Khairi v Limnos Poultry Pty Ltd
[2014] VCC 458
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-03890
| KHALILURRAHMAN KHAIRI | Plaintiff |
| v | |
| LIMNOS POULTRY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4 and 5 March 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Khairi v Limnos Poultry Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 458 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) of the Accident Compensation Act – whether serious permanent impairment or loss of function of left shoulder and/or right shoulder – whether permanent severe mental disturbance or disorder secondary to compensable injury – causation – disentanglement – psychiatric condition –redundancy whilst performing light duties – whether permanent loss of earning capacity at least very considerable
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Mobilio v Balliotis [1998] 3 VR 833, MeadowsvLichmore Pty Ltd [2013] VSCA 201, Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
Judgment: Leave granted for right shoulder and mental disturbance only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram | Shine Lawyers |
| For the Defendant | Ms. M. Clarkin | Hall & Willcox |
HER HONOUR:
Introduction
1 The plaintiff is a 45-year-old Afghani, who in 2001 came to Australia as a refugee. He is married with six children, the youngest of whom was born in Australia. In 2008, his wife and five older children also travelled to Australia as refugees.
2 The plaintiff was educated to approximately 15 years of age. Prior to leaving Afghanistan the plaintiff worked in clothing and dry food shops operated by his uncle. His English language skills are limited.
3 Whilst this was not spelt out in the plaintiff’s affidavit or oral evidence, the history provided to doctors from time to time indicated exposure to significant trauma prior to leaving Afghanistan. For instance, psychiatrist, Dr Epstein, who examined the plaintiff on 16 December 2013 at the request of his solicitors, was told the plaintiff was 15 when his father was killed by a religious mob and, a younger brother was killed in a rocket attack on Kabul two years before the plaintiff escaped to Pakistan and travelled by boat from Indonesia to Christmas Island.[1]
[1]Exhibit P1, Plaintiff's Court Book (PCB) 104-105
4 Between July 2002 and May 2006 the plaintiff was employed by the employer, Limnus Poultry Pty Ltd, as a process worker at the company’s chicken processing plant. This was full-time employment in which, until 19 August 2004, the plaintiff processed chickens and carried out general cleaning work.
5 The plaintiff is normally right-handed.
6 In an affidavit sworn on 7 April 2011 the plaintiff deposed as follows:[2]
“6. I injured my right bicep and shoulder at work on 15 May 2004. The injury occurred when I was cleaning under drainage grates where blood and offal gathered. I was holding a high pressure hose in my left hand and when I picked up a grate in my right hand I felt sharp pain in my right bicep region.… (the grate incident).
7. I worked on for a few months after the incident with right arm and shoulder pain. I then went and saw my treating doctor, Dr Glenton White and went off work for 2 months - from 19 August 2004 until 19 October 2004. I then returned to work on restricted duties which included placing tapes on cardboard boxes, using an electric saw to cut chicken and putting liners in boxes. I worked on restricted duties until May 2006 when I was made redundant with the stated reason being a downturn in sales. I believe however my limited capacity for work affected my being made redundant. I have not worked since this time.”
[2]PCB 4-5
7 The evidence of the general practitioner, Dr White, among other things, established the following matters:[3]
[3]PCB 43-45
· an attendance for treatment on 19 August 2004 at the Dandenong City Clinic;
· a reported history of sudden right shoulder pain in association with pushing a heavy weight in the course of the plaintiff’s employment;
· clinical and ultrasound evidence[4] of a ruptured long head of the biceps muscle in the right arm, which the doctor thought likely occurred in the circumstances described;
[4]PCB 48
· an unrelated injury involving bilateral triggering of the ring fingers;[5]
[5]In his summary of the history, psychiatrist, Dr Epstein referred to clinical notes showing that on 21 January 2003 the plaintiff had sought treatment for this condition, PCB 113
· that initially the plaintiff was certified unfit for work for 1 month;
· the plaintiff was referred by the general practitioner to plastic surgeon, Mr Leong, for specialist treatment of the trigger finger condition. He examined the plaintiff on 1 September 2004 and later referred him to orthopaedic surgeon, Mr Razif, for treatment of the bicep tendon injury;
· the bicep tendon injury caused right arm weakness, as a result of which the plaintiff was restricted to performing light duties;
· when he prepared his report for the plaintiff’s solicitors in February 2011 the general practitioner advised that right arm weakness due to the bicep tendon injury permanently incapacitated the plaintiff for his pre-injury duties and limited the amount of physical activity he could perform with his right arm. As my discussion of the evidence shows, this circumstance has not changed. The rupture of the bicep tendon which connects the muscle to the shoulder is a cause of permanent impairment of the plaintiff’s right shoulder function; and
· without explaining the basis for including the left shoulder, the doctor said the plaintiff had been treated for bilateral rotator cuff tendinitis (painful shoulders) since the initial attendance for treatment. However, as my discussion of the evidence in due course shows, the plaintiff first sought treatment for left shoulder pain and symptoms in about May 2005.
The applications under the Accident Compensation Act 1985
8 The plaintiff sought leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages. Leave was sought in respect to multiple injuries.
9 Leave was sought under paragraph (a) of the definition of “serious injury”, namely serious permanent impairment or loss of function of the plaintiff's right shoulder and serious permanent impairment or loss of function of his left shoulder. It was submitted on the plaintiff’s behalf that these injuries arose in the course of his employment and, after the advent of the bicep tendon injury, compensatory use of the left limb exacerbated the condition of the left shoulder.[6] As my summary of the evidence shows in due course, there was no history of pre-existing problems with either shoulder when the plaintiff suffered compensable injury, firstly, to the right bicep tendon and right shoulder, then to his left shoulder, the latter after commencing light duties.
[6]TN 23-25
10 The determination of whether each of the shoulder injuries was “serious” was assessed by reference to the pain and suffering consequence and/or the loss of earning capacity consequence to the plaintiff due to impairment of each shoulder. The test in respect to each shoulder would not be satisfied unless the pain and suffering consequence or the loss of earning capacity consequence was, when judged by comparison with other cases in the range of possible impairments or loss of a body function, “fairly described as being more than significant or marked and, as being at least very considerable”.[7]
[7]Section 134AB(38)(c)
11 The further application was made under paragraph (c) of the definition. The plaintiff sought leave in respect to permanent severe mental or behavioural disturbance or disorder, namely Major Depressive Disorder with psychotic symptoms. Dr Epstein recently diagnosed Schizoaffective Disorder, a major component of which he said was depression. There was no history of pre-existing mental health issues. On the plaintiff’s behalf, it was submitted that earlier trauma predisposed the plaintiff to the development of the depressive condition secondary to compensable physical injury to each shoulder. In short, the physical work-related injury and ongoing pain and disability were said to be triggers for significant deterioration in the plaintiff’s mental health.[8]
[8]TN 204-216
12 Sub-section 38(d) also provides that the pain and suffering and/or the loss of earning capacity consequence of the psychiatric injury must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, be fairly described as being more than “serious” to the extent of being “severe”.
13 ‘’Permanent” under paragraphs (a) and (c) of the definition refers to impairment of each of the plaintiff’s shoulders and to any mental disturbance or disorder that was likely to last for the foreseeable future,[9] whereas "severe" in the context of the mental disturbance alleged connoted something of stronger force than "serious".[10]
[9]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
[10]Mobilio v Balliotis [1998] 3 VR 833
14 As to any economic loss, the plaintiff was also required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii), in respect to each injury by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
15 The plaintiff would not establish the requisite loss of earning capacity, where after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and training, he has a physical capacity for employment which, if exercised, would result in him earning more than 60% of the pre-injury earnings as determined in accordance with section 134AB(38)(f) of the Act. Moreover, the plaintiff must prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[11] Similar considerations apply in establishing the requisite loss of earning capacity in respect to the plaintiff’s mental capacity.
[11]Sections 134AB(19)(b) and (38(g)
16 Section 5(1) of the Act defines “suitable employment” such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market. “Suitable employment” means employment in work for which the plaintiff is currently suited, having regard to a number of factors. These include the nature of the plaintiff’s incapacity and the details provided in the medical information, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any documents relating to the return to work process and any occupational rehabilitation services provided.
The dispute
17 This was necessarily a difficult application to decide due to alleged injury to different body functions, as well as psychiatric injury. I found the defendant’s approach to the application confused.
18 In opening I was told the defendant agreed with the Statement of Issues handed to the Court by the plaintiff’s counsel. Among other things, the Statement alleged injury in the course of employment, more particularly on 15 May 2004, in association with the grate incident. The Statement also identified as issues, whether under paragraph (a) impairment of the function of either shoulder met the test and whether under paragraph (c) the plaintiff’s mental disorder also met the test.
19 As to the plaintiff’s mental disorder, at hearing with the leave of the Court, by consent, the Originating Motion was amended to add the claim under paragraph (c).
20 The defendant subsequently handed to the Court a Statement of Issues asking that the Court also determine whether, firstly, ongoing restrictions to either shoulder were mediated by organic factors and whether, secondly, the plaintiff’s mental disorder arose out of or in the course of his employment.[12] In this regard the defendant required the plaintiff to prove the undoubtedly severe psychiatric condition diagnosed by both Dr Epstein and the psychiatrist appointed by the defendant, Dr Entwisle, was secondary to compensable physical injury suffered in the course of his employment.
[12]TN 42
21 As to the right and left shoulder injuries, the defendant’s counsel told the Court that causation was not an issue. By letter dated 30 March 2011, the Authority’s agent notified acceptance of liability for the bicep tendon injury, the right shoulder injury and the left shoulder injury. The earlier unrelated trigger finger injury, for which treatment was received during 2004, was rejected.[13]
[13]PCB 19
22 Nevertheless, during closing submissions, the defendant’s counsel submitted that the rotator cuff pathology in the right shoulder, revealed by numerous radiological investigations, was not related to the workplace injury due to the late onset of symptoms.[14]
[14]TN 151
23 The plaintiff’s case was that the chronic rupture of the bicep tendon, caused by the grate incident, had also affected the function of the plaintiff’s right shoulder and rotator cuff and other shoulder pathology identified by the radiology was causally related to the bicep tendon injury, as was the onset of left shoulder capsulitis and symptoms.[15]
[15]TN 150-151 and 178-179
24 If the bicep tendon injury and related right shoulder injury led to the onset of the left shoulder symptoms and condition, the problems with the left shoulder could be treated as a consequence of the ongoing impairment of the right shoulder. However, the plaintiff’s case was that, whilst causally linked to the grate incident, the injury to the left shoulder was to be assessed as a separate injury with consequences which met the test. I will discuss the evidence relating to the left shoulder injury shortly.
