Papamanos v Commonwealth Bank of Australia [2013] VCC 1491

4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and her husband, medical and radiological reports, vocational reports and other material were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.**

**5 The plaintiff is now fifty-three years of age. She is married with five children. She was born in Greece and migrated to Australia when she was six years old. She completed Year 11 but failed to complete Year 12 at high school. She has worked most of her adult life, with time off after the birth of each of her children. Initially, she worked packing and preparing pastries and as a housemaid. She commenced work with the defendant in 1988 as a teller. In approximately 2000, she became a customer service officer at the Watergardens branch of the defendant bank. She had various duties, including computer work, dealing with customers, including opening accounts, giving advice as to loans and foreign currency transactions, and various other banking duties. She commenced work at approximately 8.30am and worked until 5.00pm. She estimated approximately 40 per cent of her work was sitting, 40 per cent standing and 20 per cent walking. She enjoyed her work and found the job satisfying.

6 Much of her social and domestic life revolved around her family. She was able to undertake all of her housework in an unrestricted manner and enjoyed work in her garden, in particular the planting of vegetables. She now has seven grandchildren, and enjoyed her involvement with them. She and her family would regularly go on caravan holidays and she enjoyed swimming and social tennis.

7 Prior to the onset of her neck symptoms, she was generally well and was able to work and look after her family without restriction.**

**8 In approximately October 2006, the plaintiff began to experience some neck and shoulder stiffness. She said there was an air conditioning vent near the cubicle where she worked and cold air blew onto the area of her neck and shoulders. The problem appeared to fluctuate until September 2007, when she claims that her neck pain became worse. At the time, she had to work at a keyboard and fill in forms for customers, which required her to hold her neck in a forward flexed position.

9 She first attended her general practitioner, Dr Haddad, on 10 September 2007, complaining of pain in her lower back, neck and shoulders. A WorkCover Certificate was provided, and she was referred for osteopathy.

10 The pain in the neck increased and she returned to Dr Haddad in November 2007 complaining of severe neck and left arm pain. She was referred for a CT scan[1] which showed moderate degenerative disc disease at C6-7 without focal protrusion and left C6-7 foraminal stenosis. She remained at work full time, but continued osteopathy, massage, physiotherapy and acupuncture treatment, none of which provided long-term relief. According to her affidavit,[2] she said that the constant and repetitive typing, writing of notes, filling in of forms while in a standing position aggravated the symptoms of her neck.

11 In November 2007, Dr Haddad referred the plaintiff to Mr Han, neurosurgeon. He noted the findings on the CT scan and referred the plaintiff for an MRI scan.[3] This noted congenital spinal canal stenosis at C5-6, and being moderate to severe at C6-7. Mr Han considered the plaintiff had a moderate disc protrusion at C6-7, impinging on the C7 nerve root. He suggested if her symptoms continued, consideration would be given for surgery in the nature of an anterior cervical discectomy and fusion.

12 Mr Han saw the plaintiff again in May 2008 complaining of constant neck pain with headaches and "imbalance". She said her left arm pain had settled completely. He concluded that surgical intervention would have a low likelihood of success, and did not recommend it.

13 In a final report of 9 October 2008,[4] Mr Han noted the left arm pain had settled but the plaintiff was left with some neck pain. He recommended the plaintiff see Dr Clayton Thomas, a rehabilitation specialist.

14 The plaintiff says that in April 2008, she had a "near collapse" at work. At the time she was cradling a telephone at her neck and typing. She said she felt dizzy and unbalanced. She received a certificate and was off work for one month, returning on restricted duties, 4 hours per day, five days per week.

15 In June 2008, she took long service leave and travelled with her family to Greece for three months. She said she did not travel as much as she had planned, and suffered continuous neck pain, such as to require regular physiotherapy treatment.

16 She returned to work in September 2008, and worked on modified duties, 3 hours per day, three days per week.

17 Dr Haddad arranged a further MRI scan of the neck in September 2008[5] which showed multi-level intervertebral disc space degenerative disease without nerve root compromise. There was moderate left C6-7 neural exit foraminal compromise.

