Haris v Victorian WorkCover Authority
[2023] VCC 940
•19 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03820
| RICHARD HARIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2023 | |
DATE OF JUDGMENT: | 19 June 2023 | |
CASE MAY BE CITED AS: | Haris v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 940 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – multiple injuries – reliability of plaintiff’s evidence – whether plaintiff’s evidence as to medication was inconsistent – plaintiff’s capacity for alternative work
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Victorian WorkCover Authority v Brassington [2021] VSCA 236; Petkovski v Galletti [1994] 1 VR 436; Akbari v Victorian WorkCover Authority [2022] VSC 84; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17
Judgment: Application granted for pain and suffering in respect of injuries to the left hand. Application dismissed in respect of injuries to the right hand, psychiatric injury and loss of earnings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Mr E Makowski | Lander & Rogers |
HIS HONOUR:
1Mr Richard Haris claims he has sustained injury to his left and right wrists and as a result developed a psychiatric injury throughout the course of his employment while working with S M Interiors (Vic) Pty Ltd (“S M Interiors”). In respect of each claimed injury, Mr Haris seeks a determination that he has sustained a serious injury on both pain and suffering and loss of earning capacity grounds. The Victorian WorkCover Authority (“VWA”) accepts that the left and right wrist injuries occurred at work and are permanent. The VWA raises two grounds on which it opposes Mr Haris’ claims in respect of his physical injuries. First, that Mr Haris’ claimed impairment consequences do not rise to the level to be considered serious. This was said to be because Mr Haris’ evidence on this ground was inconsistent and unreliable, so much so that he could not discharge his burden. Second, the VWA put that Mr Haris had made no reasonable attempts at rehabilitation retraining in accordance with s325(g) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), so that he could not demonstrate he had no capacity for suitable employment. On that ground, it argued Mr Haris’ claim for a loss of earning determination must fail. As to the psychiatric injury, the VWA put that this claim must also fail, as the impairment consequences, even if they were accepted, as Mr Haris put, on a pain and suffering basis, were not severe. It then repeated its argument in respect of s325(g) as to the failure to attempt rehabilitation and retraining.
2For the reasons which follow, I have found that Mr Haris has sustained a serious injury to the left hand for pain and suffering purposes only. I further find that Mr Haris has not sustained a serious injury in respect of the right hand, or a permanent mental or behavioural disturbance or disorder of the requisite severity.
Relevant history
3Mr Haris was born in September 1979. He completed Year 12 at Jamieson Park Secondary College and then began working in a metal fabrication apprenticeship with his father. This was a four-year apprenticeship and he worked with his father for about five years or so.[1] He met his future wife, Lorraine, in 2002. He then ran his own tow-truck business from around 2009 for about three years. On 17 July 2012, he was the victim of an assault. Mr Haris had been at work when two men attempted to rob him with a shotgun and metal bar. He fought them, but suffered head injuries and a broken left hand. Mr Haris had one to two years away from work, during which time he received psychiatric therapy.[2] During this time, he struggled to sleep, had flashbacks, had crippling anxiety[3] and panic attacks.[4] He was prescribed sleeping tablets at various times thereafter.[5]
[1]Plaintiff’s Amended Court Book (“PACB”) 8
[2]PACB 51
[3]Defendant’s Amended Court Book (“DACB”) 55
[4]DACB 56
[5]DACB 53
4In 2014, he returned to work. This was with the employer, S M Interiors. His role was to install prefabricated bathroom units to blocks of units. This was heavy manual work. The work required him to push the prefabricated bathroom pods along steel tubes. Mr Haris deposed that the work was “a very physically hard job”.[6] On 27 November 2014, he reported pain in his left hand.[7]
[6]Plaintiff’s first affidavit, sworn 13 May 2022, PACB 10 at paragraph [10]
[7]PACB 8
5A few days later, he saw his treating doctor, Dr Trinh Thai, on 2 December 2014.[8] He was given time off work and a prescription for Voltaren. Ultrasound and x-ray of both wrists was then conducted.[9] No abnormality was detected. He attempted a return to work shortly afterward, but lasted, perhaps, a few days[10] and then went off work after a fall. He has not returned to work since that time. His doctor prescribed a brace for the left hand, but does not appear to have prescribed any medication at this stage. He was sent for some physiotherapy with Mr David Horvathon 11 February 2015.[11]
[8]DACB 60
[9]PACB 72
[10]Plaintiff’s first affidavit, sworn 13 May 2022 ,PACB 9 at paragraph [14]
[11]DACB 115
6By March 2015, it appeared that his left hand, in particular, was improving and the right hand was not so much a feature of his presentation.[12] His treating doctor was certifying him as being unable to do heavy and repetitive work. He was referred for an MRI scan.[13] He was seen by a medico-legal specialist for the VWA, Associate Professor Bruce Love, in May 2015, who concurred with his treating doctor that he could no longer continue his old work, but had a capacity for some jobs, and ought see a specialist.[14] He continued to report pain in both wrists. The MRI scan confirmed a bilateral wrist triangular fibrocartilage tear (“TFC”).[15] Mr Haris was ultimately referred to a hand surgeon, Mr Stephen Tham, who performed surgery on the left wrist on 17 September 2015. For reasons which will become evident, I record, at this point in the chronology, that despite the ongoing complaint of pain, the treating doctor notes do not refer to the prescription of medication during 2015, save for Effexor, an antidepressant medication.
