Vlamis v B J Ball Pty Ltd
[2017] VCC 456
•27 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-03941
| SPIROS VLAMIS | Plaintiff |
| v | |
| B J BALL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2017 | |
DATE OF JUDGMENT: | 27 April 2017 | |
CASE MAY BE CITED AS: | Vlamis v B J Ball Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 456 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mutual Cleaning Pty Ltd v Stamboulakis (2007) 15 VR 649; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Poholke v Gold Acres Trading Pty Ltd [2016] VSCA 232
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Ms S A Lean | Slater & Gordon Ltd |
| For the Defendant | Ms M Britbart QC with | Russell Kennedy |
HIS HONOUR:
Introduction
1 Spiros Vlamis brings two applications. One, relating to a psychiatric injury, has been settled. Apart from making consent orders when I deliver this decision, it concerns me no more. The other, dealing with the spine, seeks permission to bring a claim for pain and suffering damages.
2 In relation to this application, I heard from Mr Vlamis and read his three affidavits. There is an affidavit of his wife and a large number of medical reports and other documents tendered by the parties.
Circumstances
3 Mr Vlamis is now fifty-nine. He was born in Greece, educated to the equivalent of Year 9. After leaving school, he worked as a waiter for about two years and a barman on a cruise ship for about another three years before coming to Australia at the age of nineteen. He worked as a press operator for five years, a strip remover for three and a storeman for six. He had some casual work as well. He joined Boomerang Paper in about 1990. Boomerang Paper was acquired by a company called CPI. It became B J Ball Pty Ltd. Over the years with Boomerang Paper and its successors, Mr Vlamis has worked as a storeman, forklift driver and delivery driver but mainly as a forklift driver.
4 Overall, Mr Vlamis described his work with the defendant as being “very physical”:[1]
“I was required to perform repetitive, heavy and awkward lifting. I was also required to perform many tasks, which were awkward and/or requiring the use of force. For example, I performed many tasks requiring me to push and manoeuvre heavy objects and/or wrap objects.”
[1]Affidavit sworn 9 March 2016 at paragraph [8]
5 Mr Vlamis is married. He has two children, aged thirty-three and thirty-eight.
6 I did not get any idea of what the defendant’s business is except that it has a factory which makes paper.
1991
7 In about February, Mr Vlamis felt pain in his back after lifting.
2009
8 On 20 February, while working at the factory, Mr Vlamis injured his back for the first time while lifting a pallet. He had a few days off work. He worked on 23 February and saw his doctor that day at the Burwood Health Clinic. Throughout, Mr Vlamis has attended that clinic. The doctor prescribed an anti-inflammatory medicine, Mobic, referred him to a physiotherapist and issued a capacity for work certificate with two restrictions: no lifting more than 15 kilograms; and no bending.
9 On 2 March, Mr Vlamis saw a physiotherapist, Judith Bryant. He attended six sessions of physiotherapy until discharged by her on 2 April. By then, he was occasionally aware of mild discomfort in his left lower spine.[2] On 4 April, Ms Bryant wrote to the doctor:[3]
“Spiro has been attending for physio following a back injury at work on 20/2/09. We have seen him for 6 treatments since 2nd Mar and he has responded well. He will need to continue to exercise care, particularly in the workplace, over the next 6 weeks but should make a complete recovery. I have discharged him with an ongoing home programme and appropriate posture and lifting instructions.”
[2]Report of Ms Bryant dated 22 May 2014
[3]Clinical records of Burwood Health Care, entry for 4 April 2009
10 It is aptly described as a self-limiting episode.[4]
[4]Transcript at page 74
2011
11 On 17 June, Mr Vlamis had back pain while bending over to pull a thread for pallets. He saw his doctor four days later, who prescribed Mobic. On the same day, he attended Ms Bryant. She found his pain more widespread this time, affecting his lower lumbar spine, both sacroiliac joints, left buttock, hip and lateral thigh. She treated him fourteen times over the next five-and-a-half months.
12 Mr Vlamis saw his doctor twice after 21 June: 20 July and 20 December. On the latter date, the doctor certified him fit for normal duties. From 17 June, he continued working but was not free of pain. He worked in the same job. He was not given light work in a formal sense, but it was lightened in the sense he was not required to push heavy rollers for two or three weeks.
2012
13 During 2012, Mr Vlamis saw Ms Bryant a further six times when he needed to do so. She discharged him on 6 September 2012.
14 Also during 2012, there is only one entry in the records of the Burwood Health Clinic concerning his back. On 24 May, he complained of back pain after two weeks of cutting grass for his son and then helping his “daughter” with work under the house. He was given Mobic and prescribed Pariet.
15 In November, Dr Liu referred Mr Vlamis to a psychologist because of stress at work.
2013
16 On 15 February, his general manager, Peter Jolly, swore and yelled at him. This was unexpected. He became very scared. He shook. His heart beat very fast. He cried uncontrollably. After a meeting with Mr Jolly and others, where Mr Jolly apologised, Mr Vlamis returned to work. This outburst was the last distinct act before Mr Vlamis stopped working in July. It was the culmination of behaviour starting in 1990:[5]
“Over the period of employment that followed. I felt bullied, harassed, intimidated, ignored, discriminated against and manipulated by Peter [Jolly] (and to a lesser extent, by the other managers). I found this behaviour to be aggressive, disrespectful, isolating, erratic, unpredictable, blaming and unreasonable.”
[5]Affidavit of Mr Vlamis sworn on 21 August 2015 at paragraph [7]
17 In February, Dr Liu prescribed an anti-depressant medicine, which he still takes.
18 On 16 July 2013, Mr Vlamis injured his back again. This time there was pain in his left leg. He saw a doctor at the clinic he attends. She prescribed Panadeine Forte and ordered CT scans, which were taken the next day. They showed minimal diffuse bulges in the L3-4 and L5-S1 discs and a mild left paracentral diffuse bulge in the L4-5 disc. There was no central canal or foraminal stenosis.
19 Despite the injury, he continued to work for three days. On 19 July, he stopped work because of anxiety and stress:[6]
“I had a couple of days off following the incident in February 2013 and then tried to return to work. Unfortunately, as I had to keep working with Peter, I felt constantly fearful and could not handle it. I therefore stopped work on 19 July 2013 and have not returned to work since.”
