Markovski v Woolworths Limited
[2015] VCC 1866
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05957
| IGOR MARKOVSKI | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 November 2015 (Defendant ordered to serve on those acting for the plaintiff and to file in the Court, written submissions by the close of business on 18 November 2015 and thereafter the plaintiff is to serve on the solicitors for the defendant and file in the Court, written submissions by the close of business on 27 November 2015 and thereafter those acting for the defendant have leave to file and serve any reply within three days thereafter) | |
DATE OF JUDGMENT: | 18 December 2015 | |
CASE MAY BE CITED AS: | Markovski v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1866 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left arm/neck injury – psychiatric injury – paragraphs (a) and (c) of definition of “serious injury” – seeking leave to bring common law claim for “pain and suffering damages” and “pecuniary loss” – whether there has been and/or continues to be any organic injury – the nature of any psychiatric injury – employment contribution to any psychiatric injury – capacity for employment – permanence of condition
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Sabo v George Weston Foods [2009] VSCA 242; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hunter v Transport Accident Commission [2005] VSCA 1; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Jayatilake v Toyota Motor Corp Australia Limited (2008) 20 VR 605; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Woolworths Ltd v Warfe [2013] VSCA 22; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
Judgment: The Court is satisfied that the plaintiff has suffered a “serious injury” as defined in s134AB(37)(c) of the Accident Compensation Act 1985 and grants leave to the plaintiff to bring proceedings at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering and pecuniary loss for injury arising out of or in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton QC with Ms M J Lang | Zaparas Lawyers |
| For the Defendant | Mr P A Jewell QC with Mr I D McDonald | Spark Helmore |
HIS HONOUR:
1 By way of Originating Motion filed on or about 1 December 2012, Igor Markovski (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended, (“the Act”), to bring common law proceedings for:
(a)a left arm/neck injury (“the organic injury”) said to have occurred throughout the course of his employment with Woolworths Ltd (“the defendant”), but more particularly, on 30 May 2012;
(b)psychiatric injury consequential to the organic injury and other aspects of his employment with the defendant (“the psychiatric injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Each party tendered a large number of documents.[1]
[1]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the organic injury” and/or “the psychiatric injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) and paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. Those paragraphs read:
“‘Serious injury’ means—
(a) permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder;
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left arm/neck.
7 Senior Counsel for the plaintiff informed the Court that the psychiatric injury said to be a “serious injury” has been variously described as an Adjustment Disorder with disturbance of emotion and conduct; a Somatic Symptom Disorder; a Major Depressive Disorder; an Anxiety Disorder; or an Adjustment Disorder with Anxiety and Depression and chronic pain.
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“The organic injury” and/or “the psychiatric injury” suffered by him arose out of or in the course of or due the nature of, his employment with the defendant on or after 20 October 1999;[3]
(b)“The organic injury” and the resulting impairment under paragraph (a) and/or “the psychiatric injury” under paragraph (c) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)The “consequences” to the plaintiff of the organic injury in relation to “pain and suffering” and “pecuniary loss” must be “serious” – that is, “when judged by a comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”;[5]
(d)The “consequences” to the plaintiff of any disturbance or disorder under paragraph (c) in relation to “pain and suffering” or “pecuniary loss” must be “severe” – that is, “when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be, fairly described as being more than serious to the extent of being severe”.[6]
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]See Barwon Spinners (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) of the Act
[6]See s134AB(38)(b) and (c) of the Act
9 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[7]
[7]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[8] to establish:
(a)that as at the date of hearing, he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[9]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[10]
[8]See s134AB(19)(b) and (38)(e) of the Act
[9]See s134AB(38)(e)(i) of the Act
[10]See s134AB(38)(e)(ii) of the Act
11 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of “the organic injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken or counted for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[11]
(b)Must make the assessment of a “serious injury” at the time that the application is heard;[12]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[13]
[11]See s134AB(38)(h) of the Act
[12]See s134AB(38)(i) of the Act
[13]See Hunter v Transport Accident Commission [2005] VSCA 1 at [23]–[26]
The issues
12 When queried as to what were the issues in dispute, Senior Counsel for the defendant asserted:
(a) In relation to the “organic injury”, it was submitted that on the evidence, there should be a finding that there was never such an “organic injury” or, in the alternative, if there was such an injury, the plaintiff had a “temporary ulnar neuritis of the left elbow which has resolved”;[14]
(b) In respect of any psychiatric injury, it was submitted that the finding on all of the evidence should be that any psychiatric condition suffered by the plaintiff is not work related and if indeed the plaintiff sought to rely on employment stressors prior to or subsequent to the date of the organic injury, such an “injury” is in distinction to any injury resulting from the organic injury.
[14]T22, L10 – 11
13 Furthermore, when queried by the Court as to whether the defendant accepted that the plaintiff had a psychiatric injury, Senior Counsel for the defendant responded that the defendant accepts that the plaintiff has a psychiatric diagnosis but, in any event, he is at least capable of performing a “50 per cent work situation” and that at the conclusion of litigation, any such condition will resolve completely. In particular, the following exchange occurred:
HIS HONOUR:
Q:“Going back to the psychiatric condition, the case that you will put bearing in mind I appreciate you haven’t got the onus obviously, but the onus you're going to put, does the psychiatric condition, I will use that phrase, does your evidence accept in any sense or form that’s related to anything with the employment?---
MR JEWELL:
A:It does in this sense, that the pain factor if he’s to be accepted as having pain and one doctor says it’s feign.
HIS HONOUR:
Q:From the organic injury?---
MR JEWELL:
A:Yes, is very small, that’s part of our case, it's very small at the moment and that a really dominant feature, the overwhelming dominant feature of his psychiatric state is his anger problem which is an innate personality situation.”[15]
[15]T23, L20 – T24, L3
The evidence of the Plaintiff
14 Immediately after being sworn in, the plaintiff confirmed, when queried by his Counsel, that he had walked into the witnessbox holding his left arm quite still. Following that, the following evidence was given:
Q:“Why was that?---
A:Because I’m in pain.
Q:Where?---
A:I was in pain the whole of last night, I got no sleep.”
HIS HONOUR:
Q:“I beg your pardon, I can't hear you?---
A:I was in pain the whole of last night, I got no sleep.
Q:You were in pain in your left arm all of last night, you got no sleep, yes, thank you.”
MR GORTON:
Q:“Have you taken tablets this morning?---
A:Yes, I took a whole bunch of them.”[16]
[16]T30, L29 – T31, L6
15 The plaintiff was referred to his first affidavit sworn on 30 June 2014[17] and, in particular, to the following paragraphs:
[17]See exhibit E at pages 21 – 31 PCB
(a) Paragraph 1, wherein the plaintiff deposes that he commenced employment with the defendant in June 2007. That employment was full-time employment but he had been a casual before then;
(b) Paragraph 5, where there is a reference that he obtained Endep in 2010 from the Dandenong Medical Centre and that after perusing the records, he accepted it may have been possible that the drug was Temazepam;
(c) In paragraph 7, he speaks of an electronic transporter on his return to work period and he was queried did he make a distinction between something called a transporter and something called a sidewinder, to which the plaintiff said: “Yes, I do.”
16 In particular, the following evidence was given:
Q:“What were you in fact using, the transporter or the side-winder?---
A:Side-winder.
Q:What is the difference?---
A:The electronic transporter is something that you’re stationary on and you hold both hands and you have a lever or button that you just press forward with your thumbs, a side-winder is you actually - may I stand up, Your Honour?”
HIS HONOUR:
“By all means, yes?---
A:So you’re standing like this constantly facing that way (The witness demonstrated.) With your right hand and there is only (indistinct) on the left-hand side there is a lever that goes round and round so it goes left and right and on the other side is the forward and back to go forwards and backwards.
MR GORTON:
Q:So what did the side-winder require you to do with your left hand?---
A:Constantly to go round and round in circles with my elbow and my arm and my shoulder and to be facing once - constantly like that.
Q:You were just indicating in the witness box a winding motion with your right hand but just to be clear it was your left hand that had to do the winding?---
A:Yes - I can’t remember - - -
Q:But is this right, that when you were doing the work on the side-winder you had to do the work with the left hand?---
A:Yes, I have to do it with the left hand obviously and the other one to go backwards and forwards.
Q:And how did that affect your arm and your elbow?---
A:Made it worse, yes.
Q:The return to work plans talk about you being on a transporter, what is a transporter?---
A:That is the one that you’re just stationary on and just you’re looking forward and there is a lever and you just press it with your thumb and it goes forwards and you press down the lever and it goes backwards and you have got tines at the end.
Q:How did you cope with that return to work program?---
A:Not good, I went numerous times to the person that was in charge of the return to work program to tell him it was making it worse, he saw me maybe up to ten times and then after that he either locked the door, he was - soon as I would come he would leave the office and say he was busy.
Q:After you stopped using the side-winder was there another task you did, the lanes?---
A:Yes, towards the end they - because I took days off, they took me into the office and asked me why I had taken days off, I said because my arm is in pain and the exact words from a manager was, ‘Igor, pull your finger out of your rear, be a man and do some work’, so he put me on the lanes where it’s just a rush of boxes coming down literally lanes, and all the heavy boxes come down those lanes.
Q:How did you feel doing that work?---
A:Even worse.”[18]
[18]T32, L1 – T33, L22
17 The plaintiff was referred to paragraph 17 of his first affidavit where there was a reference to medication that he had been taking. The plaintiff was queried about his experience over the years with tablets he has been taking, prescribed by a psychiatrist and other doctors for his mental condition and, in particular, how he felt about that. The plaintiff gave the following evidence:
A:“Not good at all, they didn’t really help much, they made me sick, then they take me off. When you get off the tablets you have to go down slowly which everything has to get out of your system so you hit a new level of low and then you have to take other medication. By the time that builds up you’re still at that point till they start working in a specific way and - yeah.
Q:How is your ability to concentrate these days?---
A:Not very good, I forget quite a bit.”[19]
[19]T34, L2 – L11
18 Also, in his viva voce evidence, it was suggested to the plaintiff by his Counsel that he spoke in a sort of “hesitant and sort of stumbling manner” and the plaintiff denied that he spoke like that prior to his injury. Furthermore, the plaintiff identified photographs of him taken when he was twenty-seven or twenty-eight years old. He was queried why he got upset looking at those photographs, to which he answered:
“Because I look nothing like that, I’m nothing like I was before.”[20]
Such photographs constitute exhibit “C”.
[20]T34, L24 – L25
19 The plaintiff was also referred to his second affidavit sworn on 29 October 2015[21] and, in particular to paragraph 19, wherein he makes a reference about thinking about suicide. The following evidence was given:
[21]See exhibit E at pages 32 – 36 PCB
Q:“Have you attempted suicide?---
A:Yes.
Q:What happened?---
A:I tried to hang myself and I took a whole lot of prescription medication that I had all at once.”[22]
[22]T35, L17 – L19
20 Subject to the foregoing, the plaintiff accepted that each of his affidavits was “accurate”.[23]
[23]See T35, L7 – L9 and L20 – L21
21 By way of his first affidavit, the plaintiff gave the following further pertinent evidence:
· He was born in Macedonia in November 1983 and came to Australia with his parents when aged four, and remained here for three-and-a-half years before returning to Macedonia with his family and later, returning when he was about twelve. On returning to Australia, he completed his schooling to Year 12 and then underwent an apprenticeship with DVP Engineering as a boilermaker.
