Warfe v Woolworths (Vic) Pty Ltd
[2011] VCC 1517
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05137
| IAN DOUGLAS WARFE | Plaintiff |
| v | |
| WOOLWORTHS (VICTORIA) PTY LTD | Defendant |
---
| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 September, 3, 5 October and 21 November 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Warfe v Woolworths (Vic) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1517 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – pain and suffering and loss of earning capacity – injuries to the left and right arm and psychological behavioural disturbance – application granted.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Mulfuni SC with | Barbante & Associates Pty |
| Mr M Walsh | ||
| For the Defendant | Mr R H Gillies QC with | Gadens Lawyers |
| Mr J Batten (one day) Mr R Dyer | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injuries suffered by him in the course of his employment with the defendant in 2001 to 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or ... (c) permanent severe mental or permanent severe behavioural disturbance or disorder; ...
5 The body functions relied upon in this application are injuries to the left and right arm, and a psychological behavioural disturbance.
6 The plaintiff relied upon an affidavit sworn 1 July 2010. The plaintiff and Dr Francis Payne were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 Under s.134AB(38)(b) of the Act, the terms “serious” and “severe” are to be:
“… satisfied by reference to the consequences to the worker of any
impairment or loss of a body function … with respect to—(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible
impairments or losses of a body function … .”
9 Under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering or loss of earning capacity, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
10 Under s.134AB(38)(d) of the Act:
“a mental or behavioural disturbance in this case the pain and suffering or the loss of earning capacity … shall not be held to be severe … unless the … consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”
11 Section 134AB(38)(b) of the Act provides that the consequences of an injury in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only;
12 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[2]
[2] Advanced Wire & Cable Pty Ltd v Abdulle [2009[ VSCA 170 at [63]
13 In addition, the plaintiff must prove, on the balance of probabilities, that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant after 20 October 1999.[3]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[4]
(c)
the mental or behavioural disturbance or disorder must be permanent, in the sense that it is likely to continue into the foreseeable future.[5]
[3] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[4] Barwon Spinners (op cit) at paragraph [33]
[5] Barwon Spinners (op cit) at paragraph [33]
14 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
15 The test for “serious”, as set out in paragraph (b) and (c) and the test for “severe” in (a) and (d) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16 In determining the application, the Court:
[6] S.134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
(a) must make the assessment of “serious injury” at the time the application is heard.[6] (b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[7] 17 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish that:
(a)
as at the date of hearing, he has a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act; and
(b)
after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
The Issue
18 Counsel for the defendant informed the Court that this is a case in which the credit of the plaintiff will be attacked to the extent that the plaintiff has feigned the disability and that the evidence has been affected. If the plaintiff has suffered any injury at work, whether it be psychiatric or organic, the consequences are minor and fall short of the requisite level.
The Plaintiff’s Evidence
19 In his affidavit sworn on 1 July 2010, the plaintiff deposes that:
•
He commenced employment with the Safeway in 1987. He worked until October 2004, apart from a period of two years when he was off work due to a psychiatric illness. He recovered and returned to full-time employment. At the time of his injury, he was employed by the defendant as a long life manager in the grocery department. This position required him to perform repetitive duties including loading and unloading pallets from trucks, dragging heavy pallets, lifting weights overhead, lifting and carrying products, building the ends of aisles and packing and stocking shelves.
•
Between May 2001 and October 2004, he sustained an injury to his right and left elbows while performing his work duties. In May 2001, he injured his right elbow. He submitted a claim form to WorkCover, which was accepted. He continued to work, but favoured his right elbow, which placed extra strain and pressure on his left elbow. As a consequence, his left elbow became problematic in about August 2004. He was diagnosed with tennis elbow, which was worse in the right elbow.
•
Between September 2003 and October 2004, his elbow injuries became worse, because he was required to move pallets over a grate, which caused vibration, banging and jarring of his elbows. He was placed on light duties until he cased work in October 2004.
•
Between September 2003 and October 2004, he suffered psychiatric injury, being a Major Depressive Disorder and Anxiety Disorder, as a result of being harassed, insulted and bullied at work.
•
On or about October 2004, he attended his general practitioner, Dr Chan, complaining of increased anxiety and depression as a result of being harassed and bullied at work. On or about 21 October 2004, he returned to Dr Chan, at which time Dr Chan prescribed Effexor and certified him unfit to return to work.
