Younas v Hume Doors and Timber (Vic) Pty Ltd

[2016] VCC 1145

g

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-04166

MUHAMMAD YOUNAS	Plaintiff
v
HUME DOORS AND TIMBER (VIC) PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2016
DATE OF JUDGMENT:	12 August 2016
CASE MAY BE CITED AS:	Younas v Hume Doors and Timber (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1145

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – psychiatric impairment – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (trading as Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309; O’Donnell v Reichard (1975) VR 916; Jones v Dunkel (1959) 10 CLR 298; Dordev v Cowan (2006) VSCA 254; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Smith with Ms K Popova	Zaparas Lawyers
For the Defendant	Mr A Moulds QC with Ms S Bailey	Lander & Rogers

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 in the course of his employment with the defendant, in particular on 27 March 2013 (“the said date”).

2       The plaintiff originally brought this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.

3       Before closing addresses, counsel for the plaintiff indicated the clause (a) application in relation to the lumbar spine was not being pursued.  Counsel advised that the lumbar injury was “only posited as the sponsor of the plaintiff’s psychiatric problem”.[1]

[1]Transcript (“T”) 49

4       The plaintiff claims to have suffered a severe psychiatric impairment pursuant to clause (c), namely a –

“permanent severe mental or permanent severe behavioural disturbance or disorder … .”

5       The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] 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”.

[2][1998] 3 VR 833

[3](1995) 21 MVR 314

6       Winneke P, in Mobilio,[4] 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.)

[4]Mobilio v Balliotis (supra)

7       A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[5]

[5][2005] VSCA 227

8       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.

9       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

10 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

11 By ss(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, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.

12      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[6] Grech v Orica Australia Pty Ltd & Anor[7] and Petkovski v Galletti[8] in reaching my conclusions.

[6](2005) 14 VR 622

[7](2006) 14 VR 602

[8][1994] 1 VR 436

13      The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  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

14      The plaintiff is presently aged thirty-three, having been born in December 1982 in Pakistan.  His wife and seven-year-old son still reside in Pakistan.  The plaintiff presently lives with two friends in Endeavour Hills.

15      The plaintiff completed Year 10 in Pakistan and then worked for a tailor for four years.  He also worked in a bakery and as a construction worker, and from 2007, until he left Pakistan in 2011, he worked as a rickshaw taxi driver.

16      The plaintiff came to Australia by boat in 2011 as a refugee and was detained at Curtin Detention Centre until about June 2012, when he was released into the community.

17  The plaintiff initially lived in a motel for about seven weeks and then in a house in Dandenong with fellow countrymen, for two-and-a-half months.  He then moved to another Dandenong address, where he lived for over two years.  He has been at his present address in Endeavour Hills for a year-and-a-half, where he resides with two friends.[9]

[9]T10

18      Prior to the said date, the plaintiff spent his time playing soccer, going for walks and swimming.  He was not studying English.[10]

[10]T11

19      In about July 2012, the plaintiff started seeing Dr Hamimi, who speaks his language.[11]

[11]T14

20      The plaintiff commenced his first job in Australia with the defendant on 1 March 2013 as an assembler and machine operator.  In that role, he was required to put door skins through a gluing machine.  He worked full time, about 38 hours a week, and earned $767 net per week.  He is presently in receipt of Newstart payments of $610 per fortnight.[12]

[12]T44

21      In his first affidavit sworn in March 2015, the plaintiff described a previous problem with haemorrhoids and stomach pain while in detention. 

22      During that time, and after he was released, the plaintiff was feeling low emotionally.  However, his mood did not have much impact on his day-to-day life, and he did not have suicidal thoughts.

23      There was extensive cross-examination as to the plaintiff’s psychiatric state before the said date.

24      The plaintiff agreed he took Lexapro during that time.  He thought he mentioned this in his affidavit, answering the questions he was asked.[13]  He also agreed he was taking Valium and Endep, and he might have been taking sleeping medication for poor sleep.[14]

[13]T12

[14]T13

25      The plaintiff knew Valium was for sleeping issues, but did not know what Lexapro was for.  Until he saw Dr Hogan on referral from Dr Kumar, the plaintiff did not know Lexapro was prescribed for depression.[15]

[15]T16

26      The plaintiff agreed, at the very least, he knew he had been given two types of tablets before the said date because he had a significant problem with sleep.  He knew the dosage of Lexapro was doubled in November 2012 because the original dosage was not effective and it was not fixing his sleeping problem.[16] 

[16]T17

27      The plaintiff could have been having counselling from Dr Hamimi in 2012.  The plaintiff agreed that prior to the said date, he was taking three tablets for his emotional state on a daily basis.[17]

[17]T18

28      The plaintiff could not remember seeing Dr Jabbar, and he could not remember the Endep dosage being increased, as Dr Jabbar noted on 18 December 2012.[18]

[18]T19

29      The plaintiff agreed he might have been seeing Dr Hamimi for depression a matter of weeks before he started work with the defendant and he might have been giving him tablets for depression at that stage.[19]

[19]T15

30      The plaintiff agreed he was depressed before the said date but it was just a “mild depression”.[20]  He denied he deliberately understated his emotional problems in his affidavit.  He has always told the truth and, even now, never exaggerated anything to his knowledge.  While there was no reference in his affidavit to taking medication before his injury, he had answered questions he had been asked.[21] 

[20]T34

[21]T36

31      Dr Kumar would have known about the plaintiff’s psychiatric condition before he started work with the defendant, as Dr Hogan would have told him.[22] However, the plaintiff was not sure whether Dr Kumar knew that during that time, he was taking medication.[23]

[22]T36

[23]T36

32      The plaintiff could not remember what he told Dr Nathar on examination on 7 June 2016 about any previous history, or that he disclaimed any past accident history or illness.[24]

[24]T38

33      The plaintiff had no recollection of telling Dr Damodaran that he did not have any mental problems before the said date, but the fact he had taken medication prescribed by him was proof of such problems.  The plaintiff had nothing to hide and if he had been asked about being under treatment for depression and problems with lack of sleep before the said date, he would have told doctors.[25]

[25]T39

34      When it was suggested to the plaintiff that he told Professor Mendelson that he had not had any psychological or emotional problems in the past, the plaintiff explained that he denied any issues relating to “genetics” and his family.  As far as he answered questions, he told the truth.[26]

[26]T40

35      The plaintiff had told Dr Kavianpour that he had problems with depression and lack of sleep before the said date but then said he was not sure whether she knew what medication he was then taking.[27]

[27]T41

36      In re-examination, the plaintiff confirmed he went for an interview with the defendant before getting the job.  He had no problems, psychologically, working in that role.[28]

[28]T40

37      Whilst he could not recall Dr Jabbar, the plaintiff agreed, two weeks after starting work, he was having pain in his neck, muscular pain, and pain and anxiety and depression, as Dr Jabbar noted.[29]

[29]T21

38      On the said date, the plaintiff was hit in the back by a door skin being fed through a machine by another worker (“the incident”).  Thereafter, the plaintiff immediately felt lower back pain and some left leg pain.  He reported the incident, and was told to go home and rest.

39      Two days later, the plaintiff attended Emergency at Dandenong Hospital.  As his back pain continued, he attended Dr Hamimi on 1 April 2013, who prescribed anti-inflammatory medication and arranged for a CT scan.  The plaintiff then saw Dr Hamimi approximately monthly and was given WorkCover Certificates by him.

40      In cross-examination, the plaintiff could not remember discussing certification with Dr Hamimi from early April 2013.[30]

[30]T22

41      The plaintiff could recall receiving a telephone call from the insurer, suggesting he do light duties.  He did not talk to Dr Hamimi about whether he was fit or not to do those duties.  He could not remember ever discussing with Dr Hamimi returning to work.  Whilst he may have had that discussion, he could not recall the sort of duties they discussed.[31]

[31]T22

42      The plaintiff was asked by the insurer to attend the defendant’s premises where he was shown the proposed duties.  He described this event as an “induction”.  The suggested job involved the plaintiff sitting, working with parts, and he was able to sit and stand as required.[32] 

[32]T23

43      The plaintiff could not recall a long discussion with Dr Hamimi about return to work, as noted on 30 October 2013, but he might have had that discussion.

