Selimovski v Victorian WorkCover Authority

[2021] VCC 981

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01835

YSEN SELIMOVSKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2021
DATE OF JUDGMENT:	18 March 2021
CASE MAY BE CITED AS:	Selimovski v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 981

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the left index finger – psychiatric injury – pain and suffering conceded – loss of earning capacity – suitable employment

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170

Judgment:                Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Mr L Allan	Zaparas Lawyers
For the Defendant	Mr G Worth	Minter Ellison Lawyers

HER HONOUR:

Preliminary

1Mr Selimovski is a 62 year-old man who suffered a laceration to his left index finger on 1 August 2017 whilst using a table saw during the course of his employment as a woodwork teacher at Fountain Gate Secondary College.  As a result of this incident, Mr Selimovski required surgery to his finger.  For a period of approximately two years, Mr Selimovski returned to work at another school but he has not worked at all since November 2019.  Mr Selimovski claims to suffer permanent impairment from this left hand injury, as well as a consequential psychiatric condition.

2In order for Mr Selimovski to be entitled to claim common law damages, the impairment to his left hand must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Mr Selimovski must satisfy me that he suffers a psychiatric disease or disorder which meets the definition of “serious injury” contained in paragraph (c) of the same section of the Act.

3At the commencement of the hearing, the defendant conceded that Mr Selimovski suffers serious pain and suffering consequences in respect of his left hand impairment.  However, the defendant denied that this impairment resulted in serious pecuniary consequences.  In respect of Mr Selimovski’s psychiatric impairment, the defendant alleged that Mr Selimovski failed to mitigate his loss when he unreasonably cancelled proposed surgery to amputate his injured finger in November 2019.  It submitted that accordingly, Mr Selimovski’s subsequent psychiatric deterioration was not casually related to his work injury.  In the alternative, the defendant submitted that Mr Selimovski’s psychiatric impairment was not permanent or, if it was, did not satisfy the statutory threshold for pain and suffering, or pecuniary loss.

4Mr Selimovski was called to give evidence and was cross-examined.  Also in evidence was an affidavit from his wife, medical reports, clinical records and documents relating to the proposed surgery to amputate his finger.  I have read these tendered documents, together with the transcript of the proceeding.  I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.

5For the reasons that follow, I am satisfied that Mr Selimovski did not act unreasonably when he cancelled the proposed surgery, and that the work injury is still a cause of Mr Selimovski’s psychiatric impairment.  Further, I am satisfied that Mr Selimovski’s psychiatric impairment has caused him to suffer a permanent loss of earning capacity of at least 40 per cent, and that he should be granted leave to commence common law proceedings for the injuries he suffered in this work accident.  In view of this finding, it is not necessary for me to decide whether his left hand impairment also causes him serious pecuniary loss consequences.

Mr Selimovski’s life before the work accident

6Mr Selimovski was born in Yugoslavia in January 1959 and he is currently 62 years of age.  He is married and has two sons, aged 10 and 6.

7In 1963, Mr Selimovski came to Australia.  He completed his schooling and then undertook a Bachelor of Arts at RMIT and subsequently, a Diploma in Education (Arts and Craft) at Melbourne University.  He then commenced working as a teacher and worked in state secondary schools including Fitzroy High, Yarram Secondary and South Gippsland Secondary.  Mr Selimovski said that he predominantly taught woodwork, with a small amount of art lessons.

8In 2004, Mr Selimovski commenced employment at Fountain Gate Secondary College.  He was employed in a full-time role where he taught wood technology classes.

9Mr Selimovski said that prior to suffering his left hand injury, he enjoyed playing golf, working on cabinetry in his workshop, and restoring an old car.

Mr Selimovski’s work accident and claimed consequences

10Mr Selimovski suffered a laceration across his left index finger whilst using a table saw to cut timber for later use in class.  Mr Selimovski said that the cut was from the middle finger side and went about three-quarters of the way through, with a depth of 3.5 millimetres.  Mr Selimovski was subsequently taken by ambulance to Dandenong Hospital, where he was diagnosed as having suffered a deep laceration to his finger, and arrangements were made for surgical repair of the injured tendons in his hand on 2 August 2017.  Mr Selimovski said that he kept his arm in a brace for approximately six weeks following the surgery.

