Angelovski v TAC
[2022] VCC 296
•23 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05511
| LILJANA ANGELOVSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 February 2022 | |
DATE OF JUDGMENT: | 23 March 2022 | |
CASE MAY BE CITED AS: | Angelovski v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 296 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – Motor vehicle accident – Impairment to low back – Multiple injuries – Disentanglement of injuries – Whether Plaintiff’s evidence is inconsistent and unreliable – Claim under paragraph (a) and (c) of s 93(17) of the Transport Accident Act 1986 (Vic)
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Transport Accident Commission v Kamel [2011] VSCA 110; Petkovski v Galletti [1994] 1 VR 436; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Paragraph (a) application granted. Paragraph (c) application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey | Patrick Robinson & Co |
| For the Defendant | Mr R Middleton QC with Mr O Lesage | HWL Ebsworth Lawyers |
HIS HONOUR:
1Ms Lilijana Angelovski alleges that she sustained a low back injury in a motor vehicle accident on 6 August 2015. Ms Angelovski alleges that this accident has resulted in serious injuries to her low back and the development of a severe psychiatric condition. She submits that each of these conditions are sufficient to satisfy the test of being considered a serious injury within the meaning of s 93 of the Transport Accident Act 1986 (Vic) under both paragraphs (a) and (c) of the relevant test. The Defendant argues to the contrary, particularly that:
(i)there was no injury of a permanent nature caused in the motor vehicle accident;
(ii)if there was injury caused, it cannot be separated from other injuries to the low back that she had sustained in 2011 and 2018;
(iii)even if the injury itself can be isolated, the impairment consequences flowing from that injury (physical or mental) cannot be separated from the impairment consequences of numerous other injuries both before and after 2015; and lastly
(iv)even if those consequences flowing from the injury (physical or mental) in 2015 can be isolated, they do not rise to the level required to be considered serious for the low back physical injury and severe in respect of the alleged behavioural disturbance or disorder.
2For the reasons which follow, I reject the Defendant’s arguments. I find that Ms Angelovski sustained an injury to her low back in 2015. I find that the low back injury has resulted in long term impairment of a body function being the spine. I find the impairment consequences of that injury can be adequately identified and when assessed amongst the range of possible impairments does satisfy the statutory test of being considered serious.
3However, I find that while the 2015 accident caused a long term behavioural disturbance or disorder, the impairment consequences (1) cannot be separately identified as required and (2) even if they can be, they do not rise to the level which can be adjudged to be severe.
Brief chronology
4Ms Angelovski was born in Macedonia on 9 May 1951.[1] She completed about eight years of schooling and came to Australia in about 1967. She is married and has two adult children.
[1] Now known as the Republic of North Macedonia
5Her husband sustained a low back injury in about 2007 and has had three significant surgeries since that time. From about 2009, she commenced receiving a Disability Support Pension to care for her husband and has been his carer since that time.
6She has not worked since 2009.
7On 8 April 2011, Ms Angelovski slipped and fell while shopping at a Coles supermarket in Epping. She had pain in her back, left shoulder and left knee.[2] She was taken by ambulance to the Northern Hospital.[3] X-rays were performed which showed no fracture, either in the cervical spine, lumbar spine, pelvis or left shoulder.[4] The hospital notes recorded that she was recommended to have physiotherapy and take Panadeine Forte. At this stage, she was seeing Dr Peter Dzartov at the Epping Plaza Medical and Dental Centre. His notes record that she was tender and painful along the muscles in her back and she had a painful left shoulder.[5] It is not necessary at this stage to go into the detail of her consultations with her treating doctor. I will return to this at a later stage. Ms Angelovski remained the carer for her husband at home. She consulted her current solicitors who began a public liability claim against the shopping centre in respect of the fall. As a result, it was arranged for her to see Dr Peter Mangos, a medico-legal orthopaedic surgeon, in about May 2012. He recorded that Ms Angelovski had ongoing pain in her low back, which was her main problem, as well as left shoulder pain. Subsequently, in October 2013, proceedings were issued on her behalf in the County Court claiming damages arising from the 2011 fall at the shopping centre. As part of that claim, it was alleged that she had sustained an aggravation of lumbar spondylosis.
