Fudyma v Hanson Australia (Holdings) Pty Ltd
[2024] VCC 825
•13 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01411
| DARREN MATTHEW FUDYMA | Plaintiff |
| v | |
| HANSON AUSTRALIA (HOLDINGS) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 May 2024 | |
DATE OF JUDGMENT: | 13 June 2024 | |
CASE MAY BE CITED AS: | Fudyma v Hanson Australia (Holdings) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 825 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the respiratory system due to chemical burns – psychiatric injury and psychological condition – disentanglement of consequences between the physical and psychiatric injury – disentanglement of the consequences that are not related to the employment – causation of the physical injury to the plaintiff – causation of the psychiatric injury to the plaintiff – pain and suffering damages – loss of earning capacity damages – whether the plaintiff has satisfied the statutory standard in respect of the serious injury application in respect of both physical and psychiatric injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Humphries and Anor Poljak [1992] 2 VR 129
Judgment: The plaintiff’s application for serious injury certificate in respect of both physical and psychological/psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr P Haddad | Carbone Lawyers |
| For the Defendant | Ms L Burke | Moray & Agnew Lawyers |
HIS HONOUR:
1The plaintiff brings this application by way of Originating Motion dated 31 March 2023. The plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of and in the course of his employment with the defendant and, in particular, on 11 July 2020.
2The plaintiff seeks, in respect of the physical injury to his respiratory system, certification for serious injury for both pain and suffering and loss of earning capacity. The plaintiff originally stated that this injury occurred on 11 July 2020, but in the evidence before this Court, expanded the time to being within the course of his employment with the defendant between February 2019 and 11 July 2020.
3The plaintiff also seeks certification for serious psychiatric injury as a result of his employment with the defendant on the basis of both pain and suffering and loss of earning capacity. There was no frank injury or injury date referred to in the psychiatric injury. The plaintiff’s claim is that his prior psychiatric condition was aggravated to the extent of a serious injury.
4The plaintiff gave evidence and was cross-examined extensively. The plaintiff tendered the following exhibits.
· Exhibit “A” from the Plaintiff’s Amended Court Book (“PCB”), dated 30 April 2024, pages 6 to 195.
5The defendant tendered the following exhibits:
· Exhibit 1, the Defendant’s Amended Court Book (“DCB”), pages 4 to 41; 56-62 and 65 to 75.
· Exhibit 2, video surveillance film of the plaintiff taken on 1 July 2023, 28 November 2023, 18 April 2024, 20 April 2024, 22 April 2024 and 5 April 2024.
· Exhibit 3, a summary schedule of the surveillance of the plaintiff conducted for and on behalf of the defendant.
6At the commencement of the proceedings, Ms Burke, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff has not made out the respiratory injury as satisfying the statutory threshold test for serious injury;
(b) the aggravation of the psychiatric injury does not meet the statutory test for psychiatric injury as a serious injury;
(c) the plaintiff’s credibility;
(d) the plaintiff has not disentangled the symptoms and consequences relevant to non-compensable injuries relevant to the plaintiff’s back, shoulders, neck or knees and ankle;
(e) the plaintiff has not disentangled the consequences from the psychological/psychiatric injury and the physical injury referred to as a respiratory injury.
The statutory scheme
7The application is brought under the definition of “serious injury” contained in s325(1) of Workplace Injury and Rehabilitation Compensation Act 2013 (“the Act”), which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function.
8The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment with the defendant on or between February 2019 and 11 July 2020;
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c) The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) Subsection (2)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in a range of possible impairments or losses of a body function, may be fairly described as being “more than significant” or “marked”, and as being “at least very considerable”;
(e) Subsection (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622
9I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
10The plaintiff was born in Melbourne in 1970 and at the time of the hearing was fifty-four years of age.[2]
[2]PCB 6
11The plaintiff completed high school at Year 11 level.[3] The plaintiff then completed a three-year apprenticeship in fitting and turning and a subsequent year-and-a-half at a carpentry job.[4]
[3]PCB 7
[4]PCB 7
12The plaintiff has predominantly worked in the workforce as a truckdriver. In particular, the plaintiff was a driver of fuel transportation vehicles.
13As is the nature of truckdrivers, the plaintiff has had a number of employers during the course of his working life. Predominantly, he had worked for Cootes Transport (“Cootes”) and remained in that employment up until April 2014.[5] In 2014, the plaintiff suffered a nervous breakdown and as a result of that breakdown, the plaintiff ceased his employment with Cootes.[6]
[5]PCB 7
[6]PCB 7
14The plaintiff’s father passed away in 2015. He worked for a short time as a driver for K&S Energy. Again, his mental health led to him resigning from that employment.[7]
[7]PCB 7
15The plaintiff then commenced work at Toll Transport (“Toll”) in 2017. He remained in that employment for three-and-a-half months before he resigned from Toll and commenced WorkCover proceedings in respect of injury to his right knee, his back and psychiatric injury.[8] I note here that the plaintiff never mentioned this claim for worker’s compensation from Toll in his three affidavits filed in this application. The plaintiff did say that he had worked for Toll for eight months.[9]
[8]Transcript (“T”) 23
[9]PCB 7
16The plaintiff was off work after he ceased his employment at Toll in July 2017 and did not resume employment until commencing with the defendant in this application in February 2019 as a cement truck driver. In the period of time between July 2017 and the commencement of employment with the defendant in this case, the plaintiff was under the care of Dr Ashok Singh, psychiatrist, and a psychologist counsellor at the Sunshine Clinic, for mental health issues.[10] The plaintiff was prescribed Avanza in 2014 and has been continually prescribed that medication from that time until the date of the hearing.[11]
[10]T26
[11]T19
17The plaintiff, in his evidence, stated he had left four jobs due to depression and anxiety prior to his employment with the defendant.[12] The plaintiff gave evidence that he continued to see a psychologist during the course of his employment with the defendant.[13]
[12]T30
[13]T80
The injury with the Defendant
18The plaintiff worked as a cement truckdriver with the defendant.[14] The plaintiff’s claim is that he was injured in the course of his employment as he was frequently subjected to aggressive comments and bullying which made him suffer extreme stress and anxiety.[15]
[14]PCB 8
[15]PCB 8
19The plaintiff’s affidavit material revealed that he was at work on 11 July 2020 and loading his cement truck. There was a blockage from the supply point into his truck and he attempted to rectify that blockage. In the process, he was covered in cement dust, and stated that he breathed in some of the cement dust. He did not have a mask or any respiratory protection at the time of this incident. This incident was the basis for his respiratory injury claim in this case.
