Gavrilovski v VWA
[2020] VCC 2043
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-00731
| TONY GAVRILOVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2020 | |
DATE OF JUDGMENT: | 17 December 2020 | |
CASE MAY BE CITED AS: | Gavrilovski v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2043 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury and Compensation Act 2013 – s335(2) and s325(1)(c) – application in respect to pain and suffering and loss of earning capacity – injury to the spine and mental disturbance or disorder – reliance upon paragraphs (a) and (c) of the definition – concession in relation to plaintiff satisfying test in relation to pain and suffering – whether test in relation to loss of earning capacity satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Mr B House | Henry Carus & Associates |
| For the Defendant | Mr A Saunders | Thomson Geer |
HIS HONOUR:
(1)General background
1 This matter comes before me by way of an application pursuant to s335(2)(b) of the Workplace Injury and Rehabilitation Compensation Act 2013, herein after referred to as “the Act”. In bringing his application, the plaintiff relies upon paragraphs (a) and (c) of the definition of “serious injury” found in s325(1) of the Act. The plaintiff is seeking leave to bring proceedings in respect of injuries sustained when he was employed as a maintenance worker at the St Albans Secondary College, hereinafter referred to as “the College. The physical injuries relied upon are to the lumbar and cervical spines. The injury relied upon in relation to paragraph (c) of the definition could be described as an alleged chronic adjustment disorder.
2 In bringing his application, the plaintiff relies upon injuries suffered throughout the course of employment and particularly upon a specific injury which occurred on 26 July 2017, when he was using a shovel to deal with a large hole which had been dug by a bobcat. What occurred on 26 July 2017 shall hereinafter be referred to as “the accident”.
3 At the commencement of the hearing of the application, counsel for the defendant stated that there was no dispute as to the happening of the relevant injuries. Further, it was conceded that the consequences of the injuries satisfy the statutory tests in relation to pain and suffering. Hence, the area of dispute was confined to matters such as loss of earning capacity and, in particular, capacity to engage in allegedly suitable employment. In relation to these matters, I would refer to the transcript. The transcript with which I have been provided is electronic in nature and to be viewed on a video screen. Unfortunately it appears as one continuous “page” without a numbering system. However, I would be confident that the concessions made by Mr Saunders on behalf of the defendant and the very helpful identification of the issues appear on what normally would have been page 1 of the transcript. As stated, the identification by counsel of the real areas of dispute was very helpful and enabled the hearing to be conducted and concluded in a time-efficient manner.
4 Mr I McDonald QC with Mr B House of Counsel appeared on behalf of the plaintiff. Mr A Saunders of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence using the video link, the parties having agreed that the hearing could be conducted in this fashion. In so doing, he confirmed that the contents of two affidavits dated 11 October 2019 and 29 September 2020 were true and correct. An affidavit of his wife sworn 29 September 2020 was also placed in evidence, but she was not cross-examined. The balance of the evidence was documentary in nature, save for some very brief video material to which further reference shall be made in the discussion concerning the plaintiff’s credit.
(2)The Plaintiff’s background, training and employment prior to the accident
5 The plaintiff is aged 51 years, he having been born in December 1968. He is a married man with two children. He was born in Macedonia, but was brought to Australia when he was four years of age. Thus, his primary education was in Australia. He attended St Albans Technical School until Year 11, concentrating on subjects such as woodworking and the like. He then attended Footscray TAFE, where he did a course concerning sales management. From 1984 to 1988 he worked as a time share salesman, but was not successful. In 1988 he found employment as a security officer based at Victoria University and worked there for a number of years. That employment came to an end following the plaintiff suffering from a condition of stress and anxiety and being absent from employment for a couple of years. When his symptoms abated, he commenced work at the College as a maintenance worker. It was whilst he was so working, on average for something in the order of 25-27½ hours per week, that the injuries occurred.