[12]DACB 62
[13]DACB 62
[14]PACB 66
[15]PACB 73 and PACB 75
7After surgery, Mr Haris continued to complain of left wrist pain to his treating doctor.[16] At this stage, he was taking over-the-counter Nurofen and Panadol Rapid.[17] It was considered he could return to work on modified duties, which involved no lifting of over five kilograms or repetitive twisting.[18] Due to the ongoing pain, he had an MRI scan in April 2016. Mr Haris returned to see Mr Tham, who diagnosed a new tear to the TFC on the left-hand side. Mr Tham suggested further surgery, but he reminded Mr Haris that a repeat repair was not as likely to be as good as the first repair and that any pain was likely to persist.[19] Through 2016, Mr Haris returned to see Mr Tham on numerous occasions, however, there was no prescription for pain medication and it was noted by his treating doctor that the left hand remained troublesome, though the right hand had largely become symptom free.[20]
[16]DACB 68
[17]DACB 12
[18]Report of occupational physician, Dr Michael Baynes, dated 31 March 2016 at DACB 12
[19]PACB 26
[20]DACB 71
8In February 2017, it was suggested Mr Haris should attempt some retraining through AMS Consulting Group (Aust) (“AMS”), a vocational provider.[21] However, around this time, he reported worsening pain in the left hand. In particular, he reported an increase in pain, a clunking in his left wrist and he was finding it difficult to even carry a two-litre bottle of milk.[22] Around this time, it was noted that his reflux was being exacerbated by Nurofen and so he ceased taking this.
[21]DACB 71-2
[22]Medical report of Dr Baynes, dated 9 March 2017 at DACB 19
9On 22 May 2017, surgery was performed on the left wrist to the TFC by Mr Tham.
10In a report dated 23 November 2017, Dr Thai reported to the conciliation service that Mr Haris’ right wrist was not a significant problem, but the left wrist had some degree of pain, especially if lifting 0.5 kilogram to 1 kilogram weights, or performing repetitive motions, such as cutting food.[23] She considered he could work jobs where there was no heavy lifting or forceful gripping, and to avoid heavy work. She considered that he could work jobs as identified by Dr Michael Baynes in his earlier report. Those jobs were retail assistant, machine operator, plant hire coordinator, machine operator and test and tagger. Dr Baynes had considered those jobs could be worked by Mr Haris on a full-time basis.[24]
[23]PACB 29
[24]DACB 17 and 22. He added trade sales, spare parts interpreter, meter reader and weigh bridge operator. The AMS 130 Week Vocational Report is at DACB 190.
11Mr Haris sought a second opinion for his wrist pain and was referred to see Mr Anthony Berger, a hand surgeon, in December 2017. He considered that the ongoing symptoms related to abutment or irregularity on the deep surface of the TFC. He wondered whether further arthroscopy was necessary.[25] No such arthroscopy was performed. Through 2018, Mr Haris continued to complain of ongoing pain.[26] In February 2019, he was trialled on Lyrica for left wrist pain.[27] This was repeated in October 2020 for right wrist pain.[28]
[25]PACB 30
[26]DACB 77
[27]DACB 79
[28]DACB 89
12In June 2020, he was referred for EMG studies with Dr David Freilich, neurologist. He considered the study showed evidence of bilateral Carpal Tunnel Syndrome. However, when Mr Haris was reviewed by Mr Tham, he considered that the clinical signs were negative for carpal tunnel, but even if it was present, it was only of a mild to moderate degree.
13He was referred to see Associate Professor Evange Romas, medico-legal practitioner and rheumatologist on behalf of the VWA, in March 2022. He considered that the EMG study was, in fact, normal and all clinical testing was also normal.[29] He took a history that Mr Haris had previously used “lots of Tramadol and Panadeine Forte but currently only simple analgesic”.[30] He recorded that Mr Haris’ hands, appeared to him, to be calloused.
[29]PACB 70
[30]PACB 72 and DACB 24
14On 18 January 2023, Mr Haris saw Dr Eman Awad, a medico-legal practitioner and occupational physician, on behalf of his solicitors. He considered that Mr Haris could not do his old job and was unlikely to find work in the marketplace. He considered Mr Haris was unable to do both the weighbridge operator and rental/retail sales positions identified by Dr Baynes and those endorsed by Dr Thai earlier.
15On 5 February 2023, Mr Haris saw a medico-legal practitioner and psychiatrist Dr Ash Takyar, on behalf of his solicitors. He took a comprehensive history of the assault in 2012, but excluding that, considered that Mr Haris had a major depressive disorder and adjustment disorder with anxiety, as a result of his hand injuries. He considered Mr Haris was completely unable to work by reason of his psychiatric condition.
