Coskun v Victorian WorkCover Authority
[2023] VCC 507
•21 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01097
| ALIOSMAN COSKUN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 October 2022 | |
DATE OF JUDGMENT: | 21 April 2023 | |
CASE MAY BE CITED AS: | Coskun v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 507 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left knee injury – consequential psychiatric injury – disentanglement – economic loss – pain and suffering – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Mobilio v Balliotis (1998) 3 VR 833; Stevens v DP World Melbourne Ltd [2022] VSCA 285; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave to the plaintiff to bring common law proceedings for “pain and suffering” and “economic loss” damages in respect to a left knee injury suffered on or about 19 August 2019; leave to the plaintiff to bring common law proceedings for “pain and suffering” damages in respect of psychiatric injury. Application for economic loss certification for psychiatric injury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico with Ms R Heffernan | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G K Coldwell | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Mr Aliosman Coskun, was employed by Globe West as a storeman. He commenced in this employment in April 2018.
2On 19 August 2019, Mr Coskun suffered an injury to his left knee while he and a workmate were carrying a large and heavy table down a ramp (“the accident”).
3Mr Coskun is a single man. He is 37 years of age. He resides with his mother and brother in the family home.
4After leaving school, Mr Coskun:
· Studied a Bachelor of Biomechanical Science at RMIT for about eighteen months before discontinuing.
· Worked as a storeman, forklift driver and office assistant while attending RMIT.
· After discontinuing at RMIT, worked as a stonemason for about eighteen months.
· Resumed study at La Trobe University, undertaking a Bachelor of Accounting. Again, after about eighteen months, he discontinued that course.
· Returned to work as a storeman. This time with Transport Management Solutions (“TMS”). He remained in that employment for about five years before resigning.
· After leaving TMS, had undertaken what he described as “odd jobs” for about six months.
5It is then that he commenced working with Globe West.
6Mr Coskun’s father died in tragic circumstances in February 2018. As a result of that event, Mr Coskun suffered psychiatric distress. Mr Coskun had one week off work after his father’s death. Subsequently, he was diagnosed as suffering Post-Traumatic Stress Disorder (“PTSD”).
7After the accident, Mr Coskun was off work for about six months. He then returned to work at Globe West on modified duties and restricted hours. Mr Coskun had further periods off work after undergoing surgery by way of:
(a) An open quadriceps repair, ligament reconstruction and arthroscopy of his left knee on 4 September 2019;
(b) An arthroscopy with lateral release and stabilisation of his left knee on 12 December 2020;
(c) An arthroscopy with lateral release and stabilisation of his right knee on 10 April 2021.
8Each of the procedures were paid for by the Victorian WorkCover Authority (“VWA”), the authorised insurer for Globe West.
9After the procedure performed on 10 April 2021, Mr Coskun returned to work with Globe West in or about May 2021.
10Despite being on restricted duties/limited hours, Mr Coskun continued to experience knee pain.
11Mr Coskun’s employment with Globe West was terminated in May 2022. He said, at that time, because of his pain and restriction, he was only able to work two days a week for four hours per day.
12Mr Coskun has not returned to any work since May 2022.
13Mr Coskun said that, as a result of the pain and restriction in his left knee, he developed an Adjustment Disorder with Depressed Mood and Anxiety.
14Mr Coskun said that both his left knee injury and his consequential psychiatric injury were “serious injuries” for both pain and suffering and economic loss purposes.
15The VWA agreed that Mr Coskun’s left knee injury was a “serious injury” for the purposes of pain and suffering; however, the VWA said that Mr Coskun’s left knee injury was not a “serious injury” for the purposes of economic loss. They said that Mr Coskun could do a range of work and had not lost 40 per cent of his “without injury” earnings. The VWA also said that Mr Coskun’s psychiatric injury, consequential to the accident, was not a “serious injury” for the purposes of either pain and suffering or economic loss.
The nature of this proceeding
16This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Coskun relies on both paragraphs (a) and (c) of the definition of “serious injury” in s325(1) of the Act. That is:
(a) his left knee injury is a “permanent serious impairment or loss of body function”; and
(b) his psychiatric injury is a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
17For Mr Coskun to be successful, he must establish that the consequences from his alleged injuries, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
18Further, in applications for serious injury based on psychological or psychiatric conditions, the injury must be “severe” to produce “very considerable” pain and suffering consequences.[1]
[1]Mobilio v Balliotis (1998) 3 VR 833
19For Mr Coskun to satisfy the “very considerable” loss of earning capacity consequences, he must satisfy the statutory formula contained in ss325(2)(e), (f) and (g) of the Act. That is:
(a) he has a loss of earning capacity of 40 per cent of gross earnings, and
(b) that loss will be permanent.
The issues
20The VWA conceded that Mr Coskun’s left knee injury was a serious injury for pain and suffering purposes. Indeed, it is clear from the overwhelming weight of the medical evidence that Mr Coskun has a very painful left knee with significant functional restriction.
21It is the consequences of this left knee injury in terms of economic loss and the nature and consequence of any secondary psychiatric condition which remain in dispute. Thus, the issues for the Court to determine include:
(a) as to Mr Coskun’s credit and as to whether I can accept his evidence;
(b) which of the medical opinions should be accepted and the assistance they provide;
(c) what, if any, assistance is provided by the vocational assessment and indicative wage rate reports;
(d) whether the consequences of Mr Coskun’s left knee injury results in an economic loss to him of 40 per cent or more;
(e) whether or not Mr Coskun’s psychiatric injury satisfies the serious injury test for the purposes of:
(i)pain and suffering;
(ii)economic loss.
Mr Coskun’s credit
22As in a great number of cases of this kind, the credit of Mr Coskun is critically important. The VWA said Mr Coskun’s credit had been impugned and his evidence on many critical issues could not be accepted.
23The attack included assertions:
(a) that his psychiatric injury was either totally or significantly a consequence of his father’s suicide, and that he had not provided accurate histories to the medico-legal assessors;
(b) that he had a greater capacity for work than he was prepared to admit and there was no proper basis for his failure to seek and obtain work.
24Ms Frederico, counsel for the plaintiff, said that Mr Coskun should be accepted by the Court as a witness of credit. She said that Mr Coskun made appropriate concessions, was reliable and honest, and I should accept what he said.
25Ms Frederico also said that the VWA had obtained video surveillance of Mr Coskun, but this film was not produced to the Court. Ms Frederico said that I should make an inference that such video would not have assisted the VWA’s case. She said, in those circumstances, I should be comfortable in accepting Mr Coskun’s evidence in respect to his day-to-day activities and level of disability.
26Much of the VWA’s attack on Mr Coskun’s credit involved matters which touched upon:
· The nature, cause, extent and impact of his psychiatric injury.
· His motivation, capacity and willingness to return to work.
· His presentation in court.
27The impact of an injured worker’s psychiatric injury upon their presentation to the court was recently analysed by the Court of Appeal in Stevens v DP World Melbourne Ltd.[2]
[2][2022] VSCA 285
28The Court, in that matter, made it very clear that it is incumbent upon me, when considering the credit and reliability of an injured person’s evidence, to analyse the effect (if any) of their psychiatric illness on their presentation.[3] Indeed, it was my observation that Mr Coskun appeared to be lacking in motivation, pre-occupied with pain, have a flat affect, and be at times dismissive. Thus, the consequences of Mr Coskun’s psychiatric injury and its impact upon his presentation is a matter which is important to my determination.
[3]Ibid at paragraph [44]
29I will therefore undertake my analysis of the medical evidence before completing my comments and findings in respect to Mr Coskun’s credit and moving on with my determination.
The medical evidence
Mr Coskun’s treating medical practitioners
Dr Han Shin Lim ꟷ general practitioner
30Mr Coskun has consulted Dr Lim since the accident. Dr Lim practises at the Dandenong Superclinic. There were numerous reports from Dr Lim in evidence. Mr Coskun has also consulted other general practitioners at that practice.
31Indeed, on the day of the accident, Mr Coskun consulted Dr Ben Chan. It was Dr Chan who referred Mr Coskun to Mr Ikram Nazim, orthopaedic surgeon. Mr Coskun saw Mr Nazim the next day.
