Harrison v Forty-Eighth Snowman Pty Ltd
[2014] VCC 2125
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-13-02669
| JENNIFER MAUREEN HARRISON | Plaintiff |
| v | |
| FORTY-EIGHTH SNOWMAN PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 December 2014 | |
DATE OF JUDGMENT: | 18 December 2014 | |
CASE MAY BE CITED AS: | Harrison v Forty-Eighth Snowman Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2125 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – consequences of a compensable left shoulder injury – psychiatric and physical consequences claimed
Legislation Cited: Accident Compensation Act 1985 (Vic) s134AB(16)(b)
Cases Cited:AG Staff Pty Ltd v Filipowicz ; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Ansett v Taylor [2006] VSCA 171; Hunter v Transport Accident Commission [2005] VSCA 1.
Judgment: Leave refused in respect to physical injury – Leave granted in respect to psychiatric injury –for both pain and suffering and loss of earning capacity consequences.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr D McWilliams | Wisewould Mahony Lawyers |
HER HONOUR:
1 Jennifer Harrison (“the Plaintiff”) makes application for leave to bring proceedings to recover damages in respect of injuries sustained during the course of her employment with Forty-Eighth Snowman Pty Ltd (trading as Imported Theatre Fabrics).
2 The company manufactures stage drapes and curtains for the theatre and entertainment industry.
3 The Plaintiff was employed as a sewing machinist with Imported Theatre Fabrics from about 5 July 1999.[1] Her role involved sewing drapes, curtains and backdrops for the theatre and event industries. Prior to injury she was a casual employee working full time hours. Her hours of work were from 10.00am to 4.30pm. She did extra hours when requested.[2]
[1]Defendant’s Court Book (“DCB”) 1
[2]Plaintiff’s Court Book (“PCB”) 24.2
4 She is an experienced industrial machinist. Her work history spans decades. Following leaving school having completed Fourth Form she initially worked in hospitality and retail and then went into the upholstery business. She worked for a variety of industries prior to working for the Defendant. She worked for Superspan Braeside cutting and sewing shade cloth for about two years; Kendal Furniture as an upholstery machinist for about nine months; Theatrical Supplies of Australia as a machinist and cutter for about five to six years, and INC as a fabric inspector for about one year.[3]
[3]PCB 2
5 As a consequence of the repetitive and heavy nature of her work, she alleges that she suffered injury to her left shoulder and as a result she has been unable to return to employment since 5 October 2010.
6 When symptoms in the left shoulder occurred in late September 2010, the Plaintiff consulted a physiotherapist, Martena Yammas, on the recommendation of her employer. Marked loss of strength and left sided shoulder/neck pain was noted by Ms Yammas.
7 An ultrasound of the left shoulder taken on 1 October 2010 showed an intrasubstance tear of the supraspinatus tendon.[4]
[4]PCB 60
8 Ms Harrison continued with physiotherapy treatment until November 2011. She also consulted her long term general practitioner, Dr Cheung who has continued to manage her conservatively.
9 The Plaintiff attempted a return to work doing light duties for two days but was not able to cope. She last worked on 5 October 2010.
10 The Plaintiff has a history of pre-existing anxiety and depression. It is alleged that as a consequence of her physical injury, she developed aggravation or exacerbation of her pre-existing anxiety and depression.
11 The Plaintiff brings the application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). Ms Harrison alleges that she suffers a serious injury within the definition of s134AB(37) of the Act.
12 She relies on:
“(a)permanent serious impairment or loss of a body function” with the identified relevant body function being injury to the left shoulder with consequential loss of function.
13 She further relies on:
“(c)permanent severe mental or permanent severe behavioural disturbance or disorder”
Being the aggravation or exacerbation of her pre-existing anxiety and depression variously described as an Adjustment Disorder with anxiety and depression or Major Depression.
14 Leave is sought to bring proceedings for damages in relation to pain and suffering and loss of earning consequences.
15 Mr McGarvie QC, in his opening submissions, confirmed that the psychiatric injury is what is primarily relied upon. He confirmed that this is a case involving an aggravation of a pre-existing injury. He foreshadowed that causation was in issue in respect to the psychiatric injury.
16 In the event that the Court was of the view that the psychiatric injury was not caused by work, then he submitted that the left shoulder injury in itself, insofar as it restricts the Plaintiff from full time work, would mean that she qualifies under the loss of earning capacity provisions and thereby satisfies the test for serious injury in respect to both pain and suffering damages and loss of earning capacity.
17 Mr McWilliams, on behalf of the Defendant, submitted that the application is contested on the basis that any physical consequences of the injury to the left shoulder suffered by the Plaintiff have resolved completely; or, alternatively, if the Court is not satisfied they have resolved, then the consequences do not meet the requirements of the test for serious injury in that the physical consequences are not “more than significant or marked when judged by comparison with other cases in the range of possible impairments or loss of a body function, nor at least very considerable”.
18 He submitted the Plaintiff’s psychiatric consequences do not constitute a permanent severe mental or permanent severe behavioural disturbance or disorder.
19 He relied upon the expressed opinions of Dr Nigel Strauss and Dr AIan Jager, psychiatrists who have assessed the Plaintiff on behalf of the Defendant who say that the injury at work is not a cause or a major contributing factor to the Plaintiff’s current psychiatric or psychological consequences.
20 In the alternative, he submitted that the psychiatric or psychological consequences of the injury do not constitute a permanent severe mental or permanent severe behaviour disturbance or disorder.
21 He submitted the Plaintiff fails to satisfy the 40 per cent loss of earning capacity requirement in s134AB(38)(e) and that she has a capacity to earn at least 60 per cent of her without injury earnings.
22 He submitted that the Plaintiff is capable working in a full time capacity as a retail sales assistant (ladies fashion store), cashier/checkout operator (supermarket), product quality controller, or in her pre-injury duties as fabric maker/seamstress. Accordingly the Plaintiff’s application ought to fail.
The evidence
23 Ms Harrison, the Plaintiff, gave sworn evidence and adopted the three affidavits that have been filed in support of her application sworn 16 October 2012, 16 November 2014 and 2 December 2014 respectively.
24 No other witnesses were called to be cross-examined. No video surveillance of the Plaintiff was shown to the Court.
25 The Plaintiff further relies on the consequences described in the affidavit of her former partner, Christopher Molloy, dated 26 November 2014. The parties tendered a number of reports that were exhibited in the hearing.
