Rigbye v Victorian WorkCover Authority
[2020] VCC 756
•17 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05696
| DAVID VICTOR SCOTT RIGBYE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 August 2019 | |
DATE OF JUDGMENT: | 17 March 2020 | |
CASE MAY BE CITED AS: | Rigbye v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 756 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right hip injury – Major Depressive Disorder – paragraphs (a) and (c) of the definition of “serious injury” – leave sought to bring common law proceedings for “pain and suffering” damages and “pecuniary loss” damages – the nature and extent of any right hip injury – whether symptoms consistent with rheumatoid arthritis and/or back injury – nature and extent of psychiatric condition
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave is granted to the plaintiff to bring common law proceedings for “pain and suffering” and “pecuniary loss damages” for a right hip injury suffered by plaintiff on or about 20 November 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr N J Dunstan | Maurice Blackburn |
| For the Defendant | Mr P D Elliott QC with Ms M Fudim | Wisewould Mahony |
HIS HONOUR:
1 By way of Originating Motion, Mr David Rigbye (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a right-hip injury (“the hip injury”) said to have occurred on or about 30 November 2016 during the course of his employment with Mickaid Pty Ltd (“the employer”).[1]
[1]The plaintiff has issued the Originating Motion against the Victorian WorkCover Authority, whereas other documents in the proceeding – for example affidavits, name Mickaid Pty Ltd as the defendant. I will refer to Mickaid Pty Ltd as the defendant.
2 The plaintiff also seeks leave pursuant to s335(2)(d) of the Act to bring common law proceedings for a Major Depressive Disorder and/or symptoms of Anxiety and Obsessive Compulsive Disorder (“the psychiatric injury”) said to have occurred as a consequence of the hip injury.
3 The plaintiff seeks leave to bring proceedings for “pain and suffering” and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of such injuries.
4 The plaintiff and his treating psychiatrist, Dr A Pokharel, gave evidence and were cross-examined. Both parties tendered a large number of documents.[2]
[2]Refer to Annexure “A”
Relevant legal principles
5 In relation to both the hip injury and the psychiatric injury, the Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[3]
[3]See s335(5)(a) of the Act
6 In relation to the hip injury, the plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph states relevantly:
“serious injury means—
(a) permanent serious impairment or loss of a body function;
… .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the right hip.
8 In relation to the psychiatric injury, the plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph states relevantly:
“‘serious injury’ means—
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder;
… .”
9 As I have already recorded, the mental or behavioural disturbance or disorder is said to be a Major Depressive Disorder and/or symptoms of Anxiety and Obsessive Compulsive Disorder.
10 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the hip injury and/or the psychiatric injury suffered by him arose out of or in the course or due to the nature of his employment with the employer on or after 1 July 2014;[4] and
(b) the hip injury under paragraph (a) of the definition of “serious injury”, and the psychiatric injury, under paragraph (c) of the definition of “serious injury”, must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[5]
[4]See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
11 Section 225(2)(b) of the Act provides that the terms “serious” and “severe” are to be satisfied by reference to the consequences to the worker, relevantly, of any impairment or loss of a body function (paragraph (a) of the definition of “serious injury”) or mental or behavioural disturbance or disorder (paragraph (c) of the definition of “serious injury”). Such consequences extend to both “pain and suffering” and/or loss of earning capacity.
12 In relation to the hip injury, it is for the plaintiff to establish, on the balance of probabilities, that his injury in relation to “pain and suffering” and/or “loss of earning capacity” must be serious. That is:
“… when judged by comparison with other cases, in the range of possible impairments … as the case may be … [can be] fairly described as being more than significant and marked and as being at least very considerable … .”[6]
[6]See s325(2)(b) and s325(2)(c) of the Act
13 In relation to the psychiatric injury, it is for the plaintiff to establish, on the balance of probabilities, that such injury in relation to “pain and suffering” and “pecuniary loss” must be serious. That is:
“… when judged by comparison with other cases, in the range of possible mental or behaviour disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”[7]
[7]See s325(2)(b) and s325(2)(d) of the Act
14 Section 335(3) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies subparagraph (i) of s325(2)(b) but not subparagraph (ii) of that subsection, he is entitled to bring proceedings in accordance with s335(2)(d) for the recovery of damages for pain and suffering only. A worker who satisfies the loss of earning capacity requirements of s225 of the Act is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[8]
[8]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
15 The word “severe” indicates that a more significant injury is required to meet the test under paragraph (c) of the definition of “serious injury” compared to the definitions contained in paragraph (a) and (b).[9]
[9]See Noonan v Victoria [2013] VSCA 289 at paragraph (8); Mobilio v Balliotis [1998] 3 VR 833
16 In addition, in relation to establishing the loss of earning capacity, a court must not grant leave under s335(2)(d) on the basis that the worker has established the loss of earning capacity required by s325(2)(e) unless the worker establishes, in addition to the requirement of paragraphs (c) or (d) of s325(2) of the Act (as the case may be), that:
(a)as at the date of hearing of an application under s335(2)(d) of the Act, the worker has a loss of earning capacity of 40 per cent of more measured (subject to certain relevant exceptions) as set out in s325(2)(f) of the Act; and
(b)the worker will, after the date of the hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[10]
[10]See s325(2)(e) of the Act
17 Section 325(2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
18 Section 325(2)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
The issues
19 Senior Counsel for the plaintiff, in his opening, stated that the case was put on the basis that the plaintiff was seeking leave to claim common law damages for both “pain and suffering” and “pecuniary loss” damages in respect of a compensable injury to the right hip on or about 30 November 2016 and also in respect of a psychiatric injury that had arisen consequently, both as a result of the physical injury to the hip and also as a result, in part, of the plaintiff being bullied and harassed upon his return to work for a period of time after the occurrence of the hip injury. Senior Counsel asserted that the plaintiff had a distinct limp when he came back to work and was referred to, among other things, as “hop a long” and “Forrest Gump”. The plaintiff ceased work some five or six weeks after returning to work on a return-to-work program.
20 When queried as to what were the issues, Senior Counsel for the defendant stated:
(a)the nature and extent of the right-hip injury. In this respect, Senior Counsel for the defendant highlighted that notwithstanding the treating orthopaedic surgeon’s diagnosis of an enthesopathy, there was little, if any ,current support from the radiology for such a diagnosis. Furthermore, prior to the right-hip injury, the plaintiff had been suffering a lower back condition for some years, causing him to use a walking stick prior to the hip incident.
When pressed by the Court as to whether or not the defendant accepted there was a compensable right-hip injury, Senior Counsel for the defendant noted that there had been a claim for that injury which had been accepted and payments had been made, but those had now ceased. Senior Counsel referred to the initial general practitioner’s notes, which contained no particular history of any work incident causing the right-hip pain and it was alleged the plaintiff reported no such injury at work at the time. (Both assertions disputed by the plaintiff.)
Subsequently, in his final address, after seeking instructions, Senior Counsel informed the Court that there was no issue that the plaintiff had suffered a compensable hip injury, but the highest that can be put, given the supporting pathology, is that it was some type of soft-tissue injury. In this respect, it was submitted that any injury to the right hip cannot satisfy the narrative test to be a serious injury;[11]
(b)Senior Counsel for the defendant also referred to the diagnosis of rheumatoid arthritis made by one of the plaintiff’s “treating doctors”, which, in counsel’s words, “can explain a lot of the problems that he has had and hasn’t been picked up until that rheumatologist picked it up”;[12]
(c)Senior Counsel for the defendant also submitted that much abnormal illness behaviour was found by various doctors and in the absence of any physical explanation for the pain (as suggested by some of the doctors relied on by the defendant), there must be some kind of “psychological functional overlay involved”;
(d)Senior Counsel for the defendant submitted that there is a difference of opinion amongst psychiatrists as to the condition the plaintiff suffers, ranging from Major Depression to Adjustment Disorder. Furthermore, there is a range of opinions as to whether the plaintiff could work as a result of his psychiatric condition.
(e)When queried whether it was open to the plaintiff to rely on two contributing aspects to his psychiatric condition – the restrictions and extent of pain in his right hip and the subsequent bullying when he returned to work and being referred to as “Forrest Gump” et cetera, Senior Counsel for the defendant, submitted that he had found no direct authority on point.[13] No further submissions were made on this particular issue.
(f)In any event, Senior Counsel for the defendant sought to rely on a report from the psychiatrist, Associate Professor Peter Doherty, which contains the opinion that the plaintiff had a mild Adjustment Disorder from the persistent symptoms of a soft tissue injury due to the iliac crest region. In any event, Professor Doherty was of the opinion that the plaintiff suffered no incapacity for work. To this end, the position of the defendant was that any psychiatric injury suffered by plaintiff was not “severe” within the meaning of the Act.
[11]T175, L1-10
[12]T28, L16-20
[13]See T31, L4-T34, L11
The evidence of the Plaintiff
21 The plaintiff has sworn four affidavits in support of the Originating Motion – his first affidavit was sworn on 5 July 2018[14] (the first affidavit), his second affidavit on 16 May 2019[15] (the second affidavit), his third affidavit on 3 June 2019[16] (the third affidavit) and his fourth and final affidavit on 26 August 2019.[17] The plaintiff gave evidence that prior to the hearing he had reread those various affidavits and the contents were true and correct.[18]
[14]See exhibit 1 at pages 7-14 Plaintiff’s Court Book (“PCB”)
[15]See exhibit 1 at pages 15-19 PCB
[16]See exhibit 1 at pages 22-23 PCB
[17]See exhibit 1 at pages 174-176 PCB. Please note this affidavit is headed “The Third Affidavit” but is, in fact, the fourth affidavit.
[18]See Transcript (“T”) 37, Lines (“L”) 20-23
22 By way of his first affidavit, the plaintiff deposes that:
·He is presently fifty-two years of age, having been born in May 1967 and lives alone on a 30-acre property situated in Chesney Vale. He has one adult son and four grandchildren.
·He completed secondary school to Year 11, after which he qualified as a butcher, and over the years has also held a security licence.
·Over a number of years he was employed as a butcher with Pollard’s Butchery, then Woolworths, and then as an assistant manager at Imak Meat Warehouse.
·Over the years he has also worked as a senior commander, Royal Rangers with the Assemblies of God Church in Queanbeyan. He also was a security guard with Carrs Security in Canberra and Transit Security in Melbourne, and also as security guard with Probe Security and Australian Guarding Services, which involved working in shopping centres. He has also worked for a brief period as a motorcycle courier in the Melbourne CBD.
