Bisucci v Gtewpm Pty Ltd and VWA
[2011] VCC 977
•18 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04591
| ANGELA BISUCCI | Plaintiff |
| v | |
| GTEWPM PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 4 May 2011 |
| DATE OF JUDGMENT: | 18 May 2011 |
| CASE MAY BE CITED AS: | Bisucci v GTEWPM Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 977 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION –– serious injury application – s.134AB Accident Compensation Act 1985 – application under paragraphs (a) and (c) of definition of “serious injury” – relevance of histories given to examining doctors – grant of leave for recovery of damages for pain and suffering follows grant of leave for loss of earning capacity – no causal connection between permanent severe mental disorder and employment – Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 – Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 – Mobilio v Balliotis and Ors [1998] 3 VR 833 – Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 – Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn |
| Mr D J N Purcell | ||
| For the Defendants | Mr P R Trigar | Lander & Rogers |
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a comminuted intra- articular fracture of the right distal radius suffered by the plaintiff in the course of her employment with the first defendant on 5 April 2006 (“the injury”). On that day, the plaintiff slipped and landed heavily at the first defendant’s factory in Thomastown (“the accident”).
2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.
3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function . . . (c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The body function relied upon by the plaintiff for the purpose of paragraph (a) is her right arm.
5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity so far as the claim under paragraph (a) is concerned. With respect to the claim under paragraph (c), the plaintiff only seeks leave to bring proceedings in relation to consequences with respect to pain and suffering.
6 Section 134AB(38)(j) of the Act requires me to assess whether, at the present time, the plaintiff has a serious injury.
The Issues
7 It is not in issue that the accident occurred. What is in issue is the present extent of both the physical consequences and the psychological or psychiatric consequences of the injury. Thus this is a “range” case.
The Plaintiff’s Evidence
8 The plaintiff relied upon an affidavit sworn by her on 14 May 2009 and also gave viva voce evidence. She was born on 4 January 1951 in Italy and is thus now aged sixty. She migrated to Australia at aged four. She left school at primary level and then worked on the family farm for fourteen years before marrying and coming to Melbourne. She has a twenty-six-year-old daughter and a thirty-one-year-old son. In Melbourne, she worked in the clothing trade before running a restaurant in partnership with her husband for eleven years. She stated that she worked behind the bar, making coffee, pouring drinks, washing up, answering the telephone and operating the till and credit card machine. The restaurant was sold in July 2003. She was then unemployed until September 2005, when she commenced work with the first defendant as a packer at its cheese factory in Thomastown. She was employed on a casual basis, working around eighteen hours per week, and was hoping to obtain full-time employment there.
9 Following the accident, she had surgery at the Northern Hospital by way of open reduction and internal fixation of the fractured right wrist.
10 Following discharge from the Northern Hospital, she attended her general practitioner, Dr P Pannuzzo, and has been seeing him fairly regularly since, although in a report of 25 March 2010, he states that he had not seen the plaintiff for six months. His clinical notes show that he saw the plaintiff on 22 September 2009 and not again until 6 April 2010. When she attended Dr Pannuzzo, she used a TENS machine on her right wrist. She also underwent physiotherapy. She wears a wrist brace from time to time. She states that she has constant pain in her right wrist which is exacerbated by use and cold weather. At times the pain wakens her from sleep. She is restricted in dressing, in domestic activities and has trouble gripping with her right dominant hand. She is restricted in lifting with her right hand.
11 It is her opinion that she could not perform work that required repetitive lifting or gripping with her right hand. From February 2007 until October 2007, she attended a psychologist, Khorshed Khisty. Between April and June 2008, she undertook a pain management program with the Dorset Rehabilitation Hospital.
12 In August 2009, the plaintiff’s mental condition was deteriorating. The Crisis Assessment and Treatment Team (“CAT Team”) from The Royal Melbourne Hospital became involved and she was hospitalised. In January 2010, she underwent Electro Convulsive Therapy (ECT) treatment at a facility of North Western Mental Health in Broadmeadows. She was hospitalised for two weeks and underwent the treatment every second day.
13 She has not worked since the accident.
14 In June 2007, she commenced a retail course at Mission Australia in Sunshine. She did not cope with this course, had panic attacks, and did not complete it.
15 Presently she takes Panadol and Panadeine for the pain in her wrist. She was prescribed stronger medication but this caused constipation. She also rubs creams into her wrist. For her mental condition, she takes Paroxetine, which is a new anti-depressant. She is on 12 milligrams a day.
