Sharples v Toll Holdings and VWA
[2013] VCC 208
•25 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05480
| ROBERT SHARPLES | Plaintiff |
| v | |
| TOLL HOLDINGS | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 February and 1 March 2013 | |
DATE OF JUDGMENT: | 25 March 2013 | |
CASE MAY BE CITED AS: | Sharples v Toll Holdings & VWA | |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 208 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to commence proceedings to recover pain and suffering and pecuniary loss damages arising from employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Ryan | Verduci Lawyers |
| For the Defendants | Mr M Titshall QC with Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence an action claiming damages for the pain and suffering and economic loss consequences suffered by him by reason of an injury sustained by him to his lumbar spine in the course of his employment with the first defendant. It is put by the plaintiff that the subject injury arose by reason of the plaintiff’s requirement to engage in the repetitive manhandling of product over a period of time commencing in or about September 2007.
2 No issue arises in this case as to whether the plaintiff suffered a compensable injury in the course of his employment. Essentially, the issues which arise for my determination involve:
(i) The identification of the consequences to the plaintiff of any:
(a)organic injury suffered by him;
(b)psychiatric injury suffered by him;
the consequences associated with each of which are to be determined independently of each other;
(ii) The assessment as to whether such consequences meet the statutory threshold established by the Accident Compensation Act 1985 (“the Act”) both with respect to pain and suffering and economic loss.
3 In the proceeding, the parties rely upon:
(i) Five affidavits sworn by the plaintiff;
(ii) Medical and like reports tendered by each of the parties;
(iii) The viva voce evidence of the plaintiff, Dr Andrew Schon, and Mr Paul D’Urso.
4 Little point is served in reciting the material set out in the plaintiff’s affidavits. Equally, it is appropriate that I provide a very brief summary of that material.
The Plaintiff’s affidavit material
5 The plaintiff was educated to the age of sixteen. He commenced employment with the first defendant in September 2007 as a picker/packer. He injured himself on or about 8 April 2008, and after missing some time from work and returning to light duties (which involved him working four hours a day, five days a week), he was eventually forced to cease all forms of work in December 2009, and has not worked since that date.
6 The plaintiff described the following consequences to him of his injury:
(i) His marriage broke down;
(ii) He has been required to ingest high quantities of painkilling medication;
(iii) He has difficulty sitting, standing and walking;
(iv) He suffers from leg pain which extends into his left leg;
(v) He suffers from depression and uncontrollable mood swings.
The Plaintiff’s viva voce evidence
7 The plaintiff attended for cross-examination, in the course of which he said that:
(i) He had, since the break-up of his relationship with his wife, been involved in approximately six relationships of varying durations with women who he had, for the most part, met via the internet.
(ii) He saw his two boys, who live in Caroline Springs (which involves a 20 to 30-minute car trip) on a fortnightly basis, commenting, “I get there every fortnight. Sometimes I can’t because of pain and that.”
(iii) He had had his bowel removed as the result of contracting bowel cancer in 2001, and had, since that time, made use of an ileostomy bag.
(iv) He had, since 2010, been in receipt of a disability pension which was based upon incapacity associated with the condition in his back and his depression.
(v) He spent his time “just going for walks, spend time with my girlfriend, do a bit of weeding and playing with my cats”.
(vi) He and his girlfriend might sometimes go out and see a band at a hotel.[1]
[1]Transcript (“T”) 41
(vii) He regularly visited his children.[2]
[2]T42
(viii) Although he was self-taught, he was quite skilled in using a computer. He had attempted to set up a business undertaking web designing, which he had:
· registered on the Google website; and
· printed cards and magnet stickers for, and established a host server.
Although that business was unsuccessful, the plaintiff said that he possessed the skills to operate the business, and that he was “pretty handy with a computer”.[3]
[3]T50
(ix) Since ceasing work with the first defendant, he had never actually applied for any job. He had, however, looked at jobs which were available in the marketplace, explaining “I was looking at different jobs, but every job I looked at there was always something I couldn’t do”.
(x) He would be unable to work as a petrol-station attendant behind the counter because that work involved him standing, sitting and bending as he stocked shelves and fridges, and that he was unfit to work as a spare-parts interpreter, given the weight he was potentially required to handle. He accepted, however, that his knowledge of motor-vehicle components was such that he would have been equipped to undertake the work if he had the physical capacity to do so.
