Gorgievski v BTI Pty Ltd (Skybus)
[2018] VCC 2115
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01783
| AMENDO GORGIEVSKI | Plaintiff |
| v | |
| BTI PTY LTD (SKYBUS) and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2018 | |
DATE OF JUDGMENT: | 18 December 2018 | |
CASE MAY BE CITED AS: | Gorgievski v BTI Pty Ltd (SKYBUS) & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2115 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages and pecuniary loss damages – reliance upon paragraph (c) of the definition – alleged workplace bullying – issue of whether plaintiff’s condition was in fact a relapse or recurrence of bipolar disorder – essentially the only issue is the question of causation – conflicting medical opinions – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis QC with Mr N Horner | John Dellios & Associates Pty Ltd |
| For the Defendants | Mr A Clements QC with Mr B McKenzie | Thompson Geer |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, he relies upon paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act.
2 Essentially, the plaintiff is asserting that his underlying psychiatric condition, which includes such features as conversion disorder, pain disorder, bipolar affective disorder and depression, was impacted upon by stress arising from his work and, particularly, from bullying – see, for example, Transcript (hereinafter referred to as “T”) 4 and following pages. The above shall hereinafter be referred to as “the injury”. The injury is alleged to have been caused by pressures, including bullying, imposed upon the plaintiff during the course of his employment with the first defendant, BTI Pty Ltd (SKYBUS), hereinafter referred to as “BTI”. The duties which the plaintiff was performing shall be referred to as “the work”. The injury is said to have occurred throughout the course of the plaintiff performing the work between 2007 and 4 March 2014 and particularly during the latter stages of that employment.
3 Mr G Lewis QC with Mr N Horner of counsel appeared on behalf of the plaintiff. Mr A Clements QC with Mr B McKenzie of counsel appeared on behalf of the defendants, whose interests overlap entirely. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
4 It was said by Mr Lewis at the outset that this is a causation case and, if the determination of causation is in favour of the plaintiff, it is quite plain that the consequences satisfy the narrative test of “severe”, as contained in paragraph (c) of the definition, and he doubted if there would be any contest concerning that. That this was the case was effectively confirmed by Mr Clements in his brief opening address. I would refer to T20. Mr Clements also stated that, if the opinion of Associate Professor Doherty, who had examined the plaintiff at the request of the defendants, was not accepted, it would be very difficult for the defendants to resist the application.
5 Essentially, if the opinion of Associate Professor Doherty – that the plaintiff’s employment with BTI was not a significant contributing factor to the relapse and/or recurrence of the plaintiff’s bipolar disorder – was not accepted, it was agreed that the consequences of the recurrence meet the appropriate test of severity both in relation to pain and suffering and to pecuniary loss. I would refer to T20 and 21.
6 It was also pointed out that the issue of whether or not the plaintiff was bullied or harassed at work was not an issue to be determined at a hearing of this type, as it would involve lengthy evidence in relation to a series of allegations and as to whether or not bullying in fact occurred. I thank and congratulate the parties for the very sensible approach that was adopted in relation to the disposition of this matter.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
7 The plaintiff is aged 66 years, he having been born in 1952 in Macedonia. Given the manner in which the issues have been defined and narrowed, there is no need for me to go into details of the plaintiff’s upbringing and education. Suffice to say that he migrated to Australia in 1970 and that he is a married man with three adult children and a number of grandchildren. He has been employed in this State in various occupations, such as a machine operator, tyre maker, boner/slicer and the like.
8 When working as a meat slicer, the plaintiff suffered a right elbow injury which incapacitated him for quite a lengthy period. In addition, the plaintiff suffered from increasing depression. There was also a psychotic episode or episodes, as shall be discussed shortly.
9 After his initial psychotic episodes and other mental problems, the plaintiff worked performing tiling work for his brother-in-law, who ran a business in relation to that activity. He commenced work with BTI on 27 April 2007 as a cleaner and detailer of minibuses. He was originally a sub-contractor, before commencing as a permanent full-time employee on 11 April 2011. He alleges that his problems effectively commenced or re-emerged when there was a change in relation to his manager in early 2012.
10 Due to the agreement which has been reached in relation to the conduct of this matter, I need not go into details of the alleged bullying or work pressures to which the plaintiff was subject. It would seem that the last working day of the plaintiff with BTI was 4 March 2014.
(b) The plaintiff as a witness
11 Given the way in which the issues have been isolated in this case, there is no need for me to express any opinion concerning the credibility of the plaintiff. Suffice to say that I have no reason to disbelieve his evidence.
