Winkworth, Neville v CGM Investments Pty Ltd
[2009] VCC 1465
•12 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY
Case No. CI-09-00171
| NEVILLE WINKWORTH | Plaintiff |
| v | |
| CGM INVESTMENTS PTY LTD | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 and 9 September 2009 |
| DATE OF JUDGMENT: | 12 October 2009 |
| CASE MAY BE CITED AS: | Winkworth, Neville v CGM Investments Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1465 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – application for leave pursuant to s.134AB(16)(b) – pain and suffering – loss of earning capacity – psychiatric impairment.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC and | Slater & Gordon Ltd |
| Mr P Halley | ||
| For the Defendant | Mr P D Elliott QC and | Hall & Wilcox |
| Ms M Taaffe | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from August 2001 until 30 October 2001 (“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 s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to Section 134AB(37)(c) which requires he establish a permanent severe mental or permanent severe behavioural disturbance or disorder.
4 The body function relied upon in this case is psychiatric impairment.
Outline of s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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 “at least very considerable” and “more than significant” or “marked”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. His general practitioner, Dr Verghese, and Dr McDonough, medico-legal examiner, were required to attend for cross examination. 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
6 The plaintiff is presently aged thirty seven, having been born on 23 March
7 The plaintiff was educated to Year 11 and then undertook a year of an air conditioning apprenticeship with Air Chief at the age of eighteen. He then did two years of a motor mechanic apprenticeship, which he did not finish because his employer experienced financial problems.
8 In cross examination, the plaintiff denied he did not complete these apprenticeships because of his cannabis use.
9 The plaintiff then undertook various jobs, including factory work and pay TV installation for about five or six years, interspersed with periods of unemployment. He also did some air conditioning installation during the summer months.
10 In the 2000-2001 financial year, the plaintiff worked for a company called Benson, installing Foxtel cables, and he earned a total of $8,400. He also worked for an employment agency called Forstaff which sent him to work at Safeway, where he earned $9,600 doing store work.
11 In the 1999-2000 financial year, the plaintiff worked for Wayne’s World as an air conditioning installer and he grossed $23,200. He also received New Start payments of $2,966 when he was not working.
12 In cross examination, the plaintiff thought it was possible that there was something like eighteen months when he was unemployed prior to the said date but it was a long time ago and he could not really remember. He agreed that the air conditioning work was seasonal.
13 In 1996, the plaintiff had a number of blackouts for which no obvious cause was found. In 1999, he suffered a back injury whilst working for Benson. He was off work for about three or four weeks and underwent physiotherapy.
14 In late 2000/early 2001, the plaintiff made a WorkCover claim in relation to his right hand. That problem resolved.
15 The plaintiff deposed that before the said date, apart from suffering from Barrett’s oesophagus (“the stomach condition”), he was in good general health and was able to undertake an unrestricted range of social, domestic and leisure activities.
16 The plaintiff explained that the problem with his stomach “is that the valve does not close over the bottom of the stomach so it allows for reflux to get up there and corrode the oesophagus”. The condition requires regular endoscopic tests.
17 The plaintiff commenced employment with the defendant as a carpet technician in approximately August 2001. His job involved carpet dry cleaning and steam cleaning.
18 In late October 2001 whilst cleaning at the Preston bingo hall, the plaintiff suffered a back injury after lifting some tables. He was off work for two or three days and returned on light duties.
19 Despite certification from his doctor to this effect, the plaintiff was sent to do a further heavy cleaning job on the said date which involved him having to pull a cleaner up a flight of stairs. Towards the top of the stairs he felt increased pain in his back, neck and left shoulder (“the incident”).
20 In June 2004, the plaintiff underwent an MRI scan of his neck. In cross examination, the plaintiff was asked about this scan and an ultrasound, which were essentially normal, and said “there are certain things that cannot be picked up on scanners”.
21 Between November 2004 and March 2005, the plaintiff undertook rehabilitation at Cedar Court which included psychological counselling.
22 The plaintiff deposed that his alcohol use became excessive following the incident and he also increased his cannabis intake. He deposed that in 1992, he was charged with possession of 6 grams of cannabis and 0.1 gram of speed.
23 In cross examination, the plaintiff agreed his problem with drugs could have coincided with the period when he was an apprentice. He agreed that he was also convicted of use of cannabis and speed but he denied using speed. In 1993, the plaintiff was charged with assault.
24 In May 2005, the plaintiff undertook an alcohol and cannabis withdrawal detoxification at the Peninsula Drug and Alcohol Program (“PenDAP”) in Frankston. It was a day treatment program over twelve weeks. Following that program, he stopped using marijuana for seven months but continued drinking alcohol.
25 Whilst at Frankston the plaintiff was prescribed Valium to assist him reduce his alcohol consumption but the medication had adverse effects on him and made him very angry. In cross examination, the plaintiff agreed he had problems with anger which stemmed from his condition and the fact he cannot do the things he would like to.
26 During one of these outbursts, the plaintiff punched the windscreen of his girlfriend’s car. He could not clearly remember saying that he felt he had been betrayed by his partner when he was being treated at Frankston on 24 May 2005 but if “that was what was written there he would have”.
27 There was also a notation on the PenDAP file that the plaintiff thought he had “institutionalised his mother and had chosen to move out until he felt suitably in control”. The plaintiff explained that his mother had seen him drunk and had had a panic attack or something similar and she fell and hit the ground and had to go to hospital.
28 The plaintiff agreed his relationship with his partner had been tumultuous. He also had had arguments with his parents because of his behaviour and he had agreed to concentrate on abstaining from cannabis in May 2005.
29 The plaintiff organised to see a psychiatrist, Dr Hokins, in about 2005. He saw him three or four times.
30 The plaintiff gave evidence that he is still drinking from twelve to eighteen full strength stubbies a day. He tried to stop after a pancreatic attack in May 2009 but, “it just gets on top of him”. The plaintiff takes Tramadol at night and Panadol and alcohol during the day.
31 The plaintiff has been pretty successful in reducing his marijuana usage. After a “suicide attempt” in May 2009 when he was plotting to end his life by throwing himself in front of a train or crashing his car, the plaintiff “had to make sure it was not the marijuana so he made a big ditch attempt to stop it”. He uses it only fortnightly now and “just a little bit”.
32 The plaintiff last smoked marijuana two weeks ago on the weekend but it had been three months since he had smoked it daily. Dr Verghese urged the plaintiff to get some help, however he tried to help himself but to no avail. The psychologist the plaintiff had spoken to had urged him to get some professional help which he has not done as yet.
33 The plaintiff “tried to do it on his own as he did not want to have a stigma attached to him that he needed to go and see a shrink”. He stopped seeing Dr Hokins because he thought he was doing all right and that he could handle it himself with marijuana and alcohol.
34 In cross examination, when asked why he had not had further psychiatric treatment, the plaintiff said he had spoken to his doctor about it – “he was meant to get onto it last week but he had not as yet unfortunately”. The plaintiff agreed he “was still getting around to it”.
35 In cross examination, the plaintiff said he first started taking marijuana at the age of seventeen and has been effectively using it for twenty years but he is trying to stop. His present usage is better than the forty bongs a day he was using after the said date. The plaintiff paid for his habit with money from his partner and his father. He thought a bong cost about fifty cents to one dollar. Before the said date, the plaintiff had a maximum of ten to fifteen bongs a day.