26 I have had the advantage of observing the Plaintiff giving her evidence over the course of two days. She was extremely anxious during cross-examination and was very slow in her responses. She had very real difficulty coping with the process. Nevertheless, she endeavoured to answer the questions that were put to her and was open about the various stressors in her life and her pre-existing psychological condition. She did not embellish her evidence and I reject the suggestion that I should have any reservations about accepting her evidence.
27 Mr McWilliams made reference in his final address to some evidence the Plaintiff gave about a rash to support his submission that I ought to have reservations about the Plaintiff’s evidence. There was other evidence that supported the Plaintiff’s claim that as a consequence of stress she had a reaction and a rash spread over her body.[5] This was different from a skin infection to her face and neck recorded in the doctor’s notes in 2009.
[5]DCB 52. The late Associate Professor J Hart noted scarring in the shoulder region and on the upper extremities and was shown multiple scars over the lower extremities and over the body which the Plaintiff said were due to a stress reaction and probably scratching.
28 From the totality of the evidence I accept that the Plaintiff’s pre-existing anxiety condition meant that she was a vulnerable personality prior to the left shoulder injury. She decompensated following her left shoulder injury and the injury contributed to the worsening of her mental state. The psychiatric condition is now the dominant feature of her presentation. I accept that the injury at work is a cause or a major contributing factor to the Plaintiff’s current psychiatric consequences.
29 I accept what the Plaintiff says in her affidavits concerning the nature of her injury and the consequences.
30 By way of background, Ms Harrison is aged fifty-five. She was born on 10 June 1949. She was raised by her father and her stepmother, her mother having left the family home when she was a very young child. She grew up in Camperdown but has lived in Melbourne since she was aged eighteen. It was not until she was about twelve that she formed a relationship with her mother. On occasions she would stay with her natural mother and her stepfather. She was subjected to childhood sexual abuse by her stepfather. Eventually when that was discovered, her relationship with her mother ceased. She did not have any counselling in respect to the sexual abuse. Her father’s first relationship ended when she was fifteen and he formed a relationship with a second stepmother. The Plaintiff did not get on with her second stepmother and lost contact with her father gradually. Her brother died from cancer in 2008 and she has not had contact with her other living brother. There is no family history of psychiatric illness.
31 Having completed Form 4, the Plaintiff left school and at the age of seventeen met her boyfriend and moved in with his family and eventually lived with him for a year or two. She then commenced work in the retail sector. She met another boyfriend and they lived together for a while before setting up an upholstery business. They married in 1980. She became pregnant but the child was stillborn. That was extremely distressing but she never had counselling. Her marriage broke down in the context of her husband being abusive and abusing alcohol and taking drugs. She then left her marriage and worked in a series of jobs as an upholstery machinist and it was at one of those jobs she met Mr Molloy. Her long-term relationship with Mr Molloy ended in 2008, which caused some distress. At that time she was prescribed Zoloft, an antidepressant.[6] The Plaintiff also had some counselling.
[6]DCB 87. The history taken by Dr Nigel Strauss at the time of his examination on 17 January 2013 was adopted by the plaintiff in the course of her evidence.
32 More recently the Plaintiff has commenced living in an arrangement whereby she shares a house with her ex-partner, but they are not in a formal relationship.
Left shoulder injury
33 There was no dispute that Ms Harrison suffered a compensable left shoulder injury.[7] What was in dispute was whether the condition has resolved completely or in the alternative, if the condition has not resolved, whether the physical consequences of the injury to the left shoulder satisfies the test for serious injury.
[7]Transcript (“T”) 13, L18-20
34 The treatment for the compensable left shoulder injury has been conservative. There was physiotherapy in the early years following injury and thereafter Ms Harrison has managed her condition with self-managed exercise and over-the-counter analgesics and occasional non-steroidal anti-inflammatory drugs.[8]
[8]T17, L4-9 and L17-18
35 A couple of months ago the Plaintiff was prescribed Mobic, an anti-inflammatory that she does not try to take too often because of stomach upsets.[9] She uses the anti-inflammatories sparingly. The clinical notes from Dr Cheung confirmed he prescribed Mobic on 2 September 2014.
[9]T18, L5-7; and T108, L10-15
36 In evidence in cross-examination, the Plaintiff confirmed that her left shoulder condition was not too bad compared to what it was previously.[10]
[10]T19, L22-30
37 Dr Cheung, General Practitioner, has provided a number of reports detailing the progress of the Plaintiff’s left shoulder condition. Both his reports and clinical notes document that the left shoulder improved over time, that the Plaintiff initially had some physiotherapy and by June of 2011 he recorded that the left shoulder condition was much improved, with a good range of movement.
38 In July of 2011, she was referred to Dr Julien Freitag for the one consultation in respect to her left shoulder pain.
39 When he examined her, he found that she had frozen shoulder; that is, global restriction in range of motion consistent with adhesive capsulitis. He related her condition to her work. He recommended a hydrodilation. Approval for the procedure was given many months later. However, that did not proceed on the advice of Dr Cheung who considered that the Plaintiff’s condition had improved.
40 By 10 November 2011, Dr Cheung had noted that the shoulder was better and thereafter his examinations showed full range of movement in the left shoulder.
41 In his latest report, dated 14 November 2014, he states that the Plaintiff is almost completely recovered from her shoulder injury and it is unlikely to require any future treatment. He notes that the most significant medical problem is an aggravation or exacerbation of the pre-existing anxiety and depression due to her shoulder injury and unemployment.[11]