20Two days after the incident, the plaintiff was stood down from his work, pending an investigation into the incident regarding the cement spill.
21He stated that he was then involved in a meeting with his supervisor and transport manager on 16 July 2020 and he was told he was to be demoted and banned from attending at Cement Australia, the delivery point for the cement. The plaintiff stated he was so intimidated by the meeting that he resigned. On the day after, the plaintiff sought to withdraw his resignation, but the transport manager refused to accept that decision.[16]
[16]PCB 10
22The plaintiff states that he now has a permanent psychiatric condition of depression and anxiety which excludes him from the workforce indefinitely. Since the resignation with the defendant, the plaintiff has not applied for any employment.[17]
[17]T82
The respiratory injury
23The plaintiff relies upon his three affidavits, sworn 30 September 2022, 28 September 2023 and 2 April 2024, as evidence of his respiratory injury as a result of the employment with the defendant. The initial complaint of respiratory injury focused on the incident of 11 July 2020. The plaintiff, in re-examination, stated that he had been exposed to cement dust at a time prior to the 11 July 2020 incident. He said he was symptomatic prior to the cement spill, but it got worse after that incident.[18] The plaintiff went on to state that he was suffering from shortness of breath in the Christmas period of 2019, but thought he was lacking fitness.[19] I note here that the plaintiff never gave a history of the previous dust exposure at the defendant’s place of work to any of the medical examiners in respect to his respiratory injury.
[18]T92
[19]T93
Medical evidence in respect of respiratory injury
Dr Satish Singh, general practitioner
24The plaintiff relied on numerous reports from Dr Satish Singh.[20] In his final report, dated 14 August 2023, Dr Satish Singh stated the following in respect to the plaintiff’s respiratory injury:
“As you would be aware that … [the plaintiff] has had [a] second opinion from a respiratory physician Dr (Prof) Natasha Smallwood on 23/11/2022 and follow up on 15/02/2023, who opined that there was no evidence of any significant chronic lung disease.”[21]
[20]See pages 45 to 59 of the PCB
[21]PCB 58
25Dr Satish Singh noted that the last consultation with the plaintiff was on 7 August 2023.
26The plaintiff’s general practitioner at that time was reliant upon the expertise and opinion of Associate Professor Natasha Smallwood, a respiratory physician.
Dr James Bartlett, respiratory and sleep physician
27Dr Bartlett prepared two reports, dated 2 February 2021 and 9 March 2021. Dr Bartlett, in his first report, expressed his wish to conduct a sleep study and lung function test in order to make a proper diagnosis of the plaintiff’s condition. At the time of the first report on 2 February 2021, Dr Bartlett’s impressions were that:
“1.Dust irritation delay was causing upper airway symptoms.
2.It is possible with aggravating factors of reflux, possible sleep apnoea, postnasal drip and Coversyl.
3.Chronic sputum production also brings in the possibility of bronchiectasis.”[22]
[22]PCB 60
28After the sleep study had been conducted and considered, Dr Bartlett stated as follows:
“He continues to have reflux which seems to be relatively well controlled with PPIs. This is likely to be causing him or worsening his symptoms of cough and may require referral to a gastroenterologist.”[23]
[23]DCB 10
Dr Jonathan Burdon, consultant respiratory physician
29Dr Burdon was a medical examiner for the purposes of this application. He prepared three reports, dated 28 September 2020, 17 February 2022 and 28 October 2023. Dr Burdon’s diagnosis was that the plaintiff had suffered from a lower respiratory tract chemical burn due to the inhalation of cement.[24] Dr Burdon was of the opinion that a respiratory tract burn arose from the plaintiff’s employment with the defendant.[25] Dr Burdon’s opinion in 2020 was that the plaintiff was capable of gainful employment, provided that his employment involved no more than sedentary or light duties and did not expose him to dust or fumes, cold air or any environmental conditions which led to an increase of his current symptoms.[26]
[24]PCB 84
[25]PCB 85
[26]PCB 86
30Dr Burdon’s second report, dated 17 February 2022, was prepared on the basis of further medical reports being received by Dr Burdon from Dr Bartlett, Dr Satish Singh, the general practitioner, and a report of Dr John Gill, psychiatrist.
