Agius v Victorian WorkCover Authority
[2022] VCC 2210
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01902
| ANTHONY aGIUS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 & 22 November 2022 | |
DATE OF JUDGMENT: | 14 December 2022 | |
CASE MAY BE CITED AS: | Agius v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2210 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – scarring and psychiatric injury – pain and suffering and pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327
Cases Cited:Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Humphries and Anor v Poljak [1992] 2 VR 129; Baker v Transport Accident Commission [1997] 1 VR 662
Judgment: Leave granted to the plaintiff to bring proceedings under (c) for pain and suffering and the recovery of loss of earning capacity. Leave refused under (b) for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan SC with Mr E Makowski | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr G A Worth | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1On 12 June 2019, the plaintiff, Mr Anthony Agius, suffered an injury at work. A connection on a pipe came apart and his right lower leg was burnt by sulphuric acid.
2It took six to eight weeks for the burn to heal and has left a scar. He developed post-traumatic stress disorder. He ended up having 11 months off work.
3This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, in which he seeks the leave of the Court to commence a common law proceeding pursuant to (b) permanent serious disfigurement, for pain and suffering, and (c) permanent severe mental or permanent severe behavioural disturbance or disorder, for pain and suffering and pecuniary loss.
4In respect of his scar, the issue is whether the pain and suffering consequences of the scar meet the threshold of being at least very considerable.
5In respect of his psychiatric injury there are three main issues.
6The first issue is whether the plaintiff’s current symptoms are the result of, or materially caused by, the injury sustained at work on 12 June 2019. The defendant’s case is that his psychiatric injury completely resolved, and his current symptoms are caused by a combination of disciplinary action taken against him at work on 1 December 2021 and other non-work related stressors. The plaintiff’s case is that his symptoms are a continuation from the original incident on 12 June 2019, noting that when he returned to work from May 2020 to December 2021, he was affected by the smell of chemicals and perceived safety issues.
7The second issue concerns the effect of the plaintiff’s prior mental health history, namely his long-standing depression.
8The third issue concerns how the defendant’s psychiatric report by Dr Krapivensky, who disavows the plaintiff has a current psychiatric condition, is reconciled with the other medical opinions.
9Finally, the defendant’s counsel has raised the plaintiff’s credit as a real issue in this proceeding. The plaintiff’s affidavit material has been attacked for its omissions and inaccuracies, particularly his first affidavit, as well as histories given by the plaintiff to his treating doctors. Counsel relied on Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8.
The plaintiff’s evidence
10The plaintiff is fifty-eight years old. He worked for CSR for 28 years and then had a Jim’s Mowing business for eight years. In September 2018 he commenced working with CSF Proteins Pty Ltd as a process worker. He was working full-time, would often do overtime and was earning $1,400 gross per week.
11The plaintiff filed two affidavits, dated 21 December 2021 and 18 November 2022.
The scar
12In his first affidavit he states he has a visible scar over his right lower leg and the appearance concerns him. He used to wear shorts in summer but now feels embarrassed by it and describes it as extremely ugly.[1]
[1] Plaintiff’s Court Book (“PCB”) 7
13The scarring is sensitive to sun damage, and he must be very careful to use sunscreen. He has itching and loss of hair and the scar is hyperpigmented.
14In his second affidavit he describes the scarring as impacting upon his enjoyment of life. As the scar is hypersensitive to sunlight, it burns very easily.
15He feels self-conscious about the scar and of people looking at it in summer when his leg is exposed.
16The scarring impacts on his enjoyment of swimming and fishing because of the risk of sunburn. He no longer swims as regularly as he used to in good weather because of the risk of sunburn.
Psychiatric symptoms
17In his first affidavit, the plaintiff describes being depressed, having a short temper and nightmares about the accident. He is now apprehensive around chemicals.
18He was seeing a psychologist, Diana Whale, and previously used anti-depressants but does not like taking them because of the side effects.
19He has post-traumatic stress disorder and has increased anxiety and panic attacks and a lowered mood, compared with pre-accident.
20Recently, he has felt targeted at work, and work has been a struggle since his injury.
21In his second affidavit, the plaintiff details he currently suffers from severe psychiatric symptoms, particularly anxiety. He has daily episodes of anxiety when his heart races and his mouth feels dry. Anxiety symptoms are triggered by the smell of chemicals, or any reminder about work.
22He also experiences panic attacks 3-4 times per week. His heart races, he gets a dry mouth, he loses focus, and he feels physically ill, as though he will vomit. Sometimes he takes a Valium to control the symptoms.
23He also suffers from low mood and depression. On a good day he will attend hydrotherapy, do some gardening and walk the dog. On a bad day, 2-3 times a week, he will stay in bed.
24He describes his concentration and short-term memory as “bad”.[2] He forgets things, like leaving a pan to burn on the stove, or when he is driving he may forget where he is.
[2] PCB 28
25He is irritable and his personal relationships with family members have deteriorated.
