Mauro v Victorian WorkCover Authority
[2016] VCC 676
•26 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05751
| ANTONIO MAURO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 February 2016 | |
DATE OF JUDGMENT: | 26 May 2016 | |
CASE MAY BE CITED AS: | Mauro v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 676 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Application for leave to commence common law proceedings for both pain and suffering and economic loss damages, pursuant to s134AB Accident Compensation Act 1985. Application under the definition of serious injury paragraph (a) relating to right shoulder impairment and paragraph (c) relating to Adjustment Disorder with anxiety and depression.
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover damages for both pain and suffering and loss of earning capacity in relation to the physical injury to his right shoulder as well as the psychiatric/psychological injury the subject of this application.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr D Purcell | Maurice Blackburn Lawyers |
| For the Defendant | Ms S Manova | Russell Kennedy |
HER HONOUR:
1 The plaintiff, Antonio Mauro, applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings to recover damages. He alleges that in the course of, arising out of, or due to the nature of employment with the company Citic Australia Commodity Trading Pty Ltd (“Citic”) he has suffered an injury to his right arm/shoulder which has given rise to a permanent impairment which satisfies paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. He further alleges that he has suffered a severe mental or behavioural disturbance or disorder which satisfies paragraph (c) of the definition of serious injury in s134AB(37) of the Act. He contends that each of these injuries, on its own, has consequences by way of pain and suffering and, also, loss of earning capacity, which are serious.
The issues between the parties
2 On behalf of the defendant, Ms Manova defined the issues between the parties as follows:
“Both pain and suffering and economic loss is in issue, however, the focus of the defence really is economic loss. There are two particular jobs, your Honour, that the defendant says that the plaintiff can do, albeit on a reduced or part time basis.”[1]
[1]Transcript (“T”) 11
3 Ms Manova went on to identify the two jobs which the defendant contends would constitute suitable employment for the plaintiff, namely, that of a dispatch clerk or a stock clerk. The defendant contends that suitable employment in either of those positions, even on a part time basis, would result in the plaintiff earning more than 60 per cent of his without-injury earnings.
4 The defendant contends, also, that the plaintiff has not proven that his loss of earning capacity is permanent in relation to his claim under paragraph (c). It relies upon the opinion of Dr Ratnayake, consultant psychiatrist, who examined the plaintiff on behalf of the defendant. Dr Ratnayake expresses the view that the plaintiff’s symptoms are exacerbated by heavy, chronic alcohol abuse and, if that abuse were to cease, he would regain a capacity to return to suitable duties.[2]
[2]Report dated 5 August 2015 Defendant’s Court Book (“DCB”) 16
5 As far as the plaintiff’s right shoulder injury is concerned, the defendant conceded that there was an organic basis for his complaints, and there is no reasonable prospect of improvement such that he suffers a permanent impairment. The defendant conceded that the work-caused injury to the plaintiff’s shoulder had necessitated him undergoing two surgical procedures and that the termination of his employment in October 2012 was due his shoulder injury, as he was unable to return to his pre-injury duties. The defendant did not take issue with the fact that the plaintiff currently takes daily prescription medication for pain by way of four to five Endone tablets and about four Panadeine Forte tablets,[3] but suggested that the ingestion of that medication relates, not only to the shoulder injury, but, also, to other chronic pain problems of the plaintiff, namely, with his left hip/back and right knee and Ms Manova stated “I’m not instructed to formally concede pain and suffering”[4] in relation to the shoulder injury. She went on to submit that there were strong arguments against the plaintiff succeeding on economic loss, as the majority of medical evidence, even from the plaintiff’s treating doctors (apart from his general practitioner), indicates that he has retained a capacity to do suitable duties.
[3]T27
[4]T14
6 The defendant submitted that the Court should find that the plaintiff’s hip/back and knee issues would impair his work capacity, quite apart from his shoulder injury. It further submitted that the Court could not be satisfied as to the extent of the plaintiff’s pain and suffering as he exaggerated his symptoms and disabilities when giving evidence. Ms Manova stated:
“The reason that I make that submission is, primarily, the extraordinary presentation in court of Mr Mauro with his arm cradled in a makeshift sling, and his description of muscle wasting that he says he sees in the mirror in the face of all the medical histories.”[5]
[5]T78
Background
7 The plaintiff is presently aged 45 years, having been born on 4 September 1970. He left school at age 15, prior to completing Year 9, and obtained an apprenticeship as a maintenance fitter. He did not complete the apprenticeship because he found the majority of classwork difficult, as he had never been very good at reading and spelling.[6] After some three years or so, the plaintiff ceased the apprenticeship, and then worked in various manual jobs performing labouring or factory work with several employers until May 2007, when he commenced with Citic.
[6]T70
8 Citic imports and distributes tyres. The plaintiff’s role was that of a storeman and delivery driver. His work involved heavy and repetitive unloading and lifting of car and truck tyres, which often had to be stacked above head height. Part of his job involved unloading shipping containers, which required constant manual handling and, in the latter part of his employment, this was carried out alone, without co-workers or mechanical assistance.
9 In November 2010 the plaintiff felt pain in the shoulder of his right arm, which is his dominant arm. He reported it to management, but was required to keep working as it was busy leading up to Christmas. He rested over the Christmas break but, on 20 January 2011, attended his general practitioner, Dr Ng. Dr Ng considered that the plaintiff had a problem with his acromioclavicular joint by way of a degenerative condition and capsulitis. A plain x‑ray of the right shoulder on 20 January 2011 was reported with a conclusion “degenerative AC capsulitis.”[7]
[7]Plaintiff’s Court Book (“PCB”) 92 (tendered by the defendant).
10 Dr Ng referred the plaintiff to an orthopaedic surgeon, Mr Owen, who saw the plaintiff in February 2011. His examination “showed a full range of movement of the shoulder, but a strange nasty ‘clunk’ on doing external rotation in the shoulder in neutral adduction.”[8] Mr Owen thought that there was probably a labral tear, but an MRI scan on 21 February 2011 did not identify one. It showed an intact rotator cuff, albeit that a conclusion was reported “AC joint arthropathy-capsulosynovitis.”[9]
[8]Report of Mr Owen 12 December 2014 at PCB 23
[9]PCB 93 (tendered by the defendant)
11 Nerve conduction studies in March 2011 were also reported as normal but, as the plaintiff had persistent symptoms, Mr Owen performed an arthroscopathy on 12 May 2011. A labral tear was not detected on arthroscopathy but Mr Owen found “signs of partial thickness damage to the supraspinatus tendon and signs of impingement”. He proceeded to perform “a subacromial decompression through lateral and posterior portals and debrided the relevant area of the rotator cuff.”[10]
[10]Operation report of Mr Owen 12 May 2011 PCB 26
12 Post-operatively, the plaintiff had persisting symptoms of pain, clunking and locking of the shoulder. On 3 October 2011, a repeat MRI scan was reported as follows:
“A very small defect involves the posteriolateral aspect of the superior humeral head measuring 0.5 centimetres, containing joint fluid/intra articular gadolinium which tracks into the humeral head. This is a new finding compared to the prior study of February 2011 and could be secondary to impingement or represent a small Hill-Sachs deformity if there is a prior history of anterio inferior dislocation. No labral tear is identified.”