Medical and Like Evidence
Treaters
16 In his report dated 25 March 2010, Dr Pannuzzo states that the fracture has healed, that the plaintiff’s residual pain has improved and that the grip strength in her right hand is nearly the same as the grip strength in her left hand. It was his opinion that she could return to full-time employment provided that this did not entail repetitive gripping or pulling movements with her right hand, and subject to “her education, training, experience and physical strength”.
17 So far as the plaintiff’s mental state is concerned, this is not referred to by Dr Pannuzzo in his reports which were tendered on the hearing. However, his clinical notes were provided under subpoena. An entry for 8 July 2008 states:
“Stressed because daughter of twenty-five years away in Europe with a
man, leading to insomnia, requesting Temazepam.”
18 An entry for 18 February 2009 states:
“… agitated, WorkCare issues and stepsister’s and stepmother’s house.”
19 An entry for 11 May 2009 states:
“Mental state much better but still complaining of insomnia and early am
awakening.”
20 An entry of 2 June 2009 states:
“Melancholy … She has had an ‘emotional breakdown’ related family issues, i.e. daughter. Daughter twenty six year old getting married to father of child. Patient concerned about embarrassment in her community.”
(sic)
21 An entry of 16 June 2009 states that she is still suffering from melancholy.
22 An entry of 19 August 2009 states that she is suffering from anxiety and depression and had been an inpatient at The Royal Melbourne Hospital between 14 August 2009 and 17 August 2009.
23 An entry of 2 September 2009 states that the plaintiff appears to be deteriorating and was more agitated, and that her husband was to be in contact with the CAT Team on the following day.
24 An entry for 22 September 2009 states that the plaintiff is:
“Looking much better. Less agitated. Sleeping better.”
25 An entry for 14 September 2010 states:
“Patient been more anxious lately because of numerous background
stressors. On examination, looks well.”
26 An entry for 9 November 2010 states:
“Mental state good.”
27 An entry for 16 November 2010 states:
“Mental state – in good spirits.”
28 The admission notes of the Psychiatric Assessment and Planning Unit at The Royal Melbourne Hospital dated 15 August 2009 state, with respect to the plaintiff:
“… Her husband reported a one week history of Angela having poor concentration, increased anxiety, poor oral intake, low mood, guilty ruminations on past events (being given money by her step-mother whilst other siblings did not receive any money), loss of pleasure in things. …
This occurred on a background of increasing generalised anxiety and poor sleep since a workplace accident three years ago when Angela injured her arm and several recent stressors (financial strain, daughter pregnant out of wedlock). Recently, Angela has also been experiencing
approximately 3 episodes a week of increased anxiety lasting 3mins
associated with shortness of breath and palpitations. These episodesspontaneously resolved. … .
…
… There was no formal thought disorder and the thought content was depressive in nature: guilt, anhedonia, preoccupation with family’s financial worries (which exist, but the patient may be over-stating these). There was some suggestion of persecutory ideation about brother and sister talking about her and the money she had received from her stepmother. These thoughts did not appear to be fixed false beliefs.”
(my emphasis).
29 Dr Dev Rudolph, consultant psychiatrist, from North Western Mental Health, states, in a letter to Dr Pannuzzo of 28 August 2009:
“I have been quite concerned about her presentation which is one of mild psycho-motor retardation, a painfully depressed affect, monotonous speech with significant latency before answering questions, prominent feelings of worthlessness, overvalued ideas of poverty and being viewed negatively by wider social network, and feelings she would prefer not to go on (but no active suicidal thoughts).”
(my emphasis).
30 Khorshed Khisty, a psychologist, in a report of 5 December 2007, stated that the plaintiff consulted him at the suggestion of the second defendant. He saw the plaintiff on twenty three occasions between 2 February 2007 and 29 October 2007. In the report, he states that the plaintiff –
“has never had a psychiatric condition or illness.
…
Angela’s pain experience from her physical injury and its distressing and stressful pain has led to states of anxiety and depression as it always does in all those who suffer any ongoing physical pain.”
(my emphasis).
31 Dr Lanka Cooray, a consultant psychiatrist, first saw the plaintiff on 2 October 2009 and has been seeing her every three or four weeks since for medication, review and counselling. She confirmed that 12 milligrams a day of Paroxetine which the plaintiff takes daily was a high dosage. She stated that on first seeing the plaintiff on 2 October 2009:
“The presenting history was that her mood was very low, she had very poor appetite and she was losing her weight, lacking concentration and poor energy, no motivation and interest in doing things. There were suicidal thoughts on and off, but there were no plans at that point in time.”
