Dvoryadkin v VWA
[2024] VCC 1189
•20 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03684
| ANDREY DVORYADKIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2024 | |
DATE OF JUDGMENT: | 20 August 2024 | |
CASE MAY BE CITED AS: | Dvoryadkin v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1189 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the chest and thoracic spine – paragraph (a) - pain and suffering consequences and loss of earning capacity – credibility
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Kovacic v Henley Arch Pty Ltd (2009) 22 VR 21; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Barwon Spinners v Podolak (2005) 14 VR 622; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Ms F Crock | Shine Lawyers |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
Introduction
1Mr Dvoryadkin is a fifty-six year old man. On or about 15 March 2021, during the course of his employment as a labourer with Euro UPVC Windows Pty Ltd (“the employer”), he suffered a physical injury to his chest and thoracic spine.
2Mr Dvoryadkin makes his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his pain and suffering consequences and loss of earning capacity consequences are “at least very considerable” and “more than significant or marked because of his injury.”[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)
3The part of the body said to be impaired for the purposes of paragraph (a) is his thoracic spine with associated organic chronic pain and sensitisation of nerve pathways. Mr Dvoryadkin abandoned reliance on paragraph (c) at the hearing.
4The hearing proceeded in the usual way. Mr Dvoryadkin was the only witness to give oral evidence and be cross-examined. He did so with the assistance of an interpreter. Mr Dvoryadkin swore two affidavits, which were tendered at the hearing. An affidavit of his wife, Ms Victoria Korotets, was also tendered. The parties otherwise tendered various reports from their respective court books.
5I have considered the affidavits, the evidence of Mr Dvoryadkin at the hearing and the evidence of the experts relied upon at the hearing. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.
6Counsel for the defendant conceded that there was a compensable injury to the chest arising from the work incident, but did not otherwise concede injury.
7The issues that needed to be addressed in this case were:
(a) Credit: was Mr Dvoryadkin’s credit impugned or damaged by his evidence?
(b) Injury:
(i)Is there a substantial organic basis for the injury?
(ii)If not, can the physical consequences of the injury be disentangled from the psychological consequences of the injury?
(c) Loss of Earning Capacity: If Mr Dvoryadkin establishes injury, does he have a 40 per cent or more loss of earning capacity?
(d) Range: that is, can the consequences from the injury and impairment be fairly described as being “very considerable”?
8For the reasons set out below, I find that Mr Dvoryadkin is entitled to leave to proceed with a claim for damages for his pain and suffering and pecuniary loss arising from the injury sustained on 15 March 2021.
Brief relevant chronology
9Mr Dvoryadkin was born in the Soviet Union, where he completed the equivalent of Year 12. He migrated to Australia in 2009.[2] He has completed a Certificate III in Commercial Cookery. Over the years, he has worked as a cook or chef, cleaner, bartender, waiter, factory worker, joiner and pattern maker, as well as a labourer.[3] He currently lives in Highett with his wife and two young daughters.
[2]Exhibit P1, Plaintiff’s Amended Court Book (“PACB”) 5 at paragraph [1]
[3]Exhibit P1, PACB 6 at paragraph [6]-[7]
10He also deposed to the following relevant medical history:[4]
(a) He has high blood pressure and high cholesterol, which he manages with medication;
(b) He may have previously experienced anxiety and depression due to life stressors, and he may have required psychological assistance in the past;
(c) He has asthma, which he manages with Seretide and Bretaris, and he believes he may have been diagnosed with chronic obstructive pulmonary disease;
(d) He has osteoporosis, although he only became aware of this after his injury;
(e) In or around 2015, he experienced a myocardial infarction, which was treated with a stent; and
(f) He has previously experienced insomnia.
