Milonas v Monash Health (ABN 82 142 080 338)
[2020] VCC 1044
•1 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04207
| VIVIAN (aka VIVIENNE) MILONAS | Plaintiff |
| v | |
| MONASH HEALTH (ABN 82 142 080 338) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 March 2020 | |
DATE OF JUDGMENT: | 1 April 2020 | |
CASE MAY BE CITED AS: | Milonas v Monash Health (ABN 82 142 080 338) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1044 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Psychiatric injury – whether the symptoms of the psychiatric injury can constitute consequences – whether the severity of the symptoms and consequences meet the statutory test for pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; State of Noonan v Victoria [2013] VSCA 289; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: The plaintiff has leave to bring a common law claim to recover damages for both pain and suffering and loss of earning capacity consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr L B R Allan | Carbone Lawyers |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff alleges that she suffered a psychiatric injury, as a result of an accusation made by an investigation team appointed by the defendant, that she stole monies from the defendant, which she claims has had consequences for her which meet the relevant statutory test of seriousness.
2 Mr A Ingram QC appeared with Mr L Allen of counsel for the plaintiff. Mr J Batten of counsel appeared for the defendant.
The Plaintiff’s work hours
3 The plaintiff commenced work with the defendant in about 1977 in food services. Initially, she worked the afternoon shift from 5.00pm to 10.00pm, for which she was entitled to penalty rates. Subsequently, she worked from 1.00pm to 9.00pm.
4 In about 2007, the plaintiff alleges that she was asked to take on the role of a supervisor. She worked from 9.00am to 5.30pm. She was informed that her rate of pay would not change from her base rate of pay and her entitlement to penalty rates. A part of the reasoning behind this new arrangement was that the additional sum that the plaintiff was entitled to through penalty rates would accommodate the additional hours that she was then required to work under the new arrangement.
The confrontation
5 An employee of the defendant posted letters anonymously on the noticeboard in a kitchen.[1] The first letter alleged that the plaintiff was receiving penalty rates to which she was not entitled because she did not work hours which would entitle her to them.
[1] Plaintiff’s Court Book (“PCB”) 56 and 57
6 The letters appear to have been a trigger for action then taken by the defendant. Ms Sharon McNulty is the Director Support Services, Monash Health, at the Monash Medical Centre, where the plaintiff was employed. Ms McNulty swore an affidavit on 18 February 2020 describing an investigation undertaken into the allegations in the letters.
7 The defendant sent a letter to the plaintiff dated 14 May 2013 inviting the plaintiff to meet with Ms McNulty and Mr Ryan Wilmott, another employee of the defendant, on 16 May 2013.[2]
[2]Defendant’s Court Book (“DCB”) 23 and 29
8 The plaintiff attended the meeting on 16 May 2013. The plaintiff says that she was asked to sign a document authorising Ms McNulty to undertake an investigation into the allegations of overpayment.[3] Ms McNulty says that the plaintiff was informed of an allegation that she had falsified her timesheets and had been overpaid for work which she did not perform.[4] Ms McNulty and Mr Wilmott recorded the substance of the meeting in a record of interview.[5]
[3]PCB 8
[4]DCB 23
[5]DCB 36-37
9 The plaintiff attended a further meeting with Ms McNulty and Mr Wilmott on 20 May 2013. The plaintiff disagrees with the account given by Ms McNulty in her affidavit as to what occurred at that meeting; however, it is evident that Ms McNulty and Mr Wilmott concluded that the plaintiff had been overpaid. Her employment was terminated for serious and wilful misconduct.[6]
[6]Ms McNulty’s version of what occurred is at DCB 24 and the plaintiff's version is at PCB 8-9
10 Under cross-examination, the defendant put allegations to the plaintiff that she had in effect stolen up to $80,000 by falsely claiming an entitlement to a rate of pay inconsistent with the hours that she was working between 2007 and the date when her employment was terminated. The plaintiff strenuously denied the allegations, repeating that she was entitled to what she was paid through an agreement reached with the defendant through its then Director.