25 Accordingly, in addition to dealing with any causation issues, the plaintiff was required to prove whether:
· at the date of the hearing he suffered from impairment of function of the right shoulder and/or of the left shoulder which was permanent, in the sense that it was likely to last for the foreseeable future;
· any such impairment gave rise to pain and suffering and/or loss of earning capacity consequences which satisfied the “at least very considerable” test;
· at the date of hearing he was suffering from permanent severe mental or permanent severe behavioural disturbance or disorder and, if so, whether the pain and suffering and/or loss of earning capacity consequences of this injury were “at least very considerable”.
26 As I understood the submissions, the defendant alleged a failure on the plaintiff’s part to appropriately separate or distinguish any consequences of impairment of the right shoulder from any consequences of impairment of the left shoulder. In this regard, the plaintiff relied on the contribution of two separate organic injuries to the same consequence or consequences, which when assessed as a whole amounted to serious injury.[16] The example given was of bilateral impairment of the shoulders where impairment of each shoulder contributed to an inability to lift by hand.[17]
[16]TN 158 and 194-195
[17]TN 194-195
27 It was acknowledged at hearing that where, as in this case, the plaintiff suffered injury to more than one body function, the injuries could not be aggregated.
28 I have proceeded on the basis that the consequences, if any, of injury to a body function, for example, the left shoulder, must be identified and assessed separately to the consequences of injury to another body function, the right shoulder, as at the date of hearing. Permanent work-related impairment of the left shoulder may restrict the plaintiff’s ability to lift with his left arm and may also cause problems when the plaintiff tries to lift using both arms. The resolution of this question, however, depended in the main on consideration of the medical evidence, which tended to concentrate on the consequences of impairment of the dominant right arm and did not consistently attribute a consequence or consequences to impairment of one shoulder or the other.
29 The defendant further alleged that the plaintiff’s complaints in respect to either arm were functional, that is to say impairment of the right shoulder and/or the left shoulder was not mediated by organic factors.[18] This argument had two aspects to it. Firstly, pursuant to section 134AB(38)(h) of the Act, the consequences of the psychiatric injury were only relevant to assessment of the paragraph (c) application for leave. If, as in this case, mental illness rendered the plaintiff psychiatrically unfit for work, this factor could not be taken into account in the assessment of the consequences of any physical injuries.
[18]TN 151-152
30 Secondly, where the issue of disentanglement arose, it was necessary to first determine whether there existed a substantial organic basis for the pain and suffering and/or economic loss consequence of the right shoulder injury and/or the left shoulder injury.[19] If not, the plaintiff was required to “disentangle” the physical contribution to the pain and suffering and/or economic loss consequence alleged from the psychological in order to satisfy the Court that the consequence attributable to compensable right shoulder injury and/or compensable left shoulder injury satisfied the statutory test.[20] The plaintiff relied on the medical evidence summarised in greater detail below, which clearly distinguished the organic from the non-organic injuries, such that I was satisfied of the existence of a substantial organic basis for each of the shoulder injuries.[21]
[19]TN 42 and 151- 153
[20]See MeadowsvLichmore Pty Ltd [2013] VSCA 201, [19]
[21]TN 210-211
31 As to the economic loss claims, it was common ground that the plaintiff’s without injury earnings figure (namely, the sum that most fairly reflected his earning capacity had the injury not occurred[22]) was $57,878 gross per annum, 60% of which was $34,727 gross per annum.[23] In short, in order to meet the statutory test in respect to any compensable injury alleged under paragraphs (a) or (c), the plaintiff was required to prove a permanent loss of earning capacity of $23,151 gross per annum or more.
[22]Section 134AB(38)(f)(i) and (ii)
[23]TN 154
The evidence
32 Whilst the plaintiff clearly understood some spoken English, he was cross-examined at length through an interpreter. The material tendered from the Plaintiff’s Court Book[24] comprised the plaintiff’s affidavits sworn on 2 July 2012 and 12 February 2014 respectively; the affidavit of his wife, Khadija Khairi sworn on 12 February 2014; various results of radiology obtained between 30 August 2004 and 2 October 2012; reports from treating doctors (general practitioners, Dr White and Dr Hamimi and specialists Mr Razif, Mr Leong, Dr Patrick, Dr Tampiyappa); reports from treating physiotherapists, Mr Norman and Mr O’Keeffe; reports from medico-legal specialists retained by the plaintiff, orthopaedic surgeon Mr Miller and psychiatrist, Dr Epstein; correspondence notifying the plaintiff of acceptance of liability; extracts from Southern Health records and a Vocational Assessment report prepared by occupational therapist, Ms George.
[24]Exhibit P1
33 The affidavit of the plaintiff’s wife was relied on only to the extent that it contained admissible evidence of her observations of any limitations on the plaintiff’s activities and any changed behaviour. For instance, at paragraph 6 the plaintiff’s wife deposed as follows:[25]
[25]PCB 17
“3. I am able to say… that since suffering the injuries he has been chronically disabled by ongoing debilitating pain and impairment of function in the right shoulder and upper limb (sic). This has impacted upon his involvement in our family activities and in his performance domestic and recreational activities…
4. I am aware that the Plaintiff has used a variety of medications and other treatments to try and relieve his right shoulder and upper limb symptoms without lasting effect. He has been forced to place greater strain on his left shoulder in order to perform a limited role within the family.…
6. The Plaintiff suffers from lack of sleep and has been prescribed sleeping tablets. Last year the plaintiff would go out in the middle of the night and sit in the park by himself. The Plaintiff’s memory and concentration have been affected. The Plaintiff often sits by himself and cries. He does not want to socialise with his friends and avoids interacting with his family, even with his kids. To my observation, the Plaintiff’s lifestyle has been considerably affected as a result of the injuries which he has sustained.…”
34 The plaintiff also tendered extracts from the clinical records of Dr Hamimi for attendances between 7 April 2011 and 10 January 2013 inclusive.[26]
[26]Exhibit P2
35 The defendant tendered extracts from the Defendant’s Court Book[27] comprising an affidavit sworn by the employer’s managing director, Steven Moutzouris on 7 September 2011, the reports of its specialist, rheumatologist, Dr Fraser and psychiatrist, Dr Entwisle, correspondence from the employer concerning the return to work duties dated between 14 October 2004 and 20 March 2006 and a labour market analysis report, correspondence and updated labour market analysis report from Nabenet.
[27]Exhibit D1
36 Film obtained on 17 and 19 May 2011 was shown during the course of the hearing. The defendant tendered this surveillance footage.[28] Admissions were made by the defendant which confirmed further surveillance on 13 May 2011, 6 February 2012, 10 February 2012, 18 May 2012, 13 January 2014 and 11 February 2014.[29] Further footage was obtained on some of these dates. In accordance with the submission made on the plaintiff’s behalf, the inference I drew from this was that the additional surveillance evidence would not have assisted the defendant’s case.[30]
[28]Exhibit D2
[29]TN 95-97
[30]TN 181
37 The defendant tendered extracts from the clinical notes and a copy of a Southern Health Discharge Summary, which indicated the plaintiff was last seen on 28 May 2013.[31]
[31]Exhibit D3
38 Lastly, I refused the defendant’s application (opposed by the plaintiff) to tender on the third day of hearing a further report dated 4 March 2014 prepared by psychiatrist, Dr Entwisle. This report was received by the plaintiff’s representative by fax at 9:36 am on 5 March 2014. The parties had, the day before closed their cases and the tender process had been completed, subject to my final ruling on the inclusion of three further categories of document.
39 It seems that due to the late inclusion of the claim under paragraph (c) of the definition of serious injury, some medical records were sent by the plaintiff’s solicitors to the defendant. In his report dated 28 February 2014,[32] Dr Entwisle commented on records from Dr White’s clinic but not on records from Dr Hamimi. I was told the psychiatrist’s further report dated 4 March 2014, while requested by the defendant to overcome this omission, still did not discuss Dr Hamimi’s records. The defendant, nevertheless, sought to tender the report, ostensibly to meet the obligation to exchange reports. In these circumstances, I refused to grant leave to add the report to the Court Book materials already tendered as Exhibit D1.
[32]DCB 37(i)
40 Dr Fraser was the only doctor to question the plaintiff’s reactions during clinical examinations. I did not, however, form an adverse impression of the plaintiff as a witness. He presented as an unsophisticated individual with a serious psychiatric illness, who appeared to do his best to answer the questions posed through an interpreter. The plaintiff’s attempt to explain the circumstances of recent episodes of conflict with members of his family was, nonetheless, confused and suggested a reluctance on his part to accept the likely seriousness of these events which occurred during a period of deterioration in his mental state. Otherwise, I found the plaintiff’s account in his affidavit and oral evidence mostly consistent and plausible.
Shoulder injury/injuries – investigation and treatment between 2004 and 2014
41 The plaintiff’s first specialist examination was with Mr Leong on 1 September 2004,[33] at which time the surgeon noted the plaintiff was receiving conservative treatment for the bicep tendon injury (physiotherapy and simple analgesics). Initially, Mr Leong unsuccessfully treated the trigger finger condition with cortisone injections.
[33]PCB 39-40
42 I was told the plaintiff received weekly compensation payments totalling $3,104 between 3 September 2004 and 15 October 2004. He returned to work from about 19 October 2004.[34] The return to work correspondence from the employer indicated, among other things, a return to alternative duties on normal hours, with exercise periods for 5 minutes every 2 hours and restrictions on lifting more than 5 kgs and on repetitive lifting and grasping.[35]
[34]PCB 4
[35]DCB 38
43 The evidence of the plaintiff (largely confirmed by the employer’s general manager, Mr Moutzouris and the return to work documents tendered[36]) shows that the return to work duties, so modified, involved putting liners in boxes, taping cardboard boxes and using an electric saw to cut chickens.[37]
[36]DCB 5 and 38-52
[37]PCB 4-5 and TN 31
44 On 22 November 2004, in the treatment of the trigger finger condition, Mr Leong performed an open decompression procedure.
