Mikhail v Victorian WorkCover Authority
[2017] VCC 1507
•27 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04394
| MOURAD MIKHAIL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 June 2017 | |
DATE OF JUDGMENT: | 27 October 2017 | |
CASE MAY BE CITED AS: | Mikhail v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1507 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – paragraph (a) and paragraph (c) of the definition of “serious injury” – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave granted to the plaintiff to bring proceedings at common law to recover damages for pain and suffering and pecuniary loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr C O’Sullivan | Maurice Blackburn Lawyers |
| For the Defendant | Mr P D Elliott QC with Ms M Tait | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him while working for Hume Doors & Timber (“the employer”) on 18 October 2012.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a)permanent, serious impairment or loss of body function; or
…
(c)permanent, severe mental or permanent severe behavioural disturbance or disorder;”
5 The body function relied upon is a right upper limb injury. The mental or behavioural disturbance relied upon is a Major Depressive Disorder.
6 The plaintiff relied upon two affidavits, sworn 4 May 2016 and 9 May 2017. The plaintiff was cross-examined in Court. I have not summarised the plaintiff’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all of the tendered material.
The legislative framework
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by him arose out of, or in the course of, or due to the nature of, his employment with the employer;
(b)the injury, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[1]
(c) the seriousness of an injury is to be judged by reference to the consequences to the plaintiff of the impairment, disfigurement, mental or behavioural disturbance or disorder;[2]
(d)in addition to the above definition of a serious injury, the Act contains a “narrative test” which requires that the injury, in comparison with other cases, is “more than significant or marked and as being at least very considerable” in the case of paragraphs (a) and (b) or “more than serious to the extent of being severe” in paragraph (c);
(e) In the case of paragraph (c) of the definition of serious injury, the word “serious” and “severe” are not to be equated, and the word “severe” is of stronger force than the word “serious”.[3]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[2]Section 134AB(38) of the Act
[3]Mobilio v Balliotis [1998] 3 VR 833 per Brooking J
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies subparagraph (i) but not subparagraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of pain and suffering damages only.
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[4]
(a)that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[5]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[6]
(c)that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative; and
(d)that even with rehabilitation and retraining, he will sustain a loss of 40 per cent or more.[7]
[4]Section 134AB(19)(b) and (38)(e) of the Act
[5]Section 134AB(38)(e)(i) of the Act
[6]Section 134AB(38)(e)(ii) of the Act
[7]Section 134AB(38)(g) of the Act
10 If the plaintiff satisfies the tests laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[8]
[8]Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 In determining the application, the Court:
(a)must make the assessment of “serious injury” at the time the application is heard;[9]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]Section 134AB(38)(j) of the Act
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [628]; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
13 Counsel for the defendant informed the Court that the following issues were relevant to the Court’s determination of the plaintiff’s application:
(a)The plaintiff’s credit and reliability as a witness. Consequently, the medical opinions that are based largely on the acceptance of the plaintiff’s complaints are similarly unreliable;
(b)The plaintiff’s right shoulder injury has largely resolved and what the plaintiff is complaining of now is exaggeration, which is either conscious or there is some kind of functional psychological overlay;
(c)The consequences of any mental or behavioural disturbance or disorder relied upon by the plaintiff do not meet the “severe” test under paragraph (c) of the Act.
