vsca - workcover.vic.gov.au€¦ · consequences attributable to the physical injury satisfy the...

IN E COU COURT OF VI RIA Revised(Not) Restricted

(Not) Suitable for Publication

Case No. Cl-10-06111

Plaintiff

Defendant

v

AT MELBOURNEc L DIVIS toNSER IOUS INJURY

DENHAM ANTHONY RAYMOND

ADVAL AUSTRALIA PTY LTD

Subject:Catchwords:Legislation Cited:Cases Cited:

Judgment:

APPEARANCES:

For the Plaintiff

For the Defendant

COUNTY COURT OF VICTORIA250 William Street, Melbourne

HIS HONOUR JUDGE JORDAN

Melbourne

8, 11, 12and 13 November2013

20 November 2013

Raymond v Adval Australia PtY Ltd

[2013]VCC 1748

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury - injury to spine, chronic pain disorder

Accident ComPensation Acf 1985

Etias v TAC t20131 vscA 123; Petkovski v Galletti [1994] 1 VR 436.;

Fokas v Sfaff Austratia Pty Ltd t2o13l VSCA 230; Aburrow v Networkpersonnet & Worksafe iictoria l2113l VSCA 46; Transport Accident

Commission v ZePic [2013] VSCA 232

Application dismissed.

Counsel Solicitors

Ryan Carlisle ThomasMr I Fehring withMr C Nettlefold

Ms A Ryan Minter Ellison

HIS HONOUR

This is a claim for leave to bring proceedings under s134AB(16) of the

Accident Compensation Act 1g85 ("the Act") for damages for both pecuniary

loss and pain and suffering.

The plaintiff relies on the paragraph (a) definition of "serious" with respect to a

spinal injury described as aggravation of pre-existing spinal degeneration. He

also relies on the paragraph (c) definition of "serious" incorporating the

stronger word "severe".1 The psychiatric disorder is described as a chronic

pain disorder and adjustment disorder wíth depression and anxiety.

The defendant admits a compensable injury was suffered under both

paragraphs (a) and (c).2 Both conditions to some extent involve alleged

aggravations, so an analysis of the before and after picture will be required.3

The issues for determination are whether the paragraph (a) injury is ',serious,,

and whether the paragraph (c) injury is "severe" as defined in the Act. These

issues raise the question of disentanglement, as well as credit, in the

circumstances of this case.

lnote the recent repeal of s134AE of the Act and the Explanatory

Memorandum and second Reading speech that accompanied the repeal.

Nevertheless, clear, proper and adequate reasons are required. lt has been

said often that some serious injury applications involve a substantial amount

of "value judgment" which does not, of itself, admit detailed reasoning that is

explicit in certain cases.

It should be stated in this case that there is a large number of medical and

radiologícal reports covering medical evidence over some 20 years or so. ln

determining whether or not the injuries qualify as serious, I have not had the

Elias v TAC 120131VSCA 123, paragraph 56Transcript ("T'), T 8-10Petkovski v Galletti[1994] 1 VR 436; PCB 30; Dr T Entwiste DCB 42e and Mr p Rustomjee pCB 160

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advantage of hearing from any doctors in the witness box' The court is left

with trying to assess a before and after picture in relation to this case that both

from the plaintiff's affidavit and oral evidence and the medical reports is in

many ways unsatisfactory and incomplete'

very recent authority sets out the two-step task involved in disentangling in

cases where paragraphs (a) and (c) are relied upon. lt has been described as

requiring an approach as follows:

"...rhe first step is to ask whether tnî: 'å,ä:':;:"iìti?1"":ÍS'":i:'ìßicourse, if the Pain and sufferingcriterion - then the applicant will

ny 'disentangling' of the physical

contributions to the pain and suffering from the psychological

contributions'

not - or cannot be - answeredll need to take the next steP and

will need to be able to seParate thering from the PsYchological, in

that the Pain and suffering

consequences attributable to the physical injury satisfy the statutory

test."a

The plaintiff is aged 48 years and he came to this country from Sri Lanka in

1978. He has mostly worked in printing and started with the defendant

company on 25 october 2004. He alleges he injured his back some

five weeks later, on 1 December 2oo4 (the 2004 injury). ln 1992 he suffered a

back injury (the 1992 injury) which troubled him through the 1990s but he said

he was working full time without restriction up to Decembe¡ 2oo4'5

Four affidavits have been sworn by the plaintiff between 22 June 2010 and

30 September 20136 regarding the consequences of the 2004 injury' ln view

of the evidence that has emerged in this case, they are a very inadequate

account of the plaintiff's medical and work history up to and after 1 December

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Fokasv staff Austratia Pty Ltd l2ol3lvscA 230, paragraph 5

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10 For example, the first affidavit sworn almost six years after the accident barely

mentions anything remotely connected to a paragraph (c) severe mental or

behavioural disorder. lt alludes in paragraph 39 to only this:

"l did suffer some depression prior to being injured in Decemb er zoo4.Nowadays I feel more anxious and depreðsed than ever before at mysituation,"T

11 The second affidavit, on 27 February 2012, is focussed on the paragraph (a)

injury with no depression or anxiety being mentioned at all.8 On 1 October

2012, the third affidavit emphasises the alleged consequences of the physical

injury to his back and concludes with the statement:

"l don't believe I have. any capacity ^for re-employment at this stage

þecause of my physical restrictions...,'e

12 The fourth affidavit on 30 Septembe r 2013 mentions seeing a psychologist,

Ms McDonald, on a couple of occasions some months ago.10 lt also states

that he gets depressed at times because of the pain and inability to work:"However the main remains with my back and neck".11

13 An Amended Particulars of lnjury dated 12 septembe r 2013 has been

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tendered that adds;

"(c) Chronic pain disorder

(d) "12 to theparagraph (a) spinal aggravation.

The affidavit material only fleetingly addresses the paragraph (c) condition

and its consequences now relied on as the princípal limb of this application.l3

Nevertheless, all the evidence must be considered and not just the affidavits.

