Cayetano v Victorian WorkCover Authority
[2024] VCC 1830
•20 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-07026
| Ruth Cayetano | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2024 | |
DATE OF JUDGMENT: | 20 November 2024 | |
CASE MAY BE CITED AS: | Cayetano v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1830 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Serious injury – sub-paragraphs (a) and (c) of the definition of “serious injury” – injuries to the spine and/or psychological injury – multiple incidents
Cases cited:Transport Accident CommissionvKatanas [2017] HCA 32; Humphries v Poljak [1992] 2 VR 129
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013
Judgment: Application granted under sub-paragraph (c) only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC Ms R Heffernan | Zaparas Lawyers |
| For the Defendant | Mr A Moulds KC Ms K Bradey | Hall & Willcox |
HER HONOUR:
1The plaintiff, Ruth Cayetano, seeks leave under section 335 of the Workplace Injury Rehabilitation and Compensation Act2013 to issue common law proceedings for the recovery of damages in respect of injuries to the spine and/or psychological injury suffered as a result of two incidents which occurred on 15 September 2019 while she was employed by Amberly Health Care as a Senior Medical Receptionist.
2The first incident occurred at around 10.00am on a Sunday when she was the only receptionist on duty at the clinic, working with one doctor. A number of patients and children were in the waiting room. A man, who appeared drug affected, walked into the clinic and attempted to access the clinic’s toilets, which were locked. He was agitated and became verbally abusive when Mrs Cayetano invited him to use the public toilets in the building and would not give him access to the clinic’s toilet. He started kicking the clinic’s toilet doors, then left but returned shortly thereafter. He picked up a steel stand and used it to strike various doors in the clinic. Mrs Cayetano called police. The man left the clinic, and the patients locked the clinic doors. Police attended but were unable to locate him.
3Mrs Cayetano remained at work and at 12.00pm went to the clinic’s toilet. The second incident unfolded when she was ready to leave the toilet cubicle. She was unable to unlock the door. There was only a small gap between the door and the floor. She banged on the door. She did not have her phone with her. She then called her husband from her Apple watch and told him she was stuck in the cubicle. He came to the clinic but was unable to get the key to open the cubicle door. He managed to remove the lock but could not turn the latch. He passed her some pliers under the door and instructed her to remove three hinges from the door. Once the hinges were off, her husband pushed the door to no effect. A short time later, the door fell, striking Mrs Cayetano on the left side of her neck and shoulder and causing her to fall to the floor.
THE ISSUES
4Mrs Cayetano says that as a result of both incidents, she has suffered a permanent psychological impairment resulting in consequences including ongoing disabling psychological symptoms, a total incapacity for work which she loved, as well as a massive impact on her social, domestic and recreational activities.
5Mrs Cayetano says that as a result of the second incident she suffered aggravation of her pre-existing and symptomatic problems in the spine, resulting in a long-term impairment of the function of the spine which renders her unable to work full-time as a medical receptionist. She relies on medical evidence to the effect that, at best, she is physically able to work a maximum of 16 hours per week in such a role. The parties agree that if she is found able to work a maximum of 16 hours per week, Mrs Cayetano will have established a permanent loss of earning capacity of more than 40%.
6The defendant says that the main reason for Mrs Cayetano’s inability to return to more than 16 hours a week is due to her psychological symptoms and not due to any physical impairment. For this reason, the defendant says Mrs Cayetano cannot make out the narrative test for serious injury under subparagraph (a) of the definition of serious injury. In relation to the application under subparagraph (c) of the definition of serious injury, the defendant says that because she is not having intensive psychiatric or psychological treatment and is not taking anti-depressants or other prescription medication for her psychological symptoms, but is getting help with her fear of public toilets and her self-esteem, Mrs Cayetano has not established that the nature, symptoms and consequences of her psychological injury are, for her, “severe” nor that the injury is objectively “severe” when compared with the range of comparable cases.[1][1]Humphries v Poljak [1992] 2 VR 129 at 140 (Crocket and Southwell JJ).
PLAINTIFF’S EVIDENCE
7Mrs Cayetano swore two affidavits in support of her application, on 15 August 2023,[2] and 20 September 2024.[3] I summarise their contents briefly.
[2] Plaintiff Court Book (“PCB”) 11.
[3] Ibid 21.
