Mutch v Nillumbik Shire Council
[2010] VCC 1984
•13 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02029
| CHERYL MUTCH | Plaintiff |
| v | |
| NILLUMBIK SHIRE COUNCIL | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 and 7 December 2010 |
| DATE OF JUDGMENT: | 13 December 2010 |
| CASE MAY BE CITED AS: | Mutch v Nillumbik Shire Council |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1984 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – psychological injury – causation – whether consequences meet the “severe” test – permanency.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Riordan with | Clark Toop & Taylor |
| Mr A D Ingram | ||
| For the Defendant | Mr P D Elliott QC with | Thomsons Lawyers |
| Mr T J Ryan | ||
| HIS HONOUR: |
1 In 1994, the plaintiff commenced work with her husband at Edendale Farm, a community farm facility in Eltham owned by the defendant Council. The plaintiff was involved in the running of the farm including the creation and management of a native plant nursery. From approximately 2003, the plaintiff fell into disagreement with officers of the defendant relating to her and her husband’s work duties, the management of the farm, the level of assistance provided and the expectation of those Council officers as to the work the plaintiff was capable of undertaking. She further claims she was bullied and confronted by, in particular, one Council officer.
2 She alleges as a result of this treatment, she developed a significant psychological disorder described by most medical practitioners as a Major Depressive Disorder which has resulted in significant restriction in her domestic, recreational and social activities. She claims her work capacity is significantly affected, and she now works seven-and-a-half hours, or one shift, per week as a Division 1 nurse.
3 Mr Riordan, on behalf of the plaintiff, submitted the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder and thus this application is brought under subsection (c) of the definition of “serious injury” contained in s.134AB(37) of the Accident Compensation Act (“the Act”) and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the psychological disorder may be fairly described as “more than serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”, the criterion required in respect of physical injury.
5 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible psychological disorders.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without injury” earnings in that part of the three-year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
7 Helpfully, the parties agreed that the figure for first part of the formula, that is, the plaintiff’s “without injury” earning capacity, is $42,323.00, or $813.90 gross per week. Therefore, in accordance with the formula prescribed by s.134AB(38)(f), if I were to find the plaintiff had an earning capacity of more than $25,393.00 gross per year or $488.34 gross per week, the plaintiff’s claim, in respect of pecuniary loss damages, would fail.
8 The plaintiff was the only witness to be called to give evidence and be cross- examined. In addition, medical reports, affidavits of the plaintiff, and various wage records were tendered into evidence. I have read all the tendered material.
9 Mr Elliott, on behalf of the defendant, stated that his client’s response was:
•
There would be a challenge to the causative relationship between the plaintiff’s psychological condition, whatever that was, and her employment.
•
The consequences of the psychological condition did not meet the “severe” test required by the legislation and the authorities.
•
The Court could not be satisfied that the plaintiff’s condition was permanent.
Relevant Background
10 The plaintiff is now fifty-eight years of age, is married with three adult children. She was born in Ararat on a family farm and was educated to Year 11. She trained as a nurse between 1970 and 1973 and then worked in that capacity in New South Wales. From 1978, she worked as a casual seasonal worker on farming and horse properties and met her husband on his family’s property. They purchased a property in New South Wales and ran it as a farm for approximately twelve years.
11 In 1992, the family moved to Woodend, Victoria, seeking treatment for their dyslexic son.
12 In 1994, the plaintiff’s husband obtained employment with the Eltham Shire Council, subsequently the Nillumbik Council, as a live-in manager at Edendale Farm, a community farm facility near Eltham. The plaintiff had a number of jobs, but went to work at the farm in 1996, becoming a permanent employee in 2000. The couple worked hard to bring the farm, and the animals, into an appropriate functioning condition and eventually the range of activities provided to the local community broadened. There was a commercial aspect to the running of the farm, including selling of produce, visits from local schoolchildren and as a tourist point. Eventually the plaintiff created a native plant nursery producing something in the order of 30,000 plants per year for use in land care programs.
13 The plaintiff described the work as demanding and said that she and her husband obtained little relief by way of holidays and general assistance from the defendant’s officers.
14 As at 2003, she was in good health, enjoyed her work, particularly in the propagation of native plants, was a keen gardener and actively involved in the necessary domestic activities and tasks in looking after her family.
