Weldemichael v Id Sales and Repairs Pty Ltd
[2018] VCC 1022
•9 July, 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04213
| KIFLE WELDEMICHAEL | Plaintiff |
| v | |
| ID SALES & REPAIRS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 16 to 20 April, 12 and 13 June 2018 | |
DATE OF JUDGMENT: | 9 July, 2018 | |
CASE MAY BE CITED AS: | Weldemichael v ID Sales & Repairs Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1022 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION – SERIOUS INJURY APPLICATION
Catchwords: Whether right hip and groin injury satisfies part (a) of definition of “serious injury”; whether any injury under part (c) of definition of “serious injury”; whether compensable injury has caused permanent loss of earning capacity satisfying statutory requirements; self-represented plaintiff.
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235; Meadows v Lichmore [2013] VSCA 201
Judgment: For plaintiff, pain and suffering only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr N Dunstan | IDP Lawyers |
HER HONOUR:
1 Mr Kifle Weldemichael applies for leave to bring proceedings for damages against his former employer. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the definitions and requirements of s134AB of the Accident Compensation Act 1985 (“the Act”). Mr Weldemichael applies for leave in respect of both pain and suffering and loss of earning capacity damages.
Procedural background
2 Mr Weldemichael was represented by lawyers when he originally applied for a serious injury finding, when this proceeding was issued, and when its first hearing date was adjourned last year, but his lawyers were granted leave to cease to act in November 2017, following which he has represented himself.
3 When his lawyers ceased to act, the case was then referred to His Honour Judge Saccardo who held five directions hearings, during which the procedures of preparation and trial were explained, Mr Weldemichael was provided with a document from the Court outlining the manner in which such applications are conducted, the types of evidence required, and what needs to be proved by a plaintiff[1], and Mr Weldemichael was also encouraged to retain new lawyers to represent him. Judge Saccardo also made orders directing the defendant’s solicitors to prepare a folder of both sides’ medical reports, and to file submissions on preliminary legal issues they wished to raise. His Honour had required that the defendant’s trial counsel appear at the last directions hearing. There were two changes of counsel for the defendant after that.
[1] ‘Serious Injury Applications – seeking leave to commence a claim for damages under the provisions of the Accident Compensation Act’.
4 Mr Weldemichael had given notice that he wished to cross-examine five people whose reports were likely to be relied upon by the defendant[2]. Judge Saccardo had directed that Mr Weldemichael prepare a list of questions he wished to ask each of those people, and that it would be for the judge at the hearing to decide whether to permit such cross-examination. I considered the proposed questions, and gave my reasons for ruling initially that three such persons not be required to attend for cross-examination[3]. I later rules that a further doctor not be required to attend[4]. I did consider there were matters raised in proposed questions for a vocational assessor, Ms Willett, that could be relevant, but excluded some questions[5].
[2]Assoc Professor Doherty, Dr David Fish, Dr Gary Davison, Mr David Savio and Ms Robin Willett
[3]T 120-127
[4]T 357
[5]T 293-310
5 Although choosing to proceed without legal representation, Mr Weldemichael sought, and was granted, an adjournment before he started his final submissions, to try to obtain legal advice about those submissions. After a seven week adjournment[6], the case proceeded with him still representing himself, but he said that he had obtained legal advice.
[6]The duration was determined by my commencing leave a few days after the adjournment was sought.
6 Mr Weldemichael was born in Eritrea and his first language is Tigrinya. He understands and speaks English reasonably well, but not all legal, technical or medical expressions. These were explained to him as far as possible, although he would not always accept those explanations. Allowance has been made for where there may have been inadequate understanding of English.
7 Although Mr Weldemichael appears and claims to understand and speak English reasonably well, he speaks with a very heavy accent and can be very difficult to understand. He was given frequent opportunities to repeat or explain what he was saying, and overall I consider that I heard and understood him sufficiently to give fair consideration to his case.
8 Mr Weldemichael had not arranged an interpreter for the hearing, and did not request one, nor at any stage state that he believed he needed an interpreter to explain himself or his case. His first affidavit, prepared by his then solicitors, had been made through an interpreter, but not those he personally subsequently prepared. He appears to have always attended general practitioners without an interpreter. At some medico-legal examinations, or medical or vocational assessments[7], he refused an interpreter or to use an interpreter. Judge Saccardo had directed the defendant to provide a professional interpreter to attend all further medico-legal examinations it arranged.
[7]Eg: Assessment at Cedar Court for multi-disciplinary plan – November 2006 – Exhibit C; to Mr Hugh Weaver - June 2008; he told Mr Wilk in August 2006 that he was happy not to have an interpreter.
9 There having been no request for an interpreter by Mr Weldemichael, and as it was my impression that it was his accent and manner of speech rather than understanding of English that made him difficult to understand, I did not consider it necessary or appropriate to direct the defendant to arrange and pay for a professional interpreter for the hearing.
10 It is now almost 12 years since Mr Weldemichael last worked for the defendant, and over much of that time he has been in dispute over his Workcover entitlements. He considers that he has been unfairly treated at various stages by the Workcover Claims Agent and insurer, some of the doctors who have treated him or examined him for medico-legal assessments, and by lawyers who have acted for him at various times. He diverges into some of those grievances when asked about matters he associates with them. In this proceeding, I make no findings about any of those complaints, but I have taken into account that they have probably impacted his perceptions, memories about, as well as reactions to, some relevant events.
Basis of application
11 Mr Weldemichael’s application relies on both parts (a) and (c) of the definition of “serious injury”.
12 First, he relies on part of (a) of the definition, claiming to have suffered serious permanent impairment of a body function or functions. Originally the application listed a number of different body functions[8], but there were amended particulars of injury filed by his solicitors limiting those relied upon to his right hip and right groin.
[8]“Form A” – Exh H
13 At a Directions hearing before Judge Saccardo, Mr Weldemichael had indicated that he wished to rely upon all of the injuries originally claimed. This led to the defendant seeking to argue that he was excluded from relying on some of those, because of a decision in the Magistrates’ Court, basing its argument on “issue estoppel” and “res judicata”. Judge Saccardo had directed the defendant to provide written submissions on those issues ahead of the hearing. Those were filed, however, after explanation and discussion on the first morning of the hearing, Mr Weldemichael agreed[9] to limit his case under part (a) of the definition to his right hip and groin area, with what might be associated symptoms in his right abdomen and right buttock or lower back. When this occurred, the defendant confirmed that it was unnecessary for the Court to decide whether he was precluded from relying on other alleged injuries by reason of issue estoppel or res judicata. I indicated that it was my initial view that res judicata was most unlikely to be successful in circumstances where a different statutory entitlement and therefore different “cause of action” was the basis of this proceeding. However, ultimately neither of those legal defences was considered or decided.
[9]T 25, l 17 – T26, l 14
14 In order to satisfy part (a) of the definition, the plaintiff must satisfy the Court, on the balance of probabilities, that the consequences of the injury to him, for the foreseeable future, when compared with the range of other possible impairments of body function, can fairly be described as “more than significant or marked” and as “at least very considerable”.[10]
[10]s134AB(38)(b) and (c)
15 Under part (c) of the definition, the plaintiff must satisfy the Court on the balance of probabilities that he has suffered severe permanent mental or behavioural disturbance or disorder. To satisfy this part of the definition, he must satisfy the Court that the consequences to him of this condition, for the foreseeable future, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, can fairly be described as being “more than serious, to the extent of being severe”.[11]
[11]s134AB(38)(b) and (d)
16 Further, to obtain leave to claim damages in respect of loss of earning capacity for either his right hip and groin injury, or any psychological disorder, the plaintiff must satisfy the Court that he has a permanent loss of earning capacity of at least 40 per cent, measured as set out in the statutory formula in s134AB(38)(f) of the Act,[12] taking into account his capacity for suitable employment after reasonable attempts to participate in rehabilitation or retraining.[13]
[12]s134AB(38)(e)
[13]s134AB(38)(g)
17 The defendant no longer disputes that the plaintiff did suffer an injury to his right hip and groin area to which his work duties materially contributed. The main issues in dispute are as follows.
(i) The extent of any long-term symptoms from such hip and groin injury, and whether they meet the test of causing consequences that can fairly be described as “at least very considerable”.
(ii) As the plaintiff claims to suffer from several other injuries or medical conditions (both knees, right shoulder, back and left hip and groin), the onus is on him to prove that consequences attributable to the right hip and groin injury, as opposed to the other injuries, are serious enough to satisfy the test.
(iii) Whether any current incapacity for suitable employment –
(A) is attributable to the hip and groin injury;
(B) causes a current loss of at least 40% of pre-injury gross earning capacity;
(C) would cause a current loss of at least 40% of pre-injury earning capacity after reasonable attempts at retraining or rehabilitation;
(D) is likely to be permanent (last for the foreseeable future).
( iv) Whether the plaintiff has suffered a psychological injury that meets the definition under part (c) of the definition of “serious injury”, either as to pain and suffering or as to loss of earning capacity.
Evidence
18 The evidence consisted of the documents set out in the attached schedule, and the oral evidence of the plaintiff and of Ms Willett, a vocational assessor.
19 As Mr Weldemichael represented himself, I allowed him to supplement some of the tendered documentation. I also took into account that notwithstanding explanations to him of the difference between giving evidence and making submissions, there was inevitably some blurring of the distinction, and I have taken some information which he gave through submissions as evidence. As a distinct change in circumstances had occurred during the adjournment before his final submissions, I had him confirm on affirmation those matters, specifically that his general practitioner’s clinic had closed and he needed to find a new ongoing general practitioner.
20 As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is important, because not only the Court, but also doctors whose opinions are in evidence, are reliant on the plaintiff’s own account of the history of occurrence, timing, extent and duration of symptoms, and their impact on the plaintiff’s life.
21 The defendant submits that much of the plaintiff’s evidence about the extent and continuation of his symptoms is unreliable, and he has sought to reconstruct the past and blame more on his employment duties than objectively should be found to exist.
22 It was not my impression that Mr Weldemichael was deliberately lying about any of the matters covered in his evidence. However, I have had considerable doubt about the reliability of some of what he says. I find that there has been much reconstruction in his thinking about the timing and extent of his symptoms and their impact on his life. It is now almost 12 years since he suffered the injuries the subject of this application, and since he ceased work. The passage of time, intervening events and ongoing disputes in relation to his injuries, payment for medical treatment, and with the whole “WorkCover system” have, in my view, interfered with the reliability of his recall of relevant details over the intervening period. He has dwelt for a long time on grievances against many people in the Workcover system, including attributing some of their actions or attitudes towards him as based on racial prejudice. I do not find that he was deliberately exaggerating, but his focus on his grievances has in my view impacted the reliability of his description of the extent of pain and interference with daily living activities. I have therefore looked for other evidence to evaluate the extent of his symptoms and their impact on his life.
23 The only other witness required to attend for cross-examination was Ms Willett, who had been partly responsible for reports from Recovre.[14] I had disallowed some of Mr Weldemichael’s intended questions of Ms Willett, but did direct that the defendant make her available for cross-examination as had been sought by Mr Weldemichael.
[14]Exhibit 8 – 19/6/17 and 16/11/17
24 It was my impression that Ms Willett was not deliberately lying in any of her evidence. However, from what emerged in her evidence, I find aspects of the Recovre report unsatisfactory, and I was not convinced by some of her explanations that the conclusions were reliable. I shall discuss those matters specifically when dealing with the capacity and suitability of the plaintiff for alternative employment.
Plaintiff’s background and pre-injury circumstances
25 Mr Weldemichael is now aged 59 and will turn 60 this month. He now lives alone, his marriage having ended some years ago, and his children live with their mother.
26 He was born in Eritrea where he completed 12 years of school, and started training and work as a motor mechanic. In about 1980, he left Eritrea, and was subsequently accepted into Germany as an asylum seeker. There he did further motor mechanic training and achieved qualifications which were subsequently recognised when he moved to Australia. His particular qualifications were in relation to heavy vehicles, and he worked for several years in companies involved in the motor vehicle industry in Germany.
