Lowe v Victorian WorkCover Authority
[2024] VCC 200
•5 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00151
| CATHERINE LOWE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 February 2024 | |
DATE OF JUDGMENT: | 5 March 2024 | |
CASE MAY BE CITED AS: | Lowe v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 200 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (c) of the definition of “serious injury” – workplace bullying – issue of “causation” – chronic fatigue syndrome and fibromyalgia
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Transport Accident Commission v Katanas (2017) 262 CLR 550; Humphries & Anor v Poljak [1992] 2 VR 129; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jovceva v Transport Accident Commission [2019] VSCA 105
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Dealehr with Mr Z Partos | Carbone Lawyers |
| For the Defendant | Mr G Hevey with Ms K Bradey | Lander & Rogers |
HIS HONOUR:
1Catherine Lowe worked as a pharmacy assistant at the Doncaster My Chemist store from 24 July 2012 to 4 April 2014. She claims that she was bullied during that time. In this proceeding, she claims that such bullying resulted in a psychiatric injury[1] which qualifies as a serious injury in accordance with s134AB(37)(c) of the Accident Compensation Act 1985. This is said to be the case because the psychiatric injury allegedly caused or aggravated her pre-existing chronic fatigue syndrome (“CFS”) and caused a condition of fibromyalgia. This is said to result in a total incapacity for work, commencing in mid-2014 and continuing to this day. In this case, the critical questions are whether any psychiatric injury resulted from the workplace bullying,[2] and, if so, did such injury cause a worsening of the CFS or a cause of the fibromyalgia.
[1]For ease I will use the term “psychiatric injury”, however the full definition is that of serious injury in accordance with s 134AB(37)(c) being a “permanent severe mental or permanent severe behavioural disturbance or disorder”
[2] Jovceva v Transport Accident Commission [2019] VSCA 105 at [51]
2While there were other areas of significant dispute, many of them were not seriously contested in this proceeding. This was because the Victorian WorkCover Authority (“VWA”), while formally disputing the issue of bullying actually occurring, did not, in this proceeding, call any evidence to contradict Ms Lowe’s affidavits as to the alleged workplace bullying. Second, Ms Lowe put the gross earnings figure that most fairly represented her earnings in the three years before and three years after injury at $41,408, upon the basis of her 2014 income tax return.[3] As Ms Lowe claimed she was totally incapacitated from April 2014, the VWA focused on the issue of the cause of any incapacity and said nothing against the figure of $41,408. Similarly, not much cross-examination, nor any submissions, were made as to the level of alleged incapacity, as the VWA focused on the cause of the alleged incapacity.
[3]Plaintiff’s Court Book (“PCB”) 590
3While the critical issue in the case was causation, this became complicated because Ms Lowe changed her case during the course of the hearing. On the first day, Ms Lowe brought claims under both paragraphs (a) and (c) of the legislation. The paragraph (a) case was that the alleged workplace bullying had caused or aggravated her CFS and caused her fibromyalgia. Her paragraph (c) case was that the workplace bullying had caused psychiatric injury involving, inter alia, stress, anxiety, depression, an adjustment disorder and Post-Traumatic Stress Disorder (“PTSD”), which, in turn, caused or exacerbated the CFS. However, on the second day of the proceeding, Ms Lowe abandoned her reliance on the paragraph (a) claim. She proceeded under paragraph (c) only. However, she amended that paragraph (c) claim and claimed that the alleged workplace bullying had caused psychiatric injury involving, inter alia, depression, an adjustment disorder and PTSD, causing or exacerbating the CFS and fibromyalgia.[4]
[4] Fibromyalgia is underlined to show the amended particulars
4As set out above, the VWA put causation in issue. That submission had two elements:
(a) whether the alleged workplace bullying resulted in psychiatric injury; and
(b) if the answer to the question was yes, whether such psychiatric injury caused or aggravated Ms Lowe’s CFS and/or fibromyalgia.
5For the reasons which follow, I have found:
(a) Workplace bullying resulted in psychiatric injury; and
(b) that such psychiatric injury did not cause or aggravate her CFS or fibromyalgia impairment;
(c) the impairment consequences of the found psychiatric injury could not be separated from the consequences of the CFS or fibromyalgia to the extent necessary to make any finding that Ms Lowe’s impairment consequences satisfy the test of being “severe”[5]
[5] Peak Engineering & Anor v McKenzie [2014] VSCA 67
Relevant Facts
6Ms Lowe was born in December 1967. She finished school in about Year 11. She completed a hairdressing apprenticeship over four years and owned her own salon thereafter. She had two children. In about 1996, she left the workforce to care for them. Her husband ran his own business and she was a director of that business for some time, but did no hands-on work.[6] From about the age of sixteen, she had been diagnosed with Epstein-Barr virus (glandular fever). She deposed that she has coped with “ongoing issues” related to fatigue since that age.
[6]PCB 7
7In about 2010, she began seeing Dr Janne Randall, her general practitioner (“GP”) for tiredness and joint pain.[7] She was diagnosed with Hashimoto’s hyperthyroidism and prescribed Thyroxine. It appears there were financial issues plaguing the family business around this time in 2010.[8] The business that her husband was involved with was sold in 2011.
[7]Defendant’s Amended Court Book (“DACB”) 282-285
[8]DACB 289
8As to her relevant medical history at this time, the medical notes for 2011 reveal no consultations.