The effect of the confrontation
11 The plaintiff says that immediately upon being told that she had stolen from the defendant, she was told that she owed $80,000 to the defendant. She was asked to resign. She refused, on the basis that she had not done anything wrong. Her phone was taken from her, and presumably that was a work phone. She was told to leave the building, and that if she did not, security would be called, presumably to have her exit the building.[7]
[7]PCB 8-9
12 The plaintiff says that the immediate effect upon her of what occurred on 20 May 2013 is that she felt “immediate shock, confusion, stress, upset and anger”.[8] She could not understand why her employment was terminated and why she was “treated so poorly”.[9] Ms McNulty observed the plaintiff to appear “disappointed and shocked” at the decision to terminate her employment.[10]
[8]PCB 9
[9]PCB 9
[10]DCB 24
The Plaintiff’s medical treatment
13 The defendant submitted that a review of the clinical notes of the plaintiff’s general practitioners demonstrates that there was a significant time lag between the events of 20 May 2013 and the plaintiff seeking medical treatment for a psychiatric injury.
14 Dr Vasudevan has treated the plaintiff as her general practitioner since about 1985.[11] She first saw him on 20 June 2013. The relevant clinical note of that day reads as follows:
“stress
has lost job about one month ago very stressed re- this
discuss.”
[11]PCB 16
15 The parties left it to me to read the subsequent clinical notes.[12] The defendant submitted that the clinical notes demonstrate that the plaintiff did not attend Dr Vasudevan very often complaining of symptoms of a psychiatric nature. On my reading of the clinical notes, she attended on the following days:
[12]Exhibit 4
·November 2014 – “still stressed with unfair dismissal”.
·30 January 2015 – “stress since unfair dismissal, stressed and teary at times … .”
·2 February 2016 – “still very upset re-dismissal wants to take legal adv ….”
·2 February 2017 – “seeking to see Fair work Aus for bullying/underpayment and unfair dismissal relating to events in May 2013 … very upset says did not know of the above service or would have taken action earlier … .”
·7 September 2018 – “still struggle with prev employer re-unpaid entitlements has taken help of solicitor feels at time impulse to go there and threaten physical violence finds hard to sleep and seeks sleeper … .”
·24 September 2018 – “mentally bit more settled sleeping better with Temaze.”
·8 November 2018 – “since discharge from work her mental status deteriorated she has low moods poor sleep and concentration forgetfulness frequently teary has sought legal advice and have told her to ‘put incapacity certificate in’.”
·12 November 2018 – “work injury … On 20 May 2013 was dismissed from work … Trying to get entitlements without success feels bullied and victimised and worsening mental state … Has documented has been having anxiety and depressive sx since then even now very emotional when recounting story … .” (sic)
16 Following 12 November 2018, the plaintiff saw Dr Vasudevan more frequently relevant to her psychiatric injury on 26 November 2018, 29 November 2018, 17 December 2018, 21 December 2018, 31 December 2018, 21 January 2019, 15 February 2019, 19 February 2019, 15 March 2019, 11 April 2019, 26 April 2019, 10 May 2019, 4 July 2019 and 24 September 2019.[13]
[13]I have only referred to consultations where there is a clear reference to the plaintiff suffering a psychiatric condition related to her work. This is to be contrasted with Dr Vasudevan’s report in which he refers to a number of other consultations, some of which were related to the plaintiff's claim for loss of financial entitlements.
17 Dr Vasudevan provided a medical report dated 1 May 2019 in which he summarised his treatment of the plaintiff.[14] He considered that the plaintiff suffered from a situational stress disorder, resulting in anxiety and depression of a significant nature, which he considered was a direct result of the incidents at her workplace in May 2013. He treated her by supportive counselling, mindfulness and relaxation techniques, prescription of Temazepam and referral to Dr Piperoglou, psychiatrist.
[14]PCB 16-18
18 Dr Vasudevan provided a further medical report dated 29 January 2020 in which he essentially confirmed his previously stated opinion.[15] He also referred to the plaintiff seeing Dr Piperoglou and his prescription of Ativan to treat the plaintiff’s anxiety and Valdoxan to treat the plaintiff’s depression.
[15]PCB 19-20
19 According to that report, he last saw her on 14 January 2020, at which time he certified her as being unfit for work until 11 February 2020.
20 The plaintiff also saw Dr Yacoub, general practitioner, as well as Dr Vasudevan.[16] Again, the parties left it to me to read the clinical notes. On my reading of the clinical notes, she attended on the following days:
[16]There is no report from Dr Yacoub. The clinical notes of his clinic are exhibit 5
· 8 October 2013 – “for some time depressed, not suicidal. Counselling offered. Put on pristiq 50mg/day … .”[17]
[17]Pristiq is an antidepressant
· 16 January 2014 – “under stress from work. Counselling offered. Advised to see a psychologist/does not want at this stage.”
