Medjeri v Assay Abloy Australia Pty Ltd

[2013] VCC 1830

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-05406

MARGARET MEDJERI	Plaintiff
v
ASSAY ABLOY AUSTRALIA PTY LTD	First Defendant
and
WORKSAFE VICTORIA	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2013
DATE OF JUDGMENT:	28 November 2013
CASE MAY BE CITED AS:	Medjeri v Assay Abloy Australia Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2013] VCC 1830

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious Injury Application - Psychological disorder as a result of bullying in the workplace – whether consequences “severe” – pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB
Judgment:                Plaintiff’s application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Hayes	Nowicki Carbone
For the Defendants	Mr I Gourlay	Minter Ellison

HIS HONOUR:

Preliminary

1       Over the period from 2006 to 2010, the plaintiff was subjected to bullying in her employment with the first defendant, as a result of which she suffered a significant psychological reaction.  It was subsequently diagnosed as a Major Depressive Disorder, alternatively an Adjustment Disorder.  There was some improvement in her condition under treatment by a psychologist, Mr Andrew Dunhill, and the plaintiff has resumed alternative employment.  She claims a range of recreational, social and domestic activities are lost or curtailed.

2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment over the period from 2006 to 2010. The plaintiff claims to have suffered a permanent severe mental disorder in the nature of a Major Depressive Disorder, alternatively an Adjustment Disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.

3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and medical reports of treating and consulting practitioners were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.

Relevant background

4       The plaintiff is now fifty-two years of age, is married with two teenage sons.  She was born in Serbia in the former Yugoslavia and came to Australia in 1970 at the age of nine.  She was educated to Year 10, and after secondary school worked in various areas of employment as a process worker.  She had time off for the birth of her children, and then worked as a personal care attendant, having completed the necessary qualifications.  She suffered chronic back pain, and resigned from that position.  She commenced working with the first defendant in approximately 1988.  She left to look after her children for a period.  She returned again to employment with the first defendant in 2006 or 2007.  The work was process work, putting locks together.  She has suffered a number of unrelated physical conditions, including diabetes and high cholesterol, but was able to work full time and manage her family, with an active social life.  In 2010, she developed carpal tunnel syndrome, but surgery was effective in reducing the symptoms.  She was otherwise in good health. 

5       Prior to 2006, she enjoyed knitting, crocheting, reading and painting.  She would regularly attend dinner dances with other members of the Hungarian community at a club at Keysborough.  Her relationship with her husband was good.  She suffered no psychological conditions nor symptoms. 

The injury and its consequences

6       Some short time after the plaintiff recommenced employment with the first defendant, she was the subject of conflict, bullying and harassment at the hands of two workplace supervisors, Penny and Rita.  Details of the conduct of these persons are described by the plaintiff in her affidavit.[1]  The conduct involved intimidation, use of offensive language, inappropriate physical contact and demeaning behaviour.  Mr Gourlay, on behalf of the defendants, did not dispute the conduct occurred, and did not dispute the causative relationship between it, and the plaintiff’s psychological problems.

[1]Plaintiff’s Court Book (“PCB”) 18 – 19

7       The plaintiff noticed a deterioration in her mood in mid-2009.  She went to her general practice, the Hallam Family Practice, in 2009 and described symptoms of tearfulness and irritability related to the stress at work.  She was prescribed an antidepressant and said she was considering looking for alternative employment.  She again attended a general practitioner at the practice, Dr Tamara Jones, in January 2010, complaining of symptoms of nervousness and shaking.  She said she was, at that stage, contemplating suicide.  She continued to see Dr Jones until May 2012, when that practitioner moved and her care was taken over by Dr Toai Phan.

8       She was referred to a psychologist, Mr Andrew Dunhill, in November 2010, and has seen him regularly from that time to the present.  She still sees Mr Dunhill each three to four weeks.  He has provided a number of reports.[2]  According to Mr Dunhill’s report:

[2]PCB 27 – 36

“Since mid 2009, Margaret has reported the following psychological and physiological symptoms:

·periods of low mood

·angry and irritable at times (including occasional angry outbursts)

·crying easily

·anhedonia

·reduced motivation

·fatigue

·poor concentration

·poor short term memory

·disturbed sleep

·variable appetite

·feeling stressed much of the time

·worried about making mistakes at work

·worried about the possibility of verbal abuse from her supervisor

·      strong anxiety symptoms (nausea increased heart rate, shaking, headaches)

·occasional panic attacks

·poor self esteem

·low self confidence

·suicidal ideation.”[3]

[3]PCB 29

9       In February 2010, the plaintiff raised these issues with management and her union and was relocated to another area in the workplace.  According to Mr Dunhill, however, she still felt stressed and anxious and eventually lodged a WorkCover claim.  By reason of her symptoms, she ceased work completely in 2011 and remained off work for a number of months.  Upon her return to work, she was assigned a new production line away from her previous work area and former supervisor; however, she still suffered strong symptoms of anxiety and struggled with her mood.  At this stage, she was working full time.  She was assigned a different role in November 2011, able to work at her own pace.  According to the report of Mr Dunhill, she was feeling “much calmer and happier”.[4]  However, again her mood had deteriorated with increasing anxiety.

