Bendzius v Victorian WorkCover Authority
[2019] VCC 915
•27 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04900
| PETER PAUL BENDZIUS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2019 | |
DATE OF JUDGMENT: | 27 June 2019 | |
CASE MAY BE CITED AS: | Bendzius v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 915 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent severe mental or permanent severe behavioural disturbance or disorder – pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889
Judgment: Leave granted in relation to the pain and suffering consequence of the plaintiff’s psychiatric disorder. Application in relation to loss of earning capacity dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith QC with Mr P G Hamilton | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr P D Elliott QC with Ms A Bannon | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Peter Bendzius seeks leave to start a proceeding for damages for pain and suffering and for loss of earning capacity. He alleges suffering a form of “serious injury”, in that he sustained a permanent severe mental or permanent severe behavioural disturbance or disorder.[1]
[1]Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013
2 The response to his application has one unusual feature. In relation to loss of earning capacity, the Victorian WorkCover Authority asserts Mr Bendzius cannot prove he would have worked beyond the age of sixty-five.
Circumstances
3 In 1967, Mr Bendzius left school at the age of fifteen. He worked at several unskilled jobs before a colourful stint in the Army. He married at about twenty-two. But it lasted only four years. There is one child, a woman now aged thirty-nine, from whom he is estranged. During his marriage, he started working as a glazier for Oliver Davies. This became his principal occupation, working for about twenty-eight years, whether employed or self-employed. His time as a glazier has not been continuous, having been interrupted by short stints in other jobs and the incapacitating effects of injuries at work. The latter has included:
(a) in about 1997, he tore a cartilage in his left knee and was off work for about twelve months;
(b) on 13 December 2003, he broke his left humerus and injured his left shoulder. These were significant injuries, leaving him off work for about five years;
(c) on 4 June 2010, while working for a small company in Carrum Downs, he experienced pain in his left foot and ankle. He stopped working and while receiving weekly payments, he was sacked;
(d) in 2013, he suffered a double hernia.
4 For some of these events, he has sought compensation, sometimes successfully. Although cross-examined about some of these claims for compensation, I found no value in knowing about them.
5 In March 2010, Mr Bendzius’ then general practitioner prepared a mental healthcare plan. He or she diagnosed anxiety and noted: Mr Bendzius had suffered from anxiety for twenty years; it had worsened in the last few years; he took Valium for relaxation and to go to sleep; he was afraid to go onto a boat or plane; afraid of heights, even heights of a few metres; and otherwise, his mood was stable and his relationship fine.
6 On 24 January 2013, Mr Bendzius started employment as a customer services associate at Masters Home Improvement Australia Pty Ltd (“the employer”) in its Dandenong store. Owing to his background, he served mainly tradesmen, and stocked shelves. He liked his job.
7 In June 2015, Mr Bendzius was warned by his employer about swearing at work. He was given a first and final warning and directed to re-read the employer’s code of conduct. He was advised any further breach may result in the termination of his employment.
Incident
8 On Monday, 10 August 2015 in the early afternoon, Mr Bendzius was behind a counter at the South Dandenong store. He heard a man yelling at the top of his voice and saw him lifting his tee shirt up. The man was then about thirty metres from Mr Bendzius. He was in his 20s. The man approached Mr Bendzius’ counter. As he did so, he started to shake and throw his arms about. He came to about a metre from Mr Bendzius, looked into his eyes, raised his shirt to his neck, bent forward and said: “Do you want to fucking buy some drugs”? At the time, there were a lot of tools lying on the counter. The man was about six feet tall while Mr Bendzius is much smaller, at five foot seven inches. To Mr Bendzius, the man looked wild, with a strange look in his eyes. He stood at the counter yelling and swearing at Mr Bendzius until the man’s friend came up and told him to go outside, which he did. This encounter made Mr Bendzius “feel shaky inside”. He continued working but was unsettled. He was worried where the man had gone and whether he would return. He kept imagining the man in front of him. He believes the man was drug crazed.
9 Ms Christie O’Neill, a former employee of the employer, was working at the store on the day. After receiving a call at about 2.00pm, she went to the trade section of the store. She saw a man in his 20s “showing his stomach” by lifting his shirt up to his armpits. He was talking loudly but she could not understand what he was saying. She spoke to the man, explaining she had received a complaint and he would need to leave the store. He apologised, denying the content of the complaint and saying that he would calm down. This man had a large scar on the top of his head. Another man came up to this man and told him to go and have a cigarette. She left, only to return shortly afterwards to find the two men. But they were not causing trouble. Later again, she received a call about these men seeking string to tie timber to a trolley and crossing the car park with the trolley.
10 Although Ms O’Neill did not witness anything involving Mr Bendzius, the man she encountered was the man who confronted Mr Bendzius. The man’s behaviour caused disquiet among the staff. The woman operating the register in the trade section left it to avoid the man. Ms O’Neill went twice in answer to calls from members of the staff and she received a final call explaining his departure from the store.
11 Two days later, Mr Bendzius saw his general practitioner, Dr Barry Hill, who recorded a different version of the incident:[2]
“… he was confronted by an (it seems from the description) intoxicated client, [who] chased him around a pallet, threatened him and others, was verbally aggressive but made no actual contact with Peter and was ‘bloody wild, … couldn’t control himself, … off his tree, probably on ice or something’.”
