Hashimi v Victorian WorkCover Authority
[2023] VCC 1218
•19 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02786
| ALI HASHIMI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 July 2023 | |
DATE OF JUDGMENT: | 19 July 2023 | |
CASE MAY BE CITED AS: | Hashimi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1218 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – work injury
Catchwords: Serious injury – loss of earning capacity – physical injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:
Judgment: Leave granted to the plaintiff to pursue a common law claim for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey with Ms A Tate | Arnold Thomas & Becker |
| For the Defendant | Mr M Clarke | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1This is a case with a very narrow focus. The plaintiff, Mr Hashimi, suffered injury on 29 May 2014, when he struck his left knee on the step of a truck while at work with Randstad Pty Limited (“Randstad”). It is accepted that this was a workplace injury. The case in this court began as an application for serious injury determinations under paragraph (a) and paragraph (c)[1] for both pain and suffering and loss of earning capacity. On the first day of trial, reliance on the paragraph (c) case was abandoned. The case proceeded under paragraph (a) for injury to the left knee, being the impairment of the left lower limb. At the time counsel stood up to open the case, it had been narrowed further. The defendant conceded there ought be a determination that the pain and suffering impairment consequences were “more than significant or marked” and at least “very considerable”. That left the paragraph (a) claim as to whether a loss of earning determination should be made as the sole dispute between the parties.
[1] Of the definition of ‘serious injury’ pursuant to section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
2The dispute was narrowed further during the hearing, because all parties agreed that Mr Hashimi is not able to perform his pre-injury duties as a truck driver. The parties agreed that he can only return to work in sedentary lighter work. On this point, there was also not much contest between the parties. Mr Hashimi deposed that, at the time of his injury, he was working between forty and fifty hours per week at $24 per hour, which equated to $1,200 gross per week. The defendant called no evidence to challenge this, nor did they cross-examine on this point.
3It is, of course, a question for the Court to determine what represents the correct gross average weekly wage in the three years before and three years after the date of injury that most fairly reflects his earning capacity.
4Clearing those matters which are not in dispute from the field of play, the following questions emerge to be answered in this trial:
(a) What is the figure that most fairly represents the gross income that he was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion, during that part of the period within three years before and three years after the injury, as most fairly reflects his earning capacity had the injury not occurred?
(b) Does Mr Hashimi have a capacity for employment?;
(i)if yes can that capacity for employment be exercised on a reliable and consistent basis; and
(ii)If yes, what would be the gross earnings per week of that exercised capacity?
5The evidence called in aid by either side was very brief. The defendant relied on two reports of Dr Mary Wyatt, an expert medico-legal consultant in occupational health, and a report from a vocational assessor at Nabenet. The plaintiff’s counsel relied on Mr Hashimi’s affidavits, historical psychological material of Ms Miriam Latif from 2016, and a medico-legal psychiatrist, Dr David Weissman from 2016. Otherwise, the plaintiff relied on reports of the treating doctor, Dr Nadir Nahem, and his treating surgeon, Mr Ikram Nizam. He also relied on medico-legal orthopaedic opinion from Dr Iain McLean, occupational therapist, Mr Stephen Woolley and vascular surgeon, Dr Peter Blombery.
Relevant History
6As the matters in dispute between the parties were so narrow, it is only necessary to briefly relate the history of this matter.
7The following is taken from two affidavits sworn by the plaintiff on 11 October 2021 and 6 July 2023, respectively.[2] The plaintiff was born in May 1983 in Russia, but is of Afghan background. He came to Australia in 1999. He completed Year 10 and then worked at McDonald's. He began a boilermaker’s apprenticeship shortly afterwards, but did not complete it. He moved to the United States and assisted his uncle with managing a restaurant. He then returned to Australia and began working with Altus Traffic (“Altus”) in traffic management. In 2012, he sustained injury to his left knee while working with Altus. No attention needs to be paid to this, given the defendant concedes that there was an injury sustained at work in May 2014 and that that injury remains extant as at the date of trial. In any event, the plaintiff returned to his pre-injury duties in June 2013.
