Bogdanovska v Allsmanti Pty Ltd
[2010] VSCA 126
•4 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DRAGANKA BOGDANOSKA | S APCI 2009 3725 |
| Appellant | |
| v | |
| ALLSMANTI PTY LTD and VICTORIAN WORKCOVER AUTHORITY | First Respondent |
| Second Respondent |
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| JUDGES | REDLICH and MANDIE JJA and HANSEN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 May 2010 |
| DATE OF JUDGMENT | 4 June 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 126 |
| JUDGMENT APPEALED FROM | [2009] VCC 0108 (Judge O’Neill) |
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ACCIDENT COMPENSATION – Serious injury – Whether appellant suffered permanent severe mental or permanent severe behavioural disturbance or disorder in relation to the loss of earning capacity consequences thereof – ‘severe’ – 'permanent' – Accident Compensation Act 1985 (Vic) ss 134AB(16)(b), (19), (37)(c), (38)(b), (d) and (e).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Mr R P Gorton SC with Mr I D McDonald | John Dellios & Associates |
| For the Respondents | Mr J H Kennan SC with Mr S A O’Meara | Wisewould Mahony |
REDLICH JA:
The appellant sustained work related physical injuries which in turn contributed to the onset of depression and a pain or adjustment disorder. By the time of trial it was said to be her psychological state that accounted primarily for such pain as she experienced. The appellant confined her application for leave to proceed to loss of earning consequences under s 134AB(38)(b)(ii). It was the extent to which her mental disorder incapacitated her from employment that was in issue at trial and on appeal.
The submission of senior counsel for the appellant was plainly correct that it was not necessary that the appellant establish that her disorder was more than serious to the extent of being severe when compared with other psychiatric disorders. The appellant had to establish that the consequence of her disorder, in terms of her earning capacity, was more than serious to the extent of being severe[1] and in addition that she had a permanent loss of earning capacity of 40 per cent or more.[2]
[1]Section 134AB(38)(d).
[2] Section 134AB(38)(e).
The trial judge in the course of his careful and comprehensive reasons stated that he had viewed the surveillance films. Based upon that viewing and the appellant’s responses to questions in cross-examination, which he considered affected her credit, his Honour was not satisfied that the appellant was suffering from the pain or restrictions which she claimed in her evidence and in the histories given various medical practitioners.
I have viewed the video footage and agree that it is not consistent with the account given by the appellant in evidence or in the histories she related to the medical experts.
An assessment of the appellant’s credibility resting upon the manner in which she answered questions is much more problematic. This case presents the dilemma which the court faces in deciding the issue of serious injury for itself, in reliance upon the evidence and other material before the judge who heard the application and any other evidence which the Court may receive.[3] Unlike a re-hearing pursuant to s 74 of the County Court Act, where the limitations under which appellate judges typically operate permit an allowance to be made for the advantages of the trial judge, this court may not on a rehearing under s 134AD make such allowances. The conclusions reached by the trial judge on all questions including matters of credit must be put aside. Hence the importance of very full reasons as emphasised by Ashley JA in Church v Echuca Regional Health.
[3]Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Church v Echuca Regional Health (2008) 20 VR 566, [113], [124]–[126[ (Ashley JA).
Where some aspect of the manner in which evidence is given influences the trial judge’s decision as to a question of credit, then it will be necessary for the trial judge to explain in sufficient detail what occurred. In the absence of sufficient specificity of the occurrence, this court will be unable to form any view as to whether it bore upon the witnesses credit.
The trial judge gave a number reasons for his conclusions as to the appellant’s credibility. Those reasons were sufficient for the purposes of an appeal under s 74. Unfortunately they were not amplified for the purpose of a rehearing pursuant to s 134AD. Moreover the appellant’s evidence was given through an interpreter. Accordingly, from reading the transcript I was unable to reach any independent conclusion that there was some aspect of the manner in which the appellant gave her evidence that affected her credibility.
Despite these limitations, I agree with Mandie JA, for the reasons that he has given, that the appellant has not established that her mental disorder has severe loss of earning consequences or that her loss of earnings capacity is 40 per cent or more. I also agree with Mandie JA that it has not been demonstrated that those claimed consequences are permanent.
The appeal should therefore be dismissed.
MANDIE JA:
Introduction
The appellant appeals to this Court from the dismissal in the County Court of her application, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’), for leave to bring proceedings for the recovery of damages in respect of injury arising out of or in the course of or due to the nature of her employment with the first respondent. The application was filed in the County Court on 23 April 2008, heard on 6-11 February 2009 and dismissed on 27 February 2009 on which date the judge published reasons for judgment comprising some 33 pages.[4]
[4][2009] VCC 108.
According to the express language of the Act, and as elucidated in a number of cases,[5] the Court of Appeal must decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application.[6] The reasons for judgment below are therefore of limited assistance but may identify matters of common ground and provide ‘useful signposts’ to this Court in carrying out its task.[7] The reasons may also be of some limited assistance if they describe any matter observed in court which, to the judge’s way of thinking, bore upon a witness’s credibility.[8]
[5]See s 134AD of the Act, Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 and Church v Echuca Regional Health (2008) 20 VR 566.
