Boyraz v Victorian WorkCover Authority
[2017] VCC 1408
•4 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI‑16‑04346
| ADNAN BOYRAZ | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 and 13 September 2017 | |
DATE OF JUDGMENT: | 4 October 2017 | |
CASE MAY BE CITED AS: | Boyraz v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1408 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – impairment of the right hand – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Herald and Weekly Times v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley QC with Mr D O’Brien | Henry Carus and Associates |
| For the Defendants | Mr J Simpson | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Scojo Enterprises (“the employer”) on 14 November 2011 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function
(c) permanent severe mental or permanent severe behavioral disturbance or disorder
3 The plaintiff relied principally on the application pursuant to clause (c). The body function relied upon pursuant to clause (a) was the right hand/finger.[1]
[1]Transcript “T” 100
4 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.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By ss(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, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable”.
8 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.
9 The judgment of the Court of Appeal in Mobilio v Balliotis resolved the meaning of “severe”.[2] Having referred to the considerations mentioned in Turner v Love & Transport Accident Commission[3] 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”.
[2][1998] 3 VR 833 [846], per Brooking JA
[3](1995) 21 MVR 314
10 In Mobilio,[4] Winneke P agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[5]
[4]See Winneke P (supra)
[5]Phillips JA and Charles JA at 860-861 made similar comments
11 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Grech v Orica Australia Pty Ltd & Anor[7] in reaching my conclusions.
[6](2005) 14 VR 622
[7](2006) 14 VR 602
16 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. His wife, Munevver swore two affidavits. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
17 The plaintiff is presently aged fifty-four having been born in Turkey in April 1963.
18 The plaintiff had problems with anxiety and depression before the said date especially arising relating to incidents that occurred during his childhood.[8]
[8]The plaintiff agreed with Dr Tuncer’s summary thereof at paragraph 130 of this Judgment
19 After completing secondary schooling, the plaintiff then worked in an office in the building construction industry.[9] He immigrated to Australia in 1988 and thereafter worked in various factories including Ford and General Motors Holden.
[9]T21
20 The plaintiff started seeing Dr Tuncer for treatment of depression in 1992.[10]
[10]T22
21 The plaintiff agreed in the ten years before the said date, at times, he had problems concentrating and felt uneasy and restless. Whilst he had those issues, he did his best with every job he had and he had been able to work to full potential. He also had problems getting to sleep and he had headaches from time to time.[11] He had fatigue and tiredness but was able to manage himself. These were not “strong” issues before the said date. Every now and again, a “lack of energy would come and go” but he was able to work.[12]
[11]T24
[12]T25
22 In the 2008-2009 and 2009-2010 financial years, before he started working at Prosec as a security guard, the plaintiff earned a small amount driving a taxi. He did not really know the details of that job.[13] He was working around three days a week for maybe 12 hours. He had had back pain for some years prior to 2008 that affected his ability to work as a taxi driver. On a bad week, he might have only been able to drive for two days, perhaps for even less than two hours.[14]
[13]T65
[14]T66
23 In those years, the plaintiff was looking for “proper” work that was not going to “force his back” and was “not too noisy for his psychology” so he could stop driving taxis. His wife was working at that time. He was not very lucky in finding work, thus he was working part time driving taxis.[15]
[15]T76
24 The plaintiff had commenced work for Prosec as a security guard at Wyndham Village Shopping Centre (“Wyndam Village”) some time before June 2010 but could not remember in what month. He had started that job part time and worked only on the weekend. Later on, he was full time casual working four shifts in total - two on day shift from 7.30am to 4.15pm and the other two starting at 4.00pm and finishing at 12.00.
25 The plaintiff’s job at the Wyndam Village involved making sure everything was safe, checking for any damage and just keeping order. He walked around doing these duties for about 30 to 45 minutes and then sat in the office for a while and then did another round of the shopping centre.[16]
[16]T69
26 The plaintiff agreed that if he was doing a heavy task in this security role, he experienced low back pain and stiffness as Dr Kosmidis noted in March 2011.[17]
[17]T31
27 After the plaintiff had spent eighteen months in this job, Prosec lost the contract for Wyndham Village and the plaintiff lost his job.[18] A week later, he received help from an organisation called Western Community Initiative Group in finding further work.
[18]Dr Tuncer’s notes indicate this job finished on 22 July 2011
28 The plaintiff started work for Western Community Health, a cleaning maintenance company, on 27 July 2011.[19] His duties were very light maintenance and cleaning and also very basic gardening. Whilst in that job, he continued to look for other employment and eventually was offered a job with the employer as a general labourer.
[19]Dr Tuncer’s notes
29 The plaintiff agreed he was taking 20 milligrams of Lexapro as of 8 September 2011. His management plan with Dr Tuncer at that time involved medication, positive thinking, occupational activities and exercise.[20]
[20]T28
30 The plaintiff was cross-examined about Dr Tuncer’s note of 22 September 2011. He agreed that he told Dr Tuncer on that day of feeling tired, low energy and sometimes feelings of depression and hopelessness. He also told him that work was troubling him due to his low back pain as it was a manual job doing gardening and sometimes concrete breaking and making roads in a park.[21]
[21]T29
31 The plaintiff had issues before the incident but not as bad as they are now.[22] Sometimes before the incident, he had a depressive and an anxious mood but “of course,” he was motivated to work.[23]
[22]T32
[23]T33
32 The plaintiff took 20 milligrams of Lexapro before the incident to help him get to sleep. He agreed in early November 2011, he was feeling tension from time to time but that “everyone had that from time to time.”[24]
[24]T34
33 Whilst he had told Dr Stern and Dr Weissman that in the year before incident, he had been seeing Dr Tuncer every few months, it was possible the plaintiff had in fact seen him 16 times that year, he did not remember. He “forgot what he ate yesterday, how should he remember everything?”[25]
[25]T32
34 The plaintiff ceased work with Western Community Health in early November 2011 and started with the employer on the said date.
35 On that date, the plaintiff was using a push lawn mower when he noticed there were a large amount of grass clippings still contained under the base of the mower, preventing the flap from closing. As he reached out to remove the clippings so he could put them into the catcher, the lawnmower blade hit his right hand (“the incident”).
36 The plaintiff was nervous doing this task because a fellow worker was putting him under pressure and staring at him.[26] The plaintiff agreed he had feelings of nervousness and being very anxious before the said date but he was able to manage and control those feelings which he had from time to time.[27] The night before the said date, he had had a good day with his sleep.[28]
[26]T21
[27]T22
[28]T73
Treatment after the incident
37 The plaintiff attended Williamstown Hospital where he had an x‑ray and was told his right middle finger and his little finger had been fractured. He was then transferred to Sunshine Hospital where he underwent hand surgery.
38 On discharge, the plaintiff’s right arm was in plaster for a number of weeks and he underwent hand therapy for about six months.
39 The plaintiff disputed that he had an almost full range of movement of his right hand when he was discharged from Western Health on 15 October 2012. His level of movement is restricted as it is now.[29]
[29]T40
40 The plaintiff denied that he had not cooperated in doing the exercises suggested to him by the hand therapist at Western Health.[30] He had always co-operated. “Who would want their hand to stay like that?”[31] “Who would not want their hand to heal?”[32]
[30]T38
[31]T39
[32]T76
41 The plaintiff attended to the Royal Melbourne Hospital[33] because he had been going to Western Health a long, long time and nothing was changing. He had lost his hope he was ever going to change, so he thought he would try another hospital.[34] When he was discharged from the Royal Melbourne Hospital in May 2012, his hand was as it is today.[35]
[33]29 March 2012 – first attendance
[34]T74
[35]T40
42 The plaintiff had a brief return to work with the employer on light duties but lasted only six weeks as he experienced pain in his left shoulder using a spraying tank with his left hand.