The report also detected and listed in its conclusion that there was new supraspinatus tendinopathy and bursal surface fraying, new mild subacromial bursal fluid distension which may represent bursitis in the appropriate clinical context and, also an AC joint arthropathy and capsulosynovitis which had been present previously.[11]
[11]PCB 89-90 (tendered by the defendant)
13 Mr Owen injected local anaesthetic and steroid into the plaintiff’s acromioclavicular joint, but the plaintiff reported that this made his symptoms worse. He felt that the plaintiff had a very poor prognosis given the inability to find a mechanical cause for his mechanical symptoms and his reaction to the injection, and referred him to Mr Dallalana, orthopaedic surgeon, for a second opinion. Mr Owen considered that it would be impossible for the plaintiff to return to his pre-injury duties and advised a vocational change to work that did not involve using his shoulder at or above horizontal level.
14 In February 2012, the plaintiff consulted Mr Dallalana, who made a provisional diagnosis of a labral tear or a problem with an unstable biceps tendon. He noted that the plaintiff’s main concern was of a clunking sensation and pain in the front of the shoulder, for which a cause had not been found at the time of his surgery performed by Mr Owen in May 2011. Mr Dallalana performed a surgical procedure on 2 February 2012. He found a relatively undisplaced Type II SLAP lesion. The remainder of the labrum and chondral surfaces were normal and there were no intra-articular changes to the rotator cuff, but there was some minor bursal sided tendinosis of the supraspinatus. He noted that there was substantial arthropathy of the AC joint with a very prominent and inferiorly projecting distal clavicle and, also, that the previously performed decompression remained patent, with regrowth of local scar tissue and relatively abundant bursitis, predominantly of the scarred area.[12]
[12]Operation report of Mr Dallalana dated 2 February 2012, PCB 54
15 Mr Dallalana performed his surgical procedure via a posterior portal. The biceps was tenotomised in preparation for later tenodesis and the superior labrum debrided. Subacromial side scar tissue/bursitis was formally resected and the upper surface of the rotator cuff was confirmed not to be torn (minor tendinosis). He noted the particularly prominent inferior clavicle was abutting the upper rotator cuff and this was pared back substantially and formal resection of the distal clavicle was also performed. Some repeat bony decompression was also performed to smooth the acromion in line with the resected clavicle. Mr Dallalana retrieved the biceps tendon through a 3 centimetre anterior incision and split of the deltoid and tenodesis was performed into the upper part of the bicipital groove with a single 7 x 23 millimetres biotenodesis screw (Arthrex). He made particular note of the prominent medial lip of the bicipital groove.[13]
[13]Operation report at PCB 55
16 By 31 October 2012, Mr Dallalana noted that the plaintiff was presenting with ongoing symptoms of substantial pain, tenderness and clicking in the superomedial border of the scapular. He considered that these symptoms were consistent with scapulothoracic crepitus in the posterior region of the scapula, particularly with elevated positions of the arm. Although the shoulder itself was improved and the plaintiff had a good range of movement of the glenohumeral joint, with no specific points of discomfort, he considered that the plaintiff’s new condition should be treated with corticosteroid injections into the inflamed area and, also, physiotherapy. He had noted back in June 2012 that the plaintiff’s mood was very low. In October he observed that the plaintiff was being actively treated by a psychologist and he thought the plaintiff’s overall mood was a little better than previously. It would appear that Mr Dallalana has not seen the plaintiff since October 2012.
17 In mid-2012, the plaintiff’s depression associated with his shoulder injury had become severe and, apparently, he overdosed on painkillers, resulting in a period of hospitalisation and involvement of the Community Assessment Team (“CAT”). Following this episode, his general practitioner had referred him for psychological counselling to a psychologist, Ms Cook, in August 2012. On testing, Ms Cook found that the plaintiff showed scores for depression and anxiety which were extremely severe. She assessed him as suffering from an Adjustment Disorder, with mixed anxiety and depressed mood, which had become chronic. She considered that this had arisen in response to the stressor of his injury to his shoulder and that he was suffering marked distress and significant impairment of social/occupational functioning. He was treated with cognitive behavioural therapy and his psychological condition showed some slow but steady improvement. However, his mood deteriorated significantly when life events increased his stress levels, and she prognosticated that he would require ongoing psychological support, particularly since his pain and poor future outlook had brought him to the point of contemplating suicide on more than one occasion. She noted at the date of her report, 25 September 2013, that the plaintiff was taking Pristiq, Endone, Panadeine Forte, Stilnox, and Voltaren and thought it was difficult to predict how long his physical and psychological recovery would take and it may be that he needed to undertake a different career path once his psychological issues stabilise.[14] Ms Cook also noted that the plaintiff had undergone five cortisone injections, in addition to his two surgical procedures and physiotherapy and osteopathic treatment. She continued to treat the plaintiff’s psychological issues until she left Australia in August 2014. Since then, the plaintiff has been seen by other psychologists, initially, Ms Garfield and presently, Dr Ken Davidson.
[14]PCB 33-46
18 In July 2012, the plaintiff had returned to work on alternative duties. Ms Manova, on behalf of the defendant, conceded that there was no particular job with a particular title in existence at the defendant’s workplace into which the plaintiff had been “slotted”. He was given a range of light duties.[15] The plaintiff in his affidavit sworn on 27 June 2014 (“the plaintiff’s first affidavit”) stated that he was doing very basic filing in a “made-up job” and much of the time there was nothing for him to do and that he found it soul-destroying. On one occasion, he was asked to enter some data into a computer and made a mistake, as he had no computer training, and was told not to touch the computer again.[16] The plaintiff was working on two days each week and, then, on 8 October 2012, he received a letter from his employer advising him that his employment was to be terminated because he was unable to do his pre-injury work. He has not worked since that time.
[15]T137
[16]Oral evidence of the plaintiff, T56, 60
19 It would appear that the plaintiff’s anxiety and depression increased after his employment was terminated. He was continuing to see a psychologist, but his abuse of alcohol, which had begun after he injured his shoulder, continued to be a problem. His general practitioner, Dr Ng, referred him to a psychiatrist, Associate Professor Wong, who began treating the plaintiff in April 2013 and continues to see him, up to the present time and ongoing, on a fortnightly basis. He diagnosed an Adjustment Disorder with mixed anxiety and depressed mood and kept the plaintiff on 100 mg of Pristiq but, also, commenced him on a second antidepressant, Avanza, because he was having difficulty sleeping. He stopped his prescription of Stilnox and, instead, prescribed him another sleep medication, Imovane, 7.5 mg. Associate Professor Wong gradually increased the plaintiff’s dosage of Avanza to 90 mg per day, but his persistent pain continued to keep him in an anxious and depressed stated with shallow and broken sleep.
