Chelberg v Urban Maintenance Systems Pty Ltd
[2011] VCC 973
•20 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04213
| PETER CHELBERG | Plaintiff |
| v | |
| URBAN MAINTENANCE SYSTEMS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 and 9 March 2011 |
| DATE OF JUDGMENT: | 20 May 2011 |
| CASE MAY BE CITED AS: | Chelberg v Urban Maintenance Systems Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 973 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.93 – termination of payments – discussion of meaning of “incapacity for work” – application of Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mrs R Jordan | Shine Lawyers Pty Ltd |
| For the Defendant | Ms M Britbart | Herbert Geer |
| HIS HONOUR: |
Introduction
1 Peter Edward Chelberg, who I shall refer to as “the plaintiff”, seeks the reinstatement of weekly payments of compensation from 13 June 2010 to date and continuing pursuant to the provisions of the Accident Compensation Act 1985, as amended (“the Act”). Urban Maintenance Systems Pty Ltd, which I shall refer to as “the defendant”, denies that the plaintiff has an entitlement to ongoing weekly payments from 13 June 2010.
Background
2 The plaintiff is a sixty-three year old (born 30 December 1947) man who commenced employment with the defendant in April 2006 initially as a contractor coordinator in the essential services area. On or about 10 or 11 September 2009, he suffered an acute myocardial infarction and lodged a Claim for Compensation pursuant to the provisions of the Act on or about 17 September 2009 alleging:
“Heart attack (3 surgeries).
Severe harassment/vile verbal bullying/stress and anxiety.”
3 The claim was ultimately accepted and the plaintiff received weekly payments of compensation and ancillary benefits up until 13 June 2010, when such payments were terminated pursuant to s.114 of the Act.
4 By Notice dated 27 May 2010, Messrs Gallagher Bassett, an authorised agent of the Victorian WorkCover Authority (“the Authority”), advised the plaintiff that his weekly payments of compensation would cease from 13 June 2010 on the grounds that:
•
“Your incapacity for work is no longer materially contributed to by an injury arising out of or in the course of your employment.
• You are no longer incapacitated for work. •
Your incapacity for work is no longer materially contributed to by an injury which entitles you to compensation.”
5 Messrs Gallagher Bassett relied on, in particular, opinions obtained from the psychiatrist, Dr Timothy Entwisle, and the cardiologist, Dr Michael Jelinek.
6 I was informed by the parties the only ground sought to be relied on by the defendant to justify the termination of payments was that the plaintiff was “no longer incapacitated for work”.
7 The plaintiff, Dr Marino Alexopoulos (the treating general practitioner of the plaintiff) and Dr Christopher M Goods (the treating cardiologist of the plaintiff) all gave evidence and were cross-examined. Each party tendered a number of documents.[1]
[1] Refer to Annexure A
Relevant Legal Principles
8 If a worker suffers injury arising out of or in the course of his employment, such injury entitles him to various types of compensation. Section 93 of the Act deals with weekly payments. It states:
“If a worker’s incapacity for work results from or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.”
9 Both parties submitted that the critical words in s.93 are “incapacity for work”. If a worker has an “incapacity for work” resulting from or materially contributed to by the compensable injury, then other sections of the Act provide for the duration and quantification of such weekly payments.
10 I accept such submission.
11 Both parties referred to the High Court decision of Arnotts Snack Products Pty Ltd v Yacob.[2] That decision specifically dealt with s.11 of the Workers’ Compensation Act 1926 (NSW), but involved a consideration of the concept of “incapacity for work”. A majority of the High Court[3] questioned whether “incapacity for work” means:
[2] (1985) 155 CLR 171
[3] Mason, Wilson, Deane and Dawson JJ
[4] Arnotts Snack Products Pty Ltd v Yacob (op cit) at page 173
“(a)
physical incapacity for actually doing work in the labour market in which the employee works or may reasonably be expected to work; or
(b) physical incapacity resulting in actual economic loss.”[4]
12 In that matter, Mr Yacob was employed by Arnotts Snack Foods Pty Ltd to do work that was, in the main, clerical, but which also involved, to a limited extent, the climbing of ladders and lifting and manipulation of moderately heavy boxes. On 5 February 1980, whilst so employed, he fell from a chair and aggravated an existing condition in his back which caused him to have pain and limitation of activities involving his lower back.
13 Because he could not lift boxes or climb, he was unable to do the “precise work which formerly he could and did do”.[5] However, he could do normal clerical work and, in particular, he could do that portion of his former duties which were purely clerical and did not involve climbing or lifting.
[5] Arnotts Snack Products Pty Ltd v Yacob (op cit) at page 173
14 Mr Yacob failed in his claim at the initial hearing before the Worker’s Compensation Commission of New South Wales on the basis that although the judge accepted that he had “physical consequences of his injury”, he was still capable of performing clerical work, short of the additional activities involving climbing of ladders and the lifting and manipulation of moderately heavy boxes. The judge concluded that Mr Yacob’s ability to earn was not impaired.
15 In the New South Wales Court of Appeal, it was accepted that Mr Yacob was suffering a “partial incapacity” because he was “physically unable to do some of the things that he could do before, for example, climbing” and that “this inability affected him relevantly and in his employment market”.[6]
[6] Arnotts Snack Products Pty Ltd v Yacob (op cit) at page 175
16 The High Court upheld the Court of Appeal decision and in particular, stated:
”In the present case because the Commission found that the respondent's injury disabled him from performing part of his pre-injury work, it followed that he was partially incapacitated for work — he was unable to undertake clerical duties which involved climbing, lifting and bending. His incapacity for work, due to injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him.”[7]
[7] Arnotts Snack Products Pty Ltd v Yacob (op cit) at pages 179-180
17 The High Court essentially accepted the view that “incapacity for work”:
“… denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work … .”[8]
[8] Arnotts Snack Products Pty Ltd v Yacob (op cit) at page 177
18 The parties accepted the issue becomes whether or not the plaintiff has an “incapacity for work” within the meaning of the test set out by the High Court in Arnotts Snack Foods Pty Ltd v Yacob. Considering that the defendant was seeking to terminate weekly payments, counsel for the defendant indicated that it was for her client to discharge the onus in establishing that the plaintiff did not have an incapacity for work.[9]
[9] T 198, L6-8; I consider such a concession to be appropriate: see generally Phillips v Commonwealth (1964) 110 CLR 247; Green v Victorian WorkCover Authority [1997] 1 VR 364 and in particular per Tadgell JA at 372 and per JD Phillips JA at 381-2.
The Evidence of the Plaintiff
19 After leaving secondary school, the plaintiff obtained a Design Drafting Certificate and a Certificate of Air Conditioning and Refrigeration from the Swinburne Technical School. The plaintiff gave evidence that he has had the following employments:
(a)
In about 1973, he commenced employment with Colonial Mutual Life (“Colonial Mutual”) as an assistant in the property maintenance department. He remained in that job until about 1985. He described his duties when employed by Colonial Mutual in the following terms:[10]
[10] T 93, L27 – T 94, L2
“Typically I was doing all of the office refurbishment, the layout works for council permits, arranging for the various contractors to come and do the work or having our own partitioning team do that work. Now, from time to time there would be maintenance issues arose within each property that we were working on.”
