Donevski v Rodrigues and Transport Accident Commission
[2015] VCC 459
•1 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-08-00296
| NOVE DONEVSKI | Plaintiff |
| v | |
| LEONARDO RODRIGUES | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 23 and 24 March 2015 | |
DATE OF JUDGMENT: | 1 May 2015 | |
CASE MAY BE CITED AS: | Donevski v Rodrigues & Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 459 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychiatric injury – Adjustment Disorder with Depressed Mood – aggravation of Chronic Post-Traumatic Stress Disorder – Panic Disorder – whether or not the consequences are “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for serious injury in respect of psychiatric injury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Dixon QC with Ms K Popova | Belleli King & Associates |
| For the Defendants | Mr J Gorton QC with Ms C Spitaleri | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 23 January 2008. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for psychiatric injuries suffered by him arising out of the transport accident which occurred on 10 May 2001 (“the said date”).
2 Section 93(6) of the Act provides a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) …
(b) …
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The plaintiff in this application seeks certification for serious injury as a “serious long-term severe mental or behavioural disturbance or disorder”.
5 A serious injury under s93(17)(c) requires the level of impairment to be “severe”.[1]
[1]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 846
6 The plaintiff swore and relied upon four affidavits dated 2 May 2012, 16 April 2013, 31 October 2014 and 16 March 2015. There was no affidavit material from the plaintiff’s wife or family members. The plaintiff gave evidence and he was cross-examined.
7 The plaintiff and the defendants relied upon medical reports and other material which were tendered during the course of the proceeding. I have read all the tendered medical material.
8 The following documentation was tendered in the proceeding:
· Exhibit P1 – a bundle of affidavits
· Exhibit P2 – Copy of the Order of the Magistrates’ Court made 15 May 2014
· Exhibit P3 – the Plaintiff’s Court Book (“PCB”), pages 5-138 inclusive and pages 149-161.5 inclusive
· Exhibit D1 – Surveillance DVD of 5 April 2013
· Exhibit D2 – Surveillance DVD of 5 April 2013
· Exhibit D3 – Affidavit of Lee Horton dated 23 March 2015
· Exhibit D4 – Clinical notes of Dr Glowinski dated between 18 August 2000 and 4 July 2001
· Exhibit D5 – The Defendants’ Court Book (“DCB”), pages 1-6 inclusive, pages 16-21 inclusive, pages 29-47 inclusive, pages 56, 58, 63, 65, 76, 77, 78, 84, 96, pages 87 and 88, pages 184-189, pages 221-225 inclusive and pages 233-252 inclusive
· Exhibit D6 – PCB, pages 139-148 inclusive and pages 164-167 inclusive.
9 The issues in this application were outlined by Mr Gorton QC, for the defendants, as follows:
(i) To what extent did the transport accident aggravate or make the plaintiff’s psychiatric condition worse?
(ii) The credibility of the plaintiff.
10 Mr Gorton said that both of these issues were intertwined.[2]
[2]Transcript (“T”) 38
11 In his closing submissions, Mr Gorton stated that the claim by the plaintiff was a paragraph (c) claim only. He submitted that it was either a claim that was exaggerated by the plaintiff or a Pain Disorder. The defendants’ position was that if it was a Pain Disorder, then it existed before the transport accident the subject of this application.
12 Mr Gorton further submitted that the plaintiff had failed to establish the extent to which any Pain Disorder had been made worse by the transport accident.
13 Mr Gorton submitted that the plaintiff had failed to establish that the transport accident had either caused or increased the level of Post-Traumatic Stress Disorder, Depression or an anxiety-type basket of symptoms in this application. The final submission made by Mr Gorton, on behalf of the defendants, was that the plaintiff had failed to prove that the condition of panic attacks were attributable to the transport accident. In the alternative, if the panic attacks were attributable to the transport accident, then they were not “severe” within the meaning of the legislation.[3]
[3]T202
The Plaintiff’s background
14 The plaintiff was born in Macedonia in 1951. He is now sixty-three years old.[4] The plaintiff migrated to Australia in 1966.[5]
[4]PCB 5
[5]PCB 13
15 The plaintiff is a married man and lives with his wife and three daughters aged thirty-three, thirty-two and twenty-three.[6]
