Eroglu v Australian Leisure and Hospitality Group Ltd
[2017] VCC 1674
•17 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01992
| ZELDA SELIN EROGLU | Plaintiff |
| v | |
| AUSTRALIAN LEISURE AND HOSPITALITY GROUP LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 October 2017 | |
DATE OF JUDGMENT: | 17 November 2017 | |
CASE MAY BE CITED AS: | Eroglu v Australian Leisure and Hospitality Group Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1674 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – credit – Facebook material – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Acir v Frosster Pty Ltd [2009] VSC 454; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167;Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment:Applications dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R K J Meldrum QC with Mr P Skehan | Simon Legal |
| For the Defendant | Mr A D Clements QC with Mr M Clarke | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from February to April 2007 (“the employment period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(c) permanent severe mental or permanent severe behavioural disturbance or disorder … .”
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe” in an application pursuant to clause (c). Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.[3] Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
[3]at paragraph [846]
10 In Mobilio, Winneke P agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[4]
[4]see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect
11 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. She also relied on affidavits sworn by her sister-in-law, Gulay Eroglu, on 1 August 2014 and 21 February 2017. In addition, both parties relied on medical reports.
16 The severity of the plaintiff’s psychiatric condition is in issue; in particular, whether the work injury continues to contribute to her present condition, given the recent views of Dr Kornan and Dr Entwisle, who have seen extensive Facebook entries showing the plaintiff exhibiting a level of behaviour inconsistent with that deposed to and complained of to them.
17 The main submission on the plaintiff’s behalf was that she has no capacity for suitable employment on psychiatric grounds, as her treaters have opined and, as such, also has a serious injury in relation to pain and suffering.[7]
[7]Acir v Frosster Pty Ltd [2009] VSCA 454
The Plaintiff’s evidence
18 The plaintiff is thirty-nine, having been born in February 1978.
19 In the last year, the plaintiff has lived with her partner, Richard, and their two children. For a very long time before that, she was living with parents, save for her short marriage and a time with Richard when their daughter was born.[8]
[8]Transcript (“T”) 95; September 2001
20 The plaintiff started work with the defendant in November 2005 as a casual food and beverage attendant, and bistro assistant. From February 2007, she was a full-time bistro supervisor.
21 Prior to that, the plaintiff had worked at Abnet Registered Training Organisation for two and a half years. She worked for TC Vocational Institute for about six months as a traineeship administrator, and then for the Executive Company as a receptionist and administration coordinator.
22 The plaintiff had a break from work for about four and a half years, during which she had cosmetic surgery, travelled, and had a baby. She had a nose operation on 22 June 2001 for cosmetic reasons following an assault by her husband in 2007. She had further surgery on two other occasions following similar assaults.
23 The plaintiff worked with the defendant as a bistro supervisor at the Sands Hotel. She was eager to do well there, just as she had at the Waltzing Matilda Hotel, where she had worked previously. Prior to the employment period, the plaintiff did not have any claims for stress or anxiety.
24 In her first affidavit sworn in April 2014, the plaintiff deposed that as a result of her work during the employment period, she suffered a severe long-term mental and behavioural disturbance and disorder. She suffered from nausea and dizziness due to her medication. She had suffered severe disturbance and impact on her life due to her psychiatric condition, including Anxiety and Depression. She was a confident and dedicated worker who lost her confidence and was diagnosed with Depression and Anxiety due to her work.
25 During the employment period, the plaintiff was subject to bullying, discrimination, and threats. She made several complaints in relation thereto to the defendant. She was disrespected, neglected, harassed, victimised and threatened by staff members. She complained to Paul, the venue manager at the Sands Hotel, but he took no action in relation to her complaints about staff not listening to her and ignoring her.
26 The plaintiff was told by Paul that before she arrived, Robyn was promised her position, but due to her age and lack of experience, the job was not given to her.
27 The plaintiff complained about the bullying a number of times. Robyn wanted the plaintiff’s job and abused her within the second week she was at the Sands Hotel. Amber also ignored the plaintiff and ordered David around, even though she was meant to follow the plaintiff’s directions, as the plaintiff was her supervisor.
28 The plaintiff was highly motivated to work and only stopped doing so due to her injuries, which were caused by a lot of workplace stresses, none of which were resolved, causing an unhealthy, unsafe work environment with no support.
29 A very comprehensive statement by the plaintiff as to the circumstances of the bullying and harassment was tendered but was not referred to during the hearing.[9]
[9]Plaintiff’s Court Book (“PCB”) 76
30 The plaintiff first attended Dr Woo for work-related stress on about 1 March 2007. He had been her family doctor for more than fifteen years and had seen her for many years before she suffered her work injury.
31 The plaintiff developed secondary conditions in her stomach, and then other physical injuries following a fall[10] due to her suffering dizziness and loss of balance caused by medication for her psychiatric injuries.
[10]2009
32 As of August 2014, the plaintiff had had regular treatment from Dr Woo and occasionally other doctors at Springvale. She also had psychiatric treatment regularly with Dr Chong, and counselling from Ms Durmaz
33 The plaintiff had not been able to return to work since leaving the defendant’s employ. She had been receiving WorkCover weekly payments and had not been able to obtain alternative employment. She had been advised by her psychiatrist, psychologist, and Dr Woo that she was not fit to participate in any return to work plan or rehabilitation program.
34 The plaintiff had had ongoing pain and suffering and loss of enjoyment of life, with her condition having had a significant impact on her family and personal life. She had lost capacity in functioning, mentally and physically, due to her injuries. She had sleeplessness and loss of concentration. She had mood swings and anger towards other people at times.
35 The plaintiff was restricted in doing housework, and lacked energy and interest in doing activities, including socialising. She had had hair loss, headaches and many other symptoms.
36 The plaintiff had suffered a past and future loss of income and superannuation benefits. She had not received full compensation for her wages, receiving only 80 per cent thereof in weekly payments. She was then uncertain as to when she might be able to work. She had attended vocational assessments, but had been unable to return to work.
37 The plaintiff swore her second affidavit on 12 February 2017.
38 In that affidavit, the plaintiff referred to the Facebook material and photographs which the defendant obtained “without her consent”. Many of the photographs were several years old. The plaintiff saw Dr Entwisle after that material was obtained, but he did not discuss it with her on examination.
39 The plaintiff detailed a number of inaccuracies in Dr Entwisle’s report.
40 The plaintiff now lived with her partner, Richard, for financial reasons, and also because he is her Centrelink carer, and helped look after their two children. While her living arrangements have changed, the plaintiff still relied on other people to help her every day. Her family dispensed her medication, which had a sedative effect on her. There was not a risk to her children’s welfare as they were well looked after.
41 The plaintiff did not watch a lot of television because of the sedative effects of her medication. She would prefer to lead a normal life, as she did pre injury, but could not do so.
42 The plaintiff was unhappy almost all the time, and suffered financial hardship because she was not working, and was in receipt of Centrelink benefits.
43 The plaintiff saw Dr Chong regularly and his treatment was designed to help her feel better and happy with herself again. He had been recommending she get out of the house, lose weight and interact more with her children.
44 The plaintiff had difficulty driving, and suffered vertigo-like symptoms due to her medication.
45 The plaintiff went on a trip to Turkey and Greece between July and September 2015 with family members. She travelled on the recommendation of her doctors and psychologist. She tried to enjoy herself, but she was up and down, and had her moments.[11]
[11]T99
46 The plaintiff did not tell Dr Entwisle that her partner, Richard, has to pick up and answer the telephone. She told Dr Entwisle that her family had opened a Facebook account in her name to help her socialise a bit, and interact with family and friends, but she did not personally use the account.
47 The plaintiff wore sunglasses on top of her head when she saw Dr Entwisle, and almost always wore black clothes when she went out. In the Facebook material, the various activities shown were family birthdays, and the photographs taken and posted on Facebook were by the plaintiff’s family, including her sister-in-law.
48 The plaintiff was prescribed medication by Dr Chong and Dr Woo, whom she regularly saw, and she also received counselling from Ms Durmaz.
49 The plaintiff had been certified as being not fit or well enough to participate in a computer course arranged by Gallagher Bassett and job-seeking and vocational assessments with AMS.
50 The plaintiff left her first marriage in 1997 of her own free will and the break up did not actually affect her greatly. She moved on with her life and formed other relationships. She was nineteen when first married.
51 In 2001 and 2002, the plaintiff suffered mastitis after her child’s birth, and chronic pain during the pregnancy. She was provided with Centrelink certificates in 2001 and 2002. She was not on antidepressants at that time, and was not referred to a psychiatrist.
52 The plaintiff had only recently found out she was diagnosed by Dr Woo with Depression in 2001-2002. She was depressed after the birth of her children. She had been conscious of being depressed since her work injury.[12]
[12]T16
53 The plaintiff gave confusing answers as to why she was certified unfit for work due to Depression in 2001-2002. She denied her Depression in 2001-2002 was quite bad, but then agreed she was unable to work at that time due to Depression. She was sad because she had a kidney infection and was admitted into hospital. She denied she had a significant depressive illness which stopped her from working for two years. She had last worked at Abnet in 2000.[13] She was not working because of her other medical condition.[14]
[13]T67
[14]T69
54 Whilst this may be a credit issue, I do not consider this is an aggravation case, nor was it suggested by counsel for the defendant this was the case.[15]
[15]T69
55 In 2003, the plaintiff was diagnosed with cysts on her ovaries, and had two operations in relation thereto.[16]
[16]T32
56 In 2014, the plaintiff had an operation at Moorabbin Hospital to remove ovarian cysts. The surgery was successful but she thought, thereafter, that her bladder problem had worsened, although she did not believe her bladder or bowel had been damaged.[17]
[17]T34
57 The plaintiff denied she told her urologist, Mr Pan, her bladder was stretched to 1.2 litres in the 2014 surgery when she saw him earlier this year. She agreed she had problems with urine retention after that surgery, and there was a worsening of her bladder problems, but she did not think it was caused by that surgery, having had bladder problems before then.[18]
[18]T35
58 The plaintiff had a cystoscopy at Cabrini Hospital on 25 January 2017. She required this procedure because of bladder retention and a stretched bladder due to her medication. She thought these problems could be caused or contributed to by the medication she has taken for her work injuries over many years.
59 The plaintiff first saw Mr Pan in January 2017. She had also been referred to Dr Jopling in Brighton, who thought she was suffering from ovarian cysts.
60 Mr Pan concluded the plaintiff continued to suffer from discomfort in the lower abdomen, which was unlikely to resolve
61 The plaintiff swore a third affidavit in June 2017.
62 The plaintiff has attended vocational assessments arranged by WorkCover, and has not been able to return to any employment. She has no current capacity to return to her previous employment duties, either on a part-time or full-time basis.
63 The plaintiff has been advised by WorkCover assessors she has no capacity to return to her pre-incident duties, and, unfortunately, has not been able to find any alternative suitable employment.