The plaintiff described that such activities involved not only buildings in which Colonial Mutual had offices but also investment buildings. The work involved travel in the metropolitan area to Geelong and Warrnambool on occasion.
(b)
In or about 1986, the plaintiff commenced as a building maintenance manager with the Rialto where he remained for about two years. That work involved him remaining in the Rialto Towers and checking out what maintenance was required and organising contractors to perform the maintenance. That job also required “lots of” paperwork.
(c)
The plaintiff left the Rialto to take up a “national role” with the Tourism Leisure Corporation as the national building maintenance manager where he remained for about two years. The Tourism Leisure Corporation was a hotel operator, operating about twelve hotels located throughout Australia. His job involved overseeing the maintenance of the twelve hotels, all of which had different building codes, regulations and different environmental conditions. The plaintiff ceased that employment due to the holding company going bankrupt.
(d)
The plaintiff was then employed by the National Tennis Centre as a maintenance manager, where he remained for about four and a half years. That employment required similar duties as that performed at the Rialto and did not generally require any travel.
(e)
The plaintiff was then employed by BS Facility Management. The plaintiff gave evidence that the new term for “building maintenance” was “facility management” and his job was to try and establish some facility management contracts for them. He only remained there for nine months, as the business was unsuccessful.
(f)
The plaintiff was then employed by Transfield Services for about two years as a facility manager which involved managing the larger Telstra exchanges. The plaintiff believes that he remained in that employment until late 1999 or early 2000. His employment came to an end after conflict with one of his managers, resulting in the plaintiff suffering some anxiety for which he was treated with anti-anxiety medication by his local general practitioner. At that time, the plaintiff was experiencing stress at work, difficulties with sleeping and problems with his muscles shaking (due to stress).
20 After a period of months off work, the plaintiff commenced employment with City Facilities as an essential services manager in 2000. The plaintiff described how body corporate organisations would contact City Facilities to provide and organize compliance with statutory requirements and auditing of the essential services involved with any particular building. When the plaintiff first started, there were about four apartment blocks and when he left in early 1996, there were about sixty or seventy apartment blocks.
21 When asked what sort of work he was doing there, the plaintiff gave the following evidence:
“A:
Walking the buildings for monthly sign-off inspections, managing the contractors, and at the end of the twelve months, issuing what was called then a form 10 or an annual essential safety measures report, which is a statutory statement to the council to say that all things have been maintained.”
HIS HONOUR:
Q:
“So just for a practical level, Mr Chelberg, give an example of where you would have been sent to and give me some details of a particular job. Where would a place be where you may have been sent to at that time?---
A:
Around in Latrobe Street, there’s three five-level apartment blocks for the body corporate, walking those through the front – the back stairs to see that people could get out from their level out to the footpath, which is a requirement of the regulations; to check that the air conditioning had in fact been serviced, as in the fire panel – we’ve got to check the logbooks to see that the contractor has actually been in to say that he’s done the work.”[11]
[11] T 47, L4-21
22 The plaintiff gave evidence that an apartment block could be a three or four storey building, or a very large building.[12]
[12] T 48, L9-10
23 The plaintiff was cross-examined in some detail as to his employment duties with City Facilities. He gave the following pertinent evidence:
(a) Each apartment had to be inspected monthly; (b) The inspection of each apartment building required him to walk up and down stairs and through hallways; (c) The apartment blocks were mainly around metropolitan Melbourne; (d) He had other people assisting him in the job and at the time of him leaving, there was one other full-time employee who was brought in to do the simpler monthly inspections; (e) When performing that type of work, a normal working week was from about 7.30 am to 6.00 pm five days a week, with some variations; (f) The plaintiff left that employment to go to a job which he believed “was going to be less stressful; more staff to do the work”;[13] [13] T 105, L6-7
24 The plaintiff also gave evidence that there was some acrimony between him and his employer, in that certain promises as to a share of the profits were not forthcoming. When pressed about seeking a job with less stress was one of the reasons he left City Facilities, the plaintiff stated:
“Shortly before I started looking I had just walked the Melbourne Airport for six weeks to do a full building audit. Now, add that to what you have said I think that might explain it.”
25 The plaintiff accepted that at the time of his cessation of employment with City Facilities, he was experiencing “low energy”, “muscle aches” causing him to attend his medical clinic on 6 March 2006 and being prescribed Oxazepam.
26 The plaintiff commenced employment with the defendant on 18 April 2006 and he was appointed the contract coordinator for the Department of Justice contract. When queried as to what that job involved, the plaintiff stated:
”We had to do quarterly site inspections of the prisons and the courts as part of the statutory regulations and one of those was that UMS took on that they would do the walk-throughs, whilst they engaged contractors to do the monthly inspections.”[14]
[14] T 48, L19-23
27 In particular, the plaintiff described his duties to involve:
(a) Travelling to various places throughout the State, including Mildura, Portland, Orbost and Corryong;[15] (b) Working varied hours and sometimes up to twelve hours a day – for example, when he left at 6.30 am to travel to Mildura but stopping at Kerang, Swan Hill and Robinvale to perform work and arriving at Mildura at 6.30 pm;[16] (c) Walking the paths of travel through to exit doors in any particular building and this on occasion would require the use of stairs;[17] (d) He was also required to perform a large amount of paperwork. [15] T 49, L8-11
[16] T 49, L12-18
[17] T 50, L30 – T 51, L4
28 After working for the defendant for about eight months he was promoted to the role of contract manager and he described the duties of such position in the following way:
“Monthly financial reports to UMS, a monthly contract report to the Department of Justice as well, wherein I had to identify the number of times that the contractors actually did their work on time or outside of that monthly period, the financials, as in how much had been spent on remedial works that had been done as part of a phone call, something had broken down.”[18]
[18] T 51, L31 – T 52, L6
29 The plaintiff was also required to continue attending the courts but now had the assistance of a contract coordinator.
30 On 8 January 2008, he was moved “sideways” and became a contract coordinator. He described the duties in the following way:
“I was asked to take a sideways move to assist the other contract managers in a technical support role and they brought in another contract manager who I was to report to for some three or four months. He asked me in the May to re-cost all of the service contracts going forward for the next eighteen months and during the April period and the July period we still had to do all of the quarterly inspections. So besides the works for that, there was also some other contract work that a different group of auditors were doing which I was supervising at the time.
Q: Did that continue until August 2008 when your role changed
again?---A: Yes. Q: What was your title from August 2008?--- A: They changed my role to senior consultant technical and compliance. I came from within the Department of Justice contract to this new group which essentially was the essential services auditing team to be the senior consultant.”[19] [19] T 53, L27 – T 54, L13
31 The plaintiff was still required to perform inspection work at the courts and prisons, together with the associated reporting and auditing of such work.
32 At about the time he was made a senior consultant with the defendant, he was asked to attend and audit the thirty-one aged care retirement villages throughout Victoria managed by Prime Life. Such work involved travelling by car “a fair bit”.[20] During this period of time, the plaintiff could work up to sixty to seventy hours per week (including weekends) in order to complete the required reports.
[20] T 55, L24
33 Later, he was required to “cost” an audit of all sites of Prime Life throughout Australia which required him to travel interstate. Over a period of five weeks he would fly out on Monday morning and come home on Friday night.