· In June 2007, he commenced employment with the defendant as a picker and packer and initially worked at their distribution centre in Clayton for about a year and then at their major distribution centre in Mulgrave.
· He describes his employment duties to involve the following:
“I worked for the employer in a large warehouse about 200 metres by 200 metres in area. In the warehouse there were rows of racks with about 7 levels. Goods were usually stacked in these racks on pallets. I only picked from the lower level. Until 2011 I picked from a printout in the form of a lot of stickers to be placed on the items I had picked. I used an electric transporter which was driven stand-on with handlebars to steer and with two tynes facing to the rear which held 2 pallets. I picked boxes of items including fruit juice, cooking oils, soft drink and a variety of canned goods. About 40% cent of my lifts of boxes were about 15 kilograms or more. The racks above the lower level where I picked were about 1.3 to 1.7 metres from the floor and I had to bend in under this rack and lift the goods I needed from in front of me. In 2011 headphones were introduced and information as to what to pick was provided verbally through these headphones. The pace of work seemed to increase. The pick rate was 150 boxes an hour. To keep up with this rate it often involved lifting 2 boxes at once. When I had picked the goods onto the pallets I placed them in an assigned area.”[24]
[24]Exhibit E at page 22 PCB
· His usual hours of work were from 6.00am to 4.00pm from Monday to Thursday and he was earning approximately $1,200 gross per week.
· Before May 2012, he had had occasional back and shoulder pain during the course of his employment but nothing that required more than a day or two off work. He also had problems with sinus headaches and stress, and found working for the defendant quite stressful, as there was always pressure to keep up with the pick rate. There was a high turnover of staff and although he was never cautioned for his work performance, he did feel pressure and insecurity.
· In late 2010, he saw a doctor at the Dandenong Medical Centre who prescribed Endep (Temazepam) which he took for a month or two. He attended his usual general practitioner, Dr Chan, at St James Medical Centre, several times in the first half of 2011, and had about two weeks off work for stress, at which time he was prescribed anti-anxiety medication for a few months. The stress improved and he was able to continue working.
· He describes the onset of his organic injury in the following terms:
“On the 30th May, 2012 at about 10.00 pm I was picking boxes of cooking oil weighing about 6 to 8 kilograms. The boxes were about 8 to 10 centimetres wide and I was picking one in each hand with my palm down over the top of the box. As I picked up and lifted one box in my left hand I felt sharp pain through my left elbow down to my fingers. I dropped the box. It did not break. I put the other box on the pallet and went to try to use my left had again but this caused too much pain and I had little strength in the arm. I told the team leader Brett Williams of my injury and went to the first aid area. I was given ice and had to fill in a form. I sat around in the first aid area for about half an hour. The pains did not improve. Brett then suggested I should go to the company doctor at Valewood Clinic in Mulgrave.”[25]
[25]See exhibit E at page 23 PCB
· He attended the company doctor, Dr Stabelos, who prescribed medication and put him on light duties with no lifting over 3 kilograms. He returned to work using a side-winder.[26] When performing such work, he experienced increased left forearm and hand pain, and numbness in his fingers.
[26]See earlier description of the working of this machine
· During this time, he had to stop going to Doherty’s Gym in Dandenong where he had spent most afternoons doing a combination of weight and cardiovascular exercises. He has always been interested in fitness and had undergone a course in 2009 to be a personal trainer.
· He continues to see Dr Stabelos about once every fortnight (at the time of the first affidavit) and he has referred him for physiotherapy with Mr Gibbs, which the employer would permit him to attend six times, and such treatment did not really help.
· Because he was not getting any better, he began to feel stressed and, in October 2012, with Dr Stabelos on holidays, he consulted his general practitioner, Dr Chan, on 12 October 2012. Dr Chan arranged for an x‑ray of the neck and an ultrasound of his fourth and fifth little fingers on 19 October 2012 and a CT scan of his neck on 30 October 2012. Dr Chan prescribed Panadeine Forte.
· In November 2012, he was called to the office of the defendant and told that the defendant had no more suitable duties for him and he could not come back to work unless he had a clearance certificate. He felt very depressed about this news and he consulted Dr Chan, who prescribed him an antidepressant, Lexapro.
· On the return of Dr Stabelos, he was transferred to a further antidepressant, Avanza, and referred to a psychologist, Mr Gary Sheppard, in December 2012. He consulted with Mr Sheppard weekly for ten weeks, which was the extent of the Medicare allowance.
· The defendant had rejected his WorkCover claim and it was not accepted until 2014 “at Court”.
· Dr Stabelos referred him for an MRI scan of his whole body, including his neck, which was undertaken on 13 December 2012, and referred him to the psychiatrist, Dr Pasan Manawadu, and also to the neurologist, Dr Janaka Seneviratne (who arranged nerve conduction studies in December 2012).
· In late 2012, he was involved in an incident when he delivered a Certificate of Capacity and requested that there be a photocopy of it which was not immediately forthcoming. At that time, security was called and, ultimately, he obtained a photocopy of the Certificate.
· He commenced to consult with the psychiatrist, Dr Manawadu, on 8 February 2013 and at the time of the first affidavit, had been seeing him monthly. Dr Manawadu withdrew the Avanza because he was having bad nightmares, and put him back on Lexapro, as well as Seroquel and Valium.
· In April 2012, he attended the Monash Medical Centre for review of his elbow “injury” and where he was treated as a public patient because his WorkCover claim had not been accepted. An argument ensued between him and security personnel, causing him to be requested to leave the hospital at that time.
· He later consulted a doctor at the hospital, who suggested an operation of his left elbow, but would not “guarantee the result”. He was uncertain about undergoing such operation as he had had an operation at seven years of age involving an eye which left him with an eye squint. Notwithstanding, he put his name on the waiting list.
· In December 2013, he handed in his motor licence, with encouragement from Dr Stabelos, due to both his lack of confidence driving under medication (which made him feel groggy) and accumulation of demerit points.
· In early 2014, he began to feel more stressed and was having difficulty getting his breath, would sweat, and finding his hands and legs would shake. Such symptoms would continue with varying severity for several hours. One of his doctors prescribed him Xanax, which helped a little, and Dr Stabelos arranged for him to undergo an ECG examination in February 2014, which was normal. Dr Stabelos considered that he had suffered a “panic attack”.
· He continues to see (at the swearing of the first affidavit), Dr Stabelos at least once a month, and Dr Manawadu about once a month, both of whom prescribe medication. At that time, he was taking Oxazepam (Serepax), 15 milligrams in the morning and at night; Valium, 10 milligrams at night; Seroquel, 75 milligrams in the morning; Lexapro, 40 milligrams in the morning; Mersyndol Forte, a packet of 20 about each month (which were taken when his neck and left arm pain worsened); Nurofen Plus, two to six tablets every day, and Somac for stomach upset each night.
· He continues to have pain in the neck all the time, with tightness, and also gets a cold, stabbing pain every few days which usually lasts for a few hours. The pain in his neck spreads down his left arm to his little finger and the two fingers next to it, and the pain is a tingling cold and numbness, there most of the time. He also has a specific stabbing pain at the elbow which comes on most days and lasts for about 10 seconds. He finds if he rubs the elbow with his right hand, the sharp pain would subside, although the elbow remains uncomfortable for several hours. He is unaware of any precipitating causes for such discomfort.
· His neck pain also at times spreads to his shoulder blades at the back of his head, with tightness there. He gets headaches nearly every day, more often towards the end of the day, with such headaches situated at the back of his neck and head. He has to move cautiously with his neck, and the pain in his neck is made worse if he turns his head too quickly or too far, particularly to the right or looking up. He also finds he gets increased neck pain if he bends his head forward for too long, and finds that he wants to rest his head by lying down if he is on his feet for more than a few hours.
· He resumed driving in May 2014 to get to various appointments with doctors but can only drive for about 45 minutes before he gets increased neck pain and wishes to stop. Driving makes him anxious and since his injury, he has been less patient and easily irritated, causing him to lose control of his emotions.
· He cannot lie on his left arm, as this causes worse pain and neck pain. He wakes several times during the night because of neck and left arm discomfort, and finds it hard to get to sleep. Often his mind seems to race, he feels tense and on edge and cannot think of anything relaxing.
· He married on 13 July 2013 and relies on his wife a lot to organise his affairs. She or his father organises visits to the doctors. He has also lost nearly all his libido but does not know if this is a result of the medication or anxiety.
· He is always tired and it is an effort to get out of bed and his neck is always stiff and his left arm numb. He dresses slowly, trying to limit raising his left arm and keeping his head still. He is frequently constipated and has stomach upset, which he believes is a result of medication he takes.
· At the time of the first affidavit, he was living with his wife, mother-in-law and two of his mother-in-law’s sisters. He is unable to wash his 2004 Monaro, which he bought in 2008, and does not drive that car now.
· Prior to his injury, he used to help mow the lawn and help his father do various tasks, all of which he could not do now because of his neck and arm pain.
· He has always been interested in body building and was a member of Doherty’s Gym in Dandenong at the time of his injury and before that, other gyms. He used to go to the gym nearly every day after work and at weekends, and was hoping to enter amateur completion as a bodybuilder with IFBB at the beginning of 2013. He has not been to the gym since the injury.
· Since the injury, he has increased his weight from 90 kilograms to initially, 135 kilograms, but he is now 115 kilograms, with assistance from his wife. He used to jog for cardiovascular health – most days about 10 kilometres – but does not run now as the jarring would cause increased neck pain.
· He socialises less since his injury and has lost friends and finds it hard to be interested in other people now. Their problems irritate him.
· Ultimately, the plaintiff states:
“I believe I injured my neck and left arm and suffered psychological upset as a result of performing frequent, heavy and forceful movements and operations in the course of my employment with the employer.”[27]
[27]See exhibit E at page 31 PCB
22 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
· He continues to suffer “terribly” as a result of his neck and left arm injury.
· On 2 September 2015, he and his wife divorced after having been separated for a year. The breakdown of their marriage was “a result of my injury and its persistent effects”. On separation, his wife informed him that she simply could not put up with his injury and his “useless” state. He now lives with his parents and younger brother.
· He continues to have constant pain in his neck and describes it to be “like a sodden towel is draped over my shoulders pulling my neck forward”.[28] At its worst the pain pierces into the left side of his neck with a searing force.
[28]See exhibit E at page 33 PCB
· He continues to suffer “awful” headaches and hardly a week would go by that he would not suffer a headache of such intensity that he sees stars and is forced to lie down.
· He continues to suffer “excruciating pulsing pain that runs down [his] left arm and into his elbow” which are “always present, day and night”.[29]
[29]See exhibit E at page 33 PCB
· He continues to experience “a strange numbness across my forearm and into my left hand, particularly my three middle fingers”.[30]
[30]See Exhibit E at page 33 PCB
· His pain and discomfort flares up with activity and if he reaches above shoulder height or tries to lift anything more than a few kilograms, his pain escalates and it also seems particularly bad in cold weather.
