Sacco v Wattyl Australia Pty Ltd
[2010] VCC 1981
•13 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03834
| DEAN SACCO | Plaintiff |
| v | |
| WATTYL AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 November 2010 |
| DATE OF JUDGMENT: | 13 December 2010 |
| CASE MAY BE CITED AS: | Sacco v Wattyl Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1981 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered a psychiatric injury – whether the consequences of the psychiatric injury were severe in terms of pain and suffering and loss of earning capacity consequences – whether the plaintiff was prevented from establishing loss of earning capacity by failing to meet the requirements of subsection (38)(g): section 134AB(38)(d) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC | Shine Lawyers |
| with Mr B Anderson | ||
| For the Defendant | Ms S Manova | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 17 August 2009, by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by his arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr C Blanden SC appeared with Mr B Anderson of Counsel for the plaintiff and Ms S Manova of Counsel appeared for the defendant.
4 The plaintiff submitted that he had suffered a severe mental or permanent severe behavioural disturbance or disorder, and a serious permanent impairment or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 6-112, and from the defendant’s Court Book (“DCB”) pages 9-14 and 20-30: Exhibit A;
•
The defendant tendered its Court Book, pages 1-70, 85-97 and 105: Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function” and under subsection (37)(c) which requires the plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides, in relation to a physical injury, that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(d) provides, in relation to a psychiatric injury, that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe”.
(g)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(h)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(i)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(j)
Subsection (38)(b) 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. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.
(k)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(c) and (d). I have applied the principles set forth therein in reaching my conclusions in this application.
(l)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11.
[2] Barwon Spinners, at paragraph 33.
[3] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 12 June 1973. He is now thirty-seven years of age. He commenced living in a domestic relationship in about 1991. A child was born of that relationship. The relationship ended after about eighteen months.
10 The plaintiff commenced living in a domestic relationship with his current domestic partner, Nicole, in about 1994. They separated in about September 2007. They have recently attempted reconciliation. They have two children who are about seven and six years of age respectively.
11 The plaintiff had a disrupted early life. His mother died when he was eleven years of age. He was put into foster care for some time before returning to the care of his father. His father’s business and working interests were unsuccessful which must have placed financial strain on the plaintiff’s family. He left school at the end of the Year 10 level. He was not a good student. He was disinterested in schooling.
12 The plaintiff’s attempts at obtaining and completing an apprenticeship were unsuccessful. His early work history seems to have been that of an itinerant worker. He first obtained stable employment in about 2002. It was with the defendant. It was a job which he enjoyed. He described it as the best job he had ever had.
13 In about February 2005, the plaintiff suffered an injury to an ankle. In March 2005, he suffered a straining injury to his lower back. Neither injury caused him any long-term symptoms, nor did they interfere with his capacity to undertake the arduous manual activities which were a feature of his daily work with the defendant.
The Incident
14 On 16 August 2005, the plaintiff entered an aerosol cage in which aerosol products were stored for safety reasons. The aerosol cage was about 7 to 8 metres long and 4 to 5 metres wide. It had racking down either side on which cans of aerosol products were stored.
15 The plaintiff entered the aerosol cage. As he was exiting the aerosol cage, his overalls became caught on a piece of wire sticking out from the gate of the cage. He lost his balance and fell over an hydraulic power mover known as a tugger.
16 At first the plaintiff was aware of pain in his right shoulder, and later pain in his neck and right ankle. He reported the occurrence of the incident. He was taken to the defendant’s sick bay. His domestic partner collected him and took him to see a medical practitioner.
The Plaintiff’s Medical Treatment
17 The plaintiff first saw Dr Argo, general practitioner, on 16 August 2005. Dr Argo recorded that the plaintiff was complaining of pain in his right shoulder, in his lower back with a radiation of pain in both legs, and in his right ankle.
18 Dr Argo referred the plaintiff to have an x-ray of his thoracolumbar spine and an ultrasound of his right shoulder. He was prescribed Voltaren and Panadeine Forte for pain relief. He was provided with a certificate to be off work for three days.
19 The plaintiff continued to complain of pain which led Dr Argo to refer him to have a CT scan of his neck, lower back and right ankle. He concluded that the CT scan demonstrated disc prolapses in the plaintiff’s neck and lower back. He referred the plaintiff to have physiotherapy; however, when he reviewed him on 26 August 2005, the pain which the plaintiff complained about had not improved. He changed the plaintiff’s medication by prescribing Tramal and ceasing his use of Voltaren.
