Mostakim v Victorian WorkCover Authority
[2024] VCC 980
•5 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02643
| KARIM MOSTAKIM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 January 2024 | |
DATE OF JUDGMENT: | 5 July 2024 | |
CASE MAY BE CITED AS: | Mostakim v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 980 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – injury to right hand – psychological injury – pain and suffering – pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Stevens v DP WorldMelbourne Ltd [2022] VSCA 285; Milonas v Monash Health [2024] VSCA 57; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323
Judgment: Leave granted to commence common law proceedings for pain and suffering and loss of earning capacity damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr R Phelps | LHD Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
Introduction
1The plaintiff, Mr Karim Mostakim (“Mr Mostakim”), seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (“the Act”) to bring common law proceedings for “pain and suffering” and “pecuniary loss” damages within the meaning of s 325(1) of the Act.
2Mr Mostakim alleges that he sustained injury on 19 August 2019 whilst working for Estia Health Bentleigh (“the employer”).
3Mr Mostakim relies upon paragraphs (a) and (c) in the definition of “serious injury” under s 325(1) of the Act.
4The paragraph (a) injury relied upon was an ulnar collateral ligament tear requiring surgical repair and chronic pain condition of the right thumb.[1] The relevant body function is the right hand.
[1]Transcript (“T”) 3, Line/s (“L”) 28-31 – T4, L1-4.
5The paragraph (c) injury relied upon was a Mixed or Major Depressive and Anxiety Disorder and an Adjustment Disorder and an acute stress reaction which led to Mr Mostakim’s separation from his wife.[2]
[2]T3, L10-14.
6The legal principles are well known and not in dispute in this case.
7In relation to paragraph (a), Mr Mostakim must establish, on the balance of probabilities, that the impairment consequences of the right hand injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”).[3]
[3]See s325(2)(b) and s325(2)(c) of the Act.
8In relation to paragraph (c), the consequences of the psychiatric injury must be severe. The consequences of an injury are “severe” if, when judged by comparison with other cases in the range of possible impairments or losses, they can be fairly described as “very considerable” and certainly more than “significant” or “marked”.[4] The word “severe” has been held to mean something stronger in terms of significance or gravity than “serious”.[5]
[4] Section 325 (2)(d) of the Act.
[5]Mobilio v Balliotis [1998] 3 VR 833 at 846.
9For Mr Mostakim to succeed in his claim for loss of earning capacity, he must establish:
(a) his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”); and
(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s 325(2)(f) of the Act (the current “loss of earning capacity” threshold); and
(c) after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s 325(2)(e)(ii) of the Act (“permanent loss of earning capacity” threshold).
The hearing
10The application proceeded in the usual way on 23 and 24 January 2024. Mr Andrew Ingram KC and Mr Rohan Phelps of Counsel appeared on behalf of Mr Mostakim. Mr Clyde Miles appeared on behalf of the Victorian WorkCover Authority (“the defendant”).
11Mr Mostakim tendered affidavits, medical and pharmacy records, radiology, and medico-legal reports and provided the Court with a chronology and a summary of taxation returns as aide-memoires.
12The defendant tendered video surveillance, medico-legal reports, medical records, and photographs from Mr Mostakim’s Facebook page.
13Only Mr Mostakim gave oral evidence and was cross-examined.
14There were a number of unusual aspects of Mr Mostakim’s evidence which are discussed in detail below.
15I have considered all the tendered evidence, the aide-memoires and Mr Mostakim’s oral evidence together with the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
What are the issues in dispute?
16The defendant submitted the following issues were in dispute:[6]
· Credit
· Disentanglement – between the physical and psychiatric aspects of the claim
· Range – particularly in relation to the psychiatric injury
· Capacity – the defendant submitted Mr Mostakim had a full-time or near full-time capacity for work.
[6]T19, L9-17.
17It became apparent in the course of the hearing, that the defendant also wished to ventilate causation issues.
Summary
18Having considered all the evidence, I am satisfied that Mr Mostakim has established that his psychiatric state is related to the work incident and that it prevents him from working in any form.
19For the reasons that follow, I find that the impairment consequences of his psychiatric state are “severe” and satisfy the narrative test and the tests in s 325 (2)(e)(i) and (ii) of the Act.
20Therefore, Mr Mostakim has established an entitlement to commence a proceeding for loss of earning capacity damages.
21Further, as a consequence, he also has leave to commence proceedings for pain and suffering damages.[7]
[7]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
22Having found that Mr Mostakim is successful in relation to sub-paragraph (c) of the definition of “serious injury,” it is not necessary for the Court to determine his application under sub-paragraph (a) of the definition. I will however refer to aspects of the sub-paragraph (a) claim for context.
Background
23Mr Mostakim is currently 42 years old.[8] He is separated from his wife. They have two children aged approximately seven and five years old.
[8]Plaintiff’s Exhibit P1, Plaintiff’s Court Book (“PCB”) 9, paragraphs 2 and 5.
24Mr Mostakim was born in Fes, Morocco. He left school when aged 16 years and worked as a tour guide.[9]
[9]Plaintiff’s Exhibit P1, PCB 9, paragraph 5-6.
25Whilst working as a guide, he met his wife in 2008. They married in 2010 and they migrated to Australia in 2012.[10]
[10]Plaintiff’s Exhibit P1, PCB 9, paragraph 6.
26Upon arriving in Australia, Mr Mostakim worked as a sales assistant in a Moroccan furniture store for four years.[11]
[11]Plaintiff’s Exhibit P1, PCB 9, paragraph 7.
27In 2016, he obtained a Certificate IV in Aged Care and Disability.[12] He commenced with the employer in May 2016 as a personal care attendant and generally worked from 7am-3pm, five days a week.[13]
[12]Plaintiff’s Exhibit P1, PCB 9, paragraph 8.
[13]Plaintiff’s Exhibit P1, PCB 10, paragraphs 10-12.
28In July 2019, Mr Mostakim started working in a second job with CareChoice. His duties involved providing companionship to a client who had suffered a stroke.
29Mr Mostakim continued to work for both the employer and CareChoice. By August 2019 he was working 40-50 hours a week spread over six days.[14]
[14]Plaintiff’s Exhibit P1, PCB 10, paragraph 16.
