Whittaker v Whittaker Services Pty Ltd
[2009] VCC 677
•16 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-03944
| PAUL WHITTAKER | Plaintiff |
| v | |
| WHITTAKER SERVICES PTY LTD & | Defendants |
| CAMBRIDGE INTEGRATED SERVICES VICTORIA PTY LTD |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 & 3 June 2009 |
| DATE OF JUDGMENT: | 16 June 2009 |
| CASE MAY BE CITED AS: | Whittaker v Whittaker Services Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0677 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – application under s.134AB(16B) Accident Compensation Act 1985 – serious injury in respect of pain and suffering and loss of earning capacity consequences – leave granted to plaintiff to bring proceeding for damages in respect of serious injury for physical consequences only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Clarke Toop & Taylor |
| Mr M T Schulze | ||
| For the Defendants | Mr J Parrish SC with | Thomson Playford & Cutler |
| Mr S Dawson | ||
| HER HONOUR: |
1 Paul Whittaker brings this application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) for leave to commence common law proceedings for damages in respect of injury suffered during the course of employment and, in particular, on 30 May 2001 with Whittaker Services Pty Ltd (Whittaker’s).
2 Whittaker’s was a family business conducted by the plaintiff’s father and his brother. The company imported various restaurant and café machines from Italy. It rewired, sold and serviced those machines to cafés and restaurants and supplied associated products.
3 Mr Whittaker was employed as a general labourer/delivery person with the company from 1 March 2000 to 7 November 2002. He describes the work as being heavy, requiring a great deal of lifting and bending. The machines weighed from 27kg up to 67kgs. The plaintiff worked alone and alleges that he started to suffer intermittent back pain associated with his work from around mid-2000.[1]
[1] PCB 18
4 On 30 May 2001, the plaintiff alleges that he suffered injury to the low back whilst attempting to deliver some boxes of iced coffee and a mocca product to a café at Southbank. There was no trolley available for him to use so he was carrying two boxes of product in at a time. Whilst walking from the loading dock through double doors into the café he slipped, jerked and twisted his body but he managed to stop himself falling. In so doing, he felt immediate pain in the low back. He kept working and attended his doctor the following day. [2]
[2] PCB 19
5 The plaintiff continued to work performing the same duties with significant difficulty, particularly with pain in the low back and right leg. He was treated conservatively with physiotherapy, acupuncture and massage.
6 Following a CT scan performed on 28 October 2002, Dr Martynes, general practitioner, recommended that he stop work because of the severity of the symptoms.
7 On 7 November 2002 he ceased work and has not worked since.
8 On 10 December 2002 the plaintiff’s WorkCover claim for weekly benefits was accepted for the low back injury.[3]
[3] PCB170
9 Mr O’Dwyer, SC, on behalf of the plaintiff, submitted that the plaintiff relies upon both physical and psychiatric consequences of injury.
10 Leave is sought in respect of both pain and suffering consequences and loss of earning capacity consequences.
11 The claimed “serious injury” pursuant to paragraph (a) of Section 134AB(37) of the Act, is a permanent serious impairment or loss of function of the spine, namely, aggravation to pre-existing degeneration including disc injury at two levels, L4-5, L5-S1, predominantly, L4-5.
12 The claimed “serious injury” pursuant to paragraph (c) of Section 134AB(37) of the Act, is a permanent severe mental or permanent severe behavioural disturbance or disorder, namely, adjustment disorder with depression and anxiety symptoms, as well as an aggravation of pre-existing bi-polar disorder.
13 Mr Whittaker submits as a consequence of both the claimed physical and psychiatric injury that he:
(a) has no current work capacity; (b) is unable to return to his pre-injury employment; (c) is unable to return to suitable employment; (d) suffers a loss of earning capacity of 40 per centum or more; (e)
will continue permanently to suffer a loss of earning capacity of 40 per centum or more.
14 During the conduct of the hearing, Mr Parrish, SC, on behalf of the defendant, accepted in his final submissions that, in the circumstances of this case on the evidence available, it is open for the Court to find that the plaintiff is seriously injured, in respect of the pain and suffering consequences following physical injury.[4]
[4] T 83, lines 22-24
15 Given the preponderance of medical material that accepts the plaintiff suffered a compensable discal injury with ongoing consequences this is a sensible concession.
16 Mr Parrish, submitted however, that the plaintiff does not satisfy the more stringent tests set out in s134AB(38)(e) of the Act with respect to loss of earning capacity for the physical injury.
17 Further, he submitted that the claimed psychiatric impairment consequences are not “serious” within the meaning of the Act. He submitted that any mental or behavioural disturbance or disorder, the consequences of which the plaintiff now suffers, did not arise out of his employment with Whittaker’s and/or cannot be “fairly described as being more than serious to the extent of being “severe”. Any loss of earning capacity by reference to the claimed psychiatric impairment does not satisfy the test of serious injury.
The evidence and findings on credit
18 Mr Whittaker gave evidence and adopted affidavit material sworn and filed in these proceedings as being true. Those affidavits were sworn on 15 May 2007, 19 September 2008 and 5 May 2009. They set out the plaintiff’s background, the circumstances of the injury and its effects on his social, domestic and recreational activities. No other witness was called to give evidence. The parties tendered medical reports, radiological investigations and rehabilitation reports in accordance with the attached schedule.
19 No real challenge was made to the plaintiff’s credit and I find that his evidence is truthful, reliable and credible. He was a straightforward witness who did not seek to embellish his claim.
Factual context
20 Much of the background to this application is not disputed. Mr Whittaker was born on 25 August 1970 and is aged 38. He successfully completed VCE Year 12 at Balwyn High School in 1988. In 1989 he commenced but did not complete a Diploma in Building Construction at Swinburne TAFE.
21 After leaving school he worked in various physical occupations doing landscape gardening, dishwashing and work as a contract labourer. He worked as a dealer at Crown Casino in 1996.
22 In the late 1990’s whilst he was working as a dealer Dr Raymond Martyres, general practitioner, arranged a series of investigations because of reported problems of manic moods and visual disturbance.
23 In 1998 the plaintiff was diagnosed a suffering from Bipolar Mood Disorder that has been managed and treated with major anti psychotic medication initially from Dr Martyres and currently from Dr Andrianakis, another general practitioner.
24 Some time in 1999 he ceased work at Casino and commenced work as a contractor for various Labour Hire firms. On 1 March 2000 he commenced employment as a labourer/delivery person with Whittaker’s.