[4]Exhibit P1, PACB 6 at paragraph [8]
The work incident
11Mr Dvoryadkin commenced employment with the employer on or about 4 March 2021, 11 days prior to the incident.[5]
[5]Exhibit P1, PACB 6 at paragraph [7]
12On or around 15 March 2021, Mr Dvoryadkin was directed to move an unfolded camper trailer with some co-workers. Whilst they were attempting to move the camper trailer, it turned towards him and he became trapped between a brick wall and the camper trailer.[6]
[6]Exhibit P1, PACB 6 at paragraph [9]
13On or around 16 March 2021, he attended the emergency department at Sandringham Hospital with complaints of right side chest pain. He was examined, and a request for x-ray imaging of the chest was made. Mr Dvoryadkin was provided analgesia before being discharged.[7]
[7] Exhibit P3
14His current treatment regime includes:
(a) Consultations with his treating general practitioner, Dr Khanina, which are usually once a month;
(b) Consultations with Dr Hokin, a psychiatrist, which are usually once a month;
(c) Consultations with Dr Goloub, a psychologist, although he struggles to see Dr Goloub consistently due to his lack of availability; and
(d) He attends on Dr Lisner at MediGreen Australia as needed.
15His current medication regime includes:[8]
(a) Escitalopram 20 milligrams, one per day;
(b) Lyrica 25 milligrams, three per day;
(c) Prodeine Extra 500 milligrams/15 milligrams, two to four per day, as needed;
(d) Paracetamol, as needed;
(e) Medicinal cannabis, which involves the use of oil and flowers, which he takes daily; and
(f) Regular home exercises as shown by his physiotherapist.
[8]Exhibit P1, PACB 19 at paragraph [11]
16Mr Dvoryadkin made three attempts to return to work between 12 July and 9 September 2021. However, these attempts were unsuccessful as he felt harassed, bullied and pressured to work beyond his capacity.[9] This formed the basis of a workplace dispute. He last worked on 9 September 2021, and has not found suitable work since.[10]
[9]Exhibit P1, PACB 8 at paragraph [13]
[10]Exhibit P1, PACB 19 at paragraph [12]-[13]
17On 29 March 2021, he had an x-ray of his chest and right ribs.[11]
[11]Exhibit P1, PACB 133
18On 22 October 2021, he had a bone densitometry scan.[12]
[12]Exhibit P1, PACB 132
19On 28 October 2021, he had an MRI of his thoracic spine.[13]
[13]Exhibit P1, PACB 131
20On 9 February 2022, he had a bone scan.[14]
[14]Exhibit P1, PACB 134
Credit
21Counsel for the defendant submitted that Mr Dvoryadkin was an unreliable, and at times, untruthful witness, and thus his accounts of pain, and the reports which relied upon those accounts of pain, could not be accepted.[15]
[15]Transcript (“T”) 100, Lines (“L”) 16-20
22He submitted that Mr Dvoryadkin’s evidence at the hearing of pain emanating from his lower back was inconsistent with his affidavit evidence and the histories provided to the practitioners, particularly Dr Blombery and Dr Vivian, regarding the pain emanating from his thoracic spine.[16]
[16]T100, L22-31
23I reject this submission. The answers he gave at the hearing related to both the mid-back and the lower back. It was not clear whether he was referring to the lower back, as understood by practitioners, or his spine generally.
24I accept that counsel for the defendant tried to clarify with Mr Dvoryadkin that he was asking about the lower back specifically.[17] However, on close review of Mr Dvoryadkin’s answer to that question and considering that answer with the other answers provided on this topic, I am not satisfied that he was making a distinction between his lower spine and his thoracic spine.
[17]T34, L17-19 and 27-31
25Later in cross-examination, Mr Dvoryadkin was asked whether the pain was still in the lower back area, to which he answered yes, but touched the mid-back area on the right-hand lateral side.[18] He was also asked in re-examination to point to the main area where he experienced pain. He again pointed to the middle part of his back on the right side.
[18]T40, L19-24
26I found these visual answers to the questions about the location of his pain to be clear and reliable, particularly in the context of a man with limited English skills and providing his evidence through an interpreter.
27This is also supported by the history of back pain that he provided to Dr Cynthia Chen, Mr Dvoryadkin’s treating neurologist, who recorded that he had pain at the right mid to lower back during the two months prior to his attendance with Dr Chen.[19]
[19]Exhibit P1, PACB 42
28I thus do not find that this evidence has impugned Mr Dvoryadkin’s credit.
