Cheryl Rose Hodgson Plaintiff v Victorian WorkCover Authority Defendant

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04937

CHERYL ROSE HODGSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2023 and 2 October 2023
DATE OF JUDGMENT:	1 December 2023
CASE MAY BE CITED AS:	Hodgson v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 2183

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury – mental or behavioural disturbance or disorder – pain and suffering – loss of earning capacity
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s 325
Cases Cited:Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Stevens v DP World Melbourne Ltd [2022] VSCA 285; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Humphries and Anor v Poljak [1992] VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889; Bendzius v Victorian WorkCover Authority [2019] VCC 915; Madaroski v Colonial Meat Export Pty Ltd [2021] VCC 113
Judgment:                  Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Makowski with Mr R Paoletti	Arnold Thomas & Becker
For the Defendant	Mr L Howe	Wisewould Mahoney

HER HONOUR:

Introduction
1Mrs Cheryl Hodgson, the plaintiff, is a seventy-year-old former personal care attendant (“PCA”).
2The plaintiff seeks the leave of the Court to bring a common law proceeding for both pain and suffering and loss of earning capacity damages. She claims that she has suffered a “severe” mental or behavioural disturbance or disorder.
3There was no issue that the plaintiff suffered a compensable psychological injury arising out of her employment with Sunbury Community Health Centre Limited (“the employer”). There was also no issue that the plaintiff’s condition was an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
4The defendant contested the application on several bases. It was submitted that:
(a)   the plaintiff was an unreliable witness;
(b)   the plaintiff’s compensable injury had been “swamped” by a psychological disturbance caused by non-work-related events;
(c)   the plaintiff’s condition was not permanent;
(d)   the plaintiff would not have worked beyond age 70 in any event;
(e)   alternatively, the plaintiff had a capacity for suitable employment and was capable of earning more than 60 per cent of her “without injury” earnings;
(f)     the psychological condition was not “severe”.
5The hearing commenced on 19 July 2023, but was adjourned. It resumed and concluded on 2 October 2023.
6During cross-examination of the plaintiff on the first day of hearing, the plaintiff became distressed and left the Court.
7The hearing was adjourned to enable the plaintiff to consult a general practitioner (“GP”), and her psychologist.
8The resumption of the hearing was delayed as the plaintiff advised the Court that she would be seeking a referral to a psychiatrist for treatment. The plaintiff had not previously been referred to a psychiatrist for treatment of her psychological condition.
9At the resumed hearing, the plaintiff advised the Court that she had experienced difficulties finding a psychiatrist willing to see WorkCover patients, and she was not due to see one until November 2023.
10No application was made by either party to further adjourn the hearing which proceeded to conclusion on 2 October 2023.
11For the reasons that follow, I find that the plaintiff has not satisfied her onus of establishing that she suffers permanent impairment consequences of her mental or behavioural disturbance or disorder arising out of her employment with the employer that are “severe”.
12Further, the plaintiff has not satisfied her onus to establish an entitlement to an order allowing her to commence a proceeding claiming damages for loss of earning capacity.

Background
13The following matters of background are not, I believe, controversial. As far as any part is contested, these represent my findings save where indicated.
14The plaintiff was born and brought up in Victoria. She left school after completing Year 9.
15Thereafter, she was employed as a factory worker for several employers. She also worked in a milk bar.
16Following her marriage, at aged twenty-one, the plaintiff worked as a ward assistant at the Royal Children’s Hospital for some years.
17The plaintiff largely ceased work when she had the first of her three children.
18When her youngest child turned eighteen years, the plaintiff resumed employment.
19Initially, the plaintiff worked at a childcare centre, but after approximately two years, the plaintiff began working as a PCA in an aged care facility. She obtained a Certificate III in Aged Care and Disability.
20In September 2015, the plaintiff began working for the employer as a PCA on a casual basis. She averaged about 18 to 20 hours per week.
21The plaintiff claims that she was bullied and harassed in the course of her employment with the employer. Ten pages of her first affidavit set out a detailed account of incidents which allegedly occurred between about October 2017 and September 2018. The plaintiff alleged she was bullied and intimidated by co-workers, and she said she was falsely accused of elder abuse.
22The plaintiff attended a disciplinary meeting on or about 4 December 2018. She was given a first written warning for misconduct in the workplace.
23The plaintiff was subsequently advised by the employer that further serious allegations had been made against her and she would not be able to work until they were investigated.
24The plaintiff was not offered any work hours by the employer after November 2018. She has not undertaken any paid employment since that time.
25On 28 December 2018, the plaintiff sought medical treatment for the first time for psychological symptoms arising out of the events at work. She attended a GP at the Goonawarra Medical Centre. Thereafter, the plaintiff attended Ms Linet Gesora, a mental health social worker, at that clinic on a regular basis for several months.
26In April 2019, the plaintiff was prescribed Zoloft, 50 milligrams, for her psychological condition. The plaintiff’s GP reported that the dosage of Zoloft was tapered up to 150 milligrams daily but stopped when the plaintiff began taking other medications for an unrelated chronic pain condition.[1]
[1]Plaintiff’s Further Amended Court Book (“PCB”) 37
27In contrast to the GP’s report, the plaintiff said that she only took Zoloft for a week or two.[2] She said that she did not like to take medications because of difficulties her daughter had encountered with prescription medications.
[2]Transcript (“T”) 73
28Instead, the plaintiff has taken Lion’s Mane for her psychological condition. This was said to be a natural remedy, which the plaintiff found to be of assistance.
29In July 2019, the plaintiff was referred to Kirsty Terry, psychologist, for treatment. She first attended Ms Terry on 24 July 2019, and has continued to consult her every few weeks since.
30The plaintiff no longer attends a GP on a regular basis.
31As a teenager, the plaintiff experienced episodes of anxiety and suffered panic attacks. She was prescribed anti-anxiety medications for a period.
32In about 2012 and 2013, the plaintiff suffered psychological difficulties when a longstanding client, for whom she had provided care for many years, passed away.
33The plaintiff has also had a number of physical health conditions.
34From 2014, she experienced lower back pain from time to time following a fall at home.
35From approximately 2019/2020, the plaintiff suffered symptoms in her hands, diagnosed as bilateral carpal tunnel syndrome. In April 2021, she underwent surgery for that condition on the right side which led to a resolution of symptoms in her right upper limb. The plaintiff’s evidence was that her left-sided carpal tunnel symptoms improved over time without the need for surgery.
36In about 2020, the plaintiff began experiencing widespread body pains, which were subsequently diagnosed to be polymyalgia. The plaintiff was treated by Dr Daniel Lewis, rheumatologist, with a weaning dose of prednisolone and methotrexate. The plaintiff last saw Dr Daniel Lewis in 2022. The plaintiff said that her polymyalgia symptoms were not troubling her significantly at the time of this hearing.
37The plaintiff continues to live with her husband of almost fifty years. She has three adult children, thirteen grandchildren and two great grandchildren.
38On 29 July 2023, whilst the hearing of this matter was adjourned, the plaintiff’s husband had a fall in which he severely fractured his hip.
39Since his release from hospital after undergoing surgery to his hip, the plaintiff has become her husband’s full-time carer. This involves assisting her husband with most aspects of personal care.[3]
[3]T112, T119