45 Further correspondence for return to work plans dated 4 January 2005, 28 February 2005 and 23 March 2005[38] show that, throughout this period, after consultation with Dr White, constraints, particularly on lifting with the right arm and exercise and rest periods were continued.
[38]DCB 39-42
46 In March 2005, the plaintiff complained to Mr Leong of pins and needles in his right hand, although as the surgeon noted, the plaintiff’s main concern was chronic right shoulder pain. The surgeon ordered, a nerve conduction study and x-rays of the plaintiff’s hand, wrist, elbow and shoulders. The results of these investigations were reported as normal, thereby eliminating the earlier trigger finger condition as a cause of the symptoms reported and, it follows, as a cause of the plaintiff’s continued unfitness for normal duties.[39]
[39]PCB 39 and correspondence from the defendant to the plaintiff dated 28 April 2005 concerning his return to work, DCB 44
47 As mentioned, at this time, medical constraints, exercise and rest periods and modified duties were continued. This was on the understanding that the latest return to work plan would be reviewed after the plaintiff’s attendance on Mr Razif. He was first seen by this specialist on 18 May 2005, at which time the specialist was informed by the plaintiff that he had experienced aching in his right shoulder after developing swelling in his right upper arm in association with the grate incident a year earlier.[40]
[40]PCB 36
48 On examination the plaintiff presented with tenderness anteriorly on the greater tuberosity and on the trapezius to palpitation and distal contraction of the biceps. He apparently demonstrated a good range of movement.
49 Mr Razif diagnosed chronic rupture of the right long head of the biceps and right rotator cuff tendonopathy and a strain. In doing so, the treating specialist clearly accepted the causal link between the grate incident, the rupture to the bicep tendon and right shoulder pathology. Dr Razif encouraged the plaintiff to maintain shoulder strengthening exercises, use deep heat and massage and avoid stress to the right arm.
50 For reasons not addressed in the evidence, the plaintiff did not return for review on 21 March 2005 as planned. However, when on 2 May 2005 the plaintiff attended for review, he reported aching in his right shoulder. The surgeon again found clinical evidence of right rotator cuff tendonopathy. He arranged for a repeat ultrasound of the shoulder. This investigation apparently did not reveal specific rotator cuff pathology or evidence of impingement with abduction to 90 degrees. As we now know, later investigations have shown shoulder pathology additional to the ruptured bicep tendon.
51 The plaintiff was last examined by Mr Razif on 23 May 2005. He was referred for physiotherapy and asked to return for review in four weeks time. As far as I can tell from the evidence before me, the plaintiff never returned for further treatment.
52 In his first affidavit, the plaintiff deposed to the onset of left shoulder pain approximately one year after the bicep tendon injury. He attributed this to increased use of his left arm.[41] I took this to mean overuse of the left upper limb in the performance of day-to-day activities and modified work duties, following the bicep tendon injury and the related right shoulder injury.
[41]PCB 5
53 As mentioned, during May 2005 the plaintiff presented to the general practitioner seeking treatment of left shoulder symptoms. This prompted an ultrasound investigation on 15 May 2005. The investigation, relevantly identified underlying pathology, namely bunching of the supraspinatus tendon at 60° of abduction, but not evidence of tearing or tendinopathy.[42]
[42]PCB 29
54 The new pathology evidently prompted referral to rheumatologist, Mr Patrick. He saw the plaintiff for the first time on 8 August 2005. The salient features of his earliest report are summarised as follows:[43]
[43]PCB 50-52
· ongoing employment on modified duties had led to improvement of the plaintiff’s right shoulder symptoms;
· examination of the right shoulder revealed normal function. I did not, however, understand this evidence to mean that the specialist believed the condition of the plaintiff’s right shoulder was such that he would ever be fit for unrestricted duties using his right arm;
· the plaintiff was seeking treatment in respect to pain and restriction in the left shoulder, which had developed over the preceding six months;
· there was clinical evidence of left adhesive capsulitis (restricted abduction, flexion and rotation) and, in keeping with the radiological evidence, impingement on abduction. Mr Patrick attributed the left shoulder condition to repetitive work use. Accordingly, even while performing light manual duties, which were no doubt intended to protect the plaintiff’s right shoulder, reliance on the plaintiff’s left arm had led to problems with his left shoulder;
· the plaintiff was prescribed oral steroids and placed on modified duties as a result of this condition;
· any gains were short lived;
· on 29 September 2005 the plaintiff underwent left shoulder hydrodilatation, which did not lead to improvement;
· MRI investigation of the left shoulder on 7 December 2005 identified supraspinatus tendinopathy and bursal inflammation;
· on review on 5 January 2006 the clinical findings were unchanged;
· the plaintiff, who impressed the rheumatologist as being keen to return to normal duties and function, was not, however, keen on any surgical intervention. Instead, he underwent subacromial bursa injection. Notably, Mr Moutzouris deposed the plaintiff had coped with modified duties without complaint. Moreover, he could not recall complaint of pain prior to the redundancy. His further evidence that the plaintiff had sought overtime “all the time”[44] was, no doubt, also intended to suggest that the plaintiff had coped well. However, allowing for the evidence of the treatment I have already described and Mr Patrick’s assessment of the plaintiff, a picture emerges of a man who, for some months after rupturing the bicep tendon and injuring the right shoulder, had pushed himself to perform normal processing and general cleaning duties. Having returned to light duties (albeit full-time) and despite the emergence of left shoulder pathology, the plaintiff continued to push for more work. This was because, as the plaintiff said, he was working to support his family still living in Afghanistan;[45]
[44]DCB 5
[45]TN 31-32
· when examined on 13 March 2006, the plaintiff presented with persistent symptoms to which Mr Patrick believed the plaintiff’s work contributed;
· the plaintiff again rejected the idea of surgical intervention and underwent a further hydrodilatation procedure on 2 May 2006; and
· in March 2006 in respect to the left shoulder condition, Mr Patrick envisaged a further 12 to 18 months on modified duties, before the plaintiff would be ready to attempt a gradual return to his earlier duties. Accordingly, in the months before the plaintiff was made redundant, quite apart from the right shoulder condition, the left shoulder condition prevented a return to the plaintiff’s pre-injury normal duties.
55 The employer rejected the allegation that the redundancy had been driven by the plaintiff’s inability to perform normal duties. [46] The plaintiff, nonetheless, remained unfit for normal duties until the redundancy took effect in May 2006. Accordingly, based on the evidence summarised so far, when made redundant, due to each shoulder injury the plaintiff was probably unfit for his pre-injury duties as a process worker. However, the treating surgeon had not then ruled out the possibility that the condition of the left shoulder would recover sufficiently to permit a return to normal duties.
[46]PCB 5 and DCB 1-2
56 Evidently there was some unsuccessful attempt through Centrelink to assist the plaintiff to return to alternative employment.[47] He has never returned to gainful employment and is now in receipt of a disability pension.
[47]PCB 7, 37 and 70
57 It was the plaintiff’s case that impairment of both shoulders continued to disable him for work and in the performance of his day to day activities.
58 On various occasions between May 2006 and 2012, the plaintiff reported episodes of exacerbation of pain and symptoms and he underwent further investigation of and treatment for right and/or left shoulder pain and symptoms.
59 For instance, ultrasound investigation of the right shoulder on 9 July 2008 indicated likely ongoing problems with the right shoulder (“…Intrasubstance tear of the supraspinatus tendon, most likely tendinopathy of the supraspinatus tendon. Subacrominal bursitis. If clinically indicated, ultrasound guided cortisone injection could be performed[48]).
[48]PCB 30
60 A report from physiotherapist, Mr Norman, showed that on 22 August 2008, the plaintiff was assessed at the request of Campbell Page. [49] At the time, the plaintiff reported increased and strong right shoulder pain after lifting shopping (a quantity of Coca-Cola weighing more than 5 kg) a week earlier. Among other matters, the plaintiff reported only short-term relief from regular injections into the shoulder, poor sleep due to pain and trouble lifting his right arm over his head due to pain and weakness.
[49]PCB 37-38
61 In short, whilst Mr Norman thought that strengthening exercises could improve power, his evidence helped establish a probable permanent loss of power in the plaintiff’s right arm, following injury to the bicep tendon and, probable permanent limitations on performing duties other than modified duties with restrictions on lifting.
62 On two occasions during February 2011, the plaintiff attended Dr White for treatment of shoulder pain. On the first of these, he complained that changing a tyre on a car had exacerbated right shoulder pain. The doctor prescribed anti-inflammatory and strong analgesic medication. However, further investigation of the left shoulder was prompted by a later attendance on 28 February 2011, when the plaintiff reported the sudden onset of left shoulder pain whilst attempting to open a train door.[50] At this attendance, the doctor prescribed Panadeine Forte and instructed the plaintiff to avoid reaching upwards with the left arm.[51]
[50]PCB 46 and 56 and the plaintiff’s first affidavit, PCB 6
[51]PCB 46
63 On 17 March 2011, following a further complaint of right shoulder pain, the plaintiff was again referred to Mr Patrick.
64 The plaintiff swore his first affidavit on 7 April 2011, which was also the date of his first attendance with Dari speaking general practitioner, Dr Hamimi at the Dandenong West Medical Centre. In his first affidavit, the plaintiff relevantly deposed as follows:[52]
[52]PCB 5-6
“8. In respect of the right upper arm injury I understand that I have a torn right biceps tendon. I get constant pain in this region and this pain is increased with too much activity. The pain merges with right shoulder pain which I also suffer from. I can no longer lift heavy weights with my right arm and I often wake in pain if I roll onto my right side when sleeping. To try and avoid this I normally sleep with pillows on the side of my right shoulder. I often get right shoulder pain and I have a decreased range of movement in it.…
9. I am right hand dominant and I now have to try and carry out many activities using my left hand. I now tend to shave using my left hand and I also predominantly wash my hair using my left hand.… The left shoulder pain appears to be getting worse.
….
11. I continue to see Dr White and for pain relief I take Panadeine Forte approximately 2 to 3 times a day. I also sometimes take Valium to assist me in sleeping at night.…
15. I sometimes suffer from severe exacerbations of shoulder pain. For example when lifting my baby I sometimes feel a sudden increase in shoulder pain, and more recently in opening a train door I felt a lot of left shoulder pain which led me attending the Dandenong Hospital(sic).”