The work incident
30On 19 August 2019, Mr Mostakim says the employer directed him to remove various pieces of hard rubbish from a cage at the employer’s premises and put the rubbish into a skip.[15]
[15]Plaintiff’s Exhibit P1, PCB 10, paragraph 19-21.
31Mr Mostakim asserts that he and a colleague were attempting to put a pot plant weighing approximately 45 kilograms into the skip when the pot plant bounced back onto his right thumb hyperextending it.
32Mr Mostakim says that he experienced severe pain in his thumb and that he fell to the ground screaming. He asserts that he remained on the ground for approximately 30 minutes. Mr Mostakim said he reported the injury and was provided with an ice bag.
33On the day following the work incident he says he was placed in the kitchen to undertake kitchen duties
Credit and reliability
34It has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[16] This case is no exception. Mr Mostakim’s credit and reliability are central to the determination of the application. There was a sustained attack on his credit.
[16]See for example Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243.
35A plaintiff’s credibility is relevant to the question of whether his evidence should be accepted. It can also be relevant to the reliability of the medical evidence presented because the opinions of doctors can be dependent on the credibility and reliability of the history given to them by a plaintiff. This is particularly so in respect of a psychological injury.
Facebook material/memory
36Mr Mostakim was cross-examined about photos posted to his Facebook profile in 2022 and 2023.[17]
[17]T96-113.
37Mr Mostakim was able to recall, with clarity, the location of the majority of the photos. He explained the context of the photo (such as why it was taken or what event he was attending) and provided a timeframe of when the photo was taken. His evidence on such issues was clear and succinct.[18]
[18]See: T98, L13-14; T21, L21-27; T99, L6-9; T101, L2-10 and L17-21.
38The defendant submitted that such recall was at odds with Mr Mostakim’s evidence that he suffered from poor memory since the injury.[19] The Court’s attention was drawn to Mr Mostakim’s attendance upon Dr Turnbull on 5 December 2020 at which time he could not recall his own age.[20]
[19]T117, L14-16.
[20]T116, L9-15, Plaintiff’s Exhibit P11, PCB 73.
39Most of the photos were taken in the years prior to his injury and showed him attending events and travelling with his former wife and children. Mr Mostakim explained that he re-posted these photos to his Facebook profile in 2022 and 2023 as he was bored and missed his old life.[21] I accept that explanation.
[21]T109, L8-10.
Unusual aspects of Mr Mostakim’s evidence
40There were a number of unusual, if not bizarre, aspects to Mr Mostakim’s evidence.
41Examples of this unusual behaviour were:
· In cross-examination, when confronted with clinical records which contradicted parts of his evidence, his explanations for the apparent contradictions were nonsensical. In some instances, he denied the veracity of the records. At other times he alleged some sort of WorkCover conspiracy.
· He denied any pre-existing psychiatric illness and said that his mental health and relationship with his wife had only declined after the workplace injury. Mr Mostakim’s first affidavit referred to a particular incident in January 2020 when he drank a spoonful of turpentine after a fight with his wife (“the turpentine incident”).[22] However, clinical notes recorded that the turpentine incident in fact occurred in January 2017, a number of years before the workplace injury.[23] According to the clinical notes, a Mental Health Care Plan was prepared and a referral was made to a clinical psychologist, Mr Carlo Saba. The defendant tendered the referral letter.[24] Mr Mostakim said in cross-examination that he attended Mr Saba in 2017 for marriage counselling.[25] There was no material tendered from Mr Saba.
· In cross-examination, it was put to Mr Mostakim that he was asked by Dr Ko, his General Practitioner (“GP”), at the Bentleigh Medical Centre in 2022 to find a new clinic after a dispute. Mr Mostakim denied this and said it was his idea to find a new doctor as he had moved and was living two hours away from the clinic.[26] Mr Mostakim was cross-examined about the content of a clinical note dated 17 June 2022, recorded by a receptionist. According to the note, Mr Mostakim attended the clinic and demanded to see Dr Ko immediately, despite not having an appointment.[27] He was rude to reception staff and pushed through the reception area and started to yell at Dr Ko when he came to collect another patient.[28] Mr Mostakim denied behaving in such a way. When asked why the receptionist had made such a note, he asserted that the insurer told the GP to tell the receptionist to write such a record.[29]
[22]Plaintiff’s Exhibit P1, PCB 12, paragraph 38.
[23]Defendant’s Exhibit D15, Clinical notes of attendances on 11 January 2017 and 12 January 2017.
[24]Defendant’s Exhibit D2, Defendant’s Court Book (“DCB”) 6 – the referral letter referred to relationship issues.
[25]T27, L18-31 and T28.
[26]T81, L6-22 – T82, L1-5.
[27]T81, L22-31 – T82, L6-10.
[28]T82, L24-31.
[29]T82, L13-23.
42Mr Mostakim asserted that his GP and the receptionist had fabricated events, and that his GP falsified the clinical notes and failed to record the prescription of medications.
43These are serious allegations made by Mr Mostakim against his GP and his staff which could result in disciplinary action. The allegations have not been put to the GP or the medical staff, so they have not had the opportunity to respond.
44There was no evidence that Mr Mostakim had been diagnosed with a psychological or psychiatric condition or had received any form of psychological or psychiatric treatment before 19 August 2019, apart from the limited information in clinical notes referred to above and Mr Mostakim’s admission about attending Mr Saba in 2017.
Mr Mostakim’s Submissions on credit
45Senior Counsel for the plaintiff made the following submissions:
· it was acceptable to lie to treating doctors in certain circumstances;[30]
· the surveillance footage demonstrated “conclusively and compellingly” that Mr Mostakim was a man with persisting dysfunction in his right hand, many years after the injury and surgery;[31]
· Mr Mostakim was psychiatrically disturbed and his evidence as to alleged WorkCover conspiracies reflected his psychiatric state;[32]
· Mr Mostakim presented in Court as someone who was under the influence of a variety of strong medications and it was clear he was drowsy and not thinking through his answers.[33]
[30]T192, L16-22.
[31]T189, L17-19.
[32]T194, L1-17.
[33]T195, L1-12.
VWA submissions on Credit
46The defendant submitted:
· the surveillance speaks for itself;
· if Mr Mostakim was prepared to lie to his treating practitioners, then he would also be prepared to lie to the Court;[34]
· Mr Mostakim’s repeated suggestions of cover-ups and conspiracies by his employer and WorkCover were simply implausible.[35]
[34]T187, L25-27.