(xi) He anticipated he would have difficulty working as a radio dispatcher by reason of an impediment which he had with respect to his hearing in both of his ears; that he would be unable to work manning an IT Helpline desk because he was unable to sit for long periods of time.
(xii) He had an ability to sit for approximately 45 minutes and stand in one spot for approximately half-an-hour.
The surveillance evidence
8 In the course of the application, video-surveillance of the plaintiff generated over some fifteen separate days of surveillance involving a total duration of approximately 1.5 hours, was shown by the defendants to the plaintiff.
9 It is not in issue that the film was generated over a total of 341 hours of surveillance.
10 It was put on behalf of the defendants that there was a clear difference in the way the plaintiff walked as depicted in the video generated in the year 2009 and the most recent film.
11 There is no issue that the earlier film depicted the plaintiff walking with a very severe limp, and the more recent film depicted, it is put by the defendants, a manner of walking which is open to interpretation and involved either a slight limp or the employment by the plaintiff of an unrestricted although idiosyncratic gait. As to the latter issue, it was my impression that the plaintiff, even in the most recent surveillance, was walking with a slight limp which favoured his left leg. I accept the position of the defendants, however, that there was a very marked improvement in the plaintiff’s ability to walk as depicted by the surveillance, the plaintiff’s restriction of movement in the most recent surveillance being such that the presence of his limp was difficult to detect.
12 Other than upon the issue as to whether the plaintiff walked with a limp and the severity of that limp, my impression of the video-surveillance was that it did not demonstrate the plaintiff as engaging in any activity which was inconsistent with his evidence as to the range of activity which he was now restricted to by reason of his injury.
13 Further, when the plaintiff’s activities depicted in the video-surveillance is considered in the context of:
· the brevity of the video material; and
· the hundreds of hours of surveillance undertaken;
I am satisfied that the effect of the surveillance footage does nothing to undermine the plaintiff’s case that his level of activity has been severely compromised by his condition.
Analysis as to the organic condition with which the plaintiff presents insofar as it impacts upon his pain and capacity for activity and work
The medical evidence
14 Dr Andrew Schon, the plaintiff’s general practitioner, has provided a number of medical reports and certificates.[4]
[4]Plaintiff’s Court Book (“PCB”) 48–63.7
15 In a report dated 28 July 2008, Dr Schon stated that he first examined the plaintiff on behalf of the Toll Group for the purpose of undertaking a pre-employment medical examination, and that as a result of this examination, the plaintiff was certified as fit to perform manual handling involving weights less than 20 kilograms.
16 Having regard to:
· the plaintiff’s age at that time;
· the fact the plaintiff was making use of an ileostomy bag; and
· the fact that Dr Schon had deemed the plaintiff fit to perform repeated manual handling of weights below 20 kilograms;
I do not regard the restriction imposed by Dr Schon upon the plaintiff’s capacity to work as indicating the presence of any underlying condition in the plaintiff’s lumbar spine which restricted his capacity to perform manual work.
17 As at 9 May 2008, Dr Schon reported that a CT scan revealed the plaintiff to have:
· a broad-based posterior disc bulge at L4‑5 indenting the thecal sac with implied impingement against the descending L5 nerve roots on both sides; and
· a moderate L5‑S1 broad-based disc bulge associated with facet-joint osteophytes causing minor narrowing of the lateral recesses bilaterally with possible impingement against the descending S5 nerve roots bilaterally.
18 Dr Schon said:
· that the plaintiff presented to him “approximately five weeks” after the recurrence of his injury, and that he had, at that time, reduced the plaintiff’s hours of work to four hours a day, with restrictions that he was not to bend and not to lift weights of greater than 5 kilograms.
· that by mid-June 2008, the plaintiff was developing signs of motor weakness in the left leg, in that he could not toe-walk on it, and he was getting significant spasm on eliciting a left knee-jerk, with the left ankle-jerk being absent.
