A WorkCover victims diary’s list of Adverse comment made by Judges/Arbitrators about independent assessor (IME/ME) s not an exhaustive list or search for adverse comments. These are just examples of the comments, criticism and scathing remarks made about certain independent medical doctors by Australian Judges and Arbitrators, the triers-of-fact, who decide the quality of the independent medical experts and their evidence. We believe we can trust the Court’s words and opinions.
The following IME adverse comments are within public documents, namely published and readily accessible court decisions which can be found on the Australian Legal Information Institute. The comments are unaltered, meaning extracts of court documents are simply copied (sic).
Aworkcovervictimsdiary does not aim to defame nor slander the independent doctors who were called to give expert evidence in Courts but wishes to highlight the (ongoing) problems with independent medical examinations in general.
Adverse comments made by judges merely highlight injured workers’ concerns about several aspects of IME reports such as the concern of bias, the concern that some IMEs are unreliable or ignorant, the concern that some IMEs appear to be stubborn in defending their “opinions” even when confronted with accurate medical information; concern with some IME’s diagnostics of injury/illness and the relation to a work-related incident/accident; concerns about some IME doctors’lack of ethics and morals; concerns with the way degrees of impairment are calculated under the AMA Guides (or GEPIC guides for mental conditions); concerns about frank inconsistencies in IME doctor’s opinions, and so forth.
Adverse comments made by Judges and Arbitrators about independent medical doctors (IME/ME)
In the interest of ending the practice of tolerating poor, substandard, biased IMEs we encourage all injured workers to provide links to court cases with quotes from the Judges that speak to the quality of these so-called independent doctors.
The legal case: Patrick Stevedores Holdings Pty Ltd v Fogarty  NSWWCCPD 76
- There are a number of troubling features about this case.
- First, notwithstanding that every specialist in the case took a history that Mr Fogarty injured his back when the straddle crane he was driving hit a pothole, Dr Casikar did not take that history. Instead, he seemed to have a history that Mr Fogarty’s symptoms started spontaneously at work with no provocation at all. Such a history was not consistent with Mr Fogarty’s evidence and was surprising, to say the least.
- Moreover, Dr Casikar’s assertion that Mr Fogarty’s symptoms could have developed at about the same time or the same stage of his life, irrespective of his employment, was unsupported by any reasoning and stretched credulity to breaking, bearing in mind Mr Fogarty’s age and the lack of degenerative changes in his spine, something that Dr Casikar expressly noted. The basis for Dr Casikar’s assertion is not clear. Moreover, Dr Casikar’s suggestion that the proposed surgery was for degenerative changes in Mr Fogarty’s back was inconsistent with the objective evidence and further undermined the doctor’s credibility as an independent medical examiner.
- These matters raise serious issues about Dr Casikar’s objectivity that warrant investigation into his status as a WorkCover approved impairment assessor.
- Second, the general conduct of this matter has been seriously alarming. Notwithstanding Dr Casikar’s opinion, his report provided no proper basis for Allianz, viewing the matter objectively and fairly, to deny the claim. A fair reading of the history of the claim demonstrates a perfectly consistent story corroborated by complaints to first aid and strongly supported by all the treating doctors and by several objective investigations, namely, a CT scan, MRI scan and a positive discogram. Allianz had no proper reason for denying liability and should not have done so.
- Third, it is apparent that, notwithstanding the admissions made by Mr Taylor at the arbitration, Allianz has not paid the weekly compensation awarded to Mr Fogarty and has thwarted his attempts to have the surgery recommended by four specialists. Allianz is a fund manager under the NSW workers’ compensation scheme. It would (or should) have been well aware of its obligation to pay an award of the Commission for the payment of weekly compensation, which obligation continues notwithstanding the filing of an appeal under s 352. Its failure to do so in the present case is reprehensible and will be referred to the WorkCover Authority of NSW for investigation.
- Fourth, Allianz’s behaviour is all the more disgraceful given that it is obliged to act as a model litigant. That means more than acting honestly and in accordance with court rules, and more than lawyers acting in accordance with ethical obligations; it must be a “moral exemplar” (State of Queensland v Allen  QCA 311 at –; LVR (WA) Pty Ltd v Administrative Appeals Tribunal  FCAFC 90 at , , and –). It is obliged to pay legitimate claims without litigation. Mr Fogarty’s claim was, without doubt, a legitimate claim that should have been paid without the need for litigation. Why it was not paid should also be investigated.
- Fifth, the amendment of the award of weekly compensation could and should have been achieved by the application of the slip rule (s 294(3)), something that Mr Trainor sought to do in his letter of 22 August 2014. It is unsatisfactory that Allianz did not accede to that request, as it would have avoided the need for an appeal. That should also be investigated.
