Jantzen, Anton James v AME Systems Pty Ltd and VWA
[2009] VCC 1575
•8 December 2009
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-09-01360
ANTON JAMES JANTZEN Plaintiff v AME SYSTEMS PTY LTD First Defendant And VICTORIAN WORKCOVER AUTHORITY Second Defendant
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JUDGE: HIS HONOUR JUDGE LACAVA WHERE HELD: Warrnambool DATE OF HEARING: 30 November 2009 and 1 – 3 December 2009 DATE OF JUDGMENT: 8 December 2009 CASE MAY BE CITED AS: Jantzen, Anton James v AME Systems Pty Ltd & VWA MEDIUM NEUTRAL CITATION: [2009] VCC 1575
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application reliant upon sub paragraphs (a) and (c) of section 134AB(37) of the Accident Compensation Act 1985. Evidence of serious injury physically based but insufficient evidence of severe psychiatric or psychological condition or disorder – applications granted.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr D. Brookes SC with Stringer Clark Mr N. R. Bird For the Defendants Mr P. Scanlon QC with Lander & Rogers Mr P.B. Jens HIS HONOUR: Background 1 This is an application which relies upon parts (a) and (c) of the definition of “serious injury” in sub-s.(37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is, permanent serious impairment or loss of a body function or permanent severe mental or permanent severe behavioural disturbance or disorder. The body function relied upon is the right elbow.
2 The claim by the plaintiff instituted by originating motion seeks leave from the Court pursuant to sub-s.(16)(b) of s.134AB of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity. The particulars of injury pleaded as at 4 August 2009[1] are: severe and chronic right elbow/arm pain; chronic entrenched right epicondylitis; loss of strength and movement of the right elbow joint/arm; suicidal ideations; severe depression; balance disturbance; anxiety; adjustment disorder; nervousness.
[1] PCB 21-22
3 The particulars of injuries also pleaded “severe diverticulitis” and other related matters,
however Senior Counsel for the plaintiff in opening informed me that those particulars were
not relied upon[2].
[2] Transcript page 1 line 19
4 Mr Brookes SC with Mr Bird of counsel appeared on behalf of the plaintiff. Mr P.
Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendants.
5 The following evidence was adduced during the hearing: the plaintiff swore two affidavits and was cross-examined. The plaintiff’s first affidavit was sworn on 28 November 2008. The second affidavit was sworn on 24 November 2009; the plaintiff tendered the following evidence:
•
the Plaintiff’s Court Book (“PCB”) pp.9-15, 21-21, 23-27, 28-81 inclusive together with a copy of a County Court summons issued on 20 October 1987 with attached Statement of Claim (Exhibit A), and a letter dated 3 August 1993 from Messrs Blake Dawson Waldron Solicitors to Switzerland General Insurance Company Limited (Exhibit B);
•
the plaintiff also tendered an affidavit from the plaintiff’s son, Kahn Jantzen, sworn 1 December 2009 and Kahn Jantzen was called to give sworn evidence and was cross-examined;
•
the plaintiff’s general practitioner, Dr Neil Livingston, gave sworn evidence and was cross-examined.
6 The defendants tendered the following evidence:
• the Defendants’ Court Book (“DCB”) pp.12-17 inclusive and pp 55, 57-63 inclusive and 70-71 inclusive.
7 The plaintiff’s also tendered pp.18-28 inclusive and 31-43 inclusive from the Defendant’s Court Book (Exhibit D).
8 In giving consideration to this application I have considered all of the evidence adduced by the respective parties.
Background history
9 The plaintiff was born on 4 January 1956 and is approaching his 54th birthday. He was
adopted as an infant and attended technical school until aged 15. He left school and completed an apprenticeship in a butcher’s shop and worked in the butcher’s shop for a couple of years thereafter and then had various jobs at abattoirs and meat establishments. Later he worked as a handyman, truck driver and doing farm work.[3]
[3] PCB 9
10 The plaintiff commenced employment with the defendant AME Systems Pty Ltd on or
shortly after 8 April 1997.[4] In his first affidavit the plaintiff was incorrect in stating that he commenced employment in April 1999. This is not significant, however for reasons which will become apparent later the plaintiff’s recollection of dates is not clear.
[4] DCB 70-71
11 When the plaintiff was cross-examined he was asked about his application for
employment. The questioning raised matters of credit but also went to factual matters by way of background which are important to understand in the context of this application. In his application for employment the plaintiff was asked:
Question: “Do you suffer from any disability or condition
whatsoever that may affect your employment?”
Answer: “No.” Question: “Have you ever been involved in an accident?” Answer: “No.” Question: “Have you ever claimed WorkCare?” Answer: “No.”
12 The claim form also sought particulars of “spare time interests and hobbies”. The
plaintiff inserted the words “gardening, football, cricket”.
13 It transpired in the evidence that the information supplied by the plaintiff in his
application for employment was not correct. In fact, the plaintiff had been injured in employment in approximately 1986 when he was struck by a carcass at an abattoir. He suffered a low back injury and was subsequently diagnosed with also having injured his cervical spine resulting in a two level cervical fusion in approximately 1993. The injury to the cervical spine was diagnosed late as being attributable to the 1986 work related accident.
14 The plaintiff was off work on compensation from the time of the accident in 1986 until
approximately 1993 when his compensation was terminated and thereafter he was assessed as qualifying for a disability pension and he remained on a disability pension until such time as he commenced work with the firstnamed defendant in early April 1997. In cross-examination the plaintiff frankly conceded that the application form was false, however he said he was desperate for a job and wanted to get it. I accept that explanation.
15 There is a lot more to the background and medical history of the plaintiff which is
relevant and to which I shall later refer. It is sufficient at this time to note that, after the plaintiff commenced his employment with the firstnamed defendant in April 1997, he had a good work record with the firstnamed defendant up until the time that he was injured during the course of employment with the firstnamed defendant in early December 2002.
16 At that time the plaintiff was working pushing rubber plugs into equipment for the
Australian Defence Industry using a tool for that purpose which required him to force the plug down into position and to turn it in a twisting action. He was doing this work repetitively for a period of two days when he developed severe right elbow pain. The following day he reported the injury to the first aid officer and was referred to a physiotherapist. He also wore a tennis elbow splint. The plaintiff planned to go on holidays shortly thereafter and hoped that the injury would improve over the holidays but it did not. He consulted with his general practitioner who prescribed anti-inflammatory medication from which he says he suffered side effects and was given local injections. In March 2003 he was referred to a surgeon Dr. Bourke who treated him with conservative measures initially with recommendations of physiotherapy and exercise. This evidence is not challenged and I act on it.
