was very ready to give answers, when pressed on a topic, that were simply not credible.  His credit was pivotal to whether or not he discharged the onus of proving “serious injury” under paragraph (a) and/or (c).  He has failed to discharge the onus on both.

9       The unsatisfactory nature of the plaintiff’s evidence commenced virtually at the outset of this case.  In his first affidavit, when he described the accident, he spoke at some length about a scissor lift being used to lift pipes and how the faulty nature of that scissor lift was effectively the cause of a very violent incident.  In essence, he said that the scissor lift jerked suddenly at one stage and his head and chest were crushed.  He stated:

“… my head was slammed up and into a concrete slab”.[7]

[7]Plaintiff’s Court Book (“PCB”) 15

10      The plaintiff said further that the scissor lift would have killed him if he had not been able to stop it toppling over.

11      The Register of Injuries which the plaintiff signed on the same day read in very different terms.  His head and chest were not mentioned at all.  He described that he strained his neck/shoulder lifting galvanized pipes off the ground and onto a lifter.[8]

[8]Defendant’s Court Book (“DCB”) 16

12      The plaintiff was cross-examined about the difference in his versions of events.  He gave very unsatisfactory answers when confronted with the discrepancies.  In effect, he stated that he did not mention the faulty scissor lift out of some desire to prevent WorkSafe investigating the accident.  That did not in any way explain why the crushing of his head and chest was not mentioned.  How that difference was explained by his concern about WorkSafe was never made clear.[9]

[9]T75-79, 84-85, 87-91

13      After the plaintiff’s employment was terminated on 7 March 2007, he lodged a WorkCover Claim Form on 8 April 2007.  The description of what happened there was simply that he was lifting pipes and felt a sudden pain in his neck and shoulders.[10]  The plaintiff had left his employment at this stage so the involvement of WorkSafe, if that really was a matter that was of concern to him on the day, had ceased to be of any relevance.  The plaintiff could not explain why his WorkCover Claim Form did not give any version that could be reconciled with the detailed account in his first affidavit of his head and chest being crushed and his being slammed into a concrete slab.

[10]PCB 439–441

14      He was then taken in cross-examination to clinical notes from the doctor that he attended at Doncaster Shopping Centre where he was working on the day he was injured.  Those notes described lifting heavy pipes at work as the essence of the history of injury to the right shoulder and upper back.  There was no mention of his head.  The plaintiff, when confronted with this, said in the witness box that he had a laceration and/or a graze to his head.  No note by the doctor referred to such a sign of head injury.  I find it very improbable that any doctor, if he was told that a man had his head crushed, would not have examined the head and would not have noted any visible signs of injury.  One does not need medical evidence to conclude that, when a number of injuries are mentioned, a crush injury to the head would probably be the most concerning, the most demanding of investigation and notation by a medical practitioner.  No scan or x-ray of the head was ordered.[11]

[11]Exhibit 3

15      The unsatisfactory accounts of the accident continued.  The plaintiff saw three doctors he knew were reporting on his WorkCover claim.  To Mr T Russell he said, in May 2007, that both he and an apprentice lifted the pipes and the plaintiff was injured.[12]  To Dr Hammond he said, in July 2007, that he was injured when an apprentice dropped one end of the pipes.[13]  To Dr N Strauss, a month later, he said the mishap occurred when the other worker slipped.  No scissor lift was mentioned.[14]  When pressed, he said it was confusion as to language or how to report the accident.[15]

[12]DCB 27

[13]DCB 37

[14]DCB 44

[15]T89-91

16      Even years later when the scissor lift was described, there is no mention to a number of doctors of the plaintiff’s head being crushed or involved at all.  Examples were Dr A Sillcock in 2010 and Mr P Mangos in 2008.[16]

[16]PCB 209, 233

17      With an admitted compensable injury to his neck, I do not have to determine the question of causation but the matters I have set out detracted very seriously from the plaintiff’s credibility in this case.  I consider his answers were evasive and at times not much more than a kneejerk response given on the spot to matters that could not be readily reconciled truthfully.

