J & K Clothing Pty. Limited v. Mahmoud [2004] NSWCA 207

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC12068/02 FILE NUMBER(S) : LOWER COURT Burke AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40624/03 CC 12068/02

HODGSON JA McCOLL JA CRIPPS AJA

Tuesday 22 June 2004 J & K CLOTHING PTY. LIMITED V. MAHMOUD Judgment 1 HODGSON JA: On 1 July 2003, Burke AJ in the Compensation Court of NSW made orders in proceedings brought by the respondent worker against his employer the appellant. Those orders included orders for lump sum compensation under s.66 of the Workers Compensation Act 1987 (the Act) based on 5% permanent impairment of the respondent's neck and 9% permanent impairment of the respondent's back, and also continuing weekly compensation on the basis of total incapacity. 2 The appellant appeals from the decision in so far as it relates to the weekly compensation.

CIRCUMSTANCES 3 On 7 August 2000, the respondent (then about 25 years age) was injured in a car accident which occurred on her way to work. She quickly developed symptoms in her back and neck, and she consulted her usual general practitioner on the same day. Since then, she has seen a number of medical practitioners, both for treatment and for the purpose of evidence in these proceedings. 4 Apart from two periods of three or four days in November 2002 and January 2003, the respondent has not returned to work. She was paid weekly compensation on the basis of total incapacity until 2 August 2001, but this payment was then stopped. 5 On 26 March 2002, the respondent made an application to the Compensation Court under the Act, seeking weekly payments from 2 August 2001 and continuing at a rate indicating a basis of total incapacity, and also lump sum payments under s.66 and s.67 of the Act. The nature of the injury was stated in the application to be "injury to neck, back, both upper limbs, both lower limbs"; and incapacity was stated to be "various periods of partial and total incapacity". 6 Medical reports were exchanged prior to the hearing, but it does not appear that the medical basis of the respondent's claim was otherwise further particularised. 7 At the hearing of the claim, the respondent did not rely on an allegation of psychological or psychiatric injury, a fact noted by the primary judge during addresses and in his judgment. The respondent gave evidence to the effect that she was so affected by pain and disability as to be unable to work. 8 Medical evidence was called for both sides. 9 The medical evidence for the respondent included the following: (a) Dr. Tadros (report dated 10 January 2002): On 14/08/02 we tried to return her back to work to do some selected duties. She worked for two and a half hours and then had to leave as her pain (both the neck and the back) deteriorated.

(b) Dr. Mahoney considered the respondent was unfit for work, and inter alia said the following: Cervical strain with nerve root irritation affecting the upper limbs, the dizziness and the occipital headaches as well as the pain radiating to the temples I would consider to be referred from the neck.

She also has symptoms referable to bilateral brachial plexus neuritis, bilateral ulna nerve neuritis, bilateral carpal tunnel syndrome, a thoracic back strain as well as a low lumbar back strain with nerve root irritation affecting the lower limbs.

(c) Dr. Bleasel's report contained the following statement: As a result of the injury of 7 August, 2000, Ms. Samaher Mahmoud has suffered a musculoligamentous and disc damage to the cervical spine and musculoligamentous and disc damage to the lumbar spine with probable nerve root irritation affecting the first sacral nerve root on the right.

These disabilities are the direct result of the accident described.

Her condition is not improving. I think she has achieved maximum medical improvement. She is quite unfit to return to her pre-accident work, in fact I do not believe she has any hope of finding employment. I cannot imagine any work that would suit her. She is, in fact, not capable of attending fully to her activities of daily living.

(d) Dr. Giblin's report included the following: In my view, this lady is fit for her pre-injury job, but would be permanently incapacitated from doing prolonged and uninterrupted heavy repetitive bending, lifting and twisting.

The predominant restrictions would be to avoid prolonged and interrupted periods of sitting and standing and to avoid heavy bending, lifting and twisting, and to avoid lifting loads of more than about 10 kilos off the floor. 10 The medical evidence for the appellant included the following. (a) Dr. Burke's report, containing the following: I regard this woman as being physically fit for light manual tasks carried out while seated, standing, walking short distances or driving a light vehicle.

