Gavin Wood v Zaly Pty Ltd (Workcover)
[2015] VMC 6
•20 MARCH 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION D11682306
BETWEEN:
GAVIN WOOD Plaintiff
-and-
ZALY PTY LTD Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE OF DECSION: 20 MARCH 2015
CASE MAY BE CITED AS: WOOD v ZALY PTY LTD
APPEARANCES Counsel Solicitors
For the Plaintiff Mr O’Sullivan Maurice Blackburn Lawyers
For the Defendant Mr Dunstan IDP Lawyers
Catchwords: termination of weekly payments – claims for work injury – sexual harassment by co-worker– claim for injury exposure throughout course of employment – pre-existing mental condition – unreliable histories – burden of proof not discharged - claims dismissed
REASONS FOR DECISION
HIS HONOUR:
Introduction
The Plaintiff by Amended Statement of Claim dated 10 December 2013 seeks relief in the form of a declaration that he is entitled to compensation in respect of the first/and or second of two claims made by him for entitlement by way of weekly payments for no current work capacity under the Accident Compensation Act 1985 (the Act).
The First Claim is described in the pleading (at paragraph 4) as one of ‘injury’ (more particularly as described as the ‘sexual harassment injury’) that arose out of or in the course of the Plaintiff’s employment. It is particularised as follows:
(a).The Plaintiff is 59 years of age, having been born on 4 May 1954
(b).The Plaintiff was employed by Zaly for approximately two years picking up deceased people and transporting them
(c).Throughout the course of the Plaintiff’s employment with Zaly Pty Ltd the general nature and physical and mental stress and strain of the Plaintiff’s employment, and sexual harassment by a co-worker caused the production, aggravation, acceleration and/or recurrence of the Plaintiff’s sexual harassment injury
Following on the above pleaded particulars there is provided “Particulars of Injury” as follows:
Major Depressive Disorder
Stress, Anxiety and depression
By claim document dated 20 February 2012[1] the Plaintiff identified an injury described as ‘Anxiety and Depression’ the occurrence of which was recorded as ‘Suffered sexual harassment causing severe anxiety and depressive embarrassment’ and also that the injury occurred ‘throughout the course of employment’ and the date at which the condition was first noticed by the Plaintiff was noted as 16 October 2011. The claim sought payment of compensation in the guise of weekly payments of compensation and medical and like expenses. The claim was accepted by the Defendant and the Plaintiff was paid such benefits, however, on 31 August 2012, the Defendant gave the Plaintiff notice of intention to terminate payments with effect from 17 September 2011.
[1] Ex P1
The Plaintiff relies furthermore, or alternatively, on a Second Claim dated 10 September 2013[2] in which he asserts that he suffered injury arising out of or in the course of the his employment with the Defendant. This is characterised in the amended pleading as ‘the exposure injury’, the particulars of which are as follows:
[2] Ex P2
Throughout the course of the Plaintiff’s employment with Zaly Pty Ltd the general nature and physical and mental stress and strain of the Plaintiff’s employment, and experience to traumatic and distressing events, caused the production, aggravation, acceleration and/or recurrence of the Plaintiff’s exposure injury.
Particulars of Injury
Major Depressive Disorder
Stress, Anxiety and Depression
The Second Claim, like the first, asserts that the Plaintiff’s injury occurred throughout the course of his employment but was first noticed on 16 October 2011.
The Second Claim was rejected by the Defendant by notice dated 4 December 2013.
The defence relied upon is twofold and is expressed in the Amended Notice of Defence as follows:
(i)that if the Plaintiff is incapacitated for employment then the incapacity is spent and thus is no longer continuing;
(ii)in addition if the Plaintiff is incapacitated for employment then any incapacity is not materially contributed to by an injury that entitles the Plaintiff to compensation for the purposes of the Act.
The Plaintiff’s claim for injury arising out of or in the course of his employment was accepted. Although the Plaintiff’s entitlement to weekly payments has been terminated, the Defendant has continued at all relevant times to pay for his reasonable medical and like expenses. This situation was still prevailing at the date of the hearing. The Plaintiff’s counsel submitted that this conduct was tantamount to an admission of liability. I do not accept this submission. There are obligations under the Act in relation to the payment of medical and like expenses and payment of the same for injury but this does not inform or determine the question before me whether employment occasioned injury and if work continues to account for any incapacity of the Plaintiff under the Act. In any event I am not bound by the decisions made in the administration of a claim for benefits in an application such as this in which a Plaintiff seeks reinstatement of benefits.
