Moslimyar v Victorian WorkCover Authority
[2020] VCC 444
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04507
| SAIFUARHMAN MOSLIMYAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2020 | |
DATE OF JUDGMENT: | 21 April 2020 | |
CASE MAY BE CITED AS: | Moslimyar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 444 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left hand – psychiatric impairment – pain and suffering – worker under 26 – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Capper vMunday Sales Pty Ltd & Anor [2013] VCC 1015; State of New South Wales v Moss [2000] NSWCA 133; Jarvis v Woolworths Ltd [2012] VCC 1329; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Sanderson v Woolworths Limited [2019] VCC 106; Cardoso v Staff Australia Payroll Services [2019] VSCA 139; Sharma v Chandler Personnel Services [2018] VCC 1658; Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
Judgment:Leave granted to bring proceedings for damages for both pain and suffering and loss of earning capacity in relation to the subparagraph (c) claim. Application under subparagraph (a), under both heads, dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin QC with Ms A Smietanka | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with Lazo Paper Pty Ltd (“the employer”) on 28 May 2017 (“the said date”).
2The application is brought pursuant to ss(a) and (c), and the plaintiff seeks leave in relation to both pain and suffering and loss of earning capacity.
3In his closing address, counsel for the plaintiff indicated that there was significant reliance on the ss(c) application but the ss(a) application was not abandoned.[1] The body function said to be impaired is the left hand.
[1]Transcript (“T”) 64
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe.” Brooking JA held,[3] having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[2][1998] 3 VR 833
[3]At paragraph [846]
[4](1995) 21 MVR 314
9 Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act 1986 (Vic), was a word of stronger force than the word “serious” where used in that Act.[6]
[5]Mobilio v Balliotis (supra) at paragraph [833]
[6]See also Phillips JA at 858 and Charles JA at paragraphs [860] to [861] to similar effect
10 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[7]
[7][2005] VSCA 227
11 When a worker is under twenty-six years of age at the date of injury, pursuant to s325(2)(e)(i) of the WIRC Act, he must establish that at the date of the hearing he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] in reaching my conclusions.
[8](2005) 14 VR 622
13The plaintiff swore two affidavits and was cross-examined. Further, he relied on an affidavit sworn by his brother, Alizai Moslimyar, on 30 March 2020. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
14 The plaintiff was born in March 1994 in Afghanistan. He had four years’ schooling and then, in about 2003, moved to Pakistan, where he stayed until 2016 in a refugee camp. His uncle, who was in Australia, then sponsored him to come out to Australia and the plaintiff arrived by himself in December 2016.
15 The plaintiff became engaged in 2018. His fiancée lived in Pakistan. It was an arranged marriage between families and he had known her from the time he was living in Pakistan.
16 In about January 2017, the plaintiff found work with the employer cutting and packing sheets of paper. He worked from 4.00pm until midnight and was given an occasional extra shift in the morning. His uncle helped him get the job.
17 When the plaintiff first came to Australia, he was doing English studies five days a week, but it was too hard and he reduced to three days a week study.[9]
[9]T34
18 On the said date, the plaintiff suffered injury to his left thumb and forefinger whilst cutting bundles of sheets of paper on a bench using a circular saw (“the incident”).
19 Initially, the plaintiff did not feel much pain, but was shocked. His hand was bandaged and he was taken to Dandenong Hospital (“the Hospital”) at which time his left thumb and forefinger were very painful. He was given injections into his left hand. The end of his thumb was hanging off and he had lost the tip of the forefinger.
20 The plaintiff was admitted to the Hospital and the next day had surgery to repair those digits. The fingernails were removed and he understood wires were put into the finger to fix fractures and some bone was taken from the end of his thumb. He was discharged that night with his left hand bandaged, and he was prescribed strong painkillers.
21 The plaintiff was seen at the Hospital several times for review over the next few months and then every six months. The injuries remained painful, particularly the thumb, with movement.
22 In June 2017, the plaintiff was referred to South Eastern Hand Therapy. He was seen initially weekly and then fortnightly for a few months, and then back to weekly as of May 2019.
23 The plaintiff also attended Hallam Medical Group on 12 July 2017, where he has continued to see Dr D’Argent. Before then, he did not have a general practitioner in Australia.
24 The plaintiff could not return to work and required ongoing painkillers and was very worried about his future. Dr D’Argent referred him to Ms Chu, psychologist, whom he first saw in 2017, and had continued to see monthly.
25 Because of ongoing pain, Mr Low from the Hospital, whom the plaintiff was still seeing, referred him to Dr Lee, a pain specialist, whom he first saw on 6 February 2019. At that time, Dr Lee changed the plaintiff’s medication and he was reviewed on 19 March 2019.
26 As of May 2019,[10] the plaintiff was seeing Dr D’Argent and Ms Chu at least monthly and having hand therapy weekly. He was then taking Lyrica, 75 milligrams in the morning and night, and Panamax, four to six a day for pain relief, as well as Cipramil for depression, and prednisolone, one tablet every three days.
[10]The plaintiff’s first affidavit
27 The plaintiff was then living in a four-bedroom house with five other men, one of whom was not there all the time. There were three Afghanis, two Indians and one Pakistani. He shared a bedroom. His housemates did the cooking and cleaning. Before the incident, the plaintiff was able to do his share, but felt guilty that he had become somewhat dependent on others.
28 The plaintiff is a devout Muslim. He found it painful to wash before prayers at the mosque as the water was not warm. He prayed five times a day. He found it hard to concentrate because of his left thumb pain.
29 Before arriving in Australia, the plaintiff went to the gym and learned taekwondo, as well as played cricket. He had not had the opportunity to do these activities since his arrival but wanted to do so eventually. He could not do taekwondo or play cricket now because of the strain it placed on his left hand and the extra pain it would cause. He would also be restricted in any exercises which required a firm grip with the left hand. His left thumb and palm pains seemed to be getting worse and he remained anxious about his future.
30 As at May 2019, the plaintiff had pain in his whole hand and the area of the palm below the thumb, with occasional low-grade pain at the end of his finger. The thumb pain and the pain below was a feeling of heaviness and hardness which became throbbing at least half a dozen times a day, lasting for three to four minutes. He could then hardly move his hand because of the pain and he just had to sit it out. It seemed to pass but nothing helped. When the pain occurred, it seemed to extend into the forearm. He also had constant numbness in the left thumb, and at times his left palm below the thumb became very hard, but that was not associated with any increased pain.
31 Pressure on the thumb or the area below it increased the plaintiff’s discomfort. He could only hold onto something weighing up to about 500 grams with his left thumb, and heavier weights required too much pressure. If he experienced a throbbing pain while holding something, he would drop it because of discomfort. Cold weather seemed to make the left hand pain worse and moving it through cold air increased the discomfort. When walking, he tended to put his left hand in his pocket to keep it warm and limit its risk of being bumped as that could cause sharp pain. He accidentally hit his left thumb when passing a windowsill at home a month earlier and that caused very sharp pain. At times, he also had to hold his left hand with his right hand across his front to protect it when walking or sitting.
32 The plaintiff favoured his left hand for all tasks. He is right handed. He could drive an automatic car, but just rest his left hand on the steering wheel using the force of his right to turn the wheel. He had to use his right hand, reaching across to put the car into gear and park, and also with the handbrake, but he found he wanted to guide his right hand with his left hand moving the handbrake to get it at the right angle.
33 When trying to sleep, the plaintiff was conscious to keep pressure off his left hand. and tended to keep it near his side. He could be woken by throbbing pain at least once a night and would then find it hard to get back to sleep.
34 Since the incident, the plaintiff had found it hard to relax and often thought about how the injury happened. He was also anxious about his future and how he might be able to support his future wife and how she would feel about him. He had a feeling of worse anxiety three or four times a day or night, mainly at night. He would then feel his heart race and he sweated, and he could find it hard to get his breath. His psychologist had given him an audio to listen to at these times, but he could lie awake for hours, finding it hard to get to sleep.
35 The plaintiff continues to experience his left hand symptoms, save that in cold weather, his pain can radiate up into his left shoulder. His left hand pain is constant.
36 The plaintiff now also finds the nail in his index finger can become ingrown and then it makes it harder for him to grip things. It is uncomfortable and painful. He also experiences loss of sensation in his thumb and index finger, which makes grip uncomfortable.
37 The plaintiff confirmed the abnormal sensation in his hand in the area of his thumb and also his difficulty with fine movements. He showed his middle finger can oppose to the palm of his hand, but he has difficulty with the forefinger and thumb pinch grip.[11]
[11]T32
38 The plaintiff continues to experience the psychological symptoms earlier deposed to. He is still always tired and emotionally exhausted. His emotional state is very bad. He struggles to sleep because of anxiety. He is constantly worrying and thinking, and some nights it can take him three or four hours to fall asleep. When he cannot fall asleep, his heart begins to beat quickly and he starts having panic attacks. These happen every night at least once.
39 The plaintiff’s anxiety manifests itself in physical symptoms. Because of constant worry, he has headaches throughout the day and at night, and becomes sweaty at times and has shortness of breath. He regularly lacks motivation and does not feel like doing anything and struggles to focus on things. His memory is very poor and he does not always remember to eat regularly because of how low he feels. He feels as though he has little emotional reactivity to things that happen around him. He feels flat, dislikes talking and talks quietly. He avoids eye contact. He feels worthless and hopeless. He has struggled with passive suicidal ideation.
Treatment
40 The insurer continues to pay for the plaintiff’s medical and like expenses.
41 On 3 October 2018, the plaintiff had a brain MRI scan on referral from Dr D’Argent because of the chronic headaches he was experiencing because of his anxiety. He understood the scan results were normal.
42 On 14 May 2019, the plaintiff changed psychologists and started to see Mr Dinh at the same practise of his previous psychologist, Ms Chu, who had gone on maternity leave.
