Zhai v Victorian WorkCover Authority
[2022] VCC 19
•24 January 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02104
| JIAQIANG ZHAI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 22 February 2021 | |
DATE OF JUDGMENT: | 24 January 2022 | |
CASE MAY BE CITED AS: | Zhai v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 19 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – plaintiff seeks leave to bring common law proceedings for “pain and suffering” damages and “pecuniary loss” damages in respect to injury to the left and right upper limb, the spine (consisting of both the cervical spine and lumbar spine) and consequential psychological injuries suffered throughout the course of his employment with the defendant – reliance on paragraph (a) and paragraph (c) of the definition of “serious injury”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Transport Accident Commission v Zepic [2013] VSCA 232; Lexa v Transport Accident Commission [2019] VSCA 123; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Bogdanovska v Allsmanti Pty Ltd [2010] VSCA 126; Pope v WS Walker & Sons Pty Ltd; Pope v Victorian WorkCover Authority [2006] VSCA 227
Judgment: Proceeding dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Dunstan with Ms C Wilshire | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HIS HONOUR:
1By way of Originating Motion, Mr Jiaqiang Zhai (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for injury to the left upper limb (including the hand and fingers) and/or his right upper limb (including the hand and fingers) and/or bilateral palmar flexor tendon tenosynovitis and/or spine (including the cervical, thoracic and lumbar spines), said to have occurred throughout the course of his employment with CC Containers Pty Ltd (“the defendant”).[1]
[1]The plaintiff has issued the Originating Motion against the Victorian WorkCover Authority, whereas the draft Statement of Claim names the defendant as CC Containers Pty Ltd. I will refer to CC Containers Pty Ltd as the defendant.
2The plaintiff also seeks leave pursuant to s335(2)(d) of the Act to bring common law proceedings for a psychiatric injury consisting of anxiety and/or depression said to have occurred as a consequence of the organic injuries referred to in paragraph 1.
3The plaintiff seeks leave to bring proceedings for “pain and suffering” and/or “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of the organic injuries and psychiatric injury.
4The plaintiff gave evidence and was cross-examined. Both parties tendered a large number of documents.[2]
[2]Refer to Annexure “A”
Relevant legal principles
5In relation to both the organic injuries and the psychiatric injury, the Court must not give leave unless it is satisfied, on the balance of probabilities, that such an injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[3]
[3]See s335(5)(a) of the Act
6In relation to the organic injuries, the plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph states, relevantly:
“serious injury means—
(a)permanent serious impairment or loss of a body function; or
… .”
7The part of the body said to be impaired for the purposes of paragraph (a) is the left arm (including the hand and fingers) and/or right arm (including the hand and fingers), and the spine (including the neck, thoracic and lumbar spine).
8In relation to the psychiatric injury, the plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph states, relevantly:
“serious injury means—
…
(c)permanent severe mental or permanent severe behaviour disturbance or disorder; or
… .”
9As I have already recorded, the behavioural disturbance or disorder involves symptoms of anxiety and depression resulting from the organic injuries.
10In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the organic injury and/or the psychiatric injury suffered by him arose out of or in the course of, or due to the nature of, his employment with the employer on or after 1 July 2014[4] and;
(b) the organic injury under paragraph (a) of the definition of “serious injury” and the psychiatric injury under paragraph (c) of the definition of “serious injury” must be “permanent”; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[5]
[4]See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
11Section 225(2)(b) of the Act provides that the terms “serious” and “severe” are to be satisfied in reference to the consequences, relevantly of any impairment or loss of body function (paragraph (a) of the definition of “serious injury”) or mental or behavioural disturbance or disorder (paragraph (c) of the definition of “serious injury”). Such consequences extend to both “pain and suffering” and/or “loss of earning capacity”.
12In relation to the organic injury, it is for the plaintiff to establish, on the balance of probabilities, that each of his organic injuries in relation to “pain and suffering” and/or “loss of earning capacity” must be “serious”; that is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be [can be] fairly described as being more than significant or marked, and as being at least very considerable;
… .”[6]
[6]See s325(2)(b) and s325(2)(c) of the Act
13In relation to the psychiatric injury, it is for the plaintiff to establish, on the balance of probabilities, that such injury in relation to “pain and suffering” and “pecuniary loss” must be “serious”; that is:
“… when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”[7]
[7]See s325(2)(b) and s325(2)(d) of the Act
14The word “severe” indicates that a more significant injury is required to meet the test under paragraph (c) of the definition of “serious injury” compared to the definition contained in paragraphs (a) and (b).[8]
[8]See Noonan v State of Victoria [2013] VSCA 289 at paragraph [8]; Mobilio v Balliotis [1998] 3 VR 833
15In addition, in relation to establishing the loss of earning capacity, a court must not grant leave under s335(2)(d) on the basis that the worker has established the loss of earning capacity required by s325(2)(e) unless the worker establishes, in addition to the requirements of paragraphs (c) and/or (d) of s325(2) of the Act (as the case may be), that:
(a) as at the date of hearing of an application under s335(2)(d) of the Act, the worker has a loss of hearing capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in s325(2)(f) of the Act; and
(b) the worker will, after the date of hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[9]
[9]See s325(2)(e) of the Act.
16Section 335(3) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies subparagraph (i) of s325(2)(b) but not subparagraph (ii) of that subsection, he or she is entitled to bring proceedings in accordance with s335(2)(d) for the recovery of damages for “pain and suffering” only. A worker who satisfies the loss of earning capacity requirements of s325 of the Act is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[10]
[10]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
17Section 325(2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
18Section 325(2)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes or paragraph (c) of the definition of “serious injury” and not otherwise.
The issues
19After the matter was opened by counsel for the plaintiff, the Court enquired from counsel for the defendant, what were the issues in the proceeding. At that time, counsel for the defendant set out a number of issues.[11] At the end of the evidence, it was agreed that the parties would make written submissions, and in his written submissions, counsel for the defendant enlarged on his earlier comments as to what were the issues to be determined in the proceeding.
[11]See generally, Transcript (“T”) 9, Lines (“L”) 11 ꟷ T29, L2
20Initially, counsel for the defendant noted, appropriately, that the plaintiff was seeking leave to bring common law proceedings in respect to the following injuries.
(a) cervical and lumbar spine;
(b) right upper limb;
(c) left upper limb; and
(d) consequent psychological injury.
21Furthermore, counsel for the defendant noted that the plaintiff seeks leave in respect of both “pecuniary loss” and “pain and suffering” damages.
22Essentially, counsel for the defendant submitted that there were five issues of importance:
(a) The plaintiff did not, and does not, suffer compensable injury within the meaning of the Act (“the compensability issue”). In this respect, the defendant relies on the opinions of the rheumatologist, Dr Tony Kostos, and that of the occupational physician, Dr David Barton. When queried as to whether or not any diagnosis was made of a man who suffers pain in his hands and arms, I was informed Dr Kostos – the rheumatologist – was of the opinion that the plaintiff suffered generalised osteoarthritis in the hands.
Counsel for the defendant noted that the plaintiff had been off work for three years, during which time he had received weekly payments of compensation.[12] The Court was referred to page 15 of the Defendant’s Court Book (“DCB”), which contained a Notice of Termination, dated 21 June 2018, terminating weekly payments and medical and like expense from 30 July 2018, based on the report from Dr Kostos.
[12]T11, L25-31
In that notice, CGU – the insurer – notes that the plaintiff completed a claim for compensation on 22 April 2018 and that claim was accepted, and weekly payments commenced from 14 March 2018. CGU then states it has determined that the plaintiff is no longer entitled to weekly payments or for the reasonable cost of medical and like expenses from July 2018, because the plaintiff had not sustained an injury arising out of or in the course of his employment with the defendant.
That decision of the insurer was referred to the Medical Panel (“the Panel”) by a conciliation officer and lodged on 12 October 2018. Part of the opinion given by the Panel was that the plaintiff was suffering bilateral palmar flexor tendon tenosynovitis, which was work related, and as a result, weekly payments of compensation were reinstated. In the opinion of the Panel, that condition was the only compensable condition suffered by the plaintiff.
Counsel for the defendant also noted that none of the doctors who had proffered opinions in this proceeding had made a similar diagnosis ꟷ that is, bilateral palmar flexor tendon tenosynovitis;
(b) Counsel for the defendant submitted that in relation to the claim for leave to bring common law proceedings for pain and suffering damages, the plaintiff was “not permitted” to aggregate impairments to the right upper limb and left upper limb, or one or both of the upper limbs and the cervical and lumbar spine (“the aggregation issue”).
It was accepted that the plaintiff can aggregate the cervical spine and lumbar spine as one body function, and reference was made to the Victorian Court of Appeal decision of Transport Accident Commission v Zepic.[13] However, counsel for the defendant further submitted that the plaintiff was not permitted to aggregate one or both upper limbs with the spine, nor to aggregate the right upper limb and the left upper limb unless one is a consequence of the other.[14] Counsel referred to the relatively recent Court of Appeal decision of Lexa v Transport Accident Commission[15] in support of that proposition.
Counsel for the defendant also submitted that the plaintiff cannot aggregate various claimed body impairments to give rise to the claimed consequential psychiatric condition. Again, reference was made to the Court of Appeal decision of Lexa.[16]
It was submitted that the task of the plaintiff is to identify the consequences of the claimed injury and impairment said to constitute the “serious injury” – it is not sufficient, similarly, to rely on multiple injuries (which cannot be aggregated) and assert serious injury consequences. Reference was made to the Court of Appeal Decision of Peak Engineering Pty Ltd & Anor v McKenzie[17] in support of such proposition.
In this respect, it was submitted the plaintiff should be found to have failed to separately identify the consequences upon which he relied (for either the pain and suffering aspect of the application or the loss of earnings aspect of the application) in terms of identifying the consequences flowing from, in this case, the spine, the right hand and the left hand.