8She was born and educated in the Philippines. She completed a tertiary degree in business administration and worked in administration before moving to Melbourne with her husband in 1999. She stayed at home to care for their two children and returned to work in around 2004 as a Claims Processor at QBE. She has a certificate III in Pathology Collection, and she worked as a part time pathology collector at Dorevitch Pathology from approximately 2007 to 2013.
9She started working for Amberley Health as a Medical Receptionist on around 18 July 2005, at first part-time, but soon after began working between 36-42 hours per week. She performed administrative tasks and would sometimes assist with pathology collection if a nurse was unavailable. She worked every second Sunday and would sometimes work overtime. From approximately August 2019 onwards, Mrs Cayetano was the only receptionist working on Sunday. She loved her work there and was on good terms with the clinic’s patients.
10Mrs Cayetano was involved in three transport accidents prior to the incidents the subject of this application. The first occurred in around 2002 and involved a collision but did not cause her any injury. From around 2007, she suffered from episodes of lower back, neck and right shoulder pain. She was referred to a neurosurgeon in relation to the referred pain from her neck. At that time, a CT scan of her neck revealed a mild right C5/6 disc protrusion. She was able to manage this pain with medication and physiotherapy. The second transport accident occurred in around October 2010. It involved a collision which caused her some upper back pain and some pain in her neck, right glute and shoulder. She began physiotherapy treatment with Mr Jim Wong at that time for her chronic neck and back pain.
11The third transport accident occurred on about 28 August 2012 and involved a collision which caused an aggravation of her neck and right shoulder pain.
12A CT scan of the lumbar spine on 31 March 2017 showed an annular disc bulge at L3/4, L4/5 and L5/S1 without significant neural compromise. MRI of the cervical spine on the same day revealed a disc bulge at C5/6 and a high-grade impingement of the right C6 nerve root and subtle deformation of the left C7 nerve root.
13Mr Craig Timms performed a C5-C6 anterior cervical discectomy and fusion on 8 August 2017. Mrs Cayetano stated that her right arm pain mostly disappeared as a result of this surgery.[4] An MRI of the cervical spine on 12 November 2019 revealed that the fusion at C5-6 was intact and that there was a mild-moderate neural foramen stenosis at C6-7.
[4] Transcript (“T”) 11 L12-31, T12 L1-3; Affidavit of Ruth Cayetano sworn 15 August 2023 (PCB 14); Report of Dr Lewis dated 3 September 2024 (PCB 85); Report of Dr Slesenger dated 31 August 2024 (PCB 98).
14In her first affidavit, she stated that after the incidents she was unable to work, as sitting for long periods caused her pain in the neck, right shoulder, back, right arm and hand. She was anxious about having to use the clinic toilet, and would hold on until she could drive home on her lunch break. This resulted in her suffering a urinary tract infection. She briefly returned to work on 11 November 2019 after a trip to the Philippines to see her sick mother, but she felt very anxious and stressed so left early. She has not returned to work since then.
15She stated that from time to time she has flashbacks to being locked in the toilet. If she uses a public toilet, she becomes anxious and often does not lock the door. She is also worried that someone may approach her in public and abuse her, or that she will see either the man who came to the clinic that day or another drug affected person.[5] She was a patient at Amberley Health clinic and broke into tears when she needed to use the toilet there in August 2022. On another occasion in 2022, her general practitioner at the clinic, Dr Bezhan invited her to confront her fears by again going into the toilet where she was injured, but Mrs Cayetano felt overwhelmed, fearful and anxious.
[5] T51 L19-22.
16Whereas prior to the injury she was a busy social person who would go to parties and see her friends often, she has lost her confidence and does not want people asking her why she is not working. She does not like to leave her house.
17She stated that she was advised by doctors to avoid taking medication for her pain because her mother had kidney problems. However, she does take Panadol around four times per month when her pain becomes unbearable. She feels unable to return to work as a receptionist because sitting for long periods at a computer causes her increased pain in her neck, arm and back. She also struggles to concentrate for long periods and confidently communicate with members of the public.
18In her second affidavit, Mrs Cayetano stated that her sleep has deteriorated due to anxiety and reliving parts of the incident. To help with sleep, she takes Temazepam PRN 10mg once every two weeks, Sleep Assist (over-the-counter medication) and drinks 1-2 glasses of red wine before bed.
19In terms of medication, Mrs Cayetano used to take Zoloft and Lexapro but stopped taking it due to side effects (lethargy and low mood). She takes Sevikar for high blood pressure.
