Carassellos v Boral Resources (Vic) Pty Ltd
[2012] VCC 402
•13 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05588
| NICHOLAS CARASSELLOS | Plaintiff |
| v | |
| BORAL RESOURCES (VIC) PTY LTD | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 19 March 2012 | |
DATE OF JUDGMENT: | 13 April 2012 | |
CASE MAY BE CITED AS: | Carassellos v Boral Resources (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 402 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: serious injury - whether the plaintiff suffered a secondary psychiatric injury - whether the secondary psychiatric injury was causative of the consequences contended for by the plaintiff - whether the pain and suffering and loss of earning capacity consequences were severe
LEGISLATION CITED: Accident Compensation Act 1985, s.134AB(38)(d)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
RULING: leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC With Mr J Brett | Arnold Thomas & Becker |
| For the Defendant | Mr J Simpson |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 16 June 2010 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Mighell SC appeared with Mr J Brett of Counsel for the plaintiff and Mr J Simpson of Counsel appeared for the defendant.
4 The plaintiff submitted that he had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Ms Hooper, psychologist gave evidence and was cross-examined;
· The plaintiff tendered his Court Book ("PCB"), pages 12 -137: Exhibit A;
· The defendant tendered film taken of the plaintiff on six and 13 May 2010: Exhibit 1;
· The defendant tendered the clinical notes of Dr Hooper, psychologist: Exhibit 2;
· The defendant tendered its Court Book ("DCB"), pages 1-23E; 25-139, and 142: Exhibit 3.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
[1]S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(e) Subsection (38)(I) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i) Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j) In conformity with Barwon Spinners (supra), I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Issues
9 The defendant admitted that the plaintiff suffered an adjustment disorder with mixed anxiety and depressed mood. It denied the condition is permanent; that the pain and suffering and loss of earning capacity consequences could meet the statutory test.
10 I have carefully read the plaintiff's affidavits, the medical and other material, and I have carefully considered the helpful submissions made by Mr Mighell and Mr Simpson. The conclusion I have reached is that the plaintiff has suffered a mental or behavioural disturbance or disorder which meets the statutory test with respect to both pain and suffering consequences and loss of earning capacity consequences.
The Plaintiff's Prior History
11 The plaintiff left school when he was 17 years of age. He completed Form 4. He was convicted and sentenced to two years in prison for armed robbery when he was 18 years of age. It was the most serious of the criminal offences with which he has been charged and convicted in the past. He developed an addiction to illicit drugs using heroin, ice, cannabis and alcohol.[4]
[4]Transcript 12 and 13-17
12 The plaintiff said that he had ceased using any illicit drugs or alcohol. He last used any substances of that kind somewhere between 4 to 6 weeks ago.[5]
[5]Transcript 12
13 Mr Simpson submitted that the relevance of the plaintiff's criminal history and use of illicit drugs and alcohol explains the deterioration in the plaintiff's mental state in 2010.
14 The plaintiff suffered crush injuries to four vertebrae in his lower back when he jumped off a roof when he was eight years of age. He suffered an injury to his neck when he dived into a shallow pool when he was nine years of age. He suffered an injury to his right knee in a motorcycle accident in New South Wales in about 1996. He suffered a meniscal injury which required surgical treatment. The injury put an end to his marathon running.
15 Mr Simpson relied upon the plaintiff's prior injuries, his criminal history and history of use of illicit drugs and alcohol in submitting that I could not be satisfied that the pain and suffering and loss of earning capacity consequences contended for by the plaintiff were caused by the injuries he suffered in his work with the defendant.[6]
[6]Transcript 31-32
The Plaintiff’s Injury
16 The plaintiff commenced work with the defendant on 21 January 1995. He was employed as part of a bitumen crew. The work placed strain on his arms. In about October 2003 he experienced pain in his elbows which persisted. By about January 2004 the pain increased. He saw Dr Lipp, general practitioner at the Bridge Street Clinic on 17 January 2004. He diagnosed that the plaintiff was suffering from bilateral tennis elbows. He provided the plaintiff with anti-inflammatory gel and medication. He also provided him with a short course of acupuncture and referred him to physiotherapy. The plaintiff was provided with tennis elbow braces to wear during working hours.[7]
[7]PCB 29
17 The plaintiff was placed on light duties. He continued to experience pain in both elbows. He did some work which involved lifting weights up to 11 kg which he said was not consistent with light work. In September 2007 the Regional Manager for the defendant informed the plaintiff that he could not continue doing light work. He was told to go home.