34 The plaintiff had arrived home from New South Wales on or about 3 September 2009 and was completing reports when he suffered a “heart attack” on or about 10 or 11 September 2009.
35 The plaintiff was admitted to hospital under the care of a cardiologist, Dr C Goods, and later was under the care of his general practitioner, Dr Marino Alexopoulos. He underwent a coronary angioplasty and the placement of coronary stents.
36 The plaintiff resumed employment with the defendant in or about October 2009, performing light duties for three days a week from roughly 9.00 am to 4.00 pm.[21] He described those duties to be:
“Walking metropolitan railway stations looking for graffiti that had been painted out to see whether it was bleeding through the paint. I wasn’t looking for new, but on the condition – because the graffiti department had to issue a report to Connex.”[22]
[21] T 61, L19-25
[22] T 61, L26-31
37 The plaintiff would drive himself to various railway stations and was able to cope with that work although he found it “difficult” when there were very hot days. At times, the plaintiff described suffering fatigue.
38 The plaintiff performed such railway station work for about two to three weeks, increasing his days of work to four and thereafter performing office work which the plaintiff described as a “short-term temporary role”.[23] During this period of time, he was in close contact with one of the people that gave him a lot of work prior to his heart attack and this “wound me up”.[24]
[23] T 65, L10
[24] T 66, L10
39 By January 2010, the plaintiff was working five days a week in the office.[25] He was working from about 8.00 am/8.30 am till 4.30 and was office-bound and was “handling” such work.[26] In January and February 2010, he was feeling “stressed at work” when it was suggested to him by the human resources manager that it was hoped that he was “looking for work”.[27] The plaintiff gave evidence that he commenced to experience chest pains from about October/November 2009, which continued into the new year.
[25] T 119, L31 – T120, L2
[26] T 120, L2
[27] T 120, L10 – 16
40 The plaintiff was cross-examined extensively about his attendances on his general practitioner over the period that he returned to work. Whereas the plaintiff asserted that he was experiencing chest pain which he believed he reported to his doctor, it was put to him that at no time prior to 25 February 2010 was there any mention of chest pain and indeed, on occasion, there was recorded a positive assertion that he had experienced no chest pain. On 25 February 2010, a Dr Wayne Pearce obtained a history that the plaintiff had had chest pain on the right side of his chest for much of that day. On that particular day, the plaintiff underwent a conciliation in relation to the acceptance of his WorkCover claim and conceded that he was feeling stressed in relation to such conciliation.
41 The plaintiff ceased work in February 2010 because of “chest pains”.[28] He has continued to suffer from chest pains and described his current symptoms as follows:
“Light headedness. If I bend down I have to be very careful when I go to stand up if I’ve bent down for – or no I’ve got to squat – I’ll squat with my arm on my knee so that I don’t fall over. If I’m sitting in a comfortable chair other than the lounge chair, I literally have to push myself off the chair because of the low blood pressure. I commented to one of the cardiologists that I see and he looked at me and he said ‘that’s good, Peter, your heart medication is doing what we want, it slows your heart down and your blood pressure’.”[29]
[28] T 65, L18
[29] T 66, L15-25
42 The plaintiff is able to drive but not over long distances and can only walk for short periods of time.[30] Furthermore, he has difficulty with “concentration” and as he described it “staying on track is an issue”.[31]
[30] T 66, L26
[31] T 67, L6-11
43 The plaintiff presently takes Coversyl and Plavix for his heart condition. He also takes half an aspirin daily. He continues to attend Dr Alexopoulos once a month and Dr Goods, his cardiologist, every three to four months.[32]
[32] T 67, L15-24; T 68, L1-3
44 Later in his evidence, the plaintiff again described in broad terms the essential functions that he undertook when employed with the defendant. He stated:
“Predominantly an essential services would inspect or audit the property. We, as I said, did quarterly building checks to see that the powers of travel, the exit doors, but when it came to the annual that is a whole new exercise where you have got to walk the whole building from top to bottom, whether it be sub floor or above floor and the ceiling space for the air conditioning or on the roof and all things in between, electrical, mechanical, building, lifts, whilst we didn’t actually do the work ourselves we had to ensure that the contractors were doing that work.”[33]
[33] T 87, L11-21
45 The plaintiff gave evidence that he believed he would be incapable of doing the type of work he was performing with the defendant or indeed City Facilities. The plaintiff stated:
“The inspection process involves walking the whole building and that could include climbing to the roof on a vertical access ladder, walking the stairs up or down, because when you get to the bottom of the car park there isn’t always a lift to come back up to where you can pick up the lift, walking and climbing into services shafts and climbing into the bottom of that riser, to see that there’s no penetrations in the concrete slabs or a fire rated wall, which would be above the ceiling space.
Q:
In terms of the reporting or the auditing function that you have mentioned, how does your medical condition in respect of your cardiac condition and your stress condition affect your ability to carry out that part of the job?---
A:
The concentration, the short-term memory loss – like I used yesterday the word ‘concentration’ it just – sometimes it’s there, sometimes it’s not. The ability to work under deadlines, timelines, is just – it increases my anxiety level.”[34]
[34] T 88, L22 – T 89, L9
(my emphasis).
46 Under cross-examination, various propositions were put to the plaintiff in relation to his capacity for employment. I refer to the following evidence:
“HIS HONOUR:
Q: Do you say you can do some work?--- A: Not what I used to do. Q: No, I didn’t ask that?--- A: No, I was going to clarify that. If it’s sitting at a desk perhaps but
not for long periods of time.MS BRITBART:
Q: I suggest you would be able to do full time work sitting at a desk,
wouldn’t you?---A: No. Q:
The type of work you were doing leading up to leaving work in February 2010, if you take the stress issue about the retrenchment or about, you know, this bloke who was upsetting you sitting nearby, other than that you were physically capable of doing that work, weren’t you?---
A: Not at the end of it, no. Q: At the end of it you had problems with stress and right side chest
pain, is that right?---A: Yes. Q: But up until then you were quite capable of doing full time work,
weren’t you?---A: I was doing the work, yes. Q: Not expressing any problems doing the work with your GP were
you?---A: Well, I thought I had. Q:
I suggest that you told the GP for months from the time you went back to work until these issues arose in February 2010 that you were coping well with work, whether the inspection work at the train stations or the desk work?---
A: Could you say that again, sorry. Q:
I suggest to you from the time you went back to work in late October or early November ’09, up until these issues in the workplace arose in mid-February, you told your doctor that you were coping well with work whether it was the work inspecting the train stations or the desk duties, you were coping well with all of it?---
A: No.”[35] [35] T 124, L24 – T 125, L22
47 Furthermore, under cross-examination, the plaintiff gave evidence that he walks for about forty minutes each day.[36] He is capable of gardening for about two hours[37] and attends a gymnasium about once a week.[38] He commenced seeing a physiotherapist, Mr J Tortensson, in May or June 2010 in relation to the chest pain. The plaintiff also accepted that he underwent further cardiac testing in late 2010 – an exercise Thallium test – which revealed no cardiac symptoms following a period of exercise.