18      There were a number of other examples where his credibility was seriously impacted upon.  A particular example was the topic of his previous major depressive disorder prior to February 2007.  He was taken in detail to a lengthy report from Dr Michael Papasava, clinical psychologist, of 27 September 2004.  He treated the plaintiff for a major depressive disorder, panic disorder and alcohol abuse dating back to 2004 that was the subject of a WorkCover claim.  It involved shingles and associated serious psychiatric symptoms.[17]  The plaintiff was taken to a litany of complaints that were recorded in that report and made to the psychologist.  A large number of these he agreed with, but he was extremely evasive when it was suggested to him that he had suicidal thoughts as early as 2004.[18] 

[17]PCB 113

[18]PCB 114

19      I found his evidence most unsatisfactory with respect to his reluctance to admit what was clearly set out in great detail and, indeed, quoted verbatim in the treating psychologist’s report.  There were even details about how a contemplated suicide would be carried out and the motive for it.  It was an insurance benefit to his children.[19]  He was given the report to read in Court to assist his memory.  The plaintiff was also reluctant to concede that the medical records indicate that he continued to receive medication for his psychiatric problems throughout 2005 and 2006.  Eventually he seemed to concede that if the reports recorded that, he accepted it but it was with reluctance.

[19]PCB 114

20      By St Patrick’s Day, 17 March 2007, the plaintiff gave evidence of suicidal thoughts.[20]  This was only ten days after he was put off work on 7 March 2007.  When one reads his affidavit, it would appear that as a result of his shoulder and neck pain, the plaintiff was attempting to attribute this ideation to a gambling problem, feelings of worthlessness and being more depressed.  In that context, he described going to Echuca on St Patrick’s Day and planning to commit suicide there.  He had a huge credit card debt which he had blown on the pokies.[21]  This was only ten days after he ceased work.  On his affidavit evidence, he had been quite well psychologically until the accident only a month earlier on 16 February 2007.  A sudden and dramatic deterioration in his mental health is hard to understand given the extremely short timespan between the injury and the trip to Echuca.  It is far more probable he was a man who had ongoing, very severe psychological problems for which he was still on repeat scripts for anti-depressants at the time he was injured.

[20]PCB 18

[21]PCB 17–18

21      Again, when pressed on these matters, his evidence was extremely unsatisfactory and unconvincing.  This affidavit spoke of blowing all his money on the pokies.[22]  Then in Court he spoke about a $25,000 debt due to some relationship that had soured.[23]  He could not, in any way that was convincing, describe the sudden intention to travel to Echuca to commit suicide against his evidence of the absence of suicidal thoughts in the past.  The probabilities are that he had very severe suicidal thoughts in at least 2004 and he was not prepared to admit to that as, in his view, it did not help his current application.

[22]T18

[23]T119

22      The plaintiff’s affidavit evidence gave a very inaccurate and misleading picture of his prior major depressive disorder.  It makes an analysis of the before/after picture required virtually impossible.[24]  No solid factual foundation of his mental state before the accident, or indeed afterwards, was made out.

[24]Petkovski v Galletti [1994] 1 VR 436

23      Another example of the plaintiff’s unreliability was what he said in the affidavits about his sport.  Both affidavits refer to participation in cricket and it ceasing due to the accident.[25]  It emerged in the witness box he had not in fact played since 2000 or the 2004-2005 season.[26]  He claimed to be a junior football coach pre accident.  However, he could not even say what football league his club was playing in.  I do not need evidence of the need for a club to have a fixture of its matches, registration of players, results, team sheets and other paperwork required by any football competition to find his evidence implausible on this issue.  In any event, he had not coached since 2002.[27]

[25]PCB 13 and 34

[26]T72

[27]T73-74

24      Similarly, the statement in his first affidavit –

“Prior to suffering injury I enjoyed good physical and psychological health”

is just plainly wrong.[28]  While he went on to mention some prior back, anxiety and depression problems, they were so much more extensive and causing serious difficulties in his life to again show his credit in a very bad light.

[28]PCB 13

25      Furthermore, under the heading “Circumstances since injury” the first affidavit listed a large number of consequences.[29]  These need to be compared with the pre accident picture painted in the affidavit.[30]  This principal affidavit represented that all those listed consequences were as a result of the accident.  There is virtually no reference to any such problems prior to 16 February 2007.  That is very misleading.