[35]T188, L11-29.
Findings on credit and reliability
47I have borne in mind the Court’s obligation to consider all of the evidence, particularly where there may be an issue as to a plaintiff’s psychiatric state and how that state may impact upon the quality of the plaintiff’s evidence.[36]
[36]As discussed in Stevens v DP WorldMelbourne Ltd [2022] VSCA 285 at paragraph 45 and in Milonas v Monash Health [2024] VSCA 57 at paragraphs [72]-[82].
48In that regard, I have carefully considered all the tendered medical material, which is discussed in depth below, to ascertain whether any medical practitioner addressed this issue. None did directly.
49At its highest the medical evidence on this point was provided by Dr Mohtaji (GP) of the Fawkner Medical Centre when he noted in April 2023 that Mr Mostakim struggled with concentration and completing tasks due to his anxiety and depression.[37]
[37]Plaintiff’s Exhibit P2, PCB 25-26.
50The defendant tendered two tranches of video surveillance.[38] The first tranche comprised footage recorded on 27 July 2023 and totalled 9 minutes and 7 seconds. The second tranche was a compilation of footage taken on 12 December 2023 and 10 December 2023 and totalled 6 minutes and 20 seconds.
[38]Defendant’s Exhibit D1.
51The surveillance footage did not demonstrate Mr Mostakim undertaking any activity that he had denied being capable of undertaking. There was nothing in the video that could be described as heavy activity.
52The surveillance was not demonstrative. At its highest it showed the plaintiff carrying what appeared to be a juice pack, carrying paper coffee cups, and lighting cigarettes.
53I was concerned by the fact that during cross-examination, Mr Mostakim said that he had lied to his doctors, regarding the condition of his thumb, in order to return to work undertaking full-time hours with the employer.
54These matters suggest that Mr Mostakim is prepared either to lie to his treaters for financial gain, or to reconstruct events in order to explain his presentation to doctors.
55It was submitted that Mr Mostakim was affected by his medications when giving evidence.
56Mr Mostakim gave evidence over two days. During cross-examination, the plaintiff was able to provide detailed and rapid responses to queries regarding the Facebook photographs.
57Senior Counsel for the plaintiff did not raise any concerns with the Court about Mr Mostakim’s capacity to give evidence whilst Mr Mostakim was in the witness box. The first time this issue was raised was in closing submissions.
58As discussed earlier, whilst Mr Mostakim’s evidence was at times bizarre, he appeared capable of understanding the questions put to him. He appeared to comprehend the nature of the proceeding he was involved in. At no stage did he appear confused as to his location or the subject matter being discussed.
59Further, there was no medical evidence to suggest that Mr Mostakim’s capacity to give evidence was compromised in any way.
60I reject the submission that Mr Mostakim’s demeanour in Court was impacted by his medication use to the extent that it impacted on the quality of his evidence.
61I reject the submission made on Mr Mostakim’s behalf that the surveillance footage was conclusive or provided compelling evidence of ongoing physical dysfunction. It did not show any persisting dysfunction in the right hand. It was, in fact, neutral and did not support the submissions made by either party. The surveillance did not assist the Court in its consideration of the sub-paragraph (c) claim.
62I reject the submission made on Mr Mostakim’s behalf that it was acceptable to lie to doctors. This submission should not have been made.
63It was submitted that Mr Mostakim’s evidence as to alleged WorkCover conspiracies reflected his psychiatric state. Whilst at first blush this seems to be a reasonable submission, there was no medical evidence to this effect. I therefore do not accept this submission, as there is no evidentiary foundation to support it.
64After reviewing all the material, I find that Mr Mostakim was an unreliable witness for the following reasons:
· When confronted with contradictory clinical records, his attempts to explain the discrepancies were concerning;
· His responses to questions about his Facebook posts were careful and measured and were significantly different from his other evidence and his presentations to doctors such as Dr Turnbull, Mr Asiad, and Dr Thomas;
· His evidence regarding WorkCover conspiracies was nonsensical;
· He admitted that he had lied to his treating doctors for financial gain.
65His unreliability may or may not be related to his psychiatric state. It is not possible to reach a definitive conclusion about this.
66Given the above findings, I have viewed Mr Mostakim’s evidence as to the ongoing impairment consequences of the work-incident-related injuries with caution, and I will only accept the asserted consequences if there is objective medical evidence to support them.
Post-injury
67Mr Mostakim continued to work his pre-injury hours in the employer’s kitchen and continued his work with CareChoice.[39] He says he had pain in his hand and complained to his manager approximately two weeks after the work incident.
[39]Plaintiff’s Exhibit P1, PCB 12, paragraphs 33-34.
68Mr Mostakim deposed he continued to work as he felt financial pressure to support his family in Australia and Morocco.[40]
[40] Plaintiff’s Exhibit P1, PCB 12, paragraph 36.
69Mr Mostakim first attended his GP in mid-to-late September 2019, a number of weeks after the work incident.
70Mr Mostakim deposed that he felt anxious, depressed after the injury, and began to fight with his wife. He left the family home in late 2019.[41]
[41]Plaintiff’s Exhibit P1, PCB 12, paragraph 40.
71On 15 January 2020, Mr Mostakim underwent a UCL right thumb metacarpophalangeal (“MP”) joint repair performed by Mr David McCombe, treating hand surgeon.[42] Thereafter, he attended Mr Yoshi Goad for hand physiotherapy.
[42]Plaintiff’s Exhibit P5, PCB 104.
72In March 2020, he returned to work on reduced hours performing light duties with the employer and resumed his second job with CareChoice.
73Throughout 2020, Mr Mostakim’s mental health deteriorated due to a range of factors which included physical pain, his marital breakdown, his mother being in poor health in Morocco and isolation due to COVID-19 lockdowns.[43] He also asserts he was pushed by the employer to carry out duties beyond his capacity at work.[44]
[43]Plaintiff’s Exhibit P1, PCB 13, paragraph 48.
[44]Plaintiff’s Exhibit P1, PCB 13, paragraphs 51.
74In May 2020, he commenced attending a psychologist.[45]
[45]Defendant’s Exhibit D4, DCB 18-19, and Plaintiff’s Exhibit P1, PCB 13, paragraphs 48-49.