65 Dr Hamini’s report and the extracts from his clinical notes[53] confirm that on 7, 9 and 27 April 2011, Dr Hamimi treated the plaintiff for neck pain. Notably, on 9 April 2011, the doctor prescribed small doses of an anti-depressant, Endep and a sedative, Temaze (one 10mg tablet of each nightly). The report and the clinical notes, are silent on whether Endep, which is also used in the treatment of pain, was prescribed in the treatment of any mental health issues. On the contrary, both the written report and clinical notes indicate that the first consultation by Dr Hamimi for treatment of mental health was on 26 June 2012.
[53]PCB 49(d) and Exhibit P2
66 Mr Patrick reviewed the plaintiff’s shoulder conditions on 13 April 2011 and 17 May 2011. The salient features of Mr Patrick’s report dated 18 June 2012 are summarised as follows: [54]
[54]PCB 53-54
· as at 13 April 2011, the plaintiff reported neck and shoulder girdle dysfunction, which was worse on the left side particularly with abduction and flexion movements above shoulder height;
· cervical spine x-rays obtained by the general practitioner on 7 April 2011 revealed lower cervical spondylosis particularly at C5/6;
· examination revealed a greater range of movement than when last seen in 2006. The left shoulder abduction and flexion was to 140° without evidence of impingement. The radiology of the left shoulder, obtained by the general practitioner in February 2011,[55] revealed minimal change from 2006, namely shoulder tendinosis with possible intrasubstance tear but no other significant abnormality. If nothing else, this evidence clearly indicated underlying pathology from before the redundancy;
[55]PCB 31
· the range of both active and passive function of the right shoulder was normal, although Mr Patrick found some weakness on resisted elbow flexion which he thought might be indicative of the biceps impingement previously noted;
· Mr Patrick prescribed oral steroids for treatment of both cervical facet joint irritability and shoulder capsular problems;
· the plaintiff was re-examined on 17 May 2011. On this occasion, Mr Patrick found the function of the left shoulder unchanged, with more significant restriction in the right shoulder;
· Mr Patrick considered the worsening capsular restriction in the right shoulder warranted right shoulder hydrodilatation. He also recommended blood tests to exclude any underlying systemic inflammatory arthritis problems (these tests were all normal). It appears however, the plaintiff travelled to Afghanistan without undergoing the hydrodilatation procedure.
67 Accordingly, when examined by the treating surgeon on 17 May 2011 there was clinical evidence of deteriorating right shoulder function and, whilst the function of the left shoulder was unchanged, there was radiological evidence of pathology which helped explain the symptoms reported.
68 Surveillance film obtained on 17 and 19 May 2011 (16 minutes and 23 seconds in all) was shown at hearing. On 17 May 2011, between approximately 1.20 pm and 1.35 pm the plaintiff was captured moving between a Salvation Army store and his small van. Initially he was seen carrying and loading into the boot and from the side his van, what appeared to be, no less than 8 dining room style chairs. Later on, the plaintiff was filmed at home, with his wife performing most of the unloading operation.
69 During the course of the loading operation, the plaintiff mostly carried the chairs in his left hand and, as he explained under cross-examination, he appeared to use his right hand to help lift, steady or manoeuvre each chair. The plaintiff clearly had trouble arranging the load in the van, such that there were times when he reached into the van to manoeuvre the load, using both shoulders, with arms extended.
70 The plaintiff was also seen using both hands to close particularly the door to the boot, which he eventually tied closed with a shirt. Contrary to any suggestion during cross-examination that the right arm/hand had not been used to close the boot, when performing this manoeuvre, the plaintiff used his right arm, with elbow flexed, to push down the boot door.
71 Some minutes after leaving the store the plaintiff was seen in the driveway of his home where he opened the boot with his right arm before carrying a chair into the house in his left hand. His wife subsequently moved back and forth between the van and house, unloading the vehicle.
72 On 19 May 2011, the plaintiff was filmed for very short periods either walking, as it turned out very quickly and swinging his arms or driving a sedan motor vehicle.
73 Under cross-examination, among other things, the plaintiff:[56]
[56]TN 88-91
· noted that each chair weighed under five kilograms;
· was keen to emphasise the fact that he had carried the chairs mainly in his left hand with some assistance from his right hand. In effect, the plaintiff said he only used his right arm where necessary;
· agreed he drove his vehicle that day but said he did so of necessity because on that day he had to drive his children to school and collect the chairs;
· said his wife had not travelled that day to assist him because she was caring for the youngest child;
· confirmed his evidence that he did not take medication (particularly the strong painkilling medication, Endone) when he had to drive and had not done so on 17 May 2011 (“During the day I did not take but at night I took three of them, my doctor advised me to take two but I took three (sic)”[57]);
[57]TN 88
· appeared to recall that he had experienced pain when lifting the chairs (“Every time I lift up something I get that throbbing pain”[58]) but continued because this was the only option available to him to bring the chairs home;
[58]TN 89
· described the pain experienced that night as: “really excruciating”. [59] This was, the plaintiff said, why he took three morphine-based painkilling tablets;
[59]TN 89
· agreed he used some force to close and tie the boot closed with a shirt;
· agreed he had used some force to push one chair when it was stuck. This activity, the plaintiff explained was why he needed extra painkilling medication that night;
· said it was his habit since childhood to walk very fast and swing his arms. However, sometimes this caused pain at which time the plaintiff said he held his left hand on top of the right hand in front of his body. This action apparently reduced the throbbing and helped the plaintiff relax.
74 In all, I could see no glaring inconsistency between the plaintiff’s activities as filmed and Mr Patrick’s clinical findings on reviewing the plaintiff on 17 May 2011.
75 Notably, the defendant’s specialist, rheumatologist, Dr Fraser examined the plaintiff on 27 May 2011, within days of the defendant having obtained the surveillance film. On this occasion, the plaintiff apparently reported ongoing right shoulder girdle pain (with current medication consisting of Endone, Mobic and Diazepam) but only “slight” left shoulder pain, which he said was relieved by taking simple analgesics.[60]
[60]DCB 22
76 Dr Fraser evidently never saw the film or, on this occasion, any of the radiological reports for either shoulder. However, leaving to one side the reported overreaction when physically examined by Dr Fraser, his clinical findings of restricted and painful movement of the right shoulder only, were nonetheless compatible with Mr Patrick’s findings ten days earlier.[61]
[61]DCB 23
77 As far as I can tell, orthopaedic surgeon Mr Miller, who examined the plaintiff at the request of his solicitors on 15 December 2011, [62] some seven months after the surveillance film was obtained, was the only doctor to comment on the surveillance footage obtained on 17 May 2011.
[62]PCB 82-87
78 Whilst Mr Miller noted greater range of abduction and forward elevation than observed during his examination in December 2011, he saw no basis for altering his conclusions that, firstly, the plaintiff was suffering from significant ongoing symptoms following rupture of the biceps tendon and probable development of rotator cuff pathology and, secondly, there were problems with the left shoulder with probable development of capsulitis. Mr Miller, nonetheless, believed that there had been a reasonable response to treatment and his prognosis for the left shoulder was good.
79 Mr Miller’s assessment of the film was persuasive both because it reflected my assessment of the limited activity captured on film on 17 May 2011 and because I have accepted Mr Miller’s explanation that it was not uncommon for people with the plaintiff’s shoulder pathology to demonstrate variations in the range of function on a particular day, depending on the level of their symptoms.[63] I will discuss the evidence of Mr Miller and Dr Fraser in more detail shortly.
[63]PCB 95
80 On 2 November 2011, Dr White was told by the plaintiff that he had fallen two weeks earlier on his clenched left hand. An X-ray of the hand showed no abnormality.[64]
[64]PCB 46
81 On 6 January 2012, further ultrasound of the right shoulder was ordered by Dr White. Notably, this reported a small partial thickness tear of the deep surface of the supraspinatus tendon, with dynamic studies also indicating extreme limitation of movement.[65]
[65]PCB 33
82 In a report dated 19 June 2012, among other things Dr White informed the plaintiff’s solicitors that, at various times since the fall in the latter part of 2011, his patient was prescribed Tramal, Endone and Panadeine Forte for pain, Temazepam for insomnia and the anti-inflammatory, Mobic.[66] He considered the plaintiff capable of performing light work, although both shoulder injuries incapacitated the plaintiff for pre-injury employment, for heavy manual work and for work involving reaching upwards with either arm.[67]
[66]PCB 46
[67]PCB 47
83 Dr White was also asked to comment on the suitability of a number of occupations identified in the Nabenet labour market analysis report dated 16 November 2011 tendered by the defendant.[68] Notably, Dr White thought the plaintiff’s poor level of education and command of English precluded employment as a Petrol Station Attendant. He did not, however, rule out a return to work in the various process worker occupations mentioned, but only if these involved self-paced, not machine-paced work.[69] I will discuss the doctor’s further evidence concerning the plaintiff’s mental health issues shortly.
[68]DCB 53
[69] PCB 47
84 At this juncture it is appropriate to note that, when examined by Dr Epstein in December 2013, the plaintiff recalled the onset of auditory symptoms from April or May 2012. He said he heard voices in his head and his name being called out (“He found them very distressing. He was frequently in tears”[70]). This evidence together with Dr Hamimi’s report and clinical notes suggest that, during 2012, whilst still undergoing treatment for his shoulder conditions, the plaintiff experienced a significant deterioration in his mental health. Based on the plaintiff’s reports, he probably first experienced auditory hallucinations from about April or May 2012, whereas the medical records suggest that the plaintiff was first treated for depression by Dr Hamimi on 26 June 2012.
[70]PCB 107
85 The plaintiff’s second affidavit was sworn on 2 July 2012. On that date the plaintiff relevantly deposed as follows:
“4. I still continue to suffer from pain and disability in my upper right arm in the manner referred to in my earlier affidavit. I have constant pain in the right biceps area and with too much activity I get more pain. I also get pain going into my right shoulder region. I am restricted in my ability to use my right arm and I cannot lift as heavy weights (sic).
5. … I often wake at night when I roll onto my right side. I feel as though I have a decreased range of movement in my right shoulder. The right biceps region still has a very unnatural appearance. The pain in the right biceps and shoulder region is far worse late of a night time.
