Boyd v Austin Health
[2010] VCC 1456
•8 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02815
| ANTHONY THOMAS BOYD | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 27, 28 and 29 September 2010 |
| DATE OF JUDGMENT: | 8 October 2010 |
| CASE MAY BE CITED AS: | Boyd v Austin Health |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1456 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti and | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony Lawyers |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 14 April 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (c), claiming he has suffered a permanent severe mental or permanent severe behavioural disorder.
4 The body function relied upon in the case is psychiatric impairment.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(vi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(viii) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied on two affidavits and was cross-examined. Mr Chow, psychiatric nurse swore an affidavit on 27 September 2010 and he was required for cross examination In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Plaintiff’s Evidence
6 The plaintiff is aged forty seven, having been born on 31 July 1963. He is married with two children.
7 Having completed secondary school and nursing training, the plaintiff commenced work in mid 1993 as a psychiatric nurse at Larundel Hospital.
8 During that employment the plaintiff suffered a back injury in relation to which he underwent a two-level fusion in September 1994. He also suffered depression as a result of this back injury and he was off work and took anti depressant medication for about three years thereafter.
9 The plaintiff still takes Panadeine Forte about once a year when he has a flare up of his back symptoms. He tries to stay as mobile as possible and his back is now “ok”.
10 In December 1997, the plaintiff attended Gippsland Psychiatric Services where he completed a graduate diploma in psychiatric nursing and he was also employed. The plaintiff’s contract with that employer was not renewed when the plaintiff advised of his back injury, as he was told he was no longer suited to work with that employer.
11 In April 1999, the plaintiff obtained work at Dandenong Hospital as a psychiatric nurse. He travelled three hours each day from his home in Moe to work nightshift.
12 One night in 1999, whilst coming home from work, the plaintiff went to sleep in his car and he was involved in a transport accident in which he injured his right arm and leg (“the transport accident”). He was off work for six weeks following that accident.
13 In May 2000, the plaintiff was assaulted by a patient at work (“the Dandenong assault”). Following the assault, the plaintiff had six months off work, during which time he received weekly payments.
14 The plaintiff was prescribed Prozac for probably about eight to twelve months after the Dandenong assault. He then obtained nursing work in Melbourne.
15 In cross-examination, the plaintiff denied he had problems with alcohol prior to the said date.
16 The plaintiff obtained employment with the defendant at the Austin Hospital in September 2001. He was employed as a registered nurse at Bunjil House to assist with the care of twenty five psychiatric patients. The plaintiff also worked at The Royal Melbourne Hospital. Prior to the said date the plaintiff was working from fifty five to sixty hours per week.
17 The plaintiff resigned from The Royal Melbourne Hospital in March 2006.
18 On 14 April 2006, whilst working nightshift with the defendant, the plaintiff was assaulted by a male patient who tried to scratch the plaintiff’s eyes out (“the incident”). Following the incident, the plaintiff held the male patient with the assistance of another patient for five minutes before security finally arrived.
19 After the incident, the plaintiff’s facial wounds were cleaned up and he continued working even though he was badly traumatised.
20 Whilst working over the next several weeks, the plaintiff was suffering significant fear. He could not eat or drink and was having flashbacks of the incident. At night he was being woken by images of the incident and he feared the consequences, had he not received assistance. He began vomiting and began to drink heavily.
21 The plaintiff was unable to cope with daily activities and dreaded going to work and made excuses why not to attend.
22 On 5 May 2006, after working a long shift, the plaintiff got home and drank to try and forget the incident. Thereafter, he worked a couple of shifts but he was depressed, sweating and distressed, and became withdrawn and was still having flashbacks, and was worried that any number of items at the hospital could be used as weapons against him and that he could have been killed in the incident.
23 The plaintiff worked a total about ten shifts with the defendant following the incident.
24 The plaintiff also did one day of nursing bank work at Box Hill Hospital on 2 June 2006 but he could not finish the day’s work because of the severe stress and trauma he was suffering.
25 In cross-examination, the plaintiff denied he was only working at the Austin Hospital as at the said date. He was still on nurse bank. He intended “to make hay whilst the sun shone”. He thought Dr Strauss had misconstrued his history, as the plaintiff was still on the books at Box Hill Hospital and Thomas Embling at the time of the incident.
26 The plaintiff’s plan was to fundamentally base himself at the Austin Hospital by doing special work in Bunjil, as well as working at other places like Box Hill Hospital and Thomas Embling, getting a strong clinical reputation and nursing experience in Melbourne. He intended to go back and do nurse bank work at The Royal Melbourne Hospital and to go down the path of working probably fifty five to sixty hours a week on a higher casual rate.
27 Ultimately the plaintiff was more inclined to become a full time employee at Thomas Embling and continue with the heavy amount of nurse bank work at the Austin Hospital.
28 In cross-examination, the plaintiff rejected the proposition that his work plan had changed in 2006. His plan “was set in stone”. At that stage he could have picked up the phone at any time and got nurse bank work.
29 Probably as at the said date the plaintiff had so much work on tap at the Austin Hospital, so he could pick and choose. There was unlimited special work on tap – namely, work as a psychiatric nurse in a general ward. That was probably why he was not doing nurse bank work at that time.
30 The money the plaintiff was earning pre-incident was “amazing – you made big money. The sky was the limit.” The plaintiff could make a week’s wage in two days at the Austin Hospital when there were quite regularly two or three specials going at one time, so you’d be knocking work back.
31 Had he not been injured, the plaintiff would have continued to work very, very similar extensive hours, earning a large income.
32 The plaintiff thought he still would have been working at Box Hill on the said date as he worked there for one day after the incident.
33 After the incident, the plaintiff found life very difficult in Melbourne and there was little in the way of support there. He was struggling. He felt like his whole world capitulated. He thought his nursing career was finished and “his whole world had fallen apart fundamentally”.
34 The plaintiff and his wife therefore made a conscious decision in late 2007 to move back to Albury/Wodonga, where he had family support, because he was “struggling big time in Melbourne”. Prior to the incident, the plaintiff had thought about a move to Albury/Wodonga periodically but never acted on it. He “theorised it but they never acted upon it.”
