Movahhed v Impressive Platters Pty Ltd
[2018] VCC 751
•6 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01922
| SARVINEH SAEEDI MOVAHHED | Plaintiff |
| v | |
| IMPRESSIVE PLATTERS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 May 2018 | |
DATE OF JUDGMENT: | 6 June 2018 | |
CASE MAY BE CITED AS: | Movahhed v Impressive Platters Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 751 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – injury to the elbow – injury to the hand – psychiatric injury – substantial organic basis – disentanglement
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Harris v DJD Earthmoving Pty Ltd; Bedeux v Transport Accident Commission [2016] VSCA 127; Advanced Wire & cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170.
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Elliott QC with Mr S Loftus | Henry Carus & Associates |
| For the Defendant | Mr J L Batten | Hall & Wilcox |
HER HONOUR:
Preliminary
1 Mrs Movahhed is a 39-year-old woman who claims to have suffered injury to her right shoulder, elbow and hand, during the course of her employment with the defendant’s catering business, from late August 2012 until 1 November 2012. Mrs Movahhed said that she was required to perform repetitive duties, including cutting meats for the preparation of sandwiches, as well as carrying boxes and platters of food.
2 Mrs Movahhed claims that the functioning of her right arm was impaired as a consequence of such employment. In order for Mrs Movahhed to be entitled to claim common law damages for this physical injury, the impairment to her right arm must satisfy paragraph (a) of the definition of serious injury contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).
3 In the alternative, Mrs Movahhed claims that she has suffered a psychiatric injury as a consequence of these physical injuries. She claims that she was harassed by her supervisor when she reported her injury, and that she has also suffered depression from her ongoing pain. In order for Mrs Movahhed to be entitled to claim common law damages for a psychiatric injury, she must satisfy paragraph (c) of the definition of serious injury contained in s134AB(37) of the Act.
4 Mrs Movahhed was called to give evidence and was cross-examined. Also in evidence were medical reports and other material, including an affidavit from her husband. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that the consequences to Mrs Movahhed from her right arm injury, both in respect of pain and suffering and pecuniary loss, can be described as very considerable, such that she should be granted leave to commence common law damages. I am also satisfied that the consequences to Mrs Movahhed from her psychiatric condition can be described as severe.
Mrs Movahhed’s life before suffering her work injuries
6 Mrs Movahhed was born in Iran, where she completed high school. She thereafter qualified as a hairdresser and beauty therapist. Mrs Movahhed married at the age of 19, and, approximately four years later, moved with her husband to live in Auckland, New Zealand. She has two sons. Her eldest son, who is now 18 years of age, was born in Iran, and is currently studying at university. Her youngest son, who is now 15 years of age, attends the local high school.
7 Whilst they were living in New Zealand, Mrs Movahhed’s husband owned and operated three different kebab shops, at different times. Whilst she cared for her two sons the majority of the time, Mrs Movahhed said that she also worked for two to three hours per day in her husband’s kebab shop, mostly operating the cash register.
8 Shortly prior to moving to Australia, Mrs Movahhed completed a short course in travel and tourism, which resulted in her obtaining a few days of employment during the 2011 Rugby World Cup. As part of this course, Mrs Movahhed also did one week’s work experience at a Hertz Car Rental depot. Mrs Movahhed said she then commenced a course in business management which she did not complete.
9 Whilst living in New Zealand, Mrs Movahhed made three separate claims for the payment of medical expenses under the New Zealand no-fault compensation scheme.
10 The first claim was made in September 2009, in relation to a right rib sprain, which Mrs Movahhed said caused her some short-term pain. She said an x‑ray demonstrated no abnormality. At that time, Mrs Movahhed was prescribed Tramadol.
11 The second claim was made in December 2010, in relation to a neck sprain, which the claim form states was the result of a car accident. Mrs Movahhed denied that she was involved in a car accident, and recalled that her pain had come on from sleeping awkwardly at night-time. Mrs Movahhed accepted that she had a sore neck at this time and that she took Naprosyn for the pain.
12 The third claim was made in December 2011, in relation to left-sided chest pain, which Mrs Movahhed said she experienced whilst moving house. She said that she recovered from this condition within a week.
13 Mrs Movahhed denied that she had ever suffered prior right-shoulder pain, and in particular, denied having suffered a right-shoulder injury or any other injury whilst working for her husband’s kebab shops in New Zealand.
14 Mrs Movahhed also said that, subsequent to the birth of her second child, she suffered some depression for which she was prescribed Citalopram, an anti-depressant medication. She said that she took this at a dose of 10 milligrams per day for a few years. Mrs Movahhed said that she was not taking any medication for her depression at the time she moved to Australia, as it was then under control.
15 Mrs Movahhed and her family moved to Australia at some stage in early 2012. Mrs Movahhed said she was keen to obtain employment in the tourism industry, and in particular, as an airline hostess. She said that she had applied for many jobs, but had been unsuccessful in her applications. As she needed to obtain an income, Mrs Movahhed applied for other roles and ultimately accepted a position as a delivery driver with the defendant.
Mrs Movahhed’s work injury and its consequences to her
16 Mrs Movahhed commenced employment with the defendant on 26 August 2012. She said that she was initially employed as a delivery driver, but that within approximately two weeks, she was also asked to work as a kitchen hand. She said that whilst working in the kitchen she was required to prepare sandwiches, which involved cutting meat on a slicer machine.
17 In addition, Mrs Movahhed continued to work as a delivery driver, and was responsible for unloading and stacking deliveries of catering food.
18 For the nine weeks that Mrs Movahhed was employed with the defendant, she worked, on average, 29.6 hours per week, for which she was paid $18 per hour. Mrs Movahhed said the hours she worked each week varied, but that she usually commenced at 6.30am, and finished at about 2.30pm or 3.30pm in the afternoon.
19 In early October 2012, Mrs Movahhed said she felt increasing pain in her right thumb, right elbow, and right shoulder.
20 On 23 October 2012, Mrs Movahhed consulted general practitioner, Dr Zain Gorji, in relation to her right arm pain. Dr Gorji’s clinical note of that date recorded:
“3 weeks of increasing right thumb pain on various movements;
4 weeks of right elbow pain on both medial and lateral aspects;
4 weeks of increasing right shoulder pain on various movements
Severe right shoulder pain with difficulty lifting this shoulder
She has been in this job for two months; performing repetitive actions.”
21 The following day, Mrs Movahhed underwent an ultrasound in relation to her right shoulder and right wrist. The report indicated that the examination of the wrist was normal, but demonstrated mild subacromial bursitis in her right shoulder, with features supportive of the clinical diagnosis of impingement.
22 Mrs Movahhed said that she reported her pain to her supervisor, Ms Aleksandra Cicavevic. She said that despite her report of right shoulder pain, she was still required to continue with the repetitive cutting work.
23 Mrs Movahhed also said that the owner of the defendant’s business, Errol Kemal, bullied and harassed her, as did other employees of the business. Mrs Movahhed said that she believed this harassment was a consequence of her inability to work at the pace expected.