The Plaintiff does not work and he remains under medical and psychiatric care and is still prescribed Lexipro. The Plaintiff said that he remains under the care and supervision of Dr Kumar, Psychiatrist whom he sees approximately each 4 weeks and he also attends on his General Practitioner Dr Cheah as required. He is visited on a weekly basis by a mental health care nurse.
I am required to determine two substantial matters in this proceeding. The first matter calls for a decision as to whether the Plaintiff suffered a psychological injury as a result of conduct directed at him by a work colleague and the second matter to decide is whether the Plaintiff was exposed throughout the course of his employment with the Defendant to conditions that occasioned him injury also of a psychological nature. In either of, or both instances, if I am satisfied by the Plaintiff’s evidence of work injury, then it is necessary to determine the extent of incapacity and its probable duration.
The Plaintiff and his pre employment background
The Plaintiff is a 60 year old man. He is a largely self made having undertaken a printing apprenticeship as a young man in a trade and he has also been engaged in various employment endeavours in Victoria and in Queensland including running a Tattersall’s agency and a metal fabrication business.
Some years ago the Plaintiff’s partner fell ill and he devoted himself to her as carer. She subsequently died. The clinical notes of Dr Cheah reveal that the Plaintiff was diagnosed with depression in 2009 and on 6 October 2009 he was placed on a Mental Health Plan by Dr Cheah. The Plaintiff was prescribed Pristiq, an antidepressant medication. On 6 October 2009 he returned for psychiatric care in accordance with the Mental Health Plan. This all transpired prior to the Plaintiff commencing employment with the Defendant.
An overview of the medicine and diagnoses
Dr Kumar, the Plaintiff’s treating Psychiatrist in a report dated 8 October 2012 made a diagnosis of ‘Major Depressive Disorder’ with a poor prognosis. He noted that despite the Plaintiff having expressed a feeling that he was ‘harassed by this woman’, he ‘wants to go back to work for his employer again because he believes he was good at what he did’. Dr Kumar noted the Plaintiff exhibited ‘narcissistic personality traits’. In other reports dated 12 June 2012, Dr Kumar had expressed the view that the Plaintiff was not capable of working for at least a year. By the time of his report dated 5 March 2012, Dr Kumar’s opinion was that the Plaintiff was unlikely to be capable of working in the foreseeable future. Dr Kumar says that there is a significant connection with the Plaintiff’s employment and that he has no capacity for employment.
Dr Cheah’s opinion is similar to that of Dr Kumar both in terms of diagnosis and effect. In a report dated 17 July 2013 Dr Cheah referred to an impression he had gained of the Plaintiff as a man who was suffering from ‘bipolar disorder’. He did not feel confident to make a definite diagnosis.
Dr Kornan, Psychiatrist in a report dated 12 February 2014 relies on a diagnosis of a major depressive disorder and in addition noted an ‘Adjustment Disorder’ with ‘anxiety and indications of an unusual personality’. His opinion is that the Plaintiff is unlikely to be fit for employment in the foreseeable future and that his prognosis is poor. Dr Kornan is also of the opinion that the Plaintiff’s employment is a significant contributing factor to his psychiatric condition.
Dr Dharwadkar, Consultant Psychiatrist in a report dated 15 March 2012 to the Defendant’s lawyers, made a diagnosis of ‘Major Depressive Disorder’. However, in a subsequent report dated 9 August 2012, Dr Dharwadkar amended his diagnosis to one of ‘Bipolar 2 Disorder’ and not any longer attributed to the Plaintiff’s employment.
Dr Douglas, Psychiatrist in a report dated 8 July 2014 for the Defendant diagnosed the Plaintiff with ‘Major Depressive Disorder (DSM – IV – 296.22)’ with a poor prognosis and expressed the opinion that the Plaintiff would continue to require psychiatric care. He is of the view that the Plaintiff’s employment was a significant contributing factor and that he has no current work capacity.
Ms Leah Goldman, Psychologist in a report dated 30 November 2011 diagnosed the Plaintiff as suffering from ‘borderline clinical depression’.
