Jabarkhil v Boral Besser Masonry [2001] NSWCC 160

Compensation Court of New South Wales

CITATION : Jabarkhil v Boral Besser Masonry [2001] NSWCC 160 PARTIES : Mohammed Jabarkhil Boral Besser Masonry Ltd MATTER NUMBER(S) : 7716 of 1997 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- re-trial LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/6/1998, 10/9/1998, 2/7/2001, 3/7/2001 EX TEMPORE JUDGMENT DATE : 07/03/2001

FOR APPLICANT: Mr Bachelor instructed by Galluzzo, Golotta Andriano LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos instructed by Moray & Agnew

JUDGMENT: 1. Mohammed Jabarkhil seeks weekly benefits from 16 March 1997 to date and continuing (compensation payments were made until 15 March 1997), together with lump sum compensation, pursuant to s 66 and s 67, for neck and back impairments, payment of medical expenses, and an award of interest on accrued weekly benefits from 23 December 1996 (Exhibit 10). 2. The basis of Jabarkhil's claim is that he was injured, in the employ of Boral Besser Masonry, on 11 February, 23 February and 31 May 1996. 3. Mr Catsanos, counsel for the respondent, informed the Court that the matters in issue were: firstly, the fact of any injury; secondly, the nexus between any incident at work and the applicant's impairments and incapacity; thirdly, the extent of any incapacity and the quantum of any assessment; and finally (and most importantly) whether the applicant's evidence could be accepted. 4. This claim came before Walker J on 24 June and 10 September 1998 and his Honour delivered judgment on 20 October 1998. The basis of the judgment (in which his Honour found Jabarkhil had been injured and was incapacitated) was at least in part, the functional condition from which the applicant obviously suffers. This condition was not pleaded and, because it formed an important part of his Honour's judgment, the matter was taken on appeal. In its judgment delivered on 21 December 1999 the Court of Appeal, by majority, ordered a re-trial. 5. However, in the meantime, it would seem Jabarkhil suffered a radical loss of memory and therefore he was unable to give any satisfactory evidence before me on 2 July 2001. He was called to give evidence, but since he could not remember being employed by the respondent, or being injured at all when working for the respondent, and did not remember, he said, anything beyond yesterday, did not remember his own counsel, nor his solicitor, nor how many brothers and sisters he had, or even how old his father was, or whether he was driving a car in February this year, and a lot of other matters, the transcript from the earlier proceedings was tendered and is now Exhibit A. 6. Mr Jurisich, of counsel, represented the applicant on 24 June 1998 and led evidence in such a way that it would be impossible to know whether Jabarkhil remembered anything, since most questions are answered with a simple yes, though at one stage Mr Jurisich asked him what he was doing as a 'coolie operator' and the applicant replied that he was stacking bricks, that he was putting the bricks on the coolie to heat them (as appears at p.1 of the transcript of that day). Some more detailed answers were given and, in fact, at one stage Mr Jurisich asked You continued to do this work until 30 May 1996?, and he replied by way of correction No, until 12th June 1998. 7. The evidence continued on 10 September 1998. Mr Batchelor, acting for the applicant, lead just some brief further evidence-in-chief, and Mr Catsanos cross-examined at some length. It would appear that by 10 September 1998 the applicant's memory, at least in cross-examination, had seriously declined, as can be seen from p.3 of the transcript of that day, also p.5 and p.6. Mr Batchelor submitted that the history of treatment (beginning with Dr Chou on 19 June 1996, some two weeks or so after the third injury; continuing with Dr McDonald, a rehabilitation expert, Dr Gallardo, a general practitioner, who began his treatment on 21 January 1997, Dr Adler, another rehabilitation expert, Dr Hamid, who began his general treatment on 24 March 1998, and Dr Choudhary, a psychiatrist, treating Jabarkhil on 21 May 1998), supports the proposition that Jabarkhil had been suffering from depression from June 1996, and that he continues to suffer from that same condition. 8. Dr Chou, for example, recorded the fact that he prescribed Prothiaden, an anti-depressant, in June 1996. A list of the various drugs the applicant has consumed over the years can be seen in the report of Dr Choudhary of 27 March 2001 (Exhibit J). Mr Batchelor submitted that there had been a consistent complaint of pain - neck and arm pain, back and leg pain - from the beginning (though it is questionable whether he complained of neck pain until about August of 1996), and that the applicant has undergone consistent treatment for pain and depression. Mr Batchelor submitted that it was clear from the evidence, the applicant had suffered soft tissue injuries which had caused significant depression, and that this significant depression as well as the cocktail of drugs being consumed, would explain Jabarkhil's bizarre behaviour, and particularly his astonishing loss of memory. The Memory Problem 9. Mr Catsanos submitted