Johnson v Box Hill Institute of TAFE
[2013] VCC 417
•20 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01362
CI-10-01365
| ROBERT JOHNSON | Plaintiff |
| v | |
| BOX HILL INSTITUTE OF TAFE | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 15, 18 and 20 February 2013 | |
DATE OF JUDGMENT: | 20 March 2013 | |
CASE MAY BE CITED AS: | Johnson v Box Hill Institute of TAFE | |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 417 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Alcoa of Australia Ltd v McKenna [2003] VSCA 182; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Grech v Orica Australia Pty Ltd & Anor (2006) 14 CR 602.
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for both pain and suffering consequences and pecuniary loss consequences associated with the injury and impairment the subject of the harassment claim in proceeding CI-10-01362 and associated with the spinal injury and impairment the subject of the work process claim in proceeding CI-10-01365.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC Ms S Gold | Clark Toop & Taylor |
| For the Defendant | Mr M Titshall QC Mr S Loftus | Wisewould Mahony |
HIS HONOUR:
1 In these applications, the plaintiff seeks leave to commence proceedings in respect of injuries sustained by him in the course of his employment with the defendant.
2 The plaintiff alleges that:
(i) He suffered a compensable organic injury to his spine by reason of the duties which he was required to undertake in the course of his employment with the defendant between 20 October 1999 and 23 February 2006 (the work process claim).
(ii) He suffered a compensable injury in the form of a mental or behavioural disturbance or disorder driven by his perception that his treatment within the defendant’s workplace between approximately 2003 and 2006 was inappropriate in that it involved aspects of bullying or harassment (the harassment claim).
3 In the harassment claim, the plaintiff relies upon the consequences of an emotional injury which arose in the course of his employment with the defendant, the effect of which, it is alleged by the plaintiff, has been to disable him from all forms of employment.
4 In the work process claim, the plaintiff relies upon the consequences to him arising from an injury to the cervical and lumbar areas of his spine, the effect of which, it is alleged by the plaintiff, has been to disable him from all forms of employment.
5 Following the opening of the case, when the issues were identified by the parties, I made rulings that the injuries sustained by the plaintiff to his lumbar spine and cervical spine were injuries to the same body function (namely that of the spine), and that I considered it appropriate that the consequences of those injuries should not be assessed independently.
6 In doing so, I adopted the statement by the Court of Appeal in Humphries & Anor v Poljak;[1] namely:
“It is impermissible in an attempt to ascertain if a ‘serious long term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long term impairment’ and treat them as acting in total, as it were, so as to meet the requirement of the definition. A body function must be identified. That done the inquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.”
[1][1992] 2 VR 129
7 Other than for the above, I am required to assess separately the consequences of the injuries occasioned by:
§ the harassment claim;
§ the work process claim
in assessing whether the plaintiff is entitled to the leave which he seeks; namely to commence proceedings seeking both pain and suffering and pecuniary loss damages in respect of both claims.
The plaintiff’s affidavit material
8 Given the fact that the evidence relied upon by the plaintiff is the subject of repetition and amplification in the confusing and largely unhelpful process adopted by the plaintiff’s solicitor in preparing multiple repetitive affidavits in respect of the plaintiff’s two applications, I find it convenient to summarise the evidence given by the plaintiff with respect to each application at the one time.
9 In a series of affidavits, the plaintiff said that:
·Having completed his Year 11, he commenced an apprenticeship with the Public Works Department, where he remained in employment for a period of four years after the completion of his four-year apprenticeship.
·In approximately 1974, at the age of nineteen, he suffered an injury to his back in the course of his employment with the Public Works Department while undertaking repairs upon a truck. As the result of that injury, he suffered from spinal pain for approximately three years before he recovered. Thereafter, whilst he suffered from time to time from lower back pain if he was bending over or undertaking heavy lifting, he did not require medical treatment and was not absent from work as the result of back pain. This position persisted during his employment with the defendant until he suffered an injury to his lower back during 2002.
·In the early part of 2003, by reason of undertaking manual work with the defendant, he noticed increasing symptoms of spinal pain and left hip and leg discomfort.
·On 25 March 2003, whilst instructing a student in the dismantling of a manual transmission, he suffered a further injury to his lower back and his neck.
·Following the March 2003 incident, he was absent from work, but on return to work he suffered from ongoing symptoms. He was, at that stage, being treated by a chiropractor, Dr Warwick Hopper, and was referred for x‑rays of his neck and lower back.
·In April 2003, he consulted his general practitioner, Dr Verhoef, for the management of his condition, and Dr Verhoef has remained his treating general practitioner since that time.
·He undertook a return to work program with the defendant in mid-2003, but had difficulties managing his workload and the manual handling involved in his work. He said that “this led to problems with my manager, Rod Williams”.
·By September 2003, he had increased his teaching duties to 16 hours a week and, by October, to 20 hours a week.
·In 2004, he resumed working full hours and full duties but was suffering “with intermittent symptoms of back pain”.
·During 2004, he suffered a further injury to his back. During this period, he had ongoing problems with his supervisor, Mr Williams, who was unsympathetic to his position:
“He told me that everyone was sick of me telling them about my back and also that I lacked commitment.”
·In May 2005, he commenced a two-month trial of lighter duties, in respect of which he was not required to undertake the heavy manual handling tasks involved in his work:
“Throughout 2005 I continued to undertake my restricted duties at work but was able to work full hours. Within myself I felt that everything was not quite right and that things were inclined to get me down.”
This was despite the use of antidepressant medication in the form of Zoloft, which Dr Verhoef was already prescribing by that time.
·Upon returning to work over the Christmas break early in 2006, he continued to suffer from physical pain and psychological symptoms. He found that he lacked concentration and self confidence, was having more difficulty in class and was not interacting or engaging with students as he had previously.
·On 23 February 2006, he was involved in disciplining a student in the course of a lesson. At the conclusion of the lesson, he felt angry and upset. He spoke to Mr Williams, who suggested that he should confront the student. At that point, he broke down and was advised by the human resources manager that he should see his general practitioner, Dr Verhoef. He essentially has not returned to any gainful employment since that day.
·Since ceasing work:
(i)He has continued to suffer from symptoms of low-back pain which are constant but vary in severity. He suffered from referred symptoms which particularly affected his left leg and occasionally his right leg. He has suffered from neck pain and on occasions referred symptoms into his shoulders and arms.
(ii)He has continued to suffer from psychological symptoms including the sensation of light headedness and faintness; panic attacks; anxiety and shaking; breathlessness and palpitations. He described his powers of memory and concentration as being greatly reduced;
(iii)His sleeping patterns were very poor by reason of back pain and also his emotional state. He said that there were nights when he did not sleep at all and that his physical and emotional symptoms incapacitated him from all forms of work.
·As at 2011, the plaintiff said that:
(i)He suffered from variable low-back pain and symptoms, particularly in his left leg and, to a lesser extent, his right leg. He said that walking caused him to suffer discomfort in his legs and that he had to take care “when using my back, for example when bending over”. His sleep is disturbed on a regular basis as the result of lower back pain. He found that he usually slept best when he reached an exhausted state between approximately 4.00am and 8.00am. Around the house he was careful to avoid activities which unduly placed strain upon his back and did things at a measured pace to avoid such strains. He said that to manage his symptoms of lower back pain he employed a combination of paracetamol and codeine, aspirin and Voltaren Gel.
(ii)His psychiatric state involved symptoms of:
§ light headedness;
§ poor concentration;
§ lethargy and lack of energy and motivation;
§ a tendency towards becoming frequently tearful;
§ the practice of staying at home so as to avoid situations likely to be a cause of stress which may involve activities as simple as assembling the documents necessary to send to his tax agent to prepare his income tax returns.
(iii)He remained under the care of his general practitioner, Dr Verhoef, who presently prescribed relaxant medication in the form of Zoloft.
