Jovevski v Wingfoot Australia Partner Pty Ltd [2013] VCC 996

3 The term "serious injury" is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:**

"(a) permanent serious impairment or loss of a body function; or

...

(c) permanent severe mental or permanent severe behavioural disturbance or disorder."

**4 The body function relied upon in this application, insofar as it relates to part (a) of that definition, is that of Mr Jovevski's right shoulder.

5 The term "permanent" is to be interpreted as meaning "likely to persist in the foreseeable future".[2]

6 An impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]

7 A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.[4]

8 With respect to pecuniary loss damages, leave is not to be granted by the Court on the basis that Mr Jovevski has suffered the loss of earning capacity required by s134AB(38)(b) unless he establishes that, at the date of the hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38)(e), (f) and (g).

9 Mr Jovevski submits that the pain and suffering and loss of earning capacity consequences of his right shoulder injury can fairly be described as being more than significant or marked and at least very considerable. The defendant denies this is so.

10 Further, Mr Jovevski submits that the pain and suffering and loss of earning capacity consequences of his mental or behavioural disorder can fairly be described as being more than serious to the extent of being severe. The defendant denies this is so.

11 The psychological or psychiatric consequences of any physical injury to Mr Jovevski's shoulder are to be taken into account only for the purposes of paragraph (c) of the definition of Serious Injury.[5]

12 The physical consequences of any mental or behavioural disturbance or disorder are only to be taken into account for the purposes of paragraph (c) of that definition.[6]

13 The issues to be determined in this application are:**

(a) What is the nature of any injury to Mr Jovevski's right shoulder?

(b) Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being at least "very considerable"?

(c) Has Mr Jovevski suffered a behavioural or mental disorder as a consequence of his work injury?

(d) Can such disorder be fairly described as being more than serious to the extent of being severe?

(e) Has Mr Jovevski suffered a loss of earning capacity of 40 per cent or more, when measured in accordance with the requirements of s134AB(38), as a consequence of the injury to his right shoulder or his behavioural or mental disorder or both?

**14 Mr Jovevski is aged fifty-three. He was born in Macedonia and went to school there until the age of eleven. He worked on the family farm. He came to Australia in 1982 when aged twenty-two.

15 Mr Jovevski worked for some years as a plasterer and then as a meatworker. He commenced employment with the defendant (a manufacturer of vehicle tyres) at its factory in Thomastown in January 1987, and worked there until the factory closed in mid-2002.

16 Mr Jovevski's spoken English is poor. He gave evidence at the hearing through an interpreter. He is unable to read or write in either English or his native Macedonian language.

17 Mr Jovevski had initially injured his right shoulder in February 1995 in the course of his employment with the defendant. He saw his general practitioner, Dr Gorgioski, and was off work for three or four weeks. He returned to work on light duties. He was referred for physiotherapy at that time.

18 In the period following the 1995 injury, Mr Jovevski stated that his right shoulder was stiff and he could not move it well. The pain was at the front of his shoulder and went down into the arm and into his fingers. This did not occur every day but from time to time.

19 Mr Jovevski said that between 1995 and 2001, he had pain in his right shoulder most of the time. He was restricted to lighter duties over that period. He was not required to lift heavy rolls of wire as had previously been the case, and he worked mainly using his left hand and arm. One of the machines that he operated during this period was operated by means of a pushing a button which he did with his left hand. At times he used his left hand to place wires within the machine and his right hand to push the button. He said that he thought that he would have been able to do that job indefinitely, despite his shoulder pain.

20 It was not until early 2001 that Mr Jovevski's right shoulder became a bigger problem for him. At that time his duties were changed so that he was required to perform much heavier work involving the use of both shoulders. These duties were performed in what was known as the 10/10 room. He was required to lift 12-kilogram tyre treads onto a pallet. From the time he started performing these heavier duties, his right shoulder became worse.

21 Mr Jovevski asked Dr Gorgioski for a certificate indicating that he was only fit for his previous lighter duties. He was given such a certificate and went back to work on the pushbutton machine. He was working 8 hours per day and five days per week.

22 Mr Jovevski said that if the factory had not closed down, he would have been able to stay on with the defendant until he became entitled to the pension. By this, I understood he was referring to the age pension.

23 After the factory closed down in mid 2002, Mr Jovevski tried to find other work and registered himself with Centrelink. He has been unsuccessful in finding work since.

24 Mr Jovevski told Mr Kenneth Brearley in November 2009 that he had approached a number of potential employers but with negative results. In his oral evidence, he said that he registered with Centrelink and had not made independent enquiries for potential employment. I accept that his registration with Centrelink is the extent of his efforts to find work.