75In the period May to July 2020, Mr Mostakim presented to a number of hospital emergency departments reporting psychiatric distress.[46]
[46]Plaintiff’s Exhibit D17, DCB 144-145 and Defendant’s Exhibit D5, DCB 33 and 36. There are discrepancies between Mr Mostakim’s evidence as to the dates upon which he attended hospitals and what the records show. I have relied upon the hospital records as much as possible; however, the precise attendance dates are unclear even within the medical records.
76On 8 July 2020, he was admitted to the South Eastern Private Hospital and remained there as a psychiatric inpatient until 8 August 2020.[47] After his discharge, Mr Mostakim commenced attending a new psychologist.[48]
[47]Defendant’s Exhibit D7, DCB 41 and 44.
[48]Defendant’s Exhibit D9, DCB 45.
77After his discharge, Mr Mostakim returned to work with the employer and gradually increased his hours and duties.
78On 9 October 2020, he worked one shift of pre-injury duties and hours but reported a flare-up of hand pain to his GP.[49]
[49]Plaintiff’s Exhibit P1, PCB 14, paragraph 60.
79On 10 October 2020, Mr Mostakim flew to Morocco to see his mother who was in poor health.[50]
[50]Plaintiff’s Exhibit P1, PCB 14, paragraph 60.
80Mr Mostakim remained out of the country until he returned to Australia on 9 April 2022. Upon his return, he again resumed work for the employer.
81By May 2022, he had returned to full-time, pre-injury duties.[51] Mr Mostakim deposed that he struggled with such work and resigned from the employer on 26 August 2022.[52]
[51]Plaintiff’s Exhibit P1, PCB 15, paragraph 68.
[52]Plaintiff’s Exhibit P1, PCB 15, paragraph 72.
82Apart from a short period of work in mid-2023 of four hours a week over three months, Mr Mostakim has not worked in any capacity since August 2022.
Current symptoms
83Mr Mostakim deposed to a range of pain and suffering consequences, including:
· Fluctuating pain in the right thumb, varying from tolerable to unbearable “most of each day” which can radiate up to his right shoulder;[53]
· Inability to return to employment due to physical pain and mental health issues;[54]
· Poor mental health, including constant anxiety and stress, monthly panic attacks and suicidal thoughts;[55] and
· Reliance on medications.[56]
[53]Plaintiff’s Exhibit P1, PCB 16, paragraph 82 and PCB 18, paragraphs 4-5.
[54]Plaintiff’s Exhibit P1, PCB 15, paragraph 75; PCB 16, paragraph 88; PCB 17, paragraphs 89-90 and PCB 19, paragraphs 15-16.
[55]Plaintiff’s Exhibit P1, PCB 16, paragraphs 83-84 and PCB 18, paragraph 6.
[56]Plaintiff’s Exhibit P1, PCB 19, paragraphs 12-13.
Current medication
84At the time of the hearing, Mr Mostakim was taking the following medication daily prescribed by his GP:
· Paroxetine (antidepressant) 20 mg x 2
· Bromazepam (benzodiazepine) 6 mgs x 3
· Diazepam (benzodiazepine) 5 mgs x 3
· Mirtazapine (antidepressant) 30 mg x 1
· Quetiapine (anti-psychotic) 150 mg x 2
· Endone (opioid pain killer) 5 mg x 2
· Ibuprofen (nonsteroidal anti-inflammatory) 200mg x 2.
85Whilst it was not specifically stated, it is reasonable to assume that the first five of the above medications were prescribed in relation to psychiatric issues and the latter to physical issues.
86Mr Mostakim said in his second affidavit that he had used the illicit drug “Ice” for a few months in 2023 to try and manage his pain but he stopped taking it in July 2023 as it was not helping him, and his GP had recommended that he stop taking it.
Plaintiff’s medical evidence
87The plaintiff tendered radiological reports, together with reports from treating GPs, treating surgeon, treating physiotherapist, treating psychologist and medico-legal reports from an orthopaedic surgeon, an occupational physician, and two psychiatrists.
88Whilst the plaintiff has been an inpatient in a psychiatric hospital, no reports from any treating psychiatrist were tendered.
Radiology
89Given my findings on s325(1)(c) of the Act, it is not necessary to consider the radiology.
Treating doctors
Dr Youngsuk Ko (GP)
90The plaintiff tendered a bundle of reports and certificates from Dr Ko.[57] Dr Ko was Mr Mostakim’s regular GP at the Bentleigh Medical Centre. He was under Dr Ko’s care at the time of the workplace injury and continued attending the clinic until approximately mid-2022.
[57]Plaintiff’s Exhibit P3, PCB 32, 36, 43-44 and 46.
91Dr Ko confirmed that Mr Mostakim was suffering from severe depression and anxiety since 2020.
92Dr Ko did not opine on issues such as work capacity or disentanglement. He has not treated Mr Mostakim for two years now, so his reports are of limited assistance.
Dr Ali Mohtaji (GP)
93Mr Mostakim tendered letters and reports from Dr Mohtaji, GP, dated 15 September 2022, 9 November 2022, 23 November 2022, 14 April 2023 and 12 December 2023.[58]
[58]Plaintiff’s Exhibit P2, PCB 22-26, 30-31 and 33-35.
94Dr Mohtaji has been Mr Mostakim’s treating GP since approximately August 2022.
95In a letter dated 15 September 2022 Dr Mohtaji confirmed that Mr Mostakim had been suffering from depression and anxiety since 2020. He was hospitalised in 2020 and was on psychiatric medication and had been referred to a psychologist.[59]
[59]Plaintiff’s Exhibit P2, PCB 33.
96In a further letter dated 14 April 2023 Dr Mohtaji recorded a diagnosis of Borderline Personality Disorder, Generalised Anxiety Disorder and Major Depressive Disorder (recurrent and severe).[60] The letter recorded that Mr Mostakim had been admitted to hospital on numerous occasions for such issues, including an admission to South Eastern Hospital.[61]
[60]Plaintiff’s Exhibit P2, PCB 25- 26.
[61]The reference to a 12-month admission is incorrect and may have been a typographical error as other tendered material suggested that Mr Mostakim was an inpatient at South Eastern Private Hospital between 8 July 2020 – 8 August 2020, see Plaintiff’s Exhibit P6, PCB 45.
