Cameron Bishop v Victorian Workcover Authority
[2015] VMC 34
•16 September 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
No.E14123457
| CAMERON BISHOP | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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MAGISTRATE: | Mr J O'Brien |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16,17,20,21 July 2015 |
DATE OF DECISION: | 16 September 2015 |
CASE MAY BE CITED AS: | Cameron Bishop v Victorian Workcover Authority |
MEDIUM NEUTRAL CITATION: [2015] VMC034
REASONS FOR DECISION
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Catchwords:
s.98C/E Claim - Rejection- Heart Attack Injury - Accepted Stress Claim - Time Difference - Causation - Reasons for decision
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Podger | |
| For the Defendant | Mr Sevedra Mr McKenzie |
HIS HONOUR:
1 All right. This is an application for the declaration that the plaintiff is entitled to compensation to be assessed pursuant to ss.98C and E of the Accident Compensation Act for a heart condition suffered by him in 2011.
2 The plaintiff suffered a large anterolateral myocardial infarction whilst skiing at Falls Creek on 2 July 2011. His case is put on the basis that his heart condition is consequent upon a stress condition suffered by him arising out of his employment in 2007 and 2008. In relation to that stress condition he made a claim for weekly payments of compensation and medical and like expenses dated 16 December 2009. This claim was accepted and he was paid a limited period of weekly payments and some medical and like expenses.
3 On 14 June 2013 the plaintiff made a claim for impairment benefits pursuant to ss.98C and E for both his psychological condition and his heart condition. By a notice dated 28 November 2013 the WorkCover Authority’s claims agent QBE accepted liability for the psychological condition but not for the heart condition. The plaintiff now brings this proceeding seeking a declaration of liability for the heart condition.
4 This proceeding was issued on 11 December 2014. On 9 June 2015 the plaintiff sought to amend the statement of claim to add a dispute concerning QBE's methodology in determining the plaintiff's whole person impairment assessment in relation to the psychiatric claim and that amendment was done by adding paragraph 14A to the statement of claim and sub paragraphs F and G to the prayer for relief. At the commencement of the hearing of this action I granted leave to the plaintiff to withdraw this part of the claim and to further amend the statement of claim by deleting paragraphs 14A and sub paragraphs F and G from the prayer for relief.
5 The plaintiff gave evidence that he was born on 22 September 1973 and is now therefore aged 42 years. He completed high school in 1991 and commenced first year engineering but failed that year and then sold computers for two years. He was interested in drawing and painting and entered the arts school at RMIT where he studied from 1995 to 1997. He completed an Honours degree in fine arts in 1998 and a masters at Monash University in 2001. In 2003 he and his wife moved to New Zealand where he spent a year at Otago University and supplemented his income by working in the disabilities sector for the Department of Human Services in New Zealand.
6 Upon his return to Victoria he took up employment with the Department of Human Services here as a disability support worker on a casual basis working various shifts and hours and at the same time was also doing similar casual work for a private disability services provider named Scope. All up he was working some 50 hours a week at residential facilities in the southern metropolitan region from St Kilda to Dandenong and Frankston and in that area.
7 One of the facilities where he had commenced working in 2004 for the Department of Human Services was a respite facility in Bride Avenue, Hampton Park which he told me occupied about half of his workload. He told me that his shifts included sleep over shifts of 16 hours and Sunday shifts of 11 hours. There were six bedrooms and two bathrooms in the facility. The patients or clients had a range of disabilities ranging from mild autism to severe spasticity. Ten to 15 per cent of the clients were child and others ranged up to 50 plus year olds. Forty to 50 per cent suffered physical disabilities and others suffered cerebral palsy, acquired brain injuries and a range of other problems. His duties included feeding, washing, showering and toileting.
8 In this facility one of the clients for whom he had to care was a 33 year old female who he named but I shall simply refer to her as the client. She had severe cerebral palsy and she was severely impaired both intellectually and physically. She could not move her arms or legs and slings were required to lift her. She could barely speak and communication with her was essentially non verbal. She could do nothing for herself and she certainly needed assistance with toileting.
9 Between 2004 and 2007 the plaintiff believed he had worked with her about 20 times. In August 2007 the plaintiff had done a sleep over shift. On the Sunday afternoon he had asked a female co-worker to shower the client but she did not. On the Monday morning the client was supposed to go on a day placement on a bus at 8 am. So the plaintiff had to shower her on his own. He showered her alone as there was no one else there at the facility to help. He got her her breakfast, packed her bags and got her on the bus.