32Dr Lim, in his report of 24 April 2020, said that as a result of a workplace accident, Mr Coskun was suffering:
· A left knee injury which resulted in surgery on 4 September 2019.
· Increasing depression.
33Dr Lim said he was concerned that Mr Coskun was angry, upset and emotionally labile.
34Dr Lim advised that he had referred Mr Coskun to:
(a) Dr Geoffrey Hogan, psychiatrist;
(b) a psychologist at Psychology 4 Change;
(c) Dr Ali Kian Mehr, rehabilitation physician.
35In his proforma “comprehensive WorkSafe report” of 14 May 2020, Dr Lim outlined in greater detail the issues which Mr Coskun was having with:
· Left leg pain
· Functional restriction
· Poor sleep
· Weight gain
· Anxiety and depressed mood.
36Dr Lim advised the VWA that he was not writing out the certificates of capacity for Mr Coskun (his physiotherapist, Mr Dushyant Pundir, was) but stated that, in his opinion, the barriers which precluded Mr Coskun returning to work included his chronic pain and deteriorating mental health.
37At that time, Dr Lim said Mr Coskun needed to be referred for further specialist assessment and treatment.
38The most recent report from Dr Lim is dated 23 November 2021. At this time, Dr Lim considered Mr Coskun had some work capacity, subject to:
· The need to sit/stand
· Being a sedentary-light job
· The work demands being “very flexible”.
39Dr Lim noted that Mr Coskun was working pursuant to the restrictions specified by Dr Boffa, rehabilitation physician (being four hours per day, three days per week). Dr Boffa had assessed Mr Coskun for the VWA. Dr Lim again confirmed the need for Mr Coskun to be assessed and treated by a range of specialists.
40As a part of his management of Mr Coskun, Dr Lim referred him to:
(a) Mr Ikram Nizam, orthopaedic surgeon, for review;
(b) Dr Ali Kian Mehr, rehabilitation physician;
(c) Dr Meena Mittal, pain physician;
(d) Dr Kilner Brasier, occupational physician;
(e) Mr Dushyant Pundir, physiotherapist;
(f) a group of practitioners at Network Pain Management.
41The referrals outlined by Mr Lim are consistent with Mr Coskun’s evidence.
Mr Ikram Nizam ꟷ orthopaedic surgeon
42Mr Nizam first saw Mr Coskun on 20 August 2019, the day after the accident. In his letter back to Dr Chan, he said:
“Thank you for referring this gentleman who had a work related injury where he works as a storeman in Springvale, when he was carrying a box yesterday and her (sic) tripped and fell backwards and twisted his knee at the same time. He couldn’t get up or straighten his knee. Subsequently, clinically he had a left patella[r] tendon rupture and he is unable to leg raise and he also has tenderness over the medial joint line of his left knee which is suspicious of medial meniscal pathology and chondral damage in the knee. MRI is only up to the patella, which reveals complete rupture of the quadriceps tendon and of tissue structures around that area. I have sent him off for another MRI to confirm the meniscal tearing and we will go ahead with an arthroscopy, left knee and proceed the open repair of quadriceps tendon/ligament repair/reconstruction, at the same time with new ligaments.”[4]
[4]Plaintiff’s Further Amended Court Book (“PCB”) 88
43The further MRI scan ordered by Mr Nizam, which was performed on 22 August 2019, revealed:
“… [a] full-thickness rupture of the quadriceps tendon with extensive haemorrhage and fluid within the prepatellar bursa. Cruciate ligaments were intact, however, there was multifocal full-thickness cartilage loss and irregularity with an intraarticular loose body in the medial gutter.”[5]
[5]PCB 113
44It is clear that Mr Coskun suffered a very significant injury to his left knee in the accident.
45On 4 September 2019, Mr Nizam undertook the surgery at Mulgrave Private Hospital. Mr Nizam said he undertook an open quadriceps repair and arthroscopy. Mr Nizam noted a microfracture and cartilage damage in the medial femoral condyle.[6]
[6]PCB 113
46By reason of ongoing pain and restriction, Mr Coskun was referred back to Mr Nizam in May 2020. On examination on 25 May 2020, Mr Nizam found patellofemoral joint crepitus and mild lateral tracking with patellofemoral joint irritation.[7]
[7]PCB 114
47Mr Coskun was again examined by Mr Nizam on 14 September 2020. At that time, he noted Mr Coskun was still having issues with lateral patellofemoral joint irritation and tracking in the left knee. This was affecting his walking and his work duties. Mr Nizam recommended further left knee surgery.[8]
[8] PCB 99
48On 22 October 2020, Mr Nizam noted problems in Mr Coskun’s right knee, for which he also recommended surgery.
49Mr Nizam referred Mr Coskun to an occupational therapist for pre-operative management.
50On 12 December 2020, Mr Coskun underwent the further left knee surgery. This took the form of a left knee arthroscopy and lateral release.[9] The findings at the time of the surgery included:
“PFJ compartment: grade 3 changes CMP + Lateral tilt and tracking - chondroplasty + lateral release / stabilisation
Medial meniscus: intact
Medial compartment: grade 3 changes and unstable flaps medial femoral condyle chondroplasty
Lateral meniscus: intactLateral compartment – chondroplasty LFC
ACL and PCL: intact.”[10]
[9]PCB 102
[10]PCB 102
51On 10 April 2021, Mr Coskun underwent the right knee surgery. In respect to the relationship between the accident and Mr Coskun’s right knee issues, Mr Nizam said:
“… Most likely, the right knee issue was indirectly related to the left knee injury as he was taking most of his weight on the right knee over at least three months plus after the rehabilitation process from his left knee surgery.”[11]
[11]PCB 114
52In March 2022, scanning of Mr Coskun’s left knee revealed degenerative change. Mr Nizam said that, given the accident, this was expected.[12]
[12]PCB 115
53On 19 May 2022, Mr Nizam injected Mr Coskun’s left knee with Monovisc.
54In his most recent report of 9 June 2022, Mr Nizam said that Mr Coskun’s symptoms:
“.. .are mainly that of chondromalacia patella and lateral tilt and tracking with some osteoarthritic changes in the knee which is expected from any knee injury… .”[13]
[13]PCB 116
55Mr Nizam said Mr Coskun’s left knee restrictions included:
· Restrictions in bending, lifting and twisting
· Restrictions in kneeling, squatting and crouching
· A limited capacity for prolonged sitting
· A limited capacity for prolonged walking and standing
· An impairment for walking up inclines and/or down declines
· An impairment for walking over uneven ground
· An impairment for using stairs, steps or ladders
· An impairment for other physical functions such as sudden twisting or rising up from a seated position
· A limitation in carrying heavy weights.
56Mr Nizam said that these incapacities will persist through the foreseeable future.[14]
[14]PCB 116
57In respect to work capacity, Mr Nizam said that Mr Coskun was most likely suited for work as a warehouse administration assistant or logistics clerk, rather than any of the other occupations that had been suggested. He said it would be better for Mr Coskun to work four hours a day, up to three times per week.[15]
[15]PCB 116
58Mr Nizam recommended that Mr Coskun continue with strengthening physiotherapy and hydrotherapy which may help improve function and prolong the need for knee replacement or knee surgery.[16]
[16]PCB 116-117
Dr Ali Kian Mehr ꟷ rehabilitation medicine and neurophysiology
59Dr Mehr first consulted Mr Coskun in May 2020. That is, after the first left knee surgery. At that time, on clinical examination, Dr Mehr found that Mr Coskun:
· Had an antalgic gait
· Could not toe walk or heel walk due to pain
· Had difficulty squatting
· Suffered a restriction in range of motion
· Had a 6-centimetre muscle quadriceps atrophy on the left side and a 7‑centimetre proximal to proximal pole of the patella.[17]
[17]PCB 47
60Dr Mehr diagnosed Mr Coskun as suffering –
“Chronic postoperatively persistent left knee pain with weight restriction of range of motion and quadriceps atrophy.”[18]
[18]PCB 47
61On 5 June 2020, subsequent to further MRI scanning, Mr Coskun again consulted Dr Mehr. Dr Mehr said the left knee MRI showed:
“… the left knee, patellar reconstruction is intact. There is popliteal tendinosis, quite pronounced distal quadriceps tendinosis and focal area grade 3 chondromalacia and median process patella.”[19]
[19]PCB 49
62Dr Mehr suggested Mr Coskun should undergo a left knee geniculate nerve block and pulsed radiofrequency neurotomy. If that were not successful, Dr Mehr said that Mr Coskun could potentially undergo further arthroscopic surgery.