18 In December 2008, Dr Haddad referred the plaintiff to Mr Brendan O'Brien, neurosurgeon.[6] To him she complained of chronic cervical neck pain which had fluctuated, but with a significant recurrence in September 2008. Mr O'Brien said:**

"I believe a great majority of Elefteria's symptoms are coming from cervical spondylosis with secondary paraspinal muscle spasm. She certainly has multi-level disc desiccation which could be contributing to her symptoms. While her most recent MRI scan revealed left neural exit foraminal stenosis she does not appear symptomatic from this. I would not recommend her to have any percutaneous injections or underlying surgery. I think she is best treated through a formal rehabilitation program. I would think it would be useful for her to see Dr Clayton Thomas at the Dorset Rehabilitation Unit in Pascoe Vale. ...

In summary I have found Elefteria genuine and consistent in her reporting today. I think she has longstanding chronic pain associated with cervical spondylosis. Operative intervention is not indicated or required. A multidisciplinary rehabilitation program would be beneficial in her case."

**19 Mr O'Brien made no precise statement as to the relationship between the plaintiff's neck pain and her work duties.

20 In January 2009, the plaintiff was referred to Dr Clayton Thomas and reported fairly diffuse and widespread pain symptoms, including pain in both arms and into the fingers of both hands. He said that the plaintiff had tender points consistent with fibromyalgia[7]. He described the degenerative changes on the MRI scans as minor and noted minor exit foraminal stenosis, in particular at C6-7. He said the plaintiff was suffering a diffuse and widespread Pain Syndrome which was likely to be fibromyalgia.[8] He suggested an active exercise program and that she attend a management rehabilitation program. He reviewed the plaintiff again in March 2009 and noted the plaintiff complained of the side effects with the prescription of Cymbalta. After the plaintiff completed the pain management program she continued to complain of diffuse and widespread pain and said a number of the exercises and activities had flared up her condition.

21 In May 2009, she was still working on restricted duties on a part-time basis, 9 hours per week, when her employment was terminated.

22 By July 2009, Dr Haddad considered the plaintiff was suffering Depression, but that she was not keen to take anti-depressant medication. In January 2010, he referred her to a psychologist, Lewi Yiolitis, and she has been treated by that practitioner through to the present time.

23 The plaintiff made a claim for compensation by form dated 1 October 2007. In 2008, the WorkCover insurer paid medical and like expenses, and made payments of weekly compensation until those benefits were terminated by letter dated 2 September 2011.[9] The basis of the termination was said to be reports from various practitioners, Doctors Strauss, Entwisle, Davison, Fraser and Wilks.

24 The plaintiff undertook extensive physiotherapy from Physio West Clinic[10] and Dinah Parade Spinal and Sports Physiotherapy Centre.[11] The treatment has continued through until the present time, with the plaintiff making the payments herself.

25 According to the plaintiff's most recent affidavit, she claims the following consequences of her neck injury:

• She suffers constant neck pain which fluctuates and is unpredictable. It is often severe, and she has to lie down to rest on most days.

• She suffers regularly headaches, nausea and dizziness.

• Her sleep is interrupted and disturbed and according to her affidavit she gets 4 hours' sleep a night.
• Her intimate life with her husband is affected.
• She finds the heavier aspect of housework difficult.
• She is able to drive a car, but for short distances.
• She has not worked since 15 May 2009 and does not believe that she has a current work capacity, in particular for the areas of employment suggested by the defendant, including as an enquiry officer, receptionist, tourist information officer or retail assistant.
• Her neck condition requires medication including Panadol Osteo (approximately four per day), Stemetil for nausea and dizziness (as required), Di-Gesic for pain relief (as required), Nurofen Plus for pain relief (as required), Diazepam, a muscle relaxant (one to two per month).
• She sees a general practitioner approximately once per month for the issue of WorkCover certificates, and for the prescription of medication.
  • She sees a psychologist once a month for counselling treatment.
  • She has hydrotherapy and massage regularly.
  • She is unable to react with and look after her grandchildren as she would wish.

