Durrant v 101 Warehousing Pty Ltd
[2021] VCC 834
•25 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00974
| LEEANN DURRANT | Plaintiff |
| v | |
| 101 WAREHOUSING PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2021 | |
DATE OF JUDGMENT: | 25 June 2021 | |
CASE MAY BE CITED AS: | Durrant v 101 Warehousing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 834 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142 and Yildirim v A&L Windows Pty Ltd & Ors [2021] VSC 139; Mobilio v Balliotis [1998] 3 VR 833; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas (2017) CLR 550
Judgment:Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr S Dawson | Rubicon Compensation Lawyers |
| For the Defendant | Mr R Kumar | Minter Ellison |
HIS HONOUR:
1In this proceeding, the plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring a proceeding for the pain and suffering consequence of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (for brevity, hereafter “Adjustment Disorder”) which is materially contributed to by an injury to her right forearm sustained in the course of her employment on 29 June 2016.
2In this proceeding, medical questions were referred to the Medical Panel (hereafter the Panel).[1] It was common ground that the opinion of the Panel on the medical questions referred confined[2] the plaintiff to reliance upon paragraph (c) of the definition of “serious injury”, and to leave in respect of pain and suffering only.
[1]Also in evidence was the Certificate of Opinion, and the Reasons for Opinion, of an earlier Medical Panel that had examined the plaintiff in 2019. I shall refer to that Medical Panel as the earlier Panel.
[2]Because s 313(4) obliges me to adopt and apply, and accept as final and conclusive, the opinion of the Panel on a medical question for the purposes of determining any question or matter.
3The only issue remaining was whether the Adjustment Disorder the plaintiff suffers from is a permanent severe mental or permanent severe behavioural disturbance or disorder.
4In its Certificate of Opinion dated 18 March 2021, the Panel gave its Certificate of Opinion in response to the medical questions referred:
“Question 1 What is the nature of the medical condition(s) of the plaintiff’s:
a) right forearm and hand;
b) psychiatric/psychological state?
Answer: In the Panel’s opinion Ms Durrant has:
a) Well healed surgical scarring of the right forearm resulting from surgical treatment of the accepted injury, but no current evidence of Complex Regional Pain Syndrome or other current physical condition of her right forearm or hand;
b) A chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Question 2Do the conditions found in answer to question 1 result from, or are they materially contributed to by, the right forearm injury suffered by the plaintiff on 29 June 2016 (the right forearm injury)?
Answer: In the Panel's opinion the well-healed surgical scarring and the chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood are materially contributed to by the claimed right forearm injury.
Question 3Are the conditions found in answer to question 1 likely to be permanent?
Answer: In the Panel’s opinion the well-healed surgical scarring and the chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood are likely to be permanent.
Question 4Having regard to the right forearm injury (disregarding any psychological/psychiatric consequences), does the plaintiff have:
a) a ‘current work capacity’;
b) ‘no current work capacity’?
Answer: In the Panel’s opinion Ms Durrant has no present inability arising from the right forearm injury (disregarding any psychological/psychiatric consequences) such that she is not able to return to her pre-injury employment.
Question 5If yes to question 4(a) or 4(b), having regard to the right forearm injury (disregarding any psychological/ psychiatric consequences), is the incapacity of the plaintiff likely to be permanent?
Answer: Not applicable
Question 6If yes to question 4(a), having regard to the right forearm injury (disregarding any psychological/psychiatric consequences):
a) What employment would constitute ‘suitable employment’ for the plaintiff?
b) For how many hours per week is the plaintiff capable of working in such ‘suitable employment’?
c) If the number of hours per week as stated in answer to question 98(b) is less than full-time (i.e. 38 hours per week), will the plaintiff be capable of working a greater, and if so what, number of hours per week in such ‘suitable employment’ in the foreseeable future?
Answer: Not applicable
Question 7Having regard to any psychiatric/psychological injury which arises does the plaintiff have:
a) a ‘current work capacity’;
b) ‘no current work capacity’?
Answer: In the Panel’s opinion Ms Durrant has no present inability arising from the chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood such that she is not able to return to her pre-injury employment.
Question 8If yes to question 7(a) or 7(b), having regard to the claimed mental injury, is the incapacity of the plaintiff likely to be permanent?
