Caughlan v Richard Cambridge Printers Pty Ltd
[2012] VCC 351
•2 April 2012
| IN THE COUNTY COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02584
| SCOTT ANDREW CAUGHLAN | Plaintiff |
| v | |
| RICHARD CAMBRIDGE PRINTERS PTY LTD (ACN 007 420 788) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 10 -11 and 14-15 November 2011 | |
DATE OF JUDGMENT: | 2 April 2012 | |
CASE MAY BE CITED AS: | Caughlan v Richard Cambridge Printers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 351 | |
REASONS FOR JUDGMENT
---
ACCIDENT COMPENSATION – serious injury – permanent severe mental or behavioural disturbance or disorder – pain and suffering – loss of income – leave granted - Accident Compensation Act 1985 s.134AB
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC and Mr D J N Purcell | Winn Legal Pty Ltd |
| For the Defendant | Mr A J Moulds SC and Ms S Manova | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff seeks leave under s.134AB(16) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings against the defendant for damages for pain and in respect of loss of earning capacity in respect of injuries alleged to have been suffered in the course of his employment with the defendant.
The injury
2 Counsel for the plaintiff identified his injury as a psychiatric injury with high-level anxiety and depression, and chronic high-level nausea. The injury was identified as a permanent severe mental or permanent severe behavioural disturbance or disorder: see the definition of serious injury in s134AB (37)(c). The injury was associated with the work that the plaintiff performed as a printer with the defendant company.
3 The defendant’s case was that the plaintiff had a constitutional generalised anxiety disorder and a condition of gastro paresis. These conditions had not been caused by the plaintiff’s work.
4 The plaintiff bears the onus of proof on the balance of probabilities.
5 Section 134AB(38)(b) and (d) provide that:
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment of loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
(i) pain and suffering; or
(ii)loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of body function, disfigurements, or mental or behavioural disturbances or disorders respectively;
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.
6 The word “severe” is used as a stronger word than serious: Mobilio v Balliotis[1].
[1][1998] 3 VR 833 at 846, Brooking JA
The plaintiff’s history
7 The plaintiff swore two affidavits in support of his application and gave oral evidence.
8 The plaintiff is aged forty-one, is single and lives in same home as his widowed mother. She is in poor health and requires constant medical treatment. He completed schooling to Year 12 in 1988. In February 1989 he commenced work with the defendant, or its predecessor, as an apprentice printer in Bendigo. After completing his apprenticeship, he remained with his employer as a printer until 17 September 2007. He has not worked since that date. His work with the defendant was the only job that he had after he left school.
9 The plaintiff initially operated GT406 and GT052 printing machines, which he said were fairly basic machines.
10 At a point before 2002 the defendant acquired a M04 printing machine, which was eight times as big as the GT046 machine. In 2002, the defendant commissioned an M02 machine, which was four times as big as the GTO46. Both these machines were more sophisticated printers than the M04 printer.
11 The plaintiff gave evidence that he had received little training on the M02 machine. Other printers, who had been employed to operate it, had only stayed for a short time.
12 The plaintiff’s evidence was that the GTO46 machine was a much less sophisticated machine than the MO machines. For example, in undertaking a four colour print run the plaintiff would have to pass each sheet of paper through the machine four times in order to pick up the various colours needed to create the finished product. On the MO2 machine two print runs were required in order to do a four colour print whereas on the MO4 machine a single run could complete the four colour print. The MO2 and MO4 machines could also print on both sides of the paper in one pass, while the GTO46 could not.
13 The MO2 machine was able to print in two colours and the MO4 In four. The MO2 had a stream feed system with enabled up to six sheets of paper to go down the feed board simultaneously, overlapping each other. The GTO46 had a single sheet feed. The MO4 has wheels to control the paper as it went down the feed board. They had to be perfectly positioned. Ink colour and water also had to be balanced. The GTO paper feed has no such adjustment requirement.
14 Initially the plaintiff had limited involvement with the M02 and the M04 printing machines. He received one-and-a-half day’s training on the M04 before his supervisor, Mr Stevens, went on leave. He was then left to run it on his own during Mr Stevens’ absence. He stated that he struggled considerably with the operation of the MO machines and was fearful and anxious. Complaints were made as to his decreased productivity in operating the machines. However because he was only required to operate them for very short periods of time he put up with his fears and anxiety and did the work as best he could.
15 In 2005 to 2006 the plaintiff applied unsuccessfully for a job with other printing companies because he realised that his employer was moving to use larger presses which he was not confident to operate. The jobs that he sought involved operating GTO printers instead of having to work on the larger MO printers.
16 In early November 2006 according to the plaintiff’s evidence, Mr R Cambridge of the defendant, told him that the operator of the M02 machine was ceasing employment and was not being replaced, and that he would have to take over operating the M02 machine in addition to his usual work on the GTO46 machine. The plaintiff stated that he felt fear, nervousness and anxiety at this prospect.
17 As November 2006 progressed, the plaintiff had difficulty controlling his symptoms of anxiety and felt nauseous and dizzy and had difficulty with sleep.
18 On 1 December 2006, the plaintiff suffered his first panic attack at work. It occurred while he was working the M02 printing press. He had problems with the paper that was being printed because it was creasing and marking. His attempts to remedy it left an ink smudge on the sheets. He said:
“I felt dizzy and nauseous and I had a feeling like an electrical pins and needles sort of feeling going through my arms and down my back.”[2]
[2]Transcript (“T”) 95
19 He said he went to the dark room at his work and lay down for an hour. He finished the job but then took a few days sick leave.
20 He consulted Dr Hsu a general practitioner and was prescribed anti- depressant medication and medication to assist with sleeping and referred to a psychologist.
21 The plaintiff saw a psychologist on five occasions in December and January 2007. The psychologist’s notes stated that he wanted a change of employment and that he worried about everything. The notes do not refer to the problems he experienced with the printing machines.
