Karimi v VWA

[2019] VCC 2180

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-00142

AMIR KARIMI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	11 & 12 November 2019
DATE OF JUDGMENT:	20 December 2019
CASE MAY BE CITED AS:	Karimi v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 2180

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:   Serious injury; Left arm injury and mental or behavioural disorder;
  identification of injury; extent of consequences
Legislation Cited:                Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:  Meadows v Lichmore [2013] VSCA 201; VWA v Nguyen [2016]

VSCA 284

Judgment:       Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M. Cameron with Ms C. Kusiak	Zaparas Lawyers
For the Defendant	Mr A. Middleton	Wisewould Mahoney

HIS HONOUR:

Introduction

1 Amir Karimi seeks leave to claim damages in accordance with section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) on the basis that he has suffered a serious injury as defined in section 325 of the Act. He seeks leave in relation to both pain and suffering damages and pecuniary loss damages, and relies upon both paragraph (a) and paragraph (c) of the serious injury definition. Insofar as the claim is made in relation to an organic injury, Mr Karimi relies upon the left arm as the body function said to be relatively lost or impaired.

2       Ms Kusiak of counsel, who appeared led by Ms Cameron, on behalf of Mr Karimi described Mr Karimi’s left arm symptoms as developing during the course of his employment with Outback Sleepers Manufacturing (“the employer”) for whom the Mr Karimi had worked since early April 2014.  His symptoms developed in mid-2015 and commenced with pain initially in the left wrist and thumb, with symptoms spreading rapidly into the left upper limb, and subsequently causing complaints in the neck and both shoulders.

3       Ms Kusiak provided a very detailed opening, making reference to the fact that Mr Karimi had begun complaining of psychological issues by September 2015 and was referred by his general practitioner, not only to an orthopaedic surgeon and a physiotherapist, but to a psychologist and a psychiatrist within a few months of his initial complaints.  She indicated during the opening that the claim could fall to be assessed in accordance with paragraph (c) of the serious injury definition if the evidence did not lead the court to a conclusion that Mr Karimi had made out his application for leave on the basis of the consequences of his original organic injury.

4       Mr Middleton, who appeared on behalf of the defendant, took no issue with Mr Karimi relying on the left arm as the relevant body function for the purposes of paragraph (a).  He had opposed the plaintiff relying on consequences impacting the right arm, the neck and the back as had been foreshadowed in the initial application.

5       Ultimately Mr Middleton identified the disentanglement of Mr Karimi’s various physical complaints and the separation of the physical from the psychological consequences as impediments to the grant of leave.  He also identified the relatively benign nature of the pathology affecting the plaintiff’s left arm and very little treatment over approximately a two year period as tending against a conclusion that the consequences suffered by the plaintiff could satisfy the statutory test whether an assessment was to be made under either paragraph (a) or paragraph (c) of the serious injury definition.

6       Mr Karimi was the only witness required for cross-examination.  The evidence was otherwise tendered from documents contained in the parties respective court books.

The lay evidence

7       Mr Karimi swore three affidavits in support of his application on 6 September 2017,14 October 2017 and 11 November 2019.[1]  He also relied on an affidavit from his partner, Malihe Aghajanzadeh, affirmed on 14 October 2019. 

[1]Exhibit A, pp 12-21 & 39-47 & 253-254

8       In his first affidavit Mr Karimi described his background in Iran, working as a clerk in a rice importing business before starting his own business which he ran for about nine years.  In 2011 he came to Australia with the assistance of people smugglers and was held in immigration detention for approximately 10 months.

9       After receiving a refugee visa he came to Melbourne and worked initially for a short time in a fish factory, and then another factory in the Dandenong area making concrete sleepers.  He eventually found work with the employer and commenced on 8 April 2014.  He was working full-time.  He commenced this work shortly prior to his 38th birthday.

10      Mr Karimi described the work which involved making concrete blocks in moulds and appears to have been quite physical. 

11      In the first affidavit Mr Karimi describes developing pain in his left wrist and thumb in about June 2015.  He attended a Dr Pishan in Dandenong on 10 July 2015 and began to notice pain in his left elbow and shoulder.  There were various investigations done and he was placed on light duties on 3 August 2015.  He describes having ceased this work after a few weeks and had further treatment from Dr Pishan and was referred to an orthopaedic surgeon, Mr Anthony Jacobson.