[2]Report dated 29 January 2016 at page 1
12 In cross-examination, Mr Bendzius said this version was not entirely correct and he did not recall saying some of the things to Dr Hill which the latter recorded: being chased around the pallet; being threatened with bodily harm.
13 There are variations in the recording of the incident when Mr Bendzius was seen by other practitioners.
14 During the hearing before me, the defendant made a qualified admission about the occurrence of the incident involving Mr Bendzius. The admission adds nothing and the evidence of Ms O’Neill little.
15 Mr Phillips, neuropsychologist, noted a tendency of Mr Bendzius to exaggerate his symptoms but concluded this was insufficient to invalidate his responses.[3]
[3]Report dated 16 April 2019 at page 14
16 Notwithstanding Mr Phillips’ observation, I was impressed by Mr Bendzius as a witness. In cross-examination, he tried to give truthful answers. Sometimes, he struggled to express himself clearly but, at no stage, did I think he was being untruthful or exaggerating. His answers about his intention to retire were candid.
17 In relation to the incident, what Dr Hill recorded is somewhat anomalous. In part, it reads like a summary of what Mr Bendzius told him with elements of a commentary. I did not lose confidence in the accuracy of Mr Bendzius’ account owing to Dr Hill’s record. I am satisfied the incident happened as I have described it.
18 That night, Mr Bendzius found it hard to sleep, remaining nervous. By Wednesday, he was physically shaking, reliving the incident and crying a lot. Through his employer, he contacted and then saw a counsellor several times.
19 Also, on 12 August 2015, Mr Bendzius attended Dr Hill. He saw him a further six times until 28 January 2016. He referred him to counselling with Dr Gloria Douglas, psychologist. She saw him for the first time on 14 October 2015. Using the Depression, Anxiety and Stress scale (DASS), she found extremely severe levels of depression, anxiety and stress.
20 Mr Bendzius did not return to work until Friday, 14 August 2015. He felt very strange. A little after his return, he discovered his roster had been changed to later finishing shifts. To him, and in view of the incident, these later finishing hours presented an increased danger to him in confronting suspected thieves. He asked for the change be reconsidered but the answer was “no”. He gave a week’s notice but was told to finish that day, 7 September 2015. He has not returned to work since. At the time of ceasing, he worked 15 hours each week over three days. He was paid $21.53 each hour. He also received a part pension from his superannuation fund.
21 Ms Douglas counselled Mr Bendzius in ten sessions, with the last on 24 March 2016. She did so under a mental health care plan. She did not see him again until 3 May 2017 and then only once.
22 In July 2017, Dr Hill referred Mr Bendzius to a psychiatrist, Dr Dulip Dharmage, who has continued to treat him.
Treating practitioners
23 In August 2005, Ms Alemka Atkins, psychologist, started treating Mr Bendzius. She described his conditions as: anxiety; depression; pain management; anger; adjustment to changed health and lifestyle circumstances. This information came from a single-sheet sent to the defendant.
24 Also, in August 2005, a general practitioner, E.C Lee, examined Mr Bendzius in the context of an injury to his left shoulder and arm in 2003. Apparently, the injury had been poorly treated with pain, limitation of use and psychological problems.
25 In September 2011, Dr Geoffrey Hogan, a psychiatrist, examined Mr Bendzius at the request of his then general practitioner. Dr Hogan diagnosed a chronic pain problem with the recurrence of Major Depression. He noted a forthcoming pain management programme.
26 Dr Hill has been Mr Bendzius’ general practitioner since August 2012. Before the incident, Dr Hill did not observe depressive or anxiety symptoms with Mr Bendzius at any time. He knew Mr Bendzius took Valium before the incident for “sleep initiation to overcome pain”. He noted an increase in the use of Valium after the incident as a means of coping with anxiety.
27 During March 2015, Dr Hill referred Mr Bendzius to a rheumatologist, Associate Professor Lynden Roberts. In May and June 2015, Professor Roberts noted the existence of peripheral neuropathy, low back pain, gout, Type 2 diabetes and coronary artery disease, and the five kinds of medicine, including Valium, prescribed to him. He diagnosed fibromyalgia. In his June report, he noted:
“He is worried about how he is going to manage at work for the long term but he is struggling along.”
28 Dr Diane Apostolopoulos is a rheumatologist. She examined Mr Bendzius at Dr Hill’s request on 7 August 2015. She focussed on his right foot, found no structural abnormalities and concluded he had a Regional Pain Syndrome of that foot. She noted he was taking eleven different medicines including Valium.
29 As I said earlier, Dr Hill referred Mr Bendzius to Dr Gloria Douglas. She saw him ten times until March 2016. By the last session, he had improved somewhat, was more positive about life, playing bowls and golf and enjoying gardening. Later, Dr Hill encouraged him to see her again and he did so once in May 2017. Nothing was achieved at that visit.
30 On four occasions, including in May 2017, Ms Douglas assessed Mr Bendzius using the Depression, Anxiety and Stress scale (DASS). In relation to depression, anxiety and stress, Mr Bendzius was consistently in the extremely severe range for each. If the scale is accurate, then treatment had little or no effect on the severity of his symptoms. Using the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), she diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and maintained this diagnosis following their last, brief meeting.
