Capitanio v Mainfreight Distribution Pty Ltd

[2021] VCC 1149

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-05528

RINA BRUNA CAPITANIO	Plaintiff
v
MAINFREIGHT DISTRIBUTION PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 August 2021
DATE OF JUDGMENT:	20 August 2021
CASE MAY BE CITED AS:	Capitanio v Mainfreight Distribution Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1149

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – psychiatric injury – pain and suffering – loss of earning capacity – workplace injury

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013; Civil Procedure Act 2010

Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148; Mobilio v Balliotis [1998] 3 VR 833; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104; Woolworths Ltd v Warfe [2013] VSCA 22; Veljanovska v Verduci (2014) 42 VR 222; Haidar v Transport Accident Commission [2016] VSCA 182; Fenton v AIA Australia Ltd [2017] VSCA 331; Rowe v Transport Accident Commission [2017] VSCA 377; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Yilmaz v Specialty Fashion Group Limited [2019] VSCA 100; Johns v Oaktech Pty Ltd  [2020] VSCA 10; Apps v Victorian WorkCover Authority [2020] VSCA 21; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Humphries & Anor v Poljak [1992] 2 VR 129

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie QC with Mr L Perilli	Slater & Gordon Lawyers
For the Defendant	Ms S Manova with Ms J E Clark	Hall & Wilcox

HER HONOUR:

1The plaintiff, Ms Capitanio, is a thirty-two-year-old woman. She makes a claim pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for a serious injury certificate for pain and suffering damages and for loss of earning capacity arising from psychiatric injuries she sustained during the course of her employment with the defendant, Mainfreight Distribution Pty Ltd (“Mainfreight”).

2The legal principles are well known and are not in dispute in this case. 

3The issues in this case are:

(a)   whether Ms Capitanio had any and what pre-existing psychiatric injury;

(b)   whether Ms Capitanio sustained an injury at Mainfreight that was a severe injury, or, if she had a pre-existing injury, was it a severe aggravation of that pre-existing injury; and

(c)   whether, as a result of her injury, Ms Capitanio has a loss of earning capacity that meets the relevant threshold.

Background

4Ms Capitanio was born in 1989 and completed Year 12.  After school, she completed an Advanced Diploma of Hospitality and Business Management at William Angliss TAFE, which she finished in 2008.  Whilst studying, she worked in the hospitality sector, including at the Grand Hyatt hotel and Peter Rowland Catering.

5After completing her diploma, she worked for a few years in a pastry café in Thornbury.  She was interested in cake decorating and did some short courses.  However, she wanted better career opportunities and decided on a new career path in the beauty industry.  She studied a Certificate in Beauty Therapy at The Academy and in May 2014, began work as a “Level 3” beauty therapist for a waxing and tanning salon, Brazilian Butterfly.

6In June 2014, she was involved in a motor vehicle accident in which she injured her left shoulder.  The injuries were sufficiently severe to require rotator cuff surgery.  Ongoing problems with her shoulder meant that she could no longer perform the highly physical activities required in waxing and tanning.  She continued to work part time as a receptionist at Brazilian Butterfly but eventually  left that job in August 2014.

7In 2015, she went through a period of depression.  She says this was around personal issues involving her boyfriend, who had been charged with drug offences.  She was unable to confide in her family about this issue and this put a significant strain on her.  In her affidavit dated 11 August 2020, she describes this as “depression” but says that “we supported each other through the difficult times, and things started to get better.  We were feeling positive about the future and enjoying our time together.”

8In 2016, she started working in hospitality once again, as a barista at the Gateway Diner in Epping.  She struck up a good rapport with a general manager at Mainfreight.  He suggested she apply for a job at Mainfreight, which she did, and was offered a position as a customer service representative.  She commenced working at Mainfreight in July 2017.

9Ms Capitanio says her role was to keep track of freight orders and deal with customer enquiries.  She worked with four other customer service representatives, as well as other workers.  The work required the staff to work together as a team.  Ms Capitanio says one member of the team, a woman named Danielle (“Dani”), immediately appeared intolerant of her.

10Ms Capitanio says throughout the course of her employment, Dani subjected her to unreasonable behaviour including making snide comments about her work and repeated comments about her ability to do her work, making demeaning and insulting comments, negatively commenting on her work ethic and “picking on” her constantly.

11Ms Capitanio says that, as a result of this behaviour, she began to get severe migraines and feel anxious on the way to and from work.  She says she was so nervous about going to work that she would sometimes vomit and that this was something she had never experienced before.  She started to work on weekends to try to “become perfect” because she wanted Dani’s negative comments to stop.  She says she “quickly lost all my confidence”.

12In November 2017, Ms Capitanio says she raised the issue of Dani’s behaviour with her manager, Lydia.  She told Lydia that it was affecting her mental health and asked to be moved to a different section but was told this was not possible.

13At some point, Dani was called in to a meeting with Lydia to discuss Ms Capitanio’s concerns.  During that meeting, Ms Capitanio was asked to come in, and says she “felt put on the spot” and that “it would have been clear to Lydia and Dani that I was struggling mentally”.  For four weeks after this meeting, Ms Capitanio struggled and felt that there was no change in Dani’s behaviour.  She was told that her only option was to resign, which she then did.  She was told she was required to work out a four-week notice period, but after two weeks she was unable to continue due to anxiety.  She finished at Mainfreight on 2 February 2018.