12      Mr Karimi described becoming very anxious about his condition and was worried about being able to support himself.  At that time he was living with his partner whom he had known since 2014.

13      He was sent to a psychologist, Ms Fariba Kavianpour, in September 2015 and had continued to see her regularly since that time.

14      He also saw Mr Jacobson in September 2015 and conservative treatment and various injections were prescribed.  He got little relief from this treatment. 

15      Mr Karimi was also referred for physiotherapy, which he attended regularly for a few months, but ultimately ceased when his employer’s insurer would not pay for the treatment.

16      Dr Pishan arranged further investigations, as did Mr Jacobson, during late 2015 and into 2016. 

17      Dr Pishan then referred Mr Karimi to a psychiatrist, Dr Rajiv Siotia, in January 2016.  Dr Siotia had prescribed medication and Mr Karimi has continued to see him on a two to three weekly basis. 

18      Mr Karimi changed to another general practitioner, Mr Hamimi, in May 2016 and has continued to see Dr Hamimi since that time.  Dr Hamimi referred him to an exercise physiologist who treated him on several occasions. 

19      Mr Karimi’s first affidavit set out his treatment at that time as seeing Dr Hamimi or another doctor at least once a month, Dr Siotia every two to three weeks and Ms Kavianpour about once a month.  He was prescribed medication and was then taking Tramadol, Lyrica, Pristiq, Alepam, Seroquel and Imovane.

20      Mr Karimi’s first affidavit described the symptoms he was experiencing in his left upper limb at that time.  He also set out difficulties with his activities of daily living, including driving, sleeping and his relationship with his partner and her teenage son.  He described becoming more moody and irritable and becoming anxious.

21      In Mr Karimi’s second affidavit he described pain developing in his right arm and shoulder as then affecting his whole right arm.  He confirmed that he was left hand dominant.  He also described some back pain, although the pain in his arms was said to be a lot worse.  He described his pain and consequences in the second affidavit as follows:

“… I have continued to experience pain in my left hand, wrist, elbow, arm and shoulder.  When I affirmed my previous affidavit the pain in my left elbow wasn’t too bad, but it has become worse since then.

The pain in my left shoulder spreads into the left side of my neck.  I have pain all the way down my left arm, from the left side of my neck, into my left shoulder and then down my arm into my left elbow and then into the fingers and thumb of my left hand.  The pain is usually a burning pain, and I get pins and needles too.”[2]

[2]Exhibit A, p 40 [7] & [8]

22      That affidavit continued to describe various weaknesses and limitations as a consequence, particularly of the left arm symptoms.

23      Mr Karimi also confirmed what appeared to be a relatively sedentary lifestyle:

“I spend most of my days resting, watching television, going to medical appointments and browsing Facebook or playing games on my phone.  I lie down frequently during the day to rest, as this helps to relieve some of my pain.  Facebook is the main way that I keep in touch with friends and family in Iran. … I rarely socialise with friends any more.  My pain makes me feel down and I am embarrassed that I am so disabled and I am not working.  I prefer to be by myself.

My relationship with Malihe is very strained.  We are still living together but we aren’t getting on very well.  I am moody and irritable with Malihe and her son.  …

I feel very depressed and anxious because of my pain.  … I feel very lonely and isolated now.”[3]

[3]Exhibit A, pp 42-43 [18] to [23]

24      In Mr Karimi’s second affidavit he mentioned serious psychological issues which he had discussed with Dr Siotia.  He was continuing to see his psychiatrist, psychologist and general practitioner and was also seeing two pain specialists, Dr Mehr and Dr Weeks.  He had commenced seeing Dr Mehr in March 2018 and Dr Weeks in January 2019.  He had also seen a neurosurgeon, Professor Bittar, in about April 2018.

25      Mr Karimi had attended a pain management program in about mid‑September 2019.  He found it difficult to focus and concentrate and attended the program with an interpreter.  He stated in his affidavit:

“My pain is just as bad now as it was before I did that program.”[4]

[4]Exhibit A, p 44 [30]

26      Mr Karimi set out details of the medications he was taking at the time of swearing his second affidavit.  These medications included Lyrica, Oxycontin, Baclofen, Mirtazapine, Lovan, Seroquel and Alepam. 

