Young v Blue Chip Express Pty Ltd
[2011] VCC 1341
•23 September 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
| AT MELBOURNE CIVIL DIVISION SERIOUS INJURY |
Case No.CI-10-02384
| STEPHEN YOUNG | Plaintiff |
| V | |
| BLUE CHIP EXPRESS PTY LTD | Defendant |
---
| JUDGE: | JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30-31 May, 2 June 2011 |
| DATE OF JUDGMENT: | 23 September 2011 |
| CASE MAY BE CITED AS: | Young v Blue Chip Express Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1341 |
REASONS FOR JUDGMENT
---
Catchwords: serious injury application; s.134AB Accident Compensation Act 1985; low back injury; psychological condition; whether “serious injury” under part (a) and/or part (c) of definition as to pain and suffering and loss of earning capacity.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC | Maurice Blackburn Lawyers |
| With Ms M. Pilipasidis | ||
| For the Defendant | Mr R. Stanley Jnr | Herbert Geer |
| HER HONOUR: |
1 Mr Stephen Young seeks leave to bring proceedings for damages in respect of injuries he suffered during his employment as a truck driver with the defendant. To obtain leave he must satisfy the court that he suffered a “serious injury” within the definitions and requirements of s.134AB Accident Compensation Act 1985. He relies on both parts (a) and (c) of the definition of “serious injury”, and seeks leave in respect of both pain and suffering and pecuniary loss damages.
2 The plaintiff claims that during the course of his employment with the defendant as an interstate truck driver, commencing 18 July 2004, and in particular on 9 April 2005, he suffered injury to his low back, including nerve root injury, which has resulted in serious permanent impairment of the function of his lumbar spine.[1] To satisfy the test for a serious injury on this basis, he must establish that the consequences to him of this injury, when judged by comparison with other cases in the range of possible impairments of a body function[2], can be fairly described as being more than significant or marked, and as being at least very considerable.[3]
[1] Claim under part (a) of definition of “serious injury” in s.134AB(17).
[2] S.134AB(38)(b)
[3] S.134AB(38)(c)
3 The plaintiff also claims that, as a result of the injury to his lower back, he has suffered a severe permanent mental or behavioural disturbance or disorder.[4] It is claimed that he has suffered either major depression or a chronic adjustment disorder with chronic depression; chronic pain disorder, and opiate dependence. To satisfy this part of the definition he must establish that the consequences to him of the injury, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, can fairly be described as being more than serious, to the extent of being severe.[5]
[4] Claim under part (c) of definition of serious injury in s.134AB(37)
[5] s134AB(38)(d)
4 For either injury, to obtain leave to claim damages for loss of earning capacity, the plaintiff must establish that such injury has resulted in a permanent loss of earning capacity of 40% or more[6]. That must be measured by comparing the greater of his gross income actually earned since the injury, or of which he is capable of earning in suitable employment, with the gross income which he was or was capable of earning had the injury not occurred. The latter is to be assessed in light of his earnings for the 3 years before and after injury[7]. The plaintiff’s case is that he is totally and permanently incapacitated from suitable employment as a result of either or both his physical and psychological injuries.
[6] s134AB(38)(e)
[7] s134AB(38)(f) s134AB(38)(
5 The defendant argues:
(i)
that medical evidence as to diagnosis of a physical injury to his lower back has been “somewhat confused”;
(ii)
that the plaintiff’s credibility is doubtful and the court should be wary of accepting his version of the extent of his incapacities, and the weight given to medical opinion should be discounted due to its reliance on his description of his symptoms and extent of incapacity;
(iii)
that any current consequences of an organic injury to his lower back are not serious enough to meet the test of “at least very considerable”, and further are not likely to be permanent;
(iv)
that although it is conceded he suffered some depression as a result of his physical injury, this was an aggravation of a pre-existing condition so only the marginal worsening can be taken into account;
(v)
that his psychological condition has stabilised and improved, and does not fairly reach the description of permanently “severe”;
(vi)
that neither physically nor psychologically is he incapacitated from earning at least 60 per cent of his pre-injury earnings.
6 The evidence consisted of the documents set out in attached schedule (including five DVDs of filmed surveillance), the oral evidence of the plaintiff and of his wife, and of Dr Clayton Thomas, all of whom were required to attend for cross-examination.
7 As in most cases of this nature, the credibility and reliability of the plaintiff as a witness is very important, as not only the court, but doctors whose opinions are in evidence, are dependent on the reliability of the plaintiff’s version of the timing and extent of symptoms and of their impact on his activities and lifestyle.
8 The defendant attacks the plaintiff’s credit in this case. It relies primarily on video surveillance which it argues shows him more active than he describes. The other basis for attacking his credibility is that he had not mentioned in his affidavit nor to doctors that he had any previous treatment for depression, whereas the defendant argues that certain entries in his doctor’s records indicate that that was wrong. I deal with the evidence on those substantive issues later in these reasons, but I did not find either to be significant blemishes on his overall credibility.
9 Overall, my impression of the plaintiff was that he was genuinely trying to tell the truth in his answers. I did not think that he was deliberately exaggerating his symptoms or embellishing details. I find that he is confused about some matters, but that is consistent with medical evidence as to his psychological condition. Overall, I have accepted his evidence as reliable, although where there is some doubt I have looked for other supporting evidence.
10 The defendant also required Mrs Young to attend for cross-examination. She impressed me as having much insight as well as sympathy as to her husband’s condition, with the added experience from her nursing background. Notwithstanding that it may be assumed that as his wife she has an interest to support his case, I found her answers genuine and sensible, and without exaggeration, and I have no hesitation in accepting her evidence as reliable.
Findings of fact as to plaintiff’s relevant background and personal circumstances
11 The plaintiff is now aged 45. He left school after Year 10, aged 16, started at labouring jobs, then once licensed became an interstate truck driver. He worked for a variety of companies prior to commencing with the defendant in July 2004. At some jobs he did local or regional deliveries, but most of his duties, including those with the defendant, involved driving B-Doubles and semi-trailers between Melbourne and Sydney.
12 Mr Young is married with three children, the youngest of whom is still at school. His wife is a registered nurse. Prior to the injuries the subject of this application he spent much of the week away from home due to the nature of his work. When at home he actively participated in activities with his wife and children, maintained the garden, and carried out home maintenance tasks when needed. He had no formal trade training but enjoyed working with wood, and would perform other maintenance on the family home.
13 He was a keen dirt-bike rider, as are the other members of his family, and his wife and children still engage in that activity. He has considerable mechanical knowledge of motorbikes, and used to help friends and his children to repair and maintain their bikes. He used to go camping and bushwalking with his family.
14 He liked to work alone, truck-driving, but enjoyed the company of his family and of friends when not at work.
15 Prior to commencing employment with the defendant he was in good physical health with no particular prior injuries or conditions causing any problems.
16 He has told medical examiners in relation to this case, as well as his treating specialists, that he had no prior psychiatric history or psychological conditions. The defendant argues that this is untrue, based on entries in his general practitioner’s clinical notes[8]. Those record that he attended the practice on four occasions over a three week period in May and June 2004, in relation to what he described to the doctor as “stress from work”. The records show he saw Dr Merigan who recorded this initially as “stress”, then as “stress and depression”, initially prescribed Temaze then Aropax, and last recorded on 7 June 2004 that Mr Young was experiencing high frustration and poor tolerance levels at work, but that Aropax should soon be working. Dr Merigan recorded the diagnosis as “anxiety/depression”.
