Darmanin v Victorian WorkCover Authority
[2023] VCC 1060
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-05419
| BRIAN DARMANIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2023 | |
DATE OF JUDGMENT: | 30 June 2023 | |
CASE MAY BE CITED AS: | Darmanin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1060 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – cervical spine injury – economic loss – pain and suffering – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave to the plaintiff to bring common law proceedings for pain and suffering and economic loss damages in respect to a spinal injury suffered on or about 21 November 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr C Sidebottom | Maurice Blackburn |
| For the Defendant | Ms D Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1The plaintiff, Mr Brian Darmanin, commenced work with Chalmers Industries Pty Ltd (“Chalmers Industries”) in May 2016. He was employed as a truck driver on a full-time basis. Prior to working with Chalmers Industries, Mr Darmanin had worked as a truck driver, a truck jockey and as a process worker/storeman with various other employers.
2On 21 November 2016, Mr Darmanin suffered a neck injury while unloading seats off the conveyor on his truck (“the accident”). He was working at the Toyota plant in Altona North.
3Mr Darmanin is currently fifty-seven years of age. He now lives in a de facto relationship with his partner, Angela. At the time of the accident, he was living with his former wife. They have five children. The breakdown of his marriage, which occurred after the accident, was traumatic for him. The associated stress included a home invasion which occurred on 18 March 2018, when he was assaulted by a number of people, including one of his sons.
4In the completed financial years prior to the accident, Mr Darmanin had earned:
Financial year ended
Gross income
30 June 2016
$93,157
30 June 2015
$69,896
30 June 2014
$88,737
5While Mr Darmanin tried to continue working after the accident, he lasted only a short time before he was certified off work. Mr Darmanin remained off work until mid-2017. Pursuant to a return-to-work program with Chalmers Industries, Mr Darmanin then resumed work undertaking modified duties on a part-time basis. He got back to some limited truck driving.
6On 30 May 2019, Chalmers Industries terminated Mr Darmanin’s employment.
7After his employment was terminated, Mr Darmanin was unemployed for a period of time.
8On 25 November 2019, Mr Darmanin obtained work with Ason Warehousing and Logistics “(Ason Warehousing”). This employment was obtained via the WISE program. This job is a thirty-hour per week job driving a small truck. Mr Darmanin has continued working in this job. He is paid $26 per hour.
9Mr Darmanin said that:
(a) his new employer is aware of his neck injury;
(b) he is able to pace himself at this work;
(c) he tries to, and is mostly able to, avoid heavier work;
(d) he is employed on a casual basis;
(e) at most he works thirty hours per week, but sometimes less;
(f) the thirty hours per week, he said, represented the limit of his work capacity; he could not work any more hours;
(g) he regularly has days off work because of soreness and pain.
10Mr Darmanin says he continues to suffer ongoing neck pain, referred arm pain and headaches.
11Mr Darmanin says that his spinal injury is a serious injury for the purposes of both pain and suffering and economic loss.
12The Victorian WorkCover Authority (“VWA”), who is the worker’s compensation insurer for Chalmers Industries, said that Mr Darmanin has not suffered a serious injury for either pain and suffering or economic loss purposes. They said that Mr Darmanin could do a range of full-time work and had not lost 40 per cent of his “without injury” earnings.
The nature of this proceeding
13This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Darmanin relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his spinal injury is a “permanent serious impairment or loss of a body function”.
14For Mr Darmanin to be successful, he must establish that the consequences from his spinal injury, when judged by comparison with other cases in the range of possible impairments or losses of a 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.
15For Mr Darmanin to satisfy the “very considerable” loss of earning capacity consequences, he must satisfy the statutory formula contained in s325(2)(e), (f) and (g) of the Act. That is:
(a) he has a loss of earning capacity of 40 per cent gross earnings;
(b) that loss will be permanent.
16It is Mr Darmanin who has the onus of proof.
The issues
17At the commencement of the application, the VWA said all issues were in dispute. The matters for the Court to determine include:
(a) as to Mr Darmanin’s credit and as to whether I can accept his evidence;
(b) the impact of the video surveillance;
(c) which of the medical opinions should be accepted and the assistance they provide;
(d) the nature and extent of the consequences to Mr Darmanin of his spinal injury;
(e) whether the consequences of Mr Darmanin’s spinal injury satisfy the pain and suffering test;
(f) what, if any, assistance is provided by the vocational assessment and indicative wage rate reports;
(g) whether the consequences of Mr Darmanin’s spinal injury result in an economic loss to him of 40 per cent or more.
Mr Darmanin’s credit
18As in a great number of cases of this type, the credit and reliability of Mr Darmanin is critically important.[1]
[1]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
19At the conclusion of evidence, and in their final address, the VWA said:
(a) this is not a credit case;
(b) that they accepted Mr Darmanin was a witness of truth.[2]
[2]Transcript (“T”) 84, Lines (“L”) 25-28
20This concession was properly made by the VWA.
21In the course of giving his evidence, it became very clear that Mr Darmanin is an uncomplicated, straightforward and stoic man. Mr Darmanin was prepared to, without hesitation, make admissions against interest. Mr Darmanin was earnest and did the best he could to give reliable evidence.