that the evidence of the applicant given before me on 2 July could be described as Pythonesque. Jabarkhil claimed he had lost almost completely the ability to remember any details of his life beyond what had happened yesterday. He did not remember his counsel, or his solicitors, and only remembered the date of the hearing because the letter informing him of it was on his table at home. He consulted it regularly and happened to consult it again yesterday. He said that he did not remember Mr Catsanos or Mr Batchelor, that he did not know the people who were living in the same house as himself, that he did not recall any of the incidents at work, or even being employed by the respondent. He did not remember what he had done in Australia since his arrival here, or when he had arrived here. He did not remember appearing in Court - I don't remember anything. 10. Despite this, he remembered the names of his treating doctors, Dr Choudhary, Dr Hamid and Dr Adler, the rehabilitation specialist. He produced these names without being prompted. He was able to identify the drugs he was taking, and even the strength of each drug, and how many he took per day, though he did not remember when he had last visited Dr Hamid. The ability to remember certain things, and yet the inability to remember the details of other events of his life appeared very puzzling. His memory seemed extremely selective. At the end of the evidence, I concluded this man would have to be unconscious or in a coma, or at least seriously brain damaged, to be as unaware as he claimed he was. With his level of recollection (if accepted it) this man would not be able to function within the community, yet he answered questions readily, without hesitation, in English (- which is not his native tongue but which he speaks quite fluently), - without slurred speech or without slow, deliberate delivery. His failure to remember basic facts, and the recent development of this phenomenon demanded a medical explanation, particularly by a psychiatrist, and not simply by way of general statements, but by a clear path of explanations. 11. When Jabarkhil appeared before Walker J on 10 September 1998 he was cross-examined by Mr Catsanos who asked could he remember that before his employment came to an end, a doctor had told him to try at least working two hours a day, on light duties? He did not remember. Did he remember telling a doctor that he thought a doctor was trying to kill him by asking him to go back to work for two hours a day, and telling him that he was going to resign and seek legal advice? He did not remember. He was asked was it his claim that he could not remember anything at all about 1996, from May 1996, and he replied that he was taking a lot of medication and 1996 had been a long time ago. He did not remember the doctor he went to. He did not remember what happened when he saw the doctor. He said that sometimes he had a memory, that sometimes he forgot things, but he did not remember what he had said in June 1996. His memory it would seem, as at September 1998 when he gave evidence, was, if his evidence is to be accepted, seriously compromised. 12. Jabarkhil was examined by Dr Shand on 25 October 2000. He told the doctor he did not recall the type of work he was doing, or the job he had had with Boral. He said that sometimes he recalled his job with Boral, and sometimes he did not. At least such was a memory he had at that time. Remembering sometimes, forgetting at others, seemed quite curious - remembering that he forgot. To another direct question about his last job, Jabarkhil told the doctor that he did not recall any job in Australia. He did not remember any schooling in Afghanistan. He remembered nothing about Afghanistan and his life there, though he admitted that he remembered his family living in Western Australia, and he had talked by phone with them on the night before his consultation with the doctor. He did not know when he or his family had come to Australia. He could not say whether he was very young or not, on his arrival. He told Dr Shand that he had four sisters and five brothers, that his father was in Western Australia and his mother had died in Western Australia a couple of years before. None of this information was available to his memory when he gave evidence before me. He did not recall Dr Gallardo or Dr Chou. He said he had no memory of himself and his personality prior to the accident, and no memory of the people in his life. Dr Shand thought that the applicant was reluctant to be physically examined. His cooperation was suspect. He also thought that his loss of memory was fatuous. 13. However, Dr Choudhary was the treating psychiatrist on 21 May 1998, a few months before his giving evidence in September 1998, and a few weeks before he gave evidence in Judge Walker's court in June 1998. Dr Choudhary was able to take quite a detailed history of his work at Boral, as appears on p.1 of the report of 27 July 2000. Dr Choudhary noted that he could not understand what Jabarkhil was trying to tell him. There was some problem in his ability to explain things, and this could be part of the reason why he could not be understood by other people. 