[6]Op cit at paragraph [11]
20 On the same day, his doctor issued a certificate of capacity for his stress, saying he was unfit for any duties until 2 August. On 22 July, his doctor issued another certificate of capacity for his back and leg. It noted the existence of the other certificate, adding he should not lift more than 15 kilograms and avoid bending. In cross-examination, Mr Vlamis said his back pain and the anxiety and stress were the causes of his stopping work. He went further and said that in the absence of the anxiety and stress, he would have stopped work because of the back pain.[7] In his second affidavit, Mr Vlamis said:[8]
“I was very worried about making a fuss about my injury, as I thought I might lose my job or the bullying I was experiencing, would get worse.
I therefore kept working and pushed on as best I could, modifying things as much as possible. I then ceased work on 19 July 2013, as a result of my psychological condition. Having said that, it was a relief to also give my back a rest.”
[7]Transcript at page 16
[8]Affidavit sworn 9 March 2016 at paragraphs [10] and [11]
21 On 23 July, he saw Dr Liu. He noted Mr Vlamis walked with a “slow gait”. He took a history of “back pain over the past 1 year, comes and goes, good respon[se] with physio in the past, no leg weakness”.
22 On 26 July, Mr Vlamis saw Ms Bryant. His complaints were greater than before. They included pain and numbness down the left leg to the foot. He attended his physiotherapist twice weekly for the first five weeks and weekly for the next four weeks. Ms Bryant noted:[9]
“I was unaware for some four or five weeks that a ‘Stress Claim’ had also been lodged which might explain the ‘roller coaster’ progress that had occurred to date and continued subsequently.”
[9]Report dated 22 May 2014
23 By then it became clear to the physiotherapist “he had lost confidence, motivation and compliance”.[10] Thereafter, the physiotherapist saw him monthly until December 2014 when his entitlement ceased.
[10]Op cit at page 2
24 On 31 July, Mr Vlamis saw another doctor in the practice. He issued a certificate of capacity which spoke only of stress. The doctor recorded:
“Pt. states has ongoing stress related to workplace social bullying. Has taken time off past 2 wk. States has trouble sleeping. Advised him to see reg[ular] GP for ongoing workcover matters.”
25 Similarly, on 2 August, Dr Liu issued another certificate of capacity which deals with stress only. On 9 August, Dr Liu referred Mr Vlamis to a psychologist, Sarah Daniels.
26 On 6 August, Robin Williams, an orthopaedic surgeon, examined Mr Vlamis at the request of an authorised agent.[11] He told Mr Williams of the 2011 and 2013 incidents:
“I asked Mr Vlamis how he hurt his back on 08.07.2011, and he told me that he was lifting a gas bottle onto a forklift when he felt a click in the lower part of his back. He reported this and was advised to see his general practitioner.
He said that he did so and that he was examined and referred to physiotherapy. He had physiotherapy over a period of several months and told me that his back condition improved but never felt that it was quite normal again.
A further incident occurred at work three weeks ago when he lifted a pallet. This time he had more severe pain associated with a click in his back and pain spread to the left buttock and the left thigh down to the posterolateral aspect of the knee.”
[11]Report dated 6 August 2013
27 Mr Vlamis spoke of pain always present in the lower part of his back extending into the left buttock and thigh. He experienced sharper pain with some movements, particularly when twisting the lower back. Mr Williams saw the radiologist’s report of the CT scans taken on 13 July 2013.
28 On examination, Mr Williams found the range of movement of the thoraco-lumbar spine was a third of normal, limited by sharp pain low in the lumbar spine. While seated on a couch, Mr Vlamis could raise each leg to the horizontal with the left producing some low back pain. Straight leg raising did not suggest any significant radiculopathy.
29 Mr Williams saw no link between his present condition and the incident on 8 July 2011. He considered the condition due to the recent incident about three weeks earlier which caused a musculo-ligamentous strain in the low lumbar region with referred pain into the left leg. He thought the changes to the L4-5 disc were developmental and unrelated to his work. Mr Vlamis was capable of modified pre-injury duties, avoiding any heavy lifting and sudden movement of the lumbar spine. Nothing in his report suggests Mr Williams was told or was aware of the significant psychological issues present.
30 On 12 August, Gregory White, a psychiatrist, saw Mr Vlamis at the request of an authorised agent.[12] Under the heading “Other medical history”, Dr White recorded Mr Vlamis denying any past major medical history and he was not taking any medication other than Lexapro. He diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was incapacitated for any work. Ominously, he said of the future:[13]
“The duration of the incapacity is difficult to predict. Adjustment Disorder is a short-term difficulty that does not usually continue beyond a few months. It will either resolve by itself or respond to treatment. However, Mr Vlamis’ stressors have been long-term, as have been the symptoms.”
[12]Report dated 12 August 2013
[13]Op cit at page 8
31 On 14 August, Dr Liu saw him again. His note is somewhat longer than usual. It opens cryptically: “depressed/anxious many yrs due to his work place injury, worsening since the work place asult (assault?) on 30/11/2009”. The rest of the entry dealt with his psychological state. Dr Liu wrote a letter, addressed “to whom it may concern”. Its opening words are “This is to certify that Spiros has been using voltaren gel and back brace for his back pain … .”
32 Dr Liu saw him on 21 August, 30 August, 20 September, 2 October and 18 October. They dealt with the psychological issues except for 2 and 18 October, where other matters were raised as well.
33 On 25 September, Mr Vlamis starting seeing Justin Lewis, a psychiatrist. He saw Dr Lewis weekly in a psychotherapy supportive group, while Dr Lewis saw him personally every three weeks. Dr Lewis supports him with psychotherapy and monitors his anti-depressant medicines.
34 In October, Mr Vlamis went to Greece to see his sick mother. She died two weeks after his visit.
35 During November and December, Dr Liu saw Mr Vlamis four times. Each concerned his psychological state except for 19 December, where the doctor gave another generalised certificate; this time concerning back and knee pain.
36 On 10 December, Mr Vlamis saw another psychiatrist, Shashjit Varma, at the request of an authorised agent.[14] Although taking a briefer history than others, there are interesting aspects. He cannot leave his home for more than 30 minutes. On his return, he locks himself in the home. At home, he closes the blinds and sits inside.
[14]Report dated 10 December 2013
37 Dr Varma records that medically, Mr Vlamis is healthy. Psychiatrically, he diagnosed an Adjustment Disorder with anxiety symptoms. He felt Mr Vlamis was incapacitated to all employment and suggested a review in six months. In answering a question about capacity for work, Dr Varma said:[15]
“The worker has no current capacity to work because he is still quite traumatised by the abuse. He has flashbacks of the abuse, he wakes up at night and screams and sees that man. He is quite anxious and shaky and he has developed a phobia of even being in crowds or seeing people. He tries to limit himself to be at home. He has lost all confidence.”