20 In his most recent report, dated 17 December 2015, Associate Professor Wong noted that the plaintiff’s medication had been repeatedly reviewed and adjusted and, at that time, he was prescribing the antidepressant, Avanza, 45 mg x 2 per night, the anti-anxiety medication, Valium 5 mg, up to four times a day, and the sleep medication, Imovane, 7.5 mg per night. He noted that the plaintiff’s persistent pain perpetuated his anxiety and depression and sleep disturbance such that he struggles with the activities of daily living and he was socially withdrawn and isolated. He considered that his Adjustment Disorder was a direct consequence of his work-related shoulder injury and noted his limited progress to date despite active and appropriate treatment. Thus, he expressed the opinion that the plaintiff is currently psychiatrically unfit to return to his pre-injury level of work or any alternative employment compatible with his education, training and experience and would remain so in the foreseeable future.
21 The plaintiff’s current treating psychologist, Dr Davidson, provided a report dated 15 December 2015. He noted that the plaintiff still meets the diagnostic criteria for an Adjustment Disorder with mixed anxiety and depressed mood, which he described as chronic and severe. He noted on testing that the plaintiff suffers from stress levels in the severe range and anxiety and depression levels in the extremely severe range. He recorded a history of the plaintiff’s loss of friends, increased use of alcohol, recurring episodes of suicidal ideation (which had resulted in intentional overdose of medication on two occasions), poor memory, anger, feelings of worthlessness, social isolation and restrictions in his ability to complete his activities of daily living due to the restricted movement in his injured dominant right arm, such that he was reliant upon his partner’s help to complete many household tasks. He noted a history of the pain being particularly intense resulting in fatigue and migraines and the plaintiff’s need to take short breaks while completing tasks. He considered that the plaintiff currently had a limited capacity to work, although he appeared to continue to have a strong motivation to the return to the workforce.
22 Dr Davidson considered that by reason of the plaintiff’s current physical injuries, that it was unlikely that he could return to his former work. He stated that the plaintiff would require extensive support if he was to return to work. This would probably involve daily long term assistance, and it may be difficult for him to find a workplace that could offer him the level of support required. He noted that the plaintiff’s scores on assessment in several areas showed that he was functioning well below average. Also, he achieved only an average score for numeracy and a below average score technology for use. He also noted that the plaintiff often struggles with problem solving and communication and had limited support from others and trouble trusting others.[17]
[17]PCB 55I
23 The plaintiff’s evidence is that he does get some symptoms of low back and left hip/leg pain which he attributes to an earlier work incident when he jumped down from the back of a truck in 2009. This back/hip pain had flared up 2 years ago and required some osteopathic treatment, but that treatment ceased about 1 ½ years ago.[18] In addition, he had an unrelated right knee problem, which dates back to the 1990s, and has given him “some grief” from time-to-time, but is not a real problem, although it had flared up in recent times and he was waiting to see a specialist at Northern Hospital to see whether there was anything that might assist his knee pain. However, he was adamant that his major problem is his right shoulder injury. He conceded that his back pain had caused him not to be able to walk at times but it was never of the severity of his shoulder pain, which caused him to spend the day in bed.[19] He continues to suffer from pain levels which necessitate him continuing to take four to five tablets of Endone each day, as well as about four tablets of Panadeine Forte per day. In addition, he takes Stilnox to help him sleep and two antidepressants, Pristiq and Mirtazapine. He finds that Endone gives him side-effects which make him “drowsy, tired and a bit woozy”, so he often just goes to lie down and wants to be left alone. In addition, he continues to receive periodic injections of cortisone into his right shoulder. He estimates that he has had six or seven such injections, of which probably four have been administered since his second surgical procedure was performed in 2012. He stated that he is still very depressed and, at times, cannot leave his bedroom and does not want to know anything or anyone and sometimes cries himself to sleep.[20] He continues to see his psychologist regularly and his psychiatrist fortnightly, as well as having his shoulder monitored by his general practitioner, Dr Ng.
[18]T41
[19]T40
[20]T27-28
24 The plaintiff believes that he would be unable to work as he is in constant pain in his shoulder and his restriction of movement is such that he cannot use it repetitively or for lifting or, at all, above shoulder height. He left school before completing Year 9 and believes that he would have difficulty retraining as he has only ever done manual jobs. He does not own a computer and is not computer-literate. He does not even know how to “Google” information on a computer, and relies upon his 11 year old son to access any information that he may require from a computer. He has access to the two children of his former marriage for the whole week every second week and relies upon his girlfriend quite regularly to drive the children to school and to do their washing and much of the cooking. He does a few basic things, household chores and gardening but uses his left hand[21] and is dependent upon his girlfriend who assists with many of his daily chores.[22]
[21]T38-39
[22]T33-36
25 The plaintiff acknowledged that his depression was such that he had become increasingly dependent on alcohol, upon which he was not dependent before his shoulder injury. As recently as June last year, he was drinking a bottle of red wine and up to four stubbies of beer each night. With assistance, has managed to reduce his alcohol intake, but still drinks four to six stubbies every day. He commences drinking at about 11 o’clock each morning and continues throughout the course of the day.[23]
[23]T51-52
26 The plaintiff stated that he has no office skills and, even if he could get an office job, he believes that his shoulder pain and the impact of his medication, which causes him to feel drowsy and to have trouble concentrating, would make it difficult for him to turn up regularly and perform at work.
The issue of pain and suffering
27 I must say that I find this an overwhelming case in favour of the plaintiff on the issue of whether he has suffered serious pain and suffering consequences in relation to each of his injuries; that is, the injury to the right shoulder of his dominant arm, and the psychiatric injury, which I am satisfied is a direct consequence of the physical injury, but has become a serious injury in its own right. Indeed, it was plain from the outset that, although the defendant did not concede that the plaintiff had suffered a serious injury in relation to either the physical or psychiatric injury, it focused upon contesting that the plaintiff had suffered loss of earning capacity consequences of either injury which were serious.
28 In final submissions, Ms Manova for the defendant did not submit that the plaintiff had been unable to disentangle the physical injury from the psychiatric injury and, therefore, should fail. The main argument presented in relation to whether there were serious pain and suffering consequences, either from the physical or psychiatric injury, was a credit attack upon the plaintiff by reason of what Ms Manova described as his “extraordinary presentation in court with his arm cradled in a makeshift sling, and his description of muscle wasting that he says he sees in the mirror”.[24] She pointed to the absence of any mention of the plaintiff wearing a sling or muscle wasting in any of the medical reports. She submitted that the Court should, therefore, be sceptical about the plaintiff’s claim concerning the nature and extent of his pain and suffering.