64 The plaintiff confirmed that last year, she cooperated with AMS, the vocational assessor.[19] She did not attend two appointments with AMS as she was unwell.[20] She would have obtained a certificate to cover these absences and remembered doing so.[21] She did not do the recommended computer course because her doctor advised she was not fit to do so.[22]
[19]T74
[20]T72
[21]T74
[22]T73
65 The plaintiff denied she could not do the suggested jobs because of her bladder problem. She is unfit due to her Depression.[23]
[23]T77
66 The plaintiff agreed there had been no attempts to return to work since leaving the defendant’s employ in 2007. Following that time, she received weekly payments for about ten years.[24] She denied she had no motivation to return to work as she was in receipt of payments. She was following her doctor’s advice. She denied she exaggerated her disability to increase her chances of staying on weekly payments.[25]
[24]T70
[25]T71
67 At that stage of the hearing, the plaintiff became upset and there was a twenty-minute break.[26]
[26]T71
68 Since ceasing work with the defendant, the plaintiff has been taking a range of medications to treat her psychiatric injury. Antidepressants include Seroquel, which has been prescribed for many years.
69 The plaintiff has been recently advised by her treating doctor that those medications which are directly related to her workplace injury, have had a serious effect on her health, such that she has now developed a serious urological condition where she cannot fully empty her bladder.
70 The plaintiff deposed that she now had to use a catheter to urinate, and had to do this at least twice a day or more for the rest of her life.
71 The plaintiff had also been advised there was a risk of injury to her kidneys, bladder and urethra. That advice had exacerbated her Depression, Stress and Anxiety, and her doctor now tried to manage the condition by reducing the intake of antidepressants and stopping Seroquel.
72 The plaintiff’s Depression, stress and anxiety has worsened due to her added diagnosed bladder condition. In the past, she had minor bladder problems, typical of bladder conditions experienced by most women.
73 These earlier bladder problems occurred in 2001. Dr Woo then organised a test at Monash Health before the birth of the plaintiff’s first child when the plaintiff had a kidney infection. The plaintiff had a further test two or three years thereafter.
74 While a test report of July 2001 described the plaintiff as retaining urine after urinating, she was told that result but that was not how she was feeling at the time and that is why she then did not see a urologist.[27]
[27]T34
75 The plaintiff’s current urinary condition is described as an atonic or dead bladder and is permanent. She has been told it is related to medication that she is taking due to her work injury. She has been advised that in the future she will have to undergo further surgical permanent catheterisation treatment to try to better manage her permanent bladder condition, which is expected to deteriorate over time.
76 The plaintiff deposed she feels devastated that she has to use a catheter for the rest of her life and there is no cure for this condition. She is having difficulty coping and understanding her serious bladder condition. She constantly feels like her bladder is going to burst, and needs to go to the toilet frequently, but only voids small amounts at a time. She has abdominal pain and bloating. She feels and looks terrible. It is a very difficult condition to try to live with on top of her current psychiatric and physical condition, and she feels like crying all the time.
77 In examination-in-chief, the plaintiff confirmed that she does not, in fact, use a catheter because she is scared to do so. She cannot deal with it emotionally and physically at the moment “with the infections that will happen” but she may use a catheter in the future.[28]
[28]T18
78 The plaintiff denied that she had no intention of undergoing that procedure and just gave the impression that this was the case. She is just not ready to use a catheter at the moment, but she does intend to do so in the future.[29]
[29]T36
79 Having complained that Mr Syme had not examined her before providing a medico-legal report, the plaintiff denied that she did not want to attend him on the two subsequent examinations that were arranged.[30]
[30]T38
80 The plaintiff currently takes Lyrica, Tramadol, over-the-counter painkillers, Zantac, Nexium, Panadeine Forte, Nurofen Migraine and Nurofen Zavance, as well as the Effexor, 225 milligrams.
81 The plaintiff takes strong painkilling medications for her back and neck pain, and also headaches. The medication is not really mainly for her lower back and neck, it is also for her head and her migraines. If she has a migraine, which occur often, she has to take Panadeine Forte.[31]
[31]T20
82 The plaintiff alternates Panadeine Forte with Tramadol for migraines and lower back pain. She may have told doctors she took up to six to eight Panadeine Forte a day and that may have been because that was the case since 2009.[32] However, she now could take up to six tablets a day.[33]
[32]T19
[33]T20
83 Lyrica, prescribed by Dr Woo for the plaintiff’s nerve pain in her lower back, makes her feel drowsy and less alert, depending on the intake. Tramadol has the same effect.[34] The plaintiff takes Lyrica when she needs it, but she could not say that she took it on any regular basis, it was just when the pain was bad.[35]
[34]T20
[35]T31
84 The plaintiff could remember being prescribed Endone in February this year, but could not remember what it was for. She could not recall if it was for her lower back pain.[36]
[36]T78
85 The plaintiff has tried to lose weight over many years without success, and believes her weight is related to her psychiatric injury.
86 The plaintiff continues to see Dr Chong for treatment every two or three weeks, and Dr Woo every fortnight or so, and sometimes weekly. She also has to see Mr Pan for regular check-ups.
87 Dr Woo has recently prescribed Keflex for a kidney infection the plaintiff suffered due to backflow from not being able to urinate fully. This related to constant bloating and abdominal pain the plaintiff had had for several years which had only recently become troublesome.
88 The plaintiff was cross-examined at length about her lumbar condition which was referred to indirectly in her first affidavit in which she described a fall as a result of her medication.
89 The plaintiff disagreed her lower back pain was a bigger problem than her migraines. When she has a migraine it “hits her stomach”. Her migraines are not associated with her neck pain.[37]
[37]T21
90 The severity of the plaintiff’s current lower back pain varies. When it hits the back of her legs, it is very bad, and sometimes “creeps” up to her neck.[38]
[38]T21
91 The plaintiff was asked about the history to Dr Stockman of constant low back pain when examined in 2010. She told him about a fall in early 2009. She did not have pain constantly for the whole year. She told him she had been suffering from back pain, but cannot have said it was constant, because it was not every day. It had its moments.[39] She may have told him she was having very frequent episodes of very acute lower back pain lasting one to three weeks. That situation had continued.[40]
[39]T22, T24
[40]T24
92 The plaintiff agreed that she would have told Dr Stockman on re-examination in February 2015 that she was quite disabled because of back pain and that it was then her main problem. She told him that as this was the problem he could help her with. She agreed that situation had continued since 2010.[41]
[41]T25
93 The plaintiff agreed, at the present time, when she has back pain, it is very disabling. She had pain in her lower back every day, but it was not bad enough to take strong painkillers. She took painkillers for the pain in her abdomen and head that was worse than her back pain.
94 The plaintiff has headaches three to four times a week that turn into migraines. She has had these problems since the work injury as she was stressed and upset, and sad and hopeless. The headaches had nothing to do with the fall. Her abdominal pain was related to her bladder issues.[42]
[42]T27
95 The plaintiff’s back is one of her problems, but not the only problem since 2009. She then agreed it is a very big problem for her when she has pain. She might have told Dr Chong in July 2016 that she had very bad lower back pain and that it was making her agitated and anxious, because it does.[43] “Of course,” the pain also made her depressed, and limited her daily activities to a point, but the plaintiff emphasised it was the Depression that had more of an effect on activities like housework.[44]
[43]T27
[44]T28
96 The plaintiff then denied that she told Dr Stockman in 2015 that she had constant lower back pain since she had previously seen him. There was some misunderstanding. She denied that back pain prevented her from doing housework and cleaning. It restricted her, but it was her Depression that prevented her engaging in these activities. She did not do those activities anyway because of her Depression. She denied her lower back and neck pain stopped her from working.[45]
[45]T28
97 When the plaintiff saw Dr Stockman in February 2015, she was resting and required a lot of assistance from her parents. She had put on a lot of weight because of her Depression, not due to her back condition.[46]
[46]T29
98 The plaintiff disagreed that if she was fine psychiatrically, she would not be able to work in her old job because of back and neck pain, taking Panadeine Forte six times a day. She does not take that level of medication every day. She could try to do her old job, although she would still have a problem with her bladder.[47]
[47]T29
99 The plaintiff saw Dr Kornan only once for a medico-legal assessment in May 2016. That appointment lasted for about fifteen minutes and she had not seen him to discuss or be shown the Facebook material. She formally complained to the Victorian WorkCover Authority (“VWA”) about Dr Kornan and believed this complaint had been provided to the VWA’s solicitor.
100 Neither Dr Entwisle nor Dr Kornan at any time asked the plaintiff about the Facebook material which the plaintiff described as improperly obtained by the VWA.
101 When the plaintiff last saw Dr Entwisle in 2016, he told her he would ask the questions, and she was to respond only to them. At no time did he ask her to comment on the Facebook material.
102 The plaintiff had a private Facebook page in about 2015, which she did not set up.[48]
[48]T39
103 The plaintiff tried to do her best to answer questions put to her by doctors and she told the truth. She denied exaggerating.[49] They asked her questions, and she answered them.[50]
[49]T40
[50]T41
104 The plaintiff denied exaggerating her situation to Dr Entwisle on examination in October 2012. That was “what she was living” at that time.[51] She confirmed a lot of Dr Entwisle’s history, but denied it was an exaggeration that she had no social contact. She kept stressing her answers related to how she was feeling at that time. She did not like to socialise.[52] Whilst he noted she did not go out, that was for that day or week he was talking about. She might have told him she was tearful all the time and she would have told him she had no interests or enjoyment.[53]
[51]T41
[52]T42
[53]T43
105 The plaintiff denied she gave these answers because she wanted Dr Entwisle to believe that due to her psychiatric condition, she did not go out. She denied she did not provide a true account of her day-to-day functioning and that she was exaggerating her situation, and that she wanted to make him think she had a severely disabling psychiatric illness.[54]
[54]T43
106 On examination in November 2014, the plaintiff did not tell Dr Entwisle that she does not walk, because she did.[55] She did not say she does not go shopping; she would have said she did not like going shopping. She did not tell him she did not go out of the house. She did not tell him she did not see anyone, because she was seeing her family. She denied, she said, on weekends, she did not socialise as during that time she saw her family. She could not remember saying anything like “every day is the same for me”.[56]
[55]T43
[56]T44
107 The plaintiff might have said she could not be involved with her children, but not that she was not involved in their activities. She would not have said she avoided people or that she did not want to go outside. It was a struggle for her to go outside, and she had withdrawal symptoms.[57]
[57]T45
108 The plaintiff disagreed that she was attempting to give Dr Entwisle a misleading description of how disabling her psychiatric condition was and that she wanted him to think she was much more severely disabled than she was. The plaintiff denied that she presented in a similar way when she saw other doctors.[58]
[58]T45
109 The plaintiff denied she told Dr Kornan in November 2013 that she pretty much remained constantly in her room. It was not right she was constantly in her bedroom; she would go to the toilet, or the bathroom, and the kitchen. Some days she spent most of her day in the bedroom.[59]
[59]T46
110 The plaintiff denied exaggerating problems in her home life and restrictions to Dr Entwisle and Dr Kornan. She denied that she, in fact, had had a capacity to work for many years.[60] She disagreed that she feigned her illness, as Dr Entwisle described.[61]