In view of her lumbo sacral discal prolapse, she is unfit for work involving repeated bending or squatting, the lifting of weights of more than 7kg or other activities likely to strain or aggravate her vulnerable back.

(b) Dr. Potter's report, containing the following: This patient suffers with total body pain. The only part of the body not sore is the stomach. It is important to get this key piece of information merely from asking the patient, of course, to define all her symptoms.

Once that is understood, it is obvious that there is no possible physical sickness or injury in this lady to explain her symptoms on the basis of injury. Unfortunately her pathology today is also contaminated by gross abnormal illness behaviour. The weakness and sensory loss is the pattern of the hysteric.

Dr. Potter annexed to his report a three page document entitled "Abnormal Illness Behaviour Commentary", which did not assist in making it clear whether Dr. Potter was asserting that the complaints were or were not genuine. 11 There was no evidence from any psychiatrist or psychologist. Dr. Potter was a rheumatologist. 12 No explicit submission was made that the respondent suffered from any psychiatric or psychological condition as a result of the injury. Nor was there any explicit withdrawal of the claim for weekly payments on the basis of total incapacity. However, in the course of submissions, there were relevantly the following exchanges between the primary judge and Mr. Porthouse for the respondent. MR PORTERHOUSE (sic) Firstly with respect to submissions about exaggeration is it only really Dr Herlihy who talks at any length about that. Even Dr Potter in his analysis of a hysteric-type reaction, his material that he annexes about conversion disorders and chronic pain and abnormal illness behaviour, does not actually say anywhere in his report that she is exaggerating or malingering. He says her presentation is not explained by the organic nature of her injuries, but he does not say that she is lying about her symptoms or that they are feigned and he does not actually say in his report that in his opinion she is exaggerating. He says that he got a hysteric reaction and that comes from psychosomatic and behaviourally she is, but he does not say that this applicant is - HIS HONOUR I do not know that that is going to do you much good. I do not think there is any suggestion of a psychiatric problem or anything that in the application for determination. MR PORTERHOUSE I do not put it on that basis but I put it in terms of the presentation of the plaintiff as being genuine in her reporting of pain and in terms of her disabilities. We have not seen - HIS HONOUR Most people tell it true. MR PORTERHOUSE - we have not seen any film, there was not really a lot of cross-examination directed to specifically contradicting the applicant about the nature and extent of what she said her problems were. So, in my submission, there really is not very much by way of evidence of exaggeration or certainly nothing that goes to show malingering or that the applicant is feigning any of these symptoms. …

HIS HONOUR She has some support for a partial incapacity, there is no question about that. I do not think it goes as far as saying she cannot do two days at 3 hours in a sandwich shop. MR PORTERHOUSE My submission is that she has tried to do that work and she says she was unable to continue doing it. She gets some support from Dr Bleasel about the nature of her incapacity for employment. We have also got to consider what work would be available for her out in the open labour market. I would certainly submit that she is not fit to continue working as a machinist. Office work is probably out of her field because of her lack of English. …

MR PORTERHOUSE We would say that the ability to earn should be calculated by looking at trying to work out how many hours she could work on a daily basis, stating the obvious. We would say that you would be looking at this applicant as having lost about a half of her earning capacity and that her partial loss should be examined on that basis.

DECISION OF THE PRIMARY JUDGE 13 As noted earlier, the primary judge found a 5% permanent impairment of the respondent's neck and a 9% permanent impairment of the respondent's back; and there is no challenge to those findings. 14 On the question of incapacity for work, the primary judge said this: The complaints made by Mrs Mahmoud greatly exceed anything that could reasonably be expected to result from the pathology revealed by the investigations. That of itself is not a particularly uncommon occurrence. There is no doubt that pain thresholds vary widely. Some people seem to be affected in enormous degree by what one would think would not be particularly disturbing symptoms, however, the problem is Mrs Mahmoud either has or does not have the symptoms of which she complains. There is a substantial body of evidence that her reactions are inconsistent with any physical problem. There is no suggestion in the application or in the body of evidence that the applicant is relying upon any psychiatric condition as such. What seems to be a substantial factor in the presenting problems is what for decades has been called functional overlay. In my experience, that term usually connotes something like the song has ended but the melody lingers on. Something that was originally physically based, as the physical problem resolves, the patient tends to complain more and more, usually, or sometimes only just as much. In other words, it is not so much a psychiatric condition as an idiosyncratic reaction to a particular perceived problem, and I think that is in large part the explanation of the applicant's presentation in this manner.