24 On 1 November 2012, Mrs Movahhed resigned her employment with the defendant, in part due to her physical pain, and in part due to the emotional trauma she experienced as a result of the treatment she had received from her employer.
25 On 31 January 2013, Dr Gorji referred Mrs Movahhed to orthopaedic surgeon, Mr Ash Moaveni. In his letter of referral to Mr Moaveni, Dr Gorji sought an opinion as to Mrs Movahhed’s presentation of increasing pain and tenderness in her right hand, wrist, elbow, shoulder and right-sided neck pain.
26 On 5 February 2013, Mrs Movahhed met with Mr Moaveni. In a letter to Dr Gorji of that same date, Mr Moaveni noted that Mrs Movahhed had a relatively well preserved range of motion in her cervical spine, a full range of motion in her right elbow and a full range of motion in her right hand and wrist. However, he noted that she had a painful right shoulder above 90° of elevation. Mr Moaveni suspected that it would be very difficult to give Mrs Movahhed an anatomical diagnosis for her pain, but suggested an MRI scan of her cervical spine and shoulder as a precaution.
27 Mrs Movahhed said that she understands she may have titanium in her jaw from a previous surgical procedure, and does not therefore consider it appropriate to undergo an MRI scan. She said that she is also frightened of going into an MRI machine.
28 In approximately February 2013, Mrs Movahhed completed a WorkCover claim form, with the assistance of a solicitor. The claim form referred to her suffering an injury to her right upper extremity and neck pain, as a consequence of repetitive tasks associated with manual lifting and preparing food. The claim form stated that the injury came on gradually, and that she first noticed the condition on 5 October 2012. It also stated that she reported the condition to her supervisor, Aleksandra, on 8 October 2012.
29 Mrs Movahhed was cross-examined as to the details in this claim form, which, she said had been completed by her solicitor. Mrs Movahhed did not believe that she had injured her neck whilst at work, and said that she considered it to be pain from her right shoulder that radiated across to her neck.
30 In approximately May 2013, Mrs Movahhed commenced consulting a new general practitioner, Dr P Wong, who practised closer to her home in Doncaster East. Dr Wong diagnosed Mrs Movahhed as suffering right shoulder pain, suggestive of a frozen shoulder, together with right wrist pain, suggestive of De Quervain’s tenosynovitis.
31 Dr Wong referred Mrs Movahhed to physiotherapist, Ms Martha Cheng. When she first consulted Ms Cheng on 25 June 2013, it was noted that Mrs Movahhed complained of pain all over her right shoulder, wrist, and hand, together with pain in the right side of her neck. It was noted that her pain was aggravated by movements of her arm, hand and wrist. Ms Cheng provided treatment by way of home exercises, as well as joint and soft-tissue mobilisation and pain-relieving electrotherapy. However, Mrs Movahhed said that whilst the electrotherapy helped the pain in her shoulder whilst the treatment was being performed, it continued to persist once the treatment had finished. She cited this persisting pain as the reason for which she discontinued such treatment.
32 On 24 September 2014, with the assistance of her solicitors, Mrs Movahhed completed a claim for impairment benefits. Her claim form stated that she suffered injuries to her cervical spine and right upper extremity, together with a psychological injury.[1] The statutory insurer accepted liability in relation to her right upper extremity and her psychiatric/psychological condition, but rejected liability in respect of her cervical spine.
[1]The claim form also erroneously referred to an impairment of the right lower extremity, including the right hand. This was clearly an error. The right hand was assessed as part of the right upper extremity.
33 In March 2015, Mrs Movahhed was referred to a Farsi-speaking clinical psychologist, Dr Fariba Kavianpour. Mrs Movahhed said that she has consulted Dr Kavianpour every two to four weeks on a regular basis since that time.
34 In a report dated 4 August 2017, Dr Kavianpour noted that Mrs Movahhed’s mental health issues occurred in reaction to the work-related physical injuries she suffered during her employment with the defendant. It was noted that she suffered a chronic pain syndrome, which had exacerbated her mental health problems, and that, in addition, she felt that she had been harassed and bullied to work harder and faster, despite her reports of pain and difficulty. Dr Kavianpour noted that, since having sustained her injuries, Mrs Movahhed had suffered from low and irritable mood, difficulty sleeping, fluctuating appetite, low energy, poor memory, problems with concentration, anhedonia, withdrawal from others, low libido, and feelings of being useless, hopeless, and helpless. It was also noted that Mrs Movahhed suffered anxiety symptoms in relation to facing her former employer, together with nightmares.
35 Dr Kavianpour provided treatment in the form of psychological strategies and cognitive behavioural therapy. She attributed Mrs Movahhed’s current psychological issues to a limited capacity to function, together with her ongoing pain, and thought that the stabilisation of her mental health depended upon her level of recovery from her physical injuries and pain. She stated:
“Given the degenerative nature of her physical injuries and in line with reduced physical capacity, it is expected that her psychological capacity for work-related activities, domestic duties, as well as family, social, and leisure activities, would be reduced over the course of her lifetime.”
36 Finally, Dr Kavianpour noted that Mrs Movahhed had trialled a number of psychotropic medications, including Citalopram, 20 milligrams, and Cymbalta, 40 milligrams, with limited symptom improvement. In approximately July 2015, Dr Wong referred Mrs Movahhed to physician and rheumatologist, Dr Tim Bennett. He initially arranged for an updated ultrasound to be taken of Mrs Movahhed’s right shoulder. This ultrasound report, dated 10 July 2015, noted that Mrs Movahhed’s subacromial bursa was thickened and impinged on abduction. It was recommended that the bursopathy would be amenable to a cortisone injection.
37 Mrs Movahhed said that she could recall having consulted Dr Bennett, and that he had recommended she undergo a cortisone injection into her shoulder. Mrs Movahhed said that she was unwilling to undergo such an injection, on the basis there was no guarantee it would reduce her pain, together with her understanding that it may result in a subsequent increase of pain. She also knew someone who had experienced a bad outcome after having undergone a cortisone injection.
38 Dr Bennett then referred Mrs Movahhed to physiotherapist, Mr Mark Latimer, whom she first consulted on 13 July 2015. In his report dated 25 July 2015, Mr Latimer noted that Mrs Movahhed had irritated cervical and right wrist pain, as well as “sore and weak right shoulder muscles, probably secondary to cervical spine and neural irritation”. He also noted that the treatment had commenced with “very encouraging results” before indicating that she would be given a home exercise program to perform daily.
39 Mrs Movahhed recalled seeing this physiotherapist on only one occasion. She recalled being told to perform exercises at home, but said that they resulted in an increase in her shoulder pain, such that, after having tried a few times, she stopped performing the exercises.
40 In early 2018, Mrs Movahhed underwent a pain-management program under the guidance of pain-management specialist, Dr Jamie Young. She said that this course involved some psychological treatment, as well as hydrotherapy and physiotherapy, and that she was also given lessons in how to cope with activities of daily living, such as grooming and performing household tasks. Mrs Movahhed said that the course assisted her in finding ways to better deal with her pain, as well as assisting her to complete activities with predominantly her left hand. However, Mrs Movahhed said that, as soon as she began to use her right hand, her pain returned to the levels it had been before she commenced the pain-management program.
