Duspara v VWA
[2024] VCC 508
•24 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04933
| Mario Duspara | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2024 | |
DATE OF JUDGMENT: | 24 July 2024 | |
CASE MAY BE CITED AS: | Duspara v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 508 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – workplace injury – paragraph (a) and (c) - pain and suffering damages – physical injury to right fourth and fifth digits and psychiatric injury - loss of earning capacity damages – whether the plaintiff has satisfied the statutory standard of a serious injury application – credit and reliability
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s335
Cases Cited:Transport Accident Commission v Katanas (2017) 262 CLR 550; Petkovski v Galletti [1994] 1 VR 436; Rowe v Transport Accident Commission (2017) 83 MVR 195; Whisprun Pty Ltd v Dixon [2003] (2003) 200 ALR 447
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Mr B Cooper | Carbone Lawyers |
| For the Defendant | Mr S Scully | IDP Lawyers |
HER HONOUR:
Introduction
1Mr Duspara is a forty-nine year old former lead rigger. He sustained an injury to the fourth and fifth fingers of his dominant right hand and psychological injuries in a traumatic incident on 12 June 2019. He was working on the 15th and 16th floors of a construction site cutting excess reinforced concrete bars with an angle grinder on the day of the injury. It was a wet and rainy day. While the other workers had been sent home, Mr Duspara was required to stay and complete the job. As he cut the last bar of reinforced concrete, Mr Duspara lost his footing on the wet surface and hit his face against the handrail.[1] The angle grinder caught the steel and cut into his hand during the fall. When Mr Duspara removed his glove, he saw that his little finger was “…hanging by the …nerves” and the angle grinder had cut his other fingers to the bone.[2]
[1]Exhibit P1, Plaintiff’s Amended Court Book (“PACB”) 7 at paragraph [29]; Transcript (“T”) 21, Lines (“L”) 26-30
[2]Exhibit P1, PACB 7 at paragraph [30]; T22, L7-15
2He says that he has permanent pain, symptoms, and restrictions in his right hand, and fourth and fifth fingers, and suffers from frequent nightmares, flashbacks and panic attacks as a result of the injuries sustained in this incident.
3Mr Duspara has not had any treatment for his nightmares, flashbacks and panic attacks, nor does he take any medication.[3]
[3] I note that this is not a barrier to success per Transport Accident Commission v Katanas (2017) 262
CLR 550, 562 at paragraph [23].
4He makes an application for leave to proceed pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 based on both paragraphs (a) and (c) of the definition of serious injury.
5Counsel for the defendant conceded that this case essentially turned on whether Mr Duspara was entitled to leave to proceed pursuant to paragraph (c). Counsel for the defendant conceded that if I were to find that Mr Duspara had a 40 per cent or more loss of earning capacity arising from a paragraph (c) injury, Mr Duspara would be entitled to leave to proceed with a claim for damages for his pecuniary loss and his pain and suffering.
6The questions to be resolved in this case are:
(a) Is Mr Duspara a credible and reliable witness?
(b) Does Mr Duspara have a psychological injury that arose out of or in the course of employment, and if so, is it permanent?
(c) If yes, does Mr Duspara have a capacity for suitable employment?
(d) If yes, is this productive of a 40 per cent or more loss of earning capacity?
7Having considered all the evidence in this case, I have found that Mr Duspara is entitled to leave to proceed pursuant to paragraph (c) for his pecuniary loss and his pain and suffering.
Brief relevant background matters
8Mr Duspara was born in Croatia and in or around 1985, he and his family left Croatia and migrated to Australia.[4] He has primarily worked on construction sites, as a rigger, crane operator, or as a labourer/apprentice carpenter. He has also worked in other roles, including as a miner, pick/packer, forklift driver, and returns officer.
[4]Exhibit P1, PACB 4 at paragraph [5]-[6]
9He resides in Deer Park with his wife and their three sons.
10He was involved in a motor vehicle accident in or around 2008, which he said he recovered from with rest. He also suffered from back pain in or around 2013 due to the repetitive, heavy lifting at one construction site he worked on, which has since resolved.[5]
[5]Exhibit P1, PACB 6 at paragraphs [20]-[21]
11Following the incident on 12 June 2019, Mr Duspara attended the Emergency Department at Western Health Sunshine Hospital, where he was diagnosed with a fracture of the hand after various scans and tests had been performed.
12On 13 June 2019, Mr Duspara had reconstructive surgery on his fourth and fifth right hand digits.[6] This was performed by Dr Wai-Ting Choi, a specialist plastic and reconstructive surgeon. On 19 June 2019, he attended the OT Hand Therapy Unit at Western Health Sunshine Hospital for management of his injury.[7] He underwent physiotherapy for six months after his surgery to assist with his ongoing physical symptoms.[8] Afterwards, he consulted with his general practitioner, Dr Enayatullah Hamidi, and attended physiotherapy on a monthly basis for six months.[9]
[6]Exhibit P1, PACB 8 at paragraph [35]
[7]Exhibit P3, PCB 196
[8]Exhibit P3, PCB 196
[9]Exhibit P1, PACB 8-9
13Mr Duspara returned to work on light duties in or around August 2019. The duties included sweeping, stocktake, checking the plant and equipment, assisting the yard manager, spotting, general clean up and checking deliveries.[10] He continued in this role until the employer went into liquidation in November 2019.[11]
[10]Exhibit P1, PACB 12 at paragraph [63]
[11]T46, L19-25; T46, L26-27
14I have considered the affidavits of Mr Duspara and his wife Ms Duspara, the evidence Mr Duspara provided at the hearing, the various reports, records and other expert material tendered at the hearing, and the submissions made by counsel in arriving at my decision. I have reviewed these together with the transcript in considering the evidence. I shall refer to them to the extent necessary in my judgment.