[4]PCB 28

10      In January 2012, her former supervisor, Penny, was demoted and relocated to another area of the factory.  Notwithstanding, she dwelled upon past events and her self esteem and self confidence were significantly affected.

11      In May 2013, she was retrenched, while working on full-time duties.  She felt anxious about the prospects of applying for and obtaining new employment, but by July 2013, she had obtained employment at Villa Maria, an aged-care facility, on a casual basis as a kitchen/laundry hand.  She has remained in that employment to the present time and her work hours vary, averaging about three days per week.  Some weeks she works only one shift, and at other times works six days per week.  She accepted in evidence that she was prepared to take all the work that was available when offered.  According to her affidavit, she claimed that she had missed some shifts because of her psychological symptoms.  She is able to undertake her work, although says that she suffers difficulties with memory and concentration.  She says she does not believe she would be able to return to her former employment as an aged carer because of these problems. 

12      According to Mr Dunhill, and her current general practitioner, Dr Phan, she has the capacity for full-time work.[5]

[5]PCB 30, PCB 49(a)

13      Presently, she sees Mr Dunhill every three or four weeks.  According to his report, he expects the need for ongoing counselling for less than six months.[6]  She sees Dr Phan each month or so and he prescribes an antidepressant, Pristiq, 150 milligrams daily. 

[6]PCB 30

14      In November 2012, she saw a psychiatrist, Dr Aileen Jones, on two or three occasions.  There is no report from that practitioner.

15      According to the plaintiff’s most recent affidavit,[7] she currently suffers the following consequences:

[7]PCB 24-26

·She requires continuing treatment from Mr Dunhill and Dr Phan on a regular basis.

·She takes the antidepressant, Pristiq, 150 milligrams per day.

·She is able to work in her current employment, but says she cannot cope with all of the work duties, and in particular suffers episodes of forgetfulness and lack of concentration.  As a result, she does not believe she would be able to return to work as an aged carer.  She used to enjoy gardening but has not been able to return to that activity in the same manner as before she suffered her injury.

·She is much less socially active and in particular does not attend functions in the Hungarian community, dinner dances and lunches, which she previously enjoyed.  In cross-examination, she admitted she has been to two or three this year with her husband. 

·Her relationship with her husband and children remains affected by her condition.  She and her husband have had marriage counselling sessions on seven to eight occasions.  Her physical relationship with her husband is almost non-existent.

·She is reliant upon her husband and children to perform some domestic duties.

·Her sleep is affected.  Her sleep is interrupted three to four times per night and she experiences some nightmares.

·Her self confidence and self esteem have been significantly affected.

·While she is coping well at the present time with her current employment, she remains vulnerable should she encounter similar issues in the new workplace.  According to Mr Dunhill in his report of September 2013, there were no significant issues reported.[8]

[8]PCB 30

Medical opinions 

16      I found the reports of Mr Dunhill helpful.  They provide comprehensive detail as to the plaintiff’s symptoms over the years, and his treatment.  The treatment has involved counselling and support.[9]  He diagnosed the plaintiff as suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.  Of significance, he noted that the plaintiff’s condition had significantly improved.  He said:

“I believe that Margaret’s condition has improved significantly over the past four to five months and is now relatively stable … I feel that it would be helpful for Margaret to have ongoing CBT based counselling with a psychologist to ensure that she is able to make the transition to a new workplace and deal effectively with any stress/anxiety that might occur during this transition.  I anticipate that ongoing counselling would only be a short-term requirement – (ie less than six months) unless there was a significant issue emerging in the new work environment.  I do not feel there is a requirement to refer her to a psychiatrist or to any other medical specialists … It is my opinion that Margaret currently has a capacity for full-time work, on condition that it does not involve working in the close vicinity of her former supervisor, Penny.  This should not be an issue given that Margaret is no longer employed by Assay Abloy … My understanding is that Margaret has in fact been working with a new employer for approximately two months and I am not aware of any significant issues with her return to work so far.”[10]