(3)The Plaintiff as a witness
6 I found the plaintiff to be a credible witness. Indeed, as stated, at least for the purposes of the present application, the defendant has conceded that the plaintiff has a level of pain and suffering of sufficient magnitude to satisfy the statutory test. I note that the plaintiff’s treating psychiatrist, Dr Indra Mohan, described him as being alert and attentive, with good judgment and insight. Dr Michael Epstein, consultant psychiatrist, has provided two detailed reports to the plaintiff’s solicitors. The impression which he formed was that the plaintiff was credible and that his physical limitations led to his current mental state. Dr Richard Prytula, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described him as being pleasant and cooperative. He also referred to the plaintiff as having normal perception, along with reasonable insight and judgment.
7 In short, I found the plaintiff to be an honest and reliable witness.
(4)The state of the plaintiff’s health prior to the injuries and the accident
8 As stated, the plaintiff had suffered from psychological or psychiatric problems of sufficient magnitude to cause him to be off work for approximately two years in 2009 and 2010. This was when he was employed at Victoria University. He has sworn that, after the cessation of that employment, his psychological symptoms improved and thus he commenced working at the College in approximately 2011.
9 The plaintiff suffered from a cardiac problem in 2008. In 2009, he seems to have suffered some form of seizure and dislocation of the right shoulder.
10 He had also suffered some minor back and neck pain following a slipping incident on 8 July 2005. At the time of commencement of his employment at the College, he was not suffering from ongoing neck or back pain.
(5)The injury, its diagnosis and prognosis
11 The plaintiff was employed by the College as a maintenance worker. A substantial part of his work involved the manoeuvring and emptying of heavy bins. The plaintiff experienced low back and neck pain from time to time, but did not seek medical attention. His duties also involved such things as gardening work. The accident occurred on 26 July 2017, when he was using a shovel removing sludge and the like from a deep hole. It would appear that he may have seen his general practitioner with some neck symptoms about a fortnight before this.
12 Given the admission in relation to the statutory test being satisfied in respect of pain and suffering and the remaining dispute being centred upon earning capacity, I shall not go into the medical history in great detail.
13 Following the accident, the plaintiff’s treating general practitioner was Dr Mahrouf Muhammed of the Plaza Medical Centre at Keilor Downs. He in turn referred the plaintiff to Mr John Cunningham, orthopaedic surgeon. Radiological investigations were carried out. These included an MRI of the lumbosacral spine performed on 11 September 2017. The conclusion of the radiologist was that there were small disc protrusions at L4/5 and L5/S1. The protrusion at L5/S1 was more significant. There was some associated mild right-sided and moderate left-sided foraminal narrowing. An MRI of the cervical spine was carried out on 18 October 2017. This revealed multilevel disc degeneration with a possible left foraminal disc protrusion at C4/5 with high grade compromise of the left C5 nerve.
14 Treatment over time has included a cervical spine injection under CT guidance administered by Mr Cunningham on 11 December 2018. It is also apparent that Mr Cunningham suggested an anterior cervical decompression and fusion, but also mentioned to Dr Muhammed that the plaintiff was “understandably … quite nervous about this”. Indeed, it is quite apparent that the plaintiff was, and is, not prepared to undergo cervical spine surgery. It would appear that, at one stage, a C4/5 anterior cervical decompression and fusion was contemplated and the risks were discussed. There was some correspondence with the defendant about the costs associated with such surgery, but the plaintiff did not go ahead with it. Mr Cunningham has not seen the plaintiff since December 2018, when he performed a transforaminal injection at C4/5 in the hope of providing some pain relief. In a report to the plaintiff’s solicitors of 19 July 2020, Mr Cunningham, whilst pointing out that he had not seen the plaintiff since 2018, stated that, when last so seen, the plaintiff was clearly suffering from incapacity and would have a much better capacity for employment if he was not in so much pain.
15 Given the concessions that have been made, I will not go through the various reports concerning physiotherapy treatment and the like. For the moment, I shall also place to one side reports in relation to the plaintiff’s mental health.
16 The plaintiff has been seen for medico‑legal purposes in relation to his spinal injuries and his capacity for employment. Dr Richard Sullivan, anaesthetist and pain specialist, reported to the plaintiff’s solicitors on 8 July 2019. Dr Sullivan summarised the plaintiff’s situation as being one of a chronic pain condition involving both the neck, the low back and sciatica. He stated that there was a clear basis for these complaints. He referred to the radiological evidence. He implicated employment. He suspected that the plaintiff would require anterior cervical decompression and fusion. He also raised the possibility of the plaintiff being a potential candidate for interventional procedures concerning his low back and left-sided sciatica.