22 He gave evidence that he would work on the MO2 machine for anywhere from a couple of days to three weeks. He lost confidence because he felt that he wasn’t doing a very good job when he was working on those printing presses. He told the psychologist of this problem when he first consulted her in late 2006.
23 He was uncertain how long before December 2006 he had worked on the MO2 printer. He became anxious because he had difficulty working the MO presses. He used to work the GTO machine about 50 per cent of the time, about 20 per cent of the time he worked on the guillotine and 5 per cent of the time he made plates in the camera room. About three or four times a year he would be asked to work on one of the bigger off set machines.
24 In February 2007 the plaintiff commenced long service leave and four weeks annual leave. His evidence was that he mainly spent this leave in bed because of the anxiety that he experienced.
25 While on long service leave, the plaintiff had a gastroscopy performed and was told that everything looked normal.
26 The plaintiff’s evidence was that on about 21 March 2007 when he returned to work after his long service leave, he continued to struggle significantly with his printing duties. He could no longer control his anxiety about operating the M0 machines. He worked for three days and then had the next week off sick. He took annual leave in April and May. He had a further six days off work commencing on 29 June. He provided a certificate for the first four days off work.
27 During that time Dr Smagas, his usual general practitioner, referred him to Dr D’Ortenzio, a psychiatrist. The evidence of both those doctors is referred to below.
28 The plaintiff returned to work on 9 July 2007. In August and September 2007 the plaintiff took further annual leave. Mr Cambridge asked him why he was taking time off work. He said that he was feeling nauseous but that his doctors were having trouble getting to the bottom of it. Mr Cambridge suggested that he try other doctors.[3]
[3]T 93
29 The plaintiff commenced taking diazepam medication in the morning and evening to alleviate his anxiety in preparation for work, especially when he was required to operate the MO machines.
30 After the plaintiff returned to work in September 2007 he was directed to work on the MO2. He did this for three days without much difficulty as it was a relatively easy job.
31 In September 2007, Mr Stevens the foreman gave notice to end his employment. Once Mr Stevens left, the plaintiff would become the senior printer and on occasions be required to operate each of the three machines as well as assist another employee operate them. Mr Cambridge told the plaintiff that Mr Stevens did not have to be replaced and that he and a new employee would be able to do everything on their own. He considered that he had been inadequately trained and that the printing staff of the defendant had been reduced in numbers.
32 Events came to a head on 17 September 2007. The plaintiff’s evidence was that he commenced work by setting up the GTO machine to do an urgent job, but that Mr R Cambridge told him to drop what he was doing and to run a job on the M02 printing press that had to be finished that day. In accordance with those instructions the plaintiff commenced setting up the MO2 machine, but began feeling extremely nervous and nauseated. Because he had not had advance notice that he would be operating the M02 printing press that day, he had not been taken diazepam before he came to work. He was unable to calm down sufficiently to operate the M02 machine and he again attempted to explain his situation, advising both Mr Stevens and Mr Cambridge of his difficulties.
33 He told Mr Cambridge that he felt nervous and sick, that he could not work the machine because of his health problems and that his nerves were shot. He said that if they were going to force him to work on it, then he would have to quit. The plaintiff’s evidence was that Mr Cambridge responded that if he couldn’t do what he asked him to do then he was of no use to him.
34 According to the plaintiff, Mr Cambridge asked “Are you leaving right now?” The plaintiff said “yes” that if he was going to keep forcing him to work on the MO2 and MO4 machines that he would have to resign. He left the workplace shortly afterwards, handing his keys back to Mr Cambridge who said “thank you for the last 17 years”.[4]
[4]T102
35 The plaintiff returned to his workplace on at least two occasions. On 4 October 2007 he returned to deliver a WorkCover claim form that he had completed after visiting Dr D’Ortenzio. The plaintiff’s evidence was that when he gave Mr R Cambridge the certificate he said that it was the first time that he had seen anything with a written diagnosis written on it.[5]
[5]T 106
36 On a second occasion when the plaintiff visited his former workplace he helped Mr Cambridge swing a plate on the MO4 printing press. Mr Cambridge told him that if he wanted to come back to work there was no problem with doing that either part time or full time.
37 The plaintiff did not return to work with the defendant. Since ceasing work with the defendant, he has not sought further work. He did consider seeking work as a catalogue deliverer, but did not pursue it. No doctor has certified him as capable of returning to work. He sates that he wishes that he was still working. However, he does not believe that by reason of his psychiatric and physical state he is capable of working. He does not believe that he is capable of unlimited operation of the printing machine without running a considerable risk of aggravating his psychiatric condition and symptoms.
38 In his second affidavit, the plaintiff stated that he had recently returned to consult Dr D’Ortenzio who reaffirmed his belief that he had no capacity for work due to his psychiatric condition and associated symptoms. He has a tremor of his hands, which he believes may be related to his psychiatric condition and neurologists were unable to find a physical cause for his symptoms.
39 The plaintiff gave evidence that before 2006 he had indigestion problems. He had told Dr Smagas in October 2006 that he was nauseated.
40 The plaintiff stated that he now tends to stay in his room or in the house because of the severity of his psychiatric condition and associated symptoms. In oral evidence he stated that on his worst days his condition was so debilitating that he found it hard to get out of bed. He suffers from severe anxiety problems and panic attacks, is nervous and tense continuously and has a chronic problem with nausea. He gave oral evidence that he experiences nausea every day. On occasions it can be debilitating and then he finds it very hard to get out of bed and eat.
41 On the advice of his medical practitioners he has tried to engage in a life outside the house but has struggled enormously in his ability to do so. He has no social life, no longer attends the local gym and has not attempted to play golf for approximately 12 to 18 months.