[29]PCB 17-19    

[30]PCB 13-14  

26      The consequences range from heavy gambling, smoking and alcohol abuse, huge credit card debt, a suicidal plan that took him to Echuca and others.  The material from Dr Papasava in September 2004 recorded serious alcohol abuse, suicidal ideation that included how and why he was to go about ending his life, three or four panic attacks per week and ongoing anti-depressant medication.[31]  Just the list of some eight medications he had required in 2004 contains an overlap with what the affidavit recorded was accident related.[32]  Yet the only medication he specifically identified as being required pre accident was Lexapro.[33]  It is a very misleading picture painted as to the drugs the accident has led him to need.

[31]PCB 115-116

[32]PCB 116, 118-119

[33]PCB 14

27      The second affidavit in 2013, which is now some nine months old, did not sufficiently correct any of the major inaccuracies.  It largely repeated the situation.  Again, the clear impression was one of a litany of consequences of the accident against a background of quite good health and a very full unimpeded lifestyle.

28      Other specific examples of the plaintiff’s evidence being quite unsatisfactory include the question of alcohol problems.  In the material from Dr Papasava,[34] it was clearly of major proportions in 2004 but the plaintiff denied this to Dr I Jackson in 2010.[35]  He was also in denial in the witness box but the degree of specificity the doctors record as to the type of drink, daily amounts and even how he mixed drinks leads to the probability that they were accurately recording what he said to them.

[34]PCB 111-117

[35]DCB 70

29      Gambling before and after the accident is another area of real concern about the accuracy of the plaintiff’s evidence.  What was said to Dr Papasava[36] and later to Dr Farnbach[37] cannot be reconciled.  When pressed in cross-examination about this, his answers were evasive.

[36]PCB 99 and 107

[37]PCB 241

30      He was asked about his various changes of residence.  He had been in Eden and was now in Tocumwal, New South Wales, over the last three or four years and possibly longer.  He said he moved to Tocumwal to be closer to his treating doctors who have all been Melbourne based.  I found this quite a curious answer.  When pressed further, he then tried to suggest it was liking the country aspect up there and knowing people up there.[38]  It was consistent with a witness who would say virtually anything to deflect a question.  When the obvious inconsistency of an answer became apparent to him he would give some other spontaneous reason.  He was an untruthful witness.

[38]T123-124

31      There has been no other lay evidence provided to corroborate what the plaintiff has said in this application.  He has adult children and it seems has a companion or friends at some stage, sporting associates on his evidence in clubs and travelling companions to Tasmania each year.  No affidavit support has been tendered from anyone.

32      This was not a case where the plaintiff had any difficulties with verbal language or documents.  I do not accept his excuse that confusion meant he could not find words to describe the accident.  Whatever really did occur on 16 February 2007 it was not a factually complex event.  This is a man who carried out a handwritten estimation of a $2.8 million construction job over eight days.  He had employed 18 to 20 people in the past over something like 20 years.  He had been foreman on large jobs.  He had carried out sales work in the engineering field.[39]  There was little if any lack of comprehension that would explain an inability to recount the accident.  The inconsistency and evasion in his evidence applied to both his affidavits, incident and WorkCover reports and oral testimony.  Confusion was just really another excuse when the WorkSafe one now looked doubtful.

[39]T134-137

33      On the paragraph (a) application the medical evidence does not, of itself, establish “serious injury” as it can at times when the pathology is so gross it virtually speaks for itself.  Here the radiological evidence of the cervical spine, for a tradesman of his age, is mild to moderate only.[40] Accordingly, the assessment of the consequences of his neck injury depend almost entirely on an evaluation of the plaintiff as a witness.  For the reasons described I do not accept his evidence about symptoms and consequences.  His lack of credit poisons virtually all the medical opinion provided both from treaters and medico-legal experts.

[40]PCB 335, 339, 349-351

34      I do not accept the medical opinions about the consequences flowing from the physical neck injury establish a case of “serious” consequences.  I also do not accept that they sufficiently disentangle the physical neck pain from the physical shoulder pain the doctors described.  Moreover, there is not a sufficient disentanglement of the organically-based consequences from those that are psychologically or mentally based.