10 In an affidavit dated 8 March 2012, the plaintiff described a significant deterioration in the condition in his neck. He said that from 2003, and throughout the remainder of his employment with the defendant, he continued to experience symptoms of soreness in his neck. He said that in September 2011, that condition worsened and he began to experience not only worsening pain in his neck, but referred symptoms through his arms and into his hands. The plaintiff said that over the years, in an attempt to manage ongoing pain and symptoms which he experienced in his neck, he had purchased a new chiropractic bed, had tried different pillows to take pressure off his neck and had employed a hot pack. He had also undergone massage treatment on his neck and employed physiotherapy treatment for his neck.
11 Following the increase in his neck symptoms in September 2011, the plaintiff said that:
· He was referred to a neurosurgeon, Mr Damien Tange, who performed an ultrasound-guided CT injection into his neck in December 2011 and that this procedure resulted in an improvement in the pins and needles he was feeling in his wrist;
· Mr Tange performed a further CT-guided injection into his neck in March 2012.
· He had continued to suffer from pain in his neck and referred symptoms into his right arm and wrist, and that these symptoms significantly impaired his life.
12 The plaintiff described both his neck pain and back pain as causing him difficulty sleeping at night. He said that he suffered from headaches, starting at the base of his neck, which were exacerbated by movements of the neck. He described activities such as driving as tending to increase his neck pain and said that he had difficulty using his arms above chest height. He said that he felt that each of his injuries had significantly reduced his ability to return to the workforce.
13 In an affidavit dated February 2013, the plaintiff said that he continued to suffer from constant pain in his lower back with referred symptoms into his legs (generally worse on the left side), and constant pain in his neck, which extended into his shoulder blades and arms. He described his stress and depression as worsening in recent months. He said that his lower back pain and neck pain increased and were associated with “prolonged, sustained or awkward physical activity” and that his sleep remained impaired by pain. He said that he employed Panadol Codeine and Panadeine Extra to manage his symptoms of pain and continued to be prescribed Zoloft for his depression. He said that the second CT-guided injection into his neck undertaken by Mr Tange had done “little or nothing for [his] pain”, that at the present time the strongest pain from which he suffered was present in his neck and that he continued to experience daily headaches associated with neck pain. He commented:
“Since the strongest pain is in my neck, it appears that surgery will be of little benefit to me.”
14 Norris Johnson, the plaintiff’s mother, in an affidavit sworn 7 October 2011:
·Said that the plaintiff used to enjoy activities such as swimming, racquetball, fishing, camping and “was always willing to give a helping hand when needed”.
·Described the plaintiff’s injuries as causing him to lose interest in the above activities and said that the plaintiff had lost his ability to move easily or to sit for long periods of time without suffering increased pain.
·Described the plaintiff’s temperament as being more volatile and that his work had been an important part of his life.
15 In an affidavit dated 28 October 2011, Mr Gordon Streader, a fellow employee of the defendant, described the plaintiff as being, prior to his injuries, a gentleman of quiet temperament and that following his injuries, he seemed to become more and more withdrawn and to have greater difficulty coping.
The Plaintiff’s viva voce evidence
16 The plaintiff gave viva voce evidence and was cross-examined. In the course of cross-examination, much of the evidence deposed to by the plaintiff in his affidavits to which I have referred was not challenged.
17 The plaintiff said that he had recovered from the back injury which he sustained in the course of his employment with the Public Works Department to the extent that he experienced “short periods of pain, if I did a whole day of mixing concrete and spreading it. Then I would get a sore back.”[2]
[2]T36
18 He said that his recovery from this injury had been such that:
· At his home he had been able to undertake activities such as:
“… laying quite a number of metres of paving bricks and laying large sleepers et cetera in the garden. I was able to do all these things without problems except at the end of the day the back was a bit sore and stiff and I think anyone’s would be sore and stiff;”[3]
[3]T37
· He had been able to travel extensively overseas and around Australia;
· He used to do a lot of four-wheel driving and camping, and that he was able to undertake these activities quite normally.[4]
[4]T37
· He suffered from occasional back pain but it did not stop him working,[5] commenting:
“I suffer aches and pains and that’s it but as far as the back injury goes it was resolved.”[6]
[5]T43
[6]T46
19 It was put to the plaintiff:
“You gave up being a mechanic because of that injury, didn’t you?”
To which he responded:
“I wanted to go into teaching, I was working with a mechanic who was in braces and stuff and I thought that’s the last thing I want to is end up like him. That was the motivation to getting into teaching, primarily I wanted to teach, not work as a motor mechanic for the rest of my life.”[7]
[7]T47
20 It was put to the plaintiff that he had told Mr Clive Jones, an orthopaedic surgeon, who had examined him in 2003, that he had to give up work as a mechanic because of back symptoms, to which the plaintiff responded:
“A: Didn’t have to give up as motor mechanic at all.
Q: So he has written that down incorrectly, has he? ---
A: He’s probably misinterpreted what I said.”
21 The plaintiff described the March 2003 incident as involving “agonising pain in my lower back, both my legs were in extreme distress in the way of pain from the lower back.” He said his neck suffered stiffness but “didn’t come out straight away”. He described noticing pins and needles and a restriction of movement in his arms while driving to work “from being off work”.[8]
[8]T55
22 He described his neck pain as not causing much discomfort during the two weeks in which he was off work after the incident in March 2003, explaining: “I don’t recall when the neck was causing much discomfort, all I can tell you is the pain I was in with my lower back would cancel any other pain out there unless it was equally significant.” He said that upon returning to work, he had sought treatment for his neck pain and lower back pain from a chiropractor, Dr Hooper, who “was mainly concentrating on the neck at the initial stage but the occasional treatment on my lower back occurred also.”[9] At that stage, the plaintiff described his lower back as causing him a lot of discomfort and pain. The plaintiff said that his back pain interfered with his sleep and described his neck pain as not causing “anywhere near that level of pain but was still causing a lot of distress where I couldn’t raise my arms”.[10] He said that he could not recall if he had mentioned his neck problem to Dr Verhoef during this period, but that Dr Verhoef had given him certificates of incapacity which made mention of his neck.[11]
[9]T59
[10]T60
[11]T62
23 When asked about the condition of his neck from March 2003, the plaintiff said: “I can’t recall how bad the neck was at this stage, the physio eventually got the neck working reasonably well but the duration, I can’t recall.” He said that his headaches had become more significant since the March 2003 incident,[12] but commented: “After the treatment for about three months with the chiropractor the neck was reasonable.”[13] He described his lower back as remaining pretty much the same as it was after it had settled down following the initial accident but that his symptoms increased if he bent the wrong way or moved incorrectly.[14]
[12]T71
[13]T72
[14]T75
24 The plaintiff described his emotional injury as causing him great distress, commenting: “It caused me great distress as well, as if I wasn’t being harassed the injury and the stress levels wouldn’t have stopped me working.” He agreed that his psychological condition arose because of the back and neck injury on the one hand and also the harassment bullying incident. He said that he was not aware that he had suffered from any psychiatric condition before the present claim.[15]
[15]T98
25 The plaintiff accepted that he might have been prescribed with Zoloft by his general practitioner in 1998 as at that time, he had experienced problems with a previous manager.[16]
[16]T98
26 The plaintiff:
· Said that in recent years he had sought employment working one-and-a-half days a fortnight selling spare automotive parts to customers, but that he had not been successful in obtaining that employment.[17]
[17]T100
· Described his depression as varying, commenting:
“If I’m left alone I’m able to cope with things to a reasonable level. When I’m pushed as mentioned before I'll react badly or feel badly very quickly.”[18]
[18]T101
· Said that he could undertake housework if he spread things out; that he cooked for himself but in terms of cleanliness, his house was a “pig sty”.[19]
[19]T101
· Said he had previously had the best garden in the street but it now looked like a jungle.[20]
[20]T101
§ In re-examination, the plaintiff said that, having recovered from his back injury in 1974:
· He suffered only from the occasional symptoms of back pain.
· In 1986, he had bought a house which had been erected to a lock-up stage and that he completed the rest of the building, including undertaking all the plastering and fit-outs and assisting both the electrician and the plumber.