44      The plaintiff might have said, as Dr Hamimi reported, that Dr Hamimi was forcing him to go back to work and that he could not do light duties, but he could not remember.  He could only recall the telephone call and “induction”. Dr Hamimi might have been giving him certificates for light duties.[33] The plaintiff had not returned to work because he was in great pain, then and now.[34]

[33]T25

[34]T26

45      The plaintiff deposed that he did not return to work after the incident because he had too much back pain and he was frightened of injuring himself further.  In addition to lower back and left leg pain, after the incident, the pain began to spread down both legs.

46      In about June 2013, Dr Hamimi referred the plaintiff to Mr Khan, who arranged further investigations.

47      The plaintiff had about thirteen physiotherapy sessions between October and December 2013 with Mr Luka.  That treatment did not really make his lower back or leg pain go away.  Further physiotherapy treatment in September 2014 from Mr Moar did not make much difference to the plaintiff’s condition.[35]

[35]The plaintiff was referred by Dr McCallum to Mr Moar, physiotherapist

48      On September 2013, Mr Khan referred the plaintiff to Caulfield Pain Management, but he did not attend because there was a long waiting list.  Instead, in about December 2013, the plaintiff commenced seeing Mr Etherington, a spine surgeon, who arranged further investigations, and a second opinion from Dr Chan, a neurosurgeon. 

49      In about January and February 2014, the plaintiff had cortisone injections, which did not help.  Four more injections were scheduled for 2015.

50      At the start of 2014, the plaintiff changed general practitioners to Dr Yiap, who arranged for him to see Dr McCallum, a pain specialist. 

51      The plaintiff agreed he stopped seeing Dr Hamimi and started seeing Dr Yiap in Dandenong in April 2004.  He found Dr Yiap through a friend.  The plaintiff stopped seeing Dr Hamimi because he was extremely busy and every time he went for an appointment, the plaintiff had to wait for a few hours.  He did not tell Dr Hamimi that this was a problem.  Dr Yiap sees the plaintiff straight away, maybe with him waiting at times for ten minutes.[36]

[36]T27

52      Dr McCallum made some recommendations about the plaintiff changing his medication and also referred him to Dr Aliashkevich, a neurosurgeon, who did not think that surgery would give the plaintiff pain relief.

53      The incident made the plaintiff feel extremely low and in about June 2014, he had a psychiatric assessment.  The following month, he began seeing a psychologist, Dr Kavianpour, whom he saw a few times.

54      As of March 2015, the plaintiff experienced constant lower back pain radiating into both legs, more intense after fifteen minutes in the one position.  He was then taking Valium and Endep, but had side effects from this medication.

55      The plaintiff deposed that he felt drained and flat and often had very low moments when he thought about ending his life.  He took Lexapro daily for his depression but could not tell if it was helping.

56      The plaintiff had found sleeping much more difficult since the incident and although, in the past, he had problems sleeping, he could get at least seven hours’ sleep every night, but then only slept for four.  He described difficulties with housework and personal tasks due to back pain.

57      Since the incident, the plaintiff had not been able to have sex.  He had put on weight, not being able to be as physically active as pre incident, when he went swimming and did other activities.  Post-incident, he could walk for about fifteen minutes before an increase in pain.

58      The incident injury had caused a reduction in the plaintiff’s social life.  He was not in the mood to see people.  He could not concentrate, lacked motivation and felt depressed.  He felt hopeless and had started drinking.  Small things that did not trouble him before, like coughing or sneezing, caused back pain.

59      The plaintiff was in receipt of Centrelink benefits.  He wanted to go back to work but did not think he could do so physically or mentally, and because of his limited skills in English, he did not know what work he could do that was not physically demanding and he could cope with.  He had thought about surgery, but doctors had told him it might take about six months to recover and it may make no difference to his condition and he did not want to take that risk.

60      The plaintiff swore a further affidavit in July 2016.

61      The plaintiff continues to see Dr Yiap twice a month and psychologist, Dr Kavianpour, about once a month.  On her recommendation, he started seeing Dr Kumar, a psychiatrist, and, in about November 2015, started seeing another psychiatrist, Dr Hogan.

62      Throughout 2015, the plaintiff attended Dr McCallum for pain management.  He arranged further investigations and an injection, and referred the plaintiff to Professor Teddy, neurosurgeon.

63      In May 2015, the plaintiff attended a Pain Management Program organised by Dr Sullivan, but could not complete the program because the prolonged sitting increased his back pain.

64      The plaintiff presently takes three 100-milligram Quetiapine tablets at night to help him sleep, and also for depression.  He takes a 100-milligram Palexia tablet first thing in the morning, and another at night, for back pain.  He also takes one 200-milligram tablet of Pristiq in the morning for depression.  These medications continue to give him awful side effects.  He also takes one or two 40-milligram Nexium tablets daily for his stomach, and medication for constipation.

65      Despite injections and medication, the plaintiff still has constant back and left leg pain.  He forces himself to leave the house every few days to clear his head.  He spends most of the time at home and always feels exhausted.  He is woken by back pain at night and only gets a few hours’ sleep.  He has trouble concentrating and remembering things.  He drives locally, mostly to the chemist, but hates driving because the car seat is uncomfortable.  He can sit for longer than fifteen minutes, but doing so aggravates his pain.[37]

[37]T27

66      The plaintiff socialises with people in his community, but not at formal gatherings.[38]

[38]T31

67      While the plaintiff reads books he borrows from his housemate, he cannot remember what he has read.[39]  The plaintiff has not tried English classes at all and his back pain stops him from living his life in a normal way.  He learns English from his housemate.[40]

[39]T33

[40]T30

68      The plaintiff has problems doing housework and does not do sweeping.  He can put his clothes in and out of the washing machine.  He does his own dishes but does not do any cooking.[41]

[41]T34

69      Last year, there were times when the plaintiff felt people were talking about him and his injury.  His psychiatrist had changed his medication and he did not feel that way anymore.  He still thought about ending his life from time to time, but knew he could not do that to his family.

70      The plaintiff blamed his back injury for his current predicament.  He cannot earn money or send money back to his family, and has nothing in his life which makes him happy.

71      The plaintiff agreed he went to Afghanistan in 2014.  He had a protection visa and could not go to Pakistan so his wife and child came to Afghanistan to see him.[42]  He took twice as many painkillers as usual on the flight.[43]

[42]T28

[43]T29

72      The plaintiff explained bringing his family to Australia was financially impossible and he had to get citizenship before doing so.  He has applied for it and is still waiting.[44]  He might have applied two months ago.[45]

[44]T20

[45]T44

73      The plaintiff confirmed he now experiences the range of symptoms described by Dr Hogan.  He has problems with socialising, self-esteem, housework, suicidal thoughts, hearing voices and problems with his appetite which were not an issue pre incident.  He also has problems with memory and concentration which were better before the incident when he could recall things such as doctors he had seen.[46]

[46]T43

Medical evidence

Treaters

74      The plaintiff’s current general practitioner, Dr Yiap, most recently reported in January 2016, noting there had been little overall change in the plaintiff’s condition since his 2014 report.[47]

[47]Report dated 18 November 2014 in which Dr Yiap provided a similar opinion

75      The plaintiff continues to complain of chronic back pain and has not responded overall to treatment, including the latest medial branch blocks, and he could not finish the pain management program.  He had seen Mr Etherington, neurosurgeon, who did another MRI scan, but that did not show any pathology to explain the plaintiff’s pain.

76      Dr Yiap noted the plaintiff continues to remain depressed, with erectile dysfunction.  The plaintiff has advised that his psychological counselling did not improve his mood overall. 

77      Dr Yiap noted Dr Hogan was adjusting the plaintiff’s medication with limited success and although there was some reported improvement, the plaintiff still remained profoundly depressed.

78      Dr Yiap confirmed his view in his 2014 report that the description of the initial injury was consistent with the cause of the plaintiff’s lower back pain.  The lack of objective findings on investigations did not support any serious injury.  He thought the plaintiff’s lack of response to treatment so far was suggestive of a Chronic Pain Syndrome and he now had an Adjustment Disorder secondary to his chronic pain.

79      Dr Yiap considered the plaintiff had no current fitness for pre-injury work as stated, and that he still has considerable lower back pain and no improvement with standard conservative treatment.  Alternative duties would be difficult given the plaintiff’s lack of English.  The plaintiff’s depressive symptoms would make it difficult for him to concentrate and focus.