16On 30 March 2023, Mr Haris was referred to Dr Mary Wyatt, a medico-legal practitioner and occupational physician, on behalf of the VWA. She recorded that Mr Haris had no particular non-organic signs[31] and that he had reduced muscle bulk on the left side, consistent with underuse of the dominant left arm. She found no evidence of hand callousing, as Mr Romas had said.
[31]DACB 33
17In May 2023, Mr Haris saw Associate Professor Love, a medico-legal specialist and orthopaedic surgeon, on behalf of the VWA. He considered there was near full range of motion of each wrist, with no weakness or sensory change. He considered:
“I am unable to identify the precise pathology causing this man's current wrist pain. I would consider it most unusual for the symptoms that have been described to exist for such a prolonged period of time without any evidence of diminution of symptoms to some degree.”[32]
[32]Report of Associate Professor Love, dated 12 May 2023 at PACB 57
18He considered that Mr Haris could return to work in, what he considered, purely “observational” roles.[33]
[33]Report of Associate Professor Love, dated 12 May 2013 at PACB 60
19Mr Haris returned to see Dr Wyatt on 21 May 2023.[34] She considered he was able to work full duties’ work in any of the nominated positions, as a spare parts interpreter, test and tag technician, used caravan or car salesman, or forklift driver.
[34]DACB 188
20Mr Haris’ situation is that he currently remains on a 10-acre property just outside Melton. His wife works some days at home and also goes into work elsewhere. Otherwise, he is responsible for the care of their three children, aged eleven, eight and two-and-half. He will drive them to school and pick them up. He describes his activities around the house as being very limited. He will do some tinkering in his large shed, but otherwise struggles with housework. His wife deposes to having to hire a gardener to come and assist with keeping the grass down.
21Aside from the return to work in about December 2014, Mr Haris has done no rehabilitation or retraining courses and has not attempted to return to work anywhere else. He currently has no plans to do so.
The VWA’s contentions: the reliability of Mr Haris’ evidence
22The VWA first argued that Mr Haris’ evidence was inconsistent and unreliable. This was submitted to undermine his claimed impairment consequences as to the left wrist, right wrist and psychiatric injuries.
23Beginning with the non-contentious matters. The parties accepted that each claimed physical injury had to be separately assessed in terms of a serious impairment of the body function.[35] On this point, I find that the injury to the left wrist was a tear of the TFC.[36] The body function impaired is the left hand. As to the right hand, I find the injury to the right wrist is a tear of the TFC.[37] The body function impaired is the right hand. On the basis of the EMG study of Dr Freilich, I accept that there is bilateral Carpal Tunnel Syndrome affecting each hand. However, I find that it is only of a mild degree, given the clinical findings of Mr Tham, which were negative. I prefer the treating specialist’s opinion to that of Associate Professor Romas, because it accords with the EMG finding and he has a longer clinical history of treating Mr Haris.
[35]Victorian WorkCover Authority vBrassington [2021] VSCA 236
[36]PACB 25 and DACB 69
[37]DACB 69
Was Mr Haris’ evidence as to medication inconsistent?
24Moving on from those matters, the VWA submitted that Mr Haris’ evidence was inconsistent on several topics. The first was as to his need to consume painkilling medication. Mr Haris’ evidence, in his affidavit, was to the effect that, after the date of the injury, he was given Voltaren via prescription.[38] His affidavit does not depose to its ongoing use. Then his affidavit deposes to the two surgeries by Mr Tham and states:
“… I just used Panadol for the pain. On rare occasions I used Tramadol but it was only when I could not stand the pain”.[39]
[38]PACB 9, at paragraph [13]
[39]PACB 13 at paragraph [20]
25He then stated:
“… Long ago, I was given a prescription of Tramadol and I took it very rarely. I took it when the pain was so extreme that I just could not stand it anymore. Last year, Dr. Thai gave me some Pregabalin. That did not really help much. Sometimes, friends will give me strong painkillers like Panadeine Forte or Palexia when I am complaining to them of an extremely bad flare up (sic) pain ….”[40]
[40]PACB 14-15, at paragraph [26]
26Then, in his second affidavit, he deposed:
“… I have obtained a prescription for painkillers like Panadeine Forte or anti-inflammatories like Celebrex. Sometimes, I just take Panadol. I still use a Voltaren cream from time to time ….”[41]
[41]PACB 18, at paragraph [5]
27In cross-examination, he gave evidence that the pain from his wrists meant he needed to take sleeping tablets.[42] He said this was Panadol and Restavit (a sleeping tablet). There is no mention of Restavit in the affidavits. This is an obvious inconsistency. Mr Haris sought to explain this issue by suggesting that, as it was an over-the-counter medication, he had not put it in the affidavit.[43] As can be seen from the quotes above, Mr Haris had mentioned taking other over-the-counter medication such as Panadol, so it is unclear why he failed to mention Restavit. His answer is inconsistent on this point also. The answering of the question revealed a further inconsistency. The history of sleep difficulties due to wrist pain is also not borne out by the treating doctors’ notes. Mr Haris, in cross-examination, said that he had used Restavit regularly since 2014. He then later varied this to mean the last five years.[44] The treating doctors’ notes do not bear this out. There is no reference to sleep difficulties associated with the wrist injuries in the treating doctors’ notes.[45] This is a further inconsistency I find.