29Counsel for the defendant also submitted that his evidence at times was unreliable, and cited the following examples:
(a) That he had worked for “Chefs on the Run” from time to time and stopped when the COVID-19 pandemic started, when the tax documents showed that he worked for them for one day, or possibly two.[20]
(b) That he was x-rayed at the hospital when no such x-ray exists.[21] The records refer to an x-ray request. The certainty with which he gave that evidence was said to be problematic in the context of the other unreliable evidence.
(c) It was unsatisfactory that his first trip to Russia was not disclosed in any of his affidavits, given that he was carrying four months’ worth of luggage on a long-haul flight.[22]
(d) He exaggerated his evidence, such as when he agreed that his pain could be excruciating. It was submitted that this either meant that Mr Dvoryadkin was embellishing his pain or that there was non-organic pain that Mr Dvoryadkin had not disentangled.[23]
[20]T101, L12-19
[21]T101, L20-24
[22]T101, L28-31; T102, L1-4
[23]T102, L16-109
30I reject these submissions because:
(a) The evidence of his prior employment history was readily ascertainable from his taxation documents. While his oral evidence painted a picture of more than a day or two’s work, I am satisfied that this evidence does not impugn his overall credit when taken in context with the rest of his evidence.
(b) It was not in dispute between the parties that an x-ray of his chest was undertaken on 29 March 2021. I accept that his recollection was that it occurred on the same day he attended Sandringham Hospital on 16 March 2021. There was nothing in this answer that impugned his overall reliability as a witness, particularly given that x-rays were referred to at that consultation, the language barrier when he presented at the hospital and the likely lack of a formal interpreter at the time his attendance.
(c) While it would been preferable that his trip to Russia was disclosed in his affidavit material, I accept that he wasn’t trying to hide it. It is referred to by Dr Clayton Thomas. I have also taken notice of the fact that Dr Thomas did not make any adverse comment about the significance of the trip.
(d) I do not accept that his evidence of experiencing excruciating pain was an exaggeration of his symptoms. His account of pain is necessarily subjective, and thus I do not find that anything turns on this submission.
31Counsel for the defendant submitted that Mr Dvoryadkin gave untruthful evidence when he said that all the jobs he was offered by WorkFocus, a workplace rehabilitation provider, involved heavy lifting, requiring a minimum of 20 – 30 kilograms.
32I reject this submission. I understood Mr Dvoryadkin’s evidence to be that he believed the positions WorkFocus suggested to him could involve heavy lifting, and that he had formed this view based on both his training to become a chef and his review of descriptions of work within advertisements for positions.[24] That may or may not have been a reasonable view to form, but I found it was his view. While his answers to these questions were at times confusing and contradictory, I did not find them to be untruthful.
[24]T52, L17-21, 27-29
33Other judicial officers have considered the challenges to obtaining a witness’s evidence via an interpreter. This is particularly so where there have been different interpreters used during medico-legal consultations, legal consultations, appointments with medical treaters, and ultimately, providing evidence at Court.[25] The challenges can be more pronounced when family members have also been used as interpreters, as appears to have been the case for Mr Dvoryadkin at times. In cases such as this, proper consideration of cultural and language barriers is required.[26] It is important to be conscious of these challenges when they arise, and where appropriate, consider the objective evidence tendered at the hearing alongside the evidence as interpreted in order to form a view about the reliability of the evidence.
[25]See for example Kovacic v Henley Arch Pty Ltd (2009) 22 VR 21, [60]
[26]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, [54]
34Where necessary, I have done this in Mr Dvoryadkin’s case as outlined above.
35I had the benefit of observing Mr Dvoryadkin provide evidence in the witness box. I found him to be a straightforward witness who did his best to answer the questions asked. When considering his answers in context, and taken with the other evidence, I found him to be a credible and reliable witness.
The injury
36Counsel for the defendant submitted Mr Dvoryadkin had a resolved soft tissue injury arising from the incident and consequently there was no organic basis for his current injury and impairment.
37Alternatively, counsel submitted that to the extent that there was any organic injury, the physical consequences of the injury could not be disentangled from the psychological consequences, and thus his application should fail.
