King v VWA
[2018] VCC 184
•6 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04092
| GLENYS JOY KING | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February ,1-5 March 2018 | |
DATE OF JUDGMENT: | 6 March 2018 | |
CASE MAY BE CITED AS: | King v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 184 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury-low back-major depression
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr P Hayes QC with Ms C Spitaleri | Russell Kennedy |
HIS HONOUR:
1 Ms Glenys King was manager of a retail men’s clothing store known as “Casual Guy”. On 3 June 2014 she was injured in the course of her employment when she was lifting an extremely heavy roller door which jammed. She suffered an organic injury to her low back as well as psychiatric injuries. Both the organic and the psychiatric injuries are admitted compensable injuries.
2 Leave is sought pursuant to paragraph (a) for the physical spinal impairment and pursuant to paragraph (c) for the psychiatric injuries. Both pain and suffering and loss of earning capacity are claimed.
3 The defendant indicated the reliability of the plaintiff as a witness was the real dispute in this case. It was said that the issues for determination were whether or not the organic spinal pain and suffering consequences meet the test of “serious”. With respect to the psychiatric injuries the defendant indicated any pain and suffering consequences fell short of the higher test of “severe”. In relation to loss of earning capacity the defendant maintained that the plaintiff failed to prove a permanent 40% or more loss of earning capacity with respect to either the physical or the mental injury.[1]
[1]Transcript (T) 79
4 It is convenient to deal with the paragraph (c) application first as there is a strong body of evidence that is virtually all one way. Thus compared with some other serious injury applications, there is very limited medical dispute about these admitted compensable injuries, especially in regard to the mental injuries. Apart from some difference between Dr T Entwisle, one of the three psychiatrists the defendant engaged, and other psychiatrists regarding hours she can work the case largely turns on what I make of the plaintiff as a witness.
5 The plaintiff is advanced in years for a worker being sixty one years of age. She has an excellent record of working full time in a number of fields after completing form five. Retail work rising to manager, office duties and even fifteen years as a dental nurse are indicative of her good mental and physical health prior to 3 June 2014. She was prepared to work long hours, up to fifty hours per week at times over six days, although her earnings were always fairly modest.
6 I accept her evidence that since the work accident she has suffered ongoing spinal pain but in particular she has suffered mentally. She has become anxious and depressed. It has been described as a “Major depression”. She has become frustrated. She tries to do as much as she can. I accept her when she said “I don’t seem to be able to get on with things”.[2] I also accept that her concentration and memory have been affected and she has in addition suffered a lack of motivation. These are in stark contrast to her very full working, personal and recreational life prior to 3 June 2014.
[2]Plaintiff’s Court Book (PCB) 18
7 Over the last eighteen months she has worked part time doing three hours a day totalling fifteen hours per week on book work for her partner’s balustrade business. She earns $255 per week and this contrasts with her last full year of work which was 2012/2013 in which she earned $49,495 or $951.82per week. That last full year most fairly reflects her without injury capacity. I reject the defendant’s submission that an average approach is the most fair reflection. She currently works from home and the fifteen hours per week are her maximum capacity.[3]
[3]PCB 20-21, 25-27
8 I accept the evidence that even on those reduced hours her efficiency is not what it was but she wishes to keep working, so she hides the mistakes she makes from her partner. [4] At times she forgets what she is doing and cannot be as accurate as a bookkeeper needs to be which she said was 100% accurate.[5] This was no surprise when observing how her concentration in court showed real limitations. To some extent her mental health issues probably mean she is to some extent in “sheltered employment” working for her partner.
