Kalinic v Acron Engineering Pty Ltd
[2012] VCC 1052
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00792
| JOSIP KALINIC | Plaintiff |
| v | |
| ACRON ENGINEERING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 June 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
CASE MAY BE CITED AS: | Kalinic v Acron Engineering Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1052 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the left leg – disfigurement – non-organic factors – Chronic Pain Syndrome – psychiatric impairment – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dordev v Cowan & Ors [2006] VSCA 254; Ingram v Ingram & TAC (1996) 2 VR 652; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards with Mr P Montgomery | Victorian Compensation Lawyers |
| For the Defendants | Ms M Britbart | Herbert Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 28 August 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left leg.
5 The plaintiff also beings this application pursuant to clause (c) in relation to a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
7 Winneke P, in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
8 I accept that a Chronic Pain Syndrome can result in an impairment under sub- paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovskav Socobell Oem Pty Ltd [2005] VSCA 227.
9 The plaintiff also brings an application pursuant to clause (b) for a permanent serious disfigurement of his left leg.
10 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. Dr Caric, the plaintiff’s general practitioner, was required to attend for cross examination. In addition, the plaintiff relied upon an affidavit sworn by his wife, Ana Kalinic, on 23 May 2012, and an affidavit of a friend, Ana Martinovic, sworn 23 May 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
11 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
12 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
13 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
14 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
15 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
16 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
17 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
18 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
19 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
21 The plaintiff is presently aged fifty one, having been born in Bosnia in March 1961. He migrated to Australia in around 1996 and is married with three adult children.
22 The plaintiff had limited schooling in Bosnia and then completed a fitting and turning apprenticeship. He has inadequate English speaking and writing skills and generally requires an interpreter.
23 In or about January 2002, the plaintiff commenced employment with the first defendant on a casual basis and then became fulltime.
24 In examination in chief, the plaintiff described how he loved working with steel. He came from “a city of steel” and was “born with it”. When he came to Australia he never imagined he would find such a nice job.
25 The plaintiff’s hours with the first defendant varied, but were not limited to thirty eight hours per week, plus overtime. He generally earned $945 gross per week plus overtime. His work involved fitter and turner duties including, but not limited to, machining and treating large pieces of metal.
26 Prior to working with the first defendant, the plaintiff was employed by Lola Engineering in a similar capacity.
27 In the past, the plaintiff experienced transient episodes of high blood pressure, for which he received treatment, but that condition did not cause any significant interference with his work capacity or his ability to engage in normal activities.
28 On or about the said date, whilst lifting and turning a two metre diameter stainless steel metal plate with a crane, the plate slipped out of the crane’s clamp and fell about ten centimetres, landing on the plaintiff’s left leg (“the incident”).
29 Following the incident, the plaintiff was transported by ambulance to the Western Hospital (“the Hospital”), where he underwent surgery.
30 Initially, the plaintiff was under the care of his general practitioner, Dr Vladimir Vizec. There was a further admission to the Hospital in April 2008 and also in November 2008 after the wound became infected.
31 The plaintiff also consulted Dr Blombery, consultant vascular physician, and had psychological counselling from Dr Rahmanovic.
32 On or about 6 December 2010, the plaintiff was admitted to The Avenue Hospital and underwent an epidural Clonidine morphine infusion under the management of Dr Blombery.
33 On about 6 June 2011, the plaintiff was admitted to The Avenue Hospital and underwent an intravenous Lignocaine Ketamine infusion.
34 Since the incident, the plaintiff has taken medication including, but not limited to, Lyrica, Endep, Panadeine Forte and Panadol. These medications afforded minimal transient benefit in relieving his constant, though varied, leg pain. The plaintiff’s doctors have previously advised him of the side effects of strong painkilling medication after he developed symptoms of digestive upset, constipation and pain.
35 The plaintiff now takes two Endep per day, one Lyrica, one Cymbalta and Panadeine Forte and Panadeine when he needs it. He continues to wear a compression stocking on his left lower leg.
36 The plaintiff currently is regularly treated by Dr Caric, general practitioner, following the retirement of Dr Vizec. He has continued to seek treatment from Dr Blombery and also Dr Rahmanovic at regular intervals.
Symptoms and Pain
37 When he swore his first affidavit in October 2010, the plaintiff had symptoms including, but not limited to, varied levels of pain and swelling in his left ankle and a feeling of numbness in the vicinity of the swelling. He typically wore a support stocking on his left leg for protection and to reduce swelling. Wearing the stocking was often a source of embarrassment for him.
38 As a result of his injury, the plaintiff had a very significant scar about twenty centimetres in length on his lower leg. He felt embarrassed about it and would typically avoid wearing shorts because of it. He felt constantly concerned the skin around the scarring would break if it was knocked.
39 The plaintiff deposed in May 2012 that he continues to experience constant, though varied, pain in his left leg, with his left ankle and leg continuing to swell. He also notices a feeling of numbness in the left leg.
40 The plaintiff’s scar continues to be itchy, painful and sensitive and he typically wears a supportive stocking on his left leg for protection and to reduce swelling. His left leg pain is worse in cold weather.
41 In examination in chief, the plaintiff described constant leg pain which fluctuates. He experiences a sort of stabbing and needling pain which is variable and sometimes very strong. He has had occasional swelling in his ankle. His wound burns and is itchy.
42 The plaintiff confirmed his leg always felt cold and it hurt when he was walking or standing.
43 The plaintiff continues to experience constant though varied feelings of stress, anxiety and depression as a result of his work injury.
44 The injury has negatively affected the plaintiff’s relationship with friends and family. Since the injury, he tends to be upset and is difficult to be around and the impact on his relationships has been of great concern to him.
Work after the Incident
45 The plaintiff ceased work for about four months as a result of the incident injury.
46 In about January 2008, he returned to work on modified duties for four hours a day, five days a week, including, but not limited to, operating smaller machinery and handling and treating pieces of material no greater than 200 kilograms in weight.
47 In April 2008, the plaintiff commenced full time normal duties. He coped with that work for a week until he developed an infection in his leg.
48 In cross examination, the plaintiff agreed Dr Vizec certified him fit for work at that stage. The plaintiff explained there was a lot of pressure on Dr Vizec to send him back to full time work after Dr Vizec received a letter from the WorkCover doctor. Dr Boccola at the Hospital also provided certificates at that time.
49 In cross examination, the plaintiff agreed that when he saw Dr Vizec in May 2008, he told him that he was managing with normal duties.
50 In June 2008, the plaintiff reported aching in his left leg after standing all day.
51 In July 2008, there was occasional discomfort in his left leg and the plaintiff was anxious about a breakdown of the wound. The plaintiff was then working full time.
52 The plaintiff explained that whilst back at work, very often his wound was bleeding and something was leaking out of it. The plaintiff did not go to the doctor every time that happened.
53 When the plaintiff saw Dr Vizec twice for unrelated problems in August 2008, he agreed that he may have told Dr Vizec his leg was alright
54 The plaintiff was then taking a number of tablets which he had been given at the Hospital, including Panadeine Forte, Panadeine and antibiotics.
55 The plaintiff agreed he did not go back to Dr Vizec until November 2008 to talk about his leg pain. He continued working in pain because he was forced to, and intended to last at work just as long as he could walk. He had a house and a mortgage. He had to feed three children and he was adamant he would work “until [his] leg fell off”.