19 As at July 2008, Dr Schon expressed the opinion that the plaintiff had suffered one or more disc injuries to his lumbar spine, that he did not present with any pre-existing back injury, and that his condition had not stabilised commenting: “There is no suggestion of any functional overlay or exaggeration of symptoms”, and that the plaintiff’s presentation with multi-level disc disease did not bode well for his return to full pre-injury duties.
20 In December 2009, Dr Schon reported that the plaintiff was being managed by the prescription of:
· Neurontin, 150 milligrams twice a day;
· Panadeine Forte, two tablets every four hours; and
· a trial of Norspan patches, which had been initiated on 16 December 2009.
Dr Schon commented as to the plaintiff’s presentation:
“I believe there is a work related component but I am unable to distinguish how much of this is Chronic Pain Syndrome and how much is due to facet joint inflammation and how much is functional overlay.”
21 In the report dated 10 February 2013, Dr Schon commented most recently upon the plaintiff’s current capacity for work, opining:
·that the plaintiff was unfit for any work for which he was experienced;
·that the plaintiff’s disability was permanent;
·that the plaintiff was unfit for retraining;
·that the plaintiff required maintenance with medication in the form of Prestiq, OxyContin, Dothiepin and Panadeine Forte and that his condition was not amenable to surgical intervention.
22 In the course of cross-examination, the issue was explored with Dr Schon as to whether he employed the term “Chronic Pain Syndrome” and “functional overlay” to describe pain which was physiologically based or pain which was emanating from, and primarily caused by, a psychological illness or condition.
23 Having regard to Dr Schon’s evidence,[5] I am satisfied that he held the opinion that the plaintiff’s presentation with pain such that it required the prescription the medication referred to in Dr Schon’s report of 10 February 2013, was primarily sponsored by the presence of an organic condition.
[5]T124, L20 – T125, L23; T136, L21 – T137, L6
24 Mr Paul D’Urso, a neurosurgeon, first examined the plaintiff at the referral of Dr Sean Salumi on 11 July 2008. Mr D’Urso has reported upon the plaintiff’s condition in a series of reports and letters.[6]
[6]PCB 65- 71.10
25 In his most recent report dated 30 January 2013, Mr D’Urso opined:
·That the plaintiff presented with a stabilised long-term incapacity in his lumbar spine which incapacitated him for any type of employment for which he had the skill and ability to perform;
·That the plaintiff remained incapacitated with back pain and sciatic symptoms emanating from a condition which appeared to have stabilised and was not amenable to surgery.
26 In the course of his viva voce evidence, Mr D’Urso commented that:
·the plaintiff’s leg pain was not entirely consistent, occasionally presenting bilaterally and occasionally present as being more left-sided;[7]
·that the weakness in the plaintiff’s lower limb was present throughout;
·that the plaintiff’s presentation was consistent with the presence of a significant non-organic component in the form of abnormal illness behaviour which, whilst that term was to be distinguished with a functional overlay presentation, was “You know, more a psychiatric condition rather than a physical condition; it was nevertheless either psychiatric or psychological in terms of its manifestation”;[8]
·that there was not one single factor which gave rise to the plaintiff’s incapacity from employment and that the relevant factors involved the presence of symptoms which had a neurological basis, a neuropathic process, and the presence of a functional overlay or abnormal illness behaviour.
[7]T154
[8]T159
27 When, in the course of his evidence, Mr D’Urso was asked to express an opinion as to the part played by physical factors, excluding any emotional or psychosomatic psychological factors, in restricting the plaintiff’s fitness for work, Mr D’Urso commented that the plaintiff presented with a significant organic basis for his incapacity, that his incapacity was mainly organically based, and that the functional extent of his capacity was relatively minor compared to the more substantial organic basis of his presentation.[9]
[9]T166
28 The plaintiff was assessed by Dr Clayton Thomas in January 2009, at which time he expressed the opinion that the plaintiff’s predominant problem was of lower back pain. He noted that the plaintiff was working from home and was happy to maintain such work. As at October 2010, Dr Clayton Thomas expressed the opinion that the plaintiff presented with organic and non-organic components; that he had no capacity for work; that there was a significant non-organic component involving the plaintiff’s presentation and that, from the organic point of view in isolation, the plaintiff was partially incapacitated for work.