14Ms Capitanio says she was under such stress from work that she was grinding her teeth, vomiting, had anxiety, poor sleep, poor concentration, low motivation and severe distress.

15On 23 January 2018, she consulted a general practitioner, Dr Van Den Broek at the Coolaroo Clinic.   She was prescribed Amitriptyline, 25 milligrams, for anxiety and depression.  That dosage was gradually increased over subsequent attendances to 50 milligrams. 

16She was provided with a referral for a mental health care plan to discuss her problems with a psychologist and saw  Ms Paterson for a number of sessions.  In July 2018, she was referred to psychiatrist, Associate Professor Michael Wong, who recommended that she continue to see her psychologist and increase her medication to a therapeutic dose, but did not consider that she needed ongoing psychiatric treatment.

17She commenced seeing a new psychologist, Ms Patricia Gallagher, who she continues to see every week.

18Since leaving Mainfreight in February 2018, Ms Capitanio has not worked at all.

Pre-existing medical condition and stressors

19In 2012, Ms Capitanio had a mental health crisis in the context of the break-up of a long-term relationship.  At this time, she felt suicidal and “struggled to cope mentally”.  She received counselling, although she was unable to recall how many sessions she attended.  She says with counselling, she was able to better cope and her “mental symptoms settled”.  She says by 2013, she was not experiencing any mental health issues.

20In 2014, she was involved in a car accident which, apart from physical injuries, also caused her some psychological symptoms.  In her August 2020 affidavit, she says that she “did suffer some feelings of low mood due to the pain of my shoulder injury”; however, says that this did not interfere with her ability to work and that her mood improved when she was working at the Gateway Diner.

21She says she also had some depression in 2015 when her boyfriend was having some “personal issues”.   This appears to be a reference to her boyfriend’s ice addiction and the fact that he was in prison awaiting a court date and that she was supporting him through this process.  She was prescribed Valium at that time by her general practitioner.  She says at that time, she was also having nightmares after her car accident.  She was referred to a psychiatrist and a psychologist but says she did not proceed with either referral at that time. 

22In mid-2017, Ms Capitanio was involved in another car accident in which she was a front seat passenger.  She was thrown forward and the seatbelt cut into her left shoulder, causing further pain.  Ultrasound showed no additional damage to the shoulder and Ms Capitanio says that “[w]hile the accident did cause a temporary flare in my left shoulder pain, I was already in pain before the accident happened and the pain soon returned to the level it was prior to the accident.  I did not require any additional treatment as a result of this accident.” 

23Ms Capitanio says in the period of approximately two years prior to her employment with Mainfreight, she also had migraines, which were thought to be hormonal and related to her period.  A brain CT scan was normal.   She says these were of a different type and frequency to the migraines she experienced as a result of the stress of working at Mainfreight.

24In her affidavit, Ms Capitanio says that at the time she commenced work with Mainfreight, she weighed about 80 kilograms but that, as a result of “comfort eating” she now weighs 135 kilograms, a weight gain that she attributes to her employment. 

25Ms Capitanio says that, prior to her employment with Mainfreight, and aside from these incidents of mental health difficulties, she “had a good life, in spite of my shoulder injury”.  She says that she “always tried to look my best.  I always had my hair done and felt good about the way I looked.  I was enjoying my life, my relationship and a brand new puppy.  I loved going on weekends away with [my partner] Abdullah to Waranga Basin, camping and jet skiing.  I also enjoyed frequent family functions.”  She said prior to her employment at Mainfreight, “we would be out four nights a week and attend every family function.  I always loved socialising, getting dressed up and taking pride in my appearance.”  She said she used to enjoy going to a car club with female friends which was a very active club which she ran and promoted.  She would go camping “many times a year with friends and extended family”.

Post-injury events

26Since the events at Mainfreight, Ms Capitanio has had two further incidents involving her knee.  The first occurred in January 2019 when she fell after getting stuck in mud whilst getting off a jet ski and partially tore her ACL.  Although she was referred for surgery, she elected to have conservative management including aggressive physiotherapy.  In July 2020, she again tore her ACL when she slipped whilst alighting from a tow-truck.  She underwent reconstructive surgery in March 2021 and is currently undertaking a pain management program through Advance Healthcare in Bundoora, which she attends twice a week.  This also involves a home exercise program and psychological counselling. 

27In 2020, after her knee injury, her left shoulder injury “flared up”.  For her knee and shoulder injuries, she takes Norflex and Meloxicam.  She also suffers from gastric reflux, for which she is prescribed Somac.  She had stomach ulcers prior to her work with Mainfreight. 

28In addition to the physical injuries Ms Capitanio has sustained since her work at Mainfreight, she has also experienced some significant life stressors. 

29In about May 2019, her dog, Shadow, bit someone.  The victim instituted legal proceedings against Ms Capitanio and there was a prospect that Shadow would have to be destroyed or declared a dangerous dog.  Whilst Ms Capitanio made no mention of this event in her affidavit material or evidence-in-chief, she agreed in cross-examination that this was very stressful and she became very emotional when giving evidence about it.