27      Mr Karimi described attending hospital with a suspected heart attack in October 2018, although he was re-assured and discharged.  His affidavit described his inability to return to work since late 2015 and described him attending English classes for a couple of months in early 2017:

“I struggled to cope with the classes because of my pain … it was difficult to take many notes in the classes because I am left-handed and I have a lot of pain in my left hand and wrist when writing.  It was also difficult to concentrate and focus during the classes.  I didn’t really learn much.  I stopped attending after a couple of months because I couldn’t cope.”[5]

[5]Exhibit A, pp 45-46 [35]

28      Mr Karimi’s second affidavit concluded with him stating that he would like to go back to work, but he did not believe he could do so.  His English was limited and he had only done manual work in Australia.

29      Mr Karimi’s final affidavit affirmed on 11 November 2019 referred to potential medical treatment on his left wrist and thumb and also in relation to a nerve block on the left shoulder.  He was pessimistic about that treatment and did not wish to undertake it.

30      When Mr Karimi was cross-examined I noted the following matters as relevant to my determination:

·     A lot of the lifting work in making the concrete sleepers involved moving them from one place to another using a hand-held forklift.[6]

[6]Transcript (“T”) 23, Line (“L”) 22-28

·     He had initially been treated by Dr Hamimi from about March 2012, but he was going to Dr Pishan in July 2015 because it was closer to his residence.[7]

[7]T 24, L 13-18

·     In September 2015 he was referred to Mr Jacobson, an orthopaedic surgeon.  Both shoulders were treated with injections.  The first time was the left shoulder and the second time on the right, “I had an injection to my elbow and I went for physiotherapy.”[8]

[8]T 26, L 11-30

·     In March 2016 Mr Jacobson referred him to Dr Marie Feletar, a rheumatologist.  Mr Karimi believed he saw her on one occasion only.[9]

·     From early 2016 to early 2018 he was under the care of either Mr Jacobson and Dr Pishan or Dr Hamimi.[10]

·     In March 2018 he was referred by Dr Hamimi to Dr Mehr at the Precision Clinic in Kew.  He agreed that since that time he had been treated by four doctors at the same clinic.[11]

·     Mr Karimi had also been treated by Dr Kavianpour, the psychologist, and Dr Siotia, the psychiatrist, but had no real improvement.[12]

·     When Mr Karimi first had treatment at Dr Hamimi’s clinic in July 2012 he was prescribed Tramal.  He was unable to recall precisely why he received that medication.[13]

·     He agreed that a doctor had suggested an operation, but there was no guarantee the pain would go away and he was scared of the operation.[14]

·     He attended a pain management clinic over about a six week period in Frankston.  He was not sure if it was Dr Weekes or Dr Mehr who had referred him.[15]

·     Mr Karimi agreed that he had some restriction in the movement of his left arm, “but my right arm I can move more.”[16]

·     Mr Karimi agreed that he had given histories to a number of doctors that he relied heavily on his partner to do chores around the house.  He also agreed that he had told doctors that he could not lift his arms above roughly shoulder height.[17]

[9]T 27, L 1-5

[10]T 27, L 6-12

[11]T 27, L 13-26

[12]T 28, L 5-30

[13]T 29, L 7-24

[14]T 31, L 2-8

[15]T 31, L 20-30

[16]T 32, L 24 to T 33, L 2

[17]T 34, L 8-29

31      Mr Middleton proposed to show surveillance video taken on 17 October 2017.  It became apparent that this material had not been exchanged with the plaintiff’s solicitors in accordance with the pre-litigation guidelines and, quite properly, Mr Middleton did not proceed with this aspect of the cross-examination.

