Yossef v Pacific Brands Holdings Pty Ltd
[2014] VCC 1977
•12 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03873
| TEDROS GODEFA YOSSEF | Plaintiff |
| v | |
| PACIFIC BRANDS HOLDINGS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2014 | |
DATE OF JUDGMENT: | 12 November 2014 | |
CASE MAY BE CITED AS: | Yossef v Pacific Brands Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1977 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the right shoulder and cervical spine – Chronic Pain Syndrome – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(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 (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr D Oldfield | Zaparas Lawyers |
| For the Defendant | Mr A Middleton | Thomsons Lawyers |
HER 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 during the course of his employment with the defendant from 2006 and in particular, on 12 February and 26 November 2008, 2 June and 11 August 2009 and up to and including 15 December 2009 (“the period of employment”).
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) of the Act.
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” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the spine.
5 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 “at least very considerable”, and “more than significant” or “marked”.
6 The plaintiff also brought an application pursuant to clause (c) for a severe mental impairment.
7 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] 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”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
8 Winneke P, in Mobilio,[3] 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: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Supra
9 A Chronic Pain Syndrome can result in 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) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
10 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.
11 The impairment of the body function must be permanent.
12 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.
13 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.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
18 The plaintiff relied upon two affidavits and gave viva voce evidence. 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
19 The plaintiff is presently aged forty-five, having been born in Ethiopia in November 1969. He migrated to Australia in 2001. He lives with his partner and four children.
20 Whilst in Ethiopia, the plaintiff completed Year 12. He learned English. He left that country in 1988 and moved to the Sudan until 2001, due to civil war. Whilst in the Sudan, he worked with the United Nations as a registrar of refugees and an interpreter.
21 In that role, the plaintiff translated from Ethiopian to English and filled out forms in English on behalf of refugees. He then worked for a logistics company in the Sudan for about three to four years. He wrote in English details of items that were being transported. He is able to read and write basic English, although he needs help with “big” words.
22 The plaintiff migrated to Australia in 2001. He then commenced a Certificate IV in Multimedia Studies with the aim of working in marketing. He did about eight months study but did not complete the course.
23 The course was conducted in English. The plaintiff did presentations and wrote in English. He has done no further English courses whilst in Australia.[7] The plaintiff reads books in his own language.[8]
[7]Transcript (“T”) 17
[8]T18
24 After this period of study, the plaintiff then had a number of jobs including working for a company that made furniture and another that produced car seats; sorting mail at Toll Logistics for about five years; and then picking and packing at National for about twelve months.
25 The plaintiff does not have any significant past medical history or any back related problems. He made no claim for compensation prior to the subject injury.
26 The plaintiff claims to have suffered injury throughout the period of employment, involving injury to his spine, psychological injury and chronic pain syndrome.
27 The plaintiff’s duties as a store worker with the defendant were often physically strenuous and repetitive and he was required to pick up pairs of shoes from the floor and then pack them into boxes. The work involved repetitive movements and constant bending, having to lift on average 500 to 600 pairs of shoes a day and carrying about 20 boxes a day (“the duties”).
28 The plaintiff agreed the boxes of shoes he was required to lift were light and of variable size.[9]
[9]T23
29 The plaintiff worked about eight hours a day, five days a week, earning about $800 per week gross in this role.
30 There were a number of episodes of injury during the period of employment, following which the plaintiff had physiotherapy and saw Dr Ong, the company doctor. He was given light modified duties for a number of weeks, dusting shelves and adjusting shoes on the shelves.
31 After injuring his back again on 11 August 2009, the plaintiff was put on light duties by Dr Ong with a lifting restriction of 7.5 kilograms.
32 The plaintiff stopped work on 16 December 2009 because he was finding it extremely difficult working, especially standing. His last job was picking clothes, scanning them and boxing them. This job was not as hard as his normal job. He has not looked for similar work since leaving the defendant because he has “been tried in the workplace” picking clothes and he could not do that job.[10]
[10]T24
33 In 2009, whilst still employed by the defendant, the plaintiff started a TAFE logistics management course at Compass but he was only able to do one year of the two-year course because of his pain. He had experience in that field working in the Sudan.[11]
[11]T32
34 At various times, the plaintiff was prescribed Voltaren and Panadeine Forte and he had physiotherapy. In November 2009, he attended Dr Cheasley, who referred him to Mr de la Harpe, orthopaedic surgeon, who did not feel surgery was required.
35 In February 2010, the plaintiff was referred to a neurosurgeon, Mr Maartens, who gave him similar advice.
36 As of March 2012, the plaintiff was seeing Dr Cheasley two to three times a month. He was taking Durotram, 300 milligrams; Mobic 7.5 milligrams, and Faverim tablets, 50 milligrams. He was also taking medication for constipation caused by his medication intake. He was seeing his treating psychiatrist, Dr Chau, once a month. He saw him a total four or five times.
37 In February 2012, the plaintiff commenced a pain management program at Westend Physio in Footscray as recommended by the Medical Panel. He attended twice a week for about two to three months.
38 As of March 2012, the plaintiff described pain in the lower back, spreading to the left buttock and thigh and sometimes the left leg had a throbbing sensation. He experienced a pins and needles pain sensation in his left foot and calf.
39 The plaintiff’s inability to work frustrated his intention of studying and working to contribute and assist his family financially.
40 The plaintiff’s sleep was affected and disturbed by pain at night. He was not able to sleep for more than a few hours. His pain was constantly present and worsened as time went on. Coughing and sneezing caused back and left leg pain. Urinating also caused back pain. The plaintiff continued to suffer from constipation.
41 The plaintiff was able to drive locally and walk his children three blocks to school but doing so caused constant pain. He attended church weekly but was no longer actively involved in other church community activities. He had lost enjoyment of many things and felt he had lost everything now that he could not work.
42 The plaintiff had little sex drive since his injury and sex was now both uncomfortable and painful.
43 The plaintiff could not help his partner with many household duties and these added responsibilities put stress on their relationship.
44 As at 29 July 2013, when the plaintiff swore his second affidavit, he continued to suffer pain, discomfort and restriction of movement in his back, going down his legs. He also continued to suffer stress, anxiety and depression as a result of his injuries.
45 Dr Chau prescribed anti-depressant medication for depression; however, having received a second opinion from Dr Thomas, the plaintiff stopped taking that medication but he continued to see Dr Chau until early 2014.
46 Dr Chau provided the plaintiff with medication and counselling which gave him strength. The plaintiff stopped seeing him as it was too far to travel, but he agreed Dr Chau’s rooms were next door to Dr Cheasley’s practice, which he continued to attend monthly.[12]
[12]T22
47 The plaintiff continued under the care of his general practitioner, Dr Cheasley, whom he saw on a monthly basis and continued to give him certificates.
48 The plaintiff continued to take pain-relief medication, Durotram, an anti-depressant, Fluvoxamine and sleeping tablets on a daily basis to alleviate his pain and discomfort.
49 Mr de la Harpe suggested physiotherapy with core strengthening exercises would help the plaintiff’s condition. The plaintiff saw him on three occasions.
50 The plaintiff has had physiotherapy from a number of practitioners since suffering injury.[13] That treatment aggravated the left side of his back but gave him some relief on the right side. He last had physiotherapy in 2013 as part of a Medicare program.[14] He ceased physiotherapy because it was no longer funded and the treatment aggravated his condition somewhat.[15]
[13]T19
[14]T21
[15]T31
51 In 2012, Dr Thomas assessed the plaintiff for a multi-disciplinary pain management program; however, the plaintiff was told he was then unsuitable and Dr Thomas thought he could be considered for further review for the program when he was able to walk ten minutes, three times a day.
52 The plaintiff was finding it difficult to undertake the level of walking suggested by Dr Thomas. If he over exerted himself, he suffered increased pain and was reminded of his limitations. He confirmed he tried walking for a couple of days but stopped because it aggravated his pain.[16] The plaintiff had trouble standing or sitting for more than short periods of time.
[16]T21
53 The plaintiff continued to suffer from sleep disturbance. He struggled to get comfortable in bed and often he was not able to sleep until the early hours of the morning due to his back and leg pain. These issues had adversely affected his relationship with his partner and children and he was often short tempered and lashed out at them.