25 Mr Jovevski was referred to an orthopaedic surgeon, Mr Lyons, in February 2002. He saw him on only the one occasion. He had not asked Dr Gorgioski to refer him back to Mr Lyons or to any other specialist in respect of his shoulder. Dr Gorgioski had not suggested any further referral.

26 Mr Jovevski had been referred to physiotherapy between about 2003 and 2005, although he was not too sure about these dates. He stopped in December 2005 because the claims agent ceased to fund such treatment. He has not had any physiotherapy since.

27 Mr Jovevski had been prescribed anti-inflammatories (Voltaren). In addition, he regularly took Panadol, which he was able to obtain without a prescription. In the past, Dr Gorgioski had also prescribed Panadeine Forte medication for him for a time.

28 Currently, Mr Jovevski said he would try any job that did not require heavy lifting or work above head level. He was not sure whether he would ever find such work.

29 Mr Jovevski developed depressive symptoms and was referred by Dr Gorgioski to Dr George Wahr (a psychiatrist), in 2006, four years after ceasing work.

30 Mr Jovevski said that Dr Wahr's treatment had made a difference. It improved his mood and his pain. He has continued to see him up to the present time. He is currently seeing Dr Wahr every three weeks.

31 Dr Wahr continues to prescribe Avanza (anti-depressant medication), Xanax (anti-anxiety mediation), Serenace (anti-psychotic medication), together with Nexium and Gaviscon (both used in connection with gastric and heartburn problems).

32 In March 2013, Dr Wahr took a history that Mr Jovevski was experiencing low-back pain, right shoulder pain and also neck pain, which was the worst of them. In his oral evidence, Mr Jovevski said that he could not remember saying that. In relation to his neck pain, he said that he was looking to have an injection of some sort for it. He told Mr Dooley in 2009 that neck pain had commenced about two years before then. In oral evidence, he was unsure when it commenced.

33 Mr Jovevski has not actively sought any particular treatment in respect of his shoulder.

34 With regard to his ability to socialise with others, Mr Jovevski said he was unable to recall how often he saw his friends before going off work. He said his memory was much better when he worked than it currently is.**

**35 An ultrasound of Mr Jovevski's right shoulder in March 2001 was reported as showing a probable small intra-substance tear of the supraspinatus tendon.[7] A further ultrasound in February 2003 was reported as showing pain on abduction at 90 degrees and limitation of movement beyond that. There was said to be no rotator cuff or abnormal fluid collection but two small calcific foci in the anterior supraspinatus. There does not appear to have been any radiological examinations since then.

36 Having read the reports of Mr Lyons, Professor Peter Teddy, Mr Kenneth Brearley, Mr Robin Williams, Dr Gary Davison and Mr Anthony Dunin, I consider that it is relatively non-contentious that Mr Jovevski suffered an organic injury to his right shoulder, being a relatively mild supraspinatus tendonitis and/or subacromial bursitis.**

**37 Mr Jovevski has been seen by four psychiatrists from whom reports have been tendered. In addition, reports from his general practitioner, Dr Gorgioski, deal with this issue to an extent.

38 Dr Wahr has been Mr Jovevski's treating psychiatrist for more than seven years. He has examined him and treated him on multiple occasions over that period. He considers that his psychiatric illness is that of agitated depressive reaction which, despite psychiatric treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medication, has worsened.

39 Dr Nathar has seen Mr Jovevski in February 2010, May 2012 and April 2013 at the request of his solicitors. He concluded that Mr Jovevski was suffering from two inter-related psychiatric disorders. Firstly, he had a moderately severe major depressive illness and secondly, a moderately severe Chronic Pain Disorder.

40 Dr Dush Shan examined Mr Jovevski in August 2009, April 2012 and May 2013 at the request of the defendant's solicitors. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought that condition was mild and difficult to distinguish from his naturally emotional personality.

41 Dr Wendy Triggs examined Mr Jovevski on 22 October 2010 at the request of the defendant's solicitors. She concluded that he was suffering from a persistent Pain Syndrome and also Major Depression which she thought, at that time, was in partial remission.

42 Dr Gorgioski has referred persistently in his reports to Mr Jovevski having a Post-Traumatic Stress Disorder ("PTSD"). Although Dr Gorgioski has no doubt seen Mr Jovevski on many occasions, I am unable to comprehend how a diagnosis of this condition has been made. As I understand the evidence, there was no traumatic episode and certainly no genuine fear of death or serious traumatic injury. I am not satisfied that Mr Jovevski has a PTSD.

43 The diagnoses of Dr Wahr and Dr Triggs are not so dissimilar. When Dr Triggs saw Mr Jovevski in October 2010, she thought his condition was partially in remission. She has not seen him since. Dr Wahr, on the other hand, has seen Mr Jovevski on numerous occasions since that time, and considers that his condition has in fact worsened. Dr Nathar's opinions are based on examinations as recently as April of this year, and are not dissimilar to those of Dr Wahr.