35      I will not go through every one of the voluminous medical records tendered in this case.  In spite of their large number, there is nothing from New South Wales’ doctors.  The plaintiff said he has been seeing doctors in Merimbula and Tocumwal over recent years.  They could give, presumably, some contemporaneous evidence.  I will just give a few examples of how the principal medical evidence the plaintiff relies on is flawed.  In a case where there are admitted compensable paragraph (a) and (c) injuries and the test is to evaluate consequences in June 2014, almost seven and a half years after the accident, a large number of these reports are of little or no real use.  Others are just irrelevant.  I will refer to some of the more up to date opinions.

36      After hearing and assessing the credit of the plaintiff, I do not accept the level and range of symptoms, organic and non-organic, that he deposed to.  This, of necessity, infects virtually every medical report where doctors quite understandably have accepted at face value what the patient has told them.  Unfortunately it means that their opinions are mostly not founded on solid factual material.  This is even more vital in psychological and psychiatric reports where radiology and physical examination do not add to the overall data an expert can rely on to form an opinion.

37      A report of Dr Cayetano of October 2004 recorded that after recovery from shingles, the plaintiff was incapacitated by ongoing emotional psychological problems.  He needed to continue anti-depressants and possibly be referred to a psychiatrist.[41]

[41]PCB 333

38      At the original practice the plaintiff attended after the accident, he reported neck and right shoulder pain only.  He was last seen there on 21 May 2007.[42]  Of the general practitioners only Dr C Renzaho has reported in the last year.  That was nine months ago.  Dr Renzaho described the plaintiff’s medical history as complex.  She gave opinions about symptoms “possibly” related to certain events in response to solicitor’s questions.[43]  On a reading of her last report it is not clear just what consequences can be sufficiently delineated from his other medical problems.  This applies to both the physical and psychological injuries.  Her opinion was that the plaintiff suffered from a number of problems that started both before and after the accident.  They include an acquired brain injury.[44]  The consequences of the accident itself are not disentangled from other conditions.

[42]Exhibit A

[43]PCB 26-31

[44]PCB 28

39      Dr G Symington, neurologist, saw the plaintiff once over seven years ago.  He found a soft tissue neck injury.[45]  The report does not assist as to consequences now.

[45]PCB 328

40      Mr L Ton, orthopaedic surgeon, treated the plaintiff in September and November 2007 and provided one brief report.[46]  Apart from the need for a referral to Dr Clayton Thomas for pain, no further assistance on consequences now is given in Mr Ton’s two reports.

[46]PCB 322

41      Dr J Joubert, neurologist, treated the plaintiff and reported on 11 December 2007.  She was told of “automatic” behaviour such as getting up and walking out of restaurants and leaving his partner behind.  The diagnosis was of some epileptiform episodes probably caused by stress.  He presented as completely normal physically.  This very old report takes the matter no further now.[47]

[47]PCB 298-299

42      Dr Clayton Thomas, pain and rehabilitation consultant, saw the plaintiff for treatment in 2007 and the last consultation was in June 2008.[48]  The Dorset Rehabilitation Centre material was also relevant to Dr Thomas’ management of the plaintiff’s condition.  He last attended at that Centre in May 2008.[49]  These reports are so dated they do not assist judging consequences now.

[48]PCB 302-304

[49]PCB 311-318

43      Mr P Mangos, general surgeon, saw the plaintiff in 2008, 2009 and 2012.  The information he had about the plaintiff’s previous medical history is so sparse as to undermine his opinions.  In addition, he relied on a history of a crushing injury to the plaintiff’s neck which I am unable to conclude occurred.  He also had a very incomplete history of the plaintiff’s work history.[50]  I reject Mr Mangos’ opinions as not being soundly based.

[50]PCB 233 and 226

44      Mr C Pullen, orthopaedic surgeon, saw the plaintiff in January 2010 for treatment of the left shoulder problems only.[51]  He diagnosed dual pathology.  He last saw the plaintiff in February 2010.  Apart from a left shoulder condition that required treatment including hydrodilatation, he gave no evidence to assist in judging neck consequences.