56 The plaintiff had pain whilst working until November 2008 but somehow he was able to last and put up with the leg pain. It was very precise work and not an easy job and he had to stand and think.
57 In the months leading up to November 2008, the plaintiff took all his sick leave and did not work normally and was resting his leg. He always had a problem in that period.
58 The plaintiff deposed that in about November 2008, his employment with the first defendant was terminated after he was forced to cease work due to a repeat infection in the wound from his initial work injury. The plaintiff confirmed the November infection healed after about two weeks. After each infection, the plaintiff’s leg was more and more painful.
59 The plaintiff confirmed he made a mistake at work one day in November 2008 which he explained was because of the pain he was suffering. That day, the plaintiff also told Mr Mapperson he had to go to the doctor. Mr Mapperson was angry with the plaintiff and told him not to come back to work. He never told the plaintiff he expected him to return to work.
60 The plaintiff’s employment was terminated following that mistake. He was not made redundant.
61 In cross examination, the plaintiff disagreed that by December 2008 he was in a state where he could have returned to work. He disagreed that, by about March 2009, he could go back to do some work as he was still in pain.
62 When it was put to the plaintiff that during 2009 Dr Vizec continued to certify him fit for full time work with the ability to change his posture, the plaintiff said that was Dr Vizec’s opinion. The plaintiff told him his leg was better because it had improved but then said in cross examination that it was not okay at that time.
63 In cross examination, the plaintiff agreed that maybe he could have tried his trade in May 2009 if that was what Mr Kierce noted at that time, but he could not really remember.
64 The plaintiff was shown a number of certificates from Dr Vizec dated from May to July 2009. The plaintiff agreed that he was not getting active treatment during that time but he was taking tablets prescribed by Dr Vizec. He was “still really fighting for [his] leg” and was scared of developing another infection. The plaintiff asked rhetorically whereabouts could he have found that sort of work at that time.
65 The plaintiff did not know the circumstances in which his general practitioner started to certify him totally unfit for work. The plaintiff had pain in 2009 and his leg was always hurting but at times the pain was much stronger.
66 The plaintiff initially agreed that he was going pretty well in August 2009, as Dr Vizec had noted. He agreed sometimes he was walking normally. However, the plaintiff, in answer to further questions, said his leg was always hurting at this time.
67 In my view, despite the assistance of an interpreter, the plaintiff had some difficulty with this line of questioning, and his answers in this regard therefore do not particularly assist me.
68 The plaintiff agreed that in about August 2009, he was upset at the WorkCover process and he was upset about his pay.
69 The plaintiff did not think Dr Vizec was very helpful in treating his leg so he sought expert referral. However, it was somewhat unclear how the plaintiff ended up seeing Dr Blombery. The plaintiff thought he was already being certified as having no work capacity before he first saw Dr Blombery in September 2009.
70 The plaintiff agreed that on the first visit to Dr Blombery, he told him his pain was constant but variable. He confirmed he complained to Dr Blombery of problems with colour change in his leg. He also agreed that he had some short improvement after the treatments with Dr Blombery.
The Plaintiff’s Attitude regarding Further Work
71 The plaintiff deposed in October 2010 that he was frustrated by his injuries and incapacity and had tried hard to stay at work with the first defendant, with whom he had been employed for six years. His job was demanding but he enjoyed it and he would have liked to have continued working in a similar position indefinitely until retirement. It was extremely frustrating for him that he had been forced to stop working as a result of his injury and it had caused a lot of upset and disruption in his life, as he previously was quite healthy and active and able to support his family.
72 The plaintiff was then keen to return to work and made every reasonable effort to do so. However, following each return, he was forced to stop due to developing an infection from his initial injury. He was very disheartened when those attempts were adversely affected by the state of his injury.
73 The plaintiff felt his employment history and inadequate English speaking skills had severely limited his ability to branch out into other types of work that might be more within his physical capabilities. He felt suited to work in his trade which primarily involved manual labour and did not require strong English skills. He was very disappointed that, as a result of his injury, he was no longer able to undertake that type of work and that often left him feeling useless and upset.
74 The plaintiff recently deposed his inability to return to a normal working life is of great concern to him and has resulted in a loss of his enjoyment of life. He was proud to be a hardworking and productive member of a team at work and was respected by his family as a provider and contributor, but can no longer work as a consequence of his work injury. He continues to feel depressed and upset at the change in circumstances and, in particular, by the very significant pain and restriction he experiences as a result of his injuries.
75 The plaintiff had not been able to recommence his trade or work with any other employer as a result of his injury and was concerned he would be unable to find suitable employment considering his reduced function.
76 The inability to work and the very significant diminishment of his physical capacities and endurance struck at the core of the plaintiff’s identity and sense of self worth. He felt like a liability to those around him and he had lost many friends and social contacts compared to the working family man he was before.
77 The plaintiff found it difficult, as of October 2010, to find any alternative work that accommodated his injury. Combined with his lack of formal education and poor English and writing skills, he felt his trade was all he could do as he did not regard himself as suitable for retraining into an alternative career, even if his injury resolved sufficiently.
78 Although the plaintiff was very keen to return to work in his trade and had intended to work until at least the age of sixty five, he then had no capacity to return to pre-injury duties or other employment reasonably available to him given his age, education, background and prior work experience.
79 The plaintiff recently deposed that his prospects of securing and being able to stay in employment in the open labour market were minimal. Had his employment not been terminated, he did not believe that he would have been able to return to work due to his pain and restriction. He was upset by the cutting short of his work life, as he considered himself a good worker and enjoyed leading a normal, productive and respectable working life.
80 The plaintiff recently deposed that he had made every reasonable effort to participate in occupational rehabilitation and the return to work initiatives of the employer and WorkCover. The report of Rehab Factor dated 4 June 2009, WorkCover’s vocational provider, was prepared without the specific input of the plaintiff’s treaters.
81 The plaintiff believes, as a result of the physical consequences of his injury, he would have problems with being regular, reliable, attentive and being able to perform all of the required duties of the positions listed, such as forklift driver, warehouse worker, plant machine operator and process worker.
82 The plaintiff believed he would not be suitable for a forklift driver role as it would be outside his physical capacity. For instance, there would be physical work as well as generally working fulltime, being reliably attentive and spending a prolonged time sitting and using his leg.
83 The plaintiff could not do his trade because he always had to be on his feet and there was no sitting.
84 The plaintiff did not think he would not be suitable to be a plant machine operator because it would be outside his physical capacities. He would not be suitable for work as a warehouse worker or as a process worker.
85 The plaintiff could not work as a plant operator because of the concentration involved. Both his mental and physical condition meant he could not do this job. Although he was able to walk for lengthy periods and do jobs around the house, the plaintiff did not believe he would be able to go back to work.
86 The plaintiff would not be able to work as a warehouse worker because the job involved a lot of lifting and he had to stand for a long time. Standing all day at a process line would be the hardest. With a job where he could change his posture, he did not know when his pain was going to turn on him.
87 The plaintiff would have difficulty working because of both his physical and mental conditions. His leg hurt “either it’s itching or something and it’s non stop” and he could not think.
88 The plaintiff explained he had made only one enquiry about work. In about 2009, he went for a forklift job in Laverton. He told the potential employer he would get a ticket, but when the plaintiff saw the nature of the duties, he knew he could not cope.