31In that report, Dr Burdon confirmed his diagnosis that the plaintiff had suffered from a lower respiratory tract chemical burn due to the inhalation of cement dust. He stated that cement contains a number of different constituents, including limestone and calcium carbonate. These substances will cause a caustic-type burn in the lower airway.[27] In the report of February 2022, Dr Burdon stated that the plaintiff had potential future employment prospects involving sedentary activities only.
[27]PCB 91
32Dr Burdon’s final report was dated 28 October 2023. He examined the plaintiff for the purposes of this report on 26 October 2023. Dr Burdon also had medical reports from other practitioners, including reports from Dr Smallwood and Associate Professor Eli Dabscheck. After reviewing all the enclosed medical reports, Dr Burdon stated that:
“… [I] would expect that, when in contact with the airway mucosa (lining) that this would cause at least a mild caustic burn. … .”[28]
[28]PCB 192
33Dr Burdon then stated as follows:
“I[n] my view these symptoms are of such severity as to make him, for practical purposes, unemployable because any physical activity increases his symptoms to a degree which would result in an inability to continue working.
…
I am of the view that, in the absence of any other symptoms, such as he has, … [the plaintiff’s] present medications would not affect his ability to undertake employment except that to note that if he is taking significant doses of Valium he would be well advised not to drive (I note that he told me that he ordered a[n] Uber taxi to come to his appointment with me).”[29]
[29]PCB 194
34This final opinion of the plaintiff’s respiratory injury has increased the consequence for the plaintiff from being employable in a sedentary role to being unemployable.
35Dr Burdon is a medico-legal reporter in this case. He is the only doctor that says the plaintiff is unemployed as a result of his respiratory injury. He is also the only doctor that diagnoses a chemical burn to the lower respiratory tract of the plaintiff. The other medical practitioners in respect of the respiratory injury do not agree with Dr Burdon in this regard.
Dr Geoff Markov, rheumatologist and internal medicine practitioner
36Dr Markov prepared a report for the general practitioner, Dr Satish Singh, dated 20 January 2023. Dr Markov noted that he could not detect any objective abnormalities on respiratory examination, but the plaintiff frequently coughed on deep inspiration. General examination was otherwise unremarkable. Dr Markov’s opinion was as follows:
“I can find no physical explanation to explain … [the plaintiff’s] fatigue and I suspect it is psychologically based. I do not think any further investigations are required and nor is any treatment. I presume that an assessment in regards to obstructive sleep apnoea has been undertaken but I do not know the results of that; in any event he is not having treatment for sleep apnoea nor for any other respiratory condition.”[30]
[30]DCB 75
37It is clear from this report that Dr Markov did not think the plaintiff’s respiratory injury was of any significance and was unable to properly diagnose any condition consistent with a respiratory injury.
Dr Umberto Boffa, consultant occupational and environmental physician
38Dr Boffa prepared a report for the plaintiff’s solicitors dated 12 December 2021. Dr Boffa saw the plaintiff on 9 December 2021. Dr Boffa’s opinion was as follows:
“The incident at work on 11/7/20 remains a significant contributing factor to his mild respiratory complaint but not to aggravation of a relevant pre-existing physical condition and he remains fit for sedentary tasks and driving duties physically, albeit he has developed anxiety surrounding driving.
Based on the history provided, the worker’s respiratory condition would not preclude him from working fulltime but duties would need to avoid repetitive physical exertion such as climbing stairs[,] lifting and carrying more than 10kg.”[31]
[31]DCB 41
39Dr Boffa’s opinion clearly was that the plaintiff could work full time if the only restriction on his ability to work was his respiratory condition.
Associate Professor Natasha Smallwood, respiratory physician
40Associate Professor Smallwood prepared two reports, dated 15 February 2023 and 23 November 2022. Both of these reports are directed to the plaintiff’s general practitioner, Dr Satish Singh.
41In her report dated 23 November 2022, Associate Professor Smallwood reports as follows:
“On examination today oxygen saturations were 98% on room air. Blood pressure 130/90. Pulse 74 bpm. There was no clubbing, lymphadenopathy or cyanosis. There was no peripheral oedema. On auscultation of his chest he had good air entry bilaterally with no crackles or wheezes. Heart sounds were dual with nil added.
I believe that … [the plaintiff] has had some recent bloods and I will try to get a copy of these. A CT scan (I-MED February 2021) demonstrated just some very minor left lower lobe traction bronchiectasis with no other significant abnormalities found. The letter from Dr Jonathan Burdon in February this year indicated that … [the plaintiff] also had some lung function in February 2021 (Werribee Lung Function Laboratory) which demonstrated normal spirometry and normal gas diffusion capacity.
In summary … [the plaintiff’s] symptoms are certainly out of keeping with his investigations 20 months ago therefore it is difficult to explain these. I have suggested he have a repeat CT, lung function tests and an echo, which I have organised. I will see him in February to follow these up and to delineate whether he does have any significant new respiratory pathology.”[32]
[32]DCB 73
42Associate Professor Smallwood saw the plaintiff again on 15 February 2023. In her report of that date, she stated as follows:
“In summary there is no evidence of any significant chronic lung disease on lung function or CT, furthermore there is no evidence of any heart failure, pulmonary hypertension or sleep disordered breathing on his echo or sleep study. It is therefore difficult to explain his symptoms and I wonder if these may relate to psychological issues, as well as being overweight and deconditioned. Today I have reassured him that I have not found any chronic lung disease and I have encouraged him to try and exercise and lose weight. There is no treatment that I can recommend to improve his symptoms otherwise. I have therefore discharged him from my care. … .”[33]
[33]DCB 37
43It is clear from Associate Professor Smallwood’s report that extensive tests have been undertaken to try and diagnose any respiratory injury for the plaintiff. She has found none.