The claimed impairment consequences.
40In her first affidavit, sworn on 9 June 2022, the plaintiff said that on days when she has an “anxiety attack”, her physical pain increases, requiring her to take up to four to six Panadol tablets.
41She described the other impairment consequences of her psychological condition as follows:[4]
[4] PCB 19-22
“34.Since I suffered the psychological injuries at work, I continue to suffer from regular feelings of sadness. As discussed in more detail below, I do not feel that I can return to work as a PCA. I was very passionate about my work, and I loved caring for my residents. My job meant so much to me that I often did extra work to help my residents. For example, if a resident had clothes that needed adjusting, I would often do it for them. I would seek authorisation from the office and then I would take the clothes home and adjust them. I never sought reimbursement for the cost of doing that. I just did it because it gave me a lot of job (sic). Apart from having my children and seeing them have their own children, there was nothing more satisfying for me than my work.
35.I cannot describe how it makes me feel not being able to work as a PCA. All of the joy and happiness that my work gave me has been taken away. I tend to spend most of my time at home now with very little to do, and I miss my work every day.
36.I often feel particularly sad on days when I sit at home and think about how much I miss my work. There have been occasions when I have bumped into former colleagues and they have told me that some of my residents passed away after I left, and it upsets me a lot because I was stood down so suddenly that I never got the chance to say goodbye to them.
37.My sadness tends to vary. I feel as though my family is the only thing that keeps me going. On days when I do something like talking with my grandson on FaceTime, that can brighten me up. But then those feelings fade and I go back to thinking negative thoughts. I still have so many horrid memories of how I was treated at work, and I think about them a lot.
38.I tend to suffer from a lot of anxiety and stress since I suffered psychological injuries at work. For example, I tend to worry a lot about my family and their safety. My children and grandchildren ring me regularly. But if a day goes by and I have not heard from one of my children, I start to worry about whether everything is okay. I start by thinking that they did not call because they were caught up with something, and then I start worrying about them. My mood can then drop very quickly.
39.Another example is that I often hear Jeffrey talking to one of my children on the phone. I then feel the need to ask him if they’re okay, because I start worrying that something has happened to them.
40.A further example is that one of my sons lives in Ocean Grove and he comes to Melbourne about once per fortnight. When he is coming to Melbourne, he calls to let me know. I tend to ask him how far he is from Melbourne so that I know where he is. When he leaves to go back to Ocean Grove, I tend to ask how long it will be before he returns to his home. I ask these questions when he is coming and going because I feel the need to do the maths and work out when he should arrive at [the] destination. If he does not call me when he arrives home, I tend to call him based on my calculation of when he should have arrived. I have a fear of possibilities now and I feel as though everything is ‘what if?’. I never used to be like this before. The anxiety I suffer from now has done this to me.
41.My memory and concentration have reduced a lot since I suffered psychological injuries at work. I had always previously considered myself to be a really good thinker, and I now tend to find it very hard to focus and concentrate on things. For example, sometimes I will want to say something to Jeff and he will ask me to wait until he has done something little like brushing his teeth or washing his hands but, once he returns, I have already forgotten what I was going to say to him. Another example is that I now tend to forget the names of people I have known for years if I have not seen them in a while, this forgetfulness makes me feel very stressed. Then, I will remember their names an hour or so later.
42.I tend to get distracted more easily now, which affects my short-term memory. I now have a routine when I leave the house, in which I check that I have my purse, phone, glasses, and keys, so that I do not forget them.
43.I used to love cooking for my family before I suffered psychological injuries at work. I still cook, but my loss of memory has affected my ability to do it. There are meals I have been cooking for years and I now often forget the recipes, so I have to sit down and go over and over it to remember how to make it.
44.Before I suffered psychological injuries at work, I used to be very house proud and I kept my home neat and tidy. Now, I often lack the motivation to do cleaning tasks. Some days, I cannot even motivate myself to have a shower and I will just stay in my pyjamas. On days when I am less sad and anxious, I can make myself do some household tasks. But I often cannot motivate myself on days when I am sadder and more anxious.
45.I tend to burst into tears quite easily now. Often, hearing something sad will make me cry now, when it would not have caused me to cry before I suffered psychological injuries at work. For example, if I hear that someone I did not (sic) know passed away, that can make me cry. Some time ago, my son’s turtle died and hearing that news made me start crying. Things that might have just made me feel sad before can now bring me to tears.
46.I have been taking green tea tablets to help me sleep at night. But even with those pills, I have a bad night about once every couple of nights when I wake up repeatedly. They can be triggered by having a day when something happened that upset me and played on my mind.
47.I tend to be startled quite easily now, which is something that did not happen to me before. Aside from my heightened anxiety, I also think it is because I now have a tendency to get caught up in my thoughts and be miles away in my own mind. Jeff tends to be very quiet when he moves around the house. Sometimes he will walk behind me and, if I do not notice until he is quite close, it can cause me to get very startled. Even the phone ringing can sometimes startle me now.
48.Physical intimacy has become difficult because my anxiety interferes with my feelings of intimacy.”

42In her second affidavit, sworn on 13 June 2023, the plaintiff deposed that she continued to experience the difficulties set out in her first affidavit. She said that her feelings of loss of her role as a PCA were worse, and some days she would spend a lot of time “thinking about what happened to me at work”.[5] The plaintiff believed her memory and concentration issues were “even worse”.
[5] PCB 25
43The plaintiff deposed to attempting to deal with her motivation issues by trying to push herself and set goals to get the housework done.
44The plaintiff said that she had stopped taking green tea tablets for sleep. Instead, praying before going to bed. This had improved her sleep issues.
45The plaintiff deposed to having lower energy, reduced confidence and self-esteem, and feelings of irritability at times.
46The plaintiff said that her bruxism had “worsened”.
47At paragraph 28 of her second affidavit, the plaintiff deposed as follows:[6]
“28.More recently, I have applied to do some part-time volunteer work at my local Church. The church runs a winter shelter and I applied to do some cooking at the Church for the homeless. I have yet to hear back about whether the Church will take me on as a volunteer. If they did, I understand I would just be required to do some cooking by myself at the Church, and I could do it alone. I understand I would probably only be required a couple of days per week, for about a few hours at a time. I would use this as a way of getting out of the house.”
[6] PCB 27

48The plaintiff also relied upon an affidavit from her husband, Jeffrey Hodgson, sworn on 28 June 2023,[7] and her daughter, Jodie Schwarzenberg, sworn on 28 June 2023.[8]
[7] PCB 32
[8] PCB 29
49Their affidavits were broadly supportive of the plaintiff’s claimed consequences.
50They were framed in general terms.
51I note that neither of the lay affidavits refer to the plaintiff’s psychological condition deteriorating in the period between September 2022 and early 2023. Neither do the affidavits refer to the plaintiff’s physical health conditions.
52Whilst no application was made to cross-examine those witnesses, those affidavits are to be considered in light of my findings regarding the plaintiff’s reliability.[9]
[9]Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, paragraph [88]

The Plaintiff as a witness
53Mr Makowski, who appeared with Mr Paoletti for the plaintiff, submitted that the plaintiff was a credible and reliable witness. Insofar as there was any unreliability in her evidence, such was explicable by her diagnosed psychiatric condition.
54Mr Makowski referred the Court to the following paragraph in Stevens v DP World Melbourne Ltd:[10]
“44.Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment. In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.”