[6]And on any other evidence which the Court of Appeal may receive – but no such evidence was received on this appeal.
[7]Church v Echuca Regional Health (2008) 20 VR 566, [111]–[112] (Ashley JA).
[8]Church v Echuca Regional Health (2008) 20 VR 566, [113], [124]–[126] (Ashley JA).
The issues on appeal were to some extent narrower and were more clearly defined than at the hearing below. On appeal, it was not sought to prove a serious injury by establishing the existence of a ‘permanent serious impairment or loss of a
body function’[9] but solely by establishing the existence of a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.[10] I will refer hereafter to a mental or behavioural disturbance or disorder as a ‘mental disorder’. Further, it was not sought to establish the existence of a permanent severe mental disorder by reference to the pain and suffering consequences thereof but solely by reference to the loss of earning capacity consequences thereof.[11]
[9]Sub-para (a) of the definition of serious injury contained in s 134AB(37) of the Act.
[10]Sub-para (c) of the definition of serious injury contained in s 134AB(37) of the Act.
[11]See s 134AB(38)(b),(d) and (e) of the Act.
Further, it was common ground that the appellant, who had been working over a number of years as a cleaner for the first respondent (a contract cleaning company), had as a result of that employment developed pain in a number of areas of her body, including her neck, lower back, shoulders, arms and left foot. In particular the appellant had experienced pain in her right and left wrists. It was accepted that, as a result of these injuries, she had left her employment in October 2001. It was common ground that, apart from a brief attempt to return to work, she had not worked since October 2001.
The pain in her wrists was subsequently diagnosed as bilateral carpal tunnel syndrome. It was further undisputed that, as a result of successful surgery, she no longer suffered from bilateral carpal tunnel syndrome in the sense that there was no organic basis for other than minor residual pain from that source. Indeed, it was accepted on behalf of the appellant, and supported by the preponderance of the medical evidence (although it may not be so recognised by the appellant herself), that there was only a limited organic basis for any of the considerable pain said to have been continuously experienced by her since her successful surgery to the present day.
It was common ground that as a result of her initial work-related physical injuries and resulting loss of employment the appellant had developed a mental disorder characterised, on the evidence, as a chronic pain syndrome or pain disorder with depressed mood and anxiety. It was common ground that such pain as had been experienced by the appellant since her surgery and was still being experienced by her was substantially of a psychological nature in the sense that it was caused by that mental disorder.
I think it was also common ground that two matters that had been the subject of much consideration below were in reality of no relevance to the issues to be decided. The first matter related to a needle stick injury that the appellant had incurred at work at some time in 1999 and which had caused her anxiety but after which she had resumed full-time employment. The second matter was the fact that the appellant’s husband had died from cancer in January 2008, after a sickness of some three to four months and that the appellant’s mental state thereafter had understandably been affected by her bereavement.
Relevant provisions
The provisions of particular relevance to the present appeal are:
Section 134AB …
(19) For the purposes of subsection (16)(b) –
(a) A court … must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;
(b) For the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability; …
(37) In this section -
…
serious injury means –
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; …
(38) For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) –
…
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
…
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e) where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), … a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.
Issues
In light of the foregoing, there was substantial agreement that the main issues on the appeal were as follows.
Firstly, having regard to the definition of serious injury contained in s 134AB(37) of the Act and to the requirements of s 134AB(38)(d) of the Act, was the mental disorder of the appellant proven to be ‘severe’ in relation to the loss of earning capacity consequences thereof?
Secondly, having regard to the requirements of s 134AB(38)(e), had the appellant established both that she had a consequent loss of earning capacity of 40 per centum or more at the date of the hearing of the application and that she would continue ‘permanently’ to have a loss of earning capacity which would be productive of financial loss of 40 per centum or more?
General Evidence
The appellant’s application below was supported by her affidavit sworn 6 December 2007 in which she deposed in substance as follows.
The appellant was born on 18 April 1960 in Macedonia. She was in receipt of weekly payments of compensation, having last worked on 25 October 2001.
The appellant came to Australia in 1989. She had very limited command of the English language, could not read or write in English, and did not know how to operate a computer.
Prior to working for the respondent, the appellant was employed by Aspen By Products for about eight years as a salter doing unskilled labouring work. She then commenced employment for the respondent and continued to do so until 25 October 2001 suffering injury which forced her to cease work on the date referred to above.
In October 2001, the appellant experienced pain in her back and legs and to some extent her neck as a result of using a large and heavy scrubbing machine. The machine placed considerable stress upon her spinal column. She also had pain in her arms. The pain she experienced forced her to cease working. After attending her general practitioner and remaining off work for some weeks, she attempted to resume, but was unable to do so. She was subjected to a large number of investigations, including CT scans, an MRI scan and x-rays and ultimately she was referred for carpal tunnel decompression surgery on her left and right wrists in 2002 and 2003 respectively.