43 On 5 July 2019, Dr D’Argent prescribed Panadeine Forte, a stronger analgesic, for the plaintiff’s left hand pain. In early October that year, the plaintiff had a ketamine injection and was an inpatient for one week. This procedure did not improve his left hand symptoms.
44 In early February 2020, the plaintiff had a further injection in his left hand at the Melbourne Pain Group but it did not help his left hand symptoms. He does not want to pursue any further investigations as he has had surgery, the ketamine infusion and an injection without improvement.
45 The plaintiff continues to see Dr D’Argent about once a month. He has weekly hand therapy with Diane at Melbourne Hand Therapy.
46 The plaintiff continues to take the same dosage of Lyrica for his physical injuries, but also now takes a stronger analgesic, Panadeine Forte, between two to six a day. His daily medication causes side effects, constipation and dizziness.
47 The plaintiff continues to see Dr Lee, pain specialist, at Melbourne Pain Clinic, on average every couple of months. He also sees Mr Dinh, on average every three to four weeks, for counselling.
48 The plaintiff continues to take an anti-depressant daily. Dr Lee has changed the type of drug, with the plaintiff having ceased Cymbalta, and he now takes Nortriptyline, 10 milligram tablets.
49 The plaintiff neglects his personal hygiene. He has had teeth problems and put off seeing a dentist. He also neglects doing much around the house.
50 Despite his symptoms, the plaintiff continues to try and go for walks each day to the mosque to try and clear his head.
51 The plaintiff does very little with his day and continues to push himself to try and get out of the house on the advice of his general practitioner and psychologist. His uncle also pushes him to get out of the house for his mental health.
52 The plaintiff continues to go to the mosque every day. He tries to go to the shopping centre or park with friends a couple of times a month but struggles to motivate himself to do so. He goes because if he stays at home he worries how low he can become.
53 The plaintiff lives in the same street as his uncle, who sometimes asks him to pick up the children from school. His uncle is also a cultural leader in the Afghani community. He has asked the plaintiff to help out at cultural events. The plaintiff has done so on average once every few months, assisting with tasks like setting out chairs, tasks he generally does with this right hand. He finds being in public emotionally difficult but appreciates his uncle’s efforts.
54 From time to time, the plaintiff has helped his uncle around the house. He tried washing the car with him. He helped in the garden and when his uncle was overseas, he had gone shopping with the family.
55 The plaintiff last worked on 28 May 2017. He could not do his pre-injury duties as they required him to frequently use both hands, including to fold cardboard, feed it into a machine, lift heavy things and use a circular saw.
56 In early 2018, Dr D’Argent suggested the plaintiff trial a return to work on office duties for a couple of hours. The plaintiff did not return on light duties. Whenever he thought about returning to the workplace, he began to feel scared, anxious and as if he was going to vomit, and he did not want to work around saws again because of his injury.
57 For over two years since January 2018, the plaintiff has seen two occupational rehabilitation providers, Accelerait and Acumen, and tried to get some work. Acumen told him he should apply for jobs. He did not apply for those suggested jobs because he did not think he could do them physically or psychologically, nor did he have the English skills for a job such as a petrol station attendant.
58 The plaintiff had tried to improve his English and had completed a Certificate II in EAL, which he began in 2017. He had to stop in 2018 as funding ran out and recommenced in 2019. It took four months in the second half of the year to complete the course, attending five days a week from 9.00am to 2.30pm, funded by the insurer.
59 The plaintiff struggled physically and emotionally doing his English course. He kept going to class because he was getting worse and worse emotionally staying at home. He was worried about his safety and felt he had to force himself to get out of the house before he deteriorated emotionally. During class, from an emotional perspective, he felt the noise was overwhelming and struggled to concentrate and focus.
60 From a physical perspective, the plaintiff also had constant, distracting pain in his left hand. His spoken English and understanding of verbal English had improved a little bit, but it was not what he would expect after this many classes. Despite his best efforts, his physical and psychological injuries were distracting him and making it difficult for him to focus in class and retain information.
61 The plaintiff still cannot read and write in English beyond his basic personal details and does not believe he could do a job that required him to communicate in English.
62 The person at Acumen who was assisting the plaintiff also applied for an apprenticeship in plumbing, a trade the plaintiff had always wanted to do, and intended to do in Australia once he improved his English. The plaintiff had to complete a written test before he could enter the apprenticeship. He could not complete either the English or maths component. The Acumen representative filled out the document on his behalf. The plaintiff did not get a spot as Chisholm was full. He did not believe he would have qualified for the course without Acumen’s help.
63 The plaintiff did not believe he had the English skills required to be a checkout operator, service station attendant, sales assistant or car park attendant.
64 The plaintiff had tried hard to improve his English and struggled to retain much because of his constant left hand pain and his psychological state. He did not believe he would have the capacity to be a packer, a job he understood involved frequent lifting, bending, stretching and carrying, as well as repetitive and constant hand and arm movements. He believed he would struggle with any job that involved bilateral hand use. He considered his left hand and consequential psychological injuries separately prevented him from returning to any work.
65 From an emotional perspective, the plaintiff has no motivation and was easily overwhelmed. He struggles to focus, concentrate and retain information, as was indicated by his difficulties with his English class.
66 From a physical perspective, the plaintiff has constant pain, ache and discomfort in his left hand. He would struggle and suffer increased discomfort to do things required to use his left hand with any type of force, including lifting more than a few kilograms, pushing, pulling or left hand grip. He would also struggle with repetitive left hand movements and his symptoms make it difficult to get a restful sleep. His medication makes him unfocussed and he does not believe he could use his left hand for typing, including repetitive cash register work.
67 The plaintiff is not sure what other job he could do, having only done four years of schooling in Afghanistan. He does not even have the Year 10 qualification in Australia and his English is not good.
68 In addition to these limitations, the plaintiff believes he would be uncomfortable driving further than his local area on a regular basis for work because of his medication. His job with the employer was his only job in Australia.
Cross-examination
69 The plaintiff was filmed after having attended an appointment with Associate Professor (“Dr”) Doherty on 4 December 2019. He confirmed he had told Dr Doherty of a range of difficulties noted by Dr Doherty in his report, but denied he told him it was hard to hold up his left hand.
70 The plaintiff agreed he was shown on the film adjusting his clothes with this left thumb and index finger, operating his mobile phone with his left thumb, holding onto the rail on the train with his left hand and using both hands to text. He seemed put his left hand on the seat to lift himself up. He could hold a mobile.[12]
[12]T9
71 The plaintiff agreed he was using his phone, but mostly uses his right hand, but sometimes his left.[13]
[13]T34
72 The plaintiff denied he exaggerated his left hand problems when he saw doctors like Dr Doherty. He can do light, small tasks but might drop things.[14] He could not do heavy things.[15]
[14]T9
[15]T10
73 There was three minutes of surveillance film taken on 6 December 2019. The plaintiff agreed he was driving his car, but disagreed he was doing so in a normal way using both hands. He used one hand.[16] Counsel for the defendant, however, accepted that there was no close up film of the plaintiff’s hands while driving.[17]
[16]T10
[17]T11
74 The plaintiff was then shown a short film of 17 March 2019, when he was attending a radiology clinic. He agreed he had pulled down his shirt with both hands and that he was carrying some documents in his left hand. It appeared however he was only carrying one piece of paper.[18]
[18]T13
75 The plaintiff agreed that when he saw Mr Ireland in February this year, he told him there was diminished sensation in the thumb and index finger that was partial. He agreed he was shown holding a set of car keys in his left hand.[19] When it was suggested the film showed a normal young man going about his business, the plaintiff said, “I do not do that daily but when I need to go I can go”. He could shave.[20]
[19]T14
[20]T15
76 When it was suggested the film showed no sign of a mental problem, the plaintiff said, “When I go outside I don’t want to [indistinct] it’s like I’m feeling sick or something and when I go home then I’m getting sicker.” He disagreed he did not have much of a problem with his left hand at all.[21] He disagreed with Dr Lee’s description that he was mildly restricted in pushing, pulling and lifting, or repetitive movements. He agreed he could use his arms over his head, but there is pain, but if he has to do it, he does. He cannot hold things properly.[22] He agreed he can go out on his own and drive by himself.[23]
[21]T15
[22]T16
[23]T17
77 The plaintiff agreed he was planning to work as a labourer when he first came to Australia and was studying English. He then said, “When I came to Australia and started studying then I decided to become a plumber.” His countrymen were coming and talking to him about their jobs at that time – “I was then - having in mind to become a plumber.” He was not sure about what study was involved for that role.[24]
[24]T18
78 The plaintiff denied his first affidavit made no reference to wanting to be a plumber “because my English was not good enough and I tried to study more and then I will become a plumber … I had it in mind but I was studying English because after I learn English I could be [indistinct] that.”[25]
[25]T19
79 The plaintiff wanted to learn English “better.” After that, but then, as far as work was concerned, he wanted to do plumbing, as he told Dr Triggs in March 2018.[26]
[26]T35
80 The plaintiff first did English at AMS, then he was sent to Chisholm TAFE in Dandenong. He went there for three or four months and finished that course. He then wanted to do Certificate III. He talked to Acumen about it and they were helping him to start the course.[27]
[27]T20
81 The plaintiff denied that he had done 1,500 hours or so of English lessons, as Dr Triggs reported.[28] He agreed, when he saw her, he did not use the interpreter much, and did so only when he did not understand things. His mood was better when studying than at home “still it wasn’t quite easy, but it was better to go out and do stuff.” He sometimes missed classes when he had appointments.[29]
[28]T21
[29]T22
82 The plaintiff agreed, as his hand therapist Diane reported in May 2019, that he was enjoying English classes. He also agreed, as she reported, he was keen to explore possible suitable retraining after he had learnt English.[30]
[30]T23
83 The plaintiff continues to see his psychologist, Mr Dinh.[31] He did not know whether Mr Dinh had talked to Dr D’Argent or the insurer about him seeing a psychiatrist, but he had not seen one yet. He has seen everyone he has been sent to.[32] His medical expenses are still being funded.[33]
[31]T24
[32]T36
[33]T25
84 The plaintiff could not work as a packer because he cannot lift heavy things and he is also not very right mentally, as well as physically. If he could, he would say “yes”, but he said “no”.[34]
[34]T26
85 The plaintiff could not work as a checkout operator. He could not scan and weigh, and record prices and products. He could not issue documents or receive payments. While he had experience working in the family shop “but here it’s like my mood and I have pain stop me do anything”.[35] He would have difficulty doing tasks on a repeated basis.[36]
[35]T27
[36]T30
86 The plaintiff could not work as a carpark attendant occasionally walking around the carpark assisting customers. While he did not have problems with sitting or standing, he could not do a little bit of driving as a carpark attendant. His writing is not very good.[37]
[37]T28
87 The plaintiff could not work as a service station attendant filling fuel tanks and containers, checking air pressure. He could do that with his right hand. He could not maintain and operate an automatic carwash, “it depended” whether he could collect payments. He could not clean around the petrol pumps and the driveway and the shop. He could not do stock control or replenish shelves.[38]
[38]T29
88 The plaintiff was not sure working as a sales assistant, he could take payment for goods. He could not display, stack, wrap and pack goods.[39] Pulling, pushing or lifting with his left hand, especially heavy things, would cause pain and doing it repetitively would cause increased hand pain.[40]
[39]T28
[40]T33
89 The plaintiff confirmed that Acumen had been trying to get him to apply for work, but denied he refused to apply for any job. He said “I cannot do it. I’m not able to do that”, when asked about the type of jobs suggested to him.[41]
[41]T29
90 The plaintiff denied he had not sought work because he was receiving weekly payments or because of the Court case.[42]
[42]T30
Lay evidence
91 The plaintiff’s uncle, Alizai Moslimyar (“Alizai”), swore an affidavit on 30 March 2020. He confirmed the contents of the plaintiff’s affidavit.