54 The plaintiff remained anxious and depressed about his inability to work and provide for his family. Due to his back and leg injury, stress and anxiety, he had been unable to return to any work. He was afraid as to what the future held for him and his family. He had limited English and due to his injuries, he was fearful of future work prospects given his education and work experience.
55 The plaintiff swore his final affidavit on 9 September 2014.
56 The plaintiff mostly drives his automatic car locally. His low back pain increases even after driving short distances, such as five minutes to take the children to school. A lot of times, he finds it difficult getting in and out of the car.
57 When the plaintiff goes to church every Sunday, he tries to avoid kneeling as doing so aggravates his low back pain. Whilst he gets increased back pain from sitting and standing at church, he still goes because his faith is important to him.
58 The plaintiff finds it very difficult helping his partner with many duties at home. He tries but he gets increased lower back and left leg pain.
59 Often the plaintiff finds it difficult to sleep until the early hours of the morning due to this back and left leg pain.
60 The plaintiff is often short tempered and irritable and that affects his relationship with his partner and children. He feels like he does not contribute to the family and he is sad he cannot provide for them.
61 The plaintiff received weekly payments until March 2014.
62 The plaintiff gets constant low back pain on the left side in the middle of his lower back going down the left buttock, hamstring and calf. Sometimes he gets pain and numbness in his right leg. He gets frequent pins and needles in his left foot and calf. His low back pain and left leg pain tends to be sharp.
63 The plaintiff gets an electric type pain going into his brain which he described to a number of doctors which is separate from the pain in his back.[17]
[17]T25
64 The plaintiff’s symptoms are made worse by prolonged sitting, standing, walking, bending, twisting and heavy lifting. His back and left leg symptoms are increased after sitting or standing for short periods. He now tends to limp a lot because of his lower back and left leg pain.
65 The plaintiff continues to suffer stress, anxiety and depression. He feels down and depressed and he finds it difficult to sleep because of his severe pain. He is irritable and also frustrated and stays home a lot. He has low self-confidence and self-esteem and feels worthless and helpless.
66 The plaintiff’s general practitioner has referred him to Dr Assadi, psychiatrist, whom the plaintiff saw once in early September 2014. There are no arrangements yet for further review.[18]
[18]T31
67 The plaintiff’s general practitioner, whom he sees about every two to three months, continues to give him certificates and prescribes pain medication but the plaintiff is unable to afford it.
68 In about March 2014, the insurer stopped paying for medical treatment, including medication. As the plaintiff cannot afford it, things have become very difficult as without medication, his pain levels are much worse.
69 The plaintiff continues to suffer from disturbed sleep because of his back and left leg pain. He has stopped taking sleeping tablets as funding has ceased. Previously sleeping tablets had helped. He explained he had a better sleep with sleeping tablets but could not really explain what difference they made, although it was significant.[19] If he does not take them, his sleep pattern is not good and he is awake all night.
[19]T29
70 In re-examination, the plaintiff explained sometimes he is awake all night. He presently takes three lots of Tramadol; 150 milligrams in the morning; 150 at night, and then 50 to help him sleep.[20] He has not had any other treatment this year.
[20]T30
71 Pre-injury, the plaintiff used to be sociable and enjoyed catching up with church friends and going out for coffee. Now he catches up with friends a lot less because of his back pain.
72 The plaintiff has difficulty getting dressed, putting on his socks and pants and sometimes his jacket and his children mostly help him. He finds it difficult going to the toilet because of lower back pain.
73 Before the injury, the plaintiff used to do the household shopping. Now he drives his children and generally they carry the shopping. Since his injury, the plaintiff forgets things and has less concentration because of his pain. Previously, he jogged once a week for about half an hour locally but he now finds it difficult just trying to go for a run because of his lower back pain.
74 Before injury, the plaintiff used to enjoy playing with his children, hugging them and picking them up. He now finds that difficult and is upset that he misses doing those sorts of things with his children.
75 The plaintiff cannot remember on examination being asked how far he could move, nor could he remember a time refusing to take off items of his clothing when examined. He agreed he had been disgruntled with Dr Barton and had organised for a friend to write to him in English about his treatment on examination.[21] Dr Barton was not treating the plaintiff well and he had a “frowning face.”[22]
[21]T26
[22]T28
The Plaintiff’s medical evidence
Investigations
76 Dr Giannakakis organised an MRI scan of the plaintiff’s lumbar spine in April 2008.
77 It was reported there were mild facet arthropathy changes at L4‑5 and partial disc desiccation at L2‑3. There was no disc protrusion or neural compressive lesion detected.
78 A further MRI scan was organised on 7 October 2009.
79 It was reported there was degenerative desiccation of the L2‑3 disc with minimal bulging. At L4‑5, there appeared to be a small left posterolateral disc protrusion with some narrowing of the left L5 lateral recess, resulting in some minimal distortion to the origin of the left L5 nerve root sheath.
80 An MRI scan of the lumbar spine was carried out at Dr Cheasley’s request on 31 December 2009. It was reported there was minimal intervertebral disc degenerative disease, with no significant central canal or exit foraminal stenosis seen. At L5‑S1, it was noted the disc could potentially irritate the exiting S1 nerve roots, although they were not clearly compressed or displaced by the disc.
81 A further MRI scan was organised on 17 February 2010.
82 It was reported there was transitional lumbosacral anatomy with partial sacralisation of the right half of L5. There was minor retrolisthesis and disc degeneration at L2‑3 with generalised disc bulge, resulting in minor bilateral bony foraminal stenosis. There was generalised disc bulge demonstrated at L4‑5, resulting in borderline subarticular stenosis for the traversing left L5 nerve, and minor bilateral bony foraminal stenosis. No definite focal disc protrusion was seen.
83 There was an MRI scan of the lumbar spine on 29 August 2013. It was reported the S1 vertebra was in transition. L3‑4 disc degeneration was noted, with a mild disc bulge not causing any significant nerve root impingement. No other significant abnormality was identified.
The Plaintiff’s treaters
84 Dr Cheasley has been the plaintiff’s general practitioner since November 2009.
85 In his report of August 2012, Dr Cheasley stated that the plaintiff’s work injury had caused a Chronic Pain Syndrome and the disability associated with that had caused Major Depression.
86 Dr Cheasley diagnosed lower back pain and leg pain and an L2-3 and L4-5 disc prolapse from the work injury which had caused ongoing and worsening lower back pain and bilateral leg pain, weakness and numbness.
87 The plaintiff had also become progressively depressed.
88 In June 2011, Dr Cheasley diagnosed Major Depression secondary to the plaintiff’s chronic back pain and referred the plaintiff to Dr Chau, a psychiatrist, who that month also diagnosed Major Depression.
89 Dr Cheasley noted the plaintiff had seen Dr Thomas, who believed he had a Chronic Pain Syndrome which was psychologically based.
90 Dr Cheasley thought the plaintiff’s lower back injury was caused by his work duties, picking stock items from the floor and packing them. The back injury had recurred and flared on three separate occasions after tasks involving picking and packing from low levels and off the floor at work.
91 In Dr Cheasley’s view, the plaintiff’s employment was the sole and primary cause for the injury. The chronic pain and very considerable disability associated with the lower back injury had caused depression and a Chronic Pain Syndrome so therefore the plaintiff’s work was also the sole cause of his depression.
92 Dr Cheasley thought the plaintiff’s employment was the sole contributing factor to his condition. The injury had caused a Chronic Pain Syndrome and the disability associated with that had caused Major Depression so that his employment was also the sole contributing factor to that condition.
93 As of his July 2014 report, Dr Cheasley thought the plaintiff had no capacity for pre-injury employment or alternate employment.
94 The plaintiff then required ongoing anti-inflammatories, including Mobic, 7.5 milligrams; analgesia, Durotram, 100 milligrams; an antidepressant and sleeping tablets. He needed physiotherapy, including hydrotherapy and core strengthening exercises; general practitioner consultations; psychiatric treatment and ongoing review; review in a pain management or rehabilitation scenario; neurological review if there was worsening of symptoms, and psychological review and counselling.
95 Dr Cheasley thought the prognosis was poor. He considered the plaintiff was likely to suffer ongoing pain and discomfort and psychological depression. In his view, the plaintiff was not able to work and a combination of medications, special review and physiotherapy had been unsuccessful in treating his injury. He believed the plaintiff’s inability to work in any capacity was likely to continue indefinitely.
