Gloger v Victorian WorkCover Authority
[2024] VCC 27
•26 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02217
| MICHAEL HAL GLOGER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 November 2023 | |
DATE OF JUDGMENT: | 26 February 2024 | |
CASE MAY BE CITED AS: | Gloger v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 27 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation of psychiatric injury – post-traumatic stress disorder – pain and suffering – pecuniary loss – whether employment caused plaintiff’s loss of earning capacity
Legislation Cited: Accident Compensation Act, s134AB
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454
Advanced Wire and Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
De Bono v Victorian WorkCover Authority [2019] VSCA 85
Carroll v Victorian WorkCover Authority [2022] VCC 764
Guppy v Victorian WorkCover Authority [2010] VSCA 164
Humphries v Poljak [1992] 2 VR 129
Mobilio v Balliotis [1998] 3 VR 833
Petrovic v Victorian Workcover Authority [2018] VSCA 243
Transport Accident Commission v Katanas (2017) 262 CLR 550
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms A Smietanka | Arnold Thomas & Becker |
| For the Defendant | Mr R H Stanley SC with Ms N Hosikian | MinterEllison |
HER HONOUR:
1In October 2013, Mr Gloger commenced employment with G4S Australia Pty Ltd as a Security Services Officer at the Manus Island Facility (“the employment”). He had previously served as a member of the Australian Defence Force (“ADF”) until 2013. Following a peacekeeping mission in East Timor in 2006, he developed Post-Traumatic Stress Disorder (“PTSD”).
2Mr Gloger seeks leave to bring common law proceedings against the defendant pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for pain and suffering and pecuniary loss damages. The injury he claims is aggravation of his PTSD caused by the employment.
Issues
3The issues in this case are:
(a) Whether Mr Gloger has an aggravation of his psychiatric injury that:
(i)was caused by the employment; and
(ii)is an aggravation that, in comparison with other cases, can be fairly described as at least very considerable and certainly more than significant or marked;[1]
[1]Humphries v Poljak [1992] 2 VR 129; section 134AB(38)(c)(d) of the Act
(b) If so, whether Mr Gloger sustained a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more when comparing his “with injury” and “without injury” earning capacity and which represents a severe consequence for Mr Gloger.[2]
[2]Section 134AB(38)(e) of the Act
4For the reasons that follow, I am satisfied that Mr Gloger has suffered a serious injury. He has leave to commence proceedings for pain and suffering and pecuniary loss damages.
Background
5Mr Gloger was on duty at the Manus Island Facility on 16 February 2014 when detainees began rioting. Mr Gloger was told to secure the Mike compound and to evacuate staff. He says he was knocked to the ground and kicked and stomped on by rioters. He heard shooting as the police arrived, and recalls a bullet hitting a steel box near him. He says he was caught in crossfire and tear gas.
6Mr Gloger witnessed violence, including the bashing of a detainee who subsequently died. Mr Gloger carried people with machete wounds to safety. On that day, Mr Gloger worked a 24-hour shift and finished early in the morning the following day.
7He continued to work after the riots, and returned to Australia on 8 March 2014. The security contract changed from G4S to Wilson Security and Mr Gloger returned to Manus Island working for Wilson Security for three years until 2017.
8In his first affidavit, affirmed 21 December 2022, Mr Gloger says that he was exposed to a traumatic incident in East Timor while stationed there with the ADF in 2006. In that affidavit, he says that after the riot at Manus Island, he was “in shock” and was stressed but did not think “stopping was an option”.[3] He started to increase his level of alcohol consumption to “numb [his] thoughts”.[4] He had problems with his partner, Victoria. When he returned to work with Wilson Security on Manus Island, he felt the systems were better, and he stayed working there, but was “struggling” and asked for time off.[5] His symptoms included night sweats, frequent urination, and being startled by high-pitched noises. He became irritable and snappy and worried that he was “no longer the happy-go-lucky person” he had been before Manus Island.[6]
[3]Further Amended Plaintiff’s Court Book (“PCB”) 7
[4]PCB 7
[5]PCB 7
[6]PCB 7
Complaints to general practitioner
9On 8 June 2017, he attended his general practitioner, Dr Abigail Ngweso, while back in Queensland, although he was still working on Manus Island for Wilson Security at that time.
10Dr Ngweso noted, on 8 June 2017:
“Mental Health Concerns
P/H [past history] was in Aust Army for 10 years - was 8 months [in] East Timor 2006- came home from East Timor when mum going tro (sic) lung CA & she fought it for 6 years-very traumatic both mum’s illness & death & also stuff in East Timor- saw results of machete fights,
Manus Island- was there for several of the riots plus the recent shootings, has also seen people self-harming- his job is Emergency Response Team
been working Manus Island for 4 years
is taking a toll on him & his family relationships, he feels ‘I’m a ball of anxiety….I’m not the same happy person I used to be’
sometimes I have nightmares -wife can wake me up because I’m yelling
not sleeping well- ‘I worry a lot in bed about the future’
I relive things I’ve seen
no suicidal intent,no suicidal thoughts
was getting tired of Army Life & was offered a job in security on Manus Island so took it- didn’t realaise (sic) what was involved except was good pay.