14. Dr Choudhary treated him on visits subsequent to May 1998. Jabarkhil himself said that he consults him about once every two weeks. As at July 2000, Dr Choudhary said that his patient had taken almost every known pain-killer. He had tried 25 different types of medication, including anti-depressants, anxiolyptic agents and pain-killers, as well as asthma tablets, tablets for diabetes and for ulcers and so on. Describing the applicant's condition in July 2000, Dr Choudhary said his conversation appeared to be quite normal. His higher mental functioning including judgment, reality testing and insight were normal, there were no problems with his memory. He gave a clear detailed information about family history, about his brothers and sisters who were described: all are healthy. 15. It was on the basis of this examination and continuing treatment that Dr Choudhary diagnosed a traumatic anxiety syndrome, post-traumatic depression, as well as chronic insomnia. As at July 2000, and prior to that time, memory was described as 'problem-free'. I note also that Dr Hamid, the general practitioner, who began treatment in March 1998, does not report concern about the applicant's memory problems. Dr Choudhary provided some explanation of the development of this problem in his further report (part of Exhibit J). He reported the names of a large number of drugs has taken over the years, adding that the above-mentioned medications had been used at various times since 1998 in various combinations, quantities and doses. 16. Jabarkhil attended Dr Choudhary on a regular basis. The doctor was able to observe that during more recent contact, he had begun complaining of tiredness, lethargy, lack of concentration, inability to remember things, insomnia, and it was also noted that there was memory deterioration over a period of time since my initial contact with him until the present date, (which is March 2001), and that this loss of memory was related particularly to recent events. He had, for example, great difficulty recalling what he had eaten for breakfast. He could not give adequate information as to what he had done the day before. All this certainly indicates that there has been memory deterioration over a period of time. He thought that the concoction of drugs, including Panadeine Forte, Neulactil, Dothep and Zoloft twice a day, were having an affect on his memory, that there was significant deterioration in memory which was quite possible due to the combination of the medication. 17. He also observed that the severe depression caused psycho-motor retardation, that is, reduction of both mental and physical energy, and that this in turn caused lapses of concentration and memory. Dr Choudhary said that the total inability to recall could be reasonably causally related to his current intake of medication. He thought it was also possible he was using more pain-killers and that this was well-known to cause confusion, to interfere with clear-thinking. I did not form the impression the applicant was confused. In fact his answers were clear, to the point, and rapidly given. 18. The doctor does not provide any explanation of how this cocktail of drugs would have such a radical affect and, even more importantly, Dr Choudhary did not give the impression that he was so concerned about this total inability to recall that he felt it necessary to reduce the drug in-take or to treat his patient for such a dramatic loss of memory. I do not accept that Jabarkhil has had such a sudden and dramatic loss of memory. I do not find the general statements of Dr Choudhary persuasive. He does not, first of all, explain how such well-known drugs could so radically interfere with the applicant's ability to remember. Furthermore, he does not suggest any treatment for the applicant. The Medical Evidence 19. The applicant's medical evidence is a mixture of orthopaedic opinions and psychiatric reports. 20. The report of Dr Bodel dated 29 August 1997 (Exhibit 1) details the various radiological investigations since February 1996. Some of these reports are in evidence and can be seen as Exhibits 4, 5 and 6, Exhibit D and E. 21. In his report, Dr Bodel set out in chronological order the radiological investigations. He said that he had seen an x-ray of the lumbar sacral spine of 23 February 1996. It was normal. A bone scan of 6 May 1997, was also normal. He had viewed a CAT scan of the lumbar spine of 14 June 1996 (Exhibit 5), which was normal, a bone scan of 23 January 1997 (Exhibit 4) which was normal, and a further CT scan of the lumbar spine of 5 July 1996 which was normal. He also viewed an MRI scan of the lumbar spine of 4 November 1996 (Exhibit 6) which was normal, and he saw a report of MRI scans of the cervical and thoracic spine, which were said to be normal. 22. The treating doctors' reports are Exhibits 2, C, B, 7, H, F, K and J. 23. The first doctor to have examined the applicant after the injury of May 1996 was Dr Rajaratnam. He saw Jabarkhil on 5 June, 12 June, 16 June 1996 and then Dr Chase examined him on 19 June 1996. The report (Exhibit 2) deals with the findings and diagnoses of Dr Rajaratnam and Dr Chase. It records that Jabarkhil had presented on 5 June with a history of persisting back pain. He was seen on that day by Dr Rajaratnam who noted that he was in no apparent distress, although there was tenderness in the lumbosacral region. Straight leg-raising was 80 degrees bilaterally, and deep tendon reflexes were normal. The straight leg-raising was seriously diminished later, to 20 degrees and 30 degrees, when other doctors examined the applicant. 