Forssell v Commercial and Industrial Property Pty Ltd
[2022] VCC 362
•24 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-00547
| JUSTIN FORSSELL | Plaintiff |
| v | |
| COMMERCIAL AND INDUSTRIAL PROPERTY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2021 | |
DATE OF JUDGMENT: | 24 March 2022 | |
CASE MAY BE CITED AS: | Forssell v Commercial and Industrial Property Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 362 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application with respect to pain and suffering only – reliance upon paragraph (c) of the definition – opinion of Medical Panel – s313(4) of the Act – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Slater and Gordon |
| For the Defendant | Mr J Batten | Russell Kennedy |
HIS HONOUR:
(a) General background
1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing his application, the plaintiff relies upon paragraph (c) of the definition of “serious injury” found in s325(1) of the Act. He is seeking leave to bring proceedings in respect of pain and suffering only. The matter comes before me by way of remission from the Court of Appeal, it having previously been heard by another judge of this Court.
2At the outset, I would point to a potentially interesting conundrum that has occurred in this case and possibly in others.
3On 21 August 2018, the defendant, through its agent, wrote to the plaintiff informing him that, on the basis of an assessment by Associate Professor Goldwasser, liability was accepted for a lower back injury. It would appear that such assessment was of a 10 per cent impairment benefit rating. The assessment was undertaken in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (my underlining).
4On 25 October 2019, a Medical Panel expressed the Opinion, by which this Court is bound, that the soft tissue injury of the plaintiff’s lower back had resolved and that he had no permanent physical condition of his lower back. Thus, the defendant has accepted (and paid for) a permanent impairment of the lower back and the Medical Panel, with its binding Opinion, has stated that there is no permanent physical condition of the lower back. It seems to me that the Opinion of the Panel must prevail.
5Section 313(4)(b) effectively provides that the Opinion of the Panel must be accepted as final and conclusive by any court, body or person. Thus, despite the acceptance and the payment by the defendant, the required permanence of the physical consequences is absent. However, the Panel specifically found that the plaintiff’s partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety and an Alcohol Use Disorder, reportedly in remission, is likely to persist for the foreseeable future. Where necessary, it shall hereinafter be referred to as “the mental injury”.
6There is no dispute concerning the happening of the accident and the plaintiff received weekly payments of benefits in respect of it. Liability was accepted by the defendant in respect of an injury to the lower back. An impairment benefit was paid. What occurred on 15 June 2016 shall hereinafter be referred to as “the accident”, and the physical injury suffered shall be referred to as “the back injury”.
7In summary, whilst it is admitted that the back injury occurred in the accident, what is contested is whether, as a result of the accident, the plaintiff suffered the mental injury, the consequences of which satisfy the statutory test of severity. The requirement of permanence has been satisfied as a result of the relevant answer of the Medical Panel.
8Mr J Valiotis of counsel appeared on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b) The plaintiff’s background, education and employment prior to the accident
9The plaintiff is 50 years of age, he having been born in 1971. He was previously married, but is now divorced. He is on good terms with his former wife and children, who are now aged approximately 19 and 14 years. He is living a single life.
10The plaintiff was educated to Year 12 level, finishing his education in the USA. He remained there, working for his father in a cleaning business, until returning to Australia in 1991. He originally obtained work in the construction industry. He then worked as a plasterer for some two years and as a labourer with Skilled Engineering for approximately two years. He subsequently worked for Pellicano Builders as a labourer for approximately 10 years. He was then employed as an Occupational Health and Safety Representative by VCon/Element V in 2014. It appears that he obtained a Certificate III in Occupational Health and Safety. He performed some minor manual tasks, but his principal role included inspecting and auditing workplaces, processes, potential hazards and the like. Whilst there, he sustained an injury to his lumbar spine on 26 June 2014. Shortly after that, his services were terminated.
11Following his injury, he experienced some low back pain and right hamstring pain. He was off work for a period, before gaining employment with the defendant, again as an Occupational Health and Safety Representative and essentially on a full-time basis. There was a manual component to the work, which involved such things as picking up signage and barricades, as well as opening and closing gates. His primary role concerned the controlling of risks in the workplace and the implementing of appropriate programs. It was whilst in this employment that the accident occurred.
(c) The plaintiff as a witness
12It is evident from the decision of the Court of Appeal in relation to the remitting of this case for rehearing that issues of credit played a significant role in the original hearing. That is not the case in relation to the hearing before me.
13On behalf of the defendant, Mr Batten made quite lengthy, detailed and well-researched submissions. That was so in relation to both his opening and closing addresses and to some discussion, at times involving questions from me. At no time did he suggest that the credit of the plaintiff was in issue. Further, Dr Justin Lewis, consultant psychiatrist, who examined the plaintiff at the request of his solicitors, stated that the plaintiff was an open and cooperative historian.
14I might add that I am in no way critical of Mr Batten in this regard. He outlined the issues comprehensively. The credit of the plaintiff was not one of them. I have reached my conclusion in relation to the plaintiff’s credit not being in issue independently of that, but it underlines that this was not a case in which the credit of the plaintiff was put in issue.
15During the closing address of Mr Valiotis, I observed that I certainly had no trouble with the credit of the plaintiff – see Transcript (hereinafter referred to as “T”) 85. I also note that the plaintiff’s treating psychologist, Ms Clare McCallum, described him as a consistent historian, there being no indication that he was not being forthcoming and honest in his interactions with her.
(d) The state of the plaintiff’s health prior to the accident
16The plaintiff had suffered from some other physical injuries or conditions. A history taken by the plaintiff’s treating psychiatrist, Dr Akinsola Akinbiyi, includes that the plaintiff had suffered a past episode of anxiety which lasted for approximately a fortnight, this being when his ex‑wife was pregnant approximately 16 years previously. He took no medication and apparently recovered fully. Apart from that, there is no evidence to suggest that he previously had any psychological or psychiatric consequences of any great magnitude or that he suffered from any other mental or behavioural disturbances or disorders. The episode described to Dr Akinbiyi does not give the impression of being of any great significance.