41 Mrs Movahhed now goes to the gym approximately twice a week, and to hydrotherapy once or twice a week, and continues to perform the home exercises.
42 Mrs Movahhed has not worked since 1 November 2012, nor has she looked for work. She said that her pain is too great, and that she cannot work while she is in such pain. Mrs Movahhed has also not looked to undertake any further study, as she does not feel that she is up to it.
43 Mrs Movahhed said that her psychologist had encouraged her to become more social, such that last year, she began to spend more time with her hairdresser, who had since become a friend. Mrs Movahhed said that she would go to her friend’s hair salon to have a coffee and to talk, and that she would sometimes stay for many hours. Mrs Movahhed said that on a couple of occasions, when her friend had been particularly busy, she would assist by washing a customer’s hair or occasionally holding a blow-drier. She said that she undertook these tasks with her left hand.
44 Mrs Movahhed said that when she became aware that the insurer had filmed her attending her friend’s hair salon, she stopped going. She said that she did not want to get her friend involved in her legal case, nor did she want to get her friend in trouble. Mrs Movahhed said that she has not seen her friend since being made aware of this surveillance approximately 12 months ago.
45 Mrs Movahhed said that a friend in Iran had suggested that she consider doing cosmetic tattoo work, which she did not consider to be appropriate, on the basis that she did not have the requisite qualifications, nor be able to use her right hand to complete the tattoo work. Mrs Movahhed said that the work would require her to keep her hand in a static position, and that she is not able to use her right hand in this way.
46 Mrs Movahhed said that she usually drives her youngest son to school each day, but that she can do very little housework due to her ongoing pain. She said that she tries to put on a load of washing, but is not able to then hang it out on the line. She said that she cannot change the linen. When she vacuums, she does so with her left hand. She said that her husband and sons do the majority of the household tasks, due to her ongoing right-arm pain. She also said that she is not able to cook or cut up vegetables.
47 Mrs Movahhed said that her husband purchased a kebab business a couple of years ago. She said that it was only in operation for four months, before it then failed for financial reasons. During that time, Mrs Movahhed did not visit the business at all, as it was located 45 minutes from her home, and she was not able to drive that far. Further, she said that she was not able to supervise staff, as she did not feel comfortable socialising.
48 Mrs Movahhed said that the pain in her shoulder is draining and upsetting, and that it has impacted upon her ability to play and care for her children.
49 Mrs Movahhed said that the pain in her right shoulder is constant, but varies depending upon the weather. She said the pain is centred around the front part of her shoulder joint, and that many activities involving the use of her right shoulder cause her an increase in shoulder pain.
50 Mrs Movahhed said that her right arm pain causes her to lose sleep. She said that she has trouble getting to sleep, and that she wakes a couple of times a night from pain.
51 Mrs Movahhed said that she experiences anxiety and depression, that she feels her heart racing and that she sometimes has difficulty breathing. She said that she has nightmares, which are about Mr Kemal.
52 Mrs Movahhed stopped taking regular pain medication approximately two years ago, as it caused her an stomach upset. She now uses Voltaren Gel and also applies heat packs to her shoulder. In relation to her depression, she takes Citalopram, 20 milligrams per day.
53 Mrs Movahhed also relied upon an affidavit from her husband, Mr Hahmed Khaden. He stated that, prior to suffering her injuries the subject of this claim, Mrs Movahhed was a very active person. He said that his wife cared for their children and kept the family home, by doing the cooking, cleaning, and shopping. Mr Khaden said that he and his children now take care of most of the house cleaning and cooking. He said that since his wife underwent a pain-management course, she has attempted to do some more house cleaning, but that she is still very restricted in the level of activity she can perform.
Medico-legal evidence in respect of Mrs Movahhed’s physical injury
54 Mrs Movahhed’s solicitors arranged for her to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in March 2017. In his report dated 7 March 2017, Mr Kossmann detailed the circumstances in which Mrs Movahhed injured her right shoulder and wrist, and the investigations which were subsequently performed. Mr Kossmann noted that Mrs Movahhed complained of pain in movement and restriction in her right shoulder joint, and made a clinical diagnosis of subacromial bursitis, with features of an impingement syndrome. He also noted De Quervain’s tenosynovitis in her right side.
55 Mr Kossmann was of the opinion that Mrs Movahhed had no work capacity, due to pain and restriction of movement in her right shoulder and right wrist. He recommended that investigations be undertaken which may result in further treatment, and said that he would then provide a further assessment as to Mrs Movahhed’s future work capacity.
56 Mr Kossmann re‑examined Mrs Movahhed in April 2018, following her completion of the pain-management course. In his report dated 6 April 2018, Mr Kossmann noted that, following completion of the pain-management course, Mrs Movahhed continued to complain of a pulling sensation in her right arm, as well as difficulties performing activities of daily living, such as putting on a bra and taking care of her hair.
57 Mr Kossmann then repeated the diagnosis that he had made in his previous report, and noted that Mrs Movahhed suffered depression and anxiety.
58 Mr Kossmann considered Mrs Movahhed’s prognosis regarding her right shoulder joint to be guarded. From an orthopaedic perspective, he considered that Mrs Movahhed had a very limited work capacity, and said that whilst she should be able to work modified duties, she should avoid working permanently with her upper extremities, working above shoulder or head height, or lifting items weighing more than two kilograms.
59 Mrs Movahhed’s solicitors also arranged for her to be examined by physician, Dr Peter Blombery, in March 2017. In his report dated 10 April 2017, Dr Blombery detailed the circumstances in which Mrs Movahhed suffered pain in her right shoulder and wrist, together with the investigations subsequently undertaken and the treatment provided. Dr Blombery considered the pain in her right shoulder to be caused by subacromial bursitis. In relation to her right wrist pain, he stated that there was no evidence of any abnormality on the imaging. Dr Blombery noted that Mrs Movahhed had developed a significant secondary depression, which he considered had contributed to a sensitisation of pain nerve pathways, which amplified the pain she was experiencing from the subacromial bursitis, as well as the pain remaining in her right wrist.
60 Dr Blombery was of the opinion that Mrs Movahhed had no capacity for her pre-injury employment insofar as it involved the heavy and repetitive use of her dominant right arm. He considered that she may be able to do light tasks, using her left arm, for a maximum of a few hours per week.
61 Dr Blombery re‑examined Mrs Movahhed in April 2018. In his report dated 11 April 2018, Dr Blombery noted that Mrs Movahhed had undertaken the pain-management course, which had been of some benefit, but that she was left with ongoing pain. Dr Blombery repeated his previous opinion that Mrs Movahhed suffered from subacromial bursitis affecting her right shoulder, which was complicated by a pain syndrome and secondary depression and anxiety. Dr Blombery again stated that Mrs Movahhed may be able to perform some light work, for a few hours a week, using predominantly her left arm. Dr Blombery stated she would not be able to undertake any duties which involved the heavy and repetitive use of her arms.