[60]T71
[61]T90
111 The plaintiff was cross-examined at length about numerous entries on her sister-in-law’s Facebook page.
112 The plaintiff denied she had spent a lot of time analysing the Facebook material, but she had compiled a document in relation thereto to give to one or more of her doctors.[62]
[62]T47
113 If the plaintiff’s “tag” appeared on an entry in her sister-in-law’s Facebook page with a photograph, it did not necessarily mean the plaintiff was present when a photograph was taken – “it is just to put it on the wall”.[63]
[63]T48
114 The first entry was on 25 February 2012 with a picture of a shark made of sand at Frankston beach. There was a comment from the plaintiff’s Facebook account but she did not post anything on that date. She did not know if she was there; she might have been.[64]
[64]T47
115 On 27 February 2012, there were photographs of a young girl, Nari’s, birthday. The plaintiff was not at the party. While there was a post “my beautiful butterfly” attributed to the plaintiff, she did not post it on Facebook. It was either her mother or her partner who go into her Facebook page. The plaintiff “does not go in there and type, or, like, anything like that”.[65]
[65]T49
116 The plaintiff “guessed” her partner, Richard, does not have a Facebook page. She then said she did not know if he had one, but doubted it. Although she lived with him, he had never shown it to her, so she did not know. She then said she believed he did not. She has not gone and searched if he has or has not, and does not care whatever the case.[66]
[66]T50
117 On 8 April 2012, “Easter”, there was a photograph of the plaintiff at her home, wearing bunny ears.
118 There was a photograph of the plaintiff at Moomba in March 2012, to which it was posted it was the plaintiff’s nephew, Emra’s, first ride. Whilst the plaintiff was shown in the photograph sitting in the ride with her nephew and other children, she did not go on the ride.[67]
[67]T51
119 On 20 May 2012, the plaintiff was shown smiling in several photographs with her sister-in-law and her brother’s girlfriend. The plaintiff did not agree she was socialising. She was at home with her family. It could have been her younger brother, Ufuk’s, birthday that day.[68]
[68]T51
120 When it was put to the plaintiff that she was participating in a family celebration, she said “it was at home”. She denied it was a celebration. It was her brother’s birthday and they were all home together. She was with her family, and her family was always at her home.[69]
[69]T51
121 The plaintiff denied she was reluctant to agree she was participating in the gathering, when just saying it was at home. She agreed she was not lying in bed when other people were having their photographs taken.[70] She may have been lying down before that, as the celebration did not go all night.[71]
[70]T52
[71]T52
122 The plaintiff agreed she was shown in one of those photographs holding a Vodka Cruiser. She does not drink. She was holding the bottle just for the photograph. She was socialising, maybe, for a short time.[72] She did not post “happy birthday Ufuk”. She denied she had a fantastic time at her brother’s birthday.[73]
[72]T53
[73]T50
123 A post in the plaintiff’s name on 2 July 2012 – “1 2 3 4 Here we come Pitbull !!xxxx” ended with “Crawford”, because that is her partner Richard’s name.[74] That post came when Gulay tagged the plaintiff in it. Someone else went into the plaintiff’s account and commented. Someone was going on to the plaintiff’s tablet, and their post was attributed to her.[75]
[74]T53
[75]T54
124 The plaintiff agreed there were photographs of her at her nephew, Emra’s, first birthday at a play centre on 7 July 2012. When asked was she able to get up, get dressed and go along to the party, the plaintiff said, “eventually” she did.[76]
[76]T55
125 On 21 July 2012, there was a photograph of a ticket for a Pit Bull concert on 27 August 2012. The plaintiff went to the concert at Rod Laver Arena with her sister-in-law and two friends. There was a photograph of the plaintiff and her friends on the night of the concert outside the venue.[77]
[77]T56
126 The plaintiff frequently attended rock concerts before her injury, but since, had only gone to the Pit Bull concert, as she did not like leaving the house although she tried.[78] However, that night, she did not handle the crowd well. She was nervous, and she felt like everyone was looking at her. Her sister-in-law was encouraging the plaintiff to go as it was the plaintiff’s favourite singer.[79]
[78]T101
[79]T81
127 The plaintiff did not stay for the whole concert, lasting only about an hour. She felt like she was suffocating, she was anxious and shaking and just did not feel right. She felt nauseous and just wanted to go home.[80]
[80]T103
128 The next photograph was taken on Boxing Day at the plaintiff’s home in 2012. She did not know what the post attributed to her “had a fantastic night the night before” meant. At Christmas 2012, there were family around. The plaintiff did not prepare the meal and could not remember helping out at all.[81]
[81]T58
129 There was a photograph of the plaintiff wearing a mask on 10 February 2013 at her brother’s house. The plaintiff was not out socialising the night before it was taken as a post suggested. It was a surprise party for her. When asked whether she enjoyed it, she said she was shocked and surprised, but did not enjoy it because of the way she was feeling, because she was on crutches and had a sore foot, having sprained her toe. She explained, in later photographs, she would not have been shown holding crutches.[82]
[82]T58
130 The plaintiff agreed there was a photograph posted on 2 January 2013 of her on roller skates, but that was ages ago, in the early 2000s. It was a very old photograph. She denied it was more recent. Her sister-in-law might have posted it to remind the plaintiff it was an activity she used to do.[83]
[83]T59
131 The plaintiff’s family created and operated Facebook for her to start socialising because she had had suicidal attempts and thoughts and the doctors were advising that she needed to socialise and go out. Her family needed to push and encourage her, and that is why they opened the Facebook account.[84] It was just an encouragement – “look how happy you are”.[85]
[84]T59
[85]T60
132 The plaintiff agreed there were a number of photographs of her surprise birthday party, which was a mask party on 10 February 2013. She was not sure whether she was then on crutches but agreed in one photograph, she was leaning back with both arms up in the air, with no sign of crutches.[86]
[86]T60
133 The plaintiff was then cross-examined about a trip to Bali in February-March 2013 for her birthday. Her family group stayed at the Grand Mirage Hotel. Two photographs showed the plaintiff and her family outside the Rama Theatre at that resort.[87]
[87]T79
134 The first Bali trip was for a week, during which the plaintiff did not do any touring.[88] Before she went on that trip, her Depression was severe. She was a bit calmer while away, but was up and down.[89] She had some calm days in Melbourne around that time.[90]
[88]T96
[89]T97
[90]T98
135 There were a number of photographs of Christmas Day 2013 at the plaintiff’s home. It appeared from the photographs that she was enjoying herself, holding a drink. She denied this was the case. She confirmed she does not drink.[91] Her family wanted her to hold the bottle for a picture. She could not remember that day, but she followed instructions as to how to pose for the photographs.[92]
[91]T80
[92]T81
136 The plaintiff went to Bali again later that year. She had to go because it was Richard’s fortieth birthday. The family group stayed at the same hotel for almost a week or two. The plaintiff did not go on any tours.[93] Her Depression was severe in that time and she had panic attacks. Her condition was up and down like a yo-yo, much the same as it had been in Melbourne.[94]
[93]T80
[94]T98
137 The plaintiff denied she was shown dancing in a photograph on that trip on 29 November. She was standing, and not dancing. It looked like she was enjoying herself in that photograph, and she tried to. She does not dance and was not dancing.[95]
[95]T82
138 The plaintiff denied she was having a good day on Christmas Day 2013 as photographs of her that day suggested. She denied she did not want to admit she was enjoying herself because she thought it would damage her case.[96] She tried to have a good time and enjoy herself, but was not doing so, because she was not feeling well.[97] Again, she stressed the function was at her home.[98]
[96]T83
[97]T84
[98]T85
139 The plaintiff was then asked about photographs which appeared to show her enjoying her father’s birthday at home on 31 January 2014. She again stressed that the function was at home.[99]
[99]T85
140 The plaintiff agreed she was shown at the zoo with her family on 9 March 2014. She has been to the zoo once since she stopped work, because she does not feel like going out. It was the children’s idea to go. They were there for a few hours, and she did not remember much about that day.[100]
[100]T100
141 The plaintiff could not remember what she did later that day. She could not remember going to Moomba.[101] She thought a photograph of her at Moomba posted on Facebook could have been from another year; she just did not know.[102]
[101]T87
[102]T87
142 It was suggested to the plaintiff she wanted to raise the possibility the Moomba trip was many years before her work claim, but the plaintiff denied this was the case. Her doctors encouraged her to go out. She did not know if she went to Moomba in 2014.[103]
[103]T88
143 The plaintiff has been to Moomba once or twice. The time she could remember, she stayed there for a short time and did not watch the parade. She went at her children’s request.[104] She did not like going to places like the zoo or Moomba because she did not feel comfortable. [105]
[104]T100
[105]T101
144 The plaintiff was shown in a photograph smiling at her nephew’s third birthday party on 6 July 2014.[106]
[106]T89
145 The plaintiff did not put up the posts on these Facebook entries. Someone else gained access to her account and posted them. She knew that was the case, because she did not do it.[107] She did not know what the point was of putting up the posts.[108]
[107]T89
[108]T90
146 In re-examination, the plaintiff explained she had never posted anything on her Facebook page in her name. She had nothing to do with opening her account and only knew of its existence when informed by her family. She did not know when this occurred.[109]
[109]T93
147 The plaintiff could not remember, but there had been times when she looked at her Facebook page, whenever her family showed it to her. She had never gone to look at it herself because it does not interest her. She has not asked for photographs to be taken for Facebook.[110] When photographs are taken, she is told whether to smile and where to stand.[111]
[110]T93
[111]T94
148 The plaintiff does not feel like drinking and was not drinking in any of the photographs.[112] All family birthdays are celebrated at home.[113] The plaintiff does not go with her children to their friends’ houses.[114]
[112]T94
[113]T95
[114]T103
149 The plaintiff tries to avoid going shopping, but is encouraged to do so by Richard. He answers the telephone and the door.[115]
[115]T104
150 The plaintiff did not get any pleasure when seeing those Facebook photographs, “because it was not her”, because some of the photographs show her looking like she is having fun, and “it is just not like that.”[116]
[116]T105
Lay evidence
151 The plaintiff’s sister-in-law, Gulay Eroglu, swore her first affidavit in August 2014.
152 In that affidavit, Gulay described being a co-worker of the plaintiff in the defendant’s employ and the circumstances of the harassing and bullying alleged by the plaintiff.
153 There was no mention in this affidavit that the deponent was related to the plaintiff.
154 Gulay swore a further affidavit on 12 February 2017 in which she deposed she is the plaintiff’s sister-in-law.
155 Gulay referred to the reports of Doctors Chong, Dumez and Woo which she believed were correct.
156 The Facebook material and photographs were obtained without her consent or that of the plaintiff. The material was private and many of the photographs were several years’ old. They were posted by her or other family members and not by the plaintiff.