[9]PCB 30

[10]PCB 30

17      The plaintiff was examined at the request of her solicitors by Dr David Weissman, consultant psychiatrist, in August 2013.  He noted, when the plaintiff stopped work in May 2013, that she reported:

“… feeling angry, depressed, crying (especially at home), she had sleep disturbance with insomnia, frequent nightmares about work and social withdrawal … She told me that she was at her lowest in or around 2011 and was feeling very angry, very depressed and very suicidal.  She told me that she wanted to hang herself with a rope … .”[11]

[11]PCB 43

18      She reported to Dr Weissman marked forgetfulness in her current job.  She said:

“… that her concentration and short-term memory are poor, she has difficulty coping and that she is thinking of ‘giving up’.  She described her emotional state as ‘pretty bad’ and depressed.  She told me that she feels frustrated and irritable.  She cannot get to sleep before midnight.  She wakes up at 5 or 5.30am for work.  She then feels tired during the day.  She has occasional passive suicidal thoughts, but less than she did.”[12]

[12]PCB 44

19      She described to Dr Weissman ongoing intrusive thoughts of the bullying she had previously suffered.  There were depressive and anxiety themes.  He characterised her as having lowered self esteem and self confidence, together with elevated responsiveness to triggers and reminders of her work-related experiences.  He considered the plaintiff honest, genuine and straightforward and said she was suffering a Chronic Major Depressive Disorder with Anxiety and traumatisation features of moderate intensity or severity.  He said she was totally and permanently incapacitated for a return to work to her pre-injury duties and only had a present partial capacity for suitable duties with her current employer.  He said her psychiatric prognosis was uncertain and guarded and only fair at best.  She still suffered at least a moderate group of work-related psychiatric symptoms.

20      Her current treating general practitioner, Dr Phan, described the plaintiff as suffering mixed anxiety and depression as a result of being bullied at work.  He noted that as of March 2012, the plaintiff was cleared for normal duties.  He said her condition had essentially stabilised and she was managing “okay” but still required psychological support from Mr Dunhill.

21      The plaintiff was examined on a number of occasions between 2011 and 2013 by Dr Richard Prytula, consultant psychiatrist.[13]  In his most recent report (November 2013), the plaintiff complained of current symptoms, including short-term memory loss and forgetfulness.  She said there were difficulties with concentration and that her mind “travels”.  The plaintiff said she slept for about three hours before waking up, and had bad dreams regularly.  She was fatigued during the day.  She said that at home she was nervous and angry with her husband and children.  At times she had suicidal thoughts and felt “uptight”.  There was no associated suicidal intent nor plan.

[13]Defendants’ Court Book (“DCB”) 1 – 28

22      Dr Prytula said the plaintiff’s mood was generally within the normal range but showed signs of sadness.  He said she suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  She had a current work capacity for her present employment.  He said her psychiatric condition had some effect upon her home life and daily activities, and her relationship with her family.  He said he was generally in agreement Mr Dunhill’s recent report.  She had improved somewhat over recent times, but still had some residual signs and symptoms relating to mood, memory, concentration and sleep disturbance.  He thought her progress was reasonable. 

23      The plaintiff was examined by Dr Timothy Entwisle, consultant psychiatrist, in March 2012.[14]  At that time, he received a complaint from the plaintiff of psychological symptoms including poor sleep with nightmares, low energy levels, forgetfulness, avoidance of people and social functions and affected mood.  He considered she was suffering a major depressive illness which was in remission with treatment.  He said the treatment from Mr Dunhill had been appropriate and necessary, as was the antidepressant medication.  He noted that at times she had a capacity for her current duties although had trouble coping on the process line (she was still working for the first defendant).  He said she was no longer suicidally depressed and thought she would require the antidepressant medication for about a further year.

[14]DCB 29

Conclusions

24      I accept the plaintiff suffered very significant bullying and intimation at the hands of her supervisors over a significant period from 2006 or 2007 until 2010.  I accept that this resulted in a range of symptoms over that period, as described by Mr Dunhill in his report.[15]

[15]PCB 29

25 The real issue to be determined in this application is the nature and extent of the improvement in the plaintiff’s condition over recent times and whether the symptoms which she suffers, and the consequences, achieve the “severe” test as prescribed by the Act.