[6]PCB 13
16 The plaintiff has been in receipt of the Disability Support Pension since 1994.
17 The plaintiff had completed his formal education at age fourteen. He worked at Continental Pleating for a period of five years. He then changed his employment to Australian Glass Manufacturers, where he worked for a period of twelve years.[7]
[7]PCB 14
18 In the period 1985 to 1999, the plaintiff worked for Smorgon Fibre Containers. In 1987, the plaintiff was injured, hurting his back. He was able to return to work, and remained at his place of employment until 1989, when the factory closed down. He has not worked since that time. The plaintiff became a Disability Support Pensioner in 1995, and has remained on that Disability Support Pension until the present day.[8]
[8]T120
19 In 2003, the plaintiff instituted proceedings under the Accident Compensation Act against his employer, Fibre Containers Pty Ltd, for compensation for Permanent Disability.[9] The claim for compensation by the plaintiff against his former employers was conducted by solicitors other than the solicitors on the record in this application for the transport accident. The accident compensation claim against his former employers was finalised on 15 May 2014 by an Order made in the Magistrates’ Court in favour of the plaintiff.[10]
[9]DCB 221
[10]Exhibit P2 and DCB 222
20 The plaintiff had been attending his general practitioner, Dr Glowinski, prior to the transport accident on the said date. Dr Glowinski had been treating the plaintiff from the time of his industrial accident in 1987 to 1989 until the time of the hearing in this case.[11]
[11]PCB 149
21 The progress notes for the plaintiff prepared by Dr Glowinski for the date of 18 August 2000 diagnosed the plaintiff as suffering from spondylosis of the cervical and lumbar spine.
22 In the period between 18 August 2000 and 10 May 2001 (the date of the transport accident), the plaintiff attended on Dr Glowinski on no less than ten occasions. On each of those occasions, the plaintiff was prescribed various medications, including Panadeine Forte, Celebrex, Panamax, Ducene, Endep and Zantac.[12]
[12]Exhibit D4
23 It is clear from the progress notes and records of Dr Glowinski that the plaintiff had significant difficulties with pain and symptoms in his neck and back prior to the transport accident the subject of this application.
24 The plaintiff has made no claim for serious injury certification relating to physical injury in this case.
25 In a report prepared by Dr Glowinski dated 17 June 2001, some one month after the accident the subject of this application, Dr Glowinski stated as follows:
“Regarding psychological sequelae– Yes I think Mr. Donevski has suffered psychological sequelae to his chronic pain and unemployed status, but these are no more than I would expect from someone in his situation. He suffers from low-grade chronic depression giving him chronic insomnia and restless sleep and his sleep is also aggravated by chronic pain. His sleep disturbance is contributing to both his depression and to his general lethargy.”[13]
[13]PCB 151
26 It is clear from this report that the plaintiff’s general practitioner, Dr Glowinski, did not attribute any of the psychological or psychiatric reaction the plaintiff was suffering to the transport accident which occurred on the said date.[14]
[14]PCB 151
The transport accident involving the Plaintiff
27 The plaintiff described the transport accident in his affidavit dated 2 May 2012 in the following terms:
“… I was involved in a transport accident on the 10th of May 2001.
… the accident occurred when I was driving my vehicle, with my daughter Dianna Donevski who was a passenger. I stopped my vehicle at a crossing. I was struck from behind, twice by another vehicle. The impact pushed my car forward, a fair distance.
… I collided into the steering wheel, the driver’s door, and with my daughter. I also hit my head on the edge between a windscreen and the roof.”[15]
[15]PCB 5
28 In his report dated 25 March 2002, Dr Glowinski states as follows:
“Mr Donevski came to see me on 10th May 2001 following a rear end collision when he was stationary in his car. He was wearing a seatbelt but he hit the steering wheel with his chest. His hands were on the wheel and were torn off, so he was certainly hit with considerable force.”[16]
[16]PCB 152
29 In that report, and subsequent reports, the plaintiff has not made any complaint to Dr Glowinski, nor has Dr Glowinski diagnosed any psychological or psychiatric sequelae arising from the transport accident until June of 2004, when Dr Glowinski refers the plaintiff to Dr Kaplan, psychiatrist.[17]
[17]PCB 21
30 On 14 May 2001, the plaintiff completed and submitted a Claim for Compensation under the Act.[18] In that Claim Form, the plaintiff claimed that the injuries he received as a result of the transport accident were lower back pain, neck pain and shoulder pain. There was no reference to any psychological or psychiatric claim arising out of the transport accident. I note in that same Claim Form, the plaintiff denied that he had suffered any previous psychological or psychiatric condition, or received treatment before the transport accident.[19]
[18]DCB 184-189
[19]DCB 186
31 The defendants concede that the transport accident did occur on the said date. The defendant contests the issue that the plaintiff has suffered a psychiatric or psychological condition arising out of the transport accident.