(c) Counsel for the defendant also submitted that, in relation to the claim for leave to bring common law proceedings for pain and suffering damages, insofar as the application is based on paragraph (a) of the definition of “serious injury”, there is no substantial organic basis for the plaintiff’s claimed injuries (“the disentanglement issue). Counsel made reference to the well-known Court of Appeal decision of Meadows v Lichmore Pty Ltd,[18] and, in particular, submitted there was no substantial organic basis for the pain and suffering consequences relied on. In particular, reference was made to the reports of the rheumatologist, Dr Kostos; the occupational physician, Dr Barton, and various comments contained with the Panel’s Opinion. In essence, the defendant submitted the plaintiff’s claimed problems as being essentially “non-organic in origin is to be preferred”.
Counsel also submitted that in the event that the plaintiff then sought to rely on paragraph (c) of the definition of “serious injury”, the Court of Appeal decision of Zhang v Joy Foods Australia Pty Ltd,[19] wherein it was submitted that the Court specifically rejected what it described as a “process of reasoning in reverse”, that being, if the condition was not substantially organic, it must be a severe mental or behavioural disturbance or disorder within the meaning of paragraph (c);[20]
(d) Counsel for the defendant also submitted that an application for leave to bring a common law claim for pain and suffering damages, whether it be under paragraph (a) or (c) of the definition of “serious injury”, must be “permanent” – that is to say, permanent in the sense it is likely to last for the foreseeable future.[21]
Reference was also made to the Court of Appeal decisions of Cardoso v Staff Australia Payroll Services Pty Ltd[22] and the earlier decision of Bogdanovska v Allsmanti Pty Ltd;[23] and
(e) The final issue submitted by counsel for the defendant was that of pecuniary loss. Of course, as noted by counsel for the defendant, if any of the submissions made by him regarding compensable injury, aggregation, disentanglement or permanency were upheld by the Court, the issue of pecuniary loss has no relevance.
However, in the event that pecuniary loss was an issue, counsel for the defendant accepted that the Statement of Calculations relied on by the plaintiff (exhibit “E”) correctly sets out the “without injury” earnings of the plaintiff, 60 per cent of which is $37,303 gross per annum or, alternatively, $717.38 gross per week. However, it was submitted by counsel for the defendant that the plaintiff was capable of suitable employment which would generate more than $37,303 per annum.
[13][2013] VSCA 232 at paragraph [122] and paragraphs [127]-[139]
[14]Counsel noted that there was no evidence to suggest that the right upper limb condition caused the left upper limb condition or vice versa or, alternatively, either upper limb condition having caused any spinal condition.
[15][2019] VSCA 123 at paragraphs [40]-[51]
[16]Op cit
[17][2014] VSCA 67 at paragraphs [8]-[9] and paragraphs [24]-[25]
[18][2013] VSCA 201 at paragraph [2]
[19][2016] VSCA 199
[20]See Zhang (op cit) at paragraphs [65] and [67]
[21]Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[22][2019] VSCA 139 at paragraphs [45]-[47]
[23][2010] VSCA 126
The evidence of the Plaintiff
23The plaintiff relies on two affidavits – the first sworn on 16 December 2019[24] and the second sworn on 18 February 2021.[25]
[24]See exhibit 1 at pages 5-10 of the Plaintiff’s Court Book (“PCB”)
[25]See exhibit 1 at pages 103 of the PCB
24I was informed that the plaintiff was born in China and his natural language is Mandarin, and that he required the assistance of an interpreter. The interpreter, Mr Frederik Quach, was affirmed.
25In his evidence-in-chief, counsel for the plaintiff referred his client to the two affidavits and save for two small changes, the plaintiff gave evidence that he had read both affidavits again that morning and the contents were “true and correct”.[26]
[26]T37, L13-18 and L26-29
26The first small change relates to paragraph 1 of the first affidavit, where he states he was living with his partner, but that should read “I live with my flatmates”. The second small change relates to paragraph 2, where the plaintiff states “I live alone”, which is wrong, because he was living with other people in the house.
27I refer to the salient matters of the first affidavit:
· The plaintiff was born in China in November 1966 and has a child from a previous marriage.
· After finishing secondary school in China, he worked as an administration officer for a transport company and not long thereafter, he completed a degree in business administration by correspondence and in 2000, opened his own business installing electrical cables.
· The plaintiff came to Australia in about 2007, and in that year commenced employment with the defendant – CC Containers Pty Ltd – as a welder and fitter. The defendant operated a container park in Footscray and the plaintiff was employed full time five days a week, rostered to work about nine-and-a-half hours a day (forty-seven-and-a-half hours per week), earning $21.39 per rostered hour. The plaintiff also worked overtime.
· When he commenced with the defendant, the duties of the plaintiff included “truck driving, loading trucks, forklift driving, cleaning containers, maintenance and repair work” and in about 2008, his work changed to just cleaning containers.[27]
[27]See exhibit 1 at paragraph 5 of the first affidavit, pages 6 PCB
· During his employment with the defendant, the plaintiff had several slips inside the containers and although the slips caused sore buttocks at the time, none were of any consequence. In about 2010, the plaintiff was diagnosed with diabetes, and to manage that condition, he was taking Metformin tablets daily and had his blood sugar checked about every three months.
· The plaintiff injured his hands and spine throughout the course of his employment with the employer.
· In order to clean the containers, the plaintiff had to use a handheld pressure washer, which felt heavy and vibrated when in use. In order to use the washer, the plaintiff had to forcefully apply both arms and hands, and was also required to frequently bend and twist his neck and back, especially when he cleaned the upper parts of the container, such as the roof and the sides. The plaintiff also noted that a lot of the work was performed in very cold conditions.
· Over time, the plaintiff noticed pain all over his body, but particularly in his hands and spine, with the pain coming on as he cleaned the containers. Initially, the pain was mild but eventually the pain, especially in his hands, became severe, with his fingers becoming swollen.
· On or about 22 February 2018, the plaintiff consulted his general practitioner, Dr Stanley Chiang, about his symptoms, and, in particular, the pain in his hands which bothered him the most, as it was the most severe. Pursuant to the recommendation of Dr Chiang, he investigated his hand pain with radiology and had an x-ray of both hands the same day.
· The plaintiff stopped working on 11 March 2018 due to pain in his hands – particularly the right hand. He consulted Dr Chiang on that day, and he prescribed pain-relief medication and treated the plaintiff with acupuncture.
· Not long after he stopped work, Dr Chiang referred the plaintiff for an MRI scan of his neck, which was undertaken on 13 April 2018. On or about 20 May 2018, the plaintiff underwent an MRI scan of his lower back and joints.
· Throughout 2018 and 2019, he had regular acupuncture treatment. The plaintiff describes the consequences of his hand injury as follows:
ꟷhe continued to have pain in both his hands, with the right-hand pain worse than the left-hand pain. Fingers on both hands look and feel swollen and while pain is there all the time, it is made worse with movement of his fingers.
ꟷcold weather also makes the pain worse, whereas hot weather makes the pain feel better. To that end, to help with the hand pain, he often soaks his hands in hot water to try and keep his hands warm.
ꟷthe plaintiff does not take pain medication because of the side effects, but about a year prior to his first affidavit, he was taking pain medication again because the pain was getting out of control. He manages his hand pain by applying Chinese herbs and having acupuncture treatment.
ꟷthe plaintiff asserts that the biggest consequence of his hand injury is that he has not been able to return to work and, particularly, the right-hand pain stops him from working.
ꟷhe relies on weekly payments of compensation, and he notes that in the year ended 30 June 2017, he earned $50,705; for the year ended 30 June 2016, $53,766 and for the year ended 30 June 2015, $53,015.
ꟷhis English-language skills are basic and limits him to manual work and he believes he is completely incapacitated for any type of work, but especially manual work due to his right-hand injury alone, as he is right handed and not very coordinated with his left hand.
ꟷhis weekly payments were terminated in July 2018 and he was without income for a long time, waiting to see the Panel for a determination, and this caused significant financial hardship, causing him to sell the family home.
ꟷthe hand injury affects his sleep, and whereas before his injury he could sleep about seven hours a night, he now gets frequently woken up by pain, especially in the right hand, and only manages to sleep a few hours a night.
ꟷdespite the hand pain, he can shower and dress independently, although it takes him longer, and he seeks to avoid unnecessary finger movement.
ꟷin particular, doing up buttons, zips and laces makes his pain worse, as does shaving.
ꟷsince the hand injury, he avoids extending his right hand for a handshake to avoid causing additional pain.
ꟷbefore his hand injury, he cleaned the home about once a week, which involved vacuuming, mopping and changing bedsheets. Since the hand injury, he has been unable to mop or vacuum with either hand because of the pain, and also has been unable to change the bedsheets or make the bed. He does do some light cleaning and tidying with his left hand.
ꟷbefore the hand injury, he enjoyed gardening and spending time in the garden about every two weeks, but since the hand injury, he has been unable to garden and now pays someone to maintain the garden.
ꟷbefore the hand injury, he did most of the cooking at home, but since the hand injury, although capable of using smaller cooking utensils, he is unable to lift heavy pots and woks. He also has difficulty cutting meats and vegetables and consequently cooks less and his meals are simpler.
ꟷthe pain in his right hand has taken away his ability to enjoy his hobbies which, before the hand injury, involved playing badminton and tennis regularly with his nephew. Furthermore, when the weather was good enough and on days off work, he went fishing, but since the hand injury, he has been unable to play badminton or fish, because it makes his right-hand pain too severe.
ꟷhe cannot hold a pen properly in his right hand because his fingers are too sore, swollen and stiff, and when he has tried to write, it made the pain in his right hand worse, as does typing.
ꟷsince the hand injury, while he can us his hands to carry light bags, he found that he was unable to carry heavy bags well in his hands, and especially the right hand feels weak.
ꟷsince the pain in his right hand started, his mood has been down.
ꟷat the time his hand pain started, he was married and he believes the marriage breakdown was caused, at least in part, by his poor mood. He has felt angry and irritated due to his hand pain and took out frustrations on his wife. Since the hand injury, because he is in pain, he no longer has a desire to have sex.
· The plaintiff also sets out his spinal consequences to be:
ꟷthe pain in his neck and the lower sections of his back, and, in particular, the pain in the middle and lower back is a pinching-type of pain, whereas the pain in his neck is a pulling-type of pain. Lying down lessens the pain, as does applying heat packs, and he tends to wear warm clothes to keep his spine warm, as the cold makes the pain worse.