Credit of the Plaintiff
14 The plaintiff gave his evidence through an interpreter. His evidence was that he did not speak much English.[11] However, I note that Dr Matthew Tagkalidis, psychiatrist, recorded that the plaintiff attended the examination accompanied by an Egyptian interpreter “to whom he referred only very infrequently”.[12] Mr Rodney Simm, orthopaedic surgeon, noted that he was assisted by a professional Arabic interpreter but that for much of the interview he was able to communicate with the plaintiff in English.[13] This was the experience of Dr Steven Adlard and Dr Dominic Yong. Dr Igor Shvetsov said the plaintiff spoke with a marked Arabic accent.[14] Ms Katrine Green said the plaintiff provided his history in “a very strong accent”.[15] She said that he had insufficient reading skills to undertake a basic literacy assessment.[16] Other medical witnesses recorded that an interpreter was present at examination.[17]
[11]Transcript (“T”) 16, Line (“L”) 28
[12]Plaintiff’s Court Book (“PCB”) 90
[13]Defendant’s Court Book (“DCB”) 87
[14]PCB 46
[15]PCB 106-7
[16]PCB 107
[17]Mr Kossman; Dr Slesenger
15 Some medical witnesses referred to witnesses being in attendance. Dr Angus Forbes and Mr Clive Jones said the plaintiff attended the first interview with his wife. Other medical witnesses made no reference to an interpreter being present. Overall, I accept the plaintiff probably has a capacity in English but does have a thick accent. There was no suggestion that the plaintiff could not work because of his lack of English speaking skills. I accept that it was appropriate for the plaintiff to give his evidence through an interpreter.
16 A number of the medical witnesses suggested that the plaintiff exaggerated his symptoms. In August 2014, Mr Clive Jones said the plaintiff’s symptoms “appear to be substantially exaggerated”.[18] Dr Kevin Fraser, rheumatologist, said the plaintiff “would appear to be exaggerating his symptoms and signs”.[19] Dr Michael Bowles suggested he was “also exhibiting abnormal behaviour”.[20] Mr Peter Battlay said he presented with a florid illness behaviour.[21] These reports were not current. In April 2017, Mr Simm said the plaintiff was strongly focused on his symptoms but that he was “not suggesting that his presentation is necessarily contrived”.[22] Other medical witnesses made no comment on this aspect.[23] All medical witnesses accepted that the plaintiff had a work-related injury.
[18]DCB 29
[19]DCB 44
[20]DCB 36
[21]DCB 59
[22]DCB 94
[23]Dr Yong, Dr Slesenger and Dr Megally
17 The plaintiff has been under surveillance for 88 hours in total. In Court, I was shown film of the plaintiff dated 25 February 2017, which was approximately one hour in duration. In cross examination, the plaintiff agreed the surveillance showed him travelling on the train to Melbourne with his wife and his parents-in‑law.[24] He agreed he was happy on the film because it was his 50th birthday.[25] He also agreed he was seen holding a mobile phone freely in his right hand.[26] While the plaintiff is seen moving his right hand, I did not see the plaintiff raise his arm from his shoulder nor raise his arm above shoulder height. He is seen to bend his right arm at the elbow and move the lower part of the right arm. The plaintiff was then seen getting off the train and travelling by tram to Carlton, where he had a birthday lunch. The plaintiff said that, although the film showed him using his right hand, he was in pain.[27] He disagreed with counsel for the defendant that the film did not show him display any restrictions in movement of his right arm.[28]
[24]T53-54
[25]T54
[26]T56
[27]T58-59
[28]T60
18 I accept that the plaintiff had freer movement of his right arm in the surveillance than I observed in Court. Further, I accept counsel for the defendant’s submission that the plaintiff was actively engaged in conversation, moving his right arm freely and socialising with others. However, it was the day of his 50th birthday, which he was celebrating with his wife and parents-in-law. Given the fact that the plaintiff was under surveillance for 88 hours, and that I was shown one hour of film, I accept that the other surveillance did not assist the defendant.
19 Overall, I accept the plaintiff may have exaggerated his symptoms on occasions. However, Mr Simm, in a current report, took the view that the plaintiff’s presentation was not necessarily contrived and other more recent medical witnesses made no comment about the plaintiff’s exaggeration of his physical injury. All doctors accepted that the plaintiff was being prescribed substantial opioid medication, which should be reduced.
20 I take the view that, on occasions, the plaintiff was not a reliable witness. I will therefore rely upon the independent medical evidence as to the extent of his injury.