[8] Relevant pages extracted – Exhibit 1
17 The plaintiff denied any memory of receiving medication at that stage. He recalled attending the doctor for what he called “stress” from work circumstances – those including having worked 15 weeks straight driving 1000kms per night without a day off, while also trying to support a friend at work whose mother had died and who subsequently suffered injury in a trucking accident. He agreed that he had attended his local doctor as recorded over a three week period, some two months before he commenced employment with the defendant.
18 Assessing his evidence during cross-examination on this matter, I accept his explanation that he genuinely did not regard those visits to his general practitioner as relating to his subsequent psychological conditions, and in particular that he did not regard himself as suffering from depression or anxiety at that time. I accept that from his perceptions, the mental condition that developed after his back injury still puts that prior short-term episode into a context that he does not regard as one of clinical depression or anxiety.
19 From the doctors’ clinic notes, I am satisfied that Mr Young had not reported any such condition affecting him over the previous two years (that is two years prior to May 2004). Nor, after the 3 week period in mid 2004, had there been further attendances for it during the 11 months leading up to the events that give rise to this claim. Dr Merigan, the general practitioner he attended at that time, has been his main treating general practitioner since 2007, and has not mentioned the prior episode in his reports. Nor has he apparently mentioned it in referrals to either treating psychiatrist, Dr Kumar or Dr Camilleri, nor to the treating psychologist. I infer from this that Dr Merigan has not regarded the 2004 episode as being relevant to the subsequent psychiatric condition.
20 I am satisfied that that condition in May/June 2004 had no ongoing incapacitating effect on Mr young’s ability to work or to participate in his domestic life and activities, and therefore does not require an examination of the marginal worsening as if it had been an aggravation of a pre-existing condition[9]. At most it was a short-term episode of anxiety and depression indicating some vulnerability to other stressors. I am satisfied that its omission does not undermine the reliability of the medical opinions as to the mental disorder suffered by the plaintiff as a result of his work injury.
[9] ie Petkovski v Galletti does not apply
The work injury
21 The plaintiff says, unchallenged, that in the course of his employment with the defendant he developed low back pain as a result of the driver’s seating arrangement in the truck he drove. There was a broken seat, which was replaced, but still unsatisfactory, causing him to tilt to the left over sustained periods while driving. He experienced pain intermittently which became more frequent over the two to three months leading up to April 2005. Then, on 8 or 9 April 2005[10], as he was driving to Holbrook for a truck changeover as part of his duties, he stopped to fix an airbag and developed such severe pain in his low back and his left leg that he was reduced, on arrival at Holbrook, to collapsing to his knees and vomiting.
[10] Many doctors records it as 8 April, but it seems to have been an overnight run, and nothing turns on the difference in date.
22 He says, unchallenged, that it took considerable time before he could climb back into the cabin of a vehicle, and this was reported to another driver who contacted the employer, and it was arranged for another driver to travel to Holbrook, relieve him of driving, and to drive him back to Melbourne. He was in acute pain at home over the weekend, where his wife, a registered nurse, tended to him.
Treatment and ongoing symptoms
23 He attended his general practitioner’s practice the following Monday, 11 April 2005. He was seen by Dr Karen Ting, who diagnosed acute sciatica on his left side, and “likely disc prolapse”[11]. He was subsequently treated at that clinic by Dr Des Darrer. He underwent hydrotherapy and chiropractic treatment, used crutches for support to walk, and was prescribed anti- inflammatory and analgesic medication.
[11] Exhibit 1 – entry for 11 April 2005
24 When the pain in his back and left leg continued, Dr Darrer arranged a CT scan of his lumbar spine and then an MRI. The radiological reports on these were considered by Dr Darrer to be basically normal. However, one of his colleagues, Dr Merigan, who took over treatment of the plaintiff in October 2007, describes the CT as showing an acute disc protrusion at the L4/5 region compromising the L3 existing nerve root, and that that was confirmed on MRI[12].
[12] Exhibit 3
25 Some five weeks after the injury, Dr Darrer referred the plaintiff to a neurosurgeon, Mr Pullar, for opinion. Mr Pullar noted that Mr Young was suffering quite severe sciatica, which showed improvement with oral steroids, but overall he was still in significant pain. His view of the MRI scan of May 2005 was that it showed some minor disc abnormalities at L3/4 and L4/5, but there did not appear to be a major disc herniation, although there was a suggestion by the radiologist of a very small left paracentral L4/5 disc herniation. Mr Pullar did not consider that surgical intervention would be required, but recommended a lumbar epidural injection of local anaesthetic and steroids. This occurred in June 2005, and gave the plaintiff some improvement. However, he continued to have some sciatic pain, and Mr Pullar, writing to Dr Darrer in June 2005, thought that the good response to the epidural injection confirmed that there was still a significant inflammatory component to the problem, and suggested that if the plaintiff plateaued at an unacceptable level, it would be worth considering a myelogram with post- myelographic CT scan to resolve whether or not there was a disc prolapse. He thought at that stage that the plaintiff would slowly continue to improve[13].
[13] Exhibit D, report 16 June 2005
26 In September 2005, Mr Pullar recommended a lumbar myelogram, which was performed. In December 2005, on reviewing the plaintiff after the myelogram and CT scan, he believed that it did not demonstrate any significant disc prolapse at the L4/5 segment, and the previous swollen left L5 nerve root now seemed relatively normal. He thought that the plaintiff was improving clinically, but if his recovery stagnated it would be worth repeating the epidural injection.
27 In June 2005 Dr Darrer certified Mr Young as fit for some alternative duties, but the employer would not provide anything short of full duties. Dr Darrer did not consider him capable of driving a truck - indeed considered it would be dangerous[14] - so he remained off work. At that stage Mr Young was still using crutches to walk, but was also saying that he was keen to return to work. Dr Darrer considered him highly motivated to get better, and to get back to work as soon as possible, and specifically assessed him as unlikely to develop a chronic pain syndrome[15]. He prescribed medication for pain, and there was continuation of chiropractic and hydrotherapy treatments.
[14] Exhibit 4, report 29/6/05
[15] Exhibit 4, report 19/5/05
28 During 2006, as pain and disability persisted, Mr Young became depressed. According to his wife he was not coping physically or mentally, was falling deeper and deeper into depression to the point where she feared she would come home from work and find him dead[16], would sometimes ask his father to sit in the house if she was at work, and she thought that this was at a time under Dr Darrer that nothing was being done.
[16] T 240, lines 6-17
29 In June 2006 Mr Pullar was asked by the plaintiff’s chiropractor to review the plaintiff for possible surgical intervention. He thought surgery was not likely to help in the absence of significant nerve root impingement. He considered the appropriate management was physical therapy with intermittent use of epidural injection if there were aggravations of pain. Although there was still back pain and some left leg symptoms (improved since December 2005), and there was still some “coldness” in the leg, which he thought may reflect some lingering nerve root dysfunction, Mr Pullar felt the previous left L5 nerve root signs had resolved[17].
[17] Ex D, report 22 June 2006
30 As time progressed without improvement, Mr Young’s mental state led him also into excessive alcohol drinking, smoking and coffee intake. I accept that alcohol had not previously been a problem for him, because as an interstate truck driver he had to have zero alcohol in his blood. On his wife’s ultimatum he stopped the alcohol drinking – but still smokes heavily. He now drinks pineapple juice instead of coffee. His wife does not agree that this helped him cope with his pain, but his behaviour is more controlled. He still does not have a regular night’s sleep, she often finds him sitting in the dark, maybe massaging his leg, and when stressed such as overnight during the court hearing he cannot sleep at all.[18]
[18] T 241-242
31 In the first year or 18 months after his injury Mr Young attended a program at The Victorian Rehabilitation Centre but its detail is unclear – possibly the sprains and strains program. He also attended and co-operated with all consultants to whom he was referred by Workcover. There does not appear to have been any attempt to organise light duties or a graduated return to work plan for him.