10 At 3 pm that afternoon the plaintiff received a phone call from a Gary Young, the manager of DHS southern region concerning a complaint which had been made against the plaintiff and informing him that he was cancelling all of his upcoming shifts. The next the plaintiff heard was another phone call from Gary Young three days later saying that police may be involved.
11 On the Thursday of that week he was phoned by Detective Ray Ross of the Cranbourne Criminal Investigation Unit asking to meet him at Boronia Police Station on Friday Afternoon. That was 18 August 2007. At that meeting the plaintiff said that the interview took three hours and that Detective Ross, and I quote the plaintiff, "Led me through a hideous narrative." He said that all kinds of serious and monstrous allegations were put to him, one of which was that he had raped the client whilst she was in the sling presumably for the purposes of bathing. He said that the police went to his home and took some blue underwear. He said thereafter he had a strange ongoing relationship with Detective Ross on and off. He said that he was frightened to the core but his employer had no further contact with him until he contacted the Department of Human Services' employee support program for counselling.
12 He was referred to a counsellor name Andrea Taylor at an organisation known ResolutionsRTK and had a number of consultations with her over a period of time usually after a bad conversation with the police or with the Department of Human Services.
13
The plaintiff said he consulted his GP a
Dr Somasunderam at the Greater Knox family practice which was about five minutes from where he was living at a home that he had purchased in The Basin and he was placed on Zoloft anti-depressant medication for five or six months. He said his sense of time was vague concerning events at that time. At this point questioning in evidence-in-chief skipped all over the place but doing the best I can I shall endeavour to describe the plaintiff's narrative in chronological order.
14 After he was stood down by the Department of Human Services and with no contact with them for some time the plaintiff was offered some alternative administrative duties with them two days per week for 16 hours. That is totalling 16 hours at Dandenong in September and October 2007. In late 2007 he was performing sessional teaching one day per week at the Waurn Ponds campus of Deakin University and between 2005 and 2010 he had been working on a thesis in fine art history. As best I can understand he had various absences due to what he described as "deep distress" regarding the allegations against him and the associated uncertainty.
15 Altogether he did about five months administrative work with the Department of Human Services and continued his sessional teaching into 2008. Then finally in May 2008 he was charged with one count of rape followed by a further count being laid in September 2008. At a contested committal hearing in November 2008 the charges were dismissed but the matter still hung over his head until May 2009 when he was advised by the Office of Public Prosecutions that there would be no direct presentment. He said this resulted in him feeling vindicated.
16 However the whole saga had had a substantial impact on his life, his domestic and financial circumstances and his health. He was forced to sell his home in The Basin in January 2009 to pay his legal fees and thereafter he had to move house six or seven times including moves to Oakleigh, Anglesea, Brunswick and Kingsville where he now lives. After he sold his home in The Basin the plaintiff moved to Oakleigh and began consulting a GP at the Oakleigh Family Medical centre Dr Raynor as well as other doctors at that clinic and that was from about June 2009.
17 Dr Raynor diagnosed that the plaintiff was suffering from post traumatic stress disorder with generalised anxiety and depression. He referred the plaintiff to a psychologist at the same clinic, a Dr Rosemary Starr for psychological counselling. The plaintiff saw her from late 2009 to early 2011. At some point in time during this period the plaintiff moved to Anglesea but continued to travel to Oakleigh to consult Rosemary Starr because he had developed a rapport with her and had confidence in her. After she retired he explained that he did not see any other psychologist because he did not want to tell his story to a new person.
18 Dr Raynor also referred to him a psychiatrist Professor Keks who saw him on three occasions only between February 2010 and May 2010 and diagnosed major depression, alcohol abuse and anxiety. He prescribed medication for the plaintiff.
19 In early 2011 the plaintiff moved to Brunswick and gave evidence that he started seeing a Dr Hubert van Doorn. There are no reports or notes of Dr Van Doorn and as best I can ascertain from the evidence the plaintiff seems to have ceased general practitioner attendance and medication for his depression and anxiety in late 2010 or early 2011 and, as already stated, ceased to see Rosemary Starr when she retired early in 2011.
20 At about the same time in February 2011 he commenced substantial employment for four days per week on an 11 month contract with Deakin University in Geelong as a lecturer in fine art. Now I have gone into great detail about the circumstances of his stress because that brings us to the subject matter of this claim.
21 On 2 July 2011 the plaintiff and some friends took a day trip to Falls Creek to go skiing. The plaintiff commenced skiing on that day at about 10.30 am and had been skiing blue and mainly black runs being the more difficult ones. He agreed that the skiing involved significant physical exertion and he was, to use his own words, "working hard." He stated that he reached the bottom of a run at about 12.30 or 1 o'clock and felt unusually fatigued. He got on a chair lift to go back to the top and felt nauseas. Because he felt unwell he went looking for his companions.