6. I still remain restricted in my ability to carry out domestic and leisure activities…. I note that son normally mows the lawn as mowing the lawns aggravates the right biceps and right shoulder pain a lot. I cannot carry out heavier housework such a vacuuming or cleaning the floors and lifting heavier items is more difficult(sic). If I drive too far I get an increase of right biceps/shoulder pain. The right bicep/shoulder injury restricts me in my ability to play and interact with my children which I find very disappointing.…
7. I note that I also still suffer from some pain and disability in my left shoulder if I am using my left arm too much because of the right bicep/shoulder pain.”[71]
[71]PCB 9-10
86 On 5 July 2012 the plaintiff reported mid right arm pain to Dr Hamimi, who ordered a further ultrasound of the right arm on 6 July 2012. This investigation confirmed the pathology revealed by successive ultrasound investigations since 2008, namely a partial tear in the supraspinatus tendon.[72] This pathology and the ruptured bicep tendon clearly provide an organic basis for complaints of ongoing disability and pain worsened by activity.
[72]PCB 34
87 It appears that on 23 August 2012 there was an incident between the plaintiff and his son. This was documented in Dr Epstein’s report[73] as an assault. The assault apparently led to the plaintiff attending the Emergency Department of the Dandenong Hospital for treatment of an ankle sprain. Under cross-examination the plaintiff gave evidence to the effect that, after he confronted his son who had not been attending school, his son pushed him and he fell injuring his right ankle.[74]
[73]PCB 119
[74]TN 57-58
88 I note that Mr Patrick examined the plaintiff in the weeks before the incident with the plaintiff’s son, on 8 August 2012. The plaintiff was then taking Lyrica, a drug commonly used in the treatment of neuropathic pain, his dosage of Endep had been increased to 20 mg nightly and he reported using Endone as needed.[75]
[75]PCB 57
89 Importantly, the plaintiff’s problems with shoulder pain were ongoing. Apparently, abduction and flexion of the right shoulder was restricted to 100°, compared with significant improvement to 160° in the left shoulder. After further right shoulder hydrodilatation failed to resolve the problem, on 12 September 2012, Mr Patrick ordered MRI studies of the right shoulder.
90 The studies undertaken on 2 October 2012[76] were reported as having revealed tendinosis of the right rotator cuff, a partial tear of the right biceps tendon and a “type III” superior labral tear.
[76]PCB 35 and 57
91 When last reviewed by Mr Patrick on 20 December 2012,[77] the treating surgeon relevantly reported as follows: [78]
· the pathology revealed on imaging and the failure of conservative treatments to address ongoing discomfort and aching particularly at night and to improve movement (then restricted to 90 degrees) indicated a need for surgical assessment and management. To this end, Mr Patrick recommended referral to the Orthopaedic Clinic at Monash;
· as to his capacity for work, whilst the plaintiff was not fit to return to his pre-injury duties, he was capable of performing light work, subject to restrictions on lifting (non-repetitive and not beyond 5 kg) and no sustained above shoulder height work. These restrictions clearly applied to the right shoulder and required consideration when determining whether, having regard to the definition of “suitable employment”, the plaintiff had satisfied the onus of showing that he had no capacity to earn income or to earn income above the statutory threshold in suitable employment. I could not however, determine from Mr Patrick’s report whether, independently of the right shoulder condition, he also considered the condition of the left shoulder limited the plaintiff’s capacity for work to the extent described.
[77]PCB 56-58
[78]PCB 58-59
92 The reports of Dr White made on 6 March 2013 and 24 February 2014[79] confirm the plaintiff was referred to Orthopaedic Outpatients at the Monash Medical Centre.
[79]PCB 48-49(b)
93 A report from Southern Health physiotherapist, Mr O’Keeffe indicated that on 26 February 2013, on referral from Dr White, the plaintiff was treated for right shoulder pain. When offered the option of further physiotherapy and/or an orthopaedic opinion, the plaintiff apparently opted to seek specialist opinion first .[80]
[80]PCB 59-60
94 The plaintiff swore his third and final affidavit on 12 February 2014. In this affidavit he relevantly deposed as follows:[81]
[81]PCB 12-14
“2. … the symptoms of pain and disability affecting my right upper limb and shoulder are if anything worse with the passage of time. I find that I continue to suffer constant but variable levels of pain. The only way I can obtain relief from pain is to try and avoid activities which place in any strain upon those parts of my body. The symptoms are aggravated by straining those parts of my body, lifting or gripping of objects. I continue to suffer from a phenomenon where my right biceps tendon is dropped somewhat and in an unnatural appearance.
3. The difficulties to which I have referred have been present over a long period of time… I have been forced to try and avoid using my right upper limb and shoulder as much as possible and this has meant that I have placed greater strain upon my left shoulder and upper limb…
4. I am restricted my social domestic and recreational activities. I still have five of my six children at home and they are able to assist my wife around the house with domestic chores, vacuuming and cleaning, outdoor chores such as mowing the lawns and maintaining our property and taking the rubbish bins out. I try to limit the physical activities I undertake because such activities lead to a deterioration in my level of symptoms. My social life is restricted and I’m not nearly as socially active as previously. I do attend the mosque for prayers on Friday but otherwise spend most of my time pottering around the house.
...
7. I continue under the care of Dr White at Dandenong City Clinic but also in my recent times have been attending Dr Hamini (sic) who is able to converse with me in Persian and he practices at the Dandenong West Medical Centre. I have been prescribed by my local practitioners a number of medications including Panadeine Forte for relief of pain and I take up to eight tablets a day. I have previously been prescribed morphine in the form of Endone but no longer use that medication. I also have been prescribed a number of other medications including Valium as a relaxant and an anti-depressant medication Endep. I have also been prescribed Olanzapine which I understand is an anti-psychotic medication.”
95 Under cross-examination the plaintiff relevantly explained as follows:[82]
[82]TN 61-64 and TN 80-84
· lifting and gripping objects aggravated pain in his right upper limb and shoulder;
· at times he was unable to avoid these activities and as a consequence he suffered pain;
· the weights lifted varied. Sometimes it was very painful after lifting a two kilogram weight and, sometimes, if the plaintiff lifted perhaps a six, seven or eight kilogram weight within a short time the arm was “really painful”;[83]
[83]TN 62
· he tried to limit arm activity when walking by placing one hand over the other;
· orally and through demonstration the plaintiff indicated that with elbows bent he was able to lift both arms to slightly over 90°. This movement evidently produced really sharp stabbing like pain on the top of both shoulders;
· he was only able to afford a manual vehicle. Driving now causes pain in both shoulders. Gripping the steering wheel caused pain (“just a little bit”[84]). When driving the plaintiff said he experienced a worsening of the sharp stabbing pain in the right shoulder experienced by him when sitting at home. The pain in the left shoulder was similar, although the right shoulder was more painful (“the right one is unbearable”[85])
· all activities worsen the right arm pain;
· he took Panadeine Forte and other painkillers and Mobic when he was in pain. The painkillers helped numb the pain, although driving interfered with his medication regime because some medications made him dizzy and, as he had on the day the film was obtained, he delayed taking medication when driving.
[84]TN 81
[85]TN 83
96 Dr White’s reports, among other things, further indicated as follows:
· prescription of various medications to relieve pain in the plaintiff’s right shoulder, including Lyrica, Mobic, Tramadol, Codalgin Forte (another pain relief medication) and Endep;
· in February 2013, the plaintiff presented to Dr White’s clinic in an extremely distressed state. The CAT team was contacted and the plaintiff was treated for severe depression and psychotic symptoms. Evidently, the two general practitioners spoke by telephone on 14 February 2013 at which time, as mentioned, Dr Hamimi, suggested bipolar disorder as a diagnosis;
· in Dr White’s opinion unremitting shoulder pain was one of multiple sources of stress impacting on the plaintiff’s mental state. In other words, a general practitioner, who has treated the plaintiff for work-related bicep tendon and shoulder injuries since the grate incident, has accepted the causal link between the physical injuries and the later onset of severe mental illness.
· in March 2013, Dr White understood that the plaintiff was due to undergo surgery to his right shoulder in two months time. As we now know from the plaintiff’s further evidence-in-chief at hearing,[86] when the plaintiff arrived at the head of the waiting list he declined surgery (according to Dr White this surgery contemplated repair of tears in the supraspinatus tendon and in the glenoid labrum[87]), apparently because the plaintiff had received advice that the success of this operation in reducing pain and improving capacity was low. The evidence of Dr Hamimi, however, suggested fear was also a factor in the plaintiff’s decision not to undergo surgery;[88]
[86]TN 28
[87]PCB 48
[88]TN 28-29
· in March 2013, the plaintiff continued to suffer pain in his shoulder, he was having difficulty sleeping and he was depressed;
· ultrasound investigation of the left shoulder on 28 August 2013 had identified tendinopathy of the supraspinatus tendon (“a trace of fluid in the long head of the biceps tendon sheath heterogeneity of the supra spinatus tendon but no tear”[89]) Dr Hamimi’s report shows that he ordered this investigation, as well as an ultrasound of the right shoulder, the latter revealing: “…chronic rupture musculotendinous junction of the biceps tendon. There is a 1.6x0.9cm full thickness tear of the supraspinatus tendon.”[90]Subsequently, on 9 September 2013, the plaintiff underwent injection into the subacrominal bursa of the left shoulder only;[91]
· in Dr White’s opinion both shoulder conditions were causing pain. The plaintiff was likely to experience weakness in his right arm, even after surgery to the right shoulder. This was not surprising, because of the chronic rupture to the biceps tendon. However, Dr White thought the pain in the plaintiff’s left shoulder should settle with conservative measures such as physiotherapy, hydrotherapy and the use of analgesic and anti-inflammatory medications;
· in February 2014, Dr White considered the plaintiff physically unfit for work, although until he underwent surgery, the doctor was reluctant to offer a final opinion on whether the plaintiff’s physical injuries would lead to total incapacity. Whilst the doctor did not comment of the consequences of the shoulder injuries separately, I think it is clear from his final report that, in his opinion both shoulder injuries contributed to the plaintiff’s current unfitness for work. Although the prognosis for the left shoulder with ongoing conservative interventions was probably good;
[89]PCB 49(a)
[90]PCB 49(m)
[91]PCB 49(m)
97 Dr Hamimi’s report dated 27 February 2014 was very general and, in parts, difficult to interpret.[92] In addition to the matters already noted in passing, the salient features of this report are summarised in the following points:
[92]PCB 49(c) to 49(n)
· The plaintiff’s current symptoms involved neck pain, headache, pain in both shoulders, delusion and depression. The doctor described the shoulder pain as “moderate”, improved by rest and worsened by activity. The plaintiff’s depression was described as severe, with psychotic features;
· medication prescribed (other than cholesterol lowering medication) comprised Endep, a sedative, Imovane, Mobic, Olanzapine, Panadol Osteo;
· examination of the shoulder (the report does not specify which shoulder ) revealed swelling, without further explanation, there were restrictions across the full range of movements, an inability to apply the scratch test (what this test involved was not explained) and the plaintiff reported pain when turning his thumbs up and down. Clinical examination also appeared to have revealed weakness in power affecting both upper limbs;
· Dr Hamimi diagnosed chronic pain affecting both shoulders, neck and back pain, headache, severe depression, anxiety, schizophrenia, irritability, extreme stress and insomnia. I did not understand the diagnosis of chronic pain to mean that this doctor considered the pain so described was non-organic; and
· Dr Hamimi noted that, whilst the plaintiff required shoulder surgery (presumably for his worsening right shoulder condition) he was too scared to pursue this at this time. He thought the plaintiff would benefit from physiotherapy and a regime of strengthening exercises but was presently unfit to resume his duties (which I took to mean the plaintiff’s pre-injury duties). Even with some symptomatic improvement, the doctor said there would be restrictions on bending and lifting. I was unable to understand the relevance of any restriction on bending to either shoulder injury.