15As outlined earlier, counsel for the defendant conceded that this case really turned on whether Mr Duspara was entitled to leave to proceed pursuant to paragraph (c).
16I have thus considered the evidence that relates to Mr Duspara’s alleged psychological injury, symptoms and consequences, and credit and reliability.
Consideration of the evidence
Mr Duspara’s affidavit evidence
17Mr Duspara swore three affidavits in this matter on 12 April 2023, 18 March 2024 and 15 April 2024.
18He referred to his nightmares, panic attacks and flashbacks in each of his first and second affidavits.
19In his first affidavit, Mr Duspara said:
“As a result of suffering my work-related injuries, my sleep has been affected. I suffer recurring nightmares of falling from the fifteenth level of the building where I injured my hand. I usually wake up very stressed and anxious, which makes it harder for me to fall back asleep again. I have these nightmares regularly, so I only get about 4 hours of proper sleep a night. As a result I wake up tired and agitated in the mornings.
…
… When I drive past the site where the incident happened, my breathing gets heavier, and my anxiety is triggered. This results in immediate panic attacks. I try to reduce my anxiety by deep breathing techniques and washing my face with cold water, as recommended by my treaters.”[12]
[12]Exhibit P1, PACB 10 at paragraphs [56]-[57]
20In his second affidavit he said that:
“…I still suffer from nightmares which are worse when I go past construction sites. When I wake up from a nightmare my heart races and it takes me a while to calm down to the point that I can get back to sleep. I struggle to get more than four hours of uninterrupted sleep a night.
I also suffer from flashbacks and intrusive thoughts. The flashbacks come on at different times but are worse when I’ve been near construction sites. My heart races and I have to stop and take time to calm myself down.”[13]
[13]Exhibit P1, PACB 15-16 at paragraphs [12]-[13]
21His third affidavit related entirely to his efforts to obtain suitable employment, and thus he did not depose to his psychological symptoms in that affidavit.
Mr Duspara’s evidence at the hearing
22Mr Duspara was extensively questioned about his psychological symptoms and his absence of treatment for them at the hearing.
23He was asked about his panic attacks during cross-examination at the hearing:
“How often do you get them?---I get panic attacks every time I drove [sic] past a construction company.
Every time you drive past a?---A construction company.
What do you mean by - - - ?---A new building that's getting built, a new – you know, that's got pro build on the sign and when I see that, I don't know, I just get anxiety.
What - - - ?---Like a heat, like from underneath here [pulling at the top of his shirt], it's like you turn on a heater, inside my – I can't breathe properly.”[14]
[14]T60, L1-9
24He was asked about his sleep, nightmares and panic attacks in re-examination:
“How do you sleep, generally?‑‑‑Sleep - on nights, I have nightmares of - like I said, falling in the hole and waking up.
Yes. Apart from that, how do you sleep?‑‑‑Normally, I sleep good.
Normally, you sleep good?‑‑‑Yes.
So what's the problem with sleep?‑‑‑Nothing. Just a nightmare.
Right. And how often are they?‑‑‑Once or twice a week.
All right. How comfortable are you talking about your nightmares and your panic attacks?‑‑‑Not comfortable at all.
Why is that?‑‑‑I have no answer.
Sorry?‑‑‑I have no answer for why that is.”[15]
[15]T57, L28-31; T58, L1-9
25He was asked why he had not sought any treatment for his nightmares, panic attacks and flashbacks in cross-examination:
“But you haven't seen a psychologist or a psychiatrist at all, have you?---No, I don't, I don't like going to doctors.
And it's been recommended to you that you do see a psychologist?---I don't like – I don't like going to doctors, I don't like taking medication.
But they're recommending this to help you. Why are [sic] you going to follow through on something that might help you?---I doubt this would help me. Probably make it worse.
Is that because there's nothing wrong with you? Is that why it's not going to help you? Because the nightmares and the flashbacks aren't actually a thing?---Look, I don't think they can help me, they're there – the nightmares are there, the flashbacks are always there.
If Dr Damodaran has recommended that you take Prazosin medication, which is a specific medication to treat nightmares and the like – why wouldn't you take that?---I don't know. I don't like medication, it makes me drowsy.”[16]
[16]T50, L30-31; T51, L1-15
26Mr Duspara was asked whether he had discussed his flashbacks and nightmares with Dr Hamidi in cross-examination:
“Have you ever told him [Dr Hamidi] about any nightmares or any intrusive thoughts or flashbacks of the incident?---Yes.
When did you tell him that?---About flashbacks and nightmares.
When did you tell him that?‑‑‑In one of our meetings.
Well ‑ ‑ ‑?‑‑‑He did not know.
‑ ‑ ‑ is Dr Hamidi your treating general practitioner?‑‑‑Yes.