63Mr Coskun re-attended Dr Mehr on 17 September 2021. Mr Coskun was still having significant left knee problems. At that time, Dr Mehr noted that Mr Coskun had been seeing Dr Meena Mittal, pain physician, and had undergone the geniculate nerve block. Dr Mehr felt that Mr Coskun should proceed with neuromodulation. He noted Mr Coskun did not wish to undergo that procedure.
64On 15 March 2022, Mr Coskun attended Dr Mehr. Dr Mehr prescribed Mr Coskun Tramadol IR, 50 milligrams as needed, to enable him “to participate in activities”.[20] This was in addition to the other prescribed medications:
· Naproxen, 750 milligrams daily
· Gabapentin, 200 or 300 milligrams nocte
· Panadol Osteo, two tablets bd
· Lexapro, 30 milligrams
· Melatonin, 2 milligrams.
[20]PCB 53
65On 13 May 2022, Dr Mehr again met with Mr Coskun. At that time, he found wasting in the left leg. Dr Mehr noted Mr Coskun’s pain was under better control, but he was having problems sleeping, mostly due to stress and anxiety. Dr Mehr increased the Gabapentin to 600 milligrams at night.
66The last report from Dr Mehr is dated 14 July 2022. At that time, Mr Coskun had completed an assessment with a pain management program team.[21] The pain management team had advised that Mr Coskun ought not proceed to the suggested pain management program. They had concluded that they did not have much to add to the treatment that Mr Coskun was already receiving for the management of his pain.[22]
[21]The Network Pain Management assessment. This report is referenced later in this judgment.
[22]PCB 56
67Dr Mehr concluded that Mr Coskun’s condition was stable and will not change in the foreseeable future.[23]
[23]PCB 56
Dr Meena Mittal ꟷ pain physician
68On 15 July 2020, Dr Mittal first examined Mr Coskun.
69On examination, she found there was quadriceps muscle wasting on the left leg. She considered Mr Coskun’s left knee pain was most likely secondary to ongoing inflammation. Dr Mittal recommended a left geniculate nerve block.
70On 30 April 2021, after the December 2020 left knee surgery had been undertaken by Mr Nizam, Dr Mittal noted Mr Coskun suffered:
“Left sided knee pain. The pain appears to be both a combination of mechanical pain as well as neuropathic pain. He describes an area of numbness in the anterior region associated with a sensation of cold and the pain is rated at 8-9/10. The pain can be exacerbated particularly by walking upstairs but it can also be spontaneous in the middle of the night. He has not noticed any significant colour change but there is intermittent swelling. His range of motion has certainly improved after his most recent surgery but he continues to be limited by pain. There is still limitation due to weakness.”[24]
[24]PCB 79
71At review on 19 May 2021, Dr Mittal noted that the nortriptyline, which Mr Coskun had been trialling, had resulted in some agitation, anxiety and insomnia for three days. On this day, it was decided Mr Coskun would undertake the left genicular nerve block.
72That procedure was undertaken by Dr Mittal on 3 August 2021. Dr Mittal noted that to be a negative diagnostic test and suggested a spinal cord stimulator and DRG (dorsal root ganglion) distillation to manage Mr Coskun’s pain.[25] Dr Mittal also advised Mr Coskun to see Mr Nizam again to discuss whether there was any form of further surgical intervention which may be of assistance.
[25]PCB 83
Dr Kilner Brasier ꟷ occupational physician
73Dr Brasier first met with Mr Coskun on 31 March 2022. At that time, Dr Brasier said:
“Mr Coskun complains of constant left knee pain aggravated by any heavy use of the knee. It causes him to limp and he has lost considerable strength in the left knee. He also complains of left right sided back pain.
With respect to his tolerances, his walking is limited to about 30 to 35 minutes, his sitting to only 20 minutes and he struggles negotiating stairs.
He is unable to run at all.”[26]
[26]PCB 67
74On examination, Dr Brasier found that Mr Coskun’s left quadricep mechanism was “severely wasted”.[27] In respect to work, Dr Brasier said:
“In my opinion, Mr Coskun has no current work capacity for his preinjury duties.
He is currently working four hours Wednesday and Friday for a total of eight hours and is not driving a forklift. His restrictions would seem appropriate in my opinion.
Further, I do not believe he has any capacity to increase his hours at this time ... .”[28]
[27]PCB 69
[28]PCB 69
75The most recent report from Dr Brasier is dated 21 July 2022, following a consultation on that day.
76At this time, Dr Brasier noted that Mr Coskun “remained fairly stressed and anxious”.[29] On examination, Dr Brasier found that Mr Coskun was suffering “significant weakness in his left leg”.[30] Dr Brasier also said that Mr Coskun was relying fairly heavily on his right leg and was having ongoing problems with his right knee.
[29]PCB 73
[30]PCB 73
77In respect to work, Dr Brasier said:
“In my opinion, Mr Coskun has no current work capacity for his pre-injury duties or suitable duties.”[31]
[31]PCB 73
Mr Dushyant Pundir ꟷ physiotherapist
78Mr Pundir continues to provide Mr Coskun with certificates of capacity.
79There was a bundle of certificates of capacity dated between 5 January 2022 and 27 September 2022.[32] In each certificate, Mr Pundir certified Mr Coskun’s work and functional restrictions to be:
“standing not more than 1 hour
lift not more than 5 kg
don’t bend more than knee levelno repetitive stairs
working 4 hours twice a week”.[33]
[32]Defendant’s Amended Court Book (“DCB”) 5-18
[33]DCB 5, 7, 9, 11, 13, 15 and 17
80The restrictions identified in Mr Pundir’s certificates of capacity are consistent with the hours and duties which Mr Coskun was undertaking at the time his employment with Globe West was terminated in May 2022.
Network Pain Management
81A proforma WorkSafe Victoria assessment report and treatment plan was provided from Network Pain Management dated 18 July 2022. This is a joint report from Ms Emel Ahmet, health psychologist; Mr Brenton May, physiotherapist, and Dr Shahram Sadeghi, pain specialist.
82Regrettably, the contents of this report are largely indecipherable. I note from that part of the report which was legible, that it was concluded that Mr Coskun was currently well supported, and it was considered he was better suited to ongoing pain management with his current providers.[34]
[34]PCB 121
Dr Geoffrey Hogan ꟷ consultant psychiatrist
83Mr Coskun consulted Dr Hogan once on 7 June 2020. In his reporting correspondence to Dr Lim, Dr Hogan provided a detailed history of Mr Coskun’s accident and the ongoing consequences which flowed from that. Dr Hogan also noted Mr Coskun’s father’s suicide.
84Dr Hogan concluded that Mr Coskun presented with an employment-related psychiatric injury. He considered, diagnostically, that Mr Coskun suffered an Adjustment Disorder with Depressed Mood of moderate severity. Dr Hogan believed a trial of antidepressants was indicated.[35]
[35]PCB 66
The medico-legal opinions
The left knee injury
85I shall review the medico-legal reports in respect to Mr Coskun’s left knee injury in chronological order.
Dr Sam Soliman – occupational medical consultant
86Dr Soliman assessed Mr Coskun for the VWA on 19 December 2019. Dr Soliman also attended at Mr Coskun’s workplace. At that time, Mr Coskun was working eight hours per day, three days per week (noting this was prior to the December 2020 and April 2021 knee surgeries).
87At the time of his assessment, Dr Soliman concluded Mr Coskun could not return to his pre-injury duties. Dr Soliman said that Mr Coskun did have the capacity for suitable duties. Dr Soliman thought Mr Coskun could “return to his pre-injury duties in 2-3 months as tolerated”.[36]
[36]DCB 23
88There was no update assessment from Dr Soliman.
Dr Umberto Boffa – occupational physician
89Dr Boffa assessed Mr Coskun for the VWA on 31 August 2021. This was subsequent to the further knee surgery. At that time, Mr Coskun had made a partial return to work.
