Harrison v Forty Eighth Snowman Pty Ltd (Workcover) - [2017] VMC 7

IN THE MAGISTRATES’ COURT OF VICTORIA G12580595

AT MELBOURNE

WORKCOVER DIVISION

BETWEEN:

JENNIFER HARRISON Plaintiff

-and-

FORTY EIGHTH SNOWMAN PTY LTD Defendant

MAGISTRATE: GINNANE

WHERE HEARD: MELBOURNE

DATES OF HEARING: 17, 18, 19 and 22 May 2017

DATE OF DECISION: 31 May 2017

MEDIUM NEUTRAL CITATION: [2017] VMC007

APPEARANCES Counsel Solicitors

For the Plaintiff Ms C Kusiak Zaparas Lawyers

For the Defendant Mr C Miles Wisewould Mahony

Catchwords: Accident Compensation Act 1985 – injury – whether total or substantial recovery of left shoulder injury – alleged mental type injury secondary to physical injury – whether work materially contributed to mental condition- long prior history of psychological stressors – causation - whether plaintiff has work capacity – vocational assessments and suitable employment – no current work capacity likely to continue indefinitely - plaintiff’s claim successful

REASONS FOR DECISION

HIS HONOUR:

This proceeding was heard over the course of 4 days. The plaintiff was represented by Ms Kusiak of counsel and the defendant was represented by Mr Miles of counsel.
The question for me is whether the plaintiff has a current work or no current work capacity arising from a work injury.
The plaintiff lodged a claim for compensation on 18 February 2011 for a left shoulder injury sustained at work on the 30 September 2010. The plaintiff ceased work on 5 October 2010. The claim was accepted and compensation in the form of weekly payments were made.
The plaintiff lodged a claim for impairments benefits on 14 March 2012 and liability was accepted for:
· left shoulder
· psychiatric condition
Liability was rejected for the cervical spine. It was accepted by the parties that I am not required to consider the cervical spine rejection as part of the hearing of this claim.
By written notice dated 18 December 2012 the plaintiff was notified of the decision to terminate her payments of compensation with effect from 30 March 2013 by reason that the plaintiff had been paid a total of 130 weeks and she has a current work capacity or if she has no current work capacity, then the same is not likely to last indefinitely.
The plaintiff’s Statement of Claim pleaded injury caused by work or that work was a significant contributing factor “to the aggravation, acceleration, exacerbation, and/or deterioration of pre-existing injuries” and the particulars of the injury included, “secondary psychological condition, including but not limited to anxiety and depression”. In the carriage of the proceeding before me injury in the primary sense was argued despite some errant references to recurrence and aggravation. It is upon the principal ground of the mental injury caused by work that I have considered the evidence and arrived at my decision.

The Legislative Framework and its relevance

In accordance with the Accident Compensation Act 1985, an injured worker is entitled to receive compensation in the form of weekly payments of compensation after the expiry of the second entitlement period (130 weeks) if he/she has “no current work capacity” and he/she is likely to continue indefinitely to have no current work capacity. The existence of a work capacity is often informed by opinions in relation to the availability of suitable employment. In this proceeding although there was material referred to and relied on by the defendant and derived from vocational assessments undertaken of the plaintiff, it was only to a very limited extent that the plaintiff was interrogated about suitable work.

The definitions of “current work capacity” and “no current work capacity” are contained in s 5 (1) of the Accident Compensation Act 1985 and are expressed as follows:

“current work capacity”, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
“no current work capacity”, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment;

“Suitable employment” is defined in s 5 (1) of the Act as well and, in the following language:
“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker’s pre-injury employment; and

(iii) the worker’s age, education, skills and work experience; and

(iv) the worker’s place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether –

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market.

The inclusion in the definition of (b) (ii), was introduced by way of legislative amendment, and in effect provides that no regard is to be taken of whether “the work or the employment is of a type or nature that is generally available in the employment market”. Counsel for the defendant in the course of his final address reminded me of the point that is as well reflected in the Minister’s Second Reading Speech to the Parliament when he said;[1]

“The references to ‘suitable employment’ throughout the act were always intended to capture a wide range of employment, vocational training and education arrangements through which workers may be returned to gainful employment. This concept has been obscured through restrictive interpretation by the courts of what suitable employment entails, most recently in the case of Smorgan Steel Tube Pty Ltd v Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the act, including the common-law economic loss gateway and return-to-work obligations”.

[1] Minister for Workcover – Mr Holding – Legislative Assembly 10 December 2009, page 4625.

In Smorgon Steel Tube Mills Pty Ltd v Majkic[2], to which the Minister referred in his Second Reading Speech, the Court of Appeal (Buchanan JA with whom Kellam JJA and Robson AJA agreed), said:

“I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of individual worker, who is incapable of performing his normal work.”[3]

….

The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment, and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s 134AB (38) (f). The definition does not require the second step to be taken.”[4]

[2] [2008] VSCA 230.

[3] Paragraph 10.

[4] Paragraph 11.

In Barwon Spinners Pty Ltd & Ors v Podolack[5] the Court of Appeal said:
“The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; and hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the workers incapacity and, of course, preinjury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker's place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing suitable employment for a worker resident in Melbourne. The expression “whether or not that work is available” emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is “suitable employment”, whether or not the job is currently available”.[6]
[5] [2005] VSCA 33.
[6] Paragraph 25.
In Manthopoulos v Spencwill Nominees Pty Ltd His Honour Magistrate Garnett provided an extensive and useful review of a number of the applicable authorities in this field including also his decisions in Erwin v Tabro Meats Pty Ltd[7] and Findlay v Franklins Ltd[8]. His Honour said that when considering whether a worker has a capacity for suitable employment, a “degree of realism” is required to be applied having regard to all the circumstances of the case. I agree with His Honour.

Onus

[7] 9 September 2010.

[8] 19 October 2010.

The effect of the decision of the Court of Appeal in Giankos v SPC Ardmona Operations Ltd[9] is that the defendant has the evidentiary onus to adduce evidence of the existence of suitable employment options open to Ms Harrison and Ms Harrison has the legal onus to establish that no suitable employment exists and therefore she has “no current work capacity” as defined in the Act.
[9] [2011] 34 VR 120

In regard to the evidence adduced by the defendant of suitable alternative employment it has gone to some effort to review and identify possible employment opportunities, However, I need to determine the extent of realism they present in order to prevent any unfairness against Ms Harrison should the positions in reality not comprise suitable alternative employment because they cannot be realistically performed by her because of the her limitations.

