Mahdi v Marble Design

The Plaintiff's Medical Evidence

1. The plaintiff tendered a bundle of medical reports, together with the clinical notes of the plaintiff's General Practitioner, Dr Khalid and Dr Chin. It is unnecessary to refer to the bulk of the materials, because the position is adequately set out in the reports that I will refer to.
2. The orthopaedic discharge referral from Liverpool Hospital dated 30 May 2012 recorded that the plaintiff suffered a 10 cm transverse laceration anterolaterally above the right ankle joint, a segmental distal fibula fracture and fractured medial malleolus of the right ankle. The right ankle dislocation was reduced in the Emergency Department. The plaintiff underwent an angiogram when his blood flow did not return to normal. In the left ankle he suffered a Webber B fracture. He sustained a comminuted intra-articular fracture of the distal radius in his left wrist with a 5 mm puncture wound over the ulna/volvar aspect. He was admitted under the care of Dr Chin, an Orthopaedic Surgeon and underwent surgery on 11 May 2012. The injuries to his right ankle, left ankle and left wrist were the subject of open reduction and internal fixation. He was observed in relation to some cardiac symptoms following the operation. He was discharged wearing cam boots bilaterally and able to weight bear on his left leg but not on his right leg. He was able to weight bear as tolerated with respect to his left wrist. His progress with physiotherapy was slow prior to his discharge.
3. On 12 June 2012 Dr Chin reviewed the plaintiff four weeks after the first surgery. Dr Chin noted that the plaintiff was discharged in a wheelchair to be non-weight bearing for six weeks. Dr Chin noted the wounds to be healing. The plaintiff was referred to physiotherapy and asked to return in four weeks. The plaintiff was referred to an MRI of his right knee that was now clicking and painful. Dr Chin noted that it was possible that he had sustained a twisting injury to his right knee at the time of the injury.
4. On 28 August 2012 the plaintiff was reviewed by Dr Chin. He reported ongoing issues with his right knee and right ankle. Dr Chin observed a good range of motion and minimal pain in his left ankle and left wrist. He was referred for MRI scans on his knee and right ankle.
5. On 25 September 2012 the plaintiff was reviewed by Dr Chin. The MRI scan of his right ankle showed peroneal tendonitis. Dr Chin noted the left wrist fracture was uniting and that he did not have any problems in his left ankle. He was favouring his left hand side when walking and walking very gingerly on the right hand side.
6. On 23 April 2013 the plaintiff was reviewed by Dr Chin. Dr Chin noted some right ankle osteoarthritis which was post-traumatic and opined that the plaintiff was probably suffering some irritation from the plates and screws inserted into his various fracture locations. Dr Chin noted severe post-traumatic osteoarthritis on the x-ray. Dr Chin thought that the plaintiff would require an ankle fusion, bone graft, removal of the hardware and fibular osteotomy of the right ankle. Dr Chin believed that removal of the hardware in his left ankle may assist him. Dr Chin stated that the ankle fusion would require three months non-weight bearing followed by another three months of rehabilitation, allowing a return to manual work in six months. The effect of the ankle fusion would be to lose all ankle movement, which would make walking up and down inclines and climbing ladders difficult for the plaintiff. Dr Chin recorded that the plaintiff wanted to go ahead with the operation.
7. On 27 August 2013 the plaintiff was seen by Dr Tim O'Carrigan, an Orthopaedic Surgeon, on referral from his General Practitioner for a second opinion. The plaintiff described a problem in his right ankle as involving ongoing severe pain associated with swelling to the point that he could not weight bear on it and could not return to work. On examination by Dr O'Carrigan the plaintiff demonstrated difficulty weight bearing on his right ankle and numbness in the ankle joint itself in the distribution of the superficial peroneal nerve. Dr O'Carrigan observed minimal swelling and a pretty good range of ankle movement. Dr O'Carrigan noted some definite post-traumatic arthritis in his ankle with the probability that there was some articular surface damage that was done at the time of the traumatic fracture dislocation which was quite a severe injury. Dr O'Carrigan opined that his range of movement was fairly good considering the nature of the injury. Dr O'Carrigan expressed concerns about how much pain relief the plaintiff would get from an ankle fusion given his range of movement and the extent of the minimal arthritic changes on his plain x-ray. Dr O'Carrigan opined that his pain dysfunction was a lot worse than his x-ray would suggest and that it was probable that an ankle fusion would at best only provide partial pain relief. Dr O'Carrigan opined that the plaintiff had a very mobile joint considering and that he would lose all of that movement with an ankle fusion. Dr O'Carrigan recommended that he not proceed with an ankle fusion at the time noting that it may well be necessary in the future. Dr O'Carrigan recommended referral to a pain management specialist for assessment. He also recommended the consideration of radio frequency treatment which could be helpful to alleviating pain caused by the superficial peroneal nerve. Dr O'Carrigan recommended adjustments with his current medication regime to control some of those symptoms. Dr O'Carrigan agreed that the removal of the hardware would assist him particularly because he could not undergo an MRI scan with the hardware in situ. Dr O'Carrigan recommended an ankle arthroscopy to probe the syndesmosis. If the ankle arthroscopy showed arthritic changes were minimal in his tibiotalar joint and the ankle syndesmosis instability then he recommended a syndesmosis reconstruction at the time of the hardware removal.
8. On 11 February 2014 the plaintiff was reviewed by Dr Chin. Dr Chin noted that all the fractures had united successfully. The plaintiff had post-traumatic ankle arthritis on the right hand side and hardware irritation in both ankles. In his left wrist he had post-traumatic carpal tunnel symptoms. The plaintiff expressed the view that he was not ready for an ankle fusion, because that would be permanent and he would still like to have movement in his ankle. The plaintiff agreed to further surgery for a removal of the hardware and an open carpal tunnel decompression and synovectomy of his left wrist.
9. On 2 September 2014 the plaintiff was reviewed by Dr Chin, two weeks after the removal of the hardware and open carpal tunnel decompression. The plaintiff reported some numbness along the medial nerve territory and the right forefoot. There was a small area of wound dehiscenc on the right ankle.
10. On 16 September 2014 the plaintiff was reviewed by Dr Chin, following the removal of the hardware in his fracture sites. Dr Chin described a poor area of healing that was secondary to the initial injury of his right ankle. The original injury may have interfered with some of the blood supply to that area. His right ankle x-rays continued to demonstrate post-traumatic arthritis. Dr Chin opined that if his right ankle became more consistent to the point where he was having difficulty walking then ankle arthrodesis would be the operation of choice. Dr Chin noted that the open carpal tunnel decompression was undertaken but that there was some residual numbness along the median nerves of the tip of the fingers on the left hand.

