Mitchell v MidCoast Council
[2024] NSWPIC 584
•18 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mitchell v MidCoast Council [2024] NSWPIC 584 |
| APPLICANT: | Timothy Mitchell |
| RESPONDENT: | MidCoast Council |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 18 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Expedited assessment proceedings; work capacity dispute as to whether worker had capacity for suitable employment; surveillance reports and video showed applicant riding a lawn mower and attending a child’s birthday party; whether Commission could interpret surveillance evidence; weight that could be given to surveillance evidence; consideration of the details provided in medical information; Held – applicant had no current work capacity. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has no current work capacity. 2. The respondent is to pay the applicant weekly compensation at the rate of $951.03 per week pursuant to s 37 of the Workers Compensation Act 1987 from 24 September 2024 to date and continuing. 3. The above amount is to be indexed from time to time in accordance with the legislation. 4. The respondent is to have credit for any amounts paid in accordance with the stay provisions in s 289B of the Workplace Injury Management and Workers Compensation Act 1998. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The issue in dispute in this case is, at its core, a straightforward one, limited in scope. The proceedings in this matter were part of the Personal Injury Commission’s (Commission) expedited assessment pathway, intended to resolve issues such as arise in this case in an efficient and straightforward way. In spite of that, it has occupied significant resources, and involved highly contested and at times combative hearings over two separate dates. A matter that should have been resolved quickly and cost effectively has taken up close to a day in hearing time and additional time spent in reviewing surveillance footage.
All the while, the applicant in these proceedings, Mr Mitchell, sat quietly, with his camera off and his microphone muted whilst the intimate details of his personal life and injuries were discussed. Accusations were made about his capacity tending towards whether he was truthful. This, on top of the significant psychological distress he is currently in, are an unfortunate side effect of a psychological injury caused by MidCoast Council (the respondent).
Mr Mitchell is more than just the claim number assigned to him by the insurer. Mr Mitchell’s injury, suffered in the course of his employment with the respondent, is more than a legal concept. The effects of that injury are more than a line on a ledger.
ISSUES FOR DETERMINATION
The issue in this case is narrow and is determined by the s 78 notice issued by the respondent’s insurer, acting as a claims manager for the self-insured respondent. The issue is whether Mr Mitchell has a current work capacity, and if so to what extent. The applicant’s position is that he has no current work capacity. The respondent’s position is that he has capacity to earn $642 per week, working for 20 hours per week in suitable employment.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
As indicated, this matter has occupied significant resources. There were two hearings in this matter; the first expedited assessment video conference on 17 September 2024, which involved extensive preliminary issues of a procedural nature, including an application to cross-examine the worker. That application was rejected on that occasion and reasons were provided orally.
There was also a dispute as to the admission of an Application to Admit Late Documents lodged by the applicant, containing a statement addressing surveillance material obtained by the respondent. This was opposed by the respondent, but was ultimately resolved in a compromise (the only compromise reached during the proceedings) that the statement could be admitted without objection, if the full surveillance footage was admitted without objection. Accordingly, I made that order.
As the matter was part-heard and the substance of the dispute had not been addressed, a second video conference occurred on 26 September 2024. Prior to the conference, the applicant had lodged an Application to Admit Late Documents attaching a report of a treating psychiatrist that he had only very recently attended. The report was dated 23 September 2024. The respondent objected to the admission of that document into the proceedings. I determined that the document should be admitted and provided oral reasons during the course of the conference.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application for Expedited Assesssment (Application) and attached documents;
(b) Reply to Application for Expedited Assessment and attached documents;
(c) an Application to Admit Late Documents, attaching a statement, lodged by the applicant on 16 September 2024;
(d) an Application to Admit Late Documents, attaching four surveillance videos taken over three days, lodged by the respondent on 20 September 2024, and
(e) an Application to Admit Late Documents, attaching a treating psychiatrist report of Dr Renzenbrink, lodged by the applicant on 25 September 2024.