Well, if you told Dr Hamidi, surely he would have recorded that in one of his notes or his reports, wouldn't he? When did you tell him? What did you tell him?‑‑‑That I couldn't sleep, that I had nightmares of falling in the hole.
Okay?‑‑‑Waking up screaming.
Okay. So there is no reference to any nightmares or waking up screaming in any of the reports from Dr Hamidi, or in his notes. Are you mistaken about that?‑‑‑No.
…
Okay. But there's absolutely nothing in any of the notes from Dr Hamidi to say that you're having nightmares, intrusive thoughts or you're averse to going to construction sites. That's just something that has come up at the time of your first affidavit?‑‑‑I just never spoke about it.”[17]
[17]T42, L31; T43, L1-14; T44, L3-7
27He was also asked whether he had attended Dr Hamidi for any psychological issues in cross-examination:
“You attended Dr Hamidi – and I'll take you to the record, I'll just ask you about it. Have you attended Dr Hamidi for any psychological issues?---No.
Did you say no?---No. Psychological?
At any stage have you complained of any psychological issues when you've seen Dr Hamidi?---He might've had a chat about it, I can't remember, can't recall.
So December of 2022, there's a record in Dr Hamidi's notes[18] – and you can tell us if that's correct or not that you were under a lot of stress with your injury as WorkCover not paying you. At that point in time your weekly payments had been terminated?---That's right, yep.
"Low mood, lack of sleep and concentration, financial issues."?---Yes, a lot of pressure.
"Next week will have a court decision about the future and entitlement." What's that in relation to? Is that a conciliation or something? Do you know what that was? ---No.
"Seeing me for regular work – WCC" – is it certificates of capacity or something?---That's right.
"Stressed and upset. Counselled, WCC for another month issued. Continues home management. If any concerns, see a psychologist for formal counselling." Do you remember him saying that to you?---I think so.
Have you ever returned to him with any concerns and seek psychological counselling?---No.”[19]
[18]Exhibit D8
[19]T42, L4-30
28Mr Duspara was asked about how he coped in the yard when he returned to work on light duties in re-examination:
“How did you cope with working in the yard mentally?---No good.
What do you mean?---I felt like I was in the wrong place, I wanted to be on site.
You wanted to be on site?---On site.
Why is that?---Because that's what I know. I felt lost in that yard.”[20]
[20]T61, L5-10
29Mr Duspara said that he had applied for over 300 positions that were largely in the construction industry.
30He was asked how he thought he would go with his panic attacks if he was offered one of these positions. He said:
“---I don't know. I haven't thought ahead like that.
Sorry?---I haven't thought about the panic attacks at all. I haven't thought about anything. The only thing that was in my mind was providing and paying – make sure my family's got something to eat.”[21]
[21]T60, L15-20
31He was asked about the calluses on his right hand in cross-examination. He said:
“Now, Dr Slesenger has noted, when he looked at your hands, that there seemed to be calluses and dirt on your hands? ---Definitely not.
You're not doing anything outside of work?---No, they're permanent, they're always there.”[22]
[22]T49, L9-13
32He was asked about the calluses in re-examination. He said:
“Those calluses – when did they appear on your hands?---Years ago, after the mines.
Is there anything you do now with your left hand or your right hand that causes you calluses?---No.”[23]
[23]T53, L18-21
33He was asked about playing the piano (or keyboard) and guitar and mixing music. He said that he could still play the guitar, and that his main problem was playing the keyboard. He said that he couldn’t play the keyboard anymore because he couldn’t hit keys when he needed to due to pain.[24] This also affected his ability to mix music, as he usually played the piano to mix with the music.[25] He said that he used to spend hours doing it, but now he might do five or ten minutes, before his hand started to hurt.[26]
[24] T40, L21-23
[25] T57, L13-16
[26] T57, L13-16
Ms Natasha Duspara’s affidavit evidence
34Ms Natasha Duspara, Mr Duspara’s wife, said in her affidavit sworn on 15 April 2024 that:
“Mario’s sleep has been impacted and he often wakes me up during the night. He wakes up a lot and complains of pain in his hand, but he also tells me about nightmares he has where he falls in a hole. He often complains of the same nightmare.”[27]
[27]Exhibit P6, PACB 174 at paragraph [13]
35She also said:
“Mario is also a lot more short tempered and gets easily frustrated. There are times where it feels like we have to be careful around him as he is much more easily upset. His mood changes can put the family on edge and it upsets the kids. He also spends more time sleeping during the day.”[28]
[28] Exhibit P6, PACB 174 at paragraph [17]
36She also said that Mr Duspara:
(a) had stopped playing the piano and she had not seen him mix records;[29] and
(b) had been the main provider for the family and had worked very hard in the past. He had applied for many jobs and had not been successful in those applications. Her impression was that he had become a lot more depressed and anxious since receiving those rejections and that he talked in a way that made her feel like he had lost confidence.[30]
[29] Exhibit P6, PCB 174 at paragraph [14]
[30] Exhibit P6, PCB 174 at paragraph [16]
Plaintiff’s medical reports
Dr Enaytullah Hamidi, general practitioner
37Dr Hamidi is Mr Duspara’s treating general practitioner.