[42]Transcript (“T”) 14, Lines (“L”) 10-14
[43]T14, L18
[44]T15, L16
[45]DACB 60-89. There is the prescription of Temazepam for sleep difficulties on 11 November 2012, 11 September 2014, 16 December 2014 and 3 March 2015 – for difficulties mainly associated with the assault ꟷ 31 March 2015, 30 June 2015 and 4 April 2017 at PACB 54-73. None of these prescriptions occurred in the last five years.
28Mr Haris’ use of Panadeine Forte for his wrist pain was also put in issue in cross-examination. Mr Haris first gave evidence, in cross-examination, that he had regularly been on Panadeine Forte since 2014.[46] A review of the treating doctors’ notes do not reveal this to be true. In fact, Panadeine Forte only began to be prescribed for Mr Haris in mid-2022 at his new treating doctor’s clinic, Q1 Medical.[47] He then seemed to suggest, in cross-examination, that he did not recall what he was prescribed by Dr Thai – he just took whatever pain medication he was given.[48] When pressed as to why no prescriptions for Panadeine Forte were present in the treating doctors’ notes, he then retreated to saying “I didn’t used (sic) to take it so much, I didn’t, because I didn’t like what it done to me, how I felt”.[49] He then claimed:
Q: “So the left wrist pain has got worse?---
A: Yes.
Q: And that's made you commence pain medication?---
A: Yes.”[50]
[46]T16, L18
[47]Q1 Medical notes for 26 July 2022 at PACB 107-8
[48]T32
[49]T33, L9-11. The notes show he was prescribed one dose of Lyrica in 2017 and Tramadol, again, in 2019.
[50]T33, L15-16
29Mr Haris then went on to say he had obtained this pain medication from a friend living with him, who had cancer, and also prescriptions for Panadeine Forte, from which he took tablets as needed.[51] It will be recalled that he had referred to a friend giving him pain medications in his affidavit, as can be seen from above. Overall, there is no real mention in the notes of Dr Thai to Panadeine Forte. Nor does contemporaneous reporting around that time from Mr Tham, Dr Thai or Dr Baynes, record the need for Panadeine Forte. His wife’s affidavit makes no mention of this either. What is clear from that material, is that Mr Haris was taking Nurofen and Voltaren Rapid.[52] It was having the effect of aggravating his reflux.[53] Overall, Mr Haris’ evidence on this point was somewhat inconsistent. I do not accept he was taking Panadeine Forte regularly since 2014, as he described in cross-examination. I find, after this date, he was not prescribed painkillers, save for commencing Lyrica in mid-2017 for one month[54] and a prescription for Tramadol in October 2020, which lasted him about a year.[55] Rather, I find he commenced Panadeine Forte in mid-2022 for the first time.
[51]T33, L17-31
[52]DACB 13
[53]DACB 73 and DACB 77
[54]PACB 74
[55]PACB 90
30An example of the inconsistency and unreliability of his evidence as to the pain medication he was taking, also arises from his evidence about taking it from a friend, who lived with him, who had cancer. This is not mentioned in his affidavit, his wife’s affidavit, his treating doctors’ notes, or any other contemporaneous reporting. It also seems implausible that he would take tablets from a cancer victim when he could have obtained his own tablets, as he did with Tramadol in 2020. Overall, I find his evidence as to the levels of pain medication, and the type of it, was inconsistent and unreliable. I do not accept it.
31I do accept, however, that he did take Nurofen and Voltaren on occasion in the period after November 2014. How often is unclear. I find he likely ceased those medications in late 2017, when they began to aggravate his reflux. Since then, he has been on Lyrica for one prescription in June 2017 and the one Tramadol prescription, of which he took one box over one year. Otherwise, the evidence does not allow me to find how often he takes Panadol or Panadeine Forte, because of the unreliability and inconsistency of his evidence, as set out above. On this point, he says, in his affidavit,[56] that he only sometimes takes Panadol. He does not descend to describe how often, or in what quantities.
[56]PACB 16
Has Mr Haris correctly depicted his recreational activities?
32The next matter the VWA submitted demonstrated the unreliability of Mr Haris’ evidence, was the failure to accurately set out his current recreational activities. In his affidavit, Mr Haris deposes to enjoying outdoor activities like “camping, hunting and water sports”.[57] He went on to depose that he had tried water sports but found it “just too painful”.[58] This all left the impression that he had given up these activities. In cross-examination, however, he admitted to going jet skiing twice this year for twenty minutes at a time – though not all of it was active.[59] He also gave evidence of taking the family motorhome out with his wife and children on a holiday to Robe at Christmas 2022. He gave further evidence of going to Echuca with his boat three times this year.[60] The last time he was at Echuca with his boat was at Easter 2023. This was immediately prior to the swearing of his second affidavit. It is unclear, then, why none of this, but particularly the visits to Echuca with his boat, were mentioned in his supplementary affidavit. This level of activity in the last six months is significantly different to the picture painted in his and his wife’s affidavit material. It conveys a picture of a man who regularly goes on recreational outings and finds enjoyment in them. He was not cross-examined about his ability to camp and to hunt. I accept that the cross-examination reveals inconsistency and unreliability in Mr Haris’ evidence as to his ability to participate in recreational and sporting past times.