A large volume of documentary material has been filed, given the nature of the issues in dispute. During the course of submissions the parties took me to various parts of that evidence that they said were relevant. I have considered all of the evidence filed in detail and do not intend to repeat it in great detail, but will provide a brief summary here, and during the course of my reasons refer to the critical details.
The work capacity decision
These proceedings have been commenced following a work capacity decision issued by the respondent’s insurer dated 24 June 2024. That decision found that Mr Mitchell was capable of working for 20 hours per week in suitable employment, to earn $642 per week, reducing compensation payments to $309.03 per week. The decision was to take effect from 24 September 2024.
Over the course of seven pages (which may not constitute a “concise and readily understandable statement of the reason for the insurer’s decision”, per s 79 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)), the insurer determined that the applicant could work as a product assembler. The decision also referred to the roles of appointment setter and packer. There was some dispute about the nature of the decision that I will deal with below.
The Medical Assessment Certificate
In separate proceedings, Mr Mitchell made a claim for lump sum compensation and was assessed by a Medical Assessor. In a Medical Assessment Certificate dated 19 July 2024, Dr Michael Hong found that the applicant had not reached maximum medical improvement.
The details provided in medical information
Mr Mitchell has been assessed by a variety of doctors, acting in their capacity as treating specialists and as independent medical experts.
Dr Teoh assessed the applicant providing a report dated 20 October 2023, mainly for the purposes of the lump sum compensation claim. He found 22% whole person impairment, and provided an assessment of class 5 for employability, opining that Mr Mitchell was not fit for work.
Dr Sendah provides various treatment reports. He is a psychologist and not a medical doctor, and has provided psychological therapy to Mr Mitchell for a number of years, first providing a report dated 25 November 2022, and further reports throughout the history of the claim, most recently dated 21 September 2023.
It appears that Mr Mitchell ceased seeing Dr Sendah and began attending on Andrea Pejic, also a psychologist. “Case documents”, which are the notes of attendances, are attached to the Application from the period commencing on 25 July 2024 until 22 August 2024.
There are extensive clinical notes produced from Biripi Aboriginal Corporation Medical Centre, where Mr Mitchell attends to see his general practitioner (which appears to be currently Dr David Holford, and in the past Dr Partha Baruah).
A report of Dr Goodison dated 13 March 2024 is attached to the Application. The report was requested by TAL Life Limited. It is understood that the purpose of the report was for a total and permanent disability claim made on the applicant’s life insurance policy. Dr Goodison takes a consistent history of the onset of injury. She diagnoses Mr Mitchell as suffering from a severe major depressive episode. She opines that he has no capacity to undertake work in his old occupation or any occupation due to the severity of his mental health symptoms. She suggests a poor short and longer-term prognosis.
Dr Renzebrink provides a report dated 23 September 2024. Dr Renzebrink is a treating psychiatrist who only very recently began treating Mr Mitchell. She provides a diagnosis of persistent depressive disorder with anxious distress and a persistent major depressive episode. Despite minor improvement in some symptoms over the last month, due to treatment with duloxetine, Dr Renzebrink opines that Mr Mitchell is not fit to return to work in any capacity at present.
Dr Jacobson provides reports for the respondent on 14 June 2023, 15 January 2024, 5 March 2024 and 20 May 2024, and her opinion as to Mr Mitchell’s capacity, along with the surveillance material is at the centre of the dispute in this matter. In the report dated 14 June 2023, Dr Jacobson opined that Mr Mitchell was “not currently fit to work due to ongoing depression and interpersonal anxiety”. She suggested that this be reassessed in approximately three months.
In the report dated 15 January 2024, Dr Jacobson’s opinion remained that Mr Mitchell was not able to work: “He could not work part time. He could not work in another role or location either.” That report assessed whole person impairment and provided a rating of 5 for employability (no capacity).