97The letter confirmed that Mr Mostakim struggled with concentration and completing tasks due to his anxiety and depression. The letter concluded Mr Mostakim could not work or study full-time due to his mental and physical illnesses and that it was unlikely he would return to any form of employment in the future.[62]
[62]Plaintiff’s Exhibit P2, PCB 26.
98Dr Mohtaji prepared reports dated 9 November 2022, 23 November 2022, and 12 December 2023.[63]
[63]Plaintiff’s Exhibit P2, PCB 34-35, 30-31 and 22-26.
99Dr Mohtaji confirmed that he had no record of the injury sustained by Mr Mostakim in 2019 but that he understood Mr Mostakim had sustained a tendon rupture which required surgery. Dr Mohtaji was told that post-operatively, Mr Mostakim made attempts to return to work but struggled with the duties and hours.
100Dr Mohtaji opined that Mr Mostakim’s mental health struggles resulted in a relationship breakdown and two-month hospital admission. Dr Mohtaji confirmed that even though Mr Mostakim had been seen by a psychiatrist and a psychologist and had been prescribed medications, his mental health remained poor.
101Dr Mohtaji opined that Mr Mostakim’s physical and psychiatric conditions were permanent and that he was unable to work due to his psychiatric condition and inability to use his dominant right hand. He suggested that Mr Mostakim’s psychiatric condition was contributing to his incapacity more so than his physical injury.
Ms Johanna Hart (psychologist)
102Mr Mostakim tendered a psychology treatment notification form dated 17 September 2020 and a letter dated 29 September 2020 from Ms Hart.[64]
[64]Plaintiff’s Exhibit P7, PCB 53.
103Ms Hart first treated Mr Mostakim on 25 August 2020 and by 17 September 2020 he had attended six sessions.
104The treatment notification form dated 17 September 2020 contained a diagnosis of major depression and anxiety “in the context of Karim not being able to work. This has exacerbated marital difficulties at home, and ultimately led to separation from his wife and children.”[65]
[65]Plaintiff’s Exhibit P7, PCB 47.
105Ms Hart expected Mr Mostakim to be fit for normal work duties by 15 December 2020.
106Ms Hart’s letter dated 29 September 2020 recorded that Mr Mostakim’s marital breakdown had caused significant distress for him and that he was struggling with severe depression and anxiety. Ms Hart said that he had struggled to adjust to life in Australia without his wife and children. Ms Hart noted the hospital admission for psychiatric treatment and that Mr Mostakim was on medication. She supported a return to Morocco.
South Eastern Private Hospital
107Mr Mostakim tendered a short letter from South Eastern Private Hospital dated 19 October 2020 which was signed by Dr Sachin Pillai (Senior Psychiatric Registrar) on behalf of Associate Professor Vaddadi.[66]
[66]Plaintiff’s Exhibit P6, PCB 45.
108The letter confirmed that Mr Mostakim was an inpatient of the hospital between 8 July 2020 and 8 August 2020 under the care of treating psychiatrist Associate Professor Vaddadi. No further details are provided.
109The lack of detail is not enlightening, and the report has been of little assistance to the Court.
Ms Harshita Syal (psychologist)
110Mr Mostakim tendered one report of Ms Syal dated 21 December 2022 which dealt with four attendances between 13 October 2022 and 28 November 2022.[67] Mr Mostakim ceased attending Ms Syal sometime in 2023.
[67]Plaintiff’s Exhibit P4, PCB 27-28.
111Mr Mostakim did not refer to any attendances on Ms Syal in his affidavits.
112Mr Mostakim presented to her with suicidal ideation, and it was noted that a safety plan was in place. Mr Mostakim reported low mood, helplessness, lethargy, and anhedonia.
113Ms Syal confirmed Mr Mostakim reported to her that his mental health issues and chronic pain interfered with his capacity to work.
114Ms Syal’s report is of limited significance as she did not provide a diagnosis or make comments on Mr Mostakim’s prognosis or capacity. The relevance of her report is that it confirmed that Mr Mostakim was attending a treating psychologist in 2022.
Medico-legal reports
Mr Raf Asaid (orthopaedic surgeon)
115Mr Mostakim tendered two reports from Mr Asaid dated 13 September 2022[68] and 24 July 2023.[69]
[68]Plaintiff’s Exhibit P10, PCB 78-83.
[69]Plaintiff’s Exhibit P10, PCB 54-60.
116The significance of the reports is that at the time of both examinations, Mr Mostakim presented as visibly anxious and could not stop grinding his teeth.
Associate Professor Shashjit Varma (psychiatrist)
117Mr Mostakim tendered a report from Associate Professor Varma dated 20 June 2022.[70]
[70]Plaintiff’s Exhibit P12, PCB 88-95.
118At the time of the examination, Mr Mostakim was working performing unrestricted pre-injury duties on a full-time basis. Mr Mostakim reported that he was coping well with work.
119Mr Mostakim told Associate Professor Varma that his psychiatric condition had led to the marital breakdown and an approximate two-month admission to the South Eastern Private Psychiatric hospital in 2020.
120Associate Professor Varma commented that Mr Mostakim was cooperative, communicative and gave a good account of his problems. He considered he had a neutral mood and affect, although he was observed to get a bit anxious during the examination.
121Associate Professor Varma diagnosed an Adjustment Disorder with Depression, secondary to the right thumb injury in remission.
122Associate Professor Varma opined that Mr Mostakim could return to pre-injury hours and duties, noting he was working at the time of the examination. Associate Professor Varma did not recommend any further treatment, noting that Mr Mostakim was being treated appropriately with an antidepressant and anti-anxiety medication and was attending a psychologist.
Dr Leon Turnbull (psychiatrist)
123Mr Mostakim tendered two reports from Dr Turnbull dated 5 December 2022 and 13 August 2023.[71]
[71]Plaintiff’s Exhibit P11, PCB 61-69 and 70-77.
124There is a stark contrast to what appeared to be a fairly settled presentation to Associate Professor Varma in June 2022 and Mr Mostakim’s first presentation to Dr Turnbull in December 2022.
125At the time of the first examination, which was conducted over a video link, Mr Mostakim reported he barely slept, his thinking was “crazy,” and he continued to entertain suicidal thoughts of stabbing himself in the throat. He could not remember his age. He reported feelings of grief and loss in relation to losing his wife and repeatedly told Dr Turnbull that the employer had “ruined” him. He became distressed and tearful and at one point began shouting.