The Psychological Injury and its Consequences
15 In 2000, the plaintiff’s employment on Edendale Farm became a permanent position. In 2003, there was a significant increase in her workload. She claims there were major building projects undertaken at the farm which required long hours of work. The defendant provided casual staff who did not have a sufficient degree of skill to provide adequate assistance. Her tasks in developing and managing the nursery were extensive. There were various special events run at the farm which required extensive preparation. On occasions the plaintiff and her husband worked to 8.00 pm. She said the response from officers of the defendant to these problems was inadequate. There was a lack of co-operation from the defendant.
16 By April 2003, the plaintiff says she became tearful, lethargic and her sleep and concentration were affected. She and her husband had a two-week holiday in January 2004, and she expected that would make her feel better. However, her symptoms returned in the early part of 2004. At that time an assistant resigned, placing more pressure upon herself and her husband. Both she and her husband felt there was little appreciation for the long hours of work involved in running the farm.
17 In February 2004, the plaintiff went to her general practitioner, Dr Penny Gaskell. She described symptoms of tearfulness, low mood, poor concentration and memory, lethargy and poor sleep.[1] Dr Gaskell diagnosed a depressive illness and treated her with counselling. The prospect of anti- depressant medication was raised.
[1] Plaintiff’s Court Book (“PCB”) 86
18 She had a period of six weeks off work and saw a psychologist on two occasions. At this time, her husband was also diagnosed with a depressive illness.
19 A return to work plan commenced on 1 April 2004, the plaintiff working normal duties, on modified hours, three days per week. This was subsequently increased to four days per week. There was some gradual improvement in her symptoms.
20 In 2004, there was further conflict with the officers of the defendant. The plaintiff and her husband attended meetings with a Council supervisor and both felt criticised for their work. Her husband was distressed and certified as unfit for work by Dr Gaskell.
21 By June 2004, her symptoms had become worse and at that time they received a letter from the defendant that they would be required to leave the farm. At that time they moved to their present house in Eltham.
22 In September 2004, the plaintiff’s emotional symptoms were aggravated when she received a “formal warning” from an officer of the defendant for an alleged breach of employee code of conduct in relation to providing keys to farm employees. She suffered a panic attack at that time and alleges she felt suicidal. She was off work for a period of three to four weeks and returned in November 2004, working one to two days per week. During this period, she claims her symptoms persisted. She was referred to a psychologist, Ms Bridget Curran, in late 2004 or early 2005, and that treatment has persisted to the present time. In March 2005, she was made redundant by the Shire. Her symptoms of anxiety, sleep disturbance, tearfulness, irritability and poor memory and concentration, persisted.
23 In April 2005, she commenced a retraining course as a nurse at the Austin Hospital. She said she found this retraining program difficult and she was anxious and suffered panic attacks throughout. Initially she worked as a “bank” nurse at the Austin Hospital. In November 2005, she commenced work as a Division 1 nurse at Bundoora Extended Care, working initially three shifts per week. At the time, her husband and her family were under financial pressure. She increased her shifts to four shifts per week and for a period was in charge of an area of the facility. This carried extra responsibility. Upon the advice of Dr Gaskell and Ms Curran, she reduced to three shifts per week. Her capacity to cope with this work varied although she claims financial necessity dictated that she remained in employment.[2]
[2] PCB 22
24 She left Bundoora Extended Care and commenced work at the Northern Hospital in April 2006, working three shifts per week as a Division 1 nurse. Again, she was only able to just cope with that work because of her problems with anxiety, poor memory and concentration, disturbed sleep and a fear that she was not competent to work as a Division 1 nurse. Her husband was diagnosed with multiple myeloma in July 2006. She was distressed with this news. By April 2007, she worked an extra shift at the Northern Hospital, working eventually 28 hours per week, but found that she was exhausted after work. She claims that this extra workload was as a result of the financial needs of her family.
25 Throughout this period, she remained under the care of Dr Gaskell and Ms Curran, and saw each approximately once per month. Dr Gaskell prescribed an anti-anxiety medication, Alprazolam, together with Stilnox to assist with sleep. She claims, however, that the Alprazolam caused an adverse reaction, and she felt as if she was suffering a “hangover”. She found the medication made it difficult for her to concentrate at work. She ceased the medication, and has not been treated with anti-depressant or other psychological medication, despite the advice of a number of practitioners.
