Dale v Victorian WorkCover Authority
[2022] VCC 346
•28 March 2022
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03103
| JASON MATTHEW DALE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 March 2022 | |
DATE OF JUDGMENT: | 28 March 2022 | |
CASE MAY BE CITED AS: | Dale v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 346 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – development of a headache condition – development of a mental or behavioural disturbance or disorder – diagnosis of the respective injuries – whether the impairments are permanent – disentangling – whether the physical injury is “serious” – whether the psychiatric injury is “severe” – separately considering loss of earning capacity consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr J Fitzpatrick | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr J Angenent | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff is a fifty-year-old married man who suffered injury in the course of his employment with the Metropolitan Fire and Emergency Services Board on 30 and 31 August 2018.
2The plaintiff was a member of the Metropolitan Fire Brigade. He was required to attend what he describes as an extremely large chemical fire in West Footscray on 30 and 31 August 2018. He inhaled fumes from the chemical fire which he says resulted in him suffering a number of symptoms on which he now bases his application for serious injury.
3The plaintiff submitted that he has suffered a physical injury constituted by headaches, and psychiatric injury. He submitted that he should be given leave with respect to each injury for both pain and suffering and loss of earning capacity.
4The defendant informed me that it conceded that the plaintiff had suffered a compensable injury, however, it submitted that the plaintiff’s application for serious injury should fail on a number of grounds. These grounds were that there is no clear diagnosis of what he is actually suffering from; that whatever he is suffering from is improving to the point where the defendant submitted the impairment resulting from the injuries is not permanent; that even if the plaintiff can establish a diagnosis and that there is no issue relevant to permanency, then he has failed to disentangle the consequences of the physical injury from the psychiatric injury. And lastly, if he is able to successfully meet each of the preceding issues, then the physical consequences are not “serious” and the psychiatric consequences are not “severe”.
5Mr C W R Harrison QC appeared with Mr J Fitzpatrick of counsel for the plaintiff. Mr J Angenent of counsel appeared for the defendant.
The medical evidence – the physical injury
6The plaintiff swore two affidavits, on 18 March 2021[1] and 21 February 2022.[2] His wife, Nancy Mo, swore an affidavit on 21 February 2022 supporting aspects of his case.[3] The plaintiff adopted the content of his affidavits as being true and correct and they were subsequently tendered. The defendant did not require the plaintiff’s wife for cross-examination, so her affidavit was subsequently tendered.
[1] Plaintiff's Court Book (“PCB”) 26-59
[2] PCB 60-75.
[3] PCB 76-82
7The defendant voiced a concern about the content of the plaintiff’s affidavits. The plaintiff expended far too much effort referring to the negligence of the employer, poor industrial relations between employees and the employer, and many observations by him which have either little importance in a serious injury application or at best, peripheral importance. Despite all of this, the defendant did not apply to have any portions of the plaintiff’s affidavits excised, and that was partly so because of my assurance that I was capable of focusing on only what was relevant and ignoring what was irrelevant.
8In addition to the affidavits, the plaintiff and the defendant tendered a large body of medical evidence which they both relied on for very different purposes. After hearing the plaintiff’s evidence, addresses by counsel, reading the material that was tendered, and also the transcript of the plaintiff’s evidence, I came to the conclusion that the best evidence which demonstrates the plaintiff’s case is contained in the medical reports. I add that it was the approach taken by counsel who concentrated their efforts on reference to that evidence, and were sparing in their reference to the plaintiff’s affidavits.
9Furthermore, the greater concentration through the defendant’s cross-examination was directed to the courtesy letters written by Associate Professor Hand, neurologist. The defendant’s purpose was to demonstrate that Associate Professor Hand was optimistic that the plaintiff would obtain a reasonable level of recovery from the headache condition, and hence the reason it raised the issue of permanency both with respect to that condition and the consequences said to result from it. I am therefore compelled to summarise each of the courtesy letters in order to determine whether there is any merit in the defendant’s submission that Associate Professor Hand’s evidence availed it or not.
10Within a short time following the plaintiff’s attendance at the chemical fire, he experienced symptoms of strong headaches, a metallic taste in his mouth, irritated eyes, sinus pain, difficulty breathing, feelings of unwellness and unsteadiness, nosebleeds, vomiting and fainting. He first obtained medical treatment from Dr Fatima Zahora, general practitioner, on 12 September 2018. She referred the plaintiff to have an MRI scan of his brain and subsequently, on 2 November 2018, she referred him to Associate Professor Peter Hand.
11Despite the fact that Associate Professor Hand became the plaintiff’s principal treater, the plaintiff did not obtain a medico-legal report from him. The plaintiff relied upon a series of referral letters and courtesy letters written by Associate Professor Hand in which he described his treatment of the plaintiff over a significant period of time. These letters are somewhat unsatisfactory because rather than answer direct questions which would ordinarily be asked relevant to diagnosis, prognosis, and treatment et cetera, the plaintiff endeavoured to derive from the letters evidence which supported a conclusion contrary to the submissions of the defendant encapsulated by the issues raised by the defendant.
