Puccio v Western Health Pty Ltd and VWA
[2011] VCC 404
•15 April 2011
-
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-03681
| SALVATORE PUCCIO | Plaintiff |
| v | |
| WESTERN HEALTH PTY LTD (TRADING AS | First Defendant |
| SUNSHINE HOSPITAL) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 & 27 January 2011 |
| DATE OF JUDGMENT: | 15 April 2011 |
| CASE MAY BE CITED AS: | Puccio v Western Health Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 404 |
REASONS FOR JUDGMENT
Catchwords: Accident Compensation Act 1985 – application for leave in respect of pain and suffering damages and pecuniary loss damages – reliance upon paragraphs (a) and (c) of the definition of serious injury – injury to the cervical and thoracic spine and resultant adjustment disorder – whether plaintiff reliable witness – plaintiff continuing as employee of first defendant – numerous job offers – reliability of evidence of general practitioner in relation to capacity of plaintiff to perform job offers - whether permanence of consequences established – whether statutory requirements in relation to pecuniary loss damages satisfied – s.134AB(38)(g) – whether requirements in relation to pain and suffering, including permanence, satisfied – factors to be considered.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Victorian Compensation |
| Mr R H Stanley | Lawyers | |
| For the Defendants | Ms M Britbart | Hall & Wilcox |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages. In bringing his application, the plaintiff relies upon sub-paragraphs (a) and (c) of the definition of serious injury found in s.134AB(37) of the Act. At the outset plaintiff’s counsel stated that emphasis would be placed upon sub-paragraph (a), but that sub-paragraph (c) was not being abandoned. Insofar as the injury under consideration is a physical one, it is injury to the back or spine, and essentially to the cervical and thoracic spine, this being suffered in a specific injury on or about 23 September 2008. The original claim also referred to injury to the arms, but whilst there was considerable reference to the shoulders (and particularly the right shoulder), the case was opened and presented on the basis of impairment of the spine, and in particular the cervical and thoracic spine. Insofar as the injury is a mental or behavioural disturbance or disorder, it is said to be constituted by an adjustment disorder, a major depressive disorder and anxiety secondary to the relevant accident and the pain suffered thereafter. Of course, the test in relation to the mental disorder is a more demanding one than that applicable to the physical injury, it requiring severity.
2 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
3 Mr J Richards SC with Mr R H Stanley of counsel appeared on behalf of the plaintiff. Ms M Britbart of counsel appeared on behalf of the defendants. The plaintiff was called to give evidence and was cross-examined. Oral evidence was also adduced from Dr Aejaz Sheriff, who has been the plaintiff’s treating general practitioner since early 2010. The balance of the evidence was documentary in nature and was tendered by consent.
4 Whilst there are two defendants named in this matter, their interest overlaps entirely and henceforth I shall refer only to “the defendant”, meaning Western Health Pty Ltd, by which entity the plaintiff was employed and in the employment of which he allegedly suffered the relevant injuries and their consequences.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 I found the plaintiff to be a somewhat unusual witness. As shall be discussed subsequently, I am of the view that he exaggerated and embellished his symptoms, although whether this was done consciously or subconsciously is a matter of conjecture. To various medical examiners and to the court he has complained of symptoms in many parts of his body. When asked to display a range of movements in the witness box, he appeared to be very restricted. This was in marked contrast to what was shown on surveillance. Whilst the film did not reveal him participating in strenuous physical activities, the whole impression created was of someone moving quite normally. Also, and there shall be further reference to this subsequently, the description of symptoms employed by him has at times been somewhat extreme, particularly bearing in mind the nature of the injury and the fact that he is a young man aged 32 of strong build and comparatively well-educated. On the other hand, some of the plaintiff’s answers evinced an intention to return to the workforce, and ultimately on a full-time basis.
7 However, on balance I did not find the plaintiff to be a particularly reliable witness when it came to recounting symptoms and consequences of injury.
(ii) The plaintiff’s education, background and training prior to the injury 8 The plaintiff is aged 32 years, having been born on 22 August 1978. He is a married man with a young child. He completed both primary and secondary education, passing his VCE. The plaintiff completed a TAFE course in security and worked in various occupations such as a courier, a waiter, a pizza shop worker and in security, before commencing employment with the defendant.
9 In approximately January 2002 the plaintiff began working for the defendant as an orderly and security officer, essentially being employed as an orderly and security officer in the Emergency Department of Sunshine Hospital. His duties included such things as transporting patients, courier type duties and some lifting and turning of patients. In the 12 month period prior to the occurrence of the incident of injury, he was required to push and pull trolley beds and the like and to transfer patients off and onto such beds and wheelchairs. This required frequent bending, twisting, pushing and the like.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury 10 The plaintiff had suffered two prior incidents of injury. When working for the defendant on approximately 26 July 1999 he was assaulted, and had some scans and a check-up. The assault did not cause any significant interference with his capacity to work or with his activities of daily living. On approximately 27 June 2007 he was again assaulted whilst working for the defendant, and suffered a strain to his left upper arm and lumbar spine. I accept that, as at the time of the relevant injury, there was no ongoing impact of any significance upon the plaintiff’s work or upon his daily activities as a result of this assault.
11 In summary, I am satisfied that the plaintiff was suffering no significant symptoms or consequences of earlier injuries as at the time of the occurrence of the relevant incident. Of course, insofar as the injury sustained was in the nature of an aggravation, in accordance with the authorities it is only the consequences of the injury as aggravated which I shall consider, but essentially I am not of the view that this is an instance of an injury in the nature of an aggravation. I might say that this is so in relation to both the physical and mental injuries.
(b) The injuries sustained in the incident of 23 September 2008, their treatment and the assessments of them 12 It is not denied by the defendant that the plaintiff suffered injury on 23 September 2008 and, at least for the purposes of this application, the manner in which the injuries occurred is not challenged. In essence, on that day the plaintiff was pushing a trolley-bed containing a patient to the Radiology Department when the trolley veered to one side and the plaintiff had to use force in order to correct the steering. In so doing, he twisted his upper body and spine.
13 The pain which the plaintiff experienced immediately was, as he stated in cross-examination, below his right shoulder blade and near his spine. Almost immediately he was examined by a doctor in the Emergency Department and was told that, whilst it was too early to make any definite diagnosis, it was a possible soft tissue injury. The plaintiff was absent from work for a couple of days before returning, but, because of the persistence of the muscular-type pain under his shoulder blade, again went home. He then visited his general practitioner, Dr Asthana. He saw Dr Asthana on 29 September 2008, and was complaining of pain in the thoraco lumbar spine and right shoulder. He was complaining of pain in the right mid-back and between his shoulder blades, and his neck was also painful.
14 Dr Asthana organised x-rays of the thoracic and lumbosacral spines, these being carried out on 3 October 2008. Essentially no abnormality was found. A CT scan of the thoracic spine was then carried out on 28 November 2008, but the results of this were normal with no features evident on CT of spinal canal or neural foraminal stenosis.