[51]PCB 255

45      The 2012 neuropsychological report of Dr L Vowels, neuropsychologist, spoke of the possibility of an acquired brain injury due to the forces involved in the accident.[52]  This report is based on such flawed information and facts which I do not find proved in this case that the opinions expressed do not assist.  It concluded, as I read it, that the plaintiff’s pain and suffering was essentially psychological.  The report does not establish leave for the paragraph (a) injury.  As to paragraph (c) no before/after analysis that is adequate was undertaken.

[52]PCB 186

46      A large number of reports and letters from Dr S Mullen, neurologist, were tendered.  He saw the plaintiff in 2010 after an incident in October 2009 when the plaintiff stood up on the beach and he lost vision amongst other symptoms.  He diagnosed an artery problem in the right carotid.[53]  He dealt with the question of the accident and how it fitted into the picture and seemed to think a shoulder condition was more relevant.[54]  Further letters alluded to a significant closed head injury that could lead to central lobe dysfunction.[55]  The plaintiff has not proved any closed head injury on all the evidence.  In 2012, he said the work injury was consistent with the headaches following a history of his neck being compressed in the accident.[56]  I do not find that a crush or compression injury to his head and/or neck has been proved.  Reading these reports overall, a vital part of Dr Mullen’s opinion was really based on a violent injury to the plaintiff’s head and neck.[57]  The 2013 letter takes the matter no further.[58]  As already stated, I can make no positive findings as to what really happened in the accident let alone find there was a closed head injury.

[53]PCB 179-180

[54]PCB 177

[55]PCB 172

[56]PCB 167

[57]PCB 164, 177

[58]PCB 160

47      Mr P Kudelka, orthopaedic surgeon, saw the plaintiff in 2009, 2010 and 2013.  He diagnosed aggravation of cervical spondylosis and of degenerative changes in the shoulder rotator cuff and shoulder joint.  The cause was banging his head and jamming his chest in a scissor lift.  As stated already, I cannot reach any conclusion whether or not this did occur.  Additionally, the opinion of Mr Kudelka is not based on anything like a full medical history of the plaintiff’s problems pre accident.  Indeed the history he was given is error riddled.[59]  Also, the incapacity that Mr Kudelka described in 2013 is really based on an aggregation of a number of physical injuries.[60]  The restrictions he considered precluded the plaintiff from heavy work do not deal with the question of residual employment for alternative work which clearly the plaintiff has had experience in over the years.

[59]PCB 59

[60]PCB 53

48      Dr H Sutcliffe, occupational physician, saw the plaintiff in August 2013.  It seems she was given no history from the plaintiff of psychological problems pre accident.[61]  All she had in this regard came from a report of Dr Papasava and recorded by Dr Strauss.[62]  She took a “confused history in a non-sequential manner” of the accident.  She diagnosed aggravation of cervical spondylosis but in the context of other physical injuries.[63]  She considered incapacity for work was due to the neck, left shoulder injury and the psychiatric symptoms.  There is no disentangling of the neck impairment consequences and she said his condition was “multiple”.[64]  She thought the psychiatric condition alone precluded him from work.  She is not a psychiatrist.[65]  She does not have a proper understanding of the “before” picture prior to considering the “after” one.

[61]PCB 134

[62]PCB 143

[63]PCB 144

[64]DCB 145

[65]PCB 147

49      Mr K Siu, neurosurgeon, saw the plaintiff once in 2013.  It is a curious report in which there seemed to be no real pre accident medical history recorded at all.  He diagnosed aggravation of cervical spondylosis but thought it was significant depression that made the plaintiff unlikely to return to pre injury duties.  Physically he could work as an estimator.  He did not comment on the left shoulder but noted there was wasting caused by a shoulder injury.[66]  His report does not support consequences attributable to the organic neck injury on its own that could be judged as very considerable.

