Re: Ilir Sadiku v Trussmakers (Vic) Pty Ltd (WorkCover)
[2015] VMC 20
•26 JUNE 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION No E13158593
BETWEEN:
ILIR SADIKU Plaintiff
-and-
TRUSSMAKERS (VIC) PTY LTD Defendant
MAGISTRATE: GINNANE
DATES HEARD: 30 APRIL & 1 MAY 2015
DATE OF DECISION: 26 JUNE 2015
WHERE HEARD: MELBOURNE
APPEARANCES Counsel Solicitors
For the Plaintiff Ms A Sheehan Patrick Robinson
& Co
For the Defendant Mr Makowski Russell Kennedy
REASONS FOR DECISION
Catchwords: Accident Compensation Act 1985 – application to review decision to terminate weekly payments of compensation – allegation of mental and psychological injury arsing from unprovoked physical assault at work – denial of present inability arising from injury to return to pre-injury employment – assailant summarily terminated – associated symptoms of PTSD inhibiting return to former place of employment – admission by defendant of physical and functional ability to perform all parts of employment otherwise than with defendant – discussion of Kerridge v Monsfelt Pty Ltd [2009] VCC 154 and Hewitt v Southern Health [2013] VCC 1247 – employment broader concept that mere locus –application dismissed
HIS HONOUR
The plaintiff is a 24-year-old man. He lives at home with his family. He was employed by the defendant since about September 2012. He worked as a trussmaker. At the date of hearing he remained an employee of the defendant. He came to the job via Matchworks, an organisation that seeks to place persons in receipt of Centrelink benefits into employment.
On 17 March 2014 the plaintiff was the subject of an unprovoked assault at work by a colleague. The occurrence of the assault is not disputed by the defendant. The plaintiff was punched twice and he suffered injury. That he suffered injury is also not disputed by the defendant. He was taken to Northern Hospital. He was treated for his injuries including the necessity to receive stitches to his lip. The assault occasioned significant damage to his teeth. He was provided with a certificate of capacity declaring him unfit for the period 17 to 23 March 2014 inclusive.
Although he was not rendered unconscious by the assault, the plaintiff said in his evidence that he was significantly distressed by the attack and that his principal concern in the aftermath of the event was for the integrity of his teeth. The plaintiff’s account of his reaction to the assault is entirely understandable.
The defendant admits that the plaintiff suffered an injury that amounts to a work injury for the purposes of the Accident Compensation Act (1985) (the Act) and that he was incapacitated for employment from the date of the assault but not beyond 1 June 2014. Furthermore, it contends that the plaintiff has a capacity to perform his preinjury duties with his employer or with an alternative employer and that he is no longer suffering from any compensable injury within the meaning of the Act.
The applicant reported the assault to the police but no action has been taken against the assailant. The plaintiff has not made any application for compensation under the Victims of Crime Assistance Tribunal Act and he said that he had not made an application for a Personal Safety Intervention Order under the governing legislation that provides for the same.
The aftermath of the assault
On 18 March 2014, the day after the assault the plaintiff saw his general practitioner Dr Baglar.
The plaintiff said that in the week following the assault he experienced a number of different emotions including depression, hyper vigilance and paranoia. The plaintiff also said that his sleep was disturbed and he experienced nightmares.
On 14 April 2014 the plaintiff was examined by Dr Triggs, Consultant Psychiatrist at the request of the defendant’s authorised insurer for an independent medical examination. She detailed the circumstances of the assault at work as described to her by the plaintiff. The plaintiff told her that he had only a vague understanding of any reason that could have prompted the assault. He explained that he was shocked and confused by the actions of his colleague and he could not understand it. He said that he did not socialise with any of his co-workers as he has his own friends. He expressed anxiety about returning to work for fear that he may come in contact with his assailant who lives in the same area as the workplace. He reported going to bed at 10 pm and waking at about 9 am. He told Dr Triggs that he felt somewhat depressed at times about what had happened and that he felt ashamed. He reported a few nightmares about the incident and in his dreams he would see his assailant’s face. He said his concentration was not as good as it was before the incident. He said he regularly checked surveillance camera footage at his family home. As to limitations on activities as a result of the assault he said he felt anxious to leave the house. On mental status examination there was nothing untoward and Dr Triggs commented that his thinking concerned returning to work and encountering his assailant although the plaintiff understood he no longer worked for the defendant.