(c) The state of the plaintiff’s health prior to the injury
12 The plaintiff had suffered an injury to his right elbow when working as a boner and slicer between November 1985 and March 1987. He was then absent from work for a lengthy period and suffered from increasing depression. He was treated by a general practitioner, Dr Korman; a psychiatrist, Dr Horgan; and a clinical psychologist, Ms Wilkinson. For the purposes of a second psychiatric opinion, he also saw Professor Burrows. That was in February 1998. In or about May 1998, the plaintiff suffered a psychotic episode and was admitted to the Sunshine Hospital as an involuntary patient. Between 8 August 2001 and 30 August 2001, he was an inpatient at the Austin Hospital, apparently the diagnosis being one of a conversion disorder, pain disorder or bipolar affective disorder. There is also reference in the material to him being an inpatient at approximately that time in the Austin Eating Disorder Unit. He continued under the care of Professor Burrows and took medication. This enabled him to return to work performing tiling duties for his brother-in-law in approximately 2002. He has sworn that his medication started to reduce in late 2003 and ceased altogether in April 2004. That was the last occasion on which the plaintiff saw Professor Burrows in respect of his mental health problems. In February 2005, Dr Umit Cenap became the plaintiff’s treating general practitioner and he continues so to be. I would add that the nature of the episodes suffered by the plaintiff and the hospitalisation which resulted will be the subject of further discussion in this judgment.
(d) The injury, its treatment and diagnosis
13 As stated, these are matters central to the outcome of this application.
14 Several reports and a completed questionnaire of Dr Cenap have been placed in evidence. His report of 2 December 2015 includes a history of treatment up to that point in time. Whilst it records that the plaintiff had been attending the particular clinic since February 2005, it effectively starts as at an attendance on 5 March 2014. The plaintiff attended upon the clinic that day with stress. He was crying and feeling depressed, allegedly due to workplace bullying. He attended again the next day, when he was no better, and, accordingly, Dr Cenap prescribed Valium and Mogadon for him, diagnosing stress, anxiety, insomnia and depression. After a couple of months, the plaintiff also started taking anti-depressants, but his symptoms continued.
15 On 27 May 2014, the plaintiff was referred to Dr Samir Ibrahim, psychiatrist, and also to a psychologist. I shall return to their reports. In the medical history taken, Dr Cenap referred to the plaintiff having had depression approximately 18 years previously, which was treated for “a year or so”, and stated that the plaintiff did not have any issues after that until 5 March 2014. Dr Cenap’s ultimate diagnosis was of severe adjustment disorder with anxiety, stress, insomnia and major depression. He also recorded that, in June 2015, the plaintiff developed a psychotic episode with bipolar affective disorder, requiring hospital admission. Dr Cenap referred to the plaintiff’s medical regime of Olanzapine, Lithium and Zacloperthixol and also to the need for the plaintiff to be reviewed regularly by a psychiatrist. He considered that the plaintiff could never return to any kind of suitable employment but, as stated, whilst it may have some marginal relevance, matters of employability are not central to the present dispute.
16 Dr Cenap also answered a questionnaire, which has the appearance of emanating from BTI or its insurer. The handwritten answers are a little difficult to read and the document is dated 19 May 2014. This document contains references to the plaintiff being anxious and stressed and to certain occurrences at his place of employment. There is also reference to a diagnosis of an adjustment disorder, depression, anxiety and insomnia. Effectively, it takes matters no further than the written report of 2 December 2015, which has been summarised above.
17 As stated, it is apparent that Dr Cenap referred the plaintiff to Dr Samir Ibrahim, senior consultant psychiatrist, who reported back on 25 September 2014. In that letter, Dr Ibrahim took a history of the stressful environment at BTI and of interpersonal problems and the like. Dr Ibrahim obtained a history of depression in relation to a work-related injury some 20 years previously and of an admission to Sunshine Mental Ward for a week some 15 years ago.
18 On 30 November 2015, Dr Ibrahim provided a medical report, which has the appearance of one forwarded to either the plaintiff’s solicitors or to the Accident Compensation Conciliation Service, although the actual addressee is not shown. He reported that he had seen the plaintiff on only one occasion, this being in September 2014. Dr Ibrahim obtained a history of the plaintiff having depression after his right arm injury some 20 years previously. He also noted that there had been an admission to Sunshine Psychiatric Hospital for a week, some 15 years previously. The plaintiff also stated that he was treated for about five years. The plaintiff gave an account of occurrences at BTI, resulting in his cessation of work.
19 Dr Ibrahim noted the diagnosis of Dr Cenap and the fact that the plaintiff had been prescribed an anti-depressant, a tranquiliser and sleeping medication. Dr Ibrahim advised the plaintiff to continue with the medication and also referred him to Ms Paula Teggelove, psychologist. As Dr Ibrahim had not seen the plaintiff since, he had no information concerning progress, medication, work capacity and the like. Based on the solitary meeting, Dr Ibrahim was of the view that the plaintiff’s symptoms could be viewed as those of an adjustment disorder. He implicated employment.
20 Ms Teggelove reported to the Accident Compensation Conciliation Service on a date which is not entirely clear, but was probably in February 2015. Ms Teggelove took a detailed history. She also noted such things as the plaintiff reporting very high levels of anxiety, shortness of breath, mood swings, difficulties with concentrating, an inability to stop ruminating on the events that had occurred, sleep difficulties and similar problems. She was of the opinion that the plaintiff’s presentation and symptoms met the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood. Ms Teggelove expressed the view that this condition was directly related to workplace events over a period of time. She regarded the plaintiff as being incapacitated for work and stated that such incapacity was directly related to his psychological condition, which, in turn, had resulted from the prolonged period of stress at work. She advised ongoing psychological treatment.