· He had installed insulation in the ceiling, erected bluestone walls and bluestone pathways.
· He had hand-mixed the concrete which he laid in respect of a double car garage and that he had undertaken four-wheel driving trips throughout Australia, both in the Kimberley and up to Cape York.
§ The plaintiff said that he used to fish; that he had a boat, but it was now in the shed covered in dust.[21]
Ruling upon the defendant’s wish to explore by cross-examination the factual issue as to whether the plaintiff was harassed in the course of his employment
[21]T103
27 It was put by the defendant that it was entitled to explore the issue as to whether the plaintiff was ever the subject of harassment within the defendant’s workplace and that I was required, in this application, to make a finding as to whether the plaintiff had established that he had suffered a compensable psychiatric injury as defined by part C of the definition of serious injury as employed by s134AB(37) of the Accident Compensation Act 1985 (“the Act”). Essentially, in making this submission, the defendant relied upon the fact that there was a conflict in the evidence relied upon by the plaintiff, and that relied upon by the defendant, as to whether the plaintiff was ever exposed to bullying in the course of his employment with the defendant.
28 In accordance with the decision of the Court of Appeal in Alcoa of Australia Ltd v McKenna,[22] I ruled that I would not allow cross-examination to be undertaken either of the plaintiff or his fellow workmates, Gordon Streader, Lanny Pincott and Steven Wathall, in respect of allegations made by them that the plaintiff had been exposed to the development of an emotional injury by reason of the work practices employed by the defendant.
[22][2003] VSCA 182
29 I made this ruling on the grounds that I was satisfied that the evidence in the case established a prima facie position that the plaintiff had developed a compensable psychiatric injury having regard to the evidence relied upon by him, which included:
(i)The statements of both the plaintiff and three workplace witnesses which generally supported the harassment claim;
(ii)The acceptance by the defendant of the claim submitted by the plaintiff on 15 May 2008 that he had suffered “psychological upset, anxiety, panic attacks and depression” in the course of his employment with the defendant when considered in the absence of any evidence by the defendant which explained the reason for that acceptance;
(iii)The assessment by the Medical Panel dated 17 February 2009, that the plaintiff had suffered a whole person psychiatric impairment of 25 per cent “resulting from the accepted psychological injury, when assessed in accordance with s91 for the purpose of s98C and s134AB(3) and (15) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act”.[23]
(iv)The large body of medical opinion assembled both by the plaintiff and the defendant which unequivocally supported the existence of prima facie case as to the causation of the plaintiff’s psychiatric injury;
The Defendant’s position that the Plaintiff’s organic and psychiatric injuries involve aggravations of pre-existing conditions
[23]PCB 96
30 In the course of this application, the defendant raised the issue as to whether the plaintiff presented with a pre-existing:
· Depressive Disorder or Panic Disorder;
· Condition in his spine
the consequences of which should be taken into account when assessing the consequences of the plaintiff’s employment-related injuries upon his lifestyle and working capacity.
31 I am not satisfied, having regard to the plaintiff’s evidence, the evidence Dr Verhoef and the content of his clinical records, that the evidence establishes the fact that the plaintiff did suffer from any such pre-existing Depressive or Panic Disorder. Rather, I am satisfied that it is appropriate to categorise the plaintiff’s sporadic attendances upon his general practitioner (on two occasions in 1995, two occasions in 1997, one occasion in 1998 and two occasions in 2000), as being isolated incidents in which treatment was sought for either anxiety, depression or stress, the symptoms of which resolved within a relatively short period of time.
32 The plaintiff suffered injury to his spine in 1974 but his affidavit evidence and viva voce evidence was to the effect that within three to four years, he recovered from that injury to the extent that he was able to engage in unrestricted physical activity of a heavy nature, but that he suffered symptoms of discomfort in the back after engaging in heavy physical work, such as that which was involved in laying concrete for his double carport, undertaking landscaping works around his house and activities of that type.
33 It was submitted on behalf of the defendant that the plaintiff provided a history to Mr Clive Jones on 26 June 2003 to the effect:
(i)that he had a long history of back pain which commenced approximately twenty years ago; and
(ii)that he had to give up work as a mechanic because of his back symptoms and that in about the middle of 2002, he found that his back pain increased.
34 The plaintiff denied providing this history to Mr Jones, and no similar history was obtained by any other medical examiner that either treated the plaintiff or assessed the plaintiff for the purpose of this application. Further, there is no suggestion that, during the period of the plaintiff’s employment with the defendant from the time that employment commenced in 1985 until the date of his first injury which occurred in approximately April 2002, he suffered from any restriction in his ability to carry out the duties involved in his employment, which involved teaching and demonstrating systems of work as an automotive trades teacher.
35 I am satisfied, in these circumstances, that the plaintiff’s evidence as to the nature and extent of his recovery from his 1974 injury should be accepted.
36 It follows that I do not accept that the plaintiff provided to Mr Jones the statement recorded by Mr Jones in his report.
37 Further, I do not accept that the plaintiff was suffering from any symptoms in either his cervical or lumbar spines prior to the suffering by him of the injuries, the subject of this application, which I should take into account in assessing the consequences to the plaintiff of the physical injury and impairment the subject of this application.
38 In my opinion, the position adopted by the defendant that the plaintiff’s prior back injury in any meaningful way disabled the plaintiff from involving himself in a full range of physical activity is untenable given the evidence to which I have previously referred as to the plaintiff’s capacity for work and activity following his recovery from his 1974 injury.
Proceeding CI-10- 01365
The Work Process claim – Analysis as to the impairment to the function of the plaintiff’s spine
39 It is put on behalf of the defendant that an element of the symptoms from which the plaintiff suffers in his lumbar spine has no physical basis and as such, “disentangling” must be undertaken for the purpose of identifying the extent to which any complaint made by the plaintiff of either pain or restriction of movement in his spine is caused by a physical condition and not a psychiatric condition.
40 With the exception of the evidence of Mr Clive Kenna, the preponderance of medical opinion relied upon by the defendant supports the presence of an ongoing organic condition in the plaintiff’s lumbar spine by reason of the work which the plaintiff was required to perform in the course of his employment, which is sufficient to restrict the plaintiff to light forms of employment and to light forms of physical activity.
41 In a report dated 22 November 2007, Mr Kenna opines that the plaintiff’s chronic low-back pain was essentially psychological in origin.
42 I do not accept this opinion for the following reasons:
(i)Firstly, Mr Kenna’s position is inconsistent with the bulk of the opinions expressed by the various medical examiners who have examined the plaintiff’s spine for the purpose of assessing the nature and extent of the plaintiff’s physical incapacity;
(ii)Secondly, the opinion by Mr Kenna to this effect was clearly based upon his acceptance of the history reported by Mr Jones that the plaintiff presented with a long history of back pain, which history I have found to be inaccurate;
(iii)Thirdly, the fact that Mr Kenna:
§ Accepted the history reported by Mr Jones notwithstanding that the plaintiff provided no such history to Dr Kenna and failed to clarify the issue with the plaintiff;
§ Opined that the presence of multilevel degenerative changes in the plaintiff’s lumbar and cervical spine is inconsistent with the opinion expressed by Dr Fish in October 2003, that the plaintiff had sustained a work related injury[24]
in my opinion, strongly suggests the adoption by Mr Kenna of a flawed and cursory approach to the formulation of his opinion.
The balance of the medical evidence relied upon by the defendant as to the condition of the plaintiff’s spine
[24]See Dr Kenna’s comments at Defendant’s Court Book (“DCB”) 43
43 In a report dated 12 August 2008, Mr Brendan Dooley opined that the plaintiff presented with a chronic low-back strain with non-verifiable pain referred to his left leg, due to aggravation of the degenerative changes in his lumbosacral spine.
44 Mr Dooley accepted that the plaintiff’s injury was related to his employment, and described the injury in the following terms: “He has suffered injury to his low back, causing back pain and mild left sciatica. Surgery is not indicated.”[25] At the same time, Mr Dooley expressed the opinion that he did not believe that the plaintiff had sustained any physical injury to his cervicothoracic spine during the course of his employment with the defendant.