Capacity
Capacity was not challenged in any significant way by the Defendant either in cross-examination of the Plaintiff, or of his treating doctors who gave evidence, and I am satisfied on the balance of probabilities that the Plaintiff is currently incapacitated for employment. Indeed, the opinions relied on by both parties, substantially attest to this fact. The Plaintiff's presentation in Court was consistent with the medical opinions regarding work capacity. I am satisfied that the Plaintiff has no work capacity and that this is likely to last indefinitely.
Prior evidence of depression
As I have already made mention, the Plaintiff presented with depression in about the middle of 2009. Its presentation is described by Dr Kornan in his report dated 18 September 2014 in these terms:
‘In my opinion, it was likely that Mr Wood presented with a history of some pre-existing depression, but that he was destabilised by matters relating to his employment, when he felt he was exposed to a work environment involving bullying and harassment, from a fellow employee’.
Neither the Plaintiff’s claims nor his evidence gave rise to any allegation of workplace bullying. This contention that it did and the conclusion predicated on a questionable history is an ongoing theme of this case.
The evidence is that the Plaintiff did not work during the period 27 August 2009 to 16 March 2010.
Prior to commencing work with the Defendant, there was some evidence that the Plaintiff undertook work at the coroner’s office and was engaged in similar work to that undertaken with the Defendant. However, the attempts to specify the precise dates that the Plaintiff was employed in relation to coronial work proved elusive in the hearing, but the Plaintiff did say that such work was ‘a long time before commencing’ with the Defendant.
The Plaintiff Commences Employment
The Plaintiff commenced employment with the Defendant on 10 July 2010 as a mortuary transfer officer. The Defendant is better known by its trading name, Alison Monkhouse Funeral Directors. The Defendant held a contract with the Coroner’s Court to attend at various locations and collect and transfer deceased persons to the morgue. For a person such as the Plaintiff, with a record of previous depression and apparent vulnerabilities and peculiar personality traits, it seems odd that he took up employment with the Defendant involving work of such a nature.
In mid 2011 the Plaintiff was off work with the Defendant for 3 months apparently as a result of losing his driver’s licence. There is nothing to indicate the absence had anything to do with his work duties.
The Plaintiff was made redundant on 30 September 2011 but was then reemployed as a casual employee on 1 October 2011, finally concluding his employment with the Defendant on 22 October 2010. Therefore, the Plaintiff’s employment with the Defendant was approximately of 15 months duration, of which he was not working for about three months due to the loss of licence.
Following the conclusion of his employment with the Defendant the Plaintiff saw Dr Cheah on 28 October 2011 after which his First Claim was made and accepted by the Defendant with weekly payments and medical and like expenses backdated to 22 October 2011.
The Plaintiff testifies
It was apparent to me almost immediately that the Plaintiff commenced to give his evidence that he was labouring from significant behavioural effects and that this was manifested in aberrant conduct. At times the Plaintiff swivelled in his chair such as to be almost with his back to his examiner and the court; his face was at times grimaced as if in severe pain or agitation and his answers were frequently long expressions of disjointed thoughts that were non-responsive to questions put, and on other occasions his answers were expressed loudly and aggressively to his interlocutor.
The Plaintiff appears to lead a secluded and solitary existence. He says that he tires easily and counters this by taking to his bed at all times of the day. He seldom goes out. He has a son and a daughter in their late 20’s. He said that his son tries to coax him out on a Sunday but this has proved difficult because as he put it, when he is in public, ‘I have a capacity to offend people’. It might be said that the Plaintiff lacks a filter and this was evident in the course of his evidence before me when he said, ‘I don’t like fat people around me in particular fat women’. The Plaintiff said, ‘I don’t have friends any more’.
The Plaintiff’s Duties of Employment
The Plaintiff testified about the duties he was called upon to perform in his employment as a mortuary transfer officer. He said his work involved metropolitan and country body collections. The Plaintiff’s evidence in answer to questions asked of him was on occasions decidedly morbid and explicit and indicative of effort on his part whether consciously or not to shock. The descriptions he gave of his activities were also in some instances, suggestive of exaggeration, including descriptions of him possessing extraordinary human strength and lifting the remains of an obese woman and placing her on a stretcher for transportation to the morgue. The Plaintiff expressed himself and his capabilities in carrying out his job in grandiose terms. This type of ‘heroic’ conduct offered up by the Plaintiff might be explained by narcissistic tendencies, a trait recognised in the Plaintiff by Dr Kumar. The Plaintiff said that on some days he had been called on to collect up to 16 bodies ‘in all forms of decomposition’.