The Reports of Dr Habib

1. On 26 May 2016 the plaintiff attended a medico-legal consultation with Dr Sheikh Habib. Dr Habib produced a report dated 27 May 2016. The content of that report can be summarised as follows. The plaintiff complained of left wrist pain and stiffness, a severely painful right ankle and a painful and somewhat stiff left ankle as well as a painful right knee. He required assistance from his wife for self-care and dressing and had employed someone to undertake outdoor maintenance at his home. Dr Habib noted that the plaintiff also complained of low back pain, bilateral knee pain mostly at night, bilateral ankle pain and an inability to walk properly, in that he tended to walk on the outer part of the sole of his right foot.
2. On examination, Dr Habib noted the plaintiff walked with a heavy and antalgic gait (walking to avoid pain) with his right foot acutely inverted (tilted parallel to the frontal plane so that the plantar surface of the foot faces the mid line of the body). He noted some soft tissue swelling of the left wrist as well as tenderness and some restriction in movement compared to the right wrist. Dr Habib observed the plaintiff to stand and walk on the outer border of his foot, reporting severe pain if he put his foot "square to the ground". There was swelling with evidence of synovitis in the gutters of the right ankle. The right ankle and foot movements were moderately restricted especially dorsiflexion and eversion. Dr Habib recorded tenderness at the lower end of the fibula and distal tibiofibular joint in the left ankle. The ankle movements and hind foot were restricted. The plaintiff displayed moderate guarding in the low back and there was tenderness in the lumbar spine at L5/S1 with some restriction of lower back movement.
3. Dr Habib opined that the plaintiff suffered serious multiple injuries at work being a severe compound fracture dislocation of the right ankle, compound comminuted fracture of the left wrist and fracture of the distal end to the left fibular following the distal tibiofibular joint, a severe strain of the back and right knee trauma. The plaintiff was left with severe post-traumatic degenerative arthropathy of the right ankle. The plaintiff had ongoing symptoms in the left ankle, left wrist and low back, with a resolved right knee injury. Dr Habib opined that the nature and severity of the fracture dislocation of the right ankle had left severe degenerative changes. The plaintiff was unable to put his foot squarely on the ground due to severe pain in the ankle joint. The plaintiff reported reluctance to undergo an ankle fusion, which Dr Habib thought was inevitable. Dr Habib thought it was reasonable to consider further replacement surgery and if that failed then to consider the ankle fusion. This would result in a shortening of the right leg and a leg length discrepancy. It was likely that the left wrist fracture would result in degenerative wrist joint changes and Dr Habib noted some features of osteoarthritis already being present. Dr Habib opined that the plaintiff walked with an altered gait predominantly as a result of the problems with his right foot and ankle and that this was likely to continue to exacerbate right knee and low back problems.
4. Dr Habib opined that the plaintiff was permanently unfit for his pre-injury employment as a forklift operator or labourer. Dr Habib believed at the time of the consultation he was not fit for any work. Dr Habib opined that his prognosis was for deteriorating degenerative changes in the left wrist and possibly the requirement for an ankle arthrodesis. A right ankle arthrodesis was likely to result in a stable pain free ankle joint. Dr Habib opined that the plaintiff was unfit for work at the time of the report because he had not been referred to a pain management specialist or had the ankle arthrodesis completed. The plaintiff was fit for a few hours of sedentary employment two to three days a week with the following restrictions: 1. standing or walking for longer than short periods and the need for change of posture; 2. sitting for long periods without change of posture every 15 to 20 minutes; 3. standing or walking on uneven surfaces; 4. bending or lifting more than 5 kgs from waist height; 5. repetitive use of the left hand or thumb; 6. squatting or kneeling.
5. On 17 May 2018 the plaintiff returned to Dr Habib for a follow-up medico-legal consultation. Dr Habib produced a report dated 25 May 2018. The content of that report can be summarised as follows: The plaintiff reported that he was partly independent in his personal care and hygiene with some help from his wife. He told Dr Habib that he could stand or sit for short periods in the kitchen to help his wife with the preparation of food but had difficulty in standing for long periods of time due to bilateral ankle pain or sitting for long periods of time which exacerbated his low back pain. The plaintiff's complaints at the time of the examination were left wrist pain and stiffness that increased with continued use of the left thumb. The plaintiff reported numbness in the lateral three digits following the median nerve decompression for carpal tunnel syndrome as well as some numbness in the tips of his two medial digits. The plaintiff also reported low back pain, left knee pain on kneeling and right ankle pain. The plaintiff complained of right ankle pain and an inability to put his foot squarely on the ground. Dr Habib noted that when he stood or walked he transferred his weight onto the lateral part of his right foot. The plaintiff also had continuing left ankle pain and stiffness.
6. On examination, Dr Habib noted moderate restriction in the movements of his left wrist, left thumb and forearm rotation. Dr Habib did not note any abnormality in the examination of his left knee. The plaintiff stood weight bearing on the outer border of his right foot and displayed restricted movement in both ankles. The findings on the examination of his low back were unchanged from the previous consultation.
7. Dr Habib opined that the plaintiff's long term prognosis was uncertain. The intra articular nature of the fractures in the ankles and wrists, and particularly the widening of the syndesmosis and decreased talo fibular joint space in the right ankle would result in the development of severe premature degenerative changes or osteoarthritis. Such a complication was frequently very painful and would necessitate consideration of an ankle joint arthrodesis. Dr Habib noted osteoarthritic changes in the left wrist that were likely to deteriorate.
8. Dr Habib opined that the plaintiff was permanently unfit for his pre-injury employment or any other physically demanding labouring jobs. Dr Habib believed the plaintiff was fit for sedentary duties only with the following restrictions: 1. no long hours of work (recommended two to three hours a day, three days a week, preferably on alternate days); 2. long periods of standing or walking (recommended change of posture every 20 minutes); 3. no uneven surfaces or use of stairs or step ladders; 4. lifting restrictions 2 to 4 kgs, avoiding repetitive lifting; 5. avoiding repetitive use of the left hand digits; 6. pulling or pushing heavy static objects.
9. Dr Habib described the plaintiff's injuries as severe and the likelihood that they would be prematurely degenerative. Dr Habib recommended ongoing physiotherapy with the focus being the provision of a supervised programme to maintain mobility and strength.