… .”[7]
(sic)
[7]PCB 86
11On 9 June 2017, Mr Gloger had a follow-up consultation with Dr Ngweso. She noted:
“Follow up consultation,
PTSD (post-traumatic stress disorder)
Depression
…
discussion- ‘my problem is more from the riots in 2014 -I was very close to it -to the shooting’ ‘My biggest thing is whistling-that’s how they coordinated the whistles, Now whenever I hear a whistle I’m almost sh--ing my pants-almost heightened alert’- ‘even kids screaming in shopping centre sounds like a whistle’
has private health cover Defence Health
offered referral to psychiatrist-is agreeable , understands will be paying & gets some money back from Medicare.”[8]
(sic)
[8]PCB 83-84
12Dr Ngweso referred Mr Gloger to a psychiatrist.
13A few months after his consultation with Dr Ngweso, Mr Gloger returned to Australia and worked as a corrections officer with Queensland Corrective Services for about eleven months. He says he was not coping with that work because of his psychiatric condition, and stopped work in 2018. He has not been in paid work since.
Plaintiff’s evidence
14In his first affidavit, Mr Gloger describes his symptoms as:
(a) anxiety, nightmares about the riots and flashbacks including of being in the back of a ute with detainees;
(b) sweating and frequent urination;
(c) irritability and excessive worry;
(d) negative feelings towards people from the Middle East;
(e) avoidance of social situations;
(f) depression;
(g) suicidal thoughts;
(h) anger, particularly focused on the riots;
(i) feeling flat, restless and nervous;
(j) difficulty making decisions;
(k) lethargy; and
(l) hypervigilance.
15In his second affidavit affirmed 14 November 2023, Mr Gloger said that the incident in East Timor “did not affect … [him] at the time … [he] was working for the Respondent at Manus Island, including during the riots between 16 and 18 February 2014”.[9]
[9]PCB 11
16He was advised to make an application for incapacity payments based on his work in the ADF. He says the Department of Veterans’ Affairs (“DVA”) did not accept that his anxiety condition was related to his time in the ADF and he did not think that they accepted his panic disorder as related to ADF work. He suffers from those conditions and believes they were caused by the employment.
17He says he did his best to carry on working as he thought the best thing would be to ignore his problems and hope that his mental state improved. As the years progressed, he found it increasingly hard to cope. He says he felt “different psychologically” after the riots.[10]
[10]PCB 12
18He says he felt apprehensive about getting treatment and did not know much about PTSD; however, things got to the point where his daily life was becoming hard from a psychological point of view, and his relationship with his partner, Victoria, was badly impacted. He was unpredictable and his mood was poor.
19He says he has now gained insight into both his time in the ADF and the employment and believes that his experience in East Timor was traumatic, but not as “bad” as the employment. In his mind, the employment impacted upon him to a greater degree than his experience with the ADF but he relies on the opinions of doctors as to the cause of his problems.
20He currently takes psychiatric medication including Pristiq, Valdoxan, Isoflora, tetrahydrocannabinol, CBD oral solution and Seroquel.
21Until recently, he was able to do volunteer work but his capacity for work fluctuates unpredictably. When he is experiencing greater stress and anxiety, his capacity to do volunteer work is reduced.
22When he has a bad day, he will spend most of the day in bed. He stays at home and does not want to be around people or talk to anyone, including Victoria. He reacts very negatively to perceptions of stress, and becomes irritable. His concentration is affected when he is anxious. He feels guilty and feels he is a burden on his family.
23He continues to have nightmares, including about the Manus riots. His anxiety is triggered by screaming, whistling or loud noises. He is sensitive to noise, and avoids busy places. Certain things can trigger memories of Manus Island, including chairs in waiting rooms. He worries about being attacked when he is outside the house. Sometimes this worry can cause a panic attack.
24He has been able to complete a course of study at his own pace in his own time at home. He has been able to volunteer as a vet nurse at “Well Pets” for up to 20 hours a week but stopped this volunteer work about two months ago due to increased anxiety and stress. He says he is in varying states of worry when he is at Well Pets, and gets anxious if there is a new staff member. He worries about getting to know people and worries about interactions with colleagues.
25His medication can make him feel groggy. Sometimes this impacts on his ability to help care for his children, particularly in the evening. He has lowered motivation, lowered energy, feelings of helplessness, worthlessness and regret.
Pre-existing PTSD
26He says that, although he did have PTSD following his service in East Timor, it was not as severe as after the employment and did not impede his work.
27He had not sought any specific treatment in relation to his service in East Timor.
Application to the DVA
28In about February 2018, Mr Gloger made a claim to the DVA for compensation for injuries arising from his service in the ADF.[11] He made claims for PTSD, anxiety, and depression. In that application, he said he first became aware of symptoms on 1 March 2007.
[11]Second Further Amended Defendant’s Court Book (“DCB”) 35-50
29In about August 2018, he made a further claim for compensation from the DVA for a back injury, hearing loss, bilateral tinnitus, and bruxism.[12] In that application, he said he first became aware of symptoms of his back injury on 1 April 2007,[13] hearing loss and tinnitus on 31 December 2007,[14] and bruxism on 1 March 2007.[15]
[12]DCB 51-61
[13]DCB 54
[14]DCB 55-56
[15]DCB 57
30On 29 June 2018, he received a “determination of claim” in relation to his first application for PTSD, depression and anxiety.[16] PTSD and depression were accepted claims. Anxiety was not accepted.
[16]DCB 62
31The delegate accepted that he met the following factor:
“experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder.”[17]
[17]DCB 65
32The delegate noted the plaintiff’s contention as to the cause of this condition, being incidents that occurred during his deployment to East Timor. The delegate noted the report of Dr Howard Granger, psychiatrist, that:
“… ‘Undoubtedly, his [a]rmy service contributed to his PTSD, and, subsequently his depression. What he went through in East Timor is more than sufficient to cause PTSD, even though he did have further traumatic experiences on Manus Island’.”[18]
[18]DCB 65
33The delegate considered the date of onset of the condition was 17 March 2007.