[57]PACB 8, at paragraph [5]
[58]PACB 14, at paragraph [25]
[59]T77, L11
[60]T40, L16
Is Mr Haris’ right wrist injury as bad as he deposes?
33The next submission the VWA put, was that Mr Haris’ right wrist was essentially pain free by December 2016.[61] Mr Haris’ evidence was that of bilateral wrist pain “all the time”,[62] that it wakes him in the night,[63] that it has reduced his strength, power and grip[64] and stops him doing domestic, recreational, social and occupational activities.[65] His wife’s affidavit did not descend to separate the right and left wrist impairments so it is, overall, of very limited use.
[61]Dr Thai’s treating doctor’s notes for 19 December 2016 at DACB 71; Report of Dr Baynes, dated 9 March 2017 at DACB 19; Dr Thai’s treating doctor’s notes for 23 November 2017 at PACB 29 and DACB 76.
[62]PACB 13, at paragraph [22]
[63]PACB 13, at paragraph [23]
[64]PACB 14, at paragraph [24]
[65]PACB 15, at paragraph [27]
34The first piece of evidence to consider is Dr Thai’s comment on the right wrist in April 2015, in which she noted that the right wrist symptoms had improved.[66] Dr Thai then opined in November 2017:
“… Whilst he continues to experience intermittent discomfort in his right wrist, it does not have a significant effect [on] his day to day activities of living ….”[67]
[66]PACB 63
[67]PACB 31
35It is also relevant that when Mr Haris saw Mr Berger in December 2017, there was no mention of the right wrist problems.[68] It could be expected that would have been the subject of discussions if problems in the right wrist were ongoing. This is especially so, as he had sought out Mr Berger for a second opinion on the management of his wrist problems. Against this, is a note from the treating doctor from mid-2018, that he “now has right wrist pain”.[69] Furthermore, the EMG study of bilateral Carpal Tunnel Syndrome stands against the VWA’s argument. I have accepted the carpal tunnel on the right side was mild on the basis of Mr Tham’s opinion and the lack of a strong history of symptoms in the treating doctors’ notes. In that regard, there is no treating doctor’s report after Dr Thai’s report in 2017, although it appears she, or the clinic where she worked, continued to treat Mr Haris until at least late 2021. There is not even a further treating doctor’s report from his new treating doctor at the Q1 Medical clinic in the last two years, who he began attending in July 2021. A review of these notes has few mentions of the right wrist. There is, therefore, a real gap in the evidence which depicts ongoing right wrist problems. Synthesising what evidence is before the Court and set out above overall, Mr Haris’ historical complaints of the quality of the right wrist problems, being similar to the left wrist, cannot be accepted. I consider this is a further area of inconsistency and unreliability in his evidence. It also is one of the foundations for my ultimate finding that the injury to the right wrist does not have impairment consequences of sufficient seriousness to warrant a determination that it is a serious injury.
[68]PACB 32
[69]Dr Jonathan Wee’s treating doctor’s note for 13 June 2018 at DACB 77
Was Mr Haris’ evidence of knowledge of caravans inconsistent?
36The last area the VWA said exposed an inconsistency and unreliability in Mr Haris’ evidence was as to his knowledge of caravans. In cross-examination, it was put to him that he had a work capacity to sell caravans. This was said to arise from two factors. The first was that, in 2015, he had explored the option of importing caravans for sale as a business.[70] The second was that he must, therefore, know enough about caravans to work in a local caravan sales business.[71] Mr Haris’ evidence as to why he did not proceed with the import business was because the US/AUD dollar conversion was not good. This answer clearly allowed for the fact that he had the capacity for such job, but it was simply the profitability of the venture that was stopping him working. This matter was explored in cross-examination and Mr Haris ultimately came to accept that he could probably learn to sell caravans.[72]
[70]Dr Thai’s treating doctor’s note for 23 July 2015 at DACB 66
[71]T23, L6
[72]T23, L13
37His affidavit material did not address either the potential to import caravans as a business or work in caravan sales locally. I do not consider the failure of the affidavit to mention these matters is deliberate obfuscation, however, the cross-examination on this point did reveal a capacity to learn and potentially gain employment in caravan sales. Broadly, this was contrary to the affidavit, which suggests he had no capacity for work, and it is a matter to be considered when assessing his claims as to impairment of his work capacity.
Mr Haris’ left hand injury
38I find Mr Haris has sustained a serious injury of the dominant left hand for pain and suffering purposes. It is universally accepted that he has had a TFC tear that Mr Tham has attempted to repair twice surgically. It is similarly accepted that his injury prevents him from returning to his old physical occupations, such as in metal fabrication and bathroom installation. All doctors accept this injury prevents Mr Haris from using his left hand for forceful repetitive tasks. He has thus lost a portion of his occupational capacity. I consider this a significant impairment consequence.
