Gordon v Victorian WorkCover Authority
[2021] VCC 484
•30 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00650
| JAMES ROBERT GORDON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 February 2021 | |
DATE OF JUDGMENT: | 30 April 2021 | |
CASE MAY BE CITED AS: | Gordon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 484 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychiatric impairment – aggravation – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors. [2006] VSCA 254; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dordev v Cowan & Ors [2006] VSCA 254; Katanas v Transport Accident Commission [2016] VSCA 140; O’Donnell v Reichard [1975] VR 916; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Pompei v Foster’s & Anor; Pompei v ExxonMobil Australia Pty Ltd [2019] VCC 1991; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Ms K Bradey | Hounslow Lawyers |
| For the Defendant | Ms B Myers | Thomson Geer |
HER HONOUR:
1By Originating Motion, leave was sought to bring proceedings for damages for pain and suffering pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) for psychiatric injury suffered by the plaintiff in the course of his employment with Cushman & Wakefield (“the employer”) from May 2014 until January 2017 (“the period of employment”).
2The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” for a psychiatric impairment.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue for the foreseeable future.
5Under the WIRC Act, the impairment must have consequences in relation to pain and suffering which are “when judged by comparison with other cases, in the range of possible impairments ... fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[1]
[1]Section 325(2)(c) of the WIRC Act
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.[4] Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[2] [1998] 3 VR 833
[3] (1995) 21 MVR 314
[4] Mobilio v Balliotis (ibid) at 846
8Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[6]
[5] Mobilio v Balliotis (Ibid) at 833
[6]Mobilio v Balliotis (Ibid). See Phillips JA at 858 and Charles JA at 860-861 to similar effect.
9The plaintiff bears an overall burden of proof upon the balance of probabilities. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak[7] and Petkovski v Galletti[8] in reaching my conclusions.
[7](2005) 14 VR 622
[8] [1994] 1 VR 436 and followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
10The plaintiff swore two affidavits and was cross-examined on Zoom. In addition, the parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11The plaintiff is presently aged sixty-seven, having been born in October 1953. After completing Year 12 at William Angliss College, he worked in a variety of roles. His first job was at BP Australia in retail sales for about nine years. He then worked as a youth worker at Malmsbury for five years, then three years at the Department of Community Services in Melbourne.
12The plaintiff completed an Advanced Certificate of Hospitality and Catering at William Angliss College during the 1980s. He then ran a delicatessen for a few years, following which he worked for Johnson Real Estate for about five years, selling businesses. He then worked at Barry Plant Real Estate in Rowville for four or five years in residential real estate. His next job was at Barton’s Real Estate for about four or five years.
13The plaintiff purchased his own body corporate business, Ace Body Corporate (“Ace”), which he ran for about five years, and he then moved into selling cars for Robert Lane Automobiles, where he worked for two or three years.
14From about 2006 to 2008, he returned to working in body corporate, managing properties for Turnbull Cook. He then did contract work in facilities management for around four years. He had a period out of the workforce from some time in late 2007 to mid 2008 because he was suffering from depressive symptoms.[9]
[9] First affidavit
15As there was some confusion as to where the plaintiff worked between 2007 and 2012, at the end of the hearing, his taxation returns were produced confirming his various jobs and earnings during that period.
Financial Year Ending Employer Income 30 June 2007 Turnbull Cook $57,307.00 30 June 2008
Turnbull Cook
$25,687.00
+ Newstart
30 June 2009
D Farris
Trustee for the McConville Business Trust
Newstart
$22,594.00
$26,294.00
$103.0030 June 2010
Facey Kendall O’Dea Pty Ltd
$17,498.00
+ Newstart
30 June 2011 Ikea Pty Ltd $43,163.00 Superannuation Payments $23,939.00 Morris Henry Lawson 1977 Family Trust $33,448.00 Hay’s Specialist Recruitment Pty Ltd $14,463.00 Newstart $787.00 Morris Henry Lawson Trust 1977 Family Trust
$27,008.00
30 June 2014 Hay’s Specialist Recruitment Pty Ltd $49,246.00 UGL Services Pty Ltd $13,935.00 Morris Henry Lawson Trust 1977 Family Trust
$19,050.00
16Recovre provided a transferable skills analysis in March 2018 in which the plaintiff’s work history was noted as follows:
Dates Employer Name Job Title 1999-2004 Ace Body Corporate Director 2005-2007 Turnbull Cook Body Corporate Manager 2008 Officeworks National Facilities Manager 2009 Facey Real Estate Body Corporate Manager 2008-2010 Knight Frank Operations Facilities Manager 2010 Knox City Shopping Centre Assistant Operations Manager 2010-2011 Ikea Facilities Manager 2011 Jones Lang LaSalle Facilities Manager – Telstra 2012-current
Cushman and Wakefield
Facilities Manager, Department of Treasury and Finance, VicRoads and Australia Post
Pre-injury health
Diabetes
17The plaintiff has had diabetes since about 1998, treated with medication. He saw an endocrinologist, and had regular podiatry, dental and optical reviews. The diabetes gave him pain in his fingers and hands a few years earlier, which he thought was diagnosed as Dupuytren’s contractures, but his fingers and hands were now quite good.[10]
[10] First affidavit
18The plaintiff did not think that his diabetes had not been under control for many years.[11] His diabetes has never caused him problems. He got on with his life.[12] He has been having medication for diabetes for some time.[13]
[11] Transcript (“T”) 33 – cross-examination
[12] T50
[13] T59
19His specialist told him they wanted to get his reading down and he “was too lazy to do that”.[14] He then agreed that when he saw Dr Cohen at the Baker Institute in September 2014, his diabetes was poorly controlled.[15]
[14] T65
[15] T66
20The plaintiff no longer has problems with his hands. He did have problems in 2015-2016. He was not told it was a complication of diabetes – it was arthritis.[16] He has been advised to have his feet checked every six months.[17]
[16] T72
[17] T84
Cardiac issues
21The plaintiff had had chest problems before working with the employer. They had been investigated “but they had come up with nothing”.[18] He was found to have hypertension around the same time, for which he then took medication.
[18] T34
22In December 2014, the plaintiff had chest pain.[19] His doctor sent him to Monash Hospital for tests. He was then admitted to the Jessie McPherson Hospital between about 13 and 15 January 2015 for further investigations, but told there were no abnormalities.
[19] Attendance at Dandenong Hospital on 16 December 2014
23The plaintiff had two angiograms following the episodes of chest pain. He was found to have some coronary artery disease, but was told that the investigations had revealed no heart abnormalities. He had been told in more recent times that the chest pains he was experiencing were because of panic attacks.[20]
[20] T34
24After the tests at Dandenong Hospital in December 2014 it was found he was fine and there was nothing wrong with his heart. He thought this was before he travelled to Abu Dhabi in early 2015.[21]
[21] T67, the records indicate however he had an angiogram on 9 January 2015 after he returned
25The plaintiff probably had the angiogram, but he was seeing a doctor about nerve pain at that time. The doctor probably told him he was getting better from some sort of viral illness. The plaintiff denied this situation was an incredible worry for him.[22]
[22] T68
Shingles/nerve pain
26In about February 2015, the plaintiff had nerve pain, like shingles. He had pins and needles across his torso at the front and he was in excruciating pain. He saw a specialist and was put on medication, which alleviated the symptoms over three or four months. He had some time off work during that time.
27He had shingles-type symptoms when he returned from Abu Dhabi. Lyrica kicked in and did its job and the shingles lasted for about four to six weeks.[23]
[23] T101
28He could not remember being examined by Dr Brian Coe in February 2015, where he was noted to have tiredness and loin pain.[24]
[24] T69
29In April 2015, the plaintiff took Lyrica for nerve pain. It seemed to help after two to three weeks.[25]
[25] T71
Other issues
30The plaintiff broke his ankle while working at Robert Lane in about 2004. He had surgery, and nine months off work, but then recovered and returned to work.
31In about May 2007, he had a gastroscopy but everything was found to be normal.
32He had bilateral hip replacements eight to ten years before swearing his September 2019 affidavit. His hips gave him a bit of an ache every now and again, but otherwise did not give him trouble. After the 2012 hip replacement, he was eager to get back to work and had only three weeks off. He went back to work on crutches on public transport.[26]
[26] T58
33In about 2012, the plaintiff had kidney stones surgically removed.
34He hurt his back in December 2015 when he slipped and landed on some stairs. He went to hospital for a check-up but nothing was found, and his back pain resolved over about a week. His back pain was only tweaks and twinges and he was playing cricket about that time.[27]
[27] T50
35He had a frozen right shoulder in about mid 2017. He had an ultrasound in August that year, repeated in June 2018 with an injection. He also had some physiotherapy.
36He had a shoulder replacement in 2019. His shoulder had worn out from years of playing cricket and football, and was by then causing him quite a lot of pain. His shoulder is now 80 to 90 per cent better than pre-surgery.[28]
[28] Second affidavit
37The plaintiff disagreed that he had significant health conditions before starting work for the employer. His diabetes was under control. He had not had major problems with his back and he had had weight issues all his life.[29] He does not get any pain from his total shoulder reconstruction anymore. His feet are not causing any problems.[30]
[29] T33
[30] T101
Psychiatric condition before the period of employment
38The plaintiff suffered symptoms of depression in about 2007. He had counselling and was put onto an anti-depressant medication and had some time off work. He had a recurrence of depressive symptoms in about 2010 and saw a psychiatrist but could not recall whether or not he had time off work.[31]
[31] First affidavit
39When the plaintiff and his first wife found out that her cancer was terminal, the family saw a child psychologist to try to help the children understand what was happening. The plaintiff had some grief counselling following her death, provided by the hospital.