ꟷeverything he does he does with pain in his spine, including walking, sitting and bending, and sitting in one spot for too long, prolonged walking and frequent bending, make the pain particularly bad.
ꟷhe manages the spinal pain by applying Chinese medicine and having acupuncture treatment, and usually wears a lumbar support belt.
28I refer to the second affidavit of the plaintiff and note the following salient matters:
· Since swearing his first affidavit, the plaintiff has continued to engage in conservative treatment with his general practitioner, Dr Chiang, who has coordinated his care. In particular, he continues to engage in acupuncture at a frequency of one to two times a week. He has also begun taking medication on a daily basis and at the time of his second affidavit, was taking Panadol, one to two tablets every day, up to three times a day, and also taking anti-inflammatories, including Celebrex, from time to time.
· He continues to experience the pain symptoms and consequences in his left hand, right hand and spine, that he outlined in his previous affidavit.
· The pain in his neck and lower back is a constant ache that varies with activity and occasionally turns into a sharp shooting pain. It impacts on his ability to work, sleep, do housework, garden, cook and enjoy hobbies in the same way that his hands impact on him.
· At the time of his second affidavit, the plaintiff continued to receive weekly payments in respect of his “accepted WorkCover claim”.[28] The WorkCover insurer continues to pay for his medical expenses.
· Since swearing his earlier affidavit, the plaintiff has been unable to return to any form of work and has now been unable to work for three years since March 2018.
· He does not believe he has any capacity for work based on the spinal, left-hand or right-hand injuries considered separately. He asserts that each of these injuries on their own would prevent him from undertaking physical jobs and in Australia he has only worked with the defendant in a physical job.
· He has basic English and some basic computer skills, but would find it difficult to use a computer or to apply for jobs online in English.
· Throughout his employment with the employer, he did various short upskilling courses in the area of mechanics and welding via TAFE, and this was largely government funded.
· But for his injuries, the plaintiff intended to continue work in a manual and physical job.
· He notes that the insurer has proposed various jobs that he can do, including forklift driver, truck driver, picker/packer, carpark attendant and courier driver, but considers that because of his left hand, right hand and/or spinal injuries considered separately, he does not believe he could do any of those jobs on a reliable and consistent basis.
[28]See exhibit 1, paragraph 7 of the second affidavit, at page 12 PCB
The medical treatment of the Plaintiff
29Before referring to the treatment that the plaintiff has received, I refer to the radiology undergone by the plaintiff. In this respect, I refer to the following:
(a) At the request of his treating general practitioner, Dr Chiang, the plaintiff underwent an x-ray of both hands on 22 February 2018. The x-ray report notes that the clinical presentation was “hand/finger pain, with deformity”. The findings on x-ray were reported as follows:
“… Joint spaces appear normal. There is mild bony spurring at the DIPJ’s and a few small subchondral cysts are present. No malalignment or subluxation. No articular or periarticular erosions.
The rest of the joints appear normal.
No focal bony lesion.”[29]
[29]See exhibit 7 at page 60 PCB
(b) The general practitioner, Dr Chiang, arranged for the plaintiff to undergo an MRI scan of the cervical spine on 13 April 2018. The clinical notes record that the plaintiff was describing bilateral neck pain with right arm pain. The radiographer concluded:
“Disc bulging, encroaching on the cord at C3/4 and C5/6. No cord compression or myelomalacia.”[30]
[30]See exhibit 7 at page 61 PCB
(c) Dr Yong-Fei Foong arranged for the plaintiff to undergo an MRI scan of his lumbar spine and the sacroiliac joints on 20 May 2018. The clinical notes were that the plaintiff presented with severe lower back pain extending to his sacral region for some time. The radiologist found:
“Sagital vertebral alignment and marrow signals are normal.
Conus position is normal.
There is mild dessication (sic) distal lumbar discs L3 to S1. Mild annular bulging lumbosacral junction. Discs appreciated but canal and foraminal dimensions normal.
No disc protrusion seen at any level.
No radiculopathy.”[31]
(d) The general practitioner, Dr Chiang, arranged for the plaintiff to undergo a CT scan of his lumbar spine on 18 February 2021. The clinical notes were that the plaintiff presented with a lower back injury with persistent coccygeal pain. The radiologist concluded:
“Increased intercoccygeal angle, that may give rise to coccydynia. No evidence for recent or old fracture or dislocation.”[32]
[31]See exhibit 7 at page 62 PCB
[32]This CT scan was filed at the end of the proceeding, with agreement between the parties, and constituted part of exhibit 7 (given the date of such scan, it was not contained in any of the Court Books).
30The plaintiff relies on the reports of the general practitioner, Dr Chiang, dated 28 March 2018; 26 July 2018; 16 February 2001 and 10 January 2020.[33]
[33]Such reports found at page 27-32 PCB
31In his report dated 26 July 2018, Dr Chiang notes that he first consulted with the plaintiff on 22 February 2018, when the plaintiff presented and complained of persistent hand/arm pain with finger deformity. At that time, Dr Chiang understood that the work involved a lot of carrying/opening storage rooms et cetera, and that the plaintiff had been working there for ten years prior to him presenting with the above problems. The plaintiff also complained of upper thoracic and lower back pain.
32Dr Chiang made a clinical examination and arranged for the plaintiff to undergo a CT scan and MRI scan, and he was directed to rest.
33Dr Chiang, in that report, states:
“Based on the above clinical information and examination as well as investigation results, a firm diagnosis is thus formed; ie. that of multi-level discogenic abnormality with bulging/protrusion and digit deformity. His employment is definitely the major, if not the only contributing factor of his current ailments.
Mr Zhai received conservative treatments including medical acupuncture and physiotherapy. The treatments, while not aimed at curing his illnesses, have been able to provide alleviation for his pain and suffering. It is therefore strongly recommended that he be given the entitlement for such treatment to continue.
With respect to his work capacity, it appears that Mr Zhai is still unable form (sic) any meaningful duties, despite his willingness to do so. He needs to be monitored for his progress, which unfortunately appears to be a bit slow.
I understand there is a dispute on termination of weekly payment. While I shall not comment on the legal side of the matter it is quite obvious, purely from a medical point of view, that Mr Zhai suffered, and is continuing to suffer from a work-related injury with multi-level abnormalities. It is therefore only reasonable for him to be provided with full entitlement, so that he can recover well enough to re-join the workforce in the near future.”[34]
[34]See exhibit 4 at pages 28-29 PCB
34In his final report, dated 10 January 2021, Dr Chiang confirms his earlier diagnosis and notes that the plaintiff was unfit for both pre-injury duties and alternative duties. Dr Chiang does note, however, that alternative duties would be possible if not due to the combined effect of the injuries in both the neck and back. Dr Chiang believed the plaintiff’s prognosis is “very poor”.[35]
[35]See exhibit 4 at page 32 PCB
Medico-legal reports
35Those acting on behalf of the plaintiff arranged for the plaintiff to be examined by the following:
(a) by the orthopaedic surgeon, Mr Raf Asaid, on 29 October 2020;[36]
(b) by the neurosurgeon, Mr Hazim Akil, on 20 January 2021;[37] and
(c) by the occupational physician, Dr Joseph Slesenger, who examined the plaintiff on 13 January 2021 (by Telehealth with the examinee being in a different location to the consultant) and on 27 January 2021 (a face-to-face examination).[38]
[36]See exhibit 6, report of Mr Rad Asaid, dated 29 October 2020, at pages 47-53 PCB
[37]See exhibit 6, report of Dr Hazim Akil, dated 20 January 2021, at pages 50-59 PCB
[38]See exhibit 6, report of Dr Joseph Slesenger, dated 15 February 2021, at pages 80-99 PCB
36In his report, Mr Asaid obtained a history from the plaintiff that he was employed full time in the capacity of welder and fitter, with his main duties initially involving driving trucks and forklifts, and later cleaning containers, as well maintenance and repair work. In particular, from 2008, he was primarily involved in the cleaning of containers with the use of a hand-held pressure washer.
37Although reporting no specific date of injury, the plaintiff gave a history of gradual development of neck pain, lower back pain, and bilateral wrist and hand pain, from about January 2018. The plaintiff noted that the repetitive nature of his work, which required him to use high-pressure hoses, as well as frequent bending, moving hoses and opening container doors, aggravated his symptoms.
38The plaintiff was reviewed by his general practitioner in February 2018 and prescribed analgesia, and also treated with acupuncture, all of which failed to result in any meaningful improvement in his symptoms.
39Due to progressively worsening symptoms throughout 2018, the plaintiff finally ceased work in approximately March 2018. In relation to his symptoms and complaints at the time of the examination, Mr Asaid noted that the plaintiff considered it was his lower back pain causing the most discomfort, with pain radiating down the side of both legs, all the way to his feet, and particularly he described a constant dull ache in his lower back, which develops into an occasional sharp shooting pain with bending or increased activity. The intensity of the pain varies, depending on the level of activity, and he is unable to perform any lifting as a result of the lower back pain.
40The plaintiff also complained of pain in his neck, predominantly on the right side and, again, with increased activity, he occasionally developed a sharp stabbing pain which radiates down his right arm. Furthermore, the plaintiff described increased neck pain with any movement of his neck or when looking to his left or right.
41The plaintiff also described bilateral hand and wrist pain, which caused him considerable discomfort. In particular, the plaintiff recorded that, while initially the right hand wrist caused him more pain than the left, they are now both equally symptomatic. He does experience the occasional feeling of pins and needles in his hands, particularly with cold weather. Furthermore, he considered he could only lift 1 to 2 kilograms on either side, due to the pain he experiences in both hands and wrists.
42The plaintiff complained that his sleep is constantly interrupted and he wakes from sleep almost every night due to the pain. Although he is still able to drive, he can only tolerate short distances. Furthermore, although he is still able to perform his grocery shopping, he can only carry light grocery bags.
43The plaintiff reports difficulties in such activities as showering and dressing himself due to the pain he experiences in both his lower back and both hands. His ability to perform domestic duties is also limited.
44Prior to the onset of his symptoms, the plaintiff enjoyed recreational activities such as fishing and playing tennis, but as a result of his injuries, he is no longer able to participate in these activities. The plaintiff also noted that his psychological wellbeing has been affected, in that he reports becoming isolated from friends and does not participate in social activities that he previously enjoyed.