42 He can drive a car and on occasion has driven to Melbourne to see doctors.
43 He has lost a lot of weight. He suffers from severe depression and on frequent occasions has had suicidal thoughts. He suffers from tinnitus and has trouble getting to sleep. He believes that he is likely to encounter ongoing and long term psychiatric problems. Having regard to the nature of his condition, he does not believe that he is fit to engage in employment.
44 The plaintiff received payments of compensation until March 2009. He is in receipt of a disability benefit of $443.00 per fortnight and income from investments.
The Plaintiff’s Medical Treatment
45 Medical records of the practice of the plaintiff’s general practitioners showed that the plaintiff had received medication for gastric problems first in March 1999. In the same year he had complained of nausea, diarrhoea and vomiting. Medical records indicate that in June 2003 the plaintiff was continuing to get epigastric discomfort associated with alcohol ingestion. He said that he had bouts of gastroenteritis. He attended the doctor again in September 2003 with vomiting, diarrhoea and epigastric pain.
46 In 2005 and 2006 the plaintiff received treatment for pain in his shoulders.
47 On 23 October 2006 the plaintiff saw Dr Smagas, his long standing general practitioner, who practised in conjunction with a number of other general practitioners. The notes state that the plaintiff had been feeling slightly nauseated on and off during the last month. Under the heading “Management” the notes state:
“Arrange a trial of Nexium for 2/12, seems to have a longstanding indigestion problem, happens about 6 x per mnth, so best to treat, if it recurs, would be wise to arrange for gastroscopy or similar problem has been present a few years.”
48 As stated previously on 4 December 2006, following the first panic attack, the plaintiff attended Dr Hsu, a general practitioner in the same practice as Dr Smagas. He attended because of depression and a lack of sleep which was depression related and nausea. He was prescribed anti-depressants and sleeping medication. A mental health plan, which in turn was part of a mental health assessment, was prepared for him. Under the heading “predisposing factors” it stated: “have been feeling depressed for a few years”. Under the heading “Precipitating Factors” the Plan stated “Stress at work - change of role”.
49 The plaintiff was referred to a psychologist, who appears to have been Ms Clancy. She saw him on five occasions between December 2006 and February 2007. Her notes of the consultations did not refer to problems with the printing presses and did not refer to work stressors. The notes were not a verbatim record of what was said. The notes did state that he wanted a job change. The plaintiff’s evidence about this note was that the psychologist asked him if a change of job would assist him and he said that it would.
50 The plaintiff did not consider that he received much assistance from attending the psychologist. He continued seeing his general practitioners. He was prescribed medication for nausea, for his reflux and depression. However his evidence was that he did not receive much assistance from that medication.
51 The plaintiff consulted Dr Smagas again on 31 January 2007. He had not been able to get an appointment to see him earlier. The doctor’s notes record that the plaintiff had had pretty constant daily nausea for the last three months and that the Nexium tablets didn’t assist.
52 Dr Smagas referred the plaintiff to Mr Campbell for a gastroscopy. It was performed on 20 February 2007. Mr Campbell reported that it was a normal gastroscopy and that the plaintiff’s symptoms were “more likely to be functional than anything else”.
53 The plaintiff attended another medical practitioner in Dr Samagas’ practice in March 2007 complaining of nausea and expressing concern about returning to work as he was feeling sick.
54 Dr Smagas’ notes of a consultation on 27 March 2007 record that the plaintiff:
“ still has the nausea - which I note was present when he was having psychological work. He stopped the anti depressant [it was] making him sick (three weeks ago) –similar nausea.”
55 The plaintiff continued to see Dr Smagas in 2007 and was still experiencing nausea. The notes of 4 July 2007 under the heading “Management” stated:
“Is keen to be referred for psychiatric assessment and management, discusses issues at work, and ??? this is the underlying factor that may be preventing him from being able to move on.”
56 Dr Smagas referred the plaintiff to a psychiatrist, Dr G D’Ortenzio, who treated him between July 2007 and late 2009.
57 Dr D’Ortenzio has been a fellow of the Royal Australian College of Psychiatrists since 1989. He prepared a number of reports. He prescribed anti-anxiety medication including Valium and Xanax which provided limited relief to the plaintiff.
58 Dr D’Ortenzio first report to Dr Smagas was dated 10 July 2007 and referred to the plaintiff having a history of nausea since October 2006, which was persistent just before Christmas and was experienced almost daily since. He stated that the plaintiff had some worries and some family history of some anxiety symptoms on his mother’s side. He also stated:
“At this stage, it is very difficult to make a diagnosis of anxiety, as he really doesn’t meet the diagnostic criteria. He doesn’t have sufficient psychic and somatic symptoms for one to call it a Generalised Anxiety Disorder, he doesn’t have the excessive worry and preoccupation that one commonly finds and whilst I did get the history of one probable panic attack twelve months ago, this was in the workplace in the context of things going wrong he has not had a repeat of that.
Hyperventilation in the consulting room today caused a whole lot of anxiety symptoms, including dizziness, pounding heart, pins and needles and chest tightness and these symptoms that he recalls when he had that panic attack about twelve months ago but these are not symptoms that he has had over the last twelve months in conjunction with his nausea.
Overall it is difficult to make a diagnosis of an Anxiety Disorder, really what he has is persistent nausea which has responded to the antihistamine, not to anxiolytics and not to SSRI’s, though he has not really been able to tolerate the latter.
…
Clearly this may turn out to be anxiety however the lack of typical bedfellows and the lack of typical response to hyperventilation as well as the lack of response of his nausea to Diazepam, suggest that it is going to be quite an atypical anxiety disorder, if indeed it is, as he really has nausea without sufficient other conditions to make that diagnosis at this point of time.”
59 In cross-examination, Dr D’Ortenzio gave evidence that at that time, in order for him to have concluded that the plaintiff’s condition was an anxiety state, he would have wanted evidence of some social or occupational dysfunction and there was no history of that.