35 Prior to the incident, the plaintiff and his wife thought about a number of things but made no definitive decision. They also thought about moving to Ballarat at one stage. But following the incident “that expedited and clarified the whole situation”.
36 The plaintiff denied that his wife was unwell before the incident. Post incident, her illness “certainly added a bit of weight on his shoulders, so to speak.”
37 If he had not been injured in the incident, the plaintiff would have continued to work in a very similar pattern to Mr Chow. They fundamentally worked very similar hours and their shifts were “very much mirrored” and they used to do a lot of weekend nightshifts and specials. They both worked “some pretty colossal hours,” including double shifts.
38 The plaintiff explained that psychiatric nursing is the sort of work where you can work as hard as you want, or as little as you want. It is very much up to your discretion how much you earn as there is a shortage of psychiatric nurses.
39 The plaintiff confirmed the income figures set out in the schedule of income, the largest figures being from The Royal Melbourne Hospital, until he started full time work at the Austin Hospital in 2006.
40 The plaintiff explained that his earnings in the 2005/2006 financial year were not a true representation of his earnings, because he had resigned from The Royal Melbourne Hospital in March, and he had a significant loss of penalties. Had he worked that full year his income would have been up around $115,000 to $120,000.
41 After ceasing work with the defendant, the plaintiff had trauma counselling and was prescribed anti-depressants and anti-anxiety medication, with sleeping medication. He ruminated about the incident.
42 On moving to Wodonga, the plaintiff initially applied for a full time job at Wodonga Adult Mental Health but when his application was successful, he thought he could not cope with full time hours because of his mental state. When a part time .75 position became available the plaintiff commenced work.
43 The plaintiff also worked a few shifts at the Kerferd Unit at Wangaratta in about November 2008 when he was not doing more than the occasional shift at Wodonga. Collectively that work and the Wodonga job would not have exceeded twenty eight to thirty hours a week. In total he earned about $28,000 at the Kerferd Unit.
44 Whilst doing those twenty odd shifts at the Kerferd Unit, the plaintiff “had a bit of a close encounter” with a patient in Acute Inpatient Psychiatry. The plaintiff told Dr Cronin about this incident and was strongly advised by him to keep out of acute psychiatric nursing. The plaintiff explained that there is a world of difference between community nursing and acute psychiatric nursing.
45 Having initially worked about twenty eight hours per week with Wodonga Adult Mental Health, the plaintiff subsequently built up his hours up to 32 to 35 hours and sometimes 36 hours per week. The plaintiff cannot cope with working more than his present hours. He has tried to increase his hours but could not cope. These hours are his threshold- his “absolute limit.”
46 The plaintiff’s job involves working dayshifts in a community nursing role, case managing individual patients. His shift commences at 8.30 am and ends at 5.30 pm. The plaintiff currently routinely works four shifts per week and generally has Mondays off. He is paid $33 per hour and does not have the benefit of allowances or penalties he was paid in previous nursing jobs. He presently earns approximately $1,100 net per week, with WorkCover topping up his income by about $400 a fortnight.
47 In addition to case management duties, the plaintiff is also required to be on call for CAT duty to attend emergency situations at places such as the police cells. The plaintiff is paid $170 on call allowance.
48 When the plaintiff is on call from 5.00 pm to 8.00 am, on CAT duty, he cannot take medication and that is when he suffers very increased symptoms. He does not get any sleep and he has images all night of the incident and other various nightmares. He gets up, feels extremely agitated in the morning, unsettled and anxious. He therefore limits call work to once a week, because “it just throws [him] out too much”.
49 In re-examination, the plaintiff said he goes to work so heavily sedated he can hardly function until 11.00 am. He is physically and mentally exhausted after four shifts and he cannot work beyond that.
50 Early in the morning he is very groggy, very sedated and slurs his words. pattern. His wife has to wake him up quite vigorously. He finds it very difficult to meet his workload in the morning. He gets better in the afternoon as the sedation eases off, but first thing in the morning, he is very sluggish.
51 The plaintiff explained he could not get out of psychiatry altogether, “because what else could he do?” He is forty seven, he cannot do general nursing because he has a back injury, and he is very limited in regard to what he can do.
52 Had the plaintiff not suffered injury in the incident, he believes he would be earning about $130,000 gross per year. In the financial year ending 30 June 2010, he earned $72,291 gross.
Schedule of the Plaintiff’s Income
Gross Comparable
Year Ending Employer Employee’s
Earnings Earnings
30 June 2003 Australian Nursing Agency Pty Ltd $1,255.00
Vic Forensic Mental Health $353.00 Melbourne Health $61,895.00 Austin Health $4,242.00 Eastern Health $9,974.00 Total $77,719.00
30 June 2004 Australian Nursing Agency Pty Ltd $1,230.00
I C Forensic Mental Health $492.00 Melbourne Health $63,130.00 Austin Health $19,530.00 Eastern Health $17,292.00 Total $101,674.00
30 June 2005 Vic Forensic Mental Health $8,932.00
Melbourne Health $59,067.00 Austin Health $34,287.00 Eastern Health $16,569.00 Medi Health 2000 Pty Ltd $633.00 Total $119,488.00
30 June 2006 Vic Forensic Mental Health $10,461.00 Melbourne Health $43,709.00 Austin Health $49,425.00
Eastern Health $158.00
Total $103,753.00 $126,573.00
30 June 2007 Austin Health $53,050.00 $140,221.00 30 June 2008 Austin Health $52,037.00 $126,423.00 30 June 2009 Austin Health $21,588.00 Greater Southern Area Health $11,235.00 Service North East Health Wangaratta $11,879.00
Cambridge $3,064.00 Wodonga Regional Health Service $28,171.00 Total
$75,937.00 $131,145.00
30 June 2010 $72,291.00 $137,179.00
Present Symptoms
53 The plaintiff continues to suffer from depression. He still suffers nightmares when there is a “trigger”, although the nightmares have eased off since the incident. He has flashbacks, sweats, cannot sleep and wakes up with visions. These problems are still quite pronounced, still quite common, but less compared to shortly after the attack. They become more severe and disturbing without medication.