90Dr Boffa recorded that Mr Coskun was two years post a left quadriceps ligament reconstruction with infrapatellar neuropathy and aggravated right knee osteoarthritis.
91Dr Boffa considered Mr Coskun’s conditions had been materially contributed to by the accident.
92Dr Boffa noted Mr Coskun had made a partial return to work on restricted duties. He considered Mr Coskun had a capacity to work for four hours per day, three shifts per week, on non-consecutive days. Dr Boffa suggested a review in six months’ time if Mr Coskun had not progressed to full-time work.
93There was no update assessment from Dr Boffa.
Dr Mary Wyatt – occupational physician – first report
94Dr Wyatt assessed Mr Coskun on two occasions at the request of the VWA.
95In her first report dated 22 December 2021, Dr Wyatt considered Mr Coskun’s clinical findings on examination correlated with radiological and other medical information provided. She said there were no inconsistencies in Mr Coskun’s presentation.[37]
[37]DCB 63
96At that time, Dr Wyatt did not identify any evidence of a pain disorder.[38]
[38]DCB 63
97Dr Wyatt did not consider that Mr Coskun could return to his physically-demanding pre-injury duties. Dr Wyatt did consider Mr Coskun fit for full-time hours in suitable employment. Dr Wyatt considered that Mr Coskun could undertake the jobs set out in the VWA vocational assessment reports. Dr Wyatt considered that rehabilitation would be sensible to help Mr Coskun consider other long-term work options.
Dr Eman Awad – occupational physician
98Dr Awad examined Mr Coskun at the request of his solicitors on 19 September 2022. Dr Awad was provided with the first report from Dr Mary Wyatt, the 130-week Work Able Vocational Assessment and the Nabenet vocational assessment report.
99On examination, Dr Awad noted Mr Coskun suffering left knee crepitus, marked left quadriceps wasting and reduced left knee power.[39] Dr Awad also noted right knee abnormality, which he said was contributed to because of overcompensation due to the left knee injury.[40]
[39]PCB 147
[40]PCB 147
100Dr Awad considered Mr Coskun was medically unfit for undertaking his pre-injury duties. In respect to modified duties, he said:
“… he should be permanently medically restricted from undertaking any roles which require him to squat, kneel, bend, push, pull or carry any weight over 5-10 kg. In my view, he would best be placed avoiding all physical manual labour as this is likely to cause aggravation and accelerate the deterioration in his knees. It may be possible that Mr Coskun can be retrained to undertake a sedentary role, however, when talking into consideration his reduced cognitive state, his pain, his fatigue, then on balance he is unlikely to ever be able to complete full-time employment maximally undertaking work on alternative non-consecutive days to allow him to recover and no more than four hours of work with even this being possibly unsustainable. He is likely to be an individual who has a higher than average sickness absence rate which his recurrent making him unreliable and inconsistent in any form of employment. Even if he was to be retrained to a sedentary or office type based work, he is likely to need lifelong adjustments which would limit his choices of employment as an employer would need to be willing to implement these changes in the long term.”[41]
(sic)
[41]PCB 147
101Dr Awad reviewed the various jobs outlined in the VWA vocational assessments. Dr Awad concluded that Mr Coskun “will not be able to undertake any of the jobs listed”.[42]
[42]PCB 149
102Dr Awad outlined his reasons, which included:
“… This is due to his symptoms of pain, fatigue and his functional incapacity. It is unlikely he would be able to undertake more than 12-15 hours per week maximally working nonconsecutive days even if the role was suitable. Even with these adjustments, he is likely to be an unreliable employee as he is at high risk of increased sickness absence that is recurrent due to his symptoms of pain and dysfunction. He certainly should not undertake any roles that require prolonged standing, sitting, crouching, bending, squatting, kneeling or carrying as these are all likely to exacerbate and cause a further deterioration of his symptoms.”[43]
[43]PCB 149
Dr Mary Wyatt – second report
103Dr Wyatt re-assessed Mr Coskun for the VWA on 3 October 2022.
104Dr Wyatt noted that, since her previous assessment, Mr Coskun’s employment had ceased. She noted that he had lowered mood and that his antidepressant medication had been increased.
105Dr Wyatt, in her assessment, said the history of injury was “confusing”.[44]
[44]DCB 69
106Dr Wyatt noted that Mr Coskun “reported mental ill health”[45] and was on antidepressant medication.
[45]DCB 70
107In respect of the future, Dr Wyatt said:
“The most likely scenario is that Mr Coskun will develop increased osteoarthritis in the coming decade. He seems to be indicating the requirement for knee replacement surgery would interfere with him re-entering the workforce. However, his specialist is talking about this in the years to come, rather that it being imminent.”[46]
[46]DCB 71
108In respect to work, Dr Wyatt said it was not sensible for Mr Coskun to return to his normal job, noting the demands.[47] Dr Wyatt did, however, consider Mr Coskun would be fit for a range of less physical duties, where he is not standing for extended periods, is not required to walk long distances, and where he can change his position intermittently. She said climbing stairs repeatedly, or climbing ladders, is not recommended, and he should not be required to repeatedly kneel or squat.[48]
[47]DCB 71
[48]DCB 71
109Dr Wyatt said that Mr Coskun was fit for the various jobs outlined in the Work Able October 2021 report and the Nabenet 20 December 2021 report. These jobs included:
· Warehouse administrative assistant
· Warehouse manager
· Logistics clerical job
· Quality examiner
· Sales coordinator/hire controller
· Dispatch and receiving clerk
· Weighbridge operator
· Car sales.
[“the suggested jobs”].
110Dr Wyatt said Mr Coskun could work full time in each of the suggested jobs.
111Dr Wyatt, in respect to Mr Coskun’s motivation to return to work, said:
“Mr Coskun indicated his mental state is impacting his ability to consider work options. There does seem to be a reasonable degree of catastrophising about the knee issues.”[49]
(My emphasis)
[49]DCB 72
Mr Sam Patten – orthopaedic surgeon
112Mr Patten assessed Mr Coskun at the request of his solicitors on 5 October 2022.
113Having assessed Mr Coskun and considered the materials provided, Mr Patten said:
“My diagnosis of Mr Coskun’s left knee is that of an acute complete rupture of the quadriceps tendon, sustained in his work-related injury of 19 August 2019. This has been treated surgically with open repair. Mr Coskun has undergone subsequent arthroscopy and lateral release due to persisting symptoms. He now suffers from persisting left knee patellofemoral symptoms, resulting in a severe functional impairment of his left knee.”[50]
(My emphasis.)
[50]PCB 135
114Mr Patten did not consider Mr Coskun’s right knee problems would be, in the long term, consequential to his left knee injury.
115Mr Patten was concerned that Mr Coskun’s pain and restrictions were out of keeping following the surgery undertaken. Mr Patten felt further evaluation was warranted. Mr Patten considered that Mr Coskun’s left knee incapacity will persist into the foreseeable future unless effective treatment could be instigated.[51]
[51]PCB 137
116In respect to work restrictions, Mr Patten said:
“It would be imperative that Mr Coskun's job did not involve any lifting, physically demanding activities, or using stairs or sloped surfaces. His role should be predominantly desk-based and should not require regular walking or prolonged standing.”[52]
[52]PCB 138
117Having said that, and noting that Mr Coskun had a “severe functional impairment”, Mr Patten went on to say that he thought Mr Coskun was fit to undertake the suggested jobs on a full-time basis.
The psychiatric medico-legal opinions
118Mr Coskun pursued a common law nervous shock case arising out of the death of his father. In the course of that proceeding, he was referred to the Medical Panel.
119In the course of this application, the VWA put much emphasis on Mr Coskun’s father’s suicide and the consequential nervous shock case.
120I shall review the Medical Panel determinations and Reasons before considering each parties’ consultant psychiatric expert evidence.
The Medical Panel
121On 4 November 2021, Mr Coskun was assessed by the Medical Panel, which was constituted by Dr Sudeep Saraf, psychiatrist, and Dr Samari Jayarajah, psychiatrist.