60 Dr D’Ortenzio suggested that the plaintiff retry diazepam and referred him to Dr L Fisher a gastroenterologist and consultant physician. On 20 September 2007 Dr Fisher reported that extensive investigations, including CT scans and x-rays, all produced normal results. She was unable to say what was causing his nausea and stated:
“ I must say I would be feeling that this probably not organically based”
61 Dr D’Ortenzio saw the plaintiff on 3 October 2007 and for the first time observed that his problems at work were inculpated in his condition. He issued WorkCover certificates. He wrote by way of giving details of the injury:
“precipitated by increase in workload and change of role which employer of last 18 years knew he couldn’t cope with”.
62 In a report to the insurer of 8 November 2007 Dr Samagas, referring to his consultations with the plaintiff, stated:
“Scott has not been seen since the 23rd July, and thus I am not able to make further comment as to his current capacity for work.
There was not sufficient discussion pertaining to his work or that we were trying to understand his diagnosis for us to be able to place a clear link to that. I am not sure that any further matter would be relevant...”
63 In a medico-legal report on 22 January 2008 to the Accident Compensation Conciliation Service, Dr D’Ortenzio concluded:
”Mr Caughlan suffers from a Generalised Anxiety Disorder, which began in December of 2006 with a panic attack, and he has had ongoing symptoms since that time.
The symptoms have been variable and have been invariably exacerbated by work on the MO2 printing machine. His employers have been aware of this for some 12 months. Whilst for the first 6 months, there was some lack of clarity in the diagnosis, the initial diagnosis was of anxiety and depression, any doubt about the diagnosis was removed when appropriate investigation was undertaken and in the period after my first consultation, the trial of anxiolytic medication confirmed a response and the treatment since then, has been for an Anxiety Disorder.
….The condition is not constitutional, as Mr Caughlan has not suffered any significant anxiety symptoms or any psychiatric disorders prior to the age of 36, and in particular the long-term history of anxiety symptoms from childhood and adolescence is not present in Mr Caughlan’s case.”
Under the heading: “The relationship of this injury/condition to Scott Caughlan’s employment”, Dr D’Ortenzio stated:
“The relationship of the injury is in direct relationship to his having to work, not only extra with two printers doing the job of three when the other printer was not replaced, but also being forced without notice on to a machine which he had developed a strategy to cope with, which had enabled him to keep working and mange his problem.”
Dr D’Ortenzio also stated that:
“Mr Caughlan’s current state is that of having total incapacity for any duties whatsoever as a result of his current psychiatric disorder and resultant symptoms”.
64 In a report of 9 March 2009 to the plaintiff’s solicitors Dr D’Ortenzio diagnosed a condition of Generalised Anxiety Disorder. He disagreed with the view of Dr Entwisle, which is referred to below, that the plaintiff’s disorder was constitutional and stated:
“I am certainly of the view that his severe nausea is a further aggravating factor that has impaired treatment and probably contributed to the perpetuation of his problems, however the onset of the nausea can be traced very firmly to December 2006 and its exacerbation to December 2007, making it a clear part of his current problems and not pre-existing or ‘constitutional’.”
The reference to December 2007 was presumably intended to be a reference to September 2007.
65 Dr Smagas reported in March 2009:
“Scott Caughlan clearly described an episode of a stressor related to his employment in December 2006 when being reviewed [by] a Dr Helen Siu at Healthworks Medical Centre in Kangaroo Flat. It was at this time also that he was first initiated on SSRI medication, specifically an anti depressant medication. He was diagnosed with nausea and with depression at the time. He has regularly attended for ongoing attempts to manage his nausea since that time.
Mr Caughlan had been seen at Healthworks for up to five and a half years previously, with the first appointment there being on 13th August 2001 at which time he described a problem of indigestion. He was treated at the time with an acid suppression medication in the form of Rani Tablets and he continued over the next 5 years to present for similar problems relating to indigestion. At no time during his visits for indigestion did he refer to the problem of nausea. He presented with nausea and vomiting on 2 occasions. There were one episode of gastroenteritis for which he complained of diarrhoea and vomiting and he was prescribed Maxolom at this time. That was in December 2002, and also in September 2003, where he also had symptoms that suggested a gastroenteritis illness with diarrhoea associated with his vomiting.
The relationship of his employment with his current problem, I believe is unclear. It appears that in December 2006 it triggered an aggravation in his generalised anxiety state for which previously he had not sought formal treatment from Healthworks. It would appear that the stressors pertaining to the incident at work would have been alleviated sometime afterwards, we are not privy to that information as the notes by Dr Helen Siu do not make that clear. He did though show ongoing symptoms of nausea that he suffered with, and these did not and have so far not resolved.
I believe at the moment he doesn’t have a capacity for work and I believe this is because his degree of nausea is unpredictable. With regards to capacity for light duties or modified duties the restrictions that would apply to him are that; were he suffer with excessive nausea, that he would be able to defer required duties to a later time.
His current condition is largely unchanged to that which he has had over the last two years and 3 months. I believe his prognosis is one of eventual recovery but with significant assistance being needed to address his anxiety state. I am largely supportive of Dr Entwisle’s report. I would note though as I have said that there was no mention of nausea previous to December 06 except in the context of a gastroenteritis like illness. If there was a stressor at work in December 06 which aggravated Mr Caughlan’s previous anxiety state or created a new anxiety state, it is difficult to understand how this continues to impact Mr Caughlan’s current state. It has either triggered its onset or fuelled its exacerbation, and he has been unable to recover from this.”
66 The plaintiff was referred to Associate Professor G Hebbard, a gastroenterologist, who saw him on three occasions between February and June 2009. He reported that the plaintiff presented with a history of 2 years of nausea in the setting of a generalised anxiety disorder and stress at work. He stated:
“My investigation revealed gastroparesis which is likely to be a contributor to his nausea, although I felt that the anxiety and stress was also significant”.