54 The plaintiff has high levels of agitation and anxiety. He is hypervigilant, especially with any confrontation. He has high levels of hyper-arousal and at times he is absolutely terrified. Those symptoms are still very, very pronounced and he modulates them with the amount of medication he takes. The Seroquel has sedating properties that help the plaintiff and the Alprazolam helps with his anxiety and agitation. If he knows he is going to be in a stressful situation, he self medicates to increase the level of sedation.
55 These symptoms remain at a constant level but have certainly diminished compared to shortly after the incident. The plaintiff thinks he is probably at a level “where it is really a day-to-day proposition.” He can have a few very good days and then he might have a trigger that will trigger off two nights of nightmares. He cannot sleep, so he self medicates with alcohol and then he feels totally deflated.
56 Such a trigger occurred late last year when the plaintiff suffered from severe psychiatric symptoms as a result of two patients being killed at the Thomas Embling Hospital, where the plaintiff was employed and had spent a lot of time with the killer, and also knew one of the patients. The plaintiff also suffered increased symptoms when a patient at his current job “arced up” and threw hot coffee over him.
57 Since the incident, the plaintiff has felt withdrawn and suffered weight loss, a feeling of isolation, despair, hopelessness, and had no interest in life and no motivation. The medication has helped him to some extent with his depression which is not as bad as it was in the time immediately after the incident.
58 Whilst he had initial suicidal thoughts, this is no longer the case. The plaintiff “just thinks he has a family, a wife, two children and his father battled through leukaemia, so the best he can do is battle with what he has.”
59 The plaintiff’s relationship with his wife has been adversely affected because of his moods, depression and alcohol consumption. His libido is no good at all.
Current Treatment
60 The plaintiff continues to see Dr Cronin, psychiatrist, about once every five or so weeks. Dr Cronin presently prescribes Seroquel, 200 milligrams at night; Avanza, 45 milligrams at night; Luvox, 300 milligrams at night. The plaintiff is also taking Alprazolam, an anti anxiety medication, 2 or 3 millilitres a day.
61 The plaintiff has indicated to Dr Cronin that he never wants to return back to how he was shortly after the incident. In cross-examination, the plaintiff explained that if he was taking 600 milligrams of Seroquel, he would not be able to function or work. The Seroquel causes involuntary muscle movement of the legs, for which the plaintiff has to take an anti parkinsonian medication, but not too frequently. Other side effects of his medication are blurred vision and weight gain.
62 The plaintiff wants to keep having treatment at the present level because he never wants to return to his situation shortly after the incident. He described it as “the darkest gloomiest place he had ever been in,” where he considered death an option at one stage.
63 The plaintiff also continues to see his psychologist, Robyne Slade, about every four or five weeks and will continue to see her because of the way he feels at the moment.
Activities
64 Because of his psychiatric condition, the plaintiff remains restricted in the performance of many domestic and recreational activities, including playing golf, spending time in the bush, bushwalking, camping and shooting. He has a much reduced interest in daily activities such as sport, tennis, football, and also in socialising. He does not socialise anywhere near the extent he used to as he no longer has the enthusiasm and desire to do so, plus the effects of the sedation impact heavily upon his ability to socialise.
65 In cross-examination, the plaintiff confirmed he was playing golf probably once a month before the incident, although he certainly had a restricted swing because of his back injury. He was also bushwalking and loved doing it. Keeping active and moving assisted the pain in his back.
66 The plaintiff’s wife has fully recovered and she is now working. They pretty much share the children’s care and he is involved with the school activities, although he deposed there were some restrictions in this regard.
67 The plaintiff recently enrolled in a suicide prevention course through Griffith University. However, after three weeks study he had to withdraw because of lack of energy, lack of ability to focus and because he could not concentrate sufficiently.
68 The plaintiff deposed he planned to obtain a motorbike licence and a motorbike, but with the medication he has been taking he has no hope of doing so.
The Plaintiff’s Lay Evidence
69 Mr Chow, psychiatric nurse, swore an affidavit on 27 September 2010. He was required to attend for cross-examination.
70 Mr Chow worked with the plaintiff for many years. They have similar qualifications, experience, held similar positions, and worked in the same area of nursing, and both worked a lot of shifts together in the past.
71 Mr Chow is classified as an RPN 2 Year 10 Psychiatric Nurse, having held that qualification for fifteen years.
72 For the last two years Mr Chow has worked as a permanent employee at the Albert Road Clinic, working forty hours a week on shift work. He receives penalty rates and shift allowances for working afternoon shifts, nightshifts, and working over weekends. Mr Chow is also casually employed with the Austin Hospital, where he does shift and weekend work and receives shift allowances and penalty rates.
73 On average he works at least six days a week as a psychiatric nurse, and at least eight hours per shift. Sometimes there is overtime, and sometimes he does two shifts in a day. Generally he works a quarter of his shifts in the morning, and half as afternoon shift, and one quarter of his shifts as nightshift, and regularly works some weekends.
74 Mr Chow could work more shifts if he wanted to, and there is plenty of agency work around. There are times when he is offered shifts and knocks them back because he does not want to work.
75 Mr Chow’s hourly rate for his permanent employment is $30.50. In his casual employment the normal rate is $38.00 an hour. He receives $23 per shift allowance for working afternoon shift, and $48 allowance for nightshift. When working on the weekends, he is paid time and a half his normal rate of pay.
76 In examination-in-chief, Mr Chow explained that he has worked with the plaintiff since the late 1990s/early 2000, working with him almost every day. The plaintiff worked with Mr Chow at Melbourne Health, Austin Health and Thomas Embling in identical positions on the same classification. The plaintiff was doing exactly the same hours and type of work and nature of work as Mr Chow when he suffered injury.