40The plaintiff thought that he first started to experience the type of negative feelings about himself he deposed to, when Sharon Truman arrived at work with the employer. He was not aware of having those sorts of feelings before then. He denied he had had those feelings about himself for many years before he started this job.[32]
[32] T35
41Zoloft was prescribed in 2007 when he went through a depressive stage because he did not know where he was going and what he was doing and he had a family to look after.[33] He was then working as a real estate agent at Turnbull Cook managing properties.[34]
[33] T35
[34] T36
42The plaintiff agreed he went to a counselling service, Wave Care, in November 2007 after he left Turnbull Cook. He denied he left that job because of his depression; he left because he did not enjoy his work anymore. He denied he left because he was unwell and could not work.[35]
[35] T36
43Dr Feiber completed a mental health plan as it was required by Wavecare. The plaintiff could not remember if Zoloft was then prescribed. He did not think at that time he knew it was an antidepressant. He thought it was something to help him feel better. He was naïve at that stage about what it was. The doctor said “I can give you something that may help” and the plaintiff agreed to take it.[36]
[36] T37
44The plaintiff continued taking Zoloft for the rest of 2007, but there was not a great deal of change. It was a bit cloudy as to when there was an increase in his medication. It was changed to Cymbalta by another doctor,[37] while “Joe” was away.[38]
[37] Dr Feiber
[38] T37
45The plaintiff denied he was then not feeling mentally well. He thought he was. He believed he was coping, and he had always been able to cope with whatever life threw at him until his time with the employer. He would not know what the “clinical depression” was that Dr Feiber noted on 9 November 2007. The doctor would have told him that he was depressed.[39]
[39] T38
46Initially, the plaintiff was not looking for a job as he did not want to work. He had “his epiphany” and decided he was going to leave Turnbull Cook – “There are times in one’s life that one does not want to work. That was one time.”[40]
[40] T38
47The plaintiff thought he was off work from the end of 2007 for about twelve months. During that time, he received Centrelink certificates for depression.[41] He then was probably trying to get off Zoloft as it did not seem to be doing a great deal for him.[42]
[41][41] T41
[42] This was set out at T41ff
48While Dr Feiber noted in February 2010 that the plaintiff was one year out of a job and feeling depressed, the plaintiff had not worked for a substantial period after 2009 because he could not find work. He thought he had actually sent at least one hundred job applications in that time and could not get a job. He would have worked; he could not afford his bills on Centrelink.[43] Just prior to his job at Knox City, he had put in hundreds of job applications and could not get a job.[44]
[43] T45
[44] T100 – Recovre report
49The plaintiff agreed he went to Dr Okalyi once off in 2010. He denied he needed help with a mental health problem. He wanted some answers and he thought going to a psychiatrist may be able to give him some. He did not know whether he then knew or did not know he had a mental health problem.[45]
[45] T47
50While Dr Okalyi noted the plaintiff described himself as being in a black void and feeling useless, the plaintiff thought this may have referred to an earlier time when he had problems with his wife’s death, not more recently. He denied he had nightmares of rejection. Nightmares were more of loss after his wife died.[46]
[46] T48
Histories
51The plaintiff firmly believed it was correct as he answered “No” in his Claim Form that he had not previously had another injury or condition, or personal injury claim that relates to this injury or condition. He did have depression but he was “over it totally” before he started with the employer.[47]
[47] T74
52There was no reason not to be open with Dr Das about mental health problems before working with the employer.[48] The plaintiff believed he did not have any problems before then – he “was at full strength and able to handle most issues”.[49]
[48] T76 – he has no relevant past or family history
[49] T75
53The plaintiff could not remember what he had told Dr Dharmage about not having depression before 2015.[50]
[50] T78
54Before this “stuff at work” happened, the plaintiff felt good about himself. He felt healthy and like he was doing a good job. He believed he got better after the 2010 counselling.[51] He thought he was taking Cymbalta because he was getting very upset about “stuff” in his life.[52] It was correct as he stated in his Impairment Benefit Claim Form that he had stress in 2010 that had fully recovered.[53]
[51] T79
[52] T80
[53] T81
55Professor Doherty left out a lot of things in his report – “He records things that he thinks. He does not record things that are said.” Both he and Dr Das made assumptions that the plaintiff had a heart problem and he did not have one – “So I’ve got no faith in those two at all.”[54]
[54] T83
Work with the employer
56At some point in 2012, the plaintiff started working as a contractor for the employer. In that role, he managed Australia Post facilities for about two years, until joining the employer as an employee in about May 2014.[55]
[55] T57
57The plaintiff’s job was in facilities management, and at all times he worked out of the Department of Treasury and Finance (DTF) at Treasury Place, Melbourne, undertaking facilities management for State government departments.
58In about April 2015, he was allocated to work on a DTF project called Rapid Risk Assessment (“the Project”) which involved an audit to assess the security risk of a vast number of government department buildings throughout Victoria and then take action in relation to the audit results. This significant undertaking was bigger than all the facilities management the employer was then undertaking.
59The following account by the plaintiff of bullying and harassment was not challenged during the hearing.
60At the start, he was not given appropriate resources, even a phone, to do his Project work. There were no documented procedures or processes – such as a budget, no procedure for employing or paying security experts who did the assessments, no schedule for conducting risk assessments, or methods of record keeping in relation thereto, and no software to record and maintain Project records. He was not given any proper instruction about the Project’s direction. Any response to his requests for help took an extremely long time.
61The plaintiff was hampered in completing his work as the various State government departments were resistant to being involved in the Project and no one higher up in government was responsible for ensuring that the departments were cooperating with the Project. Sharon Truman, who was brought in to oversee the program, met similar resistance.
62As time went by, the plaintiff started to have issues with Sharon Truman. She spoke to him in a demeaning and threatening way and was intimidating in her manner towards him. She would not listen to him when issues arose in relation to the Project, and in the end, she would not even talk to him. He started to double guess what he was doing.
63In about November 2015, at the plaintiff’s request, a meeting was held with his account director, Jamie Stanfield, and Sharon to work out the plaintiff’s role. Sharon attacked the plaintiff, criticising his work, and she threatened to have him moved out of the team. She refused to cooperate with the plaintiff, making it impossible for him to do his job. She blamed him for the Project problems and refused to listen to any explanation he had for those issues.
64The plaintiff started to lose his confidence, which impacted on his ability to do his work properly. Nothing was done in response to his complaints to his superiors about Sharon’s treatment of him.
65In about December 2015, the plaintiff was told by his supervisor, Martin, that he was “off the case”. He raised his voice at the plaintiff and was abusive towards him.
66The plaintiff was then moved into a facility manager role, but remained in the same office as Sharon. She continued to speak to him in an inappropriate, abusive way. The plaintiff told Martin that he was always under attack by her, but Martin did not take any action.
67Towards the end of June 2016, the plaintiff suffered from what was later diagnosed as a panic attack, but at the time he thought he was having a heart attack, and he had about one month off work.
68The plaintiff returned to work in August 2016 on a gradual return to work program, doing audits on the road. The workload was excessive, with the impossible requirement to visit every site twice a year. He felt worthless, had reduced self-esteem and had lost faith in himself. He was pushed to do the job and told he was not doing enough. The employer then took away his iPad, which made it even more difficult for him to do his job. He started to have suicidal thoughts. He asked to be put in a less stressful facilities management role, but was told there were none available. He struggled on with the job until February 2017, when he ceased work. His position was made redundant in January 2018.
Medical treatment
69By April 2015, Sharon Truman was really starting to get to the plaintiff, and he was struggling to cope. He asked his doctor to be put back on Cymbalta, which he had taken on and off over the years.[56]
[56] T69 – he could not remember being taken off Cymbalta in February 2015
70The plaintiff attended his doctor in May 2016 and told him about the work problems, and problems he was having at that time with the health of his wife and father. He was then referred to see a psychologist, Bill Efremidis, in about June 2016 through his workplace Employee Assistance Program (“EAP”), whom he saw about six times.
71About the end of June 2016, the plaintiff saw his doctor because he had chest pain, he could not breathe, and had pain in his arms and chest. This pain was very different to his pain in December 2014, and he thought he was having a heart attack. He had never previously experienced symptoms of that nature.
72He was taken by ambulance to The Valley Hospital, where he underwent tests. He was told he had suffered a panic attack. His doctor referred him to Rita Lapidus, psychologist, whom he first saw in about July 2016.[57]
[57] Seems to be February 2017
73The plaintiff had about a month off work following the panic attack towards the end of June 2016. He returned to work in August 2016 on a gradual return to work program, initially working from the employer’s South Melbourne offices. In about January 2017, his doctor put him off work.
74In about February or March 2017, the plaintiff started doing audits on the road. He had many days off during that time and ceased work again in about July 2017. His position was made redundant in January 2018. He was then beyond retirement age and made no claim for loss of earnings or loss of earning capacity.[58]
[58] First affidavit
75In December 2017, the plaintiff began seeing psychiatrist, Dr Dulip Dharmage, at the insurer’s suggestion, after it advised him he should have his medication checked. Dr Dharmage started the plaintiff on 20 milligrams of Lexapro and then increased the dosage to 30 milligrams.[59]
[59] T20
76In late 2019,[60] the plaintiff continued to take that dosage. He was seeing Dr Lapidus fortnightly, and Dr Dharmage a couple of times a year. He also saw his general practitioner for review about every month.
[60] First affidavit
77The plaintiff then had no energy, and felt tired all the time. He found it hard to focus, and had confusion and memory problems. He had lost his confidence and had low esteem. He had strange dreams, which he struggled to remember when he woke, recalling the theme of the dreams, but not the specifics.
78He became tearful, particularly when he had to talk about his experiences or when he heard songs from the past. His appetite had been affected, and he now ate too much.
79He had fits of anger over things that previously would not have bothered him. He was quick to anger, and irritable with his wife and children, and he just felt low all of the time.