I am satisfied that parts of the Plaintiff’s evidence in relation to his work bore exaggeration and was not supported by reliable fact. For example, I reject the unsupported contention made by the Plaintiff that on occasion he was called upon to collect 16 bodies and that he was forced by his employer to work double shifts or that he lifted bodies of such weight as he claimed. Nonetheless, I am also mindful that the ‘heightened’ assertions made by the Plaintiff in his evidence are possibly indicative of an ongoing psychiatric or psychological malady that besets him. However, the question is what role, if any, did the employment play in the Plaintiff’s condition?
The Plaintiff said that over the course of his employment with the Defendant he had a number of co-workers but the nature of the job was such as to cause a ‘good number of them to not go through’. He added in his evidence that, ‘I am very hard to work with’.
The Plaintiff worked a part of the period of his employment with a female co-worker Ms Cerda-Pavia. There appears nothing unusual about this because on the basis of a report from Mr Douglas to the Defendant’s solicitors dated 8 July 2014, the Plaintiff reported that ‘most of the partners with whom he worked were women’.
The Plaintiff alleges that Ms Cerda-Pavia made sexual overtures to him and that he regarded them as unwelcome and that he complained about her conduct to his employer but that its response was insufficient.
The Plaintiff was cross-examined and counsel for the Defendant probed him about the nature and extent of the work he performed for the Defendant including, in particular, the extent of time he worked with Ms Cerda-Pavia. In the Worker’s Injury Claim form[3] the Plaintiff identified “Anxiety and Depression” and recorded that he “SUFFERED SEXUAL HARASSMENT CAUSING SEVERE ANXIETY AND DEPRESSIVE EMBARASSMENT” The date injury occurred is recorded as 16 October 2011.
[3] Ex P1
The Plaintiff accepted that he worked with Ms Cerda-Pavia for “less than a few weeks”. He elsewhere in answer to cross-examination that, ‘Actually, I think I only worked with her for 2 or 3 nights’.
Ms Goldman saw the Plaintiff on 12 sessions of 1 hour’s duration each commencing on 13 February 2011 and concluding on 16 May 2012.To the extent Ms Goldman’s written report suggests that the Plaintiff had endured harassment over a course of 12 months, I reject that conclusion as inaccurate. On no construction of the evidence did the conduct in relation to the co-worker command such a span of time.
The Plaintiff became defensive and upset when it was suggested to him in cross-examination that he had in fact socialised with Ms Cerda-Pavia, spent a night at her residence and acted towards her in a manner consistent with a relationship of some intimacy. The Plaintiff said that he ‘cannot help what she thinks’.
The Plaintiff said that after he complained to management about Ms Cerda-Pavia, he was rostered to work with her and he found it necessary to refuse to do so. However, at another point in his evidence, the Plaintiff said that he was not required to continue to work with her. The Plaintiff said that he complained about the matter to management who ‘kept putting me back with her’. He said it proved necessary for him to consult his union for him to obtain a resolution.
The Defendant adduced oral evidence from Warren Tyers the Operations Manager and company director of the Defendant. He described the Plaintiff’s job title as transfer crew member. He said that the Defendant held a contract with the coroners’ court. He recalled that at some point the Plaintiff made a complaint and requested to not work with a particular female co-worker. He said that he was made aware of this in a very general way by the Plaintiff's supervisor, Julie Vesco. He said the request was complied with. Although there was some effort in cross-examination to implicate the company in allowing the Plaintiff to work excessive hours unchecked, the allegation was not substantiated by the evidence.
An additional allegation made in the case is that the Defendant failed to respond in a timely manner and exposed the Plaintiff to continuing to work with Ms Cerda-Pavia despite his complaint. It is a comment made, and a cause attributed to the Plaintiff’s injury, that is repeated in much of the Plaintiff’s medical reports but I am satisfied that there is no merit to it. I am satisfied that the Defendant did not require the Plaintiff to work with Ms Cerda-Pavia after it became meaningfully aware of the existence of his discomfiture. I am satisfied that the initial complaint brought to the attention of management by the Plaintiff was vague and non-specific and that no valid criticism can be levelled at the Defendant for a lack of immediate response. I am satisfied that as soon as the union became involved the matter was better particularised on behalf of the Plaintiff as one sexual harassment and was then resolved. Despite being subpoenaed by the Defendant, Ms Vesco was not called. It was submitted by counsel for the Plaintiff that it would be appropriate for me to draw an adverse inference in accordance with the principles in Jones v Dunkel[4]. No such inference is warranted in this case.