The Reports of Dr Powell

1. On 22 September 2016 the plaintiff attended a medico-legal consultation at the request of the defendant with Dr Richard Powell, Orthopaedic Surgeon. Dr Powell produced a report dated 20 October 2016. The contents of that report can be summarised as follows.
2. The plaintiff complained of stiffness and restriction in range of motion and subjective loss of strength in the left wrist. He had pain over the volar aspect of the distal radius which was constant and sharp in character. He also had some numbness on the ulnar border of the wrist. The plaintiff expressed his major concern as being in relation to his right ankle. He reported constant pain affecting the ankle in a generalised fashion which was more significant on the medial side. The pain was sharp in character with background ache. It was accompanied by swelling, clicking and stiffness. The plaintiff reported difficulty negotiating sloping and uneven ground, telling Dr Powell that he tendered to walk on the lateral border of the foot. In the left ankle the plaintiff reported intermittent pain of the lateral aspect but was not aware of any significant stiffness or restriction in range of motion, instability or century change. The plaintiff reported taking medications including anti-inflammatories and Tramadol, attending the gym on a weekly basis and undertaking an exercise programme at home. The plaintiff had experienced some low back pain in 2004 without any specific precipitating incident. The pain was constant and accompanied by some stiffness.
3. Dr Powell reported the plaintiff to be compliant and co-operative throughout the course of the examination. He was observed to be in mild discomfort at times during the assessment. On examination, Dr Powell noted a restricted range of motion in the left wrist and thumb with evidence of a peripheral nerve lesion. Dr Powell reported the plaintiff as having an unusual gait incorporating antalgic components bilaterally and some protected weight bearing. He tendered to walk on the lateral border of the right foot which was abducted (facing outwards) and slightly inverted. On the left side he avoided heel strike and explained that he was diagnosed with plantar fasciitis a few days previously. In the right ankle there was diffuse bony tenderness to palpation of all elements of the ankle and mild generalised swelling. The range of motion was restricted and his foot remained fairly supple. On the left ankle there was no focal tenderness to palpation but some pain from the plantar fascia. He had a normal range of motion in the left ankle and it was stable. Dr Powell did not observe anything of note of the examination of the plaintiff's knees. There was diffuse tenderness to palpation of the posterior aspect of the lumbar spine, without muscle spasm. The range of motion was restricted. Sciatic stretch tests were negative.
4. Dr Powell opined that the plaintiff's condition was consistent with the history provided. Based on his examination, Dr Powell believed that the plaintiff had reached his maximum stage of medical improvement.
5. On 21 September 2017 the plaintiff attended a refresher medico-legal consultation with Dr Powell. Dr Powell produced a report dated 10 October 2017. The contents of that report can be summarised as follows.
6. The plaintiff reported that there had been no significant change in his left wrist, that his lower back symptoms were worse including constant pain and that there had been no change in his left ankle symptoms. The plaintiff reported his right ankle symptoms were worse particularly with marked stiffness, restriction in range of motion and difficulty walking on sloping or uneven ground.
7. Dr Powell noted the plaintiff was compliant and co-operative. Dr Powell opined that there was no suggestion of over-reaction or exaggeration. The plaintiff was observed to be in mild discomfort at times during the assessment. On examination, Dr Powell noticed a reduced range of motion in the left wrist. The plaintiff was tender to palpation over his lower back without evidence of muscle spasm. His range of movement was restricted but his neurological examination of the lower limbs was normal. The plaintiff had a normal range of motion in the left ankle and it was stable. On examination of the right ankle Dr Powell observed a limp with a shortened stance phase on the right side. The plaintiff had a tendency to walk on the lateral border of the foot. He had a varus position of the hind foot. He was unable to perform a single leg heel raise. Dr Powell observed moderate generalised swelling around the ankle and some reduced sensation and tenderness to palpation over the medial malleolus and lateral malleolus with a restricted range of motion. Dr Powell opined that the plaintiff had a reasonable prognosis in relation to his left wrist and left ankle. The prognosis in relation to the right ankle was less favourable. Dr Powell opined the plaintiff had developed significant post-traumatic osteoarthritis with chronic pain and marked stiffness and restriction in range of motion. This had led to an altered gait pattern and aggravation of a lumbar spine condition. Dr Powell opined his right ankle would remain a source of ongoing symptoms and may require further surgery in the future in the form of an arthrodesis. It was likely that the right ankle condition would deteriorate over time.
8. Dr Powell opined that the plaintiff would never return to his pre-injury duties and recommended permanently modified duties. His restrictions would include avoidance of prolonged standing, walking, repetitive bending, lifting or twisting movements. The plaintiff should avoid stairs and any work in elevated areas. The plaintiff is best suited to work of a sedentary nature and to be able to alternate his tasks where possible and have the opportunity for regular rest breaks. Dr Powell recommended a return on reduced hours of four to five hours per day on four to five days per week recommending that his hours be increased in a gradual fashion as tolerated. Dr Powell was of the opinion that the plaintiff was unlikely to regain full pre-injury hours and that given the extensive list of restrictions and limited transferrable skills that alternate employment opportunities were limited.