17 The pain in the plaintiff’s right elbow persisted and he became upset because of the
chronic pain and the way it was disturbing his lifestyle. He attempted to go back to work in April 2003 and was performing light office work duties. He felt hopeless and was having difficulty doing such tasks as writing. He says he was in constant pain. Eventually he returned to his surgeon, Mr Bourke, who recommended that the plaintiff undergo surgery to the right elbow which was performed on 20 August 2003.[5] That evidence is also not challenged.
[5] PCB 10
18 The plaintiff did not obtain any benefit from the surgery to any great extent and he
continued to suffer from ongoing right elbow pain with loss of strength. He was referred for ongoing exercises and physiotherapy and then to a pain management clinic in Geelong. He was also prescribed other medications, including Zoloft for depression, Gabopentim and Paxam. He claims that the concoction of the medication made him feel disoriented and spaced out and his balance was disturbed and he was admitted to the Geelong Hospital for two weeks for investigations. He was prescribed sleeping medication but this left him feeling hungover. He claims to have continued to require ongoing medical treatment throughout 2005, including a prescription of Dothep and he was taking Panadol and aspirin. He continued to receive treatment for his elbow and for depression. He claims that the elbow pain persists.[6]
[6] PCB 11
19 In his first affidavit the plaintiff says that he suffers from ongoing symptoms in the form of
chronic pain in the right elbow and arm and loss of strength of the right arm. He says that he has difficulty in lifting other than lightweights and the pain extends into his fingers and he has difficulty sleeping all the time because of the pain which he says is constant and, as a result, he is not able to do a great deal with his right arm at all.
20 In addition to the physical consequences, the plaintiff says that he received psychiatric
treatment in hospital and has been placed in Ballarat and Beaufort Hospitals because of attempted suicides which were serious attempts. He says that he has been unable to work since 2003 and when he last worked he was earning $480 net per week. At the present time he is in receipt of a disability pension from the Department of Social Security.
21 In his first affidavit the plaintiff deposed, inter alia:
“As a result of the injury to my arm there are many activities which I now have great difficulty in performing and I must be very careful what I do and I include in particular playing social tennis, cricket and football with my children.”[7]
[7] PCB 12
22 In cross-examination the plaintiff was attacked about this statement and others which
followed in his second affidavit. The basis of the attack was that what he had deposed to was false because he had in fact been rendered unable to pursue such activities as tennis, cricket and football as a result of the injuries which he had suffered back in 1986. In cross- examination the plaintiff frankly conceded that this was so. I have concluded that there was no deliberate attempt on his part to swear a false affidavit or to mislead the court. In my judgment, because the plaintiff has so many health issues preventing him from living a normal life for a man of his age, on a day to day basis he tends to blame all of his disabilities upon the injury to his right arm which he undoubtedly suffered in December 2002.
23 For reasons which I shall deal with a little later, it is clear that up until the time when the
plaintiff was injured in December 2002 he was managing to lead a relatively normal life with a minimum number of ongoing health issues, apart from excessive drinking, and it was the events of December 2002, and the consequences which followed, that have resulted in the plaintiff suffering from ongoing physical impairment with continual pain and other health- related issues described by Dr. Livingston in evidence I will later discuss as being of a psycho social nature.
24 In his first affidavit the plaintiff deposed that as a result of the incident in December 2003
and the injury to his right elbow, he has ongoing difficulty toileting and holding his right arm up to shampoo his hair or turning taps on with his right hand. He says that he is limited in the amount of gardening and lawn mowing that he can do because he finds the vibrations from the lawn mowing and attempting to perform such work increase the pain in his right elbow. He continues to suffer from loss of strength in the right arm and ongoing chronic right elbow pain.[8]
[8] DCB 12-13
25 Further, he says he suffers from ongoing severe depression and last had physiotherapy
treatment in about November 2007. He says the pain in his right elbow is so bad that it keeps him awake at night and that the pain is worse when he uses his right arm. He takes Dothep for depression and anxiety and suffers symptoms of dry reaching and he has suicidal ideations. His memory and concentration are poor.[9]
[9] DCB 13
26 The plaintiff lives alone and does not hold a driver’s licence and has not held one for
some time having lost his licence for a drink driving offence. That is not a consequence that can be attributed to the work-related accident. He is right hand dominant. He says that he grows a few vegetables in the garden but cannot use a shovel. He does weeding of the garden using his left hand. He has tried to perform many activities using his right hand and arm but finds it difficult and it increases his pain.
27 In his second affidavit the plaintiff deposes to not being able to do such menial tasks as
cutting vegetables or undoing bottles or jars or housework such as sweeping, vacuuming and cleaning the bathroom and showers. He has ongoing difficulty attending to his gardening. In his second affidavit the plaintiff deposed, inter alia:
“16. I have constant pain in the right arm and in particular in the right elbow. I find it painful and difficult to try and straighten my arm. Even though some days might be slightly better than others I do not think I can fully straighten it. If I knock my elbow the pain can be excruciating.”[10]
[10] PCB 25
28 When giving evidence the plaintiff tended to cradle his right hand and forearm area in
his left hand and demonstrated difficulty he has straightening out or flexing his right arm. He was wearing a brace on his right forearm and wrist at the time he gave evidence. He says that he misses the work that he was doing. He says that whilst he did not have the best work record he enjoyed his job. In evidence before me he said that the job was the best thing that ever happened to him and he obviously enjoyed the company of his bosses whom he said “they would do anything for me”.
The Statutory Scheme
29 The application relies upon the definition of “serious injury” contained in subsection
(37)(a) and (c) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function” or “permanent severe mental or permanent severe behavioural disturbance or disorder”.