Associate Professor Eli Dabscheck, sleep disorder and respiratory physician
44The plaintiff was sent to Associate Professor Dabscheck for medico-legal reporting on behalf of the defendant in this case. He attended Associate Professor Dabscheck’s premises at the Epworth Sleep Centre on 28 February 2023. Associate Professor Dabscheck noted a dry cough throughout the interview with the plaintiff. In his report dated 28 February 2023, Associate Professor Dabscheck stated his diagnosis as follows:
“I am not able to make a specific respiratory diagnosis. The normal CT chest combined with normal lung function largely excludes significant respiratory disease. Silicosis was excluded with a normal chest CT. Asthma was excluded with normal lung function and a negative mannitol challenge.
The exposure incident in July 2020 has led to cough which may be caused by laryngeal hypersensitivity / laryngeal irritation.
… [The plaintiff] experiences significant shortness of breath with minimal exertion (such as when washing dishes) despite normal lung function and as far as I am aware, normal cardiac function. Shortness of breath in the absence of significant cardio-respiratory pathology raises several possibilities. It is possible that the exposure incident has caused an ‘abnormal breathing pattern disorder’, also known as ‘dysfunctional breathing’. Furthermore, it is possible that … [the plaintiff] has developed deconditioning which is contributing to his symptoms.”[34]
(sic)
[34]DCB 134-135
45Associate Professor Dabscheck’s opinion was that the plaintiff had a capacity to work and could resume working in a driving role.[35] Associate Professor Dabscheck made the following observation:
“The … [plaintiff’s] respiratory symptoms are out of keeping with the normal lung function and apparent normal cardiac function. … .
The … [plaintiff] describes significant symptoms of depression. I recommend that a psychiatrist comments as to whether this is contributing to the respiratory symptoms.”[36]
[35]DCB 135
[36]DCB 136
46In Associate Professor Dabscheck’s opinion, the plaintiff has a good prognosis in respect of normal lung function and with normal chest imaging.[37]
[37]DCB 137
Dr Ashraful Mamum, general practitioner
47The plaintiff has been seeing Dr Ashraful Mamun as his general practitioner since early November 2023. Dr Mamun prepared a report dated 24 April 2024 for the plaintiff’s solicitors. Dr Mamun was asked to give his opinion about a diagnosis and conditions sustained by the plaintiff on 11 July 2020. Dr Mamun responded as follows:
“… [The plaintiff] is suffering from respiratory symptoms since his work incidence with cough, shortness of breath in minimal exertion with invistigation not suggesting a formal diagnosis. He has symptoms on [a] daily basis despite normal clinical examinations on mulitiple times. He has seen multiple respiratory specialist[s] who could not explained the cause of his respiratory symptoms. His symptoms are related to his occupational exposure as they started since then despite not having a formal diagnosis. As mentioned earlier it could be related to chemical burn or laryngeal hypersensitivity.
He certainly has exacerbation of his Social anxiety and panic attacks since the incidence which has hugely impacted his life and made him socially isolated.”[38]
(sic)
[38]PCB 173
48Dr Mamun went on to state that he did not think the plaintiff had a capacity to work due to a combination of his coughing and shortness of breath and his mental health and panic attack symptoms.[39]
[39]PCB 174
Conclusion
49On the basis of the medical evidence presented in this case, and the evidence of the plaintiff, I am not satisfied that the plaintiff has established, on the balance of probabilities, that he suffers from a respiratory illness or condition, which results in the consequence he is unable to work because of it, or, alternatively, that his activities of daily living are affected to the extent they meet the statutory test of “at least very considerable”. I form this conclusion without descending to the further evidence from the plaintiff which relates to his comorbidities in respect of his shoulder injuries, his neck injuries and his back injuries on a physical basis, which are referred to in the transcript of the evidence.[40] Further, the plaintiff has not disentangled his psychiatric condition from his respiratory complaints and a number of the doctors I have just referred to have queried whether his psychiatric condition is underlying his respiratory symptoms.
[40]Between T7-11
50The application for serious injury by the plaintiff in respect of his respiratory injury arising from the incident on 11 July 2020, or in the course of his employment generally, is dismissed. I am not satisfied that the consequences of the alleged respiratory injury amount to being “at least very considerable” and I do not accept the evidence amounts to a serious injury precluding the plaintiff from engaging in full-time employment.