The co worker conduct
[4] (1959) 101 CLR 298
There are variations in the accounts given by the Plaintiff of Ms Cerda-Pavia’s conduct. Ms Cerda-Pavia was called by the Defendant. She testified. She was cross-examined. Ms Cerda-Pavia said that there was nothing on the part of the Plaintiff’s by way of conduct or behaviour directed to her that alerted her in any way to a concern that her communications with him were otherwise than consensual or were unwelcome.
An account provided in a report prepared by Dr Kumar included the Plaintiff recounting an offer by Ms Cerda-Pavia to perform fellatio on him while in a car and offering to have sex with him for a dollar.
Dr Goldman’s report dated 30 November 2013 gave an account of the Plaintiff’s complaint about Ms Cerda-Pavia sexual conduct in these terms:
When Mr Wood initially attended therapy he reported that he had ceased working for Zaly P/L for about one month because he felt uncomfortable with his female co-worker who was 30 years old at the time.
He said the female co-worker would continuously talk about her sex life and she had said she had masturbated in the bath before coming into work and she then asked him to hold her hand and then asked Gavin if she could fondle his penis.
He said the female co-worker also texted him incessantly and he said that he felt helpless. Gavin also reported that the female co-worker rang Gavin’s son to ask him if Gavin still loved his ex-wife. He said his co-ordinator described this woman a “sexual predator” yet did not stop it happening by continuing to send the co-worker on Gavin’s rounds.
Gavin also reported that the co-worker had falsely alleged in a letter that she had a sexual relationship with Gavin. She had written the letter after Gavin had reported what was happening.
Dr Douglas in a report dated 8 July 2014 noted on examination and from a history taken from the Plaintiff that:
He said most of the partners with whom he worked were women. He said one woman with whom he worked said things to him of a sexual nature. He said he could not remember precisely what they were, but said he had a record of them at his house. He said he became upset with her. He said he was distressed by her explicit sexual references.
…
He said he was distressed by the relationship with the woman partner who made sexual references. He said he could not remember her name.
Very little detail was forthcoming from the Plaintiff in his viva voce evidence about the sexual advances made by his co-worker. Such detail as there was did not match the detailed accounts provided by the Plaintiff to his treaters or those to whom he was sent for referral. The extent of the cross-examination of Ms Cerda-Pavia was tangential and I am not in a position to make any specific findings of fact about the accounts that the Plaintiff gave to those practitioners whom he saw for medical and psychological assistance after he ceased employment with the Defendant. No text messages were produced. Ms Cerda-Pavia’s said that they were no longer retained by her. The Plaintiff also was unable to produce any text messages. It is of course the Plaintiff who carries the primary burden of proving the necessary elements of the claim including satisfying me of the occurrence of conduct that resulted in injury.
I am satisfied that the accounts of the Plaintiff to those of his treaters on whom he attended about the length of time he was the subject of unwelcome conduct by Ms Cerda-Pavia was incorrect. Dr Kumar has reported that the Plaintiff had been sexually harassed by Ms Cerda-Pavia over a period of many months. I am satisfied that account is wrong. Under cross-examination Ms Cerda-Pavia said that she thought it was the case that she worked with the Plaintiff ‘on one or two occasions up to 36 hours’ and ‘up to 7 consecutive days’ and that she said that she might have worked as ‘a pair’ with the Plaintiff on ‘up to a half dozen occasions’.
Dr Kornan wrote in his report dated 12 February 2014 that:
In my opinion, employment was the precipitating factor in his psychiatric ill health condition, due to the sexual harassment from a fellow co-worker, and the fact that he felt his employer did not take steps to prevent him having to work with that particular employee[5].
[5] Underlining is my emphasis
As is apparent already from my findings, I am not satisfied of and do not accept, that part of the opinion expressed by Dr Kornan that the Plaintiff’s employment was a precipitating factor because of the failure by the Defendant to take steps to prevent the Plaintiff having to work with Ms Cerda-Pavia. It does not account with my findings as regards the Defendant’s response to the Plaintiff’s expressed discomfort.