·In about 1990 he suffered a back injury when working in New South Wales and submitted a WorkCover claim, being off work for approximately one month. He did not require any surgery, but over the years has suffered from “some intermittent back pain and sought treatment from time to time from my general practitioners”.[19]
[19]See exhibit 1, paragraph [11] at page 8 PCB
·In approximately 2002, he suffered injury to his left shoulder and again submitted a WorkCover claim, and was off work for approximately eighteen months and treated by an orthopaedic surgeon, Mr Rodney Simm. He had a number of hydrodilatation procedures and over the years has suffered from “some intermittent left shoulder pain”.[20]
[20](Supra), paragraph [12] at page 8 PCB
·He commenced working with the employer in approximately July 2005 and was originally employed as a delivery driver, which he undertook for about eighteen months before being made a spare parts interpreter and becoming the second-in-charge of that area. He was employed on a full-time basis and his regular hours were from about 8.00am to about 4.00pm Monday to Fridays and he worked every second Saturday from 9.00am to 12.00pm.
·In or about September 2012, he hurt his back when lifting some wood at home, causing him to attend his general practitioner, Dr Hiran Edirisinghe who, in turn, referred him to the orthopaedic surgeon, Mr Greg Etherington in 2014. Mr Etherington did not recommend surgery, but administered three injections into his back, after which he had ongoing back pain as a result of this injury. He also took medication for back pain, including Tramadol, Lyrica and Valium.
·As a result of this injury, he was off work for about two weeks, after which he returned to work and was on light duties for approximately one year, but was able to return to his pre-injury duties.
·As a consequence of his back pain, he has suffered from some depression and in or about November 2015 he had “some issues with a co-worker at work when he was ‘stirring’ me and I lost my temper with him”.[21] He attended his general practitioner and was prescribed Cymbalta.
[21](Supra), paragraph [18] at page 9 PCB
·At work on 30 November 2016, he was required to pick a spare-parts order, which caused him to lift a heavy bar cover off some shelves when he felt sharp pain in his right hip and groin area. As a result of this injury, he submitted a WorkCover claim, which was accepted, and was in receipt of weekly payments of compensation for more than 130 weeks.
·He did continue to work after this injury, but the hip pain got worse, and a few weeks after such injury he again consulted his general practitioner who put him off work because of the pain in the right hip and leg. He continued working to approximately February 2017, but in about mid-February 2017, he ceased work because of increasing hip pain.
·In about April 2017, he returned to work, but struggled because of his right-hip pain and also “was given a hard time at work because of my injury. I was given a hard time from co-workers because I was limping. I was called names such as ‘hop along’ and ‘Forrest Gump’”.[22]
[22](Supra), paragraph [26] at page 10 PCB
·He was struggling to cope at work because of his right-hip injury and was back at work for only approximately five or six weeks before ceasing work completely. He has not worked at all since that time.
·He has continued to receive treatment from his general practitioner, Dr Edirisinghe, and also developed some psychological problems, for which he received treatment from a psychologist, Ms Trinette Cordeiro. He was also referred, because of his psychological condition, to a psychiatrist, Dr Anupam Pokharel.
·In particular, as a consequence of his right-hip injury, he was referred to an orthopaedic surgeon, Associate Professor Raphael Hau and in about July 2017, underwent a cortisone injection into the right hip. He was also referred to a musculoskeletal physician, Dr Ghazanfari.
·At the time of swearing his first affidavit, he was taking a number of medications for his right-hip pain and Depression, which including Lyrica, 600 milligrams (2 x 300 milligrams per day); Pristiq, 100 milligrams once a day; Avanza, 600 milligrams once per day; Palexia, 100 milligrams plus 50 milligrams per day; Proxen, an anti-inflammatory, 750 milligrams and Valium, 5 milligrams per day. He also takes Atacand for high blood pressure unrelated to his work injury.
·He describes that, as a consequence of his right-hip injury, he:
– suffers from constant daily pain in his right hip, such a level which fluctuates from about 5/10 up to about 8/10. Such pain is aggravated by any prolonged sitting, standing or walking.
– his sleep is regularly disturbed at night by his right-hip pain.
– because of problems with walking, he normally has to use a walking aid if he is leaving the house and has to walk any distance. His walking capacity is approximately 300 metres.
– he has great difficulty doing the household work because of his right-hip injury and in particular has problems vacuuming, standing up to do the dishes and hanging out washing on the line. He also finds cooking very difficult because it involves prolonged standing.
– his property is approximately 30 acres, on which he has sheep, and he can no longer look after the property by himself because of the injury and has to get friends over to help look after the property
– prior to the hip injury, he used to enjoy motorbike riding, and since the injury he is greatly restricted in what he can undertake – that is, going on very short rides once every few months.
– prior to the injury he used to go deer hunting and has a licence to hunt deer. During the season he would go hunting every two to three weekends, but no longer is capable of doing this because of the right-hip injury.
– prior to suffering the hip injury, he enjoyed playing with his grandchildren who, at the time of the first affidavit, were aged five, seven, nine and eleven years old. He is now very restricted in his capacity to play with those children.
·As a consequence of his hip injury and the way he was treated at work, after suffering such injury he has developed a psychological condition, although noting that he suffered from some Anxiety and Depression prior to the hip injury, when he was prescribed Cymbalta, but his psychological condition “is much worse as a consequence of my right hip injury”.[23]
[23]See exhibit 1, paragraph [43] at page 12 PCB
·As a consequence of his psychiatric condition, he now has to check doors and locks a number of times before he can leave the house and sometimes it takes him up to half an hour to leave the house because he needs to check doors and locks a number of times before leaving. He did not have this problem prior to suffering his hip injury.
·As a consequence of his hip injury, he has become very anxious and depressed and suffers from low mood. He struggles to get out of bed and struggles with motivation and does not want to do anything, and often does not like going out of the house. As a consequence, he has very little social life.
·As a consequence of his Anxiety and Depression, he has been suicidal at times, but at the time of the first affidavit he is better at this moment.
·Prior to suffering his injury, he used to chop wood on the farm, which he would use both for personal use and for sale. He can no longer chop the wood because of his injury, and he has to get friends to come onto the farm to chop the wood and sell the wood, for which he gets part of the proceeds.
·As a consequence of his right-hip injury, he cannot drive a tractor and now needs a friend to come onto the farm to do the tractor driving for him. He struggles with some aspects of showering and dressing because of his right-hip pain.
·He struggles with driving for very long because of his right-hip pain, and if he is driving for more than thirty to forty-five minutes, he needs to stop for a while because of increased pain in his right hip.
·He believes that he is incapable of doing any form of suitable employment because of the injury to his right hip, or because of his psychological condition. At the time of swearing his affidavit, he was in weekly payments of compensation for having no current work capacity.
·Prior to suffering “my injury”, he was earning the following amounts of gross income.
– 2013 - $47,519
– 2014 - $46,152
– 2015 - $46,173
– 2016 - $48,684
– 2017 - $44,939.
23 By way of his second affidavit, the plaintiff deposes that:
·At the time of swearing such affidavit, he was currently not working and in receipt of weekly payments of compensation. He notes that the WorkCover insurer terminated his weekly payments in 2018 and the matter was referred to the Medical Panel, who found in his favour.
·He continues to live at Chesney Vale and now lives with Mr Gordon Cooper, who assists him with managing his property and helps him getting around the house.
·At the time of the second affidavit, he was in the process of building a house out of shipping containers and was assisted by a number of friends and his brother. He notes that he does not do any of the heavy physical work because of his injuries.
·He continues to see his general practitioner, Dr Edirisinghe, for treatment approximately once a month, and also continues under the care of his psychiatrist, Dr Pokharel, for treatment about once a month. Also, he remains under the care of his psychologist, Ms Trinette Cordeiro, whom he last saw in February 2019.
·At the time of the swearing of the second affidavit, he takes the following medications for his right-hip injury, Anxiety and Depression, and Rheumatoid Arthritis. Such medications include:
– Lyrica
– Palexia
– Avanza
– Pristiq
– Circadin
– Atacand (high blood pressure)
– Valium
– Panadol
– Methotrexate (Rheumatoid Arthritis)
– Prednisolone (Rheumatoid Arthritis)
– Sulfasalazine Rheumatoid Arthritis).
·He continues to suffer from constant daily pain in his right hip, as described in his first affidavit. He experiences regular flare ups of more severe pain in his right hip and right buttocks – such flare ups happen at least once a week, and when such a flare up occurs, it normally lasts at least a couple of days.
·He continues to be regularly disturbed by right-hip pain, and because of the right-hip injury continues to have problems with walking, as referred to in his first affidavit. He now uses a walking frame whenever he has to walk more than approximately 500 metres, and also a walking stick if he is not using his walking frame. He has been advised by his physiotherapist to use the walking frame.
·He has great difficulty with the following:
– performing housework, as set out in his first affidavit.
– continuing problems looking after his property, although he has the help now of Mr Gordon Cooper, who lives at the property.
– very restricted in his capacity to enjoy motorbike riding, although he has attempted to do some very limited trail bike riding since his first affidavit.
– he is unable to return to his hobby of deer hunting because of his right-hip problem.
– he continues to be greatly restricted in his capacity to enjoy playing with his grandchildren.
– since his first affidavit his psychiatric condition has not improved and he remains under the care of his psychiatrist, Dr Pokharel.
– his social life remains very restricted because of his right-hip condition.
– as a consequence of his right hip, he is still unable to chop wood on his farm, as referred to in his first affidavit.
– he still remains restricted in being able to drive a tractor and his friend, Gordon Cooper, does most of the tractor driving.
– he still has difficulties, and struggles sometimes with aspects of showering and dressing.
– he has difficulty driving for more than forty-five minutes, and if he does drive longer than that he has stop and have a rest for a while because of his right-hip pain.
– as a result of his medications he has been taking for pain and his psychiatric condition, he has difficulty with his memory and concentration.
– he does experience intermittent back pain, but is not greatly troubled by the back pain, although it is aggravated by bending and lifting. He describes his right hip as significantly worse than his back, causing more difficulty, and is far more restrictive than his back.
24 It is convenient to refer to the affidavit of Michael Gaze (“Gaze”) sworn on 4 June 2019.[24] Some of the issues raised by Gaze in that affidavit are responded to by the plaintiff in his third affidavit.
[24]See exhibit “A” at pages 2-6 DCB
25 In particular, Gaze deposes that:
·He has been employed by the employer for nineteen years and has been a manager since 2007. In his role as the manager, he employed the plaintiff from the commencement of his employment until he ceased in 2017.
·That the plaintiff was initially employed as a delivery driver and that in approximately 2012 his role changed and he became a wholesale spare parts interpreter. Such job change was to accommodate a lower-back injury he suffered at home.
·That his duties were as follows:
– he worked approximately thirty-eight hours a week performing largely desk and computer-based duties. He shared an office and his chair had a back-support cushion.
– his position was primarily to answer phones and to look up parts on the computer to see if they were in stock. If a part was in stock, he would invoice that part and place the invoice on a hook outside the office. If the part was not in stock, then no invoice was required.