25 Following injury, the plaintiff attempted a return study at Victoria University but was not successful.
26 Currently the plaintiff is in receipt of a Disability Support Pension.
27 His ongoing treatment is conservative and is managed by Dr Andrianakis. He undertakes a self directed exercise program of hydrotherapy and working out at the gymnasium. His daily medication include Panadeine Forte; Norspan patch; Digesics; Neurofen Plus (pain relief); Zoton (gastro); Diazepam (muscle relaxant); Zyprexa (bi-polar).
Physical injuries
28 I shall proceed to consider the application initially by reference to the physical consequences of the back injury suffered during the course of his employment with the defendant and in particular, on 30 May 2001.
29 The plaintiff refers in his affidavit material to problems with back pain pre- dating his employment with Whittaker’s. Having regard to the fleeting nature of those complaints with no time lost from employment I consider those complaints of pain were self limiting and find that prior to claimed injury the plaintiff had free and unrestricted use of his back and was capable of undertaking his normal employment duties.
30 The preponderance of medical opinion accepts that the plaintiff suffers chronic low back pain and sciatica to which his employment has been a significant contributing factor. The radiological investigations including MRI confirms the diagnosis of lumbar canal stenosis at L4/5 due to disc prolapse and right sciatica due to L4/5 disc prolapse with compression of the adjacent L5 nerve root that correlates to the plaintiff’s symptoms.
31 Mr Robert Marshall is alone in his assessment that the plaintiff’s symptoms relate to a constitutional problem and not the result of any injury at work.
The plaintiff’s medical treatment
32 Dr Raymond Martyres, general practitioner, initially treated the plaintiff for his claimed back injury. He provided a number of reports dated 16 January 2003, 6 October 2003 and 3 August 2004, detailing his history, treatment and management following injury.
33 Dr Martyres noted that a CT scan performed on 28 October 2002 revealed canal stenosis at lumbar 2-3, 3-4, 4-5 levels due to disc prolapse resulting in moderate canal stenosis.[5]
[5] PCB 43
34 He referred Mr Whittaker to a neurosurgeon, Professor Jeffrey Rosenfeld. An MRI scan performed on 3 December 2002 confirmed the diagnosis of lumbar canal stenosis at L4/5 due to disc prolapse. Professor Rosenfeld considered the right sciatica was probably caused by L4/5 disc prolapse with compression of the adjacent L5 nerve root that correlated well to his symptoms.[6] He continued to treat the plaintiff until 8 January 2003.
[6] Professor Jeffrey V. Rosenfeld to Dr R Martyres, 19 December 2002
35 He did not consider the plaintiff’s symptoms were severe enough to warrant surgery and recommended that he change his job as he could no longer do any heavy lifting. The plaintiff’s symptoms indicated to him that he should not return to physical labour as there was a high chance his symptoms would worsen. He recommended he stop this work and undertake retraining.[7]
[7] PCB 52
36 He recommended a course of regular spinal exercises, such as Pilates, ongoing paraspinal muscle strengthening exercises, ongoing physiotherapy, intermittent use of anti-inflammatory drugs so as to avoid the need for surgery and to improve his symptoms. This regime continues.
37 Dr Peter Andrianakis, general practitioner, is responsible for the plaintiff’s ongoing management. He reviewed the plaintiff on 3 November 2000 at which time he recorded that he presented with complaints of back pain and he prescribed Panedeine Forte and Voltaren.
38 He confirmed that the plaintiff next attended on 30 May 2001 after slipping awkwardly on a greasy floor whilst carrying a heavy box weighing 20kg. He felt pain in his lower back and found mobility difficult.
39 Because of the significant pathology revealed on the CT scans and the MRI Mr Whittaker was referred to Mr R. Bittar, neurosurgeon. He saw the plaintiff on 2 December 2004 and on 10 February 2005.
40 Mr Bittar noted in a letter to Dr Andrianakis there was no specific incident which pre-dated the onset of the symptoms. (He did not appear to have a record of the twisting incident of 30 May 2001). He recorded a history of chronic heavy lifting activities at work, which also involved bending and twisting, and he often lifted heavy household appliances weighing in excess of 40 kilograms.
41 He noted that the MRI scan dated 3 December 2002 demonstrated significant canal stenosis, particularly at L4/5, with a right-sided disc prolapse. There was a smaller disc bulge at L5/S1. The end result of this appears to be compression of the L5/S1 nerve roots on the right side.
42 Mr Bittar organised an updated MRI scan which demonstrated disc protrusions at multiple levels, particularly at L4/5 and L5/S1 where his right S1 nerve root was displaced and possibly his L5 nerve root was also compressed.[8]
[8] PCB 53a
43 Given that the plaintiff had a long period of conservative therapy with no significant improvement he recommended surgery by way of a right L5 hemilaminectomy, L5/S1 rhizolysis and possibly a microdissectomy at one or both of those levels and insertion of a interspinous distractor for his back pain.
44 The plaintiff declined to take up the surgical intervention and decided to proceed with other measures such as acupuncture and chiropractic treatment to see if they could improve his pain.
45 Dr Andrianakis chronicles the plaintiff’s ongoing severe low back pain that he states was intense and needed opiate analgesia on occasion to manage the pain.[9] By July 2005, he also noted that the plaintiff became very depressed and unwell. He referred him to a psychologist for further relaxation and pain management.
[9] PCB 73
46 In October 2007, Dr Andrianakis referred the plaintiff to see Dr Clayton Thomas, rehabilitation specialist. Dr Thomas felt surgery was unlikely to benefit the plaintiff and that he suffered from spondylosis and disc problems as described in the MRI scans.
Medico-legal examinations
47 Mr S. Schofield, orthopaedic surgeon, examined the plaintiff on 11 January 2005, 5 May 2006 and 12 September 2008 at the request of the plaintiff’s lawyers. He noted no significant problems with the back prior to the claimed injury on 30 May 2001.
48 In his opinion, the plaintiff had a quite significant multi-level degenerative change, which was constitutional for a man of his age, and the spinal condition was asymptomatic until the twisting strain caused a disruption of posterior annulus at L4/5 and possibly L5/S1, causing symptoms which have persisted due to aggravation of degenerative change.