[15]Op cit at page 4
2014
38 During this year, Mr Vlamis saw his doctors 39 times. Eleven of these attendances dealt with his back, whether on its own or with other issues. The last important entry about his back happened on 11 December. I will deal with that entry later.
39 On 8 June, Mr Vlamis went to Bali for a week’s holiday.
40 On 4 July, Dr Varma re-examined Mr Vlamis, who explained his condition had worsened.[16] He told Dr Varma of an added complication:[17]
“Unfortunately, in February 2014 while working on his fence in his backyard he fell down a couple of steps of the stairs and broke both his wrists. He had to be put in plaster and now he feels trapped … He is unable to drive due to the fractures of his wrists … He also mentioned both his hands have developed arthritis due to the hand injuries.”
[16]Report dated 4 July 2014
[17]Op cit at page 2
41 Dr Varma noted how negative Mr Vlamis was – “Whatever he said, every sentence was negative. He has sort of put a block on thinking positive” – and maintained his diagnosis of an Adjustment Disorder with anxiety symptoms. There was no capacity for any type of work even at another workplace.
42 On 4 August, Dr Lewis wrote to the Accident Compensation Conciliation Service.[18] He had seen Mr Vlamis since the preceding September. His complaints were:[19]
“… of lowered mood and passive suicidal ideation. He feels that he ‘no longer has a future’. He reports to not have ‘any interest in things anymore’. He feels he does not want to ‘bother anyone’. He reports that he is teary, poorly motivated and lacking in confidence. He does not feel competent. He cannot see a way forward. He reports chronic low grade anxiety symptoms. He feels that his symptoms are interfering with his relationship with his wife and that they ‘now fight a lot’. He states he fell off a ladder and I understand that he had surgical intervention on his wrist. He stated he fell off the ladder because at the time he had intrusive recollection of being back at work and he felt that he lost concentration and subsequently fell.”
[18]Report dated 4 August 2014
[19]Op cit at page 3
43 Dr Lewis diagnosed an Adjustment Disorder with Mixed Anxiety and depressive symptoms. He prescribed an antidepressant, escitalopram, and an anxiolytic, propranolol. Over the eleven months, Mr Vlamis’ overall mental state had improved modestly. But in the absence of the treatment, Dr Lewis expected a deterioration. Mr Vlamis had no capacity for any work.
44 In August, Dr Liu wrote to Mr Vlamis’ solicitors.[20] He thought the back pain would settle within six months but deferred to the physiotherapist for a “more detailed timeframe”. He thought Mr Vlamis was capable of doing modified duties without heavy lifting or sudden movement of his spine. He noted Mr Vlamis suffered from stress and thought it was contributing to his current back pain. In any event, his back pain impacted his daily life in “a mild to moderate degree”.
[20]Report dated 20 August 2014
45 In October, Mr Vlamis went again to Greece, this time to resolve some issues arising out of his mother’s will. There may have been another visit to Greece.
46 On 11 December, Mr Vlamis saw another doctor in the clinic. She summarised his complaints: “chronic back pain, sees physio – physio suggested F1 as some pain with radiation, feels for last 2-3 mnths is getting wors[e], LBP and L leg pain”. She noted her examination findings: “some central back tenderness ‘jumps on palp[ation]’, rom (range of movement) – flexion limited, reflexes – present, walking – normal gait, feels cannot stand for too long … .” She sought an MRI scan. She did not prescribe any pain-relieving medicine.
47 On 15 December, one of his doctors (Dr Suzana Kareva-Lega) requested MRI scans of the lumbar spine. These were investigating the source of his low back and leg pain. Everything was normal except for the L4-5 disc:
“… At L4/5 level the intervertebral disc shows degenerative changes with mild diffuse bulge and central annular fissuring. No significant neural compression. The spinal canal and the neural foramina are normal … .”
48 The difference between these findings and those of the 2013 CT scans is annular fissuring. This could be a significant finding but looking at the clinic’s records it is difficult to know what his doctors made of it. On 12 January 2015, Dr Liu wrote to a physiotherapist, saying “Spiros has been suffering from recurrent back pain. L4/5 disc degeneration and mild bulge on MRI ... .” Dr Liu makes no mention of the MRI in his later reports (7 September 2015 and 17 November 2016).
49 On 17 December, Mr Peter Scott, a surgeon, examined Mr Vlamis at the request of an authorised agent.[21] On his examination, Mr Scott found no more than 10 degrees of movement in any direction with complaints of severe pain extending over most of the length of the lumbosacral spine to the left and right of the midline posteriorly. There was sensory loss over the full length of the left leg. His straight leg raising was limited to 10 degrees with both legs without evidence of sciatica.
[21]Report dated 17 December 2014
50 Mr Scott concluded Mr Vlamis had mild discogenic disease of the lumbosacral spine, “initiated” by his work. There was no evidence of radiculopathy in his legs. The organic problem was an L4-5 disc bulge without evidence of neural compromise. This was inconsistent with the very limited movements of the lumbosacral spine and the sensory abnormality of the left leg. The difference was explained by pain amplification and features suggestive of a non-organic basis.
2015
51 During 2015, Mr Vlamis saw his doctors 22 times. In some way or another, the state of his back was raised three, perhaps four, times.[22]
[22]His back may have been raised on 7 January. The entry is ambiguous.
52 On 22 January, Dr Varma saw Mr Vlamis again.[23] According to Mr Vlamis, his condition had worsened from their last meeting:[24]
“He struggles to cope on a day to day basis, he has nightmares of something or someone hitting him. His sleep is affected. He finds it very difficult to get to sleep and even maintain sleep. His wife keeps pushing him to go out and she feels very tired and at one stage she almost walked out on the marriage.”
[23]Report dated 22 January 2015
[24]Op cit at page 2
53 He remained troubled by his wrists, saying he might have operations on one or both.
54 The diagnosis remained the same as was his incapacity for work.
55 On 30 June, Dr Varma saw him again.[25] He told Dr Varma his condition had worsened in the intervening six months:[26]
“He struggles on a day to day basis. He does have nightmares that something is going to hit him. He gets up at night and keeps hitting his head and asking the question as to why this is happening to him. He describes his problems as if he is under the sea and his whole body is submerged under water, only his hand is out of the water … He feels the damage is so deep to him that it cannot be seen. He has isolated himself from society. He has also become forgetful…”
[25]Report dated 30 June 2015
[26]Op cit at page 2
56 For the first time with Dr Varma, Mr Vlamis was angry. Other than noting it, it did not alter the diagnosis or view of capacity for work. Dr Varma saw him as having low motivation and stuck in a sick role. He thought the group therapy should stop and the meetings with the psychiatrist continue.