– the plaintiff was not required to pick parts, and Gaze had told him on several occasions not to pick parts as he was aware that he had a sore back and it was not part of his duties. Gaze deposes that the employer had designated staff to pick parts and there is always someone available to do the task.
·Gaze became aware of the plaintiff’s “claimed right hip injury” from when he returned from two weeks’ leave on 20 January 2017 and noted there was no report to him of any injury prior to 20 January 2017.
26 By way of his third affidavit, the plaintiff deposes that:
· That he has read the affidavit of Gaze, sworn on 21 May 2018, and in particular, says the following:
– he was made a wholesale spare parts interpreter in about 2007, which is about five years before he injured his back at home in 2012.
– he denies he was not required to pick spare parts as a part of his normal duties and was often required to pick parts in his role as wholesale spare parts interpreter. He notes that often the delivery drivers are out doing deliveries and whenever this happened he would pick parts as required.
– he injured his back at home in 2012, but was able to return to his role as a wholesale spare parts interpreter.
– he suffered his right hip injury at work on 30 November 2016, not 13 November 2016, as stated in paragraph 7 of Gaze’s affidavit. Furthermore, he told Gaze he had injured his right hip on the day he suffered the injury, which was on or about 30 November 2016.
– prior to injuring his right hip at work on or about 30 November 2016, he would occasionally use a walking stick as a result of his back injury, but estimates that he used such a walking stick about five days a year before he suffered his injury to his right hip.
27 By way of his fourth affidavit, the plaintiff deposes that:
·He has not seen his psychologist, Ms Trinette Cordeiro, since about February 2019, because he was suffering panic attacks and heightened Anxiety and Depression every time he drove through Lilydale on the way to see her. He notes that the depot of the employer is in Lilydale and he would often see the employer’s trucks when he was attending the psychologist, and that would provoke more anxiety and bring on a panic attack.
·In other respects of his injury, mental state and symptoms remain “much the same” as he had sworn in his previous affidavits.
·He currently takes:
– only one Lyrica, 75 milligrams per day
– Avanza, 60 milligrams at night
– Pristiq, 150 milligrams in the morning
– to help him sleep, he is taking Circadin, 2 milligrams x two every night and Valium, 5 milligrams by one at least three nights per week.
Apart from that, he has the same medications as when he swore his affidavit on 16 May 2019.
·He continues to see his psychiatrist, Dr Pokharel, for treatment about every four to six weeks and also continues to see his general practitioner, Dr Edirisinghe, for treatment about once a month.
·He recently attended his treating orthopaedic surgeon, Associate Professor Raphael Hau, and is due for a further review in December 2019.
·He continues to have difficulties with prolonged driving and finds he has to stop and rest after about forty minutes of continuous driving because of increased pain in his right hip.
Other affidavits
28 The plaintiff also relies on affidavits from Gordon Cooper, sworn on 31 May 2019[25] and on 4 June 2019.[26]
[25]See exhibit 1 at pages 20-21 PCB
[26]See exhibit 1 at pages 153-155 PCB
29 In his first affidavit, Mr Cooper asserts that he has known the plaintiff for about five years and has been living with him at Chesney Vale since about July 2018.
30 In particular, Mr Cooper asserts the following:
·He has to help the plaintiff out on the property because the plaintiff is unable to do a lot of things because of his injury. Cooper drives the tractor, waters and feeds the sheep and refills the generators, because of the inability of the plaintiff to perform such work because of his hip injury.
·He also assists the plaintiff with shopping, cooking, general cleaning around the house, washing dishes and chopping wood, and taking rubbish to the bins that are about half a kilometre away.
·To his observation, the plaintiff is significantly incapacitated by his right-hip injury and the in colder weather he is worse, when his hip is bad, and he is barely able to move, and does not get out of the house.
·Some days the plaintiff is unable to drive a car because of his pain.
31 In his second affidavit, Cooper deposes that:
·He has noticed a significant change in the plaintiff’s positive personality since he suffered the injury.
·Before his right-hip injury, he was quite “outgoing and sociable”, but since he has suffered the injury he has become quite “a different person” and seems “very depressed”, and is no longer as outgoing as he was before his injury. Cooper describes the plaintiff leading a “fairly reclusive lifestyle”.[27]
·The plaintiff normally has friends visit about once a fortnight, but apart from that he leads a fairly reclusive life. Cooper also deposes that the plaintiff often struggles with his memory and often forgets to pay bills.
·From what Cooper has seen, the plaintiff is “not quite the same person that he was before he had his injury”.[28]
[27]See exhibit 1 paragraph [3] at page 156 PCB
[28]See exhibit 1, paragraph [5] at pages 156 PCB
Medical evidence relied on by the Plaintiff
(a) Dr Hiran Edirisinghe
32 The plaintiff relies on medical reports of his treating general practitioner, Dr Hiran Edirisinghe, dated 15 December 2017, 10 August 2017 and 4 June 2019.[29]
[29]See exhibit 2, at pages 44-62 PCB and pages 153-154 PCB
33 In his report dated 15 December 2017, Dr Edirisinghe notes that the plaintiff presented to him on 20 December 2016 with right hip and groin pain. The plaintiff was limping at that time and Dr Edirisinghe understood that the injury was due to twisting his body while reaching towards an overhead shelf to move equipment. The plaintiff experienced sharp pain in his right hip/groin at the time of this incident. Upon examination at that time, he had reduced range of movement in the right hip and he was in pain. Dr Edirisinghe arranged for the plaintiff to undergo blood tests and radiological investigations. Dr Edirisinghe noted that an ultrasound showed a torn right gluteus medius and associated bursitis. Nothing abnormal was detected on x-ray. The plaintiff was treated with a steroid injection to his right hip, with no significant relief. In February 2017, Dr Edirisinghe referred the plaintiff to the orthopaedic surgeon, Associate Professor Raphael Hau regarding the ongoing right hip and groin pain.
34 Dr Edirisinghe also noted that the plaintiff developed significant depression with return to work on modified duties and he was particularly distressed by some of the comments made by fellow employees who were unsympathetic towards him, calling him names, such as “Forrest Gump”. The plaintiff considered that he was bullied by work colleagues. Dr Edirisinghe noted that the plaintiff had depressed mood with no motivation or interest and his concentration was low. He had been feeling extremely tired at the time, with poor sleep patterns, and even had self-harm thoughts.
35 Dr Edirisinghe referred the plaintiff to a psychologist, and later to a psychiatrist, due to the severity of the Depression.
36 Dr Edirisinghe diagnosed that the plaintiff most likely had tendinopathy involving right hip and gluteal/iliac crest area, and also met the DSM-5 criteria for the diagnosis of Depression and subsequently developed symptoms of Obsessive Compulsive Disorder as well. Dr Edirisinghe noted that the plaintiff was being treated by Associate Professor Hau for the hip and gluteal pain, receiving analgesia and anti-inflammatory medication. Tramadol was later changed over to Palexia due to the risk of Serotonin Syndrome. For his depression and anxiety he was attending Dr Pokrahel, and was on antidepressant medication. Dr Edirisinghe considered both his physical and psychological injuries were consistent with the stated cause, and at the time of his first report the plaintiff was still able to full-time work, and in the future he may be able to work for a different employer performing non-physical duties, such as office/administrative work.
37 In a report dated 10 August 2017 is a referral to the rheumatologist, Dr Farshad Ghazanfari, wherein Dr Edirisinghe recorded that a recent blood test suggested rheumatoid arthritis.
38 In his final reported dated 4 June 2019, Dr Edirisinghe set out details of treatment provided to the plaintiff since the last report. Dr Edirisinghe notes that the plaintiff has undergone further cortisone injections for his right iliac crest enthesopathy through his treating orthopaedic surgeon, Mr Hau, in 2018, and has been diagnosed with rheumatoid arthritis by the rheumatologist, Dr Ghazanfari, in April 2018, and has undergone further steroid injections through his rheumatologist for hips, including trochanteric bursitis and tendinosis of hips. In addition, the plaintiff has received photobiostimulation/musculoskeletal physiotherapy and hand therapy for his musculoskeletal problems.
39 The plaintiff has also continued to attend Dr Pokharel, his psychiatrist, for Anxiety, Major Depression and Obsessive Compulsive Disorder symptoms, for which he has been received Pristiq and Mirtazapine.
40 In particular, Dr Edirisinghe noted it is very hard to determine the prognosis in that the plaintiff has had a patchy recovery and was still unstable from a psychological point of view. Dr Edirisinghe opines that, from a psychiatric point of view, he would need ongoing counselling through a psychologist and management through his psychiatrist, and without such treatment he will continue to face disabling anxiety, Obsessive Compulsive Disorder and Depression in the future.
(b) Associate Professor Raphael Hau
41 The plaintiff also relies on reports from his treating orthopaedic surgeon, Associate Professor Raphael Hau, dated 7 September 2017 (two reports) and 18 September 2017 (two reports).
42 Associate Professor Hau specialises in hip and knee reconstructive surgery. He initially consulted with the plaintiff on 23 February 2017, when the plaintiff gave a history that he twisted his right hip while pulling a heavy object overhead at work on or about 30 November 2016. This resulted in an acute right groin and greater trochanteric pain, which has been persistent.
43 Associate Professor Hau diagnosed the plaintiff to have suffered a right iliac crest enthesopathy, which condition was materially contributed to by the incident at work on or about 30 November 2016. Furthermore, Associate Professor Hau was of the opinion that there had been no aggravation of any pre-existing medical condition. Mr Hau treated the plaintiff by referring him for cortisone injections and tried various medications, including Palexia, Lyrica, Indocid, Tramadol and Celebrex, to control his ongoing pain symptoms. Associate Professor Hau also noted that although outside his specialisation, he had been informed that the plaintiff had suffered depression secondary to his right iliac crest enthesopathy.
44 Associate Professor Hau also noted that when he went back to work for a period of time, some of his colleagues at work, including his superiors, had engaged in “bullying behaviour”. The plaintiff had continued to consult with Associate Professor Hau and was due to see him again in December 2019.
(c) Ms Trinette Cordeiro
45 The plaintiff also relies on reports from his treating psychologist, Ms Trinette Cordeiro (up until February 2019), dated 7 December 2017, 12 April 2018 and 22 August 2019.[30] The plaintiff initially consulted with Ms Cordeiro and consulted with the plaintiff over twenty-one sessions from 21 June 2017 to 23 January 2019.
[30]See exhibit 2 at pages 24-28 PCB and pages 173 PCB
46 In her initial report, Ms Cordeiro describes the plaintiff presenting with feeling low, stressed out, worried, having a lack of interest in daily activities such as bathing and cooking, and being unable to go out of the house. Also, at that time, he had thoughts about killing himself and he also had developed checking obsessions and compulsions.