96 Dr Rainsford from Western Region Health Centre wrote to Dr Ong in August 2009 thanking him for seeing the plaintiff for ongoing WorkCover review.
97 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on referral from Dr Cheasley in February 2010.
98 On examination, the plaintiff walked with a forward flexed attitude and a forward flexed stance. There was no neurological abnormality. His MRI scan reviewed multilevel degenerative change and there was no neural compression.
99 Mr de la Harpe did not feel there was any surgery required for the plaintiff and thought he should return for some ongoing physiotherapy, including core stability exercises.
100 In Mr de la Harpe’s view, the plaintiff’s condition was consistent with the stated cause. Although there was degenerative change in his lumbar spine which could have been present at the time of his repetitive bending and lifting, Mr de la Harpe thought it would seem the plaintiff’s manual duties had aggravated the pre-existing degenerative changes to become symptomatic when they were previously not symptomatic.
101 Mr de la Harpe diagnosed degenerative back pain without neural compression or radiculopathy.
102 Mr de la Harpe did not think the plaintiff was fit to return to his pre-injury job or any manual duties. He considered there may be fitness for alternative duties if they were purely sedentary.
103 Mr de la Harpe thought there was a necessity for further treatment in the form of conservative management such as physiotherapy, self-directed exercises and hydrotherapy. His prognosis for the plaintiff was poor for a return to manual duties.
104 Mr de la Harpe reviewed the plaintiff in December 2012. The plaintiff then had a slow guarded gait and a restricted range of lumbar movement. He walked with a forward flexed position.
105 Examination findings were a restricted range of movement in the lumbar spine but no neurological abnormality.
106 Overall, the plaintiff presented as being totally incapacitated and Mr de la Harpe suggested he undergo a rehabilitation program as soon as practicable.
107 Mr de la Harpe thought the injury was an aggravation of pre-existing degenerative lumbar condition; the aetiology of the injury was related to repetitive manual labour.
108 Mr de la Harpe recommended conservative management and no surgery and he also thought the plaintiff should commence a rehabilitation program.
109 Mr de la Harpe thought the employment was materially responsible for the plaintiff’s condition. He did not consider the plaintiff had a capacity for unrestricted manual or pre-injury employment as a consequence of his work-related physical injuries and thought that those injuries would preclude him from participating in social, domestic, recreational and employment activities.
110 As of 2012, he thought it likely the plaintiff would not be fit to return to manual duties in the foreseeable future and as such, it was likely to be a permanent disability. The prognosis was quite poor.
111 On last review in February 2014, the plaintiff had a similar gait and very limited movement of the lumbar spine with no neurological abnormality in the lower limbs. Mr de la Harpe confirmed his views as to the plaintiff’s employment capacity and prognosis.
112 Dr Cheasley referred the plaintiff to Dr Thomas, rehabilitation specialist, who saw him in May 2012.
113 On examination, the plaintiff walked with a waddling gait and stood with a flexed posture. There was reduced sensation to the left of the lower back to light brush and to sharp toothpick; spinal movements were negligible, and the axial compression and pelvic rotation both reproduced back pain. The plaintiff reported non-specific, non-dermatomal sensory loss to the left leg and diffuse power loss bilaterally.
114 Dr Thomas noted the MRI scan showed degenerative changes with a small disc bulge on the left at L5 but no neurological compromise. He diagnosed a complex pain problem and noted there seemed to be significant non-organic factors contributing. It was hard not to conclude that most of the problem was of a psychological variety.
115 Dr Thomas noted there were some soft signs which suggested there may have been a neuropathic component. He suggested medication at nighttime to see what impact that had on the plaintiff’s pain and sleep. He thought it reasonable to refer the plaintiff to the Dorset Rehabilitation Centre, but unless his condition was improved, there was little prospect for him to be treated. He considered the plaintiff had no work capacity, and arranged for a further review.
116 When seen in June 2012, the plaintiff reported side effects with the medication. When seen on 27 August 2012, the plaintiff was not accepted into the rehabilitation program. It was noted that his disability was excessive.
117 Dr Thomas asked the plaintiff to commence a walking program and, if he was able to achieve the desired level, to return and see him.
118 Dr Thomas felt the plaintiff was suffering from a Chronic Pain Syndrome which was predominantly psychologically based. He noted the plaintiff had diffuse widespread tenderness with no focality. His disability was excessive and there was no progress being made for him.
119 Dr Thomas thought the only possible diagnosis was one of Chronic Pain Syndrome, psychologically based. He accepted the onset of that condition occurred in the context of a work injury and work remained a material contributor to the plaintiff’s current condition.
120 Dr Thomas thought the plaintiff did not have a current work capacity due to the nature of his medical condition and more likely than not, that would be indefinite.
121 Dr Roger Chau, consultant psychiatrist, saw the plaintiff on referral from Dr Cheasley in June 2011. He saw the plaintiff on five occasions between June 2011 and July 2012 and diagnosed a Chronic Pain Disorder.
122 In September 2012, Dr Chau noted the physical injury was very minor and that Chronic Pain Disorder did not result from, nor was it materially contributed to by, the injury. At that stage, he thought the plaintiff’s Chronic Pain Disorder was due to the realisation of shattered dreams by his back pain. He had come to Australia with a good and positive attitude to study, to work, to contribute to this country and his family and thinking this country was a fair and civil society which treats human rights seriously. He feels that as a result of not being able to work, his whole notion has been shattered and the future looks bleak.
123 Dr Chau then thought the plaintiff had no current capacity for pre-injury work. As for suitable duties in any job offer with reference to any work restrictions, the duties should be realistic considering the plaintiff’s age, education, physical ability and life experiences. The duties should also have a high degree of increasing satisfaction and security. He personally did not know whether those kinds of duties existed. At that time, he thought it appeared the plaintiff would be unable to work indefinitely.
124 Although the plaintiff had a medical condition – ie Chronic Pain Disorder – there was no medical treatment to resolve that condition.
125 Having last seen the plaintiff in July 2013, Dr Chau basically had nothing more to add to his existing opinion. He noted the plaintiff felt the treatment he received from society was very bad. He was financially denied his medication, the physiotherapy sessions were unhelpful, and he felt no human being should be subjected to what he is subjected to.
126 The plaintiff had physiotherapy at Life Care Essendon from 27 May to 3 June 2010.
127 The plaintiff was referred to In Stride Health Clinic by Dr Cheasley in October 2012 for assessment and treatment for physiotherapy, initially being assessed in November 2012.
128 It was noted, with physiotherapy management, there had been small improvements in upper limb range of movement but the plaintiff still had significant restrictions and was not able to perform activities of daily living at home.
129 With his current level of function, Ms Williamson, physiotherapist, thought as of July 2012, the plaintiff would be unable to return to full-time employment. She considered he would benefit ideally from a multidisciplinary pain management program.
130 The plaintiff saw Max Neufeld, physiotherapist at West End Physio, on 10 February and 24 July 2012.
131 Mr Neufeld thought the plaintiff continued to suffer a Chronic Pain Syndrome directly related to the development of low back pain at work. He noted it was unfortunate the plaintiff had developed this complicated chronic pain condition which was ongoing and continued to relate to his original employment. He thought the best chance for an improvement was for the plaintiff to be accepted into a multidisciplinary pain management clinic, which would hopefully occur in the coming months.
Medico-legal evidence
132 Dr Blombery, consultant physician, vascular disease, examined the plaintiff on 19 April 2013.
133 On examination, the interpreter had to take off the plaintiff’s shirt and jacket, and the plaintiff was not able to climb onto the couch. He was exquisitely tender, and virtually no lumbosacral movement was possible. He would not cooperate, so it was not possible to test deep tendon reflexes.
134 Dr Blombery thought the injury resulted in previously asymptomatic degenerative changes in the lumbar spine becoming symptomatic as a consequence of work activities.
135 Dr Blombery considered the plaintiff also had a pain sensitisation phenomenon present where there was sensitisation of pain nerve pathways both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful.
136 Dr Blombery thought the plaintiff was quite depressed, and that condition played a contributing role in tending to perpetuate his pain experience.
137 Dr Blombery considered the plaintiff’s management should be essentially that of a patient with chronic pain, with multidisciplinary therapy.