[25]DCB 50
45 In a report dated 24 February 2010, Mr John O’Brien expressed the opinion that the plaintiff presented with chronic non-specific back pain “which is indeed associated with greater significant psychosocial factors”.
46 Mr O’Brien accepted that the plaintiff’s history of employment remained a significant contributing factor to his mild lumbar pathology, but opined that he could find no evidence that the plaintiff presented with ongoing cervical pathology. He expressed the opinion that the plaintiff was not totally incapacitated from employment by reason of his lumbar pathology and that he would be capable of undertaking employment involving modified duties, excluding heavy physical tasks.
47 In a further report following an examination of the plaintiff undertaken on 29 March 2011, Mr O’Brien opined;
· that the plaintiff presented with well established chronic back pain which would not resolve and in respect of which the prognosis was poor;
· that the plaintiff’s back pain disabled him to a mild degree from a physical perspective; and
· that whilst the plaintiff could not return to his pre-injury employment or any employment with a significant physical component, he could cope with modified duties which excluded all heavy lifting and bending activities and allowed the plaintiff frequent changing of positions between sitting and standing.
48 In a series of further reports, Mr O’Brien expressed similar opinions:
· Maintaining the position that the plaintiff was fit for restricted duties by reason of his presence of back pain;
· Confirming that he was unable to confirm the relationship between any cervical symptoms with which the plaintiff presented and his work duties; but
· not recanting from his previously expressed position that the plaintiff would be restricted both in physical activity and social, domestic and recreational activities, by reason of the presence of chronic back pain.[26]
[26]See the opinion of Mr O’Brien in this respect at PCB 76
49 Mr Michael Dooley, in a report dated 25 October 2011, opined that the plaintiff presented with naturally occurring age-related degenerative disc disease in the cervical and lumbar spine regions which were aggravated by the incident in the course of his employment which occurred in March 2003. He opined that as the result of those soft-tissue injuries, he expected the plaintiff to experience intermittent neck and back pain and occasional limb pain, but that from an orthopaedic point of view, the plaintiff would be capable of carrying out light physical work which did not involve bending, lifting or regular activity above shoulder level.
50 Mr Dooley noted as a possibility that the injury to the plaintiff’s lumbar spine involved a lumbar disc prolapse, but opined in general that his condition would be kept stable by regular low-impact exercise and sensible modification of activity.
51 Mr Dooley further opined that the MRI scans reported, with respect to the plaintiff’s cervical and thoracic spines, on 7 November 2011, which commented upon the presence of widespread degeneration involving the cervical and thoracic spines, had no relationship to the work process but were constitutional in origin.
52 Mr Roy Carey reported on the plaintiff’s condition on 14 August 2012. He opined:
· That the plaintiff presented with chronic non-specific low back pain;
· That the plaintiff did not present with the presence of any non-organic signs of abnormal illness behaviour;
· That the plaintiff was fit for light forms of work, such as classroom teaching, but not work involving heavy physical activity;
· That the plaintiff’s cervical condition was due to an age-related condition and that it was unlikely that the present symptoms in the cervical spine emanated from an aggravation of his cervical spondylosis at the time of his work injury in March 2003.
53 As to the medical evidence relied upon by the plaintiff:
(i) Mr Kenneth Brearley
54 Mr Kenneth Brearley examined the plaintiff on a number of occasions between 30 March 2001 and 15 March 2012. When Mr Brearley first examined the plaintiff, he opined that the plaintiff had suffered a work-related aggravation of the degenerative changes in his lumbar spine and facet joints; that his physical low-back injury incapacitated him from his normal work as a motor mechanic, and “to a minor extent to his capacity to teach at the Box Hill Institute of TAFE”. He did not find the plaintiff to be presenting with a significant cervical injury.
55 At the time of his second examination of the plaintiff on 15 March 2012, Mr Brearley noted that the plaintiff had suffered a sudden exacerbation of neck pain which occurred for no obvious reason in September 2011.
56 In his report of April 2012, Mr Brearley commented that it was his opinion that the plaintiff’s ongoing neck and back pain continued to be related to the incident at work of 25 March 2003.
57 In his report of 7 December 2012, Mr Brearley opined that the plaintiff’s neck pain restricted him more severely than his back pain, that his physical injuries to his neck and back restricted him in his ability to work with reliability as a teacher and that both his neck and back injuries were related to his employment with the Box Hill Institute of TAFE.
58 In the course of viva voce evidence, Mr Brearley said:
· He had undertaken a number of examinations of the plaintiff and reported upon his condition in March 2011, March 2012, April 2012, December 2012 and January 2013.
· When he first saw the plaintiff in March 2011, upon examining his neck, he noted the absence of any clinical abnormality and the presence of movements within the expected range. At that time, he concluded that there was no very obvious serious injury to the neck as far as he could determine.
· When he re-examined the plaintiff in March 2012, the position with respect to the plaintiff’s neck had altered and had become more troublesome. At that time, Mr Brearley reported that the plaintiff told him that in September 2011, he had experienced “a sudden exacerbation of neck pain which occurred for no obvious reason”. Mr Brearley commented that, whilst in March 2011 he had considered the injury to the plaintiff’s neck as not being very serious, by March 2012, it had become serious, because the plaintiff was having very troublesome symptoms of referral of pain into the arms. He opined that he considered that the change in the plaintiff’s presentation was “presumably” the result of “the motor vehicle accident because there had been no other trauma or other incidents I was aware of”.[27] In this respect, notwithstanding the fact that Mr Brearley employed the term “motor vehicle accident”, I am satisfied (given that there is no suggestion that the plaintiff has been involved in a motor vehicle accident of any consequence at any time), that Mr Brearley was referring to the industrial accident, the subject of this application.
[27]T83
· As at March 2011, the plaintiff had told Mr Brearley that if he had no psychological problems he would still be doing his job as a teacher of automotive trades providing appropriate restrictions were in place, and was asked:
“Q: Do you agree with his description of his abilities at that stage?---
A: Yes.”[28]
[28]T84
59 The appropriate working restrictions for the plaintiff involved the following:
“He’ll need to avoid heavy lifting and repeated bending and stooping and much twisting and turning and that in the absence of the imposition of these restrictions the plaintiff would suffer exacerbations of his symptoms.”
60 Mr Brearley maintained the position which he had expressed in his report, namely:
“Because of his history of a back injury and his ongoing disabilities there is no likelihood he will be offered paid employment in the future as from a practical point of view he has no current work capacity.”[29]
[29]T84
(ii) Mr Damien Tange
61 Mr Damien Tange has undertaken the management of the plaintiff’s cervical spine at the referral of his general practitioner. He first saw the plaintiff on 12 December 2011 in respect of that condition, at which time he said that the plaintiff presented with “long problems with his neck with a WorkCover injury in 2003”. Mr Tange described the plaintiff’s symptoms as involving “a C7 type radiculopathy” which while some improvement had been achieved as a result of a C6-7 foramen, he continues to suffer from numbness and paresthesia.
62 In a report dated 2 August 2012 to the Accident Compensation Conciliation Services, Mr Tange opined that the plaintiff was suffering from ongoing C7 radiculopathy and recommended treatment in the form of an anterior cervical discectomy and fusion. He described the plaintiff’s condition in the following terms:
“Mr Johnson first presented at my Kew rooms on 12 December 2011 with long problems with his neck, a WorkCover injury in 2003. On the day he presented he had significant right sided C7 radiculopathy and on examination this was supported by significant weakness on examination of his triceps. He rolled over in bed to precipitate this acute decline.”
63 On 11 February 2012, Mr Tange reported that there had been some improvement in the majority of the plaintiff’s radicular symptoms and that he was not, at that stage, convinced that surgery to the cervical spine would help his symptoms, given that the particular concern for the plaintiff was his neck pain.