122The history recorded by the Medical Panel outlined:
(a) the events leading to the death of Mr Coskun’s father;[53]
(b) the accident and the deterioration to his mental health which followed.[54]
[53]PCB 197
[54]PCB 197
123Having undertaken an examination of Mr Coskun and having reviewed the materials provided, the Medical Panel concluded:
“… that the Claimant developed post-traumatic stress disorder. The Panel noted that Dr Gregory White in his report dated 30 November 2020 arrived at the same conclusion. The Panel concluded that the claimant is also suffering from adjustment disorder with depressed mood following the workplace injury in August 2019.”[55]
[55]PCB 201
124The Panel, in respect to the accident-related psychiatric illness suffered by Mr Coskun, went on to say:
“The Panel noted that the claimant’s depressed mood worsened following the workplace injury. He became irritable and noticed road rage behaviours. He continues to experience pain, that limits his ability to engage in activities that he enjoyed previously such as gardening and partake in religious activities such as praying at the mosque. He gained weight due to ‘comfort eating’, and is now making a concerted effort to lose weight. The Panel therefore considers that the claimant has [an] adjustment disorder with depressed mood, which he developed following the workplace injury and the Panel consider’s (sic) that this is evidence of unrelated impairment that is playing a part in his current psychiatric condition which is to be disregarded.”[56]
[56]PCB 202
125Moving now to the parties’ medico-legal psychiatric opinions.
Dr Nicholas Ingram – psychiatrist
126Dr Ingram assessed Mr Coskun on behalf of his solicitors on 8 August 2022.
127The background materials provided to Dr Ingram included the Medical Panel determination and Reasons of 29 November 2020.
128The history obtained by Dr Ingram made reference to:
(a) the accident and the impact which the physical injuries had upon Mr Coskun’s psychiatric state;
(b) the psychiatric distress suffered by Mr Coskun following his father’s suicide a year before the accident.
129Dr Ingram, having considered the materials which he had been provided, and having undertaken an examination of Mr Coskun, concluded:
“I feel Mr Coskun is suffering from a chronic adjustment disorder with depressed mood and anxiety. This is a secondary consequence of his chronic pain and physical limitations and if it is accepted that his pain is related to his work, then so is his depression.”[57]
[57]PCB 129
130In respect to work, Dr Ingram said:
“In regard to work, not only is he limited in working because of his pain, but I doubt he could work fulltime because of his depression and the effect that this has on his motivation and concentration, though I think he would be able to manage part-time work of a few hours a day, two or three days a week if he could find a job that he could manage from a physical perspective.”[58]
[58]PCB 130
131In respect to Mr Coskun’s motivation, Dr Ingram said:
“… I think his depression and the effect that it has on his motivation, concentration and energy levels would make it difficult for him to work fulltime in any employment, including his previous job, though he would be able to manage a few hours a day, two or three days a week. … .”[59]
[59]PCB 130
132Finally, I note Dr Ingram made specific reference in his report to Mr Coskun’s psychiatric illness following his father’s death. Dr Ingram concluded that:
“… Mr Coskun did become depressed following his father’s death and at one stage was diagnosed with a post-traumatic stress disorder. These PTSD symptoms have now resolved, however, and although Mr Coskun still misses his father sorely, as they had a very close relationship, I do not think that his father’s death is now affecting his current presentation in any significant way.”[60]
[60]PCB 131
Associate Professor Saji Damodaran – consultant psychiatrist
133Associate Professor Damodaran first assessed Mr Coskun for the VWA on 22 November 2021.
134At that time, Professor Damodaran obtained a history of:
(a) the suicide of Mr Coskun’s father. He recorded that this impacted upon Mr Coskun’s emotional state[61] and led to suicidal ideation;[62]
(b) the pain and restriction from the left knee injury which resulted in psychiatric injury.
[61]DCB 37
[62]DCB 32
135Professor Damodaran said:
“Mr Coskun is suffering from an adjustment disorder with mixed anxiety and depressed mood along with a chronic pain disorder associated with a general medical condition. I have detailed the nature of the psychiatric condition in the context of persistent pain and also the family history of mental illness.”[63]
[63]DCB 36
136Professor Damodaran concluded in his first report that:
(a) Mr Coskun had no capacity to return to his pre-injury duties by reason of his work-related psychiatric condition; and
(b) Mr Coskun had the capacity to return to work twenty hours per week.
137Professor Damodaran said Mr Coskun should be reviewed in nine months’ time.
138Professor Damodaran re-assessed Mr Coskun on behalf of the VWA on 12 October 2022.
139At that time, Professor Damodaran recorded that Mr Coskun’s employment had been terminated in May 2022. He obtained a history that, subsequently, there was a “spiralling down of his emotional state”.[64]
[64]DCB 46
140Professor Damodaran also recorded details of Mr Coskun’s common law claim arising out of his father’s death.
141When asked whether he continued to accept that Mr Coskun suffered a work-related Adjustment Disorder with Mixed Anxiety and Depressed Mood, along with a Chronic Pain Disorder, Professor Damodaran said that he maintained that diagnosis.[65]
[65]DCB 68
142In respect to Mr Coskun’s prognosis, he said:
“The prognosis of the psychiatric condition is guarded as it is connected to the persistent pain and limitation he is currently going through and the pain symptoms are persistent and they are not improving despite the medical interventions.”[66]
[66]DCB 53
143Specifically, when asked about the death of Mr Coskun’s father, Professor Damodaran said:
“Mr Coskun reported that his father died in 2018. It was reportedly a suicide and they had initiated proceedings against the mental health services in the Supreme Court. Reportedly the matter was settled and there is a non-disclosure agreement. He acknowledged it was affecting him as he was going through the grief, however, he had to support the family and had to manage the home situation. He took one week off and then he returned to work.
I am not able to establish any specific diagnosis of any psychiatric condition at that point of time other than an understandable grief reaction. It suggests a biological vulnerability of Mr Coskun regarding the development of a depressive disorder.”[67]
[67]DCB 53-4
144In respect to the hours which Mr Coskun could work by reason of his psychiatric injury alone, Professor Damodaran said:
“I noted he has a capacity to work up to 20 hours per week. From a psychiatric point of view, I am of the opinion that he can work up to 20 hours per week though there was a decline in his mental health after the cessation or termination of his employment which is also playing a part in the maintenance of the emotional difficulties.[68]
…
He is able to work a maximum of 20 hours within his physical limitation.”[69]
[68]DCB 54
[69]DCB 54
145When asked if Mr Coskun could increase his hours over time, Professor Damodaran said that would be contingent upon management of Mr Coskun’s pain and management of his emotional symptoms.[70]
[70]DCB 54
Conclusions in respect to the medical evidence
146Firstly, dealing with the physical injuries suffered by Mr Coskun.
147The overwhelming weight of the medical evidence supports the proposition that Mr Coskun has suffered, and continues to suffer, a serious injury to his left knee. Indeed, for pain and suffering purposes, this is conceded by the VWA.
148The overwhelming weight of the medical evidence supports the proposition that Mr Coskun has suffered, and will continue to suffer from, significant left knee pain and functional restriction consequential to the accident.
149Based on the medical evidence, I accept Mr Coskun’s complaints of pain and functional restriction are organically based. I specifically refer to the muscle wasting noted by many of the medical practitioners. I do not accept Dr Wyatt’s opinion that Mr Coskun is “catastrophising”.
150I accept that:
(a) Mr Coskun suffers a serious organic left knee injury;
(b) Mr Coskun suffers significant levels of pain and restriction in his left knee;
(c) the prognosis for his left knee injury is poor;
(d) the weight of the medical evidence is to the effect that Mr Coskun will, at some future time, require a left knee replacement procedure.
151Based on the medical evidence, I accept that the pain and functional restriction which Mr Coskun suffers will continue into the foreseeable future.
152There is conflicting medical opinion as to whether or not Mr Coskun’s right knee problems are consequential to the injury to his left knee. On balance, I accept that Mr Coskun’s right knee problems have been aggravated by him favouring his right leg and overcompensating due to his left knee injury. I accept Mr Nizam’s summation.[71] This view is also supported by Dr Brasier, Dr Boffa, and Dr Awad.
[71] See paragraph 49
153Moving now to Mr Coskun’s psychiatric injury.
154In the course of this application, much was made by the VWA of the psychiatric distress suffered by Mr Coskun subsequent to his father’s death and the consequential common law nervous shock case.