77 Mr Chow is presently an RPN 2 Year 10 Psychiatric Nurse, the highest level. Whilst on that level he is entitled to pay increases of up to four per cent when increases are negotiated by the union.
78 In 2008, Mr Chow moved to the Albert Road Clinic and continued with Ramsay Health and the Austin Hospital and dropped off The Royal Melbourne Hospital and Thomas Embling Hospital work. He also continues with the nurse bank at the present time.
79 Currently, Mr Chow has two employers: the Austin Health and the Albert Road Clinic, where he works full time and at the Austin as part of work bank. He works shiftwork and works almost every weekend. He has at least one day off a week, on a rotating roster. Sometimes if he does the morning shift, he is asked to stay back and do the afternoon shift.
80 Mr Chow gets four weeks’ annual leave with the Albert Road Clinic and has taken those holidays for the last two years.
81 Mr Chow is married with one adult child, who lives at home. Mr Chow has no physical impediment to carrying out psychiatric nursing.
82 Mr Chow is currently working six days a week, at least eight hours a day, with the ability to do a double shift and sometimes come back on a day off to do overtime. In recent times Mr Chow has worked no less than fifty six hours a week.
83 The plaintiff told Mr Chow he intended to leave The Royal Melbourne Hospital and that he was getting a permanent job at the Austin Hospital. The plaintiff did not tell Mr Chow that he was going to give up other hospitals or nurse bank and just work at the Austin Hospital. The plaintiff had always told Mr Chow he had the intention to work and continue to work; namely, “Same as me”. The plaintiff made similar comments to Mr Chow all the time before and after his injury; since they met. The plaintiff discussed these type of matters with Mr Chow “because [they] were working together and [they] exchanged their experiences”.
84 Mr Chow did not know anything about the plaintiff wanting to move back to Albury/Wodonga, or that the plaintiff’s wife was ill, or that the plaintiff was struggling, having to care for his children.
85 The financial years ending 2004 and 2005, to the best of Mr Chow’s recollection, not having the taxation returns, Mr Chow thought he earned over $120,000 per year.
86 Mr Chow’s present duties involve exposure to acute psychiatric patients.
87 The Albert Road Clinic is a good employer because it is a good working environment. At the moment in Australia there is a severe shortage of psychiatric nurses, especially experienced ones. Mr Chow emphasised, if you are an experienced psychiatric nurse, you can almost work every day, if you want to.
Schedule of Mr Chow’s Earnings
Financial Year Employer Gross Total 30 June 2006 Ramsay Health Care Vic Pty Ltd $69,000.00 Melbourne Health $48,941.00
Austin Health $5,275.00 Victorian Forensic Mental Health $3,357.00 TOTAL $126,573.00
30 June 2007 Ramsay Health Care Vic Pty Ltd $88,353.00 Royal Melbourne Hospital $24,429.00
Vic Forensic Mental Health $9,695.00 Austin Health $17,744.00
Financial Year Employer Gross Total
TOTAL $140,221.00
30 June 2008 Austin Health $39,842.00 Albert Road Clinic $51,946.00 Ramsay Health Care Vic Pty Ltd $34,635.00
TOTAL $126,423.00
30 June 2009 Austin Health $37,004.00 Albert Road Clinic $94,141.00
TOTAL $131,145.00
30 June 2010 Austin Health $36,811.00
Albert Road Clinic $100,368.00 TOTAL $137,179.00
Compensation Documents
88 By letter dated 18 May 2009, Cambridge Integrated Services advised the plaintiff that liability was accepted for his claim pursuant to s.98C for Post Traumatic Stress Disorder (“PTSD”) suffered on the said date.
89 On 24 August 2009, Cambridge Integrated Services advised the plaintiff that it had received the opinion of the Medical Panel on 20 August 2009 where the Panel assessed the plaintiff at ten per cent whole person impairment.
90 In February 2009, the Medical Panel determined that the plaintiff was likely to indefinitely continue to be incapable of further or additional employment or work because of his injury. A that time the plaintiff was not working in excess of thirty five hours per week.
The Plaintiff’s Medical Evidence
91 Dr Assad, the plaintiff’s general practitioner at the Bulleen Plaza Medical Centre, referred the plaintiff to Dr Cronin, psychiatrist, on 14 April 2006 for assessment of WorkCover PTSD and depression. At that time, the plaintiff was taking Luvox and Ativan.
92 On 12 June 2008, Dr Assad wrote to Pamela Czarnecki, referring the plaintiff for counselling and also for assessment in relation to work placement following PTSD and moderately severe depression. Dr Assad’s note of an attendance with the plaintiff on 12 June 2008 was included in that correspondence.
93 Robyne Slade, clinical psychologist, first saw the plaintiff on 21 August 2008.
94 At that stage, the plaintiff reported his symptoms as being frustration, hypervigilance, irritability and animosity towards the workplace. He stated that the incident had a profound affect on himself and his family. He had increased his alcohol consumption in an attempt to self medicate, in addition to prescribed medication. He also reported his marriage and family were suffering, especially financially, in that the family relocated to Wodonga in order to be closer to family support. The plaintiff advised he had seen a trauma counsellor, Vicki Halik.
95 At the time of the initial examination with Ms Slade, the plaintiff told her that since moving to Wodonga at the end of 2007, he had been having assistance from Work Options Rehabilitation Service to obtain work.
96 Throughout consultations with Ms Slade, the plaintiff reported fluctuations in his ongoing symptoms of anxiety, hypervigilance, nausea, abdominal discomfort, as well as disturbed sleep, nightmares and flashbacks.
97 Ms Slade agreed with Dr Cronin’s diagnosis of PTSD. Ms Slade noted that the plaintiff had been successful in getting work at the Wodonga Community Health Team, working thirty two to thirty four hours per week, including ‘on call’ work.
98 The plaintiff told her that he had difficulty maintaining his level of focus due to the sedating effects of his medication, namely, Avanza, Luvox and Seroquel, all of which he took at night.
99 Ms Slade reported the plaintiff had complained of episodes of flashbacks and being re-traumatised by incidents which happened in his work and similar events which occurred in the community. These events caused the plaintiff to be emotionally unsettled and resulted at times in a heavy increase in alcohol use.
