Barford v Victorian WorkCover Authority
[2023] VCC 998
•21 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-04190
| DANIEL BARFORD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2023 | |
DATE OF JUDGMENT: | 21 June 2023 | |
CASE MAY BE CITED AS: | Barford v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 998 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – history of mental illness predating work injury -- aggravation of underlying mental illness – whether aggravation remains extant – whether the plaintiff has capacity to return to work on psychiatric grounds – evidence from plaintiff’s mother as to extent of exacerbation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr L Allan | Slater & Gordon Lawyers |
| For the Defendant | Mr B McKenzie | MinterEllison |
HIS HONOUR:
Introduction
1Mr Barford makes application for a determination that he has sustained a severe mental or permanent severe behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury in the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). Mr Barford has a long history of mental illness which pre-dates his workplace injury in December 2017. His application raises two questions. First, has Mr Barford sustained a permanent aggravation of his longstanding mental illness? If that question is answered in his favour, then the second is whether that aggravation totally incapacitates him for suitable employment. I have answered both questions in his favour and as a result determine that he has sustained a serious injury on both pain and suffering and loss of earnings grounds. These are my reasons.
Brief relevant history
2When Mr Barford began his serious injury application, he made claim under both paragraph (a) for injury to his lower back and also under paragraph (c) for the aggravation of his underlying mental illness. At the commencement of the application, no reliance was placed on the paragraph (a) claim. As such, the chronology set out below will only briefly touch on his physical injuries and focus instead on the psychiatric component of the case which was pressed.
3Mr Barford was born in June 1983.
4He completed Year 12 and then left school intending to go into graphic design. That was not successful and he worked as a concreter with his father for a few years. He injured his back during that time.
5Between 2003 and 2007 he struggled to find work. In 2007 he worked for a year as a screen printer and labourer. From 2008 to 2011 he worked as a call centre operator in Bentleigh East. He then worked in another call centre for a short period of time but was largely unemployed for about four years.[1] During this time he worked with his parents renovating a home. He did some general labouring work there. During this time he was referred through Centrelink to an employment placement agency known as Echo. He did a work placement at Chef’s Hat in South Melbourne as a picker and packer and he worked there for about three weeks in 2015. He was then unemployed for a period of six months before beginning at Chemist Warehouse. This is where he sustained his work injury. He commenced at Chemist Warehouse in December 2016 as a storeman. He worked full time, Monday to Friday, being 10:00am to 6:00pm. His duties included receiving and unloading deliveries and occasionally working on the checkout and doing customer service.
[1]Defendant’s Court Book (“DCB”) 153, Plaintiff’s Amended Court Book (“PACB”) 9, at paragraph [6]
6On 8 December 2017, he injured his back while bending down at work.[2] He was off work for a few weeks and then returned to work. He returned to work full hours on modified duties primarily working on the registers.[3] The injury to his back was investigated and he was prescribed medication.
[2]PACB 11
[3]The footnotes in this judgment refer to the electronic numbering of the transcript of the hearing on 30 May 2023. Transcript (“T”) 59, Line (“L”) 23-27
7He attempted to cut his wrists with a box cutter in June 2018.
8He continued to work full-time throughout the remainder of 2018 and into 2019. However as he was unable to complete the core requirements of the job he was terminated on 10 July 2019. He has not worked since this time. The plaintiff’s case is that he is unable to return to work on a permanent basis.
Relevant medical history
9The plaintiff was diagnosed with clinical depression and anxiety during his late teenage years.[4] In his late teens it appears that he began smoking marijuana regularly and this continued for over 16 years.[5]
[4]PACB 85
[5]Ibid
10He was first diagnosed with depression and anxiety in the early 2000s.[6] He was prescribed Citalopram and then Escitalopram at various times, for depression and anxiety. Ultimately his treating doctor referred him to see Dr Brendan Spence, a psychiatrist in 2011. He diagnosed him with a generalised anxiety disorder and an adjustment disorder with a depressed mood. At the time he saw Dr Spence he was also seeing a psychologist but did not feel that it was useful. At that stage he was on Epilim and Lexapro.[7] Treatment with Dr Spence ended in 2012.[8] He had a short period of counselling with Terri Carlton, a psychologist, but this did not prove useful. Around this time he began to take Pristiq, an antidepressant, 100 milligrams per day. He remained on this dosage for the next seven years.[9]
[6]DCB 208
[7]DCB 208
[8]DCB 210
[9]DCB 226
11At the time when he sustained the injury, he was under the care of treating doctors at Ormond Medical Centre and saw Dr Praszkier. No medical report was received from that clinic.