22 He felt pain down both arms and collapsed having suffered a large myocardial infarction or, as he described it, a massive heart attack. He was assisted by the ski patrol and airlifted to the Alfred Hospital where he remained an inpatient for a week and came under the care of cardiologist Dr James Shaw whom he now sees every three months for review.
23 He underwent various tests and had a stent inserted and later in 2013 he had a defibrillator fitted. Since his heart attack he has been hospitalised about six times for a couple of days each time and once for about a week. He still has symptoms including strange sensations in the chest, nocturnal breathlessness and symptoms of heart failure. His exercise tolerance is not high and he now has difficulty jogging and playing tennis due to breathlessness. He has continued with his employment at Deakin University.
24 As stated at the outset the plaintiff claims that his heart attack was significantly contributed to by the stress which followed the work injury discussed earlier. The plaintiff's argument in fact goes further and his case is put on the basis that there were really no other significant risk factors to which his heart attack could be attributed. The defendant's cross-examination of the plaintiff was directed towards these matters and to the nature, severity and duration of the stress and the treatment or lack of treatment involved, the time between the stress condition and the heart attack, recovery from the stress condition including return to work and normal activities and other risk factors such as smoking and family history.
25 Dealing with the other risk factors first the plaintiff gave evidence that he was a social smoker in his 20s and early 30s and that after the events of August 2007 his smoking increased two or three fold in the first three months and then escalated to a packet of cigarettes a week until he ceased smoking after the committal hearing in 2008.
26 In relation to family history he stated that his father had suffered atrial fibrillation in his mid-60s, his grandmother had three heart attacks in her 70s and an uncle had extremely high blood pressure and died of an enlarged heart.
27 He was also cross-examined about his drinking habits which he agreed had increased after August 2007. It seemed to me from various clinical notes that it seemed to become a problem which slowly abated when he went back to work. Otherwise in the case there was really no serious attempt to link his drinking to his heart attack and I discount this as a factor.
28 The plaintiff was also cross-examined about his treatment for his stress condition, the suggestion being that he had recovered from that condition by late 2010 and that it had no bearing on his heart attack. The plaintiff agreed that his last certificate from Dr Raynor was dated 8 September 2010 and that he had ceased taking Zoloft medication in about August 2010. He stated that he saw a doctor in Anglesea whose name he could not remember and thought that he may have got two or three more certificates in mid to late 2010 but agreed with the suggestion that if the last certificate received by QBE was that of 8 September 2010 that was probably correct.
29 He agreed that he last saw Rosemary Starr on 17 February 2011 and that the second last attendance was on 26 October 2010. The suggestion by the defendant was that by late 2010 his stress had resolved and that his life had returned to normal. He gave evidence that he played vigorous tennis once or twice a month but he disagreed that he skied three or four times a year as noted in the Alfred Hospital notes and stated that he only skied once or twice a year because he could not afford more and here I am referring to the period prior to his heart attack.
30 He was cross-examined at length about his curriculum vitae which the defendant had downloaded from his website. This included extensive entries relating to his employment at Deakin University as a University Examiner and on an editorial board; scholarships, grants and awards that he had received; publications, conference and essays; exhibition and selected commentaries.
31 The two and half page document contained numerous entries relating to the period after August 2007. The thrust of the cross-examination was directed at establishing that the plaintiff had returned to a busy working life at the latest by the end of 2010.
32 However having taken into account the plaintiff's answers I took the view that from early 2011 when he returned to work at Deakin University his work was relatively normal rather than extremely busy. The plaintiff stated that a lot of the entries involved lifting parts out of his thesis upon which he had been working since 2005 and publishing those as part of his publications and essays set out in his CV and the other activities were short, one off activities in collaboration with others in terms of the exhibitions and the like mentioned in his CV.
33 Like so many CVs I took the view that the plaintiff was maximising his achievements in order to be seen in the best possible light. Drawing all these threads together Mr McKenzie for the defendant put it to the plaintiff that by 2000 and again - by 2010 he was again functioning at a high level in his chosen profession. The plaintiff stated that all it did was to indicate his determination and that his work at Deakin removed him geographically from the stress situation and took his mind off things. He stated that his attendance on Rosemary Starr did not necessarily correlate with periods of anxiety and depression and he absolutely refuted the suggestion that he was not still depressed immediately before the heart attack.
34 This brings us to the key issue in the case which is succinctly summed up by Dr Jeremy Hammond in the second last paragraph of his answer to specific question No.1 on p.5 of his report of 1 July 2015 which is Exhibit 8 where he states, "If your inquiry reveals that Mr Bishop did suffer from depression of moderate to severe degree between his examination by Professor Keks on 19 May 2010 and up to the time of his myocardial infarction I believe it is reasonable to accept that depression may have been a significant contributing factor to his heart attack occurring."