43 The plaintiff went back to work on this occasion because he was not getting paid and had to work. He did not really want to go to work. He had no other choice but to try the spraying work with his left hand because of his problems with his right. He wore a backpack which was too much for him.
44 In re-examination, the plaintiff explained that he had left shoulder pain on the second day of light duties. He reported this to his doctor who organised an x ray. The left shoulder problems lasted quite a long time, about a year or two.[36] The pain was challenging at that time but now it is not that bad.[37]
[36]T71
[37]T58
45 It was suggested to the plaintiff that from 21 June 2012, save for an entry in November 2013 when problems with his fingers were noted, the next mention in Dr Tuncer’s notes of right hand problems was in December 2015. The plaintiff explained there was no reason to complain to Dr Tuner because he was a psychiatrist and could do nothing about his hand – “There was no need to constantly repeat the same thing – right hand, right hand.”[38]
[38]T46
46 The plaintiff could not say whether or not he told Dr Tuncer his right hand was causing him sleeplessness. The plaintiff most likely told him he was anxious or depressed because of his hand.[39] He could remember speaking to Dr Tuncer about his hand but he does not know “when and how.”[40]
[39]T46
[40]T49
47 It was possible that the plaintiff was reporting to Dr Kosmidis in July 2013 that he had lowered mood and sleep disturbance.[41] The plaintiff was also experiencing low self-esteem and emotional lability, feelings of helplessness and lack of pleasure at that time. He agreed he then had feelings of tiredness and low energy and had difficulty getting to sleep and frequently woke up. [42]
[41]Attending Doctors Statement 15 July 2013
[42]T61
48 The plaintiff had always said he had those issues before the incident from time to time, but they got worse after the incident and he could not manage. His fears and concerns were “just upraised after that.”[43]
[43]T64
49 The plaintiff last saw Dr Tuncer on 29 December 2015. He agreed he had feelings of tension at that time and had difficulty going to sleep. He could not remember discussing his hand on that visit.[44]
[44]T50
50 As of May 2016 when he swore his first affidavit, the plaintiff was not sure what kind of work he could as he could no longer use his dominant right hand. He could not work as a security guard anymore because he would not be able to apprehend people quickly and not do the simple things he did at Prosec such as helping people with trollies and prams.
51 Prior to the incident, the plaintiff could write basic English and fill out an incident report form in his security job. Since the incident, he was not able to write properly and could not fill out a similar form. Further, he was reluctant to work as a guard because his right hand would be exposed to many people and he would feel anxious about them looking at it and potentially people taking advantage of it.
52 The plaintiff was then unsure what other type of work he could do. He had basic computer skills, however he had never worked on a computer or operated a word processor. In any event, he would not be able to type because of the pain and restrictions in his right hand and he would have problems operating a mouse and a telephone.
53 The plaintiff’s English skills were basic and whilst he could have basic conversations, he struggled when people were talking quickly. Also, due to his anxiety and depression, his concentration skills had decreased and he struggled to follow conversations, especially in English.
54 The plaintiff was embarrassed with the appearance of his right hand and often hid it. He had difficulty with activities like shaking hands and it was very distressing for him to meet new people.
55 The plaintiff did not have full function of his right hand and as he was right hand dominant, he was not able to do many things.
56 The plaintiff’s right hand injury affected many aspects of his daily life, with his wife having an increased load in terms of housework and cooking which put a significant strain on their relationship.
57 As of May 2016 the plaintiff was taking Tramadol to control the pain and he was upset he was reliant on it.
58 The plaintiff had become extremely depressed and anxious. He was anxious about the appearance of his hand and had been prescribed medication for anxiety, including Cymbalta and also Serepax. He also took Lexapro.
59 Whilst he had some problems in this regard before the said date, since then, any anxiety and depression had become much worse. He had also had suicidal thoughts at times. Whilst he was no longer suicidal, from time to time he had suicidal thoughts which he discussed with his doctors.
60 As of May 2016, the plaintiff’s intimate relationship with his wife had ceased and generally their relationship had deteriorated as a result of his injury.
61 The plaintiff had problems getting dressed. He did everything with his left hand, so everything took longer. He could no longer clean the car with his right hand and took a long time to do it with his left. He struggled to drive as his right hand hurt when he did so and he avoided driving as much as possible.
62 The plaintiff could no longer play billiards because of the deformity, pain and restrictions in his right hand. These problems continue.[45]
[45]T37
63 The plaintiff could no longer play social table tennis. He still played cards and backgammon but had lost the ability to play quickly because of his hand injury. He was also self-conscious about other players looking at his hand. As a result, he had become increasingly socially withdrawn which had had a significant impact on him.
64 The plaintiff then struggled to sleep due to pain in his right hand and also because of anxiety. He worried about the future and what would happen to him. Some of the medication he took for depression helped him get to sleep. However, it upset him having to rely on it and it also made him tired and lethargic during the day.
65 The plaintiff had gained weight as he was not out and about as much and exercising anymore because of his right hand injury.
66 The plaintiff swore a second affidavit in December 2016 in which he confirmed he continued to experience significant pain and restrictions in his right hand. His psychological state continued to deteriorate. Whilst he tried to reduce the amount of painkilling medication, although he continued to take Cymbalta and Serepax for anxiety, he had stopped taking Lexapro because he was concerned about becoming addicted.
67 The plaintiff’s hand throbbed in pain, often waking him during the night. When he did sleep, he had nightmares and relived the incident. He could wake in a fright and jump out of bed in a cold sweat. He was tired and lethargic the following day as a result. He was weak and fatigued and required short naps.
68 The plaintiff’s wife continued to give him significant support with tasks such as dressing and shaving. He had problems with his right hand undoing his pants and had some accidents when going to the toilet.
69 The plaintiff’s embarrassment about the appearance of his hand continued and he avoided social occasions drinking tea with his friends.
70 The plaintiff now suffered from depression. He felt like he was going through the motions and struggled to find enjoyment in his life. He was unhappy and felt like he had nothing to look forward to and he was no longer interested in attending social occasions.
71 As a result of his depression, the plaintiff no longer went on dates with his wife such as going to the cinema or just out for the day. Problems with intimacy continued because of his embarrassment and also his humiliation, especially if his wife had had to help him use the toilet.
72 The plaintiff and his wife no longer watched movies together due to his ongoing pain and depression. He struggled to concentrate and was forgetful and could not follow the storyline.
73 The plaintiff continued to struggle driving and used his left hand as much as possible.
74 The plaintiff swore a further affidavit on 12 July 2017 in which he described continuing significant pain and restrictions in his right hand. He cannot make a fist and can only use the tip of his fingers on his right hand. He takes Tramadol and Panadol daily to control his ongoing pain.
75 Since then, the plaintiff’s hand has just consistently got worse. The pain increases with cold weather and that affects him psychologically and makes him feel worse.[46]
[46]T17
76 Whilst in the witness box, the plaintiff showed his hand to the Court. He explained there was a fracture in the little finger and also the hand. He described a squashed nerve in the top of his little finger. He initially lost two of his finger nails. His thumb was sticking out a bit and is always like that. His little finger was at a funny angle and stuck out like that all the time.[47]
[47]T35
77 When the plaintiff he curled his fingers, his little finger stuck out a little bit. He feels pain over the top of his hand all the time, even when doing nothing. There is no pain in the fingers. The tighter clenches, the more it hurts. He was able to place his right hand flat on the bench of the witness box but doing so increased his pain. There was limited thumb movement.[48]
[48]T35
78 The plaintiff did cooperate with Mr Anstee in the grip tests on both examinations.[49] His hands may have looked dirty on that examination because he does not wash them often. He denied he had made a good recovery as Mr Anstee stated “because he is living that”.[50] He denied that he deliberately exaggerated the problems with his right hand and that he could get back to manual work if he wanted to. He has pain in his hand and does not accept he has near normal range of movement.[51]
[49]T41, T43
[50]T42
[51]T43
79 Mr Anstee forced the plaintiff to move more than he could. The plaintiff told him it was painful but Mr Anstee constantly asked him to “try, try.” The plaintiff was not too comfortable with the way Mr Anstee addressed him. Mr Stapleton was a “gentleman doctor.” The plaintiff also co-operated with him on similar testing.[52]
[52]T75
80 The injury had actually not only destroyed the plaintiff physically but psychologically. It had really damaged him and he “was not able to concentrate enough.”[53]
[53]T42
81 The plaintiff can lift up to 5 kilograms if he pushes himself. He did not know how much he can lift with the right hand but if he used his fingertips, he could lift but then would suffer afterwards with pain.[54]
[54]T75
82 The plaintiff’s mental state has continued to decline and depression as a result of the injuries continues to be a significant problem. He relies on Cymbalta and now takes Lexapro for anxiety. He experiences constant reflux and nausea as a result of the medication.
