Durakovic v State of Victoria
[2023] VCC 1439
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-05590
JACINTA DURAKOVIC
| Plaintiff | |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | HER HONOUR CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2023 | |
DATE OF JUDGMENT: | 24 August 2023 | |
CASE MAY BE CITED AS: | Durakovic v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1439 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychiatric injury – major depressive disorder – pecuniary loss damages –– whether plaintiff has capacity for additional work hours – whether work capacity meets test
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129;
Mobilio v Balliotis [1998] 3 VR 833;
Richter v Driscoll [2015] VSC 457;
Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr O Lesage | Carbone Lawyers |
| For the Defendant | Mr N Dunstan | TG Legal & Technology |
HER HONOUR:
1Ms Durakovic worked as a primary school teacher from 1987 until 2019. She had time off for the birth of her children and worked part time for extended periods. She obtained additional certification in literacy and worked for many years in “Reading Recovery”. At the time of her alleged injury, she was working as a classroom teacher at Ardeer South Primary School.
2In March 2019, a situation at the school caused Ms Durakovic a great deal of stress. She felt a colleague had been unfairly treated. She raised her concerns. She felt she was unfairly treated as a result of raising her concerns and the situation, at least in her mind, escalated. By September 2019, Ms Durakovic felt she could no longer work at the school. There is no dispute that Ms Durakovic developed a work-related psychiatric injury.
3Since her injury, Ms Durakovic has returned to work on a casual part-time basis as an invigilator, overseeing student exams and assessments. Since the beginning of this year, she has also looked after her two-year-old grandson five days a fortnight ꟷ three days one week and two days the next.
4Ms Durakovic says her psychiatric condition amounts to a serious injury and seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for a certificate to commence common law proceedings for pain and suffering damages and pecuniary loss damages.
5The issues in this case are:
(a) Whether Ms Durakovic’s psychiatric injury is a permanent severe mental or permanent severe behavioural disturbance or disorder, the consequences of which, in comparison with other cases, can be fairly described at least as “‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] While there is no established test for what is meant by “severe”, it is accepted that “severe” is intended to convey something with stronger force than “serious”;[2]
(b) If so, has she sustained a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more when comparing her “with injury” and “without injury” earning capacity.
[1] Humphries & Anor v Poljak [1992] 2 VR 129
[2] Mobilio v Balliotis [1998] 3 VR 833
6For the reasons below I am satisfied that Ms Durakovic has a serious injury and has suffered pecuniary loss. Accordingly, she is granted leave to pursue a claim for damages on both heads.
Credit
7No significant attack was made on Ms Durakovic’s credit. The State of Victoria (“the State”) submitted that Ms Durakovic’s evidence that she reduced her hours of casual work because of her psychiatric condition was a “recent invention”. In support of this proposition, the State points to the following:
(a) Ms Durakovic told medico-legal psychiatrist, Dr Diane Neill, that she reduced her hours to look after her grandson;
(b) Neither her treating psychologist, nor her treating general practitioner, noted in their reports that she reduced her work hours because of her psychiatric condition. Both expressed the view that Ms Durakovic had no work capacity, which the State submits suggests she had not disclosed to them that she was working on a casual basis.
8Ms Durakovic said she could not account for the absence of a reference to her current casual work in the reports from her psychologist or general practitioner, as she had disclosed this work to them both, and discussed her work and the stress it causes her with them both.
9Treatment records from May 2022 and February 2023 of Ms Durakovic’s treating psychologist detail her psychiatric and physical responses to her work, the stress her work was causing, and her concern that she could not continue to do that work:
“[Ms Durakovic] reported she does not want to do testing anymore. She cannot focus/concentrate. In fact she is struggling in every area of daily life activities.
…
[Ms Durakovic] reported had Diarrhoeah & other symptoms the night before testing and on the day of work had a panic attack & symptoms of diarrhoeah & was very distressed.”[3]
(sic)
and
“[Ms Durakovic] reported that she worked on Friday and Saturday morning. She stated that on both mornings she had anxiety and diarrhoeah (sic). She continued to report that at times she has a little relief but this does not last.