30 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury, that is, an injury
which he suffered arising out of the course of his employment on or after 20 October
1999.[11](b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[12]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.[13]
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss
must be to the extent of 40 per cent or more both at the date of hearing and permanently.(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in section 5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
[11] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11[12] Barwon Spinners, at paragraph 33[13] Barwon Spinners at paragraph 117(i) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.[14]
[14] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[15]
[15] (1994) 1 VR 436
31.I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Medical Evidence
32.Dr Neil Livingston, general practitioner from the Beaufort & Skipton Health Service, gave evidence on behalf of the plaintiff and has provided three reports.[16] Dr Livingston’s evidence is important in the proceeding in a number of respects. Although he did not commence to treat the plaintiff until 16 August 2004, after taking over in the practice from the plaintiff’s previous general practitioner, Dr Naidoo, Dr Livingston when he gave evidence was able to refer to the Beaufort Medical Practice file and give evidence about the plaintiff’s health covering several years. The defendant’s case is, inter alia, that even if the plaintiff is now seriously injured and unable to return to his pre injury employment, that is not caused by the injury sustained whilst working for the first named defendant in December 2002 but is caused by injury sustained in the 1986 accident in any event. I have rejected that argument.
[16] PCB 41-43
33.It needs to be understood that whilst the case was opened by Mr Brookes on the basis that the serious injury claimed was both sub-paragraphs (a) and (c) of the definition of serious injury, Mr Brookes conceded, I think, in submissions that his strongest case was under sub- paragraph (a) and the claim under sub-paragraph (c) is perhaps weaker if only for the fact that the plaintiff is not presently undergoing any psychiatric or psychological treatment and that has been the case for some considerable period of time[17].
[17] Transcript page 239 lines 2-8
34.In his report of 19 October 2006[18] Dr Livingston recorded that the plaintiff “remains in chronic pain in his entire right arm which has led to other medical problems, namely depression anxiety, insomnia and alcohol abuse”. He went on to say that he doubted that the plaintiff would ever recover from this disability and would expect him to suffer from chronic lifelong right arm pain and he believed that the plaintiff would never work again.
[18] PCB 41
35. In a second report of 27 January 2009 Dr Livingston recorded:
“This man continues to have chronic pain in his entire right arm. This pain is very disabling to him and has a significant contribution to his depression and subsequent alcohol abuse. At present he is not receiving any active treatment to his arm as no treatment modalities have been shown to improve his symptoms. I believe he will suffer long-term pain and his prospects of employment are virtually zero. His unemployable situation is not related to his arm pain alone.”
36. In an update report dated 3 October 2009 Dr Livingston said:
“His right elbow injury causes him major incapacity, with chronic pain, inability to use his right arm for basic daily activity. It is my belief, that he will never work again as a result of his right elbow injury/disability. I believe he has no physical capacity to work (zero hours/week). This man has significant psychosocial disabilities which will permanently exclude him from working.”
37.In evidence before me the plaintiff indicated that he could not hold the Bible nor could he turn a page in the Court Book. When asked to turn the page he was forced to bend over in the witness box and to bring his head down to about the level of the rail of the witness box and level with the Court Book in order to turn the page. When asked about this in cross- examination Dr Livingston said that he thought that the plaintiff should be able to hold a Bible and he thought that he should be able to turn the pages in the Court Book. The plaintiff had said that he could not hold a pen and had difficulty holding a spoon. Dr Livingston thought that the plaintiff should be able to perform these basic functions with his right hand but added that if he did so there would be a consequence of discomfort[19]. He was asked by Senior Counsel for the defendants what was the anatomical basis for a referral of pain from the elbow to the wrists which would prevent him from performing tasks such as holding a spoon or turning the page in the Court Book. Dr Livingston said:
[19] Transcript 145
“There can be a nerve dystrophy that can be affected by the injury and/or the surgery that this fellow’s had that could lead to complications so it’s not necessarily a simple lateral elbow pain, it can be a more severe pain right throughout the whole arm.
Is there nerve damage?---I believe that there is evidence that he has some form of nerve dystrophy, yes. Where do you find that evidence – that’s a clinical assessment.”[20]
[20] Transcript 145
Dr Livingston was asked what the plaintiff’s range of movement of the right elbow was. He said:
“At the elbow it’s – I haven’t documented it recently but I would think that he has a limited extension which is full extension of probably to about 120 or 140 degrees, and his flexion probably up to about 60 degrees, but that’s from recall, not documented.”[21]
[21] Transcript 145
In cross-examination Dr Livingston said that apart from the injury to the right elbow and the ongoing pain and disability associated with it, that had been superimposed upon the plaintiff who suffers with chronic depressive illness and an anxiety disorder and social issues including alcohol abuse and bowel dysfunction. The plaintiff previously suffered from a significant alcohol abuse problem but for the last 18 months or so Dr Livingston thought that he had been drinking considerably less.[22]
[22] Transcript 147
In terms of ongoing treatment Dr Livingston said that the plaintiff was having ongoing physiotherapy to his right arm, although he had not made a referral. He said that was because there had been a referral made by others before he began treating the plaintiff. He said that every three months he provides a script for the plaintiff for the drug Prothiadene which is an anti-depressant.[23] Dr Livingston thought that the plaintiff’s anxiety and depression was intractable as was the plaintiff’s alcohol abuse and that his job as the plaintiff’s general practitioner was to try to get the plaintiff to function as well as he could. He agreed that the plaintiff did not have a treating psychiatrist or psychologist and that the plaintiff was otherwise only prescribed analgesics and Panadol and drugs of that nature for the pain in his right arm.
[23] Transcript 153
Dr Livingston was asked about a proposed return to work plan devised for the plaintiff in June 2004. Dr Melissa Viney, whose evidence I will discuss later, records the treatment given to the plaintiff in her report dated 2 January 2005.[24] Dr Livingston was asked about that report and he said this:
[24] PCB 40
“And if he and Dr Viney are urging a return to work and one that is not unreasonable, why not follow the advice and allow or encourage a return to work?---I can recall the actual time as it arose in August 2004 but at that time I didn’t believe that this gentleman was able to do any work.
Nothing?---Nothing.
So that the use he had, effectively – there was nothing he could do?---Nothing
involving his right arm.