Hobbies
Cars
80The plaintiff had lost his interest in his pre-injury hobbies. He used to restore cars as a hobby in his spare time, but he no longer had any interest in that activity. His psychologist was urging him to get back into doing car restoration as part of his therapy, so he tried to force himself to do it, but he just did not enjoy it as he did previously.[61]
[61] First affidavit
81The plaintiff was the president of the Alfa Romeo Owners’ Club from 2007 to 2009. He “started diminishing the way [he] approached his cars” and his Club activities when he started with the employer in May 2014. Before then, he did not have any problems. He was building and racing cars and he had a lot of interest in them. He used to speak to many people about cars, including people overseas.[62]
[62] T13
82When he was Club president, he had a lot of conversations with other chapters of the Club in Australia. He was still racing cars while at Australia Post. On the weekends, he raced his Alfa Romeo, which he still owns, at places like Phillip Island and Sandown. In 2012-2013, he tried to do as many races as he could and raced five times in the year.[63]
[63] T13
83The plaintiff built this car from scratch over five years. He maintained and serviced it and also helped Club members work on their cars. He attended a weekly Club meeting. He was intending to build another car but had not got around to it. He also went on road trips three times a year.[64]
[64] T14
84The plaintiff has not touched the car at all that he is aware of since January 2017. He had seen Hugh Harrison, an old friend from the Club, who regularly serviced he and his wife’s car. Apart from that, he had had nothing at all to do with the Club since. He went to its 50th anniversary dinner two years ago. He thought it was “very off putting”. He felt uncomfortable and did not enjoy it as he normally would.[65]
[65] T15
85The plaintiff denied he told Dr Lapidus he had had a “terrific” time at the dinner. However, it was great to see all the old friends again. He agreed he had a brilliant time reminiscing. He “just did not have the same feeling”.[66] He thought the 50th dinner was great, it was okay, it was good, but it was not terrific. He could not recall the word he said to her, but it would have been a good time at least. He did have a good time reminiscing. He does not enjoy very many things.[67]
[66] T15
[67] T18
86The plaintiff told Dr Lapidus that he had been doing work on the car because he felt embarrassed. He told her he had done “a bit of this and a bit of that” as she had suggested that he work on the car as that was his therapy. He did not see this as a lie, although he had not been working the car.[68] He was not working on the car in June 2018 or March 2019 as she had noted. He told her he was because he was embarrassed, as she was asking him to work it and he felt like he was betraying her for not doing so.[69]
[68] T16
[69] T17
87The plaintiff confirmed he had lied to Dr Lapidus about working on the car because he was not proud of not being able to do so and she was trying to do the best thing for him, and he did not fulfil what she wanted him to do. He felt embarrassed in that respect because he did not fulfil it and he was even more embarrassed having to say he lied.[70]
[70] T97
88The plaintiff loved the companionship of the Club and also the challenge it posed in trying to be the fastest car on the circuit. It always gave him a buzz if he had something new or had updated his car. They would often go out for dinner on road trips. He enjoyed the atmosphere at the Club and meeting people, and really enjoyed the history of the car, and had a number of car books, which he continued to read.[71]
[71] T95
89When shown on Zoom in his study with a number of photographs of his car, he explained: “Well, beyond my wife, it was the second most important thing in my life.” He loved the companionship of people “with like minds”.[72]
[72] T96
Gardening
90Pre injury, the plaintiff also used to enjoy gardening, and had previously set up a large vegetable garden with raised beds for his son, but he ended up looking after the garden for him.
91The plaintiff also had his own garden and loved gardening. He changed the garden’s layout and planned what would grow and where he would put things. He no longer had any interest in the garden. He tried to force himself to get out in the garden but did not enjoy it anymore.
92The plaintiff was going to try a landscape and design course, but could not do it, because he had lost his confidence and had no self-esteem. He had lost his trust in himself and was always thinking he would “stuff things up”.[73]
[73] First affidavit
93Pre injury, he had a vegetable patch of about 200 square metres or eight garden beds. He had propagated his own plants since January 2017 but had not done so for the last couple of years since 2019. He had a greenhouse. He enjoyed it because he enjoyed the feeling that he had nurtured something from a seed to something from a table. At the end of 2019, he was doing very little in the garden and three-quarters of the seedlings that he had were never planted. He just did not feel like it. He did not have the capacity to do it.[74]
[74] T20
94Currently there are two patches of about 10 square metres. Prior to his injury, he grew a large range of fruit and vegetables in his garden and propagated a number of fruit trees. It was a thing of pride and he got a great deal of satisfaction out of it.[75]
[75] T98
Domestic activities
95The plaintiff had lost interest in cooking and other household tasks. He still cooked every night, but now tried to think of the easiest meals he could make because he did not enjoy cooking at all.[76]
[76] First affidavit
96In most instances he does the cooking at home.[77] He used to do a lot of three-star type meals, something you would get in a restaurant or a very good bistro. Now he cooks what does not take him very long, like an egg and bacon and toast.[78]
[77] T90
[78] T93
97His wife does most of the housework, much to his chagrin. He fills the dishwasher. He does not do any dusting. They have a cleaner once a fortnight. His wife is in charge of the washing.[79]
[79] T91
Sleep and personal hygiene
98The plaintiff found it hard to get to sleep, and when he did he was a very light sleeper, and woke about five times a night, and then struggled to get back to sleep.[80]
[80] First affidavit
99The plaintiff does not know whether his difficulty going to sleep is a mental or physical thing, but he knows his mind is going a million miles an hour at the time and it never slows down. Pre injury, he had to get up and go to the toilet frequently but he managed to get back to sleep.[81]
[81] T94; T34
100The plaintiff struggled to shave and clean his teeth every day, and often just did not bother. He would sometimes go for weeks without shaving. He often just wore the same clothes, day in, day out.[82]
[82] First affidavit
101The plaintiff now showers two to three days a week, having showered daily prior to his injury. He usually wears the same clothes for a week because he is not doing anything. He had a shave on the morning of the hearing, but normally would not shave for three or four weeks.[83]
[83] T90
Social Interaction
102The plaintiff avoided social interaction and tried to stay at home as much as possible. He rarely went out, and when he did it was only to his factory. He bought things on the internet rather than going to the shops.[84]
[84] First affidavit
103He even avoided going to family functions. If there was something on, he tried to make an excuse not to go. Accordingly, he was missing out on his grandchildren growing up. His mental health impacted on his marital relationship and the relationship with his children and grandchildren because he was sullen, he did not talk as much, and did not joke around like he used to.
104Before his experiences on the Project, he was always happy-go-lucky. He liked conversation and working with people, and really enjoyed working within a team.
105The plaintiff struggled to be around other people, and was irritable when with other people. One of the biggest regrets he had was the way that he was hurting people around him by his outbursts.[85]
[85] First affidavit
106The plaintiff now goes shopping if he has to but not every day. He does not feel comfortable when he is out.[86] He feels like people are looking at him. He feels he does not belong there.[87]
[86] T91
[87] T93
The business
107In September 2019, the plaintiff had recently inherited some money from his father. He had invested the money in acquiring equipment to start a small business, cleaning automotive, aeronautical and engineering parts (“the business”). At that time, the business was only in its infancy, and he had not made any income to date.
108When receiving his inheritance, the plaintiff felt he had to try to do something with the money, because he did not want to continue being a financial burden on his wife. Therefore, he used part of the money to try to establish the business. He thought this was something he might be able to do, because he knew he could never return to working in an office environment. However, he very soon realised that, for the business to get off the ground, he had to go out and sell it in order to get business through the door, and he just could not do that. He found he did not have the ability to talk to people. He could not do any face-to-face work. He also struggled with concentration, which meant he had trouble doing the paperwork associated with the business, and the business quickly failed.[88]
[88] Second affidavit
109The plaintiff considered himself to be in “forced retirement”, because he would be working now if he had not had his mental health problem with the employer. He had not applied for any jobs since January 2017[89] and had not looked for any jobs at all. He contemplated looking because his pension was totally inadequate and they were often short of money, but he had never looked, never even opened Seek.[90] Weekly payments just kept going and were then cut off without prior warning.[91]
[89] T23
[90] T24
[91] T24 – payments ceased on 10 April 2019
110The plaintiff agreed that in in April 2019, he might have discussed with Dr Feiber, with whom he had a long relationship, that he was looking for part-time work because he did not have enough money coming in. The plaintiff believed he was not looking for work while on the pension. He got the pension after the business failed.[92] He also received an insurance payout of about $20,000. He initially applied for the pension but withdrew the application when he received the inheritance.
[92] T25
111In about mid-2019, on receipt of his inheritance of several hundred thousand dollars,[93] the plaintiff paid off his mortgage and then decided to start the business which he called Eastern Aqua Blasting. He bought the equipment, having talked to suppliers, and found premises in Malvern Street, Bayswater – about 20 minutes from his home – which he leased through an agent for twelve months. He bought a vehicle for the business on Gumtree. He had help to organise an ABN.[94]
[93] T27
[94] T29
112He knew about aqua blasting from his research on the internet. He had had some work done at a local aqua blasting business, so he knew what the business involved, and it seemed to be a reasonably easy process that even he could do.[95]
[95] T28
113When asked how he was going to get work, the plaintiff said that is when it all became awry – “I got the business, I was able to do the work, and then I hit a brick wall. I couldn’t go out and spruik the business.”[96]
[96] T29
114The plaintiff had a Facebook page for the business in October 2019. He did not have to go and see people, it was easy. He then announced on Facebook the business was up and running, but it failed by November 2019. He closed it in January the following year. He did not work at all. His friend, Hugh, gave him things to work on but otherwise he got no other jobs. When asked why he gave up so soon, the plaintiff said he made a huge mistake, he could not get out and spruik the business, he was unable to do it, it was like he was “frozen”. If he had not been, he guessed the major thing would be to go around to all mechanical and engineering shops, put his case forward for the business, show them bits and pieces. He guessed he would also continue advertising on Facebook.[97]
[97] T31
115The plaintiff did not even have a sign out the front of the business, that is how prepared he was.[98] He knew it was a failure from day one. He knew he was not going to be capable probably two or three weeks after he started. Hugh told him he had get out and do the work and the plaintiff just looked at him and said “No, I can’t” and that is the day he decided to close the doors.[99]
[98] T99
[99] T100
116He spent about $35,000 on the equipment and the rent was going to be $1,000 a month. He sold the equipment in 2020 for about $18,000. The business cost him $50,000 in total.[100]
[100] T32
117He could not spruik the business because he could not go out in public, go and visit prospective clients, go to car clubs and tell them what he was doing, trying to build up a small clientele to start with.[101]
[101] T99
118“Just before [he] pulled the pin,” on the business he had been invited to the Citroen Car Club and had to cancel. He felt uncomfortable; he felt he was worthless. He did not feel that he was what he used to be – “I mean I used to stand up in front of the car clubs and in front of dignitaries at dinners and speak, and I couldn’t do that now, and I think that’s pretty obvious.”[102]
[102] T99
Current treatment
119The plaintiff has not seen Dr Dharmage since December 2018 and has not been referred to any other psychiatrist. He has been seeing Dr Lapidus every three weeks and last saw her on a Telehealth visit earlier this year. He had not been to any other psychologist since January 2017.[103]
[103] T21
120The plaintiff stopped going to the Australian Family Medical Centre in Oakleigh in 2019 because it was getting very difficult and onerous to go there so he changed to the Rowville Medical Centre. He had been to Rowville in 2017 for minor ailments. He did not see anyone at Rowville in relation to his mental health condition any time at all last year. He would just get his usual prescriptions there.[104] He would get five repeats about six monthly.[105]
[104] T22
[105] T23
Current condition
121The plaintiff continues to suffer the symptoms deposed to previously, and also recorded by Dr Sandra Hacker in her March 2020 report. He continues to feel suicidal at times and struggles badly with feelings of low self-worth. He lacks motivation to get up and do anything. It is a battle to just get going, and he very rarely goes out. He does not want to leave the house because, when he does, he feels that people are judging him, and he becomes anxious and worried and overwhelmed by negative emotions.
