Williams v Victorian WorkCover Authority and Concrete Equipment Australia Pty Ltd
[2017] VCC 1158
•23 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03753
| ROBERT EDWARD WILLIAMS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| CONCRETE EQUIPMENT AUSTRALIA (TRADING) PTY LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 May 2017 | |
DATE OF JUDGMENT: | 23 August 2017 | |
CASE MAY BE CITED AS: | Williams v Victorian WorkCover Authority & Concrete Equipment Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1158 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the spine – psychiatric impairment – Chronic Pain Syndrome - pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Church v Echuca Regional Health [2008] VSCA 153; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr M Fogarty | Slater and Gordon Lawyers |
| For the Defendants | Mr C Miles | Wisewould Mahoney Lawyers |
HERHIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the second defendant on 16 September 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the spine.
5 The plaintiff also brought an application pursuant to clause (c), claiming to have suffered a severe psychiatric impairment, which has been diagnosed as a Chronic Pain Disorder.[1]
[1]Transcript (“T”) 1, T55
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, [may be] fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Counsel for the plaintiff submitted the plaintiff has been rendered totally incapacitated by reason of his physical injuries and his psychiatric injuries.[2]
[2]T55
13 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
15 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
16 The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”. Brooking JA held,[4] having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[5] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[3][1998] 3 VR 833
[4]at 846
[5](1995) 21 MVR 314
17 Winneke P, in Mobilio,[6] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[7]
[6]Mobilio v Balliotis (supra)
[7]see also Phillips JA at 858 and Charles JA at 860 to 861
18 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c).[8]
[8] per Ashley JA in Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
19 Counsel for the defendants submitted the plaintiff’s application should not succeed under clause (a) as his spinal impairment is non-organically based. Further, the consequences of any Chronic Pain Syndrome relied upon pursuant to clause (c) are not severe.[9]
[9]T69
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[10] and Grech v Orica Australia Pty Ltd & Anor[11] in reaching my conclusions.
[10](2005) 14 VR 622
[11](2006) 14 VR 602
21 The plaintiff relied upon two affidavits and was cross-examined. His partner, Kylee, swore an affidavit on 29 May 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
22 The plaintiff is aged thirty-four, having been born in July 1983. He is presently in receipt of Newstart payments.[12]
[12]T7
23 Having completed Year 9, the plaintiff did some labouring work and then worked in a number of manual roles. He moved to Darwin in 2006, where he undertook similar work.[13]
[13]T7
24 The plaintiff then moved back to Melbourne in about 2010, and after three months’ work as a sandblaster/spray painter, on 28 August 2011, commenced work with the second defendant in a similar role. He was paid $23.50 an hour, plus overtime.
25 In cross-examination, the plaintiff agreed he did not have a job for long periods prior to the said date and his relationship with Kylee was “up and down”, with a number of separations.[14]
[14]T8
26 The plaintiff agreed he had had some trouble with the police over the years, but had never been jailed for any criminal offences. He had been convicted of various driving offences, assault and accessory to armed robbery. He did not think he had any apprehended violence orders or intervention orders before his WorkCover case.[15] Such orders had been made following his injury.[16]
[15]T10
[16]T13
The incident and following treatment
27 On the said date, the plaintiff suffered injury when he fell from a ladder while sandblasting. He landed on his back on some sand and on a buried block of timber and felt immediate lower back pain (“the incident”).
28 The plaintiff was driven to the Emergency Department at the Northern Hospital by a co-worker, where he stayed overnight. He was given a neck collar and had scans of his neck, and x-rays of his chest and spine.
29 On 17 September 2011, the plaintiff was discharged with painkillers and told to see his general practitioner. A couple of days later, he saw Dr Sam Beitner in Sunbury, who prescribed some medication.
30 The plaintiff returned to Dr Beitner about three days later with severe neck pain and restricted movement. He arranged for the plaintiff to have a cervical CT scan, which was carried out later that month.
31 In October 2011, the plaintiff commenced physiotherapy with Ms Melli Murcott, and also had some hydrotherapy. The following month, he had a lumbar MRI scan, and shortly thereafter, a cervical MRI scan of his cervical spine.
32 In February 2011, the plaintiff moved from Sunshine to Lakes Entrance. In May 2012, he started to see Dr Elisabeth Wearne in Lakes Entrance and also a local physiotherapist, Ms Nicole Kee.
33 In September 2012, the plaintiff started seeing a psychologist, Ms Alison Crotty. That month, he also had an MRI scan of his right shoulder and knee organised by Dr Wearne.
34 In October 2012, the plaintiff attended neurosurgeon, Mr Patrick Chan, on referral from Dr Wearne. Mr Chan recommended pain management, but funding was refused by the insurer.
35 The plaintiff had a transport accident on 26 October 2013 when he was a passenger in a car that hit a fence. He attended casualty, but was not admitted. He developed some increased back pain, as well as some right hip pain. There was a temporary flare-up of his back pain following this accident, but it soon returned to how it had been beforehand.
36 As of March 2016, when he swore his first affidavit, the plaintiff was seeing Dr Wearne monthly and sometimes saw a general practitioner, Dr Pitt, at another clinic, because it was difficult to see Dr Wearne.
37 The plaintiff was also seeing Ms Crotty about monthly. He did home exercises that were recommended to him by his physiotherapist. He took medication including Tramadol, Naprosyn and Panadol Osteo for his injuries.
38 The plaintiff currently sees Dr Wearne about once a month, and his psychologist, Ms Crotty, as required. He sometimes speaks to her on the phone. He does hydrotherapy once or twice a week.
39 The plaintiff had physiotherapy in late 2016, and in March 2017. He was given some new exercises which he does at home and he tries to regularly walk for exercise.
40 The plaintiff continues to take Panadeine Forte, six to eight per day, Naprosyn, approximately two to four times per week, and Panadol Osteo, about three each day. He sometimes uses Deep Heat, particularly for his lower back, as well as occasionally using heat packs.
Work following the incident
41 The plaintiff did not return to work with the second defendant after the incident. In September 2011, he lodged a WorkCover Claim, which was accepted, and weekly payments were made.
42 As of March 2016, the plaintiff did not feel capable of working. He had only ever done manual work and never had had an office job. He was not good with computers. He did not think he would be able to return to physical work in the future.
43 The plaintiff tried to go back to work in about August 2014, working on a fishing boat; however, he found he was unable to do any of the heavy lifting. He lasted nearly two weeks, but was of no use to his employer and was unable to do the duties required, so he ceased working in that job.
44 In about 2014, the plaintiff helped Kylee on a few occasions, delivering supermarket catalogues. He walked around for short periods with her. He did very few deliveries and only helped out from time to time. He did not get paid for this work. Kylee used to do deliveries twice a week.
45 Around 2014, the plaintiff started some courses, including a traffic control course in Orbost and an earth works course in Bairnsdale. He was unable complete more than two or three days of each course, as he had trouble understanding the course work and the reading involved. His reading and writing skills are limited.[17]
[17]T47
46 The plaintiff did two days of the week-long traffic control course. However, he could not work in that field because he would be standing for hours, and he cannot stand for too long.[18]
[18]T27
47 Further, the plaintiff had difficulty sitting for long periods due to back pain. He was unable to complete either course due to his lack of comprehension and reading skills, and his back pain.
48 The plaintiff does not currently feel capable of working because of pain, particularly in his lower back. He is restricted in his ability to perform activities requiring repetitive bending, lifting and twisting, due to his back and neck pain. He has trouble lifting heavy items, particularly because of his back pain. In all those circumstances, he is worried about his financial future.
49 The plaintiff’s psychological symptoms also restrict his ability to work and his concentration and memory are poor. He lacks energy and has noticed his mood is generally lower than it was before the incident.
50 The plaintiff was obliged, as a part of Newstart, to look for work. He did the traffic course and the earthmoving course at his own instigation. He was interested in getting a truck licence. The courses were funded under VET government programs, and the costs thereof have to be refunded when he obtains a job.[19]
[19]T23
51 There is a computer at the plaintiff’s home but he only really plays Candy Crush. It is easy to access Facebook, as he had gone on Kylee’s Facebook. The plaintiff obtains meditation CDs from his psychologist but he has not been involved in any meditation program online.[20]
[20]T24
52 The plaintiff applied for a job at Repco as a parts interpreter, but was unsuccessful.[21] Years ago, he also applied for a similar job with a Gippsland truck centre. He applied for those jobs to get a job to work to provide for his family. He had to try working to see what he could do.[22]
[21]T24
[22]T25
53 The plaintiff went through a good stage where he was looking for work constantly. Before the incident, he could apply for two or three jobs and end up with two of them. It has just been “dead ends” since the incident, having really not had any response to any job application.[23]
[23]T25
54 It is pretty much the situation now that the plaintiff just cannot hold a conversation with people. He cannot ask them normal questions. He cannot relate to what has to be done in a particular job. It was a lot worse when he had the psychosis and he had no hope of communicating, as “it was just a big dream”.[24]
[24]T48
55 The plaintiff has asked about potential work through word of mouth, or picks up an application and puts in his résumé, “like at the servo” about six months ago. He has not applied for any jobs this year. He has definitely looked at jobs and positions.[25]
[25]T48
56 The plaintiff has searched for jobs online to see what is available in the area. There are a lot of “community sort” of jobs in Lakes Entrance, like youth and justice, liaison officers and assistant nurses.[26]
[26]T27
57 The plaintiff also applied for work at a vegetable and food processing plant, but could not do the heavy lifting involved with repetitive lifting of 15 to 20 kilograms over an eight to twelve-hour shift, with constant standing on the factory floor.[27] The service station job also required the plaintiff to load the chiller with cartons of drink.[28]
[27]T49
[28]T26
58 The plaintiff agreed he discussed a range of jobs with Dr Bloom. Dr Bloom had suggested light process work, but the plaintiff could not do the heavy lifting, and constant standing that was involved.[29]
[29]T27
59 The plaintiff did not know what a despatch clerk job involves. He does not believe there are any jobs for car park attendants in Lakes Entrance.[30]
[30]T27
60 The meter reader job sounded exciting at first, but after the plaintiff was told what it involved, it just did not fit with his problems, as it involved long periods of walking and bending. Whilst he can bend and walk, these activities constantly aggravate his lower back pain. Further, his neck is aggravated if he twists too much.[31]
[31]T28
Other consequences
61 As of March 2016, the plaintiff had continuing constant lower back pain which was, at times, severe, particularly if he did too much, or bent down, or lifted up one of his children. When he experienced severe back pain, which was at least once a day, he tried to walk it off or lie down for a while and wait for it to settle.