30A further stressful event was that her bank accused her of fraudulent activity and questioned the legitimacy of the income documentation provided to secure a home loan.  There was a risk that Ms Capitanio could lose her house.  The issue was ultimately resolved without court proceedings when Ms Capitanio’s mother purchased the house.  Ms Capitanio agreed in cross-examination that this had significantly increased her stress levels. 

31Ms Capitanio also agreed that this Court case had caused her significant distress and that her medication had been increased as a result.  She said that attending medico-legal appointments and going over the events repeatedly aggravated her symptoms.

The Plaintiff’s credibility and reliability

32There are significant inconsistencies in the evidence given by Ms Capitanio in her affidavits in this proceeding, the affidavit she previously swore in legal proceedings arising from her motor vehicle accident, the histories she has provided to various medico-legal experts and her evidence under cross-examination.  I will deal with just a few examples.

33Ms Capitanio did not mention her transport accident to Dr Van Den Broek, Dr Beaton, Dr Salimi or Associate Professor Wong, even though she was involved in litigation arising from the accident at the time of those consultations.  She did not mention her transport accident to Associate Professor Mendelson, medico-legal expert for the defendant.  When it was put to her that she had not given a complete and accurate picture, she said:

“Yeah, but what’s written there, like if I’ve only just said about a breakup, then like no I haven’t, like yeah, given that – I just answered the questions that he asked.  Like, I’m assuming I would’ve answered the questions that he asked me but it’s not that I’m like hiding anything, I just obviously – I just didn’t.  My mind – like my mind takes over and I literally go blank when I’m asked questions and in situations.”[1] 

[1]Transcript 64

34When I questioned the plaintiff about whether she was saying that she could not recall whether or not this was the history she gave, she said:

“Honestly I can’t remember.  I can’t remember the conversation, I can’t remember the appointment.  Like obviously I remember having an appointment and having several appointments leading up to this but what was said in those appointments, no, I can’t remember.  Like, yeah, my brain is very blank and nothing absorbs into my head.”[2] 

[2]Transcript 64

35It was very difficult to understand whether Ms Capitanio was saying that she did not remember what she said during her consultations, or whether she was saying that, in addition to not remembering what was said during her consultations, her memory issues meant that during those consultations, she was unable to recall her medical history and therefore her history may have been incomplete or inaccurate.

36Ms McLeod, occupational therapist for the defendant, reports that Ms Capitanio gave her a history that the car accident did not affect her and that she “got over it very quickly”.  Counsel for Ms Capitanio objected to the admissibility of Ms McLeod’s report on the basis that it was not sworn evidence and that Ms McLeod was routinely retained only by defendants and descended into an inappropriate advocacy role.  I allowed the report into evidence, as the practice in this Court in these matters is to require notice to be given if an expert is required for cross-examination.  Reports are not required to be sworn or exhibited to an affidavit.  This is an important feature of the case management of the Serious Injury List and in keeping with the Court’s overarching obligations pursuant to the Civil Procedure Act 2010. Counsel further submitted that I should reject the history that Ms McLeod says she was given by Ms Capitanio as it was “highly unlikely” that the plaintiff would have said that prior to the bullying, there had never been any anxiety. When the history she had given was put to Ms Capitanio in cross-examination, she said that she could not remember what she had said to Ms McLeod. She said:

“I don’t – I do remember the name but, again, like my – yeah, my head’s like – I don’t know, my head’s all over the place so I don’t remember exactly what was said, what was spoken about.”[3]

[3]Transcript 66

37When it was put to her specifically that she had said that she got over the car accident quickly, she said:

‘I don’t – honestly I don’t remember.  And I don’t – I don’t think I would’ve meant it in a – in a way that it didn’t affect me and I like got over it in – yeah, I don’t know how I – how I meant that.”[4] 

[4]Transcript 67

38This was the tenor of much of Ms Capitanio’s evidence when it came to the history that she had given to medical treaters and experts, and the treatment she had received. 

39In her transport accident proceeding, she swore an affidavit dated 16 March 2018.  This was sworn after she had finished working at Mainfreight.  In that affidavit, she says that she resigned from Mainfreight as a result of bullying and describes it as “a very traumatic experience, particularly as I was already feeling vulnerable due to my shoulder injury”.  That is the extent of her evidence in the transport accident proceedings about her Mainfreight injuries.  She says that, as a result of her transport accident injuries, she suffers from anxiety and depression.  She also says the shoulder injury has caused her to be unable to participate in go-karting, which she did most weekends and in which she engaged competitively.  She has been unable to participate in her former hobby of candle making because it is too heavy to pour with her injured shoulder.  She has been unable to continue cake decorating which she used to love and “was really into”.  It was too hard to “even roll the icing” due to her shoulder.  She also attributed a weight gain of “probably over 20kg” to her inability to exercise, go to the gym and do weights because of her shoulder injury.  She said that she worried about her ability to have children because holding a friend’s baby recently had been difficult due to her shoulder pain.  She said that she was “often … down, although I do have good days in between.  I am more irritable and get easily frustrated.  I feel much less motivated to do things than I was before the accident.  I feel like I have less energy.  I find it hard to concentrate and I feel forgetful.”