26 The plaintiff's husband swore an affidavit which generally supported the plaintiff as to the consequences she claims to have suffered. He said that he took his wife away with a four-wheel drive and caravan. In evidence, the plaintiff said she and members of her family would go away about ten to twelve times a year, usually for several days and sometimes for a week. The trips were within Victoria.

**27 Aside from the treating practitioners, the plaintiff has been seen by a wide range of consultant physical and psychological doctors. On behalf the defendant, the plaintiff has been referred to a neurosurgeon, a general surgeon, an orthopaedic surgeon, four occupational physicians, two psychiatrists, a rheumatologist and a psychologist for opinions over the period from 2008 through to the present. Although I did not seek and was not provided with any specific reason for such a vast array of practitioners, the number is excessive and lends to a suspicion of "doctor shopping". I make no specific finding in relation to that issue as there may be reasons why so many doctors were required. Nonetheless, the number was excessive. With the introduction of the Civil Procedure Act 2010, the time will come when the Court will actively intervene to reduce the number of practitioners whose opinions are sought.

28 The principal issues in this application may be simply stated. They are:**

• whether the plaintiff's neck condition is work related;
• the extent to which her presentation is as a result of physical injury, or psychological disorder; and
• as to the plaintiff's work capacity.

**29 I shall confine my review of the opinions of the various practitioners to matters which are related to these issues.

30 According the various reports of Dr Haddad, the treating general practitioner, the plaintiff has a Chronic Pain Syndrome secondary to degenerative disease of her cervical spine. She also has a reactive Depression for which she receives psychological treatment. He said the plaintiff suffers severe constant neck pain and stiffness with headaches, nausea, dizziness and tingling of the arms. He said the plaintiff was unable to return to her pre-injury duties and that given her condition and age, it was unlikely she would return to any form of meaningful employment, even on limited hours.[12]

31 Dr Clayton Thomas, who treated the plaintiff in 2008 and 2009, found the plaintiff was complaining of diffuse and widespread pain. He said she was suffering a Pain Syndrome likely to be fibromyalgia.

32 According to the report of the treating psychologist, Lewi Yiolitis, the plaintiff was treated with cognitive behavioural therapy and presented as intense, anxious, depressed and angry with her former employer. He said it was "unforeseeable" that the plaintiff would return to her previous employment at the Commonwealth Bank.

33 The plaintiff was examined in 2012 and 2013 by Dr David Weissman, consultant psychiatrist. She complained of chronic neck symptoms with headache, nausea and dizziness. She said she did not take antidepressant medication. She said her concentration and memory were poor, and her energy and motivation low. Dr Weissman described the plaintiff as open, honest, reliable, genuine, candid and a credible historian. He diagnosed her as suffering a Chronic Pain Disorder associated with psychological factors and possibly a general medical condition. He said the plaintiff suffered a mild to moderate reactive Depression and Anxiety Syndrome, constituting a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate severity.

34 The plaintiff was examined by Dr Bruce Kinloch, specialist in pain medicine and rehabilitation, in April 2012, and again in September 2013. The plaintiff complained of continuous exertion related headaches, dizziness, nausea and pain in the middle fingers of each hand, together with pain on the left side of her neck, travelling to the shoulders. He said the plaintiff showed objective signs of C6-7 disc protrusion and had developed a Chronic Pain Syndrome in the neck and both shoulders, which was related to her employment with the defendant.[13]

35 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, in April 2012 and April 2013. He said that the plaintiff was suffering significant ongoing symptoms in her cervical spine likely to be due to musculo-ligamentous strain and aggravation of underlying degenerative disease with a probable disc injury at C6-7. Further, the plaintiff had developed a Chronic Pain Syndrome with Anxiety and Depression. He said: "This complicates the assessment and management of her condition."[14] He said that the issue of the relationship of her condition to work was complex and difficult. It was likely the plaintiff had pre-existing degenerative problems in the cervical spine but that the work duties aggravated the condition, and those symptoms persisted. In relation to the plaintiff's capacity for work, he said that she would have difficulties with repetitive bending and lifting, lifting of weights of more than 5 kilograms and she would have to shift her posture on a regular basis. He said she would perform sedentary duties providing they did not require her to hold her head in a fixed position. He said with the development of the Chronic Pain Syndrome, a return to work would be problematic.