9On 11 May 2012, she consulted Dr Maria Flores-Vivas.[9] Her notes record that Ms Lowe was suffering from ongoing feelings of being tired, which had worsened when her “husband go (sic) bankrupt and she got worse”.[10] In cross-examination, Ms Lowe was adamant the business did not ever go bankrupt, but was sold in 2011, and, that, in fact, it was her husband who had gone bankrupt personally in 2013. She was also recorded by Dr Flores-Vivas as requesting a referral to “[c]ounselling due to chrnic (sic) depression”.[11]
[9]DACB 444
[10]DACB 444
[11]DACB 444
10On 12 June 2012, she saw another treating doctor, Dr Avi Charlton, and requested a mental healthcare plan. When that doctor became aware that she had sought such a plan from another treating practitioner a month previously, he advised her to return to that doctor.
11On 14 June 2012, she returned to Dr Flores-Vivas for a mental health referral and was referred to a psychologist, Ms Karen Charlesworth.[12] She deposed to having six sessions with her over five weeks.[13] She deposed that her last consultation was on 28 July 2012. Around that time, Ms Charlesworth wrote to Dr Flores-Vivas in August 2012, noting that Ms Lowe had responded well to treatment and needed no further treatment.[14]
[12]DACB 444
[13]PCB 9 and PCB 37
[14]PCB 57
12It will be recalled that she commenced at My Chemist on 24 July 2012. She worked Monday to Friday 9.30am to 5.30pm. She was on probation for the first six months and was then appointed as a full-time permanent staff member. During this time, she deposed:
“17. Due to bullying and repeated unreasonable behavior (sic) of other staff and the inaction of management in dealing with the situation, I suffered injury in the course of my employment at My Chemist from July 2012 to April 2014.
18. The bullying included the following:
a. I was ostracized by other full-time co-workers Ashleigh, Francesca and Seva;
b. I was treated with disrespect by Ashleigh, Francesca and Seva;
c. I was verbally abused by Francesca on a regular basis, approximately every 6 weeks;
d. I was deliberately left to work on the registers myself by Ashleigh, Francesca and Seva, despite it being a requirement that all staff rotate duties;
e. Ashleigh, Francesca and Seva spoke badly of me to the casual workers and tried to turn them against me;
f. The managers, Lyn Schiavello and Marie Youssif, did not heed my repeated concerns about Ashleigh, Francesca and Seva’s behaviours, and were ineffective in dealing with issues affecting the work environment;
g.Marie Youssif was herself influenced by Ashleigh, Francesca and Seva’s dislike of me, and began to exhibit signs of annoyance at me, including being rude and abrupt when I asked questions.”[15]
[15]PCB 10-11, paragraph [17]
13She deposed that, when her supervisor, Lyn Schiavello, went on leave in February 2014, things worsened. By late March 2014, “things had gotten very bad”.[16]
[16]PCB 12, paragraph [24]
14On 3 April 2014, when Ms Lowe arrived at work, she began crying and told Ms Schiavello she did not want to be at work. Ms Schiavello took her outside and told her many other things the workers had said about her. Ms Lowe was off work for the next eleven days. A meeting was called and Ms Lowe attempted a return-to-work plan on reduced hours. She ceased work towards the end of June 2014. She has not worked in any capacity since then. She made a WorkCover claim, which was rejected.
15It is not necessary to detail each of the medical practitioners Ms Lowe has seen since April 2014. This would tend to confuse the issues before the Court due to the voluminous nature of such attendances on medical practitioners and allied health carers. It was explained by Ms Lowe, and accepted by the VWA, that Ms Lowe embarked on a “quest” to discover what ailed her; investigating, among other things, Lyme disease, heavy metal poisoning, fibromyalgia, psychiatric injury, aggravation of hypothyroidism and CFS. This has resulted in the involvement of both medical practitioners and other practitioners, such as chiropractors, naturopaths, kinesiologists, homeopaths and herbalists, among others. To the extent necessary, I will refer to those materials in the context of analysing the central issues before the Court.
Causation: Did Ms Lowe sustain a mental or behavioural disturbance or disorder arising out of or in the course of her employment?
16In Transport Accident Commission v Katanas,[17] the High Court quoted with approval from Humphries & Anor v Poljak[18] at paragraph [22]:
[17](2017) 262 CLR 550
[18] [1992] 2 VR 129
“The majority of the Court of Appeal did not state that the concept of a range or spectrum of injuries, as such, was of limited utility. To the contrary, they explicitly embraced the concept of the range as part of the narrative test. As they said:
‘With the qualification that regard must be had to the use of the word ‘severe’ in the case of mental or behavioural disturbance or disorder, the task which the judge had to undertake was that explained by Crockett and Southwell JJ in Humphries v Poljak as follows:
“[W]e think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s (4)(d) when reliance is placed upon sub-s (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.””
(Footnote omitted.)
(emphasis added.)
17In support of her submission that the workplace bullying resulted in the infliction of a serious injury of a mental or behavioural nature, Ms Lowe calls in aid the following arguments:
(a) her generally good pre-existing mental health, as evidenced by Ms Charlesworth in August 2012, contrasted with her mental state in April 2014. That latter state is evidenced by:
(i)her affidavit;
(ii)her husband’s affidavit;
(iii)her contemporaneous general practitioner WorkCover certificates and notes as to her condition;[19]
(iv)the contemporaneous reporting of the treating doctor, Dr Graeme Freemantle, in July 2014, who diagnosed her with an adjustment disorder with depressed and anxious mood;[20]
(v)the contemporaneous reporting of her psychologist, Ms Pamela Rosewarne, in July 2014, with a diagnosis of adjustment disorder with mixed anxiety and depressed mood. She recorded numerous panic attacks, sometimes on a daily basis;[21]
(vi)the Medical Panel opinion;
(vii)the reporting of Dr Larry Hermann, a psychiatrist who diagnosed PTSD and a major depressive disorder;
(viii)the reporting of Ms Evelyn Field, who diagnosed a complex PTSD.