Causation of injury

I have previously made reference in published decisions to the assistance provided by Koorang Cement Pty Ltd v Bates[10] and Devonfield Enterprises v Jones[11]. In Koorang, Kirby P said (Sheller and Powell JA concurring) referred to the “abiding problem of causation” and said in the following extracts that follow at [461 to 464]:

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
For a time, a view was propounded that the formula “results from” involved some notion of proximate relationship between the relevant injury and the subsequent incapacity or death….
Certainly, the notion that “results from” imports an idea of causation limited to the immediate proximate cause of incapacity or death, has been disapproved…
The importance of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death “results from” the impugned work injury…is a question of fact to be determined on the basis of the evidence, including where applicable, expert opinions…. a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection, But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised [in Woolworths Ltd v Allen NSWCA unreported 25 May 1988], to the statutory formula and to ask the question whether the disputed incapacity… “resulted from” the work injury which is impugned”.
[10] (1994) 35 NSWLR 452
[11] [1995] TASC 113

There should not be anything controversial or remarkable about the statements expressed by Kirby P in Koorang. The approach was adopted in Devonfield. From the defendant’s point of view, Devonfield is an exemplar of the approach urged by Kirby P in Koorang, with the particular result arrived at in Devonfield on the peculiar facts of the case expressed by the Underwood J at [19] in the following terms:
“The question the learned Commissioner was required to ask and answer was whether he was satisfied upon an evaluation in a commonsense way of the causal chain that the relevant incapacity resulted from the injury sustained on 9 February 1995. Had he done so the only answer reasonably open was that the incapacity on and after 17 May 1994 did not result from the incident in the butcher’s shop on 17 May 1994. Upon his finding of primary facts the respondent was physically fit for normal duties when he returned to work on 26 April 1994 and had he not lost his employment through some industrial dispute, he would have remained at work after 12 May 1994. On 17 May 1994, whilst lifting a hindquarter of beef the respondent suffered what might be called a novus actus interveniens. The intervening event was the cause of his incapacity on and after that day and in that sense, the incapacity in respect of which the respondent claimed workers compensation did not result from the injury on 9 February 1994”.
Guided by these principles and adopting a commonsense approach to the matter I am satisfied that the plaintiff has established a prima facie case of an incapacity to undertake suitable employment. I am not satisfied that the defendant has discharged its obligation in the provision of the vocational assessment evidence such as to give rise to the possibility of the existence of suitable employment for the plaintiff. If I am wrong about this then and the defendant should be regarded as having identified suitable employment for the plaintiff then the question becomes one of whether the plaintiff has discharged her obligation to establish on the balance of probabilities that she does not have the capacity to undertake the employment identified by the defendant therefore rendering it unsuitable? If the question arises in this way, I would be satisfied on the balance of probabilities that Ms Harrison has discharged that burden based on the facts and the reasoning that follows.
The plaintiff is aged 57 years. She was born in Camperdown. She completed schooling to form IV. She commenced employment in retail with Myer and held a number of retail positions thereafter including work in a news agency, a coffee shop and a photographic laboratory. She had a period of time substantially involved in machinery and cutting work associated with an upholstery business. That business was established by her then partner and subsequent husband. They married in 1980 and moved to Greensborough. Their marriage ended unhappily. A pregnancy resulted in the tragedy of a stillbirth. Thereafter the plaintiff had a number of positions and eventually settled into work of a type that would see her through to the time of her work injury. She secured employment with a company performing work cutting shade cloths and stitching of the same and then as a machinist/ upholsterer at Kendall Furniture. She took up a position with theatrical supplies as a machinist for 5 to 6 years and then as an inspector with INC Fabric for 9 months.
She suffered an injury to her low back in January 1995 and saw her general practitioner, Dr Cheung. She was referred to an orthopaedic surgeon. She said she had some short period of time off work and returned to light duties and eventually returning to full-time duties. She commenced employment with The Staging Company sewing and cutting as a machinist for some 4 or 5 years. She commenced with the defendant in 1999 and remained in employment with it until 2010. She has not worked since 2010.

Personal Circumstances

The plaintiff told me of a childhood of separation and loss. She said her mother left her when she was an infant of just 2 years of age and they subsequently reunited when she was aged about 12. She said she was then sexually abused by her mother’s then partner.
She said she met her future partner Chris Molloy whilst she was working at Kendall Furniture. She said in 2006 her relationship with him ended. She has endured the death of her brother from bone cancer.
She has been prescribed Zoloft[12] on and off but reasonably regularly and said she saw someone for counselling but on a limited basis no more than three occasions but “it was no help particularly”.
[12] An anti-depressant
A Mental Health Assessment was prepared in 2008 by Dr Cheung.
Ms Harrison was asked about her consumption of alcohol by counsel. She said she does not do a great deal of drinking on weekdays but she said she consumes full strength beer, mixed drinks, “wine with friends on weekends” and she smokes perhaps “15 ciggies a day”.
She said a fire broke out above a shop in which she was living with Molloy in 1993 and she lost everything. She said this was a quite stressful period. It must have been a significant traumatic event in her life.
In regard to her duties with the defendant she said she worked with all sorts of fabrics and all sizes and weights. She described 6 to 9 metre pieces of fabric that she was required to repeatedly reach back over her left shoulder to take hold of and drag forward because the needle of the machine was also located to her left side. Her work hours were on average 30 hours a week Monday to Friday. She was designated as a “casual” throughout the period of her employment, although as a matter of law, she would be regarded as a permanent employee. She said on an average work day she would spend between 75 to 80 per cent of the time in front of the machine although she said there were “a load of other processes involved”. She said that prior to the experiencing injury demands at work were very great and there were a couple of “very big contracts”.
She said she first noted left shoulder pain in 2010 however could be no more specific than to say she thought it came on prior to or at the middle of the year. She took ordinary painkillers. She said she mentioned her pain to Daniel Nichols the son of the Managing Director who recommended neurofen. She said Daniel knew she was in pain as she had told him that her shoulder was “causing me grief”. She said neurofen helped a bit. She said she didn’t see a doctor at the time because she knew that “if I didn’t I wouldn’t be paid”. She was after all being told she was a “casual”. She said the pain had become so great that she was crying at work and on one occasion Daniel Nichols suggested she make an appointment with his physiotherapist, which she did on 30 September 2010. She said the physiotherapist suggested she consult her general practitioner for a referral for imaging to be done and Dr Cheung did so. She underwent an ultrasound. She said her employer knew she was having an x-ray. She said it was revealed she had suffered a tear in the rotator cuff and she was told to rest it. She was off work. Whilst off work she noticed an advertisement for her position by the defendant published in the Herald Sun on 13 October 2010. She said she was shocked. She said but for the injury sustained she had every intention of continuing in her employment.
The plaintiff said she continues to take painkillers but only very occasionally because they cause stomach issues. She said she takes Panadol from time to time and as well she is prescribed 200 mg of Pristiq[13] taken daily for anxiety and depression. She suffers high blood pressure and takes medication for it together with medication for high cholesterol. She says her memory and concentration “is not as good as it used to be”. She said she has experienced perhaps 6 or 12 panic attacks since the injury and these last from 30 minutes to an hour.
[13] An anti-depressant

She said she does general house work and reads and she does the washing and folding but is unable to put heavy items out on the clothesline. She can only hold a kettle by keeping it pressed close to her side. She demonstrated the action and it was awkward looking. She described the pain in her shoulder as not severe but if she did anything she said she would feel the pain later on. She said she experiences dreams that wake her at night and they are of her at work with the defendant and “of fabrics everywhere” and she seldom sleeps through or has an uninterrupted night of sleep.
She said she became pregnant in 1999 but it was terminated.
In 2008 she fractured her right wrist after hitting a housemate in a domestic dispute.
Prior to 2010 she said alcohol was not a problem. She said she would have a drink at dinnertime, usually a beer. She denied ever attending work drunk.
She says her drinking has increased substantially since the injury and she now would drink a half-dozen stubbies a day or sometimes 8 and this would commence at about 4 or 5pm of a day.
She said she has applied for many jobs, most of which have been facilitated through Centrelink but none have come to fruition.

