Kadhim v Victorian WorkCover Authority
[2022] VCC 2110
•6 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-03376
| HAMEED KADHIM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2022 | |
DATE OF JUDGMENT: | 6 December 2022 | |
CASE MAY BE CITED AS: | Kadhim v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2110 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right knee and left knee – psychiatric injury – whether pain and suffering consequences are serious under the Act – whether the economic loss consequences are serious under the Act – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas [2017] HCA 32; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Ms S A Lean | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr B R McKenzie | TG Legal & Technology Pty Ltd |
HIS HONOUR:
Introduction
1On 11 March 2017, the plaintiff, Mr Hameed Kadhim, was working as a loader driver for Campbellfield Concrete and Mini Mix Pty Ltd (“Campbellfield Concrete”) at their facility in Mahoneys Road, Campbellfield. He said on this day, while getting out of the yard loader, he slipped off steps and fell (“the accident”). He landed on both knees. He said as a result, he injured both his knees, the right knee worse than the left.
2At the time of the incident Mr Kadhim was thirty-six years old. He was born in Iraq. He completed his secondary education to Year 12. After leaving school, Mr Kadhim worked in a car-trading business. In 2011, while still in Iraq, he injured his back when he fell from a tractor.
3In October 2012, Mr Kadhim arrived in Australia by boat. He was a refugee. After initially being detained at Christmas Island, he was transferred to Manus Island and then Perth. Detention was difficult for Mr Kadhim. He suffered psychological distress for which he sought counselling.
4In 2014, Mr Kadhim arrived in Melbourne. His sister, Dr Saud Kadhim, resides in Melbourne. Dr Kadhim is a general practitioner who practises at the Hughes Parade Medical Centre in Reservoir.
5Mr Kadhim is divorced from his wife. His former wife, fifteen‑year-old daughter, and nine‑year-old son, reside in Iraq.
6Mr Kadhim commenced full-time work with Campbellfield Concrete on 23 December 2015. He normally worked 14 hours per week overtime. At the time he was injured, he was earning $1,512 per week.[1] This was physically-demanding work.
[1]See the plaintiff’s Worker’s Injury Claim Form, Plaintiff’s Court Book (“PCB”) 114-115, and the Employer Injury Claim Report, PCB 117
7Mr Kadhim said that he continued working after the incident. He first sought medical treatment on 14 May 2017. On that day, he consulted his sister, Dr Kadhim.
8Dr Kadhim referred him for MRI scans of both knees. These were undertaken 31 May 2017. Referring to the radiologist’s report,[2] under “Clinical Notes” the reason for the referral was said to be:
“Severe acute post-trauma pain of both knees with swelling. Possible anterior cruciate ligament injury.”
[2]PCB 27
9The MRI scans, while not revealing ligamentous injury, reported medial meniscal tears to both the left and right knees. The tear in the right medial meniscus was said to be a “complex tear”.
10Mr Kadhim was referred to Mr Nigel Hartnett, orthopaedic surgeon. Mr Kadhim saw him on 7 August 2017. Mr Hartnett suggested to Mr Kadhim that he should lodge a WorkCover claim.
11Mr Kadhim subsequently lodged a WorkCover claim and liability was accepted.
12Mr Hartnett recommended to Mr Kadhim that he undergo surgery on his knees. Despite Mr Hartnett’s recommendation and a subsequent recommendation by Mr Bernard Lynch, orthopaedic surgeon, in April 2019, Mr Kadhim has not undergone the recommended surgery.
13On 21 September 2017, Mr Kadhim first consulted Dr Ismail Alhejaj, general practitioner. He has continued to consult Dr Alhejaj since that time.
14Mr Kadhim continued on at work until September 2018. He said he stopped working due to worsening knee pain.
15Consequential to his knee injuries, Mr Kadhim developed a severe psychiatric condition. He first discussed this with Dr Alhejaj on 8 August 2018. Dr Alhejaj referred him to a psychologist, Ms Stevie Marcus. Subsequently, he also referred him to a psychiatrist, Mr Byron Rigby. Mr Kadhim continues to consult Ms Marcus.
16In September 2020, Mr Kadhim purchased a truck and hired a driver in an attempt to earn income. He said this business failed. Apart from this venture, he said he had not returned to any work since ceasing with Campbellfield Concrete in September 2018.
17Mr Kadhim said that he continues to suffer pain and restriction in his right and left knees. He said he continues to suffer a severe psychiatric illness. He said that each of these injuries have, in their own right, serious consequences. Mr Kadhim said that the main focus of his case was centred on his psychiatric injury. He said that by reason of his psychiatric injury he is unable to work at all. Mr Kadhim said, in the alternative, he could not earn 60 per cent of his pre-injury earnings, which are agreed in the sum of $939 gross per week.
18The Victorian WorkCover Authority (“VWA”) said Mr Kadhim’s injuries were not serious and he could return to work if he were motivated to do so.
The nature of the proceedings and the issues to be determined
19This is an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013. Mr Kadhim seeks pain and suffering certificates pursuant to both subsection (a) and (c) of s325. He also seeks economic loss certificates for each of his injuries.
20While the VWA accept that Mr Kadhim suffered a compensable injury as a result of the 11 March 2017 work incident, they do not accept that any of his injuries are serious. They say that any problem which Mr Kadhim now has with either his right or left knee is due to pre-existing problems. The VWA also said that any psychiatric condition which Mr Kadhim now suffers is due to pre-existing injuries. They also said that there are non-organic components to his presentation. The VWA said that credit is an issue which will weigh heavily on my assessment of this application. The VWA said that Mr Kadhim could return to employment and undertake a range of suitable jobs.
21The issues to be determined are:
(a) as to Mr Kadhim’s credit and whether I can accept his evidence;
(b) the consequences which Mr Kadhim says that he suffers;
(c) which of the medical opinions should be accepted, and the assistance they provide;
(d) whether Mr Kadhim has, or continues to suffer, any work-related injury, be it his right knee, left knee or psychiatric illness, and whether such injuries are permanent.
(e) if I find Mr Kadhim does suffer ongoing consequences of a work-related injury, do the consequences:
(i)meet the “very considerable” test for pain and suffering;
(ii)preclude Mr Kadhim from working and/or earning at least 60 per cent of his pre-injury earnings and therefore entitle him to an economic loss certificate?