35 In evidence Dr Hammond agreed with my observation that he and I had been involved in this area of medico-legal work for over 30 years and that back in the early part of that era his opinion between stress and heart attack would have been entirely the opposite. He stated that since that time there had been numerous studies and papers in relation to the issue leading to a lot more knowledge of the area and a change in thinking.
36 This brings me to the medical evidence in this case. I heard viva voce evidence from Rita Lapidus a psychologist who replaced Rosemary Starr in Oakley, the treating cardiologist Dr Shaw and medico-legal consultants doctors Hamer, Jelinek and Hammond. Numerous reports were tendered in evidence by consent. In that evidence numerous studies and papers were referred to and examined in some detail in the course of evidence and tendered in evidence. These are firstly a precursor study of 1998 which was Exhibit H; secondly a European Heat Journal study of 2006 which was Exhibit J; thirdly a national heart foundation paper of 20 May 2013 which was Exhibit 9 and fourthly Professor Hare's paper for the European Heart Journal which was Exhibit 10 and there was also a paper appended to Dr Jelinek's report.
37 It is convenient first of all to deal with the evidence relating to stress. Apart from the notes of Dr Raynor and his clinic and Rosemary Starr whose notes were very hard to read and were obviously for her benefit only, all that can be said of them was that they were treating the plaintiff for stress up to September 2010 and February 2011 respectively.
38 Ms Lapidus gave viva voce evidence and her equally hard to read notes were tendered in evidence as Exhibit 7. A report of hers dated 16 October 2013 was also tendered, Exhibit F. In that report and in her evidence Ms Lapidus stated that she first saw the plaintiff in August 2011 which was of course after the heart attack but at the second page of her report she refers to a questionnaire which she completed and returned to QBE in which she stated that her diagnosis was chronic post traumatic stress disorder as a result of the trauma that the plaintiff had experienced whilst working with the Department of Human Services including recurrent and intrusive recollections of the event.
39 She stated that these symptoms had persisted over time and in her viva voce evidence she said, "A patient disengaging from treatment does not equal recovery." The completed questionnaire formed part of Exhibit F.
40 Reports of Dr Gregory White psychiatrist of 18 January 2010 was tendered. Exhibit P, Dr David Stickels psychologist of 11 September 2013 Exhibit Q and Professor Nicholas Keks psychiatrist dated 18 October 2013 Exhibit M. In my view they relate to attendances and opinions too early in time to be of assistance in relation to the key issue under consideration. However a detailed report of Dr Richard Prytula of 31 October 2013 following a medico-legal examination for QBE is most helpful. He diagnosed the plaintiff as suffered from a major depressive disorder with a generalised anxiety disorder. He stated: "The major component contributing to his impairment is the workplace issue. However the heart problem which arose subsequently has also contributed to some extent." He assessed a whole person impairment of 30 per cent with five per cent being attributable to the heart problem. Dr Robert Athey consultant psychiatrist who performed a medico-legal examination and reported on 6 May 2015 to the plaintiff's solicitors states that the plaintiff is suffering from a generalised anxiety disorder which relates to his employment with the Department of Human Services.
41 There is nothing in the evidence of Ms Lapidus, and in particular her statement in the witness box that a patient disengaging from treatment does not equal recovery, or the evidence of Dr Prytula or Athey to suggest that there was any remission or recovery in relation to the plaintiff's stress condition between late 2010 and July 2011.
42 Evidence was given by four cardiologists and reports were tendered from all of them. I heard from the treating cardiologist Dr James Shaw and his report was tendered Exhibit K and I heard from Dr Michael Jelinek, his report Exhibit G and Dr Angas Hamer his report Exhibit E. I have already referred to Dr Jeremy Hammond. In relation to the key issue in this case a common thread runs through their evidence and that is that a depressive illness is a significant risk factor for the occurrence of myocardial infarction. This somewhat surprised me because it was my experience some years ago when acting in this type of case that the then knowledge suggested that the opposite was the case. Indeed Dr Hammond would never have accepted that stress was a risk factor and as I have said I made mention of this when he was giving his evidence and he agreed with me. But all four doctors referred to the recent studies having altered the knowledge in this area and those studies were discussed in detail as they gave their evidence.