31 Between 2016 and 2017, Dr Hill referred Mr Bendzius to other specialists and clinics: Dr Stanley, haematologist, over suspected cancer; to The Alfred hospital Sleep Clinic; to the Monash Health Pain Management Clinic, and to Professor Ostor, rheumatologist. Apart from this information, I know nothing else about these attendances.
32 In 2017, another general practitioner in Dr Hill’s practice referred Mr Bendzius to a psychiatrist, Dr Dulip Dharmage, who first saw him on 31 July 2017. By 18 March 2019, Dr Dharmage had seen Mr Bendzius on another thirteen occasions. These occasions were reasonably regular, being either monthly or every second month.
33 Dr Dharmage took a reasonably accurate account of the incident. At his first examination, Dr Dharmage noted these symptoms: preoccupied with memories of the incident; experiencing delusions, and episodes of flashbacks with, at times, hearing the voice of the person.
34 On 18 March 2019, Dr Dharmage again noted Mr Bendzius’ mental state: depressed and anxious; being traumatised by re-experiencing symptoms including intrusive memories, nightmares and flashbacks; the occasional hearing of the voice of the person in the incident; avoidance behaviours; hyper-arousal symptoms; intermittently low, anxious and irritable; poor self-worth; poor concentration; impaired sleep and occasional panic attacks.
35 In his second affidavit, Mr Bendzius described in greater detail the symptoms noted by Dr Dharmage:
(a) bad memories, nightmares and flashbacks. The nightmares wake him up and he feels breathless. In his mind, he still sees the man who confronted him regularly, describes it figuratively as “the man having built a house in my head, coming and going when he pleases”. He sees him about three times a week and hears his voice;
(b) on edge all the time;
(c) his heart often races; he has panic attacks, and is unable to relax;
(d) irritable, easily upset and sometimes tearful;
(e) mostly feels low and useless with a lack of purpose;
(f) outside the home, feels quite anxious. He worries about the man in the incident or similar incidents occurring. Although he shops, he stays for as shorter time as possible in a shop. He is extremely cautious about his safety when he is away from his home;
(g) lost confidence, particularly among males, especially young males for he fears attack;
(h) appetite is variable but is not “very good”. He does not enjoy eating as much as before the incident;
(i) memory is poor and has trouble concentrating and “thinking straight”;
(j) experiences a tight chest regularly, finds it difficult to breath and gets “hot and cold”;
(k) avoids conflict and confrontation because he cannot cope.
36 Initially, Dr Dharmage prescribed Lexapro, 10 milligrams daily. Owing to its side effects, he prescribed another anti-depressant, Sertraline, starting at 25 milligrams daily, increasing to 50 milligrams, then 100 and finally 150. Despite the Sertraline, Mr Bendzius continues to experience nightmares, flashbacks, sleeping difficulties and very poor concentration. Although his mood has improved, it still fluctuates between normal on the one hand and depressed, anxious or irritable on the other.
37 From the outset, Dr Dharmage diagnosed a Post-Traumatic Stress Disorder with depressive and anxiety symptoms and noted Mr Bendzius was not in treatment for the disorder or the depressive and anxiety symptoms when he first examined him. In March 2019, he reaffirmed his original diagnosis and added a Panic Disorder. Plainly, he links the Stress Disorder to the incident and I assume the Panic Disorder is a function of the anxiety symptoms associated with the Stress Disorder. Overall, he described the symptoms as significant. For two reasons he saw the disorder as chronic: delay in receiving appropriate treatment, and the mild improvement despite treatment. Reading between the lines, he saw the mental injury as almost entirely caused by the incident and not an aggravation, et cetera of a pre-existing injury. He saw an incapacity for any work.
38 From Dr Dharmage’s perspective, the failure to treat the disorder may or may have consequences:[4]
“About 30% of patients with Post Traumatic Stress Disorder who haven’t received treatment do recover within a year. However, 40% of these patients continue to suffer from mild symptoms, 20% continue to suffer from moderate symptoms and 10% continue to suffer from severe symptoms.
Given the limitations in pharmacological treatment options with Peter, in my opinion Peter belongs to the latter group of people who will have a chronic course of Post Traumatic Stress Disorder. Therefore, although he may show some progress in his symptoms, it is unlikely that Peter will experience a satisfactory improvement [in his] Post Traumatic Stress Disorder in the future.”
[4]Report dated 18 March 2019
39 By “latter group”, I understand Dr Dharmage was referring to the last group of 10 per cent.
Medico-legal
40 Dr John Gill is a psychiatrist. In December 2005, an authorised agent asked him to examine Mr Bendzius for the purposes of a psychiatric impairment assessment relating to the 2003 fall. He diagnosed a Post-Traumatic Stress Disorder with Depression and provided an impairment assessment.
41 Also, in December 2005, Dr Leon Fail, psychiatrist, examined Mr Bendzius at the request of the same agent. He diagnosed a mild Adjustment Disorder, which was chronic. It did not incapacitate him for work. He considered appropriate the psychological counselling he was receiving.