89 If the plaintiff could get work he would be the happiest man in the world and feel like he had won Tattslotto.
90 The plaintiff did not believe he could do a light job for a few hours a day as he would be unreliable. He confirmed he sometimes gets stabbing pain; burning pain, and he does not know when it will come on. If it came on at work he could not continue working.
91 The plaintiff has no other skills other than his trade. He confirmed he had always been a hard worker whilst in Australia and had a good work history, working overtime with the first defendant.
92 The plaintiff confirmed he had not applied for any job other than the forklift job. He is not prepared to even have a go at another job because of his pain.
93 The plaintiff could not engage himself to do any rehabilitation in his present state.
94 The plaintiff confirmed that, but for his injury, he would have remained in active employment until at least the age of sixty five.
Sleep
95 The plaintiff deposed in October 2010 that his injury had a very significant impact on his sleep. At night, he typically experienced cold sensations in the left leg which caused him to wake. He tended to pace around the house to warm up his leg and he often took medication to try and get back to sleep, but that was not always effective. The plaintiff’s difficulties in this regard continue.
Self Care
96 In October 2010, the plaintiff deposed to very significant problems with self care and personal hygiene, with his ability to bathe, groom and dress being limited by pain. He could do those things by himself but with increasing difficulty. Tasks took far longer than they did prior to the incident and that situation left him feeling frustrated and older than he would otherwise feel.
Activities and Sport
97 In October 2010, the plaintiff deposed that, as a result of the injury, he also generally experienced pain and difficulty with intrinsic physical activity, such as standing for prolonged periods and walking long distances. He typically noticed increased swelling of the left ankle if he stood or walked for an extended period and using stairs caused great difficulty, thus, living in a two storey home, sometimes he had to sleep downstairs because it was too difficult to go upstairs.
98 The plaintiff was unable to participate in individual or group activities, sports and hobbies, and unable to be as active with his children as he would have liked, with activities such as running, jogging or exercising. He used to be very active before the incident and enjoyed cycling and playing soccer and cricket as they were things he could do with his family, but he was distressed and frustrated because he was no longer able to do them.
99 Prior to his injury, the plaintiff used to enjoy helping the family with cooking at home, basic home and car maintenance, gardening and taking the rubbish in and out. He did his best to help his family, but he was now quite dependent on them to do those activities which he cannot manage independently, in addition to previous unrestricted and quite heavy manual labouring tasks at work. That situation often left him feeling useless, frustrated and much older. On his return to work, he found himself doing less and less at home, saving himself for the rigours of work.
100 The plaintiff continues to experience very significant problems with the performance of intrinsic and functional physical activity, as well as his mobility. He tries to remain as active as possible, but finds some days are particularly bad, and he tends to pay for increased activity with more pain afterwards despite medication and treatment.
Current Activities
101 The plaintiff continues to believe the onset of his injury has had a negative impact on his enjoyment and outlook on life, with him being no longer as positive and happy as he used to be. Now that he is restricted and in very significant pain, he feels he has lost the enjoyment he used to derive from physical activities, such as going to soccer matches and playing games and soccer with his children.
102 Since the incident, the plaintiff has been in significant pain and often feels there is nothing worth looking forward to. On those days, he tends to be upset and depressed and tends to think more about how he might aggravate his work injury rather than looking forward to any activity.
103 Home activities continue to be very significantly affected. The plaintiff remains dependent upon the assistance of others with meal preparation, cleaning, laundry and outdoor activities he was previously able to perform independently. He continues to feel frustrated and embarrassed by his predicament and feels like a burden and much older than he should.
104 As a result of his injury, the plaintiff tends to drive short distances only and avoids driving for prolonged distances unless it is really necessary, as it tends to cause increased pain and discomfort and he feels less sure of himself when reacting to an emergency because he tends to be distracted by pain and is generally less able to concentrate due to pain and lack of quality sleep.
105 The plaintiff’s ability to engage in sexual activity is also a frustrating consequence of his work injury and he feels less adequate as a man and worries about the effect of his injury on his relationship.
106 The plaintiff is worried that he will not be able to interact with his grandchildren when his children get married.
107 Further, the plaintiff’s ability to engage now actively with his children has been significantly affected, as has his ability to socially participate with friends and family. It has also affected his religious participation as he has reduced the frequency of attendance at church due to pain in his leg when he has to sit or stand for long periods. He was concerned his wife’s attendance without him meant they were drifting apart.
108 On his general practitioner’s advice, the plaintiff has tried to be as active as possible within significant physical limitations arising from his work injury. He tries to walk as and when able, but his tolerance for distance can vary from time to time.
109 In cross examination, the plaintiff was asked in some detail about his walking tolerance. He could walk up to an hour very slowly and he then feels pain in the lower limb, the strongest pain being on the scar. The muscle and the joints also hurt. The more he walks, the more it hurts, and his pain increases. The plaintiff then has to sit down.
110 Whilst the plaintiff had told various doctors he could only walk for thirty to forty five minutes, in cross examination, he said the maximum he could walk was one hour slowly.
111 The plaintiff walked every day for forty five minutes, a situation that was not much different to the half hour he described to Mr Jones in February 2011. The plaintiff then said he walked two or three times a day for forty five minutes when he could.
112 The plaintiff took his daughter to school and sometimes he took his dog for a walk. It now takes him forty five minutes to walk a distance which he previously walked in half an hour. He meets friends, goes shopping, and does errands. He often walks with a friend who is suffering from cancer.
113 The plaintiff confirmed he could do shopping and mow the lawn. He was not really a cook. He could sometimes do the laundry and his wife did most of the cleaning.
114 The plaintiff confirmed it was sometimes painful to sit for too long. If he stood for too long, say more than half an hour, the plaintiff tended to lean on his right leg and then it hurt.
115 The plaintiff was then shown a number of surveillance films.
116 The first film of about forty five minutes’ duration was taken on 29 June 2011 (Exhibit 1).
117 The plaintiff agreed he was shown going to the supermarket and then returning home. After half an hour or so, he was shown taking the dog for a walk. He explained that he was walking a bit slower than he used to.
118 When it was suggested to the plaintiff he had left home at about 9.39 am and had been walking for nearly an hour, he said he would have been sitting down somewhere on the way as there were lots of seats. He was then shown with two friends sitting at a table. Later, the plaintiff was shown walking the dog with his friend. The plaintiff agreed his walking was not restricted and said this was because he had been sitting for an hour having a coffee.
119 The second film of sixteen minutes’ duration was taken on 8 November 2011 (Exhibit 2).
120 The plaintiff was shown wearing shorts, walking with his elderly friend, whom the plaintiff explained has cancer. The plaintiff walked for forty minutes before sitting down outside a supermarket. The plaintiff agreed he was walking normally but he now needed forty five minutes to an hour to cover the distance he used to walk in half an hour. He then walked home, which took him about twelve minutes.
121 The plaintiff was wearing a compression bandage in the film which helped when his leg was cold, and also reduced the swelling.
122 The plaintiff explained that sometimes he had difficulty getting up from a seated position. He agreed sometimes he was active going for a walk, walking to the shops, seeing friends or going shopping. He does sit and have a coffee sometimes but does not like to leave the house. He agreed there were some days when he was out and about.
