Carter v Australian Health Service Alliance Pty Ltd

[2021] VCC 1378

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-04478

REBECCA AIMEE CARTER	Plaintiff
v
AUSTRALIAN HEALTH SERVICE ALLIANCE LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 4, 7 and 18 June 2021
DATE OF JUDGMENT:	22 September 2021
CASE MAY BE CITED AS:	Carter v Australian Health Service Alliance Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VCC 1378

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – psychiatric impairment – aggravation – pain and suffering and loss of earning capacity

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; 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; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Rowe v Transport Accident Commission [2017] VSCA 377; St Marys School v Askwith (2011) VSCA 90

Judgment:                  Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram QC with Mr A Saunders	Carbone Lawyers
For the Defendant	Mr D Churilov	Lander & Rogers

HER HONOUR:

1By Originating Motion, leave was sought to bring proceedings for damages for pain and suffering pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for psychiatric injury suffered by the plaintiff in the course of her employment with the defendant from June 2011 to March 2018 (“the work period”).

2The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” for a psychiatric impairment.  She relies on a psychological injury, including stress, anxiety, depression and/or aggravation thereof, and aggravation of Crohn’s Disease (“Crohn’s”).

3The physical consequences of a mental or behavioural disorder are to be taken into account only for the purposes of the definition of “serious injury” in paragraph (c) and not otherwise.[1]  On this basis, aggravation of Crohn’s was said to be a consequence of the plaintiff’s mental condition.[2]

[1]Section 325(2)(g)(i) of the Act

[2]See Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323 applied subsequently in Forssell v CIP Constructions (2020) VSCA 304

4Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

5The impairment must be permanent, in the sense it is likely to continue for the foreseeable future.

6Under the Act, the impairment must have consequences in relation to pain and suffering which are “when judged by comparison with other cases, in the range of possible impairments ... fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[3]

[3]Section 325(2)(c) of the Act

7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

8The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”.  Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[5] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.[6]  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[4] [1998] 3 VR 833

[5] (1995) 21 MVR 314

[6]        Mobilio v Balliotis (supra) at 846

9Winneke P, in Mobilio,[7] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[8]

[7]        Mobilio (Ibid) at 833

[8]Mobilio (Ibid) see Phillips JA at 858 and Charles JA at 860-861 to similar effect

10In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s325(2)(f) of the Act.

11Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[9]

[9] Section 325(2)(g) of the Act

12The plaintiff bears an overall burden of proof upon the balance of probabilities. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak[10] and Petkovski v Galletti[11] in reaching my conclusions.

[10](2005) 14 VR 622

[11] [1994] 1 VR 436

13The plaintiff swore two affidavits and was cross-examined on Zoom.  She also relied on an affidavit sworn by her mother, Gaynor Morris, on 27 May 2021, and an affidavit of her former boss, Kate Henstridge, sworn the same date.  In addition, the parties relied on medical reports and other material that was tendered in evidence.  I have read all the tendered material.

14During the hearing, further clinical notes were produced by Dr Frankel, the plaintiff’s former treating psychologist.  Also, Dr Freeman’s notes from February 2018 to February 2019 were added to the more recent notes that were previously available.

15The defendant’s case was that there was a significant pre-existing longstanding major depression and anxiety that predates the work period, postdates it and was exacerbated by unrelated persisting numerous life stressors.[12]  The principles in  Petkovski v Galletti[13] applied but it was also a matter of causation “being front and centre”.[14]

[12]Transcript (“T”) 9

[13]        Supra

[14]T9

The Plaintiff’s evidence

16The plaintiff is thirty-eight, having been born in July 1983.  She is single.  She is currently unemployed.

17After completing Year 12 in 2000, for the next two years, she did temporary work as a make-up artist.  In 2003, she worked as an air hostess for about six months. She then worked with HBA Insurance from about 2004 to 2011.

18In about June 2011, she commenced employment with the defendant as a member service officer.  Her work duties included undertaking queries from registered health funds, dealing with matters that included the cost of different medication and confirming whether hospitals billed the fund correctly. 

This application

19Throughout the work period, the plaintiff was subjected to constant bullying, harassment and mistreatment and was constantly subjected to antisocial behaviour.[15]

[15]May 2020 affidavit

20This conduct included, but was not limited to, demeaning offensive comments towards her, personal insults, unreasonable work requests/deadlines, and applying standards to her which were not applied to other employees.

21When she raised any concerns with her manager, Darren Hartney (“Darren”), as to his behaviour, she was shouted at and dismissed.  She was not supported in the workplace. 

22She detailed various allegations of bullying behaviour by Darren throughout the work period and, in particular, in February and March 2014.  Also at that time, she  recalled HR Manager, Julie Zucco (“Julie”), telling her to stop wearing makeup as she said the plaintiff was distracting the male employees.  She felt disgusted and upset at this comment.

23There were other occasions when Darren spoke down to her in front of colleagues and implied she was stupid.  In particular, in about June 2014, she attended a meeting with Darren and other colleagues, and when she tried to contribute, he told her simply to “shut up”.

24Further, Darren gave her unrealistic work tasks, such as needing to email him every time she went for lunch or went to the bathroom, a situation that did not apply to other team members.  She was the only person not allowed to eat at her desk.

25Throughout the work period, the plaintiff raised a few of her concerns with Simon McCarthy and made various complaints to the HR Department about Darren’s behaviour, but no action was taken and her complaints were ignored.

26On or about 19 March 2018, she was handed some papers from Darren accusing her of an allegation of fraud in relation to her filling in her timesheets incorrectly. She was advised she had a meeting on or about 21 March 2018 with HR and Darren, and she was given two days to provide a reason why she should not be dismissed.  She was never given any warning in respect to this issue or her work performance prior thereto.  She left work that day.  She received an ultimatum from the defendant stating if she did not attend the planned meeting she was not allowed to return to work.

27The plaintiff was suffering extreme levels of stress and anxiety and as a result attended her doctor, who wrote a letter saying she could not attend the meeting.  She ceased work for the defendant on or about 19 March 2018.

Treatment and consequences

28In or about 2013, the plaintiff consulted psychiatrist, Professor Varma, who diagnosed Major Depressive Disorder with anxiety state.  She last saw him in about 2014.

29On or about 25 June 2013, she was admitted into Delmont Private Hospital (“Delmont”) and attended the outpatient program.  The admission was due to her psychiatric condition and she had attempted to commit suicide.   

30For a short time, she consulted general practitioner, Dr Riaz Dewani, regarding her work-related injuries.[16]  She then consulted Dr John Bongiorno for many years.  He retired, and she was then consulting Dr Eleanor Freeman on a regular basis for ongoing treatment of the work-related injuries.

[16]Treatment from November 2010 to May 2014 - Forest Hill

31On about 18 February 2014, the plaintiff was admitted to the Delmont Day Services program due to a deterioration in her psychiatric condition and had since attended seven of the eight sessions.

32On about 12 May 2014, she was referred by Dr Dewani to clinical psychologist, Dr Roslynne Frankel, whom she started to see that year.[17] Dr Frankel thought the plaintiff required ongoing treatment, including medication and psychiatric review.  The plaintiff stopped seeing her in about 2018, as she retired, and she then consulted Dr Rita Lapidus regularly for ongoing psychological treatment.

[17]T33 – the plaintiff first saw Dr Frankel on 10 September 2012 (having seen another psychologist briefly) 

33The plaintiff had been consulting Dr Crantock, gastroenterologist, regularly for treatment of Crohn’s.  Since that diagnosis, this condition had been aggravated as a result of her stress and anxiety and as a consequence, this condition had further deteriorated.  She was required to take daily medication – Imuran and Pentasa, and have an injection of Humira into her stomach once a fortnight for the rest of her life.  Every time she required the injection, she became extremely anxious and became sick in her stomach.

34She was then being prescribed 100 milligrams of Pristiq daily; 10 milligrams of Temazepam nightly, and Prednisolone on an “as needs” basis. 

35She continued to suffer stress, anxiety and depression as a direct result of the injuries sustained in the work period (“the work-related injuries”).

36The plaintiff detailed a range of consequences which she confirmed in her recent affidavit.[18]  These included, difficulties falling asleep and staying asleep, issues with memory and concentration, lethargy, loss of confidence and sense of self identity, difficulties in her relationship with her mother, aggravation of her Crohn’s requiring further treatment, avoiding going out of the house and social contact, lacking enjoyment in activities she formerly enjoyed like going for a walk, loss of friendships and fear of being judged and not accepted.

[18]        Sworn on 19 May 2021

37Since her first affidavit, the plaintiff has continued to suffer ongoing symptoms of stress, anxiety and depression, and very considerable aggravation of her Crohn’s.

38She continues to see Dr Freeman, who prescribes Pristiq, 200 milligrams, and Temazepam to help her sleep.  Despite the Pristiq, she continues to be affected by severe symptoms of depression and despite the Temazepam, continues to have very poor sleep. 

39During 2020, she had a particularly severe increase in her depression.  She self-increased the Pristiq to 300 milligrams, but has now come back to 200 milligrams at Dr Freeman’s direction.[19]

[19]T176

40She had stopped seeing Dr Lapidus, as she was not finding her treatment particularly helpful.  During 2021, she started seeing consulting psychologist, Lyn O’Grady.  She does not believe she has consulted a treating psychiatrist since she stopped seeing Professor Varma.  She has not been able to afford psychiatric treatment.

41The plaintiff has continued to see Dr Crantock in respect of her Crohn’s.  She generally sees him once or twice a year, usually at times of severe symptoms.  Since ceasing employment with the defendant, the symptoms flare up at times of stress.  Her stress and anxiety levels have been considerably higher as a result of her work-related injuries and consequently her Crohn’s has been significantly more frequent and severe, and she requires ongoing medications.

42The major driver for the worsening of her psychiatric state during 2020 was the slow realisation and acceptance of the fact of her inability to work properly full time due to her work-related injuries.  During that year, her self-worth and confidence collapsed in the context of that realisation.  She began to experience suicidal thoughts more frequently and also began to self-harm by cutting.