47 According to Ms Cordeiro, the symptoms were in the context of having a physical hip and pelvis injury at work in November 2016, when the plaintiff was reaching for a bar cover from a shelf.
48 Pain in his right hip worsened, causing the plaintiff to be off work between 25 February 2017 and 9 April 2017, when he resumed work, during which time there was verbal bullying and being called names such as “Forrest Gump” and “hop a long”. The plaintiff ceased work on 4 May 2017, since which time he had been constantly sad, worried, angry and tense about how he was treated at work, which has impacted on his mental state. Testing over the period up to October 2017 revealed the plaintiff to have high test results, indicating high levels of depression, anxiety and stress.
49 In her later report, describing her treatment of the plaintiff since October 2018, Ms Cordeiro notes that some of the symptoms have persisted and fluctuated, involving low mood, irritability, dreams about past jobs, poor sleep, obsessions, checking compulsions, increased avoidance of shopping centres due to the noise, forgetfulness. Ms Cordeiro also notes that during this period of time, the plaintiff had been diagnosed with rheumatoid arthritis, which was causing him pain.
50 On the last appointment on 23 January 2019, a Depression Anxiety Stress Scale was administered and the plaintiff’s scores were 10 (moderate), 16 (extremely severe) and 15 (severe), indicating that the plaintiff was still experiencing distress. She notes that the plaintiff cancelled his last appointment on 21 February 2019 and has not returned for any further appointments.
(d) Dr Farshad Ghazanfari
51 The general practitioner, Dr Edirinsinghe, referred the plaintiff to the rheumatologist, Dr Farshad Ghazanfari. Dr Ghazanfari has supplied reports dated 10 August 2017, 30 April 2018, 31 May 2018 and 14 August 2019.[31]
[31]See exhibit 9, report dated 31 May 2018, found at 114-115 PCB, with the balance of the other reports found at pages 201-209 DCB.
52 Dr Ghazanfari initially saw the plaintiff on or about 30 April 2018 and diagnosed the plaintiff to be suffering symptoms and signs in favour of a seropositive rheumatoid arthritis with a very high rheumatoid factor. He notes that this was in the background of recent pain and stiffness in the small joints of the hands, and also noted swelling at the joints of his wristband and what feels quite tight, and difficulty making a fist. Dr Ghazanfari obtailned a history of these symptoms started in August 2017 and is ongoing.
53 Dr Ghazanfari obtained a history the plaintiff having a WorkCover claim in November 2016, when he was taking objects out of a shelf and he “fell backwards”, trying to pull a box out of the shelf, landing on his right hip. He also noted that he had evidence of iliac tendinopathy and trochanteric bursitis, for which he had an injection (performed by Mr Hau).
54 In his last report, dated 14 August 2019, Dr Ghazanfari states:
“He complains of a lot of pain in the right hip in the background of hip arthritis and he previously had trochanteric bursitis. His pain is a combination of inflammatory and mechanical response to a likely arthritis in the right hip and secondary osteoarthritis.
…
On examination, he had irritable right hip. The trochanteric bursitis surprisingly was non-tender and after I injected him a few months ago. However the hip on the right side was quite …[unclear] on external rotation and he was tender against the joint line.”[32]
[32]See exhibit 9 at page 208 DCB
(e) Dr Anupam Pokharel
55 The general practitioner, Dr Edirisinghe, referred the plaintiff to the psychiatrist, Dr Anupam Pokharel, for treatment. Dr Pokharel gave evidence and was cross-examined.
56 Dr Pokharel had supplied two reports, dated 14 December 2017 and 3 May 2019.[33] In his evidence-in-chief, Dr Pokharel gave evidence that the history obtained by him, his finding on mental state, and the opinions formed by him set out in such reports, were accurate.
[33]See exhibit 2 at pages 34-43 PCB
57 During the course of his evidence, Dr Pokharel estimated that he had consulted with the plaintiff about twenty-four times,[34] commencing on 24 August 2017, and the last examination before giving evidence was 21 August 2019.[35] At the time of the hearing, Dr Pokharel was reviewing the plaintiff once every four to six weeks.
[34]See Transcript (“T”) 137, Lines (“L”) 10-15
[35]T134, L20-21
58 At his initial consultation, Dr Pokharel obtained a history that the plaintiff had worked as a motor vehicle parts interpreter in Lilydale for about twelve years and that in November 2016, he hurt his right hip as he twisted when he was pulling some parts from a shelf. He reported the incident to his boss, but kept working. In particular, Dr Pokharel records the plaintiff stating:
“He said that he had pre-existing back injury, which was generally under control at that time. His boss asked him if he needed a walking stick, which he started using. He was also allowed to do office-based work on that day only. Next day onwards, he continued to work as usual despite the hip pain. He said that his boss linked that pain with his previous back injury, which was not work related. As the pain got worse, he went to his GP, who told it was not linked with his previous back injury and he was referred for imaging studies. He took time off and went back to work for three weeks in April 2017. At that time as well he used walking a stick, but a couple of employees including the owner of the business called him Forrest Gump and hop along (slang for having three legs to walk). They made picture of disabled sign at work with sexual connotations with penis and testicles. As his pain was getting worse, he also felt quite humiliated in his workplace. After three weeks of back at work, he was assessed by a surgeon who asked him to remain off work and gave him a certificate to support in taking longer sick leaves. He had injection for his hip pain. He also took Celebrex for pain management, but that made him nauseated.”[36]
(sic)
[36]Exhibit 2 at page 39 PCB
59 Dr Pokharel, in his first report, diagnoses the plaintiff to have developed a major depressive disorder due to his hip-joint pain that developed while at work. More precisely, it appears his depression developed after his failed attempt to return back to work in April 2017. The plaintiff stated he had not experienced Anxiety or Depression in the past, and that the treatment with Cymbalta (antidepressant) for the previous two years or so was for the treatment of his back pain. Dr Pokharel also stated that the plaintiff’s perception of being harassed and humiliated when he tried to return to work in April 2017 also added extra stress and played a role in the development of the Depressive Disorder. Dr Pokharel also considered that the plaintiff had developed obsessive and compulsive symptoms which would fluctuate with his mood state.
60 In his second report, Dr Pokharel noted that the plaintiff’s mental state examination findings remained not very different to those when he provided the previous report in December 2017. In particular, Dr Pokharel described the plaintiff as presenting with reduced psychomotor activity, with depressed mood and reduced affective expressivity, he has negative thoughts and he feels hopeless mostly, mainly around his physical health. There have been no psychotic symptoms. He continues to struggle cognitively due to poor concentration and poor short-term memory.
61 Dr Pokharel continued to be of the opinion the plaintiff suffers from a chronic major depressive disorder with symptoms of anxiety and obsessive compulsive disorder and those conditions have not resolved. His psychiatric conditions are both primarily due to the negative experiences at work, as well as secondary to his pain condition in the right hip area.
62 Dr Pokharel was of the opinion that the plaintiff remains totally incapacitated for any work, even purely from a psychiatric point of view and that this was not likely to improve further until he has significant improvement in his pain. At the time of his last report, Dr Pokharel considered the plaintiff to be permanently incapacitated for work even purely from a mental health point of view.
63 Under cross-examination, Dr Pokharel accepted that there had been some improvement and noted the purpose of the treatment is to bring improvement, but also if there is no improvement to prevent any further decline.[37]
[37]T131, L21-27
64 In particular, Dr Pokharel stated that he did not see the Major Depressive Disorder “getting any better than what it is now”.[38] Dr Pokharel also confirmed that he was of the opinion that the plaintiff suffers some symptoms of Obsessive Compulsive Disorder, which is “quite debilitating”.[39] In answer to a question from the Court as to whether Obsessive Compulsive Disorder was a “subset” of Depression, Dr Pokharel stated that the Obsessive Compulsive Disorder developed in the aftermath of Depression and that would be worse when his depression would be worse. His capacity to manage the Obsessive Compulsive Disorder would weaken during the depressive state. In particular, Dr Pokharel, although noting that Depression and Obsessive Compulsive Disorder are separate entities, in the case of the plaintiff, he considered that the Obsessive Compulsive Disorder is connected with his depression, because when the Depression increased, his obsessive compulsive disorder would be worse as well.
[38]T131, L28-30
[39]T132, L4
65 Dr Pokharel also confirmed under cross-examination that the plaintiff ceased seeing his treating psychologist as she was living quite a long way away and also he was not getting much benefit from her treatment.[40] Under cross-examination, Dr Pokharel confirmed that he had done mental state examinations on the plaintiff. Dr Pokharel was taken to his most recent mental state examination and he recorded the following findings (which he noted were not very different to the findings set out in his earlier report):
“… He presents with reduced psychomotor activity with depressed mood and reduced affective expressivity, he has negative thoughts and he feels hopeless mostly, mainly around his physical health. There have been no psychotic symptoms. He continues to struggle cognitively due to poor concentration and poor short term memory”.[41]
[40]T133, L5-12
[41]See exhibit 2 at page 36 PCB
66 In particular, Dr Pokharel was of the opinion that the plaintiff has problems with his short-term memory.[42]
[42]T151, L6-7
67 Under cross-examination, the opinions of the psychiatrist relied on by the defendant (Professor Doherty), reports of the consultant psychiatrist, Dr Natalie Krapivensky, and to a lesser extent, the opinion of the Medical Panel, were put to Dr Pokharel but they did not cause him to alter his opinion.
The medico-legal material relied on by the Plaintiff
68 The plaintiff was medico-legally examined by the following:
(a) the occupational physician, Dr Robyn Horsley, on 7 March 2019;[43]
(b)by the consultant physician (vascular diseases and pain medicine), Dr Peter Blombery, on 18 April 2019;[44] and
(c)the consultant psychiatrist, Dr Gregory Whyte, on 5 July 2019.[45]
[43]See report dated 7 March 2019, exhibit 10, at pages 116-123 PCB
[44]See report dated 29 April 2019, exhibit 3, at pages 63-67 PCB
[45]See report dated 8 July 2019, exhibit 12, at pages 157-172 PCB
69 In her report, Dr Horsley, under the heading “Diagnoses”, states:
“• Mr. Rigbye has been diagnosed with iliac crest insertional tendonitis. He has ultrasound evidence on the 30th May 2018 of ‘persistent gluteus medius tendonosis and trochanteric bursitis’.
• He has radiological evidence of pre-existing lumbar spondylosis with ‘severe disc degeneration of L3/4 and foraminal stenoses at the left L3/4, right L4/5 and left L5/S1 foraminal stenoses compromising the respective nerve roots’. X-ray of his pelvis and hips confirms that there is no significant osteoarthritis affecting his right hip.
• Mr. Rigbye has been diagnosed with a major depressive disorder by my Psychiatrist colleagues, his treating Psychiatrists and treating Psychologist. I note that my Psychiatrists colleagues and the Medical Panel have confirmed that Mr. Rigbye has no capacity for work on the basis of his psychiatric status alone.