62 The plaintiff experienced pins and needles and numbness in his right leg, and a burning sensation down it. At times, his leg felt weak and like it was going to give way.
63 The plaintiff continues to suffer variable, constant fluctuating lower back pain. He is never free of back pain. He experiences a throbbing pain, which fluctuates in intensity. His back movement is restricted and his pain is aggravated by activity and is generally worse in colder weather.
64 The plaintiff’s pain is in his lower back and neck, down his shoulder. He suffers pins and needles and a burning sensation. Pain is also in his hip and his buttocks and in the front of his right thigh.[32]
[32]T42
65 The plaintiff continues to experience right leg pain on and off and experiences a burning pain in his right leg at times. He experiences numbness and a pins and needles sensation in his right leg. If he has to stand for long periods, he tends to shift his weight onto his left leg to take the pressure off his right.
66 As of March 2016, the plaintiff experienced constant neck pain. If he looked up, he experienced a cramping sensation in his neck. If he looked sideways, he often experienced a sharp pain in his neck and pain down his right arm. He felt pressure in his head and suffered headaches. His neck movement was restricted, and he suffered pins and needles down his right arm.
67 The plaintiff continues to suffer fluctuating aching pain in his neck, which is aggravated if he twists it or looks up or down too much. When he experiences bad neck pain, he usually suffers headaches, which can be very painful. He feels pain in the back of his head and feels pressure behind his eyes.
68 The plaintiff continues to experience a burning radiating pain from his neck into his right shoulder, as well as pins and needles down his right arm into his hand. His right arm and hand feels weak a lot of the time.
69 As of March 2016, the plaintiff experienced right shoulder pain, particularly if he tried to lift anything above shoulder height. His right arm was also weak.
70 In both affidavits, the plaintiff described occasional pain and swelling in his right knee with restricted movement. In his earlier affidavit, he described his knee occasionally locking up.
71 As of March 2016, the plaintiff described difficulty sleeping because of his injuries. In particular, his back pain woke him during the night if he twisted in his sleep. On occasions, he was woken by right shoulder pain if he lay on his shoulder for too long. It sometimes took him a long time to get back to sleep if he was woken by pain.
72 The plaintiff currently has disrupted sleep every night due to back pain and has trouble getting to sleep. He continues to have trouble getting back to sleep if woken by pain, and as a consequence of broken sleep, he usually feels tired during the day.
Tolerances
73 When he first hurt himself, the plaintiff used a walking stick and also had a neck brace for quite a while, but stopped wearing it after rehabilitation and physiotherapy, as he improved. He limps half the time, or just about all the time. He does go at times without limping but not for very long.[33]
[33]T34
74 The plaintiff has difficulty standing still for any length of time and always has to walk around.[34] He probably told Dr Middleton he could not stand still for more than five minutes and he could not lift more than 5 kilograms and had trouble lifting with his right arm. Twisting his neck quickly gives him a problem.[35]
[34]Complaint to Mr Hartley
[35]T34
75 The plaintiff was shown an hour-long DVD taken on 15 December 2016. He agreed he was shown initially standing and walking outside Riviera Automotive Workshop between from about 9.18 to 10.16.[36] He then went to the Bairnsdale public library, where he was inside between 10.17am and 10.53am.
[36]T39
76 The plaintiff agreed that he was shown standing still for more than ten to fifteen minutes but could do so because he was leaning on something.[37]
[37]T40
77 The plaintiff then caught a taxi back to the automotive workshop and picked up his Toyota. He was then shown outside Woolworths car park in Lakes Entrance.[38]
[38]T40
78 The plaintiff accepted he was shown in the film bending and stooping to an extent when he was assisting another person to break into their car. He agreed he told Mr Hartley he avoided, where possible, bending and stooping, because it increased his pain. The plaintiff denied he was exercising good manipulative skills trying to break into the car, saying he would not make a car thief.[39]
[39]T41
79 The plaintiff agreed he was shown twisting his neck on several occasions in the film, but it was not a quick twist. He did what he could and he was not going to stop trying. However, he experienced pain when twisting his neck and from bending down and grabbing things. He does a good deed whenever he can. There is not much chance of him doing things repetitively and constantly.[40]
[40]T42
80 The plaintiff did not believe he could go to work and put up with a bit of pain and perform the sort of movements that were shown on the video.[41]
[41]T42
81 Prior to the incident, the plaintiff enjoyed riding motor bikes. However, as of early 2016 when he swore his first affidavit, he no longer had a bike and did not go out on rides with his mates any more. Motorbike riding was too uncomfortable with his injuries.
82 The plaintiff lost his driver’s licence for eleven months in May 2016 for drink driving, and also speeding.[42]
[42]T16
83 In mid 2016, the plaintiff purchased a Harley Davison. He had been passionate about motorcycles for a long time. He has ridden his motorcycle a few times since he swore his first affidavit. He took his thirteen-year-old out on it a few times.
84 The plaintiff bought the Harley Davidson with part of his total and permanent disability payout of $140,000 which he received last year. He has gone through a lot of that payout, having had a lot of debt before. He bought a second-hand four-wheel drive and also the bike which is a collector’s item. He has virtually doubled his money on the bike before even selling it.[43]
[43]T29
85 The plaintiff is restricted in his ability to ride his motorbike because of back and neck pain, and riding it causes increased pain. He still misses going on long rides with his mates. He has been advised by his lawyers he should not be driving his motorcycle, and he has accepted that advice and will not be riding until he gets his licence back.
86 The plaintiff has ridden the bike while unlicensed, although not recently. He has yet to re-apply for his licence.[44] He has never been a member of the Hell’s Angels.[45]
[44]T30
[45]T17
87 Sitting in the car for long periods continues to cause the plaintiff increased back pain. He needs regular rest breaks if he travels longer distances. Travelling to Melbourne by car, he gets a lot of back pain, usually for a number of days afterwards.
88 The plaintiff continues to be restricted in his ability to participate in activities with his children. He described his injury as having a dramatic effect on these activities in his first affidavit. He could not do half of what he used to. He could not jog with his eldest daughter for athletics training. He had tried to give his children a piggy back, but it was very painful. If his children fell asleep on the couch at home, he struggled to lift them and take them to bed.
89 The plaintiff was unable to go rollerblading or camping with his children. He was not able to do the things a dad should be able to do, and that upset him a lot, and caused him to have mood swings. Recently, going to the movies with his children, he had to get up and walk around three or four times during the film due to back pain. He found this situation very frustrating and upsetting.
90 The plaintiff presently does some mowing and occasionally some vacuuming. Heavier jobs around the house and garden tend to cause increased back and neck pain. He does what he can.
91 The plaintiff still does bits and pieces of gardening, not a great deal. Weeding aggravates his back just from bending and kneeling, but he still does what he can.[46]
[46]T32
92 The plaintiff needs to be careful to avoid aggravating his back and neck. He takes longer than he used to when doing jobs around the house because of his pain.
93 Prior to his injury, the plaintiff had trained in boxing and generally had punching bags at home. Since the incident, he has given his boxing bag to his nephew. The plaintiff still has a floor to ceiling and speedball and pads, which are packed away. He tried to work out on the bag, but it just aggravated his injury and hurt him more than doing any good.[47]
[47]T32
94 The plaintiff played a lot of football and cricket in the past and would have liked to have kept playing but did not believe he would be able to do so now with his injuries.
95 Just before starting work with the second defendant, the plaintiff was doing a cricket pre-season with his brother-in-law at Sunbury.[48] The plaintiff had also played a couple of community games of football in the Northern Territory.[49]
[48]T51
[49]T33
96 The plaintiff used to enjoy playing golf. Years ago, he played competition and later used to go out maybe once or twice a month with mates. He had tried to hit a golf ball since the incident, but the swinging and twisting caused back pain and he had not played a round of golf since.
97 The plaintiff occasionally goes fishing now, but nowhere near as often as before the incident, when he used to go about once a fortnight. He has been fishing only a few times in the last twelve months, largely because of his back pain. He has not taken his children fishing for a long while, although that was one of the things they used to enjoy. He had not fished off the river bank for a long time – at least six months.[50]
[50]T31
98 The plaintiff enjoyed four-wheel driving before the incident. He has been out in the bush only a couple of times since. This activity caused him significant back pain and is now not enjoyable.
99 The plaintiff bought a boat with his insurance payout to take his children out on a biscuit boat over summer. He has taken it out once.
Psychiatric health
100 The plaintiff had some significant mental health issues in around 2011 when he had become stressed and anxious about his injuries and his inability to work.