[2] Exhibit P1; Plaintiff’s Amended Court Book (“PACB”) 6 at paragraph [6] and [13]
8He commenced working with the defendant, Randstad, on 30 September 2013 on a casual basis, as a truck driver. His evidence was that he worked forty to fifty hours per week, earning $24 per hour. His evidence is that the work was often physical and he was required to move pallets from the back of his truck using a pallet jack and onto customer loading docks. He deposed that he often was required to lift heavy boxes weighing anywhere between 20 and 30 kilograms. Oftentimes, the back of the truck was loaded by forklift, but he would have the responsibility for fastening the side curtains and securing the load. He would drive a heavy-rigid truck. It was accepted that, on 29 May 2014, as he went to climb into the truck, he slipped while holding a loose handrail and struck his left knee. The blow caused a laceration and swelling in the left knee. He went to his treating doctor and had the cut glued and was placed on crutches. The medical evidence can be largely skipped over, given the agreement between the parties as to the fact of injury and its consequences. Bearing that in mind, the plaintiff, having seen his treating doctor, was referred to an orthopaedic specialist. He had the first of three surgeries in January 2015, being an arthroscope which involved removal of a foreign body, and debriding of loose cartilage. He ceased working for the defendant in May 2015.
9Around this time, he was referred for psychological treatment with Ms Latif. He also transferred treating doctors and began to see Dr Nahem. He referred the plaintiff onto an orthopaedic specialist, Mr Nizam. MRI scanning revealed a medial meniscus tear and he had a second arthroscopy performed by Mr Nizam in April 2017. He continued to complain of pain and returned to see Mr Nizam.
10He then deposed that his weekly payments of compensation were terminated. In an endeavour to make some money, he purchased a ute and commenced work delivering pallets. He deposed that he did this work on and off over a period of about fifteen months but ceased due to his left knee problems. In his first affidavit, he deposed to ceasing that work in 2019.[3] He gave evidence this was with Swift Transport Services and he worked less than forty hours per week when he did that work. He advised that it was work involving lifting small boxes off the back of a ute tray . He described those boxes as being small.
[3]PACB 10 at paragraph [36]
11His condition did not improve and he returned to see Mr Nizam. A third surgery was performed in December 2019. After that surgery, he was prescribed Oxycontin and Lyrica, and also took Panadeine Forte. For his mental state, he has been prescribed Effexor at a dose of 300 milligrams a day, which he continues to take.
12In cross-examination, he was asked about work that he did after the surgery in December 2019. This was in relation to paragraph 21 of his second affidavit.[4] That evidence was of working as a process worker in a pie-making factory for about a month or two. In cross-examination, he said he obtained the job through JobSeeker and described it as labouring work.[5] He gave evidence, in cross-examination, that he worked there only a few months and then left because of his knee pain, caused because he had to lift boxes of about 25 kilograms.[6] Counsel for the defendant then took him to his tax return summary, which showed that he actually then worked for a company called Victorian Metal Traders in the financial year 2020-2021. This was not disclosed in his affidavit. He gave evidence that he obtained a job driving an industrial vehicle through his brother-in-law. He would drive the truck to pick up industrial-sized bins containing scrap metal.[7] He gave evidence that he stopped this work because he was getting left knee soreness. The taxation summary shows earnings of only $3,862, which seems to indicate only a short period of employment there.