57 In July, Mr Vlamis started five physiotherapy sessions under a Medicare Enhanced Primary Care Program. These finished in September. Between January and August 2016, he attended a physiotherapist monthly.
58 On 21 August, Mr Vlamis swore his first affidavit in this proceeding. It deals with his psychological condition only. After speaking about his life in general and the treatment received, he spoke then of the consequences of his psychological ill-health. He stays at home as much as possible with his wife pushing him to go out. He frequently feels down and depressed. He is easily irritated. He avoids seeing his family and friends. He has difficulty sleeping and often has nightmares about work. He has difficulty trusting others. The atmosphere at home is tense and unpleasant. He struggles to decide things and relies on his wife. He has difficulty concentrating, understanding and remembering; so much so that his wife must explain simple things to him and then more than once. He fears driving long distances. Often he feels his only friend is his dog but his wife pushes him to take him for walks. He has largely lost interest in pastimes: watching football, soccer and tennis; and playing pool. He rarely joins his friends for coffee or plays backgammon with them. He is much upset by his inability to work; it affects the way he sees himself.
59 A year later, Dr Lewis wrote a second report; this time addressed to Mr Vlamis’ solicitors.[27] Anxiety was the predominant feature stemming from trauma. He has become highly avoidant. He copes poorly with stress. He is emotional. He has a low mood. He fears being left alone and has difficulties concentrating. His self-esteem has dropped. He feels hopeless and uncertain of his future. His relationship with his wife has deteriorated. He has frequent headaches. His sleep is chronically disturbed because of nightmares about work. He rarely leaves his home and then mainly in his wife’s company.
[27]Report dated 26 August 2015
60 The diagnosis remained, as did the treatment, except that Dr Lewis added mirtazapine, a sedating anti-depressant to assist with sleep. He has no capacity for any work and this would continue into the foreseeable future.
61 Mr Vlamis had an operation on his wrist. He believes the fracture was rebroken and reset.
62 On 25 November, Dr Varma wrote to the authorised agent.[28] He saw some surveillance film and read a surveillance report. What he saw changed his views:
“The worker’s presentation at the time of my examination is absolutely not consistent with the presentation in the surveillance footage. The worker seemed to be very comfortable in all the footage, going alone shopping, driving, chatting with people in a restaurant, doing gardening and the report says that he has been doing those things in a comfortable manner without any distress. That seems to have changed my opinion now, because in my room he was very quiet and would not even open up.”
[28]Report dated 25 November 2015
63 Dr Varma now felt Mr Vlamis could return “to some form of modified alternative duties for which he is trained and qualified”, starting at 12 to 16 hours a week and increasing in consultation with his doctor.
64 On 17 December, David Weissman, a psychiatrist, saw Mr Vlamis at the request of his solicitors.[29] He diagnosed a severe, chronic Major Depressive Disorder with anxiety, panic attacks and traumatisation features. There was no capacity for any work for the foreseeable future. In fact, the prognosis was “very uncertain and guarded and most likely poor, negative and unfavourable, if not bleak”.[30]
[29]Report dated 17 December 2015
[30]Op cit at page 12
2016
65 On 29 January, Dr Lewis wrote to an authorised agent. Mr Vlamis and his wife visited him that day because the agent had given notice of its intention to end his weekly payments on 23 April. The decision was based on Dr Varma’s report of 25 November 2015. Dr Lewis disagreed with Dr Varma’s opinion and said so strongly. Of Mr Vlamis, he said “he has become understandably very angry, disappointed and let down by a system that he has found as unsupportive”.
66 For 2016, the last entry of the records of the Burwood Health Clinic given to me ends on 6 May. From the start of the year until then, Mr Vlamis attended 12 times with one of those visits concerning his back.
67 On 1 March, Dr Lewis wrote again to Accident Compensation Conciliation Service.[31] He reiterated his earlier view about the type of injury, its link to Mr Vlamis’ employment, the degree of incapacity for work and its likely duration. Again, in strong terms, he rejected the view of Dr Varma, adding:
“The fact that Mr Vlamis recent compensation entitlement[s] have come under review as a consequence of recent surveillance, has only sadly aggravated this man’s difficulties and only aggravated this man’s levels of anxiety and disaffection.”
[31]Report dated 1 March 2016
68 On 9 March, Mr Vlamis swore his second affidavit in this proceeding. It deals with the injury to his spine. He experiences constant pain in his back, which varies in intensity. It increases with activity. It occurs in the centre of his back and moves to his left side and down his left leg to the knee. It restricts movement of his back and bending, lifting, pushing, pulling and twisting. He cannot walk for long periods. He still tries to walk but cannot go as far or as fast. He often wears a belt support to protect his back. He cannot sit, stand or lie down for long periods. He enjoyed gardening but now does “bits and pieces” that are less demanding. He still mows their small lawn but usually wears a support. He does “bits and pieces” of household cleaning. His restrictions affect his intimate relations with his wife. He struggles with drying his feet and putting on his shoes and socks. Acute flare-ups of back pain affect his bowel movements.
69 On 31 March, Dr Nathan Serry, another psychiatrist, saw Mr Vlamis at the request of his solicitors.[32] After a detailed psychological history under the heading “Injury details”, Dr Serry records under the heading “Medical history”:[33]
“Your client stated that he does have ongoing low back pain which whilst constant is of fluctuating severity. He said that he has also developed some intermittent pain in his left thigh. He described feeling somewhat physically restricted. He said that he cannot walk for more than 20 minutes.”
[32]Report dated 31 March 2016
[33]Op cit at page 3
70 Mr Vlamis was taking then three medicines for his psychological condition and paracetamol and “various creams” for his back. The only other mentions of his back occur in Dr Serry’s summary of various reports given to him by Mr Vlamis’ solicitors.
71 Dr Serry diagnoses a Chronic Major Depression with features of anxiety, panic and traumatisation. The condition was at least moderately severe. It incapacitated him from all employment for the foreseeable future.
72 On 25 May, Mr Roy Carey, an orthopaedic surgeon, examined Mr Vlamis at the request of the defendant’s solicitors. Mr Vlamis told Mr Carey of his abuse at work, giving examples of ‘colourful, derogatory and vulgar’ language. The examination revealed widespread tenderness, almost no movements of the lumbar spine, no muscle spasm, no wasting. Sensation testing indicated a total hemibody syndrome on the left and no neurological signs. Mr Carey thought the original injury happened in 2009 with the 2011 and 2013 incidents aggravating each other.