21 Put before me was a page of progress notes from Western Health. It is dated 5 July 2015. The plaintiff had recently changed medication to Escitalopram, which I understand to be a medication mainly used to treat a major depressive disorder or generalised anxiety disorder. The relevant person at Western Health seems to have accessed a state-wide database which indicated that the plaintiff was known on CMI (presumably Consumer Medicines Information), but the latest activity appears to have been in August 2001. There is a reference to psychosocial stress relating to workplace bullying and the like. In these notes, there are a considerable number of acronyms and it is a document which is not completely easy to interpret.
22 Also put before me were some documents from NorthWestern Mental Health. These include an assessment undertaken on 6 July 2015, after the plaintiff had been found in the street kicking in the side mirrors of cars and attempting to hit people with his belt. He was described as being in a psychosocial crisis relating to workplace bullying and his claim being rejected. Again, there are a number of acronyms. The initial page of this document reads as being very similar to the progress notes from Western Health. It is noted that contact with the plaintiff’s wife resulted in obtaining information to the effect that the plaintiff was extremely stressed and that she had noticed some paranoid references.
23 This assessment by NorthWestern Mental Health contains a lot of questions to be answered either with a “yes” or a “no”. In addition, when interviewed, the plaintiff referred to people who had wanted to follow him in the street, including an old man with a dog. The plaintiff apparently struck this man with his belt. The impression given was of paranoid themes, including references to cars and trucks constantly driving back and forth along the stretch of road he had been walking on that day. The plaintiff was thought to have low level paranoia and to have impaired judgment when he was emotionally aroused. The plaintiff seems to have been admitted on the basis of having a psychosocial crisis. When interviewed and assessed, it is clear that he was rambling about all sorts of matters, claiming that he had been chosen by God and making various other peculiar assertions. A physical examination of him was unable to be completed because of his level of agitation and unpredictability.
24 It is said elsewhere in the numerous pages from NorthWestern Mental Health that the plaintiff’s presentation was consistent with a manic and psychotic relapse of his illness. The background context was described as relating to perceived injustice regarding unresolved workplace bullying claims. The provisional diagnosis was of manic and psychotic relapse and BPAD, which I understand to be an acronym for bipolar affective disorder.
25 There is a discharge summary of 7 August 2015. In it, it is stated that the plaintiff made a very slow recovery, but eventually displayed notable improvement in relation to mood, sleep and the like. He became much more settled and was able to hold regular conversations. He was described as being extremely unwell at the beginning of his admission and requiring high dose antipsychotic medication and periods in seclusion. There is reference to him being placed on a 26 week inpatient treatment order.
26 Also placed in evidence was a letter from Associate Professor Ruth Vine, Executive Director of NorthWestern Mental Health. Amongst other things, she referred to the plaintiff as having presented with a severe manic psychosis, also noting that he had previously experienced both manic and depressive episodes. In the present instance, the diagnosis attributed to him was of bipolar affective disorder, requiring treatment in the intensive care area for some days. Following discharge, he was to be followed-up as a compulsory patient. The history of workplace bullying was determined to be an additional stressor, rather than the cause of his psychotic illness. The treatment for the lowered mood resulting from this bullying may have precipitated this particular episode. Upon discharge, he was prescribed Lithium, which is a mood stabiliser, along with two antipsychotic medications. It was noted that he would require ongoing treatment.
27 Due to the somewhat unusual nature of this case and the specific area of dispute, I have gone into the plaintiff’s treatment in greater detail than might otherwise have been required. In any event, I turn now to medico-legal opinions.
28 Dr Muhamed Nathar, consultant psychiatrist, has seen the plaintiff at the request of his solicitors. His initial report is dated 2 September 2015. The history of the presenting illness included much detail concerning the plaintiff’s employment with BTI and the alleged bullying. Dr Nathar also took a history of the period of hospitalisation and the treatment and medication which the plaintiff was receiving.
29 Dr Nathar diagnosed a major depressive disorder for over a year in the course of the relevant employment, culminating in a major psychiatric decompensation in late June and early July 2015, this involving hospitalisation for three weeks and as described above. He noted that there was some amnesia and referred to a possible alternative diagnosis of a major depressive disorder with psychotic symptoms or, thirdly, a diagnosis of bipolar disorder. However, at that stage, Dr Nathar did not have available concrete evidence in relation to the last-mentioned alternative possibilities. Accepting the plaintiff’s history, Dr Nathar felt that there would have been sufficient work stress to have caused him to have psychiatric decompensation of a very serious nature. He regarded the plaintiff as totally incapacitated.
30 Dr Nathar reported again on 27 November 2015. It is apparent that he did not see the plaintiff again, but had been provided with a number of medical reports, in relation to which he was asked to comment. Having commented upon each report, the ultimate conclusion reached by Dr Nathar was that he was not changing any of the opinions and conclusions expressed in his earlier report.