122The plaintiff has nightmares about Ms Truman about once a week.[106] He has had thoughts of self harm.[107]
[106] T100
[107] T91
123The plaintiff was glad when the COVID restrictions were in force, as they took away any expectation that he had to leave the house. He does not like going to crowded places, and feels safe at home. He does leave the house, but, when he does, he tries to get home as soon as he can. His social contact is basically limited to his immediate family, and even around them he struggles. He feels really low and flat. He has trouble making decisions and does not enjoy anything anymore.
124The plaintiff was cross-examined about his relationship with various family members. His son, Marcus, aged forty-two, lives in Cockatoo. He and his wife, Katie, have one child aged nine. The plaintiff sees them about once a month. They usually come to the plaintiff’s home.[108] His family understands he does not like going out and they respect that, so they come and see him.[109] He sees the children and stepchildren reasonably regularly, they visiting him.[110]
[108] T9
[109] T94
[110] T11
125The plaintiff’s son, David, is of no fixed address at the moment. He does not visit very often and the plaintiff does not have a lot to do with him. He did so until David decided to leave. David “has gone in his own way”.[111] He has drug issues “but the problems are that we approach it sensibly and say, ‘Well, we care about him’, but he’s forty and can do whatever he likes with his life.” He is old enough to look after himself.[112]
[111] T10
[112] T85
126“It was life” that the plaintiff’s wife had had problems with being bullied at work.[113] This issue had not really had any impact on his psychological wellbeing. He was not very happy, but he had nothing to do with this issue and just advised her what she should do about it.[114]
[113] T85
[114] T102
127The plaintiff’s stepfather and mother-in-law were both very old when they died and had a range of illnesses and were very incapacitated. It was a blessing they passed. He had the normal grieving reaction to both deaths.[115]
[115] T102
128The plaintiff denied he was unable to move forward because of these legal proceedings. He had been focussed on them but not completely. Once they were finished it was “not a panacea”. He does not believe he could hold down a job again. While he told Dr Das he was thinking about doing a course or perhaps a part-time job when the case is over, that is not his intention. He would be silly to wait all that time to go out and do something different. He could not do a job.[116]
[116] T86
129The plaintiff did not believe he could hold down a job again because he has no self-respect and lacks concentration. He is too old, but it is more that he could not give the job 100 per cent.[117] He has a very bad memory. He would not have been able to do his job with the employer with those issues.[118]
[117] T94
[118] T98
130Had he not been injured he would still be working, because he would be working towards a proper retirement and the feeling of being comfortable for the rest of his life.[119]
[119] T99
Lay evidence
131The plaintiff’s daughter-in‑law, Katie Gordon, swore an affidavit in February 2021. She is married to the plaintiff’s son, Marcus, and has known the plaintiff for twenty six years.
132Prior to the plaintiff working for the employer, she would describe him as having a vibrant personality. He was very social and loved dinner parties and barbecues, and really enjoyed getting out and about.
133They used to do social activities together, such as going to wineries for lunch, car shows or the Grand Prix. Prior to his workplace injury, the plaintiff was living life to the fullest. He always had a plan he was working on and enjoyed a challenge. He was very successful in his professional life.
134The plaintiff would enthusiastically accept invitations to events, parties and outings, but these days was more likely to decline or only attend for a short time. His social life had scaled right back, and he spent a huge amount of time at home and by himself. His mood was consistently flat and he struggled to see any positives in life, which was completely different to how he used to be.
135The plaintiff was always a keen gardener, with the lawns and garden well maintained and a thriving vegetable patch. While the patch still gets some attention, the garden is otherwise overgrown and he struggles to find the motivation to tackle such a big task.
136She can see that his workplace injury has had a profound psychological effect on him.
The Plaintiff’s treaters
Mr Efremidis
137The plaintiff saw Bill Efremidis, psychologist, for psychological counselling from 15 June 2016 through his workplace Employee Assistance Program (EAP).
138Mr Efremidis reported in July 2016 that the plaintiff had been experiencing multiple stressors in the last eighteen months, including occupational stress, adversely impacting on his psychological health and level of functioning. He expressed experiencing low self-worth, low self-confidence, low work morale and hopelessness.
139Formal assessment indicated the plaintiff was currently experiencing symptoms of depression, anxiety, and stress overall within the severe to extremely severe ranges, and his psychological state significantly affected his ability to be employed in his regular job full-time.
140The focus of counselling was to set achievable goals for the plaintiff to develop a set of coping strategies. As part of supporting improvement in his level of functioning, it was recommended he return to regular work duties part time, 20 hours a week, five days a week, for an initial period of two weeks.
Dr Lapidus
141The plaintiff was referred to Dr Lapidus, psychologist, by Dr Feiber on 13 February 2017 for assessment and management of his work/-related issues. Dr Feiber noted the plaintiff had a past history of depression, inter alia, and advised that the plaintiff was then taking Cymbalta, 60 milligrams a day.
142In a CGU form dated June 2017, Dr Lapidus advised that the plaintiff continued to report frustration and stress with his current situation. He did not feel able to return to the workplace, and reported he was being pressured to return. He did not believe anything would be different.
143Dr Lapidus then did not believe the plaintiff could return to his pre-injury work. He reported a bullying work situation with no real support from administration. He also reported occupational stress, low self-worth, depression and anxiety.
144As of January 2018, Dr Lapidus reported, having discussed a return to work plan with the plaintiff, that he felt currently unable to return to the same sort of work. He had experienced a traumatic emotional workplace injury. He described himself as someone who now had the attention span of a four-year-old. She agreed with his estimate of his work capacity, and then believed a return to his previous work would be so stressful as to precipitate a further trauma, the outcome of which would be likely to be even more emotionally devastating than in the first instance.
145In her September 2019 report, Dr Lapidus stated the plaintiff’s presentation was consistent with a diagnosis of a Major Depressive Disorder, features of which were ongoing and persistent, and resulted from workplace trauma. She then thought he needed ongoing support in resolving the issues that had persisted for several years, with the timespan for getting him back to work irrelevant, as he was then sixty-five. He needed ongoing psychological treatment for as long as it was required. Testing placed him in the highest levels of psychological distress and depression.
146Dr Lapidus noted that there were no pre-existing conditions that were barriers to the plaintiff’s recovery beyond the work events. He was emphatic he could never return to the work environment in which he was previously employed. He had a negative ability to survive in that climate.
147In her report of 19 September 2019, Dr Lapidus indicated that there had been no progress getting the plaintiff back to work. She noted Recovre’s April 2018 report, at which time the plaintiff was initially receptive to a garden design course, which she supported. He was unable to engage, stating he was sixty-five, suffering from work-induced depression, and would be unable to cope with the demands of back-to-work training. He had not wavered from the position that he could not cope with any office work environment. Discussion around that theme had always sent him into a state of extreme anxiety.
148In her most recent report of April 2020, the diagnosis remained of a major depressive illness of moderate severity. The plaintiff’s symptoms included depressed mood, fatigue and loss of energy, poor concentration and difficulty making decisions, feelings of worthlessness, sleep disturbance, diminished interest or pleasure in activities, and recurrent suicidal ideation without a specific plan. She thought his condition was not due to the physiological effects of a substance or a general medical condition, noting he was currently prescribed Lexapro 30-milligram for depression. He needed to have his medication reviewed after eighteen months; however, he was having difficulty leaving his home and was not meeting appointment times.
149Dr Lapidus thought it was highly likely that the plaintiff’s current difficulties stemmed from his work as an employee at Cushman’s that had begun in 2014. He described a highly toxic work environment that developed from a project he was given to manage in 2015. She outlined in detail, the matters deposed to by the plaintiff in this regard.
150She thought the plaintiff’s current psychological condition would suggest he has no suitability for returning to employment. It was difficult to ascertain the extent to which there might be a direct correlation between that work situation and any pre-existing psychological condition; however, he reported at the time of his initial employment that he was psychologically fit. She noted a health check conducted prior to his employment confirmed his wellbeing at the time.
151Dr Lapidus thought the plaintiff would continue to require therapeutic intervention indefinitely as a result of the bullying, harassment and psychological injury inflicted on him at work. That injury had had a profound effect on all aspects of his life, primarily on his capacity to return to any meaningful work.
152In her view, the plaintiff was unable to benefit from the intervention of rehabilitation. An interest in landscape design did not translate into the necessary motivation or ability to take on a course in that area. A more recent attempt to work with the machinery repair did not get off the ground. More recently, he had reported having difficulty leaving his home. He had missed several appointments with his medical team and had to reschedule.
153The plaintiff had also reported difficulties in his domestic and recreational activities. He could not do things he used to, such as restoration of motor vehicles, gardening and household maintenance, which were activities he once enjoyed.
154Dr Lapidus concluded that the plaintiff was continuing to suffer from a major depressive illness, noting his levels of depression, anxiety and stress were still at extreme levels as indicated by current testing. His condition had had a profound effect on all aspects of his functioning.
155She thought the plaintiff’s current condition had been substantially contributed to by his treatment at Cushman’s where he was subjected to bullying, harassment and humiliation at the hands of a representative from the DTF. Moreover, there was a clear lack of support given to the plaintiff by his superiors, and that exacerbated an already toxic situation.
Dr Dharmage
156The plaintiff saw psychiatrist, Dr Dharmage, following a referral from Dr Feiber in December 2017.
157On assessment, the plaintiff reported experiencing psychological and biological symptoms of depression since 2015 on a background of excessive workplace stressors.
158The plaintiff reported he had not experienced depression prior to 2015. Dr Dharmage noted the plaintiff was receiving treatment for diabetes and hypertension. He briefly described the difficulties the plaintiff had with the Project and the female officer who oversaw it.
159The plaintiff described his mood as depressed and anxious. His affect was congruently depressed and anxious. His speech was normal in rate, and he was not thought disordered. He was preoccupied with his stressful work experiences. He denied experiencing suicidal ideation, and had a good insight into his illness.
160Dr Dharmage thought the plaintiff’s symptoms were consistent with diagnoses of a Major Depressive Disorder and Generalised Anxiety Disorder. He discussed treatment options, noting the plaintiff had not responded well to Cymbalta even after being treated for over a year. He told him to wean off that drug gradually over the next month, and prescribed Mirtazapine 30 milligrams.