101 In February 2012, the plaintiff was taken by his partner to Bairnsdale Hospital as she was worried he had taken an overdose. During that year, he had made a number of suicide attempts.[51]
[51]T17
102 The plaintiff was admitted to Latrobe Valley Regional Hospital as an involuntary patient on 10 February 2014, having initially attended as a voluntary patient. His behaviour was terrible at that time and he could not explain it. He had never felt anything like it in his life. He confirmed the contents of the discharge summary.[52]
[52]T19; see paragraphs 196-201 of this Judgment
103 The plaintiff went to the Hospital because he wanted help and he could not fix anything. He was “running around in circles like a chook with its head cut off”. He did not have any control and he thought the best place for him was hospital. He was thankful he contacted his sister, who then contacted mental health staff. At that time, it was just like a big dream and nothing was normal. He was starting to “virtually hallucinate” and see things that were not there.[53]
[53]T46
104 The plaintiff had had trouble with drugs and alcohol in the past, particularly in his late teenage years. During that time, he used Cannabis quite regularly. He also used methamphetamines. He then had a “bit of a splurge” and woke up to himself. He could not recall talking with a psychiatrist at that time.[54]
[54]T15
105 The plaintiff was trying to use Cannabis for pain relief in late 2012, into 2013, and also used crystal meth for pain. He would not say that was substance abuse; he was not going out on a binge and “being a dickhead”.[55] In 2013, he took methamphetamine for a short period because his pain became so severe. When he was first injured, he was prescribed morphine.
[55]T16
106 The plaintiff admits he has an alcohol problem. The wheels have fallen off the wagon a few times and he has tried to pull himself back into line, but he has not gone to the extent where he has made a “big muck-up” of himself again.[56]
[56]T18
107 The plaintiff continues to feel down and depressed a lot of the time because he cannot do what he used to be able to do due to pain, particularly in his back. He has dreams about falling, and wakes in a panic. He also becomes distressed when around ladders because they remind me of the incident.
108 The plaintiff feels absolutely useless. He does not feel like a father, or a real father. He cannot provide for his children the way he used to, and he is not a good role model like he used to be. He currently suffers from “depression, definitely, anxiety, stress, flashbacks and nightmares, with a falling sensation”.[57]
[57]T47
109 The plaintiff saw psychologist, Alison Crotty, three times in late 2012, again in September 2013, and in April 2014. He has not seen her much recently, but talked to her on the telephone a couple of times.[58]
[58]T15
110 The plaintiff has forgotten appointments with Ms Crotty, as his memory is “absolutely poor.”[59] He has needed to see her because he was not handling not being able to provide for his family and do things he usually did, or be a good role model to his children. He “could not cop it on the chin”.[60]
[59]T44
[60]T43
111 Over the past few months, the plaintiff has spoken to Ms Crotty two or three times to discuss the build-up of court, re-living the whole situation again. That situation has brought the plaintiff back to square one. He needed to make sure he was not going to fall back into the same trap as he did previously with his mental health. He was not prepared to do that to himself or his family.[61]
[61]T45
112 The plaintiff has found the medication he has been prescribed for his injury has “messed up his head.” Dr Wearne thinks his mental state is possibly a build-up of serotonin from his use of Tramadol for so long. The plaintiff conceded he is now probably addicted to Panadeine Forte and Tramadol now. Dr Wearne has given him advice against using too much medication.[62]
[62]T22
113 The plaintiff has tried that many different pills, it is like a cocktail, and he hates “bloody pills”. He takes the antidepressant, Mirtazapine, nightly, 30 milligrams. He last took the mood stabiliser Olanzapine quite a while ago.
114 The plaintiff is also prescribed Naprosyn, 500 milligrams, once daily, Panadeine Forte, 500 milligrams two to three times a day, and Pantoprazole. He is not taking mood stabilisers at the moment.[63]
[63]T50
115 The plaintiff was first prescribed antidepressants at the time he was also on mood stabilisers. It was when his mental health was “really starting to kick [him] in the backside”. Coming back to court, the plaintiff has to re-live the whole situation and the whole moment, and how the trauma has affected him and his children, and he cannot handle it.[64]
[64]T51
116 Following a conviction for assaulting his sister, the plaintiff was ordered to undertake 80 hours of community work which commenced on 20 January 2016. As part of that order, he made blankets for homeless people. Dr Wearne provided a certificate limiting his lifting capacity and bending and twisting.[65]
[65]T12
117 The plaintiff was also required to undergo alcohol counselling and a men’s behavioural change course. He has attended two alcohol abuse courses, as well as the behavioural change program.[66] He did the last alcohol course, perhaps last year, of his own accord.[67]
[66]T13
[67]T16
118 The plaintiff and Kylee are “really good” at the moment. Because of financial problems, they cannot actually live together permanently. She is with the girls at Lakes Entrance and he is allowed to stay there legally three nights a week. The plaintiff stays with his mother, his mother-in-law and a mate in between times in Lakes Entrance.[68]
[68]T9
119 The fact that the plaintiff had no intervention orders made against him before the incident proved that his family problems since then “are due partly due to his injury and the situation they have been put in as a family.”[69]
[69]T43
Summary of the Plaintiff’s taxation returns
Year Employer Gross 2003-2004 Not provided $1,800.08 2004-2005 Not provided Not provided 2005-2006 Not provided $803.00 2006-2007 Not provided $620.00 2007-2008 Not provided $12,598.00 2008-2009 Not provided $6,476.00 2009-2010 Adecco Industrial Pty Ltd
Adecco Australia Pty Ltd
Solsav Pty Ltd
$3,761.00
$1,103.00
$15,591.00
Total: $20,355.00
2010-2011 GM Integrated Logistics Pty Ltd
Barker Trailers Pty Ltd
$341.00
$779.00
Total: $8,131.00
2011-2012 Barker Trailers Pty Ltd
CEA Trading Unit Trust
Victorian WorkCover Authority
$416.00
$1,831.00
$11,476.00
Total: $33,950.00
2012-2013 Victorian WorkCover Authority $28,300.00 2013-2014 Victorian WorkCover Authority
Victorian WorkCover Authority
Tullaberga Fishing Pty Ltd
$212.00
$18,938.00
$2,207.00
Total: $21,357.00
Lay evidence
120 The plaintiff’s partner, Kylee Loone, swore an affidavit on 29 May 2017. She has been with the plaintiff on and off for fourteen years. They first met when she was fourteen and he was nineteen.
121 Kylee was living with the plaintiff when he was injured and has continued to basically reside with him since that time. He still spends a night or two at his mother’s place in Lakes Entrance but he is usually with her and the children.
122 Kylee has noticed significant changes in the plaintiff since the injury, quite apart from his physical impairment, which limits his ability to perform day-to-day activities where his neck and back could be placed under stress. She has noticed a significant change in his psychological wellbeing and his psyche in general.
123 In particular, since the incident, the plaintiff has become increasingly psychologically disturbed and his self-esteem is lowered and he has no confidence. His character and personality have changed. He is withdrawn, irritable and moody. He is becoming increasingly depressed, and increasingly distances himself from people and from participating in social activity where there are a number of people present. He tries hard to keep away from people and is living a relatively secluded life. He tries to avoid talking to other people and will not engage unless forced to.
124 The plaintiff is restricted around the house. She helps him with his shoes and socks because of his back injury, and organises his medications for him.
125 Whilst Kylee does most of the driving, the plaintiff has driven in the past on occasions without a licence. When they moved house several months ago, she could not reverse the trailer and had to get him to do it.
126 The plaintiff used to be enthusiastic about helping with meals and planning and cooking them. Now, he does not care, and if he commences to cook, he loses concentration very easily and gives up. His memory and concentration are very bad. He continues to wake from nightmares. His libido has reduced and is becoming worse.
127 Kylee has to constantly remind the plaintiff of appointments. Even when they go shopping, she has to remind him of the places they have to go. He forgets to do basic and simple things around the house.
128 The plaintiff is constantly stressed. Their daughter was to undergo an audition with Disney Film Productions at the end of the week and the plaintiff had withdrawn from participating in that event, which was quite an exciting one. He could not absorb it or handle it and withdrew from it. He does not go to school events where there are a number of people present. Often, he gets stressed and goes to his bedroom and spends a lot of time on his own.
129 Prior to the injury, the plaintiff was still active with sport and had trained with the cricket club in Sunbury in the summer prior to injury and was attending the golf range in Sunbury.
130 When in Darwin before moving to Sunbury, the plaintiff played social football and was very active in a range of quite rough outdoor activities such as camping, fishing, hunting and four-wheel driving. He also did boxing training in Tasmania in 2009 and, up until the said date, he was still boxing at home with various punching bags in the home gym.
131 The changes in the plaintiff have been enormous since his injury. He has been difficult to live with. From her observations, he is becoming worse with his depression, frustration, memory and concentration, and his desire to seclude himself from many activities which he would otherwise have been enjoying.
The Plaintiff’s medical evidence
Treaters
132 The plaintiff attended the Emergency Department of Northern Hospital on 16 September 2011, reporting having struck his head in the incident. He was then complaining of severe lower back pain and was in obvious distress, complaining of cervical tenderness on palpation.
133 Dr Beitner at Gap Road Medical Centre in Sunbury reported in October 2011 that the plaintiff’s recovery had been very slow and he remained in constant severe pain and required further investigations.
134 On 16 February 2012, the plaintiff attended the Bairnsdale Regional Health Service, having been brought in by ambulance, which his partner called, worried about a possible overdose.
135 The Bairnsdale report set out the presentation was on the background of a workplace injury in September 2011, from which there was still ongoing stress regarding insurance payments. The plaintiff had been feeling frustrated about the injury, not wanting to be seen as a slacker, desiring to recover, return to work and be able to support his children and partner, looking to be a good role model.