62 Mrs Movahhed’s solicitors also arranged for her to be examined by occupational physician, Dr Joseph Slesenger, in March 2017 and March 2018. In his first report, dated 10 March 2017, Dr Slesenger detailed the circumstances in which Mrs Movahhed had suffered injury to her right shoulder and right wrist. Following the examination of Mrs Movahhed, and of numerous medical reports, Dr Slesenger stated that, in his opinion, Mrs Movahhed suffered right-shoulder rotator-cuff tear, adhesive capsulitis, chronic pain disorder, together with right-wrist tendinitis and possible De Quervain’s tenosynovitis.
63 Dr Slesenger was of the opinion that, as a consequence of her right arm injury, Mrs Movahhed would have the following work restrictions:
· No shoulder reaching
· No push, pull, carry or lift over 5 kilograms
· No repetitive shoulder or wrist work.
64 Dr Slesenger considered that Mrs Movahhed’s prognosis should be guarded, but said there were opportunities for improvement in her symptoms. He was cautious as to her long-term capacity for employment.
65 Dr Slesenger re‑examined Mrs Movahhed in March 2018. In his second report dated 10 April 2018, Dr Slesenger noted that, following the pain-management program, Mrs Movahhed reported a moderate resolution of her right-shoulder symptoms and a resolution of her right-hand symptoms. He noted that she was able to drive for up to 30 minutes.
66 Dr Slesenger was then of the opinion that, given such improvement, Mrs Movahhed had a retained capacity for work with the following restrictions:
· Avoid over-shoulder reaching
· Avoid push, pull, carry or lift over 7.5 kilograms
· Avoid repetitive shoulder tasks.
67 Dr Slesenger was of the opinion that Mrs Movahhed had the capacity to work as a call-centre consultant, a booking clerk in the travel industry, or as a travel consultant. He recommended that she could return to work four hours a day, four days a week, increasing to five hours a day, five days a week.
68 The defendant arranged for Mrs Movahhed to be examined by Dr JS Pathak in March 2013, to determine her entitlement to compensation, including weekly payments. In a report dated 28 March 2013, Dr Pathak obtained a history from Mrs Movahhed that her duties involved moving trolleys carrying approximately 20 kilograms of foodstuff from the van into the kitchen, together with putting frozen food into the freezer, cutting food, including slicing meat, and lifting heavy trays of food and sandwiches. At the time of the examination, it was noted that Mrs Movahhed complained of a burning pain in her right shoulder, right wrist and in the radial side of her right hand and thumb. There was also noted to be pain in her right elbow, neck and the suprascapular area.
69 Dr Pathak examined Mrs Movahhed and noted a relatively well preserved range of motion in her cervical spine, and a full range of motion in her right elbow. However, he noted a restriction in the movements of her right shoulder and right wrist and thumb. Dr Pathak was of the opinion that Mrs Movahhed suffered from subacromial bursitis with features of impingement in her right shoulder, together with soft tissue injury of her right wrist and right thumb. He considered Mrs Movahhed’s injury to have been caused by the repetitive movement of her right arm whilst at work. He was of the opinion that, as at that time, Mrs Movahhed could not return to her pre-injury duties or hours, nor could she undertake alternative or modified duties.
70 The defendant arranged for Mrs Movahhed to be examined by orthopaedic surgeon, Mr Clive Jones, in November 2014. In his report dated 3 December 2014, Mr Jones detailed the history he obtained from Mrs Movahhed in relation to the heavy tasks she had been performing at work, “such as continually operating a meat slicer and doing a good deal of lifting.” Mr Jones noted that Mrs Movahhed perceived she was given scant attention when she complained about her symptoms, and was told to get on with it. She then perceived her workplace as being both bullying and harassing in nature, and said that she subsequently became depressed and resigned.
71 At the time of the examination, Mr Jones noted that Mrs Movahhed complained that she was experiencing painful elevation of the right arm and limited use of the arm above shoulder height. He noted that she had difficulty sleeping and that she experienced clicking sensations in her shoulder. Mr Jones noted that the pain involved the whole of Mrs Movahhed’s right upper arm, down to her forearm. He considered that her complaints of pain around her wrist were non-specific.
72 Mr Jones was of the opinion that Mrs Movahhed was suffering a subacromial bursitis, which he thought should improve with time and physiotherapy.
73 Mr Jones was of the opinion that Mrs Movahhed would not return to her pre-injury duties and hours, but that employment, which did not involve use of her right arm above shoulder level, would be “perfectly acceptable.” In particular, Mr Jones considered that Mrs Movahhed would be physically capable of performing the jobs of hotel concierge, call-centre operator, airline booking clerk and travel consultant.
74 The insurer arranged for Mrs Movahhed to be examined by occupational physician, Dr David Fish, in January 2015, for the purpose of assessing her impairment benefit claim. In his report dated 12 January 2015, Dr Fish detailed the nature of Mrs Movahhed’s work duties and the onset of pain in her right shoulder, together with the pain in her right hand and wrist.
75 Dr Fish was of the opinion that Mrs Movahhed presented with persistent right shoulder pain and reduced movement, in keeping with right rotator cuff dysfunction with impingement. However, Dr Fish did not consider there to be any diagnosable condition in respect of her right hand and, in particular, was of the opinion that there was nothing to suggest she suffered De Quervain’s tenosynovitis or carpal tunnel syndrome.
76 Dr Fish recommended that Mrs Movahhed undergo a cortisone injection into her right shoulder, which he described as a “relatively non-invasive and simple procedure with a high chance of improvement in her symptoms and functionality.”
77 The defendant arranged for Mrs Movahhed to be examined by hand specialist, Mr Damian Ireland, in April 2016 and January 2017. In his first report dated 19 April 2016, Mr Ireland noted that Mrs Movahhed considered she had developed sudden pain in her right shoulder whilst slicing meat. He further noted that, upon resuming work the following day, Mrs Movahhed continued to suffer persisting right shoulder pain. She had also developed pain in her right wrist such that she stopped work. Mr Ireland noted that, at that time, Mrs Movahhed complained of constant right shoulder pain which was aggravated by cold weather and “stress”. He also noted that she complained of constant wrist pain, which worsened with use. He noted that her right elbow was symptom-free at that time.
78 Mr Ireland diagnosed Mrs Movahhed as suffering from “subacromial bursitis (rotator cuff tendonitis)” in her right shoulder, but said that he was unable to diagnose a major physical problem affecting her right elbow, wrist or hand. Mr Ireland queried the sudden development of pain in Mrs Movahhed’s right shoulder, in circumstances where she was standing at her job and had no obvious stress to her right shoulder. He ultimately concluded, however, that in circumstances where Mrs Movahhed was symptom-free prior to suffering her injury, and where the symptoms in her right shoulder had persisted since that time, it would be reasonable to describe the work as being a significant contributing factor to her claimed injury. Mr Ireland considered the prognosis for the resolution of her right shoulder symptoms to be poor. Mr Ireland suggested Mrs Movahhed might have responded positively to a corticosteroid injection, and stated that, in the event it only offered temporary relief, it would be appropriate to consider surgical decompression of the right shoulder rotator cuff arthroscopically.