161In his report to Dr Feiber of 7 July 2018, Dr Dharmage confirmed his diagnosis. He noted since the initial assessment he had seen the plaintiff regularly, with his last review of the plaintiff’s mental state on 22 May 2018 when the plaintiff had had a mild improvement of his mental state. He reported he felt depressed and felt less energetic. He lacked motivation to attend to many tasks. Dr Dharmage prescribed Lexapro 20 milligrams and was planning to increase the dose to 30 milligrams.
162In his letter to Dr Feiber of 25 January 2019, Dr Dharmage advised he had last seen the plaintiff for a review of his mental state and treatment on 11 December 2018. The plaintiff then reported a significant improvement of his depressive and anxiety symptoms since the 30 milligrams of Lexapro, and they discussed him engaging in a business of his own once the WorkCover process was completed.
163In a similar letter to Dr Feiber dated 21 July 2019,[120] Dr Dharmage also advised that the plaintiff failed to attend three consecutive appointments in January, February and March 2019 and he was therefore discharging the plaintiff back to his care.
[120] Dr Feiber’s notes are not available after April 2019
Medico-legal evidence
Dr Hacker
164The plaintiff was examined by Dr Sandra Hacker, psychiatrist, in March 2020, and re‑examined on Zoom in December last year.
165Dr Hacker read Dr Feiber’s records dating back to 2007. She noted Sertraline was first prescribed in November that year, and a referral to Wavecare for depression. She also noted the plaintiff ceased work in December 2007 because he was depressed. In 2011, he was reported to be feeling depressed and not working.
166Dr Hacker noted the plaintiff first became overtly psychologically unwell around the time of his first wife’s death, which he attempted to manage by drinking heavily and attempting to raise his two children on his own. He re-partnered and did not become psychiatrically unwell again until 2007 in the context of difficulties with his two stepsons, who were both using illicit drugs. He had been taking anti-depressant medication since then. He first saw a psychiatrist in 2010 related to the difficulty with his stepsons.
167Dr Hacker described in detail the plaintiff’s difficulties with the employer from April 2015.
168Dr Hacker concluded that the plaintiff was suffering from a severe aggravation of a Major Depressive Disorder with additional work-related traumatisation features. She thought work with the employer was a significant contributing factor to his current psychological condition. She considered he required ongoing psychological treatment, ongoing psychopharmacological review by a psychiatrist, and continuing psychotropic medication.
169In her view, the difficulties at work led to the plaintiff’s current situation, which had been a significant and severe aggravation of his pre-existing depressive illness with additional work-related traumatisation features. He had no capacity for his pre-injury position, and his domestic, recreational, social and personal activities were affected.
170On re‑examination in December 2020, Dr Das and Professor Doherty’s reports were available to Dr Hacker.
171Dr Hacker noted the plaintiff became depressed when his first wife died of melanoma and he became bankrupt and lost his home. He developed diabetes in 1998, and his diabetic control appeared adequate.
172The plaintiff’s depression recurred in 2008, with an episode in 2010. In 2014, he had an episode of chest pain, which was investigated, and since then he had been treated with antihypertensive medication. The episode of chest pain in 2016 was diagnosed as a panic episode occurring in the context of work-related difficulties, and has not recurred.
173In her opinion, the plaintiff’s diabetes and cardiac condition were stable, and there was little evidence to indicate either of them contribute to his current psychiatric difficulties.
174Given the stability of the plaintiff’s diabetes and cardiac status, she disagreed with Professor Doherty’s comment that those conditions contributed to the development and maintenance of the depressive disorder. In her view, there was little evidence for the ongoing or increased impact of the plaintiff’s medical conditions on his current psychiatric status.
175While the plaintiff’s stepfather’s cancer diagnosis was distressing, he died in 2018, aged ninety-three, following which the plaintiff had a normal bereavement. There was no evidence provided by Professor Doherty or Dr Das of any current contribution of this event to the plaintiff’s condition.
176In Dr Hacker’s view, the plaintiff had been continuously depressed, with fluctuations in the severity of his condition, as is the usual course of the disorder, both prior to and since the workplace injury. Therefore, she thought, given the continuity since the onset of the work-related difficulties, that these are still a significant contributing factor to his current condition, and feature in his symptoms.
177Dr Hacker thought that Dr Richard Prytula’s apportionment of 80 per cent to the work-related contribution was more appropriate and evidence-based than the views of Professor Doherty and Dr Das.
178Dr Hacker thought the plaintiff continued to suffer from a chronic aggravation of a pre-existing recurrent depressive disorder with some work-related traumatisation features. His employment continued to be a significant contributing factor to his current psychological condition. He reported a range of traumatisation features specifically related to his employment there. Further, there was a continuity between his employment and his current psychiatric status. There was evidence that, despite having a pre-existing condition which was being well managed prior to his employment injury, he was able to be productive at work, being provided with a permanent position, having previously been employed on a contract.
179Dr Hacker thought the plaintiff would require anti-depressant medication indefinitely, provided by his general practitioner; that review by a psychiatrist for psychopharmacological opinion may be worthwhile to trial a range of other psychotropic medications in order to improve his current state, and that ongoing support via his current psychologist was necessary to maintain and hopefully improve his current state.
180Dr Hacker considered the plaintiff had a constitutional predisposition to a chronic recurrent depressive disorder, and vulnerability to episodes of depression were usually triggered by external events.
181It was notable that while the plaintiff had previous episodes of depression, he would recover with treatment and be able to return to work. When he began this job, he was taking anti-depressant medication and was working sufficiently adequately to be offered employment, having previously worked as a contractor.
182Dr Hacker concluded that the workplace injury had had a profound effect upon the plaintiff, differentiating it from his previous episodes of illness where he was, despite requiring treatment, able to work in a consistent and reliable manner.
183The plaintiff’s current psychological condition incapacitated him for pre-injury employment, and his domestic, recreational, social and personal activities continued to be impacted.
184In Dr Hacker’s view, the prognosis must be guarded. The plaintiff was currently quite severely depressed, with some suicidal thinking intermittently, being very significantly troubled by financial issues with feelings of worthlessness. The nature of the illness is that recurrences will occur from time to time, and that fluctuations in the degree of his depression may well be precipitated by negative external events.
The Defendant’s evidence
Australian Family Medical Centre Group – Dr Feiber
185These records commence in detail in June 2004, where Dr Feiber was the plaintiff’s main treater.
186On 9 November 2007, Dr Feiber noted that the plaintiff had been seen at Wavecare “feels it may be clinical depression”. Zoloft was first prescribed and continued on various dosages until October 2011, when the plaintiff took himself off that medication, and Cymbalta was prescribed. Cymbalta was prescribed at various times until January 2018, when the plaintiff first saw Dr Dharmage.
187On 16 July 2008, Dr Feiber believed the plaintiff was ready to return to work, noting he had earlier been certified unfit for work for depression from 29 November 2007.
188Until 14 September 2010, there were numerous attendances relating to the plaintiff’s mental health issues. It was then noted the plaintiff “has new job”.
189The next mention of relevant issues was on 16 May 2011, when the plaintiff had lost his job and “was feeling very depressed at the moment. Not coping very downhearted.” It was decided to double his dosage of Zoloft.
190This was the last mention in the clinical notes of mental health problems, other than for ongoing prescription of antidepressants until 17 March 2015, when it was noted “he was not depressed”. The previous month, he had stopped Cymbalta but it was prescribed again on 20 April 2015.
191On 6 May 2015, the plaintiff was described as “less depressed”. The next mention of any mental health issues was on 24 May 2016, when it was noted the plaintiff “had issues at work and home with health of wife and father”.
192Dr Feiber’s clinical notes end on 8 April 2019, at which time he noted the plaintiff was looking for part-time work and may end up on pension.
Dr Okalyi
193On 23 February 2010, Dr Feiber referred the plaintiff to psychiatrist, Dr Okalyi, for opinion on his depression, management and associated intermittent memory loss. The plaintiff was then taking 100 milligrams of Zoloft twice a day.
194In his March 2010 letter to Dr Feiber, Dr Okalyi noted that the plaintiff advised his problems started twenty years ago when his wife died of melanoma, he became bankrupt and lost his home. However, he had managed to care for his children and work until two years earlier. At that time, the plaintiff became increasingly withdrawn, avoided social contacts and just sat and got drunk. He described himself as being in a black void.
195Dr Okalyi advised that the plaintiff still felt useless and unemployable, particularly after being rejected from a huge number of jobs he had applied for. He suffered from disturbed sleep and was chronically tired. He had nightmares of rejection and intermittent brief episodes of depression “usually due to some situational problem, financial crisis of rejection from yet another job”. Although his second wife was supportive, he still had episodes of grieving for his first. His poor self-esteem was compounded by his diabetes, obesity and back problems.
196The plaintiff presented as an intelligent and co-operative man without evidence of serious childhood depression or psychosis.
197Dr Okalyi’s impression was that the plaintiff certainly had some chronic mild dysphoria, but situational factors were more prominent. He suspected that finding a job and earning money was more important for him than anything he could do.
198The plaintiff was actually quite positive at the interview because he was having several job interviews shortly. It was decided he would be reviewed once he had heard from these. Since Zoloft had not maintained its effectiveness, Dr Okalyi would consider other medication.
Mr Efremidis
199Mr Efremidis’ June 2016 letter to Dr Feiber is in very similar terms to his letter to the employer’s HR manager of 22 July 2016.
200Mr Efremidis also completed an Employee Assistance Program Final Feedback Form relating to the plaintiff’s last attendance on 9 September 2016 after two EAP sessions. He noted the plaintiff had then returned to work on a part-time basis and had greater clarity regarding his life goals and personal goals. There was a continued reduction in overall intensity of symptoms of depression, anxiety and stress.
Carfi Psychological
201Workplace rehabilitation consultant, Sarah Hellwege, from Carfi Occupational Rehabilitation Psychological Assessment Organisation provided a summary report after the plaintiff was assessed on 27 July 2016 for the purposes of his occupational rehabilitation needs aimed at facilitating a suitable return to work.
202It was noted the plaintiff was certified unfit to work by his general practitioner, Dr Feiber, until August 2016.
203On assessment, the plaintiff was significantly concerned about the impact of returning to his pre-injury role. It was recommended he would benefit from a graduated return to work undertaking modified duties for twenty hours a week over five days in the initial fortnight, with a gradual increase in hours until he achieved his pre-injury hours. Attempts would be made to place him in an alternative department than that of Treasury and Finance.
Other condition – diabetes
204In September 2006, Dr Brian Cohen from the Baker Institute reported to Dr Feiber that the plaintiff’s diabetes had been poorly controlled and that had been the case for several years. He also suggested the plaintiff have an assessment by a sleep physician, as he believed his problems may largely relate to sleep apnoea.