[36] T 127, L29 – T128, L2
[37] T 128, L24-31
[38] T 130, L6-10
48 Again, counsel for the defendant pressed the plaintiff as to his capacity for employment:
“Q: I suggest to you, Mr Chelberg, that currently you would be well capable of working eight hours a day doing a job. Well, let’s take the job you were doing immediately before leaving UMS in February 2010. You would now be well capable of doing that. A job focussed job, full time hours. What do you say to that?--- A: I would struggle to do that work for eight hours a day. Q: What is it that you say that would be a struggle for you eight hours
a day?---A: The physical and mental – sitting there, the concentration the
memory loss.Q: You’re getting no treatment for any memory loss or any psychological symptoms at the moment, are you?---
A: No. Q:
I suggest to you that physically you would be well capable of walking through buildings, walking through corridors and checking access to exits?---
A: Not for eight hours a day. Q:
I’m not asking you whether you had to do it eight hours a day. But you would be able to do some of that work, wouldn’t you, walking around a building?---
A:
As I’ve said, I can probably do two hours tops. Two, two and a half hours and that’s it. There’s not a lot of the job that will only take you two hours.”[39]
[39] T 135, L8-28
49 Later in his cross-examination, the plaintiff gave the following evidence:
“Q: I suggest you would be able to do the type of work that you were doing at the beginning of your employment with City Facilities as an essential services manager, which involves visiting buildings around Melbourne?--- A: No. Q: You say not. What aspect of that do you say you would not be
able to do?---A: The continuous walking, the use of the stairwells, being able to
look at what is in or through the floor above the ceiling.Q: Is that because of your chest pains – no, what is it?--- A: Light headedness, to bend down but the chest pains are just there all of the time. The sheer concentration levels. The amount of energy that’s available. I don’t have what I used to have.”[40] [40] T 136, L17-29
50 In re-examination, the plaintiff expanded on this theme when he was asked about the work with City Facilities. He stated:
“Each of the properties that one went into was at least a three hour job.
When you go to the site then you got back to the office.
Q: Why wouldn’t you be able to do that now?--- A:
The walking up and down the stairwells, having to get onto the roof, the climbing into the cupboards to get underneath to check for the holes in the floor or the holes in the wall.”[41]
(my emphasis).
[41] T 137, L31 – T 138, L1-6
The Evidence of the Treating Doctors
51 Dr Marino Alexopoulos is a legally qualified medical practitioner and is a Fellow of the Royal Australasian College of General Practitioners. He is a member of the Vermont Health Care Clinic. He adopted his medical reports dated 15 June 2010;[42] 5 November 2010;[43] 17 December 2010;[44] and 4 March 2011.[45] Furthermore, Dr Alexopoulos adopted a letter that he wrote on 10 August 2010.[46]
[42] See Exhibit 1 at page 26 PCB
[43] See Exhibit 1 at page 33 PCB
[44] See Exhibit 1 at page 36 PCB
[45] See Exhibit 1 at page 39 PCB
[46] See Exhibit 1 at page 30 PCB
52 In his reports, Dr Alexopoulos records that the plaintiff suffered an acute myocardial infarction on 11 September 2009 in the context of stress related to his work with the defendant. He further describes how the plaintiff underwent coronary angioplasty and placement of a coronary artery stent before resuming work on 26 October 2009. Dr Alexopoulos notes that the plaintiff presented to one of his colleagues in late February 2010 with “chest tightness” and subsequently, the plaintiff underwent a stress echocardiogram on 5 March 2010 which demonstrated mild-moderate ischaemic cardiomyopathy with increased lateral and apical hypokinesis with exercise consistent with ischaemia. Furthermore, Dr Alexopoulos noted that Dr Goods (the treating cardiologist) performed a coronary angiogram on 26 March 2010 which demonstrated stenosis in various coronary arteries of the plaintiff.
53 In his report dated 15 June 2010, Dr Alexopoulos states, in part:
“Since that time, Mr Chelberg has continued to experience atypical right- sided central chest pains and fatigue that are exacerbated by stress. He has not returned to work since the initial conciliation meeting.
It is my opinion that Mr Chelberg is now suffering from an adjustment disorder with anxious mood and experiences ongoing atypical chest pains that are likely to be psychosomatic in nature. That is, his current symptoms are related to stress and anxiety resulting from his initial injury, his involvement with WorkCover and the conciliation process. … In my opinion, Mr Chelberg should not return to his pre-injury duties at UMS. However he may be able to make a gradual return to office type work with an alternate employer. There would have to be limitations placed on the number of hours worked at least initially. His cardiologist, Dr Goods, has advised against him working extended or overtime hours and travelling interstate for work. I am in agreement with that.”[47]
[47] See page 27 PCB
54 Dr Alexopoulos records that he referred the plaintiff to the psychologist, Mr Peter Carlisle, because of observations that the right side chest pains complained of by the plaintiff were “to some degree exacerbated by his posture and certain movements such as sitting, walking and lying on his right side.”[48] Ultimately Dr Alexopoulos considered that the cause of the chest pain was a thoracic pain syndrome with the differential diagnosis including lower thoracic facet joint dysfunction, myofascial pain syndrome or some type of psychosomatic pain disorder. He considered that any relationship between the infarct suffered by the plaintiff and the development of the thoracic pain syndrome was “unclear”, save that a unifying factor may be that of his stress response contributing to both the development of a myofascial pain syndrome or some other form of pain disorder.
[48] See page 33 PCB
55 In his final medical report dated 4 March 2011, Dr Alexopoulos states:[49]
“Mr Chelberg has experienced workplace related stress and anxiety contributing to the development of an acute myocardial infarction on 11 September 2009. He has required coronary angioplasty and stenting. Since then he has continued to experience chest pains and fatigue that are exacerbated by psychological stress and by physical activity.
In my opinion Mr Chelberg is not physically nor psychologically capable of performing his pre-injury duties, as you stated them, on an unrestricted basis. He may be able to perform sedentary office work for a limited number of hours in the day, however other than preparing reports he would not be suited to work that required long hours or be required to be available after hours, frequent driving or aeroplane travel, or requiring long periods of walking, climbing or any other physical exertion.”
(my emphasis).
[49] See page 39 PCB
56 Such opinion was in response to a letter from the solicitors for the plaintiff which advised that the “pre-injury duties” of the plaintiff involved the following:
•
“travelling (including plane and driving) to sites Australia wide to conduct audits;
•
inspection of those sites which included walking around the sites, ascending and descending stairs and walking on roofed areas when required;
•
preparing reports on whether those sites comply with relevant legislative building standards and regulations;
• being on call after hours (including nights and weekends); •
being required to conduct audits and reports on multiples sites at any given time.”[50]
[50] See Exhibit D
57 Under cross-examination, Dr Alexopoulos was taken to various entries in his notes after the plaintiff resumed employment in October 2009:
(a) Consultation on 13 November 2009, at which time the plaintiff had been back at work for about two weeks and was coping well. He had some numbness and tingling sensation in his upper limbs which the doctor could not say whether such was related to his heart or not;[51] (b) Consultation on 27 November 2009, when Dr Alexopoulos recorded that the plaintiff was coping well working four days a week; (c) Consultation on 21 December 2009, when Dr Alexopoulos recorded currently coping well with four days weekly and that he would “increase to full time, deskbound job”; (d) Consultation on 27 January 2010 (with Dr Pretty, another doctor at the clinic). No record of any complaints. (e) Consultation on 18 February 2010, when Dr Alexopoulos recorded that the plaintiff physically feels well but continues to experience stress related to work;[52] [51] T 151, L15-28
[52] T 155, L28-29
58 Throughout these consultations, there was no complaint of chest pain or any particular difficulty undertaking the work.