•
He currently takes Cymbalta for depression and Valium when required. When he has pain in his elbows he places a warm washer over the elbow and takes Panadol. He wears a brace on his right elbow. He avoids taking prescription painkillers for his elbow pain because of the other medication he is taking.
•
He has difficulty performing simple tasks like carrying milk, cleaning and gardening, which causes his right arm to be painful. He experiences pain two to three times a week.
•
He continues to experience anxiety and nervousness. He suffers from mood swings and gets irritable and frustrated easily. He has had suicidal thoughts. He has lost self esteem and finds it difficult to socialise. He avoids spending time with his family, visiting shopping centres, opening mail and answering the telephone. When he feels very depressed he smokes excessively. He has no libido.
•
The medication he takes affects his ability to concentrate, to think clearly and to sleep. He sleeps poorly on most nights and often takes Valium to help him sleep. He avoids driving because of the medication.
•
He has been unable to work for the past six years and does not believe he is capable of working because of his psychiatric condition. He fears working in a position where he is supervised.
The Plaintiff’s Evidence in Cross-examination
20 The plaintiff was cross-examined and gave the following pertinent evidence:
•
He smoked fifty cigarettes per day. In the last 24 hours, he had smoked seventy-five.
•
He agreed he had a right shoulder injury for the past two years, which affected his neck.
•
He had not seen a doctor or received treatment in respect to his elbows for more than two years because he had had been told that there was nothing more that could be done for his elbows. He self-treats, applies Voltaren Gel, hot flannels and a vibrating machine to the elbows.
•
He disagreed that he had difficulties with management at Safeway since 1995. He agreed that in 1995, when he worked at Lakes Entrance, he had trouble with some of the management and as a result consulted his general practitioner who prescribed anti-depressants. He arranged a transfer to South Preston, partly because of his mental health. He agreed he was in conflict with management at that store. He was required to work forty-five hours per week from Monday to Friday and to work on Sundays from 2.00 am to 6.00 am. He lived at Hoppers Crossing and found driving from Hoppers Crossing to Preston difficult, particularly for the Sunday shift. He resigned in 1998. His general practitioner continued to prescribe antidepressants.
•
He agreed he did not work between 1998 and 2001 because of stress and depression. During that period, he separated from his wife. He agreed he was admitted to the Werribee Hospital because he had suicidal thoughts. He denied having a gambling problem. He was asked about bankruptcy. He said he could not pay his car loan on unemployment benefits.
•
In 2001, he was re-employed at the Newcomb store. He had problems because he developed tennis elbow and the manager required him to work full duties with his elbow. He was subsequently given lighter duties. In 2002, he moved to the Lara store. He was moved to the Corio store where there was tension between employees who formerly worked for Franklins and those who had formerly worked with Safeway. He was transferred to Drysdale where he worked with Mr Cohen and tensions escalated. He said Mr Cohen constantly abused him, threw items at him, including glass bottles, and put him down. He returned to the Lara store, which was a demotion, but was told that Mr Cohen had said, “I finally got rid of the bastard”. He said he was tired of being mistreated. He was on restrictions of no lifting because of his elbows. He was receiving cortisone injections for his elbows. He said he was finally put off work by his doctors. He said he had attempted to return to work, but he had a fear of returning to the workplace.
•
He agreed that at Nagambie he mowed the lawns, put boats out and cut wood with a chain saw if required, but he denied using the chain saw to cut wood regularly. He said last year he bought his wood but this year he tried to cut it. He gardens sometimes; it depends on his motivation. He weeds, uses a shovel or rake.
•
He agreed that he constructed a vegetable garden with the help of his father and son. He said he would have spent about one hour doing the work.
•
He said his right elbow gives him more trouble than the left. He said when the elbow is inflamed; he cannot move it to drink coffee. He said if he is gardening, the right elbow region becomes sore. He said he drives an automatic car using his left hand.
•
He said Gwen has been his carer officially for the past three years but unofficially for nine years. She provides medication, meals, washing, performs most of the driving, answers the telephone, because he does not like answering the phone, and motivates him. He agreed he did not do much at home. He said he plays on the computer, makes his own coffee and feeds the dog. He agreed he had lost his capacity to live an independent life.
•
He was shown film taken on 16 January 2011. He agreed, when walking his arm movements were free and unrestricted, but said when he drank his coffee his elbow was lifted high for that purpose. He agreed the film showed him loading life jackets into bags and adjusting ropes on the canoes. He agreed he was able to extend his arms outward and above shoulder height as well as bend over and stoop.