49 Mr Schofield considered that the kind of stress placed on the spine in the twisting incident is consistent with the development of a rupture of the degenerate posterior wall of the lumbar disc at L4/5 and probably also at L5/S1. He considered that the prolapse had not healed and the plaintiff still had evidence of right sided radiculopathy on symptoms although this is not confirmed by neurological examination.
50 He recommended decompression and stabilisation of the lower three lumbar levels. He considered that the injury has been a significant contributing factor to the onset of his symptoms and not enabling him to continue working in his pre-injury duties.[10] He considered that the prognosis was very guarded without surgical intervention. The plaintiff will never ever be fit to resume his previous labouring duties.[11]
[10] PCB 55
[11] PCB 58
51 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 9 March 2005 for the WorkCover agent. He diagnosed aggravation of long standing, asymptomatic degenerative changes of the lumbar spine aggravated by the forces sustained in the described twisting incident of the 30 May 2001, with disc degeneration giving rise to back pain and by nerve root irritation, leg pain. He states that ongoing pain may be anticipated to continue indefinitely. He considered that employment had been a significant contributing factor to the claimed injury.
52 Mr Russell Miller, orthopaedic surgeon, reviewed the plaintiff on 9 October 2008 and 23 March 2009. In his opinion, the plaintiff suffered a disc injury and aggravation of a degenerative disease, but there was no nerve root or spinal canal compromise from a neurological point of view. He noted poor response to the conservative measures and did not recommend surgical intervention. He believed that long-term prognosis is poor.
53 He considered that it is likely that his work in general and the work event in May 2001 precipitated symptoms in relation to the lumbar spine and caused the disc injury probably at the L4/5 level. He considered that the plaintiff’s condition is stabilised and that he has been left with significant long term impairment.[12]
[12] PCB 93f
54 Mr Paul D’Urso, neurosurgeon, examined the plaintiff on 24 February 2009. He noted that the plaintiff has been symptomatic following the incident on 30 May 2001.
55 He reviewed the CT scan from 28 October 2002 and the MRI’s taken on 3 December 2002, 14 January 2005 and 19 September 2008. The radiology demonstrated a right L4/5 disc prolapse with subarticular L5 nerve root compression. There were four level lumbar disc degeneration and with broad based prolapses at other levels from L2 to S1.
56 Mr D’Urso confirmed that the plaintiff presents with chronic back pain and sciatica. This in his opinion relates to the four-level lumbar disc degeneration and prolapse. He considered it likely the workplace injury contributed to the development of the condition.[13]
[13] PCB 93o
57 He considered that he will have permanent incapacity of a partial nature. Surgical intervention could be considered as a last resort.
58 The medical material relied upon by the defendants is somewhat dated.
59 Dr David Fish, occupational physician, saw the plaintiff for assessment on 4 December 2002. Dr Fish confirmed that he had lumbar canal stenosis with disc degeneration at three lower levels with the suggestion of neurological cortication in the right leg with right S1 nerve root impingement. He suggested an MRI to confirm this.
60 Dr Fish considered employment was a significant contributing factor because of the duration of the employment, the nature of the work performed and, in particular, tasks of employment.[14]
[14] DCB 10
61 Mr William Doig, orthopaedic surgeon, reviewed the plaintiff on 24 July 2003. In his opinion, the plaintiff sustained an injury which is prolapsed lumbar disc at L4/5, giving him some mild right-sided sciatica and that appeared to be a fairly unstable disc with the pain not bad at times but sometimes worse. He considered employment was a significant contributing factor when he was lifting during the course of his work on 30 May 2001.[15]
[15] DCB 14
62 He considered that the plaintiff should not do any lifting and he could not undertake his pre-injury duties.
63 Dr Michael Baynes, occupational physician, saw the plaintiff for medical assessment on 7 October 2003, 27 April 2004 and 10 August 2004. He confirmed the plaintiff had evidence of L4/5 right prolapsed disc causing canal stenosis. He believed work was a significant contributing factor to aggravation of a pre-existing injury.
64 He considered that the plaintiff was not fit for pre-injury duties and has limitations on lifting and emphasised the need for frequent change of posture.
65 Mr Robert Marshall, orthopaedic surgeon, saw the plaintiff on 21 January 2004. At that time, he said the plaintiff had obvious spinal pathology and considered that it was constitutional in nature, not related to his work. This opinion is out of kilter with all the other expressed opinions and in those circumstances I place no weight on his expressed opinion.
66 Dr Gary Davison, occupational physician, reviewed the plaintiff on 26 September 2006 and 21 February 2008. He noted Mr Whittaker’s complaint of chronic low back pain and stiffness associated with intermittent right lower limb pain and sensory disturbance. The cause of the pain was not in his opinion clinically evident.
67 Dr Davison considered that the MRI scans indicate the presence of multi-level degenerative changes in the lumbosacral spine, which are unlikely to be clinically significant. There is evidence of intervertebral disc protrusion most marked at the L5-S1 segment and this is associated with some displacement of the right S1 nerve root sheath. This would be consistent with symptoms described by the plaintiff.[16]
[16] DCB 35
68 Mr David McIntosh, consultant orthopaedic surgeon, reviewed the plaintiff on 14 August 2008. He considered the plaintiff had a significant low back pain injury suffered at work in 2001. Investigations suggested a degree of spinal stenosis with significant disc disease, particularly at L4/5 and L5/S1 where there are disc protrusions and some nerve root impingement. The plaintiff had complained of persisting symptoms since the injury. His prognosis was that the situation was stable and there is no indication for surgery.[17]
[17] DCB 45
Findings – physical injury
69 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors [18] that the correct template is firstly, to determine whether the plaintiff suffered compensable injury on or after the 20 October 1999; secondly, determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[18] [2005] VSCA 33
70 On balance, I am satisfied that the plaintiff suffered a compensable injury, namely, aggravation of long standing, asymptomatic degenerative changes of the lumbar spine with disc prolapse at L4/5 and L5/S1 giving rise to back pain and by nerve root irritation, leg pain.
71 The plaintiff claims that the injury he suffered arose out of or during the course of his employment from 2001 and, in particular, on 31 May 2001.
72 Only Mr Miller and Dr Fish specifically comment on the injury occurring due to the nature of the employment. Their expressed opinions support the proposition that it is likely that the plaintiff’s work in general and the work event in May 2001 precipitated symptoms in relation to the lumbar spine and caused the disc injury probably at the L4/5 level. Other commentators who have commented on the causation issue have focussed on the incident that occurred on 30 May 2001.