The Plaintiff’s medical treatment after the transport accident
Dr L Glowinski
32 The plaintiff gave evidence that he attended his general practitioner, Dr Glowinski, on the day of the transport accident. In his report dated 25 March 2012, Dr Glowinski outlines the complaints made by the plaintiff and the treatments given to him. The treatments are all relating to physical injury arising from the transport accident.
33 In that report, Dr Glowinski states that he referred the plaintiff to Dr Alex Stockman, rheumatologist, on 15 May 2001.[20] The date of this referral to Dr Stockman is difficult to reconcile with the report prepared by Dr Stockman dated 28 June 2001, where he says as follows:
“Thank you for asking me to review this man whom I saw on 28 June 2001. As you know, I saw him nine months ago with longstanding neck, left shoulder and low back pain with radiation down both legs. He stated that after the visit his condition plateaued, and the pain was controlled with two Panadeine Forte and two Panamax per day. However, after his motor car accident in May, his symptoms have worsened considerably. Apart from headaches, there are no new pains. … .”[21]
[20]PCB 152
[21]PCB 119
34 It is clear from that report that the plaintiff was suffering considerable physical injuries to his neck and back prior to the transport accident on the said date.
35 In the period between 10 May 2001 and 12 December 2002, the plaintiff attended upon Dr Glowinski on no less than fifty-five occasions.[22] In that same period, the plaintiff was treated by Dr Stockman, rheumatologist, by the prescription of Panadeine Forte and Panamax.
[22]PCB 159
Professor Robert Helm
36 The plaintiff was also treated by Professor Robert Helm, neurologist. In his first report dated 21 November 2001, Professor Helm took a history from the plaintiff that he was depressed and slept poorly, and was crying and had trouble concentrating.
37 Dr Helm was treating the plaintiff for the physical injuries, in particular relating to his neck complaints. Professor Helm raised the possibility of referring the plaintiff to the Barbara Walker Centre for Pain Management at St Vincent’s Hospital at that time.[23]
[23]PCB 127-128
38 Professor Helm, in his report dated 6 December 2001, noted that the plaintiff had no past history of previous neck pain[24]. This statement is clearly incorrect, based on the other medical evidence in this case. Dr Stockman and the general practitioner, Dr Glowinski, had previously treated the plaintiff for neck complaints and injury prior to the transport accident.
[24]PCB 129
39 In his final report, Professor Helm, in September 2010, stated that he had referred the plaintiff to the Barbara Walker Centre for Pain Management and that the plaintiff had been treated there from April 2002 to May 2003 without observable improvement.
40 In his reports, Professor Helm does not refer to any symptoms or history relating to the industrial accident occurring in the period 1987 to 1989. Professor Helm stated there was no obvious cause demonstrated on repeated imaging, and that the plaintiff had failed to respond to conservative treatments.[25] It is clear that Professor Helm had a limited history from the plaintiff, and Professor Helm’s concentration was on the physical injuries, not the psychiatric aspects of this claim.
[25]PCB 138
41 Professor Helm has not seen the plaintiff since September of 2010. For these reasons, Professor Helm’s reports are of little assistance to the Court in the determination of the issue in dispute in this case.
42 The plaintiff’s case is that since the transport accident in 2001, he has developed a Panic Disorder. In evidence, the plaintiff relied upon his attendance at the Emergency Department of the Sunshine Hospital on a number of occasions prior to him attending on Dr Kaplan, psychiatrist. In particular, the plaintiff attended on 24 March 2003, presenting with symptoms of dizziness and severe nausea.[26]
[26]DCB 56 and 63
43 The plaintiff attended again at the Emergency Department of the Sunshine Hospital on 14 December 2003 with complaints of left-sided chest pain.[27]
[27]DCB 58
44 On 28 March 2004, the plaintiff again returned to the Emergency Department of the Sunshine Hospital complaining of chest pain. At that time, an outpatient stress test was organised for him.[28]
[28]DCB 65 and 76
45 The plaintiff’s first attendance upon Dr Kaplan, psychiatrist, was on 1 June 2004.[29]
[29]PCB 21
46 After his first attendance on Dr Kaplan, the plaintiff presented at the Emergency Department of the Sunshine Hospital on 10 June 2004 with complaints of altered sensation to his face and shoulder, combined with left-sided chest pain.[30]
[30]DCB 78
47 The plaintiff further presented at the Emergency Department of the Sunshine Hospital on 17 July 2004 with chest pain.[31]
[31]DCB 84
48 It was submitted on behalf of the plaintiff that these attendances at the Emergency Department of the Sunshine Hospital were examples of panic attacks suffered by the plaintiff. The medical examinations performed at that time do not diagnose the plaintiff as suffering from panic attacks. The medical investigations were relating to physical complaints applicable to the nominated symptoms by the plaintiff.