36 In or about May 2009, the plaintiff was admitted to the Monash Medical Centre for a period of approximately five days for gastrointestinal problems in relation to his stomach condition and also pancreatitis secondary to alcohol use. He was in hospital for five days, during which time he had an endoscopy to treat the bleeding and he was on a drip for four days for the pancreatic attack.
37 The plaintiff confirmed that pancreatitis was a very painful condition and he thought he was dying at the time of his admission.
38 In total, the plaintiff was off alcohol for seven days after this attack but he went back to drinking because he “had been going through a lot of pain and stuff so he needed to do something. That was what the depression had done for him”.
39 Over the last weekend prior to the hearing, the plaintiff had two slabs of beer which he drank with his friend and father. He said he “would not say it was an enjoyable experience, it was just something he did everyday”.
40 The plaintiff would like to stop drinking. He did not know whether he could when the court case is over as he could not predict his future.
41 Since the said date, the plaintiff has attempted to do light work, including working for his friend, John Occhipinti, in his air conditioning business, from March 2006 to March 2007. The plaintiff was formally apprenticed to Mr Occhipinti and almost completed the second year of his apprenticeship during that time.
42 In cross examination, the plaintiff agreed that in the past he had been working in air conditioning installation without a qualification but he wanted to finish his apprenticeship as the “times were changing” and work would be limited in the future.
43 Whilst working for Mr Occhipinti, the plaintiff was on Tramadol and struggled with the work physically. The medication made him drowsy and he often fell asleep at work. The plaintiff performed light office work as well as air conditioning installation. The installation work involved him working with pipes getting cables through the roof and general installing. Mr Occhipinti did the heavy work and loaded the van. At the end of a day, due to the medication, the plaintiff was unable to do the work required of him. While he was working with Mr Occhipinti he was “slipping in” one or two or three drinks at lunchtime.
44 The plaintiff was working twenty to thirty six hours per week depending on his condition. He could work thirty six hours on light duties in the office but he had to be very medicated to do that.
45 Because of the plaintiff’s inability to cope with his duties, Mr Occhipinti had to let him go. The plaintiff initially deposed he did eight days of cash in hand work for Mr Occhipinti. He was able to do approximately half a day’s work and then “he was wrecked for the rest of the week”.
46 In his recent affidavit, the plaintiff deposed that he continued doing this work approximately one or two days every week or so from four to seven hours a day up until April or March 2009 when he stopped work as he had continuing pain.
47 In the 2006-2007 financial year, the plaintiff grossed $19,351 from Creamar Nominees, Mr Occhipinti’s business. The plaintiff was paid fifteen dollars per hour. He also received Centrelink benefits of $1,879.
48 In cross examination, the plaintiff agreed he applied for Centrelink disability payments after he ceased work in March 2007. He was shown the DSS application form signed by him which set out that his employment was terminated due to shortage of work and an ongoing medical condition in his neck and shoulder and also a large laceration in his hand.
49 The plaintiff was also shown the separation certificate signed by Mr Occhipinti which set out that the plaintiff’s reason for stopping work was that there was a shortage of work.
50 When asked whether he would still be working for Mr Occhipinti if the work had not run out, the plaintiff said “you would have to ask John that”. The plaintiff then said he would not be working.
51 The plaintiff agreed he stopped work “maybe because of a culmination of work running out and his injury”. Further, he was also unable to finish trade school because he could not sit for a full day.
52 The plaintiff explained that his pain seemed to get worse every time he tried to go and work and he only worked for a little bit of extra cash. Mr Occhipinti last rang the plaintiff asking him to work probably in March or April this year and the plaintiff has not looked for any other work since.
53 If he had the ability, the plaintiff would like to work, “that is what he has tried to do, having tried to complete his apprenticeship but to no avail”.
54 Until his dosage was recently increased to 200 milligrams, the plaintiff took 150 milligrams of Tramadol on alternate days. He tries not to take it because he “becomes a different person” but he needs it as without it his pain is unbearable. The Tramal is in the form of a slow release tablet, and the plaintiff also takes eight Panadol a day. He is unable to take anti inflammatories because of the stomach condition.
55 For a period following the said date, the plaintiff took antidepressant medication. In March or April 2009, Dr Verghese recommended the plaintiff take the antidepressant, Cipramil, as he was feeling more depressed.
56 The plaintiff continues to have myotherapy treatment funded by WorkCover. He receives deep tissue massage, loosening up his shoulder, back and neck.
57 The plaintiff has continuous left shoulder pain from the back of his left shoulder, the front of his left shoulder and through the side and over the top of his shoulder. The pain is there most of the time except when he is taking Tramadol which “knocks him out.”
58 The plaintiff also has pain in both sides of the neck and in his lower back on the left side which is present most of the time. The pain is eased by medication at night to sleep. It is made worse walking and just general everyday things such as sitting for long periods of time. The plaintiff struggles quite a bit walking unless he is medicated and “boozed to the eyeballs” which seems to take the pain away.
59 The plaintiff is suffering pain everyday. He has done all the exercises suggested by doctors but it is “a matter of one step forward, two steps back”.
60 The plaintiff agreed that even though he was not doing anything of great physical consequence, his situation had got worse, and he deposed that working for twelve months trying to complete the apprenticeship did not help.
61 The plaintiff “does not have a clue” what is wrong with his back. He did not know whether it was a culmination of the shoulder, neck and back all together, “but that was what was occurring”.
62 Prior to the incident, the plaintiff could not recall being treated for psychological difficulties.
63 Since the incident, in terms of suicidal ideation, the plaintiff has “had more than thoughts and he had actually plotted a few things”. These thoughts come and go on a daily basis but the Cipramil “seemed to have toned it a little”.
64 The plaintiff has constant depression which includes lack of motivation, lack of willingness, no inhibition and restlessness, knowing that he is not going to achieve certain goals.
65 During the day, the plaintiff does not do much at all. He just sits mainly on the couch or around the house. He also has problems sleeping, just constantly tossing and turning about three nights a week.
66 The plaintiff does not feel very good at all about himself, he feels pretty worthless and he is “not much of a member of society”.
67 The plaintiff sees Dr Verghese every two to three weeks. In addition to Tramadol and Cipramil, Dr Verghese prescribes Somac for the plaintiff’s stomach. The plaintiff’s stomach condition has got worse due to excess alcohol.
68 For about the last two years, the plaintiff has lived with his partner, who is a nurse, and their children three days a week and the other days he lives with his parents.
69 The plaintiff’s parents do the housework. The plaintiff tries his best to do things. He tries to push the lawn mower if he has to but it is a little bit too painful for him.
70 The plaintiff was involved in a job assistance program with KTM Consultancy in 2004. The plaintiff agreed that he told the vocational assessor on 10 March 2004 that he believed he would be completely rehabilitated physically in eight to twelve weeks and able to go back to his old job. That was originally his aim but he did not complete his apprenticeship. The plaintiff agreed, as of 2004, physiotherapy treatment was working well and he was feeling much better. He confirmed it was always his aim to get back and finish his apprenticeship. He had a van and the necessary tools to get some contracting work and “could go back to work if his body was capable and he thought it would be better”.
71 After this conversation with the vocational assessor in 2004, “everything just seemed to get worse and that was the end of it”. Physiotherapy did not work. His condition obviously had got worse. He thought “he would get himself right but it did not eventuate that way”.