73 On balance, I accept the expressed opinions of Mr Miller and Dr Fish based on the plaintiff’s uncontradicted evidence that his work was heavy requiring him to lift heavy weights and that he started to suffer intermittent back pain associated with his work in mid- 2000 and in particular, on 31 May 2001[19].
[19] Plaintiff’s affidavit paragraph [8], PCB 18
74 This evidence is supported by reference to the entry on 3 November 2000 in Dr Andrianakis’s records of him attending for treatment for low back pain.
75 I am satisfied that his employment was a significant contributing factor to the injury and that the plaintiff’s injury did arise out of or in the course of his employment from 2001, and, in particular, on 31 May 2001.
76 Insofar as the injury represents an aggravation of pre-existing condition only the consequences and impairment resulting from that aggravation shall be considered in accordance with Petkovski v Galletti [1994] VR 436.
77 I find that the injury will not mend or repair to any significant extent. I consider that the injury meets the requirements of being permanent.[20]
[20] See Barwon Spinners Pty Ltd v. Podolak & Ors [2005] V.S.C.A. 33 per Phillips JA for the Court.
Consequences – pain and suffering
78 The plaintiff was not challenged in his evidence concerning the nature and extent of the matters he complains of as a consequence of the physical injury. He has chronicled the difficulties he has had with low back pain since May 2001 in his three affidavits.
79 Mr Whittaker has not worked in paid employment since November 2002. He attempted a return to study at Victorian University but failed to complete his Diploma of Building Construction. He studied part-time for a number of years. He failed some subjects and withdrew from others. He stated he had great difficulty studying because of the constant pain he suffered. He has difficulty sitting for any lengthy period and finds it hard to concentrate and remember things.
80 He suffers constant chronic pain in the low back which radiates into his right leg and, on occasion, radiates up into his central back. He suffers some associated numbness and tingling in the right leg. He has regular cramping in the calf muscles and spasms in his leg and back. His pain is aggravated by activities such as sitting for too long, standing for too long, bending, twisting and lifting. Movements of his back remain quite free.
81 Prior to injury, the plaintiff had an active life. He was interested in cycling and walking, playing social tennis, snooker and basketball with friends regularly. He now has ceased those activities. His low back condition has interfered with his ability to enjoy his young children. He has twins who are aged five. He self-medicates with alcohol in order to cope with the pain. Sleep is poor. He says he experiences back pain regularly throughout the night. He often gets up to stretch and move around.
82 His relationship with his wife has been impacted upon. He tries to engage in playful activities with the children, but says he often suffers afterwards. He finds that around 5pm or so he suffers significant back pain and can do little more for the rest of the day. He is currently using Norespan pain patches as an alternative to Oxynorm. He regularly attends the local gymnasium to perform exercises and hydrotherapy.
83 The plaintiff’s wife, Karina, attests to the differences between his ability to undertake physical tasks following the injury. He used to enjoy physical activity from sport and work and, since the injury, he has not been able to undertake such activities.
84 For a man of 38 who has already endured 8 years of those consequences with the likelihood being they will continue into the indefinite future they can be fairly described as more than significant and as being at least very considerable.
85 I am satisfied that the pain and suffering consequences of the plaintiff’s impairment or loss or body function of his low back when judged by comparison with other cases in the range of possible impairments or losses of body function could fairly be described as being more than significant or marked and as being at least very considerable.
86 I am satisfied that those consequences meet the statutory requirement of serious injury.
87 In making that finding I have not taken any psychological consequences into account.
Consequences - Loss of Earning Capacity
88 An issue in dispute in this claim relates to loss of earning capacity with respect to the physical injury.
89 The consensus of medical opinion is that the plaintiff remains unfit for his pre- injury labour duties.
90 Mr Whittaker ceased employment with the defendant in around November 2002 and has not worked since.
91 The real issue in dispute in this application is what is the extent, if any, of the plaintiff’s capacity to undertake suitable employment.
92 Mr O’Dwyer’s primary position is that the plaintiff has no capacity for suitable employment. In the event that a finding is made in relation to a notional ability to undertake suitable duties, he submitted, that the position of the plaintiff is such that he could not undertake such employment on a regular basis and, because of his limitations and restrictions, any “after injury” notional earning capacity is minimal, and, consequently, he still satisfies the test of serious injury in respect of loss of earning capacity.
93 The parties agree that the “without injury” earning capacity that most fairly reflects the plaintiff’s situation is $32,000. Sixty per cent of $32,000 is $19,200 gross per annum or a weekly gross figure of $369.25.
94 Mr Parrish submitted that, on the basis of the most recent medical evidence concerning this aspect of the plaintiff’s claim, he is capable of resuming full- time work in a range of duties, including rental clerk, inquiry officer, accounts clerk/admin officer or call centre operator, and that he has the capacity to earn in excess of $19,200 per annum, even if he works only 20 hours per week.
95 This aspect of the plaintiff’s claim I have resolved by reference to the plaintiff’s evidence and Dr Andrianakis’s evidence. The doctor has had the advantage of having managed the plaintiff over the many years since the injury and continues to review him monthly. He has both clinical knowledge and is familiar with the radiological findings and the ongoing necessity for pain management.
96 Dr Andrianakis notes in his report dated 5 December 2006 that the plaintiff, by his own admission, has good days and bad days concerning his back pain, and has good hours and bad hours, and states that this is common for such injuries. He states, “What is often not mentioned by health providers that refer injured workers back to work is the reality that the back pain persists and does not behave predictably.” Dr Andrianakis notes that the plaintiff may be taking strong analgesics, which may cause drowsiness or poor concentration, to manage his pain, which would make him unreliable and a problem to himself and his employer.