12The plaintiff first saw Associate Professor Hand in November 2018. In a courtesy letter to Dr Zahora dated 18 December 2018,[4] he recounted the history given to him by the plaintiff of the chemical fire. He recorded that the plaintiff had developed a daily headache which he described ‘as a constant squeezing vice like pain or pressure at the back of his head’,[5] which was made worse with walking, straining or lying flat. He recorded that over time those symptoms dissipated to the extent that he was experiencing less headaches. Additionally, Associate Professor Hand recorded that the plaintiff also has symptoms of difficulty sleeping at night, shortness of breath, nasal bleeding, the need to blow his nose constantly, a metallic taste in his mouth, vomiting, difficulty with concentration and interference with balance. Initially, he considered that the plaintiff’s headaches were consistent with a chronic tension-type headache and that there were some post-traumatic stress factors which were contributing to his headaches. He prescribed the plaintiff Endep.
[4] Defendant's Court Book (“DCB”) 57-58
[5] DCB 57
13In a further courtesy letter to Dr Zahora dated 31 January 2019,[6] Associate Professor Hand noted that the plaintiff’s headache had improved through the use of amitriptyline. He also noted that in December 2018 to early January 2019, that the plaintiff developed a new and a “concerning symptom”. He recorded that after physical exertion, the plaintiff had experienced five episodes of abrupt sharp head pain resulting in syncope.[7] He also recorded that typically, after exertion, the plaintiff would feel fuzziness in his head and then suddenly develop a sharp pain in the occipital region, radiating to the back of his eyes. The plaintiff needed to go down on all fours because of a feeling that he was about to faint. The episode lasted seconds. Associate Professor Hand then referred the plaintiff to have a further MRI scan of his brain.
[6] DCB 59-60
[7]“Syncope” was not defined by Associate Professor Hand. I understand that it is a temporary loss of consciousness caused by a fall in blood pressure
14In a further courtesy letter to Dr Zahora dated 14 May 2019,[8] Associate Professor Hand reviewed the results of a lumbar puncture which excluded any sinister processes affecting the plaintiff. He noted that the plaintiff has “improved substantially”. He noted that the plaintiff has daily mild headaches which were not stopping him from undertaking his usual activities, noting that he was able to play golf, and return to work on alternative duties. Associate Professor Hand considered that the plaintiff was gradually recovering, and was confident that there was no major structural injury to the plaintiff’s brain. The plaintiff was no longer using Endep, but was managing with aspirin and paracetamol.
[8] DCB 61
15In a further courtesy letter to Dr Zahora dated 13 August 2019,[9] Associate Professor Hand noted that the plaintiff was looking well and had returned to full-time work. He recorded that the plaintiff was up and down and distressed, and was seeing a psychologist. He recorded that the plaintiff’s main issue was ongoing headaches related to exercise. He was unable to run. He rode a bike for about one hour, but he would experience headaches which also occurred when he coughed or yelled out at the football. He was no longer experiencing similar symptoms during sexual intercourse. Associate Professor Hand considered that the plaintiff’s headaches were a tension-type headache with elements suggestive of migraine when the headaches were more severe. He described there being a spectrum between migraine and tension-type headaches. He prescribed him Verapamil to treat migraine.
[9] DCB 63
16In a further courtesy letter to Dr Zahora dated 21 October 2019,[10] Associate Professor Hand noted that the plaintiff’s use of Verapamil had resulted in improvement in his headaches. He then distinguished between two types of headaches which is a matter of some importance which arose through the plaintiff’s evidence. He described the plaintiff’s day-to-day headaches which have improved, and also exercise headaches which he considered would also improve. He recorded that the plaintiff went on holiday to Noosa, and after a kilometre-walk he experienced intense head pain and felt generally unwell and unsteady. By this stage, the plaintiff had been prescribed Isoptin which has improved his symptoms.
[10] DCB 64
17In a referral letter dated 21 April 2020 to a Dr Angas Hamer,[11] physician, Associate Professor Hand requested that the plaintiff undergo tilt table testing. He did not explain what that testing was designed to achieve, however, he referred to the fact that he had prescribed the plaintiff Propranolol to treat his headaches and exercise intolerance.
[11] DCB 68
18In a further courtesy letter bearing the same date to Dr Richards,[12] Associate Professor Hand recorded that the plaintiff was experiencing a new symptom of pre-syncope, verging on syncope, triggered by physical activity. The physical activities which triggered those symptoms were playing soccer with his children, using a treadmill, and straining on the toilet. He noted that the plaintiff’s psychological symptoms had deteriorated, and he gained the impression that he was suffering panic attacks, and a complete breakdown with uncontrollable sobbing and crying. He noted that the plaintiff was worried about his family. He observed that the syncopal episodes might be vasovagal or neurocardiogenic syncope. He also noted that the tilt table test might identify the cause of the plaintiff’s symptoms, that he did not have any specific solution for the headaches except the use of a beta-blocker, and was optimistic that the plaintiff’s condition overall would improve.
[12] DCB 69
19In a further courtesy letter to Dr Zahora dated 12 December 2019,[13] Associate Professor Hand recorded that the plaintiff was referred back to him because of episodes of sharp exacerbations of headache, resulting in vomiting. He recorded that the plaintiff usually has a baseline headache which would suddenly and abruptly worsen, and he described it as being sharp and profound with an overwhelming need for the plaintiff to vomit. After vomiting he would return to his usual mild state of headache. He recorded that the plaintiff was having difficulty with sexual intercourse, experiencing an intense throbbing during intercourse and a difficulty experiencing orgasm because of the severity of pain. Importantly, at least from the plaintiff’s point of view, he observed that on the basis of this history, that the plaintiff had not experienced any significant improvement from the addition of Verapamil. He recommended that the plaintiff use Panadol on a regular basis. He considered that the headache related to vascular dilatation. He noted that the plaintiff had not responded well to Isoptin, so he changed his medication to Atacand. He noted, with respect to the medication regime, that treating the plaintiff was going to take some time, and he noted that the plaintiff’s anxiety symptoms appeared to him to be strongly related to his headache condition which he then described as a vicious cycle.
