Dandanchli v Pan Laboratories [2001] NSWCC 145

Compensation Court of New South Wales

CITATION : Dandanchli v Pan Laboratories [2001] NSWCC 145 revised - 5/09/2001 Mounir Dandanchli PARTIES : v Pan Laboratories (Australia) Pty Limited MATTER NUMBER(S) : 46273 of 1999 JUDGMENT OF: Geraghty J CATCHWORDS: Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 3/7/2001, 4/7/2001 EX TEMPORE JUDGMENT DATE : 07/04/2001

FOR APPLICANT: Mr J H Pearce instructed by Cameron Gillingham & Boyd LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr H J Halligan instructed by Nevill & Edwards

JUDGMENT: 1. Mounir Dandanchli claims weekly benefits from 17 November 1998 to date and continuing, and lump sum compensation for back and neck impairments, for loss of use of both legs and both arms. He also claims payment of medical expenses, and interest, at least on the weekly benefits from November 1998 to date. 2. Dandanchli claimed he was injured on 29 August 1998, 17 October 1998, and 14 November 1998, sustaining injuries to the head, neck, shoulders, arms, back and legs, and that as a consequence, he has sustained a functional overlay or a psychiatric injury. On his evidence the most significant event was the one on 17 October 1998, though in August 1998 he suffered an injury to the head which, he said, resulted in headaches and neck pain. All the other complaints which he made arose from the second incident. 3. Mr Halligan, counsel for the respondent, informed the Court that the matters in issue were: firstly, all the injuries sustained in any incident; secondly, the causal nexus between the applicant's present condition, his incapacity, his impairments with any incident at work; thirdly, the fact and extent of any incapacity, impairment or loss; and finally, the application of the provisions of s 9A, particularly to the allegation of psychiatric injury or functional overlay. 4. Dandanchli is married. His wife is presently unemployed, though she was working for the same employer as the applicant until last year. She worked full time in the factory. Together they have four children, all at school. He came to Australia in 1988, and commenced his work with the respondent sometime in 1996 or 1997. He was employed as a cleaner, though from time to time he did some packing. 5. On 29 August 1998 a steel plastic door fell and hit the right side of the applicant's head. He said that he had experienced head and neck pain, that he had lost consciousness, that he was away from work for several days, and that he had consulted Dr Swid, who referred him to Dr Beran. He continued to work, though he said he was still suffering pain. 6. On 17 October 1998, when Dandanchli slipped on a floor which was covered with water and oil, he began to experience back pain which radiated into his legs, into the left more than the right. He also felt pain in the shoulders and arms. Again he consulted his general practitioner, was away from work for a number of days, and returned on light duties. Gradually he built up again to normal work. 7. On 14 November 1998, he was polishing a floor at work when he slipped and fell onto his back. He said that he had hit his head, shoulder and back, that he had felt increased pain in all parts of his body. He had been driven by his wife to Liverpool Hospital where, he said, he had been in severe pain. 8. Dandanchli has not worked since this third incident and the problems have continued from November 1998 to the present. He complained of constant headache, of pain in the whole body since August 1998, and neck pain since that time. The shoulders, hands, back and leg pain have continued since the incident in October 1998. He complained of a loss of strength in the hands, of pain in the arms - mainly in the shoulder, the wrist and upper arm. He said that he also has problems with his left leg, which he tends to drag. 9. Dandanchli claims that he has been looking for work. He said that he has looked in coffee lounges, restaurants, mixed business and butcher shops for cleaning work. He claims that he is seriously looking for employment and that he would try to work if a job was offered. He said that he had begun looking several months after the incident of November 1998, perhaps four or five months afterwards, that he has felt frustrated staying at home and that he has often thought of taking his own life. The last application for work was in cake shops and take-away food outlets at Bonnyrigg or Fairfield West, though he could not remember the names of the people he had approached. 10. The applicant said that he had never consulted a psychiatrist, but then thought that maybe he had not understood the question, and agreed that he had been referred to Dr Karima after the incident. This is referred to in the notes of Dr Swid. 11. The applicant complained of constant dizziness since August 1998. Exhibit 1 is the report of Dr Lorenzt, dated 14 August 1995, that is some three years before any incident at work. Dr Lorenzt is a consultant neurologist. The report records that his patient had complained of headaches and fatigue for the previous five or seven years. The headaches occurred on a daily basis. When the applicant was confronted with this report, he denied that he had had daily headaches before August 1998, and also denied that he had complained to the doctor of tiredness, weakness and stiffness in his limbs. Dr Lorenzt considered that the headaches and the feeling of tiredness were probably an expression of depression and that he was suffering tension headaches. 12. Dandanchli has been subjected to a barrage of investigative procedures, both before and after any incident with the respondent. Exhibit 2, for example, is a report of an x-ray and CAT scan of the lumbar spine exposed in May 1992 which showed no significant abnormality, and in particular there was no apophyseal joint disease, pars defect or disc protrusion noted, though, of course, such an investigation would not have been conducted without some complaint being made or some reason being offered. Exhibit 3 is a cerebral CT scan report which was conducted in June 1995. 