100 In Ms Slade’s view, the plaintiff continued to have significant symptoms of PTSD; notably intrusive memory and recollection, avoidance behaviour and hyper arousal symptoms. The plaintiff reported he had made improvement in his functioning and he was very pleased to be working again, although the workplace also presented potential trigger points for exacerbation of his symptoms.
101 Noting the plaintiff had returned to psychiatric nursing in a community setting, Ms Slade stated the plaintiff thought he remained unstable for intensive nursing in a hospital setting where more disturbed patients were treated. She thought the CAT work in itself was a risk.
102 In Ms Slade’s view, six to eight months post trauma, PTSD had become chronic and could no longer be expected to subside naturally, as in a normal reaction to trauma.
103 Ms Slade noted that the plaintiff had achieved some remission in his symptomology, enabling him to undertake work. However, in her view, the plaintiff’s prognosis remained extremely guarded due to the nature of his PTSD symptoms, the setting in which he was injured and the fact he continued to work within that field.
104 Ms Slade recommended the plaintiff have access to ongoing clinical psychological intervention of twelve to eighteen sessions a year to be able to provide appropriate intervention when he had a flare up due to triggers and she considered that the need for those sessions would be ongoing during the plaintiff’s working life.
105 Dr Cronin, consultant psychiatrist, first saw the plaintiff on 24 November 2006 on referral from Dr Assad.
106 On 7 June 2007, Dr Cronin advised “to whom it may concern” that the plaintiff was receiving medication for PTSD and depression; namely, Seroquel, 600 milligrams at night, and Luvox, 300 milligrams. He noted that that medication could have a temporary negative effect upon visual acuity and the plaintiff had been told he required reading glasses. In Dr Cronin’s view, it was likely his medication was contributing to that need.
107 Dr Cronin examined the plaintiff on 26 November 2008. At that time Dr Cronin noted he was pleased to see the plaintiff had achieved a return to part time work and was managing to work up to twenty eight hours a week, despite suffering significant fatigue.
108 Dr Cronin then thought that the plaintiff currently was not fit to work more than twenty eight hours a week. Dr Cronin expected that any further increase in hours would be slow, probably over a period of months to years, as the plaintiff’s medication was altered to his changing circumstances. Dr Cronin concluded there was a distinct possibility that the plaintiff may never achieve a return to full time hours.
109 Dr Cronin reported on 6 September 2010 that since he commenced treating the plaintiff, the plaintiff had required increased antidepressant medication; Luvox 300 milligrams at night, and the neuroleptic, Seroquel, 600 milligrams at night, and the addition of the antidepressant, Avanza, 45 milligrams at night, which Dr Cronin noted had improved the plaintiff’s mood and sleep patterns considerably.
110 The plaintiff had subsequently been able to reduce the Seroquel to 200 milligrams, but continued to experience morning sedation on that dose. Dr Cronin noted, since the plaintiff moved to Wodonga, where he had family support and had been able to get a job, the medication which enabled him to sleep made it difficult for him to get going in the morning.
111 Dr Cronin reported that the plaintiff’s nightmares were less frequent with medication and his daytime flashbacks were less intense than they were previously. He noted the plaintiff continued to have reduced levels of anxiety and depression. Dr Cronin thought that the plaintiff’s condition was still subject to exacerbation by external events, like the murder of a patient at Thomas Embling, at which time the plaintiff became preoccupied by his own incident with flashbacks, sleep disturbance, poor concentration and alcohol abuse. This particular exacerbation took a week and a half to settle down.
112 Dr Cronin noted the plaintiff was also affected by television news reports involving violence or assault and the plaintiff himself was occasionally involved with aggressive patients which caused an increase in the thoughts of the incident and that the plaintiff sometimes drank alcohol at those times.
113 Dr Cronin thought that the plaintiff’s condition was relatively stable. He considered that it was likely that the plaintiff would require at least some medication for the foreseeable future, and also need psychiatric review every few months.
114 Dr Cronin considered the plaintiff suffered PTSD as a consequence of the incident and that he had suffered a permanent mental disorder in relation thereto.
115 Dr Cronin thought that the plaintiff’s psychiatric injury was likely to preclude or restrict him in relation to social, domestic and recreational activities. He thought that the plaintiff’s fatigue prevented him from pursuing previous recreations and that this incapacity would continue for the foreseeable future.
116 In Dr Cronin’s view, the plaintiff’s psychiatric injury and impairment was likely to preclude or restrict him in relation to employment and Dr Cronin thought the plaintiff was restricted in both the nature of psychiatric nursing he could do and also the hours he could work.
117 In Dr Cronin’s view, the plaintiff was exercising his maximum work capacity, taking into account his injury, associated impairment, age and education, skills and work experience.
118 Dr Cronin was impressed the plaintiff had achieved the extent of returning to work that he had. He commented that in the time he had known the plaintiff, the plaintiff had been eager to return to psychiatric nursing, even when he had doubts about the realities of it. He noted the plaintiff experienced sedation and fatigue, which was likely to be ongoing, and he did not consider the plaintiff could realistically extend his current work hours.
119 Dr Cronin concluded the plaintiff’s prognosis was for moderate psychiatric impairment for the foreseeable future.
The Defendant’s Medical Evidence
120 The plaintiff was examined on behalf of MMI WorkCover by Robert Wilks, clinical psychologist, on 7 July 2000, in relation to the Dandenong assault.
121 At that stage, the plaintiff reported he had settled a little bit, relative to his condition a month or so ago, but he remained subject to poor appetite, a little bit of irritability, poor memory, low libido, persistent general tension, and a sense of futility about that job.
122 Mr Wilks thought that in late 1999 to mid-2000, the plaintiff had developed a moderately severe anxiety depressive condition to which his employment was a significant contributing factor, despite the plaintiff’s pre-existing personal vulnerability to react poorly to those sorts of events.