Answer: Not applicable
Question 9If yes to question 7(a), having regard to the right forearm injury (disregarding any psychological/psychiatric consequences):
a) What employment would constitute ‘suitable employment’ for the plaintiff?
b) For how many hours per week is the plaintiff capable of working in such ‘suitable employment’?
c) If the number of hours per week as stated in answer to question 98(b) is less than full-time (i.e. 38 hours per week), will the plaintiff be capable of working a greater, and if so what, number of hours per week in such ‘suitable employment’ in the foreseeable future?
Answer: Not applicable.”
The evidence
5Only the plaintiff gave evidence before me, and this was confined to adopting as true and correct the affidavits she had sworn. The plaintiff was not cross-examined.
6The parties tendered medical reports, and without objection, the Reasons for Opinion of the Panel, and the Certificate of Opinion, and the Reasons for Opinion of the earlier Panel.[3] Video surveillance material was tendered electronically.
[3]As to the use that may be made of Reasons for Opinion, see Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraphs [56]-[64]
7The plaintiff’s account is set out in her two affidavits.
8Now forty-seven years of age, the plaintiff was schooled to Year 12 in New South Wales. After leaving school, she has had a variety of jobs including picking and packing, sales work, process work in factories and photocopying.
9In about 2003, the plaintiff began employment with the defendant, starting there when placed by an employment agency, and becoming a direct full-time employee as a picker/packer in May 2004.
10In the course of her work, on 29 June 2016, the plaintiff sustained as laceration to her right forearm when it came into contact with a broken plate.
11Later that day, the wound was sutured and the plaintiff returned to work on light duties. She suffered persisting problems, including an infection. After further investigation, the plaintiff underwent surgery on 22 September 2016 to remove a foreign body from the wound. After that time, the plaintiff continued to complain of symptoms – tingling and numbness and swelling of the right hand, though she continued to attend work to perform modified duties. In December 2016, her employment came to an end when no further light duties were provided by the employer.
12Symptoms continued and diagnoses of carpal tunnel syndrome, of Complex Regional Pain Syndrome Type 1 and of a secondary psychological condition diagnosed as Major Depressive Disorder were made.
13Specialists in pain medicine became involved and a variety of medications provided only temporary relief, and a ketamine infusion provided none.
14In late 2018, the plaintiff completed a multidisciplinary pain management course. At around that time, the plaintiff struggled with the physical demands of a bookkeeping course which involved three hours of class work each week. Part of the difficulty with this course the plaintiff attributed to the earlier injury to her left hand suffered in 2010.
15A dispute concerning the plaintiff’s entitlement to weekly payments of compensation under the Act resulted in a referral to the earlier Panel in July 2019.[4]
[4]The Opinion and Reasons of the earlier Panel appear at PCB 28-40
16In her first affidavit sworn on 2 October 2019,[5] the plaintiff lists numerous ways in which the pain from which she suffers has interfered with her work, domestic and recreational activities, and her frustration at her inability to undertake many formerly enjoyed activities.
[5]At paragraphs 28-58
17The plaintiff also describes feelings of embarrassment, regret and sadness at the loss of the social aspects of her employment, changes in her mood and in her interactions with others, as well as her concerns about her prospects of future employment.
18In her second affidavit sworn on 13 May 2021,[6] the plaintiff states that nothing much had changed since the earlier affidavit, and that she still experienced disabling pain affecting a great many aspects of her life and her enjoyment of it.
[6]Plaintiff’s Court Book (“PCB”) 12-16
19As to her emotional state, the plaintiff swore:
“5.The persisting nature of my pain and the limitation it places on my life makes me feel pessimistic about my future, to the extent that I am kept up at night with feelings of lack of self-worth, worry, anxiety and depression, which have led to me contemplating suicide at times. I feel grief and loss in regard to my inability to work on account of my injuries.
6.My emotional state fluctuates from day to day depending on the severity of my pain, but I generally feel very low and, on some days, so low that I find it difficult to get out of bed. At times, my feelings of depression lead to me being tearful for days. I am anxious all of the time to varying degrees. I experience feelings of hopelessness and helplessness most days in regard to my unresolved pain and uncertain future. I experience problems with memory and concentration, which I find both frustrating and disconcerting.”[7]
[7]PCB 16
20The plaintiff then listed the treatment she has had for her mental state, from her general practitioner, her psychologist and from Dr Tilakawardena, her treating psychiatrist, with whom she engages by telephone on a fortnightly basis. Presently, her medication consists of duloxetine (120 milligrams) and mirtazapine (45 milligrams) at night.