34Mr Gloger contested the rejection of his claim for anxiety.[19]
[19]DCB 70
35On 27 November 2018, Mr Gloger’s claim in relation to facet joint degeneration from 24 February 2009, bilateral sensorineural hearing loss from 25 August 2018, tinnitus from 1 April 2007 and bruxism from 6 October 2010 were accepted.[20]
[20]DCB 78
36On 16 January 2019, Mr Gloger received a Combined Impairment Report from the DVA which assessed his combined impairment rating as 38 points.[21] It is beyond the scope of these reasons to go into the methodology behind the DVA impairment rating system. My understanding is that a number of factors are assessed and given a rating, the ratings are combined to give a total rating which, in combination with an overall lifestyle rating and a compensation factor, determine a maximum weekly compensation amount and a whole person impairment weekly amount.
[21]DCB 86-94
37On 22 July 2019, Mr Gloger received a determination for additional injuries.[22] The DVA accepted his claims for erectile dysfunction from 23 May 2019, tooth wear from 21 March 2019, sleep apnoea from 11 February 2019 and seborrheic dermatitis from 23 May 2019. On 19 September 2019, his claim for rosacea was rejected.[23]
[22]DCB 95-103
[23]DCB 104
38On 8 August 2019, he received a combined impairment report which increased his combined impairment rating to 60 points.[24]
[24]DCB 108-116
39On 27 November 2019, he received a further combined impairment report which increased his rating to 72 points.[25]
[25]DCB 117-127
40On 16 July 2020, he received a further combined impairment report in which his rating was increased to 85 points.[26]
[26]DCB 128-139
41Mr Gloger gave evidence that over this period, the PTSD symptoms he was experiencing deteriorated which resulted in an increase in the rating points.[27] He also obtained a report from his treating doctor, Dr Burns, which was taken into account by the delegate in making the impairment rating assessment.[28]
[27]Transcript (“T”) 37, Lines (“L”) 21-22
[28]T36, L25 – T36, L4
42As a consequence of his impairment rating, he received lump sum compensation and was entitled to an additional payment in relation to each child.
43In addition, he receives an incapacity payment which, as at March 2023, amounts to $1,415 gross per week.[29] He has also received assistance from the DVA in rehabilitation and training.[30]
[29]T41
[30]T41, L26 – T42, L9
44In support of Mr Gloger’s application to the DVA, his wife provided a statement.[31] In that statement, she noted numerous “restrictions on personality” before Manus Island including:[32]
[31]DCB 204-205
[32]DCB 204
(a) She would have to stay home when he was having a bad day;
(b) He showed limited intimacy or affection;
(c) He had difficulty talking to her;
(d) He cannot tolerate family or friends if their personalities clash;
(e) They do not attend social events together;
(f) When he is having a bad day, “it’s like walking on egg shells around him”;
(g) She worries he might suicide;
(h) Loud noises freak him out;
(i) He constantly spoke negatively about his weight and appearance;
(j) He needed afternoon naps and slept a lot;
(k) He would have trouble getting to sleep and would punch, kick and push her in his sleep when dreaming, grind his teeth and wake from bad dreams frequently;
(l) Frequent defecation and urination when he was having a bad day;
(m) Difficulty driving in traffic;
(n) Extreme stress if he or someone else was running late;
(o) Not running like he used to;
(p) Does not catch public transport because of stress caused by cramped conditions;
(q) Stress about flying;
(r) Stopped playing video games because would get too stressed;
(s) Cancelled a holiday because did not want to leave the house;
(t) Socially withdrawn;
(u) Stressed by films depicting conflict or action scenes;
(v) Cannot go to the grocery shop because it is too busy;
(w) Aversion to steak because the smell reminded him of an incident in Timor;
(x) Too fatigued to clean the house;
(y) Taking multiple sick days;
(z) Avoids work if he knows particular staff will be there. Can become angry and aggressive;
(aa) Easily irritable; and
(bb) Avoids activities in the workplace that make him uncomfortable.
Medical opinions
Desley Miller
45In December 2018, Mr Gloger started seeing a psychologist, Ms Desley Miller. Her report of 14 December 2018 to his general practitioner, Dr Robert Burns, noted that Mr Gloger felt his psychiatric treatment had focused on medication rather than on insight and understanding and he was keen to have assistance to identify and learn skills to change his life focus. She noted that he was “eager to have someone to talk with about the experiences he has had since he was 18 in the army and then as part of the security force on Manus Island”.[33] She noted he had heightened anxiety, over-reaction and aggressiveness in some circumstances.