27 In 1991 he first travelled to Australia, but returned to Germany. In 1994 he obtained a residency visa for Australia, but over the next four years spent a large amount of time back in Germany, working for Mercedes as a truck mechanic, and for Nissan as a motor mechanic. From about 1998 he seems to have lived permanently in Australia, working first as a factory hand for a few months, and then in truck assembly.
28 In September 2002, he commenced work with the defendant as a trailer mechanic, carrying out mechanical repairs and servicing of semitrailers. His duties involved considerable physical exertion and required him to work under trailers, lift heavy items, use large manual jacks to elevate the trailers from their ground position, pushing and pulling them into position. Some of his duties involved kneeling and working in that position. He worked long hours – he says usually 90 per week for the first couple of years and continued to do many hours of overtime and work a six-day week.
29 By July 2006, Mr Weldemichael was married and had a young child. Another child was born subsequently. I accept that he led an active life, not only working long hours to provide for his family, but also walking for general exercise, and he enjoyed swimming and cycling. He looked forward to being able to play with his children as they grew old enough. He enjoyed attending functions in his community, where dancing was part of celebrations.
30 He had sustained some injuries at work in the past, but had made no WorkCover claims with the defendant, and had recovered and continued to work including extended hours for which he was paid overtime.
31 I find that Mr Weldemichael found his work satisfying, in particular from being able to work to support his family.
Occurrence of Injury
32 The plaintiff’s duties for the defendant included many strenuous tasks over long working hours, including manually jacking up and manoeuvring of heavy vehicle trailers and equipment. During 2015, he gradually developed pain in his left groin and abdominal area, for which he consulted his general practitioner, Dr Ilahee. There was no clear diagnosis, despite blood tests to exclude what he most feared, and he kept working. In September 2015 he consulted Dr Ilahee about similar pain developing on the right side. He was placed on alternative duties for a short time during 2005 but then returned to his full duties. In March 2006 he attended his doctor due to further pain in his right abdominal, groin and hip area, and Dr Ilahee thought it associated with his strenuous work duties. He took three days’ sick leave but did not submit a Workcover claim.
33 In mid-July 2006 he returned to Dr Ilahee, with worsening pain in his right groin, hip and lower abdomen. As the pain persisted, on 25 July Dr Ilahee recommended time off work to rest and recover, and certified him unfit to work until 2 August due to “right abdomen to rt groin pain from heavy work. Muscular injury to abdominal & groin muscles”.
34 On 31 July 2006 ownership of the business that employed the plaintiff changed. By letter dated 27 July 2006 the new owner, Scotts Refrigerated Freightways, stated that there would not be a position available for him effective 1 August, 2006. No reason was given.
35 Mr Weldemichael has continued to complain of pain and discomfort in his right hip and groin, reaching into his right buttock and lower back, and lower abdomen, ever since.
Medical treatment and evidence
Treating doctors
36 Over the near 12 years since the subject injury, Mr Weldemichael has been under the care of three successive general practitioners or their clinics.
37 From about 2011 his usual GP was Dr Fatema Ilahee. Her reports[15] outlined the history of his presentations for, first, left sided abdominal to groin pain in February 2005, then in September 2005 he presented with a history of right groin to right upper thigh pain for three to four months. He next presented with that area of pain in March 2006 and a detailed work history revealed that it could be work-related. No hernia was found, and muscular injury was diagnosed, and Mr Weldemichael took three days of sick leave and simple analgesia for that pain. On 17 July 2006, he attended complaining of right groin to right thigh pain for three days, especially with certain work activities including “jacking”. There was no visible hernia and Dr Ilahee found it difficult to explain the nature of the illness, but obtained an ultrasound of the painful area and a blood test due to Mr Weldemichael suspecting cancer. Nothing abnormal was detected. On 25 July 2006, the results of those tests were explained to him, and Dr Ilahee explained that the nature of his job was directly related to his pain and he needed time off work, and later light duties.
[15]Exhibits L &14. There were no clinical records of Dr Ilahee tendered.
38 Dr Ilahee reports that she had to speak directly to his manager as there had been some misunderstanding. She reports that the manager told her that Mr Weldemichael should change his job. According to Dr Ilahee, Mr Weldemichael was confused about the whole WorkCover issue especially after a negative conversation with the manager. On 26 July he was given a WorkCover certificate as unfit for any duties until 2 August, and his treatment was to be rest and non-steroidal anti-inflammatories. The following week on review he reported persisting pain, getting worse with movement, and he had developed side effects from the anti-inflammatory Mobic so further rest and Panadol was recommended after stopping Mobic. A month later he had only relatively low improvement, and was still experiencing pain when pushing the accelerator or brake of the car, sitting, standing or walking, and physiotherapy was recommended.
39 It was Dr Ilahee’s view after five weeks had passed with minimal change to his pain, that alternative work in the nature of a supervisory job with no lifting or heavy use of abdominal or groin muscle, or sedentary type office work, would be suitable. Unfortunately by then he had no employment to which to return[16], so there was no ability to be eased back into modified duties.
[16]Exhibit AF
40 In November 2006 he was referred to Cedar Court to be assessed for possible rehabilitation through a multi-disciplinary program[17]. However, that assessment was not completed, as he had declined an interpreter and the examiner noted immediate language and possibly cultural difficulty in communication, and Mr Weldemichael objected to parts of the assessment including functional testing as he expected only direct treatment of his injury, and refused to discuss matters he did not consider directly related to his injury. To the extent that the assessment was conducted, a diagnosis was made of “strain to right conjoint tendon” and “right hip strain, possible arthritis”, noted as consistent with the view of Dr Wilk. On examination he had moderate reduction of internal and external rotation I the right hip. He was described as appearing to be “pain focussed”. Immediate referral for physiotherapy was recommended.
[17]Exhibit C
41 In November 2006, Dr Ilahee referred Mr Weldemichael to Associate Professor Littlejohn, Rheumatologist, for suggestions on treatment, but he could not make a clear diagnosis nor offer any suggestions for treatment.
42 From July 2007, the plaintiff started to complain to Dr Ilahee of knee pain, and when plain x-rays showed no cause, she referred him in respect of both knees to orthopaedic surgeon, Mr Robin. By September 2007 Mr Robin recommended arthroscopy of each knee, starting with the right, but liability was refused by the Workcover insurer.
43 After the knee pain emerged, Dr Ilahee continued to certify the plaintiff as suffering a chronic soft tissue injury in his lower abdomen to groin, together with low back pain and bilateral knee pain. His treatment was hydrotherapy, analgesia and referral to Mr Robin, and she continued to certify him as fit for modified duties with restrictions on all lifting, pulling and pushing, and she wrote that a supervisory or sedentary job could be done. In February 2008, she added restrictions of bending and prolonged standing/sitting, and the restriction on lifting was specified to be of more than 2 kilograms. From 20 May 2008, she certified him unfit for any duties, and on 24 June 2008, stated that he was on a waiting list for right knee arthroscopy.
44 In reporting to the defendant’s WorkCover agent on 23 February 2008, Dr Ilahee stated that an MRI scan of his right hip of 20 September 2007 had revealed an acetabular labral tear and chondral defects which she considered could represent trauma or degeneration or both. At that stage he was said still to need arthroscopy of his knees. She described his conditions as chronic, and that he was not fit for pre-injury work, but had some work capacity with restrictions. His ongoing treatment was analgesia for pain, hydrotherapy, and he needed arthroscopy on both knees.
45 Dr Ilahee’s last certificate was for the period 27 July to 26 August 2008, and certified him as unfit for any duties without reference to imminent knee surgery.
46 Mr Weldemichael ceased to attend Dr Ilahee in about August 2008. He expresses dissatisfaction with her both because she did not recommend ceasing his heavy work in 2005, which might have prevented the pain worsening in his right hip and groin, and because he was under the impression that she was being pressured by the WorkCover agent to change her certificates.
47 He then came under the care of Dr Charles Castle[18], an occupational physician, but treating the plaintiff as his general practitioner. Although there is a description about the plaintiff’s right knee condition, Mr Weldemichael also attended for back pain and his right hip, which on examination was not tender but had a restricted range of movement. In December 2008, Dr Castle reported that in October 2008 Mr Weldemichael had undergone an arthroscopy on his right knee as a public patient at the Austin Hospital, but said his knee was worse since operation. Dr Castle also reports being told by Mr Weldemichael that he had been told that his right knee was worse because he has a problem with his right hip which needed surgery. Dr Castle’s diagnosis was right knee pain due to osteoarthritis of the right hip and knee, with his knee pain being also contributed to by his right hip pain. He also had back pain of uncertain origin. Dr Castle gave the opinion that the plaintiff’s employment was a significant contributing factor to the development of his condition, and while his employment did not cause his osteoarthritis, it made symptomatic his existing condition because of the heavy work he did which involved frequent kneeling and pushing of heavy objects. Dr Castle considered that Mr Weldemichael had no capacity for his pre-injury duties, because of the severity of his pain, and as at the date of that report was currently unable to work because of the severity of his right knee and hip pain and his back was also a contributing factor. He considered Mr Weldemichael needed physiotherapy on his back, right hip and knee, and analgesics. He also said that Mr Weldemichael needed surgery on his right hip, probably a right hip replacement, after which he would be fit for a graduated return to work on duties where he could sit or stand as needed, take rest breaks as required, and avoid lifting any more than a maximum of 5 kilograms.
[18]Exhibit K
48 Two years later, in September 2010, Dr Castle reported that Mr Weldemichael was suffering from chronic soft tissue injury to the groin, right acetabular and labral tearing of the right hip, lower back pain and bilateral knee pain[19]. He had been seen at St Vincent’s Hospital department of surgery from where he was referred to the Barbara Walker Centre, for physiotherapy and hydrotherapy, and it had been recommended he have a particular type of shoe to reduce the impact of walking on his knees, hip and back. The diagnosis included tearing of right acetabulum and right hip joint labrum which Dr Castle believed had developed as a result of the same process of extended periods of pushing, pulling and kneeling as part of his employment as a trailer mechanic. He considered Mr Weldemichael had no capacity for employment, neither for his pre-injury duties nor any suitable duties. This was said to be because he has great difficulty walking with both knees, has constant pain in his groin and has pain in his right hip associated with initial movement or bending. In addition, he has persistent lower back pain, his English is poor, and he has only ever worked as manual worker. He was unable to do the work for which he initially trained, as a motor mechanic, and would continue to be unable to do that work for the foreseeable future because of the pain in his left knee, the unstable restricted movement of both knees, but particularly the left, and he was unaware of any work restrictions which would enable Mr Weldemichael to return to work. That was likely to continue indefinitely. He thought Mr Weldemichael needed continuing management by the Barbara Walker Pain Centre as he had severe problems with pain and these needed to be dealt with.[20]
[19]There was no mention at that stage of a right shoulder problem.
[20]Exhibit K – 7 December 2008
49 In an updated report of 15 March 2012, Dr Castle said that referral to the Barbara Walker Pain Clinic did not help. He had waited a long period on the waiting list, for assessment and treatment by that unit, and had started the pain management program at St Vincent’s Hospital in June 2010. He had been started on a disability support benefit on 14 January 2010.
50 Dr Castle does not identify when the right shoulder problems developed, but states that Mr Weldemichael had had an arthroscopy of his right shoulder which he attributed to the fact that he had to use a heavy jack to lift trucks each day. That condition was treated with injections of steroid at the Epworth Hospital. On examination on 29 November 2010, his right shoulder was tender with a restricted range of movement but there was normal muscle tone and power with no wasting. Dr Castle points out that at the same time, Gallagher Bassett rang him and requested he change his certificates which he refused to do. He said that since then Mr Weldemichael has continued to have pain in his neck, lower back, both knees and right shoulder.
51 The situation as at Dr Castle’s last report, dated 15 March 2012, was that Mr Weldemichael had pain in his right lower back, pain and stiffness in his right hip which was markedly tender on examination, and pain with hip flexion. He was tender over L4/5 and L5/S1 intervertebral segments, had bilateral knee pain, worse after prolonged standing or walking and continued to have recurrent pain in both groins. His condition had not worsened but had not improved either. Dr Castle considered he had no capacity for employment of any kind.