15 In the meantime, Dr Asthana had prescribed conservative treatment and ultimately, in December 2008, the plaintiff returned to work on restricted duties for some 12 hours per week. The plaintiff’s recollection is that he was not on prescribed medication but may have taken some Panamax, and also received physiotherapy together with cupping and needling to the right side of his mid- back. Dr Asthana has recorded that at times the plaintiff’s pain became severe and he had to take a couple of days off.
16 Dr Asthana referred the plaintiff to Mr Khan, orthopaedic surgeon, and during the delay in Mr Khan seeing him, the plaintiff continued on alternative duties, nine hours per week, but apparently increasing to 12 hours per week. The plaintiff’s evidence was that, as at February 2009, he was working 12 hours per week.
17 Mr Khan saw the plaintiff in February 2009, and reported back to Dr Asthana on 17 February. He took an appropriate history, including one of pain in the right side of the thoracolumbar spine, mainly in the area of the right shoulder blade with some pain in the right side of the neck radiating to the top of that shoulder blade. Mr Khan arranged for MRI scans which were performed on 5 March 2009. The conclusion of the radiologist was that there were no acute findings, and no evidence of neural impingement. A report of Mr Khan to the plaintiff’s solicitors, such report being dated 8 September 2009, indicates that Mr Khan saw the plaintiff on 9 February 2009 and 1 May 2009. His diagnosis was of a musculoskeletal and ligamentous strain to the cervical and thoracic spine, with evidence of mild pre-existing degenerative changes in those areas with radiological indications of some pre-existing asymptomatic degenerative changes. Mr Khan also referred to the presence of a mild discogenic injury at T8/9 and believed that the plaintiff had developed facet joint strain to the right side of the lower part of the neck and lower thoracic spine with the flaring up of some degenerative changes. Mr Khan’s remarks concerning capacity for employment shall be discussed subsequently.
18 In a report of 6 December 2010 to the plaintiff’s solicitors, Dr Asthana set out a history of events. Some of these have been described above. Dr Asthana also pointed out that Mr Khan referred the plaintiff to Dr Clayton Thomas for further care. The report notes that, at this time, the plaintiff continued on with light and restricted work. In December 2009 Dr Asthana went on holidays, and Dr Tan became the treating general practitioner. She continued to issue certificates for light and restricted work. The conclusion of Dr Asthana was that the plaintiff had a soft tissue injury to the cervical, thoracic and lumbar spines and to the right shoulder and had been treated conservatively, together with being placed on restricted duties, but that the plaintiff’s response had been slow. As shall be discussed, Dr Asthana’s concluding remarks in that report are as follows:
“Mr Khan is also of the opinion that he has soft tissue injury of his spine and shoulder and that it is not a serious injury and in due time he will recover and start doing his pre injury work. He is the treating specialist of Sam and therefore I’d go along with his opinion, and that he will recover soon and start his pre-injury work.”
19 A report from Dr Clayton Thomas to Mr Khan is contained in the latter’s clinical file and notes. Dr Thomas recorded a complaint of right sided pain in the thoracolumbar region with constant pain. His report, which is dated 23 June 2009, contains a reference to the fact that the plaintiff was working full- time on light duties, although whether this was factually correct appears doubtful. Dr Thomas noted that all radiological investigations revealed no abnormality and felt that the plaintiff’s problems seemed to be in keeping with a strain to the thoracolumbar spine. He referred the plaintiff to Dr Peter Courtney for possible treatment by way of facet joint injections and medial branch blocks, and also referred the plaintiff to a rehabilitation centre.
20 Dr Asthana provided a further supplementary report to the plaintiff’s solicitors on 24 January 2011. There is no reference to him having seen the plaintiff since his previous report. In this brief letter he stated, perhaps somewhat confusingly:
“Mr Khan is of the opinion that he has soft tissue injury of his spine and shoulder and that both the injuries prevent him from performing pre-injury employment or full time unrestricted manual labour type of work. I would be happy to go along with Mr Khan’s opinion.”
21 As stated, the plaintiff was referred to Dr Peter Courtney, who specialises in anaesthesia and pain medicine. His report, dated 21 July 2009, would indicate that he performed some local paravertebral injections into the muscles of the plaintiff’s cervical and upper thoracic area, these giving some short-term reduction in pain. Dr Courtney also provided a more detailed report of 2 December 2010. He records that he had seen the plaintiff on two occasions only in 2009 and had not seen him since 21 July 2009. When Dr Courtney saw him, the plaintiff presented with right upper thoracic pain, and described the incident in question. Upon examining the plaintiff on the earlier occasion, Dr Courtney found limited shoulder movement on the right side due to posterior muscle pain and a reduced range of movements of the neck. He injected the muscles on the right accordingly. He saw the plaintiff approximately four weeks later, and was told that there had been some short- term reduction of the pain and that physiotherapy and dry needling had helped in the past. Dr Courtney considered a pain management program for the plaintiff along with a thoracic facet block, but no funding was forthcoming.
22 In the meantime, Dr Sheriff had taken over the plaintiff’s care. His report of 18 January 2011 sets out the history of events. He noted a history of persistent pain which was progressively worsening. Upon examination he found spasm of the cervical muscles associated with tenderness and with radiating pain into both shoulders. He also noted radiating buttock and leg pains. He referred to the possibility of damage to aponeurotic attachments. Dr Sheriff noted that the plaintiff had depression secondary to his chronic pain. He suggested a reduction in the use of analgesics and commenced the plaintiff on an anti- depressant. He noted referral to Dr Helen Sutcliffe, occupational physician, and Mr Peter Mangos, general surgeon. Dr Sheriff also referred to the plaintiff’s repetitive, heavy duties and expressed the view that the plaintiff’s injuries appeared insidious in onset. He expressed the view that the plaintiff’s physical injuries precluded him from all types of work.
23 Dr Sheriff gave oral evidence. He was asked his view of the significance of the MRI of 5 March 2009 revealing at C4/5 “perhaps” a very slight disc bulge contacting the anterior thecal sac. He stated that this could give rise to localised pain, spasms and the like. A similar finding at T8/9 could result in pain in the rib cage and the abdominal muscles. He also expressed his view about aponeurotic bleeding, effectively proposing this as a diagnosis, although stating that there was no investigation sophisticated enough to actually diagnose this. I might add that Dr Sheriff’s explanation as to at what levels there were discs contacting the thecal sac was somewhat confusing and seemed to embrace a large number of levels.
24 In cross-examination it was put to Dr Sheriff that the plaintiff had built up to working 24 hours a week by the time that his duties ceased. Dr Sheriff was uncertain concerning this, and could not agree with the proposition that cessation of work occurred when the defendant no longer had any light duties for the plaintiff to perform.
25 Dr Sheriff’s history appears, at least in part, to be based upon a history that has certainly not been established by the evidence in this case. This is particularly so in relation to his theory based upon the “little bleeds”. At transcript 88, he stated as follows:
“Well, the patient has had chronic spinal pain, and then on another
day he actually injured himself, he falls.”