44 I accept the evidence of Dr Wahr that Mr Jovevski is suffering from an agitated depressive reaction. The label attached by Dr Nathar is one of moderately severe major depressive illness combined with a moderately severe Chronic Pain Disorder. Dr Triggs uses the expression "permanent Pain Syndrome and Major Depression". I consider that there is little practical difference between these diagnoses.**

**45 I accept that Mr Jovevski suffers from pain and restriction of movement in his right shoulder. However, the problem facing him is that he injured that shoulder in 1995, some six years before the more recent complaints the subject of this application.

46 Mr Jovevski's evidence was that following the February 1995 injury, he had been off work for three to four weeks and then returned to work on light duties thereafter. He admitted that he had not been pain free but that he had been able to work those light duties. It was only when he had a change of those duties in early 2001 involving heavier work, that his shoulder became more painful.

47 Mr Jovevski returned to work on restricted duties in July 2001 and continued working up until August 2002 when he accepted a redundancy package. The defendant's factory was about to close and move to a new location, which did not suit him.

48 From the time Mr Jovevski started work with the defendant or its predecessors in 1987, he had performed very heavy manual labour. This frequently required him lifting rolls of wire weighing between 25 and 40 kilograms.

49 Following the 1995 injury, Mr Jovevski describes the pain as being at the front of his right shoulder and going down the right arm to the fingers. This did not occur every day, but from time to time. He said that between 1995 and 2001, he had pain in his shoulder most of the time. He was performing restricted and lighter duties at work. He was able to do that work despite his shoulder pain.

50 For a relatively short period in 2001, Mr Jovevski took on more physical duties. He was required to lift weights of up to 12 kilograms onto a pallet. At that time, he saw Dr Gorgioski, who gave him a certificate indicating that he was fit for his previous lighter job. From that time, he resumed his previous duties operating the pushbutton machine. He worked 8 hours per day and five days per week.

51 With regards to overtime, he had not been given any overtime after 1995. There was no change to this after 2001.

52 Critically, Mr Jovevski candidly conceded that if the factory had not closed down in 2002, he probably would have stayed working until he reached pension age; that is, he would have been able to perform the same duties as he had been performing for the six years or so before 2001. I consider that, in giving that evidence, he was referring to what he believed was his physical capability of performing that work.

53 Having seen the specialist, Mr Lyons, in February 2002, Mr Jovevski did not request Dr Gorgioski for any further referral.

54 Professor Bittar saw Mr Jovevski in January 2013 at the request of his solicitors. He concluded that, at that time, his problems were neck pain and right brachialgia (arm pain). He made no reference to any shoulder injury as such. This application is not made in relation to a neck injury.

55 The medical evidence is essentially non-contentious that Mr Jovevski did suffer an injury to his right shoulder at work in 1995 and that it was probably aggravated in 2001.

56 Professor Teddy opined that the history described (which included that relating to periods before and after 2001) and the temporal sequence of events would seem to link Mr Jovevski's shoulder injury with "the accident" and duties described at work. Which accident he was referring to is not entirely clear. It is not possible to gain much assistance from his report as to the degree of aggravation or worsening of Mr Jovevski's condition as a consequence of the work performed by him in 2001.

57 In a case involving an aggravation of a pre-existing injury, I am required to make a comparison of Mr Jovevski's condition immediately before his 2001 change to heavier duties and his condition thereafter and, in particular, at the present time. I am required to make an assessment of the extent of the additional permanent impairment of the relevant body function - in this case, the function of his right shoulder. If that additional impairment was not "serious", then leave must be refused.[8]

58 I accept that Mr Jovevski's work in the period immediately following the 2001 change to heavier duties did produce an increase in the level of his symptoms of pain which led to his referral to Mr Lyons and further radiological investigations. I accept that the increase in symptoms was of some real significance. However, I am not satisfied that that exacerbation was permanent. Rather, it is clear from Mr Jovevski's evidence that, whilst his pain may have continued at a higher level, he returned to work and was able to perform his earlier restricted duties as he had previously done and I accept that he was likely to have been able to do so until normal retirement age had the defendant's factory not closed.

59 Accordingly, I am not satisfied that the pain and suffering consequences of the 2001 aggravation of Mr Jovevski's shoulder injury could fairly be described as permanent and as more than significant or marked or as being at least very considerable.**

**60 Dr Wahr and Dr Nathar have seen and examined Mr Jovevski relatively recently and have concluded that he has, from a psychiatric perspective, no capacity at all for work.

61 When Dr Triggs examined Mr Jovevski in October 2010, she noted that it had been eight years since the re-injury of his shoulder and that he had not worked in that time. She believed that it was unlikely that he would work again, noting that he was illiterate in both his primary language and in English. She was not asked to examine him again.