157 Gulay set up the Facebook page for the plaintiff for her to be able to communicate, socialise or interact with family or friends and for her to look at things that were happening with family and friends.
158 The plaintiff is often bedbound at home and Gulay would often show her Facebook whilst she was in bed. The plaintiff’s doctors had told her to socialise and try to interact with family and friends. The plaintiff did not do much of that at all since she was injured and stopped work.
159 Gulay also used her Facebook page for work as a hairdresser. The plaintiff has not used Facebook for her work and rarely accesses it herself, depending on Gulay to show her what is on Facebook. She just puts posts up, not the plaintiff.
160 The plaintiff does not watch a lot of television because of the sedative effects of the medication she takes for her injuries. In the Facebook material, the various activities were for family birthdays, and photographs taken were posted on Facebook by Gulay and other family members.
The Plaintiff’s medical evidence
161 The plaintiff has been a regular patient of Dr Woo’s clinic in Springvale South since June 1999. She presented to him on 1 March 2007 with moderate stress that had arisen from incidents at work at the Sands Hotel.
162 The plaintiff was diagnosed to have reactive Depression and Anxiety, and was referred to psychiatrist, Dr Chong.
163 The plaintiff had stress leave from April to May 2007 as a result of the stressful situation at work. Dr Woo thought she had developed migraine, headache, stomach ache, nausea and tearfulness, and she was put on Endep.
164 Dr Woo noted the plaintiff continued to have the same symptoms and signs suggestive of moderate Anxiety and Severe Depression from 2007 to 2009. She continued to see Dr Chong. She presented regularly over the following years, complaining of persistent Depression with insomnia, nausea and panic attacks.
165 The plaintiff was certified unfit to attend any vocational assessments by Dr Woo in April 2014, and Dr Tang in September that year.
166 On 8 July 2014, Dr Woo certified the plaintiff had been suffering from Severe Depression with psychotic symptoms and extreme Anxiety, and was not mentally fit to attend any vocational assessment.
167 In his September 2014 report, Dr Woo noted the plaintiff was suffering from work-related stress and Depression, severe, as a result of conflicts at work. He considered she was unfit for work then, and unlikely to be fit for any type of work over the next few years, and she required psychiatric treatment.
168 When Dr Woo reported in September 2016, the plaintiff’s Major Depression remained the same. She continued to be stressed when talking about past events in relation to WorkCover claims. She continued to have nightmares, sleep disturbance, lack of motivation, flashbacks and nausea. She said she felt nervous all the same and she felt depressed, sad and lonely.
169 The plaintiff reported she was constantly reliving the incidents about her work situation. She also had some insomnia and nausea, and felt tired all the time. She had trouble concentrating, and had frequent migraines. She had shown social withdrawal and had suicidal thoughts from time to time, with no planning.
170 When the plaintiff started to talk about her work and past work situation, she became highly emotional, vocal and stressed, and clearly appeared stressed and depressed. Dr Woo noted the plaintiff had shown a clear pre-occupation with the past and unpleasant work experiences.
171 Dr Woo thought the Anxiety and Depression resulted from work, with no outside or hereditary factors. The plaintiff had some recent stressors from recent surgery, back pain and family stressors; however, he thought they did not contribute to any significant degree to her Anxiety and Depression, the main problem being preoccupation with work-related stress and Depression. He thought there was no sign of functional overlay and that the plaintiff had not responded to treatment which was adequate. He considered she was unfit for work, and likely to be unfit for any type of work over the next few years.
172 In relation to her home circumstances and the Facebook material, Dr Woo could only state the plaintiff had been consistently found to be in a depressed state. He had not been aware of any exaggeration of her symptoms or any signs she might be faking her symptoms or signs.
173 Dr Woo sees the plaintiff’s family regularly, her parents and brothers, and has treated them regularly as a family doctor and is not aware of any improvement in the plaintiff’s Depression. In fact, her mother has informed that the plaintiff was having problems coping with her daily activities. To the best of Dr Woo’s knowledge, the plaintiff has not been back together with her ex-husband, Richard. As treating general practitioner, he has consistently encouraged the plaintiff to get out of the house and try and get involved with the community and other family members and, also on many occasions, encouraged her to visit Turkey as he felt the visit would help her Depression.
174 Dr Tang at Springvale provided a Certificate of Capacity, certifying the plaintiff unfit for any vocational assessment from 5 September to 5 December 2017 on the basis of “headache, nausea, insomnia due to stress at work, neck and lower back pain in both hands and wrists, stress/depression; soft tissue injury to neck, discogenic back pain”.
175 On 26 February 2010, the Medical Panel concluded the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood, relevant to her stress condition injury. In its opinion, the plaintiff had no current work capacity and that was likely to continue indefinitely.
176 On 10 July 2009, the Panel accepted the plaintiff had a 5 per cent whole person impairment relating to stomach problems, and 15 per cent from the accepted psychological condition.
177 The plaintiff first saw Khai Wong for counselling in May 2007. That practitioner reported in July 2007, noting the plaintiff presented with depression and anxiety symptoms as a result of her work situation.
178 Dr Chong, psychiatrist, first saw the plaintiff in June 2007, when she complained of problems of bullying at work at the Sands Hotel.
179 The initial diagnosis in July that year was Major Depressive Disorder, single episode, moderate severity, directly related to the plaintiff’s work. Dr Chong thought the plaintiff was then unfit for any work due to her psychiatric condition.
180 The plaintiff had not improved when Dr Chong reported in late October 2008.
181 Dr Chong reported to the Accident Compensation Conciliation Service on 5 January 2015. He subsequently reported on a number of occasions, most recently in November 2016.
182 Dr Chong thought the plaintiff suffers from chronic pain – neck and back – and depressive distress symptoms consistent with Major Depression – chronic. He thought psychological factors probably contributed to her Pain Syndrome. He noted stressors relating to the WorkCover process contributed to her current distress and mental condition.
183 Dr Chong thought the plaintiff also suffered from enduring patterns of experience behaviour consistent with underlying self-defeating Personality Disorder, for example anxious, highly emotive, intense, angry and hostile if she perceived that she had been wronged. She was an unstable person, a brittle self that was vulnerable to fragmentation with strength.
184 Dr Chong noted the Major Depressive Disorder of moderate severity – chronic – had worsened since February 2016 because of issues associated with the WorkCover process.
185 Dr Chong commented on Dr Kornan and Dr Entwisle’s comments following the Facebook material.
186 Dr Chong agreed that a good history that is truthful, reliable, relevant and complete given by a patient to her doctor psychiatrist is very important for an accurate assessment of diagnosis, function and work capacity, and also in treatment.
187 Dr Chong did obtain from the plaintiff, in mid 2007, a history of Depression for a few months when her marriage failed when she was twenty, but not of her Depression in 2001 and 2002.
188 Dr Chong thought a session once a month, unless in a crisis, should be adequate. He considered the plaintiff’s psychiatric condition was chronic and likely to remain the same, with fluctuations.
189 Dr Chong thought the plaintiff’s impaired capacity for employment was likely to continue indefinitely. He noted there were currently other factors contributing to her work incapacity, namely WorkCover issues and disputes, and compensation matters, personality issues, chronic pain – neck and back – and negative attitude, motivation regarding work. He noted some of these factors – for example WorkCover compensation issues – may resolve, or work motivation may change in the near future (many months, maybe a year) and, if so, the prognosis may improve. He thought it difficult now to be certain that the long duration of her condition incapacity of nine years and poor response to treatment so far suggests a poor prognosis and a degree of permanent impairment is likely.
190 At that stage, Dr Chong thought the plaintiff was not currently unfit for any employment. He considered her psychiatric condition was chronic and likely to remain the same, with fluctuations.
191 Having seen the Facebook pages provided by WorkCover and the opinions of Dr Kornan and Dr Entwisle in relation thereto, Dr Chong remained of the view the plaintiff was not misrepresenting her condition and was incapacitated for suitable employment.
192 While the plaintiff looked happy and normal in the Facebook photographs, she explained these were taken at home on her birthday and her Dad’s birthday in 2013 and 2014. She smiled and looked bright and jolly for those photographs, because that was the normal thing to do. It did not mean she felt bright and happy at that time, and she alleged she did not.
193 Dr Chong thought the plaintiff’s explanation “can be believable”. The material appeared to demonstrate a normal mental state at those moments when photographs were taken, but unless those moments were natural and not posed, and consistent within her experience, current and prolonged enduring lasting hours, days, weeks or months, he was not persuaded the plaintiff’s mental condition had resolved, or that her presentation to him in July and September 2016 was feigned or deliberate misrepresentation.
194 Dr Chong thought the plaintiff was a highly emotive, labile and insecure person, whose manner of perceiving and interpreting was negative and was very much influenced by her emotions and beliefs. She was currently upset, angry, depressed and anxious. She judged her pains to be very bad, her brain tired, and herself to be so mentally injured due to work, that she was unfit for all work. She believed the independent assessment and views that her illness was feigned and that she did not have a psychiatric disability were wrong, and she felt, in her mind, justifiably angry and distressed about it. He believed that was how the plaintiff felt, perceived, and thought of self, others, events. He thought that she was currently not fit for the employment options.
195 The plaintiff first saw psychologist, Ms Durmaz, in June 2014.
196 As of July 2014, Ms Durmaz considered the plaintiff was not fit and capable of engaging in rehabilitation and vocational training due to problems with memory and concentration, decision making and loss of sleep.
197 In February 2015, Ms Durmaz thought the plaintiff fulfilled the criteria for Major Depressive Disorder and was unfit for work.
198 As of July 2016, Ms Durmaz considered the plaintiff was not fit to start a computer course because of her Anxiety and Depression.
199 Ms Durmaz reported in September 2016 that the plaintiff’s prognosis was very guarded. She considered the plaintiff’s Anxiety and Depression severe enough to prevent her from attending courses or working as she used to pre injury.
200 In a Mental Health Report of May 2017, Ms Durmaz noted the upcoming Court hearing in relation to which the plaintiff was experiencing further anxiety and not coping well. The plaintiff felt extremely tired and mentally exhausted, and needed to deal with her pain more actively and to improve activities scheduling positive self-statements, assertiveness and problem solving skills.
201 Ms Durmaz thought the plaintiff was suffering from Severe Depression and Anxiety, withdrawal, social isolation, crying frequently, low energy, low motivation, low self-esteem and low confidence. She noted the plaintiff continued to suffer from urinary problems and was extremely depressed. She did not want to leave the house because of this. She became anxious when she left home.
202 The plaintiff had very negative self talk and struggled with lower back pain. She felt useless and worthless most of the time, did not sleep well, and felt lethargic throughout most of the day. She avoided people and did not want to talk to anyone.
203 The plaintiff saw Mr Pan, urologist, in early 2017 who provided a number of reports.
204 In his letter of 7 March 2017 to Dr Woo, Mr Pan advised he suspected the plaintiff’s atonic bladder may be attributed to by her medication for a psychiatric condition.