38In his report of 2 February 2023, he said that Mr Duspara had fallen into a deep depression due to so many negative responses to his applications for employment and financial difficulties as his payments had stopped the prior year.[31]
[31] Exhibit P2, PACB 178
39In his report of 30 October 2023, he diagnosed Mr Duspara as suffering from secondary anxiety and depression. He noted that when he consulted Mr Duspara in December 2022 he looked very stressed and depressed secondary to his work-related injury, which in turn was affecting his mood, concentration, motivation, and confidence.[32]
[32] Exhibit P2, PACB 178
40He said that Mr Duspara had low mood, lack of sleep and concentration due to so many negative responses and financial difficulties and that he needed counselling and support.[33]
[33] Exhibit P2, PACB 180
41Dr Hamidi said that the stress of his work related issues had resulted in Mr Duspara suffering from the subsequent psychological symptoms, which in turn could affect his social life. He also stated he would expect this to get better when the work related issues had been settled.[34] He also said that he needed ongoing counselling and support.[35]
[34] Exhibit P2, PACB 181
[35] Exhibit P2, PACB 181
42Dr Hamidi’s note of 9 December 2022 reads as follows:
“Under lots of stress with his injury, as WC not paying him
Low mood, lack of sleep and concentration, financial issues
Next week will have court decision about his future and entitlement
Seeing me for regular WCC
Stressed and upset
Counselled
…
WCC for another month issued
Continue same management
If any concerns to see a psychologist for formal counselling”[36]
[36]Exhibit D8
43Mr Duspara was not referred for counselling or support by Dr Hamidi despite Dr Hamidi noting that “if any concerns to see a psychologist for formal counselling”,[37] and that he needed counselling and support[38] in his report of 30 October 2023.
[37] Exhibit D8
[38] Exhibit P2, PACB 180
Dr Saji Damodaran, consultant psychiatrist
44Mr Duspara’s solicitors arranged for him to be reviewed by Dr Damodaran via telehealth on 8 February 2024.
45Dr Damodaran said that Mr Duspara described feeling as follows in relation to the incident that caused the injury:
“He was terrified at that point in time, he could have fell through the gaping hole of the lift shaft if he was one level down and he was also frightened of the risk of injury which could have been much more serious with the grinder.”[39]
[39] Exhibit P4, PACB 205
46After describing the treatment that Mr Duspara had for his hand injury, he said:
“Mr Duspara was hoping that the hand would heal, and he would be able to return to work. However, he was concerned about the risk that he was facing at that time. He was concerned about the nightmares he was getting. He had ongoing intrusive memories about the accident which kept playing in his mind. He was concerned that he had to work again in similar situation, and he was losing confidence whenever he was going near the construction site. He was having a level of flutter of the heart, and he felt uneasy and had a sense of sweating. Mr Duspara was worried about the turn of events by this time.”[40]
[40] Exhibit P4, PACB 205
47Mr Duspara told Dr Damodaran that during the COVID-19 lockdown period when he was at home, he was becoming concerned about the impact the injury was having on his income, his ability to do activities with his children, his future employment prospects, and his ability to return to his previous earning capacity.
48Dr Damodaran reported that Mr Duspara told him that:
“During this period, he was also having ongoing intrusive memories regarding the accident which played on his mind. He was having a level of lowered mood and a general lack of confidence. He was becoming progressively demoralised. By 2022 he noted that he was sad, he was emotional, he had some dark thoughts. However, he would never do it as he had to be there to support his family. His children were quite active in their soccer teams, and he could not really afford to pay their fees to the club, and he had to pull the out in 2024.”[41]
[41]Exhibit P4, PACB 206
49He later said that Mr Duspara denied any suicidal thoughts or psychotic symptoms.[42]
[42] Exhibit P4, PACB 206
50With respect to current complaints and symptoms, he said:
“Emotionally he is going through a period of lowered mood, some level of preoccupation and anxiety. He is still having the intrusive memories, certain avoidance-type symptoms, hypervigilance. He startles easily. He is quite anxious when being [sic] on a construction site.
His sleep quality is still affected. He can fall asleep; however, sometimes he wakes up in the night with a startling dream that he has just fallen through the shaft, and he wakes up sweating.
He does not have any suicidal thoughts. He does not have any nightmares. There are no psychotic symptoms.”[43]
[43]Exhibit P4, PACB 207
51With respect to his examination of Mr Duspara, he said:
“His affect was one of mild anxiety and depression and the mood was of anxiety and depression. He became quite teary when he was talking about the dark thoughts. There were no formal thought disorders. The thought content was dominated by the preoccupation regarding the physical injury and the limitations as well as the traumatic re-experiencing and avoidance symptoms that he was experiencing.”[44]
[44]Exhibit P4, PACB 208
52Dr Damodaran quoted paragraph 31 of Mr Duspara’s first affidavit[45] in his review of the relevant documentation:
“I believe this incident could have been avoided if there was a handrail on the fifteenth floor where the job was originally meant to be done. However, because there was no handrail, there was no way I could have done the job without the risk of falling through the elevator shaft. The incident could have also been avoided if the managers allowed the job to be finished the following day, as there would have been more people around me to assist. The reason why the job needed to be done that day was because the managers didn’t want to keep the crane onsite due to the inconvenience of keeping it there until the next morning. The rain also made the job more dangerous, as the platforms I was working on were slippery.”