80      Dr Yiap thought the prognosis remained poor, as the plaintiff had a Chronic Pain Syndrome in the absence of any pathology and an Adjustment Disorder with significant Depression.  He noted such patients usually do poorly, especially when there are compensation issues.

81      Dr Kavianpour, clinical psychologist, most recently reported in April 2016.  She has been treating the plaintiff since early 2015 on referral from Dr Yiap.

82      Dr Kavianpour noted the plaintiff reported no history of psychological or psychiatric problems prior to his current work-related injuries and consequent chronic pain.

83      In her earlier report of January 2015, Dr Kavianpour advised that the plaintiff presented with a Major Depressive Disorder and Anxiety which had occurred in the context of the work incident.  Following that, he had been suffering from low mood, difficulty sleeping, low appetite, low energy, poor memory and concentration, loss of pleasure and suicidal thoughts in reaction to severe depression.

84      In that report, Dr Kavianpour noted that since the plaintiff had lost his job and income, he was not able to afford the visa application fees to sponsor his family.  That situation had caused problems and difficulty in their marriage and he was fearful that would result in separation and divorce.  She noted the plaintiff had to borrow a substantial amount of money to be able to support his family financially and his financial situation was worsening over time. 

85      In that first report, Dr Kavianpour stated it was important to note the plaintiff was a functioning member of the community who was able to manage his family and job prior to his work-related injury.  At that stage, she thought he was not at his full functional capacity in relation to day-to-day functioning and work-related duties, due to his physical and psychological injuries and current, ongoing pain.  She noted his need for medical treatment had increased since the previous year.

86      In April 2016, Dr Kavianpour reported that the plaintiff presented with an Adjustment Disorder with Mixed Depressive and Anxiety symptoms following the incident.  She did not comment on his capacity for work from a psychiatric point of view.  She thought the stabilisation of his mental health condition depended on his level of recovery from his physical injuries and pain. 

87      Dr Kavianpour noted the plaintiff had been trialled on a number of psychotropic and pain medications such as Lexapro, Valium, Tramadol and Endep, but there had been significant side effects, therefore, his need for future medical treatments, including psychological therapies, was likely to increase over the course of his lifetime.

88      The plaintiff received psychiatric treatment from Dr Kumar, who reported to Dr Yiap in January 2015 and August 2015.

89      In his first report of January 2015, Dr Kumar noted the plaintiff became sad and teary on occasion and had become socially withdrawn.  There was sleep disturbance but the plaintiff’s appetite was good.  There were significant cognitive defects and self-esteem was poor.

90      The plaintiff reported hearing a voice outside his head since the incident.  There were no persecutory delusions evident.  There were no suicidal or deliberate self-harm attempts.

91      Dr Kumar noted that the plaintiff had never seen a psychiatrist for treatment in the past. 

92      Dr Kumar thought the plaintiff met the criteria for Major Depression with psychotic features, but the issue was the complaint of sexual side effects to anti-depressant medication.

93      In his most recent report of August 2015, Dr Kumar advised he had seen the plaintiff with an interpreter thirteen times.

94      The plaintiff then remained with a low mood and became sad and teary on occasions.  His complaints were similar to those on earlier examination.

95      Dr Kumar noted the plaintiff had been unsuccessfully treated with high doses of Lexapro over a considerable period of time and had commenced on Cymbalta three weeks earlier, with minimal benefit.

96      Dr Kumar advised that he had informed the plaintiff he would be relocating his practices and there should be referral to anther practitioner.

97      Dr Geoffrey Hogan, psychiatrist, reported to the plaintiff’s solicitors in March 2016, having first seen the plaintiff on 26 November 2015 and monthly thereafter.

98      Dr Hogan did not note any previous psychiatric history.

99      Dr Hogan noted the plaintiff said there were stressors other than his ongoing pain limitation of activities and problems with WorkCover.  There were financial difficulties.  The plaintiff had had English classes when in detention as a refugee.  He could now not sit in classes with his back pain to pursue further English studies and obtain citizenship to obtain a visa to bring his wife and son to Australia.

100     The plaintiff described quite limited sleep, broken by pain, poor appetite, poor energy, social withdrawal, forgetful and poor concentration, excessive tension and a largely quite low mood with evening worsening, tearfulness and suicidal thoughts.  He had had some erectile dysfunction since the incident, and no libido. 

101     Dr Hogan noted that at the time of the presentation to Dr Kumar, the plaintiff had been experiencing external auditory hallucinations.  Those had diminished over time.  In public places, the plaintiff could feel that people were talking about him and laughing about him.

102     Dr Hogan noted that there was no significant past medical history and no past psychiatric history.  There was no familial predisposition to psychiatric disorder.  There was no evidence of a personality disorder nor, overall, any indication of a predisposition to psychiatric disorder.

103     Dr Hogan thought there had been no improvement in the plaintiff’s presenting pain or affective symptoms.  He did not believe the plaintiff was fit for any employment duties.  He thought his psychiatric symptomatology, in itself, would preclude any employment.

104     Dr Hogan believed the plaintiff’s Major Depressive Disorder with psychotic features was a consequence of his work injury and chronic pain.  He believed the plaintiff required ongoing treatment to attempt to alleviate his psychiatric symptomatology.  The prognosis was then uncertain.

105     Having been provided with Dr Das’ 2014 report suggesting there was no psychiatric incapacity, Dr Hogan stated that, in his clinical assessment, he did not believe that, at any time, the plaintiff could be regarded as being fit for modified duties, both on the basis of his ongoing pain and the severity of his psychiatric symptomatology, and that the prognosis was then uncertain.

106     Thus, Dr Hogan could not agree with Dr Das that there was no psychiatric incapacity, given the plaintiff presented with a history indicative of Major Depressive Disorder with psychotic features.

Medico legal – psychiatric

107     Dr Nathar, psychiatrist, examined the plaintiff on 7 June 2016.

108     Dr Nathar noted the plaintiff disclaimed any past significant medical or accident histories.[48]

[48]It was apparent from his history that Dr Nathar was under the misapprehension Dr Yiap had been the plaintiff’s treater since the incident.

109     The plaintiff said he probably had the onset of depression towards the end of 2013 and early 2014, and he was referred to Dr Kumar.

110     The plaintiff advised his depression was quite bad and he felt sad and worried a lot.  He even had suicidal thoughts and had discussed those with Dr Kumar and Dr Hogan, but thought of his family, as they were his only hope.

111     Dr Nathar noted the plaintiff was particularly anxious about his financial situation.  He became irritable and impatient and had a poor sleep pattern.  Memory and concentration were poor and he had had sexual dysfunction since the incident. 

112     On direct questioning, the plaintiff advised he used to often hear voices, but they were now not that frequent and would tend to trouble him when he became extremely sad and depressed.

113     On mental state examination, the plaintiff presented with a depressed and anxious face.  He was moderately depressed and anxious and described vague, occasional auditory hallucinations.  Form of thinking was normal.  Dr Nathar thought, as a result of the incident, the plaintiff had developed secondary depression and anxiety of a moderate degree. 

114     Dr Nathar noted he had obtained a history of a man without any clear predisposing factor or past history of any psychiatric predisposition.  In his view, the plaintiff had been receiving adequate psychiatric treatment, but had been left with significant residual psychiatric symptomatology and he certainly seemed to be unfit for any work.

115     Dr Nathar considered the plaintiff as having two interrelated psychiatric diagnoses: the first being a Moderately Severe Major Depressive Disorder with significant Anxiety symptoms.  Associated with that, clearly, had been psychological pain amplification and, therefore, the plaintiff would also have another diagnosis of a Chronic Pain Disorder involving psychological factors and general medical conditions, also of moderate severity.

116     Excluding any physical injury and taking into account only psychiatric injury, Dr Nathar believed the plaintiff did not have any psychiatric capacity to return to any kind of work as he was far too depressed and anxious. 

117     Dr Nathar thought it was essential the plaintiff maintained psychiatric treatment and medication for the next few years as, otherwise, there would be a likely deterioration.  Overall, he thought the psychiatric prognosis was very poor, noting chronic pain problems generally have a poor prognosis.

118     Describing the plaintiff’s psychiatric injuries as of moderate severity, Dr Nathar considered the impact upon his lifestyle activities of daily living and being able to carry out his full social and recreational activities had been significantly adverse and severe.  These preclusions and difficulties, in Dr Nathar’s view, would be likely to be permanent.