Do you still maintain that he is incapable of engaging in any employment?---I
do.”[25]
[25] Transcript 159-160
Dr Livingston was asked whether or not the plaintiff could perform work at, say, a road construction site operating the “stop/go” sign for traffic during the course of the road works. Dr Livingston thought that the plaintiff could physically do that work but added, “I would like to go back to his psychosocial problems which I think would be counter productive in finding a fruitful employer”.[26]
[26] Transcript 160
A little later Dr Livingston was cross-examined as to whether or not the plaintiff could operate start/stop buttons using his left arm in a conveyor belt process. Dr Livingston said:
“This gentleman is on high dose anti-depressant medication which could affect his concentration, firstly. Secondly, I wouldn’t be able to confirm or refute whether he’s had any alcohol in the 24 hours before that but if those issues weren’t at play I dare say he could be involved in that. I think there are factors that would play against him being a fruitful employee. I think I’ve just said that.”[27]
[27] Transcript 161
Dr Livingston was asked about the plaintiff’s general health over the years 2005 to 2008. The plaintiff had a significant face, gum and tooth infection in May 2005. He had an abnormal liver function test on a number of occasions in 2005 and 2006. In April 2006 he suffered from profuse rectal bleeding over a three week period. In June 2006 he had a haemorrhoidectomy. In August 2006 a colonoscopy performed found a sigmoid polyp and mildly atypical tubular adenoma and alcohol-related liver function derangement. In October 2006 he was found to be suffering from chronic alcohol abuse. In December 2006 he was suffering from severe anxiety and depression. In August 2007 he was suffering from solar keratosis. In September 2007 a colonoscopy revealed banding of the haemorrhoids and he suffered from splenic flexure and sigmoid diverticular disease and he had a prolapse of the rectal mucosa. On 17 September 2007 he was diagnosed with a solitary rectal ulcer. On 25 April 2008 a pathology report revealed that he was suffering from chronic obstructive airways disease. Dr Livingstone agreed that all of these medical problems, and in particular the chronic obstructive airways disease, the diverticular abscess, the colonoscopy, the haemorrhoids, all of the matters that were referred to would have significantly affected his capacity for employment.[28]
[28] Transcript 165.
Dr Livingston agreed that had the plaintiff’s right arm been fixed in a straight position and not used over a long period of time there would be an appearance of wasting of the arm. He said that he had not seen any evidence of appreciable wasting of the right arm.[29]
[29] Transcript 172-173
Dr Livingston was re-examined and Mr Brookes who took him right back through the medical records of the Beaufort Medical Practice. The purpose of the re-examination was to demonstrate that in the years that the plaintiff was working with the firstnamed defendant, that is from April 1997 through until early 2003, despite the existence of the many problems that the plaintiff now has, in fact he had not been receiving a great deal of treatment in the time that he was working and that his medical complaints at that time were few. The evidence depicts a spiralling out of control of health problems since the occurrence of the injury to the right elbow. I will not set out all of the attendances which Dr Livingston was asked about between about July 1996 and January 2003 suffice to say that none of the attendances was for a major medical concern. The plaintiff had attended on about three occasions in 1996 for the treatment of an earache and a nodule on his lymph node but then there was a gap of some four years during which the plaintiff did not attend for medical treatment. That four years coincides with the first four years of his employment with the firstnamed defendant. In the year 2000 the plaintiff attended on a number of occasions for ear infections and other related matters and epigastric pain and diarrhoea. He was prescribed Serapax on 13 March 2001 for anxiety and in February 2002 for a bruised left knee and in late 2002 for the flu and a cough and a dental abscess. But apart from that, whilst the plaintiff was working for the first named defendant his attendance upon the Beaufort Medical Practice was limited. I accept the evidence that Dr. Livingston has given as to the plaintiff’s medical history and his opinion and prognosis as to the plaintiff’s current state of health and inability to work.
In my judgment, whilst there is no doubt that this man presently has what Dr Livingston describes a psychosocial problems which of themselves would prevent him from working, during the time when he was in fact working for the firstnamed defendant he did not suffer from these problems to an extent that he was unable to work. Having examined the evidence very carefully it is clear to me that most of the plaintiff’s presently existing psycho social problems in a practical sense were exacerbated by the physical injury to his right elbow in December 2002. At that time the plaintiff was, as Mr. Brookes put it, “an egg shell skull”.
Dr John Bourke, orthopaedic surgeon, treated the plaintiff for his right elbow injury. Dr Bourke has provided a report dated 16 August 2004.[30] In a reply which I permitted counsel for the defendant to give, Mr Jens criticised the plaintiff’s lawyers for not obtaining an up to date medical report from Dr Bourke as he was the treating surgeon. Whilst that may be a criticism well made, in evidentiary terms the criticism does not advance the defendants’ case. I draw no inferences from the fact that an up to date report has not been obtained from Dr Bourke.
[30] PCB 29
49. By the time that the plaintiff had attended upon Dr Bourke on 18 March 2003, he had been receiving physiotherapy and local cortisone injections and anti-inflammatory medication and had been supplied with a tennis elbow splint. He had also been advised in relation to stretches and exercise. The plaintiff was tender over the outer aspect of the right elbow and he had a positive tennis elbow test. He was also tender over the elbow joint margin. Dr Bourke felt that the plaintiff upon attendance had two problems, one being an a lateral epicondylitis (tennis elbow) and the other being an underlying elbow joint inflammation. Dr Bourke initially felt that conservative treatment was appropriate. He was reviewed twice in April 2003 when there was no abatement of the symptoms. By May and June 2003 there was still no abatement of the symptoms and the plaintiff was continuing to have the symptoms. Accordingly, there was an operation to release the extensor origin of the right elbow and this was carried out on 20 August 2003 and the wound had healed satisfactorily.
50. Dr Bourke reported that when the plaintiff was seen in late August and September 2003 he had some coldness of the right upper limb and he made a diagnosis of Complex Regional Pain Syndrome Type 1 affecting the right upper limb. When the plaintiff continued to have problems with the pain he was referred to the Geelong Pain Clinic where he was cared for by Dr Melissa Viney. In his report Dr Bourke summarised as follows:
“This man developed lateral epicondylitis as a result of work. There were some underlying inflammation of the elbow joint. His treatment was surgical. He developed a Chronic Pain Syndrome and was referred to the appropriate people. It became obvious that there were other problems influencing the work situation, which were unrelated to work itself. It was felt that he had reached the stage where he was fit to return to work of a modified type from a physical point of view.”[31]
[31] PCB 30
51. Mr Brookes in his address to me pointed out, in my view correctly, that the reference in the summary to “Chronic Pain Syndrome” should in fact be read as a reference to “Complex Regional Pain Syndrome Type 1” which had been referred to earlier in the report as a diagnosis made by Dr Bourke in August and September 2003. I think that inference can be properly made having regard to the fact that other doctors, to whom I shall later refer, have also diagnosed the plaintiff as suffering from a Complex Regional Pain Syndrome Type 1 of the right upper limb. It will be noted that Dr Bourke qualified his opinion relating to the plaintiff’s prospects of resuming work to say that he was “fit to return to work of a modified type from a physical point of view”. I infer that Dr Bourke was conscious of the fact that there were other factors at play.