59 When queried about the note that the plaintiff continued to experience stress at work on 18 February 2010, Dr Alexopoulos thought that the causes of such stress were the continued proximity of a particular employee of the defendant who had allegedly treated the plaintiff in a harassing manner in the past, the approaching conciliation, and the suggestion by the defendant that he should look for alternative work. In particular, Dr Alexopoulos gave evidence that he would be happy for the plaintiff to have continued working if these particular stress factors had been removed.
60 In particular, Dr Alexopoulos gave the following evidence:
“Q: It was your understanding that at that time he was working full
time?---A: Yes, he was, five days a week, yes. Q: Albeit at a desk job?--- A: Yes. Q:
But you would not have had concern, I take it, if he had been asked, for example, by his employer to do work other than desk work, for example, the type of inspections that he had been doing at the train stations in the earlier part of the return to work period?---
A: If he was doing that work, I would have not have concerns. Q: Because as far as you understood he coped well with that work,
hadn’t he?---A: Yes.”[53] [53] T 157, L21-31
(my emphasis).
61 Dr Alexopoulos also gave evidence in relation to attendances by the plaintiff on 23 February 2010 (seen by a Dr Khan) and 25 February 2010, on which day there is recorded that he had had chest pain for much of the day. Dr Alexopoulos accepted that that is the first reference to chest pain in the clinical notes. He also described that when such complaint was made, the plaintiff underwent a stress echocardiogram which showed some evidence of ischaemia, and a coronary angiogram which suggested that the chest pains complained of by the plaintiff were not typical of myocardial ischaemia.
62 Dr Alexopoulos accepted that from about April 2010, the plaintiff was capable to go back to work and indeed, the certificates given by Dr Alexopoulos were that he not work for the defendant but contained no restrictions on his hours of work. However, Dr Alexopoulos considered that the plaintiff was best served by performing office-bound work limiting physical exertion. In particular, he gave the following evidence:
“Q: What did you perceive to be the issue about physical exertion with
a man who has had an infarct?---A:
This man continued to have – redeveloped chest pains that were not typical of ischaemia but I wasn’t prepared to completely rule it out and I had no evidence from the cardiologist to suggest that he could rule it out either. So, hence, I wanted to be fairly cautious still. The cardiologist had approved, his return to work, but there is always some reservations about it. Largely when – a deskbound job is assumed to be less taxing on the heart …
Q: What limitation if any, should be placed on his work?--- A:
I think he should be restricted from long hours or from travelling interstate, long hours of driving, and certainly from a need to work beyond what would be considered normal office hours.
Q: Yes, to avoid stressful situations?--- A: Yes, but it’s very difficult to place limitations from a medical
perspective, yes.”[54]
[54] T 163, L11 – T 164, L1
(my emphasis).
63 In re-examination, Dr Alexopoulos gave the following evidence:
“Q: A man who has a cardiac condition, should he be doing long hours
every day?---A: No, should not. Q: Should be climbing up stairs and up and down buildings for three
hours a day or more?---A: No, he should not. Q: No, should be under stress about writing reports?--- A: No, he should not.”[55] [55] T 173, 26-31
(my emphasis).
64 Dr C Goods is a specialist physician and cardiologist and commenced treating the plaintiff at the Knox Private Hospital. He adopted medical reports prepared by him dated 14 May 2010[56] and 7 March 2011.57 Furthermore, he adopted a letter from him to Dr Alexopoulos dated 3 November 2010.58
[56] See Exhibit 1 at page 53 PCB
65 In his report dated 14 May 2010, Dr Goods notes that prior to his infarct in September 2009 the plaintiff had been working very long hours and travelling extensively in the period prior to the infarct. Since the infarct he has had significant fatigue. In that report, he notes that the plaintiff has been “partially incapacitated” since his infarct but would be able to return to office type employment with a graduated return to work over a number of weeks.
66 In his report dated 7 March 2011, Dr Goods states, in part:
“Mr Chelberg suffered a moderate to large myocardial infarct on 11 September 2009. He subsequently underwent balloon and stenting procedures of two out of his three main coronary arteries. Subsequent investigations including repeat coronary angiography, echocardiography and thallium scans however revealed evidence of a moderately to large myocardial infarct with ongoing impairment of his cardiac function.
Since this initial event, Mr Chelberg has been troubled by exertion of shortness of breath, general fatigue and episodes of light-heartedness particularly after exertion. There is no doubt that his symptoms are related to reduced cardiac function, although mild to moderate anxiety and depression may be contributing to his symptoms.
His previous employment required him to travel throughout Australia by a plane and car with long days of travel. His job was also physically demanding with him being required to walk around building sites, ascending and descending stairs and walking in roofed areas. Given Mr Chelberg’s physical condition it would be impossible for him to continue to fulfil these duties.
With respect to ongoing employment given his condition, he will be restricted to office duties with hours restricted to an eight hour day with limited tolerance for travel. His physical condition is permanent and I do not see any possibility of a return to a more active occupation.”
(my emphasis).
67 Dr Goods gave evidence that the exercise thallium test undertaken by the plaintiff on 11 November 2010 revealed no evidence of ischaemia but evidence of an infarct in September 2009. In particular, he gave the following evidence:
“Q: I suggest that the exercise thallium test revealed was that there
was no exertional symptoms in the heart. Is that right?---
See Exhibit 1 page 53A PCB
See Exhibit 1 page 53 PCB
A:
Yes, he did six minutes on the Bruce protocol which is moderate exertion without symptoms but the comment was ‘terminated due to exhaustion’. Six minutes is a moderate level of activity. A lot of men of Peter’s age would do nine minutes.
Q: But that you say was terminated due to fatigue and not due to any
ischaemia activity?---A:
No, well, exhaustion. Ischaemia can be – there is no evidence of ischaemia on the scan, but you don’t have to have chest pain to have ischaemia.”[59]
[59] T 182, L4-15
68 Furthermore, under cross-examination, Dr Goods accepted that on the basis of the tests that:
• there were no limitations on the amount of walking that he could perform; • there would be no limitation in performing desk-type work; • performing such work full time; • no limitation in his ability to incorporate some walking to a desk-bound job and to perform such work full time. Walking upstairs would depend on how many stairs but he would not dissuade the plaintiff from walking up a couple of flights of stairs; • no restriction on his ability to drive around metropolitan Melbourne; • no restriction on his ability to do paperwork, report writing or computer work.[60] [60] T 183, L30 – T 184, L22
69 Dr Goods was of the opinion that it would be inappropriate for him to perform excessive interstate travel, work long hours and in particular the hours should be limited to 8.00 am to 5.00 pm – that is, about eight hours a day.