The Reports of Dr Keller

1. On 26 September 2017 the plaintiff attended a medico-legal consultation at the request of the defendant with Dr Andrew Keller. Dr Keller produced a report dated 26 September 2017, the contents of which can be summarised as follows.
2. Dr Keller noted that the plaintiff, in September 2016, had his work capacity upgraded to allow three hours of work per day, two days a week with no lifting over 2 kgs, sitting for 60 minutes or standing for 30 minutes. That assessment was current at the time of the consultation. The plaintiff reported that he had been looking for work but had no work trials as yet. The plaintiff reported constant right ankle pain at a severity of between 4 and 9 out of 10, constant wrist pain rated at 6 out of 10 and at the time of consultation, no left ankle pain.
3. Dr Keller reported the plaintiff to be pleasant and co-operative throughout the interview and that he was assisted by an interpreter. Dr Keller observed the plaintiff to walk unassisted with a limp putting most of his weight on his right leg but particularly on the outside of his right foot. The plaintiff was described as sitting comfortably throughout the consultation that lasted about 40 minutes. Dr Keller observed restricted movement in the plaintiff's left wrist together with reported reduced sensation to light touch. Dr Keller observed a full range of motion in the neck, shoulders and lumbar spine. Dr Keller observed reduced movements in both ankles and sensation to light touch was reported around the surgical scars but normal in both sets of toes. The plaintiff stated that he was unable to walk normally.
4. Dr Keller opined that the plaintiff had mild restriction in motion associated with the left wrist, moderate to severe restriction of motion in the right ankle and moderate restriction of motion in the left ankle. Dr Keller's prognosis was for permanent restriction of motion in these joints with no likelihood of full recovery in the future. Dr Keller did not believe that the plaintiff would benefit from any ongoing passive physical therapy.
5. Dr Keller opined that the plaintiff had persisting pain in the left wrist and right ankle and restriction of movement in the left wrist and both ankles as a result of the incident at work. He was permanently restricted from returning to heavy manual work or work involving constant standing or walking. Dr Keller opined that the plaintiff was permanently unfit for return to work as a labourer or forklift driver. Dr Keller opined that the plaintiff was able to work suitable duties for three to four hours a day, five days a week. He should avoid sitting for more than 60 minutes, standing or walking for more than 30 minutes and lifting more than 2 kgs. Dr Keller specified the plaintiff needed a five minute break out of the car for every 30 minutes of driving and was restricted to driving automatic vehicles. The plaintiff accepted that he could agree to attempt light or sedentary work with these restrictions.
6. On 30 April 2019 the plaintiff attended a refresher medico-legal examination with Dr Keller at the request of the defendant. Dr Keller produced a report dated 8 May 2019. The contents of the report can be summarised as follows.
7. The plaintiff reported no new injuries, further surgery or major treatment since the last examination by Dr Keller. He had continued to receive physiotherapy twice a week and was on medication including over-the-counter and prescription pain killers. The plaintiff continued to be certified to work light duties, three hours a day, two days a week with no lifting over 2 kgs, standing for 15 minutes or driving for more than 30 minutes. The plaintiff reported continuing to look for work without success.
8. Dr Keller again reported the plaintiff to be pleasant and co-operative throughout the interview which he attended with an interpreter. Dr Keller observed the plaintiff to walk unassisted but with a limp and favouring the outside edge of his right foot. The plaintiff was described as sitting comfortably throughout the consultation that lasted approximately 40 minutes. On examination, Dr Keller noted a full range of movement in the neck, shoulders and elbows. He had limited movement in his left wrist and some reported reduced sensation in the left ring and little fingers. There was a full range of motion in the lumbar spine and he could squat to 50% of normal. There was a reduced range of ankle motion in both ankles with movements of the toes being normal. The plaintiff reported experiencing significant swelling in his right ankle particularly overnight.
9. The plaintiff believed that he could not exceed three hours a day, two days per week of work. Dr Keller opined that the plaintiff had mild restriction of motion in the left wrist, mild restriction of motion in the left ankle, moderate restriction of motion in the right ankle. Dr Keller opined that the plaintiff's condition had stabilised and that there was no prospect for a full recovery with Dr Keller stating that the plaintiff was likely to have permanent restrictions. Dr Keller recommended that the plaintiff should manage his symptoms with analgesics and long term exercise. Dr Keller thought it would be beneficial if the plaintiff could wean himself off opiate analgesia as tolerance could have been responsible for some of his more wide spread pain complaints. Dr Keller did not believe that he would be receiving any lasting benefit from further passive physical treatment.
10. Dr Keller opined that the plaintiff was permanently unfit for work as a forklift driver or as a labourer. It was reasonable that the plaintiff was totally unfit for work during some years following his injury. Dr Keller opined that in the future, the plaintiff would have the capacity to work up to three hours per day, five days a week doing light, sedentary duties with postural changes required. The plaintiff needed to avoid lifting over 2 kgs, avoiding standing or walking more than 30 minutes and avoiding driving for 30 minutes before taking a short break.