[10][2022] VSCA 285

55Mr Howe, who appeared for the defendant, submitted that the plaintiff was an unreliable witness. It was submitted that she sought to prevaricate and advance her case from the witness box.
56It was further submitted that none of the medico-legal psychiatrists had been given a full history, and this undermined the opinions given. Reliance was placed upon the often-cited passage in Petrovic v Victorian WorkCover Authority:[11]
“74.As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
[11][2018] VSCA 243

57The defendant submitted that the notes of the plaintiff’s treating psychologist revealed that the plaintiff had experienced many significant life events in the period since she ceased work which impacted upon her psychological condition. Those matters were not disclosed to any of the medico-legal psychiatrists.
58The defendant relied upon various matters which were disclosed to the plaintiff’s psychologist, but not to the medico-legal psychiatrists.
59Some examples are as follows:
(a)   on 15 July 2021, the plaintiff told Ms Terry that she was experiencing crippling pain which made self-care very difficult. She had become fearful of a malignancy in her head. Bruxism was causing sleep problems. Jeff was not communicative;
(b)   on 25 August 2021, 17 September 2021, 11 January 2022, 14 April 2022 and 26 May 2022, the plaintiff told Ms Terry about difficulties she was experiencing because of the COVID-19 pandemic;
(c)   on 26 October 2021, the plaintiff told Ms Terry about the circumstances of a transport accident where she was hit by another motorist, describing it as a “very stressful experience”;
(d)   on 23 June 2022, Ms Terry noted: “Things have a bit ‘crazy’ (sic). Anxiety triggers are frequent. Grandson Jack has history of drug use. Has had multiple relapses. Jodie’s eldest son. Charged for drug (sic) driving and road violence.”[12] The plaintiff raised issues about Jack again on 12 August 2022 and 2 September 2022;
(e)   on 25 November 2022, the plaintiff told Ms Terry she had been having a difficult time. She described being in the vicinity of the stabbing murder of a neighbour;
(f)    On 9 December 2022, the plaintiff described ongoing familial difficulties with her sister Lorraine.
[12]        Defendant’s Amended Court Book (“DCB”) 61
60When asked about the impact upon her of the above events during cross-examination, the plaintiff was generally dismissive of the suggestion that they had any significant or lasting effect upon her.[13] She said that she raised them with her psychologist because the purpose of the appointments is to talk and share things.[14]
[13]E.g. T60-61, T85, T90, T91, T93-95
[14]T94
61I bear in mind that medical records are not written for the purpose of cross-examination, but for treatment.
62A fair reading of Ms Terry’s notes supports a finding that the plaintiff discussed the various issues with her because they upset her.
63The plaintiff’s explanation for these matters not being referred to by the medico-legal psychiatrists was that she was not asked about them.
64In that context, I note that Dr Rathnayake, consultant psychiatrist, said as follows in her second report dated 8 February 2023:[15]
“Ms Hodgson did not advise me of any additional stress factors or non-work-related stress factors that could explain the deterioration in her symptoms after September 2022 … .”
[15]        DCB 41
65I find that it is likely that Dr Rathnayake asked the plaintiff about additional stressors given that statement. However, I am not persuaded that the plaintiff deliberately withheld the above matters from Dr Rathnayake.
66The fact remains that I find that neither Dr Rathnayake nor Dr Justin Lewis were told of the other life events or their effect upon the plaintiff and did not have the opportunity to consider them.
67The plaintiff found the process of giving evidence difficult.
68Half an hour into cross-examination, on the first day of hearing, the plaintiff became upset and left the courtroom. This came about after the following exchange regarding the plaintiff not having been vaccinated against COVID-19:[16]
[16]T50-51
Q:“And you refused, even at the height of the pandemic you refused to be vaccinated?---
A:Didn’t refuse. I just didn’t have it.
Q:And what was the reason for not having it?---
A:Because I didn’t like vaccines. The same with - and my anxiety and everything else, I didn’t have it. And I was - I couldn’t leave the house anyway.
Q:That would have affected your ability to work as a personal care attendant, wouldn’t it, Ms Hodgson?---
A:No, well, they wouldn’t have allowed us to work anyway.
Q:Well, what do you mean by that?---
A:Well, if I was able to work, they wouldn’t have allowed people, people in care facilities couldn’t work anyway.
Q:What, so even though the clients that required care, the personal care attendants weren’t allowed to go in - - -?---
A:Look – look, please. Where are you going with this? I wasn’t working during COVID. What is wrong with you?---
Q:I’m just asking the question.”
HER HONOUR:
Q:“Mr Howe’s just asking you to - - -?---
A:But - - -
Q:Just wait?---
A:I wasn’t working because of my anxiety.
Q:Mrs Hodgson, Mr Howe’s just asking you to clarify - - -?---
A:Let me go home.
Q:To clarify an answer that you just gave to him, that people weren’t allowed to work anyway?---
A:My head is thumping. My anxiety is – I can’t think straight, and I just want to go home.”

69I understood that evidence from the plaintiff was to the effect that being unvaccinated for COVID-19 would not have affected her capacity to work in 2020 and 2021. Such a proposition cannot be accepted. Vaccinated staff in aged care facilities continued working during the COVID-19 pandemic.
70When the hearing resumed, the plaintiff was again asked about the impact of not being vaccinated against COVID-19 upon her ability to work in aged care. On this occasion, the plaintiff said that if it meant the difference between working or not working, she would have had the vaccination.[17]
[17]T59
71The different responses from the plaintiff on this issue are difficult to reconcile.
72The plaintiff’s response to this question at the resumed hearing was a convenient answer which I do not accept in circumstances where the tendered material contains references to the strong stance the plaintiff took against being vaccinated.[18]
[18]DCB 57, DCB 59, DCB 60, DCB 61
73I make an appropriate allowance for the plaintiff’s diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood when assessing her reliability.
74The plaintiff was anxious about the unfamiliar, and inherently stressful process of giving evidence. Her difficulty with cross-examination on the first day of hearing appeared to me to be caused by a combination of that understandable anxiety as well as her appreciation she had given an unjustifiable answer to the cross-examiner.
75Overall, I found the plaintiff to be an unimpressive witness. She overemphasised evidence that assisted her case and downplayed evidence which was contrary to her case.
76For example the plaintiff sought to minimise the impact that the death of a client had upon her in 2012/2013,[19] despite her GP recording the plaintiff to have said that the client was her soulmate and his demise had left a hole in her life.[20]
[19]T37-38, T43-45, DCB 44
[20]        DCB 44
77She also sought to downplay the effect the COVID-19 pandemic had upon her.[21]
[21]T49-50, T59-60, T88
78She downplayed the difficulties with her grandson, Jack, and their effect upon her.[22]
[22]T90-91
79Whilst the plaintiff conceded that the transport accident of October 2021 was traumatic, she said in evidence that it was “nothing like what I was going through already”.[23]
[23]        T85
80When asked about aspects of Dr Rathnayake’s first report dated 21 September 2022 during cross-examination, the plaintiff offered that she had been “sobbing most of the time talking to her”.[24]
[24]T102
81When it was put to the plaintiff that Dr Rathnayake recorded the plaintiff as being close to tears once during the examination (not sobbing at any point), the plaintiff said “I was close to tears all the time – sorry, but I did – at some points, I sobbed. Yeah”.[25]
[25]T102
82When the contrast in her evidence was put to her, the plaintiff said that it had been a long interview.
83It was also a concern that the plaintiff did not disclose in her affidavits that she had been caring for her great grandson one to two days a week for approximately two years between 2019 and 2021.[26] I note that in July 2019, the plaintiff reported to Dr van der Linden, psychiatrist, that she babysat her great grandson; however, it does not appear that Dr van der Linden was told about the plaintiff’s regular commitment to caring for him.
[26]        T105-107
84I find that the plaintiff’s own perception and understanding of her psychological symptoms and their causes since 2018 do not provide a reliable basis to make findings about the plaintiff’s impairment consequences and their causes.
85For the above reasons, I find the plaintiff’s evidence unreliable and approach it with caution.