…
[3]Progress notes of Ms Theodora Famulari, dated 10 February 2023, Exhibit P3
… She stated that both work sessions ran smoothly but the lead up to the work sessions causes her a lot of anxiety. [Ms Durakovic] stated that the next session is on Wednesday, June.”[4]
[4]Progress notes of Ms Theodora Famulari, dated 5 May 2022, Exhibit P3
10These records confirm Ms Durakovic’s evidence that she disclosed to her psychologist the fact that she was working and that she found the work as a casual invigilator stressful and had physical symptoms as a reaction to the stress.
11Ms Durakovic agreed that she reduced her available hours as an exam invigilator because of her commitment to mind her grandson five days a fortnight, however said she also reduced her hours as an invigilator because of the stress the work caused her.
12The two are not mutually exclusive. She notified her employer that she was no longer available certain days of the week. She remained, and remains, available to work on days when she is not looking after her grandson. She gave evidence that, regardless of her responsibilities with her grandson, she could not cope working as an invigilator for consecutive days.[5] Her payslips show her work as an invigilator was sporadic. Reducing her available hours because of her family responsibilities does not mean she had a work capacity to work consecutive days on an ongoing basis. I will deal with this evidence further in considering her pecuniary loss, however I do not consider her evidence in this regard damages her credibility.
[5]T36, L15-L22
13I do not consider Ms Durakovic’s credit to have been impugned and generally accept her as a reliable witness.
Has Ms Durakovic suffered a permanent severe mental disturbance?
14I have read the affidavit material filed in support of the application, the medical records and reports from treaters and medico-legal experts, but will refer to that material only to the extent that it is necessary to explain my reasons.
Prior medical history
15Ms Durakovic gave the following evidence about her past relevant medical history:
(a) In March 1996, Ms Durakovic suffered from postnatal depression following the birth of her third child. She was prescribed antidepressant medication at the time and made a full recovery. She continued to work as a casual relief teacher and there was no effect on her performance;[6]
(b) In December 2015, Ms Durakovic experienced depression associated with being worried about her son;[7]
(c) In June 2016, she experienced stress associated with her son, who was depressed;[8]
(d) In February 2018, Ms Durakovic experienced stress associated with having a melanoma removed;[9]
(e) In 2018, Ms Durakovic experienced stress and depression due to a sudden death in her family and following the death of a close friend.[10]
She said she recovered reasonably well from each of these episodes. She continued to work and her performance was unaffected.[11] She was not cross-examined on any of this evidence and no submission was made that she had a prior psychiatric injury which would have to be disentangled from her work-related injury.
[6]PACB 5 at paragraph [13]
[7]PACB 18 at paragraph [6]
[8]PACB 18 at paragraph [6]
[9]PACB 18 at paragraph [6]
[10]See the report of Dr Raid Al Humrany, consultant psychiatrist, dated 2 March 2020 at Plaintiff’s Amended Court Book (“PACB”) 27, wherein he states: “In regard to her psychiatric history, Mrs Durakovic told me that she has some emotional instability and grief following death of her close friend which happened two and a half years ago however she alleged that she was able to function in adequate way”.
[11]PACB 5 at paragraph [13]-[14]; PACB 6 at paragraph [6]
Current condition
16Ms Durakovic says she suffers from persistent feelings of depression and anxiety. She experiences suicidal thoughts and has contemplated suicide on several occasions. She has low mood, low motivation and loss of confidence. She feels helpless and hopeless, and worries about the future. She gets teary and “down in the dumps”, and has difficulty feeling enjoyment. She experiences associated problems with concentration and memory.
17She ruminates about what happened to her in her previous workplace and has intrusive thoughts. She is easily triggered by reminders. She is sensitive to noise and interactions with other people and continues to “get the jitters”. When she falls asleep, she often wakes up at night and has trouble getting back to sleep. She frequently tosses and turns or wakes up sweating from nightmares. She dreams about work and how poorly she was treated. She often feels tired due to broken sleep. She finds it difficult to leave the house and enjoy herself, and is overwhelmed by paranoia and anxiety.
18When she began working as an invigilator, she developed a red body rash with welts on her neck, arms, and hands, which she attributed to stress and anxiety. She suffered from frequent nose bleeds and uncontrollable encopresis. She had panic attacks and, on one occasion, locked herself in the bathroom unable to move.