•
He agreed the film showed him at a business called the Nagambie Lakes Boat Hire and that he assisted with canoes. He said the canoes were taken to the water’s edge at the beginning of the season. His job was to secure them at night and load them on a trailer. He required assistance. He said generally there were no bookings. He returned the canoes to his house each night for safe storage. He was trying to get greater exposure to more people. He said in February or March 2011, he stopped hiring the canoes because it became too stressful.
•
He said Gwen collected the money from customers. He said they were not paid for their work. He did it for the social interaction and was encouraged to do the work by his doctors. He denied he ran the business daily throughout the Christmas holidays. He said he worked from 10.00 am to 4.00 pm. He said he did not consider it work. He suffered with pain afterwards. He agreed he had worked there since 2008. He said his two sons came up at weekends to help him and that the busy periods were Christmas and Easter.
•
He said he was not usually busy at weekends, although he agreed that on the warmer weekends he could be busy.
• He agreed he gambled once a fortnight and usually spent $50. •
He agreed he was shown on the film carrying a fuel tank but he said his arm was in a locked position. He was asked about the canoes. He said he slid them off the trailer and he only lifted them at one end.
•
He was shown a third video and made the comment that the video does not show the pain he feels. He pointed out that he was wearing a brace because he was having trouble with his arm. He agreed he was shown starting a boat. He said it was one of the hardest tasks and caused a lot of pain in his elbow. He was shown lifting a canoe. He said he was lifting the canoe with his left arm and the right arm was used for guidance. He said the canoes were made of fibreglass and weighed approximately 25 kilograms.
•
He agreed he saw Dr Shan in March of 2011. He denied that Dr Shan asked him if he was working. He had told Dr Shan about the boats and the canoes.
•
He was taken to another film taken on 27 and 28 January 2011. He agreed he was starting the outboard motor and that he was seen carrying a canoe using both arms. He said the video did not show that most of the weight of the canoe is with his left arm. He agreed he was seen bucketing water out of the boat. He said he did some of the bucketing with his right and some with his left arm. He said even though the bucket was a ten litre bucket, the video did not show the amount of water he had in the bucket. He said it was possibly two or three litres, which weighs between two and three kilograms.
•
He said he told Mr Dooley that he had difficulty using power tools, but that at times he can use a chain saw in a limited way. He agreed some days he can use the chain saw for fifteen minutes, some days for half an hour, other days he cannot even cut two pieces of wood. He said the video did not show the medication he had taken on any day.
Dr Payne’s Evidence in Cross-examination
21 Dr Payne said the plaintiff was genuinely depressed. In September 2011, in the period between giving evidence, the plaintiff consulted Dr Payne. Dr Payne said the plaintiff was distressed at the accusation he was not depressed, which he found extremely difficult to deal with. He did not believe that the plaintiff was lying. He said the plaintiff’s depression would be exacerbated if he felt he was being called a liar.
22 Dr Payne said the plaintiff presents in a rather blank and unemotional manner. He said if he had been taking Diazepam prior to giving evidence his emotional responses would have been blunted.
23 He said the plaintiff told him that he was repairing and maintaining boats, and helping on a voluntary basis with the running of the business. He said he would not have assumed he was running the business full time. He agreed he was told that the plaintiff received free accommodation in return for caretaking a property including maintenance on some boats and gardening. Dr Payne agreed that if the plaintiff was handling the boats, hiring the boats, taking money and bookings, that was more activity than he was led to believe at the time. He said he had encouraged him to socialise more.
24 He did not believe the activities were inconsistent with his view that the plaintiff had become entrenched in the compensation process, and had a tendency to ruminate. He said the plaintiff’s mood tended to fluctuate but overall he remained depressed. He agreed he took the plaintiff on face value. He said he relied on clinical observation. He said those who are entrenched in the compensation process are less likely to experience improvement.
25 In re-examination, he said he did not believe that the plaintiff had been deceitful about his psychiatric history. He said the plaintiff had suffered very significant depression during the three years he had been treating him and it would be difficult for an individual to feign depression as successfully as he has presented.
26 He believed the plaintiff was potentially capable of self-harm. He encouraged the plaintiff to be more active.
Investigations
27 On 12 July 2005 an ultrasound of the right elbow was performed. The opinion was there was small calcification within the tendon attached to the lateral epicondyle of the right elbow; no sign of pathology within the thorax.