The Plaintiff’s background
21 The plaintiff gave his evidence in Court through an interpreter.
22 The plaintiff was born in Egypt in February 1967. After leaving school, he obtained welding and sheet metal working qualifications. He taught as a welding teacher for approximately five years. He moved to Australia in 1991. Initially, he worked as a cleaner, then worked as a cook at various restaurants in Melbourne for approximately twenty years. He worked as a storeman for about one year. In or about June 2010, he commenced working for the employer, Hume Doors & Timber, on a full-time basis doing door manufacturing work. The plaintiff said the job was heavy in nature and involved him lifting and handling hundreds of doors per day.
23 On or about 18 October 2012, the plaintiff was involved in lifting heavy doors within a confined space. Whilst lifting one door, he felt a clicking sensation in his right shoulder. He continued working but, over the next couple of hours, he developed pain in the right shoulder. He continued to work and finished his shift. The next morning, he woke with a painful right shoulder. He returned to work the following day but his shoulder became very painful. He stopped work early and went to see a physiotherapist. He rested over the weekend and returned to work the following week. However, he continued to have shoulder pain. He consulted his general practitioner and was referred for an ultrasound scan of his shoulder. His general practitioner certified him unfit for work, and he was referred to an orthopaedic surgeon, Mr Eden Raleigh, who recommended surgery.
24 On 15 January 2013, Mr Raleigh performed surgery on the plaintiff’s right shoulder. Subsequently, the plaintiff complained of pain and difficulty moving his right arm. In April 2013, Mr Raleigh changed the plaintiff’s medication, and over the next months, he was prescribed medication including Tramal, Panadeine Forte, Endone and OxyContin. On 29 April 2013, he had an injection of steroid into his right shoulder. On 13 May 2013, he underwent a hydrodilatation of his right shoulder, which caused a sharp increase in right shoulder pain. In July 2013, he was referred to a pain specialist, Dr Nick Christelis, who prescribed Lyrica and Norflex, and the anti-depressant, Cymbalta.
25 The plaintiff’s employment was terminated in December 2013 and the funding for his physiotherapy treatment was terminated around this time. In November 2013, he saw a pain specialist, Dr Selva Mudaliar, who recommended a pain management program at the St John of God Hospital. He commenced the pain management course in July 2014.
26 While undertaking a multi-disciplinary pain management program, the plaintiff attended psychology appointments with Dr David Tinney between July and October 2014. Dr Tinney diagnosed an Adjustment Disorder with Depression and Anxiety secondary to the physical injury he sustained at work. At his last psychology session, he was reassessed with the Depression, Anxiety and Stress Scale, which indicated that the severity of his depression symptoms had worsened. The plaintiff was referred to Dr Shvetsov for treatment in 2014.
27 The plaintiff’s evidence was that, prior to the work injury, he suffered from some occasional aches and pains over the years whilst working as a cook. In March 2007, he saw his general practitioner regarding some pain in the right shoulder. The pain resolved and did not stop him from working thereafter.
28 Prior to the work injury, the plaintiff had never suffered depression nor experienced any psychiatric difficulties. He had never seen a psychiatrist or psychologist for treatment. He had never been prescribed anti-depressant medication.
29 I shall now consider whether the plaintiff has suffered a mental or behavioural disorder within the definition of “serious injury” under the Act.
Psychiatric injury
30 In January 2017, Dr Shvetsov, treating psychiatrist, diagnosed an Adjustment Disorder with Depressed Mood persistent form.[29] He said the plaintiff’s current presentation fulfils the criteria required for this diagnosis, including development of emotional and behavioural symptoms in response to an identifiable stressor (injury). He said the symptoms caused marked distress, resulting in significant impairment in social and occupational functioning. The condition has been present for more than six months and transformed into a chronic (persistent) form.
[29]PCB 53
31 Currently, Dr Shvetsov monitors the plaintiff’s mental status and medications every four to six weeks. His antidepressant, Duloxetine 120 milligrams, was changed to desventapaxine 200 milligrams (maximum recommended dose), twelve months ago. The change of medication has not resulted in any major health improvement. He also provides supportive therapy in improving coping mechanisms, especially in regard to better coping mechanisms, in particular issues of impulsivity, sleep and anxiety. Dr Shvetsov said with the current level of symptomology, the plaintiff is not fit for pre-injury duties or any duties involving machine handling because of the plaintiff’s impaired concentration and forgetfulness. He said he would be a potential danger for re-injury.