[45] Exhibit P1, PACB 7 at paragraph [31]
53In his summary and opinion, he said that:
“He was also affected by the near miss nature of the injury and the risk of things that could have gone wrong which continued to play on his mind along with intrusive memories and avoidance symptoms, certain hypervigilance symptoms and increased physical arousal symptoms.”[46]
[46]Exhibit P4, PACB 210
54Dr Damodaran said the following regarding Mr Duspara’s pain and suffering:
“The persistent pain symptoms along with the adjustment disorder is impacting his general enjoyment in relation to his social and recreational activities. He was an amateur DJ, and he was also making music. He was playing piano. He is not able to do any of those recreational interests. He is also having difficulties in social engagement, participating in his motor sports, working on his cars. All these quality-of-life issues and distress are dominating his thinking pattern which is also impacting on intimacy in the relationship. Overall, the psychosocial impact of the injury is limiting his quality of life, and it is impacting his enthusiasm and his enjoyment.”[47]
[47]Exhibit P4, PACB 213
55His opinion was that Mr Duspara:
(a) was suffering from an adjustment disorder with mixed anxiety and depressed mood along with features of traumatisation;[48]
(b) had no capacity to perform his pre-injury duties because of the psychiatric injuries;[49]
(c) had an incapacity that was likely to be permanent, that is, to last for the foreseeable future;[50]
(d) would be capable of suitable employment which took into account his condition, incapacity, age, education, place of residence, skill and work experience;[51]
(e) had the capacity to work on a full-time basis, however there were significant restrictions with his physical limitations, specifically that he was restricted from working on high-rise buildings, cranes, and situations where it was slippery which was likely to cause further worsening of his avoidance symptoms;
(f) required psychological therapy and consideration of anti-arousal medication like prazosin, which would bring down his level of arousal, especially at nighttime, and that it was important that he see a psychologist for at least six to nine sessions to assist him with managing his sleep difficulties, arousal and his avoidance symptoms; and
(g) would be precluded or restricted in undertaking his recreational activities to a moderate extent, and that incapacity would continue for the foreseeable future.[52]
[48] Exhibit P4, PACB 211
[49] Exhibit P4, PACB 211
[50] Exhibit P4, PACB 211
[51] Exhibit P4, PACB 211
[52] Exhibit P4, PACB 211-212
Dr Robyn Horsley, occupational physician
56Mr Duspara saw Dr Horsley at the request of his solicitors.
57Dr Horsley obtained a history from Mr Duspara regarding his symptoms. She reported that:
“From the psychological perspective, Mr Duspara stated that he experiences nightmares, three times a week and flashbacks, three times per week, particularly of falling down the elevator shaft. He stated that he is not irritable or short to temper. He is not tearful or emotional. He sleeps poorly. He has an afternoon sleep twice a week for two to three hours. Whenever he goes near a construction site, he ‘feels his heart beating and he is unable to breathe’. He experiences panic attacks whenever he is around constructions sites and whenever he sees his mortgage and cannot pay it.”[53]
[53] Exhibit P5, PACB 218
58Dr Horsley noted that his medical management was overseen by Dr Hamidi on an ‘as needs’ basis. She said that Mr Duspara told her that Dr Hamidi:
“… has recommended that he consult a psychologist, but Mr Duspara has been resistant. He stated that he ‘can manage his issues himself’.”[54]
[54] Exhibit P5, PACB 217
59With respect to Mr Duspara’s prognosis and opinion, she stated:
“Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. Mr Duspara is permanently unfit to return to his previous roles as a rigger, dogman, construction worker. He experiences panic attacks whenever he passes by a construction site. I do not believe that he has any ability to work on a construction site at this point in time, and likely, into the foreseeable future, given that the injury occurred in 2019. I rely however, upon my psychiatrist colleagues for confirmation and expert opinion. Any return to work will need to be away from construction sites.”[55]
[55]Exhibit P5, PACB 220
60She also commented that:
“Mr Duspara cannot work on construction sites – he experiences panic attacks.
…
I believe that he is permanently unfit to return to construction sites, on the basis of his history of panic attacks still occurring, five years post-injury. Therefore, his ability to return to rigging, dogman and heavy manual work is now beyond his capacity on psychological grounds.”[56]
[56]Exhibit P5, PACB 221
61When asked about whether Mr Duspara is likely to have the capacity to perform suitable employment, she said the following:
“I believe Mr Duspara will develop a capacity for suitable employment within the restrictions outlined above, provided he gains access to a specialist occupational therapist and receives desensitisation therapy of the right fifth finger and gradually increases his keyboard capacity and stamina. The other option is exploration of bespoke protection / immobilisation of his fifth finger while keying.
He will also require an upgrading of his computer-based skills and possibly training in a customer facing course. Access to WISE (WorkSafe Incentive Scheme for Employers) would increase his attractiveness to a new employer.
I note that he worked as a returns officer a number of years ago, for two years. This type of work would be suitable. Mr Duspara presents in a personable manner. Customer facing work, with minimal manual handling within the restrictions as outlined above would be suitable.