[33]PCB 82
Dr Robert Burns
46In a report dated 14 September 2023, Dr Burns, general practitioner, opined that Mr Gloger’s PTSD and depression have each been exacerbated and aggravated by his employment as a Safety and Security Officer during the 2014 riots on the Manus Island Facility.[34] He also diagnosed Generalised Anxiety and Panic Disorder, which he identified as being caused by the 2014 riots on Manus Island.[35]
[34]PCB 22
[35]PCB 22
Dr David Weissman
47Mr Gloger gave a history to Dr Weissman, psychiatrist, on 14 November 2022 that when he returned to Australia after serving in East Timor, he experienced recurrent thoughts and flashbacks as well as bad dreams and nightmares. For a few months, he kept thinking “where is my weapon”.[36] He told Dr Weismann that his symptoms lasted only a few months and then completely remitted, and never returned again.[37] Dr Weismann diagnosed him with a mild and relatively short-lived PTSD for a few months after East Timor that fully remitted/resolved.[38]
[36]PCB 35
[37]PCB 35
[38]PCB 43
48Dr Weissman diagnosed Mr Gloger with an acute stress disorder and acute adjustment disorder which evolved into a chronic moderately severe Adjustment Disorder and then to a chronic Major Depressive Disorder with anxious distress, of moderate intensity.[39] He also diagnosed Mr Gloger with a moderately severe “classical and discernible chronic post traumatic stress disorder”.[40]
[39]PCB 44
[40]PCB 44
49At a subsequent appointment with Dr Weissman on 30 October 2023, Mr Gloger told Dr Weissman that his thoughts and flashbacks as well as bad dreams and nightmares about his previous experiences in Timor are “pretty good” and that he no longer had thoughts about “the weapon thing” that he had mentioned in the original interview.[41] He had not had specific thoughts, flashbacks, bad dreams or nightmares about Timor for more than a year. Dr Weismann considered the PTSD from Timor was now in full remission, but that his previous PTSD rendered Mr Gloger somewhat more prone, vulnerable and susceptible to developing psychiatric problems and difficulties.[42]
[41]PCB 53
[42]PCB 65
50He considered Mr Gloger continued to suffer moderately severe classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the employment on Manus Island.[43] He diagnosed a moderately severe sustained pervasive and persistent depressive syndrome. He noted his alcohol abuse disorder was now in full remission.[44]
[43]PCB 61
[44]PCB 64
Dr Vanessa Johnson
51Mr Gloger consulted, Dr Vanessa Johnson, psychiatrist, in June 2019 and saw her regularly between June 2019 and June 2021 and infrequently since. He told her that he witnessed a number of traumatic events whilst in the ADF and working in Timor. He experienced some trauma symptoms at that time but did not receive any specific treatment and the symptoms resolved over a few months.[45]
[45]PCB 25
52Dr Johnson noted Mr Gloger’s symptoms emerged in a more sustained way after the riots on Manus Island and continued after leaving that job. She diagnosed him initially with PTSD and a co-morbid Major Depressive Disorder.[46] She noted his mood and anxiety symptoms did improve significantly after his initial contact in 2019 but re-emerged at the end of 2022.[47] She noted residual trauma symptoms at that time and considered he remained vulnerable to relapse, particularly at times of increased stress.[48]
[46]PCB 25
[47]PCB 26
[48]PCB 26
Dr Howard Granger
53In a letter dated 29 May 2017, Dr Granger, psychiatrist, provided a diagnosis of PTSD and Major Depression. Dr Granger noted that Mr Gloger met the criteria for PTSD during 2007, and that his depression became more serious in 2017.[49] His army service contributed to his PTSD and subsequently, his depression.
[49]DCB 34
54Dr Granger opined that:
“… What he went through in East Timor is more than sufficient to cause PTSD, even though he did have further traumatic experiences on Manus Island. Trauma can independently cause depression or, and this is very likely in Michael’s case, years of replaying horrible things due to having PTSD sets you up to eventually suffer from a full-blown depression, which is what happened.”[50]
[50]DCB 34
55In a report dated 18 April 2023, Dr Granger confirmed that Mr Gloger already had PTSD from his military service in East Timor, and that the “tensions and stresses of working on Manus Island”, in particular, the riots, worsened his condition.[51]
[51]PCB 20
Dr Saji Damodaran
56Dr Damodaran, consultant psychiatrist, diagnosed Mr Gloger with PTSD with Major Depressive Disorder and Alcohol Disorder in remission.[52] He opined that the employment caused further aggravation of Mr Gloger’s pre-existing PTSD and is continuing to have a fluctuating impact on his overall functioning.[53] He says:
“It is difficult to identify the related contribution of the exposure of trauma in his emotional state, however it appears that the initial post-traumatic stress disorder was caused by army-related work and the exposure to trauma. It appears that the Manus Island experience caused an aggravation of his post-traumatic stress disorder, though the functional impairment was not persistent and pronounced, as he was able to hold a job and he was able to maintain the job.”[54]
[52]DCB 19
[53]DCB 18
[54]DCB 19
57Following the employment, Dr Damodaran noted that there were changes in Mr Gloger’s demeanour, behaviour, cognitive process and thinking pattern. He recorded that Mr Gloger left Manus Island in 2017 as he was not coping well. He noted that Mr Gloger reported that he found it difficult to work in a correctional facility because it reminded him of his experiences in institutional detention.[55]
[55]DCB 19
Has there been an aggravation of the injury caused by the employment?
58The defendant says:
(a) Mr Gloger’s application to the DVA demonstrates that his incapacity for work arose because of his service in East Timor rather than because of the employment;
(b) Mrs Gloger’s statement in support of Mr Gloger’s DVA application, as well as Mr Gloger’s evidence in this proceeding,[56] demonstrate he was experiencing the consequences of PTSD prior to the employment;
(c) Mr Gloger downplayed the extent and severity of his trauma from the ADF in order to bolster his case in relation to the employment;
(d) the history provided to doctors and medico-legal experts does not reflect the true extent of his PTSD symptoms following his service in East Timor and, as a consequence, the opinions of those doctors about the consequences of the PTSD from the employment are unreliable and cannot be accepted; and
(e) he has not been frank with his doctors and experts about his claim for incapacity payments from the ADF.