97 Dr Andrianakis is of the view that he has a very poor prognosis for a return to pre-injury work duties.[21] This is reflected in the majority of commentators’ reports concerning the plaintiff. Dr Andrianakis assessed that that the plaintiff is totally and permanently incapacitated for any work duties.[22]
[21] PCB 74
[22] PCB 77, report of Dr P. Andrianakis, 26 September 2008
98 I accept that the plaintiff has no work capacity by reason of the impairment of the low back following injury.
99 Dr Clayton Thomas who reviewed the plaintiff on 8 October 2007 considered, from a physical/organic point of view, that he would have a capacity to return to work which did not involve bending, lifting or twisting. He would need to have a position that did not require him being in one posture for any prolonged period of time. He would not be able to work full-time. He postulated the plaintiff may be able to work in the vicinity of five hours per day or 25 hours cumulative per week.[23]
[23] PCB 89
100 Mr S. Schofield considers that the plaintiff is unfit for his pre-injury employment and will never be fit to resume previous labouring duties. He states that if his chronic pain could be controlled, he should be able to be re- trained into work of a sedentary nature.[24]
[24] PCB 62
101 Mr Brownbill, who saw the plaintiff on 9 March 2005, confirmed his view that the plaintiff was incapacitated to undertake pre-injury employment. From a neurological point of view, he postulated that it would be reasonable for him to attempt a return to work program that avoided heavy lifting, forced spinal mobility or repeated bending or prolonged sitting or standing. However, such an attempt would need to be performed in a graded fashion under close medical supervision to determine his responses.
102 Ultimately he states it is likely that as he has described ongoing back and leg pain which is aggravated by physical activity, this would preclude him from completing such a return.[25]
[25] PCB 81
103 Mr Russell Miller, reviewed the plaintiff on 9 October 2008 and stated that he is not fit for pre-injury work and cannot return to work that involves repetitive bending, repetitive lifting and lifting of weights more than five kilograms. The plaintiff will have a requirement to shift his posture on a regular basis and those restrictions are permanent and work-related.[26]
[26] PCB 93f
104 Mr Miller does not consider that the plaintiff is fit or capable of returning to work as a storeman and those restrictions are permanent. He stated in a later report dated 27 March 2009 that the plaintiff could not work as a general labourer or delivery person and could not perform significant manual work.[27]
[27] PCB 93m
105 Mr Paul D’Urso, who examined the plaintiff on 24 February 2009, believes that he has no capacity for pre-injury employment or any type of employment that requires manual or physical labour. He considers him permanently incapacitated for this type of employment and that he appears to have little capacity for employment in general, although there may be some capacity for part-time duties.
106 He places permanent restriction on the plaintiff’s ability to lift weights in excess of five kilograms and he should not be required to lift weights from below the knee or above the shoulder. He would have to have the ability to ambulate freely in a workplace and avoid sitting and standing postures in excess of one hour at a time. He suspects that, even with these restrictions, employment would be limited to less than 20 hours per week and he would require substantial vocational training and assistance in order to find any type of suitable employment.
107 The defendants’ material concerning this aspect is all dated.
108 Dr Fish last reviewed the plaintiff on 4 December 2002 and stated that he is not unfit for all work, but available for suitable duties. That needs to be further investigated.
109 Mr Doig, in July 2003, confirmed the plaintiff has an incapacity for his pre- injury employment and he should not do any lifting so he recommended re- training.
110 Dr Baynes saw the plaintiff in October 2003, April 2004 and August 2004. He considered him not fit for pre-injury duties, fit for alternative duties where there is no lifting greater than 12 kilograms and no repetitive lifting greater than 7½ kilograms. There should be no repetitive lifting below knee height and he should be able to frequently change his posture and should not work with constrained postures.
111 Dr Baynes considered him fit for full-time hours. Given the passage of time and the difficulties the plaintiff still has with issues concerning his chronic pain I do not consider that any weight that can be attached to this report.
112 Dr Davison, on 28 September 2006, considered that the plaintiff had a capacity for suitable duties subject to the following physical restrictions; avoid heavy lifting greater than 10 kilograms, in force all weight continuously at bench height, avoid prolonged sitting or prolonged standing by varying posture regularly and at will and avoid frequent and repetitive bending or twisting.
113 Dr Davison agreed that the plaintiff did not have the capacity to undertake pre- injury duties as manual handling requirements are likely to exceed those recommendations. He would, however, have the capacity to undertake delivery duties as a delivery driver or courier driver, provided the physical restrictions recommended were observed.
114 Dr David McIntosh, on 14 August 2008, considered that the plaintiff has a current work capacity for pre-injury employment, provided there was no bending and lifting. He should avoid work as a store person because of the bending and lifting restrictions. He could work as a stock and purchasing clerk, transport recording and dispatch clerk, inquiry and admissions clerk, product quality controller or with building, architectural and surveying associate professionals. He could work as a sales assistant, provided he avoids the restrictions on bending and lifting, or work as a gaming dealer, but would need to avoid repetitive bending, sitting or standing for extended periods.
115 In summary, some of the medical commentators refer to a notional residual capacity for work. Their expressed opinions vary and are qualified by reference to limitations on manual handling, limited hours, no bending, lifting or twisting, prolonged sitting or standing, the ability of the plaintiff to change posture and the need to manage the plaintiff’s chronic pain.
116 When regard is had to those limitations and the factors set out in the definition of “suitable employment” (s.5 of the Act) I am not satisfied that this is a situation where the plaintiff would be able to exercise any notional residual capacity for work in a position that is generally available in the employment market. Regard must be had to the realities of the employment market.
117 I am guided by what was said by Buchanan, J in Smorgan Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 at paragraph[10].
10. In my opinion the phrase ‘in suitable employment’ applies equally to income the worker is earning and is capable of earning. The element to be ascertained is the worker’s loss of earning capacity, and requires comparison between what the worker was earning or was capable of earning at the date of the decision and what he was earning or would have earned had the injury not occurred. If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.
118 The same considerations apply when consideration is given to the vocational reports relied upon by the parties.
119 Ms Judith Long prepared a vocational assessment of the plaintiff following an interview conducted on 17 March 2005. She considered that he was unfit for his pre-injury occupation.
120 She considered the role of forklift driver and thought that was inappropriate having regard to the need for sitting tolerances, and also bending and lifting would present problems. Gaming dealer and sales assistant she considered unsuitable because of the need to sustain standing and forward flexion. Sales representative and sales assistant were not suitable because of the need for lifting and carrying heavy and awkward loads and the restrictions on his manual handling.
121 Ms Long reviewed the recommendations of Ms N. Thomas of Work Streams in a vocational assessment report dated July 2004, prepared at the request of the defendants, where she recommended five occupations suitable for the plaintiff, specifically, sales assistant, building and construction, transport and dispatch clerk, stock and purchasing clerk, motor vehicle parts interpreter and telemarketer.
122 Ms Long considered he could not perform a sales role because of the manual handling requirements. The plaintiff could perform the clerical aspects of a transport dispatch clerk but would experience difficulties with heavier aspects of the job. Motor vehicle parts interpreter would be unsuitable because of the manual handling difficulties. Telemarketer, is not suitable because this requires sustained sitting.