20 Dr Argo then referred the plaintiff to Mr Bittar, neurosurgeon. The plaintiff first saw Mr Bittar on 22 September 2005. The main complaint which the plaintiff made to Mr Bittar was of pain in his neck and lower back with intermittent bilateral sciatica radiating to the back of both knees with some numbness over his thighs.
21 Mr Bittar referred the plaintiff to have an MRI scan. He interpreted the results of the MRI scan as demonstrating a shallow central posterior disc protrusion at L4-5 without any obvious nerve root compression. He considered that the MRI scan of the plaintiff’s neck showed no abnormality.
22 Mr Bittar concluded that the plaintiff had most likely suffered a soft tissue injury to his lower back; however, he did not exclude the possibility that the plaintiff’s lower back pain was discogenic.[4]
[4] PCB 68
23 By 10 November 2005, Dr Argo noted that the plaintiff was suffering from a significant mood disturbance with poor appetite and insomnia. He concluded that the plaintiff was suffering from depression and anxiety. He prescribed him Zoloft for depression, Diazepam for anxiety and Temazepam to help him sleep.
24 Dr Argo noted that part of the reason why the plaintiff had become depressed was because of difficulties he was having with the pain he was experiencing; difficulty in returning to work; difficulty with his relationship with his domestic partner; and the financial strain he was experiencing in not being able to work as he was able to prior to suffering injury.
25 Dr Argo referred the plaintiff to Ms Mercuri, psychologist. The plaintiff first saw her on 29 November 2005. She treated the plaintiff until late 2006. She was of the opinion that the plaintiff was suffering from a depressive disorder which was triggered by the incident and injuries which resulted from it.[5]
[5] PCB 72-79
26 By 4 January 2006, Dr Argo noted that the plaintiff was suffering from severe stress, frustration and anger. It led the plaintiff to stop all of the treatment he was having, including physiotherapy. Dr Argo substituted Aropax for Zoloft because of the side-effects the plaintiff was experiencing when he ingested Zoloft. At that stage, Dr Argo was of the opinion that the plaintiff was unfit for work.
27 Dr Argo noted that the plaintiff returned to work in February 2006 on modified duties, performing 15 hours per week. The plaintiff’s shoulder problems were giving him a lot of trouble at that stage. Dr Argo referred him to a radiologist who undertook an x-ray/ultrasound of his shoulder. He was given an injection which gave him some temporary relief. The plaintiff was taking Brufen at that stage for his shoulder injury. He stopped taking it because of its side-effects.
28 Dr Argo referred the plaintiff to undertake a multidisciplinary program on 13 June 2006 with an organisation known as Recovré. He completed the program by September 2006 and reported to Dr Argo that the pain he was experiencing had improved since undertaking that course.
29 Between September 2006 and 22 December 2008, the plaintiff continued to see Dr Argo, and other medical practitioners at his practice, for treatment of depression. The plaintiff was ingesting so much medication at that time that Dr Le, general practitioner, suggested he attend an organisation known as Turning Point Alcohol and Drug Centre, for treatment for his level of pharmaceutical drug use.
30 Dr Le prescribed the plaintiff Avanza during 2006 to treat his depression and to help him sleep. In November 2006, the plaintiff was prescribed Efexor XR to treat his depression. The dosage of Effexor was increased, and despite ongoing psychological therapy, Dr Argo noted that the plaintiff’s sleep disturbance, poor memory and problems with concentration failed to improve.
31 The plaintiff remained on modified duties until about November 2006, when he went off work until March 2007. The plaintiff said that he was in receipt of a letter from the defendant which informed him that unless he was able to work full-time, his job was at risk. The plaintiff returned to work in March 2007. He was issued with a certificate to return to full-time work, including forklift driving, but with restrictions relevant to lifting, repeated bending, twisting and activities over shoulder height. However, his employment was terminated in July 2007.
32 It would appear that some time between November 2006 and March 2007 that the plaintiff was referred by Dr Argo to Dr Ibrahim, psychiatrist, for treatment. Dr Argo was under the impression that the plaintiff did not attend that appointment. However, the plaintiff said that he did attend Dr Ibrahim on one occasion. He attended on a second occasion when Dr Ibrahim told him that he did not feel that the plaintiff needed to see him.[6]
[6] Transcript 40
33 Although the plaintiff’s depression appears to have dominated his treatment in the latter part of 2006, and going into the early part of 2007, he was nonetheless continuing to have pain in his lower back. On 6 July 2007, Dr Argo noted that the pain which the plaintiff experienced in his lower back had not worsened through 2007. He also noted that the plaintiff was using Paracetamol and Panadeine Forte for pain relief. At that stage Dr Argo noted that the plaintiff’s levels of psycho-social stress were high and his mood was low, and that he continued to take Diazepam for anxiety, and Temazepam for sleep.