45At the time of the examination, the plaintiff was taking paracetamol as required, employing Chinese herbal medicine and Metformin daily. He was regularly reviewed by his general practitioner and undergoing both acupuncture and cupping therapy.
46Mr Asaid had available to him the bilateral hand x-rays performed on 22 February 2018, which he noted demonstrated normal joint spaces, with mild bony spurring at the DIPJs and the presence of subchondral cysts. He considered that the x-ray features suggested early/mild DIPJ OA (that is, osteoarthritis).
47Mr Asaid also noted the MRI scan of the cervical spine performed on 13 April 2018, which demonstrated disc bulging encroaching on the cord at C3-4 and C5‑6, with no core compression or myelomalacia.
48Mr Asaid also noted an MRI scan of the lumbar spine performed on 30 May 2018, which demonstrated mild desiccation of the lumbar disc from L3 to S1 and mild annual bulging at the lumbosacral junction.
49At the time of the examination, the plaintiff informed Mr Asaid that he had a history of diabetes and various previous slips in containers at work but, in particular, no previous injury or pain in his cervical spine, lower back or bilateral hands and wrists, prior to developing the symptoms of which he was complaining. In particular, prior to 2018, he was able to perform his role unencumbered. He noted on examination:
(a) In relation to the cervical spine, the range of movement is restricted, particularly with lateral rotation, both to the right and left side. Furthermore, the plaintiff displayed paraspinal tenderness, predominantly on the right side. Upper limb neurological examination was normal, with grade five upper limb power bilaterally, and the upper limb reflexes were normal;
(b) Inspection of the lumbar spine revealed no sagittal or coronal deformity. Lumbar spine range of motion was decreased, with approximately 30 degrees of flexion and 10 degrees of extension – both these movements causing him considerable discomfort. The plaintiff was able to straight leg raise to 50 degrees bilaterally and the Lasègue sign was negative. Lower limb neurological examination was normal;
(c) There was mild swelling over the DIPJ and PIPJ of both the right and left hands. Range of wrist movement was normal bilaterally, with normal flexion, extension, radial and ulnar deviation. There was tenderness to palpation over the ulnar styloid and TFCC of the right wrist. The plaintiff also displayed tenderness to palpation bilaterally over the PIPJ and DIPJ of all fingers on both hands. No trophic changes were evident to suggest CRPS.
50Mr Asaid responded to various questions raised by the solicitors acting for the plaintiff and I refer to those questions and answers:
“(a) History given;
As stated above.
(b) Diagnosis;
Cervical spondylosis with disc bulging encroaching on the cord at C3/4 and C5/6 as demonstrated on the MRI performed on 13 April 2018.
Lumbar spondylosis.
Bilateral hand osteoarthritis.
(c) Consistency of condition with stated cause:
ie is the condition work related; AND/OR
has the worker’s employment been a contributing factor to:
(i) the worker’s condition; or
(ii) to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
Based on the history provided to me by the worker, as well as his description of his work duties of repetitive bending and the use of a hand held pressure washer, I believe his employment has likely been a contributing factor to the aggravation of his current condition.
(d)Taking into consideration the worker’s neck injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(i) fitness for pre-injury employment; AND/OR
(ii)fitness for alternate duties. If so, what restrictions are placed on the worker?
Taking into consideration the worker’s neck injury alone and his description of his current levels of pain, I do not believe that Mr. Zhai has capacity for pre-injury employment. In theory, he may have capacity for alternative duties in a more sedentary type role, avoiding any activities which involve any repetitive bending, pushing, pulling or lifting. He would also need to avoid any activities which require recurrent rotation of the neck. However, taking into consideration Mr. Zhai’s lack of English skills, and the fact that this was his first and only job in Australia, I do not envisage that he could realistically be retrained to work in a sedentary role.
(e)Taking into consideration the worker’s lower back injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(iii) fitness for pre-injury employment; AND/OR
(iv)fitness for alternate duties. If so, what restrictions are placed on the worker?
Taking into consideration the worker’s lower back injury alone, and based on the history provided to me and the pain he describes, I do not consider that Mr. Zhai could return to his pre-injury employment. In theory, he may have capacity for alternative duties in a more sedentary type role, avoiding any activities which involve any repetitive bending, pushing, pulling or lifting. However, taking into consideration Mr. Zhai’s lack of English skills, and the fact that this was his first and only job in Australia, I do not envisage that he could realistically be retrained to work in a sedentary role.
(f) Taking into consideration the worker’s left wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(iii) fitness for pre-injury employment; AND/OR
(iv) fitness for alternate duties. If so, what restrictions are placed on the worker?
Taking into consideration the worker’s left wrist injury alone, he does not have capacity to return to his pre injury employment as he would be unable to use a hand held pressure washer on a regular basis. He may be fit for alternate duties that do not require him to repetitively use his hands for any laborious tasks.
(g) Taking into consideration the worker’s right wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(iii) fitness for pre-injury employment; AND/OR
(iv) fitness for alternate duties. If so, what restrictions are placed on the worker?
Taking into consideration the worker’s right wrist injury alone, I refer to and repeat my answer to question (f).
(h) Do you consider our client’s conditions to have a substantial organic basis?
Based on the history provided to me, examination findings and the reports from radiological investigations performed, I consider Mr. Zhai’s condition has an organic basis.
(i) Necessity for further treatment; and
I would recommend for Mr. Zhai to undergo physiotherapy and hydrotherapy treatment in an attempt to improve the range of motion in his spine. He should continue to take analgesic and anti-inflammatory medication as required.
Given his persistent symptoms, it would be reasonable to conduct up to date imaging for his injuries to determine any disease progression.
(j) Prognosis.
Given the degenerative nature of his condition, as well his persisting symptoms since ceasing employment in 2018, I do not anticipate any significant improvement in his condition in the foreseeable future.”[39]
[39]See exhibit 6, report of Mr Asaid, dated 29 October 2020, at pages 51-53 DCB
51In a subsequent report, dated 17 February 2021,[40] Mr Asaid responded to a further question from the solicitor, which was:
“Do you believe your further treatment recommendations would improve Mr Zhai’s work capacity considering the injuries to his spine (neck and back) alone?
To which Mr Asaid responded:
“I refer to my medical report dated 29 October 2020 in which I stated:
‘I would recommend for Mr Zhai to undergo physiotherapy and hydrotherapy treatment in an attempt to improve the range of motion in his spine.’
[40]See exhibit 6, report of Mr Asaid, dated 17 February 2021, at page 54 DCB
This treatment recommendation was made in an attempt to provide some minor symptomatic improvement in Mr. Zhai’s ability to perform his activities of daily living and domestic duties. At the time of assessment on 29 October 2020, he was only undergoing acupuncture and cupping therapy. Additional implementation of a physiotherapy and hydrotherapy program would aim to improve his cervical and lumbar spine range of motion through an exercise program to strengthen the surrounding muscles and improve function. However, given the previously described levels of pain and disability, I do not believe that this treatment would realistically alter or improve Mr Zhai’s work capacity.”[41]
[41]See page 54 DCB
52When seen by the neurosurgeon, Dr Akil, the plaintiff gave a history that he commenced working with the employer in May 2007 and his work involved repetitive-type duties that included opening large shipping containers daily and using a high-pressure hose to clean the roof and the floor, as well as the inside of the containers. Such work also required him to open the container door, which requires him to bend and pull as hard as he can, and sometimes those doors can be stuck. Again, he was required to close the door, which required him to bend his back and push hard to lock the doors.
53In around 2018, the plaintiff commenced to feel pain in his mid and lower back region, as well as pain in his neck. His neck pain was associated with bilateral shoulder pain and he has concomitant bilateral hand pain, as well as stiffness.
54In 2018, the plaintiff attended his general practitioner, who recommended acupuncture as well as cupping, and he also sought some traditional Chinese medicine treatment.
55At the time of examination, the plaintiff complained of the following:
(a) Persistent neck pain, which occurs mainly on moving his neck in any direction, but particularly on the lateral rotational of his head. Such pain radiates towards both shoulders, and sometimes can radiate towards his elbow in cold weather, according to the plaintiff. The pain is worse on the right side compared to the left;
(b) The plaintiff complained of mid-thoracic pain which he “feels all the time”. In this respect, he informed Dr Akil that cupping and acupuncture treatment does improve the pain, although only temporarily;
(c) He continues to have lower back pain, which he describes as constant, and which gets worse when he is tired or after physical activity. Sitting or standing for longer than thirty minutes can aggravate the pain, as well as walking. He feels radiation of his lower back towards both legs, and also feels significant pain in his right knee. The radiation of pain towards both legs can go all the way to reach the ankle, and such radiation of pain occurs after exercise.
Dr Akil obtained a past history of type 2 diabetes and hypercholesterolemia, both of which he considered to be non-contributory to his current position. At the time of examination, the plaintiff was taking Panadol, as well as Celecoxib, for pain relief.
He started working with the employer in May 2007, stopping completely in about January 2018.
56On examination, Mr Akil found the plaintiff to have a reduction in the range of movement in his cervical spine in all directions, but particularly on the lateral rotation of his head. He also noted marked guarding of the paraspinal cervical muscles. Dr Akil noted that Mr Zhai did not have any particular sensory or motor deficit on the examination of his upper limbs, and his deep tendon reflexes are actually normal. With regard to the lumbar spine, Dr Akil noted that forward flexion was limited to about 20 degrees and extension limited to only a few degrees, which he would estimate as below 10 degrees. The plaintiff did not have any motor deficit in both lower limbs and had masked muscular guarding around his paraspinal lumbosacral muscle.
57Dr Akil had available the cervical spine MRI scan undertaken in April 2018, which he considered showed signs of spondylosis, particularly worse at the C3-4 level and C5-6, without any particular cord compression or any neural compression. Furthermore, Dr Akil had the lumbar MRI scan taken in May 2018, which he considered showed elements of spondylosis at the Level 3-4, L4-5 and L5-S1, but no actual neural compression on the lumbar spine.