205 There were subsequent reviews in May and August 2017. On the later date, Mr Pan noted nothing had changed. The plaintiff was adamant she did not want to perform intermittent self categorisation.
206 In a letter to the plaintiff’s solicitors in May 2017, Mr Pan advised the plaintiff had had monaural urodynamic testing performed and there was evidence of bladder atony, resulting in retention of a large volume of urine after urination. Mr Pan noted that was often seen in patients who have a history of back injury. He advised the degree of bladder paralysis can also be contributed by her anxiolytic medication; however, that was improving after the cessation of medication overseen by her psychiatrist.
207 Mr Pan concluded the plaintiff continued to suffer from discomfort in the lower back which was unlikely to resolve.[117]
[117]Tendered by the defendant
The Plaintiff’s medico-legal evidence
208 The only medico-legal assessments relied upon by the plaintiff were the very dated reports from Dr Strauss and Dr Kaplan.
209 In April 2008, Dr Kaplan noted the plaintiff stated she felt depressed and nervous. She suffered from insomnia. She reported having lost interest in everything.
210 Dr Kaplan thought the plaintiff probably had an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the condition had not resolved and continued to contribute to her incapacity for work and need for psychiatric treatment. He considered she currently did not have a work capacity, noting she remained anxious and depressed, had a greatly reduced capacity to cope with stress, and her memory and concentration were impaired. She had also lost self-confidence.
211 Dr Strauss saw the plaintiff on 2 December 2008. The plaintiff then said she did very little during the day. She did not sleep. She had severe headaches. She could go shopping but rarely socialised. She cleaned her room and sometimes cooked. She then said she could not go back to work and that her condition was deteriorating.
212 Dr Strauss thought the plaintiff was suffering from the residual effects of a Major Depression but she was better. He noted she appeared to spend her time at home brooding over what had happened to her, and her motivation was low.
213 Dr Strauss considered the plaintiff needed to be activated back into some form of productive activity. He certainly did not believe she was totally and permanently incapacitated. He thought she was capable of participating in some form of vocational assessment and that she was capable of retraining and job seeking assistance. He then considered she was fit for some part-time office work some time the next year after retraining and vocational assessment.
214 In a later supplementary report, Dr Strauss advised he considered the jobs suggested in a vocational assessment report in April 2009 were suitable for the plaintiff.
The Defendant’s medical evidence
215 In a Maternity Discharge Summary of 12 September 2008, it was noted the plaintiff had a past history of, inter alia, Depression and Polycystic Ovarian Syndrome.
216 The plaintiff was certified totally unfit for work by Dr Woo due to Depression from August 2001 to August 2002.
217 Dr Alex Stockman, rheumatologist, examined the plaintiff on referral from Dr Woo in May 2010 and February 2015.
218 On the first visit, Dr Stockman noted, because of the medications the plaintiff had been taking for Depression, she apparently became light headed and fell down a flight of sixteen stairs at home in April 2009, injuring her neck and back. Since then, she had been complaining of constant lower back pain, with frequent episodes of very severe acute pain lasting one to three weeks – associated with pain down both legs.
219 The plaintiff was then taking as many as six Panadeine Forte a day and two Mersyndol Forte at night, and during attacks she also used Voltaren. Dr Stockman then suspected the plaintiff had discogenic back pain and was requesting funding for investigations.
220 The plaintiff was reviewed in February 2015, at which time Dr Stockman noted, unfortunately, she had made no progress and complained of constant lower back and neck pain, as well as pain in the shoulders and a cramping sensation in the hands. The lower back pain was worrying her the most, and she was quite disabled because of it. She lived with her parents and spent a lot of time resting and, consequently, had gained some weight. She had also been depressed because of ongoing symptoms.
221 The plaintiff was on a lot of analgesia in the form of Panadeine Forte, between six to eight a day, and also six to eight aspirin. She alternated Tramadol, 200 milligrams twice a day, with Panadeine Forte, and also Celebrex, 200 milligrams, and Effexor, 300 milligrams.
222 Dr Stockman recommended to Dr Woo that the plaintiff needed further investigation of her pain. He advised he was requesting MRI scans of her cervical and lumbar spine, but funding had been rejected and it needed to be done under Medicare.
Medico-legal evidence – psychiatric
223 Psychiatrist, Dr Timothy Entwisle, first saw the plaintiff on 22 October 2012.
224 The plaintiff then complained of regular ongoing migraines, which began in 2007, and also back pain. She was then taking a large amount of painkilling medication.
225 In terms of interests, activities and hobbies, Dr Entwisle noted the plaintiff remained at home. She was withdrawn and had no interests. She spent her days in bed most of the time. She was alone. Her parents cared for the children. Occasionally, she went to the park with them. She had no social contacts and was not on Facebook. Her sister-in-law and brother had encouraged her to be socially active, but this had been unsuccessful. She did not answer the telephone or the door.
226 The plaintiff described her mood at home as being withdrawn. She did not go out. She was irritable. She fought with her mother. She tried to get her out of the room. They did not understand. She yelled and screamed, and threw things sometimes, and she could be quite angry. She did not feel any good at all. She was lonely, helpless and useless, and tearful most of the time. Life was not worth living and she could not be bothered. She had no interests or enjoyment and was full of regrets.
227 At that stage, Dr Entwisle thought the plaintiff presented with a Major Depressive Illness, moderate, without psychotic features. He noted treatment to date had been to no avail and shared others’ concern of the large amount of opiates the plaintiff was taking.
228 Dr Entwisle thought, unfortunately, the plaintiff appeared permanently incapacitated given the description of her daily activities, whereupon she spends her time in bed and appears resistant to any treatment input.
229 Dr Entwisle noted there were likely to be a number of other factors including personality and pre-existing issues contributing to the plaintiff’s current decline. He thought the prognosis was poor and no treatment was likely to be of particular assistance unless she developed some form of treatment alliance and/or motivation to improve. He noted Dr Strauss had made similar comments.
230 The only suggestion Dr Entwisle could make was that the plaintiff be admitted to a hospital for a day program to get her out of the house and to begin a more active form of treatment.
231 Dr Entwisle then thought the plaintiff was not fit to participate in vocational assessment, retraining, functional capacity evaluation, or a work hardening program.
232 Dr Entwisle re-examined the plaintiff in November 2014.
233 At that stage, the plaintiff described her parents helping with the children. She showered twice a week and dressed in a tracksuit. Normally, she stayed in bed of a morning, and may have lunch. Her family cooked for her and brought her food. In the afternoon, her mother cared for the children when they came home.
234 The plaintiff spoke of having headaches and was not inclined to be involved with the children as a result. She needed to rest and lie down in a dark place. She did not walk and did not go shopping. She did not go out of the house. She had no phone. She did not see anyone and she just wanted to be left alone. Evening meals were held when it was dark. She then went to bed. She could not tell at what time. She normally took her other tablets at night.
235 On weekends, the plaintiff did not socialise – “I don’t see anyone. Every day is the same for me.” She was not involved in her children’s activities or study. She had no friends. There were no interests. She did not watch television or listen to the radio and had no interest in Facebook.
236 In terms of her mood, the plaintiff described living with her was a struggle. She was withdrawn and in constant pain. She was often irritable, frustrated and angry, and she wanted to be left alone. She avoided people and did not socialise.
237 Dr Entwisle again diagnosed a Major Depressive Illness and thought the plaintiff had no work capacity. If anything, her psychiatric condition had worsened since last seen. However, he noted the worsening of her condition, in his view, related to non-work related factors but, in the end, her condition remained accepted as work related.
238 On re-examination on 1 May 2015, the plaintiff advised that she continued to reside with her parents who cared for her two children as she was not really capable of doing so.
239 The plaintiff normally spent her days in a tracksuit and did not wash her hair often because she did not want to. Everything hurt. She constantly felt nauseated and said she wanted to close her eyes. She did not walk. She spent her days in her room with the covers over her. Her mother sometimes took her out the front of the house to watch the children play. She normally did not eat with the family. She preferred to be in bed. She just liked to close her eyes and sleep. She could not stand noise because it gave her headaches. She had no activities or hobbies, no friends, no phone, and did not use Facebook.
240 In terms of her mood, the plaintiff just wanted to be left alone. She did not feel happy around people. She hated noise. She was always in pain and uncomfortable. She had little contact with the outside world, could not manage her children, and her parents did that. She felt terrible, hated herself and had had enough. She described herself as an emotional wreck.
241 Again, Dr Entwisle diagnosed Major Depressive illness and Chronic Pain Syndrome. He thought the prognosis was poor, and considered the plaintiff had no capacity for work of any type.
242 Dr Entwisle was then provided with Facebook entries describing the plaintiff’s following activities:
·August 2014 – attended the airport with her sister-in-law
·23 March 2014 – attended Salon Melbourne Expo at Melbourne Convention Centre with her sister-in-law
·March 2014 – attended Moomba with family
·9 March 2014 – attended Zoo with family
·late February 2014 – attended gym
·31 January 2014 – attended her father’s birthday party
·November 2013 – in Bali for her partner’s fortieth
·February 2013 – masked event
·2 July 2013 – roller skating
·28 August 2012 – Pit Bull concert at Rod Laver.
243 Dr Entwisle noted the plaintiff also told him there was no prior psychiatric history, but he had been given Dr Woo’s clinical notes which set out a diagnosis of Depression in 2001 and 2002.
244 Dr Entwisle noted that the independent medical examiners are entirely dependent on the histories provided and their veracity in regard to same. Material from the plaintiff’s Facebook page and the medical history indicated the presence of a pre-existing psychiatric condition, and depicted an active, involved social lifestyle and a capacity to engage in a number of physical activities. In his view, the plaintiff’s veracity was seriously in question and, as such, a diagnosis made based on her account was untenable. He considered functional overlay factors were obviously at play.
245 Based on her account, Dr Entwisle opined the plaintiff was suffering from a psychiatric condition of moderate severity and had no work capacity. In light of the Facebook material, he thought such a diagnostic formulation was no longer tenable.
246 There was a further re-examination in March 2016.
247 On entering the room, Dr Entwisle thought it immediately apparent the plaintiff’s presentation had changed significantly since the previous assessment. She generally had attended with dark glasses and little eye contact and rapport. This time she wore no glasses and her presentation had a different quality. He thought that, in no little way, related to the fact she and her former partner, Richard, had reconciled.
248 The plaintiff, despite her apparent, if not somewhat denied happiness in regard to the relationship with Richard, continued, nonetheless, to report herself to be essentially helpless, homebound and sedentary. The main thrust of treatment with Dr Chong was to get her out of the home, to lose weight and become more socially functioning, and to interact more with her children and those around her.
249 Dr Entwisle noted, begrudgingly, nonetheless, the plaintiff did state that she was feeling a little bit better due to treatment, but improvement was very limited.
250 The plaintiff said, while she would like to walk, she really could not. She could not bend and lift, and needed help occasionally to dress. She did not drive, and insisted on being driven. She did no washing and no shopping. She, however, acknowledged she and her family went to Turkey in 2015 for three months.