138 Dr Blombery considered the prognosis for recovery was poor, and there would be no significant change in the plaintiff’s level of disability in the foreseeable future.
139 In Dr Blombery’s view, there were injuries to the discs, facet joints, and other ligaments of the lumbar spine, resulting in previously asymptomatic changes becoming symptomatic, and complicated by a Pain Syndrome. The aetiology of the injuries was work. Employment was a significant contributing factor.
140 Dr Blombery thought the plaintiff had no capacity for his pre-injury employment either now or in the future because of the work-related physical injuries.
141 On re‑examination in January 2014, Dr Blombery noted the plaintiff walked with an almost waddling gait which was quite bizarre. He was very tender over the lumbar spine. There was a lot of paravertebral muscle spasm, and very limited flexion.
142 Dr Blombery thought the plaintiff continued to have features of a Pain Syndrome affecting his spine, with previously asymptomatic degenerative changes being rendered symptomatic. There was also a non-specific Pain Syndrome where there was sensitisation of the pain nerve pathways.
143 Dr Blombery thought there were significant psychological factors playing a role to perpetuate the plaintiff’s pain, but they were not under his conscious control. Having reviewed the radiology, he thought there was certainly no reason for surgery, and only relatively minor degenerative changes, which had been enhanced by the process of pain pathway sensitisation.
144 Dr Blombery diagnosed soft tissue injuries to the low back with a superimposed Pain Syndrome. He confirmed his earlier views that the plaintiff had no capacity for pre-injury employment. He was not asked to comment on alternative employment.
145 In a supplementary report, Dr Blombery explained the plaintiff’s low back pain was organic in nature and caused by the previously asymptomatic degenerative changes, including disc protrusions and facet joint arthropathy being rendered symptomatic by his work. He also felt the plaintiff had a component of a non-specific Pain Syndrome present that was also organic in nature; therefore, the plaintiff had an organic basis to his low back pain.
146 Associate Professor Bittar, neurosurgeon, saw the plaintiff on 30 July 2014 with the assistance of an interpreter.
147 On examination, the plaintiff walked with a slow, shuffling and antalgic gait. He found it very difficult to get on and off the couch. There was a severe restriction of flexion and extension and exquisite tenderness of the lumbar spine. Very light pressure over the vertex of the head also resulted in severe pain in the back and leg. Bilateral straight leg raising was limited to 45 degrees and there was no evidence of radiculopathy.
148 Professor Bittar thought the plaintiff suffered from aggravation of lumbar spondylosis. While the plaintiff had an underlying physical injury to his lower back, Professor Bittar thought he developed significant psychological overlay which on the basis of review of his medical file and medical reports, most likely comprised depression.
149 Professor Bittar thought the plaintiff’s employment had been a significant contributing factor to the development of his lower back condition which had evolved into a significant Chronic Pain Syndrome. He thought the plaintiff’s prognosis was poor and that he required ongoing analgesic medication and regular psychiatric or psychological review. In his view, the plaintiff’s condition was consistent with the stated cause.
150 Putting aside any mental or behavioural aspects which might be contributing to the perception of symptoms and looking at the organic effects of the back injury only, Professor Bittar thought that had rendered the plaintiff incapacitated for his pre-injury work. If mental factors were ignored, it was likely the plaintiff could undertake light physical work, although Professor Bittar noted his age, education, training and skills, as well as very limited English would make it extremely unlikely the plaintiff would be able to procure such employment.
151 Leaving aside mental factors and looking at the organic effects of the lower back injury only, Professor Bittar thought that the plaintiff’s pain restriction, disability and capacity were derived partly from the physical or organic injury to his lower back.
152 It was difficult, in his view, to accurately apportion the contribution of the plaintiff’s physical injury versus his psychological condition to his pain, restriction, disability and capacity. Leaving aside the mental aspect, Professor Bittar thought the plaintiff would continue to suffer consequences and incapacities of the physical lower back injury for the foreseeable future.
153 Dr Slesenger, specialist occupational physician, examined the plaintiff in July 2014 with the assistance of an interpreter.
154 The plaintiff then had severe difficulty getting in and out of the chair and removing his shoes. He walked with a wide shuffling gait which was symmetrical. He was unable to climb onto the bed or remove his trousers. There was severe tenderness over the lumbosacral spine and virtually no movement. Axial loading resulted in severe lower back pain.
155 There was no wasting of the lower limb. There was 100 per cent sensory loss over the left lower leg and 60 to 70 per cent sensory loss over the right.
156 Dr Slesenger thought the plaintiff presented a difficult causal scenario. In his view, there was a potential causal link between the occupational demands and the initial impairment. He noted the MRI scan findings showed evidence of minor degenerative disc disease.
157 On balance, Dr Slesenger thought it likely the plaintiff sustained non-specific low back pain, probably mechanical in origin, due to the occupational demands. He had subsequently developed a Chronic Pain Disorder. Causation appeared to be primarily psychogenic rather than physical. He diagnosed a Chronic Pain Disorder with significant psychological component.
158 Noting inconsistent examination findings, Dr Slesenger was nevertheless of the view the plaintiff could not return to his pre-injury duties, as it was likely they would re aggravate his underlying medical condition.
159 With regard to alternate duties, if one accepted the plaintiff’s impairment was due to psychogenic elements rather than a physical impairment, then based on the physical element alone, the plaintiff would be at risk of aggravating his pre-existing back injury. He was deconditioned, and had been advised he was not suitable for a rehabilitation program, rendering him at further risk of aggravating his symptoms.
160 Dr Slesenger thought the plaintiff would have the capacity to return to work with no lifting over 5 kilograms; no repetitive bending or twisting; sit and stand as required; working three days a week, five hours a day.
161 Dr Slesenger was concerned about the plaintiff’s ability to retrain, noting he had been job detached for the last four and a half years and he had no transferable skills or qualifications. The plaintiff would therefore have to engage in retraining program without the appropriate language skills and Dr Slesenger did not believe he would have the capacity to complete a retraining course.
162 Dr Slesenger was also concerned as to the plaintiff’s capacity to attend work in a reliable and predictable manner and, on balance, thought it was likely he would not be able to undertake sustained suitable employment due to periodic exacerbations of his symptoms.
163 If one accepted the current impairment was predominantly psychologically based, Dr Slesenger thought it unlikely the plaintiff would be able to return to work, noting he described significant pain with poor function and limited capacity for social and domestic activities. Those symptoms had been persistent and long lasting and it was highly unlikely they would change.
164 Dr Slesenger noted the plaintiff had a strong belief in the physical basis of his symptoms; however, there were other issues relating to the management and handling of the claim that appeared to be further aggravating his impairment. He thought the plaintiff presented with a strong sense of injustice and he did not anticipate significant changes in the plaintiff’s attitudes and beliefs in the near or even medium term.
165 Dr Helen Sutcliffe, occupational physician, first examined the plaintiff in January 2011 and more recently in February 2013.
166 On the first examination, there was no interpreter. Dr Sutcliffe noted the plaintiff was an articulate man of average stature.
167 Dr Sutcliffe then thought the plaintiff had very substantial persisting pain and findings consistent with left L5 and S1 radiculopathy with some involvement of the right. She believed that he had work-related disc derangement, probably at L4-5 but possibly L5-S1, and also resulting significant back and leg pain. She thought he had weakness consistent with disuse related to pain in the left leg and some findings consistent with radiculopathy.
168 Dr Sutcliffe considered the plaintiff had no capacity for pre-injury duties permanently, and very substantial loss of capacity for activities of daily living.
169 Dr Sutcliffe also noted the unreasonable actions of the defendant had resulted in great stress to the plaintiff and he had developed an Adjustment Disorder with depression as a result. She believed he required referral to a pain physician for assessment and treatment with appropriate injections, and also medication.
170 The plaintiff was re-examined in October 2012 with the assistance of an interpreter. The plaintiff then had a slow wide-based antalgic gait. There were complaints of pain with all movement and there were minor outcries of pain during the interview.
171 Dr Sutcliffe believed the plaintiff continued with the effects of discogenic pain related to disc derangement in the course of work with disc derangement at L4-5 and borderline compression of the left L5 nerve root. She thought he had some findings consistent with neuropathic component to the pain in addition to the nociceptive pain.