79 Mr Ireland re-examined Mrs Movahhed in January 2017. In his report dated 18 January 2017, Mr Ireland noted that there had been no changes in Mrs Movahhed’s condition. He considered that she was capable of undertaking suitable employment, on a full-time basis, provided that such employment included a lifting limit of two kilograms and did not involve any activities requiring the right arm to be raised to shoulder level.
80 Mr Ireland provided the defendant with a supplementary report dated 21 March 2018, but did not re-examine Mrs Movahhed at this time. Instead, he reviewed the defendant’s affidavit material, as well as the vocational assessment report. In relation to the possible jobs proposed in the vocational assessment report, Mr Ireland stated that he considered Mrs Movahhed to be capable of working as a concierge, provided she obtain the job of “head concierge” and not be required to lift or transfer baggage in excess of two kilograms. Mr Ireland considered that Mrs Movahhed could work full-time as a call-centre consultant, booking clerk or travel consultant.
Medico-legal evidence in respect of Mrs Movahhed’s psychiatric injury
81 Mrs Movahhed’s solicitors arranged for her to be examined by psychiatrist, Dr Michael Epstein, in February 2017. In his report dated 1 March 2017, Dr Epstein detailed Mrs Movahhed’s past history, including that she suffered from depression in 2008, at which time she was prescribed Cipramil, which she took intermittently. He then noted that Mrs Movahhed suffered her injury whilst performing repetitive tasks associated with food preparation. Dr Epstein noted that Mrs Movahhed recalled having reported her injury to her supervisor. Notwithstanding the report of injury, she said that she had continued to perform the same work, but that her employer had become irritable as she was performing such work at a slower pace. Dr Epstein noted that Mrs Movahhed ceased work on 30 October 2012, because her pain was becoming worse.
82 Dr Epstein noted that Mrs Movahhed commenced consulting a Farsi-speaking psychologist in September 2015, which she found to be helpful.
83 Dr Epstein noted that Mrs Movahhed had difficulty sleeping, and that she was awakened by nightmares two or three times a week. He noted that the nightmares featured the owner of the defendant’s business screaming at her, and said that she wakes up feeling panicky.
84 Dr Epstein noted that Mrs Movahhed had low self-esteem and self-confidence. She was bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated, unsociable, and had problems with memory and concentration. He also noted that she had no libido. Dr Epstein noted that Mrs Movahhed was depressed most days of the week, for a few hours at a time, during which she felt hopeless, helpless, useless, worthless and tearful, and that she had occasional passive thoughts of suicide, and no active thoughts.
85 Dr Epstein considered that Mrs Movahhed might benefit from a multidisciplinary pain-management program. At that time, and considering only her mental state, he was of the opinion that Mrs Movahhed’s work capacity was nil.
86 Dr Epstein diagnosed Mrs Movahhed as suffering phobic anxiety disorder arising from her experiences with her employment, together with a chronic adjustment disorder with mixed anxiety and depressed mood.
87 Dr Epstein re‑examined Mrs Movahhed in April 2018, following completion of the pain-management course. He obtained a history that although Mrs Movahhed had improved whilst undertaking the pain-management program, she had since relapsed, to the extent that she was feeling hopeless as to the possibility that anything would now change. Dr Epstein noted that Mrs Movahhed continued to have difficulty sleeping, that she had recurrent intrusive thoughts about the way in which she had been dealt with, that she had panic attacks at least two or three times a week, and that she felt miserable, anxious, depressed and frustrated. Dr Epstein noted that Mrs Movahhed said she does not enjoy anything and rarely laughs.
88 Having considered only her mental state, Dr Epstein was of the opinion that Mrs Movahhed had no capacity for work. He considered her to suffer a phobic anxiety disorder and pain disorder, noting that the pain disorder involved mainly her right shoulder. He was of the opinion that the combination of physical and psychological effects had caused her to suffer a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Epstein considered that her condition was stable, and that her prognosis for improvement was poor.
89 In July 2014, the statutory insurer arranged for Mrs Movahhed to be examined by psychiatrist, Dr Ash Takyar. In a report dated 28 July 2014, Dr Takyar obtained a history from Mrs Movahhed of the circumstances in which she had suffered injury to her right shoulder and right wrist, together with allegations of perceived bullying on the part of her co‑workers.
90 Dr Takyar obtained a history that Mrs Movahhed had suffered depression whilst in New Zealand, for which she took Citalopram, 10 milligrams, on an intermittent basis for several months at a time. It was noted that she had ceased taking such medication prior to moving to Australia.
91 Dr Takyar considered that Mrs Movahhed suffered an exacerbation of her major depressive disorder in the context of her physical injury, subsequent chronic pain and disability, together with the reported bullying and harassment, which had contributed to her psychological deterioration.
92 Dr Takyar considered that, at that time, Mrs Movahhed had a capacity to work approximately five hours a week, but thought that she should be reviewed in six months’ time.
93 Dr Takyar re‑examined Mrs Movahhed in November 2014. In his report dated 18 November 2014, Dr Takyar noted there had been no change in Mrs Movahhed’s situation. He recommended a referral to a Farsi-speaking psychiatrist to oversee her antidepressant medication, together with a referral to a Farsi-speaking psychologist. Dr Takyar considered that, at that time, Mrs Movahhed had no capacity for work, but was of the opinion that her situation should be reviewed, depending upon her response to recommended treatment.
94 In a supplementary report dated 3 February 2015, following an agreement by the WorkCover insurer to fund treatment with a Farsi-speaking psychologist, Dr Takyar was asked to comment upon the impact such treatment would have on Mrs Movahhed’s capacity for employment. Dr Takyar stated that such a review should be conducted after Mrs Movahhed had been referred to a psychologist, possibly a psychiatrist, and after she had commenced with antidepressant treatment. Dr Takyar stated that psychological therapy in isolation may only provide a partial amelioration of her mental state, and would not produce the necessary fitness if her symptoms worsened or remained of a moderate severity.
95 Mrs Movahhed also relied upon a psychiatric report obtained from Dr Stephen Stern, dated 26 November 2014. This report was obtained by the insurer for the purpose of assessing her impairment benefit claim under s98C of the Act. Dr Stern obtained a history that Mrs Movahhed had suffered a physical injury to her right shoulder, with pain radiating down to her hand. He noted that her sleep was disturbed by both pain and intrusive thoughts about her situation, including nightmares about her employer. Dr Stern also noted that Mrs Movahhed complained of a lack of energy and reduced memory and concentration.
96 Dr Stern also obtained a history from Mrs Movahhed that she suffered from depression whilst in New Zealand, but that she felt better by 2011.[2]
[2]Dr Stern noted that Mrs Movahhed had continued to take Citalopram since 2006. Mrs Movahhed was not taken to this aspect of his report in cross-examination. Mrs Movahhed’s evidence was that she had taken the Citalopram for several years whilst in New Zealand, but then ceased taking it, and that she was not taking it at the time she moved to Australia.