[13] DCB 65
20In a further courtesy letter to Dr Richards dated 4 February 2020,[14] Associate Professor Hand considered that the plaintiff was making slow but steady progress. He recorded that the plaintiff continued to be troubled by a daily headache with exacerbations, and sexual activity being a major trigger for exacerbations. He also recorded that the plaintiff has a variety of symptoms which he considered were primarily related to anxiety amongst which were what he considered to be panic attacks.
[14] DCB 67
21In a letter of referral to Dr Angas Hamer, physician, dated 21 April 2020,[15] he requested that Dr Hamer undertake tilt table testing. He referred to the plaintiff still being incapacitated by his symptoms, noting that the plaintiff’s headaches had developed into exertional pre-syncopal sensations, and less commonly syncope, which he described as being brought on by minimal amounts of exercise, and he mused whether they were vasovagal events and whether stress hormones were triggering those events. He referred to having prescribed the plaintiff Propranolol.
[15] DCB 68
22In a further courtesy letter to Dr Richards dated 21 April 2020,[16] Associate Professor Hand noted that the plaintiff had run out of Propranolol. He engaged in self-help by returning to using Verapamil. Whether by coincidence or for some other reason, he developed new symptoms after returning to using Verapamil. Associate Professor Hand recorded that the new symptoms were pre-syncope, verging on syncope, triggered by physical activity. Playing a game with his children and straining on the toilet were triggers. Standing up too quickly resulted in unsteadiness and the need to take things quietly. He referred to a fall off a treadmill which is one of the events which resulted from unsteadiness. He noted that the plaintiff’s psychological symptoms had deteriorated, sounding as if he was having worsening panic attacks and a complete breakdown, with uncontrollable sobbing and crying. He informed Dr Richards that he did not have any specific solution and I presume in terms of treatment. He considered that the plaintiff should remain on a beta-blocker. He also considered that most of the plaintiff’s symptoms might be the physical manifestations of Post-Traumatic Stress Disorder.
[16] DCB 69
23In a letter of referral to Associate Professor André La Gerche, cardiologist, at St Vincent’s Heart Centre, dated 21 April 2020,[17] Associate Professor Hand referred the plaintiff for tilt table testing. I do not think there is anything in the letter of referral that is different from the content of the earlier courtesy letters. Essentially, Associate Professor Hand was concerned to have testing undertaken to get to the bottom of the reasons why the plaintiff was experiencing the symptoms already referred to.
[17] DCB 71
24In a further courtesy letter to Dr Richards dated 14 July 2020,[18] Associate Professor Hand recorded that the plaintiff had a rough time over the last few months, presumably preceding the writing of the courtesy letter. He recorded that the plaintiff had experienced a lot of anxiety, a degree of social agoraphobia and probably panic attacks. He then distinguished those symptoms by referring to the next body of symptoms as “physical symptoms” of light headedness and being pre-syncopal. He gave examples of walking with his children resulting in throbbing headache, nausea and vomiting. He then referred to the referrals for testing. He considered that the plaintiff had incapacitating symptoms resulting from Post-Traumatic Stress Disorder. He considered there was no simple medical solution available except to have psychiatric and psychological treatment, and he then considered that that psychiatric condition would take a long time to resolve, noting that treatment for Post-Traumatic Stress Disorder was outside his area of expertise.
[18] DCB 72
25In a further letter of referral to Dr Hamer dated 2 November 2020,[19] Associate Professor Hand requested Dr Hayman’s opinion on the plaintiff’s ongoing symptoms and how to manage them. I do not think there is anything in the letter of referral that is different from the content of the earlier courtesy letters. He noted that he thought that the plaintiff’s symptoms were strongly anxiety driven.
[19] DCB 73
26In a further courtesy letter to Dr Richards dated 2 November 2020,[20] Associate Professor Hand noted that the plaintiff was feeling somewhat better than when he last reviewed him. He noted that the plaintiff was on an increased dose of antidepressants and was receiving treatment for his anxiety symptoms. He noted that the plaintiff continued to have episodes of syncope and pre-syncope provoked by any form of exercise. He noted that the tilt table testing was normal and therefore unhelpful, presumably in diagnosing the cause of the plaintiff symptoms. He noted that the plaintiff’s headaches continued to be a daily issue and were fluctuating. He noted that he continued to use Propranolol.
[20] DCB 74
27In a further courtesy letter to Dr Richards dated 20 April 2021,[21] Associate Professor Hand recorded that the plaintiff had undertaken an intensive post-traumatic stress disorder course in Geelong which he described as being extremely helpful for the plaintiff. He referred to treatment provided by Dr Hayman, who prescribed Midodrine. He noted that the plaintiff continued to use Propranolol for migraine prevention. He then noted, and I think importantly, that the plaintiff “continues to be much the same as before” relevant to his headaches. I pause to observe here that it is an observation that appears to me to have been made after reviewing the treatment provided by him to the plaintiff for the symptoms of which the plaintiff complained consistently of headache. He noted that the plaintiff accepted that a lot of his headache condition was driven by stress and was not curable in a simple way.