83 The plaintiff is presently under Dr Kochar’s care. He prescribes Cymbalta and other medication. The plaintiff last saw him the day before the hearing when he gave the plaintiff two new tablets that are a bit stronger.[55]
[55]T19
84 The plaintiff continues to experience incident related nightmares and he wakes up in a cold sweat. He tries to fall asleep on a chair but struggles to get back to sleep due to his fear. He is tired and lethargic the following day and is weak and fatigued. He still needs short naps during the day.
85 The plaintiff was diagnosed with severe sleep apnoea at St Vincent’s in 2007. In late November 2011, he attempted to use a CPAP machine but could do so only for a week as it was too uncomfortable.[56]
[56]T57
86 Except for suffering from sleep apnoea from time to time, the plaintiff did not experience any pain or nightmares that prevented him from being able to sleep before the incident.
87 With sleep apnoea before the incident, sometimes the plaintiff did wake up feeling tired, fatigued and unrested, but he did go to work a lot of times like that. He never had an issue falling asleep at work and that certainly was not what happened on the said date. He was actually trying to do his best at his job and do it as quickly as he was able when he was injured, but he was being stared at.[57] Whilst working the plaintiff continued to receive significant support from his wife.
[57]T38
88 The plaintiff remains ashamed of the deformity and tries to hide his right hand as much as possible.
89 The plaintiff now suffers from significant depression and his mental state has declined since he swore his last affidavit. He is always sad and grieves for the life he has lost.
90 When he visits friends, the plaintiff is sad he cannot help them. Prior to the incident, he often helped them with renovations and now he is restricted to watching others work when he visits them. This causes further depression and he avoids his friends as a result. He has gained weight due to inactivity.
91 The plaintiff has lost his confidence and avoids any type of conflict with other people. Pre incident, he was a very confident person and dealt with conflict every day in his role as a security guard. He now asks his wife to deal with others on his behalf and he avoids any confrontation.
92 The plaintiff’s ability to comprehend and speak English has declined because he has lost the confidence required to try and speak a second language. As a result of his inability to concentrate, he sometimes struggles to comprehend and speak in his own language.
93 The plaintiff continues to feel as though he is simply going through the motions and struggles to find enjoyment in his life and he is now very unhappy. He feels like he has got nothing to look forward to. He cannot relax and he is constantly fidgeting and moving around. His smoking has increased because he is trying to control his anxiety and to leave the house. His quality of life has been significantly impacted by his injury.
94 The plaintiff was not aware Dr Tuncer had not recorded any suicidal thoughts by him. The plaintiff could not remember most of the conversations they had. It was possible Dr Tuncer asked him whether he had suicidal thoughts and the plaintiff said “No”.[58]
[58]T51
95 When it was put to the plaintiff there was nothing in Dr Tuncer’s notes about an overdose of medication in early 2013, the plaintiff said he had taken nine pills all at once. He did not know when that was but it was after he hurt his hand.[59] Dr Tuncer did not take notes of all their conversations.[60]
[59]T75
[60]T53
96 The plaintiff confirmed the history he gave to Dr Stern of an overdose[61] and agreed he told him that he hoped he would die. The plaintiff would still say the same thing. He does not enjoy life. He wants to die.[62]
[61]T53
[62]T54
97 When asked what attempts he had made to participate in rehabilitation and retraining to get a job, the plaintiff said he had no motivation whatsoever because “his psychological state, his confidence and joy had been completely destroyed.”[63]
[63]T70
98 In cross examination, when it was suggested to the plaintiff he could do light process work avoiding using his right hand, he said he was fed up with the world. He did not have any confidence. His fears were increased. “He could not even walk onto the road without being scared. What could he do?” Before the incident, he agreed he had fears and lack of confidence “always with him” but it was not that severe.[64]
[64]T71
99 The plaintiff could manage the security work with his back pain because it was an easy job, the people he worked with were really helpful and he could sit and stand when he wanted. It was perfect for him. Management were really good people and they were looking out for him.[65]
[65]T72
100 If he did not have problems with his nerves or his hand, the plaintiff could work now with his back condition. Even though he had psychological issues in the past, he had always done his best to overcome them and continue working.[66] If his right hand was just his problem, he could do something but he is limited in how much he can do with his left hand.[67]
[66]T72
[67]T73
Lay evidence
101 The plaintiff’s wife, Munevver, swore an affidavit on 22 December 2016 and more recently on 4 July 2017.
102 Mrs Boyraz confirmed the plaintiff continues to suffer pain and restrictions in his right hand. He has become significantly depressed and his personality has changed since the incident.
103 The plaintiff continues to have nightmares. He appears to be more depressed and avoids socialising compared to their active social life pre incident.
104 Mrs Boyraz has observed the plaintiff appears to be grieving since injuring his right hand. Pre incident, he was optimistic and now seems to be very sad, grieving for what he has lost and the way his life has changed. They do not discuss the future or make any plans and he is sad he cannot help people.
105 Pre incident, the plaintiff was very confident and had the confidence to work as a security guard at the shopping centre, a job which involved confronting people, dealing with conflict and also customer service. He no longer has this confidence and avoids all confrontation.
106 Ms Boyraz has noticed the plaintiff’s ability to comprehend and understand English has declined. He now relies on her to handle any problems on their behalf and interact with service providers, whereas before he was the person who handled the majority of their affairs.
107 They no longer enjoy an intimate relationship. The plaintiff is tired and pre occupied with his pain. They no longer speak or laugh the way they used to pre incident and he is no longer the patient person he was before. He often loses his temper and becomes even more withdrawn. She no longer enjoys the same strong relationship they had prior to his injury. She has observed the injuries continue to have a significant impact on his life and his personality has changed as a result of his depression.
The Plaintiff’s treaters
108 The plaintiff was admitted to Williamstown Hospital on 14 November 2011 and discharged later that day. The principal diagnosis was “fracture of other metacarpal bone(s) part unspecified; injury of extensor muscle in tendon of other finger at wrist and hand level; fracture of the proximal phalanx and open wounds.”
109 The plaintiff was then transferred to Sunshine Hospital for surgery - an open reduction of the fracture of metacarpus with internal fixation.
110 The plaintiff was seen in the dressing’s clinic on 21 November 2011 when it was noted the wounds were quite good and were not infected. Neuro-vascularly, the plaintiff was intact but quite tender at the fracture site.
111 On the next visit on 5 December 2011, the plaintiff was tolerating the splint well. He still had a tender right middle finger and the skin was macerated in the thumb web space.
112 The plaintiff attended again on 12, 19 and 29 December 2011. On the latter visit, it was noted he was still smoking and had not washed his hand. He had worn the splint nearly full time and only completed his exercises once daily. His skin was dry and flaky. The scar was tethered around the k wire sites and he had poor bone mechanics. He was re-educated on exercises which were clearly written out for him.