Mr Kadhim’s credit
22The VWA attacked Mr Kadhim’s credit. The matters which the VWA relied upon included:
(a) film;
(b) the existence of pre-existing psychiatric injury;
(c) the existence of pre-existing back injury;
(d) the failure to disclose either his pre-existing psychiatric injury and/or back injury;
(e) the failure to undergo the recommended surgery to his knees.
23The VWA said that I should not accept Mr Kadhim as being truthful or reliable. They said he was deliberately exaggerating his injuries. Indeed, the VWA said that his non-organic presentation showed him to be deliberately malingering.
The film
24The VWA showed a series of films to the Court. They said that the film showed, at least on one occasion, Mr Kadhim walking quickly and in an unrestricted manner. This, they said, when compared to his presentation to the doctors who assessed him, established he could not be believed. In particular, the VWA relied upon the comments made by Dr David Barton, occupational physician. Dr Barton said, at the time of his assessment of Mr Kadhim, that he was limping, moving slowly, grimacing and complaining of significant pain and restriction. The VWA said that this was at odds with the film which was taken at that time. They said Mr Kadhim was “putting on a show” for the doctor.
25I watched the film in court and subsequently. From my observations, I conclude:
· On 3 April 2019, Mr Kadhim was walking in a manner which I described in court as “briskly”.[3] Having reviewed the film, I consider my initial observation to be appropriate.
· In the balance of the film, Mr Kadhim was walking slowly. This was on 28 March 2019, 30 June 2021 and 26 April 2022. There were times when Mr Kadhim walked with an antalgic gait. Indeed, I considered, on occasions Mr Kadhim appeared to have a slight limp.
[3]Transcript (“T”) 67, Line/s (“L”) 8-12
26The VWA agreed that they had 50 hours of video which had been taken on ten separate occasions over a number of years.[4]
[4]T64, L24-27
27The film was taken primarily of Mr Kadhim going to/from medical appointments organised by the VWA. The film did not show Mr Kadhim undertaking activities other than walking and driving. The film did not show Mr Kadhim undertaking any strenuous activities.
28Mr Kadhim said that the film was consistent with the level of disability which he alleges.
29I do not consider that the activities depicted in the film, of themselves, impugn Mr Kadhim’s credit. At its worst, the film shows him walking briskly on one occasion. I do not consider that to be outside the capacity of a person who suffers genuine knee problems. I must also weigh that against the balance of the film which, on my assessment, was consistent with a person who has genuine knee problems.
30The film, of itself, does not provide sufficient basis for Mr Kadhim’s applications to fail. Indeed, I accept that overall, the film provides Mr Kadhim with a level of support.
The pre-existing psychiatric injury
31Mr Kadhim, in his affidavit of 26 March 2021, did not disclose that he had suffered psychological distress whilst in detention. That Mr Kadhim suffered some psychological distress whilst in detention was not a part of his affidavit evidence until 15 July 2022.
32The VWA relied upon clinical records from International Health and Medical Services (“IHMS”).
33Mr Kadhim had, whilst in detention, obtained medical treatment from IHMS for a variety of medical conditions. I was specifically referred by the VWA to two consultations.
34Firstly, to a transferee medical request form dated 17 January 2013.[5] This form recorded:
“My psychological status getting worse and I can’t sleep and difficulty breathing.”
[5]Defendant’s Court Book (“DCB”) 157
35The second, dated 24 January 2013, doing the best I can, recorded:
“Hamid requested to see a psychologist following the meeting with IHMS, DIAC IOM on the 23-1-13. Client was seen by IHMS counsellor previously with a colleague when he had suicide ideation. Client presented in a low mood, however denied any plan to harm himself. Client was in the mind set that the writer could help with VISA application. When he was advised this is not a health issue he appeared to understand due process. He feels confusion on what he is being told by the above stakeholders. Client reported no significant MH [mental health] issues nor the desire to continue appointments.”[6]
(My emphasis)
[6]DCB 156
36This entry was attributed to Jo Fauulard, counsellor.
37The VWA said this entry established Mr Kadhim as suffering a pre-existing psychiatric condition. Further, they say he should have disclosed this to the various doctors who have assessed him.
38That detention was likely to be stressful and mentally challenging to Mr Kadhim of itself ought be no surprise.
39Mr Kadhim said, in his affidavit of 15 July 2022, that:
“… I have previously experienced some anxiety and depression in the past, due to stressful life events. In particular, I found it very stressful being in detention and not knowing when I was going to be released.
Once I was released into the community and able to work, I tried to put this behind me. My mental state really improved following this. I was not experiencing ongoing anxiety and depression at the time of my injury in 2017.”[7]
[7]PCB 19
40The VWA made no reference to any alleged ongoing psychiatric illness or psychiatric condition after Mr Kadhim’s release from detention. I was not taken by the VWA to any medical material between late 2013 and March 2017 evidencing any ongoing psychiatric distress. I was not able to identify any reference to psychological distress in the Hughes Parade Medical Clinic records prior to the accident.
The back injury
41Mr Kadhim, in his affidavit of 26 March 2021, did not disclose the back injury which he had suffered prior to the accident. There was a disclosure in his 3 June 2022 affidavit. He said that while he had experienced back pain for a number of years and understood that he had suffered some disc protrusions, the pain in his lower back had settled.
42The medical records of IHMS note that, on 24 April 2013, Mr Kadhim was complaining of back pain with pain radiating down his right leg. He advised on that day, he had suffered an L4-5 disc injury in Iraq.
43Between 12 November 2013 and 27 March 2015, there are five consultations recorded in the Hughes Parade Medical Clinic where Mr Kadhim complained of back pain and neuropathic pain. He was prescribed Lyrica in November 2014.
44As previously noted, Mr Kadhim commenced employment with Campbellfield Concrete in December 2015. There were no consultations between 27 March 2015 and the accident for back problems.
45Mr Kadhim said that his back did not interfere with his work with Campbellfield Concrete. There was no evidence called in the course of the hearing to contradict Mr Kadhim’s evidence in this regard. I do, however, note that, subsequent to the accident on 19 May 2017, Mr Kadhim did complain to Dr Kadhim of low back pain and was referred to a chiropractor.