In approaching not only the evidence of opinion of Dr Kornan but in fact all the evidence relied on by the Plaintiff, I have kept certain precepts in mind. The ‘egg shell’ psyche approach to the Plaintiff’s presentation means of course that the Defendant must take the Plaintiff as it finds him. In addition, in a case such as this it may prove necessary to undertake a consideration and evaluation of the evidence to consider whether, for example, there existed some misconception by the Plaintiff of some relevant act or circumstance in his dealings with Ms Cerda-Pavia .There must I think be something in the evidence, some anchor in the facts against which I can assess the Plaintiff’s reaction to the allegedly impugned conduct whether misconstrued by him or not to determine its capacity to amount to a stressor. Obvious examples of a factual ‘anchor’ in a given case might comprise evidence of offending texts, a record or complaint in some form or another whether written or spoken and made contemporaneously by the Plaintiff to a third person; perhaps a note taken by way of history from a treating practitioner. Of course it might also be the case that because of the very nature of a Plaintiff or the type of conduct adverted to by him or her that a record of conduct is elusive and therefore it may prove necessary to have greater regard to inferential matters such as the demeanour of witnesses in their telling of the accounts by way of evidence. None of the foregoing is intended to be exhaustive of a particular course required to be taken in every situation but in such a case as this where the type of examination discussed in St Mary’s School v Jennifer Askwith [2011] VSCA 90 exists, it may prove useful and informative.
Despite some shortcomings in the extent of detail or corroboration of the offending conduct in the hearing but having regard to the evidence of Ms Cerda-Pavia including certain admissions by her, I am however satisfied and find on the balance of probabilities, that Ms Cerda-Pavia sent the Plaintiff a number of text messages in about October 2011. I am also satisfied on the balance of probabilities by the evidence of Ms Cerda-Pavia, that at the very least these messages were of a nature that sought an explanation from the Plaintiff why, so far as she was concerned, their relationship had changed and why it was that the Plaintiff was not responding to her messages and, furthermore, why as she put it, the Plaintiff was treating her like a "leper". I am also satisfied that the Plaintiff regarded the overtures by Ms Cerda-Pavia as unwelcome. Ms Cerda-Pavia agreed that she had made contact with the Plaintiff's son because, as she said, she was bewildered by the sudden change in attitude by the Plaintiff towards her and of him having closed off all communication with her. Ms Cerda-Pavia acknowledged that some of her communications with the Plaintiff were sexual in content but, according to her, this was consistent with their relationship which, whilst never consummated, was intimate. I am also satisfied that the Plaintiff due to the vulnerability of his pre existing mental state found these overtures disturbing and that they made him feel uncomfortable and caused him some upset and confused him .I find the that the Plaintiff complained to his employer about Ms Cerda-Pavia and he involved his union. I find also that Ms Cerda-Pavia had made known to her by management that her ongoing electronic communications with the Plaintiff was leaving him feeling uncomfortable.
Accordingly, and by reason of these findings, it follows that I am also satisfied that the Plaintiff’s account of the work conduct is sufficient to amount to a stressor and may be relied on by him because the extent of his perception of the events comprising the conduct Ms Cerda-Pavia has a real connection with events that occurred arising out of the employment, as distinct from an event that has been imagined as connected with his employment: State Transit Authority of New South Wales v Chemler [2007] NSWCA 249.
A word about ‘sexual harassment’
Counsel for the Plaintiff Mr O’Sullivan submitted that the Plaintiff need not make out a claim of ‘sexual harassment’ or establish that his employer's response to his complaints about his co-worker was unreasonable. Counsel for the Plaintiff submitted that ‘sexual harassment’ was not a term the Plaintiff had ever attributed to the conduct he complains about. That not correct because Ex P1 signed by the Plaintiff describes himself as having been subjected to “sexual harassment”. Furthermore, it is a turn of phrase adopted by certain of the Plaintiff’s own doctors to describe the nature of complaint made to them about Ms Cerda-Pavia. As I have already mentioned, in a case such as this, what is required is some assessment of the consequences of and effect on the Plaintiff of the conduct of his co-worker, or the Plaintiff’s reasonable perception of his co-worker’s conduct, and not whether any conduct by Ms Cerda-Pavia amounts in law to sexual harassment or whether any conduct by Ms Cerda-Pavia may have reasonably regarded by her as not amounting to sexual harassment. Some or all of that might have relevance and be probative in another place under a different legal construct. It is not what I am concerned with in determining a claim for reinstatement of statutory benefits under the Act. To this extent then, I agree with the submissions of Mr O’Sullivan.