23. Dr Maguire (the injured worker’s treating orthopaedic surgeon) assessed the plaintiff’s disability as being some 27% of the whole person. However, it would seem that he might have made an error in the application of the guides to the evaluation of permanent impairment which he used. However, it is not the disability in terms of percentage loss of function which I regard as being of critical importance for the purposes of assessing damages but the nature of the 24. Dr Toft was called by the defendants (read: IME). He is an orthopaedic surgeon who examined the plaintiff for the purposes of the action. He thought that the plaintiff had a minor (4% of the whole person) disability as a result of the fracture to his right leg. He did not think that there was any indication that the plaintiff had sustained an injury to the upper or lower spine in the accident and no abnormality was detectable in either area. The plaintiff complained to him of symptoms in these areas.
25. Dr Toft thought that the plaintiff had no limitation upon his capacity to work in the type of work which he had previously been doing.
26. Dr Campbell, a neurosurgeon called by the plaintiff, gave evidence that the plaintiff complained to him of symptoms in the upper spine, with pain in the right arm and also a pain in the right leg and lower back. Dr Campbell assessed definite weakness in the grip of the right hand. He diagnosed the plaintiff as suffering from: (a) Chronic soft tissue muscular ligamentus injury to the cervical spine; and (b) Chronic soft tissue muscular ligamentus injury to the lumbar spine.
27. Dr Cameron, a consultant neurologist was called by the defendant. He expressed the view that the plaintiff did not have any disability. The plaintiff complained to him of pain in the lower back and in the upper back and in the cervical spine, the latter radiating into the shoulder and arm.
28. It is plain that Dr Toft and Dr Cameron proceeded upon the basis that the plaintiff had made no complaints of upper or lower back symptoms at the time of this accident or thereafter until a further motor vehicle accident in August 2004. Dr Campbell, in cross-examination, was asked to assume this history.
29. The evidence however in my view, clearly demonstrates that such an assumption is not correct.
33. Counsel for the plaintiff took Dr Cameron to a number of references in the plaintiff’s general practitioner’s records in which it is clear that it was not the case that the plaintiff first complained in August 2004 of symptoms in the spine. In some of the references to these symptoms, the complainant refers to them having been present since the motor vehicle accident out of which this action arises.
34. Dr Toft and Dr Cameron both acknowledged when confronted with these records that the plaintiff must be taken as having complained about such matters before August 2004. The assumptions upon which they have proceeded in this regard were wrong.
The legal case: Alahakoon v Blurlato Pty Ltd  VCC 1524 (24 October 2017)
14. Dr Triggs, consultant psychiatrist, examining the plaintiff at the request of the defendant on 4 October 2013, took a history of the plaintiff possibly having some paranoia when a young adult. Whilst she diagnosed the plaintiff as suffering from major depression, she also referred to the background of a prodromal illness. Dr Triggs is the only medical examiner to make any reference of substance to this possible history of paranoia. It is not a factor to which I attribute any great significance. In any event, as shall be discussed, Dr Triggs also diagnosed the plaintiff as suffering from major depression.
39. Dr Triggs, consultant psychiatrist, examined the plaintiff at the request of the defendant on 4 October 2013. She obtained a history of the plaintiff’s attempted suicide by means of an overdose of tablets in November 2012. Dr Triggs took a history which included the fact that, when the plaintiff was a young adult, she had some paranoia relating to a sensation of being followed. Dr Triggs diagnosed the plaintiff as suffering from major depression, possibly against the background of a prodromal illness. Dr Triggs thought that the plaintiff needed urgent referral to a consultant psychiatrist, but believed that the plaintiff’s work capacity was only limited by any physical restrictions. However, she said the following:
“Certainly her physical illnesses have precipitated the relapse of an underlying tendency to suicidal ideas and this needs to be treated urgently as above.”
52. This brings me to the diagnosis of the plaintiff’s mental condition. I accept that the plaintiff suffers from a major depressive disorder. This diagnosis has been reached by both Professor Dennerstein, examining on behalf of the plaintiff, and Dr Tagkalidis, examining on behalf of the defendant. It is also consistent with the diagnosis of the treating psychologist, Mr Poynton, who has seen her so many times. In his opinion, as stated in the Questionnaire of 6 August last, the plaintiff suffers from a major depressive disorder. Dr Triggs has diagnosed major depression. In his most recent report, Dr Duke has also referred to a major depressive disorder. In summary, it is the diagnosis which I accept.
