Garcia v Alstom Power Ltd
[2011] VCC 1474
•22 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01787
| JESUS MANUEL GARCIA | Plaintiff |
| v | |
| ALSTOM POWER LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 5 and 6 September 2011 |
| DATE OF JUDGMENT: | 22 September 2011 |
| CASE MAY BE CITED AS: | Garcia v Alstom Power Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1474 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric impairment following myocardial infarction – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Slater & Gordon |
| Mr J Goldberg | ||
| For the Defendants | Mr P Elliott QC with | Minter Ellison |
| Mr J Batten | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 20 July 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff initially brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. The body function relied upon in this case is the cardiac system. However during the hearing this application was withdrawn.
4 Ultimately the application proceeded pursuant to clause (c), with the plaintiff claiming a permanent severe behavioural disturbance or disorder as a result of the heart attack.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(v) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(vi) Section 38(g) requires questions of rehabilitation and retraining to be considered in determining whether the forty per cent loss has been established;
(vii) Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(viii) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(ix) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(x) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(xi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(xii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is presently aged fifty eight, having been born on 25 March 1953 in Spain. In 1963, he came to Australia with his family. He attended school until the age of seventeen and thereafter completed a five-year apprenticeship as an electrician.
7 Apart from that trade qualification, the plaintiff has not undertaken any further formal education or training and his reading and writing skills are generally poor.
8 The plaintiff has always worked as an electrician. He came to the Latrobe Valley in 1981, where he has worked mainly in the power industry. At times prior to 2005, he worked for the first defendant. He had always enjoyed good health.
9 In cross examination, the plaintiff denied having blood pressure problems before the said date. He could not recall seeing a Dr Fisher in October 2003, and being told his blood pressure, which was then 150/90, needed to be reviewed. In any event, the plaintiff did not think that reading was that high.
10 The plaintiff underwent an extensive medical examination in Churchill in 2004, before getting a job at a gas plant. He was cleared and there was no sign of anything.
11 In re-examination, the plaintiff was taken to a medical assessment in 2004 for the Bass Gas Project. At that time, the plaintiff’s blood pressure was 120/60. He confirmed he filled out an employment questionnaire on 9 June 2004 and underwent a medical and physiotherapy assessment the following day.
12 The plaintiff recommenced employment with the first defendant on 26 April 2005. His employment was casual and could be terminated at any time.
13 The plaintiff’s duties involved a wide variety of electrical installation and repair, which included running cable, fitting of cable connections, installing cable trays and doing general repair work (“the duties”).
14 The plaintiff deposed that in the financial years prior to the said date, his income was as follows:
2002/2003 $54,545 2003/2004 $84,783 2004/2005 $52,395
15 In closing submissions, counsel for the plaintiff did not rely on these figures. The parties however agreed that the without injury earnings figure was $101,302.
16 On or about the said date, the plaintiff suffered a heart attack whilst at work at the Hazelwood Power Station.
17 At the time, the plaintiff was engaged in duties involving running four core cables from a control tower to a boiler. The cable was very heavy and fed off a drum located at floor level. The plaintiff was working from a cherry picker, pulling the cable, feeding it through the pipe work.
18 The plaintiff spent the morning pulling fifteen metre lengths of cable, pulling, dragging and positioning the cable up to twelve metres in distance. He completed a number of cable runs and late in the morning, just prior to lunchtime, he experienced discomfort and chest pain which continued and progressively got worse (“the heart attack”).
19 Following the heart attack, the plaintiff continued working believing the pain would go away and he continued to feel unwell. He told his supervisor and was sent to first aid, where he was advised to rest and was provided with oxygen.
20 An ambulance was called and the plaintiff was taken to Latrobe Regional Hospital (“LRH”), where he was admitted for further investigation and treatment.
21 The next day the plaintiff was transferred to St Vincent’s Hospital in Melbourne (“St Vincent’s”), where he remained an in patient for about five days and had investigations including an angiogram.
22 The plaintiff was discharged from St Vincent’s on 26 July 2005 and placed under the care of his local general practitioner, Dr O’Leary.
23 The plaintiff remained unfit for work and was provided with WorkCover certificates by Dr O’Leary and was referred by him to a cardiologist, Dr Ogilvy, in Traralgon.
24 Dr Ogilvy managed and supervised the plaintiff’s treatment and rehabilitation over a number of months. In September 2005, the plaintiff attempted a return to work with the first defendant, performing modified light work.
25 On his return to work, the plaintiff experienced recurring difficulties with episodes of discomfort, pain and shortness of breath. Most of these symptoms were fairly mild and he was able to cope with work and he was determined to overcome his condition and continue working. He believed he was a valued employee with a good work record and had much to offer.
26 However, it became increasingly difficult for the plaintiff to remain at work and do modified duties. Also, from time to time, he was the subject of unpleasant, unwarranted and unprovoked comments and, at times, abuse from co-workers who thought he was not pulling his weight. These episodes upset the plaintiff very much, causing him to stress and to become anxious, nervous and worried.
27 On a number of occasions, the first defendant was unable to give the plaintiff work, and sent him home. This upset the plaintiff very much, as he wanted to remain at work and be a useful co-worker. He did all that was asked of him, despite the restrictions placed on his capacity for work and he was keen to continue working with the first defendant.
28 During early 2006, there were further similar episodes with fellow workers. Their remarks were hurtful and embarrassing and seemed to suggest to the plaintiff he was bludging and not pulling his weight.
29 However, the plaintiff continued working. At times, the work given to him was very difficult and he struggled to complete it because it caused discomfort and pain and he feared he would have a further heart attack.
30 His duties then included using stepladders, lifting and carrying materials over long distances, working for long periods alone in isolated locations. Other tasks included oil testing, alone without any or any adequate means of communication.
31 In mid 2006, the plaintiff was transferred to the Power Station Workshop, where he was told there was work available for him on restricted hours three days a week for three hours a day. The plaintiff attended work as directed, but on numerous occasions, he was given little, if anything, to do and on many occasions he was sent home.
32 During the latter half of 2006, there were many disputes over the hours and days the plaintiff was to work and the type of work he was capable of doing. His new general practitioner, Dr Norwood, at all times tried to comply with the return to work plans given to the plaintiff.
33 The plaintiff stopped seeing Dr O’Leary in March 2006 because he was not suitable for him and was not treating him properly.
34 In about October 2006, the plaintiff underwent further review at St Vincent’s, where his medication and treatment was under regular review.
35 The plaintiff was becoming increasingly frustrated, anxious and upset about the difficulties with the first defendant. He believed the first defendant could not or did not want to accept that his injuries were covered by WorkCover. The resentment and annoyance amongst co workers continued. Eventually the plaintiff’s employment was terminated in December 2006.
36 In cross-examination, the plaintiff agreed that he was encouraged by his psychologist, Ms Tabary-Collins, to return to work after the heart attack. He approached his return to work with cheerfulness, fully expecting to be rehabilitated enough to return to normal work. However, there was friction on his return to work.
37 The plaintiff confirmed he was required to do the tasks described in Mr Thompson’s statement but he could not do some of them. The work was heavy and made his condition worse. He could not hold heavy welders and the circular saw and he had difficulty manoeuvring machinery when testing it. He did some work connecting cables into the switchboard from a standing position and had to use an electric drill and hand tools. He was onsite most of the time, not in the workshop.
38 The plaintiff agreed unfortunately the situation was that there was some falling out with others at work on his return. There was some hostility towards him but he said that he had problems with the work situation itself. He agreed he thought he was humiliated on occasion. He wanted to work and only went home if there was no work for him to do.
39 The plaintiff agreed he felt he was being victimised but also said he was not being given the right work and was in fact given heavy work. He would have quite happily stayed working for the first defendant if he was provided with suitable work.
40 The plaintiff only ever worked three hours a day, three days a week on his return to work after the heart attack. He complained that sometimes his work was heavy and he was ultimately dismissed from his job.
41 It was never suggested to the plaintiff by the first defendant that he could work a full week or increase his hours to twenty per week. Hardly ever was he provided with work when he attended the workplace.
42 The plaintiff was never offered any office work. The first defendant was a big company worldwide with an office in the Latrobe Valley employing about ten people. When the plaintiff returned to work, there were twelve people working in Mr Thompson’s office
43 The plaintiff was not given an opportunity by the first defendant. He would probably have kept working if he had been treated properly and given the right sort of work.
44 Since leaving work with the first defendant, the plaintiff’s anxiety, depression and chest pain have worsened. Even though the first defendant terminated his employment, they still kept doing things to him even when he was fired.
45 In cross examination, the plaintiff explained that when his employment was terminated, he did not look for lighter work because he would not have been able to do it. He could not do his job, even part time, and another company was not going to give him light duties. He denied he was capable of lighter physical-type work. He could not do anything physical.