Back treaters

119     The plaintiff was examined by Mr Khan, orthopaedic surgeon, in June and September 2013 on referral from Dr Westmore. 

120     At the time of the September examination, Mr Khan considered the plaintiff required intensive pain management treatment in a multidisciplinary organisation as he had symptoms of chronic pain on top of the physical aspects of his injury he developed secondary to the incident injury.

121     Mr Khan thought the plaintiff sustained musculoskeletal and ligamentous strain to the lower back and had developed mild discogenic pain in the lower back as shown on CT scan at L4-5.

122     Due to the combination of physical aspects of the injury which had been associated and secondarily affected by non-organic symptoms and depression and anxiety, Mr Khan thought the plaintiff required referral to a multidisciplinary pain management clinic.  He thought the long-term diagnosis was guarded.  He did not comment on the plaintiff’s employment capacity.

123     Mr Etherington, spine surgeon, initially saw the plaintiff in December 2013 with reviews in January and February 2014.  He diagnosed L5 spondylosis without spondylolisthesis and early degenerative changes at L5-S1.

124     Mr Etherington thought the incident precipitated symptoms from the lower lumbar spine.  As at February 2014, the plaintiff still had enough pain to significantly restrict his work and home life, and Mr Etherington doubted he was able to return to normal duties, although he may be able to manage modified duties and hours.

125     On the last review in October 2015, the plaintiff symptoms had not improved and he complained of bilateral leg pain as well as lumbar axial pain.

126     Mr Etherington thought the cause was unclear, despite multiple repeated investigations and consultations.  He assumed that the plaintiff still had a significant disability and was unlikely to be fit for factory work.  He suggested a neurological consultation but he did not know if had taken place. 

127     Mr Chan, neurosurgeon and spinal surgeon, first examined the plaintiff in June 2014 on referral from Mr Etherington.  There was a further review in August that year.

128     Mr Chan diagnosed mechanical axial lower back pain and referred somatic pain to both legs.  He thought there was an underlying L5 pars defect bilaterally, but the pain generator was uncertain.

129     Mr Chan considered that the plaintiff did not have fitness for pre-injury employment; however, he should have fitness for alternative duties which should be mainly back friendly.  Overall, he thought the prognosis was poor with mechanical back pain in the setting of difficulty in ascertaining the pain generator.

130     Dr McCallum, pain physician, first saw the plaintiff on 1 September 2014 on referral from Dr Yiap.  He undertook a radiofrequency neurotomy on the plaintiff’s lumbar spine in November 2015.

131     Dr McCallum noted the plaintiff stated he felt extremely depressed, and informed him that his psychiatrist was aware of his suicidal thoughts but he had significant protective factors in place due to his family and wife.

132     Dr McCallum thought the plaintiff was depressed and had a Chronic Pain Syndrome.  In his view, the plaintiff’s pain was, in part, related to facet-joint arthropathy and there was a strong chronic muscular component.  He noted the plaintiff was deconditioned and depressed.

133     Dr McCallum considered that the plaintiff was not fit for pre-injury employment and did not believe he would be fit for alternative duties due to pain, psychological condition and lack of English.

134     In July 2016, Dr McCallum advised he believed the plaintiff suffered from a Chronic Pain Syndrome.  He thought the plaintiff’s case was a complex mix of psychiatric, psychological and organically-based pain. 

135     Dr McCallum noted he was under the impression the plaintiff was functioning normally until the incident and that he may have had significant mood problems before that time.  He did believe, though, the incident and the pain that occurred from it and had persisted, would have resulted in poorer mood and level of functions. 

136     Dr McCallum thought a large degree of the plaintiff’s problems related to his psychiatric state.  He believed the plaintiff’s current condition was precipitated by the incident as he was under the impression the plaintiff was working normally before it.

137     Dr Aliashkevich, neurosurgeon and spinal surgeon, saw the plaintiff in October 2014 on referral from Dr Yiap.

138     Dr Aliashkevich thought the plaintiff was unable to work in pre-injury alternate duties.  He considered that the plaintiff’s condition was work related and his employment contributed to symptomatic deterioration of pre-existing bilateral L5 pars defects, with no evidence of spondylosis. 

139     Dr Aliashkevich agreed with the opinions of other orthopaedic and neurosurgical specialists, that all reasonable conservative treatment options should be exhausted prior to taking surgery into consideration as the very last resort.

140     The plaintiff was referred to Dr Richard Sullivan, pain management specialist, by Dr McCallum in 2015.  He last saw the plaintiff in August 2015.

141     Dr Sullivan reported the plaintiff had a chronic pain condition, presenting as chronic lower back pain and chronic left-sided sciatica, noting that he had failed to respond to a range of conservative treatment.

142     At the last assessment, Dr Sullivan thought the plaintiff was unable to return to his work as a labourer or process worker, given that work was highly laborious and the plaintiff’s tendency to aggravate his pain on fairly modest physical activity.  Furthermore, because of the plaintiff’s limited education and English, vocational retraining would be very difficult. 

143     Dr Sullivan then thought re-engagement in a pain management program could be considered if the plaintiff’s tolerance levels were such he felt he could complete a full program. 

144     Dr Sullivan thought the prognosis was guarded.  He doubted the plaintiff would return to his pre-injury vocational role; however, if he undertook an English course and gained some skills in both spoken and written English, he may be able to have some retraining in some form of sedentary work.

145     Professor Teddy, neurosurgeon, saw the plaintiff once at Frankston Outpatient’s on 20 May 2016.

146     Professor Teddy considered that the plaintiff most likely suffered a soft-tissue injury to his back as a result of the incident.  He had clinically diagnosed depression.

147     Professor Teddy believed there was relatively little organic basis to the claim, and the overwhelming influence was of a psychiatric nature.  He thought the lower back injury would be of modest consequence in terms of the plaintiff’s employment capacity.  He considered there was only a modest component of organic injury contributing to the ongoing perception of symptoms.  He believed the psychiatric consequences of the injury were those which demanded the most urgent attention.

Back – medico legal

148     The two opinions relied upon by the plaintiff in this regard, unlike most medical practitioners involved in this case, considered the plaintiff’s condition to have an ongoing organic basis.

149     Mr Kossmann, orthopaedic surgeon, examined the plaintiff in April 2014.  He re-examined the plaintiff in March 2016 and provided a supplementary report on 2 June 2016.  He and Dr Kennedy are two of the few practitioners who considered there was an ongoing organic basis to the plaintiff’s present condition. 

150     On initial examination, Mr Kossmann found there were no non-organic features, there was restricted lumbar movement and there was tenderness to palpation.

151     Mr Kossmann diagnosed aggravation of pre-existing bilateral L4-5 and L5-S1 degenerative facet joints and mild broadbased disc bulge at L4-5, and bilateral L5 pars defects with no anterior spondylolisthesis.

152     Mr Kossmann then thought the prognosis was guarded, noting the plaintiff’s symptoms had gradually deteriorated in the absence of significant findings on MRI scan.

153     Mr Kossmann thought the plaintiff was unfit for pre-injury heavy work and, given his limited proficiency skills and limited postural tolerance, alternative work would be challenging, and he recommended a vocational assessment. 

154     On re-examination in 2016, Mr Kossmann confirmed this diagnosis.

155     Mr Kossmann then thought the plaintiff had no work capacity.  He had previously done demanding physical work; however, he was significantly limited in his level of activity and had a 5-kilogram lifting limit.  He thought the plaintiff’s incapacity for work would continue for the foreseeable future and there was a risk he may never return to any form of employment.

156     Mr Kossmann thought the plaintiff’s symptoms could be explained by the findings on the March 2016 MRI.

157     Dr David Kennedy, sports and industrial physician, examined the plaintiff in May 2016.

158     Dr Kennedy thought the plaintiff sustained a soft tissue injury in the incident, without aggravation, and acceleration of osteoarthritic changes in the posterior facet joints of the lumbar spine, giving rise to a mechanical lower back injury.

159     In Dr Kennedy’s view, the plaintiff’s demeanour throughout the medical consultation indicated a depressive component, which should be assessed by a clinical psychiatrist.

160     Dr Kennedy thought the plaintiff had developed a chronic lower back problem with damage to the myofascial structures and aggravation of pre-existing asymptomatic osteoarthritic changes in the lower lumbar posterior facet joints following the incident.  He considered the plaintiff had an organic basis for his pain, as he developed a chronic mechanical lower back problem requiring pain management.