52. The plaintiff’s physiotherapist, Steve Dodderel, has also provided a detailed report dated 25 August 2004.[32] Mr Dodderel, amongst other things, commented about the plaintiff’s capacity to return to his previous employment and he commented upon a proposed return to work plan dated 22 June 2004. He said:
[32] PCB 31
“I believe he currently has no capacity to carry out his previous occupation due to the severe pain he experiences, and the resultant lack of strength of the right hand. Although impossible to predict, it is also my belief that he will never return to his previous occupation. The protracted course of his condition, and its lack of resolution over this period of time, lends it to a permanent disability. With respect to the proposed return to work plan dated 22 June 2004, I do not believe that Mr Jantzen was able to return to work in accordance with this plan for the following reason – both the tasks deemed as suitable (ie. Nissan parts and labelling cutting travel bags) involved repetitive action of the hands. Even if Mr Jantzen were to use his non-dominant hand to pick up the parts described/or peel the stickers off the backing sheets, it would require his dominant arm and hand to stabilise the bag or hold the backing sheet. Although this may be deemed light duties, the continuous use of his arm in this fashion would only serve to further inflame his already highly irritable condition. I also believe that he has a significantly high level of resting pain. This will impact severely on his ability to concentrate and maintain his focus on even the most mundane activities. In summary, I therefore believe that the return to work plan was inappropriate for this man’s injuries.”[33]
[33] PCB 32-33
53. The plaintiff was referred by Dr Bourke to the Geelong Pain Management Clinic in January 2004. He then came under the care of Dr Melissa Viney and was admitted to the hospital between 13 and 29 April 2004. When first seen in the clinic he was found to be intoxicated. He had been discharged from the Beaufort Hospital on 13 April 2004 where he had been hospitalised for a period of four weeks and he was discharged because he was found secreting and consuming alcohol on the premises.
Dr Viney provided two reports, the first of which is dated 4 August 2004.[34] A limited MRI of the right elbow was performed. This showed inflammatory changes consistent with lateral epicondylitis rather than osteomyelitis. After his initial 16 days at Geelong Hospital the plaintiff was released and followed up regularly with check-ups. These were to further explore his depression and anxiety related to his injury and his consequent disabilities. The report of Dr Viney indicates that the plaintiff was focussed on performing activities of which he had previously been capable and became very frustrated with his situation. Dr Viney’s report of August 2004 concludes:
[34] PCB 34
“More recently, when I have seen Tony, I have been impressed by the colour and temperature disparity that exists in his upper limbs. In terms of a diagnosis I now believe that Tony demonstrates evidence of a Complex Regional Pain Syndrome Type 1, with a sympathetically maintained pain. I have recently arranged for him to undergo a stellate ganglion sympathetic block with complete resolution of the diaphoresis affecting the left hand, for a period of three weeks. Unfortunately this was not accompanied by a concurrent reduction in pain, but it is now likely that in spite of Tony’s exercise regime, that he has developed some of the secondary stiffness and disuse features that are common in patients with chronic pain problems. In summary it is likely that Tony’s surgery, performed for a work-related injury, has resulted in the complicating problem of a Complex Regional Pain Syndrome Type 1. This has produced increasing distress and a suicide attempt, probably on a pre-morbid background of a borderline personality disorder. Typically, the management of this condition involves maintaining activity and preventing secondary disuse phenomena.”[35]
[35] PCB 35
55. Where Dr Viney has referred to the left hand block I have assumed that this an oversight and that she intended her report to read “the right hand”.
56. It can be seen that as early as August 2004 there were specialists’ opinions from treating doctors, namely Dr Bourke and Dr Viney, confirming the view held by Dr Livingston subsequently, that the plaintiff suffers from a Complex Region Pain Syndrome Type 1 affecting the right arm. This is to be distinguished from chronic pain syndrome.