Conclusions in respect to the non-disclosure of the pre-existing psychiatric distress and back injury
46While the failure by Mr Kadhim to disclose his back injury and the psychological distress which he suffered whilst in detention in his first affidavit and to various doctors was quite rightly raised by the VWA as a credit and reliability issue, I must weigh that against the balance of the evidence. I accept that Mr Kadhim did have a longstanding back issue. This should have been disclosed.
47However, there is no evidence that between March 2015 and the accident, and, in particular, while he was working with Campbellfield Concrete, he was having any back problems of significance. Likewise, there is no evidence to suggest that after Mr Kadhim was released from detention, he suffered ongoing psychiatric distress of significance. This must all be put into the context of a man who has settled in a new country, obtained a job where he was earning good money, and where English is not his first language.
48Further, I accept that given his circumstances, Mr Kadhim would face difficulties in dealing with the complexities of the WorkCover scheme.
49While the VWA challenged Mr Kadhim’s credit, and this was thoroughly tested in cross-examination, I do not consider the failure to disclose the psychological distress suffered in detention or the pre-existing back injury as fatal to his credit.
The failure to have knee surgery
50The VWA also sought to attack Mr Kadhim’s credit because he decided not to undergo the knee surgery which had been recommended by two treating orthopaedic surgeons. They said this was consistent with Mr Kadhim having either minor problems with his knee or in fact no ongoing problems. I do not accept this to be so.
51Firstly, any surgical procedure has inherent risks. These risks having been explained to Mr Kadhim were of obvious concern to him. He said so. This is not unreasonable. I do not accept that this diminishes the significance of his knee injuries.
52Secondly, I must put this criticism in the context of a man who, at the time the advice was provided to him, was suffering from a significant psychiatric condition.
53I now turn to Mr Kadhim’s evidence.
Mr Kadhim’s evidence
54Mr Kadhim said that he continues to suffer ongoing pain in his knees. He said that at times, particularly when he overused his knees, he suffered swelling. He said the swelling was variable.
55Mr Kadhim said that he had problems kneeling, squatting and lifting. He said that he found walking and standing for long periods of time difficult.
56As a result of his ongoing knee problems, Mr Kadhim said there were a range of activities for which he was either restricted or which he was precluded from undertaking.
57The activities for which he was restricted included:
· household and domestic activities such as cleaning
· doing his shopping
· praying
· activities with his nephews and nieces
· driving distances
· walking on the beach or participating in family picnics
· walking on uneven surfaces.
58The activities from which he was precluded included:
· social soccer
· undertaking training at the gym
· swimming at the pool.
59Mr Kadhim said that he continued to suffer ongoing anxiety and depression. He said he worried a lot. He said his psychological distress included:
· reduced motivation
· suicidal thoughts
· low energy
· a sense of helplessness
· experiencing panic attacks.
60From my observations, Mr Kadhim’s presentation in court was flat and he displayed quite pronounced psychological distress. I considered that to be genuine.
Assessment of the medical evidence and which medical opinions should be accepted?
61Moving firstly to Mr Kadhim’s treating doctors.
Dr Ismail Alhejaj, general practitioner
62Dr Alhejaj provided two medical reports. In his first report of 27 August 2019, Dr Alhejaj provided a very helpful history.
63Dr Alhejaj obtained a history that on 11 March 2017, when Mr Kadhim was getting out of a machine, he slipped and fell awkwardly on his knees. Mr Kadhim told Dr Alhejaj that at that time he was physically fit and attending gym sessions regularly. Dr Alhejaj noted that Mr Kadhim had continued to work after the accident, with increasing difficulties. He noted Mr Kadhim had initially tried different modalities of conservative treatment, including anti-inflammatory medication, knee braces, and hydrotherapy.[8] As the condition was not responding to conservative treatment, Mr Kadhim was referred for MRI scanning.
[8]PCB 65
64The MRI scans undertaken 31 May 2017 showed a horizontal oblique tear of the medial meniscal posterior horn and body of the left knee, and a more complex tear involving the medial meniscal posterior horn and body of the right knee.
65Dr Alhejaj said he referred Mr Kadhim to Mr Hartnett, orthopaedic surgeon. On 7 September 2017, Mr Hartnett consulted Mr Kadhim. Mr Hartnett recommended physiotherapy.
66Dr Alhejaj said Mr Kadhim attended Mr Andrew Nawrocki, physiotherapist, and had regular physiotherapy sessions.
67On 16 October 2017, Mr Kadhim reattended Mr Hartnett. At that time Mr Hartnett reported some improvement as a response to the physiotherapy treatment. Mr Hartnett suggested that the physiotherapy treatment be continued. Mr Hartnett advised him there was no need for surgery at that stage.
68Dr Alhejaj said that despite the ongoing physiotherapy treatment and strict compliance by Mr Kadhim with the suggested exercise program, there was no further improvement in Mr Kadhim’s condition.
69On 10 September 2018, Mr Kadhim told Dr Alhejaj that he was unable to cope with his work because of his knee pain. Despite taking medical analgesia, he said that the pain was persistent throughout the day and night.
70On 24 September 2018, Dr Alhejaj noted that Mr Kadhim’s physical and mental condition had deteriorated. Dr Alhejaj issued him with a WorkCover certificate certifying him unfit for any duties.
71Mr Kadhim reattended Mr Hartnett on 31 October 2018. Mr Hartnett advised Dr Alhejaj that because of the chronicity of Mr Kadhim’s symptoms, the impact on his physical ability, and the tear pattern, he needed to undergo bilateral knee arthroscopies.
72Dr Alhejaj said Mr Kadhim was reluctant to undergo the recommended surgery because he was uncertain of the outcome. Dr Alhejaj also said that Mr Kadhim’s mental status had deteriorated. He referred him for psychotherapy with Ms Stevie Marcus, psychologist, and for psychiatric review with Dr Byron Rigby, psychiatrist.
73Dr Alhejaj said in his first report that Mr Kadhim was suffering from chronic bilateral knee pain which was worsened by physical activity including “long standing, walking and driving”. He also recorded “significant bilateral knee swelling”. Dr Alhejaj said that Mr Kadhim was suffering severe depression, anxiety, poor sleep and lack of concentration.