123 Film of just over an hour’s duration was shown of the plaintiff on 10, 14 and 16 May 2012.
124 On the first date, the plaintiff attended Dr Anstee, a plastic surgeon in Kew. The plaintiff walked for twenty five minutes from the Hawthorn station to Dr Anstee’s rooms. He then walked back to the station, waited on the platform for five minutes and then caught the train.
125 The two minutes of film taken on 14 May 2012 was of no particular significance.
126 There was fifty five minutes of film shown of the plaintiff on 16 May 2012.
127 At 8.39 am, the plaintiff was shown walking to the bakery and then home again.
128 The plaintiff had an appointment with Mr Jones in Fitzroy later that day. At 9.16 am he left home and walked to Sunshine Station, a distance of four kilometres, taking forty four minutes.
129 The plaintiff was shown standing on the train. He stood for twenty to twenty five minutes. He then walked from Parliament Station to Mr Jones’ rooms – about a forty minute walk. After the appointment, the plaintiff walked to Flagstaff Station, again took the train and then walked the four kilometres back to his house, via the bakery. The plaintiff arrived home at 2.19 pm.
130 The plaintiff said he “cannot go if [he] does not walk”- he has never “learned the city”. He explained he did not catch a tram because he did not know how to get the tram. The film ended just after 2.12 pm.
131 The plaintiff agreed he was shown walking a considerable distance that day. He explained that walking for a long time was different to working. He confirmed he could walk but he could not work in pain.
The Plaintiff’s Earnings
Financial Year Employer Gross Income 2003/2004 Trustee for the Mapperson Family Trust $42,742 2004/2005 Trustee for the Mapperson Family Trust $51,067 2005/2006 Trustee for the Mapperson Family Trust $52,133 2006/2007 Trustee for the Mapperson Family Trust $59,801 2007/2008 Trustee for the Mapperson Family Trust
and including weekly payments
$49,003 2008/2009 Trustee for the Mapperson Family Trust
and including weekly payments
(Trust)
(VWA)
$51,102
($26,954)
($24,148)
2009/2010 WorkCover benefits $1,012
Lay Evidence
132 The plaintiff’s wife, Ana Kalinic, swore an affidavit on 23 May 2012.
133 Mrs Kalinic confirmed that prior to the work injury, the plaintiff was active, capable and sociable and used to enjoy activities with the children and friends. He was a fit man, whom she would have expected to keep working until retirement age.
134 Mrs Kalinic could recall the incident and the subsequent infections and the plaintiff coming home from work in tears. Since the injury, she has continued to observe that the plaintiff experiences very significant pain in his left lower leg, foot and ankle. She has seen him grimacing and in pain or crying out when he experiences sharp pain. He tends to experience exacerbated pain when twisting or bending, putting on his shoes, stretching, walking for an extended period or sitting down for prolonged periods of time and when standing up after sitting. He spends much of his time sitting or lying down in different poses in an attempt to minimise his left leg pain. She has had to assist him with standing up when his pain has been particularly bad. Cold weather exacerbates the plaintiff’s pain.
135 The plaintiff has difficulty performing basic care tasks such as putting on his clothes, cutting his toe nails and drying himself, and sometimes she has to help him.
136 As a result of his left leg pain, the plaintiff is restricted in his ability to do basic household tasks such as cleaning or mopping floors. She tends to do most of the housework, including cooking most meals and the majority of washing and cleaning. The plaintiff tries to help, but when he does he suffers from exacerbated pain so she tends to do most of the duties herself.
137 The plaintiff experiences trouble sleeping and is often up at night, and he is stiff and tired in the morning and has trouble moving. The plaintiff’s mobility is very restricted. Due to his injury, the plaintiff tends to make short trips and she tends to do the majority of shopping.
138 The plaintiff is generally pessimistic about the future, with few recreational or social activities, and tends to become pre-occupied by his pain and worried about the future. He now tends to avoid socialising and they no longer meet with friends to sing. The plaintiff now tends to avoid attending church and soccer matches and playing active games with the children.
139 Mrs Kalinic believes the plaintiff is frustrated and angry due to very significant pain and restriction. He gets upset, dwelling on his restrictions, and becomes particularly upset about his inability to interact with his family, particularly the children. The plaintiff has a tendency to get angry with his friends and family and lose his temper due to his frustration. As a result of his injury, the plaintiff suffers very significant pain and restriction, which prevents him from deriving a lot of enjoyment in his life.
140 Ana Martinovic, a friend of the plaintiff, swore an affidavit on 23 May 2012. She has known the plaintiff for about fifteen years.
141 Before the incident, she used to see the plaintiff about two or three times a week as their children were friends. They saw each other at their sons’ soccer matches and also visited each other’s homes.
142 Prior to the incident, the plaintiff was active and fit, attending soccer matches and playing soccer with his children. He was very social and enjoyed singing and going to dinner and parties. Since the injury, she has continued to observe the plaintiff’s pain. She can tell by the look on his face and he also complains to her of his pain.
143 Ms Martinovic has seen the plaintiff take medication. He tends to experience exacerbated pain when sitting for a long time, or standing up after sitting, and when going upstairs. He tends to change his position frequently to minimise the pain he experiences in his left leg. She can recall the plaintiff often telling her he has trouble sleeping due to leg pain.
144 Since the incident, Ms Martinovic does not see the plaintiff as much and has observed he is no longer as interested in socialising with friends due to the pain. She has observed that he has difficulty with helping out around the house and has exacerbated pain when he does so and he just tends to sit quietly after trying to help out.
145 She has not seen the plaintiff doing as many activities as before, such as going to the beach, playing soccer with friends and family, going to parties and social gatherings. Since his injury, she cannot recall him doing those activities. She has noticed that the plaintiff tends to go to church a lot less and for much shorter times.
146 The plaintiff is no longer as active as he used to be and seems to be a completely different person, with his self-esteem having taken a tumble. He tends to get upset more easily about his change in lifestyle. He has lost many of his friends and much of his enjoyment of life and is no longer as active and interested in socialising as a result of his pain.
Treating Doctors
147 In an undated report, Dr Boccola of the Hospital, wrote to the plaintiff’s employer, advising the plaintiff’s wound had been progressing very slowly, with ongoing swelling and night pain. Ultrasound had shown his leg veins to be normal. His impression was that the plaintiff may have sustained an injury to the arterial supply to his leg and he would have further scans to elucidate that. An examination had been arranged with a surgeon, Dr Pohl.
148 It was noted the plaintiff was currently standing for four and a half hours at work each shift. This was limited by increasing swelling in his leg. The employer was advised that if they were contemplating extending this period of time, the doctor suggested medical assessment by an occupational health and safety specialist.
149 Dr Boccola wrote to CGU in August 2008, advising the plaintiff was assessed in Plastic Surgery Outpatients on 17 March 2008 and it was agreed his workload could be increased to standing for eight hours a day.
150 As a result of that trial of increasing duties, the plaintiff had an acute exacerbation of his chronic leg injury. The plaintiff was admitted to the Hospital on 2 April 2008 for six days due to erythema, open wound and swelling and pain from his left lower leg. Dr Boccola noted that, despite Dr Battlay’s finding on examination on 17 March 2008 when he stated the wound was fully healed, the plaintiff had never fully recovered from the initial injury due to his ongoing swelling. Dr Boccola noted the swelling had never been noted by the Hospital to have resolved.