[11]PCB 44
42 Ms Harrison has been reviewed by medico‑legal consultants organised by both parties.
43 Mr Thomas Kossmann, Orthopaedic Surgeon, assessed her and provided a report dated 8 October 2014. At that time, she complained of pain in her left shoulder and that she could not hold her left arm outstretched. For example, when she stretches out to get a pot or kettle, she cannot hold the arm up. She further complained of pain in the right shoulder due to overuse and was not able to lie on the left shoulder and had to support the left shoulder when resting. She complained of pins and needles in the left hand at times.[12] She told Mr Kossmann she does most of the household chores and a bit of gardening. However, a gardener mows the lawns. She does not undertake any recreational or sporting activities.[13]
[12]PCB 74
[13]PCB 74
44 He considered the prognosis regarding the left shoulder condition was guarded. He noted almost full mobility. However, he noted the complaint of ongoing pain issues when the left arm is outstretched. He considered she would require conservative treatment from time to time with pain medication and anti-inflammatories. He did not recommend physiotherapy or hydrotherapy or surgical intervention.[14]
[14]PCB 75
45 He diagnosed minor pain and movement restrictions of the left shoulder on the basis of intrasubstance tear of the supraspinatus tendon which he attributed to her employment. From an orthopaedic point of view, he considered she does have a work capacity. He noted she will not be able to use her upper extremities in a repetitive manner or work above shoulder or head height on a continuous basis.[15]
[15]PCB 76
46 Mr Kossmann noted that the Plaintiff had a panic attack prior to his examination and he emphasised the impact of the effect of extreme anxiety, depression and anxiety attacks and an alcohol problem on her work capacity and he recommended evaluation by a psychiatrist.[16]
[16]PCB 75
47 Dr Joseph Slesenger, Specialist Occupational Physician, reviewed Ms Harrison on 27 October 2014. Dr Slesenger confirmed that Ms Harrison has subsequently developed a Chronic Pain Disorder following the left shoulder injury. He also noted she had a mental health disorder.[17]
[17]PCB 85
48 His opinion is that the Plaintiff’s Chronic Pain Disorder of the left shoulder is with associated right shoulder dysfunction and a significant psychological impairment, though he acknowledged that is outside his area of expertise.
49 He considered her fit for alternative duties with physical restrictions; no pushing, pulling, carrying or lifting over five kilograms; no over shoulder reaching; no forward reaching beyond 50 centimetres; working four hours per day, four days per week.[18]
[18]PCB 86
50 The Plaintiff has also been examined by a number of consultants at the request of the defendant.
51 Mr Peter Scott, a senior consultant surgeon, examined her on 7 March 2011. His report is somewhat dated but I note that he recorded a full range of painless movements in all upper limb joints except the left shoulder which showed a range of abduction of 100 degrees, forward flexion of 110 degrees, external rotation of 60 degrees, internal rotation of 40 degrees, adduction of 40 degrees, extension of 20 degrees and pain was experienced at the extremes.[19]
[19]DCB 8
52 Mr Scott considered that she suffered from a unresolved left shoulder rotator cuff lesion with the development of a chronic pain syndrome with features strongly suggestive of worsening of a longstanding anxiety stress problem. He accepted that the nature of the Plaintiff’s work had caused the left shoulder condition.[20]
[20]DCB 9
53 He did not consider that she was fit to return to pre-accident duties or any job which required much in the way of use of the left upper limb at that point.[21]
[21]DCB 10
54 Mr Gerald Moran, Orthopaedic Surgeon, examined Ms Harrison on 24 August 2011. At that time Ms Harrison noted that she was receiving physiotherapy once a week or once a fortnight and that was helping her. She complained of intermittent left shoulder pain and left shoulder movements that were restricted. She was taking over-the-counter medication and using Deep Heat and Voltaren Gel.
55 Mr Moran confirmed that she had a five millimetre instar substance of the supraspinatus tendon of the left shoulder and also adhesive capsulitis of the left shoulder.[22]
[22]DCB 25
56 He did not consider her fit to return to her pre-injury duties and hours. He considered that she did have a current work capacity and that she was fit for light duty employment not using her left arm above shoulder height.[23]
[23]DCB 26
57 He foreshadowed that Ms Harrison should be fit to return to suitable job options as set out in a Vocational Re-educational Assessment Report from Work Able Consulting dated 30 June 2011 (apart from work as gaming attendant, three to four weeks after having a hydrodilation of the left shoulder.)[24] That procedure did not proceed.
[24]DCB 28
58 Mr Barclay Reid, General Surgeon, saw the Plaintiff on 10 May 2012 for the purposes of an impairment assessment for the left shoulder. When he saw her, she had complaints of dull pain in the left shoulder which increased with activity. The range of movement was nearly normal but she could not bear weight when her arm is stretched out. For example, she cannot lift a saucepan and her symptoms are continuous.[25] Ms Harrison was taking over-the-counter pain relief, Advil 20 milligrams, nearly every day and Panamax when the pain was bad. She applied Voltaren Gel on the shoulder.
[25]DCB 31
59 He diagnosed that the Plaintiff had a small intra-substance tear of the supraspinatus tendon in the left shoulder without impingement and without any associated bursitis. He considered the injury was continuing. He anticipated a complete recovery and foreshadowed that may take another year.
60 Mr Reid did not consider she was fit for her pre-injury work. He considered that she was fit for work not involving lifting the left arm above shoulder level and not involving carrying more than two kilograms with the left hand. She was able to perform activities of daily living but has some difficulty in activities which involve carrying objects with an outstretched hand.[26]
[26]DCB 33
61 Dr Andrew Miller, Occupational Health Consultant, reviewed Ms Harrison on 28 June 2012 for the purposes her worker’s weekly payments entitlement. He noted that she was continuing to complain of constant discomfort in the left shoulder, slight limitation of movement in the left shoulder and difficulty with many household chores. However, she could now hang up her washing. She was able to drive. She exercised regularly for the shoulder and occasionally took analgesic medication. His examination showed movements of the left shoulder were close to normal range.