58Dr Akil diagnosed, insofar as his specialty allowed him, that the plaintiff had suffered an aggravation of lumbar spondylosis and then, on the balance of probabilities, repetitive bending and pulling and pushing daily caused the symptoms, and that, in his opinion, his work duties related to an aggravation of his lumbar spondylosis. Furthermore, Dr Akil was of the opinion that the neck pain was an aggravation of cervical spondylosis and, again, on the balance of probabilities and the nature of his job, it was most likely that the aggravation of such spondylosis is caused by his work.
59Dr Akil did not proffer an opinion as to a diagnosis with relation to the hand condition, on the basis that was outside his particular speciality.
60Dr Akil thought the prognosis was “guarded” and that the plaintiff should see a pain specialist for systematic treatment and benefit from involving a pain management course.
61Furthermore, Dr Akil was of the opinion the plaintiff should undergo a bone scan with SPECT used so it can help with his pain management, providing more active diagnosis to pinpoint the main source of pain.
62In particular, Dr Akil was of the opinion that the plaintiff cannot return to his pre-injury duties, and sitting or standing for longer than thirty minutes would also cause a significant amount of pain for him. He notes that given his limited education, his very limited English language skills and his persistent neck and lower back pain, as well as the symptoms in both hands, getting him to perform reliably in any form of employment would be “challenging”.
63Dr Akil notes that, whereas prior to the commencement of his symptoms the plaintiff was able to do long walks, now he cannot do more than twenty minutes of walking a day before having significant exacerbation of his lower back pain. Furthermore, driving longer than thirty minutes can cause significant exacerbation of his neck pain and lower back pain.
64Dr Akil was also posed a serious of questions which he answered, and I refer to those questions and answers in his report:
“(a) History given;
Please find the answer in the body of the report.
(b) Diagnosis;
Please find the answer in the body of the report.
(c) Consistency of condition with stated cause:
ie is the condition work related; AND/OR
has the worker’s employment been a contributing factor to:
(i) the worker’s condition; or
(ii)to the recurrence, aggravation, acceleration, exacerbation or deterioration of any preexisting injury or disease.
On the balance of probabilities, I believe that the type of repetitive activities that he used to perform at work is the cause of an aggravation of his cervical and lumbar spondylosis.
(d) Taking into consideration the worker’s neck injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(i) fitness for pre-injury employment; AND/OR
(ii) fitness for alternate duties. If so, what restrictions are placed on the worker?
Please find the answer under caption Work Capacity. I do not believe that he is fit to return to his preinjury employment. Finding alternative duties as I mentioned under the caption Work Capacity can be challenging for reasons mentioned in the body of the report.
(e)Taking into consideration the worker’s lower back injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(iii) fitness for pre-injury employment; AND/OR
(iv) fitness for alternate duties. If so, what restrictions are placed on the worker?
Please see the answer to question letter C.
(f) Taking into consideration the worker’s left wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(v) fitness for pre-injury employment; AND/OR
(vi) fitness for alternate duties. If so, what restrictions are placed on the worker?
Regarding his wrist injury, this is beyond my area of expertise and I will not be able to answer this question.
(g) Taking into consideration the worker’s right wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work,
BOTH:
(vii) fitness for pre-injury employment; AND/OR
(viii) fitness for alternate duties. If so, what restrictions are placed on the worker?
Regarding his wrist injury, I will not be able to answer this question as this is beyond my area of expertise.
(h) Do you consider our client’s conditions have a substantial organic basis?
In my opinion, there are significant elements of organic basis to his current condition.
(i) Necessity for further treatment; and
Please find the answer in the body of the report.
(j) Prognosis.
Please find the answer in the body of the report.”[42]
[42]pages 58-59 DCB
65When examined by Dr Slesenger, it was noted that there were difficulties, as the internet link was poor, such difficulties extending to communication, multiple sites of injuries and language limitation.
66Dr Slesenger obtained a history that the plaintiff was employed by the employer from 2007, working full time, 7.00am to 5.00pm, but when initially employed, he worked as a truckdriver/forklift driver, and was subsequently employed as a cleaner, which required him to clean and service up to one hundred shipping containers per day, cleaning both the inside and the outside using a high-pressure hose. Dr Slesenger notes that such work requires him to work in both hot and cold environments, repetitively bend and twist, pull and push while manoeuvring the high-pressure hose, over-shoulder reach, forward reach, and grip the high-pressure hose using the trigger with his right hand and holding the length of the hose with his left hand. Although initially employed with another member of staff, he subsequently was working alone.
67The plaintiff described to Dr Slesenger a gradual onset of symptoms during the course of his employment with no significant injury. In particular, he developed multiple sites of musculoskeletal symptoms that developed due to the manual handling and the repetitive nature of his pre-injury duties. In particular, Dr Slesenger recorded that:
(a) The plaintiff initially noted lower back pain, which persisted, and was aggravated by the repetitive bending and twisting associated with pre-injury tasks. The plaintiff advised of the associated left leg pain;
(b) The plaintiff also advised of a gradual onset of neck pain, again, with no specific injury, although this pain seemed to have occurred due to the latter cause of his employment and after the onset of lower back pain. The plaintiff advised Dr Slesenger that repetitive forward reaching and over-shoulder reaching aggravated those symptoms and he developed pain in both hands, including the wrists and the digits of both hands;
(c) The plaintiff also developed bilateral shoulder pain due to the forward reaching and over-shoulder reaching requirements, and the back force from the high-pressure hose. Again, the pain developed gradually.
68The plaintiff gave a history that he attended his general practitioner in 2018 and was referred for investigation and treatment, including physiotherapy, acupuncture and medication. His symptoms persisted and he believed he was not seen by an orthopaedic surgeon, but there had been a mild variation of his symptoms due to acupuncture.
69At the time of the examination, the plaintiff informed Dr Slesenger:
(a) His lower back pain had persisted, with left leg symptoms, and he has not really responded to treatment;
(b) He has residual neck pain over the base of his neck, which has not responded to any treatment, and such pain is worse with neck flexion or extension. Furthermore, the plaintiff advised of radiating symptoms in both upper limbs, involving both hands in particular, the wrists and digits of both hands. Bilateral hand pain had persisted, with radiating features and has not responded to treatment. In particular, the plaintiff advised Dr Slesenger of residual numbness following a weakness in the hands, noting that his symptoms are worse in the morning and on waking. In particular, the plaintiff advised Dr Slesenger that his right-sided symptoms are more significant than the left, and complained of weakness, restrictive range of movement and difficultly with fine dextrous tasks, particularly on the right side;
(c) The plaintiff complained of residual bilateral shoulder pain, the right being worse than the left, causing him to have difficulty reaching, lying on either side and over-shoulder reaching.
70The plaintiff described daytime fatigue and tends to sleep regularly during the day, and has also developed frustration, although Dr Slesenger noted that he did not identify any frank depression or anxiety.
71In relation to his function, the plaintiff informed Dr Slesenger that he can walk, stand or sit for between ten and twenty minutes, and in respect to the treatment that he was presently taking – this involved Panadol Osteo, up to six a day; Celebrex, once a day; Diaformin; Lovastatin, Trajenta; topical application for his hands and Chinese medicine. He is not taking any antidepression medication and noted that his medication caused memory loss and fatigue.
72Dr Slesenger also noted that the plaintiff attends acupuncture each alternate week, attends a physiotherapist once each alternative week, he attended a psychiatrist for assessment in the past and has seen a rheumatologist, he believes, for two assessments in the past.
73The plaintiff informed Dr Slesenger that he had a past history of diabetes, for which he takes oral medication, but denied any history of operations, psychological problems or accidents.
74In relation to activities of daily living, the plaintiff gave a history that he can dress, wash, shower and toilet himself, but does so slowly.
75In relation to his social and domestic history, the plaintiff gave a history that he is separated, living alone in Geelong in a rented house, and attends to his own domestic duties, including shopping, cooking, cleaning and laundry duties, but does so in a self-paced manner. The plaintiff gave a history that he can drive an automatic car for about twenty minutes.
76The plaintiff advised Dr Slesenger that he ceased work in about January 2018 and has not returned to work since, and has been supported by a return-to-work coordinator. He was recommended to commence an English-language retraining course, but this did not take place due to the COVID restrictions. Furthermore, Dr Slesenger recorded that the plaintiff was born in China, left school at the age of eighteen, and worked as an administrator in a logistics company, and also ran his own electrical installation company before moving to Australia in 2007.
77The plaintiff does have qualifications as a welder, a forklift licence and truck licence, but has poor English-language skills and only has basic computer skills. The plaintiff is naturally right handed.
78Dr Slesenger made an examination by way of Telehealth and notes he was unable to perform many of the usual examination procedures. However, as noted in his report, he has reported various movements of both arms, both wrists, both elbows and the cervical and lumbosacral spines.
79Dr Slesenger also had available various x-rays and MRI scans at the time of his examination, together with various reports from the treating general practitioner, Dr Chiang, and a report from the Panel.
80Ultimately, under the heading “Summary”, Dr Slesenger notes:
“Mr Zhai presents with a complex history of multiple musculoskeletal symptoms developing during the course of his employment whilst working as a Truck Driver/Forklift Driver/Cleaner at CC Containers and he advised of heavy and repetitive manual tasks, in particular noted that whilst cleaning the containers, he was required to manoeuvre high pressure hose.
He advised of a gradual onset of neck, lower back, bilateral upper limb and bilateral hand symptoms developing during the course his employment and the symptoms developed insidiously and have persisted.
He has been managed conservatively to date and has been treated with physiotherapy, acupuncture and continues to attend his GP. He has not undergone injections and he has not been seen by a pain specialist.
Despite treatment his symptoms persisted. He advised that he ceased employment in 2018. He has not returned to work and currently, there is no return to work plan in place. He has been recommended to undergo an English language retraining course, but this did not take place due to the COVID restrictions.
He is currently living alone and attending to his own domestic tasks.
ASSESSMENT
Responses to specific questions:
a) History given;
The history is documented above.
b) Diagnosis;
Mr Zhai presents a difficult case to assess. I am satisfied that based on the evidence, it is likely that he sustained:
● Cervical spine:
o Soft tissue injury.
o Aggravation of degenerative disease.
o Chronic neck pain with radiating symptoms, but no confirmed evidence of radiculopathy.
● Lumbar spine:
o Soft tissue injury.
o Aggravation of degenerative disease.
o Chronic lower back pain with radiating symptoms, but no confirmed evidence of radiculopathy.