29 Whilst in May 2011, Dr Clayton Thomas opined that the plaintiff continued to present with no work capacity, he was of the opinion that it was reasonable to expect improvement in the plaintiff’s condition at that time.
30 In January 2013, Dr Clayton Thomas opined that the injuries suffered by the plaintiff significantly affected his capacity to work, to be social, to be able to perform domestic chores and his overall lifestyle given his age, his education and his training. He opined that the plaintiff presented with no work capacity but that from a purely organic point of view, he possessed a capacity for work.
31 Given the non-specific nature of the comments made by Dr Thomas which fail to identify the extent of any retained capacity for work by the plaintiff, or the extent of his organic and non-organic symptoms, the opinions expressed by Dr Thomas have little bearing upon the tasks required of me in this application.
32 In a series of reports between 8 August 2008 and 22 April 2010, Dr David McIntosh, a consulting orthopaedic surgeon who examined the plaintiff on behalf of the Toll Group, opined that the plaintiff presented with a soft-tissue injury to his lumbar spine superimposed on significant pre-existing degenerative changes, and that the plaintiff presented with a degree of abnormal pain behaviour.[10]
[10]See the assessment of Dr McIntosh in January 2009 at PCB 103
33 In October 2009, Dr McIntosh expressed the opinion that the plaintiff was unfit for heavy work or work involving repetitive bending or lifting, but was fit to perform a wide range of activities involving light to moderate work.
34 Mr Peter Kudelka examined the plaintiff 19 September 2011 and again on 12 December 2012. In his most recent report, Mr Kudelka opined that the plaintiff presented with restricted back movements, together with evidence of motor and sensory changes in his lower left leg, and commented that whilst he did not consider the plaintiff to be totally disabled, he considered the plaintiff to have a permanent incapacity for any type of employment which was physically demanding.
35 In a report dated 30 June 2011, Mr Michael Dooley opined:
· That the plaintiff presented with degenerative disc disease in his low lumbar spine;
· That he expected that the plaintiff’s back pain, from an orthopaedic point of view alone, would be responsible for the presence of intermittent low-back pain and lower limb pain.
· That the plaintiff presented with a significant psychological reaction to his injury and that from an orthopaedic viewpoint alone, the plaintiff was capable of carrying out light physical work, together with clerical duties.
36 In a further report dated 25 February 2013, Mr Dooley opined that the plaintiff presented with a Chronic Pain Syndrome which involved a complex physical and psychological reaction in response to injury or pain, a feature of which involved a patient suffering “ongoing pain out of proportion to what one would expect for the organic injury”.[11]
[11]Defendants’ Court Book (“DCB”) 126
37 Mr Dooley opined that from the orthopaedic viewpoint alone, he would have expected the plaintiff to have experienced intermittent low-back pain and occasional lower limb pain, and that the plaintiff would have had the capacity to engage in a wide range of employment, domestic and leisure pursuits involving light physical work or clerical duties, but not work which involved heavy physical activity or a lot of bending lifting or twisting. He opined, from the orthopaedic point of view, the plaintiff had the capacity to work as an automotive spare parts interpreter, radio dispatcher or IT worker.
38 In expressing this opinion, it is clear that Mr Dooley was acting upon and accepting of the description and analysis employed by Ms Bryant as to the activities involved in these occupations. Insofar as that analysis is unpersuasive, for the reasons to which I will refer, it undermines the position adopted by Mr Dooley as to this issue.
39 Further, having regard to Mr Dooley’s opinion that the organic symptoms with which the plaintiff presents are responsible for sponsoring only intermittent low-back pain and occasional lower limb pain, I find his opinion that fusion surgery represents an option for the plaintiff’s medical management, difficult to reconcile. For these two reasons, I find the opinion expressed by Mr Dooley to be unpersuasive.
40 Ms Joanne Bryant, occupational therapist, in a report dated 16 March 2011, identifies three occupations which she opined represented suitable employment options for the plaintiff, namely:
(i)spare parts interpreter;
(ii)radio dispatcher;
(iii)IT customer support officer.