The Plaintiff’s Medical Evidence
28 The plaintiff relied upon the following medical reports.
29 Dr Jason Chan, general practitioner, provided reports of 23 November and 21 December 2006. The plaintiff had been a patient of Dr Chan’s for nine years. Dr Chan confirmed that in March 2004 the plaintiff had first complained that he was suffering stress as a result of the behaviour of a work colleague, which involved intimidatory behaviour including bullying and verbal abuse. He was prescribed anti-depressant medication and was referred to a psychologist for counselling and a psychiatrist for treatment.
30 Dr Chan saw the plaintiff on a monthly basis. He said the plaintiff was very frustrated, angry, resentful towards the defendant, and blamed the defendant’s lack of support for his current problems. He was frustrated that he could not work and had difficulty going out in public. He had suffered a marked deterioration in his relationships, in particular with his partner Gwen. His condition declined rapidly, and his level of functioning worsened, when his partner had to be with her ill mother in Perth.
31 Dr Chan said that the plaintiff’s recovery would be dependent on his ability to find gainful employment and to provide for his family. Dr Chan did not see that taking place in the foreseeable future. He said the plaintiff would continue to need psychological support and medication for an extended period of time.
32 On 20 July 2009, United Healthcare Group forwarded a medical history report for completion to Dr Chan. The report was completed by Dr C Ong, a practitioner at the same clinic as Dr Chan. The report confirmed that the plaintiff had suffered from a range of medical conditions including chronic major depression and ongoing right lateral epicondylitis, for which he had received physiotherapy. The report confirmed that he was receiving treatment from a psychologist and psychiatrist and was prescribed medication.
33 On 28 March 2011, Dr Alan Kosky, general practitioner, reported that the plaintiff had been a patient at the Nagambie Medical Centre since December 2008 but that the plaintiff first consulted him in January 2010. Dr Kosky said he was treating the plaintiff for depression and anxiety which dated back to intimidation and verbal abuse by his boss. Dr Kosky said the plaintiff had a depressed affect, anxious behaviour, picked his skin until it bled, ruminated and had difficulty in decision making, a lack of quality of life, and tiredness in keeping with his insomnia. He said the plaintiff’s depression and anxiety were in keeping with the stress he described in his workplace. He considered his long-term prognosis was poor given his symptoms had persisted since 2004.
34 Dr Kosky accepted that the plaintiff’s employment had been a significant contributing factor to his anxiety. He said the plaintiff was not fit for employment, and had no current capacity for employment. He said the plaintiff had a permanent impairment preventing him from work. The plaintiff’s treatment consisted of anti-depressants and anxiolytics as well as regular consultations with a psychiatrist and a mental health nurse.
35 On 5 July 2005, Mr Josh Hayter, physiotherapist, completed a physiotherapy treatment notification form for the Victorian WorkCover Authority. The form confirmed that the plaintiff was referred by Dr Jason Chan for pain in the right lateral elbow and upper limb dysfunction. The diagnosis was right lateral epicondylalgia and chronic pain. The proposed treatment plan was for a total number of eighteen services over six weeks.
36 Dr Stephen McConnell, psychiatrist, provided reports dated 11 February 2005, 16 January 2007 and 8 April 2011. The plaintiff was referred to Dr McConnell by his general practitioner for treatment of depression. Dr McConnell said that the plaintiff had a past history of depression and anxiety from which he fully recovered before commencing work at Newcomb. He had ceased medication. He had two years of complete health before he returned to employment in 2001.
37 Dr McConnell said the precipitating factors for his current episode related to his alleged conflict at work.
38 In 2005, Dr McConnell said the plaintiff was suffering a moderate to severe major depressive disorder with panic disorder, agoraphobia and social anxiety disorder. He said the plaintiff was completely incapacitated for current work. He was unsure whether he would achieve full recovery in the next 12 months, or return to work with the defendant. The plaintiff was being prescribed medication and was receiving counselling from a psychologist, Mr David Sullivan.
39 In 2007, Dr McConnell said that the plaintiff was suffering an enduring Adjustment Disorder, which manifested in a sense of demoralisation. Dr McConnell said that the plaintiff’s prognosis for work was relatively poor due to his developing chronic social anxiety and social withdrawal. He said the plaintiff needed to find new meaningful work, ideally outside of the home, as home-based employment would perpetuate his social avoidance.
40 The plaintiff was referred by his general practitioner to Mr David Sullivan, psychiatrist. Mr Sullivan provided reports dated 7 December 2006, March 2007 and January 2008. Mr Sullivan was provided with a detailed history of the plaintiff’s work, and was aware of his admission to hospital for psychiatric care in February or March 1999.