40On 19 December 2017, during the period that she was employed at Mainfreight, she saw Dr Nathan Serry, psychiatrist, for a medico-legal assessment as part of her transport accident claim.  He recorded her instructions that she had felt suicidal in the context of a relationship breakup in 2012.  She had stopped herself from stepping in front of a train.  She then had “a few sessions” with a psychologist, with some benefit, and there had been no recurrence of suicidality.   

41Dr Serry noted that she was a clear and fairly straightforward historian.  He diagnosed her with “not insignificant levels of depression” and noted that she was anxious, stressed, frustrated and has also been somewhat traumatised by the accident circumstances.  He diagnosed a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation.   There is no mention of Mainfreight, bullying or any of the issues that Ms Capitanio now swears she was experiencing at this time, including vomiting on the way to and from work, a severe increase in migraines caused by the stress of the work environment, loss of confidence or working excessive hours to try to be “perfect”. 

42In her affidavit in this proceeding, she says that after working at Mainfreight–

“… I would cry all the time.  I was trying to keep my crying a secret from Abdullah and his family, with whom I was living at the time, as I was embarrassed. I was also self-conscious, because Abdullah had commented how much I had changed.  We made the decision to move to my parents’ house, so I could cry without worrying what his family thought of me.  I still cry a lot and think about what happened.”[5]   

[5]Plaintiff’s affidavit sworn 11 August 2020 – Plaintiff’s Amended Court Book page 15

43That her tearfulness and distress apparently causing her to move houses would tend to suggest that it was a significant issue in her life.  That there is no mention of this or any of the other issues she attributes to her work injuries, leads me to conclude that Ms Capitanio did not give this history to Dr Serry.

44After ceasing work at Mainfreight, Ms Capitanio started to see Ms Patricia Gallagher, a psychologist, with whom she continues to work to date.  Ms Gallagher prepared a report dated 27 October 2018, some nine months after Ms Capitanio ceased work at Mainfreight.  In that report, she opines that “[t]here is a reasonable degree of psychological certainty that the transport accident (my emphasis) caused Ms. Capitanio the posttraumatic stress, depression, anger, adjustment issues, poor psychosocial, daily and interpersonal functioning and anxiety”. 

45On 25 July 2019, Ms Gallagher prepared a report to assist Ms Capitanio in her case to ensure that her dog, Shadow, was not destroyed or declared by the Council to be a dangerous dog.  In that report, she says that she has made an assessment and diagnosis of Post-Traumatic Stress Disorder following workplace bullying, in addition to a transport accident, another transport accident in 2017 and distress pertaining to her partner’s family, building a new house and almost losing the title due to her unemployment, and return to work expectations.

46The picture painted by Ms Capitanio and the reports of Dr Serry and Ms Gallagher of her psychological state resulting from the transport accident, are somewhat at odds with Ms Capitanio’s evidence in her affidavit material about the fullness of her life, and her enjoyment of a range of outdoor, social and family activities prior to her work at Mainfreight.

47Counsel for Ms Capitanio submitted that I should accept that she had, in fact, recovered from any pre-existing psychiatric conditions at the time that she commenced at Mainfreight and, to the extent that her affidavit material in her transport accident claim was inconsistent with that, I should conclude that she had “forgotten” that she was in fact in “a very good place indeed”, happy and with no stressors.  He submitted that because of her injury at Mainfreight, she now “paints the past as very black indeed” but that she is overlooking the fact that “she had very sunny windows between the time of the motor vehicle accident and the time when she started at Mainfreight”.  He points to an attendance on her general practitioner, Dr Ankur Patil, on 21 June 2017, shortly prior to her commencement at Mainfreight, in support of this submission.  Ms Capitanio attended Dr Patil for blood tests in the context of fatigue and low energy levels.  He notes “no stressors at present/just bought new house and mortgage payment but fine happy family lives with her partner”.  Counsel submits that this single entry demonstrates that if Ms Capitanio had any psychiatric injuries arising from her transport accident, by 21 June 2017, they had entirely resolved.

48I find it difficult to accept this submission. 

49None of the experts that she saw commented on her inability to recall events, or difficulty remembering her history or treatment.  It is the role of the expert to disentangle causative events and determine the relative impact each may have had.  The expert cannot do this if they are not informed of the possible causative event.  Ms Gallagher began treating Ms Capitanio only after the Mainfreight experience and yet attributes her injuries to the transport accident in her report of October 2018.  An earlier report of Ms Gallagher to Ms Capitanio’s general practitioner dated 12 July 2018 notes both the workplace bullying and the “precipitating trauma associated with a motor vehicle accident”.  In her subsequent report dated 28 July 2021, Ms Gallagher diagnoses a Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Adjustment Disorder with depressive episodes related to her employment.  She notes that Ms Capitanio has “other reported accumulative traumatic events” which she reported as “exacerbated due to her exposure at Mainfreight” and cites the dog attack and the transport accident as examples.

50Associate Professor Michael Wong, consultant psychiatrist, who saw Ms Capitanio on 19 July 2018,  noted that “[a]s far as I can ascertain she has been well all along until October last year when she was subjected to repeated bullying and ridicule from a colleague …  Miss Capitanio became increasingly anxious and depressed … .”  Associate Professor Wong notes a left shoulder injury but records nothing about the circumstances, including that it occurred in a transport accident.  Presumably he was not given the history of Ms Capitanio’s earlier psychiatric issues.