· 10 February 2015 – “depressed, anxious not sleeping, not suicidal. put on pristiq 50 mg/day.” (sic)
21 According to the clinical notes, Dr Yacoub last treated the plaintiff on 12 May 2015.
22 The plaintiff saw Dr Piperoglou on 25 March 2019 and 15 April 2019. He provided a report dated 3 May 2019.[18] He appears to have obtained an adequate history of what occurred in May 2013. On examination, he found her to be very emotional, distressed and tearful when she spoke about what occurred in May 2013. On the basis of the history he obtained from the plaintiff and his clinical examination of her, he considered that she was suffering from an Adjustment Disorder with Anxiety and Mild Depression, with these symptoms varying between mild to at times moderate severity.
[18]PCB 21-24
23 Dr Piperoglou prescribed the plaintiff a low dose of Ativan, and a standard dose of Valdoxan. He was unsure how long she would need to remain on that medication. He considered that it might be three to six months and possibly up to twelve months.
24 Dr Piperoglou considered that the plaintiff could not return to work with the defendant. He considered that she would be fit to return to similar duties with a different employer, but noted practical difficulties in her returning to work due to her age, and possibly other factors which he did not explain.
25 In a second brief report dated 7 January 2020,[19] Dr Piperoglou noted that her psychiatric condition had stabilised with a higher dose of Ativan. He added that her psychiatric condition fluctuated when she was reminded of her prior work stresses, and also her upcoming legal issues.
[19]PCB 25
The medico-legal assessments
26 The plaintiff was examined by Dr Kaplan, psychiatrist, on 8 July 2019 and 11 December 2019. He was provided with a number of enclosures on both occasions he examined her. He provided two reports, dated 10 July 2019[20] and 13 December 2019.[21] He appears to have obtained an extensive history of what occurred in May 2013. On the basis of the history he was provided and his clinical examination of the plaintiff, he considered that she was devastated by the events which occurred in May 2013 to the extent that he considered that her condition would be best characterised as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with some associated traumatisation features.
[20]PCB 26-35
[21]PCB 37-41
27 Dr Kaplan considered that because of the long duration of the plaintiff’s psychiatric condition, that her prognosis was likely to be unfavourable and that her psychiatric condition was likely to persist for a prolonged and perhaps indefinite period of time. He added that she was likely to require psychiatric treatment over the next year to two years; she had no capacity to return to work with the defendant; that it was likely to have a serious impact upon her social and domestic life, and that she had realistically no future capacity for employment.
28 The defendant had the plaintiff examined by Associate Professor Varma, psychiatrist, on 10 December 2018 and 31 January 2020. He provided two reports, dated 12 December 2018[22] and 7 February 2020.[23] He appears to have obtained an extensive history of what occurred in May 2013. He obtained a history from the plaintiff – “She told me that she was leading a normal sort of life”. Additionally, he obtained a history that the plaintiff was “doing her normal activities in the house; running the house, doing the usual things”. The plaintiff vehemently denied that she gave that history, and was leading a normal life and doing her normal activities.
[22]DCB 4-10
[23]DCB 13-20
29 Associate Professor Varma considered that the plaintiff had suffered an Adjustment Disorder with Mild Anxiety and Stress secondary to what occurred in May 2013. He considered that her reaction to that event was in excess of what he would have expected such a stressor would cause after seven years. He doubted that what occurred in May 2013 continued to remain a cause of her psychiatric injury. He observed that the history he obtained was consistent with her leading a normal life until the middle of 2018, and that her WorkCover claim was an afterthought.
30 Associate Professor Varma considered that the plaintiff could not return to work with the defendant. He considered her psychiatric condition to be mild, and that the interference with her capacity to work was rather more related to her age and the fact that she had not worked for seven years. He added that her prognosis would be good once the litigation is over.
31 Under cross-examination and re-examination, part of Associate Professor Varma’s history was put to the plaintiff. In particular, whether she told him that she was leading a normal life and that she was doing her normal activities in the house and doing her usual things. The plaintiff vehemently denied that she said that to him, and that it was not true.