70 In re-examination, Dr Goods considered walking at a steady pace and up one or two flights of stairs not unreasonable. However, he gave the following evidence:
“Q: How about jobs where you had to go up and down stairs to check
floors and things like this?---A: Well I guess it depends how big the buildings are so forth but … Q: How often and how frequent it is?--- A: Yes, yes, I mean, I think, as I said in my report, I think he is more
suited to office type employment.Q:
And also we’ve heard some evidence in this case that, and certainly with this particular employer that there were deadlines which had to be, reports which had to be done, no doubt probably in the later hours on occasion. That sort of situation, is that a good thing or a bad thing?---
A: I think it’s a bad thing. Q:
Have I got this right, Doctor? Do you, even though the six minutes or whatever it was on the testing showed no exercise intolerance at that point but am I reading this correctly, the six minutes in your mind is not the optimum period to do that test over?---
A:
Well, for our commercial drivers they have to be able to do nine minutes on the Bruce protocol, for an airline pilot or a truck driver and you know, a lot of, a person of average fitness or, you know, six to seven minutes is average to low, but nine minutes in the Bruce protocol is what our commercial drivers had to be able to perform.
Q:
Well, just to put it in another way, assuming all that and he did six minutes or whatever, and said he was fatigued and had to stop then, is it more likely than not that the fatigue that he was complaining of at that time was cardiac related?---
A: I think it is.”[61] [61] T 186, L20 – T 187, L19
(my emphasis).
71 The plaintiff was referred to the psychologist, Mr Peter Carlisle, by his medical clinic. Mr Carlisle has provided reports dated 16 October 2010,[62] 26 June 2010[63] and 4 November 2011.[64] Mr Carlisle commenced individual counselling sessions with the plaintiff on 9 October 2009 and as at 4 March 2011, had seen the plaintiff on fourteen occasions.
[62] See Exhibit 1 at page 40 PCB
[63] See Exhibit 1 at page 41 PCB
[64] See Exhibit 1 at page 46 PCB
72 Such counselling was predominantly in relation to “chronic stress” and what the plaintiff believed to be “a systemic abuse” from the defendant in general and in particular, from one of his team leaders.
73 The initial treatment extended to 5 November 2009 and resumed on 9 March 2010, at which time the plaintiff had resumed employment. Mr Carlisle noted that the plaintiff had returned to work with significantly reduced responsibility but unfortunately, had been placed by one of those who he saw as a protagonist causing stress prior to his infarct. Furthermore, the plaintiff also perceived further abuse from the defendant when he resumed employment. In his report dated 25 June 2010, Mr Carlisle notes that the plaintiff’s mental condition appeared “greatly affected” by his heart attack and cycling thoughts of abuse and unfair treatment. In particular, Mr Carlisle states:
“Of concern is the potential that Peter’s physical condition now means that he is more vulnerable to stress and further heart attacks, and that he now may be unable to take on roles of stress due to this risk.
Psychologically Peter appears capable of work at the level he initially intended to be employed at, that of a Senior Consultant providing technical support and mentorship, rather than the high intensity role of personally auditing and reporting on numerous contracts including extended interstate travel. However, his capacity to withstand stress appears to have been affected by his experience of abuse and sustained unfair criticism and, as a result, he may struggle in other positions due to the potential for anticipation of poor treatment, and worse could be at risk of further heart attacks due to stress.”[65]
[65] See Exhibit 1 at pages 44 and 45 of PCB
74 In his later report dated 4 March 2011, Mr Carlisle states:
“Regarding Peter’s pre-injury role, I believe his capacity to perform this role remains compromised due to ongoing impairment in his concentration (potentially related to both the fatigue of his physical impairment as well as being symptomatic of his depression) and the potential for a heightened stress response due to anticipated unfair and abusive treatment. This response could be triggered by relatively innocuous events, with potentially deleterious effects, due to Peter’s hypervigilance for signs of his past treatment as well as the potential to trigger further rumination, which has potentially damaging physiological effects (fight/flight response) and further effects on his cognitive functioning.”[66]
[66] See Exhibit 1 at page 46 PCB
Medico-Legal Reports
75 The solicitors for the plaintiff arranged for him to undergo medico-legal examination by the following:
(a)
Professor Paul Nestel, cardiologist, on 5 November 2010, who prepared a report dated 15 November 2010;[67] and
(b)
Dr Michael Epstein, psychiatrist, on 25 January 2011, who prepared a report dated 27 January 2011.[68]
[67] See Exhibit 1 at page 65 PCB
[68] See Exhibit 1 at page 55 PCB
76 Professor Nestel had available all the tests undergone by the plaintiff, including the exercise thallium test carried out on 11 November 2010. On the basis of those tests, he concluded that the chest pains complained of by the plaintiff “do not represent true angina and are related to the psychological stress that has persisted from the time of his employment with Urban Maintenance Systems”.[69]
[69] See Exhibit 1 at page 66 PCB
77 Professor Nestel also states that the plaintiff could resume working in his previous area of expertise but not with Urban Maintenance nor in a similarly “stressful environment”. In particular, he also states that the “work requirements would also need to be less onerous”.[70]
[70] See Exhibit 1 at page 66 PCB
78 Dr Epstein is of the opinion that the plaintiff suffers from a Chronic Adjustment Disorder with Anxious and Depressed Mood that has been contributed to by his perceived work harassment and also arises from concern about his physical condition and his psychological state.[71] Furthermore, Dr Epstein states:
“In my view he is unfit to return to his pre-injury employment because there would be a significant increase in his level of depression and anxiety both because he has been sensitised from his previous work experience and because of his concerns that increased pressure could lead to a significant deterioration in his cardiac state.
Given his age, his ongoing physical symptoms including chest pain and high levels of fatigue, and his psychological symptoms he would not be able to return to work in a full-time capacity. He could not do the inherent requirements of his pre-injury role.”[72]
[71] See Exhibit 1 at page 63 PCB
[72] See Exhibit 1 at page 63 PCB
79 The defendant arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) Dr Nitin Dharwadkar, psychiatrist, on 14 October 2009[73] and also reported by way of letter dated 5 November 2009;[74] (b) Dr Michael Jelinek, cardiologist, on 19 October 2009[75] and 5 May 2010.[76] Dr Jelinek also supplied a letter dated 13 May 2010;[77] (c) Dr Timothy Entwisle, psychiatrist, on 28 April 2010;[78] (d) Dr Jeremy Hammond, cardiologist, on 9 November 2010,[79] who reported by way of letter dated 18 November 2010[80] and a further letter dated 7 December 2010;[81] (e) Dr Tony Kostos, rheumatologist, on 15 December 2010.[82] [73] See report dated 14 October 2009 – Exhibit B at page 11 DCB
[74] See Exhibit B at page 26 DCB
[75] See report dated 20 October 2009 – Exhibit B at page 21 DCB
[76] See report dated 5 May 2010 – Exhibit B at page 34 DCB
[77] See Exhibit B at page 38 DCB
[78] See report dated 5 May 2010 – Exhibit B at page 29 DCB
[79] See report dated 11 November 2010 – Exhibit B at page 50 DCB
[80] See Exhibit B at page 56 DCB
[81] See Exhibit B at page 58 DCB
[82] See report dated 20 December 2010 – Exhibit B at page 50 DCB
80 Dr Dharwadkar diagnosed the plaintiff to be suffering a mild Adjustment Disorder with Anxiety on 14 October 2009. At that stage he considered any incapacity was related to his cardiac condition and from a purely psychiatric perspective he had a capacity for any suitable duties allowed by such cardiac condition.