42 Dr Nitin Dharwadkar is a psychiatrist, who examined Mr Bendzius in December 2015. He took a reasonable history of the incident. He noted symptoms since the incident: middle insomnia with dreams; lowered appetite and loss of five kilograms; lowered energy and motivation; anxious, irritable mood; memories of the incident; difficulties concentrating about twice weekly; periodic nausea; palpitations, and shaking in the hands.
43 Dr Dharwadkar diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and a chronic pain condition. He raised the possibility of a pre-existing chronic anxiety condition. He noted factors which predisposed Mr Bendzius or made him vulnerable to the development of the Adjustment Disorder following the incident: challenging childhood history of emotional abuse and deprivation, and the chronic pain condition. He saw a capacity for work, starting at twelve hours per week of modified or alternative duties in a different workplace. He recommended a trial of a serotonin re-uptake inhibitor (SSRI) and the ultimate cessation of Valium.
44 In June 2016, Dr Brendan Spence, a psychiatrist, examined Mr Bendzius at some length.[5] Dr Spence had limited access to other reports. Nevertheless, he prepared a very detailed report. He considered Mr Bendzius was a poor historian. He suspected his lack of recollection was due to his drinking. He took a history of the incident after extensive questioning. Nevertheless, it varies with Mr Bendzius’ evidence. He noted its variance with the history taken by Dr Hill. This left Dr Spence puzzled. More significantly, the version he records is relatively low-keyed: there is no mention of raising his tee shirt up; no mention of coming close to Mr Bendzius; no mention of what he said to him, and no mention of the tools lying on the counter. Dr Spence saw Mr Bendzius’ separation from his partner, Julie, as unrelated to the incident. He felt Mr Bendzius otherwise functioned well.
[5]Report dated 30 June 2016
45 Dr Spence did not consider Mr Bendzius warranted a diagnosis separate from his pre-existing problems and certainly not a diagnosis of Post-Traumatic Stress Disorder. These pre-existing problems were longstanding, resolving into a Substance-Induced Anxiety Disorder (alcohol) and a Somatic Symptom Disorder (pain). The incident caused some “trauma-based re-experiencing phenomena” or symptoms after the incident but these reduced over many months and settled significantly in the months following. Dr Spence considered these phenomena or symptoms impacted his functioning. He foresaw a full resolution of these symptoms. He did not consider him incapacitated for work, either in his pre-injury work with his employer or any other limitation upon his capacity.
46 Dr Matthew Tagkalidis is a psychiatrist who examined Mr Bendzius in December 2016.[6] He took a reasonably accurate history of the incident. Using DSM-IV, he diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood with features of traumatisation. He did not diagnose a Post-Traumatic Stress Disorder because of the lack of intensity and severity in symptom clusters relating to re-experiencing, avoidance and arousal.
[6]Report dated 20 December 2016
47 Also, in December 2016, Dr Linda Byrne, a neuropsychologist, examined Mr Bendzius and diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She also found other disorders largely unrelated to his employment: a mild Neurocognitive Disorder; a Substance Abuse Disorder, and a Somatic Symptom Disorder. She felt he was unfit for his pre-injury employment due to a variety of factors, some work related.
48 In April 2019, Dr Alan Gallogly, a psychiatrist, examined Mr Bendzius. He took a history of the incident which is decidedly similar to the version given by Mr Bendzius in his first affidavit.
49 Dr Gallogly described his symptoms in great detail: on edge always; experiences flashbacks; cannot relax properly; shaking always; heart often races; feels depressed and sorry for himself; hard to go to sleep; hard to get up in the morning and is not motivated; feeling tired all the time; anxious in public and in stores like Bunnings; cannot focus; has poor memory; varied appetite and lost weight; at times, his chest is tight and he has difficulty breathing; lost confidence, and has difficulty coping with confrontation and conflict.
50 Dr Gallogly diagnosed a Post- Traumatic Stress Disorder, which is both chronic and treatment resistant. He drew a causal link between the incident and the disorder. Psychiatrically, he considered Mr Bendzius incapacitated for work entirely. After describing Dr Dharmage as an excellent psychiatrist, he thought the pharmacological options were limited.
51 Dr Gregor Schutz is a psychiatrist. He examined Mr Bendzius twice, in 2016 and 2019. He took a reasonably accurate history of the incident. In 2016, using DSM-5, he diagnosed a moderate, chronic Adjustment Disorder Order with Anxious and Depressed Mood and some features of traumatisation, caused by the incident. There was insufficient evidence of a Post-Traumatic Stress Disorder, a major mood or psychotic disorder or personality disorder or a substance use disorder. Psychiatrically, he saw Mr Bendzius as unfit to return to any employment. At best, his prognosis was moderate.
52 In 2019, Dr Schutz received more medical and other material, including the report of Dr Dharmage. Judging from his summary of this material, he examined it with care. He retraced much of the ground covered in 2016, maintaining his earlier diagnosis and noting some improvement since 2016 but with no remission of the symptoms. Again, he felt there was insufficient evidence of Post-Traumatic Stress Disorder, a major mood, psychotic disorder, personality disorder or substance use disorder.