57. Dr Viney provided a further report dated 2 January 2005. In that report Dr Viney comments on the plaintiff’s psychological state and makes it clear that he had no ongoing psychological treatment as it was deemed inappropriate. She also commented on a return to work plan that had been formulated by the defendant, dated 22 June 2004, which she thought was not unreasonable. In her report Dr Viney said:
“Tony has had no contact with our clinical psychologist since July 2004, as it was deemed inappropriate. Tony is well known to the Psychiatric Crisis Assessment Team in the Beaufort region and had previously been under the care of the Psychiatric Acute Liaison Unit at the Ballarat Base Hospital after a suicide attempt early in 2004. In addition, other support systems, including a social worker, exist in the Beaufort region. These service providers were involved in Tony’s rehabilitation. Finally, it is my opinion that the “return to work” plan, dated 22 June 2004 was not unreasonable. The tasks, as presented in the plan, ie. bagging Nissan parts and labelling and cutting travel tags, are very light, and the structured graduation in activity level was allowed for. While these tasks are of a repetitive nature, frequent non-rostered breaks are catered for, allowing for stretching and alterations in position. These tasks would have been suitable for a trial, but Tony was reluctant to attend due to fear of aggravating his pain. It is also worth noting, that some of Tony’s reluctance to participate in the return to work program related to his self-consciousness and lack of self-efficacy. He has constantly made comment about others focussing on what he perceives to be his disability.”[36]
[36] PCB 40
58.The plaintiff was examined for medico-legal purposes by Mr Ken Dungey, a clinical
psychologist. He provided a report dated 18 October 2004 in which he opined:
“His scores of seven of the nine clinical scales were very significantly elevated indicating that he does have significant and widespread emotional problems, including depression, anxiety and preoccupation with health. The profile is that of a very troubled and stressed man. In view of the physical limitation in terms of what Mr Jantzen can reasonably do by way of employment, and his very real mental and emotional problems it is my opinion that he is unemployable at this time. He is greatly lacking in confidence and self-esteem and dominated by his pain and fear of aggravating his injuries. Taking these matters into account, it is very difficult to see him being able to find employment let alone compete satisfactorily with able-bodied workers and he has little by way of transferrable skills as any such skills involve workplace activities which would be prohibited by the nature of his injuries. His situation must be regarded as quite unstable and a further review is probably very necessary.”[37]
[37] PCB 46
59.The plaintiff was also seen by Mr Michael Epstein, psychiatrist, for medico-legal purposes in April 2005. Mr Epstein opined:
“From a psychiatric point of view as a result of chronic pain, discomfort, and disability he developed a Chronic Adjustment Disorder with depressed mood and anxiety with panic attacks and this condition has persisted. Associated with this has been one episode of attempted suicide. He is not having any psychiatric or psychological treatment at the moment but in my view would benefit from such treatment. His present capacity to undertake any manual labour appears to be very limited because of his physical condition, although the nature of his physical condition lies outside my area of expertise. Certainly he perceives himself as severely disabled. His condition appears to be stable and his prognosis is poor.”[38]
[38] PCB 54
60.I accept the evidence of Mr Dungey and Mr Epstein on this point. From a
psychological/psychiatric perspective the plaintiff is clearly in need of a great deal of assistance which assistance may improve his state. However, taking these matters into account and the fact that he has an ongoing physical injury to his right arm and elbow I accept the evidence of both of these experts that the plaintiff is virtually unemployable. A subsequent further report from Mr Epstein dated 27 April 2009 confirms this where he says:
“From a psychiatric point of view as a result of chronic pain, discomfort, and disability he developed a Chronic Adjustment Disorder with depressed mood and anxiety with panic attacks and this condition has persisted. His complaints of pain suggest the development of a Chronic Pain Disorder. He is not having any psychiatric or psychological treatment at the moment but in my view would benefit from such treatment. His present capacity to undertake any manual labour appears to be very limited because of his physical condition, although the nature of his physical condition lies outside my area of expertise. Certainly he perceives himself as severely disabled. His chronic pain which appears to be a psychiatric condition, together with his level of depression also interferes with his work capacity because of lack of motivation, difficulty coping with pressure, high levels of anxiety and problems with memory and concentration. His condition appears to be stable and his prognosis is poor.”[39]
[39] PCB 63-64
61.The plaintiff was also seen by Dr Peter Blomberry, a consultant vascular physician, on two
occasions, the first being 28 September 2006 and again on 12 November 2009. On examination on 28 September 2006 Dr Blomberry found that the plaintiff was “exquisitely tender on pressure over the right elbow”. The right elbow was three degrees cooler than the left and the right hand was one degree cooler than the left and also more sweaty. There was moderate tenderness down the forearm. There was a full range of movement of the wrist. He held the right elbow at 90 degrees and could not flex it beyond that. He could extend the right elbow to 40 degrees. The circumference of the upper arm was one centimetre less on the right side. This is significant in that it appears to be the only clinical finding akin to that of wasting of the right arm, although Dr Blomberry has not used the term “wasting”.[40]
[40] PCB 57
62.Dr Blomberry opined that the plaintiff was suffering a Complex Regional Pain Syndrome Type
1 in the right arm. In his opinion:
“In regard to prognosis, he has now had his symptoms present for almost four years and they are essentially stable. It is my opinion that his prognosis for recovery is poor and I do not anticipate that there will be any significant change in his level of disability in the foreseeable future. In regard to his ability to be able to undertake manual labour, it is my opinion that he has no capacity to undertake manual labour. He is right hand dominant and it is his right arm which is affected by the injury. He has a limited range of movement of the right elbow with a cold hand and it is my opinion that he has essentially a useless right arm from the point of view of employment. He is only trained for manual work and this would therefore preclude him from the workforce.”[41]
[41] PCB 58
63.In his most recent report Dr Blomberry again was of the opinion that the plaintiff suffered from
a Complex Regional Pain Syndrome Type 1. He said:
“Mr Jantzen has ongoing features of Complex Regional Pain Syndrome Type 1 affecting the right upper limb. He has a relatively useless right arm and is right hand dominant. It is my opinion that he is not fit to be able to do any form of work nor will he be in the future. His prognosis for recovery is extremely poor and it is my opinion that there will be no significant change in his level of disability in the foreseeable future.
He had also become extremely depressed in the past and had attempted suicide but more recently appears to be coping better with the pain. It is my opinion that the Complex Regional Pain Syndrome Type 1 that he has is all a complication of the lateral epicondylitis and surgery for it that developed during the course of his employment whilst working at AME Systems. In regard to the relative role of physical and psychological factors, Complex Regional Pain Syndrome Type 1 is an organic disorder of pain nerve pathways is not a psychological disorder. Mr Jantzen has previously had quite marked secondary depression and anxiety and this is also the case now. On the basis of my examination, I felt that all of his disability was essentially physical in nature and that the psychological components were making a significant contribution to his pain and suffering and to his inability to work and to enjoy life. It is my opinion that the disability prevents him from working.”[42]
[42] PCB 79
64. The plaintiff was also medically examined by Mr Kenneth Brearley, a surgeon, for medico-
legal purposes who saw the plaintiff on 23 September 2009. Mr Brearley thought that the plaintiff
had all of the features of a Complex Regional Pain Syndrome Type 1. He opined:
“He now exhibits most gross disability and he has little if any use of the right arm. He also has ongoing chronic severe pain and he suffers from severe sleep deprivation. He has in addition made a suicide attempt. He has all of the historical features of a Complex Regional Pain Syndrome which is an ill understood condition but a most disabling one nevertheless. In fact his disability is so severe that he requires a fulltime carer and he also has to enlist the help of a neighbour in regard to showing, dressing and even toileting. In the rooms today he was unable by himself to remove his jacket and apparel so that I could see his arms and I had to help him or rather remove these items from him so that I could carry out an examination. With regard to his work capacity there is no doubt that he is totally unfit for all forms of work. It is his physical disability as a result of the injury to his right elbow independent of any psychiatric component which is rendering him totally unfit for any form of employment whatsoever.”[43]
[43] PCB 76
65.In August 2003 (more than six years ago) the defendant had the plaintiff medically examined by
Mr Ronald Haig, an orthopaedic surgeon. He thought that the plaintiff was not unfit for all work at that time and that the plaintiff could return to work on the basis of a return to work plan that was then devised.[44] That evidence is well out of date and I place little weight upon it. The same might be said of a report obtained by the defendant from Dr Timothy Wood dated 16 December 2003.[45]
[44] DCB 21
[45] DCB 24
66.The defendant also obtained two reports from Dr Andrew Miller in March and October 2004.[46]
[46] DCB 29 and DCB 35
Again, I placed little weight on those reports having regard to their age and the fact that the doctor appears to have paid little attention or even conceived of the possibility that the plaintiff may be suffering from a Complex Regional Pain Syndrome Type 1 of the right elbow affecting the right arm. The failure to come to grips with that diagnosis by several treating doctors, including the treating surgeon, Dr Bourke, seems to me to leave a rather large whole in the evidence put forward by the defendant.