[24]T78
29 I note that this is a case in which the defendant has admitted having undertaken video surveillance of the plaintiff. No such surveillance was shown in the course of the hearing, or tendered. In these circumstances, I infer that such material would not have advanced the defendant’s case and I am more readily able to accept the plaintiff’s version of the nature and extent of his injury and symptoms. Having said that, I do recognise that the lack of any detail in this admission concerning the amount of surveillance, and upon what date or dates it was obtained, mean that such inference must carry limited weight in determining this application.
30 I did not find the plaintiff to be a witness who embellished his symptoms. Nor do any doctors mention that they found him to have done so. I found him to be an honest witness who acknowledged under cross-examination that he had some ongoing issues with back/hip pain which prevented involvement in sports or hobbies (unspecified)[25] albeit that he had not required osteopathic treatment for that in the last 1 ½ years. He also frankly admitted that he had had a flare-up of knee pain and locking or giving way in recent times and had gone to the Northern Hospital to have it looked at. He stated that “it’s giving me a bit of grief but no great deal”.[26] It was noteworthy that in final submissions Ms Manova did not take the court to any medical opinion suggesting that either the plaintiff’s back or knee was a problem in any way approaching the magnitude of his right shoulder. His treating general practitioner Dr Ng does not mention the plaintiff’s back or knee in his reports and his treating psychiatrist, Associate Professor Wang simply mentions his 2009 incident where he injured his hip and knee after falling off a truck and managed to return to work.[27]
[25]T39
[26]T43
[27]PCB 31
31 The plaintiff is a person of limited education, who has only ever worked in manual occupations requiring limited skills. There is no dispute that he has suffered an organic injury to his dominant upper limb, namely, damage to his rotator cuff, which has been variously described by doctors as an injury to his supraspinatus tendon, with tendinopathy, an undisplaced Type II SLAP lesion, tendinosis, scapulothoracic crepitus, acromioclavicular joint arthropathy and subacromial bursitis. This has required two surgical procedures, which were undertaken on 12 May 2011 and 2 February 2012, respectively. He has also had six or seven cortisone injections into his shoulder. The preponderance of medical evidence does not contain any serious division of opinion relating to the nature of the plaintiff’s shoulder injury, the treatment that it has necessitated, and the fact that he suffers ongoing pain in excess of five years after the injury, for which he requires powerful, analgesic medication on a daily basis. It is not to the point that such medication may coincidentally assist with some symptoms of lower back/left hip/leg pain or some right knee pain. The evidence is that the plaintiff has been prescribed such powerful analgesia in relation to his shoulder injury for many years now, and it is ongoing. He has also required medication to assist with his disturbed sleep because of pain and this, too, is ongoing.
32 The plaintiff was emphatic under cross-examination that the majority of his pain is in his shoulder, not his back. He stated that he was not receiving any physical treatment for his back or hip at the present time. He acknowledged he was having his right knee investigated, but stated that his ongoing physiotherapy was for his shoulder alone.[28] I find no reason not to accept the plaintiff’s evidence that it is his shoulder injury that has been his overwhelming problem and is causing him very disabling pain and distress. Whilst he may have some back/hip and knee pain there is very little evidence before me as to the nature of the injuries to those parts of his body[29] and no suggestion that he would be taking 5 Endone tablets and 4 Panadeine Forte tablets per day if it were not for his shoulder injury. I accept that the plaintiff relies heavily upon his girlfriend, to do things such as washing, making the children’s beds and preparing their lunch, and also driving them to school and accompanying the plaintiff to do shopping when the plaintiff is too drowsy to drive because of his medication. I am also satisfied that she helps him substantially with heavier home duties and that his contribution is confined, as he says, to small household tasks which he can perform with his left hand, such as washing a few glasses or dishes or wiping down the sink or bench, or doing some gardening activities with his left hand.[30]
[28]T40‒42
[29]There is a report dated 6 October 2009 from a general practitioner, Dr Chan, which notes that the 2009 injury was shown on MRI to consist of moderate hip effusion, bursitis and muscle odema, but no fracture and he was expected to return to his pre-injury duties. PCB 20-21
[30]T35‒39
33 The medical opinions support that the plaintiff has the restrictions on his ability to use his shoulder as he describes. I found Ms Manova’s attack on the plaintiff’s use of a “makeshift sling” a somewhat exaggerated submission. It is not a sling. The plaintiff’s evidence is, “it’s a little bag that I carry my wallet in”. In the witness box, the plaintiff had the strap of the bag over his uninjured shoulder running diagonally across the front of his body. He rested his right arm on the top of the bag in a manner which I did not find to be ostentatious. The plaintiff described that, if he has his arm hanging down for long periods, he gets pain in his right rotator cuff. He stated that his arm seems to pull down and cause pain in the right side of his neck and also tends to give him headaches. He stated that doctors had thought it was quite a good idea because he carries the bag all the time and “If I do feel the pain, I can just put my arm in it”. He stated, “I don’t hold it all the time, but the majority of the time”, and on further questioning said, “It could be seven days a week. It varies, because depending on how strong the pain is, and if I take my medication and I’m laying down, I don’t need to put my arm in a sling, because I’m sleeping”.[31] He stated that when he does use it, it was “pretty much the majority of the day”, and he described how he just rests his hand on the bag to support it because it takes the weight off the shoulder. In this regard, I note that Mr Battlay described that the plaintiff had a postural problem with this right shoulder, which he held lower than his left.[32] Also, Dr Sutcliffe, made mention of the altered contour of the plaintiff’s shoulder girdle and its decreased height.[33] It may be that these matters have caused the plaintiff to consider that he has suffered loss of muscle bulk or a “saggy chest” in circumstances where doctors have not noted muscle wasting. However, contrary to Ms Manova’s submission, I consider the plaintiff’s view as to whether he has muscle wasting or a “saggy chest” to be of little moment in the overall evidence of this case, and certainly no basis for finding that he is an untruthful or untrustworthy witness.
[31]T29‒30
[32]DCB 46
[33]PCB 56H-56I
34 The plaintiff emphatically denied in cross-examination that he was using his right arm in daily activities just as much as he was using his left arm. Indeed, I note that the defendants own medico-legal examiner, Dr Yong stated “There is no indication on the worker’s hands or other apparent signs that the worker is currently or has recently engaged in employment activities”.[34] Similarly, Mr Battlay stated “his hands were not calloused or dirt engrained to indicate activity other than he describes”.[35] There is no doubt, on the medical evidence, that the plaintiff has an organic basis for the pain and restrictions which he describes. He cannot use the arm above shoulder height, he cannot lift any weight of significance and the grip strength in his dominant hand is dramatically reduced compared to his left hand.[36] He suffers constant ongoing shoulder pain requiring strong medication which makes him drowsy, as well as associated neck pain and headaches. I have no hesitation in finding, on the totality of the evidence, that the pain and limitation of movement and ongoing treatment flowing from the permanent impairment to the plaintiff’s dominant right upper limb meet the test of serious injury. That is, that when judged by comparison with other cases in the range of possible impairments or loss of body function they may fairly be described as more than significant or marked and, at least, very considerable.