161     Dr Kennedy thought the plaintiff was restricted in relation to pre-injury employment, but with appropriate retraining, he may be able to engage in modified occupational duties, but there were significant limitations, taking into account his pain, his age, limited education skills, English language and ongoing physical restriction.  He considered the plaintiff had significant limitations in relation to alternative suitable employment.

162     In a subsequent report of June 2016, Dr Kennedy noted the chronic pain had resulted in significant depression and that the plaintiff would have difficulty being a reliable employee.

Investigations

163     Following a CT scan of the lumbar spine, on 8 April 2013, it was reported that there was mild broadbased posterior disc bulge at L4-5.  There was bilateral L5 pars defects with no anterior spondylolisthesis.   

164     An x-ray of the lumber spine of 26 June 2013 was reported to show no spondylolisthesis, alignment was maintained, vertebral body heights were preserved and there was satisfactory alignment.  There were facet joint degenerative changes at L4-5 and L5-S1, and the S1 joints were normal. 

165     An MRI scan of the lumbar spine of 24 July 2013 was reported to show no significant disc herniation, foraminal or canal stenosis.  There was bilateral L5 pars defects without any associated spondylolisthesis. 

166     An MRI scan of the lumbar spine of 21 March 2016 was reported to show a mild broadbased posterior central disc bulging at L4-5 and, more especially, at L5-S1, with the broadbased disc bulge contacting the under surface of the right and left L5 nerve root in the neural foramina bilaterally.

Claim documents

167     By letter dated 5 January 2015, liability was accepted for the plaintiff’s claim pursuant to s98(c) in relation to aggravation of pre-existing degenerative changes in the lower back.  A zero impairment was allowed by Mr Battlay.

168     From 10 April 2013 to 27 May 2014, Dr Hamimi provided certificates for alternative duties, and at times certified the plaintiff unfit for any duties in relation to the diagnosis of mild broadbased disc bulge at L4-5.

The Defendant’s medical evidence

The Plaintiff’s treaters

169     Dr Yiap first reported in November 2014, having seen the plaintiff since 22 April 2014.

170     Dr Yiap then thought the plaintiff had no current fitness for pre-injury work because of considerable low back pain, and that alternative duties would be difficult because of his lack of English and depressive symptoms, making it difficult to concentrate and focus.

171     Dr Yiap did not feel invasive treatment was indicated while the plaintiff remained depressed and that he firstly needed management of the Adjustment Disorder to have a positive outlook, rather than his current catastrophic view of his injury.  The prognosis remained guarded, as Dr Yiap thought the plaintiff had a Chronic Pain Syndrome in the absence of any pathology and he also had an Adjustment Disorder with significant Depression.  He noted such patients usually do poorly, especially when there are compensation issues.

172     A number of 2015 reports from Dr McCallum were relied upon by the defendant. 

173     Dr McCallum thought the plaintiff should definitely continue to see a psychologist who spoke his language, and it would be useful to engage with a chronic pain physiotherapist.  He suggested to the plaintiff that he gradually increase his level of function and start walking, and cease taking Panadeine Forte and try Palexia.

174     In September 2015, Dr McCallum advised that he was struggling to make any progress with the plaintiff.  Diagnostic blocks were of no benefit at all and the pain chart showed no change in pain, which Dr McCallum did not think was reliable.  He advised one option was to repeat the blocks.  However, he was never sure of the usefulness of a diagnostic test when it is going to be extremely likely there is going to be a positive result before it is even done.  He therefore requested radiofrequency neurotomy.

Medico legal – psychiatric

175     The plaintiff was examined by Dr Das, psychiatrist, on 23 June 2014. 

176     Dr Das noted the plaintiff had then been on treatment for depression for nearly a year and had been prescribed Diazepam, Lexapro and Endep at night for that period.

177     Dr Das noted there was no past history of any injury, accident or WorkCover claim and that the plaintiff had no history of any previous contact with a psychiatrist, psychologist or counsellor.

178     On mental state examination, the plaintiff was clearly preoccupied with his pain, saying if his back was all right, he would go back to his old job.  His thought content revolved around themes of helplessness and uncertainty about his future.

179     Dr Das considered the plaintiff presented with findings consistent with the diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  In his view, that reactive condition developed secondary to the lower back injury sustained at work.

180     Dr Das thought there was no working capacity on psychiatric grounds and that a psychologist referral was appropriate and would be of more benefit if carried out in conjunction with a multi-discipline pain management program.

181     Dr Das considered the plaintiff’s condition was a new one.  He thought the prognosis was by and large dependent upon the response to treatment of the primary physical injury.

182     Professor Mendelson, psychiatrist, examined the plaintiff in May 2016.

183     On direct questioning, the plaintiff did not acknowledge having experienced any psychological or emotional problems in the past, or having had any treatment for such difficulty.  No family history of nervous illness or psychiatric treatment was obtained.

184     During the interview, the plaintiff showed no evidence of cognitive impairment.  There was no indication of formal thought disorder or of any abnormalities of thought content, such as delusions or over-valued ideas.

185     The plaintiff described extreme pain in the lower back, extending down the left leg all the way to the toes.  He said that he also experienced mental issues and attributed those to pressure because he was not able to sleep well due to pain.  He also described being anxious separated from his family.

186     Based on the history given to him by the plaintiff and his observations on mental status examination, Professor Mendelson concluded the plaintiff did not have any diagnosable mental disorder because his emotional symptoms and observations on mental status examinations did not meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder. 

187     At the same time, Professor Mendelson accepted and acknowledged the plaintiff experienced and reported emotional symptoms that were due to an understandable psychological reaction to his physical complaint.  He noted the plaintiff seemed to have thought that his back condition resulted from the incident, rather than a developmental abnormality.  Unsuccessful injections had reinforced the plaintiff’s mistaken belief he had a serious organic abnormality that was untreatable.

188     Professor Mendelson thought the plaintiff required a firm and unequivocal explanation and reassurance from treaters to the effect there was no objective evidence of any injury to his spine, and that he should be involved in a functional restoration program as the first step to returning to gainful employment.

189     Having found the plaintiff did not have any diagnosable mental disorder, Professor Mendelson thought there was no loss of work capacity as a result of any psychiatric illness or psychiatric impairment.

190     Associate Professor Damodaran, consultant psychiatrist, examined the plaintiff in June 2016. 

191     On examination, the plaintiff denied any past history of any mental illness.

192     The plaintiff reported he continued to remain disappointed, sad and unhappy in his predicament.  He felt helpless and worthless and quite ashamed he could not support his family.

193     On mental examination, the plaintiff’s affect was of sadness and his mood was anxious and sad.  There were no formal thought disorders and content was dominated by the plaintiff’s ongoing sense of helplessness, rumination, preoccupation, ideas of guilt and of resentment regarding the whole process.  The plaintiff denied any suicidal plans, though acknowledged there were fleeting suicidal thoughts.  There were no delusions or perceptual anomalies and no cognitive impairments.  The plaintiff had partial insight of the condition.

194     Based on the available information and the examination, Associate Professor Damodaran thought the plaintiff was suffering from an Adjustment Disorder with Depressed Mood, along with a Chronic Pain Disorder associated with general medication, condition and psychological factors.  He considered the plaintiff’s emotional symptoms were significantly affecting his Pain Syndrome.  That situation needed to be addressed as part of an overall pain management program.

195     Associate Professor Damodaran thought the plaintiff’s medication may need to be rationalised and psychological therapy needed to be targeted to assist him in improving his functional capacity.

196     Associate Professor Damodaran considered the plaintiff’s current psychiatric treatment was not entirely appropriate and needed to be reviewed, with the current psychological therapy being streamlined.

197     Associate Professor Damodaran thought the plaintiff’s work capacity would not have a great deal of impact, even if the current psychological treatment was ceased, though the plaintiff’s psychiatric treatment was essential in improving his work capacity.  However, he did think that the plaintiff’s symptoms, incapacity and need for treatment was still materially contributed to by the claimed injury.

Lumbar spine – medico-legal

198     Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on 17 December 2014 for the purposes of an AMA assessment.

199     The plaintiff then described pain as being continuous and situated to the left of the midline at the lumbosacral level.  He denied any previous injuries, accidents or claims, and any other unrelated medical problems, illnesses or operations.