136 It was reported the plaintiff denied an overdose and had taken prescribed Valium to assist with anxiety surrounding social issues. It was noted he came across as very genuine and agreed to being brought in, in order to talk through issues and seek help.
137 The plaintiff was then provided 100 milligrams of Tramadol to assist with ongoing back pain.
138 The plaintiff attended the Emergency Department at Bairnsdale Hospital on 20 February 2012, with the presenting complaint of suicidal ideation.
139 It was noted there was a workplace accident causing chronic neck, back and pelvic pain. The plaintiff had developed depression and suicidal tendencies. In the past week he had thrown away medicines, attempted to gas himself and self-electrocute. That day, he was found by his wife preparing to hang himself.
140 The plaintiff has attended Dr Wearne at Gippsland Lakes Community Health in Lakes Entrance since May 2012.
141 In her report of April 2016, Dr Wearne diagnosed chronic lower back and neck pain dating back to the incident. She noted underlying degenerative changes were shown in subsequent imaging but did not necessarily explain the plaintiff’s experience of pain. Comorbid mental illness (depression, psychosis, intermittent substance abuse) compounded his experience of pain and disability.
142 Dr Wearne noted that the plaintiff had had intercurrent mental illness intervene periodically since she last reported in March 2013.
143 Dr Wearne believed the plaintiff would continue to have chronic back and neck pain for the long term; however, it will fluctuate in severity and impact on his life, depending on his mental state, and general coping. Given his return to most physical tasks required to maintain his home and activities of daily living, she thought the plaintiff had had as good a functional recovery as could be expected.
144 In Dr Wearne’s view, it was possible, over time, cumulative effects of degenerative osteoarthritis could increase the plaintiff’s pain, particularly if he was to undertake very physical laborious work.
145 Dr Wearne thought the plaintiff would be unlikely to undertake pre-injury work as it would most likely significantly increase his pain. She considered he had a current capacity to work suitable to his level of training. She would caution him against undertaking work that required a high degree of manual labour or a requirement to hold his body for prolonged periods in awkward positions for his spine, especially fixed flexion.
146 Dr Wearne told the plaintiff repeatedly she thought working would be a very positive and therapeutic pursuit for his health in general. She noted this was obviously influenced from time to time by his mental health issues.
147 In her March 2017 report, Dr Wearne noted that since late 2011, the plaintiff had had intermittent contact with a physiotherapist, psychologist, Ms Crotty, and an exercise physiologist to look at a hydrotherapy program.
148 The plaintiff continued to have intermittent pain, but continued to be able to perform tasks about the house such as lawn mowing, and lifting the kids which, while painful at times, was still possible.
149 The plaintiff continued to take an oral anti-inflammatory, Naprosyn, and had switched from Tramadol to Panadeine Forte daily for pain relief. Dr Wearne did not think he was currently undertaking any physical therapies for his cervical and lumbar back pain.
150 The plaintiff first saw Mr Chan, neurosurgeon, on referral from Dr Wearne in October 2012.
151 On examination, the plaintiff walked with an antalgic gait. He held his neck in a neutral position with hardly 50 degrees of motion in each direction. There was diffuse tenderness throughout the cervical spine. There was non dermatomal sensory loss of the whole right upper limb. There was diffuse tenderness in his lumbar spine with a significant restriction of movement.
152 Mr Chan reported the plaintiff had persistent mechanical axial neck and back pain after the incident. He thought there was no indication, however, for neurosurgical intervention based on the clinical and radiological findings, and referred the plaintiff to Dr Graaff, a pain and rehabilitation physician, for optimisation of pain management and a program for functional recovery.
153 Mr Chan considered the plaintiff had a current capacity for modified or alternative duties, and further modification of the restrictions would apply according to his response to a pain management program.
154 The plaintiff initially had physiotherapy treatment from Melli Murcott from October 2011 until February 2012.
155 In her report of 27 March 2013, Ms Murcott advised she was not sure of the plaintiff’s prognosis, but at the time she was seeing him it was not good. He had widespread injuries that were not being investigated thoroughly and fast enough. She thought that could promote a Chronic Pain Syndrome, which the plaintiff was showing tendencies for initially, with a very poor range of movement in the lumbar spine and shoulder, which did not progress well with the limited manual therapy she gave him.
156 From June 2012, the plaintiff had physiotherapy with Nicole Kee in Lakes Entrance, for nine sessions. The plaintiff ceased this treatment in December 2012 as he had been self-managing at home.
157 Ms Kee reported that the plaintiff’s overall diagnosis had been one of chronic pain. Although his symptoms may improve somewhat, she did not believe they would ever completely go. They were not getting significantly better or worse over the last six months. She thought it would be of great benefit for the plaintiff to attend a pain management program and to be reviewed by a neurosurgeon and pain specialist for further procedures.
158 Ms Kee thought the plaintiff had no capacity to do his old job, but had some capacity for other work, taking into account his ongoing symptoms and limited function. She noted he had been considering whether he could manage working as a truck driver or some other machine operator.
159 Alison Crotty, psychologist in Lakes Entrance, last reported in March 2017, having first seen the plaintiff in September 2013.
160 Ms Crotty reported that the plaintiff recently attended for eight sessions between August 2015 and August 2016. His scores on testing during that period were consistent with a diagnosis with Post-Traumatic Stress Disorder (“PTSD”). During that time, his scores remained relatively stable overall, demonstrating a high level of ongoing and significantly intrusive distress. She thought further ongoing treatment was likely to be necessary, with the aim of maintaining the highest possible level of functioning in the presence of the plaintiff’s pain and psychiatric symptoms.
161 Should the plaintiff’s physical condition deteriorate, Ms Crotty thought, it was likely his psychiatric symptoms would also become more severe.
162 Ms Crotty considered the plaintiff has no capacity for his pre-injury duties. She noted he had repeatedly stated he would like to return to work. He also reported high levels of debilitating chronic pain, poor concentration, fatigue and other cognitive difficulties. In her view, it would appear unlikely that he would be able to return to work unless intensely supported in a position that was fully appropriate for his physical and mental health.
Investigations
163 CT scans of the plaintiff’s cervical spine in September 2011 did not reveal any evidence of acute cervical spine fracture or acute abnormality.
164 The plaintiff had an MRI scan of his lumbar spine on 10 November 2011.
165 It was reported there was degenerative disc changes in the lower L4 lumbar discs, and facet joint disease in the lower two lumbar levels, contacting without definite impingement of the L5 and S1 nerve roots bilaterally at the lateral recesses.
166 There was an MRI scan of the cervical spine on 15 November 2011.
167 It was reported there was mild multilevel chronic degenerative disc disease. Mild disc bulges were seen at C3-4, C4-5 and C6-7, without evidence of significant central canal stenosis. There was mild bilateral foraminal stenoses at C3-4 and C4-5 secondary to uncovertebral osteophytes.
Medico-legal evidence
168 Dr David Middleton, occupational health and rehabilitation consultant, examined the plaintiff in February 2017.
169 The plaintiff then described the main pain being in his lower back and neck. There was a constant aching in the lumbar spine, exacerbated by twisting and bending, causing sharp pains radiating down the right leg.
170 The plaintiff was unable to rotate the head and neck without causing pain down the right arm and suffering headaches, which were throbbing in nature. The right shoulder developed a burning pain when lifting even moderate weights, and was weak. The right knee squeaks and grinds if he did too much. His hip also grinds and was associated with a numb backside.
171 Mentally, the plaintiff described “feeling like shit” and used adjectives such as “useless”, “depressed” and “anxious”, and stressed suffering from nightmares and flashbacks, phobias about ladders, describing the sound of trucks’ airbrakes sending him off and reminding him of the sandblaster.
172 The plaintiff reported a sitting tolerance of ten to twenty minutes, standing still for no more than five minutes, generally moving about and changing weights from leg to leg. Walking varied from 500 to 800 metres, depending on symptoms. Lifting was a maximum of 5 kilograms using the left arm, stating he would drop this sort of weight in the right. He had difficulty doing head checks when driving, and his endurance varied from five minutes on a bad day, to fifteen minutes on his best days.
173 Dr Middleton thought the plaintiff presented as a pleasant, straightforward person, whom he felt answered all questions honestly, to the best of his ability, and exhibited no functional behaviour.
174 Dr Middleton considered, as a result of the incident, the plaintiff aggravated previously asymptomatic age-related degenerative disease of his cervical and lumbar spine, rendering both spines now symptomatic with the onset of lumbar instability and ongoing discogenic pain down the right leg, with a significant neuropathic component to that pain.
175 Dr Middleton also thought the plaintiff continued to suffer with pain in the back of his neck, causing psychogenic vascular type headaches and likely discogenic pain extending down his right arm, both lumbar and cervical spine symptoms being aggravated by physical activity.
176 In Dr Middleton’s view, the plaintiff also suffered with a right rotator cuff tendonitis with restricted movement. This resulted in a reduction in right-hand grip strength. There were also persistent knee pains.
177 Dr Middleton thought the plaintiff’s main pain related to his spine and was located in the lower back and neck.
178 Dr Middleton considered the plaintiff required funding for a multidisciplinary pain management program for at least twelve, and likely twenty-four months. Psychologically and psychiatrically, he needed the ongoing support of both a psychologist, and if recommended by his general practitioner, treatment and management by a psychiatrist. Subject to an improvement in the plaintiff’s physical and psychological conditions, there would need to be consideration for him to undertake vocational re-education.