26He no longer enjoys his hobbies. Pre-accident he went to the football most weeks, whereas this year it has only been on a handful of occasions, as he finds catching a train and the crowds cause him anxiety.
27He has only been fishing a couple of times and without much enjoyment.
28When he watches television he is anxious about seeing a reference to an accident which may trigger his symptoms.
Return to work
29In his first affidavit he noted he had been certified unfit due to his injuries and had sought reinstatement of weekly payments. As noted, he stated he felt targeted at work, and that work has been a struggle since his injury.
30In his second affidavit he referred in more detail to the period when he returned to work following the accident.
31After 11 months off, he returned to work in May 2020. He described continuing to be anxious about safety issues and being easily startled. By late 2020 he felt he was managing better, though he still had anxiety symptoms. He ceased treatment with his psychologist as he did not want to keep discussing the 12 June 2019 accident.
32In mid-2021, there was a fire at work which triggered anxiety symptoms and flashbacks.
33By mid to late 2021, he was very anxious and hypervigilant at work about safety issues. This led to conflict with his supervisor and site-manager. His anxiety symptoms flared up whenever he witnessed a safety issue, which was regularly.
34In December 2021, his post-traumatic stress disorder symptoms were “at a high level.”[3]
[3] PCB 26
35In early December 2021, he was accused of walking under the tynes of a forklift, which he denied. He stated:
“I was very sensitive about safety issues after the accident, as well as being generally anxious and stressed when I was back at work. There were a number of meetings whenever I raised these safety concerns after my accident and I felt that nothing was ever done about my complaints.”[4]
[4] PCB 26
36In early December 2021, he was struggling with anxiety, flashbacks, nightmares, and depression. He saw his GP, Dr Adam Smith, who certified him as unfit for work. He has not worked since. His employment was terminated on 2 August 2022.
The plaintiff’s credit
37The plaintiff’s credit is an important issue and the defendant’s counsel sought to discredit him, largely on the basis of alleged deficits and omissions in his affidavit material. He stated in submissions that, “the failures of that first affidavit are… extraordinary”.[5] The principal deficiency concerns the omission in his affidavit dated 21 December 2021 of any reference to events at work on 1 December 2019 where the plaintiff was alleged to have breached safety requirements. Other omissions relate to the plaintiff’s pre-accident long-standing depression and medication regime, and other inaccuracies and exaggerations.
[5]Transcript (“T”) 107, Lines (“L”) 1-3
38The defendant referred to the case of Ifka v Shahin Enterprises Pty Ltd,[6] where the Court of Appeal upheld a judgment finding the plaintiff’s credit had been impugned on the basis of her affidavit material, together with her evidence on oath and medical reports with histories absent reference to the relevant pre-existing symptoms. This is not the case here.
[6][2014] VSCA 8
39The plaintiff was criticised for not detailing events at work on 1 December 2021 in his first affidavit. At paragraph 23 he stated:
“In recent times I have felt targeted at work and I have been certified unfit due to my injuries and I have sought reinstatement of weekly payments of compensation. Work has been a struggle since I sustained my injury.”[7]
[7] PCB 7
40The defendant’s counsel argued the details of this incident should have been included as it was the real cause of the plaintiff’s current symptoms, rather than his prior condition of post-traumatic stress disorder which the defendant’s counsel submitted had previously resolved.
41For reasons which follow in this judgment, I do not accept the basis of that reasoning: namely, that the plaintiff’s psychiatric condition of post-traumatic stress disorder had resolved prior to his return to work during mid-2020 and December 2021. Therefore, I do not accept that the lack of reference to the workplace disciplinary process was a material omission from the affidavit as I do not find it was the cause of his most recent psychiatric symptoms.
42I found the plaintiff to be a credible witness. He had a flat affect in court, but his answers were succinct and at times against interest. He came across as genuine, without seeking in any way to embellish or exaggerate.
43The objective evidence in this case supports the broad thrust of the plaintiff’s evidence.
Claim based on psychiatric injury
Plaintiff’s treating clinicians
Dr Adam Smith
44The plaintiff’s GP Dr Adam Smith reported following the injury on 12 June 2019, the plaintiff suffered symptoms of difficulty sleeping, flashbacks, nightmares, avoidance, poor concentration, and poor memory and judgment, which are consistent with the diagnosis of post-traumatic stress disorder.[8]
[8] PCB 105
45In his report dated 10 November 2022, Dr Smith noted the plaintiff was already on Valdoxan for pre-existing anxiety and depression, which was increased from 25mg to 50mg. He was commenced on Valium at 5mg and was referred to psychologist Diana Whale.
46He continues to suffer symptoms of post-traumatic stress disorder and anxiety, including difficulty sleeping, anxiety, panic attacks, fear, avoidance of work, forgetfulness, absent-mindedness, and irritability.
47He has tried various medications for his sleep (Valium, Temazepam and Melatonin). He was also on Citalopram and Sertraline which has now ceased.