Forward elevation: 130 degrees Normal equals: 150 degrees
Backward elevation: 30 degrees Normal equals: 40 degrees
Abduction: 140 degrees Normal equals 150 degrees
Adduction: 30 degrees Normal equals: 30 degrees
Internal Rotation: 40 degrees Normal equals: 40 degreesExternal Rotation: 70 degrees Normal equals: 90 degrees
62 There was no joint crepitus with movements in the left shoulder. Resisted movements for the left shoulder caused slight discomfort. Power of the muscle groups acting on the left shoulder were slightly reduced. There was no neurological deficit in the upper limbs.[27]
[27]DCB 42
63 He confirmed that the Plaintiff’s underlying pathology appeared to be rotator cuff tear of the left shoulder to which work was a material contributing factor to the injury and ongoing disability. He considered the condition was stabilised and that no further significant improvement is likely to occur regardless of treatment at this stage. Further treatment should include appropriate analgesic/anti-inflammatory medication if required and a self-managed exercise program at home, gymnasium or pool. The possibility of surgery could not be excluded at this stage.[28]
[28]DCB 42
64 He did not consider she was capable of doing the full range of her pre-injury duties but was capable of working within the following restrictions:
– avoid lifting in excess of 3 kilograms with her upper limb;
– avoid repetitive or forceful use of the left shoulder;
– avoid movements of the left shoulder beyond a comfortable range; and
– avoid extreme reaching with her left upper limb.[29]
[29]DCB 43
65 He considered that provided the restrictions were observed, the Plaintiff would be capable of a graduated resumption of her pre-injury hours. He noted the presence of the anxiety depressive condition which he stated may have been exacerbated by the claimed left shoulder injury.[30]
[30]DCB 43
66 Associate Professor John AL Hart (deceased) provided two reports, dated 15 January 2013 and 5 August 2014. On both occasions he examined the Plaintiff. When first reviewed on 15 January 2013, the Plaintiff complained of intermittent pain over the anterior and superior aspects of the left shoulder that occurred with lifting and elevation of the upper extremity above her head. She was able to carry items with the left upper extremity and did not experience any subluxation or locking.[31]
[31]DCB 51
67 She told him that she occasionally carried out the stretching exercises and occasionally used a Theraband as a self-managed exercise program. She took Panadol and used Voltaren Gel. His examination revealed the left shoulder was slightly tender over the long head of biceps but otherwise there is no local tenderness over the shoulder region. He noted full range of movement that was pain free. No impingement and no weakness.[32]
[32]DCB 52
68 He considered that the Plaintiff had recovered a full range of painless movement and the condition had resolved clinically.[33] He recommended referral for her psychological problems which he considered were playing a significant role in delaying recovery. Physically she would be capable of returning to work as a machinist.[34]
[33]DCB 53
[34]DCB 55
69 When assessed by him on 5 August 2014, Associate Professor Hart considered that the shoulder condition had improved since the earlier review. He recorded that the Plaintiff had relatively little pain and her main complaint was of weakness on overhead activities or when lifting with her left upper extremity. He noted that she was not receiving any treatment for the shoulder and carried out a very limited stretch program. She only required analgesics occasionally which she purchased over-the-counter.
70 He highlighted the major problem seemed to be the Plaintiff’s depression and anxiety. He noted that the Plaintiff had regained full mobility in the left shoulder. The major residual disability was weakness of the left upper extremity which limited the Plaintiff’s ability to work overhead and to lift with the left upper extremity. He acknowledged that the Plaintiff would also have difficulty with repetitive pushing and pulling with the left upper extremity.
71 With a strengthening program, he opined that the Plaintiff should be able to overcome this weakness and restore normal function to the shoulder. He reiterated the Plaintiff would be capable of working as a machinist from the point of view of the physical condition of her shoulder with the above restrictions.[35]
[35]DCB 63
72 Ms Harrison was seen by Dr Chris Baker, Specialist in Occupational Medicine, at the request of the Defendant on 22 April 2013. He noted that the Plaintiff had poorly developed musculature of the shoulder girdle in the left shoulder. There was no specific tenderness detected. The Plaintiff did not have any pain at that time and she had a good range of movement of the upper arm in elevation and abduction. The Plaintiff noted she sometimes felt pain but at present there was no pain in the shoulder. He noted that for the shoulder she was taking over-the-counter medication on an occasional basis. He confirmed the injury being intra-substance tear of the supraspinatus tendon. He noted a full range of movement without any pain in the shoulder joint.
73 He could see no reason why she could not return to do simple work within her skill level. He considered she would be able to return to pre-injury duties or similar duties if they were available. He anticipated she could work for five hours a day, four days a week. She could undertake repetitive movements providing they are not too repetitive in speed.[36] He considered she could undertake sewing machinist work of a lighter nature and that would be within her capabilities. He considered that she could move to dressmaking and sewing clothes for women and he recommended a course to provide her with additional skills.
[36]DCB 94
Physical injury conclusions
74 Having considered the totality of the evidence in respect to the claimed physical injury, I consider that the Plaintiff has suffered a compensable left shoulder injury as a consequence of her employment with the Defendant. In particular, I am satisfied that she suffered an intra-substance tear of the supraspinatus tendon of the left shoulder that led to a “frozen shoulder” which has partially resolved with treatment.
75 I accept as a consequence of the compensable injury that the Plaintiff continues to suffer from some restrictions insofar as she is not capable of performing activities using her left arm above shoulder height or lifting above shoulder height.
76 The Plaintiff is able to manage the physical condition by taking occasional pain relief medication and a moderate amount of anti-inflammatory medication.
77 I consider the physical condition to be permanent in the sense that it is likely to last into the indefinite future.
78 Overall, I am not persuaded that the pain and suffering consequences of the claimed physical injury to the left shoulder, when judged by comparison with other cases in the range of possible impairments, could be fairly described as being “more than significant or marked and as being “at least very considerable” for the purposes of s134AB(38) and therefore I am not satisfied that the injury is a serious injury.
79 In respect to the claimed loss of earning capacity by reason of the physical injury alone, I am not persuaded that the Plaintiff satisfies the test for serious injury.
80 The Plaintiff attended vocational assessments with Work Able Consulting Pty Ltd in 2011. She successfully completed the Holmesglen TAFE customer service course on 26 November 2011 and has, with the assistance of Work Able Consulting, submitted job applications to various employers and was successful in obtaining an interview with Spotlight but was not successful in obtaining employment in the retail setting. She has also applied through Work Able Consulting for retail positions at Bunnings Fountain Gate; and as a sewing machinist with P J Staff Furnishings.
81 In the final ten weeks of the job seeking program, Ms Harrison submitted a résumé to further potential prospective employers seeking positions in relation to work as a sewing machinist with a number of organisations including Horizon Sail Makers, Integrated Workforce, Work Wear Industries and Oz Coast Embroidery and Extra Staff, but did not secure employment.
82 Currently Ms Harrison is on Centrelink benefits and in order to continue her eligibility she was required and did undergo a CRS rehabilitation course of 12 weeks’ duration which she completed successfully but with some difficulty.[37]
[37] PCB 24
83 I accept the consensus of medical evidence that the physical injury has settled and the Plaintiff does have a capacity for suitable employment, albeit in a lighter capacity as a machinist working within the previously documented restrictions.
