Donohue v Finaid Pty Ltd
[2014] VCC 588
•16 May 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02933
| JANINE DONOHUE | Plaintiff |
| v | |
| FINAID PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 7 May 2014 | |
DATE OF JUDGMENT: | 16 May 2014 | |
CASE MAY BE CITED AS: | Donohue v Finaid Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 588 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – whether the plaintiff’s mental or behavioural disturbance or disorder was “severe” and “permanent” – consequence of the plaintiff’s injury.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to commence an action claiming damages for pain and suffering in respect of injuries suffered by her in the course of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Simon Parsons & Co |
| For the Defendant | Mr P Jewell SC with Ms M Tait | Minter Ellison |
HIS HONOUR:
1 Janine Donohue alleges that she suffered a mental or behavioural disturbance or disorder in the course of her employment with the defendant from about mid 2009 to March 2011. She seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of those injuries.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
5 The term “severe” is to be satisfied by reference to the consequence to Ms Donohue of any mental or behavioural disturbance or disorder when judged by comparison with other cases in the range of possible disturbances or disorders.[3]
[3]Section 134AB(38)(b) of the Act
6 A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.[4]
[4]Section 134AB(38)(d) of the Act
7 Ms Donohue claims, and the defendant disputes, that the pain and suffering consequence of her mental or behavioural disturbance or disorder is fairly described as being more than serious to the extent of being severe. In addition, the defendant denies that Ms Donohue’s current condition is permanent. These are the issues which fall to be determined by the Court in this application.
Background
8 Ms Donohue is aged sixty-three. She was brought up in the Heyfield area in Gippsland.
9 She left school after completing her Leaving Certificate in 1967. She has two adult children.
10 With the exception of short periods when her children were babies, she has worked continuously since leaving school. In the main, her work has been in retail. For three to four years, she managed the Heyfield TAB. For a time, she and her husband were dairy farmers in Gippsland and she participated in all aspects of work on that farm.
11 In 1998, Ms Donohue completed a Certificate III in a pharmacy assistant course and soon after, commenced work as a pharmacist/dispensary assistant at the Rosedale Pharmacy, where she worked for about two years. She performed similar duties at a pharmacy in Traralgon from that time until mid 2004. On 17 July 2004, she commenced work at the Heyfield Pharmacy with the defendant, performing similar duties. At that time, she was aged fifty-four.
12 On any view, Ms Donohue has an impressive work record.
13 Ms Donohue was employed by the defendant from July 2004 until March 2010, when she went off work in relation to the condition which is the subject of this application. She has not worked since.
14 Ms Donohue alleges that in the course of her employment with the defendant, she was exposed to frequent, recurring and ongoing episodes of anger and intimidatory behaviour towards her by her supervisor, a Mr Naidu. These episodes allegedly involved yelling, verbal abuse, repeated profanities and angry behaviour. The behaviour was unpredictable but occurred frequently, almost every time he came to the pharmacy. Other episodes occurred in the course of telephone conversations. The episodes frequently occurred in front of other staff and customers. She became increasingly stressed, anxious and uneasy whilst at work. She felt nervous and found it difficult to communicate with work colleagues, customers and with her supervisor.
15 Ms Donohue attended her general practitioner, Dr Ivanoff, in August 2009 and provided a history to him of the verbal abuse which she said had escalated over the previous three months. She was crying during the consultation. She does not appear to have received any specific treatment at that time.
16 On 6 January 2010, she re-attended at the medical centre. She saw both Dr Ivanoff and an intern, Dr Feng. The centre’s clinical notes indicate that she was diagnosed with depression at that time. The notes also refer to her excess consumption of alcohol, and that she was suffering from various symptoms relating to menopause.
17 On that occasion, she was prescribed the anti-depressant medication Effexor (also known as Venlafaxine).
18 The clinical notes relating to that attendance in January 2010 indicate that she “… has been on paroxetine for - five years”.[5] The parties agreed that paroxetine was also known as Aropax, and was another antidepressant medication.
[5]Plaintiff’s Court Book page 40
19 Ms Donohue continued to attend at the Heyfield Medical Clinic regularly after that time. She has seen several of the general practitioners at that clinic but principally Dr Ivanoff.