41 I find the report generated by Ms Bryant to be unpersuasive in identifying work which the plaintiff would have a current capacity to undertake, for the following reasons:
(i) Ms Bryant’s opinion was based on medical reports generated between May 2008 and December 2010, and was prepared on the basis of her analysis of medical opinion which “confirms that he is fit for a wide variety of full- time light to moderate work activities where he is able to avoid heavy work or repetitive bending or lifting”. In that sense, the assessments of Dr Schon and Mr D’Urso as to the plaintiff’s capacity for work were not taken into account by Ms Bryant. In my opinion, Dr Schon and Mr D’Urso, as the plaintiff’s treating doctors who have seen him in the course of numerous consultations, are well placed, if not best placed, to opine as to the plaintiff’s capacity for employment.
(i) As to the work duties identified by Ms Bryant as being suitable for the plaintiff, I note that Ms Bryant appeared to accept as being relevant for the generation of her report, the opinion expressed by Dr Michael Waechter in December 2010 that the plaintiff had “a limited capacity for prolonged sitting and standing and is unable to do manual work involving bending or lifting”.
Equally, Ms Bryant seemed to accept the statements made by the plaintiff as to his “reported and observed postural tolerances” which indicated that the plaintiff would, in Ms Bryant’s opinion, “be capable of sedentary work which allows for postural rotation, and to avoid standing for longer than 30 minutes or walking for longer than 20 minutes”.
In the context of those parameters:
· Although Ms Bryant described the work of a radio dispatcher as allowing the plaintiff to sit and stand at will, in making that statement, Ms Bryant appeared to ignore the information provided to her in the course of the telephone investigation by her of the duties involved in radio dispatching. In response to an enquiry to the main physical requirement for radio dispatcher, Ms Bryant reports that she was informed:
“Well, it is sitting. You sit at a screen taking calls from people and you’re meant to be able to put the details they tell you into a database. It is mainly sitting but you do get up and move about.”
In my opinion, to convert the above statement into the job description employed by her, namely that the plaintiff could stand and sit at will, involves a selective and misleading description of a work activity which mainly involves sitting.
· When describing the activity required of a spare parts interpreter (namely the selling of spare parts in a retail or wholesale establishment), Ms Bryant asserted that the performance of these duties involved the capacity to “rotate between sitting and standing postures at will”.
The basis for that statement by Ms Bryant is not identified in the course of her report. The suggestion that a person involved in supplying of spare parts in a retail or wholesale premises would be afforded the flexibility of not having to stand and sit regularly for periods of more than 30 minutes is not borne out by the analysis undertaken by Ms Bryant at the Pro Wash Flight Drive premises.[12] Equally, the activities involved in the occupation clearly involve bending when checking stock in lower bays, the picking of stock for despatch which involved the use of a forklift or “manually depending on item”.[13]
[12]DCB 76-78
[13]DCB 78
· Notwithstanding the statement by Ms Bryant that her observation of the activities required involved predominantly handling small parts, given that this work falls within a job description in which:
§ the range of items which might be required to be handled included a maximum weight of 9.1 kilograms;
§ involves the need to bend when required to deal with stock located on low bays, the using of a forklift, and which places no restriction upon the duration of sitting or standing;
I am of the opinion that the analysis by Ms Bryant as to the suitability of this occupation for the plaintiff is both selective and unconvincing.
· Ms Bryant described the position of IT help desk as involving activity which is described as “sedentary”. Whilst the physical demands of such employment are described at DCB 98 as involving the ability to stretch whilst talking using a head set, the posture involved in the activity is described as involving constant seated work. Again, I find the recommendation by Ms Bryant that this job description is suitable for the plaintiff to be unconvincing and selective.
42 In a report dated 24 January 2012, Ms Bryant prepared a report which was essentially responsive to the report of Ms L Schnider, a vocational counsellor, dated 28 December 2011. Insofar as Ms Bryant, in that report, maintains the position expressed by her in a previous report, I do not consider the content of Ms Bryant’s most recent report to impact in any meaningful way upon my analysis as to the persuasiveness of the primary report commissioned by Ms Bryant.
43 It is clear that there is a general consensus between each of the medical examiners who has undertaken an assessment of the physical injury with which the plaintiff presents, in that there is no issue that the plaintiff suffers from an aggravation of a pre-existing asymptomatic degenerative condition in his lumbar spine which is responsible for causing symptoms of pain. The only difference of opinion between the various experts involves the question as to the extent of the pain and disability which is sponsored by that condition and whether the plaintiff is limited by his condition in the type and range of work which he can perform or excluded in any meaningful way from working.