[2]Defendant’s Amended Court Book (“DCB”) 106
[3]DCB 79; DCB 106
[4]DCB 65
[5]DCB 106
8In about February 2014, the public liability claim resolved.
9On 6 August 2015, Ms Angelovski was involved in a motor vehicle accident the subject of this claim. At the time, her car was struck from behind by another car. She immediately complained to her treating doctor, had x‑rays performed, and was referred shortly afterwards to Dr Victor Karlov, a consultant physician. Throughout 2016, radiology showed that she had developed degenerative disc disease with bulges at the lower levels.[6]
[6]Plaintiff’s Court Book (“PCB”) 97; DCB 11
10Ms Angelovski commenced physiotherapy and began taking Panadeine Forte regularly, though it must be noted that the evidence in this regard is not exactly clear.
11Ms Angelovski was referred by her treating doctor to see Dr Surya Tipirneni, a consultant psychiatrist, at the beginning of 2018. At that stage, it was recorded that she was significantly hampered by chronic left-sided pain since the 2015 accident and was unable to sing, dance or do her gardening.[7]
[7]PCB 66
12On 15 June 2018, Ms Angelovski was involved in a second motor vehicle accident; she was a pedestrian struck by a vehicle.
13A Transport Accident Commission claim was lodged in respect of this accident. In the claim form, Ms Angelovski alleged that she sustained aggravation of her back pain and injured her right knee. She also claimed that it worsened her psychiatric condition.[8]
[8]PCB 23, at paragraph [18] of the Plaintiff’s Affidavit sworn 3 November 2021
14On 4 November 2018, Ms Angelovski fell off a box and aggravated the pain in her right knee. She was referred by her treating doctor to Mr Jim Keillerup, an orthopaedic surgeon who referred her on to Dr Terence Lim, a consultant in rehabilitation and pain medicine. On seeing Ms Angelovski on 8 August 2019, Dr Lim considered Ms Angelovski’s knee to be such a significant problem that he recommended she use a walking stick.[9] Ms Angelovski continues to use that walking stick. Ms Angelovski received advice from another orthopaedic surgeon, Mr David Love who opined that she was a potential candidate for a right knee replacement.[10] After consulting with her specialists again, Ms Angelovski decided against that course.[11]
[9] PCB 22, at paragraph [11]
[10] DCB 15
[11] DCB 16; PCB 22-23, at paragraph [14]
15Ms Angelovski has continued on since that time under the care of Dr Dzartov and her psychiatrist, Dr Tipirneni.
Causation
16In a case where it is alleged that there is an aggravation of a pre-existing condition, Ms Angelovski must establish what injury was caused by the accident in 2015. In order to do so, analysis must be made of the extent of the impairment of a body function before and after the relevant injury.[12] After identifying the injury, the next step is to ascertain whether or not the impairment consequences flowing from it constitute a serious injury.[13]
[12]Petkovski v Galletti [1994] 1 VR 436 at 444
[13] Ibid
17As it has been recorded above, Ms Angelovski slipped and fell at the Epping Plaza shopping centre on 8 April 2011. Immediately thereafter, she was taken by ambulance to the Northern Hospital. X-rays of the lumbar spine at that stage showed no fracture.[14] She was discharged with a note recording that she was to take Panadeine Forte, as needed, and commence physiotherapy. In evidence, Ms Angelovski said that her main problem arising from the 2011 fall was in respect of her left shoulder.[15] However, it must be noted immediately that this evidence was somewhat unclear. Earlier, she had said that she might have felt low back pain, but she really could not remember whether this was involved.[16] On this point, I find her oral evidence to be somewhat confusing. However, my task is to consider all of the evidence and not just her viva voce evidence.
