Nassar v Albert Doumit [2001] NSWCC 45

Compensation Court of New South Wales

CITATION : Nassar v Albert Doumit [2001] NSWCC 45 PARTIES : Jamal Nassar v Albert Doumit MATTER NUMBER(S) : 51594 of 1999 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/01/01, 23/03/01 DATE OF JUDGMENT: 04/19/2001

FOR APPLICANT: Mr L J Ellison instructed by Bateman Battersby. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J W Catsanos instructed by Price waterhouseCoopers Legal.

JUDGMENT: 1. In these proceedings the applicant seeks payment of compensation from 13 May 1999 to date and continuing as a result of injury received by him in the employ of the respondent on 1 August 1998. A claim is also made pursuant to the provisions s 60 in respect of dental treatment which the applicant alleges is necessary as a result of his injury. 2. The respondent denies the requirement for the dental work is as a result of any injury received in the course of employment and pleads the provision of s 9A. The degree of any incapacity is also in issue. 3. The applicant was born 11 September 1958. He claims 5 dependant children. He arrived in Australia in 1985 and thereafter engaged in cleaning work. He commenced driving taxis in about 1990. 4. He said that on 1 August 1998 at about 1.30 am he picked up passengers at the Granville cab rank with the intention of driving them to Parramatta. In the course of that journey he said he was assaulted by the passengers. This was obviously a frightening episode and the applicant said: ".....one of the people they put a wire on my neck from the back and the other one - by this I stopped the car - but the car was still running and my feet were on the brake and he was tightening the wire, and the other person start asking me "Where is your money?" So I give them the money, and he punched me in the face, and the other one from the back started to punch me. I give them all of the money that I got, all the dockets I got. They thought there was more money. One of them, he went outside and came through to my window and started punching me in the face so I started bleeding and there was a car coming from the other side, and when they saw the lights coming they left everything and they ran away......." 5. He was taken to the Westmead Hospital where he was treated. He then came under the care of his general practitioner. He was referred to a psychologist and to a psychiatrist. He was also referred to a dentist. At the time of the assault the applicant said he had about 90 per cent of his own teeth. He now has no teeth following the assault and subsequent dental treatment. 6. The applicant gave evidence that he experienced nightmares after the accident for which he was provided with medication to sleep, and he also experienced headaches. It was also his evidence that since that assault he has had sexual problems. He has not resumed any employment. It was his evidence that he was unable to resume driving a taxi because of his fear of being in a taxi as a driver. He has attempted suicide. He has difficulty talking properly because of his lack of teeth, and has problems conversing with others and has fears of further attack. 7. He said it has been suggested to him that dental work could be done either by way of dental implants or by dental prothesis. He would prefer to have the implant work done. 8. In cross examination the applicant agreed that prior to this assault he did not have a full set of teeth but said he had "plenty of teeth to eat with". He agreed that following the assault the remainder of his teeth were taken out. He denied having any gum problem prior to the injury, and said it had been about eight years since he had seen any dentist prior to the accident. He denied an ability to resume employment at the present time, saying he had fears of further attack, and in his view he remains unable to engage in activities which would bring him in contact with a lot of people other than his friends. It was also his view that because of the medication he is presently taking he is unable to engage in work activities. 9. In relation to the question of dependency the applicant agreed he is not presently living with his wife and that she is in receipt of social security payments. It was his evidence that prior to the assault he had given his wife some money in support of his children at times as needed, but not on any regular basis. At the present time he provides child support in the sum of $21 per month to his wife. 10. It appears the applicant has been diagnosed recently as diabetic for which he is taking medication. It is clear the applicant is not presently seeking any employment. 11. The applicant's schedule alleges comparable employees in the employ of the respondent to earn the sum of $657.75 pw from 13 May 1999 to date and continuing. The applicant has no actual earnings since the date of injury. 12. Discharge summary of the Westmead Hospital dated 1 August 1998 states the applicant to have presented to the emergency department on 1 August 1998 at 2.35 am with a presenting problem of injuries to the mouth after alleged assault. It is noted there was obvious trauma to the mouth, and mild left upper quadrant tenderness. X-rays and CT scans were taken including facial and mandibular x-rays. These disclosed moderate existing dental disease but no fractures. He was seen by the oro-facio maxillary registrar who removed loosened teeth which may have compromised his airway and apart from dental damage no other serious injury was identified. After a period of observation he was discharged. 13. Dr R Dimian is the applicant's general practitioner. He saw him on 4 August 1998 and obtained a history of assault on the applicant whilst at work sustaining kicks to the head and face. He referred the applicant to Dr Girgis, psychiatrist, and to a dentist and a psychologist. His series of reports detail attendances upon him and treatment afforded. 