Cocolaras v Taylors Market Pty Ltd (ABN 360 682 858 16) (Ruling)

[2023] VCC 2056

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-04615

TERESA COCOLARAS	Plaintiff
v
TAYLORS MARKET PTY LTD (ABN 360 682 858 16)	Defendant

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JUDGE:

HER HONOUR JUDGE MANOVA

WHERE HELD:

Melbourne

DATE OF HEARING:

2 November 2023

DATE OF RULING:

9 November 2023 (Unrevised)

10 November 2023 (Revised)

CASE MAY BE CITED AS:

Cocolaras v Taylors Market Pty Ltd (ABN 360 682 858 16) (Ruling)

MEDIUM NEUTRAL CITATION:

[2023] VCC 2056

RULING
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Subject:ACCIDENT COMPENSATION

Catchwords: Application pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 – referral of matter to Medical Panel to answer medical questions – whether questions depend substantially upon factual issues more appropriately determined by a court – psychological and psychiatric injuries – bullying

Legislation Cited:      Workplace Injury Rehabilitation and CompensationAct 2013, s274, s304 and s335

Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola [2012] VSCA 331; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Dordev v Cowan [2006] VSCA 254; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108

Ruling:  The plaintiff’s application to refer questions to the Medical Panel is refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Johnstone	Carbone Lawyers
For the Defendant	Mr D Churilov	Russell Kennedy Lawyers

HER HONOUR:

Introduction

1This is an application by Teresa Cocolaras (“the plaintiff”) for referral of certain questions to a Medical Panel pursuant to section 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).

2I have provided the parties with an unrevised, restricted and not suitable for publication ruling on 9 November 2023. I also heard the parties and made orders in respect of costs on the same day.

3Pursuant to section 274(5) of the WIRCA, a court must not refer questions to the Medical Panel if satisfied that formation of the Medical Panel’s opinion in respect of the proposed questions “…would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel”.[1]

[1] Section 274(5) of the WIRCA

4The defendant opposes the referral on this basis.

5The defendant filed with the Court an affidavit of Audrey Elena Capasso sworn
1 November 2023 (“the affidavit”). The affidavit set out the following matters:

(a)   On 24 August 2023, the plaintiff filed an originating motion seeking leave to commence proceedings for psychological and/or psychiatric injuries sustained as a result of the conduct of the defendant in the course of the plaintiff’s employment on or about 2015 up to on or around 10 December 2021;[2]

(b)   On 4 September 2023, the plaintiff’s solicitor served a notice of intention to refer medical questions to a Medical Panel;[3]

(c) On 11 October 2023, the plaintiff’s solicitor served a proposed joint statement to the Medical Panel pursuant to section 304 of the WIRCA;[4]

(d) On 24 October 2023 the defendant’s solicitor informed the plaintiff’s solicitor that the defendant would oppose the plaintiff’s proposed Medical Panel referral pursuant to the grounds enshrined under section 274(5) of the WIRCA;[5] and

(e)   An affidavit of the plaintiff in support of her serious injury application (“the serious injury affidavit”), sworn on 17 April 2023, was exhibited to the affidavit[6] together with the proposed Medical Questions and Notice of Particulars.

[2] Pursuant to section 335(2)(d) of the WIRCA

[3]        Exhibit AEC-2 to the Audrey Elena Capasso affidavit sworn on 1 November 2023 (“the affidavit”)

[4]        Exhibit AEC-3 to the affidavit

[5]        Exhibit AEC-4 to the affidavit

[6]        Exhibit AEC-1 to the affidavit

6The six proposed medical questions filed with the Court[7] and dated 12 October 2023 include, but are not limited to, the following:

(a)   Question 1 – “What is the nature of the current medical condition of the plaintiff’s psychological injury, including but not limited to stress anxiety and depression”; and

(b)   Question 2 – “Does any and if so what medical condition of the plaintiff’s psychological injury identified in response to question 1 result from, or is it materially contributed to, by the injury suffered during the course of employment between around August 2021 to December 2021?”.

[7]As also contained in Exhibit AEC-2 to the affidavit

7The application came before me on 2 November 2023 in the Court’s Workcover List. Counsel for the plaintiff and counsel for the defendant made submissions on the application (via Zoom).

8No medical reports were provided to the Court by either party.