Psychiatric injury
51The plaintiff’s claim for serious injury arising from his employment with the defendant is one of aggravation. The plaintiff had previous psychiatric injuries and conditions before his employment commenced with the defendant. The plaintiff must establish, on the balance of probabilities, that the extent of the aggravation to his psychiatric or psychological complaints is severe.[41]
[41]Humphries and Anor v Poljak [1992] 2 VR 129
52The plaintiff had previously ceased his employment in 2014 with Cootes because of severe anxiety and depression.[42] The plaintiff, in his first affidavit, states that at that time, he had a nervous breakdown.[43] In his evidence, the plaintiff stated that he was prescribed Avanza for his mental health and has continued to take it until the present time.[44] The plaintiff commenced work with K&S Energy in September 2015 and remained in that employment until February 2016. He left that place of employment due to depression and anxiety.[45] In respect of this employment, the plaintiff stated he commenced his work two days after he had buried his father in August 2015.[46]
[42]DCB 4
[43]PCB 7
[44]T19
[45]T35
[46]T85
53The plaintiff then commenced employment with Toll on 3 April 2017. He was in that employment until his resignation on 21 July 2017.[47] The plaintiff was certified as incapacitated from work due to a combination of his right knee injury, anxiety and depression, and his lower back injury.[48]
[47]DCB 62
[48]DCB 67
54In 2018, the plaintiff was off work for approximately one year. He attended a psychologist and a counsellor at the Sunshine Clinic. He was also seeing a psychiatrist, Dr Ashok Singh, from 2018 onwards.[49]
[49]T26
55In the course of evidence, it was put to the plaintiff that he had left four previous jobs because of depression and anxiety. The plaintiff responded to that question as follows:
“Because of depression and anxiety, I couldn’t hold down - through no fault of my work ethic, but I couldn’t hold down a job, because of my symptoms. So I would - possibly would have left four jobs.”[50]
[50]T30
56On the evidence before the Court, it is clear the plaintiff had left three separate workplaces between 2014 and prior to commencing with the defendant as a truckdriver. The reason for leaving those three jobs was a combination of depression and anxiety, and in respect of the employment with Toll, a physical injury to his knee and back.
57Dr Ashok Singh, in his report dated 24 September 2018, stated that the plaintiff suffered from Adjustment Disorder with Depression and Anxiety, and chronic back pain and anger issues. Dr Ashok Singh recommended that the plaintiff do the following:
· Take Lexapro, 40 milligrams daily
· Take Epilim, 200 milligrams nocte
· Take Endep, 10 milligrams nocte
· See a psychologist
· See a pain specialist
· In case of crisis contact the CATT team
· He is not suitable for any job for twelve months
· Please assist him with his Centrelink forms.
58The recommendations by Dr Ashok Singh were made on 24 September 2018.[51]
[51]PCB 30
59The plaintiff was treated by a psychologist at IPC Health, whose first name was “Ian”, in 2019. There was no report in this case from that psychologist.[52]
[52]PCB 98
60The plaintiff continued to see Dr Ashok Singh, up to the present time. Dr Ashok Singh’s last report was dated 28 August 2023, and he notes that the last time he had reviewed the plaintiff was 5 July 2023. In that report, Dr Ashok Singh was unable to say if the plaintiff’s capacity is permanent.[53] Dr Ashok Singh recommended the engagement of an occupational therapist to prepare an assessment of whether or not the plaintiff was able to return to work. Dr Ashok Singh was not prepared to comment on the plaintiff’s prognosis.[54]
[53]PCB 43
[54]PCB 43
61Dr Ashok Singh stated as follows:
“… [The plaintiff] has issue with anxiety and depression and mood symptoms when he had seen me in 2018. According to him his symptoms had got worse after the incident at his work place in July 2020. According to him his conditions had got worse in [the] course of his employment. But as the history suggest that he already had pre-existing conditions, which had been aggravated due to work related stress and bullying.”[55]
(sic)
[55]PCB 43-44
62Dr Ashok Singh was recommending continuing psychological and psychiatric treatment. Dr Ashok Singh notes that the plaintiff continues to take medication. The opinion from Dr Ashok Singh does not establish that the plaintiff has suffered an aggravation to the extent of being properly described as “severe” as required under the legislation.
The credit of the Plaintiff
63In the assessment of cases for psychiatric injury under part (c) of the application for serious injury certification, the credibility and accuracy of the plaintiff’s evidence and complaint of symptoms is a critical factor. I have had the advantage of observing the plaintiff giving evidence from the witness box. I am not satisfied the plaintiff was accurately and consistently stating the consequences of the psychiatric injury to him. This is not to say that the plaintiff was deliberately misleading the Court, but, rather, that he was given to exaggeration of his symptoms and the consequences of the alleged psychiatric injury to him.
64In this case, the plaintiff’s credit was challenged on the basis of surveillance video film of him. Surveillance video is of limited use in assessing the effect of psychiatric symptoms on a plaintiff. The surveillance log in respect of the plaintiff sets out the surveillance that was conducted over twenty-three separate days. Of those twenty-three days, on twenty of those days, a film of the plaintiff was taken of varying duration. The period of surveillance dates was between 1 November 2020 and 22 April 2024. In the hearing, a total of six days of surveillance of the plaintiff that were filmed was shown. A total of 27 hours of surveillance was conducted on those six days. A total of one-hour, 42 minutes and 30 seconds of the filming of the plaintiff was produced.
65The film of the plaintiff showed him walking his three dogs on a number of occasions. He was also seen to be speaking to neighbours on the walk with his dogs. The plaintiff was observed and filmed shopping at Coles, attending car dealers and speaking with his neighbour. In particular, on 5 April 2024, the plaintiff was speaking with his neighbour for approximately 50 minutes at the garage area of his home. In the course of that conversation, the plaintiff was moving around and clearly engaging appropriately in conversation with the neighbour.