32 Dr Shvetsov said, looking at the plaintiff’s performance from a pure psychiatric point of view, he would be fit for part-time work that does not require good concentration and frequent attentions shift. He noted that due to the lack of any recognised qualification in Australia, the plaintiff would only be suitable for physical work that he is unlikely to handle due to his shoulder injury. He said there has not been any significant progress in the plaintiff’s mental state over the last two years, despite treatment. He believed the plaintiff’s condition had stabilised and is unlikely to improve in the future. He obtained a history of poor concentration, forgetfulness, low level of energy and motivation.
33 In October 2014, Dr Shvetsov said he treated the plaintiff on a monthly basis since August 2014 and noted that the plaintiff was seeing a psychologist, David Tierney, on a monthly basis.
34 In February 2017, Dr Matthew Tagkalidis, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed a Major Depressive Disorder relevant to the claimed injuries.[30] He said that the plaintiff’s psychiatric condition is chronic, despite appropriate treatment, and given that his physical state is long-term; his emotional state is highly likely to be of a permanent nature.
[30]PCB 97
35 Dr Tagkalidis did not believe the plaintiff could perform his pre-injury duties on a reliable and consistent basis. It was his view the plaintiff is not fit for alternate duties on the basis of his psychological state. He concluded that the plaintiff’s psychiatric symptoms would result in major functional limitations, such that the worker could not perform alternate duties on a reliable and consistent basis. It was his view that the plaintiff’s prognosis was very guarded as a result of the chronic nature of the depressive condition in response to his physical limitations. In reaching his view, he took into account all aspects of the definition of “suitable employment”, “current work capacity” and “no current work capacity” under the Act.
36 In April 2017, Dr Tagkalidis reviewed the report of Dr Dominic Yong, occupational physician, dated 30 March 2017. The report did not alter the conclusions Dr Tagkalidis reached in his preceding report.[31]
[31]PCB 102
37 In May 2017, Associate Professor Peter Doherty, psychiatrist, examined the plaintiff at the request of the defendant’s solicitor. Associate Professor Doherty undertook a mental state examination. He said the plaintiff was an excellent historian and there was no anger, irritability, tension or nervousness evident. There were no obvious pain-related behaviours. The plaintiff appeared to sit comfortably in the chair. He related easily and there were no abnormal movements. The plaintiff reported his mood is angry and he feels lonely and troubled by his situation. He complained of panicky feelings. Associate Professor Doherty considered that the plaintiff’s affect was not depressed and was largely euthymic in quality, which is normal. There were no objective signs of depression or of anxiety. He said the plaintiff’s speech was unremarkable and there were no melancholic features. He said the plaintiff was alert, aware, orientated and in clear consciousness. There were no cognitive impairments. He said the plaintiff reported a mild impairment in concentration, attention and recall, although none was evident at the interview. Associate Professor Doherty said he had a remarkable grip on historical facts of the claimed injury. His insight was not impaired by any psychiatric condition.
38 Associate Professor Doherty said, in his opinion, the plaintiff had probably suffered an Adjustment Disorder.[32] That is, there has been a psychological reaction to the injury sustained, which he described as mild and has faded over time, replaced by, and coloured by, abnormal illness behaviour. He said the plaintiff tends to overstate and emphasise his impairments, and amplifies the effect of the injury on his psychological state. It was his view that the plaintiff’s mental state examination was unremarkable.
[32]DCB 107
39 Associate Professor Doherty noted that the psychiatrist, Dr Tagkalidis, in 2017, wrote:
“The worker displayed obvious discomfort in his right shoulder, limited facial expressiveness, burdened in expression, near tearfulness, a depressed affect.”