· He continues to take Mersyndol Forte and Lyrica every day and has recently started taking Palexia twice daily.
· He sleeps poorly because of injury and just rolling onto his left side can cause enough pain to wake him up.
· His neck and arm injury continue to prevent him from working because of the intensity of the neck pain, and the severity of headaches “alone” would prevent him from undertaking any type of work whatsoever. Furthermore, his arm pain and dysfunction would not permit him to undertake any form of manual work.
· His neck and arm injury prevent him from carrying out any bodybuilding works. He notes in his late teens, he was a district cricketer and also played soccer and was proud of the way he looked and that his fitness regime had him “feeling healthy and confident”. These days, he is “appalled by the state of [his] body and feels sluggish and unhealthy”.[31]
[31]See exhibit E at page 34 PCB
· His neck and arm injuries continue to have a dramatic effect on his emotional wellbeing as he continues to obsess about such injuries and endlessly worries why he is not getting better.
· He also continues to take one Valium and one Serepax twice a day and two tablets of Valprease, which is a very strong mediation that causes him to feel dull, drowsy and disaffected. He would not be able to hold down any sort of job with his mind in a blur that it is now.
· Although he tries to keep his emotions in check, every couple of months his frustration, sadness and anger get the better of him, manifesting in outbursts, including “punching walls, throwing chairs and abusing my doctors, including my psychiatrist, Dr Pasan Manawadu”.[32] When he calms down, he feels appalled as to what he has done.
[32]See exhibit E at page 35 PCB
· Following such outbursts, he typically has horrible night terrors and he has been admitted to Dandenong Hospital for his own protection.
· Because of his state, he has made some “harmful choices” including that in November 2014, he had a fight with a man on the street which caused the plaintiff to be stabbed in the stomach, requiring surgery, and furthermore, after asking a female friend for a lift to a specialist, he was beaten up by her ex-boyfriend.
· He has withdrawn into himself and further away from his family, as he does not want to be a burden in his “pitiful state”. He notes that his father has been diagnosed with cancer and had recently undergone a bone marrow transplant, causing his mother to have a lot “on her plate caring for him”. In particular, he states:
“There have been many times particularly this year that I have thought about suicide, but I just can’t do it to my family.”[33]
· He continues to receive treatment from his general practitioner, Dr Anthony Chan, who prescribes medication, and the psychologist, Ms Amanda Wallis.
[33]See exhibit E at pages 35 – 36 PCB
The cross-examination of the Plaintiff
23 Under cross-examination, it was initially suggested to the plaintiff that he had no trouble turning his neck right around to the left when addressing the Court, to which the following evidence was given:
A: “I do have trouble I do have trouble turning my neck.
Q: Is that all of the time or only some of the time?---
A: Most of the time.
Q:Did you have trouble this morning when you were doing that, just a moment ago?---
A:I turned my neck, yes, I did.
Q:You had trouble, did you?---
A:Yes, I did have.
Q:What was the problem?---
A:It hurts.
Q:And where does it hurt?---
A:My neck.”[34]
[34]T36, L6 – 14
24 The plaintiff asserted that since the swearing of his first affidavit, the pain in his neck and left arm has worsened. The plaintiff confirmed that during the time he had been sitting in the witnessbox, his left arm had been supported on his leg. In particular, the following evidence was given:
Q:“Are you able to move the left arm at all now?---
A:I can move it, there is range of motion there, yes.
Q:And what happens if you move it?---
A:It depends how I move it.
Q:Do you have pain in the arm now?---
A:Yes, I do.
Q:Is it excruciating?---
A:It hurts quite a bit, yes.
Q:Is it less than excruciating?---
A:It hurts a lot.
Q:Do you still say it hurts a lot day and night or does it change?---
A:It hurts day and night.
Q:Does the hurting a lot change, the level of pain, or not?---
A:Yes, it does.
Q:What does it go to?---
A:From - from a hard pain, excruciating pain to a bad stabbing pain so a stabbing pain means that I have to hold my hand and cry.”[35]
[35]T38, L3 – 15
25 When queried about whether the stabbing pain is worse than the excruciating pain, or vica versa, the following evidence was given:
A:“Well, the stabbing pain comes all at once, so if you’re (indistinct) and I hit you over the other hand with a hammer, you’re going to feel the pain in your other hand, so yes.
Q:I take it the pain was not quite like this when you were working?---
A:No, it got worse as the duties they were giving me.
Q:When you stopped work altogether?---
A:Yes.
Q:Was the pain as bad as it is now or not as bad?---
A:It got worse and worse.”
HIS HONOUR:
Q:“Sorry, it got worse and worse after you stopped work or - - -?---
A:Yes.
Q:I know you have told us you’re suffering pain at work and the type of work they gave you made the pain worse, I just want to be clear when you stopped work for the final time has the pain got worse and worse since then?---
A:Yes, sir, because I stopped using my arm all together, just not to aggravate it anymore, I have no money for treatment to do anything.
Q:I see.”
MR JEWELL:
Q:“So I just want to understand this situation, are you saying since you stopped work just gradually it's just got worse and worse and worse?---
A:Yes.
Q:And even though you’re not using the arm you have tried to protect it, it's still got worse and worse and worse and worse?---
A:Yes, I just lay in bed and that’s about it.”[36]
[36]T38, L22 – T39, L17
26 The plaintiff confirmed that he had been on a waiting list to have a procedure done on the left arm and he informed the Court that such procedure was classified as a level 2 at the Monash Medical Centre. He also confirmed that when he was called to go in and have the procedure, he declined such procedure because he was told the surgery only gave a guarantee of 70 per cent, which he found “not good enough”. The plaintiff referred to eye surgery when he was a child which made him “cross eyed” which ultimately required further surgery.
27 The plaintiff also confirmed that after he rejected the chance of surgery, he remained on the list to be called up for a second time. When queried why he stayed on the list, the following evidence was given:
A:“… In case I changed my mind.
Q:And all this time you’re getting worse?---
A:Yes.
Q:How long after the first time you were notified was it before you got the second notification?---
A:I’m not sure.
… .”[37]
[37]T42, L16 – 19
28 When queried whether he has to support the arm all the time, the plaintiff replied “No, not all the time” and later, “Some of the time but I’m usually in bed so it supports itself”.[38]
[38]T43, L4 – 6
29 The plaintiff described his pain in the left arm to be “from my neck down behind my shoulder, behind my elbow into the forearm, into the fingers, the three fingers” – those fingers being the little finger, the ring finger and the middle finger.[39]
[39]See generally T43 – 44
30 The plaintiff confirmed that he had tattoos placed on his left arm “a couple of years ago” but after ceasing work. The following evidence ensued about such tattooing:
Q:And how long did it take to have the tattooing done?---
A:Took a while, I used numbing cream, special numbing cream that my former best friend used to put on me, so it numbs the whole arm.
Q:But the question was how long - - -?---
A:I just answered it.
Q:How long did the procedure take to have the - - -?---
A:Took a long time, I’m not sure, I didn't sit there counting the hours.
Q:Was it all done in one go or did you have to come back?---
A:I had to come back.
Q:How many times?---
A:A few times.
Q:And is the tattooing only on the outside of the arm or the back or whereabouts is it?---
A:I said the whole arm.
Q:That would have been painful to have done, would it not?---
A:Not with numbing cream.
Q:Have you used numbing cream in the last week?---
A:No.
Q:Why not?---
A:Because I can't afford numbing cream, it’s like $80 for one go.”[40]
[40]T45, L1 – 18
31 Under cross-examination, the plaintiff agreed that the numbing cream relieved “most of” his pain to have the tattooing done. When queried about the numbing cream, the plaintiff said it was his “best mate at the time” who supplied the numbing cream, he did not ask him what the name of it was, he was not told where to get it and never spoke to his doctor about this cream. The plaintiff asserted he did not need a short-term cream, he needed something to relieve the pain “long term”.
32 After accepting that he has constant, excruciating pain in his neck and left arm, he was queried about the medications that he does take. The following evidence was given:
Q:“Okay. Doesn’t it follow that the medications you are having do not help?---
A:Obviously.
Q:Why are you taking them then?---
A:They help to a certain degree, they don’t relieve the whole pain.
Q:But you say the numbing cream was terrific, reduced the pain?---
A:Yes, reduced the pain, yes, I can’t use numbing cream all the time.”[41]
[41]T48, L9 – 15
33 The plaintiff stated that most of the time he is at home and in bed in his room with the roller shutters down in a black room. The plaintiff also accepted that he told a particular psychiatrist that he might sleep for two days at a time. He denied informing the neurosurgeon, Mr Brazenor (who examined him on behalf of the defendant), that he said that the people at the defendant were “arseholes” but he does consider that to be the case, as they had “treated me bad”, he lost his marriage and didn’t put him on light duties when the certificate said they should and did not even call on him after he ceased work in November 2012.
34 The plaintiff was cross-examined about various “incidents” since ceasing work:
(a) On 29 November 2012, the plaintiff delivered a “form” in relation to WorkCover and wished such form to be signed by a male receptionist who was apparently blind. When it was put to the plaintiff that he had a “confrontation” with the receptionist, the plaintiff replied that the receptionist “had a confrontation with me”. Part of the evidence included:
Q: “And I suggest you were yelling at this person and using indecent language?---
A: I suggest to you he was doing it.
Q: No, I’m suggesting you were doing it, you say you didn’t do it?---
A: Are you asking me or telling me?
Q: I’m telling you irrespective of what he might have done, I’m suggesting you used indecent language, that’s all?---
A: Are you asking me or telling me, I don’t understand.
Q: Okay, I’m asking you?---
A: No.
Q: And you had the certificate, a piece of paper, and you were shaking it at this person whom you knew was blind?---
A: No, because that makes no sense to do that.
Q: Well, you were yelling at him and you were angry, were you angry?---
A: I was frustrated.
Q: Were you angry?---
A: I was frustrated.
Q: Does that mean you were not angry?---
A: It means I was frustrated.”
HIS HONOUR:
Q: “Answer the question, the question is were you angry, you either were angry or you weren’t angry?---
A: I suppose so, yes, frustrated, angry.”
MR JEWELL:
Q: “Was there a reason why you didn’t answer that way before His Honour asked you the question?---
A: I don’t know, I distinguish two of them differently.
Q: Look, I apologise to the court for using this, but what I suggest you said to him by way of language, you said words to the effect that you wanted the receptionist to, ‘Fucking sign the document’?---
A: No, I asked the receptionist to call somebody so they can sign and photocopy so I may have a copy for my own personal use so then Woolworths cannot turn around and say I didn’t hand it in like they have done much more time and he’s in turn replied, ‘That’s not how we do it, this is my fucking office, get the fuck out of my office’, sorry about that.”[42]
[42]T52, L22 – T53, L24
(b) On being questioned about an incident at the Monash Medical Centre on 24 April 2013, it was put to him that he had had an argument with the receptionist at the Monash Medical Centre, to which he replied “No”. The following evidence a given:
Q: “On that occasion you were involved with security staff?---
A: The security staff came up to my dad, grabbed him, when somebody else was making a ruckus, the receptionist pointed out my dad wrongly so the security guard came and grabbed him, physically with his hands and I told the security guard to put his hands off my dad and then he replied to me, ‘Get outside, I’ll show you what’s going to happen to you’.