Suitable employment – expert reports
98 It is convenient to discuss the expert evidence concerning suitable employment options before addressing the evidence of the two medico-legal experts.
99 In his final affidavit the plaintiff relevantly deposed as follows:[93]
“5. By reason of my injuries I have not been fit to resume employment since swearing of my earlier affidavits…
6. I believe that by reason of my injuries compounded by the fact that I have poor English language skills and functionally illiterate in English that I would be unable to return to the workforce in the future. My working life in this country has been spent in activities requiring the ability to undertake manual work and by reason of my injuries I am no longer fit to engage in such work.”
[93]PCB 13-14
100 On 9 November 2011, at the request of the defendant’s solicitors, a psychologist from the service, Nabenet assessed the plaintiff and provided a labour market analysis of vocations deemed suitable for an individual who had been employed as a Process Worker and reported work-related right bicep and right shoulder injury.[94] This was the report to which Dr White referred in his June 2012 report. The options identified as suitable employment in 2011 and revisited in a further report on 3 February 2014 were: Process Worker, Food Process Worker, Process Worker (Pharmaceutical), Petrol Station Attendant and Console Operator.
[94]DCB 53-59
101 On 3 February 2014, relying only on a letter of instruction and the earlier report, another psychologist and an occupational therapist provided an updated labour market analysis.[95]
[95]DCB 59(a)-(e)
102 I did not find the these reports as helpful as they may otherwise have been in determining whether there was employment for which the plaintiff was currently suited or with rehabilitation of retraining probably constituted suitable employment. Firstly, the author of the earliest Nabenet report appeared to proceed on the mistaken assumption that the plaintiff had coped well with light duties prior to the redundancy in 2006. On the contrary, having regard to the evidence already discussed I was satisfied that before being made redundant, the plaintiff probably had not coped with light duties using his right arm because he had compensated for the impaired function of his right arm/shoulder by overusing his left arm. As a result, he developed capsular symptoms in the left shoulder.
103 Secondly, whilst the analyses made took into account ongoing restrictions on lifting, reaching and repetitive right shoulder movements, I was unable to ascertain the extent to which the authors of the current report understood or considered the medical status of the plaintiff’s right shoulder as at February 2014.
104 Thirdly, the plaintiff’s modest education and basic literacy skills were very significant considerations in assessing whether suitable employment existed. Accordingly, I was surprised to read that the Nabenet specialists had recommended occupations as a Petrol Station Attendant or a Console Operator, in circumstances where both they and the occupational therapist engaged on behalf of the plaintiff agreed these positions called for customer service skills and an ability to process payments. Having read the Nabenet reports, I was left with the impression that, in compiling a list of occupations said to constitute suitable employment, too little consideration was given to factors such as the plaintiff’s age, education skills and work experience, not to mention the restrictions applicable to the right limb.
105 As mentioned, the plaintiff tendered a Vocational Assessment. This was prepared by an occupational therapist following assessment on 16 November 2011 (the Evidex report).[96] Errors in the history obtained, such as the assessor’s belief that the plaintiff had returned to perform alternative duties in around August 2004 for four hours a day, five days per week, did not, in my view, lesson the value of a report where each shoulder injury was considered separately and the range of factors, impacting on the plaintiff’s vocational options, were carefully assessed and analysed.
[96]PCB 64-81
106 Not the least of these factors was the plaintiff’s very poor English language and literacy skills. Apparently, the plaintiff participated in, but did not complete, an English course before commencing employment with the defendant, where he said he had relied on Afghani workmates to communicate with his supervisors.
107 The plaintiff reportedly speaks sufficient English to engage in basic conversation, but requires assistance for more complex verbal communications and he speaks with a strong Dari accent. The results of testing indicated that the plaintiff’s reading skills were the equivalent of a 6.8 year old and his spelling and writing demonstrated an inability to write and spell very basic words. These were circumstances, which the occupational therapist explained restricted access to occupations even where a basic level of language and literacy were a prerequisite for competency.[97]
[97]PCB 71
108 The occupational therapist concluded that in respect to each shoulder injury no recognised occupation in the open labour market, for which the plaintiff was likely to qualify, represented suitable employment.[98] In doing so, she considered the plaintiff’s pre-injury occupation as a Poultry Process Worker and other occupations based on the plaintiff’s qualifications and other work experience. The latter included employment as a Meat Packer and Food Factory Worker. The occupational therapist also considered occupations for which specific work experience was not required. These included working as a Sales Assistant, Service Station Console Operator, Waiter, Mail Clerk, Mushroom picker, School Crossing Supervisor, in Telemarketing and in ticket collection or as a Usher. In short, the physical demands of a number of these occupations required too much lifting, carrying, forceful pushing, pulling, reaching or movements involving one shoulder or the other. Whereas others were deemed unsuitable due to the plaintiff’s limited language and literacy skills.
[98]PCB 67
109 The plaintiff’s limited education, his language and literacy problems, his impaired physical capacity (by reason of either shoulder injury) and, at times, his use of strong painkilling medication all likely impact on his ability to undergo occupational rehabilitation or retraining. In my view, in combination these matters helped justify the occupational therapist’s further advice, the effect of which was that occupational rehabilitation or retraining was unlikely to improve the plaintiff’s capacity for employment in the future.
Shoulder injury/injuries – medico-legal evidence
110 As to the medico-legal evidence, the plaintiff relied on four reports from Mr Miller. In addition to the examination of the plaintiff on 15 December 2011, he reviewed the plaintiff on 26 July 2012 and 20 February 2014.
111 It is convenient, however, to commence with the reports submitted by Dr Fraser, who in addition to the examination on 27 May 2011, reviewed the plaintiff on 18 May 2012 and 30 January 2014.
112 When he examined the plaintiff in May 2011 and again in May 2012, it seems Dr Fraser either saw or read a summary of Mr Patrick’s earlier reports, but not the results of the multiple radiological investigations undertaken prior to 18 May 2012.
113 On the occasion of each of these examinations Dr Fraser’s clinical examination, among other things revealed restriction of movement of the right shoulder (on 18 May 2012 he also found diffuse tenderness about the shoulder) but unrestricted movement of the left shoulder (although on 18 May 2012 the plaintiff complained of slight discomfort at the extremes of abduction and flexion).[99]
[99]DCB 23 and 29
114 On 30 January 2014, among other things, Dr Fraser obtained some further history, which included evidence of the most recent treatment of left shoulder pain and restriction and he noted only some of the results of investigations carried out on both shoulders. His failure to also discuss the result of the MRI investigation of the right shoulder on 2 October 2012, or the result of the ultrasound investigation of the left shoulder on 28 August 2013 suggested that Dr Fraser had not seen these images or the reported results. As mentioned, the ultrasound investigation preceded the decision to undergo a further injection into the subacrominal bursa of the left shoulder on 9 September 2013.
115 In short, Dr Fraser concluded that only the injury to the bicep tendon was work-related. This he noted, had permanently incapacitated the plaintiff for work requiring heavy lifting or any forceful use of the right arm. Accordingly, his reports and other correspondence all focussed on the plaintiff’s functional capacity for light work as a result of ongoing weakness caused by this injury, without consideration of the other pathology also affecting the function of the right shoulder.
116 Dr Fraser’s letter dated 7 February 2014,[100] informed the defendant that, in his opinion, the plaintiff could exercise a light work capacity in the occupations identified as suitable employment by Nabenet on 3 February 2014,[101] namely employment as a Process Worker, Console Operator and Packer and Food Processing Worker.
[100]DCB 30(d)
[101]DCB 59(a)
117 I did not find Dr Fraser’s evidence persuasive for the following reasons:
· Dr Fraser’s conclusions were less reliable because if this evidence was available to him, he disregarded Mr Razif’s full diagnosis in 2005 and he misunderstood the timing of the left shoulder adhesive capsulitis condition. These matters probably contributed to his view that the plaintiff’s shoulder symptoms were not work-related and exaggerated.[102] The evidence, however, has revealed that in early 2005, Mr Razif’s clinical examination also indicated right rotator cuff pathology and a strain of the right shoulder and, further, that the left shoulder symptoms probably emerged after the plaintiff commenced modified duties in the latter part of 2004, well before the redundancy in May 2006;
· The correspondence from the Authority’s agent dated 30 March 2011 shows that, following specialist medical assessments, in the months preceding Dr Fraser’s first examination, the defendant accepted liability for compensable injury to the bicep tendon and to each shoulder. As we now know the radiology then available in respect to particularly the right shoulder had already identified a tear of the supraspinatus tendon, likely tendonopathy and subacromial bursitis. However, without further explanation, at hearing the defendant relied on Dr Fraser’s evidence the effect of which was to deny the relationship between work-related injury and the shoulder pathology and the presence of any continuing organic basis for the restrictions and disability affecting each shoulder;
· the evidence of the occupational therapist from Evidex provided a more careful and, in my view, expert assessment of whether the occupations to which Dr Fraser had regard or any other occupation currently met the definition of suitable employment under the Act.