19The plaintiff’s husband, Mr Anthony Durakovic, says her injuries and symptoms have a profoundly negative impact on all aspects of her daily life. He observes her struggling to perform everyday tasks and needing breaks to sit or lay down. She is jumpy, jittery and has problems concentrating. He often needs to tend to her, which causes issues in their relationship. He says she is socially withdrawn and now only rarely attends the Moonee Ponds Racecourse with him, where he is a committee member. She attended more frequently before the injury.
20He says Ms Durakovic is too anxious to drive and sometimes vomits before going to work. She seems exhausted after a shift and sometimes has rashes or a blood nose. She has complained about headaches and diarrhoea. There are times where she cannot get out of bed.
21Ms Durakovic has been diagnosed with an adjustment disorder and major depressive disorder. There is substantial consensus about this diagnosis.[12]
[12]Dr Al Humrany, report 2 March 2020 at PACB 26; Dr Dennis Handrinos, report dated 29 November 2021 at Defendant’s Court Book (“DCB”) 15; Ms Famulari, reports dated 10 April 2022 and 25 April 2023 PACB 30 and 36; Dr Leon Turnbull, report dated 23 May 2023 at PACB 57; Dr Neill in her report, dated 7 June 2023 at DCB 32
Treatment
22Ms Durakovic consults her general practitioner, Dr Duraid Youssef, on approximately a fortnightly basis.
23She commenced treatment with psychologist, Ms Famulari on 12 June 2019 and continues to see her four to six times weekly.
24She saw psychiatrist, Dr Samir Ibrahim, for about eighteen months.[13] She ceased treatment with him in March 2022 when he proposed ECT treatment, which she was unwilling to commence.[14]
[13]Transcript (“T”) 7, Lines (“L”) 1
[14]PACB 10-11
Medication
25Ms Durakovic takes:
(a) Escitalopram (Lexapro) 30 milligrams daily,[15] which was increased on 13 July 2023 from 20 milligrams;
(b) Melatonin for sleep.[16]
[15]PACB 11
[16]PACB 18
Findings
26I am satisfied that Ms Durakovic has sustained a permanent severe mental disturbance for the following reasons:
(a) She has been having treatment in the form of counselling over an extended period;
(b) She has required antidepressant medication for many years, with no indication that this will cease;
(c) I accept her evidence of the consequences of her psychiatric condition being:
(i)anxiety, paranoia, stress and depression;
(ii)inability to focus and concentrate for extended periods of time on television, books and conversation;
(iii)physical symptoms such as rashes, heart palpitations, chest pains, diarrhoea and headaches;
(iv)difficulties with sleeping and nightmares;
(v)loss of confidence;
(vi)lack of motivation in self care and household duties;
(vii)withdrawal from friends and family;
(viii)lack of motivation to engage in hobbies.
(d) I accept Ms Durakovic’s evidence that she loved working in education, that she prided herself on her ability to work and the wealth of knowledge she brought to the workplace, and that she loved teaching. I accept her evidence that she misses her work and the sense of achievement it gave her. Her work gave her a sense of purpose, in that she was able to care for and help others. Not being able to work makes her feel depressed and worthless.
(e) Both Dr Neill and Dr Turnbull agree that Ms Durakovic has no psychiatric capacity for her pre-injury employment duties. Given the important role that her work played in her life and in her sense of self, the loss of her capacity for this work is a severe consequence for Ms Durakovic that meets the test for serious injury.
27Accordingly, Ms Durakovic will be granted leave to pursue a common law claim for damages for pain and suffering for her psychiatric injury.
Has Ms Durakovic sustained a pecuniary loss that meets the test?
28A court must not grant a worker leave to bring proceedings on the basis that the worker has established a loss of earning capacity unless the worker has a loss of earning capacity of 40 per cent or more.[17]
[17] Section 325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)
29For the purposes of establishing a 40 per cent loss of earning capacity, the Court must compare:
“(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;”
30Suitable employment is defined in s5 of the Act and requires regard to be had to a worker’s incapacity, age, skill, experience, place or residence and the nature of the pre-injury employment.
31Suitable employment contemplates employment as a “settled or established member of the wage earning workforce”.[18]
[18]Richter v Driscoll [2015] VSC 457 at paragraph [33]
32A return to employment that exposes a worker to aggravation or deterioration of the injury is not suitable employment.[19]
[19]Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17 at paragraphs [69] and [71]
33The parties agree that her “without injury” earning capacity is $63,351 gross per year. If Ms Durakovic retains a capacity to earn 60 per cent or more of that amount, being $38,010, from suitable employment, she will not have an entitlement to claim for pecuniary loss consequences.