92 Alizai sees the plaintiff almost daily. He sponsored him to Australia, arranged for him to live with his friends, and helped him get a job. At that stage, when he started working, the plaintiff had no physical or emotional restrictions preventing him from working.
93 Alizai was very concerned about the plaintiff’s mental health, which had continued to deteriorate since the injury. He invited him to his house every day as he worried about him living on his own and not cooking. The plaintiff did not talk much but felt comfortable to stay at his house most of the time.
94 Alizai described his attempts to get the plaintiff out of the house, organising for him to pick up his children from school and inviting him to functions in the Afghani community. The plaintiff regularly refuses, but every now and then will come. He lacks motivation and enthusiasm when he is there. Alizai pushes him to go to the park or shopping centre with his friends.
95 The plaintiff changed emotionally after the injury. He initially was not too bad. He used Alizai’s car to learn to drive and got his licence; however, the plaintiff had slowly deteriorated emotionally to his current position where he now misses appointments with his lawyers and doctors, which Alizai tries to make him attend.
96 While the plaintiff can claim travel expenses for medical appointments related to his claim and his medication, Alizai sees him paying for these expenses out of his own pocket. He regularly asks the plaintiff to make sure he claims them back, but the plaintiff says he does not, which is incredibly frustrating. He was not like this before he was injured. He had a good work ethic and was motivated. He had now become careless and struggled to care about things. His wedding has not yet gone ahead and there is no date planned. The family is concerned the plaintiff is not in a mental state to get married and be a husband.
Wage rates
97 The plaintiff’s solicitor Nathan Maniatis from Zaparas Lawyers swore an affidavit on 1 April 2020 detailing applicable wage rates for a plumber.
98 On 31 March 2020, he called the Plumbing and Pipe Trades Employees Union, Carlton. He confirmed that the current wage rates for plumbers as of 1 March 2019 as set out in an attached table with a base rate of $50.20 per hour, plus various allowances which total a base salary for a 38-hour week of $2,177.30. In addition, there was overtime and site allowances.
99 Mr Maniatis understood from his conversation with the union that without site allowances or overtime, the base salary for a plumber on a commercial site would be at least $113,219.60 per annum.
100 The plaintiff’s regular gross weekly wage with the employer for the period 26 January 2017 to 28 May was $670.94 a week or $45,288 per annum.
101 The plaintiff deposed he had always wanted to be a plumber and that is what he intended to do in Australia once he improved his English.
The Plaintiff’s medical evidence
102 The plaintiff’s general practitioner, Dr D’Argent, at Hallam Medical Group first reported on 31 August 2017. She then noted the plaintiff was very depressed, tearful, suffering insomnia, low concentration, had no appetite and no motivation. In August 2018, in addition to his hand injury, she diagnosed a Chronic Pain Syndrome with mood changes, depression and anxiety.
103 In her most recent report of 25 March 2020, Dr D’Argent listed the plaintiff’s present symptoms and treatment requirements as persistent pain in the left hand radiating to the left elbow, restricted flexion of the left thumb and left index finger, and numbness of the left thumb and depression, which had not improved despite regular visits to the psychologists and taking antidepressants.
104 Dr D’Argent thought the plaintiff’s prognosis was poor, there having been no improvement in his physical and mental impairment for the last two years.
105 Dr D’Argent currently prescribes Lyrica, 75 milligrams twice daily; Panadeine Forte, two tablets three times daily; Cymbalta, 60 milligrams, which had just been discontinued and replaced by Allegron, 10 milligrams daily and to be increased in two weeks.
106 Dr D’Argent noted the plaintiff’s limited function of his left hand and lateral fingers. She thought he was presently permanently incapacitated. He has limited command of English. He has no skilful training to improve his ability to find any meaningful employment.
107 Diane Hedin from South Eastern Hand Therapy reported in March 2020 detailing her treatment of the plaintiff from 14 June 2017.
108 It was her opinion that for the long term, the plaintiff will have ongoing symptoms of pain in his left arm, shoulder and neck, grip weakness, diminished sensation in his left thumb and index finger, and consequently, reduced hand function. She was unaware of any procedure that could be offered to improve the sensation or range of movement in his thumb and index finger.
109 In her view, as a consequence of his left hand injury, the plaintiff is likely to be restricted in relation to work that requires strong, controlled, repetitive or fine manual handling either bilaterally or with his left hand. His work capacity is restricted by his very low grip strength, poor sensation, reduced left hand coordination and pain in his left arm, shoulder and neck. That reduced capacity is likely to last for the foreseeable future and he therefore does not have a capacity for his pre-injury work.
110 Ms Hedin noted the plaintiff had been studying English and was presently waiting on class availability to resume his studies. He was keen to explore possible suitable retraining but needed to improve his language competency.
111 The plaintiff informed her that prior to the injury, he had been an active person with interest in running, gym, exercises, martial arts and cricket. He had not participated in these activities since his injury because of his physical limitations, but also psychologically he had lost enthusiasm. He saw his friends and family from time to time, attended the mosque and did his psychology and hand therapy homework. He lived in a share house where his housemates helped him with all domestic difficulties.
112 Dr Daniel Lee, consultant in rehabilitation medicine, first saw the plaintiff on referral from Dr Low in February 2019, last having seen him on 13 March 2020.
113 Dr Lee noted the plaintiff described ongoing persistent arm pain. He had neuropathic pain with spectrum of CRPS, which had been unresponsive to stellate ganglion block. There were no further interventions planned.
114 Dr Lee thought the plaintiff’s prognosis will be guarded. He may have “burnout” whereby the condition could improve. Broadly, Dr Lee expected minimal change.
115 Dr Lee thought the plaintiff was mildly restricted in pushing, pulling, lifting or repetitive movement. He was mildly restricted on overhead activity. Gripping was reduced; typing was less. The prognosis was likely to be unchanged in the absence of any other changes to his medical treatment.
116 From a physical perspective, Dr Lee thought the plaintiff may have capacity to do his pre-injury duties with the above-mentioned restrictions. This would be at least on a part-time basis to start and he could work towards four hours a day in the first instance. His issues relate more to tolerance rather than negatively impacting the injury. From a physical perspective, he may be able to work on a part-time basis for light manual work. The starting point would be two hours on alternate days with a view to increasing to up to four hours. This may not be permanent. He may have mild restriction in activities.
117 Psychologist, Tam Dinh, first saw the plaintiff on 14 May 2019, taking over from Dr Chu. There were ten further sessions until March 2020.
118 Mr Dinh noted that the plaintiff continues to present with significant symptoms of depression, feeling chronically unmotivated, struggling to keep up with his personal hygiene at times, a loss of ability to enjoy anything, poor memory and concentration, and insomnia.
119 There had been very little improvement in the ten sessions and Mr Dinh was not optimistic significant improvements could be made in the foreseeable future.
120 Mr Dinh did not think the plaintiff had a capacity to perform his pre-injury duties. He did not believe significant improvements would be attainable in the foreseeable future. Limitations to the plaintiff being able to perform his pre-injury duties included ongoing pain and numbness in his affected hand and arm, even on minor use and mild exertion, ongoing headache and body ache, and a significant level of depression which was characterised by depressed mood and absence of the ability to experience pleasure, and ongoing sense of lethargy, feeling unmotivated, poor concentration and memory, which would make returning to pre-injury duties unsuitable and unlikely.
121 Due to the plaintiff’s mental condition, Mr Dinh did not believe he had the capacity to perform suitable employment, and this was likely to last into the foreseeable future.
122 Mr Dinh thought the plaintiff would benefit from psychiatric evaluation and a review of his medications to address his ongoing depression.
Investigations and procedures
123 On 28 May 2017, the plaintiff underwent surgery for a fractured left thumb and index finger crush injury and comminuted fracture of the thumb. The surgery was to debride and repair left thumb and index finger. On operation, it was found to be a complex crush injury to the left thumb and index finger with a comminuted distal phalanx fracture.
124 In October 2018, the plaintiff had an MRI scan of his brain for unexplained chronic headaches with suspected intracranial pathology. It was reported there was no abnormality.