53. In relation to that diagnosis, I am not of the view that the consequences from which the plaintiff suffers result from the aggravation of a pre-existing condition. Although there is for example, a reference in the report of Dr Triggs to pre-existing paranoia when the plaintiff was a young adult, this does not seem to me to be of great moment. Dr Triggs states that the plaintiff is currently suffering with major depression, possibly against a background of a prodromal illness. In any event, I am satisfied that the consequences from which the plaintiff suffers result directly from the work-related mental illness and did not exist prior to it.
62 I appreciate that Dr Triggs stated that the plaintiff’s work capacity was limited only by her physical restrictions. However, this observation is contained in her report of 4 October 2013. Not only is it now somewhat dated and precedes, for example, the second suicide attempt, but it is a report that was given at a time when the plaintiff was still working on a part-time basis for the defendant. In any event, it is a view which I do not accept insofar as the plaintiff’s present situation is concerned and which does not sit comfortably with other medical reports.
66. The bottom line is that, because a particular plaintiff has applied for various employments, it does not necessarily mean that he or she is capable of undertaking them. In the present case, regardless of the large number of jobs for which the plaintiff has applied unsuccessfully, and whether those applications be by reason of Centrelink requirements or otherwise, I am quite satisfied that she has no capacity for suitable employment I have already determined that the consequences of her injury are permanent within the meaning of the Act.
115)…Of course, the sheer weight of numbers does not mean that Dr Barton is wrong in his opinion. However, I found that his evidence and opinion to be unsatisfactory in a number of ways. At times he appeared to be more concerned with maintaining his original opinion rather than considering the actual facts in this case. He took a very theoretical and dogmatic approach in his reports and in his evidence as to diagnosis, causation and recovery. Despite the radiological findings (which he referred to as being possibly false positives), his examination findings and acceptance of Mr L symptoms, he was reluctant to diagnose bilateral medial epicondylitis and the likelihood of some aggravation or exacerbation of that condition by the incident on 8 July 2014.
(116) His evidence varied as to what he referred to as the likely recovery time of any aggravation or exacerbation event. At one point in his evidence this was “a day or two” and at another “a few weeks”. I believe that he was simply pulling figures out of the air rather than giving a considered opinion, acknowledging that he had accepted Mr L had continuing symptoms at both of his examinations…
The legal case: Gorgievski v BTI Pty Ltd (SKYBUS) & Anor  VCC 2115 (2018)
54. The theory advanced by Associate Professor Doherty is effectively one of a spontaneous reoccurrence, without analysing the 14 years of trouble-free life which the plaintiff enjoyed prior to it. Apart from what has been asserted by Associate Professor Doherty, the views of virtually every other doctor are to the effect that the allegations of bullying are a sound explanation for a precipitation of symptoms allied to the underlying condition.
55 As has been stated several times, the contest in this application effectively revolves around whether I accept the opinion advanced by Associate Professor Doherty, examining on behalf of the defendants, or that of some of the other medical examiners, including treaters. The issue of whether or not the plaintiff was in fact bullied at his place of employment is not to be determined. There is no argument concerning the degree of the plaintiff’s illness or whether the consequences of it meet the requirements of the definition contained in s134AB(37) and in particular paragraph (c) of the definition of serious injury contained therein. The issue is narrowed down to whether the plaintiff’s employment was a significant contributing factor to the recurrence of a preexisting injury or disease within the meaning of s82(2C)(c) of the Act. The plaintiff is not arguing that the mental injury suffered by him was something concerning which he had no history or which arose for the first time because of the workplace bullying.
56 I say now that I prefer the medical evidence advanced on behalf of the plaintiff. This means that I do not prefer or accept the opinions expressed by Associate Professor Doherty and, to paraphrase what was said by Mr Clements in his closing address, it was in that basket which the defendants effectively placed all of their eggs. I have come to that conclusion for a number of reasons, which shall not be discussed in order of importance or significance.
57. Firstly, the matter has to be approached on the basis that there is no challenge to the fact that the alleged bullying took place. Certainly, given the manner in which this application was conducted, that would appear to be the case. It was said at the outset that there was a dispute about whether the plaintiff was bullied or harassed at work, but that it was impossible and undesirable for me to try and resolve that dispute at this type of hearing. The defendants’ position was made clear from the outset and the following extract from the opening of Mr Clements at T22 summarises it neatly:
“His (Associate Professor Doherty’s) opinion is that it’s constitutional, the very nature is it relapses from time to time and nothing that occurred at work or how the plaintiff interpreted it has caused the reoccurrence so that’s what we say about it.”
58. If that be the ground upon which the application is defended, as it is certainly stated to be, the defendants seems to me to face some immediate problems. There is no challenge to the plaintiff’s contention that he was in fact bullied in the workplace. There is no challenge to the proposition that the plaintiff’s interpretation of what occurred at the workplace has caused the reoccurrence of the symptoms which he had previously experienced. Associate Professor Doherty’s opinion is at least partially based upon the proposition that there was misinterpretation by the plaintiff of the actions of others, including management, and that this misinterpretation was due to the nature of the plaintiff’s psychiatric condition.