21The plaintiff also lists a significant quantity and variety of anti-inflammatory and analgesic medication that she takes for her pain and inflammation.
22From October to December of 2020, the plaintiff underwent thirty-one sessions of repetitive Transcranial Magnetic Stimulation (“rTMS”) to the right side of her brain. She found the treatment unpleasant, and said that it caused a variety of painful symptoms and additional anxiety, thoughts of self-harm and suicide. The plaintiff said she also believes that this treatment increased her mood swings, reduced her patience and increased her problems with memory.
23Next, the plaintiff takes issue with the Panel’s Opinion, and states that she honestly and genuinely experiences disabling pain, and describes treatment for it that had been suggested to her, and her willingness to undergo it despite the risks that attend the proposed treatment – namely the insertion of a spinal cord stimulator.
The medical evidence
24As mentioned, the Certificate of Opinion and Reasons for Opinion of the earlier Panel dated 9 July 2019 were tendered. The earlier Panel found only minor residual scarring but no other physical medical condition of the right hand, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood “relevant to the claimed injury”.
25In its Reasons for Opinion, the earlier Panel found a well healed surgical scar of the right forearm but no other physical condition of the right forearm and hand, and diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The earlier Panel recorded its psychiatric assessment of the plaintiff, which included a history of the plaintiff’s reaction to the way she was treated by her employer following the injury. The earlier Panel recorded her current mood as “feeling depressed over time and that her mood state had remained despondent with some intermittent passive suicidal thinking over the last 2 years”.[8] The earlier Panel recorded the treatment the plaintiff was then having (sertraline and oxazepam), and recorded her account of fluctuations in mood, intermittent anxiety and occasional panic, reduced energy, drive, concentration, enjoyment of life and a loss of confidence and self-worth. It recorded insomnia due to pain and stress, a variable appetite, weight gain and concern about her future.
[8]PCB 33
26The earlier Panel recorded its findings on clinical examination of the right arm and hand, noting swelling (thought to be due to the wearing of the bandage and disuse), non-anatomical reduction in sensation, and it noted that in the display of poor movement of the thumb and fingers of the right hand, that it considered that maximal effort had not been exerted, because normal movement could be observed when the plaintiff was distracted.
27The earlier Panel recorded the results of its mental state examination, noting:
· a general impression of adequately maintained self-care
· immobility of the right hand that was out of keeping with surveillance
· a range of facial expressiveness and emotions
· normality of thought form and stream, noting the content was primarily of concern with her future, noting also passive suicidal ideation.
28The earlier Panel thought cognition, though not tested, was grossly intact, and insight was reasonable.
29The earlier Panel viewed surveillance DVD material in the presence of the plaintiff and wrote that the actions depicted in it were not consistent with the plaintiff’s presentation, and that the video demonstrated no loss of function of the right or left hand.
30The earlier Panel then set out the material it had considered and its conclusions. In relation to its psychiatric diagnosis, it noted that others had offered a diagnosis of a Major Depressive Disorder and a Somatic Symptom Disorder (previously known as Chronic Pain Disorder), and in another case, no psychiatric illness at all. The earlier Panel stated that it preferred its own diagnosis based on its assessment, and gave its reasons, which included the video material, for rejecting a diagnosis of Chronic Pain Disorder.[9] The earlier Panel wrote that the psychiatric condition did not affect the plaintiff’s capacity for work.[10]
[9]Amongst them “The Panel also concluded that her experience of right forearm pain did not warrant a Chronic Pain Disorder diagnosis because of a lack of intensity in her emotional response to the pain, as well as the collateral video evidence which indicated an inconsistent presentation in relation to her pain symptomatology”.
[10]PCB 37
31Under the heading “work capacity”, again pointing to the lack of a physical medical condition and the video evidence, the earlier Panel wrote that the plaintiff was not suffering from a physical or psychiatric medical condition that would prevent a return to her pre-injury duties.[11]
[11]The earlier Panel wrote “The Panel considered that her current statements of incapacity were at significant variance to the Panel’s clinical findings, the video evidence and the lack of any physical medical condition that would account for these symptoms. The Panel therefore concluded that she was not suffering from a physical or psychiatric medical condition that would prevent a return to her pre-injury duties as a picker and packer and that therefore she has a current work capacity.” PCB 38
32In evidence also were the Panel’s Reasons for Opinion[12] given for the Opinion to be adopted and applied in this proceeding.