66The film was in contrast to the plaintiff’s evidence that he would avoid seeing people or having conversations or dealings with other persons. He has given histories to various medical practitioners that he lives as a recluse. While these observations of the plaintiff, as shown on the film, are only over six days in the period between November 2023 and 5 April 2024, they are an example of what I would describe as an exaggeration by the plaintiff as to the extent of his symptoms and the limitations on his life.
67In the authority of Church v Echuca Regional Health,[56] the Court of Appeal has given clear advice to courts at first instance to be careful when making use of surveillance DVD material to decide the accuracy or veracity of a plaintiff. Nevertheless, in this case, there was surveillance film shown of the plaintiff over the period November 2023 to April 2024, which showed the plaintiff was prepared to be more social and outgoing than he has described to the medical practitioners assessing him for the purposes of a psychiatric assessment.
[56](2008) 20 VR 566
68To a casual observer, the plaintiff was ordinarily and normally going about his business of either shopping at Coles or, alternatively, attending at the car dealership, as shown in the film. The plaintiff was seen to be actively engaging in conversation with his neighbour in front of his home and trading with the people at the supermarket or car dealership.
69After the plaintiff had been shown the DVD surveillance material and been cross-examined about it, the following occurred in the hearing.
Q:“Since leaving Hanson, what jobs have you applied for?---
A:None.
Q:Have you looked for any work at all?---
A:I’m not capable of doing it.
Q:And when this case resolves, would you be interested in looking for work?---
A:I’d have to see how I recover going into the future because at this stage I’ve maintained my fitness level, to a point. My mental health, again, I’m still very traumatised about what happened six months prior to the incident; the incident, moving forward this way. So I’m still heavily traumatised and, like I’ve stated on many occasions already, I do suffer post-traumatic stress disorder.
Q:What about your physical ailments?---
A:My physical elements [sic] have - - -
Q:Aliments, sorry?---
A:Pardon?
Q:Physical ailments?---
A:Which one are you referring to? Are you referring to my respiratory? Are you referring to my lower back and my bulging discs? Are you referring to my right knee? Are you referring to my hip? Or are you referring to my fused left ankle?
Q:Tell the court about all your physical ailments that you have?---
A:I’ve just told you exactly what they all are and there are restrictions in terms of lifting, pulling, for a number of - sitting for prolonged periods of time which, again, you would have noticed that I’ve been shuffling in this chair because I’ve suffered from yesterday and today, where I’m in extreme pain today.
Q:And the extreme physical pain that you have from your back, neck, shoulders, ankle, that contributes to your fatigue?---
A:A lot of issues contribute to my fatigue; mental - the mental side of it contributes to my fatigue. The physical side contributes to my fatigue. The breathing, the back, contributes to my fatigue. Where I would never fall asleep on the couch while trying to rest my back, my ankle, get my breath back, I would never fall asleep on the couch, where I do for 40-minute periods.
Q:And the combination of that fatigue would stop you from working. Is that what you say?---
A:I would agree so.
Q:You started seeing a new GP, Dr Mamun, in November last year?---
A:That’s correct.
Q:And he told you that you should try to return to work?---
A:He did say if I could or would be able to even do a school crossing, a few hours, trying to build up my confidence, my self-esteem, my mental state, he did recommend it. After further examinations and visits, he actually doesn’t recommend it as far as I’m aware of.”[57]
[57]T82, L19 – T84, L2
70The evidence just quoted raises the issue of exaggeration by the plaintiff given the nature of the DVD surveillance film material. It also sets out that the plaintiff has failed to disentangle his physical ailments and conditions from the mental or psychological and psychiatric symptoms, and consequences he complains about as a result of his employment with the defendant.
71The plaintiff, in his evidence, states that he would spend two days in bed because he was mentally unable to get out of it.[58] In his affidavit sworn 30 September 2022, the plaintiff stated that his mother and sister normally did his shopping for him as it was extremely difficult for him to do so. He went on to state that he only really spoke with his mother, his younger sister and one of his friends as a result of the work-related injuries.[59] There was no evidence by way of affidavit from the plaintiff’s mother or sister. The lack of corroborating evidence from the plaintiff’s mother and sister on this topic of being a recluse or being unable to get out of bed has led me to the conclusion that the plaintiff has failed to satisfy, on the balance of probabilities, that such a condition or consequence is applicable to him.
[58]T72
[59]PCB 14
The medical evidence in respect of the psychiatric injury
Dr David Louey, general practitioner
72There are two reports from Dr Louey dated 13 February 2015 and 5 February 2018. In the report of 13 February 2015, Dr Louey notes that the plaintiff is taking Avanza, and he is being treated by a psychologist, Anthony Stott. He noted that the treatment of the plaintiff began in September 2014. Dr Louey’s opinion at that time was that the plaintiff was unable to return to driving fuel tankers. He noted that the plaintiff’s prognosis was guarded.