52 When Dr Castle retired, Dr Peter Andrianakis who had already seen Mr Weldemichael on occasions, took over as his regular general practitioner and continued as such up to the time of the hearing in April[21]. However, when the matter resumed for the plaintiff’s final submissions in mid-June, Mr Weldemichael disclosed that when he went to Dr Andrianakis for his two-monthly attendance in May of this year, he found Dr Andrianakis’s clinic closed and a sign on the door to attend elsewhere. He had attended another doctor, Dr Hau, once, but decided that that doctor’s clinic was too far from his home and he would be looking for another alternative doctor shortly.[22]
[21]Indeed, as the defendant had served notice that it required him to attend for cross-examination, kand was still considering whether to proceed with that course during the first few days of hearing, Mr Weldemichael told me and I believe that Dr Andrianakis was on call to attend court at a suitable time if still required. After two days the defendant indicated that he would not be required.
[22]This information only emerged during the plaintiff’s final submissions. I gave him leave to re-enter the witness box to confirm those matters in his formal evidence, which he did.
53 In a succession of reports[23] Dr Andrianakis states that the plaintiff saw him for management of injuries to his lower back, right hip, groin and both knees, commencing in the setting of the worker’s occupational health clinic until its closure in September 2012 and then at Prime Medical. In his report of November 2015 to the plaintiff’s then solicitors, he noted that the plaintiff also suffers with injury to his right shoulder.
[23]Exhibit J – commencing
54 Having taken over the plaintiff’s management several years after the plaintiff’s cessation of work and onset of injuries, I note that Dr Andrianakis has some errors in his history, such as that Mr Weldemichael continued to work until early 2007 when he injured his right shoulder and knees, by which stage the groin and hip pains were well entrenched. I do not regard those errors as of significance to the credibility of either Dr Andrianakis or Mr Weldemichael personally, but note that as with other medical reports, the doctor’s opinion must be read in light of the information on which the doctor based it.
55 Dr Andrianakis reports that the pain in the right hip and groin affects the plaintiff significantly on a daily basis, and he struggles to walk, stand or sit for prolonged periods. The 2007 MRI scan of the right hip showing a tear of the mid and posterior aspect of the superior labrum with adjacent full thickness chondral loss of the acetabular and femoral head chondral surfaces, indicating femora acetabular impingement, was regarded as the basis for this pain. It was noted that Mr Weldemichael also describes severe right shoulder pains and impingement and an ultrasound confirmed a subacromial bursitis, but that despite three cortisone injections to the shoulder, he has never been pain free since. Ongoing management has been with analgesics, topical heat rubs and rest, and oral anti-inflammatory Naprosyn. There had also been regular physiotherapy. These treatments were to manage his back pain, hip pain and shoulder pain. Dr Andrianakis noted that there had been ongoing confusion and disputes about funding for rehabilitation with his insurer.
56 In December 2014, Mr Weldemichael was referred to Mr Campbell, orthopaedic hip specialist, for opinion and management of his right groin and hip pains and knee pains. A review MRI scan of the right hip reported lateral cartilage thinning, and Mr Campbell referred Mr Weldemichael for a cortisone injection into the right hip but that unfortunately caused more pain and discomfort and Mr Campbell felt that arthroscopy was also likely to cause more problems than it would solve. Mr Campbell had recommended Mr Weldemichael continue current rehabilitation, with specialist pain management with consideration of open hip surgery when the occasion arose. Dr Andrainakis knew Mr Weldemichael was not keen on stronger analgesics as he felt they caused drowsiness and changed his bowels, and did not see the purpose since the analgesics could not fix the problem and he was not working so he could rest when the pains were severe.
57 An update ultrasound of his right groin in July 2015 was reported as normal. An x‑ray of his right hip in July 2015 reported “right cox profunda with moderate central space narrowing is noted in keeping with central pole degenerative change.” Mr Weldemichael continued to struggle with right groin, hip and knee pains causing him to limp and was unable to sit, stand or walk for prolonged periods. He was also struggling with lower back pains and right shoulder pains and stiffness, and in Dr Andrianakis’s view was that he remained quite incapacitated for work because of his injuries. Dr Andrianakis said he was likely to need surgical management to help manage his pains and the prognosis for recovering and return to pre-injury work was very poor. The prognosis for future employment or retraining was likewise very poor.
58 In a report of 26 December 2015, Dr Andrianakis said the prognosis for improvement of the right hip pain remains very poor because the nature of the injury is likely to cause further degenerative changes in the hip which will cause further hip pains and restriction in mobility. Surgery was not an option at that stage, but he may well need a total hip replacement in the future as a result of this injury, and from the history given to him, he considered work had been the major contributing factor to this injury without any known hereditary or predisposing risk factors. The pain in the right groin, he believed, was caused by soft tissue injury to that region caused by the heavy strain while jacking or it could be referred pains from his hip.
59 Dr Andrianakis stated that importantly Mr Weldemichael has also complained of lower back pains and stiffness which had not been accepted in his claim but, given the nature of his work and the injury to his right hip, “it is not unacceptable” that the lower back could well have been injured by the same process. By that, I understand Dr Andrianakis to consider that the low back pain was from a separate injury that could have been caused by the same work duties, rather than that the lower back pain was a symptom of the hip injury itself.
60 In his last report dated March 2018, Dr Andrianakis said the plaintiff complains of right hip pains and discomfort made worse when standing, sitting and walking, and there is a pronounced limp caused by his hip injury as well as the groin injury as well as pains in his right knee. He said Mr Weldemichael also complains of ongoing pains and stiffness in his right shoulder and lower back. He was attending for review and management of pains in his right hip, groin, lower back and both knees (especially the right) and his mobility remained affected and he could not stand, sit or walk for prolonged periods. He believed the right shoulder and right-sided hip, groin and knee pains were what prevented the plaintiff from a return to work. He was managed with Panamax, Naprosyn and Deep Heat topical rubs, with his condition remaining stable but not improving. He also had home exercises and was no longer attending physiotherapy or hydrotherapy as he could not afford it and his insurer was no longer funding it despite requests for hydrotherapy to be funded.
61 Dr Andrianakis stated that Mr Weldemichael had concerns that independent medical examiners continued trying to suggest that he has depression and anxiety which was causing his disability. He noted that Mr Weldemichael makes strong comment that he remains mentally well and it is the physical injuries that prevent him from working. In WorkCover certificates, Dr Andrianakis described the injuries as a chronic soft tissue injury of the groin, right acetabular and labral tearing right hip. Low back pain and bilateral knee pain. And on the form of certificate containing a capacity assessment, Dr Andrianakis continued to tick boxes that he “can” (rather than “with modifications”) sit, stand/walk, bend, squat, kneel; cannot reach above shoulder height, use injured arm/hand or lift; and that his mental health functions were “not affected” – specifically attention/concentration, memory and judgment, with no other function or considerations noted.
62 In September 2007, Dr Ilahee referred Mr Weldemichael to Mr Joseph Robin, orthopaedic surgeon, regarding his knees. Mr Robin found clinical evidence highly suggestive of cartilage damage to both knees, which he considered related to the nature of the plaintiff’s work. Mr Robin recommended arthroscopy of both knees, planning to do the right one first, but authorisation for that surgery was refused by the defendant’s insurer. In December 2007 Mr Robin referred Mr Weldemichael to the orthopaedic outpatient department at the Austin Hospital[24], noting that he had bilateral chondromalacia patellae which would benefit from arthroscopic treatment.
[24]Mr Weldemichael says he lost confidence in Mr Robin and did not want him to do the surgery.
63 Mr Robin also ordered an MRI of the plaintiff’s right hip due to his complaints of increasing bilateral groin pain, greater on the right. The MRI of the right hip was reported[25] as showing “A tear through the mid and posterior aspect of the superior labrum… and adjacent full thickness chondral loss of the femoral head and neck measuring 3mm in maximal width. Minimal perilabral ganglion cyst formation is seen. Small but prominent marrow stress response in the adjacent lateral acetabulum….” and “These findings … are consistent with manifestations of femora acetablutar impingement.”
[25]Exhibit P – 20 September 2007
64 Mr Robin noted that as well as the knee conditions, the patient also had osteoarthritic changes in his right hip, relatively early, due to chondral and labral defects, and would eventually need hip surgery but would need conservative management initially.
65 Dr Ilahee had referred Mr Weldemichael to Associate Professor Geoffrey Littlejohn, rheumatologist, in January 2007 for his complaints of bilateral groin and pubic region pain and discomfort. The pain was said to be aggravated by activity, bending, stretching and the like, and was prominent in the right buttock area with pain in both groin regions radiating into the thigh. At that stage, Mr Weldemichael had no troubles in the neck or shoulders or upper limbs. On examination, there was reasonably good movement of this back. The right hip seemed stiff, associated with discomfort and guarding, and the left hip moved normally. Dr Littlejohn arranged for a bone scan to clarify whether there was any inflammatory or hip disease, or degenerative process in the area of complaint, but the results came back as normal. He felt unable to offer further suggestions for management of the problem.
66 He reviewed Mr Weldemichael on 30 March 2007, at which time there was complaint of ongoing pain in bilateral groin and, to a lesser extent, lumbar-related areas, but Mr Weldemichael had now developed some right sided shoulder girdle aching of a similar quality. Dr Littlejohn could not find any change in range of motion or neurological features to explain the problem. He did not recommend further review as he felt he could not offer any further suggestions in relation to treatment.
67 Mr Weldemichael was also referred to Mr Michael Johnson, orthopaedic surgeon, for opinion in respect of back pain. Mr Johnson ordered an MRI of the lumbar spine which revealed multilevel degenerative change from L3-4 down to L5-S1 levels, but no surgical intervention was felt to be necessary. Mr Johnson referred Mr Weldemichael to Dr Stephen de Graaff, Medical Director of Pain Services at Epworth Rehabilitation. This was for Mr Weldemichael to be assessed for consideration of musculoskeletal rehabilitation and pain management, for intermittent thoracic and lumbar pain, with radiation to the thigh, which had settled a little, but there was still some radiation to the groin bilaterally. It was said to impact markedly on his walking, and he had decreased sitting and standing tolerances, eased with lying down. His other medical history was of osteoarthritis of both knees and a labral tear in the right hip. He was, at that stage, said to be on no medication. A recent
68 Dr de Graaff found Mr Weldemichael compliant throughout with significant active range of motion in his lumbar spine. Dr de Graaff found Mr Weldemichael had ongoing effects of his heavy manual duties leading to degenerative lumbar spine. He was markedly deconditioned. Previous conservative interventions had not had a major impact, but he had not had formal rehabilitation and Dr de Graaff considered he would benefit from a formal multidisciplinary rehabilitation program incorporating both functional restoration and pain management strategies and referred him to the Epworth Outpatient Program for that to occur. However, on review three months later, Mr Weldemichael stated that he had been accepted for a multidisciplinary assessment at Epworth Richmond, but refused to undergo the assessment when advised that it was similar to that undertaken at Epworth Dandenong (formerly Cedar Court).
69 Mr Ben Campbell, orthopaedic surgeon and specialist in hip and knees, saw the plaintiff on referral from Dr Andrianakis in December 2014. He understood that Mr Weldemichael had been working at repetitive manual work using jacks in his job as a trailer mechanic, and had pain in his right groin which radiated around laterally to the region of the iliac crest and then to the sacroiliac region. He also had low back pain. He had a similar area of discomfort on the left side but not nearly as bad. He said the pain was there when walking, sitting and when standing with no particular relation to activity. He also had pain in his right knee which was worse with walking and with stairs. An arthroscopy on the right knee had not made much improvement. The plaintiff had had a right groin injection, presumably into the hip, which had not made any improvement.