18 The plaintiff has not worked since in September 2007. He lodged a claim which was accepted. He has been in receipt of weekly payments of compensation. He also made a claim for a lump sum which was also accepted, and I infer that he received a lump sum.
19 The plaintiff returned to the Bridge Street Clinic on 20 February 2006. On that occasion he saw Dr Harris, general practitioner. He told Dr Harris that he had been doing some jackhammering which had produced a recurrence of the pain in both elbows. He was provided acupuncture and referred to physiotherapy. He was treated by Dr Harris until April 2006 when he was referred to Mr Howells, orthopaedic surgeon.
20 The plaintiff saw Mr Harris on 13 April 2006. He diagnosed that the plaintiff was suffering from lateral epicondylitis or common extensor tendon origin tendonopathy of both elbows. Mr Howells referred the plaintiff to have plain x-rays and an MRI scan. Mr Howells applied for funding from the WorkCover authority for a trial of iontophoresis treatment. The funding was provided. He then referred the plaintiff to Dr Jowett, physician for that treatment to be provided.[8]
[8]PCB to 34-37
21 Dr Jowett saw the plaintiff on 28 August 2006. In a short report dated 22 June 2010 he referred to providing the iontophoresis treatment to the plaintiff. It would appear that he gave the plaintiff five episodes of treatment completing the course of treatment on 16 November 2006. He subsequently referred the plaintiff back to his treating physiotherapist for further treatment.[9]
[9]PCB 57-58
22 The plaintiff then saw Dr Wulfsohn, general practitioner on 7 June 2007. He referred the plaintiff to Mr Burns, orthopaedic surgeon. The plaintiff saw Mr Burns on 15 January 2008. He referred the plaintiff to have x-rays and an ultrasound of his elbows. He was of the opinion that there was a degree of tendonopathy involving the extensor carpi radialis brevis tendons bilaterally. Mr Burns referred to the plaintiff having to previous cortisone injections in both elbows which the plaintiff reported were of little benefit. Mr Burns gave the plaintiff a further steroid injection on 22 April 2008 into his right elbow. On review the plaintiff reported complete relief from pain. He had the same injection in his left elbow.
23 Mr Burns reviewed the plaintiff on 27 June 2008. He told Mr Burns that the good effect from the injection into his left elbow was short lived. He was given an autologous blood injection on that occasion. On review he told Mr Burns that he had minimal symptoms in his left elbow, but a recurrence of pain in his right elbow for which he was also given an autologous blood injection. On review on 15 December 2009 he told Mr Burns that both elbows had been good for 12 months, but he then had a recurrence of left lateral elbow and arm pain. He was given another steroid injection. It would appear that the plaintiff did not see Mr Burns again.
24 Dr Wulfsohn provided a number of medical reports dated 5 October 2008 (two bearing that date);[10] 14 February 2010;[11] and 20 March 2011.[12] Rather than provide a medical report in a conventional narrative form he provided the whole of his clinical notes. What I have gleaned from reading his clinical notes is that the plaintiff appears to have been under the care of Dr Wulfsohn from about June 2007, and it would appear that he was having a lot of treatment at that time.
[10]PCB 42-47
[11]PCB 48-54
[12]PCB 70-84.
25 Dr Wulfsohn’s clinical notes dated 28 July 2009 refer to the plaintiff seeing a WorkCover psychiatrist. However, the defendant’s Court Book does not refer to a psychiatrist having seen the plaintiff on its behalf. On that occasion Dr Wulfsohn prescribed the plaintiff Endep which is used to treat depression. The dosage was 25 mg with one to be taken at night.[13] The plaintiff was provided with subsequent prescriptions for Endep. On 2 August 2010 Dr Wulfsohn’s clinical notes reveal a reference to a psychologist, and a referral letter to Dr Hooper. The first mention of the plaintiff suffering depression is on 30 August 2010. On that occasion the plaintiff was prescribed Cymbalta which is used to treat depression.
[13]PCB 52
26 Mr Simpson submitted that whilst the defendant admitted that the plaintiff suffered a psychiatric injury it denied that the consequences were permanent and it denied that the psychiatric injury was causative of the consequences claim by the plaintiff.
27 The summary of the medical treatment which the plaintiff was having from 2006, when he returned to the Bridge Street Clinic and saw Dr Harris, through to the end of 2009, demonstrate that the plaintiff was suffering persisting symptoms resulting from the injuries to his elbows. He underwent a significant amount of treatment at the hands of a number of medical specialists. It was toward the end of that treatment that he was first prescribed Endep, and at a time when there does not appear to have been any significant respite from the symptoms of injury to his elbows. Temporally, it seems to me that there is a definite connection between what the plaintiff was enduring in terms of symptoms and treatment for the injuries to his elbows with the onset of the psychiatric injury.