A Beck Depression Inventory today gave a score of 45, suggestive of severe depression with mild suicidal ideation and a Beck Anxiety Inventory gave a score of 34, suggestive of severe anxiety. He experiences panic attacks when he is in unfamiliar environments.
• Mr. Rigbye in April 2018, was diagnosed with rheumatoid arthritis. He is managed by a Rheumatologist, Dr. Ghanzanfari. He is managed with methotrexate and prednisolone. He experiences ‘flares’ in his hands and feet, approximately fortnightly, lasting four to six days.”[46]
[46]See exhibit 10 at page 122 PCB
70 Dr Horsley goes on to state, in part:
“I believe that the events as described and the clinical presentation are consistent. I believe that Mr. Rigbye’s right hip injury relates back to the events on the 30th November 2016. I note that he has had multiple injections into the right hip. The most relevant ultrasound on the 30th May 2018 confirms ‘ongoing gluteus medius tendonosis and trochanteric bursitis’.
My Psychiatrist colleagues and the Medical Panel have confirmed that he has no capacity for work based on his psychiatric status alone … .
Mr. Rigbye’s presentation is complicated by the diagnosis of rheumatoid arthritis in April 2018 affecting his hands and feet.
Mr. Rigbye also has constitutional degenerative change in the lumbar spine dating back to an incident when a truck fell upon him in 1989 and then a further incident in 2012, requiring an opinion from an Orthopaedic Surgeon, Mr. Etherington in 2014 and on history, a variety of facet joint blocks. There is no radiology from 2012 or 2014.
In terms of Mr Rigbye’s right hip alone, I believe that the following work restrictions apply:
• Avoidance of repetitive squatting. This impacts upon manual handling technique;
• Avoidance of lifting items greater than 8 to 10kgs, except on an occasional basis;
• Avoidance of lifting items up to 5 to 8kgs on a repetitive basis;
• Avoidance of repetitive stair and hill ascending and descending;
• Avoidance of using tools with a vibratory component;
• Avoidance of climbing in and out of cars and vehicles of any kind on a repetitive basis;
• Avoidance of prolonged sitting, prolonged standing and prolonged walking;
• Variation in posture;
• He should ambulate with a single point cane supporting his right hip region.
His functional tolerances are poor secondary to a combination of his back condition and his right hip. Currently:
• He has a sitting tolerance of 30 to 40 minutes. He primarily sat on his left buttock;
• He has a static standing tolerance of a couple of minutes. He ambulates with a single point cane;
• He has a dynamic standing tolerance of 5 to 10 minutes;
• He has a walking tolerance of 5 to 10 minutes; and• He has a driving tolerance of about 30 minutes before he gets out of the vehicle for a rest break.
Mr. Rigbye has no capacity for work based on his psychiatric status, identified by his treating Psychiatrist and the Medical Panel. However, putting aside his psychiatric disability, he presents with no current capacity for work on the basis of his current functional tolerances and his significant level of deconditioning, which has been worsened by his gain in weight. He has gone from a BMI of 30, up to a BMI of 43.5.
Mr. Rigbye presents poorly. He is currently living in Chesney Vale. He had to move away from Mooroolbark because he had to sell his home when payments ceased. He is living on nine acres, 20km out of Benalla. He presents with significant disability, despite his youthful age of 51 years. His prognosis for return to work in any capacity is guarded at best. On the basis of his presentation today, I believe on physical grounds alone, that he is likely to remain out of the workforce into the longer term.[47]
[47]See exhibit 10 at pages 122-123 PCB
71 It is to be noted that Dr Horsley refers to the ultrasound dated 30 May 2018,[48] which is referred to as an ultrasound of the “left hip”. Dr Horsley points out that this should be the “right” hip. Although this was raised during addresses at the end of the trial, no one could state authoritatively that the ultrasound was of the right hip. I tend to the view that it is highly probable that is the case, particularly given the findings which are noted on the right hip, that is, gluteus medius tendinosis and trochanteric bursitis.
[48]See exhibit 5 at page 76 PCB
72 Dr Blombery noted that the plaintiff had suffered injury to his right hip area in the course of his employment on 30 November 2016, with imaging showing trochanteric bursitis and other minor changes. After examination, he expresses the opinion that the plaintiff has suffered soft-tissue injuries to the affected area, but the ongoing pain suffered by him is caused by development of Non-Specific Pain Syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, and such non-painful stimuli become interpreted by the cerebral cortex as being painful. Dr Blombery states that this process is also termed central sensitisation and is an organic disorder of pain nerve pathways. Dr Blombery also is of the opinion that the plaintiff had developed severe secondary depression and anxiety as a result of the injury, but notes this is outside his area of expertise. Dr Blombery considered that the prognosis for recovery at the time of examination was “poor” and it is very unlikely there will be any significant change in his level of disability in the foreseeable future.[49]
[49]See exhibit 3 at page 66 PCB
73 Dr White, the psychiatrist, considered the plaintiff to be suffering from a major depressive disorder characterised by low mood and other physical, psychological and social symptoms of depression. Furthermore, Dr Whyte was of the opinion that the plaintiff suffers from an obsessive compulsive disorder characterised by obsessions and compulsions which are time consuming and causing clinically-significant distress, as well as impairing his functioning.
74 Dr White also noted that “it appears that both conditions are directly related to events surrounding a physical injury in the workplace”. He also noted that the plaintiff described chronic pain and physical disability which significantly impacts upon his vocational circumstances and his activities of daily living.
75 Dr White also obtained a history of significant bullying and harassment in the workplace when, over a period of time, he attempted to return to work on light duties.
76 Ultimately, Dr White expresses the opinion that the plaintiff’s “chronic psychiatric symptoms are alone indicative of a permanent incapacity for any employment”.[50]
[50]See exhibit 12 at pages 168-169 PCB
Medical Panel reasons and Certificate of Opinion dated 4 April 2016
77 I refer to the Medical Panel which was lodged on 31 January 2018. At that time, the Panel noted from the referral that the plaintiff had “an accepted claim for right hip injury/ligament damage” relevant to an incident that occurred on 30 November 2016. In particular, it was noted that that claim was accepted in relation to the physical injuries and it was also noted that subsequently a claim was accepted for a secondary psychological condition.
78 Weekly payments were terminated by the agent of the defendant on 24 November 2017 on the basis that the plaintiff was not incapacitated for work in relation to his physical and psychological injuries. This decision was challenged before the Medical Panel.
79 The Panel consisted of Dr David Murphy, a consultant physician, Mr Ian Jones, an orthopaedic surgeon, Professor Geoffrey Littlejohn, a rheumatologist and Drs Chris Grants and Steven Adlard, both psychiatrists. In a certificate of opinion dated 4 April 2018, the Panel recorded the following:
“Question 1 What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the worker is suffering from persistent symptoms following a soft tissue injury of the right iliac crest region and an Adjustment Disorder with mixed anxiety and depressed mood and features of obsessive-compulsive disorder.
The Panel is of the opinion that the worker has entrapment of the right lateral cutaneous nerve of the thigh[51]
[51]The Panel was of the opinion that this was not related to any employment injury.
Question 2:What is the extent to which any medical condition of the worker:
a) resulted from or was materially contributed to by:
b) results from or is materially contributed to by:
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion the worker’s persistent symptoms following a soft tissue injury of the right iliac crest region and an Adjustment Disorder with mixed anxiety and depressed mood and features of obsessive-compulsive disorder results from, was and is materially contributed to by the claimed right hip injury/ligament damage injury.
The Panel is of the opinion that the worker’s constitutional condition of entrapment of the right lateral cutaneous nerve of the thigh does not result from and is not materially contributed to by the claimed right hip injury/ligament damage injury.
Question 3Did or does the worker have an incapacity for work? If so, what is the extent to which the worker’s incapacity for work:
a) resulted from or was materially contributed to by;
b) results from or is materially contributed to by:
any, and if so which of the claimed psychological and/or physical injuries?
Answer:In the Panel’s opinion the worker did and does have an incapacity for work and this incapacity results from, was and is materially contributed to by the claimed right hip injury/ligament damage injury.”[52]
[52]See exhibit 7 at pages 100-101 PCB
The evidence of Dr Stephen Stern
80 The plaintiff also relies on the report from the consultant psychiatrist, Dr Stephen Stern, dated 28 June 2018, in respect to a consultation on the same date.[53] Dr Stern examined the plaintiff on behalf of the defendant (or its agent) to determine whether there was any psychiatric permanent impairment for the purposes of the AMA Guidelines. Such assessment was on the basis that there had been an accepted psychological claim.
[53]See exhibit 4 at pages 68-75 DCB
81 After obtaining a history and making a mental state examination, Dr Stern stated:
“This 51 year old man suffered a work injury to his right hip on 30 November 2016 and has been treated with cortisone injections. He has been left with constant pain in the right hip, buttock and groin. He was victimised at work by management and mechanics after his injury and he stopped work in May 2017. He has not returned since.
As a result of his work injury and the victimisation he is now suffering from chronic major depressive disorder. There is a past history of victimisation at work in 2015 and of a low back injury at work in around 1990. He was on an antidepressant (Cymbalta) in 2015 because of back pain. He now sees a psychologist and psychiatrist and he takes antidepressant medication. His psychiatric state has stabilised at the present time.”[54]
[54]See exhibit 4 at pages 52-53 PCB
82 Dr Stern did not proffer any opinion as to the capacity of the plaintiff – no doubt consistent with only being required to determine whether there was any psychiatric permanent impairment for the purposes of the AMA Guidelines.
Medico-legal reports relied on by the Defendant
83 It is convenient to refer to the medico-legal reports tendered by the defendant.
(i)Report of the occupational physician, Dr Louise Barberis
84 Dr Barberis examined the plaintiff on 5 July 2017.[55]
[55]See exhibit “B” at pages 7-17 DCB
85 Dr Barberis records that she understood the reason for the referral to her was to assist in determining whether the Claim should be admitted, and if appropriate, to assess suitable return-to-work options, utilising a worksite visit.
86 Dr Barberis obtained a history of the incident on 30 November 2016, made an examination and had the following diagnostic investigations.
·The ultrasound of the right hip on 20 December 2016, consistent with a torn gluteus medius tendon with associated trochanteric and subgluteus medius bursitis.
·An x-ray of the pelvis and hips undertaken on 20 December 2017, which revealed acetabular subchondral on the right degenerative changes to the lumbar spine and an MRI scan of the right hip undertaken on 10 March 2017, which revealed a mild cam deformity of the femoral head without evidence of impaction lesions, labral or chondral injury, and no evidence of gluteal tendinosis or trochanteric bursitis. Furthermore, she viewed the whole body scan dated 28 April 2017, which revealed no evidence of enthesopathy in either iliac crest.