[4]PCB 26
[5]T 167
9 In court she was extremely nervous and in some ways rather overawed by the demands of giving evidence. Her demeanour was as relevant as her answers in some ways. She got lost with paperwork time after time. Her memory and her ability to concentrate were palpably less than what her successful years of employment indicated. At times she took what “seemed like ages” to follow and then answer. As to memory problems they were very understandable when she was asked for example about isolated attendances in clinical notes ten or more years ago. A reference to a doctor seeing her almost a decade ago for “multiple medical issues” including back pain, noted a referral for a back X-ray but she could not recall it [6]. The notes do not indicate any X-ray ever took place so to expect her to remember anything about it is unreasonable. The doctor may have considered the question of an X-ray but took it no further.
[6]Defendant’s Court Book (DCB) 28
10 Similarly there were some very sparse notes about needing mental health assistance thirteen years ago following the deaths of both parents, her brother who was killed in a motor bike accident and a business collapsing.[7] I am satisfied that at the time of the subject injury on 3 June 2014 the plaintiff was not suffering from any pre-existing physical or mental health problems that are relevant to this application. This is consistent with her working more than full time hours holding down responsible employment positions.
[7]DCB 29,PCB 14
11 The advantage of hearing and observing the plaintiff over several days was obvious. She presented as a very emotionally unwell woman. A number of times she needed a break and was visibly upset and puzzled by the proceedings. This was very different to a person capable of managing a store in the competitive retail industry or working for many years performing the responsible duties of a dental nurse.
12 She was challenged somewhat on her affidavits. Often a too literal interpretation of what was in this lay person’s affidavits was involved in this line of cross-examination. Examples were what she had said about walking, driving and being involved in pistol shooting. I found her evidence, even after DVD’s of three days of surveillance were shown to her, was by and large consistent. I will say more about the DVD’s later. Another example where her credit was questioned was a statement reported to a doctor over three years ago that her social life was “almost zero”.[8] Firstly that was said three years ago. Secondly from the seventy five hours of surveillance there was no “social life” shown anyway, save for coffee with her daughter on Australia Day 2018 and going for slow walk with her. [9] I reject the submission this shows any real social life at all.
[8]PCB 127
[9]Exhibit 1
13 Her evidence was criticised as lacking corroboration. Accordingly she was asked whether she had instructed solicitors to obtain an affidavit from her partner or her daughter. Having been in this jurisdiction for decades it is apparent lay people do not usually ask solicitors to get lay affidavits. These matters are for legal advisors if anyone. Very often no other lay affidavits are prepared and tendered especially when the compensable injuries the subject of the Originating Motion are admitted. I draw no inference against her case about she being the sole deponent and this did not adversely impact on credit.
14 I am not persuaded by the submission about absent witnesses in this case. There is a threshold nature in serious injury applications. There may be some force in such an argument in a common law jury trial where damages are seeking to be established but I reject the suggestion here that caution and indeed rejection of her evidence should flow from a lack of affidavits from others. Her evidence did not need independent corroboration. It was consistent and persuasive.
15 It is also worth recalling a number of warnings from appellate courts have been given about placing too much reliance of very brief, computer driven clinical notes. This case is no different than others seen daily in these applications in illustrating that danger. These notes could not possibly record anything like a full or proper record of the interchange between doctor and patient in even the shortest of consultations.
16 For example this lady has endured a lot of gynaecological conditions leading up to major surgery October 2014. The problems at times are barely recorded in more than a couple of words and yet the probabilities are these major health issues would have been very fully discussed before undergoing such major surgery. The inadequacy of the computer notes was patent.
17 In any event while on that topic, it is clear that Ms King made a complete recovery after that operation. It involved a total hysterectomy and any lower spinal and groin symptoms that were of gynaecological origin fortunately left her after the successful surgery in October 2014. I am satisfied the spinal impairment she still suffers from was caused by the injury to her lower back involving discal damage suffered at work on 6 October 2014.
18 Two DVD’s were tendered.[10] They involved short segments of film on 29 October and 30 November 2017 and 26 January 2018. They warrant comment. Such brief films are no more than the briefest of snapshots of the plaintiff’s life over the last three and a half years. The defendant admitted there had been seventy five hours of surveillance and only fifty one minutes of film was shown.