32 The plaintiff was referred to her by the CAT Team at North Western Mental Health.
33 She has provided two reports, dated 15 January 2010 and 6 August 2010, and also gave viva voce evidence. She assessed the plaintiff as suffering from a Major Depressive Disorder. In her report of 15 January 2010, she states:
“… There were many losses in her life over the years, which may make
her more vulnerable to develop depression.
The current financial stressors, stressors relating to her children and her medical illnesses may maintain her depression.
… Considering the fact that she has no past history of depressive illness, and the current depressive illness is closely associated with the work related issues, it is fair to assume that her current depression was caused by work related incidents and the consequences following these events (i.e. financial strains).
…
Considering her current ongoing depressive state, she would not be able to do any type of work at present. However she can get better with antidepressants she is on at the present. …
…
The prognosis is expected to be good with [the] current medication regime. … .”
34 In her report of 6 August 2010, she states:
“She has improved with given medication as well as Electro Convulsive
Therapy that was given as an in-patient. …
…
Her prognosis relating to her depressive illness is good with given treatment. … .”
35 Dr Cooray stated that if the plaintiff ceased taking her medication and discontinued the psychotherapy routine with her, there was “a high possibility” that she might become depressed again, and that this prognosis was long- term.
36 She was cross-examined upon a letter she wrote on 16 November 2009 to Dr Rudolph, in which she stated:
“Her depression is largely maintained by her ongoing financial difficulties
and problems relating to her daughter’s upcoming court case.”
37 She stated that the reference should probably have been to the daughter’s pregnancy. Incidentally, the daughter married the father of her child on 25 July 2009. The plaintiff stated that she was happy about this. Dr Cooray was cross-examined as to why there was no reference to the injury as being the cause of her mental condition. Her response was:
“… All this has started with a mild form of stress reaction soon after the work injury. It has been building up. They are the sort of stressors that she had later on. She probably would have been managed well if she doesn’t have the WorkCover issues in the background.”
(sic)
38 Katrine Green, psychologist, assessed the plaintiff on 13 September 2010 and subsequently provided a report to the plaintiff’s solicitors. In the report, she states:
“… due to Ms Angela Bisucci’s current physical capacity she is unable to perform the inherent duties of her previous occupation or the inherent duties of any suitable employment.”
(my emphasis).
Medico-Legal Examinations
39 At the outset, I note that the defendants do not rely upon any recent medical reports and that those they have tendered are from three years ago or more.
40 Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 7 July 2010. In a report dated 30 July 2010 to the plaintiff’s solicitors, she states:
“Taking into account her previous occupational experience, her age, her education, the nature of the condition I believe that Ms Bisucci has no capacity for any occupation as a result of the work related injury.
I note the report of Ayres Management Services and Workstreams during the course of the occupational rehabilitation process where occupations of Product Examiner, Hand Packer, packager or container filler, Registry or Filing Clerk, Sales Assistant were proposed as suitable jobs.
I believe that Ms Bisucci has no capacity for these occupations as they all involve intensely manual handling or manual manipulative duties without respite.
I believe that Ms Bisucci could not fulfill the requirements of any of these occupations to enable her to retain employment by reaching sufficient performance standards because of the persisting symptoms related to her work related injury.
Her limited education to Form 8 level also provides difficulty for her in retraining to work providing autonomy and ability to self pace.
It is my conclusion therefore that Ms Bisucci is unfit for employment
currently and indefinitely as a result of the work related injury.
The prognosis is poor and there is an increased likelihood of development of osteoarthritis in the right wrist joint as a result of the work related injury where the fracture involved the joint.
… .”
(my emphasis).
41 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 15 March 2011 and has provided a report to her solicitors dated 16 March 2011. He states that he assessed the plaintiff’s grip strength with a Jamar dynamometer. The plaintiff had a grip strength of twelve kilograms with her dominant right hand as opposed to eighteen kilograms with her left hand. He states:
“Your client is permanently incapacitated for pre-injury employment which involved frequent lifting of cheese. … She partly completed a retail sales course. She has no computer skills. She is 60 years of age and I do not believe she will be able to find suitable employment in the future.
She has a theoretical capacity for light office based employment but without computer skills or past work experience she will not be able to obtain this employment.
…
The incapacity for work as described above is permanent.
…
Her prognosis is for the condition to persist as described in this report with no prospect of improvement. She has suffered an intra articular fracture which has been well reduced. Nevertheless, this type of injury carries an increased risk of development post-traumatic osteoarthritis in later life. The risk in this case is probably small as the fracture was said to have been reduced anatomically. … .”
(my emphasis).