36 The plaintiff was examined by Dr Barrie Kenny, psychiatrist, in October 2010. In addition to the physical symptoms, the plaintiff complained of feeling bullied and harassed at work. The plaintiff said she was miserable, that her memory and concentration were impaired and that she was irritable. Her domestic and recreational duties were affected. He said the plaintiff suffered a significant Adjustment Disorder with Depressed and Anxious Mood in relation to her response to physical symptoms. He said:**

"I suppose we can call [it] a chronic pain syndrome. When I use the term 'chronic pain syndrome' I am referring to somebody who has pain and whose life is restricted and has developed symptoms as a result thereof. As far as I am concerned, there is no good evidence that she has major psychological factors contributing to her physical symptoms."[15]

**37 He said her fitness to work depended upon her physical status, not psychiatric symptoms.

38 According to the report of Mr Brendan O'Brien, the treating neurosurgeon, who the plaintiff saw in December 2008, the great majority of her symptoms were coming from cervical spondylosis with secondary paraspinal muscle spasm. He noted the multi-level disc desiccation which could be contributing to her symptoms. He said he found the plaintiff genuine and consistent in her reporting. He said operative intervention was not indicted.

39 According to a vocational assessment report of Margaret Leitch, an occupational therapist with Evidex, because of the plaintiff's symptoms, there was no suitable employment available to her. I found the reports of the vocational assessors retained both by the plaintiff and the defendant of little assistance. In my view, the questions to be answered in this application fall to be determined upon an assessment of the evidence of the various medical practitioners.

40 On behalf of the defendant, the plaintiff was assessed in 2008 by Mr Daryl Nye, neurosurgeon. In the history provided, the plaintiff said that she developed neck and shoulder pain in September 2007 as a result of her exposure to cold air via an air conditioning vent. He concluded the plaintiff had degenerative disease in the cervical spine, which had been present for some time, with foraminal stenosis at C6-7 which he said was consistent with the neurological findings indicating C7 radiculopathy. He said the condition had not been caused by her employment, but work had aggravated the situation by her holding her neck in a flexed position, with some contribution by the cold air. He thought the prognosis was reasonable and at that time said that the plaintiff did not have an incapacity for employment and was in fact functioning normally.

41 The plaintiff was examined by Professor Vernon Marshall, general surgeon, in June 2008. At the time he saw her, the plaintiff had constant pain which had not resolved during a period away from work. None of the treatment, including osteopathy, physiotherapy, acupuncture, remedial massage, hydrotherapy or home exercises had provided any long lasting relief. The plaintiff described feelings of "imbalance" and on examination all movements were cautious with perceived pain. He diagnosed the plaintiff as suffering neck pain, aggravated by her work activities, which had developed into a Chronic Pain Syndrome.

42 The plaintiff was examined on a number of occasions in 2008 and 2009 by Dr Dominic Yong, occupational physician. He said the plaintiff had suffered an aggravation of degenerative changes in her cervical spine, which had been complicated by psychological issues, thus amplifying her pain. He said the plaintiff, in 2009, had the capacity to participate in a graduated return to work and had a capacity for work duties within certain restrictions, including repetitive neck movements, prolonged neck postures, avoiding pushing and pulling and lifting weights of more than 3 kilograms. He suggested a rehabilitation program.

43 The plaintiff was examined by Dr Nigel Strauss, psychiatrist, in October 2012. He said the plaintiff presented with a history of neck pain, which may or may not be work related. Although, in his first report he said the plaintiff did not suffer any psychiatric problems, by the time of his second report of August 2012, he said she had developed a Pain Disorder and a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said her psychiatric problems were related to employment. If her physical condition was related to her employment, he said that, on balance, the plaintiff did have an organic basis for her pain but that was being amplified unconsciously by psychological factors, including Anxiety and Depression. In other words, he said her pain was both psychologically and organically based. He said the plaintiff could work five to ten hours a week in a clerical job within restrictions, although her prospects of finding such employment was minimal. He said from a purely psychiatric point of view, she was not totally incapacitated.