11In September 2017, Mr Selimovski’s general practitioner, Dr Rohana Welikumbura, referred Mr Selimovski to psychologist, Dr Moses Adepoju.  In a report dated 6 April 2018, Dr Adepoju stated that Mr Selimovski was highly traumatised, depressed, and was worried about the usefulness of his finger and his capacity to return to work.  Mr Selimovski said he has continued to consult Dr Adepoju on a regular basis since that time.

12In September 2017,Mr Selimovski had a pin surgically removed from his finger at Dandenong Hospital. Subsequently, he underwent hand therapy with hand therapist, Mr Nick Criticos, initially a couple of times a week, then weekly, and gradually less often.

13Mr Selimovski said that he was absent from work for several months after the work accident.  He then sought an internal transfer and commenced teaching woodwork classes on a full-time basis at Emerald Secondary College (“Emerald”) from Term 1, 2018.   Mr Selimovski said that tasks were made harder and had to be modified during his time at Emerald as he continued to experience ongoing pain, which was exacerbated if his hand was bumped.  Mr Selimovski said that his left hand was also less dexterous, which made it harder to perform tasks.  Mr Selimovski stated he could not carry heavy things with his left hand.  In addition, Mr Selimovski said that he was sleeping very poorly, and he found it hard to function during the day at school, and then felt at risk of falling asleep when driving home.

14In cross-examination, Mr Selimovski said that he could recall falling asleep on the side of the road on his way home and considered himself lucky not to have had an accident.

15In April 2018, Mr Selimovski attended Monash Health’s outpatient clinic and made complaints consistent with neuropathic pain in his finger.  He was subsequently referred to Monash Health Kingston Pain Clinic and in October 2018, he was seen by pain specialist, Dr Olivia Ong.  In a letter dated 11 October 2018, Dr Ong noted that, at the time of this attendance, Mr Selimovski reported constant but fluctuating pain and stiffness in his left index finger.  Dr Ong also noted that prolonged use of Mr Selimovski’s left index finger worsened his pain and, at the time, he was taking Panadol to reduce his pain and make it more manageable.  It was also noted that Mr Selimovski was having hand therapy on a fortnightly basis.

16Dr Ong noted that, due to Mr Selimovski’s ongoing pain, he had difficulties with daily tasks, such as using a fork, and that he had a limited physical endurance in respect of the use of his left index finger due to pain.  However, Dr Ong noted that Mr Selimovski was independent with lawn mowing, gardening, laundering, vacuuming, and was able to drive his automatic car to work.  Dr Ong recommended that Mr Selimovski continue with hand therapy and recommended that he see a pain physiotherapist at a facility closer to his home.

17Mr Selimovski said that he could recall the suggestion that he see a pain specialist closer to his home but, after speaking to someone at a closer clinic, Mr Selimovski understood that he was not likely to benefit from it as he was already seeing a hand therapist and psychologist.

18In late 2018, Mr Selimovski said he began to think about having his finger amputated in the hope that it would help him deal with his ongoing pain.  Mr Selimovski said it took him some time to build up the courage to have such surgery.

19In October 2019, Dr Welikumbura referred Mr Selimovski to orthopaedic surgeon, Mr George Pratt, to advise on the proposed amputation of Mr Selimovski’s left index finger.  Mr Selimovski recalled meeting Mr Pratt and several other doctors at Monash Medical Centre.  Mr Selimovski said that, at the end of the consultation, it was recommended that he proceed to have his finger amputated, and he signed a consent form for this.  Following the appointment, a date for surgery was scheduled for 12 November 2019.

20However, on 7 November 2019, Mr Selimovski informed Monash Health that he did not wish to proceed with the surgery, as he had not received approval from WorkCover for the procedure.  Mr Selimovski explained that soon after he cancelled the surgery, his mental health significantly deteriorated.

21On 21 November 2019, Mr Welikumbura referred Mr Selimovski to psychiatrist, Dr Dulip Dharmage, in relation to depression, insomnia and ruminations regarding his pain and impaired function in his left index finger.  At the time of the referral, Dr Welikumbura noted that Mr Selimovski had not proceeded with the proposed amputation of his finger as it was to be funded by Medicare and not WorkCover.