40 Associate Professor Doherty said none of those features were present when he examined the plaintiff. He said the plaintiff was expressive, on the ball and settled. There were no pain-related behaviours at his examination.[33]
[33]DCB 107
41 Associate Professor Doherty said that the plaintiff’s presentation is indicative that the usual criteria for a Major Depressive Disorder would not be met. He said there is no persuasive downturn in mood, no self-blame, self-deprecation or guilty feelings of significant note to meet the criteria for such a disorder.[34]
[34]DCB 108
42 Associate Professor Doherty was not provided with the report of Mr Simm. I note that he examined the plaintiff on one occasion.
43 In April 2017, Mr Simm, orthopaedic surgeon, said the plaintiff presented as a detailed historian who was strongly focussed on his symptoms. The plaintiff avoided moving the right arm. When he removed his top, there was limited movement of the right shoulder but overhead movement of the left shoulder. Mr Simm said a meaningful evaluation of his right shoulder pathology could not be undertaken because of his clinical presentation of extreme, severe pain, which was associated with virtually no active movement. He said there was no significant wasting. He attempted to gently, passively move the right shoulder and, even when slight movement was undertaken, the plaintiff demonstrated a severe pain response.
44 Mr Simm diagnosed a severe right brachial Regional Pain Syndrome. He said the current clinical signs presented are not typical of an identifiable organic condition of the right shoulder. The findings are not consistent with the diagnosis of an ongoing frozen shoulder syndrome for a number of reasons. He said patients four years from the onset of a frozen shoulder syndrome may have some residual capsular contracture, which would normally affect glenohumeral rotation. He said the global and severely painful restricted movement is now consistent with the diagnosis of the development of a somewhat overwhelming right brachial pain syndrome.
45 Mr Simm said the plaintiff’s range of movement has continued to deteriorate, as the Chronic Regional Pain Syndrome has become more entrenched. It was Mr Simm’s view that non-organic and/or psychological factors have led to severe amplification of the pain and injury response in this case. There was an initial physical cause for symptoms but the physical factors have now been largely overwhelmed and obscured by other factors. Mr Simm did not suggest that the plaintiff’s presentation is necessarily contrived. He said, as a result of an overwhelming Chronic Regional Pain Syndrome, it would appear the plaintiff has no current work capacity, which he considers will persist indefinitely. It was his view that the plaintiff’s prognosis was very poor.
46 I place significant weight upon Mr Simm’s report, which was current. Mr Simm obtained and provided a reasoned report, a detailed history, gave reasons why he considered the plaintiff was no longer suffering a physical injury and provided reasons why the plaintiff is suffering a Chronic Regional Pain Syndrome, which he considers permanent. The plaintiff’s general practitioner did not refer to the psychiatric condition in his most recent report. However, I note that he referred the plaintiff to Dr Shvetsov in 2014 for treatment.
47 Based on the current reports of medical witnesses dealing with the psychiatric condition of the plaintiff, I am more influenced by those psychiatrists who have examined the plaintiff on more than one occasion. I am particularly influenced by the view of the treating psychiatrist, Dr Shvetsov, who has treated the plaintiff on a regular basis since August 2014. Dr Shvetsov’s views are reinforced by Dr Tagkalidis, who examined the plaintiff on one occasion. Both medical witnesses formed the view that the plaintiff has a current psychiatric condition described as an Adjustment Disorder with Depressed Mood persistent form[35] and a Major Depressive Disorder relevant to the physical injury.[36]
48 I note that both Dr Shvetsov and Dr Tagkalidis considered the plaintiff could not work because of his psychiatric condition. This is consistent with the opinion expressed by Mr Simm, who diagnosed a severe right brachial Regional Pain Syndrome. He said the non-organic and/or psychological factors have led to a severe amplification of the pain and injury response. There was an initial physical cause for symptoms but the physical factors in this case have been largely overwhelmed and obscured by other factors. He was not suggesting that the plaintiff’s presentation was necessarily contrived. He concluded that, as a result of an overwhelming Chronic Regional Pain Syndrome, the plaintiff has no current work capacity. He said the Chronic Regional Pain Syndrome is likely to persist indefinitely. He described the plaintiff’s prognosis as “a very poor prognosis”.