Cross-examination

The plaintiff agreed that she had had many unhappy events in her past life and these have been disclosed to various doctors she has consulted. She cavilled at the suggestion that she was an anxious person describing herself instead as “a bit of a worrier”. The mental health plan prepared by Dr Cheung describes alcohol and anxiety symptoms as strong features. She accepted she has been on antidepressants for many years.
The plaintiff was referred to a report dated 24 August 2011 by Dr Das psychiatrist whom she saw on referral by Worksafe for the defendant. He took a past history of depression in her early 20s and attendance on a counsellor and that she was on a course of antidepressants for two years. In 1993 she apparently again suffered reactive depression probably resulting from the fire beneath her then premises. She suffered from alopecia although the plaintiff said she only suffered it once there appears from the records evidence of a recurrence of the condition.
Dr Cheung has been the plaintiff’s general practitioner since about 1994. The plaintiff was taken to a series of historical clinical notes of entry in relation to her treatment and these include:
·     22 July 1996 a recorded past history of depression;
·     22 January 2001 recording an event of alopecia, stress, and weight loss
·     31 May 2001 a note regarding relationship problems and a prescription of Zoloft.
As well entries for 2 July 2001, 27 August 2001 and 16 November 2001 relate to stress and record prescriptions for Zoloft. Entries for 6 May 2002 and 26 August 2002 also record prescriptions for Zoloft. On 2 September 2008 there is a record of an incident on 31 August 2008 involving the plaintiff having punched her housemate. Ms Harrison said that as a result she was off work for about 6 weeks and in plaster.
She was asked whether she was drinking heavily in 2008. She said she was never “falling down drunk”.
25 October 2008 Dr Cheung made a note on consultation that the plaintiff is engaged in no other activities than those of “drinking and smoking”.
Mr Miles put to Ms Harrison that the evidence of both Daniel Nichols and Kevin Nicolls would be that when she commenced employment her work was very good but in the last few years of her employment her performance deteriorated. She disagreed. She also denied the suggestion that she was often unavailable for work when it was offered.
It was put to her as well that over the last two years of work her housemate would telephone the employer from time to time and say she was unwell because she had not been taking her antidepressant medication. She did not agree. I note that no evidence was adduced from either Daniel or Kevin Nichols in support of this contention. When it was suggested to Ms Harrison that she would attend at work smelling of alcohol she said “possibly on a couple of occasions”.
The plaintiff denied that at the last couple of Christmas dinner events she attended she was “semi drunk” or that that in the last couple of years of work she would take breaks longer than permitted. Again no evidence was adduced from either Daniel or Kevin Nichols of longer breaks being taken.
The plaintiff disagreed that in the last few years of work she encountered difficulty comprehending the instructions contained on orders and she did not agree that she broke down crying on occasions for no reason. She said she had cried because of pain whilst at work.
The plaintiff was taken to further entries contained in the clinical record of Dr Cheung including his note of 30 September 2010 identifying her having come to work saying that her left shoulder was sore. The plaintiff said that the pain came on in the morning and she said to Daniel Nichols that “something was wrong”. It was suggested that two days later she came back to work and said the shoulder was painful and that it was then that Daniel Nichols said she should “go see a physio”. Ms Harrison disagreed that the suggestion to see a physiotherapist was made on 30 September 2010. It was put to her that the employer’s record identifies that she attended work on 4 October 2010 and worked 4 hours and that she attended work on 5 October 2010 and that on 6 October 2010 she phoned in sick. The plaintiff said that her employer knew that she was not coming into work as they had received a fax from the physiotherapist.
The plaintiff was taken to Dr Cheung’s notes including an entry for 8 February 2011 (that is some few months after the injury) and his note of her having stopped taking Zoloft however she continued to consult Dr Cheung about her shoulder and to obtain necessary certificates in the ensuing period.
It was suggested that the Dr Cheung’s records show the plaintiff’s shoulder was improving and the plaintiff agreed but added that it made sense to suppose it would because she was not using it in the way she had at work. She said that “over a few years it has improved”. A consultation on 9 May 2011 records a note by Dr Cheung that, among other matters it was “better almost free range of movement”.
An entry dated 3 August 2011 records a prescription of Zoloft. It was at about this time that the plaintiff agreed it had become necessary for her to move residence and she moved back into accommodation with Chris Molloy. The entry appears as well to relate to the man with whom she had previously shared accommodation and of her feeling stressed and hence the recommencement of Zoloft (50 mg). The clinical record for 17 October 2011 records Dr Cheung increasing Zoloft to 100 mg. On 10 November 2011 the entry made by Dr Cheung notes the plaintiff having moved back to Chris and “ex-housemate agro/anxious”.
The plaintiff agreed that since suffering a work injury she had seen just once psychiatrist namely Dr Hogan. She agreed that she had not been referred to a specialist for her shoulder. She said she received a referral to a sports physician who suggested hydrodilation but she agreed she has not seen an orthopaedic surgeon or any specialist relating to her shoulder and that she has had but one x-ray and ultrasound in 2010.
She was taken to an entry by Mr Simm, Orthopaedic Surgeon dated 31 January 2017 to the effect that her condition has not changed since her attendance on him in 2015 and that “She is aware of weakness rather than discomfort around the left shoulder each day. She has a good range of movement”. She agreed this was an accurate description. She agreed that it appears similar in descriptions provided by her to other doctors by way of attendances at medicolegal reviews.
The plaintiff confirmed that she drinks 6 to 8 stubbies of heavy beer during the course of each day. She said she is right hand dominant.
Ms Harrison was asked about efforts to look for work beyond the jobs referred to earlier and facilitated by Centrelink. She said she dropped her resume (which had been prepared for her) off at a chicken shop and also approached someone at Coles who told her that they were not presently recruiting for work but to try online but this proved impossible as she said she is not computer savvy. She said her motivation for pursuing employment opportunities is that she hoped she “could try and do some type of work”. She was asked about an apparent reference to having applied for work as a “limited personal carer for 1 ½ hours a week” but this was not something she remembered doing but when asked if she could do such work she said, “maybe I could do that type of work” but she modified her response by pointing out that she rarely drives and in fact ventures out of her house on very few occasions other than very for a rare visit to the hairdresser. She has arthritis in both the fingers of each hand at predominantly in the fingers of her right hand.
Ms Harrison was asked about a hopper filler job position the subject of a vocational assessment and she did not believe she could perform that work because of its repetitive nature and she feared that to do so would likely cause damage to her shoulder. She said she can bend and squat and walk and her car is currently registered.
There are references made in the records to historical and possibly occasional continuing use of marijuana but the plaintiff said its predominant purpose is to aid her appetite and sleep. She says she has had weight problems that has become more pronounced since the work injury. In regard to her weight, on 14 February 2009 Dr Cheung noted that 1 ½ years before the plaintiff ceased work she had lost weight and she stood at 47 kg. It was suggested to her that she has had problems maintaining a healthy weight well prior to the injury. She agreed and added “but not to the current extent”. She was taken to a health check report dated 22 April 2008 from Dr Cheung noting the necessity for her to eat more in order to gain weight.