13. Then in September 1998, a CT scan of the brain was carried out, together with a cervical examination. The report of this investigation is Exhibit F and recorded no significant uncontrovertible joint disease in the cervical spine, no pre-cervical soft-tissue swelling, fracture or dislocation. The vertebral alignment was normal. The disc heights were normal at all levels, with minor degenerative changes. There was no evidence of any clavicular fracture in the cranium, and nothing of any significance revealed by the CT scan of the brain. No intra-cranial complication was detected. Clearly, this was an examination which was meant to determine whether there was any physical, pathological reason for complaint of headaches. 14. The results of a lumbar CT scan, undertaken in October 1998 are Exhibit G. The report discloses that the spinal canal was of normal dimensions and that no paraspinal abnormalities were detected. The discs were intact, with no bulging into the spinal canal nor any obvious encroachment of the neural foramina. There were some early degenerative changes at the L5-S1 facet joint, bilaterally, but no other bone or joint abnormality was detected. 15. In March 1999, at the request of Dr Marnie, a whole body bone study was carried out (Exhibit E). Dr Dickenson concluded that there was no scan evidence for a significant region of skeletal trauma. There were degenerative changes in several joints, including the shoulders, the sternoclavicular and the first costochondral joints, the hips, the right knee and foot - degenerative changes in all these areas. There was a moderately active synovitis in the left knee, probable minor degenerative pathology in the medial and lateral compartments, and some mild facet joint arthropathy throughout the lumbar spine. 16. Exhibit C contains the results of a motor nerve conduction study. This was carried out in May 1999. The upper limb nerve conduction studies and the EMG examination were within normal limits. There was no electrical evidence of medial neuropathy at either wrist, or cervical radiculopathy. 17. Finally, Exhibit D is a report of a MRI study of the lumbar spine from June 1999. It discloses diffuse disc bulging of the L4/5 disc, but no actual focal protrusion of disc material within the disc, and no displacement of the nerve root. It concluded that there was degenerative disc bulging at the L4/5 disc, but no displacement. At the same time, an MRI study was made of the cervical spine which disclosed no abnormality. 18. As some doctors observed, (and I have already commented) Dandanchli has been subjected to a vast array of investigative procedures. 19. Dr Swid's report of November 1998 and his obscure handwritten notes are Exhibit H. In his report of November 1998 he detailed the incident in August 1998, and his notes disclose, inter alia, that on 17 July 1998, some few weeks before the first incident, the applicant had attended complaining of low back pain for a period of three days. The notes also disclose that the applicant was drowsy with headaches in August 1997, headaches again in April 1997, recurrent nasal infection in January 1997 - all pre-dating any problem with the respondent. 20. Dr Swid referred his patient to Dr Lee (Exhibit J). He recorded a history of an incident in October 1998, and in November 1998. He reported that an x-ray and CAT scan mainly showed facet joint degeneration, and concluded that his patient had arthritis in the back and which had been aggravated as described. 21. Dr Swid also referred the applicant to a neurologist, Dr Beran (Exhibit L). In his first report of October 1998 he recorded that he had examined Dandanchli on 15 October 1998, when he had told him that he was a cleaner and had had a work-related incident, but he was 100 per cent adamant that today's consultation had nothing to do with any medico-legal matter and would not be related to a compensation issue. 22. Dr Beran reviewed the applicant on 3 December 1998: I was somewhat shocked to get a letter from a lawyer asking for a report when Mounir told me categorically at the first visit that nothing that I was seeing him for had any medico-legal consideration whatsoever. 23. Dr Beran examined his patient for a medico-legal consultation on 16 December 1998 and produced the lengthy report of 17 December in which he detailed the history of incidents and the various reviews until the time of the report. Dr Beran reviewed him again on 20 May 1999 when he was told that the applicant was very bad. Dr Beran said that he was worried about Mounir (the applicant). He could see him ending up with a frozen shoulder and a persistent stiff neck because he is not giving a full commitment. He is giving way to what is painful and I have no doubt that he does have pain but he does not move with it. 24. A review occurred again on 27 July 1999: Mounir says that when he gets into sunlight his pain gets worse. I have a great deal of difficulty in comprehending how sunlight could exacerbate a purely organic muscular problem. 25. When Dr Beran asked him to move his head, the applicant indicated that he could only move it through approximately a 5 degree range of movement. The doctor observed that this was totally out of proportion to anything he had had in the past. 26. In his report of 29 September 1999, Dr Beran observed that there was a great deal of functional overlay during the physical examination which caused him serious concern because until he (the doctor) could get over this, he could not see how he could give his patient the relief that he needed. He described his responses as very histrionic. He detailed that he asked the applicant to sit on the bunk, with hips fixed at 90 degrees without requiring flexion of the knees, and that he could do this without too much difficulty. But again there had been a marked histrionic component to his behaviour: Despite the fact that he could sit on the bunk with hips flexed to 90 degrees without requiring any flexion of the knee, when I tried to do straight leg-raising, if I got past approximately 45 degrees he would cry and say he could not cope with it. Knee and ankle jerk reflexes were quite brisk and plantar responses were downgoing. 