[12]PCB 44-66
33The Panel detailed its examination findings concerning the right arm – these included:
· On neurological examination there was no evidence of muscle wasting and the tone and reflexes were normal and equal. There was collapsing weakness of flexion and extension at the wrist and elbow.
· On sensory examination, the plaintiff reported decreased sensation (but not hyperalgesia) on light touch and pinprick, in a patchy, non-dermatomal distribution over the right arm distal to the elbow.
· Grip strength was measured using a Jamar Dynamometer and was found to be variable, ranging from 0-10 kilograms on repeated assessments of the right hand, and variable, with an average of 30-40 kilograms on repeated measurements of the left hand.[13]
[13]PCB 50
34The Panel also reviewed the surveillance with the plaintiff, showing the plaintiff’s activities in October 2018, December 2018 to January 2019 and from December 2019 to February 2020. Of it, the Panel wrote that it “considered that the actions depicted in the DVD were not inconsistent with its diagnostic assessment of Miss Durrant”.[14]
[14]The physical diagnosis being of no more than a healed surgical scar
35Next, the Panel explained why it rejected the diagnosis that others had made of complex Regional Pain Syndrome. Whilst allowing that this diagnosis may have been warranted in the past, the Panel wrote that apart from the scarring, there was now no physical condition of the right forearm. In this regard, the Panel noted that its own conclusions coincided with that of the earlier Panel, and those of other medico-legal[15] examiners.
[15]Referring to the 2020 reports of Dr Slesenger and Mr Ireland, that are not in evidence here
36In a passage at page 52 of the plaintiff’s court book, the Panel notes that at an earlier time, a diagnosis of “a chronic regional pain syndrome and not a Complex Regional Pain Syndrome” had been made by rheumatologists, noting “the Panel also noted that its opinion concurred with” them.[16]
[16]PCB 52
37The Panel conducted a psychiatric examination. It took a history of the plaintiff’s account of her symptoms, which included pain fluctuating from 4 out of 10 to 10 out of 10, and of her treatment – the general practitioner fortnightly face-to-face, the psychologist weekly face-to-face or on the telephone, and the psychiatrist by telephone fortnightly. It recorded her medication.
38Of her current psychiatric symptoms, the Panel recorded the plaintiff’s domestic routine, variations in her emotional state (generally described as “very low”), poor sleep, reduced appetite and restlessness, such that she cannot watch a whole movie. It noted that on a good day, the plaintiff could mix with others for up to two hours, that she had difficulty with memory, energy and motivation, and had had a couple of panic attacks. On psychiatric examination, the Panel noted her sad appearance and that she gave a coherent history without thought disorder.
39Next, the Panel recorded:
“Her affect which was of both anxiety and depression, fluctuated little, was not reactive and was well communicated and appropriate to what was discussed.
There were no psychotic symptoms and despite vague suicidal ideas she did not have a current intent or plan to suicide. Cognition was not formally assessed but was grossly intact as evidenced by the history she provided. Insight and judgement were largely intact.
Based on its psychiatric assessment the Panel concluded that Ms Durrant is suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood which is secondary to having chronic pain and its consequences relevant to the claimed injuries.”[17]
[17]PCBC 54-55
40The Panel recorded its conclusion that from a psychiatric perspective, the plaintiff can do any work that she is able to do physically, and that this has been the case from the date of injury until the current time.[18] The Panel noted that others, including those treating the plaintiff, had made a diagnosis of Major Depressive Disorder, and noted that its own diagnosis agreed with that of the earlier Panel..