The matter was well expressed by Cavanaugh J in Clarke v National Mutual Life Insurance Ltd & Ors [2013] VSC 536 at [56] whereat his Honour said:
‘For a mental injury to "arise out of or in the course of any employment", it may be necessary that there be "real", as distinct from "imagined", events or circumstances at work which contribute to the worker's injury. However, as was held by the New South Wales Court of Appeal in State Transit Authority of New South Wales v Chemler, the "egg shell psyche" principle may apply. Hence a misperception by the worker of the relevant events or circumstances will not necessarily disqualify him or her. In St Mary’s School v Askwith, a decision of the Victorian Court of Appeal, these principles, which were common ground between the parties, were accepted as being correct and as being applicable to the facts of that case. They were again accepted by the New South Wales Court of Appeal in Commissioner of Police v Dalziel. As Basten JA said in State Transit Authority of New South Wales v Chemler, in contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor.
Even if the Plaintiff's claim in the County Court could be characterised as a "stress claim" for the purposes of s 82(2A) of the Accident Compensation Act 1985, nevertheless the relevant Defendants have not suggested that the defence of reasonable employer action provided for in that section stands in the way of the grant of the relief sought by the Plaintiff in the proceedings before this Court.’
Did the Plaintiff suffer injury as a result of this stressor?
Whilst I am satisfied that the Plaintiff suffered upset and distress and confusion by Ms Cerda-Pavia’s conduct, I am not satisfied that the work related stressor caused the Plaintiff injury, but if I am wrong in relation to this finding, then I am satisfied that such injury had resolved by the date that the weekly payments were terminated and that the ongoing incapacity of the Plaintiff on the balance of probabilities is due to his pre-existing depression and that his employment with the Defendant occasioned by the conduct of the co-worker is no longer an operative factor to his condition.
The Second Claim – Work Exposure
The nature of the Plaintiff’s work
I have already acknowledged the submission that the Defendant takes the Plaintiff as it finds him and therefore it is not to the point that work influences such as those to which the Plaintiff was exposed in the day to day discharge of his duties might have had no effect on a person who did not suffer from the pre-employment and pre-existing conditions or vulnerabilities such as those of the Plaintiff[6].
[6] Askwith at [12]
In determining if the work exposed the Plaintiff to injury, I note that despite the Plaintiff’s claim for injury including stress occasioned by his employment, he told Dr Cheah that he loved his job. Furthermore, in cross-examination he said; ‘Yes I could cope with the job’; ‘Yes I liked my job…but it has taken its toll on me’.
Unreliable histories - ‘No prior psychological episodes’
The general nature of the Plaintiff's employment involved regular dealings with bodies in varying states of decomposition and various causes of deaths. Mr Tyers agreed with counsel for the Plaintiff that a lot of the work the Plaintiff undertook was "pretty horrible". However once again, a significant difficulty that the Plaintiff has encountered in satisfying me that he has discharged his burden of proof, is the extent of the unreliable histories afforded both to those who treated him and the reports of history given by him to those practitioners to whom he has been sent for medico-legal examination.
The Plaintiff came under the care of Dr Kumar on 3 August 2012. Dr Kumar has reported that the Plaintiff had not suffered any previous depressive episodes. This is not accurate because in fact the Plaintiff had seen Ms Goldman in February 2011. Ms Goldman was also not provided with an accurate history because she also reported that the Plaintiff had not reported any previous psychological difficulties.
Dr Kumar’s diagnosis is of a Major Depressive Disorder and he disagreed with the Bipolar disorder diagnosis. He said that he had not observed any traits consistent with that disorder. He remained of this opinion of diagnosis in cross-examination, despite having been unaware that the Plaintiff had previously been prescribed Zyprxa, a medication often associated with the condition of Bipolar.
The Plaintiff was challenged about the lack of accuracy of a statement he made to Dr Kornan that prior to October 2011 he had not been prescribed any psychotropic medicines. The Plaintiff could not explain it.
Dr Douglas was also furnished with an inaccurate history by the Plaintiff as evidenced by his report that included this:
He said he had not been treated for any psychiatric illness in the past.
The Plaintiff agreed that he has been a cannabis user and had misused cannabis to the extent that in December 2009 he underwent a voluntary admission at Windana of some 10 days duration to deal with his misuse of it.