41 In January 2008, Mr Sullivan said the plaintiff suffered a severe and chronic major depressive disorder as a consequence of workplace harassment, intimidation and bullying. The plaintiff continued to suffer recurring suicidal ideation, and psychological treatment needed to be directed to management of the risk potential. He said he was totally incapacitated for any work for which he was qualified by virtue of his education, training, age and experience. He noted that the plaintiff had initiated and participated in a rehabilitation program and had participated in all rehabilitative activities arranged by Ayers Management Consultants. He said the plaintiff was not fit for his pre-injury duties, and there was no suitable employment for him. He said the plaintiff had no prospect of any real-world employment that would be reasonably offered to him by an employer in the marketplace.
42 In July 2010, Dr F Payne, psychiatrist, reported that he had seen the plaintiff, on referral from Dr Chan. Dr Payne diagnosed major depression with symptoms of low mood, low motivation, ruminations regarding the past, and occasional suicidal ideation. He was informed of the plaintiff’s psychiatric history. He said the plaintiff was taking anti-depressant medication, and said he was sensitive to stress, as was shown in May when he reported that he engaged a new solicitor, which in itself caused a worsening of his depression. Dr Payne said the workplace stress and the plaintiff’s perception of relationships between himself and his employers had contributed to the development of depression, or at a minimum an exacerbation of a pre-existing tendency to depression.
43 Dr Payne accepted that the plaintiff’s depression was consistent with the alleged trauma. He said the plaintiff’s long-term prognosis would be for some improvement, but the process of recovery would take considerable time. Dr Payne said that with continued treatment it was his view that the plaintiff would resume some sort of employment in the foreseeable future, but this was by no means definite. He said the plaintiff’s condition had not fully stabilised, and that he would require regular counselling, either by a psychologist or psychiatrist, and that he would be required to remain on anti-depressant medication. He said at the present time the plaintiff was not ready to return to work. Dr Payne said at times the plaintiff was almost totally incapacitated, but at other times he improved and he was able to function at a reasonable level.
44 In November 2010 and July 2011, the plaintiff was medically examined by Dr Michael Epstein, psychiatrist, at the request of his solicitor. Dr Epstein had a history of the plaintiff’s psychiatric condition. Dr Epstein said that the plaintiff had a major depressive disorder with panic attacks. He said his quality of life had diminished markedly, affecting his work capacity, his relationships, and his recreational enjoyment. His prognosis for improvement was poor. He said he was unfit to return to his pre injury duties or any suitable work.
45 On 1 September 2010, Associate Professor Maurice Wallin, consultant in occupational health safety rehabilitation and legal medicine, provided a report at the request of the plaintiff’s solicitor. Associate Professor Wallin obtained a history of the plaintiff’s injuries to his elbows. The plaintiff said that he could not, other than very minimally, move his right elbow and complained of pain if he extended the right arm forward. On examination of the left elbow, the plaintiff had very significant discomfort in the medial area of the elbow.
46 Associate Professor Wallin said that the plaintiff appeared to have a major ongoing depression and anxiety relating to work-stress claims, and that he had a loss of range of motion and ongoing symptoms in his right dominant shoulder-joint area, active disability in his right lateral elbow area, and disability in his left medial elbow area. He confirmed that the plaintiff had diminished strength in his arms, which was worse in his right arm.
47 Associate Professor Wallin said the plaintiff had a very active ongoing right upper-limb lateral epicondylitis (ongoing tennis elbow) and a left medial epicondylitis (golf elbow), which is secondary to his right elbow injury. He accepted that his right arm and shoulder disabilities were work related. He said the plaintiff had a poor prognosis given that six years had passed since the redevelopment of his right lateral epicondylitis, and nine years since he initially developed his right lateral epicondylitis. He said the injuries were organic in nature.
48 He said the plaintiff’s incapacity for employment was permanent. He said that the plaintiff was engaged in “a few light activities relating to the hiring of boats”. He accepted that the plaintiff had a long-term disability incorporating his right lateral epicondylitis, his right shoulder joint, loss of range of motion, and his significant diminished group strength in his right arm. He said the plaintiff’s condition had stabilised.
49 In November 2010 and June 2011, Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. It was his opinion that the plaintiff had bilateral epicondylitis. He said the plaintiff had a capacity for employment, particularly if he was not required to lift or undertake repeated activities with his arms. He said the plaintiff may need to use elbow braces during such activities. He said the incapacity will persist indefinitely. He said the plaintiff could undertake restricted activities on a full-time basis, although he should consider a graduated return to activity.