172 Further, Dr Sutcliffe believed the plaintiff had sustained a significant Psychiatric Disorder with Depression and Anxiety which had resulted in adverse impact on his capacity to cope with the intensity of pain. On a physical basis, she thought the plaintiff had no capacity for employment, taking into account s5 factors.
173 Dr Sutcliffe believed the plaintiff required further psychiatric treatment for management of his persisting condition, and he required the assistance of a pain physician.
174 Dr Sutcliffe thought the injury of disc derangement and discogenic pain was related to work and continued to be so, and that the onset of Psychiatric Disorder was also a result of the injury, persisting pain and disability and loss of position in life.
175 Dr Sutcliffe considered the plaintiff had no capacity to do his pre-injury work or full-time, unrestricted manual work as a result of his physical injury and there continued to be a restriction of the capacity for activities of daily living and that would be permanent. She thought the prognosis was generally poor.
176 The plaintiff was examined by Mr Myers, vascular surgeon, in February 2011 and October 2012.
177 On the first examination, the plaintiff was not prepared to take off his trousers to be examined as it caused too much pain. He rolled on and off the couch with extreme difficulty. Mr Myers was not able to elicit any reflexes in the lower extremities and there was approximately 25 per cent of the expected range of movement of the low back because of apparent pain.
178 Mr Myers considered the plaintiff sustained injury to his back and a psychiatric psychological condition in the course of his employment. He did not think the plaintiff had a capacity for pre-injury employment. He was of the view the plaintiff required ongoing medication and would benefit from regular physiotherapy and referral to pain management, and also taking regular daily medication.
179 On re-examination in October 2012, the plaintiff was accompanied by an interpreter. Mr Myers reported no change at all in the plaintiff’s condition.
180 On examination, the plaintiff waddled into the consulting room and shuffled to the examination room. Again, it was impossible to examine him adequately. He was not able to remove his trousers and needed help to take off his shoes. He needed assistance to lift his legs onto the couch and it was impossible to do straight leg raising because of rigidity. It was also impossible to test for reflexes.
181 Mr Myers diagnosed aggravation of pre-existing degenerative intervertebral disc disease and spondylitis of the lumbar spine and a severe Chronic Pain Syndrome, resulting from work activities. He noted it was impossible to examine the plaintiff and that further treatment would be conservative with medication and physiotherapy.
182 Mr Myers thought the plaintiff had no capacity for any form of unrestricted manual or pre-injury employment and social, domestic, recreational and employment activities would be severely restricted for the long term. There was no likelihood of any improvement and that the plaintiff clearly required psychiatric treatment.
183 The plaintiff was examined by Dr Mutton, consultant occupational physician, in April 2013. An interpreter was not present.
184 Dr Mutton noted the plaintiff presented as an invalid. He had flattened lumbar lordosis and had quite pronounced left paravertebral muscle spasm. There was negligible thoracolumbar range of movement.
185 Dr Mutton thought, on the basis of the plaintiff’s presentation, he had no current capacity for work. He noted the Medical Panel Opinion and that there had been no significant improvement in the plaintiff’s condition since that assessment on 6 January 2012.
186 Dr Mutton agreed with the Panel that the plaintiff suffered a low back injury of soft tissue nature. The condition had not resolved and he suffered from severe chronic pain.
187 Dr Mutton considered employment still remained a cause and that the plaintiff had no current capacity for any form of work, due to the severity of his pain and limited thoracolumbar function. He thought there were some psychological issues.
188 Dr Mutton noted that current treatment was largely one of pain relief with only occasional interventions from the physiotherapist and psychiatrist and that was appropriate. However, the plaintiff was not self-managing and he would require ongoing pain relief into the foreseeable future.
189 Dr Paoletti, psychiatrist, examined the plaintiff in December 2010 with the assistance of an interpreter. On examination, the plaintiff revealed depressive ideation. He was very focussed on the process at work and on current pain and incapacity. He was angry at his employer and the doctor but there was no evidence of delusional thinking. Concentration was reasonably good and there were no apparent deficits in memory and orientation. He had a reasonable insight into his illness.
190 From a psychiatric point of view, Dr Paoletti thought the plaintiff suffered from Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood for which employment would have been a significant contributing factor, partly because of his physical conditions and because of the perception of how his case was managed in terms of his return to work. He thought some sessions of psychological treatment may assist and failing that, a trial of a course of antidepressants may be indicated.
191 Dr Paoletti concluded, whilst in the long term the plaintiff’s work capacity would be dependent upon his physical state, at present, he had no work capacity from a psychiatric perspective. If his mental state improved with the suggested psychological treatment, that could be dovetailed into a rehabilitative approach. A return to work without proper preparation would create a situation of experiencing another failure in return to work and would further seal an adverse prognosis.
192 Dr Paoletti thought a nurturing approach was needed to repair the plaintiff’s perception of being pushed to work in unsuitable duties. He thought the prognosis was guarded, especially if no active treatment of his psychological state was instituted.
193 The plaintiff was examined by Dr Weissman, psychiatrist, in March 2013 and more recently in July 2014. An interpreter was not present on either occasion
194 On the first examination, the plaintiff appeared very pain focussed and somatically focussed. His affect appeared moderately depressed and flat and his thought stream was slightly slowed, although there was no formal thought disorder. The content of his thinking revealed moderate mixed reactive depression and anxiety symptoms, themes and features. There appeared to be mild slowing and impairment of attention, concentration, short-term memory and speed of information process.
195 The plaintiff’s insight and judgment were very difficult to gauge and assess, and he appeared to have markedly elevated health concerns with pain and somatic focus and preoccupation.
196 Dr Weissman thought this was a complex and complicated case and one that may be difficult to understand. Furthermore, there were probably cultural factors impacting upon it outside his area of expertise.
197 It seemed to Dr Weissman that the major group of symptoms and signs related to the plaintiff’s marked, if not severe, pain and somatic focus and preoccupation. As a psychiatrist, he did not use the term “Chronic Pain Syndrome”. Instead, he used a diagnosis condition of Chronic Pain Disorder laid in DSM-IV.
198 Whilst it was outside his expertise, on balance, Dr Weissman thought there appeared to be a discrepancy, disparity or mismatch between the plaintiff’s organic pathology on the one hand and the nature, severity extent and magnitude of his reported subjective symptoms on the other. On balance, it seemed to Dr Weissman the plaintiff had sustained and developed a severe Chronic Pain Disorder associated with psychological factors, and general medical condition.
199 The plaintiff also seemed to be suffering from and reporting moderate mixed reactive depressive and anxiety symptoms and features as a consequence of or secondary to his reported pain, limitations and restrictions, changes and losses to his lifestyle and functioning.
200 Diagnostically, Dr Weissman thought the plaintiff seemed to have sustained and developed a Chronic Major Depressive Disorder in this regard. He believed the Chronic Pain Disorder was more important and substantial than the Chronic Major Depressive Disorder. He thought the psychiatric symptoms and conditions had stabilised.
201 Dr Weissman believed the plaintiff should continue to see his general practitioner for supportive therapy and continue to see his psychiatrist every six to eight weeks. He should also continue to take an antidepressant, perhaps increasing the dose.
202 Dr Weissman, while noting it was outside his expertise, thought it was likely there was some overlap between the additional diagnosis of a significant Chronic Pain Disorder with the physical or surgical conditions or injury.
203 Taking into account the diagnosis and symptoms, it seemed to Dr Weissman the plaintiff would not be able to do his pre-injury work or any other full-time work. Theoretically and hypothetically, the plaintiff may have a partial capacity for so called ‘suitable duties’ but Dr Weissman doubted that and was not absolutely convinced about it. Further, one needed to take into account s5 factors. However, when one considered the plaintiff’s potential work capacity in the real world, considering his current circumstances and situation as a whole, it seemed to him the chances of obtaining suitable employment on the open market were fairly remote.
204 It seemed logical to suggest that the conditions were still employment related. Dr Weissman noted there seemed to have been a moderate to moderately severe decline in deterioration in the plaintiff’s quality of life and level of function.
205 On balance, on purely psychiatric grounds, Dr Weissman thought the plaintiff would be totally incapacitated for all work and there would need to be a very significant and substantial shift and change and improvement in his psychiatric state before one could consider even partial capacity. He thought the psychiatric prognosis was relatively poor, negative and unfavourable, and that ongoing treatment would not substantially improve the condition but may help control the worst of his symptoms and prevent any deterioration.