20In December 2023, Mrs Cayetano’s father passed away unexpectedly and she travelled to the Philippines for 9 days. She also travelled overseas in June and July of this year for her 60th birthday. She and her husband flew to Japan, went on a cruise and, on the way back to Australia, visited the Philippines with their son and daughter. She stated that being back home in the Philippines provided comfort as she was not reminded about the incident.
21Mrs Cayetano previously attended Cenna Medical Centre which occupies the same premises where the incident occurred but found it stressful going there. She moved to First Health Medical Centre in Casey and between January to August 2024 saw her GP Dr Arefi. Since Dr Arefi left the clinic, she has seen a few other doctors. In January 2024, she also resumed seeing psychologist Kate Hambleton (who decided to delay her retirement plans).
22Mrs Cayetano continues to have flashbacks of the incident including the face of the attacker and being locked in cubicle. She regularly has nightmares that she is locked in a dark room or the clinic owners lock her in a room.
23Driving makes her anxious and she depends on her husband to drive her around. She avoids social events, is sensitive to loud noises, and feels constantly on edge. She has no desire to shower or bathe.
24Mrs Cayetano reports that she continues to suffer lower back pain either as a dull ache or occasional shooting pain. She walks daily and can walk for an hour before needing a rest. She can also bend and lift things, however avoids doing it too often or with anything too heavy. She also has constant a dull ache in right side of her neck and occasionally a sharp pain. Movement on the right side of her neck is restricted. She wakes up to daily headaches with a stiff neck and shoulder.
25She remains off work and does not believe she would be able to return to a role that requires her to sit for long periods or type due to lower back and neck pain. She believes she would be unable to concentrate due to low mood, anxiety and fatigue.
26At the hearing, Mrs Cayetano agreed that she enjoyed a trip to Japan and the Philippines for a few weeks in mid-2024 because she was with family and friends who did not ask her about the incident and because her husband was with her all the time. She still avoids locking toilet doors in shopping centres. She had been happy working with the patients at the practice in the six months prior to the incidents but unhappy at the stresses between the doctors and the new management, which made her feel like the “meat in the sandwich”.[6] Although she wanted to stay on there, she was planning to work more hours at another practice with a specialist dermatologist. She agreed that her main reason for not returning to work was psychological, but said that with her neck and low back pain she would be unable physically to work full-time. She said that she has trouble sleeping, and that anti-depressant medication did not help her. She said that she has no social life, refuses invitations to go out, and only goes to church. She does not like to see people. She feels safe at home and is scared when she is away from home that she will be triggered by seeing a drug affected person. She feels safe with her husband, but could not go to work without him. She loved working and misses that as well as her previous busy social life. She is seeing her psychologist every three weeks.
[6] T30 L7.
Evidence of Mr Cayetano
27Antolin Jr. Cayetano, Mrs Cayetano’s husband, swore an affidavit on 20 September 2024.[7] He states that his wife was once a confident, happy and motivated person who loved working and socialising. Since the incident, she has become very dependent on him and is easily frightened, particularly of loud noises. When she needs to use a public bathroom, he stands outside and she won’t lock the cubicle. She also avoids social contact.
[7] PCB 26.
28Mr Cayetano stated that bending, lifting and carrying heavier items aggravates Mrs Cayetano’s right shoulder. Gardening helps her relax but causes increased shoulder and lower back pain. She has only driven once since the incident due to anxiety, and has difficulty sleeping, regularly experiencing nightmares. She sometimes has low mood and he has to convince her to shower, whereas before the incident, she would shower twice daily. She gets scared if she sees someone who looked like the drug affected man who attended on the day of the incident.
PSYCHIATRIC INJURY
Reports of treating practitioners
Kate Hambleton, psychologist
29Counsel for the plaintiff tendered the following material from Ms Hambleton: a medico-legal report, dated 26 August 2024;[8] letters to ACCS dated 27 February 2020[9] and to UHG dated 12 November 2021;[10] and one letter to Dr Bhargava dated 17 January 2020.[11]
[8] Ibid 50-60.
[9] Ibid 64-67.
[10] Ibid 61-63.
[11] Ibid 68-69.
30In her letter to Dr Bhargava, Mr Hambleton reported that as a result of the incidents on 15 September 2019, Mrs Cayetano was suffering from three psychological conditions: PTSD; moderate depression and anxiety; and moderate complex trauma. Her PTSD included symptoms of insomnia, nightmares, poor concentration and memory issues, social withdrawal, and mild hypervigilance with significant avoidance cues.