46 The plaintiff deposed he believed his efforts to overcome his injuries, to do his rehabilitation and return to work, were frustrated by the situation at work. Further, he believed his rehabilitation and psychological and emotional health were markedly affected, not only by the injuries, but by the recurrent, repeated episodes he experienced on his return to work.
Ongoing Problems
47 The plaintiff deposed in 2009 that he continued to suffer recurring symptoms and recurring emotional and nervous symptoms, the severity of which fluctuated markedly. He then continued to experience chest pain, which occurred readily when he attempted physical tasks and activities, such as mowing the lawn or digging the garden, causing him to become short of breath. He had difficulty climbing stairs which caused shortness of breath and chest pains.
48 At that time, generally those symptoms were mild and if the plaintiff paced himself, he could manage the activities and do them without too much trouble. He then tried to remain as active as possible, but heavy physical demanding work was beyond him.
49 The plaintiff then believed he was unable to return to work with the first defendant and that he was no longer fit for physical, manual labouring work, which he had done all his life. He was unable to think of a job he could do physically.
50 The plaintiff was then worried about his future and his ability to provide for his family. He felt frustrated and bored at home and unable to get back to work. Things seemed impossible, not appearing to get any better for him.
51 The plaintiff then believed his emotional and psychological health suffered greatly as a result of his difficulties and attempts to get back to work. He experienced recurring episodes of anger, frustration, distress and upset at the way his injuries and ability to work were viewed by the first defendant, his supervisors and co workers. He was then left feeling uncertain, doubtful and anxious about his job security and his future employment prospects.
52 Before the heart attack, the plaintiff was an active person and most of his activities centred on his wife and daughter.
53 The plaintiff enjoyed outings and doing things around the house, such as gardening, maintenance and domestic tasks. Whilst he still engaged in these activities to a limited extent in 2009, the plaintiff was withdrawn, cautious and fearful of provoking further symptoms and experiencing further ill health. He remained very frustrated, angry and upset about the manner in which he had been treated and the difficulties he experienced with his injuries and his attempts to return to work.
54 The plaintiff’s sleep was then interrupted with insomnia and occasional nightmares, ruminating about the injury and his difficulties.
55 The plaintiff’s family and personal relationships had been affected and he was more withdrawn and prone to outbursts of frustration, irritability and anger. He was not as considerate and tolerant of his wife and daughter, and that had placed much tension between them and caused him distress, worry and upset. Physical relations with his wife had also been affected.
Current Condition
56 The plaintiff continues to experience persistent ongoing symptoms, including shortness of breath and episodes of chest pain, and he tires easily. Activities requiring physical effort are difficult for him.
57 In cross examination, the plaintiff described how he gets chest pain when sitting, not doing anything and even when driving a car. He initially agreed the pain was on his right side of his chest and then said it is near the middle of his chest and finally stated it was on the left hand side, pointing to the left near the middle.
58 The plaintiff deposed that he is no longer capable of working in his trade. He can no longer work in his old job or in the power industry generally. He ceased work because he was no longer capable of doing the work and also he had become increasingly anxious, nervous and depressed, when persisting with his work.
59 The plaintiff deposed that before the heart attack, he was fit and capable of doing all work required. After his return to work thereafter, he felt he was being carried by co-workers and not pulling his weight.
60 The plaintiff remains anxious, nervous and depressed and is unable to work and be active like he was before the heart attack, when he enjoyed gardening and maintained a vegetable patch. He went camping and fishing with friends at Licola, usually being away two or three nights; but he is no longer capable of these activities.
61 In cross examination, the plaintiff described his daily routine. Sometimes he just sits around. He did not think he could do light gardening but he could do some small things like picking up weeds. He does not dig up the garden.
62 The plaintiff does puzzles or reads the newspaper. His mother visits him everyday. His wife works different shifts and she does the housework and the gardening. She painted their Traralgon house. If it was not too strenuous, the plaintiff could probably do some painting.
63 When it was suggested to the plaintiff that he led a relatively normal life, the plaintiff replied: “To me, I’ve got no life.”
64 The plaintiff now prefers to be on his own and he does not enjoy company. He does not socialise or go out with his wife, family or friends like he used to in the past. He prefers to keep to himself.
65 The plaintiff remains irritable, short tempered and difficult to get along with and his relationship with his family remains under great strain. He knows it is his fault but he struggles to control his temper and is easily irritated. He just blows up and was never like that before the heart attack.
66 The plaintiff continues to be unable to sleep properly and get a good night’s rest. He wakes up in the morning feeling tired and lethargic and does not look forward to the day. It upsets him that he cannot work like he did in the past.
67 The plaintiff continues to drive, doing so locally without too many problems. On longer trips he takes breaks because of fatigue and difficulty concentrating and he is very apprehensive as a driver.
68 The plaintiff has a 2009 Hyundai. His wife has a Nissan X-Trail. He denied having told Dr Hammond that he did not drive because he was scared of having a turn driving.
69 The plaintiff walks as much as he can but he gets short of breath. He walks his daughter to school and she catches the bus home. He does some cooking at home but he cannot lift heavy pots.
Current Treatment
70 In his most recent affidavit sworn in April 2011, the plaintiff confirmed he is still in receipt of weekly payments. He remains under the care of Dr Norwood.
71 The plaintiff regularly takes medication for high blood pressure and cholesterol and he takes an anti-depressant at night. He also takes angina tablets when he has chest pains and had never been told not to take them. After he has taken an angina tablet, the pain settles after ten to twenty minutes. The plaintiff denied he told Dr Hammond that relief from these tablets was not in a persistent or predictable fashion.
72 The plaintiff gets very sick and has side-effects from his medication. He gets giddiness.
73 The plaintiff has been regularly seeing Ms Tabary-Collins, psychologist, for five and a half years and he agreed she is making him feel better. Recently funding for this treatment was cut off and the plaintiff now claims the costs of treatment through Medicare. The plaintiff would pay for the treatment himself if he had to.
74 The plaintiff has not seen any heart specialists for some time. He underwent rehabilitation at LRH but had trouble doing the exercises because of chest pain. He last saw Mr Ogilvy in March 2006 and he recommended the plaintiff stopped smoking. He also saw a specialist, Dr Gnanaharan at LRH in 2006.
Return to Work
75 In examination in chief, the plaintiff was taken though the requirements for the position of Stores Technical Officer – Electrical, which the defendant suggested was suitable for him.
76 The plaintiff denied he had any of the requisite skills or training for that position having only ever worked in large installations for forty years. He had never done office work and he had no people skills or relevant training or experience required for that job. The plaintiff was educated to Year 10 only and had never worked in stores or in a shop.
77 In cross examination, the plaintiff confirmed he could not this advertised job. He did not know in the future if he could do the job with retraining but it was forty years since he had been to school and he “did not think his brain was working the same as when he was young. He was not that smart.”
78 The plaintiff does not have any ability to use a computer or do a clerical job. He does not have a computer at home.
79 The plaintiff might have told Dr Hammond in March 2011 that he would be happy to undertake a sedentary occupation if he got training, but at the moment he is not looking for a job because he could not do it. If he were trained and did the schooling, he probably would be willing to undertake some computer retraining, if the training was paid for by someone else, but he would not pay for it himself.
80 The plaintiff’s English skills are not perfect and he has difficulty reading some words and does not write “fully one hundred percent”. He could not remember telling Dr Stern in 2006 he could do paperwork by which the plaintiff meant photocopying.
81 The plaintiff could not work as a taxi driver because of his problem with dizziness, which comes on an hour or two after he takes his tablets. He has told his doctor about the effects of his tablets but his medication has not been changed.
82 When asked about looking for work after the case was finished, the plaintiff said he did not think he could do any work – What could he look for if he did not know what he was looking for?
83 The plaintiff has not tried to get a job. He denied that he had closed his mind to working and said because of his condition there are not many things he can do at all. He thought he was not feeling motivated to get a job at the moment.
84 Ms Tabary-Collins probably told the plaintiff that he could contemplate some form of part time employment in November last year but not in those words. If the plaintiff was trying he could probably do it.
85 Prior to being shown a number of videos, the plaintiff confirmed he told a number of doctors he had not smoked since September 2005 and had been given advice to that effect.
Video Surveillance
86 There were three short videos shown totalling about half an hour where the plaintiff was shown in the local area at supermarkets and shopping centres and also driving his daughter to and from school.
87 On 7 April 2010 at 10.18 am, the plaintiff was shown having a cigarette at the Hazelwood Shopping Centre in Churchill. The following day, the plaintiff and his wife were shown shopping in Morwell. The plaintiff put some shopping in the back of his vehicle. He was shown smoking a cigarette.
88 The plaintiff was also shown at Bunnings. He explained he went there to purchase plants and sometimes other things for the house like paint, which he had used to paint the interior of the house at Traralgon.
89 The plaintiff agreed he returned the shopping trolley to the bay and stood at the entrance to the shopping centre smoking a cigarette which he finished at 11.30 am. He was then shown at an electrical shop where he bought a little portable radio.