22Mr Selimovski first saw Dr Dharmage in January 2020 and has continued to consult him regularly since.  In a letter dated 9 January 2020, Dr Dharmage noted the incident in which Mr Selimovski had injured his finger in August 2017, and that he had been suffering ongoing pain and limitation of movement in his finger since that time.  Dr Dharmage obtained a history from Mr Selimovski regarding his contemplation of the finger amputation.  Dr Dharmage determined that the failure of the statutory insurer to provide funding in respect of the surgery, and Mr Selimovski consequently withdrawing from the surgery, led to a deterioration in his mental state.

23Dr Dharmage performed a mental state assessment of Mr Selimovski and said that his symptoms were consistent with a diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder.  At the time, Dr Dharmage prescribed Mr Selimovski Effexor medication as well as Diazepam.

24In a further report dated 27 February 2020, Dr Dharmage noted that despite increasing Mr Selimovski’s Effexor medication over the previous month, Mr Selimovski still reported very low mood associated with heightened anxiety.   He noted that Mr Selimovski found it difficult to sleep and was only sleeping for a few hours at night.  It was also noted that Mr Selimovski reported his concentration was affected, he was forgetful, had low energy and lacked motivation to attend to day to day tasks, and felt worthless with some fleeting suicidal ideation.

25On 5 October 2020, Dr Dharmage reported that he was continuing to treat Mr Selimovski who was “always anxious and agitated”.  Dr Dharmage noted that Mr Selimovski found it difficult to focus on tasks, sometimes got confused about what to do, and was unable to prioritise tasks.  Dr Dharmage recommended that Mr Selimovski needed more psychological support to overcome his mental health issues.

26Mr Selimovski said that he continues to see Dr Welikumbura monthly.  Since November 2019, Dr Welikumbura has provided Mr Selimovski with certificates of capacity, which have stated that he has no capacity for employment.  I note on Mr Selimovski’s most recent certificate of capacity, the clinical diagnosis refers to him suffering anxiety/depression and a left index finger injury which resulted in bone and structural damage and neuropathic pain.

27Mr Selimovski said that he continues to see Mr Criticos every six weeks or so.  In a report dated 15 February 2021, Mr Criticos stated that he has worked with Mr Selimovski to encourage his self-management, including with a home exercise program.  Further, Mr Criticos noted amputating Mr Selimovski’s finger remained an option due to his high level of pain and hypersensitivity.  However, Mr Criticos considered Mr Selimovski would need to be in a “stable position psychologically” before being able to proceed with the amputation.  Mr Criticos was of the opinion that, as a consequence of Mr Selimovski’s left finger injury, he was limited with pushing, pulling and lifting and was quite limited in respect of repetitive pushing, pulling or lifting; and gripping, holding or carrying.

28Mr Criticos stated that although he had initially considered that Mr Selimovski was likely to return to his pre-injury role, Mr Selimovski’s mental wellbeing and health had declined, and his physical pain has not improved since that assessment.  Further, Mr Selimovski’s reports of very limited sleep and a sense of “haziness,” meant that Mr Criticos considered that it would not be safe for Mr Selimovski to work as a teacher.  At the time of Mr Criticos’ assessment he determined that Mr Selimovski would be unable to work in the foreseeable future, “until his mental health and pain management was further under control”.

29Mr Selimovski said that he also continues to see Dr Adepoju every three weeks or so, and  sees Dr Dharmage approximately once a month.  Mr Selimovski also said that he attends upon his general practitioner, Dr Fazel Musaddiq, when he requires a mental health plan review, to enable him to be entitled to further counselling sessions from Dr Adepoju.

30Mr Selimovski said that he currently takes the following medication:

·        Comfarol Forte (2-4 per day);

·        Prodeine Extra (approximately 5 or 6 times each week);

·        Panamax (approximately 6-8 per day);

·        Effexor (225 milligrams per day).

31In addition, Mr Selimovski said that he sometimes takes Temtabs when he has consecutive bad nights of sleep and feels that he needs a good night’s sleep.

32Mr Selimovski said that he is quite drowsy and woozy from his medications and he has difficulty concentrating and remembering things.