50 He said the likelihood of the plaintiff finding any form of employment other than purely sedentary work was small. He said the plaintiff’s ability to cope with any job would depend largely on his psychiatric state. He doubted whether the plaintiff could undertake any duties on a full-time basis, and that the duties that he could undertake would be purely sedentary and not involve repetitive use of his arms.
The Defendant’s Medical Evidence
51 On 6 December 2004, Dr John Douglas, psychiatrist, examined the plaintiff at the request of the defendant. Dr Douglas had a detailed history of the plaintiff’s previous psychiatric condition. Dr Douglas diagnosed a major depressive disorder, and said that the difficulties the plaintiff encountered at work were the stressors that precipitated his major depressive disorder. Dr Douglas said at that time the plaintiff did not have a capacity to return to work. He said because the plaintiff had made a reasonable recovery from his illness in 1999 he expected the plaintiff would recover once again. He said major depressive disorders are often a recurring disease, and it is likely that the plaintiff will become depressed again in the future.
52 In June 2005, the plaintiff was examined by Dr Steven Adlard, psychiatrist, at the request of the defendant’s insurer. Dr Adlard said the plaintiff presented as predominantly anxious, more than depressed, although he still had a depressed affect. He was aware the plaintiff had a long history of depressive illness from about 1995. He said the plaintiff had a pre-existing psychiatric illness prior to 2000 which was probably in remission. He diagnosed a major depressive disorder in partial remission. He said the history given suggested that the plaintiff had a major depressive relapse in approximately October 2004 which had partly responded to treatment. He said when examined the plaintiff presented as having mild to moderate depression on an ongoing basis. He did not expect the plaintiff would be able to work within the next three months.
53 In July 2007, the plaintiff was medically examined by Dr Timothy Entwisle, psychiatrist, at the request of the defendant’s insurer. He diagnosed a chronic adjustment disorder with anxiety, social avoidance, irritability and sleep disturbance. He accepted that the plaintiff’s condition limited his daily activities. He said he was socially avoidant, failed to have contact with some of his children, had no friends, and was reliant heavily upon his boarder. His condition had shown slow improvement following treatment over a number of years with a psychiatrist and psychologist. He said the plaintiff’s condition was stable. He assessed his impairment at 20 per cent.
54 The plaintiff was examined by Dr Dush Shan, who reported on 9 February and 21 August 2007, 16 September 2010, and 15 March 2011. Dr Shan diagnosed Chronic Major Depressive Disorder, which was likely to remain stable. He said that employment was a significant contributing factor and continued to be so. He said the plaintiff had no capacity for pre-injury duties, but would have a current work capacity. He considered the vocational assessment report which suggested the plaintiff could perform positions such as caretaker, farmhand or computer repairer. Dr Shan said that the plaintiff was capable of being a caretaker or a farmhand, as it was similar to the work he presently performed. He was uncertain whether the plaintiff would be reliable as a computer repairer. He said the plaintiff could work 20 hours per week after a slow start. He considered that the duration of the plaintiff’s incapacity is likely to be indefinite, given his psychiatric history and the lack of substantial response to medications.
55 In June 2007, Mr Peter Scott, surgeon, examined the plaintiff at the request of the defendant. It was Mr Scott’s opinion that the activities he performed at work would have resulted in the development of a right lateral traumatic epicondylitis from which a large measure of recovery had occurred, and probably a left lateral traumatic epicondylitis from which a complete recovery had occurred. He said the diagnosis is one of incompletely resolved lateral traumatic epicondylitis. He said there was a normal range of elbow movement, and there was no evidence of any degenerative change in the elbow.
56 In August 2011, the plaintiff was seen by Mr Michael Dooley, orthopaedic surgeon, at the request of the defendant’s insurers, in respect to the pain in both elbows. The plaintiff told Mr Dooley he was unable to use power tools. He had difficulty using saws, but could use a chainsaw in a limited way. He told Mr Dooley that a watch aggravates his elbow pain, and he used a computer, but said if he uses a mouse for more than half an hour continuously he has significant pain. He said he uses an e-cell stimulator for pain relief.