32 From October 2007 the plaintiff’s regular treatment was taken over from Dr Darrer by Dr Merigan at the same general practice. The defendant suggests that this was because Mr Young did not like the fact that Dr Darrer was certifying him fit for alternative duties. I am not satisfied that any inference adverse to the plaintiff is open from the fact that he transferred within the same practice into the care of another doctor who had in fact treated him before the subject injury.
33 In November 2007, Mr Young underwent a further epidural injection, which gave pain relief for about a month.
34 Dr Merigan considered that the plaintiff had developed symptoms of depression as a result of his physical injury, and referred him to a clinical psychologist for treatment. Dr Merigan prescribed continuing strong medication for pain, and also Aropax . Mr Young was also having difficulty urinating, and maintaining an erection, and was prescribed medication for these conditions.
35 He underwent a third epidural injection in March 2008, with some benefit but only for days[19].
[19] Exhibit A – Plaintiff’s affidavit para 25, but it is unclear which doctor performed or recommended this.
36 The plaintiff continued to suffer pain in his back and left leg, with the leg going numb causing him to be unable to stand unaided. He had difficulty sleeping, and remained very depressed and frustrated and lacking in confidence. He says that at times he has had thoughts of suicide, but his family keeps him from doing such a thing.
37 In March 2009 he was referred to Dr Kumar, clinical psychiatrist, whom he saw approximately fortnightly until February 2010. Dr Kumar diagnosed major depressive disorder, and when conservative treatment did not achieve improvement, Dr Kumar recommended electro convulsive therapy (“ECT”). Mr Young, although worried by it accepted this recommendation, and was admitted to hospital for its performance, but the anaesthetist said it was too risky to his chronic back condition and further anaesthetic opinion agreed. Dr Kumar could not offer further recommendations for treatment, so the plaintiff left his care, and some months later commenced to see another psychiatrist, Dr Camilleri, who had given a second opinion about ECT.
38 D Camilleri continues to treat the plaintiff. He changed the medication, and recommended continuation of the program at Victorian Rehabilitation Centre. Dr Camilleri diagnoses Major Depression, chronic pain syndrome, and opiate addiction.
39 Dr Clayton Thomas, who had already provided medico-legal assessment[20], saw Mr Young in a treating capacity after referral from Dr Merigan in April 2010. At that stage he was limping and had wasting of his left leg, both at the quadriceps and calf level, and Dr Thomas referred him to The Victorian Rehabiliation Centre for a pain management program. In June 2010 on review he recommended that he wean off his Durogesic medication, but over the following months he had withdrawal symptoms on that reduction and required medication, Catapres, for those. He underwent a 10 week multi- disciplinary pain management program, including physiotherapy and psychological counselling.
[20] Exhibit F, report of 15/4/08
40 Mr Young’s current medication is Kapanol (90mg x 2) with Catapres to help with withdrawal symptoms; Seroquil for nerves, Endone virtually every day; Voltaren, Panadeine forte, Prednisolone, and valium but not as much now. He sees Dr Merigan weekly, Dr Camilleri monthly, and Dr Clayton Thomas every 2 to 3 months.
41 His activities are very limited, and he spends most of his time at home, at best occupying himself with tasks his wife gives him to keep him occupied. An example she gave was if she is at work and has made lasagne for dinner she will ask him to put it in the oven at a certain time. She will also send him out for milk and bread, or to Bunnings which is about 5 minutes’ drive away. She encouraged him to buy some wood and sandpaper knowing his enjoyment of woodwork, and he also bought a piece of aluminium which he polished. This was seen as he walked from Bunnings under surveillance. He does drive over modest distances, such as regularly visiting his father who lives about seven kilometres away. Some days he drives to collect his daughter from the bus stop.
42 There have been a couple of attempts at family camping trips since his injury, but with very restricted activity depending on how he was coping, and taking extra layers of mattress and other comforts for his back. There has been one day-trip to Gembrook, for which he drove the half hour journey. He has not been dirt-biking since his injury. He volunteered that on one occasion when they had gone on a family outing, he tried riding his daughter’s dirt-bike in the carpark. He has not been able to help either his children or friends with mechanical repairs on their motor bikes.
43 One of the surveillance films showed him in the driver’s seat of his four wheel drive vehicle, with a trailer carrying a motor bike, and then walking to the back and watching his son deal with the bike on the trailer. He said and I accept that that was for his son to take the bike to be registered. To my observation he did not appear to move at a pace or with the agility which would be expected of a person undertaking driving tasks for a living. I accept his description and explanation of this occasion, and in my view it is consistent with a man suffering very significant disablement but attempting some activity for his own good and to assist his son.
44 The surveillance film which in my view was most at variance with his descriptions in court or to doctors of the limitations on his movements, was taken in February this year, of him bending and then squatting in front of a shelf in Bunnings. He explained that he could do this because he knew the shelf was in front of him for support. I did not find that explanation wholly explanatory, as he was able to squat down and then rise without support, and also to move in the squatting position. Nevertheless, I am satisfied that there is a vast difference between being able on occasion to perform that movement, and being able to sustain movements sufficiently frequently to maintain paid employment.
45 There was improvement after the pain management program he underwent last year, but his wife says he has regressed since then. She says he does have good days, when he smiles and enjoys what he is doing, but good days are unpredictable and much fewer than others, and if on a good day he does more activity it is usually followed by a bad day where he sits on the couch and does little but watch TV.
46 He is no longer able to do the gardening which he used to enjoy. He tried mowing the lawn, but took hours, and now his wife does it.
Medical opinion as to back injury
47 Dr Merigan, the plaintiff’s current general practitioner, diagnoses an acute left sided disc prolapse at the L4-5 region, that damaged the L3 exiting nerve root. He believes this has caused acute pain, and acute neurological wasting of the muscles of the thigh and calf, consistent with acute nerve lesion, and loss of reflexes. His view is that the injury causes significant daily pain and lack of function, and that the plaintiff has also developed reflex sympathetic dystrophy causing his foot to turn blue and become very cold and painful. He considers the condition chronic and stable with little likelihood of improvement with the nerve now permanently damaged and RSD symptoms present[21].
[21] Exhibits B and 3
48 Mr Pullar’s opinion has already been outlined.
49 Dr PD Clark has provided a number of reports to the defendant[22]. On his first examination, in May 2006[23], notwithstanding that Dr Clark described Mr Young as “feigning” a limp from time to time without explaining why it was not considered genuine, he described on examination palpable spasm of the left para-spinal muscles in the mid-lumbar region, and found measurable wasting of the left thigh and calf when compared with the right, and reduced sensation in his left calf and the dorsum of his left foot and weakness of left foot extensors. His diagnosis was residual symptoms and signs of a lumbar disc injury with radiculopathy, and he felt him unfit for his pre-injury duties. He thought he could do sedentary office based duties if such were available to him, but was not provided with any Return to Work plan, and thought continued chiropractic treatment, and a pain management program or counselling to “move him on” would be appropriate. He felt it too soon to tell whether Mr Young would be able to resume long distance driving, and that he may be incapacitated indefinitely for his pre-injury duties. He said he had a capacity for suitable work if it is available, but without any comment on his educational qualifications for sedentary office work or what else might be “suitable”. He commented in further correspondence that there are few occupations as sedentary as that of a driver and also thought he could be a forklift driver or transport despatch clerk[24]
[22] Exhibt 8.