[4]PACB 15
[5] Transcript (‘T’) 13, Line (‘L’) 22
[6] T 13, L 27-31
[7] T 14, L 16-27
13He was also cross-examined about courses that he had done through TAFE, being a certificate II in automotive electronics and air conditioning.[8] His evidence was that he had done this over a few months online, but that he did not apply for such jobs because they involved heavy lifting of cylinders. He had not anticipated this being a part of the job, and when he found out, he realised that he could not do that task. He was then pressed about whether he had done other courses and he gave evidence that, as a Centrelink recipient, he only had an entitlement to one free government course and could not afford doing any others. He gave evidence, in cross-examination, about submitting other job applications last year. When pressed, he was not able to recall what sort of jobs he had applied for. He accepted, in cross-examination, though, he could do some work. When pressed about why he had not submitted any recent job applications, he gave evidence that he was worried that he would get knocked back again.
[8] T 14, L 14-15
14He was taken to Dr McLean's report dated 10 October 2022[9] and asked whether he could do computer programming, given that he has an interest in computers. In reply, he gave evidence that he had watched YouTube videos of others building computers and had taken this up as a hobby. He confirmed that he had no qualifications or experience in computer programming.
[9]PACB 121
15In re-examination, he confirmed that he felt, while he had some capacity for work, he thought he could only do light duties for a couple of hours every few days.[10]
[10] T 23, L 13-15
16He last saw Mr Nizam in April 2023. Mr Nizam suggested a cortisone injection for the worsening symptoms, which was conducted. It did not relieve his symptoms.[11] According to his affidavit evidence, the plaintiff continues to take Panadeine Forte as necessary and Effexor at 300 milligrams once per day. He continues to wear a support bandage at all times about his left knee. He uses Deep Heat and heat packs regularly.[12] Broadly, because this evidence was not challenged, I find that he struggles to walk for long distances or do work which involves him bending, kneeling or squatting. It is accepted that he cannot lift heavy weights, such as carrying boxes.
[11]PACB 14 at paragraph [13]
[12] PACB 15, paragraphs [16] to [18]
17It was suggested by Mr Nizam that he may benefit from physiotherapy but Mr Hashimi has previously trialled physiotherapy with limited benefit.
Questions for resolution
18Turning, now, to answer the first question:
(a) What is the figure that most fairly represents the gross income that he was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion, during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity, had the injury not occurred?
19I find this figure to be $1,080 gross per week. I come to make this finding given the plaintiff’s evidence in his first affidavit referred to above. While there is a range of hours worked, being forty to fifty hours, I accept that, for a man with a young family, he would have endeavoured to work the most hours he could. This suggests he would have taken all those hours offered to him as a casual worker. I accept he would have taken up that offer. I accept that some weeks he could have worked more and some weeks less. Overall, I am to assess the amount that most “fairly” reflects earning capacity. I have factored this in coming to a figure of 45 hours. I further note that I have to assess what he was capable[13] of earning in the three years before and, particularly, the three years after, the date of the injury. I consider at least there would have been a modest increase in hourly earnings after 2014, and while I cannot be precise, I accept that, even if he worked less hours, on average, there would have been a modest hourly increase, such that he would have earned $1,080 gross per week. The 60 per cent figure is $648 gross per week.
[13] Emphasis added
20As to the second question:
(b) Does the plaintiff have a capacity for employment?
21I find that the plaintiff does have a capacity for employment. I make this finding given his evidence in cross-examination that he does have a capacity for employment. This is also the opinion of his treating specialist, Mr Nizam and of Dr Wyatt. The real issue is as to what is the content of that capacity. In Mr Nizam's opinion, the capacity is:
“… If anything, he might be able to do part-time work at a desk. but only a few hours a day three to four hours a day maximum and two to three times a day [I assume this is “week”].[14]
[14]PACB 70
22In contrast, Dr Wyatt’s opinion is that the plaintiff has the capacity for work. She described it in the following terms:
“… I see him as capable of working full-time, with some modest limitations in work activities, as described above. He presents to be fit for a broad range of factory based tasks, machine operator work, assembly, or traffic management with appropriate training.”[15]
[15]Defendant’s Court Book (“DCB”) 102
23Dr Wyatt agreed with the suggestion of Nabenet that the plaintiff could perform a role as a service advisor, a customer sales and service assistant in the automotive industry, a valet parking attendant, and as a weighbridge operator.[16]
[16]DCB 114-116
24I do not accept Dr Wyatt's opinion for the following reasons.