123 Ms Long provided a further report dated 25 September 2008. After reviewing additional medical material, including a report from Mr Schofield, Dr Bisas, the affidavit of the plaintiff sworn 15 May 2007, she confirmed that the plaintiff was fit for work which could be described as light or sedentary with restrictions regarding lifting, twisting, bending and sustained postures. He was not further interviewed for the purposes of this assessment and Ms Long drew her conclusions from the material. She noted that the plaintiff had not completed the Diploma of Building Construction, had failed several subjects, withdrew from others and had difficulty with concentration and memory and that he was no longer involved in that course.
124 She noted in the initial vocational assessment she concluded the plaintiff was fit for full-time work with permanent restrictions and that a suitable occupation was rental clerk or inquiry clerk. She considered they were still suitable. She considered, however, he would be unable to work as an inquiry clerk in a call centre due to his difficulties with sustained posture, impulsivity and concentration. He could, however, work as an inquiry clerk for a builder, supervisor or hardware store. Work as a rental clerk in an equipment or car hire environment would be suitable as long as he was limited to office duties. He could work as a rental clerk in a video store with restrictions on bending and stooping.
125 In a letter dated 13 May 2009, Ms Long stated, following consideration of more recent medical reports from Mr R. Miller, Mr P. D’Urso, Dr D. Weissman and Dr P. Andrianakis that she sees no reason to change her opinion that the plaintiff would be fit for part-time work as a rental clerk or inquiry clerk with restrictions with a sympathetic employer. She considers the likelihood of obtaining employment with these restrictions is negligible. She did not consider he was suited to further re-training or vocational rehabilitation.[28]
[28] PCB 132b
126 Given my acceptance of the plaintiff’s doctor’s evidence I do not accept that the plaintiff has a capacity to perform the roles suggested by either Ms Long or Ms Thomas.
127 In his evidence, the plaintiff expressed a desire to return to work. In re- examination, he was asked about a customer service job where he could sit and stand as he liked. The plaintiff responded that because of his pain and his emotions, which were not conducive to dealing with the public and dealing with customers, he did not consider he could undertake that job. [29]
[29] T50, L12-25
128 With respect to working as a building inspector, he said he did not really know what was involved, that it was all a bit sketchy, but it would involve working with the public, builders and council members and that that would be a pretty stressful job. He did not think that he would be able to cope with that. He stated that he gets confused a fair bit and is not very good with figures, so such a job would not be suitable.[30]
[30] T50, L26-31; T51, L26
129 He said he could not drive a forklift because that would aggravate his back pain and that he could not do a store person’s job.[31] He gave evidence that working as a gaming dealer was difficult. He said he had a semi mental breakdown and was not able to work in that role because of his mental condition.
[31] T52,L5-10
130 In response to a direct question from the Court concerning his sleeping habits, he confirmed that they were not very good at the present time. He described his situation whereby he usually goes to bed around 11pm or midnight and wakes at about 4am or 5am and takes Panadeine Forte again to go back to sleep, a sort of drowsy sleep, until about 9am. Then he gets up and gets going quite slowly into the day. He described that pattern had been going on for a few years and he has been trying to change his medication so that he can sleep better.[32]
[32] T55,L12-27
131 Given that I find that the plaintiff has no work capacity I am therefore satisfied that the plaintiff has discharged the burden of proof in this regard both in relation to the very considerable test and in relation to the additional stringent tests contained in s.134AB(38)(e)-(g).
132 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving a relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
133 I am satisfied the plaintiff has satisfied this onus. He tried a return to study but was unsuccessful. He cooperated with the various vocational assessments and attended various job seeking programs over the period from December 2002 to March 2008.
134 It is agreed that the plaintiff’s pre-injury without injury earnings are $32,000 gross. I am not satisfied that the plaintiff has a current work capacity for suitable duties within the meaning of s.5 of the Act and consider that his after injury earnings are nil.
135 When the requisite comparison is made with other cases in the range of possible impairments and losses of a body function is made, the loss of earning capacity consequences may be described as being more than significant or marked and as being at least very considerable.
136 The plaintiff has discharged the burden of proof in relation to the physical injury to his low back in respect to both pain and suffering consequences and pecuniary loss consequences.
Psychiatric injury and the consequences
137 Another issue in dispute in this case is the nature and extent of any psychiatric injury that follows from the claimed injury and whether the psychiatric injury satisfies the more stringent test of “severe”.
138 It is not in dispute that the plaintiff suffered a pre-existing bipolar mood disorder.
139 Dr Raymond Martyres, general practitioner, referred Mr Whittaker for assessment to a number of specialists in 1996, 1997, 1998 and 1999.
140 Dr Trevor J. Kilpatrick, neurologist, assessed Mr Whittaker in November 1996. At that time, he was experiencing problems with visuospatial perception. In addition, Dr Kilpatrick noted he had long-term problems with learning, particularly for writing and arithmetic functions. At that time, he was working as a croupier at Crown Casino, was performing competently on the blackjack table, but had problems with the roulette wheel, resulting in the antagonism of patrons and some difficulties with his employer.
141 Dr Kilpatrick considered it was likely the plaintiff was suffering from a long- term congenital minimal brain dysfunction manifested by visual perceptual difficulties. He suggested formal documentation of the plaintiff’s cognitive abilities and an assessment with a neuropsychologist.
142 A neuropsychological report was prepared by Dr David Andrewes. His opinion was that the plaintiff showed a general level of intellectual performance within the average range. There were signs of impairment on two of the sub-tests within the battery of tests that he performed. The first involved arithmetic, which he considered may not be an indication of deterioration since Mr Whittaker reported being poor at mathematics since childhood. On a test which required mental manipulation at a speed, his performance was impaired, suggesting some slow information processing. Evidence of memory impairment was present, both in his ability to learn information and to retain it.
143 Therefore, he concluded the plaintiff had the following impairments according to the norms of a person of his age and sex:
(1) mild to moderate memory impairment for both verbal and non-verbal material;
(2) slowed information processing on tasks requiring flexibility and speed of information processing.
144 Dr Andrews recommended psychiatric assessment may be worthwhile. He postulated it may be possible no neurological disorder is found and that he may be suffering from hypomania that may be controlled through drug therapy.