42 Mr Murray Stapleton, a plastic and hand surgeon, examined the plaintiff on 19 April 2011. In a report to her solicitors of that date, he states:
“This lady’s right wrist, she being a factory and manual worker when she was employed, is such that she will not return to work. She has to avoid many activities at home because of the wrist joint pain and lack of grip power.
I believe her incapacity for work is now permanent.
The prognosis is unclear in that with fractures that impact on the wrist joint, in the future, give rise to increasing osteoarthritis which will contribute to her increasing discomfort and lack of the wrist joint movement should that take place.”
(my emphasis).
43 Mr Michael Troy, a surgeon specialising in occupational and musculoskeletal medicine, examined the plaintiff for the defendants on 15 January 2008 and 13 May 2008. In a report dated 17 May 2008, he states:
“She has a painful thumb with some restriction of movement of the joints
of that particular right thumb.
…
There is no neurological dysfunction, there is no sensory loss, she complains of symptoms of pain which were not produced at this examination.”
44 Dr Mary Wyatt, occupational physician, examined the plaintiff for the defendants on 29 February 2008. In a report dated 2 March 2008, she states:
“Ms Bisucci sustained a significant fracture to her right wrist in the fall in April 2006. The fracture was a comminuted fracture of the right distal radius, and this extended into the joint margin. At this stage Ms Bisucci has reasonably good function, but has difficulty doing any heavy lifting or forceful activity with the right arm.
…
Ms Bisucci is fit for a range of duties that do not require repeated forceful grasping with the right wrist, heavy lifting with the right arm, and highly repetitive activities with the right arm.
Most of the duties listed in the vocational assessment are appropriate. The product examiner duties are reasonable, as is registry, filing clerk or retail sales assistant. Hand packer, packaging and container filler jobs typically require repetitive hand activities and would not seem suitable for Ms Bisucci’s hand problem.
Noting Ms Bisucci’s long history of owning and running a restaurant, work in the environment would seem the most suitable. Operating a cash register in a café or restaurant environment would be sensible, and would seem the most likely to suit Ms Bisucci’s previous background experience. That type of work would not require her to do further training.
…
Serving in a takeaway food outlet such as a chicken shop would also be
the type of work suitable for Ms Bisucci. …
…
“Ms Bisucci is not fit for her pre-injury tasks, which required regular andrepetitive upper limb work and intermittent significant lifting.”
“… Finding a job at Ms Bisucci’s age with an injury can be challenging.”
(my emphasis).
45 Dr Timothy Entwisle, consultant psychiatrist, examined the plaintiff on 18 July 2007. In a report to the defendants dated 24 July 2007, he expresses a view that the plaintiff does not present with a psychiatric condition.
46 He saw the plaintiff again on 12 March 2008. In a report of 26 March 2008, he stated that the plaintiff was suffering “from a mild Adjustment Disorder with Anxiety”.
47 Dr Norman Rose, psychiatrist, examined the plaintiff on 8 May 2008. In a report of that date, he states that the plaintiff is suffering from “a mild Adjustment Disorder with Depressed Mood”. He states that the disorder is so mild that it does not require treatment other than seeing a psychologist occasionally.
Discussion and Conclusions
Paragraph (a)
48 There is strong medical evidence to support the view that the plaintiff has no capacity for any form of employment on account of the physical consequences of her injury – see the opinions of Dr Sutcliffe, Mr Rodney Simm, Mr Murray Stapleton and Ms Katrine Green and, to some extent, the opinions of Dr Wyatt and Dr Pannuzzo. There is no medical evidence produced by the defendants to contradict this. Mr Troy, as appears, was more concerned with the extent of impairment rather than capacity for employment.
49 The plaintiff’s claim under paragraph (a) for loss of earning capacity depends upon her “capacity for suitable employment after the injury” – see s.138AB(38)(g). Mr Mighell, who with Mr Purcell appeared on behalf of the plaintiff, relied upon the definition of “suitable employment” contained in s.5 of the Act and particularly, sub-paragraph (a)(iii) – “the worker’s age, education, skills and work experience”; and (vi) – “any occupational rehabilitation services that … have been provided to or for the worker”. He referred to the failed attempt at the retail course.
50 Reference was made to the plaintiff’s education level, the fact that she had never been employed in an office, or done clerical work, in retail or bookkeeping, the fact that she had attempted a retail training course after the accident but was unable to complete the academic aspects of the course and suffering panic attacks, and that she was computer illiterate.