[23] Exhibit 8 – report 17/5/06
[24] Report of 29/8/06
50 On further examination in February 2007, there was no local tenderness on spinal palpation and no muscle spasm, but Dr Clark thought that there was as previously clinical evidence of radiculopathy affecting the left leg. Mr Young he was still taking Tramal twice daily and three daily Panadeine forte, and Dr Clark’s opinion was that he had chronic back pain caused by a work-related lumbar disc injury that had not yet resolved fully. He did not think him fit for pre-injury duties but that he did have work capacity for the role of transport and dispatch clerk. He noted that Mr Young wanted to find suitable work as a driver and was not motivated to look for alternatives. There was still no return to work plan offered.
51 On his third examination, in May 2008, Mr Young developed acute, severe left leg spasm during the course of the examination, which persisted for over 15 minutes and was accompanied by mottling and temporary discolouration of his left foot consistent with reflex sympathetic dystrophy. His left knee and ankle reflexes were absent, and he displayed weakness of his left foot extensors before his left leg spasm precluded further assessment. Dr Clark was also of the view that Mr Young was clinically depressed. He concluded that he was suffering from chronic mechanical back and leg pain, left sciatica with valid clinical evidence of radiculopathy, and reflex sympathetic dystrophy affecting his left leg, relevant to the claimed work injury. He thought the short and long term prognosis was poor, his condition had deteriorated over the time that he had assessed him and he was not fit for any work.[25]
[25] Exhibit 8 – Report 8 May 2008
52 In August 2008 Dr Clark was asked to comment on video surveillance of the plaintiff. He said there was a disparity between Mr Young’s physical capacities at the time of examination and at the times of the surveillance, and that in the surveillance he showed far greater functional capacity than was evident at the time of examination. He also notes that in some clothing it could be seen that he was not wearing the leg supports he wore at examinations. However, Dr Clark also noted that comparing video evidence with clinical findings is always difficult because of the separation of time and circumstances, and even after seeing the surveillance he still did not consider him fit to resume interstate truck driving, and ultimately said that he “ he may have a physical capacity for suitable duties. His mental state should also be considered.”
53 Dr David Elder, consultant in occupational and environmental medicine, provided an assessment for the defendant in August 2008[26], but it was mainly as to whether there were symptoms due to injuries in addition to those already accepted[27]. He interpreted the loss of sensation along the whole left leg as due to non-organic cause, and found no evidence of CRPS type 1 or 2 or of radiculopathy. He did measure wasting in the left thigh and calf of 1.5cm, but did not believe it to be evidence of radiculopathy. He thought there were no radiological features of neural compression. His opinion was that there was no primary medical condition causing the insomnia, no clinical findings supporting a diagnosis of reflex sympathetic dystrophy, and that the totality of his symptomatology can be assessed with reference to the accepted back injury with referred pain to the left and right buttocks, hips legs and groin.
[26] Exhibit 6
[27] Nausea and heartburn
54 In April 2008 Mr Young was assessed by Dr Clayton Thomas, consultant in rehabilitation and pain management[28]. Dr Thomas noted Mr Young’s complaints of pain in the lower back and left leg, and on examination that he reported no sensation to toothpick to the whole of his left leg to the groin, had 2cm wasting in his left thigh and calf, but normal reflexes. Dr Thomas thought it was not possible to determine what the cause for his left leg pain was, as it was possible nerve root compression, in which case there would usually be more hard abnormal neurological signs, referred pain, or nerve root irritation. He accepted that the onset of back pain was likely to be from prolonged exposure to poor seat asymmetry. He considered that there were both organic and non organic components to the presentation, but that these made him totally incapacitated for work at the time. He recommended a pain management program but did not expect it to improve the overall prognosis of persistent pain and disability.
[28] Exhibit F, report o15/4/08
55 Dr Thomas then treated Mr Young from mid 2010, and referred him for a multi-disciplinary rehabilitation program. During the course of that he considered him to be opioid dependent, having been placed on very strong opioid analgesics which had not improved his condition, and he recommended a progressive weaning of him off those. He considered that there were both organic and non organic components present. He found it difficult to know the cause of his left leg wasting, measured by him at 2.5 cms at the calf. He reviewed him after a multi-disciplinary meeting on 7 December 2010, when there was still wasting of his left leg, marked mechanical allodynia (tenderness to thumb pressure), worse on the left than right of the lower back, and also reduced sensation to sharp toothpick in his lower back. This suggested either a neuropathic pain condition or a centralised pain syndrome. Adjustments to medications were made.
56 Dr Thomas was asked in his last report[29], and in his oral evidence, to untangle the organic from the non organic condition. His view is that there is undoubtedly an organic problem here[30], as the wasting of the left thigh was clearly organic in nature, and he thought it due to some form of nerve root problem relating to the lumbar spine. Another positive sign was straight leg raising, including in the sitting position[31]. His view was that the high doses of opiate analgesia may have affected cognition. He thought this is not a case of non organic factors driving his problem, but this is a case in which there are nonetheless non organic factors, which he thought appeared to be in proportion to the severity of his pain and disability.
[29] Exhibit F, 10/2/11
[30] T 252, l 22 – T253, l 6
[31] T 287,l14-21
57 Dr Thomas had viewed the surveillance tapes before giving oral evidence. Nothing in those altered his opinion as to the plaintiff’s disability.
58 On cross-examination, he agreed that in April 2008 he had not taken a history of the plaintiff drinking alcohol or coffee to excess. He also accepted that in the video surveillance taken in mid April 2008 as Mr Young walked from his car into a chemist, he was not seen wearing the tubigrip or elastic bandage support on his leg, or limping or as restricted in lumbar movement, and appeared to have good mobility which was not consistent with his recent examination. Dr Thomas said that from the organic point of view he was not surprised that the plaintiff could do what he could do on the DVDs[32].
[32] T 26, l13-20
59 Dr Thomas agreed that the radiology was unremarkable and not at all diagnostic. He was invited to agree that both the patient’s descriptions and physical examination depended on the reliability of the plaintiff’s complaints, and that in this case they were not reliable. However, Dr Thomas said that there were ongoing organic signs, and non organic findings on examination diminished in time. If he was purely non-organic Dr Thomas would not have remained involved in his care[33]. Dr Thomas did not change from his opinion that there is definitely an organic basis for the plaintiff’s condition, and that although there are non organic features also, these are not disproportionate.
[33] T 271, l 26-31
60 Associate Professor Warren Boling, Neurosurgeon, assessed Mr Young for a medico-legal report in February 2011[34]. He did not see any radiology, but from descriptions to him from Mr Young, and a letter of Dr Clayton Thomas (15/4/08), and his findings on examination which included numbness in the outer aspect of the left leg, his diagnosis was of discogenic disease of the spine and left-sided radiculopathy. He thought the history of inadequate seating in a long haul truck a reasonable aetiology for causing and/or aggravating a disc disease and for radiculopathy. He thought Mr Young unlikely to be able to return to any work into the foreseeable future, given his relatively low level of education and lack of skills outside truck driving and labouring work.
[34] Exhibit K
61 Mr Geoffrey Klug, Neurosurgeon, examined the plaintiff for a medico-legal report to the Defendant in April 2011[35]. On examination there was restriction of movements of the lumbar spine attributed to feelings of pain and stiffness, and muscle wasting in the left leg, being 2.5cms in the calf and 1.5cms in the thigh, compared to the right. Reflexes appeared present and normal, but there was abnormal sensory perception to stimuli in the left leg. He was not convinced that there was alteration in temperature or colour between the two limbs. Mr Klug considered reports from Mr Pullar, and Professor Boling and of Dr Merigan.