The medical evidence
Treaters
Dr Leila Keshavarz, general practitioner
86The plaintiff tendered one report from Dr Keshavarz of the Goonawarra Medical Centre dated 30 September 2021.
87In addition, the defendant tendered extracts of the clinical records of the Goonawarra Medical Centre between 2013 and 2021.
88Dr Keshavarz outlined the course of the plaintiff’s treatment for her psychological condition since 28 December 2018.
89Dr Keshavarz’s diagnosis was that the plaintiff suffered from an Adjustment Disorder with Depressed and Anxious Mood.
90She stated that the plaintiff’s ongoing anxiety and depressive symptoms affected the plaintiff’s daily function “remarkably”. Further: “The ongoing anxiety and depressive symptoms have been affecting her physically having chronic generalised pain over muscle and joints during the last year (Rheumatology disorder).”[27]
[27]PCB 36-37
91Dr Keshavarz opined that the plaintiff’s prognosis was uncertain, as she had no “remarkable response” to counselling, medications or absence from work.
92The plaintiff stopped attending the Goonawarra Medical Centre in about 2021. In her viva voce evidence, she said that she did not have a regular GP.
93Given this report was written two years ago, it is of limited assistance regarding the plaintiff’s current status.
Dr Geetika Pemasiri, general practitioner
94The plaintiff tendered a letter from Dr Pemasiri dated 20 July 2023.
95Dr Pemasiri was a GP the plaintiff consulted for the first time following the hearing on 19 July 2023.
96Dr Pemasiri diagnosed acute stress due to the court hearing, noting the plaintiff had poor judgment, attention, and concentration. She opined that the plaintiff was “unable to make any decisions due to her mental instability at present”.
Kirsty Terry, psychologist
97The plaintiff tendered three reports from Ms Terry dated 24 October 2021, 24 May 2023 and 5 September 2023.
98In addition, the defendant tendered extracts of Ms Terry’s clinical records between July 2021 and March 2023.
99In her first report, Ms Terry noted that when first seen in July 2019, the plaintiff was experiencing “very low mood, severe anxiety, sleep disturbance, anhedonia, social withdrawal, tearfulness and some hopelessness …”.[28]
[28]        PCB 42
100She opined that the plaintiff was suffering from a Chronic Adjustment Disorder with mixed depression and anxiety.
101Ms Terry said that treatment consisted of cognitive behavioural therapy, acceptance and commitment therapy and lifestyle management strategies. Ms Terry noted that the plaintiff developed bruxism, temporomandibular joint pain, inflammatory problems, and fibromyalgia in 2020. She stated:[29]
“Unfortunately, Ms Hodgson currently has no capacity for any work, as her physical and psychological injuries are disabling. Given the painful and degenerative nature of her condition, it is unlikely that she will be able to return to work in the foreseeable future, and certainly not the type of physical work she performed in her previous role.”
[29]PCB 41
102Ms Terry opined that the plaintiff’s condition appeared stable, but she required ongoing treatment to maintain her current level of function.
103Ms Terry’s second report was almost identical to the first but contained an additional note that the plaintiff experienced “frequent spikes in her anxiety with minimal provocation, which in turn can trigger flare-ups of her autoimmune symptoms”.[30]
[30]        PCB 43
104Ms Terry’s most recent report was written between the first and second day of the hearing. She opined as follows regarding the plaintiff’s progress since May 2023:[31]
“… Despite engaging in regular psychological treatment since that time, Ms Hodgson’s diagnosis remains unchanged. She continues to experience significant anxiety on most days, which impacts her daily functioning, social connections, and quality of life.
Since the most recent court hearing, Ms Hodgson has reported an exacerbation in her symptoms, including a reliving of the workplace incident and subsequent bullying, tearfulness, poor concentration, sleep disturbance and very low mood. She has stated that she now plans to arrange an appointment with a psychiatrist for assessment and possible trial of medication.”
[31]        PCB 93

105Ms Terry’s opinion regarding the plaintiff’s work capacity was expressed based on her physical and psychological condition taken together. I cannot approach the matter on that basis.
106The defendant tendered Ms Terry’s clinical notes between July 2021 and March 2023. The plaintiff attended on 27 occasions in that period.
Mr Lean Peng Cheah, general surgeon and endoscopist
107The defendant tendered one report from Mr Cheah dated 20 April 2021.
108Mr Cheah treated the plaintiff’s carpal tunnel condition.
109He noted the following account of symptoms from the plaintiff on 20 April 2021:[32]
“Unbearable symptoms on hands - sore in both hands. Numbness and burning in her fingers. Not able to sleep in bed - has to sleep sitting up in recliner chair. Keeps waking up with intense burning. Ends of fingers - permanently numb.
Shooting pain going up finger from palm to her finger. Mainly ring fingers and also middle finger, occ index.
Wrist sore to turn. Also her palm skin is sore when she rubs her hands. Too sore to hold a spoon and to hols her phone (numbness)
Also trouble driving car - numb hand!! Limits her driving.
This affects her work as a career. No strength in hands. Pain even washing in shower.”
[32] DCB 67

110Mr Cheah noted that an ultrasound revealed moderate thickening of the median nerves on the left, and mild thickening on the right.
111He recommended carpal tunnel release surgery, with the left side to be done first.
Medico-legal evidence
Dr Nitin Dharwadkar, psychiatrist
112The defendant tendered a report from Dr Dharwadkar dated 16 January 2019. Dr Dharwadkar examined the plaintiff on 16 January 2019.
113This examination took place very shortly after the plaintiff ceased work.
114The plaintiff reported to Dr Dharwadkar that she had periodically lowered energy/motivation, and an anxious, sad mood. The plaintiff said she was preoccupied with work issues. She reported fluctuating difficulties with concentration, headaches, groin muscle pain and jaw pain.
115The plaintiff reportedly told Dr Dharwadkar that she had always been hyperactive since childhood and feels better with working and focusing on tasks. As she was at home, she was focused on cleaning.[33] The plaintiff reported taking Valium, 5 milligrams, daily.
[33] DCB 10
116The plaintiff reportedly told Dr Dharwadkar that driving and doing household chores and cooking were helpful for her stress. She said her socialising was not impacted, and she had never really been a social person. Her family visited frequently.
117On mental state examination, the plaintiff had an anxious affect with a reactive component.
118Dr Dharwadkar diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was of the view that the fluctuating symptoms were mild to moderate in nature.
119Dr Dharwadkar recommended the plaintiff have about twelve sessions with a clinical psychologist, and the initiation of an antidepressant such as Escitalopram.
120He was of the view that the plaintiff had no current work capacity, but that her capacity to work be reviewed eight weeks after the plaintiff received adequate treatment.
121As this report was written more than four years ago, it is of limited assistance in determining the plaintiff’s current impairment.
Dr Martin van der Linden, psychiatrist
122The plaintiff tendered a report from Dr van der Linden dated 10 July 2019.
123Dr van der Linden examined the plaintiff at the request of the defendant on 10 July 2019.
124The plaintiff reported to Dr van der Linden that she was prescribed and took sertraline (50 milligrams per day) and felt that the medication had led to an improvement in her depressive symptoms although she felt her anxiety symptoms had deteriorated. She told Dr van der Linden that things had improved overall and “for 3 or 4 days per week she felt ok”.[34]
[34] PCB 69
125Dr van der Linden noted that the plaintiff reported having few friends and was mainly “family oriented”. Her husband was “not a go out person”.
126Her leisure activities included cooking for her family, babysitting her great grandson, music, watching television and sewing. She reported enjoying walking previously but no longer did so as she was afraid to walk on her own.
127On mental state examination, Dr van der Linden opined:[35]
“… She was pleasant and co-operative, easy to establish a rapport with and maintained good eye contact. She often sobbed uncontrollably but nonetheless was reactive and smiled appropriately. She was very anxious but there was no sense of pervasive depression. Her speech was fluent and of normal tone, rate, volume and modulation and she spoke continuously. Content centred around her being bullied and the neglect of aged care residents. There was no evidence of formal thought disorder, cognitive deficits, suicidal ideation, or psychotic phenomena. I detected no abnormal movements. I believe she gave a frank account of her situation without obvious exaggeration.”