31In her letter to ACCS, Ms Hambleton stated that Mrs Cayetano sustained two separate psychological injuries as a result of the two incidents which occurred on 15 September 2019. She suffered a moderate adjustment disorder and moderate PTSD as a result of being threatened/abused by the person who intruded into the practice; while she suffered from a moderate depressive disorder and PTSD as a result of being locked in a confined space, unable to escape and fearing she would not be found. Ms Hambleton considered that ongoing psychological treatment as well as psychotropic medication were required.
32In her letter to UHG, in support of Mrs Cayetano’s claim for Total and Permanent Disability, Ms Hambleton confirmed a diagnosis of PTSD, with severe symptoms which had prevented Mrs Cayetano from working at all. She had developed actual and preference avoidance cues which had made it impossible to break the pattern of hypervigilance. Her condition was very difficult to treat, and progress had been limited. Ms Hambleton recommended referral to a psychiatrist with medication to manage her symptoms; out-patient treatment with EMDR therapy, and complex trauma based therapy. She considered it highly unlikely that Mrs Cayetano would ever return to work.
33In her medico-legal report, Ms Hambleton diagnosed Mrs Cayetano with the following conditions: severe PTSD, moderate adjustment disorder; moderate depressive disorder; severe anxiety; and moderate complex trauma (PTSD coupled with persistent anger and distrust towards the world, constant hyperarousal in everyday living situations, massive repeated avoidance behaviours, including the unwillingness to leave the house on her own). She indicated that PTSD and complex trauma were difficult to treat, had a poor prognosis and would not be cured by extensive treatment (EMDR, CBT, ACT, TMS).[12] She noted that Mrs Cayetano’s treatment had been delayed due to the time taken for the PTSD diagnosis to be made, and noted that only half of individuals with delayed treatment experience some recovery in the first four years, with the remainder unlikely to recover. She noted that many PTSD patients felt they were not improving and ceased medication, which resulted in a worsening of symptoms. She noted that Mrs Cayetano had ceased taking antidepressants and recommended that due to the severity of her symptoms over recent months she resume taking such medication. She concluded that Mrs Cayetano was treatment resistant due to her inability to cope with or change her emotional reactions and was permanently incapacitated for all work due to her psychological conditions.
Dr Amina Bezhan, General Practitioner
[12] Eye Movement Desensitization and Reprocessing; Cognitive Behaviour Therapy; Acceptance and Commitment Therapy; Transcranial Magnetic Stimulation.
34Dr Bezhan, one of Mrs Cayetano’s general practitioners, provided a report dated 11 May 2020[13] to the defendant’s insurers indicating that she had been treating Mrs Cayetano since 21 January 2020 for PTSD symptoms relating to the incidents and recommended psychological treatment. On 25 June 2021,[14] Dr Bezhan certified that Mrs Cayetano was suffering from “acute traumatic stress” and secondary PTSD as a result of being locked in the toilets at work, and recommended psychological as well as psychiatric treatment.
[13] PCB 76.
[14] Ibid 70.
Plaintiff’s medico-legal reports
Dr Justin Lewis, psychiatrist
35Dr Lewis provided a medico-legal report to the plaintiff’s solicitors dated 3 September 2024.[15] At the time of preparing his report, he had, among other documents, the psychological report of Ms Hambleton and the psychiatric report of Dr Kotler. He did not have the neuropsychological report of Dr Rachel O’Meara.
[15] Ibid 79.
36He noted her symptoms and diagnosed her with chronic PTSD and secondary Major Depressive Disorder of moderate severity. He considered that being confronted with the aggressive male was the main significant contributing factor to the development of the PTSD but that her ongoing traumatisation centres around both incidents: she has nightmares involving both incidents; is claustrophobic as a result of the second incident; and is fearful of others because of the first incident. He noted that she has become socially very withdrawn and isolated secondary to depression, poor drive and agoraphobia. He noted her markedly restricted range of interests, her inability to identify any current recreational interests or hobbies, and her unwillingness to leave the house without her husband. She had also become irritable, angry and irrational with her husband, which affected their relationship. Her lowered libido also affected their relationship.
37Dr Lewis concluded that both conditions are chronic and therefore permanent and cause Mrs Cayetano to be permanently incapacitated from all employment. He felt that her psychiatric prognosis is quite poor, but could potentially be improved by review of her medication by a psychiatrist and the introduction of medication to reduce the severity of her nightmares.
