Calleja v State of Victoria (Department of Education and Training)
[2024] VCC 108
•6 February 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01706
| KEIRSTON LEE CALLEJA | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 February 2024 | |
DATE OF JUDGMENT: | 6 February 2024 (ex tempore) | |
CASE MAY BE CITED AS: | Calleja v State of Victoria (Department of Education and Training) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 108 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury – complex post-traumatic stress disorder – chronic major depressive disorder – adjustment disorder – leave sought for pain and suffering – loss of earnings – severity – permanency – disentanglement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Transport Accident Commission v Katanas (2017) 262 CLR 550; Acir v Frosster Pty Ltd [2009] VSCA 454; Richter v Driscoll (2016) 51 VR 95; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Johns v Oaktech Pty Ltd [2020] VSCA 10; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232; A G Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grace v Elmasri [2009] VSCA 111; Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to commence proceedings for pain and suffering and pecuniary loss damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Ms A Kusiak | Redlich’s Work Injury Lawyers |
| For the Defendant | Ms K Karadimas | TG Legal & Technology Pty Ltd |
HIS HONOUR:
Introduction
1The plaintiff alleges that she has sustained a psychiatric injury arising out of or during the course of her employment with the defendant as a teacher, from 16 April 2012 until March 2017. She relied upon a condition of complex Post-Traumatic Stress Disorder (“PTSD”); alternatively, a Chronic Major Depressive Disorder with associated anxiety and features of traumatisation; alternatively an Adjustment Disorder with Mixed Anxiety and Depression as satisfying paragraph (c) of the relevant definition of “serious injury”.
2The application was made in respect of both pain and suffering damages and pecuniary loss damages.
3On weekly payments on the basis of total incapacity for employment since she ceased work in March 2017, Ms Calleja seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for severe mental or permanent severe behavioural disturbance or disorder in accordance with the narrative test set out in s325(2)(b) and (d) of the Act and the principles in Mobilio v Balliotis.[1]
[1] [1998] 3 VR 833
4For the reasons that follow, I am satisfied Ms Calleja ought be granted leave under s335 of the Act to bring common law proceedings to recover damages for a psychiatric injury sustained in the course of her employment for loss of earnings and pain and suffering.
5A person who satisfies the loss of earning capacity requirements of s325 of the Act, which I find in this application, is entitled to bring proceedings for the recovery of damages for both pecuniary loss and pain and suffering damages.[2]
[2] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
6Upon the hearing of the application, the plaintiff relied upon affidavits affirmed on 24 November 2022 and 29 May 2023, and limited oral evidence-in-chief adduced with leave of the Court. The parties tendered various documents including medical reports, radiology reports, a vocational assessment, along with other documents. The plaintiff was the only witness to give viva voce evidence. No other witnesses were required by the parties for cross-examination.
The issues
7There is no dispute that Ms Calleja suffered a compensable injury, however the nature of the diagnosis remained in issue.
8Ms Karadimas, counsel for the State of Victoria, agreed that Ms Calleja's credit is not in issue. That was an appropriate concession and, accordingly, I may rely upon her evidence.
9The principal issues in dispute by way of summary are as follows.
10The main issue in the case is whether the plaintiff's current incapacity for employment is permanent. A subcomponent of the defendant’s argument about permanency was the contention that the injury was not yet stable.
11The defendant submitted that:
(a) there were multiple diagnoses reflected in the medical evidence which were not all appropriate, in particular, the diagnosis of complex PTSD;
(b) the plaintiff was not receiving appropriate psychological treatment; and if this occurred, her condition was likely to improve;
(c) whilst there had been some improvement with EMDR treatment and also with cognitive behaviour therapy administered by psychologists in the past, there was no evidence of similar improvement with the treating psychologists over the past six years.
12The submission was developed that Ms Calleja had not had proper treatment for her condition because her treating psychologist, Ms Gillian Hanna, was treating her inappropriately for PTSD, and, as a consequence, she had largely gone untreated. This submission relied upon the opinion, in particular, of consultant psychiatrist Associate Professor Peter Doherty.
13The State of Victoria submitted that the threshold of permanency required the evidence to establish that Ms Calleja was stable, and, in particular, that she had exhausted all her treatment options, including antidepressants. In terms of the various recommendations made by both treating and examining doctors over the years, the defendant submitted that this treatment had not been explored, and therefore her injury, and the consequences of it, were not permanent.
14There were two other issues raised in final argument which I wish to dispose of at the outset: the issue of disentanglement; and the issue of rehabilitation and retraining.