[18]PCB 55 – the Panel noted that in this regard its assessment was in agreement with the earlier Panel
41In evidence were reports from Ms Tonya Gabriel-Brennagh, health psychologist.[19]
[19]PCB 97-146
42In her reports, Ms Gabriel-Brennagh adopts the role of advocate for the plaintiff’s cause, and expresses her own disagreement with many aspects of the handling of the plaintiff’s claim, at one stage recommending “Serious Injury Status to be awarded” and later advocating spinal cord stimulation. Ms Gabriel-Brennagh’s diagnosis was:
“She is suffering with Complex Regional Pain Syndrome and depression, anxiety and a worrisome level of stress and coping. She is subject to suicidal ideation at times of stress.”[20]
[20]PCB 135
43In evidence were reports from the plaintiff’s treating psychiatrist, Dr Tilakawardena.[21] Dr Tilakawardena’s first letter back to the general practitioner contained her recommendations for further treatment, an increase in sertraline and the addition of mirtazapine to help with insomnia. She recommended continuing psychological treatment, as well as assistance with relaxation and mindfulness. By that stage, she had discussed with the plaintiff the use of neurostimulation treatment (“rTMS” – repetitive transcranial magnetic stimulation) if psychopharmacological treatment did not produce improvement.
[21]PCB 176-189
44Writing in June 2020,[22] Dr Tilakawardena wrote to the plaintiff’s solicitors that the plaintiff’s initial diagnosis –
“… was Major Depressive Disorder associated with depressive symptoms and chronic pain syndrome most likely due to Complex Regional Pain Syndrome. In my opinion, Ms Durrant has had an initial Adjustment Disorder with depressive and anxiety symptoms secondary to work-related physical injury and psychological injury, which has gradually evolved into severe symptoms consistent with a diagnosis of a Major Depressive Disorder.”[23]
[22]PCB 178
[23]PCB 179
45Dr Tilakawardena then listed a range of symptoms of which the plaintiff complained.
46Dr Tilakawardena then set out the course of the plaintiff’s treatment that followed – increasing mirtazapine to 45 milligrams at night and changing the antidepressant from sertraline to duloxetine with mild improvement. rTMS was still being considered. Dr Tilakawardena then discussed the opinions of others as to the management of the plaintiff’s condition and, in particular, explains why it is that she disagrees with the opinion of the earlier Panel. Explaining that, in her view, the plaintiff –
“… suffers from a chronic pain syndrome associated with Complex Regional Pain Syndrome and she also suffers from a Major Depressive Disorder.”
and
“Initially, she has had emotional difficulties and psychological injury that led to an adjustment disorder with mixed depressive and anxiety symptoms, which has gradually evolved into a Major Depressive Disorder. … .”[24]
[24]PCB 181
47Dr Tilakawardena was of the view that the plaintiff had no capacity for any form of employment nor for retraining or rehabilitation. Consideration of rTMS was still being given. Dr Tilakawardena wrote a very similar report to the conciliation service in September 2020.
48Writing in April this year,[25] Dr Tilakawardena described the plaintiff’s condition as a treatment resistant Major Depressive Disorder and noted that the plaintiff had undergone right unilateral repetitive transcranial magnetic stimulation treatment from October to December 2020 with significant side-effects, such that left-sided treatment was not considered. At the time of writing, the plaintiff was being treated with duloxetine, 120 milligrams daily, and mirtazapine, 45 milligrams nocte. Dr Tilakawardena recounted that the plaintiff had been distressed by the Panel’s opinion in this proceeding and set out her reasons for disagreement with the Panel’s diagnosis, and with its assessment of her capacity to work in her pre-injury employment. Once again, Dr Tilakawardena states her opinion that the plaintiff’s recovery from her psychiatric condition is “greatly impacted by her ongoing chronic pain of her Right upper limb and related disability. …”.[26]
[25]PCB 190
[26]PCB 191
49In June 2018, the plaintiff was examined by Dr Nicole Phillips, consultant psychiatrist, at the request of the WorkCover agent. Dr Phillips made a diagnosis of Major Depressive Disorder and did not think the plaintiff had a capacity for any employment.
50Dr Phillips re-examined the plaintiff in December 2018 and on this occasion, stated that her psychiatric disorder was “that of major depressive disorder and a somatic symptom disorder (previously known as chronic pain disorder)”.[27]
[27]Defendant’s Court Book (“DCB”) 16
51In subsequent correspondence, Dr Phillips wrote she thought that the plaintiff’s account of the level of the pain was incongruent with her general demeanour and mental state, and with the content of surveillance material that had been provided to Dr Phillips.