48He transitioned back to work in 2020. On 3 December 2021 he presented to Dr Smith with symptoms, “consistent with an exacerbation of his PTSD”.[9] These were described as, “feeling on edge, anxiety, insomnia, flashbacks, nightmares, avoidance behaviour, irritability, low mood and family disruption”.[10] Dr Smith opined the symptoms were consistent with an exacerbation of his post-traumatic stress disorder, and an acute flareup of his chronic post-traumatic stress disorder symptoms.
[9] PCB 106
[10] PCB 106
49His current treatment comprises seeing his psychologist, Diana Whale, and regular GP monitoring, hydrotherapy, exercise, and Valium as required.[11]
[11] PCB 106
Ms Diana Whale
50In July 2019 the plaintiff was referred by his GP to psychologist Diana Whale. She prepared seven reports, most of which were updates to the referring GP, which were tendered by the plaintiff, and the defendant tendered her clinical records.
51In her first report, dated 1 August 2019, she noted the plaintiff’s assessment results indicated severe depression, extremely severe anxiety, and severe stress. Following assessment, she was of the view the plaintiff met the DSM-V criteria for post-traumatic stress disorder. She noted he had a pre-existing history of anxiety and depression.[12]
[12] PCB 67
52In her report dated 20 December 2019, she noted he still had post-traumatic stress disorder but at a lower level,[13] and in her report dated 27 March 2020 she noted he still had post-traumatic stress disorder but the testing suggested higher levels. She noted the plaintiff’s desire to return to work as soon as possible and that on 25 March 2020 she attended a meeting to discuss a proposed return to work plan.[14]
[13] PCB 71
[14] PCB 74
53Following the plaintiff’s return to work, in her report dated 29 May 2020, Ms Whale noted that the plaintiff’s symptoms of post-traumatic stress disorder had improved over the past few months, especially since his return to work, and that he reported a reduction in anxiety and distress.[15] His post-traumatic stress disorder checklist score represented a clinically significant improvement in his symptoms.
[15] PCB 75
54In her report dated 6 January 2022 she noted the plaintiff had resumed psychological treatment after a gap of approximately 11 months. In Ms Whale’s opinion the plaintiff had suffered an exacerbation of his previous post-traumatic stress disorder with mixed anxiety and depression.[16]
[16] PCB 82
55Ms Whale observes in December 2021 he presented in an emotionally labile and anxious state. He reported symptoms such as increased difficulty sleeping, feeling anxious, tearfulness, low mood, loss of enjoyment, feeling agitated, loss of appetite, difficulty concentrating, memory difficulties, trauma-related symptoms of hypervigilance, being easily startled, distress when reminded of the traumatic event, disassociation, and thinking people are watching him.[17]
[17] PCB 82
56When he completed the post-traumatic stress disorder checklist for DSM-V, his score was significantly higher than at the beginning of his treatment. Ms Whale noted the plaintiff identified two incidents at work which reminded the plaintiff of the original traumatic event, and which triggered his post-traumatic stress disorder symptoms.
work capacity
57Ms Whale’s opinion was the severity of the plaintiff’s symptoms has resulted in him having no current capacity for work.
58In her report dated 24 June 2022 prepared for Allianz Australia Workers’ Compensation (Victoria) Limited, she noted the plaintiff’s assessment on 23 June 2022 indicates post-traumatic stress disorder. His assessment on 31 October 2019 indicated moderately severe depression.[18]
[18] PCB 85
59Whilst his post-traumatic stress disorder symptoms had improved but not completely resolved, his symptoms gradually worsened whilst back at the workplace. Ms Whale referred to further incidents in the workplace and alleged bullying and harassment of the plaintiff. She also referred to the plaintiff’s exposure to further traumatic incidents at work, such as an uncontained fire and safety incidents which could have resulted in serious injury or death. In Ms Whale’s opinion his incapacity is the direct result of his work-related injury. She described his condition as worse since his failed attempt to return to work.
60Ms Whale’s opinion was that the plaintiff is unlikely to recover to the extent that he will be able to return to work.[19]
[19] PCB 86
61She noted he is relying on beta-blockers to manage his anxiety. In her opinion he needs fortnightly sessions to address his ongoing symptoms of post-traumatic stress disorder with mixed depression and anxiety.[20]
[20] PCB 86
62Ms Whale is of the opinion that the presence or perception of safety issues in any job could trigger the plaintiff’s symptoms of post-traumatic stress disorder.[21] In her opinion this means the plaintiff does not have the capacity to work in his pre‑injury role and these barriers mean he does not have the capacity to work in other suitable employment.
[21] PCB 87
63In her final report, dated 7 November 2022, prepared for the plaintiff’s lawyers, Ms Whale noted she had treated the plaintiff over 54 sessions, commencing July 2019. There was a gap from November 2020 until December 2021, when sessions recommenced.[22] Her report was extremely detailed and comprehensive.