125 The plaintiff underwent a ketamine injection at Healthscope on 2 October 2019.
126 A left hand x-ray of 28 February 2020 was reported to show some mild deformity evident on the volar aspect of the distal shaft and head of the distal phalanx of the thumb, and there was some deformity evident in the neck and terminal tuft of the distal phalanx of the index finger. It was noted these were both most likely related to the patient’s previous injury. There was no significant bony or articular abnormality evident elsewhere in the left wrist or hand to suggest a cause for the patient’s symptoms.
Medico-legal evidence
127 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 30 November 2019.
128 The plaintiff then reported his left hand was his major problem with ache discomfort and pain in the left thumb and index finger, which is now more diffuse and involves the palm of the hand. These symptoms caused difficulty with dextrous tasks and power work with the left hand. He had difficulty with lifting objects with the left hand and the symptoms were worse in the cold weather. The symptoms cause him difficulty with activities of daily living and sleep disturbance.
129 Mr Miller noted the plaintiff had suffered an adverse mental state reaction with anxiety, depression and development of a Chronic Regional Pain Syndrome, which was an important aspect of this case and required psychiatric review.
130 In addition to a complex crush injury to the left thumb and index finger, there had been an adverse mental state reaction.
131 In terms of the left hand, Mr Miller thought the plaintiff would have difficulty with work that involved repetitive left hand movements and the use of the left hand for dextrous and power work. It was likely the development of a Chronic Regional Pain Syndrome further impacts his capacity to work. These restrictions are likely to be permanent and work related, and the plaintiff therefore cannot return to his pre-injury duties on any significant full-time or part-time basis.
132 Further, the plaintiff will have a reduced capacity for heavy domestic and gardening activities and a reduction in capacity for pre-injury leisure and recreational activities.
133 Having been provided with the February 2010 x-ray of the left hand, Mr Miller stated that that information confirmed his view the plaintiff had suffered an injury to the left hand involving the distal phalanx for which surgery had been performed. There was no evidence of arthritic disease or other abnormality and it is likely that the injury has been complicated by the development of a Chronic Regional Pain Syndrome. The prognosis for the left hand is only poor.
134 Dr Joseph Slesenger, specialist occupation physician, examined the plaintiff on 22 January 2020.
135 The plaintiff then advised of residual pain in the left hand over the base of the thumb, index and middle fingers and palm. There was also pain in the distal radius which woke him at night. Pain was variable and aggravated by activity and cold weather but could deteriorate spontaneously.
136 There was a restricted range of movement in the wrist and fingers of the left hand, and weakness of the left hand, with particular difficulty with simple grip and repetitive movements.
137 Dr Slesenger also noted the plaintiff had developed anxiety and depression, for which he had been seen by a psychologist and had been prescribed anti-depressant medication.
138 Dr Slesenger was not able to identify any features of Complex Regional Pain Syndrome.
139 Taking into account the severity of the plaintiff’s symptoms, medication side effects, past employment history, lack of computer skills, limited English, lack of qualifications, current symptoms and functional limitations and past employment history, he thought it unlikely the plaintiff would be able to return to work performing suitable alternative duties on a consistent and reliable basis. He suggested the following restrictions – no push, pull, carry or lift over 2 kilograms on the left; no repetitive left-hand tasks and no prolonged gripping, pushing, pulling, twisting or turning.
140 Dr Slesenger thought the plaintiff could not return to his pre-injury tasks given their bimanual nature, the manual handling and postural demands associated with those tasks.
141 In terms of the future, given the chronicity of the plaintiff’s symptoms and his poor response treatment, Dr Slesenger was cautious as to the response to further intervention. He anticipated the plaintiff was likely to be left with residual impairment which will impact negatively on his capacity to return to unrestricted pre-injury duties, regardless of his response to further intervention.
142 With regard to suitable employment, taking into account the plaintiff’s age of twenty-five, his past employment history, his residential location, his variable symptoms, his medication side of effects, his limited occupational experience in Australia, his literacy limitations and his lack of computer skills, Dr Slesenger thought he was unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.
143 Dr Slesenger was satisfied that the residual domestic and recreational restrictions related to the injury.
144 Dr Richard Sullivan, pain specialist, saw the plaintiff in February 2020.
145 The plaintiff then complained of a crushing and shooting pain in his left forearm down to the base of his thumb and extending down the ventral aspect of his left thumb and second digit. There was numbness and dysaesthesia in a similar distribution. He reported reduced strength, including grip strength and fine motor co-ordination of the left hand, and clumsiness in his left hand, including a propensity to drop objects.
146 Dr Sullivan diagnosed a chronic neuropathic condition affecting the left upper limb. Additionally, the plaintiff had developed a Major Depressive Disorder and Generalised Anxiety Disorder. Dr Sullivan’s expectation was that the chronic pain condition, as well as the neurological impact and functional impact consequent to the work injury, would continue for the foreseeable future.
147 In Dr Sullivan’s view, the plaintiff can anticipate accelerated joint degeneration in his injured finger that may lead to the precipitous onset of arthritis in his interphalangeal joint or metacarpophalangeal joints of his first and/or second fingers.
148 In terms of his full presentation, Dr Sullivan thought the plaintiff is extremely unlikely to find paid employment on a steady, settled and reliable basis now or in the foreseeable future. Theoretically, he could re-engage in sedentary work that did not require utilisation of his left upper limb; however, this would require substantive retraining and likely include a better grasp of both spoken and written English. Dr Sullivan thought the plaintiff’s changes of being able to re-engage in such a role now or into the foreseeable future would be exceptionally limited.
149 Further, essentially any social, domestic or recreational activity requiring utilisation of his left upper limb in isolation or bilateral upper limbs will be substantially problematic for the plaintiff now and into the foreseeable future.
The Defendant’s medical evidence
150 Diane Hedin from South Eastern Hand Therapy reported on 6 and 16 May 2019 that the plaintiff was enjoying English classes. She noted on the latter date and subsequent attendances that he was reporting constant headaches.
Medico-legal - left hand
151 The plaintiff saw Dr Gary Davison, occupational physician, in November 2017, six months after the injury.
152 The plaintiff then had some residual pain and sensory disturbance following the injury and surgery. Dr Davison thought there may also be a psychological condition, possibly PTSD, and considered an independent psychiatric examination should be arranged in that regard.
153 Dr Davison then thought the plaintiff’s condition had not yet resolved. The plaintiff did not have a capacity for pre-injury duties but had a capacity for pre-injury hours and for suitable employment.
154 Dr Davison noted there was no formal return to work plan but there was a work site assessment document which detailed the number of duties thought to be possibly suitable for the plaintiff, whom he thought had a capacity for suitable duties on a physical basis but may or may not have a work capacity on a psychiatric basis.
155 At that stage, Dr Davison thought psychological counselling may be required. The plaintiff would need a graduated return to work and a desensitising process may need to be undertaken given the reported psychological response when he attended work in the past and the possibility there may be some degree of PTSD.
156 Dr Ralph Poppenbeek, occupational physician, examined the plaintiff in November 2018.
157 The plaintiff then described pain generally through the left thumb, extending to the radial aspect of the wrist, combined with a throbbing pain in the palm of the left hand. He described numbness involving the thumb and radial side of the palm extending to the left forearm and upper arm just above the elbow.
158 Having noted the traumatic injury to the thumb and index finger, Dr Poppenbeek thought the more relevant issue was quite advanced Chronic Pain Disorder and reporting of a fairly spread numbness which did not appear to him to have a pattern of a specific neurological deficit.
159 Dr Poppenbeek also thought there was a severe depressive disorder confirmed by two psychiatric reports, and that depressive disorder concerned him most about the plaintiff’s presentation. His major concern about treatment was the lack of referral to a psychiatrist which he believed was urgent and should be undertaken as soon as possible.
160 Dr Poppenbeek then thought the plaintiff could not return to pre-injury duties and hours and he did not have any work capacity because of the combination of the psychiatric and physical injury effects.
161 From the point of view of the physical injury alone, Dr Poppenbeek would expect the plaintiff to have returned to pre-injury duties now. This has not been the case because of the psychiatric issues. Therefore, he did not think the plaintiff had a current work capacity because of the combination of his psychiatric and physical injury issues. The physical injury issues referred to a chronic pain disorder.
162 Dr Poppenbeek considered the suggested jobs should be satisfactory from the point of view of the physical injury alone, but when combined with the psychological effects, there was no capacity for any of those jobs at the present time. The plaintiff’s future capacity for suitable employment depended entirely on whether or not he had psychiatric intervention.
163 Dr Rene Dupuche, consultant physician, examined the plaintiff in May 2019.
164 On examination, the plaintiff advised his left hand was numb and he had restricted movement. He had aching that could radiate up the arm to the shoulder. His hand felt tight and there was discomfort in the hand. It was worse in cold weather and kept him awake at night.
165 Dr Dupuche diagnosed workplace traumatic crush and laceration injuries to the left hand involving the thumb and index finger, comminuted fracture of the left thumb, tendon injury presumed, nerve injury with sensory deficiency, left arm and shoulder pain, probably due to the disuse of the limb. She also diagnosed a Chronic Pain Syndrome, severe psychological issues, Major Depression and Anxiety, Traumatisation Syndrome, phobia, avoidance and probable Adjustment Disorder.
166 From a purely physical perspective, the plaintiff could return to work in modified or alternative duties, and within those duties, normal hours following a graduated introductory period. Those duties he could potentially perform were ones that did not require use to any significant degree of the left non-dominant hand. In such left-hand protective work, she believed the plaintiff could work normal hours following a suitable introductory period.
167 Dr Dupuche could not identify anything other than the plaintiff’s injury affecting recovery, but noted, however, his condition included a major psychological disorder, which was the dominant factor. In her view, his major psychological disorder was the major factor that precluded work at that time.
168 Dr Dupuche thought that the plaintiff’s incapacity for work was not likely to continue indefinitely, but she thought it unlikely he would have the capacity for suitable employment within the next six to twelve months, as she believed the plaintiff required high level psychiatric care. In her view, this should produce improvement, but over a longer time period.