Dr Cheung

Dr Cheung testified. He is a qualified General Practitioner and has been in private practice since 1994. His opinion is that the plaintiff’s shoulder has resolved. He acknowledged that going back as far as 22 July 1996 his note recorded the plaintiff suffering from pre-existing psychiatric issues.
Dr Cheung was referred to the report of Dr Das of August 2011 setting out the plaintiff’s psychiatric history.
Dr Cheung’s note of entry of 22 January 2001 related to a consultation for psychological reasons and on 31 May 2001 he recorded a prescription of Zoloft 50 mg, apparently stemming from issues associated with Ms Harrison’s partner. His note of 6 May 2002 recorded consideration given to reducing Zoloft to 25 mg for 2 weeks with a view to its ultimate cessation. Sometime later on 26 August 2002 the plaintiff was still on Zoloft (50 mg) twice a day. On 15 August 2008 Dr Cheung again prescribed Zoloft and noted by a connection with alcohol consumption and anxiety. Dr Cheung was directed to his entry of 25 October 2008 in which he recorded that the plaintiff was not engaged in any activities other than drinking and smoking. It was put to him that from 15 October 2008 onwards the plaintiff returned to being prescribed Zoloft. He agreed that up until 2010 the prescription given for Zoloft was regularly, if not episodically, prescribed. Commencing in June 2010 Dr Cheung increased the dosage of Zoloft to 100 milligrams.
On 14 February 2009 Dr Cheung recorded the plaintiff having lost weight and she was recorded as weighing 47 kg.
An entry for 8 February 2011 recorded the plaintiff was off Zoloft but on 3 August 2011 the she was again prescribed the drug and a stressor noted by Dr Cheung for its prescribing was in the context of accommodation issues.
On 10 November 2011 Dr Cheung recorded that the plaintiff had moved back with Mr Molloy and he made a note referencing the “aggressive housemate” but that the plaintiff’s shoulder was better with a full range of movement.
Dr Cheung said the plaintiff presents with one of the most severe cases of depression he has seen however he feels hampered in helping her because she will not agree to see anyone.
In re-examination Doctor Cheung said the plaintiff was currently prescribed Pristiq 200 mg per day. He said the dosage is at the highest end.
Dr Cheung said that from a physical standpoint the injury has resolved and the plaintiff is capable of suitable employment but that the sequelae has included the development and progression of a severe psychological impairment that makes her capacity for employment non-existent.

Dr McQuillan

The plaintiff adduced evidence from Dr McQuillan, Consultant Psychiatrist. She assessed the plaintiff at the request of the plaintiff’s solicitors and produced a report dated 3 June 2016 (PCB[14] 319-323). In relation to the plaintiff’s history of anxiety she said she was functioning well prior to her work injury. She reported that alcohol consumption intake has been regular since 2010. Dr McQuillan produced a second report dated 2 February 2017 (PCB 324-327). In addition she was referred to the report of Dr Strauss dated 9 February 2017 (PCB 316) and the contrary opinion expressed by him with which she disagrees.
[14] Plaintiff’s Court Book
Dr McQuillan had been furnished with a number of reports from the physiotherapist who had treated the plaintiff and from the plaintiff’s general practitioner although she had not been furnished with Dr Cheung’s clinical notes. She accepted it would have been advantageous to have had them provided.
In cross-examination it became evident that Dr McQuillan had not been furnished with a comprehensive a history of the plaintiff’s prior history or the extent of her prescribed medication of Zoloft in the period before the onset of the work injury. As well Dr McQuillan’s opinion as to the level of the plaintiff’s alcohol use was at variance with the evidence I heard particularly from Dr Cheung and her classification of the same as not reaching the level of dependence is not one I share.
It was suggested to Dr McQuillan that the clinical entry of notes made by Dr Cheung and the chronology in respect of the same identify that the prescribing of Zoloft in February 2011 and the plaintiff returning to Zoloft in August of that year with the dosage increased from 50 to 100 mg in October 2011 arose in the context of matters otherwise than the work injury.
In cross-examination Dr McQuillan accepted that she relied upon the accuracy of the history given to her by the plaintiff. I am satisfied the history is in some respects incomplete in that Dr McQuillan laboured under the impression that the plaintiff was not taking depression medication prior to the injury and in particular since approximately October 2008 to the date of injury was prescribed Zoloft. She was however not dissuaded from her opinion of the current state of the plaintiff by dint of that information.
She was taken to the detailed clinical entries of Dr Cheung including a history of weight loss prior to the work injury as well as subsequent to it.
The clinical records indicate that the plaintiff ceased Zoloft on 8 February 2011 that is 4 or 5 months after the date of injury and there was nothing noted by way of a psychiatric nature until 3 August 2011 as indicated by the absence of Zoloft in that period. The plaintiff was prescribed Zoloft again on 3 August 2011 (50 mg) and the note of entry such as it is relates to that prescription appears be based on stress due to the man with whom she shared accommodation. On 17 October 2011 the plaintiff’s mood was recorded as no better and Zoloft was increased to 100 mg and it was noted that the left shoulder was getting better. This is the entry that also includes the reference of the plaintiff moving back to Malloy and “housemate Aggro /anxious” and “shoulder better”. It was suggested to Dr McQuillan that the situation of the plaintiff going off Zoloft in February 2011 and going back on it in August 2011 together with an increased dosage in October 2011 is in the context of matters otherwise than the work related injury.
Dr McQuillan expressed the view that the plaintiff may have suffered a recurrence of the previous mental condition.