The Reports of the Rehabilitation Provider

1. The defendant relied on a selection of reports from i-Health Concepts, the rehabilitation provider to whom the plaintiff was referred by his workers compensation insurer.
2. The plaintiff underwent a functional capacity assessment on 27 May 2016. The rehabilitation consultant, Ms Stephanie Padilla prepared a report dated 20 June 2016, the content of which can be summarised as follows.
3. Ms Padilla assessed the plaintiff as having the following functional restrictions for 4 hours per day work for 3 days per week: 1. frequent lifting up to 3kg at waist height; 2. frequent lifting up to 3kg from waist to shoulder height; 3. sitting and standing up to 20 minutes; 4. walking up to 20 minutes with breaks; 5. standing up to 30 minutes - dynamically; 6. pushing/pulling up to 12 kg.
4. The assessment also indicated that the plaintiff should avoid the following activities: 1. overhead activity with a load; 2. unilateral balancing; 3. excessive walking - greater than 20 minutes; 4. frequent stair climbing; 5. repetitive left hand gripping/ lifting; 6. squatting and kneeling.
5. The plaintiff was asked to undertake a number of tasks to assess his ability to undertake movements and activities related to his disabilities. The plaintiff was noted to be co-operative and to attempt all tasks required of him. The plaintiff was observed to have an antalgic gait with an inverted foot position. He was not asked to perform balance tasks because of his inability to weight bear on the right foot alone. He was noted to be deconditioned.
6. Ms Padilla recommended that the plaintiff drive only an automatic motor vehicle.
7. The plaintiff underwent a vocational assessment on 3 June 2016. The rehabilitation consultant, Ms Laila Ayshan, produced a report dated 20 June 2016. The contents of that report can be summarised as follows.
8. As at the date of the report the rehabilitation provider identified three possible occupations for the plaintiff, being: 1. Customer Service Officer earning $1,025 per week; 2. Process Worker (light) earing $758 per week; 3. Assembly Worker earning $893 per week.
9. The plaintiff's General Practitioner, Dr Khalid, was contacted and opined that the plaintiff was unfit to perform any of these positions for the suggested 12 hours per week.
10. The plaintiff was co-operative and well prepared for the vocational assessment. The plaintiff reported suffering pain between 7 to 9 out of 10 and accompanied by discomfort. He suffered from low back pain, bilateral leg, knee and back pain as well as swelling in his legs and hand. His symptoms affected his sleep and general wellbeing. He experienced difficulty with cleaning the house and paced himself to do anything required, but in general his wife performed all household tasks.
11. The plaintiff reported suffering from a number of psychological symptoms including lack of motivation, irritability and anhedonia.
12. The plaintiff reported a number of restrictions consistent with the medical reports which I will not repeat. Ms Ayshan observed a number of those restrictions throughout the assessment.
13. Ms Ayshan noted that the plaintiff reported his English skills as 'basic' and that he thought that they were a barrier to his return to work. He reported basic computer skills. The plaintiff thought that he did not have the ability to job seek independently.
14. Ms Ayshan opined that the plaintiff's transferable work skills made him suited for the occupations identified above.
15. Ms Ayshan recommended that i-Health Concepts conduct a medical case conference with the plaintiff and Dr Khalid to increase the plaintiff's work capacity from zero to 12 hours per week, that the plaintiff continue to seek medical treatment, that i-Health Concepts provide the plaintiff with job seeking skills and that the plaintiff be referred for vocational counselling. It was intended that the plaintiff's position be reviewed on 18 August 2016.
16. On 27 February 2017 Ms Delilah Ayshan of i-Health Concepts produced a progress report for the workers compensation insurer covering the period 1 February 2017 to 28 February 2017 (described as progress report 3). The plaintiff was at that time certified fit to work 3 hours per day for 2 days per week, with the following restrictions: 1. lifting or carrying capacity 2kg; 2. sitting tolerance - as tolerated; 3. standing tolerance - 15 minutes; 4. pushing/pulling ability - as tolerated; 5. no bending; 6. driving 30 minutes followed by a rest.
17. It was noted that i-Health Concepts were cold calling employers to seek jobs on behalf of the plaintiff. Ms Ayshan recommended that the position be reviewed on 22 March 2017.
18. On 30 June 2017 Ms Delilah Ayshan of i-Health Concepts produced a progress report for the workers compensation insurer covering the period 1 June 2017 to 30 June 2017 (described as progress report 7). The plaintiff's restrictions were unchanged from the February progress report. The report noted that on 6 June 2017, 16 June 2017, 23 June 2017 and 30 June 2017 that i-Health concepts conducted cold calling of prospective employers on behalf of the plaintiff and assisted the plaintiff to submit a number of job applications.
19. On 31 August 2018 Ms Rayan Maarabani of i-Fit Rehab produced a progress report for the workers compensation insurer covering the period 1 August 2018 to 31 August 2018 (described as progress report 17). The plaintiff's restrictions were unchanged from the February progress report. On 22 August 2018 the plaintiff's treating physiotherapist opined that the plaintiff could work 5 hours per day for 3 days per week with the following restrictions: 1. lifting/carrying capacity 6 kgs; 2. sitting tolerance - as tolerated; 3. standing tolerance - 45 minutes; 4. pushing/pulling - avoid doing so through left wrist; 5. no bending.
20. The physiotherapist advised the rehabilitation provider that the plaintiff could obtain further improvement within four to 12 weeks in a number of areas. The plaintiff had demonstrated improvement with his gait and was able to walk 75m without pain. The plaintiff's grip strength, I infer in his left hand, had increased from 2kg to 22kg over six weeks.
21. On 13 2018 and 22 August 2018 i-Fit Rehab had conducted cold calling with employers on behalf of the plaintiff. The focus was on Community Service positions because the plaintiff had commenced a Diploma of Community Services. The rehabilitation provider continued to provide the plaintiff with job seeking skills, by performing mock job interviews. The matter was listed for review on 30 September 2018.
22. I infer from the rehabilitation provider reports that cold calling of prospective employers and assistance in compiling job applications for any potential job identified in that process, was a regular part of the service provided to the plaintiff by the rehabilitation provider. The plaintiff's evidence was that he has not obtained any job or been offered any work trial and I infer that he was not offered any employment or work trial from the cold calling process conducted by the rehabilitation provider.