38Counsel for the defendant relied on Dr Chen, Mr Dvoryadkin’s treating neurologist, in support of their first submission. Dr Chen found that there was no definitive evidence of Chronic Regional Pain Syndrome in the affected area, but “possibly some central sensitisation (by symptoms, but not signs)”.[27] She stated that the physical examination was more suggestive of a musculoskeletal pathology rather than neuropathic, probably exacerbated by anxiety and stress from the workplace dispute.[28]
[27]Exhibit P1, PACB 44
[28] Exhibit P1, PACB 44
39Counsel for the defendant also relied on Dr Rahgozar, an occupational physician, who saw Mr Dvoryadkin at the request of the defendant. His opinion was that there was non-specific pain after a resolved soft tissue injury to the chest wall or thoracic spine. He said that this pain could not be attributed to any pathology arising from the spine, the shoulder girdle or related upper limb, or the pelvic girdle or related lower limb, and as such could not be used to inform any procedures or surgeries in relation to limitations of activities.[29]
[29] Exhibit D1, Defendant’s Court Book (“DCB”) 45
40The opinions of Dr Chen and Dr Rahgozar were at odds with the opinions of Dr Thomas, Dr Blombery Dr Vivian and Dr Horsley.
41Dr Thomas opined that Mr Dvoryadkin sustained a crush injury, and it seemed probable that he sustained a fracture to the right sixth rib due to the bone scan. He believed that he had developed chronic pain involving his right chest wall which represented central sensitisation.[30] This was an organic injury to his spine and chest wall.[31]
[30] Exhibit P1, PCB 47
[31] Exhibit P1, PCB 47
42Dr Blombery said that Mr Dvoryadkin had suffered an aggravation of pre-existing degenerative changes in the thoracic spine complicated by a pain syndrome.[32] He said that Mr Dvoryadkin had sustained a compression injury to the chest, which involved primarily soft tissue injuries. The pain persisted because of the development of a pain syndrome in the affected area with sensitisation of pain nerve pathways. This was an organic disorder of pain nerve pathways.[33]
[32] Exhibit P1, PCB 97
[33] Exhibit P1, PCB 96
43Dr Horsley said that he had mild wedging of the T7 to T9 vertebrae and the development of a chronic pain syndrome.[34]
[34] Exhibit P1, PCB 88
44Dr Vivian said that a major cause of Mr Dvoryadkin’s initial pain was the probable fracture to the right sixth rib due to the bone scan uptake on 9 February 2022.[35] He went on to say that:
“It is not uncommon for crush injuries and even isolated rib fractures to be accompanied by significant associated musculoskeletal injuries. I consider this to be the case here. I consider there is a high probability he has also sustained injury to a structure or structures in the right thoracolumbar region. From a musculoskeletal perspective, this could be a right-sided facet joint, costovertebral joint or costotransverse joint sprain, noting that the costotransverse joints extend as low as T10. These specific conditions cannot be diagnosed using MRI or bone scan, The diagnosis comes from interventional diagnostic techniques such as direct joint injection or medial branch blocks. My experience of investigating these structures using CT diagnostic tests suggests to me that the most likely injury is to one or more of the T6 to T10 costotransverse joints with some local pain sensitisation and possible nerve root injury.
The symptoms and signs also indicate possible nerve injury or that he has nociplastic pain. This could be due to local pain sensitisation secondary to a musculoskeletal condition (see above) or to a frank nerve injury such as to a thoracic peripheral nerve.”[36]
[35] Exhibit D1, DCB 34
[36] Exhibit D1, DCB 35
45Dr Vivian agreed with Dr Thomas but thought there was a high degree of probability of musculoskeletal injury, and that some of the sensitisation was maintained by the suggested musculoskeletal conditions, and not the pre-existing conditions.[37]
[37] Exhibit D1, DCB 36
46Counsel for the defendant submitted that the opinions of Dr Thomas, Dr Blombery and Dr Vivian could not be relied upon because Mr Dvoryadkin’s history of pain and symptoms to them were unreliable.
47Dr Thomas, Dr Blombery and Dr Vivian are all experts, and experienced in assessing pain and pain syndromes. They had the relevant information in their possession and reviewed that prior to providing their opinion. Had any of them thought that there was reason to question the veracity of Mr Dvoryadkin’s history and symptoms, require further investigations to be undertaken,[38] or otherwise qualify their opinion, they would have said so. Thus, even if I had not found Mr Dvoryadkin to be a reliable witness, I would likely have found that I could rely on the opinions of each of these three practitioners. As it transpires, I have found that Mr Dvoryadkin was a reliable witness. Thus, I am satisfied that nothing turns on this submission.