The Plaintiff’s evidence
32 The plaintiff described the consequences of the psychiatric injury principally in her first affidavit, as follows:[24]
[24]PCB 4-5 and PCB 14-15
· Constant stress, anxiety and depression.
· Often becoming very emotional, detached and distressed.
· Suffering flashbacks and nightmares relating to her treatment, and being marched out of work by a security guard.
· Feelings of anger, disbelief and disappointment after dedicating her working life (as she saw it) to the defendant.
· Feelings of embarrassment.
· Feelings of estrangement from her family.
· Loss of self-esteem and lowering of self-confidence.
· Impairment of memory and concentration.
· Change from being a very vibrant, outgoing and bubbly person.
· Distrust of people and difficulty opening up to people.
· Feelings of confusion and wondering why the events occurred, accompanied by feelings of hopelessness and having let herself down.
· Loss of libido.
· Irritability, impacting on her relationship with her husband.
· Introversion and feeling different and being a different person.
· Anger at how she was treated.
· Difficulty socialising.
· Suffering constant breakdowns, and I assume that to mean mental breakdowns.
· Insomnia.
· Limited in completing household chores.
· An incapacity to work.
33 English is the plaintiff’s second language. It was clear during cross- examination that the plaintiff had difficulty understanding even relatively simple concepts as attempts were made by the defendant to test her evidence. At other times she appeared to understand and give clear answers. Unfortunately, her evidence was often punctuated by her giving very non- responsive answers, and instead repeating what happened to her and how she reacted to what happened.
34 I do not think that the plaintiff was being evasive nor deliberately non- responsive. After watching her closely and listening to her evidence, I concluded that it was due to her general manner, and the fact that she is a fairly simple woman with little or no sophistication about her.
Conclusion
35 I do not have much doubt that the plaintiff suffered a serious level of shock by what occurred in May 2013. Although, she did not attend for any medical treatment until 20 June 2013 when she saw Dr Vasudevan, it is clear from his clinical note the plaintiff was suffering from stress due to her work, and the reference to her work I accept is what occurred in May 2013.
36 I do not accept that the delay in seeking treatment is significant. Nor do I think the intermittent treatment she resorted to over 2014, 2015 and 2016 is indicative of the plaintiff not suffering from a psychiatric injury. The intermittent nature of the treatment sought by the plaintiff over those years was not something which Dr Vasudevan considered to be significant. He was the plaintiff’s main treating general practitioner over those years. The content of his report makes it very clear that he was aware of the intermittent nature of her treatment. Despite that, he was convinced that the psychiatric condition he diagnosed was related to what occurred in May 2013.
37 Added to the foregoing is the evidence of Dr Yacoub, and then the opinions of Dr Piperoglou, Dr Kaplan, and, to a lesser extent, Associate Professor Varma, all of whom have made the causal connection, although, Associate Professor Varma considered there was ultimately no causal link between the psychiatric condition he diagnosed and the plaintiff’s work. This evidence is a major part of an emerging picture that the plaintiff suffered a psychiatric injury which persists. It is just as well to be reminded that the task of the judge is to consider the whole of the evidence, not just a part of it in isolation.
38 I have concluded that the psychiatric injury as diagnosed by Dr Piperoglou, Dr Kaplan and Associate Professor Varma resulted from what occurred in May 2013. The opinions of Dr Vasudevan, Dr Piperoglou and Dr Kaplan are that the consequences of the psychiatric injury persist, and are likely to persist for the foreseeable future. I reject the defendant’s submission that the psychiatric injury is not permanent for reasons which I think are now plain.
39 I accept the plaintiff’s evidence that she has suffered all the consequences which I have summarised above. I am fortified in reaching that conclusion because that is consistent with the opinions expressed by Dr Vasudevan, Dr Piperoglou and Dr Kaplan, and, to a lesser extent, by Associate Professor Varma. Furthermore, I accept that the plaintiff was endeavouring to give a good account of herself, and as I have already remarked, I saw nothing in her evidence to suggest that she was being evasive or deliberately non- responsive during her oral evidence.
40 My impression of the plaintiff’s evidence is that she is very seriously troubled by the consequences of the psychiatric injury. It has interfered with almost every aspect of her social, domestic and recreational activities which she previously enjoyed. She has required medical treatment for a significant period of time, particularly after 2017, part of which has been the prescription of medication to directly treat the anxiety and depressive components of the psychiatric injury.