34 The plaintiff saw Dr Argo, and other medical practitioners at his clinic, on three occasions during 2008. Dr Argo noted that the plaintiff still had ongoing pain and symptoms of depression and anxiety for which he was prescribed Panadeine Forte, Temazepam and Diazepam. He was also prescribed a different anti-depressant known as Lexapro.
35 The plaintiff was last seen by Dr Rohatgi,[7] general practitioner, on 22 December 2008. At that stage the plaintiff was not taking an anti-depressant. He was advised by Dr Rohatgi to take anti-depressant medication, and I infer that he was given that advice because his symptoms of depression required treatment.
[7] A medical practitioner in the same practice as Dr Argo
36 The plaintiff did not see a medical practitioner during 2009. The strong impression I obtained from the plaintiff’s evidence was that he suffered a significant downturn in his capacity to cope psychologically throughout 2009. He described his predicament as follows:
“Well, I was in the middle of trying to shift to Maryborough up to Redbank, trying to sort my life out. I was severely depressed for most of 2009, not doing a lot at all, living with my sister, brother, my dad, moving around from place to place. Like I said, I was just severely depressed, not doing nothing at all, not treating myself, not living.”[8]
[8] Transcript 41
37 The plaintiff intended to see a medical practitioner in Redbank, but it would appear that he did not do that. He preferred to see Dr Argo. He next saw Dr Argo on 7 January 2010 when Dr Argo noted that the plaintiff had ongoing depressive symptoms as well as insomnia and anxiety, and an additional symptom of occasional panic attacks. Dr Argo prescribed the plaintiff Pristiq to treat his depression. He also prescribed him Temazepam for insomnia and Diazepam for anxiety.
38 Dr Argo last saw the plaintiff on 24 August 2010. He was of the opinion that the plaintiff needed to see a psychiatrist to determine the best pharmacotherapy and regular use of psychological therapy to treat what Dr Argo considered to be a Chronic Adjustment Disorder with Depression and Anxiety. In addition to the medication he prescribed for depression, he also prescribed the plaintiff Panadeine Forte for pain relief.
39 The plaintiff said that he intends to see a medical practitioner close to where he presently lives in Redbank. He has not yet done so. His preference at present is to continue seeing Dr Argo.
The Other Medical Evidence
40 Mr Blanden opened the plaintiff’s case on the basis that the consequences of the psychiatric injury met the statutory test for both pain and suffering and loss of earning capacity, and that the consequences of the lower back injury did as well. However, he believed the consequences of the psychiatric injury were much clearer and stronger in terms of satisfying the statutory test.
41 Based upon this opening, I propose to firstly consider the case put by the plaintiff, that the consequences of the psychiatric injury meet the statutory test. If the plaintiff is successful in proving that case, then it is unnecessary for me to consider whether the consequences of a lower back injury also meet the statutory test, because leave granted in relation to the consequences of one of those injuries will permit the plaintiff to bring a proceeding at common law for all of the injuries which he suffered as a result of the incident.
42 The first psychiatrist to assess the plaintiff was Dr Stern. He examined the plaintiff on 8 December 2005,[9] 19 February 2007,[10] and lastly on 26 July 2007.[11] On each occasion he concluded that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressive Mood causally connected to the incident. He was of the opinion that the plaintiff was fit for his pre-injury work from a psychiatric perspective alone.[12]
[9] DCB 57-58
[10] DCB 53-55
[11] DCB 48-50
[12] DCB 50
43 The next psychiatrist to assess the plaintiff was Dr Jackson. He examined the plaintiff on 22 February 2008,[13] and again on 15 July 2010.[14]
[13] DCB 20-30
[14] DCB 9-14
44 At the conclusion of the first examination, Dr Jackson was of the opinion that the plaintiff was suffering from a very obvious depression with mild anxiety associated with the chronic pain he was suffering, and the loss of his highly valued job. He noted that the plaintiff’s reactive depressive symptoms had markedly increased in the weeks before he examined the plaintiff related to the forced sale of his family home.
45 Dr Jackson was of the opinion that the plaintiff’s treatment by prescription of anti-depressant medication was reasonable and appropriate. He considered that the plaintiff needed a psychiatric review to change or increase the dosage of his anti-depressants. Furthermore, he considered that the plaintiff needed to be reviewed by a psychiatrist as part of long-term pain management.