43She continues to feel frequently suicidal and her motivation and energy levels have been severely affected by her depression and anxiety.  She often sleeps during the day, both due to lethargy and poor night time sleep.  She feels exhausted all the time.

44She feels depressed generally every day and often has difficulty getting out of bed at all, save to do some painting.  She continues to experience anxiety and panic attacks, though less frequently than when she was employed, and she continues to suffers a worsening of her Crohn’s at times of stress.  Panic attacks are generally categorised by hyperventilation and heart palpitations.  While she is anxious generally every day, she estimates she has panic attacks about once every couple of weeks.

45She has been working with Dr O’Grady on decreasing her alcohol consumption, as she had been relying on alcohol too much to cope with her anxiety symptoms. She has encouraged the plaintiff to keep a journal of her drinking and that has helped decrease her alcohol intake. 

46During 2019 and 2020, the plaintiff had problems in an abusive relationship which resulted in both parties obtaining intervention orders.  That situation increased her stress and anxiety while it was occurring and particularly when she had to go to court.  Fortunately, these issues have now finalised and she has now moved on from the additional stressors caused by that abusive relationship.

47The consequences deposed to in May 2020 continue.  She generally tries to avoid leaving the house where possible.  She used to love going to shopping centres and browsing, but now has difficulty being in shopping centres for long periods due to anxiety in public.  Her capacity for, and enjoyment of, activities such as going to the football, the pub or music festivals has been affected. 

48She continues with low energy, low mood, poor motivation and decreased concentration.  Sleep difficulties continue.  She has lost the capacity for full-time work and with that realisation has come feelings of worthlessness, helplessness and hopelessness.  She continues to experience stress and anxiety, sometimes to the point of panic attacks at what she might have considered in the past to be relatively minor stressors.

49She used to be houseproud and spent several hours every Saturday doing housework, but her capacity and energy for these tasks is now significantly decreased. She generally now has very considerably reduced energy and generally her house is very messy which upsets her greatly.

50Since she had been off work, she had been painting and managed to sell seven or eight of her artworks.  She hoped, over time, to be able to create enough high quality work that she could exhibit.  She found painting relaxing.

Work

51As a direct result of the work-related injuries, she struggled with new employment opportunities, as she was fearful she would be subjected to the same behaviour she experienced working for the defendant.  That made her feel stressed and anxious, as she may never find suitable employment.  She was fearful of her future and how she would provide for herself financially.[20] 

[20]May 2020 affidavit

52Her earning capacity had been destroyed.  She had tried to work in alternative roles after leaving the defendant; however, she could not maintain a job as a consequence of her work-related psychological injuries. 

53In the financial year ended 30 June 2017, she earned approximately $78,673.  As a consequence of her injuries, her earning capacity had been destroyed and she was currently unemployed and had to rely on minimal Centrelink benefits in order to provide for herself financially.

54In about May 2018 to April 2019, she commenced temporary employment as a project coordinator with Switch Resources (“Switch”).  In about April 2019, she started work with Vestas as a design and compliance officer and worked in that capacity for about seven months.

55In about December 2019, she commenced work with SPA Project (Coleman) (“SPA Coleman”) as a communications coordinator, where she worked for about three months as she could not continue due to her psychiatric injuries. 

56In her second affidavit sworn 19 May 2021, the plaintiff gave more detail of the effect of her work-related injuries on subsequent employment.

57She was employed full time as a project coordinator for Switch.  She was employed on a temporary contract basis and managed to complete the contract.  While she managed to last to the end of the project, she found during her time there she had difficulty focusing on her work, completing work tasks and working effectively.  She had difficulty coping with full-time hours and the driving required.

58After the completion of that project, she continued on with Switch for a few months performing administration work.  She understood she might have been able to stay on beyond April 2019, but chose not to pursue that option as she had not been coping over the preceding year.

59She found that during her year with Switch, and particularly towards the end of the project, she was not coping mentally and was getting rundown and sick.  The  main contract with Switch for which she was engaged finished up in about January 2019, and then she did administrative work there until about April, at which time she chose not to continue because she was not coping.

60By April 2019, she had sourced another role with Vestas as a design and compliance officer on a full-time basis.  She was ultimately let go and was told she was not meeting the employer’s expectations.  Again, she had struggled with that full-time role.  She had struggled with concentration and motivation and again was not coping.  She pushed herself as hard as she could with full-time employment, but ultimately found the difficulties she was having with her work showed up in her work performance and she was let go.  As well as difficulties coping with work, and hours, she was having quite a bit of time off as a result of the flare ups in her Crohn’s symptoms.

61Her next role was with SPA Coleman as a communications coordinator on a full-time basis.  She was only able to cope for about three months before she was again let go.  Again, she found she was having difficulty coping with the work and the full-time hours as a result of her injuries, which led her to being far less effective than she had been in her roles pre injury.  She had not found suitable employment since that job due to her work-related injuries.

62She had applied for work, including full time, largely through Seek, and did get an interview with John Holland as a project administrator – the only role for which she received an interview.  She was actually offered that role, but declined it when she found out the expected work hours, namely 7.00am to 6.00pm on weekdays and work on some Saturdays.  Given the difficulties she was experiencing with fewer hours at SPA Coleman, Vestas and Switch, she did not think she could cope with these hours at John Holland. 

63Her experiences applying for and refusing John Holland, made her really focus on the difficulties she had working full time since she left the defendant in March 2018.  As a consequence of the severity of her symptoms and with the knowledge she had tried her hardest to maintain full-time employment in the last three years, she had been forced to accept she does not have the capacity to sustainably and reliably perform full-time work due to her injuries. 

64While considering the John Holland role, she spoke to her mother and general practitioner,[21] and really came to the view that as a consequence of her work injuries, she no longer had the capacity to sustainably and reliably perform full-time work. She was unsure if she could even cope sustainably and reliably with part time work at present due to her work related injuries.

[21]Not mentioned in any clinical notes or report

65With each of the roles at Switch, Vestas and SPA Coleman, she tried her best to presently professionally at work, though away from work she was experiencing what she considered to be very severe consequences of psychiatric injury when the work became even moderately stressful.

66At times of stress in those roles, she experienced panic attacks often on the way to work, anxiety and even vomiting.  Those symptoms had decreased, although not abated, since she had been out of the workforce.  It was her belief, based on her experience in these jobs, that her capacity for coping with stress had been severely diminished as a result of her work related injuries.

67Her anxiety and lack of confidence was clear to her in the three jobs she attempted after ceasing work with the defendant.  She had been so overly criticised during the work period that she could not relax into any of her post-injury roles and struggled with concentration and anxiety, and her confidence in her abilities was greatly affected.

Cross-examination

68Lengthy, detailed cross examination largely focussed on the plaintiff’s psychiatric condition before the work period, during that time and subsequent thereto.

69In her May 2020 affidavit, the plaintiff described her medical history as follows:

“ln or about 2005, | was subjected to family violence. As a result, | consulted a Counsellor/Psychologist for a short period of time only and l recovered well.

In about 2014, | was diagnosed with Crohn’s disease. I continue to consult Dr Luke Crantock as required … .”

70The plaintiff accepted this paragraph suggested that there were no events of any significance from about 2005 to 2011, she had no significant matters affecting her mental health and that Crohn’s commenced within three years of her employment with the defendant.[22]

[22]T24

71She agreed she did not describe any life stressors outside of work after she started with the defendant.  She disagreed that from June 2011 there were things unrelated to work life events that were significantly impacting on her mental health.[23]

[23]T25

72While she agreed that the affidavit was to give a full complete detailed picture to the reader of her pre injury condition, she stated – “I do believe I was a complete different person before I started employment with HAS.  I was outgoing, I had a life, I had good relationships around me.”[24]  Before this employment, there was nothing significant impacting on her life.[25] 

[24]T26

[25]T27

73She disagreed that after she started work with the defendant there were things  happening to her outside of her work to do with her personal relationships that nothing to do with work events.  She did not believe she was suffering from any sort of mental problems when she started work with the defendant and she did not believe there was anything sustained outside of work.[26]

[26]T27

74She could not recall issues of note in 2009, when she became depressed after breaking up from her partner, as Professor Varma reported.[27]  While he noted in that report that he first saw the plaintiff in February 2013 for a complaint of anxiety and depression for two years, she would not say she had depression from February 2011 – “more anxiety due to, like, the pressure – the pressure of work and performing.”[28]

[27]June 2018 report to the Conciliation service (no mention of work issues) 

[28]T28; she started with the defendant in June 2011

75She did not believe she had depression or anxiety before she started with the defendant.  She was not on Lexapro in 2013, as Professor Varma noted.  To her knowledge, she had it back in 2005 for six months, but she did not believe she was on it after that.[29] 

[29]T29

76While Professor Varma noted that the plaintiff saw a psychiatrist two years earlier, she could remember seeing one maybe three times at Chadstone Shopping Centre.  She did not recall she was depressed about the 2009 breakup with her partner, it was just she was getting anxiety.  She did have a cat that died.[30] 

[30]T30

77Her ex-partner, Michael Tommy, was mentally and physically abusive towards her back in 2005.  The “family violence” in her affidavit related to him.  He was a bit controlling and did actually push her once.  Her partner from 2009 to 2011,  Matthew Tupro, was not abusive whatsoever.[31]

[31]T31

78She denied she told Professor Varma that in September 2012, she had another mental breakdown after she broke up with another partner and moved out herself.  She did break up with Matthew at that stage but thought that was more towards the end of 2011.  She did not recall having a partner for quite some time after that. While denying a breakdown, she struggled sleeping and she was not sure if she was depressed but she knew she suffered anxiety.[32] 

[32]T32

79The plaintiff accepted the accuracy of Dr Frankel’s notes.[33]

[33]T33

80Dr Frankel’s note on 10 September 2012  “broken up with partner after three and a half years” related to her breakup with Matthew which was closer to the end of 2011.  She did not necessarily agree that that break up was still then affecting her or that it was at the front of her mind.[34]