49 I note that Dr Slesenger, occupational physician, also described the plaintiff as suffering a Chronic Pain Disorder and psychological impairment, which he noted was outside his area of expertise. Dr Slesenger limited his comments in relation to work, to the physical restrictions of the right shoulder.
50 Based on the Court of Appeal’s decision of Veljanovska v Socobell OEM Pty Ltd,[37] where a judge is satisfied the plaintiff has established a sufficient casual linkage between an initial compensable physical injury and the chronic pain disorder, the latter meeting the criteria in paragraph (c) of the definition of serious injury, then the plaintiff will be successful.
[37][2005] VSCA 227 at paragraph [40]
51 The plaintiff’s evidence was that he was depressed by his ongoing pain and inability to work. He is tearful, irritable, impatient and intolerant. He reported these complaints to doctors. He experiences negative thoughts about being a burden on his wife and sons. He is very ashamed for not providing for his family. He reported struggling to get out of bed and function, being intermittently anxious, forgetful, having an inability to multi-task and being disorientated. He struggles to remain hopeful or positive as to the future. He reported to Dr Tagkalidis that over the past two years, he had experienced constant passive suicidal ideation and four instances of active suicidal ideation involving crashing his car. He takes medication daily and receives psychiatric treatment in the form of therapy every four to six weeks. This has continued since 2014 and there is no suggestion that his treatment will terminate or be reduced. I accept that the above is evidence of indicators of a severe psychological injury. I refer to the decision of Papamanos v Commonwealth Bank of Australia.[38]
[38][2014] VSCA 167 at paragraph [44]
52 Since arriving in Australia in 1991, the plaintiff has only ever done manual work. He uses a computer to play some games and do some internet searching. He does not know how to use email or most programs on a computer.
53 The plaintiff is a man who has always been in employment. Prior to his work injury, he had no history of psychological and psychiatric treatment. He has been out of the workforce since 2012, which is five years to date. He reported to a number of the medical witnesses his desire to work. His evidence was that he would love to be working, earn an income and be useful. He reported to some of the medical witnesses negative thoughts about being a burden on his wife and sons and feels guilty and very ashamed for not providing for his family. I accept that the inability to return to work represents a significant loss to this plaintiff.
54 Given the length of time that the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as “severe” within the Act, when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching my finding, I have made a comparison with other cases in the range of possible impairments.
55 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
56 Given the medical evidence of Mr Simm, Dr Tagkalidis and Dr Shvetsov that the plaintiff has no capacity for work currently, or into the foreseeable future, as a result of his mental condition, I find that the plaintiff is effectively out of the workforce for any employment as a result of his mental condition.
57 Accordingly, there is no need to go into an analysis of wage rates as I do not accept that the plaintiff has a residual capacity, given the medical evidence.
58 Given the plaintiff’s level of medication, which is supported by his treating doctor, I accept that he does not have the capacity to return to work or participate in any form of training or rehabilitation that will return him to any meaningful work in the foreseeable future. I accept the plaintiff had undergone rehabilitation. Ms Katrine Green said the plaintiff had insufficient reading skills to undertake a basic literacy assessment. Further, Dr Tagkalidis said the plaintiff was not fit for employment because of his high level of irritability or on the basis of his depressive and anxiety state with reduced energy levels, poor concentration, frequent forgetfulness, poor stress tolerance, significant impaired judgment, lack of motivation and drive and impaired problem solving. I accept that these features of his psychological state would prohibit his ability to be retrained. Accordingly, I am satisfied that the plaintiff has no capacity for retraining.
59 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity, which will be productive of a financial loss of forty per cent or more.
60 In view of the matters I have described, the plaintiff has discharged the onus with respect to his mental condition regarding his loss of earning capacity.
61 I therefore grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
62 I will now hear the parties on costs.
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