39Next, the same limitations affect his recreational pursuits of camping and hunting, water skiing and skiing. In particular, he deposed to having a love of water sports. This was the reason for purchasing his home near the Werribee river and for having a boat. While I have found he still uses the boat, he is unable to water ski as he used to, or teach his children to do so. The other great love that he had was of doing up and selling cars. This is also lost to him. He deposed to loving mechanics from a young age. All doctors agree that he cannot do the forceful physical work involved in such mechanical tasks. This is also a significant blow. All doctors agree that he cannot lift weights above 2 kilograms with his left hand. This is his dominant hand. This affects not only his work and recreational activities. His ability to carry groceries or tools around his property is limited. Similarly, and importantly, his ability to lift his children, given their young age, is reduced. While Mr Haris has not had ongoing treatment, he does still take Panadol on occasion for his pain. Though I cannot say with what frequency this is, the fact he still has ongoing pain nine years post injury is a significant factor. I also consider the fact he is only forty-four and has many years of dealing with what is clearly a permanent condition, is a real factor in assessing whether he has a serious injury. I am mindful in making this assessment of isolating the above impairment consequences to the left hand and not involving those associated with the right hand. On this point, Mr Haris’ affidavit often uses the term “wrists” when describing the consequences of the injury. However, in making my assessment above, I have had regard to the medical evidence which separates the effects of the left wrist injury to the right side, for example, as to lifting tolerances on the left side.[73]
[73]See Dr Thai’s treating doctor’s notes for 21 November 2017 as to weightbearing at DACB 76; the report of Dr Baynes, dated 9 March 2017, at DACB 21 as to the left-hand weight limit; the variable grip strengths found by Associate Professor Romas at DACB 24 and Dr Wyatt’s report, dated 30 March 2023, as to variable grip strength at DACB 30
40Mr Haris’ retained capacities must also be factored in. I record that he retains the ability to work full time in a range of positions. I have set out my findings on this point below when dealing with the claimed loss of earning capacity. He retains the ability to use his boat and motorhome to go on family outings. I find he can do some domestic tasks at home within the restrictions imposed on him by doctors. I find he can socialise normally.[74] Weighing up all these matters, I find he does have a serious injury of the left hand.
[74]T61, L18-20
The right hand
41Given the above matters, this only needs to be dealt with briefly. I have set out above why I find his evidence as to impairment of his right wrist inconsistent and unreliable. I have found, however, that Mr Haris’ impairment consequences are substantially different to his left side and I consider his right hand retains substantial function. For example, he retains a significant advantage with grip strength and power in his right wrist and hand in comparison to the left.[75] I find the organic TFC tear is smaller than on the left side.[76] He has not had any surgery to the right side. It is his non-dominant hand. Overall, and given the treating doctors’ notes referred to above at paragraphs 32 to 34, the doctors have recorded that his pain substantially subsided after 2018. I consider that to be the accurate picture. It will be apparent from my findings above that I do not accept Mr Haris’ evidence as to the impairment consequences sustained as a result of the right hand injury to be accurate and I do not accept that evidence.
[75]DACB 14, 19, 24 and 30
[76]See Mr Tham
42I will deny Mr Haris’ application in respect of his right wrist and hand condition.
The psychiatric injury
43Mr Haris’ claim in this regard was based on a report of Dr Takyar, a medico-legal psychiatrist, who provided a report dated 3 February 2023. Senior Counsel for Mr Haris submitted that, as there was no answering medical material from the VWA as to the conclusions reached by Dr Takyar, the Court was bound to accept his ultimate opinion that Mr Haris has an adjustment disorder with anxiety and a major depressive disorder,[77] and, furthermore, has no “realistic capacity for employment given his current psychiatric symptoms”.[78] It must be first noted that the Court is not obliged to simply adopt the opinion of Dr Takyar as to these two issues. Rather, the Court must consider all of the evidence and make its own determination. There are a number of reasons why the opinion of Dr Takyar cannot be accepted. The first arises by reason of the admixture of the symptoms arising from the assault and those which are then said to arise as a result of the workplace injuries at S M Interiors in 2014. Mr Takyar’s opinion is expressed at page 10 of his report. He opined: “[h]e did not think he was depressed before the injury but the history suggests that he had anxiety”.[79] Subsequent to the subject work injury, he opined that there has been an aggravation of his anxiety. He was not sure what the severity was like before the injury, but he felt it was worse after the work injury and stated that, currently:
“… Mr Haris presents with anxiety for around more than half his waking week at a moderate grade, with associated muscle tension, irritability and restlessness (the latter two are contributed to both by pain and anxiety), physiological anxiety symptoms and fatigue, along with sleep and concentration difficulties”.[80]
[77]PACB 52
[78]Ibid
[79]PACB 51
[80]PACB 52
44On this basis, he went on to make the diagnosis referred to above of Major Depressive Disorder and an adjustment disorder. The difficulty is that there has been no separating out of the aggravation caused by the work injury at S M Interiors. This is a necessary requirement for the demonstration of serious injury arising by reason of the psychiatric injury sustained at S M Interiors.[81]
[81]Petkovski v Galletti [1994] 1 VR 436
45Second, it is to be noted that Dr Takyar’s opinion is the first psychiatric opinion in nine years. Neither Mr Haris’ treating doctors or treating specialists have, at any time, referred him for psychiatric treatment. It is noteworthy, then, that Dr Takyar considers Mr Haris would benefit from referral to a consultant psychiatrist, medication and counselling. It is his opinion that, if such occurred, then there might be slow and gradual improvement in his condition.[82] This all strongly suggests that the psychiatric injury might well not have stabilised. On this basis, I cannot find that the claimed psychiatric condition is permanent.