[14] DCB 8; DCB 51
[15]Transcript (“T”) 13, Line (“L”) 21-23
[16]T12, L24-30
18Turning to look at the medical notes from her treating doctor. I note that Dr Dzartov has been her treating doctor since 2011 and was treating her at the time of the 2011 fall. I consider this provides a solid foundation to consider her specific injuries in the context of her overall health. His long term treatment of Ms Angelovski lends weight and credibility to his evidence. The first note of Ms Angelovski’s attendance with Dr Dzartov where she complained of pain in the back, left shoulder and left knee is on 8 April 2011.[17] A week later, Ms Angelovski continued to complain of pain in the left flank and pain in the left shoulder.[18] It was noted that physiotherapy and Panadeine Forte were the treatments Ms Angelovski was to receive for her pain.
[17]DCB 106
[18] DCB 7
19Ms Angelovski had an emergency presentation at the Northern Hospital Emergency Department in early May 2011 with unspecified backache and potentially kidney problems.[19] Throughout 2011, she continued to complain sporadically of pain in the back, and particularly along the left flank. Indeed, it was accepted by the Plaintiff’s counsel and also Ms Angelovski that the pain in her low back continued on for several months after the 2011 fall.[20] Plaintiff’s counsel submitted that the note in Dr Mangos’ report from May 2012 was also accurate and that there was no doubt that the low back pain was continuing at this time.[21] Thereafter, however, counsel submitted that the low back pain subsided, and really it was the left shoulder that was the dominant problem.[22] While it is true that Dr Mangos’ report records that Ms Angelovski’s main problem was chronic low back pain, when reference is had to the clinical notes of Dr Dzartov around this time, they do not support a finding of ongoing back pain.[23] In fact, numerous consultations after May 2012 do not refer to the low back as being an ongoing problem and in fact dealt with other conditions which she had.[24] In fact, when Ms Angelovski was sent to see Dr Muhamed Nathar, a medico legal psychiatrist in the course of the public liability claim, he took a history of her current problems.[25] He noted that she took Panadeine Forte, up to four a day when the pain was bad but when read carefully, his report relates this to ongoing left shoulder problems.[26] There is then a paucity of notes referring to any back pain whatsoever through 2014. In fact, exhibit D5, which was a tendered report of Dr Dzartov from 10 January 2014 notes left flank pain but nothing about low back pain. These two reports of Dr Nathar and Dr Dzartov, close in time, indicate quite strongly that the low back pain had dissipated, certainly by mid-January 2014. Then, when regard is had to 2015, it can be seen that there is only one recording of Panadeine Forte for “neck … back and arm pian [sic]”.[27] But thereafter, once again, despite numerous consultations between March and August 2015, there is no further complaint of low back pain recorded.
[19]DCB 5
[20] T77, L23-26
[21] T78, L3-6; DCB 23
[22]T79, L2-8
[23] DCB 97, See Dr Vaso Peter Dzartov’s note dated 29 March 2012
[24] T5, L18-21; T78, L13-18; DCB 95-96
[25] DCB 24
[26] DCB 26
[27]Defendant’s Original Court Book (“DOCB”) 174
20Given the above, I find that Ms Angelovski sustained a soft tissue injury to her low back in the 2011 fall. This caused low back pain for a period of time which was managed by Panadeine Forte on occasion, and perhaps some physiotherapy. Neither physiotherapy or Panadeine Forte was required on a consistent basis for low back pain. I find that by the time of mid-January 2014, the low back pain had essentially resolved and required no ongoing physiotherapy or Panadeine Forte.
21I find that Ms Angelovski was in a position where she was caring for her husband, performing all household tasks that she was required to, and this involved things such as vacuuming, mopping and cleaning. I find that she drove her car and enjoyed a social life with her family. I find that she also mowed the lawns.
22Turning to the second part of what Ms Angelovski must demonstrate in the case of an aggravation injury, Ms Angelovski must demonstrate what injury was caused by the accident. In this case, I find that, as a result of the motor vehicle accident in August 2015, she sustained an aggravation of degenerative changes in her lumbar spine. I come to that conclusion on the basis of the following matters.
23First, the circumstances of the accident. There was a substantial collision to the rear of her vehicle. It was sufficient to produce immediate pain. An ambulance was called and Ms Angelovski was taken to the hospital.