53 Dr Schutz’s mental state examination was largely unremarkable; however, piecing together parts of his report, he found anxiety as a result of the incident, which encompassed panic attacks. He was told, and apparently accepted, complaints of lowered mood, loss of energy and drive, some negative ruminations, occasional suicidal thinking and loss of enjoyment, impairment in functioning and distress. He noted a mild neurocognitive disorder, probably due to various factors. Psychiatrically, he is incapacitated for work. This incapacity was likely to be permanent, with or without treatment. His symptoms are likely to persist indefinitely with a mild to moderate impact on his functioning and quality of life.
54 Mr Dougal Phillips is a neuropsychologist. He examined Mr Bendzius in 2017 and 2019. He obtained an accurate history of the incident. On both occasions, his testing took many hours with four different, standardised tests including the Post-Traumatic Stress Disorder Checklist (Civilian version). The DASS-21 test showed extremely severe levels of anxiety, mild levels of stress and no clinically significant depressive symptoms.
55 Using DSM-5, he diagnosed a Post-Traumatic Stress Disorder; a language disorder; a mild neurocognitive disorder, and somatic symptom disorder. In relation to the stress disorder, Mr Phillips observed:[7]
“With respect to post-traumatic stress disorder, I note that it may come across as unusual to some that Mr Bendzius would experience such a negative and long-lasting psychological reaction to an interaction – namely, being verbally accosted by an aggressive individual – that could feasibly occur to many of us walking down a busy street in Melbourne. The assessment suggested, however, that Mr Bendzius might be more vulnerable than others to the negative impact of this kind of experience.
For instance, the assessment suggested Mr Bendzius has perfectionistic traits and a rigid and inflexible personal code. This suggested he might experience violations of appropriate social norms more adversely than others. Further, his personal history of cumulative traumatic experiences suggested that he may lack of resilience in the face of adversity and be susceptible to post-traumatic symptoms. Finally, his perception that HR at the time dismissed his complaint and, later, that his manager declined to change his hours appeared to exacerbate his psychological symptoms further.”
[7]Plaintiff’s Court Book at page 108
56 Mr Phillips attributed the stress disorder to the incident and saw it lasting for the foreseeable future due to a poor prognosis. The disorder incapacitates him for work, again for the foreseeable future.
57 Dr Dush Shan is a consultant psychiatrist. He examined Mr Bendzius twice, in August 2017 and March 2019. He described Mr Bendzius’ recall of the incident as tending towards vagueness. Certainly, he records a truncated version. Later in his report, he noted:
“The Affidavits and statements from persons at the workplace do indicate that all that occurred at the workplace consisted of the patient being startled and taken aback by the agitated behaviour of a person. Furthermore, it appears that the interaction did not last for more than a few minutes and occurred in the vicinity of other persons including the man’s carer.”
58 At his examination in March 2019, Dr Shan saw evidence of anxiety and depressed mood. Mr Bendzius spoke of flashbacks and hypervigilance. There was avoidance without the identification of any particular item except his former workplace. A belief that all his problems arose from the incident. There were occasional mild problems of concentration and memory lapse which were not significant.
59 Dr Shan diagnosed an Anxiety Disorder Not Otherwise Specified but noted Mr Bendzius suffered from the same disorder before the incident. All the incident did was cause a brief aggravation of the disorder which lasted about six months and has now been overtaken by other causes. There was now no employment-related psychiatric condition causing an incapacity for work.
Present situation
60 Until January 2016, Mr Bendzius has been in a relationship with Julie for about thirty years. They separated in January 2016. They continue to live in the same house, living separately within it. They cannot afford to set up in different residences. The effect of the incident upon Mr Bendzius affected their relationship and caused their separation. It led to many arguments or “fights”, more than before the incident. Julie lost patience with him for he did not want to go out or “do anything”, even about the home. She thought him lazy and said so and he was easily upset; however, before the incident, their relationship was not harmonious and had not been so for more than ten years. During re-examination, Mr Bendzius sought to explain the difference since the incident:[8]
[8]Transcript at page 48
Q: “Has there been any change in the way you socialise with your ex-partner?---
A:Yes.
Q:Can you describe to His Honour what the difference is?---
A:Difference is – is I don’t – we don’t sleep together, as you know, and separate rooms. And we try to get on but we still fight like because of financial difficulties. And we try to be friends because we live under the same roof. Try to do the right thing – shopping and stuff like that. It’s not the best, but you’ve got to make amends, we live under the same roof. I just couldn’t afford it. It could be better, I wish, but it’s not.”
61 Although Mr Bendzius still plays lawn bowls with the Keysborough Bowling Club, he does not bowl as well or as often as he did before the incident: he has been dropped from the seconds to the thirds, and previously bowled on Tuesdays and Saturdays and now on Saturday only. He is not as joyful or as happy as before. He goes out because he believes it is good for him.
62 Mr Bendzius still plays golf, once a month. As with bowls, he does not play as well or enjoy it as much.
63 Although he has retained his friends, how he relates to them has changed:[9]
“I’m just not as friendly. I used – I used to join in more, and stuff like that. I try to, but I just sort of – I feel sort of out. I’m not sort of in with them, but I am, but I just – I don’t feel right.”
[9]Transcript at page 47
64 Mr Bendzius still drives a car. Some of the medical practitioners noted he drove to their appointments. He is afraid of using public transport. He does household chores and gardening.
65 Mr Bendzius drinks six or seven light beers daily. This is a marked reduction from the past. This must be seen as a beneficial consequence.