[10]Exhibits 1&2
19 The films did not show the plaintiff doing anything strenuous, repetitive, particularly dexterous or heavy. She did not bend over to any extent. She did not lift or carry anything heavy or awkward. There were many unexplained gaps in what was shown even though she was still in the camera’s view. For example there were occasions when the opportunity to show her getting in and out of a vehicle were not always shown.
20 At times she would walk slowly with her daughter for a few minutes and then for some reason, the film would stop when she was still plainly in view. Twice she seemed to grab or hold her back. Much was made of her going to Brighton on Australia Day this year. But I accept her evidence it was a “once in a blue moon” occasion.[11] She went there at her daughter’s invitation[12]. Accordingly I accept her evidence this was not even a usual day for her even though as I have indicated, there was really nothing shown on the films that affected credit.
[11]T111
[12]T167
21 She was challenged about what she said in affidavits and what was shown on film and I will just refer to four examples where inconsistency was suggested. Firstly she was taken to her affidavit where she stated she shopped “in small amounts”[13]. I reject the suggestion the plaintiff was filmed doing any shopping that did not match that description. Secondly the amount of time she could walk was disputed. She walked for a few minutes at a time then the film just stopped. At times she just stood. Certainly there was no uninterrupted walking for anything like the forty five minutes suggested. I also reject the suggestion that she “walked sprightly.” Thirdly to suggest the drive on a public holiday from Taylors Lake is “over an hour” is wrong. It is basically a CityLink freeway journey and significantly less than that. Fourthly the criticism of her affidavit statement that she was “reluctant to leave the house for too long”[14] is not well founded by the DVD’s. She left home for a few hours with her daughter and went on brief shopping tasks and really that was all that was shown. In the end these films recorded nothing inconsistent with her evidence in any material way.
[13]PCB 19
[14]PCB 19
22 Neither exhibit was inconsistent with a person who has a back impairment. Nor did the film show anything inconsistent with a person suffering major depression. The plaintiff’s case is not that she lives the life of a hermit. She still must shop and drive and it needs to be remembered she still manages to work fifteen hours a week, albeit at her own pace and for her own partner as employer. These two DVD’s did not impact on credit nor on the medical opinions expressed. I found the plaintiff to be a reliable, well-motivated woman who at all times was attempting to tell the truth even though some matters were hard to recall.
23 It was suggested she was more guarded in re-examination than cross-examination. I doubt I have seen a witness who is not more comfortable with her own counsel who she knows than opposing counsel. In any event she was at all times an honest, reliable though quite unwell witness.
24 I will deal with the medical evidence later but it is useful at this stage to say that the only doctor on either side to see both DVD’s was the plaintiff’s treating psychiatrist, Dr Datta. After argument on the first hearing day they were sent to him. They did not cause him to change his original view that she could only work a maximum of “approximately fifteen hours a week on a consistent sustained and reliable basis.”[15] The DVD’s had a similar lack of impact on my views of both the evidence and the worker’s credit.
[15]PCB 43a
25 Turning to the medical evidence I will focus initially on paragraph (c).Her treating general practitioner over some years has been Dr H Bhoga. She noted from the outset the gynaecological problems as well as lumbar disc prolapse together with depression and anxiety.[16] She referred her off for specialist treatment with respect to each of her conditions. In her last report in September 2017 she noted there were regular reviews from the psychiatrist, Dr Datta, and antidepressant medication might be required long term. Her consistent specialist psychiatric treatment for two and a half years speaks of a severe mental disorder in her case where sadly her need for anti-depressants has been met with a severe reaction to such drugs.