62 Dr Shan concluded that Mr Jovevski was capable of working both in his pre-injury duties and in what he described as suitable alternative work.

63 It is often the case that it is difficult to come to a conclusion as to whether the opinions of one or some doctors should be preferred over opinions of others, and this is especially so in the case of evidence concerning the extent and consequences of psychiatric injury. Often, as here, there are few, if any, objective pointers to assist the Court.

64 Notwithstanding, I prefer and accept the evidence of Dr Wahr largely because of the frequency of examinations conducted by him of Mr Jovevski over the past seven years. Dr Wahr has been intimately involved in the prescription of anti-depressant, anti-anxiety and psychotropic medication for him. He has noted that, notwithstanding some improvement initially, his condition has since deteriorated.

65 On the basis of Dr Wahr's evidence, which I consider is, to a large extent, backed up by that of Dr Nathar and Dr Triggs, I find that the nature of Mr Jovevski's psychiatric injuries are such that he is currently unable to work in any capacity and that is likely to be the case for the foreseeable future.

66 I consider that the consequences of Mr Jovevski's psychiatric injury are:**

(a) an inability to return to even the lighter duties in which he was engaged previously;

(b) a need for significant levels of anti-depressant, anti-anxiety and psychotropic medication;

(c) an inability to cope with a degree of pain from his shoulder that he was more likely to have been able to cope with but for his psychiatric injury;

(f) reduced concentration to the extent that Dr Wahr had advised him not to drive a motor vehicle;

(k) a need for ongoing psychiatric treatment in the form of supportive psychiatric psychotherapy and monitoring of psychotropic medication.

67 Further, in relation to the degree to which the 2001 exacerbation has contributed to the psychiatric injury, I accept the explanation of Dr Nathar that:

"... but for his physical injuries sustained in 2001, with some initial contribution from the original mild right shoulder injury in 1995 in the course of his work for Pacific Dunlop, he would not have developed his secondary psychiatric reactions. I have also explained previously that he is essentially a poorly educated, simple minded man (this is not meant to be derogatory but is, I believe, an accurate description). He was always a hard worker, rather passive in his personality and he just appears not to have the psychological fortitude or mindedness to cope with the major changes in his physical status ultimately resulting in total work incapacity. He cannot cope with the pain and I believe that all these factors would need to be considered with understanding how he has coped so poorly with his physical problems and developed this moderately severe psychiatric reactions."[9] (sic)

**68 Put another way, I accept that Mr Jovevski's depressive disorder was largely brought about or triggered by the increase in his shoulder pain in early 2001. He did not have the psychological fortitude to cope. His depressive disorder has not improved but has worsened.

69 No doctor expressed the view that Mr Jovevski was malingering. His credit was not challenged during the hearing of his application. I note from the index to the Defendant's Court Book that it is in possession of video surveillance of Mr Jovevski. No surveillance evidence was tendered and I infer that such material would not have advanced the defendant's case.

70 I consider that the consequences set out above are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.

71 The defendant referred me to the recent decision of Meadows v Lichmore Pty Ltd.[10] That decision dealt with the issue of when it was necessary for the claimant to disentangle physical and psychological consequences of an injury. The facts there were quite different to those before me. Notwithstanding, I have, in reaching my decision that Mr Jovevski has suffered a serious injury as defined in paragraph (c) of the definition, disregarded the physical symptoms of the shoulder injury and focussed upon the symptoms that I find flow solely from his depressive illness.**

72 As discussed above, I am satisfied that Mr Jovevski is unable to work as a consequence of his psychiatric injuries. I accept the evidence of Dr Wahr, Dr Nathar and Dr Triggs on that issue. Accordingly, I am satisfied that he has suffered a loss of earning capacity of at least 40 per cent when calculated in accordance with sub-paragraphs (e), (f) and (g) of s134AB(38) of the Act.

**73 For the reasons set out above, I am satisfied that Mr Jovevski has suffered a "serious injury" as defined in part (c) of the definition of that term in s134AB (37) of the Act.

74 There will be leave pursuant to s134AB(16)(b) of the Act for Mr Jovevski to commence a proceeding to recover pain and suffering damages and loss of earning capacity damages in respect of injuries suffered by him in the course of his employment with the defendant in or about 2001.

75 I shall hear the parties in respect of any consequential orders sought.

[1] Section 134AB(19)(a)

[2] Barwon Spinners Pty Ltd & Ors Podolak [2005] VSCA 33 at paragraphs [18] - [19]

[3] Section 134AB(38)(c)

[4] Section 134AB(38)(d)

[5] Section 134AB(38)(h)

[6] Section 134AB(38)(i)

[8] Petkovski v Galletti [1994] 1 VR 436 at page 443; Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraph [19]; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249

[10] [2013] VSCA 201