Dr Eli Kotler, Psychiatrist
38Dr Kotler provided a report dated 13 December 2019[16] to the insurer, and a further report dated 19 September 2022[17] to the defendant’s solicitors.
[16] Ibid 140.
[17] Ibid 133.
39In his first report, Dr Kotler took a history of the incident and symptoms flowing from it and diagnosed a mild adjustment disorder with low mood and anxiety. He noted that her symptoms fluctuated and were sometimes moderate. He was unable to conclusively link her current mental state with the incidents.
40In his second report, Dr Kotler noted that Mrs Cayetano had been off work since October 2019, that she had been taking antidepressants for two years and was seeing a psychologist every four to six weeks. He was confident that she was suffering either a Major Depressive Disorder in partial remission or PTSD which was in early recovery. He considered that her condition was a result of the incidents, and that her prognosis was guarded. He felt that she required psychiatric treatment, and psychiatric review of her medication. He also recommended trauma-focused therapy and a trial of dynamic psychotherapy. He considered that she had no work capacity from a psychiatric perspective because she was unable to leave the home without her husband and had significant issues with attention, concentration and short-term memory.
Defendant’s medico-legal reports
Dr Rachel O’Meara, Clinical Neuropsychologist
41Dr O’Meara provided a neuropsychological report dated 28 March 2024.[18] Mrs Cayetano told her that she had frequent word finding difficulties, often went blank or did not recognise locations, was now very withdrawn socially, had a low mood, had symptoms of anxiety and traumatic stress, did little around the house, relied on her husband to administer her medication, and had ceased driving. She was having psychological therapy every three weeks and taking temazepam for sleep. Dr O’Meara administered a number of tests and noted that she demonstrated some unusual test taking behaviours and failed two out of four validity tests. This meant that the overall assessment could only be said to reflect the minimum possible level of cognitive functioning.
[18] Defendant Court Book (“DCB”) 21.
42Overall, Dr O’Meara considered that she demonstrated intact performances over a number of cognitive domains, but performed below most age-matched peers in a number of domains. She performed severely below premorbid expectations on tests relating to new learning or recall of verbal information, recognition of visual information, and aspects of executive attention. Dr O’Meara noted that her presentation at interview was inconsistent with the presentation noted by Ms Hambleton, and concluded that the neuropsychological assessment could not be considered a valid or reliable indication of her true level of neuropsychological functioning. She noted that Mrs Cayetano had been prescribed new antidepressant medication but had not yet commenced taking it. She recommended psychiatric review of her condition and treatment.
Associate Professor Peter Doherty, Psychiatrist
43Associate Professor Doherty provided a report dated 13 September 2024.[19] Mrs Cayetano told him her mood was 4/10 and that she was always nervous. He noted that she was not taking anxiolytic or antidepressant medication. He indicated that she had ceased seeing a psychologist.[20] He noted that since ceasing work she reported persistent symptoms which significantly disturbed her social functioning. He opined:
…Since then, there has been the report of symptoms of significant severity not in keeping with the expected recovery from the known injuries or the expected psychological response to them. The current presence of symptoms is not in keeping with the passage of time or treatment given.
….She was slow in answering questions, appearing to be thinking about the answer to give.[21]
[19] Ibid 43.
[20] Ibid 51.
[21] Ibid.
44He concluded that he was “not sure there is a diagnosable psychiatric condition currently present.”[22] He then referred to Dr O’Meara’s report and said that he agreed with her. He stated:
….The history given to me of the consequences of the events of 15 September 2019 appears to be overstated and exaggerated. When examined by me there were no objective signs of the presence of a psychiatric condition.[23]
[22] Ibid 52.
[23] Ibid 51.
45He considered that from a psychiatric perspective, she was capable of working full-time.
Submissions
46Counsel for the defendant submitted that the examining psychiatrists received incomplete histories from Mrs Cayetano that did not mention her overseas trips, and that none of them, apart from Associate Professor Doherty, had the neuropsychological report of Dr O’Meara. The defendant relied on the opinion of Associate Professor Doherty that Mrs Cayetano is not suffering from any diagnosable psychiatric condition. Alternatively, it was submitted that because Mrs Cayetano is not receiving psychiatric treatment nor taking any anti-depressant or anti-anxiety medication, and has received some benefit from the psychological treatment with Ms Hambleton, the sequelae of the psychological injury suffered as a result of the incidents does not meet the narrative test for serious injury.