[16]PCB 28
26 As to work she thought Ms King was unable to perform her pre-injury duties as a result of the impact of the injuries. She put a firm and permanent limit on earning capacity, although without hearing from her, she seems to include both the back injury together with the mental health depression and anxiety. She then said “However, she has commenced working from home on a part-time basis, in administration role since 8/9/2016. She works 15 hours per week, likely to be indefinite.”[17]
[17]PCB 31
27 Some aggregation of injuries, which is not permitted in determining serious injury, was contained in a certificate of capacity dated 19 October 2017. It limited her to 15 hours a week and noted some physical restrictions as well has recording that her attention, concentration and memory had all been affected.[18] The width of the physical spinal restrictions also support my finding that she is limited to a maximum of fifteen hours due to spinal impairment just as she is also limited to that extent by her depression.
[18]PCB 31a
28 The plaintiff was referred to Dr Stuart Wild, consultant psychiatrist, in 2015 but his only report is quite out of date. Back in August 2015 he diagnosed adjustment disorder with depressed and anxious mood but thought the prognosis was uncertain. He went on to describe a very unpleasant adverse effect that antidepressant medication had had on her. This led to her ceasing the medication but this led to an unfortunate withdrawal syndrome which was a problem in itself. He thought she was more amenable to seeing a psychologist and sent her to Ms Luker.
29 She had been prescribed such medication by a musculo-skeletal physician, Dr Megan Eddy, who also noted the problems with it. She recorded the need for psychological and psychiatric attention and noted that in mid-2015 there was even suicidal ideation.[19] She diagnosed a “severe reactive depression” and stated “Glenys currently has no capacity for work. This is due to her severe psychological state.”[20] She needed ongoing psychological/psychiatric treatment. This is still occurring.
[19]PCB 46
[20]PCB 48
30 A report from the treating psychologist, Emma Luker, is very out of date. She treated her for a couple of sessions before the accident but I have already indicated they are of no relevance in this case. When she was rereferred in June 2015 by the treating psychiatrist, Dr Wild, there was a comment that the plaintiff needed more psychological treatment. This followed a very unfortunate reaction to antidepressant medication given to her. Ms Luker thought it was difficult to determine prognosis back in July 2015 but she did say even then “In terms of her mental health, I feel Ms King is currently unable to return work. She has ongoing difficulty with attention and concentration, poor motivation and low and irritable mood.”[21] I read this as a disentangled opinion.
[21]PCB 33
31 Dr S Datta has been the treating psychiatrist from October 2015 up to the present day. He has provided a number of reports and it is not necessary to go through them in detail. She had been “almost suicidal” in 2016.[22] The more recent opinions are most helpful. In August 2017 he noted she was extremely depressed. “She felt that hopeless that she felt that life was not worth living” and as to work “my opinion in relation to her work is that she is not suitable for her pre-injury employment, and I feel that she can only work for approximately 15 hours a week on a consistent sustained and reliable basis.”[23]
[22]PCB 38
[23]PCB 43
32 I accept this opinion from a specialist who knows her best of all with respect to any mental or behavioural disorder. Given the amount of time involved, on the probabilities his opinion amounts to a permanent loss of earning capacity for this sixty one year old that restricts her to a maximum of 15 hours a week in the rather sheltered environment in which she worked for her partner.
33 Dr Datta was sent the three DVDs in order to see whether or not they would change his opinion. They clearly did not because he reiterated in a short report dated 1 March 2018 “On the basis of what I have observed, and on the basis of my observations and treatment of the patient, Glenys King, there is nothing in the enclosures, that caused me to change my opinion expressed in my earlier report. I continue to believe that she is not suitable for pre-injury employment, and feels that she can only work for approximately 15 hours a week on a consistent sustained and reliable basis.”[24]
[24]PCB 43a
34 He did not have the Recovre report. On the probabilities this would not have influenced him given that the vocational assessment was based on a single interview and he had the considerable advantage of having seen the patient probably about thirty times over the last 2 ½ years.[25] I accept Dr Datta’s opinion.