Background

9The serious injury affidavit provides the following relevant background:

(a)   The plaintiff is 57 years old;

(b)   In or around 2015, the plaintiff commenced permanent part-time employment with the defendant as a cashier. Her duties included serving customers, preparing and displaying meat, and liaising with other staff and the management team;

(c)   In the first seven years of her employment, the plaintiff had no issues with the defendant and enjoyed her work;

(d)   In August 2021, a new member named “Sonia” commenced work together with the plaintiff. According to the plaintiff, initially her working relationship with “Sonia” was positive. However, and after some time, “Sonia’s” attitude towards the plaintiff abruptly changed;

(e)   The plaintiff alleges that as a result of negative interactions with “Sonia”, she began to experience anxiety and psychological symptoms;

(f)    In October 2021, the plaintiff approached her manager “Stefano” to discuss the issue of her working relationship with “Sonia”. The result of that discussion was that the plaintiff felt that her concerns were dismissed and that the issue remained unresolved. This interaction made her extremely anxious and she began losing sleep each night before work due to stress and anxiety;

(g)   Over the ensuing months, the plaintiff’s psychological symptoms increased with frequent crying at work, losing her confidence, feeling isolated and having to plead with her manager to help her sort out the working relationship with “Sonia”;

(h)   The plaintiff alleges that she made a number of attempts to discuss the issues with one of the owners of the business who responded with frustration towards her. The plaintiff describes crying at her workplace and needing to take Valium to calm herself down;

(i)    The plaintiff alleges she had a “mental breakdown” at work and she felt extremely nauseous, was struggling to breathe and had pain in her chest. As a result of this, she was referred to a psychologist for treatment;

(j)    A number of meetings with her managers were held at the workplace during which the plaintiff wanted to discuss how she was being treated at work;

(k)   A meeting between the plaintiff and one of her managers “Frank” was held on 24 November 2021 in a car park during which “Frank” was swearing at her and telling her that his brother would sort it out because he (“Frank”) had better things to worry about;

(l)    After this, another meeting was held between the plaintiff and “Sonia” during which “Sonia” is alleged to have accused the plaintiff of bringing problems from her home to work;

(m)     A further meeting was held on 8 December 2021 between the plaintiff and a manager called “Rosie”. The plaintiff alleges that she did not wish to attend the meeting but was forced to do so. On entry into the meeting room, the plaintiff alleges that the manager locked the door behind her, which caused the plaintiff’s anxiety to be triggered. The plaintiff was left feeling suffocated in the meeting room. The plaintiff alleges she was crying during the meeting and her manager “Stefano” was banging on the door telling the people inside to stop the meeting and to let the plaintiff out. On exiting the room, the plaintiff told “Stefano” she wished to call her husband and go home; and

(n)   On 10 December 2021, the plaintiff was told by management that while there had been a plan to move “Sonia” away to the Deli Department so the two women could work separately, that was no longer going to happen. The plaintiff alleges this made her feel helpless and caused her to be extremely distressed because she considered that there would be no changes in “Sonia’s” behaviour. This was the plaintiff’s last day at work.

The defendant’s submissions

10Counsel for the defendant submitted that there was a significant factual dispute. In particular, it was said that findings about events in the workplace are relevant to the Medical Panel’s diagnosis as the plaintiff alleges a number of events being instrumental in causing or aggravating her various symptoms.

11Counsel for the defendant outlined the following matters which he submitted require factual findings better made by a court:

(a)   A team member ““Sonia”” has bullied the plaintiff over many months.  The alleged “bullying” is in dispute;

(b)   Various meetings were held to discuss the issue and the conduct of the defendant during those meetings was in dispute. That conduct is said to have contributed to the formation or aggravation of her injury;

(c)   During one of the meetings, a staff member locked the door preventing her from being able to leave. This is in dispute;

(d)   The team member “Sonia” was not relocated to the Deli Department as had been promised to her by the employer. This is also in dispute;

(e)   The plaintiff was bullied, subjected to a toxic work environment and forced to attend a meeting in which she did not wish to participate. The defendant denies these matters; and

(f)    That the plaintiff voiced her concerns to her employer on numerous occasions, and all of these were ignored further triggering her symptoms. This is also in dispute.