[38] Such as a CT guided injection as referred to in Dr Vivian’s report or the absence of such reference in
Dr Blombery’s report.
48Although differently expressed, there is a consistency in the diagnoses between each of Dr Thomas, Dr Blombery and Dr Vivian. Each of them identified the injury as a ‘crush’ or ‘compression’ injury involving the chest and, in the case of Dr Blombery and Dr Vivian, the thoracic spine. They all identified the development of the chronic pain syndrome with sensitisation. Dr Vivian thought the symptoms and signs could also indicate a nerve injury.
49While Dr Horsley’s expertise lies within the field of occupational medicine, I find that her opinion regarding the organic injury is broadly consistent with Dr Thomas, Dr Blombery and Dr Vivian regarding the location and origin of the organic injury, and thus is supportive of their opinions.
50Dr Chen directed her focus to the MRI. She did not consider or ask for a bone scan. While she raised the prospect of central sensitisation, she seemed to err on the side of a non-organic explanation for this.
51Dr Rahgozar’s opinion regarding the injury being resolved is at odds with the opinions of the other practitioners with respect to resolution of the injury. He also failed to identify the issue of sensitisation or chronic pain syndrome, which the other practitioners did.
52I thus prefer the opinions of Dr Thomas, Dr Vivian and Dr Blombery to those of Dr Rahgozar and Dr Chen on the question of injury.
53With respect to making findings on the injury itself, I will firstly turn to the opinion of each of the three practitioners on the relevance of the MRI findings.
54Neither Dr Thomas nor Dr Vivian relied on the findings from the MRI when forming their view on the diagnosis of the injury. It appears that Dr Blombery did. Either way, Dr Blombery was an outlier in finding that pre-existing changes to the thoracic spine were of any significance to the cause of the Mr Dvoryadkin’s pain. I thus prefer the opinions of Dr Thomas and Dr Vivian on the question of injury to Dr Blombery’s.
55Both Dr Thomas and Dr Vivian identified the probable fracture to the right sixth rib when diagnosing the injury. Dr Vivian went further and discussed the likelihood of injury to a structure or structures in the right thoracolumbar region.
56Given the consistency of diagnosis between the two practitioners, and once again noting their expertise in this area, I prefer the more extensive opinion and diagnosis provided by Dr Vivian in my findings on injury.
57Counsel for the defendant also submitted that Mr Dvoryadkin’s treating general practitioner, Dr Khanina, directed her focus to psychological issues,[39] and that her report was vague and unhelpful. Dr Khanina diagnosed Mr Dvoryadkin as suffering from ongoing chronic musculoskeletal pain.[40] While she referred to Mr Dvoryadkin’s psychological symptoms and treatment, she also referred to the imaging, Mr Dvoryadkin’s physical symptoms, and the treatment he had had for his pain syndrome. I find that her opinion provides support for Mr Dvoryadkin’s history of pain and symptoms (and in turn, support for his credibility) and support for the proposition that there is an organic basis for the injury, albeit that her report lacks the detailed diagnosis and specificity of the reports of Dr Thomas, Dr Blombery and Dr Vivian.
[39]T83, L14-16
[40]Exhibit P1, PACB 56
58I am satisfied that both the initial crush injury or fracture to the right sixth rib and the subsequent pain syndrome arose from the one incident, and thus can form one body function.[41]
[41] Victorian WorkCover Authority v Brassington [2021] VSCA 236, [48]-[52]
59Each of Dr Thomas,[42] Dr Blombery,[43] Dr Vivian[44] and Dr Horsley[45] regarded the consequences of the organic injury as permanent.
[42] Exhibit P1, PACB 47
[43] Exhibit P1, PACB 97
[44] Exhibit D1, DCB 36 (where he agrees with Dr Clayton Thomas)
[45] Exhibit P1, PACB 86
60I therefore make the following findings regarding the injury:
(a) Mr Dvoryadkin sustained an injury to his right sixth rib and one or more of his T6 to T10 costotransverse joints as a result of the workplace injury of 15 March 2021.[46]
(b) The impairments produced in consequence of that physical injury can be isolated and identified to a satisfactory degree.