67 Mr Hebbard prescribed gastric medication and planned to review the plaintiff in 2 months time to see if further medication was required but he did not return. He concluded:
“Mr Caughlan does not have any specific medical conditions which predispose him to delayed gastric emptying and his condition would therefore be classified as idiopathic gastroparesis. The stress at work and generalised anxiety disorder may have contributed to his nausea, but they are not recognized causes of gastroparesis.
Mr Caughlan does not have any specific medical conditions which predispose him to delayed gastric emptying and his condition would therefore be classified as idiopathic gastroparesis. The stress at work and generalised anxiety disorder may have contributed to his nausea, but they are not recognized causes of gastroparesis.”
68 Gastroparesis is a condition of delayed emptying of the stomach. The plaintiff did not further attend Mr Hebbard.
69 Dr D’Ortenzio was cross-examined and he said he was not aware of the plaintiff having any history of nausea. He considered that indigestion was not an anxiety state. Episodic indigestion does not make an anxiety disorder[6].
[6]T41- 44
70 Dr D’Ortenzio did not consider that Associate Professor Hebbard’s diagnosis of idiopathic gastroparesis meant that the plaintiff did not also have anxiety and stress.
71 Dr D’Ortenzio in his last report of 8 December 2009 sent to Dr Rahman, who had become the plaintiff’s general practitioner, stated:
“I understand that you are Scott’s new General Practitioner. I have been seeing him since late 2007 and unfortunately have not been able to make any inroads into his chronic nausea and subsequent anxiety and depressive symptoms.
It has been difficult to ascertain a linear relationship of his difficulties and he has been on a long quest to find a physical basis for his nausea and unfortunately while various things have turned up at times, none has been conclusive and no treatments either for his nausea or for his anxiety and depression have been terribly helpful.
His current treatment is the best that we have been able to come up with and has given him some degree of stability though his symptoms continue to fluctuate. He currently takes Amitriptyline 150 mgs nocte and Diazepam 5 mgs mane and nocte. He has quantity of scripts for the next few months and he will be seeing yourself for ongoing medication.”
Dr D’Ortenzio concluded by stating that he had “no great options in terms of further treatments” and he and Mr Caughlan had decided “to cease meeting at the moment”.
72 The plaintiff consulted Dr D’Ortenzio again in about August 2011, a few months before the hearing for reassessment of his condition.
73 Dr D’Ortenzio gave evidence that there was no foreseeable prospect of the plaintiff obtaining work. He stated:
“Q As at 2009 by which time you say he was stable, what was your opinion as to the plaintiff’s capacity to engage in his pre-accident
A: I felt he had no capacity at all. He was significantly impaired.
Q Did you see him having capacity to engage in any alternative employment to his pre-accident employment? No. I couldn’t see that happening in the foreseeable future.”[7]
[7]T 37
74 In 2009 the plaintiff changed his general practitioner and began consulting Dr Rahman, whose practice is five minutes walk from his home and who bulk bills patients. In addition to these reasons for changing his doctor, he stated that he was disappointed in Dr Smagas’ comments concerning him in correspondence sent to Mr Entwisle. He attends Dr Rahman on a six-weekly basis depending on his need for medication. Dr Rahman prescribes ongoing medications including Valium, Nexium, antidepressants and Motilium.
75 Dr Rahman gave evidence. He stated that the plaintiff’s main symptoms were anxiety and depression. He initially thought that he had gastro-oesophageal reflux disease. His opinion on the plaintiff’s anxiety disorders was dependent on the diagnosis of Dr D’Ortenzio.
76 Dr Rahman gave the following evidence in respect of the plaintiff’s work capacity:
“Q: If his anxiety as you understand it remains at his current level what do you say?
A: No, I don’t think – if it remains at his current level I don’t think he will be able to take any kind of job with this anxiety level.”[8]
[8]T 153 -154
Medico-Legal Reports
77 The plaintiff obtained medico-legal reports from Dr W Glaser and Dr A Kaplan, who are psychiatrists.
78 Dr W Glasser saw the plaintiff in October 2008 and reported:
“He probably continues to suffer from a psychiatric disorder at the present time although I again note that one cannot exclude the possibility of other explanations for his symptoms, particularly Meniere’s disease. Nevertheless, if he does have a psychiatric disorder I would agree with his treating psychiatrist’s diagnosis of a Generalised Anxiety Disorder.
…
If it is accepted that Mr Caughlan is suffering from a Generalised Anxiety Disorder, then there would appear to be good evidence that his employment has been a significant factor contributing to at least the aggravation of his psychiatric problems. I again note my impression that he is a gentleman who reacts badly to changes in his environment (including his working environment) and the evidence available indicates that in this case, some of the changes in his duties which were required from him were presented to him in a fairly arbitrary fashion and without warning.”
79 So far as the plaintiff’s capacity for employment was concerned, Dr Glaser stated:
“ At present, Mr Caughlan is feeling quite demoralised and debilitated by his constant nausea and his psychological problems. This would understandably sap his motivation to resume employment. It is noted that he has not yet had any contact with a rehabilitation agency.
I think that it would still be possible to return him to his employment, doing at least part-time hours in the first instances. With the assistance of a rehabilitation agency, he should negotiate with his employer with respect to his duties and specifically there should be some agreement that he commences on duties which are familiar to him (ie. working on his old machine) and that he is not shifted to different duties without adequate warning, training and consultation with himself. Any change in duties should also be approved by Mr Caughlan’s treating psychiatrist.
He thus, at least currently, is experiencing a significant partial incapacity for work.”
80 Under the heading “Prognosis” Dr Glaser stated:
“His prognosis can currently be regarded with cautious optimism although he may well need a significant further period of treatment and rehabilitation before he becomes fully capable of resuming his usual duties. This period of time could well amount to between six and twelve months.”