46 Mr Blanden emphasised Dr Jackson’s evaluation of psychiatric impairment undertaken pursuant to the AMA Guides, 4th Edition. He submitted that what was of particular importance in the context of the plaintiff’s evidence was that Dr Jackson considered that part of the evaluation included a reference to the plaintiff’s “thinking” which warranted the description of being pessimistic, hopeless themes with obsessional depressive brooding but with no formal thought disorder, and “judgment” which warranted the description of greatly coloured by pessimism and hopelessness.
47 At the conclusion of his last examination, Dr Jackson was of the following opinion:
“In the two years since my prior examination, Mr Sacco has not been engaged in any real psychiatric or psychological treatment and basically has ‘given up’. His use of antidepressant prescribed by a GP with whom he has little contact, does not amount to appropriate or active treatment.
I do recommend extended psychiatric treatment in the hands of a GP with whom he has regular contact with possible input from a psychiatrist. However, this has apparently not eventuated in the past and there is little prospect of Mr Sacco accepting, let alone appropriately engaging in, such treatment.
From a strictly psychiatric point of view, there is no clear bar to any form of employment including the types of employment mentioned in the Vocational Assessment print out, I repeat, there is little prospect of Mr Sacco engaging in such rehabilitation and return to work endeavours.”
48 Dr Jackson’s summary of his conclusions was:
“There has been little change in Mr Sacco since my prior examination of 11.03.08. However, he has become more entrenched in his pains and disabilities as he sees it and associated chronic depression.
He has not been involved in any active psychiatric treatment or, apparently, any other rehabilitation or return to work endeavours. There is little prospect of change for the foreseeable future.”
49 Both Mr Blanden and Ms Manova relied upon the opinion of Dr Jackson, submitting that it supported the case which each of them was putting.
50 The only interpretation I can give to the opinions of Dr Jackson are threefold. Firstly, there has been little change in the plaintiff’s psychiatric symptoms since he last examined the plaintiff. Secondly, the plaintiff requires active medical treatment by pharmacotherapy and psychiatric/psychological treatment. Thirdly, the plaintiff has essentially given in to his injuries, and in particular, his psychiatric injury which is unlikely to change given the fact that the plaintiff has not had the sort of treatment which Dr Jackson considered would be likely to benefit him.
51 Ms Manova submitted that the paragraph beginning “From a strictly psychiatric point of view” demonstrated that Dr Jackson was of the opinion that the plaintiff was capable of work despite his psychiatric injury. However, Dr Jackson did not disconnect the plaintiff’s poor prospects of engaging in rehabilitation and return to work endeavours as not having been produced by his psychiatric injury in the first place.
52 It seems to me that the plaintiff was working in a job which he enjoyed, and as he described it, it was the best job he had ever had. According to the schedule produced by the plaintiff for the year ending 30 June 2005, he earned $55,843.00 gross, which is a handsome income for someone with little education and no trade or other qualifications.
53 It seems to me that subsequent to suffering injury, the plaintiff’s life began to fall apart. He felt ostracised in his job because he had suffered injury. He felt that the light work he was given was demeaning. He felt that he was being set up by the defendant with a view to being dismissed from his employment. His relationship with his partner was not going well and eventually broke down, although in recent days they have attempted reconciliation. His receipt of WorkCover weekly payments was insufficient for his financial survival. He was forced to sell his home.
54 All of the foregoing did not occur coincidentally, but subsequent to the plaintiff suffering injury. It seems to me that the plaintiff giving up, as Dr Jackson would have it, is directly related to the consequences of the psychiatric injury. This leads me to the only conclusion I think is open when a fair assessment and interpretation is made of Dr Jackson’s opinion. That is, that the plaintiff suffered a psychiatric injury with a number of consequences, including being overwhelmed to the point where he gave up and resigned himself to having to deal with the psychiatric symptoms that he says plague him daily.
55 The last psychiatrist to examine the plaintiff was Dr Paoletti. He examined the plaintiff on 28 October 2009. He was of the opinion that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that the plaintiff had a mental state of such gravity that a renewed attempt at psychiatric treatment was warranted.
56 Dr Paoletti agreed with the proposition that the plaintiff had resigned himself to his predicament. He referred to the plaintiff being demoralised, which he associated with his Adjustment Disorder and psychosocial issues, which were presenting the plaintiff with additional barriers to rehabilitation and a return to work.