179 Addressing, exclusively, the neck, back and right shoulder and right knee, Dr Middleton thought the plaintiff was precluded from repetitive pushing or pulling, or lifting, repetitive bending or repetitive or prolonged use of the neck and back, use of steps or ladders. He is restricted in bending, lifting, twisting, stooping, pushing, pulling or lifting, overhead activity, prolonged walking, sitting or standing, walking up inclines or down declines, such that these activities need to be performed in a self-paced manner, respecting the physical limitation.
180 Taking into account these relevant matters, Dr Middleton thought the plaintiff no longer has the safety, skill or capacity to undertake pre-injury duties, full or part time.
181 Dr Middleton thought the plaintiff is now limited to sedentary non-manual duties to be performed in a self-paced manner with provision of work breaks and appropriate lifting limits.
182 Having been out of the workforce for over three years, any consideration about returning to work would need to be on a graduated basis, commencing two to three hours in any one day, two to three non-consecutive days per week, carefully monitored by the plaintiff’s general practitioner.
183 Dr Middleton concluded the plaintiff is permanently incapacitated for any type of work which has a significant physical manual component. In theory, he has some capacity to perform sedentary work; however, taking into account his incapacity, age, education, place of residence, work experience, training and skills, as well as lack of occupational rehabilitation services, Dr Middleton considered the plaintiff’s capacity to procure and maintain such employment would be negligible and that he had no current work capacity as defined by the Act for the foreseeable future.
184 Dr Serry, psychiatrist, examined the plaintiff in May 2017.
185 Dr Serry noted that since the incident, the plaintiff had struggled with chronic and widespread pain, associated physical limitations. He concluded the plaintiff would never return to anything approaching his full premorbid level of functioning.
186 From a psychiatric view, Dr Serry noted the plaintiff had experienced fluctuating depressive symptomatology, ongoing anxiety, considerable frustration and further still, he had adopted at different times, suboptimal coping strategies. In the context of methamphetamine use in about 2013, the plaintiff appeared to have become rather paranoid and to have experienced auditory hallucinations.
187 Dr Serry thought the suboptimal coping strategies had largely abated, but the plaintiff had been left with fluctuating depression, apprehension, frustration and traumatisation symptomatology regarding the incident itself.
188 Dr Serry noted the plaintiff’s background was rather prejudicial, with a chaotic upbringing, with exposure to violence and substance abuse, losing his father at eleven, and his mother having a history of not insignificant substance abuse, anxiety and depression.
189 Diagnostically, Dr Serry thought the plaintiff presented with symptoms and features of a Chronic Adjustment Disorder with Anxious and Depressed Mood with previous disturbances of conduct, with ongoing symptoms and features of traumatisation.
190 Given the persistent nature of both physical and psychiatric symptomatology and particularly the complexity of the plaintiff’s presentation, Dr Serry thought he should be under the care of a treating psychiatrist.
191 In Dr Serry’s view, the plaintiff would be unable to perform pre-injury duties, given the development of a quite clear fear of being on ladders. Taking into account s5 factors, Dr Serry would be very dubious about the plaintiff’s capacity to undertake any form of suitable employment on a permanent basis. As a result of his psychiatric condition, he was likely to be restricted in relation to a variety of social, domestic and recreational activities to a considerable extent permanently.
192 Dr Serry thought the prognosis was guarded, noting there was a not insignificant element of premorbid vulnerability and an ongoing nexus between the physical and psychiatric aspects of the plaintiff’s presentation.
The Plaintiff’s vocational evidence
193 Paul Hartley from Vocational Directions provided a vocational assessment report of April 2017.
194 The plaintiff described to Mr Hartley the following tolerances:
· sitting for 30 minutes, but not repetitively
· altering his position every 15 minutes (on doctor’s suggestion)
· nil static standing tolerance
· having to keep moving
· dynamic standing of 10 to 15 minutes
· walking 15 to 30 minutes and he needed to stop to take a break.
195 Mr Hartley thought the plaintiff should avoid pain, bending, stooping, twisting, squatting, kneeling, crawling, crouching, where possible, as it increased his pain. His lifting and carrying capacity was limited to 5 kilograms from waist height and not repetitively. He had weakness and poor right dominant hand grip and dropped things, and had difficulty using the right hand with fine motor activities. He was unable to sit long enough at a work bench or desk. He had problems with his short-term memory, much worse than previously. He was unable to concentrate, remain focused or stay on track, and was easily distracted.
196 Mr Hartley concluded the plaintiff did not have the capacity for any of the suggested jobs by Advanced Personnel Management in 2012 and 2014 of courier, taxi driver, sales representative, community worker, delivery driver, mobile plant operator, receptionist, motor vehicle parts interpreter and store person.
The Defendants’ medical evidence
197 A discharge summary from Latrobe Regional Hospital dated 24 February 2014 set out the plaintiff was admitted to the Hospital for mental health issues on 10 February 2014, having previously attended at Bairnsdale Hospital.
198 It was noted the plaintiff presented to Emergency, encouraged to do so by Kylee, to seek help for problems. She reported his mental state had worried her for about ten months and she suggested he seek help. He had stopped taking Tramal and he thought she was having an affair. The plaintiff was also preoccupied with paranoid ideas that everything is a game and that people were conspiring against him. Reference was made to previous GP notes that the plaintiff had often behaved in a chaotic manner with features of paranoia.
199 It was also noted that the plaintiff admitted to regular use of Cannabis recently to one gram a day, and frequent alcohol, up to half a slab a day, and occasional Ice use.
200 It was reported previous general practitioner notes described the plaintiff had often behaved in a chaotic manner with features of paranoia, believing people were controlling his life, believing his partner was being unfaithful, features of a Mood Disorder with elevated mood, grandiose ideas and racing thoughts, as well as a previous history of a Diazepam overdose in 2012.
201 On discharge, the plaintiff was given Olanzapine and Paliperidone.
202 On 19 May 2016, Dr Wearne wrote to the Department of Justice in relation to the plaintiff’s work restrictions for the purposes of his court ordered community work.
203 Dr Wearne advised that she had envisaged the plaintiff’s restrictions should include no lifting over 15 kilograms, no periods of extended sitting or standing over thirty minutes at a time, no period of standing with his lower back in a flexed position and no repetitive squatting without support to help himself get up.
Medico-legal evidence
204 Dr Dominic Yong, occupational physician, examined the plaintiff in November 2011.
205 The plaintiff walked with a walking stick in his left hand and wearing a neck brace. He complained of reduced sensation over the whole of the right leg. There was widespread tenderness of the neck and reduced sensation over the whole of the right arm.
206 The plaintiff then reported significant levels of back, neck, right upper and lower limb pain. Dr Yong thought there were no clinical features suggesting a radiculopathy and noted that investigations had excluded fractures and lumbar spine neurocompressive lesions. He thought the plaintiff had a widespread pain condition.
207 Dr Yong then thought the plaintiff needed to participate in a multidisciplinary pain management program, at the completion of which he should develop a capacity for work.
208 Dr Timothy Entwisle, psychiatrist, examined the plaintiff in February 2012. No medical reports were provided to him apart from that of the plaintiff’s general practitioner.
209 The plaintiff was then off work and had not been employed since the incident. He advised that, prior to his injury, he was in excellent health and was otherwise well.
210 The plaintiff told Dr Entwisle that when he was younger, he was diagnosed with partial Schizophrenia and Bipolar Disorder. He was taking various substances at that time, and there were significant issues at home.
211 In terms of past history, Dr Entwisle simply noted the plaintiff was previously diagnosed with a psychiatric condition and it was the plaintiff’s account that his difficulties at that time related to lack of care and supervision and his dysfunctional upbringing.
212 Dr Entwisle thought the plaintiff did not present with psychiatric symptoms. He noted the plaintiff had a significant past history and that there were indications he was severely affected by his parents’ various difficulties. The plaintiff lived a homeless existence and drifted into substance abuse. Dr Entwisle thought the plaintiff was simply stressed and troubled by lack of his work.
213 Mr Daryl Nye, neurosurgeon, examined the plaintiff in August 2012.
214 The plaintiff attended using a walking stick in his right hand. He reported continuing lower back pain and sharp neck pain extending down his spine. There were also problems with elevation of the right arm, and right knee pain.
215 Mr Nye thought pain behaviour was evident during the interview. He considered the plaintiff suffered a fall with associated possible soft tissue injury and there was no indication of any serious spinal injury. He thought the plaintiff’s presentation strongly suggested development of a Pain Syndrome without organic explanation. He considered involvement of a psychiatrist would be justified.
216 Mr Nye could not state with certainty the plaintiff’s injury had resolved. However, he had not identified any organic spinal condition which would result in the reported symptoms. He thought the plaintiff did not then have the capacity to participate in New Employer Services. He considered the plaintiff to have a capacity to resume pre-injury duties on a full-time basis if they were available.
217 Professor Vernon Marshall, general surgeon, examined the plaintiff in October 2012.
218 The plaintiff walked with a significant limp affecting his right leg advised he was no longer using a walking stick. His gait was significantly antalgic affecting the right leg. All lumbar movements were done slowly and with perceived discomfort. There was marked restriction of the cervical spine which he moved slowly.
219 Professor Marshall diagnosed work strain following the incident, multiple persisting symptoms affecting the neck, right shoulder, lower back and right knee, and minor persisting organic injuries.
220 Professor Marshall accepted the plaintiff sustained a work injury, the effects of which continued to contribute to his condition and symptoms. He was not able to exclude conscious or unconscious exaggeration of symptoms which appeared somewhat excessive in relation to the organic injury evidence.
221 Professor Marshall thought the vocational assessment options of June 2012 were appropriate – courier, taxi driver, sales representative and community worker – with restrictions of overhead use of the right arm and restrictions of lifting to 5 kilograms, and avoidance of prolonged standing or squatting.