(c) Those impairments arising in consequence of the physical injury are permanent.[47]
[46] Exhibit D1, DCB 35
[47]Barwon Spinners v Podolak (2005) 14 VR 622, [33]
61Given that there is a substantial organic basis for the injury, it is not necessary to consider the issue of disentanglement.[48]
[48] Meadows v Lichmore Pty Ltd [2013] VSCA 201, [21]-[24]
The impairment consequences
Work capacity
62Counsel for the defendant submitted that if I found for Mr Dvoryadkin on the issue of injury I should nonetheless find that he has a capacity for full-time suitable employment based on the opinions of Dr George Wilson, occupational physician, Dr Hillol Das, consultant psychiatrist, and Ms Joanne McLeod, occupational therapist.
63Counsel for the defendant noted that even if I were to find that Mr Dvoryadkin had a part-time capacity for suitable employment, he would fail to meet the 40 per cent or more loss of earning capacity test.
64Dr Wilson saw Mr Dvoryadkin on 20 October 2021, prior to Mr Dvoryadkin seeing Dr Chen and undertaking an MRI or bone scan, and prior to him seeing and being treated by Dr Thomas. These deficiencies have led me to afford less weight to Dr Wilson’s opinion.
65Dr Das is a psychiatrist. His opinion regarding Mr Dvoryadkin’s work restrictions are based on his diagnosis of an adjustment disorder, which was not the subject of this claim. Thus I have not relied on his findings.
66As referred to previously, the defendant also referred Mr Dvoryadkin to Dr Rahgozar for an opinion. Given that Dr Rahgozar did not grapple with the issue of central sensitisation and found that Mr Dvoryadkin had a resolved soft tissue injury, I have not relied on his opinion in making my findings about work capacity.
67Ms McLeod is an occupational therapist. She provided her opinion without meeting with Mr Dvoryadkin. She prepared her report “on the papers”.[49]
[49]Exhibit D1, DCB 77
68She identified several positions that she believed constituted suitable employment for Mr Dvoryadkin based on this analysis.
69She prepared a table regarding what the various practitioners had opined about Mr Dvoryadkin’s capacity for work.[50] She said that “in summary, medical mostly agrees that he has his [sic] capacity for suitable work”. She then concluded that having considered the available information, including Mr Dvoryadkin’s vocational profile, the medical information, his activities and physical tolerances, she believed Mr Dvoryadkin could transition to suitable employment in the open labour market.[51]
[50] Exhibit D1, DCB 78
[51] Exhibit D1, DCB 80
70Given that Ms McLeod did not provide an explanation about the weight she accorded to the various practitioners’ medical opinions, or indeed whether any weight was accorded, the absence of meeting with Mr Dvoryadkin to hear from him about the positions proposed, and my concerns about whether she has provided an opinion based on having formed a medical view about Mr Dvoryadkin’s restrictions that is beyond her area of expertise, I am unable to rely on her report.
71Mr Dvoryadkin was assisted by WorkFocus at the request of Allianz. They concluded that based on a certificate of capacity issued by Dr Khanina on 8 May 2023, Mr Dvoryadkin may be suitable for the positions of pastry cook, café worker, barista, small product assembler and bartender.[52] They referred to the physical work restrictions that Dr Khanina outlined on that certificate, which included “2 times a week, 4 hours a day – 15 minutes rest time in between”.[53] Therefore, at its highest, it would seem that they were of the view that these positions would constitute suitable employment for eight hours a week.
[52] Exhibit D1, DCB 57
[53] Exhibit D1, DCB 54
72As outlined above, Dr Horsley found that Mr Dvoryadkin had an organic injury to his thoracic spine with a chronic pain syndrome. She provided her opinion regarding the restrictions Mr Dvoryadkin had for work because of his thoracic injury alone.[54] She considered the recent medical material and the opinions contained within regarding the diagnosis of injury and the restrictions for employment. She stated that while he had a ‘theoretical’ capacity for to work 15 – 20 hours a week, she concluded that he had effectively come to the end of his working life once his barriers for employment were considered.[55]
[54] Exhibit P1, PACB 88
[55] Exhibit P1, PACB 111
73This is consistent with the opinion of Dr Blombery.[56]
[56] Exhibit P1, PACB 97 (answer to question 6)
74Dr Thomas’s view is at odds with that of Dr Blombery and Dr Horsely. He was of the view that Mr Dvoryadkin was able to work 30 hours a week in suitable employment.