26 Apart from the fact that the plaintiff is not alleging that he fell, he is not asserting that he suffered chronic pain prior to the relevant incident. Indeed, as I understand it, he is asserting the contrary. He did not have pain of any significance prior to the incident in September 2008.
27 When cross-examined about this, Dr Sheriff’s evidence was far from convincing. He referred to the incidents in which the plaintiff had been involved in 1999 and 2007, saying that they formed the basis for the assertion which he was making, even though he had not noted that they resulted in chronic pain. I would also refer to the following question which I asked Dr Sheriff and his answer:
“Doctor, what you’re being asked about is I think you said before that he had chronic pain preceding the precipitating event. Is that the view that you formed?
---Yes, he probably had from previous injuries some amount of
chronic pain from which he has a minimal disability.”
28 This was confusing. I might say now that, on the basis of the evidence available in this case, I do not accept the theory advanced by Dr Sheriff in relation to damage to the aponeurotic attachments and the “little bleeds”. As shall be discussed, it is a suggestion which essentially stands alone. Apart from the evidence in relation to it being unconvincing and the history obtained being incorrect, it is not a view shared by any of the specialist medical examiners.
29 Another area in which I found the evidence of Dr Sheriff to be unimpressive related to the reasoning behind Dr Sheriff’s referral of the plaintiff to Dr Sutcliffe and Mr Mangos. His original answer was that the purpose of the referrals was to get an opinion as to what other specialists thought about the plaintiff’s type of injuries. He denied that he had sent the plaintiff to those doctors in order to obtain supporting reports for the plaintiff’s superannuation insurance claim. He denied that he took that into consideration in his mind at all, and that it was purely “for my clinical perspective” that such referrals took place. However, it was then pointed out to him that he had seen the plaintiff on 7 September 2010 and that the entry in his clinical notes for that date reads:
“To Mangos and Dr Sutcliffe. Needs a super report. Needs the
report for super.”
30 I have great difficulty in accepting Dr Sheriff’s evidence that his referrals and the plaintiff’s need for reports for his superannuation case were “totally unrelated”, and that the note that he had made was “for my memory”. That the two were “totally unrelated” is a position from which Dr Sheriff then resiled. He also struggled to explain why, in his report of 18 January 2011, he stated that he had not received any report from Mr Mangos “yet”, when the report of Mr Mangos, placed in evidence, is clearly addressed to Dr Sheriff and dated 13 September 2010. He referred to taking his files home and not having the particular report before him when he formulated his own report. Not only is the report of Mr Mangos addressed to Dr Sheriff and dated 13 September 2010, but it is to be found in the tendered clinical notes of Dr Sheriff – see plaintiff’s court book page 526. I should add that Dr Sheriff, having sent the plaintiff to Mr Mangos, did not agree with the opinion of that specialist if it was Mr Mangos’ opinion that the MRI results were of no clinical significance. There was some debate about whether that was in fact the opinion of Mr Mangos, but certainly, in his report of 13 September 2010, Mr Mangos describes the MRI as being “not really revealing” and expressed the view that the plaintiff’s injuries were probably musculoligamentous and of the mid- thoracic vertebrae.
31 There was further cross-examination of Dr Sheriff based upon the findings of Mr Mangos that the plaintiff had very few signs in the neck – “slightly reduced range of movements, otherwise normal. The shoulders move through a full painless range of movements” – and the contrast between this and Dr Sheriff’s observation that, on quite a few occasions, the plaintiff probably had spasm of the cervical muscles. His evidence as to whether or not he had made any examination of the plaintiff’s neck movements and shoulder movements since a note recorded on 14 May 2010 was again not particularly persuasive. He ultimately agreed that, given the absence in his clinical notes of any reference to limitation of neck or shoulder movement after that date, he could not say whether any such limitations existed.
32 Dr Sheriff was also cross-examined at some length concerning return to work plans, his involvement in same, and whether the plaintiff was capable of participating in them. I shall return to this issue when the plaintiff’s capacity for employment is discussed. Again, his evidence concerning this and in regard to the input he had and the advice that he gave was not impressive. Further, Dr Sheriff had referred the plaintiff to a psychologist, Mr Karamanos, one of whose consulting rooms seems to be at the same address as that of Dr Sheriff’s practice. Dr Sheriff’s evidence as to his knowledge of whether or not the plaintiff was attending upon Mr Karamanos and of Mr Karamanos reporting back to him, particularly in the context of the return to work plans, was not particularly satisfactory. Initially he said as follows:
“I don’t know whether he has seen him (Karamanos) once in three weeks, or once in six weeks, or eight months, but I know that I actually referred him to Mr Karamanos.”
33 Subsequently he referred to monthly meetings with Mr Karamanos, but could not recall any great detail. There was a written report from Mr Karamanos dated 24 August 2010, and ultimately, whilst earlier raising the possibility of there being ongoing consultation between the two, Dr Sheriff admitted that he had no knowledge of any change after 24 August 2010 in the plaintiff’s psychological condition.
34 In summary, I do not accept Dr Sheriff’s diagnosis concerning the aponeurotic layers and did not find him generally to be an impressive or persuasive witness.
35 As stated, Dr Sheriff referred the plaintiff to Dr Sutcliffe and Mr Mangos. Dr Sutcliffe reported to the plaintiff’s solicitors on 3 December 2010. Whilst Dr Sheriff had given evidence that he referred the plaintiff to Dr Sutcliffe (see transcript pages 90 and 91 and I would refer again to the extract from the clinical notes of 7 September 2010), Dr Sutcliffe has stated that she saw the plaintiff at the request of the plaintiff’s solicitors on 1 December 2010 and there is no indication in her report that she had seen him previously or at the request of Dr Sheriff. To Dr Sutcliffe the plaintiff described constant pain or varying intensity in the area of the medial aspect of the right shoulder blade and also in the corresponding area of the left, in addition to pain in the right anterior thigh and pins and needles in the lateral right leg. He also experienced “lesser pain in the thoracolumbar spine centrally”. He referred to pain and stiffness in the back upon awakening, and difficulty in performing such tasks as putting on shoes and socks. Dr Sutcliffe’s diagnosis was of a muscular tear and musculoligamentous injury to the thoracic area posteriorly at the medial inferior aspect of the right scapula.
36 As stated, Mr Mangos reported to Dr Sheriff on 13 September 2010. He took a history of pain in the mid-thoracic region, but no pain across the lumbar area and no evidence of sciatica. He also noted that the plaintiff did not hurt his neck at the time of the initial incident but “a year or so ago began getting neck pain with some posterior radiation of the right shoulder which sounds like facet problems”. He thought that the plaintiff’s injuries were probably musculoligamentous and of the mid-thoracic vertebrae. He felt that the plaintiff worried about himself, but did not appear to be in discomfort or pain. Mr Mangos was of the view that there was no serious injury present, and I do not interpret that as Mr Mangos attempting to answer the question that is before the court. He found “very little signs in the neck, slightly reduced range of movement, otherwise normal. The shoulders moved through a full painless range of movements”. Mr Mangos did find restriction of movements of the thoracolumbar spine, although the alignment was normal. He also stated that the plaintiff did not appear to be in discomfort or pain. I shall return to the views of Mr Mangos in relation to the plaintiff’s work capacity.