51Ms Capitanio started attending a different general practitioner clinic – Coolaroo Clinic – in January 2018, shortly after she resigned from Mainfreight.  Prior to this, she had attended Bellfield Medical Centre.  It was put to her that she did not give her treating general practitioners at Coolaroo Clinic any history about her transport accident or its psychiatric sequalae.  She agreed that she had not given that history on presenting to the Coolaroo Clinic and said, “obviously at the time I just wasn’t thinking and I just didn’t tell them”.  It was put to her that it was very unlikely that her psychiatric injuries from the car accident slipped her mind because this was very close in time to when she swore her affidavit in the transport accident claim.  It was put to her that she was downplaying her psychiatric problems from the past by saying that she had mood issues many years ago after a breakup but recovered, and mentioning nothing else.  In response to this submission, Ms Capitanio said:  “I’m not – I don’t 100% remember.  Like my head – when – with all the Mainfreight like really took a massive toll.”   She gave evidence that the Coolaroo Clinic was more convenient and that is why she had switched to a different general practice.

52Counsel for the defendant submitted, reasonably accurately, that Ms Capitanio was able to give evidence in a straightforward manner and with no apparent difficulty until it came to the point where she was directly challenged about her evidence and then she would be unable to recall or remember anything.  Counsel for the plaintiff submitted that this was all evidence of the extreme distress the injuries have caused Ms Capitanio.    The impression I had was not that Ms Capitanio was deliberately dissembling, however her evidence was of limited assistance to me because she was unable to recall what had transpired in consultations with doctors. 

53What is clear is that Ms Capitanio’s evidence is somewhat unreliable.  She has not given a complete history to the medical practitioners that she has seen, both for treatment and as experts in either this claim or her transport accident claim.  This means that their assessment as to the causes of her psychiatric injuries is also somewhat unreliable.  Her evidence in Court was unimpressive and unhelpful in assisting me, but I did not conclude this was because she was trying to mislead the Court.  She gave the impression of someone who was trying to answer questions but, when exposed to relatively mild pressure in cross-examination, “fell to pieces”. 

54I formed the impression that Ms Capitanio did not have a clear sense of the delineation in her injuries before Mainfreight and after Mainfreight.  For example she knew that she had put on weight, and she was now heavier than she had ever been, but she could not recall the timing of that weight gain with any precision.  She accepted that she had been depressed and anxious before Mainfreight, but felt that everything was worse after Mainfreight.  She had migraines before Mainfreight, but they were different and worse after Mainfreight.  She answered questions and gave histories to doctors that accorded with her understanding of the reason for her appointment with the particular doctor.  When her transport accident was front of mind, she likely apportioned greater weight to it in contributing to her symptoms.  When she was focused on her Mainfreight experience, she likely attributed more of her symptoms to that injury. 

55This is unsatisfactory and unhelpful but is not automatically fatal to her case.  Whilst the reliability of the plaintiff is of considerable importance to the ultimate outcome of the proceeding, it is not the only evidence that I must consider.  I must look at the whole of the evidence in making my determination.[6]

[6]See Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph [64], citing generally Mobilio v Balliotis [1998] 3 VR 833 at 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1609, paragraph [60]; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, paragraph [27]; Woolworths Ltd v Warfe [2013] VSCA 22, paragraph [88]; Veljanovska v Verduci (2014) 42 VR 222 at 231-232, paragraphs [39]-[40]; Haidar v Transport Accident Commission [2016] VSCA 182, paragraph [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, paragraph [91]; Rowe v Transport Accident Commission [2017] VSCA 377, paragraph [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, paragraph [74]; Yilmaz v Specialty Fashion Group Limited [2019] VSCA 100, paragraph [73]; Johns v Oaktech Pty Ltd  [2020] VSCA 10, paragraph [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, paragraph [66]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, paragraphs [87]-[88]

Was there a pre-existing injury?

56Contrary to the submission of the plaintiff’s Counsel, the evidence supports a finding that Ms Capitanio did have a psychiatric condition prior to the commencement of her employment with Mainfreight.

57Given the unreliability of Ms Capitanio as a historian, I have attempted to ascertain from the clinical notes the state of her mental health prior to her employment at Mainfreight. 

58It is clear that Ms Capitanio had a significant mental health issue in 2012 when she became suicidal at the breakdown of a relationship.  This appears to have settled with some counselling and without the need for medication.  She was referred for psychiatric follow up and provided a prescription for temazepam, but says that she did not follow through with either.  I am unable to determine whether her condition resolved entirely but it certainly settled to the point where she was no longer seeking any treatment for it, and it was not interfering with her life or capacity to work.

59In 2015, Ms Capitanio also had a significant mental health issue.  Her general practitioner noted on a number of occasions in July and August 2015, that she was depressed, that her “anxiety had relapsed” and that she was very stressed.  She was referred for psychological treatment and was prescribed Valium for her symptoms.  She says she did not take up this referral, though it is unclear whether she may have had some consultations with a psychologist as she reported to Dr Serry.  When asked in cross-examination whether she had seen a Dr Kaplan, she could not remember.  She said that if she had told Dr Serry that she had seen a psychiatrist approximately six times, then it is likely that that happened.  She could not remember whether she had taken the Valium but accepted that the medical records indicated that she had taken it.  It is likely that she had taken Valium.