43 The treating cardiologist Dr James Shaw gave evidence of the risk factors which may cause myocardial infarction including smoking, diabetes, hyperlipidemia, high blood pressure and family history. In this case he regarded the plaintiff's smoking as a low risk factor and he drew a distinction between smoking one or two cigarettes a day and a packet a day over 20 or 30 years. Similarly he dismissed the family history as a risk factor for being too remote. He said that he would only look at family history as far as parents and siblings but not beyond.
44 When asked about the vigorous activity of skiing he agreed that is may have precipitated the myocardial infarction, the final event as he called it, but it would not have caused the underlying condition or coronary atherosclerosis which would have been present for a long time. He stated it was very unusual for a 37 year old man to have a myocardial infarction. He described the risk factor profile as unusual and stated that it did not fit the norm. Therefore depression must be taken into account as a risk factor.
45 Dr Angas Hamer gave evidence that in his opinion, "There is a connection between the worker's injury on 13 August 2007 resulting in a major depressive disorder and the occurrence of the myocardial infarction in 2011 in that there is widespread literature now available to indicate that a severe depressive illness requiring psychiatric treatment and or anti-depressive medication is a significant risk factor for the occurrence of myocardial infarction over and above the presence or absence of other conventional risk factors."
46 He went so far as to say that where people are clinically depressed this may lead - and I emphasise this, "some years later" to the risk of a cardiac event even if the person had substantially recovered from the depression by the time of the cardiac event. He said that the problem was the effect on the cardiovascular system at the time of the insult, being the depressive illness and I quote again, "You cannot eliminate the legacy of the depression."
47 He said, as did the other doctors, that the skiing would be the immediate, and I emphasise the word immediate, cause of the heart attack being plaque rupture but you had to look for a cause of the plaque forming in the first place. Depression has an effect on the formation of atheroma or accelerates its increase. Regardless of what happens in the intervening time between the depression and the myocardial infarction there is a 1.5 to 2 times chance of the original depression causing it. He also discounted family history as a risk factor on the basis that the relevant family members were older than 60 years when they developed cardiac problems and he stated that the history of smoking was weak and not the same as smoking at the time of the myocardial infarction.
48 Professor Michael Jelinek gave evidence and his report was tendered. He had been provided with a number of other reports already referred to and he accepted the evidence in relation to the 2007 stress claim that the work events at that time led to the plaintiff suffering post traumatic stress disorder and major depression and that major depression is a significant cause of heart attack.
49 He stated that a person who is depressed is twice as likely to develop heart attack than anyone else. He discussed the various risk factors which have already been referred to and also was of the opinion that the skiing was the immediate cause of the myocardial infarction as were the other doctors. He covered the other potential risk factors in this case but stated that they were insignificant. Much of his evidence was taken up with discussion of the various papers referred to.
50 Dr Jeremy Hammond also gave evidence and his two reports were tendered. I have already referred to his opinion concerning the connection between stress and heart attack. In relation to the passage of his report which I have already quoted he said in evidence that you would have to look at whether the depression was severe or mild, the circumstances of the individual and the temporal nexus saying that he would allow a 12 month period in this regard. That is the temporal nexus.
51 His comments concerning the other risk factors were similar to the other doctors', particularly concerning the family history and history of smoking. Much of his evidence was similarly taken up with discussion of the various studies. As I have indicated, various risk factors were identified but the only ones which were referred to in this case in any detail were the family history, the smoking and the stress. Thus I make the following findings.
52 1) As a result of a work incident on 13 August 2007 and subsequent investigations the plaintiff suffered a compensable stress reaction being described as post traumatic stress disorder with major depression and generalised anxiety. 2) The plaintiff suffered a severe myocardial infarction while skiing at Falls Creek on 7 July 2011. 3) The immediate cause of the myocardial infarction was the physical exertion of the skiing on 7 July 2011 but not the underlying cause as discussed. 4) And again I emphasise to my surprise as mentioned above there was evidence from 4 cardiologists that stress is now regarded as a significant risk factor in myocardial infarction contrary to the position many years ago and so I find that stress is indeed a significant contributing factor in myocardial infarction. 5) I find on the basis of the medical evidence that the plaintiff's stress following the compensable events of 2007 is a significant contributing factor to his myocardial infarction and I take into account the plaintiff's own evidence, Ms Lapidus' evidence that disengaging from treatment does not equal recovery, the fact that he was on medication until September 2010 or thereabouts and was being certified for unfitness for work by the general practitioner until then and ceased seeing Ms Starr in February 2011 and Dr Hammond's time frame for a temporal nexus between stress and myocardial infarction of up to 12 months. Hence I find that the plaintiff's myocardial infarction of 7 July 2011 occurred as a result of compensable injury suffered by the plaintiff on 13 August 2007 and that the defendant is liable to pay compensation in relation to the heart attack.
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