84 Having regard to the medical material and other evidence, I do not consider by reason of the claimed physical injury the Plaintiff demonstrated a loss of earning capacity. Accordingly the claim pursuant to paragraph (a) fails.
Psychiatric injury
85 It was not in dispute that the Plaintiff has longstanding psychological issues. Mr McGarvie submitted on behalf of the Plaintiff that the Plaintiff’s pre-existing psychological condition was aggravated as a consequence of the left shoulder injury and that the consequences of this aggravation is severe.
86 It has been held that, for the purposes of s134AB of the Act, an aggravation of an injury must itself qualify as a serious injury.[38]
[38]AG Staff Pty Ltd v Filipowicz ; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60, at paragraph [29]
87 An analysis must be made of the extent of impairment by reason of the pre-existing condition before and after the left shoulder injury and the claimed aggravation must itself be a ‘serious injury’.[39]
[39]Petkovski v Galletti [1994] 1 VR 436, 444; Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraphs [18]-[19]; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 at paragraph [17].
88 Therefore, in this application what must be decided is whether the left shoulder injury is a cause or major contributing factor to the Plaintiff’s current psychiatric consequences. Further, if so, it must be decided whether those consequences constitute a permanent and severe mental or permanent and severe behavioural disturbance or disorder.
89 In so far as causation is concerned, Mr McGarvie relied on the expressed opinions of Dr Cheung, the Plaintiff’s long term treating general practitioner, whose opinion he submitted was supported by both Dr Paul Kornan, Consultant Psychiatrist, and Dr Geoffrey Hogan, Psychiatrist, who examined the Plaintiff at the request of Dr Cheung on 16 December 2013.
90 He submitted that significant weight ought be given to Dr Cheung’s opinion, particularly as he has had the opportunity of observing and treating the Plaintiff both before and after the work-related injury.
91 Mr McGarvie also relied in part upon the acceptance of liability for the claimed psychiatric condition.
92 Allianz Australia Workers Compensation (Victoria) Pty Ltd wrote to the Plaintiff on 18 June 2012 accepting liability for both the left shoulder and psychiatric condition, following receipt of the Plaintiff’s claim for impairment benefits.
93 This acceptance of liability may not be binding but as said by Ashley JA in Ansett v Taylor [2006] VSCA 171, such an admission should ordinarily be regarded as very significant: “….albeit not conclusive because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”
94 Mr McWilliams submitted that the admission was limited. It is an acceptance of the claim as made on the basis that it is a temporary aggravation, it does not ergo translate directly to the fact that this is a once and for all.[40]
[40] T127, L1-12
95 From the Defendant’s perspective causation is still a live issue concerning the Plaintiff’s present condition.
96 I have taken into account the admission of liability in respect to the psychiatric injury as part of the material on which I have formed my judgment. It is not determinative of the causation issue that must be decided.
97 Mr McWilliams submitted that the accepted left shoulder injury is not a cause or a major factor contributing to the Plaintiff’s current psychiatric or psychological consequences. He primarily relied on the expressed opinion of Dr Strauss and Dr Jager, both of whom examined the Plaintiff at the request of the Defendant.
98 Dr Strauss reviewed the Plaintiff on 17 January 2013 and 5 August 2014. He took into consideration her background history, including the circumstances with her history of childhood sexual abuse, the breakdown of familial relationships, the death of her brother from cancer, the breakdown of her marriage and long term partnership with Mr Molloy, all of which pre-dated her work-related injury.
99 Dr Strauss in his report dated 5 August 2014 opines that the Plaintiff does not appear to be currently suffering from a significant physical condition and he relied on the expressed opinion of both Dr Cheung and also Associate Professor Hart.
100 His expressed opinion is that the Plaintiff has recovered from any physical injury she may have had and from a psychiatric point of view he was not convinced that her current psychiatric problems are due to the work-related physical injury. Rather, he believes that she was already emotionally upset at the time of physical injury and her psychological problems have simply continued since her physical injury, which has now resolved.[41]
[41]PCB 80
101 From a purely psychiatric point of view, he considers the Plaintiff may be capable of her pre-injury job but there may be physical restrictions.
102 He specifically disputes Dr Paul Kornan’s expressed opinion and does not believe that his expressed opinion or conclusions alter his opinion in any way.
103 Dr Jager reviewed the Plaintiff once on 17 April 2014. Dr Jager considers that the Plaintiff’s heavy alcohol consumption and adverse developmental history are the main causes of her anxiety. He postulates that she liked her work and that is not a source of her anxiety. Unemployment in his opinion contributes to her emotional distress. He opines that there is strong association between anxiety, depression and alcohol abuse and also illicit substance use. He does not consider that the Plaintiff’s anxiety is caused by the shoulder injury.
104 He noted that there is also a pre-existing generalised anxiety disorder which has waxed and waned over the years. He doubts the Plaintiff is fit, even from a psychiatric perspective, to undertake her pre-injury employment due to the impairment of her concentration. He considers her fit for half time employment, undertaking tasks not requiring intense concentration.
105 He did not consider that she was a particularly psychologically-minded person and noted she claims to have obtained no benefit from previous psychological therapy. Therefore he doubts psychological therapy would be of much use. He recommended that the Plaintiff stop drinking alcohol and using cannabis.[42]
[42]DCB 100 and 101
106 He considered Dr Paul Kornan’s findings and expressed opinion and did not alter his opinion as to causation (the condition is pre-existing) and was not exacerbated by the work injury.[43]
[43]DCB 101B
107 Dr Hillol Das, Consultant Psychiatrist, reviewed Ms Harrison at the request of the Defendant on 24 August 2011.
108 He accepted a causal link between the Plaintiff’s condition and her work related shoulder injury. He was aware of the Plaintiff’s past psychiatric history and treatment for depression. He noted that the Plaintiff, in her early 20s and following the breakdown of her abusive marriage, saw a counsellor and was prescribed anti-depressants for two years. In 1993 she was treated for reactive depression following the loss of all her possessions from a house fire and during that time she was prescribed anti-depressants. He recorded that following separation from her long term partner, she was prescribed Zoloft, which treatment continued up until December 2010. He noted that from July 2011 she had been prescribed Zoloft again.