32      There was further cross-examination concerning attempts made by Mr Karimi to return to modified duties.

33      He agreed that in August 2015 he returned performing light duties.  He could not recall being contacted by his employer between December 2015 and January 2016, but did not disagree with a clinical note from Dr Pishan stating:

“Advised him that it is important to start work because the more that he is away from work and does not return to work it is much more difficulty for him to re-start his work.”[18]

[18]T 41, L 1-28

34      Mr Karimi stated that he attempted to work in February 2016 but:

“They gave me a job that I had to go up on the machine that was at a very high elevation and I have only – I’m left handed and I was to paint at that height and when I was looking down, I was frightened by the height as well.  I said that ‘I’m unable to do this job.’  As a replacement duty they gave me bags of 10 kilogram weights to take to the second floor.”[19]

[19]T 42, L 3-13

35      Mr Middleton cross-examined Mr Karimi about further notes from Dr Pishan relating to failed attempts to return to work in March and April 2016.  He suggested that Mr Karimi had changed doctors in early May of 2016 because Dr Pishan would not support Mr Karimi, refusing to return to modified duties.  Mr Karimi maintained that he had changed, not only because of the lack of support, but also because Dr Pishan was “meddling into my personal affairs as well.”[20]

[20]T 43, L 2-21

36      Mr Karimi was briefly re-examined:

·     He was unsuccessful with a return to work in late 2015 and early 2016:

“… because I had pain and I was on tablets. … I went to do it but I couldn’t.”[21]

·     He agreed he had been prescribed Tramal prior to his workplace injury.  He was unsure what this was for, but believed it may have related to wisdom teeth.[22]

·     He agreed he had had depression whilst in detention on Christmas Island.  He was not taking medication when he commenced working for the employer:

“I was good, in the mid-range.”[23]

[21]T 43, L 26 to T 44, L 2

[22]T 44, L 8-24

[23]T 45, L 3-9

37      Mr Karimi’s partner, Ms Malihe Aghajanzadeh, affirmed an affidavit on 14 October 2019.[24]  She was not required for cross-examination.  Her affidavit described knowing Mr Karimi for about five years, and living together for “a few years”.  Her affidavit described her being aware of an injury suffered to Mr Karimi’s left arm:

“He now suffers pain in his entire left upper limb and also in his right upper limb.  He has some back pain and neck pain.  He frequently complains to me about his pain.”[25]

[24]Exhibit A, pp 48-50

[25]Exhibit A, p 49 [4]

38      Ms Aghajanzadeh’s affidavit also described her observation of a change in Mr Karimi’s mood and his level of activities:

“He rarely uses his left arm at all anymore, even though  he is left handed.  He rarely does anything to help around the house.  He says that he is in too much pain and can’t use his left arm.  I have even had to help him wash and dress on occasions.”[26]

[26]Exhibit A, p 49 [7]

39      Ms Aghajanzadeh also described impacts on their personal life and her observations of Mr Karimi’s difficulty in sleeping:

“Amir’s injuries have put a lot of strain on our relationship.  He just isn’t the person that he used to be.  I don’t know how much longer we will stay together.”[27]

[27]Exhibit A, p 50 [7]

The medical evidence

40      Ms Cameron tendered into evidence the following medical reports from the plaintiff’s treating medical practitioners:

i.Dr Ebrahim Pishan dated 8 March 2016;[28]

iiDr Qasim Hamimi dated 19 March 2017, 29 January 2018, 25 June 2018, 17 February 2018[29]

iii.Dr Kilner Brasier, occupational medicine specialist.[30]

iv.Mr Anthony Jacobson, orthopaedic surgeon, 17 September 2015.[31]

v.Dr Rajiv Siotia, psychiatrist, 27 May 2017 and 13 June 2018.[32]

vi.Dr Fariba Kavianpour, psychologist, 4 May 2018 and 24 October 2019.[33]

[28]Exhibit A, pp 51-52

[29]Exhibit A, pp 53-104

[30]Exhibit A, pp 105-107

[31]Exhibit A, pp 123-124

[32]Exhibit A, pp 125-129

[33]Exhibit A, pp 136-145

41      Further material from treating medical practitioners was tendered as part of what was described in the court book as “additional documents”.  These included an amended report from Dr Mehr dated 10 September 2019,[34] a further report from Dr Siotia dated 29 October 2019,[35] an updated report from Dr Hamimi dated 4 November 2019[36] and finally, a report from Dr Gavin Weekes dated 6 November 2019.[37]