72 At that time, alternative jobs were suggested but the plaintiff wanted to continue in his trade and was not interested in being a factory inspector because he could not sit and stand for long hours.
73 The plaintiff could not go back to carpet cleaning because that “would be a nightmare in itself” and he would be unable to carry around heavy equipment. He could not sit for long periods of time as a delivery driver. He said he was struggling whilst in court. He could only sit for half an hour to an hour because of pain up through his back and up through his shoulder and into his neck.
74 The plaintiff has a forklift licence, a licence to install split air conditioning and ducting and also a CFC licence. He used to have a restricted cabling licence.
75 The plaintiff was assessed by Recovre in 2005. He agreed that at that time he thought job seeking assistance was inappropriate as he was likely to secure employment with an acquaintance whom he confirmed was Mr Occhipinti.
76 The plaintiff explained that he had been unsuccessful getting jobs with other people because no one wanted to employ him because of his injury and he wanted to get back into his old field of work.
77 The plaintiff was asked about an examination with Dr McDonough in late 2008. The plaintiff confirmed he had difficulty at that time when attempting to raise his left arm above the level of his shoulder because of pain and “that is what he takes the medication for”. The plaintiff agreed that when he saw Dr McDonough he was walking normally without assistance and confirmed that the majority of problems related to his neck and shoulder, but then said he had pain down through his back.
78 The plaintiff was asked about the examination with Dr Stevenson in February 2009. The plaintiff agreed he sat and stood throughout the interview with Dr Stevenson and kept his left arm markedly by his side, including undressing, which he did entirely right handed. The plaintiff said he was depressed because he had not had any treatment so he thought everything was compounded at that stage.
79 The plaintiff “found it hard to believe” that he was exaggerating his condition on these examinations. Being filmed on his way to the appointments “was the last thing on his mind”. He said that he took no medication before those appointments so the doctors could see the full extent of his injury.
80 The plaintiff has tried to stop drinking but he has been unable to do so. He does not want to live the way he does, as he has been for the last eight or nine years, and put up with this situation for the rest of his life.
The Plaintiff’s Medical Evidence
81 Most of the medical evidence in the plaintiff’s Court Book related to his physical injuries, in relation to which a claim pursuant to subsection (a) is no longer being pursued.
82 The plaintiff’s general practitioner, Dr Verghese, confirmed that the plaintiff attended on 22 October 2001 with back and left shoulder pain secondary to cleaning at work, and he was given two days off. The plaintiff represented on the said date complaining he had aggravated his back and left shoulder whilst lifting a cleaner at work and he was given a further two days off and put on light duties.
83 The plaintiff was sent for physiotherapy and was unable to work. From an early stage Dr Verghese thought the plaintiff could not go back to his old job.
84 Dr Verghese noted the plaintiff had tried physiotherapy, myotherapy and a rehabilitation course at Cedar Court, none of which had helped. Mr Patel, orthopaedic surgeon, arranged an MRI scan of the plaintiff’s left shoulder which was normal, and an MRI scan of the cervical spine showed disc bulging of a minor degree. The bone scan carried out by Dr Fish was normal.
85 In his most recent report of September 2009, Dr Verghese noted the plaintiff continued to have pain. The plaintiff was currently taking Tramadol SR, 200 milligrams a day, the highest dosage that can be prescribed, and continued to have myotherapy. The plaintiff was also suffering from depression due to the persisting pain which prevented him from working and also affected his ability to support and look after his young family.
86 The plaintiff was on Cipramil but he had also been drinking alcohol heavily and smoking marijuana. Dr Verghese noted the plaintiff had recently stopped the marijuana use and had tried to decrease his alcohol intake. In Dr Verghese’s view, the alcohol and marijuana abuse stemmed from frustration as the plaintiff’s condition had not improved.
87 In examination in chief, Dr Verghese confirmed that when he has seen the plaintiff since October 2001, every time the plaintiff has come in he has complained of pain. The plaintiff believes that he is in pain and he has pain in his shoulder, neck and back which restricts him. Various treatments and medication had been tried but the plaintiff’s pain had never improved.
88 Dr Verghese considered the plaintiff’s problem was more psychological than physical. He confirmed in cross examination that there was really no physical basis for the plaintiff’s complaints.
89 Dr Verghese thought the likely cause of acute pancreatitis for which the plaintiff was admitted to hospital in 2009 was “definitely alcohol”. He noted there was no indication of heavy alcohol use prior to 2001. In 2005, the plaintiff was sent to Peninsula Health, where he tried to come off alcohol and cannabis, obviously unsuccessfully. Dr Verghese agreed the plaintiff could not simply decide to stop drinking.
90 In cross examination, Dr Verghese confirmed a number of entries in the plaintiff’s file before the said date. On 20 February 1998, it was noted the plaintiff was anxious and tearful. On 22 June 2001, the plaintiff had neck pain and was told to have a massage. On 3 September 2001, the plaintiff strained his lumbosacral back lifting on the weekend.
91 Dr Verghese agreed that until 2009 the plaintiff had not really mentioned much to him about an alcohol problem. On 25 February 2009 when the plaintiff attended the surgery, he was really down, in tears and very frustrated. On that visit, the plaintiff said he was drinking a lot of alcohol.
92 Dr Verghese advised the plaintiff to stop drinking and smoking marijuana and to take his antidepressant. On that visit he changed the plaintiff’s medication to Cipramil, having previously prescribed Zoloft, Avanza in 2006 and Aropax in 2008.
93 Dr Verghese prescribed Tramal to be taken on an ‘as needs’ basis. It is a middle level drug between Panadol and Panadeine Forte and MS Contin and other drugs.
94 Dr Verghese assumed the plaintiff had not been working since March 2007. He agreed that taking Tramal would not ordinarily interfere with someone’s physical work. In his view, Tramal might cause a bit of drowsiness “but that would be it”.
95 Dr Verghese had no knowledge of the extent of the plaintiff’s present cannabis use but it was his understanding that cannabis was the main reason for the 2005 treatment at Frankston.
96 Dr Verghese noted that one of the complications with the plaintiff’s stomach condition was that if you drank a lot of alcohol there was the risk of a massive bleed and therefore alcohol would aggravate the condition.
97 Dr Verghese agreed with Dr McDonough’s view that things would improve if the plaintiff was treated and stayed off alcohol.
98 Dr Verghese believed the plaintiff was suffering depression and anxiety that had definitely been aggravated by his neck and shoulder pain and the compensation process. He thought the plaintiff was genuine and was in pain and he was not sure whether the plaintiff could get back to a normal functioning level.
99 Dr Verghese did not think the plaintiff “enjoyed what he is doing”. He noted the plaintiff really wanted to try and give up drinking and cannabis; he has two young children and he wants to have a family and a family life. His partner, with whom Dr Verghese understood the plaintiff resided, was also not happy with his drinking and cannabis use and had said to Dr Verghese in confidence that she had even considered leaving the plaintiff.
100 In re examination, Dr Verghese confirmed that the plaintiff has no current work capacity as a result of depression, anxiety and stress because of his WorkCover injury.
101 He did not think the plaintiff would get back into a normal workforce job from nine to five but, in his view, obviously the plaintiff could do part time work. He did not consider the plaintiff’s capacity for work would improve in the future.