Q: The fact is it took five security guards to deal with that night, didn't it?---
A: Five security guards came out, yes.
Q: And they escorted you and your father away from hospital?---
A: No, they let us back in, we didn’t get escorted out because the other people came from inside and said what the security guards did was wrong and the security guard actually apologised to me and so did the head of security and the lady at the reception.”[43]
[43]T54, L30 – T55, L18
(c) The plaintiff was cross-examined about various episodes when he was punching doors and walls at his home. In particular, the following evidence was given:
Q: “I suggest that on 23 May 2013 you went to see your doctor who was Dr Stabelos, the work doctor?---
A: Yes.
Q: And this is at 546, and I suggest you said you felt on 23 May aggressive concerning the managers at Woolworths?---
A: Yes, I didn’t like them.
Q: No, and what you were doing I suggest, and what you told the doctor is you were punching doors and walls at home?---
A: Yes, I was.
Q: And I assume you were doing it with both your hands and arms?---
A: No, you assume wrong.
Q: Just your - - -?---
A: You assume wrong.
Q: So you’re just punching with your right hand, are you?---
A: Obviously mate.
Q: Why are you saying obviously?---
A: Because I don't use my left arm, I wouldn't have got beaten up in the middle of this year waiting to go to an appointment for a specialist by somebody and go to the emergency room if I could fight back.
Q: I suggest to you though nonetheless you were that angry that you were punching doors and walls at home?---
A: I punched doors and walls, yes, I kicked, yes.
Q: And kicked?---
A: Yes.
Q: And this went on for a period of time?---
A: Yes.”[44]
[44]T56, L30 – T57, L21
(d) The plaintiff also confirmed that he was involved in a dispute with a neighbour on 7 October 2013, which resulted in him kicking items of furniture and he might have picked up a couple of chairs and flung them – albeit with one arm. The plaintiff asserted that his neighbour was having a garage sale ongoing for three months and sometimes having it at 2, 3 or 4 o’clock in the morning. He accepted that such activity made him angry, and according to the plaintiff, the neighbour attacked him with a chisel;
(e) The plaintiff accepted that on 25 November 2014, he was stabbed when in Springvale, causing him to be admitted to the Dandenong Hospital that day. In particular, the following evidence was given:
Q: “Did you have a stab wound?---
A: Yes.
Q: In the streets of Springvale?---
A: Yes.
Q: And how do you say that happened?---
A: We went to have lunch.
Q: Who is we?---
A: Me and my friend.
Q: Who is?---
A: Ton, I met him a few times.
Q: Sorry?---
A: Ton, who I don't speak to anymore.
Q: Sorry, what was his name?---
A: Ton.
Q: Ton.”
HIS HONOUR:
Q: “Todd or Ton?---
A: Ton, that is what I know him as, I have met him a few times.”
MR JEWELL:
Q: “Do you know is that his Christian name or surname, do you know?---
A: That's what I - as I said I have known him - like a short while and I met him through a friend and he was a youth worker, used to call me a few times and he’s like you shouldn’t sit at home, whatever, come out, come out. So I went out that day which I regret going out and grabbed something to eat, he had - he sort of Asian ethnicity, some other Asian guy came along, they started saying something to each other, I don’t know what they were saying because I couldn’t understand. I was saying to them to stop because I don’t like yelling and I don’t like that because I can react in any way, and as they were doing so the guy pulled a knife, I pushed my friend at the time out of the way and I got stabbed. The guy ran, my supposedly friend ran, I never heard from him again. I drove myself to the hospital bleeding.
Q: So does that mean you drove yourself down to Springvale?---
A: Dandenong Hospital.
Q: No, before you had the stabbing episode?---
A: Yes.
Q: You drove your car down to Springvale?---
A: Yes.
Q: And I assume you met Ton there?---
A: Yes.”[45]
[45]T61, L14 – T62, L14
It was suggested to the plaintiff that he told the hospital, amongst other things, that he was going down the street to meet “lady friends”, to which the plaintiff replied that he was told by Ton that they were going to meet up with some girls maybe after the meal;
(f) When it was initially put to the plaintiff that he had another episode of an altercation with another person on 27 May 2015, he replied that he had “no idea”.
On reflexion, the plaintiff accepted that he was at the house of a friend, Nicole Roberts, when her ex-boyfriend came in, kicked down the door and started hitting her. In particular, the following evidence was given:
Q: “The point though is this - - -?---
A: The point is I got bashed for stepping in so I can protect her.
Q: But the point is on 27 May you agree that was the date you got bashed?---
A: Yes.
Q: And what I suggest to you is that the night before you had stayed at Nicole Roberts’ place?---
A: No, I went home and come (sic) back.
Q: Do you want to re-think that answer?---
A: I went home and came back.
Q: So are you saying you didn’t stay the night at Nicole’s?---
A: I stayed but I left and came back, so what do you mean by stay the night?
Q: You slept at Nicole Roberts’ house.”
HIS HONOUR:
Q: “What time did you get there?---
A: The morning or the night?
Q: You tell me, you - - -?---
A: I went at night-time, because I hadn’t seen my friend in years, I just –
Q: This is Nicole?---
A: Yes, that’s Nicole.
Q: So you went to Nicole’s place at what time?---
A: Probably around 7, 8 at night.
Q: Okay, what time did you leave?---
A: Probably left around - between 8 to 10.
Q: P.m.?---
A: No, a.m.
Q: So you stayed the night? Is that right or wrong?---
A: Sorry, yes.”
MR JEWELL:
Q: “And you knew you had when you were first asked that question, didn’t you?---
A: Sorry?
Q: You knew you had stayed the night when I asked that question?---
A: Well, when you say stayed the night I thought you meant as in something else, I misinterpreted what you meant because me and her are just friends, well, we were just friends.”[46]
The plaintiff accepted that during the altercation, his assailant placed him in a headlock with a particular chokehold around the neck, was pulling his hair and punched him about fifteen times in the back of the head, the side of the head and everywhere else. Furthermore, he accepted that his assailant had his knee in the plaintiff’s back with full pressure and he still had his arm around the plaintiff’s neck at that point, with scratches around his neck ultimately causing his head to be “extremely painful”.
[46]T64, L22 – T65, L18
35 The plaintiff was referred to his second affidavit, wherein he deposed that he had thought about suicide but just “can’t do it to my family” and then to his viva voce evidence that he had actually tried suicide. The following evidence was given:
Q:“And you said this morning that you have actually tried suicide?---
A:Yes, I have.
Q:Why did you put that in your affidavit?---
A:I did mention it to my lawyers.
Q:Well, you say you suggest something - - -?---
A:And I mentioned it to my doctors.
Q:I suggest the only doctor you have mentioned it to is Dr Jager who is a Woolworths doctor?---
A:No, I have mentioned it to Dr Stabelos.
Q:But I suggest to you in that affidavit, page 36, you’re saying you can't do it?---I thought I couldn’t but - - -
Q:This affidavit - - -?---
A:I’m telling you, I have told doctors so - - -
Q:Just a minute, go to page 36?---
A:Yes.
Q:And you say it is true and correct?---
A:Yes.
Q:Apart from what you said this morning?---
A:Yes.
Q:And you said there that you thought about suicide, ‘But I just can’t do it to my family’?---
A:Yes, that was before.
Q:And this is on 29 October 2015?---
A:Yes.
Q:That is not quite right then, is that right?---
A:No, it’s not then.
Q:You’re saying you have had two attempts?---
A:Yes, I have.
Q:When was the first?---
A:Middle of my marriage and then towards the end of my marriage.”[47]
[47]T68, L14 – T69, L7
36 The plaintiff described that the first episode involved him trying to hang himself in his garage. The plaintiff asserted under cross-examination that he spoke to his psychologist, Ms Amanda Wallis, about that episode but was not sure whether he told his psychiatrist, Dr Manawadu. When queried as to why he did not tell Dr Manawadu about this particular episode, the plaintiff replied “Just didn’t tell him”.[48]
[48]T71, L20
37 The second attempt at suicide was by taking excessive medications, including Seroquel and Valium. After taking such medication, the plaintiff described becoming “very ill” and he went to the toilet and just vomited it all out.
38 The plaintiff accepted that he commenced seeing the psychiatrist, Dr Manawadu, on 8 February 2011 and over the next eighteen months approximately, to July 2014, he saw him regularly. He also confirmed that in May 2015, he just stopped going and was attending his general practitioner, Dr Chan, who was prescribing the same medication. The plaintiff accepted that he did not tell Dr Manawadu that he was going to cease attending on him. He denied the reason he stopped going to Dr Manawadu was that in April 2014, he had a settlement of the Magistrates’ Court hearing. It was put to the plaintiff that he attended his general practitioner on 2 April 2014 when he told that doctor that he was feeling somewhat more settled now the court case was over. The plaintiff denied such a situation, and the following evidence was given:
Q:“And if the doctor has recorded that is how it was, would he 16 be wrong?---
A:No, no, no, I would have said that is one aspect that’s dragged on for longer than it should have because that case got postponed three times.
Q:Yes, and - - -?---
A:So somebody’s interpretation of what I say to them is their interpretation.
Q:So I just want to understand what the situation is, are you saying the finalisation of that court case made no difference to you at all, is that what you’re saying?---
A:Yes.”[49]
[49]T78, L9 – 24
39 The plaintiff accepted that after the court case was settled, he started looking for work actively, although he asserted that he had looked before then for work also.
40 The plaintiff gave evidence that he applied for jobs on various computer sites and applied for “anything and everything” which he later described as being “from a toilet scrubber to an engineer”. In particular, the following evidence was given:
Q:“Okay. The fact is these jobs you applied for involved manual work?---
A:I applied for ones without manual work but the thing is I have no other qualifications.
Q:Which were the ones without manual work that you applied for?---
A:Sales, clerk, anything, anything.
Q:And you obviously applied for manual jobs, you said from toilet scrubbing up to engineer?---
A:Yes.
Q:So toilet scrubbing is manual work?---
A:It’s manual work.
Q:And there are other manual work jobs you applied for?---
A:Yes.
Q:And you knew when you were making the application you would have to use your left arm?---
A:Yes.
Q:And your neck?---
A:Yes.
Q:And I suggest to you that you were not having a worsening pain and numbness situation every day since you stopped work?---
A:I suggest that I was doing that so I could show my wife that nobody was going to employ me with a crook arm and crook back and being on every single type of medication that I was on, mentally.
Q:So that was the reason you did it, is that all?---
A:Yes, that was all, that is not all, that’s my lot, that was my wife.
Q:What would you have done if somebody had said yes, come in and have a go?---
Q:I would have went in and would have lasted five, ten minutes and that would have been it.”[50]
[50]T80, L7 – 31
41 The plaintiff did give evidence that he did attempt to apply for a security licence at a police station in the City. The plaintiff had some altercation with a policeman when filling out the form, which caused him to become frustrated and he got up and left the police station.
42 The plaintiff accepted that he had some type of altercation with Dr George Mendelson, the psychiatrist, although he denied that he swore at Dr Mendelson or was aggressive towards him. The plaintiff also described the relationship with Dr Manawadu broke down, not because he was angry with him but because he was frustrated with him, in part because of the constant change of medication. The plaintiff accepted that he did receive a letter from Dr Manawadu that he (Dr Manawadu) felt threatened by the plaintiff.