200     In terms of diagnosis, Mr Battlay noted the plaintiff claimed ongoing incapacitating low back pain from a direct injury.  Mr Battlay thought the diagnosis was unclear and that the plaintiff had a degree of functional overlay. 

201     Mr David Brownbill, consultant neurosurgeon, first examined the plaintiff in February 2015 at the request of his solicitors.  The plaintiff then complained of constant low back pain that had not improved, fluctuating in severity and being worse with prolonged postures.  There was left leg pain.

202     On examination, active thoracolumbar spinal movements were about a third full in flexion, a few degrees only in extension and half in other directions.  There was generalised lumbar tenderness.  There was no wasting and no neurological abnormality.  There were no signs of radiculopathy.

203     Mr Brownbill noted that radiological investigations had shown pars defect of the L5 vertebra and no other abnormality.

204     On the available information, Mr Brownbill thought the plaintiff sustained some soft tissue damage to structures about the lumbar spine in the incident, perhaps with some initial irritation of mild facet joint arthritic changes giving rise to low back pain.

205     From a physical neurosurgical point of view, Mr Brownbill was not able to explain the described ongoing, unchanging back and left leg pain.  He thought the plaintiff’s demeanour suggested some likely emotional reaction component with depression.

206     Mr Brownbill thought it would be prudent for the plaintiff to avoid heavy lifting and bending and prolonged postures.  From a physical neurosurgical point of view, he thought the plaintiff would be able to return to work in a graded fashion, avoiding strenuous heavy actions.

207     On review in February 2016, the plaintiff again complained of constant low back pain, increased by prolonged postures, and also left leg pain.

208     Examination showed marked restriction of thoracolumbar spinal movement.  There was no objective neurological abnormality of lower limbs and no signs of radiculopathy.  Mr Brownbill confirmed the opinion set out in his earlier report.

209     Having seen the report of the March 2016 MRI scan, Mr Brownbill thought there was no indication to modify his earlier opinion.

210     Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in February 2016. 

211     The plaintiff told Mr Simm he suffered from constant pain, which was getting worse, now making it very difficult for him to sleep.  The pain was located in the left lumbar region, radiating to the buttock, and down to the knee into the heel.

212     Mr Simm noted the September 2015 MRI scan of the lumbar spine, with essentially normal intervertebral discs and undisplaced L5 pars interarticularis defect.

213     Having found inconsistences and non-organic signs on examination, Mr Simm concluded the plaintiff suffered from a Chronic Spinal Pain Syndrome triggered by soft tissue injury.  This occurred against a background of a pre-existing depressive illness, probably related to the plaintiff’s refugee status and the location of his family.  Mr Simm thought the work injury had possibly exacerbated the depressive illness.

214     Mr Simm was not able to establish the diagnosis of an ongoing physical condition of the back likely to cause the plaintiff’s current symptoms and physical signs.  Mr Simm noted that the MRI showed undisplaced spondylosis at L5, which was a common incidental finding, and, more importantly, the discs and other structures seemed to be essentially normal.

215     Mr Simm thought assessment as to whether or not the plaintiff had a current work capacity would be better determined by a psychiatrist.  He did not believe there was any ongoing orthopaedic contribution to the plaintiff’s condition.  Mr Simm considered fear avoidance behaviour associated with the Chronic Spinal Pain Syndrome would probably prevent the plaintiff from attempting any sustained and meaningful physical rehabilitation program.

216     Mr Simm provided a supplementary report, having seen Mr Kossmann’s report, the report from Professor Teddy, the recent 2016 MRI scan, the report of Dr Sullivan of March 2016 and Dr McCallum’s 2016 report.

217     The minimal changes shown on the recent MRI scan, in Mr Simm’s view, could not possibly explain the clinical presentation, but he thought the plaintiff clearly had clinical signs of a Chronic Spinal Pain Syndrome.

218     Mr Simm agreed with Professor Teddy, who stated that, unfortunately, he believed there was relatively little organic basis to the plaintiff’s claim and that the overwhelming influence was of a psychiatric nature.

219     Mr Simm strongly disagreed with Mr Kossmann’s conclusion and considered the plaintiff’s clinical signs and symptoms could not possibly be explained on the basis of the minimal MRI scan findings. 

220     Mr Simm concluded the plaintiff had a Chronic Spinal Pain Syndrome relating to non-organic and/or psychological factors, and not to any identifiable organic pathology.

221     On 20 April 2015, the Medical Panel opined that the plaintiff had a zero percent whole person impairment resulting from the accepted aggravation of pre-existing degenerative changes in the lower back.  It also concluded the plaintiff did not have an accepted injury which had resulted in a total loss. 

Other documents

222     Pursuant to a Return to Work Plan dated 20 May 2013 approved by Dr Hamimi, the plaintiff was to work eight hours a day on light duties.

223     On 14 February 2014, the plaintiff completed a medical report authority for Dr Hamimi to provide his solicitors with a medical report.  A request for such a report was made by Dr Hamimi to Zaparas Lawyers by letter dated 14 February 2014.

Dr Hamimi’s clinical notes 

224     The plaintiff first attended Dr Hamimi on 26 July 2012.  In the history, it was noted that the plaintiff was released from an immigration detention centre and he had problems with epigastric pain.

225     On 6 September 2012, Dr Hamimi noted under “History”:

“Two years psych, poor sleep, early morning wakening, depressed mood, no compulsive behaviours, no suicidal thoughts and no substance abuse”. 

226  Lexapro, 10 milligrams, and Valium, 5 milligrams, were prescribed.

227     On 2 October 2012, Dr Hamimi again noted a depressed mood and reissued the prescriptions.

228     On 5 November 2012, Dr Hamimi noted the same history as on 6 September 2012 and Lexapro was increased from 10 milligrams to 20 milligrams.

229     On 1 December 2012, Dr Hamimi noted the plaintiff was still unwell and had attended for depression and was managed with counselling.  Endep, 10 milligrams, was added.

230     On 18 December 2012, Dr Jabbar noted 25 milligrams of Endep was prescribed.

231     There were subsequent attendances for epigastric pain.

232     On 22 January 2013, Dr Jabbar noted the plaintiff still had problems with epigastric pain and had depression.  The reason for contact was pain and depression.  Lexapro of 20 milligrams was prescribed but then noted to have ceased.

233     The plaintiff attended Dr Hamimi on 27 February 2013 for depression.  He was managed by counselling.  It was then noted Lexapro, 20 milligrams, and Endep, 25 milligrams, were prescribed.

234     On 13 March 2013, the plaintiff saw Dr Jabbar, who noted the plaintiff had pain in his neck, muscular pain and anxiety and depression.  The reason for contact was anxiety and depression.

235     The plaintiff attended on 21 March 2013, when he saw Dr Westmore.  The reason for contact was pain.  Feldene was added to his medication.  It was noted the plaintiff had sore shoulder blades with work in the timber yard and he had a tender trapezius muscle.

236     On 1 April 2013, the plaintiff saw Dr Hamimi, who noted:

“Back pain, hand pain, injured at work, still epigastric pain.” 

237  Voltaren was added to the plaintiff’s medication regime.

238     Throughout April 2013, there were attendances for back pain.  Investigations were arranged and Dr Hamimi provided WorkCover certificates. 

239     Dr Westmore noted in late April 2013, the plaintiff had not attended work since prior to Easter and that he would review him on a plan for light duties the following week.

240     Tramal was added on 26 April 2013.

241     Dr Hamimi mentioned a WorkCover certificate on the 29 April 2013 attendance.  The history then was:

“Back pain, depression, said not able to work, painful bending, walking is hard, pain radiated to the knee.” 

242     Attendances continued over the following months.

243     On 30 October 2013, Dr Hamimi noted there was a long discussion about a return to work.  There were further references to certificates being issued over the following months. 

244     On 4 March 2014, Dr Hamimi noted:

“Back pain and constipation, long discussion to return to work/he refused all the time for light duties, he not accepted, blamed me that I didn’t help him said ‘you forced me to go to work’, said ‘I cannot do light duties’.”

245     On 2 April 2014, Dr Hamimi noted that he discussed the plaintiff’s capacity for light duties:

“He refused to work, arguing a lot/said not able to work a lot.”

246     On 9 May 2014, Dr Hamimi noted the plaintiff was now attending the Dandenong City Clinic. 

247     Under “History”, on 1 October 2014, by Dr Hamimi noted:

“Called the lawyer whether he still medical report or no.”