● Bilateral hand:
o Aggravation of pre-existing degenerative disease.
o Chronic bilateral hand pain.
With regard to his right and left shoulder symptoms, I am satisfied that there is an element of his symptoms that relate to radiating symptoms from the cervical spine. I also have concerns that there maybe joint specific pathology, both in right and left shoulder and I recommend that he undergoes further evaluation (x-ray, ultrasound scan and possibly an MRI scan of both shoulders).
I am also of the opinion that there is at least an partial functional element to his symptoms. However, taking the evidence as a whole, I am of the opinion that this is a minor consideration. In support to this I did not identify any significant improvement in his range of movements upon distraction and other nonorganic features were not identified.
c) Consistency of condition with stated cause:
i.e. is the condition work related; AND/OR
Has the worker’s employment been a contributing factor to:
i. The worker’s condition; or
ii.To the recurrence, aggravation, acceleration, exacerbation or deterioration of any preexisting injury or disease.
This is a very difficult question to answer based on the evidence presented, in particular I have not seen copies of the pre and post-injury clinical records. However:
● I note the pre-injury job demands.
● I note the paced nature of these activities.
● The repetitive nature of these tasks.
● The manual handling and postural requirement.
Taking the evidence as a whole, I am satisfied that the pre-injury job demands are a materially contributing factor to the cervical spine, lumbar spine and bilateral hand impairment. With regard to Mr Zhai’s shoulder symptoms, I recommend that he undergoes further evaluation before addressing causation.
d) Taking into consideration the worker’s neck injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work;
BOTH:
i. Fitness for pre-injury employment; AND/OR ii. Fitness for alternate duties. If so, what restrictions are placed on the worker?
Based on the cervical spinal injury alone, I am of the opinion that Mr Zhai could not return to his preinjury duties.
Taking into consideration his past employment history, his literacy limitations, his qualifications, his basic computer skills and his focused employment history within Australia, I am of the opinion that he is unlikely to be able to return to work in a role for which he has suitable training experience on a consistent and reliable basis.
e) Taking into consideration the worker’s lower back injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work;
BOTH:
i. Fitness for pre-injury employment; AND/OR
ii. Fitness for alternate duties. If so, what restrictions are placed on the worker?
Based on the lumbar spinal injury alone, I am of the opinion that Mr Zhai could not return to his preinjury duties.
Taking into consideration his past employment history, his literacy limitations, his qualifications, his basic computer skills and his focused employment history within Australia, I am of the opinion that he is unlikely to be able to return to work in a role for which he has suitable training experience on a consistent and reliable basis.
f) Taking into consideration the worker’s left wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work;
BOTH:
i. Fitness for pre-injury employment; AND/OR
ii. Fitness for alternate duties. If so, what restrictions are placed on the worker?
I did not identify a joint specific left wrist impairment. There may be an element of wrist pain due to radiating symptoms form the cervical spine and possibly due to radiating symptoms from the degenerative disease in the left hand. However, I note the well-preserved range of movements in the left wrist and absence of tenderness around the left wrist.
g) Taking into consideration the worker’s right wrist injury alone and disregarding any consequences flowing from any other injury and consequential psychiatric sequelae, please comment on the worker’s current fitness for work;
BOTH:
i. Fitness for pre-injury employment; AND/OR
ii. Fitness for alternate duties. If so, what restrictions are placed on the worker?
I did not identify a joint specific right wrist impairment. There may be an element of wrist pain due to radiating symptoms form the cervical spine and possibly due to radiating symptoms from the degenerative disease in the right hand. However, I note the well-preserved range of movements in the right wrist and absence of tenderness around the right wrist.
h) Do you consider our client’s conditions have a substantial organic basis?
As noted above, this is a difficult question to answer based on the evidence presented. I am satisfied that there is an organic element to the cervical spine, lumbar spine and bilateral hand impairment. Although, I am also of the opinion that there is at least impart (sic) of a psychogenic element to Mr Zhai’s presentation.
His bilateral shoulder impairment is more difficult to address as he requires further investigation.
i) Necessity for further treatment;
One of the salient aspects of Mr Zhai’s presentation is the focused/limited treatment to date. I note that he remains under the care of an acupuncturist, a physiotherapist and his GP. I recommend that he be seen by a pain specialist to whether he is candidate for a more holistic approach. I also encourage him to engage in a self-managed exercise program to address his deconditioning.
With regard to further physical therapy, I recommend that physical therapy be incorporated into a pain management approach and I recommend that he transitions form standalone physiotherapy/ acupuncture.
I also recommend that consideration be given for him to review his use of medication (as his pain
control appears to be suboptimal).
j) Prognosis.
The prognosis must be guarded given:
● Mr Zhai’s poor response to treatment to date.
● Multiple sites of injury.
● His current job detachment.
● His social isolation.
These factors are negative prognostic indicators and whilst there are opportunities further treatment, I do not anticipate a significant alteration in his presentation in the foreseeable future.”[43] (sic)
[43]See pages 96-99 PCB
81The plaintiff also relies on the report of the psychiatrist, Dr John Gill, who examined the plaintiff on 26 February 2020, at the request of the insurer of the employer.[44] At that time, the plaintiff gave a history to Dr Gill that his work duties involved cleaning containers with high-pressure washing, and although he was not able to give a specific date of onset of injury, indicated that he had gradually developed “arthritis”. The plaintiff also gave a history that due to worsening back pain he consulted his general practitioner, Dr Chiang, and was unable to continue work.
[44]See pages 75-85 PCB
82The plaintiff, over time, had developed constant pain, which varies in severity, and that he has pain in his hands, arms and shoulders, and also his lower back, which radiates to his legs. The plaintiff was of the opinion that his pain and arthritis would prevent him from working, and although he had been treated with medication and acupuncture, such treatment had reduced his symptoms to a “slight extent”. The plaintiff complained that he gets more pain in cold weather, or if he stands for prolonged periods of time. He also attends a Chinese practitioner on a weekly basis, where he has massage and cupping, which is also of some help.
83When questioned about psychological symptoms, the plaintiff indicated that he felt frustrated because of his pain and is easily angered. He did not acknowledge being depressed, but as such, he was just frustrated. In particular, he complained to Dr Gill that his sleep pattern is broken because of his pain, his energy is diminished and he feels very weak in his back.
84The plaintiff says he has satisfactory concentration, but he easily forgets things, and sometimes he feels his life is not worth living when he has flare ups of pain.
85The plaintiff has not been treated with any psychotropic medication, and he has not had any psychological therapy. The plaintiff also indicated that in August 2018 his mother died, and in November 2018 he had to sell his house due to financial stress, and during that year, when his pain was very severe, he had felt very close to acting on suicidal ideation. The plaintiff also noted that, with the aftermath of his work injury claim and the financial stress, his marital relationship broke down, culminating in separation.
86The plaintiff currently lives in rental accommodation and spends most of his time lying in bed. He informed Dr Gill that he has lost interest in things that he previously enjoyed, such as playing tennis, going fishing and walking the dog.
87The plaintiff informed Dr Gill that he had no prior history of psychiatric problems and there is no known history of psychiatric disorder. The plaintiff confirmed that he has a history of type 2 diabetes and elevated cholesterol levels.
88At the time of examination, the plaintiff was taking Celaxib, Panadol Osteo, paracetamol, caffeine tablets, Lipitor and Diaformin. He also takes various Chinese remedies.
89Dr Gill also performed a mental state examination, and it was noted that although cooperative in answering questions, the plaintiff appeared to be “highly irritable”, speaking loudly and making various gestures in response to most of the questions that were raised. Although he loudly indicated his feelings of frustration, there did appear to be coherent thought processes and his thought did not indicate the presence of any delusional thinking or psychotic phenomena. He did not display any cognitive deficits during the interview and his perception was very focused upon his somatic symptoms. His level of insight and judgement was unclear and his affect was highly irritable and dysthymic.
90Ultimately, Dr Gill offered his summary and opinion in the following way:
“In summary, Mr Zhai is a 53-year-old Chinese immigrant presenting with a history of developing pain symptoms whilst employed as a cleaner with Medlog Australia Pty Ltd trading as CC Containers. He reported developing symptoms of arthritis and back pain culminating in constant, albeit fluctuating, pain affecting his hands, arms, shoulders, lower back and legs. He appeared to attribute the pain to his work duties in which he was a cleaner engaged in high pressure washing of containers. He had commenced that employment in 2007. The onset of the current symptoms appears to be February 2018. He consulted his general practitioner and was prescribed medications and given acupuncture which has had some effect in reducing his level of pain. However, he has maintained that his symptoms prevent him from being able to work. He has also had some traditional Chinese medical treatment including massage and cupping.
Mr Zhai reported being very irritable, angry and highly frustrated by his physical condition with persistent pain. His sleep pattern is broken by his pain symptoms and he also described some lowered energy and becoming forgetful. However, he did not show evidence of frankly depressed mood. He has not been prescribed psychotropic medication or received any psychological therapy. Mr Zhai described other stressors occurring during 2018 in addition to his physical condition. His mother died in August 2018 and in November 2018 he was in financial distress and had to sell his home. In addition, his marital relationship deteriorated and he and his wife separated during that year.
At interview, Mr Zhai presented as a casually dressed Chinese man of slim physique who appeared highly irritable although cooperative in answering questions. The interview was conducted with the assistance of a Mandarin interpreter and Mr Zhai appeared to have only very limited understanding of English. He spoke loudly and gesticulated vigorously in expressing his frustration and irritability in relation to his condition. He appeared highly preoccupied with his pain symptoms.
I now address your schedule of questions.
1.What is the worker’s current psychiatric diagnosis? Please answer this in terms of Diagnostic and Statistical Manual of Mental Disorders (DSM).
In my opinion, he probably has an Adjustment Disorder with anxiety. He shows features of extreme preoccupation with his physical symptomatology of pain but it is unclear whether this is reactive to work related physical injury or whether it is associated with the insidious onset of musculoskeletal symptoms which are not work related.
2.Please detail the worker’s current symptoms and comment on their level of severity. In your opinion, has the worker’s condition improved, deteriorated or remained the same (since work cessation or since your last examination)? Please elaborate on your response.