[21] DCB 75
28The last courtesy letter was directed to Dr Richards and dated 20 August 2021,[22] in which Associate Professor Hand appears to me to have specifically limited his comments to the plaintiff’s headache condition. He said:
“… He has had no major improvement or gains in the last four months. The major issue seems to be ongoing syncopal- like symptoms, with multiple falls particularly triggered by abrupt changes in posture. He had a small fall this morning whilst in the shower when he stood up too quickly.
As you know, Jason remains on propranolol 80 mg BD which I have been using for headache control. I am not convinced that this has made a big difference to his symptoms, but initially he felt that it did. He is also on midodrine treatment from Dr Angas Hamer for his neurocardiogenic syncope. I am concerned that the beta blocker could be counteracting the midodrine or at least contributing to his syncopal symptoms. …
I think it is time to cease the propranolol. I have asked him to wind it down gradually by one tablet every two weeks until finished.
I think it is worth a trial of a new migraine prophylactic agent, Emgality. This is a CGRP antagonist, which has no interactions with other medications, and no significant side effects. It is very helpful for chronic migraine, and we can regard Jason’s symptoms as a form of chronic migraine. It is certainly worth giving this treatment a trial. … .”
[22] DCB 76
29I will pause here to make some interim observations. Firstly, the defendant’s reliance upon the earlier courtesy letters to demonstrate that Associate Professor Hand was optimistic that treatment and the effluxion of time would result in the plaintiff obtaining a measure of recovery is simply not borne out by what Associate Professor Hand considered to be the plaintiff’s situation in the last courtesy letter to Dr Richards. As I have already observed, it is a courtesy letter which appears to me to be specifically limited to the headache condition, although, I do note that Associate Professor Hand does make a reference to the plaintiff’s Post-Traumatic Stress Disorder, but that reference appears to be rather more in passing and noting that he believed that the plaintiff was suffering from that condition as well.
30Secondly, my appreciation of the analysis undertaken by Associate Professor Hand is that the syncopal-like symptoms diagnosed have their root cause in a headache condition. I think the aggregate of all of the courtesy letters are pregnant with a diagnosis of a headache condition. I think the balance of the neurological evidence that I will summarise shortly supports that conclusion.
31Associate Professor Brian Chambers, neurologist, examined the plaintiff for the insurance agent in June 2019. He provided a report dated 24 June 2019.[23] Associate Professor Chambers did not obtain the same history as Associate Professor Hand, because he only examined the plaintiff once some ten months after the chemical fire; however, he obtained a history of constant headache, a spiking of the headache four to six times per month, lasting up to an hour; pain at the back of the head, shooting forward to behind the eyes; constant aching discomfort with superimposed sharp stabbing and shooting pain; associated fuzzy vision, plus light and noise sensitivity; feelings of dizziness and unsteadiness; vomiting, and headaches exacerbated by physical exertion. After examining the plaintiff and reviewing relevant radiology, he considered that an appropriate diagnosis was a migraine condition with a mild cognitive dysfunction which he considered was likely to be secondary to the headaches rather than to a primary brain injury.
[23] DCB 9-14
32Dr Janaka Seneviratne, neurologist and clinical neurophysiologist, examined the plaintiff in November 2021. He provided a report dated 12 November 2021.[24] Dr Seneviratne did not obtain as extensive a history as Associate Professor Hand, however, he obtained a history of some of the treatment provided by Associate Professor Hand including more recent use of Botox, and otherwise recorded the plaintiff’s current symptoms as follows – constant headaches behind the eyes; associated nausea, vomiting, photophobia and phonophobia; visual blurring; clenching of the jaw due to stress secondary to headache; neck pain; episodes of syncope and feeling hung over. He recorded that the plaintiff told him that his physical condition has improved only mildly. He recorded that the plaintiff had also developed anxiety and depression which he understood had been diagnosed as Post-Traumatic Stress Disorder, and an impairment of memory. Dr Seneviratne reviewed the reports of a number of medical practitioners and other assessors, but it is not clear to me whether he was provided with all of the courtesy letters from Associate Professor Hand which I have summarised. He, however, expended quite some time summarising the opinion of Associate Professor Chambers. Dr Seneviratne also reviewed the report of Dr Ramon Mocellin, consultant neuropsychiatrist, dated 14 July 2021, who considered that the plaintiff had suffered a Post-Traumatic Stress Disorder with Depressed Mood. He ultimately concluded that the plaintiff was predominantly suffering from psychological injuries which he considered were likely to be a Post-Traumatic Stress Disorder and possibly the development of migraine headaches. He did not consider that the plaintiff had suffered a traumatic brain injury. He acknowledged the importance of the opinion of Associate Professor Hand because when he was asked for any recommendations for treatment or management of the plaintiff, he recommended that guidance be obtained from Associate Professor Hand regarding ongoing management for his headache condition. He also recommended Botox as a treatment option.
[24] DCB 25-29
33Dr Seneviratne considered that it was unlikely that the plaintiff would be able to return to his work with the Metropolitan Fire Brigade. However, he considered that he could return to modified or alternative duties at his pre-injury hours with restrictions on the degree of physical exertion the plaintiff would be exposed to in undertaking any heavy manual work. He accepted that the plaintiff was fit for all of the forms of employment referred to in a report of CAC comprising a 130-week vocational assessment report dated 24 May 2021 which I will refer to in more detail below.