Despite the surgery, she continued to suffer pain in both arms and pins and needles in both hands, especially at night.
She also suffered from pain in her neck with stiffness and pain radiating into her left shoulder and upper arm. She suffered from low back pain and low back stiffness in the mornings and had pain radiating into her left leg and left foot. She was limited in her ability to sit or stand for other than reasonably short periods. She regarded her back ‘as the worst of my injuries’.
She summarised the medications she had been prescribed and was continuing to take which substantially comprised anti-inflammatory medication and painkillers.
She said that, due to her back injury, she was limited in what she could do on a daily basis especially in relation to vacuuming, mopping, making the beds and washing. Her husband assisted her before he became ill and her son also assisted her.
She deposed as to continuing pain in her arms and as to discussions she had had with a neurologist as to possible arm surgery of an unspecified nature. She said that she had limited strength in her arms, especially her left arm. Her left hand was quite painful and her fingers seemed to stiffen up. She said that she was right-handed but that the wrist injuries limited her in performing any repetitive activity or lifting. She had difficulty lifting heavy cooking dishes and other heavier kitchen utensils.
She said that she had undergone physiotherapy for her arms and back but that there had been no improvement. She required ongoing painkilling medication. She said that her back pain became worse with any prolonged standing, walking or sitting and that she was limited in her shopping activities.
She said that she did not believe that she could work in any light job given her symptoms and restrictions, her lack of English and her computer illiteracy. She could not return to the kind of physical work that she had done with the respondent.
She referred to the loss of income that she had suffered as a result of her injuries over the past six years.
Three surveillance films were put in evidence at the trial and I have viewed each of them. The judge in his reasons for judgment referred to these films in the following terms:[12]
An attack was made upon the plaintiff’s credit. Three surveillance films were shown of January 2009, and May and August 2008. In the film of January 2009, the plaintiff was shown with her daughter shopping. Her grandchildren, one a baby and one about two years old were also present. On a number of occasions in the course of this surveillance film, the plaintiff lifted the two year old child into her arms to carry her across a suburban street, and to carry her in a shopping centre. On occasions, the plaintiff leaned into a motor vehicle in order to secure the two year old child in a seat. She walked in a normal manner, was able to open and close shop and car doors and on one occasion reached into the pusher to lift the two year old child out. She carried shopping in both hands on one occasion, including a bag containing a number of litres of milk, and did so in a free and unrestrained manner. There was no sign of any restriction or pain as a result of these activities.
Further surveillance film was taken in August 2008 which is brief and showed the plaintiff walking along a suburban street moving without restriction.
The plaintiff is shown in surveillance film of 1 May 2008 initially in a car park at a suburban shopping centre. She carried her grandchild from the car and placed her in a pusher.
On 22 May 2008, she was shown in a shopping centre carrying her grandchild over a considerable period, again without difficulty. She was seen to push a loaded supermarket trolley and to unload the contents into her daughter’s car. The contents include large boxes of soft drink. It is noted at the time that the plaintiff’s daughter is pregnant and the plaintiff explained that she lifted the apparently heavy articles because of her daughter’s condition.
Throughout the various surveillance films, the plaintiff moved in an unrestricted manner and without any sign of pain either in respect of the activities involving her arms, neck or back. I am uncertain of the weight of her grandchild in the video but would accept the child in the video of January 2009 would weigh 8 to 10 kilograms. Of significance is a period when the plaintiff turned and leaned into the car and spent a considerable period securing the child in a car seat, her back bent throughout.
Any consideration of surveillance film must take into account the fact that the surveillance film is only a snapshot in time. Further, I accept that person with injuries as the plaintiff describes would have days where they were able to do more activities than others. I should also note that on one occasion the plaintiff lifted her grandchild while she and her daughter were in the middle of a street in order to avoid traffic. Any person in the plaintiff’s position, regardless of injury, would do the same. Nonetheless, I am of the view that the activities depicted in the surveillance film are inconsistent with the complaints of pain and restriction the plaintiff makes in her affidavit, and in the histories to the various doctors. She regularly describes the pain in her arms and back as constant and restricting her in a wide range of activities. She claims she cannot do heavier domestic duties, and is unable completely to undertake any form of employment. Yet in the video, she is able to lift considerable weights for significant periods of time, to bend into the vehicle and to play a significant and active role in shopping with her family. I am of the view that these activities are inconsistent with her complaints and accordingly I find that her credibility is affected.
[12][2009] VCC 108, [85]–[90].
I would endorse in full the judge’s description of what is shown in these films. The free and unrestricted movement of the appellant is striking, as is her apparent lack of difficulty in lifting weight whether it be a child, or supermarket products of some size and obvious weight. Like the judge, I think that the credibility of her evidence concerning her pain and the consequent restriction on her physical capabilities is substantially affected. I note that her evidence on these matters was not corroborated by the evidence of any other person, such as her adult son who was living at home with her and who would have had the opportunity to observe her in domestic and other situations and her two adult daughters, with at least one of whom she goes shopping (as shown in the films).