73 Mr Carey saw the report on the July 2013 CT scans. He did not know about the 2014 MRI scan. On the report of the former, he commented:[34]
“This indicates old changes from L4/5 and distal, with the possibility of an acute left L4/5 lesion, although if it is truly a ‘diffuse bulge’ as per the report this is recognised to be of old appearance, rather than a disc extrusion, herniation or sequestration which would be more recent, and may well have been the cause of the acute left leg pain which I understand occurred in the course of his work 16.7.2013 … .”
[34]At page 10
74 Strangely, Mr Vlamis denied having an MRI scan. Mr Carey offered to look at the CT scans but, apparently, was unable to do so.
75 Mr Carey diagnosed a Chronic Pain Syndrome, which he described as an idiosyncratic psychological reaction to pain. He did not reject an organic basis to Mr Vlamis’ pain but said:
“It is just that the non-organic signs of abnormal illness behaviour/his Chronic Pain Syndrome are far more prominent than any physical signs of injury.”
76 On 12 July, Dr Weissman re-examined Mr Vlamis, again at his solicitors’ request. Unlike his first report, Dr Weissman does mention Mr Vlamis’ back in his report.[35] First, he notes Panadol and Nurofen as medicines for his lower back pain. Second, he said:
“Mr Vlamis told me that he experiences pain in the middle of his lower back that he has experienced since his employment. He told me that sometimes his pain affects his ability to bend down and put on his shoes and stops him from doing some activities.”
[35]Report dated 12 July 2016
77 Upon questioning, Mr Vlamis spoke of his inability to concentrate and remember, lack of leisure activities, his isolation, occasional visits to the supermarket, limited driving and walking, infrequent showers and occasional gardening. On average, he sleeps three hours nightly. He can sleep up to five or six hours a night. He has difficulty getting to sleep and then staying asleep. He spoke of bad dreams and nightmares about his work experiences two or three times each week where he imagines Peter Jolly swearing at him, abusing and pushing him.
78 Of particular significance are his panic attacks. He has two or three daily, each lasting three or four minutes. They are caused by his wife encouraging or demanding he goes out to shop or for a coffee, whether by himself or with her. In these attacks, he shakes, has tremors, becomes tearful and sometimes hides in bed with the blankets over his head.
79 Dr Weissman maintained his diagnosis, prognosis and opinion of his capacity for work and its duration.
80 In July, Mr Kenneth Brearley, an orthopaedic surgeon, examined Mr Vlamis at the request of his solicitors.[36] He was accompanied by his wife and an interpreter. Mr Brearley thought Mr Vlamis walked and moved normally in his presence and sat comfortably during the examination. Movements of the back were restricted: flexion to about 30 degrees; extension to 10 degrees; and “very marked limitation” of lateral flexion and rotation to right and left. Straight leg raising was to 70 degrees with both legs. All deep reflexes were normal. Sensation in the legs appeared normal. Mr Vlamis complained about a point of marked tenderness over the right side of the lower lumbar spine. He complained of pain in his lower back and in his legs. Mr Brearley only had the report of Ms Bryant of what the July 2013 CT scan showed.
[36]Report dated 14 July 2016
81 Mr Brearley diagnosed mechanical back pain secondary to internal damage to the L4-5 disc. There was no evidence of radiculopathy. He could see no improvement in the condition of his back until his psychiatric problems were resolved. He saw Mr Vlamis’ symptoms as due to back pain and severe depression and introversion. The back needed conservative treatment through physiotherapy and mild analgesics. He was restricted in many activities; in particular, bending, stooping, twisting and heavy lifting. He could not perform his pre-injury employment, whether full time or part time. Without his psychiatric disorder, Mr Vlamis could perform suitable light employment on a full-time basis.
82 In November, Dr Liu wrote again to the defendant’s solicitors.[37] His view of Mr Vlamis had altered: the prognosis for his lower back was now poor because there had been no significant improvement over the “past few years”. He still said Mr Vlamis’ mental health issues contributed to his recurrent lower back pain without saying how. With his mental health issues well controlled, Dr Liu felt he could do modified light work on a part-time basis. The “light” aspect involved no heavy lifting, bending or sudden movement of his spine.
[37]Report dated 17 November 2016
83 Also in November, Robyn Horsley, an occupational physician, examined Mr Vlamis at the request of his solicitors.[38] Although noting a significant psychiatric disability, Dr Horsley said the purpose of her assessment was to focus on Mr Vlamis’ back condition. She recorded in some detail the nature of his work.
[38]Report dated 14 November 2016
84 Dr Horsley noted Mr Vlamis took four medicines, each related to his psychiatric disorder. Her examination of the lumbar spine:
“… revealed fear avoidance behaviour. There was touch sensitivity on light touch palpation. The axial compression test was positive.”
85 Movements of the lumbar spine were limited with flexion of 60 degrees, extension 20 degrees and half the normal range for left and right lateral flexion and left and right lateral rotation. Straight leg raising was reduced to 40 degrees for each leg. The slump test was 90 degrees in each leg and negative. The peripheral nervous system examination revealed a non-organic reduction in light touch sensation, vibration and temperature sensation down the left leg. Reflexes were present and active at the knees and ankles.
86 Dr Horsley concluded Mr Vlamis had an existing lumbar spondylosis and his repetitive and manual work over twenty years aggravated this condition. He now has chronic back pain. She placed restrictions on what he could do. He should avoid: repetitive over reaching; repetitive pushing and pulling; static postures involving the lumbar spine; working in awkward and confined spaces; lifting items greater than 8 to 10 kilograms on an occasional basis; and lifting items up to 5 to 8 kilograms on a repetitive basis. He should adopt a good manual handling technique even when lifting light items.
87 Twice Dr Horsley noted Mr Vlamis was deconditioned and would benefit from increasing his walking program. In his present deconditioned state, he could not sit for more than 15 to 20 minutes, static standing for more than 10 minutes, walking for more than 20 to 25 minutes, dynamic standing of more than 20 to 25 minutes and driving an automatic car for more than 15 to 30 minutes.
88 Finally, Dr Horsley said he is permanently unfit for his previous role as a picker/packer/forklift driver due to his chronic back pain. Implicitly, he has a capacity for work although she did not say what exactly, adding:
“If Mr Vlamis did not have his psychiatric disability, and one was considering his back condition alone, there are considerable barriers to his return to work. He is now 59 years of age, with the last 20 years working as a Picker/Packer and Forklift Driver, and with literacy issues and no computer skills and no other formal qualifications; he is not a realistic re-training, redeployment candidate.