[22] PCB 90
64Ms Whale detailed the plaintiff’s treatment, which included psychoeducation, emotional regulation with distress tolerance skills training, cognitive processing therapy, trauma-focused cognitive therapy with exposure, supportive counselling, and use of the ‘PTSD Coach Australia’ app to support his treatment and self-management of his symptoms.[23]
[23] PCB 91-2
65Ms Whale reports the plaintiff experienced an exacerbation of his post-traumatic stress disorder as a result of incidents in the workplace. She stated:
“In my opinion, Mr Agius’s perception that his workplace was not responding to his concerns about safety was directly linked to his fear of being injured again and fear of being traumatised further, and was likely to trigger his symptoms of post-traumatic stress disorder with mixed depression and anxiety.”[24]
[24] PCB 95
66Ms Whale also noted the plaintiff’s symptoms of post-traumatic stress disorder were more severe than they had been at the commencement of treatment, following a gap in treatment and the experiences reported by the plaintiff following his return to work. His testing also indicates severe depression, extremely severe anxiety, and severe stress.
Plaintiff’s medico-legal report
Associate Professor Abdul Khalid
67In his report dated 27 August 2022, Associate Professor Khalid, consultant psychiatrist noted the plaintiff is currently taking the beta-blocker Propranolol 10 mg as needed for social anxiety and that he uses Valium 5 mg mainly to sleep.[25]
[25] PCB 110
68He noted a prior history of depression on and off for 20 years and that the plaintiff has taken anti-depressant medication and Xanax on and off.
69Associate Professor Khalid’s diagnosis, based on the mental state examination and documents provided, was chronic post-traumatic stress disorder, chronic adjustment disorder with mixed anxiety and depressed mood, and aggravation of pre-existing major depressive disorder.[26]
[26] PCB 113
70He noted the plaintiff had a pre-existing recurrent major depressive disorder which was aggravated by the incident on 12 June 2019. Further, the plaintiff developed new psychiatric conditions in the form of chronic post-traumatic stress disorder and chronic adjustment disorder with mixed anxiety and depressed mood as a result of the workplace incident on 12 June 2019. Associate Professor Khalid was of the view the plaintiff’s symptoms, such as flashbacks triggered by the smell of chemicals, nightmares, decreased energy and motivation, decreased concentration, forgetfulness and impaired short-term memory, low mood, social anxiety, inability to socialise, low trust, being easily upset, insomnia, being easily irritated, decreased intimacy, and difficulties focusing, have become chronic.[27]
[27] PCB 114
work capacity
71Associate Professor Khalid was of the view, due to the plaintiff’s psychiatric conditions and injuries, that he does not have capacity for his pre-injury employment as a production/plant operator.[28] Further, he did not believe the plaintiff had capacity for any of the employment options identified in the AMS report and workplace assessment, nor did he consider the plaintiff could do any job on a consistent and reliable basis because of his persisting symptoms of post-traumatic stress disorder, adjustment disorder and major depressive disorder.
[28] PCB 114
72As the plaintiff’s symptoms are chronic, Associate Professor Khalid believes the plaintiff’s prognosis is guarded, and unlikely to improve significantly with further treatment.
The Defendant’s medico-legal reports
Dr Justin Lewis
73Dr Justin Lewis, consultant psychiatrist, prepared a report for Allianz Australia Workers’ Compensation (Victoria) Limited dated 18 September 2019.
74Dr Lewis noted the plaintiff’s long-standing history of depression and that his anti-depressant dose had increased from 25 mg to 50 mg.
75Dr Lewis diagnosed the plaintiff with an adjustment disorder with mixed anxiety, depression and traumatisation symptoms. A differential diagnosis would include post-traumatic stress disorder of mild severity, and the plaintiff presented with a mild to moderate severity recurrence of a pre-existing stable major depressive disorder.[29] His traumatisation symptoms including nightmares and avoidance behaviour were of mild to moderate severity.
[29] Defendant’s Court Book (“DCB”) 25
76Dr Lewis was of the opinion the plaintiff’s adjustment disorder/post-traumatic stress disorder is materially contributed to by the claimed workplace injury.
work capacity
77I note Dr Lewis’s report predates the plaintiff’s return to work from May 2020 to December 2021.
78Dr Lewis is of the view the plaintiff is completely incapacitated to undertake pre-injury duties at this point in time, and that he would be unable to work with chemicals given his heightened psychological state and the risk of potential re‑traumatisation.[30]
[30] DCB 26
79Dr Lewis is of the view the plaintiff has capacity to undertake alternative duties, up to two days a week potentially in an administrative role, with his current employer.
Dr Stephen Stern
80Dr Stephen Stern, consultant psychiatrist, prepared an independent impairment assessment report dated 24 September 2020.