26 In 2008, she again moved employment to the Peter MacCallum Clinic. She said she hoped to broaden her skill base in nursing by engaging in oncological nursing. She found the induction program difficult. She made a number of mistakes in treating patients, and in March 2009, it was suggested she should resign rather than be dismissed for poor performance. The loss of this employment had a significant impact upon her, and at the advice of Dr Gaskell, she ceased work completely. She was away from work for a period of five months but then obtained employment at the Eltham Lodge Nursing Home, a facility treating elderly patients, and patients with dementia. Initially, she commenced work on three four-and-a-half-hour shifts per month. This was increased to one seven-and-a-half-hour shift per week, either on a Friday or a Saturday evening. Her work hours have fluctuated somewhat[3] and on occasions she has attempted to increase her hours. At the present time, she works approximately one seven-and-a-half-hour shift per week. She was pressed by Mr Elliott in the course of cross-examination that she had the capacity to increase to two shifts per week. She said she found it difficult to make decisions as to such matters but the advice of Dr Gaskell and Ms Curran was to remain working only one shift per week. She said she thought she would find it difficult to cope with more hours.
[3] See payslips – PCB 199-209
27 In January 2010, she was referred for treatment to Dr Graeme Kernutt, psychiatrist, who she now sees approximately each month. The treatment by her general practitioner involves counselling, and he also provides WorkCover certificates. Ms Curran also provides counselling. She does not take any medication. She is concerned that the taking of anti-depressant medication may have the effect of reducing her capacity to concentrate and to make decisions in the course of her employment.[4]
[4] PCB 27b
28 At the present time, the plaintiff complains of anxiety and tearfulness and impaired concentration and memory. She claims her sleep is disturbed and she gets three to four hours’ sleep a night. In the past she has suffered panic attacks which she says give her a sense of impending doom and fear. She states these attacks are now less severe and shorter in duration. She says her self-esteem and self-confidence have dropped. Her problems with memory and concentration give her particular concern about her capacity to remain nursing. She says that tasks which take other nurses a relatively short time take her a longer period as she is constantly checking to ensure that in particular, the prescriptions of medication which she administers to patients is accurate. She fears a mistake and the consequences. She has low energy levels and is easily fatigued. After each shift, she takes some time to recover and is required to rest. Her thought process is affected and she finds it difficult to make decisions and rationally assess her predicament. Her capacity to enjoy social and family functions has been reduced.
29 Of recent times, she has been granted a Carer’s Pension for the care she provides to her husband. She made the application upon the suggestion of the Department of Social Security. The care of her husband involves providing him with prescription medication and making sure that he eats and drinks appropriately. Her daughters, who live at home, lend substantial assistance when their study and part-time jobs allow.
30 The plaintiff has taken the view that with her psychological problems, she prefers to attempt to keep busy. She has been involved, since 2009, in slowly painting part of her house, with her daughters’ help. She finds her garden a retreat, and spends a considerable amount of time working in it and enjoying it. She still grows some plants and vegetables.
31 She does voluntary work, once a month or so with a local land care agency, and with a grasslands reconciliation group. This involves five or so hours per month.
32 She drives a manual car and does the family’s shopping, usually with another member of her family. She walks with her dogs regularly. She undertakes meditation and yoga.
33 She at one point considered obtaining work in a plant nursery. She made enquiries, but did not make a job application. She did not think she could cope with any managerial work.
34 She currently works one seven-and-a-half-hour shift per week, either on a Friday or a Saturday afternoon. She attempted at one point to work longer hours but could not cope with the increase. Her duties involve providing medication to the various patients. She administers drugs to about thirty patients, twice per shift. She considers that she works slowly and tries to stay focussed in these duties. She is distressed about her future. She worries she will be unable to continue her nursing duties and that that aspect of her career will be lost to her. She worries about mistakes and their consequences.
The Medical Evidence
35 Dr Penny Gaskell provided a number of reports.[5] She first examined the plaintiff on 6 February 2004 and noted increasing symptoms of tearfulness, low mood, poor concentration and memory, lethargy and poor sleep. She obtained a history of the development of these symptoms in association with difficulties at the plaintiff’s work, including the commencement of major building works, extra responsibilities managing the nursery, poorly skilled casual staff and ground maintenance. Dr Gaskell diagnosed the plaintiff as suffering a depressive illness. She managed the various return to work programs over the years and, in relation to the relationship between injury and employment, said:[6]
“The timeframe of her symptoms and work-place stress does appear to correlate with the work-place being a significant contributing factor to her illness.”