Dr Cheah testified and was cross-examined. His handwritten clinical records were produced. Otherwise than verifying the occurrence of certain events by reference to specific dates Dr Cheah’s evidence was not probative of the Plaintiff’s condition because there had been no attendances on him by the Plaintiff during the Plaintiff’s period of employment with the Defendant.
In meeting the Plaintiff’s claim that he suffered injury because of his exposure to the nature of the work he undertook with the Defendant, Mr Dunstan pointed to the absence of any attendance by the Plaintiff on Dr Cheah between July 2010 and October 2011. Dr Cheah accepted under cross-examination, that it was reasonable to conclude that this was because the Plaintiff had no reason to see him. I regard this lack presentation by the Plaintiff as a significant evidentiary hurdle in the way of making good the claim of work exposure occasioning injury.
The Defendant further pointed out that it was not until 26 September 2013 that Dr Cheah made a record about the Plaintiff’s working environment in terms that expressed the Plaintiff having not enjoyed working as a mortuary transfer officer with the Defendant.
Mr Dunstan in addition placed considerable emphasis on the unreliability of the medical evidence seeking the attribution of injury to employment. In Paric v John Holland Constructions Pty Ltd[7] a decision of the New South Wales Court of Appeal, Samuels JA at 509 and 510 spoke of the consequences that follow from the absence of a factual premise upon which expert opinions are based or, where the basis of assumptions are not disclosed thus creating an ‘unfair climate’. There is much force in this submission. Likewise when the factual premise is non-existent or is otherwise as an expert is led to believe, the foundations of opinions are questionable.
[7] [1984] 2 NSWLR 505
In answer to these deficiencies identified by the Defendant, Mr O’Sullivan submitted that the complaints made by the Plaintiff to doctors since October 2011 have been consistent and that no other stressor can be pointed to as causing his current condition save for the diagnosis put advanced by Dr Dharwadkar of Bipolar Disorder and more latterly by him, the management of the Plaintiff’s workers’ compensation claim under the Act. The problem I have with attributing much weight to this submission by counsel is that it really invites a consideration of the matter otherwise than in accordance with the primary burden of proof that falls to the Plaintiff. In other words, a contention that no other stressor existed, is not the same as a finding that the Plaintiff has discharged his burden of proof in establishing that the work duties and or the co-worker’s conduct caused injury. It does not fall to the Defendant to positively satisfy the Court that the Plaintiff’s condition was not caused by work. Therefore I am not persuaded by this submission on behalf of the Plaintiff.
It was further submitted on behalf of the Plaintiff that the entirety of the medical evidence supports an ongoing role of the Plaintiff's employment in his current condition. Of the expert opinions before the court only Dr Dharwadkar describes the role played by the Plaintiff’s employment as minimal. This submission is true but there are limits to its utility. The benefit that can be derived by the Plaintiff from the uniformity of opinion is very much dependent on the truthfulness of historical account given by the Plaintiff to the doctors, and in this respect, the conclusions are predicated on a chronology of occurrences that is at times incorrect or unreliable.
On the balance of medical opinion I am satisfied that the preferred diagnosis of the Plaintiff is that he suffers from a Major Depressive Disorder. Dr Dharwadkar diagnosed Bipolar disorder in 2012. Dr Kumar, whom the Plaintiff has consulted regularly since August 2012, does not regard the Plaintiff as presenting with the symptoms of Bipolar disorder. I am not satisfied that the array of opinions support a diagnosis of Bipolar disorder, however, I am also not satisfied that the nomenclature attributed to the Plaintiff’s condition is critical because in any event I am satisfied by the evidence that the Plaintiff suffers a mental disorder and has done so since at least 2009. I am also satisfied on the balance of probabilities that the Plaintiff’s work with the Defendant did not have the requisite causal connection with the Plaintiff’s incapacity. Whilst I am satisfied that the work was on occasions upsetting and peculiar work for a man such as the Plaintiff but that is insufficient. I note that the Plaintiff was often at pains to refer to how fulfilling the work he performed was in bringing dignity and respect to the deceased.
Therefore, in accordance with the reasons stated, the Plaintiff’s applications for reinstatement of weekly payments are dismissed. I will grant leave to the parties to file a minute of order to dispose of the proceeding and reserve general liberty to apply.
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