24. Dr Rajaratnam provided a certificate unfit for work for two days, and he arranged a review on 12 June. He was further reviewed then on 16 June when the doctor saw a CT scan (exposed on 14 June) which was normal. Dr Rajaratnam had referred his patient to Dr Sengupta, an orthopaedic specialist. 25. Dr Chase examined the applicant on 19 June when he was given a history of the applicant's origins in Afghanistan and of his work with the respondent. The doctor reported that his patient showed extremely exaggerated pain behaviour with deep breathing, sighing and grimacing. The range of movement in the lumbar spine was zero, straight leg-raising was 20 degrees bilaterally, and the sciatic stretch tests were negative. The deep tendon reflexes were brisk and equal with down-turning plantars, power in the lower limbs was 0 out of 5. Dr Chase concluded that Jabarkhil's examination was so inconsistent and exaggerated that it was impossible to state with any real accuracy how severe any pain he may be suffering would be. This report was tendered by the respondent. 26. Dr Chou (Exhibit C) began treatment on 19 June 1996. He also took a history of the applicant's origins in Afghanistan, and provided a brief history of minor ailments as the applicant had been part of his practice since 19 March 1994. Dr Chou reported that Jabarkhil showed reduced muscular spasm, limited lumbar spine movement, but normal straight leg-raising test. He provisionally diagnosed a lumbar strain. He said that the applicant was in a significant amount of pain and referred him to Dr McDonald, a rehabilitation specialist. 27. Dr McDonald's reports are Exhibits B and 7. He began treatment on 28 August 1996, and ceased in September 1997. He also recorded a history of the injuries at work both in February and May 1996. Clearly the applicant's memory in August 1996 had not yet been affected. 28. Dr McDonald reported that he commenced Jabarkhil on Prothiaden, though it would seem from Dr Chou's report that it was he who had done that. In his report of December 1996, Dr McDonald assessed 15 per cent back impairment, and a 10 per cent neck impairment. The applicant returned in January 1997, reporting worsening pain. He was reviewed on 20 January, in February and March 1997 when the applicant had undergone a CT scan of the brain. This had been suggested by Dr McManis. Dr McDonald reviewed him again on 17 March and in April 1997. At that stage he examined the CT scan of the brain. This showed a tiny low density region of indeterminate nature and of doubtful clinical significance. The brain scan was repeated on 6 May and was found to be normal. The doctor then reported various and continuing treatment through June, July and September. He finally declared that the applicant was not totally incapacitated, but was seriously incapacitated. He assessed a 25 per cent back impairment and a 20 per cent neck impairment. 29. Another general practitioner began treatment on 21 January 1997. Dr Gallardo's report is Exhibit H. When he first saw Jabarkhil, his chief complaint was difficulty in breathing. Then on 17 February he presented with multiple problems. Dr Gallardo said that he appeared to be suffering a major depression, complicating his chronic back pain, though he commented that there was no identifiable pathology demonstrated. 30. The applicant attended Dr Adler from July 1997 until August 2000. He is also a rehabilitation specialist and his reports are Exhibit F. When he examined him in July 1997, Jabarkhil showed virtually no lumbar movement, straight leg-raising of 30 degrees on both sides. He referred him on to Mr Garafali, a clinical psychologist, and also to Dr Cummine, an orthopaedic surgeon at Westmead. In November 1998 he was referred to Dr Biggs, another orthopaedic surgeon, and in April 2000 to Dr Irani, again another orthopaedic surgeon. I note that there are no reports from any orthopaedic specialist to support the applicant's orthopaedic case, and particularly no reports from Drs Cummine, Biggs, Irani, or Sengupta, all of whom it would seem treated the applicant. 31. Dr Adler diagnosed severe chronic low back pain, with bilateral sciatica. He said that which the chronic pain syndrome had gradually resolved over a 12 month period, the applicant was still significantly disabled at the levels of the neck and back. He assessed 30 per cent back impairment, and 20 per cent neck impairment. 32. Dr Hamid is also a general practitioner who began treatment on 24 March 1998. He diagnosed a depressed mood and anxiety. He thought the applicant suffered a soft-tissue injury with a chronic pain syndrome. 33. Then Dr Choudhary, the psychiatrist, began his treatment in May 1998 and has conducted regular sessions. He diagnosed post-traumatic anxiety syndrome, post-traumatic depression, pain in the low back and neck, and chronic insomnia. In the further report (to which I have already referred) of April 2000, he attempted to provide some explanation of the applicant's serious loss of memory. 