As I said, the real problem is, does she or does she not suffer the symptoms of which she complains? That will forever also remain one of life's little mysteries, but on the evidence she has consistently complained of an evolving widespread problem becoming more severe and more widespread with the passage of time. In other words, nothing that she has deposed to or told the doctors of is otherwise contradicted other than by saying I do not believe the applicant. There is essentially no attack on credit. True, there was the usual straight leg raising, although could not get her legs up I think 15 degrees, I think it was Dr Potter, notwithstanding which she could sit there and straighten her knees et cetera, so effectively something like full straight leg raising.

Sure there are inconsistencies on medical presentation, but they are recurring types of inconsistencies, the fact that she complains of low back pain when gentle pressure is placed on her shoulders, downward pressure on her shoulders, which I think as Dr Burke says is anatomically not on. But you still get back to the basic problem. Is the applicant malingering, is she merely selling a bill of goods, is she merely deliberately misrepresenting her condition, or does she genuinely subjectively experience those symptoms? I would need something more convincing than the impressions on medical examination to persuade me that I would find that a person who has deposed to tell the truth, the whole truth and nothing but the truth, and has deposed to a set of symptoms of which she has been complaining now for some years, was perjuring herself.

It is a fairly serious step to take to say that someone is deliberately misrepresenting their subjective symptoms. There have been occasions that I have said that is absolutely true. They are laying it on thick with a trowel and probably have nothing wrong with them at all. But there is always some basis, often a bit of video or something like that, on which you can say the applicant cannot be suffering those symptoms or could not do that. In this case, there is no such overt confrontation. On the mere impression of doctors, some of whom of course accept the applicant just as she tells them - Dr Mahony does, Dr Bleasel obviously does - but on the pure impression of doctors, I would not be prepared to say that this applicant does not experience the symptoms of which she complains. If she has those symptoms, it is fairly clear she cannot work.

Those couple of very transient attempts to resume work, if accepted as genuine, obviously indicate she cannot. If you accept the complaints which she makes as genuine, obviously she cannot. However, when you come down to permanent impairments or losses, it is a different world. The fact that you react idiosyncratically to painful stimuli apparently of not particularly severe nature does not mean that you will always continue to experience the symptoms in that light and in that way. Impairment is in effect the same as the old loss of efficient use of, reduction in function of any relevant part of the body, and one that will on all the probabilities be permanent.

… In my view, the applicant probably has a 5 per cent permanent impairment of the neck. I do not think there is any secondary losses so far as the use of the arm is concerned. As I have said before, the applicant has presented a fairly consistent pattern all through. She was voluntarily paid compensation up to 2 August 2001, almost just a few days short of 12 months. There is no suggestion of any change in her presentation at or about that time, and any change that has been deposed to since has been all for the worse. Any note of her complaints since has been all for the worse. In other words, if she was totally incapacitated for the first 12 months, she is probably still even more totally incapacitated if you can have such a thing.

But by and large, realistically, accepting that the applicant does suffer the symptoms of which she complains, she is in my view unable to compete in any reasonably accessible labour market and is in fact totally incapacitated as a result of the employment injury.

GROUNDS OF APPEAL 15 The appellant relies on the following grounds of appeal: 1. That the trial Judge denied the appellant procedural fairness in failing to call for submissions on the issue of whether or not the respondent was totally incapacitated. 2. That the trial Judge denied the appellant procedural fairness in determining the issue of the respondent's capacity for employment by reference to "functional overlay" which condition was neither pleaded as an injury or disability by the respondent. 3. There was no evidence supporting the finding of fact that the respondent suffered from a "functional overlay".