(e) The findings of the Medical Panel
17In this case, questions were referred to a Medical Panel, which provided its Opinion on 25 October 2019. In that Opinion, it answered some seven questions and also set out detailed Reasons for Opinion. I note that the Panel members included two psychiatrists. I leave to one side the vexed question of whether the Court, bound as it is by answers to the questions, also takes into account or considers the Reasons. In this particular case, I have confined myself to the answers contained in the Opinion, as going beyond them seems unnecessary.
18Question 1 enquired as to the nature of the plaintiff’s current medical conditions, if any, of the lumbar spine and of the mind. In relation to the plaintiff’s physical condition (Question 1(a)), the Panel stated that he had sustained a soft tissue injury to his lower back, which had now resolved, and currently he had no physical condition of the lumbosacral spine relevant to the claimed injuries. However, more to the point, is its answer to Question 1(b) as follows:
“b)Has a partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety and an Alcohol Use Disorder reportedly in remission.”
19Question 2 enquired of any material contribution to the plaintiff’s condition by the injury suffered by him on 15 June 2016. In relation to the plaintiff’s mental condition, the answer was as follows:
“In the Panel’s opinion Mr Forssell’s psychiatric condition was, and currently is, materially contributed to by the accepted back injury of 15 June 2016.”
20Question 3 enquired as to whether the medical condition was likely to be permanent, in that it was likely to persist for the foreseeable future. Again leaving to one side the lower back injury which, in the opinion of the Panel, had resolved, the Answer is as follows:
“… his partially remitted chronic Major Depressive Disorder Single Episode with prominent comorbid anxiety and an Alcohol Use Disorder reportedly in remission is likely to persist for the foreseeable future.”
21Question 4 enquired of the plaintiff’s current work capacity, in response to which the Panel’s opinion was that the plaintiff has a capacity for his pre-injury and other suitable employment. This Question was not divided into separate enquiries in relation to the physical and mental conditions.
22Assuming an affirmative answer to the enquiry concerning capacity for employment, Question 5 enquired as to the suitability of employment such as an Administration Officer, Facilities Officer, Trade Sales Assistant and/or Despatch Clerk. Again, the question is not divided into separate enquiries as to the physical and mental injuries.
23Answers to Questions 4, 5, 6 and 7, which are based upon a presumption of some incapacity for work, were not answered, save for the words “Not applicable”.
24Of course, in the present application the plaintiff is seeking leave only in respect of pain and suffering consequences. Apart from anything else, this is the inevitable result of the Answers of the Medical Panel relating to capacity for employment.
25In any event, it is the Panel’s opinion that the plaintiff’s psychiatric condition was and is materially contributed to by the accepted back injury, and that his Major Depressive Disorder Single Episode with prominent comorbid anxiety is likely to persist for the foreseeable future.
(f) The injury, its treatment, diagnosis and prognosis
26In a report of 17 February 2017, the plaintiff’s treating general practitioner, Dr Chalan Babu Kolli, referred to the plaintiff as becoming anxious due to the chronicity of pain, and being referred to a psychologist under a mental healthcare plan. Apparently the plaintiff was attending a psychologist but, at least at this stage, Dr Kolli had received no “feedback” from such practitioner.
27On 12 November 2018, Dr Kolli reported to the Accident Compensation Conciliation Service. In this report, Dr Kolli referred to the plaintiff as being unable to work due to chronic back pain, depression and anxiety, also observing that the pain had become chronic and was not responding, this leading to the depression and anxiety.
28Dr Kolli reported to the plaintiff’s solicitors on 22 March 2021. He stated that the plaintiff was still suffering from chronic back pain, depression, Generalised Anxiety Disorder and was under the care of a psychiatrist. His condition was the same and there had been no improvement. He had attended pain management and physiotherapy.
29As stated, the plaintiff’s treating psychiatrist has been Dr Akinsola Akinbiyi, who first saw the plaintiff upon referral from his general practitioner on 28 July 2018. The letter of referral from the plaintiff’s general practitioner, Dr Kolli, refers to the plaintiff as having depression following chronic work-related pain. Dr Kolli listed the antidepressant medications that had been tried without success.
30Dr Akinbiyi reported to the Accident Compensation Conciliation Service, the plaintiff’s solicitors, and the defendant on 20 December 2018. He took a history of the plaintiff’s depression commencing approximately two months after the accident, with progressive worsening thereafter. The plaintiff reported that his depression had “annihilated” his recreational activities, in addition to affecting his relationship with his children. Whilst he had had two girlfriends since his divorce, he now had no desire for female companionship. His ability to do household chores has also been affected. He could no longer do any gardening and now paid for the maintaining of his lawn. He no longer had a vegetable patch. His appetite was poor, his concentration fluctuated, and he was not sleeping well. He was sad, emotional and feeling worthless. He had poor concentration, poor sleep and various other symptoms.
31Dr Akinbiyi noted that the plaintiff had made some improvement on his current antidepressant medication, but his sleep was still interrupted and he had ongoing depressive symptoms. He had tried various medications. As stated, he had suffered a past episode of anxiety, which lasted for approximately a fortnight, when his ex-wife was pregnant approximately 16 years previously. He did not use any medication and got better. It was noted that he also had ongoing back pain. He was cooperative with the interview. When interviewed, he had good insight and judgement.
32The diagnosis of Dr Akinbiyi was that the plaintiff had a Major Depressive Disorder and a Generalised Anxiety Disorder. He had developed a mixed anxiety-depressive illness and chronic back pain as a result of the accident. He was currently unable to work due to the severity of his psychological illness. Dr Akinbiyi felt that there was a need to review the plaintiff in the next three to six months in order to be able to comment as to whether his incapacity would continue indefinitely.