The appellant gave oral evidence below. Her examination-in-chief was brief and the main features of it were as follows. The appellant verified her affidavit. She said that she had problems in her arms and hands and developed pain, swelling and numbness and had a problem in her lower back that continues and ‘goes into the neck and down the left leg’. She said that she experienced pain and also felt nervous. She did not sleep well and felt very upset. Sometimes she got very irritable, nervous and started yelling and sometimes she was very quiet, didn’t feel like talking to anybody and cried.
The cross-examination of the appellant was more extensive. She was asked about the statement in her affidavit that she regarded her back as the worst of her injuries but qualified this by emphasising the pain in her arms and hands and that ‘my hands are bad, and without my hands I can’t do anything’ but that she did experience a lot of pain in her back. The appellant was cross-examined in detail about the physical things that she was able to do or not able to do and generally described her difficulties but commented on a number of occasions that she tried to do as much as she could. She was asked about her difficulty with picking up weights and lifting things and said that she had difficulty but that if she had to do something and it was in her head to do it, she would do it irrespective of the pain – she didn’t want to be an invalid. She said that she tried to go back to work but her employer refused to help her. The appellant was asked why, over a period of some years since it had been apparent to her (as she said) that the first respondent did not wish to take her back, she had not made any attempts to look for a job. It is fair to say that her responses to this line of questioning were a little evasive although I think that she conveyed that, although she wished to try, she could not ‘guarantee’ to a prospective employer that she would ‘be working for more than a day’.
During the course of the appellant’s cross-examination, the surveillance films were played in court and the appellant agreed that they showed her performing a number of activities the nature of which she confirmed. It was put to her that there was no sign of her having any restriction at all while doing those activities to which she responded ‘maybe it doesn’t show it on the film but I’ve got the problem, and when I want to do things, I do it. The problem is suffering later’. After a further series of questions concerning her activities as depicted in the films, it was put to the appellant that there was a very wide variety of activities that she was able to perform, to which she responded ‘when it needs to be done I can do it. For how long I do it, that’s a different question. But if it needs to be done, I will do it.’ The appellant said that she did not think she could work as a process worker doing light work. She said that she initially wanted to go back to work and try work, however they rejected her and ‘since that time mentally I’ve become much worse and I feel that I can’t work’. She said that since about 2003 she had become worse because mentally she had ‘become very nervous, scared of doing work, people irritate me, scared of going out and I don’t feel that I can do anything’.
The judge below said that he formed the view that the appellant was not being open and responsive in the course of cross-examination and that at times he found her to be evasive, even notwithstanding her language difficulty. His Honour said that regularly the appellant would not answer questions directly and that he was of the view that her response to questions in cross-examination further affected her credit. The judge had the advantage of seeing the appellant and also hearing her (albeit through an interpreter) but, on a mere reading of the transcript of her cross-examination, I am unable to form any view adverse to her credit and I do not think it is open, having regard to the role of the Court in this class of appeal, to take into account the judge’s views as to the appellant’s credibility in cross-examination. On the other hand, I do not find her evidence to be overly impressive either, even allowing for the disadvantages of her level of education and her communicating through an interpreter.
Medical evidence
Given the limited issues on appeal, the key expert evidence is confined to a number of psychiatrists, two of whom were cross-examined below. It should be observed that, it being accepted that there is only a limited organic basis for the pain of which the appellant complains, the psychiatric evidence is substantially dependent upon the veracity of the information given by the appellant to the psychiatrists.
Dr David Weissman, a consultant psychiatrist, saw the appellant on 16 December 2008 and provided a written report of that date that was admitted in evidence below. In his report, Dr Weissman says that the appellant had a fairly good comprehension and command of English but she used the services of a professional Macedonian speaking interpreter for about one-third of the interview. Dr Weissman says that he asked the appellant whether her physical symptoms (pain, swelling and numbness) had improved, deteriorated or stayed the same since 2001 and that she told him that her physical symptoms had roughly stayed the same since then and that surgery had not really helped her hands. She told him that she had headaches especially in the morning, she took painkillers and not anti-depressants and had no treatment other than from her General Practitioner. She described her physical activities (I note, broadly consistently with her own evidence). She told Dr Weissman of her depression, crying, sleep disturbance and loss of self-esteem and confidence.
Dr Weissman said that the appellant presented with ‘moderately severe mixed reactive depressive and anxiety symptoms as a consequence of, or secondary to, her work-related physical injury’. Dr Weissman said that it was outside his area of expertise to comment about ‘her physical or surgical condition or capacity for work thereof’.
Dr Weissman concluded:
Treatment Recommendations
The [appellant] may benefit from seeing a Macedonian-speaking clinical psychologist for supportive care, although this will do no more than control the worst of her symptoms, without leading to significant improvement.