97 Dr Stern diagnosed Mrs Movahhed as suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. He considered her psychiatric condition to be related to the injury she had suffered to her right shoulder during the course of her employment.
Mrs Movahhed’s credibility
98 The defendant challenged Mrs Movahhed’s credibility and reliability on a number of grounds, including her past work and medical histories. It also sought to challenge the circumstances in which she claimed to have suffered her injury at work.
99 It would appear that Mrs Movahhed’s work experience and qualifications were extremely limited. In cross-examination, Mrs Movahhed openly conceded that, since her marriage, and prior to commencing employment with the defendant, she had only worked a few shifts in paid employment at the Rugby World Cup. She also said that her work experience was limited to a week at Hertz rental car and a couple of weeks volunteering at a hairdressing salon in New Zealand. I considered Mrs Movahhed to have been very genuine in the manner in which she explained the extent of her prior experience and qualifications and am of the opinion that she did not attempt to exaggerate the relatively limited nature of such experience.
100 In seeking to challenge Mrs Movahhed on her past medical history, the defendant relied upon an affidavit from its director, Mr Errol Kemal. In his affidavit, Mr Kemal recalled that Mrs Movahhed had informed him at her pre-employment interview, that she had injured her shoulder whilst working in her husband’s kebab shop in New Zealand. Mrs Movahhed emphatically denied having said this to Mr Kemal, in a manner I considered credible. I consider that her denial is in part corroborated by the records of the Accident Compensation Corporation of New Zealand, which do not refer to any such incident or injury.
101 In a report by Dr Stern, there was also a suggestion that Mrs Movahhed had been on antidepressant medication for a prolonged period of time, including up until the time that she suffered her injury with the defendant. I note that Mrs Movahhed said that she had suffered some depression after the birth of her second child, for which she had been on antidepressant medication for a period of time thereafter. This history was provided to Dr Epstein and Dr Takyar. I accept Mrs Movahhed’s evidence that, at the time she arrived in Australia, she was no longer taking any antidepressant medication, and that she no longer suffered from any depression.
102 The defendant then sought to challenge Mrs Movahhed in respect of the circumstances in which she suffered her physical and psychiatric injuries. Notwithstanding the statutory insurer’s acceptance of her WorkCover claim, the defendant sought to challenge Mrs Movahhed’s claim on the basis of an affidavit it tendered from the plaintiff’s supervisor, Ms Aleksandra Cicavevic.
103 Ms Cicavevic said that Mrs Movahhed had only been required to work in the kitchen for short stints, and that she had only been required to cut a small piece of ham on one occasion. Ms Cicavevic then stated that Mrs Movahhed had said the following day that she could not cut the ham again, because she had a previous problem with her right shoulder. She said Mrs Movahhed made no further complaints. Ms Cicavevic was of the opinion that Mrs Movahhed had been slow in the manner in which she undertook her kitchen hand duties, but denied that she had ever harassed or bullied her.
104 In cross-examination, Mrs Movahhed denied Ms Cicavevic’s version of the events which had occurred in the work place.
105 The nature of an application for leave under s134AB of the Act, is that, whilst the plaintiff gives evidence, a judge does not usually have the advantage of hearing evidence from other witnesses, or having the testimony of most of the witnesses cross-examined.[3] Such applications cannot proceed as a “fully-fledged trial.”[4]
[3]Bedeux v Transport Accident Commission [2016] VSCA 127
[4]Ibid at [24]
106 In this case, there are conflicts in relation to those aspects of the affidavit material pertaining to the nature of Mrs Movahhed’s work duties and the circumstances in which she reported her injury. In an originating motion such as this, it is not for me to reconcile these differences.
107 Mr Batten referred me to the Court of Appeal decision of Sednaoui v Amac Corrosion Protection Pty Ltd.[5] In that originating motion, after hearing oral evidence from the plaintiff, the defendant’s factory manager and its general manager, the trial judge had significant reservations regarding the plaintiff’s credibility, and ultimately dismissed the application, notwithstanding the prior acceptance of a WorkCover claim. The Court of Appeal confirmed, that whilst the acceptance of a WorkCover claim form and subsequent payment of compensation was a significant admission, it was not determinative.[6] Having listened to Mrs Movahhed’s oral evidence on such matters, and acknowledging that I have not had the benefit of hearing oral evidence from Ms Cicavevic, I have no reservations as to Mrs Movahhed’s credibility. I also note that Mrs Movahhed’s oral evidence on the circumstances in which she suffered her injuries, was generally consistent with the medical histories she provided to each of the medico-legal doctors.
[5][2017] VSCA 66
[6]Ibid para 67
108 Overall, I considered Mrs Movahhed to be a credible witness, who gave her evidence in a simple and straightforward manner. I accept her evidence without reservation.
Is there a substantial organic basis to Mrs Movahhed’s spine or right shoulder impairment?
109 A key issue for determination in this application is whether I am satisfied that Mrs Movahhed’s pain and disability in her right arm has an organic basis, or whether her symptoms are due to a non-organic or functional overlay.
110 To succeed in the claim brought under paragraph (a) of the definition of serious injury, Mrs Movahhed must satisfy me, on the balance of probabilities, that the organically-based consequences satisfy the statutory criterion of being more than significant or marked, and at least very considerable.[7]
[7]Section 134AB(38)(3) of the Accident Compensation Act 1985
111 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[8] Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[9]
[8][2013] VSCA 201
[9]Ibid, at [21]
112 The defendant relied upon the two treating specialists Mrs Movahhed had consulted, Mr Moaveni and Dr Bennett to submit that there was no substantial organic basis to explain her complaints of pain.
113 In February 2013, Mr Moaveni stated, “I suspect that it will be very difficult to try and give (Mrs Movahhed) an anatomical diagnosis for her pain”. However, I note that in his letter dated 5 February 2013, Mr Moaveni made no mention of the ultrasound findings, and simply recommended that an MRI scan be performed as a precaution. I am therefore uncertain as to whether or not he had reviewed the ultrasound report, and thus attach little weight to his comment. I also note that Mr Moaveni examined Mrs Movahhed on only one occasion, over five years ago.
114 Dr Bennett arranged for the ultrasound in July 2015, which confirmed that Mrs Movahhed was still suffering subacromial bursitis in her shoulder that impinged on abduction. Dr Bennett recommended that Mrs Movahhed undergo a corticosteroid injection. I consider the recommendation of this proposed treatment option to support Mrs Movahhed’s claim that she suffers a substantial organic injury.
115 Dr Pathak, Mr Ireland, Dr Fish, Mr Kossmann, Dr Blomberry and Dr Slesenger all accept that Mrs Movahhed suffers subacromial bursitis, which imposes a range of restrictions on her physical capabilities. These restrictions are based on a substantial organic condition.