74At the time of his first report, Dr Alhejaj considered Mr Kadhim had “no capacity for his pre-employment duties”. He said he believed Mr Kadhim’s incapacity was permanent. He said he thought Mr Kadhim had very limited future employment options.
75Dr Alhejaj provided a second report, dated 11 June 2022. At this time, Dr Alhejaj said Mr Kadhim was suffering bilateral medial meniscus tears, complicated by major depressive disorder. Dr Alhejaj also said that Mr Kadhim’s mental condition was a major factor in the worsening of his general wellbeing. He said that Mr Kadhim had been troubled with severe depression, ongoing anxiety, poor sleep, and lack of concentration. He said Mr Kadhim was using strong analgesia including Panadeine Forte and Celebrex for his pain. He said he was prescribed Avanza, Efexor, and Quetiapine for his depression. He was prescribed Zolpidem with Valium on need for sleep.
76In respect to work, Dr Alhejaj said that Mr Kadhim had significant restriction in relation to his employment options. Dr Alhejaj did not consider Mr Kadhim had any capacity for his pre-employment duties whether on a part-time or full-time basis. He considered his incapacity to be permanent. In respect to suitable alternative employment, Dr Alhejaj considered Mr Kadhim to be extremely limited in his future employment opportunities.
The orthopaedic surgeons and the sports physician
77Mr Kadhim has been referred to two orthopaedic surgeons and a sports physician for assessment, advice and treatment.
Mr Nigel Hartnett, orthopaedic surgeon
78Mr Hartnett first saw Mr Kadhim on 7 September 2017. On examination, he found “small effusions”. Meniscal provocation elicited discomfort, and Mr Hartnett noted small clicks within the knee joints.
79Mr Hartnett said the MRI scans confirmed bilateral complex tears of both medial meniscal cartilages, and there was associated parameniscal cyst seen.
80On 16 October 2017, Mr Hartnett saw Mr Kadhim again. He noted some improvement, which he attributed to both Mr Kadhim’s efforts and to Mr Nawrocki, physiotherapist. At that time, Mr Hartnett did not recommend surgery.
81On 31 October 2018, Mr Hartnett re‑examined Mr Kadhim. On that day, Mr Kadhim attended with “Nadine from Ipar RTW”. Mr Hartnett said that Mr Kadhim’s work had become “incredibly problematic”, to the extent that Mr Kadhim was not working. Mr Hartnett said in discussion with Mr Kadhim and Nadine that –
“… given the length of time of symptoms, the tear pattern and his difficulties with his knees, my only recommendation now is for BILATERAL Knee Arthroscopies.”[9]
[9]PCB 35
82Mr Hartnett said that he outlined to Mr Kadhim the risks and benefits of the proposed surgery and the success rate.
83Mr Hartnett said that Mr Kadhim advised that he would like a trial of injection therapy.
84I pause here to note that on 27 April 2018, Mr Kadhim had consulted Associate Professor Julien Freitag, sports and exercise medicine physician. This was at the request of Dr Alhejaj. Associate Professor Freitag had recommended that Mr Kadhim undergo ultrasound-guided corticosteroid local anaesthetic injections into his knees. Associate Professor Freitag, in his report of 27 April 2018, said that these injections may provide Mr Kadhim with temporary relief. He also said that it was appropriate for Mr Hartnett to consider arthroscopic debridement.
85Mr Hartnett said that he was happy for Mr Kadhim to proceed with the trial injection therapy, but it was his opinion “this will be of no benefit to him”.
Mr Bernard Lynch, orthopaedic surgeon
86On 8 April 2019, Mr Kadhim consulted Mr Lynch. Mr Lynch found tenderness over the medial joint line of both knees. Mr Lynch noted the MRI scan findings of medial meniscus tearing. Mr Lynch said that Mr Kadhim did require meniscal resection on both knees. He noted that Mr Kadhim was very apprehensive about the proposed surgery, and needed time to consider his options.
The proposed surgery
87Thus, by April 2019, Mr Kadhim’s general practitioner and two orthopaedic surgeons had told him that he needed bilateral arthroscopic surgery. Associate Professor Freitag had told Mr Kadhim that he should have injections in his knees but surgery may be appropriate. The WorkCover authorised insurer had accepted liability for this proposed surgery.
The psychiatric injury and treatment
Ms Stevie Marcus, psychologist
88Ms Marcus first met with Mr Kadhim in September 2018. Since that time, he has seen her on a regular basis.
89Ms Marcus diagnosed Mr Kadhim as suffering from a Major Depressive Disorder and Generalised Anxiety Disorder, reactive to his workplace injury which occurred in March 2017. Between September 2018 and her first report of 13 May 2019, Ms Marcus had been treating Mr Kadhim every two weeks.
90At the time of her first report, Ms Marcus said that Mr Kadhim continued to present in a depressed and anxious state. She said that his psychological state had deteriorated over the preceding few months. She said Mr Kadhim consistently reported a persistent low mood, inability to control/stop worrying, and chronic pain. His sleep was impaired, he felt fatigued, he was lacking in energy and motivation, and he had cognitive difficulties, including memory loss and lack of concentration, which caused him frustration and distress. He told her he experienced feelings of hopelessness. Ms Marcus considered Mr Kadhim’s condition was “well established”.
91Ms Marcus provided a number of reports throughout 2020 and 2021 which echoed the same sentiment as her 13 May 2019 report.
92Ms Marcus provided a detailed report to Mr Kadhim’s lawyers dated 24 June 2022. In this report, Ms Marcus confirmed her diagnosis of Major Depression and a Generalised Anxiety Disorder. She considered Mr Kadhim also had chronic pain symptoms. Ms Marcus said Mr Kadhim had no work capacity at the present time. She felt the prognosis was poor. She said Mr Kadhim’s symptoms continued to impact on his functioning and overall emotional wellbeing, and restricted his capacity to work.