70 On examination his hip was uncomfortable in all ranges of motion, both sitting and lying, consistent with intra-articular pathology. There was no specific pain or catching with any particular movement or provocative test. He had symptoms in the right knee. Imaging from 2006 and 2007 showed problems in the right knee, and a labral tear and areas of full thickness cartilage loss in the right hip. Mr Campbell organised an MRI scan as he considered things may have changed in the intervening years. He also organised a repeat hip injection which was to be mainly diagnostic, rather than therapeutic, and if it did not get significant immediate relief with local anaesthetic in the hip, then he would be reluctant to recommend surgery to address the intra-articular problems. A letter to Dr Andrianakis in February 2015, after the scans, reported that the right knee was relatively benign. The right hip MRI scan showed significant lateral cartilage thinning which could be causing his hip problems. However, injection of local anaesthetic into the hip joint made the pain worse and there was no relief at all over the subsequent days with the cortico steroid suggesting that he would have no relief with hip arthroscopy or even replacement at that stage. Mr Campbell recommended continued strengthening and supported hydrotherapy for the right hip, but said there was nothing amenable to injection or surgery and it may be time to get a chronic pain specialist involved. Mr Weldemichael told him he was not sure if he had had any involvement from them in the past. Mr Campbell considered that Mr Weldemichael was likely to have some ongoing pain and he now needed to work on pain management rather than cure.
Medico-legal assessments
71 Dr Victor Wilk, musculo-skeletal physician, examined Mr Weldemichael for the defendant’s claims agent in August 2006[26]. He took a history of Mr Weldemichael’s having onset of symptoms of pain the right groin over about 18 months, from his heavy physical work duties, and with no treatment he kept working hoping it would go away, but over time it slowly worsened. He had been put off work by his GP on 25 July, some four weeks before this examination. He complained of pain in the groin area most of the time on the right side, less on the left. His only treatment had been prescribed Mobic tablets but did not feel well from them, eand was then only taking Panadol. On examination he walked normally, had a full range of movement of the lower back, but although right hip movements were full range, there was some pain in the right groin on all end ranges of movement, and pain on contraction of lower abdominal muscles. Dr Wilk considered the most likely diagnosis was hip adductor muscle and conjoint tendon strain. He believed the strenuous nature of the work had produced a muscle strain in the right groin which had come on gradually and was still materially contributing to incapacity for work. The plaintiff was unfit for heavy manual types of work but was fit for supervisory type work or light duties without heavy pushing or pulling. Dr Wilk considered his current treatment inadequate, that he would deteriorate without physical therapy, and recommended three months of physical therapy and if that did not succeed he might need needle therapy.
[26]Exhibit X
72 Mr Robin Williams, consultant orthopaedic surgeon, provided a report to the defendant’s claims agent in March 2007[27]. At that time, Mr Weldemichael described having pain in the right groin, right loin and left loin, and discomfort across his lower abdomen with a sense of pressure in the lower abdomen which interfered with his sleep. He said that the more he walked, the more the right groin and lower back hurt, and when that happened he limped and dragged his leg. He also had discomfort sitting. Mr Williams reported that Mr Weldemichael mentioned that he felt he probably needed some retraining to find a position where he did not have to perform powerful movements including lifting and pushing. On physical examination, he had an even gait, a good range of movements in the lumbar region and both hips, but did complain as his hips were flexed and rotated and he felt pain in the groin, the right side more painful than the left. There were no abnormalities shown in the investigations done to that stage.
[27]Exhibit 11
73 Mr Williams’ opinion was that Mr Weldemichael most likely suffered muscular strain in the right inguinal region during the course of his work, which condition had not resolved and was still contributing to incapacity for work. Mr Williams could not find any more serious pathology and found it difficult to explain the persisting symptoms, but considered that anxiety and concern were playing a significant part in the continuing sense of illness. He said Mr Weldemichael was not fit to work as a mechanic at that stage, possibly could recover sufficiently to do so in the future, but required a change of work to something lighter, and it would be difficult to define the actual limits.
74 Dr Dominic Yong, specialist occupational physician, provided two assessments for the defendant, the first in August 2007 and the second in February 2013.[28] He records Mr Weldemichael first stating that he had the onset of pain in the right abdomen radiating into his right groin and right back and in the left abdomen radiating into his left groin and left back, occurring gradually, that his general practitioner certified him unfit to work any duties for a few days in March 2006, and that on 25 July 2006 the pain was at a level that he was unable to work, and he had been unable to work since. In November 2006, he had been referred to Cedar Court to have a multidisciplinary rehabilitation program assessment, but he was unhappy with the program and only attended once. He reported being referred to see other doctors but was unaware as to the diagnosis or what treatment was recommended. His current complaints were of pain in his right abdomen radiating into his right groin and low back, in addition to his left abdomen, radiating into his left groin and left back, and he reported by then having right knee pain for the past three months. Various investigations were shown, but the MRI of the right hip had not yet been conducted. He was still living at home with his wife and young children, and said he had been unable to do his hobbies of bike riding and swimming.
[28]Exhibit 12
75 On first examination, Dr Yong found Mr Weldemichael to be a pleasant man who answered questions appropriately, and he found no inconsistencies in his history. He walked with a slight limp, was able to squat, tiptoe and heel stand. Groin examination did not reveal any hernia, and there was minimal tenderness in both inguinal regions to palpation. Inspection of both hips revealed they were irritable with rotation, but both had reasonable range of movement. Tone in both legs was normal and symmetrical and the power in both legs was normal and symmetrical. There was a full range of right knee movement. Dr Yong considered that Mr Weldemichael had chronic abdominal, back and groin pain with a new onset of right knee pain. He felt the groin, back and abdominal pain had not resolved, despite ceasing work and not doing any tasks with significant manual handling, and was contributing to an incapacity for work. Dr Yong believed he did have a capacity for work but not tasks with significant manual handling requirements. Medical restrictions would include to avoid firm pushing and pulling, or lifting more than 5 kilograms, on a repeated basis. He considered Mr Weldemichael needed much support to facilitate successfully seeking and obtaining a new job, and that that support should come from all of the stakeholders. He considered the lower back pain which was described as developing at the same time as the right abdominal and groin pain as most likely radiating from that region rather than being due to an underlying back complaint.
76 On further assessment in February 2013, Mr Weldemichael described having pain in a wide range of locations in his body. Dr Yong noted that Mr Weldemichael walked into his consulting room with an obvious limp favouring the right leg. Inspection of the right hip revealed no scars or swelling, but it was irritable with all movements. Leg length was equal. Other areas of complaint were also examined. Dr Yong considered that Mr Weldemichael was likely to have degenerative conditions in his back, both hips, both knees and right shoulder, complicated by deconditioning process. He considered that the prognosis should not be unreasonable as Mr Weldemichael could participate in an activity-based recovery program which required a number of active physical therapies as well as home-based exercise programs. He considered that the worker’s employment was a significant contributing factor to the hip and back condition, and that another contributing factor was his age contributing to the degenerative condition. He considered the plaintiff had capacity to work in relation to his back and bilateral hip conditions, with restrictions of avoiding firm pushing and pulling, and lifting more than 5 kilograms on a repeated basis. Due to deconditioning and the wider range of complaints that had developed, he considered the plaintiff should be participating in an activity-based recovery program and that he had a work capacity to 20 hours per week, avoiding firm pushing and pulling and lifting more than 5 kilograms on a repeated basis.
77 Mr Hugh Weaver, orthopaedic specialist, provided a medico-legal assessment for the defendant’s WorkCover agent in June 2008. He had a history of the plaintiff being dissatisfied with his general practitioner for not giving him advice to stop working earlier, and also complaints about the WorkCover insurer not paying for physiotherapy or accepting liability for the knee conditions. Mr Weaver records Mr Weldemichael describing his major persisting problems as his back and both groins and both knees. Mr Weaver saw the plaintiff unaccompanied and noted that although his English was by no means perfect, he thought he could make sense of what he was telling him and when asked about how he felt about presenting with the assistance of an interpreter, he told Mr Weaver he does not like to use an interpreter. Mr Weaver found him to be a pleasant man speaking reasonable English sufficiently to get his point across. Mr Weaver considered he was moving well overall at the commencement of the interview, including his capacity to move about in very free fashion, but noted that he appeared to be limping slightly following his assessment. There was no asymmetry of the thigh or calf circumferences of his legs. His hip movements were undertaken fully on both sides, but he did complain of some low back discomfort as each hip was moved in turn. Examination of his knees was completely normal. Straight leg lowering was suggestive of a degree of lumbar disc pathology, although straight leg raising was undertaken to 80 degrees bilaterally with no sciatic symptoms.
78 Mr Weaver inspected various scans which he regarded as a very appropriate series of investigations. He considered the material suggested the presence of some genuine but very low key pathology. He noted a subsequent radiologist report on the MRI scan of the right hip suggesting there was a tear involving the superior labrum of the acetabulum, but he had not perceived it himself.
79 His opinion was that Mr Weldemichael was probably suffering from a genuine but mild element of degenerative pathology which probably affected both his lumbar spine and his right hip. He thought they probably reflected in large part the aging process but accepted that he could have had some aggravation as a consequence of employment activities that he had been performing back in July 2006. He felt there was no really convincing evidence that the plaintiff was exhibiting signs of any problem sufficiently severe to prevent him from remaining in appropriate active employment of some kind, including something like the pre-injury employment activities. However, he went on to say the single feature which he would suggest theoretically merited further investigation was the question of whether or not there was significant tear present involving the labrum of the right hip. He considered that an arthroscopy on the right hip could be justified and that fairly limited surgery could be undertaken to deal with the problem, although there could be no guarantee that it would make a great deal of difference to his overall symptom complex.
80 In discussing his employment potential, Mr Weaver referred to the fact that Mr Weldemichael’s English was only of limited standard, and he suspected there were a lot of other cultural influences which were bearing upon his situation, that he might very well require a lot of ongoing assistance from a rehabilitation service to be returned to the workforce in satisfactory capacity, noting also that he was a man of 50. Mr Weaver reviewed a number of other medical reports, being critical of Dr Ilahee for certifying him incapable of returning to work but noting that when she said he was theoretically capable of doing light work or sedentary type work with appropriate restrictions, he agreed with those. He noted a WorkFocus report of August 2007 as to a number of alternative employment activities and noted that Mr Weldemichael’s limited command of English might cause some difficulties for him with activities such as working as a clerk, but was of the opinion that he could be considered theoretically capable of undertaking a wide range of employment activities including some of those identified in the Work Focus report. He considered referral to a pain clinic might be of some benefit if Mr Weldemichael was prepared to cooperative with a program of that kind. On 4 December 2008, Mr Weaver provided a supplementary report after receiving a vocational assessment report by Ayres Management Services. He considered the plaintiff should be considered capable of attempting to return to employment in one or other of the Ayres situations.
81 In June 2011, Dr David Fish, consultant Occupational and Environmental Physician, examined the plaintiff to provide an impairment assessment for the defendant’s claims agent. The assessment was without an interpreter and Dr Fish noted difficulty communicating, noting that he was unable to obtain a clear description of onset of symptoms. He complained of persistent bilateral groin pain, worse on the right, particularly with movement, and that he could not sit for long periods, walk on the flat, or drive for long due to right groin pain. He woke at nights, spent his time lying down at home, and could not run. He was still living at home with his wife and two young children, and spent his time at home taking the children to kindergarten and attending church. He walked into the room with a pronounced limp on the right leg, displaying abnormal gait, and was constantly restless. Examination of the right hip revealed an extremely irritable hip but he could flex to 130 degrees. The MRI of his right hip result was noted despite cartilage measurement in both hips.
82 Dr Fish considered that the symptoms were consistent with a labral tear and osteoarthritis in the right hip. Despite no significant improvement after cortisone injections to the groins, Dr Fish recommended an arthroscopy of th right hip to confirm the MRI findings and resection of labral lesions if they were present. His diagnosis was of osteoarthritis with a labral tear of the right hip relevant to the right groin and muscle strain to the abdomen.
83 Mr Kenneth Brearley, consultant orthopaedic surgeon, provided a medico-legal assessment for the plaintiff’s then solicitors in April 2012. The history he took about the right hip and groin injury was largely consistent with events already outlined except that he records there being a particular incident in July 2006 when Mr Weldemichael was using the jack and pressing forcibly on it while he was underneath a trailer and felt quite severe pain in the right groin area, extending upwards to the back of the right hip. He did have the history from the previous year and in March 2006. Mr Weldemichael complained that the right groin pain worsened and on 25 July 2006, he made a WorkCover claim. He had not worked since. He was granted the disability support pension in January 2010.