151 Dr Boccola advised the swelling and commencing work at eight hours a day was what was expected to be the cause of the plaintiff’s recent exacerbation and re-admission to Hospital. Since discharge, some swelling remained. The plaintiff, however, had minimal pain and was ready to trial going back to work on what Dr Boccola recommended was four hours initially.
152 Considering the ongoing swelling, Dr Boccola thought the plaintiff would need follow up in the Hospital and physiotherapy. He reissued the plaintiff with another work certificate with amended dates.
153 On 4 May 2010, Dr Blombery wrote to CGU requesting the plaintiff be admitted to The Avenue Hospital for five days for an epidural clonidine morphine infusion, noting the plaintiff had been referred to him with features of a Pain Syndrome affecting his left leg.
154 Dr Blombery was provided with Dr Poppenbeek’s report by CGU.
155 In October 2010, Dr Blombery advised CGU he had spoken to the plaintiff’s doctor, who felt the plaintiff’s depression was under control. When he saw the plaintiff, Dr Blombery thought he did not seem to be unduly depressed, hence he wrote requesting the infusion proceed.
156 Dr Blombery reported on 10 April 2012, noting he had first seen the plaintiff on 3 September 2009 on referral from Dr Vizec.
157 The plaintiff then complained of intermittent discomfort in the left leg which was sometimes itchy and swollen. His leg tended to feel cold and he sometimes had to get up at night and move around. It had become blue and red and the pain tended to be worse when standing still.
158 On examination, there was a long superficial scar down the lateral side of the left calf with moderate tenderness over the area. The left foot and calf were one and a half degrees cooler than the right and there was a reduction of ankle movement. There was no allodynia.
159 Dr Blombery thought that the changes in temperature and colour of the leg in combination of features of ongoing pain, together with autonomic disturbance, was diagnostic of Complex Regional Pain Syndrome Type 1 (“CRPS”). He thought the plaintiff had fulfilled all the criteria for a diagnosis of that disorder.
160 Endep was initially prescribed by Dr Blombery to modulate pain perception.
161 The plaintiff next attended Dr Blombery on 8 October 2009, when some improvement was noted and the dosage of Endep increased and Epilim was added to the medication regime.
162 On the next attendance on 11 November 2009, Dr Blombery noted there had been some further improvement, although the plaintiff had been a little drowsy. Epilim was increased.
163 On the next attendance on 9 December 2009, Dr Blombery certified the plaintiff fit for light duties for ten hours per week, not involving weight bearing. He noted the plaintiff was sleeping reasonably and his pain appeared to be under somewhat better control.
164 When next seen on 3 February 2010, the plaintiff mentioned he had not returned to work as he was told by the employer there was nothing to do.
165 On re-examination on 22 April 2010, the plaintiff’s leg remained painful and swelled with activity and he was concerned with ongoing pain. On 22 June 2010, there was still ongoing pain, and Dr Blombery was waiting for approval for the epidural, which he thought was appropriate after the April attendance.
166 From 6 to 11 December 2010, the plaintiff was an inpatient at The Avenue Hospital where he underwent an infusion, during which he had a marked reduction in pain.
167 The plaintiff next attended Dr Blombery on 31 January 2011. The plaintiff then advised that there had been some minor improvement in his leg pain after the infusion but he had back pain radiating to his right knee which had persisted for two weeks after that procedure. Dr Blombery could not explain that pain.
168 The plaintiff was next seen on 1 March 2011, when his back had improved markedly but his leg had not really changed very much compared to before the infusion. The plaintiff still had ongoing pain and the possibility of an intravenous Lignocaine Ketamine infusion was raised.
169 Approval was received for that procedure and the plaintiff was admitted to The Avenue Hospital from 6 to 15 June 2011. The plaintiff tolerated it reasonably, although he developed side effects from a relatively low dose of Ketamine. His pain decreased markedly from six to one out of ten at the end of the infusion.
170 On re-examination on 18 July 2011, the plaintiff reported that pain had recurred after seven days back to its previous level. Dr Blombery then suggested increasing the dose of Panadeine.
171 The plaintiff re-attended on 18 August 2011, when he reported the area near the scarring was a little painful on the lateral side. However, Dr Blombery noted there was nothing obvious to find on examination.
172 Dr Blombery thought the plaintiff should have a trial of Lyrica rather than Epilim, which he thought might be more effective in terms of modulating pain perception.
173 There was a slight improvement on re-examination on 12 December 2011, and when last seen on 15 March 2012, the plaintiff remained on Lyrica and had ongoing pain in his left leg.
174 Dr Blombery concluded the plaintiff had ongoing features of CRPS Type 1 affecting his left leg. He now had fairly minor autonomic disturbance and Dr Blombery thought a lot of his pain was in the nature of a more non specific Pain Syndrome where there was sensitisation of pain in nerve pathways both in the periphery as well as in the brain and spinal cord, such that non painful stimuli became interpreted by the cerebral cortex as being painful.
175 Dr Blombery described such a Pain Syndrome as an organic disorder of pain nerve pathways, such as CRPS Type 1.
176 Dr Blombery thought the plaintiff had no capacity for pre-injury employment either now or in the future. He considered the plaintiff’s injuries had had a significant effect in terms of social, recreational and domestic activities and would continue to interfere with his enjoyment of life.
177 Having seen Dr Sutcliffe’s report dated 15 June 2012, Dr Blombery confirmed, on balance, the plaintiff had no capacity for his prior or suitable employment for the foreseeable future as a result of the CRPS Type 1.
178 Dr Caric provided a total incapacity certificate for the period 5 June to 2 July 2012 following an examination on 31 May 2012, in which he noted “no significant changes, persistent pain and minor swelling of the left ankle, no fully flexion”.
179 Dr Caric reported on 11 April 2012.
180 Dr Caric advised that despite complex treatment to the wound injury and an extended period of treatment, the plaintiff still felt pain and numbness in the left lower leg, with permanent skin scar and mild left foot swelling with mildly reduced dorsal flexion of the left foot, causing him a great frustration since not being able to endure prolonged standing, kneeling and squatting and in particular, not being able to go back to his old work.
181 On examination on 5 April 2012, Dr Caric noted the plaintiff still had minor swelling of the left foot dorsum, scar visible and was not able to do full dorsal flexion of the left ankle/foot compared to the right. He noted the plaintiff had been using painkillers over an extended period to reduce the feeling of pain in the left lower leg, consisting of Cymbalta, 60 milligrams; Endep, 25 milligrams; Lyrica, Mobic and Somac. Dr Caric noted the plaintiff was still frustrated he could not work.
182 Dr Caric thought it unlikely the plaintiff could return to unrestricted manual pre-injury employment due to his age, non speaking English background, previous education, prior work experience and in particular, the consequences of the work injury.
183 Dr Caric was not then able to give a time frame for the plaintiff’s psychological consequences following the injury. Dr Caric noted there was also an extended period of time with pain in the left lower leg and reduced ability to squat, kneel and endure prolonged standing position. All of that was an obstacle to remain in employment.
184 Dr Caric thought the physical consequences of the injury, namely pain, numbness, swelling and reduced mobility, would reduce the plaintiff’s capacity for recreational activities but mostly psychological consequences reduced his ability to engage in social activities. He considered the plaintiff’s domestic activity reduction was partially caused by physical and partly by psychological consequences.