Disentanglement
15It is not in dispute that there are non-work related matters, particularly fertility issues, difficulties with the relationship with her husband, bereavement issues following her mother's death in 2008, and a back injury in or about 2011 at Seville Estate Winery.
16To the extent which any ‘disentanglement’ issues may be relevant:
(a) there are no physical consequences of the injury to the plaintiff's spine in 2011 relied upon;
(b) there is no evidence of psychiatric consequences from any other issues. This was addressed specifically by Associate Professor Doherty where he effectively expressed the opinion that the fertility issues, although significant, did not result in any incapacity;[3]
(c) it was not in dispute that the plaintiff consults Dr Akshay Wadegaonkar, general practitioner, for other non-work related medical conditions, but there is no evidence any of these were productive of incapacity at all, save for migraines which pre-existed her work injury;
(d) the plaintiff’s evidence was not challenged as to the source of the work-related consequences relied upon by her in cross-examination;
(e) there was no medical evidence of Ms Calleja receiving current treatment for any other psychological condition, other than treatment for her work injury;
(f) counsel for the defendant could not identify in submissions any consequences relating to non-work related stressors other than in her activities of daily living, and sometimes her concentration being somewhat affected.
[3] Defendant’s Court Book (“DCB”) 14
17I reject the submission that absent her work-related condition, the plaintiff was going to take long service leave in any event, in April 2017, when she ceased work. This does not accord with her evidence in cross-examination and re-examination which was to the effect that the reason for taking long service leave was the build-up of work stressors.
Rehabilitation and retraining
18As to rehabilitation and retraining, I accept Ms Pilipasidis’ submission that Ms Calleja was not looking for work at relevant times since her injury in 2017 is because she had been certified as being unfit to do so.
19Further, in 2019, Dr Anthony Sheehan, a psychiatrist who examined the plaintiff at the request of the WorkCover insurer,[4] expressed the view that further engagement with the rehabilitation provider was not appropriate until she had regained her work capacity.[5]
[4] In July and November 2017, August 2018 and April 2019
[5] Plaintiff’s Court Book (“PCB”) 151
20I find that s525(2)(g) of the Act does not apply in the circumstance of a person certified as having no work capacity. It is not in dispute that the plaintiff remains on weekly payments on the basis of her total incapacity for employment.
Legal principles
21The relevant legal principles in applications of this type are well known and not in dispute.
22The plaintiff bears the onus of demonstrating that her psychological condition is permanent, the extent of her pecuniary loss and that the consequences to her are severe.
23I was referred to the decision of Papamanos v Commonwealth Bank of Australia.[6] The consequences identified by the Court of Appeal, whilst indicators, are not prerequisites for a finding of severity, having regard to the range of possible mental conditions, including those that do not come before the Court.
[6] [2014] VSCA 167
24The High Court, in Transport Accident Commission v Katanas,[7] confirmed the correct approach as follows:
“As can be seen, the point of their Honours’ observation that the range as formulated by the primary judge was of ‘limited utility’ in the assessment of a mental disorder or disturbance was that:
‘a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment [and] the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly call for that level of treatment.’”[8]
[7] (2017) 262 CLR 550
[8] Ibid, at paragraph [23]
25To satisfy the requisite threshold in relation to pecuniary loss I must be satisfied Ms Calleja has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e)(f) and (g) of the Act.
26The measure of the claimed loss of earning capacity requires the comparison of two matters. Firstly, the gross income the plaintiff is earning or capable of earning in suitable employment at the date of the hearing (“after injury” earnings). Secondly, the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred” (“without injury” earnings).
27Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd,[9] that s134AB of the Accident Compensation Act 1985 is, and I quote:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”
[9] [2009] VSCA 454 at paragraph [171]
28I am required to assess the plaintiff's capacity for employment as at the date of the hearing of this application.[10] I must also consider whether the plaintiff has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to her age, education, skills, work experience or other matters.[11]
[10] See s325(2)(e)(i) of the Act
[11] Richter v Driscoll (2016) 51 VR 95
29I have had regard to the relevant principles[12] in assessing whether Ms Calleja has retained a capacity to engage in suitable employment.
[12] See also Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
30As referred to recently by the Court of Appeal in Johns v Oaktech Pty Ltd,[13] the credit of the applicant is of great importance in serious injury applications. As stated earlier, there are no credit issues. I regard the plaintiff as being an honest and accurate witness, who regularly made concessions. I accept both her oral evidence and what is contained in her affidavits. This is important as it meets and disposes of the attack on the failure of the plaintiff to adduce evidence – such as from her husband – to corroborate her evidence.