102 There were a number of reports from Eden Law, physiotherapist, who treated the plaintiff for soft tissue strain to his neck and back at Springvale Sports and Spinal Physiotherapy during 2001. It was noted the plaintiff attended for four sessions with steady improvement.
103 The plaintiff also attended another physiotherapist, Roger Chan, in early 2002 complaining of left shoulder pain. As of the last attendance on 13 March 2002, it was noted the plaintiff’s condition had not stabilised.
104 The plaintiff also had physiotherapy at the Southern Rehabilitation and Sports Physiotherapy Centre, first attending on 8 July 2002 following a referral from his general practitioner who diagnosed a left rotator cuff disease.
105 During March 2003, the plaintiff reported his cervical spine had settled but he was still having some scapular pain. When he attended on 5 July 2003, he reported his neck and left shoulder were very sore. When last seen on 22 November 2003, the plaintiff reported a forty five to fifty per cent improvement of his pain over the course of treatment.
106 The plaintiff continued physiotherapy treatment at that practice during 2004. It was noted during that time that the condition of both his cervical spine and his shoulder had improved but he was still left with moderate restriction of left shoulder movement and mild restriction of cervical movement.
107 The plaintiff saw Mr Patel, orthopaedic surgeon, in late 2003 complaining of shoulder pain. Mr Patel organised for plain x-rays and an MRI scan of the left shoulder. Initially he thought he may have been dealing with a low grade adhesive capsulitis. He noted the plaintiff requested a certificate to APRA regarding premature release of his superannuation on the grounds of chronic pain. Mr Patel noted he had given the plaintiff that certificate with “due reservations”.
108 Mr Patel saw the plaintiff only once. He considered the MRI scan showed no pathology. In a supplementary report, Mr Patel noted that the plaintiff, having been given the APRA certificate, failed to keep any subsequent appointments.
109 The plaintiff was assessed by Dr Lewinsky at Cedar Court on 23 August 2004. At that time the plaintiff was complaining mainly of left sided neck pain going out to the left shoulder tip and he was using Panadol occasionally.
110 The plaintiff underwent a multidisciplinary rehabilitation program (including one to one counselling sessions with a psychologist) of fifteen sessions between 17 November 2004 and 17 March 2005. It was noted that during the program there had been some improvement in sleep, fatigue, mood, self management and pain, and increased motivation to continue with self management but the plaintiff did not achieve capacity for his usual air conditioning installation work. There was no mention in the Cedar Court documentation of any cannabis or alcohol dependence.
111 In the discharge summary dated 17 March 2005, it was noted there was a deterioration in the plaintiff’s mood whilst on the program and he had recently been prescribed Lovan.
112 Notes from PenDAP were tendered relating to the plaintiff’s attendance in May 2005. At that stage the plaintiff presented requesting assistance to withdraw from alcohol and long term cannabis use. He advised Peninsula Health that he was having eight to nine standard drinks a day and using three grams of cannabis a day.
113 On presentation, the plaintiff reported certain relationship issues that hindered his progress in achieving continued abstinence from all substances. His adverse response to Diazepam was noted.
114 In the Summary Management Plan there was mention that the plaintiff had long term heavy use of cannabis – three grams a day – and increasing use of alcohol. He was involved in a WorkCare injury in 2001 and suffered shoulder, neck and back pain. It was noted self medicating had increased and the plaintiff had depression eighteen months after the injury. It was noted there was concern that with the removal of cannabis and alcohol, pain management concerns could be exacerbated. It was noted the plaintiff wanted to attempt abstaining.
115 At the time of that admission the plaintiff was using three grams of cannabis and he was drinking six stubbies, or 8.4 standard drinks per day.
116 Ms Przybylska, myotherapist at Bayside Myotherapy Clinic, provided a number of reports, the most recent in August 2009. She noted the plaintiff continued to experience problems to his left shoulder, neck, spinal muscles and pectoral muscles as a result of the incident. She considered any absence from myotherapy resulted in stronger pain and higher restriction of movement of the plaintiff’s left injured side. She noted the plaintiff’s condition was of a recurrent nature. It improved with treatment but continued to come back. The treatment was helpful in reducing the plaintiff’s pain and movement restriction, improving the quality of his everyday life.
117 The plaintiff continues to have physiotherapy from Greg Cunningham at the Melbourne Physiotherapy Group. He had ten treatments between August 2008 and August 2009. At the end of that period, Mr Cunningham estimated that the plaintiff’s capacity was eighty per cent, having increased from seventy per cent.
118 Dr McDonough, expert in clinical toxicology and addiction medicine, examined the plaintiff for medico legal purposes on 23 December 2008.
119 The plaintiff told him he commenced using cannabis at seventeen and had his first drinking experience about that time. His cannabis smoking had been more or less continuous over the years and the plaintiff estimated this had increased over the previous twelve months because of the stress relating to his compensation claim.
120 The plaintiff told him that by the age of twenty five, he was drinking three to four standard drinks on a Friday and a Saturday night and he would never drink excessively.
121 The plaintiff described and attributed an escalation in his drinking occurring in the months following his work accident because of persistent pain, along with symptoms of anxiety and depression.
122 The plaintiff told Dr McDonough that a year or so later he was drinking half a bottle of scotch daily and after a couple of years had increased to drinking a bottle. Because of the cost of scotch he changed to drinking beer and his then consumption then was twelve to eighteen stubbies.
123 Dr McDonough noted that in about 2005 the plaintiff was referred to PenDAP where he underwent an inpatient detoxification program. The plaintiff told Dr McDonough that this intervention was followed by approximately seven months of abstinence from cannabis use. Further, during the hospitalisation the plaintiff had been prescribed Valium which made him more agitated.
124 The plaintiff told Dr McDonough that there had been no other sustained periods of abstinence during more recent years.
125 The plaintiff asserted that over the past few years he had developed severe dependence on both alcohol and cannabis which he correlated with his post accident time period because of progressive pain severity, functional disability and depressive symptoms.
126 The plaintiff told Dr McDonough that between March 2006 and early 2007, he did some half day light duties for a friend.
127 On examination, Dr McDonough noted the plaintiff was a well built, lean and muscular man who walked normally and without any assistance or appliances. There were no signs of any overt alcohol or drug related impairment. The plaintiff’s abdomen was lax and there was neither organomegaly nor stigmata of chronic liver disease detected.
128 Dr McDonough commented that also notably on examination the plaintiff had difficulty when attempting to raise his left arm above the level of his shoulder which he reported was limited by pain, and while attempting this action his hand began shaking. However, there was no restriction to a full range of passive movement at the left shoulder joint.
129 On mental status examination there was no evidence of any current alcohol or drug intoxication syndrome. The plaintiff was alert and appropriately orientated and without evidence of thought, perception or significant cognitive disorder, although his short term memory testing was mildly impaired.
130 Dr McDonough telephoned Dr Verghese in December 2008 who told him that whilst he was aware of the plaintiff’s cannabis problem, he was not aware of the extent of his drinking problem nor had that issue been raised with the plaintiff at any time recently. Dr Verghese also felt the plaintiff had no evidence of significant organic impairment but acknowledged finding psychological problems, i.e., abnormal illness behaviour along with anxiety and depression. Dr Verghese indicated the plaintiff did not have a good attendance record at his clinic.