Dr Byron Rigby, psychiatrist
93Dr Rigby’s initial consultation was on 8 March 2019. There are five reports from Dr Rigby in evidence. Dr Rigby diagnosed Mr Kadhim as suffering treatment-resistant Major Depression. Dr Rigby said that Mr Kadhim’s depression did not respond to a massive escalation of anti-depressant medication supplemented by cognitive approaches, non-pharmaceutical measures and psychotherapy. He said that Mr Kadhim’s condition responded, to some degree, to acceptance and commitment training. Dr Rigby did not consider that Mr Kadhim had a current capacity for work. He said that the prognosis was poor, both in terms of recovery from pain and depression and in terms of work capability. He said that return to work remained improbable for the foreseeable future.[10]
[10]PCB 50
The medico-legal reports
94The plaintiff relied upon medico-legal reports from:
(a) Mr Justin Wong, orthopaedic surgeon, of 10 June 2022;
(b) Dr Meena Mittal, pain specialist, of 6 June 2022;
(c) Dr Nathan Serry, psychiatrist, of 15 June 2022;
(d) Dr Joseph Slesenger, occupational physician, of 2 June 2022.
95The VWA relied upon medico-legal reports from:
(a) Dr John Lange, occupational physician, of 3 April 2019;
(b) Dr Stephen Stern, psychiatrist, of 23 September 2020;
(c) Mr Tim Gale, orthopaedic surgeon, of 5 November 2020;
(d) Dr David Barton, occupational physician, of 1 July 2021 and 28 June 2022;
(e) Associate Professor Saji Damodaran, psychiatrist, of 5 September 2022;
(f) Mr Anthony Dunin, orthopaedic surgeon, of 10 May 2022.
96The VWA also relied upon:
(i) the Medical Panel Opinion of 16 February 2021;
(ii) a vocational assessment report of Ms Nikki Burden and Ms Janette Ash, Recovre, of 23 May 2022.
Mr Justin Wong, orthopaedic surgeon
97Mr Wong diagnosed Mr Kadhim as suffering a complex tear of the medial meniscus in his right knee. He also said that Mr Kadhim had developed secondary muscle weakness and dysfunction and right knee stiffness which were contributing to his pain. Mr Wong said Mr Kadhim also suffered a complex tear of the medial meniscus in his left knee and had developed secondary muscle weakness and dysfunction and left knee stiffness causing pain. Mr Wong said there was an organic component to Mr Kadhim’s pain.
98Mr Wong said each of Mr Kadhim’s knee injuries, independently, by reason of his functional limitations, would inhibit his ability to perform work on a reliable and consistent basis. He said Mr Kadhim was not fit to return to his pre-injury employment as a machine operator/driver. He said that in his opinion, given Mr Kadhim’s injury, work history, and education, he was currently not suited for any work on a reliable and consistent basis. Mr Wong said that Mr Kadhim’s incapacity for work, based on his right and left knee injuries (independently), would continue into the foreseeable future.
Dr Meena Mittal, pain specialist
99When Dr Mittal examined Mr Kadhim, she found “mild swelling” was present in both knees. She also found increased tenderness in the medial joint line and inferior to the patella in both knees. Dr Mittal said that Mr Kadhim’s pain was secondary to the complex medial meniscus tears. She said, on her assessment, that the medial meniscal tears were related to the work injury which occurred on 11 March 2017.
100Dr Mittal noted the opinions of the treating orthopaedic surgeons in respect to the proposed surgery. Dr Mittal suggested that as an alternative to surgery a spinal cord stimulator or neuromodulation could be considered. Dr Mittal said she considered work was a significant contributing factor to Mr Kadhim’s presentation. She said there was an organic component to Mr Kadhim’s pain.
101In respect to Mr Kadhim’s right knee, Dr Mittal outlined functional restrictions. She said, based on his right knee alone, he could not perform work on a reliable and consistent basis. She said that he was unfit for his pre-injury duties and any work which he may have been suited for. She said his restrictions would continue into the foreseeable future. She expressed a similar opinion in respect to Mr Kadhim’s left knee.
Dr Nathan Serry, psychiatrist
102Dr Serry, having undertaken a detailed review of the medical records and the multitude of medical reports which he was provided, and having assessed Mr Kadhim, said:
“The claimant’s diagnosis is that of a moderately severe chronic adjustment disorder with anxious and depressed mood. A differential diagnosis of a major depression with anxious features could also be considered.
Further still, it is conceivable that the claimant has developed a somatic symptom disorder with predominant pain, persistent and of moderate severity.”[11]
[11]PCB 112, Question 1
103Dr Serry said, in his opinion, Mr Kadhim’s psychiatric injury had developed as a consequence of his physical injuries. He said that Mr Kadhim’s psychiatric injury was materially contributing to his incapacity for work. Dr Serry said that Mr Kadhim struggles with concentration and memory, lack of motivation, and has a tendency to be irritable, impatient, and short-tempered in the context of persistent pain. Dr Serry said these symptoms would all interfere with Mr Kadhim’s ability to perform work on a reliable and consistent basis.
104Dr Serry noted that despite the therapeutic dosages of psychotropic medication, Mr Kadhim remained very symptomatic. Dr Serry said that he did not consider a pain-management program would lead to any significant improvement. Dr Serry considered Mr Kadhim’s prognosis to be guarded.
Dr Joseph Slesenger, occupational physician
105Dr Slesenger considered that Mr Kadhim’s symptoms were consistent with meniscal tears. He said that the incident of 11 March 2017 was a plausible cause. Dr Slesenger was also concerned with the development of degenerative change within the knee joints. Dr Slesenger said Mr Kadhim’s pre-injury duties were outside his capacity limits. He said that he thought Mr Kadhim was unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.
Dr John Lange, occupational physician
106Dr Lange was suspicious of Mr Kadhim’s complaints and presentation. He “suspected” that Mr Kadhim had underlying meniscal tears prior to the fall at work.
107However, Dr Lange said that there had been an exacerbation of Mr Kadhim’s pre‑existing knee conditions which occurred as a result of the fall at work. As at 3 April 2019, Dr Lange considered that exacerbation had resolved. He said that Mr Kadhim did not have symptoms consistent with a meniscal tear.
108Dr Lange said that Mr Kadhim was fit to return to full normal duties.
109Dr Lange did, however, observe that Mr Kadhim “appears to have psychiatric problems and is on quite strong anti-depressants”.[12] He said he could not comment on whether or not this affected his work capacity.