37 The plaintiff has been seen by an osteopath, namely Dr Elizabeth Lazarkov. In a lengthy report, she has referred to both the physical and mental problems of the plaintiff. Much of her report deals with the plaintiff’s restrictions and capacity. Whilst generally pessimistic, she does concede that the exact level of the plaintiff’s restrictions is yet to be determined as he was about to embark upon a new gymnasium program. I might add that she has also commented upon issues such as negligence. She has also stated that the plaintiff’s injury is sufficiently severe that he will never fully recover or be able to work without there being restrictions. I am not particularly persuaded by her report and prefer the opinions of treating and examining doctors and specialists.
38 At the request of his solicitors, the plaintiff was also seen by Mr Thomas Kossmann, orthopaedic surgeon, who reported on 6 January 2011. To Mr Kossmann the plaintiff complained of constant pain in the thoracic spine. Mr Kossmann diagnosed discogenic pain in the cervical and thoracic spine with degenerative disc changes at the C4/5 and C5/6 level, together with discogenic pain in the thoracic spine with minimal broad base disc bulge at the C7/T8 level. He also diagnosed musculoskeletal pain in the upper extremities.
39 The plaintiff’s physical injuries have also been the subject of assessment for medico-legal purposes at the request of the defendant. Dr Chris Baker, specialist in occupational medicine, examined the plaintiff on 2 November 2009, reporting on 10 November 2009. I note that, in the history given by the plaintiff to Dr Baker, the pain described at the time of the incident was in the lower back and in the thoracolumbar region. Upon examination, he considered his lower back condition to be worse, with constant pain in the right of the thoracolumbar spine. He complained of some radiation of pain up into the neck but not of any localised shoulder pain, and upon examination had a good range of movement. I note that Dr Baker had access to a report from Dr Clayton Thomas, in which that doctor considered the plaintiff’s problems to be in keeping with a strain to the thoracolumbar spine. Dr Baker’s diagnosis was that there was no specific injury to the cervical spine or to the lower lumbar spine, but there was a soft tissue injury to the right of the thoraco lumbar spine. He did not consider that there was a shoulder joint injury.
40 Mr Clive Jones, orthopaedic surgeon, has seen the plaintiff at the request of the defendant on a number of occasions. He first saw him on 3 June 2009. Like many other examiners, he took a history that the two prior assaults suffered by the plaintiff resulted in injuries that were managed conservatively, with the symptoms resolving in a month or so on each occasion. The plaintiff complained of pain in the interscapular region of the thoracic spine extending up into the neck and with no radiating pain. There was a full range of movement of the cervical spine and full range of movement in the shoulders. The right scapula area was the main source of discomfort. Mr Jones found it difficult to make a precise diagnosis, but considered that the plaintiff had suffered some sort of straining soft tissue injury of the right side of his neck and upper shoulder area. He found it difficult to understand the plaintiff’s inability to improve substantially. Mr Jones considered the clinical findings to be virtually normal and commented upon the absence of any substantial abnormality on MRI. He suspected significant exaggeration of symptoms.
41 Mr Jones saw the plaintiff again on 7 April 2010. The plaintiff’s symptoms were largely unchanged, although there were no complaints involving the left side. There was no change on physical examination, and the plaintiff had a full range of spinal movements. On this occasion the plaintiff stated that it hurt him to abduct his arms past 90 degrees, whereas, at the time of the first examination, there was a full and painless range of elevation. There were no abnormal neurological signs in the arms. Mr Jones was unable to explain the persistence of pain on a physical basis, although noting that a Medical Panel had diagnosed persistent soft tissue injury of the thoracolumbar spine.
42 Mr Jones again saw the plaintiff on 11 November 2010. Mr Jones noted that the plaintiff’s certificate of incapacity referred to spinal pain and sciatica. He took a history of variable pain, with symptoms perhaps worsening in severity. The plaintiff informed him that his back, neck and shoulders were “unbearably painful” and that he was unable to raise his head from the flexed position, although he demonstrated a capacity to do this later in the interview. Mr Jones appears still to have been at a loss in relation to diagnosis, and referred to the fact that the plaintiff has an undiagnosable condition of chronic thoracic pain.
43 Dr Kevin Fraser, rheumatologist, examined the plaintiff on 30 June 2010. To Dr Fraser the plaintiff described immediate pain below the right scapula at the time of the incident of injury. He described his current pain as being localised to the back and denied any shoulder pain. Dr Fraser stated that the plaintiff’s overreaction on physical examination left him in no doubt but that the plaintiff was exaggerating his disability. The plaintiff claimed to be unable to elevate his right arm beyond 90 degrees because of the back pain. Dr Fraser could not suggest any organic basis for the symptoms or signs described, believing that initially there had been a soft tissue strain which had since resolved.
44 Dr Malcolm Brown, occupational physician, saw the plaintiff on 22 June 2010 at the request of the defendant. To him the plaintiff described the onset of pain at the time of the incident as being on the right side of his back at mid- level. There had not been any clear radiation but there were some complaints of neck and shoulder symptoms. Dr Brown diagnosed a muscle strain to the back. On physical examination he found some generalised spinal stiffness and restriction, but no specific findings indicating serious spinal pathology. His diagnosis was of a muscle strain with generalised stiffness from activity and no evidence of a serious injury.
45 Dr David Ho examined the plaintiff on 5 November 2008. I note that to Dr Ho the plaintiff stated that he stopped work for a couple of minutes after the relevant incident, spoke to a colleague, and reported to the nurse in the Emergency Department. To Dr Fraser he had given the somewhat more dramatic description that his pain was such that he had to radio for help. In any event, he told Dr Ho that the immediate diagnosis was of a soft tissue strain. That was also Dr Ho’s diagnosis, namely a likely soft tissue injury or musculoligamentous strain in the right upper back or shoulder girdle muscles. Dr Ho was also of the view, as at that time, that the plaintiff was recovering well.
46 In relation to the plaintiff’s mental injury, he was, as stated, referred to Mr Karamanos, psychologist. I was referred to one brief handwritten report from that gentleman, which report is contained in the clinical notes. Mr Karamanos reported that, as at 24 August 2010, the plaintiff was seeing him in relation to anxiety and depressive symptoms secondary to his accident, and that he was psychologically unfit to perform duties outlined in the return to work program dated 16 August 2010.
47 At the request of his solicitors, the plaintiff was examined for medico-legal purposes by Dr Albert Kaplan, psychiatrist. I note that, to Dr Kaplan, the plaintiff described the pain which immediately followed the incident as being in his right shoulder and between his shoulder blades. Dr Kaplan diagnosed an adjustment disorder with mixed anxiety and depressed mood but felt that it was likely that the plaintiff’s pain and loss of earning capacity was related to his physical injuries. He felt that the prognosis for the plaintiff’s psychiatric condition would be determined by the outcome of his physical condition.