81 When first seen on 10 September 2009, Mr Jelinek considered the plaintiff fit for a “return to work” from a cardiovascular point of view and he was not experiencing angina at that time. However, he was of the opinion that the plaintiff should not return to work under the people who harassed him prior to his heart attack. When seen on 5 May 2010, Mr Jelinek noted at that time, that the plaintiff had “atypical chest pain, non ischemic on the basis of exercise test and coronary angiogram”.[83] Dr Jelinek considered the plaintiff capable of returning to work that he performed in early 2010 (that is the office based work). In particular, Dr Jelinek states:
“Mr Chelberg has attempted to return to work. However, continued conflict with his employer has allowed him to build up further chest pains which are now clearly atypical, not due to myocardial ischemia or coronary artery disease. They are however distressing him and he has not worked since 24th February 2010.”
[83] See Exhibit B at page 35 DCB
82 Dr Entwisle considered the plaintiff to be suffering no frank psychiatric condition although Dr Entwisle, relying on the material from Mr Jelinek, considered that the plaintiff experienced stress in his work prior to infarct which contributed to the eventual infarction.
83 When first seen on 9 November 2010, Dr Hammond considered that the chest pains which the plaintiff complained of were of a “non cardiac origin” and that such symptoms either relate to his back and/or neck by means of nerve root irritation. In his letter dated 18 November 2010 (at which time he had available the results of the exercise thallium test performed on 11 November 2010), Dr Hammond considered that the plaintiff currently had no evidence of exercise induced myocardial ischemia, at least of a significant degree, and no current exertional symptoms. In such circumstances, he considered the chest pains experienced by the plaintiff to be non cardiac in origin. In particular, Dr Hammond states:
“… he has cardiac disease. However ordinary physical activity does not
cause undue fatigue, palpitation, dyspnoea or anginal pain.”[84]
[84] See Exhibit B at page 57 DCB
(my emphasis).
84 In his report dated 20 December 2010, Dr Kostos expresses the opinion, after examination, that the pain complained of by the plaintiff on the right side of his chest extending to the sternum is referred pain from the thoracic spine and has nothing at all to do with his heart attack.[85]
[85] See Exhibit B at page 62 DCB
Pre-Injury Duties of the Plaintiff
85 Counsel for the plaintiff tendered a document headed ‘Peter Chelberg – Pre- Injury Duties – Prepared by the Defendant’.
Analysis of the Evidence
86 There is no issue that the plaintiff suffered a myocardial infarction (the death of heart muscle tissue) on or about 10 or 11 September 2009 arising out of or in the course of his employment with the defendant. The Claim for Compensation lodged by the plaintiff alleging stress and harassment during the course of his employment precipitating the infarct was ultimately accepted and payments of compensation made to 13 June 2010. The only ground sought to be relied on by the defendant for termination of such payments is that the plaintiff has no incapacity for work within the meaning of s.93 of the Act.
87 It is for the defendant to establish as a matter of probability that the plaintiff has no “physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work”.[86] Counsel for the defendant placed great emphasis on the words “might reasonably be expected to work”.
[86] Arnotts Snack Products Pty Ltd v Yacob (op cit) at page 177
88 In this sense, a distinction was sought to be made between the plaintiff having an “incapacity for work” with the defendant but no incapacity for work which he might reasonably be expected to perform such as work with City Facilities. Counsel for the plaintiff highlighted that the test as set out in Yacob only involved a consideration of whether a worker had the capacity to perform all aspects of his pre-injury employment.
89 In my view, this issue is decided by the statement of the High Court already referred to in paragraph 16 of these Reasons. In particular, based on a finding that Yacob was partially incapacitated for work, in that he could not perform the relevant climbing duties, the High Court stated:
“… His incapacity for work, due to injury, was clearly relevant to his pre- injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him.”
(my emphasis).
90 In this sense, I am of the view, that if the plaintiff is found to be “partially incapacitated for work” in that he cannot perform aspects of his pre-injury employment, then his ability to sell his labour on the open labour market is reduced, as potential employers, such as the defendant, would not employ him.
91 I make the following findings of fact:
(a)
The plaintiff is a sixty-three year old man who commenced employment with the defendant on 18 April 2006 in what is referred to as the essential services area;
(b)
His employment with the defendant could involve long hours of travelling to various parts of the state, large amounts of paperwork (which frequently had to be completed at various deadlines), long hours of work and interstate travel;
(c)
On or about 10 or 11 September 2009, the plaintiff suffered a myocardial infarction for which a Claim for Compensation was submitted pursuant to the provisions of the Act and ultimately accepted;
(d)
The plaintiff resumed employment with the defendant in or about October 2009 initially performing light duties three days a week from roughly 9.00 am to 4.00 pm during which time he walked long metropolitan railway stations looking for graffiti. Over the ensuing months his days of work increased, albeit performing office work and by January 2010 he was working five days a week in the office from about 8.00-8.30 am to 4.30 pm;
(e)
In February 2010, he ceased employment with the defendant and has not been gainfully employed since that date;
(f)
Prior to his employment with the defendant the plaintiff was employed by City Facilities (commencing in 2000) in the essential services area. A normal working week was from 7.30 am to 6.00 pm five days a week with some variations and inspection of apartments involved him walking up and down stairs and through hallways;
92 I found the plaintiff to be essentially a witness of truth who brought a very conscientious attitude to each of his employments over the years. I gained the impression that he was slightly antagonistic towards the defendant which he perceived to be the cause of his harassment at work and required him to work in an atmosphere of long hours and deadlines, ultimately leading to his infarction.
93 I also found the general practitioner, Dr M Alexopoulos, and the treating cardiac physician, Dr C Goods, to be impressive witnesses. Both doctors were prepared to make reasonable concessions and were caring in their attitude to the plaintiff.
94 There was a conflict between the evidence of the plaintiff and in particular, Dr Alexopoulos, in relation to how the plaintiff was coping on his return to work from October 2009 to his cessation in February 2010. Whereas the plaintiff asserted that he suffered chest pains and had some difficulties performing even aspects of the office work, Dr Alexopoulos (with other doctors at the practice) obtained histories from the plaintiff that he was coping well with the initial station work and later the office work and experienced no chest pains during this period of time.
95 According to Dr Alexopoulos, the chest pains emerged in February 2010 probably as a result (so he thought at that time) of the stress associated with a forthcoming conciliation working near one of the men who the plaintiff considered to be one of those who harassed him prior to his infarct, and the plaintiff being informed by the defendant to look for other work.
96 On balance, I tend to the view that the plaintiff did cope reasonably well with his return to work performing the office bound duties and that the records of Dr Alexopoulos during this time paint a reasonably accurate picture.
97 Notwithstanding the foregoing, I do not consider that the resolution of such conflict of evidence in favour of Dr Alexopoulos in any way realistically affects the credibility of the plaintiff. For reasons discussed below, it is probable that the plaintiff has had some type of chest pain over a period of time and also was experiencing psychological problems during his return to work. I never gained the impression that the plaintiff set out to mislead the Court to his advantage.