She may benefit from a therapeutic trial of anti-depressant medication…
Prognosis
Her psychiatric prognosis is unfavourable.
In answer to some questions put by the appellant’s solicitors, Dr Weissman said, in the same report, that the appellant did not have any capacity for suitable employment on psychiatric grounds alone, that ‘[o]n purely psychiatric grounds alone the work injury impacts upon [the appellant’s] social, domestic and recreational activities in a moderate manner, and totally incapacitates her for employment activities’ and that these restrictions were ‘likely to be of a long-term nature’.
In cross-examination, Dr Weissman said that he had only seen the appellant once and for less than an hour. Dr Weissman said that it was particularly difficult, almost impossible, for a psychiatrist or anyone else ‘to differentiate between feigning, malingering, conscious and unconscious factors, those sorts of things’ and also ‘exaggeration of symptoms’. Dr Weissman said that if an adjustment disorder resulted from an initial physical, surgical organic injury, even if that injury had resolved or been treated successfully, it was still possible to have on ongoing adjustment disorder because of the secondary and tertiary consequences such as loss of job and the like. A person could develop a bona fide psychiatric condition or mental injury.
Dr Weissman was asked why he had said that the work injury was indefinite and likely to continue throughout the foreseeable future and that the appellant was not suitable for retraining, if, organically, she was fit for suitable duties. Dr Weissman replied that he had said that the appellant should have a clinical psychology treatment and anti-depressant medication trial but that that would do no more than control the worst of her symptoms without leading to significant improvement, based on his clinical experience. It was put to Dr Weissman that the appellant’s claim and the litigation might be a factor affecting her condition. He replied that this did not ‘seem to stand out’ in the time, around 45 minutes, that he saw the appellant.
After viewing the films, Dr Weissman said that they said nothing about whether the appellant actually experienced pain or not and he also referred to possible fluctuation in her condition. Referring to the activities performed by her in the films, Dr Weissman said that simply by looking at the films one could not tell whether her depression was moderate – it could even be mild or it could be absent – there might be no psychiatric condition or mental injury but people with moderate depression could perform those activities whereas people with severe depression anxiety would be much less likely to do so.
Dr Weissman was asked why the appellant should not be encouraged to go out and find some lighter type duties. He said that what he was saying was that, based upon his detailed assessment and the symptoms she reported, and ‘based upon the definition of suitable employment and [his] understanding of the pre-existing education, language skills, experience, training, that [he] thought that she was less likely than likely to be able to pursue vocational, occupational rehabilitation and job seeking in the future’.
Dr Weissman was asked about possible kinds of employment. He was asked about an office cleaner doing light cleaning and responded that, purely on psychiatric grounds, this was possible and that, if she had such a job to go to, it might improve her mood.
In relation to psychological treatment, Dr Weissman said he had in mind ‘more of a prophylactic, holding supportive approach, which basically means establishing a therapeutic alliance and trusting relationship with someone and ventilation of affect.’ It was put to him that the next step, after establishing that, would be the psychologist encouraging her to go back into the workforce. The following exchange followed:
Q: Wouldn’t that be the next step?
A:If the psychologist was convinced that the worker’s symptoms didn’t prevent her from doing so.
Q:So that could happen in the future if she had the proper treatment?
A:Could, yes.
Q:The anti-depressants, what would they do?
A:Well, they might help lift her mood and…
Q:Make her feel a bit more positive?
A:She might do yeah.
Q:So they’re the things that you suggest. So you wouldn’t be closing the door entirely on a lady of this age to go back and do something once this is all behind her?
A:No, I wouldn’t close the door entirely.
Finally, the following exchange occurred between the judge and Dr Weissman:
His Honour: … I suspect it will be put to me, well, there’s at least several orthopaedic surgeons who say that physically there’s not a great deal wrong with her. I suspect it will be put to me that, as much as you can get from a video – and I appreciate there are limitations on that – she seems to be performing a range of activities in a fairly free and unrestricted manner. And if that’s the case, it’s hard to accept that she has a psychological reaction along the lines that you suggest?
A: Yes.
His Honour: I’m just wondering what your opinion on that is.
A: I’d agree with that.
Dr Louise N Seward, a consultant psychiatrist, saw the appellant on 27 January 2009 and provided a written report of that date that was also admitted in evidence below. In her report, Dr Seward noted that the appellant required an interpreter for the interview but had some rudimentary understanding of English and occasionally answered a question without the interpreter. The appellant described to Dr Seward her former employment as a cleaner. The appellant told her that she always started the work day doing heavy work with 2 hours of mopping and then would use the buffers and scrubbers and that most of the duties consisted of heavy work including collecting large bags of rubbish, vacuuming and cleaning and scrubbing sinks. The appellant told Dr Seward that she noticed symptoms that came on over a two week period with pain in her arms and lower back and then swelling in her wrists and legs. The appellant told Dr Seward that after ceasing work, and after surgery to her hands in 2002 and 2003, she initially had some improvement but this was temporary and she continued to be troubled with pain, numbness and pins and needles and swelling in both of her hands. The appellant described to Dr Seward widespread pain throughout her body including pain in both legs, lower back pain and stiffness in her neck. She reported that she woke most mornings with headaches and Dr Seward records that at this point in the interview the appellant broke down crying. The appellant told Dr Seward that there had been no improvement in her pain levels over the past eight years and little improvement in her hand symptoms. The appellant said that her brief return to work had failed because she could not tolerate the pain in multiple sites of her body and had made no further attempts to return to work. The appellant told Dr Seward that she had not been referred for rehabilitation or retraining and had largely been at home.