90 On 25 August 2011, the plaintiff was at the cigarette counter at the supermarket. He ultimately agreed he had purchased a carton of cigarettes.
91 The plaintiff confirmed he had given up smoking. When he gets the urge he has maybe three, four, or at most five cigarettes a day and to him that is giving up compared to what he used to smoke when he smoked twenty per day. He does not purchase cartons of cigarettes, he buys a packet every now and again. He told doctors he had stopped smoking because he was smoking so little.
92 When it was suggested to the plaintiff that he did not look unhappy in the video he said, “What do you expect me to show the shopkeepers how I feel? If I go to a shop I have to act normal”. The plaintiff is not going to go up to shopkeeper and say he is terribly upset and he is anxious and nervous. He does smoke because he just gets too nervous and he does not know what to do. He felt as if his blood pressure was 250 when he gave his evidence.
93 The plaintiff denied being told by any doctor that his heart attack was not serious.
94 The plaintiff could not remember being told by Dr Hammond that he had a five per cent chance over a five year period of having a heart attack. His own doctor, Dr Norwood, had told him he was a “walking time bomb” on a number of occasions, because when he took his blood pressure it was always very high, and to Dr Norwood, the plaintiff’s risk of heart attack was pretty high.
95 The plaintiff thought he had a high risk of having a heart attack, no matter what he was told by doctors. Sometimes he thought he might not wake up in the morning. He knew he got chest pains and dizziness, whether it was from the heart or something else, he did not know. Dr Hammond did not tell him that his symptoms were not typical of heart attack pain.
The Plaintiff’s Lay Evidence
96 Mr David Thompson, the electrical superintendent for the first defendant at Hazelwood Power Station, provided a statement dated 30 April 2010.
97 Mr Thompson set out that the duties carried out by the plaintiff before the heart attack were not heavy and overly strenuous. The cable pulling which he was doing on the said date could be quite repetitious.
98 Mr Thompson described the plaintiff’s return to work in September 2005 on modified duties consisting of PETE testing - the testing of portable electrical equipment; manufacturing twin two foot daisy chain lights; namely, portable lighting used in boiler rooms at the power plant; prep work similar to permanent lighting for the plant and controlled cubical wiring in the workshop.
99 Most of the plaintiff’s duties, other than taking oil samples, were in the workshop and that was an infrequent task anyway. He was not allowed to work at home. He was required to work on a stable floor. He was not permitted to use stairs or ladders and always had to be with a workmate.
100 Mr Thompson believed the plaintiff complied with his restrictions, however, the plaintiff complained he did not have enough to do. However, it was explained to him that because of those restrictions, he could only work in the workshop when work was available.
101 Mr Thompson stated that the plaintiff was not really suitable for office duties because he did not have appropriate skills, especially with computers, and skills in English for the instructions given to him. Mr Thompson noted the plaintiff attended work every day that he could attend, but he was not very good about advising when his appointments were.
102 The plaintiff never complained to him about bullying or harassment.
103 It was correct the plaintiff sometimes went home while on modified duties, but it was not because there was not any work. It was only when he did not feel well.
104 Mr Thompson stated the first defendant had never denied the plaintiff’s injuries were covered by WorkCover. In December 2006, the plaintiff’s employment was terminated as there was no longer sufficient suitable work and there was medical evidence that the plaintiff would not be able to return to his substantive duties.
The Plaintiff’s Medical Evidence
105 The plaintiff attended the Emergency Department at the LRH on 20 July 2005. He was then referred to St Vincent’s for an angiogram.
106 The report from St Vincent’s sets out the plaintiff attended on 21 July 2005, having had an NSTEMI elevation myocardial infarction, stabilised at Traralgon.
107 Management at St Vincent’s comprised an angiography which was performed on 25 July 2005, revealing mild disease of left anterior descending and right coronary arteries only, with reasonably well preserved left ventricular systolic function.
108 The plaintiff was discharged on 26 July and placed on medical therapy and advised strongly to cease smoking and to take his medication.
109 The plaintiff first attended Dr O’Leary on 5 August 2005 when he requested a fitness certificate for return to work following the heart attack. Dr O’Leary issued a certificate on 9 August 2005, covering the period till 23 August. The plaintiff was also referred to cardiologist, Dr Ogilvy.
110 Dr O’Leary noted risk factors for heart disease in the plaintiff were hypertension, stress, smoking, and hypercholesterolaemia.
111 Given Dr O’Leary had only seen the plaintiff after the hospital admission, it was not possible for him to comment on the plaintiff’s physical status prior to the heart attack.
112 Dr O’Leary noted the plaintiff resumed light duties on 29 August 2005, while continuing cardiac rehabilitation. However, the plaintiff presented again on 29 September 2005 with angina and was advised to rest until 7 October 2005.
113 Dr O’Leary referred the plaintiff to the counsellor at LCHS Morwell on 30 November 2005.
114 On 5 September 2005, Dr Ogilvy wrote to Dr O’Leary thanking him for referring the plaintiff.
115 Dr Ogilvy described the plaintiff as asymptomatic with moderate activity since non-stemi five weeks ago. Dr Ogilvy recommended the plaintiff was suitable to return to light duties but he needed to complete cardiac rehabilitation for high level physical fitness before he returned to full time work duties. He recommended the plaintiff cease smoking.
116 Dr Ogilvy noted the plaintiff had commenced cardiac rehabilitation at LRH the previous day and was currently working fixing the kitchen at home. Dr Ogilvy noted that on 20 July 2005, there was sudden severe central chest pain while pulling heavy cables at work.
117 Dr Ogilvy reported to CGU on 8 September 2005, advising of a diagnosis of non-stemi-non-ST elevation myocardial infarction. He advised coronary angiography revealed mild atherosclerotic disease in the left anterior descending and right coronary arteries. He noted that such disease had developed over a period of years under the influence of smoking and possibly hypertension. He advised that the plaintiff’s myocardial infarction occurred in the context of heavy labour at work.
118 Dr Ogilvy thought it likely such labour contributed to rupture of an atherosclerotic plaque in the coronary circulation with associated thrombus formation and obstruction to blood flow at the site of the plaque rupture. Other than recommending ceasing smoking, continuation of medication and participation in cardiac rehabilitation, no further treatment was planned.
119 Dr Ogilvy issued a light duties certificate on 29 August 2005, with a comment that a return to full duties would require completion of a cardiac rehabilitation program and an achievement of a high level of fitness, anticipated to take approximately another six weeks.
120 Dr Norwood in Morwell first treated the plaintiff in March 2006.
121 Dr Norwood reported in March 2008 that when first seen, the plaintiff’s work claim had been accepted. The plaintiff had ongoing problems with hypertension that was very difficult to control despite medication and he also had ongoing chest pain to the right of his sternum.
122 Dr Norwood advised, although the plaintiff had been concerned his pain was cardiac, Dr Norwood believed it to be skeletomuscular and possibly related to his work.
123 Dr Norwood noted that although the plaintiff was happy to continue on light duties, the plaintiff felt a number of his work colleagues were making fun of him, and due to the stress of this, he stopped working and continued to be off work.
124 As of March 2008, Dr Norwood thought the plaintiff’s main issues were his previous AMI/his hypertension and ongoing stress condition and right sided chest pain.
125 Dr Norwood then considered the plaintiff unfit for work and thought it would be difficult to see how he could return to work in an inhospitable work environment. He believed the plaintiff’s stress would be aggravating his hypertension, although he noted that was being looked into in greater detail by Dr Boers.
126 Dr Norwood most recently reported in March 2011.
127 He noted that since the heart attack, the plaintiff continued to have some right sided chest pain, which Dr Norwood believed was skeletomuscular. The plaintiff also suffered from mood problems.
128 Dr Norwood advised the plaintiff continued to suffer from very difficult to control hypertension and remained on a large cocktail of anti hypertensives and still his blood pressure was far from perfect, which placed him at some risk of further cardiac problems.
129 Dr Norwood advised, the plaintiff usually presented as an anxious individual and he believed the plaintiff’s anxiety was aggravating his blood pressure. He believed the plaintiff should continue with psychological counselling to help manage his anxiety and depression.
130 Dr Norwood noted the plaintiff had continuing cardiac risk factors despite a large combination of anti hypertensives and cholesterol lowering drugs. There remained significant risk factors for further cardiovascular or cerebrovascular events. He did not consider the plaintiff fit for return to work, especially in his pre-injury employment.
131 Dr Koh, from the Emergency Department at LRH reported that the plaintiff attended on 20 April 2006, with a complaint of central chest pain on drilling steel plate when he was assigned to do heavy work alone not within his work restrictions. Physical examination was unremarkable and the plaintiff was pain free by the time of the consult.
132 Dr Gnanaharan saw the plaintiff at Latrobe Cardiac Clinic on 24 July 2006, when the plaintiff presented with right sided chest pain when sleeping, on a daily basis that was not getting better since July 2005 and had worsened over the previous four weeks.