24Secondly, the radiology about the time of the August 2015 accident. The x-ray was similar in appearance to that from 2011.[28] However, an MRI scan which I note to be much more sensitive for its assessment of physiological change, showed broad based disc bulging at L4-5 and a right paracentral bulging disc at L5-S contacting and mildly impinging on the traversing S1 nerve on the right.[29] This is substantially different to the 2011 x-ray which I consider shows a worsened structural position of the spine.
[28]DCB 69
[29]PCB 95
25Thirdly, the MRI scan was conducted under a referral from Dr Karlov, the physician who opined that the cause of her back injuries was the motor vehicle accident of 2015.[30] After the MRI scan, however he recorded that the bulging disc was lower than the site of the main pain.[31] This curtails the force of his conclusion but I consider some weight is still to be accorded to it.
[30]DCB 9
[31] DCB 10
26Fourthly, Ms Angelovski has required physiotherapy on nearly a twice weekly basis since the August 2015 accident.[32] I find this demonstrates a substantial worsening of her physical condition after the 2015 accident. In contrast to the 2011 episode, she now requires ongoing treatment to manage her pain and maintain function.
[32]DCB 32
27Fifthly, the medico-legal reporting suggests that the August 2015 accident caused her ongoing back pain, need for physiotherapy and Panadeine Forte. While uncertainty was expressed about the cause of the low back pain by Dr Ian Stone of the Northern Hospital,[33] I prefer the evidence of Dr Karlov and Mr Graeme Doig, as they were specifically considering the cause of her ongoing pain.
[33]DCB 11
Impairment consequences
28In Peak Engineering & Anor v McKenzie,[34] it was made clear that in order to perform an assessment of the impairment consequences flowing from a particular injury in a situation where there are other impairment consequences from other causes, it is necessary first to make an assessment of the overall impairment consequences and then identify those consequences which can be isolated and said to arise because of the subject accident.[35]
[34] [2014] VSCA 67
[35] Ibid at [24]
29Here, the Defendant argues that there are a number of competing injuries which have all led to impairment consequences which are enmeshed with the impairment consequences said to flow from the 2015 accident. These other impairment consequences are said to flow from:
(i)low back injury from 2011;
(ii)left shoulder injury from 2011;
(iii)a further motor vehicle accident in 2018 where she sustained low back injury and right knee injury.
30The starting point for this analysis is the evidence of Ms Angelovski. I begin by recording my finding that Ms Angelovski was a poor historian. She gave inconsistent and at times contradictory evidence during cross examination.
31For example, when asked in cross examination about whether or not she injured her low back in the 2011 accident, she initially answered that it was mainly her shoulder but that “[m]aybe it was the low back as well, but I can’t really remember, it was mainly my shoulder”.[36] Almost immediately upon this, however, she then said in answer to a question “So you did not claim to have suffered an injury to your low back? --- No”.[37] She gave non responsive answers on numerous occasions.[38]
[36]T12, L24-25
[37]T13, L28-29
[38]T26, L1-7
32In her affidavit evidence, she was also contradictory. For example, in her first affidavit she said that she had not been able to travel as a result of her 2015 accident.[39] In her second affidavit, she then recalled two overseas trips in one of which she travelled business class to Singapore, and also to Bali.[40] It is to be noted that the first affidavit was sworn only two and a half years after these trips. The second affidavit correcting this error was sworn three months after the first one. It seems implausible to me that Ms Angelovski would not recall such significant trips within such a short period of time of swearing her affidavit in the first instance.
[39] PCB 16, at paragraph [50]
[40] PCB 25, at paragraph [30]
33In terms of inconsistency, Ms Angelovski was quizzed about her taking of Panadeine Forte before the 2015 accident. She initially gave evidence that she did not take Panadeine Forte for her back pain before the 2015 accident, but rather said it was for her headaches. However, it is clearly noted in the treating doctor’s records that Panadeine Forte was prescribed for her after the 2011 accident and before 2015.