34Ms Durakovic returned to casual work as an invigilator with Janison Solutions Pty Ltd (“Janison”) in March 2022. This role requires Ms Durakovic to supervise assessments at various schools. Sometimes the supervision will be within a classroom and Ms Durakovic must ensure that exam conditions are complied with. Sometimes the assessment will be in a larger forum, such as a school hall or a gymnasium. In that case, Ms Durakovic’s role is more limited, focused on handing out and collecting papers.
35Ms Durakovic says she copes better when invigilating in a larger forum as she has less responsibility. She says she manages the work primarily because she usually does it in the company of her husband. Despite this, she still finds it stressful. She often has diarrhoea beforehand. Going to a new school for the first time is also stressful. She feels that this work has “reaggravated” her psychiatric injury.[20] On one occasion, she had to lock herself in a bathroom to recover from a panic attack.[21] She had a break from the invigilator work after March 2022 and a few months later she felt able to return. She has, on occasion, worked three or four shifts a week. These are half-day shifts (three or four hours each). She says she often has to be reminded to complete tasks required, which causes her further stress and anxiety. She is stressed and anxious in the lead up to the work. In December 2022, she said she was working two or three shifts a week. She said the work tends to be concentrated around the beginning and end of year, when there are scholarship and assessment exams, and there is a lull during those parts of the school year when assessments are not undertaken. She goes to schools in metropolitan Melbourne, as well as Mornington, and occasionally Geelong.
[20]PACB 11 at paragraph [69]
[21]PACB 13 at paragraph [85]
36At the time of the hearing, Ms Durakovic was minding her grandson five days a fortnight. On those days, she is with her grandson from about 7.00am to about 3.00pm. Her husband drives her and often stays with her. Occasionally he drops her off and collects her later. She informed Janison that she was not available on the days she minded her grandson, although she remains available for work on other days.
37The State says Ms Durakovic has capacity to work in her invigilator role and also has capacity for four other roles identified by occupational therapist, Ms Anne-Maree Quinn. These are:
(a) private tutor/teacher;
(b) call centre operator;
(c) receptionist;
(d) information officer.
38The State relies on the reports of Dr Neill and Dr Handrinos.
39Dr Handrinos examined Ms Durakovic in December 2019 and November 2021. In his later report, he considered Ms Durakovic could return to work at a school other than Ardeer South Primary.
40Dr Neill, in her report of 21 July 2023, said Ms Durakovic had capacity for each of the roles identified by Ms Quinn. She diagnosed Ms Durakovic with a major depressive disorder with anxious distress which was in substantial partial remission. Dr Neill considered Ms Durakovic had no psychiatric capacity for her previous employment duties, but had a psychiatric capacity for suitable employment at her pre-injury hours. She found Ms Durakovic had mild residual depressive and anxiety symptoms, with a limited range of cognitive, behavioural and affective findings consistent with mild depression and anxiety.
41Although she does not set out her path or reasoning in concluding that, though Ms Durakovic has no capacity for her previous duties, she has capacity for the identified jobs, I surmise that this is because she has accepted the findings of Ms Quinn that the roles amount to suitable employment, and considers Ms Durakovic’s psychiatric injury to be in substantial partial remission, with only mild residual symptoms.
42The State says the income from any of these roles would exceed the 60 per cent of the pre-injury earnings threshold.
43Further, the State says Ms Durakovic has a demonstrated capacity to work four shifts a week as an exam invigilator. Four shifts a week in this role would also exceed the 60 per cent threshold.
44Ms Durakovic relies on the opinion of psychiatrist Dr Turnbull, her general practitioner Dr Youssef, and her treating psychologist.
45Dr Turnbull was unable to reconcile the reports of Dr Neill and Ms Quinn with the treating psychologist’s notes and his own assessment of Ms Durakovic’s presentation. He noted the picture painted by the psychologist was of a consistently dysfunctional woman who has returned to work in a limited capacity within the protection of her husband’s presence. He noted she was sensitive and brittle in the workplace and experiences physical symptoms that seem to be psychologically driven.