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15 The plaintiff was the only witness to give oral evidence. I found him to be an

unimpressive and unreliable witness. At times, he answered in a way that

indicated a willingness to say what he thought would conveniently deflect

attention away from questions that were a little confronting. Such answers

often proved to be just incorrect. Examples of inadequate answers and

explanations included the VOCAT claim and intervention order proceedings,

psychological counselling,la his inability to horse ride and when and why that

inability occurredls and when dealing with his 2001 affidavit.lG

16 The case demonstrated the advantage of observing and hearing oral

evidence. The plaintiff's demeanour and prevarication at times were not

indicative of a witness always doing his best to be accurate. Other examples

of unsatisfactory answers concerned his medical treatment prior to December

2004,17 an email about having his own business and having 22 years

experience in landscaping,ls as well as the information in an Employment

Applicationle and work he had pefformed after the 2OO4 injury.2o

17 I do not accept the plaintiff's account of his level of symptoms and the level of

pain he says he has suffered after the 2004 injury as being accurate or

reliable. The accounts to a number of doctors involve serious omissions in

regard to history that I would regard as too vital and recent to not impact on

credit. There is no record given by the plaintiff of pre existing psychiatric

history in any detail in his affidavits but when required to see psychiatrists

engaged for the purposes of his paragraph (c) claim, added by way of the late

Amended particulars of lnjury, he records at times a different picture to

different doctors

T 98-102T g1-g3, pcB 26, 33, 37 and 2001 workcover claim affidavit and aspects of its contents relating to

the 1992 injurY, DCB 73, T 66-70

DCB 73-75, T 66-70T 51-52T85DCB 80-85, T 83-86PCB 30, T 33-40

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One history is of a man so seriously unwell in the past that he was suicidal,

required ECT and was hospitalised. To Dr T Entwisle, psychiatrist, in

July 2013, he gave such an account.2l rn December 2012, to Dr M Epstein,

psychiatrist, he related how he was admitted to hospital as a voluntary

inpatient and tried to hang himself. Again this is a picture of very serious

psychiatric illness.22 Yet to Dr p Kornan, psychiatrist, in April 2o1o all he

recorded was:

"He indicated in 1990 a depression reaction at that time. since this, hehad been treated by his local doctor."23

His affidavit evidence really only states "l did suffer some depression prior to

being injured in December 2004" and really litfle else of consequence.2o

The accounts are hard to reconcile in terms of history. The true before picture

has to be established when in assessing the impact of the 2oo4 injury.

The differences in the evidence lead to the conclusion that the plaintiff did not

give anything like an accurate account in his affidavit evidence nor in the

witness box. Dr Entwisle and Dr Epstein could hardly have been mistaken in

the detaíl they had taken about his past psychiatric history. I accept that this

would have been relayed to them by the plaintiff but are really not mentioned

at all in his affidavit material nor in examination-in-chief.

This is a parcgraph (c) application that on one view involves to some extent

an issue of aggravation of pre-existing depressive psychiatric probtems.2s

There may have been a gap of some years between these periods of

obviously significant psychiatric troubles and the subject accident in 2004.

Nevertheless, the plaintiff has the onus of establishíng the facts on the

balance of probabilities ín regard to the before and after picture.

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Another matter of real concern in terms of assessing the reliability of the

plaintiffs evidence, is to compare his oral evidence with the virtual absence in

his four affidavits of what employment he has been able to obtain since the

2OO4 injury. He records in his first affidavit that he tried to work from time to

time and there was a nursery business close to his home where he

sometimes got a few days work. He records there were times when he had to

stop work and go home and really that is all that is said.26 In the second

affidavit the plaintiff said that he last worked in December 2009, when he did

some casual work at a nursery, but he does not describe where that was, for

how long he worked, nor the circumstances of his leaving that employment.2T

His third and fourth affidavits do not elaborate on this topic.

At the commencement of this case the defendant was given leave to file some

affidavit material from an employer, Mr Grasby, for whom the plaintiff worked

in 200g.28 ln oral evidence he recounted working for Tillage in June to

December 2008.2e He then worked for Saltech, starting probably in about

March or April 2OOg and was there for six months.3o After that he worked for a

further landscape firm, lmpala, for about two months. Following that, he

commenced working for Mr Grasby with his firm, Super Gardens. The hours

he worked indicate virtually uninterrupted employment, save for some wet

days when outdoor work was not possible over 46 working days.31

The fact that so litfle was mentioned about these employments in the plaintiffs

four affidavits, nor in any meaningful way to some doctors assessing his

capacity for work, does not reflect well on the plaintiffs credit. lt adds to the

comments I have already made about the reasons why I do not accept the

plaintiff as a reliable witness about his histories, injuries or their

consequences.

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26 Nevertheless, while credit and the assessment of the plaintiff are important in

these applications, the medical evidence itself needs to be examined.

27 At the heart of this application is an evaluation of the plaintiff's pain. I have

already made a comment about him as a witness. Aspects to examine by

way of evidence about pain have been said to comprise what the plaintiff says

about pain both in court and to doctors, what the plaintiff does about pain with

respect to treatment, what the doctors say about the extent and intensity of his

pain as well as what the objective evidence says about the disabling effect of

pain.32

28 ln view of his credit, it is particularly important to look at the evidence about

what the plaintiff has done or not done in relation to dealing with his pain. lt is

relevant that with respect to both paragraph (a) and (c) applications, there is

hardly any evidence before the court from any treating specialist.

29 There is one attendance on a surgeon, Mr C Xenos, in 2006 for the spinal

pain.33 with respect to the paragraph (c) application, the medical reports

indicate he was referred to a psychiatrist, Dr Adey, for treatment but no

material from that specialist has been tendered. There is no evidence

whether the plaintiff ever went to see Dr Adey. ln all the material presented to

the court, there is nothing from any treating psychiatrist with respect to the

paragraph (c) condition.3a His affidavit records seeing a Ms McDonald,

psychologist, but there is no evidence from her.35

30 The plaintiff's treatment thus, for both the spinal injury and the psychiatric

condition, has basícally consisted of a succession of general practitioners and

little else in terms of the evidence tendered.