His back condition alone prevents him from returning to the full physical requirements of a role as a picker/packer/forklift driver. His psychiatric condition however, is the primary issue.”
2017
89 Having written to Mr Vlamis’ solicitors in July and October 2016, Dr Lewis wrote a final time in February.[39] Dr Lewis had last seen Mr Vlamis on 20 February. Nothing had changed except the issue of suicide resurfaced. Dr Lewis recorded: “He informed me that he had quite seriously contemplated ending his life over previous weeks”. Dr Lewis re-affirmed his diagnosis, treatment, the link between injury and work, capacity for work and prognosis.
[39]Report dated 20 February 2017
90 The prognosis was very poor because the disorder had become entrenched. This resulted in:
“The majority of Mr Vlamis psychological efforts are now simply directed towards undertaking his basic activities of daily living. His long-term risk of suicide is not insignificant and more recently a focus of clinical attention. He remains highly reliant on his wife who remains at risk of carer burnout. I believe that Mr Vlamis risk of completed suicide down the track if the marriage was to break down would be very high indeed.”
91 In February, Bronwyn Dreher, physiotherapist, wrote to Mr Vlamis’ solicitors.[40] She saw him for the first time in July 2015 and a further four times until September 2015. In 2016, she saw him monthly between January and August. She was aware of the CT and MRI scans. From first to last, there had been no improvement through her treatment. By August:
“… he continued to report significant pain in the lumbar region and left lower limb, as well as intermittent right lower limb pain. There was a moderate reduction in lumbar active range of movement, passive straight leg raise was left 35-40 degrees and right 50 degrees, there was stiffness and pain on palpation in particular in the L3/4-5/S1 joints, and tightness in the associated musculature … .”
[40]Report dated 25 February 2017
92 Ms Dreher believed he could not return to his pre-injury work and for anything else there would be physical restrictions: no lifting greater than 5 kilograms; no pushing or pulling of heavy loads; no repetitive or prolonged bending; no prolonged sitting or standing; and walking short distances.
93 On 1 March, Mr Vlamis swore his third affidavit. It differed from the first two, in that it referred to the psychological and back injuries. Both Dr Lewis and his wife encourage him to go out with friends and on his own. He finds this stressful. He can attend appointments on his own but prefers the company of his wife. He feels his condition worsened from his last affidavit. He is more irritable and intolerant. He raises his voice, has trouble communicating and is very frustrated. He forces himself to see his own family. He infrequently sees his friends. His anxiety increases if too many people are there or something upsetting is said or there is too much going on around him. His sleep is poor because he often wakes thinking about all the bad things that happened at work. He often argues with his wife and loses his temper. He feels bad because he knows she is trying to help. He is quick to anger, to cry and be frustrated. He knows he cannot work. He has thought of suicide. He usually feels gloomy and helpless.
94 Regarding his back and left leg. He has pain in his left leg when walking. He sometimes limps. He has increased pain getting out of bed; pain while doing household tasks, walking up and down stairs. He has difficulty to putting on trousers and socks. He feels much older than he is because he saw himself as fit and strong.
95 Also on 1 March, Mr Vlamis’ wife, Fereniki, swore an affidavit. She traced the start of his psychological problems to about fifteen years earlier. She describes him as an anxious, isolated, inactive person, who needs pushing to do things. She describes a number of changes about her husband which started from about February 2009: often limping; often grabs and rubs his back; moves more slowly; slow to get of bed in the morning; needs breaks on long drives; avoids stairs if possible; uses a shoehorn to put on shoes; and often changes position and stands and sits. She rubs his back. He will hold onto her to turn over in bed. He is a lot more restless.
Current complaints
96 Mr Vlamis has difficulty sleeping because of nightmares about work. He sleeps on his left side. He cannot sleep on his back or stomach. He sometimes gardens when his back is not hurting. He mows the lawn with his wife. When his wife is gardening he will help his wife. Despite the fall from the ladder due to anxiety, he has climbed it since. Once he used it to climb on the roof of his house to fix the cause of a leak.
97 Mr Vlamis says his back pain is always present but its intensity varies. He spoke of “bad” back pain. Sometimes, he experiences it every three weeks, sometimes every six weeks. However, if he lifted something suddenly, it happened immediately.[41] On bad days, he wears a brace. He has worn it for between two and two and a half years. He also wears it when he thinks he might feel bad pain. He walks slowly and carefully. He limps. On those days, sometimes it is hard to put his left foot down because it hurts when he steps on it.[42] When his back is very bad, he can spend up to three days in bed.
[41]Transcript, page 43
[42]Transcript, page 43
98 Mr Vlamis does not use prescribed medicines. He tries to avoid taking more medicines because he takes enough already. Although about three months ago, he had a terrible pain and could not get out of bed. Dr Liu prescribed tablets. Since 2013, this was the second time he had done so.
99 Mr Vlamis does not go out of his house and walk. He does not feel like walking or seeing people. His wife forces him to go walking. The same applies to doing things about the house. He can drive for about 20 minutes. He can drive further if someone is with him. This is due to anxiety but he says his back limits him also. Depending on the level of pain, his back can limit him to as little as 10 minutes driving and beyond 20 minutes. He no longer watches football, soccer and tennis. He no longer plays pool and backgammon. He gets upset, loses his patience and has no desire to do those things. He argues with his wife more. His stress stresses her.
Video
100 In May 2016, Mr Vlamis saw Mr Carey. He was filmed before and after the appointment. I saw the film. The film showed Mr Vlamis walking. He says he was leaning on his wife while walking and she was holding onto him. He holds onto her for psychological reasons.[43] This contrasted with the way Mr Carey saw him walk.
[43]Transcript, page 48
101 Between 23 July 2015 and 25 May 2016, an agent or agents of the defendant attempted to watch Mr Vlamis on twelve occasions, spending an extraordinary 61 hours doing so. He was seen on nine of those occasions where the period of watching totalled 49.25 hours. I assume he was filmed on those occasions. I was not shown the film, I infer it did not help the defendant’s case. More importantly, the film I did not see does not influence me one way of the other.