46He agreed with Dr Neill that the Major Depressive Disorder was in partial remission, but did not consider that remission was substantial. He was unable to say with certainly that she was completely incapacitated from being able to transfer her skills to another role, nor could he say it was probable that she could do other types of work. In his view, there was a slight possibility that she could do other work, but the difficulties she reported experiencing as an invigilator would likely continue in other workplaces and would likely become problematic when dealing with members of the public and fellow employees. He did not consider she had the psychological stamina for frequent interaction with people face to face or over the phone, given her tearfulness, lack of confidence and fragility. He considered dealing with unsatisfied customers or people’s dissatisfaction would be contraindicated. He considered it likely that such interactions would cause Ms Durakovic’s psychiatric condition to deteriorate and would be “adversely potent”.
47Ms Durakovic’s treating psychologist, Ms Famulari, considers Ms Durakovic unfit for previous duties and any other form of employment. Notwithstanding the fact that Ms Famulari is aware that Ms Durakovic is working casually as an invigilator, she considers Ms Durakovic regressed following her return to work. She notes Ms Durakovic’s presenting symptoms of insomnia, restlessness, diarrhoea, body rashes, shakiness and heart palpitations are not improving. She reports severe anxiety and depression symptoms, she reports difficulty maintaining focus and concentration on tasks, and has memory difficulties.
48Ms Durakovic’s treating general practitioner, Dr Youssef, reports symptoms of insomnia, agitation, tearfulness, anger and lack of energy. He considers she is unfit for work.
49Where their opinions differ, I prefer the evidence of Dr Turnbull over Dr Neill and Dr Handrinos for the following reasons:
(a) Dr Handrinos has not seen Ms Durakovic since 2021 and his opinion is therefore of limited utility in relation to her current condition;
(b) Dr Turnbull has had the advantage of seeing Ms Durakovic in 2020, and again in 2023, and has been able to assess the difference between her presentation then and now;
(c) Dr Turnbull’s findings accord with Ms Durakovic’s presentation to her treating psychologist, her general practitioner and her presentation in Court, where she was composed and responsive, but teary and distressed;
(d) Dr Neill’s conclusion that Ms Durakovic’s major depressive disorder is substantially in remission is not consistent with her symptoms, or her presentation to her psychologist or in Court.
Does Ms Durakovic have capacity to work in the roles identified as “suitable employment”?
50Dr Neill’s conclusion that Ms Durakovic has capacity for each of the identified jobs in Ms Quinn’s report is difficult to reconcile with her opinion that Ms Durakovic has no capacity for pre-injury employment, given that many aspects of pre-injury employment that render it unsuitable are likely to be present in the identified jobs. This includes frequent interactions with people, some of which are likely to be in the context of conflict (dissatisfied customers/pupils and supervision of work by an authority figure). I do not accept Dr Neill’s assessment that Ms Durakovic has capacity for each of the roles identified as she has not explained how it is consistent with her opinion that Ms Durakovic has no capacity for her pre-injury duties.
51Ms Durakovic is not required to work in a position which would expose her to a risk of aggravation or deterioration of her injury. I accept the opinion of Dr Turnbull that each of the proposed occupations would be likely to cause such a deterioration. This accords with Ms Durakovic’s evidence. I find that none of the proposed jobs represent suitable employment for Ms Durakovic.
Does Ms Durakovic have capacity to work four or more shifts a week at Janison?
52Although, on one occasion, Ms Durakovic did work nine shifts over the course of a fortnight, in the fortnight from 29 August 2022 to 11 September 2022, I do not consider this represents her working capacity.
53I accept her evidence of the stress, anxiety and physical symptoms she experiences when contemplating and undertaking work and that working consecutive days is particularly difficult. After working nine shifts in a fortnight on a single occasion, Ms Durakovic has not worked more than four shifts in fortnight.
54Ms Durakovic’s evidence of her symptoms when she works, and the increase in the symptoms when she works consecutive days, the evidence of Dr Turnbull and the evidence of Ms Famulari, lead me to conclude that Ms Durakovic does not have a capacity to work four or more shifts a week with Janison. Working four or more shifts at Janison each week would expose her to a real risk of a deterioration of her injury and an increase in her symptoms.
55Accordingly, I am satisfied that she does not have a current earning capacity of 60 per cent or more of her pre-injury earning capacity. Ms Durakovic has leave to pursue a claim for damages for pecuniary loss.
---
0
2
0