185 Dr Caric thought the plaintiff’s prognosis was uncertain. He noted there was a possibility to discuss the prognosis for any of the plaintiff’s work-related injuries when the Court process would finish, and then re-assess the plaintiff’s condition.
186 Dr Caric diagnosed depressive symptoms and an Adjustment Disorder. He thought the plaintiff’s life had been greatly affected by the incident and his further life would never be like it was before.
187 In examination in chief, Dr Caric confirmed the plaintiff presently does not have a capacity for work. In his view, the plaintiff was at constant risk of having infection again because his peripheral circulation in the left leg is not as good as it was before the incident. Even a small injury such as a scratch to the plaintiff’s skin brought a risk for infection.
188 When Dr Caric has examined the plaintiff he has found minor swelling on the left ankle and the plaintiff cannot actually flex. He cannot stand because of the pain in his leg. Kneeling is affected and his mobility is reduced.
189 Dr Caric considered the plaintiff was not fit for work also because of the risk of infection, reduced mobility, pain and his mental state.
190 Prescription of Cymbalta continues. Dr Blombery recently increased the dosage of Panadeine. Since February 2012, Dr Caric has prescribed 15 milligrams of Mobic.
191 Dr Caric described how the plaintiff always has negative thoughts. The plaintiff thinks no one can cure him; he has the possibility of infection; he has family problems and is so unhappy as it is difficult to find another job. The plaintiff is too disturbed with thoughts that everything is against him and the system has ruined his life and he cannot help himself to become a breadwinner again.
192 Dr Caric explained that the plaintiff cannot actually sit normally as just a knock would cause a fresh infection and the whole frustrating cycle would recommence with hospitalisation and pain.
193 Dr Caric advises the plaintiff to walk five days a week if he is up to it.
194 In cross-examination, counsel for the defendant took Dr Caric through Dr Vizec’s notes from April 2008.
195 Dr Caric confirmed improvement in the plaintiff’s condition at various times between the infections and the certification for normal duties until November 2008, when there was a further infection.
196 Dr Caric confirmed that in March 2009, Dr Vizec noted that the plaintiff could walk and drive normally, although there was difficulty standing for periods.
197 On 16 March 2009 through to June 2009, certificates were provided by Dr Vizec for full time modified duties.
198 The note of 6 July 2009 set out the plaintiff was much improved.
199 Dr Caric could not argue with Dr Vizec’s views as to the plaintiff’s work capacity during that time but Dr Caric had not seen the plaintiff. Dr Caric agreed the note of July 2009 also set out that the plaintiff was subjectively well.
200 Dr Caric accepted that mention in the notes of various signs or symptoms were reports by the plaintiff rather than clinical findings. He agreed that as of August 2009, an improvement was noted in the plaintiff’s condition.
201 Having been taken through all the clinical notes, Dr Caric agreed there had been no occasion on which Dr Vizec had made a clinical finding to suggest a reason for the plaintiff’s symptoms until December 2009. Save for restriction of ankle movement observed at that time, there were no signs or symptoms observed by the examiner as opposed to complaints by the plaintiff.
202 In subsequent months, Dr Caric confirmed the lack of objective signs on examination. He agreed that there were no clinical signs other than some swelling in the ankle and limited ankle movement, mentioned on one or two occasions, to explain the plaintiff’s symptoms.
203 In early examinations by Dr Caric, the plaintiff did not mention any problems with his left leg.
204 Dr Caric could not explain when the total incapacity certificates were given from August 2009 rather than certificates for full time modified duties, as had previously been the case.
205 Dr Caric confirmed that if there was swelling or other signs on examination, he would have recorded them. What he had noted was problems with left ankle dorsiflexion – a limited range of movement in the left ankle. He attributed that to problems with circulation in the plaintiff’s leg.
206 The first note of swelling was made by Dr Caric on 5 April 2012, when he noted minor swelling.
207 The plaintiff has not required any help from Dr Caric with his sleep.
208 Dr Caric confirmed that on 9 February 2012, the plaintiff told him he could not get another job until his case finished. The plaintiff advised he was fed up with the WorkCover process and the system. He looked for another job, but was told until this process finished he would not be able to get another job. Dr Caric did not suggest the plaintiff had told him he was capable of working. The plaintiff had suggested he was looking for another job.
209 Dr Caric would support a return to work for the plaintiff and that would be beneficial for him financially and psychologically. However, he considered there was no job the plaintiff could do, even with restrictions and the ability to change posture.
210 Dr Caric confirmed on examination on 5 April, 3 May and 31 May 2012, minor swelling of the dorsum was noted and also the inability to flex fully.
211 Dr Caric did not really know about the plaintiff’s walking tolerance and the plaintiff had not discussed this topic with him. However, the plaintiff complained about pain whether he walked or not. Dr Caric advised the plaintiff against a sedentary lifestyle.
212 Dr Caric confirmed the plaintiff had a number of difficulties getting a job, including his limited education and cultural background. If he even knocked his leg just sitting, the plaintiff could have a problem and could scratch it even if not working.
213 Dr Caric agreed there had been no breakdown in the wound from the plaintiff doing other activities. He thought the plaintiff’s mobility problems were more to do with squatting and bending rather than walking. He confirmed the three occasions in the last two months were the only times there had been swelling and there apparently was not a problem with the plaintiff getting around. He thought the plaintiff would never be free of pain but said, “never say never” as to the chances of the plaintiff working in the future after he stabilised mentally.
214 In re-examination, Dr Caric confirmed he did not think the plaintiff was fit for suitable employment. He thought the plaintiff would always be distracted in terms of any re-education because of pain. In his view, it was not advisable for the plaintiff to go back to the pre-injury workplace or any physical job because he would be exposed to risk of injury.
215 The plaintiff was depressed because he thought he was viewed as a parasite.
216 Mentally, Dr Caric did not think the plaintiff could have worked. He doubted in the future there would be a job appropriate for him.
217 Psychologist, Kenan Rahmanovic, reported on 7 May 2012, having seen the plaintiff on referral by Dr Sulava for psychological assessment. The plaintiff’s chief complaint was that since the incident, he had become increasingly more depressed and withdrawn.
218 Kenan Rahmanovic diagnosed an Anxiety Disorder with Mixed Anxiety and Depressed Mood directly related to the work injury. It was noted the plaintiff had become disillusioned with his inability to work and that had had an impact on his frustration, tolerance and anxiety about his future.
219 Kenan Rahmanovic advised the plaintiff currently experienced sleep disturbance, poor memory, difficulties with organising and planning of behaviour, difficulties with concentration and social withdrawal. He was also having nightmares once or twice a week. The following day, he felt depressed and withdrew even more from family and society.
220 Kenan Rahmanovic thought the plaintiff’s psychological condition had stabilised as there had been no improvement or significant deterioration in his overall mental state in the past twelve months.
Medico Legal Examinations
221 Mr Felix Behan, plastic surgeon, examined the plaintiff in October 2011.
222 The plaintiff told Mr Behan that he was disturbed by recurrent infections in the injury site and the sensitivity of the scar caused him to flinch. He wore a compression bandage. He felt it difficult to manage young children and normal tasks at home and he had not returned to work. He no longer engaged in sporting activities and was now quite embarrassed by his evident deformity.