44 The plaintiff was examined by Dr David Barton, occupational physician, in October 2009. She complained to Dr Barton of generalised constant neck pain extending into both shoulders and at times through the arms. On examination, he said the plaintiff was strongly focussed upon her pain with much sighing, gasping and complaints of pain. Examination of the neck showed wide spread tenderness to light touch. He said:**

"Her current presentation strongly points towards her condition having a non-physical basis. There were a range of features that suggest some deliberate functional overlay, which makes determining any underlying physical problem somewhat difficult. I do not believe that the work she was performing would have led to any irreparable physical problems, that would in any way account for her ongoing symptomatology. While our investigations have shown some long standing problems, I do not believe that these would have been caused by her work activities and nor would they simply account for her ongoing complaints."[16]

**45 He said that all physical therapies had been unsuccessful, which was not surprising.

46 Dr Timothy Entwisle, consulting psychiatrist, examined the plaintiff in December 2009. He said the plaintiff was symptom focused, preoccupied with her pain, and appeared flustered and anxious. He said the plaintiff suffered from a Pain Disorder. He said her condition could not be explained by her work duties and that personality and psychosocial factors contributed to her presentation in a significant way. He said from a purely psychiatric perspective, the plaintiff had the ability to perform the various employment outlined in the vocational reports. He said she would be able to undertake her various activities of daily living if the physical treatments stopped.

47 The plaintiff was examined by Dr Kevin Fraser, rheumatologist, in January 2011. He noted that her cervical spine movements were restricted to about 30 per cent of normal in all directions and that there was obvious over-reaction upon physical examination. He said he did not consider there was any work-related injury and to the extent that there was an organic basis for her symptoms, it was due to age-related degenerative changes and not to any aggravation caused in the course of her employment. He said however, given her marked over-reaction to physical examination, there were non-organic factors which were largely responsible for her symptoms. He said the plaintiff had a psychologically-based Chronic Pain Syndrome. He said the plaintiff was fit to resume her normal duties.

48 Mr Robert Wilks, psychologist, said the plaintiff was suffering a Pain Disorder which was not causing any work incapacity.

49 The plaintiff was assessed by Mr Michael Polke, orthopaedic surgeon, in January and August 2012, and September 2013. On examination, he noted marked restriction of cervical spine movements and general diffuse tenderness. He said the plaintiff suffered cervical spondylosis which was age related and very common for females in the community. He also said she had features of abnormal illness behaviour. He said her original pain may have been aggravated by her work duties but that aggravation had long since ceased. From a physical point of view, she had the capacity to return to her previous employment with some appropriate ergonomic adjustments.

50 The plaintiff was assessed by Dr Mary Wyatt, occupational physician, in February and August 2012 and September 2013. She complained of chronic cervical pain symptoms consistent with those she told other practitioners. There was a very modest range of neck movement. There were symptoms of pain behaviour including grimacing. Dr Wyatt said the plaintiff suffered a myofascial problem which was unrelated to her work. She said non-physical factors played a substantial role. The substantially reduced range of neck movements, Dr Wyatt said, was not consistent with a neck problem of her type. She said that the physical issues were contributing only to the extent of 5 to 10 per cent to her general presentation. She said the plaintiff had the capacity to work in a broad range of employment within the banking environment, such as a teller, customer service or call centre operator, on a full time basis.