31 The first was a Dr Li, who saw the plaintiff on g December 2004.36 He

Aburrow v Network Personnel & worksafe victoria 12013!vscA 46, paragraph I 1

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diagnosed that the plaintiff had aggravated his previous neck and thoracic

spine injury suffered in 1gg2. He gave a WorkCover certificate and felt that he

should be able to return to modified duties with a lifting limit and avoiding

frequent bending. He has not seen him, it seems, other than on two

occasions and his report does not assist in dealing with the issues in these

applications nine years later in 2013'

Treatment was then taken over by Dr Peter Janovic, a general practitioner at

another practice, who saw him on 23 December 2004. This doctor reports

under the heading of the Brice Avenue Medical Centre3T but it is clear from

the clinical notes that he saw the plaintiff also under the name of the

Mooroolbark Medical Centre.3t Dr Janovic reported that the plaintiff had a

previous injury to his thoracic and cervical spine but that he had been

functioning at a reasonable level with no major impact on his day to day

activities until the 2OO4 injury. He thought that the plaintiff was not capable of

any employment, when reporting in February 2005, butwas "...hopeful of him

having a graduated return to work, depending on his response".3e He does

not give any opinion about a permanent incapacity when reporting some two

months after the 2004 injury.

The notes from the clinic are illustrative of the plaintiffs condition in the two

years or so prior to the subject accident. They show the inadequacy of the

affidavit evidence. They indicate that he was described as having chronic

back pain on 23 May 2003.a0 He was attending the general practitioner for

back pain in May 2003, October 2003, December 2003 and had further

attendances into 2004.

The notes record that in 2003 the plaintiff was referred to a Dr Graeme

Symington for treatment.al lt is not clear whether or not the plaintiff ever saw

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the doctor. There is also reference to him having seen an orthopaedic

surgeon last year in a note on 10 December 2003.42 lt is unclear who that

orthopaedic surgeon was and whether it was for medico-legal purposes or for

treatment. There is a note about the plaintiff taking 8 Panadol a day for years

and having seen numerous doctors and had numerous tests.a3 Who these

doctors are is not known. There is further reference of him being encouraged

to go and see Dr Symington.aa A further notation appears that on 11 February

2004 that the plaintiff was seeing a neurologist and it would appear that that

was Dr Katrina Reardon.as There are also various medical prescriptions in

relation to this condition.

35 The prescription list that appears in those notes indicates more medication

was required from this practice following the 2oo4 injury than príor. The

general tenor of the treatment, in comparing the before and after periods, is

that it is much more active in terms of referrals and investigations before the

December 2004 injury. wíth respect to treatment, I conclude that the

aggravation that occurred in the 2004 ínjury did not lead to any active

treatment from Dr Janovic that would reflect the aggravation as being very

serious. I have already commented that there has been only one referral to a

specialist for the 2004 injury to the present tíme. One qualifícation on this is

that there are some references to a Caulfíeld Pain Clinic in some later reports.

No evidence from there was tendered.

36 As there has been no further report from Dr Janovic later than February 2OOS,

he is of no assistance in determining now, almost nine years later, what

permanent consequences if any flow from the 2004 aggravation. His notes

though do make the before picture clearer.

37 Dr Katrina Reardon, consultant neurologist, who was mentioned in those

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notes has provided three letters. The first is on 11 February 2004. lt recorded

that the plaintiff had a history of back injury in 1992 and she described it as

chronic back pain with problems in the neck and thoracic spine. He had tried

a number of medications and was suffering from a lot of cervicogenic

headache. He had lost weight over the last six to seven years, had a lot of

sleep disturbance, had been seen by an orthopaedic surgeon and had a

number of radiological investigations. The medications she described in

February 2OO4 were Panadeine Forte (eight per day) and Vioxx (25 milligrams

daily).a6 She adds to the before picture of very significant pain indeed'

Her opinion was that the plaintiff presented with chronic back pain related to

his thoracic and cervical spine as well as cervicogenic headaches after the

1gg2 injury. She felt he needed further investigation, a rheumatological

opinion and an MRI of his spine. She made arrangements to that effect.aT

Her next letter to the general practitioner is on 31 May 2004. lt described the

MRI showing an old T12 fracture with a mild central disc protrusion at that

level contacting the thecal sac as well as degenerative changes at the lumbar

spine and cervical spine levels. She thought it likely that he had suffered a

very small wedge fracture atT12. She reported he still had quite a lot of back

pain and noted spasm in his back. She thought pain management was

reasonably well controlled, but he required regular analgesia in the form of

Panadol (six to eight tablets a day), as well as some medication for the

headaches (by way of two tablets at night)'a8

The final letter from her was on I September 2004. The plaintiff had returned

for review on that day and she noted he had continuing problems with

headaches, which occurred nearly every day and would start at the back of

his neck. she noted he took I to 10 Panadol a day and she cautioned him

about such a level of ingestion. She thought a different medication may help

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him with respect to muscle spasm and his headaches.ae

It is clear from this treating doctor, who saw the plaintiff in Febru ary 2004, May

2004 and in September 2004, that the plaintiff was still having significant

problems two months prior to the 2oo4 injury. Given the length of time

between that 1992 injury and the need for ongoing specialist treatment in

2003 and 2004, I find the plaíntiff had probably suffered very significant

symptoms over that 12 or so years. Treatment was still very active.

Some other material which I have, in order to evaluate the plaintiff's medical

condition prior to the 2004 injury, is from the general practitioner, Dr Robert

Beovich. He reported to TAC Law on 13 August 2003.50 He referred the

plaintiff to a Dr David Vivian, musculoskeletal pain consultant, who reported

on 10 August 2001.51

Dr Beovich reported that he first saw the plaintiff on 13 January 2001. He

recorded a full history of upper back and neck pains at that time. A diagnosis

of muscular sprain was made and a referral to Dr Vivian was noted on 14 April

2001 for ongoing thoracic aches. Medication was prescribed by way of

Valium for back muscle spasm and Tramal for back pain the next month. ln

September 2001 the plaintiff was referred to St Vincent's Hospital pain

Management Unit atthe behest of DrVivian. ln February 2002 a CT scan of

the thoracic spine was required. A referral then took place to an orthopaedic

surgeon for further assessment and there was a notation that this was by

Mr Michael Fogarty. There is no material tendered from Mr Michael Fogarty

and the plaintiff could not recatl whether he had seen Mr Fogarty. I accept

from this letter of Dr Beovich that the plaintiff had probably been seen by

Mr Fogarty. The plaintiff last saw Dr Beovich on 23 April 2002 when he was

still complaining of thoracic muscle aches.


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It needs to be noted that this is some 1O years or so after the 1992 injury to

his spine. He was still being treated. Treatment before the 2004 injury was

far more extensive and active than after it.