Dr Triggs reported that the plaintiff comes from a family who is very security conscious. At the time of her report, Dr Triggs noted that the plaintiff had not been referred to counselling and was not on any antidepressant medication. The plaintiff’s evidence in the proceeding was that he had not been prescribed anti depressant medication.
The plaintiff told Dr Triggs that the workplace had been supportive and there had been no name-calling or swearing or any untoward activity.
Dr Triggs diagnosed the plaintiff as suffering from symptoms of traumatisation but she did not believe he was suffering a psychiatric illness. She did not believe he required any particular treatment and she believed that the sooner he was helped to return to work the better. Dr Triggs did not believe the plaintiff required further examination or any psychological treatment. She did not believe he was suffering incapacity.
On 29 April 2014 the plaintiff saw Dr Baglar and a possible return to work was discussed but according to the report from Dr Baglar the plaintiff said that the very idea of it brought on palpitations. He said that in his dreams he would see the face of his assailant coming at him. He said he was frequently checking CCTV security cameras that coincidentally had been installed at his family home prior to the assault.
The plaintiff said that Damian, his boss at work, had telephoned him on perhaps three or four occasions enquiring about his condition and welfare. The plaintiff was not in any way critical of his employer or the workplace.
On 2 May 2014 Laura Hodgson, a ‘Return to Work Specialist’ employed with Allianz Australia, wrote to Dr Baglar. She noted that based on the provision of the report from Dr Triggs, the insurer ‘will not be accepting a psychological condition’ as part of the plaintiff’s WorkCover claim. She also said that she wished to clarify whether the plaintiff is currently suffering from any physical incapacity and, if this was the case, requested that Dr Baglar provide details of the same and advise how this was impacting on his ability to return to work. She added that if the plaintiff was not suffering from any physical incapacity, ‘I would like to request you please issue Mr Sadiku with a certificate of capacity stating if fit to return to work.’
Dr Baglar took exception to the correspondence and what he interpreted to be the author’s meddling in matters of medicine and on 5 May 2014 he replied to Ms Hodgson and said that the insurer could not dictate to him what he wrote on a medical certificate and that the psychological aspect of the plaintiff’s trauma was not a consequential effect of his physical trauma but that his anxiety and adjustment disorder was part of his primary injuries.
On 20 May 2014 at the request of the insurer the plaintiff was seen by Dr Lipp, a general medical practitioner. Dr Lipp detailed that the plaintiff suffered from a ‘complex of symptoms’ such a being fearful of leaving his house and of having interrupted sleep as a result of recurring nightmares. Dr Lipp diagnosed the plaintiff’s condition in the following way:
Mr Adiku [sic] presents with resolved facial trauma involving a deep laceration right lower lip and repaired fractured teeth. Mr Adiku [sic] also has symptoms referable to ‘Post Traumatic Stress Disorder’.
Dr Lipp went on and wrote that he thought the plaintiff’s symptoms of PTSD had ‘not as yet resolved’. Nonetheless, Dr Lipp reported that the plaintiff ‘is fit to return to his full time pre-injury duties’. He recommended that the plaintiff ‘should undertake appropriate psychological counselling and this should commence forthwith associated with his return to full time pre-injury activities. He concluded his report thus:
Mr Adiku [sic] is not having appropriate treatment currently and I would strongly recommend referral for a short course of Psychological Counselling of the order of 6 to 10 treatments.