31 Dr Nathar reported again on 13 April 2016, having been forwarded further material, including the report from Associate Professor Ruth Vine. Dr Nathar expressed the opinion that the plaintiff seemed to have an underlying bipolar affective disorder with clear episodes on two occasions, many years apart. He seemed to have been functioning well in between these episodes. Dr Nathar described bipolar affective disorder as a constitutional illness. However, he was of the opinion that psychosocial stressors can precipitate an episode of mania, depression or psychosis. The workplace stressors over a period of time could be considered as probably of sufficient significance to have caused initially an adjustment disorder with anxiety and depression. Subsequently, due to the plaintiff’s vulnerability, the adjustment disorder then precipitated another occurrence of a depression as a manifestation of his bipolar affective disorder. This then became characterised by manic and psychotic features.
32 Dr Nathar considered it also possible that, as stated by Associate Professor Vine, the anti-depressant medication prescribed for the plaintiff’s anxiety and depression precipitated the manic episode. Dr Nathar regarded this as a common occurrence and, if that be so in this case, there was a direct link between the work stress, the depression, the prescribing of the anti-depressant and the precipitating of the very severe recurrence of the manic episode.
33 Dr Nathar did not believe that a diagnosis of borderline personality disorder was appropriate. He did not agree with Dr Dush Shan, psychiatrist, who examined the plaintiff on behalf of the defendants, that the work-related stressors simply precipitated a mild depression. Dr Nathar also rejected the theory that the recurrence of the bipolar affective disorder was spontaneous and occurring in the natural pattern of the illness. Therefore, essentially, the views expressed by him in his initial report did not alter.
34 Dr David Weissman, consultant psychiatrist, provided a report dated 9 July 2018 to the plaintiff’s solicitors. He had been supplied with a large number of statements, medical reports and the like, but his report pre-dates that of Associate Professor Doherty, and thus contains no comment concerning it. Dr Weissman considered this to be a complex case. He noted the plaintiff’s severe past psychiatric history, but also the complete remission which had occurred. He regarded the plaintiff as being a person with significant and strong premorbid psychological and emotional vulnerability factors.
35 Dr Weissman expressed the view that the plaintiff had suffered a psychiatric reaction to the work-related stress and initially developed an acute adjustment disorder and stress disorder, which evolved into a chronic adjustment disorder with traumatisation features. Due to the severity and extent of his symptomatic distress, his chronic adjustment disorder with traumatisation features evolved into a chronic major depressive disorder with anxiety and traumatisation features, punctuated by a mixed affective psychotic syndrome. Dr Weissman regarded the recurrence as being aggravated or contributed to by the plaintiff’s employment.
36 Dr Weissman’s ultimate diagnosis was of a chronic major depressive disorder, with agitation and traumatisation features, of at least moderate intensity or severity, relevant to the plaintiff’s employment. He thought that the plaintiff’s condition had stabilised and that he was totally and permanently incapacitated for all work for the foreseeable future. The plaintiff’s prognosis was uncertain, guarded and likely to be relatively poor, negative and unfavourable.
37 The defendants have also had the plaintiff examined for medico-legal purposes. As the argument in this case is centred upon the opinion of Associate Professor Doherty (indeed, at T34, Mr Clements referred to the defendants having “really all our eggs in the Associate Professor Doherty basket in this case”), I shall deal only briefly with the other reports obtained by the defendants.
· Dr Wendy Triggs, consultant psychiatrist, reported 8 April 2014. The plaintiff has a significant past psychiatric history, having had hospital admissions and been on medication for a number of years. In relation to diagnosis, he presents with a Mixed Affective Picture.
· Dr Dush Shan, consultant psychiatrist, reports of 27 August 2015, 16 November 2015 and 21 March 2016. As at the date of the first examination, the plaintiff did not present with any evidence of psychosis. The history of events is more consistent with a diagnosis of personality disorder of the borderline type. This is a diagnosis that is intrinsic to the biological disposition of an individual and employment is not a significant or materially contributing factor. As expressed in the most recent report, some aspects of a psychiatric history can be explained with a diagnosis of bipolar affective disorder, others are indicative of personality disorder. Employment does not contribute to the current psychiatric condition. The plaintiff is currently unfit for any employment.
· The defendants also placed in evidence the report of Associate Professor Vine to which reference has been made above. In addition there was placed in evidence a letter from Dr Lionel Leong, psychiatry registrar of NorthWestern Mental Health, to Dr Cenap, such letter being dated 12 January 2018. Dr Leong reported that the plaintiff’s presentation appeared to be consistent with an emerging manic-psychotic relapse of his previously diagnosed bipolar affective disorder, but with evidence of some improvement after his initial presentation and with the institution of aggressive pharmacotherapy. The plaintiff was seen to be at ongoing risk of a further deterioration in his mental state, representing a full blown manic-psychotic relapse in his bipolar affective disorder.
38 I shall now deal in more detail with the report dated 25 August 2018 of Associate Professor Doherty. It is apparent that Associate Professor Doherty was provided with a considerable amount of diagnostic investigations and the like. He undertook a mental state examination. Associate Professor Doherty expressed the opinion that the psychiatric condition suffered by the plaintiff is that of a bipolar disorder with psychotic features or that of a schizoaffective disorder, bipolar type. He considered it likely that, during the plaintiff’s employment with BTI, he misinterpreted the actions of others, this being due to the nature of his psychiatric condition. This condition will tend to recur and will wax and wane. The long term prognosis is not favourable. A review by a psychiatrist was currently indicated because of significant side effects from the prescribed medication. It was the view of Associate Professor Doherty that the plaintiff should stay on antipsychotic medication.