[34]T34

81This was the first session, “when they try to get a background research”.  There was no reference to work “because it was background”.  She disagreed that her feelings noted at that time were a result of the breakup with Matthew.  The feelings of depression, emptiness, helplessness and not deserving anything good was to do with “where [she] was in life at the time”.  She was getting anxiety and struggling to sleep.  She agreed she did not tell Dr Frankel that situation had anything to do with work “in that particular paragraph,” but disagreed her situation then did not have anything to do with work.[35] 

[35]T35

82Dr Frankel was asking her about her background and previous relationships.  “Generally, the first consultation they do not go through information about work, they actually just get a history of how many people are in the family, whether the parents have remarried and the last relationship.”  She knew that because she had seen psychologists and they always start off with a background discussion.  She agreed, when being asked these background questions, she did not volunteer any information about work, even though she knew at all times she was feeling that way about work.  She did not mention work because she was not asked about it.[36]

[36]T36

83She did remember taking Valium and drinking, and tried cutting herself after Matt phoned to say he had a new girlfriend.  That would have added to her work issues. It was another thing that would have added to the anxiety.  She agreed there was no reference to any issues with work in this note, [37] although there was a reference to her working at AHS.  It was an accurate description of her symptoms at that time – difficulty sleeping and turning into a nasty drunk, depression, helplessness and emptiness.[38]

[37]T37

[38]T38

84She had a day admission to Delmont Hospital on 17 April 2013.  The numerous presenting issues noted accorded with her recollection of herself at that time.  The referral would also contain that information.[39]  While admission notes at Delmont on 17 April 2013 did not mention work issues – “it just stated the facts”.[40]

[39]T39 – anxiety, negative thoughts,  vomit, feels empty, had suicidal thoughts but will not act on them

[40]T79

85The Delmont records set “reports history of mental health issues starting from twenty three years, ex-partner abusive”.  She agreed that was 2005 but denied that she focused on that relationship.[41]

[41]T40

86Under “employment history”, the plaintiff agreed there was nothing about her work causing any mental health problems.  She disagreed she did not say anything about work because it was not affecting her – “it was background”.  She disagreed that the symptoms described were not related to employment.  She disagreed there was a longstanding problem that had commenced prior to the work period and continued during that time for unrelated reasons.[42]

[42]T41

87She attended a group session at Delmont on 2 August 2013 as part of an ongoing weekly program.  She agreed at that time, her mood would have been fluctuating. She denied, as the note set out, she had seen a psychologist for four years, 2009 to 2013.  Her family history was inaccurate, because her father had never had depression.  She agreed she had a past history of self-harm, arm cutting and overdose by Valium in August 2012.[43]

[43]T43

88She first saw general practitioner, Dr Dewani, at Forest Hill, on 6 November 2010.  His note:  “Rebecca continues to see psychologist … going to be – referred for hypnotherapy to a psychiatrist in Frankston,” was not accurate.  She did not remember having a discussion about general issues of anxiety and relationships, she just had a conversation with him “every day like general conversation”.  She was not referred to a hypnotherapist and could not recall being referred to a psychiatrist in Frankston.[44]

[44]T45

89She could not recall seeing a psychologist in 2010.  She just remembered starting with Dr Frankel in September 2012.  She did not recall discussing anxiety and relationship issues with Dr Dewani in late 2010.  She was not having relationship issues in November 2010, because she was still in a relationship with Matthew “and it was fine”.  Essentially, the whole entry did not ring true.[45]

[45]T46

90She could not remember taking Lexapro in November 2010.[46]  Dr Dewani’s entry of 31 January 2011 – “has gone off Lexapro for two months”[47] did not ring a bell.  She did recall having Lexapro in 2005 for a few months, but had no recollection of taking it at the start of 2011 and stopping it – “because she was doing fine”.[48]

[46]T47

[47]T50

[48]T48

91She could not recollect discussing Matthew’s alcohol issues with Dr Dewani.  She could not remember having a long discussion of supportive counselling on 31 January 2011, because “that doctor was constantly talking to [her] for ages, like he would just talk forever.”[49]  She did not know what his note “will see a different psychologist now” meant.  She was yet to see Dr Frankel, whom her mum had suggested.[50]

[49]T48

[50]T49

92While disagreeing with most of Dr Dewani’s notes, the plaintiff then accepted their accuracy.[51]

[51]T50

93She accepted Dr Frankel’s note of 14 September 2012, which set out:  “Had a meltdown Tuesday, Gaynor (her mother) concerned … okay at work.”[52]  As she then noted, they discussed the plaintiff meeting a new guy, Simon – “Stop over-analysing judging self, negatively over-thinking.”[53]  She could remember that discussion.  She accepted there was no mention in the note of work causing her mental problems but disagreed in the sense that her overthinking was also to do with constantly thinking Darren did not like her “that would have been part of it”.  She agreed a big part of it was her make up and personality, because she took offence with people who did not like her but she disagreed she over thought things and ruminated on them.[54]  

[52]T50

[53]T51

[54]T52

94She could actually remember on 14 September 2012, she phoned Ros (Frankel) from her car when she was upset, having done this on many occasions.  The fact that she said she had had a “meltdown” and “okay at work” could mean that had happened.  “Okay at work” meant she turned up at work.[55]

[55]T54

95On 4 October 2012, Dr Frankel noted strange dreams which the plaintiff could not recall.  There was also a list of complaints; depression, global fatigue, want to be by myself, moods up and down, et cetera.  It was not correct that the plaintiff did not mention work issues that day.  She denied that was because her condition did not have anything to do with work.  She disagreed she neglected to say they were work related.  She felt anxious and was struggling to get up in the mornings to go to work.  She felt stressed and anxious going to work.  She did not have any energy because she was not sleeping very well either and she was scared of her boss, because he was constantly putting her down in front of people and she was scared of doing something wrong.  She did tell Dr Frankel this.[56]  

[56]T55

96She also had problems that Darren put rules on her that he did not put on anyone else.  She told Dr Frankel this but she did not write it down.  That day, she told Dr Frankel, not only was she having the symptoms, but that they were to do with her boss.  The quote “if I ever get anything good I destroy it” was “that is an overall like in the sense of if I ever get anything good I seem to destroy it”.[57]  It is to do with work – “if I ever, you know, got an opportunity to run a project, I just seemed to always stuff up”, but she then agreed that had nothing to do with her boss.[58]

[57]T56

[58]T57

97There was also a discussion with Dr Frankel about abuse the plaintiff had been exposed to by her half-brother.  She sought treatment in 2005 because of that, which happened when she was a child.[59]  She had felt abandoned and unsupported by her mother in the context of this issue.[60]

[59]T57

[60]T58

98Dr Frankel wrote to Dr Wong, the plaintiff’s general practitioner, after six sessions.[61]  In that letter dated 7 October 2012, she mentioned the plaintiff trying to cut herself and overdosing on a combination of Valium and alcohol in the context of the phone call.  The plaintiff agreed “that was part of it”.  She agreed nothing was mentioned about work.  That was all that had been discussed within six sessions.[62]  She agreed there were no work problems mentioned causing mental issues – “Not significantly like pointed, yes, correct … It’s – because with this sort of letter they’re not going to put every single problem that I have in a single letter.”[63]  She denied, in the scheme of things, work was not as significant as those issues Dr Frankel had identified – again, explaining these were “background” matters. Despite the absence of any work references, she maintained that she had mentioned work issues to Dr Frankel to that point.[64]

[61]T58

[62]T59

[63]T60

[64]T61

99Dr Frankel noted on 7 November 2012, a month after the letter, a discussion about a man called “Angelo” and the plaintiff’s fears of abandonment and feeling like “crap”, drinking and texting her sister “I want to kill myself”.[65]  She agreed there was no mention of work in this note.  She denied that presentation had nothing to do with work.  She told Dr Frankel about ongoing work issues.[66]  She disagreed that wanting to kill herself had nothing to do with work.[67]

[65]T62

[66]T63

[67]T64

100She had discussed with Dr Frankel whether she was bipolar, but could not remember Googling it.  She agreed she was obsessive with cleaning.[68] 

[68]T65

101On 9 November 2012, Dr Frankel wrote to Dr Dewani, advising that the plaintiff was currently working through the trauma she had experienced as a child and she was provided with counselling for that.  The plaintiff explained that was part of it, but it was more to do with her mother, being abandoned by her in the context of that childhood experience. Dr Frankel also noted, in addition, problems with relationships, particularly with males, was being addressed, as well as the use of alcohol to relax. 

102The plaintiff explained the reference to “males” would be all relationships.[69]  “Absolutely” it was more than romantic relationships. “Specifically”, there was nothing at all mentioned in that note about her work and her boss.[70]

[69]T66

[70]T67

103On 15 October 2012, Dr Frankel noted the plaintiff complained of neck aches and headaches due to bad posture on the computer.  There was mention of the cutting episode.  The plaintiff explained, “After a conversation with an ex-employee Gail, I was upset about work and then this was also something that added to it”. She agreed there was nothing about that in the note.  The note set out Matthew told her about his new girlfriend, she took Valium, she took alcohol and she passed out and she was “agro”.[71]

[71]T75

104There was also then a conversation about Sarah, her older sister.  The plaintiff had sent Sarah a text while drunk.  Dr Frankel noted the plaintiff was angry about the way Sarah treated her and that she had said to her she was dead to her.  The plaintiff explained Sarah “always said that ten times, it is just a phrase she has, and then she talks to [her] the next day”.  This comment would not actually get to the plaintiff as it was always something Sarah would just say.  The plaintiff would just laugh at it – “but it’s quite dramatic, Sarah was an actress.”[72]

[72]T77

105The plaintiff confirmed she broke up with Matthew because she was not interested in getting married or settling down.  He was a lovely guy.  It kind of surprised her he was able to jump into a new relationship really quickly.  While she agreed it was a dramatic response to his phone call, it was just shock, but that particular night she was speaking to Gail, a previous employee, because she was upset about work, and then she got that phone call and “it just contributed to it”.[73] 