126Dr Turnbull said he was not inclined to diagnose a Major Depressive Disorder, as he did not consider there was a severe underlying depression driving Mr Mostakim’s dysfunctional mental state. Dr Turnbull preferred a diagnosis of Adjustment Disorder, as he considered that Mr Mostakim’s emotion, distress and moods were in response to his physical condition and losses.
127Dr Turnbull noted however that none of the Diagnostic and Statistical Manual of Mental Disorders diagnoses were “particularly adequate” to describe Mr Mostakim’s situation.
128Dr Turnbull concluded that the thumb condition was the main driver of Mr Mostakim’s psychiatric state. Dr Turnbull accepted there were other issues at play (specifically the loss of his wife and family). Dr Turnbull considered there was a “bidirectional relationship” between these other issues and that it was plausible that Mr Mostakim’s mental state after the injury may have contributed to the breakdown of his marriage.
129Dr Turnbull opined that Mr Mostakim could not return to pre-injury work because of his psychiatric state and “other than perhaps some repetitive manual tasks in a fairly contained environment” he was not really sure what else Mr Mostakim could do.
130Dr Turnbull concluded the prognosis was poor, given Mr Mostakim presented as distressed, overwhelmed, and suicidal despite taking a range of heavy psychotropics (bromazepam, quetiapine, mirtazapine and paroxetine).
131At that stage, Dr Turnbull considered treatment to date was adequate but recommended the involvement of a psychologist or psychiatrist, as the prescribed medications were beyond the skill of a GP.
132Dr Turnbull next examined Mr Mostakim via video link on 9 August 2023.[72] Mr Mostakim remained under the care of his GP and was taking four Diazepam daily, as well as Paroxetine, Quetiapine and Endone.[73]
[72]Plaintiff’s Exhibit P11, PCB 61-69.
[73]Plaintiff’s Exhibit P11, PCB 62.
133Mr Mostakim reported ongoing mental health issues. He said that he had been using the drug “Ice” for about three months but that he had ceased using it three weeks prior to the examination. Mr Mostakim continued to have thoughts of killing himself via stabbing or hanging.[74]
[74]Plaintiff’s Exhibit P11, PCB 62-63.
134Dr Turnbull observed Mr Mostakim spoke in a despairing and dramatic fashion. At one point during the examination he lay down, and when he got up, Dr Turnbull observed his pants and underpants were halfway down his bottom.[75]
[75]Plaintiff’s Exhibit P11, PCB 65.
135Dr Turnbull reviewed a number of reports and commented on the difficulty of reconciling the different opinions in those documents.
136Dr Turnbull observed that if the defendant’s medical material was to be accepted, then Mr Mostakim did not have a psychiatric condition.[76]
[76]Plaintiff’s Exhibit P11, PCB 66.
137Dr Turnbull opined that such a view did not accord with:
· Mr Mostakim taking multiple psychotropic medications
· Mr Mostakim being an inpatient in a psychiatric hospital for three months[77]
· Mr Mostakim’s ongoing presentation as a distressed, dramatic, and intense man who could not work.[78]
[77]This appears to be an inaccurate record of the length of the inpatient stay.
[78]Plaintiff’s Exhibit P11, PCB 66.
138Dr Turnbull was critical of what he described as a “heavy handed” approach of the previous psychiatrist and opined that the three diagnoses provided by the GP were “overkill.”[79]
[79]Dr Mohtaji diagnosed Borderline Personality Disorder, Generalised Anxiety Disorder and Major Depressive Disorder (recurrent and severe).
139It was Dr Turnbull’s opinion that the range of prescribed medications were not justified. He considered that it would be appropriate for Mr Mostakim to be prescribed one or two psychotropic medications and some analgesics if needed.
140He described Mr Mostakim as a “dramatic man who presents in a somewhat difficult to take at face value fashion”.[80]
[80]Plaintiff’s Exhibit P11, PCB 66.
141Dr Turnbull accepted it was plausible Mr Mostakim’s mental health partly contributed to his marital breakdown.[81]
[81]Plaintiff’s Exhibit P11, PCB 67.
142However, Dr Turnbull did not rule out the possibility that Mr Mostakim was exaggerating his condition and concluded if it was shown he was exaggerating, then his opinion should be ignored.
143Dr Turnbull diagnosed a mild to moderate Adjustment Disorder which was affecting and amplifying Mr Mostakim’s experience of pain and dysfunction.
144Dr Turnbull confirmed Mr Mostakim could not return to his pre-injury role on psychiatric grounds. He noted that Mr Mostakim considered himself to be physically and mentally disabled. Dr Turnbull considered that view was disproportionate.
145In terms of alternative employment, Dr Turnbull considered that it was difficult to see what work Mr Mostakim could do. Dr Turnbull ultimately opined that Mr Mostakim could probably undertake some part-time manual repetitive work but did not specify what he meant by “part-time”.
Defendant’s medical evidence
146The defendant tendered a number of records from Mr Mostakim’s treating team and medico-legal reports – the following are relevant to the sub-paragraph (c) claim.
Treating team
Dr Youngsuk Ko (GP)
147The defendant tendered a referral letter from Dr Ko to Ms Hart (psychologist) dated 18 August 2020,[82] which confirmed that Mr Mostakim had been discharged from the South Eastern Private Hospital. Dr Ko requested regular updates as to Mr Mostakim’s progress and capacity for work.
[82]Defendant’s Exhibit D9, DCB 45-46.
Dr Nada Chefchaouni (psychiatrist/psychotherapist)
148The defendant tendered a medical certificate from Dr Nada Chefchaouni (psychiatrist/psychotherapist) dated 29 March 2022.[83] Dr Chefchaouni is based in Fes, Morocco. Dr Chefchaouni confirmed that Mr Mostakim had been a patient of the clinic from October 2020 to March 2022 and had been diagnosed with a severe anxiety-depressive disorder. She opined that his condition was stable with the following medications: mianserin, bromazepam, paroxetine and quetiapine.
Medico-legal reports
[83]Defendant’s Exhibit D11, DCB 49.
Associate Professor Peter Doherty (psychiatrist)
149The defendant tendered a report from Associate Professor Doherty dated 23 February 2023.[84] Associate Professor Doherty examined Mr Mostakim in person on 16 February 2023.