SUBMISSIONS 16 Mr. Campbell SC for the appellant submitted there was no evidence before the primary judge which could have justified a finding that was in substance a finding of a psychiatric or psychological condition; and this was an error of law: Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139. The absence of evidence could not be made up by the capacity of the Court as a specialist tribunal: in so far as the contrary is suggested by MMI Workers Compensation (NSW) v. Kennedy (1993) 9 NSWCCR 482 at 489, the statement in that case was too broad. Further, it would a denial of procedural fairness to act on this capacity without giving the appellant an opportunity to deal with the question: Woods v. Multi-Sport Holdings Pty. Limited (2002) 208 CLR 460 at [160]-[165]. 17 In any event, he submitted, it was a denial of procedural fairness to decide the case on the basis of a psychiatric or psychological condition, when this issue was not identified by the pleadings, the evidence, or the submissions, and in fact had been discounted during submissions: Boral Besser Masonry Limited v. Jabarkhill [1999] NSWCA 476; Industrial Galvanisers Corporation Pty. Limited v. Parmar [2002] NSWCA 255. Also, it was a denial of procedural fairness to award weekly compensation on the basis of total incapacity, when the respondent's submission was for 50% partial incapacity. 18 Mr. Campbell submitted that the appellant had been deprived of the possibility of a successful outcome: Stead v. State Government Insurance Commission (1986) 161 CLR 141; Peakhurst v. Fox [2004] NSWCA 74. 19 Mr. Menzies QC for the respondent submitted that the appellant's submissions addressed the incorrect question. The correct question was, was the respondent suffering disabling pain? If she was, it did not matter how the pain was categorised so long as the pain was genuine and disabling. This was a live issue: it had been squarely put to her that she was exaggerating. Even in the absence of a finding of physical injury fully explaining the pain, the genuineness of her complaint had support from Dr. Potter's evidence. That evidence had been tendered by the appellant, and the relevant passages not omitted. The case was unlike Jabarkhill, in that the primary judge did not make a medical diagnosis, but rather believed the plaintiff, acknowledging in effect that some people feel more pain than others. 20 Mr. Menzies also submitted that, even if there was a denial of procedural fairness, it did not make any difference to the case. Psychiatric evidence which might have been called for the appellant would have been most unlikely to have made any difference; and further submissions would have been most unlikely to have made any difference.

DECISION 21 There is force in the consideration that the genuineness of the respondent's complaints was squarely in issue, and that the extent of her physical injuries was also in issue; and that if the latter were found to some extent adversely to the respondent, but the respondent was accepted as a truthful witness, it was almost inevitable that the respondent would be found to be suffering from a psychiatric or psychological condition generally referred to by the expression "functional overlay", this being something with which workers' compensation practitioners are very familiar. A generally similar approach found favour with the dissenting judge in Jabarkhill. 22 However, in my opinion this consideration is insufficient in this case to overcome the appellant's contentions. An allegation of psychiatric or psychological contributions to the respondent's incapacity for work was never part of the respondent's case. Had it been, the appellant could have obtained an expert's report on that issue. So evidence was lacking, which could have been relevant to the question whether the respondent should be accepted as a truthful witness. Furthermore, the finding made by the primary judge that the respondent was a truthful witness does not of itself establish that her condition was caused by the injury. In my opinion, the case is relevantly similar to Jabarkhill, and the appellant was denied procedural fairness. Furthermore, it cannot be said there is no possibility that a different result would have been obtained, but for the denial of procedural fairness. 23 It is not necessary to decide the other grounds of appeal. However, I would comment that in my opinion, there was some evidence on the basis of which the primary judge could have made the finding in the respondent's favour, and the appellant's arguments have not caused me to doubt the correctness of what is said in Kennedy. However, in so far as the primary judge relied on his expertise, his failure to give the appellant a fair opportunity to deal with the matter compounds the denial of procedural fairness: ICI Australia Operations Pty. Ltd. v. The Workcover Authority of NSW [2004] NSWCA 55 at [229]. 24 Further, in my opinion there was no independent denial of procedural fairness as regards the finding of total incapacity: total incapacity had been claimed, and a lesser claim informally made in the course of submissions does not involve an abandonment of that claim or a denial of procedural fairness.

ORDERS 25 For those reasons, in my opinion the following orders should be made: 1. Appeal allowed. 2. Order for weekly compensation set aside. 3. Matter remitted to the District Court. 4. Respondent to pay appellant's costs, and to have a certificate under the Suitors Fund Act if otherwise eligible. 26 McCOLL JA: I agree with Hodgson JA. 27 CRIPPS AJA: I agree with Hodgson JA. **********

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