[73]T78

106Even though she had not mentioned it the previous day in court, she did remember it because she had a journal and she wrote it down.  She always mentioned to Dr Frankel about work stressing her out and something Dr Frankel used to say, “look for other work … just ignore him, just don’t let it affect you”.  “Absolutely” she told Dr Frankel every time she saw her, work was a problem, the boss was a problem, “without fail”.[74]

[74]T78

107On 15 October 2012, Dr Frankel also noted “stop looking for blame”.[75]   The plaintiff started to think she was not good enough.  That was not in relation to her romantic relationships only, it was actually in relation to work, to her ex-boss, because he was never happy with her and he was always putting her down so she lost her confidence.[76]  She agreed Dr Frankel told her not to catastrophise.[77]

[75]T80

[76]T81

[77]T82

108The plaintiff interrupted cross-examination and wanted to point out the techniques that Dr Frankel explained were a way of coping at work “but for some reason she hasn’t put slash work, but they were things where I felt like I couldn’t perform, like I wasn’t good enough and I couldn’t please everyone or please him, so that’s something that she taught me to do, and especially when I went to the bathroom, just to, you know, just strategies to be able to cope.”  Dr Frankel was giving her techniques outside of home.[78]  The plaintiff understood, however, there was no reference to work at all in the note.[79]

[78]T83

[79]T82

109While on 23 October 2012, Dr Frankel noted the plaintiff’s father gets depression as well, he has not been diagnosed with depression, he just gets down.[80]

[80]T84

110Dr Frankel’s note “I can’t please everybody, get exhausted”, meant:

“Cut meetings short, back up phone call, tell someone where you’re going – yeah, I cannot please everyone, just in general like whether it’s my father, whether I don’t see him enough, or whether it’s even at work, I can’t please my boss, I can’t please everyone, I’m not perfect … I’m a people pleaser, so I felt exhausted.”[81]

[81]T85

111On 31 October 2012, Dr Frankel mentioned another sister, Amanda, and significant problems she had been causing in the plaintiff’s family.  The plaintiff described her sister as  “borderline” and a “compulsive liar”, but it was more the effect it had on the plaintiff’s parents that upset her.  Amanda had made up stories of being raped, being an attention seeker.  She sent the plaintiff abusive tests.  The plaintiff was able to block her number.  She agreed it was obvious that situation was affecting her mentally.[82] 

[82]T86

112There was also a note about “Rebecca worried about becoming a personality disorder”.[83]  She was, because she thought it was an hereditary disorder.  She wanted to understand the way she is.[84] 

[83]T86

[84]T87

113There was also a note about “Angelo” calling every day and that she was trying to jeopardise the relationship, pushing him away a bit.  It was pretty full on, the relationship with Angelo, but she was still “talking to other guys, so it was not as if I was concentrated on”.[85]  The split up with Angelo did not completely upset her, because she already had “another guy on the go”.[86] 

[85]T87

[86]T88

114When seen by Dr Frankel on 23 January 2013, the plaintiff was back with Angelo, but she was still seeing another guy periodically.  She felt pressure in that regard from her mother because her mother was quite old fashioned.  The plaintiff did not recall saying – “getting fixated with having a baby”.  She might have been getting a bit clucky as she had friends who were getting pregnant and it looked so glamorous.[87]  She had said “I don’t want to work, I want to be home with a baby”, because “if I was to have a child I’d want to have the option to be able to stay home with the child when they’re young”.[88]

[87]T89

[88]T90

115The plaintiff has had relationships with two men called David.  She dated one for under a year, who was fine, and a different one, David Panton, “the one [she]) got an AVO on, and he got one on [her]”.[89] 

[89]T91

116When Professor Varma saw the plaintiff on 27 February 2013, he noted she was depressed and emotional, but became anxious with or without a trigger, her sleep was not good and she always felt tired.  She agreed she was stressed out.  She had told him she had lost confidence and was disappointed with the way her life was going and that she had withdrawn from social life and had ideas of hopelessness and self-harm, and thoughts of death.[90]

[90]T92

117In her letter to Dr Desai in March 2013, Dr Frankel noted the plaintiff continued to present with depression, some anxiety, as well as symptomatic symptoms and making slow and steady progress in a number of areas, and she dealt with the abuse she had suffered as a child, which was extremely painful and was still in the process of dealing with other issues, including her relationship with males, self-esteem and confidence.  Her drinking had decreased significantly. 

118Dr Frankel also noted “Rebecca’s workplace has been very supportive, and she’s been working four days a week instead of five”.[91]  The plaintiff would not have told her that, she would have told her she was attending as an outpatient at Delmont for one day a week, which she did for a year and a half, and work allowed her to, so she could continue to get assistance.[92] 

[91]T92

[92]T93

119With the Delmont day program, she would see Professor Varma “off the book” instead of going through his consulting suites, and he would have a quick catch up with her before the actual group session.  Work allowed her a year and a half off to pursue treatment at Delmont.  She did not tell Dr Frankel the workplace continued to be very supportive for that reason.  “She’s obviously put that in there, because she’s – that was her opinion”. 

“To get that day off, I had to go through a lot, and also there was the pressure of obviously your medication’s not working, maybe they should try something else, and there was that constant pressure to get better, because obviously, you know, there’s a time cycle where they are playing with the dosages, but you have that extra pressure to get better, so it was – they were questioning my medication … My boss, and also Julie.”[93]

[93]T93

120The plaintiff did tell Dr Frankel about this added pressure, “absolutely”.[94]

[94]T94

121At the start, Julie had to speak to Darren.  He was not happy, but because she also has the HR part in her role Julie said “look, this is going to help, and this is what the doctors recommend”.[95]  The day program went for eighteen months.  The plaintiff was vomiting eight times a day at work and was not coping.  She was sick at work because it was like she was having extra time off and they did not like it. None of these things were in the letter because Dr Frankel was writing to the general practitioner.[96]

[95]T94

[96]T95

122On 18 March 2013, Professor Varma noted “she’s working 38 hours, her mother also feels she’s going well”.[97]  The plaintiff had actually been working more hours because she stayed back and she was really trying to put in the hard yards.  In the eighteen months of counselling, she thought that she worked four days a week, but more hours.[98]

[97]T96

[98]T97

123The plaintiff was not that close to her mother at that stage.  She did not actually tell her the truth – “like how she was actually feeling”.[99]

[99]T97

124The plaintiff denied that on 3 April 2013, shortly prior to the day admission to Delmont, she told Professor Varma that more stability was happening around her. She believed this was the time she was doing the day course group and it was helping her to be able to go to a supportive group.  Everything was then fine with David.[100]

[100]T98

125On 15 June 2013, Dr Frankel noted “David judgmental … putting pressure on Rebecca, bickering made [her] think back to earlier relationship, feeling suicidal” and “cultural differences emerging… Time management issue - don’t do it on purpose.”[101] 

[101]T99

126The plaintiff did not remember “the whole cultural thing”.  She did not remember feeling suicidal then.[102]  She was obviously down, because it was the pressure on her and the control from David.  She did not really accept she was complaining about feeling suicidal.  Dr Frankel asked her “have you thought about it” and the plaintiff obviously said “yes”.[103] 

[102]T99

[103]T100

127When it was suggested there was no mention of work, she explained “it’s got time management issues, don’t do it on purpose”.[104]  While it was noted “David doesn’t come to my place very much, this tells me you’re not ready for a relationship”, that was not referring to David, that was obviously time management in every day, whether it was to do with work, but it would not be in relation to David – “it’s all impacts, it’s not that you feel suicidal over one thing, it’s everything, you know, being controlled, and sort of”.  This was only ten days before the inpatient admission at Delmont.[105]

[104]T100

[105]T101

128On 22 June 2013, Professor Varma noted:

“She hasn’t been feeling well, flat, tired, sent back home from work.  The partner also gets very anxious and that is not good for her.”[106]

[106]T101

129The plaintiff recalled saying this. She agreed her partner asked her a lot of questions and became stressed if she had time off and then when she would get sent home, he was worried they would fire her over having a lot of time off.  She was sent home on a regular basis starting around 2012.  She would vomit eight times a day, she would get very tired and emotional, and her boss would see her and send her home on a regular basis because she was not allowed to be emotional at work.[107]   

[107]T102

130Vomiting was daily, but she was getting sent home maybe once every couple of weeks as early as 2012.  There was one time around then that she had a catnap on her lunch break in the massage room, and Darren found out and sent her home because he did not want to have her sleep in the lunchbreak.  He knew she was vomiting because everyone could hear. He would send her home every couple of weeks, but the vomiting was daily.[108]

[108]T103

131She agreed there was no mention in this note of her boyfriend asking her questions about work.  She denied she told Professor Varma at times this boyfriend reminded her of past abusive relationships, because he was never aggressive, he was quite the opposite.  She did not believe that relationship was triggering past relationship memories and making her feel tired, stressed and depressed.[109]

[109]T104

132On her inpatient admission to Delmont from 25 June to 13 July 2013, it was recorded she was admitted for worsening depression and anxiety.  The history of being diagnosed with depression four years ago was incorrect.[110]  She also did not say she had been maintaining reasonable level with medication since 2009.  She was on medication when she went in, which Professor Varma put her on.  There was a time in 2005 she was on medication for a short period and then Professor Varma put her on medication.[111]

[110]T104

[111]T105

133As was recorded by Delmont, the plaintiff was working full time with Australian Health Service Alliance Insurance Company.  She did not mention anything about work problems because that was an initial history from a nurse, just a staff member, who was actually trying to get her into the facility and make sure her health fund would pay:  “They’ve probably grabbed that information from somewhere else.”[112] 

[112]T107

134A Delmont progress note of 4 July 2013, while an inpatient, detailed a morning therapy session where the plaintiff spoke of a difficult and abuse relationship from her past and her fears and worries it might happen again.  She would have opened up about her previous relationship.  She was referring to 2005 and she was worried that it would happen again, but it was not something that was making her anxious.[113]  But it was not making her vomit or anything – “like it was not impacting her that way”.  She knew she was vomiting every day.  She was anxious and could not keep anything down.[114]  She was struggling being an inpatient in hospital, and it was scary, and she did not want to leave her room and missed her mother.  It had a bit of a stigma.[115]