26      In the course of cross-examination, the plaintiff was questioned about her current state.  She accepted that with her carpal tunnel problems in 2010, it was difficult for her to pursue some of her hobbies, including crochet, interlock, painting and knitting.  She was able to socialise to some extent in the Hungarian community, although not as much as before.  She accepted that with the help of Mr Dunhill in 2012, there was gradual progress in her psychological state, and her mood became happier.  She was more able to deal with her day-to-day situation, and her relationship with her husband improved.  Notwithstanding anxiety when she was terminated in May 2013, she was able to find alternative employment within a couple of months.  She accepted that she drives the car regularly, takes her children to school and picks them up.  According to the history to Dr Prytula, she cleans the house and cooks meals.  She makes lunch for her husband, who works in the afternoon. 

27      She accepted at the present time that, by and large, her household was reasonably happy.  She recently attended her son’s debutante ball and enjoyed the evening, dining and dancing.  She accepted Mr Dunhill had taught her strategies to deal with the day-to-day issues in her life.  She went camping with her husband in the Otways in a family “pop-up” van.  She celebrated her fiftieth birthday at home in 2011.  She accepted that over the last three months she had been feeling pretty good.  She accepted that she told Mr Dunhill in June 2013 that her mood had improved and that her husband and sons were responding positively.  Mr Dunhill’s treatment had been positive.  She had recently tried to get back to some gardening and hoped to do more.

28      As stated, I was impressed with the opinion of Mr Dunhill.  He has seen the plaintiff on many occasions since November 2010 and is in the best position to report upon the plaintiff’s symptoms, and the extent of the improvement in recent times.  He said that over the last four to five months, her condition had significantly improved and was now relatively stable.  He considered that she would only require psychological counselling for another six months, and that she had a capacity for full-time work.  There was no requirement for the referral to a psychiatrist or other medical specialist.  That opinion was not dissimilar to Dr Richard Prytula, who had seen the plaintiff on three occasions, including in November of this year.  The opinion of Dr Entwisle is somewhat dated and has not taken account of the current improvement.  The short recent report from the general practitioner, Dr Phan, generally coincides with the opinion of Mr Dunhill. 

29      The report of Dr Weissman paints a somewhat gloomier picture.  He diagnoses the plaintiff with a Chronic Major Depressive Disorder and says she is still suffering significant features and symptoms.  He conceded that the plaintiff was probably at her worst in 2011 but was still suffering moderate mixed depressive and anxiety and symptoms and themes associated with traumatisation.  He noted forgetfulness and loss of self esteem and confidence.

30      Generally, I prefer the opinions of Mr Dunhill and Dr Prytula given the number of occasions they have each seen the plaintiff and the period over which they have mapped her progress. 

31      I accept, however, that the plaintiff does still suffer symptoms from the psychological disorder.  These include some anxiety and depression, some effect upon her relationship with her husband and children, although that is much improved.  Further, the plaintiff will require continuing psychological treatment for about six months, and antidepressant medication.  I accept that, to some extent, the plaintiff remains vulnerable in the workplace.  Should she be subjected to some personal conflict, there is the prospect that the symptoms will resume.  I further accept that she suffers problems with concentration and memory.  In accordance with the opinion of Mr Dunhill, I accept that she has the capacity for full-time work in her current employment and that she will take as many shifts as are offered to her by her current employer.

32      The authorities have defined the word “severe” to be a word of stronger force than “serious”.  Further, the legislation requires that the condition be long term.  It is necessary to compare the plaintiff’s psychiatric health prior to the subject workplace issues, and her health at the present time.  Regard should be had not only to domestic, social and recreational activities which are lost or curtailed, but also those which are retained. 

33      In cases concerning an application under ss(c), one sees a range of psychological symptoms which may arise.  Symptoms seen in conditions which are deemed “severe” include intensive and prolonged psychological or psychiatric counselling, including psychotherapy; intensive and prolonged treatment with higher doses of antidepressant and other medications, periods of time as an inpatient in psychiatric hospitals and occasionally even more significant interventionist therapy.  Some symptoms include the development of delusional thinking, suicide planning and, in some cases, suicidal attempts.

34      In my view, the symptoms and consequences of which the plaintiff complains do not achieve the “severe” level at the present time.  The plaintiff’s condition is currently improving, with the real prospect that she will not need any psychological counselling after the next six months.  There is also the prospect that she will no longer require antidepressant medication.  She is able to work varying hours per week, depending upon shifts that are available.  I accept the opinion of Mr Dunhill that there has been a significant improvement and I accept her evidence that she is coping reasonably well at the present time.  She said that her relationship with her husband had improved.  Even accepting she still suffers the symptoms to which I have referred, in my view, they do not attain the “severe” level that the legislation requires.

35      In those circumstances, the plaintiff’s application fails.

36      I shall make consequent orders.

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