222 In August 2013, Associate Professor Peter Doherty, psychiatrist, examined the plaintiff.
223 Associate Professor Doherty then noted the plaintiff had longstanding psychological and behavioural problems and there were significant personality problems. He thought those made the plaintiff vulnerable to mood symptoms and having difficulty dealing on an interpersonal level.
224 Consideration was given to whether or not the plaintiff had a chronic pain disorder. Associate Professor Doherty noted the plaintiff had an array of pain related behaviours. He stood up during the course of the interview. He complained bitterly about pain symptoms. He however was not convincing in his presentation of pain though he is taking a significant amount of synthetic narcotic analgesic medication. The plaintiff presented as evasive about his alcohol and drug use.
225 On presentation, Associate Professor Doherty thought the plaintiff did not have a history and clinical presentation typical of an Adjustment Disorder with Depressed Mood.
226 Associate Professor Doherty thought the disorder of personality had been present prior to the injury, and was pre-existing in constitution. He considered there was no psychiatric condition consequential to the physical injury and no psychiatric contraindication to the plaintiff returning to his pre-injury hours and duties.
227 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff in July 2013 in relation to his weekly payment entitlements and assistance regarding a vocational assessment. This report and examination focused on the plaintiff’s limb problems, not spine.
228 Mr Battlay concluded there was a significant elaboration of clinical findings and those are not really able to be interpreted as showing an ongoing work-related injury. However, he thought there was evidence of a minor sprain of the ACL and MCL, which might represent an incompletely resolved soft tissue injury to the knee. There was no clinical diagnosis in relation to the right shoulder because of incomplete cooperation. He thought MRI findings on the shoulder suggested a degenerative rather than traumatic aetiology.
229 Initially when returning to work, a graduated return over a period of three months would be suggested, but Mr Battlay then felt sure the plaintiff could perform his full pre-injury duties. He could work without overhead reaching and squatting or kneeling at present, and within three months, regain restricted duties.
230 The plaintiff was examined by psychiatrist, Dr Michael Duke, in November 2013.
231 From a psychiatric point of view, Dr Duke thought the plaintiff actually then qualified for an Adjustment Disorder of a secondary nature with mixed disorder of emotions and conduct. However, he did not think that was permanent, noting Dr Entwisle, the previous year, and the Medical Panel in December 2012, and Associate Professor Doherty in 2013, found no psychiatric diagnosis.
232 Dr Duke thought the current diagnosis was due to the plaintiff’s escalating difficulties since July 2013, and should be manageable.
233 Clive Jones, orthopaedic surgeon, examined the plaintiff in January 2014.
234 The plaintiff’s symptoms were right shoulder pan and right ankle pain . The neck were said to be painful and stiff.
235 On examination, both the neck and back were held artificially stiff with complaints of generalised muscular pain in both areas.
236 Mr Jones thought the only diagnosis relevant to the event appeared to be a mild tendonitis of the right shoulder, which he thought was likely to resolve given time.
237 Dr Richard Prytula, psychiatrist, examined the plaintiff in July 2014.
238 On mental status examination, the plaintiff’s mood was within normal limits as was his affect . His speech was normal. His thought contained ideas of boredom and wanting to get back to some form of work. His cognition appeared intact. His perceptions showed no indication of abnormalities such as hallucinations or illusions. His insight into his condition appeared to be partial.
239 Dr Prytula thought the plaintiff showed no symptoms of psychiatric illness. He noted it appeared clear the plaintiff had a disturbed childhood, with obvious disturbance of personality and behaviour at times, and some criminal behaviour, together with drug abuse.
240 Dr Prytula thought the plaintiff then had a full work capacity from a psychiatric point of view. He thought his prognosis was relatively guarded, as the plaintiff had shown some propensity to decompensate into suicidal behaviour at times.
241 Dr Michael Bloom, occupational and environmental physician, examined the plaintiff in July 2016.
242 The plaintiff then complained of constant lower back pain, which was an ache with occasional burning and sharp pains, the intensity of which was generally uncomfortable, and varied between 4 to 6 out of 10. He also experienced frequent swelling in his lower back. He had shooting symptoms into the front of his thigh. His pelvis was grinding and pops in and out of place.
243 The plaintiff also said he had pain and stiffness in his neck and had difficulty looking up and down. Movement of the neck resulted in pain running down his spine to the base of his spine, and to the shoulder blade. He rated the pain as between 4 to 6 out of 10. He also complained of frequent headaches, swelling, and pain in his right knee. He said he remained depressed and anxious, and that he was as good as he was going to get.
244 The plaintiff reported a sitting and standing tolerance of an hour. Prolonged walking induced swelling in his lower back and right knee. He struggled with bending, and twisting was out of the question. He could lift and carry up to 10 kilograms.
245 The plaintiff advised he smoked fifteen cigarettes a day. He said he was an alcoholic, but he had been dry for the past two weeks and was currently being counselled.
246 On examination, Dr Bloom thought the plaintiff’s clinical presentation was typically consistent with a Chronic Pain Syndrome, implying his perception of pain and disability is disproportional and cannot be explained in terms of the original soft tissue injury.
247 Dr Bloom described the clinical examination as notable for non-organic behavioural signs and thought there was little doubt the plaintiff’s inability to recover and rehabilitate related predominantly to adverse psychosocial factors, including the loss of job opportunity.
248 Dr Bloom thought the plaintiff’s educational and employment history suggested he lacked transferable skills. He considered the plaintiff’s interpersonal skills average, possibly adequate for types of work in service industries that required reasonable levels of interpersonal skills.
249 Taking these matters and the lack of computer literacy into account, Dr Bloom gathered the plaintiff had a considerable paucity of transferable skills and would struggle to work in any office environment.
250 Taking into account a soft tissue injury four-and-a-half years ago without any evidence of serious or permanent physical injury, and disregarding any adverse psychological responses, Dr Bloom believed the plaintiff could, and should, function and work within the following restrictions:
· avoiding prolonged static postures
· working above shoulder height
· limiting repetitive manual handling of loads of 10 to 12 kilograms between mid-thigh and chest height and with elbows relatively close to the side; and
· avoiding repetitive or frequent bending or twisting.
251 With those conditions and constraints, Dr Bloom thought there would be no physical contraindication to full-time work, and a graduated return to work would be appropriate. He suggested the plaintiff commence suitable duties on a part-time basis, working three hours, four days a week, with a graduated increase in hours on suitable duties to full time over three months.
252 Dr Bloom thought the primary barriers to a return to work were the plaintiff’s loss of job opportunity, the fact he lives in a remote area, and a plethora of adverse psychosocial factors.
253 From a purely physical perspective, Dr Bloom thought the plaintiff had a safe capacity to undertake semi-sedentary and relatively light work, and if he were to sustain that, in time, he could develop the confidence to increase to work of at least moderately physical demand.
254 Dr Bloom considered the roles of despatch clerk, car park attendant, light process work and traffic management were suitable, but due to the plaintiff’s apparent lack of transferable skills, identifying other suitable employment options would require a thorough vocational assessment.
255 Dr Bloom noted the plaintiff’s presentation was notable for non-organic behavioural signs. That implied the evolution of a chronic pain state that related to adverse psychosocial motivational factors and was not at all surprising, given the plaintiff’s complex psychosocial background and history. Notwithstanding these factors from a purely physical perspective, Dr Bloom thought the plaintiff not only had a work capacity, but would benefit from suitable work, as Dr Wearne agreed.
256 On re-examination in April 2017, the plaintiff complained of feeling very depressed and anxious, suffering panic attacks, and lacking motivation.
257 The plaintiff complained of constant pain across his lower back 4 to 7 out of 10 or 8 out of 10. He had right shoulder pain and problems with movement, pain and stiffness in the neck and occasional swelling in the right knee.
258 Dr Bloom confirmed his earlier views as to the plaintiff’s functional and work capacity, and that the conditions and constraints within the plaintiff should and could work, had not changed from previous examination.
259 Dr Bloom also commented further on the jobs suggested in July 2016 and April 2017. He noted the primary condition under which the plaintiff should work was to avoid prolonged static posture. He thought the traffic controller and meter reader jobs were suitable, given they were physically light. He believed that if the plaintiff were offered the opportunity to undertake these jobs if he was motivated to do so, he would have the safe capacity to sustain such work without risk of further injury or aggravation.
260 Mr Rodney Simm, orthopaedic surgeon, first examined the plaintiff in July 2016 and re-examined him in March this year.
261 On the most recent examination, the plaintiff stood for the entire interview, leaning on the back of a chair. He had a strong symptom focus. He seemed to be in pain throughout the interview and displayed a strong pain focus when examined. He walked with a marked right sided limp and struggled to walk on his toes and heels.
262 Mr Simm thought the plaintiff presented with clinical features of a deteriorating Chronic Pain Syndrome. There were initially soft tissue injuries which were subsequently complicated by a deteriorating and somewhat overwhelming Chronic Pain Syndrome.
263 Mr Simm noted the plaintiff again presented as a genuine, co-operative person who seemed severely disabled by his chronic adverse pain response. He thought the plaintiff’s condition now fell largely outside the scope of routine orthopaedics and was in the field of chronic pain and psychiatry. He did not comment on the plaintiff’s work capacity.
264 Dr Edmond Van Ammers, psychiatrist, examined the plaintiff initially in July 2016 and, more recently, in March 2017. On re-examination, he noted very little had changed since the initial examination.
265 The plaintiff walked with a noticeable limp and for much of the assessment stood up although settling in a chair eventually. Perhaps the most significant aspect to the presentation was his emphasis on physical symptoms and impairment. When he was questioned as to what he could do, the plaintiff would give a long list of what he could not do. His answers to questions about work in the future contrasted somewhat to his statements that he wanted to get better and felt shameful about his lack of abilities.