48 The defendant organised for the plaintiff to be seen by Dr Richard Prytula, psychiatrist. He also diagnosed an adjustment disorder with depressed mood consequent upon the physical injury but did not believe that the plaintiff’s psychiatric condition resulted in any limitation of his daily activities.
49 In relation to my findings concerning the injuries suffered by the plaintiff, I shall deal first with the physical injuries. As stated, I reject the diagnosis of Dr Sheriff insofar as it is based upon aponeurotic layers and “little bleeds”. I accept what I find to be the clear weight of medical opinion to the effect that the injury suffered is soft tissue or musculoligamentous in nature. It could be described as a strain as per Dr Clayton Thomas; musculoligamentous as described by Mr Mangos; or a soft tissue injury as described by Dr Asthana (other doctors have described the injury as being a muscle strain or a soft tissue strain – namely Dr Fraser, Dr Baker and Dr Ho).
50 Mr Jones was at a loss as to how to diagnose an injury concerning which he seems to have had considerable doubts. Dr Courtney, who also treated the plaintiff, has referred to posterior muscle pain, whilst Mr Khan, who also treated the plaintiff, diagnosed a musculoskeletal ligamentous strain to the cervical and thoracic spine but with some evidence of mild pre-existing degenerative changes which had flared. This last part of his diagnosis is not one shared by others, with the exception of Mr Kossmann. Whether or not she was a treating doctor, Dr Sutcliffe diagnosed a muscular tear and musculoligamentous injury to the thoracic area. Mr Kossmann diagnosed discogenic pain with degenerative changes and musculoskeletal pain in the upper extremities.
51 I am also of the view that there was some exaggeration, whether conscious or unconscious, by the plaintiff of his symptoms. There are variations in the locations where symptoms have been felt, at one stage the low back being the main source of pain. Perhaps the most consistent complaint relates to the right upper thoracic area, although complaints in relation to shoulder pain vary. The surveillance, whilst not dramatic, certainly reveals a presentation different to that seen by some of the medical examiners and revealing a considerably greater appearance of normality than what was seen in the witness box.
52 In relation to the plaintiff’s mental injury, I accept the views of Drs Kaplan and Prytula that the plaintiff has suffered an adjustment disorder with some depression. I also accept that this disorder is essentially tied to the plaintiff’s physical condition.
53 I have already expressed my view in relation to whether the injury is in the nature of an aggravation and if so what must be considered. Whilst there is some limited support for the physical injury being, in part, the aggravation of pre-existing degenerative changes, it is not the conclusion at which I have arrived. In any event, insofar as the injury is in the nature of an aggravation, it is the aggravated condition and its consequences which I shall consider. I do not consider the mental injury to be in the nature of an aggravation.
54 I have considerable doubts as to whether the plaintiff has discharged the burden of proof in relation to the permanence of the consequences of either injury. Indeed, I am not satisfied in this regard. I shall return to a discussion of this in my ruling.
55 As is apparent from the above, I have endeavoured to separate the two injuries for the purposes of s.134AB(38)(h) and (i). The separate assessment of them shall continue.
(iv)
The plaintiff’s employment, training and other developments since the injury
56 The course of the plaintiff’s medical treatment following the injury has been described above. What occurred in relation to ongoing work is more difficult to ascertain. It would seem that the plaintiff was absent from all duties until 15 December 2008. This is the history taken by Dr Baker and seems to accord with that recorded by Dr Asthana. Dr Asthana’s report would indicate that the plaintiff recommenced work four hours per day, three days per week on light duties, with no bending and a restriction on lifting. He continued to experience pain, and to take some time away from work. Mr Khan, reporting on 17 February 2009, stated that the plaintiff was working in alternative duties three days a week, four hours a day, whereas Dr Asthana records a total of nine hours per week. In June 2009 Dr Clayton Thomas recorded that the plaintiff was working full-time on light duties. When seeing Dr Baker on 2 November 2009, the plaintiff was working 24 hours per week (six hours by four days) delivering files, pathology reports and blood samples. On 7 April 2010 Mr Jones took a history that the plaintiff had been able to achieve 24 hours per week in the medical records department but then returned to the accident and emergency area of the hospital where he did very little. At that time he was still a hospital employee, but had been told in November 2009 that the hospital had nothing suitable for him and that he should not return to work until his back had improved. The plaintiff has not returned to work with the defendant since approximately 21 November 2009 although numerous return to work plans have been suggested.
57 Many of the return to work plans relate to the period prior to 21 November 2009. As far as I can ascertain, there were a considerable number of these, possibly approaching 20. There have been a number of subsequent plans and offers of “suitable duties”. For example, a proposed plan of 22 September 2010 involved the plaintiff working three hours on a Monday, Wednesday and Friday, doing administration tasks as required and transferring medical records (not to exceed 5kg) on a trolley provided. An earlier proposal based on 12 hours per week but including “sitting with specialled patients” had been deemed unacceptable by Dr Sheriff because of the nature of those patients, although other aspects of the offer involving office duties and the handling of medical records were “okay”.
58 A further offer was made on 12 October 2010, this involving administration tasks dealing with medical records. The proposed work involved the putting together of files of medical records and the transferring of them to the trolley provided, there being no requirement to handle weights greater than five kilograms. The history given by the plaintiff to Mr Jones when he saw him on 11 November 2010 was that Dr Sheriff had “vetoed” this proposal on the grounds that it was completely unsuitable for the plaintiff, and Mr Jones formed the view that such veto was inappropriate. It seems that Dr Sheriff continued to certify the plaintiff as being completely unsuitable for any employment. Given that Dr Sheriff, only two months previously, had indicated that the handling of medical records and office duties were “okay” for the plaintiff, it is hard to understand why an offer based upon these duties should then be “vetoed”. However, I am satisfied that this is what did occur. I shall return to this when the issue of capacity is discussed.
59 A further and identical offer – the same involving administration and the handling of medical records, and commencing on the basis of nine hours per week – was made on 22 November 2010 and again on 16 December 2010. In relation to this offer, Dr Sheriff returned it with the following note, dated 22 December 2010, written upon it:
“Remains unwell with his spinal pain. Difficulty coping +
depression. He remains unfit for any work.”
60 From the evidence, I would understand the offer of 16 December 2010 to be the most recent job offer. The plaintiff remains an employee of the defendant. It is not suggested that he has worked elsewhere. There is no evidence of the plaintiff engaging, or refusing to engage in, retraining courses or the like.
Ruling 61 I shall deal with the injuries separately.
(a) The plaintiff’s physical injuries (i) Pain and suffering damages 62
The plaintiff has failed to discharge the burden of proof in relation to pain and suffering damages when the consequences of injury are viewed on their merits. In other words, leaving to one side the issue of pecuniary loss damages and the effect of the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdul [2009] VSCA 170, the plaintiff has failed to establish that the pain and suffering consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, could be fairly described as being more than significant or marked and as being at least very considerable. He has also failed to establish the permanence of any impairment or loss of a body function.
63
I have arrived at this conclusion for the following reasons which are not listed in order of importance or significance:
(a)
The injury is in the nature of a strain or soft tissue, muscular injury to the right side of the upper thoracic spine. I am far from convinced that radiography has demonstrated any pathology of significance. Of course, the fact that the injury is of a strain or soft tissue type is not the end of the matter. However, it is a factor to be considered.