Chris Molloy

Chris Molloy testified. He shares a house with the plaintiff. He has known the plaintiff for approximately 30 years. They were married but separated on good terms and now live together. He said the plaintiff came to need somewhere to stay and he offered accommodation. He said the plaintiff came to live with sometime in 2011 but he could not remember precisely when.
He said they first met at Kendall Furniture “years ago” when he was a salesman. He said that her mental state prior to their separation was fine and she displayed a full range of ordinary everyday social and domestic activities suggestive that she was coping well with her life despite what affects her historical travails may have been impacting on her. He described her consumption of alcohol then as average and that she might have a beer whilst making dinner. He said he was never aware of her intoxicated when he came home. At social functions her intake of alcohol intake “was fine perhaps and couple of cans when we got home” and he was not aware of her ever being intoxicated at work.
He said that after the fire destroyed their belongings “we had to start again and I was working very long hours and was frequently away and she believed I was having an affair”. He said that later on she appeared to be “all right and getting through it (the separation) all right”.
He said he did not observe any increase in the plaintiff’s alcohol intake following their separation.
He said they attended work functions such as Christmas parties prior to their separation. He testified that subsequent to the work injury in 2010 the plaintiff became more reclusive and her reclusiveness has become accentuated. He said she rarely leaves the house. She might perhaps try to get a haircut. He said he has driven her to the last 7 or 8 eight medical appointments. He has observed panic attacks when he is driving her.
In cross-examination Molloy said he was aware that there had been periods of prior depression but “for a short time only” and he could only recall the period following the fire. He said he was unaware the plaintiff had been prescribed antidepressants as a result of her belief of his affair with a colleague prior to the end of their marriage.
He said he visited the plaintiff following their separation “from time to time”, perhaps “once a fortnight or every three weeks on a Sunday morning” and would stay perhaps 30 or 40 minutes. He said he was not aware of the plaintiff having any problems with the housemate named “Jamie”.

Daniel Nichols

The defendant adduced evidence from Daniel Nichols the manager of the defendant. He said he has been the manager for the last 12 or 13 years and his father Kevin Nichols is the owner of the business. He described the plaintiff “as one of the best machinists I’ve ever seen”. He said there was a slow but observable decline in her work standards and a “massive decline” approximately 5 months prior to her finishing up.
He testified that there were several occasions when the plaintiff would break down in tears as she was unable to work out how to complete a worksheet. He described this occurring perhaps “every couple of weeks”. He said however that matters were worked out once the job order was explained to the plaintiff.
He said the plaintiff’s attendance was sporadic in the last couple of years. He said he raised this with her and she would invariably attributed her absence to stomach complaints and headaches. He described these as the “regular excuses”.
He recalled her attendance at Christmas dinners and when directed to in particular 2008 and 2009 he said the plaintiff arrived late and she was “clearly affected by alcohol, her speech was slurred and she was wobbly”.
He said he never saw the plaintiff drink at work and he said she sometimes might describe the previous day as involving “a big night out” but it never appeared to affect her work. He said she was pretty open with her life and he knew she was on “depression medication”.

In cross-examination Daniel Nichols was directed to handwritten work records maintained by the defendant recording days and hours of work for the plaintiff to rebuff the reliability of his evidence that the plaintiff’s work ethic was increasingly sporadic in terms of reliable hours and attendance. He maintained his opinion that the plaintiff’s attendances were sporadic. I disagree.
He said he was aware that the plaintiff had a painful left shoulder and he was aware prior to her finishing at work that the shoulder was causing her problems and he agreed he had recommended to her medication by way of analgesic pain relief.

Kevin Nichols

Kevin Nichols testified. He is the manager and owner of the defendant. He established the business 22 years ago. He employed the plaintiff as a seamstress.
He described the plaintiff as encountering difficulty in performing tasks that she had done easily in the past. He said that another person identified as “Charles” was hired to perform a variety of tasks associated with fabrics but who “effectively assisted the plaintiff with her workload”. He said this did not appear to help the plaintiff other than perhaps marginally and instead the defendant found that the plaintiff was struggling to comprehend day-to-day manufacturing processes. He said she would cry. She might say, for example, that the task allocated to her was “too hard” or that she had not done it before which Mr Nichols said was not the case as the processes involved were repetitive and learned by the plaintiff over the course of many years.
He said he knew the plaintiff drank. He said he could smell alcohol on her breath almost “all the time”.
He described Ms Harrison’s work attendance as “poor”. He said “she basically decided when she would come in” despite “us having plenty of work to keep her going”.
He was asked about the Christmas dinners held in 2008 and 2009. He said in respect of the 2009 dinner that the plaintiff arrived “drunk and was slurring her words”. He said she was “loud”. He said she went home in a taxi and attended the dinner alone.
In cross-examination Mr Nichols acknowledged that Ms Harrison’s work was of such a high level that he “poached” her to his business those many years ago.
He disputed that the plaintiff was punctual or reliable and that her commencement was invariably at 10.00am referred to in the sign in book was not to his recollection as reliable as the evidence in the book would suggest.
He said that despite her problems the finished product remained very good.

Dr Jager

The defendant called Dr Jager, psychiatrist. He produced reports dated 17 April 2014 following examination of the plaintiff on 28 November 2014, 28 November 2014 and 30 December 2015. He took a substantial history in relation to her personal circumstances including the separation of her parents when she was a toddler after which she spent a number of her formative years with her father coming into contact with her mother again when she was aged 12 and as well subsequent sexual abuse. She has had a history of violent personal relationships including when as a teenager and was in a de facto relationship a period of time, married and suffered a stillbirth, endured the end of her marriage due to abuse and alcohol and drugs on the part of her spouse and a subsequent lengthy defector relationship from the age of 28 through to the age of 47. Dr Jager recorded her consumption of alcohol prior to the work injury as “two stubbies per night” but since “2012 she has drunk two slabs of beer per week”. Doctor Jager recorded that the plaintiff’s perception is that her anxiety condition has worsened as her physical injury has improved. His opinion is that her heavy alcohol consumption and adverse developmental history were the other main causes of her anxiety. He noted that her unemployment contributes to her emotional distress.
Dr Jager noted a strong association between anxiety and depression and alcohol abuse as well as illicit substance abuse.
Dr Jager said that the plaintiff’s belief that her physical injury has improved as her anxiety has become worse provides “an explanation that the anxiety is not caused by the shoulder injury.” He noted that her unemployed status is a stressor and that the alcohol abuse is a strong factor promoting the anxiety condition together with cannabis abuse as possibly playing a role. He noted a pre-existing generalised anxiety disorder that has waxed and waned over the years. He reported that in the absence of the work injury he expected that her anxiety condition would have continued to wax and wane.
In the further report dated 28 November 2014 described as a “supplementary report” Dr Jager referred to a report of Dr Kornan dated 29 October 2014 who had expressed the view that employment was “still a significant contributing factor to that condition”. Dr Jager said it was unclear from the report which condition Doctor Kornan was referring to. Dr Jager went on to state that Doctor Kornan’s findings did not alter his opinion as to causation that the mental condition suffered by the plaintiff is a pre-existing condition and has not been exacerbated by the work injury.
In the report dated 30 December 2015 Dr Jager noted the plaintiff’s alcohol consumption had changed since he reviewed her in March 2014 to that of drinking “6 stubbies or cans of beer a day and occasionally smoking marijuana”. He found that since his report dated 17 April 2014 the plaintiff’s generalised anxiety disorder is under better control and it should be considered to be in partial remission. He said it more accurate to describe the plaintiff as suffering from “alcohol dependence”. He referred to potential cannabis abuse. He concluded that his opinion is that the plaintiff is fit to undertake “at least half-time employment undertaking tasks not requiring intense concentration” although the identification of tasks that might fit this restriction is not straightforward other than perhaps by exclusion of employment that he categorised as requiring intense concentration such as a pilot.