52On 3 July 2019, the plaintiff was examined by Dr Richard Prytula, consultant psychiatrist, at the request of the WorkCover agent.[28] Dr Prytula made a diagnosis of Major Depressive Disorder with Anxiety. He recorded in his mental state examination that the plaintiff engaged well, was pleasant and co-operative, that her mood varied from cheerfulness to tearfulness, that her affect was normal in range, that speech was fluent and normal, that there was no evidence of formal thought disorder or abnormalities of thought content and that there were no abnormalities of perception, and that there was reasonable insight.
[28]PCB 223
53The surveillance material tendered covers observations of the plaintiff’s activities at various times from October 2018 to late February 2020. I have reviewed it electronically. In the main, it shows the plaintiff, as she has often said in her histories that she does at least daily, out walking her dog. When she does so, the dog’s lead, faeces bag and the plaintiff’s mobile phone are almost always carried and manipulated in the left hand. The right hand and forearm, in its “Tubigrip”, swings normally by her side as she walks, and with it the plaintiff makes occasional spontaneous adjustments of her clothes. On occasions, more use of the right hand is made – rapid texting on a mobile phone; collecting dog droppings; pushing up from a squat; waving away flies; gesticulating in conversation; opening and closing car doors; opening a driveway gate, and steering the car. The relatively little use that is made of the right hand and arm appears to be quite normal, dexterous and spontaneous; no sign of the experience of pain or disability, other than avoidance of its use, is to be seen. After viewing it, it is not difficult to see why it was that both the Medical Panels concluded that it was consistent with the Panels’ diagnoses (of no physically-based problem). In my view, it also shows that the plaintiff’s account of unrelenting pain and disability is unlikely to be actually experienced by her.
Submissions
54In discussions during the plaintiff’s opening, the submission that the diagnosis given in answer to Question 1(b), because it did not exclude a Major Depressive Disorder, left it open to prove by other evidence that this, also, was a condition of the plaintiff’s mind that could be brought into account for the purposes of this application was not persisted with. The plaintiff’s case was, as I understood it, that once the diagnosis of Adjustment Disorder was made, then the plaintiff’s symptoms “are independent of the diagnosis”[29] and can all be brought into account in the assessment of severity. Further, in opening, by reference to the Reasons for Opinion, it was put that the Panel had made a diagnosis of chronic Regional Pain Syndrome, and that this should be regarded as an aspect of the Adjustment Disorder, and so the plaintiff’s experience of pain should also be brought into account in the assessment of severity .
[29]Transcript 5, Line 12
55The defendant did not contend that the Reasons for Opinion of the Panel were binding, even if, for the purposes of administrative law or judicial review, parts of the Reasons should be regarded as part of the opinion on the medical question referred,[30] but did submit that they were persuasive, and relevant.
[30]See Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at paragraph [28]
56The defendant submitted[31] that a finding of a capacity for full-time alternative duties pointed against a finding of serious injury in the case of physical injury, and here, a finding of no incapacity at all,[32] pointed even more strongly against a finding that the Adjustment Disorder is severe, and permanently so.
[31]by reference to Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 and Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
[32]As to the content of this reference, see Richter v Driscoll [2015] VSC 457; [2016] VSCA 142 and Yildirim v A&L Windows Pty Ltd & Ors [2021] VSC 139
57By reference to the treating psychiatrist’s analysis of the development of the plaintiff’s condition, from Adjustment Disorder to Major Depressive Disorder, it was submitted that to the extent that the diagnosis was explained by reference to worsening symptoms and a total inability to work, it cut across the Panel’s finding and so should be, as it was by the Panel (and by the earlier Panel), rejected by me.
58The defendant submitted that I was bound to find that the psychological symptomatology described by the plaintiff (in paragraphs 5 and 6 of her second affidavit) does not rise to a level that incapacitates her for work, at all. Further, the defendant submitted that the treatment administered is not said to be for the condition the Panel has found, but rather for a condition of the mind the Panel expressly rejected, in its reasons. And so, adopting the approach of considering, only, the consequences of the Adjustment Disorder, the rTMS treatment should be put to one side.
59As to whether the plaintiff’s account of pain could be brought into account in the assessment of “severity”, the defendant submitted that there was no opinion in evidence that even suggested that the Adjustment Disorder was a pain generator. It submitted that reference to the Panel’s Reasons showed that the Adjustment Disorder, initially secondary to pain, persisted despite resolution of the physical condition and so there was nothing in the Panel’s Reasons, nor in the earlier Panel’s Reasons, which would support a diagnosis of Somatic Pain Disorder or chronic Regional Pain Syndrome, and that each Panel had rejected this as an explanation.