60In the context of her transport accident claim, Dr Serry diagnosed Ms Capitanio with a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation.  He attributed just under half of her psychiatric injury to a direct consequence of her transport accident and just over half as secondary and reactive to the physical injuries to her shoulder and her ongoing pain and restriction.  To the extent that plaintiff’s Counsel says that this assessment by Dr Serry was undertaken at a time when she was already working at Mainfreight and that her presentation at that time was already impacted by the Mainfreight injuries, this does not account for the proportion of her injury that he ascribes to a secondary and reactive consequence to her physical injury.  As she had a diagnosable injury at the time of her assessment with Dr Serry that he ascribed to the transport accident, on the balance of probabilities, that injury persisted from the time of her transport accident, albeit it may have fluctuated in intensity depending on other life stressors.

61Ms Capitanio had a period where she was unable to work, or unable to find work.  This was at least in part due to her shoulder injury and the need for surgery.  However, she did recommence working fulltime, though the date that she commenced at the Gateway Diner is unclear.  Certainly by the time she started work at Mainfreight, she was in full-time work.  She had other health issues at that time, including a significant weight gain, ongoing shoulder restrictions, migraines, gastric issues and sleeping problems.  She agreed that throughout 2015 and 2016, she continued to feel stressed and anxious.   I am satisfied that there was a pre-existing psychiatric injury and that it had not resolved at the time of her employment with Mainfreight, but at the time of that employment, she was not taking any medication or receiving any counselling.

Was there a severe aggravation of the pre-existing injury?

62After commencing work at Mainfreight, Ms Capitanio describes a worsening of various stress-related symptoms, including migraines, weight gain, anxiety and vomiting.  It is clear that many of these symptoms pre-dated her work at Mainfreight and it is difficult to assess the degree, if any, to which they worsened after Mainfreight.  There are no contemporaneous medical records that demonstrate the development of a psychiatric injury during her employment at Mainfreight and as I have already found, her evidence is unreliable. 

63After ceasing work at Mainfreight, she was referred for psychological counselling and commenced on medication.  Initially she took Amitriptyline and slowly titrated her dosage upwards from 25 milligrams to 60 milligrams.  Her medication was subsequently changed to escitalopram and, more recently, to Valdoxan.  Aside from a short period at the end of 2020 or the beginning of 2021, Ms Capitanio has remained on medication continuously since February 2018.  She has had ongoing psychological treatment.

64In terms of the impact on her enjoyment of life and the social activities that she undertook, her evidence in cross-examination was that, after the transport accident but before Mainfreight, “I was trying to like do things to enjoy my life” and “I went jet skiing but I wasn’t participating on the jet ski” and “I was hiding away, and I would also try and like enjoy things.  My partner would try take me out to pull me out of my headspace that I was in.  So I tried to enjoy things.  Sometimes I did, sometimes I didn’t.”  When it was put to her that this evidence was inconsistent with what she had said in her transport accident affidavit, she reverted to “I don’t recall, I can’t remember”.  This evidence was unpersuasive.  It may be, as her Counsel submitted, that her solicitor “over-eggs the pudding” in the transport accident affidavit, but it is impossible for me to know whether they “over-egged the pudding” in the transport accident proceeding, or whether that accurately reflected her state at that time, and that her affidavit in this proceeding is, in fact, “over egged”.  In any event, Ms Capitanio has sworn the affidavits in both proceedings and it is her obligation to ensure those affidavits are true and correct. 

65Ms Capitanio also sought, in her affidavit material, to lay the blame on Mainfreight for unrelated events.  For example she attributes her two falls which caused her knee injury to the fact that she feels “clumsy and awkward with everything I do, since leaving Mainfreight.  I am never sure of myself.  Prior to working at Mainfreight I was steady on my feet and would not have fallen out of a tow-truck, or off a jet ski.”   In cross-examination, she accepted that her original knee injury was caused because her foot got stuck in mud, and the fall from the tow-truck occurred because the knee was vulnerable from her earlier injury.  I do not accept that these events can appropriately be attributed to her psychiatric condition. 

66Ms Capitanio did say “I just feel that my Mainfreight experience has enhanced everything ten times more.  So my confidence is like zero.  It was tough – like affected during my TAC claim, and now with Mainfreight and after all the bullying – and, like it was affected like more” which is perhaps the clearest articulation of the way that she puts her case.  Counsel’s most compelling submission was that, to the extent that the transport accident affidavit may be unreliable, it is not to be preferred to the evidence of what was actually happening in relation to treatment.  I consider the most persuasive evidence of her mental state to be the objective evidence about what treatment and medication she was receiving and when.