17 In relation to employment, Dr Sullivan believed that the plaintiff was not in a position to return to the workplace in any meaningful way. He thought that, at the best, in the longer term the plaintiff could, hypothetically, re-engage in some sort of passive role of a part-time nature for between 10 and 16 hours per week and in a role where he had the capacity to have frequent and regular breaks. He would be precluded from activities involving lifting, bending, twisting, squatting, kneeling, using his arms above shoulder height or holding his neck in fixed, flexed or extended positions. He was of the view that the plaintiff’s chronic pain condition would continue into the foreseeable future.
18 Dr Sullivan reported to the plaintiff’s solicitors again on 22 July 2020. He had seen the plaintiff on that day. Dr Sullivan’s diagnosis of the plaintiff’s injuries remained unchanged, being essentially aggravation of cervical and lumbar spondylosis caused by the workplace injury. He was of the view that the plaintiff remained a potential candidate for interventional procedures and structural spinal surgery. His conclusion was that he did not believe that the plaintiff had the capacity to re-engage in any form of work in a sustained and reliable fashion, whether such work be vigorous or of a sedentary nature and regardless of whether it was in a full-time or part-time capacity. There were also side effects from the medications which he was taking. It was the opinion of Dr Sullivan that these limitations would continue into the foreseeable future. Even if the plaintiff did undergo surgery, Dr Sullivan thought it unlikely that it would affect the plaintiff’s longer term functional or vocational capacity.
19 Subsequently, the plaintiff’s solicitors forwarded to Dr Sullivan medical reports of Associate Professor Doherty, Mr Michael Dooley and Dr Indra Mohan, all of whom had examined the plaintiff at the request of the defendant. They also forwarded to Dr Sullivan a vocational assessment carried out by Mr Nick Janides at the request of the defendant, along with some surveillance footage of the plaintiff. Dr Sullivan did not see the plaintiff again, but was asked to comment concerning this material. Dr Sullivan stated that the surveillance material did not change his opinion. The same could be said of the defendant’s medical material, Dr Sullivan pointing out that these reports contained no new information. In relation to the vocational assessment of Mr Janides, Dr Sullivan considered the outline. He believed that the plaintiff had no capacity to work as a sales assistant. The same could be said of work as a stock clerk, an information officer, a weigh bridge operator, an administrative assistant or a car rental officer. In short, he was of the opinion that the plaintiff could not reasonably train for or undertake any of the suggested roles on either a part-time or full-time basis. It would not be feasible for him to undertake the necessary training for such roles. This situation would continue for the foreseeable future.
20 Mr John O’Brien, orthopaedic surgeon, has also seen the plaintiff at the request of his solicitors. He first reported on 19 June 2019. Mr O’Brien took an appropriate and detailed history. This included the fact that the plaintiff stated that the severity of the pain in his neck was worse than that in the lower back. In relation to the plaintiff’s neck symptoms, the conclusion of Mr O’Brien was that he presented with chronic cervical and left arm pain related to the aggravation of pre-existing cervical spondylosis. His diagnosis in relation to the low back was of symptomatic lumbar spondylosis. The nature of both the chronic neck and low back pain suggested a poor prognosis. Mr O’Brien considered that the plaintiff was physically incapable of undertaking any form of manual duties. He could not cope physically with any form of suggested suitable employment. Mr O’Brien regarded the plaintiff as being totally incapacitated and believed that such level of incapacity was permanent.
21 Mr O’Brien examined the plaintiff again on 10 August 2020, reporting on that day. The plaintiff stated that the severity of his pain had increased both in the neck and lower back. He was continuing to undergo conservative treatment, including medication, exercises and the frequent use of a TENS machine. He had also been undergoing psychological and, more recently, psychiatric treatment. The diagnosis of Mr O’Brien in relation to both the cervical and lumbar injuries remained unchanged. Mr O’Brien thought that the plaintiff’s clinical condition was stable and the prognosis remained poor. He considered the plaintiff to be totally and permanently incapacitated. There was no prospect of him returning to any form of gainful employment in the future.