51 According to the various reports of Resolutions RTK, a vocational assessment organisation, a number of suitable areas of employment were identified, including as an enquiry officer, receptionist, tourist information officer and retail assistant.**

**52 Various of the medical reports refer to the plaintiff as a genuine and credible historian, and others considered she was exaggerating her symptoms, and displaying signs of illness behaviour. Surveillance film of the plaintiff of 30 September and 2 October 2013 was shown. The plaintiff was seen to be interacting with her family in various ways. At her home, she directed her husband to back a large white caravan into their front yard. The plaintiff was able to move her neck without significant restriction. On another occasion, she appears to walk across a road without any impediment, and bend into her car on several occasions. Generally, she was able to move her neck and arms in a relatively free manner inconsistent generally with her presentation in the medical examinations and to the Court. In the course of giving her evidence, she held her neck in a rigid position, regularly standing and sitting. Likewise, when her evidence was concluded, she paced up and down at the rear of the Court for a period, with her neck held fixed and giving the impression of being in significant discomfort. I formed the view that her behaviour in the Court was an attempt to show the seriousness of her pain and restriction.

53 At the conclusion of her cross-examination, I suggested to the plaintiff that it seemed to me that she was able to move her neck a little better in the film than her presentation in Court. She said that some days were better than others.[17]

54 On behalf of the defendant, Mr Simpson admitted the plaintiff had been the subject of surveillance over a very considerable period of time from October 2012 until October 2013, something in excess of 60 hours of observation. This, like any video surveillance, should be seen in the context of representing only a very brief excerpt from the plaintiff's life. It is reasonable to infer that during the other periods of observation, the plaintiff was not moving in a manner inconsistent with her affidavit and medical histories.

55 However, I did form the conclusion that her neck movement shown in the surveillance was inconsistent with her presentation to the doctors and to this Court. These inconsistencies cannot be explained on the basis that her neck is better on some days than others. Further, the plaintiff's capacity to participate in regular caravan trips with her family is inconsistent with her claims of pain and restriction. As a consequence, I do have reservations in accepting that her pain and restriction is as severe and as constant as she would have it.**

**56 I am satisfied from the bulk of the medical opinions that the plaintiff suffered degenerative disease in her cervical spine prior to 2006 which was asymptomatic. In particular, according to the radiology, it was degenerative disc disease, most particularly at C6-7, with foraminal stenosis at that level. Up until 2006, the plaintiff was able to carry out a range of domestic and recreational duties, and work on a full-time basis without neck pain or restriction.

57 The first significant issue is to determine whether the plaintiff's condition is work related. While it seems somewhat unusual that relatively straightforward work duties such as completing forms, assisting customers with their enquiries and working at a computer could cause the onset of significant neck pain, nonetheless a number of practitioners have concluded that while there was pre-existing degenerative disease, the work duties aggravated that condition and that aggravation has continued through to the present time. In particular, Dr Haddad, the general practitioner;[18] the plaintiff's treating physiotherapist;[19] Dr Kinloch[20] and Mr Miller[21] all considered that the plaintiff's current presentation is as a result of her work duties. In the defendant's camp, Dr Barton appeared to accept that to be the case.[22] On the other hand, various of the defendant's practitioners formed a different view. Dr Davison;[23] Dr Fraser;[24] Mr Polke[25] and Dr Wyatt[26] all consider that while there may have been some initial aggravation, the plaintiff's subsequent presentation was due to the underlying degenerative disease, and any work component has long since ceased.

58 Further, the plaintiff made a claim for compensation, and medical and like expenses and weekly payments were made over approximately three years from 2008 to 2011. On behalf of the plaintiff, the admission of that claim and the payment of compensation was said to constitute an admission as to causation in accordance with the principles by Ansett Australia Ltd v Taylor.[27] That decision has been the subject of consideration in two recent cases in the Court of Appeal: Fokas v Staff Australia Pty Ltd[28] and Transport Accident Commission v Florrimell.[29] The reason for the cessation of payments would appear to be the opinions in various medical reports, including those of Doctors Strauss, Entwisle, Davison, Fraser and Wilks. Clearly, a worker's condition can fluctuate with time, and the assessment by an insurer can vary depending upon medical opinions obtained. In Florrimell, the Court noted that an issue of causation may be complex and in respect of which medical opinions conflict. Further, relevant medical information may not be available until a later date. As was observed, it would be contrary to the efficient administration of a compensation scheme if every time a medical procedure was sought that careful consideration to the issue of causation, in particular the obtaining of medical opinions, had to be undertaken.