(iii) Professor Richard Bittar
64 In a report dated 27 November 2012, Professor Richard Bittar, consulting neurosurgeon, opined that the plaintiff presented with neck pain and right brachialgia which caused him to suffer intermittent neck pain which was predominantly right sided and pins and needles radiating into his right arm. He described these symptoms being exacerbated by any use of his arms above shoulder height, repetitive neck movements, or movements involving heavy lifting. He said that the plaintiff suffered from lower back pain and bilateral leg pain with intermittent symptoms in his right leg and radiating pain into his left buttocks and hamstring and the anterior-lateral aspect of his thigh.
65 Professor Bittar expressed the opinion that the plaintiff had suffered an aggravation of lumbar spondylosis and cervical spondylosis with cervical radiculopathy and that his employment with the Box Hill Institute of TAFE had been a significant contributing factor to both of these conditions. He discounted the plaintiff’s pre-existing lumbar injury as being a factor in the plaintiff’s presentation, and opined that the plaintiff had no capacity for work taking into account his age, education, training, skills and the nature and severity of his lumbar and cervical spinal conditions.
(iv) Dr Bill Verhoef
66 Dr Bill Verhoef, the plaintiff’s general practitioner, authored a number of reports in which he commented upon the nature and extent of the condition in the plaintiff’s spine. In his initial report dated October 2007, Dr Verhoef commented that, following the period of absence from employment by reason of back-related symptoms:
· The plaintiff returned to work undertaking light office duties in May 2003;
· That by July 2003, he was undertaking twelve hours of teaching per week but was not capable of doing more without aggravating his back;
· That by September 2003, the plaintiff had increased his teaching duties to eighteen hours per week;
· That in June 2004, the plaintiff aggravated the condition in his back;
· That by August 2004, the plaintiff was complaining of pressure at work and a feeling that he was not receiving appropriate support from his employer;
· That in June 2005, the plaintiff was “looking and feeling much better”. He said he had settled in back at work and that he did not cross paths much with the supervisor who does not visit the staff room often;
· That in November 2005, the plaintiff reported an episode of lumbar back pain radiating into his left hamstring and left calf after demonstrating some welding;
· That in March 2006:
“Mr Johnson attempted to return to work. He had prepared himself over the weekend and woke feeling great and eager to restart work. He continued to feel very positive on his way to work. But halfway into work he started to feel a little tense and the closer he got the worse he felt. Nevertheless, he made it into work and started off with an easy subject and everything seemed to be going OK.”
67 Dr Verhoef described the history given to him by the plaintiff that at lunchtime on 27 March 2006, he was approached by his employer, and that as a result of this conversation, the plaintiff formed a distinct impression that he was not wanted at work and that whilst the plaintiff stayed at work until 4.00pm doing paperwork:
“Mr Johnson said he felt bullied and badgered and totally unsupported in his illness by his employer and his employer’s management of his case. Mr Johnson was never able to recover sufficiently, emotionally and psychologically, to ever return to work again after this incident.”
68 As at 10 October 2007, Dr Verhoef opined:
“In my opinion, Mr Johnson is permanently and completely disabled both physically and especially psychologically for work in any capacity as the result of his work injury and the psychological ramifications of his injury.”
69 Notwithstanding the fact that Dr Verhoef reported as to the plaintiff’s condition on 2 December 2008 and 22 December 2008, it was not until his report dated 7 April 2009 that Dr Verhoef commented upon the plaintiff having suffered an injury to his cervical spine in the course of his employment. At that time, Dr Verhoef said:
“There is no mention in the history of an injury to Mr Johnson’s neck, but Mr Johnson tells me that he detailed the neck injury in the incident report at work at the time of his injury.”
70 He continued:
“It is possible that he mentioned a neck injury on the 12th August 2003 consult whilst I was completing his certificate and that, as a result, that injury appeared on the certificate for a while until again the back injury and psychological effects predominated.”
71 It was not until Dr Verhoef prepared a report dated 24 March 2012 that he commented upon the condition of the plaintiff’s cervical spine, noting that on 24 August 2011, the plaintiff presented to him with neck pain, together with paresthesia in his arms, that an MRI scan of the cervical spine was subsequently undertaken which revealed:
“… multi-level disc degeneration, disc protrusion, narrowing of the intervertebral foramina and intervertebral canal narrowing resulting in spinal cord indentation of the T5-T9 level.”
72 Dr Verhoef, at that time, referred the plaintiff for management to a neurosurgeon, Mr Tange.
73 In a report dated 26 January 2013, Dr Verhoef opined:
“Employment was a likely cause of the patient’s back injury and neck injury and the psychological problems were secondary to both the chronic pain from the injuries and how his case was handled by his employer.
You have asked me to analyse the impact of the three aspects of his injury on his employment capacity. I am unable to tease out the various contributions and would probably have to give the same answer for each of the three aspects of his injury if pushed to do so. To summarise: as a result of the injuries sustained to his lower back and neck in the course of his employment together with the secondary psychological effects, Mr Johnson is totally and permanently incapacitated for any and all types of work. This has been the unchanging situation for more than five years since my first report dated 10 October 2007.”
74 In evidence-in-chief, Dr Verhoef said:
· That in October 1977, the plaintiff had consulted him with respect to stress at work and that on that occasion he had not prescribed any medication for the plaintiff and had made no referrals for the plaintiff;
· That in May 1998, he had prescribed Zoloft for the plaintiff in treatment of depression;
· That he next saw the plaintiff in February 1999 and that there was no repeat prescription of Zoloft, the February 1999 consultation involving issues with respect to blood pressure.
75 In cross-examination, Dr Verhoef said that in the course of his consultation with the plaintiff on 11 February 1999, the issue of Depression was not discussed. He was taken to an entry in his medical record on 27 May 2002 which referred to the plaintiff always stewing over things and asked the question:
“Q: Is that consistent with the background of anxiety and depression?---
A: Hard to say a lot of people stew without being depressed so I'm not sure it follows.
Q: Throughout that period from when you first treated him for depression in 1998 through to the end of 2002 there is no record of further treatment for depression, did you form a view about whether he continued to suffer from anxiety and depression?---
A: It isn’t mentioned in the notes there but I can’t recall he was affected that way, I would have noted it.”
76 Dr Verhoef agreed that in reporting upon the plaintiff’s presentation up until 27 December 2009, he had not mentioned the plaintiff as suffering any injury to his neck and that until 7 April 2009, he had not administered any treatment to the plaintiff with respect to his neck.
77 Dr Verhoef said:
(i) That between 12 August 2003 and 20 April 2004, he had provided WorkCover certificates which referred to the plaintiff’s neck and back but that he had not treated the plaintiff for neck pain during that period;[30]
[30]T114-117
(ii) He had no record of the plaintiff suffering back pain “before the work”;[31]
(iii) The plaintiff’s psychological condition, which related to his relationship with particular individuals within his workplace, had improved after he left the workplace.[32]
[31]T118
[32]T119
78 In re-examination, Dr Verhoef said:
(i) That he had provided the medical certificates which related to both the plaintiff’s back and neck between August 2003 and April 2004 on the basis of his patient’s history;[33]
[33]T112
(ii) That the plaintiff had never actually recovered from the injury to his lower back;[34]
[34]T123
(iii) That:
“As a result of injuries sustained to his lower back and neck in the course of his employment, together with the secondary psychological effects Mr Johnson is totally and permanently incapacitated for any and all types of work, this has been the unchanging situation for five years since my first report dated 10 October 2007.”[35]
[35]T124
Findings
79 Taking into account the opinions to which I have referred as to the effect of the injury suffered by the plaintiff to the lumbar area of his lumbar spine, when considered in the context of the plaintiff’s ability to continue working in restricted duties until the intervention of his psychiatric injury in 2006, I am satisfied that, whilst as the result of the injury suffered by the plaintiff to his lumbar spine the plaintiff developed symptoms of pain and restriction of movement which precluded him on a permanent basis from:
(i) undertaking unrestricted physical work; or
(ii) engaging in any activity which involved repetitive bending or heavy lifting;
I am equally satisfied that the plaintiff suffered from symptoms which did not operate to prevent him from undertaking restricted duties as a teacher.