[34]DCB 29
[35]DCB 47
[36]Dr Sutcliffe’s report at PCB 56I
35 As far as the plaintiff’s psychiatric injury is concerned, there is ample support for the fact that it has arisen by reason of the plaintiff’s physical injury and has become a discrete injury in its own right, namely, an Adjustment Disorder with Anxiety and Depression or, alternatively, a Major Depressive Disorder. This became an increasingly evident problem as the plaintiff’s physical injury failed to improve. He overdosed on painkillers, necessitating involvement of a CAT Team and hospitalisation, and has suffered suicidal ideation on more than one occasion. His condition deteriorated to the point where he became dependent upon alcohol as a form of self-medication for his psychological and physical pain. This dependence upon alcohol was not a feature of his life prior to the physical injury and, notwithstanding that he has, with some determination, reduced his alcohol intake, he has not noticed any change in his mental state.[37] Indeed, his psychiatrist Dr Wang has increased the amount of anti-depressant medication which he prescribes and added the anti-anxiety medication Valium,[38] but still his symptoms remain. The plaintiff is still dependent upon alcohol. Alcoholism is an addiction which requires lifelong monitoring because, even once abstinence has been achieved, it is recognised that there is always a propensity to relapse into alcohol dependence. The plaintiff has not even achieved abstinence, but still starts drinking before midday each day and continues through the afternoon. In addition, he continues to require daily antidepressant medication, namely, Pristiq and Mirtazapine, as well as Valium and medication to help him sleep. I accept that the plaintiff’s psychiatric/psychological condition has caused him to become socially withdrawn and isolated.
[37]T74
[38]PCB 21C
36 As long ago as 25 September 2013, the plaintiff’s then treating psychologist, Ms Cook, noted that on testing, the plaintiff’s scores for depression and anxiety were both “extremely severe” and for stress, “severe”. She stated that, due to the interaction of physical and psychological issues, notwithstanding that the plaintiff was motivated to move on with his life, it was difficult to predict how long recovery would take. She thought that he would require extensive support and his psychiatric disorder was in a chronic phase. Since that time, it seems that the plaintiff resorted to increasing abuse of alcohol because of his distress concerning his physical injury. His current treating psychologist, Dr Davidson, in a report dated 15 December 2015, found that the plaintiff’s scores for depression, anxiety and stress, were the same as recorded by Ms Cook back in 2013, (that is, extremely severe for anxiety and depression and severe for stress) and that he continues to meet the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood (chronic, severe). He noted the interrelationship between the plaintiff’s physical injuries and limitations and his psychological condition and stated that, in order to successfully return to the workforce, extensive support would be required, and it will be difficult for him to find that level of support.
37 The plaintiff’s mental state had got to the point that by April 2013, his general practitioner, Dr Ng, referred him to a psychiatrist, Associate Professor Wong. He had already been seeing the psychologist, Ms Cook, since 16 August 2012. In his report dated 3 April 2013, Associate Professor Wong noted that the plaintiff had been abusing alcohol and he had an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which had a reciprocal relationship with his pain from his shoulder injury. He considered that the plaintiff was not psychiatrically fit to return to work at that stage. In a report dated 17 September 2015, Associate Professor Wong stated that he continued the plaintiff on the antidepressant, Pristiq, 100 milligrams, but added a second antidepressant, Avanza, for its sleep-promoting effect, and stopped his sleep medication, Stilnox and prescribed another sleep medication, Imovane, 7.5 milligrams, instead. He stated that his Adjustment Disorder was a direct consequence of his work-related injuries and that he required ongoing psychiatric treatment, including antidepressant and sleep medication and support from his psychologist. He considered that the plaintiff was unfit to return to his pre-injury level of work, or any alternative employment compatible with his education, and would remain so into the foreseeable future.
38 Associate Professor Wong has continued to see the plaintiff generally twice per month, and in a report dated 17 December 2015, noted that his psychiatric medications had been repeated, reviewed and adjusted. In addition to two Avanza (45 milligrams) per night and Imovane (7.5 milligrams) per night to assist sleep, he had added the anti-anxiety medication, Valium, 5 milligrams, up to four times per day. He noted that the plaintiff continued to be anxious and depressed, that his sleep continued to be shallow and broken, and that he struggled with his activities of daily living. He repeated his opinion that the plaintiff was unfit for his pre-injury work, or any alternative employment compatible with his education, training and experience, and would remain so into the foreseeable future.
39 As previously mentioned, the defendant relies upon the medico-legal opinion of Dr Ratnayake, who has seen the plaintiff on two occasions, namely 27 March 2013 and 5 August 2015 as support for its submission that the plaintiff cannot be said to have a permanent mental or behavioural disturbance because he is likely to improve if he can overcome his alcohol abuse problem. Essentially, Dr Ratnayake diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was related to his employment injury but worsened by his abuse of alcohol which, at the time of his assessment on 5 August 2015, consisted of up to two bottles of wine per day. His view was that, if the alcohol abuse was addressed, the plaintiff would be capable of returning to employment and that, at present, heavy alcohol abuse, loss of motivation, anxiety, panic attacks and difficulty with concentration act as barriers to returning to work.
40 I find Dr Ratnayake’s assessment of the plaintiff’s condition somewhat shallow, in that he does not seem to have appreciated the depth of depression and anxiety from which the plaintiff suffered prior to embarking on alcohol abuse. Nor does he seem to have taken into account the impact of the plaintiff’s regime of medication, which makes him drowsy, or the significant suicidal ideation from which he has suffered over many years. In the context of a man who has been having psychological therapy and psychiatric treatment for several years, along with increasing amounts of antidepressants, the addition of the anti-anxiety agent, Valium, as well as taking sleeping medication over many years, Dr Ratnayake opines that the cessation of alcohol abuse would result in the plaintiff regaining a capacity to return to suitable duties. This is an assertion by Dr Ratnayake without any supportive reasoning or explanation to enable the court to evaluate the validity of his opinion. It is an example of a “bare ipse dixit” which will normally carry little weight as a court cannot be expected to act upon an opinion the basis of which is unexplained.[39] Dr Ratnayake does not analyse the fact that the plaintiff’s Adjustment Disorder with Depressed Mood and Anxiety is, in the first instance, due to his ongoing pain and that there is no suggestion that there is any cure for such pain, or that any treatment will ameliorate it. Given that this pain is acknowledged by Dr Ratnayake to be related to his Adjustment Disorder with depression and anxiety, he does not descend into any analysis as to what will become of the Adjustment Disorder and depression and anxiety if the plaintiff were able to abstain from alcohol. There is no evidence that the painful right shoulder condition which has contributed to his mental state will be likely to disappear if the plaintiff ceases to abuse alcohol. In any event, the abuse of alcohol is a direct result of that condition and a very problematic addiction in itself. The plaintiff has tried to reduce his alcohol intake, but still drinks a significant amount during each day. Dr Ratnayake, has only seen the plaintiff twice, separated by a period of two years. I consider the opinion of his treating psychiatrist, Associate Professor Wong, who has seen him regularly over a number of years, as well as the reports from his two treating psychologists, are of far greater assistance to the Court.