On 27 May 2014 and following on the provision of Dr Lipp’s report, the insurer wrote to the plaintiff advising him that it had decided that from 2 June 2014 he would not be entitled to weekly payments because he was no longer incapacitated for work based upon the medical reports to date.
On 29 May 2014 Dr Baglar wrote to the insurer requesting approval for a referral for the plaintiff to a psychologist. The request by Dr Baglar was made after the insurer had notified the plaintiff of its decision to terminate weekly payments but before the decision took effect.
Subsequent to the defendant’s termination of the plaintiff’s weekly payments, and on 14 August 2014, he was examined by Dr Kaplan for the purpose of the provision of a psychiatric report. Dr Kaplan provided a report to the plaintiff’s solicitors dated 18 August 2014. He noted that Dr Baglar had recommended counselling “and he plans to pursue this treatment’. The plaintiff’s evidence in the proceeding was that he did not pursue counselling and did not feel the need to do so. Dr Kaplan wrote that the plaintiff explained to him that he had been shocked by the assault and ashamed it had happened. He told Dr Kaplan that he was suffering insomnia and has occasional nightmares about the event and the feels tired during the day. He has flashbacks of the assault. He said he avoids venturing outside into the area where the factory and his assailant’s home are located. He said that although Dr Baglar’s practice is located in the same area as the workplace he didn’t become anxious when he attended on him for consultation. He said he no longer goes to nightclubs as he had on occasions in the past. He said he could never return to work with the defendant. He said he has lost trust in the other employees and suspects that some comment might have been made about him to his assailant and that triggered the assault. He said he is less socially active than previously and that he prefers to be alone more than in the past and that he feels safe at home. He said his girlfriend was supportive. He said he spends his days watching television or reading and that he feels board at home. He said he had been applying for jobs and ‘believes that he is capable of returning to work’.
Dr Kaplan expressed the opinion that the description and range of symptoms ‘would probably qualify for a diagnosis of post-traumatic stress disorder. He describes intrusive thoughts, flashbacks and recurring nightmares regarding the assault, a heightened arousal, and avoidance features’. Although Dr Kaplan though it was difficult to predict the long-term prognosis of the plaintiff’s psychiatric condition, which he considered to be at a relatively early stage, he thought it likely the plaintiff would retain a heightened sense of vulnerability and that his symptoms are likely to persist for a prolonged period of time. He added that the plaintiff ‘has no capacity to resume his preinjury employment and any attempt to do so is likely to aggravate his psychiatric condition’. Dr Kaplan went on to say that, ‘it is difficult to assess his general capacity for employment, however he reports that he believes is capable of returning to work, and indeed has been applying for jobs and is therefore probably capable of commencing a return to work programme on a trial basis, working in a supportive and safe work environment. It is difficult to assess when he regained this capacity, however bearing this in mind, I would suggest that he regained his capacity to work over the past month or so’.
I take Dr Kaplan’s report to conclude that at most he regarded the plaintiff as having regained a capacity for commencing a return to work programme on a trial basis, working in a supportive and safe work environment and that such a capacity had arisen at an uncertain time but probably in or about mid July 2014.
Dr Kaplan concluded his report dated 18 August 2014 by identifying that the plaintiff ‘requires a referral to a psychologist for supportive psychotherapy and is likely to require a continuation of this treatment as long as he suffers from significant symptoms’.
On 22 August 2014 conciliation occurred in connection with the defendant’s decision to terminate the plaintiff’s weekly payments. The outcome certificate noted the existence of an agreement that, ‘medical and like services continue in accordance with the Act. The authorised agent has agreed to pay the reasonable cost of up to 10 psychology services’.
On 30 September 2014 the plaintiff commenced a Certificate Level 4 Building and Construction course that required him to undertake study three nights a week in Tullamarine. He said that he had intended to undertake this study before the assault. He denied the suggestion made by counsel for the defendant that he had a disinclination to return to work with the defendant in order to accommodate his study. In any event, the course was undertaken in the evening and not during work hours.