Employment details

248     Prior to the incident, whilst in the defendant’s employ, the plaintiff worked twelve days for eight hours, three for six hours and was absent on two days in the period between 1 March 2013 and 27 March 2013.

Overview

249     It is not disputed the plaintiff suffered a compensable injury to his lower back in the incident, diagnosed by most medical practitioners as a soft tissue injury to the lumbar spine. 

250     The plaintiff’s claim for weekly payments in relation to this condition was accepted and he received payments for about three months. 

251     Initially, this application was brought pursuant to clause (a) in relation to this lumbar condition and also clause (c), with the plaintiff claiming to have suffered a severe mental impairment.

252     However, ultimately, the application was only brought pursuant to clause (c) for a Chronic Pain Syndrome in terms of the principles enunciated by Ashley AJ in Veljanovska v Socobell Oem Pty Ltd,[49] and also on the basis the plaintiff had suffered a major depressive condition and anxiety state, as a result of the incident injury. 

[49](Supra) at paragraph [7]

Credit

253     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: [50]

“…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.”

[50](2010) 31 VR 1 at paragraph [12]

254     Counsel for the defendant submitted there were issues with the plaintiff’s credit.  It was submitted that the plaintiff was prepared to understate and overstate what suited him in terms of his pre-incident psychiatric condition, ending up conceding that he had been treated by Dr Hamimi with medication for depression prior to the incident.[51]

[51]T60

255     Further, it was submitted the plaintiff had clearly discussed with Dr Hamimi his return to work and certification, despite his denials of having done so and he had become disaffected with Dr Hamimi’s advice that he attempt to return to work and had chosen in those circumstances to seek treatment from another doctor.[52] 

[52]T60

256     On the basis of these matters, it was submitted that the plaintiff was an unreliable witness and his evidence as to his current level of symptomatology should not be accepted, particularly in circumstances where his claimed pain and lack of sleep could not be disproved.[53]

[53]T62

257     In response, it was submitted that the plaintiff was a frank and open witness.[54] He had deposed to problems sleeping and suffering depression before the incident.  Further, sleep and mood difficulties were corroborated by the general practitioner’s clinical notes.[55]

[54]T69

[55]T67

258     Surveillance of the plaintiff was carried out but no film was shown during the hearing.[56]

[56]T74

259     In my view, the plaintiff was not a truthful witness.  He specifically denied or failed to mention his pre-incident psychiatric condition and treatment to all medical examiners subsequent thereto.  Further, as counsel for the defendant submitted, the plaintiff understated his level of psychiatric functioning before the incident, in particular, not mentioning taking Lexapro or Endep in either of his affidavits.[57]

[57]T60

260     I do not accept the plaintiff left Dr Hamimi’s practice because he had to wait too long for appointments.  He did not mention this issue to Dr Hamimi before leaving.  The likelihood was that the plaintiff sought treatment elsewhere because he was unhappy with Dr Hamimi’s advice that he attempt a return to light duties.

Pre-incident psychiatric condition

261     In this case, where there is a pre-existing psychiatric condition as detailed in Dr Hamimi’s notes, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether any additional impairment resulting from the incident is severe and permanent.

262     In Petkovski v Galletti,[58] the Full Court of the Victorian Supreme Court accepted the proposition that:

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”

[58]Supra.  See also AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]

263     The plaintiff in this application, pursuant to clause (c), must therefore establish any incident related aggravation is “severe.”

264     This was a very difficult task for the plaintiff in this case with the unexplained absence of a report from Dr Hamimi as to the plaintiff’s pre-incident condition and the effects of the compensable injury thereon.

265     As counsel for the defendant submitted, there had been an election by the plaintiff’s solicitors not to rely on a report from Dr Hamimi.  Clearly, authority from the plaintiff had been obtained by them for Dr Hamimi to provide a report and a report was requested.  There was, however, no explanation why it had not been provided.[59] 

[59]T51

266     I accept as was submitted by counsel for the defendant that the inference, therefore, is that Dr Hamimi’s view would not have assisted the plaintiff’s case.[60] 

[60]T51

267     As the Full Court of the Supreme Court of Victoria in O’Donnell v Reichard[61] stated:

“Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw the inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact which are open to them upon evidence which has been given, in relation to matters with respect to which the person not called as a witness could have spoken.”

[61](1975) VR 916

268  Further:

“Where the absence as a witness of a person who could give relevant evidence is unexplained, the jury is entitled to draw the inference that such person would have been available to give evidence if required.”[62]

[62](ibid) at 937 per Newton and Norris JJ

269     Dr Hamimi’s notes from September 2012 indicate he and other practitioners in his practise were treating the plaintiff as at the incident date for depression and anxiety and prescribing Lexapro and Endep, with increases in the dosage thereof at various times leading up to the incident.[63]

[63]Lexapro increased from 10 to 20 milligrams on 5 November 2012 and Endep increased from 10 milligrams to 25 milligrams on 18 December 2012

270     It is also apparent from those notes that following the incident, the plaintiff’s anxiety and depression continued.

271     As Windeyer J stated in Jones v Dunkel:[64]

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.”

[64](1959) 101 CLR 298 at 320

272  This rule, as Windeyer J stated, was simply a case of “plain common sense”.[65]

[65]Jones v Dunkel (supra) at 321

273     It may be well assumed that the evidence of Dr Hamimi could have shed some light on the plaintiff’s psychiatric condition as at the time of the incident and its effect on his psychiatric condition subsequent thereto.  In those circumstances, the defendant, as a matter of commonsense, should be entitled to rely on the absence of proof of that treating doctor as a basis to draw an adverse inference that the plaintiff’s solicitors failed to obtain a report from Dr Hamimi and if they had done, and he had given a report, that evidence would probably be unfavourable to the plaintiff.  By not providing a report from Dr Hamimi, the plaintiff was obviously inviting adverse inferences to be drawn from its absence.[66]

[66]O’Donnell v Reichard (supra) at 921

274     Dr Hamimi saw the plaintiff at the relevant times – pre and post incident – and it was reasonable to suppose that he could probably have cleared up vital questions in this case of the plaintiff’s pre-incident psychiatric condition and the relationship of the incident to it thereafter.[67]  Patently, Dr Hamimi should have been able to give this vital information on these matters.[68]

[67](ibid) at 922

[68](ibid) at 924

275     Further, it could be reasonably argued not only that Dr Hamimi’s evidence probably may not have advanced the plaintiff’s case but, rather, tended to lessen the weight of testimony that any psychiatric condition at the present time relating to the incident.[69]

[69](ibid) at 922

276     Counsel for the defendant submitted that the inference was equally available against the defendant as against the plaintiff.[70]

[70]T63

277     However, I reject this submission that evidence from Dr Hamimi could have been called by the defendant.

278     I accept that the power of the plaintiff to call medical witnesses was much stronger than that of the defendant.  As the plaintiff’s previous treater, Dr Hamimi was very much in the plaintiff’s camp and it would be quite unrealistic to regard him as having been available to the defendant as a witness.[71]

[71]O’Donnell v Reichard (supra) at 937

279     Counsel for the plaintiff also submitted that Dr Hamimi’s present views about the plaintiff would not be helpful because he had not seen him since 2014.[72]  However, this submission ignores the relevant evidence Dr Hamimi could have given as to the plaintiff’s pre and post incident psychiatric condition. 

[72]T70

280     Further, counsel for the plaintiff submitted defendant could have provided Dr Hamimi’s notes to its medico-legal examiners.[73] Counsel noted that the failure to provide Dr Damodaran and Dr Mendelson with Dr Hamimi’s notes “speaks volumes, particularly when the underlying material is so ambivalent”.[74]  

[73]T66

[74]T60

281     Counsel for the plaintiff also submitted that there was no evidence that the plaintiff was impaired at work, or suggested he was not able to do his job psychiatrically.[75]  If that was the plaintiff’s pre-incident situation, it would be expected that the defendant would have relied on evidence from employees of the defendant to this effect.[76]

[75]T63-64

[76]T67

282     I also reject these submissions.  The onus is on the plaintiff to show a severe incident-related aggravation and, in my view, this onus has not been discharged.[77]

[77]T74

283     In summary, I accept that Dr Hamimi’s report would not have advanced the plaintiff’s case.  Further, in the absence of this report, the plaintiff cannot discharge his onus on an issue central to this case.