33Dr Akinbiyi reported again to the plaintiff’s solicitors on 18 March 2020. He had last seen the plaintiff on 25 February 2020, when he had described ongoing moderate anxiety and depressive symptoms, in addition to lethargy as a side effect of his medication. Dr Akinbiyi again diagnosed a Major Depressive Disorder and a Generalised Anxiety Disorder. In relation to prognosis, he considered this to be guarded. There had been some improvement, but the plaintiff continued to suffer from moderate symptoms of anxiety and depressive illness. Ongoing lower back pain was a predisposing and perpetuating factor.
34Previously, Dr Akinbiyi had corresponded with Ms Clare McCallum, consultant psychologist, on 7 March 2020. This was a very brief letter, pointing out that the plaintiff was being managed for Generalised Anxiety Disorder and Major Depressive Disorder. Whilst it is apparent that Ms McCallum had already been treating the plaintiff, Dr Akinbiyi was referring him for psychotherapy.
35Dr Akinbiyi reported again to the plaintiff’s solicitors on 7 July 2021. He gave a history of events, including that, at a review on 19 August 2020, the plaintiff had stated that he had reduced the dose of the antidepressants that he was taking, as he wished to stay off medication. However, there was a deterioration in his mental state and, when reviewed on 9 December 2020, the dose of his medication was optimised from 20 milligrams to 40 milligrams daily, with some improvement in his mental state. It should be noted that the plaintiff throughout seems to have had a desire to reduce, if not terminate, his medication. According to Dr Akinbiyi, the plaintiff knew that he needed the medication, but expressed the wish to be off it. When reviewed on 10 March 2021, he repeated his wish to come off medication and had reduced his intake to 10 milligrams of Lexapro daily.
36When last reviewed by Dr Akinbiyi on 2 June 2021, the plaintiff was not sleeping well and had libido problems. The plan of Dr Akinbiyi was for the plaintiff to increase medication, see the psychologist fortnightly, and to be reviewed by him every four weeks. There was also a reference to exercises, hydrotherapy and the like. The diagnosis of a Major Depressive Disorder and a Generalised Anxiety Disorder remained. The prognosis was guarded. Whilst there had been some improvement in the psychological symptoms, the plaintiff continued to suffer from mild to moderate symptoms of anxiety and depressive illness. Due to the plaintiff trying to reduce the dose of his antidepressants, there was a strong likelihood of worsening of his anxiety and depressive symptoms in the near future. His ongoing lower back pain would continue to act as a predisposing and perpetuating factor in relation to his anxiety and depressive illness.
37Ms Clare McCallum, clinical psychologist, has treated the plaintiff and reported to his solicitors on 31 May 2021.
38The plaintiff had 29 appointments with Ms McCallum between April 2020 and May 2021. Some of these appointments were conducted via telephone due to the prevailing restrictions and others were in person. There were no indications that the plaintiff had not been fully compliant throughout. Ms McCallum had seen the plaintiff on referral from Dr Akinbiyi. The plaintiff had no history of any significant mental health problems prior to the accident. An appropriate history of the accident was taken. When Ms McCallum first saw the plaintiff on 14 April 2020, he presented with symptoms consistent with depressive and anxious mood and sleep disturbance. He engaged well throughout the 29 sessions. His symptoms of depression and/or anxiety were noted across all 29 appointments. He described his concentration and attention as poor, along with difficulties in motivating himself. Intermittent death wishes were noted. He also had consistently poor sleep.
39The plaintiff gave a history of experiencing symptoms of mood disturbance since the accident. With the passage of time and when the nature of his physical injuries became apparent, he began to experience lowered mood, poor motivation and periods of intense anxiety. His symptomatology had remained largely consistent with his initial presentation, with only minor fluctuations and more stabilisation in mood. The symptoms Ms McCallum described included poor sleep, resulting from both pain and racing thoughts at night. The plaintiff had ongoing vivid and disruptive dreams and had tried various medications.
40The plaintiff also was experiencing subjective and objective depressed mood, characterised by a decrease in motivation and energy, lethargy, reduced tolerance with himself and pervasive negative cognitions, including hopelessness, helplessness, powerlessness and feelings of defeat. He had persistent worrying thoughts relating to his ability to provide for himself and his children in the future. He had significantly reduced concentration and attention. He had experienced ongoing difficulties with short-term memory, resulting at times in poor goal-directed activity. He also had negative behaviour towards himself in response to high emotion and referred to the increased use of alcohol. This had stabilised, with recent reports of alcohol use within the social norms.
41The plaintiff also had reduced engagement with social supports and recreational activities. He had withdrawn somewhat due to his pain levels, his lowered motivation and worry concerning the opinion of others. Social interaction was difficult. He had been largely unable to engage in outdoor activities which he had enjoyed. He also had intense periods of anxiety response, resulting in feelings of panic, breathlessness, increased heart rate and disorientation. He had experienced fluctuating periods of anxiety and panic attacks. These could occur in any situation. As a result, he had also developed anticipatory anxiety.
42Ms McCallum stated that the symptomatology was overall of a moderate severity at present and some symptoms had stabilised slightly since his engagement in psychological treatment. However, the present symptoms were at a level which has significantly impaired his overall functioning, as well as his ability to maintain employment. Ms McCallum was of the opinion that the plaintiff met the criteria for Major Depressive Disorder and Generalised Anxiety Disorder, each of which she described, in brackets, as being chronic and moderate. The psychiatric and psychological diagnoses were a direct result of the injury suffered in the accident. She referred to his more dominant symptoms, experienced on a daily basis, including poor sleep, low motivation and energy, and anhedonia. Treatment focus had been placed on re-establishing short and long-term goals and, in particular, in relation to work opportunities and the like. She described the plaintiff as having been able to do very well.