[13] [2020] VSCA 10
31The appropriate analysis for the trial judge is that laid down by the Court of Appeal in A G Staff Pty Ltd v Filipowicz,[14] in conjunction with Altona Bus Lines & Anor v Lococo,[15] and is as follows: a trial judge should identify each injury, and then delineate the impairment consequences of each injury.
[14] (2012( 34 VR 309
[15] [2002] VSCA 159
32The consequences of injury for a particular worker begin with findings of fact. Assessment of whether those consequences, in terms of impairment, satisfy the narrative test is largely a question of impression and value judgment.
Background and medical history
33By way of background, the plaintiff is currently aged forty-eight years, but she was only forty-one at the time she ceased work. She has been married to her husband since 2014. Following the completion of Year 12, she completed a Bachelor of Teaching (Primary) and a Bachelor of Arts at Deakin University in 1997. Subject to a period of time of approximately two years following her mother's death and also whilst travelling in 2004 and 2005, when she worked in a community development role for an NGO, she has worked more or less continuously in her chosen profession since 1998 until she ceased working in March 2017.
34She commenced her employment with the defendant at Albany Rise Primary School, on or about 16 April 2012 on a permanent part-time basis as a classroom teacher and primary welfare officer. She was employed approximately 30.4 hours per week, working from Monday to Thursday. In the vernacular, she worked 0.8.
35Her role involved coordinating the school wellbeing programs, liaising with teachers, supporting students, and, in particular, supporting up to 70 high-needs students at a time. Five of these students under her care had had parents or parent’s partners commit suicide.
36Amongst other things, she deposed in her affidavit of 24 November 2022 that she had been threatened to be killed by students, witnessed students threatening to kill themselves, and was body-slammed by another student.
37At the outset of her employment, she alleges there was little clarity as to her role. Ms Calleja makes various allegations, which are for another day, in terms of the responsibility of an employer to an employee in her situation.
38In around 2016, she commenced receiving support for her work-related stress and anxiety, in the context of her attending a social worker, Ms Caroline Burrows, for support in relation to difficulties trying to conceive.
39She took stress leave for two weeks in June 2016. In October 2016, she consulted her general practitioner at the time, Dr Melanie Hattotuwa, to discuss her issues with stress and anxiety due to her employment.
40She continued to consult Dr Hattotuwa, eventually breaking down in late March 2017, upon which Dr Hattotuwa advised her to see a psychologist for ongoing management of her psychological condition and certified her unfit for any work. She has been unable to return to work since March 2017.
The injury
41The application under paragraph (c) is for a psychiatric injury, and counsel for the plaintiff relied upon the following injuries: chronic PTSD(CPTSD), Chronic Major Depressive Disorder with associated anxiety and features of traumatisation, and an Adjustment Disorder with Mixed Anxiety and Depression.
42In Georgopoulos v Silaforts Painting Pty Ltd & Ors,[16] the Court stated that the compensable injury does not need to be defined:
“As such, ‘an injury’ is a compendious term. Thus, if a worker has both his hands crushed at work he suffers ‘an injury’ within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or ‘injuries’ to particular bones, joints, tendons, ... .”
[16] (2012) 37 VR 232 at paragraph [51]
43When I pressed counsel for the State of Victoria, the issue as to diagnosis really distilled to whether or not the plaintiff suffered from chronic PTSD. In this regard, the plaintiff and defendant both referred to the reports of treating psychologist, Ms Hanna. I note the plaintiff’s general practitioners, including Dr Inam Khan, also made a similar diagnosis of chronic PTSD.
44In her report dated 13 November 2023, the plaintiff’s treating psychologist, Ms Hanna noted Ms Calleja was:
“… initially diagnosed by her psychiatrist (Dr Erin Redmond) as meeting DSM-5 criteria for a Major Depressive Disorder (MDD). MDD and CPTSD are common co-occurring conditions with numerous overlapping symptoms. Over the 5-year period in which I been treating Ms Calleja, she has experienced recurrent major depressive episodes. Ms Calleja's CPTSD diagnosis includes comorbid MDD, as specified in the DSM-5- TR.”[17]
[17] PCB 110
45She goes on to say:
“In my professional opinion and at the time of this report, Ms Calleja has no capacity to obtain or sustain regular work, in a voluntary or paid capacity.”