Findings and reasons
47I found Mrs Cayetano to be a straightforward witness, and I accept her account of the psychological symptoms she has suffered as a result of the incidents. These were confirmed in the affidavit of her husband and in the specialist reports, apart from that of Associate Professor Doherty. I accept her account that she asked Dr O’Meara for Panadol during the neuropsychological assessment. I accept her evidence that she ceased taking Lexapro because of its negative side effects, and that she continues to take Temazepam to help her sleep, along with over the counter medication.
48The evidence of her treating psychologist was detailed and considered. The two main diagnoses made by Ms Hambleton, those of PTSD and Major Depressive Disorder, were largely confirmed by the psychiatric opinions of Dr Lewis and Dr Kotler. Each of them considered that Mrs Cayetano has a raft of significant psychological symptoms which have impacted severely on her quality of life, her ability to sleep and to function at home, as well as on her ability to function outside the home. She has become totally dependent on her husband and cannot leave the house without him. These symptoms have become chronic, indicating a poor prognosis, and they will permanently prevent her from returning to any work.
49I found the report of Associate Professor Doherty of little assistance as it was so out of step with the conclusions reached by the treating psychologist and the two psychiatrists and provided no basis for the conclusion that her symptoms were inconsistent with the natural history of her conditions. I accept Dr O’Meara’s conclusion that she could not give a valid or reliable neuropsychological opinion because of some of the inconsistencies in testing scores. However, I note that she was able to identify a number of deficiencies in Mrs Cayetano’s cognitive skills. I consider that her opinion in no way detracts from the psychiatric analyses of Mrs Cayetano’s symptoms, the psychiatric diagnoses, and the assessment by the treating and medico-legal experts of the consequential limitations on her occupational, domestic, recreational and social activities.
50On the authorities,[24] while the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be assessed as severe, this is only one of many ways in which the question may be approached. The correct thing to do, in each case, “is to first identify and bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test,” making a value judgment as to whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as “severe”.
[24] Transport Accident CommissionvKatanas [2017] HCA 32 [23] – [27] (Kiefel CJ, Keane , Nettle , Gordon and Edelman JJ).
51In this case, the contrast between Mrs Cayetano’s psychological state before the incidents and that after the incident could hardly be more dramatic. Prior to the incidents, she was a socially active, independent working women with two jobs. She loved her work, her contact with patients and with family and friends. She hosted functions at home, socialised and travelled comfortably outside her home, and suffered no diagnosable psychological conditions. As at the date of the hearing, on the other hand, the weight of psychological and psychiatric opinion is that she continues to suffer disabling symptoms of PTSD and Major Depressive Disorder, which have been chronic and therefore less amenable to successful treatment modalities. The symptoms have rendered her reclusive, unable to leave the house alone, unable to contemplate working, with anxiety, intrusive thoughts and nightmares, compromised concentration and memory, severe avoidance behaviours, ongoing hypervigilance and complete dependence on her husband. She is permanently incapacitated for any work due to her psychological condition.
52For these reasons, I am satisfied that the incidents caused a psychological injury to Mrs Cayetano resulting in a long-term mental disorder (chronic PTSD and Major Depressive Disorder) and that one of the consequences of the long-term mental disorder is her permanent incapacity for any work. It follows that she has established a permanent 40% loss of earning injury capacity, and that the consequences of her psychological injury are more than serious, to the point of being severe.
53For the sake of completeness, although it is unnecessary for me in the circumstances to consider the pain and suffering consequences of her permanent, severe, mental disorder, I indicate that I accept Mrs Cayetano’s evidence, which is consistent with what her husband has stated as well as with what she has told her psychologists and examining psychiatrists concerning those pain and suffering consequences, which I have outlined at paragraphs 7 to 45 above. I am satisfied that those pain and suffering consequences are more than serious, to the point of being severe.
INJURY TO THE SPINE
54In her affidavits, as outlined above, Mrs Cayetano described the three transport accidents she was involved in in 2002, 2010 and 2012. After 2012, she continued to suffer neck and right shoulder pain until her surgery in August 2017. That surgery appeared to be successful and her right arm pain resolved.