14. Dr Girgis has provided a series of reports relating to the applicant's attendances upon him. In reporting of 30 September 1998 he recorded a history of an assault. Following examination of the applicant he was of the view the applicant had sustained post traumatic stress disorder as a result of the assault and a severe anxiety/depression state. He prescribed medication. By reporting of 30 January 2001, Dr Girgis notes the applicant had been attending him on a regular fortnightly basis since 30 September 1998. He thought him to continue to suffer from post traumatic stress disorder and thought him permanently unfit for work. He noted admission to psychiatric hospitals on several occasions with suicidal ideation. 15. Reporting of Vicki Garner, psychologist was also tendered. She initially saw the applicant on referral from the applicant's treating psychiatrist. She noted reporting of severe sleep disturbance, nightmares about the assault and short term memory difficulties. She also recorded a history of suicidal thoughts and of depression and also that the applicant was very self conscious about not having any teeth as it made his speech a little difficult to understand and his face ugly in appearance. 16. Dr I Eltenn is a dentist who initially saw the applicant on 22 August 1998. At the time of first examination he recorded a history of assault in the course of employment on 1 August 1998 and that the applicant had been hit on the face sustaining damage to his teeth. He noted the applicant to have severe periodontal disease which was present before the accident, and that trauma from the accident had inflicted more damage to his teeth which were then very tender and mobile. He therefore felt it necessary to extract the remainder of the applicant's teeth. In his view the applicant now requires a full upper and lower denture at a cost of about $1700, or dentures fitted to implants at a cost of around $17,000. In his view the assault had made the applicant lose his teeth earlier than he would have had he not been assaulted. It was his view the alternatives of dentures or implant was not a matter on which he could give an opinion. 17. Dr A Robertson provided a medico legal assessment of the applicant's psychiatric state following examination on 1 May 2000. He recorded that the applicant had been the victim of assault in the course of his employment as a taxi driver on 1 August 1998 and had been punched in the face. He noted that several of the applicant's teeth had been broken and those teeth were removed, but that his remaining teeth were unstable and were later also removed. He noted a history that the applicant had experienced insomnia since the assault, associated with flash backs and nightmares which have now lessened in frequency. He also noted the applicant to be too fearful to contemplate driving a taxi again and that for a period of time had had an intense phobia of Asian people, associated with the attack. He noted symptoms of depression and that there had been attempted suicide on two occasions which had required hospitalisation. 18. In his view the applicant suffered post traumatic stress disorder as a result of the assault. He thought this had been complicated by depression and some paranoia associated with that depression which had resulted in two episodes of self harm. In his view it was medically reasonable that the applicant was unable to work since the assault because of his mental state. He thought further treatment required. In his view the applicant remains unfit to work as a taxi driver. 19. Reporting of Dr L Short, Orthodontist was also tendered. This relates to an examination on 23 November 1998. A history was obtained of an assault on 1 August 1998 in the course of employment. He noted that at the time of the accident the applicant stated he had approximately 20 teeth which were asymptomatic, and that following the assault two teeth were extracted, with the remaining teeth extracted at a later time, as many of those teeth had become loose following the injury. It was his view that with the insertion of implants and the construction of dentures the applicant should achieve 80 percent of his original biting force and should be able to function adequately. He noted the cost of full upper and lower dentures to range in price from approximately $1,000 - $3,000, and the cost of implants to be $3,000 - $5,000 per unit, and therefore six implants to cost some $18,000, and was of the view that the fee quoted was reasonable for the work to be done. He further commented that full dentures without the benefit of implant stabilisation would only provide one fifth of previous biting force. Thus it appears his view is that implants are the preferred option. 20. The applicant also has tendered reporting of Dr H Millar, consultant otolaryngologist following assessment performed 9 October 1998 on behalf of the insurer. He obtained a history of assault in the face in the course of employment on 1 August 1998. He noted that in the assault two teeth were knocked out and several others loosened and there was general facial bruising with initial medical treatment carried out at Westmead Hospital. He recorded that the remainder of the applicant's teeth were in poor condition many being loose following the assault, so that all residual teeth were then removed. 21. In his view the applicant sustained significant dental damage in the assault requiring the removal of the remainder of his teeth, possibly due to the combination of their loosening and the associated dental disease. He thought the applicant required dentures as a matter of urgency. He does not appear to have considered the question as to the option of having implants and/or dentures, nor the cost of such treatment. 