116 It is apparent that Mrs Movahhed also suffers a pain syndrome, as diagnosed by several psychiatrists, which also contributes to her claimed consequences. However, in circumstances where I am satisfied that there is a substantial organic basis to her right shoulder pain, in considering her application under part (a), it is not necessary for Mrs Movahhed to separate the physical consequences from the psychological causes of the pain and disability in her right shoulder.
117 However, I am not satisfied that there is any organic basis to support Mrs Movahhed’s claim for right wrist pain. The medical imaging was reported as normal and none of the doctors have offered a definitive diagnosis in respect of her complaints of pain. As such, in circumstances where there is no evidence to support her suffering an organically based physical injury in her right wrist, it is impermissible for me to consider her wrist injury when assessing the physical consequences of her right arm impairment under part (a).
Loss of earning capacity in respect of Mrs Movahhed’s right shoulder injury
118 To succeed in her application, Mrs Movahhed has the onus of satisfying me that, as at the date of hearing, as a consequence of her right shoulder injury, she has sustained a loss of earning capacity of 40 per cent or more, and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mrs Movahhed is capable of earning, whether in suitable employment or not, before then comparing it with her pre-injury earning capacity.
119 To determine her pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects Mrs Movahhed’s earning capacity had she not suffered the injury:
“(a)the gross income that Mrs Movahhed earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income that Mrs Movahhed would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[10]
[10]s134AB(38)(f) of the ACA and s325(2)(f) of the WIRC Act
120 For the nine week period in which Mrs Movahhed worked for the defendant, she earned, on average, $521.57 gross per week. Allowing for an average three per cent wage increase in the following three years, the parties agreed that the figure which most fairly reflected Mrs Movahhed’s without injury earning capacity, was $604.64 gross per week.
121 Applying the statutory test to this gross weekly sum, for Mrs Movahhed to succeed in her application, I must be satisfied that she is incapable of earning more than $362.70 gross per week in suitable employment, and that such a restriction on her earning capacity will be permanent.
122 What constitutes “suitable employment” is an objective test, which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[11] In Barwon Spinners Pty Ltd & Ors v Podolak,[12] the Court of Appeal stated that such an assessment is concerned with a plaintiff’s physical capacity for work, not whether employment will or will not be obtained.[13]
[11]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at [25] and [28]
[12]Ibid
[13]Ibid at [27]
123 In the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[14] it was noted that, under s134AB of the Act, the court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[15]
[14][2016] VSCA 188
[15]Harris, at [49]
124 In this case, all the doctors agreed that, as a consequence of her shoulder injury, Mrs Movahhed could not return to her pre-injury duties as a kitchen hand and delivery person. As such, the issue for me to determine is whether or not Mrs Movahhed is capable of undertaking alternative suitable employment and, if so, for how many hours and at what rate.
125 Mrs Movahhed said that due to her ongoing right shoulder pain, she is incapable of performing any paid employment. I accept this is a genuine belief that she holds.
126 Her general practitioner, Dr Wong, has certified her as unfit for all work since she first consulted him. In a report dated 13 March 2018, Dr Wong noted that, although Mrs Movahhed had obtained some improvement from the pain management program, there were still lots of things she could not do. Dr Wong considered that her capacity for employment was still limited by the reduced strength and endurance of her right upper limb. He recommended that Mrs Movahhed engage with an occupational rehabilitation provider to facilitate her engagement in occupational training.
127 There is some reference in the tendered material, including in Dr Wong’s report, to Mrs Movahhed being retrained to work as a cosmetic tattooist. Funding for a retraining course has not been provided. In any event, Mrs Movahhed did not consider this to be a suitable job, as she understood that it would require the stable use of her right arm. Dr Slesenger also shared this reservation.
128 The defendant relied upon two reports it had received from vocational assessors, NES, in February and November 2014, which proposed the following employment options as being suitable for Mrs Movahhed: concierge, call-centre consultant, booking clerk in the travel industry and travel consultant.
129 Mrs Movahhed relied upon two reports from recruitment specialist, Ms Marlene Tyquin, to dispute the suitability of the abovementioned proposed employment options. In her first report dated 27 April 2017, Ms Tyquin detailed the physical demands and other attributes associated with the jobs previously identified by NES. Ms Tyquin noted the following:
- a hotel concierge would include assisting guests with luggage which may necessitate carrying and/or maneuvering items onto a trolley.
I accept that such a job would exceed the physical restrictions identified by Mr Kossmann, Dr Blombery, Dr Slesenger and Mr Ireland. I do not therefore consider a hotel concierge to constitute suitable employment for Mrs Movahhed.
- A call-centre consultant, booking clerk and travel consultant would each require proficient computer skills, which would involve bilateral use of the upper limbs.
I accept that although it is possible to perform some computer tasks with the use of only one hand, I consider it unrealistic to assume that Mrs Movahhed could consistently perform the duties required in this job, in an efficient and productive manner, without the unrestricted use of both her arms.
130 In March 2018, Mr Kossmann re-exmained Mrs Movahhed, at which time he was of the opinion that she had the capacity to perform modified duties, provided that she avoid working permanently with her upper extremities, working above shoulder or head height or lifting items of more than two kilograms. Mr Kossmann did not state the number of hours he considered Mrs Movahhed capable of working in such modified duties. However, given he expressly stated that she would need to avoid working permanently with her upper extremities, I consider the jobs identified by NES involving computer work, would only be suitable if performed by Mrs Movahhed for a restricted number of hours per week.
131 In April 2018, Dr Blombery re-examined Mrs Movahhed, at which time he was of the opinion that she may be able to perform some light duties, a few hours per week, using predominantly her left arm. He did not think that she would be able to undertake any duties involving the heavy and repetitive use of her arms. Dr Slesenger was more optimistic as to Mrs Movahhed’s work capacity following her recent completion of the pain management program. However, I note that Dr Slesenger’s opinion was based on his understanding that Mrs Movahhed had experienced a “moderate resolution” of her right shoulder symptoms. That does not accord with the oral evidence that Mrs Movahhed gave in this matter. I therefore consider that Dr Slesenger is unrealistically optimistic as to Mrs Movahhed’s capacity to perform suitable employment.
132 I note that Mr Ireland was of the opinion that Mrs MMovahhed could work full-time in a call-centre, as a booking clerk or as a travel agent. I also consider this to be unrealistically optimistic.
133 Mr Jones was of the opinion that “employment which did not involve use of the arm above shoulder level would be perfectly acceptable”. Whilst he did not specify whether Mrs Movahhed could work full-time or part time, Mr Jones considered that she could work as a hotel concierge, in a call-centre, as a booking clerk or as a travel consultant.
134 In considering Mrs Movahhed’s capacity to work in suitable employment, I have had regard to her oral evidence that the small use of her right arm, results in increased right arm pain. In such circumstances, I have significant reservations as to Mrs Movahhed’s efficiency and employability in the office-based jobs identified by NES and Ms Tyquin. However, the test for me to consider is whether she is capable of performing such suitable employment on a reliable and consistent basis.
135 I am satisfied that Mrs Movahhed could perform the role of a call-centre consultant, bookings clerk or travel consultant for a very limited number of hours each week. I consider Dr Blombery’s opinion that she could do a few hours per week in light work to be realistic.