[35] PCB 71
128Dr van der Linden concluded that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood and a Generalised Anxiety Disorder.
129He opined that the plaintiff did not have a current work capacity due to her severe and chronic anxiety. He recommended a referral to a psychologist or psychiatrist.
130This report was undertaken more than four years ago and is of limited assistance to the assessment of the plaintiff’s current condition.
Dr Justin Lewis, psychiatrist
131The plaintiff tendered three reports from Dr Justin Lewis, dated 11 October 2021 and 25 April 2023 (two reports). The second report dated 25 April 2023 was a repeat of the first report of that date save for the addition of seven paragraphs under the heading “Mental State Examination”.
132Dr Justin Lewis examined the plaintiff on 6 October 2021 by Telehealth, and on 20 April 2023 in person.
133When seen on the first occasion, Dr Justin Lewis noted that the plaintiff advised him that the employer had closed down shortly after she ceased work. He noted the plaintiff told him the following:[36]
“Ms Hodgson stated that she has been struggling with lack of purpose, structure, and routine since work cessation. She stated that she places importance on trying to reduce her levels of stress and tends to spend time at a local lake ‘where I can sit and reflect’.
Ms Hodgson stated that she is coping reasonably well in a domestic sense. She enjoys cooking and gardening. She referred to her husband as particularly supportive.
Ms Hodgson stated that there has been a gradual trend of improvement in her mood, and reduced emotionality over time.
Ms Hodgson stated that she was referred to a rheumatologist approximately 18 months ago, as she developed diffuse pain symptoms that were subsequently diagnosed as an ‘inflammatory condition’. At the peak of pain symptoms, Ms Hodgson stated that she could ‘barely walk’. She stated that she is currently on a weaning dose of Prednisolone and will soon commence Methotrexate.
CURRENT SYMPTOMS
Ms Hodgson stated ‘I’m not too depressed these days. … My mood is generally okay’. She rated her average mood as 5/10 (0/10 representing very depressed mood; 10/10 representing relatively good mood). She stated that she can become quite anxious and overwhelmed when reflecting on workplace difficulties. She stated that she often ruminates about the perceived maltreatment at work and the events leading up to her being stood down. …
Ms Hodgson stated that her sleep does remain disrupted. Her concentration remains impacted, although she is generally improving over time. She stated that her confidence and self-esteem remain significantly impacted.
Ms Hodgson described reduced stress tolerance.”
[36] PCB 49-50

134On mental state examination, Dr Justin Lewis relevantly noted:[37]
“… She presented as an open and cooperative historian. She was visibly anxious and agitated when describing some of the more distressing workplace incidents. Her speech had an anxious quality and was of normal rate and volume. Her affect was anxious and flat. Her mood was mildly flat, however not pervasively depressed.
Major themes centred around an ongoing erosion in confidence, lowered self-esteem, and preoccupation with perceived workplace maltreatment. Reference was made to ongoing mood instability, sleep disturbance, mild cognitive difficulties, and emotional vulnerability on a background of reduced stress tolerance.
There was no evidence of suicidal ideation, or psychotic features.”
[37] PCB 52

135Dr Justin Lewis opined that the plaintiff presented with a partially remitted Chronic Adjustment Disorder with Mixed Anxiety and depressive symptoms (moderate severity).
136He noted there had been a general trend of improvement in both mood and anxiety symptoms. He thought the prognosis was fair.
137He noted that the plaintiff’s psychological symptoms did not impact on her ability to undertake activities of daily living, household duties, sporting, or leisure events.
138As to work capacity, Dr Justin Lewis opined that the plaintiff had a capacity for pre-injury employment duties “currently” limited to 10-15 hours per week on non-contiguous days “in the context of mood instability, sleep disturbance, and mild cognitive difficulties”.[38] Dr Justin Lewis did not explain why the limit of the plaintiff’s capacity was 10-15 hours per week rather than for example three non-contiguous days at 6-8 hours a day (18-24 hours per week).
[38]        PCB 54
139He noted that the plaintiff’s ongoing reduced stress tolerance and elevated levels of emotionality presented an impediment to the job application process and the intrinsic challenges of transitioning into new employment.[39]
[39]PCB 54-55
140Dr Justin Lewis re-examined the plaintiff on 20 April 2023 for the purpose of providing his report of 25 April 2023. He noted that the plaintiff said there had been no improvement in her psychological condition in the intervening eighteen months since his first examination.
141Dr Justin Lewis reported that the plaintiff told him that attending for the examination made her “feel sick”.[40] The plaintiff reported experiencing panic-like episodes, particularly when reflecting on previous employment. She reported that she did not leave home very often, that she was struggling in a domestic sense due to poor motivation and that there were days where she struggled to shower or dress. The plaintiff reported social isolation but that she enjoyed the support of her family and grandchildren.
[40]        PCB 59
142On mental state examination, Dr Justin Lewis relevantly noted:[41]
“… Ms Hodgson presented as an open and cooperative historian. She was visibly anxious and agitated when describing some of the more distressing workplace incidents. Her speech had an anxious quality and was of normal rate and volume. Her affect was anxious and flat. Her mood was mildly flat, however not pervasively depressed.
…
There was no evidence of suicidal ideation, or psychotic features.”
[41]        PCB 87

143Dr Justin Lewis’ own observations of the plaintiff’s presentation on this occasion were described in almost identical terms to those in his first report some eighteen months previously.
144Dr Justin Lewis noted that the plaintiff described a deterioration in her mood and anxiety symptoms.
145He stated that the plaintiff “continues” to describe panic-like episodes, although Dr Justin Lewis did not note such in his first report.
146Despite there being an almost identical presentation at both examinations, Dr Justin Lewis opined that there appeared to have been a significant deterioration in the plaintiff’s psychiatric state since his previous assessment, characterised by increased anxiety and depressive symptoms. He noted that work-related traumatisation features were more prominent, with an exaggerated startle response, agoraphobic behaviours, and avoidance behaviours.
147He opined that the prognosis had become increasingly negative, poor, and unfavourable with the passage of time. Dr Justin Lewis stated that consideration should be given to a further trial of antidepressant medication.
148On this occasion, Dr Justin Lewis opined that the plaintiff had no work capacity for the foreseeable future.
149Whilst Dr Justin Lewis noted that the plaintiff reported a deterioration in her symptoms on this occasion, his report did not explore the reasons for that deterioration given his own assessment of the plaintiff, on mental state examination, was almost identical to his assessment eighteen months earlier.
150Given my findings as to the plaintiff’s reliability, I am not persuaded by Dr Justin Lewis’ current opinion, which is reliant upon the plaintiff’s account of deterioration and not any meaningful change in his findings on mental state examination.
151Further, I am troubled by the fact that Dr Justin Lewis was unaware of other stressful events in the plaintiff’s life. In the circumstances, he did not have a complete history.
Dr Rasanjali Rathnayake, psychiatrist
152The defendant tendered two reports from Dr Rathnayake, dated 21 September 2022 and 8 February 2023. Dr Rathnayake examined the plaintiff by Telehealth on each of those dates.
153In her first report, Dr Rathnayake stated the plaintiff reported the following symptoms:[42]
“Ms Hodgson said that her sleep is disturbed and she kept waking in the night. She has naps in the daytime on some days. She said she has good days and bad days. On a good day, she would be full of energy and motivated. On a bad day, she feels unmotivated, and her sleep would be disturbed. Her mood would be flat on a bad day and she would be anxious. On her good days, she is not anxious in her mood would be ‘okay most of the time’. She said she feels happy when her family visits. She does not have any thoughts of harming herself. She likes to socialise with her extended family. When her bad days, she feels irritable.
She said her appetite is normal. She is able to concentrate. She did not report significant memory loss. She reported intermittent pain occurring in her shoulder joints, elbows or hip or knee joints. She said that sometimes she has muscle spasms.”
[42]        DCB 29
154Dr Rathnayake said that the plaintiff reported that she stopped taking medications more than a year previously because her anxiety had improved, and she was less depressed. In evidence, the plaintiff denied saying this to Dr Rathnayake.
155When asked about the benefit of her sessions with Ms Terry, the plaintiff told Dr Rathnayake “I have nice conversations”.
156On mental state examination, Dr Rathnayake noted as follows:[43]
“… She was tense and was close to tears once.
Her speech was normal in rate, volume and tone. Her affect ranged from flat to euthymic. She was mildly-to-moderately anxious, and her affect was reactive. The affect was well communicated.
The content of her thoughts included hope for the future. She said she looks forward to the future and added ‘I focus my life on helping others – I look forward to serving God’. There were no thoughts of worthlessness or helplessness. There was no anhedonia. There were no suicidal thoughts or other thoughts of self-harm.
Her insight and judgement was not impaired. There were no psychotic features. Attention, concentration and short-term memory were tested using the serial 7 subtraction test and other tests. She was able to give quick and accurate responses. Short-term memory was tested and was not impaired.”
[43]        DCB 30-31
157The plaintiff reportedly told Dr Rathnayake that she was no longer depressed, only anxious. She said she had good days and bad days, with the good days outnumbering the bad days.
158Dr Rathnayake opined that the plaintiff fulfilled the criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood in near full remission.
159She opined that the plaintiff had a current capacity for suitable duties up to 30 hours per week.
160On 8 February 2023, less than five months later, Dr Rathnayake reviewed the plaintiff again.
161In her second report, Dr Rathnayake noted the plaintiff reported the following symptoms:[44]
“… Ms Hodgson advised me that she was having ‘racing thoughts’. She said, ‘I forget things, I get startled easily, nothing much has changed.’
She said she finds it difficult to tolerate noise. She reported feeling very stressed when she is informed of the forthcoming independent medical examination. She said that she does not want to be reminded of work issues.
She reported that she was very anxious and was fearful of getting run over by a vehicle or having her grandchildren get run over by vehicles.
She said that she recently had two bouts of vertigo.
Current Symptoms
[44]        DCB 36-37