59. There seem to me to be at least two problems associated with this proposition. Firstly, as was submitted, it is dangerously close to trespassing upon findings of fact, as opposed to expressing an expert medical opinion. Secondly, it ignores the proposition referred to above that the defendants’ case has been opened on the basis that the plaintiff’s condition is constitutional and that nothing which occurred at work “or how the plaintiff interpreted it” has caused the recurrence. In other words, Associate Professor Doherty’s opinion is effectively based upon the premise that the alleged bullying in fact did not take place and that what occurred was a misinterpretation due to the effects of the underlying condition. This does not address the proposition of “What if the bullying was in fact taking place?”, and the fact that bullying was occurring, as asserted by the plaintiff in his affidavit of 15 December 2017, remains unchallenged.
60. In summary, if there was actual bullying, as opposed to misinterpretation, what then becomes of Associate Professor Doherty’s opinion? Is it still to the effect that what occurred was a recurrence of an underlying condition of which misinterpretation is a symptom? One would think that this theory would fall by the wayside. If the bullying was real, does the opinion of the re-emergence of an underlying disease totally unrelated to employment still hold water? I find it very difficult to say that it does. The opinion of Associate Professor Doherty is at least partially based upon a misinterpretation by the plaintiff of what was going on around him, this being due to his deteriorating mental health. I would refer, for example, to paragraph 5(b) of Associate Professor Doherty’s “Response to Specific Questions/Conclusions”. His is a lengthy report, but I cannot see, nor was I directed to, any reference in it to his views or opinion if the bullying was, in fact, a reality, rather than a misinterpreting by the plaintiff of what was occurring.
61. In other words, some of the problems associated with the opinions of Associate Professor Doherty seem to me to be the following. What if there was actual bullying (a question which I am not asked to determine)? What if there was perceived bullying – behaviour which was not intended to be bullying, but legitimately interpreted by the plaintiff as so being? What is the situation if there is no finding one way or the other as to actual or perceived bullying, given that I was told that I was not required to decide this? Finally, given those problems, what then happens to Associate Professor Doherty’s whole theory?
62. In any event, I prefer the opinions of the other medical examiners.
71 Given the manner in which this case was conducted, this does not suffer from the flaw in Associate Professor Doherty’s opinion relating to the misinterpretation of actions (the absence of actual bullying). Specifically, I repeat that I am not asked to rule concerning the presence or absence of bullying.
75. I have not revisited reports which the defendants obtained from Dr Triggs and Dr Shan. As earlier stated, Mr Clements submitted that effectively all the defendants’ eggs were in the basket of Associate Professor Doherty.
76. In summary, for the reasons set out above, I prefer and accept the opinions of the plaintiff’s medical examiners and particularly those of Dr Nathar. I do not accept the conclusions of Associate Professor Doherty. Given the scope of the contest before me, as referred to frequently during these reasons, this means that no other rulings are required.
77. The plaintiff is successful. He has discharged the burden of proof. He has established that he has a permanent severe mental or permanent severe behavioural disturbance or disorder and that, as required by s82(2C), his employment has been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of his severe mental or behavioural disturbance or disorder, and that the consequences of such disturbance or disorder are permanent within the meaning of the Act. He has discharged the burden of proof in relation to both pain and suffering and loss of earning capacity. Leave is given to him to bring proceedings accordingly.