[5] PCB 81-101a
[6] PCB 88
36 In her attempted return to work programs, Dr Gaskell noted, on occasions:
“Overwhelming anxiety and stress which appeared to be related to work
and study.”[7]
[7] PCB 90
37 Dr Gaskell noted the plaintiff struggled with the demands of her position at the Peter MacCallum Hospital and stated that the plaintiff was:
“… shattered, and when faced with negative feedback from nursing educators and ward staff, her psychological state deteriorated and she subsequently resigned.”[8]
[8] PCB 101
38 Dr Gaskell noted the plaintiff had tried antidepressant medication but found the side-effects too difficult to tolerate. She considered that the plaintiff was keen to undertake work but could not do so without the help of herself and Ms Curran.[9]
[9] PCB 101
39 In her final report of 24 August 2010,[10] Dr Gaskell said that over recent months, the plaintiff’s anxiety was of concern. She further noted panic attacks in the context of her work. She found the plaintiff’s prognosis difficult to predict and that her condition had been up and down over the years, aggravated by workplace stressors.
[10] PCB 101a
40 The plaintiff’s treating psychologist, Ms Curran, provided a number of reports from November 2004 to September 2010[11] which mapped the course of the plaintiff’s psychological injury, and Ms Curran’s treatment of it. I found the reports comprehensive and helpful. Given the regularity of Ms Curran’s treatment of the plaintiff, over a long period, I consider Ms Curran’s reports provide an insight into the plaintiff’s condition. In her initial report,[12] she noted the plaintiff’s panic attacks and the feeling of experiencing impending doom and fear, causing rapid breathing and elevated heart rate. She also described the plaintiff’s symptoms of anxiety, depression, sleep disturbance, irritability, tearfulness and changes to appetite. The plaintiff reported significant problems with memory and concentration. She also reported being unreasonable and irritable with her family. At the outset, Ms Curran diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depression.[13] By December 2005, she had further diagnosed the plaintiff as suffering Panic Disorder by reason of the recurrent panic attacks.[14] She concluded that the anxiety and depression the plaintiff was suffering were related to the stress and heavy workload at the defendant’s workplace.[15] She considered the symptoms of anxiety as severe.
[11] PCB 102-154h
[12] PCB 105
[13] PCB 106
[14] PCB 116
[15] PCB 117
41 By April 2009, the plaintiff’s condition had deteriorated and Ms Curran diagnosed a Major Depressive Disorder, single episode, moderate, chronic.[16] She noted that for five years, the plaintiff had consistently reported symptoms of anxiety and depression with particular problems of cognitive function and ongoing panic attacks. She stated:[17]
“In my opinion, it is not likely that Cheryl will be able to return to nursing as the level of responsibility and the ability to think and act quickly that is a required part of such duties is beyond Cheryl’s cognitive capacity. In addition, the events that have occurred within the last three months suggest that such employment is worsening Cheryl’s condition rather than facilitating any improvement.”
[16] PCB 132
[17] PCB 133
42 Ms Curran was referring to her dismissal from the Peter MacCallum Clinic. She suggested the plaintiff take five months’ leave to recuperate.
43 After obtaining employment with the Eltham Lodge Nursing Home in August 2009, the plaintiff complained to Ms Curran, that after she finished her shifts, she was “tearful and exhausted the next day”.[18] She reported that she was unable to operate some medical equipment and needed assistance from other employees. This led to frustration and to other staff questioning her competency. In her report of 3 February 2010,[19] Ms Curran continued to be of the view the plaintiff suffered a Major Depressive Disorder. In relation to her current employment at the Eltham Lodge Nursing Home, Ms Curran said:[20]
“Given that the patient population in such a facility is long-term and Cheryl’s duties are predominantly administering medication from Webster packs, in addition to starting on two shifts a month, it was hoped that Cheryl would be able to cope with this work environment. However, as noted previously in this report, since starting this employment, Cheryl’s symptoms of anxiety and depression have continued. Cheryl remains unable to do more than four shifts a month and even with this restriction still experiences significant negative impacts. Cheryl remains extremely fragile and vulnerable and struggles to function normally with normal, everyday activities both at home and in the workplace. In my opinion the severity and long-term nature of Cheryl’s symptoms of anxiety and depression suggest that she is not likely to ever make a complete recovery from her condition.”