80 I am satisfied that by reason of the combined presence of symptoms in the cervical and lumbar areas of his spine, the plaintiff is presently rendered unfit for any form of employment, and that this position is most probably permanent, particularly given the serious symptoms emanating from the cervical area of the plaintiff’s spine.
81 Notwithstanding the plaintiff’s evidence that he has, since 2003, suffered from ongoing symptoms in his cervical spine, the absence of any report by the plaintiff of the presence of those symptoms to his general practitioner between April 2004 (the last occasion upon which Dr Verhoef certified the plaintiff as suffering from cervical symptoms) and April 2009, in my opinion, calls into question the plaintiff’s reliability as a historian with respect to this issue.
82 I am not satisfied, in these circumstances, that the plaintiff suffered from on going symptoms in his cervical spine after between April 2004 and April 2009.
83 Given this finding, in the presence of:
· A degenerative condition in the plaintiff’s cervical spine which, in itself, was capable of sponsoring the plaintiff’s present cervical symptoms;
· Mr Brearley’s findings in March 2011 when, upon examining the plaintiff’s neck, he noted the absence of any clinical abnormality and the presence of movements within the expected range, and concluded that there was no very obvious serious injury to the neck as far as he could determine;
· The sudden and unexplained manifestation of acute symptoms in the plaintiff’s cervical spine as reported by the plaintiff to Mr Brearley, which in turn led to the referral of the plaintiff to Mr Tange;
where there is a disagreement in medical opinion as to the responsibility of the plaintiff’s work process for making a significant contribution to his cervical symptoms, I find the position voiced by a number of medical practitioners that those symptoms are unlikely to be associated with the initial aggravation by the plaintiff of any degenerative condition in his cervical spine, to be persuasive.
84 In making this finding, I do so on the basis that I am satisfied that the history obtained by Mr Tange from the plaintiff as to the longstanding presence of symptoms in his cervical spine was inaccurate. I am satisfied that this history must have been a significant factor in the formulation of Mr Tange’s opinion that the plaintiff’s cervical condition was related to a workplace injury, with the result that Mr Tange’s opinion as to this issue is considerably undermined.
85 It follows that I am not satisfied that the plaintiff has established that the acute exacerbation of his cervical symptoms which occurred in September 2011 was caused by or related to any injury to his cervical spine by reason of the employment activities the subject of this application.
86 I am satisfied however, that the plaintiff suffers from symptoms of back pain sufficient to generate a severe depressive illness,[36] and that this in turn provides a realistic measurement of the severity of those symptoms and their impact upon the plaintiff’s life and lifestyle.[37]
[36]It was Mr Kaplan’s opinion, which I accept, that the plaintiff’s pain was materially contributing to his emotional symptoms and disability well before the condition in his cervical spine deteriorated in September 2011 – see the report of Dr Kaplan dated 26 October 2009.
[37]In making this finding, I adopt the method of analysis referred to by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 on 20 February 2013.
87 I am further satisfied that the physical symptoms emanating from the plaintiff’s lumbar spine have had the effect of:
(i)permanently restricting the plaintiff to light forms of physical employment;
(ii)diminishing the plaintiff’s ability to engage in physical activity in the manner described in his affidavits;
(iii)causing the plaintiff ongoing symptoms of pain and the restrictions to the plaintiff’s lifestyle as described in the plaintiff’s affidavits;
and that these consequences give rise to an impairment, the consequences associated which are, for the plaintiff, appropriately described as being more than significant or marked and as being at least very considerable.
Proceeding CI-10- 01362
Analysis as to the claim that the plaintiff has suffered a severe long-term impairment of body function by reason of his psychiatric injury
88 In this proceeding, the plaintiff seeks leave to commence a proceeding in respect of the pain and suffering and economic consequences to him of a psychiatric injury which he alleges he sustained in the course of his employment with the defendant.
89 It is the plaintiff’s position that he was harassed, bullied and generally provided with inappropriate emotional support by the defendant from approximately 2003 until approximately 2006 and that as the result of that process, he developed a severe psychiatric illness within the meaning of “serious injury” as employed by s134AB(37) of the Act.
90 There is no issue in this application that independently of the development of any psychiatric condition in association with the harassment claim, the plaintiff has developed a psychiatric injury in association with the pain and disability arising from his physical injury.
91 It is the defendant’s position that any psychiatric or psychological incapacity with which the plaintiff presents arises primarily, if not totally, by reason of the plaintiff’s emotional reaction to his physical injury; and accordingly, that it cannot be said that the psychiatric impairment arising from the harassment claim can in any way be said to have consequences for the plaintiff, either with respect to pain and suffering or economic loss, which meet the description “permanent severe mental or permanent severe behavioural disturbance or disorder” as employed by the definition of “serious injury” within s134AB(37) of the Act.
92 I am satisfied that the plaintiff did suffer a psychiatric injury in the course of his employment which caused him to cease working with the defendant in or about April 2006.
93 In making this finding, I rely:
(i) Firstly, upon the evidence that, notwithstanding the injury to his lumbar spine, the plaintiff returned to employment with the defendant undertaking modified duties until early 2006 when, as the result of an incident which was clearly capable of engendering an emotional reaction by the plaintiff, he ceased work;
(ii) Secondly, that liability pursuant to s98C of the Act with respect to a claim made by the plaintiff in relation to the injury the subject of this application was admitted by the defendant on 18 September 2008;
(iii) Thirdly, that the Medical Panel, on 17 February 2009, assessed the plaintiff as presenting with a psychiatric impairment pursuant to s98C, s134AB(3) and (15) of the Act, at which time it expressed the opinion that the plaintiff presented with a “twenty-five per cent psychiatric impairment resulting from the accepted psychological injury”.
94 In the present application, it is put that the real issue for my determination involves whether or not the effect of any injury suffered as the consequence of the harassment claim, when considered in isolation of the psychiatric condition which arises from the plaintiff’s spinal injury (the secondary psychiatric condition) meets the definition of “serious injury” under the provisions of the Act.
95 In this matter, it is clear that the approach which I should take in assessing the consequences to the plaintiff of the psychiatric injury the subject of the harassment claim is to assess the discrete consequences of that injury.
96 In my opinion, the fact that the secondary psychiatric condition may have consequences to him which are severe is of no moment to any finding made by me with respect to the consequences of the psychiatric injury arising by reason of the harassment claim and in particular, do not present a hurdle to the plaintiff obtaining the leave which he seeks with respect to that claim if I am satisfied that the consequences to the plaintiff of the psychiatric injury caused by the harassment claim are appropriately described as giving rise to a “severe disturbance or disorder” within the meaning of the Act.[38]
[38]See R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
97 In considering this issue;
(i) I am satisfied that the approach which I am required to take is to determine whether or not I am satisfied that the plaintiff has discharged his onus of establishing that the consequences to him of any psychiatric or psychological condition caused by the harassment claim materially contributes to the plaintiff’s pain and suffering symptoms or capacity to engage in gainful employment at the present time, and if so, the extent of that contribution.
(ii) I do so on the basis that the evidence satisfies me that the plaintiff perceives that the harassment claim and the injury associated with that claim was the fact that stopped him working, but that his present psychiatric state stems from both the emotional sequelae of the secondary psychiatric condition and the psychiatric condition caused by the harassment claim.
(iii) I am also satisfied that the plaintiff was a willing worker and was motivated to return to work if he had the capacity to do so.
98 I make this finding for the following reasons:
· The plaintiff rehabilitated himself and completely recovered from what appeared to be an injury of some consequence suffered by him at the commencement of his working life while employed with the Department of Works in 1974;
· I am satisfied that the plaintiff presented, prior to the manifestation of his psychiatric injury in 2006, as a reliable and willing worker, having regard to his long history of employment which commenced with the defendant in 1985;
· The plaintiff returned to work with the defendant and was willing to undertake alternative duties, notwithstanding the presence of the symptoms associated with the spinal injury which he had suffered.