22I accept that Mr Darmanin was a credible witness.
The video surveillance
23In the course of the application, video of Mr Darmanin moving furniture on 2 November 2021 (“the video surveillance”) was shown. The range of activities which Mr Darmanin was shown to be undertaking included:
· Operating a tailgate.
· Assisting his brother-in-law, or indeed undertaking, the manoeuvring of items including:
(i)a fridge
(ii)a washing machine
(iii)a chest of drawers
(iv)mattress and bedhead
(v)a tool storage container.
24The VWA said that the video surveillance was important in terms of showing that Mr Darmanin was capable undertaking heavy work and was not affected by his injury. The VWA said the video surveillance showed that Mr Darmanin was capable of working full time.
25Mr Darmanin agreed that:
· The activities which he undertook in the video surveillance were more than what he would do in the course of his employment with Ason Warehousing.
· There were no outward signs of pain or grimacing.
· He did not attend a doctor afterwards complaining of increased pain.
26However, Mr Darmanin also said:
· That he did not have any choice but to move house.
· That he was in pain all day.
· After moving house, he was very sore and he medicated himself, and went to bed.
· That he could not do that type of activity on a regular basis.
27Mr Brett said:
(a) Mr Darmanin had no choice but to shift;
(b) it was clear that Mr Darmanin’s brother-in-law did the heavier part of the work and, indeed, undertook the brunt of what had to be done;
(c) the video surveillance did not impact on Mr Darmanin’s credit or establish the capacity asserted by the VWA.
28Noting the concessions made by the VWA, and given my findings in respect to Mr Darmanin’s credit, I accept Mr Darmanin’s evidence that:
(a) his personal circumstances necessitated the need to move house;
(b) his brother-in-law undertook the majority, but not all, of the heavier tasks;
(c) he suffered pain while undertaking the activities shown on the video surveillance;
(d) as a result of undertaking the activities associated with the shift, he suffered significant consequential pain, medicated himself, and went to bed;
(e) he could not undertake such activities on a regular and consistent basis.
The medical evidence
29I will firstly review and analyse the treating medical practitioners’ evidence before moving to the medico-legal evidence.
30As is the case in many of these applications, in addition to the formal medical reports, I was provided with a great deal of material by way of letters, referrals, questionnaires and other miscellaneous materials. Putting aside the medical reports, a good deal of these other materials were of little or no assistance to me in my determination. In my review and analysis of the treating medical practitioner evidence, I will focus on the substantive medical reports, and such other materials which are of assistance to me.
The spinal injury evidence
Dr John Nguyen, general practitioner
31After the accident, Mr Darmanin attended the Melton Medical and Dental Clinic (“the clinic”). He consulted various general practitioners, including Dr Nguyen. It was Dr Nguyen who completed a questionnaire for the VWA authorised insurer, CGU Workers’ Compensation (“CGU”), in March 2017.
32Dr Nguyen said that Mr Darmanin, at that stage, by reason of his neck injury, had no work capacity. Dr Nguyen said that he would keep CGU informed when Mr Darmanin was able to return to light work on a gradual basis. Dr Nguyen said that Mr Darmanin required ongoing general practitioner and specialist management, together with physiotherapy and hydrotherapy.
Dr Christopher French, neurologist
33Dr French saw Mr Darmanin on 31 January 2017, on referral from Dr Naga Mude, one of the other general practitioners at the clinic. Dr French obtained a history of Mr Darmanin suffering a neck injury on 21 November 2016. In particular, he obtained a history of severe pain in the right arm, as well as weakness.
34Dr French noted the MRI scan of 1 December 2016 showed moderate to severe canal stenosis at C5-6 and C6-7, and bilateral C5, C6 and C7 foraminal stenosis. Dr French said it was very likely that the levering movements undertaken by Mr Darmanin at work had resulted in pain and weakness which was related to the structural abnormalities.
35On examination, Dr French found there was wasting of the right trapezius and winging of the right scapula. He said the triceps jerk was absent on the right arm and there was associated weakness. Dr French said that Mr Darmanin was experiencing considerable pain. Dr French considered Mr Darmanin would benefit from neurosurgical review and he referred him to Professor Richard Bittar, neurosurgeon.
Professor Richard Bittar, neurosurgeon
36Mr Darmanin consulted Professor Bittar on 24 March 2017. At that time, Professor Bittar said Mr Darmanin was suffering from neck pain and right brachialgia with sensory disturbance. Professor Bittar noted that Mr Darmanin’s pain radiated to the trapezium. Professor Bittar said the results of nerve conduction studies which had been undertaken were consistent with right-sided cervical radiculopathy.
37On 28 March 2017, Professor Bittar suggested that Mr Darmanin:
(a) undergo a C7 nerve sheath injection;
(b) consult with Dr Symon McCallum, pain physician.
38On 20 July 2017, Professor Bittar recorded that Mr Darmanin had obtained some temporary relief from the C7 nerve injection. However, Professor Bittar also said that Mr Darmanin was still suffering ongoing neck and right retroscapular pain. At that time, Professor Bittar noted that Mr Darmanin was working three days a week. Professor Bittar did not recommend spinal surgery. Professor Bittar discharged Mr Darmanin from his care and suggested that he continue with ongoing pain management.