155It was said by the VWA that:
(a) the true extent of Mr Coskun’s PTSD was unknown at the time of the hearing;
(b) the consequences of Mr Coskun’s Adjustment Disorder could not be fairly described as “severe” based on his pre-existing PTSD diagnosis and the reported history of psychiatric symptoms prior to the accident;
(c) Mr Coskun failed to provide the medico-legal assessors with a complete history of his mental health problems.
156I will deal with the credit point first. I accept that this was properly tested by the VWA; however, I do not accept that Mr Coskun failed to disclose to the medico-legal assessors, or indeed to the Court, the nature and impact of these matters.
157Mr Coskun was off work for one week after his father’s death. That is perfectly reasonable and to be expected. Thereafter, he returned to work and continued working up until the time of the accident.
158I am assisted in my findings by the Medical Panel’s assessment. That assessment was undertaken for the purposes of the nervous shock case, not this application. Notwithstanding the reasons for that assessment, the Medical Panel made very clear findings of psychiatric injury flowing from the accident. This tends against the VWA proposition that Mr Coskun has tailored his history and presentations to various assessors to suit the claim which he was pursuing at the particular time.
159Further, I do not accept that Mr Coskun has misled or deceived Dr Ingram or Professor Damodaran.
160It was clear that Dr Ingram had been advised by Mr Coskun of the psychiatric distress flowing from his father’s death. Indeed, Dr Ingram was provided with a copy of the Medical Panel Opinion and Reasons.
161Professor Damodaran specifically questioned Mr Coskun in respect to his father’s death and the nervous shock claim, and specifically commented on it.
162That Mr Coskun suffered psychiatric distress arising out of his father’s tragic death ought come as no surprise. I also accept that with the effluxion of time, the level of distress suffered by Mr Coskun from his father’s death has settled.
163There was no report or records provided from Mr Coskun’s long-term treating psychologist, Ms Gerryts. The VWA said that I should draw an adverse inference from the fact that the plaintiff did not rely on any reports or records Ms Gerryts.
164I accept the inference sought by the VWA in respect to Mr Coskun’s failure to rely upon a report of his treating psychologist, Ms Gerryts.
165However, in addition to the Medical Panel Opinion, I also have the benefit of the opinions of four consultant psychiatrists (Associate Professor Damodaran, Dr Ingram, Dr Saraf and Dr Jayarajah) who all conclude that Mr Coskun has suffered psychiatric injury consequential to his left knee injury/the accident.
166I accept that Mr Coskun suffers a psychiatric injury secondary to his left knee injury and resulting from the accident.
167I accept this psychiatric injury impacts upon Mr Coskun’s presentation in many ways. I accept that he suffers:
· Depression and is pre-occupied by depressive themes
· Impaired confidence
· Reduced motivation
· Poor concentration
· From concerns of pain and limitation
· Fatigue
· From a flat and impaired affect
· Ongoing anxiety
· From themes of being generally demoralised and having low mood, together with feelings of helplessness, worthlessness and hopelessness.
Returning to Mr Coskun’s credit
168For the reasons set out:
(a) I do not accept that Mr Coskun’s credit has been impugned by reason of the histories which he has provided to various doctors in respect to his father’s death and the consequential psychiatric distress which that caused;
(b) I accept that Mr Coskun suffers a psychiatric injury which has a profound impact upon him.
169Moving now to the general attack on Mr Coskun’s credit made by the VWA.
170Mr Coskun was quite properly subject to probing cross-examination in the course of the application.[72] This included attacks in respect to his:
· Failure to engage in further training or return-to-work schemes
· Failure to apply for a job in the last six months
· Various reasons why he could not undertake the suggested jobs
· Responses in respect to his computer capacities
· Responses in respect to wearing a suit to go to work
· Lack of motivation to return to work.
[72]See, in particular, the cross-examination and Mr Coskun’s answers between Transcript (“T”) 45 and T52
171In circumstances where the injured worker was not suffering from a significant psychiatric condition, the attack made by the VWA may well have gained real traction. However, given my findings in regard to Mr Coskun’s psychiatric condition, I must assess Mr Coskun’s evidence through the lens that his accident-related psychiatric injury impacts upon his levels of motivation, affect, confidence, coping mechanisms, levels of anxiety, fatigue and mood.
172In considering what the VWA said were poor answers provided by Mr Coskun as to why he was not able to consider some jobs, I must put those responses into context given the nature and extent of his psychiatric injury and my findings in respect to his physical injury. When I do so, much of the force and impact of the attack which the VWA made is lost.
173Indeed, the VWA’s criticisms of Mr Coskun’s unsatisfactory answers are consistent with the findings of medical assessors who found that his mental state impacted his motivation and concentration levels. For example I note Dr Wyatt’s specific conclusions that Mr Coskun’s motivation for finding employment was impacted by his mental state. I accept that Mr Coskun’s “flat affect” is a consequence of his mental illness. I accept, generally, that Mr Coskun gave his evidence in an otherwise straightforward and honest manner.
174I also note that Mr Coskun was prepared to make admissions against interest. For example he agreed that he resigned from the TMS job because it was too stressful and, but for the accident, he would have continued to work with Globe West or in similar employment earning less money.
175I also note Ms Frederico’s submission in respect to the failure by the VWA to rely upon the video surveillance it had obtained. I draw the inference that this video surveillance would not have helped the VWA’s case.
176Being in the unique position of observing Mr Coskun in Court and considering all of the evidence, I do not accept that his credit has been impugned.
177Moving now to my assessment of Mr Coskun’s economic loss claim arising out of his left knee injury alone.
Mr Coskun’s “without injury” earnings
178I was provided with an agreed schedule of Mr Coskun’s gross taxable earnings for the three years prior to the accident. His earnings were:
| Year ending 30 June | Gross Earnings |
| 2017 | $73,022 |
| 2018 | $75,887 |
| 2019 | $59,004 |
179The VWA said I should not accept Mr Coskun’s pre-injury earnings as being most fairly represented by these gross taxable income figures. They said I should base Mr Coskun’s pre-injury earnings on his actual earnings in the job which he was undertaking at the time of the accident. That being $1,140 gross per week.[73]
[73] PCB 162
180The VWA said Mr Coskun could not rely upon the greater earnings figures included in the taxation returns (that is, $75,887 per annum/$1,456 per week), as he had resigned from the position at TMS where he had earned income at this rate.
181The VWA said Mr Coskun had agreed that he could not cope with the demands of that position because it was too stressful.[74] The VWA said, had Mr Coskun not been injured, he would have continued in employment of the type he was undertaking at Globe West and continued to have earned at that rate. Mr Coskun agreed this was in fact correct.[75]
[74]T31, Line (“L”) 28 – T32, L7 and T68, L2-10
[75]T32, L14-16
182Based on Mr Coskun’s evidence, I accept that:
(a) he is not a person who could handle or wished to be exposed to too much stress within the workplace;
(b) he would not be suitable for, or seek, supervisory positions where there was too much responsibility or associated stress.
183In these particular circumstances, given Mr Coskun’s evidence, I accept the VWA’s submissions that Mr Coskun’s “without injury” wage rate should be assessed at $1,140 gross (60 per cent being $684).
The vocational assessment reports
184The VWA relied upon:
(a) the 130-week vocational assessment report from Work Able Consulting dated 1 October 2021;
(b) the Nabenet vocational assessment report dated 20 December 2021;
(c) an email from Ms Emma Stephenson, Nabenet, dated 24 October 2022.
185The VWA said that these materials established:
(a) various jobs which were suitable for Mr Coskun (that is, “the suggested jobs”);
(b) the earnings which Mr Coskun would be able to earn from these positions.
186Mr Coskun relied upon a report from Ms Mary Oliver, human resources consultant, of Flexi Personnel, which set out alternative wage earnings rates for the suggested jobs.
187The Nabenet earnings rates were based on labour market research around median earnings which persons working in the various roles could currently expect to earn. The Flexi Personnel earnings rates were based on award rates which were said to provide minimum payrates and did not include penalty rates or allowances.
Suitable work
188The VWA said Mr Coskun was fit for the suggested jobs and they were appropriate given his skillset.