[25]T170
35 The plaintiff relied on to medico-legal opinions from two psychiatrists. The first was from Dr M Tagkalidis dated October 2017. He noted a chronic low back injury and disentangled when he described a severe state of mental health: “I would suggest that the plaintiff is not fit for pre-injury employment on the basis of the psychological state with particular regard for the depressive and anxiety state with reduced energy levels, very poor concentration and frequent forgetfulness, poor stress tolerance, irritability, moderately impaired judgement under external stressors, reduced motivation and drive, impaired problem solving, and the high likelihood that she would decompensate into a more anxious and depressed state with more frequent panic episodes under normal workplace stresses. I concluded that the psychiatric symptoms would result in major functional limitations such that the claimant could not perform pre-injury duties on a reliable and consistent basis.”[26]
[26]PCB 69
36 I accept that is a severe condition. These wide ranging consequences indicate a severe mental disorder in her case that is likely to last for the forseeable future.
37 He went on to make a comment about the normal work environment that is inadmissible being beyond his expertise. Nevertheless the conclusion that I have come to on all of the evidence is that when the open marketplace is looked at realistically, as is required of a court looking at residual capacity, the plaintiff only has a nominal or theoretical capacity to work 15 hours per week. She makes mistakes and given who she works for they are able to be covered up. Reality says that would not happen in this day and age out in the real world. Her presentation in court made it clear this lady is all but unemployable in the real world due to her very obvious severe mental health problems.
38 The other specialist psychiatrist the plaintiff relied on was Dr Cooney who was engaged by the defendant. She saw the worker in 2016. Her diagnosis was “She has a Major Depressive Disorder.” She thought the condition was stable and “Currently the worker has no current work capacity.”[27] Dr Cooney went on to say further “The Major Depressive Disorder has resulted in significant impairment in Ms King’s day-to-day life and social functioning, and concentration. From a psychiatric perspective she does not have a work capacity”.[28] Not surprisingly Dr Cooney was not asked to see the worker again.
[27]PCB 113
[28]PCB 114
39 I accept Dr Cooney’s opinion as supporting the other psychiatric evidence that amounts effectively to Ms King having no realistic work capacity at all due to her severe mental health impairment. At best she can keep working 15 hours a week but in an employment capacity that is rather artificial in the sense that she works at home, at her own pace and for a sympathetic partner.
40 Turning to the psychiatric evidence of the defendant there were four reports from the consultant psychiatrist, Dr S Varma, but only one was tendered. It is now very dated being over three years old so it is of limited assistance now in March 2018. In February 2015 he thought she had a major depressive disorder secondary to a work-related injury.
41 Dealing with her mental disorder or disease he did not think she had any work capacity. He expressed that as “The worker does not have a capacity for any work at the moment because she is depressed, anxious, confused, feels almost in a black hole and has totally lost her self-confidence and self-esteem.”[29] As it was early days he thought she needed to be reviewed and made some further treatment comments but that was the only report from him that has been tendered. So I am left with his view at the time that “she is totally unfit for any employment.”[30] On all the evidence his pessimism has been found in time to be accurate, as looked at realistically, she has no earning capacity when the requirements for reliability, accuracy and consistent performance are kept in mind out in the open employment market.
[29]PCB 128
[30]PCB 128
42 The only other psychiatrist the defendant has relied on is DrT Entwisle. He only saw the worker once in 2017 and at that time he thought “Ms King does not have a capacity for full-time employment but does have a capacity for work in a suitable environment and is doing so currently.”[31] Of course he was referring to the rather protected employment situation that she had with her partner about which he said “She is thankful that she can work for her partner to set up a home office for her. This gives her 15 hours a week of something to do”.[32]
[31]DCB 5
[32]DCB 3
43 Then for some reason the defendant’s solicitors only sent him one of the two DVD’s and the surveillance report together with a vocational assessment report from Recovre. Why he was not sent the actual films of all three dates filmed in exhibits 1 and 2 I do not know. He changed his opinion after being sent this limited material and now said that Ms King would have a capacity to work for at least 25 hours a week. By way of contrast her treater, Dr Datta, was sent both DVD’s showing the three surveillance dates filmed for his comment.