223 Mr Behan took a series of photographs of the scarring measuring 17 x 2 centimetres, which was situated over the anterolateral aspect of left lower limb extending distally from just below the tibial tuberosity to the left lateral malleolus in an oblique lateral direction.
366 I do not accept the plaintiff’s explanation that he walked much of the way to this appointment because he did not know how to catch a tram, when clearly he could catch a train and he also could drive to the appointment, as he has a drivers licence.
367 Whilst it was true that the plaintiff had been advised by Dr Caric to walk and the plaintiff was never shown walking for more than an hour at a time, the plaintiff walked an extraordinary distance on 16 May 2012, even for a person without a leg problem.
368 Significantly, the plaintiff was observed to walk in a normal manner and was not seen to experience any pain or restriction when walking these distances. Nor was any problem seen when walking from the station after standing in one spot on the train – a problem he has told doctors would limit his ability to work.
369 Whilst the plaintiff suffers some discomfort and numbness in the area of the scar, having seen the film, I do not accept that he has constant pain and the significant restriction he has deposed to and described to examiners.
370 I am not satisfied that leg pain or the scarring affects the plaintiff’s mobility in any significant way.
371 Given my view of the surveillance film, lay evidence supporting the level of restriction deposed to by the plaintiff must therefore be viewed with some caution.
372 Further, examining doctors have relied on the restrictions described by the plaintiff in forming their opinions.
373 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
374 Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff’s claim, such as those of Dr Sutcliffe and Mr Jones, must be looked at in the light of my views as to the plaintiff’s credit.
375 Having been told by the plaintiff that he could only walk for thirty minutes, Dr Sutcliffe concluded the plaintiff had a substantial limitation of activities and no capacity for suitable employment.
376 Mr Jones thought the plaintiff had a permanent incapacity for work involving prolonged walking or squatting, having been given a similar version of the plaintiff’s walking and standing tolerance.
377 Given the level of activity and free movement shown on film, I am not satisfied that the plaintiff has problems with mobility that significantly interfere with his work capacity and his ability to carry out his trade.
378 Further, what transpired on the plaintiff’s return to work after the incident is relevant when considering this issue.
379 Following the incident, the plaintiff was able to return to part time modified duties and was then certified fit for full time normal duties in the weeks leading up to the April 2008 infection.
380 I accept that this first wound breakdown followed the increase in the plaintiff’s duties, as Dr Boccola reported. After an admission to the Hospital on 2 April 2008 for six days, the wound healed, as Dr Vizec confirmed on 12 May 2008, when good healing was noted, and by 26 May 2008, it was reported that the plaintiff was managing with normal duties and there was no loss of function until November, during which time the plaintiff worked his normal duties full time. He attended the doctor on only two occasions for leg pain, reporting aching after standing all day in June 2008, and in July 2008, complaining of occasional discomfort and anxiety about wound breakdown. The plaintiff attended Dr Vizec for unrelated matters on two occasions in August 2008.
381 The plaintiff worked normal full time duties until a disagreement with Mr Mapperson on 17 November 2008, following which he never returned to the first defendant’s employ.
382 The plaintiff’s employment was terminated. He did not cease work because of the infection, which healed within two weeks.
383 There is no medical evidence that the plaintiff’s work duties in any way contributed to the second infection in November 2008.
384 Dr Vizec’s notes indicate the plaintiff attended on 14 November 2008 when it was noted the wound had broken down. There were further attendances in this regard on 18 and 24 November 2008. On the latter date, a certificate was provided for the period 17 November to 1 December 2008 and it was noted the plaintiff had been an inpatient overnight.
385 From March 2009, the plaintiff was certified fit for full time modified duties by Dr Vizec, until certified totally unfit in August 2009, for reasons that are unclear, despite Dr Caric giving viva voce evidence.
386 There is no evidence of any change in the plaintiff’s condition or circumstances in August 2009 such as to warrant total incapacity certificates. In any event, Dr Blombery, in December that year, certified the plaintiff fit for light work for ten hours per week.
387 Further, Dr Blombery does appear to have been aware the plaintiff was certified fit for full time modified duties by Dr Vizec in 2009, noting simply the plaintiff was advised not to return to work after the November 2008 infection
388 Save for one attempt to obtain work as a forklift driver in 2009, the plaintiff has taken no steps or tried to obtain work in his trade or any other field. Whilst the plaintiff was not cross examined in this regard, Dr Caric confirmed that on 9 February 2012, the plaintiff told him he could not get another job until his case finished. The plaintiff had suggested to Dr Caric that he was looking for another job.
389 I am not satisfied the plaintiff does not have a capacity for suitable employment resulting from his leg condition, as Dr Sutcliffe, and now Dr Blombery suggest.
390 Whilst Dr Caric thought the plaintiff was not fit for employment, he thought his incapacity resulted from his mental state as well as his leg injury and the risk of infection in relation thereto, as he set out in the certificate of 31 May 2012.
391 Other medical practitioners consider the plaintiff has a capacity for employment.
392 Dr Poppenbeek thought, after treatment for his depression and pain, the plaintiff would be fit for alternative duties on restricted hours on a graduated plan to returning to full time duties.
393 In Mr Dooley’s view, the plaintiff was fit to resume a wide range of work in the future, even his pre-injury work. Mr Jones considered the plaintiff had suffered a relatively superficial soft tissue injury and believed the plaintiff from a physical perspective was capable of unrestricted employment not involving prolonged walking or squatting.
394 Mr Anstee doubted there would be permanent incapacity for any employment.
395 Mr Kierce thought the plaintiff had a current work capacity and was fit for pre-injury work.
396 In my view, the plaintiff has a capacity for full time modified duties. I do not accept that he has problems with prolonged sitting or standing and consider the plaintiff has the capacity to undertake all but the heaviest aspects of his trade or other manual work.
397 In such circumstances, I am not satisfied that any interference with the plaintiff’s work could be described as more than significant or marked or at least very considerable.
398 Further, Counsel for the plaintiff submitted that the risk of further infection was such that the plaintiff is unable to return to work.
399 Reliance was placed on the fact that the plaintiff suffered an infection on each return to work and since he had stopped working, there had been no further infections.
400 It was submitted, factories are no longer a safe workplace for the plaintiff as simply knocking his leg would lead to re-infection and hospitalisation – a situation that would hurt the plaintiff emotionally, as Dr Caric described.
401 Whilst there was a wound breakdown in May 2008 which appears to be work related, there is little detail as to the cause of the November 2008 infection.
402 The plaintiff agreed the November 2008 infection took two weeks to heal. Whilst Mr Dooley thought there was a possibility of further wound breakdown, he reached that view on examination in March 2009, only four months after the November infection, and Mr Dooley noted the wound had then in fact healed.
403 Mr Jones thought the chances of repeat infection were unlikely. Mr Anstee doubted there would be another infection, there not having been one for four years.
404 Mr Behan, whilst raising the possibility of scar revision surgery, did not comment on the likelihood of further infection, nor did Dr Poppenbeek, Dr Blombery or Mr Kierce.
405 Whilst Dr Sutcliffe shared Dr Caric’s view that the plaintiff was at considerable risk of breakdown of the skin in the area of injury from minor knocks and was at risk of increased episodes of infection, I do not accept there is any significant risk, there not having been a further infection for nearly four years.