39 Further, Associate Professor Doherty expressed the opinion that the plaintiff’s employment had not caused his psychiatric condition or caused an aggravation, acceleration, exacerbation or worsening of that condition. The plaintiff’s mental health was deteriorating during 2013 and into 2014. He was misinterpreting what was going on around him. His deterioration continued after he ceased work and there was a rapid escalation of his psychiatric condition leading to hospitalisation in July 2015. In the opinion of Associate Professor Doherty, the natural history of the psychiatric condition ran its course. The plaintiff had been assessed and treated by people who did not know the psychiatric history, these including the psychologist. He was in fact suffering from prodromal symptoms that led to the eventual florid psychotic presentation in mid-2015. The current presentation and need for ongoing psychiatric treatment is due to schizoaffective disorder, which could also be called bipolar affective disorder with psychotic features. It is a constitutional condition not caused by work. The plaintiff is significantly disabled due to the side effects of medication and there will be a deterioration in his capacity to enjoy life and undertake daily activities. There was an exacerbation of his severe psychiatric condition in January 2018. He is currently incapacitated for all work. There is no evidence of exaggeration of symptoms or deliberate attempt to feign injury. The plaintiff is very disabled. He suffered a severe psychiatric condition first evident in 1997 and his significant psychiatric problems have been clearly evident, continuously since 2015.
Diagnosis, causation and the like
40 As the entire success or failure of this application depends upon my findings as to diagnosis and my decision in relation to the competing positions that have been put before me, I shall briefly summarise the closing submissions of counsel in the order in which they were presented.
(i)The submissions on behalf of the defendants.
41 The submissions presented by Mr Clements and Mr McKenzie on behalf of the defendants could be summarised as follows. The plaintiff had been diagnosed with a bipolar disorder and/or a schizoaffective disorder long before he started working for the first defendant in 2011. The final diagnosis given in relation to the 2001 hospital admission was one of bipolar affective disorder in addition to conversion disorder and pain disorder. It is clear that the plaintiff had a pre‑existing condition which had required two significant psychiatric inpatient admissions. He was then able to work full-time from 2002 until 2014.
42 Reference is made to the report of Associate Professor Doherty. Having referred to the previous hospital admissions and diagnoses, Associate Professor Doherty expressed the view that the plaintiff’s psychiatric condition was one of bipolar disorder with psychotic features or that of a schizoaffective disorder, bipolar type. He referred to the likely misinterpretation by the plaintiff of the actions of others. This is due to the nature of his psychiatric condition. The distinction between misinterpreting the actions of others and events at work causing the recurrence of an underlying condition is an important one. Associate Professor Doherty is not saying that the underlying bipolar condition made the plaintiff vulnerable in relation to occurrences at work and that this caused the recurrence of his condition. He is simply saying that a feature of this type of illness leads to a tendency to misinterpret. Further, the nature of the particular psychiatric condition is that it will tend to recur and will wax and wane. The recent discharge summary from NorthWestern Mental Health refers to the high risk of relapse should the plaintiff cease taking psychotropic medications.
43 Associate Professor Doherty also described the long term prognosis as not being favourable, adding that the nature of the psychiatric condition is that it is likely to recur. He expressed the view that the plaintiff’s employment had not caused the psychiatric condition or an aggravation and the like of such condition. Prior to the plaintiff’s admission into hospital in mid-2015, he had been on anti-depressant medication for 10 months. It was not a sudden psychotic episode following him being put on Escitalopram. Associate Professor Doherty disagrees with the comment of Associate Professor Vine that the Escitalopram may have precipitated the deterioration. There is no evidence of the plaintiff having a sensitivity to such medication. It is clear from the plaintiff’s evidence that he had been prescribed anti-depressants in the past.
44 It is the opinion of Associate Professor Doherty that the nature of the plaintiff’s psychiatric condition is such that there will be relapses and remissions, including that in June and July 2015. That is some 14 months after the plaintiff ceased work. It is not proximate to the alleged workplace bullying. Associate Professor Doherty has expressed the firm opinion that the psychiatric condition suffered by the plaintiff is independent of employment and employment has not been a significant contributing factor to it. This is significant, because the case has been presented as a recurrence case and therefore s82(2C) of the Act applies. That the employment was a significant contributing factor to the injury is required to be established.