98 One of the concerns from a medical point of view, and in turn, which had potential relevance to his capacity for employment is whether the chest pain suffered by the plaintiff is cardiac in origin. Professor Nestel, Dr Jelinek, Dr Hammond, and the general practitioner, Dr Alexopoulos, all considered on balance that such pain was atypical and not of a cardiac origin. There is also support for such view from the examination by Dr Kostos of the plaintiff.
99 On balance, I consider that the evidence suggests that the pain is of a non- cardiac nature. I have some slight reservations about such finding as I also perceived Dr Goods to have some slight reservations as to whether the plaintiff did have ischemia. In this respect, Dr Goods noted that the original stress echocardiogram showed some evidence of ischemia, that the exercise thallium test undertaken on 11 November 2010 revealed no evidence of ischemia. However, Dr Goods pointed out that the plaintiff was only able to undertake slightly over six minutes of the exercise thallium test whereas many men of the plaintiff’s age would do about nine minutes. Certainly Dr Goods considered that the fatigue exhibited on the test was cardiac-related.
100 Dr Alexopoulos expressed the opinion that based on his examinations and notes taken over the period from October 2009 to February 2010, the plaintiff had a capacity to perform desk work with the type of inspections that he had been undergoing at railway stations to check for graffiti. However, he was of the opinion that the plaintiff’s capacity for employment was limited, in that he should be restricted to normal office hours and avoid performing long hours of work, he should avoid travelling interstate and performing long hours of driving. In general he should avoid stressful situations, avoid climbing up stairs, up and down buildings for three hours a day or more and should not be under stress about writing reports.
101 Dr Goods accepted that there was no limitation on the amount of walking that the plaintiff could perform, no limitation in performing desk type work, no limitation performing work full-time, no limitation in his ability to incorporate some walking into a desk-bound job and perform such full-time work, no restriction on his ability to drive around metropolitan Melbourne and no restriction on his ability to do paperwork, report writing or computer work. Walking up stairs would depend on how many stairs but he would not dissuade him from walking up a couple of flights of stairs. Notwithstanding the foregoing, Dr Goods also stated that the plaintiff is “more suited” to office-type employment and that it is a “bad thing” for him to be exposed to deadlines for report writing.
102 After a consideration of all of the evidence, I am not persuaded that the plaintiff has the capacity to perform all the potential aspects of work in the essential services area. As demonstrated during his employment with the defendant, such work can involve very long hours, interstate travel, and constant deadlines being required to be met for reports. In this sense, the plaintiff is at least partially incapacitated for work in the same way that Mr Yacob was in the High Court case. In this sense, he has a physical incapacity for doing work in the essential services area.
103 If it be necessary to consider the potential for him to perform work at City Facilities, I am of the opinion that such work demonstrated that he would be required to write reports under pressure, sometimes work longer hours than normal, and sometimes required to perform stair climbing work over large buildings, all of which should be avoided. In my opinion, I consider it relevant that because such employment is in the essential services area, there is the potential for being required to perform other duties which would also be beyond his capacity.
104 In particular, the plaintiff referred frequently to the “fatigue” which he experiences since his infarct. Dr Goods accepted that such fatigue was a consequence of his infarct. Such fatigue would inhibit various aspects of his employment in the essential services area.
105 Even accepting that the plaintiff was capable and indeed did demonstrate his capacity for employment from October 2009 to February 2010, it does not demonstrate that he has a capacity for all aspects of employment in the essential services area.
106 Counsel for the plaintiff urged me to make a finding that the plaintiff has “no current work capacity” within the meaning of the Act. It was common ground between the parties that any reinstatement of payments as from 13 June 2010 would still be in the so-called “second entitlement period” referred to in s.93B of the Act. Again it was common ground that the plaintiff would be paid the same rate of compensation if he has “no current work capacity” or has a “current work capacity” given that he has no current earnings.
107 I decline making any express findings as to “no current work capacity” or “current work capacity” as seemingly any such finding would have no practical effect on the payment of compensation until perhaps the expiration of the second entitlement period.
Conclusion
108 Accordingly, I overturn the decision made by the agent of the Authority and order the reinstatement of payments from 14 June 2010 at a rate to be determined. I seek the parties to formulate appropriate orders in relation to the weekly payments and ancillary matters.
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Annexure A
1 The plaintiff tendered the following material:
(a) Exhibit 1: •
Worker’s Injury Claim Form dated 17 September 2009, Employer Injury Claim Report dated 23 September 2009 and the Termination Notice of Gallagher Bassett dated 27 May 2010;
•
Medical reports from Dr Alexopoulos dated 15 June 2010, 24 June 2010, 10 August 2010, 27 August 2010, 6 September 2010, 5 November 2010, 17 December 2010 and 4 March 2011;
•
Reports of the psychologist, Mr Peter Carlisle, dated 16 October 2010, 26 June 2010 and 4 November 2011;
•
Reports of the cardiologist, Dr Goods, dated 21 September 2009, 5 October 2009, 2 March 2010, 29 March 2010, 28 June 2010, 3 November 2010, 14 May 2010 and 7 March 2011;
•
Report of the physiotherapist, Mr Jonas Torstensson, dated 15 June 2010;
•
Medico-legal report from the psychiatrist, Dr Michael Epstein, dated 27 January 2011;
•
Medico-legal report from the cardiologist, Professor Paul Nestel, dated 5 November 2010;
• A copy of the Exercise Thallium Test dated 11 July 2010. These documents are found at pages 9-17 and 26-69 of the Plaintiff’s Court
Book.
(b) Exhibit 2: • UMS pre-injury duties of the plaintiff, undated. Such document is found at pages 63-64 of the Defendant’s Court Book.
2 The defendant tendered the following material:
(a) Exhibit A: • Notes of the Vermont Clinic. (b) Exhibit B: • Report of psychiatrist, Dr Dharwadkar, dated 14 October 2009; •
Medical reports of the cardiac specialist, Dr Jelinek, dated 20 October 2009 and 5 November 2009;
• A further report from Dr Dharwadkar dated 28 April 2010; •
Further medical reports from Dr Jelinek dated 5 May 2010, 6 May 2010 and 13 May 2010;
• Medical reports of Dr Goods, treating physician, dated 14 May 2010; •
Medical report from Dr Marino Alexopoulos, treating general practitioner, dated 15 June 2010;
• Report from treating psychologist, Mr Peter Carlisle, dated 25 June 2010; •
Further reports from the treating general practitioner, Dr Alexopoulos, dated 10 August 2010 and 6 September 2010;
•
Medical reports from the cardiologist, Dr J Hammond, dated 11 November 2010, 18 November 2010 and 7 December 2010; and
•
The Report from the rheumatologist, Dr Tony Kostos, dated 20 December 2010.
All such reports are at pages 11-62 of the Defendant’s Court Book.
(c) Exhibit C: •
Medical certificates given by Dr Marino Alexopoulos dated 17 May 2010, 24 June 2010 and 23 August 2010.
(d) Exhibit D: •
Two letters from Shine Lawyers respectively to Mr Carlisle dated 1 March 2011 and Dr Alexopoulos dated 1 March 2011.
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