145 Dr John Reilly, psychiatrist, reviewed the plaintiff on 27 March 1997. Dr Reilly considered he posed a diagnostic problem and could not see sufficient evidence to suggest any form of psychotic disorder, including a current or past manic episode. He considered the plaintiff had alcohol and cannabis dependence. It seemed likely that he had had either a specific learning deficit or some form of an attention deficit disorder as a child. He noted problems of insomnia and suggested that Temazepam may benefit the plaintiff in the short term only.
146 Dr Robert C. Daniel, psychotherapist, reviewed the plaintiff in February 1998. At that time, Dr Daniel considered he was presenting with mania and he suspected an underlying bipolar affective disorder, probably present insidiously for a long time. He considered that psychotherapeutic treatment would be suitable. He recommended referral to Dr A. Polonowita, psychiatrist.
147 Dr Rajan Iyyalol, consultant psychiatrist, reviewed the plaintiff on 19 August 1998 and subsequently on another occasion for follow-ups. He considered the problems were longstanding complaints with chronic insomnia and mood swings, mainly toward hypomanic side. He made the diagnosis of bipolar II disorder with primary insomnia, and alcohol and cannabis use historically. The plaintiff’s major concern on presentation was dissatisfied sleep with what was near total insomnia, mild depressive symptoms and he was not responding to medication. Dr Iyyalol prescribed Citaloprim and Melleril to aid sleep.
148 Dr Ronald Barry, psychiatrist, reviewed the plaintiff on 24 and 31 August 1998 and then referred him to Ms Astra King, psychologist, for a comprehensive psychometric evaluation. He noted that the plaintiff had been diagnosed with bipolar personality disorder approximately eight months previously, for which he had been prescribed Lithium, Amitriptyline and Melleril.
149 However, the medication was said to be not providing the expected benefits and, hence, the plaintiff sought an assessment for clarification.
150 Dr Barry assessed him as being in the average range of intelligence with possible specific learning disabilities and ADHD. He performed within the average range in the area of basic reading, yet below average for areas of spelling and mathematics.
151 Investigation into possible attention deficit hyperactivity disorder indicated that the plaintiff performed within the average range for all areas on testing. The DSM IV check list indicated that, at this time, the plaintiff did not strictly satisfy the criteria for ADHD, although consideration of age (adulthood) and other factors such as the influence of medication should be noted.
152 Overall, Dr Barry considered the plaintiff appeared to have many of the traits and difficulties commonly associated with the adult presentation of ADHD, although he appeared to have adapted and developed coping strategies with certain tasks and difficulties. At times, his hyperactivity, restlessness, fidgeting, impulsivity, difficulties with organisation and maintaining effort for tasks are the main areas of behavioural concern. He did have difficulties with mood and emotional issues, including irritability, aggressiveness, somatisation and depression. Furthermore, life issues, personality or behavioural traits appear to have had an impact on his daily life. At that time, Dr Barry did not consider there was sufficient expression of bipolar difficulties to confirm or negate the presence of this disorder.
153 When last reviewed on 30 November 1998, the plaintiff was working as a builder’s labourer, earning good money, sleeping adequately with the aid of Melleril and his mood appeared to be eurhythmic. He appeared to be concentrating and coping adequately and was not manifesting any apparent ADHD symptomology.
154 In his affidavit material, the plaintiff refers in great detail to the physical consequences of his injury. In his first affidavit, sworn 15 May 2007, he confirmed he had been diagnosed with bipolar disorder in the mid to late 1990’s that was managed with psychotropic medication obtained through his treating doctor, Dr Raymond Martyres.
155 He subsequently changed his general practitioner to Dr Andrianakis, who prescribed Seroquel. Dr Andrianakis has been treating him from November 2000 and following, and regularly reviews him every month or so.
156 The plaintiff mentioned sleeping problems associated with his bipolar disorder disorder and the back pain.
157 In his second affidavit, sworn on 19 September 2008, he reiterates that he has very poor sleep because of both the low back pain and the bipolar disorder.
158 In his third affidavit, sworn on 5 May 2009, the plaintiff noted he had his bipolar medication changed to Zyprexa. This affidavit primarily focused on the consequences of the low back pain.
159 Karina Whittaker, the plaintiff’s wife, swore in her affidavit that the plaintiff seemed to have greater difficulty dealing with his bipolar disorder because he was less active.[33]
[33] PCB 26(g)
160 The treating general practitioners, Dr Raymond Martyres and Dr Peter Andrianakis have both provided medical reports. There is no specific mention of the effect of the injury on his bipolar disorder in either of the treating doctors’ reports.
161 Dr Andrianakis referred to the plaintiff being very depressed and unwell, and referred him to a psychologist, Mr George Tsironis, for relaxation therapy and pain management.[34] Dr Andrianakis diagnosed depression and referred to that in a letter to Centrelink dated 20 February 2006.[35]
[34] PCB 70, 73
[35] PCB 71
162 Mr George Tsironis reviewed the plaintiff on 28 July 2005, some four years or so following injury. He diagnosed chronic adjustment disorder with depression in a letter responding to information sought by Cambridge Integrated Services. Initially, he was assessed as suffering mild depression on 24 August 2005. On 8 February 2006, he was assessed as having symptoms consistent with severe depression.
163 Mr Tsironis noted that the plaintiff was diagnosed with manic ADD disorder, and says “but nothing appears to have confirmed this”, he goes on to state in his opinion, the plaintiff’s heightened anxiety appeared to derive from his injury, which is understandable, particularly given that he was not coping with the situation at all.
164 Mr Tsironis’s expressed opinion was somewhat weakened by not having reference to that other material which sets out the plaintiff’s pre-existing problems to which I have already extensively referred.
165 The plaintiff relies on an opinion of Dr T.A. Bisas, senior medical adviser, set out in a letter dated 31 March 2006 addressed to Ms Karen Paul, Advocate Legal Services, Melbourne. Apparently, this report was provided in support of an application for a Disability Pension.
166 Dr Bisas has not examined the plaintiff. He concludes that the plaintiff had a psychiatric dysfunction of significance which was permanent, that is, likely to be long term, and that a relevant table descriptor was moderate regular symptoms, functioning with some difficulty. He noted an inter-relationship between the plaintiff’s spinal problems and his psychiatric disorder.[36] This finding is somewhat diminished by the doctor not examining the plaintiff.