“…The defendant called two psychiatrists to give evidence before me. They were Dr Norman Lewis and Dr Nigel Strauss. Dr Norman Lewis expressed the view in his report and also in evidence before me that the plaintiff was fit for work and there was no existence of any permanent psychological impairment. I found Dr Lewis’ written report bizarre and his evidence before me extraordinary. In his written report Dr Lewis expressed the opinion that “I noted the worker in the last eight years has been taking videos of dead people which could have caused some minor anxiety related to his employment”. He diagnosed the plaintiff (= injured worker) as having an “adjustment disorder of an anxious mood to a minor degree in a perfectionist, worrying and explosive personality which is genetic, constitutional and pre-existing”. Dr Lewis did not explain in evidence on what basis he had determined that the plaintiff’s condition was “genetic, constitutional, and pre-existing”. There appeared to be no evidence of this at all. He agreed in cross-examination that an adjustment disorder was by definition a temporary condition, but he also said that the plaintiff had been suffering from it for a period of 10 years. He agreed that the condition which he had was reactive to his work. In fact, he described it as a “mal-adaptive reaction to a psycho-social stressor”. However, he denied that the plaintiffs’ condition was work-related! It was Dr Lewis’ report which was the basis for GIO having rejected the plaintiff’s initial claim for compensation in August of 1994. In my view, that report and Dr Lewis’ evidence in Court fell far short of what one would expect from a professional witness and I attach no weight to it… The defendant also called Dr Nigel Strauss. Dr Strauss’ evidence was careful and thorough. He was clearly of the view that the plaintiff’s condition had been directly caused by his stressful experiences in the police force. He told me that he could never see the plaintiff completely recovering from his condition but that he would hope that given reasonable and sympathetic rehabilitation in an environment that was not stressful he would be able to increase his working hours. Like me, Dr Strauss was dismayed at the defendant’s attempts at rehabilitation and describes the standard of rehabilitation within the police force as being generally “pretty poor”. He thought the overall effect of the rehabilitation attempted, in this case, was to exacerbate the plaintiff’s psychiatric state. He thought the plaintiff was well motivated and had no cause to doubt his genuineness. He described him as having a high work ethic…” (p.8)
“…I had the advantage of observing the viva voce evidence. I thought Mr Allman a convincing witness, as was his wife. I thought the evidence of the former employees, Denise Latham and Dee Sansom, to be generally reliable, even making some allowance for the fact that they may have no particular affection for their former employer. I was impressed and entirely satisfied by the evidence of Mr Allman’s general practitioner Dr Rogers, his treating psychiatrist Dr Sheehan and his treating clinical psychologist Dr Smith. I attach much more weight to the combined evidence of Dr Sheehan and Dr Smith than I do to any of the psychiatrists who saw Mr Allman for medico-legal assessment. Dr Moore and Dr Gibney generally support the conclusions reached by Dr Sheehan and Dr Smith. Dr Wahr and Dr Kornan expressed opinions which do not support Mr Allman’s case. For reasons I will give later, I reject the opinions of Dr Wahr and Dr Kornan…
“… Dr Sheehan is of the view that “the stress he [Mr Allman] experienced at his place of employment, has directly caused the onset and perpetuation of his depressive illness” – a view Dr Sheehan maintained with vigour in his viva voce evidence. Mr Allman has no history of stress or mental illness apart from a brief incident many years ago which he described as ‘nervous dyspepsia’ and which was apparently treated over a period of weeks. Mr Allman was described as an energetic, positive and friendly person. His depressive illness came ‘out of the blue’. What else might have caused it? Two suggestions were made by the defence, based on the opinions of Dr Wahr and Dr Kornan. The first is that Mr Allman’s depression was a delayed reaction to a serious accident in which his wife was involved some twelve months prior to the first onset of symptoms of depression. The second suggestion was that the depression was endogenous or, in Dr Wahr’s words, it came “from within”…
“… Unfortunately, any weight which might otherwise have attached to Dr Wahr’s opinion is diminished by the fact that he came to different conclusions on each of the two occasions on which he examined Mr Allman. After his first examination, he concluded that “Mr Allman’s difficulties in the work situation resulted from him having anxiety and depression as a result of his wife’s condition last year”. In his second report, fourteen months later, he makes no mention at all of Mrs Allman’s illness. He said, “Mr Allman is a very genuine man but I feel that his agitated depressive reaction has not been caused by the work situation but arises from within.” Judging from the content of the two reports, I can only conclude that Dr Wahr gave the most perfunctory attention to Mr Allman’s difficulties at work. When asked why there is so little detail on this subject in his reports Dr Wahr said: “I asked him if he wanted to tell me more but he said he didn’t”. Mr Allman was sent to Dr Wahr for assessment of alleged work-related stress. One would have expected Dr Wahr to explore the matter somewhat more deeply…”
“… Dr Kornan saw Mr Allman on a single occasion in February of this year. Unfortunately, he was also not provided with the reports of the treating doctors. This strikes me as less than satisfactory. It is difficult enough for a psychiatrist to be called upon to make a one-off assessment in a case of this kind. Why can’t the psychiatrist be provided with appropriate information in relation to treatment and the assessments of the treating doctors? Dr Kornan himself conceded that it put him at a disadvantage. Dr Kornan’s opinion is that the source of the depression is likely to be constitutional, rather than the consequence of any external stressors. For this reason, he thinks it unlikely that Mr Allman’s employment is a significant contributing factor. He drew attention to Mr Allman’s bout with bowel cancer some years ago and his wife’s recent serious accident. If Mr Allman survived these traumatic life events without developing a depressive illness, then he could equally cope with the stresses of his employment, Dr Kornan argues. But he acknowledged that a determination of causation must be made on the whole of the evidence, to which he is not privy.