[34]Exhibit A, pp 229-237

[35]Exhibit A, pp 238-244

[36]Exhibit A, pp 245-248

[37]Exhibit A, pp 249-252

42      In addition to the extensive opinions of treating medical practitioners, the plaintiff tendered into evidence medico-legal reports from five different practitioners.  Dr Michael Epstein, psychiatrist, provided two reports dated 9  April 2018 and 26 September 2019,[38] Dr Richard Sullivan, pain specialist also provided a single report dated 17 April 2018,[39] Mr Ash Chehata, orthopaedic surgeon, provided three reports dated 15 June 2018, 6 September 2019 and 21 October 2019,[40] Dr Peter Blombery, a consultant in vascular disease and pain medicine, provided three reports dated 18 June 2018, 20 September 2019 and 18 October 2019.[41]  Finally, Dr David Kennedy, a sports and industrial physician, provided a single report dated 19 September 2019.[42]

[38]Exhibit A, pp 152-162 & 220-228

[39]Exhibit A, pp 163-166

[40]Exhibit A, pp 167-191

[41]Exhibit A, pp 192-204

[42]Exhibit A, pp 205-212

43      Ms Cameron also tendered into evidence reports that had been obtained by the employer’s insurer in 2016. These included two reports from Dr Reza Sabetghadam, occupational therapist, dated 21 January 2016 and 9 February 2016.[43]  Ms Cameron also tendered a report from Dr Wendy Triggs, psychiatrist, dated 26 April 2016.[44]

[43]Exhibit A, Defendant’s Court Book (“DCB”) 1-17

[44]Exhibit A, DCB 18-26

44      Mr Middleton, on behalf of the defendant, tendered into evidence a report from Mr Peter Scott, general surgeon, dated 20 June 2016,[45] four reports from Dr Michael Baynes, occupational physician, dated 17 February 2017, 30 November 2017, 20 June 2018 and 24 September 2019.[46]

[45]Exhibit 1, pp 27-36

[46]Exhibit 1, pp 37-41, 63-68, 77-82 & 89-95

45      Mr Middleton tendered a single report from Dr Dush Shan, psychiatrist dated 23 October 2017,[47] a single report from Mr Roy Carey, orthopaedic surgeon, dated 1 November 2017,[48] two reports from Mr Damien Ireland, hand surgeon, dated 19 December 2017 and 29 May 2018,[49] and a single report from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, dated 24 July 2019.[50]

[47]Exhibit 1, pp 42-50

[48]Exhibit 1, pp 51-62

[49]Exhibit 1, pp 69-76

[50]Exhibit 1, pp 83-88

46      Mr Middleton tendered material from Mr Karimi’s treating doctors, Mr Jacobson and Dr Feletar, a rheumatologist, to whom he had been referred in early 2016.[51]  He additionally tendered clinical notes from Dr Pishan, in particular a notation made by him on 17 April 2016.[52]

[51]Exhibit 1, pp 96-98

[52]Exhibit 1, pp 128-129

47      Mr Middleton tendered a document titled “Suitable Employment Report” provided by Ms Janette Ash, occupational therapist, from the Recovre Group.[53]

[53]Exhibit 1, pp 99-122

48      Finally Mr Middleton tendered into evidence a draft statement of claim dated 11 May 2017 and part of Mr Karimi’s “Form A” application, both of which described an extensive list of injuries.[54]

[54]Exhibit 1, PCB 6-11 & p 25

Analysis

49      Notwithstanding the extraordinarily large number of medical opinions that were relied upon by both parties in this case, there was in effect little disagreement between the parties insofar as the identification of Mr Karimi’s original work related injury.  This had first presented as a ganglion on the left wrist.  Mr Middleton submitted in final address that the opinion of Mr Jacobson, the orthopaedic surgeon to whom Mr Karimi had been referred, had correctly described the condition as an aggravation of symptoms. 