22 As was the situation with Dr Sullivan, Mr O’Brien was forwarded further material, this being a supplementary report from Associate Professor Doherty, a similar report from Mr Dooley, a report from Dr Mohan, a Labour Market Analysis and video surveillance. The conclusion of Mr O’Brien was that his opinion in relation to the plaintiff’s work capacity remained unchanged. From the physical viewpoint, the plaintiff has no capacity for gainful employment. Each of the proposed occupations contained in the Labour Market Analysis was unsuitable, apart from the fact that there did not appear to have been consideration of such job options in relation to the individual plaintiff’s potential further employment. In any event, having read the list of proposed duties in relation to each job option, they were unsuitable. Mr O’Brien confirmed that the plaintiff was totally incapacitated and would not return to gainful employment. He added that the viewing of the surveillance video did not demonstrate any physical aspects which would lead him to change his opinion.
23 I turn now to the defendant’s medical material in relation to the plaintiff’s physical injuries.
24 Dr Rene Dupuche, consultant physician, saw the plaintiff at the request of the defendant on 8 October 2018, reporting on 16 October. The history taken by Dr Dupuche effectively focussed entirely on the accident, although also referring to the plaintiff being aware of some neck pain and back discomfort when performing duties prior to the accident. Effectively the diagnosis of Dr Dupuche was of the exacerbation of degenerative changes, particularly on the date of the accident. He also believed that there was a substantial psychological overlay. He considered the prognosis to be guarded. Dr Dupuche expressed the view that the plaintiff would never be able to return to work that was mechanically stressful to any level of his cervical spine. He considered that the plaintiff probably had a capacity for work in an extremely modified manner.
25 Specifically, the diagnosis of Dr Dupuche in relation to the cervical spine was of multilevel disc degeneration, with left foraminal disc protrusion and left C5 nerve root impingement. In relation to the lumbar spine, the diagnosis was of disc degeneration, with a disc protrusion at L5/S1 and probable S1 nerve root abutment, with that probable impingement being on the left side. Dr Dupuche also diagnosed pain sensitisation, cervicogenic headache and paravertebral muscle spasm, in addition to depression and neuropathic pain. He considered that the work-related aggravation had not resolved. He was of the view the plaintiff could return to work on alternative duties working reduced hours, but such duties would have to be highly protective of the cervical and lumbar spines. The plaintiff may be able to return to full hours on a graduated basis, but the alternative duties would have to remain highly protective of his back. The plaintiff would be completely restricted in relation to bending, lifting, pushing and pulling and would have to be able to stand after half an hour of sitting and vice-versa. Dr Dupuche referred to the plaintiff as having a clear diagnosis. He suggested a nerve root block on the C5 left side and, if this was beneficial, the plaintiff should proceed to surgery.
26 Dr Dupuche provided a supplementary report on 30 November 2018 and does not appear to have seen the plaintiff again prior to this. He was asked to view some surveillance material. Dr Dupuche was of the view that this denoted a degree of function better than had been suggested at the time of the examination. However, he also observed that surveillance is not a good indicator of pain and represents only a short moment in time. He thought that the surveillance report was in keeping with the capacity of the plaintiff for work which was protective of the spine. There should be a graduated introductory period of work. However, there should be restrictions on use at all levels of the spine. He considered a Return to Work Plan with which he had been provided to be suitable.
27 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant and reported on 10 February 2020. Mr Dooley took a detailed history. He also viewed the radiology and carried out a physical examination. Mr Dooley considered the plaintiff to have naturally occurring and age-related degenerative disc disease of the cervical and lumbar spines. He believed that in the accident the plaintiff sustained soft tissue injuries to those regions and this most likely involved some aggravation of underlying disc disease. He was of the opinion that the constancy and intensity of the plaintiff’s ongoing pain and disability were greater than one would expect to see for his organic condition and that a psychological reaction was having significant influence upon the ongoing symptoms. He did not expect the plaintiff’s orthopaedic condition to deteriorate in time over and above the natural evolution of the underlying degenerative disc disease. However, he stated that the cause of the physical injuries suffered by the plaintiff was the accident. Mr Dooley believed that the plaintiff would not be able to carry out his pre-injury work, but would have a physical capacity to carry out light physical work and clerical duties. Suitable work would be that of a sales assistant, stock clerk, information officer, weigh bridge officer and the like.