67.In March 2005 the defendant had the plaintiff medically examined by Dr David Kotzman, a
specialist occupational physician. It was his opinion that the plaintiff was suffering from Complex Regional Pain Syndrome Type 1 affecting the right upper limb following chronic lateral epicondylitis unsuccessfully surgically treated by a lateral release.[47]
[47] DCB 42
68.The defendant had the plaintiff medically examined by Dr Don Senadipathy, a consultant
psychiatrist, in 2003. He thought that the plaintiff was not disabled from work from a psychiatric point of view.[48] Again, that report is well out of date and takes no account of the subsequent history of treatment relating to the plaintiff. I place little weight on this report. The same might be said for a subsequent psychiatric report obtained by the defendant from Dr Barry Kenny dated 10 May 2005.[49]
[48] DCB 47
[49] DCB 49
Credit
69. The defendants attacked the plaintiff’s credit. They did so on a number of bases. The defendants led a lot of evidence relating the plaintiff’s past medical history in order to paint him as a person intent upon obtaining compensation at every turn. In my judgment the attack on the plaintiff’s credit ought not succeed in the circumstances of this case. The fact remains that the plaintiff was injured and quite badly in the course of his employment in 1986. He received extensive treatment and was in fact compensated for a period of seven years concluding in a lump sum settlement. Those injuries are not related to this current claim. True it is that the plaintiff claimed in proceedings related to the 1986 incident, that he suffered from ongoing anxiety and depression but he seemed to have resolved those issues when he in fact returned to work in April 1997. Subsequently, he did in fact work the first named defendant for a period of more than five years before he was again injured in the course of his employment with the firstnamed defendant in early December 2002. The plaintiff was generally well during that period of time. The defendant cannot gainsay those facts.
70.I admitted into evidence two videos of surveillance taken of the plaintiff by agents working on
behalf of the defendant. The first video depicted his movements on 24 April 2009. It commenced at 10.07 on that day and had a short footage of the plaintiff walking in his front yard. That video was inconclusive and was very short and no conclusion can be drawn from it.
71.At ten minutes past 2pm the plaintiff was further shown to be walking with another person in the
street. The video was taken at some considerable distance. The plaintiff appeared to be holding a cigarette in his right hand with his right hand and arm hanging normally by his right side. The plaintiff entered a gate and opened the gate significantly by kicking it with his foot. That video was also inconclusive. The defendant cannot rely on it to attack the plaintiff’s credit.
72.Further, I cannot conclude from the video that it shows a lack of impairment of the plaintiff’s right
arm. The only thing that can be concluded is that the video is of very limited assistance.
73.The second video of the plaintiff’s movements was taken on 24 November 2009, only a week
before the trial of this action. That video depicts movements of the plaintiff between about 9.50am and 11.53am with the plaintiff drinking with another person at his premises. During the course of the video the plaintiff is mainly seen in a seated position drinking. It is impossible to conclude that he is leaning on his right arm at all. The plaintiff in one part of the video is seen to be scratching his head using his right hand and at 10.19, whilst walking through a door, he pulls the slats of the door apart using his right hand. A frozen frame of that movement was admitted into evidence as Exhibit 5. Close examination of the movement shows that whilst the plaintiff does part the slats using both hands with his arm raised there is not full flexion of the arm at the elbow. Further, the plaintiff is wearing a guard over his right wrist. Again, I am of the opinion that the video evidence cannot be used to attack the plaintiff’s credit, nor can it be used to depict that the plaintiff in fact has a full range of movement of the right arm and elbow. The only thing that can be said is that the video evidence is inconclusive and I decline to make findings adverse to the plaintiff because of it. This is not a case where the video evidence depicts the plaintiff moving in a way which might be described as the antithesis of the way in which the case for him is put.
74.An issue as to credit was raised in the case by virtue of a further affidavit which I allowed the
plaintiff to file on the third day of the hearing. That affidavit was sworn by the plaintiff’s son, Kahn Jantzen. The plaintiff was asked about that affidavit in cross-examination and he agreed that many aspects of it were wrong. Equally, when he was cross-examined about the facts in his affidavit, Kahn Jantzen stood by what he had deposed to. He said that at times in the late 1990s he had seen his father partaking in activities with his other siblings, such as football and cricket. I have concluded that there is no certainty in the evidence here as to dates. The plaintiff, I think, is incapable of having an accurate recollection of any dates. When it comes to dates I would accept the evidence of Kahn Jantzen ahead of that of his father. However, I am of the opinion that I do not have to be satisfied about the accuracy of Kahn Jantzen’s affidavit. The fact remains that the available medical evidence shows on the balance of probabilities that the plaintiff continues to suffer ongoing pain in his right elbow which impairs the use of his right elbow and has other consequences such as loss of sleep and loss of enjoyment of life generally.
75.Mr Brookes in his final address to me said that the attack on Kahn Jantzen and his client,
because of the facts deposed by Kahn Jantzen, was nothing but a red herring in the case. I agree. I draw no conclusions – adverse or otherwise – against Kahn Jantzen or the plaintiff on that issue.
76.The central point in the case is whether or not the plaintiff has a physical injury to his right and
elbow and the preponderance of medical evidence is that he does.
Conclusions
77.When the case was opened the plaintiff sought leave to commence proceedings claiming
damages for both pain and suffering and loss of earning capacity. He relied upon the definitions
contained in sub-paragraphs (a) and (c) of sub-s.(37) of s.134AB of the Act.