[66]PCB 122-123

50      Dealing with the defendant’s doctors, there are reports of Mr R Strangward and Dr C Stambe in 2004.  They saw the plaintiff for his previous WorkCover claim for shingles and associated stress.[67]  These do little more than reinforce the plaintiff probably suffered some debilitating symptoms in 2004 that make the inadequate medical history provided in his affidavits and to virtually all doctors in this case more apparent.  Dr Cayetano, in 2004, recorded he was still incapacitated from shingles and secondary psychological problems in October 2004.[68]  He needed ongoing therapy and anti-depressants with possible referral to a psychiatrist.  This is consistent with anti-depressant prescription as late as 25 June 2006 that included five repeat scripts.[69]  It is also relevant in emphasising the inadequacy of the histories the plaintiff has given about his pre accident health.

[67]DCB 20 and 25

[68]DCB 26

[69]T159

51      Mr T Russell, general surgeon, reported in 2007 and 2008 and so they are very dated.  He accepted a neck injury at work but it had become more psychological than organic.[70]  There was probably some neck strain on top of pre-existing degenerative change.[71]  Mr Russell said in 2008 the plaintiff had a residual work capacity[72] but it was very early days.

[70]DCB 30

[71]DCB 32

[72]DCB 34

52      Mr B Davie, orthopaedic surgeon, saw the plaintiff in 2009 for the defendant.  He also was given such an inadequate previous medical history, with no psychological history given at all, that his report is limited.  He only diagnosed a musculoligamentous strain with no significant work-related problems.[73]  An up to date report from him in 2013 said the only area of physical concern was a left shoulder rotator cuff tear.  In spite of that, he considered the prognosis good, no physical treatment was required and the plaintiff had a wide range of suitable jobs he could perform.[74]

[73]PCB 288-289

[74]DCB 61-62

53      The occupational physician, Dr A Silcock, saw the plaintiff in 2010, 2012 and 2013.  She had material that was less than complete about his past medical history.[75]  The history she had of the incident is a different version, with his head being squashed, but also the left arm being caught under a pipe.[76]  Ultimately, she concluded he had mild soft tissue injuries to his neck and left shoulder.  His main problem was widespread cardiovascular disease.[77]  No very considerable consequences of the neck impairment alone were described.

[75]PCB 202, 206, 211; DCB 65

[76]DCB 64

[77]DCB 66

54      Professor S Davis, neurologist, reported recently and was again given a paucity of information about the plaintiff’s pre accident medical history and general health.[78]  He diagnosed soft tissue neck injury, together with “strikingly psychological or psychiatric symptoms” which very much dominated the clinical picture.[79]  In spite of the combination of physical and psychological symptoms, he thought the plaintiff was able to perform lighter work. 

[78]DCB 78

[79]DCB 83

55      Finally, hypertension was investigated by Associate Professor Hammond for the insurer in July 2007.  This report is of no assistance on the issues requiring determination now.  Again, it laboured under a very inaccurate pre accident medical picture.

56      Dealing with the paragraph (c) application, the treating psychologist, Dr Papasava, reported in September 2004 on a previous WorkCover claim and ended by saying:

“It is my opinion that Mr Turner has no capacity for either his or any other employment on the basis of his psychological condition currently”.[80]

[80]DCB 117

57      He described a major depressive disorder, panic disorder and alcohol abuse.  He needed a significant amount of ongoing psychological and possible psychiatric assessment.[81]  The plaintiff was referred back to him in October 2007. 

[81]PCB 117

58      Dr Papasava reported to the WorkCover conciliator in 2008.  After a history from the plaintiff that included his head being slammed into a concrete slab, he diagnosed major depressive disorder, panic disorder and a chronic pain disorder associated, amongst other things, with pathological gambling.[82]  He recorded the plaintiff saying the panic disorder started before the accident in January 2007 shortly after the plaintiff “started with this bloke”.  He also recorded the plaintiff stating he developed high blood pressure and a mild heart attack allegedly due to his employment.[83]  He reported in precisely the same language as he did in 2004 that the plaintiff:

“It is my opinion that Mr Turner has no capacity for either his pre injury employment or any other employment on the basis of his psychological condition currently”.[84]

[82]PCB 105, 109

[83]PCB 106

[84]PCB 109 (2007), DCB 117 (2004)

59      The report did not deal with how, when or why the plaintiff had recovered from the very serious conditions requiring treatment in 2004.