84 Mr Brearley recorded as the history that the plaintiff subsequently developed pain in the right shoulder which he attributed to the heavy work he had been doing in jacking the trailers. He underwent a guided steroid injection in the shoulder in April 2008 and had further injections in early 2010. An ultrasound in March 2010 demonstrated tendinosis of the supraspinatus and some thickening of the subacromial bursa. He had a right shoulder arthroscopy with little improvement in his symptoms. Some months after his shoulder became painful he felt pain in both knees, and he also attributed that to being under strain at work when he would have to kneel to change the brakes on a trailer. He had scans and had been referred to Mr Joseph Robin, orthopaedic surgeon, in respect of both knees, and had undergone an arthroscopy on the right knee in October 2008 as a public patient at the Austin Hospital but said that his pain in fact became worse after that procedure.
85 Mr Weldemichael complained that he had developed pain in the back and both hips, the right worse than the left and was referred to Mr Michael Johnson, orthopaedic surgeon, who obtained an MRI scan of the lumbar spine in June 2008 which showed multilevel disc degeneration but no protrusion or significant central or foraminal stenosis. He had been referred to St Vincent’s Hospital by Dr Castle who said he underwent some steroid injections into both pubic tubercles with no benefit. He was then referred to the Barbara Walker Pain Clinic and commenced a pain management program in mid-2010. In relation to his right hip, Mr Robin had arranged an MRI scan which was carried out in September 2007.
86 Mr Brearley was told by Mr Weldemichael that his worst problem at that time was pain in the right groin, right hip and lower back region. He complained of difficulty standing for more than 10 minutes or so, being limited in walking to about 10 minutes and then having to stop and rest. He said his right shoulder was stiff and he had pain through the arm at times, and was unable to do any work at or above shoulder height. He said he used to work very hard and would certainly be working now in some job if he did not have his present pain. However, he said he could not do a clerical job or sitting down process type job because of his right groin and loin pain. He was currently taking Panamax, two per day, and Naprosyn once daily, and said he was unable to walk for exercise or swim and was unable to help his wife with the housework.
87 On examination, Mr Brearley found no evidence of an inguinal hernia or femoral hernia in the right groin. In the right shoulder there was no wasting or deformity that marked limitation of movement. The right knee had small scars of arthroscopy, movements were full but he complained of pain on flexion towards the limits and there was some crepitus on movements. The left knee movements were full and there was moderate sub-patellar crepitus. In the right hip there was no deformity, movements were full, but the plaintiff complained of some pain at the extremes of movement. There was moderate limitation of movement in his back. The various investigations and scans were reviewed.
88 Mr Brearley’s opinion was that Mr Weldemichael’s chief problem at that time was pain in the right groin, right hip and right lower back region. The MRI scan of the right hip had shown a tear of the superior labrum and also some chondral loss on the acetabulum and femoral head. Mr Brearley said that presumably this degenerative change was responsible for his hip symptoms and the likelihood was that it would very gradually worsen with the passage of time. He analysed the extent of the other injuries. He considered that all of the problems referred to had been significantly contributed to by the employment which was undoubtedly of a very heavy nature involving considerable strain on all of the areas referred to. He believed there was permanent impairment with regard to all of the injuries, with no likelihood that any of them would resolve with the passage of further time, and in contrast they were all likely to gradually worsen. The most serious injury was probably the right hip where Mr Weldemichael was complaining of ongoing pain and disability. There was demonstrable change in the hip joint with a labral tearing and chondral loss which would gradually worsen with the passage of time and would lead to increasing pain and stiffness. In the meantime he recommended conservative treatment and also possibly interventional treatment in the way of steroid injection and possibly arthroscopy. He considered there was a possibility of total right hip replacement being requireed in the future.
89 Dr Gary Davison, occupational physician, provided a medico-legal report to the defendant’s solicitors in March 2017. Dr Davison found communication with the plaintiff difficult, even with the assistance of a professional Eritrean interpreter. After reviewing a wide group of other reports and investigation reports, Dr Davison found limitations of movement on examination, which he did not consider were objectively supported by investigations or physically in that there was no wasting on the right side, and the right thigh was slightly greater in circumference than the left. His assessment concluded that examination failed to reveal any objective evidence of pathology, either in the thoracolumbar spine, the hips, pelvis or groin. He thought Mr Weldemichael’s presentation was dominated by pain behaviour and inconsistencies as between range of movement on direct examination compared to movements noted informally, such as Mr Weldemichael sitting in a chair and bending forward informally. He felt he could not provide a specific diagnosis in respect of the claims of right hip, pelvis, abdomen and groin complaints. He considered the range of movement inconsistent with the report on the MRI of 20 September 2007 and the later one of 2 January 2015. He concluded there was constitutional degenerative change in the right hip, but the clinical relevance was uncertain given what he perceived as substantial inconsistency between the range of movement of the hip on examination compared with en informal movement noted.
90 Dr Davison did not advise any treatment, given the lack of precise diagnosis. Nevertheless, while he concluded that Mr Weldemichael had a capacity for suitable employment, he did consider it had some physical restrictions, including to avoid deep squatting, manual handling greater than 10 kilograms in force or weight at bench height, that he required self-paced duties and graduated hours of work commencing at four hours per day and then increasing 30 minutes per day per week. Dr Davison considered the employment options identified in vocational assessments in December 2006, July 2007 and November 2008. He did not find the duties of enquiry clerk suitable given Mr Weldemichael’s apparent lack of English skills in conference with him. He queried the source of information in the covering letter, which said that Mr Weldemichael is fluent in English with good numeracy and mathematical abilities.
Analysis
Injury - to right hip and groin
91 I am satisfied that as a result of the strenuous nature of his work duties as a truck motor mechanic in the months leading up to and including July 2006, the plaintiff suffered an injury to his right hip and groin area. Its diagnosis has varied, and those doctors who saw him only in the period before the MRI scan of September 2007 attributed it to muscle strain in the groin or both groin and hip.
92 An MRI scan of his right hip conducted in September 2007 reported a labral tear and adjacent full thickness chondral loss of the acetabula and femoral head chondral surfaces, consistent with manifestations of femora acetablular impingement.
93 I am satisfied that the preponderance of the medical opinion since that MRI attributes to this pathology the basis of his ongoing complaints of pain and discomfort in the hip and at least to a degree the right groin and buttock areas. A subsequent MRI of the right hip in 2015 indicates further deterioration, which was consistent with opinions such as those of Mr Robin, Dr Castle and Mr Brearley, all much earlier, that there would likely be deterioration and eventually hip replacement surgery might be required. Although there is medical opinion, commencing with that of Dr Ilahee, that the pathology shown on MRI could be naturally occurring degeneration, Dr Ilahee also said it could be from trauma or both trauma and natural degeneration, and I am satisfied from the history of onset of pain over time at work that it is more likely than not that the work activity caused or significantly contributed to aggravating the pathology shown on MRI in his right hip.
94 It is less clear whether the groin pain was wholly attributable to the same injury, or separate injury in the nature of muscle strain. I find that some of the pain in the right groin is likely to be attributable to the right hip injury. Similarly, in relation to the lower right abdominal pain or discomfort, and right buttock pain, and as the plaintiff describes his area of pain by signalling generally over both front and back areas near the right hip, I accept that at least some pain or discomfort in his right lower abdomen and buttock results from the hip pathology caused or aggravated by his work duties.
Do the consequences of the injury to the plaintiff’s right hip and groin constitute a “serious injury” as to pain and suffering?
95 The plaintiff claims[29] to have suffered continuing pain and discomfort in his right hip, groin, lower abdomen and buttock area ever since July 2006. He says that this has very significantly impacted his daily activities over the last 12 years, significantly restricting the time he can comfortably sit, stand or walk, and that it has led to him abandoning the activity of cycling which he used to enjoy every two to four weeks, and to cease swimming for enjoyment. If the pain is bad he sometimes limps. He claims that his sleep is interrupted most nights by pain if he turns onto his right side, and is shortened even if he does not. He says he gets pain if he drives for long, especially pressing the brake pedal. He claims to spend much of his time lying down to relieve pain. He says he gets pain from his right hip when bending to put on shoes and socks, when washing his lower legs, and although he can do his shopping and housework for the small flat where he now lives alone, he claims to do little else with his time.
[29]Exhibit A – plaintiff’s first and second affidavits
96 He is now divorced from his wife. Mr Weldemichael attributes the end of his marriage to the indirect effect of his injuries, in that his wife went out to work in 2011 and this gave her a “financial upper hand” over him[30], as he was by then on a disability benefit. I make no finding to that effect, but accept that there is often strain on family relationships when a previous bread-winner and active worker ceases to earn income and spends much time doing little at home. His children live with their mother. He says that he was not able to play with them as he had hoped to do, and disappointed his daughter who wanted him to dance with her at Eritrean community activities and celebrations, to which he says he no longer goes. It is unclear how much contact he now has with his two children.
[30]Exhibit A – plaintiff’s second affidabit paragraph 3.
97 The defendant admits having had some surveillance carried out on the plaintiff at various times over several years, with only short video footage resulting[31] No surveillance film was shown during the hearing, and I infer from that that what film had been taken would not have assisted the defendant’s case. There was part of one surveillance report tendered[32]. I hesitated to allow its tender but that was initiated by the plaintiff. The comments of the investigator not only reflect that it occurred on a day the plaintiff was known to be attending a medical examination, but in my view do not alter the overall effect of the evidence. I am satisfied that the plaintiff has not been living a much more active lifestyle than he describes.
[31]5.25 minutes of video from 9 hours of surveillance on 9 January 2007; less than 11 minutes from 6 hours of surveillance on 21 March 2007; less than 10 minutes from 4.75 hours on 31 July 2008; 6min 40 seconds from 7 hours over 2 days in February 2013; 11.5 minutes from 10.25 hours over 2 days in May 2014; 21 min from 5.5 hours on 6 June 2017, and on another day in June it was the interpreter mistakenly filmed.
[32]Exhibits AD & 20
98 His only ongoing treatment is that he takes Naprosyn, Panamax and uses Deep Heat cream, all daily, and that has been his medication for most of the intervening years since his injury. While long-term taking of medication can be a significant consequence, I do not regard these substances or their quantities as likely to create too great a burden nor make him “groggy” or otherwise significantly affected. He would like to still be undergoing hydrotherapy, but does not have the funding for that.
99 He has undergone injections into his groin (both sides), and one and possibly two injections into his right hip, but none has provided any significant relief. I note that both Mr Robin and Mr Brierley considered that he might eventually require hip replacement surgery, Dr Castle considered it was more imminent, and that the repeat MRI ordered by Mr Campbell in 2015 showed deterioration since that of 2007, but Mr Campbell recommended pain management rather than surgery. I am satisfied that there is a possibility he will need hip replacement surgery, and although I cannot find that he will probably undergo such surgery, I find that it is a possibility with which he must live in the meantime.
100 In assessing whether the consequences to the plaintiff can fairly be described as “at least very considerable”, two key issues arise –
(i) whether he is exaggerating the extent of his pain and its consequences;
(ii) which consequences are attributable to the right hip and groin injury as opposed to his other conditions of bilateral knee pain, right shoulder injury, and to a lesser extent left hip and groin, and back pain[33]; and
(iii) whether his perception of symptoms from his right hip and groin is entangled with psychological factors.
[33]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
101 I have already explained why I do not consider the plaintiff’s own account of the extent of the symptoms and impact from his hip and groin injury to be wholly reliable. He often talks of pain from all of his injuries and not just the right hip area. He is heavily focussed on his pain and grievances, at times to the exclusion of logical limits.
102 The defendant submits that if the plaintiff cannot disentangle the psychological effects of his condition from the physical, he cannot succeed under part (a) of the definition[34]. There was reference by Mr Williams to the effects of depression and anxiety, and at the Cedar Court assessment to excessive focus on pain, and by implication from Dr Davison that inconsistencies in presentation were impacted by non-physical factors. Mr Weldemichael’s steadfast denial of suffering from psychological or mental ill health has made this issue almost impossible to explore by most of the doctors, and none of his treating GPs managed to break through his resistance to considering whether he was suffering from some psychological condition. Nevertheless, I am satisfied that there is sufficient overall medical confirmation that he has suffered an organically based injury to his right hip area, which has not been repaired, not resolved, will continue to deteriorate, and continue to cause him symptoms of pain and discomfort. In these circumstances, while I have considered that his pre-occupation with pain may be inflating his perception of that pain, I am satisfied that the primary cause of his ongoing pain continues to be organic injury in his hip.