20 Ms Donohue was referred to a psychologist, Sue McDonald, in May 2011. Between May and September 2011, she attended for seven counselling sessions. Ms Donohue stated that she was not happy with the style of treatment provided by Ms McDonald and ceased attending. She made reference to being shown various cards and being asked to comment on them, which she did not find helped her condition.
21 In August 2013, Ms Donohue was referred to a psychiatrist, Dr Pamela Cooke. She continues to see Dr Cooke for treatment up to the present time, approximately monthly.
22 In September 2013, Ms Donohue was referred to Ned Tkalcevic, who is described in his report as a registered clinical psycho-therapist and an accredited clinical mental health social worker. She attended upon Mr Tkalcevic for about three months in 2013. She said he discussed little about her condition with her and in the end, she ceased seeing him. Mr Tkalcevic was not prepared to provide his services and render invoices to WorkCover in the manner that is usual in the case of treatment in respect of work related injuries. He required Ms Donohue to pay him and left it to her to seek reimbursement from WorkCover. WorkCover were slow in doing so and in the end, she ceased treatment from him, principally because she did not consider that he was assisting her condition.
23 Ms Donohue continues to reside in Heyfield, a relatively small town in Gippsland.
24 Clinical notes of the Heyfield Medical Centre relating to Ms Donohue were tendered. Entries in those notes of relevance to this application include:
(a) On 6 August 2009, a history taken by Dr Ivanoff was that Ms Donohue’s employer had been verbally abusive for the entire period of her employment and that this had escalated in the previous three months.
(b) On 6 January 2010, Ms Donohue was apparently seen by Dr Ivanoff in the presence of an intern, Dr Feng. The notes indicate that Ms Donohue had been on paroxetine/Aropax for four to five years at that time.
(c) On the same date, it was noted that she was abusing alcohol, that she drank every day and would continue to drink until she fell asleep. She was consuming around two bottles of wine or more a day. She had been drinking heavily for the last two years. It is noted that there were no specific triggers, but this had started off as social drinking. Work was noted as being stressful.
(d) On the same date, the notes indicate a decision to change her medication to venlafaxine/Effexor, another antidepressant. It was proposed that she undergo a four-week trial on Effexor “with two-four day washout period”.
(e) On 20 January 2010, Dr Ivanoff noted that her dosage of Effexor was 75 milligrams daily. The four-week trial previously referred to appears to have been continued until the present time.
(f) On 17 March 2011, Ms Donohue attended in relation to another alleged workplace incident when she was again verbally abused by her employer and was noted to be extremely upset and crying.
(g) On 4 April 2011, Ms Donohue’s dosage of Effexor was increased from 75 milligrams to 150 milligrams daily. On that date, Dr Christine Shih of the medical centre described her reason for contact as “depression”.
(h) On numerous dates that followed, Ms Donohue was noted to have attended with depression and being teary. She had anxiety symptoms (shakes) when going into town, to the supermarket et cetera.
(i) On 29 April 2011, there was a prescription added for Effexor in a dosage of 37.5 milligrams daily. It is not clear whether this is a reduction of the previously referred to dosages or an additional prescription.
(j) On 31 May 2011, Dr Ivanoff referred to Ms Donohue’s condition as one of “reactive anxiety/depression”.
(j) On 10 June 2011, it was noted that Ms Donohue had an appointment in Melbourne the following week, however did not have the confidence to attend that appointment and was experiencing anxiety and panic symptoms. She was “shaking ++++” which I interpret as severely.
(k) On the same date, it was noted that Ms Donohue was scheduled to travel to Thailand on 15 June 2011. The holiday had been organised and paid for in the previous November when she was still in employment. On that day, her dosage of Effexor is referred to. The 37.5-milligram capsule was changed to 75 milligrams. There is also reference to a 150-milligram dosage being changed to 225 milligrams daily. These references are somewhat confusing and probably deserved some clarification. Nevertheless, I accept that her dosage of Effexor was increased at that time.
(l) On the same date, it appears that Dr Ivanoff wrote to the psychologist, Ms McDonald, stating “We have maximised her Effexor dose …”
(m) On 23 August 2011, Dr Ivanoff noted that Ms Donohue was feeling better after her holiday and that she was happy to look for another job as a pharmacy assistant.
(n) On 12 December 2011, Dr Ivanoff noted that Ms Donohue was still quite depressed and had become socially avoidant, staying home and not answering the telephone. He again described her condition as reactive depression.