[35] Exhibit M
62 Mr Klug’s opinion was that a precise diagnosis of the plaintiff’s condition was difficult. On the basis that he detected evidence of impaired function of the lumbar spine, and wasting in the left leg although not other neurological alterations in function, his opinion was that the plaintiff suffers from symptomatic lumbar spondylosis with resulting low back pain with spread of pain into the left leg and some impaired neurological function in that leg, but also a substantial psychological disturbance contributing to his overall presentation. He considered the short and long term prognosis poor, with treatment options limited. He accepted that from both the physical and functional point of view he appears to be severely disabled, and that it would not be possible for him to undertake alternate types of employment compatible with his pre-injury employment and background. He agreed with Dr Clayton Thomas’s opinions in his report dated 9/2/11.
63 Mr Michael Shannon, consulting surgeon, examined the plaintiff for the defendant in June 2008[36] and April 2011[37]. On first examination Mr Shannon did not really find evidence of nerve root damage or reflex sympathetic dystrophy, but did accept that he had sustained aggravation of lumbar disc degeneration with possibly a small disc protrusion, but also a significant functional overlay. He accepted that a broken seat in his truck had probably been a significant contributing factor, that the prognosis was poor and that he was not capable of performing pre-injury duties, although from a purely physical point of view would have been capable of light work.
[36] Exhibit 9
[37] Exhibit N
64 On examination in April 2011, he was wearing a back support, and an elastic support on the left calf for warmth. There was about one third restriction of thoracolumbar movements, and there was 2 cm of wasting of the lower leg although reflexes were brisk. He noted some changes in Mr Young’s physical signs since the previous examination, in that his range of movement and independence in dressing and undressing had improved, but the lower leg wasting was consistent with sciatica. He considered that he was suffering from mechanical back pain associated with lumbar disc degeneration but some evidence of nerve root irritation and overwhelming both of these is a chronic pain syndrome. Mr Shannon disagreed with some of his medication regime, but accepted that he had permanent incapacity for significant physical work, which he felt related in part to the chronic pain syndrome as opposed to the physical organic injury, and that the prognosis was poor.
Has the plaintiff suffered a “serious injury” under part (a) of definition?
65 I am satisfied that the plaintiff suffered injury to his low back as a result of his driving duties with the defendant. Notwithstanding that Mr Klug and Dr Thomas say that the precise diagnosis is hard to determine, it does not follow as submitted by defendant’s counsel that I should not be comfortable that there would be a long-term incapacity on no clear diagnosis. Both Mr Klug and Dr Thomas conclude that there is likely to be long term incapacity from an organic injury despite their hesitation about precise diagnosis, and despite both acknowledging that there are non-organic features also present.
66 I accept from both of their evidence as well as that of Mr Pullar, Mr Shannon, Professor Boling, and Doctors Clark and Merigan, that there was an organic injury to the plaintiff’s lumbar spine which included some damage to a lumbar disc and probably to a spinal nerve root – the L4/5 disc and L3 nerve root is mentioned by some- and that there are some signs of radiculopathy in his left leg. I am satisfied that even if inflammation to the nerve root resolved, as described by Mr Pullar, there are persisting symptoms of such injury.
67 There is no doubt that Mr Young has also suffered a psychological reaction to his physical injury, and that “non organic” factors have affected his perceptions and descriptions of his symptoms and their impact on him. However I am satisfied that the vast preponderance of medical evidence supports there being ongoing significant consequences from the organic injury. I am satisfied that Mr Young has suffered very significant back pain and left leg pain, and also some sensory abnormality and weakness in his left leg. The muscle wasting at both thigh and calf level is accepted by most of the doctors as objective evidence of some nerve root injury in this case, and Dr Thomas couples that with positive signs on straight leg raising.
68 The observations of Dr Clark as to the left leg spasm and change of colour in the foot, during examination on 7 May 2008, go a long way towards supporting a diagnosis of complex regional pain syndrome, which Dr Clark did diagnose as a result, as does Dr Merigan, but it is unnecessary for me to decide here whether that condition has also resulted or persists. In my view, however, the observations of Dr Clark, who was retained for opinion by the defendant, goes a very long way to overcoming the arguments from the defendant that I should not accept the plaintiff as credible when he complains of his extent of pain and symptoms.
69 I have also taken into account the evidence of the plaintiff’s wife. I am satisfied that until he suffered acute and severe pain in his back in April 2005 he had been an active hard-working man, and that the change brought about by his injury had quite devastating impact on his life, both in relation to the pain and other symptoms, and in undermining his ability to support his family, both financially and physically, and to actively participate in family activities including their shared enthusiasm for trail bike riding.
70 I am satisfied that the plaintiff is now unable or very significantly limited in doing most of the household and family activities in which he used to engage and which he enjoyed doing with or for his family. He can no longer perform the useful household maintenance tasks he did, and attempts to keep him occupied by sanding some wood or polishing a piece of aluminium emphasise the loss of his previous productive abilities. He can no longer maintain the garden. He cannot ride trail bikes or help his children or friends with their mechanical repairs.
71 I am satisfied that the consequences to the plaintiff of the injury to his low back, in pain, weakness in the left leg, need for significant medication and its effects, undergoing about four epidural injections, and loss of ability to physically and financially support and engage in activities with his family, can fairly be described as “more than significant or marked” and as at least very considerable, when compared with other possible impairments of body function. I am satisfied that the injury to his low back was a serious injury as to pain and suffering.
Loss of earning capacity
72 The plaintiff bears the onus of proving that he is currently incapacitated in his earnings and likely to be so permanently, to the extent of at least 40 per cent of his pre-injury earning capacity. He has not in fact worked since the back injury in April 2005, so the issue is whether he is now capable of suitable employment, or could become so with reasonable retraining or rehabilitation.
73 I am satisfied that every doctor giving an opinion on physical capacity found Mr Young unfit for his pre-injury duties, and all who have seen him in the last two years regard him as unlikely ever to be fit to return to interstate truck driving. Interstate truck driving was essentially the only occupation he had had for more than 20 years - since turning 18.
74 The only figures in evidence as to the plaintiff’s actual pre-injury earnings[38] were not the subject of submissions as to an appropriate figure to reach under s134AB(38)(f). He seems to have earned approximately $51,500 gross for the last two completed financial years. His total gross income for the year in which he was injured in April was $42,200, and less during the following two full financial years, but as none of that was “earned” and would have been dependent on workcover rules, it should not in my opinion be used in any average. The best I can make of these figures is to assess that he would have been earning upwards of $51,000 if continuing in full-time employment as an interstate truck driver. I approach the issue of his lost capacity as it has been approached by the parties, in general terms as to whether he has capacity for alternative suitable employment.
[38] Exhibit R
75 Ms Margaret Leitch of Evidex provided a vocational assessment for the plaintiff’s solicitors[39]. She accepted that due to the effects of his injury he does not have capacity to return to his pre-injury occupation as an interstate truck driver, and concluded that he no longer has the capacity to perform the common tasks of any other occupation for which he is qualified or has work experience. His alternative vocational options were explored, and it was found that he has very few transferable skills for a new occupation with low physical functioning demands, and that with a low level of formal education, no vocational qualifications for alternative employment, and no vocationally useful administrative skills, there were no alternative occupations where the inherent job requirements were within his functional capacity.
[39] Exhibit O
76 Ms Leitch concluded that occupational rehabilitation or retraining in the future is unlikely to lead to a suitable recognised occupation in the open labour market for him. She specified that these were her conclusions leaving aside the psychological consequences of Mr Young’s lower back injury.