[34]Meadows v Lichmore [2013] VSCA 201
103 In my view, the predominance of medical opinion supports that Mr Weldemichael has consistently complained of pain and discomfort from his right hip and groin area, and most doctors have accepted that he genuinely has continued to have those symptoms. The medical opinions almost all mention the impact being that he has pain which limits his tolerance for sitting, walking, and driving, interrupts his sleep, and that he is not fit to return to the occupation of a motor mechanic or similar. I place less weight on the views of Mr Weaver which I discount because his report entered upon advocating the defendant’s case, and also because he refused to accept the radiologist’s report on the first hip MRI. Despite the gist of Dr Davison’s report being that there is no diagnosable injury, he ultimately concluded that the plaintiff was unfit for heavy duties. On the other hand, I regard some of the reports of Dr Andrianakis as also entering the advocacy arena for the plaintiff, and to an extent also Dr Castle and Mr Brearley. I have given less weight to those aspects of their reports for that reason also.
104 I am also satisfied that the consequences of the subject injury can be fairly extracted from the consequences of other subsequent injuries, because it is clear that it was the right hip and groin injury that caused him to be put off work for rest, prescribed medication, and sent for physical therapies well before the complaints of knee pain emerged. Dr Ilahee monitored closely the impact on his work capacity from the different injuries, only changing her certificates back to total incapacity when he was actually awaiting right knee surgery, and then reverted to the partial incapacity she had been certifying since September 2006 in respect of the right hip and groin injury.
105 The timing of the emergence of his right shoulder condition is not clear, but it was at least a year if not closer to two years after the right hip injury. Notwithstanding that for many years the same medications have been prescribed for all of his alleged areas of pain, I am satisfied that the right hip injury started and has continued to be a major reason for those medications. I am also satisfied that his incapacity to return to his pre-injury heavy work as a motor mechanic (as a social impact on his life as distinct from the financial effect of lost income), and his pain, discomfort and limited activities, were established and well on their way to being entrenched before the knee and shoulder conditions emerged. He was refusing rehabilitation programs and efforts by November and December 2008 – because he wanted a total cure- well before his knees or right shoulder became subject of complaint or disabling effect.
106 Mr Weldemichael is somewhat secretive about parts of his life (consistent with Dr Nathar’s diagnosis of a paranoid condition, however caused), and I have doubts about the reliability of his account of the overwhelming degree of pain he describes and to which his life has been impacted. Nevertheless, I find that the preponderance of medical evidence supports that there have been significant consequences for him. I have decided on the balance of probabilities, that taking into account the circumstances of his life, his age, the continuing pain and discomfort from his right hip and groin injury and their limiting of his everyday activities as well as of most social activities of enjoyment, the loss of the satisfaction of working in a field for which he trained and had worked for much of his adult life, and the overall consistency of complaint to doctors over many years that the worst of his symptoms came from his right hip and groin area, when compared with other cases of impairment of body functions, can fairly be described as consequences to him which have been at least very considerable. I am also satisfied that having been entrenched over almost 12 years, and as the degenerative change is likely to deteriorate rather than improve, the consequences from that injury to him are likely to last for the foreseeable future. I am therefore satisfied that he has satisfied the test for a serious injury as to pain and suffering in respect of the injury to his right hip and groin area.
Loss of Earning Capacity
107 The legal requirements to obtain leave to bring a claim for loss of earning capacity damages are frequently very difficult to satisfy for plaintiffs who are represented by experienced counsel. Bearing in mind that the court must not be an advocate for any party, even if self-represented, I have approached this part of this application by considering the relevant issues and evidence even though they were not all articulated.
108 There are two aspects of the circumstances which raise particular complications. First, the fact that Mr Weldemichael claims to have suffered injuries to several parts of his body, some of them emerging since the subject injury, creates the need for him to establish, on the principles set out in Peak Engineering v McKenzie,[35] that the loss of earning capacity consequences are attributable to the subject injury, that is the injury to his right hip and groin area.
[35]Peak Engineering & Anor v McKenzie [2014] VSC 67
109 The second complication is that it is almost 12 years since the plaintiff suffered this injury and last worked. The court must assess the extent of his loss of earning capacity, as at the time the case is before the court. That means that if the court finds that he has current capacity for suitable employment, it will be current pay rates that must be used to assess whether he suffers a loss of at least 40%. However, because calculation of his “without injury” earning capacity, under s134AB(38)(f), only enables consideration of the plaintiff’s actual earnings in the three years before and after the injury, there is no allowance for inflation or overall increase in wage rates over intervening years. Although unfair for a worker having this assessment calculated many years after the injury, that is the law which I must apply[36].
[36]Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235
110 I am satisfied that since 25 July 2006 the plaintiff has been effectively incapacitated from his pre-injury job as a truck trailer mechanic. I make that finding based on all of the medical evidence except for the opinion of Mr Weaver. In particular I accept Dr Ilahee’s opinion that he required rest for his hip and groin condition to settle, and when it did not settle within a few weeks, her opinion was that he probably should not return to such heavy work at all.
111 Dr Ilahee continued to certify Mr Weldemichael as totally unfit for his previous job for approximately the following six weeks. She then certified him fit to return to modified duties but there were considerable restrictions on such duties, namely no lifting, bending or pushing. I am satisfied that that means he could not return to motor mechanic duties at his previous employment and it is difficult to see how he could perform duties of a motor mechanic even for lighter vehicles.
112 Taking into account the views of Dr Wilk, Dr Yong, and Mr Williams, during the following months, I find that Mr Weldemichael was not fit throughout the balance of 2006 and early 2007 to return to work as a motor mechanic.
113 It was not until the MRI of Mr Weldemichael’s right hip in September 2007 that some pathology supporting an ongoing anatomical basis for symptoms in his right hip area was found. Just because there is such an anatomical basis does not mean that it accounts for all of his complaints of pain in that area of his body, but I give less weight to the opinion of doctors who saw him before that and expressed some doubt about there being more than passing muscle strain responsible for his ongoing complaints of pain in his right hip, groin and buttock area.
114 By the time of that MRI, however, Mr Weldemichael’s condition was complicated by the emergence of complaints of other parts of his body that were causing symptoms and restricting his ability to engage in alternative employment. The emergence of complaints of pain in both knees which led to referral to Mr Robin, MRIs of each knee, and recommendation for surgical treatment, were clearly contributing to his incapacity for standing for long periods. The emergence of a right shoulder injury, the timing of which is unclear but was mentioned to Mr Brearley as being the subject of treatment in April 2008, in my view, and indeed on Mr Weldemichael’s own submissions, significantly limited and still does the options for alternative work which he could undertake, as it impacts the use of his dominant right arm.
115 I find on the balance of probabilities that even if no other injuries had emerged, the right hip and groin injury alone would have continued to cause some incapacity for work, and in particular, to restrict him from returning to the full duties of a motor mechanic, whether on truck trailers or lighter vehicles. In my view, such jobs would have required ongoing frequent bending, manoeuvring underneath vehicles, and pushing and pulling of heavy parts of vehicles such that the restrictions recommended by Drs Ilahee, Yong, and even Dr Davison more recently, would have excluded return to any employment as a vehicle mechanic.
116 However, I am not satisfied that absent the onset of knee and right shoulder conditions, he would not have been capable of engaging in some modified employment duties.
117 The reports of Dr Castle and Dr Andrianakis are to the effect that the plaintiff, throughout the time that they treated him, was incapacitated for all work for which he was reasonably suited. Dr Andrianakis was certifying him as such up to April 2018. Even apart from both of them entering into advocacy for the plaintiff to an extent which in my view limits the weight I should place on their opinions, the greater problem for the plaintiff’s case with those opinions is that they do not differentiate the contribution of his right hip and groin condition from the contribution of the bilateral knee problems, right shoulder, and, to a lesser extent, left groin and hip and back.
118 The chronological emergence of those other conditions and their impact on his ability to work was unable to be disentangled by those doctors who did not commence to treat him until all such conditions were the subject of his complaints. I do not overlook that the right hip was frequently referred to as causing the greatest problem, but ability to adapt to alternative work duties was not separately addressed by these doctors by reference to the different injuries.
119 Mr Brearley’s opinion in 2012 did support the total incapacity for employment of the plaintiff. However, his report was focussed on the causative link between each of the injuries of which Mr Weldemichael complained and his former work duties, and also failed to consider whether the incapacity for all employment was attributable to the hip and groin injury.
120 There are further issues in relation to this part of the application. The first is the application of s134AB(38)(g), which provides:
“a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;” .
121 The defendant argues that this provision should exclude the plaintiff from establishing a loss of earning capacity entitlement because he has unreasonably refused to participate in pain management programs or in rehabilitation or retraining.[37]
[37]Transcript (“T”) 440, Line(s) (“L”) 6-24
122 I find that there are several aspects of Mr Weldemichael’s approach to potential rehabilitation which were unreasonable. First, he developed a view quite early (late 2006) that he would not attempt any return to work until his injuries were fully cured. He articulated that to the WorkStreams assessors in December 2006. He argues, and I can understand, that he perceived the main focus of the defendant’s claims agent sending him for various assessments to be to get him back to work rather than to treat his health problems.
123 However, it was also treating doctors who recommended he undergo rehabilitation, starting with a referral for assessment for a Cedar Court program. Mr Weldemichael’s attitude totally failed to accept, a sad reality of life, that many people who are injured in various ways do not fully recover from their injuries. It is also fundamental to most rehabilitation programs that total cure of conditions and symptoms is often not possible, and there are measures that can be taken and methods leant to ease impairment of functioning by undergoing various types of programs and also by adapting life and work activities to minimise the occurrence and impact of symptoms.
124 I find that the plaintiff was unreasonable in his attitude at and abandonment of the Cedar Court assessment for a multi-disciplinary program. He seems to have abandoned that assessment partly because he had believed he was attending for a physical therapy session, and also because he was being asked questions which he felt intrusive and did not believe relevant to his injury. I accept from the report that the reasons for the assessment were explained to him at the time, and find that even though he was upset at the time, he was unreasonable in not subsequently returning.
125 Further, and even more starkly, I find that his refusal to undergo an assessment for a pain management program at Epworth in 2008 was unreasonable. He was referred for this assessment by doctors to whom he had been referred for treatment – Mr Johnson referred him to Dr De Graaf, and Dr De Graaf clearly explained the purpose of the assessment. Indeed Mr Weldmichael himself wrote to the claims agent complaining that funding had not been approved and the delay was impacting his health[38]. Funding was granted, but he then refused to undergo an assessment for the program he knew had been recommended for him, because he learnt that Epworth now owned Cedar Court, and the programs were similar. In my view his refusal to undergo that assessment was unreasonable on any objective basis.
[38]Exhibit D
126 Finally, he seems to have avoided the pain management referral to the Barbara Walker Centre, becoming wholly focussed on the failure of the defendant’s insurer to pay for the supportive shoes recommended by a therapist.
127 These findings of the plaintiff having unreasonably failed to engage in rehabilitation programs, however, do not mean that his application on this head must fail. Sub-para 134AB(38)(g) requires the court to take into account what the plaintiff would have been able to earn from personal exertion had he made reasonable attempts at rehabilitation.
128 I turn next to the further evidence relevant to this issue, included vocational Assessments, and the oral evidence of Ms Willett.
129 In December 2006, Mr Weldemichael was referred by the claims agent for vocational assessment by WorkStreams based on his work history, the certificate of Dr Ilahee that he was fit for modified duties with named restrictions, and the report of Dr Wilk that he was able to undertake some light duties work but not to return to heavy manual types of work.