28 Subsequently Mr Dooley was sent various medical reports, including that of Dr Sullivan of 22 July 2020. He was sent psychiatrists’ reports. Consideration of this documentation did not cause Mr Dooley to alter his previously expressed views.
29 I shall turn now to a brief consideration of the reports from psychiatrists. Given the concessions that have been made, the only relevance of these is in relation to credit or any reflections on work capacity.
30 The plaintiff’s treating psychiatrist has been Dr Indra Mohan. The plaintiff was referred to him by Dr Muhammed. Dr Mohan saw the plaintiff for the first time on 19 February 2020. Dr Mohan, who reported to Dr Muhammed on this day, considered the plaintiff to have an Adjustment Disorder with depressive symptoms. The impact of the injury upon him was discussed and some medication prescribed.
31 Dr Mohan reported to the plaintiff’s solicitors on 4 August 2020. Dr Mohan repeated the diagnosis of an Adjustment Disorder with persistent depressive symptoms, relating it to the work injury. He expressed the opinion that the plaintiff did not have a current capacity for meaningful employment. Unless there was recovery from the psychiatric symptoms, his capacity for employment was unlikely from a psychiatric perspective. The prognosis was guarded, with the symptoms related to his injury and his pain.
32 Dr Michael Epstein, consultant psychiatrist, saw the plaintiff at the request of his solicitors on 22 August 2019, reporting on the same day. In the opinion of Dr Epstein, as a consequence of his chronic pain, discomfort and disability, the plaintiff has developed a Chronic Adjustment Disorder with depressed mood. Dr Epstein considered the plaintiff’s condition to be stable and the prognosis for improvement to be poor. He thought it likely that the plaintiff’s mental state would improve if he was able to return to work consistent with his physical limitations.
33 Dr Epstein interviewed the plaintiff again on 7 August 2020, although due to the COVID restrictions, this interview was carried out by video link. On this occasion, Dr Epstein stated that the plaintiff continued to have a Chronic Adjustment Disorder with depressed mood that may have become worse because of the plaintiff’s inability to continue with hydrotherapy and because of the passage of time with no evident improvement. Possibly a deterioration in physical symptoms had also played a part. In the absence of definitive treatment such as surgery, the prospects of any further improvement in the plaintiff’s physical symptoms were poor. Accordingly, the prospects of any further improvement in his mental state are also poor. In the opinion of Dr Epstein, it is likely that, with the passage time, the plaintiff’s mental state will deteriorate further. The plaintiff’s mental state now contributes to his work incapacity, because of his problems with memory, concentration, irritability, lack of motivation and fatigue. In the opinion of Dr Epstein, taking into account only the plaintiff’s mental state, he is unfit to return to work in any capacity.
34 The solicitors for the plaintiff forwarded to Dr Epstein various medical reports, the Vocational Assessment of 8 September 2020 and the surveillance footage. Dr Epstein stated that the surveillance did not lead him to alter his view in relation to the plaintiff’s mental state. Dr Epstein also expressed the view that the plaintiff’s psychiatric injury and condition would inhibit his ability to obtain any of the work roles suggested in the Labour Market Analysis report of 8 September 2020. Dr Epstein had noted the suggested job options of sales assistant, stock clerk, information officer, administrative assistant and car rental officer. Overall, the material provided did not cause Dr Epstein to change his opinion.
35 The defendant has also had the plaintiff examined by a consultant psychiatrist. Associate Professor Peter Doherty examined the plaintiff on 10 August 2020, reporting on 20 August. Associate Professor Doherty formed the view that there was no diagnosable major depressive disorder or a pain-related psychiatric condition currently present. He stated that adjustment disorders naturally improve with the pre-establishment of coping mechanisms and the passage of time. He also regarded the plaintiff’s symptoms as being mild and thought that the outlook from a psychiatric point of view was positive. He expressed the opinion that the plaintiff could not return to his pre-injury employment without an exacerbation or aggravation of the adjustment disorder. It was likely that the experience of pain would increase and that there would be a consequential deterioration in the plaintiff’s mental health. However, he thought that there was a current full-time work capacity from a psychiatric point of view. The plaintiff had a capacity to undertake all the duties of the listed employment options – sales assistant, stock clerk and the like. He also had the psychological capacity to complete any necessary retraining. He thought that the plaintiff made overstatements in the quantification of pain and mood problems. Associate Professor Doherty also observed that the plaintiff had presented to him as a pain-prone person with a limp, which did not appear evident in the DVD footage which had been forwarded to him.