Dr David Vivian reported on 10 August 2001 that he saw the plaintiff in July

that year. He had had thoracic, neck, head and back pain since 1992' The

pain was slowly progressive. lt had affected his ability to continue work as a

screen printer and he had worked after that as a taxi driver, but could not work

full time. He noted that the plaintiff reported his social and recreational

system had gradually deteriorated. He was depressed and he had separated

from his wife, due to these symptoms as much as anything. He described that

he could not sleep at all when his headaches were bad and that he had lost

weight as a result of his appetite having diminished'52

At around this time in June 2001, the Work Cover affidavit sworn by the

plaintiff deals with a lot of these complaints related to the 1992 injury'53

The opinion of Dr Vivian was that in 1992 when the plaintiff had hit his thoracic

spine this resulted in thoracic and neck pain. lt was associated with severe

disability. He thought the current situation (in 2001) directly related to that

1gg2 incident and may well have produced a disc injury orfacet joint injury'

He stated:

,,He has developed a substantial pain problem since this time. This pain

problem could be described as being a fibromyalgia-like condition,

associated with widespread pain, tenderness, sleep disturbance, -a.nd

fatigue. H tioned. This may be as a result of his

paiñ, with ssion, but it also may reflect some

underlYing

He suggested blood tests and x-rays. He thought that the treatment option

included a pain management approach and suggested st Vincent's Hospital.

However, he felt it was unlikely that any one specific treatment would make

much difference. The condition was stabilised. The 1992 injury had resulted

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ln a permanent and stable loss of function of the neck and back in the region

of 20 per cent. The pain condition was compounded by the development of

depression and fibromyalgia.ss

I accept that in 2001, Dr Vivian was describing a pain problem that had

stabilised and was permanent, having caused permanent lost function. He

was doubtful about the efficacy of any treatment. I accept the plaintiff at that

stage had a permanent spinal condition that limited his work and daily life.

He re-examined the plaintiff on 17 April 2T12for medico-legal purposes rather

than on a treatment basis. He described that the generalised back pain the

plaintiff had when he saw him back in 2OO1 had been progressive and that:

"By the time I saw him his life had fallen apart".56 lt was a benign chronic pain

syndrome associated with an initial injury but by that tíme was so widespread

he needed a pain management program.

He took a history of the plaintiff's 2OO4 injury and commented on that ín terms

that are not easy to understand. He stated that on 1 December 2004 the

plaintiff felt sharp interscapular pain and had had persistent thoracic pain ever

since in association with other pain. He thought it was possible that he had

sustained an injury to the musculoskeletal structure, such as a disc, on that

day but it was impossible to prove. The MRI showed nothing particularly

relevant other than genetic change common in the asymptomatíc population.

He diagnosed:

"lt might also be considered that he sustained a reversible soft tissuestrain on that occasion, and that the chronic pain that has remained inthis region is part of his overall chronic pain syndrome which could alsobe diagnosed as fibromyalgia."sT

The terminology used here is very similar to what Dr Vivian was describing

about the stable and substantial pain problem 11 years earlier in 2001.58 ln


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2001 it was permanent. He thought that the plaintiff had a profound incapacity

at the moment with widespread pain, including headaches, and that it was

unlikely that he could work in any employment other than a simple job, pad

time. He thought this was likely to be a long term incapacity and that his

complaints would affect, to a significant extent, his ability to function in social,

domestic and recreational activities. The only treatment that might help would

be a pain management program, and the prognosis was that he was likely to

have a persistent disabilitY.5s

When reading this report and comparing it with his 2001 report, I do not

accept that there has been any 2004 aggravation that on a before and after

analysis indicates any significant change in either symptomatology or the

impairment of function and consequences flowing therefrom' while I accept

that the plaintiff has suffered an aggravation in 2004, I do not accept that that

aggravation has resulted in any consequences resulting from or materially

contributed to by that aggravation per se. These reports read as a problem

that was nine years old when Dr Vivian first saw him in 2001 and which

continued in more or less the same way after 1 December 2004'

The only other doctor who saw the plaintiff before the 2004 injury was a Mr

Gary Grossbard, orthopaedic surgeon, who first saw the plaintiff in April 1995

at the request of a general practitioner, Dr F Wilk'60

He then saw him again for medico-legal purposes in 2011 and again in March

2013. He accepted there had been an aggravation of the pre-existing spinal

changes in December 2oo4 and that there may well have been psychological

issues after so many years of inability to function normally.ol

However, he thought that the aggravation of December 2004 was an

exacerbating factor in "... the sequence of multiple exacerbations of pain, both

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before and after December 2004".62 ln his 2013 report he specifically alluded

to a chronic pain syndrome that was associated with this man's "twenty years

of injury". He does not point to any consequences of the 2004 injury as a

separate injury. He thought the psychological component to this man,s

disability was significant.63

He does not disentangle the physical issues from the psychological. He really

combines the two when he gives an opinion that the plaintiff was unlikely to

return to work. Physical work was out of the question, and even lighter work

may be difficult because of the psychological issues which he felt were better

assessed by practitioners qualified in that area. He felt the plaintiff needed

ongoing treatment with pain management and psychiatrists.

I read his opinion in terms of incapacity as being a combínation of both the (a)

and (c) conditions without any real disentanglement. He said:

"whilst this man does have a physical capacity, it is not reasonable to

31il?:ïrTlTl,,f;i!.,n" psycholosical issues w-nicn tosether create the

Accordingly, Mr Grossbard really just lumps the whole picture together by way

of clinical situation and the consequences that flow from the total

symptomatology, both organic and psychiatric.

The next general practitioner in líne was Dr G watt in pakenham who

provided five letters or reports. Dr Watt started seeing the plaintiff in July

2005 and he recorded a history of the 1992 injury and provided his first

detailed report on 23 January 2006.65 There are some earlier documents66

and they include an assessment that had taken place, apparenfly at the

Caulfield Pain Clinic. There was no detail given about this assessment and no

material from that clinic was tendered.