34I record that Ms Angelovski gave wildly contradictory evidence in respect of her mowing. In cross examination she gave evidence of not being able to mow because of the 2015 back injury.[41] However, her affidavit material notes very clearly that she sustained an aggravation of her pain while she was mowing in 2019. When this was put to her, she sought to suggest that it was her husband who was actually doing the mowing and she was only beside him sitting down to make sure that he did not fall over. The cross examination then proceeded with a further series of attempts by Ms Angelovski to explain what she had written in her affidavit. None of this was convincing. I formed the view that, on this occasion, Ms Angelovski’s affidavit material was misleading as to her capacity to mow the lawn after the 2015 accident.
[41] T24, L5-6
35I therefore find that Ms Angelovski’s evidence was unreliable and inconsistent in parts. Where it is not supported by extraneous material, I do not accept it.
36However, having said that, I formed the view after watching Ms Angelovski, she was not seeking to deliberately evade answering, but rather was a poor historian perhaps, understandably, struggling to identify key matters associated with a variety of differing injuries over the last 10 years of her life.
37With that said, I note that it is my task to assess the entirety of the evidence before the court and not simply make a decision based on inconsistencies or unreliability in the Plaintiff’s oral and written testimony.
38Turning now to consider the impairment consequences that Ms Angelovski complains of as at today.
Pain
39I will begin by detailing the overall impairment consequences that afflict Ms Angelovski. I will then identify those impairment consequences relating to the 2015 motor vehicle accident.
40Dr Dzartov, in his report of 13 January 2022, opines that since the 2015 accident Ms Angelovski has had constant low back pain, has been treated with physiotherapy, a TENS machine, and two CT-guided epidural injections in the L4-L5 region.[42] She experiences numbness in the left L5 distribution and has buttock pain. The pain wakes her two times per night. She has headaches, and her pain is what he considers to be chronic.[43]
[42]PCB 84
[43]PCB 85
41Her treating psychiatrist, Dr Tipirneni, considers that she has a chronic adjustment disorder of a depressive type and some PTSD symptomatology.[44] Dr Tipirneni confirms a reporting of chronic pain on the left side. Ms Angelovski requires Endep, 50 milligrams a day, and receives supportive therapy via consultations with Dr Tipirneni every four weeks.
[44] PCB 92
42As a result of the above matters, Ms Angelovski says that she is restricted in a number of areas of her life. These are set out at paragraphs [47] to [53] of her first affidavit.[45] Broadly, they can be labelled as interference with activities with her grandchildren, impact on gardening, impact on her social activities with family and friends, and impact on travelling such as going overseas. She also deposes to being limited in her ability to clean her house and cook meals.
[45] PCB 15-16, at paragraphs [47]-[53]
43In her second affidavit, Ms Angelovski deposes to being unable to get in and out of bed easily and also to assist her husband with his daily activities.
44Dealing now with those consequences related strictly to the low back arising from the 2015 motor vehicle accident.
45I have earlier set out my findings that, after the low back injury in 2011, Ms Angelovski had a self-limiting period of pain and limitation in relation to her back. This ended by mid-January 2014. Thereafter, I find that she was able to perform most duties in her normal way. This included all activities of daily living, interacting with her grandchildren, socialising normally and caring for her husband. I find that she was also able to do her gardening and drive normally. She also retained the ability to travel overseas if she so wished.
46Then, after the 2015 injury, she was significantly impacted by the consequences of the low back injury. I find that she had constant low back pain. She had pain in the left buttocks and leg. The pain was so significant it woke her twice per night. I find that she required physiotherapy two times per week which went on for several years. She took Panadeine Forte, at least once every second day. This substantial treatment regime speaks to the fact that her condition was painful and limiting. I consider that this had a substantial impact on her life and affected her ability to perform some, but not all, of her usual activities.
47In addition, account must be taken of the 2018 accident, where she was struck by a motor vehicle as a pedestrian. I consider this aggravated her low back pain, but also left her with right knee problems. The right knee problems became so chronic that she was considered a candidate for a total knee replacement by the end of 2019 and was given a walking stick. I consider that these injuries to her right knee rendered such activities as dancing and remaining on her feet for a period of time to socialise difficult, if not impossible. I therefore reject the submission that her inability to dance or socialise as a result of her back condition was caused by the 2015 accident.
48Similarly, I do not accept the evidence that her 2015 back injury reduced her ability to go on long drives with her grandchildren, which was one of the activities she deposed to. Her evidence given in transcript was that she did not drive because she was too frightened.