133 Dr Gnanaharan wrote to Dr Norwood on 25 July 2006. He diagnosed the plaintiff’s condition as “malignant hypertension (uncontrolled), chest pains/coronary angiogram last year revealed mild two vessel disease and hyperlipidemia”.
134 Dr Gnanaharan thought it was not possible to do a stress test while the plaintiff’s blood pressure was so high. He arranged for the plaintiff to undergo an echocardiography and some blood tests. On examination, the plaintiff’s blood pressure was 180/110.
135 The echocardiogram report of 31 July 2006, showed findings consistent with Grade 1 left ventricle. There were no significant regional wall motion abnormalities detected. There was normal atrial size and possibly raised right atrial pressure from IVC appearance.
136 The plaintiff was further reviewed by Dr Gnanaharan on 22 September 2006. The plaintiff’s blood pressure was then 180/100. It was noted when the echocardiography was done, it was pretty good and it was surprising it did not show any left ventricular hypertrophy. However, it did show reversal of E/A velocity.
137 The plaintiff was seen at St Vincent’s for a bout of atypical chest pain in October 2006, with a follow up stress Thallium scan, organised in Melbourne, which was negative. He was reviewed at St Vincent’s on 24 April 2007, and had his anti hypertension medication increased, but was reassured there was no evidence of residual ischaemic burden, and he was discharged back to his local medical officer.
138 Dr Patricia Fox, cardiologist, advised Dr Norwood on 24 April 2007 that the plaintiff’s Thallium stress test was negative. Blood pressure was 156/94 and Cardizem was added to the plaintiff’s treatment. Dr Fox advised she had asked the plaintiff to see Dr Norwood regularly.
139 Dr Anthony Boers, consultant rheumatologist, wrote to Dr Norwood on a number of occasions following review of the plaintiff in March, April, May and June 2008.
140 Following the first examination, Dr Boers advised that the plaintiff had significant high blood pressure issues and was on near maximal medical therapy, with a blood pressure reading of 220/110. Dr Boers noted there was nothing to find on examination to suggest a secondary cause.
141 In April, Dr Boers advised that the plaintiff’s blood pressure was a little better and there was no secondary cause for his hypertension with normal renal ultrasound and renal dopplers.
142 In May, the plaintiff’s blood pressure was quite labile and appeared to be quite dependent on anxiety and stress. Dr Boers decided not to alter the plaintiff’s therapy at that time.
143 On review in June 2008, Dr Boers advised that the plaintiff’s blood pressure was reasonably okay, at 140/70. Dr Boers noted the plaintiff was a rather complex character and as he did not want to miss any cardiac process, Dr Boers organised a Thallium stress test.
144 The plaintiff was referred to psychologist Ms Tabary-Collins by Dr O’Leary for anxiety and hypertension post non-stemi. He was first assessed by her on 15 December 2005.
145 Ms Tabary-Collins reported in August 2007 that since commencing treatment, the plaintiff had been experiencing two sets of problems, the first relating to his hypertension and the second to his relationship with the first defendant which took a long time to accept liability for the plaintiff’s work accident.
146 There were difficulties with the plaintiff’s wages and no work could be found for him and he was expected to sit and wait for work. Further, on a couple of instances, the plaintiff was assigned work he was not supposed to do and as that meant sitting alone and idle, he sometimes attempted the work which led to another emergency on 20 April 2006 when he presented at the Emergency Department at the LRH.
147 By July 2006, the plaintiff was told there was no work for him during the hours he spent with the first defendant and he was also having difficulty getting paid. At that time, he was working three days a week, three hours a day. He would turn up for work and be told there was nothing to do. The pains in his chest which had never disappeared, increased and prevented quality sleep.
148 In August 2006, the plaintiff experienced a brief moment of elation when he was transferred to a different section and actually given work but that did not last for very long. In September, the plaintiff was sent to do some work alone in a paddock against work instructions.
149 Ms Tabary-Collins noted it was suggested by the plaintiff’s general practitioner and the return to work officer that the plaintiff was well enough to have his working hours extended. However this proposal met with resistance from the first defendant who advised there were no suitable duties available.
150 In October 2006, the plaintiff discovered a meeting had taken place between the first defendant and the return to work officer about which the plaintiff had not been informed. At that time, the plaintiff still had problems with unpaid wages and sought union help. Later in the year, another meeting was scheduled between the return to work officer and the first defendant about which the plaintiff was again not informed.
151 By December 2006, following public humiliation by one of his employers, the plaintiff’s depression became severe and he started to experience panic attacks, actually breaking down during a counselling session.
152 Given the severity of his symptoms, Ms Tabary-Collins consulted the plaintiff’s doctor and it was agreed a WorkCover claim would be made for bullying.
153 Ms Tabary-Collins wrote to Dr Norwood in December 2006 expressing her concern at the effects of the plaintiff’s work situation and the difficulties he was experiencing. She requested the plaintiff put in a claim to WorkCover regarding his bullying at work.
154 As a result of the treatment he received at the hands of the first defendant, Ms Tabary-Collins thought the plaintiff developed a generalised anxiety disorder (“GAD”) and a treatment program was proposed by her.
155 Ms Tabary-Collins reported again on 2 November 2010. Having repeated the details set out in her first report, she referred to the opinion of the Medical Panel in July 2008. She again diagnosed a GAD as a result of treatment received at the hands of the first defendant.
156 Ms Tabary-Collins noted that from a psychological viewpoint and assuming it were at all possible to obtain work that was physically suitable and acceptable to the plaintiff’s doctors, it was her opinion that with the correct support, he could contemplate some form of part-time paid employment.
157 Whilst her relationship with the plaintiff had been described by a medical practitioner as one of dependence, she preferred to offer the contrary view that it was precisely because the plaintiff was having supportive counselling he was able to function as well as he did.
158 On 17 March 2011, Ms Tabary-Collins wrote to the plaintiff’s solicitors confirming the diagnosis of a GAD. She reported that the plaintiff engaged well with the psychotherapeutic process. In spite of their combined efforts over the years, the uncertainty regarding his cardiac symptoms, coupled with nigh on unmanageable hypertension dating back to his professional difficulties had conspired to make the condition chronic for the plaintiff.
159 Further, in her view as a consequence of this condition the plaintiff had an ongoing battle with depression – as could be expected in similar circumstances and she thought it was not helped by the hassles he had received from his insurance company.
160 Ms Tabary-Collins concluded the plaintiff would need ongoing supportive counselling. She noted indeed, any attempts by the insurance company to cease this resource had caused a catastrophic increase in the plaintiff’s anxiety.
161 Ms Tabary-Collins advised the frequency of counselling did not have to be of a high nature. It was her view that knowing that this facility was available in times of crisis was perhaps as much in itself a help to plaintiff as the actual contact. She envisaged that monthly sessions could eventually become more spaced apart unless deterioration took place in the plaintiff’s emotional condition.
162 Ms Tabary-Collins reported to the plaintiff’s solicitors some time after late May 2011 that she had seen the plaintiff that day for the first time since the end of May 2011.
163 She advised that she was shocked at the plaintiff’s physical and psychological deterioration. She noted the normally dapper man was dressed negligently and his personal hygiene was not up to his usual standard. The plaintiff scored as overwhelmingly anxious and he appeared to be very severely depressed. The content of the plaintiff’s speech during their session confirmed his disastrous state of mind.
164 Ms Tabary-Collins advised there did not appear to be any objective exterior factors – apart from some regular problems relating to the plaintiff’s pay from his ex-employers – that would explain such a marked decline except for the fact that the plaintiff, through no fault of his own or hers, had not in fact had any psychotherapy for nearly two and a half months.
165 During that visit the plaintiff handed her the decision from CGU based on Dr Dharwadkar’s view that the plaintiff did not in fact profit from ongoing regular contact with her. She invited the plaintiff’s solicitor, to consider that what they were witnessing bore a direct contradiction to that doctor’s advice.
Medico-Legal Evidence
166 The Medical Panel on 22 July 2008 considered the plaintiff was suffering from marked physical deconditioning following a myocardial infarction and its subsequent management. He also had an adjustment disorder with anxiety relevant to the claimed injury.
167 In the Panel’s opinion, the plaintiff’s current marked physical deconditioning and adjustment disorder with anxiety was still materially contributed to by his claimed injury. Further, the Panel considered that the plaintiff’s incapacity for work was still materially contributed to by the claimed injury.
168 Dr Hamer, cardiologist and electro-physiologist, examined the plaintiff on 27 April 2009 on behalf of CGU.
169 On examination, the plaintiff’s blood pressure was 200/110 and fell to 175/110 standing.
170 Dr Harmer confirmed the plaintiff suffered a small myocardial infarction which he noted Dr Jelenik thought was probably related to a plaque rupture of an atherosclerotic core lesion although the maximal narrowing in the coronary vessel found at the time of the angiogram was thirty per cent and the left ventricular function was unaffected by the infarct.