33Mr Selimovski said that he has throbbing pain in his left index finger which is present all the time.  He said that his pain worsens when he moves his finger or bumps it.  Mr Selimovski also said that his finger is worse in the cold weather.  Mr Selimovski complained of numbness in his finger and said that he feels like he has suffered loss of strength and muscle mass in his left arm because he does not use it as much as before.

34Mr Selimovski said that he is limited in what he can do around the house and that he tries to avoid activities where you need two hands.  Mr Selimovski said that he has not been able to return to activities that he previously enjoyed, such as “tinkering” with his car.  Mr Selimovski said it is too difficult to do one-handed.

35Mr Selimovski complained that he sleeps extremely poorly and that each night he only gets three to four hours’ sleep.  Mr Selimovski said that he feels drowsy and tired during the day and often has to nap to catch up on his sleep.

36Mr Selimovski said that he is extremely stressed and anxious and worries about his future.  He said that, despite Dr Dharmage increasing his dose of Effexor, he continues to feel “edgy”.  Mr Selimovski said that he frequently experiences panic attacks and does not like leaving his house unless he has to.

37Mr Selimovski said that since the time of the accident, he has frequent flashbacks regarding how his accident happened, as well as nightmares. 

38Mr Selimovski said that he has had thoughts of hurting himself, and often feels that he wants to “end it all,” by jumping in front of a truck.

39Mr Selimovski said that he considers that due to his physical condition and his mental state, he is unable to perform any work or be retrained for work.  Mr Selimovski said that whilst he was a teacher, he taught a small amount of art, but otherwise only taught woodwork.  He does not consider that his hand injury would enable him to teach either art or woodwork.  Further, in relation to academic teaching, Mr Selimovski considered that his skills were insufficient to teach in that area or to be a teacher’s aide.

40Mr Selimovski also stated that his computer skills are quite poor, and he does not consider them sufficient to function in a modern academic classroom.

41Mr Selimovski said that he drives an automatic car.  In doing so, he uses his right hand to operate the gearstick.  Mr Selimovski appreciates that this is not very safe, but he does so to avoid aggravating his left finger pain.  Mr Selimovski also said that his left finger and hand suffer increased pain if he holds the steering wheel for a prolonged period.  In addition, Mr Selimovski said that his drowsiness and lack of concentration is also a problem, and he therefore only drives short distances.  In cross-examination, Mr Selimovski said that, on a couple of occasions, he got lost while driving and was unable to get himself home.

42Mr Selimovski’s wife swore an affidavit on the date of the hearing in support of her husband’s application.  Mrs Selimovski stated that Mr Selimovski does not use his left hand for much and that her husband no longer vacuums or cooks, tasks he previously undertook prior to suffering his hand injury.  Mrs Selimovski said that Mr Selimovski tosses and turns in the bed at night and gets up very early in the morning.  Further, Mrs Selimovski stated that Mr Selimovski spends a lot of time during the day napping, and that on two or three days each week, he stays in his pyjamas and does not leave the house.  Mrs Selimovski also observed that Mr Selimovski does not seem to remember very well and that she often has to tell him things two or three times, for example to take out the rubbish bins or do small jobs in the kitchen.  Mrs Selimovski said that she helps her husband take his medication as she does not trust him to take the right amount.

Medico-legal evidence in respect of Mr Selimovski’s physical condition

43In August 2019 and October 2020, Mr Selimovski was examined by hand, plastic and reconstruction surgeon, Mr John Buntine.  In his first report dated 9 September 2019, Mr Buntine detailed the nature of the injury which Mr Selimovski suffered in the workplace accident and the treatment he had received for it.  Mr Buntine noted that Mr Selimovski was undertaking normal work duties as a woodwork teacher “despite the pain he experiences in his left index finger, which he does not use”.   Mr Buntine noted that, at the time, Mr Selimovski was taking Panamax during the day and Panadeine Forte or Comfarol Forte at night when troubled by pain, as well as antidepressant medication and Temazepam.

44Mr Buntine reported that Mr Selimovski was annoyed when he was working and knocked his finger, as that would result in increased pain.  Further, Mr Buntine noted that Mr Selimovski described specific difficulties testing carpentry joints by feel, because of the abnormal sensation in his left index finger.  Mr Buntine also noted that away from work, Mr Selimovski was no longer working on his old car, and that playing golf caused him pain in his finger.