28 True it is that the plaintiff suffered from other medical conditions, such as lower back pain and right knee pain and resorted to use of illicit drugs in about mid-2010.[14] I do not accept that those conditions and his use of illicit drugs in some way caused the development of the psychiatric injury.
[14]PCB 90-91
29 Dr Hooper began treating the plaintiff in about September 2010 as far as I can ascertain. Initially, Dr Hooper diagnosed that the plaintiff was suffering from depression. She altered that to a diagnosis of an adjustment disorder with mixed anxiety and depression of a chronic nature. The reason for the alteration in the diagnosis occurred because she identified the plaintiff is suffering from significant anxiety in addition to depression.[15] Dr Hooper provided a medical report dated 24 October 2011 in which she set out her opinions.[16] Essentially, she was of the opinion that the psychiatric injury was work-related, that the plaintiff would be unable to cope with work, and that his psychiatric injury was unlikely to improve significantly.
[15]Transcript 43
[16]PCB 116-119
30 Mr Simpson pointed to a slight change in language used by Dr Hooper when comparison is made between an earlier report and the report dated 24 October 2011, but on any analysis of both reports they appear to be almost the same. I do not consider that the change in language used is at all material. Furthermore, it was my impression that Dr Hooper maintained her opinion she expressed in her report dated 24 October 2011. She did not depart from that opinion during cross examination.
31 There otherwise appears to be unanimity among the psychiatrists who have examined the plaintiff that the plaintiff suffered a secondary psychiatric injury. Dr Tirpirneni, psychiatrist treated the plaintiff. The plaintiff was referred to him by Dr Wulfsohn. He was of the opinion that the plaintiff was suffering from a chronic adjustment disorder of a depressive type with a chronic pain syndrome. He referred to the plaintiff's cannabis and alcohol dependence; that he was a Cluster B personality type; that he had contracted hepatitis C; and that he suffered from multiple physical problems to his elbows, back and right knee.[17] He was nonetheless of the opinion that the psychiatric injury was work-related.
[17]PCB 96
32 Dr Weissman, psychiatrist examined the plaintiff on 19 November 2010. He was of the opinion that the plaintiff was suffering from a chronic adjustment disorder with depressed and anxious mood of a moderately severe intensity or severity.[18] He also noted that the plaintiff suffered poly-substance abuse, and in that connection he referred to the plaintiff's illicit drug use.[19] He was of the opinion that the plaintiff as unfit for work.
[18]PCB 80
[19]PCB 75
33 Dr Farnbach, psychiatrist examined the plaintiff on 28 July 2009. He was of the opinion that the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. He considered that he was fit for suitable employment, but would require a graduated return to work because he had been absent from work to 2 years.[20] Associate Professor Mendelsohn, psychiatrist was of much the same opinion. He examined the plaintiff on 15 December 2011. He was also of the opinion that the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, and that he had suffered no loss of capacity for work.[21]
[20]PCB 130 -132
[21]DCB 16
34 I prefer the opinions of Dr Wulfsohn, Dr Hooper and Dr Weissman over the opinions of Dr Farnbach and Associate Professor Mendelsohn. It is very apparent from the clinical notes of Dr Wulfsohn that the plaintiff had a great deal of treatment for his bilateral elbow injuries between 2006 and 2008. The secondary psychiatric injury emerged in 2009 after which the plaintiff was referred to Dr Hooper for treatment. There seems to be little doubt that the plaintiff’s mental state was deteriorating significantly, and that is confirmed by the opinion of Dr Hooper. I am fortified in accepting the opinion of Dr Hooper because it is supported by the opinion of Dr Weissman.
35 Furthermore, the plaintiff was examined by Dr Sutcliffe, occupational physician. She saw the plaintiff on 20 July 2011. It is apparent from the text of her report that she was asked to determine the plaintiff's fitness for work by assessing his bilateral elbow injuries and his psychiatric injury. She was of the opinion that the plaintiff was unfit for suitable employment when the psychiatric injury was considered in isolation.[22]
[22]PCB 114
Consequences
36 I accept that the plaintiff has suffered a secondary psychiatric injury which has been described by Dr Hooper as an adjustment disorder with mixed anxiety and depression of a chronic nature. It seems to me that the diagnosis is essentially consistent with the diagnoses made by the medical practitioners who have a specialist interest in psychiatry. There are some variations in the descriptive terms given to the diagnosis, however in the end the variations are not overly material.