60      In that 2008 report he said, under the heading “Medical History”, that apart from shingles, the plaintiff’s “medical history is essentially unremarkable”.[85]  Logically this report just does not sit with his 2004 report.  The 2008 report reads as if the major 2004 problems never existed.  All Dr Papasava says about it is:

“He initially attended upon this author from August to December 2004 and recommenced attending in October 2007”.[86]

[85]PCB 108

[86]PCB 108

61      Without hearing from this witness his reports lack credibility.  The WorkCover conciliator charged with dealing with no fault benefits was given a very inadequate and misleading report in 2008 about Dr Papasava’s patient.  Only in the 2013 report did the psychologist repeat the 2004 history, treatment and diagnoses of the major conditions the WorkCover conciliator was not told about.  Dr Papasava relied on a clear history quoted verbatim of physical injury to the head when it was slammed into a concrete slab and his chest being crushed.[87]  He relied on a long list of consequences that are not established on the evidence.[88]  He relied also on panic attacks starting in January, before the accident, which was not mentioned anywhere in the plaintiff’s affidavits or oral evidence.[89]

[87]PCB 68

[88]PCB 70

[89]PCB 71-72

62      The 2013 report is deficient.  While Dr Papasava repeated the 2004 material on this occasion, he still did not address in any way the obvious concept of aggravation of the earlier serious psychological conditions.  The evidence is clear the plaintiff was still getting multiple repeat scripts for anti-depressants on 26 June 2006.

63      I reject Dr Papasava’s opinion about what psychological conditions the plaintiff suffered as a result of the accident.  The author relied on defective and erroneous information.  He ignored the logical requirement to properly deal with the 2004 mental illnesses.  A specific question raised the query about aggravation, exacerbation or recurrence of any pre-existing condition.[90]  Dr Papasava’s answer just seemed to ignore the question.  It is not answered at all.

[90]PCB 74

64      Handicapped by not hearing Dr Papasava explain his views, I find they are not well reasoned.  They are difficult to follow logically, reliant on inaccurate and deficient facts and do not properly address what is clearly an aggravated condition if anything.

65      Dr P Farnbach, psychiatrist, saw the plaintiff in April 2010.[91]  This report is now so far out of date it does not assist in judging consequences now.  He also relied on a history of concussion after being jammed against a concrete slab.[92]  He found it a complicated clinical picture.[93]  He relied on substantial neurocognitive deficits Dr Vowels reported on which I do not find proved.[94]  Dr Farnbach also acted on a conclusion that the plaintiff has a history of depression in 2004 that resolved well before the accident.[95]  I also do not accept that on the evidence of still having multiple repeat anti-depressant scripts in 2006.  No real before/after analysis was carried out that assists.  For these reasons I do not accept the psychiatric opinion of Dr Farnbach.

[91]PCB 238

[92]PCB 240

[93]PCB 244

[94]PCB 245-6

[95]PCB 245

66      Turning to the psychiatrists the plaintiff saw for the insurer, Dr I Jackson reported in 2010.  He recorded about the plaintiff’s past that save for some back and knee problem:

“He has no other major medical history including no psychiatric history”.[96]

[96]DCB 70

67      He was told the plaintiff was referred to a psychologist in 2007, the evidence indicated this was Dr Papasava, without any mention apparently of the significant treatment from that treater in 2004.  Nor was mention made of the need for multiple repeat anti-depressant scripts still being required in late June 2006.[97]  Dr Jackson could not diagnose any psychiatric condition.[98]  He was clearly frustrated and hamstrung by the lack of material from the treating general practitioner and psychologist and commented three times on that.[99]

[97]T159

[98]DCB 75

[99]DCB 74-76

68      Mr T Entwisle was another consulting psychiatrist who saw the plaintiff in February 2006 for the defendant.  It seems he was not provided with any documentation or medical reports and thus was reliant on the plaintiff for history.[100]  The plaintiff related more information about marital issues and his wife’s behaviour than anything else.[101]  The pre-exisiting panic attacks, major depressive disorder, need for ongoing medication and alcohol abuse for example were not recorded.  The plaintiff said there were no financial difficulties when his job ended in March 2007.  In Court he spoke differently.  He said there were problems in respect to a $25,000 debt run up by a lady he was involved with.  The final position of Dr Entwisle is that if the plaintiff suffered a closed head injury, then it is likely an adjustment disorder with depressed and anxious mood has been contributed to by the accident.  The plaintiff has not proved he suffered a closed head injury or any head injury at all.