205In January 2011, the plaintiff was referred to Dr Steiner, ophthalmologist, for possible diabetic complications. On 30 May that year, he was referred to Ms Leonard for very poorly controlled diabetes.
206In September 2014, the plaintiff was referred back to the Baker Institute where he saw Dr Cohen after a six-year absence. Dr Cohen then reported the plaintiff’s diabetes was obviously very poorly controlled.
207Dr Mark Patrick, rheumatologist, wrote to the plaintiff’s general practitioner in February 2016 following referral for stiff and painful fingers. Dr Patrick thought the findings were in keeping with a diabetic cheiroarthropathy.
208In February 2017, the plaintiff was referred back to Dr Cohen for a review of his diabetes, having been last seen in August 2015. At that stage, Dr Cohen thought the plaintiff’s diabetes was poorly controlled, largely related to his weight.
Cardiac condition
209The plaintiff presented at Monash Hospital Emergency on 15 December 2014 with chest pain. He was prescribed analgesia and a chest x-ray undertaken. The “impression” at the time was “atypical chest pains in a gentleman with diabetes. Possibly hypertension”.
210On 9 January 2015, the plaintiff had a CT coronary angiogram at Monash Heart. It was concluded there was evidence of diffuse coronary artery disease with calcified and non-calcified atherosclerotic plaque in all epicardial vessels. There was moderate to severe proximal to mid LAD and MID LAD stenoses.
211Dr Ko, cardiologist from Monash Health, wrote to the plaintiff’s general practitioner in January 2015. He thought the angiogram findings were less impressive than the CT scan. In essence, there was only just mild to moderate LAD stenosis.
212Dr Ko’s overall impression was that perhaps the plaintiff was suffering from a resolving viral illness which was associated with an atypical distribution of myocardial damage, as well as residual pleuritic chest pains.
213On 19 February 2015, the plaintiff presented to Monash Hospital Emergency with abdominal pain. Following that attendance, Dr Ko wrote to Dr Feiber, advising he thought the plaintiff’s symptoms of haematuria were likely related to the small renal calculus. Recent investigations demonstrated no abnormalities to explain the plaintiff’s recurrent abdominal and chest discomfort.
214Dr Ko prescribed Endone in March 2015. He advised Dr Feiber in July 2015 that the plaintiff’s pains had markedly improved since commencement of Lyrica, slow release Tramadol and Cymbalta.
Medico-legal evidence
Dr Das
215Dr Hillol Das, psychiatrist, first examined the plaintiff on 6 September 2016 in relation to his claim for compensation.
216Under “Opinion and Diagnosis,” he noted the plaintiff had no relevant past or family history. He thought the described history and mental state examination findings were consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. Treatment had been undertaken and that condition was currently in a state of partial remission.
217The treatment so far was that the psychologist had been of help and must continue. The plaintiff had returned to work for reduced hours and modified duties and the plan was to gradually achieve full hours. If he could do the same work with a different department, then further treatment would not be required.
218On re-examination in April 2017, Dr Das noted the plaintiff had achieved full hours in October 2016 doing modified duties. He was offered another position that he accepted the following month but felt not adequately supported by his supervisors. He continued working through Christmas and on 31 December 2016, was informed the program was no longer available for him to have access to equipment such as an iPad. His job required him to undertake three hundred audits twice a year and that work became difficult to do without the tools he had used previously.
219In January 2017, the plaintiff was really struggling and felt pretty low when travelling to the country for work. He said he could not cope well with having to do more than two trips a day. He felt he was in the same place without the symptoms of the heart attack. He found himself in a big black tunnel and felt helpless, and at that stage, had been out of work for a month.
220On re-examination, the plaintiff had a markedly depressed affect, along with that of psychomotor retardation delayed reaction time. He was unshaven and could not maintain good eye contact. He sighed and looked away, a sense of despair was communicated and his thought content revolved around themes of worthlessness and helplessness.
221Dr Das then diagnosed Major Depression of moderate severity without any psychotic symptoms. The plaintiff did not have a present work capacity. His prognosis did not look as favourable anymore, his symptoms were far more pronounced and his functioning was now affected significantly. He had only recently re-engaged with the psychologist. His medication had to be optimised further. If his symptoms persisted to the same degree, he would be referred to a psychiatrist.
222Dr Das was asked for a supplementary report in May 2017, with the covering letter setting out he had been provided with the plaintiff’s clinical notes; however, Dr Das advised he did not receive any attachments and simply confirmed his earlier view.
223Dr Das re-examined the plaintiff on 9 March 2018. He then noted the plaintiff was retrenched from his job in February 2018, having not worked for the previous year.
224The plaintiff had seen a psychiatrist on a fortnightly basis and was on treatment with a new antidepressant, Escitalopram, 20 milligrams in the morning. He saw a psychologist once every three weeks. He was taking small steps setting himself tasks of working around the house and doing some work around the garden.
225On the current medication, the plaintiff felt more settled, less anxious and more inclined to think positively, however he found driving stressful and he found himself over vigilant. He enjoyed shopping and cooked regularly at home. His family life was stress free. His stepson, who had a psychosis, had moved out, and it was just the plaintiff and his family and his wife at home, and it was lovely.
226Dr Das thought the plaintiff then presented in a partially remitted condition of Major Depression. His current treatment was appropriate. There was no capacity for full pre-injury duties and hours, but a return to work remained the goal for a suitable part-time job.
227When asked what caused the plaintiff’s medical condition, Dr Das noted that the plaintiff worked in a full-time capacity in the Department and his problems appeared to have surfaced in the setting of a described workplace atmosphere where the relationship between the stakeholders was adversely affected and the plaintiff and the process felt unfairly criticised. He was shifted from one team to another, and his performance suffered, and he could not cope with the workload demand and the expectations placed on him. He became anxious and depressed and he ceased work in June 2016.
228The task was to find new part-time employment, maybe commensurate with the plaintiff’s current ability and skill base, as he had no capacity for full pre-injury duties. Dr Das noted the plaintiff expressed his interest in finding a suitable job around gardening and landscaping and design that is computerised and homebased, commensurate with his skills and area of interest. He thought the plaintiff could return to work once a new suitable job was able to be sourced and a review of his work capacity should be made in six to twelve months.
229The plaintiff was seen again in July 2020.
230Dr Das then noted the referral letter indicated the plaintiff had previous depression in 2007 requiring psychiatric treatment with antidepressants, health issues in 2015 and panic attack complaint in June 2016. He had returned to work in August that year, then had days off in 2017, and ceased work on 9 March 2017.
231Dr Das stated that the attached clinical records indicated that the plaintiff had antidiabetic treatment in 2001 and in 2007 commenced on antidepressant medication, Zoloft, for an impression of depression with no other details in the clinical records. Most of the running records indicated the plaintiff had continued treatment with antihypertensives, antidiabetic and anti-cholesterol medications and vitamins. He was again on antidepressant medication, Cymbalta, in 2011 which was also mentioned in 2017. In 2013 and 2015, he had treatment with pain medications, including Endone, Lyrica and Tramal. He had a history of two hip replacements about eight to ten years ago that coincided with the periods he was on pain medication and he had a shoulder replacement last year.
232In addition to 30 milligrams of Lexapro, the plaintiff’s other medications included aspirin, metoprolol, antidiabetic treatment, antihypertensive treatment and anti-cholesterol treatment.
233The plaintiff reported having started a business in September 2019 cleaning automotive parts, for which he rented a property, but he stopped after two or three months as he was not making any money. Also, he said he just could not go out dealing with people. He had difficulty doing the bookwork with his diminished level of concentration and just could not cope with the required demands.
234The plaintiff mentioned, about twelve years earlier, he was inundated at work and had a burnout and could not cope in that job that went for about five years, ending in 2008. He then had a job of selling cars, which was totally different, and did that for eighteen months. He was on Zoloft, during this period for symptoms of depression, including nervousness and feeling low, but he worked all along. The antidepressant was continued for a few years and later it changed to Cymbalta because he had gained weight.
235Dr Das noted the plaintiff’s problems at work, ceasing in June 2016. Around that time, the plaintiff was under Monash Heart for his pre-existing cardiac condition of irregular heartbeat. He had to go to hospital and have an angiogram and his heart was considered to be perfect. He then had holidays overseas then with his family and on his return, said he had shingles and was off work for a month. When he got back to work, his position was given away and he had to have a clearance from the doctor and cardiologist to return to work. He was offered a project and then “this woman came in”. He initially ceased in June 2016 and did return, but then he was retrenched.
[132][2016] VSCA 140 at paragraph [11]
286The High Court in this case specifically endorsed the difficulty in psychiatric cases drawing a “bright line” between injury, consequences and symptoms.[133] It was submitted, it was necessary for the Court to have more regard for the way that the psychiatric experts described the plaintiff’s condition, because it is an amalgam of all those things.[134]
[133]T156; Transport Accident Commission v Katanas [2017] HCA 32 at paragraph [29]
[134]T156
287In those circumstances, the description by examiners of the plaintiff’s condition being mild or moderate were particularly relevant, although it was ultimately a matter for the Court.
288Further, it was submitted that the mental state examinations do not support the plaintiff’s history of complaints.[135] His annoyance and concern about the accuracy of the medico-legal examinations, combined with his ability to assertively, fluidly and articulately answer questions and take on those examiners, tended against his account of his incapacity.[136]
[135]T124
[136]T125
289It was also submitted the plaintiff was an uncooperative and argumentative witness who repeatedly asserted in evidence that he was unable to remember matters which the defendant submitted was selective. Inexplicably, his memory appeared better in re-examination.
290In response, it was submitted this attack on the plaintiff’s credit “fell flat”, particularly in circumstances where he suffers from memory disturbance. Dr Lapidus noted that the plaintiff did not want to go to the 50th function,[137] and it was inaccurate to say he described his night there as “terrific”. He found the experience off-putting and uncomfortable, although he met old friends and did enjoy it. The fact is he has had nothing further to do with the Club since that date.[138]
[137] 3 September 2019 note
[138] T137
291I do not accept the criticism that the medical opinion supportive of the plaintiff should not be accepted because it was based on incorrect or understated histories – given my finding the plaintiff was functioning well in the years before injury, despite requiring ongoing anti-depressant medication.[139]
[139]T108
292I do accept, however, that the plaintiff was somewhat reluctant to acknowledge he was suffering from depression and being medicated in relation thereto in 2007.