The Plaintiff's Credit

1. The defendant submitted that the appropriate outcome of the case hinged on the plaintiff's credit, determined by reference to the surveillance footage. The defendant submitted that all of the medical opinion evidence was based on an acceptance of the veracity of the plaintiff's evidence, but that he had exaggerated by telling the doctors that he could not place his right foot flat on the floor and that he had a noticeable limp, obvious to anyone who looked at him. The defendant submitted that the footage depicted the plaintiff walking 'absolutely normally', that the plaintiff did not have any difficulty with placing his right foot squarely in the ground and there was no indication that the plaintiff was in pain when he did so. The defendant submitted that the plaintiff was walking quickly and displayed no signs of what he told Dr Keller '10 minutes earlier', making it clear that he was fabricating and/or exaggerating what he told the doctors (and the rehabilitation providers) as well as what he said in evidence. It followed, on the defendant's submission, that the plaintiff could not be believed about his right ankle symptoms and that would give rise to concerns about the veracity of his complaints about the left ankle, left wrist, knees and lower back.
2. The defendant did not dispute that the plaintiff suffered 'a nasty injury requiring serious treatment and a not insignificant period of recovery and rehabilitation'. The defendant accepted in submissions that the plaintiff was totally incapacitated for work for four years after the accident (to 10 May 2016) and thereafter continued to only have capacity for 20 hours work per week.
3. As a matter of principle, surveillance evidence may be relevant for a number of reasons including to impugn the plaintiff's credit or to demonstrate capacity for work: Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [155] per Adamson J. It can show that a plaintiff has not been frank about a particular matter or his or her capacity generally. The footage may be at odds with a history given to a doctor at a proximate time or with the plaintiff's evidence-in-chief. The contents of the footage may undermine the basis on which experts have based an opinion and thereby require an assessment of the value of the opinions based on facts that are inconsistent with what is depicted.
4. Where there is a difference between the evidence and the assumed factual basis for expert opinion, it is a question for the primary judge as to whether the opinion can still be accepted: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846.
5. Where the surveillance evidence is put to the plaintiff for the first time in cross-examination and the medical experts have not seen it, there are several courses of action that may be adopted. If the history given is inconsistent to what the footage depicts, it is usually incumbent on the plaintiff to call the expert and to adduce evidence orally of the effect that the footage has on their opinion: Kubovic at [160] per Adamson J (Ward JA agreeing). A defendant also has the choice to call its medical experts to put the surveillance evidence to them to see what difference the footage makes to their opinions. Kubovic at [164].
6. If there is no express evidence from the medical experts, as in the present case, the primary judge must decide what difference, if any, the disparity between the history or the evidence and the footage makes as to the reliability of the opinions expressed. A substantial disparity will make the opinions inadmissible; a lesser disparity will affect the opinion's weight: Kubovic at [165].
7. I am not satisfied that the video footage depicted the plaintiff walking normally, without pain or without restriction. This was a matter for expert evidence. The limitations on the plaintiff having a normal or unchanged gait depended upon the physical changes that had occurred within the plaintiff's right ankle. This was a matter that called for the application of specialised knowledge as provided for in section 79 Evidence Act 1995.
8. All of the medical experts that were qualified for both parties accepted that the plaintiff's gait had been affected by the changes that occurred as a result of the injury to the right ankle and were confirmed by physical examination. On examination, Dr Habib on 26 May 2016 noted a severely inverted right foot and observed the plaintiff to walk on the outside of his right foot. On 17 May 2018, Dr Habib observed the plaintiff transferring his weight to the lateral aspect of the right foot when he walked. On 22 September 2016 Dr Powell observed the plaintiff's right foot to be abducted and slightly inverted and that the plaintiff tended to walk on the lateral aspect of the right foot. On 21 September 2017 Dr Powell observed the plaintiff to have a shortened stance phase on the right side, a tendency to walk on the lateral border of the right foot and a varus (twisted) position of the hind foot. Dr Powell concluded that the plaintiff had an altered gait pattern that had aggravated his lumbar spine condition. On 28 September 2017, Dr Keller observed the plaintiff to walk unassisted with a limp putting most of his weight on the outside of the right foot and on examination, observed a severe restriction of movement in the right ankle. On 30 April 2019, Dr Keller recorded similar findings. None of the medical evidence suggested that the plaintiff was exaggerating his symptoms or that he gave any inconsistent history.