43To Ms McCallum, the plaintiff had continued to report ongoing symptoms consistent with those with which he presented, but with a minor decrease in the intensity and an increased ability to manage the symptoms appropriately. However, whilst an improvement in presentation had been noted, he continued to experience significant levels of mental health disturbance and would require ongoing treatment to continue towards stabilisation which had not yet been achieved. The possibility of future decline in mental state remained. The possibility of future deterioration would be reduced by ongoing treatment.
44Ms McCallum recommended that the plaintiff continue with his current treatment for the foreseeable future. He had a good prognosis for psychological recovery based upon the fact that he was a determined and pragmatic individual, who had been open to any method of treatment that may assist. However, if the plaintiff’s physical injury remained chronic, and it appeared that it would, he would continue to be challenged by psychological difficulties. It was likely that he would continue to experience life events, whereby his physical limitations were disruptive to his goals and this would increase psychological distress. Ongoing psychological intervention was recommended. There remained the ongoing potential for long-term mental health difficulties. It was anticipated that there would be future difficult psychological times and ongoing treatment would be needed.
45On the basis of when he was last seen, Ms McCallum was of the opinion that the plaintiff had no psychological capacity for work in his pre-injury role and a return to it was likely to result in a decline in his mental state. Given his diagnoses, he did not have the motivation and stability that would be required for him to return safely to that previous work. She regarded the plaintiff’s capacity for employment to be significantly limited. He was highly motivated to return to employment. However, he would be limited in this regard, both in relation to duties and working hours.
46Ms McCallum commented that the plaintiff was likely to experience lifelong mental health challenges and it was recommended that he continue to work with his current treating team. He was continuing to experience levels of mental health disturbance at clinical levels impacting daily functioning. He remained vulnerable to ongoing depressive and anxiety symptomatology. His prognosis was dependent upon his ongoing physical health issues. He had no psychological capacity for pre-injury employment duties. Any potential for future employment would be in a limited capacity and only in a role which allowed him the flexibility to manage his psychological challenges.
47The plaintiff has also been examined for medico-legal purposes.
48At the request of his solicitors, he saw Dr Justin Lewis, consultant psychiatrist, on 29 May 2019. Dr Lewis obtained a history of events, including that of the accident and the plaintiff’s treatment immediately thereafter. He also obtained a history of the plaintiff’s endeavours to return to work and of the physical therapies in which he engaged. The plaintiff had developed the onset of mood difficulties soon after his injuries, on a background of pain, physical restrictions and occupational incapacity. He had previously been a very active individual, engaging in surfing, fishing, golf and camping. He described his sleep as “terrible” and he often woke during the night secondary to pain symptoms. He had a reduced level of self-care. He had become increasingly socially reticent secondary to poor motivation, depressed mood and pain symptoms. He had no interest in entering into a new relationship and described intermittent suicidal ideation. However, his children remained a strong protective factor against self-harm. He performed home-based exercises and was continuing with hydrotherapy.
49The plaintiff was seeing a consultant psychiatrist on a monthly basis. He described the medication regime upon which he had been. He stated that, since suffering the back injury, there had been significant overall improvement in his back pain symptoms, but he was continuing to experience significant intermittent pain. Psychologically, he felt worse with the passage of time. He described a strong determination to return to work, although identifying a number of barriers, including pain and anxiety about re-injury.
50Dr Lewis had been forwarded the report of Dr Ingram, consultant psychiatrist, of 18 June 2018 and noted that doctor’s opinion that the plaintiff was suffering from a Major Depressive Disorder, and that his psychological condition continued to be materially contributed to by the injury. The major barrier in relation to the plaintiff returning to work was his ongoing pain symptoms. I might add that a considerable amount of material that had been forwarded to Dr Lewis related to his back injury and capacity for employment as a result.
51Overall, the diagnosis of Dr Lewis was of a Chronic Adjustment Disorder with depressive features, differential diagnosis including a Major Depressive Disorder of moderate severity. Dr Lewis considered that the plaintiff’s psychiatric condition had probably stabilised. He presented with a number of depressive features, including lowered mood, impaired confidence, lowered self-esteem and intermittent suicidal ideation. As a consequence of the plaintiff’s psychiatric or psychological injury, he had given up a number of recreational interests, including surfing, golf, fishing and social activity. These restrictions were likely to continue into the foreseeable future. Dr Lewis expressed the opinion that the plaintiff now contended with chronic pain symptoms, which had contributed to significantly depressed mood, motivational difficulties, sleep disturbance and cognitive difficulties. Dr Lewis felt that the psychiatric prognosis was inextricably linked to the course of the underlying medical condition.
52Dr Lewis reported for a second time on 17 February 2020, having seen the plaintiff again. The plaintiff stated that there had been some improvement in his psychological state since the previous assessment. The dose of his antidepressant medication had increased and subsequently there had been a reduction in his generalised anxiety symptoms. He was sleeping better and there had been some improvement in his mood symptoms. However, he stated that “I still feel a depression, however, less so”. He rated his average mood as 4/10, with 0/10 representing very depressed mood. He remained socially isolated and reticent. He described poor quality of sleep, also referring to pain symptoms. He had poor concentration. He was seeing his psychiatrist, Dr Akinbiyi, on a monthly basis, describing the treatment as being particularly supportive.
53The plaintiff gave a history of depressed mood and feelings of demoralisation and despondency. The overall opinion of Dr Lewis was that the plaintiff continued to meet the criteria for a diagnosis of Chronic Adjustment Disorder with depressive features. This had partially remitted over recent months in response to an increased dose of antidepressant medication. The differential diagnosis would also include a Major Depressive Disorder (moderate severity). There remained a direct relationship between the Adjustment Disorder and employment.