57 Mr Dooley said the constancy and intensity of the plaintiff’s ongoing pain are out of proportion to his condition. He was aware that the plaintiff was suffering from significant depression. It was Mr Dooley’s view that much of his current presentation relates to his psychological condition. He said from an orthopaedic surgeon viewpoint no specific treatment was required. He said that it was reasonable to expect that the plaintiff would note some intermittent elbow pain, but that his condition would not deteriorate. He accepted that the activities the plaintiff carried out during the course of his work could aggravate a tendency towards lateral epicondylitis, or tennis elbow.
58 He said the plaintiff presented himself as severely disabled. From an orthopaedic viewpoint, Mr Dooley believed that he would be capable of carrying out some light physical work. He said that the plaintiff’s lack of previous training would make it difficult for him to be gainfully employed in a modern clerical position. From a theoretical point of view he could carry out clerical-type work.
59 Mr Dooley said that the plaintiff would not have the capacity to work as a caretaker, farmhand, or caravan park caretaker, because these jobs would involve heavy physical activities at times. He thought he would have the capability to work as a computer repairer.
Vocational Assessments
60 In February 2006, IPAR Rehabilitation met with the plaintiff. At the time of assessment, the following employment options were identified:
• General clerical/administrative • Sales representative (internet/phone-based selling). 61 The vocational specialist noted that at the time the assessment was made, the plaintiff’s treating psychiatrist, Dr McConnell, said the plaintiff may be able to return to work, but not for the defendant. Dr McConnell believed that the plaintiff would need retraining prior to recommending employment. The vocational specialist recommended that the plaintiff commence a computer class at a local TAFE, as this would assist in increasing the amount of social contact the plaintiff currently has. Dr McConnell supported the process. The plaintiff completed a computer course but there was no evidence he sough employment.
62 In March 2011, Ms Bryant, occupational therapist at CoWork Pty Ltd, said that there were vacancies for caretakers in northern Victoria. She noted that the plaintiff had an interest and proficiency in computers. She thought there was evidence that he could use his skill in the future to become financially independent.
Video Surveillance
63 The plaintiff was surveilled for approximately 79 hour over 14 days: 7 days in 2008 and 7 days in 2011. The plaintiff was shown film of surveillance conducted on 16, 17, 19, 21, 27 and 28 January 2011. The plaintiff was surveilled for 31 hours and 15 minutes on those dates. Approximately 2 hours of film was shown to the Court. No film was shown of the 45 hours of surveillance in 2008 or the 2 hours and 45 minutes of surveillance conducted on 20 January 2011. I can infer that the film not shown would not have assisted the defendant.
64 I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when he is able to do more activities than on other days. I accept that the surveillance showed the plaintiff had a greater range of movement than he described. I note that the activities the plaintiff was performing were non repetitive and in an informal environment without supervision. However, the video says nothing about the psychiatric condition or the pain the plaintiff suffers.
Credit of the Plaintiff
65 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw.
66 The plaintiff gave his evidence in a detached manner and failed to convey to the Court how the injury affected his life. The plaintiff took time to answer questions. He made concessions.
67 He had difficulty answering questions in relation to information he gave to doctors in respect to his personal life in the late 1990s when he was being treated for depression. I consider that it was reasonable for the plaintiff to struggle to answer questions about events that occurred more than ten years ago and at a time when he was being treated for depression.
Analysis of the Evidence
68 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the defendant in respect to the injury to the left and right arm and the psychological behavioural disturbance. All of the medical witnesses accepted the injuries were work-related.
69 There were medical reports relied upon from a number of treating and medico-legal doctors, which refer to the history and treatment of the plaintiff’s mental condition since 2004. They are relevant in relation to the history of the plaintiff’s mental condition; however, a number of those doctors were not asked to review the plaintiff. Given the age of the reports, I am more influenced by the up to date medical reports of the plaintiff’s current general practitioner, Dr Kosky, the plaintiff’s treating psychiatrist, Dr Payne, the medico-legal reports of Dr Epstein and Dr Shan, both psychiatrists, Mr Grossbard, surgeon, Associate Professor Wallin, occupational health consultant, and Mr Dooley, surgeon.
70 The submission of the defendant was that the plaintiff has suffered a psychiatric condition for a very long time, going back to 1996 or 1997, and that any assessment I must make, I have to rely upon the reports from treaters and medico-legal doctors who have to rely upon what they are being told by the plaintiff. Counsel for the defendant submitted that in view of the video evidence of January 2011, I cannot rely upon the plaintiff’s history of his physical or emotional problems. That is, the history the plaintiff has given to the medical practitioners he has consulted is very different from the person depicted in the video surveillance. Accordingly, I should not accept his evidence without corroboration, which was not provided. It was submitted that the owner of the property where boats were hired, the owner of the canoes, his carer or his son could have given evidence.