“…I respect Dr Kornan’s opinion but have a strong preference for the evidence of Dr Sheehan, Dr Smith, Dr Moore and Dr Gibney. I add Dr Rogers: although he is not a psychiatrist, he is a very experienced general practitioner. In the result, I am satisfied that Mr Allman’s employment was a contributing factor to the onset of his depressive illness. The question then is whether it was a significant contributing factor. The Oxford Dictionary definition of ‘significant’ includes “noteworthy, of considerable amount or effect or importance, not insignificant or negligible”…” (p.12)
Senior counsel criticized the defendant’s attempt to lead evidence of an available job at the State Insurance Office and he was even more critical of the evidence of Dr Kornan. He submitted that Dr Kornan’s evidence revealed bias and here he pointed to Dr Kornan’s description of the report of Ron Camp &Associates and his apparent reluctance to draw any inference from that report which would be favourable to the plaintiff.
In addition, in a case such as this where there are conflicting medical opinions about the nature and extent of the injuries alleged to have been suffered by the plaintiff, the lay evidence can be invaluable in making sense of those divergent medical opinions. The ultimate interpretation of the medical evidence and the findings of fact based on that evidence are a matter for the Court (Dahl v. Grice (1981) VR 497). Here I have been assisted by the evidence of the plaintiff himself and his wife. As I have said, I formed a very favourable opinion of the plaintiff who I find to be a truthful witness who provided an accurate summary of his mental disabilities. In essence, I find that the plaintiffs present mental impairment is a direct consequence of the pressures to which he was subjected in the course of his employment at the State Insurance Office. I am unimpressed by the defendants attempt to contest the question of causation and to rely upon evidence of Dr Kornan that the plaintiff was suffering from a personality disorder in any event and that his present mental impairment is not work-related.
I gained quite the opposite impression of Dr Kornan in the witness box. Dr Kornan strongly defended his reports and his oral evidence in cross-examination. His evidence could best be summarised as first, that the plaintiff is now fit to return to work, but second, in any event, any disability that the plaintiff might still have, which might affect his return to work is unrelated to his employment and was as a result of a personality disorder from which the plaintiff suffered in any event.
0n one occasion during his evidence, I gained the impression that Dr Kornan was hinting at the possibility that the plaintiff might not be genuine and was merely going to see Dr Collier for the purpose of obtaining medical certificates rather than for treatment. Although subsequently, he moved somewhat from this position in cross-examination, Dr Kornan introduced the aspect that the plaintiff might not be genuine for the first time in this hearing. Dr Kornan’s misgivings, as I took them to be, were not in accordance with the way that counsel for the defendant presented the defendant’s case and it is a proposition which I reject.
I gained the impression from the manner in which Dr Kornan gave his evidence that he was reluctant to concede any point which was favourable to the plaintiffs claim and I was left with the impression that Dr Kornan was reluctant to say anything which would erode the likelihood of the defendant successfully defending these proceedings. (p.22)
“…The court finds it difficult to understand how the medical witnesses whose reports were tendered on behalf of the defendant, Dr Nathar and Dr Mendelson, could come to the conclusions they did in respect of the plaintiff’s psychiatric impairment…”
“…The clinical histories taken by both doctors suggest that their questioning of the plaintiff in a clinical situation never threatened to obtain an accurate history from the plaintiff. I found the reports of both doctors to be of little assistance and in my view divorced from the reality of the matter as demonstrated by the plaintiff’s presentation in the witness box…”
Editors Note: this is a very significant legal case which also demonstrates that the workcover system, and the use of surveillance, may – indeed – cause severe mental illnesses.
The legal case: Martin v Return to Work SA  SAET 158 (7 August 2019)
“… 104)…The respondent referred to the evidence of Dr Munn that broken ribs are most commonly caused by direct impact and that Mr Martin was not exposed to any such impact during the roof incident. Whilst accepting that there was a vulnerability due to osteoporosis, the respondent relied on a passage in Dr Munn’s report of 27 March 2017, in which he indicated that the rib injury resulted from some cause other than work. Dr Munn wrote the following:
The acute nature of the injury is not inconsistent with his description, in particular, localised pressure over the anterior left-sided ribs. He has been diagnosed as having osteoporosis and this very likely was a significant contributor to his fractures. In my opinion, had he not had osteoporosis, it is unlikely that he would have fractured his ribs with this incident, although conversely, osteoporosis, in the absence of force such as that described is unlikely to have resulted in these fractures…”
“…My impression of Mr Martin (the injured worker) is that he was an unsophisticated but relatively articulate witness who presented in an entirely genuine manner. He was subjected to a searching and lengthy cross-examination, which I consider was unnecessarily intrusive with respect to aspects of his medical and personal history. Further, he was subjected to what I consider to be a gratuitous proposition that he falsely claimed that his rib injury occurred at work. The respondent was entitled to robustly and vigorously challenge the history of events given by Mr Martin, given the anomalies and inconsistencies described. However, I do not consider that there was a proper evidential basis to put to him, let alone to maintain in final submissions, a proposition that, in effect, he had engaged in a sustained and calculated course of fraudulent conduct involving provision of a confected history of a rib injury at work to EML, to medical practitioners and on oath to the Tribunal.