206 On re-examination, the plaintiff told Dr Weissman of the change or deterioration in his mental state since coming off the antidepressant when funding was ceased in March of 2014.
207 Once again, the plaintiff appeared to be very pain and injury focussed and there were other similar findings on mental status examination.
208 Dr Weissman thought the main diagnosis was still that of a severe Chronic Pain Disorder associated with psychological factors and a general medical condition. He thought the plaintiff was still suffering from moderate mixed reactive depressive and anxiety symptoms and he still seemed to be moderately depressed, flat, subdued, restricted in range, dispirited, demoralised and despondent. However, on re-examination, Dr Weissman was less struck by the nature, severity and extent of the plaintiff’s depression.
209 Dr Weissman thought the plaintiff was either suffering from a chronic Major Depressive Disorder with Anxiety of mild to moderate intensity or severity or a moderate Chronic Adjustment Disorder with Depressed and Anxious Mood. That reinforced the fact that the plaintiff’s Chronic Pain Disorder was more significant than his depressive disorder. His condition had stabilised.
210 After careful consideration, and on balance, Dr Weissman believed that when one considered the plaintiff’s severe Chronic Pain Disorder, his depressive disorder syndrome and the definition of suitable employment, he was more likely to be totally incapacitated for all work (pre-injury duties, suitable duties or alternate duties) than having a partial capacity for suitable duties.
211 Again, the plaintiff continued to suffer from a severe Chronic Pain Disorder but Dr Weissman was less struck by the nature, severity and extent of his depressive syndrome disorder during the interview. He thought the plaintiff required general practitioner assistance, psychiatric treatment, or counselling every three to four weeks for twelve months, followed by review and continuing to take antidepressants.
212 Dr Weissman thought the overall psychiatric prognosis was likely to be relatively poor, negative and unfavourable.
213 Whilst not being critical, Dr Weissman noted it seemed the plaintiff had adapted, adjusted and coped with the consequences of his work injury in a relatively poor, negative, unfavourable and dysfunctional fashion. He was now also preoccupied with alleged betrayal by his former solicitors and with the lack of justice for him under the Australian system.
214 Dr Kornan, psychiatrist, examined the plaintiff in July 2014 with the assistance of an interpreter.
215 On examination, there appeared to be significant subjective distress. The plaintiff appeared very tense and depressed and appeared to have significant problems with self-confidence and self-esteem. There were no psychotic features, delusions or hallucinations.
216 Dr Kornan thought the plaintiff’s psychiatric ill health condition was due to his employment injuries and their after effects. He diagnosed a Major Depressive Disorder, Adjustment Disorder with Anxiety, including problems with confidence levels and ongoing irritability and indications of a Chronic Pain Disorder associated with psychological factors. He thought the plaintiff’s ongoing psychiatric condition was noticeable and of chronic moderate intensity to moderately severe in degree.
217 Taking the psychiatric viewpoint on its own, Dr Kornan considered the plaintiff’s psychiatric state now prevented him from working despite his psychiatric injury having as its genesis the physical injuries. Dr Kornan thought the psychiatric ill health condition would then prevent the plaintiff from working. He considered the ongoing pain and associated issues had been the major contributing factors to the plaintiff’s psychiatric ill health condition.
218 Dr Kornan thought the appropriate care was from a doctor prescribing high dosage psychotropic medication. Preferably that would be a psychiatrist but it could be the general practitioner, but given the plaintiff’s current presentation, it may be quite some time before that treatment proved helpful.
219 Dr Kornan considered the prognosis from a psychiatric point then appeared somewhat unfavourable, noting the plaintiff appeared to have very significant psychiatric difficulties and had totally lost confidence. He remained with a very noticeable depressive illness and Dr Kornan thought the prognosis was likely to remain at the current level into the foreseeable future.
220 Dr Kornan thought from a psychiatric viewpoint, the plaintiff had a significant severe psychiatric injury with severe consequences on his lifestyle. In his opinion, as part of the plaintiff’s psychiatric ill health condition, there appeared to be a Chronic Pain Syndrome. There appeared to be significant pain features now as part of his overall psychiatric presentation.
The Defendant’s medico‑legal evidence
221 The plaintiff was examined by Dr Barton on four occasions: 11 December 2009; 2 May 2011; 6 June 2013 and 11 August 2014.
222 Following the initial examination, Dr Barton thought the plaintiff may have developed a mild soft tissue injury that had been complicated by functional overlay with deliberate exaggeration. He then could not see any reason why the plaintiff could not do his normal work on a full-time basis without restriction.
223 On examination, the plaintiff demonstrated an escalating range of features of illness behaviour with grimacing and complaints of pain.
224 Dr Barton did not believe the plaintiff presented with any clear or convincing evidence of an ongoing back problem and that there were a number of features identified during the examination that pointed towards a significant degree of functional overlay. He thought it reasonable to conclude any work injury had resolved.
225 Dr Barton noted the investigations failed to show any significant abnormality. He held to his views, having seen the clinical notes of the general practitioner, a report from Mr de la Harpe and surveillance dated 10 March 2010, which suggested the plaintiff moved quite freely when he thought he was not being observed.
226 The first examination was without the assistance of an interpreter and there had been no language difficulties.
227 The second examination was conducted with the assistance of an interpreter.
228 On that occasion, the plaintiff grimaced and complained of pain. He reported a dramatic increase in the symptoms with the gentlest of axial loading. There was an inconsistency on straight leg raising.
229 Dr Barton noted the plaintiff again presented with a range of features that pointed towards a significant functional component to his complaints. He believed the plaintiff may have developed a mild musculoskeletal problem that had been complicated by abnormal illness behaviour and functional overlay. He was guarded about the plaintiff’s prognosis and thought it unlikely any particular treatment would make any difference.
230 Dr Barton then thought employment did not continue to be a materially contributing factor to any physical incapacity or impairment and he considered the plaintiff had a capacity to undertake a variety of jobs. However, his strong illness belief and behaviour suggested the plaintiff was unlikely to acknowledge any capacity himself to return to any work at all.
231 On the third examination on 6 June 2013, an interpreter was present. Dr Barton again noted the plaintiff was strongly symptom and disability focussed. He refused to get onto the examination couch. Again, there was a marked increase in pain on gentle axial loading, with power globally reduced throughout the left leg.
232 Dr Barton was critical of the Medical Panel’s Opinion the plaintiff had a physical medical condition and dysfunction as a consequence of the soft tissue injury.
233 On this examination, Dr Barton did not believe his findings or the review of the radiology pointed towards an ongoing physical condition. He thought the prognosis was exceedingly poor, with the plaintiff clearly entrenched in the sick role and a strong sense of entitlement and illness belief that nothing was going to change that. Dr Barton then doubted the plaintiff would ever work again due to his illness belief and non-physical factors.
234 The plaintiff wrote a letter of complaint to Dr Barton on 5 June 2013.
235 On the last examination in 2014, an interpreter was present. Dr Barton noted the plaintiff was reluctant to fully participate in the assessment and that he challenged many questions as he did not feel they were relevant.
236 Again, the plaintiff was reluctant to lie on the examination couch and asked not to be tested with gentle axial loading. Muscle power throughout the whole of the left leg and sensation to lighter touch was generally reduced.
237 Dr Barton concluded that on the occasions he had seen the plaintiff, he presented with a story to indicate severe and disabling back problems which had not been supported by any objective evidence, either on clinical examination or radiology. He concurred with the Medical Panel’s Opinion that there was no ongoing physical problem and the plaintiff had a Chronic Pain Syndrome following a now resolved soft tissue injury.
238 Dr Barton believed the prognosis was very poor in view of the plaintiff’s illness belief and pain problem and he did not believe he required any further physical therapy.
239 Because of the Pain Disorder and belief system that the plaintiff had developed, Dr Barton did not believe the plaintiff would return to work again. He concluded from a simple physical point of view, there was no particular incapacity for either normal work or suitable employment.
240 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 9 May 2011 and 3 July 2013 with the aid of an interpreter on both occasions.
241 On the initial examination, there were inconsistencies on straight leg raising. Initially, the plaintiff was observed to sit comfortably and subsequently, moved very slowly but was able to demonstrate a normal gait without any limp.