55As at the date of her first affidavit, she was taking Panadol when needed for her neck and back pain, up to two to three times per week. She did not think she could return to work as a receptionist because prolonged sitting and typing caused her neck pain, right arm and back pain.
56At the hearing, Mrs Cayetano agreed that she resigned as a pathology collector in 2013 because of her neck and right arm problems; and that the surgery on 8 August 2017 solved the neck and shoulder pain and the referred symptoms in the right arm. She agreed that she continued to complain to her doctors about neck and right shoulder pain until August 2019 and had continued with physiotherapy for her neck and back symptoms up to 13 September 2019. She said that she never had time off from work for neck or back pain after her surgery in 2017, and worked full-time until the incident. She said that after the incident she took Panadol when she had severe pain. She stopped physiotherapy with Dr Wong in late 2023 and moved to a different practitioner. She said that she takes Panadol when her neck pain becomes severe, which happens about twice per month. She felt that, if not for her psychological condition, she was physically capable of doing some part-time work but would not be reliable because of the unpredictability of her pain.
Plaintiff’s medico-legal reports
Dr Joseph Slesenger, Occupational Physician
57Dr Slesenger reported on 31 August 2024 that Mrs Cayetano complained of pain in the neck (radiating to the right arm), shoulders and lower back. She told him the neck pain and lower back pain developed immediately after the incidents. The neck and arm pain are constant. The lower back pain is worse with activity and she is limited to walking/standing or sitting for 30-60 minutes.
58She gave a history that her neck surgery in 2017 was successful, that she returned to work after 4 weeks, and had a full range of neck movements and no residual neck symptoms.[25]
[25] PCB 98.
59Dr Slesenger reviewed the radiological reports[26] and concluded that as a result of the incident in the toilet Mrs Cayetano suffered soft tissue injuries to the cervical and lumbar spine, as well as aggravation of degenerative disease of those areas, leading to chronic pain in the neck and lumbar spine with no confirmed evidence of radiculopathy. He considered that the right shoulder impairment was due to radiating symptoms from the cervical spine. He considered that the soft tissue injury to the left shoulder had resolved. He noted that she had full range of right shoulder movements and could undertake her pre-injury employment. However, due to her lumbar spine impairment, he imposed restrictions of 16 hours per week work with no repetitive bending or twisting, no prolonged static postures, no lifting or carrying more than 5kgs. He imposed the same restrictions in relation to her cervical spine impairment. He considered that these restrictions would be permanent.
Mr Raf Asaid, Orthopaedic Surgeon
[26] CT Cervical Spine Scans dated 19 December 2007 (PCB 131-132), 26 July 2010 (PCB 129), 16 April 2012 (PCB 127-128); Right Shoulder Ultrasounds dated 17 April 2012 (PCB 126), 21 December 2017 (PCB 130); MRI on the Spine dated 4 August 2012 (PCB 125); MRI on the Brain & Cervical Spine dated 11 April 2016 (PCB 123-124); CT Scans on Lumbar Spine dated 31 March 2017 (PCB 122), 21 September 2019 (PCB 120); MRIs on Cervical Spine dated 31 March 2017 (PCB 121), 12 November 2019 (PCB 118-119); Ultrasound & X-Ray on Right Hand and Wrist dated 26 April 2019.
60Mr Asaid reported on 7 June 2024[27] that Mrs Cayetano complained of pain in the neck (radiating to the right shoulder) and lower back. The back pain was worse than the neck pain. She told him she was taking Zoloft daily and Panadol and Nurofen as required, but was not having any active treatment. Mr Asaid reviewed the radiological reports. Mrs Cayetano told him that in spite of the three car accidents which left her with chronic neck, right shoulder and lower back pain, she had been able to work as a receptionist without difficulty until the incidents.
[27] PCB 109.
61Mr Asaid diagnosed aggravation of cervical and lumbar spondylosis and a soft tissue injury to the right shoulder (which has largely resolved) as a result of the incidents. He considered that her symptoms were likely to be permanent and that, taking her back injury or neck injury alone, she would have the “theoretical capacity” to work in alternative suitable employment with restrictions (able to sit, stand, take regular breaks as required), but noted that her capacity for work was likely to be “greatly impacted by her psychological state.”[28]
[28] Ibid 114.