171 Dr Hamer noted the plaintiff’s predisposition to atherosclerotic plaque was likely to relate to his history of smoking and the discovery of an elevated cholesterol level. He noted there was no evidence of the plaintiff having hypertension prior to the infarct based on the normal physical assessment nine months previously.
172 Dr Hamer agreed with Dr Jelinek’s view that the heavy lifting carried out at work was consistent with the plaintiff’s employment and a significant contributing factor to the occurrence of the infarct.
173 It was also Dr Hamer’s opinion, supported by Professor Jelinek and the Medical Panel, that the plaintiff’s state of health/current symptoms were not related to his heart condition itself but to an anxiety condition that began two months after the infarct, in part related to the specific interaction with the manager of the workplace.
174 That condition had been further compounded by the inability of the plaintiff to resume his normal job despite continued anti-depressant medication and counselling.
175 Noting the Medical Panel opinion, Dr Hamer believed, on the severity of the plaintiff’s current symptoms due to the anxiety condition, he had no current capacity for any form of work. Dr Hamer thought it was likely work that would be suitable would involve exertion that the plaintiff would be incapable of performing without significant symptoms.
176 He noted the plaintiff’s anxiety condition was under current management but the prognosis for a significant improvement was bleak given the duration of the illness to date.
177 Dr Sillcock, occupational physician, examined the plaintiff on 25 July 2011.
178 The plaintiff told her he had chest pain with any exertion. He got some dizziness. He was short of breath with any physical activity. He took Anginine for chest pain and was dizzy about two hours after he took it. He had become very depressed and was being treated in relation thereto.
179 The plaintiff told Dr Sillcock that he could only walk for about ten minutes at a slow pace and not drive for very long. He could not do the cleaning but did cooking and washing. He could not do anything outside and had to have someone install the solar power, which he would have done previously. He was not able to go fishing any more and did not go out that much socially because of pain.
180 On physical examination, the plaintiff’s blood pressure was 205/110, his pulse was 72 and regular and he had normal heart sound. He did not have any discernable cardiac enlargement and did not have any signs of heart failure.
181 Dr Sillcock concluded the plaintiff probably had a mild heart attack. She noted he now had high blood pressure, which had been almost impossible to control. Dr Sillcock thought that was probably compounded by anxiety and it appeared to be questionable as to whether the plaintiff’s current chest pain was due to cardiac factors or to anxiety.
182 Dr Sillcock thought the plaintiff was unfit for his pre injury employment and he was not fit for any other suitable employment. She noted his work experience which required physical work and that his uncontrolled high blood pressure meant it was unsuitable for him to be working in high risk areas that required a lot of physical effort.
183 Dr Serry, psychiatrist, examined the plaintiff on 8 February 2011.
184 On mental state examination, the plaintiff was a clear, precise and straight forward historian who presented information without embellishment. He demonstrated a normal affective range with prominent underlying depressive themes.
185 The plaintiff was anxious, apprehensive and frustrated by his circumstances and was also quite angry with work experiences.
186 There was no abnormality of thought stream or form, but thought content revealed an ongoing preoccupation with work difficulties, life changes and health issues. There were no psychotic features and cognitive assessment was unremarkable and insight was retained.
187 The plaintiff told Dr Serry of the heart attack and the pattern of difficulties including victimisation, harassment and being provided with inappropriate duties on his return to work, until he ceased work in 2006.
188 Dr Serry thought the plaintiff had developed a significant psychological reaction with ongoing symptoms of stress, anxiety, frustration and depression.
189 From a diagnostic point of view, Dr Serry thought the plaintiff had a chronic adjustment disorder with anxious and depressed mood, which had arisen as a result of his workplace injury.
190 He considered the plaintiff’s psychiatric injury was of at least moderate severity and likely to persist for the foreseeable future and it contributed to an incapacity for work which was likely to persist on the same basis.
191 Dr Serry thought the plaintiff required ongoing treatment for his psychiatric condition and while the plaintiff had some support from his psychologist, ideally he thought the plaintiff should be under the care of a treating psychiatrist. Further, he thought it reasonable and appropriate for the plaintiff’s antidepressant medication to be either increased in dose or changed to a different antidepressant, given the presence of persistent depressive symptomatology.
192 Dr Norman Rose, psychiatrist, examined the plaintiff at the request of CGU on 22 September 2010.
193 The plaintiff then complained of poor sleep and very low energy levels.
194 On mental state examination, the range of affect was normal. The plaintiff appeared to be more irritable and depressed, with continual complaints about the threat of withdrawal of psychological treatment. He gave a history of depressive symptoms but did not appear to be depressed.
195 There were no abnormalities in the structure, flow or content of speech and thought and there were no delusions. There were no hallucinations or other disturbances of perception. Cognition, concentration, memory and orientation appeared to be clinically adequate.
196 Dr Rose noted the plaintiff had been mildly but significantly depressed and that he appeared to be very emotionally dependent on his psychologist.
197 Dr Rose agreed with the Medical Panel that the plaintiff was suffering from an adjustment disorder with anxiety relevant to the claimed injury, but he suggested the anxiety was relatively mild.
198 Dr Rose did not agree with interminable psychological treatment, noting the plaintiff’s dependency and the fact he did not describe any lasting benefit. Because of that, Dr Rose believed treatment should be withdrawn over the next three months. He thought it reasonable the plaintiff continued taking Lexapro in the current dosage and that he may need to take it indefinitely. He noted the plaintiff would probably remain worried about his heart and would probably remain depressed for an indefinite period.
199 Dr Rose noted, clearly the plaintiff’s psychiatric condition was a reaction to his heart attack and continuing angina. He noted the plaintiff claimed to have been told by his doctors that he was a “walking time bomb”.
200 Dr Rose thought employment was still a cause of the plaintiff’s anxiety because it was driven by his heart attack, which had been accepted as work related. He thought the plaintiff appeared to have no current work capacity and could not return to modified pre-injury duties or alternate duties. He concluded, given the plaintiff’s neurotic preoccupation with death, it was unlikely he would ever return to any work.
201 Dr Rose suggested the plaintiff’s preoccupation about what would happen to his daughter when he died was contributing to his condition and the plaintiff appeared to have a cardiac neurosis with excessive anxiety about death.
202 The plaintiff was seen by psychiatrist, Dr Dharwadkar, in May 2011 on behalf of CGU. Dr Dharwadkar had available to him reports from Dr Rose, Ms Tabary Collins, and Dr Hammond.
203 The plaintiff told Dr Dharwadkar of disturbed sleep with chest pains, reduced appetite, low energy and motivation.
204 Dr Dharwadkar noted the plaintiff had a preoccupation with his chest pain and feelings of uncertainty about the future, noting his general practitioner had told him he was a “walking time bomb” and the plaintiff was scared of having another heart attack. He also had fear about what would happen to his daughter, if he died.
205 The plaintiff reported palpations, shortness of breath, shaking hands and dizziness on occasions.
206 On mental state examination, the plaintiff’s affect fluctuated from euthymic to mildly anxious with a reactive component. Range of affect was good. His mood was anxious but there was no formal thought disorder.
207 The plaintiff was preoccupied with his cardiac condition and reported that his chest pain increased when he was stressed.
208 Dr Dharwadkar noted the plaintiff considered the benefits of his current psychological treatment were predominantly reassuring in nature and these were only very short term and did not appear to have a lasting benefit.
209 Dr Dharwadkar thought the plaintiff would be able to undertake the activities of daily living if his current sessions with the psychologist were ceased.
210 Dr Dharwadkar noted that the psychiatric treatment of continuing with Escitalopram needed to be monitored with the help of the general practitioner, hence self management with reference to that was not possible.
211 Dr Dharwadkar advised the plaintiff’s psychiatric treatment did not need to be reviewed again in the near future. However, his cardiac treatment needed to be reviewed regularly.
212 Dr Dharwadkar diagnosed an adjustment disorder secondary to the infarction and the ongoing symptoms of angina and the elevated blood pressure. He noted there was also psychological amplification of pain due to the non work related psychological factors.
213 Dr Dharwadkar thought the plaintiff’s current psychiatric treatment in terms of medication was appropriate. However, he agreed with Dr Rose’s recommendation with reference to psychological sessions, noting that there was no lasting benefit from them, and hence they should be withdrawn in a phased manner, as suggested by Dr Rose.
214 Dr Dharwadkar thought the plaintiff needed to continue seeing his general practitioner, who could provide him with the support and reassurance required for his cardiac condition.
215 Dr Dharwadkar thought it was possible that if the plaintiff’s antidepressant medication was ceased, there may be potentially some difficulties in undertaking the activities of daily living. Self management was not possible, given the continuing psychiatric medication. He noted the plaintiff thought the benefits of the current psychological treatment were predominantly reassuring and they were only very short term and did not appear to have any lasting long term benefit.