The plaintiff agreed with Mr Makowski that he had not been impeded in undertaking the course of study because of any physical effects from the injury. As well there was nothing to suggest that the plaintiff was impeded in his study because of any psychological effects of the assault by reason of the traits of the traumatisation identified by Dr Triggs or those associated symptoms of PTSD.
On 6 October 2014 Dr Baglar certified the plaintiff unfit for any duties to 4 November 2014. He described the plaintiff suffering an ‘Anxiety Adjustment Disorder’.
By further certificate dated 6 November 2014 and in respect of the period from 6 November 2014 to 4 December 2014, Dr Baglar reported that the plaintiff had a ‘capacity for suitable employment from 6 November 2014 to 04, 12, 2014’ and in that part of the certificate that inquired of the plaintiff’s mental health function, he wrote ‘Still moderately depressed due to his experience / fit to work with a new employer’.
The plaintiff said he has looked for work but that his search had so far proved unsuccessful.
On 10 November 2014 that is after the provision of Dr Baglar’s certificate the plaintiff saw Ms Aldogan, a psychologist for one session of counselling. Ms Aldogan said that the plaintiff told her that he was too embarrassed to return to his workplace; was experiencing depression and anxiety and had lost trust in people. She concluded her report as follows:
Given that Ilir only attended one session of psychological counselling; a formal diagnosis was unable to be made, however it is my professional opinion that Ilir’s psychological symptoms are in line with Post Traumatic Stress Disorder.
Dr Triggs furnished a second report dated 17 March 2015. She noted that since she had first seen plaintiff on 14 April 2014 he had undertaken a Certificate IV in Building Construction and was currently studying for his Diploma which involved 2 nights a week of study together with homework. Dr Triggs reported that the plaintiff had told her he that he had been looking for work on SEEK but felt he didn't want to go back to the defendant workplace.
As to his current symptoms Dr Triggs reported the plaintiff having told her that his mood had improved and his sleeping pattern was good. He did say nonetheless that ‘he is not quite back to his normal self emotionally and financially’. He said that he does not have any nightmares although occasionally he feels ‘unsettled’. He said he did not feel hypervigilant as frequently as he had and he was no longer avoiding the shops and that his confidence had built back up.
He said that although he had seen a psychologist once he did not want to go back.
He told Dr Triggs that his functioning was sufficient to allow him to drive and he said that he spends his time studying and doing homework and looking for work.
Dr Triggs reported a reluctance by the plaintiff to return to his workplace and she noted that it was not ‘particularly clear why he did not trial a return to work at the workplace’ however he did not ‘really want to’.
As to diagnosis, Dr Triggs restated the opinion she expressed in April 2014, which was that the plaintiff had suffered mild symptoms of traumatisation as a result of the assault but that he was not suffering a psychiatric illness. She thought that it was unclear why the plaintiff did not return to preinjury duties, but that it appeared to her that he had decided to undertake study instead. I am not satisfied that the plaintiff’s decision to undertake studies was at the expense of a return to his employment with the defendant. I also accept his explanation that he was concerned at the risk of humiliation if he returned to the workplace. Dr Triggs concluded her report by saying that it appeared to her that in the period of time elapsed since the injury the plaintiff’s likelihood of returning to his preinjury duties was negligible and that he had made a decision to retrain. She said that the plaintiff presented as a person with a capacity for preinjury duties and hours at another workplace. She also said that the plaintiff had a capacity for other suitable employment and reported that him as applying for a number of other jobs.
Dr Triggs second report does not identify when the plaintiff had ‘a capacity for pre injury duties and hours in another workplace’. This is explicable given the relief originally sought by the plaintiff was for a reinstatement of weekly payments on an ongoing basis.
The plaintiff was cross-examined by Mr Makowsi of counsel. The plaintiff could not explain the reason for the assault but agreed that it could have been prompted by him retrieving a tape measure that his assailant had taken from him earlier in the working day.