50      Mr Jacobson wrote to Dr Pishan on 17 September 2015, after first seeing Mr Karimi, he stated in that letter:

“While his heavy factory work is likely to aggravate his symptoms, there has been no clear specific injury event which has been associated with these.”[55]

[55]Exhibit A, p 124

51      Mr Jacobson wrote to Dr Pishan again in December 2015, by which time it was apparent that the conservative measures he had earlier recommended were of little effect:

“Mr Karimi continues to experience widespread upper body pain over both shoulders, elbows and wrists.  While his imaging thus far has demonstrated multiple mild pathologies he continues to experience significant irritation in all of his joints and has not responded significantly to his initial course of non-operative measures including steroid injections, hydro dilatation of the right shoulder, a left wrist brace and a counter force brace for his left tennis elbow.[56]

[56]Exhibit 1, p 96

52      Mr Jacobson advised Dr Pishan that he was referring Mr Karimi for the opinion of a rheumatologist.  Three months later Dr Marie Feletar wrote to Dr Jacobson after seeing Mr Karimi.  Dr Feletar took a history of Mr Karimi working for 18 months until July 2015 in a manual job involving lifting and pushing cement.  She noted the history of symptoms as follows:

“He said in 2014 after two months of working there he developed pain in the hands, neck and back.  That pain has persisted and since he stopped work in 2015 that pain has not improved at all, rather he says it is the same or sometimes worse.”[57]

[57]Exhibit 1, p 97

53      Dr Feletar conducted an examination and commented as follows:

“When asked to abduct his arms, he said he couldn’t lift his arms, but passively could do so.  There was a lot of incongruence with his movements.  There was a lot of groaning and abnormal illness behaviour in the posture that he adopted. … There was no joint pathology at all.  He complained of lots of tenderness on palpation, reflexes were absolutely normal and symmetrical and the findings were the same in the lower limbs.  He said he couldn’t lift his arms at all and there was absolutely collapsing weakness which was really implausible.”[58]

[58]Exhibit 1, p 97

54      Dr Feletar’s report concluded:

“This gentleman doesn’t have a chronic pain syndrome.  He presents as somebody whose presentation is simply implausible.  I am referring him back to your care and have given him a prescription of Mobic for his described pain and I don’t think he needs anything stronger.”[59]

[59]Exhibit 1, p 98

55      Mr Middleton also referred me to the clinical note made by the initial general practitioner, Dr Pishan, on 17 April 2016.[60]  Dr Pishan had noted Mr Karimi reporting that he still had pain in his left shoulder and wrist.  He further noted that the pain reflexes were exaggerated and the clinical note queries a number of other results on examination.  The clinical note concluded as follows:

“Advised him that I cannot write any letter of support as I have received a letter from his orthopaedic surgeon and I need a letter of support from specialist for continuing WorkCover.”[61]

[60]Exhibit 1, pp 128-129

[61]Exhibit 1, p 129

56      The next clinical note is made on 23 April 2016 and records Mr Karimi coming in for his MRI results “NAD”.

57      The final note recorded by Dr Pishan was on 8 May 2016 when he notes that his patient had come to transfer his documents to Dr Hamimi.

58      Notwithstanding the concession by Mr Middleton at the commencement of the hearing that his client did not oppose Mr Karimi relying upon the left upper limb as the body part relevantly impaired for the purposes of paragraph (a) of the definition, it was evident that the complaints made by Mr Karimi to his initial treating doctors to 2015 and 2016 involved both upper limbs, both shoulders and the next at the very least.

59      There is no clear mechanism of injury described by any of the treating medical practitioners in Mr Karimi’s case.  Indeed his initial claim for compensation dated 13 August 2015, simply described injury affecting his “left arm, left hand and right hand tendinitis” and was said to be related to repeated heavy lifting, removing concrete sleepers from moulds.[62]  The initial claim was supported by Dr Pishan.[63]  His report of 8 March 2016 notes an initial complaint of “20 days pain in left wrist starting in  his workplace.”[64]  He diagnosed a left wrist ganglion (amongst other conditions) in his 2016 report.

[62]Exhibit A, p 213

[63]Exhibit A, p 214

[64]Exhibit A, p 51

60      The insurer accepted liability for that claim in a letter dated 4 November 2015, which was also tendered as part of the plaintiff’s case.[65]

[65]Exhibit A, pp 215-219

61      I am satisfied the initial organic injury was a left wrist ganglion which shortly thereafter involved Mr Karimi’s left elbow and shoulder.