[19]DACB 439-441
[20]PCB 58 and 65
[21]PCB 68 and PCB 70
18In contrast, the VWA submitted that:
(a) Ms Lowe had a longstanding history of psychiatric injuries and the contemporaneous reporting set out immediately above of Dr Freemantle and Ms Rosewarne was no more than a continuation of her underlying psychiatric problems;
(b) great weight should be placed on the medical report of a medico-legal practitioner, Dr Wendy Triggs, psychiatrist, who saw and examined Ms Lowe contemporaneously. Her report is dated 16 May 2014.[22] There was controversy about the accuracy of that report. It is useful to deal with that issue now. That report opined that Ms Lowe did not suffer from a psychiatric illness.[23] Ms Lowe wrote a letter of complaint to the WorkCover Authority about the way the consultation occurred and pointed out numerous factual inaccuracies in the report.[24] To this complaint, Dr Triggs provided a response on 18 July 2014. The critical component of the criticism relates to the history of the workplace bullying which Dr Triggs recorded. Ms Lowe complained that she was never asked about the events at work at all by Dr Triggs. She made this point in her complaint[25] and again in cross-examination.[26] She alleged that Dr Triggs must have taken this from statements of the other workers. Dr Triggs denied this. This is of central importance, because it can be expected that a valid medical opinion is based on a correct appreciation of the facts. If those facts are incorrect in a material way, it is often the case that the concluding medical opinion is changed. Here, there is some real difficulty in Dr Trigg’s report. She clearly notes in her first report that she had read the attachments to the letter of instruction.[27] However, in her second report she writes “[t]here were no other sources of information at all”.[28] Given Ms Lowe’s denial of providing the information as to the bullying behaviour, there is real doubt as to how the information was obtained by Dr Triggs. I also record that the VWA did not put into evidence the letter of instruction which might have resolved the issue. I consider this discrepancy as to identifying the factual basis on which Dr Triggs based her opinion to be so significant that I do not consider any weight can be attached to her opinion as an expert;[29]
(c) the next evidence the VWA sought to draw on to support the submission that no psychiatric injury had occurred, was that of another medico-legal psychiatrist, Dr Timothy Entwisle. He has seen her on numerous occasions since 2018 and his last report was tendered on 4 September 2023. He considered that her current condition was not work related.
[22]DACB 19
[23]DACB 25
[24]Plaintiff’s Supplementary Court Book (“PSCB”) 3
[25]Further Plaintiff’s Supplementary Court Book (“FPSCB”) 6
[26] Transcript (“T”) 32 Line (“L”) 17-20
[27]DACB 20
[28]DACB 28
[29]Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705
Consideration of the issue of causation of the alleged mental or behavioural disturbance
19Coming to consider these matters, I find that the contemporaneous recordings are of particular importance. In the years from 2010 to July 2012, there were episodes of depression and anxiety. This necessitated the Mental Health Care Plan in early 2012 and the referral to Ms Charlesworth. She then started work and this had a very positive effect. So much so that, after six sessions with Ms Charlesworth, Ms Lowe was cleared of any depressive symptoms. I consider the evidence leads me to conclude that, from August 2012, Ms Lowe had a good state of mind and was not suffering from a mental or behavioural disturbance. I do not consider I have to perform any further analysis in accordance with Petkovski v Galletti,[30] to separate any pre-existing condition from the alleged injury which occurred, and is said to manifest, in April 2014. I find that, as at 3 April 2014, Ms Lowe suffered a mental behavioural disturbance or disorder resulting from the workplace bullying. I find that this can be classified as a mild adjustment disorder with mixed disturbance of mood and behaviour, as the Medical Panel ultimately found in 2019.[31] I come to that conclusion, given Ms Lowe’s description of events on 3 April 2014, which she describes as leaving her unable to enter the store to work, and then crying. She deposed, “I had 11 days off work and was feeling devastated and very anxious”.[32] I accept that evidence. The contemporaneous recordings of Dr Flores-Vivas, Dr Freemantle and Ms Rosewarne, also support my finding. I consider this particularly strong evidence, as they were independent treating practitioners providing contemporaneous recordings of Ms Lowe’s medical conditions. I prefer their opinions to that of Dr Triggs for this reason. This is in addition to the deficiency in Dr Triggs’ opinion, as set out above. I do not accept Dr Entwisle as aside from Dr Triggs, his opinion is such an outlier.
[30][1994] 1 VR 436 (“Petkovski”)
[31]DACB 200
[32]PCB 12 at paragraph [25]
20It is now necessary to consider whether or not Ms Lowe developed further mental and behavioural disturbances and/or disorders as some of her medical practitioners have deposed. For example, she has been diagnosed as suffering from PTSD and a major depressive disorder.[33]
[33]Ms Field at PCB 116; Mr Hermann at PCB 277 as to PTSD; Dr Saji Damodaran PCB 462 as to Major Depressive Disorder and anxiety.
21I do not find that Ms Lowe sustained PTSD or major depressive disorders, as she claims. I reject that submission for the following reasons. The contemporaneous recordings around 2014 suggest a markedly different diagnosis. While it can be accepted that conditions change and develop, the fact is Ms Lowe left work in July 2014 and has not returned. The first diagnosis of PTSD is made by Ms Field, a psychologist, in October 2016. This is over two years after Ms Lowe ceased work. It is not adequately explained in the materials how the symptoms recorded by her treating practitioners in 2014 (relating to her psychiatric state) worsened to the point of being classified as PTSD by Ms Field, or as a complex PTSD, as defined by Dr Siobhan Reddel in 2018. I do note that Dr Reddel is a general practitioner and epidemiologist, and does not practise in the area of psychiatry. I accord her opinion less weight as a result. The psychiatrist who did examine Ms Lowe on referral from her treating psychiatrist, Dr Graham Wong, specifically considered that she did not have PTSD, but, rather, anxiety symptoms.[34] I prefer his reporting to that of Dr Reddel, Dr William Soo and Dr Hermann.[35] This is for the same reasons as set out above. For example, at the time when Dr Soo came to opine after seeing Ms Lowe, it was nearly five years after she had left the workplace. Similarly, Dr Hermann reported after six years. There is no explanation as to why her conditions, as found by her treating doctors in 2014, had worsened to such an extent that she had developed a condition such as PTSD, despite not having been at work for over four or five years. I also find that the opinion of the treating psychiatrist, Dr Wong, fits more readily with the analysis of the treating practitioners in 2014 and the Medical Panel opinion of 2019.