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ln DrWatt,s report, he does not even mention the 1 December 2004 accident'

He noted the involvement of a neurosurgeon, Mr Chris Xenos, the caulfield

Pain Management Clinic as well as a referral to a psychiatrist, Dr Adey' for

management of depression. He thought that the plaintiff had no capacity for

regular work due to his constant back pain, frequent headaches and

depression.oT He felt that the Caulfield Pain Management Clinic and an

improvement in his psychological health might improve his prospects of

returning to work.68

ln his further reports of December 20066n, M"y 201070 and in a consultation

note of 17 August 2009,71 there is still no mention of the 1 December 2004

accident. Accordingly, Dr Watt gives no support to the plaintiff's application

under paragraph (a) that the aggravation in 2004 has led to very considerable

consequences. lndeed, everything Dr Watt says would appear to relate to the

1gg2 problem, although it is interesting to note that the clinical note on 17

August 2009 records that the plaintiff strained his lower back when swinging

an axe and required a week off work'72

lt would seem also that between September 2006 and May 2010, the plaintiff

was only seen once with respect to his back condition.T3 This is consistent

with my finding that while there was an aggravation in December 2004' it was

not of any great moment. lt caused some symptoms to flare up consistent

with some increase in medication but resulted in minimal treatment compared

to the years prior to the 2004 injury'

Mr C Xenos, consultant neurosurgeon, wrote back to Dr Watt on 31 January

2006.74 He noted chronic thoracic pain and he took a history of the December

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2004 incident and essentially chronic pain focused in the thoracic spine and

neck area and to a lesser extent in the back. He said it was important to note

there was no sciatica and there was no ".,.true objective spinal cord

compression". He thought that the plaintiff had features of "...chronic illness

behaviour and chronic pain syndrome. He rooked depressed".7'

It has not been established whether Mr Xenos' favoured consideration of the

rehabilitation and pain management program ever took place. This isconsistent with the organic aggravation injury not amounting to one that has

been productíve of serious consequences.

The next general practitioner was Dr Modeley, who first saw the plaintiff at the

Casey Medical Centre on 10 December 2010.76 He took a history of the 1gg2

original injury with the aggravation in 2OO4 noted. He gave an opinion about a

chroníc non-specific back pain related to a crush fracture of T12 in 1gg2 and a

non-specific aggravation in 2004. He stated:

"Taking this man's injuries at face value, he likely has a permanentincapacity for duties that invorve bending, twisting ahd heavy lifting. Heis therefore unfit for pre-injury duties for the

-foreseeable futuie. Iconsider the above incapacity to be permanent in all likelihood.Although I stress that I only have his description of events, with noimaging, specialist opinion or substantiation of the history proviáed '77

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He also noted that the injuries were likely to restrict social, domestic and

recreational activities. Future treatment was likely to be the continued use of

medication and it would be desirable to have the involvement of pain

management and rehabilitation specialists. He thought the prognosis was one

for continuing pain and disability with litfle prospect of improvement.

Dr Modeley's opinion does not distinguish sufficienfly between the 1gg2

conditíon and the 2004 aggravation in assessíng consequences. He further

reported in January 2012. By this time he thought the diagnosis was one of a


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chronic pain syndrome.Ts He thought there was a permanent incapacity for

work and again gave a similar prognosis with restrictions on work duties, but

his further report, similarly, does not in any way assist in analysing whether

the non-specific aggravation commencing in 2004 was causative of any

serious consequences as a separate injury. on reading his reports, the better

view would seem to be that he just bundles together 1992 and 2004 and gives

an overall opinion about the plaintiffs condition without the assistance of the

radiology and other materialthat he mentioned had not been provided to him'

The next report in Octobe r 2012 does not really take the matter any further.

The chronic pain syndrome diagnosis was repeated but again, the contribution

the 2004 injury played in relation to that is not made out. The 1992 and 2004

incidents are still lumped together as it were. The overall opinion about

consequences and incapacity make it impossible to draw conclusions about

the contribution from the 2004 injury, independent of the 1992 trauma'

At this practice, Dr Modeley was followed by a Dr W Zhao who took over the

plaintiff's treatment probably early in 2013.7e Dr Zhao had his predecessor's

medical records and he personally had seen the plaintiff on some eight

occasions when he reported on 7 October 2013. He agreed with

Dr Modeley's medical opinions that there was a pain syndrome of his thoracic

spine that would preclude him from employment. lt would also impact by way

of precluding him in relation to some social, domestic and recreational

activities. These activities are not spelt out specifically.s0

He also made a comment that the plaintiff will continue to need the support of

his general practitioner and psychologist. He was referring to Ms McDonald

but there is no material tendered from her'

Dr Zhao,s opinion suffers from the same defect in terms of advancing this

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application, in that he does not in any way distinguish between the 1g92 injury

and the 2004 aggravation. He concludes his report with the comment:

"l am hopeful that he can return to appropriate employment in duecourse. However, Mr Raymond's condition remains essentiallvunchanged, and he is likely to have limited career prospects."sr

I do not read this last comment as one making out permanent consequences

in relation to incapacity for suitable employment. Rather it seems to express

some optimism that the plaintiff would return to employment with some

limitations in the future but certainly not permanent incapacity for suitable

employment.

Before dealing with the medico-legal opinions it is worth noting that there have

been no less than five treating practitioners who the plaintiff has attended over

the nine years since the 2004 aggravation, and apart from the reference

mentioned to the psychiatrist Dr Adey, which may or may not have ever taken

place, there is only the letter from Mr Xenos by way of specialist treating

evidence regarding either the paragraph (a) or paragraph (c) injuries. A

psychologist Ms McDonald is mentíoned but there is no opinion from her.

A Dr Teh at the Caulfield Pain Management Clinic is described as having

been responsible for the recommendation to refer the plaintiff to Mr Xenos.s2

There has been no material provided by the plaintiff from Dr Teh or from the

Caulfield Pain Management Clinic. Thus no material indicates the extent, if

any, of treatment at Caulfield.

For the length of time involved sínce 2004, there is a paucity of treatment in

regard to the spinal condition and the psychiatric condition. This is consistent

with my finding that neither injury meets the test of "seríous', injury. There is

no evidence of signifícant continuous narcotic medícation that is often

reflective of a level of severe pain. Apart from an increase in medication in

the immediate months following December 2004 the evidence about


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medication over the course of nine years does not point to extensive reliance

on it.

The active referrals for spinal injury to different specialists in the eighteen

months before 2Oo4 are also indicative of a level of symptomatology that is a

stark contrast with the last nine years'

There is no lay evidence in this application to corroborate any of the

complaints of pain and disability the plaintiff makes. This of course is not in

any way compulsory in this jurisdiction but given the amount of time involved

since Decembe r 2OO4 and the unreliability of the plaintiff's evidence, the fact

remains that there is no independent lay corroboration of consequences.