43 The plaintiff confirmed that his treating general practitioner, Dr Chan, referred him to the psychologist, Ms Amanda Wallis, who commenced treatment on 21 August 2015. The plaintiff also accepted that it is good that there is someone he can speak to and she has been successful on some issues but not successful on others.
44 The plaintiff also accepted that the subject court case had been of some concern to him and caused “anxiety” – so much so that he applied to have the matter brought forward. The plaintiff indicated that at the Magistrates’ Court hearing in 2014, he felt that the defendant –
“… could give me suitable duties because Woolworths is a large enterprise, they own Big W, they own Dick Smith, they own IT places, they could have accommodated for any injury of mine but they did not wish to do that … .”[51]
[51]T100, L12 – 17
45 The plaintiff commented that he was working twice as hard as anyone else and he got a full-time job but when he got injured, “I got the kick in the bum”.
46 The plaintiff accepted that he was also working full hours right up to his cessation of employment with the defendant and that when he wanted to get back to work, he was seeking “full hours”. The plaintiff said he would have accepted it if he had been offered an office job with the defendant, and the plaintiff noted that he can use a computer, although he would have to be trained up in how to use it for programs at work.
47 The plaintiff also indicated that if he had been offered work as a despatch clerk, a receiving clerk or light hand-packing work, he would have accepted such work and, if necessary, would work with one arm.[52]
[52]See generally T103
48 The plaintiff confirmed that he separated from his wife on 14 July 2014 and the divorce was made final in 2015. He asserted that he had no contact whatsoever with his wife after the separation in July 2014. He also confirmed that from July 2014 (and before), he has been looking for jobs, up until a couple of months before the trial, as “it’s kind of disheartening when you don’t get no replies back”.[53]
[53]T108, L13 – 14
49 The plaintiff stated that since he has been looking for work, since July 2014, the object has been to look for work to do.
50 The plaintiff confirmed that he has a Facebook page and considered that he may have had that for seven or eight months, prior to which it had been disconnected (at the time of his marriage separation). The plaintiff was shown a bundle of photographs which he identified to be of him taken off his Facebook page.[54] The first photograph and the third photograph show the plaintiff posing clearly with tattoos down his left and right arm, which he said was taken about two years prior to the hearing. The middle photograph is a photograph of the plaintiff holding his nephew in his right arm, with this left arm flexed, just holding onto the leg of his nephew. When queried about why he had posted Photographs 1 and 3, the plaintiff stated that so he could “feel better about myself”.[55] When it was suggested to him that such photograph showed a well-muscled individual consistent with using his arms for exercise, the plaintiff stated:
“I have been training for 13 years, when you have been training for 13 years you don't just lose something just like that plus I have been playing sport since I was 12 years old.”[56]
[54]See exhibit 1
[55]T112, L28
[56]T112, L31 – T113, L3
51 When queried by the Court as to whether the plaintiff picked up his nephew himself to pose for the second photograph, the plaintiff responded:
“No, I got him placed in my hands.”[57]
[57]T114, L18 - 19
52 It was also suggested to the plaintiff that he had exercised or gone to a gym to maintain the physique depicted in the photographs, to which the following evidence ensued:
A:“… No, because I don’t have a membership, I don’t go to the gym, I don’t do nothing.
Q:But you could exercise at home?---
A:I don’t.”
HISHONOUR:
Q:“Do you have gym equipment at your parents’?---
A:Yes, there is some ratty old equipment.
Q:When you say old equipment, what does that mean, dumb bells or machines or?---
A:There is like a bench press and stuff, that’s about it. My brother uses that, I’ve got a younger brother.”[58]
[58]T114, L23 – T115, L1
53 The plaintiff was cross-examined about his earliest treatment for “stress” when he attended the Dandenong Medical Centre and Dr Chan. The plaintiff did accept that he had had headaches for many years and such headaches were of a migraine-type and he was prescribed Mersyndol Forte. The plaintiff described these attendances brought about problems with the managers and being requested to do more work and, in particular, the plaintiff made reference to being told:
“… look at you, you’re a big girl, you should be doing twice as much as anybody else, what are you, a pretty boy? You’re not here to look nice.”[59]
[59]T115, L21 – 24
54 The plaintiff, although reluctant to discuss any of his father’s problems, indicated that his father has suffered with Depression, which he believed was “work related”. The plaintiff also confirmed that his father is presently suffering cancer and that “obviously” is a “source of worry and concern” for him.
The re-examination of the Plaintiff
55 Under re-examination, the plaintiff gave the following evidence:
(a) That prior to his “injury”, he had never been unemployed;
(b) The squabble with the blind receptionist came about because he wanted to have the certificate signed and a copy made. The plaintiff explained that prior to that, if he handed something in it seemed to be misplaced or disappeared;
(c) When queried about being treated “badly” by the defendant prior to him hurting his arm, the plaintiff gave the following evidence:
A: “They were constantly pushing me - other people were left to do nothing like they would be standing around talking, the manager would be hiding behind pallets, jump out at me, come on, hurry up, you should be doing more, this, that, all sorts of things like that.”
HIS HONOUR:
Q: “Can you say why he may have been doing that, because the way you have described it to me, you being a very good worker, working long hours and a strong man who could move more perhaps than others could?---
A: Yes.
Q: Can you give me any explanation why that would have occurred?---
A: Because other people weren’t pulling their weight.”[60]
[60]T124, L19 - 31
(d) Before he had suffered the “injury” with the defendant, the plaintiff described having no problems whatsoever with his “patience”, he was happy all the time and if anyone ever said anything to him he would brush it off and walked away. In particular, the following evidence was given:
Q:“Why do you say that’s changed now where you have this anger?---
A:Well, when you get spat on the whole time and people try to deny doing something to you, it makes you feel very - makes you frustrated and angry and, you know, makes you feel awful, basically calling you a liar about something – you’re making up something.”[61]
[61]T125, L18 – 23
(e) He spends a large part of his time at home in his room, because given his history of events occurring when he does go out, he does not know how he will react to any particular situation;
(f) He has gone to the emergency department of a hospital when he has felt suicidal;
(g) The numbing cream that was used when he had tattoos placed on his left arm was dealing with the pain of the needle going into his skin and not dealing with the pain of his workplace injury;
(h) He has problems concentrating and did not believe he would be able to do a Level 7 job at the Clayton warehouse. Furthermore, he does not like going on public transport as he becomes “anxious and twitchy when there are people, you know too much people around”;[62]
[62]T129, L1 – 2
(i) He does not think his memory would serve him well, nor does he believe he would cope with interacting with co-workers and bosses and people below him. If something happened, he would “snap” – he would not cope at all;[63]
[63]L129, L22- 23
(j) The plaintiff confirmed that he became a permanent employee in June 2007 after working as a casual. He noted that a couple of years after commencing in any role with the defendant, he moved to Mulgrave, where he was up to a Level 7, having commenced as a Level 2 at Mulgrave;
(k) Since his relationship with Dr Manawadu has ceased, he has been referred to an organisation called “Pine Lodge” and it is his intention to obtain treatment from there;
(l) He continues to attend Amanda Wallis, who is being paid through Medicare.
The treatment received by the Plaintiff
56 Before referring to any treatment, I do set out details of the radiological examinations undertaken by the plaintiff:
(a) An ultrasound of the left fourth and fifth fingers undertaken on 19 October 2012.[64] The sonographer reports that:
[64]See exhibit P at page 82 PCB
“No tendinous abnormality, tenosynovitis, or ganglion is identified.”
(b) A plain x-ray of the cervical spine undertaken also on 19 October 2012.[65] The radiologist reports:
[65]See exhibit P at page 82 PCB
“There is lack of cervical lordosis is seen on the lateral view. It is most likely due to muscle spasm.
The vertebral bodies, disc spaces, facet joints, and intervertebral foramina are all intact.
No evidence of focal bony abnormality, spondylosis, foraminal stenosis, or cervical rib is detected.”
(c) A CT scan of the cervical spine undertaken on 30 October 2012.[66] The radiologist concluded:
[66]See exhibit P at page 83 PCB
“Possibility of left C4-5 disc herniation. Clinical review would be important. If there is any doubt, MRI should be considered.”
(d) An MRI scan of the cervical spine undertaken on 13 December 2012.[67] The radiologist concluded:
“Mild multilevel cervical spondylosis without spinal canal or neural compromise. Mild left neural foraminal narrowing at C4-5 and C5‑6.”
[67]See exhibit P at page 84 PCB
Dandenong Medical Centre notes
57 I refer to exhibit D, which contains various clinical notes and, in particular, to the clinical notes from the Dandenong Medical Centre. Such notes run from 19 May 2008 to 2 October 2012 and record the various attendances of the plaintiff at that clinic when seen by a variety of doctors. In particular, I refer to the following:
(a) On 13 October 2010, he attended a Dr J D complaining of “stress” and giving a history that he had been working at the defendant’s warehouse for three years and has been stressed recently with “problem with managers”. The plaintiff stated that there were “disagreements” and that he felt they were “stressing him”, causing him unable to sleep and unable to go to work. The doctor advised conciliation, noting that he had no problems at home or drug use and prescribed Temaze tablets;
(b) On 29 December 2010, he attended and consulted with Dr J D complaining of “stress” and, in particular, complained of work stress and stress at work with fellow workers, causing him not to be able to sleep and to become anxious. The plaintiff also complained of “harassment” and was prescribed Diazepam;
(c) On 4 January 2011, he attended and consulted with Dr J D complaining of being stressed and anxious, causing poor sleep;
(d) On 5 January 2011, he again attended and saw Dr J D complaining of “still feeling tired, fatigued ?stress” and could not work. He was advised to try and get back to work;
(e) On 27 January 2011, he again attended Dr J D complaining of being “still stressed at work” and consideration was given to seeing a psychologist. At that time, he was prescribed Mersyndol Forte tablets and Diazepam.
Evidence of Dr Stabelos
58 The plaintiff also relies on the evidence of one of his treating general practitioners, Dr George Stabelos, and, in particular, the clinical notes from Dr Stabelos[68] and a variety of reports dated 20 November 2012, 10 January 2013, 16 December 2013, 9 May 2014,17 April 2015 and 8 July 2015.[69]
[68]See exhibit D
[69]See exhibit F at pages 38 – 53 PCB
59 Dr Stabelos was referred to on occasion as “the company doctor” and carried on practice at the Valewood Medical Clinic in Mulgrave. Prior to any complaints by the plaintiff of a left arm/neck injury on or about 30 May 2012, the plaintiff had attended such clinic on 25 November 2008, when he consulted Dr F Wilk complaining of a strained left shoulder as a result of moving a pallet table, and on 3 January 2012, when he consulted Dr A Herath complaining of left leg pain and hip difficulty as a result of taking an awkward step, twisting and losing his balance that morning at work. Both of these incidents were short-lived and seemingly the plaintiff recovered quickly.