Dr Jacobson was then provided with the surveillance reports dated 12 December 2023 and 13 February 2024. In a report dated 5 March 2024, she notes that the history provided is not consistent with surveillance material, and there was a death of a family member (potentially a grandfather, uncle or baby). Dr Jacobson then revised her previous assessment. In relation to capacity, it was suggested that Mr Mitchell had capacity for 20 hours per week, being class 3 in relation to the psychiatric impairment rating scale of employability.
In a further report dated 20 May 2024, Dr Jacobson refers to a surveillance report dated 15 March 2024 and an earning capacity assessment report dated 26 April 2024, as well bank records and an analysis of same prepared by the respondent’s lawyers. Dr Jacobson notes that the further surveillance evidence is generally consistent with her previous report dated 5 March 2024, although her assessment of employability was further revised down to class 2, and accepted the jobs listed in the earning capacity assessment.
The surveillance material
The respondent relies on three surveillance reports dated 12 December 2023, 13 February 2024, and 15 March 2024. The respondent also sought leave to rely on the original video footage obtained on 10 and 11 December 2023, 5 February 2024, and 9 March 2024. As set out above, this material was sought to be tendered on a compromise basis, in response to the applicant’s statement addressing the surveillance reports. Interestingly, during the course of submissions only the applicant’s counsel addressed the surveillance video, with the respondent’s counsel going as far as to suggest I was not able to interpret it. I have reviewed the entirety of the footage which is in total over three hours long.
I note, in particular to the footage taken on 9 March 2024, was taken at a birthday party for Mr Mitchell’s young son. The State Insurance Regulatory Authority issues various standards relating to insurer conduct. Standard 25 concerns surveillance and acknowledges that “surveillance plays a small but important role in the workers compensation scheme”. Of particular relevance is S25.2, which contains the following:
“…the surveillance is undertaken in a way that demonstrates sensitivity to the privacy rights of children, takes reasonable action to avoid video surveillance of children, and where possible does not show images of children in reports and recordings”.
Both the relevant surveillance report and the footage obtained on 9 March 2024 contain significant images of children. Given that the footage was obtained at a child’s birthday party, it would be difficult to see how reasonable action was taken or could have been taken to avoid video surveillance of children.
The applicant’s statements
Attached to the Application is a statement dated 7 March 2024. This statement sets out the history of injury, including racism, bullying and harassment suffered in the employ of the respondent. The applicant provides a history of functioning prior to the injury compared with his functioning at the time of the statement.
I also admitted into the proceedings a further statement of the applicant dated 16 September 2024, which addressed the surveillance reports relied upon by the respondent. In that statement, the applicant explains the conduct depicted in the report.
Oral evidence
An application to cross examine the worker was made and declined. Oral reasons were provided for that procedural decision.
SUBMSISIONS
The parties provided extensive submissions during the hearing. I do not intend to repeat those submissions as they were recorded. I will provide a brief summary.
Applicant’s submissions
The applicant commenced submission by setting out the work capacity decision currently in dispute, and submitted that the respondent is limited in its argument to the position of a product assembler, as that is the role identified in the notice.
The applicant spent some time going through the surveillance videos and what is shown in each. The applicant submits that sometimes you have to do things you don’t want to do – for example, when he is at his son’s birthday party, and that I would not accept that the surveillance provides evidence of a capacity to work for 20 hours per week.
The applicant made submissions as to the state of mind of Mr Mitchell, that when he is at appointments with his various treating practitioners his true condition reveals itself, and that condition has remained throughout. Reference was made to tearfulness and crying reported to Drs Hong, Goodison, Sendah, Renzenbrink and Teoh.
The applicant pointed out that at first Dr Jacobson was supportive of the applicant, and then the opinion changed after seeing the surveillance report, which was in error. The applicant notes that there are errors in the report, including that it was not Mr Mitchell who attended the racecourse alone, and he did not lose a child. Dr Jacobson has made a substantial leap into something that is not permissible because she has taken incorrect histories.