(b)
The amount of treatment which the plaintiff has had, particularly of recent times, is not great. The same could be said of his level of medication. The plaintiff has had little specialist treatment. He saw Mr Khan twice. Mr Khan was of the view that there is no indication for surgical intervention and referred the plaintiff to Dr Clayton Thomas, consultant in pain management and rehabilitation medicine. As far as I can ascertain, Dr Clayton Thomas saw the plaintiff on one occasion only and referred the plaintiff to Dr Peter Courtney. Incidentally, Dr Thomas was of the view that plain x-rays, CT scan and MRI all showed no abnormality. Dr Courtney saw the plaintiff on two occasions only, and has not seen him since 21 July 2009. On the occasion of the first consultation, Dr Courtney injected the para spinal muscles on the right. When he reviewed the plaintiff four weeks later, the history was of a short term reduction in pain. Dr Courtney contemplated a pain management program, a gymnasium program and facet blocks. At this stage funding was not forthcoming as the plaintiff’s claim for statutory benefits had been terminated. The other specialist to whom the plaintiff has been referred is Mr Mangos, who saw him once in September 2010 and expressed the view that there was no serious injury present. He expressed an opinion only and neither gave nor recommended any treatment. Whilst there was mention of the plaintiff being referred to Dr Helen Sutcliffe, the more one examines her report, the more apparent it is that it is in the nature of a medico-legal report. Clearly it seems to have been the impression of Dr Sutcliffe that she was examining the plaintiff for medico-legal purposes. Certainly she provided no treatment and gave no advice in respect of any. Apart from visits to Dr Sheriff (whose notes do not seem to record any actual examination of the plaintiff since 14 May 2010), the plaintiff’s current regime of treatment would appear to be a visit to an osteopath every three weeks, and he has also begun a “swim/gym” program. The medication that he takes is a very modest amount of non-prescription analgesia, and not necessarily on a daily basis. Again, the level of treatment is not conclusive as to whether the statutory requirements have been met but is a factor to be considered.
(c)
I am of the view that there is some exaggeration, whether conscious or unconscious, by the plaintiff in relation to his symptoms. This is the view of Dr Fraser and Mr Jones and, in this instance, it is a view which I share. The plaintiff has described a considerable number of symptoms, some of which would appear to have no anatomical connection to the injury in question, and some of these he has described in graphic terms. For example, when complaining of paravertebral muscular tenderness on the right extending from just below the angle of the scapula to the dorsolumbar junction, the plaintiff was recorded by Dr Fraser as saying it was “like there is a great big sausage in there that’s twisted … it takes a lot of energy out of me, like a vampire sucking blood out of me”. Upon examination, movements of the cervical spine were not restricted or painful, and neither were shoulder movements. To Dr Sutcliffe the plaintiff described constant pain of varying intensity in the area of the medial aspect of the right shoulder blade and also in the corresponding area on the left. On examination, this taking place on 1 December 2010, he had a full range of movement of the left shoulder with restricted range of movement on the right. By way of contrast, when Mr Mangos saw the plaintiff on 13 September 2010, the plaintiff did not appear to be in discomfort or pain and the shoulders moved through a full painless range of movements. In addition, as previously stated, the plaintiff has made complaints concerning various parts of his body, some of which seemed to have no anatomical connection to the part of the body which he states was injured and upon which reliance is placed.
When Mr Jones first saw the plaintiff on 3 June 2009 signs of disability were minimal and a full range of movement was noted in the shoulders. The main source of discomfort was said to be the right scapular area. However, when the plaintiff was seen by Mr Jones on 7 April 2010, the plaintiff complained of pain if he abducted his arms past 90 degrees, whereas previously there had been a full and painless range of elevation.
(d)
I am not satisfied that consequences sufficient to satisfy the statutory requirements will continue permanently, that is, for the foreseeable future. I am not satisfied that the plaintiff has a serious impairment or loss of a body function which is permanent. The only clear opinion as to prognosis expressed by Dr Asthana, the original treating general practitioner, was in his report of 6 December 2010. In that report, he stated that in his view the injury was not serious and that, in due time, the plaintiff would recover. His subsequent opinion, expressed briefly, as to the plaintiff’s capacity for work contains no clear statement as to permanence, and does not modify the view previously expressed in that regard. Mr Mangos, the last specialist to whom the plaintiff was referred for an opinion other than for medico-legal purposes (and I leave to one side Dr Sutcliffe whose report seems to me to be clearly of a medico-legal nature) is that there is no serious injury present; the longer the plaintiff stays out of work the harder it will be; and Mr Mangos referred to the “medico-legal vortex”. The evidence of the current treating general practitioner, Dr Sheriff, was generally unimpressive, but he expressed concern more about the plaintiff’s psychological state than his physical condition. Much of his oral evidence concerned the plaintiff’s capacity for employment, but he agreed with the proposition that the plaintiff could slowly build up more and more hours in that regard as his tolerance increased, which in turn reflects upon the permanence of the plaintiff’s situation. Dr Sheriff also did not seem to be completely aware of the fact that the plaintiff had commenced a “swim gym” program, being something which he had recommended and which he seemed to feel would have a beneficial effect.
Amongst the medico-legal examiners, a variety of opinions in relation to permanence exists. Both Dr Sutcliffe and Mr Kossmann expressed the view that the plaintiff would be permanently unfit for all his pre-injury employment, whilst examiners on behalf of the defendant, such as Dr Fraser and Mr Jones, felt that there was no organic basis for the symptoms experienced or that no diagnosable condition existed. Dr Brown was of the view that the prognosis was one for full recovery with an appropriate exercise program, and the plaintiff is now undertaking his “swim gym” program.
(e)
The video surveillance shown of the plaintiff shows a person who, whilst not digging ditches or engaging in strenuous physical activity, appears to be moving in a normal fashion. As I have said in other cases, the value of surveillance material depends heavily upon evidence and presentation by the particular plaintiff. A film of a person running can be effectively of minimal value if that person tells medical examiners and the court that running is his regular pastime. A film of a person walking can be devastating if such person presents and gives evidence to the effect that he or she is confined to a wheelchair. In my opinion the range of movements demonstrated by the plaintiff in the witness box, and when asked so to do, was very restricted. This is contrasted noticeably with what was shown on the video material when the plaintiff, whilst not shown engaging in particularly demanding tasks, was going about his everyday activities. The surveillance material was not of such a dramatic impact as to be decisive, but, when compared with the plaintiff’s presentation in court, is another factor to be taken into account.
(f)
Further, and whilst it is by no means definitive, the plaintiff is a 32 year old man, described in some medical reports as being muscular or strongly built (and certainly being of that appearance), who has suffered a strain or soft tissue injury. True it is that such an injury may produce permanent consequences or impairment. However, bearing in mind my view as to some exaggeration on the part of the plaintiff, and factors such as his age, his build and the nature of his injury, and when then adding the views of treaters such as Dr Asthana and Mr Mangos combined with the comparative dearth of specialist treatment and medication, the conclusion which I have reached is that permanence of consequences or serious impairment or loss of a body function has not been established to the requisite level.