60 Dr Stabelos first consulted with the plaintiff on 30 May 2012 when the plaintiff complained that some three days earlier, he had sustained “left hand, wrist and forearm pain following the grabbing and lifting of items at work with the palm facing down, that is as a result of claw grip”. On that occasion, the plaintiff noted that he had no prior history of this type of condition involving the left arm, however had had a similar condition involving the right hand and arm related to work previously which had self resolved.
61 The plaintiff complained of pins and needles in the left hand. Nothing abnormal was detected on examination of the neck or neurological testing of the left upper limb. Furthermore, there was normal range of movement in the wrist, elbow and shoulder.
62 Dr Stabelos diagnosed lateral humeral epicondylitis (“tennis elbow”) and prescribed the anti-inflammatory tablet, Brufen. At the time of that examination, Dr Stabelos issued a Certificate of Capacity certifying the diagnosis to be:
“Soft tissue injury – tendinosis – lateral epicondylitis.”
Furthermore, he certified the plaintiff fit for modified duties for one week, in that he was to “avoid all claw grip duties, no lifting > 3 kilograms with left arm”.
Dr Stabelos also certified that the plaintiff needed physiotherapy as soon as possible.
63 Dr Stabelos subsequently consulted with the plaintiff on the following occasions:
(a) On 15 June 2012, when the plaintiff complained of ongoing left hand pain when lifting boxes and experiencing pain shooting up to the wrist and forearms. At that stage, he was going to physiotherapy and wearing a brace, and claimed to be “20% better”. Again, he was diagnosed to be suffering tennis elbow or left tennis elbow and a further Certificate was issued by Dr Stabelos placing the same restrictions on his employment duties. Dr Stabelos also noted in the Certificate that the plaintiff needs physiotherapy as soon as possible and may need a cortisone injection;
(b) On 29 June 2012, the plaintiff attended mainly complaining of sinusitis but stated that he was “60% better all up” in relation to his left hand pain, although there were some pains on lifting and especially when pulling. Dr Stabelos issued a further Certificate for modified duties in similar terms to the earlier Certificates;
(c) On 27 July 2012, the plaintiff complained of left hand pain over the last month, although “60% better all up”. The plaintiff did note that there were a “few pains on lifting especially when pulling, doing transporting work and has lateral and posterior elbow pain”.
Examination revealed the lateral elbow to have some tenderness. Again, a Certificate was issued for modified duties in the same terms as the earlier Certificates. Furthermore, Dr Stabelos certified that again, the plaintiff needs physiotherapy as soon as possible and may need a cortisone injection. He implored the employer to “organise physio”;
(d) On 10 August 2012, the plaintiff again complained of experiencing a few pains on lifting, especially when pulling and doing transporting work and had lateral and posterior elbow pain. Examination revealed tenderness around the lateral left elbow. Dr Stabelos again issued a Certificate for modified duties in similar terms to the earlier Certificates. Again, he stressed the need for physiotherapy and that the plaintiff may need a cortisone injection;
(e) On 27 August 2012, the plaintiff consulted with Dr A Herath (another doctor at the clinic) and at that time, reported that his injury was stable – no better or no worse. Dr Herath noted that the plaintiff had not had any physiotherapy at that stage but had submitted a Worker’s Compensation Claim. Dr Herath issued a Certificate for modified duties in similar terms to the earlier Certificates issued by Dr Stabelos;
(f) On 7 September 2012, the plaintiff consulted with Dr Stabelos, at which time he continued to report pains in his left hand which shoots up to his wrist and forearm, but also complained of some right hand ache and some numbness in the left medial fingers on the dorsal side, together with some ache in the neck.
Examination revealed tenderness of the lateral neck muscles and there was tenderness in the area of the lateral left elbow.
Dr Stabelos again, urged physiotherapy and gave consideration to arranging nerve conduction studies and an MRI scan of the neck. Again, a Certificate for alternative duties was issued by Dr Stabelos in similar terms to the earlier Certificates;
(g) On 21 September 2012, the plaintiff consulted Dr A Herath at the clinic and advised him that he had undergone an independent medical examination and that his compensation claim had been “rejected”. At that time, it was noted that there was no change in his injury “condition” and it was neither better nor worse. A Certificate was issued by Dr Herath in similar terms to the earlier Certificates;
(h) On 22 November 2012, the plaintiff again consulted Dr Stabelos and reported that his WorkCover claim had been “rejected” and his employment had been terminated/ceased. Furthermore, the plaintiff reported that he had become depressed and was on anti-depressants for the last three weeks (having seen another general practitioner)[70] and also had undergone a CT scan of his neck.[71]
[70]Further evidence would indicate that such doctor was his longstanding general practitioner, Dr Chan
[71]See exhibit P, CT scan of the cervical spine undertaken on 30 October 2012 at page 84 PCB
The plaintiff also complained of worsening pain in the left elbow when he was employed and was put on the “winding machine”.
The plaintiff complained to Dr Stabelos of “depressed mood”, being unable to sleep through “constant thoughts of work”, not eating much, concentration reduced and had been unable to go to the gym “for months”.
Dr Stabelos noted that the plaintiff appeared slightly dishevelled, his “affect” was reduced, and that he had some thoughts of self harm but no plans – “would not harm self due to love for parents or girlfriend”.
There was continuing tenderness over the left lateral elbow and some tenderness around the lateral neck.
At that time, Dr Stabelos diagnosed the plaintiff to be suffering Depression, tennis elbow and neck pain;
(i) Two days later, on 24 November 2012, the plaintiff again consulted Dr Stabelos, when he again complained of numbness in his left hand (mainly the medial two fingers) and neck ache. Dr Stabelos noted that his home life was “Okay with no prior issues”. There was no current alcohol or drug use, he smokes six cigarettes a day, his father has depression but the plaintiff had never experienced depression. Dr Stabelos diagnosed Depression and questioned whether there was ulnar compression syndrome in the left elbow. At that stage, he was on Lexapro but Dr Stabelos changed the drug to Avanza;
(j) Five days later, on 29 November 2012, the plaintiff again consulted Dr Stabelos and complained of sleeping for long periods and not eating well. Dr Stabelos noted the plaintiff looked tired and unshaven with a reduced affect but there were no thoughts of self harm. He again attended on several occasions during December 2012, during which time Dr Stabelos referred him to a psychologist, Mr Gary Sheppard, and a psychiatrist, Dr Pasan Manawadu.
In particular, on 19 December 2012, Dr Stabelos recalls that he had a discussion with an employer representative who felt that the plaintiff “has no mental health problems at all and challenges diagnosis of depression and why he cannot come to an interview”.
[131][2013] VSCA 201 at paragraph [21] – [22]
[132][2013] VSCA 230 at paragraph [5]
205 In particular, I expressly reject the evidence of Mr Kossmann, who opined that the plaintiff was suffering from some ongoing neck injury associated with radiculopathy, clinical signs of sulcus ulnaris and carpal tunnel syndrome on the left side.
206 Also, after a consideration of all of the evidence, I do find that various employment circumstances significantly contributed to the development of a “mental injury” manifesting itself in depression in October 2012, as diagnosed by Dr Chan on 12 October 2012 and by Dr Stabelos on 22 November 2012. In particular, I consider that the following employment-related matters significantly contributed to “the mental injury” manifested by the plaintiff in October 2012:
(a) The organic injury to his left elbow which continued to give rise to symptoms over the period of time from May to September 2012 in circumstances where the treatment was only having a limited impact;
(b) Notwithstanding medical certificates being supplied for alternative duties over that period of time, the plaintiff gave a history to Dr Stabelos in November 2012 that he had worsening pain in the left elbow when he was employed and put on the “winding machine” which required constant use of the left arm. Furthermore, Dr Chan obtained a history on 17 October 2012 that the plaintiff, when performing alleged “lighter duties” after the incident and injury in May 2012, had been requested to work in an area which was inappropriate and as a consequence, re-aggravated his “tennis elbow”. The plaintiff also gave evidence that towards the end of his employment, he was moved on to “the lanes” which he described as a “rush of boxes coming down literally lanes, and all the heavy boxes come down those lanes”.[133] There was no challenge to the plaintiff’s evidence that he complained about his return to work duties and such complaints went unheeded. In particular, the plaintiff stated:
[133]T33, L13 – 22
“I went numerous times to the person that was in charge of the return to work program to tell him it was making it worse, he saw me maybe up to ten times and then after that he either locked the door … as soon as I would come and he would leave the office and say he was busy.”[134]
[134]T33, L6 – 12
(c) The Claim for Compensation under the provisions of the Act was rejected on the basis that he was not in fact injured and was not incapacitated for work. Seemingly, because the claim was rejected, the defendant initially did not pay for any physiotherapy as requested by Dr Stabelos in his Certificates;
(d) That he was advised by the letter dated 19 October 2012 that notwithstanding that his treating doctor considered him unfit for his pre-injury employment, the defendant was not obliged to provide any ongoing modified employment given there had been no acceptance of liability. Furthermore, somewhat strangely, the defendant also asserted in that letter that to give ongoing modified employment “may put you at risk of aggravation or further injury”. Notwithstanding, the plaintiff was told he was still required to submit medical certificates of capacity.
207 I consider that it is clear enough that from October 2012, the mental condition of the plaintiff deteriorated markedly and indeed, the episode involving confrontation with the sight-impaired receptionist occurred on 29 November 2012. It is here for the first time that the plaintiff was seen to be aggressive, agitated and verbally abusive.
208 Dr Manawadu, the treating psychiatrist of the plaintiff for most of the past time, initially saw the plaintiff on 8 February 2013 and was given an initial history that the plaintiff suffered a work injury in May 2012 which gave pain in his arm, that his WorkCover application was rejected at some time later and later still, the defendant could not provide him light duties as recommended by his treating general practitioner.
209 When initially seen by Dr Manawadu, the plaintiff was irritable and socially withdrawn, exhibited poor concentration, anger, weight gain and occasional panic attack. Furthermore, Dr Manawadu considered that the plaintiff presented with agitation, restlessness and with an anxious mood.
210 In particular, when queried about the consistency of the condition with the stated cause, Dr Manawadu stated:
“The condition is consistent with the stated cause. The condition began when he was terminated from his employment following a physical work injury which was not accepted by the work cover insurer. Therefore the worker[’]s termination of the employment was the causing factor, … .”
211 I accept that the plaintiff would have experienced stress during the course of his employment, commencing in May 2012, when he experienced the left tennis elbow with continuing symptoms, the circumstances whereby his employer did not accept that he had suffered any “injury”, the circumstances where his claim for compensation and incapacity was rejected by the defendant, where his ongoing medical certificates at that time were not adhered to and he was given work inconsistent with his left elbow condition and whereas he was summarily requested to cease work, notwithstanding that he had to continue to give certificates. All this has occurred in circumstances where there was no suggestion whatsoever that prior to May 2012, that the plaintiff had been anything other than a reasonably long-term full-time employee with the defendant.
212 It may be that the perception by the plaintiff that he was not well treated by the defendant may have been heightened by the various stressful events prior to 30 May 2012 which seemingly did involve his employment with the defendant. As I have already recorded, there were a number of short-term episodes of stress-related illnesses which required the plaintiff to take some time off. As I would understand the evidence, no doctor has referred to those particular aspects of his employment as a contributing factor to his present condition and I make no finding one way or the other.