[84]Defendant’s Exhibit D13, DCB 58-67.
150Mr Mostakim said his mood was up and down, depending on his medication. He said he sometimes woke in a bad mood and other times was in a good mood. He quantified his mood at 2-3 out of 10. He reported experiencing nightmares and disrupted sleep due to pain.
151Associate Professor Doherty considered Mr Mostakim presented as tense and worried but without obvious distress. There was variable eye contact and no rapport. Mr Mostakim’s reactivity was appropriate to the setting, and he did not seem guarded or suspicious.
152Mr Mostakim told Associate Professor Doherty that prior to the work incident his mental health was good and that he was not having any psychological or psychiatric treatment prior to that time.
153Associate Professor Doherty noted that Mr Mostakim had previously been diagnosed with an Adjustment Disorder relevant to the work injury and marriage breakdown. He was taking antidepressants.
154Despite this, Associate Professor Doherty concluded there was little in the way of psychiatric symptoms and “nothing from an objective viewpoint to suggest the presence of a diagnosable psychiatric condition.”[85]
[85]Defendant’s Exhibit D13, DCB 66.
155Associate Professor Doherty concluded the breakdown in his marriage and limited access to his children, as well as isolation in Australia, were ongoing significant issues for Mr Mostakim. He opined that such matters were unrelated to the work injury and its consequences.
156Associate Professor Doherty opined that Mr Mostakim had the psychiatric capacity to work his pre-injury duties and hours, or in alternative full-time employment.
Dr Clayton Thomas (consultant in rehabilitation and pain medicine)
157The defendant tendered a report of Dr Thomas dated 22 December 2022.[86]
[86]Defendant’s Exhibit D12, DCB 51-57.
158Mr Mostakim presented as very distressed and quite agitated during the examination. Mr Mostakim complained of ongoing pain and soreness in the right thumb which disrupted his sleep. He reported he could not use the thumb, meaning he could not cook, do up buttons or tie up shoe laces. He showed Dr Thomas his fly was undone and indicated this was due to the injury.
159Dr Thomas accepted Mr Mostakim had been left with some residual problems with the thumb but considered that his presentation was more in keeping with a significant non-organic component which stemmed from the original claimed injury.
Causation – psychiatric condition
Mr Mostakim’s Submissions
160Senior Counsel submitted that the compensable injury to the thumb was a cause of Mr Mostakim’s psychiatric decompensation, which had then contributed to his relationship breakdown.[87]
[87]T14, L29-31 – T15, L1-21.
161Senior Counsel submitted this meant Mr Mostakim met the causation test as set out in Zlateska v Consolidated Cleaning Services.[88]
[88][2006] VSCA 141 at paragraph [8].
162To support this submission, the plaintiff relied upon the opinions of Dr Mohtaji, Dr Ko, Ms Hart, Mr Goad, Mr Asaid, Dr Turnbull, and Dr Thomas.
163In terms of Dr Ko, it was submitted he confirmed a link between the thumb injury and the psychiatric decompensation in a certificate dated 15 October 2020. The certificate records Mr Mostakim as suffering from:
“1.Mixed depression and anxiety
2.Adjustment disorder
3.Acute stress reaction due to separation.”[89]
[89]Plaintiff’s Exhibit P3, PCB 36.
164In terms of Dr Hart, the plaintiff relied upon her WorkSafe Treatment Notification Form dated 29 September 2020, which recorded Mr Mostakim’s major depression/anxiety had developed in the context of not being able to work.
165The plaintiff submitted Mr Goad in his letter dated 15 September 2022 and Mr Asaid in his report dated 24 July 2023 also both identified that after the thumb injury, Mr Mostakim suffered a psychiatric breakdown. The plaintiff maintained their qualifications to make such an assessment (as a physiotherapist and orthopaedic surgeon) were not challenged during the proceeding and that the Court should therefore accept their opinion in this regard.[90]
[90]See: T208 and 209-210.
166Finally, the plaintiff relied upon the opinions of Dr Turnbull and Dr Thomas. It was submitted that Dr Turnbull concluded that Mr Mostakim’s mental health at least partially contributed to the loss of his family, denoting this did form part of his current claim.[91]
[91]T211, L16-21.
VWA’s Submissions
167The defendant submitted Mr Mostakim’s psychiatric decompensation from January 2020 onwards was unrelated to the compensable thumb injury and was in fact caused by his marital breakdown.[92]
[92]T171, L17-21.
168In support of this, the defendant pointed to contemporaneous records from hospitals and treaters which referred to his marital breakdown as the cause of his anxiety and distress with no mention of his thumb injury.[93]
[93]T181, L21-28.
169In reviewing the plaintiff’s evidence, the defendant criticised Dr Mohtaji for merely accepting the account of events provided by Mr Mostakim[94] and refuted the interpretation of Dr Ko’s certificate.[95]
[94]T174, L14-15, 30-31.
[95]T182, L2-11.
170The defendant also submitted Ms Hart in her letter dated 29 September 2020 made it clear that she considered the plaintiff’s psychiatric problems were attributable to his marital breakdown, rather than the thumb.[96]
[96]T182, L22-31.
Findings on causation – psychiatric condition
171This is a difficult case to assess as mentioned by Dr Turnbull.
172There were marked differences in Mr Mostakim’s presentation to Associate Professor Varma in June 2022 and his first attendance on Dr Turnbull in December 2022.
173It is clear that by December 2022 Mr Mostakim had decompensated and since that time has not been coping and has been prescribed increasing doses of medication.
174No doctor has provided a specific explanation for this decompensation, but it appears to have occurred in the context of Mr Mostakim ceasing work in August 2022 and his referral to Ms Syal for psychological counselling.
175Mr Mostakim must prove on the balance of probabilities that a causal connection currently exists between the injury and his employment with the defendant.
176The question of causation is a matter of common sense and Mr Mostakim does not have to establish that the employment with the employer was the sole or dominant cause of his injury.[97]
[97]Zlateska v Consolidated Cleaning Services Pty Ltd (supra) at paragraphs [8]-[11].
177There is an obvious difficulty associated with determining causation issues on the papers without having had the benefit of hearing evidence from the medical practitioners.
178Having considered all the evidence, I accept the medical evidence which supports a causal connection between the right thumb injury and Mr Mostakim’s psychiatric decompensation which in turn led to his marriage breakdown.