73In his later report dated 5 February 2018, Dr Louey was giving an opinion of the plaintiff’s injury as a result of his work with Toll. He diagnosed the plaintiff as suffering with a right knee medial meniscal tear, a lower back injury, and anxiety and depression. Dr Louey noted that the anxiety and depression were pre-existing prior to the incident of 14 June 2017, but had been exacerbated since the accident.[60] At the time of writing the report, Dr Louey was of the opinion the plaintiff was unfit for all work duties. He noted that the unfitness was due to a combination of right knee injury, anxiety and depression, and his lower back injury.[61]
[60]PCB 28
[61]PCB 29
Dr Satish Singh, general practitioner
74Dr Satish Singh prepared reports dated 9 October 2020, 12 January 2021, 15 January 2021, 20 July 2021, 6 December 2021 and 14 August 2023. In Dr Satish Singh’s report dated 6 December 2021, he states that the plaintiff presently did not have a capacity for any form of employment. He noted that the plaintiff had a pre-existing condition for psychiatric injury. He then went on to say:
“… In my opinion his mental health condition is taking a chronic course, therefore, he will be unlikely to have a full capacity for pre injury duties in [the] next 3 to 6 months.”[62]
[62]PCB 57
75Dr Satish Singh’s opinion was that he was unable to predict a definite timeframe for the extent of the recovery by the plaintiff or whether it would be a partial or full recovery.
76In his final report, dated 14 August 2023, Dr Satish Singh stated that the plaintiff’s psychiatric condition had not changed since his earlier report of 2021 and that the plaintiff had good days and bad days. He noted that the plaintiff was having further anxiety and stress due to the delay in the finalisation of the work injury case.[63] Dr Satish Singh noted that the plaintiff was becoming forgetful and spent most of his time housebound, and refrains from having much outdoor activity.[64] I find that the basis of the plaintiff being housebound and not being able to engage in outdoor activity, such as walking the dogs and speaking with his neighbour, are not made out.
[63]PCB 58
[64]PCB 59
77For the sake of completeness, the plaintiff, in his final affidavit, stated that he had ceased consulting psychologist, Alyson Welch, and had been consulting a counsellor by the name of “Justine”. There were no reports from either Alyson Welch or a counsellor by the name of “Justine”, both of whom are relied on by the plaintiff as the frontline treaters of his psychiatric and psychological injuries.[65]
[65]PCB 139
Dr Ashraful Mamun, general practitioner
78Dr Mamun is the plaintiff’s current general practitioner and he has been treating the plaintiff since 2 November 2023. In his report dated 24 April 2024, Dr Mamun stated that he sees the plaintiff on a monthly basis. Dr Mamun noted that the plaintiff has longstanding mental health symptoms since 2014 from various stressors. The plaintiff had been diagnosed with Major Depression, anxiety and panic attacks, as well as an Adjustment Disorder. He noted the plaintiff is being treated by the psychiatrist, Dr Ashok Singh.[66] Dr Mamun also noted that the plaintiff was seeing a counsellor at IPC Health, which was in Hoppers Crossing.
[66]PCB 172
79Dr Mamun noted that the plaintiff is socially isolated and predominantly interacted with his mother and family members.[67] I note from Associate Professor Abdul Khalid’s report dated 8 January 2024, that Dr Mamun had refused to sign the paperwork for the plaintiff’s superannuation payment incapacity, stating that he, Dr Mamun, wanted the plaintiff to return to work in two years’ time.[68] In cross-examination, the plaintiff stated that he knew Dr Mamun wanted him to be back at work in two years, until such time that Dr Mamun had properly diagnosed him.[69] Dr Mamun states, in his report:
“Based on his history and clinical records with ongoing physical and mental health symptoms I feel he does not have a current capacity to work and may not work again in future. I am helping him to improve his ongoing mental health symptoms and learn to man[a]ge his physical symptoms better to improve his quality of life.”[70]
(sic)
[67]PCB 174
[68]PCB 166
[69]T86
[70]PCB 175
80Understandably, Dr Mamun has treated the plaintiff as a whole person, in the sense that he deals with the physical symptoms and the mental health symptoms in combination. There has been no separating out or disentangling of the mental health symptoms from the physical symptoms by the general practitioner.
Dr Ashok Singh, consultant psychiatrist
81Dr Ashok Singh has prepared reports dated 24 September 2018, 26 March 2021, 20 February 2022 and 28 August 2023. Dr Ashok Singh has been treating the plaintiff since 24 September 2018. This predates the time of the plaintiff’s employment with the defendant. Dr Ashok Singh sets out all of the symptoms relating to the plaintiff’s pre-existing psychological complaints.[71] Dr Ashok Singh’s assessment was that the plaintiff suffered from an Adjustment Disorder with Depression and Anxiety, chronic back pain and anger issues.
[71]PCB 39-40
82After the employment with the defendant, the plaintiff returned to Dr Ashok Singh in March 2021.[72] The plaintiff’s evidence was that he saw Dr Ashok Singh from 2018 onwards. Dr Ashok Singh noted that the plaintiff continued to experience pain, distress and anxiety with all of the symptoms he is experiencing. He noted that the plaintiff required assessment and follow-up with another psychiatrist and neurologist, and regular care with them for at least a twelve-month period before any final conclusion could be ascertained. Dr Ashok Singh went on to state he could not comment about the plaintiff’s prognosis, but noted the plaintiff said he had made no progress or improvement from his condition when he was last reviewed on 5 July 2023.
[72]PCB 41
83Dr Ashok Singh was unable to give any long-term restrictions for work, as he was unable to assess the plaintiff’s capacity for work.[73] Dr Ashok Singh stated as follows:
“… [The plaintiff] has issue with anxiety and depression and mood symptoms when he had seen me in 2018. According to him his symptoms had got worse after the incident at his work place in July 2020. According to him his conditions had got worse in [the] course of his employment. But as the history suggest that he already had pre-existing conditions, which had been aggravated due to work related stress and bullying.”[74]
(sic)
[73]PCB 43
[74]PCB 43-44
84There is no up-to-date report from Dr Ashok Singh. Dr Ashok Singh continues to treat the plaintiff. Dr Ashok Singh does not, in his reports, set out the level or degree of aggravation of the plaintiff’s pre-existing psychiatric/psychological consequences from his work-related injuries.