Dr Strauss

Doctor Strauss testified. He said that in his opinion the plaintiff’s physical injury having resolved, the psychological implications for her condition cannot reasonably be contended to be work-related. Dr Strauss furnished 6 reports based on examination of the plaintiff in the period from 2013 until February 2017 and in this sense, and other than for Dr Cheung, he has seen the plaintiff across the longest time. In his most recent report and expressing his opinion as to the plaintiff’s current state he wrote:
“There is no doubt that she continues to suffer from generalised anxiety disorder with secondary depression and I believe, on the basis of her history, presentation and the information available to me, that her psychiatric problems are long-standing and primarily related[15] to her background history is detailed in my past reports.
I do not believe that her shoulder injury has been severe, significant or long-standing and I do not believe that it is an ongoing cause of her psychiatric problems. There may have been a brief exacerbation of her anxiety and depression when she had shoulder problems but it seems from all the information available to me, that her shoulder condition has not become a permanent issue and I do not believe that currently her psychiatric problems are work related to any significant degree.
Her psychiatric problems which are moderately severe are related to her background history and her personal situation.
I suspect that she will always suffer from significant psychiatric problems and I would urge that her compensation process be resolved as quickly as possible because it does upset her.”
[15] All underlining added
The opinions expressed by Dr Strauss were not significantly challenged in cross-examination but he did accept that the litigious environment and workcover process in which the plaintiff is embroiled plays a part in her ongoing mental state. In regard to the matter of the administration of the worker’s claim I note that any feature or manifestation in the plaintiff because of what was once labelled “litigation neurosis[16]” can be misleading and, for my own part, would prefer to adopt the reasoning that if a factor contributing to an ongoing incapacity on the part of a worker includes the litigation associated with a claim for a work related injury and it can be seen as having stemmed from the original injury then prima facie there is no sound or logical reason to exclude it as part of the mix.

The physical injury

[16] See Hruskar v Champion Meat Packing [1974] 4 WCBD 408

I am satisfied on the balance of probabilities that the plaintiff has recovered substantially from the physical effects of her work injury. The injury was relatively simple. There is some basis in the reports to find that the plaintiff has fully recovered from the physical effects but I think there is a more persuasive basis in the material when taken in conjunction with the plaintiff’s oral evidence to find that she continues to labour from some residual physical impediment to full functional use of her left shoulder. I acknowledge that the opinion of Dr Cheung is that that the plaintiff made a good recovery from the effects of the injury. In fact as far back as his report to the plaintiff’s solicitors of 10 March 2011 he wrote that:
“Ms Harrison suffered from an injury to her left shoulder due to an intra-substance tear of the supraspinatus. She did not require any specific treatment, other than rest. I believe her previous employment was a contributing factor. She is currently not working, however I believe that she has a current capacity for her normal work. Her prognosis is good.”
Dr Cheung’s current opinion has departed from the opinion he held in 2011 due to the plaintiff’s mental and not physical injury.
Dr Baker is a specialist in Occupational Medicine and he furnished a report to the defendant’s solicitors dated 22 April 2013. He examined the plaintiff on the date that his report bears and he concluded that:
“She stopped work because of pain and left shoulder. However, I can see no reason why from the assessment I undertook on 22 April 2013, that she should not return to simple work within her skill level. I consider that she would be able to return to her pre-injury duties or similar duties if they are available.”
Dr Davison, Occupational Physician prepared a report at the request of the solicitors for the defendant dated 19 February 2017. In commenting on the plaintiff’s work capacity referable to a report that had been made of potential employment prospects for the plaintiff, he wrote that although she did not have the capacity for some positions identified, nonetheless, in respect of a print marketing business position he considered such employment or job function “would be suitable for the worker to undertake.”
I also received into evidence a variety of reports from other doctors who have seen the plaintiff such as Mr Moran, Orthopaedic Surgeon who in a report dated 29 August 2011 when commenting on Ms Harrison’s capacity to undertake work identified in a vocational assessment report said:
“Ms Harrison should be fit to return to work in the suitable job options as set out in the Vocational Re-Educational Assessment Report from Work Able Consulting 30 .6. 11 (apart from the work as a gaming attendant) 3 to 4 weeks after having a hydro dilation of her left shoulder.”
For the sake of completeness, if not for its probative worth, Dr Reid, a General Surgeon, in a report to the employer’s insurer dated 10 May 2012 following examination of the plaintiff on that same date reported on the plaintiff’s prognosis as follows:
“It is expected that she would make a complete recovery. This may take about another year. The impact of the injury on her occupation is that she is not fit for her pre-injury work. She is fit for work not involving lifting the left arm above shoulder level and not involving carrying more than 2kg with the left hand. She is able to perform the activities of daily living. However, she has some difficulty in activities which involve carrying objects with an outstretched hand.”
Dr Miller also prepared a report dated 29 June 2012 at the request of the defendant’s insurer following examination of the plaintiff on 28 June 2012. He noted among other matters that:
“The worker is capable of working only with restrictions recommended above. Provided these restrictions are observed she would be capable of a graduated resumption of her preinjury hours”.
Mr Simm, Orthopaedic Surgeon in a report dated 31 January 2017 and prepared at the request of the solicitors for the defendant, wrote in respect of the plaintiff’s capacity for work following on examination that:
“She could do light repetitive work at bench or desk height. She could not do repetitive activities with her arm away from her body were overhead…
“With appropriate constraints she would be able to do full-time work.”
The plaintiff was examined by Mr Kossmann, Orthopaedic Surgeon, at the request of the plaintiff’s solicitors on 8 October 2014. As to prognosis he wrote:
“Ms Harrison’s prognosis regarding her left shoulder condition is guarded. She has almost for mobility, however complained of ongoing pain issues when the left arm is outstretched. She is not able to hold onto things properly and drops many things.
In my opinion, Ms Harrison will require conservative treatment from time to time with pain medications and anti-inflammatory’s. I do not believe that physiotherapy or hydrotherapy will alter her present situation. She is also not a candidate for surgery.
Ms Harrison suffered an anxiety attack prior to the commencement of today’s examination and was initially shaking. I was however able to calm her down during the examination. I recommend that she undergoes a psychiatric evaluation and further treatment.
In my opinion Ms Harrison has a work capacity from an orthopaedic point of view, however she suffers from extreme anxiety and depression, anxiety attacks and also seems to have an alcohol problem, which may render her 100% incapacitated. I recommend evaluation by psychiatrist regarding her work capacity.”
I was referred as well two reports from Dr Freitag, a specialist doctor in sport and exercise medicine. He made a report dated 31 October 2014. Although I have read it does not add to the great store of knowledge otherwise before me.