75I have preferred the opinion of Dr Horsley on this question. This is because of her access to all the medical reports, the consistency of her opinion with that of Dr Blombery, the fact that both of their opinions are closely aligned to that of Dr Khanina and the fact that Dr Horsley’s opinion in the most recent. Given that I must make my findings as at the date of the hearing, I have preferred the opinion of Dr Horsely to the other opinions with respect to the restrictions for employment.
76I therefore find that Mr Dvoryadkin has no capacity for suitable employment because of his age, education, limited verbal English skills, training and experience, and the restrictions he has arising from his organic injury, those being:
(a) Avoidance of over reaching.
(b) Avoidance of pushing and pulling.
(c) Avoidance of above shoulder activities, restricted to working between shoulder and waist height.
(d) Avoidance of lifting items greater than eight to ten kilograms, except on an occasional basis.
(e) Avoidance of lifting items up to eight kilograms on a repetitive basis.
(f) Needing to vary his posture between sitting and standing.
Pain consequences
77Mr Dvoryadkin deposed to experiencing constant pain in his lower back, which increases with activity and usually increases throughout the day.[57] This pain travels up the right side of his back to his ribs and sometimes into his right shoulder.[58] He also experiences ongoing pain in his chest and ribs.
[57]Exhibit P1, PACB 9 at paragraph [14]
[58]Exhibit P1, PACB 9 at paragraph [14]
78This was consistent with his second affidavit where he noted that he found it difficult to perform most physical tasks for a long period of time, as this increases his pain. He is now careful about the tasks he undertakes to limit the flare ups of pain he experiences.[59]
[59]Exhibit P1, PACB 20 at paragraph [23] and 21 at paragraph [24]
79His current medication and treatment regime is outlined at paragraphs 14 and 15 of this judgment.
80I accept Mr Dvoryadkin’s evidence regarding the pain consequences.
Functional consequences
81In his affidavits, Mr Dvoryadkin deposed that he is limited by his injury in performing household tasks, such as cooking, grocery shopping and hanging the washing.[60] He tries to limit the amount of time he spends doing these tasks and is more reliant on Ms Korotets doing these tasks, as he finds them difficult.[61] He also struggles with other tasks, such as vacuuming and doing the dishes. At the hearing he said that he tries to do as much as he can.[62]
[60]Exhibit P1, PACB 9-10 at paragraph [15]
[61]Exhibit P1, PACB 10 at paragraph [15]
[62]T49, L2
82These limits were supported by Ms Korotets’ affidavit.[63]
[63]Exhibit P1, PACB 15 at paragraphs [37]-[39]
83He said that he struggles to interact freely with his children due to pain, such as lifting his youngest child and his ability to play with his children.[64]
[64]Exhibit P1, PACB 10 at paragraph [15]
84He deposed to having difficulties with reaching above shoulder height, bending, twisting, squatting and kneeling, as these actions cause increased pain.[65]
[65]Exhibit P1, PACB 10 at paragraph [15]
85I accept his evidence regarding his functional consequences.
Sitting
86He deposed to being restricted in his ability to sit for long periods of time without proper back support.[66]
[66]Exhibit P1, PACB 10 at paragraph [15]
87At the hearing he said that he has flown to Russia twice since the injury, the first time to care for his sick mother, and the second time to meet his grandson and pay respects to the dead by visiting their graves.[67] He stated that it took him two weeks to return to his normal condition after the flight.[68]
[67]T44, L12-13, T45, L10-12, T46, L30-31
[68]T53, L22-24
88I accept his evidence regarding his sitting restrictions.