131 Dr McDonough diagnosed a pain disorder (chronic) with significant psychological factors, DSM IV-307.80, adjustment disorder (chronic) with anxiety and depressed mood, DSM IV 309.28, alcohol, cannabis and nicotine dependence syndrome.
132 Dr McDonough thought the plaintiff had a pre existing chronic anxiety condition, possibly since childhood, and his background history suggested a likely vulnerability to substance abuse.
133 In his view, since the work incident, the plaintiff appeared to have developed a pain disorder with predominantly psychosocial factors and in addition, continuing and or worsening cannabis and tobacco dependence.
134 Dr McDonough thought with the condition having continued for eight years, the prognosis was poor regarding potential for full recovery. However, he noted there were a number of factors which could potentially improve and therefore have a direct bearing on the plaintiff’s long term outcome.
135 Those factors included the plaintiff’s current level of alcohol dependence, his current level of depression, his current level of cannabis use and his experience of distress in relation to the compensation process. Dr McDonough considered that probably alcohol and cannabis detoxification followed by further treatment for depression and appropriate drug rehabilitation may bring about some improvement in the plaintiff’s mental state which could then pave the way for further functional restoration.
136 He considered that the plaintiff had significant psychological injuries which included pain disorder, depression and alcohol and cannabis dependence and those conditions together precluded any current capacity for the plaintiff to perform his pre injury duties as a steam cleaner/labourer. He considered that that incapacity was permanent.
137 He also noted the problem of alcohol dependence which would impair the plaintiff being able to undertake normal work duties safely and appropriately.
138 Dr McDonough provided a supplementary report in February 2009 in which he stated he believed the plaintiff was likely to have had a long term anxiety problem and from his self report was a regular drinker, mostly moderate but occasionally heavy, and additionally a cannabis smoker. In Dr McDonough’s view, the plaintiff was probably cannabis dependent to some degree and together all those factors suggested that he was likely to have some degree of pre existing personality related vulnerability to psychological distress. However, Dr McDonough noted that condition was not preventing the plaintiff from having a capacity for employment up until the date of the work injury.
139 When asked in cross examination about the prospects of improvement with treatment, Dr McDonough said it was more likely the plaintiff would stay the same or get worse, particularly if the substance use disorders continued. If some of the conditions were removed or went into a state of remission, he thought the plaintiff might be very different on assessment. However, if that were the case, he would still expect, on the balance of probabilities, that the plaintiff would continue to have a disability in terms of his chronic pain disorder.
140 Dr McDonough described the plaintiff as having “serious liver disease”. In his view, because of his alcohol problem combined with depression, the plaintiff was a high risk for suicide.
141 Dr McDonough thought, combining the plaintiff’s physical pain with depression, the plaintiff had a very very limited capacity for a real job.
142 Dr McDonough confirmed that Dr Verghese advised him that he was not aware that alcohol was that much of a problem. Dr McDonough also noted that the Cedar Court report did not mention a problem with alcohol so there were aspects of the plaintiff’s history that were pretty difficult to absolutely corroborate. He said, however, that the plaintiff might have been drinking surreptitiously at Cedar Court and that could have been a contributing factor to the deterioration of his mental state at that time.
143 Dr McDonough said it was unusual to change between beverages in alcohol dependent people, as the plaintiff had done from scotch to beer, but it could be explained on financial grounds.
144 When asked about the plaintiff’s use of cannabis, Dr McDonough said that thirty to fifty bongs was common for people who had a high grade cannabis dependence and they would be the sort of people who would present to detoxification units for assistance.
145 In his view, ten bongs a day was to the lower end of the scale of dependence by dose. The plaintiff had never told him he had used up to forty bongs a day. Dr McDonough said that that would be quite an expensive habit of several hundred dollars.
146 Dr McDonough was reluctant to agree that a reduction from forty to ten bongs would be an improvement, saying it may be temporary.
147 He noted that there was a grievance in the plaintiff’s view of how the injury occurred and the employer’s lack of understanding. Once the compensation process was over and he had got through detoxification, he thought it was possible that the plaintiff’s present state of lack of functioning was not permanent.
148 In Dr McDonough’s view, a pain syndrome is where a person has suffered symptoms that are not readily quantifiable or co relatable with physical pathology and they are fairly extreme and impairing on function. He considered, in purely physical terms, there appeared to be a very distinct correlation with the plaintiff’s distress, and his pain, despite all sorts of treatment, he seemed to get worse. In Dr McDonough’s view, where there was an increasing reliance on drinking, it would suggest that there was a mental disorder rather than a physical one.
149 Dr McDonough thought that the plaintiff clearly had a pain disorder because there was a temporal correlation with deterioration and extraordinary amplification of pain symptoms and disability related not correlated with physical findings. On the grounds of a one off medical assessment, he thought it was most likely that “it looked like a pain disorder not a physical thing”.
150 Dr McDonough agreed that extreme pain behaviour is a form of abnormal illness behaviour. He confirmed that it was “absolutely correct” that there was an inconsistency between the plaintiff’s complaints on formal physical examination and with his presentation generally. He agreed it might be evidence the plaintiff was feigning, but it is not his role as a medical practitioner to establish that. He could suspect it but he thought it was the role of others to comment.
151 Dr McDonough was aware that one must exclude feigning or malingering in a diagnosis of a pain disorder. He agreed it was a possibility that the plaintiff “might be doing it to impress him and further his case,” however it was the duty of the courts, not doctors,” to make this determination.
152 In respect to some aspects of the plaintiff’s background, Dr McDonough noted that it would have been good if there had been more information which would make it “much more robust in terms of diagnostics but that is just not the way it works”. He commented that generally, an examiner gives the patient the benefit of the doubt.
153 Mr Phillip Byrne, psychologist, examined the plaintiff in October 2008.
154 On examination, the plaintiff walked with a limp and seemed agitated, finding it difficult to sit still. He was preoccupied with his injuries and pain and had difficulty recalling events from the past.
155 The plaintiff reported suffering from chronic pain daily, fluctuating in severity, and he felt flat, rundown and depressed all of the day on most days.
156 In Mr Bryne’s view, the plaintiff’s presentation suggested he was currently suffering from a major depressive disorder, recurrent (moderate) and alcohol and cannabis abuse. He considered that the evidence suggested that the major depressive disorder was secondary as a result of workplace injuries.
157 Mr Byrne noted he could not obtain enough information to confirm a diagnosis of alcohol dependence, but he noted from the plaintiff’s description, consumption of alcohol and cannabis appeared to be a form of self medication. From Mr Bryne’s observations and the information supplied, he considered the plaintiff’s condition had been caused by the workplace injury.
158 In Mr Byrne’s view, the plaintiff’s psychological injuries would prevent him from performing his pre injury duties, a situation that was likely to last for the foreseeable future.
159 Mr Bryne noted if the plaintiff’s physical injuries were excluded and there was appropriate psychological treatment for depression, anxiety, pain and substance abuse, the plaintiff would have the capacity to return to work initially part time and possibly full time working in an alternative, less strenuous occupation.
160 The plaintiff completed the Depression, Anxiety and Stress Scale, the BECK Depression Inventory (revised edition) and the Personality Assessment Inventory.
161 Mr Byrne commented that those test results suggested the plaintiff was experiencing symptoms of depression that were currently severe and his symptoms of anxiety were mild and his levels of stress severe. The result of the BECK test suggested the plaintiff was suffering a clinical depression that was moderate in severity. The result of the personality test suggested a probable diagnosis would be alcohol dependency and or a major depressive disorder.