I have outlined within the body of this report the range of symptoms as described by the worker which appear to be of at least moderate severity.
His condition has not improved significantly since work cessation although he did report some mild benefit from the physical treatments which he has received.
3. Please detail the worker’s account of their day to day functioning with reference to:
·His elbows showed a full range of movement, but with complaints of pain on both sides, right greater than left, with no localising abnormalities around the elbows, but he has diffuse tenderness throughout both upper arms and forearms.
·His thoracolumbar spine movements while sitting and standing are all markedly restricted, with pain in all directions. Axial compression gives him neck pain, but not low back pain, but now low back pain is noted with simulated rotation.
·He has diffuse tenderness around the entire thoracolumbar spine and the adjacent paravertebral areas and buttocks.
·Neurologically, his grip strengths are nine on the right and nineteen on the left.
(d) When examined by Dr Barton on 17 January 2019, he noted:
·There was a considerable degree of “illness behaviour” apparent throughout the consultation, with “much grimacing and complaints of pain”. The plaintiff struggled to remove and replace his jacket because of his hands symptoms.
·Careful measurement of arm circumference showed the right and dominant arm to be of slightly greater muscle bulk than the left, when measured above and below the elbows. There was no wasting in the small muscles of either hand. There was a normal keratinisation pattern in both hands.
·Specific examination of both hands showed a normal range of wrist, thumb and finger movements. There were no palpable flexible nodules, no triggering and no particular evidence of any crepitus, or problems with the flexor tendons in the palm. There was no particular palm tenderness.
·Grip strength was measured at thirty on the right and fifteen on the left.
·Neurological examination of the limbs revealed normal power, sensation and reflexes.
Dr Barton was of the view that the plaintiff had an “illness belief” but would be physically capable of work.
(e) When examined by Dr Umberto Boffa on 23 March 2020, Dr Boffa noted:
·The plaintiff sat through the interview but became agitated and shouting at times.
(f) When examined by Dr Joseph Slesenger in early January 2021, he observed:
·There was verbalisation and grimacing on the part of the plaintiff.
·The plaintiff walked slowly with a pronounced left-sided limp with reduced weightbearing on the left side.
When queried by the solicitors as to whether he considered that the plaintiff’s conditions had a “substantial organic basis”, Dr Slesenger answered:
“As noted above, this is a difficult question to answer based on the evidence presented. I am satisfied that there is an organic element to the cervical spine, lumbar spine and bilateral hand impairment. Although, I am also of the opinion that there is at least impart (sic) of a psychogenic element to Mr Zhai’s presentation.”
However, Dr Slesenger also stated, in part, under the heading “Assessment”, that:
“I am also of the opinion that there is at least an partial functional element to his symptoms. However, taking the evidence as a whole, I am of the opinion that this is a minor consideration. In support to this I did not identify any significant improvement in his range of movements upon distraction and other nonorganic features were not identified.”
In such circumstances it is not clear what weight Dr Slesenger attached to his comments that there was “verbalisation and grimacing” on the part of the plaintiff and that the plaintiff “walked slowly with a pronounced left-sided limp with reduced weight bearing on the left side”.
233Obviously enough, similar considerations apply to pecuniary loss consequences under paragraph (a) of the definition of “serious injury”. In this respect, it would be necessary for the plaintiff to establish that there is a substantial organic basis for any “pecuniary loss” consequence relied on. In my view, similar issues would arise in the plaintiff establishing an appropriate organic component causing the alleged “pecuniary loss” consequences relied on.
234As I have already recorded, those acting for the plaintiff require the medico-legal specialists to answer a series of questions, one of which was generally:
“Do you consider our client’s conditions to have a substantial organic basis?”
235Such question was responded to as follows:
(a) Thye orthopaedic surgeon, Mr Asaid, stated:
“Based on the history provided to me, examination findings and the reports from radiological investigations performed, I consider Mr. Zhai’s condition has an organic basis.”[148]
(b) The neurosurgeon, Dr Hasem Akil, stated:
“In my opinion, there are significant elements of organic basis to his current condition.”[149]
[148] See exhibit 6, report of Mr Raf Asaid, dated 29 October 2020, at page 52 DCB
[149]See exhibit 6, report of Dr Hasem Akil, dated 20 January 2020, at page 59 DCB
(c) I have already referred to the comments of Dr Slesenger earlier in this Judgment.
236I consider such evidence not to be particularly satisfactory. Is that evidence meant to mean that the plaintiff’s complaints of pain and restriction of movement in, for example, the low back and neck, is explained totally on an organic basis or is partially on an organic basis. As was pointed out in Meadows v Lichmore,[150] the applicant would need to be able to separate the physical contributions of pain and suffering from the psychological in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injuries satisfy the statutory test.
[150] Op cit
237Taking all of the evidence into account, the plaintiff has not discharged his onus in “disentangling” the organic from the psychological.
238It is also important to bear in mind that, as submitted by counsel for the defendant, it is not permitted to aggregate various impairments (or injuries) to establish a “serious injury” – save and except, as I have pointed out, impairment of the cervical spine can be aggregated with impairment of the lumbar spine for the purposes of one body function. This is particularly relevant in the circumstances of this case as demonstrated by the following examples during the course of evidence:
(a)MR McKENZIE:
Q:“And in your most recent affidavit you say that - this is at p.12, Your Honour, Mr Zhai, in your most recent affidavit you say you’ve begun to take medication on a daily basis, and you take Panadol every day, two tablets up to three times a day. Mr Interpreter, can you - - - ?---
A:Yes.
Q:And you also take anti-inflammatories such as Celebrex from time to time, is that the case?---
A:Yes.
Q:And those medications, the Panadol and the Celebrex, they’re for pain in your neck, your low back, your shoulders, your wrists, your hands, your legs, that’s right isn’t it?---
A:Yes.”[151]
[151] T60, L24 – T61, L4
(b)Q: “It’s been suggested that you could work at – work as say a forklift driver or a truck driver, they’re jobs that you’re qualified for, aren’t they?---
A:At the moment I cannot do so because of the pain all over my body.
Q:So, it’s the pain all over your body that’s stopping your from doing any work, is that what your tell His Honour?---
A:Yes.
Q:And so, I just want to get a list of all the pain, it’s pain in your neck, low back, correct?---
A:Yes.
Q:And mid-back, your middle back?---
A:Yes.
Q:And your shoulders, both shoulders?---
A:Yes.
Q:Both arms?---
A:Yes.
Q:Both elbows?---
A:Yes.
Q:Both wrists?---
A:Yes.
Q:Both hands?---
A:Yes.
Q:Both legs?---
A:Yes.
Q:Both knees?---
A:Yes, yes.
Q:Have I left anything out, is there any other part of your body that means that you can’t work?---
A:No.
Q:So, whatever job, if I suggest a driving job to you, it’s all of those problems that mean that you can’t work, is that the situation?---
A:Yes.
Q:So, if it’s work as a courier, you can’t do that job because of all these problems that you just told His Honour about?---
A:Because with the courier you need to lift the objects.
Q:As a forklift driver, that’s - you can’t do that job because of all the problems that you’ve told His Honour about, the neck, the mid back, the lower back, arms, legs, all those problems, they stop you working; is that right?---
A:Yes.
Q:And work as a pick packer involving picking things from a - picking things and assembling things into boxes, putting things into boxes ready to be sent off to somewhere else, you can’t do that work because of your neck, your mid back, your low back, your shoulders, your arms, your hands, your wrists, your legs, your knees; is that right?---
A:Yes.
… .”[152]
[152] T61, L17 – L62, L20
239The final matter which I address is whether there is any basis for the plaintiff to be granted leave to bring common law proceedings for both “pain and suffering” damages and “pecuniary loss” damages on the basis that he has a permanent severe mental or permanent severe behavioural disorder within the meaning of paragraph (c) of the definition of “serious injury” contained in s325(1) of the Act. As has been pointed out earlier in this Judgment, those acting for the plaintiff submit that the plaintiff suffers a psychiatric injury consisting of anxiety and/or depression said to have occurred as a consequence of the organic injuries referred to under paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act.
240In support of this limb of the claim, the plaintiff relies on the report of the psychiatrist, Dr John Gill, who examined the plaintiff on 26 February 2020 at the request of the insurer of the employer.[153] As reported by Dr Gill, when questioned about psychological symptoms, the plaintiff indicated that he felt frustrated because of his pain and is easily angered. The plaintiff did not acknowledge being depressed, but as such, he was just frustrated. He complained to Dr Gill that his sleep pattern was broken because of pain, his energy is diminished, and he feels very weak in his back. Furthermore, he complained he has satisfactory concentration but easily forgets things, and sometimes feels life is not worth living when he has flare-ups of pain.
[153]See pages 75-85 PCB
241Dr Gill reports that he performed a mental state examination, and it was noted that, although co-operative in answering questions, the plaintiff appeared to be “highly irritable”, speaking loudly and making vigorous gestures in response to most of the questions that were raised. Dr Gill noted that although the plaintiff loudly indicated his feelings of frustration, there did appear to be coherent thought processes, and his thoughts did not indicate the presence of any delusional thinking or psychotic phenomena. The plaintiff did not display any cognitive deficits during the interview, and his perception was very focused upon his somatic symptoms. His level of insight and judgment was unclear, and his affect was highly irritable and dysthymic.
242Dr Gill formed the opinion that the plaintiff “probably has an adjustment disorder with anxiety”.[154] Dr Gill did note that the plaintiff showed features of extreme preoccupation with his physical symptomology of pain, but he was unclear whether this was reactive to work-related physical injury or whether it was associated with the insidious onset of musculoskeletal symptoms which are not work related.
[154] See exhibit 9, report from the psychiatrist, Dr John Gill, dated 6 March 2020, at page 72 PCB
243Dr Gill was of the opinion that the symptoms suffered by the plaintiff were “at least of moderate severity”[155] and he noted that his condition had not improved significantly since work cessation. Dr Gill was also of the opinion that the plaintiff’s impaired motivation, irritability and self-perception of invalidity are substantial impediments to his rehabilitation.