[34]PCB 122
[35]PCB 277
22As to the medico-legal reporting of Dr Damodaran in 2023,[36] who diagnosed a major depressive disorder and an anxiety disorder, I do not accept that opinion, as I do not consider it adequately explains Ms Lowe’s clinical course. I would repeat my reasoning immediately above.
[36]PCB 462
23It is sufficient that I summarise my findings in this regard as being that I consider Ms Lowe suffered, as a result of her workplace injury, an adjustment disorder with mixed anxiety and depression.
Did the adjustment disorder with mixed anxiety and depression cause or aggravate the CFA and/or fibromyalgia?
24For the moment, I will leave consideration of whether the mental or behavioural disturbance or disorder is long term. This is because, chronologically, there is a much more important point which now arises. That is, the major plank in Ms Lowe’s case. It can be expressed in the following terms:
(a) that the psychiatric injury had the consequence of aggravating her CFS and causing her fibromyalgia. The VWA denied this. I consider this to be a decisive issue. If Ms Lowe is correct, then the evidence as to her capacity for work is largely one way: that she is totally and permanently disabled and has been since 2014. She would, therefore, be successful in her claim before the Court;
(b) However, if the aggravation of the CFS and cause of the fibromyalgia are not a consequence of the mental disorder, but exist independently of it, then Ms Lowe cannot succeed. This is because the evidence entangles the consequences of the mental disorder with the consequences of the CFS and fibromyalgia to such an extent that no meaningful analysis of the impairment consequences of the found mental or behavioural disturbance or disorder alone can be made.
Ms Lowe’s case on causation of the CFS and fibromyalgia
25Turning, then, to deal with Ms Lowe’s submissions. Ms Lowe calls in aid the following matters to support her claim that the aggravation of CFS and cause of fibromyalgia was the mental disorder caused by the workplace bullying. These are in order:
(a) her relatively benign history of CFS in the years immediately prior to April 2014, noting, particularly, that she was able to work full-time normal duties’ work from 2012 to mid-2014;
(b) the intensity of the events from February to April 2014, resulting in the frank episode at work on 3 April 2014;
(c) the almost immediate onset of symptoms associated with the aggravation of CFS and onset of fibromyalgia, as was deposed to by Ms Lowe and recorded by Dr Flores-Vivas on 15 April 2014,[37] and Dr Freemantle, in the months thereafter.[38] I do note that, while there is recording of fatigue, there is no diagnosis in Dr Freemantle’s report of 12 July 2014 of CFS or fibromyalgia, nor in the reporting to her homeopath, Mr Mark Wells, in May 2014, of increasing fatigue;
[37]PCB 64
[38]PCB 65
(d) opinions of various treating doctors:
(i)specifically, Dr Randall, who opines that bullying “precipitated a recurrence of the fatigue 18 months ago and she has had it since then”;[39]
[39]PCB 77
(ii)Professor Geoffrey Littlejohn, rheumatologist,[40] though I note that, while he was called in aid, he does not diagnose fibromyalgia and it is not clear how he deals with causation of the CFS and fibromyalgia at all;
[40]PCB 79
(iii)Dr Fiona Enkelmann, who reported on 20 June 2016, that “the fatigue triggered from workplace bullying continues to have a profound impact”;[41]
[41]PCB 80
(iv)her psychologist, Ms Lisa Hare, who reported on 27 July 2016, and who considers that she had a relapse of CFS triggered by workplace bullying;[42]
[42]PCB 81
(v)Ms Judy Meagher, a kinesiologist, in a report dated 12 September 2016;
(vi)Ms Field, a psychologist who reported on 18 October 2016, 3 November 2016, 9 April 2018, 25 October 2018, 11 August 2021, 25 March 2022, 19 April 2022 and 11 December 2023, and who opines:
“The bullying at work created a huge amount of stress and trauma and presumably triggered the symptoms of PTSD, chronic fatigue and precipitated the onset of fibromyalgia.”;[43]
[43] PCB 87
(vii)Dr Geoff Kemp, a treating doctor who reported on 31 October 2016, 27 March 2018 and 6 December 2018, who opines, she is “suffering from chronic fatigue, due to a combination of synergistic infections”.[44] His opinion does not support Ms Lowe’s case, is isolated, and no other doctor accepts this proposition, so I put it aside. In later reports, he has a slightly different opinion, particularly as to the effect of the:
[44]PCB 90
“… adversarial structure of the current compensation process seems to be designed to serve the interests of those who are ‘playing the game’ all the time… .”[45]
[45]PCB 152
I consider this to represent the doctor adopting the true role of an advocate, rather than offering a medical opinion, and, as such, I put his opinion aside on this basis as well;
(viii)Mr Jonathan Baker, an osteopath, who reported on 2 November 2016.[46] His opinion does not bear on the question at hand, and I put it aside;
[46]PCB 93
(ix)Dr Sharryn Lydall-Smith, a psychologist, who reported on 8 November 2016.[47] She saw her briefly in 2016 and commented on her extreme fatigue, but made no comment as to causation of that fatigue;
(x)Dr Clayton Thomas, a pain specialist, who reported on 2 January 2018,[48] and opined that Ms Lowe had chronic CFS, but did not opine as to its cause. His report was also compromised by having no history of the alleged bullying. I put this report, and its opinion, to one side, given it offers no opinion as to causation;
(xi)Dr Reddel, a general practitioner and epidemiologist, who reported on 6 January 2018 and 9 October 2018 and, who, at the time of reporting, had seen Ms Lowe some twenty-two times. She diagnosed a complex PTSD condition, which, for reasons set out above, I do not accept, namely that there is no real path of reasoning to explain why the psychiatric state deteriorated to such an extent after 2014, noting the diagnoses at that time, and given the fact she left work in April 2014;