[56]T52 – T56
59The plaintiff says:
(a) he was exposed to traumatic experiences in East Timor, and these caused him nightmares and some other symptoms;
(b) he now has a greater understanding of the way in which PTSD can cause symptoms and realises that the PTSD he developed following his service in East Timor had a more significant impact than he had previously attributed to it;
(c) he had no treatment for his condition during or after his time with the ADF, was never prescribed medication and did not take time off work;
(d) he continued to work full time in the ADF;
(e) by 2017, when he consulted his general practitioner, he attributed his problems to his experience during the employment. When asked about this, he said:
“I think it was the shock and awe of it. Most situations I’d been in, you were sort of trained for it, or you had intelligence these things were gonna happen. It’s more the shock and awe, yeah. Just the way it escalated so quickly out of nothing that I think sort of got to me a fair bit if that makes sense, though.”[57]
(sic)
(f) he was not trying to “pull the wool” over the reader’s eyes in his affidavit in relation to his service in East Timor, but rather reflect his own understanding of the relative impact of that service on his mental health condition;[58]
(g) his ADF service contributed to his PTSD but “in comparison Manus was a lot worse for me than what I believe Timor was”;[59]
(h) he had told Dr Weissman that he was on incapacity payments from the ADF.[60]
[57]T99, L28 – T100, L2
[58]T27, L12-14
[59]T49, L28-29
[60]T49, L10-12
Findings
60The defendant submits that the consequences of this injury do not elevate the plaintiff to the severe range, and relies upon the High Court decision of Transport Accident Commission v Katanas.[61] The Court in that case affirmed the decision in Mobilio v Balliotis,[62] that “severe” is of stronger force than “serious”.[63]
[61](2017) 262 CLR 550 (“Katanas”)
[62][1998] 3 VR 383
[63]Katanas (supra) at paragraph [5]
61In Katanas, relevant criteria to assess severity include the treatment required, as well as the symptoms, and the consequences of symptoms on daily activities, family and social life and educational pursuits.[64] The defendant submits that the High Court in Katanas contemplated that “severe” consequences might include hospitalisation, constant treatment and suicidal ideation.
[64]Katanas (supra) at paragraph [21]
62It is well established that, particularly when it comes to psychiatric injuries, the history a plaintiff provides to a doctor is important when assessing the weight and reliability of any opinion provided.[65]
[65]Petrovic v Victorian Workcover Authority [2018] VSCA 243
63In this case, the defendant submits that the plaintiff was not candid with his treaters and with the experts about his experience in East Timor, and consequently the opinions provided are unreliable. In those circumstances, the Court is not able to assess the consequences of the employment on Mr Gloger’s condition and is therefore unable to determine that he meets the relevant test.
64Although he did not seek any treatment at the time, he has been retrospectively diagnosed with a PTSD arising from his time in East Timor by Dr Granger, who identifies that experience as “more than sufficient” to have caused a PTSD.[66] On his own evidence, Mr Gloger says he can now recognise that the PTSD he developed as a result of his service in East Timor had not resolved shortly thereafter as he had told doctors and attested to in his affidavit, but had in fact persisted.
[66]DCB 65
65I accept that persistent symptoms arising from his pre-existing PTSD were downplayed in Mr Gloger’s affidavits and in his history to doctors. I am not persuaded, however, that this was in an effort to “pull the wool” over the eyes of the reader, or to deceive the medico-legal experts. Rather this reflected Mr Gloger’s own understanding of the relative impact of the various traumatic circumstances to which he has been exposed.
66Mr Gloger accepted that he continues to have symptoms arising from his service in East Timor. Mr Gloger accepted that those symptoms had not resolved, albeit that they were not acknowledged by him at the time.
67Mr Gloger is not a medical expert. He relies on the opinion of his medical treaters and medico-legal experts as to the relative contribution made by his service in East Timor and the employment to his PTSD.
68While those medical experts and treaters have formed their views based in part on Mr Gloger’s self-assessment of the impact of East Timor and Manus Island respectively on his mental health, they were also aware of the following:
(a) After East Timor and prior to Manus Island, he had remained in full time service with the ADF.
(b) He had not received any treatment, diagnosis, counselling or been prescribed any medication.
(c) He had not taken sick leave related to a mental health condition, or PTSD.
(d) He commenced work at Manus Island and, after the events of 15 and 16 February 2014, continued to work full time for more than three years.
69I accept Mr Gloger’s evidence that his training in the army contributed to his capacity to persist with his work, and his belief that if he was able to continue to work, his symptoms would dissipate. I accept that he formed this view, at least in part, because that had been his experience after East Timor.
70When he attended Dr Ngweso in June 2017, he identified his service in East Timor, his mother’s illness and her subsequent death, as well as the employment, as being traumatic events. At a follow-up consultation, he identified the employment as being “more” of his problem, in particular being triggered by whistling sounds.
71Eventually he came to appreciate that his symptoms were not resolving, and he was struggling to cope. He formed a view that if he could return to Australia, his mental health difficulties would resolve. However, working for the Department of Corrections did not result in a resolution of his symptoms and he was eventually unable to work. He sought and obtained psychiatric and psychological treatment. He continues to have treatment, albeit somewhat intermittently due to conflict with providers and his move to a more remote location where access to health services is more difficult.
72I am satisfied that prior to the employment, although he was experiencing symptoms of PTSD, those symptoms did not require psychiatric treatment or medication and did not inhibit his ability to work full time.