251 The plaintiff did not prepare lunch for the children or drive them to school. She took medication and returned to bed, spending the day in and out of bed, watching television until the children came home, when she talked to them briefly. She showered, but not every day. She did not participate in any domestic activities to run the home, and spent the day watching television. Weekends were like any other day. She did not socialise or visit or use the telephone, and Richard had to answer the telephone it if it rang.
252 When questioned as to her contact with others via social media, the plaintiff explained she had been put on Facebook by her family, but did not use it herself, and she did not do any of that. She did not open Facebook because it did not interest her, and she had not done so in any real sense for an extended period.
253 In terms of mood at home, things were okay, and there had been some improvement. In terms of the plaintiff’s spirit, she teetered on the edge of admitting, in some ways, things were better, but then resorted to the previous narrative she was hopeless, sad and depressed and did not enjoy anything at all, and never did. She remained anxious and avoidant. She spent her time in passive, sedentary inactivity.
254 The plaintiff continued to describe herself as a helpless individual who is incapable of any sustained activity, social connection or parental responsibility.
255 Having carried out this assessment, Dr Entwisle was left with the distinctive impression the plaintiff’s presentation was consistent with that of a feigned illness in which conscious factors were readily occurrent. He considered her account could not be believed and that various assertions in regard to her mental state and Pain Syndrome were not tenable. In his view, the plaintiff’s veracity, having assessed her on a number of occasions, was seriously in question.
256 That, accordingly, called into question the plaintiff’s requirement for treatment, and serious attention needed to be directed towards limiting her heavy reliance on painkilling medication and, in addition, psychotropic medication.
257 Dr Entwisle believed that the plaintiff had a capacity to undertake activities of daily living in the absence of such treatments, but cautioned that they not be withdrawn without warning or planning. He thought the plaintiff would benefit from not being sedated to the degree that she is in regard to her Pain Syndrome, and that she should continue contact with Dr Chong, but her treatment with Ms Durmaz could, however, cease.
258 Dr Entwisle considered whatever injuries the plaintiff may have sustained at work or during the fall had been overtaken by other factors which were not explained by those injuries.
259 Dr Entwisle believed the plaintiff would have a capacity for work if she was motivated to participate in it, but had given that away many years ago. Given all that had gone before, he thought it unlikely she would simply return to work, noting her strong dependency on those around her, and a lifestyle which involves total incapacity to look after herself.
260 Dr Entwisle thought the plaintiff was not likely to participate in occupational rehabilitation services, particularly as her claim continued. He did not believe her incapacity was still related to the claimed injury. He thought it readily apparent her condition was far improved compared to her presentation before the Medical Panel, and there was evidence there was further improvement in the context of her relationship with Richard, with whom she had reconciled.
261 Dr Paul Kornan, psychiatrist, first examined the plaintiff in November 2013.
262 The plaintiff told Dr Kornan she just could not get over what had happened at work. She pretty much remained constantly in her room under the covers of her bed. Her mother might accompany her out to the backyard. She did not watch television. She did not really do anything in bed, just lie there.
263 Dr Kornan had available a Medical Panel Certificate indicating the plaintiff had a Chronic Adjustment Disorder with Depressed and Anxious Mood and had no current work capacity (26 February 2010), reports from Dr Wong, psychologist, dated July 2007, Dr Nigel Strauss, dated December 2008 and Dr Chong, dated 2008. There was also a report from Dr Greenberg who, in March 2009, thought the plaintiff had an Adjustment Disorder with Anger.
264 Dr Kornan considered, from a psychiatric viewpoint, unless one could prove otherwise, it would be accepted the plaintiff had a Chronic Adjustment Disorder with Depressed and Anxious Mood. On the other hand, the alternative diagnosis might well be she has gone into a phase of anger, and that had allowed her retreat to her bedroom.
265 Given her presentation on interview, Dr Kornan thought the plaintiff would be unfit for either pre-injury or suitable alternative duties. He noted, however, if she was not receiving some form of weekly payments, there might be an altered pattern with her. He unfortunately gained the impression the plaintiff’s entitlement to compensation payments was not helpful.
266 From a psychiatric viewpoint, Dr Kornan could not see why the plaintiff should not have a capacity to participate in vocational retraining. Given her presentation then, he thought it not possible to state there had been a material change in her condition as compared to her presentation before the Medical Panel.
267 Dr Kornan provided a further report in December 2015 after having been provided with extracts of Facebook material relating to the plaintiff dating from 25 February 2012 to 1 September 2015.
268 Dr Kornan noted the quite extensive Facebook material which revealed the plaintiff having a smiling, outgoing manner from 2012, as well as in 2013 and 2014. Her behaviour, in a sustained way, seemed to show an active, happy and vibrant individual who was enjoying life and taking part in many family and community activities. It also appeared there were comments about how much fun she had been having. She was able to sing karaoke and dance. She was able to travel overseas, having travelled twice in 2013, being Bali in February and March 2013, and again in November that year.
269 Dr Kornan thought those Facebook entries indicated the plaintiff was leading a happy and vibrant lifestyle in a sustained manner. He also noted her prior psychiatric history in 2001 and 2002.
270 In view of the additional material, Dr Kornan thought there were grounds for believing the plaintiff was a manipulative individual who had been able to lead a normal lifestyle from her point of view. In his opinion, after reviewing that material, the plaintiff does not present with a psychiatric ill health condition which disables her, and the extra material indicated she could function quite normally and effectively when it suited her. He noted it may well be there are some personality issues from the plaintiff’s background which had caused her to have some issues, but the additional material from Facebook does not indicate she sustained any disability.
271 Dr Kornan gained the strong impression, after viewing this material, that there was likely to be conscious exaggeration of the plaintiff’s symptoms, and any disability which existed from those symptoms. In his view, there was likely to be a deliberate attempt to feign injury for the purposes of the worker’s compensation claim. He thought the material clearly indicated that whatever existed with the psychiatric situation does not present as a disability when it suits her to follow her needs, as well as her ability to mix and have social interactions.
272 Dr Kornan thought the finalisation of the plaintiff’s case will no longer see her complaining to doctors about her alleged symptoms. There may still be some personal issues in her life which explain her mood changes, such as over reliance on appearance, which could give rise to secondary emotional gain factors, but that would not explain her having a disability for employment, when one considers the Facebook material. Having seen that material, he thought it was clear that she does not have an incapacity for employment, and there were no indications she has an ongoing disability or incapacity in that regard.
273 Dr Kornan considered the plaintiff was fully fit to perform her pre-injury employment through 2012, as well as 2013 and 2014, and it is likely that her conscious pretence of disability has being going on for considerably longer.
274 Dr Kornan also commented it was strongly likely, on the balance of probabilities, there had been an attempt to deceive with regards to any alleged disability for employment for considerably longer. In his opinion, the additional material indicates someone who has been fully fit to work for an extended period of time.
275 Having been provided with Dr Entwisle’s 2015 and 2016 reports, the Medical Panel Certificate, and also considering his previous report, Dr Kornan concluded the plaintiff was misrepresenting her condition and capacity for employment.
276 Noting the Facebook entries, Dr Kornan thought it was clear that the plaintiff has participated in a wide range of daily activities, and it seemed she had the ability to lead quite a social life. He thought she clearly misrepresented her condition, as well as her level of functioning and, therefore, her true capacity for employment. In his view, she does not have an ongoing disability but, rather, is able to enjoy herself and he would suspect, in basically an ongoing type way.
277 Dr Kornan thought there had been clearly a material change in the plaintiff’s psychiatric ill health condition since the examination by the Medical Panel. At that time, there was no mention of her level of participation in social activities, such as what was happening in 2013, whereas it was clear from Facebook, the plaintiff had an active and happy life with obvious enjoyment.
278 Dr Kornan thought the plaintiff was a woman who was clearly functioning within normal average limits from the point of view of mixing socially, being active and showing a happy and contented disposition as far as her lifestyle was concerned. She had not indicated the reality of her lifestyle when previously asked about that situation. Dr Kornan noted, not surprisingly, one is forced to rely upon her account of her daily activities when coming to a diagnosis. Clearly, however, with this additional material, including Facebook material, it indicated that the plaintiff does not in fact present with a psychiatric ill health condition.
279 Mr Rodney Syme, urologist, reported on the plaintiff’s condition on 12 May 2017. He concluded, in his clinical opinion, the plaintiff had a hypocontractile bladder due to over distension in 2014, and that was not a work-related issue.
Claim documents
280 By letter dated 22 August 2016, the plaintiff was advised by Gallagher Bassett that from 26 November 2016, she was no longer entitled to weekly payments because she has a current work capacity or, alternatively, has no current work capacity but it is not likely to continue indefinitely.
281 Noting the original opinion of the Medical Panel in 2010, Gallagher Bassett referred to the assessments by Dr Kornan and Dr Entwisle and their respective reports, following which they considered the plaintiff was not suffering from a work-related psychiatric injury.
282 Further, reference was made to the suitable work suggested by AMS in April 2016 and suggested training for the plaintiff to return to the workforce.
283 It was noted that there was a computer course that commenced on 27 July 2016, and also it was approved that capacity support services be provided at the completion of job-seeking services to assist the plaintiff to return to employment.
284 The plaintiff was advised that Dr Kornan’s view that she was misrepresenting her condition and had a capacity for employment was clearly a material change since the Panel account of her difficulties.
285 Gallagher Bassett advised that on 20 July 2016, it sent copies of reports from Dr Kornan and Dr Entwisle to Dr Woo and Dr Chong, but to date had not received any response.
286 Therefore, based on the available medical and occupational information, Gallagher Bassett determined the plaintiff has a current work capacity and would be capable of undertaking suitable alternative employment such as the jobs identified.
287 Therefore, in accordance with s114(2)(b)(ii) of the Act, the plaintiff was advised her entitlement to weekly payments would cease effective 26 November 2016.
288 Gallagher Bassett wrote to the plaintiff again on 20 October 2016 advising it had determined from that date the plaintiff was no longer entitled to weekly payments because she did not actively use an occupational rehabilitation service and cooperate with the provider, and did not actively participate and cooperate in an assessment of her capacity for work, rehabilitation, progress, or future employment prospects.
289 The correspondence set out the following history.
290 On 27 May 2016, the plaintiff commenced capacity support services with AMS. This occurred after the appointment had been put back a week.
291 There was an appointment then scheduled for 20 July 2016, which the plaintiff did not attend, and a further appointment was arranged for 8 August 2016, of which the plaintiff was advised by registered mail.
292 On that date, Gallagher Bassett tried to contact the plaintiff to remind her of her appointment, but the call was not answered. AMS emailed Gallagher Bassett to advise of non-attendance.
293 On 12 August 2016, Gallagher Bassett tried to call the plaintiff to see why she did not attend, but there was no answer. A new appointment was rescheduled for 9 September 2016.
294 On 9 September 2016, AMS reported the plaintiff failed to attend the commencement appointment for job seeker services, despite a warning letter of 12 August 2016 reminding her of her responsibilities, and a message sent to her on the morning of 9 September 2016.