59 However, whether the acceptance of the plaintiff's claim and the payment of weekly payments of compensation and medical and like expenses constituted an admission or otherwise, nonetheless the plaintiff was an active woman, engaged in a range of domestic and recreational duties, and capable of working on a full-time basis until 2007 or 2008. Her complaints of pain and restriction to the early treating practitioners relate the onset of her pain to her work duties, and the air conditioning. I am satisfied that the plaintiff's underlying degenerative condition was aggravated in those work duties. It is always a very difficult assessment to determine when aggravation of an underlying degenerative condition ceased, and the condition itself took over. Given the plaintiff has complained of pain and restriction from 2006 or 2007 through to the present time, I am satisfied that her current presentation is directly related to the aggravation caused by her work duties over the years, in particular from 2000, when she assumed the duties of a customer services officer.

60 The next matter to determine is the nature of the plaintiff's underlying condition, and whether it has an organic or psychological basis.

61 In Meadows v Lichmore Pty Ltd,[30] the Court of Appeal accepted that there was a two-step approach in determining whether an injury had an organic basis. If it could be said that the injury had a "substantial organic basis" in respect of pain and suffering consequences, then that was sufficient to satisfy the statutory criterion. If the answer to that question was no, then the next step is to disentangle the consequences of physical injury from psychological injury. It was only if the plaintiff, on balance, satisfies the Court that the pain and suffering consequences could be attributed to physical injury, that a "serious injury" within the meaning of the Act, may be found.

62 With few exceptions, the various practitioners refer to the plaintiff suffering a Chronic Pain Syndrome. That was the view of the general practitioner;[31] Dr Weissman;[32] Dr Clayton Thomas;[33] Dr Kinloch;[34] Mr Miller[35] and most, if not all of the defendant's practitioners, including Professor Marshall;[36] Dr Yong;[37] Dr Strauss;[38] Dr Barton;[39] Dr Entwisle;[40] Dr Barton;[41] Dr Fraser;[42] Mr Wilks;[43] Dr Polke[44] and Dr Wyatt.[45] In fact, the only practitioners who have attributed the plaintiff's pain and restriction to purely organic factors are Mr Nye,[46] and the early treating neurosurgeons, Messrs Han and O'Brien. In relation to those practitioners, they examined the plaintiff in the early days of her injury, in 2007 and 2008, and did not have the benefit, as did many other practitioners, of mapping the progress of the plaintiff over a considerable period.

63 While I accept the plaintiff did aggravate the underlying disease in the course of her work duties, I am satisfied that her current presentation has been overwhelmed by a psychologically-based Chronic Pain Syndrome. As many practitioners point out, the radiology shows moderate changes without focal disc prolapse and without any confirmed neurological signs.

64 As I understand a Chronic Pain Syndrome, it arises as a result of psychological features which amplify the pain and the restriction which a person may feel. On the one hand, a person may have an honest belief that he or she is suffering pain and restriction which has a psychological rather than a physical basis. On the other hand, there may be an intended exaggerated response in the nature of abnormal illness behaviour. In considering the issue, I am satisfied that there is an element of abnormal illness behaviour, or embellishment given the presentation of the plaintiff in the surveillance film, where it appeared she was able to move her neck in a relatively unrestricted manner.**

**65 Apart from the opinions of Messrs Han and O'Brien, and the early opinion of Mr Nye, none of the medical practitioners who have examined the plaintiff at the request of her solicitors have made a clear assessment of the extent to which the consequences of the neck injury of which she complains have, on the one hand, an organic, and on the other hand, a psychological basis. The onus is upon the plaintiff to satisfy the Court to the extent that the application relates to physical injury, that the consequences do have an organic basis. In accordance with the opinions to which I have referred, I am satisfied that the plaintiff's complaints of pain and restriction are substantially as a result of the Chronic Pain Syndrome and do not have a significant physical genesis.