The plaintiff agreed with Mr Makowski that he attended on Dr Baglar on 18, 24, 25 and 27 March 2014, 29 April 2014, 23 May 2014, 5 June and 20 June 2014, and 6 October 2014. He disputed that he was ‘improving’ in April 2014 despite the frequency of his attendances on Dr Baglar decreasing after March 2014 and despite agreeing in response to questions from Mr Makowski that in April 2014 had a job as a trussmaker been offered to him elsewhere than with the defendant, he would have been physically and mentally capable of undertaking each process of the work. He agreed that it was not until 10 November 2014 that he felt that his condition was such to warrant being referred to a psychologist, despite the Outcome Certificate of Conciliation of 22August 2014 allowing him up to 10 psychological attendances. The plaintiff said there was a period in which Dr Baglar was on holiday. Furthermore, the plaintiff said that in any event, he was feeling ‘okay’ by that stage.
He rejected the suggestion made by Mr Makowski that his boss Damian had attempted to contact him on a number of occasions but that he had not responded. He said he had spoken to Damian whenever he telephoned him. He denied that any offer of a return to work having was made to him by the employer. The plaintiff specifically denied that he was asked to return to work in any telephone conversation he had with Damian. The defendant did not lead any evidence of the conversation and I accept the plaintiff’s account. The plaintiff said that he felt a bit uncomfortable talking to Damian but he could not explain in concrete terms why this was so. When pressed on the matter, he repeated his concern that generally he did not want to return to the defendant because of a fear of humiliation he might encounter from those of his fellow employees who had been at work and witnessed his assault. I accept the truthfulness of the plaintiff’s evidence that despite his assailant having been summarily dismissed by the employer, he felt concerned at the reaction of co-workers should he return to the workplace and the response this might engender in him. Such a reaction is I think explicable in terms of the symptoms the plaintiff had been reported to have experienced.
There was some difficulty in reconciling the evidence of the extent of the effects on the plaintiff of the assault. For example, the plaintiff accepted that as matters now stand, he sleeps well. He said that initially his lifestyle had been curtailed as a result of the assault and his interaction with his girlfriend in terms of their social life had been adversely affected for a time, but that it had started to get back to its current state of normality ‘approximately 5 months after the assault’, which would be sometime in August 2014. The plaintiff agreed that whilst he could go back to employment as a trussmaker he could not return to the defendant.
The breadth of the plaintiff’s claim
The plaintiff’s Statement of Claim sought the following relief:
An Order that the Defendant pay to the Plaintiff weekly payments of compensation at the rate appropriate for total and permnanent incapacity and/or no current work capacity from 2 June 2014 to date and continuing.
As already mentioned the relief sought by the plaintiff was curtailed when Ms Sheehan opened the plaintiff’s case. She said that the plaintiff’s claim for reinstatement of weekly payments was limited to a period no greater than November 2014 and that no claim was pursued for reinstatement of payments to date and continuing. The explanation offered is that the plaintiff says that by November 2014 he had a pre injury employment work capacity. Why the concession arose in November 2014 is inexplicable and it did not become clear in the medical evidence what if anything had altered by November 2014 as opposed to June 2014 to lead to this position save for the change in the certificate of Dr Baglar.
The Kerridge and Hewitt debate
The expression ‘current work capacity’ as defined by s 5 of the Act as applicable to this proceeding means:
current work capacity, in relation to a work, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
Did the plaintiff at the date of termination of weekly payments by the defendant on and from 2 June 2014 labour from a present inability arising from his work injury to return to his pre-injury employment? The defendant submitted that the plaintiff was able to return to his preinjury employment. It says that despite having suffered an injury in compensable circumstances, he was able to return to his preinjury employment from the date of Notice of Termination of weekly payments on 2 June 2014 and therefore he is unable to fall within the definition of ‘current work capacity’ for the purposes of section 90 3A and 90 3B of the Act.