[12]DCB 16
Dr Stephen Stern, psychiatrist
110When Dr Stern assessed Mr Kadhim on 23 September 2020 he diagnosed him as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said that Mr Kadhim’s psychiatric state related to his work injury of 11 March 2017. Dr Stern considered the treatment provided by Ms Marcus and Dr Rigby was appropriate. Dr Stern said Mr Kadhim’s psychiatric injury had stabilised. He said Mr Kadhim’s social and leisure activities had been reduced. He considered Mr Kadhim to be suffering a 15 per cent permanent AMA psychiatric impairment. Dr Stern was not asked for, nor did he express, an opinion in respect to Mr Kadhim’s work capacity.
Mr Tim Gale, orthopaedic surgeon
111Mr Gale noted that Mr Kadhim, at the time of his assessment, moved freely around the consulting suite without any postural or gait abnormality. Mr Gale said that the MRI scans of Mr Kadhim’s knee showed:
(a) in respect to the right knee, there was a complex medial meniscal tear and a small defect in the medial patellar facet;
(b) in respect to the left knee, there was a tear of the medial meniscus with a mildly thickened medial patellar plica.
112Mr Gale thought that it was unlikely that Mr Kadhim suffered any meniscal injury in the fall, and that his current symptoms in both knees could not be explained on the basis of the medial meniscal injury alone. He felt that the current clinical evaluation suggested that the majority of the symptoms had a non-organic basis due to some type of chronic pain state.[13] Mr Gale said that as Mr Kadhim continues to suffer symptoms that commenced at the time of the subject incident of injury, he would accept that his pain state is secondary to the “subject incident of injury”.[14]
[13]DCB 34
[14]DCB 34
113Mr Gale said that in his opinion, Mr Kadhim’s psychiatric condition, for which he is receiving psychological counselling and psychiatric management, “is likely to be contributing to the chronic pain state and acting as a barrier to resolution of his current clinical presentation”.[15]
[15]DCB 34
114Mr Gale said that Mr Kadhim’s prognosis would be guarded. He considered that Mr Kadhim’s management to date had been “sub-optimal”. He did not consider there would be any benefit gained from the suggested arthroscopic procedures on either knee. He considered a referral to a multi-disciplinary pain-management program would be appropriate.
115Mr Gale considered that Mr Kadhim’s impairment pursuant to the AMA Guides was 0 per cent.
The Medical Panel
116On 10 February 2021, Mr Kadhim was assessed by the Medical Panel. It was constituted by Dr David Murphy, rehabilitation physician, and Mr Garry Grossbard, orthopaedic surgeon. The Panel concluded that Mr Kadhim was suffering from bilateral knee pain and restriction of knee movement following soft tissue injuries of the right and left knees relevant to the accepted physical injury. The Panel considered that Mr Kadhim’s medical condition was stable and permanent.
117The Panel concluded that Mr Kadhim was suffering a permanent 4 per cent AMA impairment to his right knee. The Panel considered that Mr Kadhim was suffering a permanent 4 per cent AMA impairment to his left knee. The Panel was of the opinion that Mr Kadhim cooperated with the Panel to the best of his ability. The Panel did not agree with the assessment of Mr Gale.
Dr David Barton, occupational physician
118Dr Barton accepted that the work incident in March 2017 may have caused “some temporary worsening or highlighting of the knee problems in the menisci”.[16] Dr Barton considered Mr Kadhim’s condition to be longstanding. Dr Barton considered the changes shown in the MRI scan to have little to do with Mr Kadhim’s employment or any particular incident.
[16]DCB 43, paragraph 6
119Dr Barton said that Mr Kadhim, when being examined, “grimaced” and complained of pain. Dr Barton said in his assessment there were a number of the findings that pointed towards a considerable degree of illness behaviour. Dr Barton said that he believed the impact on Mr Kadhim’s work capabilities has more to do with his illness belief, his apparent mental health problems, and the compensation process.[17]
[17]DCB 43, paragraph 9(a)
120Dr Barton was provided the Recovre report of 28 June 2022. Dr Barton said that Mr Kadhim could work on a full-time and sustained basis if so motivated.[18]
[18]DCB 46, paragraph 2(a)
121I was not provided with the list of materials supplied to Dr Barton at the time of his assessments. Dr Barton did not make reference to any of the psychiatric and/or psychological reports which were in evidence.
Associate Professor Saji Damodaran, psychiatrist
122At the time of Associate Professor Damodaran’s assessment, he was of the opinion that:
“Based on the available information, I am of the opinion that Mr Kadhim is suffering from adjustment disorder with depressed mood along with chronic pain disorder associated with psychological factors and general medical condition.”[19]
[19]DCB 56, Question 1
123Associate Professor Damodaran said that the work-related contribution to Mr Kadhim’s Adjustment Disorder had not resolved.[20] He considered Mr Kadhim’s short-term prognosis to be quite guarded due to the persistent preoccupation regarding the pain and the significant disability focus. In the longer term, he said, the prognosis would be favourable, provided Mr Kadhim is able to secure alternative employment.
[20]DCB 57, Question 6
124Associate Professor Damodaran said that Mr Kadhim did not have the capacity to return to work in his pre-accident employment. He said that Mr Kadhim could be considered for a return to that employment once his pain symptoms are managed and he regains physical capacity.
125Associate Professor Damodaran said that, from a psychiatric point of view (that is, excluding the physical injury and limitation), Mr Kadhim had capacity for suitable employment. He did not think he could work full-time hours. Associate Professor Damodaran said Mr Kadhim was restricted to 20 hours per week due to his psychiatric injury.
126Associate Professor Damodaran noted the opinions of Dr Lange and Dr Barton that there was no ongoing work-related physical injury. He said, based on those opinions, Mr Kadhim could have non-work-related constitutional physical injuries which may be leading to the secondary adjustment disorder.
Mr Anthony Dunin, orthopaedic surgeon
127Mr Dunin assessed Mr Kadhim on 26 April 2022. He said that Mr Kadhim sustained direct blows to the front of his knees in the March 2017 incident, which most likely resulted in soft-tissue contusion of a minor degree which had substantially resolved. Mr Dunin said that there was a marked functional overlay contributing to the ongoing nature of the pain and its worsening.[21]
[21]DCB 65, Question 1
128Mr Dunin said Mr Kadhim’s prognosis was poor. He said that Mr Kadhim had little insight into the nature of his condition. Mr Dunin said that chronic pain, particularly in the workers compensation area, can continue indefinitely.