41 For the consequences to be severe they must be more than serious to the extent considered in Mobilio v Balliotis.[25] In this case, I think the severity of the plaintiff’s symptoms, the severity of the consequences for the plaintiff and the extent to which those symptoms and consequences inhibit the plaintiff’s life, persuade me that the consequences of the psychiatric injury are severe, both with respect to pain and suffering and loss of earning capacity. I note that in assessing the severity of the psychiatric injury, some of the consequences claimed by the plaintiff may in fact be symptoms, but I take from what the High Court observed in Transport Accident Commission v Katanas,[26] that what might be characterised as a symptom may also be relevant as a consequence context of a psychiatric injury.
[25] [1998] 3 VR 833, and also Noonan v State of Victoria [2013] VSCA 289
[26][2017] HCA 32
42 In relation to her loss of earning capacity, I think the severity of the plaintiff’s symptoms and consequences are such that I accept the evidence of Dr Vasudevan that the plaintiff is incapacitated for all employment, including suitable employment. According to Dr Piperoglou, the plaintiff has a capacity for alternative employment, and that appears to be also the opinion of Associate Professor Varma; however, that is not only in contrast to the opinion of Dr Vasudevan, but also the opinion of Dr Kaplan.
43 I have resolved the contrast in the opinions of the medical practitioners to whom I have just referred as follows – accepting, as I do unreservedly, the evidence of the plaintiff, then it is difficult to see how she could possibly work if she is enduring those symptoms and consequences of her psychiatric injury. I think the opinions of Dr Vasudevan and Dr Kaplan are more compelling than the opinions which suggest that the plaintiff has some capacity for alternative employment.
44 My reasons for reaching that conclusion are essentially as follows – Dr Vasudevan has treated the plaintiff for a significant period of time, and I accept, therefore, is in a very good position to make an overall assessment of the psychiatric injury and the way in which it affects the plaintiff both in terms of pain and suffering and loss of earning capacity. Dr Piperoglou at first considered that the plaintiff had the capacity for alternative employment, but in his second report, it is clear that he considered that the plaintiff needed an increase in her medication, and I infer because he concluded that her condition was somewhat worse than stated in his first report. However, he did not offer an opinion relevant to whether that worsening condition impinged upon her capacity to undertake alternative employment. I do not accept the opinion of Associate Professor Varma because it is based on a history which the plaintiff denies she gave him relevant to her capacity to cope on a daily basis, and it is out of keeping with the preponderance of the medical evidence that the symptoms and consequences of the psychiatric injury persist. That then brings me to Dr Kaplan, whose opinion is consistent with the opinion of Dr Vasudevan, and also Dr Piperoglou, except relevant to whether the plaintiff can return to alternative employment.
45 It is for these reasons that I will order that the plaintiff be given leave to bring a proceeding at common law relevant to both pain and suffering and loss of earning capacity consequences of the psychiatric injury. I have reached this conclusion by paying regard to the comparison with like impairments which I am obliged to do.
The termination of employment
46 The plaintiff commenced a proceeding in the Federal Circuit Court of Australia on 17 May 2019 to recover her termination entitlements. The defendant filed a cross claim on 23 August 2019 seeking to recover overpayments made to the plaintiff. Both proceedings were resolved and reduced into an agreement of settlement and release executed by the plaintiff and the defendant.[27]
[27]Exhibit 2
47 At the commencement of the proceeding, I thought that the defendant intended to have me determine whether the plaintiff had in fact been overpaid, and whether that in some way was a bar to the plaintiff succeeding in her application for serious injury. The confusion evaporated on the second day of the trial when both parties occupied the position that whether the plaintiff was overpaid or not is really part of a damages trial, not part of my enquiry into whether the plaintiff has suffered a serious injury and is entitled to leave to bring a proceeding.
48 I am not sure why the agreement of settlement and release was tendered except perhaps to partly establish that the plaintiff was more preoccupied with the recovery of her termination entitlements, and not the psychiatric injury. In any event, I refer to it because the defendant insisted that it form part of the evidence which I was to consider.
49 I see nothing in the plaintiff bringing that proceeding in the Federal Circuit Court as being inconsistent with having suffered a serious injury.
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