73After the employment, the pre-existing PTSD was aggravated to an extent that has resulted in his incapacity to work full time in his previous occupation, and has required psychiatric treatment and prescription medication. It is not possible to know exactly what would have happened to Mr Gloger’s underlying condition had the employment not occurred. It is possible that his East Timor related PTSD would have continued on as before, causing symptoms that did not incapacitate him for work or require treatment. It is also possible that the effects of the PTSD would have increased, even in the absence of the employment and subsequent aggravating events.
74However, given the timing of his symptoms, the history of the condition, Mr Gloger’s evidence about when and how the symptoms manifested in the wake of the 2014 riots and the medical opinions of the experts, I am satisfied on the balance of probabilities that the employment was a significant cause of the deterioration of his mental health as a result of a severe aggravation of his PTSD.
75I am satisfied that the consequences for Mr Gloger – incapacity for work, psychiatric treatment and medication – meet the test of “severe” and that he has therefore established he has a serious injury under the Act.
Has Mr Gloger sustained a pecuniary loss that meets the test?
76Since finishing his employment with the Department of Corrections, Mr Gloger has not undertaken any paid work.
77He completed a Certificate VI in veterinary nursing and has undertaken voluntary work as a veterinary nurse.
78Dr Damodaran says that Mr Gloger has a current work capacity to work part time at 20 hours per week and has a capacity to study. He has a guarded prognosis, and it is important that he continues to see the psychiatrist. He is currently seeing a psychiatrist under the DVA process.[67]
[67]DCB 19-20
79Mary Oliver, human resources consultant of Flexi Personnel, provided a report dated 3 November 2023 which sets out the hourly rate for a Veterinary Nurse pursuant to the award (Animal Care and Veterinary Services Award 2020) of $28.57 and an average salary range of $25.00 to $35.00 gross per hour ( A casual employee would be entitled to a 25 per cent loading on the hourly rate.[68]
[68]PCB 76
80Dr Johnson says Mr Gloger is incapacitated for employment as a security guard in any setting, can only work part time and the type of employment would need to be carefully considered. She considered his maximum work capacity to be 20 hours a week.[69]
[69]PCB 28
81Dr Granger says Mr Gloger cannot do any work that involves security, crowd control or dealing with people in tense and potentially dangerous situations.[70]
[70]PCB 20
82Dr Burns says Mr Gloger is totally unfit for paid work indefinitely and that he is suited to voluntary work for a maximum of 8 hours per week.[71]
[71]PCB 23
83Dr Weissman says, in his report of 14 November 2022, Mr Gloger was totally and permanently incapacitated for pre-injury employment. He believed at that time that, in the future, Mr Gloger “should” be able to work at least part-time hours as a veterinary nurse, but due to the nature and complexity of his injury, may not be able to work full time.[72] However, in his report of 30 October 2023, he opined that Mr Gloger was totally psychiatrically incapacitated for work including any work as a veterinary nurse. He considered there might be a mild improvement of Mr Gloger’s psychiatric state after the resolution of legal proceedings and, if so, he may have a partial capacity for work as a veterinary nurse or in suitable employment of 10 hours a week, with “an absolute maximum capacity of 20 hours per week”.[73]
[72]PCB 45
[73]PCB 67
84There is consensus in the medical opinion that Mr Gloger has no capacity for pre-injury employment and a restricted capacity for suitable employment, up to a maximum of 20 hours per week.
85However, there is a dispute between the parties as to whether the cause of the restriction on his work capacity is the injury caused by the employment.
86I accept the plaintiff’s submission that the acceptance of his claim for PTSD and other conditions by the DVA does not establish that his incapacity for work is caused primarily by his East Timor service. The DVA has to be satisfied that there is “a reasonable hypothesis” that the service was a cause of the incapacity. The DVA found that he met the condition of exposure to a “category 1B stressor” before the clinical onset of PTSD.
87Doing the best I can on the evidence before me, it appears that in order to qualify for a DVA incapacity payment, he must establish that he was exposed to something that could have caused PTSD prior to the onset of clinical symptoms, and that, having met that condition, he must establish he has those clinical symptoms and that there is a reasonable hypothesis that the category 1B stressor was a cause of the symptoms.
88He has satisfied the DVA that he meets these criteria. This does not preclude him from also satisfying this Court that the employment was a significant contributing cause of his current condition and that the aggravation of his condition has been productive of a pecuniary loss that meets the test.
89It follows from my finding that the aggravation of his injury meets the test for “severe” that I am satisfied that his incapacity for work has been substantially caused by the employment.
90However, the defendant submits that Mr Gloger does not meet the test for pecuniary loss because:
(a) the Court cannot be satisfied that Mr Gloger has sustained a 40 per cent or more loss of earning capacity arising from the employment; and
(b) even if Mr Gloger has sustained a loss of earning capacity, the Court cannot be satisfied that the consequences of that pecuniary loss meet the test of “severe”.
91The defendant says that, while a finding that a plaintiff satisfied the pecuniary test means that a plaintiff will also satisfy the pain and suffering test,[74] the reverse is not true. Therefore, while the pain and suffering consequences might amount to a serious injury, unless a plaintiff can also establish that the pecuniary consequences are severe, the pecuniary loss test is not satisfied.
[74]Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
92The defendant says that, as Mr Gloger is in receipt of ongoing payments from the DVA and has also received lump sum compensation from the DVA, the pecuniary consequences for him are not severe. The defendant submits that Mr Gloger has put on no evidence of the consequences of the pecuniary loss for him, and that even if he could satisfy the Court that his loss of earning capacity is permanent and amounts to more than 40 per cent of his “without injury” earning capacity, the Court cannot be satisfied, on the evidence, that that loss amounts to a severe consequence in the circumstances of this case.