[102]DCB 28
118 In summary, given the evidence of the history of injury, the investigations and treatment, I was not satisfied the views expressed by Dr Fraser in January 2014 about work-related right shoulder or left shoulder injury, reflected a sound understanding of all of the evidence. I reached this conclusion notwithstanding the differing prognoses for the left shoulder and the absence of any clear identification of the consequences to which impairment of each shoulder likely contributed.
119 Mr Miller did not have the benefit of the images of the reported results of investigations of each shoulder injury when he examined the plaintiff in December 2011 and July 2012. Moreover, having read his final report, I could only identify four of the eight radiological reports he said were received by him and I could not determine whether Mr Miller also had access to the most recent of the reports submitted by treating doctors, Mr Patrick and Dr White.
120 As we now know, imaging obtained in respect to the right shoulder during 2012 and, particularly the results of the MRI investigation ordered by Mr Patrick (but not mentioned by Dr Fraser or Mr Miller) have revealed ongoing pathology in the right shoulder.[103]
[103]PCB 35 and 57
121 In 2014, Mr Miller concluded that following injury to the right shoulder with rotator cuff pathology and the ruptured biceps tendon, the plaintiff had been left with significant ongoing symptoms. He also thought that capsulitis may be affecting the right shoulder, with the prognosis for this shoulder being only fair.[104] Whilst Mr Miller may not have been as well informed as he should have been, his findings and predictions in respect to this shoulder generally support those of the treating surgeon, who had the advantage of having treated the plaintiff over many years and, more recently had referred him for assessment for surgery to the right shoulder.
[104]PCB 100
122 The recent imaging obtained for the left shoulder did not also identify specific rotator cuff pathology. The plaintiff’s symptoms, however, were such that he underwent further injection in September 2013. Based on this, imaging and no doubt, the clinical evidence of restricted movement and diffuse tenderness, Mr Miller concluded that rotator cuff pathology and capsulitis were likely diagnoses.[105]
[105]PCB 101
123 Notably, in his assessment, Mr Miller linked each shoulder condition to work with the defendant and distinguished between the organic conditions affecting each shoulder and the evidence that the plaintiff was undergoing psychiatric treatment due to an adverse mental reaction.
124 As to the treatment of the shoulder conditions, Mr Miller recommended ongoing conservative treatment, although he did not exclude the possibility that the plaintiff could benefit from surgery to both shoulders. As far as I can tell, in June 2006 Mr Patrick had considered surgery to the left shoulder an option. However, the improvement noted in examinations conducted in May 2011 and August 2012 suggest that by December 2012, he no longer thought surgery was warranted.
125 As to the plaintiff’s physical capacity for work, in February 2014 Mr Miller said his opinion was unchanged. As I understood his evidence, each shoulder condition contributed to an incapacity to return to pre-injury employment (presumably process work and general cleaning duties) on a full-time basis. In the event the plaintiff returned to pre-injury employment, Mr Miller estimated the plaintiff could work a maximum of 2 hours per day, 5 days per week.[106] Accordingly, if there were a retained capacity to perform his pre-injury occupation, these potential hours of work would likely still be productive of a permanent financial loss of 40% or more.
[106]PCB 102
126 Mr Miller envisaged permanent restrictions on repetitive arm actions, using the arms in the above shoulder position or lifting of weights of more than 5 kgs.[107] Relevantly, Mr Miller, who had the advantage of reading the Evidex report and the Nabenet reports, also considered, the occupations listed in the final Nabenet report. Employment as a Process Worker, Food Process Worker or as a Process Worker in pharmaceuticals was unsuitable, he said, because these occupations all required repetitive arm actions. Whereas, employment as a Petrol Station Attendant or Console Operator would not, he said, constitute suitable employment primarily due to the plaintiff’s poor English language skills.[108] Clearly, the medical specialist’s evidence in this regard favoured the occupational therapist’s conclusions in the earlier Evidex report.
[107]PCB 93
[108]PCB 102
Compensable shoulder injuries
127 In this case there has been a lengthy history of investigation and treatment of symptoms affecting both shoulders, not to mention objective evidence of ongoing underlying pathology, which might account for the complaints of deterioration in the plaintiff’s condition. As a result, I have generally preferred the evidence of the treating rheumatologist, Mr Patrick, the general practitioners and Mr Miller both as to:
· the sufficiency of the link between each shoulder condition (as at the date of hearing, tears in the right shoulder supraspinatus tendon and glenoid labrum and tendonopathy in the left shoulder supraspinatus tendon) and the earlier bicep injury and right shoulder injury; and
· the likely continuing contribution by these conditions to any physical incapacity for work or for rehabilitation or retraining.
128 For present purposes, I was satisfied that, at the date of hearing, there was unresolved work-related right shoulder and left shoulder pathology. The function of the ruptured bicep tendon was not susceptible to repair. However, the right shoulder might be improved by surgical repair of tears in the supraspinatus tendon and the glenoid labrum but not to the extent that the plaintiff was likely to be fit for his normal pre-injury duties.
129 The most recent imaging of the left shoulder and the treating doctor’s evidence, the latter emphasising the problems affecting the right shoulder, suggest that the condition of the left shoulder also remains problematic but less so than the right shoulder.
130 This right hand dominant manual worker has gone from performing normal full-time duties to light duties and, in the years since being made redundant, the condition of his right shoulder has deteriorated such that I was satisfied that work-related impairment of the right shoulder was probably permanent. I was also satisfied that no suitable employment existed in which the plaintiff could earn 60% or more of the agreed without injury earnings figure.
131 In these circumstances, it was unnecessary for me to also consider the pain and suffering consequence of the right shoulder injury when granting leave.
132 The left shoulder injury was a different matter. Firstly, I found the evidence of particularly treating doctors equivocal as to the permanence of this condition and the extent of its impact on the plaintiff’s physical capacity to return to work. Importantly, due to the timing of the Evidex report, this medical opinion was not available for consideration in the separate assessment of the left shoulder injury.
133 If I am wrong and the condition of the left shoulder is permanent for the purposes of the Act, as mentioned the focus of the most recent medical evidence was on the consequences of impairment of the right shoulder, such that the plaintiff has not satisfied me that impairment of the left shoulder of itself resulted in a loss of earning capacity of 40% or more of the agreed without injury earnings figure.
134 Finally, whilst I accepted that the condition of the left shoulder likely gave rise to a pain and suffering consequence, the extent of this was not sufficiently clear such that by applying the test under the Act, I was in a position to grant leave on the basis of the pain and suffering consequence alone.
The psychiatric injury
135 In his final affidavit the plaintiff relevantly deposed as follows:[109]
“I believe that the physical injuries which I suffered have led to the development of a psychiatric condition. I became increasingly depressed by reason of the pain that I was suffering and also develop some psychotic symptoms in which I was hearing the voices. I have been hospitalised in a psychiatric facility at Casey Hospital on a number of occasions. Initially I was hospitalised from 5 February 2013 to 25 February 2013 and then again from 10 and March 2013 to 21 March 2013. I in more recent times was again an inpatient at Casey Hospital for about two weeks during August 2013. At that time I was again hearing voices and I have been diagnosed as suffering severe depression with psychotic symptoms. In addition to my hospital admissions and the prescription of the medications identified I have also had a CATT team (sic) available to monitor me on and off since the development of the psychiatric condition. Someone comes to my house once a week. The doctor who comes to my house has prescribed me Diazepam, Olanzapine, Amitriptyline and Zopiclone.”
[109]PCB 14-15
136 As mentioned, despite earlier exposure to trauma the plaintiff presented to doctors with no pre-existing history of mental health issues. On arriving in Australia, he obtained processing general cleaning work with the employer and even after the bicep injury and the shoulder conditions emerged, the plaintiff maintained full-time employment, albeit with restrictions and on light duties.
137 Ascertaining from when the plaintiff first presented for treatment of depression and mental health issues was not a straightforward task. Those parts of his wife’s affidavit evidence already discussed did not assist in this regard. Her evidence, nonetheless, helped establish that the plaintiff’s behaviour was indicative of significant mental health issues.
138 As mentioned, the very detailed summary of the plaintiff’s materials and history compiled by Dr Epstein indicated the plaintiff probably first understood he was having auditory hallucinations from at least April or May 2012. These were followed by a significant worsening of depression and distress during 2012.[110]
[110]PCB 107
139 I have already noted that, Dari speaking general practitioner, Dr Hamimi commenced treating the plaintiff at the Dandenong West Medical Centre from 7 April 2011. Without identifying the time from when symptoms of depression were first noted by the plaintiff, Dr Hamimi’s report records that he diagnosed depression in 2012.[111] This accorded with the extract tendered from his clinical records,[112] which showed that, on 26 June 2012 the plaintiff was counselled for depression and, among other medications, the antidepressant, Cymbalta was prescribed as well as the antidepressant, Endep.
[111]PCB 49 (e)
[112]Exhibit P2
140 Notably, when the plaintiff presented for treatment of the right arm condition on 18 July 2012, in addition to prescribing the anti-inflammatory medication, Naprosyn, Dr Hamimi increased the dosage of Endep to one 25 mg tablet nightly (and then to one 50 mg tablet nightly).
141 The argument with the plaintiff’s son which led to the sprained right ankle as described earlier occurred on 23 August 2012.