(xii)Dr Wong, a psychiatrist, who reported on 27 April 2018.[49] He considered that she did not have a PTSD and had anxiety symptoms which stemmed from her workplace bullying. That opinion, to me, seems important, because he was a relevant, well-qualified expert, opining in his field of expertise. He made comments as a treating practitioner. As I have set out above, I accept his opinion as to Ms Lowe’s psychiatric state. He made no comment as to the cause of the CFS or fibromyalgia;
(xiii)Dr Soo, a psychiatrist, who reported on 6 December 2018.[50] He diagnosed a PTSD related to workplace bullying. He records that Ms Lowe reported to him of worsening CFS. He made no comment as to whether the PTSD caused or aggravated the CFS or fibromyalgia. He reported again on 13 December 2021.[51]. In that report, he opined that her depressive illness could not be separated from her “comorbid medical diagnoses”, which included CFS and fibromyalgia.[52] It seems clear that he did not consider the psychiatric conditions caused or aggravated the CFS and/or fibromyalgia;
(xiv)Dr Marie Feletar, a rheumatologist, who reported on 31 May 2021 and 15 June 2022.[53] At her first consultation, she reviewed Ms Lowe’s blood tests and did not indicate that they recorded any abnormality.[54] She did not consider that there was any joint dysfunction and recorded that spinal x-rays were essentially normal. She recorded fatigue was the main symptom. She also reported on 15 June 2022 and recorded that there was a normal joint and neurological examination. No comment was made as to causation of CFS or fibromyalgia;[55]
(xv)Dr Sandra Parsons, a treating doctor/general practitioner,[56] who opined that unresolved trauma from the workplace bullying was a “possible cause and trigger for FM and CFS”;[57]
(xvi)Dr Rashmi Cabena, an integrated general practitioner.[58] He recorded a diagnosis of CFS and fibromyalgia contributed to by, among other things, heavy metals and adrenal exhaustion. He did not nominate any psychiatric injury as a cause for these conditions;
(xvii)Ms Lisa McDonald, a naturopath,[59] who opined that the CFS and fibromyalgia were of unknown aetiology;
(xviii)Dr Hermann, a psychiatrist, who reported on numerous occasions in 2023,[60] and who diagnosed a PTSD and considered it would have been triggered by the CFS and fibromyalgia.
[47]PCB 99
[48]PCB 100
[49]PCB 120
[50]PCB 153
[51]PCB 271
[52]Ibid
[53]PCB 190 and 276
[54]PCB 191
[55]PCB 76
[56]PCB 195
[57]Ibid
[58]PCB 284
[59]PCB 249
[60]PCB 277
26In addition to that treating material, Ms Lowe also called in aid the reports of Dr Peter Blombery, who considered, in his first report, that the cause of CFS was outside his expertise.[61] However, in his supplementary report,[62] he considered the CFS and fibromyalgia had been exacerbated by bullying.
[61]PCB 435
[62]PCB 468
27Dr Damodaran, a psychiatrist, reported[63] that the Major Depressive Disorder and Anxiety that he had diagnosed had worsened her chronic pain disorder. He made no specific comment as to the CFS or fibromyalgia.
[63]PCB 462
The VWA’s case on causation of the CFS and fibromyalgia
28Against this evidence, the VWA primarily calls in aid the reporting of two medico-legal rheumatologists, Dr Loretta Reiter and Dr Ramesh Arora. They also, to some extent, rely on the treating rheumatological opinion of Professor Littlejohn and Dr Feletar.
Analysis as to causation of the CFS and/or fibromyalgia
29Having considered the material, overall, I accept the VWA’s submissions. I do so for the following reasons.
30First, the primary link Ms Lowe draws between her mental and behavioural disturbance or disorder and her CFS and/or fibromyalgia, is of timing. This is because, within months of 3 April 2014, she was diagnosed with an adjustment disorder with mixed anxiety and depression, and her records note increasing symptoms of fatigue. In considering this point, regard has to be had to her past medical history of CFS since the age of sixteen and her affidavit evidence of having to manage the fatigue since that time. That material tends to suggest the presence of fatigue in her symptom complex at this time is no more than a continuation of a long-running situation. Fatigue was an ongoing feature of her life. For example, in 2010, she saw Dr Randall about it,[64] and also Dr Man Ngo,[65] when she was noted to feel “very tired”. The notes are then silent until May 2012, when Dr Flores-Vivas noted that her symptoms of fatigue got worse when her husband went “bankrupt”.[66] Ms Lowe disputed this note, but for reasons which I will come to, I accept the note is an accurate record. Similarly, those notes from May 2012 to April 2014 detail efforts to manage CFS.[67] It is also noteworthy that, on 17 June 2013, she reported to another treating doctor, “joint pain” and “tiredness” with no mention of work issues.[68] Similarly her affidavit material makes no mention of fatigue in 2013 caused by workplace bullying. Rather it focuses on worsening fatigue after April 2014. The relevance of that history is that it provides context to the reporting of fatigue symptoms and joint pain in 2014 after the date of injury. The history of joint pain and stiffness continued in late 2013, though her tiredness had abated. [69]
[64]DACB 281; also Dr Garun Hamilton at PCB 55
[65]DACB 408
[66]DACB 444
[67]DACB 442-444
[68]DACB 348
[69]PCB 63
31Ms Lowe submitted that her situation from July 2012 to April 2014 was a period which began when she was “wonderful”.[70] She deposed to working full time, being made permanent and getting a promotion. She submitted this supported the view that her CFS and/or fibromyalgia was under good control and she coped well with it. Two things can be said against this. First, the treating-doctor notes record ongoing issues with fatigue in that period, as I have set out above,[71] and refers to, again, in July 2012, feeling very tired.[72] She saw a doctor on 17 June 2013 with joint paint and tiredness.[73] And, despite being advised to take Thyroxine to deal with her Hashimoto’s in 2013, she ceased that medication and, in April 2014, thought her condition was actually a flare-up of hyperthyroidism. This material is contained in contemporaneous impartial notes of treating practitioners and I prefer it to the evidence of Ms Lowe.