45In his further report dated 12 November 2020, Mr Buntine noted that Mr Selimovski had reported worsening pain of his left hand and arm since his previous examination, and that he was not using his left index finger for any purpose.  Mr Buntine noted that after the cancellation of the proposed finger amputation, Mr Selimovski became upset and decided not to proceed with having his finger amputated at all.

46On examination, Mr Buntine noted impaired sensation on the ulnar side of Mr Selimovski’s index finger, together with stiffness and pain which Mr Buntine considered might be labelled a pain syndrome.  However, Mr Buntine considered that the full gamut of changes required for a diagnosis of Complex Regional Pain Syndrome were not present.

47Mr Buntine was of the opinion that the function of Mr Selimovski’s left hand was likely to improve if there was a complete amputation of his left index finger, but Mr Selimovski’s age and mental state “definitely contraindicate[d]” further surgery to his finger.  Mr Buntine considered Mr Selimovski’s eventual decision not to proceed with the finger amputation was reasonable.

48Mr Buntine believed that Mr Selimovski would be considerably restricted in his pre-injury duties as a woodwork teacher, but that he could make adjustments to allow him to undertake much of his work, including the instruction of students.  However, Mr Buntine accepted that for practical purposes it was unlikely Mr Selimovski would ever work again as a woodwork teacher, due to the severe abnormal condition of his left index finger and the way he deals with his physical abnormality.  Mr Buntine considered that further rehabilitation and training could theoretically assist Mr Selimovski to modify his work tasks, and that he could possibly move into some other areas of teaching. However, Mr Buntine observed that Mr Selimovski’s anxiety and depression made it unlikely, for practical purposes, that he would undertake ordinary paid work again. Mr Buntine stated, however, that would be a matter for a psychiatrist to comment on.

49In June 2020, Mr Selimovski was examined by orthopaedic surgeon, Dr Francis Ghan.  In a report dated 3 June 2020, Dr Ghan stated that on examination, it appeared that there were changes of reflex sympathetic dystrophy in Mr Selimovski’s left index finger.  Dr Ghan also noted that Mr Selimovski was still in a lot of pain and was experiencing frequent flashbacks to the injury.  Dr Ghan also noted that Mr Selimovski could only drive short distances.  Dr Ghan was of the opinion that Mr Selimovski was not fit to return to work in his pre-injury duties or hours at another worksite or with any other employer.

50In February 2021, Mr Selimovski was examined by occupational physician, Dr Dominic Yong.  In his report dated 2 February 2021, Dr Yong detailed Mr Selimovski’s history as well as his current symptoms and treatment.  Following an examination, Dr Yong was of the opinion that Mr Selimovski should avoid lifting more than 2 kilograms with his left hand, avoid repeated firm gripping and squeezing with his left hand, avoid repeated firm pushing and pulling tasks with his left hand, and initially work reduced hours.

51Dr Yong considered Mr Selimovski had an incapacity for work in respect of his pre-injury duties. However, Dr Yong was of the opinion that Mr Selimovski had the capacity to work as a private tutor or teacher with the assistance of a graduated return to work program, such that he could initially work half of the weekly working hours and build up to his pre-injury hours over a three to four-month period.  Further, Dr Yong believed that Mr Selimovski had the capacity to work as a driving instructor, with a similar restriction on hours as those stated for the role of a private tutor.

52Also in February 2021, Mr Selimovski was examined by plastic surgeon, Mr Damon Thomas. In his report dated 4 February 2021, he detailed Mr Selimovski’s history.  Mr Thomas considered that Mr Selimovski had suffered a left index finger laceration and secondary Chronic Regional Pain Syndrome, as well as secondary psychiatric issues surrounding the injury and its sequelae.

53Mr Thomas considered that Mr Selimovski’s prognosis was poor regarding his left index finger.  Mr Thomas noted that Mr Selimovski has no real use of his finger, with secondary problems from chronic pain and reduced function.  Mr Thomas also noted that Mr Selimovski had been quite profoundly affected from a psychological point of view.