57 However, based upon his diagnosis, Dr Paoletti was of the opinion that the plaintiff had no immediate work capacity, but after further treatment he should be re-introduced into active work-seeking and into a rehabilitation program. Ultimately, he was of the opinion that the plaintiff’s prognosis was guarded, and whether it remained so depended upon the plaintiff engaging in a successful rehabilitation plan, and the plaintiff being brought to a point where he could return to suitable work.
Serious Injury
58 Ms Manova conceded that the plaintiff’s psychiatric injury amounted to a compensable injury. However, she submitted that I should not be satisfied that the impairment caused by the psychiatric injury was permanent, nor that the consequences of the impairment could meet the statutory test.
59 What is clear to me from the medical evidence is that none of the psychiatrists who have examined the plaintiff have expressed an opinion that even with optimum psychiatric treatment, optimum pharmacotherapy, rehabilitation and return to suitable employment, that the consequences of the plaintiff’s psychiatric injury will evaporate altogether. I think the strong inference to be drawn from all of the relevant evidence is that the consequences of the psychiatric injury are permanent.
60 I am not persuaded that there is any basis for treating the consequences of the psychiatric injury as being one component of the presentation of the plaintiff, and the so-called psychosocial problems experienced by the plaintiff as being entirely coincidental, and therefore, requiring me to undertake so- called unravelling or disentangling.
61 It would appear that the plaintiff was experiencing some problems in his relationship with his domestic partner. Notwithstanding the presence of those problems, he was able to work in an arduous job without complaint or incident. There was nothing in the evidence to suggest that the psycho-social problems were consistent with a psychiatric condition, and hence the reason why I think those problems were described as psycho-social as opposed to a psychiatric condition.
62 It is very clear to me that there is a strong theme throughout the medical evidence that the plaintiff’s life began to fall apart after the incident and directly due to the injuries he suffered as a result of it. It was in the setting of his difficulty in being unable to work in an unrestricted manner, and the threat of losing his job that his psychiatric injury appears to have spiralled out of control, and it certainly appears to have been the case during the latter part of 2005, through 2006 and 2007.
63 Despite the break in his treatment, what is also very clear to me is that the plaintiff had not recovered to any material degree by the time he next saw Dr Argo on 7 January 2010. What is abundantly evident is that he was still very ill and required the prescription of significant medication in the form of Pristiq, Temazepam and Diazepam to try to bring his psychiatric symptoms under some measure of control.
64 The opinions of Dr Jackson and Dr Paoletti are both pessimistic and contain only a small measure of optimism about the plaintiff’s future and whether he will continue to suffer from the consequences of his psychiatric injury to the same degree as in the past.
65 The pessimism is based upon the fact that the plaintiff has resigned himself to his psychiatric injury. The optimism is based on the plaintiff being able to take positive steps to have some measure of psychiatric treatment, consideration of his medication requirements by a psychiatrist, and an attempt to return to work. However, those opinions are based in something of a vacuum and without regard to the fact that the plaintiff had already been through that regime earlier and in 2006.
66 The very course advocated by Dr Jackson and Dr Paoletti was undertaken by Dr Argo and his colleagues in 2006. The plaintiff was referred to Recovré to undergo a multidisciplinary program. His medication was the subject of review in September 2006 by Dr Vu, and he was referred to Turning Point Alcohol and Drug Centre to look at his use of medication. Unfortunately for the plaintiff, it did not bear out the results which his treating medical practitioners no doubt hoped for.
67 In addition, the plaintiff did not resign himself to the consequences of his psychiatric injury until some time after he was dismissed from his employment in July 2007. He had made every effort to retrain in his employment, even to the extent of obtaining a certification to work full-time hours with restrictions. This was not sufficient for the defendant’s requirements because it subsequently terminated his employment. I accept the plaintiff’s evidence that the certification he obtained was a serious attempt on his part to avoid his employment being terminated, and not necessarily indicative of his capacity to work.
68 The plaintiff swore two affidavits, on 23 March 2009 and 15 November 2010.[15] In his first affidavit, he described being affected by his physical injuries to a significant extent. He also described being stressed very easily; suffering tension headaches which become migraine-like, resulting in him having to lie down in a darkened room for hours at a time; being unable to sleep satisfactorily and never waking up feeling refreshed, and not having a positive attitude.