39On 2 July 2018, Professor Bittar again saw Mr Darmanin. This was after the home invasion. Professor Bittar recorded that there had been some deterioration in Mr Darmanin’s condition. Professor Bittar suggested that Mr Darmanin continue with pain management.
Dr Symon McCallum, pain physician and specialist anaesthetist
40Mr Darmanin first consulted Dr McCallum on 8 May 2017. Dr McCallum obtained the history of neck injury at work on 21 November 2016.
41Like Professor Bittar, on examination, Dr McCallum could not find a right arm reflex.
42Dr McCallum said nerve conduction studies showed mild subacute right C7-T1 radiculopathy and right median neuropathy. Dr McCallum said the MRI report from December 2017 showed severe spinal cord stimulation at C5-6 and C6-7, with bilateral foraminal stenosis.
43Dr McCallum agreed with Professor Bittar’s recommendation that Mr Darmanin undergo a right-sided C7 injection. This was organised for 11 May 2017.
44On 29 May 2017, Mr Darmanin told Dr McCallum that the injection had helped “a bit”.[3] While Mr Darmanin still had throbbing in the right arm on a daily basis, it had reduced. Dr McCallum reported that Mr Darmanin:
(a) had ongoing right neck pain;
(b) still had weakness in the right arm;
(c) continued to suffer headaches.
Dr McCallum recorded that Mr Darmanin had been able to resume working three days per week.
[3] Amended Plaintiff’s Court Book (“PACB”) 36
45At the time of his 10 December 2017 report to Mr Darmanin’s solicitors, Dr McCallum noted that Mr Darmanin had increased his work hours to four hours per day on light duties. Dr McCallum confirmed that Mr Darmanin was still suffering:
(a) ongoing neck pain;
(b) headaches;
(c) referred pain to the trapezium.
Dr McCallum said that, while Mr Darmanin had reported the right arm pain had reduced, he still suffered numbness. Again, Dr McCallum said he could not elicit reflexes in the right arm.
46Dr McCallum’s next report is dated 8 October 2018. This report was provided after Mr Darmanin had undergone medial branch blocks at C5-6 and C6-7 at the Sunshine Private Hospital on 21 September 2018. At this time, Dr McCallum said Mr Darmanin reported ongoing and increasing neck pain and pain down his right arm. Dr McCallum was concerned about these increasing problems, which he thought might be due to the cervical stenosis.
47On 29 March 2019, Dr McCallum performed bilateral cervical C3-4 and C4-5 medial branch blocks at the Sunshine Private Hospital. Subsequent to this procedure, Dr McCallum, in his final report of 21 March 2020, said that Mr Darmanin was a candidate for radiofrequency neurotomy at C3-4 and C4-5. Dr McCallum also suggested a rehabilitation program and a referral to a psychiatrist. At that time, Dr McCallum noted that Mr Darmanin was not working. Dr McCallum said the prognosis was poor.
Dr Lishan De Alwis, general practitioner
48Dr De Alwis is a general practitioner at the Altona Superclinic. Dr De Alwis completed a questionnaire for CGU on 28 August 2019. This questionnaire followed a meeting in which Dr De Alwis and Mr Darmanin met with a representative from Nabenet, the CGU return-to-work consultants. Dr De Alwis said that Mr Darmanin was happy to work in a job which involved driving a car and had minimal lifting. Dr De Alwis said that Mr Darmanin needed to be assessed by an occupational physician, pain specialist and neurosurgeon.
Dr Michael Condell, neurosurgery Fellow
49On 26 July 2021, Dr Condell reviewed Mr Darmanin at the Royal Melbourne Hospital Neurosurgery Clinic. Mr Darmanin had attended at this clinic previously. Dr Condell sent a reporting letter to Dr De Alwis. Dr Condell recorded the history of Mr Darmanin suffering a work injury and suffering ongoing neck and bilateral shoulder pain. Dr Condell said Mr Darmanin had enquired to him about returning to work. Dr Condell said Mr Darmanin is cleared for work with no restrictions. Dr Condell said Mr Darmanin had been discharged from the neurosurgical clinic.
The psychiatric evidence
Dr Akinsola Akinbiyi, psychiatrist
50Mr Darmanin was assessed by Dr Akinbiyi on 7 August 2019. At that time, Dr Akinbiyi said that Mr Darmanin had issues with mood, headache, libido and weight gain. He prescribed Cymbalta.
Dr Alan Blandthorn, psychiatrist
51Dr Blandthorn commenced treating Mr Darmanin on 26 October 2022. He obtained a history of both the work injury in November 2016 and Mr Darmanin’s matrimonial issues, including the home invasion. Dr Blandthorn noted that Mr Darmanin was working five days per week from 6.00am to 12 noon, driving a small ratchet truck. He said, in his report, the major reason for the consultation was to enable Mr Darmanin to obtain a prescription for Duloxetine.
The medico-legal reports
52Moving, now, to the medico-legal reports. I will deal with these in chronological order.