27. Dr Beran attempted to test the applicant's neck movement. He said he could not avoid the impression of histrionics superimposed on clinical findings. He said there had been an obvious, volitional obstruction to lateral flexion. He did not accept that Dandanchli was giving his true maximal effort. The doctor was puzzled and perplexed since he was the treating neurologist. He observed that he was extremely concerned that he might be biased against the patient because he had been unable to find anything of any significance. He did not wish to diagnose that his condition was functional rather than organic without further tests. (which he conducted). When reviewed on 9 November 1999, Dr Beran recorded that his patient had been referred to Dr Hugh Dixon and that he made some comment about the quality of the consultation. 28. In his report of 22 December 1999, Dr Beran recorded that his patient was talking about a dysfunctional left upper arm, pain in the left side of his head, and numb teeth. The doctor could find no weakness of the abduction of the shoulders or of the bi-cep movement. While getting the applicant to put his chin on his chest, he became quite histrionic. However, with gentle pressure to the occipital region, Dr Beran could get the neck to move quite significantly further than the applicant was able to do himself. The doctor observed that all upper limb reflexes were well preserved. This was a pointer against there being any organic, neuropathetic process in play. In general, the treating neurologist, Dr Beran, was very sympathetic and attentive but in the end, he could not find any basis for the histrionic complaints. 29. Dr Dixon began treating the applicant on 23 September 1999. His report is Exhibit K. Dandanchli complained to him that his main problem' were in his neck and the head pain. On examination, straight leg-raising was limited to 45 degrees, bilaterally. Movement of the neck showed minimal movement on testing, but more movement appeared when he was distracted, according to the doctor. There was a great deal of pain behaviour present during the examination. The doctor diagnosed some chronic pain syndrome, but on review in February 2000 he observed that the features were most consistent with anxiety, depression and tension headaches. 30. The clinical notes of Fairfield Hospital are Exhibit A. The applicant attended there in April 1999. A full physical examination was reported. The neuro-surgeon recorded that while he was doing his neurological consultations, he was advised that a patient had been admitted who required neurological examination: I have seen this patient re pain and he has compensation outstanding. Should you wish material from my files, same can be provided - (telephone number). My initial feeling when seeing him was that there was a significant functional overlay clouding the picture, compounded by issues of compensation. Nevertheless, for completeness sake I advocated MRI but he has not had same. 31. Dr Marnie began examining Dandanchli in March 1999. His reports are Exhibit B. Under the rubric past health, the doctor recorded there was no history of any accident or serious illness other than the injuries detailed as 28 September 1998 (should be August), 17 October 1998 and 14 November 1998. Dr Marnie (according to his usual practice) continued to review the applicant on a large number of occasions and concluded: Mr Dandanchli gave a history of sustaining a head injury. He had symptoms referable to a cervical strain in association with degenerative changes, with nerve root irritation affecting the upper limbs. 32. The doctor considered that the headaches and the pain behind the eyes were mostly referred from the neck as well as from a post- concussional influence. The patient also had symptoms referable to a thoracic lumbar back strain in association with degenerative changes, with nerve root irritation affecting the lower limbs. There was also evidence of a degenerative disc bulge at the L4/5 level. My reading of the reports would suggest that there was no nerve root irritation affecting either limbs. I note the doctor annexed to his report a neuro-physiological study from 10 March 2000 which disclosed that the findings were within normal limits. 33. The doctor made a series of assessments of losses and impairments: a neck impairment of 12 per cent; the back of 20 per cent; the right arm of 10 per cent; left arm of 15 per cent; the right leg of 7 per cent; and the left leg of 7 per cent. 34. Dr Potter, a rheumatologist, examined the applicant on behalf of the respondent on 25 May 2000 and he observed that there were three themes running through the consultation. He said he was presented with a history of chronic widespread pain which in no way fulfilled any possible anatomical mechanism or known musculoskeletal pathology, or could be explained by any structural or physical cause. Secondly, he was presented with clinical results so grossly discrepant with multiple Wardel signs that the only two explanations would be contrivance, or multiple somatic features of underlying motivational behavioural mood change. Thirdly, all investigations were normal for age. He observed that there was an excessive number of tests, a cascade of unnecessary investigations of no benefit at all to the patient. 