Legal considerations
66 I will discuss the loss of earning capacity issue below.
67 As I said at the start, the claimed “serious injury” is “permanent severe mental or permanent severe behavioural disturbance or disorder”.[10] The pain and suffering consequence or the loss of earning capacity consequence of this serious injury requires a comparison with other cases and must be fairly described as being more than serious to the extent of being severe.[11] Bearing in mind, in this context, “serious” is fairly described as being more than significant or marked, and being at least very considerable. It is a very stringent test.
[10]Section 325(1)
[11]Section 325(2)(d)
Discussion
68 In summary, the picture becomes reasonably clear. Mr Bendzius had physical ailments leading up to the incident. But he was neither depressed nor anxious before it. The incident affected him more than would be expected but this was due to his vulnerability as noted by Mr Phillips. Until Dr Dharmage came on the scene he was not treated for a Post-Traumatic Stress Disorder. Unfortunately, this delay has eliminated his chance of a satisfactory recovery.
69 The defendant invited me not to describe the mental injury as a Post-Traumatic Stress Disorder, submitting it is at variance with the diagnoses of other practitioners.
70 Since the incident, Dr Dharmage is the only psychiatrist to treat Mr Bendzius. He has seen him on thirteen occasions since 2017. His treatment has included prescribing medicines, starting with Lexapro, moved quickly from it to Sertraline, from a low dose, moving to the current dose of 150 milligrams daily. Changing medicines and increasing doses is typical of treatment as the results of each step are assessed. His position is far superior to those who are seen once, or even twice, separated by two or more years.
71 As to the various experts, I know little of any of them. Dr Dharmage describes his formal qualifications and leaves it at that.[12] He does not speak about his occupational experience; however, in what is a piece of unsolicited praise, Dr Gallogly described him as an excellent psychiatrist.[13] Since I did not hear from any practitioner and for most of the rest I am unacquainted with their written work, this comment reinforces my view of the superior position occupied by Dr Dharmage.
[12]Report dated 18 March 2019 at page 1
[13]Report dated 17 April 2019 at page 11
72 As I said earlier, Mr Bendzius has been injured in the past. He also suffered from other complaints. Two of the injuries left him with recognised psychiatric disorders. These are borne out in the reports of Dr Gill, Dr Fail and Dr Lee in 2005, and Dr Hogan in 2011.
73 In December 2003, Mr Bendzius injured his left arm seriously. He developed depression and started treatment for it in 2005. He was treated by a small number of visits to a psychologist and a short-term trial of antidepressants. He returned to work in 2008.
74 In June 2010, his left foot became painful. The cause was uncertain despite widespread investigations. The persistent pain led to the recurrence of Major Depression. It appears he attended a pain management programme. By March 2015, his feet remained painful. He used various medicines to cope with the pain. Professor Roberts saw peripheral neuropathy with central sensitisation as the explanation for his feet, and central sensitisation for his lower back. Ms Apostolopoulos thought he suffered from a Regional Pain Syndrome in his right foot.
75 In August 2005, Ms Atkins noted anxiety as one of four psychological conditions she was treating. Dr Lee referred Mr Bendzius to Ms Atkins. He noted stress, frustration and anxiety as conditions requiring counselling. Dr Gill took a history of a phobic anxiety over heights preceding the December 2003 injury. Of his impairment assessment, he attributed 5 per cent out of 20 per cent as a combination of pre-existing phobic anxiety and the development of his pre-existing anxiety and depressive symptoms by the 2003 injury. The March 2010 mental healthcare plan says Mr Bendzius suffered from anxiety for twenty years, and there is a long history of his taking Valium.
76 In June 2016, Dr Spence noted significant and ongoing psychiatric and substance misuse history which predated the incident.
77 Under the heading “Relevant past psychiatric history”, Dr Dharmage spoke only of psychological consequences of the injury to Mr Bendzius’ left arm in 2005. He accepted Mr Bendzius’ statement of recovering from the depression caused.
78 Against this, Dr Hill saw no evidence of depressive or anxiety symptoms in the years of treating him since August 2012. As far as he is aware, there were no earlier significant psychological illnesses. Until the incident, he attributed the use of Valium to overcome pain and enable Mr Bendzius to go to sleep.
79 If the general practitioner does not discover depressive or anxiety symptoms, then one should safely conclude none was present in the period between August 2012 and immediately prior to the incident. Such symptoms which existed before had gone. Out of an abundance of caution, the plaintiff submitted that any pre-existing symptoms of anxiety were extremely mild. This overstates the position, for I do not accept the existence of any such symptoms.
80 Speaking of the psychiatrists, Dr Dharmage’s diagnosis is supported by Dr Gallogly, who examined Mr Bendzius recently. It is not supported by Doctors Dharwadkar, Spence, Tagkalidis or Schutz.
81 Where severity of symptoms figures as a factor, Dr Dharmage’s assessment of them is supported to an extent by the tests of Ms Douglas in 2016 and 2017 and one of the tests administered by Mr Phillips.
82 Since the initiating event is important in diagnosing the stress condition, a practitioner needs to work from an accurate history of it. In the cases of Doctors Spence and Shan, neither worked from a sound factual basis of the incident. This is not their fault but it does undermine the validity of their opinions.