[113]T108

[114]T109

[115]T110

135In the group session of 8 July 2013, she appeared somewhat anxious and hesitant and especially spoke of her difficult relationship with her sister – perhaps Amanda.[116]

[116]T110

136The plaintiff did tell someone at Delmont about work, Pauline, another woman attending. She also told Professor Varma, who was head of psychology at Delmont, because she was scared of having time off because she thought she would get into trouble, so he would write her letters.[117]

[117]T112 - no letters have been produced in relation to this issue

137It was not correct, as was recorded in the discharge summary on 13 July 2013, that she denied any major issues or concerns.  She was only talking to a nurse.  She had no idea where that statement came from.[118] 

[118]T114

138On 2 August 2013, as part of the day admission at Delmont, it was noted she was currently working four days a week.  She denied then saying that she was settled, her mood was slightly low, anxious and she desired skills in managing it.  She would have been flat and still vomiting on a daily basis and that is why they suggested the day program.[119]  She told Dr Frankel that she vomited every day because she was worried about her getting so skinny.  She also told Professor Varma and “they all thought it was to do with anxiety”.[120]

[119]T116

[120]T117

139In 2016, the plaintiff had an occasional consultation here and there with Dr Frankel, but not regular. A gap in treatment from 25 June 2016 to 20 April 2017 “rang a bell”.  The plaintiff was struggling financially. She was not quite sure if there had been a gap in treatment between 31 July 2014 and April 2015. She went from seeing Dr Frankel weekly, sometimes twice, and then cutting down.[121]

[121]T118

140The last psychiatrist she saw was Professor Varma, whom she saw after 2014 at Delmont for daily sessions, although he reported he last saw her on 24 June 2014.[122]

[122]T119

141She accepted the last time she saw Dr Frankel before ceasing work on 19 March 2018 was on 4 November 2017.  The next visit is 30 August 2018.  By that stage, her claim had been lodged.[123] 

[123]T120, 4 April 2018

142She denied going to see Dr Frankel on 30 August 2018 in the context of her rejected claim for compensation after the conciliation.  Dr Frankel’s note on that attendance started with:  “WorkCover wants to take Rebecca’s case to court, R was anxious in conciliation when she saw her ex-boss.” 

143She told Dr Frankel what was going on, but that was not the only reason she went to see her, she was still unwell.  She went there after a gap in treatment because she believed that was when she got another mental health care plan from Dr Bongiorno, as you could only have so many sessions over a period of time.[124]

[124]T121

144She was unaware that on 21 March 2018, two days after she finished with the defendant, Dr Bongiorno certified her medically fit to resume her normal duties.[125]  She had documentation that said he thought she was unfit.  She did, however, recall this certificate when shown it.  She had a couple of certificates from Dr Bongiorno to continue working, to be employed.[126] 

[125]T126

[126]T127

Re-examination 

145She had “evidence” of reporting on regular occasions work-related issues to Dr Frankel.[127]  She stopped seeing Dr Frankel in 2018 or 2019 because she could not afford treatment.[128]

[127]T147

[128]T148

146She confirmed “absolutely” the history and diagnosis set out in Dr Frankel’s July 2018 report and the “specific contributors” listed.

147As the Delmont notes recorded, she received calls from Julie Zucco, as well as HR, that she would not be getting a pay rise due to having so much time off.[129]  She was having time off work because she was vomiting.  She was stressed and anxious going to work as she was getting rundown and taking too much time off, getting sick constantly.  Julie would constantly mention it was costing the company money, and maybe to have her medication checked because it was obviously not working.[130]

[129]T148

[130]T149

148Her response to the suggestion in cross-examination that issues were mainly non-work related, was that she believed there was a fear of her boss, that was stressful, going to work, having to go there and not wanting to be there.  She was scared of him.  She was always talking to Julie and complained to her many times.  She did not believe it was just because of relationships, “and yes that can impact on her”, but she was vomiting eight times a day at work, and of course she was going to feel tired.[131] 

[131]T149

149She “absolutely” remembered, as the Delmont group session entry on 24 February 2014 set out, that she was pleased with herself after being assertive with her boss at work.  She “absolutely” remembered that, and when she came out of Delmont, she wanted to stick up for herself and pulled her boss into a meeting and said to him that she felt like he talked down to her the way he spoke to her.  He said “it’s all in your head, you’re the one who went to a mental hospital”.[132]   She complained of these things to Julie Zucco in HR.[133] 

[132]T156

[133]T157

150She remembered “absolutely”, as was noted at Delmont on 15 July 2014, that she attended a CBT session when, at certain times, her attention wavered and she stared blankly at times.  She began to speak at length about her boss but responded well to containment.  It was getting extremely bad and she was getting scared, and vomiting at the thought of going to work.  He was belittling her and said to her “you come across like a bimbo, you’ve got to be mindful the way you speak”.[134] 

[134]T157

151When she started to get emotional, he said “do not show your emotions at work” and then he would send her home.  She was complaining to Julie about these things.  She was scared of going to work because Darren was intimidating her.  He was like constantly putting her down.  It was like a game.  He was putting fear into her.[135] 

[135]T157-8

152She was able to keep working until March 2018 despite significant treatment in 2013-2014, because she “got more and more sick and that’s when [she] got diagnosed with Crohn’s and that’s to do with the vomiting”.  She agreed the real peak of her psychiatric problems was in 2014, and then after that, Crohn’s, because it has been brought on by the stress.[136] 

[136]T160

153This bullying behaviour at work continued until the very end.  It continued with intensity.  She even tried to commit suicide one night because she did not want to go to work, but she still went to work the next day.  Her mum knew about it.  She would have told Dr Frankel.  That suicide attempt was overdosing and also cutting, and also would have been around 2017.[137] 

[137]T161 – no mention in any clinical notes or mothers affidavit

154Darren would send her home after she was crying in the bathroom.  It happened five or six times right near the end, until she finished there.[138]

[138]T163

155The plaintiff had phone calls from Julie during this time, saying “we will pay you out, if you want to resign” and they offered her twelve weeks.  The plaintiff also told Dr Frankel about that.[139] 

[139]T162

156The plaintiff frequently felt unwell.  Nausea, bloating and vomiting always came on at work during the day, being stressed, having her boss talk down to her.  That led to the diagnosis in April 2015 of Crohn’s.  She still has Crohn’s after having left the defendant.[140]

[140]T163

157She could “absolutely” recall, as Dr Frankel noted, that on returning to work from Delmont, she had a meeting with Darren which was extremely distressing.  She was trying to stick up for herself.  She went to Julie and reported him constantly. Julie also came to the meeting, but they wanted her to resign.  Dr Frankel had noted, also, that Darren said she was lucky she was paid while she was in Delmont.[141] 

[141]T164

158Dr Frankel noted Darren telling the plaintiff not to show her emotions.  He had also told her not to cry.[142]

[142]T164

159When asked whether she had told Dr Frankel all about these issues “in one hit”, the plaintiff said “it was like ongoing forever”, like the whole time that she was going to see her, because she would even go to her car and call her in tears.  The plaintiff constantly spoke to her about it and she was trying to help her to not allow it to get to her and to bring her down, but she was scared and anxious, and when she would go and move her car she would call Dr Frankel, and she would bring the plaintiff back into the moment and try and calm her down.[143]

[143]T165

160She agreed the references “documented by Rebecca” in Dr Frankel’s report were a list of dates and times she told her things had happened.  She would have had them recorded in her book that he actually did the stuff.  Yes, “absolutely” she told Dr Frankel at the time they happened.  “Absolutely” she had a diary that was not in her possession then, but “we do have a copy of the notes”.  She has the original diary.  She denied she gave Dr Frankel a list of the issues.[144] 

[144]T166

161Probably about six months into working with the defendant,  her issues with Darren started and they continued to the very end.  She did tell Dr Frankel and Julie about the issues at the time.[145] 

[145]T168

162Having been cross-examined at length about boyfriends and relationships, she  was asked how did what happened at work impact on her anxiety and depression in comparison to those matters:

“I got so anxious obviously going to work, I lost my confidence, and I would, as I said, that would make me vomit constantly, I didn’t want to be there … and I could not do anything right.  And I was scared and it just kept building up.”[146] 

[146]T169

163She confirmed the Crohn’s flared more frequently at these times.  Other than Crohn’s, the only explanation was anxiety.  She did not have any other medical problems, but then said she had been diagnosed with severe reflux, which started just before the Crohn’s.[147]

[147]T169

164It was correct that she was told by Julie and Darren more than once when she gave them certificates that she would lose her job if she continued to take sick days.  She presented with sick certificates at work, literally she would say 99 per cent of the time, when she was sick.  There would be “heaps of certificates” she brought to work.  Professor Varma prescribed her sleeping tablets because of her anxiety about going to work.[148] 

[148]T170 – not mentioned in his reports

165The plaintiff confirmed other bits of history in that report about being stressed and anxious settling at night, anxious at work.  She reported contemporaneously to Dr Frankel about being put down by Darren at work.  On a weekly basis she would tell Dr Frankel that she felt worthless and believed Darren saw her as crazy.[149]  She told Dr Frankel of how they were critical of her medication on more than one occasion.  She had reported to Dr Frankel as it had happened.  She reported on many occasions when they were putting pressure on her.[150]

[149]T171

[150]T172

166She could recall seeing Dr Bongiorno around the time of the March 2018 meeting.  She was continuing to suffer from Crohn’s.  She was anxious about attending that meeting because she had cold sores.  She got that certificate because she did not want to lose her job.  He commented that she was medically fit because she needed that, or they would fire her.  She was unwell, she visited him and explained she had been told she had to attend the meeting, or she could not come back to work.[151] 

[151]T174

Cross-examination – work post March 2018

167The plaintiff was cross-examined at length as to her employment since leaving the defendant in March 2018.