54Dr Lewis was of the view that the plaintiff’s psychiatric condition had stabilised. The plaintiff continued to present with lowered mood from poor motivation, sleep disturbance and cognitive difficulties on a background of pain, physical restrictions and occupational incapacity. He would not be able to work in excess of 12 hours a week as a consequence of lower moods, poor motivation, sleep disturbance, cognitive difficulties, lack of confidence and persistent pain. His lowered mood, poor motivation, lowered libido and little interest in developing new recreational interests or hobbies were likely to continue for the foreseeable future. The plaintiff had lost significant confidence and self-esteem and remained anxious about his occupational potential. He required ongoing psychiatric care and monitoring of his psychotropic medication.
55Dr Lewis provided a supplementary psychiatric report to the plaintiff’s solicitors on 26 March 2021. This followed a telehealth interview with the plaintiff on 19 March 2021. On this occasion, the plaintiff stated that there had been a positive shift in his mental attitude and he had come to terms with the recognition that he was dealing with a chronic pain condition. He was feeling more positive and there had been a notable reduction in suicidal ideation over the past few months. He continued to experience good and bad days. There had been a general reduction in anxiety symptoms, although he was still subject to panic-like episodes. He had recommenced hydrotherapy. He remained under the psychiatric care of Dr Akinbiyi and was reviewed on a monthly basis. He continued to see his psychologist on a fortnightly basis. He had reduced his antidepressant medication, this being a self-initiated reduction, but then noticed a re-emergence of depressive symptoms and subsequently increased the dose. He was drinking alcohol to excess as an “anxiety release”. His average mood had improved to 5/10 (previously 4/10). His sleep was bad. He woke frequently, secondary to pain symptoms and ruminative thought. His concentration was “scattered”. He was still on antidepressant medication and a sedating antipsychotic.
56Dr Lewis diagnosed a Chronic Adjustment Disorder with depressive features, partially remitted. This remission had been in response to an increased dose of antidepressant medication. The differential diagnosis would also include a Major Depressive Disorder of moderate severity. There remained a direct relationship with employment. He regarded the plaintiff’s psychiatric condition as having stabilised, notwithstanding some described improvement. The plaintiff continued to struggle with lowered mood in a setting of pain, physical restrictions and occupational limitations. He continued to describe significant sleep and cognitive difficulties. He would benefit from ongoing psychiatric and psychological treatment. From a psychiatric perspective, he would have a capacity to undertake work duties for up to 12 hours per week. He would not be able to exceed this because of lowered mood, poor motivation, sleep disturbance and the like. He remained socially isolated. Restrictions on his activities and the like would probably continue for the foreseeable future, in accordance with the chronic nature of his medical condition. The plaintiff’s psychiatric prognosis was inextricably linked to the course of the underlying medical condition.
57Dr Robyn Horsley, occupational physician, reported to the plaintiff’s solicitors on 13 December 2018, having seen the plaintiff on that day. Given that the present application is in respect of pain and suffering only, and that the consequences of the physical injury to the lumbar spine have resolved (in the binding opinion of the Panel), large sections of the report of Dr Horsley are not of assistance.
58Dr Horsley noted that the plaintiff had been referred to a psychiatrist, Dr Akinbiyi, whom he consulted approximately every four weeks, and had done so for most of 2018. Recently, he had been referred to a psychologist and was to begin seeing that practitioner “after Christmas” – that is, presumably in early 2019.
59Dr Horsley referred to a psychiatric assessment from Dr Nicholas Ingram, this being dated 18 June 2018. She quoted his opinion that the plaintiff was suffering from a Major Depressive Disorder as a secondary consequence of chronic pain and inability to work or engage in other activities. Psychologically, he had become significantly depressed and it would be appropriate for him to be referred to a psychologist and to trial an antidepressant. Dr Ingram had noted that the plaintiff would be unable to return to his previous duties because of his psychological state.
60Having discussed more material in relation to the plaintiff’s physical injuries, Dr Horsley stated that a Beck Depression Inventory gave a score suggestive of severe depression with mild suicidal ideation. A Beck Anxiety Inventory gave a score suggestive of mild to moderate anxiety. She noted that the diagnosis of Dr Ingram was that the plaintiff had a Major Depressive Disorder secondary to the consequence of chronic pain and inability to work or engage in other activities. She believed that all symptoms were likely to persist. The testing to which reference has just been made indicated ongoing and significant mental health issues. Dr Horsley considered the prognosis as being guarded, although that prognosis may have included both physical and mental aspects of the injury.
61I turn now to psychiatric examinations on behalf of the defendant. I have already referred to the report of Dr Nicholas Ingram (see paragraphs 31, 59 and 60 above), which was put in evidence by both parties.
62Dr Alan Jager, forensic psychiatrist, saw the plaintiff at the request of the defendant, reporting on 6 March 2019. He took a detailed history. Whilst the plaintiff now felt depressed only some of the time and anxious only some of the time, he had difficulty getting to sleep and staying asleep. His energy level was low. His appetite level was low. He had limited concentration. The plaintiff also experienced passive, but not active, suicidal thoughts. Many years ago he had suffered from anxiety, was prescribed a course of antidepressant medication, and the anxiety resolved. There was no family history of psychiatric illness.
63Dr Jager diagnosed a Major Depressive Disorder in partial remission. He thought that the prognosis was likely to follow the path of the physical injury. Ongoing treatment from a consultant psychiatrist should continue. The plaintiff should continue on the antidepressant medication indefinitely and, as he had stabilised, his general practitioner should be able to provide maintenance treatment.
64Dr Jager reported again on 4 July 2021. The plaintiff’s consumption of antidepressant medication had reduced. The plaintiff was seeing Dr Akinbiyi every four weeks and a psychologist fortnightly. He was experiencing some depression, some anxiety and some anger, but enjoyed having time with his children. Again, it was noted that he had difficulty getting to sleep and staying asleep. His energy levels fluctuated from having very little to being alright. His libido was poor and he was impotent. His concentration was alright for driving, but reduced for reading. He was considering undertaking some voluntary work. It was noted that he had passive suicidal thoughts. Dr Jager was aware that the Medical Panel had found that the plaintiff had a Chronic Major Depressive Disorder in partial remission and an Alcohol Use Disorder in remission. He was also aware of the opinion of Dr Akinbiyi.