123 In Mr Wilk’s view, the plaintiff was currently and most likely virtually permanently incapacitated for work in the acute unit or similar acute psychiatric wards. Mr Wilks thought the plaintiff could, within a few weeks, and with a graduated hours approach, return to non psychiatric nursing, and was indeed likely to do so by obtaining a new job through his own efforts.
124 Dr Stephen Stern, psychiatrist, examined the plaintiff on behalf of Allianz Insurance on 10 October 2000 in relation to the Dandenong assault.
125 At that stage, Dr Stern thought the plaintiff was suffering from an Adjustment Disorder relating to his work at the Dandenong Hospital. He thought the plaintiff was not fit to return to the Acute Psychiatric Ward. He considered the plaintiff had a partial but not total psychiatric incapacity.
126 The plaintiff was initially assessed on behalf of Cambridge Integrated Services on 23 June 2006 by psychiatrist, Dr Turecek. There was further review on 18 December 2006, and most recently on 18 June 2007.
127 On the first examination, Dr Turecek noted the plaintiff had resigned from The Royal Melbourne Hospital in March 2006, intending to work from the nurse bank on a fortnightly basis. He continued working at the Austin but he found that he was anxious and agitated so that he had difficulty in continuing.
128 Dr Turecek also noted the plaintiff described increasing difficulties with alcohol, especially so since the incident.
129 Following the most recent examination, Dr Turecek referred to a report by Vicki Halik, the plaintiff’s treating psychologist, dated 7 May 2007. He noted that in that report, Ms Halik rightly emphasised the contribution of the plaintiff’s wife’s incapacity to his symptoms. Dr Turecek concurred with the plaintiff’s verbal statement that he was motivated to return to work. Dr Turecek agreed with the statement by Ms Halik that the plaintiff’s prognosis was uncertain at that time.
130 On mental status examination, Dr Turecek found that the plaintiff had no difficulty describing his current situation and the plaintiff’s belief was that he was still not ready to consider a return to work at that time. The plaintiff admitted to residual symptoms of anxiety, exacerbated by the anniversary reaction in April 2007. The plaintiff mentioned his trepidation on exposing himself to the environment of a ward. The plaintiff emphasised he had been doing psychiatric work and still had something to offer. Generally, he felt improved and he was ready to discuss his future but he was still concerned about the course of his wife’s illness.
131 At that assessment, Dr Turecek thought the plaintiff’s symptomology indicated the plaintiff had residual symptoms of PTSD. He noted that the plaintiff had reduced his anti-psychotic medication but had continued the high dose of his antidepressant, taking 300 milligrams of Luvox daily.
132 Dr Turecek considered that the plaintiff had shown good progress with counselling and he thought the plaintiff should try to gradually reduce the frequency of psychological attendances to once a fortnight and alternate that with visits to his treating psychiatrist.
133 Dr Turecek considered that the plaintiff had the capacity to negotiate further with his employer for a suitable return to work to a number of nursing duties.
134 Dr Turecek thought the plaintiff still had residual symptoms of anxiety. He considered that the fact the plaintiff had not done more work for some months was a clear impediment to a return to work in a psychiatric environment. Dr Turecek noted the plaintiff was still concerned about his wife’s illness and the plaintiff’s subjective opinion was that he was not ready to consider a return to work.
135 From a psychiatric perspective, Dr Turecek considered that the plaintiff’s wife’s illness was a further impediment for him to consider a return to work, however he noted he was aware of the plaintiff’s general inclination to transfer to Wodonga/Albury where he had the option of a variety of suitable employment.
136 Dr Turecek confirmed a gradual improvement in the plaintiff’s condition but thought there was still evidence of residual symptoms of PTSD. He noted the plaintiff’s treatment regime was comprehensive, with frequent psychological attendances and monitoring. From a psychiatric perspective, Dr Turecek considered the plaintiff had the capacity to participate in occupational rehabilitation with a view to consider his options of suitable employment in the future.
137 Dr Nigel Strauss, psychiatrist, examined the plaintiff on behalf of Cambridge Integrated Services on 18 December 2007. The plaintiff gave him a history that at the time of the incident he had given up work at other hospitals and was working full time at the Austin Hospital.
138 Further, the plaintiff advised Dr Strauss that the plaintiff’s family had moved to Wodonga and this was a long term plan, because they thought it was a better place to bring up their children and that they had relatives and family there.
139 On examination, the plaintiff reported he only had intermittent nightmares and flashbacks and they were much less frequent. He was sleeping better. He still had some diminution in his memory and concentration. He was still very tired because of the medication. At times he was a little depressed but generally he got on well with his family and was less irritable than he was previously.
140 Dr Strauss noted that the plaintiff’s memory and concentration were good and his speech was normal. The plaintiff was mildly anxious and a little depressed. His thinking was negative but there was no evidence of any psychosis, delusions or thought disorder.
141 Dr Strauss thought the plaintiff had suffered from a PTSD with some associated depression and still had residual PTSD but was better than he had been. In Dr Strauss’ view the plaintiff would need ongoing treatment. He believed that to be the case because the plaintiff had made reasonable progress and it would be appropriate to decrease his major tranquiliser medication slowly, but significantly, over the next few months.
142 Dr Strauss felt the plaintiff should be ready to return to work by February or March 2008 but he considered that it would be ill advised for him to return to the Austin Hospital. Dr Strauss thought the plaintiff should go back to non stressful, non demanding and non threatening work. In his view, the plaintiff could work as a psychiatric nurse with benign patients. Dr Strauss suggested a graduated return to work program over about a month or two before a return to full time work.
143 Ultimately, Dr Strauss was optimistic the plaintiff would make a good recovery and not be left with residual problems but he thought the plaintiff would need to continue taking anti-depressants for at least six to twelve months. Dr Strauss suggested that, over the next few months, psychological treatment cease, but he thought the plaintiff would need psychiatric treatment for at least six months on a fortnightly or monthly basis so his medication could be adequately controlled.
144 Dr Strauss concluded that the plaintiff was suffering from a resolving PTSD but should be ready to return to work shortly.