179I prefer and accept Dr Turnbull’s opinion that whilst other factors such as the matrimonial breakdown and loss of family had a role to play, there was a “bidirectional” relationship with the work injury as Mr Mostakim’s mental state also contributed to the breakdown of his marriage. I also accept Dr Turnbull’s opinion linking the psychiatric condition back to the work-related thumb injury and his finding that there was a significant contribution to the plaintiff’s psychiatric state.
180I have considered Associate Professor Doherty’s views carefully. It is significant that Mr Mostakim’s presentation to Associate Professor Doherty was in stark contrast to his presentation to other doctors. There were no histrionics. No tears, no yelling, no signs of visible anxiety. This may explain why Associate Professor Doherty concluded that there was no diagnosable psychiatric condition.
181Associate Professor Doherty was informed as to the wide range of medications, but he did not really comment on this aspect at all. He did not grapple with the conundrum that if Mr Mostakim had no diagnosable psychiatric condition, why was he being prescribed and taking so much medication?
182Associate Professor Doherty’s opinion does not accord with the rest of the medical evidence.
Submissions on range
183The plaintiff submitted the psychiatric condition met the threshold of severe as per Mr Mostakim requiring significant psychotropic medication for a number of years.[98]
[98]T226, L14-18.
184The plaintiff submitted Associate Professor Doherty’s opinion was entirely contrary to the overwhelming thrust of medical evidence regarding Mr Mostakim’s psychiatric condition and should not be accepted.[99]
[99]T22, L6-9.
185The defendant submitted Mr Mostakim’s psychiatric condition did not meet the threshold of “severe.”[100] The defendant relied upon the opinion of Associate Professor Doherty that Mr Mostakim was not suffering from a diagnosable psychiatric condition. The defendant alternatively relied upon the opinion of Dr Turnbull that the condition was not severe.[101]
[100]T181, L10-13.
[101]T183, L14-18.
186The defendant submitted there was no opinion from a treating psychologist or psychiatrist to refute this assessment by Dr Turnbull.
187The defendant submitted Dr Mohtaji’s diagnoses and medication regime had been roundly criticised by the more qualified Dr Turnbull.[102]
[102]T185, L7-15.
Submissions on capacity for work
188The defendant submitted that the figure which best reflected the plaintiff’s “without injury” earnings was the figure earned in the 2019/2020 financial year of $68,905 gross.
189It was submitted that 60 per cent of that figure is $41,343 gross per annum/$795 gross per week. Mr Mostakim did not dispute such figures.[103]
[103]T186, L12-18.
190Neither party tendered any vocational material dealing with alternative employment or earnings.
191During cross-examination, Mr Mostakim advised he had applied for two jobs since ceasing with the employer in August 2022.
192The first involved taking orders in a take-away store which he did for two hours.[104]
[104]T139, L11-31 – T140, L1-26.
193The second was in a friend’s business, providing companionship to a National Disability Insurance Scheme client. Mr Mostakim advised he worked 4 hours a week for approximately 3 months in mid-2023, but then ceased as he could not cope mentally.[105] Such employment was not deposed to in his affidavits.
[105]T140-142 .
194The plaintiff submitted Dr Turnbull found he could not return to his pre-injury work and could only work part-time hours in limited alternative employment.
195The defendant submitted Mr Mostakim had a full-time or near full-time capacity for work on psychiatric grounds relying on Associate Professor Doherty’s opinion. The defendant also noted that Dr Turnbull, for the plaintiff, accepted he had capacity for some form of manual job.
Findings on capacity for work and range
196I find that Mr Mostakim was able to work on a full-time basis up to August 2019. In addition, he was also able to obtain a second job and was working between 40 and 50 hours a week in the two jobs at the time of the work incident.
197Associate Professor Varma’s opinion that Mr Mostakim could return to pre-injury hours and duties must be considered in context as Mr Mostakim was in fact working at the time of the examination in mid-2022. Associate Professor Varma has not reviewed Mr Mostakim in recent times.
198Associate Professor Doherty is the only psychiatrist who recently expressed an opinion that Mr Mostakim could return to pre-injury duties or similar duties with a different employer. This opinion was based on the premise that Mr Mostakim had no diagnosable psychiatric condition.
199Considering all the medical evidence, including the opinions of Dr Mohtaji, Dr Chefchaouni and Dr Turnbull, I find that the overwhelming balance of medical opinion is that Mr Mostakim cannot return to pre-injury duties as a result of his psychiatric condition. He is now totally incapacitated for pre-injury employment as a result of his psychiatric condition.
200The only doctor who commented on whether Mr Mostakim had a capacity for alternative work either on a full-time or part-time basis was Dr Turnbull. However, his opinion in this regard was vague and imprecise.
201Considering the medical evidence further, including the opinions of Dr Mohtaji and Dr Chefchaouni, I find that the overwhelming balance of medical opinion is that Mr Mostakim cannot return to any work as a result of his psychiatric condition.
202I find that the loss of capacity for work, together with his ongoing psychiatric symptoms (which may manifest in bizarre behaviour) and his ongoing need for psychotropic medication (which may or may not be over-prescribed), together with his poor mental health which includes anxiety and stress and panic attacks with suicidal thoughts, are “severe” and are sufficient to satisfy the narrative test.
203I find that as Mr Mostakim is totally incapacitated for employment, he has a current loss of earning capacity of 40% or more, and I further find that on the evidence he will continue permanently to have a loss of earning capacity of 40% or more.
Findings on disentanglement
204The parties made submissions about the need to “disentangle” the impairment consequences of a physical injury and the impairment consequences of a psychiatric/psychological injury.
205There is no need to disentangle in this case as I have accepted that there is a causal link between the original injury and Mr Mostakim’s psychiatric condition and have further found that the impairment consequences of the psychiatric condition are severe.[106]
[106]Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323 at paragraphs [5]-[7].
Disposition
206Consistent with authority,[107] having found that Mr Mostakim is successful in relation to sub-paragraph (c) of the definition of “serious injury,” it is not necessary for the Court to determine his application under sub-paragraph (a) of the definition.
[107]Advanced Wire & Cable Pty Ltd v Abdulle (supra).
207Leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages and loss of earning capacity damages.
208I will hear the parties on the issue of costs.
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