213 After a consideration of all of the evidence, I do accept that the plaintiff has an ongoing “mental injury” which is best described and commented on by Dr Manawadu, who treated the plaintiff from 8 February 2013 on four to six-weekly intervals up to 9 July 2014, and then after, a ten-month gap, during which time the plaintiff was essentially treated by Dr Chan from 7 May 2015 to 18 June 2015, after which the plaintiff attended Dr Manawadu on 18 June 2015, 17 July 2015, 18 August 2015 and last attended on 11 September 2015 when, according to Dr Manawadu, the plaintiff became “verbally aggressive towards me in a very histrionic manner … and was about to lose control”.[135]
[135]T75, see exhibit N (letter from Dr Manawadu to Dr Chan, dated 18 September 2015)
214 Initially, Dr Manawadu diagnosed the plaintiff to be suffering from an “Adjustment Disorder with Severe Anxiety symptoms” and commenced treatment with a variety of medications to control his acute anxiety symptoms. At that time, medication included Lexapro, Seroquel, Diazepam and Alprazolam.
215 When he resumed treating the plaintiff in mid 2015, Dr Manawadu considered the plaintiff was suffering symptoms of severe Anxiety Disorder and Depressive Disorder, prompting an increase in his doses of medication to calm him and settle him. Dr Manawadu noted at that time (that is June 2015), that the plaintiff had high frustration levels, that he was extremely anxious with agitation, irritability, poor sleep and aggressive thoughts towards other people. Dr Manawadu also considered that his inability to obtain employment, the breakdown of his marital relationship and loss of social life had also led to a worsening of symptoms, together with the ongoing Court process.
216 In his last report dated 22 June 2015, Dr Manawadu stated that due to the existing psychiatric condition of the plaintiff, he is “vulnerable to extreme, exaggerated, impulsive acts which may cause harm to himself or others”. In his letter to Dr Chan, Dr Manawadu seemingly retreats slightly from this position when he states that the aggression of the plaintiff towards others is “not totally due to psychiatric disorder” and “mostly his aggressive behaviour is personality driven, for which he refuses to take any responsibility”.
217 Again, it must be stressed that there was no evidence of aggression or hostility to others prior to events in May 2012.
218 I do find that the plaintiff suffers from an Anxiety Disorder and Depressive Disorder, as diagnosed by Dr Manawadu, and such diagnosis is largely supported by the psychiatrist, Dr Epstein, who examined the plaintiff on 15 June 2015. In that respect, Dr Epstein found, on the history, that the plaintiff became increasingly angry, miserable, depressed and frustrated about the attitude shown towards him by the defendant after the occurrence of his injury in May 2012. He notes that the plaintiff has continued to feel angry, bitter, resentful and frustrated.
219 The evidence of Dr Epstein, as constituted by his report, is significant in my view. Dr Epstein examined the plaintiff reasonably recently, on 15 June 2015, obtained a very detailed history and had available to him a large number of reports from various treating doctors and indeed, doctors (including psychiatrists) who had medico-legally examined the plaintiff prior to that date. I put some weight on the report of Dr Epstein, because of the very detailed history, the large consistency of his opinions with Dr Manawadu and indeed, because it is consistent with my observations of the plaintiff. In this sense, I do accept the diagnosis of Dr Epstein that the plaintiff has developed a Major Depressive Disorder with accompanying anger and suicidal ideation and, in particular, has developed a Somatic Symptom Disorder, with predominant pain arising out of his work injury that has been exacerbated by his perception of being badly treated by the defendant.
220 Both Dr Manawadu and Dr Epstein considered that the plaintiff was unfit to return to his pre-injury employment or any other suitable employment and, in particular, both considered the prognosis for improvement to be “poor”.
221 I accept the opinions of both these doctors – Dr Manawadu, because he has been the treating psychiatrist for most of the time and has had the advantage of dealing with the plaintiff over a number of years; and also the opinion of Dr Epstein, for the reasons I have recorded above.
222 I expressly reject the opinion of Associate Professor Mendelson, not least because he is the only psychiatrist who considered that the plaintiff had no psychological condition. His one and only examination was on 22 May 2013.
223 I note that Dr Jager last examined the plaintiff on or about 25 June 2015. At that time, he seemingly accepted that the plaintiff had ongoing symptoms of anger, depression, reduced enjoyment, libido and memory, together with aggressive feelings and suicidal thoughts. Furthermore, he expressly stated that he could not identify any “exaggeration” on the part of the plaintiff. He also noted that the plaintiff had a strong illness belief and considerable emotional disturbance, and he notes that it would be difficult seeing the plaintiff sustaining concentration over a whole day. Dr Jager maintained his diagnosis of Adjustment Disorder with disturbance of emotions and conduct, and described the symptoms mentioned above to be a dysfunctional response to physical symptoms.
224 Dr Jager, although accepting that the psychiatric symptoms emerged only after the claim was rejected, proffers what amounts to be a legal opinion, that such condition did not arise out of or in the course of the plaintiff’s employment. In any event, Dr Jager noted that the emotional disturbance “spiralled downward” quickly thereafter.
225 However, it would appear that the diagnosis made by Dr Jager of Adjustment Disorder was on the basis that the plaintiff continued to have some work-related physical condition, but if not, the Adjustment Disorder was not caused by work. What is plain is that Dr Jager considered the plaintiff had similar symptoms, as described by Dr Manawadu and Dr Epstein, and seemingly, does not proffer any other basis for the ongoing Adjustment Disorder.
226 Although Dr Jager disagreed with a diagnosis of Major Depressive Disorder made by Dr Manawadu, it cannot be gainsaid that he is of the opinion that the plaintiff has an ongoing psychiatric condition. To the extent that Dr Jager considers the plaintiff has some present capacity for employment, I reject such opinion and favour the opinions of Dr Manawadu and Dr Epstein.
227 I do note that Dr Kornan, when he examined the plaintiff on 9 May 2013, obtained a history of the work injury in 2012, the attitude of the defendant to the light duties thereafter and the cessation of employment. At that stage (two-and-a-half years ago), Dr Kornan diagnosed the plaintiff to be suffering an Adjustment Disorder with mixed disturbances of emotion and conduct, with indications of anxiety and depression and associated conduct problems. At that time, he considered the plaintiff unfit for his pre-injury employment or any other alternative work.
228 I consider, on all of the evidence, that the plaintiff has a significant ongoing psychiatric condition, as a result of which he suffers somatic symptoms in his left arm and neck rather than any organic injury in that area.
229 Accordingly, I do find that the plaintiff had suffered a mental injury arising out of or in the course of his employment over the period from May 2012 to October 2012 as a result of the very matters to which I have referred to earlier in this Judgment. I consider that the diagnosis proffered by Dr Manawadu of Anxiety Disorder and Depressive Disorder which is largely supported by Dr Epstein, who describes the plaintiff suffering a Major Depressive Disorder with accompanying anger and suicidal ideation, are appropriate. I should point out that to the extent that it can be said that any aggressive behaviour by the plaintiff is personality driven, it must be borne in mind that an employer takes a worker as he finds them and, as I have stated already, the manifestation of any such condition has only been seen after the stressors experienced by the plaintiff at work (for example the confrontation with the receptionist in November 2012).
230 I am also satisfied that the condition now suffered by the plaintiff is a “mental or behavioural disturbance or disorder” within the meaning of the definition of paragraph (c) of the definition of “serious injury”.
231 Furthermore, I consider that such disturbance or disorder is likely to last for the foreseeable future and thus is “permanent” within the definition of “serious injury”. In this respect, I accept the opinions of Dr Manawadu and Dr Epstein that the prognosis for improvement is “poor” and that he is incapable of any employment. Having observed the plaintiff give evidence, I am certainly of the opinion the plaintiff is incapable of performing any work now, partly as a result of his ongoing symptoms and partly as a result of the medication that he takes which interferes with his concentration and ability to sleep well.
232 Furthermore, I am of the opinion that the consequences suffered by the plaintiff as a result of the disturbance or disorder under paragraph (c) in relation to “pain and suffering” or “pecuniary loss” must be found to be “severe”; that is “when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be, fairly described as being more than serious to the extent of being severe”.
233 In coming to a view that the consequences are “severe”, I note the following:
(a) I consider that the plaintiff has been incapable of performing work for the last three years because of his psychiatric condition, and that condition is likely to extend into the foreseeable future, notwithstanding that he is only thirty-two years of age;
(b) That he has been under the care of a psychiatrist and psychologist, needing a variety of treatment, and is presently taking various medications for his psychiatric condition, which causes tiredness and reduced concentration;
(c) That such disturbance or disorder has manifested itself in somatic-type symptoms in his left arm and neck which he perceives to be giving rise to pain and restriction;
(d) The plaintiff has suffered, and continues to suffer, at least suicidal ideation as a result of his condition, as recorded by the psychologist and most psychiatrists who have consulted with the plaintiff. In this respect, I do consider it likely that the circumstances of the plaintiff attending the Dandenong Hospital on 19 July 2015 do represent a suicide attempt earlier that day.[136]
[136]See exhibit B
234 Accordingly, I find that the plaintiff has suffered a “serious injury” under paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. Given his inability to work now or into the foreseeable future, the plaintiff satisfies the loss of earning capacity requirements of s134AB(38) of the Act and is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.
235 Before making any Orders, I do refer to certain submissions advanced by those acting on behalf of the defendant. In particular, the defendant submits:
(a) Relying on the decision of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[137] the defendant submits that the application for leave pursuant to s134AB(16) does not occur “in a vacuum”. The defendant highlights that s134AB sets out a variety of matters which have to be attended to by the worker who seeks a serious injury certificate. In particular, it is highlighted that the provision of a draft statement of claim has to occur pursuant to the Ministerial Directions issued pursuant to s134AG of the Act.
[137][2010] VSC 260 and, in particular, at paragraphs [27] – [35]
Exhibit 4 represents the Draft Statement of Claim provided by those acting for the plaintiff. It is submitted that a perusal of such document makes clear that it is pleaded “on the basis of the plaintiff performing frequent, heavy and awkward lifting and bending, resulting in physical injury to the plaintiff’s neck and arms and resultant psychological reaction”. In particular, it is asserted that nowhere in the draft pleading is there any suggestion of a discrete psychiatric injury caused by other than the physical work and resulting injury.
Furthermore, reference is made to the plaintiff’s affidavits where there is said there is only a “fleeting reference to psychological issues predating May 2012”. I will not say anything further about this aspect as I have not found that any employment prior to May 2012 has been a significant contributing factor to his medical condition.
However, given the scheme of the Act, so it is submitted, the plaintiff cannot obtain leave pursuant to the definition of “serious injury” contained within subsection (c) “on the basis of picking out any evidence and any set of circumstance which might have given rise to some sort of psychological upset, and then drafting a cause of action to suit after leave has been obtained”.