Wage Rates
216 Wage rates provided by Flexi Personnel set out that a worker employed to perform light factory process work paid under the current Manufacturing and Associated Industries and Occupations Award 2010, as a Level C13, would receive a base hourly rate of $15.96 gross.
217 A worker employed to perform light bench work would be paid the same amount at a similar level under that award.
218 A worker employed to perform small electric engine repair work would be paid under that award as a Level C11 or C12 or C10, depending on the types of engine they were repairing and the qualifications required. A level C11 would receive a base gross hourly rate of $17.14. A level C10 would be paid $18.06 per hour.
The Defendant’s Medical Evidence
219 Dr Michael Jelinek, consultant cardiologist, first examined the plaintiff on 7 September 2005.
220 Dr Jelinek noted that at St Vincent’s, the plaintiff was regarded as having a non-ST elevation myocardial infarct. Further, a coronary angiogram showed minor coronary artery disease in all vessels, with nothing more than a thirty per cent stenosis in any vessel, and normal left ventricular function. The plaintiff’s electrocardiogram (“ECG”) was normal.
221 On examination, the plaintiff’s blood pressure was 160/95 with normal physical findings.
222 Dr Jelinek thought the plaintiff did have a myocardial infarct. That was a result of myocardial damage occurring in the context of very heavy strain in coronaries which were not able to dilate enough to provide adequate coronary blood flow for the demand of his work.
223 Dr Jelinek thought the plaintiff had sustained the infarct on the basis of a mild diffuse coronary artery disease. The infarct had been caused by work.
224 Dr Jelinek considered the plaintiff had no major sequelae and should be able to resume work in a slightly lighter working capacity. He noted the plaintiff’s reduction in his working capacity would only be to protect him from further myocardial infarction.
225 Having been provided with a circumstances report, Dr Jelinek confirmed that the infarct occurred because of unusually heavy physical exertion and there was no reason to change his original opinion.
226 Dr Jelinek re-examined the plaintiff on 15 November 2006 at which time the plaintiff was working three hours a day, three days a week. Dr Jelenik noted the plaintiff’s return to work was to be monitored at St Vincent’s.
227 On examination, the plaintiff’s blood pressure was 175/110.
228 Dr Jelenik thought current treatment was appropriate to controlling high blood pressure and preventing further cardiac episodes and most of that treatment would be planned for the rest of the plaintiff’s life. Dr Jelinek noted the plaintiff’s blood pressure had been very difficult to control since the infarct.
229 Dr Jelenik re examined the plaintiff on 14 January 2008.
230 On examination, the plaintiff’s blood pressure was 190/110. His heart was of normal size clinically with a dual rhythm being present.
231 Dr Jelinek confirmed the infarct was triggered by heavy lifting at work but he thought the work component had now resolved and the current symptoms were not due to coronary artery disease or myocardial ischemia.
232 Stating that the plaintiff’s work component had clearly resolved, Dr Jelinek noted that the plaintiff appeared to have symptoms suggestive of coronary ischemia despite the fact he had a normal Thallium exercise test and minimally abnormal coronary angiogram. Furthermore, he noted the plaintiff had severe hypertension and high cholesterol of over 7.
233 Dr Jelinek did not think the plaintiff had a current work capacity and believed he was debilitated by non ischaemic symptoms. He noted the plaintiff believed he suffered from angina and breathlessness and Dr Jelinek noted there was no objective support for this.
234 At that stage, he did not believe the plaintiff could return to work, or that any intervention or initiatives would help him do so. He thought the plaintiff would not be able find work as an electrician because of his various symptoms which were not related to coronary artery disease or myocardial ischemia. In theory, he thought the plaintiff could find work as an electrician as long as it did not involve heavy lifting or heights.
235 Dr Stephen Stern, psychiatrist, examined the plaintiff on 12 January 2006, 24 January 2008, 1 December 2009 and most recently on 11 April 2011.
236 On the initial consultation, the plaintiff complained of recurrent chest pain and shortness of breath, anxiety, disturbed sleep and lack of energy.
237 On mental state examination, the plaintiff was anxious and low in confidence. He was worried about the future and he felt the first defendant did not want him back. There was no evidence of psychosis. Orientation and memory were intact and intelligence was normal.
238 Dr Stern diagnosed an adjustment disorder with anxiety, which was a reaction to the myocardial infarction. He noted that the plaintiff felt he had been treated unfairly by the first defendant since his illness; therefore, employment was a significant contributing factor.
239 From a psychiatric aspect alone, Dr Stern thought the plaintiff was fit for all work, including pre-injury duties, noting his motivation was positive.
240 At that stage, Dr Stern thought the plaintiff needed antidepressant medication and ten psychological treatments. He noted the plaintiff’s psychiatric prognosis was of gradual improvement. However, he thought the plaintiff may be left with residual anxiety about his heart disease.
241 Similar complaints were made by the plaintiff on the second examination, at which time Dr Stern noted there had been no improvement in the plaintiff’s psychiatric disorder. He then thought the plaintiff from a psychiatric aspect was fit for work, and noted the plaintiff was prepared to return to modified duties not involving working on heights.
242 On the third examination, Dr Stern noted there had been no improvement in the plaintiff’s psychiatric condition. He thought the plaintiff’s psychiatric state had stabilised and that he would be left with chronic anxiety.
243 Dr Stern considered from a psychiatric aspect alone, the plaintiff was fit for full time modified duties and that he was not psychiatrically fit for his pre injury duties.
244 On the final examination, Dr Stern noted the plaintiff had been depressed since he last saw him in December. He considered the plaintiff was now suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. In his view, the plaintiff’s chronic chest pains seemed to have a psychogenic basis and that indicated a pain disorder.
245 From a psychiatric aspect alone, Dr Stern thought the plaintiff was fit for modified duties, noting he was apprehensive about any physical work because of his cardiac condition and that the plaintiff was prepared to retrain in computer work.
246 Dr Stern thought the plaintiff needed long term antidepressant medication. As the plaintiff felt psychological treatment was helping him to relax, Dr Stern thought this should continue on a monthly basis. He considered the plaintiff’s psychiatric state had stabilised.
247 Dr Stern was provided with details of the Stores Technical Officer - Electrical job at Australian Paper in Maryvale. In his opinion from a psychiatric aspect alone, the plaintiff was fit for that work on a full time basis.
248 Dr Hammond from the Melbourne Hypertension Clinic initially examined the plaintiff on 7 January 2007.
249 Dr Hammond referred to the infarct on the said date and the angiogram which revealed a minor coronary artery disease (atherosclerosis) with nothing more than a thirty per cent stenosis revealed. Dr Hammond noted there was no evidence of a threatening coronary artery stenosis, nor evidence of coronary occlusion.
250 Dr Hammond commented that the plaintiff had developed psychological problems with poor treatment at work on his return to work.
251 The plaintiff also reported receiving treatment for hypertension.
252 The plaintiff told Dr Hammond that he followed a sedentary lifestyle pattern. He avoided heavy activity and climbing ladders. He felt dizzy around midday, due to his medication. He reported having no energy. He felt anxious and reported suffering from chest pain which occurred on a daily basis at rest. The plaintiff experienced no exertional chest pain. He took Anginine for his chest pains, which he believed helped his symptoms.
253 On physical examination, the plaintiff was anxious and his blood pressure initially was 200/85, settling to 160/80. There was no evidence of left ventricular hypertrophy. A dual rhythm was present with no bruits audible. A resting ECG was performed, which was within normal limits; in particular there was no evidence of left ventricular hypertrophy present.
254 Dr Hammond thought the plaintiff’s impairment had stabilised.
255 He noted the plaintiff had suffered a small non-ST elevation myocardial infarction and had not suffered any significant myocardial damage. He noted the plaintiff had been shown to have minimal coronary artery disease with no evidence of major coronary artery stenosis and he had not suffered a coronary artery occlusion.
256 Dr Hammond thought the plaintiff was currently asymptomatic from a cardiac standpoint. The plaintiff suffered from chest pains which occurred at rest and were not typical of ischaemic chest pain and Dr Hammond believed these pains were of psychosomatic origin.
257 On re-examination on 16 February 2010, the plaintiff reported suffering from chest pain over the right pectoral region. He reported the pains may occur at rest, while he is sleeping, or may occur sometimes on exertion. On occasion, those pains were relieved by Anginine, but not in a persistent or predictable pattern.
258 As Dr Hammond noted in his previous report, these symptoms were not typical of pain due to myocardial ischemia.
259 On examination, the plaintiff’s blood pressure was at 175/95. There were no abnormalities in terms of cardiac findings. Dr Hammond confirmed the plaintiff’s work did act as a precipitating factor for the onset of the infarction. However, he noted the plaintiff suffered from chest pains which were not typical of those of myocardial ischemia and most likely related to the plaintiff’s anxiety state.