129Mr Dunin considered the meniscal tears to be pre-existing and to have no bearing on Mr Kadhim’s symptoms. Mr Dunin said that the advice provided by Mr Kadhim’s orthopaedic surgeons that he should undergo arthroscopic surgery “caused him great trepidation”.[22] Mr Dunin considered the vast majority of Mr Kadhim’s symptoms related to functional overlay and a degree of chronic pain syndrome.
[22]DCB 65
130When asked for his opinion whether Mr Kadhim had suffered injury by reason of his employment, he said:
“I consider that he sustained soft tissue injuries to the front of his knees. In other words there was a direct causal link between his employment and the soft tissue injury. I consider that the soft tissue injury has resolved. His ongoing symptoms are related to functional overlay secondary to the soft tissue injury.”[23]
[23]DCB 66, Question 6(a)(i)
131Mr Dunin later in his report said:
“Unfortunately, he has significant ongoing severe pain related to the functional overlay and chronic pain syndrome.”[24]
[24]DCB 67, Question 7
132Mr Dunin said that the significant secondary functional overlay and anxiety and depression would prevent Mr Kadhim from returning to his previous employment.[25]
[25]DCB 68, Question 10(a)
133Mr Dunin said these conditions also prevented Mr Kadhim from returning to any suitable employment.[26]
[26]DCB 68, Question 10(b)
134Mr Dunin said that he considered Mr Kadhim would not be able to perform any duties because of his anxiety and depression. He did not think his work impairment related to ongoing physical problems with his knees.
135Mr Dunin said that he considered assessment by a psychiatrist would be appropriate.
Ms Nikki Burden and Ms Janette Ash, Recovre
136Ms Nikki Burden, vocational consultant, and Ms Janette Ash, occupational therapist/management consultant, provided a report outlining various jobs which may be appropriate for Mr Kadhim.
137Ms Burden and Ms Ash, having reviewed the medical materials which they had been provided, made the very appropriate observation that the medical reports provide conflicting opinions as to Mr Kadhim’s work capacity. Under “Summary and Recommendations”, they said:
“The medical reports reviewed provide conflicting opinions as to Mr Kadhim’s work capacity, with some of the medical practitioners suggesting he can return to pre-injury duties and other practitioners indicating he is unlikely to have a work capacity due to his pain condition. Therefore, based upon his education, work history and transferable skills, the following work options may be suitable for Mr Kadhim to consider if he is deemed to have an appropriate capacity to return to work:
1. Product Assembler (ANZSCO code: 832211)
Upon completion of further training:
2. Forklift Driver (ANZSCO code: 721311)
3. Selected Truck Driving roles (ANZSCO code: 733111)”
(Emphasis added).
138As Ms Burden and Ms Ash acknowledge, the jobs outlined “may be suitable” if Mr Kadhim had the appropriate capacity to undertake them.
139The worth of this report is dependent upon my findings of fact and my conclusions in respect to Mr Kadhim’s medical conditions and consequential capacity.
What are my conclusions in respect to the various medical opinions?
140The starting point is that the VWA conceded that Mr Kadhim suffered a compensable injury as a result of the accident. Given the weight of the medical evidence, that was an appropriate (and perhaps inevitable) concession. That being said, the VWA maintained:
(a) the effect of any work-related injury had ceased;
(b) Mr Kadhim was deliberately malingering.
141Support for the VWA’s position is found primarily in the reports of Dr Lange and Dr Barton. Whilst both these occupational physicians did not consider Mr Kadhim had ongoing organic and work-related physical injuries, Dr Lange noted Mr Kadhim was suffering “psychiatric problems” and Dr Barton said Mr Kadhim had “mental health problems”.
142I do not accept the conclusions expressed by Dr Lange and Dr Barton in respect to Mr Kadhim’s physical injuries. I prefer in particular Dr Alhejaj’s evidence. I found his reports to be thorough and well-considered. Dr Alhejaj has had the benefit of observing Mr Kadhim over many years. I also gain comfort from the opinions of Mr Hartnett and Mr Lynch. While they have not assessed Mr Kadhim for some time, their contact with him was in their role of treating orthopaedic surgeons. Both considered Mr Kadhim’s knee problems to be sufficiently bad that surgical intervention was warranted.
143Of the medico-legal assessments, I note there is dispute in respect to the nature and extent of any ongoing organic knee problems. Mr Wong, Dr Mittal and Dr Slesenger all considered there was an organic basis for Mr Kadhim’s complaint. Mr Dunin and Mr Gale, while accepting Mr Kadhim suffered injury at the time of the accident, said that his current complaints are now due to a “pain state” or “chronic pain syndrome”. Each said such ongoing condition was related to the accident.
144Having considered the various medical opinions, I accept that there is an ongoing organic basis for Mr Kadhim’s complaint of knee pain and restriction. In particular, I accept the opinion of his treating general practitioner. I also find it persuasive that two experienced orthopaedic surgeons considered that Mr Kadhim’s knee injuries warranted surgical intervention.
145For completeness, I note that there was, in the course of the application, much debate about the swelling of his knees complained of by Mr Kadhim. Some, but not all, of the assessing doctors found swelling/effusion. I do accept that Mr Kadhim does suffer from intermittent swelling of his knees.
146I also note that Mr Kadhim was undertaking physically-demanding work for Campbellfield Concrete for a period of approximately fifteen months prior to the accident, and he was working a lot of overtime. There was no history in the medical records of any knee complaints prior to the accident. These observations are consistent with Mr Kadhim suffering trauma and injury to his knees in the accident.
147Moving now to Mr Kadhim’s psychiatric injury.
148The medical evidence overwhelmingly supports Mr Kadhim’s contention that he has suffered, and continues to suffer, a very significant psychiatric illness. Both Dr Alhejaj and Ms Marcus, who have treated Mr Kadhim for a long period of time, provide strong support. Dr Rigby, who provided psychiatric treatment until the funding was terminated, also provided Mr Kadhim with support. Dr Rigby felt that Mr Kadhim’s prognosis was poor.