The observations in the surveillance material are that Mr Mitchell does not engage, he’s not smiling, not carrying on well. The applicant’s statement deals with the surveillance and is consistent with what the doctors are saying, that he has not current capacity.
Respondent’s submissions
The respondent highlighted that the surveillance material was a key piece of evidence and the applicant has sought to downplay the significance of it. The respondent submits that the Commission should approach the surveillance, in particular the video, with caution, as to not give to much credit to a lawyer’s interpretation of it. The respondent referred to Goode v Angland [2017] NSWCA 311 (Goode) and Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 (Al Kammessy).
The respondent relies on the reports of Dr Jacobson, noting that she is the only person that has seen the surveillance reports and has provided an opinion in relation to capacity. This was said to be an expertise that lawyers don’t possess. Reference was made to online study, which was submitted is hardly consistent with a lack of concentration skills. The applicant reports that he doesn’t feel that he can work, but that is the applicant’s opinion. It was also noted that the applicant’s general practitioner did not support his claim for total and permanent disability (TPD) benefits.
The respondent also relied on the bank statements produced and attached to the Reply, submitting that they show a pattern of functioning in the community that is not consistent with the applicant’s report of functioning.
The respondent referred to the other treating opinions including the reports of Dr Goodison and Sendah, as well as the Medical Assessment Certificate of Dr Hong.
The respondent also attacked the applicant’s statement in a number of ways as being inconsistent with the surveillance evidence. This included a report of struggling to cook, which is inconsistent with using the barbeque at his son’s birthday, and the lack of lawn mowing which is inconsistent with mowing the lawn seen on surveillance.
The respondent’s contention is that the Commission could consider the three jobs identified in the s 78 notice.
The only person to have considered the surveillance and peripheral material is Dr Jacobson, and the other medical opinions have thus not been made in a fair climate.
Applicant in response
The applicant notes that the respondent’s case seems to be that the only competent person that can provide comment on capacity is Dr Jacobson. The applicant submits that I have all of the evidence before me and I would be abrogating my duties if I ignored all of that evidence to just accept the opinion of Dr Jacobson. It was also noted that there is no evidence that Dr Jacobson has witnessed the footage rather than having read the report, and I am entitled to draw conclusions as I see fit.
In terms of the repeated purchases, the applicant referred to Cifala v NF Importers Pty Ltd [2024] NSWPIC 109 (Cifala).
The applicant notes that there is a fine balance between a submission that the applicant is lying and that he does have some incapacity.
The reality is that the applicant’s mental state, regardless of the minor inconsistencies he gave to medical practitioners, is of complaints of suicidal ideation, resentment and anger after a work injury – this would inform the decision as to whether he has a capacity to work meaningfully with colleagues. It was also noted that he attempted to return to work and failed.
Respondent’s further submissions
The respondent referred to Cifala and noted each case turned on its own facts.
The insurance officer instructing counsel raised a further issue during the applicant’s submissions in response which the respondent sought to raise and was granted. Further reference was made to Borg v Ramsay Health Care [2014] NSWSC 37, which had previously been addressed concerning the applicant to cross examine the worker. It was submitted that there was a material change in the tenor of the applicant’s reports to his medical practitioners following the surveillance.
In respect of the Medical Assessment Certificate it was noted that a finding of not maximum medical improvement (MMI) is not inconsistent with a finding of incapacity.
Applicant in response
The applicant briefly noted that some of the matters observed in the surveillance have previously been reported to doctors. For example, he tells Dr Jacobson that he attends the gym which is not inconsistent with the surveillance.
FINDINGS AND REASONS
Before considering the actual substance of the dispute in this case, which is narrow, it is worth establishing the scope of what might be considered. First, contrary to the applicant’s submissions, I am satisfied that I am able to consider the three roles identified by the respondent, being product assembler, appointment setter and packer. The three roles are identified and relied upon in the s 78 notice dated 24 June 2024. Whilst the role of product assembler was chosen as part of the assessment of ability to earn, that is by nature of the requirement to calculate an entitlement under the legislation. The respondent has chosen to rely on one figure for the purposes of calculating payments, but has relied on all three for the purpose of the dispute as to capacity. This, in my view, is open.