25First, she has only seen the plaintiff on two occasions in April 2022, and then again in May 2023. The plaintiff’s condition has been extant since 2014, a considerable period of time during which she had little to no involvement with his condition. This contrasts with both his treating doctor and treating specialists, who have had long-term involvement with him during the investigation, treatment and rehabilitation phases. This gives them a unique longitudinal insight into his condition. An example of this can be seen in Mr Nizam’s reporting. From his first report, he begins commenting upon the impact the injury is likely to have on the plaintiff’s occupational capacity[17] in December 2016,[18] September 2017,[19] April 2020 and lastly April 2023.[20]
[17]PACB 63
[18]PACB 65
[19]PACB 67
[20]PACB 70
26Second, Mr Nizam occupies a particular position of knowledge, given that he was the treating specialist who conducted two surgeries to examine the state of the knee. That is knowledge and experience of the plaintiff’s condition which Dr Wyatt simply does not have and gives Mr Nizam a particular advantage. As a result of that, I accept his reporting and opinion over Dr Wyatt’s. When read together, the reporting of his opinion provides sound reasons for his ultimate conclusions.
27Third, Dr Wyatt’s reporting has some curious features. It tends to suggest her opinion is unsound. There were two examples of this. The first occurs in her second report,[21] where she records that the plaintiff has had his driver’s licence suspended by VicRoads as a result of his general practitioner's (“GP”) opinion, due to his depression. She then records a conversation with the plaintiff about family and friends taking him to the doctor for any necessary appointments. The difficulty with this history is that the plaintiff denies he has lost his licence, or that friends and family need to take him to appointments.[22] Furthermore, the reports of his GP make no mention of the loss of licence at all. It appears that Dr Wyatt’s history is completely incorrect. The second point about Dr Wyatt 's report is that she has formed an opinion that the plaintiff’s knee injury is not materially contributed to by the 2014 incident. That is a position not accepted by the other medical practitioners in this case, being Dr Nahem, Mr Nizam, Mr McLean or Dr Blombery. Dr Wyatt 's opinion is clearly an outlier on this point. It suggests that she has not properly appreciated the long-term difficulties the plaintiff has had and in my opinion indicates she has not appreciated the severity of the condition on his work capacity. This is because the other opinions rely on the impact of the injury on his work capacity to link it to the work at Randstad. It is true that she is the only occupational physician to opine in this case as to work capacity, however I consider her opinion is undermined by the incorrect history taken, her unique position on causation, and also the difficulties that she had in conducting the examination.
[21]DACB 98
[22] PACB 14, paragraph [12]
28Finally, I consider the fact that the plaintiff has endeavoured to return to work with his own ute at the pie factory and also driving for Victorian Metal Traders, to be good evidence that he has endeavoured to work, but simply faces physical barriers. Dr Wyatt does not seem to acknowledge these facts, given that she recommends he is presently fit for factory-based tasks with no weight limits. The only restriction she places on him is his inability to return to truck driving because of the requirement to get in and out of the truck, and, further, a restriction on work involving repeated climbing of steps, kneeling or squatting, or walking for more than 5 kilometres at a time. The work that he did at the pie factory had none of these requirements, but after his attempt at work there, he quite clearly could not do that job. Her failure to account for these matters further undermines her opinion.
29I put aside Dr Wyatt's opinion, for the reasons above. I now turn to consider the other medical evidence as to his capacity.