Mr Michael Troy, general surgeon, report 14 February 2017
53Mr Troy assessed Mr Darmanin on behalf of CGU on 14 February 2017. Mr Troy said that the work incident aggravated degenerative change in Mr Darmanin’s cervical spine. He said, at this time, it was his assessment that:
(a) the aggravation persisted;
(b) Mr Darmanin had an incapacity for work which resulted from, or was materially contributed to, by the injury which he suffered at work;
(c) there was a need for cervical spine surgery;
(d) Mr Darmanin should see a neurosurgeon and have “satisfactory surgery”.[4]
[4]Further Amended Defendant’s Amended Court Book (“DACB”) 16
Dr Stephen Stern, consultant psychiatrist, reports 2 April 2019 and 14 July 2019
54Dr Stern assessed Mr Darmanin for CGU on 2 April 2019. He said that Mr Darmanin was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Stern said this condition was initially caused by the work injury. He said it had been aggravated by Mr Darmanin’s matrimonial issues and the home invasion. Dr Stern said, from a psychiatric aspect, Mr Darmanin was fit for work.[5]
[5]DACB 23-24
55Dr Stern provided a supplementary report dated 14 June 2019. CGU had provided further medical material to him. Dr Stern said Mr Darmanin’s current psychiatric state, in his opinion, was still, in part, related to the work injury.[6]
[6]DACB 28
Mr Roy Carey, consultant orthopaedic spine surgeon, report 5 May 2020
56Mr Carey assessed Mr Darmanin on 5 May 2020 for CGU. This assessment was for the purpose of an AMA impairment assessment. Mr Carey obtained a history of the 21 November 2016 work injury.
57Mr Carey observed that Mr Darmanin was a “pleasant and genuine” witness.[7] Mr Carey said that Mr Darmanin had ongoing neck and right arm symptoms. He considered the prognosis was for continued discomfort into the foreseeable future. Mr Carey said Mr Darmanin was suffering right brachialgia.
[7] PACB 103
Dr Peter Wilde, orthopaedic surgeon, report 17 November 2021
58Dr Wilde assessed Mr Darmanin for the VWA’s solicitors on 17 November 2021. Dr Wilde obtained a history from Mr Darmanin that his current pain symptoms ranged from 5/10 on a good day to 6-7/10 on a bad day. He noted that Mr Darmanin’s neck was painful and stiff, and he complained of daily headaches.
59Dr Wilde said that Mr Darmanin had suffered an aggravation of cervical spondylosis in the accident.[8] Dr Wilde thought that Mr Darmanin may have also been suffering from carpal tunnel syndrome unrelated to the work injury.[9] Dr Wilde did not think the home invasion had a significant impact upon Mr Darmanin’s presentation.
[8]DACB 104
[9]DACB 104
60Dr Wilde said that Mr Darmanin could not do his pre-injury work. Dr Wilde recorded that Mr Darmanin was working thirty hours per week at that time. Dr Wilde thought that Mr Darmanin could increase his hours to thirty-eight hours per week.
Dr Peter Wilde, report 14 December 2021
61Dr Wilde was provided with the video surveillance. Having reviewed the video surveillance, Dr Wilde said that Mr Darmanin could do heavy physical manual work, probably on a full-time basis.[10] However, Dr Wilde went on to say, if Mr Darmanin was taking heavy painkillers, muscle relaxants, or alcohol, while undertaking those tasks, then he should not continue working in such capacity on a permanent basis under the influence of such medication or alcohol.[11]
[10]DACB 106
[11]DACB 107
Dr Joseph Slesenger, specialist occupational physician, report 1 December 2021
62Dr Slesenger assessed Mr Darmanin on 16 November 2021 on behalf of the VWA’s solicitors.
63Dr Slesenger, when asked to provide a diagnosis for Mr Darmanin’s cervical spine condition, said that he had “reservations” in regard to Mr Darmanin’s findings.[12] Dr Slesenger referenced numerous matters which he raised as credit issues.[13] Having raised these concerns, Dr Slesenger said that Mr Darmanin, in his opinion, was likely to have sustained a cervical spine soft-tissue injury, aggravation of degenerative disease, and had chronic neck pain.
[12] DACB 123
[13]DACB 123
64Dr Slesenger said he was suspicious of Mr Darmanin’s advice that there had been no aggravation of his symptoms as a result of the home invasion.
65Dr Slesenger was of the view that Mr Darmanin could return to his pre-injury role performing duties as a truck driver/delivery person. However, he thought he would have difficulty performing the duties at the Toyota site. Dr Slesenger said that Mr Darmanin could work on a full-time basis with restrictions, being no pushing, pulling, carrying or lifting over 20 kilograms on an occasional basis, and 10 kilograms on a repetitive basis.[14]
[14]DACB 124
66Dr Slesenger said, in his opinion, the incident-related impact had almost resolved.[15] Dr Slesenger said that Mr Darmanin was fit for the work set out in the Nabenet report of 19 March 2019, with the restrictions set out in the preceding paragraph of this judgment.