93The defendant says because the plaintiff is “earning $1,400 on a pension elsewhere, that he wouldn’t be entitled to if he was working”, the consequences of any financial loss to him caused by his injury are “not there”.[75]
[75]T122, L9-13
94The defendant says the evidence shows that the consequences of the pecuniary loss for Mr Gloger are not severe because he has been able to study and has worked on a volunteer basis in a job he loves, where he was voted employee of the month and nominated for “Volunteer of the Year”. He has a pension from the DVA and there is no evidence of financial hardship or other pecuniary consequences for Mr Gloger that would meet the test of severe.
95Further, the defendant submits that the Court cannot be satisfied that the plaintiff has a 40 per cent loss of earning capacity, nor that any loss of earning capacity is permanent.
96The defendant says Mr Gloger’s long-term career progression was not going to see him continue to earn a salary in the region of $140,000 a year, because he was always intending to leave Manus Island and his earning capacity in Australia was more in line with what he was earning at the Department of Corrections and in the ADF.
97The defendant says he retains a working capacity of at least 20 hours a week but not all of the loss of working capacity can be attributed to the employment.
98The plaintiff says the DVA payments are not relevant except to the extent that they may demonstrate a lack of motivation by the plaintiff to seek employment.
99The plaintiff says the earning capacity that most fairly represents his “without injury” earnings is $139,339. He therefore must show that his current earning capacity is less than $83,603.40 but that, even if the Court accepted that the “without injury” earning capacity was that of a veterinary nurse, he does not have a capacity to earn at least 60 per cent of that salary.
Has Mr Gloger suffered a 40 per cent permanent loss of earning capacity as a result of the employment?
100Although his service in East Timor may have contributed to his current incapacity, I am satisfied that it is the employment that is the significant cause of his current and permanent work incapacity. This is:
(a) consistent with his work history where he continued to work full time for more than a decade after his service in East Timor;
(b) consistent with his complaints about mental health issues to Dr Ngweso in 2017;
(c) consistent with most of the expert opinions, including Dr Damodaran, who was aware of Mr Gloger’s service in the ADF, and Dr Weissman, who was aware that Mr Gloger was in receipt of payments from the DVA.
101I accept the medical evidence that Mr Gloger has, at best, a capacity to work a maximum of 20 hours a week in suitable employment for the foreseeable future.
102The defendant did not propose a figure that most fairly represented Mr Gloger’s “without injury” earnings but said I should not accept the figure proposed by the plaintiff.
103His earnings at the time of his injury were around $139,000 and continued at about that amount for the three years after his injury. Notwithstanding his injury, he had the capacity in the three years after the injury, to continue to earn about $139,000 per year. I am satisfied that the figure that most fairly represents his “without injury” earning capacity is $139,000.
104The fact that, after 2018 he might not have continued to earn this amount, regardless of his injury, is a matter for assessment of damages at trial.
105In any event, whatever the “without injury” earnings figure, given my findings that the most significant cause of his incapacity to work is the employment, and that his capacity for employment is, at best, 20 hours a week in suitable employment, he meets the 40 per cent test. The experts agree that he is totally incapacitated for his pre-injury employment, or any other work in the security field or in dangerous situations.
106Suitable employment proposed by various experts is as a veterinary nurse. Even if I was to accept that his “without injury” earnings were those of a veterinary nurse, he now has capacity to work only 20 hours a week as a veterinary nurse. He therefore would still meet the 40 per cent test.
The Narrative Test
107In Guppy v Victorian WorkCover Authority,[76] the Court considered whether the aggravation of the plaintiff’s existing injury was sufficient to constitute a “serious injury”. The Court accepted that, although in that case, Mr Guppy’s loss of earning capacity satisfied the “very considerable test”, there may be circumstances in which even a loss of 40 per cent or more would not be “very considerable” for the individual worker and that the requirement of the legislation was to satisfy not just the 40 per cent but the narrative test that the pecuniary consequences were “severe”.[77]
[76][2010] VSCA 164
[77](Ibid) at paragraphs [49]-[51]
108In De Bono v Victorian WorkCover Authority,[78] the Court held that ss134AB(38)(c) of the Act required the relevant loss of earning capacity consequences to be fairly described as significant or marked, and at least very considerable when judged by a comparison of other cases in the range of possible impairment losses. The assessment of loss of earning capacity imposes an additional requirement, that the worker must establish a permanent loss of earning capacity of 40 per cent or more.[79]
[78][2019] VSCA 85
[79](Ibid) at paragraph [46]
109Forrest J in Acir v Frosster Pty Ltd,[80] held that the applicant must satisfy the narrative test with respect to loss of earning capacity before any consideration was given to the application of the further 40 per cent loss of earnings and permanence tests in s134AB(38)(e) and (f) of the Act.
[80][2009] VSC 454
110His Honour said that:
“… satisfaction of the narrative test overcomes the first hurdle for a worker. It is then necessary for Mr Acir to satisfy the separate tests laid down by sub-ss 134AB(38)(e), (f) and (g) … .”[81]
[81](Ibid) at paragraph [156]
111In Carroll v Victorian WorkCover Authority,[82] the Court held that, while proof of a permanent 40 per cent or more loss of earning capacity is necessary, it is not sufficient, and that an applicant must also meet the narrative test.[83] Further, the requirement that a plaintiff establish a 40 per cent loss of earning capacity directs attention to the earnings in the three years before and after injury; however, the narrative test does not so direct, but requires that the consequences of the pecuniary loss be “severe”. The outcome of the narrative test may consequently be different to the outcome of the 40 per cent test.[84]
[82][2022] VCC 764 (“Carroll”)
[83](Ibid) at paragraph [114]
[84](Ibid) at paragraph [206]
Does Mr Gloger meet the narrative test for pecuniary loss?