Defendant’s medico-legal reports
Dr Anthony Menz, Orthopaedic Surgeon
62Dr Menz provided a report to the insurer dated 9 December 2019[29] and a report to the defendant’s solicitors dated 27 September 2022.[30] In his first report, he noted her complaint of ongoing neck pain and low back pain since the incidents, for which she was taking Tramal and having physiotherapy. He noted her history of the toilet door falling on her left side (neck and shoulder) and he diagnosed a soft tissue injury (bruising) to those areas. He could not explain the reason for her low back pain. He noted that she had been having physiotherapy. He noted that she had a good range of movement in her neck and lumbar spine. He felt that she was physically capacity of working full time in her pre-injury duties.
[29] DCB 4.
[30] Ibid 10.
63In his second report, Dr Menz noted a complaint of neck pain (6/10) on two days per fortnight. She still had lumbar pain which came on several months after the incident. She was able to cook, clean and do the washing. She could garden for 30 minutes at a time and could walk for 60 minutes. She was taking Panadol occasionally. She told him she was physically capable of working, but not psychologically capable of working. He concluded that the symptoms of bruising to the left side of her head and shoulder were consistent with the door falling on her but that the bruising and all symptoms “should have resolved within three months”.[31] Dr Menz opined that the incident no longer materially contributed to her injury and considered that she was physically capable of returning to her pre-injury duties and hours.
[31] Ibid 17.
Submissions
64Counsel for the plaintiff relied on the diagnosis of aggravation of degenerative changes in the lumbar and cervical spine and the opinion of Dr Slesenger that Mrs Cayetano is permanently restricted to working a maximum of 16 hours per week.
65The defendant submitted that Dr Slesenger’s opinion was based on incomplete information concerning Mrs Cayetano’s symptoms prior to the incidents and should be treated with caution, particularly as Dr Slesenger recommended a review of her pre-and post-incident clinical records. It was submitted that the opinion of Mr Asaid was also flawed because he did not have the full history of the ongoing treatment for chronic lower back, neck and right should pain prior to the toilet incident. Mr Asaid also did not impose any limit on the hours she could work in suitable employment.
66The defendant relied on the opinion of Dr Menz that in the incident in the toilet Mrs Cayetano suffered soft tissue injuries to shoulder and neck which should have resolved.
Findings and reasons
67It is clear on the medical material that prior to the incidents Mrs Cayetano had suffered neck and right shoulder pain since 2012 which became significant in 2017 and resulted in her having surgery by way of a C5-6 anterior fusion in 2017. She recovered after a year or so but continued to have physiotherapy from late 2018 for right shoulder and right neck pain which radiated down the right forearm[32] right up until the time of the incidents. She continued to take 1- 2 Panadol tablets per day for her neck and right shoulder pain, and continued to consult her then general practitioner, Dr Bhargava, about this neck and right shoulder pain. He discussed with her the possibility of a referral to a neurosurgeon prior to the incidents, but Mrs Cayetano did not believe she saw one.
[32] See the treating physiotherapist’s clinical notes at DCB 61-66.
68I am satisfied on the evidence that as a result of the toilet incident on 15 September 2019, Mrs Cayetano suffered an aggravation injury to her neck and right shoulder pain. I accept her evidence that some months after the incident she also experienced back pain and that she continued to have physiotherapy treatment for neck, right shoulder and mid-back pain.[33]
[33] Ibid.
69I note that there were no reports from any treating doctors concerning the impact of the incidents on the condition of Mrs Cayetano’s spine. I consider that Mr Asaid and Dr Slesenger did not have a full history of Mrs Cayetano’s pre-existing issues with the spine including the ongoing treatment for those issues right up until the second incident. I consider that Dr Slesenger’s opinion concerning the impact of the lumbar symptoms was made in the context of suggesting a review of her pre-injury and post-injury clinical note. When combined with Dr Menz’s finding of a full range of lumbar motion and inability to explain Mrs Cayetano’s lumbar pain, along with the view of Mr Asaid and Mrs Cayetano herself that her lack of work capacity was mostly due to her psychological state, I am not satisfied that Mrs Cayetano has discharged her onus to establish a more than 40% loss of earning capacity flowing from any aggravation of the condition of her spine as a result of the second incident. I am also unable to be satisfied on the evidence before me, that Mrs Cayetano has discharged the onus she bears to establish that, in terms of pain and suffering, the consequences of the second incident meet the narrative test for serious injury.
CONCLUSION
70Leave is granted to Mrs Cayetano to bring proceedings for the recovery of damages in respect of the psychological injury suffered as a consequence of the incidents at work on 15 September 2019.
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