64 In summary, I am not of the view that the plaintiff has discharged the burden of proof in relation to the pain and suffering consequences of injury and impairment from which he claims to suffer as a result of his physical injuries.
(ii) Pecuniary loss damages 65 I am of the view that the plaintiff has failed to discharge the burden of proof in relation to his application for leave to seek damages for loss of earning capacity. I have come to this decision for the following reasons.
66 I have found that the physical injury suffered by the plaintiff is in the nature of a strain or a soft tissue injury. He is aged 32 years. I am far from satisfied that the injury sustained and the symptoms and consequences arising from it will impact adversely upon the plaintiff’s earning capacity to the required extent for the foreseeable future. In other words, in accordance with s.134AB(38)(e)(ii), I am not satisfied that henceforth the plaintiff will continue permanently to have a loss of earning capacity which would be productive of financial loss of 40 per centum or more.
67 The plaintiff has not discharged the burden of establishing the loss of such earning capacity or its permanence. There is no clear statement by any medical practitioner that the plaintiff is permanently unfit to re-enter the workforce by reason of his physical injury. The highest that it can be put is that the plaintiff is permanently unfit for unrestricted full-time manual work or his pre-injury employment (Dr Sutcliffe and Mr Kossmann). Frankly, I do not accept that view. I would point out that Mr Mangos, reviewing the plaintiff at the request of Dr Sheriff, expressed the opinion that the plaintiff’s injury was not serious, with very little signs in the neck and a slightly reduced range of movements, whilst examination of the thoracolumbar spine revealed some restriction of movements. Mr Mangos does say that the plaintiff would be best advised to forget about returning to heavy work, but states this in the context of the plaintiff being “in for medico-legal vortex”.
68 Dr Asthana, the original general practitioner, in his report of 6 December 2010, stated the following:
“Mr Khan is also of the opinion that he has soft tissue injury of his spine and shoulder and that it is not a serious injury and in due time he will recover and start doing his pre-injury work. He is the treating specialist of Sam and therefore I would go along with his opinion, and that he will recover soon and start his pre-injury work.”
69 As the above is not contained in the letter of Mr Khan to Dr Asthana of 17 February 2009, I can only assume that this was an opinion otherwise relayed by Mr Khan to Dr Asthana. Of course, Dr Asthana wrote a brief further report saying that he was happy to go along with Mr Khan’s opinion that the plaintiff had soft tissue injuries to the spine and shoulder and that such injuries prevented him from performing pre-injury employment or full-time unrestricted manual labour type of work. Whether he considered that to be a permanent situation is not clear. The report of Mr Khan to the plaintiff’s solicitors of 8 September 2009 is specifically confined to the physical aspects of the injury as at 1 May 2009 and contains no clear statement as to permanence.
70 Furthermore, apart from the issue of permanence, it does not seem to me that the plaintiff has established that the required loss of 40 per centum or more exists, bearing in mind that what is to be tested is what the plaintiff is or would have been capable of earning. In this regard, it is to be borne in mind that the plaintiff remains an employee of the defendant, which has offered him numerous return to work plans. In those circumstances and at least for the moment, consideration of alternative employment with other potential employers can be left to one side.
71 After the injury and prior to November 2009, the plaintiff had advanced to a situation where he was working 24 hours per week in the Medical Records Department with the defendant. (Indeed, Dr Clayton Thomas has recorded that the plaintiff was working full-time.) There is no suggestion that, after the accident and when he was engaged on light duties, the plaintiff’s basic rate of pay differed from the rate of pay which he would have received had he continued in his previous duties. The plaintiff has stated that it is his intention to return to fulltime work – see transcript 63. He agreed that he saw himself as going back to the workforce, starting out slowly, and “building and building on that” – see transcript 61. He also emphasised several times that he had not looked for alternative employment because he was still employed by the defendant – see transcript 74. Whilst in re-examination he agreed that he could probably not do more than 15 hours per week, I do not see why this is so. The plaintiff was working at least 24 hours per week prior to the light duties in question becoming no longer available. How long he had been doing this is not entirely clear. The plaintiff claims that he complained to Dr Asthana that the hours were getting a little bit too long and that he was “getting very sore”, but there is no reference to this in the quite detailed report of Dr Asthana of 6 December 2010. There is reference to him continuing with light and restricted work. When it was put to the plaintiff that he had been performing the restricted duties 24 hours per week for a period of months prior to November 2009, he could not remember for exactly how long this had been so. The various work health plans put in evidence first refer to 24 hours per week starting 21 September 2009. The duties to be performed were that the plaintiff was to be based in the Emergency Department where his work would involve sitting with “specialled” patients, transferring medical records of no more than three kilograms and performing administration tasks and patient observer tasks as required. I note that, as at 12 October 2009, the number of hours referred to was 28 and for the weeks commencing 9 November 2009 and 16 November 2009 the total number of hours per week referred to is 32. However, in cross-examination it was not suggested that the plaintiff had in fact worked either 28 hours per week or 32 hours per week. The medical evidence does not persuade me that the plaintiff could not perform at least light duties on a fulltime basis with the defendant. He sees himself as “building and building” on the number of hours worked with the intention of working fulltime and this seems to me to be perfectly feasible. Even if he engaged in a return to work plan with the defendant on a “graduated hours” basis, I see no reason why he could not perform suitable duties on a full-time basis within the foreseeable future.
72 I was not particularly impressed with Dr Sheriff’s evidence about a possible return to work by the plaintiff. Essentially he agreed that, as at August 2010, he had stated that the plaintiff would be able to cope with a return to work program on a physical basis and that the plaintiff’s condition had remained much the same. He referred to anti-depressant therapy and the like. He also expressed his concern as to whether the plaintiff would be able to sustain a return to work program, but his evidence in this regard was somewhat confusing. I would refer to the following answers at page 110 of the transcript:
“… Yes, not that the medical records – it’s light enough for anyone to cope, but that he would be able to sustain himself ongoing without interfering with the return-to-work program, so that we build up his hours and build it up to normal hours.
Are you saying that if there’s a concern about the long-term sustainability of the return-to-work program it’s better not even to start it? Is that your view?---Not necessarily, but I thought in his particular case because of his being unwell for a long period of time, and his ongoing mental state, that everything without reason is done for him to help him facilitate the return to work. So that he goes there, not just stay there for one day and then come back, so that we’ve got enough support services put in place …”
73 Some further evidence that was not entirely clear was given, but, as set out above, a build-up to normal hours of work seems to have been contemplated. In re-examination, Dr Sheriff again expressed the view that he was not very optimistic that the plaintiff would have the ability to sustain any form of employment long term, but prefaced that by saying, “If my diagnosis of the nature of the injury is correct, and if it is aponeurotic layers that the injury has caused, it’s a kind of chronic problem …”. As earlier stated, the evidence put before me in relation to that particular diagnosis is, at best, thin, and I do not accept it.