49 I note that the first of the attendances at the Emergency Department of the Sunshine Hospital was almost two years after the transport accident the subject of this application. That attendance is only nine days after the plaintiff lodged a claim[32] for and swore an affidavit[33] in support of that claim for compensation for Permanent Disability arising from the industrial accident which occurred in 1987 and 1989. I do not accept that the attendance at the Emergency Department of the Sunshine Hospital can be properly be described as “panic attacks” suffered by the plaintiff as a result of the transport accident on the said date.
[32]DCB 221
[33]DCB 224
50 The coincidental timing of his claim against his previous employers readily confuses any attribution of the symptoms suffered by the plaintiff at that time to the transport accident.
51 The only other source of evidence of the plaintiff’s panic attacks comes from the plaintiff himself. He stated that he suffers from panic attacks when he is in shopping centres and places where people congregate, and that he has to leave the area. There was no supporting evidence from any members of the plaintiff’s family by way of affidavit or viva voce evidence in regard to the plaintiff suffering from a panic attack. Dr Kaplan has accepted the plaintiff’s history in relation to panic attacks and has been medicating him accordingly since that time. The medication prescribed by Dr Kaplan is Alprazolam.[34]
[34]PCB 20
Dr Nigel Strauss
52 Dr Nigel Strauss, consultant and occupational psychiatrist, prepared two reports dated 10 August 2004[35] and 4 May 2007.[36]
[35]PCB 98-108
[36]PCB 109-118
53 Dr Strauss’s first assessment was conducted on 10 August 2004. This was some two months after the plaintiff had commenced treatment under Dr Kaplan. Unfortunately, Dr Strauss did not have any report from Dr Kaplan at the time of his first assessment.
54 In his first report, Dr Strauss noted as follows:
“It is noted that Mr Donevski suffered an industrial accident many years ago and was left with intermittent neck and back pain as a consequence but as far as I could establish never had psychiatric or psychological treatment after his industrial accident. … .”[37]
[37]PCB 104
55 This observation by Dr Strauss is not consistent with the history given by the plaintiff to Dr Edward Cole, psychiatrist, in October 2006 that his psychiatric condition and panic disorder were as a result of the industrial accident in 1989.[38]
[38]DCB 235
56 Dr Strauss diagnosed the plaintiff as suffering from a Pain Disorder and Post-Traumatic Stress Disorder, with some Anxiety and Depression.[39]
[39]PCB 104
57 In his final reported dated 4 May 2007, Dr Strauss diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder, a Major Depression and obsessive compulsive symptoms. He also stated the plaintiff has a Panic Disorder and Pain Disorder.[40]
[40]PCB 114
58 Dr Strauss gives the following opinion:
“The motor vehicle accident was frightening and distressing for this man and he has suffered from a major psychological decompensation as a consequence. I believe that his situation has worsened since I last saw him and he now is a suicidal risk. He probably needs to see his psychiatrist more frequently and begin antidepressants again.
… He has developed some obsessive compulsive symptoms related to his anxiety. He has a panic disorder related to anxiety and he has a pain disorder which would account for much of his pain. This is a condition which is unconsciously based in my opinion from a psychological perspective and there is no evidence to suggest that he is deliberately or consciously over-exaggerating his problems. … .”[41]
[41]PCB 115
59 Dr Strauss then goes on to separate or allocate some part of the plaintiff’s psychological and psychiatric impairment to the industrial accident. Dr Strauss’s breakdown for the primary psychiatric impairment due to the transport accident is two-thirds, compared with one-third primary psychiatric impairment related to the industrial accident.[42] This assessment or division of the psychiatric symptomology for the plaintiff is not fully explained in Dr Strauss’s report.
[42]PCB 117
60 I note that Dr Strauss’s report is now over seven years’ old and consequently is of little support for the plaintiff in his application at this time.
Associate Professor Nick Paoletti
61 Professor Paoletti, psychiatrist, prepared a report dated 27 August 2014. Professor Paoletti had been provided with all the reports of psychiatrists, Dr Nigel Strauss, Dr Albert Kaplan, Dr Edward Cole, Dr Maxwell Gayner and Dr David Weissmann in relation to the psychiatric assessments made of the plaintiff.