60Further, the defendant submitted that even if complaints of pain were to be treated as consequences of the Adjustment Disorder, I was bound to find that they, in combination with the emotional consequences, are not such as to give rise to any incapacity for work.
61The defendant submitted that the Panel’s observation that the surveillance material was “not inconsistent with its diagnostic assessment” meant no more than that there was no medical condition of loss of function of the hands. In context, this represented the Panel’s agreement with the earlier Panel, that the surveillance was not consistent with the offered presentation,[33] a conclusion shared by Dr Phillips.
[33]The earlier Panel stated:
“The Panel considered that the actions depicted in the DVD were not consistent with Ms Durrant’s presentation and that the video demonstrate[d] no loss of function of the right or left hand.”
Of her presentation on examination of the right hand, the earlier Panel stated:
“When requested to demonstrate hand movements she displayed poor movements of thumb and fingers of the right hand. The Panel considered that Ms Durrant did not exert maximal effort in movements and when distracted she had normal thumb opposition and pincer movements.”
62The plaintiff submitted that to the extent that the Reasons of the Panel bore upon the opinion expressed, they too were binding upon me and so, on a reading of a section of the Reasons (a reference to the Panel’s concurrence with earlier opinions of the two rheumatologists concerning chronic Regional Pain Syndrome), I should find that the plaintiff suffers from actual pain, psychiatrically driven.
63The plaintiff submitted that it would be going beyond the requirements of the Act, and the opinion expressed to draw from the Panel’s finding, that the plaintiff had no incapacity for work, any conclusion about the level of symptoms the plaintiff experiences, and that as they were unchallenged, I should accept the plaintiff’s account of her symptoms, and her treating psychiatrist’s assessment of them, and of their severity, and that when I did so, I should readily conclude that the Adjustment Disorder is “severe” in the required sense.
64The plaintiff submitted that it mattered not that the plaintiff’s treatment was directed to a diagnosis that the Panel did not accept, the treatment is still directed to her anxiety and depressive symptoms (at the least) and, further, her willingness to persist with the transcranial stimulation, despite its adverse effects, pointed to her genuine experience of the symptoms described in her affidavits.
65The plaintiff relied upon Zhang v Joy Foods Australia Pty Ltd[34] and Noori v Topaz Fine Foods Pty Ltd[35] as showing the correct approach to psychologically-generated pain.
[34][2016] VSCA 199 at paragraph [67]
[35][2018] VSCA 323 at paragraph [35]
Analysis
66The plaintiff bears the onus of satisfying me that the Adjustment Disorder is permanently severe in the required sense.
67In my view, the requirement to adopt and apply, and to treat as final and conclusive, compels me to find that the plaintiff suffers from an Adjustment Disorder that is permanent, and that the Adjustment Disorder results in no incapacity for her former employment with the defendant. Further, it compels me to find that, apart from scarring, there is no current physical condition of the plaintiff’s right forearm or hand.
68As to whether the Adjustment Disorder is severe in the required sense, this is to be determined on the whole of the evidence. As to this, the applicable principles were not in dispute.[36]
[36]Mobilio v Balliotis [1998] 3 VR 833; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas (2017) CLR 550
69In the medical evidence, which includes the Reasons of the two Medical Panels, there is disagreement as to diagnosis and as to the gravity of the plaintiff’s mental condition. In particular, the opinion of the treating psychiatrist “cuts across”[37] the Panel’s opinion on the medical questions, in that she accepts that the plaintiff suffers from physically-caused pain and disability, and that this pain is significant in the causation and maintenance of a Major Depressive Disorder, the symptoms of which she rates as severe, and for which she has administered much treatment.[38] In her view, because of these conditions, the plaintiff has no capacity for any work at all. In her most recent report, Dr Tilakawardena explains[39] why it is that she disagrees with the Panel’s diagnosis and assessment of work capacity. The treating psychologist, broadly, takes the same view. In my view, Dr Tilakawardena’s view, and that of Ms Gabriel-Brennagh, to the extent that they disagree with the opinion of the Panel on the medical questions, are to be put to one side. I do not accept the plaintiff’s submission, that so long as some mental disorder is diagnosed, all of the reported symptoms, whether physical or emotional, should be regarded as resulting from it, and brought into account in the assessment of severity. To do so would be to fail to adopt and apply the opinion given on the medical questions that were referred to the Panel in this proceeding.