9. If I am wrong on the conclusion that the assessment of the plaintiff's gait was a matter for expert evidence, then in my view the plaintiff's gait was not normal. There were a number of occasions set out above, when I observed the plaintiff's gait to change where he appeared to favour his left foot. He was also seen on a number of occasions to favour his right foot by lifting it up and putting his weight through his left leg. Further, the still shots of the video footage are particularly telling. The still shots clearly show the plaintiff putting his weight on the outside of the plaintiff's foot, and some inversion of the right foot in a manner consistent with the plaintiff's complaints and the observations of the medical experts. This aspect was not apparent when watching the footage at normal speed, but I got the overall impression that the plaintiff's gait was adversely affected.
10. The use of the word 'limp' in the evidence is apt to mislead for the following reasons. First, it is unclear by what Dr Keller meant when he used that term on either occasion. I would not infer that he was referring to an obvious or exaggerated limp as may be associated with the use of the word by lay people or to lay observation. Second, the plaintiff accepted that he had a limp in the context that he subjectively believes that he cannot walk normally or properly, and the reference to either was to before the (significant) injury occurred. The plaintiff's subjective belief is wholly supported by the expert medical opinion, and he has good reason to believe that he is significantly disabled as a result of the injuries sustained on 10 May 2012. In all the circumstances, the plaintiff's evidence about what other people notice about him is no more than a reflection of what he perceives about himself and was not intended to be an exaggeration of his predicament.
11. The footage did not depict activities that the plaintiff said he could not do and accordingly there was no discrepancy between the facts assumed by the medical experts and the plaintiff's evidence-in-chief. The plaintiff's evidence was that the pain was always there, but got worse with standing and walking. The footage did not depict him exceeding a limit on walking that he was certified unfit for or in contradiction of what he said he could not do. It is not possible to determine from watching the footage whether or not the plaintiff was in pain.
12. In my view, the plaintiff was a careful and considered witness. He gave evidence that was on occasions that was against interest, for example that he failed one year of his tertiary studies. To my mind that type of evidence was consistent with him being a witness of truth.
13. The plaintiff gave evidence with a calm, quiet and polite demeanour. He made appropriate concessions in the course of his evidence, for example that he had applied for jobs that he thought he could do. He was forthright but calm in his denials of exaggerating or fabricating his symptoms for the purpose of maximising his compensation claim.
14. For all of those reasons, I find that the plaintiff was an honest and reliable witness, that the opinions of the medical experts are based on accurate and reliable information and there is no need to discount the weight to be applied to them.

The Plaintiff's Submissions

1. The plaintiff submitted that he has sustained a total loss of earning capacity, because irrespective of any residual capacity for work, which is subject to significant restrictions, the plaintiff has been unable to find suitable work. The plaintiff has been required to apply for 10 jobs per month and has been assisted by the rehabilitation provider, but has not been successful in finding suitable work.
2. The plaintiff submitted that he would have progressed in his work with the defendant or found alternate employment such that he would have been earning average weekly earnings (AWE) by 1 July 2015 and that he would have continued to earn an income of that magnitude.
3. The formula by which past and future superannuation was calculated was common ground.

The Defendant's Submissions

1. I have already referred in [113] above to the defendant's basis for calculating the plaintiff's lost earning capacity.
2. The defendant contended that the calculation should be based on the plaintiff's pre injury wage which was $646.00 per week nett, but accepted as $700.00 per week including some overtime. The defendant allowed CPI increases but no more, arguing that some workers must be employed at the wage that the plaintiff was earning and that there was no basis on which it would be found that the plaintiff would reach AWE.