[39]See the judgement of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 at 729-730.
41 Despite substantial psychological, psychiatric and pharmacological treatment there has been no improvement in the plaintiff’s mental state over the last three years. I find that the plaintiff has a permanent mental impairment. He has an ongoing Adjustment Disorder, with anxiety and depression which is severe. He suffers social isolation and a need for significant anti-depressant and anti-anxiety medication. I am satisfied that the plaintiff has suffered a permanent, severe mental or behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury” in s134AB(37) of the Act, that is, such disturbance or disorder has pain and suffering consequences which, when judged by comparison with other cases in the range of such possible disturbances or disorders, may be fairly described as more than serious to the extent of being severe.
The issue of loss of earning capacity
42 It is clear that in order to succeed on this head, the plaintiff must prove a permanent loss of earning capacity of 40 per cent or more of his pre-injury earnings after rehabilitation or retraining and taking into account his capacity for suitable employment.
43 It is agreed between the parties that the plaintiff’s without-injury earnings are $36,000. Accordingly, the plaintiff needs to establish that his earning capacity is less than 60 per cent of that amount, which is $21,600 per annum or $415 per week.
44 Mr Mighell, on behalf of the plaintiff, submitted that the Court should be satisfied that on the basis of his physical injury and, also, on the basis of his psychiatric injury, the plaintiff effectively has no work capacity and, hence, satisfies the loss of earning capacity test.
45 Ms Manova, on behalf of the defendant, submitted that the Court could not be satisfied that the plaintiff has a permanent psychiatric impairment, relying on Dr Ratnayake’s view that if the plaintiff addresses his alcohol abuse problem then he will be fit for suitable employment. I have already addressed this argument in dealing with the pain and suffering consequences of the plaintiff’s psychiatric condition and made it plain that I do not accept Dr Ratnayake’s view. Moreover, Dr Ratnayake did not descend to any particularity about whether he regarded suitable employment as being full or part-time employment.
46 As far as the plaintiff’s shoulder injury is concerned, Ms Manova submitted that the Court should be satisfied that the plaintiff is capable of performing somewhere in the order of 20 hours per week as either a dispatch clerk, as outlined in the vocational assessment report prepared by Recovre dated 14 January 2016. Alternatively, she submitted that the plaintiff could work 20 hours per week in a stock clerk job, identified in that same report.
47 Mr Buzzard, following a medico-legal examination on behalf of the defendant, provided a report dated 20 March 2014 in which he acknowledged that the plaintiff’s right rotator cuff surgery had not been successful, and stated that the plaintiff could not work in a job with a range of movement of his right shoulder greater than that range which he, Mr Buzzard, had measured and noted. He said it was reasonable to accept that the plaintiff could not do his pre-injury work, but he would be capable of suitable employment. Unfortunately, Mr Buzzard has failed to translate his recorded measurements into any meaningful analysis as to the type of work that the plaintiff could do and whether it should be full-time or part-time. Accordingly, I am not assisted by his opinion, which seems to have been obtained primarily for the purpose of assessing an impairment benefit pursuant to an application made by the plaintiff.
48 Mr Battlay, in his most recent medico-legal report to the defendant dated 7 May 2015, unlike to Mr Buzzard, states “He certainly has had a good result with the operation”. This is quite contrary to the evidence that, since his last surgery, the plaintiff has had intractable pain requiring, multiple steroid/anaesthetic injections into the shoulder, as well as daily analgesia by way of Endone and Panadeine Forte. Mr Battlay’s report is somewhat contradictory in that, notwithstanding that he claims that the plaintiff has had a good result from the operation, he opines that this heavy regime of painkillers is appropriate. His report is confusing in that he says that he does not think that the plaintiff is pretending his symptoms, but his level of activity is perhaps in excess of what one would expect, yet he notes that the plaintiff’s hands were not calloused or dirt-engrained to indicate activity other than what he described.
49 Notwithstanding that, in his earlier report dated 23 April 2013, Mr Battlay expressed an opinion that the plaintiff was capable of returning to his full pre-injury duties but, preferably, should avoid manual handling in excess of 20 kilograms and overhead reaching (a statement which shows a lack of understanding of the plaintiff’s pre-injury duties which required heavy manual handling of tyres), in his later report, he found the prognosis was for “much the same” but reduced the weights that the plaintiff could lift to under 5 kilograms. Without any analysis of the jobs identified in the vocational assessment report, Mr Battlay simply opined “I note the potential redeployment options and, as stated before, he could potentially work full-time”. This assertion without supportive reasoning suffers the same deficiency as Dr Ratnayake’s opinion. Mr Battlay has taken no note of the plaintiff’s limited level of education, the fact that he has only ever worked in manual employment of an unskilled and relatively heavy nature, and that he has no clerical, computer or office skills at all. Notwithstanding this, he states “I do not think that further rehabilitation is appropriate”. I place no weight on this report, which contains contradictions, makes bare assertions and, on its face, does not make a great deal of sense.
50 Dr Yong,occupational physician, whose most recent medico-legal assessment was provided to the defendant on 18 January 2016, considered that the plaintiff could not return to his pre-injury duties. However, he stated that the plaintiff had a current capacity for work with the following restrictions:
· avoiding repeating above shoulder height tasks or reaching duties;
· avoiding repeated firm pushing or pulling tasks;
· avoiding lifting move than 5 kilograms on a repeated basis; and
· reduced working hours.
51 He considered that the plaintiff could initially commence three hour shifts of three days per week and progressively increase to working four hour shifts on five days per week over a three to four month gradual transition period. He considered that the dispatch clerk role identified in the vocational assessment report seemed to require minimum manual handling and was likely to comply with the restrictions which he had imposed, but it would be necessary to have the plaintiff undergo an occupational rehabilitation program in order to return to work.
52 I note that Dr Yong has a history that the plaintiff left school after Year 9. In fact, his formal qualification is having completed Year 8, and he left part-way through Year 9, and he has attained no further academic qualifications since that time. Also, although the dispatch job is described as falling within the “sedentary” category of work, the description in the vocational assessment report makes it clear that employees frequently sit at computer stations while completing clerical tasks and use of handheld objects and equipment such as pens, calculators, markers and electronic scanners is frequent. It notes that Year 10 is the desired level of education, and the occupation requires a medium level of literacy with typical competency levels in Windows/Mac Operating System 4, email/internet use, office suite and industry/workplace software including stock control software.
53 Dr Yong does not seem to have taken into account that the plaintiff has injured his right dominant arm, and this job description would require him to regularly write and key into a computer with that hand in circumstances where he has no computer skills at all. Moreover, the plaintiff’s completed educational level at high school is two years behind the desired level of education for the job, and the plaintiff has indicated that he never finished his apprenticeship because he had trouble with writing and spelling.