36 Associate Professor Doherty provided a supplementary report on 26 August 2020, apparently without seeing the plaintiff again. The purpose of this additional report was to comment upon reports from Dr Mohan and Dr Sullivan. In essence, neither report caused Associate Professor Doherty to alter the opinion previously expressed.
37 Dr Richard Prytula, consultant psychiatrist, also saw the plaintiff at the request of the defendant, although his report is to be found in the Plaintiff’s Court Book. Dr Prytula saw the plaintiff on 9 September 2019, reporting on the same day. Dr Prytula diagnosed an Adjustment Disorder with mixed anxious and depressed mood. Dr Prytula was aware of the plaintiff’s previous claim for bullying and harassment, but did not consider that there was a pre-existing component to the current condition. He believed the plaintiff to be incapacitated by sleep disturbance, reduced memory and concentration, and ongoing pain. He thought that the plaintiff had no current work capacity. He was unable to give a timeframe for a return to work capacity, stating that this would depend mainly on treatment and resolution of the plaintiff’s physical injury and pain. He thought that the plaintiff required further psychiatric treatment, also being of the view that a pain management program might assist. Dr Prytula was of the view that the plaintiff had no work capacity from a psychiatric point of view and suggested a review after some four months. There is no further report from him in evidence.
38 In relation to the plaintiff’s spinal injury, I accept the diagnosis of his treating orthopaedic surgeon, Mr Cunningham. In his opinion, the plaintiff has compression of the left C5 nerve root at the C4/5 foramen. The injury is of sufficient severity for Mr Cunningham to have recommended an anterior cervical decompression and fusion. This is consistent with the diagnosis of the plaintiff’s treating general practitioner, Dr Muhammed, that the plaintiff has a left C4/5 disc bulge with left C5 nerve root impingement and that, in the lower back, he has L4/5 and L5/S1 disc bulges with bilateral foraminal narrowing. These findings are consistent with the diagnosis of Mr O’Brien to the effect that the plaintiff presents with chronic cervical pain related to the pre-existing cervical spondylosis, the plaintiff also suffering from symptomatic lumbar spondylosis. Given the concession made at the outset by the defendant, the precise diagnosis is not a matter of great significance, but I do prefer that of those who have treated the plaintiff and of Mr O’Brien. I would add that the diagnosis of Dr Dupuche, examining on behalf of the defendant, was of a multilevel disc degeneration of the cervical spine, left foraminal disc protrusion and left C5 nerve root impingement. His diagnosis in relation to the lumbar spine was of disc degeneration with a disc protrusion at L5/S1 and S1 nerve root abutment. This is similar to the diagnoses referred to above.
39 In relation to the plaintiff’s mental injury, I prefer the opinions of the plaintiff’s treating psychiatrist Dr Mohan and of Dr Michael Epstein. That of Dr Mohan is that the plaintiff has an adjustment disorder with persistent depressive symptoms. Dr Epstein has provided thorough and well-reasoned reports. His diagnosis is of a chronic Adjustment Disorder with depressed mood. The treating general practitioner, Dr Muhammed, has also referred to the plaintiff’s secondary depression. Dr Prytula, examination of behalf of the defendant, also diagnosed an Adjustment Disorder with mixed anxious and depressed mood. I prefer those diagnoses to that of Associate Professor Doherty to the effect that the plaintiff suffers from a mild adjustment disorder with depressed and anxious mood. The opinion of Associate Professor Doherty that there was no related psychiatric condition present seems to me to be at odds with the opinion of the treating psychiatrist, in addition to that of Dr Epstein. In addition, Associate Professor Doherty seems to have been attaching greater significance to the surveillance video material than is warranted. I appreciate that these things are a matter of opinion, but the surveillance material did not impress me greatly. In his supplementary report of 22 September 2020, Dr Epstein described in some detail what was on the video surveillance, it having been forwarded to him for his consideration. His conclusion was that such material did not cause him to alter his opinion. As stated, I do not consider it of being of any great impact.