Any return to work would need to be part-time in the first instance, because of his lengthy period of time out of the workforce. It would need to be in the vicinity of 15-20 hours per week, gradually increasing in hours as he is able to cope. The vocational focus should be on returning him to work. He is 49 years of age. He requires further proactive management to assist him to return to the workforce.”[57]
[57]Exhibit P5, PACB 221
62Dr Horsely was subsequently provided with the Recovre report dated 20 March 2024. She provided a supplementary report on 21 March 2024 in response to that.[58]
[58]Exhibit P5, PACB 223
63Of the five positions identified as being suitable by Recovre, which I will refer to below, Dr Horsley ruled out four on the basis that they were located on construction sites and thus not suitable because of Mr Duspara’s psychiatric restrictions.[59]
[59] Exhibit P5, PACB 225
64The remaining position was that of a forklift driver. Dr Horsley thought that Mr Duspara would have difficulty working as a forklift driver in a warehouse environment for the same reason that he could not work on construction sites: i.e., because of his panic attacks.[60]
[60] Exhibit P5, PACB 225
65Thus, Dr Horsley’s opinion was that none of the positions identified by Recovre were suitable once Mr Duspara’s psychological symptoms were considered.
66I note that Dr Horsley listed the positions identified by Job Seeking Services in their report of 23 December 2019 in her report of 21 February 2024. However, the Job Seeking Services report was not tendered at the hearing and thus I have inferred that the defendant did not rely on the positions identified as constituting suitable employment.
Mr Ash Moaveni, orthopaedic surgeon
67Mr Duspara saw Mr Moaveni on 27 April 2023 and 21 December 2023 at the request of his solicitors in connection with his physical injuries.
68Mr Moaveni said “Mr Duspara did not report any sleep disturbance, and noted he is a ‘heavy sleeper’”.[61]
[61] Exhibit P3, PACB 186
69Later in his report, Dr Moaveni noted that:
“Mr Duspara reported that he continues to experience minimal sleep disturbances due to his pain.”[62]
Defendant’s medical reports
[62]Exhibit P3, PACB 187
Mr Peter Dixon, plastic and reconstructive surgeon
70Mr Duspara saw Mr Dixon in connection with his claim for compensation at the request of Allianz, the WorkCover insurer, on two occasions. He provided reports dated 20 February 2020 and 11 June 2020.
71There is no reference to mental health symptoms in his reports.
Dr Joseph Slesenger, occupational physician
72Mr Duspara saw Dr Slesenger on two occasions, the first being at the request of Allianz, and the second being at the request of the solicitors for the defendant. He provided two reports dated 5 May 2022 and 29 February 2024.
73He did not have Dr Damodaran’s report of 21 February 2024, nor Dr Horsley’s report of 21 February 2024, when preparing his report of 29 February 2024.[63]
[63] See material listed under ‘Documentation’, Exhibit D2, DCB 44
74Dr Slesenger diagnosed Mr Duspara as having a psychological impairment but noted that this was outside his area of expertise.[64]
[64] Exhibit D2, DCB 55-56
75He said that the incident-related (physical) impairment had resolved and that he believed Mr Duspara could return to work, performing pre-injury duties and working pre-injury hours.[65]
[65] Exhibit D2, DCB 56
76He found that he had extensive callosities on his left and right hands with ingrained dirt on examination.[66]
[66] Exhibit D2, DCB 10-11
The parties’ contentions
77The contentions of the parties focussed on how I should analyse Mr Duspara’s evidence, particularly with respect to credibility and reliability.
The defendant’s contentions
78As outlined above, counsel for the defendant conceded that Mr Duspara’s case really turned on whether he established that he had a 40 per or more loss of earning capacity. This was subject to whether I accepted Mr Duspara as a credible and reliable witness.
79Counsel for the defendant submitted that:
(a) There were inconsistencies in Mr Duspara’s evidence that raised issues about his credibility and reliability:
(i)His failure to advise Dr Hamidi about his nightmares, flashbacks and panic attacks meant that either he was not suffering from the nightmares or they were not impairing him as much as he said they were;[67]
[67] T82, L20-22
(ii)It was curious that Mr Duspara discussed these symptoms with his solicitor and two medico-legal practitioners, yet not with his treating general practitioner, Dr Hamidi,[68] with whom he has the longest relationship.
[68] T81, L26-31; T82, L1-7
(iii)Mr Duspara’s account of nightmares had come on late in the piece;[69]
[69]T81, L26-27
(iv)A failure to provide a full history of his pre-existing physical conditions in his affidavit evidence;
(v)Callosities with ingrained dirt on his right hand;
(vi)Inconsistencies in his histories to medical experts;
(vii)A difference in his explanation about why he stopped work to medical experts and in his oral evidence (where he said it was because his employer went into liquidation) as compared with his first affidavit (where he said that he ceased as he struggled to perform the work due to his injuries);[70] and
(viii)He had shown an ability to apply for jobs in construction and a willingness to do those jobs.[71]
(b) If he had a condition, it would be assisted by treatment and thus was not permanent.
(c) Dr Horsley had entangled the physical and psychological consequences of the injury, and thus I could not rely on her expert opinion.
[70]T46, L16-22
[71]T67, L13-17
The plaintiff’s contentions
80Counsel for Mr Duspara submitted that he was a credible and reliable witness and thus his evidence, and the history he provided to Dr Damodaran and Dr Horsley, ought to be accepted.
81Counsel for Mr Duspara submitted that:
(a) Mr Duspara was an unsophisticated man who did his best to answer the questions put to him in the Court and to assist the Court.