The second issue is what to do with the surveillance material, and particularly the video evidence. The respondent submitted that I was not able to interpret it and that was a matter for expert evidence. The respondent, in particular, relied on Goode, Al Kammessy, and Borg. Those cases are factually distinct, and were litigated in a different forum, from the issues that must be determined before me. Firstly, the Commission, like the Workers Compensation Commission before it, is a specialist tribunal that is not bound by the rules of evidence and may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter permits (s 43 of the Personal Injury Commission Act 2020).
Secondly, the facts in those cases are different from those present in this matter. Goode involved a horse racing accident where one of the questions involved the use of photographic and video evidence of the horse race in which the accident occurred. The issue was whether there had been a breach of duty in the riding of another horse causing the accident.
Al Kamessy involved a slip and fall claim, in which the video evidence concerned whether there was water or the floor at the site of the fall. Both cases provide warnings on the use of video surveillance and the importance of expert evidence interpreting what is depicted. In the present case, those warnings are reasonably made. I do not intend to place great reliance on the footage depicted in the surveillance video. I do not think it particularly relevant to whether the applicant has a present incapacity arising from a work injury, an injury that was psychiatric in nature. The depictions of the conduct undertaken by the applicant in periods that predate the decision made in the s 78 notice by a significant period is really of little relevance and weight.
Whilst Dr Jacobson has considered those reports, that does not mean I am bound by the opinion of Dr Jacobson. I must consider the relevant factors set out in the definition of suitable employment in s 32A of the Workers Compensation Act 1987 (1987 Act), but in particular “the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B)”.
Borg concerned a fall from an operating table, and the extent of incapacity as a result of those injuries. That case concerned physical injuries whereby Mr Borg demonstrated less disability on video than reported, involving questions of the credibility of Mr Borg. This is the only case that has some resemblance to the issues raised here, as it considers capacity (not the accident or injurious event). However, there is a stark difference between observations of a person’s physical capacity versus a psychological capacity, caused by a disease of the mind.
Having reviewed the surveillance reports and the videos, I do not think they add much in the way of reliable evidence going to “the nature of the worker’s incapacity”. Further, the respondent’s submission that I cannot interpret the evidence, either in the surveillance report or video, is not accepted. The question of incapacity is not purely a medical one. It is a question of fact, and requires having regard to the totality of the evidence (McCabe Terrill Lawyers v Lavery [2009] NSWWCCPD 46 at [70]). The same principle applies to the question raised in a work capacity dispute.
It would be patently unfair, and incorrect at law, to consider that the only person that can comment on the applicant’s capacity is Dr Jacobson because she considered the surveillance reports. For one thing, she has not considered Mr Mitchell’s explanation of the activities he was observed performing.
In fact the only person that has considered the surveillance material and given Mr Mitchell an opportunity to respond to that material is Dr Hong. The Medical Assessment Certificate he issued is binding in only one aspect – that Mr Mitchell has not reached MMI. That is not of great relevance to the question before me, but I would have regard to the fact that Dr Hong made no conclusions about inconsistency, only stating “I have noted submitted inconsistencies regarding surveillance material”. He does not suggest that Mr Mitchell is exaggerating.
The question then is whether the applicant has a current work capacity or no current work capacity. These clauses are defined in cl 9 of Sch 3 to the 1987 Act:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The respondent’s s 78 notice found that the applicant had a current work capacity of 20 hours per week in suitable employment. The applicant submits that he has no current work capacity.