35. He reported also that on examination, the applicant had asked his wife to undress and dress him because he was unable to perform this task. He observed that the applicant had presented as remarkably weak, that all movements were performed with much sighing, grimacing and intermittent over-breathing. The doctor diagnosed a collection of physical signs for which there was no possible anatomical cause and concluded that the applicant had presented as a florid example of marked clinical inconsistency. He assessed nil losses and impairments. 36. Dr Gonsky (Exhibit 4) examined Dandanchli on 16 May 2000. He denied previous illnesses, accidents or operations. Straight leg-raising was suggested to be 30 degrees on each side, with shouts as well as wincing: But he had the same response with the knee when the knee was bent, and conversely could sit up with either leg fully raised. This vital test suggested to me that there is no organic lesion and the responses were non-organic. 37. From a clinical point of view, Dr Gonsky thought, there was no problem. There was a great amount of histrionic, and perhaps even hysterical responses. He also assessed a nil losses and impairments. 38. Finally, Dr Giblin was qualified to examine the applicant in July 2000, on behalf of the applicant himself. He recorded that there had been no history of this or any similar problem. When he examined Dandanchli, there was virtually no range of cervical movement but, when passively examined, it had improved by at least 50 per cent. Dr Giblin remarked that on one occasion the patient had been able to make a quick, sudden neck movement without any discomfort. The lumbar spine was examined, but only after the applicant's wife had removed his shoes. He moved awkwardly but, according to Dr Giblin, quite intentionally. When asked to walk on his heels and toes, he did so with discomfort, verbalising and holding the side of his back. Straight leg-raising was 90 degrees bilaterally while sitting, and 10 degrees while lying. When trying to flex his hips and knees together, there had been quite marked active resistance, according to Dr Giblin. Despite this, the doctor had no doubt that the various accidents had caused soft-tissue injury to both the cervical and lumbar areas, though there was an enormous amount of anxiety surrounding the situation. 39. The applicant comes to Court with a puzzling lack of support from his own doctors. Dr Giblin's uncharacteristic remarks about the applicant's suspicious behaviour are to be found in his reports, and Dr Beran also was restrained in any support he offered to the applicant. Despite the histories provided, the applicant had suffered prior problems. Dr Lorenzt recorded a history of headaches of five or six years before 1995. Dr Swid also refers to headaches in August 1997, and to back problems for three days in July 1998. 40. Despite these records, the doctors were given a history that there had been no relevant prior history. Dr Giblin recorded this, and Dr Marnie and Dr Gonsky. This was not true, and the assumption which Dr Marnie and Dr Giblin make that there was no prior history, of course, compromises any opinion they might make about causation. Furthermore, I note there is no report from any psychiatrist or psychologist to establish a link between the applicant's apparent functional condition and any injury he might have sustained at work. He has been receiving treatment from a psychiatrist, Dr Karima, at least between March and November 2000, as can be seen from Exhibit H. There is no report to suggest any causal connection, or to establish a diagnosis of a psychiatric condition. 41. I was informed at the beginning of this hearing that there was a real question as to whether the injuries as alleged amount to a substantial factor contributing to his condition. I note that he was depressed before the work incidents and had been treated for this problem. Dr Lorentz refers to this. And yet there was no evidence before me that the three incidents, or any one of them, contributed in any substantial way to his present psychological condition. It was put in issue and not dealt with. The applicant had some onus to establish that there was a connection, by way of substantial contributing factor, between one, or all, or some of the three incidents as pleaded and the applicant's present psychological condition. That was not established. 42. Furthermore, the neurologist treating the applicant, Dr Beran, was told categorically that the problems for which he was being consulted had nothing to do with his work. That doctor formed the opinion that there was a serious exaggeration, perhaps even fabrication of symptoms, and finally when testing for the sciatic responses on 29 September 1999 (Exhibit L), he identified inconsistent responses. 43. I have formed the opinion that the applicant's evidence cannot be accepted, that he is an untrustworthy witness, and that he has not proved his case. I accept that he sustained minor injuries on three occasions, but it seems to me that the injuries were of only temporary duration, and that since that time, the applicant has fabricated his symptoms with a view to compensation. The most significant injury occurred on October 1998. After that the applicant had had a few days off and returned to work. It is on this incident which he focuses as the cause of most of his problems. It seems to me that for some time after this incident, Dandanchli did have some problems, but there is no objective evidence of any continuing impairment or loss. Since I find the applicant's evidence so untrustworthy, he has not satisfied me, on the balance of probability, that the sequelae of the injuries he sustained have continued. 44. I enter an award for the respondent. Mr J H Pearce instructed by Cameron Gillingham & Boyd appeared for the applicant Mr H J Halligan instructed by Nevill & Edwards appeared for the respondent