77 The defendant tendered significantly outdated reports from Konekt Workplace Solutions[40], which provided an initial workplace assessment in early January 2006, and what was called a 104 Week Vocational Assessment in August 2006[41] . It was accepted that medical opinion was to the effect that Mr Young was not fit to resume interstate truck driving, the only occupation he had had since age 18. However, based on the certificates of Dr Darrer and the initial report of Dr Clark, it was said that suitable employment options of which he was capable (or would be after retraining) were that of driver (not long distance and part time pending recovery of injury), transport and dispatch clerk, and forklift driver, these apparently derived from the suggestions of Dr Clark.
[40] Exhibit 11
[41] 68 and not 104 weeks after the injury
78 I am satisfied that while Mr Young is capable of driving his own four wheel drive vehicle for local trips to shops, the bus stop, his father’s home seven kilometres away, and for about a half hour on an isolated occasion, he would not be capable of working full-time – or enough hours consistently to earn as much as 60% of a truck driver’s annual wages. Without doing the arithmetic required for the calculation under s134AB(38)(f), I am satisfied that Mr Young could not sustain driving activities for even one to two whole days per week, or constant half days, as he could not sit for long periods due to his back pain, could not climb in and out of his vehicle regularly to make deliveries, let alone lift heavy items if they were involved, and would suffer wholly disabling back pain following any concerted attempt at such activities. The effect of his medication on his concentration while driving would also potentially limit his capacity to drive at regular and reliable times.
79 The role of dispatch clerk was put to Mr Young in cross-examination and he responded that he would not have the patience to work closely with other people. Mr Stanley submitted that a personality constraint, even if pre- existing, was not a matter relevant to take into account under the definition of suitable employment. I am not convinced that it cannot be taken into account. However, as described in the Konekt report, the role would render it unsuitable for Mr Young on numerous grounds. It is described as including spending time in warehouses packing and unpacking goods, driving between wharves, container terminals, airports and government departments, weighing items, as well as a range of clerical duties such as filing, accounting, updating customs records, preparing correspondence and inputting and retrieving information from computers. It is noted that entry to this occupation may be improved if a person has qualifications, and those may be able to be studied through distance education. Entry is also available through a New Apprenticeship in Transport and Distribution (Administration). Notwithstanding that the Konekt consultant noted “yes” to “immediate work readiness” for such a position in August 2006, I am satisfied that with his back injury and limited educational background, and having no computer skills, he was neither physically nor educationally suited to such a position at that stage, nor is he ever likely to be so, even with what retraining he could reasonably be expected to undertake and achieve.
80 Finally it was said that he could be a forklift driver although he would need to obtain his forklift driver’s licence. A man who cannot sit for prolonged periods with a known history of a disc (or nerve root) injury in his lower back, would not in my view be capable of sustaining a job as a forklift driver, often required to drive over bumps or rough surfaces renowned for jolting backs, as well as having to adjust to working as part of warehouse teams at which the plaintiff has no experience, and at which he apparently ran into personality conflicts when taking part in such a role for a few days with one of his previous employers.
81 Finally, I note that not only the plaintiff’s treating doctors give opinions that he is unfit for any suitable employment, and is likely to remain so. Dr Clark, on whose original opinion the Konekt recommendations seem based, subsequently reported that the plaintiff’s condition had deteriorated over the period of his assessments, and by the last examination he considered Mr Young unfit for any alternative duties and likely to remain so. Although he qualified that after viewing surveillance film of April 2008, he still only said that there was a possibility of Mr Young being capable of alternative work.
82 The court must consider not only whether alternatives mentioned in vocational reports, but whether there are other options that would constitute suitable employment of which the plaintiff is or could become capable.
83 Based on the medical opinion and my acceptance of Mr Young and his wife’s description of his symptoms and their disabling frequency, I am satisfied that he is not capable of suitable employment at present, and that his symptoms and conditions are chronic, and he is unlikely to recover sufficiently to be capable of performing any suitable employment on a sustained basis.
84 I am therefore satisfied that he satisfies the test for having suffered a serious injury as to loss of earning capacity.
Medical opinion as to psychiatric condition
85 In early 2009 Mr Young was referred for treatment to a psychiatrist, Dr Vinay Kumar. On first presentation the history was of deterioration in mood since the time of his back injury in April 2005. He was having sleep and appetite disturbance, a decrease in energy and motivation to help with household chores, a significant cognitive deficit in the way of memory and concentration, and was becoming irritable inpatient and verbally aggressive towards his family. He described intermittent suicidal thoughts but there were no psychotic symptoms nor anxiety features evident. Dr Kumar was told (correctly) that there was no previous psychiatric admission nor treatment by a psychiatrist. He was also told there had been no depressive episodes prior to the back injury, but he had taken Arapax for over a year since his injury, being 60mg for over nine months. He was told that Mr Young had been drinking alcohol (bourbon) heavily during the year after the accident, but had reduced that to a minimal amount by February 2010[42].
[42] Exhibit H
86 Dr Kumar found him co-operative with normal rate and volume of speech but his mood was depressed and his affect depressed. There were no delusions nor suicidal thoughts evident at the time of examination. He diagnosed Mr Young as meeting the criteria for a Major Depressive Disorder, and that he has chronic pain. He saw Mr Young on 25 occasions for treatment being approximately fortnightly until 22 January 2010. He slowly decreased the Arapax from 50mg each morning and eventually ceased it. He prescribed Seroquel in increasing doses to help him sleep, and to deal with and manage the withdrawal symptoms of the decreasing Arapax. He commenced him on Cymbalta (60mg daily) after the Arapax was ceased, and the dosage of Cymbalta was increased to 180mg daily with minimal improvement in the plaintiff’s mood. The Cymbalta had then been slowly decreased over the weeks and ceased and replaced with Lexapro (10mg daily) increased to 20mg, but unfortunately it gave him diarrhoea. When Dr Kumar was on leave the general practitioner replaced the Lexapro with Cymbalta and on Dr Kumar’s return he ceased the Cymbalta and commenced Mr Young on Avanza (15mg at night), which was increased to 60mg nightly with no improvement in his mood.
87 Dr Kumar felt that Mr Young had treatment resistant depression and as he had been on a number of anti-depressants with no improvement in his mood, and had ongoing constant pain, he decided that electro-convulsive therapy as an inpatient was required. A three week admission with electro-convulsive therapy was approved by WorkCover. However, he was discharged from Pine Lodge Hospital where he had been admitted for the electro-convulsive therapy after one night, because the anaesthetist advised against that form of treatment because it risked further deterioration in his lower back disc injury. Avanza was ceased and he was commenced on Prothiaden (75mg nightly) and continued to take Seroquel (200mg nightly). When last seen, Dr Kumar’s opinion was that Mr Young continued to suffer from the pain related to his work injury and a depressive illness secondary to his pain. He did not believe Mr Young capable at that stage of doing any work nor that he would be capable of any kind of work in the future without adequate analgesia and suitable treatment for his depression. In the short and long term he thought the prognosis poor and that the plaintiff would require lifelong analgesia and lifelong psychiatric treatment on a regular basis.[43]
[43] Exhibit H
88 The plaintiff sought a second opinion in relation to the electro-convulsive therapy and was referred by his general practitioner to Dr George Camilleri[44] whom he first saw on 9 May 2010. At that stage he presented with depressed mood which he rated at around three out of 10. He complained of sleep being very poor and that he had tried a number of sleeping tablets which were unsuccessful. He had poor appetite and weight loss of 10 kilograms in the previous few months. His energy levels were very low. Motivation levels were low. He suffered from anhedonia and anxiety and was unable to concentrate. He complained of being irritable and angry. He denied feeling suicidal. He also had episodes of dysphoria associated with feeling jittery, shaky, sweaty and uncomfortable, and that would tend to occur when his opiate patch was wearing off, and would be relieved by putting on a new opiate patch.