78.In his final address Mr Brookes told me that he was not placing significant reliance upon a
finding under sub-paragraph (c).[50] This was in direct response to a final submission by Mr Scanlon that I should not accept that the plaintiff has suffered from a permanent severe mental and permanent severe behavioural disturbance or disorder within sub-paragraph (c) inter alia because the plaintiff is not and has not for some considerable period of time had any ongoing psychiatric treatment. Mr Scanlon said that were I to make such a finding it would be a “first in this State” because there is simply no evidence of ongoing treatment which he said would be necessary to make a finding of permanent severe mental or permanent severe behavioural disturbance or disorder. Recognising the force of that submission Mr Brookes, without withdrawing the claim under sub-paragraph (c) told me that he was not going to rely significantly upon it.
[50] Transcript 239
79.The plaintiff, I think, was wise to adopt this course. I could not and do not find that the plaintiff is
seriously injured within sub-paragraph (c) of the definition of serious injury contained in sub-s.(37). I do so because there is not evidence of ongoing treatment. However, there is an abundance of evidence that the plaintiff has significant ongoing psychosocial problems in the form of anxiety and depression and adjustment disorder and these are manifested in alcohol abuse and suicidal tendencies. The plaintiff’s psychiatric and/or psychological problems may not be severe within the meaning of the Act, but they nonetheless exist. These factors added to the fact that the plaintiff, I think has a serious injury in the form of epicondylitis of the right elbow and ongoing Complex Regional Pain Syndrome Type 1 mean that the plaintiff is in fact totally unemployable.
80.Having given close attention to the evidence, it is clear, I think, that the plaintiff suffers from
ongoing serious consequences for the injury to his right elbow. In particular, he has chronic and severe ongoing permanent pain in the right elbow which limits his movement of it and therefore his use of the right arm and right hand. His pain is caused in part by the development of a Complex Regional Pain Syndrome Type 1. I accept the evidence of Dr Bourke and Dr Livingston and Dr Brearley and Dr Blomberry to this effect. There is no evidence to gainsay these facts.
81.The defendant submits that this is a case where the plaintiff must disentangle any
consequences of pain and suffering and loss of earning capacity caused by psychiatric or psychological factors from those consequences that follow from the physical injury. Mr Brookes agrees that that is so, however he says that in this case all that he need do is point to a physical injury which is in itself serious, and if the evidence shows that the plaintiff is suffering a serious injury within sub-paragraph (a) then that is enough. He relies upon the decision of the Court of Appeal in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 and in particular part of the judgment of His Honour Ashley J at paragraphs 18 and 19 where His Honour said:
“Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of “serious injury”, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.
If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the “quantum” of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
82.I intend to apply the approach outlined by His Honour Ashley J in this case. In my judgment the
plaintiff has established that he has suffered from a permanent serious impairment or loss of body function of the right elbow and right arm. The injury can be described in my view as very considerable and more than significant or marked.
83.The plaintiff has not established that he has suffered a permanent severe mental or permanent
severe behavioural disturbance or disorder. In my view, insofar as the claim is put on that basis, the plaintiff must fail because there is no ongoing psychiatric or psychological treatment and in that circumstance it is impossible for me to find that the plaintiff’s mental of behavioural disturbance or disorder can be said to be “severe” within the Act.
84.However, the plaintiff obviously has ongoing psychiatric and psychological problems. These I
think are accurately described by Dr. Livingston as psychosocial problems. Burdened as he is with the ongoing serious physical injury to his right elbow those psychosocial problems take on special significance making him unemployable. I accept the medical opinion from Dr. Livingston to this effect.
85.Whilst it may be that the plaintiff is physically able to hold a stop/go sign at a road construction
site his other problems in reality mean that he is unemployable. In my view, in the real world, having regard to his ongoing psychosocial problems he is, for all intents and purposes, unemployable. In my judgment it would not be possible for the plaintiff to undertake “suitable employment” as that term is defined in s.5 of the Act.
86.The defendants rely upon a vocational assessment report prepared by Rob Lehmann a
vocational consultant dated 13 October 2004.[51] The report is now many years out of date and in
[51] DCB 57-63
my view not much weight can be placed upon it for that reason alone.
87.So far as the injury diagnosis is concerned the vocational assessment report relies only upon
the reports of Dr. Miller dated 17 March 2004 and Dr. Senadipathy dated 9 December 2003. Those reports are also well out of date. In preparing the report no consideration whatsoever has been given to the fact that the plaintiff has been diagnosed by several doctors as suffering from on going complex regional pain syndrome type1. Indeed no consideration appears to have been given to any material available from the plaintiff’s side. Under the heading “Transferable Skills & Abilities” the report list ten items which appear to be based on past experience of the plaintiff. In discussing various job descriptions said to be suitable for the plaintiff the report then applies previous skills to arrive at an opinion that the plaintiff has the necessary “Work Readiness” to undertake the job concerned without in any way accepting that the plaintiff may not presently have the physical capability to perform the job and without in any way considering that because of his psychosocial problems he may have effectively lost the benefit of any experience he previously had.
88.I do not accept that the plaintiff presently has the ability to undertake work as a “Console
Operator”. Also I do not accept that the plaintiff presently has the ability to work as a “Traffic Controller”. I note that he has to be trained in order to obtain the necessary qualification to perform this work. I very much doubt that his on going psycho social problems would permit him to obtain the necessary qualification and to do this work. The same might be said of other jobs discussed in the vocational guidance assessment report such as “Farm Overseer” and “Sales Assistant”. In short I regard the vocational assessment report as a nonsense and I do not accept it.
89.The plaintiff led evidence that in the three years leading up to the incident that resulted in the
injury to his right elbow, he earned respectively $23,707, $23,925 and $25,390. In the three years subsequent to the injury he earned $27,411, 27,313 and $13,031. He was in receipt of Workers’ Compensation Benefit for almost all of the period subsequent to the injury. Having found that the plaintiff is unsuitable for employment it follows that the plaintiff will succeed in each application.
90.The plaintiff’s application to bring a proceeding common law pursuant to s.134AB(16)(b) of the
Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant is granted.
91.After discussion with counsel I will pronounce formal orders and will hear the parties on the
question of costs.
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