54Mr Thomas was of the opinion that Mr Selimovski suffered a total incapacity with regard to his left hand, and that he was not able to undertake his previous role as a secondary school teacher due to his inability to use his left hand to do anything physical.  In respect of alternative jobs, Mr Thomas stated that, from a physical capacity, he did not consider that Mr Selimovski could work as a secondary school teacher in the technology field, due to his inability to use his left hand.  In particular, he would be unable to do tasks which are heavy, light or repetitive.  Mr Thomas also noted that it appeared to him that Mr Selimovski had been “profoundly affected” from a psychiatric perspective, and that Mr Selimovski felt that he could not undertake any employment due to his significant sleep issues and chronic insomnia.

Medico-legal evidence in respect of Mr Selimovski’s psychiatric condition

55In August 2019, Mr Selimovski was examined by psychiatrist, Dr Stephen Stern.  In his report dated 7 August 2019, Dr Stern detailed Mr Selimovski’s history and noted that, at the time of the examination, he reported being depressed by his pain and was sometimes tearful.  It was noted that Mr Selimovski stated he was apprehensive about bumping his finger, but was not anxious about using saws, and continued to work with the same equipment.  Dr Stern noted that Mr Selimovski had difficulty falling asleep, and woke because of pain, but was not having any nightmares.  It was noted Mr Selimovski was seeing a psychologist and was taking a small dose of antidepressant medication.

56Dr Stern diagnosed Mr Selimovski as suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. 

57In November 2020, Mr Selimovski was examined by psychiatrist, Dr Timothy Entwisle. In his report dated 24 November 2020, Dr Entwisle detailed Mr Selimovski’s background and the circumstances of the work accident.  Dr Entwisle noted that, Mr Selimovski’s mood was mildly depressed but not overly anxious.  Dr Entwisle reported that Mr Selimovski’s sleep was interrupted “on occasions by pain” and that his memory and concentration was intact.  Dr Entwisle diagnosed Mr Selimovski as suffering an Adjustment Disorder with Depressed and Anxious Mood.

58In this report, Dr Entwisle referred to the delay of the amputation surgery in November 2019 and noted that, as a result, Mr Selimovski’s psychiatric condition appeared to have “changed dramatically” and that his presentation appeared to have changed.

59Dr Entwisle believed Mr Selimovski was capable of working, as his symptoms were of mild severity.  Dr Entwisle considered that Mr Selimovski had the capacity for suitable duties from a psychiatric perspective.

60In December 2020, Mr Selimovski was examined by psychiatrist, Dr Leon Turnbull.  In his report dated 8 December 2020, Dr Turnbull detailed the impact the work accident and consequent left finger injury had upon him.  Dr Turnbull noted Mr Selimovski reported that, after “much thought”, he eventually settled on the idea of the amputation of his finger, but that when funding was either “not given or withdrawn,” this threw Mr Selimovski “off the deep end”. 

61Dr Turnbull noted that Mr Selimovski reported getting only three to four hours of sleep a night, and that he had become “really depressed”.

62Dr Turnbull stated that his observation of Mr Selimovski was that he was “psychologically slowed”, and that during the course of the examination Mr Selimovski “drifted off and found it difficult to remain on track”.  Dr Turnbull also noted Mr Selimovski reported that his pain was difficult to deal with, and that his sleep was “unrefreshing”. Further, Dr Turnbull recorded that Mr Selimovski reported suicidal thoughts and had, on multiple occasions, contemplated jumping in front of a truck.   Dr Turnbull stated that Mr Selimovski’s distinct lack of interest and enjoyment, the intensity of his depressed mood state, his tearfulness and suicidal thinking, as well as cognitive difficulties in terms of concentration, were all consistent with a diagnosis of major depressive disorder.

63Dr Turnbull stated that, given Mr Selimovski’s suicidal thinking, he believed psychiatric inpatient treatment was “on the cards” for Mr Selimovski.

64Dr Turnbull considered that Mr Selimovski’s prognosis was “mixed”.  Dr Turnbull stated that Mr Selimovski was initially motivated and worked in an alternative workplace, but he had now “fallen apart” and was not getting better despite “fairly intense treatment”.  Dr Turnbull said that he could not see a clear pathway towards psychiatric recovery.  Dr Turnbull was of the opinion that Mr Selimovski was completely incapacitated for any work from a psychiatric perspective.