[18] PCB 142
[19] PCB 146
[20] PCB 153
44 In her final report of September 2010,[21] Ms Curran described the plaintiff’s ongoing symptoms and noted the plaintiff was attempting to undertake one seven-hour shift per week but that it was problematic and had a detrimental effect upon her functioning.[22] She said:[23]
“This level of impairment has caused a lowered sense of self-efficacy and self-esteem. Throughout the last six years, Cheryl has always worked hard at attempting to regain her normal abilities and to maintain an optimistic outlook, but the long-term nature of her condition has caused her to believe that despite her best efforts, her cognitive impairment is permanent. In my opinion the severity and long-term nature of Cheryl’s symptoms of anxiety and depression suggests that she is not likely ever to make a complete recovery from her condition. Cheryl’s ongoing impaired cognitive abilities with the resultant impairment to occupational functioning indicates that Cheryl is not likely to ever have the capacity to return to full-time employment.”
[21] PCB 154a
[22] PCB 154g
[23] PCB 154h
45 The plaintiff was examined in April 2008, January 2010 and November 2010 by Dr Michael Epstein, consultant psychiatrist. Initially, he believed the plaintiff had developed a Mild Chronic Adjustment Disorder with Depressed Mood and Anxiety and associated panic attacks as a result of her employment with the defendant at Edendale Farm.[24] By January 2010, he noted that her symptoms had become worse, and said:
“… some breakdown in her capacity for coping manifested by the development of Panic Disorder and a Major Depressive Disorder that appears to be undertreated.”[25]
[24] PCB 160
[25] PCB 168
46 He considered the stressors from her employment with the defendant had been a major factor in the development of those disorders. He disagreed with the views of Doctors Grant and Mendelson that her condition was not work- related, although he accepted that the plaintiff’s mother’s death could have contributed to the current situation. He disagreed with the proposition that removing the plaintiff from exposure to the original stressors would be likely to improve her condition. He disagreed with the view of Dr Grant that the plaintiff’s condition was “endogenous or constitutional” in nature. He thought her capacity for work was very limited.
47 Dr Graeme Kernutt is the plaintiff’s treating psychiatrist. He has treated the plaintiff since January 2010. He continues to see her each month. He received a history of symptoms since 2004 of depressed mood, increasing bouts of anxiety and becoming physically and mentally exhausted. The plaintiff complained of difficulties with concentration, impaired short-term memory and sleep disturbance. Initially the plaintiff had the optimistic view that she would eventually get better but this turned out not to be the case.
48 In his report of 18 August 2010,[26] Dr Kernutt noted the plaintiff had commenced work in her current employment initially at four-and-a-half hours per week, increased to seven-and-a-half hours. He said she appeared to be managing the workload, albeit with ongoing anxiety about making a mistake at work. He associated her symptoms of depression and anxiety with employment at Edendale Farm:[27]
“Unfortunately she continues to be troubled by fluctuating depressed mood, intermittent anxiety, poor concentration, low energy levels, fatigue, unresolved anger and generally negative and pessimistic thoughts about her future. At no stage has she been well enough or recovered fully to the extent that she would be able to return to the previous position of employment. She has responded to a degree to treatment from a psychologist and following her partial return to work, appears to be making some progress although this has been particularly slow. She has remained reluctant throughout to pursue treatment with anti-depressant medication.”
[26] PCB 170m
[27] PCB 170m
49 Dr Kernutt was satisfied the plaintiff had an Adjustment Disorder and that her symptoms affected her social and occupational functioning. He further believed her symptoms satisfied the criteria for a major depressive episode which was in partial remission. He noted that there had been an inadequate trial of anti-depressants and that despite her slow and gradual improvement, she remained significantly incapacitated with her symptoms of impaired concentration, fatigue and tiredness, and sleep disturbance. He said her long- term prognosis was “somewhat guarded”. He thought she was likely to continue to slowly improve with time. Her husband’s current illness contributed to her slow recovery.
50 Dr Rod Farnbach, consultant psychiatrist, examined the plaintiff on behalf of the defendant in December 2009.[28] He received a history of psychological symptoms similar to the other practitioners. He associated these symptoms with the plaintiff’s stressful employment. He noted that the plaintiff’s treatment with anti-depressant medication was inadequate and that an appropriate trial ought be instituted. He considered the plaintiff suffered symptoms of Post- Traumatic Stress Disorder, although he acknowledged that she did not fulfil the criteria for an actual or threatened death or gross injury event. He considered her incapacity severe for work and “in every aspect of her life”. He thought her condition would improve with effective treatment.