81 The plaintiff saw Dr Kaplan on 4 August 2011. He expressed the following opinion:
“Mr Caughlan became increasingly anxious as a result of the stresses he experienced in the course of his work, and those stresses triggered the onset of a Generalised Anxiety Disorder. He has continued to suffer from this condition and it has had a major impact upon his life. His work stresses probably triggered, but did not cause his condition, however, there appears to be no evidence that he was suffering from any significant anxiety previously, and he appears to have been functioning effectively. It is, therefore, unlikely that the condition might have developed in the absence of his work stresses. His anxiety disorder has had a crippling impact upon his ability to lead his normal lifestyle and he has, as a result, developed an Adjustment Disorder with Depressed Mood…
Given the long duration of Mr Caughlan’s psychiatric conditions, his prognosis is likely to be unfavourable and the conditions are likely to persist for the foreseeable future. His psychiatric condition probably renders him incapable of employment. Although he has not responded to treatment in the past, it would be appropriate to refer Mr Caughlan to another psychiatrist for supportive psychotherapy and for monitoring of his psychotropic medication.”
82 The defendant relied on reports from Dr T Entwisle, a psychiatrist, who saw the plaintiff on three occasions. He stated that Mr Caughlan suffered from a Generalised Anxiety Disorder, which was constitutional in origin. His employment had aggravated the condition, but was no longer relevant to his current presentation which was explained on constitutional grounds. In his report of 17 May 2011 he stated:
“ His prognosis is poor. Mr Caughlan is not having appropriate psychiatric treatment at this time. In fact he is not having any treatment in any real sense apart from attending his GP. As such, his now-entrenched psychiatric condition continues to result in a highly isolated lifestyle and his symptoms of anxiety continue to rule his life.
Mr Caughlan remains incapacitated for all employment as a result of his Generalised Anxiety Disorder. As indicated, I do not regard his workplace experiences as causing his condition but rather aggravating that condition. Given the severity and intensity of his ongoing symptoms, I regard that aggravation as having ceased some time ago. I note that Dr D’Ortenzio has a different opinion to my own, and I have commented on this previously (report 8th December 2008).
…
Mr Caughlan is likely to be incapacitated for the foreseeable future in the absence of appropriate psychiatric treatment. Essentially he needs to be hospitalised and treated as part of a multi-disciplinary anxiety disorders program. Until such time as that occurs, no change is likely to occur in respect of his psychiatric symptoms and outlook.”
83 In his report of 8 December 2008 Dr Entwisle made the following comments in respect of a report by Dr D’Ortenzio:
“My response to this is that just because someone is coping with their symptoms, does not mean that those symptoms are not generated by a constitutional disorder. Dr D’Ortenzio himself indicates that this man suffers from an underlying generalised anxiety disorder and Mr Caughlan himself reports being subject to symptoms of anxiety and being a nervous person. These symptoms are longstanding.
Whilst his normal anxiety may have been aggravated by having to work longer and harder than he would have liked, his current presentation so long after that initial incident suggests strongly that this aggravation has now ceased and his condition is explained by his constitutional symptoms rather than any work related condition.”
The parties’ submissions
The plaintiff’s submissions
84 The plaintiff’s case was that prior to December 2006 he was in general good health, even if he had a general nervous disposition. On 1 December 2006 and on 17 September 2007 he suffered panic attacks when working on the MO2 machine. He did not usually operate that machine and his employer expected that he would have to continue to use it in the future. He had previously controlled his anxiety to working on the MO machines by increasing his medication. He continues to be incapacitated for employment in general by reason of his psychological condition. There was little evidence to support a family history of anxiety.
85 The plaintiff’s counsel submitted that his mental or behavioural disturbance or disorder was fairly described as being more than serious to the extent of being severe. They submitted that Mr Caughlan had not had a history of anxiety prior to the events of December 2006. It was sufficient for the plaintiff to show a link between his condition and his work: see Petkovski v Galletti.[9] Even if the Court found that there were co-existing conditions, it was sufficient if there was a cause connected with work.
[9][1994] 1 VR 436
86 They submitted that if is was for the defendant to establish that any pre-existing condition was the cause of the plaintiff’s condition.[10]
[10]Supra
87 The plaintiff’s nausea developed in late 2006 on Dr Smagas’ evidence and should be associated with the work situation that the plaintiff was experiencing in 2006 and 2007.
88 It was only after the second panic attack on 17 September 2007 that Dr D’Ortenzio was satisfied of the nexus between the plaintiff’s employment and his anxiety condition.
89 There was no challenge to the plaintiff’s credit and his employment record was impeccable. These factors put in perspective the plaintiff’s position at the time of the second panic attack and supported the conclusion that he walked away from his work because his condition prevented him from continuing to operate the MO machines.
90 The plaintiff had properly attended and complied with treatment. There was no evidence of other treatment or rehabilitation being available for him in the future.
91 The plaintiff was incapacitated from being able to work and there was no evidence that he was fit to be re-trained. The balance of evidence, including that from Mr Entwisle, was that he was incapacitated for all employment. The evidence of Dr D’Ortenzio Dr Rahman and Mr Kaplan supported that conclusion.
92 In other respects however, Mr Entwisle’s reports should be given less weight. They contained incorrect information about the plaintiff’s family history and his nausea.
93 The plaintiff satisfied the loss of earning capacity of 40 per cent or more: see s.134AB(38)(e) and (f).
The defendant’s submissions
94 Counsel for the defendant submitted that the plaintiff suffered from an underlying organic state that was contributing at least to his anxiety state. They relied on Mr Entwisle’s and Dr Smagas’ reports. They pointed to the fact that when the plaintiff sought assistance from psychologists such as Ms Clancy, he had not mentioned difficulties in operating the MO printing presses.
95 The defendant’s counsel relied on the provisions of s 82(2C) of the Act and submitted that the plaintiff’s injury was an aggravation of a pre-existing injury and that his employment was not a significant contributing factor to it.