[15] PCB 6-23
69 In his second affidavit, he described essentially breaking down in 2009 to the extent that he did not want to have any medical treatment. At that stage he was separated from his domestic partner. He was living at his sister’s home. His sister and his father were attempting to have him see a medical practitioner for treatment. He was unable to sleep properly. His mind was racing. His memory and concentration were poor. He was easily confused. He developed a snappiness in his reaction to people, including his sister and his father. He began experiencing panic attacks and would suffer stress and would become frightened. He would shake as a result of suffering panic attacks, and would have to sit until the shaking ceased. His weight dropped because of his disinterest in food.
70 I accept the plaintiff’s evidence that he was affected to the degree just described, and continues to be affected to that degree.
71 Ms Manova cross-examined the plaintiff regarding his attempts to find alternative employment since the time his employment with the defendant was terminated. The plaintiff has not made any attempt to undertake rehabilitation, retraining or find alternative employment.
72 Ms Manova submitted that subsection (38)(g) was a barrier to the plaintiff succeeding in proving loss of earning capacity because of his failure to undertake rehabilitation, retraining or find alternative employment. I do not accept that submission. What the submission fails to address is the fact that after the incident occurred, the plaintiff undertook medical treatment for the purpose of his physical rehabilitation, and returned to work until a point was reached by the defendant that it would not or could not tolerate employing the plaintiff on duties which were short of full-time and unrestricted duties.
73 I accept the plaintiff’s evidence in whole. I found him to be a straightforward, honest and utterly believable witness. I saw no embellishment in any of his evidence. Rather, his evidence was at times something of an understatement of the degree of his problems when compared with the report of Dr Argo, which describes the plaintiff going through a harrowing time resulting from the onset of his psychiatric injury.[16]
[16] PCB 62-66
74 I find that the plaintiff has suffered a major psychiatric injury based upon the opinions of Dr Argo, Dr Jackson and Dr Paoletti, with the major consequences described by the plaintiff in both his affidavits and in his oral evidence.
75 Subsection (38)(d) emphasises that there is a distinction between what the legislature intended by use of the word “serious” in connection with the consequences of physical injury and the word “severe” in connection with the consequences of psychiatric injury.
76 The word “severe” used in the definition relevant to this application is a stronger word than “serious”; however, in making that observation in Mobilio v Balliotis,[17] neither Winneke P nor Brooking JA adopted a particular adjective to mark the distinction.
[17] [1998] 3 VR 833 per Winneke P at 834-835 and Brooking JA at 846
77 The conclusion I have reached is that the plaintiff suffered a psychiatric injury. I accept the opinion of Dr Paoletti that it should be described as a Chronic Adjustment Disorder with Mixed Anxiety and Depressive Mood. I find that the pain and suffering consequences resulting from the psychiatric injury are permanent. Lastly, I find that the pain and suffering consequences meet the statutory test of being more than serious to the extent of being severe.
78 The latter conclusion, in my opinion, is clearly open on the evidence. Firstly, it is consistent with the evidence of the plaintiff. Secondly, it is consistent with the evidence of the medical practitioners. Thirdly, I find that the plaintiff is in a parlous psychiatric state requiring significant medical treatment, and probably in need of more expert psychiatric/psychological treatment.
79 Furthermore, I find that the plaintiff has no realistic capacity to work at present, and on the balance of probabilities, for the foreseeable future. I think the fact that the plaintiff made significant attempts to retrain in his employment in the setting of a psychiatric injury which was causing him a downward spiral is to his great credit. By the time he reached a stage where he was terminated, he had gone through a harrowing year in 2006, going into 2008, and I accept his evidence that 2009 was something of a lost year to him on his account, and that when he returned to treatment with Dr Argo in 2010, he was in a very parlous state indeed.
80 It is clear that Dr Paoletti considered that the plaintiff has no present working capacity, and was very pessimistic of the plaintiff’s prospects of reviving a capacity to work unless he was capable of taking some positive steps in that regard, yet recognising that the plaintiff had resigned himself to his psychiatric injury which, I find, had overtaken the plaintiff.
81 I find that the loss of earning capacity consequences resulting from the psychiatric injury are permanent. I find that the loss of earning capacity consequences meet the statutory test of being more than serious to the extent of being severe.
82 Lastly, both in terms of pain and suffering and loss of earning capacity, I find that the plaintiff’s claim meets the statutory test, and I have reached that conclusion after having made the comparison which I am required to make.
83 For the reasons which I have made plain above, it is unnecessary for me to consider the plaintiff’s claim with respect to his lower back injury.
Conclusion
84 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering a loss of earning capacity arising out of his employment with the defendant.
85 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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