[28] PCB 170o
51 The defendant further arranged for the plaintiff to be examined by Dr Edward Cole, consultant psychiatrist, in March 2004. His opinion is now somewhat dated and thus of limited use. However, he obtained a history of a range of psychological symptoms, and diagnosed a major depression which he said arose as a result of a range of factors, including her personality, but also to the physically demanding and emotionally stressful employment with the defendant. This, he said, had significantly contributed to her nervous disorder.
52 The plaintiff was examined by Dr Alan Jager, consultant psychiatrist, in November 2004 and December 2005.[29] His reports are also somewhat dated. He diagnosed the plaintiff as suffering a Major Depressive Disorder characterised by anxiety, depression, tearfulness, insomnia and impairment of energy, appetite, libido and concentration. When he saw her in December 2005, he considered she had a working capacity of four days per week and that her impairment was unlikely to be permanent. He said there were non- work-related factors related to her condition, including her husband’s stress illness, her post-menopausal state and the death of her mother in 2004. These factors, he said, predisposed her to the development of her current psychological condition.
[29] Defendant’s Court Book “DCB”) 18-28
53 The plaintiff was examined by Dr Chris Grant, consultant psychiatrist, in August 2007, June 2009 and November 2010. He diagnosed the plaintiff as suffering a major depressive episode and initially, although not in his subsequent reports, as suffering a probable Bipolar Affective Disorder. He noted that her treatment was ineffective and she ought to be treated with appropriate anti-depressant medication under the supervision of a psychiatrist. In his last report, he noted she was working one day per week and unable to cope beyond that. He thought that she would be better able to cope with her nursing duties if she worked two or three abbreviated shifts, for example, four hours per shift. However, he considered that whatever the effect her employment with the defendant had upon her condition, it had, by 2010, ceased and her current condition related to pre-existing and unrelated factors. These were a significant genetic/constitutional predisposition via her mother plus her husband’s chronic ill-health and her mother’s death in 2004. He noted that the plaintiff had previously been working four shifts per week and that he could not account for the reduced work capacity at the current level.
54 Finally, the plaintiff was examined by Associate Professor George Mendelson, consultant psychiatrist, in December 2009 and November 2010. His opinion is significantly different from the other practitioners. He received a history that the plaintiff was resentful and aggrieved by reason of her work for the defendant and the way she was treated. He did not find she had any difficulty with memory or concentration, although he did not undertake any specific tests. She described to him difficulty in making decisions and anxiety about making a mistake while giving medications. She said she was totally exhausted after working for two days. She described to Dr Mendelson a range of activities, including working in the garden, walking her dogs, socialising and working as a volunteer with a local land care group. She did much of the shopping, cooking, cleaning and washing.
55 He disagreed with the diagnosis by other psychiatrists of a major depressive episode. He considered her symptoms as a manifestation of anxiousness, rather than any clinically significant depressive illness, which could not be attributed to her employment. He noted that employment had ceased in 2004 and the stressors related to it removed. He said:[30]
“I am not aware of any studies that have shown that the experience of an excessive workload can lead to chronic psychiatric illness. It well could be that Mrs Mutch was developing an endogenous psychiatric illness that adversely affected her ability to cope with the usual demands of her job while employed by Nillumbik Shire Council, and that this has led to ongoing emotional symptoms exacerbated by concerns about her husband’s illness and other factors discussed by Dr Kernutt in his report.”
[30] DCB 47g
56 He said that the plaintiff was not suffering any specific diagnosable mental disorder attributable to her employment, but rather manifestations of anxiousness. He thought the plaintiff could increase her work hours with support but there were non-work-related factors which had an adverse impact on her work capacity.
Causation
57 There are two camps amongst the various psychiatric opinions as to whether the plaintiff’s current condition is work-related. Doctors Jager and Grant, while acknowledging the plaintiff has a depressive condition, were of the view that it was not work-related. Professor Mendelson did not think the plaintiff had a diagnosable psychiatric illness, but rather manifestations of anxiety. These doctors referred to the other factors in the plaintiff’s life, including the death of her mother, her husband’s illness and her own endogenous personality traits.
58 All of the plaintiff’s treating practitioners, Dr Gaskell, Dr Kernutt and Ms Curran, accept the plaintiff’s condition is related to her work for the defendant, and the stressors involved. The consultants, Doctors Epstein and Cole, agree.