169 Dr Dupuche considered, from a physical point of view, the plaintiff would be able to perform some of the suggested vocational options. However, the roles of shelf filler and packer were unsuitable, with car park attendant, service station attendant, sales assistant and checkout operator suitable. She considered the plaintiff had a capacity for full-time work from a physical perspective in those jobs following an introductory graduated period.
170 Dr Dupuche thought the plaintiff’s treatment was inadequate, in that he required upgraded analgesic regimes and, more particularly, high level psychiatric care and, also retraining.
171 In her view, the surveillance which she viewed did not accurately reflect the plaintiff’s situation. He was seen essentially walking down a street casually and unrestricted. As his injury was to his hand and he was only seen walking in the film, she did not think it accurately reflected the status of his left hand and his psychological condition. She had made contact with Dr D’Argent and had discussed with her the further management suggestions of further psychiatric care and increased analgesic regime.
172 Dr Timothy Wood, sport and exercise medicine physician, examined the plaintiff in May 2019.
173 The plaintiff then described numbness spreading from his thumb and index finger through the hand to the arm, associated with some tingling. He said his arm and hand felt tired and heavy.
174 On examination, there was some reduced sensation through the whole of the thumb, but particularly through the palmar aspect at the tip. There was some weakness of flexion and extension at the DIP, but no sign of any tendon deficiency, and the plaintiff could pose the thumb to all fingers. Grip strength was significantly reduced.
175 In Dr Wood’s opinion, the plaintiff had developed a maladaptive neurobiological pain response to the injury lacerations. He had also developed some secondary psychological issues.
176 Dr Wood thought the plaintiff had a capacity, from the physical perspective, to return to alternative duties and could work initially up to twenty hours a week for up to three to six months as he increased his work resilience and tolerance. The plaintiff’s employment should be restricted to activities that do not require significant use of the left hand.
177 Dr Wood noted the plaintiff had a number of obvious psychosocial factors that were likely to be impacting on his presentation.
178 Dr Wood thought the plaintiff was suitable for all of the suggested work duties, initially in a part-time capacity, so he could build up his work confidence and resilience. He noted some of the jobs required manual work but considered there was no physical reason why the plaintiff would be unable to undertake these.
179 Having been shown footage of the plaintiff in January and February 2019, Dr Wood thought that did not allow one to make significant deductions about his capacity to undertake suitable employment, but it was reassuring the plaintiff used his left arm normally, as far as the video footage was concerned. He considered the plaintiff needed to be reassured that it is safe and appropriate for him to return to modified pre-injury duties and that full-time work should be possible within three to six months of starting that work.
180 Dr Damian Ireland, hand surgeon, examined the plaintiff in February 2020.
181 The plaintiff volunteered his major problem was stress, depression, poor mood, lack of motivation and difficulty sleeping.
182 The plaintiff then complained of pain in the left thumb, which was constant and extended from the palmar surface of the thumb to the base of thumb. Occasionally, that pain radiated proximally into the mid forearm region and was aggravated by cold and eased by heat. He also complained of diminished sensation in the thumb and index finger, which was partial and involved the entire digit.
183 On occasion, the plaintiff developed forearm pain, which extended proximally into the left shoulder. This was episodic and caused by cold temperatures. He also complained of diminished function, but was not able to outline any specific loss, simply stating “I can’t pick up things”.
184 Mr Ireland noted the plaintiff certainly presented as a very depressed man, speaking in a monotone and without changing his expression.
185 Mr Ireland could find no clinical evidence to support the diagnosis of Complex Regional Pain Syndrome.
186 There was mild restricted motion at the interphalangeal joint. Sensation was measured by two point discrimination and was abnormal on the ulnar side of the pulp from the IP joint to the tip of the digit. There was mild dystrophy of the nail.
187 Mr Ireland diagnosed depression and mild left thumb dysfunction following open fracture of the distal phalanx and nail bed. He thought the plaintiff had made a full recovery from the finger injury and could find no clinical evidence to support the diagnosis of CRPS. He considered the prognosis with regard to the physical injuries was good and no further treatment was required.
188 Physically, Mr Ireland thought the plaintiff had the capacity for suitable work but was not able to return to his pre-injury work due to his stated fear and, in fact, phobia of the equipment which caused his injury.
189 Mr Ireland thought suitable employment would be difficult to find for this profoundly depressed worker who has limited English skills and limited education.
190 Having discussed the suggested jobs with the plaintiff, who advised he could not do them, Mr Ireland concluded, although there was a major discrepancy between the severity of the subjective symptoms of which the plaintiff complained and the presence of corresponding objective findings, in his opinion, there was no embellishment or symptoms or functional component, and he was not qualified to comment on the psychological component or its prognosis.
Psychiatric
191 Dr John King, psychiatrist, examined the plaintiff in November 2017.
192 Dr King then thought the plaintiff most likely suffered from a moderately severe Chronic Adjustment Disorder with Anxiety and Depressed Mood. That included some symptoms of traumatic anxiety, panic attacks and some conversion symptoms consequent upon the injury. He would have thought that this would have been obvious for some months and was surprised that surgeons at the Hospital did not seek psychiatric referral because of the availability of interpreters there that are needed.
193 Dr King then believed the plaintiff had no capacity to do any work from a psychiatric perspective.
194 Dr Felman, psychiatrist, saw the plaintiff in March 2018.
195 Dr Felman then diagnosed a major depressive episode with anxiety and features of traumatisation. The differential diagnosis was a Chronic Adjustment Disorder, although, in her opinion, the plaintiff’s symptoms were sufficient to reach a criterion for Major Depression.
196 Noting the plaintiff was having psychological treatment only, Dr Felman thought he required more assertive treatment commencing with consideration of an anti-depressant medication, and given the longevity of his symptoms, referral to a psychiatrist would also be recommended, particularly one from a similar cultural background.
197 Dr Felman then thought the plaintiff’s incapacity was still materially contributed to by the claimed injury. He then had no current capacity for pre-injury duties and hours at his usual or alternate workplace due to the severity of his ongoing psychological symptoms and phobic anxiety and avoidance of the factory setting. She thought he would currently not have any capacity for work based on the findings of a mental state examination and his self-reported symptoms severity; however, his involvement in studying English for up to 22.5 hours a week, if in fact he is effectively engaged and progressing, would suggest a potential capacity for work, the precise nature of which she was unsure given his limited education English, skill set and ongoing psychological symptoms, which would then preclude him from working on a factory floor. She also noted that the plaintiff’s Tramadol intake would likely impact on his capacity to operate heavy machinery at that time.
198 Dr Felman thought it was unclear if the plaintiff would ever be able to return to pre-injury duties and hours and that assessment would depend on both the progress of his psychological condition and physical one.
199 Dr Wendy Triggs, consultant psychiatrist, examined the plaintiff in May 2019.
200 The plaintiff advised he had attended 1600 hours of English courses since his arrival in Australia.
201 The plaintiff had difficulty sleeping due to a combination of physical pain and anxiety. He found he was tearful but tried not to cry in front of other people, and at times, he had periods of being quite anxious and panicked. He described feeling depressed, had poor concentration and he felt his energy and motivation were very low. He felt jumpy and irritable a lot of the time and felt very angry and he had “bad thoughts where he wanted to hit something.” At that stage, for the previous three weeks, he had been spending six hours a day doing an English course and felt that may have helped his mood.
202 Dr Triggs noted that the plaintiff spoke in a very soft voice and despite repeated requests, was seemingly unable to increase his voice from a whisper. His affect was quite flat, but not agitated.
203 Dr Triggs noted the plaintiff had been on an antidepressant medication of Cipramil; however, with little clinical affect. Lyrica, which had been added three months earlier, had improved his symptoms. His antidepressant had been changed to Duloxetine three weeks earlier and he had also noted a further improvement.
204 Dr Triggs diagnosed Major Depression and a Chronic Pain Disorder and she thought, if there was not an ongoing improvement in the plaintiff’s mood over the coming two to three months, he would warrant referral to a consultant psychiatrist. Ongoing psychological sessions should be aimed at increasing his psychological functioning.
205 Dr Triggs also noted that the plaintiff was speaking optimistically about what work options may be available to him in the future and thinking of doing a plumbing apprenticeship.
206 In Dr Triggs’ view, the plaintiff’s psychiatric illness was not in remission currently. He did not have a current work capacity. She thought he may gain a capacity for suitable employment over the coming six to twelve months. His pain symptoms should be less and his mood improved.
207 In Dr Triggs’ opinion, depending upon the plaintiff’s physical progress, he was likely to develop a psychiatric capacity for the suggested jobs over the next six to twelve months.
208 Dr Triggs thought the plaintiff would need to stay on the treatment for a prolonged period of time and if treatment ceased, his quality of life would deteriorate.
209 Dr Doherty, psychiatrist, examined the plaintiff in December 2019.
210 The plaintiff told Dr Doherty about the incident injury and subsequent treatment. He had had a lot of pain over the time since the incident injury, and it had been difficult and he felt sad about it. He also had had palpitations.
211 The plaintiff reported he still got troubled in cold weather with lots of pain, but otherwise coped better when the weather was hot. He took Panadeine Forte if he had pain or if his hand was numb.
212 The plaintiff described pain located in his left hand and going up his arm from his thumb to his shoulder, definitely when the weather is cold. He had limitations and could not hold anything with the left hand, even light things he drops. He said he could not use his left hand.
213 The plaintiff reported that that the injury had affected him a lot and changed his life. He said he was unable to look after himself, even now. His teeth were not good, he felt weak and he had body aches. He had had difficulty with constipation. He found it hard to sleep, thought a lot and had a lot on his mind. He said he was actually doing a lot of sport but cannot do such activities now. Pain is his main problem and if he feels that, he does not feel well and gets angry.
214 The plaintiff reported feeling depressed and depression was increasing and he did not know why. He had a lot of thoughts in his mind and could not concentrate and could not pray. He said he was thinking about his life and what would happen to his engagement. He was not feeling well about it and he said he was not sure what would happen.