(44)”Mr Ireland is the only medical practitioner who doubts the veracity of the plaintiff and the only one who found significant discrepancy between objective physical findings and the severity of the subjective complaints made by the plaintiff.
(45) Mr Ireland is also the only medical practitioner who unequivocally states that the plaintiff is fit for his pre-injury work I am not prepared to accept the opinion of Mr Ireland because it would mean I would have to reject the opinions of all of the other medical practitioners. I see no good reason why I should take that dramatic step. Furthermore, I make no finding whether the plaintiff would be better off having an amputation of his little finger. It seems to me that it has been put forward as a treatment option for the pain he experiences, but not one which would return the plaintiff to a better level of function in his left hand.”
The legal case: Mitrevski v C. Stokes & Co. P/L  VCC 1 (28 January 2000)
“Dr Arthur Klepfisz examined the plaintiff on behalf of the defendant on two occasions, both in 1999. He regards the plaintiff as genuine – as, indeed, did all the medical examiners. He accepts that stress can “trigger” a psychotic illness in “someone constitutionally vulnerable to psychiatric illness”, but he concludes: “I do not believe that [the mental disorder] is work-related but rather it is a consequence of the stress to do with his father’s illness in a man who may have been predisposed to a schizo affective disorder.”
“There is no evidence in this case of the plaintiff’s father’s illness, other than the references to it in Dr Klepfisz’s reports. So far as I can see, there is no reference to it in any of the other medical reports. Neither the plaintiff nor his sister were asked anything about it in cross-examination, nor was it mentioned by Mr Forsyth in his submissions. In these circumstances, it would be almost perverse of me to find that the plaintiff’s mental illness was triggered by his reaction to his father’s illness. Dr Klepfisz’s reports are, therefore, in this regard, of limited assistance.”
“The medico-legal witnesses called on behalf of the plaintiff were Dr Cole, a psychiatrist, and Mr Strangward, an orthopaedic surgeon. On behalf of the defendant, a number of medico-legal witnesses were called. These were Mr Buzzard, an orthopaedic surgeon, Dr Nathar, a psychiatrist, Dr Strauss, a psychiatrist and Mr Menelaus, an orthopaedic surgeon. All medical witnesses adopted reports which were received in evidence. In the course of giving their evidence further facts, being mainly facts deposed to by the plaintiff were put to the medical witnesses. Even given these additional facts, however, it is clear that the Court had before it far more detailed relevant evidence than these witnesses. In addition to the witnesses who gave oral evidence in support of their reports, counsel for the plaintiff tendered as part of the plaintiff’s case…”
“…Here assessments ranged from 20 to 25 per cent by Dr Cole (depending on which method he used) to assessments by Dr Nathar of 17 per cent (with five per cent which was not work-related, a view in respect of which he seemed less certain in cross-examination) and Dr Strauss 15 per cent with five per cent which was not work-related. Here I note that initially, counsel for the defendant submitted that as the plaintiff was working as at 1 December 1992, and as considerable emphasis was placed upon the incident at work in 1994, she should not receive any award pursuant to s.98 of the Act for this alleged injury. It is not an argument that appeals to me. I accept the evidence of Dr Cole that the plaintiff’s ultimate inability to continue with work was brought about by a combination of the incidents at work involving physical and verbal abuse by patients and that the 1994 incident was merely the culminating event..”
“Nor was I impressed by the submission by counsel for the defendant, or the opinions of the two psychiatrists concerned, that events in the distant past, unrelated to work, should be used to reduce the percentage loss attributable to the work-related incidents. To a layperson, this seems a very high minded approach to the assessment of the causes of loss of mental powers. All of us carry our own baggage of past emotional trauma and I consider that the Court would be best assisted by medico-legal psychiatrists if they were to assume that the patients they were examining and testing already bore the wear and tear of life’s vicissitudes and adopt that imperfect baseline before making any assessment of them for compensation purposes.”