45 Associate Professor Doherty believed that the plaintiff’s mental health was deteriorating during 2013 and 2014. He was misinterpreting what was going on around him and that deterioration continued after he ceased work, leading to the hospitalisation. The natural history of the psychiatric condition ran its course. In making his observations, Associate Professor Doherty was not making some sort of judgment as to whether in fact bullying was occurring in the workplace. The diagnoses of adjustment disorder, depression and anxiety made by Dr Ibrahim and the psychologist, Ms Teggelove, in the months following cessation of work should not be accepted. Those practitioners were not aware of the plaintiff’s complex past psychiatric history. Associate Professor Doherty makes this clear. Neither Dr Ibrahim nor Ms Teggelove were given any information about a psychiatric history which indicated a psychotic illness and/or bipolar disorder or schizoaffective disorder. Similarly, significant weight should not be placed upon the opinions of Dr Cenap, the general practitioner. This matter involves a complex psychiatric condition with a long history and the reports of Dr Cenap do not disclose any significant knowledge of the past psychiatric history. In any event, the Court is much better assisted by the mental health practitioners.
46 The report of Dr Weissman is not consistent with the plaintiff’s case. Dr Weissman did not suggest that employment was a cause of or contributing factor to a relapse of a bipolar disorder and does not even diagnosis such a condition. He only diagnoses major depressive disorder. Dr Weissman does not grapple with the causation issues, which are relevant in the light of the way in which the plaintiff’s case is put. Associate Professor Vine states that treatment for the plaintiff’s lowered mood may have precipitated the relapse of the bipolar disorder, but “may have”, as opposed to “likely did”, is not enough.
47 The report of Dr Nathar does support the plaintiff’s case and, if it was accepted, the plaintiff goes a long way towards winning. Either his analysis or Associate Professor Doherty’s analysis could be accepted, but not both. Associate Professor Doherty’s report should be preferred. Dr Nathar has not commented since 2016 and since then the plaintiff appears to have had a further flare up in 2017, when he was not taking anti-depressant medication. It is to be remembered that Dr Nathar was of the view that the anti-depressant medication had caused the flare up in July 2015. It is not apparent that Dr Nathar had the detailed information concerning the 1998 and 2001 admissions, whereas Associate Professor Doherty did. His analysis is more comprehensive, with more thorough documentation and up-to-date information. In addition, he had access to more complete documentation about the crucial 1998 and 2001 episodes. His view should be preferred over that of Dr Nathar and that should lead to a dismissal of the claim on a causation basis. The report of Dr Shan is also not up-to-date. The most recent and persuasive analysis is that of Associate Professor Doherty. The recent flare up is important, because it occurred in the absence of anti-depressant medication.
(ii)The submissions on behalf of the plaintiff
48 The submissions of Mr Lewis and Mr Horner on behalf of the plaintiff could be summarised as follows.
49 The defendants expressly rely upon the report and opinion of Associate Professor Doherty. It is contrary to all other opinions in relation to causation. Dr Ibrahim had some knowledge of the events that had occurred many years before and stated that the recent work had contributed to the plaintiff’s psychiatric presentation. The plaintiff’s general practitioner also had some knowledge of the earlier difficulties and stated that the plaintiff’s current condition would probably not have developed if the work situation had not occurred. The general practitioner may not be an expert psychiatrist, but is well familiar with the plaintiff.
50 In the comparatively recent report of the Mental Health Tribunal, it is recorded that the deterioration in the plaintiff’s mental state is thought to have been triggered by psychological stress related to workplace bullying. Whether or not this is an expression of opinion or part of the history is not clear, but in any event the Tribunal thought enough of it to include it. Associate Professor Vine expressed the view that anti-depressants may well have precipitated the psychotic event. Dr Shan, who examined on behalf of the defendants, in essence states that, if it is accepted that workplace bullying took place, that may well explain what happened to the plaintiff. The use of anti-depressants for several months may well be relevant. If anti-depressants were made necessary by reason of the adjustment disorder or depression brought on by the work environment, that is significant in terms of being a major contributing factor to the plaintiff’s condition.
51 Dr Weissman stated that the plaintiff’s history may be regarded at least in part as being a recurrence of a quiescent bipolar disorder and that recurrence was aggravated or contributed to by the employment.
52 In essence, Associate Professor Doherty stands alone in relation to the views expressed by him. Further, Associate Professor Doherty has noted the plaintiff’s admissions to hospital units in 1998 and 2001, but makes no further comment on the fact that there was no further psychiatric intervention for nearly 15 years. Dr Nathar has pointed out that such a long quiescent period makes it very unlikely that the 2015 breakdown was simply a spontaneous reoccurrence. The lengthy period without problems is very relevant.
53 Associate Professor Doherty, in stating that the plaintiff is misinterpreting what was going on around him in 2013 and 2014, is attempting to assume the role of a fact-finding tribunal. Associate Professor Doherty’s opinion fails to analyse or take into account the 15 years during which the plaintiff worked and lived without problems.
54 The theory advanced by Associate Professor Doherty is effectively one of a spontaneous reoccurrence, without analysing the 14 years of trouble-free life which the plaintiff enjoyed prior to it. Apart from what has been asserted by Associate Professor Doherty, the views of virtually every other doctor are to the effect that the allegations of bullying are a sound explanation for a precipitation of symptoms allied to the underlying condition.