260 Dr Hammond believed, from a cardiac standpoint, the plaintiff had a current work capacity. He noted the reference to a Thallium stress test performed at St Vincent’s in 2007 which reportedly showed no conclusive evidence of myocardial ischemia.
261 Before consideration of a return to work, Dr Hammond believed it would be prudent for the plaintiff to undertake a further exercise stress test, and if there was no evidence of myocardial ischemia on exercise, he believed the plaintiff would be suitable to return to a wide range of occupations from a cardiac standpoint and be able to return to his previous occupation as an electrician; however, he considered it prudent to start on a graduated basis.
262 Dr Hammond examined the plaintiff on 29 March 2011. The plaintiff’s blood pressure was then 180/90 and there were no cardiac abnormalities found.
263 Dr Hammond concluded the plaintiff continued to suffer from intermittent chest pains, which were atypical for pains due to myocardial ischemia. He noted the plaintiff also suffered from hypertension and from an anxiety state described as an adjustment disorder with anxiety.
264 In Dr Hammond’s view, the plaintiff’s anxiety state and the occurrence of intermittent chest pains prevented him from working in his previous occupation of an electrician.
265 Dr Hammond noted the plaintiff was documented to have coronary atherosclerosis, albeit of a relatively minor degree, in 2005. Dr Hammond noted this was a progressive condition, such that it may be expected the plaintiff would suffer from progression of that over time, noting he had suffered a previous non-ST segment elevation myocardial infarction. He considered the risk of further heart attack would be in the range of five per cent over five years.
266 Dr Hammond thought the plaintiff’s elevated blood pressure most likely represented anxiety and a significant degree of “white coat” effect. He thought it unlikely the plaintiff would be suitable to undertake pre-injury duties and confirmed that the chest pains as described most likely represented a psychosomatic manifestation of the plaintiff’s anxiety.
267 Dr Hammond last examined the plaintiff on 30 June 2011, having received the report of an exercise stress echocardiogram performed on 20 April 2011, which was described as being non-diagnostic by Dr Gordon.
268 On physical examination, the plaintiff’s blood pressure was 180/100 with no abnormal cardiac signs. A resting ECG was performed. Left axis deviation was noted (consistent with left and anterior fascicular block); minor T wave changes were also noted; otherwise the ECG was within normal limits.
269 Noting the myocardial infarct, Dr Hammond commented the plaintiff did demonstrate a rise in cardiac enzyme (serum troponin level); however serial investigations including the recent echocardiogram demonstrated he had not suffered sufficient cardiac damage to impair his left ventricular systolic function, which remained normal from the result of the angiogram. He referred to Dr Fox’s report which set out there was no objective evidence of ongoing consequences of this small heart attack with normal left ventricular function and a negative stress test for myocardial ischemia in 2007.
270 Dr Hammond noted, at the time of the 2011 exercise test, the plaintiff stopped due to fatigue and did not develop symptoms of chest pain, nor did he demonstrate any evidence of myocardial ischemia on either ECG or echocardiographic findings.
271 The fact the plaintiff achieved seventy per cent of his predicted maximum heart rate, Dr Hammond thought was evidence supporting the view that his chest pains were not of cardiac origin. He did note that although the test was regarded as being non-diagnostic, the plaintiff’s heart rate did increase from 89 to 112, such that a moderate degree of cardiovascular stress was generated.
272 Dr Hammond’s interpretation of the plaintiff’s reduced exercise performance was that it was most likely to be due to physical deconditioning due to his sedentary lifestyle pattern.
273 Dr Hammond noted that a report from LRH dated 21 July 2005, set out that at the time of the plaintiff’s initial presentation his systolic blood pressure was recorded at 192. Dr Hammond noted, although the plaintiff had reported he was not hypertensive prior to that episode, he suggested the plaintiff may have been hypertensive prior to presentation.
274 Dr Hammond then commented on the views of Professor Nestel whose report was not ultimately relied upon by the plaintiff.
275 Dr Hammond provided a supplementary report on 9 August 2011, having been provided with the plaintiff’s clinical records dating back to May 2003. He noted, in the ordinary course of events, one would have expected the plaintiff to have recovered from the myocardial infarct within a period of four to six weeks, returning to work thereafter, but prudence would have dictated he returned to work performing duties that did not involve heavy physical lifting, at least initially.
276 Dr Hammond noted that consistently, since that time, medical practitioners had been of the view that the plaintiff’s chest pains were non cardiac in origin.
277 Dr Hammond confirmed the plaintiff had been diagnosed with an adjustment disorder with anxiety.
278 In terms of hypertension, he noted, on 20 October 2003, the plaintiff had a blood pressure of 150/90 and it was recommended his blood pressure be reviewed. However, there was no record of an attendance until 5 August 2005 after the myocardial infarction. Dr Hammond noted, at the time of admission at the hospital, the plaintiff did demonstrate an elevated blood pressure.
279 Subsequent to the infarct, the plaintiff’s blood pressure was satisfactory until October 2005 when there was a reading of 160/98 and subsequently his readings were generally higher.
280 Dr Hammond referred to the April 2011 stress test and also the Thallium study of 21 February 2007.
281 Dr Hammond confirmed the plaintiff’s physical deconditioning was apparent on examination.
282 With this further information, Dr Hammond concluded the plaintiff did suffer from hypertension prior to the myocardial infarction. He also suffered from hypercholesterolemia. He had been a smoker and continued to smoke following the infarct.
283 Dr Hammond noted that at a time which appeared to be parallel to when he started to suffer from psychological symptoms, the plaintiff’s blood pressure readings did increase.
284 Dr Hammond noted when he had examined the plaintiff, the plaintiff had demonstrated anxiety and increased blood pressure. He believed it plausible to suggest that the plaintiff’s psychological state (anxiety/adjustment disorder) had been a contributing factor to his increase in blood pressure readings over time. He noted the plaintiff did have evidence of hypertensive heart disease with moderate left ventricular hypertrophy documented on echocardiography.
285 From a standpoint of his previous myocardial infarction and lack of documented coronary artery disease, Dr Hammond believed the plaintiff would be suitable to return to work in a wide variety of occupations, sedentary in nature, or involving light to moderate physical activity. However, he believed that the constellation of the plaintiff’s medical problems, coupled with his psychological problems, reduced the likelihood of him returning to the workplace.
286 Dr Kornan, psychiatrist, examined the plaintiff on 2 April 2008. The plaintiff told him that at that time he was not smoking.
287 On mental state examination, the plaintiff’s mental facilities waned as the interview went on and there were some problems with concentration. There was no disorder of perception. The plaintiff’s judgment was influenced by his mood presentation and he appeared to be someone who had subjective distress and was quite tense and anxious. He appeared to be someone who had depression. There were no psychotic features, delusions or hallucinations.
288 Dr Kornan diagnosed an adjustment disorder with depression, a chronic anxiety state and a specific anxiety phobia about a further heart attack or sudden death.
289 Dr Kornan considered from a psychiatric viewpoint, the plaintiff’s impairment had stabilised. He did not comment on the plaintiff’s work capacity.
Return to Work Plans
290 A number of return to work plans were compiled by the KTM-SDA Group assessment report.
291 In a return to work plan of September 2006, as of 11 September 2006, the plaintiff was to work four hours, three days by two weeks, for weeks 13 and 14 with a non-RDO week Tuesday, Wednesday, Friday and an RDO week, Tuesday, Wednesday, Thursday.
292 For weeks 15 and 16 commencing on 5 September 2006, he was to work four hours a day, four days a week, for two weeks; non-RDO week, Monday, Tuesday, Thursday, Friday and an RDO week Tuesday, Wednesday, Thursday, Friday; with the same duties and restrictions as set out in the later return to work plan.
293 In a further plan the following month, it was suggested the plaintiff in the week commencing on 10 October 2006, work four hours a day, four days a week; with a non-RDO week, Monday, Tuesday, Thursday, Friday and an RDO week; and an RDO week, Monday, Tuesday, Thursday Friday.
294 The restrictions placed on the plaintiff’s duties were to avoid climbing stairs, moderate exertion, driving limitations due to dizziness, avoidance of large machinery, power tools and manual work, avoid being alone and avoid working at heights.
Stores Technical Officer - Electrical
295 The job of Stores Technical Officer- Electrical at Australian Paper in Maryvale was advertised in the Latrobe Valley Express on 27 June 2011.
296 The responsibilities of this position were to provide technical support to the engineering store and the purchasing department, cataloguing skills in AUSLANG and the use of Oniqua software, quality assurance of goods received, administering the quarantine system for receipt of inventory, implementation and administration of the spare parts inventory optimisation (SOS) system, specifying and auditing the correct storage, preservation and handling of inventory and managing applicable technical documentation for the engineering store.