62      In view of the opinions expressed, particularly by Dr Pishan, Dr Jacobson and Dr Feletar, to which I have referred, I am unable to be satisfied that any genuine organic injury impacting on Mr Karimi was of any significant duration.  I am satisfied that any significant organic component to injury was no longer causative of any significant consequences beyond the date of Dr Pishan’s clinical note made on 17 April 2016.

63      The opinion provided by Dr Triggs on 26 April 2016 noted Mr Karimi’s treatment by a psychologist at that time and the prescription of sleeping tablets and Zoloft in addition to Tramadol.  She diagnosed Mr Karimi as suffering from an adjustment disorder and a chronic pain syndrome and expressed a view at that time that:

“… he would not appear to currently have a psychiatric capacity for work, until he has undertaken a pain program towards recovery.”[66]

[66]Exhibit A, DCB p 23

64      The defendant’s solicitors only obtain a single psychiatric report from Dr Dush Shan dated 23 October 2017.  Dr Shan did not believe Mr Karimi to be suffering from a work-related mental disorder or illness:

“As indicated in the reasoning above, the patient is describing normal emotions for his constitutionally anxious disposition by nature.  This would explain the lack of improvement being observed through conventional psychiatric treatment for conditions such as major depressive disorder as diagnosed by psychiatrist. … The worker has a longstanding anxious disposition probably attributable to his experiences in having to flee Iran and be a refugee.”[67]

[67]Exhibit 1, p 48

65      Dr Shan made the following comments under the heading “Summary and Diagnosis”:

“My own impression of the patient, with the exercise of clinical judgment, is that what was being observed were understandable emotions in relation to the stressful situation that the patient has found himself in.  Whilst in the detention centre, he seems to have spoken of feeling very depressed and was considered needing an antidepressant, but he did not need that once he left the detention centre and probably felt even less stress when some of his immigration issues were eventually resolved as well.  He is now reacting in much the same way to the later set back consisting of some fairly common injuries for persons in manual work.  As a result of his helpless situation he seems to have become even closer to the lady he was seeing so that he has moved in with her.

Today, the patient’s muddled and sometimes uneasy responses to questions, I thought, was explained by the unusual medication combination he is on.  They all have interactive and overlapping psychotropic effects.  Currently the patient is being prescribed five such medications consisting of Tramadol, Lyrica, Seroquel, Pristiq and Mirtazapine.  Unusually, despite such intensive treatment, he reports almost no improvement.

The reported lack of improvement in his mental state is not consistent with his ability to travel by public transport to a distant location for medical interview for example, or to occasionally operative a motor vehicle in a local area.  It would not surprise me if the patient is sometimes to be seen together with his partner in a shopping centre, for example, showing no external evidence of mental confusion.

I am of the opinion that the patient’s emotions are within normal limits for a person in his injured situation.  No psychiatric disorder is present, in relation to employment.”[68]

[68]Exhibit 1, p 47

66      Having obtained such an opinion from a medico-legal consultant it is perhaps not surprising the defendant did not seek any updated opinion prior to this hearing.

67      In my view it is highly significant that the initial treating doctor referred Mr Karimi to the psychiatrist Dr Siotia in January 2015 only six months after he had ceased work.  Dr Siotia most recently reported on 29 October 2019 noting his ongoing treatment of the plaintiff since 2015.  His diagnosis was as follows:

“Mr Karimi continues to suffer from a major depressive disorder.  While his current symptoms are as a consequence of pain, he does fulfil the criteria for major depressive disorder.”[69]

[69]Exhibit A, p 240

68      He did not believe Mr Karimi had the necessary mental capacity to engage in work and further stated:

“I would further opine that his incapacity is likely to be permanent as there has been limited improvement over the past three years.”[70]

[70]Exhibit A, p 242

69      The opinion of the treating clinical psychologist most recently expressed in her report dated 24 October 2019 is similar to that of Dr Siotia:

“Mr Karimi’s current diagnosis is severe adjustment disorder with depressive and anxiety symptoms.  His mental health issues have occurred in reaction to the physical injuries that he sustained in his workplace and consequent chronic pain that has affected his functioning including his ability to work.”[71]

[71]Exhibit A, p 141

70      Dr Kavianpour described Mr Karimi’s prognosis for full recovery as unfavourable and stated as to capacity:

“From a psychological/psychiatric point of view his poor mental state would prevent him from being able to work.”