46Prior to the onset of her mental health conditions, Ms Calleja was employed as a primary school teacher and primary well-being officer. Her employment history indicates that she was well-able to achieve in both these roles until the accumulated work-related stress and exposure to repeated trauma resulted in a significantly deteriorated mental health profile of prominent CPTSD and MDD, culminating in Ms Calleja's breakdown in March 2017 and Ms Calleja being unable to re-enter the workforce since that time.[18]
[18] PCB 113
47I find, on the basis of the evidence as a whole, the injury is a psychiatric condition of either Major Depressive Disorder or an Adjustment Disorder, either of which the defendant accepts is compensable; and the impairment consequences relied upon by the plaintiff relate to that injury. I note the plaintiff's evidence was not challenged in this regard.
48I turn to the treatment the plaintiff has received. The evidence is as follows.
49Shortly after ceasing work in March 2017, Ms Calleja consulted a psychologist, Dr Cunningham, for opinion and management.
50As Dr Redmond notes, in response to the concerns raised by Dr Sheehan later that year, the plaintiff saw a psychologist and a naturopath. She has received ongoing treatment from her GP, a naturopath and two psychologists since then; and also, a consultant psychiatrist, being Dr Redmond, from around October 2017 until 2022.
51Ms Calleja saw Dr Redmond on at least four occasions, although evidence was that she thought it was significantly more than that. The evidence does not establish a precise number of consultations.
52She currently sees her GP regularly and a psychologist at least fortnightly. The plaintiff takes supplements in lieu of antidepressant medication, and from which she reports she derives benefit.
Permanence
53The State of Victoria submits the plaintiff's injuries are not stable and therefore not permanent on the basis that there are other treatment options available.
54This submission was based in part on a report dated 5 September 2023 of Associate Professor Doherty, which contains speculation and errors or misunderstanding on his part.
55Firstly, his opinion that Dr Justin Lewis’ report dated 11 July 2023 was afflicted by Dr Lewis expressing his opinions not having obtained a complete history from the plaintiff. That is patently wrong.
56Secondly, as the extract set out above seems to make apparent, Ms Hanna's diagnosis of CPTSD is in conjunction with comorbidity for Major Depression and I am unable to find, on the basis of the evidence before me, that the plaintiff has not been treated appropriately for that co-extensive condition. That underpins much of the expression of opinion by Associate Professor Doherty and in turn the submission of the State of Victoria.
57In final submissions, the defendant criticised Ms Hanna essentially as having historically been an advocate for Ms Calleja, having supported her in workplace meetings. Ms Hanna is employed by the defendant as a school psychologist. Despite Ms Hanna being available for cross-examination, this was not put to Ms Hanna, and nor was it put to her that she was treating the plaintiff for the wrong psychiatric condition.
58I accept the plaintiff's evidence that she has done all that has been asked of her by treating doctors since her injury. I reject the submission she has not engaged in reasonable efforts to rehabilitate herself or obtain appropriate treatment.
59I find that the plaintiff has availed herself of appropriate treatment. She was unequivocal in indicating that she has been, and remains, willing to undergo ongoing treatment. No treating doctor expresses the view that her current treatment is inappropriate.
60The various diagnoses of the plaintiff’s treating doctors are as follows:
· Dr Paul Cartwright, in his report of 21 August 2019 – CPTSD, chronic Major Depression and a Generalised Anxiety Disorder.[19]
· Dr Khan, including in his most recent report of 10 October 2023 – Major Depression and CPTSD.[20]
· Ms Hanna, in reports of 5 August 2019, 18 January 2023 and 13 November 2023 – CPTSD with comorbid Major Depressive Disorder.[21]
· Dr Chris Cunningham, psychologist, in his report dated 17 October 2017 – Adjustment Disorder with Mixed Anxiety and Depressed Mood.[22]
· The treating psychiatrist, Dr Erin Redmond, in her report of 24 November 2017 – a Major Depressive Disorder with anxiety and features of traumatisation. In her most recent report of 8 February 2021, Dr Edmond diagnosed Ms Calleja as suffering an Adjustment Disorder with Mixed Anxiety and Depression.[23]
[19] PCB 41
[20] PCB 45
[21] PCB 48, 56, 110
[22] PCB 62
[23] PCB 66, 76
61The consultant medico-legal psychiatrist, Dr Lewis, in his report of 17 July 2023, diagnosed a partially remitted Chronic Major Depressive Disorder.[24]
[24] PCB 94
62Dr Sheehan, in his reports, following numerous examinations over two years, diagnosed an unresolved work-related Major Depressive Disorder with anxiety and features of traumatisation, and found that she was incapacitated for all forms of work.