99 For the same reasons, I am satisfied that, for the plaintiff, his work was an important part of his life.
The medical evidence relied upon by the parties
100 I approach my analysis of the medical evidence on the basis that my own assessment of the plaintiff as he gave evidence was that he presented as someone significantly affected by an emotional condition. He presented as tearful on some occasions and as having a tendency to make aggressive and inappropriate statements upon other occasions.[39]
[39]See, for example, his evidence at T102, L12
101 I accept the position put on behalf of the defendant in its final submissions that the reports of Dr Sheehan are of little assistance to me, not only as submitted by the defendant by reason of the fact that Dr Sheehan, whilst reporting, in no way differentiates between the emotional consequences associated with the depressed mood caused by the secondary psychiatric condition and those associated with the harassment claim.
102 Equally, I accept the position put on behalf of the defendant that the reports of Dr Strauss provide little assistance to me in the task which I am to undertake for the reasons earlier mentioned.
103 The defendant relies upon the two reports commissioned from Dr Jager, a clinical psychologist, the first dated 1 September 2008 and the second dated 19 October 2011.
104 In his first report, Dr Jager diagnosed the plaintiff as presenting with a dysthymic disorder which developed in the background of a likely Schizoid Personality Disorder. He opined that the presence of the plaintiff’s dysthymic disorder interfered with his ability to appropriately deal with interpersonal relations such as those required in a workplace, and said that this disorder was “a remarkably resistant condition to treat and the current treatment consisting of anti-depression medication and behavioural advice is the treatment required.” He expressed no opinion at that time as to the plaintiff’s current capacity for work.
105 In his report dated 19 October 2011, Dr Jager expressed the opinion that, from a psychiatric perspective, the plaintiff had a capacity to work “half time”, preferably in a solitary capacity, and that his condition rendered him unfit to undertake his pre-injury job.
106 I find the opinion expressed by Dr Jager as to the nature of the plaintiff’s presenting illness or his capacity for work on psychiatric grounds unconvincing for the following reasons:
(i) Firstly, I do not accept the foundation for opinion expressed by Dr Jager that the plaintiff had “already decompensated some years before with the development of anxiety and depression” (this assessment was based upon Dr Jager’s analysis of Dr Verhoef’s medical records which is not borne out by the evidence to which I have previously referred). Equally, it is my opinion that Dr Jager’s statement that the plaintiff presented with “a long history of complaining of stress”, is not borne out by an impartial analysis of the plaintiff’s medical history (or for that matter my findings). Each of these failures in fact finding undermines the opinion of Dr Jager.
(ii) Secondly, the statement made by Dr Jager that the plaintiff falls into the category of individuals who never recover from the presence of a Major Depressive Disorder is, in my opinion, inconsistent with his suggestion that the plaintiff has a capacity for work.
(iii) Thirdly, Dr Jager is alone in expressing the opinion that the plaintiff presents with a Schizoid Personality Disorder
107 Dr Albert Kaplan, a consulting psychiatrist, first assessed the plaintiff at the referral of his solicitors on 4 July 2007. At that time, Dr Kaplan opined that the plaintiff was unfit for work on psychiatric grounds but that his condition had not stabilised and that he should be reviewed in six to twelve months.[40]
[40]PCB 280
108 On 26 October 2009, Dr Kaplan, upon reviewing the plaintiff, opined that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, associated panic attacks –
“… as the result of his injuries, his chronic pain and the stressors to which he was subjected in the course of his work.”
He continued:
“The prognosis of Mr Johnson’s psychiatric condition will be determined by the outcome of his physical condition, and he is likely to remain prone to anxiety and depression as long as his pain persists and as long as he remains disabled by this pain. His psychiatric condition is related to his employment, insofar as his physical injuries are related to that employment. His anxiety in relation to returning to his former place of employment is directly related to the stressors he experienced there.”
109 Upon assessing the plaintiff in March 2011, Dr Kaplan opined that the plaintiff’s psychiatric condition –
“… is related to his injury, his chronic pain and to some extent, the stressors to which he was subjected to in the course of his work.”
110 He further opined that the plaintiff’s prognosis with respect to his psychiatric condition –
“… remains as described in my earlier report, namely, that the plaintiff’s prognosis would be determined by the outcome of his physical condition.”
111 In a further report dated 19 December 2012, Dr Kaplan opined that the plaintiff’s condition –
“… is related to his injury, his chronic pain and the physical limitations imposed upon him by his pain. His work stressors no longer form a significant contribution to his psychiatric condition, although he still dreads the thought of returning to his previous workplace.”
He continued:
“The prognosis of Mr Johnson’s psychiatric condition will be determined by the outcome of his physical condition and he is likely to remain prone to depression and anxiety as long as his pain persists and as long as his pain persists and as long he remains disabled by pain.”
112 At this time, Dr Kaplan opined that it was unlikely the plaintiff would, on psychiatric grounds, be capable of undertaking employment of any kind.
113 Notwithstanding the submission made on behalf of the plaintiff, I am satisfied that Dr Kaplan, as from October 2009, was assigning the large part of the responsibility for the plaintiff’s psychiatric illness as being caused by the pain associated with his physical condition. Further, I am satisfied that as at December 2012, Dr Kaplan was opining that the harassment claim was no longer making a significant contribution to his psychiatric illness which was essentially, at that time, caused by his response to the pain and disability associated with his physical condition.
114 The plaintiff has been assessed on a number of occasions by Dr Tony Pastore, a psychologist.
115 It is put on behalf of the defendant that the reports of Dr Pastore provide no assistance to the plaintiff’s position in that they do not differentiate between the emotional consequences of the harassment claim and those caused by the secondary psychiatric condition.
116 I do not accept this position.
117 In his initial assessment of the plaintiff undertaken in July 2008, Dr Pastore, whilst obtaining a history of the plaintiff developing back pain in 2002, obtained a history that the plaintiff returned to work in light duties and continued in that employment until an incident occurred which involved the plaintiff dealing with a student in a classroom situation, the end result of which was that the plaintiff spoke to his program co-ordinator, who asked him to point out the student –
“… but Robert broke down and cried and could not do that … Consequently Robert was off work for about two weeks and returned to work but was still not well and only stayed for a day and came back about a month later in April 2006. When he came back he was told he did not have a medical clearance and was sent home. He has not been back to work since as he has been unwell since April 2006 when he last worked.”[41]
[41]PCB 225
118 In that report, Dr Pastore comments:
“He carries a physical injury, but I will leave this up to his general practitioner to expand upon. He appears physically able, but he is definitely not fit to work from a psychological point of view.”
119 In expressing that opinion, I am satisfied that Dr Pastore was focussing primarily, if not wholly, upon the consequences of the harassment claim.
120 In a further report dated February 2009, Dr Pastore refers to the fact that the plaintiff’s psychological condition was to be the subject of a conciliation conference to be heard on 23 February 2009 and that his assessment was being undertaken to assist in that process.
121 At that time, Dr Pastore diagnosed the plaintiff as presenting with an Adjustment Disorder with Mixed Anxiety and Depressive symptoms and a Panic Disorder with agoraphobia, commenting:
“Robert is still suffering from the disorders listed above. He was working well at Box Hill TAFE until a number of incidents left him psychologically unfit for work.”
122 Dr Pastore opined that the plaintiff was not fit for work from a psychological point of view and that his prognosis was guarded.
123 I am satisfied that, in expressing that opinion, Dr Pastore was focussing upon the psychological consequences to the plaintiff of the harassment claim.
124 In a further report dated 26 February 2011, Dr Pastore commented that he was assessing the plaintiff’s psychological condition with respect to his workplace injury, the history of that injury being identical to that described by him in his initial assessment and report.
125 On this occasion, Dr Pastore opined that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, commenting:
“The condition is debilitating to him. He also continues to have heightened anxiety to certain events usually related to his current situation (WorkCover claim).”