[36] PCB 84
167 The plaintiff has been reviewed for medico-legal purposes by Dr David Weissman, psychiatrist, at the request of the plaintiff’s solicitors. He consulted with the plaintiff on 9 April 2009.
168 Dr Weissman did have available to him the medical material to which I have earlier referred detailing the investigations and assessments that were conducted in the late 1990’s concerning the plaintiff’s psychiatric condition. He noted that the plaintiff was suffering from bipolar mood disorder in or around 1998. Also, he was diagnosed as suffering from attention deficit disorder and learning problems at around that time.
169 Dr Weissman noted the plaintiff did not see a psychiatrist or a psychologist for treatment and was seeing Dr Peter Andrianakis, general practitioner. The plaintiff takes Zyprexa, 10 milligrams daily, as a mood stabiliser. At that time, he took no other mood stabilising medication, such as Lithium or Epilem. He was taking Seroquel for six to seven years.
170 He described the plaintiff as being a person who can cope with his activities of daily living although he said the plaintiff did not walk much and did not like to drive the car much at all. He was quite socially active, although he found it difficult to socialise after 4pm or 5pm because of his pain and discomfort. The plaintiff had a good relationship with his wife, Karina, and attended the gym up to four times a week, doing and stretching in the hydrotherapy pool and using the spa. He described himself as constantly feeling fairly racy, which did bother him a bit, but he told the doctor that it feels better than being depressed. He said his back pain and injury get him down, particularly he became depressed and irritable in the evenings, and he drank alcohol and smoked as a form of self-medication. He described his sleep as “pretty shit”. He had initial insomnia due to pain and discomfort and racing thoughts, and middle insomnia due to pain and discomfort.
171 The doctor thought, on mental state examination, that the plaintiff appeared to be a very pleasant, polite, punctual and cooperative man. He appeared very friendly, animated, related warmly and had good eye contact, but was not quite disinhibited as such. He spoke in a slightly racy manner. The quality of his affect was mixed and labile. On the one hand, his affect was probably slightly elevated and mildly hypomanic. On the other hand, his affect was partly worried, flat and mildly depressed. Overall, he said the plaintiff had a mixed affective state.
172 Dr Weissman considered that it was a complex case. He considered that the plaintiff probably had pre-existing mild bipolar disorder, for which he was still taking medication at the time of injury. His condition was not severe. It was mildly troubling for him. However, at the time of the work injury, it did not prevent him from working full-time.
173 Dr Weissman considered it possible, if not probable, the plaintiff also had some form of pre-existing learning disorder and attention deficit hyperactivity disorder, although he noted that he passed VCE and was able to undertake a building construction course at TAFE. The plaintiff was working full-time in a fairly responsible position at the time of his work injury.
174 Dr Weissman noted he sustained major injury to his low back region on or about 30 May 2001. He diagnosed that the plaintiff was suffering mild to moderate mixed reactive depressive and anxiety symptoms and features consequential to his work-related injury. This formed part of his mixed affective state. The plaintiff continued to have a mild hypomanic component which was a pre-existing problem. He continued to experience mild specific areas of pre-existing cognitive deficit and problems with attention and concentration. He considered the plaintiff’s condition stabilised.
175 Diagnostically overall, the plaintiff had a bipolar disorder (pre-existing) with a mixed affective state, a combination of hypomanic features (pre-existing), and mild to moderate reactive depressive and anxiety symptoms and features (consequential to work injury).
176 When dealing with his capacity for suitable or alternative employment, Dr Weissman said his overall situation became relevant, as did the definition of suitable employment. The plaintiff had mixed affective symptoms and features as mentioned, he had side effects from his medications (psychotropic and opoid), he had impaired attention concentration due to a variety of factors including, but not limited to, his bipolar condition, chronic pain, medication side effects and certain specific cognitive problems as mentioned.
177 He stated that the plaintiff was totally incapacitated for all duties, pre-injury duties, suitable duties or alternative duties. His total incapacity for work would be further reinforced by physical and surgical factors which were, he said, outside his area of expertise.
178 The plaintiff would not be able to participate in or perform vocational, rehabilitation or job seeking assistance. The overall psychiatric prognosis was fair. He was at a high risk of aggravation of depression, anxiety or hypomania in the future. He considered him totally incapacitated for all pre-injury duties.
179 I further have had regard to the reports of Dr Leon Fail, psychiatrist, who examined the plaintiff on 25 March 2004 and 12 July 2004. He stated that the plaintiff was not suffering from any work-related psychiatric illness and there was no incapacity as a consequence.
180 He considers that the plaintiff obviously suffered from a bipolar disorder, perhaps with chronic mania, relatively well controlled with major anti-psychotic medication. He noted that he had not received any psychiatric treatment for many years and he was being prescribed Seroquel. That information is of some antiquity but is consistent with the some of other medical material provided.
181 Having considered all the material detailing the plaintiff’s psychiatric condition pre- and post injury I am not satisfied that the claimed psychiatric condition satisfies the test of serious injury.
182 In expressing his conclusion concerning work capacity Dr Weissman has combined all the features of the plaintiff’s pre-existing conditions, including bipolar affective mood disorder and attention deficit disorder, his adjustment disorder and the physical problems he had associated with his injury and the medication side effects.
183 The plaintiff suffered from bipolar disorder with a mixed affective state and a combination hypomanic features that were pre-existing. The plaintiff was functioning effectively at work, on medication prior to the claimed physical injury. I am not satisfied on the material provided from the treating doctors and the plaintiff’s own evidence that there has been any appreciable change in his bipolar disorder.
184 Whilst I accept that there is evidence to show he has difficulty dealing with his bipolar disorder due to being less active and that he has been diagnosed with depression and anxiety symptoms and those features are consequential to the work injury I do not consider that the consequences are such that they qualify for the more stringent test of “being more than serious to the extent of being severe” (s.134AB(38)(d)).
185 Having regard to the totality of the evidence I am satisfied that the plaintiff’s loss of earning capacity is due to the physical injury and not the claimed psychological or psychiatric consequences of the injury.
186 Therefore, the plaintiff’s claim in respect of serious injury consequent upon the psychiatric consequences in respect to pain and suffering and loss of earnings fails.
187 Accordingly, leave is granted to the plaintiff to bring proceedings to recover damages in respect of injury suffered by him during the course of his employment with Whittaker’s on and after 20 October 1999, and in particular on or about 30 May 2001 in respect of the claimed physical injury for both pain and suffering damages and pecuniary loss damages.
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