168“Absolutely” she would have discussed future work with Dr Frankel on 30 August 2018 when Dr Frankel noted “possibility of temping - admin Find an agency”.  The plaintiff did not have any money and was not getting any benefits.  Dr Frankel was always suggesting she get out of that particular job.[152]

[152]T123

169The plaintiff agreed she would, at that stage, have started with Switch, but she “had not started the actual plan”.  She was on its books from March 2018.  She had just been doing a little bit of administration here and there, but was not working full time because she was waiting for the contract to start. It started in September.[153]  The job paid around $63,000 a year and she worked there until April 2019.[154]

[153]T123 – her first affidavit set out she worked there from May 2018 to April 2019 –  no mention of a contract starting in September

[154]T127

170She would have started seeing Dr Freeman in around March/April 2018.[155] Dr Freeman did not mention work issues when seen on 25 February and 8 April 2019 because that was “to get scripts and introduce [herself]”.[156] 

[155]Dr Freeman’s notes before February 2019 were initially unavailable

[156]Dr Freeman had then been seeing the plaintiff for about a year

171The plaintiff would have told Dr Freeman about struggling with work, “absolutely”, because that is why she had the herpes outbreak.  She talked to Dr Freeman all the time and the doctor has “just put down the actual treatment”.[157] 

[157]T128

172On 8 April 2018, Dr Freeman noted the plaintiff felt unwell after eating out.  There was no mention of work.  The entry was “just stating the side effects” because she was diagnosed with Crohn’s.  Dr Freeman is not a psychologist – she will not put “every nitty gritty” of what the plaintiff tells her – “I was taking time off over the course, but I would speak to her on a regular basis about, you know, being run down and complaining.”  It might have just been before that particular date she told Dr Freeman she was taking time off from Switch because she had to get certificates, but she was always complaining about not being well.[158]

[158]T129

173The plaintiff had not lined up the job with Vestas before she left Switch.  There was a gap between the two jobs.  The Vestas’ job was much higher pay than what she was normally on.  After she started with Vestas, she was promoted and given an extra title, and in fact was doing two full-time roles for no extra pay.  That was obviously very stressful for her – “Yeah and no extra pay.”[159]  She took on the extra work for about a month and then they realised it was a full-time job with too much stress for one person, so they employed someone else to do that role and she stayed as the design and compliance administrator.[160] 

[159]T131

[160]T132

174The plaintiff agreed, in the middle of this job at Vestas, she was having significant issues with David.  She liked working for Vestas in a job that involved overlooking engineers and making sure whether they were meeting the design and compliance side of things.[161]

[161]T133

175In June 2019, Dr Freeman noted a dermatology issue and that the plaintiff agreed as was recorded she was quite distressed about her waxing and waning relationship with her boyfriend, causing her to be distressed and crying.  When asked whether she was stressed out because of what was happening with her boyfriend and her relationship, she said:  “Not just that, it was the work demands and also the dermatological unit because I had skin cancer.”  While three points were listed – dermatological, boyfriends and conjunctival, it was also work; she was stressed.[162]

[162]T134

176Dr Freeman’s note on 22 June 2019 dealt a lot with the plaintiff’s relationship with her boyfriend and it causing her a lot of distress. There was nothing mentioned there about having problems doing her work because of her mental state.[163] 

[163]T135

177The plaintiff did not trust her boyfriend, they had trust issues, but she actually broke up with him because she found him on a hook up site.  When it was suggested she was not well because of the breakdown with this relationship, she said “yes, that contributed to it”.[164] 

[164]T136

178When next seen by Dr Freeman on 26 June 2019, there was a further note of relationship problems.  When the plaintiff was asked whether she was not coping because of relationship problems, she said “That and my job, because that was, like it was stressing me out”.[165]  She agreed there was nothing in writing about her work.  Boyfriend issues noted on the June entries “were part of it”.[166] 

[165]T136

[166]T137

179On 19 August 2019, Dr Freeman noted issues with the plaintiff’s boyfriend, his seizure, and self-harm, with no reference to any work issues.[167]

[167]T137

180It was put to the plaintiff while employed by Vestas from 1 April to 26 September 2019, she saw Dr Freeman twenty-four times and never mentioned any difficulty with work because of mental issues, and said nothing about work causing mental issues.  She, however, remembered “absolutely” telling Dr Freeman about mental issues affecting her ability to work at Vestas, because that is when she prescribed her sleepers.  She told Dr Freeman because she was vomiting at work and she got shingles on her belly.   It was an ongoing discussion because she lost too much weight and the doctor was worried about her.[168]

[168]T138

181She did not accept that her feelings at that time were because of her issues with her boyfriend. She was working crazy hours, getting phone calls at 4.00am, because it is an overseas company.  She was struggling at work keeping up with the demand and she knew she suffered low self-esteem and always needed reassurance from her managers, and she had a bad relationship outside of work, and it was all impacting on her, and she was vomiting every day.[169]

[169]T139

182She got a letter from Vestas just setting out her employment was to be terminated from a certain date.  They brought her into a meeting with HR and told her she was taking too much leave, she had been sick and she was going to be let go as the seven-month probation period had finished.[170]

[170]T140

183She thought, when she started at Vestas, it was to be a twelve-month contract.[171]  Dr Freeman gave her certificates during that time so she could clear up her Crohn’s.  She also had certificates from the hospital about Crohn’s.[172]

[171]T140

[172]T141 – no certificates were produced

184On 28 June 2019, Dr Freemen recorded that the plaintiff was “seeing a therapist regularly but still easily overwhelmed”.  That would have been when she started to see Rita Lapidus.  When it was noted Pristiq was increased two days after the plaintiff presented in the context of relationship difficulties, she agreed she was stressed, was not in a good place, was losing weight and vomiting.[173]

[173]T143

185The job with SBA Coleman’s as a communications coordinator was a short-term contract.  She worked one day before Christmas and the actual role started in January and she finished up in March, coinciding with COVID.  She was one of the last people to come in but also her manager decided she was not fit for the job.  They let some people go because it was a government project and everything was stopping.  They also told her she was not fit for the role because she had too much time off and was not performing.  She “absolutely” told Dr Freeman about this because she was upset.[174] 

[174]T142

186When it was suggested that she had seen Dr Freeman at least five times during that time with no mention of work, the plaintiff said she got medical certificates from Dr Freeman and would speak to her about it, and was always scared of having time off because she was scared of losing her job.[175]

[175]T142

187Before the plaintiff stopped with SBA Colemans on 14 March 2020, her difficulties with David culminated to them each taking out AVOs against each other.  She agreed that was obviously a distressing time.[176] 

[176]T144

188When Dr Freeman noted on 21 January 2020 that the plaintiff was very distressed about an impending court case, it was not just the court case, she had a big cancer removed.[177]   

[177]T145

189She confirmed she did not take up the job with John Holland because of the long hours involved.  The salary was about $80,000 to $85,000 working on the West Gate tunnel.  She discussed that job with her general practitioner and her mother.[178] 

[178]T146

Re-examination

190On return to subsequent jobs, she had lost all her confidence; she was slow at her work.  She was not doing it quickly enough, and while they gave her a promotion at Vestas, they still let her go.[179]

[179]T174

191Her ongoing problems were being reliable and her ability to pursue gainful employment.  The new psychologist, Dr O’Grady, discussed attempts to go back to work.[180] 

Lay evidence

[180]T176

The Plaintiff’s mother, Gaynor Morris

192Mrs Morris swore an affidavit on 27 May 2021.  She described the plaintiff having a happy childhood.  She had a close relationship with her and had watched her grow up and take great strides with her career, particularly when working at HBA.  She was proud of the plaintiff, who was a motivated individual.

193When the plaintiff first started work with the defendant in around 2011, she was naturally excited; however, as she settled in her new role, she would tell her about her manager, Darren, and the way he would talk to her and pick on her.

194As time progressed, the plaintiff continued to complain and she recalled that the plaintiff would phone her from work, on an ongoing basis, emotional and tearful, complaining about the way Darren was treating her.  She tried to support the plaintiff as best she could and attended the workplace to take her out for lunch when she could.  At these times, she sensed a feeling of relief from the plaintiff, who would tell her about Darren’s behaviour and that she did not want to return to work that day.  The plaintiff was becoming a nervous wreck.

195The plaintiff advised her that she tried to raise this with the defendant, including Julie, the HR manager, but nothing changed despite meetings.

196In about 2013, she felt that the plaintiff’s health was worsening due to what was happening at work.  She was becoming overwhelmed with stress and anxiety.  They got the plaintiff in touch with a psychiatrist and the plaintiff then admitted herself to Delmont Private Hospital.

197The plaintiff has lived with her on and off for years.  During the times she has been by the plaintiff’s side, a CAT team had not been involved.  

198The plaintiff’s health continued to deteriorate and she would tell her of the physical pain she suffered as a result of stress and anxiety.  She was with the plaintiff when Dr Crantock diagnosed Crohn’s. 

199The plaintiff would tell her that the poor treatment from Darren continued.  Over time, they started to talk less. The plaintiff tried other jobs after she left the defendant.  She recalled the plaintiff struggled to hold down those jobs due to her stress, anxiety and depression.

200The plaintiff is now distant with her and not as social as she once was.  They very rarely see each other and the plaintiff keeps close to herself.  The plaintiff struggles to trust like she used to.  She is not the confident, proud and motivated woman she was before working with the defendant.

201It broke her heart to have watched the plaintiff’s health and life deteriorate after she started working for the defendant.

Kate Henstridge, BUPA manager

202Ms Henstridge swore an affidavit on 27 May 2021.  She is currently thirty-eight years old and managed the plaintiff in the retention team at BUPA from August 2008 until her resignation in June 2011. 

203Ms Henstridge confirmed that the plaintiff was a professional and trustworthy team member who possessed strong work ethics.   She achieved good results herself and as a member of the retention team.  Her time management and communication skills were excellent, and she was comfortable giving the plaintiff more challenging work duties, knowing she would be able to deliver and meet all deadlines. 

204The plaintiff was a key performer in the team and was regularly called upon when there were overseas visitors and management who wanted to listen to inbound retention calls and team processes. 

205The plaintiff was one of the top performers in the team, achieving most KPIs, and was awarded with achievement bonuses and selected as one of the two team members to participate in the leadership management course.  She was a valued employee.