62 Professor Paoletti noted that the plaintiff minimised the psychiatric component from the work-related injuries, stating in fact that he had no previous psychiatric history.[43]
[43]PCB 94
63 Professor Paoletti assessed the plaintiff as suffering from:
“1.Anxiety Disorder Not Otherwise Specified (DSM-IV 300.00) with elements of post-traumatic stress disorder, panic disorder, generalised anxiety and some obsessive-compulsive behaviour.
2.Depressive Disorder Not Otherwise Specified (DSM-IV 311), the symptoms being too long standing and severe to be regarded as an adjustment disorder.”[44]
[44]PCB 93
64 In Professor Paoletti’s opinion, the plaintiff’s psychiatric condition was appropriately allocated one-third attributable to the pre-existing psychiatric condition and two-thirds attributable to the psychiatric condition arising after the transport accident. Professor Paoletti’s opinion was that the family dynamics, particularly related to the plaintiff’s illness and that of his eldest daughter, with his wife in the role of carer for both, and another chronically unemployed daughter, are factors that would militate against any progress in the plaintiff’s psychiatric illness.
65 Based on the opinion of Professor Paoletti, I do not accept that the plaintiff has satisfied the test that the transport accident has had severe consequences for the plaintiff.
66 I note that Professor Paoletti referred to a report prepared by Dr David Weissmann dated 1 December 2009. Neither the defendants nor the plaintiff tendered this report as part of this case. I do not draw any inferences against either party in respect of the non-reliance or production of this report to the Court in this application.
Dr Albert Kaplan
67 Dr Albert Kaplan, psychiatrist, has treated the plaintiff from 1 June 2004 until the current time. The plaintiff submitted no less than twenty-five reports prepared by Dr Kaplan dated between 29 July 2004 and 27 February 2005. In the course of this application, Dr Kaplan gave evidence and was cross-examined.
68 The plaintiff has attended upon Dr Kaplan approximately once a month from June 2004 until the present day. Dr Kaplan, in his report dated 14 March 2005, took a history from the plaintiff that he had no past history of psychiatric illness. In that same report, the plaintiff stated that he had not made a claim for compensation in respect of the industrial accident which occurred in June 1989.[45]
[45]PCB 24
69 The plaintiff continued to tell Dr Kaplan, in his reports dated 10 September 2006[46] and 20 April 2009,[47] that he had made no claim for compensation for injuries arising from the industrial accident.
[46]PCB 35
[47]PCB 53
70 The history given by the plaintiff to Dr Kaplan over this extended period of treatment is incorrect when taking into account the claim made by the plaintiff against his employers for the injury arising out of the 1987 to 1989 industrial accident.
71 At the time of preparing his report dated 28 July 2014, Dr Kaplan had been given a copy of the report prepared by Dr E Cole dated 19 October 2006 and the report of Dr B Holwill, psychiatrist, dated 16 July 2013.[48]
[48]PCB 75
72 Dr Cole and Dr Holwill were the psychiatrists relied upon by the plaintiff in his industrial accident claim against Smorgan Fibre Limited, his employer in the industrial accident.
73 In that report, Dr Kaplan does not express an opinion on the impact of the industrial accident pre-existing psychiatric condition in relation to the psychiatric condition arising from the transport accident case. In his evidence, Dr Kaplan confirmed that he had been told by the plaintiff that the plaintiff had made no claim for compensation in respect to his WorkCover claim.[49]
[49]T153
74 Dr Kaplan agreed that the plaintiff had misled him about the WorkCover claim and his level of pain.[50]
[50]T170
75 Dr Kaplan accepted that the plaintiff had hid the WorkCover claim from him and the fact that he had been sent to other psychiatrists for assessment.[51]
[51]T181
76 Dr Kaplan agreed that the affidavit sworn by the plaintiff on 15 January 2003 set out far more severe pain and the extent of injury from the industrial accident.[52]
[52]T172
77 Dr Kaplan, in his evidence, maintained that the transport accident was the cause of the Panic Disorder and agoraphobia suffered by the plaintiff.[53] Dr Kaplan noted that the plaintiff had not received any psychiatric treatment prior to the transport accident.[54] Dr Kaplan’s opinion was that if the Plaintiff had Post-Traumatic Stress Disorder from the industrial accident he would be more vulnerable to suffering Post-Traumatic Stress Disorder from a future traumatic event.[55] Dr Kaplan confirmed his reports that the plaintiff was currently medicated with 3 milligrams of Alprazolam per day and 100 milligrams of Sertraline. The basis of Dr Kaplan’s treatment is supportive psychotherapy and the monitoring of the plaintiff’s psychotropic medications.