63In terms of permanence, the test to be applied is whether the injury would persist and there will be no significant improvement over time.[25]
[25] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [19]
64Based upon the diagnoses referred to above, the relevant expressions of opinion are as follows.
65Dr Khan does not recommend any change to the plaintiff's current medical treatment. The frequency of treatment is appropriate, as is ongoing psychological therapies; there is no further additional treatment required.[26]
[26] PCB 45
66Ms Hanna is of the view the plaintiff is likely to suffer ongoing trauma-based symptoms for years to come and will likely require at least some level of ongoing psychological intervention, potentially throughout her lifetime.[27]
[27] PCB 109-111
67Dr Redmond’s opinion is set out above. In her view, the plaintiff requires ongoing psychological treatment, but Dr Redmond makes no reference to the need for medication as at February 2021.[28]
[28] PCB 75-77
68Dr Lewis says the prognosis remains guarded and unfavourable. This prognosis “has potentially been undermined by Ms Calleja’s reticence to consider psychotropic treatment”.[29] The evidence rises no higher than that. In his opinion, she requires long-term psychological therapy.
[29] PCB 94
69Consultant psychiatrist, Dr Stephen Stern, expressed the view in July 2021 that the psychiatric condition was stable.[30] Whilst this opinion was in the context of an impairment assessment, it reflects that of Dr Redmond, the treating psychiatrist.
[30] PCB 43
70Seven years have passed since the plaintiff ceased work in March 2017. The plaintiff continues to have ongoing psychological treatment and takes a “natural” supplement called Gaba to manage her psychological symptoms.
71The preponderance of medical opinion is that the plaintiff's injury will continue, and that she will continue to require ongoing medical treatment and I so find.
72That the plaintiff is not taking antidepressant medication does not necessarily undermine her claim.[31]
[31] Grace v Elmasri [2009] VSCA 111, at paragraph [131]
73I accept Ms Pilipasidis’ submission that the plaintiff's refusal or reticence to take antidepressant medication is reasonable.[32] Her reasons for not taking antidepressant medication included her mother having taken them in the context of a potential overdose, she did not feel she had enough evidence as to the utility, she had seen how the medication can affect other people, and she was scared of the medication and what it might do to her brain.
[32] Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, at paragraph [12]
74Her current treaters do not recommend antidepressant medication. Associate Professor Doherty does not support the need for medication; he states clearly that it is not likely that Ms Calleja’s symptoms will respond significantly to antidepressant medication.[33] This is consistent with the opinion of Dr Redmond, who says that whilst antidepressant medication would have been useful to have at the time Ms Calleja ceased work, at first interview in November 2017 she “did not feel that anti-depressant medication was essential”.[34]
[33] DCB 19
[34] PCB 66
75I accept the plaintiff's submission that the need for ongoing treatment is not inconsistent with a permanent condition. In fact, it is a factor in assessing the severity of a psychological condition.
76The overwhelming evidence of her treating doctors and examining doctors is that her condition after seven years is permanent, including incapacity for her previous employment. As set out below, the opinions as to the extent of her incapacity for all forms of employment vary.
Consequences of the injury
77Ms Calleja has not worked in her pre-injury employment, or at all since March 2017, as a consequence of her psychiatric injury.
78All of the treating doctors, and those who examined her for the purpose of this proceeding, including Associate Professor Doherty, accept that she cannot return to her pre-injury employment, and the preponderance of the medical evidence is to the effect that she is also totally and permanently incapacitated for all forms of employment.
79I find there is no employment for which the plaintiff is suitable when regard is had to the definition of “suitable employment”.
80In that regard, I rely upon the following opinions:
(a) the most recent treating doctor, Dr Khan, who finds that Ms Calleja cannot return to work in her pre-injury duties and hours, cannot return to any educational, modified pre-injury duties and/or hours or alternative duties and/or hours. In his opinion, she is not fit for Transferable Skills Analysis, and is not fit to participate in retraining;[35]
(b) Ms Hanna’s opinion that Ms Calleja has no capacity to sustain regular work in voluntary or paid employment.[36] Her prognosis is poor: despite six years of treatment, her symptoms remain chronic. She will be unlikely to recover to the point where she could resume her career as a teacher or well-being officer or to work in a setting that is reminiscent of a school environment. Further, should the plaintiff recover sufficiently to obtain employment, her capacity for economic participation is, and will remain, substantially below what it was prior to her injuries. Presently, she has no capacity to obtain or sustain regular work in a voluntary or paid capacity.[37]
(c) Dr Lewis says her prognosis remains guarded and unfavourable. She will be completely incapacitated for both her pre-injury employment and all alternative employment.[38] Dr Lewis’ opinion did not change when he re-examined Ms Calleja on 8 October 2023.[39]
[35] PCB 45
[36] Report of 18 January 2023: PCB 54
[37] PCB 109
[38] Report of 11 July 2023: PCB 80
[39] PCB 80, 97
81The defendant has provided two vocational reports. The first a 130-week report dated 8 March 2019 and a second a labour market analysis dated 12 September 2023.