87 Dr Barberis stressed that the diagnosis was not “entirely clear”, although she considered that the plaintiff is likely to have had a soft-tissue injury consistent with a tendinopathy affecting his right hip, iliac crest and gluteal region. Furthermore, she thought, at the time of her examination, he had a secondary adjustment disorder with depression.
88 Although Dr Barberis obtained a history of an earlier lumbar injury with lumbar pain, she considered the right-hip injury to be an acute new injury as a result of the incident described to have occurred on 30 November 2016.
(ii)Reports of the consultant psychiatrist, Dr Natalie Krapivensky
89 Dr Krapivensky examined the plaintiff on 7 August 2007;[56] then provided a supplementary report, dated 29 August 2017[57] and further examined the plaintiff on 18 April 2019.[58] Dr Krapivensky recalls that the reason for her examinations were to assist in making a decision about the worker’s claim for compensation in relation to a psychological condition.
[56]See report dated 17 August 2017, exhibit “C” at pages 18-25 DCB
[57]See exhibit “C” at page 26 DCB
[58]See report dated 23 April 2019, exhibit “C” at pages 27-33 DCB
90 Dr Krapivensky obtained the history from the plaintiff that he injured his right hip on 30 November 2016 and, in particular, obtained a nil history in relation to past psychiatric problems. Dr Krapivensky also obtained a history of alleged bullying in the workplace.
91 In her first report, Dr Krapivensky opined that the plaintiff had suffered major depression, partially treated, and that at the time of her examination he had a psychiatric work capacity for modified or alternative duties with another employer. She also noted he was taking a significant amount of medication and it would be her view that this excludes him from being engaged in professional duties as a driver.
92 In her subsequent report, Dr Krapivensky makes clear that the psychological condition diagnosed by her is “materially contributed to the claimed physical incident on 30 November 2016”.
93 When reviewed on 18 April 2019, Dr Krapivensky obtained a further history and details of his medication. Again, she performed a mental state examination.
94 Dr Krapivensky concluded that the plaintiff continued to have reduced symptoms of depression in the context of multiple medical problems, noting that he had been diagnosed with rheumatoid arthritis since her last examination. Dr Krapivensky considered, also, that such condition had improved and that he had a capacity to work from a psychiatric perspective, but was not motivated to do so.
(iii)Report from the consultant occupational physician, Dr David Barton, who examined the plaintiff on 16 October 2017[59]
[59]See report of same date, exhibit “D” at pages 34-40 DCB
95 Dr Barton noted that the reason for the referral from him was to make an assessment of the plaintiff’s ongoing entitlement for weekly payments and, if appropriate, devise a return-to-work plan and an offer of employment.
96 Dr Barton obtained the history of the incident on 30 November 2016, when the plaintiff injured his right hip. Examination at that time revealed that he was using a walking stick in the right hand and walked with a limp favouring the right leg. Specific examination of the right hip showed some moderate tenderness around the lateral aspect, including the greater trochanter and up towards the iliac crest. There was a general limitation of all hip movements with reported pain. Gentle rolling of the hip produced some discomfort. There was no fixed flexion deformity.
97 Generally, Dr Barton was of the view that his investigations have failed to identify any particular pathology and “certainly nothing that would account for his persisting and apparently disabling symptoms”.[60] Dr Barton went on to state that although he accepted that the plaintiff most probably had an initial mild problem at the time of the examination, he considered that the plaintiff had recovered from any mild soft-tissue injury of the right hip that may have occurred as a result of the work episode. Furthermore, he did not believe there was any incapacity related to the claimed hip injury.
(v)The report of Dr Elder, who examined the plaintiff on 19 June 2018 to provide an impairment assessment under the AMA Guidelines[61]
[60]See exhibit “D” at page 36 DCB
[61]See report dated 19 June 2018, exhibit “D” at pages 41-44 DCB
98 The plaintiff described details of his injury to Dr Elder and complained of continuing discomfort around the top of the iliac crest – pointing to a specific region from where it radiates into his right buttock and can refer around to the groin.
99 Examination revealed him to be tender specifically over the iliac crest. Dr Elder also assessed hip movements and found significant inconsistency between formal and informal examination and considered that such movements could not be considered valid.
100 Dr Elder notes that the Medical Panel found and concluded that the plaintiff “is suffering from persistent symptoms following a soft tissue injury of the right iliac crest region”, but goes on to note that the condition designated by the Medical Panel does not rate a mention in the guides to permanent impairment.
(vi)The reports of the specialist occupational physician, Dr Joseph Slesenger
101 Dr Slesenger initially examined the plaintiff on 30 October 2018,[62] a supplementary report dated 30 January 2019[63] and a further examination on 30 April 2019.[64]
[62]See report dated 7 October 2018, exhibit “D” at pages 57-66 DCB
[63]See exhibit “D” at pages 67-68 DCB
[64]See report dated 8 May 2019, exhibit “D” at page 282
102 In his first report, Dr Slesenger obtained a history of the right hip injury on 30 November 2016 and made an examination. He noted that the plaintiff walked with a pronounced right-sided limp, with reduced weight bearing on the right side with the aid of a walker. Palpation of the right hip revealed severe tenderness to minimal palpation over the lateral aspect of the hip and the interior hip.
103 Dr Slesenger was of the view that clinical examination demonstrates severe restriction of the range of right-hip movements, however these improved upon distraction. Clinical examination also demonstrated other non-organic features. He also accepted that the plaintiff suffered from a psychological impairment, but this was outside his area of expertise.
104 In particular, Dr Slesenger accepted that the plaintiff had a right-hip soft-tissue injury, which had now resolved. Furthermore, he was of the opinion that the plaintiff’s incapacity for work was not related to the physical injury under consideration, but considered that there may be other factors affecting his presentation. Dr Slesenger considered that the plaintiff was physically capable to return to work as an auto parts interpreter, auto parts salesman, delivery driver, courier and retail sales assistant.
105 In his summary, following his last examination, on 30 April 2019, Dr Slesenger states:
“Mr Rigbye presents over 3 years after a fall, sustaining injury to his right hip.
This has been managed conservatively and he describes residual right hip pain with associated functional limitations, affecting his occupational, recreational and domestic capacity.
He ceased work after the onset of symptoms, but was able to return to work performing light duties. He subsequently ceased work in mid-2017 and has not returned to work since.
Clinical examination continued to demonstrate severe restriction to the range of hip movements. Clinical examination continued to demonstrate severe restriction to the range of hip movements. Clinical examination continued to demonstrate improved range of movements upon distraction, as well as other non-organic features. The callosities on his hands have settled, although clinical examination demonstrated residual ingrained dirt.
I remain of the opinion that the work-related right hip impairment is now resolved and the current residual impairment is not related to the workplace exposures under consideration.
In addition, he also describes psychological impairment, which attributes to workplace harassment. This is outside my area of expertise.”[65]
[65]See exhibit “D” at page 79 DCB
(vii) The report of the consultant orthopaedic surgeon, Mr Clive Jones
106 Mr Jones examined the plaintiff on 30 October 2018.[66]
[66]See report dated 14 November at pages 83-87 DCB
107 Mr Jones obtained a history of the right-hip injury. On examination, Mr Jones found tenderness over the greater trochanter and the iliac crest, although it was difficult to examine the right hip due to hip discomfort. In his report, Mr Jones states that he found it difficult to make a firm diagnosis in medical terms. Whereas the complainant appeared to have pain around the iliac crest, which is essentially muscular in nature, there was no pathology in the hip joint itself, such as osteoarthritis. In particular, he notes that prior to the hip injury, the hip area was perfectly normal and the plaintiff was symptom free in that area. Since the injury, Mr Jones notes that he has been affected by ongoing pain around the hip, which appears to be a permanent problem to him. Again, Mr Jones noted the difficulty to assess the physical condition was due to what appears to be inordinate, or unusual, or ongoing symptoms of hip pain which are not borne out by the physical investigations so far carried out. He suspected there was a functional component and psychological reaction in the presentation.
108 Finally, Mr Jones noted that although difficult to assess the degree of disability due to adverse psychological reaction, which is clearly present, he was of the opinion, had the injury not taken place, he believed the plaintiff would have been capable of normal employment as a spare parts interpreter and distributor, but Mr Jones states that he was clearly unable to perform such duties at this point of time.
(viii)The report of the consultant psychiatrist, Associate Professor Peter Doherty
109 Associate Professor Doherty examined the plaintiff on 21 January 2019.[67]
[67]See report dated 28 January 2019, exhibit “F” at pages 88-99 DCB
110 Associate Professor Doherty records that the purpose of his examination was to obtain an opinion on the plaintiff’s condition and work capacity from a psychiatric perspective only.
111 Associate Professor Doherty obtained a history of the right-hip injury on 30 November 2016 and obtained a detailed history of subsequent events, including current treatment and medications. In particular, he performed a mental state examination.
112 Associate Professor Doherty diagnosed the plaintiff to suffer an adjustment disorder that is mild in severity. Furthermore, he asserted there was no clear evidence of an obsessive compulsive disorder.
113 Associate Professor Doherty asserted that the plaintiff’s claimed incapacity appears more related to the unrelated condition of rheumatoid arthritis, but there be no incapacity from any psychiatric perspective.
114 Associate Professor Doherty considered that the Adjustment Disorder diagnosed by him had a material contribution from the persistent symptoms of a soft-tissue injury to the iliac crest region as opined by the Panel.
(ix) The report of the orthopaedic and trauma surgeon, Dr Graeme Doig
115 Dr Doig examined the plaintiff on 1 May 2019[68] and supplied a supplementary report dated 13 June 2019.[69]
[68]See report dated 14 May 2019, exhibit “G” at pages 100-106 DCB
[69]See exhibit “G” at pages 107-109 DCB
116 Dr Doig obtained a history of the right-hip injury on 30 November 2016 and the subsequent difficulty that the plaintiff had with such condition, together with the various treatment. He also noted that the plaintiff was diagnosed with rheumatoid arthritis about twelve months prior to his examination.
117 Clinical examination revealed that the plaintiff used a wheeled walking frame with Dr Doig noting that he had an apparent limp while walking without the frame, but not Trendelenburg in nature, which one would normally see with a hip problem.
118 Dr Doig considered that “at this stage” the diagnosis appears to be one of a non-specific soft-tissue injury around the right hip area with a lack of significant pathology on the imaging to date. There appeared to be a degree of functional overlay and abnormal illness behaviour at the time of his assessment.
159 For the record, I do find that the plaintiff did suffer a right hip and groin injury on or about 30 November 2016, during the course of his employment with the employer in the circumstances that he has described in his affidavit. Furthermore, after a consideration of all the evidence, and bearing in mind that the assessment of “serious injury” must be made at the time that the application is heard by the Court,[99] I do find that the right hip injury is a “serious injury” within the meaning of paragraph (a) of the definition of serious injury contained within s325(1) of the Act.