22. The respondent has provided medico legal opinion of Dr Gibney, psychiatrist, relating to his examination on 9 October 1998. He obtained a history of assault in the course of employment on 1 August 1998. He noted the applicant had been prescribed antidepressant medication and described symptoms of sleep disturbance, bad dreams, apprehension about driving at night, forgetfulness and an inability to speak clearly because of teeth damage. He thought the applicant to describe symptoms of anxiety with features of post traumatic stress disorder as a result of the assault in the course of employment. He thought the assault to still be making a significant contribution to the applicant's symptoms and at that time did not believe the applicant well enough to resume duties as a taxi driver. He thought he could perform alternative duties. 23. He reassessed the applicant on 12 April 1999. He noted continuation of symptoms to a lesser extent than previously seen. He thought there were still residual symptoms of the post traumatic stress disorder which was abating and thought the applicant remained unfit for taxi driving, but fit for a graduated return to the work force. He assessed him again on 16 March 2001. He noted there had been an attempted suicide and the applicant had been diagnosed as diabetic. He noted the applicant had been admitted to hospital because of suicidal ideations, and continued on antidepressant medication and sedatives. At that time he thought the applicant to have a persisting mild post traumatic stress disorder and some adjustment disorder with depressed mood. On the basis of the history obtained, his examination and other medical reports provided to him, he thought the applicant not capable of return to his pre-injury work as a taxi driver. 24. Dr E Revai performed psychiatric examination of the applicant on 2 November 2000. He had the opportunity of reviewing medical reporting of the applicant's treating doctors. He obtained a history of assault upon the applicant in the course of employment on 1 August 1998. He noted the applicant had been taken to Westmead Hospital where some broken teeth were removed and that he had later attended his general practitioner and dentist. He noted the applicant had also been referred for psychiatric treatment. 25. Following examination he was of the view the applicant suffered anxiety symptoms diagnosed as in keeping with a post traumatic stress disorder, which on his assessment at the time of examination appeared to be abating. He thought his symptoms equated to an adjustment disorder with anxious and depressed mood, but this was influenced by a high caffeine and nicotine intake. Following review of documentation he thought the applicant to be passive towards his rehabilitation, but again thought much of his symptomatology was a result of smoking and drinking coffee to excess. 26. The applicant presented as a somewhat gloomy man who appeared to be somewhat self conscious in relation to his absence of teeth. I am satisfied he did sustain injury to his face and teeth as a result of an assault upon him in the course of his employment with the respondent on 1 August 1998. From the psychiatric evidence before me and from the applicant's evidence, it is my view he continues to suffer the effects of post traumatic stress disorder and some anxiety and depression which are as a result of that assault, and it is my view the continuing effect of such a condition does render him unfit for work as a taxi driver. However I believe the applicant has some capacity for employment on an open and available labour market considering solely his psychiatric condition. He clearly also requires some dental work to be performed prior to engaging in employment which would enable him to face the general public on a day to day basis noting at the present time he is edentulous. 27. The respondent contends that the provisions of S 9A apply, and as the applicant had pre-existing gum disease and his teeth needed repair and/or extraction from such disease in any event, thus his employment was not a substantial contributing factor to the need for removal of all his teeth, but arose from those other problems. 28. It may well be that the applicant would have eventually lost his teeth. Clearly he had some pre-existing gum disease. However it appears the assault loosened some teeth which then required immediate extraction and also damaged the remainder of his teeth to the extent that these also required extraction. I am satisfied on the balance of probabilities that the assault upon his face was a substantial contributing factor to the loss of his teeth. 29. The views of the dental experts are that the applicant requires dental treatment to provide him either with dentures or implants. The applicant has expressed a desire to have a full implant done. The opinion of the orthodontist is to the end that implants would give a better result than providing the applicant with false teeth. This seems to me to be an entirely reasonable course and I am satisfied the applicant should have the dental work undertaken by way of implants to provide him with a full set of teeth should he so choose. 30. In looking to the applicant on the open labour market, his skills are in taxi driving and/or cleaning work. It appears to me cleaning work is an activity which would be suitable employment for the applicant given his present condition, relating not only to his psychiatric state but also to his lack of teeth. In looking to the applicant it is my view he has a capacity to earn on an open and available labour market in the sum of $300 per week in such activities. I exercise a mathematical calculation between that amount and the earnings of comparable employees in the employ of the respondent. 31. I find the applicant to have five dependant children at all material times. 32. Accordingly there will be an award for the applicant in the sum of: $357.75 pw from 28 May 1999 to date and continuing, pursuant to s 40. 33. General order in relation to s 60 expenses, including the cost of dental work. 34. Costs pt 29. Mr L J Ellison instructed by Bateman Battersby appeared for the applicant. Mr J W Catsanos instructed by PricewaterhouseCoopers Legal appeared for the respondent.