Looking at the treating evidence overall, I find the plaintiff does not prove that

the paragraph (a) aggravation as a separate injury resulted in or materially

contributed to any consequences that could be fairly described as at least

very considerable.

with respect to what disentanglement is required in order to assess the

organic contribution component from the psychological or psychiatric' that

same body of treaters' evidence does not sufficiently disentangle it to make it

clear. Recently this task has been described as a "". near impossibility of

separating out psychological from organic causes of pain and disability"'o3

The paragraph (c) injury has also not been proved to be "serious" on the

treaters' material

The first of the medico-legal witnesses who had not had the benefit of seeing

the plaintiff before 2OO4 was Mr Thomas Kossmann, orthopaedic surgeon'

who saw the plaintilf in 2011 and then twice in 2012' The history he takes is

defective in a number of respects. He records that the plaintiff did some

casual work since the 2004 accident.s4 The history he has recorded is

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deficient in terms of what work the plaintiff has been able to do after

December 2004.85 More importantly perhaps, in relation to the history he has

of the plaintiff's 1992 injury and the treatment he required for that, it is not

consistent with what the medical notes reveal about investigations and

specialist referrals in the eighteen months or so prior to Decembe r 2004.86

Mr Kossmann thought that the plaintiff had developed a severe pain syndrome

following an injury to his spine in December 2004 and he thought he coutd

detect a fibromyalgia-like syndrome.sT He was asked a series of questions

which seemed to attempt a disentanglement but those questions are

somewhat equivocal in the way they are framed. Nevertheless, he thought

that the plaintiff did not have a capacity to perform suítable employment,

excluding consideration of any psychological or psychiatric condition.ss

When he reviewed the plaintiff in 2012 he described the pain syndrome as

now severese and repeated some pessimism about the prognosis. He also

indicated "'.' without further counsetling and additional therapy, he will not

cope with the pain issues in the long term. Mr Raymond also has to undergo

psychiatric counselling."eo Again the real deficiency in the history he has of

the 1992 injury is apparent and excludes any mention of the active treatment

the notes indicate the plaintiff was having through 2oo3 and 2004 up toDecember.el Nevertheless, he did think that the Decembe r 2004 injury may

have been an aggravation of a pre-existing condition.

ln the final report from Mr Kossmann he seems to change his opínion

somewhat. This may be due to the MRI of 6 March 2012. However, not

hearing from the doctor this is not clear.e2 Whatever the reason, while he

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thought the plaintiff was still suffering from the pain syndrome, he said that

while the incapacity for pre-injury duties was permanent:

positive that Mr Raymond may be able to return in the working process since

he has stopped drinking massive amounts of alcohol". A little further on he

stated "ln my opinion, Mr Raymond does have now the capacity to perform

suitable employment."e3 He seemed to take into account the concepts

involved in the definition of suitable employment in reaching this opinion.ea He

repeated again in his final comments that the prognosis has improved.

Given that he considered the plaintiff now has the capacity to perform suitable

employment, his opinion does not support a view that the paragraph (c)

condition, which is clearly where he saw causation, can be described as

severe. While he very briefly alluded to a preclusion in relation to his social,

domestic and recreational activities, he did not elaborate on that except to say

that the plaintiff was a very sporty man and since the accident has not done

any sport at all.es ln view of what I have concluded about the plaintiff as a

witness, I am not satisfíed that there was any particular sport that he is now

precluded from that he was involved in actively before 2004. on the question

of disentanglement, it would appear that the clear view of this surgeon was

that the impairment of function that leads to consequences, whatever they

may be, is the result of the paragraph (c) injury'

Mr Kenneth Brearley saw the plaintill in 2011 and 2012' He had a much more

accurate history of the work that the plaintiff had been able to perform after

December 2004 as well as more information in regard to the 1992 injury. lt is

nothing like a full history however of the treatment that was still occurring,

even in 2OOg and earlier in 2004.s6 He also referred to an assessment by

Dr Jason The at the caulfield Pain Management clinic and that is a doctor

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from whom no material has been provided, nor was he even mentioned in oral

evidence.

Mr Brearley considered that there was an aggravation of pre-existing spinal

pathology that had occurred in December 2oo4.s7 He then had similar

questions addressed in an attempt to disentangle some of the issues that are

raised in relation to the paragraphs (a) and (c) enquiry. lt is fairly clear that he

considered that it was a physical injury still causing the plaintiff to be unable to

perform his pre-injury duties.es He thought there was a limited capacity for

part time work, of three hours a day at four days a week with limitations and

he did not think there was any líkelihood of improvement.ee

When he saw the plaintiff in 2012 he considered that there had been a chronic

pain syndrome that had developed as a result of the stress and anxiety. This

had not been mentioned in his earlier report but, nevertheless, he seemed in

answer to the same series of questions that were addressed to him to prefer

the view that it was a physical injury that was preventing the plaintiff from

performing his pre-injury duties. He thought he still had a capacity for some

lighter work but he does not in 2012 put any limitation by way of part time or

designated hours. He did refer however to his previous report, so without

hearing from the doctor it may or may not be that he was adopting the hours

that he had stated previously. He thought the prognosis was poor and the

incapacíty was permanent.

His overall view seemed to be that the incapacity that the plaintiff suffers from

had physical origins which seems directly contrary to what Mr Kossmann had

expressed in 2011 and 2012.