Ms Hodgson said that she feels unmotivated and that her energy is low. She is tired and falls asleep in her recliner chair, in the evenings. She said then she would get up and go to bed. She said that she felt very anxious. She said that she does not have panic attacks at present. She reported that her appetite is normal.
She said she feels ‘depressed on and off’. She said she is able to feel better ‘when nice things happen’. She does not have any thoughts of harming herself.
She said that she has difficulty with concentration and that she is forgetful. She said that she has only one friend. Her friend visits her sometimes.”
162On mental state examination on this occasion, Dr Rathnayake noted as follows:[45]
“… She was tense and at times underlying irritability was noted.
Her speech was not pressured. Volume and tone were normal. Her affect was moderately anxious and flat, with underlying anger. The affect was congruent with her thoughts and was reactive.
The content of her thoughts did not include thoughts of hopelessness or worthlessness. She had hope for her future. She looks forward to her grandchildren growing up. There was no anhedonia. She enjoys being around her family. Her self esteem was normal. She said that she saw herself as a caring person.
There were no thoughts of self-harm or suicide.
She perceived herself as unfairly treated by her employer. She was preoccupied with thoughts of being unfairly treated at work.
[45] DCB 38-39

Her insight and judgement was not impaired. There were no delusions, hallucinations or other psychotic features. Attention, concentration, and short-term memory were tested, using the serial 7 subtraction test and other tests. She did not want to do the serial 7 subtraction test, but did well on other tests of concentration. Her short-term memory was not impaired. Attention and concentration was not impaired.”
163Dr Rathnayake opined that the plaintiff reported a worsening of symptoms since September 2022.
164She opined that the exacerbation of symptoms “does not appear to be related to her employment”.
165Dr Rathnayake suggested that the exacerbation could be explained by the plaintiff’s “biological vulnerability to developing anxiety disorder with depression, as indicated by her past psychiatric history”.[46]
[46]        DCB 40
166The past psychiatric history to which Dr Rathnayake referred has as its source a report of the plaintiff’s GP, Dr Keshavarz, dated 3 February 2020.
167In that report (which was not tendered by either party), Dr Keshavarz reportedly noted “a previous history of anxiety condition associated with chronic history of hyperactivity since childhood … anxiety and depressive disorder 30 years before her first attendance – history of hyperactivity since childhood according to patient”.[47]
[47]DCB 15
168Dr Rathnayake said that another possible cause of the exacerbation could have been a reaction to pain affecting the plaintiff’s joints due to her inflammatory arthritis.
169Dr Rathnayake indicated that the plaintiff’s reluctance to accept medication was also a factor, and noted that the plaintiff’s treatment was inadequate. Dr Rathnayake also opined that the plaintiff’s “unwillingness to return to work has resulted in worsening of her anxiety”.
170A further possibility posited by Dr Rathnayake was that the plaintiff had a relapse of her Generalised Anxiety Disorder as she was not taking any medications.[48]
[48]DCB 41
171Dr Rathnayake noted the following as an additional comment at the end of her report:[49]
“When I asked Ms Hodgson what she saw as the reason for her deterioration in 2023, she replied that she was not aware of a reason and added, ‘the more I sit around, the more I think’.”
[49]DCB 42
172I am troubled by the fact that Dr Rathnayake was not given a history of the other stressors in the plaintiff’s life during that period.
173Dr Rathnayake recommended the plaintiff undergo an inpatient assessment in a psychiatric unit to identify the factors perpetuating her Anxiety Disorder and for a trial of medication. If her condition did not respond to medications, repetitive transcranial magnetic stimulation should be tried.
174Dr Rathnayake revised her diagnosis.
175She opined as follows:[50]
“… given her 30-year history of anxiety and depression, which was not disclosed to me by Ms Hodgson. Ms Hodgson is suffering from a pre-existing generalised anxiety disorder that became exacerbated after December 2018, and improved by September 2021 [scil 2022].”
[50]        DCB 40
176I do not accept Dr Rathnayake’s opinion. On the material before the Court, the plaintiff did not have a 30-year history of anxiety and depression. She had an anxiety condition as a teenager and possibly into her early twenties, not a continuing anxiety and depressive disorder from that time. The continuing condition was, at most, a tendency to hyperactivity.
177Dr Rathnayake’s second mental state examination of the plaintiff was not significantly different to the first. Her primary basis for changing her opinion seemed to be an incorrect understanding of the plaintiff’s prior psychological history and the plaintiff’s own report of increased symptoms. Given my findings regarding the plaintiff’s reliability, I am unable to accept Dr Rathnayake’s most recent opinion.
Dr Daniel Lewis, rheumatologist
178The plaintiff tendered six reports from Dr Daniel Lewis dated 25 May 2021, 23 June 2021, 6 July 2021, 25 October 2021, 29 November 2021, and 24 January 2022.
179In his first report, Dr Daniel Lewis noted that the plaintiff had developed all the features of an inflammatory arthritis “over the last few months”, that is, since early 2021. He said:[51]
“… She has become stiff and sore has great difficulty mobilising and has needed help. She has had a lot of pain in bed overnight. She has lost range of movement of the shoulders and her grip strength this (sic) week. Her knees are stiff. She walks with a waddling stiff gait and has difficulty getting on and off a chair.”
[51]        PCB 73
180Dr Daniel Lewis opined that it was likely that the plaintiff had developed an inflammatory polyarthritis. He prescribed a reducing dose of prednisolone and ordered repeat blood tests.
181Dr Daniel Lewis reviewed the plaintiff on 10 June 2021. She reported she was back to normal, had good energy and her mental health was good.[52]
[52]PCB 76
182Upon review of the plaintiff on 23 June 2021, Dr Daniel Lewis found the plaintiff to be “very well,” she had good energy and no obvious restrictions. He opined that there were no features of inflammatory arthropathy or polymyalgia. She was continuing a reducing dose of prednisolone.[53]
[53]PCB 74
183In his report dated 6 July 2021, Dr Daniel Lewis outlined his treatment of the plaintiff to that date. He noted that when he last assessed the plaintiff, her response to therapy had been positive and she could resume pre-injury duties.
184On 25 October 202, Dr Daniel Lewis reviewed the plaintiff. He noted that her condition had deteriorated since reducing her dose of prednisolone. He noted the plaintiff had been involved in a transport accident, although had not been injured, and her anxiety had been high. Dr Daniel Lewis recommended the plaintiff continue on 5 milligrams of prednisolone and increase her dose of methotrexate from 10 to 15 milligrams per week.
185On 29 November 2021, Dr Daniel Lewis reviewed the plaintiff again. She continued to take 5 milligrams of prednisolone daily and 15 milligrams of methotrexate weekly. The plaintiff reported feeling better and some days, she was free of symptoms. She reported her anxiety remained high.