[37][2018] VSCA 35 at paragraph [87]
[38]cf Transport Accident Commission v Katanas (supra) at paragraph [23], quoting with approval the Victorian Court of Appeal’s observation at paragraph [20] of Katanas v Transport Accident Commission (supra)
[39]PCB 191
70In my view, the requirement to apply the opinion – that the plaintiff has no incapacity for work, at all – obliges a finding that the plaintiff has the physical and mental capacity to perform her former work in employment[40] in a sustained and reliable way, and carry out all of the mental and physical requirements of full-time employment, which, on the history given to the Panel, included some “hands on supervision”[41] of others. Once that finding is made, it is, when combined with the two Panels’ reservations as to the authenticity of her presentation, and my own, difficult to accept the submission made that I should accept in its entirety the plaintiff’s account of her physical and mental problems as, at face value, they would clearly prevent work in employment.
[40]Richter v Driscoll (supra)
[41]In discussions, Senior Counsel for the plaintiff queried this, but Dr Tilakawardena’s history also had it that the plaintiff was a “dispatch supervisor”
71There is in evidence no medical opinion that the plaintiff’s affidavit account of the experience of pain and disability results from or is materially contributed to by the Adjustment Disorder. I do not accept the submission that, by reference to the Reasons, I should find that the Panel accepted that the plaintiff suffers from “chronic regional pain syndrome”. This submission was founded upon a reference to this condition in earlier reporting (not in evidence here), and in my view, stands in contrast to the Panel’s agreement with the earlier Panel, which had expressly rejected any suggestion of a Chronic Pain Disorder or Somatic Symptom Disorder.
72The plaintiff’s mental state examination, recorded by the Panel (and in similar terms by the earlier Panel[42] (and by Dr Phillips[43])), showed the ability to give a coherent history without thought disorder, an affect displaying anxiety and depression, no psychotic symptoms, vague suicidal ideation only, and largely intact cognition, insight and judgement. In my view, these findings on mental state examination, and a retained capacity to work full time in her pre-injury employment, point against a finding that the Adjustment Disorder is severe.
[42]“· Ms Durrant presented as a 45 year old woman who looked her stated age, with a medium stature and overweight build.
· She had light coloured hair tied partly back, was reasonably groomed, and dressed in casual clothing and gave the general impression of adequately maintained self-care.
· She sat forward in her chair with no obvious agitation or discomfort and kept her right hand relatively immobile which was out of keeping with the video evidence available to the Panel.
· Her eye contact was consistent and engaged and she displayed a partially limited range of facial expressiveness, with occasional tearfulness but also the ability to smile at times. She was cooperative in demeanour and developed a modest but somewhat superficial rapport.
· Speech was of normal rate, volume, and prosody. Affect was variably depressed and anxious, with a reasonable range of emotion on display, and that this was well communicated and congruent with thought content. Thought form was normal. Thought stream was normal. Thought content was primarily occupied with worry about the future rather than her experience of pain.
· There was passive suicidal ideation evident throughout the interview. Perception was normal.
· Cognition, whilst not formally tested, was grossly intact as evidenced by normal orientation, short and long term memory recall. Insight was reasonable, with an understanding that her workplace experiences subsequent to the physical injury had significantly contributed to her emotional reaction. Judgement was somewhat affected by her mood state.” – PCB 35
[43]PCB 213
73Further, a number of histories and the plaintiff’s account, record that the plaintiff is able to care for herself, to cook, to care for her dog (though not groom), attend appointments, socialise in a more limited way and drive a car. True it is, that the plaintiff has undergone significant treatment of her mental state, but that treatment has been administered on the basis that she suffers from a Major Depressive Disorder, a diagnosis I am obliged to reject. There is no medical opinion to the effect that the Adjustment Disorder would warrant treatment at those levels.
74For these reasons, and after reviewing the whole of the evidence, it is my view that the plaintiff has not discharged the onus she bears of establishing that the pain and suffering consequence of the Adjustment Disorder, judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, is such as to be “fairly described as being more than serious to the extent of being severe”.[44]
[44]Section 325(2)(d) of the Act
- - -
6
13
0