113 On 23 January 2012, the plaintiff’s son reported the plaintiff was still wearing the splint most of the time despite recommendations to cease doing so a month earlier. The plaintiff advised that was due to anxiousness and a problem in his head and it was discussed that he was psychologically impacted by the injury. The plaintiff said he was not able to return to work secondary to psychological and physical reasons. He felt he was not able to perform many activities of daily living until his hand was one hundred per cent and he could not recall any of the exercises previously recommended.
114 The plaintiff was next seen on 20 February 2012. He then complained of pain around the head of the little finger metacarpophalangeal joint and tenderness over the middle finger tip. He was doing domestic activities with his right hand. On examination, he had a very sensitive middle finger and was very reluctant to use his hand secondary to pain.
115 The need to continue exercises was reinforced as was the desensitisation program and the plaintiff was booked for a group therapy session.
116 The plaintiff did not keep that appointment and when seen on 5 March, said he received advice from his general practitioner not to move secondary to non-union of fracture. However, it was noted the fracture was clinically stable and the plaintiff was advised to mobilise and strengthen it. He was again reminded of the importance of therapy and using his hand in everyday occupations.
117 The plaintiff did not keep an appointment on 28 May 2012. There was an x‑ray on 18 June 2012. He did not attend on 27 August 2012.
118 When the plaintiff attended on 17 September 2012, he complained of pain. He said he took Oxycodone occasionally. It was noted a nerve conduction study done the previous week was normal and the plaintiff was advised to return to work on light duties and stop smoking.
119 When the plaintiff was seen on 15 October 2012, it was noted he had an almost full range of movement and the prognosis was good. Although he was still smoking, he was discharged from the clinic.
120 The plaintiff first attended Royal Melbourne Hospital on 29 March 2012.
121 On examination, it was noted the right fifth digit was deformed with some deviation at the metacarpophalangeal joint. There was right fifth digit sensory loss with some pain on palpation over the fifth digit. An x‑ray was performed and a plan made for further review with the plastic surgeon.
122 It was noted a right hand x‑ray revealed a fracture of the fifth metacarpal which appeared to be healing with the fracture line still visible. The fracture of the proximal phalanx of the fifth digit was healing satisfactorily and alignment was satisfactory.
123 The plaintiff was reviewed in the Hand and Wound Clinic in April 2012 when it was noted he complained of ongoing pain and a further x‑ray was undertaken.
124 That investigation revealed a healing fracture of the proximal right phalanx which was still visible. Surrounding callus formation was noted, as was an old fracture of the neck of the right fifth metacarpal.
125 The plaintiff was reviewed again in May 2012 when it was noted there was an aspect of malunion on the x‑ray. The range of movement of the right hand joints was acceptable. The options were discussed with the plaintiff and a plan made for further hand therapy at Western Health.
126 Dr Tuncer, psychiatrist, has treated the plaintiff since 1992 and last saw him in December 2015 before going to Turkey. The full set of his clinical notes was forwarded to Dr Weissman, Dr Jager and Dr Stern for their comment at the commencement of the hearing.
127 In his June 2012 report, Dr Tuncer stated that in his psychiatric opinion, the plaintiff was unable to work and was likely to be unable to work in the foreseeable future.
128 Dr Tuncer noted the plaintiff had been suffering from a Generalised Anxiety Disorder with depressive features. He was then experiencing symptoms of depressive mood; anxious mood; low self-esteem; feelings of hopelessness; tension; from time to time, restlessness; difficulty getting to sleep and waking up frequently; difficulty verbalising his feelings; feeling irritable from time to time; feeling tired; low energy, and feeling apprehensive as if something bad would happen to him.
129 Dr Tuncer noted the plaintiff experienced an unhappy childhood with his parents separating when he was nine. The plaintiff was not able to see his father regularly and described his father as ‘irresponsible spending time outside’ and also described his mother as ‘unloving.’ He said his older brother physically abused him during their childhood.
130 Dr Tuncer last reported on 14 November 2014.
131 Dr Tuncer noted the workplace incident where the plaintiff fractured his right hand. This injury worsened the plaintiff’s psychiatric illness and impacted on his ability to make a full or partial return to work. Dr Tuncer then thought the plaintiff was unable to work and was unlikely to return to any work.
132 To the best of his knowledge, from a psychiatric point of view, Dr Tuncer thought prior to the said date, there had not been a time the plaintiff had been medically unable to work more than 30 hours a week.
133 The plaintiff’s general practitioner, Dr Kosmidis, most recently reported on 15 April 2017.
134 Dr Kosmidis reported that the plaintiff currently has daily pain and weakness associated with the fixed flexion deformity of his right fifth finger affecting his ability to grip effectively with his right dominant hand. This was permanent and unlikely to improve with any further treatment.
135 Dr Kosmidis noted the plaintiff’s physical condition (pain and weakness in the right hand) had affected his ability to work in gainful employment. His physical injury had also negatively impacted on his longstanding depression and anxiety for which he has been treated by his psychiatrist. The plaintiff’s physical and mental condition had affected his ability to work.
136 Dr Kosmidis thought the plaintiff was permanently and totally incapacitated for any form of employment, given his right dominant hand is effectively incapacitated for use in gainful employment. His depression and anxiety, which have been further compounded following his hand injury, also contribute to his permanent incapacity.
137 Dr Kosmidis thought the plaintiff’s prognosis was poor, in that recovery was unlikely. He noted the plaintiff has daily constant pain when attempting to use his right hand for activities of daily living. This daily reminder of his physical incapacity aggravates his longstanding depression and anxiety. It has negatively affected his ability to work and enjoy life.
138 Dr Kochar, psychiatrist, has treated the plaintiff for the last year.
139 Dr Kochar reported in June 2017 that the plaintiff told him since the incident injury, his mental condition got aggravated and he went to pieces suffering from anxiety, nervousness and tension, shakiness and bouts of depression. He had been under Dr Tuncer’s care.
140 The plaintiff had been on Oxazepam, 15 milligrams and a day, and Cymbalta, 60 milligrams a day. He says he is not well and still experiences nightmares and flashbacks. He is scared and wakes up shaking every one to two hours. He is very anxious, nervous and ends up smoking to calm his nerves.
141 Dr Kochar noted the plaintiff is always depressed and agitated and sometimes gets this impulse of taking an overdose and finishing his life. He has never made a serious OD and it does seem more like wishful thinking as an escape from his plight. The plaintiff says he can be trusted with his medication.
142 Dr Kochar added Zyprexa, 2.5 milligrams in the evening to the plaintiff’s current medication regime.
Medico-legal examiners
143 Mr Murray Stapleton, plastic and hand surgeon, initially saw the plaintiff in 2013 and more recently in February this year.
144 On the most recent examination, the plaintiff advised his right hand constantly ached. The pulp of the middle finger sensation had returned but his discomfort was made worse when he attempted to flex his right hand. The power of his grip was very much diminished. The plaintiff advised, it was painful to make a fist. He also had a reduced range of flexion in the right little finger which explained the diminution of grip power. He is more awkward now.
145 Mr Stapleton noted the plaintiff was medicated for depression and had a back problem.
146 On using the Jamar dynamometer, the right hand dominant hand measurements were 8 kilograms, 8 kilograms and 8 kilograms and the plaintiff’s unaffected left hand grip measured at 32, 28 and 22 kilograms.
147 Mr Stapleton noted the plaintiff’s depression and lack of English will make him, in view of his age, unemployable. He needed no further treatment. Anything that he did, given it was his dominant hand, of course affected the plaintiff’s domestic, financial and social and activities of enjoyment of life would therefore all be affected. Mr Stapleton thought the plaintiff had reached maximum medical improvement.
148 Dr Slesenger, specialist occupational physician, examined the plaintiff in April 2016.
149 The plaintiff then advised of ongoing pain, stiffness and weakness in the right hand and being unable to perform a firm grip. He thought his hand was deformed. It was sensitive to cold and he was unable to perform fine movements.