293Further, I felt the plaintiff was somewhat overstating the level of his psychiatric disability at the present time in circumstances where he had ceased formal psychiatric treatment in December 2018, when he reported a significant improvement and Dr Dharmage was encouraging him to go back to work. Further, since then, there is no evidence of any deterioration in his mental condition, or any mention of any mental health issues when he sees his current treater at Rowville, whom he has been attending for nearly two years.
294Generally, I found the plaintiff is an intelligent man who had no difficulty understanding complex questions and answering clearly and appropriately, not exhibiting any noticeable problems with memory or concentration while in the witness box.
Aggravation
295In this case, where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the subject employment is severe and permanent.
296In Petkovski v Galletti,[140] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[140](Supra), followed in Filipowicz (supra). See also Pompei v Foster’s & Anor; Pompei v ExxonMobil Australia Pty Ltd [2019] VCC 1991
297Counsel for the defendant submitted any current permanent aggravation referable to the compensable injury falls well short of the “severe” threshold.[141]
[141] T107
298In response, counsel for the plaintiff submitted there was additional psychiatric impairment related to the subject work to a large degree, as evidenced by all the activities which the plaintiff had lost, and by reason of his ongoing symptoms, requiring ongoing psychological treatment of such a magnitude that the consequences, both in terms of symptoms and losses, were “severe”. His loss – apart from the ongoing symptoms, which continued to remain severe – was itself severe, with the plaintiff previously a very active man and quite skilled, and all that had been lost to him.[142]
[142] T153
What was the Plaintiff’s psychiatric condition immediately prior to the injury at work?
299Counsel for the defendant submitted there had been significant issues in late 2007 when Zoloft was first prescribed, and further mental health issues in 2010, following which there was a referral to a psychiatrist.
300The way in which the plaintiff described himself to Dr Okalyi in 2010 was relied upon – feelings of low self-worth, being useless et cetera. The plaintiff could not say that he had had those issues in 2010 and had treatment and then got better. He had just done nothing about it.[143] It was submitted that his feelings may have continued, but his symptoms reduced because he was working.[144] The plaintiff was not given proper treatment at the start for it to be accepted that he had recovered from the matters described in 2010, by the time of the compensable injury.[145] His condition was in remission when he last saw Dr Okalyi in December 2010.[146]
[143]T114
[144]T115
[145]T130
[146]T132
301Having been provided with the summary of the plaintiff’s earnings in the relevant period, counsel for the defendant submitted that the plaintiff had diminished capacity for many years and difficulties as soon as he started the Project at the Department. These records indicated that there were a variety of employers over the period, interspersed with some Newstart payments, albeit small. There was a diminished earning capacity in 2008-2013, until the plaintiff started the employer in about May 2014.[147]
[147] T134
302Counsel for the plaintiff submitted that the clinical notes showed that the plaintiff had pretty solid employment, with a few gaps with a little bit of Newstart. This was consistent with a man who was functioning very well, otherwise he would not be holding down employment and earning that type of income.[148]
[148]T135
303The “dysphoria” that Dr Okalyi described is a state of unease, that was all. He was supportive of the plaintiff getting further work, and there was nothing in his report that would indicate the plaintiff was suffering from any depression at all. In fact, it positively refutes it. Dr Okalyi also noted that the plaintiff presented as an intelligent and cooperative man without evidence of serious clinical depression or psychosis.
304It was submitted the absence of psychiatric complaints in the general practitioner’s notes from 2007-2011 was not indicative of a continuity of reported significant psychiatric problems, as counsel for the defendant submitted, but simply the ongoing prescription of Cymbalta.[149] The entries in 2013, 2014 and up to February 2015 only had a reference to the prescription of Cymbalta, but did not have any mental health references.[150]
[149]T108
[150] T58
305Dr Feiber’s records from 3 November 2011 until 24 March 2016 contain not one scintilla of evidence or the remotest suggestion that the plaintiff was suffering from any ongoing psychological symptoms of depression, when, for the most part, he was prescribed one anti-depressant or another.[151] He was working, and was participating fully in all the activities he described, up until the time he suffered this injury.[152]
[151] T161
[152]T146
306Counsel for the defendant ultimately conceded it was fair to say there was an absence of any reference to mental health issues, save for prescription of Cymbalta, in that period of time.[153]
[153] T59
307Despite the ongoing prescription of anti-depressant medication for nearly four years prior to the work injury, from 2012 the plaintiff was able to work full time in a responsible public service job with the employer, not requiring time off work or any modification of his duties on psychiatric grounds.
308I do not accept this was a case of an untreated ongoing mental problem as at the date of the work injury. There is simply no medical evidence this was the situation and it is pure speculation.[154]
[154] T52
309The plaintiff’s work history was interrupted at various times leading up to 2012, whether due to mental health issues or inability to get work, as evidenced by taxation details which give some certainty to an otherwise confusing picture of his work history from 2007 to 2012.
310However, in the four years before the work injury, the plaintiff was working full time, taking anti-depressant medication and enjoying a range of activities including cars, gardening, cooking and social interaction.
Symptoms/complaints
311The plaintiff describes ongoing feelings of low self-worth, lack of motivation, difficulty getting the energy to go out, problems with social and family interaction and at times suicidal thoughts. He feels tearful and low. Counsel for the plaintiff described this as a severe psychiatric condition.[155]
[155] T155
312Counsel for the defendant submitted that examination findings of the plaintiff’s treater, Dr Dharmage, and later medico-legal examiners were not of this level of symptoms.[156]
[156]T124
Treatment – what the Plaintiff does about his injury
313Treatment is not the only criteria which should be looked at when considering the severity of a psychiatric condition – all the relevant circumstances to the plaintiff should be considered.[157]
[157]Katanas v Transport Accident Commission (supra)
314However, in this case, psychiatric treatment has not been significant and has been relatively short lived – ceasing over two years ago. Counselling has, however, continued, as has the prescription of anti-depressant medication which has been prescribed since 2007.
315Treatment post injury has consisted of treatment by general practitioner, Dr Feiber, until April 2019, ongoing psychological counselling from Dr Lapidus since 2017, referral to psychiatrist, Dr Dharmage, who saw the plaintiff from 2017 to December 2018, and continuing prescription of anti-depressant medication by his current general practitioner who has never seen the plaintiff for mental health issues.
316There is a paucity of evidence from any treater as to the plaintiff’s current psychiatric condition and prognosis.[158] The only treater, psychologist, Dr Lapidus, last reported a year ago.
[158]T110
317The last note of a general practitioner attendance was in April 2019 when Dr Feiber noted the plaintiff was looking for part-time work. The only correspondence from Dr Feiber was his letter referring the plaintiff to Dr Lapidus in February 2017. There is no subsequent report from this long-term treater, who would have been in the best position to comment on the plaintiff’s psychiatric condition pre and post work injury. In my view, the notes do not speak for themselves and the Court would have been assisted by a detailed report addressing all the relevant matters.
318Since 2019, the plaintiff has been seen at the Rowville Clinic. He admits he has not attended that clinic for any mental health issues and simply attends for his ongoing prescriptions of Cymbalta.[159] There is no report from that clinic.
[159]T110
319When Dr Dharmage last saw the plaintiff in December 2018, after eighteen months’ treatment, the plaintiff reported significant improvement. Dr Dharmage also noted the plaintiff failed to attend three appointments later that year and he discharged the plaintiff from his care. There has been no further psychiatric treatment following this discharge.
320Dr Dharmage’s available reports are very brief and provide no analysis of the plaintiff’s condition or prognosis. Further, he was unaware of the plaintiff’s pre-injury psychiatric condition. When last seen in December 2018, the plaintiff reported significant improvement. There is no explanation why the plaintiff then failed to attend three appointments and has not sought further specialist referral.
321I cannot be satisfied on this limited available material from the plaintiff’s treaters as to the current level of the plaintiff’s current psychiatric condition and his prognosis. Further, in the absence of any explanation why up to date reports were not obtained from these treaters, it is open to infer that such evidence would not have assisted the plaintiff’s case.[160] In those circumstances I can more readily accept the plaintiff’s condition had improved considerably as at the end of 2018 when he was being encouraged to explore work and that there had not been a significant deterioration hereafter.
[160] O’Donnell v Reichard [1975] VR 916
322Further, while Dr Hacker was supportive of the plaintiff’s claim, she did not comment on Dr Dharmage’s optimistic assessment of the plaintiff in late 2018 when he encouraged the plaintiff to seek work – a view that differed markedly from her assessment of the plaintiff.
Employment consequences
323Counsel for the plaintiff submitted as a consequence of his psychiatric injury, the plaintiff is unable to engage in any employment, and has lost the pleasure and satisfaction of work. He would have continued to work had he not been injured. He is only sixty-seven, and “plenty of people work beyond then”.[161]
[161]T142
324Further, the business failed because of the plaintiff’s metal health issues – “It wasn’t as though he was setting up BHP.” His inability to continue with it lay squarely with the effect of the injury on his ability to organise, to think, to work out, to create, and then to do what was necessary, which exposed him to the public, as he described in re-examination.[162]
[162]T140
325The plaintiff was only able to recoup $18,000 of the $50,000 spent on setting up the business. It was a big event for him. He just could not do the spruiking. As he said, he made a mistake. He knew it from the day he walked in.[163]
[163]T140
326In terms of any claimed work consequences, counsel for the defendant submitted the plaintiff is now beyond retirement age and he is in receipt of an aged pension. He deposed to being retired and making no claim for loss of income. He considers himself retired. Even if he did have a work incapacity because of a compensable injury, that is irrelevant, because he decided to retire. There was no evidence from an occupational physician as to any incapacity for work.[164]
[164]T128
327In any event, Dr Das thought that the plaintiff had a capacity for suitable employment and when last seen by treating psychiatrist, Dr Dharmage, in December 2018, he thought it was for the plaintiff to get back to some sort of work, if that was what he wanted to do.[165]
[165]T129
328Clearly, the plaintiff made no claim for economic loss in his Form A. In his first affidavit, when aged sixty-five, he described himself as beyond retirement age and specifically stated he made no claim for loss of earnings or loss of earning capacity.
329In his second affidavit, he mentioned he set up the business because he knew he could never return to office work and that the business quickly failed because of his mental health difficulties.
330In the course of his viva voce evidence, the plaintiff explained that he was in “forced retirement” because he would be working now had he not had a problem with his previous employer and the problems he now has with his mental health.[166] His intention at the time he suffered injury was to be still working now because he would be working towards a proper retirement.[167]
[166]T23
[167]T98
331While interference with his usual occupation working in the public service is relevant to assessing pain and suffering consequences,[168] I am not satisfied that the plaintiff would have continued working with the employer beyond retirement age given the discrepancy between his affidavits and his very brief viva voce evidence in this regard.