30Counsel for the defendant submitted that Mr Nizam’s report could not be accepted because he was not an occupational physician. I reject that submission because, as I have set out above, Mr Nizam is in a particular position of authority to opine on the plaintiff’s occupational capacity and has, in fact, been doing so over the course of his treatment of the plaintiff. His opinion is also well supported by the opinion of the treating GP on 29 August 2016[23] and 29 May 2023.[24] The defendant tried to draw some support for its position from the report of Dr McLean, who opined that there was the potential for return to sedentary work.[25] When looked at, though, in his opinion, there currently was no capacity for work, but it was only a theoretical capacity in the future.[26] I do not consider this supports the defendant’s position. Similarly, the defendant sought to draw upon the opinion of Dr Blombery.[27] I consider Dr Blombery to have expressed a hopeful opinion as to the future, not as to the current state of capacity, and I do not consider his opinion supports the defendant’s position, or works contrary to the position of Mr Nizam.
[23]PACB 52-55
[24]PACB 56 and 60
[25]PACB 128
[26]PACB 128
[27]PACB 159
31The defendant submitted that Dr Nahem also gave some support for its position because he expressed an opinion that the Plaintiff’s condition was not stabilised.[28] I do not accept that is Dr Nahem’s opinion on a clear reading of his conclusion expressed in his report in answer to question 10.[29]
[28]PACB 60
[29]Ibid
32The defendant submitted that Dr Nizam and Dr Nahem’s opinions were also undermined as they did not have the history of the pie factory, metal traders work or of job applications. Dr McLean and Dr Blombery similarly did not have this history. I do not consider this to be of much moment because that history represented the proof of their opinions as to his inability to do factory work or return to truck driving. It is accepted by all practitioners that such work is beyond him. There was no evidence of what jobs were applied for. That deficiency in history taking then has no material impact on their opinion.
33It was submitted that the plaintiff’s evidence was less than candid given the failure to disclose the metal traders work and to recall the jobs he applied for. This can be accepted, but really this was confined to those topics. Beyond that I accept the plaintiff as a witness of truth.
34The defendant further submitted that with the plaintiff’s ability to retrain and interest in computers he was able to return to work in computer programming. This seems a real stretch considering his only experience of computers is from YouTube. I consider this pure speculation as to capacity. I put it aside.
35The defendant submitted that the real reason for the limited capacity the plaintiff experienced was a result of a range of psychological and emotional factors which prevented him working. An example of this was the fact that he slept most of the day. It was suggested, broadly, that this was because of the effect of the psychological problems and medication he was taking. The plaintiff’s evidence in cross-examination, and then re-examination, was that he slept during the day because of the pain associated with his knee. I accept that evidence. Given that I have accepted Mr Nizam’s opinion, I consider that it is the physical issues associated with the plaintiff’s left-knee injury that has reduced his occupational capacity to such an extent that he is only able to work extremely limited hours and days. This is fortified by the reality of his history given he had to cease with Randstad, the pie factory and the metal traders because of his physical problems.
(b)(i) Can the plaintiff’s capacity for employment be exercised on a reasonable and consistent basis?
36Given the reasoning above, I reject the submission that the plaintiff could work full-time hours on a reliable and consistent basis.
(b)(ii) What would be the plaintiff’s gross earnings per week of that exercised capacity?
37Overall, accepting, as I do, Mr Nizam’s opinion as to work capacity, such work could only ever be for four hours per day, three days per week. Taking the defendant’s case at its highest, being that the plaintiff could work as a weighbridge operator earning $50 per hour[30] over twelve hours per week, this equates to a figure of $600. As I have found above, the plaintiff’s gross per week earnings are $1,080. The 60 per cent figure is $648. Even on the basis the plaintiff obtained a job as a weighbridge operator working four hours per day, three days per week, he could only earn less than the 60 per cent figure. As a result, the plaintiff must succeed.
[30]See DCB 117 for the wage of a weighbridge operator of $1186 gross per week over 38 hours per week equates to a gross hourly rate of $50 per hour
38For these reasons, I will find for the plaintiff, and I make a determination that he has sustained loss of earning capacity which is serious, in that the injury to his left knee has been productive of a financial loss of 40 per cent or more.
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