Summary of the medicine

The medical evidence going to the question of whether the plaintiff has made a full physical recovery and is capable of performing her pre-injury duties consist of Dr Cheung, Dr Baker, Mr Hart, Dr Davison and Ms Yamis whereas those who have assessed the plaintiff as having a work capacity for alternative light duties are Mr Moran, Dr Reid, Dr Miller, Mr Simm and from an orthopaedic view only as he expressed himself in his reporting, Mr Kossman.
Having read the medical evidence and listened to the doctors who gave viva voce evidence and paying keen attention to the plaintiff’s presentation in court, I am satisfied on the balance of probabilities, that in relation to the left shoulder injury the plaintiff has a physical capacity to undertake suitable alternative employment but not her pre injury duties. However, in order to determine if the plaintiff has a current capacity or not it is necessary to consider her mental state and I now move on to the psychological and aspects of the plaintiff’s claim for injury.
The diagnosis most prevailing across those equipped to express an opinion is that the plaintiff suffers from an adjustment disorder with anxiety and depression. The question is the extent it is a work injury secondary to the physical injury. Ultimately it is a question that is to be addressed as opposed to the disabling effects of the mental condition. The preponderance of evidence satisfies me that the plaintiff’s mental condition is not good at all and the prospects for her in this regards is not good either. I accept the analysis made by Dr Cheung of his patient of very long standing and recognise his unique position to give the best account of her historical and current presentation.
Much of the defendant’s assault upon the plaintiff’s claim that her psychological condition is a consequential cause of the work related physical injury was to identify common characteristics of her psychological presentation since the injury but that nevertheless beset her prior to the work injury such that I should not be satisfied that the evidence establishes mental injury. Ultimately I have concluded that whilst there are aspects of similar presentation they have manifested themselves quite separately over the years before the work injury occurred and had not caused her the level of isolation and lack of functioning that she possessed as a working woman prior to the physical work injury.
Dr Hogan, a consultant psychiatrist, saw the plaintiff on referral from Dr Cheung and in a report dated 22 December 2013 wrote:
“Ms Jennifer Harrison thus presents with a work injury and ongoing intermittent shoulder pain. She has significant affective symptoms of sleep disturbance, poor appetite, low energy and interest, social withdrawal, occasional panic attacks, impaired concentration and memory, intermittent generalised anxiety, and there is a degree of depression of mood. There is a past history of being prescribed antidepressants over many years. It was difficult to clarify the reason for prescription of such. Ms Harrison was a scant historian.
There are significant ongoing anxiety and depressive symptoms, probably an adjustment disorder with depressed mood in the context of the ongoing pain and limitations of activities. She has been in a difficult position with respect to her work cover claim by not having had specialist referrals (on the history she provides). It would be appropriate to consider a change of antidepressant. I note that she is not in fact complying with a current antidepressant.… It would be appropriate that she had psychological counselling concurrently with antidepressant trials that I am unsure that she would comply was such recommendation.”
In a further report dated 16 February 2014 and prepared at the request of the plaintiff’s solicitors on 16 December 2013 Dr Hogan wrote:
“Ms Harrison describes continuing symptoms and impairment of function from her left shoulder injury. I am unclear from the information available to me what is the current status of her left shoulder injury. I note that Dr Cheung at one point regarded her as having largely recovered from that injury.
On the information available, I could not regard Ms Harrison is presenting with evidence of a personality disorder. She does appear to have suffered with recurrent major depressive episodes and has been on antidepressant medication intermittently since the 20s. She has been prescribed Zoloft intermittently over many years. She said that that medication had been helpful. At the time of my assessment I wrote to Dr Cheung that I considered that she had an adjustment disorder with depressed mood. On reconsideration, I would regard her as having a recurrence of the major depressive disorder precipitated by her work injury, pain and limitation function, unemployment and WorkCover legal matters. I believe that her work injury can still be regarded as the major cause of her present affective symptoms.… I believe the severity of her depressive symptoms is such that she is not capable of sustaining employment either in her previous duties (which I would believe in any event precluded because of her physical injury) or alternative employment”.
Dr Das examined the plaintiff on behalf of the defendant’s insurer on 24 August 2011 and in his report of that date he described Ms Harrison as presenting with a mild adjustment disorder with anxious and depressed mood that was in partial remission. He said that her psychiatric condition was initially precipitated in the context of the sudden loss of her long job within a short period of suffering her shoulder injury and this was further aggravated when she found herself without any treatment support or income for several months. He said however that her reactive psychiatric condition has subsided partially since the injury claim was accepted. He provided a supplementary report on 19 September 2011 but it really added nothing to his first report.