(o) On 1 March 2012, Dr Ivanoff noted that Ms Donohue had requested a change of psychologist and felt that she needed more assistance with her reactive anxiety/depression.
(p) On 30 March 2012, Dr Ivanoff noted that Ms Donohue had been having regular breakfasts with one of the locum pharmacists with whom she had worked at the Heyfield Pharmacy prior to March 2011. The employer had apparently contacted the locum and instructed him not to associate with Ms Donohue within the township of Heyfield.
(q) In mid 2012, it appears that Ms Donohue and her husband travelled as far as Bundaberg on a six-week caravanning holiday.
(r) There were no clinical notes tendered for the period post October 2012; however, a report from Dr Ivanoff dated 4 August 2013 indicates that he had continued to see her since that time. Ms Donohue’s evidence was that she is still seeing him regularly in relation to her depressive condition.
Diagnosis of injury
25 The defendant did not dispute that Ms Donohue was suffering from an Adjustment Disorder with Anxiety and Depressed Mood. The principal area of dispute between the parties is whether her condition is “severe” and/or “permanent”.
26 In August 2013, Dr Ivanoff described Ms Donohue’s condition as “alleged workplace verbal abuse, emotional harassment and bullying over a period of four years, leading to depression and anxiety”.[6] He thought that she suffered a severe exacerbation of pre-existing depression and generalised anxiety. He noted that she had been taking Effexor since January 2010 and Aropax for “at least the preceding ten years”.[7] Ms Donohue did not recall that she had been taking Aropax over that preceding period. She did recall that she had been prescribed Aropax in relation to menopausal problems, a considerable time earlier. She thought that this had occurred when she was aged about forty, that is, in about 1990. I think her recollection is likely to be inaccurate. The clinical note referred to above for 6 January 2010 was that she had been on Aropax for four to five years. Although this is somewhat different to the period suggested by Dr Ivanoff in his report, I think it likely that she had been prescribed Aropax for some period prior to January 2010. The exact period of such prescription is unknown.
[6]Plaintiff’s Court Book page 52
[7]Plaintiff’s Court Book page 55
27 Ms Donohue’s treating psychiatrist, Dr Cooke, considered that she was suffering from an Adjustment Disorder which was chronic, with a mixed picture of anxiety and depression. She noted that the onset of symptoms commenced in 2009 with a gradual onset of anxiety, loss of confidence, poor concentration, nightmares, poor sleep, low mood, loss of enjoyment in normal activities and hypervigilance. These have continued since.
28 Similar diagnoses were made by:
· Dr Entwisle, psychiatrist, who examined Ms Donohue at the request of the defendant in April 2011, January 2012, May 2013 and January 2014;
· Dr Adlard, psychiatrist, who examined Ms Donohue at the request of the defendant in August 2012; and
· Dr John Gill, psychiatrist, who examined Ms Donohue in March 2014 at the request of her solicitors.
29 I am satisfied that Ms Donohue has suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a consequence of events that occurred in the course of her employment with the defendant.
Consequence of injury
30 It was conceded by Senior Counsel for Ms Donohue that she had experienced pre-existing depression and had been treated previously with antidepressant medication. In short, the submissions on behalf of Ms Donohue were:
(a) Up until the escalation of verbal abuse and bullying in about mid 2009, Ms Donohue had been leading a normal lifestyle and performing responsible duties at the Heyfield Pharmacy and, prior to that, other pharmacies in Gippsland.
(b) Although she may have suffered from depression associated with menopause, this had not significantly interfered with her lifestyle and had not affected her ability to hold down responsible employment.
(c) Previously, she had enjoyed a full social life and enjoyed tending to her garden.
(d) When a comparison was made as to her condition prior to 2009 and post 2009, it could be seen that the prior problems were minor in comparison. There was, after 2009, significant interference with her daily life. She was unable to continue in employment.
(e) Her current condition had to be looked at in the context of her being prescribed high dosages of Effexor and Seroquel. Notwithstanding those medications, her lifestyle is vastly different to that previously led by her.