12Counsel for the defendant submitted that even if it could be said that the plaintiff misperceived the situation and thereby considered herself to have been bullied, there still must be some aspect of her perception based on reality rather than imagined events or circumstances.

13The defendant’s position is that the allegations in the plaintiff’s serious injury affidavit about the defendant’s conduct are not real events or circumstances. If the various actions or omissions of the defendant never occurred, then there is a very sensible argument to be made that they did not give rise to her alleged symptoms.

14An example relied upon by the defendant of the unreality of the plaintiff’s allegations is the alleged broken promise by the defendant to move “Sonia” to the Deli Department. Counsel for the defendant asserted that if this never happened, it has a bearing on the Medical Panel’s assessment of her psychological state, and in particular, to the alleged incapacity for work as a result of the broken promise.

15Counsel for the defendant further submitted that even if the joint statement was couched in the language of perception, this would not cure the difficulty because there is a very real possibility that when the plaintiff is assessed by the Medical Panel, matters will rise from the state of perception to a state of actual fact.

The plaintiff’s submissions

16Counsel for the plaintiff made the following submissions:

(a)   At some stage, the plaintiff lodged a claim for statutory benefits which claim was accepted. She continues to receive weekly payments and medical and like expenses;[8]

(b)   The plaintiff has recently once again been certified by Dr Longman as having no current work capacity;

(c)   The agent has not disputed the allegations and accepted the claim;

(d)   That a damages proceeding would be the more appropriate forum for the ventilation of the defendant’s issues;

(e)   That Dr Krapivenski (whose report was commissioned by the defendant) accepts that the injury arises from the plaintiff’s employment;

(f)    That the affidavit in response to the serious injury application accepts that the plaintiff was absent due to workplace injury;

(g)   That the defendant has made no attempt to agree to the contents of the statement of agreed facts; and

(h)   That there is scope to adjust the wording of the statement of agreed facts.

[8]The Court was not provided with documents regarding this claim or its acceptance

Does the formation of an opinion by the Medical Panel depend substantially on the resolution of factual issues more appropriately determined by a court?

17In United Doormakers (Vic) Pty Ltd v Amendola[9] the Court of Appeal considered a ruling made by a judge refusing to refer questions to a Medical Panel on the basis that there were factual issues more appropriately determined by a Medical Panel:

“… It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in a adversarial setting – something which is not available to a Medical Panel…”[10].

[9][2012] VSCA 331

[10]Ibid at paragraph [20]

18As stated above, the plaintiff’s serious injury affidavit provides that her anxiety and depression symptoms arise from, and are exacerbated by, various interactions in the workplace. A number of these are disputed by the defendant.

19In particular, the following events and interactions are in dispute:

(a)   Interactions with “Sonia” and the defendant’s refusal to take action to resolve the situation caused the plaintiff to suffer her first mental breakdown at work;[11]

(b)   When the plaintiff approached “Frank” and “Stefano” with her concerns, Frank asked whether she needed help with lifting. The plaintiff felt that this conversation “…symbolised how ignorant the owners were to the workplace bullying I was a victim of, which exacerbated my sadness and sense of hopelessness”;[12]

(c)   After the meeting on 24 November 2021, the plaintiff outlines that she was “suffering severe anxiety and nausea” and on that day in a further meeting in the car park, also being sworn at and threatened with “the sack” by Frank;[13]

(d)   Being forced to attend a meeting on 8 December 2021 against her will and being locked in the meeting room. The plaintiff outlines that this “…triggered my anxiety”[14] and that “…I just broke down and started to cry and scream…”;[15] and

(e)   On 10 December 2021, the plaintiff was informed that “Sonia” would now not be moved to the Deli Department and this caused her to become extremely distressed and leave her employment.[16]

[11]Exhibit AEC-1 to the affidavit at paragraph [19]

[12]Exhibit AEC-1 to the affidavit at paragraph [20]

[13]        Exhibit AEC-1 to the affidavit at paragraph [21]

[14]        Exhibit AEC-1 to the affidavit at paragraph [23]

[15]        Exhibit AEC-1 to the affidavit at paragraph [24]

[16]        Exhibit AEC-1 to the affidavit at paragraphs [25] to [26]

20I accept the defendant’s submission that a Medical Panel cannot form its opinion on the nature and extent of the plaintiff’s condition without first arriving at a resolution of these factual issues.