12In 2017 he was placed onto Mirtazapine. His mother gave evidence that this was a trial to see if it could help with anxiety.[10]
[10]T91, L19-26
13Dr Lichtblau began prescribing an increased dose of Pristiq as well as Diazepam in mid-August 2019,[11] just after the plaintiff was terminated from his employment. He then referred Mr Barford to Dr Sanghvi, a psychiatrist. He had consultations with him in early 2020. He recorded a history of the plaintiff’s mood spiralling down following his injury and with a further exacerbation caused by the termination of his employment his anxiety got worse.[12] He recorded that Mr Barford was sleeping a lot during the day and his memory, concentration and motivation had worsened. He was having insomnia at night. He considered that there was no capacity for employment and that the Pristiq should be increased from 150 milligrams daily to 200 milligrams. He considered that regular sessions with a psychologist would be useful.[13]
[11]DCB 277
[12]PACB 67
[13]PACB 68
14The plaintiff then moved home to Cowes with his parents due to his worsening psychiatric state.[14] As a result he began seeing a doctor at the Grandview Family Clinic in Cowes, Dr McCormick.[15] He referred him to another psychiatrist, Dr Soitia.[16] He recorded that Mr Barford felt low and depressed. He recorded further that his sleep and appetite were disturbed, his concentration was very low with a lack of energy and anxiety was occurring all the time.[17] He added Valdoxan to his medication. At this time Dr Soitia considered that Mr Barford potentially had Attention Deficit Disorder (“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”). He referred him on to see Dr Al Wahab, a psychiatrist. He finalised a diagnosis of ADHD in mid-2021 and commenced Mr Barford on medication.[18] It was noted that his mood improved after that time. In particular, his mother reported that he had better energy and was feeling positive, less emotional and less distracted.[19] He was then discharged to the care of Dr Muruththettuwegama, a psychiatrist, in early 2022. Since that time Dr Muruththettuwegama has continued to see Mr Barford on occasion. No report has been tendered from Dr Muruththettuwegama but I am satisfied that extensive efforts have been made by the plaintiff in a timely manner to obtain such a report but it is unable to be obtained due to the intransigence of Dr Muruththettuwegama.
[14]PACB 52, at paragraph [6]; T92, L22-29.
[15]PACB 73
[16]PACB 65
[17]DCB 65
[18]DCB 215
[19]DCB 216
The parties’ contentions
15This case has a very narrow focus. This is because the plaintiff abandoned reliance on his paragraph (a) case in respect of his lower back injury. As to the paragraph (c) case, the parties agree on a number of things. First, they agree that the plaintiff had a pre-existing mental disorder. Broadly this is accepted as being a chronic Major Depressive Disorder (‘MDD) and generalised anxiety disorder.[20] Associate Professor Doherty notes approvingly that the Medical Panel opinions and the concurring IME opinion is “not often seen”[21] and confirms that diagnosis. He then goes on to note the pre‑existing psychological and psychiatric illnesses but does not specifically label them. Second, the evidence largely agrees that this pre‑existing condition was aggravated by the workplace injury on 8 December 2017.[22]
[20]Dr Weissman at PACB 93, Medical Panel at DCB 56, Medical Panel at DCB 39, Dr Grant at DCB 26
[21]DCB 79
[22]Associate Professor Doherty at DCB 79, Dr Grant at DCB 26, Dr Weissman at PACB 94, Medical Panel at DCB 29 and Medical Panel at DCB 56
16The first issue on which the parties conflict is whether that exacerbation remains extant. I find that it does. The first reason for this finding is that almost immediately after the workplace injury his medication dosage went from 100 milligrams of Pristiq to 150 milligrams per day. Then, upon review with Dr Sanghvi in 2020, the dosage was increased to 200 milligrams. This is a doubling of the dose that was being prescribed prior to the date of the injury. This increased dose remains his current prescription and he has been on this level of Pristiq for nearly three years now. If, as Dr Grant and Associate Professor Doherty opine, his condition has remitted to its pre‑injury state, then it could be expected his medication would also have returned to his pre‑injury state. It has not and I consider this strong evidence to support the finding that the aggravation has not remitted. Second, Mr Barford’s life circumstances have changed significantly since the injury. I consider this is a good temporal indicator as to the worsening of his situation and supports a finding that the aggravation remains extant. Of note, his ability to work was immediately disrupted. This is a position that all doctors agree on given that it is accepted that he had an exacerbation of his condition. This was not just for physical reasons. For example, he had an episode of attempted self-harm in June 2018 some six months after the injury. It is true that he remained at work from December 2017 to July 2019 on modified duties work and full time hours, however, his failure to be able to work his full duties work led to his termination and his psychiatric condition then worsened. This worsened mental state is borne out in the reporting of Dr Sanghvi.[23] Allied to this is the evidence of his mother. She provided an affidavit sworn on 19 May 2023 and was called for cross-examination. She was an impressive witness. She gave evidence in a clear and concise way. She was completely open in dealing with the issues about Mr Barford’s past; his marijuana use, his patchy job history and his past mental travails for example. She freely discussed the numerous letters she had written to various doctors seeking help for her son during his life. I considered her frankness in answering questions gave credence to her evidence. As a mother, she has been intimately involved in his treatment over many years. As a result, I found her evidence particularly useful because she was able to shed unique light on his pre and post-date of injury state.