109 Dr Das diagnosed a mild Adjustment Disorder with anxiety and depressive mood in partial remission. He considered that the condition was a new condition that had developed after the left shoulder injury compromising her work capacity and was further aggravated when she lost her 11 year job and was without income support for several months.[44] He did not consider that she needed any other psychiatric or psychological treatment.[45]
[44]DCB 18
[45]DCB 21
110 I further note, Dr Norman Rose, Psychiatrist, who was requested to provide an Whole Person Impairment Assessment in his report of 6 June 2012, states the Plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood, all of which is due to pre-existing depression and anxiety and to the effects of a physical injury.[46]
[46]DCB 93
The Plaintiff’s psychiatric evidence
111 Dr G Hogan, Psychiatrist, assessed Ms Harrison at the request of Dr Peter Cheung on 16 December 2013. He considered initially that the Plaintiff had an Adjustment Disorder with depressed mood but on reconsideration regarded her as having a recurrence of a Major Depressive Disorder precipitated by the work injury, pain and limitation of function, unemployment and WorkCover legal matters.[47] He considered that the work injury could still be regarded as the major cause of her present affective symptoms.
[47]PCB 55
112 At the time of his review the Plaintiff presented with sleep disturbance, low appetite, low energy and interest, social withdrawal, panic attacks, impaired concentration and memory, and he believed depressed mood (although that was not clearly described) with diurnal variation and tearfulness. He believed the severity of the depressive symptoms were such that the Plaintiff was not capable of sustaining employment, either in her previous duties (which he believed in any event were precluded because of her physical injuries) or alternative employment.[48]
[48]PCB 56
113 He recommended anti-depressant medication and psychological counselling, though he doubted she would comply with the latter given that in the past she had had psychological counselling which she described as useless. He expressed the view that with appropriate psychiatric management her major depressive episode could be much ameliorated or brought into remission over some months, at which point there would not be a psychiatric impediment to employment.[49]
[49]PCB 56
114 Dr Paul Kornan, Consultant Psychiatrist, undertook independent medical assessments on 6 November 2013 and 27 October 2014.
115 He had available all the medical reports relied upon by the parties, including those of Dr Nigel Strauss, dated 17 January 2013 and 30 April 2013, where the stressors that the Plaintiff was exposed to in her earlier childhood years and thereafter, including the history of childhood sexual abuse are detailed.
116 Dr Kornan acknowledged that the Plaintiff clearly had a significant history of anxiety and depression prior to the work-related shoulder injury. She frankly acknowledged to him that over the years off and on she had been on anti-depressant medication and that seemed to help her with her anxiety.
117 Dr Kornan accepted that following the development of her shoulder problem, her anxiety and depression has worsened. He confirmed his opinion that the Plaintiff suffers an Adjustment Disorder with mixed anxiety and depression, a Pain Disorder with associated psychological factors and a history of alcohol abuse.[50]
[50]PCB 69
118 In his opinion the Plaintiff’s psychiatric ill health has been aggravated by her employment injury. He noted ongoing symptoms of:
(i) pain in the left shoulder;
(ii) when stressed there was a “churning” type sensation in her stomach;
(iii) she had lost some three kilograms in weight;
(iv) problems sleeping;
(v) panic attacks;
(vi) increased smoking;
(vii)increased drinking from basically having a couple of beers a night to now going through six to eight stubbies a day, meaning she would go through about two or two and a half slabs a week;
(viii)as well she was taking analgesic medication with alcohol during the day;
(ix)at times she felt that socially she did not want to leave the house;
(x)she did not want to answer the mail;
(xi)she was not organising herself properly and was putting things off;
(xii)had problems sleeping and her mind seemed to be racing.
119 Dr Kornan considered the Plaintiff’s mental state was consistent with the above diagnosis. From a psychiatric point of view he considered that the Plaintiff was totally unfit for work, both for her pre-injury employment and for alternate duties. He confirmed that she needs treatment by a psychiatrist and will continue to need psychotropic medication. He also recommended counselling for her alcohol abuse.
120 Dr Kornan considered the Plaintiff’s current psychiatric ill health is significant and severe. He considers that she was someone who has an agitated depressed manner and was clearly not coping. There had been significant consequences to her lifestyle in that she has withdrawn from having communication with people and is basically homeless and without friends. Fortunately she is currently able to live with her ex-partner where she shares accommodation. He considers the Plaintiff’s prognosis to be very poor and that her current psychiatric presentation will persist indefinitely. He considers that she will remain a psychiatric invalid in the home situation permanently.
121 At best, even if treatment is successful, he sees it substantially as preventing downward fluctuations and limiting the likelihood of physical complications. He considers from his point of view the Plaintiff’s psychiatric ill health condition is severe and that she is quite disabled.[51]
[51]PCB 71
122 When seen by Dr Kornan on the next occasion on 27 October 2014, Ms Harrison confirmed she felt worse. Her prescription of Zoloft had been increased to 150 milligrams per day. There were longstanding problems, she said she had ongoing panic attacks now and she was prescribed new medication Pristiq, an anti-depressant medication, which had been increased from 100 milligrams a day to 150 milligrams per day.
123 He considered on the last occasion the Plaintiff presented with a gross anxiety state. She was shaking and tremulous. Her intelligence level was average. There was tension in her voice. Her mental faculties did appear to be somewhat affected as far as memory and concentration as the interview proceeded. He considered there was clearly subjective distress, an anhedonia, anxiety, depression, emotional lability and irritability. There were problems with confidence levels and self-esteem. There were no psychotic features. There were no delusions or hallucinations.
124 He considered that the Plaintiff now appeared to be someone who was restricted to be in the home situation doing her best to cope with household activity.
125 He confirmed his previously expressed opinion concerning the psychiatric diagnosis. His opinion is that the Plaintiff’s psychiatric ill health has been aggravated by her employment injury and then caused her to move on an accelerated, worsened pathway than would have otherwise have occurred.[52]
[52]PCB 72.6
126 From a psychiatric viewpoint she is totally unfit for work and is not fit for alternative duties. He recommended ongoing treatment in the nature of her medication, namely Pristiq, an anti-depressant, and that she should probably attend Alcoholics Anonymous. He considered that the Plaintiff’s prognosis is extremely poor and that she is likely to remain substantially a psychiatric invalid in the home situation permanently.