[53]T184
[54]T189
[55]T193
78 In all of the times and the sessions that Dr Kaplan had seen the plaintiff over the period of ten years, he had never seen the plaintiff suffer a panic attack. Dr Kaplan has not differentiated between the psychiatric condition of the plaintiff before the transport accident and the current psychiatric condition of the plaintiff. The reason for that is clear, in the sense that the plaintiff had “hidden” the psychiatric effects of the industrial accident from Dr Kaplan over the whole period of their therapeutic relationship.
79 I am unable to assess the degree of aggravation, which was caused by the transport accident in May of 2001 from the plaintiff’s pre-existing psychiatric condition and symptoms which resulted from his industrial accidents in 1987 and 1989. Dr Kaplan has clearly been unable to assist the Court in this regard. In his evidence, Dr Kaplan stated that he would only make a diagnosis of psychogenic pain if the organic cause for pain had been excluded.[56] In this case, there is ample evidence that the plaintiff has had an aggravation of a pre-existing degenerative change which has a physical cause for the pain that he complains about suffering. On the basis of Dr Kaplan’s evidence, the Pain Disorder diagnosis is excluded.
[56]T160
Dr Edward Cole
80 Dr Edward Cole, psychiatrist, assessed the plaintiff for the purposes of his industrial accident claim. He prepared a report dated 19 October 2006. This report was prepared for Tasiopoulos Lambros & Co, Solicitors acting on behalf of the plaintiff in his industrial accident claim.
81 The plaintiff gave Dr Cole a history of his industrial accident in the following terms:
“As a result of the fall he suffered from bruising in his back and right leg which had become caught in the ladder as he fell. There was a guillotine behind him and circular knives in front of him, so that if his leg had not been caught he would have been badly cut. He still hated to think about it.”[57]
[57]DCB 234
82 The plaintiff went on to give Dr Cole a history that he was worried about everything and anything. The plaintiff stated that he was depressed every day and that he felt like his life was not worth living and had thoughts of suicide. The plaintiff also stated:
“”He became panicky whenever he had to go out. He was frightened to cross metal bridges. He was even scared of the fan in the house when his girls put it on. He hated himself for this. He avoided crowds.”[58]
[58]DCB 235
83 The plaintiff did tell Dr Cole about the transport accident in 2001. His history in that regard recorded that he was involved in the transport accident which had the effect of aggravating his neck and back pain. The plaintiff gave no history of any psychiatric interference or exacerbation of psychiatric symptoms as a result of the transport accident to Dr Cole.
84 In 2006, Dr Cole diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of his industrial accident. He also noted that the plaintiff was suffering from a Post-Traumatic Stress Disorder as a result of the fall at work. Interestingly, Dr Cole noted that the psychiatric treatment the plaintiff was receiving from Dr Kaplan at that time – that is 2006 – was appropriate and necessary. The part that Dr Cole did not know was that Dr Kaplan thought all of the psychiatric symptoms related to the transport accident, whilst Dr Cole was assessing the psychiatric responses as being caused by the industrial accident. This arose from the differential and conflicting histories given to the respective psychiatrists by the plaintiff.
Dr Brendan Holwill
85 The plaintiff was assessed by Dr Brendan Holwill, consultant psychiatrist, who prepared a report dated 16 July 2013.[59] This report was prepared for Tasiopoulos Lambros & Co, Solicitors acting on behalf of the plaintiff in his industrial accident claim.
[59]DCB 239-246
86 The plaintiff gave Dr Holwill the following history:
“Whilst he was a machine operator he suffered two injuries. The first injury occurred in or about 1988. He told me that the machine he was operating jammed. He stopped the machine and climbed on top of it to clear rollers of paper. Either side of the rollers were guillotine cutters. Whilst he was attempting to clear the jammed paper, for some reason the leading hand restarted the machine. Mr Donevski feared that he would be “cut to pieces” and threw himself backwards. He lost his footing on the metal ladder on which he had climbed, and fell backwards striking his back and twisting his right foot. He fell between one and two metres. There was no loss of consciousness. He then jumped off the machine fearing further injury.”[60]
[60]DCB 239-240
87 The plaintiff also gave a history to Dr Holwill of a second accident in 1989 where he was clearing cardboard material from a machine and, in doing so, had been thrown backwards, striking his lower back. The plaintiff gave a detailed history of symptoms of a physical nature to the lower back, neck and to his legs to Dr Holwill. He detailed at length the list of medications that he was taking as a result of the physical injuries.