The appellant told Dr Seward that she felt she could not return to work because of her widespread pain and that, in that setting, she had become depressed – this had been compounded by the death of her husband. She described sleep disturbance, a stable appetite, but poor energy levels with feelings of weakness and lethargy.
Dr Seward stated her opinion that the appellant had developed a chronic pain syndrome and adjustment disorder with depressed mood that had developed in the setting of physical injuries and that she had never made sufficient recovery to make any further attempts to return to work. Dr Seward said that the appellant was unable to return to her pre-injury duties both on physical and psychiatric grounds and there had not been any attempts to return her to alternative work. She had been out of the workforce for seven years and continued to be chronically depressed. Dr Seward opined that the appellant was not suitable to undertake any retraining due to her language difficulties and her level of depression with impaired concentration. She doubted that the appellant would benefit from a referral to a psychiatrist or a counsellor as she had now been depressed for eight years. Dr Seward concluded:
[The appellant’s] restrictions in social, domestic, recreational and employment activities have persisted for some time [and] are likely to continue on a long-term basis. Her overall prognosis for her work injury is poor. She has continued to suffer from a Chronic Pain Syndrome and Chronic Depression for seven years with little improvement. Her situation has now been further compounded by the unfortunate death of her husband 12 months ago.
Overall I would conclude that her work injury in 2001 has had a significant impact on her capacity for employment and has led to restrictions in her social, domestic and recreational activities.
Dr Seward testified that she had practiced as a psychiatrist for 20 years. She verified the contents of her written report.
In cross-examination, Dr Seward said that the appellant’s chronic pain syndrome could be interchangeably described as a pain disorder with underlying medical and psychological factors –
What I am meaning here is there are identified organic factors, she has had two carpal tunnel releases and has document[ed] a lower back injury, but her complaints of pain are excessive to what one would expect with an organic condition, and therefore she has pain levels higher than one would expect, and they’re more incapacitating. So that’s why I made that separate diagnosis, because it’s a feature in her presentation that the pain is more than one would expect from these conditions, and her level of incapacity. I also made a diagnosis of chronic adjustment disorder with depressed mood. [Dr Seward went on to refer to Dr Weissman having noted anxiety and also to refer to the appellant’s bereavement]
Dr Seward said that there was an interplay between the appellant’s depression and the pain syndrome, so her perception of pain was more excessive than one would expect. By calling it a chronic pain syndrome, Dr Seward said that she was alerting people to the fact that she had excessive somatic symptoms and that the pain was more than she would expect –
I did think she had excessive pain, and it’s also – some of her symptoms are vague, and hard – it’s hard to pin her down at the interview. …
Q:So what you’re saying is, in other words, she could be exaggerating the complaints that she’s got, in relation to an organic injury? It could be called exaggeration, couldn’t it?
A:Well, that may be some people’s view, but it is well known in depression that somatic symptoms are perceived at a higher level, so what would be a normal level of pain if your mood is normal, is a higher level of pain with depression. So I don’t think she’s deliberately exaggerating or feigning it, I think her perception of the pain is real and it is more than if your mood is normal.
Dr Seward was referred to a report from an orthopaedic surgeon (Mr King) stating that the orthopaedic problems were of a minimal nature. Dr Seward said:
That would be in keeping with what I found, her continuing symptoms of pain are much more part of her depression rather than having an organic basis. And I then separated it out to call it a chronic pain syndrome.
His Honour: As I understand what’s being put to you, Doctor, it’s this: the reason for the depression is the pain and the consequent … ?
A:Well, loss of employment she particularly identified. She became depressed once she could no longer work.
Dr Seward was referred to a report of another orthopaedic surgeon (Mr Barrett), who also referred to radiological evidence and the judge referred Dr Seward to Mr Barrett’s statement that there was really no true clinical or radiological evidence of significant lower back injury. Dr Seward said:
So then the underlying basis for most of her pain is psychiatric. She’s had some presumably soft tissue injury originally which should have – she should have made a recovery from but her symptoms persist. And I was questioned before about whether I thought she was feigning or malingering. I did not think that. I thought that she had a chronic mood disturbance which had become superimposed on the original injuries and she then had these symptoms persisting as part of the depressive symptomatology. And I think that’s quite a common clinical occurrence.