34The last neurologist to examine the plaintiff is Professor Mark Cook, neurologist and epileptologist, who examined the plaintiff on 9 October 2021. He provided a report dated 9 October 2021.[25] Professor Cook appears to have obtained a sufficient history of the onset of the plaintiff’s symptoms and his treatment before then recording a history of the plaintiff’s current symptoms. He recorded that the plaintiff was sleeping poorly because of headache; was often not refreshed when he woke, and would wake often during the night; the headaches were constant, described with retro orbital discomfort bilaterally associated with tightness in the jaw; a throbbing component often accompanied by nausea to the point where it would build up and cause him to vomit, with the headaches being temporarily relieved after that occurred; assisted by lying down in a dark room, but then experiencing a sense of disequilibrium, and significant anxiety and depressive symptoms with some suicidal thoughts. After examining the plaintiff and reviewing relevant radiology, he considered that an appropriate diagnosis was migraine condition and Post-Traumatic Stress Disorder.
[25] PCB 95-103
35Professor Cook considered that the plaintiff did not have the capacity to perform his pre-injury duties with the Metropolitan Fire Brigade. He also considered that it was difficult to see the plaintiff ever returning to that work or indeed, any work that involved physical activity of any degree.
36I expressed the view during the hearing that the relevant evidence going to whether the plaintiff had suffered a diagnosable physical injury lay within the realms of the expertise of the neurologists. I understood that the plaintiff and the defendant agreed, and indeed, both concentrated their efforts relevant to the physical injury on just that evidence. There is other evidence from other medical and paramedical practitioners who do not possess the relevant expertise of Associate Professor Hand, Associate Professor Chambers, Dr Seneviratne and Professor Cook. I do not propose to expend much effort summarising their opinions.
37Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 19 August 2021 and 26 August 2021. He provided a report dated 18 October 2021.[26] He was unable to confirm a diagnosis, although, he did refer to there being a psychogenic element to the plaintiff’s presentation. Otherwise, the substance of his opinion was directed to the plaintiff’s capacity to return to suitable employment.
[26] PCB 104-117
38Dr Slesenger was not provided with all of the reports of the neurologists and the psychiatrists. The reports he was provided were biased towards the plaintiff’s physical injury, although, he was aware that the plaintiff has undergone treatment for Post-Traumatic Stress Disorder at a clinic in Geelong. Despite his inability to provide a diagnosis, he considered whether the plaintiff has a capacity to return to physical work excluding any psychological or psychiatric condition. He considered that the plaintiff should not be advised to return to his pre-injury work with the Metropolitan Fire Brigade, however, he considered that he has a retained capacity to work with physical restrictions for about four hours a day, four days per week. I think his opinion is of limited value because he was not provided with all of the medical material, and in particular, the reports of Professor Cook and the psychiatrists. I think those reports would have been critically important to his assessment, the provision of a diagnosis, and an understanding of the gravity of both the plaintiff’s physical injury and psychiatric injury.
39Mr Ryan Pool, chiropractor, commenced treating the plaintiff on 16 July 2021. He provided two reports, dated 28 July 2021[27] and 10 September 2021.[28] Mr Pool treated the plaintiff from a chiropractic perspective of diagnosis and treatment which he considered to be appropriate. I am not persuaded that the diagnosis and treatment provided by him is to be preferred in any respect to that of the neurologists and in particular, Associate Professor Hand. The defendant sought to gain some advantage from the fact that Mr Pool observed that over six previous visits the plaintiff had not complained of severe headaches; reported that he was able to do more at home without being fatigued, and that his headaches were consistently lower and that his balance has improved. I will return to these findings later in these reasons.
[27] PCB 89-90
[28] PCB 91-92
40Ms Jaclyn McGibbony, physiotherapist, treated the plaintiff at some stage. She provided a report dated 23 June 2021.[29] I confess to having some difficulty understanding the content of her report because it is couched in the cryptic language which is no doubt familiar to physiotherapists, however, it would appear that she detected that the plaintiff had difficulties with his balance. She diagnosed that he has a vestibular disturbance which is inconsistent with the opinions of the neurologists. Ms McGibbony treated the plaintiff from a physiotherapy perspective of diagnosis and treatment which she considered to be appropriate. I am not persuaded that the diagnosis and treatment provided by her is to be preferred in any respect to that of the neurologists and in particular, Associate Professor Hand.
[29] PCB 93
41Dr Ralph Poppenbeek, occupational physician, examined the plaintiff for the defendant on 13 January 2022, and provided a report dated 14 January 2022.[30] Dr Poppenbeek was provided with what he described as multiple documentation, but it is unclear to me precisely what he was provided. He was unable to provide a diagnosis. However, it would appear that he aggregated both the neurological symptoms and the psychiatric symptoms when he described what had occurred to the plaintiff as being the onset of catastrophic symptoms. He unequivocally stated that the plaintiff has no capacity to perform his pre-injury work with the Metropolitan Fire Brigade. He considered that the plaintiff might be able to return to restricted duties from time to time, although he considered that he might be unreliable, and despite saying that, he concluded by saying that overall he did not think the plaintiff has a current work capacity. His opinion is of limited value because of the aggregation of both the physical injury and the psychiatric injury and their consequences, however, its value lies in the fact that he considers that the plaintiff has realistically no capacity to return to suitable employment. He was obviously at a disadvantage in not having the reports of all of the neurologists and the psychiatrists and their opinions in providing a diagnosis.