Conclusions
127 As can be seen from a review of all the material upon which the parties seek to rely, the expressed opinions are starkly at odds.
128 However, having regard to the totality of the evidence, I have come to the conclusion that significant weight ought to be given to the expressed opinion of Dr Cheung. Dr Cheung is an experienced general practitioner who has had the very real advantage of having observed and having treated the Plaintiff consistently since 1993. He is well aware of her past history of psychological injury and the various stressors on her life.
129 Dr Cheung’s unchallenged evidence is that there is a relationship between the left shoulder injury and a deterioration in the Plaintiff’s mental condition. He states that the major medical problem that the Plaintiff has presented with since the work-related left shoulder injury has been severe anxiety and moderately severe depression. He acknowledges the Plaintiff suffered from those conditions before. He states that he believes her work-related shoulder injury has significantly worsened her mental condition.[53]
[53]PCB 41
130 That conclusion is reflected in his clinical notes which sets out the history of ongoing treatment including the prescription of antidepressant medication, and the referral for psychiatric management and counselling. He does not consider Ms Harrison will ever be fit to return to her pre-injury duties attributable to her mental health. Her progression is fair.[54]
[54]PCB 44
131 I accept that the most serious and severe condition from which the Plaintiff now suffers is her psychiatric/psychological injury. Throughout the application it was an accepted fact that the Plaintiff had a longstanding psychological condition namely anxiety and mood disturbance for which she has been prescribed Zoloft over the years.
132 Nevertheless, notwithstanding all the stressors the Plaintiff experienced in the past, she has successfully maintained full time and steady employment. She demonstrated that she was a resilient person, who was able to maintain her employment with the Defendant for 11 years from June of 1999 up until the time she suffered her compensable left shoulder injury. Following her left shoulder injury she ceased working and thereafter I accept that her psychological/psychiatric condition manifested itself in more severe terms and is the current cause of her inability to work.
133 The Plaintiff’s presentation whilst giving evidence was consistent with what was described by Dr Kornan following his latest review.
134 Dr Cheung’s expressed opinion is supported to an extent by Dr Das, Psychiatrist, who reviewed the Plaintiff at the request of the Defendant. He was aware of her previous history and treatment and he accepted the relationship between the compensable left shoulder injury and the development of the Plaintiff’s psychiatric condition, although he described it as being “a mild adjustment disorder with anxiety and depressed mood.”[55]
[55]DCB 16
135 Dr Geoffrey Hogan, treating psychiatrist, confirmed in his opinion that the Plaintiff had suffered a current major depressive episode precipitated by her work injury, pain and limitation of function. He too was aware of her past history and diagnosis and previous treatment for recurrent major depressive episodes with antidepressant medication.
136 Those expressed opinions are in accordance with Dr Kornan’s views on causation. Dr Kornan, an experienced psychiatrist, was armed with the full history including the history of earlier episodes of sexual abuse by the Plaintiff’s stepfather. In particular, he had available to him Dr Strauss’s reports. He was aware of the Plaintiff’s significant history of past anxiety and depression. Dr Kornan also had the opportunity of seeing the Plaintiff over two visits on 16 November 2014 and as recently as 27 October 2014. He was not cross-examined about the significance of the past history of sexual abuse.
137 I accept his expressed opinion about the nature of the Plaintiff’s condition and its relationship to the work related shoulder injury.
138 Therefore I accept on balance that there is a relationship between the compensable left shoulder injury and the Plaintiff’s current psychiatric condition, be it described as a Major Depressive Disorder or an Adjustment Disorder with anxiety and depressed mood. The Plaintiff’s current psychiatric injury is an aggravation of her pre-existing anxiety and depression.
139 As Dr Cheung’s clinical notes show, in the past when exposed to serious stressors the Plaintiff has responded well with Zoloft. Over the years her anxiety has waxed and waned. A good example was in the period 2001 to 2002. She accepted treatment with Zoloft following relationship problems and the separation from Mr Molloy.
140 The clinical notes show that the Plaintiff was prescribed Zoloft on 31 May 2001. On 2 July 2001 it was noted that her mood was improved. On 27 August 2001, she was well and happy with Zoloft. On 2 May 2002 she had been on Zoloft for a year and she was well and there was consideration to reducing the daily dose from 50 milligrams to 25 milligrams and then to cease ultimately. On 26 August 2002, her mood was good. Then it was noted that she had separated from “Chris” on 26 October 2002. This was at a time when she was working with the Defendant company. There is no evidence that she was off work during this period due to anxiety.
141 The extracted clinical notes from 2008 show that the Plaintiff had to restart Zoloft in October of 2008, which continued on through to August 2009 when the dose was increased to 100 milligrams. Thereafter her mood was noted as “okay” but she was noted to be “sometimes anxious”. By 12 November 2009, the records state that she does not seem to be sure whether or not Zoloft helping but will continue with 100 milligrams dose. On 24 June 2010 it was noted she was feeling okay, up and down, and she was still on Zoloft.
142 Thereafter the Plaintiff suffered the shoulder injury which was first documented in her doctor’s clinical notes on 30 September 2010. Her mood did go up and down and she was prescribed Zoloft.
143 Dr Cheung’s notes show that the anxiety would at times necessitate an increase in medication. For instance, on 2 March 2012, the medication was increased to 150 milligrams daily. By 19 March 2012, her mood was okay on Zoloft 150 milligrams. Zoloft continued to be prescribed throughout 2012. By 15 January 2013, her mood was noted to be “slightly better but still anxious at times”. On 16 September 2013, she was “anxious ++” but stopped Zoloft. On 18 October 2013, she was on Zoloft 50 milligrams increased to 100 milligrams. On 24 December 2013, the Plaintiff was on Zoloft 100 milligrams.
144 On 19 February 2014, having seen Dr Hogan, Psychiatrist, the Zoloft was reduced from 50 milligrams daily for a week and then nil for three days and then she was started on Pristiq 100 milligrams. On 20 May 2014, the notes confirm that the Plaintiff was taking Pristiq 100 milligrams, making “no real difference”. On 12 August 2014, the notes state that she was continuing with Pristiq. On 24 August 2014, “anxiety much better this week on Pristiq”. On 10 October 2014, “Pristiq extended release tablets 50 milligrams, increased to 150 milligrams daily.”