189Of the suggested jobs, there was one particular position which caused me real concern. That was the position of warehouse manager. The demands of this job were said to include:
“Mental skills necessary include a high level of cognitive functioning with communication, interpersonal, administrative, organisational, logistics knowledge, planning, problem solving and decision-making capabilities.”[76]
[76]DCB 81
190The skill level for this position was said to require:
“You need extensive experience, or a formal qualification in logistics, freight forwarding, warehousing, distribution, business management or another related field to work as a Supply and Distribution Manager. Vocational Education and Training (VET) and university are both common study pathways.”[77]
[77]DCB 81
191Having accepted that Mr Coskun is not a worker who could cope with too much stress within the workplace, nor would he seek out a position of too much responsibility, it therefore follows that it would be inappropriate to suggest “with injury” jobs which involve too much stress and/or responsibility. The VWA cannot have it both ways in this regard.
192Given the requirements of the warehouse manager position and my findings in respect to Mr Coskun, I do not accept this is a suitable job.
193Having excluded that position, I am otherwise assisted by the two tables of earnings rates provided by Ms Frederico and headed “Statement of calculation of loss of earning capacity”.[78] The tables are annexed to this judgment and marked “Annexure ‘A’”.
[78]The contents of these two tables were extracted from the various vocational assessment and earnings rate reports which were tendered in evidence
Does Mr Coskun’s left knee injury alone result in a 40 per cent loss of earnings?
194The VWA accept that Mr Coskun has a serious injury for the purposes of pain and suffering. It is the consequences for work which are in dispute and, in particular, the hours which Mr Coskun is capable of working by reason of his left knee injury.
195I pause here to review Mr Coskun’s evidence in respect to his pain and functional limitations. He said:
· He suffered constant pain, discomfort and functional restriction of his left knee.
· The pain radiated from his left knee down the front of his leg.
· The pain was always present to a degree. At times, he suffered stabbing pain.
· If he sat for extended periods, his left knee would lock up. That was his worst pain.
· The left knee pain was aggravated if he needed to stand or walk for an extended period of time.
· He had difficulty putting pressure on the knee, such as squatting or kneeling.
· That he had difficulty walking on uneven surfaces or up and down stairs.
· He had difficulty driving for lengthy periods of time because of the pain.
· That his sleep was impacted due to his left knee pain.
196I accept that Mr Coskun does suffer from the pain and functional restrictions of which he complains.
197Mr Coskun said he could not work full time because of his left knee. He said the maximum hours he reached after the injury was twenty-something hours.[79] That was prior to the December 2020 and April 2021 knee surgeries.
[79]Doing the best I can, it would seem that the most hours which Mr Coskun worked post injury were 24 hours per week. That is, eight hours per day, three days per week. This was at the time he saw Dr Soliman. This was prior to the second left knee surgery.
198At the time when Mr Coskun’s employment was terminated, he was working two days per week, four hours per day. Mr Coskun said he had reduced his hours to that level as he was unable to keep working the twelve hours or so that he had been.[80]
[80]PCB 40, paragraph 37
199Mr Coskun conceded that, given his education and experience, there were a range of different jobs which could be suitable should appropriate restrictions be provided.[81] It was in respect to the hours which he could reliably and consistently undertake such jobs where there was real dispute.
[81]T52, L21-25
200The VWA relied upon the attack on Mr Coskun’s credit and the opinions of Mr Patten and Dr Wyatt to say that he could work full time.
201Mr Coskun relied upon:
· Dr Brasier, who said he had no capacity
· Mr Pundir, who said he could work eight hours per week
· Dr Awad, who said he could work twelve to fifteen hours per week
· Mr Nizam, who said he could work twelve hours per week.
202Dealing, firstly, with the VWA opinions.
203Firstly, Mr Patten. I found it difficult to marry Mr Patten’s opinion that Mr Coskun now suffers from persisting left knee patellofemoral symptoms which result in severe functional restriction, with his conclusion that Mr Coskun could undertake the suggested jobs on a full-time basis in a reliable and consistent manner, without risk of re-injury or aggravation.
204There was, as submitted by Ms Frederico, no path of reasoning as to how, given his opinion in respect to the persisting symptoms and severe functional restrictions, Mr Coskun could undertake the suggested jobs on a full-time basis. Indeed, I consider Mr Patten’s opinions to be internally inconsistent.
205Moving, now, to Dr Wyatt. Dr Wyatt, while accepting impairment for pre-injury duties, said Mr Coskun could work full time in the suggested jobs. Without going through the physical demands of each and every job, the tasks included in some of the suggested jobs which Dr Wyatt said Mr Coskun could undertake, involved:
· Sitting for much of the day (for example warehouse administrator)
· Assisting with loading and unloading equipment (for example sales coordinator).
206These two tasks, on the weight of the medical evidence, are contraindicated.
207Dr Wyatt has not factored in the level of pain and functional restriction which I accept Mr Coskun suffers. Indeed, I consider Dr Wyatt’s conclusions to be tainted by her finding that she considered Mr Coskun to be “catastrophising”. Given the nature and extent of Mr Coskun’s left knee injury, I do not accept that to be so.
208Referring, now, to the opinions which Mr Coskun relied upon.
209Dr Brasier was the most pessimistic. He has been a treating doctor since March 2022. When he first met Mr Coskun, he was working four hours per day, two days per week. Dr Brasier did not consider Mr Coskun had the capacity to increase those hours.
210In Dr Brasier’s report of July 2022, he said that he did not consider Mr Coskun had any work capacity; however, on careful reading of that report, there was reference to psychiatric issues. Given what appears to be an aggregation of the physical and psychiatric consequences, this assessment can be of no assistance to me.
211Mr Pundir, in the certificates of capacity which he has continued to provide, certifies that Mr Coskun is only fit for eight hours’ work per week (being two days, four hours per day).
212Dr Awad, having undertaken a detailed analysis, concluded that Mr Coskun could work only twelve to fifteen hours per week by reason of his left knee injury. Dr Awad said that Mr Coskun was unable to undertake the suggested jobs on a full-time basis. Dr Awad focused on likely exacerbation and deterioration of symptoms should Mr Coskun undertake excessive or inappropriate work. Dr Awad’s analysis of Mr Coskun’s functional impairment and pain consequences is significantly in line with my findings.
213Referring now to Mr Nizam. Mr Nizam has had the benefit of:
· Seeing Mr Coskun the day after the accident and assessing the mechanism of his left knee injury and acute presentation.
· Undertaking two surgeries on Mr Coskun’s left knee and viewing the level of internal derangement.
· Generally observing Mr Coskun over many years.
214Mr Nizam is therefore in a good position to provide a considered assessment of the functional consequences to Mr Coskun, the pain which he suffers, and the appropriate hours which he should work in suitable duties. Mr Nizam’s opinion is generally consistent with the opinion of Dr Awad.
215Mr Nizam concluded that Mr Coskun was suited for part-time work only. He said four hours a day, three days per week, would be “the most appropriate”.
216It is the opinions of Dr Awad and Mr Nizam which I find the most helpful in my consideration of the number of hours which Mr Coskun is capable of working on a consistent and reliable basis.
217Having considered all of the evidence, I accept that Mr Coskun, by reason of his left knee injury alone, is limited to twelve to fifteen hours per week with considerable restrictions. I also accept that this limitation will continue into the foreseeable future.
218Referring now to the suggested jobs and the earnings levels which I accept most fairly represent the “without injury” and “with injury” earning rates. I exclude the position of warehouse manager. That being so:
(a) on any of the potential earning rates in the remaining suggested jobs, and having Mr Coskun work up to fifteen hours per week;
(b) accepting the VWA submissions in respect to the “without injury” earnings figures;
Mr Coskun satisfies the 40 per cent loss of earnings by reason of his left knee injury alone.[82]
[82]See the calculations in the first table of Annexure “A” – 15 hours per week. The highest earning rate based on the VWA wage rates is $538. This falls below the 60 per cent figure, which is $684
219An economic loss certificate will be granted in respect to Mr Coskun’s left knee injury.
220Which now takes me to my assessment of Mr Coskun’s psychiatric injury.
Is Mr Coskun’s psychiatric injury a “serious injury” for pain and suffering purposes?