126 I am satisfied, in making those comments, that Dr Pastore was referring to the effects of the harassment claim.
127 Dr Pastore finally reported upon the plaintiff’s psychological condition on 1 October 2011. At that time, having regard to:
(i) The history recited by Dr Pastore (which is largely identical to the history obtained at the time of his first assessment of the plaintiff); and
(ii) The absence of any history or statement by Dr Pastore that the plaintiff’s presentation to him was significantly influenced by an emotional condition caused by the pain caused by the plaintiff’s 2002 and 2003 physical injuries;
I am satisfied that the opinion expressed by Dr Pastore related primarily to the effect of the harassment claim upon the plaintiff’s emotional state and level of functioning.
128 On that occasion, Dr Pastore recorded the plaintiff’s stress levels as being at the 89th percentile; his anxiety levels as being at the 99.5 percentile and his depression levels as being at the 93rd percentile, and opined:
(i) That the plaintiff presented with an Adjustment Disorder with Mixed Anxiety and Depressive Mood. In making that assessment, Dr Pastore commented that the plaintiff met the criteria formulated in the Diagnostic and Statistical Manual of Mental Disorders with respect to this condition, because he presented with “the development of emotional or behavioural symptoms in response to an identifiable stressor occurring three months of the onset of the stressor” (sic). This statement reinforces my opinion that, in expressing his opinion and prognosis in this report, Dr Pastore was focussing upon the effect upon the plaintiff of the harassment claim;[42]
[42]PCB 257
(ii) That the disorder with which the plaintiff presented was in a chronic phase;
(iii) That his psychological condition had stabilised;
(iv) That his mental status was quite fragile; and
(v) That “his ability to find work would really be dependent on a most sympathetic employer. Even if one could be found, I would not be that convinced that he could survive in an environment with ‘normal’ stressors.”
129 On 11 February 2010, Dr John King, psychiatrist, examined the plaintiff on behalf of the defendant. At the time of his examination, Dr King was provided with a body of medical reports, including the report by Dr Kaplan of 26 October 2009 in respect of which Dr King commented “I thought the report by Dr Kaplan the most helpful”.
130 Dr King expressed the opinion that:
· The plaintiff’s perception was that although the back injury caused him some difficulty, it was his treatment by the manager, Rob Williams, that caused his emotional difficulties;
· That the plaintiff believed that he had been unfairly harassed and bullied repeatedly over the years;
· That clearly, the plaintiff had symptomatic back pain and that also contributed to his presentation;
· That the plaintiff was unfit for all work.
131 In a further report dated 3 March 2011, Dr King opined that he disagreed with Dr Jager’s assessment that the plaintiff presented with a Schizoid Personality Disorder and opined that –
“… after injuring his back on a number of occasions, and then having the perception he was repeatedly bullied and harassed by his manager, he has developed a Chronic Adjustment Disorder with Anxiety and Depressed Mood …
He has not taught since 2006 and I do not believe he is robust enough to return to teaching in any capacity. It is five years since he has worked and I believe he is permanently disabled for all work.
The member ceased work because of the onset of severe anxiety and depressive symptoms after he was threatened at his work by a student and he felt unsupported by management. …
The member is totally and permanently incapacitated for all work.[43] …
From a psychiatric perspective, I believe the plaintiff is not capable of any type of work.”
[43]DCB 340-343
132 I am satisfied that the opinion expressed by Dr King as to the plaintiff’s incapacity for work by reason of his mental state is an opinion based upon the consequences to the plaintiff of the harassment claim considered independently of any other influence.
133 Dr Verhoef opined that the plaintiff’s employment was the likely cause of the plaintiff’s back injury and neck injury and that his “psychological problems were secondary to both chronic pain from his injuries and how his case was handled by his employer”,[44] commenting:
“I am unable to tease out the various contributions and would probably have to give the same answer for each of the three aspects of his injury if pushed to do so.
As a result of the injury sustained to his lower back and neck in the course of his employment together with the secondary psychological effects, Robert Johnson is totally and permanently incapacitated for any and all types of work. This has been the unchanging situation for more than five years since my first report dated 10 October 2007.”
[44]PCB 223
134 I interpret this statement made by Dr Verhoef to be a statement to the effect that both aspects of the plaintiff’s psychological condition, namely that sponsored by:
§ The secondary psychiatric condition; and
§ The harassment claim;
are individually such that they render him unfit for any form of employment.
135 In employing the words “the secondary psychological effects”, I do not accept that Dr Verhoef was making a statement that the secondary psychiatric condition was the only psychological illness from which he was suffering having regard to his previous statement that the plaintiff’s “psychological problems were secondary to both chronic pain from the injuries and how his case was handled by his employer”.[45]
[45]PCB 223b
136 As to Dr Verhoef’s viva voce evidence upon the issue of causation, his unexplored preparedness to accept the opinion of Dr Strauss and that of Dr Kaplan (which on one analysis were mutually exclusive), suggests, in my opinion, that Dr Verhoef had no reason to alter the opinion expressed in his report of 26 January 2013; namely, that each of the three aspects of the plaintiff’s injury were materially causative of his permanent incapacity for all types of work.
137 I am satisfied that no aspect of the evidence given by the plaintiff calls into question the veracity of the opinions expressed of Dr King, Dr Pastore, Dr Verhoef and Dr Kaplan, that the plaintiff’s current psychiatric condition incapacitates him for all forms of work.
138 Although the most recent opinion expressed by Dr Sheehan is dated July 2007, there is no evidence that the plaintiff has received the ongoing psychiatric and psychological treatment recommended by Dr Sheehan and in these circumstances, I do not find it surprising that the opinion expressed by Dr Sheehan as to the plaintiff’s capacity for work as at 24 July 2007 is echoed by Dr Verhoef and Dr Kaplan and Dr King and Dr Pastore as at the present time.
139 I am satisfied, in these circumstances, that the plaintiff has established that he is permanently incapacitated for employment by reason of his current psychiatric illness.
140 I am further satisfied, for the reasons to which I have referred, that Dr King, Dr Pastore and Dr Verhoef, each hold the view that the aspect of the plaintiff’s psychiatric injury caused by the harassment claim materially contributes to that incapacity for employment, whilst Dr Kaplan opines to the contrary.
141 Given:
· The combined weight of the opinions expressed by Dr King, Dr Pastore and Dr Verhoef; and
· The position occupied by Dr Verhoef, as the plaintiff’s treating general practitioner who has had a longstanding relationship with the plaintiff and who, in my opinion, is well placed to observe the development of the plaintiff’s psychiatric illness and opine as to the factors which influence it;
I prefer the opinions of these doctors to that expressed by Dr Kaplan as to the cause of the plaintiff’s current incapacity.
142 In these circumstances, I am satisfied that the mental or behavioural disturbance or disorder caused by the harassment claim gives rise to loss of earning capacity consequences which are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than “serious” to the extent of being “severe” in that it gives rise to a mental or behavioural disturbance or disorder which materially contributes to the plaintiff’s total incapacity for employment.
143 In the circumstances, I am satisfied that:
· The plaintiff has established that the effect of the psychiatric illness the subject of this application has been such to occasion upon him a total loss of earning capacity;
· That the plaintiff’s incapacity for work and the resultant loss of income associated with that incapacity represents for the plaintiff a loss which is more than significant or marked and at least very considerable when considered by comparison with other cases in the relevant range.
144 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for both the pain and suffering and pecuniary loss consequences of the injury and impairment the subject of this application.[46]
[46]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Summary as to Findings in both proceedings
145 Having made these findings, I am satisfied that the plaintiff is entitled to the leave:
(i) To commence a proceeding claiming damages for both the pain and suffering consequences and pecuniary loss consequences associated with the injury and impairment the subject of the harassment claim in proceeding CI-10-01362;
(ii) To commence a proceeding claiming damages for both the pain and suffering consequences associated with the spinal injury and impairment the subject of the work process claim in proceeding CI-10-01365.
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