31 I accept those submissions.
32 Senior Counsel for the defendant conceded that Ms Donohue had suffered from an Adjustment Disorder with Anxiety and Depression, but did not concede that her current condition was either “severe” or “permanent”. It was submitted that Ms Donohue had shown some improvement as a consequence of two periods of consultations with two psychologists – Ms McDonald and Mr Tkalcevic. After relatively short periods of counselling by both those psychologists, Ms Donohue had chosen to terminate such treatment. Ms Donohue has been recently referred to a third psychologist, a Ms Gibson, who she has had difficulty arranging an appointment. I accept that Ms Donohue is intending to follow up that referral and is likely to be treated by way of counselling by Ms Gibson in the near future.
33 The defendant submits that, given that Ms Donohue displayed some improvement with earlier counselling, it is likely that improvement with further counselling will occur. The defendant submits that I ought not to be satisfied that Ms Donohue’s current condition is permanent.
34 I accept that Ms Donohue did suffer from a depressive condition of some sort prior to mid 2009. However, it was a condition that her general practitioner did not consider necessitated a referral for psychological counselling or referral to a treating psychiatrist. Further, it would appear that the condition and the level of medication she consumed was not such as to interfere significantly with her employment or lifestyle.
35 I accept that prior to mid 2009, Ms Donohue had developed a problem concerning excessive consumption of alcohol. It is not alleged by Ms Donohue that her problems in the workplace either caused or exacerbated that alcohol problem. However, I think it likely that her workplace problems would not have helped her attempts to reduce her alcohol consumption. In any event, it appears that, to a large extent, her alcohol problems have diminished since 2009. At one time recently, it appeared she had virtually ceased consuming alcohol. More recently, she indicated that she would consume a couple of glasses of wine each night and perhaps a little more on the weekends. Whilst these amounts might be considered by many to be excessive, I do not consider that it is Ms Donohue’s alcohol issues which are the cause of her problems the subject of this application or the cause of her inability to work. In considering the consequences of her injury, I think it appropriate to put the alcohol issue to one side. I do not consider it to be relevant.
36 Having heard Ms Donohue give evidence-in-chief and in cross-examination, and having read her affidavits sworn in December 2012 and April 2014, I am satisfied that the symptoms from which she suffers relating to her Adjustment Disorder include:
(a) Depressed mood;
(b) Anxiety in the form of loss of confidence and self-esteem, physically shaking at times, reluctance to leave her home, inability to drive for anything but the shortest of distances locally, and difficulty communicating with other people;
(c) Irritability;
(d) Reduced powers of concentration;
(e) Difficulty sleeping, with frequent nightmares;
(f) Reduced energy and motivation;
(g) Communication difficulties with her husband and virtual loss of libido and sexual relations between them.
37 I accept the defendant’s submission that there are some indications in the notes and/or reports of Ms McDonald and Mr Tkalcevic that, from time to time, there does appear to have been periods where improvement in her condition was observed. However, when the broader picture is looked at, I do not consider there has been any sustained period of improvement to the present time. As with most persons suffering from Depression and Anxiety, it is unlikely that each day or even each week will be the same in terms of level of symptoms. There are bound to have been better and worse periods since 2009.
38 Further, I consider that it is likely that the severity of symptoms suffered by Ms Donohue has been controlled, at least to an extent, by increased levels of antidepressant medication in the form of Effexor and Seroquel prescribed for her by Dr Cooke. In particular, in mid 2013, Dr Cooke increased her dosage of Effexor from 225 milligrams per day to 300 milligrams per day. I note this is four times the dosage that Dr Ivanoff had prescribed for her in January 2010.
39 In September 2013, Dr Cooke introduced Seroquel, hoping to improve Ms Donohue’s sleep. Improved sleep was reported but Ms Donohue continued to suffer from anxiety when out in public. She remained unmotivated. In November 2013, Ms Donohue was still waking in the middle of the night thinking of Mr Naidu’s treatment of her at work. Her anxiety has remained. She avoids going into the centre of country town in which she lives. She continues to lack confidence. A degree of improvement was reported to Dr Cooke in February 2014. Her sleep had improved to an extent and she reported that she was accomplishing more tasks during the day and exercising more. She still felt very anxious about going into Heyfield.
40 I consider that much of the stabilisation or even improvement in Ms Donohue’s condition is attributable to the increased dosages of antidepressant medication. I think it likely that her ability to function to the extent that she does is attributable in large part to that medication. Were it to cease, I consider it likely that her condition would deteriorate considerably.