[15]DACB 125
Dr Robyn Horsley, occupational physician, report 31 August 2022
67Dr Horsley assessed Mr Darmanin on 31 August 2022 on behalf of his solicitors. Dr Horsley said that Mr Darmanin presented in a straightforward manner. She said that Mr Darmanin had sustained an injury to his cervical spine on 21 November 2016 on a background of pre-existing cervical spondylosis. Dr Horsley undertook a detailed analysis of Mr Darmanin’s treatment subsequent to the accident.[16] Dr Horsley provided a detailed explanation of Mr Darmanin’s ongoing problems, including Mr Darmanin suffering acute neck-locking episodes and flare-ups.[17]
[16]See analysis under “Current problem”, PACB 111-112.
[17]PACB 113
68Dr Horsley recorded that Mr Darmanin needed regular days off the work which he was undertaking at Ason Warehousing. She said that Mr Darmanin had told her that, in the preceding month, he had four days off, and in the month prior, ten days off.
69Dr Horsley undertook a detailed analysis of the current pain and symptoms of which Mr Darmanin complained, and his ongoing medical treatment.[18]
[18]See analysis at PACB 112-113.
70It was Dr Horsley’s opinion that Mr Darmanin’s symptoms would persist. She said that he had “considerable restrictions”.[19] Dr Horsley was of the view that, when Mr Darmanin’s current employment with Ason Warehousing was terminated, he would have come to the end of his working life.[20]
[19] PACB 116
[20]PACB 116
71Dr Horsley set out the work restrictions which she considered appropriate, given Mr Darmanin’s injuries. The list of restrictions is significant.[21] Dr Horsley thought it was in Mr Darmanin’s best interest to continue working in his current role for as long as he was able. Dr Horsley said that Mr Darmanin had no capacity to increase his hours and, in fact, he was struggling with working thirty hours per week.[22]
[21]See the list of work restrictions set out under “Opinion” at PACB 116-117.
[22]DACB 118
Dr Hazem Akil, neurosurgeon
72Dr Akil assessed Mr Darmanin on behalf of his solicitors on 16 January 2023. Dr Akil considered Mr Darmanin, as a result of the accident, had suffered an aggravation of cervical spondylosis. He said that Mr Darmanin’s employment was a major contributing factor to his current condition. Dr Akil said that, in his opinion, Mr Darmanin’s prognosis was poor.
73In respect to work capacity, Dr Akil said that:
(a) Mr Darmanin had continued to work, even though he was suffering from significant pain in his neck and arms;
(b) Mr Darmanin was struggling to work thirty hours a week, and that was the maximum he could do at this stage;
(c) Mr Darmanin’s restrictions included sitting for long periods, lifting, pushing, pulling and overhead reaching;
(d) he considered these functional restrictions were permanent;
(e) he considered the restricted hours and restricted duties were permanent.[23]
[23]DACB 124
Dr Natalie Krapivensky, consultant psychiatrist
74Dr Krapivensky assessed Mr Darmanin on behalf of the VWA solicitors on 1 February 2023. She said there was:
(a) no current psychiatric diagnosis;
(b) no psychiatric disability;
(c) no psychiatric incapacity.[24]
[24]DACB 157
Dr Peter Wilde, supplementary report 13 February 2023
75Dr Wilde was provided with a copy of the Recovre report dated 5 January 2023 and asked to provide a supplementary report. At that time, Dr Wilde did not re-examine Mr Darmanin. Dr Wilde said he anticipated that, over the twelve-month period since he had examined Mr Darmanin, his condition would have improved. He said that Mr Darmanin would now be better than he was in 2021. Dr Wilde said that Mr Darmanin could undertake the tasks identified by Recovre.[25]
[25]See Dr Wilde’s analysis at DACB 108-109.
Dr Joseph Slesenger, report 16 February 2023
76Dr Slesenger re-examined Mr Darmanin on behalf of the VWA solicitors on 30 January 2023.
77Dr Slesenger confirmed that Mr Darmanin had suffered injury to his cervical spine, as set out in his previous report.[26] Dr Slesenger again raised credit issues. He said there were inconsistencies and behavioural elements in Mr Darmanin’s presentation.
[26]DACB 135
78Dr Slesenger recorded that Mr Darmanin had returned to work, but was having “occasional time off”.[27] Dr Slesenger had been provided with the video surveillance. Dr Slesenger provided a detailed commentary of the video surveillance and his interpretation.[28]
[27] DACB 139
[28]DACB 143-145
79Dr Slesenger said, based on the video surveillance, that:
(a) Mr Darmanin’s spinal impairment had now resolved;[29]
(b) Mr Darmanin was “functioning normally”;[30]
(c) Mr Darmanin had the capacity for work without restriction;
(d) Mr Darmanin could do all those jobs set out in the Recovre report of 5 January 2023.[31]
[29]DACB 148
[30]DACB 148
[31]DACB 149
80Dr Slesenger went on to conclude:
“The surveillance footage disclosed raises questions as to the cause of Mr Darmanin’s impairment.
I am now satisfied that the incident related impairment had resolved at the time of the first evaluation with myself on 16.11.2021.”[32]
[32]DACB 151
Dr Ash Takyar, consultant psychiatrist, report 7 March 2023
81Dr Takyar assessed Mr Darmanin on 27 February 2023 on behalf of his solicitors.
82Dr Takyar obtained the history of the accident and the home invasion.