215 In terms of current complaints and symptoms, the plaintiff described difficulty with sleep. He spent most of his time at home, although sometimes he had prayers at the mosque. Sometimes, he felt sad and anxious and went for a walk. He said he was very nervous when he went out.
216 The plaintiff quantified his pain as 5 to 6 out of 10. He told Dr Doherty about functional limitations and reduced tolerances due to pain and that he had difficulty cleaning his teeth. He said he was not able to lift anything with his left hand and said it was hard to hold it up. He quantified his mood at 3 top 4 out of 10 and told Dr Doherty that he was very down and very sad. He said he had anxiety, palpitations and short breathing, and did not have concentration or memory.
217 Dr Doherty had read Mr Dinh’s clinical notes, Dr D’Argent’s progress notes, the clinical notes of treating pain specialist, reports from Dr Lee, Dr Poppenbeek, Dr Dupuche and Dr Wood, the plaintiff’s first affidavit and Dr D’Argent’s recent medical certificate of 12 November 2019. Dr Doherty noted this certificate set out a capacity for suitable employment but no comment about mental health function.
218 On mental state examination, the plaintiff spoke with some English but used the interpreter. He was slow in answering questions and spoke in a soft polite voice and without tears, distress or anger. He was co-operative and engaged, and attentive in the interview setting. There was good eye contact, rapport was possible to be established, he did not appear overly suspicious, mistrustful or guarded and there were no abnormal movements.
219 Dr Doherty thought there had been a significant psychological reaction to the injury sustained. There had been a disproportionate response to the psychological stressor, there had been clinically significant symptoms causing distress requiring treatment.
220 A diagnosis of an Adjustment Disorder with Depressed and Anxious Mood was appropriate. Features of traumatisation were mild but present, and there was no diagnosable Post-Traumatic Stress Disorder. There was no pain-related psychiatric condition.
221 Dr Doherty considered the diagnosis of Major Depressive Disorder but, on balance, considered a diagnosis of an Adjustment Disorder better encapsulated the disorder and the reason for the disorder’s presence.
222 Dr Doherty thought the prognosis was not entirely favourable. The plaintiff had had an abnormal psychological reaction to the injury and that psychological reaction had been prolonged and severe and not responded to medication or psychological therapy. The outlook was not overly favourable. The reasons for the persistence of the mood downturn were not yet so clear that they could be dealt with. The plaintiff required further treatment, and the finalisation of legal proceedings would assist him to move forward.
223 Dr Doherty thought the plaintiff was not fit for pre-injury duties based on his psychiatric injuries. That condition would limit his capacity significantly to undertake his full duties and hours. The plaintiff had been sensitised to potential injury and could not currently work around or with a bandsaw. There were issues about mood, concentration and sleep, that would limit his capacity to undertake work.
224 Based on the reported symptoms, his examination presentation and a review of the supplied documents, Dr Doherty thought the psychological condition of the plaintiff will be a significant impediment to undertaking modified or alternative duties on a regular and consistent basis and he is, therefore, not fit for modified or alternative duties.
225 The plaintiff had told Dr Doherty there had been a catastrophic psychological reaction to the injury which had persisted and was unremitting. He reported a significant downturn in mood, some anxiety, sleep disturbance and difficulties with concentration.
226 Dr Doherty thought the plaintiff could probably not perform any of the jobs suggested in the 2018 and 2019 vocational reports based on his reported symptoms, examination presentation and assessment of the materials provided. “He undertake all the duties of the listed employment options considered suitable, at any hours, in the 2019 vocational report.”
227 Dr Doherty considered the current incapacity for work was likely to continue over the forthcoming year and should, by convention, be considered indefinite. The plaintiff probably cannot, based on those factors, undertake all the duties of the listed employment options. His psychiatric incapacity is principally due to the incident. The plaintiff is worried about the future of his engagement, and that contributes to his troubled mood.
228 In Dr Doherty’s view, the plaintiff did not present as a person with functional overlay or exaggeration. He was soft in presentation and flat in mood, without obvious embellishment; however, the intensity and level of the pain experienced and claimed functional limitations were much greater than would have been expected. It would have been expected that the adjustment to the injury would have taken place by now.
229 Dr Doherty concluded that, psychiatrically, the plaintiff had a capacity for retraining on a part-time hour basis but was not ready for job seeking at the present time.
Vocational evidence
230 Rachel Nguyen from Acumen Health, occupational injury management, provided a labour market analysis report and assessment in May 2019 following interview with the plaintiff.
231 Ms Nguyen identified the following as suitable based on the plaintiff’s employment history, education and transferrable skills:
·Packer – $900 a week
·Car park attendant – $1,007 gross per week
·Service station attendant - $900 gross per week.
232 Future options upon retraining were:
·Sales assistant - $850 gross per week
·Checkout operator – $824 gross per week.
233 In a review of December 2019, Ms Nguyen noted that Acumen had completed a job search of various sites and sent the links for three potentially suitable jobs to the plaintiff for consideration and application. The job roles were:
· 1st Year Mechanical Apprenticeship (Mobile Plant) - Toyota Material Handling,
· 2020 Apprenticeships – ANCA; and
· 1st year Mobile Plant Technology Apprentice - ATEL Employment Services.
234 Acumen also received from Chisholm all information for a pre-apprenticeship plumbing course commencing February 2020. It was noted the plaintiff was assisted with course application and completed Initial Assessment of the Maths and English.
Overview
Credit
235 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[43](2010) 31 VR 1 at paragraph [12]
236 Counsel for the defendant submitted there was a contrast between the surveillance film of 4 December 2019 and the plaintiff’s presentation to Dr Doherty that day, when he said he could not use his left hand. That overstatement was telling against the plaintiff’s credit, both in terms of his physical and psychiatric condition.
237 While it might be said the film does not show a huge amount, it does show someone who is able to use his left hand and has grossly exaggerated his complaints, and that is the benchmark against which the film is to be assessed.[44]
[44]T42
238 Counsel relied on the list of activities the plaintiff agreed he was shown doing on 4 December and 6 December 2019 in sharp contrast to his evidence he “can’t pick up things”.[45]
[45]T43
239 In response, counsel for the plaintiff submitted the plaintiff should be accepted as a credible witness because he gave his evidence in a frank and unequivocal manner and was a cooperative witness and attempted to speak in English.
240 There was no suggestion in the medical evidence that the was plaintiff consciously exaggerating his presentation to doctors. There was an absence of abnormal illness behaviour.[46]
[46]Mr Ireland, Dr Doherty
241 It was submitted that this case was unique in that every doctor, save for Dr Wood, who examined the plaintiff from a physical perspective, went out of their way to express genuine concern about the plaintiff’s psychological state and comment on the presence of depressive features that may impact on his work capacity.[47]
[47]Dr Davison, Dr Poppenbeek, Dr Dupuche and Mr Ireland
242 Further, every single defendant examiner, save for Dr Wood, having expressed their concern, do not treat the plaintiff as a malingerer, but as someone who has a profound and genuine psychiatric injury that disables him.
243 The defendant conducted extensive surveillance of the plaintiff between 2018 and 2020, totalling 46.5 hours, snippets of which were shown in the hearing. Various doctors have seen the 2018 and 2019 surveillance that was not shown during the hearing and made nothing of it.[48]
[48]Dr Poppenbeek, Dr Dupuche and Dr Wood
244 Further, the more recent surveillance film has not been shown to any doctor and is similar to that which was previously shown, in that the plaintiff was not filmed engaging in any significant activity. The film does not show him socialising or doing anything inconsistently with what he reported to doctors, having never presented himself as someone who is totally incapacitated.
245 It was submitted the surveillance was overwhelmingly of someone who does favour his right hand. Critically, the defendant had an opportunity to provide the film to Dr Doherty and Mr Ireland and did not do so.
246 While the defendant relied on a sentence in Dr Doherty’s report, where the plaintiff was said to have reported he does not use his left arm, the plaintiff denies that was what he said.
247 It was submitted the plaintiff presented as someone who presented himself as a person who wanted to improve himself pre injury. He was trying to improve his English and was doing courses at the time he was working for the employer, working evening shift and studying during the day.
248 It was submitted the plaintiff’s affidavits are open about matters to his detriment, including the fact he has tried to go out in the Afghani community and continues to go to the mosque and the shopping centre.
249 Further, the plaintiff’s evidence is supported by the unchallenged evidence of his uncle, and also supported by the evidence of treating medical and medico-legal practitioners, who do no report concerns about abnormal illness behaviour.
250 In those circumstances, the Court should, and can, accept what the plaintiff has said about his pain in evidence.
251 As I indicated during the hearing, I did not think there was any activity shown on the film that damages the plaintiff’s credit. He was not shown engaged in any vigorous, heavy or repetitive activity with his left hand, simply holding a mobile phone and texting at times with his left thumb and holding onto a pole on the train. At most, he pushed himself up from his train seat with his left hand, but this was a particularly difficult movement.
252 There was nothing shown on the film that in any way detracted from the views of the numerous medical witnesses as to the plaintiff’s genuineness.
253 In my view, the plaintiff was a truthful, credible witness, who made no attempt to embellish or exaggerate his physical or psychiatric complaints and restrictions. I accept that he is a highly motivated man, as evidenced by his English study while working full time with the employer.
Psychiatric injury
254 Although much of the hearing focused on the application under sub-paragraph (a), I will deal first with the psychiatric impairment as it was relied on principally by the plaintiff’s counsel. As the plaintiff volunteered to hand surgeon, Mr Ireland, on examination earlier this year, his major problem was stress, depression, poor mood, lack of motivation and difficulty sleeping.