65Dr Jager specifically found that the plaintiff’s psychiatric condition interfered with his sleep, but not with other essential activities of daily living. His diagnosis was of a Chronic Major Depressive Disorder in partial remission. This was still materially contributed to by work, if work was still causing the physical injury. He felt that the plaintiff’s alcohol consumption was hazardous to his mental state. In relation to prognosis, Dr Jager said that the course of the plaintiff’s psychiatric condition was likely to reflect his physical state.
66That concludes my summary of the medical evidence.
67Turning to the diagnosis of the plaintiff’s condition, to a very considerable degree this has already been established by the finding of the Medical Panel. It has expressed the view that the nature of his current medical condition of the mind is that he has a partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety and Alcohol Use Disorder reportedly in remission.
68This does not vary greatly from the diagnosis of Dr Akinbiyi, the plaintiff’s treating psychiatrist, who has referred to the psychological injury as being a Major Depressive Disorder and a Generalised Anxiety Disorder. It is also similar to the diagnosis of Dr Lewis of a Chronic Adjustment Disorder with depressive features, the differential diagnosis including a Major Depressive Disorder of moderate severity. Thus, the diagnoses of the Medical Panel and of the doctors to whom I have referred seem to be largely in accord and, to state the obvious, given the binding nature of the responses of the Panel, I accept them.
69I am also of the opinion that the plaintiff’s psychological or psychiatric injury and its consequences essentially arose from the accident. The Panel has expressed the Opinion that his psychiatric condition was, and currently is, materially contributed to by the accident. It may be that the plaintiff had briefly been anxious following the birth of his daughter many years before, but any such symptoms had fully resolved. Insofar as the consequences of the accident represented an aggravation of some underlying condition, I am quite satisfied that such condition, if it existed, only did so on a temporary basis and that the plaintiff’s mental health symptoms are a consequence of the accident, rather than being the aggravation of a pre-existing and symptomatic condition.
70I am also satisfied that such consequences are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Again, it is the Opinion of the Panel that the plaintiff’s chronic Major Depressive Disorder Single Episode with prominent comorbid anxiety is likely to persist for the foreseeable future. The plaintiff’s Alcohol Use Disorder is described as being reportedly in remission.
(g) Other developments since the injury
71The plaintiff made some attempts to return to work on modified duties and for shorter hours, but could not maintain this. In February 2019, he lost his licence as a result of a drink driving offence. Essentially, he has continued to live alone, with regular visits from his children. He has maintained a comparatively friendly relationship with his former wife (they were divorced in 2010). His consumption of alcohol has varied somewhat.
Ruling
72As earlier stated, pursuant to s313(4) of the Act, the Opinion of a Medical Panel on a medical question is to be adopted and applied by any court and must be accepted as final and conclusive by such court. Accordingly, in considering whether the plaintiff has discharged the burden of proof, I shall accept and apply the Answers to which reference has been made above.
73Further, pursuant to the definition of “serious injury” found in s325(1) of the Act, that term is constituted by a permanent severe mental or permanent severe behavioural disturbance or disorder. In relation to the word “severe”, I would refer to what was said by Brooking J in Mobilio v Balliotis [1998] 3 VR 833 to the effect that “severe” is a stronger word than “serious”.
74What had the potential to be an involved matter has been rendered more complicated by the Answers of the Medical Panel, which Answers bind me. The Panel has clearly expressed the Opinion that the plaintiff has no physical condition of his lumbosacral spine relevant to the claimed injuries. His soft tissue injury has resolved. However, he has a partially remitted chronic Major Depressive Disorder, Single Episode with prominent comorbid anxiety. I would refer to the Answer to Question 2 as follows: “It is the Panel’s Opinion that the plaintiff’s psychiatric condition was, and currently is materially contributed to by the accepted back injury”. In Answer to Question 3, it is repeated that the plaintiff has no permanent physical condition of his lower back and that the injury has resolved, but his partially remitted psychological or psychiatric disorders, as referred to above, are likely to persist for the foreseeable future. That Answer is further complicated by the fact that there is reference to an Alcohol Use Disorder reportedly in remission. This is followed by the words “is likely to persist for the foreseeable future”. The singular verb “is” follows the word “remission”.
75It seems to me that the only way to read the above so that it makes grammatical and logical sense is that it was the Opinion of the Panel that the partially remitted chronic Major Depressive Disorder, Single Episode (with prominent comorbid anxiety and Alcohol Use Disorder reportedly in remission) is likely to persist for the foreseeable future. In other words, the prominent comorbid anxiety and an Alcohol Use Disorder reportedly in remission are either features of or an adjunct to the partially remitted chronic Major Depressive Disorder, Single Episode.
76Thus, I read and understand it to mean that it is not just the Alcohol Use Disorder which is likely to persist for the foreseeable future. It is the Major Depressive Disorder, Single Episode which is likely so to persist, and the other conditions mentioned are features of it. Despite the absence of punctuation and the singular verb, it is not just the Alcohol Use Disorder that “is likely to persist for the foreseeable future” or that is in remission.
77There is a further problem in relation to Answers 1 and 3. What do I make of the words “partially remitted”? This is potentially of some importance. To repeat the obvious, the legislation provides that the Court must accept the Opinion. The word “remit” has various meanings. The appropriate one, as set out in the Concise Oxford Dictionary, would seem to be “Abate, slacken, mitigate, partly or entirely cease from or cease”. The appropriate definition of “remission” is “Diminution of force, effect, degree ...”.
78Thus, I must accept that the plaintiff’s Major Depressive Disorder, Single Episode has partially abated, slackened, or in some way been mitigated. In other words, the binding Opinion of the Panel is that the relevant medical conditions of the mind which it has identified have abated or the like to an extent or degree which is not spelled out or otherwise described.