The plaintiff was assessed in January 2012 by Dr Robyn Horsley,

occupational physician, who again agreed that a disability that he had suffered


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since 1gg2 had been aggravated further in 2004. she thought that the plaintiff

had work restrictions on certain physical activities but it appears from reading

her report that she is really just combining the 1992 injury and the aggravation

in 2oo4with respect to these consequences. For example, she said:

"Mr Raymond presents with significant disability. He has been out of the

workforce now for a two year period. His disability dates back to 1992,

although aggravated in 2004."100

while she considered that he had a capacity for part time work in suitable

duties, to the extent of 15 to 20 hours, I read her opinion as really not

assisting in the task of trying to assess just what the 2004 consequences are,

absent the 1gg2 injury. ln other words, there is no delineation of the

impairment consequences of each injury which is required in an aggravation

case such as this.101 The aggregation is impermissible.l02

Associate Professor o white, neurologist, saw the plaintiff in 2012 and he

again takes an inadequate history of the treatment of the 1992 injury' He has

litfle of the detail that the clinical notes reveal about 2003 and 2004 prior to

December.l03 He took a history of significant problems with alcohol and drug

addiction, but in the end his opinion was that the plaintiff had developed a

chronic pain disorder. He thought there was no evidence of orthopaedic

disruption that would explain the severity of his pain, nor of neurological

disruption.loa He described it as a significant chronic pain disorder of complex

aetiology with a significant psychological component' He used some terms

that without hearing from him are hard to understand when he said about the

chronic pain disorder:

,,lt may well have a significant psychological component but also may be

secondary to a disorãered centrál nociðeptive network, such that he has

an abnormal ãpprãciation of pain. The complexity of his pain is such

that one ".nno[ãetermine

with any certaintywhat the main contributing

factors, but certainly it would appear that he has an abnormal response

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to the structural abnormalities evident on his radiorogical studies." r05

93 He thought that the injuries had contributed to the mechanical change and by

injuries he would appear to be referring to the two episodes of injury to his

spine, that being 1992 and 2004. He really seemed to combine them when he

dealt with consequences. He added also: "lt seems likely there has been a

contribution from his general working life, as well as his general physical life

outside work".106 He did not think the plaintiff would be employable in the

future but the cause of that condition seems to be one that is multi-factorial.

The report does not establish that the 2004 aggravation on its own was

causative of any serious consequences under (a) or (c).

94 Dr Peter Blombery, consultant physician, examined the plaintiff in November

2012' The history he took of the 1992 injury is deficient. lt díd not deat with

anything like the ongoing treatment stiil occurring in 2oog and 2004.107 He

thought that a lot of the plaintiff's pain in his back was caused by previously

asymptomatic degenerative changes and he felt that the plaintiff's injuries to

his spine were complicated by a pain syndrome.108 He speaks about injuries

plural as being work related and employment was a significant contributing

factor to the injuries and their ongoing complications. lt is pretty clear that he

was combining 1992 and 2004 in terms of their causative link to the pain

syndrome' This doctor is on his own in saying that the pain syndrome is an

organic disorder of pain nerve pathways. I do not accept this opinion. lt is not

fully explained how he came to a view that is not shared by any of the other

20 or so doctors involved in this application. Dr Blombery thought there were

limitations on the plaintíff's capacity to work, although he thought that he may

be able to perform some light duties which would initially start at about

12 hours a week.

95 This diagnosis is different from all other doctors in terms of whether the pain

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syndrome is organic or psychological. Also that syndrome seems to be a

result of the two injuries lumped together. I do not accept that this report

assists the plaintiff in establishing that the 2004 injury is serious under

paragraphs (a) or (c).

Dr Felix w¡lk, general practitioner reported on 13 June 2000. He saw the

plaintiff, firstly, in August 1994 with his history of back injuries some two and a

half years previously. He referred him to Mr Grossbard. The plaintiff returned

again in March 1995 with recurrence of symptoms' Specialist opinion was

again arranged and the plaintiff saw a specialist in April 1995' I assume that

was Mr Grossbard. A possible diagnosis of muscle Spasm secondary to

possible facet joint injury was noted and mobilisation was suggested, as well

as regular swimming.l oe

This general practitioner has not seen the plaintiff since 1995 so his opinion is

very dated. His report indicated that over a number of years following the

1gg2 injury, this man's condition was such that referrals to specialists were

being organised. The notes in 2003 and 2004 indicate that such referrals

were still ongoin g 12 or so years after that original injury and virtually up to the

December 2004 injury'

Mr P Rustomjee, surgeon, reported to a previous firm of solicitors acting on

behalf of the plaintiff in october 2000 regarding the 1992 injury'

He tòok a history that since 1992 the plaintiff had gradually increasing

stiffness and pain in his neck, together with migraine headaches and severe

pain in his mid-back. since 1992 he had been working at various firms and

was finding it extremely difficult to keep working at one firm for a long period

of time as he takes time off work due to his pain in the neck and back' He

complained to the surgeon of severe migrainous headaches on a daily basis

which interfered with his normal daily life.110 Mr Rustomjee thought the

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plaintiff was suffering from a chronic pain syndrome that he had developed in

his neck and back following the 1992 injury and he thought that the plaintiff

should not return to the type of work he had been doing in the past,11, He

assessed him with a permanent AMA impairment.

ln June 2001 he adds to that impairment with a further percentage figure that

is not relevant per se but it supports the ongoing permanent consequences of

the 1992 injury some nine years after it had occurred.

ln that regard, these reports add to the before 2OO4 picture that supports my

overall finding that the aggravation in 2OO4 has not led to any consequences

that could be described as serious by way of paragraph (a) or paragraph (c).

The chronic pain syndrome had clearly developed in this surgeon's view by

october 2000 following the physicar injury to the spine. lt was severety

limiting him. This is consistent with the need for ongoing treatment for 12 or

so years right up until the end of 2004.

A series of reports from Mr R simm, orthopaedic surgeon, commenced in

February 2005 and ended in October 2013. ln his first report he described the

2004 injury as a recurrence of a longstanding spinal condition and thought

that it was a relatively minor strain and that the current condition was because

of his longstanding and disabring spinal pain syndrome. He was somewhat

equivocal about 1gg2 or 2004 as to cause.112

ln subsequent reports Mr Simm speaks about clinical features of a disabling

spinal pain syndrome not being physically based.113 He thought that he was

unable to establish any definite diagnosis of the physical condition to explain

the chronic cervical, thoracic and rumbar symptomsl14 when he saw him in2012. He accepted an apparent incapacity for work but as to causation he

states:


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seems to relate to a chronic Painwork injury in 1992. I do not believe

his Pain sYndrome as a result of the

ln his final report last month he repeated that the plaintiff's present spinal pain

syndrome was really non-organic and that:

,, This man has had a fluctuating, relapsing spinal pain syndrome s.ince-

1gg2. fne conäit¡on t.y havJbeen exaóerbated by physical strain of

the back in the workplace in December 2004, but it is no longer

possible to identify and confirm the presence 91. "l[,Ehysical

factors

iit "ty

to be contribúting to his current clinical condition."' ''

Mr Simm's view was that the current consequences are related to a

paragraph (c) condition as I read it but that it was a condition caused by the

1gg2 injury with a possible, as opposed to probable, exacerbation in

December 2004.

Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff in April 2010

and took a very inadequate history in relation to the 1992 injury and

treatment.117 He noted that: "He has never made any claim for any back

injury until his current claim". This is clearly erroneous as is illustrated by the

affidavit sworn in 2OO1 following the 1gg2 injury'l18 Furthermore the

compensation claim forms illustrate that this history is completely wrong'11e

Nevertheless, Mr Dooley thought that 2004 had resulted in an aggravation of

pre-existíng thoracolumbar spinal problems and really just gave an AMA

impairment of 5 per cent in relation to that. The report does not assist in

terms of the issues for determination in this application.

Before dealing with the evidence of the specialist psychiatrists in this case' it

needs to be noted in this paragraph (c) application that there is no material

from any treating psychiatrist or psychologist. The first specialist is Dr S

stern, consultant psychiatrist, who saw the plaintiff in November 2005' He

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diagnosed the plaintiff as suffering from adjustment disorder with depressed

mood which was a reaction to his chronic back pain. He said in relation to

that back pain: "lf this pain is related to the work injury of 1 December 2oo4

then employment has been a materially and significantly contributing factor to

his psychiatric disor der" .12o

I take it by the equivocation apparent in that statement that he is not accepting

that 2004 is the cause of the chronic back pain in view of the history of the

1992 claim in which he noted the plaintiff had suffered recurrent mid-back pain

there.121 He noted also that the plaintiff lost several jobs because he took a

lot of time off following the 1992 claim and he noted that the plaintiff became

depressed after the back injury in 1gg2.122

His view about the paragraph (c) conditíon was that he was depressed in

1992 and this predisposed him to his current depressive disorder. I read this

as indicating that if the chronic back pain was relate d lo 2004, and he does

not seem to accept that as a matter of certaínty or even probability, then what

has occurred is really an aggravation of an adjustment disorder with

depressed mood in2004.

I do not read Dr Stern as supporting consequences flowing from the 2OO4

injury as amounting to severe when viewed independenfly of 1gg2. ln any

event, he stated that from a psychiatric aspect the plaintiff was fit for work

including his pre-injury duties. Thus in any event there are no consequences

that this psychiatrist supports that would amount to "serious" whatever their

origin.

Dr P Kornan, consultant psychiatríst, saw the plaintiff in April 2010. He noted

a depressive reaction in 1990 and there is no mention at all of an attempt at

suícide, ECT treatment or inpatient hospital admission. He noted further that


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the plaintiff gave a history that this depression was treated and he recovered

from it and there is nothing else to indicate the extent of the plaintiff's previous

chronic pain syndrome depression or any other psychiatric problems.123 tn

any event, Dr Kornan thought that the plaintiff suffered from a chronic pain

syndrome, as well as an adjustment disorder with mixed anxiety and

depressed mood.12a From a psychiatric viewpoint there was no limitation on

his daily activities of living and there was no limitation as a result of a

psychiatric state by itself on his capacity to work.125 His report does not point

to any consequences that would qualify as a serious injury under paragraph

(c).

Dr M Epstein, consultant psychiatrist, saw the plaintiff in December 2012 and

he was given a much fuller history of pre-existing problems. 126 His diagnosis

was again a chronic adjustment disorder with mixed anxiety and depressed

mood.127 He thought the plaintiff was unfit to return to this pre-injury duties on

account of his psychiatric state and this was likely to continue indefinitely' He

thought he was not fit for suitable employment but could do part time work and

this may well benefit his depressive state.128 He did not elaborate on what

hours or the extent of any capacity for part-time work. Again, without hearing

from the doctor, it is near guesswork as to whether he is speaking about a

capacity that would reach 60 per cent or other level. His opinion does not

discharge the onus on the plaintiff of proving consequences that can be

described as serious under the paragraph (c) definition.

He thought that with the passage of time it was unlikely that such treatment

would be of great benefit and that is hardly surprising given that it was over

eight years after the 2oo4 accident that Dr Epstein was seeing the plaintiff. I

infer from his comment about the'passage of time that specialist treatment

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may well have been of some benefit early on but it is not made clear from the

brief reference.

Dr Timothy Entwisle, consultant psychiatrist, saw the plaintiff in July 2013. He

took a history of very significant past treatment. He had been on heavy

medication and underwent psychotherapy.lzs He diagnosed an adjustment

disorder with anxious mood consistent with the other psychiatrists but also

found a major depressive illness.130 He noted the absence of any ongoing

treatment and he thought that the chronic back pain from the injury in

December 2004 was a contributing factor to his diagnosis which was a"recurrence" of his major depressive illness, secondary to chronic pain. He

stated: "He has an underlying pre-existing psychiatric condition in the form of

a major depressive illness".131 This again seems to raise the question of an

aggravation of a pre-existing psychiatric condition as the principal diagnosis.

He reported the pre-existing history of depression amongst other factörs, and

while the December 2004 is a contributing factor, he considered that the

plaintiff would be deemed to have a work capacity.

whatever the precise diagnoses arc and whether or not it truly is an

aggravation of such a problem in 2004 and/or a fresh injury by way of the

adjustment disorder, this psychiatrist does not in any event support any

consequences that would satisfy the test of serious.

Dealing with a very large body of medical material presented in this case, I

find that the plaintiff has not discharged the onus of províng very considerable

consequences flowing from the impairment as a result of the aggravation of

his spinal injury under paragraph (a). Further, I find that the plaintiff has not

disentangled sufficiently in order to discharge the onus wíth respect to the

paragraph (c) chronic paín disorder and adjustment disorder. Ultimately he

has not proved that he has suffered a permanent severe mental or


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behavioural disorder.

'|'17 In view of my eonclusions as to the plaintiffs credit and reliability and as to the

medical evidence, I am not persuaded that the vocational assessment

evidence of Mrs K Henderson takes the matter any further.

11s Accordingly, for the above reasons I dismiss the application. I will hear the

parties as to costs.

Raymond v AdvalAustralia PtY Ltd

vsca - workcover.vic.gov.au€¦ · consequences attributable to the physical injury satisfy the...

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