40 The end result is that I prefer and accept the diagnosis of the plaintiff’s mental health condition advanced by his treating psychiatrist and by Dr Epstein.
41 Insofar as the injury, either physical or mental, represents aggravation of a pre-existing condition, I am satisfied that, at the time of the accident, the plaintiff was coping with his employment and that the accident caused a very substantial increase in whatever symptoms he may have been suffering. However, I refer again to the concession made. I am also satisfied that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Apart from the concession made in relation to pain and suffering, this also involving acceptance of permanence, I note that Dr Richard Sullivan stated the plaintiff’s chronic pain condition will continue into the foreseeable future. Mr O’Brien stated that the plaintiff’s level of incapacity is permanent. He also described the plaintiff as being significantly restricted, a condition which he believed to be permanent. Insofar as the plaintiff’s mental injury is concerned, Dr Epstein has referred to the plaintiff as having a chronic condition and opined that the prognosis for improvement is poor. Indeed, in his more recent report, he stated that it was likely that, with the passage of time, the plaintiff’s mental state would deteriorate further. I am satisfied that the consequences of both the plaintiff’s physical and mental injuries are permanent within the meaning of the Act. I might add that such sets of consequences have been viewed separately in this regard and generally.
(6)Other developments since the injury
42 The plaintiff has not returned to work since the injury. Apart from the surveillance, to which, as stated, I attach no great significance, and the medical treatment and reports, little of relevance to the application as it now is has occurred since the accident. A possible exception to this is that the plaintiff was placed upon weekly payments of compensation as for total incapacity and such payments have continued, even beyond the expiry of the 130‑week period. As I understand the situation, the plaintiff continues to receive them.
(7) Opinion
43 I am of the view that the plaintiff has discharged the burden of proof. I accept that the plaintiff is totally incapacitated for employment, whether it be a consequence of his physical or mental injuries.
44 In relation to his spinal injury, I prefer and accept the evidence on behalf of the plaintiff. Dr Sullivan expressed the opinion that the plaintiff does not have the capacity to re-engage in any form of work in a sustained and reliable fashion. The plaintiff could not reasonably train for or undertake any of the suggested roles following vocational assessment. Mr John O’Brien, orthopaedic surgeon, stated that the plaintiff is totally and permanently incapacitated. As previously mentioned, I regard the plaintiff as a reliable witness. He has sworn that he has no realistic capacity for employment, although this embraces both physical and psychiatric injury. The above are opinions and views which I accept.
45 In any event, I am of the view that what could be described as the plaintiff’s psychiatric injury is of such magnitude as to incapacitate him for any employment. His treating psychiatrist, Dr Indra Mohan, has stated that the plaintiff does not have a current capacity for meaningful employment, this opinion being expressed in a report of 4 August 2020. Unless there was recovery from the psychiatric symptoms, the plaintiff was unlikely to regain a capacity for employment. There is no indication that any such recovery has occurred or will occur. Dr Michael Epstein has provided two comprehensive reports, the more recent being on 7 August 2020. In that report he expressed the opinion that, taking into account only the plaintiff’s mental state, he is unfit to return to work in any capacity. Dr Richard Prytula, consultant psychiatrist, examining on behalf of the defendant on 9 September 2019, stated that the plaintiff had no work capacity from a psychiatric point of view. He suggested a review in some four months, but there is no indication that this took place.
46 During his opening, Mr McDonald, on behalf of the plaintiff, stated that the case was being put on the basis that the plaintiff was totally incapacitated and that it was “pretty much all or nothing”. I agree that it seems to be a case of that nature. I find that the plaintiff has no capacity for employment and that this situation will continue for the foreseeable future. This is so, whether it is the plaintiff’s physical injury or his mental injury that is being considered.
47 As stated several times, it has been conceded that the consequences of the injuries satisfy the statutory tests in relation to pain and suffering.
48 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering damages and for loss of earning capacity.
49 I shall hear the parties as to any ancillary orders that are required.
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