83 Dr Shan is the only psychiatrist who examined Mr Bendzius for the defendant in 2019. He held an inaccurate view of what happened during the incident. Apparently, he was too much influenced by other pieces of information. He did not have a proper understanding of the incident and therefore appreciate its likely effect upon Mr Bendzius. Both Dr Shah and Dr Spence saw him as significantly impaired psychologically before the incident. As I have said, this is also incorrect. To use an expression I have used in the past, neither doctor had a “fair climate” in which to express their central opinions.
84 During closing submissions, the parties raised several points.
85 Dr Dharmage examined Mr Bendzius for the first time in 2017, almost two years after the incident. Despite a submission, there is no evidence from which I could infer the delay affects the validity of his diagnosis.
86 The defendant pointed to the need to find avoidance symptoms, et cetera, if making a diagnosis of Post-Traumatic Stress Disorder, and submitting some of the practitioners did not find them. Plainly, Dr Dharmage found avoidance behaviours:[14]
“In addition, due to the exacerbations of distress Peter experiences when exposed to situations that remind him of his traumatic experience and his attempts to avoid this by avoidance behaviours.”
[14]Report dated 18 March 2019 at page 7
87 When one is dealing with consequences of an injury, normally, I would agree that the symptoms, their severity and longevity are important, not the label describing those symptoms; however, as Dr Dharmage points out, certain kinds of Post-Traumatic Stress Disorder can be difficult to treat. By knowing the condition, practitioners can give prognoses with greater confidence. These well-known psychiatric illnesses or disorders are well studied.
88 The plaintiff submitted the DSM-5 criteria do not amount to a checklist, that is, if a criterion is missing, then the diagnosis can still be made. What is needed is clinical judgment for two different labels may be applied to the same constellation of symptoms. The DSM-5 is an attempt to bring consistency to diagnosing disorders. It is widely accepted. Dr Dharmage used it when diagnosing and treating a Post-Traumatic Stress Disorder. Helpfully, Dr Gallogly sets out the criteria for a Post-Traumatic Stress Disorder under DSM‑5. Comparing them with Dr Dharmage’s report, it seems there is ample reason for him to diagnose the disorder.
89 In any event, it is dangerous for me to examine the reports of specialists who diagnose one thing or another, compare their findings to the criteria set out in DSM-5 or, even, DSM-4, and then decide whether to accept or not.
90 There have been various explanations of the continued pain experienced by Mr Bendzius. Professor Roberts saw the feet as peripheral neuropathy with central sensitisation and the lower back best explained by central sensitisation. Others have offered different explanations: somatic pain disorder; or chronic pain condition.[15] Again, the inability of Dr Hill to detect a psychological underpinning in Mr Bendzius’ presentation to him over the years, weakens the psychological explanation. The ongoing pain is explained in physical terms.
[15]I assume this expression is another way of describing a somatic pain disorder
91 I have already set out the prognosis of Dr Dharmage: poor. The disorder will continue to affect Mr Bendzius. He may show some progress but it will not improve sufficiently to be considered recovered. Dr Gallogly was guarded. Dr Schutz saw persistence of symptoms into the foreseeable future. Mr Phillips saw the prognosis as poor. For Dr Shan, prognosis did not arise for the psychological effects of the incident dissipated about six months afterwards. In 2016, Dr Spence was confident of a full resolution of the symptoms experienced by the incident.
92 It is incorrect to submit the results of the neuropsychological testing is a bit of a “red herring” in that Mr Bendzius has functioned before the incident even though they existed then. Their existence influences the prognosis of Dr Gallogly.
93 In view of the above, it is easy to accept the pessimistic view of Dr Dharmage.
94 This is not a case where the effect of the disorders translates into profound consequences for day-to-day living except in one area. Julie has been his partner for many years. Their relationship had been uneasy before the incident and worsened afterwards. They ceased to cohabit even though for financial reasons they live under the same roof. This is very significant for Mr Bendzius. He is now sixty-seen. His thirty-year relationship has broken down. To an extent, he is isolated. In certain circumstances, he is anxious outside of his home. He has no contact with his thirty-nine-year old daughter, his only child. He is fortunate in having some friends, and still plays bowls and golf. Both sports are now played and enjoyed less.
95 It is now almost four years since the incident and Mr Bendzius continues to suffer very significant symptoms. His prognosis is very poor and he will continue to suffer these symptoms permanently with the hope of a little abatement at best. Apart from the breakdown of his relationship, he has continued to do various things, some at a lesser level, and others with less enjoyment. Although the test of “severe” in this context is very stringent, Mr Bendzius has satisfied it. I will grant him leave in relation to the pain and suffering consequence of his psychiatric disorder.
Loss of earning capacity
96 Mr Bendzius seeks leave to bring a proceeding for loss of earning capacity. As at the date of the hearing of this application, the defendant submits he cannot prove he was capable of earning any gross income in suitable employment because he would have retired before now. The defendant relied on the judgment of Judge Saccardo in Cuturic v Spotless Facility Services Pty Ltd.[16] The plaintiff did not submit I should not follow it.