242 Mr O’Brien thought the plaintiff presented with what could be described as illness behaviour with considerable variation in signs of his apparent inability to move his neck and lumbar spine on formal examination, but his neck was observed to move quite freely in discussion. Further, in the seated position, the plaintiff demonstrated a combination of extension and flexion of the spine.
243 Mr O’Brien noted the four MRI scans confirmed what appeared to be fairly mild degenerative changes. He thought there was no significant lumbar pathology and that the signs excluded any major disc or nerve root pathology. He concluded the plaintiff now demonstrated non-specific back pain which was certainly complicated by psychosocial issues, the overall presentation now being what he considered to be a Chronic Pain Syndrome.
244 On the basis of the history, Mr O’Brien thought that employment had been a significant contributing factor to the plaintiff’s current presentation.
245 Mr O’Brien thought current physical signs would suggest, from a physical perspective, the plaintiff is not totally disabled, although he described significant disability with his inability to even undertake the normal activities of daily living.
246 As the plaintiff saw himself as totally incapacitated, Mr O’Brien could not see any reasonable possibility of him returning to gainful employment. He thought perhaps a pain management clinic with some vocational assistance might help him in that regard but considered that was unlikely.
247 On re-examination, the plaintiff described unchanged constant back and bilateral leg pain, worse on the left. He also described pain which he reported radiated approximately to the brain. Again, there were inconsistencies on examination.
248 Mr O’Brien thought the physical signs were entirely subjective and indeed extremely variable. On that basis, one could exclude any significant spinal pathology, the actual signs demonstrating substantial psychosocial influence on the clinical presentation. He again concluded the plaintiff presented with a Chronic Pain Syndrome and on the basis of that diagnosis, it remained related to his employment. The prognosis obviously remained poor.
249 Again, despite the plaintiff’s complaints, Mr O’Brien considered on the basis of his signs, that he was not physically totally incapacitated; however, the nature of his presentation would indicate there is no possibility of him returning to gainful employment.
250 Dr Stevenson, consultant physician in internal medicine, provided a report dated 2 August 2013 regarding what constituted Chronic Pain Syndrome and whether the plaintiff suffered from it. He did not examine the plaintiff.
251 Dr Stevenson had available the plaintiff’s affidavit sworn 28 March 2012; the Medical Panel Opinion and Reasons of January 2012; the MRI scan of the lumbar spine of 7 October 2009; medical reports of the plaintiff’s general practitioner, the most recent dated 24 June 2013, and his clinical notes; reports of Mr de la Harpe dated 26 February 2010; Dr Chau, dated 18 September 2012; Dr Thomas, dated 5 September 2012; medico-legal reports from Dr Barton, Dr Entwisle and medico‑legal reports relied upon by the plaintiff of Professor Paoletti, Dr Sutcliffe and Dr Blombery.
252 Dr Stevenson stated that the term “Chronic Pain Syndrome” is a descriptive one which indicates a social rather than a medical situation where the language of pain and the behaviour of illness persist in the absence of physical pathology or long after the healing of any injury.
253 Dr Stevenson noted the AMA 4th and 5th Editions (“the Guide”) stated that a Chronic Pain Syndrome may be best understood as a form of abnormal illness behaviour that consists mainly of excessive adoption of the sick role – similar to what Dr Barton described.
254 The Guide sets out that Chronic Pain Syndrome has its origin in both iatrogenic factors such as prolonged use of passive modalities and prolonged inactivation and in nomogenic factors (nomogenesis refers to abnormal illness behaviour functionally related to the social legislation that rewards complaints of pain, suffering and disability that is to the anticipation of financial gain).
255 Dr Stevenson thought Chronic Pain Syndrome is not strictly a medical diagnosis, noting a medical diagnosis is the identification of a pathology which explains the clinical syndrome. In Chronic Pain Syndromes there is no underlying pathology. He noted the syndromes are rare or non-existent in the domestic or sporting context; however, they proliferate often after trivial or undetectable injury in the compensation context. Financial factors must be considered in the complaint of medically inexplicable pain, noting survey findings to this effect and continuing pain significantly associated with level of education and the use of a lawyer, as Harris found.
256 Dr Stevenson noted numerous authorities underline the fact that Chronic Pain Syndrome is not a substantial diagnosis but a descriptive label.
257 Dr Stevenson noted emotional illness is a strong factor for back pain even without injury. He mentioned that economic literature is clear that human beings respond reliably and sensitively to economic incentive. Return to work after minor injury is determined by an economic balance which includes financial incentives.
258 Dr Stevenson noted the evidence indicated the plaintiff had suffered injury that was only clinically minor and in fact undetectable. There appeared to be, on the information provided, no physical or objective basis for his reported pain levels. Dr Stevenson noted major physical injury has physical signs and that protracted complaint of pain may reflect psychiatric illness or emotional distress.
259 Dr Stevenson noted while there does not have to be objective physical signs for there to be pain, such signs do support a genuine physical disability and where the signs are not present, there is a greater importance that there be a consistency of presentation.
260 In Dr Stevenson’s view, non-specific back pain was common in the general population. Repeated bending, as performed in the present case, accepted as a healthy exercise outside the compensation context, was not a cause of chronic disabling spinal pain.
261 In Dr Stevenson’s opinion, it appeared very likely that Dr Barton was quite correct and the plaintiff’s illness behaviour seemed inconsistent. He noted the obvious clue was recorded by Dr Blombery. The totally rigid spine is not what one sees this long, even after spinal fracture, and that the plaintiff has suffered injury that is clinically minor, in fact undetectable. Persons recovering from major injury are much more stoical.
262 Dr Entwisle, psychiatrist, examined the plaintiff on 13 July 2010, 29 March 2011, 27 June 2013 and 1 August 2014, with the assistance of an interpreter on all four occasions.
263 On all examinations, Dr Entwisle concluded the plaintiff did not present with a psychiatric condition. There was no mention of a Chronic Pain Syndrome in his first report.
264 On the third examination, Dr Entwisle noted the clinical picture was dominated by the plaintiff’s experience of pain. He had a Pain Syndrome and his presentation was largely explained by psychosocial factors. He thought the plaintiff now had entrenched illness conviction and he presented himself as largely invalided by his alleged work condition. He considered it was likely the plaintiff’s presentation was explained by psychosocial factors.
265 In his final report, Dr Entwisle diagnosed a Chronic Pain Syndrome. He thought, from a psychiatric perspective alone, the plaintiff had a capacity for suitable employment.
266 On the last examination, Dr Entwisle noted the plaintiff’s mood was irritable and querulous and his responses were vague, evasive and circuitous. His affect was focused and restricted and his account was not accompanied by emotional distress or agitation.
267 The Medical Panel, on 6 January 2012, found the plaintiff was suffering from a Chronic Pain Syndrome following a now resolved soft tissue injury relevant to the alleged back injury and no psychiatric or abnormal psychological condition relevant to the alleged psychiatric injury.
268 In the Panel’s Opinion, the plaintiff’s employment was in fact a significant contributing factor to a resolved soft tissue injury (with a consequential Chronic Pain Syndrome) and an Adjustment Disorder with Mixed Anxiety and Depressed Mood (now resolved).
269 The Panel found the plaintiff was incapacitated for work as a result of the alleged injury and thought that ongoing general practitioner attendances, physiotherapy and exercise, non-narcotic analgesia and psychological attendances as part of a pain management program were appropriate. In its view, it was not appropriate at that stage for the plaintiff to have the provision of specialist orthopaedic attendances and psychiatric attendances.
Lay Evidence
270 Ralph Ewart, operations manager with the defendant, swore and affidavit on 7 August 2013.
271 The plaintiff commenced casual work with the defendant in about September 2006 and was employed as a casual store worker for about twelve months before commencing full-time employment in August 2007. He last worked in December 2009.
272 During the period of employment, the plaintiff was employed by the defendant; he had no difficulty reading and speaking English. He maintained a good relationship with team leaders and fellow employees and communicated in English without any problems, and understood all instructions that were given.
Overview
273 I accept the plaintiff suffered a compensable injury to his lumbar spine during the period of employment performing lifting duties.