82Dr Sheehan commented on the 130-week report in his report of 6 October 2019. He considered the five jobs,[40] and expressed the opinion that unless there had been a change in the plaintiff's mental state, then it was probable Ms Calleja would remain incapacitated for all work.
[40] Research assistant; administration assistant; stable hand; dog trainer and library cataloguer
83Dr Lewis also considered the jobs suggested in the report. In his opinion, she did not have capacity for that work.
84In relation to the second report, Dr Khan considered that the plaintiff is not fit for transferable skills analysis or fit for retraining or job seeking services.
85Associate Professor Doherty considered the jobs and considered the plaintiff had capacity for halftime hours. In his opinion, Ms Calleja will have to avoid potentially stressful jobs, including her pre-injury employment.[41]
[41] DCB 14, 30
86I find that Associate Professor Doherty's opinion for residual capacity is against the weight of the medical evidence, in particular, the treating doctors, Dr Khan and Ms Hanna, who have attended upon the plaintiff on numerous occasions.
87Even accepting Associate Professor Doherty's opinion, the plaintiff still satisfies the requirement of establishing a greater than 40 per cent loss of earning capacity.
88It is a matter of judgment of the Court as to how many hours the plaintiff is fit to work in the context of an assessment required to apply a gateway provision. I must make a determination as to incapacity after the consideration of the whole of the evidence.[42]
[42] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, at paragraph [89]
89Applying the “real-world” approach to my assessment of the plaintiff's employment capacity,[43] I find that she satisfies the statutory test.
[43] Richter v Driscoll (supra)
90It is not necessary to make a discrete comparison of “with” and “without” injury earnings in the context of the finding of total incapacity; or indeed the opinion of Associate Professor Doherty that she has retained only 50 per cent capacity for suitable employment.
91She has been certified as unfit for all forms of employment continuously since 2017 and I reject the submission that she ought to have made more attempts to obtain employment or re-train.
92On the evidence as a whole, I am satisfied the plaintiff suffers either a Major Depressive Disorder or an Adjustment Disorder, with Anxiety and Depression. Her condition is permanent and has resulted in a total incapacity for all forms of employment.
93Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof in terms of establishing a greater than 40 per cent loss of earning capacity.
94I also find that the pain and suffering consequences to Ms Calleja are severe, notwithstanding she has not been hospitalised.
95The plaintiff gave sincere and compelling evidence about how much she enjoyed teaching, and how upset she was that she is unable to return to her chosen profession.
96In my view, that loss of capacity alone constitutes a “severe” consequence to her, and the narrative test is satisfied.
97The additional consequences of the plaintiff’s psychiatric injury I rely upon are set out in detail in the medical reports and her affidavits. She was not challenged on these consequences. They are generally consistent and include:
(a) mood fluctuations. She is regularly tearful and easily short tempered;
(b) regular panic attacks;
(c) sleep regularly disrupted. Ms Calleja occasionally wakes from nightmares in relation to things that occurred at work, and often wake up tired and drained;
(d) since her injury, she has become socially isolated, and avoids crowded environments unless with her husband;
(e) low energy level most days;
(f) difficulty going to the supermarket and with home administration;
(g) concentration and memory are compromised;
(h) weight gain;
(i) bad days during which she cannot leave the house, struggles to shower and dress, cancels all appointments, struggles to finish sentences, is teary and has trouble making decisions;
(j) necessity for daily natural medication; and
(k) necessity for ongoing treatment from a psychologist and her general practitioner.
98I find that her relative youth – Ms Calleja was forty-one at the date she ceased work – has increased the seriousness of her injury as she will bear that injury, and its consequences for the rest of her life.[44]
[44] See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Conclusion
99Leave is granted to the plaintiff to commence proceedings for damages for both pain and suffering and loss of earnings in respect of injuries suffered in the course of her employment from 2012 to 2017.
100I will hear the parties as to final orders including costs.
- - -
0
17
0