149Associate Professor Damodaran, who assessed Mr Kadhim for the VWA, accepted that Mr Kadhim was suffering psychiatric injury and said that the short-term prognosis was quite guarded. Dr Serry, who assessed Mr Kadhim on behalf of his solicitors, said that Mr Kadhim remained very symptomatic and he also considered that the prognosis was guarded. While not in his area of specialty, Mr Dunin considered Mr Kadhim’s psychiatric injury precluded him from working.
150I accept, based on the medical evidence:
(a) that Mr Kadhim continues to suffer from pain and restriction in his knees which is organically based and which is consequential to the accident;
(b) that Mr Kadhim continues to suffer a significant psychiatric condition for which the prognosis is guarded.
Does Mr Kadhim continue to suffer work-related injuries?
151Based on my analysis set out in this judgment thus far, I accept:
(a) That prior to the accident Mr Kadhim was undertaking physically-demanding work as a machine operator/driver. He had been undertaking this work for approximately fifteen months;
(b) After the accident, despite suffering ongoing pain and restriction in his knees, he endeavoured to continue working;
(c) Ultimately, Mr Kadhim was unable to cope with the ongoing demands of his job. He ceased work in September 2018. Up until that time, he had been receiving conservative medical treatment;
(d) At the time Mr Kadhim ceased work, he was suffering not only bilateral knee problems but a worsening psychiatric illness;
(e) There is an organic basis for Mr Kadhim’s past and current complaint of bilateral knee pain and restriction;
(f) That the psychiatric distress which Mr Kadhim suffers is very significant and impacts upon his presentation;
(g) That both Mr Kadhim’s physical injuries and psychiatric injuries are ongoing;
(h) That Mr Kadhim is not deliberately malingering.
Are the consequences to Mr Kadhim by reason of his injuries “serious”?
Mr Kadhim’s psychological injuries
152I shall deal firstly with the psychiatric injury. Mr Kadhim said that this was the key focus of his application. For Mr Kadhim to satisfy the test, his psychiatric injury must be “severe”.[27]
[27]See for example Mobilio v Balliotis [1998] 3 VR 833 and Transport Accident Commission v Katanas [2017] HCA 32
153I accept that Mr Kadhim’s psychiatric injuries are severe. I do so for the following reasons:
(a) I do not accept that Mr Kadhim’s credit has been impugned;
(b) I accept that the overwhelming weight of the medical evidence is that Mr Kadhim has suffered, and continues to suffer, a very significant psychiatric injury;
(c) I considered Mr Kadhim’s evidence and his presentation whilst giving oral evidence to be consistent with the assessments and observations of Dr Alhejaj, Dr Marcus and Dr Serry;
(d) I accept, by reason of his psychiatric state, Mr Kadhim does not currently have the capacity to return to either his pre-injury or suitable employment on a reliable or consistent basis;
(e) While Associate Professor Damodaran considered that Mr Kadhim was able to undertake 20 hours per week of work, I do not accept that Mr Kadhim, as he presented to the Court, and given the balance of the medical opinion, has that capacity. I prefer the opinions of Dr Alhejaj, Dr Marcus and Dr Serry. Indeed, there is also support for this contention provided by Mr Dunin;
(f) I accept that Mr Kadhim is a man who is suffering very significant psychiatric distress. I accept that, as well as impacting him for work, his psychiatric distress impacts on his day-to-day activities and his enjoyment of life. I accept that he suffers the psychiatric consequences set out in paragraph 59 of this judgment;
(g) While Associate Professor Damodaran considered there may be scope for improvement in Mr Kadhim’s psychiatric condition into the future, he qualified that as being contingent upon Mr Kadhim’s pain symptoms being managed and Mr Kadhim being able to secure alternative employment. Dr Serry considered the prognosis to be guarded, given the persistence of both physical and psychiatric symptomatology. That was consistent with Dr Alhejaj and Dr Marcus. I do not accept Associate Professor Damodaran’s qualified opinion as being realistic at the present time or into the foreseeable future. I accept that this injury is, for the purpose of this application, permanent;
(h) I accept that, by reason of his psychiatric injury, Mr Kadhim has no current work capacity. I accept that Mr Kadhim has a loss of greater than 40 per cent of his pre-injury earnings. I accept that Mr Kadhim’s impaired capacity for employment will, by reason of his psychiatric injury, persist into the foreseeable future.
Mr Kadhim’s physical injuries
154The assessment of the consequences flowing from Mr Kadhim’s knee injuries is more difficult.
155While I accept that Mr Kadhim does have an organic basis for his complaint of pain and restriction in both his right and left knees, I have to consider the consequences flowing from each of these injuries independently, and I must disentangle any psychiatrically-based pain state or syndrome.
156Mr Kadhim said that his right knee was worse than his left. I shall deal with that injury first.
The right knee
157I was assisted in my assessment by the analysis and disentanglement undertaken by Mr Wong and Dr Mittal.
158Firstly, I accept that Mr Kadhim does suffer the restrictions set out in paragraphs 54 to 58 of this judgment.
159Secondly, in matters such as this, often there is evidence which establishes that a claimant has retained a significant level of function which must be weighed against the alleged consequences.[28] This is not one of those cases. In particular, I do not accept that the film established Mr Kadhim has a capacity beyond that set out in his evidence.
[28]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
160I accept that the pain and suffering consequences set out by Mr Kadhim in paragraphs 54 to 58 do satisfy the “very considerable” test.
161I also accept that Mr Kadhim is not presently, nor will he be into the foreseeable future, capable of either his pre-injury work or suitable work by reason of his right knee injury. In coming to this conclusion, I am particularly assisted by the opinions of Dr Alhejaj, Mr Wong and Dr Mittal.
162For completeness, I refer to the report of Ms Burden and Ms Ash. As I have previously noted, their opinions were qualified by reference to medical assessment and opinions. I do not accept that the jobs outlined by them are within Mr Kadhim’s current capacity or his capacity into the foreseeable future.
The left knee
163In respect to Mr Kadhim’s left knee, I reach similar conclusions to those reached in respect to his right knee.
Conclusion
164In the circumstances, Mr Kadhim is granted certificates for both pain and suffering and economic loss for:
(a) his psychiatric injury;
(b) his right knee injury;
(c) his left knee injury.
165I will hear the parties in respect to the question of costs.
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