83Dr Takyar said, that by reason of the work-related injury alone, Mr Darmanin was suffering from a major depressive disorder and generalised anxiety disorder, which was in mild remission.[33]
[33]PACB 134
Which of the medical opinions should be accepted and the assistance which they provide
84Apart from Dr Condell, the medical evidence, up until the time of Dr Slesenger’s and Dr Wilde’s reports of November 2021, was relatively consistent. That is, put simply, Mr Darmanin:
(a) had suffered an injury to his neck at work and had ongoing neck pain and restriction, together with referred arm pain;
(b) could not return to his pre-accident employment and had ongoing work restrictions.
85There is, subsequent to November 2021, significant dispute between Dr Slesenger and Dr Wilde on one hand, and Dr Horsley and Dr Akil on the other.
86Referring, firstly, to the evidence of Dr Slesenger.
87Dr Slesenger, in his most recent report, said bluntly that:
(a) Mr Darmanin’s cervical spine injury, caused by the accident, had resolved. Indeed, Dr Slesenger said it had resolved back at the time when he first assessed Mr Darmanin on 16 November 2021;
(b) Mr Darmanin had no work restrictions.
88The VWA acknowledged that Dr Slesenger was “alone” in these opinions,[34] and conceded that it could not seriously maintain that Mr Darmanin’s work injury had completely resolved.[35] Given the weight of the evidence, that was an appropriate concession to make.
[34] T93, L31-T94, L1
[35]T94, L3-6
89I do not accept Dr Slesenger’s evidence.
90Dr Slesenger:
(a) based his opinion on matters of credit which are contrary to my findings;
(b) concluded the video surveillance was overwhelming, without undertaking and/or detailing any enquiry or analysis of the totality of Mr Darmanin’s circumstances;
(c) did not give credence to Mr Darmanin’s complaints of pain and restriction at the time of his examination;
(d) failed to analyse and give proper consideration to the investigations, assessments and treatment that Mr Darmanin had received from various treating medical practitioners since the accident.
91Putting Dr Slesenger’s evidence aside, I am then left with balancing Dr Wilde’s evidence to that of Dr Horsley and Dr Akil.
92Of all the medical evidence, it is Dr Horsley’s assessment and analysis which I find the most helpful.
93Having reviewed Dr Horsley’s evidence, I accept that she:
(a) undertook a thorough examination of Mr Darmanin in conjunction with a detailed analysis of his previous medical assessments, investigation and treatment;
(b) set out in detail his work history subsequent to the accident and analysed the demands;
(c) reached a conclusion based on the objective evidence in respect to the nature of Mr Darmanin’s spinal injury;
(d) identified the consequences to Mr Darmanin of his spinal injury;
(e) undertook an analysis of the impact which Mr Darmanin’s spinal injury had on both his activities of daily living and his work capacity.
94Dr Horsley, in her evidence, said it was her observation that Mr Darmanin presented in a “straightforward manner”.[36] That accords with my observations and findings in respect to Mr Darmanin.
[36]PACB 113
95Dr Horsley painted a very gloomy outlook for Mr Darmanin. It was her prognosis that Mr Darmanin would continue to suffer ongoing neck pain and he would have an increase in symptoms as time passes.
96Moving now to Dr Wilde. Dr Wilde examined Mr Darmanin on 17 November 2021 via Telehealth. He did not examine or meet with Mr Darmanin face to face.
97At the time of his initial assessment, Dr Wilde said that:
(a) Mr Darmanin’s employment had materially contributed to his neck pain;[37]
(b) Mr Darmanin was unfit for his pre-injury work;[38]
(c) Mr Darmanin could increase his current modified employment hours to thirty-eight hours per week;[39]
(d) he expected Mr Darmanin’s symptoms would continue to improve;[40]
(e) the prognosis was good.[41]
[37]DACB 104
[38]DACB 105
[39]DACB 105
[40]DACB 105
[41]DACB 105
98Subsequent to providing his first report, Dr Wilde was provided with:
(a) the video surveillance;
(b) the Recovre report dated 5 January 2023.
99Dr Wilde was asked to provide supplementary opinions after considering these materials. Dr Wilde did not re-examine Mr Darmanin.
100Dr Wilde, in his 13 February 2023 report, said, notwithstanding that he did not undertake an examination of Mr Darmanin, that:
(a) Mr Darmanin’s condition would have improved; and
(b) “he is now better” than when examined in 2021.[42]
[42]DACB 108
101It is difficult to understand how Dr Wilde could be so dogmatic in his conclusions in the absence of examining Mr Darmanin and obtaining an updated history. I do not accept these assertions made by Dr Wilde.
102It was Dr Akil who most recently examined Mr Darmanin. Dr Akil had a face-to-face consultation with him on 16 January 2023.
103Dr Akil said that:
(a) Mr Darmanin’s employment is a major contributing factor to his current condition;
(b) the prognosis is poor.
104In respect to Mr Darmanin’s work capacity, Dr Akil said that:
(a) Mr Darmanin could not return to his pre-injury duties;
(b) Mr Darmanin was struggling with working thirty hours per week;
(c) Thirty hours per week was the maximum that Mr Darmanin could undertake;
(d) Mr Darmanin’s capacity to work restricted hours and restricted duties was permanent.