145 It can therefore be seen that the Plaintiff’s anxiety condition has waxed and waned, necessitating ongoing management and changes in her medication since the left shoulder injury. There is no suggestion from the review of Dr Cheung’s clinical notes that the Plaintiff has not been compliant with her medication. Notwithstanding that she is compliant, she currently has very real difficulties coping with her anxiety and moods.
146 In assessing the Plaintiff’s claimed psychiatric injury I accept that the word ‘severe’ in paragraph (c) of the serious injury definition is a word of stronger force than the word ‘serious’ in paragraph (a) of that definition.[56] Further, because this application is for an aggravation of a pre-existing condition I must be satisfied that the consequences of the aggravation of itself are severe.
[56]Accident Compensation Act 1985 (Vic), s134AB(38)(d).
147 Further, I am required by s 134AB(38)(d) of the Act to judge the relevant consequences ‘by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as being more than serious to the extent of being severe’.
148 I accept the expressed opinions of Dr Cheung, Dr Kornan and Dr concerning the Plaintiff’s current psychiatric condition.
149 I find that as a consequence of the compensable left shoulder injury that the Plaintiff suffers Major Depression and/or Adjustment Disorder with depressive features.
150 I have had regard to the Plaintiff’s condition pre-injury. She had an anxiety condition that waxed and waned but was managed effectively with antidepressant medication.
151 I accept what Christopher Molloy states in his affidavit. He has known the Plaintiff for about 25 years. He formerly lived in a long term defacto relationship with the Plaintiff and has co-resided with her since 2011. His unchallenged evidence is that “Jennifer is not the person that she used to be. Jennifer used to be hard working. She loved her job. She has always been a timid person, but she was confident within herself….she did not have any problem with drinking that I knew of.” “Jennifer used to be able to manage many things at once”; “..she looked after the pets, did most of the housework, helped maintain the garden, socialised with friends and worked as a seamstress. She never had any difficulties managing all of these responsibilities.”[57]
[57]PCB 24.4 Affidavit of C Molloy, paragraphs 5 and 6
152 In contrast he says that “Jennifer is a completely different person now. She is always anxious and nervous, and she panics easily. She spends the majority of her time in her room. Often she will not leave the house for 2 weeks. She finds it difficult to make decisions. She drinks a lot more now than she used to.”[58]
[58]PCB 24.4; ibid, paragraph 7
153 I prefer Mr Molloy’s evidence to that of the Plaintiff’s former manager, Daniel Nicolls. He was the Plaintiff’s manager for two years prior to injury.
154 Mr Nicolls sets out in his affidavit sworn 21 May 2005 that “as long as I can recall the applicant had suffered a psychological condition” and that he was aware that she was on medication for the condition. The Plaintiff disputed that he was aware of her condition.[59] He does not set out the basis of his knowledge.
[59]T100, L20-26
155 Mr Nicolls asserts that “we knew when the Applicant had failed to take her medication because she came to work markedly different to her usual self.” There is no reference to how it was that Mr Nicolls had this awareness or the basis for him making this assertion. The clinical records for the two years before the injury show the Plaintiff was taking Zoloft and there is no record of non-compliance.
156 Mr Nicolls’ affidavit is contradictory. On the one hand he asserts that Ms Harrison was a valued member of the staff and good at what she does, but he then he described her work attendance as spasmodic. The Plaintiff was not cross-examined about this aspect of his evidence. No attendance records were tendered to support this assertion.
157 On balance I reject this evidence.
158 I accept the description of the Plaintiff’s mental state as described by Dr Paul Kornan; namely that there was clearly subjective distress, anhedonia, anxiety, depression, emotional lability and irritability. There were problems with her confidence levels and self-esteem.
159 The Plaintiff now presents as a person who has ongoing symptoms of panic attacks, anxiety, shaking, not eating or sleeping well, anxiety travelling as a passenger in a vehicle and as a driver, being socially withdrawn, remaining at home and only going anywhere when she really has to, suffering from residual aches and pains in her left shoulder and problems with drinking to extremes to cope.
160 The Plaintiff takes Pristiq, an antidepressant medication, 150 milligrams per day. I accept Dr Kornan’s opinion that this is probably realistically all that can be given to her. I accept her prognosis is extremely poor.
161 I accept Dr Jager’s opinion that given the Plaintiff’s past history, psychological therapy will not be of much use. The consensus is that the Plaintiff will have to continue to take anti-depressants indefinitely.
162 I am satisfied that the psychiatric injury is permanent in the relevant sense, that is, “…in the sense of likely to last for the foreseeable future…”[60]
[60]Barwon Spinners v Podolak & Ors (2007) 14 VR 622 at [34]
163 Having regard to the Plaintiff’s current level of anxiety and depression, which I accept is related to her compensable left shoulder injury, I find that the Plaintiff does not have a without injury earning capacity.
164 I am satisfied that the Plaintiff’s ability to undertake suitable employment has been permanently destroyed from the perspective of a consideration of the psychiatric injury alone.
165 In light of my findings as to the Plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more.
166 As rehabilitation and retraining have nothing to offer the Plaintiff in terms of her capacity for employment, the Plaintiff has satisfied the requirements of s134AB(38)(g).
167 The Plaintiff thereby has also satisfied the test in so far as pain and suffering consequences for the psychiatric injury.
168 Overall, I consider that the consequences of the Plaintiff’s present psychiatric condition, be it described as Major Depression and/or Adjustment Disorder with depressive features, does satisfy the requirements of the definition of serious injury found in s134AB(37)(c); namely, that she has a permanent severe mental or permanent severe behavioural disturbance or disorder.
169 I am satisfied that the Plaintiff has suffered a “severe long term behavioural disturbance or disorder” within the meaning of paragraph (c) within the meaning of the definition of “serious injury” when judged by a comparison with other cases in the range of possible mental or behavioural disturbances.[61]
[61] See Hunter v Transport Accident Commission [2005] VSCA 1, per Nettle JA, at paragraph [44] and s134AB(38)(h) of the Act.
170 Accordingly, Ms Harrison’s application in respect to paragraph (c) succeeds and leave will be granted to commence proceedings for both pain and suffering and loss of earnings consequences.
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