284     An additional difficulty for the plaintiff results from the absence of an accurate history obtained by Dr Yiap and other treaters and all medico-legal examiners who concluded that the plaintiff’s current condition relates to the incident, not having any knowledge of any problems the plaintiff was experiencing psychologically prior thereto.

285     I am mindful of what was said by the Court of Appeal in Dordev v Cowan[78] in relation to the plaintiff’s credit in this type of case.  As Chernov JA said, at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to the question 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.[79]

[78][2006] VSCA 254

[79](ibid) at paragraph [14] per Chernov JA

286     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.

287     As counsel for the defendant submitted, while Dr Hogan describes, in detail, the present medication regime for the plaintiff’s psychiatric condition and his current complaints, there is no expert opinion comparing this situation with that pre incident.  This was particularly relevant when there was a point not far before the incident when the prescription of Lexapro and Endep was significantly increased.[80] 

[80]T52

288     It was submitted that not showing Dr Hogan or other examiners Dr Hamimi’s notes was a deliberate decision by the plaintiff’s advisers.[81]  In those circumstances, one was left with a florid description of a depressive illness which had to be compared to the pre-incident situation of which examiners were unaware.  The picture left with those who were supportive of the plaintiff’s claim was quite wrong.[82]

[81]T53

[82]T53

The nature of the Plaintiff’s pre-existing condition

289     Counsel for the defendant submitted the evidence established the plaintiff had a pre-existing depressive illness under active treatment, with Dr Hamimi’s notes speaking for themselves, including the reference in past history to “2012 depression.”[83]

[83]T50

290     It was submitted there was a significant depressive state with significant loss of sleep[84] and certainly some anxiety leading up to the incident.  There was a problem which required prescription of Lexapro and Endep as at 27 February 2013.[85] 

[84]T17 – acknowledged by the plaintiff

[85]T50

291     Whilst pre-incident the plaintiff had ongoing abdominal pain, and in March 2013 had neck pain, the reason noted for contact at that time was still anxiety and depression.[86]

[86]T50

292     Counsel for the defendant submitted that three weeks of work with the defendant could not support a finding of severe aggravation.  Functionality could not be inferred from that short period of work.  This was not a case where there was a long work history or a long history of demonstrable functionality corroborated by others.[87]

[87]T58

293     In response, it was submitted by counsel for the plaintiff that there was not a pre-existing psychiatric condition of any significance at the time of the incident, as the plaintiff was able, three weeks prior thereto, to return to work. 

294     Further, it was submitted the plaintiff had no problems obtaining a job with the defendant nor did he display any psychiatric problems performing his duties in the three weeks leading up to the incident.

295     It was submitted that it was “an impermissibly long bow to draw”[88] to say what was noted as sleep and depressive symptomatology for a few months pre incident was somehow connected to the plaintiff’s very severe present disability.

[88]T71

296     It was submitted that I should be very comfortably satisfied that the plaintiff had a most moderate degree of symptomatology pre morbidly and, over time, by reason of a reactive depression or reaction to physical injury, has gone on to develop a suite of very debilitating, highly problematic symptoms, which have precluded him from employment and very substantially affected his social and recreational functioning.[89]

[89]T71

297     It was submitted the clinical notes were ambivalent and the defendant was trying to conflate that to being a significant psychiatric injury where all the objective evidence pointed the other way, with no specialist referral.[90]

[90]T60

298     Counsel for the plaintiff submitted that there had been no challenge on the plaintiff’s evidence as to his pre-incident good health and level of functioning in terms of day-to-day and sporting activities. 

299     However, in the circumstances of this case, where the plaintiff was only released from detention some months before seeing Dr Hamimi, in my view, there was little scope for the defendant to take this course.[91]

[91]T66

300     In the absence of further evidence from Dr Hamimi, all that is before the Court are his notes of ongoing treatment for depression and sleep problems and increasing prescription of medication to treat these symptoms as at the time of the incident.

301     Whilst counsel for the plaintiff also relied on the certificates of capacity provided by Dr Hamimi post incident referring to the plaintiff’s lumbar spine condition, these do not shed any further light on the aggravation issue which I must determine.[92]

[92]T72

302     I am unable in the absence of further evidence from Dr Hamimi to make the requisite comparison between the plaintiff’s psychiatric condition pre incident and his condition as at the date of the hearing to assess whether as the present time, any incident related aggravation is severe.

Is the present condition “severe”?

303     The plaintiff’s present psychiatric condition has been diagnosed as a Major Depressive Disorder, an Adjustment Disorder with Depressed Mood and a Chronic Pain Disorder.

304     Counsel for the defendant conceded, on the history to Dr Hogan, he would be “hard-pressed” to say the plaintiff’s present psychiatric impairment is not “severe”. 

305     Although he did not have expert knowledge of the plaintiff’s present medication regime of 100 milligrams of Quetiapine tablets and 200 milligrams of Pristiq, counsel for the defendant thought it “sounded pretty impressive”.[93]  Whilst he did not want to be seen to concede the point, it would be a difficult argument to say the plaintiff’s present psychiatric impairment was not “severe”.[94]

[93]T57

[94]T57

306     However, counsel relied on the view of Professor Mendelson, who it was submitted was well qualified and did not consider the plaintiff’s condition to be severe,[95] and, also, Dr Das, who, following examination in 2014, considered there was then not a psychiatric impairment for employment.[96]

[95]T57

[96]T58

307     Further, there was an absence of any supporting lay affidavit as to the plaintiff’s pre and post-incident condition when it is clear he lived with people in his own community who could provide such evidence.[97]

[97]T50

308     It was submitted by counsel for the defendant that there were constancies in the plaintiff’s life that could well and truly explain a great deal of his symptoms in terms of his separation from his family.[98]

[98]T59

309     Counsel for the plaintiff submitted that there was a dramatic contrast between the plaintiff’s pre-incident complaints and those detailed by Dr Hogan and confirmed by the plaintiff such as suicidal thoughts post incident.[99] The contrast between pre and post-incident psychiatric condition was most marked.[100]

[99]T65

[100]T69

310     The plaintiff’s evidence was unchallenged, in that before injury, he enjoyed good occupational function, good social and recreational functioning.[101] He now has very debilitating symptomatology and a very high dosage of medication.[102]

[101]T66

[102]T71

311     I accept that the plaintiff’s psychiatric presentation to Dr Hogan and other examiners and his current treatment regime meets the higher test of severe.  However, in the absence of an accurate history, there was not the requisite comparison by Dr Hogan or practitioners of the plaintiff’s psychiatric state and treatment in relation thereto prior to the incident with that at present. 

312     Whilst the plaintiff is understandably distressed that his family are still in Pakistan,[103] I am not satisfied that he has been unable to bring his wife and son from Pakistan as a result of any incident-related consequences of the incident. 

[103]T55

313     There is no evidence, absent the incident, that the plaintiff would have been able to sponsor his wife and child to Australia.  Whilst he gave such a history to a couple of doctors, it was not mentioned in his affidavits.  Further, the plaintiff did not make an application for citizenship until two months ago.[104]

[104]T54

314     Significantly, if one left aside Professor Mendelson’s view, it was the unanimous view of all psychiatric specialists that the plaintiff currently has no capacity for employment because of his psychiatric condition.[105]

[105]T63

315     Whilst I am not satisfied the plaintiff has suffered an incident-related aggravation of his pre-existing psychiatric condition that is severe, in my view, he is presently incapacitated for all employment and as such would suffer the requisite loss of earning capacity of 40 per cent.

316 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[106] and Advanced Wire & Cable Pty Ltd v Abdulle.[107]

[106][2009] VSC 454 at paragraph [147]

[107][2009] VSCA 170

317  I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

318     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). 

319     Taking into account all of the evidence, I am not satisfied that any incident-related aggravation is severe and permanent in the complete absence of any analysis of the plaintiff’s pre-incident psychiatric condition by, importantly, his treating general practitioner at the time and also, later treaters and medico-legal examiners. 

320     As counsel for the defendant submitted, it is the plaintiff’s case and it is for him to adduce evidence before the Court as to the differential between the plaintiff’s psychiatric condition now as opposed to before the incident.[108]

[108]T74

321     Accordingly, as the plaintiff has failed to do so, this application is dismissed.

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