295 Emails in August 2016 and September 2016 indicated the plaintiff failed to turn up for a commencement meeting with that vocational assessor.
296 On 19 September 2016, Gallagher Bassett suspended the plaintiff’s weekly payments for twenty-eight days as a result of non-compliance with her responsibilities.
297 On 13 October 2016, AMS reported the plaintiff sent a text message advising she could not attend the scheduled appointment that day for a conciliation. Gallagher Bassett advised AMS the conciliation had been cancelled by the plaintiff’s solicitors the day before, and that she was not attending any conciliation, and that she would be required to attend the appointment. AMS advised the plaintiff of this in advance of the appointment, to which there was no reply.
Vocational evidence
298 AMS Consulting Group provided a 130-week vocational report on 14 April 2016. The author, occupational rehabilitation specialist, Gary Fitzsimmons, identified suitable employment options for the plaintiff as follows:
·customer service clerk – $1,066 per week
·filing clerk – $1,221 per week
·mail clerk – $930 per week
·sales clerk – no figure
·general clerk – $1,011 per week
·ticket seller – $1,096 per week
·warehouse administrator – $1,267 per week
·admissions clerk – $1,034 per week.
Overview
299 There is no dispute the plaintiff suffered a psychiatric injury during the course of her employment as a result of bullying and harassment whilst working as a bistro supervisor at the Sands Hotel.
300 The plaintiff’s claim for weekly payments was accepted and payments were made until 2016.[118]
[118]See paragraphs 280-297 of this Judgment – termination letters
301 Until Facebook material was provided to Doctors Kornan and Entwisle, the consensus of psychiatric opinion was the plaintiff was suffering from a significant work-related psychiatric injury.
302 Dr Entwisle, Dr Woo and Dr Chong diagnosed a Major Depressive illness with Dr Entwisle also diagnosing a Chronic Pain Syndrome. Dr Kornan considered the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood.
303 All practitioners were of the view the plaintiff was totally unfit for work on psychiatric grounds, having received a history from her that she was helpless, homebound and sedentary.[119]
[119]Dr Entwistle’s description in March 2016
304 Having been provided with the numerous photographs of the plaintiff and comments attributed to her on her sister-in-law Gulay’s Facebook page spanning 2012 to 2014, both Dr Kornan and Dr Entwisle changed their views dramatically, and now consider there is no work-related psychiatric incapacity.[120]
[120]T112
305 Counsel for the defendant submitted that neither of these very experienced medico-legal psychiatrists “would lightly express the opinion the plaintiff was deliberately attempting to deceive, or feigning an illness”.[121]
[121]T113
306 Counsel for the plaintiff submitted however that this Facebook material was not inconsistent with the plaintiff’s description of her level of incapacity and could be explained by her family’s attempts to try to get her to be more active and socialise at a time when she required significant ongoing medication and psychiatric treatment.
307 In these circumstances, it was submitted the plaintiff continues to have no capacity for employment on psychiatric grounds and has therefore suffered the requisite loss of earning capacity of 40 per cent.[122] In those circumstances, she also has a serious injury in relation to pain and suffering.
[122]T156; No figures were put as to the appropriate “without injury” figure as it was submitted there was a total loss of earning capacity
Credit
308 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[123]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[123](2010) 31 VR 1 at paragraph [12]
309 Further, I am mindful of what was said by Chernov JA in Dordev v Cowan[124] in relation to the plaintiff’s credit in this type of case. His Honour stated that a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[124][2006] VSCA 254 at paragraph [14]
310 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to her credit.
311 In a case of this nature, involving psychiatric injury, the plaintiff’s credit is critical when there can be no real objective evidence to demonstrate the extent and nature of injury.[125]
[125]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
312 As counsel for the defendant submitted, the credit of a plaintiff in a ss(c) case is “so important because of the inherent difficulty in demonstrating, by reference to objective evidence, the seriousness of a psychiatric state. In a physical injury case, severity of injury could be demonstrated without worry by reference to objective evidence, but it does not exist here, like an MRI scan or blood test.”[126]
[126]T124
313 Counsel for the plaintiff conceded the plaintiff “may not be the most impressive witness, but that is not the issue. The issue is, is it a truthful story in substance that she has told”, and it was submitted the likelihood was it was truthful, given the frequency of medication.[127]
[127]T146
314 However, whilst the plaintiff continues to receive psychiatric treatment and is being prescribed anti-depressant medication, her need for such treatment is determined largely by an acceptance by her treaters of her complaints.
315 When provided with the Facebook material, Dr Entwisle described a feigned illness in which the plaintiff’s various assertions in regard to her mental state are not tenable, and any incapacity is not related to the claimed injury.[128]
[128]T115
316 Further, Dr Kornan then thought there was likely to be a conscious exaggeration of symptoms and there was likely to be a deliberate attempt to feign injury for the purposes of the worker’s compensation claim.[129] He considered there had been an attempt to deceive, and the plaintiff had been fully fit to work for an extended period of time.[130]
[129]T115
[130]T116
317 Counsel for the defendant submitted that these views were the “central plank” for the defendant’s submission, and that those doctors should be accepted, and if they are, the plaintiff loses.[131]
[131]T116
318 Counsel for the plaintiff submitted “the most significant thing of all” was that the doctors relied on by the defendant did not speak to the plaintiff about the Facebook material and obtain an explanation from her. They then drew a very strong conclusion against her whereas the psychologist, psychiatrist and general practitioner who have been treating the plaintiff for long periods, consider she still has a significant work-related psychiatric condition.[132]
[132]T153
319 The plaintiff did give an explanation to Dr Entwisle about the Facebook material. However, this is not trial by doctor. The plaintiff has been cross examined at length about all the Facebook material. It is ultimately a matter for the Court what to make of her explanation for her happy appearance in the photos, not for Doctors Entwisle or Kornan.
320 Having been provided with “Facebook photographs (produced by WorkCover)”[133] whilst Dr Chong did not change his view as to the plaintiff’s level of work-related psychiatric incapacity, he simply accepted her explanation of the Facebook photographs and posts. He did not strongly confirm his earlier opinion, simply saying the plaintiff’s explanation “can be believable”.[134]
[133]Page 46, T117
[134]T118
321 Dr Woo did not deal with the Facebook issue in any detail in his September 2016 report, noting he could only state the plaintiff had been consistently found to be in a depressed state and he had not been aware of her faking signs or exaggerating.
322 However, Dr Woo has not reported for over a year and therefore not commented on the plaintiff’s situation now she lives with Richard and no longer lives with her parents – a situation which, in Dr Entwisle’s view, indicated further improvement in the plaintiff’s condition.
323 Further, in this case where the onus is on the plaintiff, there are no recent medico-legal reports in support of her application. Re-examinations were not arranged with Dr Strauss, and Dr Kaplan, who saw the plaintiff in 2008.[135]
[135]T154
324 In these circumstances, I prefer the views of two experienced medico-legal psychiatrists, Dr Entwisle, having seen the plaintiff multiple times, and Dr Kornan, who saw her once and provided a number of reports dealing with relevant material.[136]
[136]T119
325 Whilst this medical evidence is relevant to my determination, the application must be decided on all the evidence.[137]
[137]T119, Jayatilake v Toyota Motor Corporation Australia Ltd (supra)
326 In my view, the plaintiff’s activities shown on Facebook are inconsistent with her evidence of a significant level of psychiatric incapacity.
327 The plaintiff and her sister-in-law, Gulay’s evidence, as to how the plaintiff’s comments appear on Gulay’s Facebook page is unusual but was not really challenged.[138]
[138]T137-38
328 Gulay deposed she set up a Facebook account in the plaintiff’s name but the plaintiff does not use the account herself. The photographs in this case, on Gulay’s Facebook page, were posted by her or other family members, not the plaintiff.
329 Whilst deposing the Facebook material was obtained without her consent, the plaintiff did not depose that others commented or posted using her account or their reason for doing so.
330 In my view however, the explanation for the plaintiff’s apparent happy appearance in numerous photographs from 2012 to 2104 in which she appears to be enjoying herself lacks credibility.
331 Gulay deposed she set up the plaintiff’s Facebook page to enable her to communicate and socialise with family on the advice of the plaintiff’s doctors. Further, she said she showed the plaintiff the Facebook entries as she was often bedbound at home. Gulay did not explain why she was using the plaintiff’s account to put up posts and comments.[139]
[139]T120
332 In her viva voce evidence, the plaintiff confirmed Gulay’s account. Her family needed to push and encourage her, and that is why they opened her Facebook account.[140] She was just being encouraged by them to “look how happy” she was.[141] The plaintiff was not enjoying herself or socialising, despite the photographs. She was posing at the request of family members and the photographs did not accurately reflect how she was feeling at that time.
[140]T59
[141]T60
333 I disagree with counsel for the plaintiff’s submission there were a “tiny” number of days in the whole of the period where the plaintiff was shown in photographs on Gulay’s Facebook page enjoying herself.[142] There are numerous photographs over two years, albeit mainly of family functions at home, in which the plaintiff is shown smiling, wearing make-up, sometimes in costume, at times drinking from a Vodka Cruiser bottle and the plaintiff generally having a good time and interacting with family and friends. There were also photographs of her enjoying the trips to Bali in 2013.
[142]T150
334 However, the plaintiff was not prepared to concede she was ever having a good time at any of these events or functions, repeatedly denying she was enjoying herself or socialising.
335 Counsel for the plaintiff submitted the suggestion the plaintiff was enjoying herself is utterly inconsistent with her use of serious drugs with side effects, and that it should be accepted she is suffering from serious Depression.[143] The question was posed, why would the plaintiff take the drugs if she was that happy?[144]
[143]T156
[144]T142
336 Counsel for the plaintiff submitted the photographs were taken at family functions which happened infrequently. The plaintiff was part of a close family who had significant powers of persuasion. It would be churlish of her to say “don’t take the photographs”.[145]
[145]T143
337 In terms of the Bali trips, it was submitted everyone had been encouraging the plaintiff to participate in life and not let her be locked away. Those around her are doing all they can to make sure she is not depressed.[146] It was submitted the plaintiff had intermittent short lived and, perhaps, to some extent, pleasurable experiences on some of those occasions.[147]
[146]T145
[147]T146
338 However, I do not accept the plaintiff was simply posing for “happy snaps” on these numerous occasions, as her counsel submitted.[148] In my view, the plaintiff’s level of activity and enjoyment shown in the photographs strongly contrasts with the picture of the helpless and homebound woman painted by her to medical examiners.
[148]T141, T155
339 In my view, the Facebook material damages the plaintiff’s credit, not only in what she was shown to be doing in the numerous photographs, but her response and explanation in relation thereto – giving non-credible and self-serving explanations about the photographs.[149]
[149]T127
340 There seems little point in the plaintiff’s family using her Facebook page to encourage her to be more active when her evidence was that she was upset when shown the various photographs of her having a good time.