150 The plaintiff advised he had become depressed, anxious and tearful and he was under the care of a psychiatrist and had been prescribed antidepressant medication.
151 The plaintiff stated his mood remained low, he was anxious, his sleep was poor and he slept for no more than a few hours at night. He had lost hope and he had become socially isolated. His memory and concentration were poor.
152 Dr Slesenger noted that the plaintiff returned to work for about six weeks, working once a day doing light duties with his left hand spraying herbicide. He worked four hours a week for six weeks but ceased work because he was unable to maintain his function. Dr Slesenger noted the plaintiff had had no retraining and no support with regard to returning to work.
153 Dr Slesenger thought the plaintiff had sustained a complex injury to his right hand involving fractures to the fifth metacarpal and proximal phalanges. He had also developed a psychological impairment and he thought the plaintiff had subsequently developed a Chronic Pain Disorder.
154 Dr Slesenger considered the plaintiff’s capacity for work had been adversely affected and he should avoid right hand gripping and pushing, pulling and lifting over 5 kilograms. He thought the plaintiff could not return to his pre injury duties, noting the manual handling tasks involved.
155 Dr Slesenger considered the plaintiff’s current restrictions were likely to be permanent. He noted the plaintiff’s past occupational history and his education and language limitations. He thought the plaintiff was unlikely to return to a role requiring significant manual handling requirements. He could not return to work performing landscaping or gardening. He could not return to work as a taxi driver given the requirement to grip the wheel for long periods and assist with luggage. He could not return to security work given his requirements to restrain members of the public. Further, he has no transferrable skills or qualifications outside these industries and his language restrictions would also limit potential employment.
156 Dr Slesenger noted the plaintiff had experience in manufacturing which Dr Slesenger thought, based on physical impairment alone, the plaintiff had the capacity to return to work in a light assembly or light packing role, avoiding right handed duties. He thought the plaintiff could return to work working four hours a day, four days a week with a five minute break per hour.
157 Dr David Weissman, psychiatrist, examined the plaintiff in April 2017. He later provided a supplementary report, having received Dr Tuncer’s full set of notes detailing the plaintiff’s psychiatric treatment from 1992 to 2016.
158 The plaintiff told Dr Weissman at the time of the incident he was seeing Dr Tuncer on roughly a three monthly basis and was taking Lexapro.
159 The plaintiff advised he started seeing Dr Tuncer in around the early 1990s because of lots of lack of confidence - “I looked at life not in a positive way, I used to fear death. Anxiety, depression.”
160 The plaintiff told Dr Weissman the incident was dramatic, frightening and scary for him.
161 When asked about his emotional state, the plaintiff said:
“If I know I could have a comfortable death I would do it. I’ve got no hope. The world means nothing to me. I feel very depressed a lot, every day, very bad.”
162 The plaintiff advised Dr Weissman he had bad dreams about the incident at least five or six times a year. He talked of recurrent intrusive mental images and pictures of the work incident itself at least 12 to 15 times a month and he thought about the work incident almost every day.
163 When asked whether he would be able to work again, the plaintiff told Dr Weissman he could not get adapted to anything quickly and was in a lot of pain and psychologically, his head was not right.
164 In his first report, Dr Weissman noted the plaintiff clearly had disturbed disrupted and dysfunctional developmental history, childhood and family home life in Turkey, which impacted upon his developing sense of self, self-esteem and confidence and mood state.
165 The plaintiff had started to see Dr Tuncer in the early 1990s because of chronic anxiety (generalised anxiety disorder), chronic depression and chronic Major Depressive Disorder, a lack of self-esteem and confidence, a fear of death and a negative pessimistic outlook on life. He was prescribed numerous psychotropic, including anti depression medications over the years.
166 Despite taking Lexapro and seeing the psychiatrist roughly on a three monthly basis at the time of the incident, Dr Weissman noted the plaintiff had a full psychiatric capacity for work. Dr Weissman thought this was no longer the case.
167 At the time of the incident, Dr Weissman considered the plaintiff was suffering from a mild to moderate chronic Major Depressive Disorder and a mild to moderate generalised anxiety disorder, but he had a full psychiatric capacity for work. His current overall psychiatric state is contributed to by pre-existing and unrelated factors in a mild to moderate manner. He had significant pre morbid psychological and emotional vulnerability factors.
168 Dr Weissman considered the incident was and still is emotionally distressing, traumatic, scary and frightening for the plaintiff as well as physically injurious and physically painful in an ongoing manner.
169 There has been a moderate aggravation of both the plaintiff’s chronic Major Depressive Disorder and generalised anxiety disorder such that he is now suffering from Chronic Major Depressive Disorder with anxiety and agitation, also known as an agitated depression of severe intensity or severity and severe generalised anxiety disorder
170 Furthermore, Dr Weissman thought the plaintiff now suffered from mild to moderate classical and discernable chronic post-traumatic stress and anxiety symptoms and traumatisation features but mostly likely not a full blown chronic Post-Traumatic Stress Disorder (“PTSD”). He also thought there had been at least a moderate aggravation of the plaintiff’s pre-existing psychiatric state by the incident, such that he is now totally incapacitated for all work.
171 Dr Weissman thought ongoing psychiatric and psychological treatment would be of benefit and also an increase in the current dose of Cymbalta with the addition of a mood stabiliser.
172 In Dr Weissman’s view, the plaintiff is currently suffering from a severe group of collectively and cumulatively psychiatric conditions. This was mildly to moderately contributed to by pre-existing and unrelated factors and at least moderately aggravated by work related factors.
173 In particular, due to the plaintiff’s depressed and agitated mood states, passive suicidal ideation, loss of self-esteem and confidence, social withdrawal and cognitive dysfunction to new a few of his symptoms, he is totally incapacitated for all work. This would be further entrenched and reinforced when one considers the definitions of suitable employment, including but not limited to the plaintiff’s advancing age, fifty four; the language barrier; his time out of employment, more than five years; his educational history in Australia and his occupational history and transferrable skills (outside manual labour).
174 Dr Weissman thought there was no doubt the plaintiff was suffering longstanding chronic Major Depressive Disorder and generalised anxiety disorder and there was no doubt he had significant premorbid psychological and emotional vulnerability factors. However, there was no actual psychiatric incapacity for work at the time of the incident.
175 The plaintiff was then involved in an emotionally traumatic and physically injurious and painful incident which has led to at least a moderate aggravation of pre-existing conditions with new traumatisation features.
176 Dr Weissman thought the psychiatric prognosis for the future was likely to be very poor, negative and unfavourable.
177 Having been provided with Dr Tuncer’s notes and reports, Dr Weissman commented that overall Dr Tuncer diagnosed a generalised anxiety disorder with depressive features. Based on that treater’s reports, Dr Weissman thought it seemed that he opined that the plaintiff’s psychiatric state had been aggravated by and further deteriorated since the incident. It seemed that when Dr Tuncer last assessed the plaintiff in late 2015, he was psychiatrically unable to work, which was not the case prior to the indent.
178 The content of Dr Tuncer’s subpoenaed clinical records confirmed to Dr Weissman the plaintiff clearly had a disturbed and dysfunctional childhood history which impacted on his developing sense of self, self-confidence and confidence and mood state as he stated in his original report, confirming the nature of the treatment he thought Dr Tuncer had given the plaintiff from the early 1990s and the plaintiff’s pre incident condition.
179 Dr Weissman noted, however, as stated, despite the above pre-existing premorbid history, the plaintiff had a full psychiatric capacity for work immediately before the incident. Having seen the notes, there was no reason for him to change his opinion as to the ongoing effects of the incident injury or the diagnosis and the additional diagnosis that had been set out in his earlier report. Ultimately, Dr Weissman’s opinions remained the same.