266 When the plaintiff spoke of nightmares, flashbacks and response to the ladder, the distress observed was not concordant with the distress expressed. He readily agreed to the presence of symptoms when they were mentioned by Dr Van Ammers.
267 On examination, there were no abnormalities of speech and thought. It was not thought the plaintiff’s underlying mood was clinically depressed. Whilst the plaintiff was certainly tense, there were no observable symptoms of anxiety. Cognitive functioning appeared adequate. There was no indication of psychotic symptoms or thinking.
268 Dr Van Ammers had considerable doubt whether the plaintiff had a PTSD. He did not think he was actively malingering.
269 Purely from a psychiatric perspective, Dr Van Ammers thought it fair, so as to give the plaintiff some leeway, to conclude he does not have a capacity for his pre-injury job. He thought the plaintiff’s incapacity for work was primarily determined by his focus on the negatives and the belief he cannot. From a practical perspective, there are a range of work options the plaintiff could do which were compatible with the nature of his psychological injuries.
Vocational evidence
270 Janette Ash, occupational therapist and injury management consultant, provided a Suitable Employment Report on behalf of Recovre in March 2017.
271 Ms Ash carried out worksite assessments of the roles of meter reader ($23.46 per hour) and traffic controller ($25.64 per hour), both positions she considered suitable for the plaintiff.
Overview – the spine/clause (a) application
272It is not disputed the plaintiff suffered a compensable injury to his neck and back in the incident.
273The defendants accepted liability for the payment of weekly payments, medical expenses and an impairment benefit in relation to the right upper and lower limbs, neck, back and psychiatric injury.
Credit
274As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[70]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[70](2010) 31 VR 1 at paragraph [12]
275 Counsel for the plaintiff submitted that very little inroads were made into the plaintiff’s case at all, despite the competent cross-examination. It was submitted the plaintiff presented in a genuine manner and did not attempt to exaggerate his position or mislead the Court in any shape or form.[71]
[71]T81
276 Whilst much was said about the film, counsel for the plaintiff stressed there were 74.5 hours of surveillance over eighteen days, which resulted in about an hour and 20 minutes of film, about an hour and 13 minutes of which was on 15 December 2016 in the Woolworths carpark at Lakes Entrance.
277 In that film, the plaintiff was shown coming and going from the vehicle, not static for an hour working on it to get it unlocked. When one looked closely, it was the plaintiff’s wife who was doing the “hard yakka”.[72]
[72]T75
278 Whilst the plaintiff might be shown standing around at the workshop in the beginning of the film, it was submitted he was not standing in the one position for more than a couple of seconds and was on the move.[73]
[73]T76
279 If it was accepted the plaintiff’s spinal pain was organically based, counsel for the defendants submitted the film was inconsistent with the plaintiff’s level of complaint, and that he had exaggerated to doctors his degree of incapacity, presenting with a noticeable limp on various examinations, whereas on the film, if there was a limp, it was not noticeable and there was no antalgic gait.[74]
[74]T70
280 Further, as to credit, counsel for the defendants relied on the plaintiff’s affidavit evidence that he had disposed of his motorbike because his back injury made riding difficult. However he had subsequently bought Harley Davidson with some of his disability payout and rode it unlicensed, stopping because his lawyers told him to.[75]
[75]T72
281 In my view, there is some merit in these submissions on behalf of the defendants. In my view, the film showed the plaintiff standing around, largely in the one spot for about half an hour- a greater standing tolerance than he has sometimes acknowledged. At no time in any of the film was the plaintiff shown limping. He was shown bending and twisting when assisting with the car “break in.”
282 Overall, whilst of limited duration given the amount of surveillance undertaken, the film did show a somewhat greater freedom of movement and mobility than the plaintiff has consistently described to doctors and in his affidavits. The plaintiff’s evidence about his motor bike use was also somewhat unsatisfactory.
Is any spinal impairment organically based?
283 Counsel for the plaintiff submitted there had been a dramatic change in the plaintiff’s life and quality of life since the incident, “right across the board: social, domestic, recreational, marital, family and employment.” It was disputed that there was a continuum of the previous pattern of social and work upheaval, and it was submitted that the plaintiff’s life had spiralled out of control and downwards since the incident.[76]
[76]T74
284 Whilst counsel for the defendants conceded the plaintiff suffered a soft tissue injury to his spine in the incident, it was submitted that injury had been quickly overwhelmed by a psychiatric response, and that the application should fail as the plaintiff had not satisfied the test set out by the Court in Meadows v Lichmore.[77]
[77]T58, [2013] VSCA 201 at paragraphs [21]-[22]
285In that case, Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
286 Counsel for the plaintiff submitted MRI scans of the cervical and lumbar spines show significant findings of pathology at both levels for a plaintiff who was only thirty-three at the time of the incident.[78]
[78]T82
287 Whilst I accept that the plaintiff suffered a soft tissue injury to his spine in the incident, his presentation in more recent times cannot, and has not, been explained by the preponderance of medical examiners on a physical, organic basis.[79]
[79]T58
288 As early as November 2011, medico-legal examiner, Dr Yong, found a widespread pain condition. In May the following year, treater, Mr Chan’s, examination findings were largely of a non-organic nature, and he recommended the plaintiff be referred for pain management.
289 Ms Murcott, physiotherapist, who last saw the plaintiff at the end of 2012, noted that the plaintiff was then showing tendencies for a Chronic Pain Syndrome with a very poor range of movement. Ms Kee, who soon thereafter took over the plaintiff’s treatment, diagnosed chronic pain and recommended a pain management program.
290 Professor Marshall diagnosed a minor strain on examination in October 2012.
291 Mr Nye, neurosurgeon, in August 2013, thought the plaintiff’s presentation strongly suggested development of a Pain Syndrome without an organic explanation.[80]
[80]T64
292 Whilst acknowledging the presence of underlying degenerative changes in the imaging, Dr Wearne, in her most recent report of April 2017, reported that those findings do not necessarily explain the plaintiff’s experience of pain. In her view, comorbid illnesses (depression, psychosis, intermittent substance abuse) compound his experience of pain and disability.
293 Whilst counsel for the plaintiff relied to some extent on Mr Simm’s opinion and his comments that the plaintiff was a genuine person,[81] when he most recently saw the plaintiff in March 2017, Mr Simm thought he presented with the clinical features of a deteriorating Pain Syndrome and that his condition now falls largely outside the scope of orthopaedics and is in the fields of chronic pain and psychiatry.[82]
[81]T96
[82]T66
294 On re-examination in April 2017, Dr Bloom, occupational physician, found the plaintiff’s non-organic signs had become more florid, if anything, since his earlier examination. He considered the plaintiff’s perception of his pain and disability was inexplicable in terms of the original soft tissue injury that had resolved.
295 Counsel for the plaintiff submitted Dr Middleton provided a comprehensive and very detailed review of the plaintiff’s history and medical material, and presented a detailed opinion as to the unsuitability of the various jobs suggested.[83]
[83]T85
296 Dr Middleton is the only practitioner who has not commented on non-organic factors in the plaintiff’s current presentation. On examination in March 2017, he found ongoing discogenic pain down the right leg, with a significant neuropathic component to that pain. However, he did not explain the physical basis of the widespread nature of the plaintiff’s symptoms and the continuation thereof nearly six years after what most practitioners agree was a soft tissue injury. His only suggestion for further treatment was a multidisciplinary pain management program.
297 Whilst the plaintiff has deposed to constant fluctuating back pain, with severe pain at least once daily, right leg pain on and off and fluctuating pain in his neck, there is no current physical explanation for these complaints or the many other consequences in his work and daily life he has deposed to.
298 It seems there have been no investigations of the plaintiff’s spine undertaken since late 2011 and there has been no specialist referral to an orthopaedic or other surgeon.
299 Taking into account all the evidence, I am not satisfied that any present spinal impairment has a substantial organic basis. Further, the plaintiff cannot take the next step and ‘disentangle’. He is unable to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
300 Accordingly, the application pursuant to clause (a) is dismissed.
Psychiatric impairment
301 Whilst the plaintiff had psychiatric issues prior to the incident, in my view, this was not an aggravation case where the principles in Petkovski v Galletti[84] apply.[85]
[84] Supra
[85]T65
302 I accept that psychiatrically, the plaintiff appeared to be coping quite well with life pre incident. He had just come from Darwin, where he was able to engage in a range of sporting and domestic activities, as well as some work.[86]
[86]T5
303 Having found the plaintiff has a non-organically based Pain Disorder, for his application to succeed pursuant to clause (c), he must establish the consequences of that disorder are “severe”.[87]
[87]Veljanovska v Socobell Oem Pty Ltd (supra); Church v Echuca Regional Health (2008) 20 VR 566
304 Counsel for the defendants submitted the consequences of any Chronic Pain Disorder were not “severe”. To satisfy the definition, “ideally there would be evidence from a treating psychiatrist, but at least from a plethora of medico-legal psychiatrists to say there was a severe psychiatric condition.”[88]
[88]T61
305 Counsel for the plaintiff submitted the plaintiff’s psychiatric impairment was severe, relying on the involuntary inpatient treatment in February 2014, as well as the ongoing treatment with anti-depressant medication and psychological treatment over a period of at least four years.[89]
[89]T91
306 However, whilst continuing under Dr Wearne’s care, the plaintiff has never been referred for psychiatric treatment. It can be inferred therefore that she does not believe his condition has properly called for such treatment. He appears to have been last seen by a psychiatrist when an inpatient at Latrobe Regional Hospital in February 2014 during a psychotic episode. There has been no subsequent recurrence of this type of problem.