105Having considered all of the evidence and having balanced up the competing medical opinions, I accept that, as a result of the accident, Mr Darmanin has suffered:
(a) Damage to the structures of the cervical spine at the levels of C5-6 and C6-7, most likely an aggravation of underlying degenerative change;
(b) As a consequence of the cervical spine injury, right brachialgia. The symptoms of the right brachialgia include:
(i)right arm pain;
(ii)loss of right arm reflex;
(iii)right arm sensory disturbance;
(iv)right retroscapular pain;
(c) also as a consequence of the cervical spine injury:
(i)headaches;
(ii)fatigue.
106I accept that:
(a) Mr Darmanin has suffered the consequences of his cervical spine injury for in excess of six years;
(b) the consequences of the cervical spine injury are ongoing;
(c) the prognosis is poor;
(d) the pain and consequences from the cervical spine injury are permanent.
107I do not accept that Mr Darmanin’s cervical spine injury has resolved.
Does Mr Darmanin suffer a serious injury for pain and suffering purposes?
108While the VWA said they did not concede that Mr Darmanin had suffered a serious injury for pain and suffering purposes, the VWA did say the pain and suffering consequences were not the key focus of their cross-examination of Mr Darmanin.[43]
[43]T84, L29 – T85, L5
109I accept that Mr Darmanin continues to suffer from ongoing neck pain, particularly on the right side. He has suffered this pain since the date of the accident. Mr Darmanin has undergone a range of treatments. These treatments have included nerve root injections and branch blocks.
110I accept that Mr Darmanin conceded there were occasions when he did not have neck pain. However, he said this was “not very often”.[44] I accept that, over and above the dull aching at the base of his neck which he suffers most of the time, he also suffers:
(a) episodes where his neck locks up and where he suffers flare-ups;
(b) times when the pain is severe;
(c) debilitating headaches;
(d) referred arm pain and sensory disturbance.
[44]T81, L7-10
111I accept that Mr Darmanin’s prognosis is poor and the pain consequential to his cervical spine injury will continue into the future. Indeed, it will be lifelong. I accept that these pain consequences, for a man who is aged fifty-seven, are, in themselves, a serious consequence.[45]
[45]See the analysis of Maxwell P in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
112I also accept that Mr Darmanin, by reason of his cervical spine injury:
(a) Has given up golf. Prior to the accident, he was a keen and capable golfer. His handicap was 11;
(b) No longer rides his motorcycle and is going to dispose of it;
(c) Has disposed of his boat;
(d) Is impacted in his capacity to participate and enjoy a range of other recreational interests, such as swimming, gym and fishing;
(e) Is impacted in his capacity to undertake a range of domestic activities as he had prior to the accident.
113For completeness, I also note that Mr Darmanin has continued to engage in a range of activities.[46] For example:
(a) his involvement in the Carlton Football Club cheer squad;
(b) he breeds Flemish giant rabbits;
(c) he continues to do some activities around the house;
(d) he continues to work thirty hours per week.
[46]In such applications, such regard must be had to what is retained as well as what is lost. See, for example, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
114While Mr Darmanin has endeavoured to maintain a level of activity, as I have previously said, I accept him as being a stoic man who has tried to make the best of his post-accident life. I accept that there are many aspects of Mr Darmanin’s life which have been impacted by his cervical spine injury. I accept these consequences will be lifelong.
115Having considered all of the evidence, I accept that Mr Darmanin has, for pain and suffering purposes, suffered a serious injury.
The vocational assessments and indicative wage rate reports
116The VWA relied upon two reports from Recovre. The first, dated 10 November 2021, was authored by Ms Nikki Burden, vocational consultant, and Ms Janette Ash, occupational therapist. The second, dated 5 January 2023, was authored by Ms Robyn Willett, vocational consultant, and Ms Ash. These reports ran to some sixty-seven pages. The great majority of the content was dedicated to the description of various jobs and hypothetical rates of pay.
117The first report was said to provide a”
“… comprehensive labour market analysis on truck driver/storeman roles within Victoria as well as labour market information pertaining to jobs identified in a Nabenet report dated 19 March 2019”.[47]
[47]DACB 30
118For this report, I note:
(a) Mr Darmanin was not interviewed by the authors;
(b) the Nabenet report referred to is not in evidence.
119At the time of the second report, Mr Darmanin was interviewed. He told Ms Willett and Ms Ash:
(a) he was working thirty hours per week for Ason Warehousing,
(b) he could not work in a full-time capacity because of his injuries.
120Notwithstanding Mr Darmanin’s advice to them, Ms Willett and Ms Ash, relying upon Dr Slesenger’s first report, identified various jobs which they asserted were suitable for Mr Darmanin. However, this was qualified:
“Recovre acknowledges that not all roles within each occupation would be suitable for Mr Darmanin to perform however job roles can and do exist within the nominated occupations which are vocationally and physically and psychologically suitable for him to perform.”[48]
[48]DACB 70
121The wage rates in these jobs varied between $972 per week and $1,512 per week.[49]
[49]DACB 70
122Mr Darmanin relied upon a report from Flexi Personnel Pty Ltd of 2 March 2023. This report went to average gross earnings for truck drivers and HR truck drivers.