255 While the plaintiff has yet to be treated by a psychiatrist, this treatment had been suggested by a number of practitioners at an earlier stage.[49]
[49]T57
256 The plaintiff initially had counselling with Stephanie Chu in 2017 and in May 2019, Mr Dinh took over his care.
257 Mr Dinh reports that the plaintiff continues to present with significant symptoms of depression, feeling chronically unmotivated, struggling to keep up with his personal hygiene at times, a loss of ability to enjoy anything, poor memory and concentration, and insomnia. The plaintiff also complains of ongoing somatic symptoms including headache.
258 Other examiners have been given and accepted a similar history from the plaintiff following mental state examination. The plaintiff’s complaints were also corroborated by his uncle whose evidence was not challenged.
259 General practitioner, Dr D’Argent, had been prescribing Cymbalta, 60 milligrams, which had been recently discontinued and replaced by Allegron, 10 milligrams daily, which it was planned to increase in the near future.
260 The consensus of medico-legal psychiatric opinion is the plaintiff presently suffers from a diagnosable psychiatric condition which requires urgent treatment.
261 A range of psychiatric diagnoses have been proffered.
262 In November 2017, Dr King thought the plaintiff most likely suffered from a moderately severe Chronic Adjustment Disorder with Anxiety and Depressed Mood. That included some symptoms of traumatic anxiety, panic attacks and some conversion symptoms consequent upon the injury.
263 In March 2018, Dr Felman diagnosed a major depressive episode with anxiety and features of traumatisation. The differential diagnosis was a Chronic Adjustment Disorder, although, in her opinion, the plaintiff’s symptoms were sufficient to reach a criterion for Major Depression.
264 In May 2019, Dr Triggs diagnosed Major Depression and a Chronic Pain Disorder. Later that year, Dr Doherty diagnosed an Adjustment Disorder with depressed and anxious mood with mild features of traumatisation that were mild but present. There was no diagnosable Post-Traumatic Stress Disorder and no pain-related psychiatric condition.
265 All practitioners who have examined the plaintiff for the purposes of his sub-paragraph (a) application also comment on the presence of psychiatric issues in the plaintiff’s presentation.[50]
[50]Mr Miller at paragraph [130], Dr Slesenger at paragraph [137], Dr Sullivan at paragraph [148], Dr Davison at paragraph [152], Dr Poppenbeek at paragraph [159], Dr Dupuche at paragraph [165], Dr Wood at paragraph [175] and Mr Ireland at paragraph [189]
266 As counsel for the plaintiff submitted, all four psychiatrists who have examined the plaintiff on the defendant’s behalf agreed that he continues to have a work-related psychiatric injury that prevents him from engaging in any work.
267 No appropriately qualified doctor considers the plaintiff has any psychiatric work capacity, relying on the comments made in this regard by Dr King, Dr Felman, Dr Triggs and Dr Doherty. All these practitioners consider the plaintiff continues to have a work-related psychiatric injury that prevents him engaging in any work.[51]
[51]T66
268 The view of the most recent medical examiner, Dr Doherty, that the incapacity for work is indefinite, is supported by treating psychologist, Mr Dinh. Given the whole flavour of Dr Doherty’s report, in my view the comment relied on by counsel for the defendant that the plaintiff “can” undertake the suggested the jobs is an error.
269 On the basis of this opinion, it was submitted the plaintiff does not have a capacity for work and has therefore suffered the requisite loss of 40 per cent whether he was considered as a labourer or a plumber - the latter having been submitted to be his likely employment had he not been injured.[52]
[52]T18; see paragraph [313] below
270 It was submitted this would be the situation whether the plaintiff was a labourer or a plumber.
271 Further, it was submitted the rehabilitation and retraining provision – ss(g) – has no application to a worker under twenty-six at the time of injury.
272 In this regard, counsel relied on the decision of Judge Millane in Capper v Munday Sales Pty Ltd & Anor:[53]
“I am unable to accept the defendants’ submission that, properly construed, paragraph (g) was intended to and does apply to this plaintiff. To do so would require the Court to ignore the clear intention of Parliament that the usual common law position prevails in respect to this category of worker by reintroducing, via this provision, among other things, the statutory formula for the assessment of the loss of earning capacity of a worker under the age of 26 at the time of injury.
Furthermore, I was not persuaded that, having enlivened the common law test as it relates to the assessment of loss of earning capacity, Parliament had also evinced an intention to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of 26 at the time of the injury.
What is needed is an understanding of the evidence that permits a finding one way or the other about whether the plaintiff has at the date of hearing a permanent loss of earning capacity of 40 per centum or more.
As to the usual common law position and its application to permanent loss of earning capacity productive of a financial loss of 40 per centum or more, I was invited by the plaintiff to adopt and apply the various principles articulated by His Honour Heydon, JA in State of New South Wales v Moss, a case involving the assessment of the loss of earning capacity of a plaintiff injured in a school accident at 14 years of age.”[54]
[53][2013] VCC 1015 at paragraphs [144]-[147]
[54]Capper v Munday Sales Pty Ltd (supra) at paragraphs [144]-[147]
273 Judge Kings, in Sanderson v Woolworths Limited,[55] took a similar approach.
[55][2019] VCC 106 at paragraph [15]
274 Accordingly, it was submitted in the present case, common law principles apply regarding probabilities and also the duty to mitigate. The onus at common law shifts to the defendant to show the plaintiff should do certain things to mitigate.[56]
[56]T68
275 It was submitted in this case, that the onus is not relevant. The plaintiff had endeavoured to retrain and had accepted all treatments that had been recommended. The defendant cannot complain the plaintiff’s general practitioner has not referred him for specialist psychiatric treatment nor can the plaintiff be criticised for following the medical advice, as he has.
276 Alternatively, it was submitted the Court should be satisfied the plaintiff has made reasonable attempts to retrain and rehabilitate.
·He has seen every doctor that he has been sent to.
·He has undergone invasive significant treatment.
·He has done every course the insurer has recommended, including applying for a pre-apprenticeship in plumbing. His engagement is beyond reasonable, in the sense that he willingly applied for a pre-apprenticeship, despite his evidence he could not complete the English or maths component of the written test.
·There are no retraining courses recommended by the insurer that the plaintiff has failed to do.
·He has been engaged with rehabilitation providers since January 2018 as part of his accepted WorkCover claim. The return-to-work documents set out that he has attended all appointments and with punctuality generally.
·His unchallenged evidence is that while all alternative duties were offered in early 2018, he did not return to work as he was scared, anxious and felt he was going to vomit, a not unreasonable response considering the traumatic accident.
·While he has not applied for any of the jobs suggested by the vocational assessor, that is reasonable, in light of Dr Doherty’s evidence that the plaintiff is not ready for job seeking at the present time and the plaintiff’s evidence that the jobs suggested were not jobs he felt he could physically or psychologically do.
277 According to their own documents, the jobs that Acumen suggests are: Apprentice Electrician, Apprentice Solar Electrician, 1st Year Mechanical Apprenticeship, 1st Year Mobile Plant Technology Apprentice, 1st Year Electrical Apprentice, Gardening Apprenticeship, Landscape Construction Apprenticeship, Locksmith Apprenticeship, 1st year Engineering Fitting and Machining Apprentice, Junior Factory Hand/Apprenticeship - Furniture Manufacturing.
278 Further, it was submitted it should be concluded both the plaintiff’s physical and psychological injuries are permanent, as the weight of medical evidence is the conditions are for the foreseeable future and could not be altered by any treatment.
279 In this regard, counsel for the plaintiff relied on the decision of the Court of Appeal in Cardoso v Staff Australia Payroll Services.[57] In that case, there was a psychological injury where the plaintiff had a relatively new treatment regime, including starting antidepressants a few weeks earlier and not having seen a psychologist to whom he had been recently referred.
[57][2019] VSCA 139
280 In that case, the Court held for an injury to be permanent, the relevant question was whether, on the balance of probabilities, the condition was going to last, in the sense of “likely to last for the foreseeable future”.[58] The Court reiterated by that this means that the condition “will last and not mend or repair – or at least not to any significant extent”.
[58]Paragraph [47]
281 Looking at the medical opinion, including as to the likely efficacy of the new treatment, the Court was of the view that permanency had been established.
282 It was submitted that in the present case, the weight of physical evidence is that the left hand is stable and there is no treatment that will alter the condition.[59] Neither Mr Miller or Mr Ireland refer to further surgery or treatment and there is no treatment proposed that said it will increase the plaintiff’s capacity or relieve symptoms.
[59]Ms Hedin and Dr Lee
283 Dr Doherty and Mr Dinh both consider the plaintiff’s psychological condition is permanent.
284 When Dr Doherty saw the plaintiff in December last year, he concluded the plaintiff had no capacity for any work and that that incapacity was indefinite. He thought the plaintiff had a condition that had not responded to medication or psychological therapy and the outlook was not overly favourable. While he said the plaintiff required further treatment, he maintained his opinion about permanency.
285 Mr Dinh held a similar view, concluding the reported impacts were likely to continue for the foreseeable future, as will the plaintiff’s complete incapacity for work, despite his recommendation the plaintiff would benefit from ongoing psychological treatment and a psychiatric evaluation.
286 Counsel for the plaintiff submitted that the totality of the evidence and opinions of the various psychiatrists was that the plaintiff’s psychiatric condition was permanent, even though there may be some variation in the future.[60] It is not a matter of going year by year, it has to be a permanent situation.[61]
[60]T69
[61]T77
Psychiatric
287 Counsel for the defendant submitted a psychiatric impairment is, by its very nature, a matter of self-import and the submissions made as to credit in relation to the subparagraph (a) application were highlighted in that respect.[62]
[62]T43
288 While Dr Doherty and Dr Triggs considered the plaintiff was incapacitated from a psychiatric perspective, it was submitted their opinion was based on the plaintiff’s self report.[63] Dr Doherty came to his conclusion on an acceptance of the plaintiff’s complaints made on examination.[64]
[63]T56
[64]T59
289 Dr Doherty also suggested further treatment and that there was some hope in terms of the finalisation of the legal proceedings and engagement with a psychiatrist.[65]
[65]T59
290 It was also submitted Dr Doherty’s opinion as to suitable employment was somewhat unclear, having set out in his report that he considered the plaintiff “could” undertake all the suitable duties in the May 2019 vocational report.[66]
[66]T58
291 It was submitted that Dr Triggs thought the plaintiff’s symptoms “should be less and his mood improved”, and “depending on his physical progress, the plaintiff was likely to develop a psychiatric capacity for these suitable employment options over the next six to twelve months”.[67]
[67]T57
292 Counsel for the defendant relied on Mr Dinh’s comments as to the benefits to the plaintiff of engaging with a psychiatrist.[68]
[68]T60
293 It was submitted in those circumstances, there was a “wide permanency issue in relation to the plaintiff’s psychiatric state and on that basis, the application under paragraph (c) failed”.[69]
[69]T60
294 In his reply, counsel for the defendant stressed Mr Dinh’s view and submitted the present case could be distinguished from Cardosa,[70] in the sense that the medical opinions, including the treating psychologist, point to some improvement.