274 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[23] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[23][2006] VSCA 171
275 No such explanation has been forthcoming in the present case.
276 The consensus of medical opinion is the plaintiff suffered aggravation of pre-existing asymptomatic degeneration changes in his lumbar spine. This was not disputed by the defendant.[24]
[24]T44
Credit
277 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[25]
“… 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.”
[25](2010) 31 VR 1 at paragraph 12
278 Counsel for the defendant submitted there were issues as to the plaintiff’s credit and presentation and that the views of the doctors inferred there was some deliberate component in his presentation.[26]
[26]T35
279 In response, counsel for the plaintiff submitted there had been no substantial attack on the plaintiff’s credit, particularly in the witness box.[27] The plaintiff had been consistent in the way he presented to doctors and his behaviour on examination was consistent with a Chronic Pain Syndrome.[28] No doctor said the plaintiff was consciously trying to mislead on examination.
[27]T42
[28]T43
280 It is difficult to make an assessment of the plaintiff’s credit in this case. Clearly, he refused to co-operate on a number of examinations, whether by not undressing or not moving at all on examination. Yet no doctor specifically commented this behaviour was deliberate or feigned.
281 Further, there was no film that showed the plaintiff behaving in a manner inconsistent with his complaints of pain and restriction.
282 In these somewhat unusual circumstances, I accept the plaintiff was generally a truthful witness, presenting to doctors as a person suffering from a Chronic Pain Syndrome.[29]
[29]T43
283 Whilst the application was pursued under clause (a), counsel for the plaintiff submitted the application pursuant to clause (c) was the “simple way home”.[30] He agreed the clause (c) application was the main thrust of his submissions.[31]
[30]T44
[31]T51
284 However, brief submissions were made in support of an organically-based serious injury.
285 It was submitted that views of the treating orthopaedic surgeon, Mr de la Harpe, who had seen the plaintiff over four years, should be preferred to those doctors who found a soft tissue injury that had resolved, such as Dr Mutton, Mr O’Brien and Dr Barton.[32]
[32]T44
286 Reliance was also placed by counsel for the plaintiff on the view of Mr Bittar, who considered the plaintiff’s condition was an aggravation of spondylosis – consistent with the views of the plaintiff’s general practitioner, Dr Cheasley, and Dr Blombery and Dr Sutcliffe.
287 It was submitted I should find, based on the totality of the medical evidence, that the plaintiff suffered an aggravation of degenerative changes, and that situation was continuing.[33]
[33]T45
288 Counsel for the defendant submitted the plaintiff’s condition was not serious and lacked a substantial organic basis.[34] Whilst it was conceded there was disc degeneration,[35] there was no explanation for the plaintiff’s ongoing severe physical symptoms in organic terms and there was a lack of objective signs.
[34]T34
[35]T37
289 In Meadows v Lichmore Pty Ltd,[36] 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.”
[36][2013] VSCA 201 at paragraphs 21-22
290 In the present case, the preponderance of medical opinion is that any organically-based lumbar symptoms have been totally overwhelmed by a Pain Syndrome and that the plaintiff’s current presentation lacks a substantial organic basis.
291 In these circumstances, the application is properly assessed pursuant to clause (c), as Ashley JA set out in Veljanovska.[37] As counsel for the plaintiff submitted, the plaintiff’s Chronic Pain Syndrome is of a psychiatric nature.[38] The plaintiff has also been diagnosed as suffering from Depression and an Adjustment Disorder.
[37](2005) VSCA 227
[38]T43
292 The plaintiff has had psychiatric treatment at various stages and been prescribed antidepressant medication, although at present he is between treaters.
293 I accept the plaintiff’s psychiatric symptoms have had an effect on his domestic and social activities, but more importantly, his ability to work, to the point where he is totally incapacitated on psychiatric grounds due to his Chronic Pain Disorder, Major Depressive Disorder or Adjustment Disorder.
294 As of July 2014, Dr Cheasley thought the Chronic Pain Syndrome and the disability associated with that had caused Major Depression and that the plaintiff had no capacity for pre-injury employment or alternate employment.
295 Whilst Dr Chau’s first report is somewhat confusing, initially stating the plaintiff’s Chronic Pain Disorder does not result from, or is materially contributed by, the injury, I accept that he in fact did find a causal connection between the plaintiff’s psychiatric condition and his work duties, explaining the difficulties the plaintiff had suffered as a man who put great stock in work, coming to another country, trying to study, having a back injury, as a result of which he could not work and had decompensated.[39]
[39]T46
296 When he last reported in 2013, Dr Chau thought the plaintiff had no current capacity for pre-injury work. He did not know of suitable duties for the plaintiff, and considered it he would be unable to work indefinitely.
297 In 2012, Dr Thomas thought the only possible diagnosis was one of Chronic Pain Syndrome – psychologically based. As a result, the plaintiff did not have a current work capacity, and more likely than not, that would be indefinite.
298 Dr Weissman thought that when one considered the plaintiff’s severe Chronic Pain Disorder, as set out in DSM-IV, his Depressive Disorder Syndrome and the definition of suitable employment, he was more likely to be totally incapacitated for all work (pre-injury duties, suitable duties or alternate duties) than having a partial capacity for suitable duties.
299 In 2014, taking the psychiatric viewpoint on its own, Dr Kornan considered the plaintiff’s psychiatric state – Major Depressive Disorder, Adjustment Disorder with Anxiety and indications of a Chronic Pain Disorder associated with psychological factors – now prevented him from working despite his psychiatric injury having as its genesis the physical injuries. Dr Kornan thought the psychiatric ill health condition would then prevent the plaintiff from working.
300 Dr Entwisle is alone in the view that the plaintiff does not present with a psychiatric condition as such. He does not seem to have been aware the plaintiff had undergone psychiatric treatment from Dr Chau. Dr Entwisle however noted the plaintiff’s clinical picture is dominated by his experience of pain and, in 2014, he first diagnosed a Chronic Pain Syndrome.
301 On previous examinations, Dr Entwisle described the plaintiff’s presentation as largely dominated by psychosocial factors. He acknowledged the plaintiff now had entrenched illness conviction and he presented himself as largely invalided by his alleged work condition.
302 Dr Entwisle thought, from a psychiatric perspective alone, the plaintiff had a capacity for suitable employment, but gave no explanation for that view nor did he explain the basis of his diagnosis of a Chronic Pain Syndrome.[40] There was no analysis of why this syndrome is not psychiatric but he did consider the plaintiff’s condition was explained by psychosocial factors.[41]
[40]T48
[41]T49
303 Whilst they are not psychiatrists, Mr O’Brien, Dr Barton and, to a lesser extent, Dr Mutton, all formed the opinion the plaintiff cannot work because of a Chronic Pain Syndrome.
304 In 2013, Dr Mutton considered the plaintiff had no current capacity for any form of work, due to the severity of his pain and limited thoracolumbar function. He thought there were some psychological issues.
305 Mr O’Brien thought the nature of the plaintiff’s presentation would indicate there is no possibility of him returning to gainful employment.
306 In 2014, because of the Pain Disorder and belief system that the plaintiff had developed, Dr Barton did not believe the plaintiff would return to work again.
307 I received little assistance from Dr Stevenson’s opinion. He did not examine the plaintiff and based his findings on other material. He has no expertise in psychiatric matters. It appears he does not consider a Chronic Pain Disorder a psychiatric condition or a medical diagnosis, although it is diagnosed as such in DSM-IV.[42]
[42]T50
308 The present case can be distinguished from Papamanos[43] where leave was refused. In that case, where there was a minor physical injury and then a later Chronic Pain Disorder, the medical opinion was that the plaintiff had a work capacity, whereas in this case, Dr Weissman, Dr Kornan and other practitioners thought the plaintiff could not work because of his psychiatric condition.[44]
[43]Papamanos v Commonwealth Bank of Australia [2013] VCC 1491
[44]T47
309 Whilst the “without injury” earnings figure would have been in the range of $50,000, neither counsel put figures in this case, agreeing that there was “no halfway house” and it was an “all or nothing situation”.[45]
[45]T33
310 Given my findings that the plaintiff has no capacity for employment on psychiatric grounds, I am satisfied that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
311 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
312 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
313 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[46] and Advanced Wire & Cable Pty Ltd v Abdulle.[47]
[46][2009] VSC 454 at paragraph 147
[47][2009] VSCA 170
314 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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