54 The plaintiff impressed me as an unsophisticated person who was fairly inarticulate I note that, in a vocational assessment report by Ms Green dated 28 October 2015, the plaintiff’s English literacy skills for general clerical work were assessed as “very low”.[40] Ms Green also tested his keyboard speed at 10.8 words per minute and noted that 40 words per minute is the required minimum to gain an entry level office job where computer skills are required.[41] Further, the plaintiff’s current treating psychologist, Dr Davidson, in his report dated 15 December 2015, conducted a detailed work potential profile assessment for the plaintiff. This indicated that the plaintiff would require extensive support in areas of social resources, abilities and physical ability, as his scores indicate that he is functioning well-below average. In addition, he had sub-scale scores on numeracy and technology use, which were average and below average respectively. He also noted that the plaintiff often struggles with problem solving and communication. He concluded “To successfully return to the workplace, Mr Mauro would require extensive support, probably involving daily long-term assistance and it may be difficult for him to find a workplace that could offer him the level of support required”.[42]
[40]PCB 80
[41]PCB 84
[42]PCB 55L
55 Having examined the vocational assessment report, which details the requirements of a dispatch clerk position, I note, amongst other things, that computer-based tasks occupy 90-95 per cent of the work day, that mouse-clicking is used extensively, and that numerical data entry is more frequently used that word-based data entry. In order to even be considered for such position, the plaintiff would have to undergo a very substantial retraining program. With the levels of pain that he experiences, coupled with the drowsiness associated with his medication, I do not consider that it is likely that he would have the concentration to achieve the desired pre-entry level of Year 10 education, or to have the capacity to master computer skills which would take up to 95 per cent of his day, particularly given his average numeracy skills and below average technology skills as assessed by his psychologist.
56 The other job advocated as suitable employment by the defendant was that of a stock clerk, as described in the vocational assessment report. This is a full-time position working Monday to Friday from 9.00am to 5.00pm. It involves computer/desk-based tasks which occupy 70-80 per cent of the work day. Again, numerical data entry is more frequently used than word-based entry and mouse-clicking or use of the tab key is used extensively. It is necessary for a worker in this job to manually check paperwork associated with inwards goods to ensure that prices are correct and that the correct number of items has been received and bilateral arm use is typical with one hand holding documents open and the other completing data entry tasks or holding the telephone. There may also be a requirement to perform computer navigation whilst on the phone or to complete data entry whilst on the telephone.
57 As with the dispatch clerk job, Year 10 is the desired level of education in order to be considered for work as a stock clerk, and the computer skills require a medium level of digital literacy with competency in the same systems mentioned for the dispatch clerk job. The plaintiff does not have the desired level of education for the job and I consider that the level of training required for him to be even able to attempt it would be overwhelming for him with his pain and levels of medication and compromised alertness. The careful cross-checking activity involved in this job would require high concentration and attention to detail. Moreover, there is no guarantee that the plaintiff could work at his own speed or take breaks as required when his pain levels are high. Thus, I conclude that it is not a realistic suitable employment proposition for him.
58 When the plaintiff’s treating surgeon, Mr Dallanana last saw the plaintiff in October 2012, he stated: “The right shoulder itself was of good function and there was not particular concerns with pain, weakness or other incapacity related to it. Structurally it is known to be sound from the findings at surgery. From a shoulder perspective there is no reason why the patient could not conduct any type of work.”[43] Mr Dallanana did not consider that any further treatment would be required for the right shoulder. As previously mentioned, Mr Dallalana has not seen the plaintiff since 2012 and that review was only six months after the surgery. Indeed, in that 6 month period Mr Dallanana had noted that “His progress post operatively was marred by depression and scapulothoracic pain and he required treatment by way of injection into the scapulothoracic area and physiotherapy.”[44]
[43]PCB 48
[44]PCB 47
59 Contrary to Mr Dallalana’s somewhat glowing report of the success of his own surgery, the plaintiff’s treating general practitioner, Dr Ng, recorded, “In 2012 he was again referred to another surgeon, Dr Richard Dallalana. He underwent another arthroscopic surgery but felt no better after this. He became depressed after this and tried to end his life on two occasions.”[45] This Is hardly the picture of a man who had no particular concerns with pain, weakness or other incapacity following a successful shoulder procedure. In a subsequent report, Dr Ng reiterated that Mr Dallalana’s surgery had not been helpful and that the plaintiff had since developed adhesive capsulitis. He noted that the plaintiff’s prognosis remained guarded as he had shown no improvement with the shoulder injury notwithstanding that he was undertaking all the treatment that was available.[46] In his most recent report dated 5 February 2016, Dr Ng gave his opinion that, taking into account the plaintiff’s employment history, transferrable skills, education and pain levels, he had no capacity for work based on his shoulder injury alone and no capacity for work based on his psychiatric injury alone.[47]
[45]PCB 15-16
[46]PCB 13-14
[47]PCB 13A
60 Histories given by the plaintiff to other doctors are contrary to the positive picture reported by Mr Dallalana after the surgery. For example, in a medico‑legal opinion obtained by the plaintiff’s solicitors from Mr Kossmann, it is recorded, “Post operatively, Mr Mauro told me that he had no symptomatic improvement. He returned to work again on modified light duties for approximately one year until he was retrenched in October 2013.” Mr Kossmann went on to state, “Mr Mauro told me that he underwent physiotherapy and osteopathy with no symptomatic improvement. He underwent six or seven right shoulder corticosteroid injections, including an ultrasound guided right scapular corticosteroid injection on 8 November 2013 and the last one being two months ago, with no symptomatic improvement on each occasion.” This examination took place in September 2015 and, at that time, Mr Kossmann recorded that the plaintiff “complained of persistent right shoulder pain that is aggravated by movement, in particular by overhead activity. He complained of an associated diminished range of motion. The pain fluctuates in intensity and is directly proportional to his level of physical activity. He is unable to carry a heavy load in the right hand and he is woken from sleep if he rolls onto his right at night.”[48]
[48]PCB 57
61 On physical examination, Mr Kossmann found 60 per cent loss of flexion and of abduction in the right shoulder compared to the left. He considered that the plaintiff’s prognosis is poor and that he would continue to suffer from pain in his right shoulder joint. He concluded, “Having taking into account Mr Mauro’s right shoulder injury and its sequelae, and the very many barriers he faces to being able to gain, undertake or sustained suitable employment, it is my opinion that he has only a theoretical work capacity and when one takes into account the other barriers impacting his ability to gain and sustain employment he is not fit for “suitable duties” and has no “current work capacity”. Furthermore I am of the opinion that on the balance of probabilities Mr Mauro will have no work capacity in the foreseeable future.”[49] It would appear that this opinion must have taken into account both the plaintiff’s physical and mental state because Mr Kossmann then went on to state, “Based on Mr Mauro’s organic right shoulder injury alone, I am of the opinion that he has capacity to return to work in a sedentary role, without using his right upper extremity.”[50] In other words, Mr Kossmann effectively confines the plaintiff’s work capacity based on his physical injury to that of a one-armed man who can only use his non-dominant, non-injured left hand.[51]
[49]PCB 60
[50]PCB 60
[51]Report dated 29 September 2015, PCB 60
62 Dr Sutcliffe, occupational physician, provided a medico‑legal assessment to the plaintiff’s solicitors in a report dated 2 February 2016. Dr Sutcliffe also took a history that Mr Dallalana’s surgery did not assist and, amongst other things, the plaintiff had attended a pain management course at Latrobe Hospital but still described a pain intensity of nine out of ten in the right shoulder and neck area, waking three to four times at night and being able to drive but only using his left hand, noting that the left shoulder also becomes painful. She noted decreased height of the shoulder and altered contour of the right shoulder girdle and limitation of flexion and abduction to 90 degrees and hand grip of only 4 kilograms on the right compared to 40 kilograms on the left. She considered that the plaintiff was permanently incapacitated for his pre-injury occupation and could not return to manual handling and would require retraining in a more sedentary occupation before he could return to work. She considered that the prognosis was poor and that he would require ongoing medication, pain management and supportive treatment from his general practitioner. She considered that he had no capacity to work on a reliable, permanent and consistent basis as a result of the right shoulder injury and that as the time of her examination his difficulty with concentration and memory and problem solving would restrict his capacity to undertake any retraining.