162 In Mr Byrne’s view, there was a strong possibility the plaintiff had a dependence on alcohol.
163 Mr Byrne re examined the plaintiff on 23 July 2009. At that stage the plaintiff presented in a state of nervousness, admitting he had had three cans of beer prior to attending at 10.30 am.
164 The plaintiff reported consuming eighteen to twenty cans of beer daily but sometimes mixed with scotch and coke. He explained he had cut back on smoking and usually confined it to the weekend when he had fifteen to twenty pipes or about 1.5 grams per fortnight. He told Mr Bryne, up until three months earlier he had smoked about 28 grams per week, having smoked 5 grams per week before the said date.
165 In Mr Bryne’s view, the plaintiff’s presentation suggested a major depressive disorder, recurrent (severe without psychotic features), alcohol and cannabis dependence.
166 At the time of that examination, the plaintiff’s primary concern was his suicidal ideation; however, the plaintiff maintained he had not thought of a plan nor means to carry it out as he was worried about the impact on his children.
167 The plaintiff told Mr Bryne he had no intention of cutting down on alcohol and he indicated alcohol helped him cope. Mr Byrne noted the plaintiff appeared to be satisfied he had reduced his cannabis intake.
168 Mr Bryne found a general reduction in anxiety from the previous examination which he considered was a positive development and most likely attributable to the Cipramil. Mr Bryne thought the depressive disorder, alcohol dependence and chronic pain were secondary, developing subsequent to the work injury.
169 The Southern Health notes commence on 26 May 2009. The past history was noted to be the stomach condition and a hiatus hernia and depression - chronic injury. The issues on admission were the stomach condition and pancreatitis. At that time the plaintiff reported alcohol consumption of six to eight beers per day and denied the use of other substances.
Investigations
170 An MRI scan of the cervical spine was carried out on 9 June 2004. Disc bulging was described at C5-6 on the left and C6-7 on the right. It was noted both were of a relatively minor degree.
The Defendant’s Medical Evidence
171 Dr Lewinsky from Cedar Court reported to Dr Verghese on 23 August 2004. There was no mention of any alcohol or cannabis dependency in that report.
172 Dr Lewinsky considered that the plaintiff had a combination of cervical strain but also a pain or related disorder. He noted that he did not usually make much of preserved musculature or even dirt stained hands or the like but he noted the plaintiff’s physique was so noteworthy in combination with borderline bradycardia, i.e., possibly related to preserved fitness, that it must be at least a passing thought that the plaintiff is much more active than reported. However, Dr Lewinsky noted that would be in contradiction to the plaintiff’s overall distress and genuine presentation.
173 Dr Cohen, psychiatrist, examined the plaintiff for medico legal purposes on 22 November 2004. The plaintiff told him that he was feeling more positive after talking to a psychologist at Cedar Court. He told Dr Cohen he had got quite a bit down at one stage and his general practitioner had prescribed Zoloft but he did not like taking it.
174 The plaintiff told Dr Cohen alcohol consumption had become a daily occurrence because he was so frustrated and that he would consume half a bottle of scotch every day as well as half a dozen cans. He told Dr Cohen that this was now under control and that he was only drinking once a week for the past three weeks. He had sought help from his general practitioner but that was of no value and he had spoken to a priest who helped him see things more clearly and he “was battling with himself”.
175 The plaintiff told Dr Cohen his alcohol consumption was out of control for about two years but it was now well controlled. The plaintiff did not mention using cannabis.
176 Dr Cohen diagnosed a chronic pain disorder associated with psychological factors. He thought the plaintiff did not have a capacity to undertake his pre accident employment but the plaintiff was hoping to do so within the next two or three months.
177 The plaintiff was examined by Dr Honey, psychiatrist, on 14 April 2005, at which time he had been taking Lovan for about a month.
178 The plaintiff told Dr Honey that in the last four or five months he had been taking little alcohol. The plaintiff did not mention any cannabis use. He said about three years ago for a year he was drinking heavily but modified that intake when he entered his last relationship.
179 Dr Honey concluded that accepting a physical basis for the plaintiff’s symptoms, which was a matter in dispute, the plaintiff was suffering with an adjustment disorder with anxious and depressed mood which arose in the first place secondary to his physical injury but it was also contributed to by the difficulties the plaintiff had in getting cover under the WorkCover system following his injury.
180 The plaintiff told Dr Honey that he was still depressed at times but he tried to focus on the positives in life but at times was overcome by depressive feelings. The plaintiff said he was still hoping to get back to where he was.
181 On a number of physical examinations, medico legal examiners found there to be signs of pain behaviour or abnormal illness behaviour.
182 Mr Conway, in January 2002, found it difficult to assess the actual extent of the plaintiff’s physical injury as there was an overlay of anxiety and overreaction. However, he thought the plaintiff’s history was consistent with resolved, non specific strains of the lumbar spine and partial resolution of non specific strains around the left shoulder.
183 Mr Troy, orthopaedic surgeon, examined the plaintiff in November 2002 and again in December 2003. Mr Troy initially diagnosed persistent soft tissue strain pattern to the supporting muscles of the cervical spine, left scapula and rotator cuff. On the later examination, he diagnosed an abnormal pain presentation to the left shoulder.
184 Dr David Fish, consultant occupational physician, examined the plaintiff in June 2004. On examination, the plaintiff was extremely anxious and presented with a startled expression. The plaintiff held his shoulders hunched and did not move freely.
185 Dr Fish noted that the results of the bone scan of the cervical, upper thoracic spine and shoulder girdle were normal and that there was no organic pathology. He thought the diagnosis was cervicogenic referred pain with significant abnormal illness behaviour which required assessment and management by a psychiatrist.
186 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff for the purposes of an impairment benefit assessment in April 2005. He noted, on examination, the plaintiff presented as a fit looking, pleasant, tall and slim young man with well developed muscles, walking with a normal gait. He noted there were degenerative changes in the cervical spine and he considered there might have been some aggravation, although the history indicated this was more likely to be a pre existing condition. In his view, there was certainly evidence of a psychological overlay.
187 On 30 November 2005, the Medical Panel assessed the plaintiff’s permanent level of disability at eleven per cent, resulting from physical injuries to the left shoulder, neck and back.
188 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff in November 2006. He considered the plaintiff suffered an acute soft tissue injury to his neck and also a left rotator cuff lesion and an acute back strain. In his view, the plaintiff had also developed an anxious or depressive state with the development of a chronic pain situation.
189 Mr Simm, orthopaedic surgeon, examined the plaintiff on 20 January 2009. He noted that on examination, the plaintiff presented as an extremely anxious but co operative man who displayed almost constant pain signs and was very emotional and tearful at times. Mr Simm noted the plaintiff walked with a normal gait and that there was moderate restriction of thoraco lumbar movement in all directions with a complaint of lumbar back pain on movement. The range of movement on formal examination of the cervical spine was less than observed when distracted. When the plaintiff elevated his left arm and tried to increase elevation to above shoulder height, he reached for his left shoulder with his right hand and buckled at the knees.