297 To be considered for the position, applicants must demonstrate previous experience in electrical trades and/or technical roles, knowledge of inventory/store/warehouse functions, have excellent communication skills and strong analytical and troubleshooting skills, excellent people and team skills, have a high customer service focus, good computer skills, in particular MS Office and CMMS, be committed to safety and safe work practices, a willingness to undergo appropriate training and development and purchasing and cataloguing experience was desirable but not essential.
298 Competencies for the job were identified as customer service, continuous improvement; creativity and innovation, maintaining an openness to trialling alternative approaches, embracing change, environmental health and safety, ethics and accountability; working relationships, analysis and problem solving, communication, judgment, adapting to changes in work relationships, structures and environments (embracing change); productivity and efficiency and technical job knowledge Creativity and innovation was required and described as developing new and alternative approaches to existing practices.
Overview
299 It is not disputed that the plaintiff suffered a compensable injury on the said date – a heart attack in the course of his employment with the first defendant due to the heavy nature of his duties working with cables.
300 The plaintiff’s claim in relation to the heart attack was accepted and weekly payments of compensation continue.
301 Whilst there was some mention by Dr Hammond that the plaintiff had hypertension before the heart attack with a high blood pressure reading in 2003, the following year, the year before the heart attack, the plaintiff was cleared fit for another job.
302 The issue of aggravation was not dealt with in submissions and on the limited medical evidence, I do not consider this to be an aggravation case.
303 Initially this application was brought pursuant to sub-ss.134AB (a) and (c). However, during cross-examination, the claim pursuant to sub-s.(a) was withdrawn.
304 I appreciate why this course was taken by counsel for the plaintiff as there was very little medical support for an argument that there were ongoing physical consequences of the heart attack, which itself was small without later complications.
305 The plaintiff must therefore establish that the mental or behavioural consequences relating to the heart attack are severe.
306 In determining whether the plaintiff’s condition satisfies this definition, the plaintiff’s credit is of particular relevance due to the degree of subjectivity involved in such a condition.
307 Whilst the plaintiff misled doctors advising them he had ceased smoking after the heart attack, which clearly is not the case as the video demonstrated, there is no evidence that the plaintiff exaggerated or embellished his condition, nor was there any medical opinion to this effect.
308 I accept the plaintiff was a credible witness who confirmed in his viva voce evidence significant ongoing complaints since the heart attack which he has consistently reported to medical examiners.
309 Although the plaintiff was shown smoking on the video at various times, the footage otherwise simply showed him undertaking normal daily activities spending a lot of time in supermarkets and shopping centres – activities which were not inconsistent with his evidence as to his current lifestyle.
310 The consensus of medical opinion is that the plaintiff suffers from an adjustment/anxiety disorder with depressed mood. In addition, Dr Rose diagnosed a cardiac neurosis which Dr Kornan also found, describing the condition as a specific anxiety phobia about a further heart attack or sudden death.
311 What are the consequences of the plaintiff’s psychiatric state?
312 I accept that the plaintiff suffers from anxiety and depression. He is frustrated and irritable as a result of the changes in his life following the heart attack, in particular his inability to pursue his chosen career and the various daily activities he previously enjoyed. He lacks motivation and energy and has difficulty relating to other people.
313 The cardiac neurosis which has been diagnosed, involves fear of death and further heart attack and also interferes with the plaintiff’s sleep.
314 The plaintiff continues to require psychiatric treatment and medication in relation to these symptoms.
315 In this case, in addition to these typical features of an adjustment disorder as described by the various medical examiners, there are also physical manifestations of the plaintiff’s psychiatric condition; namely, shortness of breath, chest pain and dizziness associated with the plaintiff’s medication intake.
316 The plaintiff cannot engage in any activity involving much exertion without suffering chest pain and shortness of breath. His wife does all the housework and gardening because the plaintiff is incapable of engaging in activity even of this relatively minor nature.
317 Clearly, given these restrictions, the plaintiff is incapable of performing most of the duties involved in his pre injury employment or any other job.
318 The plaintiff’s mobility is significantly impaired, with difficulty walking for extended periods and problems with climbing stairs.
319 Whilst there is little medical support for an ongoing physical basis for the plaintiff’s cardiac type complaints, the plaintiff continues to experience chest pain in relation to which he is prescribed Anginine which provides him with some relief.
320 Further, as Dr Hammond noted, the plaintiff demonstrated anxiety and increased blood pressure on examination and it was plausible to suggest that the plaintiff’s psychological state had been a contributing factor to his increase in blood pressure readings over time and the need to take medication on an ongoing basis in relation thereto.
321 This array of symptoms have resulted in a situation where the plaintiff since the heart attack is unfit for his pre injury heavy work on electrical cables or any other significant electrical work – a view accepted by all medical practitioners in this case. It is accepted that it would be unwise for the plaintiff to work at heights or engage in any heavy lifting or any tasks requiring physical exertion.
322 In my view, the plaintiff’s capacity for any employment is very limited and he could not return to any electrical work or physical work of other than a very minor nature.
323 Having experienced problems of this nature for over six years, I accept that the plaintiff’s psychiatric condition is permanent in the sense that it is likely to last into the foreseeable future. Medical opinion is that the plaintiff’s prognosis is poor.
324 In these circumstances, I consider the plaintiff has a permanent severe mental or permanent severe behavioural disorder or disturbance.
325 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)
at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
326 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 327 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
328 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
329 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
330 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein ; See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 70.
331 I am therefore required to determine a “without injury” earnings figure.
332 The parties agreed on the figure of $101,302 in this regard. Sixty per cent of that amount is $60,781 or $1,168 per week.
333 The plaintiff’s present earnings from personal exertion are nil.
334 To obtain leave to bring proceedings for damages for loss of earning capacity, the plaintiff therefore has to show that on a permanent basis he cannot earn more than $60,781 per year.
335 In my view, the plaintiff has established the requisite loss.
336 The plaintiff has obviously had a good work history, which has involved working as an electrician on site at large electrical installations. He has done this type of work all his life since completing his apprenticeship as a teenager
337 Since the heart attack, on his return to work the plaintiff was only able to carry out modified lighter duties and had difficulty doing so as evidenced by his attendance at LRH Emergency in April with a complaint of central chest pain on drilling steel plate when he was assigned to do heavy work alone not within his work restrictions.
338 The plaintiff was only capable of working three days a week for three hours with significant restrictions placed on his duties.
339 The plaintiff has not looked for work since leaving the first defendant’s employ as he considers himself incapable of working due to his condition.
340 Whilst all medical practitioners are of the view the plaintiff could not return to unrestricted pre injury employment, most practitioners including his treating general practitioner, consider the plaintiff has no capacity for work. This view is shared by Dr Sillcock, Dr Rose, Dr Hamer and Dr Hammond.
341 From a psychiatric aspect alone, Dr Stern however, thought the plaintiff was fit for modified duties, noting the plaintiff was apprehensive about any physical work because of his cardiac condition. Dr Stern considered the plaintiff was fit for the job of Stores Technical Officer Electrical .
342 In my view, Dr Stern did not give appropriate weight to the plaintiff’s symptoms beyond those of the adjustment/anxiety disorder namely chest pain, shortness of breath and cardiac neurosis when considering the plaintiff’s suitability for the advertised job and other work.
343 Ms Tabary-Collins support for a return to work in late 2010 was very limited noting that from a psychological viewpoint and assuming it were at all possible to obtain work that was physically suitable and acceptable to the plaintiff’s doctors, with the correct support, he could contemplate some form of part time paid employment.
344 I do not accept the plaintiff is suitable for the job of Stores Technical Officer - Electrical. Even if he was able to complete the necessary computer degree, he does not have the personal, communication and other technical skills required for that job.
345 Whilst I thought the plaintiff clearly understood English, many times during his evidence I had difficulty understanding him. This situation would make it very difficult for the plaintiff to work effectively in a relatively highly paid job requiring technical and communication skills.
346 Any capacity the plaintiff may have to return to his trade or other employment would be in light, off site electrical work in work of a type where he would earn the hourly rates set out in the Flexi Personnel report. Even working a forty hour week in such jobs, something clearly beyond the plaintiff’s capacity, the plaintiff ‘s earnings would fall far short of the relevant weekly figure of $1,168.
347 Taking into account the plaintiff’s age, education, skills and work experience, the nature of his incapacity and the nature of his pre injury employment, I do not consider he has a capacity for suitable employment as defined in section 5 of the Act.
348 Accordingly, I am satisfied that the plaintiff has established that he has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
349 I am satisfied the plaintiff’s impairment is permanent with him having experienced chest pain since 2005 which has not improved. The consensus of medical opinion is that plaintiff’s prognosis is poor.
350 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
351 In light of my findings as to the plaintiff’s impairment and his incapacity for employed, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
352 As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, he is at large to make a claim for damages; i.e. for both pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd (2009) VSC 454 (7 October 2009) at paragraph 147, and Advanced Cable Pty Ltd & VWA v Abdulle (2009) VSCA 170.
353 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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