81Dr Stern diagnosed the plaintiff with post-traumatic stress disorder according to the DSM-IV criteria. His psychiatric state is related to the work accident on 12 June 2019 and the resultant injury to his right leg.[31]
[31] DCB 33
82Dr Stern noted the plaintiff’s history of depression.
83Dr Stern assessed the plaintiff as having a whole person psychiatric impairment of 15%, 2% of which was due to pre-existing factors and the remainder to the work accident of 12 June 2019.[32]
[32] DCB 34-5
Dr Martin van der Linden
84Dr Martin van der Linden, consultant psychiatrist, prepared a report for Allianz Australia Workers’ Compensation (Victoria) Limited dated 23 February 2022.
85Dr van der Linden diagnosed the plaintiff as suffering from post-traumatic stress disorder with depressed and anxious mood (chronic) as well as comorbid major depression. His symptoms included nightmares; flashbacks; being angry and irritable; suffering from insomnia and intrusive thoughts; feeling anxious and hypervigilant; being anxious while driving; having an increased startle reflex; being triggered by handling of chemicals, driving, going up ladders and mowing lawns; feeling sad and depressed and paranoid about people watching him; having very low motivation and non-existent energy; not enjoying past pleasurable pursuits; and being socially withdrawn, avoidant and reticent. These symptoms have remained the same since he ceased work.[33]
[33] DCB 47 and 50
86Dr van der Linden concluded:
“In the context of sustaining a severe injury at his place of work, and subsequent perceived harassment and bullying as well as perceived unsafe work practices, he developed nightmares, flashbacks, increased startle reflex, anxiety, depression, insomnia, hypervigilance and avoidance behaviour. On clinical examination he was anxious and depressed.
I believe that Mr Agius is suffering from a Post Traumatic Stress Disorder with Depressed and Anxious Mood (chronic) as well as Co-morbid Major Depression.”[34]
[34] DCB 51
work capacity
87Dr van der Linden was not of the view the plaintiff has capacity for pre-injury duties and does not believe he currently has any capacity for work, even if restrictions or modifications could be imposed.[35]
[35] DCB 50
Dr Natalie Krapivensky
88Dr Natalie Krapivensky, consultant psychiatrist, prepared a report dated 8 November 2022.
89Dr Krapivensky assessed the plaintiff on 25 October 2022 via Zoom. She asked him to detail the symptoms of his post-traumatic stress disorder, and quoted him as stating:
“My mind drifts to the condition that I have … my sleep is disrupted and I just don’t enjoy life as much as I used to.”[36]
[36]DCB 58
90Despite noting he was unable to provide further details about what he meant, Dr Krapivensky noted throughout the interview he had excellent memory, concentration, recall and was able to provide a very clear history of events.[37]
[37] DCB 58
91In terms of his current psychiatric treatment, she noted:
“He is not receiving any psychiatric treatment for any psychological or psychiatric injury relevant to the burn to right leg in 2019.”[38]
[38]DCB 59
92Dr Krapivensky noted the plaintiff did not report the description of symptoms of post-traumatic stress disorder in Dr van der Linden’s report to her. She also reiterated he is not receiving any psychiatric treatment for PTSD.[39]
[39] DCB 60
93In summary, Dr Krapivensky noted the plaintiff:
“has now been away from the workplace and any dangers associated with the workplace for more than 12 months and it seems that his symptoms of traumatisation have largely subsided, and ... there have been several significant intervening events including his wife’s health and COVID, which ... affected him significantly.”[40]
[40]DCB 60
94Dr Krapivensky concluded:
“From a psychiatric perspective, he has no current psychiatric condition and no psychiatric incapacity for the work that he was doing prior to his dismissal in raw materials and no incapacity for suitable [or] alternative duties.”[41]
[41]DCB 61
work capacity
95Dr Krapivensky was also of the view from a psychiatric perspective the plaintiff has capacity to return to modified duties which he performed when he returned to work in 2020, although she noted it would be best for him not to be engaged in any work with hazardous materials. She noted he had capacity to work as a factory process worker, guarded labourer, forklift driver, road traffic controller and OH&S advisor.[42]
[42] DCB 61-2
Causation of the psychiatric injury
96Having read the psychiatric material and taking into account the plaintiff’s evidence in court, I am satisfied the causation of the plaintiff’s current symptoms is as a result of, or materially caused by, the injury sustained at work on 12 June 2019.
97I accept the plaintiff’s argument that his symptoms all arise from the work-related accident on 12 June 2019, including when he returned to work: namely, his sensitivity to the smell of chemicals and his perception of safety issues at work.
98I do not accept the defendant’s argument that the plaintiff’s psychiatric condition of post-traumatic stress disorder had completely resolved prior to him returning to work in mid-2020 for the following reasons.