44 I do not accept this change of opinion from Dr Entwisle as to the hours she could work. Without hearing from him it is not clear to me how he could alter his view on seeing the report of one day of film only and perhaps one DVD. It is just not clear whether he actually viewed any film himself. He used ambiguous language in calling a DVD “documentation”. He put in brackets (and DVD) for some reason. He then used the word “notes” when most people would say “shows” if they had actually watched a film. Whatever the truth I did see all the film and what I observed showed no basis for uplifting her work capacity from 15 hours to 25. It is an unsatisfactory second letter or report and I do not accept it as properly explained or sound. At best he has only seen one DVD. There was no proper foundation for changing his original opinion.
45 Even more important than trying to work what he did personally see or not see, he also was completely wrong in his assertion the plaintiff had not seen a treating psychiatrist, Dr Datta, for “at least seven months”.[33] This is totally erroneous as she is still seeing him every 4 to 6 weeks and has done for years.[34]
[33]DCB 20
[34]T 170
46 The Recovre vocational assessment report was tendered by the defendant.[35] It is significantly flawed. It was based on such a selective and inadequate body of medical material it is difficult to comprehend how that could have occurred. All Recovre was sent by the defendant solicitors in January this year was a December 2017 report from the third psychiatrist, Dr T Entwisle, chosen by the defendant together with one December 2017 report from Dr David Barton.[36]
[35]DCB 30-67
[36]DCB 31
47 For some unexplained reason the defendant chose not to send the reports the insurer had obtained from its other psychiatrists, being the report from Dr Cooney and the four from Dr Varma. The defendant also had a litany of reports from the plaintiff’s solicitors that could also have been sent to Recovre for an informed, objective view of earning capacity. The defendant had also arranged for the plaintiff to be further examined by Dr Barton on 15 December 2017 as well as by Mr M Dooley on 13 December 2017. Why these reports were not awaited before getting Recovre to send its report is not clear. Recovre saw the plaintiff on 12 January 2018 and could easily have been informed that several more reports were only days away. It would have given Recovre a more solid basis on which to give a current opinion about the plaintiff’s earning capacity.
48 The defendant neither gave anything like all of its own reports then in its possession, let alone any from the plaintiff doctors, nor did it wait a few days and send the up-to-date reports from its own chosen practitioners, namely Dr Barton and Mr Dooley. I reject the Recovre report. It is not well-founded.
49 I am satisfied the plaintiff has suffered an admitted psychiatric injury described as Major depression that is likely to remain for the foreseeable future. Looked at realistically it meets the test of “severe”. Considering the realities of the employment world it amounts to this 61 year old worker having effectively lost her earning capacity. At best she can do some work at our own pace, with breaks, in her own home, up to a maximum of 15 hours per week but in the rather sheltered environment of her partner being her boss. On any view she has proved a 40% or more permanent loss.
50 Putting aside totally the psychiatric injuries and assessing the organic spinal impairment, I am satisfied the weight of the evidence is that her physically based earning capacity also has a maximum limit of 15 hours per week.[37] As well as her own doctor I accept the well explained opinions of Doctors Horsley and Slesenger regarding lost earning capacity.[38] As I have concluded the test of loss of earning capacity has been proved under paragraph (c) it is not necessary to fully articulate my reasons regarding paragraph (a). Unless there is any doubt, I am satisfied on the probabilities the test of 40% or more permanent loss of earning capacity has been proved due to her constant physical spinal pain and the impairment it causes on its own and apart from her mental health problems.[39]
[37]PCB 31a
[38]PCB 53-59,72-83
[39]PCB 16-18,23-24
51 In accordance with practice it follows leave is also given to bring proceedings for pain and suffering damages.
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