Determination

1. The plaintiff has been assessed as having a residual earning capacity of between zero hours and 20 hours per week, with a number of restrictions which are for the most part common ground amongst the medical experts. I would prefer the opinion of Dr Keller that his residual earning capacity is about 15 hours per week, comprised of 3 hours per day 5 days per week. I do not accept that he could commence working those hours immediately, but rather that he would benefit from a gradual increase in hours and that he should start with work on alternate days.
2. I am satisfied that the plaintiff has tried very hard to find work, suitable for his physical restrictions, but has been unable to do so. This has involved applying for 10 jobs per month at the direction of the rehabilitation provider, applying for advertised positions, cold calling in person at a number of different types of businesses and participating in the cold calling episodes with the rehabilitation provider at its regular reviews. I am satisfied that the plaintiff was motivated to find work after his injury, but has not been able to do so as a result of his physical incapacity, limited English skills and lack of work experience in Australia.
3. His job skills developed in Iraq have not been transferable to the open labour market in Australia. He has recently enrolled in a Diploma of Community Service. Whilst this demonstrates a willingness to retrain and I infer to work in the future, there was no evidence as to how the completion of this course would increase his employability. I would be speculating, if I was to place much significance on the plaintiff's enrolment in this course. His employment opportunities are severely limited by his injuries and disabilities. It is likely that his condition will deteriorate in the future, at which time he will require an ankle fusion.
4. I am satisfied that the plaintiff has suffered a total loss of earning capacity.
5. The plaintiff was motivated to work to support his family. His wife did not return to the workforce until the youngest children were at school in about 2016. The plaintiff and his family had a modest existence and I am satisfied that the plaintiff wanted to provide for them and would have worked hard. His background in Iraq is to his credit. He applied many hours each day to work and study commitments. I am satisfied that he would have pursued similar opportunities in Australia with the same vigour if he had been given the opportunity to do so. There is a significant chance that he would have ended up earning well in excess of AWE.
6. I do not accept that the plaintiff would have stagnated in the job that he first obtained with the defendant. After gaining experience and competence I am satisfied that he would have looked for suitable work that would have maximised his earning potential as a way of providing for his family and securing their future.
7. I am satisfied that AWE is an appropriate measure of the plaintiff's future loss, but I do not accept that he would have reached that level of wages in the time contended for by the plaintiff. In my view, this would have been a more gradual progression which I have estimated to be 5% per annum until reaching AWE on or about 30 June 2019. I have set out the figures for past loss in the following table: 10 May 2012 to 30 June 2012 (7 weeks) at $700 pw $4,900.00 60% of AWE 1 July 2012 to 30 June 2013 (52 weeks) at $754 pw $39,208.00 65% of AWE 1 July 2013 to 30 June 2014 (52 weeks) at $833 pw $43,316.00 70% of AWE 1 July 2014 to 30 June 2015 (52 weeks) at $901 pw $46,852.00 75% of AWE 1 July 2015 to 30 June 2016 (52 weeks) at $972 pw $50,544.00 80% of AWE 1 July 2016 to 30 June 2017 (52 weeks) at $1,049pw $54,548.00 85% of AWE 1 July 2017 to 30 June 2018 (52 weeks) at $1,134pw $58,968.00 90% of AWE 1 July 2018 to 11 June 2019 (49 weeks) at $1,197pw $58,653.00 95% of AWE Total $356,989.00

1. The plaintiff is entitled to past loss of superannuation calculated at 11% of the past loss figure, which comes to $39,268.79.
2. For the future I would allow loss at the rate of AWE until the date of the plaintiff's retirement on 15 March 2043. The appropriate multiplier is 738. The future loss is calculated at $1,260.00 x 738 less 15%, which comes to $790,398.00.
3. The plaintiff is entitled to loss of future superannuation calculated at 14.03% of the future loss, which comes to $110,892.00.

Other matters

1. The plaintiff may also be entitled to interest pursuant to section 151M Workers Compensation Act 1987, a Fox v Wood component and costs.
2. I have not yet deducted any amount on account of weekly compensation already paid to the plaintiff.

Orders

1. The orders I make are as follows: 1. Verdict for the plaintiff. 2. I direct that the parties confer and review the mathematical calculations in the judgment. 3. I direct that the parties confer and bring in Short Minutes of Order to give effect to my decision. 4. I list the matter for argument on 28 June 2019 in relation to any outstanding matters.

Addendum

1. On 27 June 2019 the parties reached agreement in relation to the orders to be made.
2. On 27 June 2019 I made the following orders in chambers: 1. Verdict for the plaintiff in the sum of $1,354,026.00. 2. Order that the defendant pay the plaintiff's costs. 3. The defendant is to have credit for all weekly payments of compensation, currently noted to be $289,469.00. The parties note that weekly payments will continue until the judgment monies are paid to the plaintiff and the defendant will be entitled to credit for any further payments of weekly compensation made between 25 June 2019 and the date that the judgment monies are paid. 4. Note that the parties: 1. agree on the mathematics of the awards set out in the Reasons given on 25 June 2019; 2. agree that the Fox v Wood sum is $34,311.00; 3. agree that the interest sum is $22,167.00. 1. Exhibits to be returned to the parties. 2. Vacate the listing of 28 June 2019. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2019