The Plaintiff’s medical evidence 

Dr Roslynne Frankel, clinical psychologist

206Dr Frankel reported “to whom it may concern” in February 2017, having seen the plaintiff for counselling for a number of years.

207She advised that the plaintiff continued to present with anxiety, especially in relation to her Crohn’s and work-related issues.  In addition, she suffered from depression and was on medication for anxiety and depression.  An issue for her was having to miss work at times because of her Crohn’s.  Her disease had no particular pattern, but was aggravated by stress.

208Dr Frankel suggested the plaintiff would find it beneficial to listen to music while she worked.[181]

[181]This appears to be the “headphones” letter

209On 30 July 2018, Dr Frankel provided a psychological report.[182]

[182]30 August 2018 – first attendance after gap in treatment since 4 November 2011 “WorkCover wants to take Rebecca’s case to Court – possibility of trying – admin Find an agency.”

468She was an inpatient at Delmont for three weeks from 25 June 2013.  The principal diagnosis on admission was Major Depressive Disorder.  The reason for admission was worsening anxiety and depression and not coping well with “life” issues.

469It was noted on 4 July 2013 that she vomited because she was anxious, but there was no mention of work.  She denied other relevant factors when seen on 7 and 13 July and on 8 July 2013, and mentioned relationship issues only.

470When seen in the day program on 2 August 2013, it was noted the plaintiff was currently employed four days a week, having had an inpatient admission for depression and inability to cope.   On 17 December 2013, it was noted she appears to be coping very well with stressful life situation now.

471There were, however, references in the Delmont records to work issues in 2014. On 25 February 2014, the plaintiff reported having a stressful time at work, having resumed full time.  She was then also troubled by her friend’s suicide.  There was no mention of problems with work in the further sessions in March 2014 and in early June.  However, on 24 June 2014, it was noted the plaintiff was feeling pleased being assertive with boss and on 15 July 2014, she spoke at length about her boss in a day sessions.   

472It was clearly the case, particularly in late 2012, leading to the presentation to Delmont as an inpatient in June 2013 – when her psychiatric issues peaked – the plaintiff’s problems had nothing to do with work and all to do with non-work-related factors.

473After the Delmont admission, while personal issues continued to be a feature in Dr Frankel’s notes of counselling sessions and there appears to be some improvement in the plaintiff’s condition, there were notes of phone calls from the plaintiff advising of issues at work (“the phone calls”).

474Dr Frankel saw the plaintiff monthly for the rest of 2013.

475She saw her eight times in 2014, from 13 February to 31 July.  While the focus of Dr Frankel’s “main notes” continued to be non-work-related issues, she did make a note of five phone calls in the first half of 2014 – details of which she repeated in her report written in July 2018, after the plaintiff had made her compensation claim.

476The fact of, and content of, these phone calls were not mentioned in any correspondence to a treating doctor or in a medical report before the July 2018 report – made at a time after an eight-month gap in treatment.[221] 

[221]4 November 2017 – 30 August 2018

477Attendances with Dr Frankel recommenced in April 2015 and there were six attendances that year.  There was, however, a note of a phone call in February before treatment had recommenced.

478The plaintiff saw Dr Frankel seven times from 17 February 2016 to 1 October 2016, during which time there was a note of one phone call.

479From 18 February 2017 to 4 November 2017, she saw the plaintiff eleven times. She noted receiving phone calls from her on 28 January and 9 February.

480Following these phone calls, Dr Frankel, in a “To Whom it may concern” letter of 28 February 2017, advised that the plaintiff continued to present with anxiety, especially in relation to her Crohn’s and work-related issues, and requested she be able to listen to music to relax her while doing her work. 

481Between April 2017 and November 2017, a range of personal and health issues were discussed in counselling sessions.  There was no mention of issues with Darren or work.[222] 

[222]T219

482I do not accept it was the situation, as counsel for the plaintiff submitted, that the plaintiff had reached the end of the road by March 2018.  The brief references in the phone call notes that became available during the hearing do not support a significant deterioration in the plaintiff’s mental condition because of work factors to explain her ceasing work in March that year.

483By that stage, the plaintiff had not seen Dr Frankel since early November 2017 and did not see her again until August 2018.  She was having no other treatment during this time.

484The plaintiff simply left work in March 2018 because she did not want to attend the meeting about her timesheets.  However, at that time, Dr Bongiorno was certifying her fit to work.[223]  There was no report from that treater linking the cessation of work with the defendant to increasing mental problems as a result of the defendant’s conduct. 

[223]T221

485In her correspondence and reports before her detailed 30 July 2018 report which focussed solely on work issues, ignoring personal issues, Dr Frankel mentioned work only twice.

486In her letter to Dr Bongiorno in October 2016, Dr Frankel simply stating “furthermore she is unhappy in with her job”. As counsel for the defendant submitted, at that stage, the plaintiff’s relationship with her current partner was uncertain, family dynamics had changed, there were difficulties with her parents.  If the plaintiff was always complaining about work when she saw Dr Frankel, it is inconceivable that there would be just this one liner.[224]

[224]      T218

487The reference to work in the February 2017 “headphone” letter was also very brief.

488The first detailed report dealing with the work issues was prepared by Dr Frankel for the purposes of conciliation after the plaintiff’s claim had been lodged and rejected.  She had not seen the plaintiff for nine months at that stage.  

489The July 2018 report was based on a single sheet of phone calls, some undated, which each had a separate equivalent separate page in handwriting, which were not part of the main notes that were provided in answer to the subpoena.

490As counsel for the defendant submitted, Dr Frankel’s 2018 report is too one sided to be accurate, because there is no mention at all of non-work related matters that have been significant for many, many years.  It reads as if the plaintiff had pristine mental health then all these things happened at work and the diagnosis related thereto. [225]

[225]T221

491This 2018 report does not take the matter far in terms of assisting the plaintiff or actually properly analysing a situation and diagnosing some injury that has occurred through work interactions, or diagnosing or considering the impact of that injury on her, having regard to her pre-existing state.[226] 

[226]T222

492After the plaintiff last saw Dr Frankel in July 2019, there was no further counselling until the plaintiff was seen some time in 2019 by Dr Lapidus (until perhaps 2020), although the dates of treatment are unclear.  No report or notes of that psychological treatment have been provided.   

493Dr Freeman started to see the plaintiff in early 2018.  There is no mention in her notes of the plaintiff ceasing work with the defendant as a result issues at work such as bullying or harassment.  In her May 2021 report however, she notes the plaintiff gave a history of an ongoing WorkCover claim and feeling she had to resign from the defendant because of emotional stress at work. 

494Dr Freeman’s notes indicate that the plaintiff’s recent stress is twofold:  stress of the actual litigation and persisting issues with her boyfriend.[227] 

[227]T232

495While counsel for the plaintiff submitted there was a progressive psychiatric  decline, Dr Freemans’s notes in late 2020, and as recently in May this year, focused on the court case.[228] 

[228]T233

496Dr O’Grady first saw the plaintiff earlier this year.  Her report made mention of jobs undertaken by the plaintiff since leaving the defendant.  She simply accepted the plaintiff’s current mental state is related to her work with the defendant, making no reference at all to a long history of significant non-work-related issues and the diagnosis of a Major Depressive Disorder in early 2013.   

Medico-legal opinion  

497In this aggravation case where the principles in Petkovski v Galletti[229] apply, the medico-legal psychiatrist relied on by the plaintiff has not undertaken the requisite analysis.

[229]      Supra

498Dr Lewis failed to give credence to the plaintiff’s significant psychiatric condition relating to non-work issues, both before and during the work period.  He did not deal with these issues at all, simply concluding in his first report that the plaintiff was suffering a work-related Major Depression and as if there were not any other significant matters happening before or during the work period.[230] 

[230]T222

499To his knowledge, there was no pre-existing psychiatric condition, and the Major Depressive Disorder developed in the context of sustained workplace bullying, harassment, and victimisation.  In his view, the disorder was precipitated in the course of employment with the defendant, where there was a history of sustained workplace bullying, harassment and victimisation.

500His most recent report contained a scant belated attempt to deal with some non-work-related stressors, but no analysis of them in any detail.[231] 

[231]T237

501Counsel for the defendant summed up concisely the deficiencies in Dr Lewis’ conclusion.

502Dr Lewis gets a very one-sided history.  There is no mention of prior stressors or significant stressors. There is no mention of concurrent significant non-work-related stressors.  There is no analysis of depression going back to 2009.  There is no analysis of the impact of personal relationships in the past and current.  The only prior history he gets is scant.  He does not question the plaintiff about that history and her mental state as she led into this employment.  She gives him a history that is manifestly wrong, namely that anxiety had resolved after 2005 and denied anxiety or depressive symptoms.  His opinion she has got a major depressive illness due to work is based on this erroneous history that nothing else was happening.[232]  He is wrong when he says that diagnosis is consistent with Professor Varma’s, who does not implicate work at all.[233] 

[232]Dordev (supra)

[233]T237

503Unlike Dr Lewis, Professor Doherty, who examined the plaintiff on the defendant’s behalf, had available to him all the relevant material and carried out a comprehensive analysis of the plaintiff’s mental state before and after the work injury. 

504There is no suggestion in his report that he did not accept the work events occurred.  Although he was provided with statements from Darren and Julie in which the bullying was denied, he does not mention having any doubt about the plaintiff’s bullying allegations.  As counsel for the defendant submitted, “when he looks at her complaints about work and puts them on top of, or in the context of, non-work related pre-existing problems that persist, he says these problems and perceptions, and the effects of them on her, do not give rise to any psychiatric injury”.[234] 

[234]T223

Other consequences

505In her affidavits, the plaintiff complains of continuing to suffer the same problems she was experiencing in late 2012 – depression, anxiety, irritability, sleeplessness, feelings of hopelessness, wanting to vomit, low mood and lack of socialisation.[235]

[235]T261

506Before any issues arose at work, there was suicidality, hopelessness, panic attacks,[236] worthlessness, lack of energy, lack of socialising, abusing alcohol and  anger.  Everything the plaintiff says is to do with work has been there in a very similar manner before there were any issues at work.