65Dr Turnbull stated that using machinery was unsafe due to the risks of Mr Selimovski injuring himself, given his cognitive problems.  Dr Turnbull stated that, in his opinion, Mr Selimovski was not capable of working in any role “on a reliable and consistent basis”.

Mr Selimovski’s credibility

66Mr Selimovski answered questions in a slow and careful manner.  Mr Selimovski had difficulties answering questions such as those regarding the medication he was taking and was slow to even provide his home address (despite having lived there for six years).  My impression of Mr Selimovski was that he had genuine difficulties concentrating and had a poor memory.

67There was no direct attack on Mr Selimovski’s credibility.  However, the defendant cross-examined Mr Selimovski at length as to his decision to cancel the proposed finger amputation surgery.  Numerous documents were tendered relevant to this, including a letter from the statutory insurer, Gallagher Bassett, to Dr Welikumbura dated 29 October 2019, in which it stated it would assess the request for the proposed surgery and advise him of the outcome within 10 working days.  In addition, a letter tendered from Gallagher Bassett dated 21 February 2020 informed Mr Selimovski that if he intended to proceed with the surgery, he would need to provide a referral letter from his treating surgeon along with the item codes for the procedure.

68Further, in re-examination, a letter from Mr Selimovski to Gallagher Bassett dated 12 February 2020 was tendered. In this letter, Mr Selimovski expressed his concern as to what he considered was the insurer’s “total disregard” for his physical and mental wellbeing, and stated that not having the insurer’s approval for the proposed surgery before the scheduled date caused him to become severely depressed.

69I accept that Mr Selimovski was genuine in describing how difficult the decision regarding this proposed surgery was for him.  His evidence in respect of the cancellation of the surgery did not impact upon his credibility as a witness.

70Mr Selimovski was also cross-examined as to aspects of his clinical records.  Most of the time Mr Selimovski said that he could not recall what he reported to the doctors at different points in time.  Mr Selimovski said that he would not have used the words “refuse to work” to his general practitioner, and I accept his evidence on that.  I also accept his evidence that, despite reports by numerous doctors that he was coping in his return to work at Emerald, he did struggle with lack of sleep and modified his teaching style so as to minimise the use of his left hand.

71Overall, I have no hesitation in accepting Mr Selimovski’s evidence and considered him a witness of truth.  This bears significantly upon my assessment as to his capacity for suitable employment.

Mr Selimovski’s decision to cancel the finger amputation surgery and subsequent decision not to have his finger amputated

72I am satisfied that, as a consequence of confusion and miscommunication, Mr Selimovski cancelled the proposed surgery.  I consider his letter of 12 February 2020 demonstrated his level of anxiousness regarding this surgery.  I do not consider that Mr Selimovski was unreasonable in his actions regarding this surgery, nor that he has unreasonably failed to mitigate his loss by not presently seeking to have it performed.  Accordingly, I do not accept the defendant’s submission that the chain of causation has been broken by Mr Selimovski’s decision in respect of his decision not to proceed with this surgery.

Mr Selimovski’s claim for psychiatric impairment and its impact on his earning capacity

73I am satisfied that, as a consequence of the circumstances of the accident and the left hand injury suffered in it, Mr Selimovski developed a psychiatric condition, which worsened in late 2019 and early 2020. I  am satisfied that the work accident remains a cause of his psychiatric condition, which has been diagnosed by numerous doctors as being a Major Depression and Anxiety Disorder.

74The defendant relied upon Dr Turnbull’s suggestion that Mr Selimovski may benefit from inpatient medical treatment to support its submission that Mr Selimovski’s psychiatric impairment is not permanent.  However, I note that Dr Turnbull did not suggest that this possible treatment option would alter Mr Selimovski’s long-term prognosis.  I also note that Mr Selimovski has received extensive psychological treatment for several years and has consistently taken antidepressant medication. On the evidence, I am satisfied that his psychiatric impairment is permanent.

75Mr Selimovski bears the onus of satisfying me that, as at the date of hearing, as a consequence of his psychiatric impairment, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.  In making this assessment, I must consider what Mr Selimovski is capable of earning, whether in suitable employment or not.  It is impermissible for Mr Selimovski to combine the consequences of his left hand impairment with his psychiatric impairment, as both impairments must be considered separately.