88 Dr Holwill also took a history from the plaintiff that he had been involved in a transport accident in 2001. The plaintiff gave Dr Holwill a history that as a result of the impact from the car, there was an aggravation of his low-back pain.[61] The plaintiff did not tell Dr Holwill that his psychiatric symptoms or Panic Disorder had either increased or commenced at that time. Based on the information given to him, Dr Holwill diagnosed that the plaintiff was suffering from classical panic attacks. He noted that the plaintiff had these panic attacks which were more likely to occur when he was out of his home, particularly in a crowded area such as a shopping centre. The plaintiff had stated that, on occasion, he had lost consciousness as a result of the panic attacks. The plaintiff told Dr Holwill that he was prescribed Alprazolam by Dr Glowinski and that these tended to prevent the panic attacks, but not completely. He also noted that the plaintiff had told him that he had intrusive thoughts of the workplace, particularly the injury when he was on top of the machine.[62]
[61]DCB 241
[62]DCB 242
89 The plaintiff also gave a history to Dr Holwill of the circumstances of the impact of the transport accident on his eldest daughter, setting out that she was now in receipt of a Disability Support Pension.
90 In his report, Dr Holwill was of the view that the plaintiff would benefit from active psychiatric treatment.[63] It is to be noted that at this very time of the assessment by Dr Holwill, that the plaintiff was receiving active psychiatric treatment by Dr Kaplan. Clearly, the plaintiff did not tell Dr Holwill about the treatment he was receiving from Dr Kaplan.
[63]DCB 244
91 Dr Holwill’s opinion was:
“… his physical and psychiatric injuries are attributable to the workplace injuries, with some aggravation as a result of the motor vehicle accident. His psychiatric injuries, which are very largely attributable to the industrial injuries, would alone prevent him from returning to any form of meaningful employment.
…
… I do not believe there is any major ongoing aggravation of his psychiatric state due to the motor vehicle accident.”[64]
[64]DCB 244-245
92 In conclusion, the reports of Dr Cole and Dr Holwill clearly lay the cause of the plaintiff’s psychiatric consequences and symptoms to be predominantly caused by the industrial accident. This is based on the history that the plaintiff has given to each of those medical examiners. Dr Holwill clearly acknowledges that there would have been some aggravation to the plaintiff’s symptoms by the transport accident. I do not accept that the level of aggravation to the plaintiff’s psychiatric symptoms and consequences meets the statutory test for certification for serious injury.
The Plaintiff’s evidence
93 The plaintiff swore four affidavits dated 2 May 2012, 16 April 2013, 31 October 2014 and 16 March 2015. The plaintiff also gave evidence and was cross-examined during the course of this application. At the time of the transport accident, the plaintiff was in receipt of the Disability Support Pension. The plaintiff, in his four affidavits and in his evidence, attributed all of his psychiatric symptoms and difficulties to the transport accident. The plaintiff, in his evidence, continually attempted to minimise any impact on his wellbeing or welfare as a result of the industrial accident in 1987 to 1989. In his evidence, he conceded that he had sworn the affidavit dated 15 January 2003.[65] Later in his evidence, he stated that the solicitor told him to “just mention the transport accident and no more details about it, let them find about it”.[66] The plaintiff stated that he had told Dr Kaplan about his WorkCover claim.[67] This is in direct conflict with the evidence of Dr Kaplan, who stated that the plaintiff had not told him about his WorkCover claim.[68]
[65]T114
[66]T122
[67]T124
[68]T153 and 170
94 The plaintiff set out all of the physical symptoms as a result of the transport accident, including back pain, neck pain, shoulder pain, leg pain and head pain. He also stated that he had suffered psychiatric injuries as a result of the transport accident. The plaintiff stated that after the transport accident in 2001, he ceased to enjoy life. This part of his evidence is in complete contrast to his history to the psychiatrists, Dr Cole and Dr Holwill, in respect to his industrial accident claim.
95 On the preponderance of the evidence in this case, it is clear that the plaintiff had been suffering the Post-Traumatic Stress Disorder symptoms and the Adjustment Disorder symptoms with Depressed Mood and Anxiety prior to the transport accident. In the period of time after the transport accident, in May 2001, the plaintiff has conducted two separate claims for compensation. The first claim is in relation to the industrial accidents going back to 1987 to 1989. The second claim is in relation to the transport accident on the said date. The plaintiff has engaged separate solicitors in respect of each of the claims. He has been assessed by different medical practitioners for the same sets of symptoms in respect of each claim. He has attributed the symptoms and conditions to the accident in respect of which he is making a claim, and vice versa. The state of the evidence from the plaintiff, both written and oral, is such that it is not possible to determine the level of psychiatric symptoms and difficulties which follow from the transport accident on the said date.