34. The respondent tendered an orthopaedic report of Dr Bodel and Dr Joseph Black (Exhibits 1 and 3), and a psychiatric report of Dr Shand (Exhibit 11). 35. Dr Black examined the applicant in February 1997, about a year after the alleged incidents. He observed, inter alia, that on examination, the applicant resisted straight leg-raising at 30 degrees on both sides, and even at this level he shuddered! He thought that it was just possible Jabarkhil had sustained some muscular and/or fibroligamentous back strain during the course of his work. However, any assessment which he could make was marred by the type of presentation. He said that, if malingering could be excluded, there was a significant functional and/or psychiatric element present. Despite his claimed symptoms, the clinical and radiological examination showed no good organic basis for his claim, for his ongoing back pain and disability. 36. This was also the general conclusion of Dr Bodel. At p.27 of the transcript (now part of Exhibit 1), he said that he could not find any clinical evidence of pathology which would explain the presentation. There were no objective evidence of musculoskeletal pathology, but he could have had a musculoligamentous strain which might well have been the case from the description of the injuries or the events: I would have expected those, the effects of those clinical situations, to have settled long ago. He observed that, on examination, Jabarkhil resisted straight leg-raising at 40 degrees on both sides, that there was no wasting on either limb and no reflex abnormality or sensory impairment. He thought, in the opinion section of his report, that there was no logical explanation of the rather dramatic presentation. He concluded that the applicant had recovered from any minor constitutional discomfort which might have occurred and that there was no objective evidence of ongoing structural damage. 37. Dr Shand's report (to which I have already referred at some length) observed that the applicant's explanation for his global defect of memory, including his job and the alleged injuries at the time of the accident, was fatuous, that the physical examination results depended entirely on non-organic responses, and there were obvious inconsistencies, particularly relating to the range of passive hip flexion. The applicant also was unwilling to provide a urine specimen. Dr Shand thought that he was either totally malingering, or grossly exaggerating whatever complaints he might have, both physically and psychiatrically. 38. I note there is no objective evidence of a orthopaedic problem, either in the lumbar sacral region or the cervical area. Consequently, if the applicant suffered any injury, he has suffered a soft-tissue injury at best, and therefore the Court is dependent on his credit. His credibility is critical in assessing whether he continues to be disabled, and whether he has suffered any permanent impairment. 39. The two incidents in February 1996 did not result in any claim. There was no neck complaint recorded it would seem, until 26 August 1996 (Exhibit B). There was, for example, no neck complaint in the report of Dr Chase, neither to Dr Rajaratnam. Furthermore, after the May 1996 incident, the applicant was away from work, it would seem, for a few days and returned to work until 12 June 1996, for perhaps six or seven or eight days. There seems to have been a worrying pattern of changing of the treating doctors, the general practitioner and the specialist. I note again that there is no report from any orthopaedic treating specialist, nor from the psychologist, Mr Garafali. The absence of these reports went unexplained. And the doctors who began treating the applicant, Dr Chase and Dr Rajaratnam, thought that there was exaggeration and inconsistency in presentation. There was no satisfactory explanation provided of the radical memory loss, and no treatment of such a major condition. I concluded, from observing Jabarkhil, that he was making no effort to remember. He did not even pretend to try, or to seem worried about his constant answers I don't remember. This seemed to be more a ritual reply. It was more evident in cross-examination than in evidence-in-chief, since he did remember some significant things when questioned before me by Mr Batchelor. 40. I concluded on the evidence that Jabarkhil's evidence could not be accepted. His evidence was essentially untrustworthy. Dr Shand concluded in October last year that he was deliberately attempting to mislead him. I formed the same conclusion. On the evidence, and for the above reasons, I am not persuaded the applicant has any permanent impairment or any incapacity for work beyond March 1997 which could be traced back to a work-related injury. If the applicant was injured in February and May 1996, the injury had only temporary duration. For these reasons, I enter an award for the respondent. 41. I make no order as to costs. 42. I grant liberty to apply, but I do not make an order of refund at this stage. Mr B. A. Batchelor instructed by .Galluzzo, Golotta Andriano (Sols) appeared for the applicant Mr J. W. Catsanos instructed by.Moray & Agnew (Sols) appeared for the respondent