51 Mr Trigar, who appeared for the defendants, sought to rely upon discrepancies in histories as recorded by medico-legal examiners and the plaintiff’s evidence, and inconsistencies in the plaintiff’s evidence itself. Such histories, of course, need to be approached with some caution – see Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, at footnote 5, per Ashley JA.
52 The plaintiff impressed me as a witness who was endeavouring to tell the truth and not exaggerate. For example, she readily conceded that her depression had improved over the last twelve months.
53 Mr Trigar also relied upon video film of the plaintiff taken on 4 May 2010 in which she appeared to be going about her activities without favouring her right wrist. I agree with Mr Mighell’s submission that the video footage was not inconsistent with the plaintiff’s evidence as to the extent of the limitations of use of her right hand and arm.
54 Mr Trigar submitted that with the plaintiff’s considerable experience at working behind the bar in a restaurant, she could undertake work of this nature, looking after the till, pouring drinks and washing up. It would seem however that such work is not a realistic possibility given the strain this would put upon the plaintiff’s right wrist.
55 I conclude that the plaintiff at present has no working capacity and that this is permanent. There has clearly been a loss of earning capacity in excess of 40 per cent.
56 The plaintiff has clearly satisfied s.134AB(38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (c), so far as loss of earning capacity consequences are concerned.
57 Having so found, in accordance with Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph 63, I also find that the plaintiff has suffered a “serious injury” with respect to pain and suffering consequences.
58 These findings would be sufficient for me to give leave to the plaintiff to issue proceedings for the recovery of damages with respect to both pain and suffering and loss of earning capacity.
Paragraph (c)
59 For the sake of completeness, I deal with the application under paragraph (c) which is limited to consequences with respect to both pain and suffering only and not loss of earning capacity.
60 In Mobilio v Balliotis and Ors [1998] 3 VR 833, Brooking JA, at p.486, stated, in the context of a serious injury application under the Transport Accident Act 1986, that “severe” in the context of a serious injury is a stronger word than “serious”. The President, at pp.834-835, agreed with this approach, which is now enshrined in s.134AB(38)(d).
61 On the basis of the reports from Doctors Entwisle and Rose, clearly the plaintiff could not be regarded as having suffered “a permanent severe mental or permanent severe behavioural disturbance or disorder”. However, their opinions were expressed before the plaintiff’s mental health degenerated in the second half of 2009 and before she had an ECT in January 2010.
62 True it is, that the plaintiff’s mental state has now improved. This however was only after she has undergone ECT, is on a high daily dosage of medication and is seeing Dr Cooray regularly.
63 I note that in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, Dodds- Streeton JA, with whom the other four members of the Court agreed, stated, at paragraph 199:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
64 This comment is, in my view, equally applicable to a mental condition which requires daily medication.
65 On the basis of Dr Cooray’s evidence, in my view, the plaintiff has suffered “a permanent severe mental disorder”.
66 The real issue so far as paragraph (c) is concerned, is whether there is a causal link between the plaintiff’s present mental disorder and the injury.
67 There is, in my view, strong evidence from Mr Khisty and Doctors Entwisle and Rose that at, say, May 2008, more than two years after the accident, the plaintiff was far from suffering “a permanent severe mental … disorder”. There then arises the issue of the plaintiff’s daughter’s pregnancy and other family matters and financial concerns. These are referred to in Dr Pannuzzo’s clinical notes and the evidence of Dr Cooray. Dr Cooray sought to relate the plaintiff’s present mental state to the accident but her letter to Dr Rudolph of 16 November 2009 is, in my view, very telling. Under cross-examination, Dr Cooray, in my view, did not adequately explain her comment in this letter.
68 So far as causation is concerned, the plaintiff must be “entitled to compensation”, before she is entitled to bring an application pursuant to s.134AB of the Act – (See sub-section (1)). The words “entitled to compensation” are picked up in s.82(1) of the Act, which provides:
“If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
69 In Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141, the Court (Maxwell ACJ, Eames and Redlich JJA) stated, at paragraph 82:
“There is a single test to be applied under s 82(1) — the ‘arising out of’ test. The test raises a question of causation. In a case such as the present, the test is satisfied if it can be shown, on the balance of probabilities, that an injury to the worker was caused by an act or omission of the employer (including any servant or agent of the employer). This causation question is to be approached, like any other causation question, as a matter of common sense.”
70 Adopting this approach, the plaintiff has, in my view, failed to establish a causal link between the injury suffered in the accident and her present mental state.
71 The application under paragraph (c) thus fails.
Summary
72 So far as the application is based on paragraph (a), I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to both pain and suffering and loss of earning capacity.
73 The application, so far as it is based on paragraph (c), fails.
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