136 At best, I consider that Mrs Movahhed could work three hours per day, three days per week. This would allow her to work short shifts, so as to minimise the extended use of her right upper limb. It would also enable her to schedule a rest day between each working day. I consider this conclusion aligns with the opinions of Dr Blombery, Mr Kossmann and Dr Wong. For the reasons explained above, I am not assisted by the opinions of Dr Slesenger, Mr Ireland or Mr Jones.
137 Given my finding that Mrs Movahhed could not work more than nine hours per week, based upon the average earnings for occupation I consider to be suitable, the plaintiff will suffer the requisite 40 per cent loss of earning capacity as a consequence of her right shoulder injury.
138 I am satisfied that this pecuniary loss is permanent and that it will continue through the foreseeable future.
139 Once the threshold of 40 per cent reduction in earning capacity test has been met, it is still necessary for me to consider whether the consequences to Mrs Movahhed meet the “very considerable” test. Given my acceptance that Mrs Movahhed’s shoulder injury restricts her to working, at best, a maximum of nine hours per week in suitable employment, the pecuniary disadvantage to her is so great that I consider her loss of earning capacity can be described as, at least, very considerable.
140 As Mrs Movahhed has satisfied me that she suffers a serious injury in respect of loss of earning capacity arising from her right shoulder injury, it is not necessary for me to consider separately her pain and suffering consequences.[16]
[16]Advanced Wire & cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at [63]
141 I am satisfied that Mrs Movahhed suffers a serious injury to her right shoulder, arising as a consequence of her employment with the defendant, and that the consequences are such that she should be granted leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
Did Mrs Movahhed’s employment cause her to suffer a psychiatric disease or disorder and, if so, are its consequences to her severe?
142 In the alternative to her application under paragraph (a), Mrs Movahhed claims that, as a consequence of her physical injuries and the perceived bullying treatment she received from the defendant, she has developed a psychiatric condition, which satisfies the criterion under paragraph (c) of the definition of serious injury, in that she suffers a severe psychiatric disease or disorder.
143 Having granted Mrs Movahhed leave to commence proceedings in respect of her right shoulder injury, it is not necessary for her to separately obtain leave in respect of her psychiatric condition. However, having considered the evidence relevant to this aspect of her claim, I will now provide a brief explanation as to why I am satisfied the consequences to Mrs Movahhed from her psychiatric condition can be described as severe, such that she should also be granted leave to commence proceedings based upon her claim under part (c) of the definition of serious injury.
144 From her oral evidence, as well as the detailed histories contained within the reports of her treating practitioners and the medico-legal doctors, it is apparent that Mrs Movahhed perceived that she was bullied and harassed at work when she was unable to keep up with the pace of the work, due to her right arm pain.
145 The defendant denies that Mrs Movahhed was bullied and harassed at work.
146 Whether or not the bullying or harassment took place need not be determined by me in this application. I am satisfied that Mrs Movahhed reported some pain in her right arm to the defendant, and that she thereafter perceived that she was bullied and harassed for the speed at which she was working. This aspect of her psychological upset is relevant to this current application.
147 Although psychiatric upset was not claimed on Mrs Movahhed’s initial WorkCover claim form, it was referred to, and accepted by the statutory insurer, in respect of her s98C claim. Further, the insurer has paid medical expenses in relation to her psychiatric condition.
148 I do not accept the defendant’s submission that a separate WorkCover claim form was required in relation to the bullying and harassment. The medico-legal doctors all refer to Mrs Movahhed suffering psychiatric upset from her pain and associated disability, together with psychiatric upset from the perceived bullying. So, too, does Mrs Movahhed’s treating psychologist, Dr Kavianpour.
149 I am satisfied that, in considering her application under part (c), I can consider the psychiatric consequences arising from her physical pain and disability, as well as the perceived bullying. Both are consequences of the psychical injury she suffered during the course of her employment.
150 I note that Dr Takyar, Dr Stern, and Dr Epstein all accept that Mrs Movahhed suffers a psychiatric condition as a consequence of her employment with the defendant. Each of these medico-legal doctors refer to her psychological upset arising from her pain, as well as psychological upset arising from the perceived bullying and harassment.
151 I am satisfied that although Mrs Movahhed had previously suffered some depression, for which she required antidepressant medication, she was not suffering a psychiatric condition at the time she commenced employment with the defendant, nor was she taking antidepressant medication.
152 In his closing submissions, Mr Batten referred me to the report of Dr Stern and his opinion as to the percentage impairments he related to Mrs Movahhed’s pre-existing psychiatric condition, the psychiatric impairment he considered related to the perceived bullying and the psychiatric impairment he considered was “secondary” to Mrs Movahhed’s physical injury. Mr Batten conceded the percentage impairment provided for the purpose of her s98C claim was irrelevant for the purposes of this application, but suggested that I may be assisted by Dr Stern’s opinion as to apportionment between these three causes of her impairment.
153 I do not accept this submission. Whereas under s98C of the Act, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to a physical injury, for the purpose of this application under s134AB, there is no need to distinguish between Mrs Movaheed’s primary or secondary psychiatric upset, as long as both arise from the same injury.
154 In relation to any pre-existing impairment, as stated above, and contrary to the note taken by Dr Stern, I am satisfied that, although Mrs Movahhed had previously suffered some depression whilst in New Zealand, it was not an active condition at the time she commenced her employment with the defendant and it did not cause her any consequences.
155 Pursuant to the well-known principles enunciated in Petkovski v Galletti,[17] if a plaintiff suffers a pre-existing condition, a court can only consider the consequences arising from the aggravation. In circumstances where I am satisfied that Mrs Movahhed was not suffering any psychiatric consequences at the time she suffered her injury, I am able to consider the totality of the psychiatric consequences which she currently suffers and which I am satisfied have been brought about by her workplace injury.
[17][1994] 1 VR 436
156 For the reasons stated above, I am satisfied that Mrs Movahhed can rely upon the consequences arising from the physical injury she suffered at work which, in her case, have included the psychiatric upset from the pain as well as the perceived bullying from that injury.
157 Mrs Movaheed’s treating psychologist, Dr Kavianpour, considered that, as at August 2017, her work activities would be reduced over the course of her life time.
158 Dr Stern did not comment on Mrs Movahhed’s work capacity.
159 Dr Takya, who last saw Mrs Movahhed in November 2014, was of the opinion she had no capacity for work at that time.
160 Dr Epstein is the only psychiatrist who has assessed Mrs Movahhed following her completion of the pain management course. From a psychiatric perspective, he is of the opinion that Mrs Movahhed has no capacity for her pre-injury employment or other suitable duties and believes that this situation is unlikely to change.
161 Having considered Mrs Movahhed’s evidence, as well as the psychiatric opinions in this case, I am satisfied that Mrs Movahhed suffers a permanent loss of earning capacity as a consequence of her psychiatric injury. I therefore also grant her leave to commence a common law claim under part (c).
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