[99]See s325(2)(j) of the Act
160 In particular, I consider such injury to be “permanent” within the meaning of the Act and the organic consequences of such injury in relation to “pain and suffering” and “loss of earning capacity” are:
“when judged by comparison with other cases in the range of possible impairments … as the case may be [can be] fairly described as being more than significant and marked and as being at least very considerable … .”
161 Furthermore, I am satisfied that the plaintiff has established as at the date of hearing of the application he has a loss of earning capacity of 40 per cent or more and will, after the date of hearing, continue to permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
162 I make such findings for the following reasons:
(a)From when the plaintiff first consulted his general practitioner, Dr Hiran Edirisinghe, in relation to his right hip condition, he has complained consistently of fluctuating pain localised to his right hip and groin. In particular, I refer to the following:
(i)The history obtained by the treating orthopaedic surgeon, Associate Professor Raphael Hau, on 23 February 2017 that the plaintiff was suffering “an acute right groin and greater trochanteric pain which has been persistent”.[100]
[100]. See Exhibit 2 at page 29 PCB
(ii)The history obtained by the treating psychiatrist, Dr Anupam Pokharel, on 24 August 2017 that he had hurt his right hip joint at work in November 2016 and commenced to experience hip pain.[101]
[101]See Exhibit 2 at page 39 PCB
(iii)The history obtained by the consultant physician, Dr Peter Blombery, on 18 April 2019 that the plaintiff had suffered sharp pain in his right hip radiating into the groin as a result of the incident on 30 November 2016 and such pain was persisting.[102]
[102]See Exhibit 3 at pages 63-64 PCB
(iv)The history obtained by the consultant psychiatrist, Dr Stern, (on behalf of the insurer) on 28 June 2018 that the plaintiff experienced pain in his right hip, buttock and groin as a result of the incident on 30 November 2016 and such pain has continued.[103]
[103]See Exhibit 4 at page 69 PCB
(v)The reasons for the opinion of the Medical Panel who examined the plaintiff on both 14 March 2018 (Dr David Murphy, a physician; Mr Ian Jones, an orthopaedic specialist; and Professor Geoffrey Littlejohn, a rheumatologist) that the plaintiff had no problems with pain and dysfunction of the right hip region prior to 30 November 2016 and as a result of the incident on 30 November 2016, he immediately felt pain in the right lower lateral trunk and hip region and that pain has continued.[104]
[104]See Exhibit 7 at pages 102, 103 and 104 PCB
(vi)The occupational physician, Dr Robyn Horsley, obtained a history on 7 March 2019 that he moved a bumper bar which was awkward and he felt “sharp pain” in his right hip and right groin and such pain has continued since then.
(vii)Even those doctors who examined the plaintiff on behalf of the defendant obtained a clear history of the commencement of right hip and groin pain as a result of the incident on 30 November 2016. I refer to the history obtained by the occupational physician, Dr Louise Barberis, obtained on 5 July 2017 (see exhibit “B” at page 8 DCB); the history obtained by the consultant psychiatrist, Dr Natalie Krapivensky, on 7 August 2017 (see exhibit “C” at page 20 DCB); the history obtained by the occupational physician, Dr David Barton, on 13 October 2017 (see exhibit “D” at page 34 DCB); the history obtained by the occupational physician, Dr Joseph Slesenger on 30 October 2018 (see exhibit “D” at pages 58-59 DCB).
(viii)In particular, I refer to the last two orthopaedic medical examinations conducted on behalf of the defendant, that by the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 30 October 2018, who obtained a history that the incident on 30 November 2016, the plaintiff became aware of pain in the right hip and groin area with there being no previous history of any right hip or groin problem (see exhibit “E” at page 84 DCB). Again, the orthopaedic surgeon, Dr G Doig, examined the plaintiff on 1 May 2019 who obtained a history of the incident on 30 November 2016 and was complaining of buttock and lateral hip pain and occasionally discomfort in the groin at the right hip (see exhibit “G” at page 102 DCB).
(b)The plaintiff is supported by his general practitioner, Dr Edirisinghe, who arranged for the plaintiff to undergo an ultrasound of the right hip on 20 December 2016 which revealed a torn right gluteus medius and associated bursitis. Dr Edirisinghe supported the plaintiff in that he had an ongoing right hip and groin injury.
(c)The plaintiff is also supported by his treating orthopaedic specialist who commenced to treat the plaintiff on 23 February 2017 at which time Associate Professor Hau diagnosed the plaintiff had suffered a right hip iliac crest enthesopathy (involving the right hip) and in particular, he is of the opinion that there had been no aggravation of any pre‑existing medical condition – such as his low back condition prior to that event. Associate Professor Hau has treated him over the years with injections to the hip area together with various medications to relieve the pain. At the time of the hearing, Associate Professor Hau was to see the plaintiff in December 2019.
(d)Furthermore, the Medical Panel in answer to one of the questions posed expressed the opinion that the plaintiff is suffering from persistent symptoms following a soft tissue injury of the right iliac crest region. The Panel also went on to find that the plaintiff also suffers an Adjustment Disorder with mixed anxiety and depressed mood.
(e)It is also to be noted that in a very thorough report by the occupational physician, Dr Robyn Horsley, who examined the plaintiff on 7 March 2019, she was of the opinion that the plaintiff had been diagnosed with iliac crest insertional tendonitis and that in particular, he had ultrasound evidence on 30 May 2018 of “persistent gluteus medius tendonosis and trochanteric bursitis”. The reference to that ultrasound is the one where it is highly probable that the reference to the left hip is wrong and should be the right.
(f)Clearly enough, there is medical opinion expressed on behalf of the employer that the plaintiff has no MRI scan evidence of anything significant in the right hip region, or, alternatively, suffers from some degree of functional overlay or indeed giving a false picture by inconsistent movements under examination. I reject those opinions and put much emphasis on the treating general practitioner, the treating orthopaedic surgeon and indeed the medico‑legal opinion obtained from Dr Robyn Horsley and to a lesser extent the Medical Panel reasons for decision.
It is to be noted that the MRI scans seemingly relied on by various doctors rendering opinions on behalf of the defendant were MRIs arranged by the treating orthopaedic surgeon on 10 March 2017 and 24 May 2017 were obviously available to him and did not cause him to change his diagnosis or treatment which included injections and ongoing medication.
(g)I reject any suggestion that any right hip/groin pain suffered by the plaintiff as a result of the incident on 30 November 2016 was in some way connected to his previous ongoing low back condition. There is no direct evidence of this whatsoever and indeed such proposition is directly contrary to the opinion of the treating orthopaedic surgeon.
(h)Furthermore, although the plaintiff may suffer some symptoms of rheumatoid arthritis, I do not accept any suggestion that rheumatoid arthritis can explain the symptoms which commenced immediately after this incident on 30 November 2016 and have been ongoing to date. In this respect, it is also to be noted that the rheumatologist, Dr Farshad Ghazanfari, initially consulted with the plaintiff on or about 30 April 2018, when a history was given that since August 2017, the plaintiff had pain and stiffness in the small joints of his hands and also noticed swelling of the joints at his wrist.
Dr Ghazanfari also obtained a history of the incident in November 2016 and seemingly states that the plaintiff “has evidence of iliac tendinopathy and trochanteric bursitis for which he had an injection”. This reference to the right hip area does not in terms say any pain emanating from that area is explained by rheumatoid arthritis.
(i)I accept that the evidence of the plaintiff that his right hip injury which is of an organic nature causes constant fluctuating daily pain which is aggravated by prolonged sitting, standing or walking. Furthermore, I do accept that because of problems with walking, he normally has to use a walking stick if he is leaving the house and has to walk any distance. I also accept that he great difficulty performing household work including vacuuming, standing up to do the dishes and hanging out washing on the line. He needs friends to assist him on his property, whether it be the building of his premises or looking after sheep. Also, I accept that he has difficulty playing with his grandchildren because of that injury.
Prior to the injury, he enjoyed motorbike riding and he used to go deer hunting and has a licence to hunt deer. Since his hip injury, he has only enjoyed very short rides on his motorbike once every few months and he is no longer capable of going hunting because of the difficulty crossing terrain.
(j)The plaintiff gave evidence and I accept that he currently takes Lyrica and Palexia Pain and Panamax for his hip and groin pain when necessary.
He is still under the care of his general practitioner and more particularly under the care of his treating orthopaedic surgeon, Associate Professor Raphael Hau and was due to for further review in December 2019.
(k)In such circumstances, I consider that the narrative test is satisfied and that the plaintiff has a “serious injury” within the meaning of the Act. Leave will be granted to bring common law proceedings for pain and suffering damages.
(l)The plaintiff was employed full time by the employer and Exhibit 8 sets out the earnings of the plaintiff over the relevant years.[105] Such exhibit demonstrates that the plaintiff was earning in the years up to his hip injury on 30 November 2016 approximately $46,000 per annum. Sixty per cent of such sum is $27,600.
(m)As I have already recorded, it is incumbent upon the plaintiff to establish that in addition to the requirements of paragraph (c) of s325(2) of the Act, he must establish as a matter of probability that at the date of the hearing he had a loss of earning capacity of 40 per cent more of his without injury earnings and further that after the date of the hearing, that he will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
After a consideration of all the evidence, I am satisfied that the plaintiff has no realistic capacity to perform any regular work on a full time basis and, or part-time basis. I have come to such conclusion for the following reasons:
(i)The plaintiff has no formal qualifications other than that of being a butcher which he has not done for many years and would incapable of performing such work given the amount of standing up and moving around. His industrial background has involved driving and security guard work, all of which he would be incapable of because of his right hip injury.
(ii)In particular, I refer to the work restrictions in relation to the right hip advocated by Dr Horsley in her report dated 7 March 2019 which I consider reasonable given his complaints of pain and restriction in the right hip. When considering what is suitable employment, it must be borne in mind that when working for the employer the plaintiff also had his ongoing back condition which was acknowledged by the employer and an attempt was made to accommodate his ongoing back problems. It is to be noted that again, Dr Horsley in her report sets out the various functional tolerances of his back condition and again they are set out in her report leading to the proposition that the plaintiff is likely to remain out of the workforce into the longer term. I do stress that even taking the right hip alone in isolation (which I consider to be unrealistic given the pre‑existing back condition), I am still of the opinion that realistically the plaintiff has no capacity for work given the ongoing pain and restrictions.