(b) Mr Duspara’s failure to discuss and seek treatment for his psychological symptoms were consistent with a man who did not like talking about his symptoms, taking medication or seeing doctors.[72]
(c) The omissions made with respect to the medical history in his affidavits were of no consequence, given that this proceeding did not require a Petkovski v Galleti[73] analysis to be performed.
(d) Nothing should be drawn from the presence of the calluses, as he has engaged in manual labour for most of his life.
(e) Dr Damodaran’s diagnosis is uncontested and ought to be accepted.
(f) Mr Duspara is unfit for work on construction sites and as a forklift driver because of his psychological injury based on the expert opinions of Dr Damodaran and Dr Horsley. He had applied for over 300 positions in the construction industry despite being unfit for them as he did not know what else to do.[74]
(g) Taking his residual capacity for suitable employment into account, he has a 40 per cent or more permanent loss of earning capacity.
[72]T86, L12-13, 25-30
[73]Petkovski v Galletti [1994] 1 VR 436
[74]T89, L1-8, 19-24
Consideration of Mr Duspara’s credit and reliability
82Mr Duspara’s case largely turns on whether he is accepted as a credible and reliable witness, particularly because the history of symptoms and injury provided to the medico-legal experts, Dr Damodaran and Dr Horsley, are critical to their opinions and findings, and thus to my analysis and findings in his matter.[75]
[75]Rowe v Transport Accident Commission (2017) 83 MVR 195, [89]; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 at paragraph [60]
83The main issue to be addressed with respect to credit was whether I accepted his account of nightmares, flashbacks and panic attacks.
84While I found Mr Duspara’s evidence at times vague and brief, having had the opportunity to observe Mr Duspara in the witness box, I found that he was a simple and straightforward person who did his best to answer the questions he was asked.[76] He answered questions in an uncomplicated way and he did his best to assist the Court. At times, he appeared as if he did not comprehend questions asked of him but still tried to answer as best he could. An example of this was when he was asked whether he had seen a psychiatrist for treatment.[77]
[76]This was also reflected in the reports of Dr Moaveni at PACB 187, where he notes that “Mr Duspara was a clear and straightforward historian” and Dr Horsley at PACB 218, where she notes that “Mr Duspara presented in a straightforward manner”.
[77] T43, L15-30
85I found his evidence about the content and occurrence of the nightmares to be consistent and reliable. His evidence about his nightmares and sleep disturbance was supported by the evidence provided by his wife, Ms Duspara. [78] He provided the same history to Dr Damodaran and Dr Horsley. His evidence about the nightmares occurring one to two times a week varied with Dr Horsley’s history of three times a week. However, he was consistent in saying that they happen weekly, and I accept that it is likely they occur more than once and up to three times a week on this evidence.
[78]See paragraphs 34 to 36 of this judgment.
86I found the fact Mr Duspara has not discussed his symptoms with Dr Hamidi was explainable because it is consistent with a man who does not like talking about his symptoms with medical practitioners,[79] nor seeking treatment for them.[80] I therefore find this does not impugn his credit and reliability with respect to the occurrence of the nightmares, flashbacks and panic attacks.
[79]T51, L2-3, 14-15
[80]T51, L3, 4-6; T86, L25-26
87I have considered both the absence of history of Mr Duspara’s psychological symptoms to Mr Moaveni, and his history that he did not have any sleep disturbance. While inconsistent with his affidavit and oral evidence, I found that both the omission and the answer was understood in the context of both an examination regarding his hand and Mr Duspara being a man who does not like talking about his symptoms to doctors.
88I found Mr Duspara’s evidence regarding flashbacks and panic attacks credible. As outlined above, when describing the panic attacks in oral evidence he pulled on his collar several times and told the Court that he gets a ‘heat underneath’ and that he cannot breathe properly.[81] His description of the occurrence of the flashbacks was credible and consistent. He did not embellish the symptoms or their occurrence. His evidence was that they occurred when he went past construction sites. He provided the same history to Dr Damodaran[82] and Dr Horsley.[83]
[81]T60, L1-9
[82]T60, L7
[83]T60, L8-9
89With respect to the other matters raised by the defendant, I accept that Mr Duspara either provided credible explanations for them (as was the case with the callosities) or the inconsistency or omission was of no consequence.
90I therefore find that Mr Duspara’s credibility and reliability were not impugned by the evidence.
Analysis and Findings
91Based on my findings about credit and reliability, it follows that I find that the history Mr Duspara provided to Dr Damodaran and Dr Horsley was reliable.
92It also follows that I make the following findings of fact based on Mr Duspara’s evidence, Ms Duspara’s evidence and the histories provided to Dr Damodaran and Dr Horsley:
(a) Mr Duspara suffers from nightmares, flashbacks and panic attacks arising from his injury.
(b) The panic attacks occur when he goes past construction sites.
(c) He suffers from nightmares and flashbacks about the incident up to three times a week.
(d) He has not sought treatment for his symptoms as he does not like to talk about them, does not like seeing doctors and does not want to take medication. He does not believe that treatment will improve his symptoms.
(e) He has intrusive memories, certain avoidance-type symptoms, and hypervigilance. He startles easily. He suffers from traumatisation.
(f) He has a level of avoidance with respect to social activities.
(g) He is concerned about going to a certain construction site.
(h) He is not comfortable talking about the accident with his friends.
(i) With respect to recreational activities:
(i)He is anxious about re-injuring himself.