Legal considerations
102 To gain permission or leave, Mr Vlamis must prove:
(a)he sustained an injury to his spine arising out of or in the course of his employment with the defendant. I am satisfied he has. I accept Dr Horsley’s diagnosis;
(b)the injury must be a “serious injury”. This concept is defined in s134AB(37). Here, it is a permanent serious impairment or loss of a body function where the impairment or loss concerns his spine;
(c)the impairment or loss due to the injury must be permanent, which means likely to last for the foreseeable future;[44] I am satisfied the impairment or loss to Mr Vlamis’ spine is permanent;
(d)“serious” is satisfied by reference to the consequences of his impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of body function;[45]
(e)the pain and suffering consequence of an injury encompasses both Mr Vlamis’ experience of pain and suffering and the disabling effect of the pain on his physical capabilities (including capacity for work) and enjoyment of life;[46]
(f)an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked, and as being at least very considerable;[47]
(g)where a plaintiff relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) requires me to ignore the psychological or psychiatric consequences of the physical injury. Maxwell P, in Mutual Cleaning Pty Ltd v Stamboulakis,[48] described the extent of the operation of paragraph (h).
[44]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[45]Section 134AB(38)(b)
[46]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs [9] and [15]
[47]Section 134AB(38)(c)
[48](2007) 15 VR 649 at paragraph [9]
103 The defendant’s counsel relied on Meadows v Lichmore Pty Ltd.[49] Mrs Meadows suffered a physical injury and then developed a pain syndrome or functional overlay. The case concerned s134AB(38)(h) and turned on the correctness of the practice adopted by judges in approaching this kind of serious injury question, the “substantial organic basis”. Section 134AB(38)(h) has no application in this case. The psychological and physical injuries of Mr Vlamis developed separately and overlapped. The former was not a consequence of the latter. Counsel for Mr Vlamis drew my attention to a passage in Poholke v Gold Acres Trading Pty Ltd,[50] arguing it set out the correct approach in a case like this. The Court said:
“The establishment of those matters, before the primary judge, was complicated by the fact that the applicant had sustained a serious injury to his neck two years before he suffered his back injury, and that the consequences to him as a result of the neck injury had persisted at the time that he sustained the back injury, and up to the time of the hearing of the application for leave before the primary judge. In those circumstances, it was necessary to identify each of the injuries sustained by the applicant, and to delineate the consequences of each injury, in terms of the pain and suffering consequences and loss of earning consequences claimed by him.”
[49][2013] VSCA 201
[50][2016] VSCA 232 at paragraph [65]
104 Both parties urge me to adopt the same approach but came at it from different directions. I agree with the direction taken by Mr Vlamis. In principle, there is no difference between two physical injuries and a psychological injury and a physical injury.
Discussion
105 The critical incident happened on 15 February 2013 when Peter Jolly swore and yelled at Mr Vlamis. The outburst affected him. He stopped work. After an apology he returned. Despite his wife telling him to resign, he did not, for he needed to support his family and felt he would not find other work. When he did stop working on 19 July 2013, he told his wife “he simply could not cope anymore”.[51] It is not a coincidence he re-injured his back three days earlier. In his second affidavit, he attributes stopping to his psychological condition, adding “it was a relief to also give my back a rest”.[52] He exaggerates when saying in his oral evidence that absent the anxiety and stress he would have stopped work because of the back pain. His condition then was not that bad for him to have given up the work he saw as so necessary. Nevertheless, it was the extra factor leading him to stop. To that extent it was important.
[51]Affidavit of Fereniki Vlamis at paragraph [13]
[52]At paragraph [11]
106 Most people with chronic, painful conditions suffer a psychological reaction. The requirement to separate the psychological effects from the physical is difficult for the medical profession. This case is different. The psychological and physical injuries are longstanding, arising independently of each other. I daresay the task in this case is equally difficult. Dr Horsley was asked to do so. She did not say she could not. She gave an opinion where she did so. She was fully aware of Mr Vlamis’ psychological condition. She was given all of the psychiatric reports provided to me.[53] She examined a person showing signs of a psychological problem and her examination revealed non-organic findings such as touch sensitivity and axial compression. She found the range of movement in the lumbar spine reduced. I would say, on her figures, moderately so.
[53]See Appendix 1 to her report
107 From Mr Vlamis description of his work with the defendant, the results of the CT scans, the opinions of others and her examination, Dr Horsley diagnosed a permanent aggravation of underlying spondylosis causing chronic pain, forever preventing a return to his pre-injury employment. Others join her in that conclusion. He has done this work for many years. Denied it, and from a physical perspective only, he is unlikely to return to any form of employment. As she said:[54]
“If Mr Vlamis did not have his psychiatric disability, and one was considering his back condition alone, there are considerable barriers to return to work. He is now 59 years of age, with the last 20 years working as a Picker/Packer and Forklift Driver, and with literacy issues and no computer skills and no other formal qualifications; he is not a realistic re-training, re-deployment candidate.”
[54]Op cit at 6
108 Dr Horsley placed restrictions on what Mr Vlamis could do in other employment. He must avoid overreaching repetitively, pushing and pulling repetitively, static postures involving the lumbar spine, working in awkward and confined spaces, occasionally lifting items greater than 8 to 10 kilograms, and repetitively lifting items greater than 5 to 8 kilograms.
109 Dr Horsley knew of the 2013 CT scans but not the 2014 MRI scans. She read the report of the CT scans. She did not know about the annular fissuring. None of the medico-legal specialists knew of the annular fissuring. Dr Liu knew, as did the physiotherapist, Ms Dreher. Ms Dreher treated Mr Vlamis on many occasions over two years. She had plenty of opportunity to determine his physical limits due to organic reasons. By August 2016, she described his loss of lumbar movement as moderate. I accept those losses represent the physical consequences of his degenerative lower back and leg pain.
110 I accept Mr Vlamis has a painful lower back and left leg. The pain in the back is always present. Its degree varies. Often he tells his wife of his pain and she rubs his back to ease it. She does so particularly when he has “flare-ups” of pain. He is not prescribed medicines to ease his pain.
111 His L4-5 disc is degenerative. There is a mild, diffuse bulge and central annular fissuring but no disc extrusion. The addition of the fissuring means the disc is more degenerative than any of the specialists supposed with the possible exception of Mr Carey. Whether it better explains the back and leg pain I cannot say. There is minimal degeneration in the L3-4 and L5-S1 discs. Overall, from a radiological perspective, the lumbar spine is moderately degenerative.
112 I accept the state of his back in particular places physical restrictions on what Mr Vlamis can do. I accept the restrictions stated by Dr Horsley and Ms Dreher: they are broadly similar. As restrictions go, they are also moderate.
