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
JUDGMENTRaymond v AdvalAustralia pty Ltd
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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
PCB 25-26PC\24,32, 36 & 40
2 JUDGMENTRaymond v AdvalAustralia PtY Ltd
VCC:StuAA/DC
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
JUDGMENTRaymond v AdvalAustralia PtY Ltd
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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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DCB 42bPCB 122DCB 32PCB 30DCB 42e
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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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PCB 30PCB 33DCB76-77T34T35Exhibit 1
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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
DCB27PCB 52PCB 41PCB 43
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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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I JUDGMENTRaymond v Adval Australia PtY LtdVCC:SfuAA/DC
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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
DCB 48DCB 48PCB 48PCB 48
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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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7ADCB 27PCB 56PCB 57
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
PCB 119PCB 119PCB 106PCB 139
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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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101
102
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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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PCB 160DCB 6-7DCB 14DCB 20
VCC SÁJAA/DC 27
104
105
106
107
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