21The Medical Panel’s assessment of the issues is limited to the contents of the documents provided and to any history given by the plaintiff to the Medical Panel. That history cannot be tested. Even if witness statements are provided to the Medical Panel, they are also subject to the same limitation, that is, their contents cannot be tested.

22If the Medical Panel was left to resolve the factual issues by reference only to the history provided by the plaintiff, medical reports and the statements of the various witnesses, unfairness would arise to both parties.

23Cross-examination of witnesses including the plaintiff is critical to the determination of these disputed matters. Therefore, I find that the disputed factual issues are such that they are more appropriately determined by a court.

24I do not accept the plaintiff’s submission, which was in effect that the defendant was bound by its acceptance of the plaintiff’s claim or its acceptance (in the serious injury response), that the plaintiff had been away from work due to a workplace injury.

25In Sednaoui v Amac Corrosion Pty Ltd[17] (“Sednaoui”), the Court of Appeal outlined that while acceptance of a claim may constitute an admission of some significance that the injury had been sustained in employment, such an admission is not conclusive:

It may be accepted that the admission, constituted by the acceptance of the applicant’s WorkCover claim form and the subsequent payment of compensation, was a significant admission. But the significance of the respondent’s admission should not be overstated. It was an admission made on behalf of the respondent by a person employed by an entity (Allianz), in circumstances where that person and Allianz (by reference to whatever principles of attribution might be applied in respect of Allianz) did not have personal knowledge of the injury alleged in the claim form, or the circumstances of its alleged occurrence. Moreover, it was in part an admission of an event that was alleged to have happened on a date and time that the applicant accepted was incorrect. Thus, whatever else might be said, the admission could never have been accepted in its entirety by the judge…[18]

…..

… The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.[19]

(citations omitted)

[17][2017] VSCA 66

[18]Sednaoui at paragraph [61]

[19]Sednaoui at paragraph [67]

26Therefore, and notwithstanding that the plaintiff is continuing to receive weekly payments of compensation and medical and like expenses, the defendant is not precluded from challenging the cause or circumstances of her injury. It follows that the more appropriate forum for that challenge is a court.

27I also, therefore, do not accept the plaintiff’s submission that a damages proceeding would be the more appropriate forum for resolution of the defendant’s “factual issues”.

28The plaintiff has applied for leave to commence common law proceedings against her employer. The defendant disputes many of the allegations in the serious injury affidavit and so is thereby also calling the plaintiff’s credit into doubt.

29In serious injury applications, the plaintiff’s credit is often crucial as the opinions of the doctors are based on the histories provided. Further, there must also be some degree of acceptance by doctors of the symptoms that the plaintiff alleges to have arisen from her employment[20]. These are all relevant to a court’s assessment of the plaintiff’s consequences.

[20]Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448 and Dordev v Cowan [2006] VSCA 254 at paragraph [14]

30In particular, in the serious injury application, the plaintiff alleges a variety of psychiatric consequences said to arise from disputed conduct. It is even more important, in such a case for a Court to hear the evidence and make findings of fact about the conduct and the alleged consequences to the plaintiff.

31I reject the plaintiff’s submission that the defendant is somehow bound by the medical opinions of its doctors. Dr Krapivenski, for instance, was said to have accepted that the plaintiff’s injury arises from her employment. Medical opinions are based on the history provided by the plaintiff.  Where that history is in dispute, little weight can be attached to the opinion by a court.[21]

[21]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]

32In this case, given the “factual dispute” which the defendant has outlined, it is clear that the plaintiff’s credit is squarely in issue. Resolution of the issue of her credit, together with findings about the disputed allegations of the defendant’s conduct, must be made at a serious injury application and cannot be left to a damages proceeding.

33I reject the plaintiff’s submission that there is scope to adjust the wording of the “Statement of Agreed Facts”. If the defendant does not agree that the various events took place or that they took place as alleged by the plaintiff, then there is no scope for adjustment of the “Statement of Agreed Facts”.

34For all these reasons, I am satisfied that the formation of an opinion by a Medical Panel would depend substantially on the resolution of factual issues which are more appropriately determined by a court.

35I therefore dismiss the plaintiff’s application that questions be referred to a Medical Panel.

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