96 The plaintiff had to establish an incident or characteristic of the employment which has objectively occurred and which had contributed to his condition. There had to be some event or occurrence in the course of employment, or some characteristic of the work performed, or the conditions in which it was performed, that was a contributing factor to the disorder: see Federal Broom Co. Pty Ltd v Semlitch[11] per Windeyer J.
[11](1964) 110 CLR 626 at 641
97 The requirement that the plaintiff operate the MO machines was not the trigger for the development of a permanent generalised anxiety state. There was a temporary uplifting or exacerbation or aggravation of his pre-existing condition, which had now ceased. This exacerbation was going to happen anyway. The incident at work was of such minor nature that it could not have precipitated a permanent anxiety state, unless the plaintiff had a permanent constitutional anxiety state. His work on the MO machines was not a permanent causative factor of his current condition.
98 There was no contemporaneous record establishing that the plaintiff felt under stress at work, or suffered from work anxiety during the first part of 2007.
99 Dr D’Ortenzio’s first report of July 2007 did not suggest a connection between the plaintiff’s anxieties and suggested that he did have some non-work related worries. The plaintiff had some family history of anxiety. Dr Smagas recorded on 23 October 2006 that the plaintiff seemed to have a long standing indigestion problem and experienced indigestion about six times a month. Mr Hebbard had diagnosed a condition of gastro paresis. The mental health assessment prepared on the plaintiff’s visit to Dr Hsu in December 2006 stated under the heading “Main problems”: “Diagnosis, depression, anxiety. Predisposing factors: have been feeling depressed for a few years. Precipitating factors: stress at work change of role”.
100 Dr D’Ortenzio opinions should not be given weight because he was not prepared to accept that the plaintiff had symptoms of an underlying anxiety state prior to his first panic attack.
101 Dr Rahman’s opinion should not be accepted because he did not receive Dr Smagas’ records and the plaintiff did not provide him with a medical history.
102 The incidents at work in December 2006 and/or September 2007 had not caused an inability in the plaintiff to ever work again.
103 The plaintiff could not prove that he had no ability to be retrained or rehabilitated or undertake suitable employment as required by s134AB (38)(g). Dr Glaser offered a cautiously optimistic approach about these matters in October 2008. Dr Entwisle stated that the plaintiff was likely to be incapacitated for the foreseeable future in the absence of appropriate psychiatric treatment. He needed to be hospitalised and treated as part of a multi-disciplinary anxiety disorders program.
Consideration of evidence and submissions
104 The plaintiff has to establish that he suffered a serious injury on or after 20 October 1999 and to establish sufficiently what the injury is: see s 82 and 134AB (16) of the Act.[12]
[12]Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at 614 [45]
105 Section 82 (1) provides that if there is caused to a worker an injury arising out of or in the course of employment, the worker shall be entitled to compensation in accordance with this Act.
106 The plaintiff has established on the balance of probabilities that he does suffer a Generalised Anxiety Disorder and nausea, to which I will refer collectively as the injury. The evidence establishes that the injury is a permanent severe mental or permanent severe behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury in s.134AB(38) of the Act.
107 The evidence of the plaintiff and of Dr D’Ortenzio, Dr Glaser and Dr Kaplan establish the link between the plaintiff’s injury and his employment. That evidence justifies the conclusion that the injury arose out of or in the course of, or due to the nature of, the plaintiff’s employment on or after 20 October 1999 see s 82 (1) and s 134AB(1) and s 5 definition of injury of the Act. The evidence establishes a direct link between his injury and the work that the plaintiff was asked to perform on the MO printing presses.
108 I prefer the evidence of Dr D’Ortenzio to that of Dr Smagas and Mr Entwisle. I had the opportunity of observing Dr D’Ortenzio give evidence and consider that his assessment accurately reflects the position of the plaintiff on the important issues. The plaintiff was under Dr D’Ortenzio’s treatment for a significant period of time, including the critical period when the plaintiff ceased work. I have taken into account that Dr D’Ortenzio may have understated the plaintiff’s pre-existing history of nausea. However I consider that his evidence, when taken in conjunction with the plaintiff’s, accurately describes the connection between the plaintiff’s work and the Generalised Anxiety Disorder and associated nausea.
109 Even if the plaintiff does suffer from gastro paresis as Mr Hebbard suggests, that does not affect the strength of the evidence that the plaintiff suffered significant and ongoing anxiety, in the nature of a Generalised Anxiety Condition, because he had to operate the MO machines
110 I accept the plaintiff as a witness of truth. No attack was made on his credit. His evidence establishes a direct connection between the requirement that his employer introduced in 2006 that he operate the MO printers more frequently and the onset of panic attacks and disabling anxiety that he experienced.
111 I place importance on the plaintiff’s excellent work record over many years and the deterioration in that record after he was required to operate the MO2 machines. I find that this requirement led to the first panic attack on 1 December 2006, the plaintiff’s subsequent poor work attendance in 2007 and the events of 17 September 2007.
112 I do not consider that the totality of the evidence enables the plaintiff’s anxiety condition and associated nausea as being an exacerbation of an existing constitutional condition that has now ceased. Rather I consider that the panic attacks of December 2006 and September 2007 and the anxiety and nausea that the plaintiff experienced in association with them and following them, were quite unlike anything that the plaintiff had previously experienced. The evidence establishes that defendant’s requirement that the plaintiff work more frequently on the MO machines was the probable explanation for the anxiety and nausea that the plaintiff experienced and continues to experience.
Pain and suffering consequences
113 I find that within the meaning of s134AB(38)(d) that the pain and suffering consequences to the plaintiff of his mental or behavioural disturbance or disorder is, when judged by a comparison with other cases in the range of mental or behavioural disturbances or disorders fairly described as being more than serious to the extent of being severe.