[70](supra)
295 Counsel for the defendant conceded that in Capper[71] and Sanderson[72] it was held that subsection (g) does not apply to a worker under twenty-six.
[71](supra)
[72](supra)
296 It was submitted however, Judge Brookes, in Jarvis v Woolworths,[73] gave some support for the idea that ss(g) is “still alive” in these cases.
[73] [2012] VCC 1329
297 When considering loss of earning capacity for a worker under twenty-six, Judge Brookes stated, inter alia, “the issue of suitable employment is not relevant save by reference to s134AB(38)(g) of the Act”.[74]
[74]Paragraph [22](ii)
298 Counsel also relied on the decisions of Judge Bowman in Sharma v Chandler Personnel Services[75] and Judge Misso in Spiteri v Victorian WorkCover Authority.[76]It was submitted in both cases, while ss(f) does not apply to workers under twenty-six, it was held the assessment of loss of earning capacity is to be undertaken by reference to general common law principles; however, it was conceded in neither case was it held ss(g) does not apply.[77]
[75][2018] VCC 1658 at paragraph [69]
[76][2016] VCC 912
[77]T72
299 Counsel for the defendant submitted even if ss(g) does not apply, permanency is still required under ss(e). It was submitted that the cases on this section almost invariably involved people who had actually commenced an apprenticeship or done some pre-apprenticeship, which was not the case here.[78]
[78]T72
300 It was submitted that in this case, the plaintiff had the idea of becoming a plumber, which was different. It was just an aspiration, like being a rock star or neurosurgeon. There is nothing to show he had taken steps to do it.[79] Further, he was about to re-engage with his English training, and enjoyed it, and in those circumstances, permanency had not been established.[80]
[79]T75
[80]T76
Findings
301 I accept the preponderance of medical evidence that the plaintiff does not have a capacity for work on psychiatric grounds. Clearly, he satisfies the narrative test of “severe” in these circumstances.
302 Further, I am satisfied that the plaintiff has therefore suffered a 40 per cent loss of earning capacity according to common law principles – whether as a labourer or a plumber, the career path relied on by counsel for the plaintiff.
303 While counsel for the defendant submitted the plaintiff’s wish to be a plumber was aspirational, and a job in that field was beyond him intellectually, I accept had he not been injured and suffered the severe psychiatric reaction, it is likely the plaintiff would have followed this course. His dedication to English studies while working full time was the first step. Acumen considered a job of that nature was within the plaintiff’s intellectual capacity and suggested training for that role.
304 In my view, the plaintiff is not required to discharge the onus as to rehabilitation and retraining as I find that ss(g) does not apply to a worker under twenty-six.
305 In any event, I am satisfied the plaintiff has taken all steps that are appropriate in this regard, as described in detail by counsel for the plaintiff, and he will continue to suffer the 40 per cent loss into the foreseeable future.
306 Even if the plaintiff becomes more proficient in English, following further study, his psychiatric issues are likely to continue and adversely impact on his capacity for work.
307 Further, I accept the plaintiff’s psychiatric impairment is permanent. Insofar as that impairment depends on the progress of his physical condition, I am satisfied that condition is also permanent, with there being no further treatment suggested for his left hand injury which is stable.
308 Accordingly, I grant leave to bring proceedings for damages for both pain and suffering and loss of earning capacity in relation to the subparagraph (c) claim.
309 Having made this finding, it is not necessary for me to consider further the application pursuant to ss(a); however, as both parties’ submissions focussed largely on the left hand injury, I have also taken into account the matters set out below which are also relevant to the ss(c) application, in particular issues of retraining and the basis upon which to assess the plaintiff’s loss of earnings claim.
Left hand
310 Counsel for the plaintiff submitted that the evidence as to the nature and extent of the physical injury is consistent and establishes a “complex crush injury of the left thumb and index finger with comminuted distal phalanx fracture”.
311 The plaintiff has had extensive treatment, including the initial surgery, extensive and continuing hand therapy, a Ketamine infusion with a week’s hospitalisation in October last year, a stellate ganglion block in December last year, drug therapy, including Panadeine Forte, Panadeine, prednisolone and Lyrica, and referral to pain management with Dr Lee, who has involved other specialists.
312 The plaintiff had a number of objective signs including abnormal sensation of the thumb on two point discrimination as found by Mr Ireland, sensation measurements by Ms Hedin, chronic in-growing nail of the left index finger, reduced hand grip found by examiners and measured by Ms Hedin, reduced hand function with, in effect, gripping by using the middle and ring finger rather than the index and thumb, as was shown by the plaintiff in the witness box.[81]
[81]See T31-T32; T64
313 While a number of doctors discuss CRPS, with there being some temperature difference, the best that can describe the condition is Dr Lee, who described it as “neuropathic pain with spectrum of CRPS”.
314 It was submitted the above-mentioned observations were objective and consistent in a person in respect of whom the only comments regarding his presentation are that he is not exaggerating or functional.[82]
[82]Dr Doherty, Mr Ireland
315 Treating the plaintiff’s injury as the loss of a twenty-five-year-old of his left hand function as described, with associated chronic pain and who is said to be a manual worker, is a serious injury in respect of pain and suffering.
316 Counsel for the plaintiff submitted the plaintiff has no work capacity. In any employment, he would need bilateral hand function, be it as a labourer, plumber or similar. No one suggests he will do non-labouring work. The restrictions he has faced, and faces, constitute a serious injury flowing from paragraph (a), particularly if it is accepted he did intend to study to obtain enough English to do a trade. It was submitted his residual earning capacity is either nil or very limited, and that satisfies the test on common law principles.[83]
[83]T65
317 It was submitted “without injury” earnings would be those of a plumber. The plaintiff has taken real steps towards achieving this trade by studying this full time during the day while working at night. His evidence is he intended to be a plumber once he improved his English, as he said to Dr Triggs in March 2018, thus it is not recent invention. This is supported by the evidence of Dr Richard Sullivan and Dr Slesenger and the treating general practitioner.
318 Counsel for the defendant relied on Dr Lee’s recent findings of minimal problems and also Mr Ireland’s comments[84] and his view the plaintiff could do all the suggested jobs on a full-time basis. The plaintiff has a retained work capacity according to Dr Poppenbeek and Dr Davison, albeit at a relatively early stage.[85]
[84]T44
[85]T45
319 Dr Dupuche thought the plaintiff had capacity for some of the suggested jobs.[86] Dr Wood had a similar view of the plaintiff from a physical perspective, finding he was able to start at about twenty hours a week and increase, based on resilience and tolerance.[87]
[86]T45
[87]T46
320 It was submitted Dr D’Argent failed to separate the physical from the psychiatric contribution to the plaintiff’s incapacity for work.[88]
[88]T47
321 Dr Slesenger, while saying the plaintiff was totally incapacitated, listed a number of restrictions on suitable employment.[89]
[89]T48
322 In all, it was submitted, on a physical basis, the plaintiff’s impairment was not “serious”.[90]
[90]T48
323 In terms of treatment, counsel accepted the need for ongoing medication, but “surgery had come and gone” and it was submitted, as Mr Ireland would have it, the condition has largely resolved.[91]
[91]T49
324 It was submitted the plaintiff was to be assessed as a labourer as there was no evidence he was ever going to be capable of being a plumber, with four years’ education and limited English and maths.[92] Those were impediments the plaintiff was always going to have in becoming a plumber, and there was simply no evidence to satisfy the Court that he was ever going to be capable of working in this trade. He had taken no steps, apart from English, towards a plumbing apprenticeship. When it was suggested learning English was the first step in this process, it was submitted this situation had to be contrasted to other cases where a plaintiff was already involved in an apprenticeship at the time of injury.[93]
[92]T49
[93]T50; Sharma v Chandler Personnel Services (supra)
325 Counsel for the defendant submitted the “without injury” earnings figure was to be measured with the plaintiff working as a labourer – $840.98 per week – 60 per cent thereof is $504. It was submitted the plaintiff would not suffer the requisite loss working in any of the jobs suggested by Acumen.[94]
[94]T51
326 Given the body of medical material suggesting the plaintiff can graduate to full-time work in the shorter term, it was submitted the Court could not be satisfied that the plaintiff would have a permanent 40 per cent loss.[95]
[95]T51
327 Further, counsel for the defendant submitted there was an onus on the plaintiff pursuant to ss(g) to rehabilitate and retrain This submission was based on medical opinion that the plaintiff could return to full-time work. Even if the plaintiff is under twenty-six, it does not affect the assessment of “without injury” earnings and the requirement to show permanency.[96]
[96]T53
328 In terms of retraining, a further point relied on by the defendant was the plaintiff was actually enjoying English, which was contrasted with his most recent affidavit where he described the difficulties he had with study. He had also told Diane, his hand therapist, how he enjoyed the course, as she reported in March this year. Further, the plaintiff is about to resume English as soon as he can.[97] In any event, it was submitted that the plaintiff’s English was reasonable and would be improved by further study. Therefore, the application under (a), under both heads, should fail.[98]
[97]T55
[98]T56
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