99Firstly, when he returned to work he still suffered from post-traumatic stress disorder. This is reflected by the fact his return to work was gradual, with graduated hours, in a different area to his pre-injury employment. His psychologist, Ms Whale, noted in her report dated 29 May 2020 his progress back at work should be reviewed in terms of his post-traumatic stress disorder and anxiety symptoms prior to reintroducing him to his pre-injury work environment.[43]
[43] PCB 77
100This report indicates that when the plaintiff returned to work he was still suffering from post-traumatic stress disorder although he was improving. When he returned to Ms Whale in January 2022, his post-traumatic stress disorder score was significantly higher than at the beginning of his treatment.[44]
[44] PCB 83
101At the time of Ms Whale’s report dated 29 May 2020, his prognosis was good given his improved post-traumatic stress disorder symptoms. When asked about other workplace modifications, she noted he required the opportunity to take additional breaks to manage anxiety and the opportunity to attend psychological treatment sessions as required. She specifically noted his condition could be aggravated or exacerbated if he encountered another traumatic experience and that appropriate controls should be in place in the employment to minimise the risk of further traumatic exposure to reduce the likelihood of an exacerbation of his post-traumatic stress disorder symptoms.
102Secondly, I am not of the view it follows that his cessation of psychological treatment for 11 months and the fact that he returned to full-time work between May 2020 and December 2021 establishes his psychiatric condition had completely resolved. Although he stopped his anti-depressants during this period, historically he had done the same thing over a period of 20 years.
103I do not accept it is proof that a condition such as post-traumatic stress disorder has completely resolved simply because aspects of treatment had ceased and he had returned to work.
104Some of the medical reports refer to the plaintiff’s allegations about bullying and harassment when he returned to work. The case put by the plaintiff was that rather than these being a separate cause of action, the period of return to work was marked by the plaintiff’s heightened reactions to chemical smells and his perception of risks in the workplace. Both these symptoms, the triggering effect of chemicals and hypervigilance, are symptoms of his post-traumatic stress disorder chronicled in the histories taken from the plaintiff in the reports provided by the forensic psychiatrists.
105The plaintiff was also candid in his evidence about being deeply upset about what he perceived was a false allegation of a safety breach made against him by his employer. Despite the still fresh sense of grievance admitted by the plaintiff, this incident was not put as part of the plaintiff’s case. I do not accept the defendant’s counsel’s submission that the disciplinary action is the real reason for the plaintiff’s incapacity and injury.[45]
[45] T 23-24
106The defendant’s counsel also relied on other non-work-related stressors as the cause of his current symptoms, such as his wife’s illness and COVID. These were scarcely referenced in the affidavits or medical materials. In his second affidavit the plaintiff referred to experiencing sleep issues prior to the accident, “related to family stressors regarding my wife’s health at that time”,[46] and I do not accept these were substantial contributors to the plaintiff’s psychiatric symptoms.
[46] PCB 25
107Thirdly, the medical opinions of his GP Dr Smith, Ms Whale, Associate Professor Khalid, Dr Stern, Dr Lewis and Dr van der Linden all support the contention that the plaintiff suffers from post-traumatic stress disorder related to the work accident on 12 June 2019.
Prior mental health
108Post-accident, all the psychiatric opinions (except Dr Krapivensky) support the plaintiff has a new diagnosis of post-traumatic stress disorder.
109His case has not been put as an aggravation of a pre-existing condition, although many of the psychiatric reports refer to this as an additional sequala to the accident.
110His pre-accident long-standing history of depression has been referred to in all the medical reports. In his first affidavit the plaintiff refers to having previously used anti-depressants.[47]
[47] PCB 7
111The first report by Ms Whale dated 1 August 2019 referred to his pre-existing condition of anxiety and depression. Associate Professor Khalid referred to his prior history of depression “on and off for 20 years” and that “he had taken anti-depressant medication and Xanax on and off.”[48] Dr Lewis noted the plaintiff’s long-standing history of depression and that his anti-depressant dose had increased from 25 mg to 50 mg. Dr Stern, noting the plaintiff’s history of depression, attributed only 2% due to pre-existing factors to his assessment of 15% psychiatric impairment.
[48] PCB 110
112The plaintiff’s history of depression is well documented in the medical reports, which clearly distinguish his historical anxiety and depression from his post-traumatic stress disorder attributable to the workplace injury on 12 June 2019.
113I note the plaintiff’s prior mental health history was no impediment to his previous work history.
114For the above reasons I do not accept the defendant’s contention that the plaintiff’s psychiatric injury faces an “insurmountable obstacle” on the basis of his pre-accident mental health.
Dr Krapivensky’s report
115Dr Krapivensky’s report is the clear outlier in the case.
116The plaintiff’s treating doctors, Dr Adam Smith and psychologist Ms Diana Whale, have treated the plaintiff over a number of years. Ms Whale’s reports are meticulous and detailed and reflect the 54 sessions she has had with the plaintiff.
117By contrast, Dr Krapivensky conducted one assessment, not in person, with the plaintiff. Despite him giving a vague and general description of his post-traumatic stress disorder symptoms (as Dr Krapivensky notes, in contrast to the detail in Dr van der Linden’s report), she notes, somewhat contradictorily, his excellent memory, concentration, recall and very clear history of events.