71      She expressed a similar view in relation to alternative suitable employment and stated:

“Mr Karimi’s incapacity is permanent and is likely to last for the foreseeable future.”[72]

[72]Exhibit A, pp 143-144

72      The only other psychiatric opinion relied upon was from Dr Michael Epstein who had reported to the plaintiff’s lawyers on 9 April 2018.[73]  Dr Epstein diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood as a consequence of chronic pain, discomfort and disability from his work injury:

“That appears to have led on to the development of a somatic symptom disorder with predominant pain as his pain has become more widespread with the passage of time. … His prognosis with regard to his mental state is very dependent on what happens with his physical condition and since this is unlikely to change his prognosis with regard to his mental state is poor. … His mental state alone would prevent him from resuming pre-injury duties or alternative duties.  He is unfit for work in any capacity taking only into account his current mental state.  He does require continuing psychiatric and psychological treatment if only to prevent further deterioration.”

[73]Exhibit A, pp 152-162

73      I am satisfied that the psychiatric condition diagnosed by the treating psychiatrist, Dr Siotia, is related to the accepted physical injury which occurred in July 2015.  I am also satisfied that there is no significant organic component to the ongoing consequences impacting on Mr Karimi at the date of this application.

74      Whether the appropriate psychiatric diagnosis is a major depressive disorder or an adjustment disorder with chronic pain and diagnosed by Dr Triggs, or an adjustment disorder with mixed anxiety and depressed mood as diagnosed by Dr Epstein, does not alter the fact that the psychiatric or psychological condition developed as a consequence of the original physical injury can appropriately be assessed, depending on the severity of the consequences produced, as mental or behavioural disturbances or disorder for the purposes of the statutory definition. 

75      In terms of severity little needs to be said.  If Mr Karimi’s complaints are accepted as genuine, then he is a man presently aged 43 who has been taking powerful medication prescribed by a psychiatrist since January 2016, when he was only 39 years of age.  He has not worked since that time and the overwhelming medical opinion appears to be that he has little hope of finding any suitable employment into the future.  He has received, and continues to receive, ongoing regular treatment from both a psychiatrist and a psychologist.  He has not looked for employment and has remained focused on pain.  His future from the point of view of employability based on the non-organic consequences of injury appears in my assessment to be particularly bleak.

76      Notwithstanding the obvious comments made by Dr Shan in 2017 suggesting that Mr Karimi may behave in a different fashion perhaps at a shopping centre, there was no surveillance video shown which would challenge his evidence concerning the extent to which he believes he is suffering widespread disabling pain.

77      Notwithstanding the relatively unimpressive manner in which he gave evidence before me, perhaps understandably in view of the level of medication he regularly takes, I accept that Mr Karimi was doing his best to give a true account of his injury and the consequences that have impacted on him since mid-2015.  I should also note that notwithstanding he had understandably suffered some depression whilst in immigration detention, he had since that time obtained a visa and worked in heavy physical activity at least for a period of some years before suffering his injury.

78      In those circumstances I regard Mr Karimi as a reliable witness.  Since the age of 39, when he sustained his injury, he has been unable to find any work and the medical evidence suggests this is likely to continue indefinitely.  On any view the loss of the ability to work for a man of his age must be regarded as severe when a comparison is made with other possible consequences. 

79      I am satisfied that he has no current work capacity for any suitable employment, and this is likely to continue indefinitely into the future.

80      I am satisfied that he should be granted leave to claim damages in respect of pecuniary loss.  In view of longstanding authority from Advanced Wire and Cable v Abdulle,[74] it is unnecessary to separately consider an application in respect of pain and suffering damages.

[74][2009] VSCA 170

Conclusion

81 I am satisfied that the plaintiff has proved an entitlement to leave in accordance with section 335(2)(d) of the Act on the basis that he has a serious injury, being a permanent severe mental or permanent severe behavioural disturbance or disorder in accordance with paragraph (c) of the serious injury definition set out in section 325 of the Act.

82      I will hear the parties in respect of formal orders sought and on the question of costs.

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