79The only other binding Answer of the Panel in its Certificate of Opinion, and which is of any possible relevance as an indicator of the level or degree of the pain and suffering consequences which the plaintiff has, is the Answer to Question 4. That is to the effect that the plaintiff has a capacity for his pre-injury and other suitable employment. Arguably that has some relevance to the extent of his pain and suffering consequences.
80I would add that, even if the Reasons for Opinion, in additional to the Answers, can be taken into account, they take matters no further.
81Dr Akinbiyi is the plaintiff’s treating psychiatrist. In his most recent report of 7 July 2021, Dr Akinbiyi stated that the plaintiff’s prognosis was guarded; that there had been improvement in his psychological symptoms; but that he continued to suffer from mild to moderate symptoms of anxiety and depressive illness. The plaintiff was on a reduced dose of antidepressants, causing Dr Akinbiyi to state that there was a strong likelihood of worsening of his anxiety and depressive symptoms in the near future. He referred to the plaintiff’s erectile dysfunction as being due to many factors, including the side effects of psychotropic medication, psychological illness and chronic pain. He considered that the plaintiff’s ongoing lower back pain would continue to act as a predisposing and perpetuating factor for his anxiety and depressive illness.
82The opinions of Dr Akinbiyi have to be seen in the context of the Opinion of the Panel that the plaintiff’s psychiatric condition was partially remitted and that he had a capacity for pre-injury and other suitable employment. It is also to be remembered that, for example, in the opinion of Dr Akinbiyi, the plaintiff’s erectile dysfunction could be due to many factors, including psychological illness and the chronic pain, it not being suggested that the latter is anything other than of physical origin. Indeed, earlier in his last report, Dr Akinbiyi has specifically referred to chronic lower back pain as being part of the physical diagnosis.
83In her report of 31 May 2021, Ms McCallum, the treating clinical psychologist, referred to the plaintiff’s symptomatology as being of overall moderate severity at the present, although at a level which has significantly impaired his overall functioning, as well as his ability to maintain employment. She also said that he had a good prognosis for psychological recovery, given the opportunity to continue engaging in treatment. She made the point that the plaintiff’s psychological health was tied to his physical health. That brings one back to the finding of the Panel in relation to the cessation of any relevant physical symptoms emanating from the accident.
84Ms McCallum also stated that, overall, the plaintiff has a good prognosis for psychological recovery, although this is considered to be somewhat dependent on his ongoing physical health issues. She also referred to him as being a good candidate for at least partial psychological recovery.
85The bottom line is this. Pursuant to s313(4)(b), the Court must accept the Opinion of the Panel as being final and conclusive. The Panel has specifically found that the plaintiff sustained a soft tissue injury to the lower back which has now resolved, and currently has no physical condition of the lumbosacral spine which is relevant to the claimed injuries. It has also found that the plaintiff’s psychiatric condition currently is materially contributed to by the accepted back injury.
86The decision of the Court of Appeal in the present matter is to be found at [2020] VSCA 304. Much of the judgment deals with the issue of whether the judge at first instance had acted unfairly in relation to findings adverse to the plaintiff’s credit. The Court found that this was so and remitted the case to be heard by a different judge. However, it also made some observations concerning the issue of disentanglement of physical and psychological contributions to incapacity. In relation to this issue, the Court stated as follows:
“However, a worker who seeks to claim damages for a psychological injury in accordance with para (c) can rely upon all psychological consequences, including those arising from an organic injury, as well as the physical consequences of a mental disorder. In Noori v Topaz Fine Foods Pty Ltd, this Court summarised the position succinctly when it stated that ‘no question of “disentanglement” arises under para (c) of the definition of serious injury’.”
The reference to Noori is [2018] VSCA 323.
87As I understand it, what was said in Noori could be illustrated by the following example. A shop attendant in a jewellery store is shot through the hand in the course of an armed robbery. The shop attendant suffers both the physical injury and a psychological or psychiatric reaction to what occurred and brings proceedings against his employer for having taken insufficient security precautions. The attendant relies upon both paragraphs (a) and (c). A Medical Panel finds that the attendant has recovered fully from the physical aspects of the bullet wound. That concludes any claim in that regard. However, the Panel also finds that the attendant has an ongoing and permanent psychiatric or psychological reaction to what happened, including the gunshot in the hand. The attendant is entitled to rely upon the psychiatric or psychological condition that developed as a result of what occurred, but, in the context of a paragraph (c) claim, is entitled also to rely upon what could be described as the physical shooting in the hand and, for example, the daily recollection of it. No question of disentanglement arises.
88If that somewhat laboured example is applied to the present case, no question of disentanglement arises and the plaintiff is entitled to refer to and rely upon the physical injury to the lower back and the circumstances in which it occurred as part of his paragraph (c) claim.
89It is also to be remembered that, as earlier stated, the credit of the plaintiff was not put in issue. I refer to paragraphs 12−15 above. I also appreciate that the test in relation to the applicability of paragraph (c) employs the use of the word “severe”, as opposed to “serious”. Of course, the diagnosis has already been established by reason of the Opinion of the Medical Panel. The questions to be determined then effectively raise the issues of what are the consequences of the mental or behavioural disturbance or disorder identified by the Panel and whether or not they satisfy the statutory test.
90When most recently seen by the treating psychiatrist, Dr Akinbiyi, the plaintiff was diagnosed as continuing to suffer from mild to moderate symptoms of anxiety and depressive illness but, as this was in the context of his trying to reduce the dose of his antidepressants (apparently of his own accord), there was a strong likelihood of worsening of his anxiety and depressive symptoms in the near future.