142 On 8 December 2012 Dr Hamimi prescribed medications, including the antidepressant, Cymbalta.[113] During 2013, on various occasions the plaintiff was admitted to the Casey Hospital psychiatric unit for treatment of his psychiatric symptoms. The first admission was between 1 January and 8 January 2013 when, according to Dr Epstein’s summary, the plaintiff was treated with antidepressant and antipsychotic medication. [114]
[113]PCB 119
[114]PCB 107 and 119
143 It appears that the plaintiff remained symptomatic and, as the clinical records also demonstrated,[115] on 10 January 2013 the plaintiff told Dr Hamimi that he had not slept for several nights and he was talking and crying a lot. He was prescribed Valium and the antipsychotic medication, Quetiapine. On 24 January 2013 the plaintiff reported crying and laughing and talking, he was counselled and his antipsychotic medication changed to Olanzapine. The reason for contact was recorded as ”bipolar affective disorder”.[116]
[115]Exhibit P2
[116]PCB 119
144 As mentioned, Dr White recorded that on 14 February 2013, the plaintiff presented at his clinic in an extremely distressed state. The CAT team attended the plaintiff’s home. He was prescribed medication for depression and anxiety[117] and, on 15 February 2013, the plaintiff was admitted to the Casey Hospital. A severe Major Depressive Disorder was diagnosed. Relevantly, a discharge summary dated 25 February 2013 recorded a five year history of depression since the plaintiff’s shoulder injury (the plaintiff apparently incorrectly nominated 2007 as the date of injury).[118]
[117]PCB 48-49
[118]PCB 119
145 Dr Epstein’s report and the extracts from the Southern Health Mental Health Services records tendered by the defendant[119] all indicated that the plaintiff’s presentation for treatment in February 2013 was likely preceded by an assault in which a daughter’s arm was broken by her father, evidently due to a concern that she had opened a Facebook account. The police and DHS were said to have become involved. At hearing the plaintiff gave contradictory and at times confusing accounts about this event and a further allegation of conflict with a son. He steadfastly denied having assaulted or harmed his daughter. Through his evidence he nevertheless acknowledged that an incident had occurred at home during Ramadan, in which his daughter was injured, with later involvement of police and attendance at Court.[120]
[119]DCB 166 and 172
[120]TN 70-77
146 Whilst at hearing the plaintiff’s account of the incident with his daughter appeared to contradict the Southern Health record, in assessing the plaintiff’s evidence in this regard, I also made allowance for the timing of this incident and the earlier conflict involving the plaintiff’s son, which probably occurred after the onset of symptoms of depression and symptoms of psychosis.
147 Between 10 March and 21 March 2013, the plaintiff was admitted to hospital as a sectioned patient and treated for a hypomanic episode. The latter was apparently triggered by a change in his antidepressant medication.
148 During March 2013 and April 2013, the CAT team continued to provide home-based treatment. According to the report dated 24 February 2014 and prepared by the consultant psychiatrist to the Casey Community Mental Health Team, Dr Tampiyappa, between 23 April 2013 and 20 May 2013, the mental health team cared for the plaintiff, who had not engaged well.[121]
[121]PCB 61a
149 The plaintiff was diagnosed with a Major Depressive Disorder. When last reviewed on 28 May 2013, he was taking the antidepressant, Amitriptyline and apparently was very optimistic about the outcome of an impending visit to Afghanistan to seek treatment from Afghani doctors for headaches, noise and pain.[122] As we now know any treatment sought in Afghanistan did not improve or resolve the plaintiff’s psychiatric condition.
[122]PCB 61a
150 It appears that the plaintiff returned from Afghanistan in late June 2013, at which time he sought treatment for an ankle injury suffered in Afghanistan. As mentioned, Dr Hamimi’s records also showed that he treated the plaintiff on 3 September 2013 for right supraspinatus tendinitis and schizophrenia, when the plaintiff’s dosage of Olanzapine was increased. There were further references in the general practitioner’s materials to ongoing treatment for schizophrenia.[123]
[123]PCB 49 (n) and Dr Epstein's final report dated 24 February 2014, PCB 123-124
151 Under cross-examination, the plaintiff gave evidence to the following effect: [124]
· he still had problems with auditory and psychiatric symptoms. For instance, the plaintiff said he sat in the park at night (“The day before yesterday during the night I was sitting there but I’m scared if I sit there again my kids will tell the nurse and they will put me in hospital”);
· since the injury (that is the physical injury to the plaintiff’s shoulders) he felt “really hopeless towards life and feel like I don’t have those arms any more, I don’t enjoy any minute of life. “ In re-examination the plaintiff emphasised that this was how he felt “every minute and every hour”[125] and that he experienced a sense of hopelessness because he could no longer: “help any member of my family or friends any more, it’s a part of our tradition and custom that you help friends, I feel I come not alive any more. It’s made me crazy”.[126]
[124]TN 60-63
[125]TN 92
[126]TN 92
152 As mentioned, Dr Epstein examined the plaintiff and reported in December 2013.[127] The salient features of this report are summarised in the following points:
[127]PCB 104-112
· as to his physical state, among other things, the plaintiff reported ongoing bilateral shoulder pain, which caused difficulty in sleeping on either side and further injections into both shoulders, the right in June 2013 and the left in October 2013;
· as to his mental state, the plaintiff reported insomnia, unhappiness and a range of psychiatric symptoms: “he is rarely happy and feels flat most of the time. He feels bored, restless, frustrated, lonely, isolated, irritable, exhaustion, agitated, unmotivated and has problems with memory and concentration. He is less sociable and less interested in his appearance. He has no libido and no sexual activity.… He said he continues to have voices in his head that call out his name but they are not as loud. He said that after he hears voices he has very negative thoughts about himself.… He said he sometimes finds himself talking to himself out aloud in this upsets his wife (sic). He said that every day some lousy becomes much more depressed lasting for hours to days and during this time she feels hopeless, helpless, useless and worthless and is sometimes tearful.…”;[128]
[128]PCB 108-109
· as to his medication regime, the plaintiff reported this was managed by his general practitioner and involved daily doses of antipsychotic, antidepressant, anti-inflammatory, anxiety reducing, sedative, and pain killing medication (Olanzapine twice daily and at night, Cymbalta daily, Endep twice daily, Valium twice daily, Imovane (a sleeping sedation at night) and six Panadeine Forte tablets and two Mobic tablets daily);
· the plaintiff presented to Dr Epstein as depressed and anxious, with limited insight and disturbed judgement;
· Dr Epstein linked the significant changes in the plaintiff’s behaviour to the initial work-related bicep injury: “ Khalilurrahman Khairi has developed a Major Depressive Disorder with psychotic symptoms including auditory hallucinations. His Major Depressive Disorder appears to have occurred in the context of his work injury with chronic pain, discomfort and disability that have persisted despite a variety of treatments and he has been unable to return to work and unable to carefully his family (sic)”;[129]
[129]PCB 111
· the plaintiff’s psychiatric condition was then stable, although in Dr Epstein’s opinion the prognosis for improvement was poor;
· whilst the plaintiff’s physical condition contributed to his incapacity for work this was, according to Dr Epstein primarily due to the plaintiff’s mental illness. In short, absent marked improvement in his psychiatric functioning, he considered the plaintiff unfit for all work.
153 After reading additional materials, some of which I have already mentioned in passing, on 24 February 2014 Dr Epstein relevantly advised as follows:[130]
“There is some question as to whether or not he has a chronic schizophrenic illness or a Major Depressive Disorder with psychotic symptoms. The impression I gained when I saw him in December 2013 was that depression was a major component of his presentation but I was not aware of the degree of his paranoid thinking. Probably a more appropriate diagnosis is Schizoaffective Disorder combining with this schizophrenic element and the affective element. Certainly it continues to be my view that his depressive element and resultant psychosis occurred in the context of his work injury.”
[130]PCB 124
154 Psychiatrist, Dr Entwisle examined the plaintiff at the request of the defendant’s solicitors on 12 February 2014.[131] After being provided with additional materials on 25 February 2014 Dr Entwisle provided a supplementary report.[132]
[131]DCB 37 (a)
[132]DCB 37 (g)
155 Notably, Dr Entwisle diagnosed major depressive illness with psychotic features or a delusional disorder occurring in the context of the plaintiff’s injury (“Mr Khairi states that his psychiatric condition flows secondary from his injury and he is concerned about his health. This he says occurs on the basis of long-standing treatment, failure to return to previous health, lack of employment and a general deterioration of his mental health state in those circumstances. Mr Khairi described a traumatic past history. He has not received treatment for that. Whether or not his traumatic past history contributes to his injury and his current psychiatric condition is not entirely clear.”[133]
[133]DCB 37 (f)
156 Dr Entwisle considered the plaintiff psychiatrically unfit for employment due to severe psychiatric illness and clearly indicated that this would remain the case for the foreseeable future.
157 However, having received additional materials from the defendant’s solicitors, which included some information from the Casey Hospital and medical records from Dr White’s clinic, Dandenong City Clinic, Dr Entwistle queried the work-relatedness of the plaintiff’s current psychiatric condition.
158 In effect, absent evidence of treatment from a general practitioner or specialist for symptoms of distress or depression before 2013, Dr Entwisle concluded the plaintiff’s psychiatric condition was probably related to his psychosocial and pre-existing history of trauma.[134] Clearly, Dr Entwisle did not have the advantage of considering particularly, Dr Hamimi’s records, the extensive information summarised at length by Dr Epstein, nor much of the evidence before the Court.
[134]DCB 37 (h) and (i)
Compensable mental disorder
159 In my view, based on all of the evidence the work-related injury or injuries and resultant chronic pain were, as Dr Epstein opined, a cause of the plaintiff’s depressive illness, the symptoms of which were treated from at least mid-2012. In other words, there was a sufficient causal link between the earlier compensable bicep injury and the depressive condition.[135] Accordingly, the injury to the plaintiff’s psyche is compensable. On the evidence, the injury is probable permanent and, collectively the consequences, the nature and severity of the symptoms, which include persistent auditory symptoms and the need for ongoing treatment and medication probably justify the description – “severe”.
[135]See Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227, [40]
160 Allowing for the psychiatric evidence, the plaintiff is probably totally incapacitated for employment for the foreseeable future and entitled to leave to bring a proceeding for the loss of earning capacity consequence of the injury to his psyche.
The orders
161 In summary, as to the application made under paragraph (c) of the definition:
a) I find that the plaintiff has a loss of earning capacity of 40% or more and this is likely to be permanent;
b) I am satisfied that for the foreseeable future the plaintiff is mentally unfit to undergo occupational rehabilitation or retraining and that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment;
c) the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible mental disorders the plaintiff’s loss of earning capacity is fairly described as being more than serious to the extent of being severe.
162 As to the application made under paragraph (a) of the definition in respect to the right shoulder injury:
a) I find the plaintiff has a loss of earning capacity of 40% or more and that he will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more;
b) I was satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment;
c) the plaintiff had satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, the loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable.
163 As to the application made under paragraph (a) of the definition respect to the left shoulder injury, the plaintiff failed to discharge the burden of proof.
164 I propose to make orders granting leave to the plaintiff to commence proceedings against the defendant in respect to pain and suffering and pecuniary loss damages for work-related injury to his right shoulder only and to his psyche.
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