The legal case: Mitrevski v C. Stokes & Co. P/L  VCC 1 (28 January 2000)
Dr Shan went on to say: “Given the additional information that has been made available for this re-examination, I am compelled to revise my opinion and now state that the claimant developed the condition known as schizophrenia. There is no evidence that his employment significantly or materially caused this condition. Instead, the cause of the condition was a pre-existing biological vulnerability, together with lifestyle factors.” In evidence, Dr Shan adhered to the revised opinion in his second report. I did not find him particularly convincing. He said it is not established that stress accelerates schizophrenia. This opinion cannot be reconciled with either of his reports. In the first report, he said the plaintiff’s employment “significantly or materially contributed to the onset of [his] condition and continues to do so.” It is clear from the context in which this opinion was expressed that the features of the plaintiff’s employment which he regarded as contributory were those which the plaintiff found stressful. In the second report, he said, “the cause of the condition was a pre-existing biological vulnerability, together with lifestyle factors”. The lifestyle factors were those he had gleaned from the statements with which he had been provided.
The point is that Dr Shan’s preparedness, in the first report, to attribute the onset of the disease (at least in part) to work-related stress, and in the second report to “lifestyle factors”, is at odds with his suggestion in evidence that stress does not accelerate schizophrenia. Indeed, he retreated from this position under cross-examination. I have a note of him conceding “you would want the worker to avoid undue stressors in the course of his work”. He also appeared to accept that an individual in the prodrome stage of schizophrenia (prior to the onset of florid psychosis) would begin to experience difficulty coping with situations, both at work and in private life, which had not previously been troublesome and which a normal individual would take in his/her stride. Dr Shan conceded that an inability to cope with life stresses, including work stresses, would be likely to generate anxiety in the individual concerned; in turn, such anxiety would exacerbate the inability to cope; this would generate further anxiety and the cycle would, in essence, become self-perpetuating.
In my opinion, Dr Shan’s revised opinion can be sensibly explained only on the basis that he treats the plaintiff’s complaints of work-related stress as wholly delusional and, therefore, a symptom of the disease rather than a contributor to it. In this regard, it is difficult to say whether Dr Shan fully understands the definition of injury in s.5 of the Accident Compensation Act 1985. He says in his report “there is no evidence that [the plaintiff’s] employment significantly or materially caused this condition.” The plaintiff does not have to establish that his employment “caused” his condition. Indeed, the likelihood is that the origins of the disease are constitutional. The question is, rather, whether the employment significantly contributed to an acceleration of the developing illness. I must say, this is poorly understood by many medical examiners, including (alarmingly) members of Medical Panels.
So far as concerns the level of disability found by Dr Syme, I thought he was too unwilling to adjust his assessment when informed that aspects of the history given to him by the plaintiff were inaccurate.
I make the general observation (based on my experience) that expert medical witnesses are often difficult to budge, even when confronted with information which undermines the basis upon which they formed their original opinions. I would put Dr Epstein in that category. I was left wondering whether he was seeking to defend his diagnosis because he remained confident that it was correct or merely because it was the diagnosis he had made.
Dr Epstein at that point said he had not used the term ‘post-traumatic stress disorder’ in his report because in his view “the plaintiff does not meet the criteria for that diagnosis”. In conclusion, I have to say I am not sure what to make of Dr Epstein’s evidence. His original diagnosis (not post-traumatic stress disorder, apparently, but a stress disorder stemming from the bank incident – I don’t really understand the difference) was made on the basis of a history given to him by the plaintiff which was false in a number of respects. I think the highest his evidence can safely be put is that the plaintiff’s delay in describing symptoms to a doctor or therapist is not inconsistent with a connection between the bank incident and the deterioration of the plaintiff’s mental state.
The legal case: Martin, D.E. v N.Z.I. Workers Compensation (Victoria) Ltd – 1996
I was left with the impression that the witnesses had made assumptions rather as laymen might along the lines of “Well we all know that a mastectomy would be depressing, wouldn’t it?”. The opinion may be right but its roots seem to me to be embedded as much in folklore and expectations as in expertise. There was no evidence from the Plaintiff in this Court, nor did either witness say that she had been depressed from this aspect.
Dr Puce for the Plaintiff gave a 17% assessment reducing this by 4% because he thought that 4% could be attributable to anxiety brought about by the necessity of her undergoing a mastectomy in December 1994. Dr Siena made an allowance of 10% and reduced this by 5% because of the mastectomy. Much was made by Mr McTaggart of the basis for the differing assessments. I confess that I was somewhat surprised at the readiness of each witness to make a deduction in respect of the mastectomy by assuming a reaction. Had this been a case involving the mastectomy alone, one would have expected a detailed explanation. In fact, none were given by either witness.
The fact that there is such diversity of opinion as to the manner in which the Guide should be interpreted in psychiatric cases continues to create difficulty, doubt and uncertainty in the minds of judges, magistrates, medical panels and others who are called upon to make determinations in this area. The sooner something is done to clarify the position, the better.