406 This is not a case of recurrent infections, as Mr Behan described. The two episodes were in 2008, the most recent nearly four yeas ago. In such circumstances, I am not satisfied that there is a likelihood of further infection such that it would preclude the plaintiff returning to work.
407 There is little medical support for the view that the plaintiff requires further treatment.
408 In 2009, Mr Dooley thought the plaintiff required no ongoing physical treatment and was unlikely to require any other treatment unless he injured the area further.
409 Mr Anstee and Mr Jones thought just wearing a bandage would be enough if the plaintiff had to protect his leg and the only other treatment was the occasional use of mild analgesics.
410 Dr Blombery did not mention any further treatment when he last saw the plaintiff in March 2012.
411 I am not satisfied that the plaintiff suffers constant pain at the level he describes. Further, I accept, based on the medical evidence, that the plaintiff does not have sufficient physical problems to account for his claimed problems. Whilst he is being prescribed Lyrica for neuropathic pain and he also takes Panadol and Panadeine Forte for pain relief, there is no further treatment suggested by Dr Blombery or any other practitioner save for continuing to wear the bandage and use mild analgesics.
412 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s left leg has consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
413 As the plaintiff has failed to satisfy the narrative requirements, I am not required to consider the factors set out in s134AB(38)(e)(i) and (ii) of the Act. Issues of retraining and rehabilitation pursuant to subsection (g) therefore do not arise.
414 Accordingly, the application pursuant to sub section (a) is dismissed.
Psychiatric
415 The plaintiff also brings an application pursuant to subsection (c) claiming to have suffered a permanent severe mental disorder.
416 I accept that the plaintiff is suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood as diagnosed by Dr in Kornan 2009, Dr Shan in January 2011, Dr Kaplan in November 2011 and Dr Rahmanovic in 2012.
417 There is limited suggestion of a Chronic Pain Syndrome from a psychiatric point of view. Dr Kaplan noted, if it was deemed the plaintiff’s pain was not organically based, then a diagnosis would be that of a Pain Disorder, which he described as a psychiatric diagnosis of exclusion.
418 The plaintiff has had very limited treatment for any psychiatric problems, having only attended a psychologist, Dr Rahmanovic, for counselling for what referring doctor, Dr Caric, described as increased depression and withdrawal since the injury.
419 From Dr Caric’s notes, it appears the plaintiff sought referral in June 2010 at his children’s insistence and commenced seeing Dr Rahmanovic in about August that year. Around that time, Dr Caric first prescribed Cymbalta, having prescribed Endep and Epilim in November 2009.
420 The May 2012 report from Dr Rahmanovic is of little assistance. He briefly described the plaintiff’s problems with memory, concentration and sleep disturbance. He did not express a view as to the plaintiff’s work capacity or prognosis, concluding simply that the plaintiff’s condition had stabilised.
421 On medico legal examination in July 2009, Dr Poppenbeek thought the plaintiff was suffering depression and had suicidal ideation. In those circumstances, he advised Dr Blombery not to go ahead with treatment until this situation resolved.
422 However, there was no psychiatric referral resulting from Dr Poppenbeek’s concerns.
423 Having seen Dr Blombery’s report, in October 2010, Dr Blombery advised CGU he had spoken to the plaintiff’s doctor who felt his depression was under control. Further, when Dr Blombery saw the plaintiff, he thought the plaintiff did not seem to be unduly depressed, hence he wrote requesting the infusion proceed.
424 There has been no suggestion that the plaintiff requires more extensive psychiatric treatment in the future.
425 In 2009, Dr Kornan thought it was appropriate for the plaintiff to continue treatment with his local doctor and be on psychotropic medication as prescribed by him. He preferred the plaintiff not attend for treatment with a psychologist or psychiatrist as he considered such treatment may well make him brooding and introspective.
426 Dr Shan thought ongoing counselling by a psychologist, at least until litigation was finished, was indicated and anti-depressants may also need to be continued.
427 I am not satisfied there is an incapacity for work on psychiatric grounds.
428 In 2009, Dr Kornan thought, from a psychiatric point of view, there was no limitation or incapacity for work.
429 Dr Shan thought that the plaintiff’s condition did not, in itself, contribute to incapacity for work and, solely from a psychiatric viewpoint, the plaintiff was fit for pre-injury duties if not for the ongoing physical condition.
430 Dr Kaplan noted it was difficult to assess the plaintiff’s capacity for work from a psychiatric point of view, noting the plaintiff perceived himself as incapable of working both due to physical and psychological conditions
431 In May 2012, Mr Rahmanovic made no comment whatsoever as to any incapacity for work related to the plaintiff’s Adjustment Disorder.
432 Dr Caric did not identify the plaintiff’s psychological condition alone as resulting in incapacity for employment, certifying the plaintiff unfit on both physical and mental grounds.
433 Taking into account the plaintiff’s ability to socialise and engage in the wider community, the lack of psychiatric referral and treatment, save for counselling from mid 2010 and the prescription of antidepressant medication in late 2009, and the expert opinion as to his condition and prognosis, I am not satisfied that any psychiatric impairment meets the higher test of “severe”.
434 Accordingly, the plaintiff’s application pursuant to subsection (c) is dismissed.
Scarring
435 The plaintiff also relied upon paragraph (b) of the serious injury definition relating to permanent serious disfigurement.
436 The scar is clearly ugly and large and covers an area measured by Mr Behan of 17 by 2 centimetres and described by him as apparent over the peroneal compartment with evidence of widening and scar separation throughout its length.
437 The plaintiff deposed he did not like wearing shorts and was embarrassed by his scar and tended to keep it covered. He felt constantly concerned the skin around the scarring would break if it was knocked. The plaintiff gave a similar history to various medical examiners.
438 In his viva voce evidence, the plaintiff did not elaborate further on his affidavit evidence as to the effects of scarring.
439 I did not find the plaintiff had a significant emotional response to the scar, a view shared by plastic surgeon, Mr Behan, who considered there was no sign of any behavioural or psychological changes in relation to the scarring.
440 Further, the plaintiff was shown wearing shorts when walking on 8 November 2011.
441 However, as Callaway AJA said in Ingram v Ingram & Transport Accident Commission (1996) 2 VR 652, there was much to be said for the view that the psychological dimension of an injury, or at least it could be described as mental or behavioural, was primarily to be considered by reference to paragraph (c) and it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement, although he did not really decide the issue on the facts of that case.
442 Whilst the plaintiff experiences aching and numbness in the area of the scar, I am not satisfied that the scar is much of an impediment to most activities of daily living, a view shared by Mr Anstee. The plaintiff obviously has to be careful of knocking his leg and wears a compression bandage for support and warmth, but otherwise his daily activities are unaffected.
443 Limitation of movement in dorsiflexion as a result of the scar is more properly assessed pursuant to subsection (a) – see Dwyer and Calco Timbers Pty Ltd (No 2).
444 In this case, the scarring, though extensive, is now well healed.
445 Mr Behan thought there was a possibility of revision surgery but such a course was complicated by clinical features of ongoing sympathetic dystrophy. However, no steps have been taken by the plaintiff to undergo any further procedure. Mr Anstee doubted any treatment was indicated as far as the scarring was concerned.
446 Whilst it is unsightly and causing the plaintiff some discomfort, when judged by comparison with other cases in the range of possible impairments, I am not satisfied that the scarring may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
447 Accordingly, the application pursuant to sub section (b) is also dismissed.
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