[30] DCB 30-38
The medical evidence – the psychiatric injury
42So far it is evident that the plaintiff suffered an associated psychiatric injury which the neurologists have diagnosed as being a Post-Traumatic Stress Disorder, or at least have entertained that as being an appropriate diagnosis of the plaintiff’s psychiatric symptoms.
43The plaintiff was referred to Dr Ramon Mocellin, consultant psychogeriatrician and neuropsychiatrist. The plaintiff was referred to him for treatment in September 2019. He provided a report dated 14 July 2021.[31] Dr Mocellin’s report is very brief. The short history he obtained was that the plaintiff experienced a number of cognitive and neuropsychiatric symptoms following the chemical fire which has impaired his capacity to work. He considered that the plaintiff was experiencing a Post-Traumatic Stress Disorder with associated Depressed Mood and Anxiety. He considered that the plaintiff would benefit from psychological, group and pharmacological treatment of that disorder to restore some functioning. It would appear that he prescribed the plaintiff Desvenlafaxine to be taken in the morning.
[31] PCB 86-88
44Dr Nigel Strauss, consultant and occupational psychiatrist, examined the plaintiff on 4 February 2021 and provided a report bearing the same date,[32] and he re-examined the plaintiff on 19 January 2022 and provided a second report bearing the same date.[33] Dr Strauss recorded a very long history of the symptoms of which the plaintiff complained which I will summarise briefly – severe headaches with frequent nausea and vomiting; shortness of breath; dry retching; blood noses; significant fatigue; effects on memory and concentration; difficulty focusing and learning; difficulty maintaining work; interference with his personal intimate relationship with his wife; struggling to play with his children; dizziness; nightmares relating to his children and wife; crying on occasions; suicidal thoughts; feelings of significant depression; interference with activities, such as running, golf, walking; spending time ruminating; difficulty undertaking domestic chores; a dislike of going into crowded and busy situations; struggling to mow the lawns, and missing the enjoyment of work. Dr Strauss also obtained a history of the treatment provided by Dr Mocellin and a psychologist. At the time when Dr Strauss first examined the plaintiff, it does not appear that he had the reports of the neurologists, and indeed, very little medical material, although, he had a report from Dr Mocellin which I assume is the report I have summarised above. Dr Strauss considered that the plaintiff had become moderately severely depressed. He considered that his psychiatric condition was stable, and he also considered that he needed to continue with his treatment for at least the next six to twelve months.
[32] PCB 118-127
[33] PCB 128-138
45On the second occasion that Dr Strauss examined the plaintiff he recorded how the plaintiff had progressed since he last examined him. Again, he recorded a long account of his progress which I will briefly summarise: no improvement since he stopped working; wakes with a feeling of a hangover and loss of energy; often sleeps poorly; upsetting dreams about his poor intimate relationship with his wife and having let his family down; often feeling a sense of loss relevant to work; waking feeling distressed after nightmares which are always negative; continuing headaches; breathing relieved using Ventolin; the need for painkilling medication to treat headaches; crying sometimes when he is alone; having suicidal thoughts; feelings of embarrassment and shame; loss of memory and concentration with forgetfulness; struggling to organise things domestically; intermittent anxiety attacks and fluctuating energy levels. Dr Strauss considered that the plaintiff was suffering Major Depression with elements of traumatisation. Although he does not appear to have addressed the questions relating to prognosis and treatment, the very thrust of the opinion and the way he characterised his diagnosis lends itself to the conclusion that the plaintiff will be plagued by that psychiatric condition at least for the foreseeable future.
46Dr Strauss considered that the plaintiff was totally and permanently incapacitated for work with the Metropolitan Fire Brigade and considered that his chances of working in any other area were extremely limited. I think that amounts to an expression of opinion that the plaintiff is not capable of engaging in suitable employment.
47Associate Professor Shashjit Varma, consultant psychiatrist, examined the plaintiff for the defendant on 25 October 2021. He provided a report dated 4 November 2021.[34] Dr Varma recorded a very long history of the symptoms of which the plaintiff complained which I will summarise briefly: persistent headache; vomiting; worsening headache on exertion; dizziness; the development of postural hypotension; difficulty playing social games of sport because of vestibular problems and the onset of dizziness and headache; feeling hung over all of the time; pacing in the house; having a horrible social life, and ideas of hopelessness and worthlessness. He also obtained a history of the plaintiff’s work since the chemical fires and some history of the treatment which he had obtained. Associate Professor Varma described that the purpose of his examination of the plaintiff was to advise the insurance agent to decide whether the plaintiff was entitled to ongoing weekly payments. For that purpose he was provided with a report of CAC comprising a 130-week vocational assessment report dated 24 May 2021. It was in that context that he considered that the plaintiff has suffered constant headache, poor cognitive functioning, the development of tinnitus, loss of balance on exertion and secondary anxiety and depression. He noted that the plaintiff had received treatment from a number of medical practitioners and had undertaken a post-traumatic stress disorder course and was being treated by a psychiatrist, a psychologist, a neurologist and a physician. I assume he was referring to Dr Mocellin, Associate Professor Hand and Dr Hamer, although, a number of other medical practitioners are referred to in the medical reports, who have not provided reports in this proceeding, so I am not entirely certain to whom Associate Professor Varma was making reference, although that is probably immaterial. He considered that the plaintiff was suffering from a Chronic Adjustment Disorder secondary to work-related exposure to toxic fumes and a chronic headache.