186Dr Daniel Lewis recommended a slight reduction in the plaintiff’s dose of prednisolone, but continuation of the dose of methotrexate. He noted the plaintiff’s symptoms were atypical, and the laboratory features of inflammation did not accurately correlate with the plaintiff’s symptoms.
187The most recent report from Dr Daniel Lewis was dated 24 January 2022. He noted the plaintiff continued on a reducing dose of prednisolone, and methotrexate. She was quite well, and her movements were normal. She had residual pain in her back and groin. She experienced high anxiety over December but that had settled.
188Dr Daniel Lewis scheduled a further review of the plaintiff in April 2022.
189No further reports were tendered from Dr Daniel Lewis. It is not clear when the plaintiff last saw him for treatment.
Conclusions on the medical evidence
190Both Dr Justin Lewis and Dr Rathnayake were of the view that the plaintiff had a capacity for pre-injury duties when they first examined her, albeit Dr Justin Lewis opined this was limited to 10-15 hours per week at that time.
191Both Dr Justin Lewis and Dr Rathnayake noted, upon re-examination, that the plaintiff reported a deterioration in her symptoms since their earlier examinations.
192However, there was minor change in their reported findings on mental state examination. I find their revised opinions were heavily dependent upon acceptance of the plaintiff’s account.
193Neither Dr Justin Lewis nor Dr Rathnayake were given a history of the various other stressors that the plaintiff discussed with her psychologist (set out above). Ms Terry’s notes were not provided to them. No explanation was provided as to why that information was not given to them.
194Ms Terry did not canvass the other stressors in her reports. Mr Makowski submitted that the irresistible conclusion was that Ms Terry did not mention them because they were not significant. I do not accept that submission as it requires me to infer they are not mentioned for that reason. I am unable to find that is the more likely inference on the evidence.
195If the medico-legal psychiatrists had known of and been able to opine regarding those other matters, various possible findings may have been open including:
·        the other matters were life events which caused no ongoing psychological difficulty;
·        the plaintiff’s ability to deal with life events had been impaired due to her compensable psychological condition;
·        the plaintiff’s current psychological condition is partly explicable due to some or all of those unrelated matters.
196Apart from being able to conclude that those other matters were of sufficient significance to the plaintiff to raise them with her psychologist, the evidence does not enable me to make any other findings about their current affect upon the plaintiff.
197Given my findings regarding the plaintiff’s reliability, and the fact that Dr Justin Lewis and Dr Rathnayake did not have a complete history, I am unable to accept their revised opinions.
198If, contrary to my findings, the claimed impairment consequences are all attributable to the plaintiff’s compensable condition, I will consider whether they meet the statutory thresholds.

Permanence
199The defendant submitted that the plaintiff had not established that her psychological condition is likely to persist through the foreseeable future.
200The main basis for this submission was that the plaintiff was scheduled to attend a treating psychiatrist for the first time in November 2023.
201The plaintiff has experienced psychological symptoms since December 2018. Although the plaintiff is soon to see a treating psychiatrist for the first time, I would be speculating if I were to conclude that such consultation was likely to lead to any significant improvement, or any alteration in the plaintiff’s condition.
202On the basis of the available medical evidence, I find that is likely that the plaintiff will continue to suffer symptoms of an Adjustment Disorder with Mixed Anxiety and Depression through the foreseeable future.
203I find that the plaintiff’s injury is permanent in the requisite sense.

Are the impairment consequences of the Plaintiff’s mental or behavioural disturbance “severe”?
204The consequences of an injury are “serious” if, when judged by comparison with other cases in the range of impairments or losses, they can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[54]
[54]        Humphries and Anor v Poljak [1992] VR 129 at 140
205As this is a paragraph (c) case, the plaintiff must establish that she has a permanent severe mental or permanent severe behavioural disturbance or disorder. The word “severe” has been held to have a meaning which is stronger in terms of significance or gravity than “serious”.[55]
[55]        Mobilio v Balliotis [1998] 3 VR 833 at 846
206In assessing the severity of the impairment consequences of the plaintiff’s psychological condition, I must identify and bring to account all the factors which emerge on the evidence as relevant to the assessment.[56]
[56]        Transport Accident Commission v Katanas [2017] 262 CLR 550
207The extent of treatment the plaintiff has undergone for that condition is just one circumstance.
208Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained.[57]
[57]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, paragraph [27] per Ashley JA
209I find that the plaintiff is suffering from an Adjustment Disorder with Mixed Anxiety and Depression.
210The plaintiff has had regular treatment from a psychologist for the past four years. She has only recently sought a referral to a treating psychiatrist.
211The plaintiff took prescribed medication for her condition for a brief period in 2019. Since that time, the plaintiff has preferred to take an herbal supplement, which she has found helpful.
212I accept that the plaintiff experiences symptoms of sadness, memory and concentration difficulties, lack of motivation, and tearfulness.
213The plaintiff has experienced some sleep difficulties but has never been a “great sleeper”.[58]
[58]T45
214I accept that the plaintiff’s psychological condition aggravated her physical conditions from time to time, but on the evidence, I am unable to determine the extent to which her physical symptoms are due to her psychological condition rather than the underlying physical condition.
215The plaintiff retains the capacity to care for herself, perform domestic tasks including cooking and cleaning, and to provide care for other family members, most recently her husband. Indeed, on her own account, the requirement to care for her husband has led to an improvement in the plaintiff’s motivation to undertake activities.[59]
[59]T108-109
216The plaintiff’s focus has been, and continues to be, her family.
217There is no loss of any particularly important recreational pursuit, or any significant social life.
218The plaintiff continues to drive, and there has been no significant impact upon her mobility more generally.
219After ceasing work, the plaintiff resumed attending church, after a long absence, and continues her regular involvement in her local church.
220For the reasons set out below, I am not persuaded that the plaintiff is incapacitated for suitable employment as a PCA.
221I find that the impairment consequences of the plaintiff’s psychological condition may be described as significant. However, in undertaking the value judgment required of me, and bearing in mind the whole of the evidence, I am not persuaded that those consequences could be described as “at least very considerable”, and they do not meet the higher test of “severe”.