Ruling
55 As has been stated several times, the contest in this application effectively revolves around whether I accept the opinion advanced by Associate Professor Doherty, examining on behalf of the defendants, or that of some of the other medical examiners, including treaters. The issue of whether or not the plaintiff was in fact bullied at his place of employment is not to be determined. There is no argument concerning the degree of the plaintiff’s illness or whether the consequences of it meet the requirements of the definition contained in s134AB(37), and in particular paragraph (c) of the definition of serious injury contained therein. The issue is narrowed down to whether the plaintiff’s employment was a significant contributing factor to the recurrence of a pre‑existing injury or disease within the meaning of s82(2C)(c) of the Act. The plaintiff is not arguing that the mental injury suffered by him was something concerning which he had no history or which arose for the first time because of the workplace bullying.
56 I say now that I prefer the medical evidence advanced on behalf of the plaintiff. This means that I do not prefer or accept the opinions expressed by Associate Professor Doherty and, to paraphrase what was said by Mr Clements in his closing address, it was in that basket which the defendants effectively placed all of their eggs. I have come to that conclusion for a number of reasons, which shall not be discussed in order of importance or significance.
57 Firstly, the matter has to be approached on the basis that there is no challenge to the fact that the alleged bullying took place. Certainly, given the manner in which this application was conducted, that would appear to be the case. It was said at the outset that there was a dispute about whether the plaintiff was bullied or harassed at work, but that it was impossible and undesirable for me to try and resolve that dispute at this type of hearing. The defendants’ position was made clear from the outset and the following extract from the opening of Mr Clements at T22 summarises it neatly:
“His (Associate Professor Doherty’s) opinion is that it’s constitutional, the very nature is it relapses from time to time and nothing that occurred at work or how the plaintiff interpreted it has caused the reoccurrence so that’s what we say about it.”
58 If that be the ground upon which the application is defended, as it is certainly stated to be, the defendants seems to me to face some immediate problems. There is no challenge to the plaintiff’s contention that he was in fact bullied in the workplace. There is no challenge to the proposition that the plaintiff’s interpretation of what occurred at the workplace has caused the reoccurrence of the symptoms which he had previously experienced. Associate Professor Doherty’s opinion is at least partially based upon the proposition that there was misinterpretation by the plaintiff of the actions of others, including management, and that this misinterpretation was due to the nature of the plaintiff’s psychiatric condition.
59 There seem to me to be at least two problems associated with this proposition. Firstly, as was submitted, it is dangerously close to trespassing upon findings of fact, as opposed to expressing an expert medical opinion. Secondly, it ignores the proposition referred to above that the defendants’ case has been opened on the basis that the plaintiff’s condition is constitutional and that nothing which occurred at work “or how the plaintiff interpreted it” has caused the recurrence. In other words, Associate Professor Doherty’s opinion is effectively based upon the premise that the alleged bullying in fact did not take place and that what occurred was a misinterpretation due to the effects of the underlying condition. This does not address the proposition of “What if the bullying was in fact taking place?”, and the fact that bullying was occurring, as asserted by the plaintiff in his affidavit of 15 December 2017, remains unchallenged.
60 In summary, if there was actual bullying, as opposed to misinterpretation, what then becomes of Associate Professor Doherty’s opinion? Is it still to the effect that what occurred was a recurrence of an underlying condition of which misinterpretation is a symptom? One would think that this theory would fall by the wayside. If the bullying was real, does the opinion of the re-emergence of an underlying disease totally unrelated to employment still hold water? I find it very difficult to say that it does. The opinion of Associate Professor Doherty is at least partially based upon a misinterpretation by the plaintiff of what was going on around him, this being due to his deteriorating mental health. I would refer, for example, to paragraph 5(b) of Associate Professor Doherty’s “Response to Specific Questions/Conclusions”. His is a lengthy report, but I cannot see, nor was I directed to, any reference in it to his views or opinion if the bullying was in fact a reality, rather than a misinterpreting by the plaintiff of what was occurring.
61 In other words, some of the problems associated with the opinions of Associate Professor Doherty seem to me to be the following. What if there was actual bullying (a question which I am not asked to determine)? What if there was perceived bullying – behaviour which was not intended to be bullying, but legitimately interpreted by the plaintiff as so being? What is the situation if there is no finding one way or the other as to actual or perceived bullying, given that I was told that I was not required to decide this? Finally, given those problems, what then happens to Associate Professor Doherty’s whole theory?
62 In any event, I prefer the opinions of the other medical examiners.
63 Dr Matthew Li, general practitioner, may well have been the “works’ doctor”. Certainly he reported to BTI on 28 July 2014 that he had seen the plaintiff, who gave a history of becoming anxious at work and suffering what he described as a breakdown. Di Li diagnosed anxiety and noted that the plaintiff associated this with matters at work and, in particular, being yelled at by his manager. He also had other complaints of this nature. The only significance of this is that there would appear to have been at least perceived bullying from an earlier stage and that a diagnosis of anxiety was made at a similar stage.
64 I have already summarised the reports of the plaintiff’s treating general practitioner, Dr Cenap. Again, effectively from the outset, there were allegations of stress, anxiety, depression and the like associated with bullying.