[34] DCB 15-24
48Associate Professor Varma was emphatic in his opinion that the plaintiff could not return to work with the fire brigade because of a constant feeling of anxiety, depression, low self-esteem, self-confidence, ideas of hopelessness and the effect on his cognitive functioning. He was equally emphatic in his opinion that the plaintiff has no capacity “whatsoever” at the time he examined him, for suitable or modified duties.
Identification of the injuries
49I do not accept the defendant’s submission that the injuries suffered by the plaintiff have not been sufficiently identified.
50It is tolerably clear to me that Associate Professor Hand was treating the plaintiff for a headache condition. In his last report, from which I extracted a quote, it is clear that he was referring only to symptoms relating to the plaintiff’s headache condition. That is the injury suffered by the plaintiff, and additionally, an opinion shared by Associate Professor Chambers, Dr Seneviratne and Professor Cook. Essentially, they worked off a similar history provided by the plaintiff, and an identification of similar symptoms in reaching their conclusions on diagnosis. The only practitioner who departed somewhat from the firmness of that diagnosis is Dr Seneviratne, but not as to diagnosis, but rather that he considered that the plaintiff was predominantly suffering from psychological injuries and possibly the development of migraine headaches.
51It is also tolerably clear to me that Dr Mocellin, Dr Strauss and Associate Professor Varma diagnosed that the plaintiff was suffering from a mental behavioural disturbance or disorder. Essentially, they worked off a similar history provided by the plaintiff and an identification of similar symptoms in reaching their conclusions on diagnosis. The fact that their diagnoses vary, for example Dr Mocellin diagnosed a Post-Traumatic Stress Disorder, Dr Strauss a moderately severe depression and Associate Professor Varma diagnosed a Chronic Adjustment Disorder, is not material because what they have diagnosed are psychiatric conditions emanating from the same root cause. This clearly falls within what the legislature had in mind, that it was for the plaintiff to prove a mental behavioural disturbance or disorder, without the necessity to have precision and unanimity amongst the doctors who diagnosed the psychiatric condition.
Permanency
52The defendant appeared to me to concentrate mostly on the opinion of Associate Professor Hand in support of its submission that both the diagnosed condition relevant to the physical injury and the consequences were not permanent. The fact that Associate Professor Hand expressed some optimism that the plaintiff would obtain a measure of recovery was clearly not borne out in the end, and that is evident by the flavour of his opinion in his last report. In any event, that optimism was not shared by Associate Professor Chambers, Dr Seneviratne nor Professor Cook.
53I think it is very plain that the neurologists and the psychiatrists have approached an analysis of the plaintiff’s complaints of physical injury and psychiatric injury on the basis that not only are the injuries capable of diagnosis, but that the prognosis is for persistence with no respite from the injuries or their symptoms for the foreseeable future.
Disentangling
54I do not propose to repeat my summary of the opinions of the neurologists and the psychiatrists. It is plain from my summary of their evidence that when they approached the issue of whether the injury as relevant to their expertise and the consequences of that injury would incapacitate the plaintiff for suitable employment, they undertook disentangling and expressed their opinions directly and relevantly to either the physical injury and the impairment caused by it and the psychiatric injury and the impairment caused by it. I do not consider that there is anything in the submission made by the defendant that disentangling is called for.
Range
55The defendant submitted that if the plaintiff was able to satisfy me relevant to the identification of the injury, permanency, and disentangling, then none of the consequences of the impairment were “serious” in the context of the physical injury nor “severe” in the context of the psychiatric injury. I disagree, and will demonstrate my reasoning in this respect below.
The Plaintiff’s evidence
56I propose to determine whether the plaintiff has satisfied the test relevant to loss of earning capacity, and for that purpose I propose to only summarise the plaintiff’s evidence relevant to his return to work, and his evidence relevant to whether he believes he has any capacity for any work.
57The plaintiff returned to work following the chemical fires, and continued working except for the following periods – he was absent from his work from 22 October to 4 December 2018, and then from 23 January to 3 May 2019, and then he ceased work altogether on 20 April 2020 and has not returned to work since.
58The plaintiff referred to the impact on his capacity to work in both of his affidavits, and in particular, in his second affidavit. The picture painted in his second affidavit is of significant interference in his capacity to work, and also in his capacity to engage in social, domestic and recreational pursuits. I was left with the strong impression that the plaintiff was steadily reduced to being able to engage in very little in those respects, and that is confirmed in the histories he provided to the medical practitioners who treated him and who examined him on a medico-legal basis. Very importantly, that is also confirmed by the opinions they have formed of the gravity of the plaintiff’s physical injury and his psychiatric injury and the consequences which they accept have resulted from the plaintiff incurring those injuries.
59The defendant sought to obtain some benefit from the fact that the plaintiff is involved in a family business known as HEAT Kids. It referred to two of the plaintiff’s taxation returns for the years ending 30 June 2018 and 30 June 2021. The taxation return for the year ending 30 June 2018 is for the Heat Team Building Unit Trust. It discloses, among other things, income of $11,550 and a net loss of $70,795. The taxation return for the year ending 30 June 2021 is also for the Trust and discloses income of $213,931 and a net loss of $27,599. The defendant submitted that the taxation returns demonstrate an improved income between 2018 and 2021, and clearly that is the case.