221The VWA said that Mr Coskun’s psychiatric injury did not satisfy the “serious injury” test for pain and suffering. They said the psychiatric aspect of his application must therefore fail.
222In assessing Mr Coskun’s psychiatric injury, I have:
(a) Mr Coskun’s own evidence;
(b) the evidence of four consultant psychiatrists;
(c) the observations made by the various other medical practitioners who do not hold specialist psychiatric qualifications.
223As noted above, I accept the inference sought by the VWA in respect to Mr Coskun’s failure to rely upon Ms Gerryts.
224As noted earlier in this judgment, in general terms, each of the four consultant psychiatrists say more or less the same thing in respect to Mr Coskun’s accident-related psychiatric injury. I accept Mr Coskun suffers a Chronic Adjustment Disorder with Depressed Mood and Anxiety. This is as a result of the left knee injury. It is not consequential from his father’s death.
225I accept that Mr Coskun’s accident-related psychiatric injury impacts upon him in many ways. I accept the consequences include:
· Ongoing periods of sadness
· Lack of motivation
· Impaired concentration
· Reduced energy levels/fatigue
· A constant sense of worry
· That he breaks down and cries spontaneously
· Pre-occupation about further injury to his left knee
· Feelings of vulnerability
· Difficulties relaxing
· Anxiety
· Impaired sleep due to his psychiatric injury
· Constant ruminations
· Feelings of helplessness, worthlessness and hopelessness and being generally demoralised
· Irritability and short temper
· Road rage
· Loss of enjoyment of activities which were previously pleasurable.
226I accept these consequences impact both on Mr Coskun’s work capacity and his day-to-day life.
227Referring firstly to the impact on Mr Coskun’s work capacity.
228Dr Ingram said that, by reason of Mr Coskun’s psychiatric injury alone, he would only be able to manage a few hours per day, two to three days a week.[83]
[83]PCB 130
229Professor Damodaran was a little more optimistic. He was of the view that Mr Coskun, from a psychiatric point of view, could work up to twenty hours per week.[84]
[84]Question 8, DCB 54
230Having considered all of the evidence, I accept that Mr Coskun is restricted to twenty hours per week work by reason of his accident-related psychiatric injury alone.[85] This in itself is a serious consequence.
[85]See for example Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 and Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
231Moving now to Mr Coskun’s day-to-day life.
232Mr Coskun has to live with the consequences which I have listed in paragraph 225. I accept these consequences are, for a man 37 years of age, severe.
233It is, of course, necessary for any psychiatric impairment to be not only serious, but also permanent.[86]
[86]See the discussion by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, and in particular a paragraph [34]
234Dr Ingram said that Mr Coskun’s depression is secondary to his pain and that the prognosis for his depression largely depends on the prognosis for his pain. Professor Damodaran said that Mr Coskun’s prognosis was guarded. He said his psychiatric condition is connected to his pain symptoms.
235Mr Coskun has been assessed by a pain management team. Those undertaking that assessment concluded that a pain management program was not able to offer anything further than the range of medical services/pain management that Mr Coskun was already accessing.[87]
[87]PCB 56 and 121
236Mr Coskun has received pain management from numerous medical practitioners over the years. He has also attended a gym and undertaken a rehabilitation program there. Each of the medical practitioners involved in his treatment and management paint a gloomy picture.
237I accept that:
· Mr Coskun has a serious and organically-based left knee injury, for which he suffers significant pain and functional restriction.
· Despite the appropriate treatment and pain management which he has received, his level of pain and functional restriction is ongoing.
· Mr Coskun’s pain increases, and his function decreases, with activity.
· At some future time, it is likely he will require knee replacement surgery.
· The level of pain and functional restriction will continue into the foreseeable future.
· The psychiatric injury is consequential to the pain and restriction.
· The psychiatric injury will therefore continue into the foreseeable future.
238Taking into account all of the evidence, I accept that Mr Coskun, for pain and suffering purposes, suffers a “serious injury” by reason of his accident-related psychiatric condition.
Does Mr Coskun’s psychiatric injury alone result in a 40 per cent loss of earnings?
239As set out, I accept that by reason of his psychiatric condition alone, Mr Coskun is limited to 20 hours per week work.
240I accept Mr Coskun’s “without injury” rate of pay to be $1,140.00 (60 per cent being $684.00).
241In respect to the “with injury” earnings, I refer to the second table in Annexure “A”. This sets out various potential earning rates in the suggested jobs, working 20 hours per week.
242In this regard, I note:
(a) there are two jobs based on the VWA suggested wage rates which put Mr Coskun over the 60 per cent earnings figure.[88] They are:
(i)the position of quality examiner which would result in earnings of $689.40 per week; or
(ii)the dispatch and receiving clerk position which would result in earnings of $718.40 per week;
(b) in respect to these two positions, Ms Oliver suggests earnings rates of:
(i)quality examiner, $470.40 per week;
(ii)dispatch and receiving clerk, $484 per week.[89]
[88]See the figures in Table 2 of Annexure “A” – 20 hours per week
[89]I have taken these figures from the table which formed part of Ms Frederico’s written submissions headed “Statement of calculation of loss of earning capacity”
243If I were to accept Ms Oliver’s figures, Mr Coskun would still be losing in excess of 40 per cent.
244The VWA said I should prefer the Nabenet figures, as they rely upon real labour market research and are based on the median earnings which people would expect to earn in these positions. The VWA said that the Flexi Personnel figures, being the base award rates, are the minimum pay rates and do not include penalty rates and allowances. They said that many employers pay more than the minimum wage.[90]
[90]T94, L1-10
245Mr Coskun has the onus of proof.
246I accept that some workers in the two positions identified will be paid at the rate relied upon by the VWA. Therefore, in this particular case, I am not prepared to accept that Mr Coskun has discharged the onus of establishing that, by reason of his psychiatric injury alone, he suffers a 40 per cent loss.
247Mr Coskun’s application for economic loss certification for his psychiatric injury alone fails.
Conclusion
248I propose to make the following orders:
(a) Mr Coskun will be granted a pain and suffering certificate in respect to his left knee injury alone;
(b) Mr Coskun will be granted an economic loss certificate in respect to his left knee injury alone;
(c) Mr Coskun will be granted a pain and suffering certificate in respect to his psychiatric injury alone.
249I will hear the parties in respect to the formal orders to be made.
- - -
Annexure “A”
15 Hours
| Job | Workable/Nabenet | Flexi Personnel |
| Warehouse Administrator | $32.92 per hour = $493.80 per week = $25,687 | 24.18 per hour = 362.70 per week = $18,860 |
| Quality Examiner | $34.47 per hour = $517.06 per week = $26,887 | $23.52 per hour = $352.80 per week= $18,346 |
| Dispatch and Receiving Clerk | $35.92 per hour = $538.80 per week = $28,017 | $24.18 = $362.70 per week = $18,860 |
| Warehouse Supervisor | $27.68 per hour = $415.20 per week= $21,590 | $24.90 per hour = $373.50 per week = $19,422 |
| Warehouse administration assistant (Nabenet) | $27.81 per hour = $417.15 per week = $21,692 | $23.51 per hour = $352.65 per week = $18,338 |
| Logistics Clerk (Nabenet) | $26.63 per hour = $399.45 per week = $20,771 | $24.18 per hour $362.70 per week = $18,860 |
20 Hours
| Job | Workable/Nabenet | Flexi Personnel |
| Warehouse Administrator | $32.92 per hour = $658 per week = $34,237 | $24.18 per hour = $484 per week = $25,147 |
| Quality Examiner | $35.92 per hour = $718.40 per week = $37,357 | 23.52 per hour = $470.40 per week = $24,261 |
| Dispatch and Receiving Clerk | $35.92 per hour = $718.40 per week = $37,357 | $24.18 per hour = $484 per week = $25,147 |
| Warehouse Supervisor | $27.68 per hour = $553.60 per week = $28,787 | $24.18 per hour = $484 per week = $25,896 |
| Warehouse administration assistant (Nabenet) | $27.81 per hour $556.20 per week = $28,922 | $23.51 per hour = $470 per week = $24,450 |
| Logistics Clerk (Nabenet) | $26.63 per hour = $533 per week = $27,716 | $24.18 per hour $484 per week = $25,168 |
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