[155] See exhibit 9, report from the psychiatrist, Dr John Gill, dated 6 March 2020, at page 72 PCB
244Dr Gill considered the plaintiff unfit for work, and made the comment:
“If Mr Zhai’s physical symptomatology is accepted as work related, I would consider that his incapacity for work from a psychiatric perspective is still materially contributed to by the claimed injury.”[156]
[156] See exhibit 9, report from the psychiatrist, Dr John Gill, dated 6 March 2020, at page 76 PCB
245After a consideration of all of the evidence, I do not consider that there is any reasonable basis for accepting that the plaintiff suffered a work-related “permanent severe mental or permanent severe behavioural disturbance or disorder”. I have come to such conclusion for the following reasons:
(a) Dr Gill is the only doctor suggesting that the plaintiff has an overt psychological problem and even his opinion seemingly is based on accepting that the various injuries claimed by the plaintiff are compensable, giving rise to the organic symptoms which he claims which in turn has precipitated the Adjustment Disorder with Anxiety as diagnosed by Dr Gill.
Given that I have found that the plaintiff suffers no ongoing compensable injuries, the basis of such diagnosis falls away;
(b) At no time has the treating general practitioner, Dr Chiang, formally diagnosed the plaintiff with any psychiatric or psychological conditions. I do refer to exhibit “G” which are the clinical notes of Dr Chiang. In particular, I note that those clinical notes run from 22 February 2018 to late April 2018 and in particular, the only reference to any psychological state is on Sunday, 22 April 2018 when, under the heading “Examination”, the doctor has recorded “Exhibits signs of anxiety”. At no times over the years that Dr Chiang has treated the plaintiff has he been referred to a psychiatrist or psychologist or seemingly prescribed any type of medication for such a condition.
I do refer to the report of Associate Professor George Mendelson[157] and in particular, to page 97 of the Defendant’s Court Book where Associate Professor Mendelson states:
[157] See Exhibit “C”, report of Associate Professor Mendelson, dated 4 February 2021, at pages 88-112 DCB
“I note that Dr Chiang’s report dated 31 May 2020 referred to a report by a Dr GilI, which has not been made available to me, and stated with reference to Dr Gill’s comments:
‘While I agree that Mr. Zhai might well be suffering from some degree of depressive or mood disorder (which I believe is more due to the current Covid-l9 pandemic rather than due to the W/C injury alone), antidepressant may not be beneficial and could potentially cause more side effects. Psychological counselling with Chinese Mandarin speaking psychologist might work better.’”
The report of Dr Chiang dated 31 May 2020 was not contained in the material relied on by the plaintiff but obviously enough has been exchanged given its availability to Associate Professor Mendelson.
(c) The plaintiff has also been examined by the psychiatrist, Associate Professor George Mendelson, on 4 February 2021,[158] although Associate Professor Mendelson conducted the interview via a Telehealth consultation, to which Associate Professor Mendelson noted that it was “not possible to evaluate a person’s affect in the same way as can be done during a face-to-face consultation”.[159]
Ultimately, Associate Professor Mendelson opined that based on the history given to him by the plaintiff and his observations on mental status examination, he did not have any diagnosable mental disorder. Associate Professor Mendelson noted that the basis for his opinion that the plaintiff does not have a mental disorder is that his emotional symptoms and his observations on mental status examination did not, in his view, meet the diagnostic criteria or threshold for a finding of a specific diagnostic or psychiatric disorder.
I should point out that the satisfaction of paragraph (c) of the definition of “serious injury” contained within the Act does not necessarily require a finding of a specific psychiatric disorder. However, in the circumstances of this case, Dr Gill did find a specific psychiatric disorder – that being an Adjustment Disorder with Anxiety.
(d) I also consider that it would be difficult for the plaintiff to establish that any such finding under paragraph (c) of the definition of “serious injury” is “permanent” within the meaning of the Act, one would have thought that in the event that such a condition was diagnosed, treatment would begin no doubt with the hope to eradicate symptoms and/or reduce them significantly. I do accept that the prognosis rendered by Dr Gill is pessimistic, but he does ultimately say:
“… He has not had any psychological or psychiatric treatment. He might potentially benefit from psychotropic medication and counselling. A trial of a suitable antidepressant would be reasonable.
The current physical treatment is presumably orientated toward potential return to work.
I would recommend a trial of an antidepressant as this may have some anxiety reducing and calming effect on his irritability and dysthymic mood.”[160]
[158] See Exhibit “C”, report of Associate Professor Mendelson, dated 4 February 2021, at pages 88-112 DCB
[159] See report of Associate Professor Mendelson, at page 90 DCB
[160] See report of Dr Gill (op cit), at pages 80-81 PCB
(e) It is also to be noted that the plaintiff informed him that his mother died in August 2018, in November 2018 he had to sell his house because of financial stress and following his work injury claim and financial distress, his marital relationship broke down, culminating in separation (and now divorce). Of course, all of these matters would have to be viewed as potential stressors to any psychiatric or psychological condition.
246After a consideration of all of the evidence, I am not satisfied that the plaintiff would establish a serious injury under paragraph (c) of the definition of “serious injury” within the meaning of the Act. I should add that the case was put by the plaintiff that it was a result of his various “organic” pains in the various parts of the body to which reference has been made which gave rise to the allegation under paragraph (c) of the definition of “serious injury”. Such an approach is understandable given the opinion of Dr Gill.
247There was never any suggestion that the various pains suffered by the plaintiff were generated by psychological mechanisms and thus fall within s325(2)(i) of the Act, which provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise. The whole thrust of the plaintiff’s case is that he had compensable injuries. In general terms, I refer to the decision of Zhang v Joy Foods Australia Pty Ltd,[161] a decision of the Victorian Court of Appeal which in a general way refers to these types of issues.
[161] Op cit
248I consider that the proceeding must be dismissed and I will hear the parties on the question of costs.
Annexure “A”
The plaintiff tendered the following documents:
Exhibit 1
· Affidavit of the plaintiff, sworn on 16 December 2019.
· Affidavit of the plaintiff, sworn on 18 February 2021.
(Such documents are found at pages 5-13 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· Particulars of Injury
(Such document found at page 23 of the PCB).
Exhibit 3
· Statement of calculations in determining “without injury” earnings.
(Such document found at page 24 of the PCB).
Exhibit 4
· Reports of the general practitioner, Dr Stanley Chiang, dated 28 March 2018; 26 July 2018; 16 February 2001 and 10 January 2021.
(Such documents found at pages 27-32 of the PCB).
Exhibit 5
· Medical Panel Opinion and Reasons, dated 11 December 2018.
(Such documents found at pages 33-46 of the PCB).
Exhibit 6
· Reports of the orthopaedic surgeon, Mr Raf Asaid, dated 29 October 2020 and 17 February 2021.
· Report of the neurosurgeon, Dr Hazem Akil, dated 20 January 2020.
· Report of the occupational physician, Dr Joseph Slesenger, dated 15 February 2021.
(Such reports found at pages 47-54 and pages 87-99 of the PCB).
Exhibit 7
· An X-ray of both hands, dated 22 February 2018.
· An MRI scan of the cervical spine, dated 13 April 2018.
· An MRI scan of the lumbar spine and sacroiliac joins, dated 20 May 2018.
(Such reports found at pages 60-63 of the PCB).
Exhibit 8
· Claim Form lodged by the plaintiff, dated 22 April 2018.
· Notice of Acceptance of Claim, dated 22 May 2018.
(Such documents found at pages 65-74 of the PCB).
Exhibit 9
· Medico-legal report from the psychiatrist, Dr John Gill, dated 6 March 2020, who examined the plaintiff on behalf of the defendant.
· Medical examinations of psychiatrist, Dr John Gill, dated 2 June 2020, who examined the plaintiff on behalf of the defendant.
(Such reports found at pages 68-81 of the Defendant’s Court Book (“DCB”)).
Exhibit 10
· Statement of Mr David Muir, dated 15 May 2018.
(Such statement found at pages 165-170 of the DCB).
The defendant tendered the following documents:
Exhibit “A”
· Notice of termination of weekly payments and medical and like expenses, dated 21 June 2018.
· Plaintiff’s Claim for Impairment Benefits form, together with solicitor’s enquiry form, undated.
· Letter from CGU to the plaintiff, dated 20 July 2018.
· Letter from the solicitors, Henry Carus & Associates, serving impairment benefits claim, dated 15 August 2018.
· Letter from CGU to the plaintiff, dated 24 August 2018.
· Letter from Zaparas Lawyers to CGU, dated 13 December 2018.
(Such materials found at pages 15-32 of the DCB).
Exhibit “B”
· Conciliation Outcome Certificate, dated 4 March 2019.
(Such document found at pages 36-37 of the DCB).
Exhibit “C”
· Reports of the rheumatologist, Dr Tony Kostos, dated 29 May 2018 and 16 November 2020.
· Report from the occupational physician, Dr David Barton, dated 18 January 2019.
· Reports from the occupational physician, Dr Umberto Boffa, dated 23 March 2020 and 28 May 2020.
· Report from the psychiatrist, Associate Professor George Mendelson, dated 4 February 2021.
(Such documents found at pages 38-46; pages 63-67; and pages 82-112 of the DCB).
Exhibit “D”
· WorkAble Consulting CSS report, dated 29 May 2019.
· WorkAble Consulting 130 Week Vocational Assessment report, dated 29 January 2020.
· WorkAble Consulting Retraining Outcomes Report, dated 20 April 2020.
· WorkAble Consulting Subsequent Vocational Assessment report, dated 18 May 2020.
· WorkAble Consulting Supplementary 130 Week Vocational Assessment Report, dated 18 June 2020.
(Such material found at pages 113-153 of the DCB).
Exhibit “E”
· Defendant’s Statement of Calculations (“without injury” earnings and details of what the plaintiff could earn in suitable employment).
Exhibit “F”
· Statement of the plaintiff, dated 15 May 2018.
(Such statement found at pages 158-164 of the DCB).
Exhibit “G”
· Clinical notes of Dr Stanley Chiang.
(Such notes found at pages 184-186 of the DCB).
Subsequently, with agreement of the parties, the Court was forwarded a copy of a CT scan of the lumbar spine undertaken by the plaintiff on 18 February 2021. It was agreed to have that document added to the radiology tendered by the plaintiff pursuant to exhibit 7.
0
12
0