Q:How can you say she’s not feigning? How can you in 45 minutes – she comes in, tells you she’s got all the pain, you accept the pain and say it’s psychologically based. How can you make that distinction in 45 minutes of seeing her?
A:I cannot make it as 100% distinction. I have been fooled before and I have seen videos of people I thought were very genuine and ended up having a much bigger range of movement than I thought they had and had little in the way of symptoms. But she presented to me in a genuine manner. I thought she had significant mood disturbance and I considered that the pain symptoms were part of that mood disturbance.
Further cross-examination followed in which Dr Seward acknowledged that she got the history of depression from the appellant’s own statements:
Yes, I got it from her, that’s how we make a diagnosis of depression, we take a history and do a mental state examination. Now, the features on mental state examination are she communicates a depressed mood, her affect is depressed, her thought stream is slow, and the thought content has depressive themes, and obviously when I saw her, some themes of bereavement, so that’s how I came to the conclusion she had a depression.
Commenting on the fact that the appellant’s general practitioner had not referred her for any psychological treatment, Dr Seward said that her concern was that in fact the depression had been missed and that the appellant was undertreated –
I think what has occurred is a chronic low grade depression for many years, with little in the way of anxiety symptoms that I could elicit, so she just continued to be withdrawn, quietly depressed and went unnoticed.
After some cross-examination on other matters, the questioning returned to the topic of non-treatment of the appellant’s depression and Dr Seward said:
It has developed in the setting of the stressors we have identified, her physical injuries and ceasing work. She has never made a recovery from it and is suffering from a chronic condition. Her general practitioner has not referred her for any treatment and the only treatment she has had is a night sedative, either Serapax or Valium. And I want to point out that insomnia is a critical symptom of depression and she’s been treated for that for many years. But a more appropriate treatment would have been an anti-depressant with a night sedative effect. So it’s hardly surprising there has been no improvement. Then on top of that there has been a bereavement.
Dr Seward was asked by the judge whether there would be no basis for the disorder that she had diagnosed if in fact the situation was that the pain was minor and that the appellant had got the capacity to work and could do various domestic and recreational tasks. Dr Seward replied:
Well, no, there wouldn’t be much basis because she has capacity.
His Honour: So does it get down to whether or not she’s consciously feigning or exaggerating the situation?
A: Well, that’s certainly a factor that needs to be considered.
His Honour: In your opinion she’s not and it’s a legitimate psychological disorder?
A:My opinion was that she was generally[13] depressed and happened to be grieving when I saw her. But I – as I have been reminded today, I only saw her 45 minutes. …
[13]It may well be that this is an error in the transcript and that Dr Seward used the word ‘genuinely’.
Dr Seward was then shown the surveillance films and was asked whether they showed the appellant performing a range of activities without apparent restriction, to which she replied:
Well, obviously there’s repetitive lifting, bending, I didn’t actually specifically ask her what she could do in terms of her low back injury. I didn’t do a functional assessment at the time. I did ask her about general domestic duties, and she told me that she was taken shopping by her daughter, because she couldn’t drive, and that her daughter assisted her with a lot of activities. So from that point of view that was not inconsistent, but I have to say I never asked whether she could lift heavy items, or any of those sort of occupational physician type questions, because of time constraints.
Dr Seward agreed that it was important in relation to psychological pain as it was to physical pain to see what the appellant could do and what she could not do. After some further questioning about the significance of the films in relation to what the appellant had said to her, Dr Seward said that the appellant ‘would seem to have some capacity for light duties in terms of her physical state’ and that she thought there was ‘little in the way of underlying severe pain, she is able to do some duties, so she has some capacity for physical activity, she is not confined to the house doing nothing’ but that:
I have also diagnosed that she has a depression, and I don’t think that the video material sheds much light on that level of depression. She is doing activities that she said she is doing to me and would be in keeping with a moderate level of depression and spending time with her daughter and grandchildren … but she has a moderate level [of depression] with some sleep disturbance, fluctuating appetite and weight. She reports impaired memory and concentration and she reports relative social withdrawal. So she has moderate symptomatology.
Dr Seward testified that she considered, from a practical point of view, that it was going to be very difficult to get the appellant back to the workplace as she had been out of work for eight years, she had not been rehabilitated and had not been retrained but that ‘she would be fit for part-time suitable duties perhaps’. Dr Seward was asked whether, if the appellant had some psychological counselling and some anti-depressants, that would improve her mood and replied:
Well, the other factor is that she is now so well entrenched in her role. I don’t think we could say with confidence but I think it’s worthwhile, particularly if she is requiring a night sedative, it’s much better to be on an anti-depressant as a night sedative than on a minor tranquiliser.
After re-examination of Dr Seward, the judge asked her some further questions concerning the appellant’s prospects of improvement after appropriate treatment and after she was taken out of the litigation setting. Dr Seward then said, inter alia:
Well, you would have to monitor her to see how it went, and generally the chances of improving with an anti-depressant are about 70 per cent, with chronic – with some underlying chronic medical conditions it’s less, so you’re not guaranteed of a response. It’s not 100 per cent guaranteed, that she will respond to anti-depressants.