66 Without at this stage making a comprehensive assessment of the plaintiff's work capacity, to the extent that her cervical condition prevents her from working, or restricts her in the areas of employment to which she is suited by age and experience, again I am of the view that the reason for any restriction is due to the Chronic Pain Syndrome, rather than any physical injury.

67 In the circumstances, the plaintiff's application under ss(a) fails.**

**68 In considering the plaintiff's psychological condition, it is necessary to consider not only the Adjustment Disorder with Anxiety and Depression, as has been referred to by a number of practitioners, but also her Chronic Pain Syndrome. The first matter is to assess the pain and suffering consequences. These include her physical pain and restriction, to the extent that it relates to the psychologically-based Chronic Pain Syndrome, Anxiety and Depression and the other symptoms referred to, in particular by the consultant psychiatrists. Aside from the attendances on the treating psychologist, Lewi Yiolitos, the plaintiff has received little if any psychological treatment. She does not take anti-depressants, although I accept these have been tried on a number of occasions and she has found she has developed side effects. There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word "severe" in the definition of the Act has been held to be a word of stronger force than "serious".

69 Dr Weissman, who assessed the plaintiff on behalf of her solicitors, assessed the plaintiff as suffering a Chronic Pain Disorder with psychological factors, together with an Adjustment Disorder of mild to moderate severity. He said, on psychiatric grounds alone, there was no pure psychiatric incapacity for work, although when consideration was given to a Chronic Pain Disorder, taking into account her elevated health concerns, somatic symptoms, pain focus and pre-occupation, as well as her tearfulness, distress and emotional lability, he considered the plaintiff did not have a capacity for any work. A similar conclusion was reached by the general practitioner, Dr Haddad,[47] and Dr Kinloch.[48] Mr Miller[49] said the plaintiff had a capacity for work but with restrictions, and a return to work would be problematic considering the Chronic Pain Syndrome. Dr Kenny said the plaintiff's work capacity was to be determined by her physical, and not psychiatric, status.[50]

70 Amongst the defendant's practitioners, Dr Strauss said the plaintiff had work restrictions from a physical perspective, but from a purely psychiatric view, she was not totally incapacitated, although may be when both psychiatric and physical features are combined.[51] Dr Entwisle said from a psychiatric perspective, the plaintiff had the capacity to perform the various jobs set forth in the vocational report.[52] Dr Fraser[53] and Mr Polke[54] said the plaintiff had the capacity to return to her former duties, with some ergonomic adjustments. Dr Wyatt said the plaintiff had a capacity for a broad range of employment in the banking industry.[55]

71 Considering the opinions above, and my findings as to the plaintiff's credibility, from a psychiatric perspective, I am satisfied the plaintiff has a work capacity. There is nothing in her affidavit material to suggest that she has made any attempt to obtain employment since losing her job with the defendant in May 2009. It is clear she takes the view that she has no work capacity for any form of employment. It is difficult to be precise as to the nature and extent of the plaintiff's work capacity, but I am satisfied that she has the capacity to work in the areas identified by the defendant's vocational assessors, including as an enquiry officer, receptionist, tourist information officer or retail assistant. I am not satisfied that the plaintiff has proved, as the Act requires, that she has a loss of work capacity of more than 40 per cent. The definition of "suitable employment" requires any assessment of work capacity to take into account a worker's age, education, skills and work experience, as well as the effects of any injury. I prefer the opinions of those practitioners who conclude the plaintiff does have a work capacity.

72 Bearing those matters in mind, I am of the view the plaintiff does have a significant work capacity, should she wish to employ it.

73 Thus in relation to both pain and suffering, and loss of employment capacity, I am satisfied the plaintiff does not achieve the statutory test. Her application thus fails.

[7] A non specific condition of long-term aches and pains with tenderness over a number of points of the body. The cause is unknown. (Collins Dictionary of Medicine).

[27] [2006] VSCA 171

[28] [2013] VSCA 230

[29] [2013] VSCA 247

[30] [2013] VSCA 201