341 It is difficult to see how Gulay actively using the plaintiff’s account posting comments on her own Facebook page helps the plaintiff if the plaintiff rarely looks at it and does not get any pleasure from doing so. In any event, Gulay does not say she uses the plaintiff’s account in this way.[150]
[150]T123
342 Having formed this view of the Facebook material, I have significant doubts as to the claimed seriousness of the plaintiff’s psychiatric condition. I do however accept she continues to have psychiatric symptoms for which some treatment is required, as Dr Entwisle opined, after having seen the Facebook material.[151]
[151]T117, continuing contact with Dr Chong
343 Further, I accept the submission by counsel for the defendant that the plaintiff was unimpressive in the witness box and that she came across as someone more interested in avoiding giving a damaging answer than in telling the truth.[152]
[152]T125
344 Examples in this regard included the plaintiff’s attempts to back away from conceding she went to Moomba the same day as she went the zoo when the Facebook entries and photographs were on the same date,[153] failing to acknowledge she was certified unfit for work due to Depression in 2001 and 2002,[154] and her reluctance to concede her bladder problems may be attributable to the 2014 surgery, when she is aware part of her case is that her psychiatric medication has aggravated her bladder condition.[155]
[153]T123
[154]T130
[155]T130
345 The plaintiff’s evidence that she did not know whether her partner, Richard, had a Facebook page was implausible.[156] Also, it was plainly misleading for the plaintiff to depose in her most recent affidavit, that she was actually using a catheter.[157]
[156]T129
[157]T132
346 In terms of further evidence relied on by the plaintiff, it was unusual to say the least that Gulay did not disclose in her first affidavit that she is the plaintiff’s sister-in-law.
347 As the plaintiff’s credit has been attacked successfully in relation to her evidence as to her claimed level of incapacity, the defendant cannot be criticised for failing to cross-examine Gulay in relation thereto. In any event, one would have expected the plaintiff’s partner, Richard, to have provided an affidavit corroborating the plaintiff’s complaints.[158]
[158]T120, Ifka v Sahin Enterprises Pty Ltd (2014) VSCA 8
Is any current psychiatric impairment ‘severe’?
348 Counsel for the plaintiff submitted the plaintiff had a “very, very limited outdoor, out of family, outside - a cloistered existence. She is much closer to a cloistered nun than she is to someone living an active and viable life in the community because it is so confined to the people who are part of her social life. The pictures do not show strangers.”[159]
[159]T151
349 Counsel for the plaintiff relied on the prescription of antipsychotic drugs from 2007[160] with an initial prescription of Endep on 5 May 2007, then Zoloft and more recently, Efexor.[161]
[160]T136
[161]T147
350 It was submitted it was “extraordinarily unlikely that the plaintiff would regularly take such significant medication, put on a false story and stay away from work, when work was clearly of significant interest to her”.[162]
[162]T146
351 It was submitted “the picture that was sought to be painted by the defendant was of a woman who was a malingerer, a liar and yet so determined is she to prove this, that she will take all this medication with significant side effects, regardless of the fact there is no valid reason to take any of them, because she is not depressed and does not have serious problems”.[163]
[163]T146
352 Reliance was placed on Dr Woo’s notes that detailed on numerous occasions the plaintiff attending complaining of being depressed. It was submitted Dr Woo was in a wonderful position to comment on the plaintiff’s capacity, seeing her so frequently. Dr Woo has consistently encouraged the plaintiff to socialise and go overseas.
353 Similar comments were made in relation to Dr Chong, who continues to see the plaintiff, and has done so for many years.[164] It was submitted the views of these treaters should be preferred to the picture painted by the defendant based on a small number of photographs of the plaintiff with people who are likely to be doing their best to encourage her to enjoy her life.[165]
[164]T152
[165]T153
354 Reliance was also placed on the views of psychologist, Ms Durmaz, who treated the plaintiff over a long period.[166]
[166]T153
355 Further, in February 2010, the Medical Panel opined that the plaintiff had no current work capacity on psychiatric grounds and that was likely to continue indefinitely.[167]
[167]T152
356 It was submitted the plaintiff says it is her Depression that causes her problems. She regularly reports to her doctors she is depressed. They have tested her and recorded her Depression at very high levels. All her treaters constantly paint a picture of an entrenched serious condition on ss(c).[168]
[168]T149
357 Further, it was submitted the plaintiff does not have a capacity for work on psychiatric grounds, as Dr Chong, Dr Woo and Ms Durmaz opined.
358 In those circumstances, it was submitted, having suffered the requisite loss of 40 per cent, the plaintiff should also be granted leave to bring proceedings for damages for pain and suffering.[169]
[169]Acir v Frosster Pty Ltd (supra)
359 Even leaving aside credit, counsel for the defendant submitted the plaintiff’s psychiatric impairment falls short of “severe”, as she does not give a remotely sufficient description of how her psychiatric condition affects her day to day. There are none of the usual indicia and there is just a general assertion about medication. She does not explain how her daily functions are limited by her psychiatric symptoms, in circumstances where she has to meet the very high bar of severe. It was submitted it is just not enough to rely on doctors who rely entirely on her non-credible history.[170]
[170]T131
360 Further, there is no fleshing out of the plaintiff’s Depression and anxiety, as to in what circumstances it comes on, or how severe it is. It was submitted any psychiatric impairment would not even get to serious, and certainly did not get to severe.[171]
[171]T132
361 It was submitted there was just a blanket statement by the plaintiff that she had no current capacity to perform her previous employment. There is a description of all the medication the plaintiff takes, seven of which are not psychiatric. She then says she takes Effexor, but does not want to say how often she takes it, and there is no evidence before the Court in that regard.[172]
[172]T131
362 It was submitted the plaintiff is prepared to blame things, even like weight gain, on Depression.[173]
[173]T132
363 Further, it was submitted there is a “deafening” silence from the plaintiff’s partner, Richard, and if there ever was a case where there should have been corroborative material from a partner, this was it. He lives with the plaintiff, has seen her sadness, taking of medication, et cetera, but there is nothing from him. This is a really significant omission and an adverse inference should be drawn, as Richard is clearly a witness in the plaintiff’s camp.[174]
[174]T123
364 In Peak Engineering & Anor v McKenzie,[175] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[175][2014] VSCA 67
365 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[176]
[176](supra) at paragraph [1]
366 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[177]
[177](supra) at paragraph [2]
367 In addition to her psychiatric complaints, it is clear the plaintiff presently suffers significant bladder problems which she focussed on in her most recent affidavit and attributed to the medication she was taking for her psychiatric condition.[178]
[178]See paragraph [76] of this Judgment
368 The plaintiff’s evidence is that her bladder problem aggravated her Depression and is a significant cause of her ongoing problems.[179]
[179]T136
369 However, in final addresses it was not suggested on the plaintiff’s behalf that there was any link between these bladder problems and her medication.
370 Neither Mr Pan nor Mr Syme found a causal link.[180] Mr Pan “suspected” the plaintiff’s atonic bladder “may” be attributed to by her medication for a psychiatric condition. Mr Syme was of the view that the plaintiff had a hypocontractile bladder due to over distension in 2014, and that was not a work-related issue.
[180]T133-134
371 It seems the plaintiff’s current bladder complaints stem largely from the 2014 surgery, as Mr Syme opined, but the plaintiff refuses to acknowledge this is the case. Further, she has not been prepared to attend Mr Syme despite her complaint he did not examine her prior to reporting.[181]
[181]T135
372 These problems relating to the plaintiff’s bladder condition and the role played by it in the plaintiff’s Depression must therefore be excluded from a consideration of her present psychiatric impairment.
373 What also must be excluded are the consequences of the plaintiff’s significant constant lower back pain since the 2009 fall.
374 The plaintiff was referred to Dr Stockman in 2010 and again in 2015 for treatment of her back pain. Whilst he noted her complaints of constant back pain which, in 2015, was described by her as quite disabling, when cross-examined, the plaintiff played down the severity of her back condition in relation to which she initially admitted taking up to six Panadeine Forte a day.[182]
[182]T125
375 Further, Dr Chong reported in July 2016 that the plaintiff had a really bad lower back at that time. She also told him that her very bad back was making her agitated, anxious, tense and uncomfortable, and causing her Depression.
376 The plaintiff agreed that when she has back pain at the present time it is very disabling but she then said it was not strong enough to take strong painkillers and she took this medication for her other complaints.
377 I accept the plaintiff’s back condition has an adverse effect on her ability to work, undertake household activities and socialise, yet her evidence is that it is her Depression that influences her capacity in those areas.[183]
[183]T126
378 In September this year, Dr Tang certified the plaintiff totally unfit for work because of her spinal condition and also stress/Depression.[184]
[184]T126
379 Whilst Gulay deposed that the plaintiff is an invalid and bedbound at home, she does not say why, and there is a serious disentanglement issue. Despite what is obviously a significant ongoing back problem, Gulay makes no mention thereof in her affidavits.[185]
[185]T121
380 I am not satisfied that on psychiatric grounds alone the plaintiff cannot work and that she has lost 40 per cent of her earning capacity on a permanent basis.
381 I prefer the evidence of Dr Entwisle and Dr Kornan that the plaintiff can work on a psychiatric basis.[186] I accept that she would have a capacity for work if she was motivated to participate in it, but she had given that away many years ago, as Dr Entwisle stated. Similar views were expressed by Dr Strauss in 2008.
[186]T133
382 As counsel for the defendant submitted, the plaintiff has made no attempt to return to the workforce in the last ten years and her capacity has therefore not been tested. There is some issue as to her level of co-operation with the AMS rehabilitation provider, with her payments ultimately terminated on that basis.[187]
[187]T133
383 Further, I am not satisfied any other psychiatric consequences meet the high test of severe.
384 Whilst the plaintiff continues to have psychiatric treatment and counselling, I accept the view of Dr Entwisle, who thought the latter was no longer required. He also questioned the need for ongoing psychotropic medication.
385 I accept the submission by counsel for the defendant that the plaintiff’s affidavits do not contain a remotely sufficient description of how her psychiatric condition affects her day-to-day activities and it is just not enough to rely on doctors who rely entirely on her non-credible history.[188] The only real detail relates to her bladder problems.
[188]T131
386 Further, there is no fleshing out of the plaintiff’s Depression and anxiety, as to in what circumstances it comes on, or how severe it is. There was just a blanket statement by her that she has no current capacity to perform her previous employment. There was also no real explanation of her medication regime. [189]
[189]T131
387 I do not accept the plaintiff’s evidence that it is her Depression alone, not her significant back condition, that prevents her engaging in household activities. She is prepared to blame things, even like weight gain, on Depression.[190] On her own account, she clearly has significant bladder problems and related abdominal pain which interfere greatly with her daily life.
[190]T132
388 Taking into account all the evidence, I am not satisfied the plaintiff has a severe psychiatric impairment. I am also not satisfied she has suffered the requisite loss of earning capacity of 40 per cent as a result any work related psychiatric condition.
389 Accordingly, the plaintiff’s applications under both heads are dismissed.
- - -
0
10
0