307 I note however that the medico legal examiners relied upon by the plaintiff suggested further treatment. Dr Serry thought the plaintiff should be under the care of a psychiatrist and Dr Middleton suggested a similar course if recommended by the plaintiff’s psychologist or general practitioner.
308 It appears from the clinical note from Dr Wearne’s practise dated 9 May this year that the plaintiff continues to be prescribed 30 milligrams of the antidepressant Mortazapine.
309 Dr Wearne has not commented however on this medication in her two most recent reports or explained precisely for what condition it is prescribed or for how long anti-depressants will continue to be prescribed. The mood stabiliser, Olanzapine has not been prescribed for some time.
310 Psychologist, Ms Crotty, is the only current mental health treater.[90] Whilst she has spoken to the plaintiff on the telephone in recent times, her last report detailed treatment to August 2016. She is the only practitioner who has diagnosed PTSD.[91]
[90]T59
[91]T60
311 As counsel for the defendants submitted, the involuntary admission in 2014 was for a psychotic type condition of short duration, when the plaintiff had been taking illicit substances.[92] His condition at that time was diagnosed as a drug induced psychosis. There have been no recurrences of that condition since.[93]
[92]T61
[93]T66
312 Whilst the discharge summary relating to that attendance set out that Kylee first noticed changes in the plaintiff’s behaviour in about April 2013 when he stopped taking Tramal, most of that summary relates to the plaintiff’s belief Kylee was having an affair and his paranoia in relation thereto and other psychotic symptoms.
Psychiatric evidence
313 Medico-legal psychiatrics who have examined the plaintiff have not diagnosed a Chronic Pain Disorder and generally, their psychiatric diagnoses, if any, have been to the lower end of the range, as counsel for the defendants submitted.
314 Dr Entwisle found there was no psychiatric condition when he examined the plaintiff on 13 February 2012. I note however, there was a psychiatric attendance at Bairnsdale Hospital on 16 February 2012 and the plaintiff presented again with suicidal ideation four days later.
315 Following examination in July 2013, Dr Doherty thought the plaintiff had no psychiatric disorder and had an underlying Personality Disorder which was constitutional – a diagnosis counsel for the defendants submitted may have some validity.[94]
[94]T65
316 In late 2013, Dr Duke diagnosed an Adjustment Disorder of a temporary nature which, on a proper reading, it was submitted by counsel for the defendants, accepted probably social factors were impacting the plaintiff at that time.[95]
[95]T66
317 In mid 2014, Dr Prytula thought there was no psychiatric condition.
318 Diagnostically, Dr Serry thought the plaintiff presented in May this year with symptoms and features of a Chronic Adjustment Disorder with Anxious and Depressed Mood with previous disturbances of conduct and with ongoing features of traumatisation.
319 Counsel for the plaintiff submitted that whilst Dr Serry did not specifically diagnose a Chronic Pain Syndrome, his description of the plaintiff’s condition could be described in those terms.[96]
[96]T86
320 On that examination, Dr Serry did not obtain a history of the involuntary admission. He also noted that the plaintiff’s suboptimal coping strategies had largely abated. In these circumstances, counsel for the defendants submitted his diagnosis of an Adjustment Disorder did not warrant a description of “severe”.[97]
[97]T60
321 Dr Van Ammers, a psychiatrist, with a specialty in PTSD, who has seen the plaintiff twice, most recently in March 2017, had considerable doubt the plaintiff was suffering from that condition and did not provide any other psychiatric diagnosis.
322 Counsel for the plaintiff submitted however that Dr Van Ammers raised the prospect that there well could be PTSD, with the plaintiff suffering, with nightmares, flashbacks, and sleep disturbance, and he also that found that the plaintiff was not malingering.[98]
[98]T81
Other consequences
323 Counsel for the plaintiff relied on the plaintiff’s description of his current psychiatric problems in his affidavits.[99] Therein, the plaintiff deposed that he continued to feel down and depressed and anxious a lot of the time because of his back pain and resultant limitation on his activities – housework, gardening, driving, playing with his children, fishing and other sports including boxing, cricket and football. Further, his concentration and memory are poor and his relationship with Kylee had suffered as a result of his injury.
[99]T93
324 It was submitted there was no reason at all why the plaintiff’s description of his pain and his symptoms, nor the psychiatric consequences complained of, should be accepted.[100]
[100]T95
325 I am not satisfied that the psychiatric consequences complained of are severe.
326 As mentioned earlier, those involved in the plaintiff’s care have not thought his psychiatric condition properly calls for specialist treatment in that regard.
327 It seems the plaintiff is still able to engage in a range of activities despite his psychiatric condition. As Dr Wearne noted in March this year, the plaintiff continues to be able to perform tasks around the house such as lawn mowing and lifting his children, although with pain at times. She noted he has returned to most physical tasks to maintain his home and activities of daily living.
328 These comments by Dr Wearne are somewhat at odds with Kylee’s description of the plaintiff’s level of activity in her affidavit.
329 The plaintiff told Dr Bloom he could spend half the day in the garden weeding but would end up sore – a not unusual situation for any person, as counsel for the defendants submitted.[101]
[101]T73
330 The plaintiff also told Dr Bloom he took his children fishing and to the park. He told Dr Van Ammers he went fishing off the bank of the river. Further, in recent times, the plaintiff had bought a boat.[102]
[102]T72
331 The plaintiff is still able to ride his new motorbike, although he does not do so presently on his solicitor’s advice, as he is unlicensed.
332 The plaintiff’s involvement in football , cricket and golf pre incident was not great and the loss of these sports is not a consequence of any particular significance.
333 In my view, there has been no significant interference with these activities as a result of the plaintiff’s psychiatric condition. Dr Van Ammers went further, concluding that from a purely psychiatric perspective, there was no impairment of social or domestic activities.
334 The plaintiff has ongoing problems with alcohol abuse which are not said by his treaters to be related to his injury and have necessitated his attendance at two recent courses. He has also had to undergo a men’s behavioural course following the assault on his sister early this year.
335 I accept that the plaintiff has some features of PTSD, with dreams about falling and being distressed around ladders, but specialist in this field, Dr Van Ammers, specifically excluded this diagnosis and the only supporter thereof is psychologist, Ms Crotty.
336 Counsel for the plaintiff submitted another very important consequence of the plaintiff’s psychiatric impairment was its effect on the plaintiff’s relationship with Kylee and the difficulties they had experienced thereafter.[103]
[103]T93
337 The plaintiff acknowledged there had been ups and downs in their relationship before the incident but no intervention orders until afterwards.
338 It is somewhat difficult however to reconcile this evidence with Kylee’s affidavit in which she makes no mention of any problems in the relationship before the incident, nor does she mention the intervention orders thereafter. Further, she deposed that the plaintiff usually lives with her and the children. The plaintiff however stated that he is allowed to stay with them “legally”[104] three nights a week and otherwise stays with his mother, his mother-in-law and a mate in between times in Lakes Entrance.[105]
[104]Presumably because of their respective pension entitlements
[105]T9
339 Given the level of the plaintiff’s psychiatric symptoms, the absence of significant ongoing treatment and the plaintiff’s ability to participate to a large extent in normal activities of daily living, [106]I am not satisfied that the plaintiff’s psychiatric condition, however diagnosed, results in employment consequences of the type that could be described as “severe.”
[106]Transport Accident Commission v Katanas [2017] HCA 32 at paragraphs [21] and [24] – discussion of relevant criteria for finding of “severe”
340 Further, I am not satisfied that as a result of his psychiatric condition that the plaintiff he can establish that he has suffered a loss of earning capacity of 40 per cent on a permanent basis.[107]
[107]T56. Counsel for the plaintiff submitted the appropriate without injury earnings figure was based on $893 per week, the plaintiff’s earnings at the time of the incident; counsel for the plaintiff suggested a much lower figure of $235 per week based on the plaintiff’s 2010 gross earnings of $20,355 - T T57
341 Although now some years ago, in August 2013, Associate Professor Doherty considered there was no psychiatric condition consequential to the physical injury and no psychiatric contraindication to the plaintiff returning to his pre-injury hours and duties.
342 In 2014, Dr Prytula thought the plaintiff had a full work capacity.
343 Ms Crotty’s view in August 2016 that the plaintiff has no capacity for work was based on her diagnosis of PTSD, one not shared by any psychiatrist and specifically discounted by specialist in this filed Dr Van Ammers.
344 Whilst Dr Wearne thought the plaintiff was unlikely to undertake pre-injury employment, she thought, on physical grounds, he had a current capacity to work suitable to his level of training. She did not mention any incapacity on a psychiatric basis and thought it would be beneficial or him to return to work.
345 Understandably, Dr Serry thought the plaintiff could not do pre-injury work because of his fear of ladders. Whilst he was “very dubious” about a return to work on the basis of the plaintiff’s Adjustment Disorder and also other relevant factors under Section 5 of the Act, he did not attribute any such incapacity to a Pain Disorder, nor did he adequately explain his view as to the plaintiff’s incapacity on the basis of his diagnosis.
346 Having noted the plaintiff’s incapacity for work was primarily focussed on the negatives and his belief he cannot, Dr Van Ammers thought there was a range of work positions the plaintiff could do compatible with the nature of his psychological difficulties but gave the plaintiff some “leeway” in concluding he did not have a capacity for his pre-injury work.
347 Taking into account all the evidence, I am not satisfied the consequences of any Pain Disorder or any other psychiatric condition related to the incident, are severe or result in the requisite loss of earning capacity of 40 per cent on the figures suggested by either counsel.
348 Accordingly, the application pursuant to clause (c) is also dismissed.
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