118Further, Dr Krapivensky incorrectly states the plaintiff is not having psychiatric treatment for psychological or psychiatric injury, when he is still under the care of Ms Whale.
119All the medico-legal opinions, including two of the defendant’s experts, Dr Lewis and Dr Stern, support the plaintiff’s diagnosis of post-traumatic stress disorder.
120For these reasons I prefer the opinions of the plaintiff’s treating clinicians, and the weight of the other medico-legal reports’ diagnosis of post-traumatic stress disorder over Dr Krapivensky’s opinion that the plaintiff has no psychiatric condition.
Is the psychiatric injury permanent severe mental or permanent severe behavioural disturbance or disorder?
121The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[49] Crockett and Southwell JJ stated in respect of the definition of “serious injury” in paragraph (a):
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[49][1992] 2 VR 129 at 140
122In order to succeed the plaintiff must prove on the balance of probabilities his psychiatric condition is “severe”.
123The clear thrust of the plaintiff’s case is that he was a well, hard-working man prior to this accident, and the psychiatric injury he sustained as a result of the injury has had a devastating effect on him.
124The evidence supports this position.
125I have detailed the plaintiff’s affidavit material outlining the plaintiff’s symptoms. He described the effect of the workplace accident in these terms:
“At the time of the accident I was able to function well and did not suffer from ongoing anxiety symptoms. I have never been the same person since 12 June 2019.”[50]
[50] PCB 25
126He has been anxious about safety at home, particularly regarding driving, machinery, and chemicals. He has daily panic attacks. He has difficulty sleeping and has nightmares. His anxiety is triggered by smelling chemicals or reminders about work. On bad days, 2-3 days a week, he stays in bed and does not want to “face the world”.[51] His short-term memory and concentration has been affected. He does not enjoy his interests, such as attending the football, and finds it difficult to enjoy any sort of activity.
[51] PCB 28
127His wife, Liliana Agius, affirmed an affidavit dated 18 November 2022. She has noticed mood and mental changes in the plaintiff since the accident. Prior to the accident she described him as positive, happy, he would smile and joke, he was productive and easy going.[52] She described him as a supportive, loving husband who would do a lot around the house, and they made plans together.
[52] PCB 23
128Since the accident she described him as having a very low mood; they argue heatedly, he is vulnerable, sensitive, and easily triggered. He avoids socialising, including with his family, and he has broken and inconsistent sleep. She stated: “I do not believe he is the man that he was prior to the accident.”[53]
[53] PCB 24
129Prior to the accident the plaintiff appeared to be a man enjoying a robust middle age, working hard in a manual role with a strong employment history and work ethic. Although he suffered from long-standing depression this had no impact on his work history, and the medical reports do not point to him having any underlying vulnerability or risk factors in his history.
130His transformation post-accident and further deterioration following his recent return to work has been profound. All the psychiatric reports, bar Dr Krapivensky, have identified a discrete psychological condition of post-traumatic stress disorder caused by the accident. This stands out as a defining event in his life, thus identifying a compensable injury referable to the incident and ensuing consequences.
131I am satisfied by the plaintiff’s evidence, his wife’s evidence, and the supporting psychiatric opinions, that the psychiatric consequences of the injury are serious for the plaintiff when judged in comparison with other cases and meets the test of being at least “very considerable” and certainly more than “significant” or “marked.”
Pecuniary loss
132In relation to the pre-injury earnings, as noted, the parties agree the plaintiff’s pre-injury gross income is $1,400 per week.[54] To establish the requisite 40 per cent loss, the plaintiff must show he is incapable of earning a sum greater than $840 per week.
[54] T 132, L 30-1
133His “with injury” earning capacity is assessed on what the plaintiff is earning, whether in suitable employment or not (s325(2)(f)(i)(A) of the Act), or capable of earning in suitable employment (s325(2)(f)(i)(B) of the Act) as at that date, whichever is greater.
134Suitable employment requires an objective test which looks at the worker’s suitability for work, taking into account matters such as age, education, experience, and residence.
135Relevant to this application, with respect to rehabilitation, pursuant to s325(2)(g) of the Act, the plaintiff must establish that retraining or rehabilitation in an employment sense has nothing to offer him in the future would give rise to the 40 per cent loss.
136I note the plaintiff had a strong work history of continuous employment up until the workplace accident on 12 June 2019. Even after having 11 months off with post-traumatic stress disorder, he was keen to return to work, as reflected in Ms Whale’s report of 29 May 2020. He was even keen to return to the same area of work pre-accident, and Ms Whale’s report details this and considers the supports required for this to occur. The plaintiff has tried full-time work for a significant period from mid-2020 to the end of 2021.
137The overwhelming medical evidence, which I have also detailed above, supports a finding the plaintiff has no capacity to return to employment. The only contrary medical opinion is from Dr Krapivensky, and I have previously outlined my reasons for discounting her opinion.