49I similarly do not accept that her low back injury stopped her from mowing the lawn. I prefer the evidence in her affidavit that she mowed the lawn as of 2019, and do not accept the evidence given in her subsequent affidavit. I similarly do not accept that the low back injury from 2015 has resulted in her not being able to sleep at night.[46]
[46] T22, L10-15
50I similarly do not accept the evidence in her affidavit that she was unable to travel overseas by reason of her low back injury. This is because after the 2015 accident she travelled to both Bali and Singapore.
51Having stripped away those consequences unrelated to the 2015 motor vehicle accident, I consider in summary that as a result of the 2015 aggravation of her low back injury she is experiencing chronic ongoing pain for which she takes two to three Panadeine Fortes every two to three days and has physiotherapy .[47] She is still able to drive, perform some gardening work such as mowing, and is able to travel overseas. She is able to continue to care for her husband though, perhaps, limited in minor ways. She continues to see her grandchildren and entertain them at her home.
[47] T38, L26-L29; T36, L3-L4; Dr Doig outlines at DCB 32 that she took Panadeine Forte, and had
physiotherapy twice weekly for two years; PCB 12, at paragraph [14] and PCB 13, at paragraph [19] the Plaintiff says that she does physiotherapy; PCB 23, at paragraph [24] she deposes that she hasn’t been able to attend the Physiotherapist because of lockdown but intends to go back.
52Overall, I consider the fact that she continues to experience significant low back pain, that is constant and is requiring ongoing physiotherapy and medication sufficient to warrant a determination that she has sustained a serious injury. I am fortified in this view because I note the obiter dictum of Justice J Forrest that this is a gateway provision and should be treated as such.[48] I also consider that, as an elderly lady, by the time of the 2015 accident, she had few active recreational pursuits in life and that her main interests were in caring for her husband and her home duties. These have been impacted by her low back injury as she is not able to care for her husband as she used to, and also is not able to mop and vacuum as she used to. These matters were of great importance to her. To have those caring abilities taken away from her weigh more heavily than on most.
[48] Acir v Frosster Pty Ltd [2009] VSC 454 at [171]
53In the context of her life, these are serious imposts. For these reasons I will grant Ms Angelovski a serious injury certificate in respect of her low back injury arising from the August 2015 incident.
The paragraph (c) application
54This leads me to consider whether or not the claimed mental disturbance or disorder arising from the 2015 injury is one that could be considered severe. I consider that the state of the evidence is such that I am unable to determine whether or not her condition is severe, as the majority of the medical evidence opines that her current depression and PTSD symptomatology is apportionable between the 2015 and 2018 incidents. No attempt is made in the medical opinion to elucidate which mental consequences are referable to the 2015 incident.
55Importantly, the treating psychiatrist, Dr Tipirneni, who is in the best position to gauge these matters, considers that the 2015 accident was the only major trigger for her anxiety and depression. However, this does not seem to me to take into account the very significant effect of the 2018 accident which can be seen from the chronology Dr Tiperneni takes. Dr George Wahr and Dr Nicholas Ingram apportioned the overall condition on a percentage basis and no more.[49] They attributed the majority of the psychiatric impairment to the 2015 accident but consider the 2018 incident had some effect. This fits with the overall condition of Ms Angelovski and I accept that there is an apportionment to be made. I therefore put Dr Tipernini’s opinion aside on this point.
[49] PCB 117; DCB 43
56Having accepted the medico-legal opinion however I do not consider this leaves me in a position to attribute any particular mental impairment consequence to that apportioned component as required in Peak.[50] I deny Ms Angelovski’s paragraph (c) claim on this basis.
[50] Peak Engineering & Anor v McKenzie [2014] VSCA 67
57In any event, and if I was wrong as set out immediately above I consider that Ms Angelovski’s current psychiatric condition in total, being that of chronic depression with agitation and some PTSD symptomatology as Dr Tipirneni opines, does not rise to the level of being considered a severe mental condition or behavioural disorder.
58I deny Ms Angelovski’s paragraph (c) claim on this basis also.
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