The defendant’s submission is that the plaintiff's preinjury employment is to the type of or category of employment in which he was engaged and not his individual job. Thus pre-injury employment for the plaintiff means work as a trussmaker in a factory or the like working the suite of full time days and hours he did before the injury. Therefore, if the plaintiff has been fit to perform work, providing that it is not working with the person who assaulted him (and there was no possibility of that occurring due to the summary dismissal of his assailant), there will be no incapacity within the meaning of the Act.
The contrary argument as I apprehended the submissions made by Ms Sheehan is that preinjury employment means the very job which the plaintiff was performing at a particular location or with the particular cohort of employees and that as the plaintiff had continued to labour from a genuine apprehension about returning to that workplace after the date of Notice of Termination, and that preponderance of evidence did not suggest that he had a capacity to return to the particular place of employment, then I should conclude that he did not have a current work capacity and that this continued until November 2014.
The defendant submitted that the plaintiff’s application should be regarded governed by the decision of His Honour Judge Bowman in Kerridge v Monsfelt Pty Ltd [2009] VCC 154. The plaintiff submitted to the contrary and relied upon a decision also Judge Bowman in Hewitt v Southern Health [2013] VCC 1247 in which his Honour distinguished his earlier decision of Kerridge as applicable.
In Retallick v Lyndoch Warrnambool Inc (17 October 2007), His Honour Magistrate Wright was called on to determine whether the employer had taken reasonable action in a reasonable manner pursuant to s 82 (2A) (a) of the Act and in the course of his reasons for decision, His Honour said:
Also, there is very little argument as to the medical material in this case. The defendant has stated that any work-related incapacity was limited and plaintiff's counsel really did not argue strongly any incapacity beyond about July 2007.
I do not believe that in the context of this case a desire not to return to work at a specific place of employment amounts to incapacity as described in the Act. Overall on the medical evidence, especially that of the GP and Dr Van der Linden for the defendant, I accept that she was unable to return to any work as a result of her psychiatric injury until about 3 April 2007 when she did in fact return to work on at least half-time of another employer, Moran.
I do not regard Magistrate Wright to have attempted to pronounce a principle of general application but to sensibly recognise that each matter will need to be determined by the facts peculiar to a particular case.
This issue was also addressed by Judge Bowman in Kerridge v Monsfelt Pty Ltd [2009] VCC 0154. After dealing with the peculiar facts of the case, His Honour reflected upon the competing submissions made by the plaintiff and defendant. One submission made by the defendant was that any incapacity of the plaintiff had disappeared with the departure of Mr Watson (the impugned superior) from the defendant workplace. The medical evidence given by one of the doctors was that the plaintiff’s adjustment disorder did not prevent him from returning to work in a normal workplace. In the present proceeding the plaintiff acknowledged in cross examination that as far as he was concerned in April 2014 he could have physically and mentally undertaken the duties of his employment as a trussmaker at another employer doing precisely the same work as those performed with the defendant. This was described by Mr Makowski as ‘Trussmmakers Mark 11’. Of course no such entity exists but that is not to the point.
Returning to Kerridge, the defendant submitted that the definition of ‘current work capacity’ contained within s 5 of the Act warranted consideration to be given to the class of pre-injury employment (a tyre fitter) and not the specific employment at a particular place. The defendant argued before Judge Bowman that in accordance with Arnotts Snack Products Pty Ltd v Jacob (1985) 155 CLR 171 that when considering the meaning of ‘current work capacity’ or ‘partial incapacity’, what must be looked at is the class of pre-injury employment and that a desire not to return to work at a specific place of employment does not amount to incapacity as described in the Act. His Honour addressed the matter at [102] to [104] as follows:
Prior to payments being terminated, the defendant had also obtained a report dated 28 March 2007 from Dr Duke. His opinion at that time, and as repeated in his oral evidence, was based upon a history of perceived unremitting abuse and assaults by Mr Watson. The reason given to him by the plaintiff for cessation of work was the development of both psychological and physical problems. Dr Duke made the following observations:
"He is naturally unable to carry out his pre-injury job because he has been terminated".