190 Mr Simm concluded the plaintiff presented with clinical features of a longstanding pain illness which complicated musculoskeletal strain injuries in the workplace in 2001. In his view, the plaintiff’s symptoms initially may have related to an aggravation of the cervical pathology but that physical injury was then complicated by the development of an abnormal and amplified illness response. He considered it was no longer possible to evaluate the underlying physical condition because of the adverse pain response. In his view, the physical signs presented in relation to the left shoulder were those of a pain illness.
191 Mr Simm re examined the plaintiff on 9 June 2009, at which time the plaintiff told him he suffered from severe depression and had become suicidal. The plaintiff admitted drinking heavily because of depression and chronic pain and that for a time he was drinking on average twenty stubbies a day. This intake led to the plaintiff being admitted to the Monash Medical Centre with haematemesis and pancreatitis. He told Mr Simm that following discharge he had been able to greatly reduce his alcohol consumption to now drinking four to five stubbies a day.
192 On examination, Mr Simm noted the plaintiff presented with quite marked overt illness behaviour. The plaintiff sat in the waiting room on the edge of the chair, almost kneeling on one knee with one hand on his lower back. After a period of sitting this way, the plaintiff moved around the waiting room and entered the consulting room walking slowly with his hand on his back. All movements were undertaken slowly and cautiously. The plaintiff displayed a normal gait.
193 There was marked restriction of cervical movement and moderate restriction of thoraco lumbar movement. Mr Simm confirmed his initial diagnosis of a longstanding pain illness. He thought the plaintiff’s condition was likely to persist and his clinical course would be better predicted by specialists in chronic pain and psychiatry. He considered the plaintiff’s capacity for employment may be prevented by the chronic pain illness and psychological disturbance.
194 Dr Stevenson examined the plaintiff in March 2009. He noted, on examination, the plaintiff was suntanned, of quite muscular build with good muscle definition. In his view, the plaintiff looked really physically not at all unwell. He appeared somewhat distraught and was a rather vociferous historian. He sat and stood alternatively every few minutes throughout the interview. He kept his left arm markedly by his side, including undressing, which he did entirely right handed, and he appeared quite agitated.
195 In formal examination, cervical movements appeared dramatically compromised compared to a full range of spontaneous movement in the neck when the history was given. There was a collapsing pattern of give way weakness in the left upper limb which Dr Stevenson considered more functional than musculoskeletal.
196 Dr Stevenson concluded the plaintiff appeared to have developed a neck and shoulder strain at work. Investigations had shown no significant pathology with the MRI scan of the shoulder being normal. He noted background issues were substance abuse, alcohol and cannabis, and psychosocial distress. He commented that the plaintiff “was seen today as an agitated man with marked but probably behavioural restriction of left shoulder movement”.
197 In Dr Stevenson’s view, there was obviously emotional distress and undesirable drug use which the plaintiff ascribed to pain from his injury. Dr Stevenson considered that was unlikely. He noted, while major physical trauma or pathology may rarely drive otherwise normal people to go to drugs or drink, many people in society who abuse substances often ingeniously rationalise that use. He thought there was no evidence of any substantive pathology in the plaintiff’s neck or shoulder which required major chronic analgesia.
198 Dr Stevenson noted that the recent complaint of non specific neck pain was known to be strongly associated with emotional distress and psychosocial factors. He concluded that the plaintiff appeared to have had a non specific strain years ago which had long resolved. He considered the plaintiff’s current complaint and symptoms required an explanation aside from a minor strain nine years ago. In his view, there was therefore no medical reason for the plaintiff to ingest alcohol and cannabis to relieve the pain of chronic, agonising pathology.
199 Dr Stevenson considered there was, in this case, no evidence of any substantive pathology which would drive the plaintiff to drink or drugs. In his view, there appeared to be emotional distress for personal reasons which was not sufficiently explained via any traumatic injury.
Video Evidence
200 The plaintiff was cross examined in relation to two short videos.
201 On the first date, 20 January 2009, the plaintiff was shown between 11.49 am and 12.03 pm outside Mr Simm’s rooms before a medico legal examination. Over that time the plaintiff paced up and down the footpath smoking and adopting a very strange gait which could not really be described as a limp. He got in and out of his car on a number of occasions and he sat down for about a minute on the ground.
202 On 23 February 2009, the plaintiff was shown outside the rooms of Dr Stevenson and then walking down the street for about two minutes at 4.30 pm. On this occasion the plaintiff was shown walking with a definite limp.
203 The plaintiff was then shown at 5.34 pm that day drinking on the street with a number of people. He stood pretty much in the same spot for about five minutes talking to his friends and drinking a stubby. The plaintiff was last shown at this location at 5.46 pm.
204 In cross examination, the plaintiff identified the location as outside a bottle shop in Westall. He travelled there by train there from the city, having taken a Tramal tablet on the way.
Vocational Evidence
205 When interviewed by a vocational assessor from KTM Consultancy in March 2004, the plaintiff believed he would be completely rehabilitated physically in eight to twelve weeks and he would be able to return to his pre injury work. He reported physiotherapy was working well and he was feeling much better and he believed he would be able to obtain medical clearance to return to work under these conditions. He also stated he had a van and the necessary tools to obtain sub contracting work.
206 A JSA Job Seeker Plan dated 22 June 2005 and reports from that organisation of 26 August and 25 October 2005 were tendered.
207 Recovre carried out a Job Seeker Report on 25 October 2005. At that time the plaintiff thought that JSA assistance was inappropriate as he was likely to secure employment with an acquaintance of his. It was noted the plaintiff had frequently cancelled appointments which were for the purposes of job seeking or training.
Centrelink Documents
208 The plaintiff signed a statement for Centrelink on 18 April 2007 in which he set out his employment had been terminated due to a shortage of work and an ongoing medical condition with his neck and shoulder and he also had a large laceration of his left hand.
209 The Employment Separation certificate signed by John Occhipinti on 16 April 2007 set out the reason for separation was shortage of work.
Overview
210 I accept, in this case, that the plaintiff suffered a compensable injury to his neck and left shoulder whilst working for the defendant in October 2001.
211 Whilst he underwent extensive physical treatment and various tests for the first few years after the incident, it became apparent, with no abnormality being shown on investigations and the plaintiff continuing to complain of ongoing pain in those areas and other parts of his body, that any significant organic basis for his complaints had ceased and had been taken over by non organic factors – a view held by his general practitioner and other medical practitioners.
212 Those of this view include Mr Conway in 2002, Dr Fish in 2004, Mr Battlay in 2005 and Mr Scott 2006. A similar opinion was expressed by Dr McDonough in late 2008 and Mr Simm and Dr Stevenson in 2009.
213 I accept that the plaintiff succeeds in the present application if he establishes a sufficient causal link between the initial compensable physical injury to his neck and left shoulder and a mental condition that meets the criteria of paragraph (c) at the time of the hearing: see Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
214 In the Second Reading Speech on the Accident Compensation (Common Law and Statutory Benefits) (Amendment) Bill, the Government recognised it was proper to maintain a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition.
215 It was noted that the Act does not define the meaning of the word “severe”. The meaning of that word was considered by the Court of Appeal in Mobilio & Balliotis & Ors [1998] 3 VR 833. The Court of Appeal decided that the words “serious” and “severe” should not be equated and that the word “severe” had a stronger meaning than the word “serious”.
216 The plaintiff’s condition has been described as a chronic pain disorder and or a depressive disorder with alcohol and cannabis dependency.