91To his treating psychologist, Ms McCallum, the plaintiff described his concentration and attention as being poor. He had difficulties motivating himself. He suffered from consistently poor sleep, and intermittent death wishes were noted. Ms McCallum stated that the plaintiff’s symptomatology had remained largely consistent with his initial presentation, with only minor fluctuations. Apart from his lowered mood, he had poor motivation and periods of intense anxiety. He had ongoing vivid and destructive dreams. He had depressed mood, a decrease in motivation and energy, lethargy, reduced tolerance of himself, and feelings of hopelessness, helplessness, powerlessness and defeat. I would refer to what has been set out above in paragraphs 39-47 in relation to the observations of Ms McCallum and the history taken.
92Ms McCallum referred to the symptomatology overall as being of moderate severity, with some slight stabilisation since the plaintiff had become engaged in psychological treatment. However, his present symptoms significantly impaired his overall functioning. Dominant symptoms experienced on a daily basis included poor sleep, low motivation and energy and anhedonia, which I understand to be an inability to experience pleasure from activities usually found enjoyable. He was continuing to experience significant levels of mental health disturbance, and the possibility of a future decline in mental state remained, although this could be reduced by ongoing treatment. If his physical injury remained chronic, he would continue to be challenged by psychological difficulties. His capacity for employment was significantly limited, although he was highly motivated to return to employment.
93The history taken by Dr Jager, examining on behalf of the defendant, included the fact that the plaintiff had difficulty getting to sleep and staying asleep. His libido was poor and he was impotent. He had passive suicidal thoughts. There was also reference to an “alcohol use disorder” which Dr Jager described as being in remission, although this seems to have been a fluctuating problem.
94To Dr Justin Lewis, consultant psychiatrist, the plaintiff described his sleep as terrible, although also referring to the fact that this was secondary to pain symptoms. He described intermittent suicidal ideation and having no interest in entering into a new relationship. In addition to intermittent suicidal ideation, Dr Lewis noted depressive features, including lowered mood, impaired confidence and lowered self-esteem. The plaintiff had given up a number of recreational interests. Dr Lewis referred to the plaintiff as having significantly depressed mood, motivational difficulties, sleep disturbance and cognitive difficulties.
95When Dr Lewis saw the plaintiff for the second time, the dose of his antidepressant medication had increased, the plaintiff was sleeping better and there had been some improvement in his mood symptoms. However, he remained socially isolated and reticent. He still had poor quality sleep, whilst also referring to pain symptoms. He had poor concentration. Overall, Dr Lewis referred to lower mood, poor motivation, sleep disturbance, cognitive difficulties, lack of confidence and persistent pain. There was also lowered libido, significant loss of confidence and self-esteem, and anxiety about his occupational potential.
96When Dr Lewis reported following a Telehealth interview on 19 March 2021, there had been some improvements, but the plaintiff was still seeing his psychiatrist on a monthly basis and his psychologist on a fortnightly basis. He had reduced his antidepressant medication, being a self-initiated reduction, but there was then a re‑emergence of depressive symptoms. He had then increased the dose and was also drinking alcohol to excess. His sleep was bad and his concentration was scattered. The remission in relation to the plaintiff’s symptoms had been in response to an increased dose of antidepressant medication.
97In his most recent affidavit, which he adopted as being true and correct, the plaintiff described himself as being mentally in a poor state, suffering from chronic depression that has not improved, and having lowered mood. He referred to himself as drinking excessively. He referred to his inability to work and being mentally in a poor state with dark thoughts and alcohol abuse. He continued to struggle with poor sleep, this being not only because of pain but also because his mind was churning. The resultant fatigue impacts upon his mood. He also swore to the following:
“My depression keeps me down and trying to get on with life over the course of the past few years has been incredibly difficult.”
98He referred to his thoughts and feelings of hopelessness and the impact upon his concentration. At times he has thought about ending his life. He finds it very hard to keep his anger and anxiety under control. He also referred to his erectile dysfunction. He described himself as feeling hopeless and without much optimism. His attempts to get off medication have not been successful. His mental state meant that he continued to take medication and receive treatment.
99In his oral evidence, the plaintiff stated that he had not stopped having “night terrors and nightmares”, although having those once per month. I would refer to T54. I do not interpret the reference to “night terrors and nightmares” as incorporating all sleeping problems. That would not be consistent with the overall impression conveyed by the medical examiners. Overall, the impression given by the plaintiff in his oral evidence was that, whilst he may look for some form of employment and has tried to reduce both the level of his medication and his alcohol consumption, he is still beset by problems. Of his own accord, he had reduced his medication intake. When he had tried going without medication in the past he had “gone back to square one almost” – see T56. Accordingly, Dr Akinbiyi had only recently instructed him to increase his medication intake.
100When all the above is taken into account, I am of the opinion that the consequences of the plaintiff’s mental injury are severe. There are substantial interruptions to his sleep. I accept that he is, effectively, impotent. At times he has been suicidal, and it seems to have been his attachment to his children that has caused him to attempt to reject such thoughts. Constantly he has been on what appears to be a reasonably substantial regime of medication. His attempts to reduce or eliminate the reliance on medication have been unsuccessful and, shortly before the hearing of this matter, he was again put back on a higher level of medication by his treating psychiatrist. For a considerable time he has been on what might be considered to be a high level of treatment. For a lengthy period, there have been fortnightly visits to his psychologist. He continues to see his treating psychiatrist on a monthly basis. His employability has suffered greatly. When all of the above is taken into account, on the balance of probabilities, it seems to me that the plaintiff has satisfied the requirements of paragraph (c) of the definition of serious injury. The requirements of the word “severe” have been satisfied.
Conclusion
101The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering.
102The question of the disposition of that part of the original application involving paragraph (a) of the definition was raised during the conduct of the hearing. It was left to one side.
103I shall hear the parties generally as to any further orders that are required, including costs orders and whether any order is needed following the Opinion of the Medical Panel which effectively brought to an end that part of the application based upon paragraph (a) of the definition.
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