And-
"Mr Kerridge cannot return to the workplace in which she was terminated. In my view, he does have a capacity to perform other sorts of work".
It is to be remembered that Dr Duke stated in his oral evidence that what he meant was that the plaintiff could not return to work with the defendant on commonsense grounds rather than psychiatric grounds, Dr Duke believing that the plaintiff’s employment had been terminated.
It seems to me that, even if the plaintiff’s evidence as to abuse and assaults by Mr Watson was accepted (and I do not accept the plaintiff’s version of events), and even if his basically unsubstantiated version of his medical treatment and the reason for it were accepted (and given that I do not find him to be a reliable witness, Ì have grave misgivings about such automatic acceptance) and even if his cessation of employment was directly related to a work-related injury (which may seem a doubtful proposition, but the admission of liability has to be borne in mind), the highest level at which he could place incapacity as at April 2007 would be that he was unable to return to his former place of employment but would be able to perform all of his pre-injury duties elsewhere. Indeed, this high point might be even more restricted. It may well be that his incapacity was specific not just to his former place of employment but to that place whilst Mr Watson remained there… Thus, even if the evidence on the behalf of the plaintiff referred to above was accepted, it seems to me that his incapacity as of April 2007 was properly confined to one particular workplace of the defendant was one particular individual remained there.
Does this level of incapacity attract payments pursuant to the Act after the date of termination? Viewed very technically, and in certain circumstances, an argument along these lines might be able to be advanced. In the present case, the high watermark of the plaintiff’s incapacity claim has already been described. In my opinion, that is not sufficient to attract ongoing weekly payments. The plaintiff was a tyre fitter. He remained fit to continue work as a tyre fitter. It seems to me that the decision of the High Court in Arnotts Snack Products v Yacob (1985) 155 CLR 171 assists the defendant rather than the plaintiff".
Furthermore and at [106] of Kerridge, Judge Bowman said:
There is no evidence to suggest that he developed either a physical or psychological sensitivity to work as a tyre fitter. He could still sell his labour on the open market as a tyre fitter. Any restriction which he had was confined to one particular place of employment with the defendant and, in my opinion, whilst one particular person was working there. That falls well short of the type of test applied in Yacob. There has been no meaningful restriction on the plaintiff’s ability to sell his labour on the open market or, indeed, in the field in which he had been working.
In Hewitt, Judge Bowman in reference to Kerridge said at [paragraph 88]:
Secondly, in Kerridge the treating general practitioner at an important and relevant time in relation to the case was not called to give evidence and no material was tendered from a hospital which the plaintiff alleged consent by the general practitioner. There was no such significant deficit in the evidence in the present case. Such evidence from anyone treatingMr Kerridge as was forthcoming did not greatly assist him. I also commented that the plaintiff's version of his medical treatment and the reason foreign for it was basically unsubstantiated.
In Hewitt Judge Bowman went to some length to identify many of the factual distinguishing features that underscored Kerridge none of which of such a character are applicable in this proceeding. Neither are the character flaws that underpinned the reliability and acceptance of the plaintiff’s evidence in Kerridge reflected in this proceeding. I found the plaintiff presented as an honest young man and one who frankly acknowledged that his restrictions were limited to returning to the defendant but that otherwise and certainly by June 2014, was a man who was capable of undertaking his employment generally.
Elsewhere in Hewitt Judge Bowman acknowledged that in Kerridge, ‘the view that I favoured was consistent with the proposition that the words, ‘pre-injury employment’ refer to the type or class of employment in which the injured worker was engaged.’
In my view I am satisfied that the preponderance of authority is that a present inability of a worker to return to his pre injury employment is not job specific as Ms Sheehan would have it, and I agree with Judge Bowman in Kerridge, that ‘pre-injury employment refers to the type or class of employment in which the injured worker was engaged.