Has the Plaintiff suffered a “psychiatric injury”, and if so, what is the nature of such condition and is it a “serious injury” within the meaning of the Act
[105]See Exhibit 8 at page 113 PCB
163 Although perhaps not strictly necessary, I also find that consistent with the evidence of his treating psychiatrist, Dr Anupam Pokharel, the plaintiff has developed a Major Depressive Disorder, the consequences of which satisfy the narrative test in that “when judged by comparison with other cases in the range of possible mental behaviour disturbances or disorders, as the case may be, ….[can be] … fairly described as being more than serious to the extent of being severe”.
164 Furthermore, in particular, I accept the opinion of the treating psychiatrist that his psychiatric condition has been caused as a secondary response to his right hip pain and associated limitations together with the negative experiences that the plaintiff endured at work when he returned to work for about four or five weeks on a return to work program before finally ceasing in May 2017.
165 I should note that the assertions of the plaintiff that he was made fun of, bullied and was confronted by various cartoon depictions of him around the work site were not challenged in any way by Senior Counsel for the defendant.
166 I set out my reasons for such findings:
(i)From early days, the treating general practitioner, Dr Edirisinghe, noted that the plaintiff was developing significant depression particularly so when he returned to work on modified duties and became distressed by the reaction of his work colleagues. Dr Edirisinghe initially referred the plaintiff to the psychologist, Ms Trinette Cordeiro, who initially consulted with the plaintiff on 21 June 2017 and continued to see him up to approximately February 2019. Ms Cordeiro found the plaintiff to have high levels of depression, anxiety and stress brought about by his right hip pain and the experiences he underwent when he returned to work.
(ii)Dr Edirisinghe referred the plaintiff to the treating psychiatrist, Dr Anupam Pokharel, who initially consulted with the plaintiff on 24 August 2017 and as at the date of hearing had consulted with the plaintiff approximately 24 times with the last examination before he gave evidence in Court was on 21 August 2019.
I found Dr Pokharel a very impressive witness both in the presentation of his evidence in Court and the very detailed notes he retained in relation to each consultation with the plaintiff. I accept the diagnosis of Dr Pokharel that the plaintiff has suffered and continues to suffer Major Depression due to his hip joint pain which developed at work and also his experience when he returned to work on the return to work job in early 2017. Such opinion accords with the evidence before me.
Dr Pokharel was of the opinion that the plaintiff remained totally incapacitated for any work, even purely from a psychiatric point of view and this was not likely to improve further until he had significant improvement in his pain. At the time of his last report, Dr Pokharel considered the plaintiff to be permanently incapacitated for work even purely from a mental health point of view. Although he noted there had been some improvement and the purpose of treatment is to bring improvement but also if there is no improvement to prevent any further decline.
(iii)It is to be also noted that the consultant psychiatrist, Dr Gregory White, who examined the plaintiff on 5 July 2019, also diagnosed the plaintiff to be suffering from a Major Depressive Disorder which is directly related to events surrounding the physical injury in the workplace and the history of bullying and harassment in the workplace. Dr White found the plaintiff to be totally incapacitated. Furthermore a similar opinion is advanced by Dr Stephen Stern, who examined the plaintiff on 28 June 2018, at the behest of the employer (or its agent).
I reject the opinion of Associate Professor Doherty that the plaintiff suffered “an Adjustment Disorder that is mild in severity” and that such condition caused the plaintiff no incapacity for work from a psychiatric perspective. However, it is to be noted of course that Associate Professor Doherty considered that the mild Adjustment Disorder diagnosed by him was said to have “a material contribution from the persistent symptoms of a soft tissue injury to the iliac crest region as opined by the (indistinct)”.[106]
(iv)I am of the opinion that the narrative test is satisfied when one considers the treatment which the plaintiff has undergone, the various medications prescribed by both his general practitioner and treating psychiatrist (which includes 150 milligrams of Pristiq in the morning and 60 milligrams of Mirtazapine or Avanza at night. In particular, bearing in mind the opinion of the treating psychiatrist that the plaintiff is totally incapacitated as a result of his psychiatric condition has to be considered “severe” within the meaning of the Act.[107] Again, given the opinion of Dr Pokharel, I am satisfied that the condition is “permanent” within the meaning of the Act.
[106]See Exhibit F at page 95 DCB
[107]See Advanced Wire and Cable Pty Ltd & Anor v Abdulle (op cit) at paragraph [60]-[64]; Acir v Frosster Pty Ltd (op cit)
Conclusion
167 Pursuant to s355(5)(a) of the Act, I am satisfied that right hip injury suffered by the plaintiff on or about 30 November 2016 is a “serious injury” within the meaning of paragraph (a) of the definition of serious injury contained in s325(1) of the Act.
168 I grant leave to the plaintiff to bring common law proceedings in respect of such injury for “pain and suffering” and “pecuniary loss damages”.
169 Furthermore, pursuant to s355(5) of the Act, I am satisfied that what I have referred to as “the psychiatric injury” is a “serious injury” within the meaning of paragraph (c) of the definition of “serious injury” contained in s325(1) of the Act.
170 I grant leave to the plaintiff to bring common law proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect of such injury.
171 I will hear the parties on the question of costs.
ANNEXURE “A”
1 The plaintiff tendered the following material:
EXHIBIT 1
– affidavits of the plaintiff, sworn 5 July 2018, 16 May 2019, 3 June 2019 and on 26 August 2019.
(Such material is found at pages 7-19, 22-24 and 174-176 of the Plaintiff’s Court Book (“PCB”))
– affidavits of a friend of the plaintiff, Gordon Cooper, sworn on 31 May 2019 and on 4 June 2019.
(Such material found at pages 15-19 and 153-155 PCB).
EXHIBIT 2
– reports of the psychologist, Ms Trinette Cordeiro, dated 12 April 2018 (two) and 7 December 2017.
(Such material found at pages 24-28 PCB)
– reports of the treating orthopaedic surgeon, Associate Professor Raphael Hau, dated 18 December 2017 (two) and 7 September 2017 (two).
(Such material found at pages 29-33 PCB)
– reports of the treating psychiatrist, Dr Anupanum Pokharel, dated 3 May 2019 and 14 December 2017.
(Such material found at pages 34-43 PCB)
– reports of the treating general practitioner, Dr H Edirisinghe, dated 15 December 2017 and 10 August 2017 and 4 June 2019.
(Such material found at pages 44-62 and 153-154 PCB).
EXHIBIT 3
– medico-legal report of the consultant physician, Dr Peter Blombery, dated 29 April 2019.
(Such material found at pages 63-67 PCB).
EXHIBIT 4
– medico-legal report of consultant psychiatrist, Dr Stephen Stern, dated 28 June 2018.
(Such material found at pages 68-75 PCB).
EXHIBIT 5
– x-ray and scan of pelvis, hips and spine, dated 30 May 2019.
– ultrasound-guided right iliac crest region injection, dated 28 July 2017.
– MRI scan of the right iliac crest, dated 24 May 2017.
– whole body scan, dated 27 April 2017.
– ultrasound-guided right hip injection, dated 23 January 2017.
– ultrasound of right hip, dated 20 December 2016.
(Such material found at pages 76-82 PCB).
EXHIBIT 8
– Worker’s Injury Claim Form, dated 20 January 2017.
– Employer Injury Claim Report, dated 30 January 2017.
– Section 98C Claim Form, dated 23 January 2018.
– Notice of Entitlement, dated 9 July 2018.
(Such material found at pages 83-86 and 94-99 PCB).
EXHIBIT 7
– Medical Panel Reasons and Certificate of Opinion dated 4 April 2018.
(Such material found at pages 110-112 PCB).
EXHIBIT 8
– Taxation Summary.
(Such material found at page 113 PCB).
EXHIBIT 9
– reports of the rheumatologist, Dr Farshad Ghazanfari, dated 31 May 2018.
(Such material found at pages 114-115 PCB)
– further reports dated 10 August 2017, 30 April 2018, 31 May 2018 and 14 August 2019.
(Such material found at pages 201-209 of the Defendant’s Court Book (“DCB”)).
EXHIBIT 10
– medico-legal report of occupational physician, Dr Robyn Horsley, dated 7 March 2019.
(Such material found at pages 116-123 PCB).
EXHIBIT 11
– report of senior occupational rehabilitation consultant, Dr Paul Hartley of Vocational Directions Pty Ltd, dated 10 May 2019.
(Such material found at page 124-152 PCB).
EXHIBIT 12
–medico-legal report of consultant psychiatrist, Dr Gregory White, dated 8 July 2019.
(Such material found at pages 157-172 PCB).
2 The defendant tendered the following material:
EXHIBIT “A”
– affidavit of Michael Gaze, manager at Eastern Motor Group, sworn 4 June 2019.
(Such material found at pages 2-6 DCB)
EXHIBIT “B”
– report of the occupational physician, Dr Louise Barberis, dated 5 July 2017.
(Such material found at pages 7-17 DCB)
EXHIBIT “C”
– reports of the consultant psychiatrist, Dr Natalie Krapivensky, dated 17 August 2017, 29 August 2017 and 23 April 2019.
(Such material found at pages 18-33 DCB)
EXHIBIT “D”
– report of occupational physician, Dr David Barton, dated 16 October 2017
– report of occupational physician, Dr David Elder, dated 19 June 2018
– reports of the specialist occupational physician, Dr Joseph Slesenger, dated 7 November 2018, 30 January 2019 and 8 May 2019.
(Such material found at pages 34-82 DCB)
EXHIBIT “E”
– report of the orthopaedic surgeon, Mr Clive Jones, dated 14 November 2018.
(Such material found at pages 88-87 DCB)
EXHIBIT “F”
– psychiatric report of Associate Professor Peter Doherty, dated 29 August 2019.
(Such material found at pages 88-99 DCB)
EXHIBIT “G”
– reports of the orthopaedic surgeon, Dr Graeme Doig, dated 14 May 2019 and 13 June 2019.
(Such material found at pages 101-109 DCB)
EXHIBIT “H”
– Rehab Management Return to Work Suitable Duties Plan, dated 18 July 2017.
(Such material found at pages 110-113 DCB)
– Occupational Rehabilitation Return to Work Service Initial Report, dated 24 July 2017.
(Such material found at pages 114-124 DCB)
– Rehab Management CSS Report, dated 4 December 2017.
(Such material found at pages 125-132 DCB)
– NES 130 Week Vocational Assessment Report, dated 21 December 2018.
(Such material found at pages 133-148 DCB)
EXHIBIT “I”
– medical records and notes of general practitioner, Dr Hiran Edirinsinghe.
(Such material found at pages 167-200 DCB)
EXHIBIT “J”
– referral to Dr Farshad Ghazanfari, rheumatologist, dated 10 August 2017.
(Such material found at page 201 DCB)
EXHIBIT “K”
– clinical notes of the treating psychiatrist, Dr Anupam Pokheral, dated 17 July 2019.
(Such material found at page 211 DCB)
EXHIBIT “L”
– video surveillance footage of the plaintiff, dated 28 June 2018.
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