[44] Exhibit L
89 Dr Camilleri’s assessment was that Mr Young suffered from major depression, chronic pain and opiate dependence. He recommended that before going to electro-convulsive therapy, alternate treatment should be attempted with a different anti-depressant, night-time sedation, and referral to a pain management specialist and pain management clinic. That treatment plan was instituted. Mr Young was put on a high dose of Venlafaxine (400mg). He was also put on Seroquel starting at 25mg at night but gradually increased to 75mg. He was seen by Dr Clayton Thomas, rehabilitation specialist, who was managing and monitoring Mr Young as well as his treatment at the pain management clinic.
90 Dr Camilleri’s opinion is that the psychiatric conditions were all caused by the injury sustained to Mr Young’s back in his employment, and that he has no capacity for any form of work, and that incapacity for work is permanent. He felt the prognosis not good because six years since the injury he continues to suffer from back pain and depression, and that although stabilised to some extent and he believed that Mr Young could get to a point where he can manage his pain, the injury itself appears permanent and he will be likely to require psychiatric and pain medication on a long-term basis. Dr Camilleri continues to treat the plaintiff, who sees him approximately monthly.
91 Dr Michael Epstein examined the plaintiff for medico-legal purposes[45] in April 2008 and November 2010. When he first saw Dr Epstein the plaintiff had greatly increased his alcohol intake and his smoking of cigarettes compared with before the back injury. He was seeing a psychologist weekly, and taking a variety of medications including Valium and Arapax. Dr Epstein’s opinion was that chronic pain, discomfort and disability from his back injury had led to the development of a major depressive disorder and he thought Mr Young totally and permanently incapacitated for work. Dr Epstein also thought the plaintiff required continuing treatment, including the addition of psychiatric treatment, not merely medication and seeing a psychologist.
[45] Exhibit G
92 On re-assessed in November 2010, Dr Epstein noted treatment in the meantime and also a medical opinion dated 20 February 2009 to the effect that Mr Young had no current work capacity, that the situation was likely to continue indefinitely and was materially contributed to by the mild persistent low back dysfunction and by the major depressive episode. Following that period he had reduced his cigarette consumption from 75 to 40 per day. He still had difficulty sleeping because of pain and anxiety and he had ever present low back pain going into both buttocks and down both legs, more so in the left.
93 Dr Epstein said that on the second examination Mr Young’s appearance looked unchanged, that he walked with a limp favouring his left leg, and was holding his back, but he was able to give a better account of his history than when he was first seen, and appeared well oriented and co-operative. His affect was still restricted and he appeared significantly depressed, but he had only minor problems with memory and concentration and there was no evidence of thought disorder, hallucinations or delusions.
94 Dr Epstein’s opinion was that Mr Young has a chronic pain disorder with a medical condition, that is, an L4/5 disc injury, and as a result had developed a major depressive disorder that was still present but had improved a little since he was last seen. He still believed he required continuing treatment, and that he had no current capacity for work, and that that was likely to continue indefinitely, taking into account his age, education, skills, work experience, place of residence and incapacity and restrictions arising from his injuries. Dr Epstein considered that his condition was stable and the prognosis for improvement poor[46].
[46] Exhibit G, report 18/11/10
95 Dr Dush Shan examined the plaintiff for the defendant in September 2008[47] and September 2010.[48] In his first report, he noted that Mr Young’s answers to questions were mainly digressive, but that his wife, who had attended with him, tended to interrupt and put him back on track. He assessed Mr Young’s affect as predominantly depressed and mildly anxious, but not irritable during examination, although apparently he had been irritable at home. He thought he was very preoccupied with his belief that his condition was very severe and had devastated his life, and felt that his pain perception was disproportionate. Problems of concentration were observed. Dr Shan noted that despite the plaintiff’s reports of feeling that life was not worth going on with, he had not been referred to a psychiatrist for an opinion or needed an admission to hospital. He considered that Mr Young warranted a diagnosis of pain disorder with both psychological factors and a medical condition, and a diagnosis of an adjustment disorder with mixed anxiety and depressed mood, both conditions having arisen as a consequence of, or secondary to, the accepted physical injury of 2005. He considered at that stage that the plaintiff had no capacity for any work from the viewpoint of the psychiatric diagnoses of pain disorder and adjustment disorder.
[47] Exhibit 5
[48] Exhibit J
96 On further assessment in September 2010, Dr Shan considered he continued to present as depressed and anxious, although apparently somewhat more settled in mood than when he had been seen in 2008. Dr Shan considered he warranted a diagnosis of pain disorder according to DSM IV, as well as adjustment disorder, and that both conditions had arisen as a consequence of, or secondary to, the accepted physical injury of 2005. He considered the condition is now chronic, that his employment was a significant contributing factor to the condition, that the injuries imposed considerable social and family relationship restrictions, that ongoing treatment by psychiatrist and counselling support by a psychologist was indicated for at least another two years. Dr Shan considered him unfit for all work due to the psychiatric diagnoses and that was unlikely to improve if his litigation were finalised.
97 Mr Ronnie Jontoff-Hunter, clinical and consulting psychologist, treated the plaintiff[49] over an extended period[50]. He considers the plaintiff’s symptoms consistent with an adjustment disorder and depression, with pain management the central feature, and concomitant psychological problems of poor self esteem, marital and social changes. He find Mr Young continues to be depressed, anxious and uncertain about his future. He is having appropriate treatment and has stabilised with psychotherapy, anti- depressants, as well as painkillers and anti-inflammatories. His condition has been exacerbated by his educational limitations and inability to adjust to his circumstances.
[49] Exhibit E
[50] As best I can determine he commenced in late 2007, after Dr Merigan took over the plaintiff’s care. His reports do not include dates of treatment. I am not clear whether he still treats Mr Young or whether Dr Camilleri’s monthly sessions have replaced his.
98 Mr Jontof-Hunter describes the plaintiff’s symptoms as including major sleep difficulties, and that he continues to regularly wake due to pain. He experiences poor appetite, often skips meals, and mostly eats at night. He was smaking about 60 cigarettes a day but has decreased the number now. He also drank excessive alcohol and coffee for a period. He also lost all libidinal interest and sexual relations with his wife have not been possible since the accident, due to pain and also erectile dysfunction which was not assisted by Viagra.
99 He did not think it likely that that Mr Young had many options available for alternative work, and as he cannot sit for long periods due to pain in his back, could not return to any driving or sedentary occupation. He noted that Mr Young does not easily accept that he will never return to his job and that causes him to be resentful and bitter. In addition the absence from work has caused financial pressure that he is not able to deal with effectively and his wife has to work long and difficult hours to help make ends meet. This has put pressure on the family and led to arguments with some of his children, and his self-image therefore is very low. He considers Mr Young is likely to require medical and psychological assistance for the foreseeable future.
100 Dr Stephen Stern, consultant psychiatrist, assessed the plaintiff for the defendant in August 2008.[51] He found Mr Young tense, had difficulty relaxing, and sat uncomfortably. He maintained normal eye contact. His speech was quiet and the content was depressive and his affect was depressed. He said he was unable to work at present, wanted to go back to truck driving in the future, but was losing hope and his confidence was low. His memory and concentration were reduced but his orientation was intact and Dr Stern thought he had good insight into his situation.