71 I accept there is no lay evidence to corroborate what the plaintiff has said as to his level of activity. The plaintiff gave consistent accounts of his condition to all medical witnesses whom he saw. All witnesses were given details of is prior episode of depression and anxiety. He volunteered information in cross examination that showed his level of activity. That is, he built a vegetable garden with assistance and he repaired a down pipe and dug a channel. These are not the sort of admissions a plaintiff would make if his motivation was to deceive. Further, he has described to doctors the activities he undertakes at Nagambie Lakes. Accordingly I reject the submission of the defendant that I cannot rely upon the information the plaintiff has given to medical witnesses he has seen.
72 Dr Payne was cross-examined and he said that after treating the plaintiff for three years, he considered he was genuinely depressed. He did not believe the plaintiff engaged in deceit in regards to his psychiatric history or condition. Dr Payne said the plaintiff was encouraged to undertake activities that would enable him to socialise. I accept that the film showed the plaintiff doing that. The plaintiff’s evidence was that he ceased the activities with the canoes because he found it too stressful.
73 The plaintiff’s evidence was that he had recovered from the earlier episode of depression and anxiety. It was accepted by all psychiatrists and psychologists that the plaintiff had suffered a mental condition due to his employment with the defendant. All were aware of the plaintiff’s previous history. Dr McConnell said that the plaintiff had fully recovered from his first episode and ceased medication two years prior to starting work at Newcomb in 2001. The current medical views described his condition as a very significant depression or, at a minimum, an exacerbation of a pre-existing tendency to depression (Dr Payne), a major depressive disorder with panic attacks (Dr Epstein), a chronic major depressive disorder (Dr Shan). Most accepted that that the plaintiff’s condition was long term, given the fact that he had been suffering depression and anxiety since 2004.
74 In accordance with the principles in Grech v Orica Australia Pty Ltd & Anor,[8] provided the plaintiff establishes that the subject psychiatric condition in 2003/2004 materially contributed to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the current psychiatric condition and the consequences relied upon.
[8] [2006] VSCA 172
75 Views varied on his capacity for work. Dr Kosky said he was not fit for employment and he had no work capacity. Dr Epstein said he was unfit for pre-injury duties or indeed any other suitable work.
76 In July 2010, Dr Payne said that his long term prognosis was for some improvement, but recovery may take considerable time. He said with treatment the plaintiff would likely be able to resume some employment, but could not return to the pre-injury employment. He said the plaintiff’s incapacity would extend for six to twelve months and suggested any return to work should be staggered, commencing on twelve to twenty hours per week, progressively increasing as he improves.
77 Dr Shan said the plaintiff had no capacity for pre-injury work but had a current work capacity. He had read the vocational assessment report and said the plaintiff was capable of being a caretaker or farm hand, as those jobs were similar to his current position. He considered the plaintiff could work up to twenty hours per week. He accepted his incapacity would be indefinite due to his psychiatric history and his lack of substantial response to medication. He said he would not be suitable for a computer repairer because he would be unreliable.
78 I accept that the current position he has as caretaker could not be equated to “real world” employment. He derives no income from the position and can perform the jobs required of him in his own time. Those jobs are limited to riding on a ride-on mower and taking care of the boats. I accept that the activities that the plaintiff is involved in are social activities that try to help the plaintiff feel more comfortable, but would not fulfil the key performance indicators of any job description (this view was accepted by Associate Professor Wallin). The best evidence is that the plaintiff could work 20 hours per week.
The Statutory Test – Loss of Earning Capacity
79 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 80 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and (ii) “after injury earnings”. 81 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
82 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
83 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
84 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[9]
[9] (supra) at paragraph [70]
85 The plaintiff’s current earnings from personal exertion are nil.
86 Even if I were to accept that the plaintiff could work 20 hours per week, the plaintiff satisfies the arithmetical formula established by the Act.
87 The medical evidence did not suggest that rehabilitation was necessary or appropriate.
88 Accordingly, I am satisfied that the plaintiff has established that he has the requirements of paragraph (f).
89 I am satisfied that the plaintiff has no prospect of retraining and re-education that would enhance his earning capacity. Therefore I accept that the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
90 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
Findings
91 Having made these findings, applying Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[10] I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the defendant after October 1999.
[10] [2009] VSCA 170
- - -
0
4
0