[70]T60, L16
[71]Dr Flores-Vivas in May 2012; DACB 444
[72]DACB 290
[73]DACB 348
32The second reason that Ms Lowe’s evidence as to her state of tiredness related to CFS prior to April 2014, cannot be accepted, is the unreliability of her evidence.[74] This is demonstrated by the following. First, her inability to answer direct questions.[75] Despite my repeated warnings to her to directly answer questions,[76] she did not, instead, offering rambling monologues which were not responsive.[77] Such was the situation that, after I had advised her on three separate occasions to answer the questions posed, with no change in her manner of answering, I had to stand the matter down to allow her counsel a moment with her.[78] On her return to the witness box things improved, but only marginally. I do record, however, that in the period of re-examination, her responses were much crisper and more direct. I conclude from this that, in her cross-examination, she sought to advocate for herself to a degree, so my acceptance of her evidence is tempered by this. As a result, I found she was often argumentative and unhelpful. An example occurred when certain notes from the treating doctor were put to her. In particular, she was being cross-examined about financial stressors that were impacting on her fatigue. A note of a treating doctor was put to her. It stated “‘peed off’ we (sic) husband and financial issues at the moment”.[79] It was put that the family had financial issues and she was “pissed off” with her husband.[80] This was put in the context of business difficulties and her husband going bankrupt a few years later. In response, Ms Lowe suggested that “peed off” referred to a urinary tract infection,[81] and then said she was unclear what any financial issues were.[82] No medical evidence of a urinary tract infection appears in the treating doctor notes. Ms Lowe’s evidence was not plausible and reflected poorly on her credibility overall.
[74] See Riechelmann v McCabe [2024] NSWCA 37
[75] T44, L18
[76] T71, L19; T76, L5
[77] T43, L14
[78] T79-80
[79]DACB 289
[80]T59, L8-23
[81]T59, L18
[82]T60
33After further questioning, she finally gave evidence that the business was sold in 2011 and her husband was made bankrupt in 2013.[83] She described the period in-between as one in which her husband’s salary decreased by $60,000, they sold their home, downsized their car and had to make financial adjustments. She then noted that her husband when bankrupt in 2013. Her evidence on this point was difficult to follow. An example of this occurred in this exchange:
Q:“And the sale of this business for a million dollars still led eventually to your husband being bankrupted; is that correct? ---
[83] T52, L22
A: Yeah, so in 30 seconds, you've got - you've got Y2K.”[84]
Perhaps in context she was trying to describe business fluctuations but this is a further example of discursive rambling, non-responsive evidence that diminished the reliability of her evidence.
[84]T54, L9-12
34She also described, after the sale of the business, a decreasing income and a small debt that her husband had to pay. She described the moving of assets into her name prior to her husband going bankrupt. While that all had to be wrung from her question after question, she mentioned business fluctuations and the impact of Y2K on the business. I had the definite impression she was being evasive and unreliable. Overall, on this point, I consider the likely situation is that described in Dr Flores-Vivas’s note of 11 May 2012, that her “husband go bankrupt and she got worse”.[85] This is a contemporaneous note from an independent treating doctor, who is not in the position of an advocate. While care must be taken when placing too much weight on a single treating doctor’s note which is unchallenged, I prefer it to the evidence of Ms Lowe.
[85]DACB 444 – I accept that Dr Flores-Vivas may have confused whether it was the business or her husband who went bankrupt. However, the critical issue of a worsening CFS state caused by financial pressure remains
35Stepping back and assessing the material, in light of my finding that Ms Lowe was an unreliable witness, I find that her condition in 2012 had in fact worsened in respect of fatigue, due to the financial difficulties the family faced, particularly as of 2013, when her husband was declared bankrupt. This does not accord with her evidence of being in a “wonderful” state at the time when she started work. I do not accept her evidence on this point.
36Overall, Ms Lowe’s reliability is such that the issue of what her fatigue situation was like pre and post April 2014, is significantly clouded. I particularly find this is the case in regard to the situation post 2014. To the extent I can, I find that post April 2014, while there was reporting of increased fatigue, I do not accept her evidence of a materially-worsened level of fatigue post April 2014. I find that the reporting of joint pain and fatigue after 3 April 2014 is similar to that which was the situation prior to 2014.