[51] Exhibit 7
101 Dr Stern’s opinion at the time was that the plaintiff was suffering from a major depressive disorder with anxiety and that it was related to the back injury at work. He knew of no pre-existing or unrelated psychiatric disorder. However, and in contrast to all other psychiatric opinion in this case, he considered, from a psychiatric aspect alone, that the plaintiff was fit for all work but that he needed to continue anti-depressant medication and psychological treatment.
Has the plaintiff suffered a “serious injury” under part (c) of the definition?
102 I am satisfied that as a result of the consequences of pain and disability from his back injury, the plaintiff suffered a major depressive disorder, with anxiety. He also suffered opiate dependence although that has been addressed in the last 12 months through a change in pain-killing medication, and although he still needs medication for withdrawal symtoms I am not satisfied that the addiction – as opposed to the ongoing need to take medication for pain – is permanent. Whether the major depression has now become more an adjustment disorder is no moment given that all psychiatric opinion is that he has been suffering significant symptoms of depression and anxiety for several years, and although his mood is more settled now than in 2008, he continues with chronic depressed mood, poor sleep, loss of self esteem, and appetite disturbance. He is also diagnosed as suffering a pain disorder, of both physical and psychiatric origin.
103 The test which must be met for this basis of his application is whether the consequences to him of his conditions can fairly be described as “severe”, when compared with other possible mental or behavioural disturbances or disorders.
104 I am satisfied that the consequences to his everyday life have been overwhelming to him, and he has been deeply despondent and depressed. While the test does not rest on his subjective perception or view of the degree of disability, I am satisfied that there is other and some objective evidence of his depression and anxiety. He is anxious, becomes confused and forgetful, and feels helpless. His wife describes a person much altered in mood and outlook than her husband before his injury.
105 In my view the extent of his depression and anxiety is reflected by the fact that he was willing to accept the recommendation of Dr Kumar to undergo electro convulsive therapy. I regard that decision, its reality being backed by his being admitted to hospital for that treatment to occur, as reflecting a level of desperation as to his psychiatric condition, that in my view must satisfy the description “severe”. The defendant argues that I should find that there has been considerable improvement in his psychological condition since then. The evidence is that his mood has stabilised, with changes in medication, but he still requires significant medication to keep it stable.
106 Further, I am satisfied that he meets the test for “serious injury” under part (c) of the definition, on the basis that he satisfies the test for loss of earning capacity resulting from his psychiatric injuries.
107 Apart from Dr Stern’s opinion, all of the other psychiatric assessments, including the more recent re-assessments by Dr Shan and Dr Epstein, as well as treating doctors (GP, Dr Camilleri, and Dr Thomas), as well as his psychologist, note an ongoing psychiatric condition serious enough to incapacitate him for all work, with poor prospects of improvement.
108 I am puzzled that Dr Stern could diagnose a major depressive disorder with anxiety, make an impairment assessment which, albeit irrelevant for a serious injury application, was of a whole person psychiatric impairment of 20 per cent, and yet find that that condition did not interfere at all with the person’s ability for all work. Moreover, there was no consideration of whether the ongoing medication for the psychiatric condition would interfere with his ability to drive heavy transport vehicles long distances. In contrast, Dr Elder, examining the plaintiff one day after Dr Stern, felt it encumbent to warn Mr Young of the danger of driving at all with his level of medications (albeit for both physical and psychiatric symptoms).
109 Without further explanation of what would otherwise seem an illogical conclusion, and in the face of four other psychiatrists giving a contrary opinion, and all having seen the plaintiff more recently than has Dr Stern, I am satisfied that I should follow the majority of the views as opposed to that of Dr Stern in relation to the plaintiff’s incapacity for work as a result of his psychiatric condition.
110 Taking into account all of those opinions, in addition to a treating psychologist, general practitioner and also Dr Clayton Thomas, albeit not specialist psychiatric opinion, I am satisfied that the plaintiff continues to suffer from psychiatric conditions which still totally incapacitate him for work, and which are unlikely to significantly improve in the foreseeable future given their duration, and given the continuation of the underlying physical injury which caused them. I am therefore satisfied that he has suffered a permanent loss of earning capacity of more than 40% as a result of his psychiatric injuries.
Conclusions
111 I am satisfied that Mr Young suffered an injury to his low back in the course of his employment with the defendant, which satisfies the definition of “serious injury” as to both pain and suffering and as to loss of earning capacity. I am also satisfied that as a result of the injury to his back he suffered a mental or behavioural disturbance or disorder, in particular a major depressive disorder, with anxiety, which satisfies part (c) of the definition of “serious injury” both as to pain and suffering and as to loss of earning capacity. I propose to grant him leave to bring proceedings for damages in respect of both injuries accordingly.
SCHEDULE OF EXHIBITS
Stephen Young v Blue Chip Express Pty Ltd
CI - 10 - 02384
Number
and Short Description of Exhibit Tendered
Identifying by… Mark on Exhibit
A Plaintiff’s affidavits sworn 21/12/09 and 15/03/11 Plaintiff B Reports of Dr Merigan dated 18/12/07, 03/08/10, Plaintiff 14/07/08, 07/08/11, C Report of Dr Darrer dated 30/05/07 Plaintiff D Reports of Mr Pullar dated 12/05/05, 16/06/05, Plaintiff 29/9/05, 8/12/06 E Reports of Mr Jontoff-Hunter dated 23/1/08, 7/7/08 Plaintiff and 17/2/11 F Reports of Dr Thomas dated 15/4/08, 13/10/10 and Plaintiff 10/2/11 G Reports of Dr Epstein dated 5/5/08 and 18/11/10 Plaintiff H Report of Dr Kumar dated 12/02/10 Plaintiff J Report of Dr Shan 28/09/10 Plaintiff K Report of Associate Professor Boling dated 02/02/11 Plaintiff L Report of Dr Camilleri dated 22/02/11 Plaintiff M Report of Mr Klug dated 03/05/11 Plaintiff N Report of Mr Shannon dated 27/04/11 Plaintiff O Report of Ms Leitch; Evidex report dated 13/09/10 Plaintiff P Opinion of medical panel dated 20/02/09 Plaintiff
Q Radiology reports dated 18/11/05, 20/05/05, Plaintiff 18/04/05 and 02/05/05
R Summary of plaintiff’s income taxation Plaintiff documentation for years ending 30 June 1998 to 30
June 2008 inclusive
S Affidavit of Annie Young sworn 02/06/2011 Plaintiff 1 Entries in Plaintiff’s progress notes at Rowville Defence Medical Centre from 01/06/02 to 11/04/05 2 DVDs of video surveillance of plaintiff on 24 and Defence 28/04/08; on 20 and 23/12/10; on 19 and 22/02/11;
on 05/08/10; and 28/06/103 Report of Dr Merrigan dated 26/06/08 Defence 4 Reports of Dr Darrer dated 19/05/03 and 29/06/05 Defence 5 Report of Dr Shan dated 02/09/08 Defence 6 Report of Dr Elder dated 08/08/08 Defence 7 Report of Dr Stern dated 07/08/08 Defence 8 Reports of Dr Clark dated 17/05/06, 27/07/06, Defence 29/08/06, 21/02/07, 08/05/08 and 06/08/08 9 Report of Mr Michael Shannon dated 25/06/08 Defence 10 Radiology report of CT scan dated 09/10/07 Defence 11 Konekt workplace assessment report dated 09/01/06 Defence including return to work plans numbered 1 to 3; and
104 week vocational assessment
0
0
0