138The defendant has the onus to propose suitable employment for the plaintiff. The defendant’s counsel submits the AMS report identifies the plaintiff has capacity for work as a school crossing supervisor, an OH&S adviser, or a road traffic controller.
139I note the role of a school crossing supervisor will not bring him above the earning threshold.
140I accept the submissions that the plaintiff is not capable of retraining as a result of his symptoms of poor concentration and memory, and retraining would be necessary for him to qualify as an OH&S advisor or as a road traffic controller.
141I have my doubts as to the suitability of either of those roles, given the possibility of the requirement to attend a traumatic scene as an OH&S adviser or witness a traumatic event when in road traffic management, and the triggering effect that may pose for the plaintiff. For example, the plaintiff has already had his post-traumatic stress disorder exacerbated by traumatic incidents at his workplace during mid 2020 to the end of 2021.
142Considering all the evidence, I conclude the plaintiff is not capable of returning to work. The jobs proposed by the defendant are not suitable for the reasons articulated.
Is the loss of earning capacity permanent?
143The plaintiff must satisfy the Court he will continue permanently to suffer a loss of earning capacity of 40 per cent or more (s325(2)(e)(ii) of the Act).
144The medical opinions of Ms Whale, Associate Professor Khalid, Dr Lewis and Dr Van der Linden support a finding that the plaintiff’s post-traumatic stress disorder is chronic and not likely to improve for the foreseeable future. He has a guarded prognosis.
145I accept this will remain so for the foreseeable future and I find the plaintiff will continue to permanently suffer a loss of earning capacity of 40 per cent or more.
146I grant leave for the plaintiff to bring proceedings under (c) for pain and suffering and the recovery for the loss of earning capacity.
Claim based on scarring and disfigurement
147At the request of the parties after the plaintiff was sworn in, I viewed the scarring to the plaintiff’s right lower leg. Photos of the scarring were also attached to the plaintiff’s first affidavit. The photos at pages 11-14 of the Plaintiff’s Court Book accurately represent the scar as I saw it.
Medical evidence regarding the disfigurement
148Mr John Crock, plastic and reconstructive surgeon, prepared a report dated 12 October 2022.
149Although there is reference to scarring on the plaintiff’s forearm in his second affidavit and referred to in Mr Crock’s report, I was only referred in evidence to scarring on the plaintiff’s right lower leg, and this is the disfigurement I consider for the purposes of (b).
150Mr Crock noted the plaintiff has a scar measuring 21cm x 7cm described as a healed burn on his right leg from above the ankle to below the knee. He noted the area is hyperpigmented and motley in appearance, in areas alternatively brown, pink or pale. The area is hypersensitive to touch, and sensitive to sunlight and light trauma.[55]
[55] PCB 120
151I refer again to the plaintiff’s affidavits and his description of the consequences of scarring. The scarring is visible, hyperpigmented, and he has a loss of hair, and the appearance concerns him. He feels embarrassed to wear shorts in summer which is something he would previously always do. He described the scar as extremely ugly. It is sensitive to the sun, and he has to be very careful with sunscreen. It itches at night.
152In his second affidavit he described being conscious of the way the scar looks, and not liking it and being conscious of people looking at it in summer when it is exposed. This impacts his enjoyment of fishing and swimming because of the risk of sunburn.
Does the scar meet the test of being a permanent serious disfigurement?
153I note the evidence from Mr Crock’s report is that the scar has stabilised and will not alter by more than 3% in the next twelve months. To that end I am satisfied the scar is permanent.
154I take into account the number of scars, location, size and degree of obviousness.[56]
[56] Baker v Transport Accident Commission [1997] 1 VR 662
155In this case there are a large number of scars scattered over a significant area on the front and side of the plaintiff’s lower leg.
156I am not of the view that it is particularly obvious or prominent due to its position on the lower leg, and, although hyperpigmented, the colours are not strong or vivid.
157There is a subjective and objective element to assessing whether the disfigurement is serious. Whilst it is not in a conspicuous place on his body which is always exposed, it is exposed during summer, when the plaintiff stated he preferred wearing shorts and did a lot of swimming.
158He was quite muted in his evidence about its consequences, and he agreed he has to be assiduous with sunscreen as it is sun sensitive.
159He agreed the most significant consequence of the scarring to his right leg is that he has to wear sunscreen and be quite careful about that, as well as being self-conscious about it.[57]
[57] T 84
160The consequences for the plaintiff include his self-consciousness and he referred to it as extremely ugly. Although the scarring is over a large area, given its position and colour it is not particularly prominent or easily noticeable. I am of the view, based on seeing the scarring and his evidence as to consequences, that although it is not insignificant or trivial, it does not meet the test of having at least a very considerable consequence or being more than significant or marked as a permanent serious disfigurement.
161I refuse leave for the plaintiff to bring proceedings under (b) for pain and suffering.
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