Sleep
89He deposed to often waking up in the night due to the pain he experiences, which meant that he was frequently tired during the day.[69]
[69]Exhibit P1, PACB 10 at paragraph [15]
90He deposed to having experienced insomnia as part of his relevant medical history and confirmed during the hearing that he had pre-existing sleep problems before the accident.[70]
[70]T48, L20-25
91Counsel for the defendant submitted that Mr Dvoryadkin and his wife had deposed to not sleeping in the same bed since the birth of his youngest daughter in 2018.[71] Counsel for the plaintiff conceded that no weight should be accorded to the issues regarding sleep with respect to the consequences arising from the organic injury.[72]
[71]T48, L26-30; Exhibit P1, PACB 27 at paragraph 5; Exhibit P1, PACB 14 at paragraph [33]
[72] T147, L22-24
92In consequence of that evidence, I find the challenges Mr Dvoryadkin has with sleep arising from his injury cannot be disentangled from the insomnia and sleep problems he suffered from prior to the injury.
Driving
93Mr Dvoryadkin can comfortably drive for around 30 to 40 minutes. He said that when he and his family are driving for longer trips, they will stop the car every 40 minutes to an hour because of the increase in Mr Dvoryadkin’s back pain.[73]
[73]T70, L24
94He uses a support cushion when driving to provide additional support.[74]
[74]Exhibit P1, PACB 22 at paragraph [25]
95I accept his evidence regarding driving.
Socialising
96He deposed in his second affidavit that after the accident, he found it difficult to socialise due to the pain and that he no longer enjoys going out.[75]
[75]Exhibit P1, PACB 21 at paragraph [25]
97Ms Korotets also deposed in her affidavit that Mr Dvoryadkin was less social following the injury.[76] Her evidence was uncontested at the hearing.
[76]Exhibit P1, PACB 15 at paragraph [44]
98I accept his evidence regarding socialising.
Camping
99Mr Dvoryadkin said that camping was one of his hobbies before the injury, but that he rarely does it now. He finds it difficult to get to a camping location, set up and sleep with his injury.[77] When they do go, Ms Korotets does most of the unloading and packing up.[78]
[77]Exhibit P1, PACB 9 at paragraph [15]
[78]Exhibit P1, PACB 21 at paragraph [25]; Exhibit P1, PACB 13 at paragraph [12]
100He stated during cross-examination that he and his family go camping, but not as frequently as they used to, and that he will help Ms Korotets to unload the car but she does most of the unloading and packing up.[79]
[79]T47, L27-29; T48, L2-4
101During re-examination, he stated that there has been a noticeable difference in how frequently he goes camping with his family since the accident, as they had only gone camping once last summer.[80]
[80]T70, L27-31
102I accept his evidence regarding camping.
Metal detecting
103In his affidavits, Mr Dvoryadkin deposed to previously enjoying metal detecting as a hobby, which he used to do very regularly prior to the injury. However, since the injury, he found it difficult to continue this hobby due to his pain, and no longer found it enjoyable as a result.[81]
[81]Exhibit P1, PACB 9 at paragraph 15; PACB 21 at paragraph [25]
104He was not challenged on this evidence during the hearing.
105I accept his evidence regarding metal detecting.
Retained capacity
106Mr Dvoryadkin retains the capacity to do the following:
(a) He is still able to drive, albeit he takes rest breaks if he drives longer than 40 minutes to an hour.
(b) He can travel on long flights.
(c) He can do home duties and assist Ms Korotets with looking after their daughters and performing the school pickups and drop-offs.
(d) He can interact with his children, albeit with restrictions.
(e) He can sit for shorter periods of time.
(f) He can go camping, albeit he gave evidence that he does not go as frequently as he used to.
(g) His social life is affected, although he can still go out and meet friends if he wishes to do so.
(h) He can still go metal detecting, albeit that he is in pain and no longer finds it enjoyable.
Assessment of his current earning capacity
107The parties agreed that Mr Dvoryadkin’s without injury earnings were $800 per week, and that 60 per cent of that figure was $480 per week.
108Given my finding that Mr Dvoryadkin has no capacity for suitable employment, I find that he has established that he has a 40 per cent or more loss of earning capacity.
109The parties agreed that in the event I were to make that finding, Mr Dvoryadkin would be entitled to a grant of leave to proceed with a claim for damages based on his pecuniary loss and pain and suffering.
Conclusion
110I find that Mr Dvoryadkin is entitled to leave to proceed with a claim for damages based on his pecuniary loss and pain and suffering.
111I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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