96 In cases of psychiatric injury, surveillance material is of very limited use. In this case, the defendants tendered two DVDs of surveillance film. They were exhibits ‘D1’ and ‘D2’. In exhibit ‘D2’, the plaintiff is filmed conducting shopping activities with his family. In the very early part of that exhibit, the plaintiff is seen lifting a “slab of drink bottles from a shopping trolley and placing them in the car”. In the course of the hearing, the following exchange took place:
HIS HONOUR:
Q:“You were able to lift all those bottles out of the bottom of the crate, weren’t you, and put them in the boot – in the back of the car?---
A:Which bottles are you talking about, Sir?
Q:All the bottles that you had in the supermarket. Bottles of water that are on the bottom?---
A:I did not lift up the bottles of water ... .”[69]
[69]T109, L19-25
97 The plaintiff had just seen the same surveillance film in Court shortly prior to answering that question and quickly volunteered something that was simply incorrect.
98 The plaintiff stated in evidence that he was fearful of traffic and it made him very apprehensive. In exhibit ‘D2’, the plaintiff was observed walking for approximately a total of three hours down busy roads, crossing intersections in the proximity of traffic on the roadway without any apparent concern or reaction from him.
99 I accept that filming of this nature is a short period of time in a full life of a person. I am mindful of the principles set out in Church v Echuca Regional Health,[70] where a proper and very careful analysis of surveillance needs to be undertaken before using that surveillance to adversely assess the plaintiff’s credit. In this case, each of the medical practitioners note that the plaintiff attends in a very depressed and “downtrodden manner”. The plaintiff himself presented as such in the proceedings. The plaintiff, when filmed, albeit only on that one day, being 9 April 2013, showed no signs of being afraid or in any way compromised by walking in close proximity to traffic and crossing the roadway where traffic was at intersections.
[70](2008) 20 VR 566
100 In conclusion, I was unable to disentangle the psychiatric and psychological symptoms and consequences that the plaintiff has suffered as a result of the transport accident from the plaintiff’s own evidence. His evidence was in contrast and conflict between the two claims, being the claim for the transport accident on the said date and the claim for the industrial accident back in 1987 to 1989. The symptoms and consequences that he spoke of were the same in each of them. The level of aggravation by the transport accident of any symptoms and consequences the plaintiff was suffering prior to the transport accident were difficult to properly identify and, thereafter, decide whether they satisfied the statutory test.
101 The fact that the plaintiff has, since the transport accident, been referred to a psychiatrist, Dr Kaplan, and that he has seen Dr Kaplan for a period of ten years, combined with the prescription of medication, is not, of itself, sufficient to satisfy the Court that the aggravation to the plaintiff’s psychiatric and psychological condition is “severe”. The treatment by Dr Kaplan did not commence until some three years after the transport accident. In the period of Dr Kaplan’s treatment, the plaintiff has conducted both the industrial accident claim and the transport accident claim.
102 Dr Kaplan, in the course of his treatment, requested that the plaintiff, his wife and his eldest daughter, the person in the car at the time of the transport accident, attend for a session of treatment. At that session, Dr Kaplan noted that it was revealing in demonstrating the interdependence between these three family members and their unconscious collusion in probably promoting the eldest daughter’s agoraphobia. The plaintiff’s wife and his eldest daughter provided confirmation to Dr Kaplan about the plaintiff’s anxiety, fearfulness and short temper symptoms, which they indicated had developed since the transport accident. Dr Kaplan’s assessment was that this condition had become well entrenched and this condition and the condition of the plaintiff’s eldest daughter’s agoraphobia probably, to some extent, fulfilled their dependency needs.[71] The interdependence of the plaintiff with his eldest daughter and other family members in what could be described as a “sick mode” adds further difficulty to disentangling the level of psychiatric and psychological symptoms and disabilities the plaintiff suffered as a result of the transport accident.
[71]PCB 30
Conclusion
103 I conclude that the level of psychiatric or psychological disorder suffered by the plaintiff as a result of the transport accident is not “severe” as required under the Act. The treatment regime for the plaintiff’s psychological complaints as set out by Dr Kaplan do not support a finding of serious injury. This is particularly so when taking into account the fact that the plaintiff has, during the course of Dr Kaplan’s treatment, conducted a separate claim for compensation in respect of an industrial accident setting out the same, or predominantly the same, set of symptoms and consequences in support of that claim.
104 The plaintiff’s application for serious injury certification for psychiatric and psychological disorder is dismissed.
105 I will hear the parties on costs.
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