The plaintiff was also assessed on 6 June 2012 at the request of the defendant’s insurer by Dr Rose, psychiatrist who prepared a report of that date. He noted among other matters that her appetite was good “but she has recently lost some weight”. He said that she remains anxious and depressed the presence of panic attacks. He noted a reluctance to leave her house or engage in social activities but his history noted that her social life was limited even prior to the shoulder injury. His report of her intake of alcohol was “one or two drinks of alcohol a day.”
Dr Kornan examined the plaintiff on 6 November 2013 and prepared a report at the request of her solicitors of that date. The history he took referred to her shoulder injury having improved in that she now “had some mobility, and she could lift her arm above her head, but it was still without any strength. There was some pain, and weakness, present every day, but it was a dull pain to her. She felt she had a big careful so as not to injure her shoulder further. She seemed particularly concerned about the lack of strength. She was right hand dominant.” He went on to note that she “had lost weight of about 3 kg, to now wait 50 kg, although at one stage, she was only 46 kg. She was worse now with the shakes and felt she could not stop shaking. She would experience panic attacks, which had occurred about three or four times this year, lasting one or two hours. During these panic episodes, her heart would start racing, and her shaking was uncontrollable. The level of smoking had doubled, where she had gone from smoking half pack a day, she now smoked a whole packet of 25 or 30 cigarettes a day.” He went on to add that “drinking of alcohol had also increased. She stated that she used to have a couple of beers at night, and it might have been even, in fact up to 6 at weekends. She now drank half a dozen cans of stubbies a day, sometimes more. She agreed that she was now drinking about 2 ½ slabs a week. At time she would take analgesic medication with the alcohol. She thought she was hardly leaving the house at all, except when she has to.… She did not want to go out.” In a further report in 2013 he thought her prognosis to be “very poor”. He went on to add that “quite clearly, in my opinion, a psychiatric invalid in the home situation permanently” would prevail. He described her psychiatric ill-health condition as “severe”. In yet a further report of 29 October 2014, in addition to affirming certain matters relating to opinion expressed in his earlier reporting, he wrote that in spite of the past history of factors associated with the vulnerable psychiatric state the plaintiff was nonetheless working for quite some years until her shoulder problems. He added that the plaintiff “was someone who had significant difficulties, but it appears, had not her left shoulder problems occurred, she might well have worked another five to seven years, but it is hard to see who working much longer than that, given the current level of polysubstance abuse.”
I am satisfied that the plaintiff’s current mental presentation is caused by the injury. Its presentation dose of course mirror some elemental features of mental disturbances the plaintiff has experienced off and on over her life. However, I am satisfied that the work injury has caused her mental condition and continues to operate on her such that she is far more reclusive that before the injury. I am satisfied that the consequences of the injury included the loss of her job and together with the manner of her becoming acquainted with its loss by reading a newspaper advertisement for her replacement had a deleterious effect upon her mental wellbeing. She told me it caused her great shock. This event is perhaps even more acute for a person who was described as having an anxious disposition or, as Ms Harrison volunteered about herself, someone who is “a bit of a worrier”. The plaintiff however must take the plaintiff as it finds her complete with strengths and vulnerabilities. As to her drinking there is a conflict as to whether the consumption of alcohol has become more pronounced. Dr Cheung suggested it was not so but the plaintiff thought it had as did Mr Molloy and there are references to an uptake in the reports of Dr Jager and of Dr Kornan.
There is of course the question of the sensible manner in which I am to assess the psychological impacts on the plaintiff of the other unfortunate matters that have beset her life many of which I have already paraphrased. The fact is that a good many of the events have operated on the plaintiff over the course of her working adult life but had not incapacitated her or rendered her the social and emotional recluse whom I observed in Court over the 4 day hearing and who was described by her long standing general practitioner in particular as the patient of his most in need of mental assistance. I have already mentioned that there have been other factors at play many of which have been dealt with in considerable detail in the course of the evidence but I am satisfied that they were managed. They were not impacting her in a debilitating way. I was directed to testimony from the employer that the plaintiff’s reliability for work deteriorated. The plaintiff denied the allegation and Ms Kusiak cross examined the employer on the records of attendance to counter the allegation. There were some absences and these included absences for ordinary illness but I am not satisfied the records paint the picture the defendant would have me accept. I bear in mind that despite the incongruity of the plaintiff being classified as a casual her employer was content to characterise her work as such and hence some latitude must be applied in the ordinary consequence of the application by an employer of such a classification. I am am satisfied that on balance, the work injury to the left shoulder, the loss of job as a consequence, the administration of her injury claim, her reclusiveness and her panic attacks are all causes of her current mental condition and in this sense the work constitutes a material contribution to the development of this injury and an ongoing incapacity for employment. As the physical effects of the injury have been militated by time the plaintiff’s mental condition has worsened and Dr Strauss opined that this is evidence of a lack of ongoing cause to her current presentation from the stressor of the work injury. I do not agree. As a matter of law the fact of an increasing physical capacity from the physical effect of a work injury but a decline in a mental state is not invariably a disentitling fact that it has been caused by the physical injury.

Materially contributes

Counsel for the defendant identified the ambit of the plaintiff’s claim in his final address in straightforward language when he described it thus: “This is a claim for a left shoulder condition and it is not a primary psyche claim… but a secondary injury - I was disabled and that made me feel worse”.
Has the plaintiff established on the balance of probabilities that her mental condition is an injury that is caused by her work accepted physical injury? I am satisfied that she has. Ms Harrison was not required to prove that the work-related injury is the only cause of her incapacity. In Del Borgo v Niselle[17], Osborn J noted at paragraph 52:
“It has been consistently held that where an injury is a material factor or one or two or more material factors as a consequence of which death incapacity occurs, then such death or incapacity is to be regarded as resulting from the injury.”
[17] [2002] VSC 368
It is sufficient to satisfy the test of “material contribution” of of work-related injury to incapacity is greater than de minimus. A classical exposition of principle is contained in Bonnington Castings Ltd v Wardlow[18] in which Lord Reid described material contribution as follows:
“What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how they can be something too large to come within the minimus principle but yet too small to be material.”
[18] (1956) AC 613
Incapacity of course lies at the heart of what must result from compensable injury in the sense that it is a material contribution. The plaintiff told me that “memory and concentration is not as good as it used to be”. She described “lots of dreams that wake me …I never sleep through”. They each have a definite causal connection with the injury and the ordinary and natural consequences wrought on her life by reason of it. Her presentation and incapacity is not too remote. She does not drive and she rarely steps out and her world has become more reclusive. She does not possess the capacity for suitable employment.
I separately record my impressions of the plaintiff. I found her to be unguarded and frank in her response to questions, even if on occasions they were not always palatable. At times too she seemed bewildered by the court process. She has presented as someone who over her working life has gone about her work again and again despite the vicissitudes she has encountered. I do not doubt her ethic or the genuineness of her presentation.
In regard to the evidence given by Both Mr Daniel Nichols and Mr Kevin Nichols I am satisfied that they held the plaintiff’s technical prowess in the highest regard. I imagine her skills and the availability of them in the available workforce is relatively scarce. It might be that because of the same that any suspicions or concerns they had of the plaintiff and her outward indication of alcohol consumption were waived away by them. Be that as it may, neither of them testified that extraneous non work related activities such as alcohol or her mental presentation affected her work skills and even when they said they encountered problems with the plaintiff being able to execute familiar instructions expressed in job orders they added said that once worked through with her, the plaintiff’s work was as good as ever. They did testify that the plaintiff was crying for no evident reason. The plaintiff denied that she cried with the regularity that their evidence would have me accept. I prefer the plaintiff’s account and I am satisfied that in all probability the crying and the effect on her capacity to work through what her employer regarded as the straightforward was due to the pain the plaintiff testified to having experienced and conveyed to Daniel Nichols well prior to her ceasing work.
I don’t think much should be made of the plaintiff’s few efforts to try and obtain some work. I suspect they were genuine efforts by her consistent with a woman who has worked hard her entire life. The effort to secure a job of some type at a take away chicken shop should not equate to an admission by her of a work capacity.
In accordance with the judgment I have reached that the plaintiff’s mental state constitutes injury caused by her work and the effects on going of it and are such as to render Ms Harrison unsuitable for any employment options identified.
I am satisfied that the plaintiff’s work caused injury in the form of a generalised anxiety disorder with depressed mood and due to her mental state the plaintiff’s incapacity for work is likely to continue indefinitely. I have reached this finding having taken account of the evidence referred to in the medicine of the plaintiff and the submission by counsel for the defendant that the plaintiff had expressed at one point that but for the injury she had anticipated a working life of approximately a further 7 years but this in my judgement does not militate against a finding on available medical evidence of the likely ongoing incapacity from injury.
Ms Harrison is entitled to weekly payments on the “no current capacity” basis from 31 March 2013 and continuing. I determine that her continuing work-related injuries are left shoulder and generalised anxiety and depressed mood. The plaintiff is also entitled to payment reasonable medical and like expenses pursuant to the Act. I will reserve liberty to apply on the matter of the form of final orders including interest and costs.