[236]June 2013 – Professor Varma

507While somewhat lengthy, the plaintiff’s affidavits are in quite general terms, with refences to various activities previously engaged in but little detail thereof.

508More recently, while she says she struggled, she was able to work pretty much straight through to the outbreak of COVID in March 2020.

509Although the plaintiff’s mother confirms the plaintiff’s problems in her affidavit, it is extraordinary that she made no mention whatsoever of any non-work-related issues in the plaintiff’s life at any time, focussing solely on her work complaints.[237]

[237]T255

Crohn’s

510Crohn’s is a physical problem, involving inflammation of the bowel.  It can be aggravated by stress.   

511Counsel for the plaintiff submitted the plaintiff’s Crohn’s has been significantly aggravated by her work-related anxiety, relying largely on Dr Bongiorno’s comment and the fact there was no contrary evidence from the defendant [238]

[238]T257

512However, Dr Bongiorno’s comment in this regard was brief, simply stating in his report that the plaintiff was suffering from an exacerbation of Crohn’s, as well as anxiety and depression.  This has been caused by workplace bullying.[239]

[239]T256

513While in her February 2017 report, Dr Frankel wrote that the plaintiff continues to present with anxiety, especially in relation to Crohn’s and work-related issues –  this does not necessarily mean she thought the work-related anxiety and Crohn’s were connected.[240]

[240]T258

514Significantly, Dr Crantock, gastroenterologist, who has treated the plaintiff since 2015 for bowel related issues, makes no mention in his letters to her doctors of any work issues, let alone a connection between work-related anxiety and any aggravation of the Crohn’s.  Further, in August 2015, he noted she complained of  “intermittent” vomiting.  In his next letter of March this year, he advised her condition was stable.

515The absence of a report addressing this issue from the current specialist treater is a significant omission.   

516I do not accept in these circumstances, there is a temporal connection between any work-related anxiety and the flare up at various times in the plaintiff’s Crohn’s. In these circumstances, on a Peak[241] analysis, any consequences relating to the Crohn’s must be excluded when considering whether the plaintiff’s current psychiatric condition is severe.[242] 

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

[242]T239

Treatment

517The plaintiff continues to see psychologist, Dr O’ Grady, and currently takes Pristiq prescribed by her general practitioner, Dr Freeman.

518The plaintiff last had psychiatric treatment in June 2014, when she ceased seeing Professor Varma in June 2014.  It seem highly unlikely she has seen him since, as she maintains.[243]

[243]T119

519From at least November 2010, the plaintiff was being prescribed Lexapro and she was taking 100 milligrams of Pristiq at the time of the Delmont admission.

520There have been increases in the plaintiff’s dosages of Pristiq at various times, but these increases have been associated with relationship issues, as noted by Dr Freeman in June 2019, when Pristiq was increased from 100 milligrams to 200 milligrams.  The plaintiff increased her dosage to 300 milligrams in 2020 when non-work issues escalated.

521The Delmont inpatient admission and day programs in 2013 and 2014 centred around significant relationship issues at the time, albeit in July sessions, work issues were also discussed.  There have been no further inpatient or day program attendances of that nature since.

522Counselling has continued with different psychologists at various times since 2012 and does not appear to have increased in line with any particular problems at work.

523Therefore, there has been no real increase or change in the nature of the plaintiff’s treatment as a result of any work issues.

Loss of earning capacity

524The issue for determination is whether the plaintiff has suffered a 40 per cent loss of earning capacity as a result of any aggravation injury.

525Addressing the plaintiff’s condition before the work period, the plaintiff relied on the affidavit of her former employer, Kate Hentsridge, who deposed the plaintiff was a valuable team member at BUPA.[244] 

[244]T254

526It was submitted the plaintiff had reached a “tipping point” by the date of the March 2018 meeting and she could then not go on with the defendant.  She then tried other jobs and “she could not survive in them because she was unable to cope with stress in those roles due to the injuries she had sustained during the work period”.[245]

[245]T269

527Counsel for the plaintiff relied on Dr Freeman’s view that the plaintiff is totally incapacitated for employment, having documented a deterioration in her mental health in late 2020.[246]   

[246]T263

528Dr Lewis also concluded that the plaintiff does not have a capacity for employment as a result of the mental injuries sustained by her during the work period.

529However, I am not satisfied the plaintiff has suffered any loss of earning capacity as a result of any work-related aggravation.  

530She stopped work with the defendant, having been certified by Dr Bongiorno as unfit to attend the March meeting – although fit to continue her normal duties. There was no lead up period of increased time off work because of stress or anxiety; she simply did not attend work after the 21 March meeting date.[247]

[247]T224

531Dr Bongiorno’s views as to the plaintiff’s work capacity in early 2018 are unclear.  His other certificates around that time, and his subsequent report, seem somewhat at odds with the “meeting” certificate.  However, none of his clinical notes are available and he has not commented in any report on the plaintiff’s condition since June 2018.

532Very soon after the March 2018 meeting, the plaintiff had obtained the job at Switch as a project co ordinator – stating that she was on their books in March doing data work.  Therefore, she was already on the books at Switch when she saw Professor Doherty on 23 April 2018 at a time when he thought she was not suffering from any diagnosable psychiatric condition.

533The plaintiff starts seeing Dr Freeman in May 2018.  There was no reference in the notes of early days of treatment of the plaintiff having to cease work with the defendant because of mental health issues.  The only reported problem with work was her asthma.[248]

[248]T224

534Further, Dr Freeman does not record any complaints by the plaintiff that she was struggling with work at Switch because of any mental health problems.

535The plaintiff’s next job was at Vesta from April to September 2019.  During that time, Dr Freeman did not note any mental health issues affecting her work of the type the plaintiff recently deposed to.[249]

[249]T225

536Dr Freeman did, however, note the plaintiff’s stress with her WorkCover claim.  The plaintiff also told her that she was having problems with the long hours and extra responsibilities at Vestas.  The focus in Dr Freeman’s notes then turned to issues with the plaintiff’s boyfriend at the time, with an increase in Pristiq in the middle of June 2019 – personal issues played down by the plaintiff.[250] 

[250]T226

537I do not accept that Dr Freeman was told by the plaintiff she was having problems with work but made no note of them because “she is not a psychologist” as the plaintiff explained.[251]

[251]T225

538There was also no mention of any mental health issues working at CBA Coleman in early 2020, with the plaintiff ceasing work in March at the time of covid.

539Totally contrary to the plaintiff’s evidence, Dr Freeman’s May 2021 report does not corroborate any problems being reported by the plaintiff and talks about how well she was going at work.[252]  No issues were identified as to an inability to cope with subsequent jobs or that the plaintiff stopped these jobs because of persisting problems with issues relating to the work period.[253] 

[252]T226

[253]T227

540It is difficult in these circumstances to understand the basis of Dr Freeman’s view the plaintiff is totally incapacitated when she was coping so well – even thriving when she was back at work.

541While the plaintiff says she was “let go” in various jobs because she was taking too much sick leave, there are no certificates in evidence and there is no corroborating evidence in this regard.[254] 

[254]T228

542The job at Coleman stopped because of COVID.  Again, the plaintiff claimed she had to take too much time off, but there is no corroboration.  Importantly, there were persisting problems with her boyfriend at that time and the situation with the mutual intervention orders.  She also had a cancer removed. [255]

[255]T230

543Further, it seems the plaintiff was having psychological treatment from Dr Lapidus in mid 2019 until at least May 2020 but there is no report from her. [256]

[256]T234

544While Dr Frankel considers the plaintiff is totally incapacitated for work as a result of her work-related injuries, her report is so one sided, particularly in circumstances where treating Professor Varma does not mention any problems with work – just a comment in his 2018 report that she continued to be unhappy at work as at March 2014.

545In the two years after the plaintiff left the defendant, there were only a few months to March 2020 when she was not working.  Her ability to get that work and maintain it seems somewhat consistent with Professor Doherty’s examination in late April 2018, when he thought she did not have a diagnosable psychiatric injury.

546From March 2018, the plaintiff continued to present herself as a competent person, as her résumé set out, and she relied on that document to obtain work in various fields thereafter.

547While she maintains she had to have so much time off in these jobs because of Crohn’s or other issues related to her work with the defendant, there is no certification from any doctor any time to this effect.

548There is a dearth of complaints to Dr Freeman in the multiple attendances since 2018 of any problems with any of the jobs that she was undertaking during that period.  Furthermore, in her detailed report, Dr Freeman set out the plaintiff’s success in subsequent employment and the ability to cope with various tasks, rather than an inability to continue.

549I do not accept that the plaintiff somehow came to the realisation in 2020 that she could no longer work because of any injuries suffered during the work period. 

550Given the plaintiff’s unreliability as a witness and as an historian, it is almost impossible to assess what effect any work issues have on her current presentation.[257]

[257]T209

Overview

551I am unable to be satisfied on the evidence that any work-related aggravation is severe in its own right as at the date of hearing.[258]  As counsel for the defendant submitted, there is no additional impairment that is severe in terms of the consequences because there is significant overlap and significant pre-existing persisting problems of the same or similar nature in terms of consequences the plaintiff now relies on.[259]

[258]T239; Petkovski (supra)

[259]T241

552Further, there are issues as to the permanency of any current psychiatric condition, with Dr O’Grady saying there has been a significant improvement and not being able to comment on the plaintiff’s prognosis.[260]   Further, Dr Freeman thought, when the case was over and with specialist intervention, the plaintiff’s capacity for work will change.

[260]T235

553I accept the defendant’s primary submission, that the plaintiff has always had a Major Depressive Disorder and Anxiety, non-work related.  She continues to have it; it has waxed and waned.  Some matters at work affected her, but they did not give rise to the level of a diagnosable psychiatric injury and did not influence or aggravate that condition.[261]

[261]      T223

554Taking into account all the evidence, I am not satisfied that any aggravation of the plaintiff’s psychiatric condition as a result of her work with the defendant is “severe”.

555Accordingly, her applications in relation to both pain and suffering and loss of earning capacity are dismissed.

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