217 To satisfy the DSM IV criteria of chronic pain disorder, a number of factors must be present pursuant to item 307.80, namely:
(a) Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. (b) The pain causes clinically significant distress or impairment in social, occupational or other important areas of function. (c) Psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain. (d) The symptoms are not intentionally produced or feigned. (e) The pain is not better accounted for by a mood, anxiety or psychotic disorder. 218 It was submitted by counsel for the defendant that chronic pain disorder was not an appropriate diagnosis of the plaintiff’s condition, as there was some deliberate feigning of his symptoms.
219 In this regard, counsel for the defendant relied upon the video surveillance, which showed the plaintiff on two occasions outside the rooms of medico legal examiners behaving in what can only be described as a bizarre manner. Further, on the later occasion the plaintiff was shown with a pronounced limp not evident on the first date.
220 When actually examined by both these practitioners, neither found any evidence of a limp and the plaintiff’s gait was normal. However, both found inconsistencies on formal examination compared to casual observation. A similar finding was made by Dr McDonough when he examined the plaintiff in December 2008.
221 Whilst the plaintiff denied having been aware of being filmed, saying “it was the last thing on his mind” it was submitted by counsel for the defendant that that was the reason for his presentation shown on video.
222 I accept that this is the likely explanation for the plaintiff’s unusual behaviour.
223 Further, normally I would not be assisted to any great extent in a serious injury application by film of a person standing around drinking with friends. However, the timing of this activity in the present case is relevant.
224 The plaintiff had left Dr Stevenson’s rooms an hour earlier and was seen on video to be walking with a very noticeable limp. Having taken the train to Westall and ‘bitten’ a Tramal tablet on the way, the plaintiff’s next stop was this social activity standing on the street drinking.
225 Because of my findings as to the plaintiff’s presentation on video and his behaviour during those three examinations in particular, I have considerable concerns as to the plaintiff’s credit and the reliability of his evidence generally.
226 The fact that none of these examiners actually commented that the plaintiff was deliberately exaggerating his condition is of no moment. As Dr McDonough said in cross examination, this was a matter for the Court not for medical practitioners to comment upon in the limited context of a medico legal examination where a practitioner gives the patient the benefit of the doubt.
227 In these circumstances, I do not accept that the plaintiff suffers from a chronic pain disorder as set out in DSM IV.
228 Further, I do not accept that the history given by the plaintiff to various examiners of his alcohol and drug use is particularly accurate.
229 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
230 Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
231 It is difficult to get a clear picture of the plaintiff’s level of alcohol consumption and cannabis usage with the level of his reported intake varying greatly.
232 The plaintiff’s viva voce evidence is that he presently drinks from twelve to eighteen cans of beer per day. He has not smoked cannabis daily for over three months and now does so only fortnightly and then just a little bit.
233 If this is his present level of cannabis use, I do not accept that this is particularly high. On his own evidence, the plaintiff has reduced his cannabis usage from a very high level of forty bongs per day – a habit which Dr McDonough described as very expensive and one which would put the plaintiff in the league of those having to present at hospital for detoxification – to the lower end of the range of ten bongs per day.
234 It is of significance that save for the PenDAP treatment in 2005, Dr Verghese, who has seen the plaintiff on a continuing basis from that time, was not aware of any problem with alcohol until February this year. Whilst one would not necessarily expect a patient to advise his doctor of his level of consumption of alcohol or drugs, if the plaintiff had a problem to the level he describes, one would expect his doctor to have observed signs of dependency on examination.
235 When the plaintiff saw Dr Cohen in November 2004, the plaintiff told him his alcohol consumption was under control and he did not mention using cannabis. Whilst the plaintiff attended Cedar Court on over fifteen sessions/occasions between November 2004 and November 2005, there was no mention of any alcohol or cannabis problem.
236 When the plaintiff saw Dr Honey in April 2005, he said that for the last four to five months he had been taking little alcohol and did not mention using cannabis. On admission to Peninsula Health on 24 May 2005, the plaintiff said he was having eight to nine standard drinks a day and using 3 grams of cannabis.
237 From that time until February this year, no medical practitioner involved in the plaintiff’s care noted any problem with alcohol or cannabis dependency.
238 Histories given by the plaintiff to medico legal examiners of his intake of alcohol and cannabis vary greatly, as referred to earlier.
239 Significantly, when the plaintiff was admitted to Southern Health in May 2009, he had said his current drinking was six to eight beers a day and he denied the use of any other substances.
240 As Dr McDonough conceded, his view as to the plaintiff’s alcohol and cannabis dependency and its causes was based mostly on the plaintiff’s self report. Dr McDonough commented that “it would have made it much more robust in terms of diagnostics” if he had more material available to him in relation to the plaintiff’s history and previous treatment but as he noted “that is not the way it works”.
241 Having found there is no organic basis for the plaintiff’s complaint of pain, and not accepting that he is suffering from a mental disorder in the form of a chronic pain disorder, it follows that any alcohol or cannabis dependence said to be self medicating is not a consequence of a compensable injury.
242 Further, I find it difficult to accept that the plaintiff has the problems he describes, particularly his description of his condition in May 2009 as suicidal, as he has not sought significant psychiatric or psychological management, nor has he been referred to same by his doctor at any time.
243 Whilst he did see Dr Hokins, psychiatrist, on his own initiative three times in 2005, no evidence from Dr Hokins was relied upon by the plaintiff, although the doctor’s notes were available. In such circumstances, I am entitled to infer that the material in his file would not have advanced the plaintiff’s case.
244 There are also no medico legal psychiatric assessments available save for two reports obtained by the defendant’s solicitors over four years ago.
245 I do not accept that the plaintiff has not had further psychiatric treatment because of any stigma attached thereto. I did not find his explanation that “he was getting around to it” and had discussed treatment with his doctor last week, at all plausible.
246 The prescription of antidepressant medication at various times has been the extent of the psychiatric treatment received by plaintiff and he has not been referred to a psychologist save for his involvement in the Cedar Court program.
247 For reasons I have stated in relation to the claim relating to a chronic pain disorder, I also do not accept that the plaintiff suffers from a depressive condition that is severe.
248 I am not satisfied that the plaintiff has a permanent incapacity for employment as a result of any psychiatric condition.
249 The circumstances of ceasing work and then being re employed by Mr Occhipinti are unclear. The plaintiff conceded that he ceased work in March 2007 both because of his condition and also the shortage of work. The only evidence from Mr Occhipinti in this regard is the Separation Certificate signed by him setting out the plaintiff ceased work because of a shortage of work.
250 Whilst the plaintiff maintains he only worked limited hours for Mr Occhipinti, at that time he earned $19,000 in the 2006-2007 financial year, whereas his highest gross income prior to that time was only $23,000.
251 I am not satisfied that any psychiatric problem from which the plaintiff suffers is permanent. There is no specialist evidence supportive of permanency, save for Dr McDonough’s comments in relation to the plaintiff’s dependency problem.
252 The only evidence as to the plaintiff’s prognosis is Mr Byrne’s comment that the plaintiff’s anxiety has improved on taking Cipramil.
253 Taking into account all the evidence, I do not accept that the plaintiff has a mental or behavioural disorder that is severe.
254 Having made this finding, I am not required to consider the plaintiff’s claim in relation to loss of earning capacity.
255 Accordingly, the plaintiff’s claim in relation to both pain and suffering and loss of earning capacity is dismissed.
- - -
0
4
0