67Associate Professor Mendelson, consultant psychiatrist, opines that, in his opinion, Ms Capitanio had a pre-existing psychiatric condition while employed at Mainfreight but there is no basis for the view that she developed either a Major Depressive Disorder or a specific Anxiety Disorder as a consequence of any bullying and harassment.  He based this opinion on a review of her medical notes, other expert opinions and her affidavit material sworn in the transport accident claim, and noted the various discrepancies in her accounts.  He then examined her via a Telehealth appointment in June 2021.  I am not persuaded of the usefulness or validity of an expert forming a conclusion about someone’s psychiatric presentation based on a documentary review.  A psychiatric condition is not something that can be assessed and diagnosed by reviewing radiology or pathology.  Associate Professor Mendelson then confirmed his opinion after a Telehealth consultation.  I view his conclusions with some caution.  There is a natural tendency to confirm an opinion already formed and indeed, he did not deviate from his already formed opinion that she had a pre-existing psychiatric condition of Chronic Adjustment Disorder with Anxious and Depressed Mood that developed as a consequence of the motor vehicle accident in June 2014.  He went on to say that –

“… any exacerbation of the pre-existing ‘chronic adjustment disorder with anxious and depressed mood’ - diagnosed by Dr Serry on 19 December 2017 - that might have occurred during the following month, prior to Ms Capitanio ceasing work with Mainfreight Distribution on 18 January 2018 would have resolved within a short time of her leaving that employment.”[7] 

[7]Report of Dr Mendelson dated 30 June 2021 - Defendant’s Amended Court Book, page 44

68Associate Professor Mendelson does not explain why any such exacerbation would have resolved within a short time, nor does this accord with the medical treatment she received, or the medical records.  He opined that her employment with Mainfreight “is not a contributing factor to Ms Capitanio’s “current” emotional symptoms or psychiatric condition.”  Again, he does not explain his reasoning for this conclusion, other than his opinion that the full extent of her psychiatric condition existed prior to her commencement at Mainfreight.  Again, this does not accord with the evidence that she only commenced medication and psychological treatment after that employment.

69Associate Professor Mendelson’s opinion was primarily formed by his review of the documentary material and not from an objective assessment of Ms Capitanio herself, and is inconsistent with the other medical material and the impression I formed of Ms Capitanio.  On the basis of the preponderance of the medical material, I am satisfied that Ms Capitanio experienced an aggravation of a psychiatric condition as a result of her employment with Mainfreight.

70To meet the relevant threshold, the additional impairment resulting from the aggravation must, on its own, be serious.[8]  I cannot consider the totality of the plaintiff’s psychiatric symptoms that arise from the transport accident, Mainfreight and subsequent events.[9] I must make findings about all of the pain and suffering consequences operative at the date of the hearing and decide which of those consequences are attributable to which injury.[10]

[8]        Petkovski v Galletti [1994] 1 VR 436

[9]        AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraph [34]

[10]        Peak Engineering & Anor v McKenzie [2014] VSCA 67

71The test for a serious injury is described as one where, in comparison with other cases, the consequences can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[11]  Whilst there is no established test for what is meant by “severe”, it is accepted that “severe” is intended to convey something with stronger force than “serious”.[12]

[11]        Humphries & Anor v Poljak [1992] 2 VR 129

[12]        Mobilio v Balliotis (supra)

72Having made findings about the reliability of Ms Capitanio’s evidence, I significantly discount her evidence as to the impacts of her psychiatric injury on her day-to-day life.  I accept that an aggravation of her psychiatric injury is likely to impact her day-to-day enjoyment of life, but she has not persuaded me that it is the Mainfreight injury that has caused those activities to be lost to her, as opposed to the transport accident.  There is some evidence that, in relation to jet skiing at least, she continued to pursue this to some degree even after her Mainfreight injury. 

73Nevertheless, and very importantly, prior to her employment at Mainfreight, she was able to work full time.  She was not on medication and she was not receiving any ongoing treatment for her mental health.  None of those things are true any longer.  It is her inability to work that is most significant.  If I am satisfied that inability arises from her Mainfreight injury, then that is clearly a severe consequence that would satisfy the relevant test. 

Has the Plaintiff suffered a loss of earning capacity?

74The defendant points to the plaintiff’s education and employment history to demonstrate that she has capacity for a range of suitable employment. 

75The defendant also submitted that, to the extent that Ms Capitanio has any loss of earning capacity, such a loss has been caused or contributed to by other factors, including aggravation of her psychiatric injury by subsequent stressors and unrelated physical injuries to her knees.  The defendant points to the subsequent unrelated stressors as significant factors in both Ms Capitanio’s mental state and her capacity to work.  In particular, her knee injuries would, the defendant submits, have kept her out of the workplace regardless of her psychiatric injury.

76The defendant also submits that Ms Gallagher’s treatment has been successful in reducing or eliminating her work-related trauma.

77The defendant points to the reports of Associate Professor Mendelson and Ms McLeod, who formed the view that she has a current work capacity. 