This submission must be rejected for a variety of reasons. First, and without wishing to give any credence to the submission, a perusal of the Draft Statement of Claim reveals what only can be referred to as bland pleading. Paragraph 4 of the Draft Statement of Claim pleads that from “about 2008” the work which the plaintiff “was required to perform in the course of his work duties for the defendant involved a frequent heavy and awkward lifting and bending such that the workplace placed unreasonable strain on the plaintiff’s neck and arms in the circumstances”. This was referred to as the “work process” and it was further alleged that such work process gave rise to “serious personal injuries, loss and damage including, inter alia, injury of the neck, referred pain to the right shoulder and arm, pain and limitation of movement of the neck, left ulnar radiculopathy, anxiety and depression”. There is no reference at all to any event on or about 30 May 2012 which clearly is set out in the affidavit material. Furthermore, there is no direct reference that any anxiety or depression suffered by the plaintiff was reactive to any particular physical injury on any particular date. The causes of action relied on by the plaintiff are in negligence and breach of statutory duty.
In any event, I see no legal basis for the essential proposition submitted by the defendant that the plaintiff should be limited to a claim for psychiatric injury consequential upon physical injury. I was not referred to any particular authority in supporting the proposition that the scope of the application for leave made to the Court is constrained by the form of the draft statement of claim attached to a Form A application. The application to the Court is made under s134AB(16)(b) of the Act and the Originating Motion so issued was not limited in the way as suggested by the defendant.
Furthermore, in the material forwarded to the Authority, there was reference in the affidavits to psychological symptoms, both before and after 30 May 2012, and also includes a variety of medical reports, including the reports from Dr Stabelos, Dr Chan and the treating psychiatrist, Dr Manawadu. The Form A application makes clear as relying on not only paragraph (a) but also paragraph (c) of the definition of “serious injury”. It was incumbent upon the Authority to discern whether or not the plaintiff had suffered a serious injury within the meaning of paragraph (c) of the definition of “serious injury”;
(b) The defendant submits that the “structure of the Act is that leave can only be given in relation to a compensable injury that is serious. It is for the plaintiff to establish what constitutes the relevant compensable injury, how it is related to his employment and then, to establish that injury to be serious in its consequences. It follows that it is not sufficient for a plaintiff to prove that a compensable injury is merely one cause along with a number of other non-compensable causes contributing to a set of consequences said to qualify as serious.”
In the circumstances of this matter, I have found a number of stressors arising out of or in the course of the plaintiff’s employment which have significantly contributed to his psychiatric state. In this sense, there are no “non-compensable causes”.
Furthermore, I accept the submission of the plaintiff that in any event, it can be sufficient for a plaintiff to establish that a compensable injury is but one cause of a consequence relied on. As submitted by the plaintiff, this is clear from Grech v Orica Australia Pty Ltd & Anor,[138] wherein Ashley JA stated at paragraph [58] “… a consequence is compensable if it ‘results from or is materially contributed to by’ an injury” and that the injury does not have to be sole cause;
[138](2006) 14 VR 602
(c) The defendant also submits that “the rejection of WorkCover claim” and “termination of duties” cannot be relied upon by the plaintiff in establishing a compensable “mental injury” as a result of the disentitlement provision contained within s82(2A) of the Act.
Section 82(2A) of the Act relevantly states:
(2A)There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a)management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’ employer; or
(b)…
(c)…
(d)… .”
Section 82(10) of the Act defines “management action” to include a wide range of matters. In particular, it does include the dismissal of a worker, suspension of a worker’s employment, an appraisal of the worker’s performance, redeployment of the worker, or any communication in connection with an action mentioned above. Subsection (2A) and the definition of “management action” were inserted into the Act in 2010. I do point out that at no time during the course of the proceeding was mention made by the defendant that s82(2A) of the Act had any potential application and it was only in the written submissions of the defendant that such a defence was raised.
If such section was to be utilised, I am of the view that the defendant would bear the evidentiary onus of establishing that the management action or decision was taken on reasonable grounds and in a reasonable manner. If that onus was satisfied, the plaintiff would then bear the legal onus of demonstrating that his or her condition did not arise wholly or predominantly from such action.[139]
[139]Such a view was taken by Magistrate Garnett in Kyrgsam-Ehyeats v State of Victoria (4 November 2011) at paragraph [30]
As the matter was not argued before me, I do not find that the defendant has discharged its evidentiary onus and furthermore, even if it had, it is open to the plaintiff to argue that any mental injury did not arise out of wholly or predominantly from any such management action, bearing in mind that a part of the employment stress identified throughout the course of his employment has been the injury in May 2012 and the attitude of the defendant to accommodating the plaintiff, bearing in mind his WorkCover Certificates from his treating doctor.
This submission must be rejected;
(d) The defendant, by way of its Reply, takes issue with the proposition submitted by those acting for the plaintiff, that compensable injury, for the purposes of serious injury, “can be established by any related cause of a mental or behavioural disturbance or disorder”. The defendant submits that the alleged “employer mistreatment over time before 30 May 2012 and also the secondary reaction to physical injury on 30 May 2012 involved two distinct causes in the same way as does injury to the back arising from heavy labouring work over time, followed by injury to the back from slipping and falling at work”. Leaving aside the correctness of that proposition, it must be stressed that on the findings of fact made by me, the serious injury which I consider the plaintiff has established under paragraph (c) of the definition of “serious injury”, involves a continuum commencing from the occurrence of the left tennis elbow in late May 2012 until when he ceased employment. In this sense, the mental injury has occurred over the course of such employment. I reject any submission by the defendant to the contrary.
Conclusion
236 I am satisfied that the plaintiff has suffered a “serious injury” as defined in s134AB(37)(c) of the Act. Accordingly, I grant leave to the plaintiff to bring proceedings at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering and pecuniary loss for injury arising out of or in the course of his employment with the defendant.
237 I will hear the parties on costs.
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ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit A
·Letter from Dr Chan to Pine Lodge dated 9 October 2015.
Exhibit B
·Subpoenaed documents from the Dandenong Hospital consisting of four pages.
Exhibit C
·Facebook photograph of the plaintiff prior to the alleged organic injury.
Exhibit D
·Clinical notes folder.
Exhibit E
·Affidavits of the plaintiff sworn on 30 June 2014 and 28 October 2015.
(Such documents found at pages 21–36 Plaintiff’s Court Book (“PCB”)).
Exhibit F
·Woolworths Limited Incident/Injury Report dated 3 July 2012.
·Worker’s Injury Claim Form dated 21 March 2013.
·Woolworths’ rejected claim for compensation letter dated 14 September 2012.
·Worker’s Injury Claim Form dated 21 August 2012.
·Woolworths’ letter to the plaintiff dated 19 October 2012 with offer of suitable employment/temporary modified duties.
·Letter from Woolworths Limited dated 18 April 2014 involving rejected claim for weekly payments for medical and like expenses.
(All such documents found at pages 36.2–36.11 PCB).
Exhibit G
·Document headed “Psychology for Change/Mental Healthcare Plan, GP Feedback” dated 1 February 2013.
·Further document headed “Psychology for Mental Healthcare Plan, GP Feedback” dated 19 May 2013.
(All such documents found at pages 36.13 and 36.14 PCB).
Exhibit H
·Document from Centrelink and medical report for Disability Support Pension dated 24 February 2013
(Such document found at pages 36.15–36.24 PCB).
Exhibit J
·Certificates of Capacity dated 30 May 2012; 15 June 2012; 29 June 2012, 27 July 2012, 10 August 2012, 27 August 2012, 7 September 2012 and 21 September 2012.
(Such documents found at pages 36.25–36.40 PCB).
Exhibit K
·Reports of one of the treating general practitioners, Dr George Stabelos, dated 20 November 2012, 10 January 2013, 16 December 2013, 9 May 2014, 17 April 2015 and 8 July 2015.
(Such documents found at pages 38–53 PCB).
Exhibit L
·Report of the neurologist, Dr Janaka Seneviratne, dated 18 March 2012.
(Such document found at pages 56–57 PCB).
Exhibit M
·Reports of the further general practitioner, Dr A Chan, dated 13 January 2013 and 25 April 2015.
(Such documents found at pages 57–61 PCB).
Exhibit N
·Reports from the treating psychiatrist, Dr Pasan Manawadu, dated 2 May 2013, 26 April 2013, 27 May 2013, 27 August 2013, 19 June 2015, and 22 June 2015.
·Letter from Dr Manawadu to Dr Chan dated 18 September 2015.
(All such documents found at pages 61.1 and 62.75 PCB).
Exhibit O
·Report of psychologist, Ms Amanda Wallis, dated 24 October 2015 together with a further document referred to as the “Beck Depression Inventory” consisting of two pages of a further document headed “Beck Anxiety Inventory”.
(Such documents found at pages 76–81 PCB).
Exhibit P
·Ultrasound of the left fourth and fifth fingers dated 19 October 2012.
·NDCD scan of the cervical spine dated 30 October 2012.
·MRI of the cervical spine dated 13 December 2012.
(Such documents are found at pages 82–84 PCB).
Exhibit Q
·Report of the consultant psychiatrist, Dr Paul Kornan, dated 13 May 2013.
·Report of the neurologist, Dr Leslie Roberts, dated 23 July 2013.
·Reports of the orthopaedic surgeon, Mr Thomas Kossmann, dated 13 November 2013 and 27 May 2015.
·Report of the consultant neurosurgeon, Mr David Brownbill, dated 10 June 2015.
·Report of the consultant psychiatrist, Dr Michael Epstein, dated 22 June 2015.
·Report of the consultant neurologist, Mr Geoffrey Klug, dated 26 February 2015.
(All such documents are found at pages 85–156 PCB).
2 The defendant tendered the following material:
Exhibit 1
·Facebook photographs (three).
Exhibit 2
·Southern Health waiting list dated 17 April 2013.
(Such document found at page 37 PCB).
Exhibit 3
· Report from Dr Janaka Seneviratne dated 10 December 2012.
(Such document found at page 55 PCB).
Exhibit 4
· Draft Statement of Claim undated.
(Such document found at pages 11 – 15 PCB).
Exhibit 5
· Statement made by the plaintiff to police in relation to incident dated 27 May 2015.
Exhibit 6
· Report from the Department of Emergency Medicine, Dandenong Hospital, dated 24 November 2014, consisting of two pages.
Exhibit 7
· Reports of the orthopaedic surgeon, Mr Brian Davie, dated 27 March 2013, 27 July 2013 and 13 August 2013.
· Reports of the occupational physician, Dr David Barton, dated 12 September 2012, 11 June 2013, 16 December 2013 and 22 June 2015.
· Reports of the consultant psychiatrist, Associate Professor George Mendelson, dated 29 July 2013 and 22 January 2014.
· Reports of the consultant psychiatrist, Dr Alan Jager, dated 24 February 2014, 25 June 2015 and 23 October 2015.
· Report of the neurosurgeon, Associate Professor Graeme Brazenor, dated 11 September 2015.
(Such documents found at pages 3–81 Defendant’s Court Book (“DCB”)).
Exhibit 8
· Certificate of Capacity dated 29 July 2012.
(Such document found at page 100 DCB).
Exhibit 9
· Affidavit of Ian Seed sworn on 6 October 2015.
· Statement of Chris Obeid dated 30 November 2012.
· Statement of Brent Franklin dated 30 November 2012.
(All such documents found at pages 159–160 and 163–167 DCB).
Exhibit 10
· Police report in relation to an incident on 7 October 2013.
Exhibit 11
· Recovre Vocational Report dated 24 August 2015.
(Such document found at pages 132 – 158 DCB).
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