113 Dr Horsley notes his current functional tolerances. They are so because Mr Vlamis is “significantly deconditioned”. Among other things, this affects his ability to walk. There is a physical component, in that he limps. In other circumstances, he would benefit from an increased walking program but psychological factors prevent this. He is unwilling to leave the home. His “deconditioned” state could improve but his psychological state stops that happening. How much he could improve is speculative.
114 Looking at his particular problems. Mr Vlamis once enjoyed walking fast and for long periods. He can do neither now. More importantly, he does not walk at all unless pushed by his wife. He stays at home as much as possible unless pushed by his wife to get out and about. His inability to walk far and fast is immaterial for there is a psychological barrier to him walking at all unless pushed and, often, accompanied by his wife. Even his wife pushing him can be dangerous for regularly he suffers panic attacks.
115 He sleeps poorly: in the main, that is not due to his pain but his memories of work, especially nightmares. Nevertheless, there are physical aspects. Lying in one position for a long time increases his pain. He tosses and turns. He needs to hold onto his wife when turning over in bed; presumably doing so, lessens the pain.
116 Mr Vlamis cannot sit and stand for long periods and changes his position as much as possible. Consistently, Dr Lewis has pointed to his chronic anxiety symptoms. These include hyperarousal symptoms characterised by irritability and agitation. An irritated and agitated person has trouble staying in the same place.
117 Mr Vlamis liked gardening. He stills gardens but “does bits and pieces”. He still mows their small lawn. He does “bits and pieces” of the cleaning. He feels bad in not being able to help his wife more.
118 Mr Vlamis’ psychiatric symptoms affect his sexual relationship with his wife. In July 2016, he told Dr Weissman his sex drive was worse than when he last saw the doctor and that he does not like sex. Sexual relations are an important part of their relationship but if Mr Vlamis no longer likes it for psychological reasons then it will occur less frequently. The condition of his back may lessen the frequency of such relations.
Failure to mention
119 Mr Vlamis has seen many specialists over the years. Dr Lewis has seen him weekly for about four years. Never once does he speak of Mr Vlamis’ back or legs in his reports. In cross-examination,[55] Mr Vlamis said he told Dr Lewis about his back “a few times” and then shortly later, “one, two, three times”. Two questions later, he is asked:
Q:“I suggest the reason you don’t talk to him about your back pain is that in the scheme of your life that’s a very, very small thing?---
A:I agree but it is a problem from 2009 and will not go away.”
[55]Transcript, pages 18 and 19
120 Mr Vlamis did not mention his bad back in his first affidavit in August 2015 because it “was bad, but not that bad”.[56] It got ‘that bad” some time in 2016. He says by 9 March 2016 (the date of his second affidavit), he could not stand the pain any longer.
[56]Transcript, page 39
121 Dr Lewis was very sympathetic to Mr Vlamis’ predicament. That emerges in his reports. He angrily rejected Dr Varma’s conclusions after the latter saw some surveillance film. He has tried hard to help him over the years. If he could not stand the pain any longer by March and he had mentioned his back to Dr Lewis one, two or three times, then it is surprising Dr Lewis makes no mention of the back in any of his reports. If raised, it is unlikely Dr Lewis would not explore it.
122 Dr Weissman saw Mr Vlamis twice. He took a careful history on both occasions. There was no mention of the back following the first and passing mention after the second. This mention was overtaken by Mr Vlamis’ desire to tell Dr Weissman about his panic attacks. Mr Vlamis says he did not tell Dr Weissman about his back in December 2015 but did in July 2016 because he was asked by Dr Weissman. Accepting this is so, it suggests Mr Vlamis thought little of his back on both occasions in the context of his psychological problems.
123 Mr Vlamis says he mentioned his back to Dr Varma at least two times even though the doctor makes no reference to his back in his reports. In July 2014, Dr Varma noted the “broken” wrists following a fall in February. One of his wrists was in plaster. He notes them again in January 2015 where Mr Vlamis raises the possibility of an operation. Perhaps, with an obvious injury, Dr Varma would ask about it in July and again in January when he sees him for the next time. Having shown an interest in a physical injury, surely it was an opportunity to raise his back then and in June 2015?
124 In May 2014, the authorised agent sent Mr Vlamis to an organisation called WorkStreams for a vocational assessment. The assessor was Monica Hainal. Her qualifications are in psychology. She spoke to him for about an hour. His wife was present. At the time, Mr Vlamis had a broken left wrist and a dislocated right thumb from a fall from a ladder four weeks earlier. In her lengthy report, Ms Hainal does not mention his back. He says he did. She examined a number of categories of “suitable employments”. Many of these are somewhat physical. At first sight, it is surprising she omitted to mention his back unless he did not tell her. However, her qualification is in psychology. She is not an occupational therapist. It appears Ms Hainal was not told by the authorised agent of the physiotherapy in 2013 and 2014. Counsel submits Ms Hainal was tunnel-visioned, focussing solely on the psychological. That could well be correct. I will not draw any inference from Ms Hainal not mentioning the back in her report.
125 I cannot accept the submission the psychiatrists do not ask about the back because it does not intrude into the psychiatric presentation. The physical state of a person can affect the psychological state. It is unlikely Mr Vlamis told Doctors Weissman and Varma and they took no notice but it is most unlikely he told Dr Lewis and he took no notice. I am satisfied Mr Vlamis did not tell any of the psychiatrists of his back except Dr Weissman on one occasion and Dr Serry shortly after his second affidavit which concentrated on his back.
126 Over the years, doctors from Burwood Health Care treated Mr Vlamis’ psychological and physical conditions. His principal doctor is Dr Fujun Liu. None has referred him to an orthopaedic specialist or a neurosurgeon for an opinion about his back and legs while in March 2015 he was referred to a specialist about his left wrist. He was not referred to a pain-management program. He was not prescribed analgesics other than Panadeine Forte in 2013. He buys weaker analgesics “over the counter” from chemists.
127 When judged by comparison with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequences of Mr Vlamis impaired spine are moderate. They are not more than significant or marked and at least very considerable. His lower back is moderately impaired. It places restrictions on what he can do physically. It denies him his former occupations. Given his age and background, it would deny other forms of work even through his psychological state rules out any work. In his current psychological state, there is no possibility of any work. It restricts other areas of his life but only to a point. Those areas are more restricted by his psychological condition. Although pain is present always. It is at a modest level, witnessed by his limited complaint and treatment. His limited complaint is not due to stoicism. He has sought and received much treatment over the years. His psychological state is overwhelming.
128 I am not prepared to give leave to Mr Vlamis to start proceedings for pain and suffering damages in relation to his spine.
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