130 In its first report[39] of December 2006, WorkStreams identified six suitable employment options, including “Inquiry clerk”. This option remained one of the recommendations of WorkStreams notwithstanding that in the first report the assessor rated his oral skills as poor[40], after a meeting with him on 18 January 2007 ““It became apparent early on in the meeting that there was a language barrier and Mr Weldemichael did not appear to understand the purpose of the referral. As he said he was able to read English, WorkStreams gave him information about the jobseeker plan to take home”, and in the second report[41] “Workstreams anticipate ongoing difficulties with communication unless Mr Weldemichael agrees to involve a Tigrinyan interpreter throughout the JSA program.” Despite these circumstances it was reported that following an English course he was undertaking the option of Inquiry clerk may be considered suitable.
[39]Exhibit 16 -
[40]P 5 of report – DCB 80
[41]P6, DCB91
131 In August 2007, he was referred for a further vocational assessment by WorkFocus. It found six suitable employment options including payroll/ accounts clerk and general clerk, but the latter were described as long-term goals because although Mr Weldemichael reported a “good” level of English reading and writing skills, and perceived that he had “good” English language and literacy skills, according to Ms Wattie (consultant WorkStreams, worker independent report dated 11 May 2007), Mr Weldemichael’s “difficulties with communication” presented as a potential barrier during the job-seeking assistance (JSA) program and also during the actual deployment process, for example interview presentation.
132 Ms Wattie had suggested a Tigrinyan interpreter to discuss his JSA program and provide job-seeking and interview skills training due to communication barriers. Ms Wattie had also reported that discussions held with Mr Weldemichael had demonstrated that a normal meeting would take double the time required due to his poor English speaking ability. The WorkFocus report considered that the payroll/accounts clerk and general clerk positions may be pursued as long-term goals following training in English language and literacy.
133 I note that when those reports were prepared, none of the suggested suitable employment options were for jobs where the average weekly wage would have reached 60 per cent of what had been his gross annual earnings before ceasing work with the defendant, over $61,000. None of the suggested jobs had an average weekly gross wage that would have produced $36,600 gross per annum. However, that does not assist the plaintiff in this application as I must make the assessment of whether he is now incapacitated from earning 60% of his without injury earnings based on current (2018) conditions and wage rates.
134 The defendant relied on a further vocational assessment, from Recovre[42] in June 2017, with a supplementary report in November 2017. I permitted the plaintiff to require Ms Robyn Willett, one of the authors of that report, to attend to be cross-examined. It emerged from Ms Willett’s evidence that she interviewed Mr Weldemichael with the assistance of an interpreter, but the actual jobs assessed as suitable for him were the input of Ms Ash, an Injury Management consultant and Occupational Therapist, also of Recovre, although Ms Ash had not met Mr Weldemichael.
[42]Exhibits 8 & 18
135 I am concerned that the methodology disclosed meant that the person who made recommendations for suitable jobs had never met the particular person being assessed, and that the person who interviewed him did not have the expertise when questioned, about the jobs recommended. Ms Willett said she did not have the expertise to assess the medical reports, and that was also left to Ms Ash, who is an occupational therapist.
136 The problem with this division of functions in preparing an assessment on the plaintiff, became clear during the hearing, as when Mr Weldemichael cross-examined Ms Willett, she struggled to understand him in court, as indeed had everyone else during the hearing. He had been interviewed by her with the assistance of an interpreter, but was reported by her as having verbal English communication skills, basic English literacy skills. As Ms Ash had never met him, she could not have known his ability to communicate for work purposes in English. She did however receive a letter from him of complaint[43], before her supplementary report, and that in itself should have alerted her to the likelihood that his literacy in English would be insufficient for employment purposes. Amongst his personal attributes, it was also listed that he had the ability to influence and negotiate, but it is unclear how that was to be achieved if people could not understand him in English.
[43]Exhibit 9
137 I regard the recommendation of the role of stock clerk, as described at length by Ms Ash, to be unsuitable for the plaintiff as it consisted of 70-80 per cent of the day’s work being computer/desk based, and although numerical data entering was more frequently used than word-based entry, it required using email[44] via Outlook, and requiring workers to manually check paperwork associated with inward goods to ensure that prices are correct and that the correct number of items has been received. There were also telephone-based tasks, as stock clerks were required to man the main telephone line into the business (shared with all other administration staff as there was no receptionist), as well as make and receive calls from suppliers and the like.
[44]Mr Weldemichael does not have his own computer or an email address
138 In my view, Mr Weldemichael’s limited ability to speak intelligible English would render him unsuitable to perform duties answering telephones, as he is very difficult to understand in person, and over the telephone the voice is likely to be further distorted. I also consider that his writing skills in English, although sufficient to participate in everyday life, would be regarded as inadequate by any employer requiring paperwork to be completed as part of usual work duties[45].
[45]Eg Exhibit D, Exhibit 9
139 Recovre also recommended his suitability as a forklift driver apparently because he had had a previous forklift ticket. Ms Willett felt unable to comment from her own expertise on whether driving a forklift was a suitable full-time job for someone with a known labral tear and degenerative change in his hip – being the subject injury in this case. I am satisfied that he is not suitable with that underlying pathology to be working full-time driving a forklift.
140 On the other hand, the suggestions since December 2006 of jobs involving assembly of light articles, in circumstances where he could move between sitting and standing, do seem within his capacity so far as his hip and groin injury is concerned. For example, the role of product assembler was one suggestion by Recovre. The role of mechanical parts interpreter was put forward by WorkFocus, although it may have involved more computer work than he is reasonably capable of being retrained for. It also put forward light assembly line work. I am not satisfied that he would not be physically capable of working at jobs of this nature, as a result of the restrictions from his right hip injury.
141 I am satisfied that if it is more likely to be the condition of his knees or his right shoulder that would interfere with his ability to perform such jobs, especially light assembly work, and I note the need to distinguish those injuries from the injury the subject of this application. Those were not conditions pre-existing the subject injury, but which manifested after it, so his right shoulder or knees did not prevent him being able to work at the time that the hip injury reached a stage of preventing him from being able to continue in the heavy mechanical repairs job he had been performing.
142 I have reached these views notwithstanding the opinions in a report which had been commissioned by the plaintiff’s former solicitors for this case, from Employment Professionals[46], which concludes that he has no realistic capacity for work. I have placed little weight on the conclusions in that report for three reasons. First, the history of injury on which it was based was clearly and significantly wrong, in that it recorded[47] that injuries to the plaintiff’s knees, right shoulder and back were pre-existing, and that on each occasion he had returned to working normal duties. It also records that he has medication dependence, and poor memory and concentration, which adversely impact employment prospects from a health and safety aspect, such as working near machinery. Secondly, the report fails to differentiate between the effects of the other injuries than that to his right hip. Thirdly, it addresses the realistic prospects of his being acceptable to prospective employers. The law I must apply requires consideration of his capacity to perform jobs rather than the realistic prospects of his obtaining such jobs on the employment market.
[46]Exhibit O
[47]Under heading “Pre-existing injuries/conditions” – page 2 of report – PCB61
143 Although I am not satisfied that he has been suited at any stage since July 2006 for duties as a motor mechanic, his main occupation for many years before his injury and for which he had training and experience, nor for any jobs requiring sustained communication in oral English nor the completion of significant paperwork in English, nor for any jobs requiring computer use beyond the most basic, I am not satisfied that his right hip and groin injury has since September 2006 incapacitated him for a variety of light assembly type roles or supervision or trade sales in mechanical parts.
144 If he has some capacity for suitable employment, as I have found, I must consider whether he has satisfied the requirement to prove a permanent loss of earning capacity of at least 40%. To do that I must first assess what figure for gross annual earnings fairly represents his “without injury” earning capacity, and for that must have regard to his earnings during the three years preceding and the three years immediately following the date of his injury. From the figures supplied on his Form A[48], accepted by the Defendant, his earnings exceeded $60,000 in two of the three years before he ceased work, and in the immediately preceding financial year (2006) were $61,132. I find that figure as appropriate to use for this purpose.
[48]Exhibit H
145 I have already noted that none of the jobs for which he was assessed as suitable by Workstreams, WorkFocus, (and only one namely product quality controller by Ayres) had average weekly wages which would have reached 60% of $61,132 – that is $36,679 or $705 per week. Unfortunately for Mr Weldemichael, I must take into account current (2018 – the last ones supplied being 2017) earning rates for suitable jobs, and even excluding some of the types of jobs I have already discussed which require more English or computer skills, remaining ones such as light assembly work (averaging $27.50 per hour) would produce annual gross income in excess of 60%[49] of $61,132.
[49]An average 38 hour week at $27.50 ($1045) – over minimum 44 weeks (allowing for the hourly rate being casual rates and not including 4 weeks annual leave, 2 weeks sick leave, and 12 days of Public Holidays ) – would produce approximately $45,900.
146 On these findings Mr Weldemichael does not satisfy the requisite loss of earning capacity of at least 40%. His application for leave to claim loss of earning capacity damages therefore fails.
Psychological injury
147 In his original application[50], as prepared by his then solicitors, Mr Weldemichael’s claimed injuries included “pain disorder”, and “anxiety and depression”. In his first affidavit (drafted by his lawyers), he stated that the injury to his right hip, groin, abdomen and buttock had caused him anxiety and depression,[51] although during the hearing he said that he does not understand this part of his affidavit.
[50]Form A
[51]Exhibit A – first affidavit, paragraph 5
148 In his words during the hearing, he felt he was being “pressured” and felt “stress”, which he attributes to the way he has been treated by those involved in the Workcover processes – the Defendant’s claims agent and insurer, their lawyers, his own lawyers from time to time, some doctors, and assessors for rehabilitation programs or vocational assessment. He did not abandon reliance on part (c) of the definition on the basis of this pressure and stress.
149 However, Mr Weldemichael is adamant that he does not suffer from any “mental disorder”. He maintains this, notwithstanding that during the hearing it was explained that a mental disorder can occur without a head injury, and that suffering such a condition does not mean that he has done anything wrong. It is apparent from reports that some doctors[52] have attempted similar explanations.
[52]Eg Dr Nathar
150 I accept that Mr Weldemichael feels that he has been treated badly by the WorkCover insurer through its agents and lawyers, by his own former lawyers or some of them, and by some doctors. I accept that he has felt pressured, and experienced considerable stress over many years from his experiences with making claims and having them rejected, and having to fight adverse decisions in various Courts or tribunals. However, to establish a serious injury under part (c) of the definition in the Act, he must satisfy the Court that he has suffered a mental health condition which amounts to a mental or behavioural disturbance or disorder. Stress is not such a condition in itself, and Mr Weldemichael insists that he does not suffer any other mental health condition.
151 Despite this I have considered medical opinion relevant to this issue. Mr Weldemichael made clear that he was not willing to attend psychiatric assessments, had apparently refused to see Dr Strauss many years ago, and felt betrayed by his own solicitors when he found that they had sent him to a psychiatrist for a report.
152 Nevertheless, he tendered a report from a medico-legal assessment in May 2017, organised by his then plaintiff’s solicitors, with consultant psychiatrist, Dr Nathar[53]. Dr Nathar describes Mr Weldemichael being surprised and objecting to being interviewed when he learnt that he had been sent to a psychiatrist. However he agreed to stay for the interview and assessment proceeded, Dr Nathar describing the interview as being conducted in very difficult and somewhat unusual circumstances, and how he took time to explain to Mr Weldemichael that he might be suffering from some stress associated with his physical problems. Dr Nathar considered that by his affect, Mr Weldemichael did not appear to be unduly depressed or anxious, but certainly was harbouring a lot of hostility at the WorkCover system, at doctors and solicitors overall, but he seemed to control his emotion outwardly quite well.