78Associate Professor Mendelson formed the view that there was no indication that she had any loss of work capacity as a result of any work-related diagnosed mental disorder and that her “emotional symptoms” do not preclude her from gainful employment if “she were motivated to do so”.  He has formed an opinion that the finalisation of her compensation claim will lead to “amelioration of her symptoms” and then discusses and attaches an article related to “secondary gain” in which individuals adopt “the sick role” and carry an illness until an opportunity arises for transforming this into (or presenting it as) a “no-fault illness”.  He says “it would appear that it has been claimed by Ms Capitanio, or on her behalf, that she has anxiety and depressive symptoms that are attributed either to the motor vehicle accident on 29 June 2014 or to alleged ‘bullying’ while employed … depending on whether she is examined in relation to the former or in relation to the workers’ compensation claim”.  He does not go so far as to say that Ms Capitanio is involved in “secondary gain” or has taken on “the sick role”.  Nor would such a diagnosis make any logical sense, given that her pre-existing psychiatric condition would appear to have arisen from a compensable injury, being her transport accident.   Presumably he considers this article is relevant to his assessment of Ms Capitanio. A suggestion that she is manufacturing, overstating or mis-attributing her symptoms permeates his report.  As he does not consider that she has any psychiatric condition arising from her work, and as she was working full time at the time of her injury, it follows that he considers there is no impediment to her working full time.

79Ms McLeod considers that there is no impediment to Ms Capitanio’s ability to work in a range of suitable employment options which include: event co-ordinator, make-up artist, sales representative, administrative assistant and receptionist. 

80Ms McLeod opines that Ms Capitanio presents as unmotivated to return to the workforce and would require a significant change in mindset to successfully transition back into the workforce.  Further, she says Ms Capitanio has little incentive to return to work whilst in receipt of weekly payments of compensation.  I consider that this “opinion” falls outside the role and expertise of Ms McLeod, who is an occupational therapist and was engaged to provide an opinion as to Ms Capitanio’s work capacity, rather than her motives or incentives to return to work.  I am not persuaded by Ms McLeod’s view as to Ms Capitanio’s work capacity.

81I find it difficult to reconcile the opinions of Associate Professor Mendelson and Ms McLeod with the other available medical material and the impression I formed about Ms Capitanio.    

82I accept that Ms Capitanio’s shoulder and knee injuries do not preclude her from undertaking the suggested roles, nor would they prevent her from returning to her pre-injury duties, though they might limit the scope of her employment options.  Therefore, I do not accept the defendant’s submission that subsequent events would, in any event, have reduced or eliminated Ms Capitanio’s work capacity other than for a confined period around the immediate physical injury and the surgery and recovery.   

83Whilst I have found that the incomplete history provided to medical practitioners rendered their conclusions as to apportionment of her injuries somewhat unreliable, I accept that those practitioners are able to form appropriate and valid conclusions about her work capacity.   Dr Serry, Ms Gallagher, and Dr Lilia Ilina, her general practitioner, were all aware of her transport accident, as well as the bullying allegations, and have come to different conclusions to Associate Professor Mendelson and Ms McLeod about her capacity for work.   I prefer their assessments as they accord more fully with the medical evidence and with the impression that I formed of the plaintiff.

84In his most recent assessment dated 16 July 2021, Dr Serry concludes that Ms Capitanio “does not in my opinion have a capacity to perform preinjury duties on a part-time or full-time basis, an incapacity that is likely to last for the foreseeable future”. 

85Dr Lilia Ilina considers that, as at 18 May 2021, Ms Capitanio is improving with current treatment but her condition is likely to persist and fluctuate for an indeterminate period and she currently has no capacity for work.

86A vocational assessment of Ms Capitanio was carried out by Ms Katherine Rintoule, human resources consultant of Flexi Personnel, on 22 July 2021.  Ms Rintoule was unable to identify any vocations or employment roles that were suitable and would not consider referring Ms Capitanio to an employer for any vacancy.

87Perhaps most persuasively, her ongoing treating psychologist, Ms Gallagher, who has worked with Ms Capitanio since 2018 and who expresses some optimism about Ms Capitanio’s prospects for improvement, expressed her opinion on 28 July 2021 that she does not have current capacity to perform suitable employment duties. 

88I am required to assess the plaintiff as she is on the day.  Whilst Ms Gallagher expresses some optimism about the future prognosis for Ms Capitanio, I am satisfied on the balance of probabilities, that the medical evidence and Ms Capitanio’s presentation accord with a finding that she has no, or extremely limited, work capacity for the foreseeable future.

89I accept that there may have been some further psychological aggravation caused by subsequent life events, but there is no evidence before me upon which I can be satisfied that it is these events, rather than the events at Mainfreight, that have caused Ms Capitanio’s loss of earning capacity.   Those subsequent life events, for example, have not resulted in any substantial change in the treatment Ms Capitanio requires.  Her need for medication and treatment arose immediately after her Mainfreight employment, not after any of the subsequent events.

Findings

90At the time of her employment at Mainfreight, Ms Capitanio was able to work full time, notwithstanding her shoulder injury and her pre-existing psychiatric injury.  I am satisfied on the evidence that it was her experience at Mainfreight that has aggravated her injury to the extent that she is no longer able to work.

91Accordingly, I am satisfied that Ms Capitanio has suffered an aggravation of her pre-existing psychiatric condition, that that aggravation of her injury has resulted in her having no work capacity for the foreseeable future, and requires medication and ongoing psychological counselling, and that these consequences amount to consequences that are very considerable, certainly more than significant or marked, and something more than serious.  Accordingly, she meets the threshold to be granted a serious injury certificate and I grant leave to bring proceedings for both pain and suffering and loss of earning capacity.

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