114 I make that finding because of the nature and extent of the medical treatment that the plaintiff has required, the medication he takes, the distress he suffers and the restrictions he experiences in his everyday life. He has given up all his previous social and sporting activities and spends much of his time in bed at home. He lives a “hermit like existence”.
115 I accept as accurate the plaintiff’s statement of his current condition, which was in the following terms:
“I tend to stay in my room and in the house because of the severity of my psychiatric condition and associated symptoms. I suffer from severe anxiety problems and have suffered from panic attacks. I am nervous and tense continuously and also have a chronic problem with nausea caused by my psychiatric condition. This is the worst of my symptoms to cope with and I have lost significant [a] significant amount of weight compared to when I was well and lifting weights at the gym. I have also suffered problems with severe depression and on frequent occasions I have had suicidal thoughts. I still suffer from tinnitus and also have trouble getting to sleep.”
116 To most people the plaintiff’s reaction to being required to work on the MO machines would be seen as irrational and out of proportion. However this will often be in the nature of mental or behavioural disturbances. As I have stated there has been no attack on the plaintiff’s credit.
117 Dr D’Ortenzio’s evidence establishes that the plaintiff’s disturbance or disorder is permanent in that it is likely to last for the foreseeable future. I make that finding. Most of the other medical opinion supports that view, although some of it attributes that position to the fact that the plaintiff is not receiving appropriate psychiatric treatment.
Loss of Earning Capacity
118 The plaintiff also has to establish that he has a loss of earning capacity of 40 per cent or more measured in the manner set out in s.134AB(38) (f) of the Act. He has to establish that he will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more: s 134AB(38)(e)(i). He has to establish that the relevant loss of earning capacity will after the date of the hearing continue permanently: s.134AB(38)(e)(ii).
119 The determination of the loss of earning capacity of 40 per cent or more involves applying the provisions of s134AB(38)(f) and making a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
120 Without injury earnings are to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s working capacity. After injury earnings are the plaintiff’s gross income from personal exertion, expressed at an annual rate, which he is earning whether in suitable employment or not; or capable of earning in suitable employment.
121 The plaintiff has the onus of proof in relation to loss of earning capacity including in relation to the matters contained in s 134AB (38) (e), (f) and (g).
122 The plaintiff has earned no income form personal exertion since ceasing employment with the defendant.
123 The plaintiff submitted that the amount of $48,254, which were the plaintiff’s gross earnings for 2007 were the appropriate without injury earnings. No figures as to increase in the wages that the plaintiff would have earned after 2007 were provided. The defendant did not suggest a without injury figure.
124 I accept the figure of $48,254 as the figure that most fairly reflects the plaintiff’s without injury earnings.
125 To succeed in his loss of earning capacity claim the plaintiff must show that on a permanent basis he does not have the capacity to earn in excess of 60 per cent of that figure of $48,254.
126 Suitable employment is defined in s 5 of the Act as employment in work for which the worker is currently suited, whether or not that work is available, having regard to the matters set out in the paragraphs numbered (a) to (f).
127 I find that the plaintiff is not capable of earning of earning any income at present in any employment. None of the medical evidence supported a view that he was capable of currently working in any employment.
128 I have considered whether the plaintiff has established a permanent loss of earning capacity of forty per cent on a permanent basis. The plaintiff has not worked since September 2007. He has not attempted to undertake any work. On one view it might be doubted that a 41 year old man, who is not receiving treatment for a Generalised Anxiety Disorder, has proved that his condition will continue permanently.
129 Dr Glaser considered that the plaintiff has some work capacity. Dr D’Ortenzio says that he needed to be treated as part of a multi- disciplinary anxiety disorders program, but that he did not have capacity to engage in his previous employment or alternative employment in the foreseeable future. Dr Kaplan considered that the plaintiff was probably incapable of employment. Dr Entwisle reached the same conclusion although identifying different causes of his condition.
130 The evidence is that the plaintiff attempted lengthy psychiatric treatment from Dr D’Ortenzio, but it did not assist him and no further treatment was suggested. There are suggestions from some of the doctors that the plaintiff might be hospitalised for more intensive treatment. But nothing specific is proposed and the outcome of any such treatment is not predicted.
131 I have accepted the plaintiff’s evidence about his condition, the effect that it had on his life and his incapacity for further work, including part time work. The evidence provides no basis for concluding that the plaintiff is likely to work in the foreseeable future.
132 On all the evidence I conclude that the plaintiff has established that he has established that he has suffered a loss of earning capacity of forty per centum on a permanent basis.
133 Under s134AB(38)(g), the plaintiff bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
134 I have set out the relevant parts of the medical opinions on this issue at earlier points in this judgment. While some doctors eg Dr Glaser suggested that the plaintiff might be able to return to work on a gradual basis, most of the opinion was to the contrary.
135 No specific retraining or rehabilitation program was proposed. There was no detail as to what the retraining or rehabilitation might involve. I have accepted the plaintiff’s evidence of his present condition. I find that he has discharged the onus of proving the matters required by s 134AB(38)(g).
136 On the basis of my previous findings I conclude that the plaintiff has established that his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders fairly described as being more than serious to the extent of being severe: see s 134AB(38)(d).
137 I find that the plaintiff has established that he does not have nor would he have after rehabilitation or retraining, and taking into account his capacity for suitable employment after the injury, a capacity for any employment, including alternative or further or additional employment, which if exercised, would result in his earning more than 60 per cent of gross income from personal exertion as determined in accordance with s 134AB(38)(f) had the injury not occurred.
138 The plaintiff has established that he will after the date of this decision continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more:s134AB (38)(e)(ii).
Conclusion
139 I grant the plaintiff leave to bring proceedings at common law to recover damages for pain and suffering and loss of earning capacity arising out of and in the course of his employment with the defendant and occurring after 20 October 1999.
- - -
0
2
0