Dr Leon Turnbull, occupational and forensic psychiatrist
85Dr Turnbull provided a report dated 2 November 2021. Dr Turnbull stated that the plaintiff provided him with an account of psychiatric deterioration in the workplace with the defendant. In Dr Turnbull’s opinion, it was consistent with work-related worsening of a pre-existing psychiatric condition. He noted that it was not a new condition, but it is an exacerbation of, and increasingly looked like, an aggravation of a pre-existing depressive disorder. Dr Turnbull stated that the plaintiff should not be driving trucks. He noted that the plaintiff was not workshy, but was unable to say when the plaintiff would be able to return to the workplace. This report is dated and of limited assistance in an assessment to be made in May 2024.
Associate Professor Abdul Khalid, consultant psychiatrist
86Associate Professor Khalid prepared a report dated 22 September 2022. He assessed the plaintiff by video-conference. Associate Professor Khalid’s opinion was that the plaintiff had experienced an aggravation of his pre-existing Major Depressive Disorder with anxious distress following the termination of his employment on 16 July 2020 with the defendant.[75] Associate Professor Khalid’s prognosis was guarded, as the plaintiff had been receiving psychiatric and psychological treatment without improvement.[76] In the body of the report prepared by Associate Professor Khalid, he has not separated out the effect of the physical injuries and the psychological and psychiatric aspects of the complaints of fatigue made by the plaintiff. In forming his opinion, he accepted the plaintiff was suffering from panic attacks, disturbed sleep and social isolation, which essentially affected his ability to work. I do not find that the plaintiff is isolated, as described by him, and hence the conclusion drawn by Associate Professor Khalid about the plaintiff’s inability to work is not proven.
[75]PCB 79
[76]PCB 80
Dr John Gill, consultant in general and forensic psychiatry
87Dr Gill prepared two reports, dated 2 October 2020 and 21 March 2022. In his first report, Dr Gill was of the opinion that the plaintiff had experienced a psychiatric condition arising from the course of his employment, which was either a recurrence or an exacerbation of pre-existing anxiety and depression.[77]
[77]PCB 101
88In his second report, dated 21 March 2022, Dr Gill diagnosed the plaintiff as suffering from a Major Depressive Disorder. He stated that it was of a persistent and severe degree. He went on to state as follows:
“I do not consider that … [the plaintiff’s] condition has arisen solely out of or in the course of his employment with … [the defendant], but I consider that his employment has produced a significant aggravation of his pre-existing anxiety and depressive condition.”[78]
[78]PCB 114
89Dr Gill stated that the plaintiff did not have a current capacity for work.[79]
[79]PCB 116
90Dr Gill has clearly accepted every symptom that the plaintiff has detailed to him. Dr Gill has not had the advantage of seeing the plaintiff in the DVD surveillance film, and the answers given by the plaintiff in respect to those observations. Dr Gill did not address the direct question of whether the level of aggravation amounted to a severe psychiatric condition. He has accepted what the plaintiff said and then made the conclusion it was a Major Depressive Disorder with severe symptoms.
Dr Anthony Sheehan, consultant psychiatrist
91Dr Sheehan prepared a report dated 10 February 2023 in respect of this matter. In Dr Sheehan’s opinion, the plaintiff’s prognosis was guarded. Dr Sheehan noted the plaintiff had developed a chronic psychiatric condition with evidence of treatment resistance. Given the severity of his symptoms and the limited response to treatment, it is probable he will continue to experience moderately-severe symptoms in the long term and will remain incapacitated for employment most likely indefinitely. In his report, Dr Sheehan notes that the plaintiff’s psychological/psychiatric condition is an aggravation of his pre-existing Major Depressive Disorder with prominent anxiety symptoms.[80] His opinion does not go on to differentiate between the pre-existing condition and the current state for the plaintiff.
[80]PCB 128
Conclusion
92Based on the medical evidence in this case, I am not satisfied that the plaintiff has proven, on the balance of probabilities, that the aggravation of his pre-existing psychiatric/psychological condition of Major Depressive Disorder with anxiety features has reached the level of being severe. It is clear that the plaintiff does suffer from anxiety and depression, as diagnosed by the doctors, but the level of the aggravation attributable to the defendant is not established.
93The evidence in this case has failed to disentangle the psychiatric and psychological consequences arising from the alleged injuries at work from the physical injury referred to as the “respiratory injury” and the non-compensable injuries referred to in the course of evidence relating to the plaintiff’s back, neck, shoulder and ankle.
94I am not satisfied that the plaintiff will not, at sometime in the future, return to employment. The plaintiff has previously ceased employment on a number of occasions due to his psychiatric and psychological conditions, but has then been able to return to work. I am not satisfied that his ability to return to employment is permanent.
95The plaintiff’s application for a serious injury certificate in respect to the physical injury of respiratory injury arising out of or in the course of his employment with the defendant is dismissed. The plaintiff’s application for serious injury in respect of psychiatric/psychological consequences arising out of or in the course of his employment with the defendant is dismissed.
96I will hear the parties on costs.
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