37Turning, then, to the second argument in relation to the medical opinion as to the cause of CFS and fibromyalgia in the post April 2014 setting. I consider the specialist evidence relevant to these conditions almost uniformly opines against a link between psychiatric injury, aggravating CFS and/or causing fibromyalgia. Taking each in turn. The tendered report of Dr Reiter is, I consider, from a relevant expert who has been appropriately briefed. She, in addition to taking a comprehensive history from Ms Lowe, has applied it to, not only her own knowledge, but also in the context of numerous independent research articles. The analysis she conducts, I consider, is thorough and helpful to the Court. Her opinion is that there is no causative link between psychiatric injury and an aggravation of CFS and/or the causation of fibromyalgia. I accept her opinion. Dr Arora’s opinion is the second rheumatological opinion called in aid by the VWA. While it is not as thorough as Dr Reiter’s opinion, I still consider it an opinion from a relevant, appropriately-qualified expert. It is noteworthy that his report was commissioned by Ms Lowe, but ultimately not relied upon by her. It is a recent report and contains a history of Ms Lowe’s condition, and, also, it appears he was briefed with the relevant materials. He has not only received all the affidavits of Ms Lowe, but most of the relevant medical material. In addition, he conducted a clinical examination and had Ms Lowe complete a number of scoring assessments. This added a real degree of rigour to Dr Arora’s assessment. His ultimate opinion is that Ms Lowe’s conditions of CFS and fibromyalgia are unrelated to work. I consider his report to be thorough, balanced, fair and relevant to the issues of causation before the Court. I accept it.
38As to the reports of the treating rheumatologist, Professor Littlejohn, who first reported on 21 December 2015.[86] He recorded that she did have fibromyalgia and he considered it was “usually driven by stress related factors”.[87] However, he then went on to say that this condition had been present since age sixteen and had fluctuated over time. In his further report of 23 September 2016, he confirmed a diagnosis of fibromyalgia and stated that it was a longstanding condition of over thirty years, and symptoms were likely to persist over time, although will fluctuate.[88] I consider, on the question of causation inflicted by the workplace bullying, Professor Littlejohn’s report is of little use. In reality, his opinion is that she has a longstanding condition predating her employment that is simply fluctuating, as it has in the past.
[86]PCB 78
[87]PCB 79
[88]PCB 83
39As to the reporting of Dr Feletar, rheumatologist, from May 2021, she reviewed Ms Lowe’s blood tests and radiological investigation, and recorded that there was no abnormality detected.[89] Similarly, clinical examination revealed no neurological problems. She made no comment on causation.
[89]PCB 191
40Having assessed that rheumatological opinion, I now come to assess the medical opinion that Ms Lowe calls in aid.
41As for Dr Enkelmann,[90] she saw Ms Lowe for six sessions, ending in early 2016. She did not have access to the full range of medical tests and history that Drs Reiter and Arora had. Her opinion is also now some eight years old. Her opinion is of less weight than theirs due to these factors.
[90]PCB 80
42As to Dr Parsons,[91] she reported in 2018 via a questionnaire and lastly in a report of January 2024.[92] Her first report is said to support a diagnosis of workplace bullying aggravating fibromyalgia. Her last report seems to simply comment on the diagnosis of CFS and fibromyalgia, rather than delve into causation.[93] This is because she opines:
“It is my opinion that, [Ms Lowe] is suffering from chronic and unremitting Physical, Mental and Emotional symptoms that have been caused and/or exacerbated by the Work Place Bullying incident.”[94]
[91]PCB 144
[92]PCB 387; note: Dr Parsons’ other reports were dated 28 November 2023, 10 August 2023 and 4 April 2023.
[93]PCB 389
[94]Ibid
43Assuming this is an opinion that the workplace bullying has caused or aggravated the CFS and fibromyalgia, I consider it is based on an incorrect history. First, she does not appear to have a full and thorough history of the relevant material. In this case, such a history is particularly important to establish what, if any, role the workplace bullying has played in the causation of CFS and/or fibromyalgia. In her report dated 4 April 2023, she accepts Ms Lowe’s history of having CFS from 2010 to mid-2012 and staging a “full remarkable recovery”.[95] As set out above, I do not accept that to be the case, and, as such, I do not accept her opinion as to causation, such as it is. Second, Dr Parsons implicates PTSD in the development of Ms Lowe’s condition. I do not accept that diagnosis for the reasons set out above, and as a result I do not accept her opinion as to the role her psychiatric condition played in the CFS and fibromyalgia. Overall, I do not place much weight on her opinion and prefer the opinions of Drs Reiter and Arora as more qualified practitioners, who have a thorough understanding of the true history of Ms Lowe’s conditions.
[95]PCB 312
44As to Dr Randall,[96] she has provided one report from 2015 and Dr Cabena provided one report in 2017.[97] I consider that, as treating doctors, their opinions do not carry as much weight as relevant specialists, who were thoroughly briefed with relevant materials and provided up-to-date reports, commenting on the situation before the Court, such as Drs Reiter and Arora. So, to the extent that they diagnose a relationship between psychiatric injury and CFS and/or fibromyalgia, I do not accept those opinions. Furthermore, Dr Cabena specifically appears to implicate heavy metals, a mould susceptible genotype and adrenal exhaustion, in the causation of Ms Lowe’s CFS and fibromyalgia. This seems to suggest that the workplace bullying was not the only factor at play in the development of the CFS and fibromyalgia. No effort was made by Ms Lowe to separate out the contribution of these factors in the development of the CFS and fibromyalgia.[98] This complicates the causation picture. However, overall, it is an isolated opinion, and I put it to one side, and prefer the opinions of Drs Reiter and Arora for the reasons set out above.
[96] PCB 77
[97]PCB 238
[98]See also the report of Dr Bruce Jones, dated 4 April 2019, in which he conducts testing for heavy metals, and opines that there is evidence of heavy metals and recommends detoxification.
45Now, turning to examine the various psychologists called in aid by Ms Lowe, starting with Ms Hare. She provided only one opinion on 27 July 2016.[99] She saw Ms Lowe on only eight occasions and provided a report now some seven-and-a-half years old. To the extent she makes any comment as to causation of CFS and fibromyalgia, it is unclear if she had a correct history of Ms Lowe’s pre-existing medical state. This is important to appreciate so as to properly opine on causation. Neither did she have access to relevant medical opinion which detailed Ms Lowe’s treatment course. She did not have access to all the materials that Drs Reiter and Arora did. This means that her report was not as comprehensive as theirs on the question of causation. I therefore prefer their opinions.