145 The plaintiff was examined for medico-legal purposes by psychiatrist, Professor Mendelson, on behalf of Cambridge Integrated Services on 6 June 2008.
146 On examination, the plaintiff’s affect was normal. He did not show any abnormalities of motor activity. His speech was fluent. He was co-operative and his demeanour was unremarkable. There was no evidence of cognitive impairment, or any problems with either memory or concentration.
147 During interview, the plaintiff did not show any indications of formal thought disorder and there was no abnormality of stream of thought, or abnormalities in perception, such as hallucinations or illusions.
148 The plaintiff complained to Professor Mendelson of agitation and anxiety. He reported difficulty sleeping, and even with medication it took him an hour and a half to get to sleep. He also reported self medication with alcohol. He felt fatigued during the day. He also felt depressed and he had little zest for life.
149 On questioning, the plaintiff said that his memory and concentration recently had improved greatly.
150 The plaintiff’s description of his symptoms suggested to Professor Mendelson that the plaintiff had subsequently developed PTSD but that condition had gradually improved. Professor Mendelson noted the plaintiff currently described some persistence of symptoms, but currently they did not meet the specific diagnostic criteria for PTSD.
151 Based on the plaintiff’s current presentation, Professor Mendelson thought that the plaintiff did have the capacity to undertake employment options set out in the 130-week Vocational Assessment Report.
152 Professor Mendelson considered that the plaintiff required continuing psychiatric treatment and that such treatment would need to be continued until after he had obtained gainful employment and regained his self confidence in his capacity to work full time. He anticipated that the plaintiff would probably need to remain in treatment for the next eighteen months or two years after he successfully returned to work.
153 Dr Chris Grant, psychiatrist, examined the plaintiff on behalf of Cambridge Integrated Services on 24 April 2009 for the purposes of an impairment assessment.
154 The plaintiff told Dr Grant of feeling less comfortable doing acute inpatient services because of the potential for violence and volatility, such as the inpatient work at Wangaratta Base Hospital, which he did after his WorkCover payments ceased in November 2008.
155 On mental status examination, Dr Grant found there was no psychosomatic slowing or agitation. There was only mild anxiety conveyed. Thought was normal. There were no hallucinations and the plaintiff’s intellect and cognition were intact.
156 Dr Grant concluded the plaintiff appeared to have developed PTSD after the incident. He thought that condition was now in partial remission with ongoing maintenance treatment required. Dr Grant noted there were incidents prior to the said date that created vulnerability because of their similarity to what had occurred at the time of the incident and establishing a pre-existing impairment.
Compensation Documents
157 In a claim for compensation made by the plaintiff on 3 May 2006 relating to facial injuries suffered in the incident, the plaintiff set out in his claim form that he was working forty hours per week at $35 an hour and grossing $1,200 per week. He was also working ten hours of weekly overtime at $300 and shift allowance of $250. These figures totalled $1,750 a week, or $91,000 a year.
158 In the second claim form dated 13 June 2006 also relating to injuries suffered in the incident, the plaintiff repeated most of the details set out on the earlier claim but added an extra $100 per week in overtime. The figures on this second claim totalled $1,850 gross per week or $96,000 a year.
Overview
159 I accept that the plaintiff suffered a compensable psychiatric injury, namely PTSD, in the incident. The consensus of medical opinion is to this effect although a number of practitioners who saw the plaintiff some time ago thought that this condition was resolving – a view not currently shared by the plaintiff’s treating psychiatrist and psychologist.
160 I accept the plaintiff is a hard working man who has had some difficulties in his working life as a result of significant back problems in the mid 1990s from which he has made a good recovery and has only very occasional problems.
161 Whilst the plaintiff suffered from psychiatric problems following the Dandenong assault, after about a year he did not require antidepressant medication and he was able to return to working long hours nursing for five years or so before the incident.
162 I found the plaintiff to be a credible witness who gave evidence in a convincing manner without embellishment or exaggeration.
163 No real attack was made on the plaintiff’s credit by counsel for the defendant and whilst there was reference to video surveillance in the index to the defendant’s Court Book, no film was shown.
164 Further, the plaintiff’s evidence was totally supported by Mr Chow, a fellow worker, who confirmed the nature and hours of work undertaken by him and the plaintiff and also the plaintiff’s intentions as to his work future prior to the incident.
165 For the last year or so, the plaintiff has worked a maximum thirty five and sometimes thirty six hours per week with Wodonga Adult Mental Health in a role similar to a district nurse engaged in psychiatric nursing.
166 I accept the plaintiff’s evidence that this is his “threshold” in terms of the hours he can work given his psychiatric condition and his requirement for significant anti anxiety/sedative and anti depressant medication. Further, the plaintiff remains unable to work in all areas of his chosen occupation as he is unable to cope with working with acute patients as he did prior to the incident.
167 The most recent psychiatric evidence from Dr Cronin, the plaintiff’s treating psychiatrist, who has seen him consistently since 2007, considers this to be the case. Other medical opinion in this regard is somewhat outdated and anticipated a recovery which unfortunately has not eventuated.
168 The plaintiff brings this application in relation to both pain and suffering and loss of earning capacity.
169 To obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 170 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 171 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
172 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
173 This figure is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
174 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
175 I am therefore required to determine a “without injury” earnings figure. Submissions were made by both Counsel in this respect.
176 Counsel for the defendant submitted that the plaintiff’s earnings in the financial year 2005/6 of $103,750 showed a decrease in income from the previous year as at the time of the incident the plaintiff was working only at the Austin Hospital and had decided to give up nurse bank work.
177 On this basis, it was submitted that the previous years higher figure of $119,488 when the plaintiff was doing nurse bank work, together with working at The Royal Melbourne Hospital, was not representative of an ongoing level of income.
178 Further, it was submitted that due to his wife’s illness or for family reasons, the plaintiff did not intend to continue working in Melbourne but had decided to move to the Albury Wodonga area where he would not have worked to the same extent as in Melbourne pre-incident.