His Honour: I’m not asking for 100 per cent, I’m just asking as to your view of the prospects of any significant improvement, or is that not possible to prognosticate?
A:Well, it’s very difficult to prognosticate, it varies from person to person, but overall the chances are greater that she would improve rather than she wouldn’t.
Dr Seward added in response to a further question from the appellant’s counsel that the fact that she had had the condition for some seven or eight years meant that she was more likely to be treatment resistant.
There was some evidence going both ways on the question of the permanence of the appellant’s mental disorder from other psychiatrists but only in written reports. For example, Dr N Strauss, whose evidence was somewhat unsatisfactory, said in a report dated 2 December 2008 that, considering how long it had been since the appellant had worked, her age and her personal situation, it would be ‘virtually impossible to rehabilitate this woman’ and that he could not ‘see her working again and her motivation is low’. On the other hand Dr L Turecek said in an admittedly old report dated 26 November 2002 that he did not consider that the appellant showed permanent psychological impairment and that she was ‘motivated to return to suitable employment if this would be organised bearing in mind the restrictions and limitations of residual physical injuries’.
Conclusions
The Court must be satisfied on the balance of probabilities that the appellant’s injury is a serious injury.[14] As indicated at the outset, it was common ground that such pain as the appellant had experienced since her successful surgery to the present day had a limited organic basis and primarily stemmed from her mental or psychological disorder, characterised as a chronic pain syndrome or pain disorder with depressed mood. For present purposes, the appellant must establish that her said mental disorder is ‘permanent’ and ‘severe’.[15]
[14]Sections 134AB(16)(b) and (19)(a) of the Act.
[15]Section 134AB(37)(c) of the Act.
The first issue is whether the appellant has established that her said mental disorder is ‘severe’ by reference to the loss of earning capacity consequences thereof to her, that is, when judged by comparison with other cases in the range of possible mental disorders.[16] For this purpose, relevantly, her mental disorder should not be held to be severe unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible disorders, fairly described as being more than serious to the extent of being severe.[17]
[16]Section 134AB(38)(b) of the Act.
[17]Section 134AB(38)(d) of the Act.
I am not satisfied, on the balance of probabilities, having viewed and considered the surveillance films, and in the light of the evidence as a whole, that the pain being experienced by the appellant is such that she is physically unable to perform unskilled employment duties of a light nature. The only evidence supporting her claim in this regard is constituted by her uncorroborated evidence which, as I have said, is not overly impressive. The only question is whether her moderate level of depression, as diagnosed, together with such pain as she is in fact experiencing, is such that she is unable to perform any unskilled employment duties of a light nature. The evidence in support of that depends on the opinions of two psychiatrists who each saw the appellant only once, for about 45 minutes each. They each primarily had to rely upon what she told them and upon their observations of her on that single occasion. There was no evidence from a treating doctor other than her general practitioner who did not assist much in this regard. While I am satisfied, on the basis of the psychiatric evidence, that the appellant is suffering from some level of depression, I am not satisfied, on the balance of probabilities, that her mental disorder can be characterised as being more than serious to the extent of being severe
in relation to the loss of earning capacity consequences thereof to her.
The second issue is whether, in any event, the appellant has established that her said mental disorder is ‘permanent’.[18] Even on the assumption (contrary to my view) that the appellant is currently suffering ‘severe’ loss of earning consequences from her said mental disorder, I am not satisfied, having considered the psychiatric evidence, especially from Drs Weissman and Seward, that these consequences are permanent. I interpolate that I find the evidence of Dr Seward, in that regard and generally, to be more impressive than that of Dr Weissman. The appellant has never been treated for her mental condition and these medical experts, though sceptical, were unable to exclude a real prospect of the appellant’s significant improvement after appropriate treatment.[19]
[18]See s 134AB(37)(c) of the Act.
[19]See, in particular, [50] and [67] above.
Further, in relation to both of the foregoing issues, the appellant bore the onus of proving her inability to be retrained or rehabilitated or to undertake suitable employment or any employment and the extent of such inability.[20] I do not think that she discharged that onus. For the same reason, I do not think that the appellant established that she had a loss of earning capacity of 40 per centum or more[21] and, more particularly I consider that she failed to establish that she would continue ‘permanently’ to have a loss of earning capacity which would be productive of financial loss of 40 per centum or more[22] for the reasons already stated.
[20]Section 134AB(19)(b) of the Act.
[21]See s 134AB(38)(e)(i) of the Act.
[22]See s 134AB(38)(e)(ii) of the Act.
For the foregoing reasons, I am not satisfied on the balance of probabilities that the appellant’s injury is a serious injury within the meaning of the Act. I would order that the appeal be dismissed.
HANSEN AJA:
I agree with Mandie JA.
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