112Section 134AB(38) of the Act codifies the narrative test in Humphries v Poljak[85] for serious injury.
[85]Supra
113Section 134AB(38) provides:
“For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)—
(a) …
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) …
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) 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;
(e) where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in item 1 of Schedule 1A or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f);
(ii) …
(f) for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
… .”
114“Pecuniary loss damages” are defined as “damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage”.[86]
[86]Section 134AB(37) of the Act
115The legislation requires the Court to consider the consequences of a worker’s loss of earning capacity by looking at:
(a) the quantum of that loss of capacity – is it at least 40 per cent of the pre-injury earning capacity?
(b) the duration of that loss of capacity – will that loss of capacity continue permanently?; and
(c) whether the consequences of that loss of capacity, when judged by comparison with other cases in the range, meet the test of serious or severe.
116The legislation requires the Court to consider the consequences of the loss of earning capacity separately from the consequences on a worker of the pain and suffering consequences.
117The loss of earning capacity the Court must consider in determining both quantum and duration is the worker’s loss of capacity from personal exertion. A worker’s capacity to earn from something other than personal exertion, for example from income protection payments or pension benefits, is not relevant to assessing loss of earning capacity from personal exertion as required by the Act.
118If, as the defendant submits, the Court must consider the consequences for a worker in light of income that is received from something other than personal exertion, in this case DVA payments, then the Court is required to not only consider income from personal exertion for the purposes of satisfying the 40 per cent test, but required to consider all income received by the worker for the purposes of satisfying the narrative test.
119The result would be that people who are totally incapacitated for work due to injury but:
(a) are supported by a high earning partner; or
(b) have taken out income protection insurance; or
(c) receive social security payments that are similar to their “without injury” earnings; or
(d) are in receipt of ongoing weekly payments under the Act
would be unlikely to meet the narrative test and consequently could not make a claim for pecuniary loss under the Act.
120I am not persuaded that this is the correct application of the legislation. The legislation anticipates that consequences will be assessed by having regard to the consequences to the worker of losing 40 per cent of their earning capacity from personal exertion. It would be a perverse result if income that could not be taken into account in a common law trial for assessment of pecuniary loss, such as income protection payments, could be considered for the purposes of assessing whether a worker is entitled to make a claim for that pecuniary loss.
121I am not aware of any cases where, after finding that a worker had sustained a 40 per cent loss of earning capacity from personal exertion that was caused by the injury, the court decided that did not meet the narrative test.
122In Carroll, the plaintiff did not succeed because the Court was not satisfied that the cause of the loss of earning capacity was the claimed injury.
123I am not aware of, and counsel was not able to point me to, any cases where the Court had considered income other than from personal exertion, for example from income protection payments, a pension or weekly payments, in assessing whether the narrative test was met.
124Further, requiring a plaintiff to put on evidence in every case about the consequences of a 40 per cent loss of earning capacity would likely unnecessarily lengthen and complicate these applications. In most instances the Court can take judicial notice that a loss of 40 per cent of one’s earning capacity is likely to have consequences for the worker that meet the narrative test.
125I do not accept the submission by the defendant that the absence of evidence that the plaintiff is, for example, especially missing his pre-injury employment, or has had a particular emotional response to his loss of earning capacity is relevant to the test for pecuniary loss. Evidence that the loss of one’s ability to undertake former employment, or feelings of hopelessness or helplessness about one’s future employment would be matters more relevant to consideration of the test for pain and suffering consequences.
126Other than in rare circumstances, it is reasonable for a court to infer that a loss of 40 per cent of more of one’s “without injury” earning capacity is a loss that meets the test.
127Those rare circumstances might include a plaintiff who earns such a massive salary that 40 per cent results in no substantial impact on their finances, or, at the other end of the spectrum, a plaintiff who earns such a modest income that a 40 per cent loss amounts to only a few dollars. In those circumstances, the Court might require cogent evidence from a plaintiff that the consequences of the loss of earning capacity meet the narrative test.
128That is not this case.
129Accordingly, I consider the test is whether the consequences for Mr Gloger of losing 40 per cent of his “without injury” earning capacity from personal exertion are “severe”, having regard to the range of cases that come before the Court and having regard to all the evidence. I do not consider that the fact he receives payments from the DVA is a matter I can consider in assessing the consequences of his loss of earning capacity, except to the extent that it might impact upon his motivation to work. I do not accept, in this case, that Mr Gloger lacks a motivation to work. His efforts undertaking volunteer work demonstrate that he has a motivation and derives considerable benefit and satisfaction from that work. I accept his evidence that he would like to be in employment, and accept his evidence that his inability to work derives not from a lack of motivation to do so because he is in receipt of payments, but because of his psychiatric condition.
130I am satisfied that the consequences of a 40 per cent loss of earning capacity are, for Mr Gloger, consequences that meet the test of “severe”.
131Accordingly, I am satisfied that Mr Gloger meets the test for pecuniary loss.
132I grant leave to the plaintiff to bring common law proceedings for both pain and suffering and pecuniary loss.
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