[82]PACB 53
46Third, and perhaps most important, Mr Takyar makes the bald assertion that Mr Haris has no realistic capacity for employment, given his current psychiatric circumstances. There is no reason set out for this. This significantly undermines the opinion. This is because there is no suggestion by his treating doctor, in 2017, that psychiatric illness prevented his return to work. Similarly, neither Dr Baynes, nor Dr Wyatt, considered there were any psychiatric impediments. Furthermore, Dr Awad considered physical symptoms, and not psychiatric ones, prevented a return to work. Mr Haris is currently on no medication and undergoing no psychiatric treatment. On this basis, it is hard to understand Dr Takyar’s opinion. I reject it.
47Lastly, it does not appear that Dr Takyar properly understood the level of Mr Haris’ recreational engagement over the last six months. He has no history of activities such as the trip to Robe in the motorhome, the various trips to Echuca or his ability to go jet skiing with friends. All of this speaks to a greater capacity for enjoyment and recreational pursuits than appreciated by Mr Takyar. Without a correct history, his ultimate conclusion can also not be sustained. On this basis, also, I would reject Dr Takyar’s opinion.
Mr Haris’ submissions as to loss of earning capacity
48Mr Haris’ submission is that he has no earning capacity at present, or for the foreseeable future, on the basis of the impairment of the left hand. It is an “all or nothing” case, in the sense that he submits he does not even have a partial capacity for employment. I reject this submission for the following reasons. First, Mr Haris is a relatively young man. He was thirty-five at the date of injury and is now only forty-four years old. He was born in Australia and is an English speaker. He finished Year 12 and though he said he is not good at English, he reads and writes English passably. He completed an apprenticeship and has run his own business. He has a long history and passion for cars and has, prior to his injury, bought, fixed-up and sold numerous cars.[83] All this suggests that he has more than a physical occupational capacity. This is proved by the fact he can run a business – which only stopped by reason of his assault ꟷ and the various car sales he has done. It is reinforced by the evidence he gave as to contemplating a business in caravan imports. His decision not to pursue this business was because of the unsatisfactory trade terms, not because he lacked the physical or mental capacity. Similarly, when it was put that he could learn how to sell caravans, he accepted that.[84] This encompasses the fact of technical knowledge and workplace skills, such as some computing. I accept that this does not mean, by itself, he has the capacity to perform that role, however it does mean he can learn the basic skills of the position. However, as with many of the suggested employment options, Mr Haris retreated to a position of stating that he has no computer skills and was, therefore, incapable of doing these jobs. I do not accept that submission, because it is inconsistent with his evidence of contemplating an import caravan business. In the modern age, it can be assumed this, necessarily, would have involved some computer work. It does not appear to have deterred him from that role. There is no reason why it should, then, pose a problem in other roles. This is also buttressed by the fact that, in cross-examination, he accepted that, if his case was successful, he would like to buy a carwash business, and then employ someone to supervise it.[85] A further point to note in this regard is that Dr Thai, his treating doctor, considered jobs which involved a degree of computer skills to be within his capacity, for example, retail sales and retail assistant. This is also the opinion of Dr Baynes – though his report predated the second surgery and must be read in that light. It is also the opinion of Dr Wyatt, the occupational physician. Her reports implicitly contemplate that Mr Haris is able to learn and cope with the computer requirements of each job under the title “digital literacy”. The only contrary opinion on this point is Dr Awad, the occupational physician. In his report, he states:
“… When then taking into consideration, his skillset, his lack of qualifications and lack of transferrable skills, he is unlikely to find suitable employment in a competitive market. On balance he is unlikely to be capable of any employment in a meaningful and consistent manner.”[86]
[83]Affidavit of Lorraine Haris sworn 11 April 2023 commencing at PACB20
[84]T23, L13
[85]T66, L9
[86]PACB 38
49Arguably, Dr Awad is applying the incorrect test when considering what constitutes suitable employment, because he is focused on employability. As Forbes J explained in Akbari v Victorian WorkCover Authority,[87] the focus must be on whether the worker has something to sell in the employment market, not that he be successful in selling that asset.
[87][2022] VSC 84
50If I were wrongly interpreting Dr Awad’s opinion and focused, instead, on only the second sentence quoted above, and it was considered he had applied the correct test, I would still not accept his opinion for the following reasons. First, in his section titled “work capacity”, he writes:
“… All forms of employment would require him to use his hands to perform … tasks and the reality is that he has no capacity to do this”.[88]
[88]PACB 38
51By itself, this statement cannot be accepted. There is no other evidence which suggests that he is completely unable to use his hands. In fact, Dr Baynes and Dr Wyatt, both occupational physicians, do not accept this. More importantly, Dr Thai, his treating doctor, specifically addressed his capacity to return to work and considered that he was able to perform a range of positions. Associate Professor Love defines this as observational work. He clearly is of the opinion that there is some capacity for work. This is entirely consistent with Mr Haris’ own assessment of his capabilities in the carwash business and the caravan import business. Dr Awad’s opinion stands in complete contrast to this body of evidence and cannot be accepted.