179 It was submitted that Mr Chow’s earnings were not relevant when assessing the plaintiff’s “without injury” earnings as Mr Chow did not have a back injury or other physical impediment or pre-existing psychiatric condition. Further, he did not have a sick wife, and he did not intend to move from the Melbourne area.
180 It was submitted Mr Chow’s earning figures should not be accepted in the absence of any documentary evidence as to his earnings in two of the relevant financial years prior to the incident.
181 In these circumstances, it was submitted that the appropriate “without injury” earnings figure should be based on a weekly wage of $1,750 gross which the plaintiff was earning as at the said date as set out in his claim form, together with $10,619 being the total earnings from bank work in the year of injury. Together these figures represented “without injury” earnings of $101,620. Sixty per cent of this amount is $60,972.
182 As the plaintiff earned $72,291 or $1,390 gross per week in the 2009-10 financial year, he has not suffered the requisite loss.
183 An alternative figure of $119,000 was suggested by counsel for the defendant, being the plaintiff’s gross earnings in 2004-5. Based on this figure, the plaintiff earned $2,297 gross per week, sixty per cent of which is $1,378.
184 However, counsel for the plaintiff submitted that the plaintiff intended to continue working on nurse bank as well as working significant hours at the Austin Hospital if he had not been injured.
185 Prior to the incident, the plaintiff was a man who wanted to make as much money as possible “whilst the sun shone”. He did not decide to move to Albury/Wodonga until after the incident when things got too much for him in Melbourne and he required family support in Albury/Wodonga. His wife’s illness came on after the incident and whilst it placed an additional burden on the plaintiff, it was not the reason for moving from Melbourne.
186 It was submitted that reliance could be readily placed on Mr Chow’s earnings in the relevant period for the purposes of assessing the plaintiff’s “without injury” earnings as Mr Chow “stood out like a beacon” as a comparative employee working the same hours and shifts and doing the same work as the plaintiff prior to the incident.
187 It was submitted that taking into account the earnings of $119,000 in 2004-5, and the lesser figure of $103,000 in 2005-6 when the plaintiff only worked ten months because of his incident injury, the plaintiff would have earned in excess of $120,000 in 2005-6 had he not been injured. That figure would have been subject to yearly increases of up to four per cent as Mr Chow described.
188 In terms of the three year period after the incident, it was appropriate to then take into account comparable employee Mr Chow’s earnings, the average of which was $132,596 in this period.
189 I accept that the plaintiff intended to continue nurse bank work, as evidenced by his work at Box Hill on 2 May 2007. Further, his evidence in this regard was supported by Mr Chow who, working with the plaintiff all the time for some years, knew nothing of any planned change in the plaintiff’s work duties in Melbourne or a proposed move to Wodonga.
190 The plaintiff had worked long hours before the incident in a variety of jobs and had every intention of continuing to do so. I accept that there was a lot of work available at the Austin Hospital which was the plaintiff’s focus at the time of the incident but that he was still available for, and intended to do nurse bank work.
191 Whilst he had thought about moving to Albury/Wodonga at some time in the future, the plaintiff had made no arrangements to do so before the incident. Further, his wife became ill after the incident. The plaintiff finally moved to the north east when things got too much for him in Melbourne, struggling after the incident.
192 I am satisfied that an appropriate “without injury” earnings figure is $130,000. This figure most fairly reflects the plaintiff’s earning capacity had the injury not occurred because:
(a)
the plaintiff had the capacity to earn in the range of $120,00 at the time of the incident and could expect yearly incremental increases of up to four per cent thereafter, as Mr Chow stated;
(b)
Mr Chow is an appropriate comparable employee working such similar hours and duties to the plaintiff pre incident. Mr Chow earned not less than $120,000 in the 2003-4 and 2004-5 financial year and he earned $126,573 in 2005-6. An average of earnings in the three years following the plaintiff’s injury is the slightly larger figure of $132,00.
193 In this case, to succeed in his loss of earning capacity claim, the plaintiff must establish that he does not have the capacity, on a permanent basis, to earn in excess of $78,000.
194 The plaintiff, in the most recent financial year, earned $72,000, working a maximum of thirty six hours a week, with Wodonga Adult Health.
195 I accept the plaintiff’s evidence that this is his maximum work capacity.
196 I accept the plaintiff continues to experience significant problems associated with his medication intake and also that he cannot sleep or effectively function without such medication. Four shifts is his limit and additional CAT work is really not an option for him, because he cannot take medication before he performs those duties.
197 Whilst the plaintiff worked twenty shifts or so at Wangaratta in November 2008 at a time when doing less hours at Wodonga, he had problems working with acute patients and was advised by Dr Cronin not to continue working in that area.
198 Although the plaintiff still earns a relatively large income, he has suffered the requisite loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
199 I am satisfied that this situation is permanent, in that it is likely to continue into the foreseeable future.
200 Whilst the plaintiff’s condition did improve to the point where he could return to work and there has been some reduction in his intake of Seroquel, the plaintiff continues to experience a range of psychiatric problems.
201 The optimism expressed by earlier examiners has not been borne out in the plaintiff’s current presentation.
202 The plaintiff continues to be vulnerable to triggers such as the Thomas Embling episode and also on a daily basis to incidents at work.
203 The plaintiff’s treaters, Dr Cronin and Ms Slade, confirm the plaintiff continues to suffer from PTSD and experiences fatigue and sedation. Both considered the plaintiff requires ongoing treatment.
204 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g) of the Act.
205 In light of my findings as to the plaintiff’s impairment and his incapacity, in relation to his psychiatric impairment, I am satisfied that there is no retraining or rehabilitation that would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
206 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
207 Further, the Second Reading Speech relating to the introduction of
s.134AB(17) into the Act is clear on this point. The relevant passage is as
follows:
“The Bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfied the pain and suffering threshold but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If however the worker satisfies the economic loss threshold the worker will be entitled to bring damages for pain and suffering damages and economic loss damages.”
208 In such circumstances, having been satisfied that the plaintiff has the requisite loss of earning capacity, I am not required to consider separately his application in relation to pain and suffering.
209 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
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