There are competing opinions as to the point, which I have discussed above. Dr Jacobson supports the conclusion of 20 hours per week. This was based on a review of the surveillance material, with an initial change of opinion (from no capacity) on 5 March 2024. I have some difficulties accepting that report in that it relies on evidence that has not been established, firstly that he attended the racecourse alone, and secondly that there had been a death of a child of Mr Mitchell’s. These two factors undermine the opinion of Dr Jacobson. It should also be recognised that Dr Jacobson’s opinion is somewhat measured. She provides:
“The surveillance evidence and documentation suggest that he can work to some degree. However they do not really tease out whether or not, in fact he has ongoing significant anxiety in a workplace. I would suggest that as a compromise, he could be considered capable to work at least 20 hours per week at this time and that it should be re-assessed in 6 months.”
Given the issue in question is whether Mr Mitchell has a present inability to return to work in suitable employment, it is entirely relevant to determine whether he “has an ongoing significant anxiety in a workplace”. The compromise position postulated is therefore not really a position at all, as it does not consider the relevant question, or give proper consideration to the definition of suitable employment. It appears to have been made more on the basis that Mr Mitchell is exaggerating and therefore his capacity is greater, which in my view is both incorrect and not consistent with the appropriate question asked in the legislation.
Dr Jacobson provides a further report dated 20 May 2024. I would firstly observe that there is no evidence in this report that Dr Jacobson viewed the surveillance footage as opposed to the report dated 15 March 2024. The first page of the report includes the documentation reviewed, noting: “Further surveillance report dated 15 March 2024 together with a link containing the relevant footage”. There is no comment in the body of that report that the doctor reviewed the actual footage, but rather was provided with a link to the footage. I am unable to conclude that she has reviewed it, but would err on the side that she has only viewed the further surveillance report. There is no discussion of how Mr Mitchell appeared in the video and the summary provided is very similar to the summary observations provided in the report, as opposed to being an independent summary of the observations.
Further, Dr Jacobson refers to the bank statements (including “a review of the bank statements provided by the lawyers”). Little to no weight can be given to the bank records. They appear in the Reply and cover a broad period. The first is addressed to Mr Mitchell and lists the account details as Timothy Mitchell with a BSB and account provided. There are a further series of records that reflect the same. However, there are also records addressed to the applicant and his wife, which match the same BSB and account number, and name both parties as account holders. Absent evidence verifying that Mr Mitchell was the person who made the purchases the respondent relied upon (submitting that there was a pattern of spending that suggested a high level of functioning in the community), I cannot accept that evidence. Likewise, this reduces the weight that I can give to Dr Jacobson’s opinion, in that she has likely to have given inappropriate consideration to matters that are not verified. Further, it is not clear what was contained in the “review of the bank statements provided by the lawyers”. I do not have that review before me.
Dr Jacobson’s report dated 20 May 2024 records that “the further surveillance material is generally consistent with my recent supplementary report dated 5th of March 2024”. In that report, she expresses the opinion that the surveillance evidence “does not really tease out whether or not, in fact he has ongoing significant anxiety in a workplace”. This, in my view, is the critical question in relation to incapacity. This has not been explained by Dr Jacobson in the further report. The surveillance evidence does not show Mr Mitchell working, it shows him mowing lawns at his own house, shopping with the assistance of his wife (and on one occasion making two purchases by himself) and cooking on a barbeque at his son’s birthday. None of that evidence shows a great degree of current work capacity, that is an ability to work in suitable employment.
Regardless of my views of the weight that can be given to Dr Jacobson’s opinion, I must have regard to the details provided in medical information. That includes Drs Goodison, Sendah, Teoh and Rezenbrink.
The most recent of those reports is Dr Rezenbrink. This is dated 23 September 2024. There is evidence that Mr Mitchell has had difficulty obtaining access to psychiatric services. This is part of the reason Dr Hong concluded that Mr Mitchell had not reached MMI. The attendance with Dr Rezenbrink is the first such attendance, and in part explains the lateness of the report, which was admitted over the respondent’s objection.