[100]PCB 295

[101]PCB 291-292

69      Dr E Cole, psychiatrist, saw the plaintiff in September 2009 for the defendant.  He was given a number of medical reports, including three from Dr Papasava.  Significantly they did not include Dr Papasava’s 27 September 2004 report.[102]  That report contained the very detailed information, which I accept, about the plaintiff’s pre accident psychiatric state.  Dr Cole thus was impeded, along with other doctors, by lack of accurate information.  He also proceeded on the basis that the plaintiff was briefly concussed in the accident.[103]  I do not accept that is accurate.  The plaintiff has not proved any head injury.  Dr Cole related alcohol problems to post concessional syndrome.  This report is also too dated to assist much if at all in June 2014. 

[102]PCB 269

[103]PCB 264

70      Dr N Strauss saw the plaintiff in 2007, 2008 and 2012.  He was given nothing in regard to the significant history of such problems as clearly recorded in the treating material from Dr Papasava pre accident.  He thought it was a complex case in terms of the history of stressors and other general medical conditions.[104]  By the time of the 2012 reports, Dr Strauss had been sent material that gave a fuller pre accident picture.[105]  He noted the change in the plaintiff’s account as to how the accident occurred.[106]  His final opinion seemed to be that indeed if the physical complaints and symptoms the plaintiff said flowed from the accident, then a psychiatric connection could be made to the accident as opposed to the long list of other stressors in his personal life.[107]  In the end he said:

“I do not believe that he is suffering from incapacity for employment due to psychiatric factors related to the incident in February 2007.”[108]

[104]DCB 47 and 51

[105]DCB 57, 59b-c

[106]DCB 59e

[107]DCB 59g

[108]DCB 59g

71      He did not advance the matter in relation to pain and suffering consequences outside employment capacity. 

72      Last in time was Dr M Wong, consultant psychiatrist, who saw the plaintiff for treatment on one occasion in January 2014.  His report is so brief as to be of no real use.  With no real details to speak of about pre accident problems, he still found “recurrent” major depressive disorder.[109]  He expressed some optimism about ongoing medication and counselling achieving better control of his condition.  On any view he did not support a finding of permanent severe mental or behavioural disorder.  Whatever was suffered, this most recent medical specialist seemed to anticipate improvements rather than permanence.

[109]PCB 50A-B

73      On the evidence the plaintiff does not establish a severe permanent mental or behavioural disorder from any aggravation suffered in the accident.

74      Save for one matter, it is not necessary to deal with the vocational assessors’ material.  It totals some 73 pages across both Court Books.  The report of Karen Griffith in March 2009 listed seven medical conditions supporting a Centrelink claim.[110]  The shoulder is given a rating of 15, the neck 10 and depression 10.[111]  In a way this aggregation of conditions, allowable for Centrelink purposes, is representative of most of the evidence in this case.  The plaintiff has failed to disentangle consequences as required to satisfy the “serious injury” test.

[110]PCB 424

[111]PCB 425

75      Looking at all the medical evidence in this application on its own, leaving aside the lack of credit of the plaintiff, that evidence does not prove either a serious injury under paragraph (a) or (c).  No permanent consequences are established as attributable to the injuries, organic or psychiatric, that could be fairly described as meeting the test of “serious” or “severe”.  I accept the plaintiff probably suffered some soft tissue injury to his neck, whatever the physical forces were on 16 February 2007, but it was not productive of very considerable consequences.  I also accept he probably suffered some additional stress, anxiety and depression on top of that for which he was still on anti-depressant medication, but a “serious injury” aggravation has not been proved.

76      If it can be said there are some permanent consequences that satisfy the statutory test of “serious” the plaintiff has failed to disentangle the neck injury from a shoulder condition nor the organically based consequences from the non-organic.  Further, in regard to the paragraph (c) claim, the clear delineation of the before/after comparison required in an aggravation case has not been established.

77      For the above reasons the application is dismissed.

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