44 Further, it is not suggested by any of the medical practitioners who have opined in this matter that the plaintiff is disingenuous in his presentation or is deliberately exaggerating his symptoms. Rather, the point of disagreement involves the way to apportion the responsibility for the symptoms and incapacity with which the plaintiff presents, between organic and functional factors.
45 Equally, it is clear, in my opinion, that the vast majority of the medical opinion relied upon by the parties in the case is accepting of the position that the plaintiff presents with a condition which largely incapacitates him for employment when account is taken of both the organic and non-organic components of his presentation.
46 I am satisfied that:
(i) Mr D’Urso:
· Whose relationship with the plaintiff as a treating neurosurgeon, has extended over a period of five years commencing in July 2008; and
· Who most recently reviewed the plaintiff on 22 January 2013, at which time he took no issue with the plaintiff’s employment of OxyContin and Lyrica to manage his symptoms;
(ii) Dr Andrew Schon:
· who first examined the plaintiff prior to the plaintiff commencing employment with the first defendant; and
· who has managed the plaintiff’s condition between the occurrence of his injury and the present date (other than for a period during which the plaintiff consulted another general practitioner for a period of approximately twelve months between December 2009 and December 2010);
are best placed to opine as to whether the plaintiff’s pain is primarily the result of an organic or non-organic condition, the severity of his symptoms and as to the plaintiff’s capacity for employment. Further, I had the opportunity to assess each of these witnesses as they gave evidence and were cross-examined, and found them to be persuasive witnesses.
47 As to the first two issues (whether the plaintiff’s pain is primarily the result of an organic or non-organic condition and the severity of his symptoms), the viva voce evidence of both doctors, when combined with the fact that both doctors support the management of the plaintiff by the prescription of OxyContin between 40 and 80 milligrams per day, Dothiepin, a neuropathic pain agent, Lyrica and Panadeine Forte, leaves no room for doubt that both doctors are of the opinion that the plaintiff’s primary presentation involves organic pain of a significant and debilitating degree.[14]
[14]In accepting the opinions of both medical practitioners in this regard, I adopt the method of analysis referred to by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 on 20 February 2013.
48 As to the second issue (the plaintiff’s retained capacity for employment), both doctors are of the opinion that the plaintiff has no retained capacity for work for which he is suited.[15]
[15] In my opinion, the opinion of both doctors in this regard is given even more weight by the inability of Ms Bryant to identify any work which the plaintiff is fit to undertake, and the opinion of Ms Schneider that the plaintiff has no capacity for employment.
Finding
49 I am satisfied, for the reasons set out above:
(i) That the plaintiff has established that the organic injury to his lumbar spine gives rise to an impairment which renders him permanently incapacitated from engaging in any form of suitable employment, and that the consequences of that loss of earning capacity, when judged by a comparison with other cases in the range of possible impairments, is fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
(ii) That the plaintiff is entitled to the leave which he seeks in this application, namely to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury and resultant incapacity sustained by him the subject of his application under sub-s(a) of the definition of “serious injury” within s134AB(37) of the Act.[16]
Analysis as to the psychiatric condition with which the plaintiff presents in so far as it impacts upon his pain and capacity for activity and work
[16]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
50 As to the application made by the plaintiff under sub-s(c) of the definition of “serious” in s134AB(37) of the Act, having regard to my findings that the plaintiff’s incapacity for work stems primarily from his organic injury, I am not satisfied by reason of:
·the limited medical treatment that the plaintiff has required in respect of his emotional state;
·the modest regime of medication employed to manage the plaintiff’s emotional state;
·the assessments by Dr Kornan,[17] Dr Shan[18] and Dr Entwisle;[19]
that it is appropriate to describe the plaintiff as presenting with a psychiatric psychological condition which meets the threshold established by the provision of the Act.
[17]PCB 89.5
[18]DCB 124
[19]DCB 121
51 I will hear the parties as to the precise from the orders sought and upon the issue of costs.
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