Loss of earning capacity
222For the plaintiff to succeed in her claim for the loss of earning capacity consequence, she must establish:
(a)   her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe (the narrative test);
(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”); and
(c)   after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
223Section 325(2)(f) of the Act is a gateway provision. It does not involve any determination, interim or final, of actual loss of earning capacity sustained by the plaintiff.[60]
[60]Herald & Weekly Times Ltd v Jessop [2014] VSCA 292 (‘Jessop’), paragraph [37]
224The question to be answered in the context of s325(2)(f) is what a worker’s ability was to earn money in the workforce, considering their pre-injury state of health, level of employment and career opportunities at the time of injury.[61]
[61]Acir v Frosster Pty Ltd [2009] VSC 454 (‘Acir’), [175]
225The plaintiff submitted, in reliance upon Jessop and Acir, that:
“Whether or not this particular plaintiff had reached retirement age at the time of the hearing is a distraction to the proper application of the loss of earning capacity provisions in the statute that must be applied. The focus must be on capacity as described and understood in light of the authority of Jessop and Acir. The term ‘capacity’ must be consistently construed when assessing both without injury and with injury earning capacity.”[62]
[62]Plaintiff’s further submissions on economic loss dated 11 October 2023, paragraph [15]
226The defendant referred to several cases from this Court where the issue of retirement age, in a serious injury context, was considered.
227In Cuturic v Spotless Facility Services Pty Ltd,[63] Judge Saccardo determined on the evidence that he was not persuaded that the plaintiff had satisfied her onus to establish she would have continued in part-time employment after the age of seventy years. The plaintiff had attained seventy years of age at the time of the hearing of her serious injury application. Therefore, Judge Saccardo was not satisfied that the plaintiff would, but for her injury, be engaging in part-time employment as at the date of hearing. Consequently, the plaintiff had not established that her employment-related incapacity for work operated as at the date of hearing, or in the future, to be productive of any financial loss to the plaintiff.
[63][2018] VCC 889
228In Bendzius v Victorian WorkCover Authority,[64] the plaintiff was aged sixty-seven years at the date of the hearing. Judge Lauritsen determined on the evidence that he was not satisfied that the plaintiff would have worked in paid employment beyond age sixty-five years. Consequently, the plaintiff had not established that he had a loss of earning capacity at the date of the hearing, and permanently thereafter.
[64][2019] VCC 915
229In Madaroski v Colonial Meat Export Pty Ltd,[65] the plaintiff was aged seventy-one years at the date of hearing. He deposed to an intention to keep working into his seventies but for his injury. Judge K Bourke was not satisfied on the evidence that the plaintiff would have been able to exercise his theoretical work capacity beyond age sixty-five absent his injury. Therefore, the plaintiff had not established that any incapacity operated at the time of the hearing or in the future so as to be productive of financial loss to him.
[65][2021] VCC 113
230The plaintiff is currently seventy years of age.
231The plaintiff submitted that she intended to continue working “beyond the age of 70”.[66]
[66]        T80
232She contended that she has no realistic “after injury” earning capacity by reason of her work-related psychological condition.
233The defendant submitted that the plaintiff would have retired by aged seventy years, and therefore has no current lost capacity.
234Alternatively, it was submitted that the plaintiff’s work-related psychological condition did not incapacitate her for suitable employment, and the plaintiff had not satisfied her onus of establishing that she is permanently incapable of earning at least 60 per cent of her “without injury” earnings.
“Without injury” earnings
235The plaintiff’s gross income in the three financial years preceding December 2018 was $24,556, $24,573, and $27,515.[67]
[67]PCB 66
236Taking the highest figure of $27,515 as the figure that most fairly reflects the plaintiff’s earning capacity if the injury had not occurred, the 60 per cent figure is $16,509 per annum or $317 per week.
“With injury” earning capacity
237The plaintiff has not worked in any paid employment since November 2018.
238Mr Makowski agreed that if the plaintiff was able to work 12 hours or more per week as a PCA, she would not satisfy the statutory threshold.[68]
[68]T169
239From about 2019 to 2021, the plaintiff cared for her great grandson (when aged two to four years), one to two days a week. The plaintiff was able to reliably undertake this care to enable her granddaughter to work.
240In about May 2023, the plaintiff applied to do voluntary work as a cook in the homeless winter shelter for her local church. Her evidence was that she went twice but did not want to continue because she looked sad and miserable and the homeless had “got enough to deal with”.[69]
[69]T110
241Since July 2023, the plaintiff has been a full-time carer for her husband. It was clear from the plaintiff’s viva voce evidence at the resumed hearing, and I accept, that providing this care for her husband has led to an improvement in the plaintiff’s motivation.[70] Coupled with this, the plaintiff said that she felt motivated to do things, such as cleaning and cooking, if members of her family visited.[71]
[70]T108
[71]T82
242On the whole of the evidence, and given my findings regarding the plaintiff’s reliability, I am not persuaded that the plaintiff is currently incapable of working as a PCA for 12 hours or more per week.
243Given my findings as to the plaintiff’s work capacity, it is not necessary to consider the issue regarding retirement age. However, given the matter was fully argued, I shall do so.
Retirement age
244The plaintiff last worked in November 2018, when she was sixty-five years old.
245In her first affidavit, the plaintiff said as follows regarding her retirement intentions:
“50.Had it not been for the psychological injuries I suffered at work, I believe I would still be working in aged care. I had intended to continue working in aged care beyond the age of 70. I did not consider the physical demands of the job to be beyond me, if I had not suffered psychological injuries at work.”[72]
[72]PCB 22

246The plaintiff was not challenged regarding her intended retirement age during cross-examination. Despite this, the defendant submitted:
“… Such evidence does not withstand scrutiny given the very serious physical injuries that plagued her during the subsequent years after ceasing work.”[73]
[73]Defendant’s further submissions on the plaintiff’s claim for loss of earning capacity dated 9 October 2023, paragraph [7]
247The evidence reveals that the plaintiff had several physical conditions which troubled her after November 2018, including bilateral carpal tunnel syndrome and polyarthralgia. I find those are better described as independent supervening events and are matters for consideration in a damages assessment, not in this gateway application.
248The closure of the aged care facility at which the plaintiff worked in early 2020 is also a damages trial issue.
249The plaintiff deposed to being passionate about her role as a PCA. She was not challenged on this.
250I accept that the plaintiff enjoyed being a PCA and having the role of a carer.
251I also accept that, absent her psychological injury, the plaintiff would have continued to work beyond age sixty-five years and may possibly have continued to age seventy years.
252Considering the whole of the evidence, I am not persuaded that the plaintiff has satisfied her onus to establish that but for her injury, she would have continued working beyond the age of 70 years, given that:
(a)   I found the plaintiff to be an unreliable witness. I am unable to accept her stated intention that she would have worked beyond age 70 absent some independent corroboration. I note that this was not an issue touched upon by either the plaintiff’s husband or her daughter in their affidavits;
(b)   Working as a PCA can involve a significant degree of hazardous manual handling. There was no evidence before the Court as to the availability of such work to those over the age of seventy;
(c)   The plaintiff was working on a casual basis averaging 18 to 20 hours a week at the time she ceased work;
(d)   The plaintiff was sixty-five years of age when she ceased work;
(e)   The plaintiff is a family focussed woman, with children, grandchildren, and great grandchildren. She has prioritised the need to provide care and assistance to her family.
253I do not accept the submission that the plaintiff’s intended retirement age is a distraction in the application of the statutory test. Neither Acir nor Jessop involved a worker who had reached retirement age by the date of hearing.
254I am required to consider whether there is a relevant loss of earning capacity as at the date of hearing of this application that is productive of the loss measured in accordance with s325(38)(f) of the Act.
255In summary, the plaintiff has not satisfied her onus to establish that she is currently incapacitated from performing suitable employment by reason of her compensable condition that is productive of the requisite loss.
256Even if the plaintiff had such an incapacity, I am not persuaded that the plaintiff would have worked beyond aged seventy years, absent her compensable injury.   Therefore, any such incapacity would not presently, and permanently, be productive of a financial loss to the plaintiff.

Conclusion
257The plaintiff’s application is dismissed.
258I will hear the parties on the issue of costs.

[2023] VCC 2183

1 December 2023