[168]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35] and Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]
332Although she thought the plaintiff had no suitability for employment, Dr Lapidus commented in 2019 that the time span for getting the plaintiff back to work was irrelevant as he was then sixty-five.
333While Dr Hacker thought the plaintiff has no capacity for his pre-injury job, I do not accept he would have continued to work in that role post retirement age of sixty-five. In those circumstances, he has not established an ongoing loss in that regard as at the date of hearing and operating into the future. Further, treating psychiatrist, Dr Dharmage, thought the plaintiff had a capacity for suitable employment when last seen in December 2018. His opinion has not been sought after that date.
334The plaintiff also claims his inability to continue his business was also as a consequence of his mental health issues. The business operated only for a matter of weeks towards the end of 2019, having only one client, Hugh from the Car club.
335There is no evidence from any treater of any mental health problems the plaintiff had in setting up and operating the business. He had not seen Dr Dharmage since December 2018, when he discussed engaging in a business of his own when the Workcover process was completed. The last note of an attendance with Dr Feiber in April 2019 set out the plaintiff was looking for part-time work. The plaintiff has not attended any medical practitioner for mental health issues since that time.
336While Dr Lapidus thought, in April last year, the plaintiff had no suitability for returning to the workforce, she simply noted that “a more recent attempt to work with the repair of machinery did not get off the ground”. There was no detail in her report of any particular difficulties in this regard. There was no mention of the significant problems the plaintiff described in re-examination.
337Further, there is no evidence from “Hugh” or any other person as to any difficulties the plaintiff was experiencing in running the business for such a short time and having to cease trading due to health issues. In the unexplained absence of any evidence from “Hugh”, it can be inferred his evidence would not have assisted the plaintiff.
338Medico-legal opinion in this regard is also limited. When first seen by Dr Hacker, the plaintiff told her that he ceased work in February 2017 and was made redundant in January 2018. He advised that he first applied for the age pension in April 2018 and then again after he ceased trading in the business in October 2019. There is no mention of the business in her recent report.
339In July 2020, the plaintiff told Professor Doherty that he went to alternative work, his own business. He could not go out and sell it to people. He was unsure of himself and afraid of rejection.
340When seen in July 2020, the plaintiff told Dr Das he ceased trading after two to three months as he was not making any money. He could not go out dealing with people, had difficulty with book work due to his diminished concentration and could not cope with the demands of what he thought he could do. His recent attempt at alternative work did not succeed. He described the plaintiff as into a state of retirement and perhaps not as motivated for a sustained attempt to reengage in any particular vocational activity.
341In the absence of corroborating contemporaneous evidence, lay or medical, while the plaintiff may have experienced some problems operating the business through his lack of experience and contacts, I am not satisfied he ceased trading, at such an early stage, for mental health issues, particularly when he was able to set up the business himself – arranging a lease, sourcing equipment et cetera, and was encouraged to do so by his treating psychiatrist when last seen in late 2018.
Hobbies
342Counsel for the plaintiff submitted the Car club was the passion of the plaintiff’s life. He was its president for three years, although not in the period leading up to the subject injury. There was a measure of his involvement, plus the fact he drove five times a year and went on road trips in the vehicle he built himself, and attended club meetings and dinners.
343It was submitted the defendant had understated the loss occasioned by the plaintiff’s inability to continue with this hobby, which is an enormous loss, which, in itself, it was submitted, would satisfy the consequences of being “severe”. It was thirty years of the plaintiff’s life gone, and he had much more to contribute to the activity and his passion, like building a second vehicle, which he still had on the trailer at home and had not even started.[169] The retained ability to drive locally does not compare.[170]
[169]T139
[170] T132
344Counsel for the defendant relied on Dr Lapidus’ notes of the plaintiff doing work on his car and his attendance at the Club’s 50th dinner[171] as evidence of his ongoing involvement with cars and the Club. It was submitted that the plaintiff’s evidence of his Club involvement at its highest was not sufficient to put him into a severe category in relation to his psychiatric injury.[172]
[171]T115
[172]T133
345In my view, the subject work injury has significantly impacted on the plaintiff’s car-related activities. While his administrative role had long ceased before the injury, he was still actively involved in this hobby, competing/racing and working on his car and attending weekend trips at the time of the subject injury. Since then, his participation has been minimal, at most working on the car a couple of times, as Dr Lapidus recorded and the plaintiff denies.
346While the plaintiff is still able to do the cooking, as counsel for the plaintiff submitted, the ability to cook snacks is a very different situation to the plaintiff’s cooking pre injury, when he was an accomplished chef enjoying cooking and participating in that activity regularly.[173]
[173]T139
347Further, the plaintiff has gone from tending a 200-square metre garden to sometimes working on 2 ten square metre plots which he has not propagated for a couple of years – a significant consequence to a man who was passionately involved in that activity.[174]
[174]T139
348While the plaintiff claimed significant problems with social interaction and family relationships, he still sees most of his family at his home. He plays some role in the domestic chores, acknowledging that these had generally been his wife’s domain and their cleaner pre injury in any event.
349There was no affidavit from the plaintiff’s wife corroborating his evidence. An affidavit from his daughter-in-law was a strange choice, as counsel for the defendant noted.[175]
[175]T116
350The plaintiff still takes care of his own personal care – such as shaving, dressing and showering, albeit with diminished frequency.
Other health/personal issues
351In Peak Engineering & Anor v McKenzie,[176] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[176]Supra
352In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[177]
[177]At paragraph [1]
353The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b) when the consequences properly referable to the compensable injury were identified, identified them as “serious”.[178]
[178]At paragraph [2]
354Counsel for the defendant submitted that plaintiff sought to minimise his other health conditions, with poorly controlled diabetes for years, his son’s significant drug problem, his sleep issues, problems with his heart, his complete shoulder replacement, and his feet.[179] His evidence as to the minor nature of his comorbidities should not be accepted unless corroborated or against his interests.[180]
[179]T123
[180]T126
355Mr Efrimidis’ 2016 psychological report sets out a number of stressors in the background of the claim. It was submitted that any aggravation must be considered in that context.[181] That report is a good guide to the comorbidities at that time- ones that the plaintiff has tried to play down.[182] It was also submitted Dr Hacker did not have a full history of comorbidities.[183]
[181]T127
[182] T121
[183] T125
356Counsel for the plaintiff submitted the defendant’s position as to the effect of comorbidities was in defiance of the plaintiff’s evidence. There were seven referred to that the plaintiff refutes.[184]
[184]T142
357First, the evidence is that while the plaintiff had a total shoulder replacement in June 2019, he has no shoulder pain.
358There is no evidence he has any cardiac condition at all. He was admitted to hospital and investigated, and the diagnosis was that of a panic attack. There was no evidence at all of any ongoing cardiac-based symptoms or any concerns in respect of the plaintiff’s cardiac status. The plaintiff certainly believed that.[185]
[185]T144
359His diabetes has been in existence for probably twenty years. He has lived with it, worked with it, and participated in all his recreational activities with it. It is not of concern to him to the extent that it has had an impact on his psychological disposition. There is no evidence that he is suffering from any serious symptoms associated with the diabetes.[186]
[186]T144
360There is no medical evidence of any ongoing role played in the plaintiff’s cognitive difficulties by his diabetes or heart condition, and that was what Dr Hacker took up in her report.[187]
[187]T149
361The plaintiff did lose his stepfather, and still grieves, but there is no evidence of an ongoing contribution in relation to that issue, and the plaintiff denies it. It is the same situation with his mother-in‑law, who died last year. Both were in very poor health, and elderly.[188]
[188]T143
362While the plaintiff’s son, David, certainly had drug issues and was discussed by the plaintiff with Dr Lapidus, the plaintiff has taken a matter-of-fact attitude to it. His son is a forty-year-old adult. “He has made his bed and he can lie in it.”[189]
[189]T143
363It was submitted that the defendant’s counsel was “grasping at straws” when she tried to submit that the plaintiff’s wife being bullied at work made any contribution towards his condition, and the plaintiff flatly rejected it – on a logical basis.[190]
[190]T144
364Further, it was submitted Professor Doherty and Dr Das placed an unjustified emphasis on non-mental-health issues and placed too much emphasis on the plaintiff’s relatively asymptomatic condition before the incident, in circumstances where he was functioning well, working full time, enjoying a range of activity, and simply taking ongoing anti-depressant medication without the need for more active treatment or reporting any ongoing complaints to his general practitioner.[191]
[191]T145
365I accept this criticism of the medico-legal opinion relied on by the defendant in this regard. The plaintiff was able to function well at work with poorly controlled diabetes. His heart issues while of some concern, required investigation but no significant abnormalities were revealed thereafter. Shoulder surgery was successful and the plaintiff does not have ongoing significant shoulder problems. Although David’s drug issues have concerned the plaintiff and been subject of counselling, he is resigned to his son’s situation at the mature age of forty when he is able to look after himself. There is no evidence that there was anything other than the normal grieving process when the plaintiff’s aged, sick relatives died. He has had the normal response to his wife’s issues at work.
366I am satisfied that these comorbidities now play a small role, and that the focus and main cause of the plaintiff’s current psychiatric condition are still work-related issues.
367However, taking into account all the evidence, I am not satisfied any aggravation of the plaintiff’s psychiatric condition as a result of the subject injury meets the high threshold of “severe”.
368Mental health problems do continue to be related to the subject work and are treated by counselling only and the ongoing prescription of anti-depressant medication that commenced eighteen years ago.
369There had been some improvement in the plaintiff’s condition, as Dr Dharmage noted at the end of 2018, and no worsening has been reported to any medical treater since then, and no psychiatric treatment has not been sought.
370Mental health issues may have played a role in the short duration of the plaintiff’s business but there is no corroborative evidence in this regard from lay or medical witnesses who saw the plaintiff in late 2019. There are no other employment consequences as I am not satisfied the plaintiff intended to work for the employer beyond sixty-five, particularly when he described himself in his affidavit as beyond retirement age when aged sixty-five in September 2019.
371The main consequence for the plaintiff of his mental health issues is the interference with his ability to enjoy his hobbies, in particular, his passion car racing. However, while these consequences may be serious, when considered in combination with the level of ongoing treatment and difficulties the plaintiff may have in his domestic and personal life, they do not meet the high threshold required for a severe aggravation.
372Accordingly, the application is dismissed.
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