180 Finally, Dr Weissman stated that it may be important to add that as a result of the plaintiff’s significant past psychiatric history and significant premorbid psychological and emotional vulnerability factors, he found it even more difficult to adapt, adjust and cope with the direct circumstances of the incident and especially the physical surgical consequences and the sequelae thereof.
181 Even though the work related incident would have been emotionally distressing, traumatic and frightening for most members of the community, as well as physically injurious and painful, Dr Weissman thought because of the plaintiff’s pre-existing psychiatric history and his significant premorbid psychological and emotional vulnerability factor, he had found it even more emotionally distressing, traumatic and frightening.
182 Dr Jager, psychiatrist, examined the plaintiff on the defendant’s behalf, in June 2017.
183 Dr Jager was then provided with Dr Tuncer’s 2012 and November 2013 reports and his handwritten notes from October 2010 and March 2011, the Sunshine Hospital discharge summary and Mr Stapleton’s first report.
184 The plaintiff told Dr Jager of pre-existing low back pain and depression and anxiety from 1992. Following the incident, he returned to work but had to cease because of his left shoulder.
185 The plaintiff told Dr Jager his depression was worse than it was before the injury and he felt anxious most of the time. His enjoyment of life was terrible and he had difficulty with sleeping and staying asleep. He had nightmares three times a week about dying, the world ending and occasionally about the incident. He experienced incident flashbacks about once a week and avoided being around people. He felt tired, he had no libido and his concentration was poor. He currently had passive suicidal thoughts.
186 Dr Jager thought the plaintiff aggravated his pre-existing chronic Major Depressive Disorder and also had chronic PTSD. This psychiatric condition interfered with his activities of daily living in terms of grooming and nutrition. The plaintiff had an exacerbation of his pre-existing chronic Major Depressive Disorder and also had a chronic PTSD, both materially related to work.
187 The plaintiff also experienced pain in the left shoulder and right hand and took Tramadol for it.
188 Dr Jager noted the plaintiff’s psychiatric condition adversely affected his sleep, self-care, recreational and social activities, libido and enjoyment of life. Dr Jager recommended the opinion of a pain specialist with regards to the disabling effect of the pain itself.
189 Dr Jager did not think the plaintiff was currently capable of pre injury duties or suitable employment. Any return to the latter would require an enhanced response to treatment, and probably more intensive psychiatric treatment.
190 Dr Jager considered rehabilitation was not currently appropriate but would be as part of the package of more intensive antidepressant therapy. He noted the plaintiff did not report undergoing further training, rehabilitation or attempts to return to work.
191 In Dr Jager’s view, there were no lifestyle and/or other factors unrelated to the plaintiff’s psychiatric and physical condition and resulting incapacity which impacted on his motivation to return to work in suitable employment.
The Defendant’s medical evidence
192 The defendant relied on Dr Tuncer’s clinical notes that:
· The plaintiff attended on sixteen occasions in the twelve months prior to the said date; and
· The lack of reference to the right hand complaints between 2012 and 2015 save for in November 2013.
193 Dr Kosmidis reported in December 2004 that the plaintiff suffers from chronic back pain and associated degenerative lumbar disease as well as chronic anxiety/depression. He is unable to work full time duties. He is unable to perform manual work requiring lifting, prolonged sitting and standing or repetitive lifting movements.
194 Dr Kosmidis completed a total and permanent disability questionnaire in July 2013 in which he set out the plaintiff was suffering from the following non-compensable conditions: depression, General Anxiety Disorder, R 5th finger flexion deformity, Severe Obstructive Sleep Apnoea, Gastroesophageal Reflux Disease, Left Rotator Cuff syndrome, Degenerative osteoarthritis spine.
195 In his October 2014 report Dr Kosmidis also included chronic nasal problems irritable bowel and obesity in a list of the plaintiff’s medical conditions at the time.[68]
[68]In addition to those set out in the 2013 TPD form
The Defendant’s medico-legal evidence
196 Mr John Anstee, plastic and reconstructive surgeon, examined the plaintiff on two occasions, initially in February 2014 and most recently in August 2016.
197 On both occasions, Mr Anstee thought the plaintiff’s wounds had healed most satisfactorily.
198 Mr Anstee diagnosed fractures of the proximal phalanx of the right middle finger, fractures of the metacarpal of the right little finger, together with some soft tissue and some skin injury.
199 On the first examination, Mr Anstee thought the plaintiff had reasonable hand function.
200 At both examinations, Mr Anstee did not believe the plaintiff was cooperative. He thought the plaintiff was making the absolute most of his injury and that there was not genuine maximum effort on the grip test, where right sided grip was markedly reduced compared to left.
201 On re-examination, Mr Anstee thought the plaintiff had a near normal range of movement in the right hand and that he was not suffering to any significant extent from a physical injury. He doubted that the plaintiff had a genuine Complex Regional Pain Syndrome.
202 Mr Anstee thought the plaintiff could return to pre injury duties and suitable employment.
203 Dr Stephen Stern, psychiatrist, examined the plaintiff in February 2014 for the purposes an AMA assessment. The plaintiff told him of the incident injury and that because he was overusing the left hand, he then developed left shoulder pain and stopped work.
204 The plaintiff advised he was depressed by the pain and felt worthless. He no longer enjoyed life and was sometimes tearful and he was easily irritated. He got very impatient. He worried about the future. He had suicidal thoughts in early 2013 and he took eight Serepax at which time he hoped he would die. He still had suicidal thoughts but there had been no further attempts.
205 The plaintiff reported his sleep was disturbed, there were nightmares about various things including snakes, he had lost energy and he felt very tired. His memory and concentration were reduced.
206 Dr Stern then thought the plaintiff was suffering from chronic Major Depressive Disorder and generalised anxiety disorder that pre-existed the incident but was aggravated by it. He thought the plaintiff’s psychiatric state had stabilised.
207 Dr Stern further reported having been provided with Dr Tuncer’s notes.
208 In his supplementary report, Dr Stern noted Dr Tuncer’s diagnosis and the fact he had treated the plaintiff during 1992, 1994, 1995, 1998, 2004 and 2005 and on a regular basis from 21 February 2011. He listed relevant entries from Dr Tuncer’s notes which described symptoms of depressed mood; sleep disturbance; feeling tired; low energy; feelings of hopelessness but no suicidal thoughts and that prior to the incident, the plaintiff was taking 40 milligrams of Lexapro at night.
209 Dr Stern thought the notes and medication indicated that there was clinical evidence of a depressive and anxiety disorder pre-incident which was being treated appropriately with an antidepressant.
210 Dr Stern considered the plaintiff’s anxiety and depressive disorder was moderately severe prior to the incident. He felt it was aggravated by a moderate degree by the incident injury.
211 Whilst noting the description of suicidal thoughts in early 2013, according to Dr Tuncer’s notes, the plaintiff was not suicidal in 2011 prior to the incident.
212 Dr Stern maintained his opinion that employment has been a significant contributing factor to the plaintiff’s psychiatric state. There was a pre-existing anxiety and depressive disorder of moderately severe degree but after the incident, the plaintiff developed suicidal behaviour and also a phobic avoidance of using lawnmowers. He also looked away if he saw accidents on the TV and was easily startled by noise.
213 Dr Stern thought these specific symptoms were directly related to the incident injury. Lexapro had been increased to 40 milligrams at night prior to the work injury and the dosage was still at that level on examination in February 2014.
214 Dr Jager’s provided a supplementary report after being given Dr Tuncer’s clinical notes.
215 Dr Jager noted the plaintiff had a pre-existing psychiatric condition warranting the same sort of treatment before the incident as after. He considered the plaintiff’s pre incident treatment was moderately severe requiring consultant psychiatric treatment with talking therapy and antidepressant medication and the post injury diagnosis was of similar severity. The medication dosage prior to the incident and subsequent thereto was similar, suggesting little difference in the severity of the condition before and after the incident.