74 If the plaintiff has, or will have, in the foreseeable future the capacity to engage in light duties with the defendant on a fulltime basis, and I am satisfied that that is the position, the requirements of s.134AB(38)(e) and (f) would not be satisfied. As mentioned earlier, there is no suggestion that the rate of pay with the defendant for restricted duties would be any different from the rate of pay which the plaintiff would receive had he not been injured. If one took the plaintiff’s earnings as at the date of injury and as claimed in his claim form of 6 October 2008 as representing his “without injury” earnings (including overtime, although it was argued that this varied greatly and was not a fair reflection of capacity), the figure obtained would be $1,157.50 including overtime and shift allowance. If it were considered that the figure for overtime should be included in “without injury” earnings but excluded from “after injury” earnings on the basis that the plaintiff could only work “normal” hours, the drop in gross income would be the overtime component of $317. This would be a financial loss of a fraction over 27 per cent, and, of course, such percentage loss would remain the same if the figures were annualised. Further, that calculation assumes that the defendant’s argument in relation to overtime is unsuccessful. There is no evidence to suggest that the plaintiff has an incapacity which in some way restricts him in relation to shifts and that a shift allowance would no longer be payable.
75 It also seems to me that s.134AB(38)(g) operates to the detriment of the plaintiff. I am far from satisfied that he has made reasonable attempts to participate in alternative employment or additional employment which attempts, if exercised, would result in him earning more than 60 per cent of gross income in accordance with s.134AB(38)(f). The defendant has put to the plaintiff numerous return-to-work plans, work health plans and offers of suitable duties. By my reckoning there have been at least ten of these since November 2009. Further, when Dr Sheriff noted on a plan that the plaintiff could not be based in the Emergency Department and should not sit with “specialled” patients but that the handling of medical records and performing of office duties was “okay”, the work offer was then varied so that the plaintiff was based in medical records, performing administration tasks and tasks to do with those records, and not sitting with special patients. Nevertheless, whether on medical advice or not, the plaintiff did not return to work. Participation in such plans with the appropriate building up of hours to normal, fulltime employment, even if only on light duties, would have resulted in the plaintiff earning more than 60 per centum of his “without injury” earnings.
76 Thus, in my opinion the plaintiff has failed to discharge the burden of proof in relation to economic loss because of a failure in relation to permanence; establishment of the required financial loss of 40 per cent or more; and by reason of the operation of s.134AB(38)(g). By reason of the figures associated with the plaintiff’s employment with the defendant and as set out above, and bearing in mind that he remains an employee of the defendant and is not looking for alternative employment because he is still such an employee, there is no need for me to consider some of the alternative employment options which have been suggested.
(b) The plaintiff’s mental injury 77 At the commencement of the case it was stated on behalf of the plaintiff that the emphasis would be placed upon sub-paragraph (a) rather than sub- paragraph (c) of the definition of serious injury. Nevertheless, having dealt with the physical injuries separately, I will now turn to the mental injury. I am of the view that the plaintiff has failed to discharge the burden of proof in relation to both pain and suffering damages and pecuniary loss damages in relation to such injury.
78 True it is that Dr Sheriff has implicated, and indeed put some considerable emphasis upon, the plaintiff’s mental condition as posing a difficulty in relation to a possible return to employment. In addition, it is apparent that the plaintiff has been seeing a psychologist, namely Mr John Karamanos, every three weeks, this being on the referral of Dr Sheriff. However, exactly what liaison has occurred between Dr Sheriff and Mr Karamanos is a little difficult to ascertain (pages 106 and following of the transcript). In addition, the plaintiff takes medication for depression. However, even bearing these matters in mind, it seems that he falls a considerable distance short of satisfying the more stringent requirement of severity which must be met in applications based upon mental or behavioural disturbances or disorders.
79 The plaintiff has been seen by two consultant psychiatrists for medico-legal purposes (it would not appear that he has had a treating psychiatrist). At the request of his solicitors, the plaintiff was examined by Dr Albert Kaplan on 20 December 2010. In addition to noting that the plaintiff presented as a tall and strongly built man, Dr Kaplan formed the view that the plaintiff was preoccupied with his injuries and their impact upon his lifestyle, but otherwise displayed no abnormalities of speech, thinking or perception. The plaintiff was despondent and at times became tearful, and expressed intense frustration about his injuries and their impact upon his life. Dr Kaplan diagnosed an adjustment disorder with mixed anxiety and depressed mood. He further stated that the prognosis of the plaintiff’s psychiatric condition would be determined by the outcome of his physical condition, also expressing the view that the plaintiff’s pain and loss of earning capacity were related to his physical injuries. Whilst stating that the plaintiff’s psychiatric condition has had a major impact upon his social life and his capacity to gain enjoyment from life, Dr Kaplan repeated that the plaintiff’s capacity for employment and his ability to remain in it would be largely determined by his physical condition.
80 The defendant arranged for the plaintiff to be examined by Dr Richard Prytula on 26 October 2009. He diagnosed an adjustment disorder with depressed mood. Whilst he was concentrating to a considerable extent upon an assessment of permanent impairment pursuant to the AMA Guides, Dr Prytula also made the following observation:
“He has developed feelings of anger, frustration and depression. He has mild symptoms of an Adjustment Disorder with Depressed Mood.”
81 Dr Prytula also expressed the opinion that the plaintiff’s psychiatric condition did not result in limitation of his daily activities.
82 Whilst, as previously stated, I am satisfied that the plaintiff has suffered an adjustment disorder with some depression and that it is essentially linked to his physical condition, it seems to me that the plaintiff has fallen well-short of establishing that the condition which he has is severe. I would refer again to the opinions of the consultant psychiatrists set out above. In addition, and whilst Dr Prytula was prepared to make a modest assessment of permanent impairment, in my view a substantial question mark also hangs over the issue of permanence. The prognosis for the mental condition is linked to developments in relation to the physical injury. I have already expressed my views as to that, not being satisfied that permanence has been established.
83 In addition to the plaintiff not discharging the burden of proof in relation to the required severity of any mental or behavioural disturbance or disorder, the failure to establish permanence in relation to the mental injury is fatal to the application both in relation to pecuniary loss damages and pain and suffering damages. Furthermore, and particularly bearing in mind that I am of the view that the symptoms relating to the mental condition are, in essence, inextricably woven with the physical injury and its symptoms, the observations which I have already made in relation to earning capacity are again applicable. The plaintiff’s capacity to perform at least light duties full-time with his employer is not damaged by any separated consideration of the mental disorder and I have already referred to the calculations of financial loss which result from that finding. Section 134AB(38)(g) also continues to apply.
84 In summary, the plaintiff has failed to satisfy the requirements of s.134AB(38) in relation to the mental behavioural disturbance or disorder from which he suffers.
Conclusion
85 The plaintiff is unsuccessful. He has failed to discharge the burden of proof in regard to both pecuniary loss damages and pain and suffering damages. That is so in relation to both his physical and mental injuries.
86 I shall hear the parties as to any ancillary orders that are required.
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