[53]Exhibit Q – 8/5/17
153 Dr Nathar diagnosed an adjustment disorder, mainly with some anxiety type reaction towards his physical problems, but believed that any adjustment disorder by then was very much in the minority in terms of his clinical functioning, because he had also developed a florid paranoid psychotic illness. Dr Nathar discussed whether the paranoid illness could have been spontaneous, or whether the background of seeking asylum in Germany may have left Mr Weldemichael prone towards developing some kind of psychiatric illness later in his life. As there seemed to be no clear evidence of any psychiatric or paranoid disorder prior to his work for the defendant, Dr Nathar said he could not exclude the circumstances of the development of his physical problems in the course of his work, and the resultant stress and anxiety following that from having contributed to his paranoid state. He concluded on the balance of probabilities that it was probably the circumstances arising out of his work injuries that perhaps initially gave rise to the adjustment disorder and that became elaborated into that of a paranoid state. He suggested that anti-psychotic medication could be tried, supplemented by supportive therapy, but noted that Mr Weldemichael has no insight into the nature of his psychiatric disorder and no wish to see a psychiatrist, and therefore there was no point recommending psychiatric treatment. He thought the prognosis of that condition poor. In light of the paranoid state being moderate to severe and his psychiatric prognosis poor, Dr Nathar could not see any prospect of Mr Weldemichael improving in the foreseeable future, even with treatment. He was sure the plaintiff’s psychiatric problems would have been shared with his general practitioner and thought it would be useful to see if his general practitioner would have any records of his emotional distress and also thought further information about his domestic difficulties should be obtained. However, they would only be useful in understanding the depth and severity of his paranoid illness and probably would not assist in any way in helping him get better.
154 Mr Weldemichael also attended a psychiatric assessment organised by the defendant with Associate Professor Doherty in February this year.[54] Professor Doherty had been provided with an extensive number of other reports. There was apparently not resistance to use of an interpreter, and Professor Doherty found Mr Weldemichael, although long-winded and discursive in answers to questions, to be alert, aware, orientated, clear in consciousness and not showing paranoid psychotic symptoms, persecutory anxiety, or delusional belief ideas. Mr Weldemichael saw himself as being unfairly and unjustly treated but there were no features of traumatisation. Professor Doherty noted no tears, distress, perturbation or anguish evident, and found the plaintiff was not suspicious, mistrustful or guarded and was generally cooperative with satisfactory eye contact.
[54]Exhibit AA – tendered by Mr Weldemichael
155 Professor Doherty’s opinion was that there was no diagnosable psychiatric condition using criteria in DSM-5. He specifically disagreed with Dr Nathar’s diagnosis of a paranoid psychotic disorder. Regarding the diagnosis of adjustment disorder, he noted that Mr Weldemichael told him that he had difficulty adjusting to the pain and functional limitations, but was of the opinion that there were no clinically significant symptoms that had reached such a sufficient level to warrant the making of a psychiatric diagnosis. He gave consideration as to whether there was pain-related psychiatric condition present, noted that the worker’s functional limitations were more than what would be expected from the known physical pathology (not his speciality but noted from supplied reports), noting that his predominant symptom was pain. Professor Doherty concluded that a diagnosis of a somatic disorder with predominant pain should be considered but could not be based on DSM-5 criteria. As he did not diagnose any psychiatric or psychological disorder, no treatment for such a condition was felt warranted.
156 Mr Weldemichael understandably points to how different the two psychiatric opinions are, and queries how that could be.
157 Dr Andrianakis, the plaintiff’s treating GP since 2012[55], reports that Mr Weldemichael insists that he has not suffered a mental health condition, and therefore has not accepted any potential treatment for one. I note that Dr Andrianakis[56] ticked boxes in WorkCover certificates to the effect that the plaintiff does not suffer disability in concentration, memory or judgment (ability to make decisions). That is consistent with Mr Weldemichael’s presentation during many days of hearing before the Court when, although noticeably tiring at times, he maintained remarkably good memory and concentration.
[55]After the hearing in April, Mr Weldemichael found the clinic where he attended Dr Andrianakis closed, so when the hearing resumed in June he had visited another GP once.
[56]And Dr Hau whom the plaintiff has attended once since discovering Dr Andriankis’ clinic closed.
158 With the plaintiff not accepting or seeking to rely on the diagnosis of Dr Nathar, and in any event it being specifically contradicted by Professor Doherty in the only other report by a psychiatrist in evidence, and taking into account that the general practitioners treating the plaintiff over the years and in particular over more recent years, do not specifically support the existence of a diagnosable mental health disorder, I am not able to find on the balance of probabilities that the plaintiff has suffered a mental health condition for the purposes of part (c) of the definition. I do not doubt that he has experienced much stress over the years since he last worked for the defendant, but I am unable to find a diagnosable psychological condition or, in terms of the definition, mental or behavioural disturbance or disorder.
159 Further, although the opinion of Dr Nathar was that the plaintiff suffered a paranoid psychotic condition which was moderate to severe and the prognosis poor, the ongoing certificates of general practitioners are to the effect that his attention/concentration, memory and judgment are not affected. He has had no treatment for any mental health condition (not even mild relaxants for “stress”), and he was able to present his own case with sufficient memory and concentration over some eight days of a court hearing. Even if I could be satisfied on the balance of probabilities that Dr Nathar’s diagnosis of an adjustment disorder, or of a paranoid psychotic condition were correct, the evidence does not satisfy me that the consequences to the plaintiff could be fairly described as “severe”.
160 For these reasons I am not satisfied that the plaintiff suffered a “serious injury” under part (c) of the definition.
Conclusions
161 For the reasons outlined, I am satisfied that Mr Weldemichael suffered and injury to his right hip and groin as a result of employment duties with the defendant. I am satisfied that that injury amounts to a serious injury as to pain and suffering and propose to grant him leave to bring proceedings for pain and suffering damages.
162 I am not satisfied that He has satisfied the requirments to obtain leave to claim loss of earning capacity damages.
163 I am not satisfied that Mr Weldemichael suffered a mental or behavioural disturbance or disorder as a result of his employment, and even if he did I am not satisfied that any such condition would satisfy the requirements for a serious injury under part (c) of the definition, either as to pain and suffering or as to loss of earning capacity.
SCHEDULE OF EXHIBITS
Kifle Weldemichael
v
I.D. Sales & Repairs Pty Ltd
| Number and identifying mark on Exhibit | Short description of Exhibit | Tendered By |
| A | Plaintiff’s affidavits of 8 April 2016, 7 March 21018 and 26 March 2018 | Plaintiff |
| B | Bundle of WorkCover Certificates from Dr Ilahee 25 July 2006 to 28 September 2007 | Plaintiff |
| C | 10 page Cedar Court Multidisciplinary Assessment Report dated 23/11/06 | Plaintiff |
| D | One page of Plaintiff’s letter to Bassett Gallagher dated 19/10/08 Second page of Plaintiff’s letter to Bassett Gallagher dated 19/10/08 | Plaintiff Plaintiff |
| E | Letter from Epworth Rehabilitation to Gallagher Bassett dated 30 October 2008 in respect of Mr Weldemichael’s cancellation of pain management assessment | Plaintiff |
| F | Physiotherapy treatment notification form 13/12/2006 | Plaintiff |
| G | Report from surgeon at St Vincent’s to Dr Castle as to injections 11/11/09 | Plaintiff |
| H | Form ‘A’ Application 8/4/16 | Plaintiff |
| J | Medical Reports of Dr Peter Andrianakis dated 22/7/13, 22/11/15, 26/12/15, 1/7/17, 4/7/17, 10/9/15 and 4/3/18. | Plaintiff |
| K | Medical reports of Dr Charles Castle dated 7/12/08, 22/9/10 and 15/3/12 | Plaintiff |
| L | Medical report of Dr Fatema Ilahee dated 15/09/06 | Plaintiff |
| M | Medical reports of Mr Ben Campbell dated 17/12/14 and 09/02/15 | Plaintiff |
| N | Medical report of Mr Kenneth Brierley dated 26/04/12 | Plaintiff |
| O | Employment Professionals Vocational Assessment dated 06/07/17 | Plaintiff |
| P | MRI reports on right hip dated 20/09/07 and 02/01/15 | Plaintiff |
| Q | Medical report of Dr M J Nathar dated 08/05/17. | Plaintiff |
| R | Reminder letter from plaintiff dated 07/03/18 | Plaintiff |
| S | Gallagher Bassett letters dated 03/04/07 and 26/10/10 | Plaintiff |
| T | WorkCover certificate regarding right groin and hip dated 12/05/17 | Plaintiff |
| V | Report of Ms Sriskandarajah dated 27/12/06 | Plaintiff |
| W | Report of Mr Joseph Robin dated 18/09/07; Further report of Mr Jospeh Robin 18/12/07 | Plaintiff |
| X | Reports of Dr Victor Wilk dated 22/08/06 and 13/09/06 | Plaintiff |
| Y | Reports of Mr Hugh Weaver dated 26/06/08 and 04/12/08 | Plaintiff |
| Z | Report of Dr David Fish dated 07/06/11 | Plaintiff |
| AA | Report of Associate Prof Peter Doherty dated 18/2/18 | Plaintiff |
| AB | Letter to plaintiff from Marianne Isaacs headed Physiotherapy Department with attached list of dates dated 23/8/10 | Plaintiff |
| AC | Letter from plaintiff to Gallagher Bassett Services dated 10/08/17 with attached letters from Dr Andrianakis dated | Plaintiff |
| AD | Page 4 of surveillance activity logs relating to the plaintiff dated 14/01/13 and 04/02/13 | Plaintiff |
| AE | Two WorkCover certificates of capacity from Dr Peter Andrianakis both dated 18/03/18. | Plaintiff |
| AF | Copy letter to Plaintiff from Scott’s Refrigerated Freightways dated 27/7/06 | Plaintiff |
| AG | Copy certificate of capacity dated 24/05/2018 from Dr Tah Wei Hau | Plaintiff |
| 1 | Reports of MRI of left and right knees 4th and 5th September 2007 | Defendant |
| 2 | Copy report dated 24/4/07 to Dr Ilahee on CT of lumbosacral spine and report of MRI of lumbar spine 4/6/08 to Mr Johnson | Defendant |
| 3 | Bundle of eight certificates from Dr Castle and Dr Andrianakis dated between 29/11/10 and 25/9/12. | Defendant |
| 4. | Bundle of 17 certificates from Dr Andrianakis dated 10/4/13 to 9/4/15. | Defendant |
| 5. | Bundle of 78 certificates by plaintiff's GPs from 21/09/07 to 20/11/15. | Defendant |
| 6. | Five-page Cedar Court multidisciplinary assessment report 9/11/06 | Defendant |
| 7. | Letter from Dr Stephen de Graaff to Mr Michael Johnson dated 8/8/08, facsimiled letter from Gallagher Bassett Services dated 16/9/08 and letter from Dr Stephen de Graaff to Mr Michael Johnson dated 5/12/08. | Defendant |
| 8. | Reports of Recovre by Ms Willett 19/6/17 and 16/11/17. | Defendant |
| 9. | Letter from Mr Weldemichael to Ms Willett 2/6/17 and Letter from Mr Weldemichael to VWA dated 2/9/17 | Defendant |
| 10. | Certificate of capacity 12/5/17 | Defendant |
| 11. | Report of Robin Williams dated 16/03/07 | Defendant |
| 12. | Reports of Dr Dominic Yong dated 01/08/07 and 05/02/13 | Defendant |
| 13. | Reports of Dr Gary Davison dated 07/03/17, and 04/07/17 | Defendant |
| 14. | Reports of Dr Ilahee dated 31/08/06, 29/09/06, 14/12/06, 06/12/07, and 23/02/08 | Defendant |
| 15. | Report of Associate Prof Littlejohn dated 08/01/07, 19/01/07, and 30/03/07 | Defendant |
| 16. | Vocational Assessment by Workstreams 21/12/06 JSA Job-seeker plan 18/1/07; JSA Halfway Report 17/3/07; Worker Independent JobSeeker Report 22/05/07 | Defendant |
| 17. | WorkFocus report dated 05/08/07; Worker Independent Job Seeker Report from WorkFocus 08/04/08 | Defendant |
| 18. | Supplementary report of Ms Ash dated 26/06/17 | Defendant |
| 19. | Plaintiff's claim forms and questionnaire dated 27/06/06, 27/07/06, 10/07/08, 17/11/10, 17/03/11, and 09/04/15 | Defendant |
| 20 | Page 5 of surveillance logs for 04/02/13 and 07/02/13 | Defendant |
| 21 | Vocational assessment report - Ayres Management Services dated 21/11/08 | Defendant |
| 22 | Letter from IDP Lawyers to Patrick Robinson & Co 01/09/2015 | Defendant |
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