[16][2018] VCC 889
97 In that case, Ms Cuturic was injured and stopped work. She was then sixty-seven. Save for the injury, she would have worked until seventy. His Honour asked whether she would have continued to work after reaching seventy. This she failed to establish. At the time of the hearing, she was seventy.
98 After examining s325(2)(e) of the Act, his Honour stated several propositions, including:
(a) a plaintiff must prove suffering a loss of earning capacity which will, after the date of the hearing of the application, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(b) the date at which the assessment of the loss of earning capacity productive of the required loss is the date of the hearing of the application.
99 His Honour concluded he was not satisfied Ms Cuturic’s incapacity for work operated at the date of the hearing or into the future so as to be productive of any financial loss to her.[17] She could not prove she would be earning any income at the time of the hearing or into the future.
[17]Paragraph 33
100 In about May 2015, Mr Bendzius’ manager, a man called Elliot, left the store. While Mr Bendzius liked Elliot, he did not like his replacement.
101 Also, in about May 2015, Mr Bendzius considered stopping work and applying for a disability support pension because of his aches and pains. His application was unsuccessful and, in June 2015, he decided to continue working.
102 Again, in June 2015, he was warned over swearing, given a first and final “warning”, directed to read the employer’s code of conduct and told any further breach may result in dismissal.
103 Following the incident and after he returned to work, the employer sought to change his roster. When unsuccessful in having the decision reversed, Mr Bendzius resigned.
104 During cross-examination, these passages appear:[18]
[18]Transcript at page 42
Q: “But you informed the doctor that you changed your mind and subsequently decided to stay until you planned a retirement in April 2017 when you turned 65. Sorry, have you got that? It’s p.9?---
A:Yes. I maybe could have worked on.
Q: You might have?---
A:Yes.
Q: But as it says here, you planned to retire in April 2017, because that’s your birthday, isn’t it, April?---
A:Correct.
Q: When you turn 65, as you’ve told us?---
A:Yes.”
105 In re-examination, he said:[19]
[19]Transcript at pages 48-49
Q: You said in response to a question from Mr Elliott that you might have worked past 65?---
A:Yes.
…
Q: What sort of things would’ve influenced your thinking about whether or not you would’ve worked past the age of 65?---
A:Well, if I would’ve stayed on the same hours as I did in the first place, I probably would’ve been still there. And if it was still open.”
106 In his affidavits, Mr Bendzius does not talk about his work intentions before the incident. He devotes three paragraphs of his second affidavit to the issue of earning capacity.[20] The nearest statement about intention appears in paragraph 10, where he says: “I loved my job and feel like a different person without it”; however, he did speak about his intentions to several practitioners.
[20]Paragraphs 9, 10 and 11 of the affidavit sworn 1 May 2019
107 In June 2016, Dr Spence recorded:[21]
“Mr Bendzius said that after his manager, Elliot, left he considered leaving employment and said at the time ‘I said to some people I might look for another job’. Mr Bendzius informed me that he changed his mind and subsequently decided to stay until his planned retirement in April 2017 when he turns 65.”
[21]Report dated 30 June 2016 at page 3
108 In August 2016, Dr Schutz recorded:[22]
“In terms of his views of his work capacity, he thinks he would have wanted to work if this had not happened. He probably would have retired at the age of 65. … . ”
[22]Report dated 29 August 2016 at page 4
109 In March 2019, Mr Phillips recorded this part of his conversation with Mr Bendzius:[23]
[23]Report dated 16 April 2019 at page 6
“Examiner: Could you go back to work now?
Patient: Now? No.
Examiner: Why not?
Patient: Haven’t got the feeling for it. Lost me drive.
Examiner: You’re not motivated to go back to work?
Patient: That’s right. Plus I’m 66. I class myself as retired.”
110 At the outset, I am satisfied Mr Bendzius is incapacitated from working at all due to the psychological effects of his injury. There is abundant evidence to support the conclusion, particularly coming from Dr Dharmage.[24]
[24]For completeness, the parties agreed the relevant income figure is $17,809 and 60 per cent of that figure is $10,685
111 His failure to speak of the issue in his affidavits is ambiguous. It may be due to it not being an issue at the stage when they were prepared.
112 His oral evidence is very weak. He might have worked past sixty-five if his roster had not changed and the store remained open. The possibility of working past sixty-five contrasts with what he told two practitioners in 2016. Dr Spence records being told of a planned retirement at sixty-five while Dr Schutz records the probability of retirement at sixty-five.
113 This must be seen in the context of what happened before. The critical event was the loss of Elliot and his replacement by someone Mr Bendzius did not like. The swearing incident left a bad taste in Mr Bendzius’ mouth. He did not feel he was properly treated. Certainly, the content of his warning seems an over-reaction.
114 The roster was changed soon after the incident. This was the final straw for Mr Bendzius and he resigned; however, whether he would have resigned if the incident had not occurred is uncertain. The incident affected him. The change of shifts meant he was more exposed to the uncertain behaviours of customers.
115 To find as facts Mr Bendzius would have been in paid employment at the date of the hearing and continue permanently, I must be reasonably satisfied of their existence. As I said, his oral evidence was weak and was further weakened by statements made to three practitioners. I am not reasonably satisfied of their existence.
116 In relation to the loss of earning capacity part of his application, I will not grant leave.
- - -
4
1
0