216 Dr Jager noted the symptoms the plaintiff reported to him in June 2017 that warranted a diagnosis of PTSD when examined were not prominent in Dr Tuncer’s notes in the period between 2011 and 2015. The main themes then were of depression and anxiety but not of re-experiencing the incident on a frequent basis as the plaintiff reported. By the time the plaintiff was seen, he reported prominent symptoms of PTSD somewhat at odds with Dr Tuncer’s notes.
217 Further, Dr Tuncer considered that at no time prior to the incident had the plaintiff ever entered a full remission. Not only that, his condition had regularly required the services of a consultant psychiatrist.
218 In terms of severity, Dr Jager considered the plaintiff’s psychiatric condition before the incident was moderately severe, judging by the nature of the treatment and recorded symptoms and his presentation on examination was also moderately severe. Any aggravation when seen in the context of the plaintiff’s lifelong symptoms and his treatment requirements, is at the mild end of the spectrum.
219 When Dr Jager examined the plaintiff, he told him felt anxious most of the time and his depression was worse. When the plaintiff last saw Dr Tuncer before the incident, he said he had trouble getting to sleep and had a depressed mood and was feeling tensions from time to time. At the interview before that, he was feeling anxious and depressed. He had been experiencing the same sort of symptoms for months if not years beforehand.
220 Having had access to Dr Tuncer’s records, Dr Jager concluded the plaintiff’s depression was at the same level of severity as it was before the incident but, based on his reported symptoms, his anxiety was mildly worse, at least on cross sectional assessment in June this year.
Wage details
221 In the financial year ending 30 June 2008, the plaintiff’s income was $16,028, of which $3,500 was Centrelink. The plaintiff thought the total income may have included some earnings from taxi driving.
222 In the following financial year, the plaintiff’s total taxable income was $4,979. Income was noted as $1,873 which he thought might have been from taxi driving.
223 In the financial year ending June 2010, the plaintiff earned $11,982 from Prosec, $750 from taxi driving and about $2,000 from what appeared to be other cleaning jobs, with a total gross income of $14,491.
224 In the following year, the plaintiff grossed $46,581, working for Prosec.
225 In the following financial ending 30 June 2012, the plaintiff’s earnings from Prosec were $4,586, having ceased that employment on 22 July 2011. He also earned $11,106 from his work with Westgate Community Initiatives.
Overview
Credit
226 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[69]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[69](2010) 31 VR 1 at paragraph [12]
227 Based largely on the examination findings of Mr Anstee, counsel for the defendant submitted the plaintiff had exaggerated the consequences of his right hand injury. Further, he did not cooperate fully with the testing carried out by Mr Anstee.
228 It was also submitted whilst Mr Stapleton was “not as harsh” as Mr Anstee, Mr Stapleton had noted a decrease in power grip measurements “according” to the plaintiff.[70]
[70]T82
229 Further, it was submitted the plaintiff lied about a suicide attempt to Dr Stern, not having mentioned it to his treater Dr Tuncer. It was also submitted the plaintiff understated the number of attendances on his treating psychiatrist in the year before the incident, telling Dr Weissman he was seeing him every three months, when Dr Tuncer’s notes indicated the plaintiff in fact attended 16 times in 2011.[71]
[71]T80
230 In response, counsel for the plaintiff pointed out that the plaintiff gave evidence over a substantial period and did his best to answer questions. It was submitted there was little to say that went against his credit other than the comments of Mr Anstee. These comments it was submitted might be seen in terms of the plaintiff’s description of Mr Anstee pushing him into painful positions and seemingly being unsympathetic as distinct from the “gentlemanly conduct” of Mr Stapleton.[72]
[72]T105
231 As I indicated to the parties during the hearing, I found the plaintiff to a truthful witness who gave an honest account of his condition, in particular his pre incident health problems. [73]
[73]T88
232 Whilst surveillance was undertaken, there was no film was shown of any activity on the plaintiff’s part inconsistent with his description of his pain and restrictions.[74]
[74]T104
The right lower limb impairment
233 There is no dispute the plaintiff suffered a crush injury to his right hand in the incident. By letter dated 1 April 2014, CGU advised that the plaintiff’s impairment claim had been accepted in relation to both his right hand/finger injury and aggravation of his psychiatric condition.
234 However, counsel for the defendant submitted there was no or no substantial organic basis for the claimed pain and suffering consequences in relation to what was described as a right little finger deformity.[75] Further it was submitted that the plaintiff had failed to “disentangle” as the Court directed in Meadows v Lichmore.[76]
[75]T78
[76][2013] VSCA 201
235 It was also submitted that the plaintiff’s other incident injuries, namely to the hand and middle finger had been “repaired.”[77]
[77]T78
236 Further, when one considered the plaintiff’s current condition, he suffered from a range of medical problems and it was submitted and he had failed to establish that his finger condition alone was serious. Pursuant to Peak Engineering[78] the non-compensable conditions had to be excluded.[79]
[78]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[79]T84
237 Further, Dr Kosmidis certified in December 2004 that the plaintiff had chronic permanent and constant low back pain and was not able to work full time duties and unable to perform manual work.[80]
[80]T83
238 Reliance was also placed on Dr Kosmidis 2013 TPD form in which he named seven conditions which formed the basis of this total and permanent certification and also his description of the plaintiff’s injury as a as “right fifth finger flexor deformity”.[81]
[81]T82, also the October 2014 report where Dr Kosmidis added three further medical conditions to this list
239 Counsel for the plaintiff made “subsidiary” submissions in relation to the sub-s(a) application as the plaintiff was “substantially reliant” on the application pursuant to ss(c).[82]
[82]T100
240 Reliance was placed on Mr Stapleton’s view, that it was the plaintiff’s whole right hand, not just the little finger that was impaired.[83] Mr Stapleton concluded that the plaintiff’s injury would have a significant effect on all his activities, particularly as he is right handed.[84] Further, Mr Stapleton noted the plaintiff had problems flexing the finger and the power of his grip was very much diminished.[85]
[83]T101
[84]T100
[85]T101
241 It was submitted the plaintiff should be accepted in terms of his pain complaint, that it is not just the little finger that is painful, but the main part of his right hand on the opposite side of his palm, as he indicated in the witness box.[86]
[86]T103
242 In response to the suggestion the plaintiff made little complaint of ongoing finger problems, it was submitted there were consistent entries in Dr Kosmidis’ notes as late as April 2014 of problems with the right fourth and fifth fingers; problems with the fingers catching; pain in the right hand as well as the fingers; prescription of Endone to deal with the pain in July and November 2013[87] and Mobic being trialled as at 14 April 2014 when Panadol was not very effective.[88]
[87]T102
[88]T103
243 It was submitted the general practitioner, Dr Kosmidis, was the appropriate person to whom the plaintiff would make complaints, not to his psychiatrist as the plaintiff explained.[89]
[89]T103
244 Further, there is medical opinion that the plaintiff’s hand injury restricts his employment capacity.
245 Dr Kosmidis, in 2016, thought the plaintiff could not do manual work due to his ongoing hand pain.
246 Dr Slesenger thought from a physical point of view, given the plaintiff’s work background and his hand injury, he could work no more than 16 hours a week, which it was submitted was his maximum capacity compared to a pre-injury capacity of full time work.[90]
[90]T103
247 It was also submitted there were substantial consequences of the hand injury in relation to pain and suffering relating to domestic and social activities as described by the plaintiff in his affidavits and confirmed by his wife who was not cross-examined.[91]
[91]T104
Psychiatric impairment
248 In this case, where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the incident is severe and permanent.
249 In Petkovski v Galletti,[92] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[92](Supra) followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
250 It is clear from Dr Tuncer’s notes and also the history given by the plaintiff to various medical examiners that from 1992 he has had a range of psychiatric problems requiring treatment on and off over the following years and continuing as at the incident date.