Dr Rezenbrink opines that Mr Mitchell “is not fit to return to work in any capacity at present”. She records on mental state examination that he was “frequently tearful throughout the interview”. There is also record of frequent episodes of distress associated with increased intensity of suicidal thoughts. During submissions the applicant pointed out the consistent tearfulness expressed throughout the medical opinions. This is consistent with that reported by Dr Rezenbrink.
The applicant’s suicidal ideology is also supported in the “case documents” of Andrea Pejic, who is a treating psychologist. In a note dated 25 July 2024, it is recorded
“feel like taking my life but can’t leave my son (3 YO)
If I didn’t have son- I would take my life
Suicidal ideation – all the time initially”.On 31 July 2024, further reference is made to suicide: “Did suicide safety -plan together today- to send to client and GP – will attach separately”. A record on 15 August 2024 refers to “Worried I’ll smash everything up, get in the car and take my life”, as well as voices telling Mr Mitchell to self-harm. A note on 22 August 2024 records “Suicidal thoughts? All the time”.
These are very recent notes that paint a picture of a man struggling to cope with day-to-day functioning, in severe distress, with ongoing suicidal ideation. I cannot see how that is consistent with a capacity for employment of 20 hours per week. I do not accept that the applicant has been exaggerating his symptoms to the point where he would consistently report suicidal tendencies and have in place a suicide safety plan.
Dr Teoh, who provides an independent medical expert report, provides that Mr Mitchell is not fit to work. Dr Goodison, who provides a report for the purpose of the total and permanent disability claim, notes suicidal ideation and that “He broke down and began to cry at this point in the interview”. She opines that “He currently has no capacity to undertake work in his old occupation or any occupation due to the severity of his mental health symptoms”. The short- and longer-term prognosis was said to be poor.
Dr Sendah, in a report dated 10 August 2023, sets out the significant issues Mr Mitchell has with re-engaging with employment responsibilities. She records:
“Mr Mitchell is not able to take on employment responsibilities. His symptoms are unremitting at this stage. Despite demonstrating a willingness to work, his mental health make it unlikely that he would be effective in carrying out related duties. In that regard, employment would be short-lived and unsustainable. Future prospects are dependent on adjustment and recovery from the identified mental health problems.”
The most recent Certificate of Capacity, which covers the period up until 4 May 2024, certifies that Mr Mitchell has no capacity for any employment, but “has capacity for 8 hours per week for study only”.
The overwhelming evidence in this case is that Mr Mitchell is still greatly incapacitated by his accepted work injury. This is countered by some surveillance material, taken at the end of last year and into the first few months of this year, that show him participating in a small number of activities, including shopping, riding a lawn mower, and cooking at a barbeque for his son’s birthday. That surveillance material was presented to the respondent’s independent medical expert who was satisfied that he was exaggerating his symptoms and could work for 20 hours per week.
I prefer the evidence of the treating practitioners, including the recent report of Dr Rezenbrink, who find that Mr Mitchell has no work capacity.
The respondent’s submissions ignore the reality of the injury suffered by Mr Mitchell and the nature of his incapacity. Presentation, symptoms, and severity of symptoms can fluctuate from time to time. At times Mr Mitchell may be able to function at a higher level. The only evidence of this occurring is contained in the surveillance material at a barbeque and when Mr Mitchell was mowing a lawn. The construction by the respondent of “absolute statements” that once made, can never be contraindicated, has no basis in a medical condition which can fluctuate over time. A record of a history given to Dr Goodison in March 2024 that “He stopped going to the gym, stopped fishing or going places or engaging in his usual activities” is not contradicted by surveillance footage of a singular attendance at gym, for a period of just over 15 minutes in December 2023.
Accordingly, I will make an award for ongoing weekly payments from the date of the decision.
I note that due to the operation of the stay provisions contained in s 289B of the 1998 Act, the insurer was obliged to continue paying Mr Mitchell up until his proceedings in the Commission resolved. I presume that that was the case. I will make an award from the date the work capacity decision was said to take effect, with a credit to be made to the insurer for payments made following that date and including during the stay period.
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