65 Dr Ibrahim, the consultant psychiatrist who saw the plaintiff on 30 November 2015, was aware of the fact that the plaintiff had previously been admitted to Sunshine Psychiatric Hospital for a week, this being some 15 years previously. He referred the plaintiff to Ms Paula Teggelove, psychologist, and expressed the opinion that the plaintiff’s symptoms could be viewed as an employment-related adjustment disorder. Ms Teggelove diagnosed adjustment disorder with mixed anxiety and depressed mood and implicated employment.
66 I have not gone through these reports again in detail. However, what they show is that the plaintiff was in an anxious and agitated condition virtually from early 2014, and that he consistently referred to his being a victim of specific bullying in the workplace.
67 The material obtained from NorthWestern Mental Health also contains histories in which there are many references and complaints concerning workplace bullying. Of course, there are also references to the plaintiff’s history, including admissions in 1998 and 2001. Interestingly, the three week admission in 2001 is described as being to the Austin Eating Disorder Unit. As stated, Associate Professor Vine, Executive Director of NorthWestern Mental Health, expressed the view that workplace bullying was not the primary cause of the relapse, but that the plaintiff’s response to it was likely to have resulted in lowered mood and the treatment for this – the prescription of anti-depressant medication – may have precipitated the symptoms that led to the admission.
68 Viewed one way, and even leaving to one side the possibility that anti-depressant medication may have triggered or precipitated the psychotic relapse, we would still then be left with a concurrent condition of anxiety and the like related to actual or perceived workplace bullying of sufficient severity for Dr Cenap, the treating general practitioner, to describe the plaintiff as having no capacity for suitable employment and stating that this was likely to be of a long-term nature.
69 I then come to the medico-legal assessments to which there has been earlier reference – the reports of Dr Nathar and Dr Weissman. Dealing with the latter, it seems to me that Dr Weissman did take into account the history of the plaintiff having a past psychiatric history, which was severe. He referred to the possibility that the present situation may be regarded, at least in part, as a recurrence of a remitted/quiescent bipolar disorder. However, he regarded that recurrence as being aggravated by or contributed to by the plaintiff’s employment and was aware of the allegations of bullying.
70 However, Dr Weissman also noted that the plaintiff had a full psychiatric capacity for work prior to the employment, and concluded that the plaintiff was suffering from a chronic major depressive disorder with agitation and traumatisation features. I do not agree that his opinion can in essence be put to one side. He has considered, at least in part, the plaintiff’s psychiatric history and has found employment contribution. He has stated that the plaintiff is currently suffering from at least a moderate group of employment-related psychiatric conditions and mental injuries, also referring to them as being relevant to the plaintiff’s employment. In a complex case, I regard this as providing logical support for the plaintiff’s position in implicating employment to the required level.
71 Given the manner in which this case was conducted, this does not suffer from the flaw in Associate Professor Doherty’s opinion relating to the misinterpretation of actions (the absence of actual bullying). Specifically, I repeat that I am not asked to rule concerning the presence or absence of bullying.
72 That brings me to Dr Nathar. Mr Clements has conceded that the views of Dr Nathar stand in contrast to those of Associate Professor Doherty and that, if the opinion of Dr Nathar is accepted, the plaintiff goes a long way towards winning – see T43. I prefer Dr Nathar’s opinion. A criticism of it is that it is now well in excess of two and a half years old. In my view, this does not have a great effect upon the validity of the opinions expressed.
73 In his supplementary report of 13 April 2016, Dr Nathar expressed the opinion that the plaintiff’s work-related stressors, if accepted as accurate (and in this hearing, there is no challenge to them), did not simply precipitate a mild depression. The plaintiff’s illness overall was severe and that, once an episode like this has been precipitated, its course is hugely unpredictable. To accept that a recurrence of depression or mania is, in essence, a spontaneous recurrence, as part of the natural pattern of the illness, requires the complete discounting of allegations of work stress.
74 Of course, in the constraints of the factual scenario to be dealt with in this case, the allegations of work stress cannot be discounted, either partially or completely, because there is no challenge to them. Even when changing his diagnosis from major depression to precipitation of a bipolar affective disorder with depressive and then manic/psychotic features, Dr Nathar did not change what had otherwise been stated in his earlier reports. This includes the opinion that, if the plaintiff’s assertions in relation to bullying are proven accurate, employment would be a significant contributing factor to his condition.
75 I have not revisited reports which the defendants obtained from Dr Triggs and Dr Shan. As earlier stated, Mr Clements submitted that effectively all the defendants’ eggs were in the basket of Associate Professor Doherty.
76 In summary, for the reasons set out above, I prefer and accept the opinions of the plaintiff’s medical examiners and particularly those of Dr Nathar. I do not accept the conclusions of Associate Professor Doherty. Given the scope of the contest before me, as referred to frequently during these reasons, this means that no other rulings are required.
Conclusion
77 The plaintiff is successful. He has discharged the burden of proof. He has established that he has a permanent severe mental or permanent severe behavioural disturbance or disorder and that, as required by s82(2C), his employment has been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of his severe mental or behavioural disturbance or disorder, and that the consequences of such disturbance or disorder are permanent within the meaning of the Act. He has discharged the burden of proof in relation to both pain and suffering and loss of earning capacity. Leave is given to him to bring proceedings accordingly.
78 I shall hear the parties as to any ancillary orders that are required.
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