251 In cross-examination, the plaintiff freely conceded that he had these difficulties but said he was able to manage with his life and work before the incident.
252 Counsel for the defendant submitted the incident related aggravation was not severe.
253 It was submitted that the plaintiff’s psychiatric problems “were all there” from 1992 in various forms, with the plaintiff having difficulty sleeping, frequently awakening, feeling anxious, tired, having low energy, depressive mood and feelings of helplessness, low motivation and being apprehensive about the future.[93] This was the situation in November 2011 immediately before the incident injury and it was submitted that is what is happening by and large today. It was very difficult to disentangle “all of that” and attribute specific consequences to the right hand injury.[94]
[93]T91
[94]T92
254 Reliance was placed on Dr Tuncer’s note of 22 September 2011 that the plaintiff then attended feeling tired and had low energy and had problems with manual work. It was submitted the plaintiff at that stage was reaching a level of exhaustion and the incident injury was “the straw that broke the camel’s back.[95] Further, the plaintiff was then having problems of tiredness due to sleep apnoea.[96]
[95]T88
[96]T89
255 It was submitted the plaintiff’s symptoms described by Dr Kosmidis in July 2013 “were a repetition of the pre incident scenario.”[97]
[97]T82
256 It was submitted that the plaintiff’s own description of the incident and his nervousness at the time thereof was indicative of someone “without a clean bill of psychiatric health pre incident.”[98]
[98]T89
257 Counsel for the defendant submitted that it could not be said employment consequences were severe as the plaintiff’s work history before the incident was irregular and could only be referrable to the period of employment with Prosec for eighteen months or so.[99]
[99]T87
258 Further, the plaintiff had longstanding back issues as confirmed by Dr Kosmidis in 2004.[100]
[100]T88
259 Counsel for the defendant submitted none of the medico legal psychiatric examiners considered any incident related aggravation of the plaintiff’s psychiatric condition was severe.
260 Dr Weissman described any aggravation as moderate, noting that it was generally accepted the plaintiff, pre injury, suffered a generalised anxiety disorder and depressive symptoms.[101]
[101]T84
261 In his most recent report having been provided with a full set of Dr Tuncer’s notes, Dr Jager described the plaintiff’s anxiety being mildly worse post incident and that there had been no relevant change in the severity of the depressive symptoms.[102]
[102]T85
262 Dr Stern, having been provided with this additional material, concluded there was a moderate aggravation resulting from the incident.[103]
[103]T86
263 In response, counsel for the plaintiff relied largely on the employment consequences of the incident injury, submitting they were severe.
264 Reliance was placed on the fact the plaintiff was working full time in the 2010/11 financial year and earned $46,000 and for the part of the following year, pre injury, he earned $15,600. The plaintiff had progressed from part time to full time work with Prosec and after losing that job, secured other employment almost immediately.[104]
[104]T92
265 It was submitted Dr Tuncer was best placed to comment on the impact of the incident on the plaintiff’s psychological state. He had known the plaintiff and treated him for years regularly beforehand. He was seeing him before the incident and knew about his work situation.
266 Dr Tuncer considered from mid 2012, psychiatrically the plaintiff was not able to work. He thought the incident injury was a cause of the plaintiff being unable to work for the foreseeable future. He knew that the plaintiff was able to function in the workplace during 2011, in his employment before he started with the employer.[105]
[105]T94
267 It was submitted Dr Tuncer’s note of September 2011 actually assisted the plaintiff. It did not indicate the plaintiff was trying to give up or about to give up work. To the contrary, he was worried about his work future. The note referred to his difficulty doing heavy work such as concrete breaking and making roads and how he managed his job as a security officer much better.[106]
[106]T95
268 Further, reliance was placed on the plaintiff’s first attendance post incident where Dr Tuncer noted he was anxious about whether he would be able to work in the future. On the next consultation, Dr Tuncer noted the plaintiff was anxious about whether his right hand would function as it had before the injury.[107]
[107]T95
269 In terms of present severity of the plaintiff’s psychiatric condition, Dr Tuncer is one of three psychiatrists of the view the plaintiff is now unable to work on psychiatric grounds alone.
270 As Dr Weissman noted, before the incident, there was a mild to moderate chronic Major Depressive Disorder and generalised anxiety disorder but the plaintiff had full psychiatric capacity for work.[108] He considered the plaintiff now does not have a capacity for employment on psychiatric grounds and that he also has additional symptoms relating to PTSD that were not present pre incident.[109]
[108]T96
[109]T97
271 Dr Weissman was also of the view the plaintiff would not be able to retrain or rehabilitate. Further, as Dr Weissman noted, the plaintiff’s previous psychiatric condition has made it more difficult for him to deal with the incident injury.
272 Counsel for the plaintiff also relied on Dr Jaeger’s initial view that the plaintiff is totally incapacitated on psychiatric grounds and the fact he did not change that opinion in his second report.[110]
[110]T99
273 I accept that as a result of the incident, the plaintiff suffered an aggravation of his previous psychiatric problems and there are new features of traumatisation, which whilst not fulfilling the full diagnosis of PTSD are components thereof as Dr Weissman opined.
274 There is no evidence that pre incident there was any significant interference with the plaintiff’s activities of daily living as a result of his ongoing psychiatric problems although he was having ongoing treatment on a regular basis and taking Lexapro.[111]
[111]Sixteen times in the year before
275 Significantly, as Dr Tuncer confirmed, the plaintiff was fully fit from a psychiatric point of view to undertake full time duties for the 18 months or so prior to the incident date.
276 Whilst reliance was placed on Dr Tuncer’s note of September 2011 detailing a range of physical problems the plaintiff had, particularly with his lower back, there was no suggestion in that note that the plaintiff had any intention of stopping work or that he was breaking down as counsel for the defendant submitted.[112] In fact, the plaintiff continued working in that role and then obtained the new job in which he was injured the first day he worked.
[112]T95
277 I accept that the plaintiff was a motivated man and was keen to work. He tried to do so in the 2009-2010 taxi driving but only had limited success because of his back condition. However, he was able in the 2009-2010 financial year to obtain part-time security employment which then became full time with Prosec.
278 As the plaintiff’s treaters and all medico-legal examiners who have expressed a view as to the plaintiff’s work capacity, post incident, the plaintiff does not have a capacity from a psychiatric point of view to return to pre injury or suitable duties.
279 This is a severe consequence for the plaintiff.
Loss of earning capacity
280 Having satisfied the narrative requirements 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 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
281 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.
282 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
283 “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.
284 It 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.
285 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.[113]
[113]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
286 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
287 There was some debate as to what was the appropriate “without injury” earnings figure, with counsel for the plaintiff relying on the $46,000 earned in the full financial year before the incident. Counsel for the defendant submitted a much lower figure was appropriate, given the plaintiff’s low income in 2008 to 2010 before getting the security job.
288 I am satisfied, however, that the figure that most accurately fairly reflects the plaintiff’s earnings but for injury is that relied on by his counsel being his demonstrated capacity to earn in the period immediately preceding the incident.[114]
[114]The Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292
289 In any event, the figures are not particularly relevant in the present case as I accept the medical evidence that the plaintiff has no capacity for suitable employment as a result of the aggravation of his psychiatric condition in the incident. In those circumstances, he has lost the requisite 40 per cent.
290 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
291 Counsel for the defendant submitted the plaintiff had not discharged the onus pursuant to sub‑s(g) having not sought to retrain or sought rehabilitation.[115]
[115]T90
292 However, in light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 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 s134AB(38)(g).
293 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity as Dr Weissman opined.[116]
[116]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph 147; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170; T100
294 In my view the plaintiff’s prognosis is poor and I consider his psychiatric impairment is permanent.
295 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
296 In light of my finding in relation to the ss(c) application, I am not required to determine the application pursuant to ss(a).
- - -
0
10
0