[99]PCB 81
46Next, Ms Field,[100] psychologist, has treated Ms Lowe for over seven years. She has a comprehensive history of Ms Lowe’s past medical history and was given a detailed synopsis of the family financial situation prior to the events of April 2014. She opined that there was workplace bullying that:
“… caused a retriggering of [Ms Lowe’s] chronic fatigue and exacerbation of fibromyalgia according to my knowledge.”[101]
[100]PCB 85, 96, 98, 112, 259, 274-275 and 372
[101]PCB 378
47Ms Field is something of an expert in the field of workplace bullying and trauma, however that specialisation is primarily in respect of the mental impacts of such behaviours. It can be accepted that the workplace bullying had a psychiatric impact, as I have found above. However, when it comes to the physical manifestation of those psychiatric conditions, I prefer the evidence of relevant specialists in that field, being Drs Reiter and Arora, and, to a lesser extent, Professor Littlejohn and Dr Feletar.
48As for Dr Kemp, the treating doctor, his initial opinion was that Ms Lowe was suffering from a number of different infective processes causing the fatigue. I have not accepted that opinion, because none of the blood tests were positive, and, similarly, this was not accepted by Professor Littlejohn, nor Dr Feletar, as causative of her current state. His opinion does not overall support Ms Lowe’s case, and is isolated, as no other doctor accepts this proposition, so I put it aside.
49As for Dr Lydall-Smith, she saw the plaintiff only briefly and did not comment on causation.
50As for Dr Thomas, he thought she had CFS, but offered no opinion as to its cause. His opinion is also compromised by having no history of the alleged bullying. I do not accept it adds anything to the issue as to the causation of the CFS and/or aggravation of the fibromyalgia.
51As for Dr Reddel, general practitioner and epidemiologist, she diagnosed PTSD. I do not accept her opinion as to this diagnosis and therefore any opinion she offers as to causation of CFS and/or fibromyalgia cannot be accepted.
52As to Dr Soo, he similarly diagnosed a history of PTSD related to workplace bullying. I do not accept that diagnosis for the reasons set out above. In addition, he made no comment as to whether the PTSD caused or aggravated CFS or fibromyalgia. Rather, he opined that:
“… It is not possible to separate Ms Lowe’s recent depressive illness from her comorbid medical diagnoses which appear to include Chronic Fatigue Syndrome and Fibromyalgia. … .”.[102]
[102]PCB 271
53Given Ms Lowe’s accepted history of past CFS at least, this seems to confuse the issue of causation, as it is unclear if Dr Soo is commenting that her comorbid conditions pre-existed the workplace bullying. He then goes onto state that he is not an expert in CFS or fibromyalgia. Overall, I consider his opinion is unclear as to the impact of any psychiatric condition on CFS or fibromyalgia. I do not accept it.
54As to Dr Hermann, psychiatrist, he concludes that there is PTSD which has triggered the CFS and fibromyalgia. As I do not accept the diagnosis of PTSD, I do not accept his opinion.
55As to medical material from medico-legal specialists, the plaintiff, in particular, relies on Dr Blombery. In his initial report, he diagnosed an aggravation of CFS rather than fibromyalgia, though seems to defer to the opinion of Professor Littlejohn.[103] In his next report, he opined as to CFS and fibromyalgia being caused or exacerbated by bullying, but stated that that CFS:
“…may be precipitated by emotional distress but it is outside my area of expertise to be able to comment on that”.[104]
[103]PCB 427
[104]PCB 435
56Given this frank statement by an expert who has deferred to more relevant practitioners on the issue of causation, I do not consider Dr Blombery’s opinion carries the same weight as the thorough, researched and reasoned reports of Drs Reiter and Arora. I do not accept it.
57As to the psychiatrist and medico-legal practitioner, Dr Damodaran,[105] he diagnosed major depressive disorder and anxiety, which further worsened Ms Lowe’s chronic pain disorder. He is the only practitioner who opines that Ms Lowe has developed a chronic pain disorder. That opinion is isolated and I do not accept it. Similarly, aggravation of the CFS or fibromyalgia is not a matter which he opines upon. His opinion is of no assistance to Ms Lowe on this point.
[105]PCB 462
58For the reasons set out above, then, on the issue of whether the work-related psychiatric disorder has aggravated the CFS or caused the fibromyalgia, I find that it did not.
59As a result of that finding, Ms Lowe’s case must fail. This is for the following reasons. First, I have found she suffers from a mental or behavioural disturbance which can be identified as an adjustment disorder with mixed anxiety and depression. However, the consequences of that condition do not involve the aggravation of the CFS and/or causing of the fibromyalgia. These conditions, I have found, are independent conditions. In order to succeed in her case, Ms Lowe must show that the consequences of her adjustment disorder with mixed anxiety and depression are severe. Those consequences must be separate and distinct from any impairment consequences of the CFS and/ fibromyalgia.[106] The material in the case simply does not allow for this analysis to be done. As an example, the primary impairment consequence Ms Lowe relies on is her inability to work. The affidavit material deposes that this inability is caused by both her psychiatric state and also the CFS and fibromyalgia. This is insufficient to allow identification of impairment consequences which could be assessed to determine the relevant statutory test of being considered a severe long term behavioural disturbance or disorder.
[106] Peak Engineering & Anor v McKenzie [2014] VSCA 67
60For these reasons, I will find for the VWA and hear the parties as to consequential orders which can be submitted to my chambers within two days of receipt of these reasons.
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