63 A vocational assessment report prepared by Ms Green at the request of the plaintiff’s solicitors, dated 28 October 2015, reaches a similar conclusion to Dr Sutcliffe. She stated, “Mr Mauro does not have sedentary transferrable skills that would enable him to be considered for occupation where he could organise his daily work around his current physical tolerances.”[52] She went on to note that, “If a perspective employer requested Mr Mauro to attend a pre-employment medical examination it is highly unlikely that he would be offered employment either in a physical or sedentary occupation” and noted that the side effect of drowsiness from his medication and post-injury history of alcohol consumption would also be an occupational health and safety hazard. She noted that he had been out of the workforce now since October 2012, that he had problems with concentration and she considered that he would have difficulty being punctual and sustaining steady employment without regular absenteeism.[53]
[52]PCB 84
[53]PCB 88
64 Without taking into account the plaintiff’s psychological/psychiatric condition, my assessment is that the plaintiff, who has formal education to the completion of Year 8 level and has only ever engaged in manual work, is effectively reduced not only to a light work capacity because of the injury to his dominant arm, but, also he is effectively reduced to being a one-armed worker because of the pain and restriction of function of his dominant arm. He has limited literacy, numeracy and communication skills, no experience in an office environment and no computer skills. I consider that it would take an extraordinarily sympathetic employer, who was not concerned about efficiency or a profit motive, to even consider the plaintiff as an employee. The plaintiff would have to be permitted to do work at his own pace with breaks if he had exacerbation in pain or was feeling drowsy because of his heavy analgesic medication. Although it is possible that the plaintiff, with a very sympathetic employer, might manage an hour or two of very light work which could be done with his non-dominant hand, I do not consider that this translates into a real work capacity in the real world. Thus, I conclude that it is fanciful to suggest that now or in the foreseeable future the plaintiff would be able to manage anything like 15 or 16 hours per week on a consistent and reliable basis, which is what would be necessary in order for him to earn at least 60 per cent of his without-injury earnings. Accordingly, I am satisfied that on the basis of his physical injury, the plaintiff is effectively totally incapacitated for work on a permanent basis. Thus, he satisfies the requisite test of having sustained a loss of earning capacity of 40 per cent or more and I am satisfied that he is not capable of any retraining or rehabilitation which is likely to make a difference to his current inability to undertake suitable employment.
65 If one looks at the plaintiff’s psychiatric/psychological condition of Adjustment Disorder with anxiety and depressed mood, it is readily apparent that this is secondary to his physical injury. Given that I have found that there is no realistic likelihood of improvement in the pain and suffering consequences of the plaintiff’s physical injury which have led to his psychiatric/psychological injury, I consider that it follows as a matter of logic that he has also satisfied the requisite test for loss of earning capacity in relation to his mental injury. In this regard, it should be noted that he continues to take two antidepressant medications, Pristiq and Avanza, together with the anti-anxiety medication, Vallium and sleep medication, Imovane.
66 The plaintiff’s psychiatrist, Associate Professor Wong, who has seen the plaintiff regularly since April 2013, notes that the plaintiff is socially withdrawn and isolated and, notwithstanding both psychological and psychiatric treatment, he has shown limited progress. Associate Professor Wong is of the opinion that the plaintiff is unfit psychiatrically to return to his pre-injury level of work capacity or any alternative employment compatible with his education, training and experience and will remain so in the foreseeable future. This is a very similar opinion to that expressed by Associate Professor Wong two years earlier in his report dated 17 September 2013.
67 A medico‑legal assessment from Dr Epstein, psychiatrist, embodied in a report dated 22 June 2015, notes that the plaintiff appears to have developed a Major Depressive Disorder of moderate severity, with possible psychotic symptoms, alcohol abuse that has improved but is still present, and that there have been major changes in the plaintiff’s behaviour in that he reports being rarely happy and feels flat 85 per cent of the time and his self-esteem and self-confidence has dropped. He feels bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and has problems with memory and concentration and is less sociable. Dr Epstein noted that about two days per week the plaintiff became so depressed that he stays in his room and feels hopeless, helpless, useless and worthless and is sometimes tearful.[54] This history accords with the plaintiff’s own evidence that there are days when “I just sit down or can’t leave my bedroom. I just don’t want to know anything or anyone. I cry myself to sleep sometimes, because I'm just in pain.”[55] Dr Epstein concludes that the plaintiff’s psychiatric state alone would prevent him returning to work in any capacity and his prognosis for improvement is poor.[56] It is noteworthy that the defendant’s medico‑legal psychiatric opinion from Dr Ratnayake has no history of this degree of dysfunction by the plaintiff and I have already referred to my other misgivings concerning Dr Ratnayake’s opinion.
[54]PCB 70
[55]T 28
[56]PCB 73
68 I accept the opinion of Dr Ng, Associate Professor Wong and Dr Epstein that from the point of view of his psychiatric state alone the plaintiff has no capacity for suitable employment currently and that that situation is permanent, that is, likely to remain so into the foreseeable future. I consider that the plaintiff’s mental state makes it unlikely that he could participate with success in any rehabilitation or retraining which will increase his work capacity. Apart from his low mood, he has difficulty trusting other people and communicating with them, as well as suffering significant fatigue and anxiety and lack of concentration. On all of the evidence before the Court, I find that the plaintiff has satisfied the loss of earning capacity test pursuant to s134AB(b) and (g) of the Act in relation to his severe mental or behavioural disturbance.
69 Accordingly, the plaintiff is granted leave to bring common law proceedings to recover damages for both pain and suffering and loss of earning capacity in relation to the physical injury to his right shoulder as well as the psychiatric/psychological injury the subject of this application.
0
0
0