123These various reports were of limited assistance to me. My assessment of Mr Darmanin’s work capacity was assisted by his evidence, and that of the medical practitioners; particularly in respect to the hours which he can now work. While the rates which Mr Darmanin could hypothetically earn in various jobs may be of assistance to me, any ultimate findings in respect to his “with injury” earning capacity is dependent upon my assessment of the vocational consequences of his cervical spine injury.
Is Mr Darmanin’s cervical spinal injury a serious injury for the purposes of economic loss?
124In the years prior to the accident, Mr Darmanin had an impressive work history. In the last completed financial year prior to the accident he had earned $93,157. The 60 per cent threshold figure based on his gross earnings rounds out to $1,075 per week. There was no dispute in respect to these figures.[50]
[50]T89, L2-7
125The question then becomes, what is Mr Darmanin’s “with injury” earning capacity?
126The VWA said that:
(a) the video surveillance established that Mr Darmanin had a capacity to undertake a range of heavy activities and work full time;
(b) I should accept Dr Slesenger’s analysis that Mr Darmanin could work on a full-time basis;[51]
(c) any impairment for employment is not due to Mr Darmanin’s cervical spine injury; rather, to his right knee injury;[52]
(d) Mr Darmanin was being underpaid by Ason Warehousing based on one interpretation of the VWA labour market analysis;[53]
(e) Mr Darmanin is a well-regarded employee with many skills, which would enable him to obtain full-time work.[54]
[51]T87, L11 ꟷ T88, L17 and T91, L14 ꟷ T93, L10
[52]T94, L23 ꟷT95, L15
[53]T96, L6 ꟷ T97, L8
[54]T97, L14
127Mr Brett said that:
(a) Mr Darmanin was working to capacity;
(b) Mr Darmanin had obtained the job at Ason Warehousing via the WISE scheme and was fortunate that the employer kept him on after the period of supported employment expired;
(c) Mr Darmanin is fortunate to have a benevolent employer who accommodates his cervical spinal injury and his consequential restrictions, and the need to have regular time off;
(d) Mr Darmanin’s “with injury” earnings are $780. This was well below the 60 per cent threshold;
(e) At Mr Darmanin’s current rate of pay, even if he were working thirty-eight hours per week, he would still only earn $988, which was below the 60 per cent threshold. Even working forty hours per week left Mr Darmanin below the 60 per cent threshold;
(f) Mr Darmanin is in fact working at the maximum value for which he can sell his labour in the open marketplace;
(g) Even applying the shift rate to Mr Darmanin’s thirty hours per week, it would only come to a figure of $1,014; still below the 60 per cent threshold.
128Mr Brett said, whichever way you looked at it, Mr Darmanin met the 60 per cent threshold for the purposes of his economic loss application.
129In the course of the application, Mr Darmanin’s evidence in respect to his “with injury” earning capacity, was well tested by the VWA.
130As previously set out, I accept that Mr Darmanin was a witness of truth. Having considered all of the evidence, I accept that Mr Darmanin:
(a) is a stoic man;
(b) has the restrictions for work, which he set out in his evidence;
(c) after his employment was terminated by Chalmers Industries, he worked hard to get himself back into the workforce in a suitable job;
(d) has provided Ason Warehousing with open disclosure about his cervical spine injury and the consequences which flow from this injury;
(e) does suffer, by the end of his six-hour workday, the increased pain, fatigue and other consequences which he explained to the Court;
(f) does require a lot of days off due to pain/soreness;
(g) continues to be fortunate that Ason Warehousing is prepared to accommodate his work restrictions;
131There was no evidence that Mr Darmanin:
(a) is being underpaid by Ason Warehousing;
(b) is precluded from working additional hours by any right knee injury.
132For the reasons set out earlier in this judgment:
(a) I do not accept the video surveillance established that Mr Darmanin has the capacity for:
(i)full-time work;
(ii)the duties set out by Dr Slesenger and contained in the Recovre reports;
(b) I accept the analysis and evidence of Dr Horsley and Dr Akil in respect to Mr Darmanin’s work capacity.
133I found Dr Horsley’s evidence particularly helpful in my consideration of issues to do with Mr Darmanin’s work capacity.
134Having considered all of the evidence, I find that Mr Darmanin:
(a) is working to capacity;
(b) has found himself in a job with Ason Warehousing where he can, and is, in fact, maximising his “with injury” work capacity;
(c) is in a job where his employer accommodates his cervical spine injury and consequential limitations, including his need to take very regular days off work;
(d) is earning $780 per week and that:
(i)represents what he can earn in the open market, given his cervical spine injury and the consequences which flow from it;
(ii)fairly represents his “with injury” earning capacity;
(e) is currently losing in excess of 40 per cent of his pre-injury earnings;
(f) has a permanent loss of 40 per cent of his pre-injury earnings, which is permanent;
(g) does satisfy the economic loss test set out in the Act.
Conclusion
135Mr Darmanin will be granted certificates for both pain and suffering and economic loss.
136I will hear the parties in respect to the formal orders and on the question of costs.
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