[23]PACB 67-68
17It was first put to her that he had had significant mental health problems in the period from 2011 through 2013. She accepted this was the case. It was then put that the December 2017 injury had simply produced a repeat of the situation that had occurred between 2011 and 2013 with his mental health. Ms Barford was very clear in discussing how it was that after the 2011 and 2013 deterioration there had been a steady improvement.[24] When pressed, she repeated her evidence.[25] She contrasted this with the situation after December 2017. She said that after 2017 “… he fell into a really big, deep, deep, dark hole.”[26] She considered that after the date of injury the change in her son was considerable.[27] She described the situation where the decline in Mr Barford’s situation was such that he became so unwell that she and her husband had to bring Mr Barford to their home in Cowes to regain his health. They did this for over 18 months. Given Mr Barford was at this stage in his late thirties and had lived out of home for many years, this suggests a very serious quality to the exacerbation of his condition. It was then put that given Mr Barford had managed to move back out to independent living, it was a good sign that any exacerbation had ended. However, on this point Ms Barford’s evidence was that the plaintiff never fully recovered and that he had so many problems organising the move that she and her husband had to assist him every step of the way. She said this was in total contrast to the situation pre‑injury and remains the case.[28] Overall I record my finding that I accept Ms Barford as a witness of truth and I accept her evidence both in affidavit and in cross-examination as to Mr Barford’s worsened mental state.
[24]T84, L16
[25]T85, L8-13
[26]T91, L22-24
[27]T88, L3
[28]T96, L7-14
18It was said by the defendant that after the date of injury the plaintiff was diagnosed with ADD/ADHD and this explained, in part, his worsened condition. I would reject that submission as the ADD/ADHD had not arisen after the date of injury but was simply undiagnosed at that time. The symptoms had always been there but the psychiatric label had not been attached to them. The plaintiff managed to live independently and work full time with those symptoms, being the undiagnosed ADD/ADHD, the chronic MDD and the generalised adjustment disorder for years. Further, as noted above, according to Ms Barford, the ADD/ADHD medication prescribed by Dr Al Wahab had a positive effect and moderated these symptoms. Ms Barford’s evidence supports this.[29] In addition the Medical Panel noted the potential diagnosis of ADD/ADHD and it did not affect their finding of an ongoing extant aggravation of the depression and anxiety.[30] Associate Professor Doherty considered use of medication to treat ADHD worsened his mood and anxiety issues.[31] Dr Weissman only considered it may have an impact on his attention, concentration and focus.[32] Given the fact that the ADD/ADHD is a condition that predated the date of injury and has been treated, I consider the opinion of the Medical Panel more consistent with the overall lay evidence that it did not exacerbate the psychiatric condition that currently affects Mr Barford.[33] This is one basis on which I reject Associate Professor Doherty’s evidence. I note that Dr Weissman’s opinion as to whether the ADD/ADHD contributes to the overall psychiatric condition is unclear. This is in part because he does not accept that a diagnosis of ADD/ADHD can be made definitively. Having considered the ADD/ADHD issue and the Medical Panel’s opinion, he opines that there is ongoing employment-related chronic adjustment disorder with depressed and anxious mood.[34] His analysis is similar to that of the Medical Panel. I accept it. It represents a substantial body of evidence and is another reason I reject Associate Professor Doherty’s opinion.