76In undertaking this task, I must compare what Mr Selimovski is capable of earning in suitable employment, with his pre-injury earning capacity.  The parties agreed the figure that most fairly reflected Mr Selimovski’s pre-injury earning was $100,000 gross per annum or $1,923 gross per week.  Therefore, Mr Selimovski must satisfy me that, as a consequence of his psychiatric impairment, he has suffered a permanent loss of earning capacity, such that he is incapable of earning more than $1,153.84 gross per week, and that such a restriction on his earning capacity will be permanent.

77The defendant suggested that Mr Selimovski was capable of returning to his pre-injury duties, or alternatively working full-time as a private tutor or driving instructor.  In all such roles, Mr Selimovski would earn in excess of $1,153.84 and thus not satisfy the threshold.

78The certificates of capacity which Dr Welikumbura issues each month, state that Mr Selimovski has no capacity for employment.  However, these certificates refer to Mr Selimovski’s depression and anxiety, as well as his left finger injury.  As such, these certificates are of no assistance in my assessment of Mr Selimovski’s work capacity based only in respect of his psychiatric impairment.

79I consider a fair reading of Mr Criticos’ most recent report is that he considers Mr Selimovski’s incapacity for work arises from his mental health and pain levels, rather than the physical restrictions arising from his left hand impairment.  However, as Mr Criticos is a hand therapist, and not trained in psychology, I have also disregarded this opinion in my assessment of Mr Selimovski’s work capacity in respect of his psychiatric impairment.

80I consider Mr Selimovski gave convincing evidence as to why he cannot return to work or be retrained.  I accept that with limited sleep of only three to four  hours each night, it would be very difficult for Mr Selimovski to attend work on a reliable and consistent basis.  Further, my own observations of Mr Selimovski are such that I consider his apparent poor memory and concentration would make it very difficult for him to work in any of the jobs which the defendant suggested as suitable.

81My conclusions on this are consistent with the opinion of Dr Turnbull that Mr Selimovski’s psychiatric condition is such that he has no capacity for employment.

82I also note that Mr Selimovski’s wife gave evidence that her husband’s sleep is affected, and that he has poor concentration in respect of the performance of tasks she asks him to do at home.  This evidence is also supportive of my conclusions in respect of Mr Selimovski’s psychiatric impairment rendering him incapable of work.

83I note that although Dr Ghan, Mr Thomas and Mr Buntine are doctors who assessed Mr Selimovski’s physical impairment, their observations in respect of his psychological state accord with my own observations.

84I gained little assistance in this matter from Dr Entwisle’s report, as I consider his assessment of Mr Selimovski was inconsistent with Mr Selimovski’s own reported symptoms.  I do not accept that his memory and concentration were intact, and that his sleep was only interrupted on occasions. I considered Dr Entwisle’s assessment of Mr Selimovski seemed unrealistically positive and inconsistent with Mr Selimovski’s presentation in Court, or his attendance on Dr Turnbull.

85I also gained little assistance from the report of Dr Stern, as it was provided at a time when Mr Selimovski was still working and prior to the deterioration of his mental state in late 2019.

86Having considered all of the evidence, I am satisfied that Mr Selimovski has no capacity for work due to his psychiatric impairment and that he therefore suffers a loss of earning capacity of at least 40 per cent.  For the reasons stated above, I am also satisfied that this loss of earning capacity is permanent. 

87Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr Selimovski meet the “very considerable test”.[1]  Given my acceptance that Mr Selimovski’s psychiatric impairment prevents him from working, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as “at least very considerable”.

[1]Section 325(2)(c) of the Act

88As Mr Selimovski has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his psychiatric impairment, it is not necessary for me to consider separately his pain and suffering consequences.[2]

[2]Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]

Mr Selimovski’s left hand impairment

89In circumstances where I am granting leave to Mr Selimovski to seek common law damages under both heads for his psychiatric impairment, it is not necessary for me to separately consider whether the pecuniary loss consequences in respect of his left hand impairment meets the threshold.

90Accordingly, I grant leave to the plaintiff to commence proceedings at common law for injuries sustained in the course of his employment for pecuniary loss and pain and suffering damages.

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