60On the basis of the taxation returns, and the cross-examination of the plaintiff relevant to the business, the defendant submitted that the plaintiff has been working for the business, and by inference, the increase in income is either due, or partially so, to the work he undertakes for the business. In the plaintiff’s second affidavit, he referred to the fact that as his capacity for work reduced, his wife assumed more of the responsibilities for the business, and the business employed people to perform work that he would otherwise have performed himself. There is reference in the schedule of expenses in the 2021 taxation return of expenses for contractors, subcontractors and commission expenses of $44,692 and a reference to all other expenses of $64,480. There is no breakdown of how those two figures are made up and calculated, and whether they represent payment to the other persons employed to perform work which the plaintiff would otherwise have performed himself.
61Furthermore, the plaintiff said that his wife’s business, Moco Marketing, is run through the Trust, and the income from her business is included in the business income and expenses in the 2021 taxation return. He added that although it appears that the 2021 taxation return relates to HEAT Kids, that her business is run through the Trust. The plaintiff was unable to say how much of the income referred to in the 2021 taxation return was relevant to Heat Kids and Moco Marketing. Nor was he able to say how much of the income earned represented the work he performed for Heat Kids.
62I accept the plaintiff’s evidence that he performed some work for the business subsequent to the chemical fires, but as time progressed and his physical injury and psychiatric injury worsened, that his wife effectively performed a greater level of work in the business, and that other persons were taken on to perform work which the plaintiff would otherwise have performed himself. I accept that he has made efforts to continue working in the business, but that they are rather modest and are not a demonstration of a capacity to work in any of the jobs submitted by the defendant as being suitable employment.
63I think there is a lot in the submission made in reply by the plaintiff that the bare nature of the taxation returns do not paint a picture of the extent to which the plaintiff was performing work in the business. The plaintiff submitted that in the absence of the books of the business, and other documentary evidence raised by the business, that it is simply speculative to suggest that the taxation returns demonstrate anything much at all relevant to the plaintiff. I agree. Furthermore, the plaintiff submitted that the taxation returns were enclosed in the Defendant’s Court Book which was served the evening before the application commenced before me, and it was then that the defendant gave some notice of its reliance upon the taxation returns without seeking any other discovery from the plaintiff to understand anything more about the business than the bare disclosure in the taxation returns.
64Under cross-examination, it was put to the plaintiff that he has simply decided that he will not work again as if that is unrelated to any incapacity resulting from the physical injury and/or the psychiatric injury. The defendant referred the plaintiff to paragraph 97 of his second affidavit in which the plaintiff unequivocally stated that there is no way that he can work. I accept the plaintiff’s evidence that he has decided that he will not work again, and I accept that there is a sound basis for him coming to that conclusion. His affidavits resonate with a persisting serious problem resulting from the physical injury and the psychiatric injury which have reduced him to a level of functioning which I accept has seriously impinged upon his capacity to work. I am fortified in reaching that conclusion because the medical evidence appears to me to be all one way and supportive of the conclusion reached by the plaintiff.
65Under cross-examination, the plaintiff was taken to the CAC vocational assessment, and in particular, to the assessment made of him by the person who made the assessment, and to what transferable skills he is said to possess and whether he could return to work as a recreational coordinator, program or project administrator, training and development officer or community officer. The vocational assessment sets out a description of each of those jobs, the duties involved, the psychological demands involved and the income that can be earned by someone engaging in those jobs full time. The plaintiff said that he could not perform the duties in any of those jobs.
Disposition
66If the plaintiff is able to establish serious injury on the basis of loss of earning capacity, then it follows that the plaintiff will obtain leave to bring a proceeding at common law for both pain and suffering and loss of earning capacity.[35]
[35] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
67I accept that the plaintiff is a creditworthy and reliable witness. I unhesitatingly accept all of his evidence that he suffered a physical injury and a psychiatric injury, and that the description he has given in his affidavits and the histories recorded by the doctors are reasonably accurate in demonstrating the decline in his state of health to the point that he has been brought to, which is that he is incapacitated for suitable employment.
68I prefer the evidence of Associate Professor Hand. Although he did not express an opinion relevant to the plaintiff’s capacity for suitable employment, I think it is inherent in the flavour of his opinion overall that the plaintiff is in a dire state of health. That, coupled with the opinion of Professor Cook, persuades me that the plaintiff is in effect totally and permanently incapacitated for his pre-injury work with the Metropolitan Fire Brigade and for suitable employment. I prefer their opinions to that of Dr Seneviratne that the plaintiff has some capacity to return to work. I also prefer their opinions to that of Dr Slesenger and Dr Poppenbeek for reasons which are now apparent because of the shortcomings in the material which they considered in the expression of their opinions concerning the plaintiff’s capacity to return to suitable employment, and the material upon which their opinions were based.
69I prefer the opinions of Dr Strauss and Associate Professor Varma, who essentially consider that the plaintiff has no realistic capacity to return to any work, and therefore, has no capacity for suitable employment.
70I am satisfied that the headache condition is serious when judged by comparison with other cases in the range of possible impairments or losses of a body function and can be fairly described as being more than significant or marked and as being at least very considerable.
71I am satisfied that the mental or behavioural disturbance or disorder is severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders and can fairly be described as being more than serious to the extent of being severe.
72I will grant the plaintiff leave to bring a proceeding at common law for both the physical injury and the psychiatric injury.
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