(ii)There is a level of avoidance.
(iii)The associated avoidance symptoms impact his ability to play social soccer and other recreational interests.
(j) He had, and still has, an image of himself as the breadwinner for his family.[84] The loss of this role has had a detrimental mental health effect on him.
(k) He felt mentally lost in the yard when he returned to work on light duties.
(l) He continues to apply for jobs in construction as he does not know what else to do.[85] He has lost his confidence.[86]
[84] For example, his answers to the question of what he was thinking about when he applied for jobs in
construction at T60, L17-20: “I haven’t thought about the panic attacks at all. I haven’t thought about anything. The only thing that was in my mind was providing and paying – make sure my family’s got something to eat.”
[85]T62, L1-8; T89, L14-24
[86] Exhibit P2, PACB 180; Exhibit P6, PACB 174 at paragraph [16]
93Given that Dr Damodaran’s expert and uncontradicted opinion was based on a reliable history and his examination, it follows that I accept Dr Damodaran’s opinion on the diagnosis of injury and permanence.
94For these reasons, I make the following findings:
(a) Mr Duspara has an adjustment disorder with mixed anxiety and depressed mood with features of traumatisation arising from the incident of 12 June 2019 (“the psychological injury”).
(b) The incapacity arising from the psychological injury is permanent.
Is the injury serious by reference to economic loss consequences?
95It was agreed between the parties that Mr Duspara’s without injury earnings were $2,862 per week, and that 60 per cent of that was $1,635.69 per week (although I note that 60 per cent of $2,862 is $1,717.20 per week).
96Mr Duspara was referred to Recovre for the purpose of undertaking a Vocational Assessment report on 20 March 2024.
97Recovre did not obtain a history of the nightmares, panic attacks and flashbacks, or any other mental health symptoms when they saw Mr Duspara. They did not have Dr Damodaran’s report or any other material from psychiatric or psychological experts when they formed their opinion. Therefore, I am unable to rely upon their opinion for the purpose of determining suitable employment options for Mr Duspara based on his psychological injury.
98I am unable to rely on Dr Slesenger’s opinion for the same reason.
99Dr Horsley’s evidence has been outlined above. She had a copy of Dr Damodaran’s report advising of the diagnosis of psychological injury in her possession at the time of writing her report and forming her opinion. She has appropriately deferred to her psychiatrist colleagues for expert opinion on the diagnosis.[87] Based on her expertise as an occupational physician she concluded that given Mr Duspara’s history of panic attacks, none of the positions identified outlined in the Job Seeking Services Report of 23 December 2019[88] or the Recovre Vocational Assessment[89] were suitable for Mr Duspara as they were mostly positions in the construction industry.
[87] Exhibit P5, PACB 220
[88] Exhibit P5, PACB 220-221
[89] Exhibit P5, PACB 225
100The one exception was the position of forklift driver, which Dr Horsley also concluded was unsuitable.
101Counsel for the defendant submitted that Dr Horsley had entangled the physical and psychological symptoms in her opinion, and that the plaintiff had failed to disentangle them.
102I reject that submission. Dr Horsley said that the reason Mr Duspara could not work on construction sites was due to his panic attacks but deferred to her psychiatrist colleagues for an expert opinion. Dr Damodaran provided that expert opinion, outlining restrictions he was subject to because of his psychological injury.[90] I am thus satisfied that Dr Horsley did not entangle the physical and psychological consequences in her opinion as it was based on the restrictions imposed by reason of the psychological injury.
[90] Exhibit P4, PACB 211-212
103Dr Horsley thought that with significant re-training and therapy, Mr Duspara could undertake administrative or customer facing roles.[91] However, as at the date of the hearing, that re-training and therapy had not occurred. There is no plan for it and it will not occur in the foreseeable future.
[91] Exhibit P5, PACB 221
104Counsel for Mr Duspara submitted that the residual work capacity held by Mr Duspara was for sedentary work only. He submitted, and counsel for the defendant agreed, that a suitable role would be that of a spare parts interpreter, and that the earnings for that role would be in the region of $60,000 - $70,000 per year. Even if he earned $70,000, it was accepted that this was only $1,346 gross per week. This is below the relevant threshold. These earnings would mean that Mr Duspara would establish that he had a 40 per cent or more loss of earning capacity.
105Taking the opinions of both Dr Damodaran and Dr Horsley in their respective areas of expertise into account, and given that I must make my decision as at the date of the hearing, I find that because of his psychological injury alone:
(a) Mr Duspara is not fit to return to work in the construction industry or as a forklift driver.[92]
(b) The administrative or customer facing roles positions identified by Dr Horsley do not constitute suitable employment for Mr Duspara based on his education, skills and experience.
(c) Mr Duspara has a permanent loss of earning capacity of 40 per cent or more.
[92] On the evidence, the earnings of a forklift driver fell short of the 40 per cent threshold in any event.
106Counsel for the defendant agreed that if I were to find that Mr Duspara had a 40 per cent or more loss of earnings capacity arising from a paragraph (c) injury, I would not need to separately consider the pain and suffering consequences before granting leave.
Conclusion
107Based on the above findings, I grant leave for Mr Duspara to proceed with a claim for damages for his pecuniary loss and his pain and suffering.
108I will ask the parties to draw up orders to reflect the grant of leave and hear from the parties on the question of costs.
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