I am satisfied and find that as at 2 June 2014 the plaintiff did not suffer from a present inability that prevented him from his pre-injury employment.
In the course of submissions by Ms Sheehan and by way of testing certain propositions advanced by the plaintiff, Ms Sheehan accepted that a restriction for preinjury duties on the basis of a loss of confidence is not compensable injury. I accept that in consequence of the plaintiff’s assault he suffered not just an inhibition or loss of confidence or a lack of desire to return to the defendant but rather he laboured from a diagnosed condition described by practitioners as either traumatisation, anxiety and adjustment disorder and symptoms associated with PTSD and that these stemmed directly from his work related and work accepted injury.
In my view, having regard to the evidence of the plaintiff, a review of the medical evidence and in applying the law, I am unable to conclude as the plaintiff would have me conclude, in this case that any restriction which the plaintiff had in consequence of his injury was broader than being confined to one particular place of employment that is, to say, with the defendant. I accept that the plaintiff’s inhibition in returning to the defendant is explicable and responsive his injury and that the diagnoses of symptoms associated with a return to the defendant because of a concern regarding the response of any of the employees who were privy to the assault is also genuine. I accept the plaintiff’s evidence that he did not feel he could return to the defendant even though he knew that his assailant had been terminated because the thought of returning to the workplace engendered in him an adverse physical and mental reaction as described by Dr Baglar in his report dated 29 April 2014. Of course at the date of that report by Dr Baglar the plaintiff was still in receipt of weekly payments and no decision to terminate the payments had been made or communicated to the plaintiff.
I have considered the opinion of Dr Triggs of 14 April 2014. There is a tension in trying to reconcile her opinion with other reports relied on by the plaintiff. For example, on 29 May 2014, just before the effect of the notice of decision to terminate weekly payments was to take effect, Dr Baglar wrote to the insurer that the plaintiff’s condition was ‘deteriorating’. This is inconsistent with the opinion of Dr Triggs expressed in her first report dated 14 April 2014. However, I note that on 20 May 2014 Dr Lipp expressed the opinion that the plaintiff although suffering from unresolved symptoms of PTSD ‘precipitated by the assault’, was ‘fit to return to his full time pre-injury duties’ and that he should obtain psychological counselling. However, there is as well Dr Kaplan’s opinion dated 18 August 2014 which was that the plaintiff had ‘no capacity to return to his pre-injury employment’.
The plaintiff said in his evidence that by the date of Dr Kaplan’s examination on 14 August 2014 he believed that he could return to his work as a trussmaker and that the only operative inhibition was returning to such work with the defendant. In addition, and as I have already mentioned, in cross-examination the plaintiff expressed a similar view of his own capacity at about the date he saw Dr Triggs in April 2014. He added that when he saw Dr Kaplan he had just commenced to look for work in the industry but not as a trussmaker. The evidence did not suggest that the plaintiff’s actions in not looking for work as a trussmaker was because of any susceptibility to this type of pre injury employment but instead and commendably his work interests and pursuits lay in other fields and this was reflective of his ongoing education.
I am satisfied that the plaintiff did not at the date of the termination of his payments in June 2014 suffer a present inability to return to his pre injury employment. I am satisfied that the plaintiff was capable of general employment as a trussmaker. In my view ‘employment’ embraces something more than the mere locus at which a worker works or the identity of the particular employer or the cohort of employees or the arrangement of duties.
The absence of evidence from Dr Baglar from after his last certificate in June 2014 to the certificate of October 2014 is unhelpful as is the lack of explanation why Dr Baglar determined that the plaintiff’s condition had altered to such an extent that he could by November 2014 be regarded as having a capacity for work with another employer.
For the reasons expressed the plaintiff’s claim is dismissed.
I will hear the parties on the form required of any additional orders required that follow from my decision.
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