[29]DCB 216
[30]DCB 53 and 55
[31]DCB 80
[32]PACB 94
[33]DCB 53 and 55. The Medical Panel did not accept the diagnosis of ADD/ADHD
[34]PACB 94
19Turning to consider the opinion of Associate Professor Doherty in more detail. The first part of his opinion was that any aggravation of psychiatric symptoms was temporary and has now remitted. I do not accept that evidence given it is not in conformity with the lay evidence of Ms Barford in particular, which I accept, as well as the change in plaintiff’s life circumstances and medication. It is clear that Associate Professor Doherty has taken a detailed history from the historical materials he was provided with and from the plaintiff. However, he did not have access to Ms Barford’s affidavit or oral evidence. As set out above, I find this evidence to be particularly illuminating of the situation before and after the date of injury. It is also consistent with both Medical Panel Opinions and Reasons and the opinion of Dr Weissman. I prefer that body of evidence to that of Associate Professor Doherty. This same reasoning applies in respect of the opinion of Dr Grant which I do not accept.
20Something must also be said about Mr Barford’s evidence. He was an unimpressive witness, at times was rude, non-responsive to questions, argumentative and had to be reminded on several occasions to answer the question. I accept that his evidence was inconsistent on matters such as his Panadol and Nurofen use. However, I find this inconsistency was confined to that topic and did not affect his evidence as to his psychiatric condition.
21The second part of Associate Professor Doherty’s opinion was that the plaintiff had a capacity to return to work on psychiatric grounds. This finding was intimately connected with his opinion that the exacerbation had remitted. As I have set out above, I do not accept that conclusion from Associate Professor Doherty and it follows that his opinion as to capacity for work also falls. The same applies to the reasoning of Dr Grant. Given that I do not accept their opinions in respect of either the severity of the exacerbation and therefore its impact on his capacity for work, it leaves me to consider the remaining opinions as to capacity for work. These are reasonably unanimous being that from Dr Weissman and the Medical Panel. Their conclusion is that he is psychiatrically incapacitated for work.[35]
[35]Dr Weissman at PACB 96 and the Medical Panel Opinion at DCB 40-41
22Given that finding that the plaintiff has for the foreseeable future lost his capacity for employment, there is no need to make an assessment of the pre‑injury earnings in the three years before and three years after that most fairly reflect his earning capacity and compare it then with the figure he is capable of earning today. By reason of Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, this finding is sufficient to dispose of this matter.
23Turning to consider the pain and suffering consequences. The factors which warrant a finding that he has sustained a severe mental disturbance or disorder are the following. First within a short time of his injury in December 2017 he sustained a degradation of his mental state such that he sought to cut himself with a box cutter across the wrists. As far as I can glean from the medical material before the Court this was the first such attempt of self harm in his history and speaks to the extreme nature of his psychological state. Since that time he has not attempted further episodes of self harm. The degradation of his psychological state to reach this point is further illuminated by his mother’s evidence that he began to get into a “…deep, deep, dark hole”. This robbed him of the ability to care for himself or function independently in the community such that his parents had to bring him home. As I have commented above for a man in his thirties who had lived out of home since essentially 18 years of age this is a significant consequence. While it could be said that the intense period of decline has abated somewhat he is clearly not at the position he was before the incident. This can be seen from the increased medication dose that he is on. This has been constant for three years. The Medical Panel has recorded that he continues to be socially withdrawn, suffer from fatigue and impaired concentration.[36] His mother gave evidence that she calls him regularly to check and also calls a housemate to check on Mr Barford.[37] This is all consistent with Ms Barford’s evidence that he remains significantly impaired in his day-to-day functioning.
[36]PACB 40, Dr McCormick at PACB 73
[37]T92, L5
24It is also necessary that some assessment be made of the function that he has retained. I find that he has retained the ability to live independently. He lives in a share house. He can perform the activities of daily living. He can drive. He has ceased psychology sessions with Ms Nogel in 2022 as he felt he had plateaued. When regard is had to his situation prior to the December 2017 injury, a young man able to hold down work and manage his life independently, I consider the contrast to be stark. In my judgment this represents impairment consequences which demonstrate a severe mental or permanent severe behavioural disturbance.
25For these reasons I will grant the plaintiff’s application in respect of paragraph (c) for both pain and suffering and loss of earning capacity.
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