41 Dr Cooke was of the view that although Ms Donohue’s mental state had improved, she remained “very symptomatic”.[8] She was hopeful that the limited improvement referred to was suggestive of Ms Donohue’s mental state stabilising. By that, I interpret Dr Cooke as saying that she was hopeful that Ms Donohue’s mental state would stabilise at its present level or thereabouts. I do not consider that Dr Cooke was predicting any further improvement in the foreseeable future. Indeed, Dr Cooke stated that the prognosis was guarded, pointing out that Ms Donohue had been symptomatic for four years and that she had become socially isolated during this time. It would be hard, she thought, for Ms Donohue to avoid triggers within her environment.
[8]Plaintiff’s Court Book page 103
42 When Dr Entwisle examined Ms Donohue in April 2011, he considered that she would not be able to return to work in her current circumstances and that her symptoms of anxiety impacted on her employment and daily activities.
43 By January 2012, Dr Entwisle considered that she was in partial remission and that her symptoms indicated that she had a capacity to return to her pre-injury duties, albeit with an alternative employer.
44 Dr Entwisle remained of a similar view in January 2014. At that time, Ms Donohue had outlined to him her general daily routine which he included in his report of 16 January 2014.[9] I shall not set out here the list of activities that Ms Donohue advised Dr Entwisle that constituted her daily routine. It suffices to say that the list of activities appear to me to be consistent with that of a person leading a quite abnormal lifestyle. They are consistent with the evidence given by Ms Donohue concerning her limited and sheltered lifestyle, her inability to mix in any normal way with other people, her reluctance to leave the house, and the other matters referred to above.
[9]Defendant’s Court Book page 16
45 Insofar as Dr Entwisle considers that those daily activities reflect a normal lifestyle, I disagree with him. It may well be that she had improved between 2011 and 2012, and possibly even to some extent thereafter. However, I do not accept that this indicates that she has improved to any great extent when all the evidence is looked at.
46 I accept Ms Donohue’s evidence concerning her reluctance and virtual inability to mix in and around her small community and her inability to drive to other places. I find, on the balance of probabilities, that she would be quite unable to return to employment of any nature insofar as it involved leaving home and mixing with other people.
47 On a number of occasions in cross-examination, Ms Donohue was asked whether she would like to return to work. She responded positively. However, upon further questioning, it became evident that what she was saying was that she would like to return to work if only she could. Dr Entwisle noted that she appeared motivated to return to work.[10] She was apparently asked about whether she might be able to pump gasoline at a petrol station, and responded that she would “like to have a crack”. It was on that basis that Dr Entwisle apparently considered that she had a work capacity. I consider that largely ignores the reality of her condition, her symptoms of anxiety, her inability to travel outside the home in any normal manner and her inability to mix with other people.
[10]Defendant’s Court Book page 19
48 I have taken into account that Ms Donohue has travelled to Queensland on a holiday which corresponded with her husband’s long service leave, and has also spent time holidaying at Seaspray on the Gippsland coast and engaging in caravan trips with her husband. These, I accept, were times when she was in the company of her husband and that she was able to cope. Her evidence was that on such adventures, she mixed with no other people. I do not consider that those trips are inconsistent with her evidence as to the extent of her isolation.
49 I am satisfied that when the various matters to which I have referred are looked at collectively, the consequence of her Adjustment Disorder is indeed severe. I accept the evidence of Dr Ivanoff and Dr Gill that Ms Donohue is unlikely to be able to return to gainful employment in the foreseeable future.
50 I consider, on the evidence before me, that Ms Donohue is unlikely to improve to any significant extent in the foreseeable future. In that sense, I consider her symptoms will be permanent. I further note that a Certificate of Opinion of a Medical Panel dated 13 February 2014 is consistent with this view.[11]
[11]Plaintiff’s Court Book page 154
51 I am satisfied that the pain and suffering consequence of Ms Donohue’s disorder is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
Conclusion
52 For the reasons expressed above, I am satisfied that Ms Donohue has suffered a “serious injury” as that term is defined in the Act.
53 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Ms Donohue to commence a proceeding claiming damages in respect of pain and suffering in respect of injury suffered by her in the course of her employment with the defendant.
54 I shall hear the parties in respect of costs.
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