37 The medical opinions, save for Dr Farnbach and Associate Professor Mendelsohn, paint a picture of a similar level of gravity of the psychiatric injury. The inference which I think is fair to draw from the opinions of Dr Hooper and Dr Weissman is that the plaintiff will continue to suffer symptoms of the psychiatric injury for the foreseeable future.
38 The plaintiff requires ongoing treatment according to Dr Hooper. In the absence of it she believes his condition will deteriorate.[23] The plaintiff requires the use of Avanza and Seroquel to treat the symptoms of his psychiatric injury.
[23]PCB 117
39 Dr Hooper obtained a history from the plaintiff of the symptoms which led her to make her diagnosis of the plaintiff’s psychiatric injury. He described to her that he was suffering from insomnia; persistent low mood; poor concentration and memory; social withdrawal; low tolerance to frustration; loss of interest/pleasure in life; loss of appetite; feelings of helplessness/hopelessness; lack of motivation; worry about the future and how he will cope; nightmares; fatigue and panic symptoms.[24] The symptoms which the plaintiff described to the medical practitioners who have a specialist interest in psychiatry are similar.[25] In addition, the plaintiff described having suicidal ideation.
[24]PCB 117
[25]Dr Weissman at PCB 76-77; Dr Tirpirneni at DCB 20E; Dr Farbach at PCB 130.
40 To the extent that Mr Simpson relied upon the plaintiff's use of illicit drugs and alcohol as being causative of the consequences contended for by the plaintiff I do not accept that to be the case. Despite the plaintiff's use of illicit drugs and alcohol he was able to maintain employment with the defendant from January 1995 to September 2007. Up until the time when he developed pain in his elbows he was engaged in heavy labouring work. He was able to cope with the work. There was certainly no evidence from the defendant to say otherwise. I think it is obvious that if he was able to work over those years in that sort of work that his use of illicit drugs and alcohol was not sufficient to interfere with his motivation and capacity for work.
41 I do not accept that the plaintiff’s use of illicit drugs and alcohol is of any particular relevance in my determination of whether the psychiatric injury meets the statutory test. Nor do I consider any of the plaintiff's past physical injuries to be relevant. The task I am set is to determine whether the psychiatric injury is productive of the consequences contended for by the plaintiff.
42 I propose to turn to the question of the plaintiff's loss of earning consequences first. I accept the plaintiff's evidence that he has not been able to work since September 2007, is unable to work now and will probably be unable to work in the future. The plaintiff gave some equivocal answers about his capacity to work in traffic control; as a security officer; a CCTV surveillance officer and gatekeeper.[26]
[26]Mr Simpson referred to each of those occupations in his address in drawing upon the vocational assessments at DCB 25-139
43 Apart from Dr Farnbach and Associate Professor Mendelsohn who were of the opinion that the plaintiff had a capacity for work despite suffering the psychiatric injury, the evidence of Dr Hooper, Dr Weissman and Dr Sutcliffe goes the other way. They are of the opinion that the plaintiff has no work capacity in suitable employment. Dr Sutcliffe is a specialist in occupational medicine, which I understand to be a medical specialty relevant to whether a worker has a functional capacity to return to suitable employment. She is of the opinion that the plaintiff does not have such a capacity by reason of the psychiatric injury.
44 I am satisfied that the plaintiff has suffered the psychiatric injury described by Dr Hooper. I am satisfied that the plaintiff's loss of earning capacity consequences are severe. The symptoms elicited by Dr Hooper and Dr Weissman can only be described as grave. The plaintiff needs medication in an endeavour to control his symptoms. He has not worked since September 2007, and according to Dr Hooper, Dr Weissman and Dr Sutcliffe has no capacity for suitable employment.
45 To make the basis of the foregoing finding absolutely clear the symptoms elicited by Dr Hooper appear to me to be grave and without any question, very disabling. In addition the plaintiff requires medication to moderate the effect of the symptoms of his psychiatric injury. Without counselling of the kind provided by Dr Hooper and medication his condition may well deteriorate. I think what resonates loudly from all of this is that it is unrealistic to contend that the plaintiff has any capacity for suitable employment.
46 The conclusion I have reached is that the plaintiff has no capacity for suitable employment, and that his loss of earning capacity consequences may fairly be described as being severe. On the basis of that conclusion I do not need to separately consider the plaintiff's pain and suffering consequences.[27]
[27]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
Conclusion
47 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
48 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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