52Next, Dr Awad stated:
“… He should be permanently medically restricted from undertaking any task that involves repetitive extension or flexion of the wrist, repetitive twisting, gripping, lifting more than 2 kg or and (sic) forceful movements through his wrists ….”[89]
[89]PACB 38
53This second part of Dr Awad’s opinion can be accepted as being in conformity with the majority of other medical opinions. Dr Baynes, Dr Wyatt and Dr Thai, all accept that he cannot return to his old physical job, but that he has capacity to do some other work.
54More importantly, however, Dr Awad does, in no way, grapple with jobs which have been suggested which do not involve such repetitive, forceful work over 2 kilograms. For example, when it comes to assessing each of the jobs individually, Dr Awad makes very bald statements as to why they are inappropriate. For example:
“Retail Assistant …
Not appropriate”.[90]
[90]PACB 41
55No reason is given for this opinion. This undermines his conclusion on this point. Presumably, it is founded on his comment that Mr Haris cannot use his hands in any way occupationally. I have set out why this cannot be accepted above. Turning away from that example to the specifics of this case. Specifically, it was put to Mr Haris that he could perform caravan or car-sales work. This was a position identified by the vocational assessor from CoWork Pty Ltd (“CoWork”).[91] It was considered appropriate by Dr Wyatt.[92] It would have been more than useful if Dr Awad was provided with the CoWork report, which identified the caravan sales job, and Dr Wyatt’s report, which considered it suitable. He does not appear to have been furnished with it and this undermines his ability to provide relevant evidence on this point. This is another reason why I prefer Dr Wyatt’s opinion to that of Dr Awad.
[91]DACB 163
[92]DACB 188
56Mr Haris’ evidence in respect of many other positions was that he simply did not have the computer skills necessary to perform them, for example, the retail assistant role. To this, the VWA countered that, given Mr Haris’ age, intelligence, schooling and experience in running a business, he could be retrained to perform such tasks as a weighbridge operator or a sales assistant. The VWA based their argument on s325(2)(g) of the Act, which casts onto the Court an obligation to take into account what Mr Haris would have been able to earn in suitable employment, had he made reasonable attempts at rehabilitation.[93] In this case, Mr Haris puts his loss of earnings claim on the basis that he cannot return to work at all. The relevant medical opinions I accept, being that of Dr Baynes, Dr Thai and Dr Wyatt, all opine that he could return to work on a full-time basis in a caravan sales role, weighbridge operation or retail assistant role. I would accept that evidence. Necessarily, this involves some on-the-job retraining, which they all implicitly consider he is capable of. Section 335(b)(i) of the Act specifically casts the onus onto the worker for the purposes of demonstrating a loss of earning capacity, to prove an inability to be retrained or rehabilitated, or to undertake suitable employment. There is no such evidence put before the Court by Mr Haris to prove that he has such an inability. As I have set out above, Mr Haris repeatedly stated he simply cannot perform computer tasks. Given his age, education and experience, and the view I have taken of the unreliability of his evidence of impairment consequences, use of medication, recreational activities, the level of impairment of the right hand, and the overall level of impairment of the left hand, I do not accept this evidence. On this point, I find he has not discharged his onus.
[93]T122, L13-22
57I consider that Mr Haris has the capacity to perform retraining on computers necessary to fulfil the roles identified.
58It was submitted that the left hand and right hand injuries separately resulted in a loss of earning capacity because any repetitive work would result in an aggravation of pain and symptoms. In accordance with Ryan v The Grange at Wodonga Pty Ltd,[94] it was submitted this would result in a determination of total loss of earning capacity. I do not accept this argument on the basis of the opinion of Dr Baynes, Dr Thai, and Dr Wyatt. I also reject the argument, as I do not accept that Mr Haris’ right hand became aggravated as he has deposed. I have set out above why I consider his evidence as to the impairment consequences on his right side, in particular, cannot be accepted as accurate and reliable. In accepting the opinions of Dr Baynes, Dr Thai and Dr Wyatt, I also accept that he can perform these roles in a settled and consistent way. This was the specific evidence of Dr Baynes and Dr Wyatt and not demurred from by the treating doctor.
[94][2015] VSCA 17, at [69]
59To conclude on this topic, I find that Mr Haris has a capacity to work full time in suitable employment. His claim for a determination that he has sustained a loss of earnings of the requisite degree must be denied.
Conclusion
60In conclusion, I determine that Mr Haris has a serious injury for pain and suffering only in respect of the left hand injury. I will dismiss Mr Haris’ application for a loss of earning determination for the left hand injury. I will dismiss Mr Haris’ claims for both his right hand injury and the claim for a severe mental or permanent severe behavioural disturbance or disorder.
61I will hear the parties as to costs.
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