59 As stated, I am impressed with the reports of Doctors Gaskell and Kernutt, and in particular, Ms Curran. Each of these practitioners have consulted with the plaintiff over a long period of time (although Dr Kernutt has only commenced treating the plaintiff this year), and each conclude that her condition is work-related. I accept the opinions of these practitioners. Professor Mendelson and Doctors Jager and Grant, while referring to other factors in the plaintiff’s life, which may fairly be said to have in some way affected her condition, do not undertake a specific analysis of each of those factors, and the stresses which arise from them. None of those doctors temporarily link these various other factors with the onset of symptoms.
60 In contradistinction, the plaintiff’s significant psychological factors commenced at the time she was suffering the stresses of her employment with the defendant in 2003 and continuing into 2004. Dr Gaskell records that upon her first visit. Even Dr Cole, who examined the plaintiff on behalf of the defendant in March 2004, commented that her symptoms were significantly contributed to by her work.
61 On balance, I accept that the plaintiff’s described employment difficulties did significantly contribute to her current psychological state.
The Plaintiff’s Inadequate Treatment
62 Most of the practitioners refer to the fact that the plaintiff has had little if any treatment by way of anti-depressant and anti-anxiety medication. At an early time, the plaintiff was treated with an anti-depressant, but stated that this affected her capacity to concentrate, particularly in relation to her nursing duties. She said she felt as if she had an “hangover” after taking the medication. Further, in evidence, she said that she was concerned that anti- depressant medication may affect her capacity to undertake her nursing duties. She said:[31]
“Well, I did try some and I am a nurse and I am concerned about maintaining some sort of clarity in my mind when I am at work, and it concerns me a lot that I am already dealing with a level of woolly headedness and I didn’t want to make that any worse. I’m not entirely sure that it’s – I know that the law’s changed a little, I am not entirely sure that it’s legal for someone that’s doing clinical practice to be taking these medications now either. … Well, I did try the anti-anxiety … Alprazolam. … gave me an extremely bad hangover and I felt like I was a bit too disconnected. … .”
[31] Transcript 49, L18
63 Despite the urging of various practitioners, including those treating her, the plaintiff has resisted taking anti-depressant medication. It seems probable that such medication would reduce the effects of the various psychological symptoms with which she is afflicted. The question to determine is whether her stance is reasonable.
64 The plaintiff is a trained nurse and well understands the effects of medication. I accept that she has had the side-effects she describes from an earlier trial. Her stance on the matter must be seen in context of the struggle which she goes through to fulfill her nursing duties. I accept that she has significant difficulties with concentration and memory and that this makes, in particular, the prescription and provision of medication to the patients she cares for, a difficult task. She is required to take more time than would others to ensure the doses of medication are correct. Her concern that her taking anti- depressant medication would affect her capacity to concentrate and make the necessary decisions in her work is a reasonable one.
65 In my view, it is not appropriate to criticise the plaintiff for her stance.
Whether the Consequences Meet the “Severe” Test
66 In determining whether the plaintiff has satisfied me that the pain and suffering consequences of her psychological disorder achieve the “severe” level, it is necessary to consider the range of psychiatric illnesses that come before the Courts. At one end, a worker may suffer anxiety and depression which is a reaction to an underlying physical injury. At the other end of the scale, a psychiatric illness may require prolonged and intensive treatment, including hospitalisation, treatment with anti-depressant and other medications and other forms of treatment. Symptoms may include, at the extreme end, delusional thinking, suicidal ideation and even suicide attempts.
67 The Act does not define the word “severe”. In Mobilio v Balliotis & Ors,[32] the Court of Appeal said:
“… the change in language from ‘serious’ to ‘severe’ betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’. … .”
[32] [1998] 3 VR 833 at 846
68 So far as I am aware, there is no authority which measures the extent of the difference between consequences which, on the one hand may be “very considerable” and consequences which, on the other hand are “severe”. The latter word is undoubtedly one of stronger force. In my view, there is a significant gap between the two expressions. A person with a physical injury having consequences of that injury which are very considerable, is significantly less affected than a person with a psychiatric injury, the consequences of which are severe. The Concise Oxford Dictionary defines “severe” to include:
“Serious, critical … extreme, arduous or exacting, making great demands
on energy, skill et cetera.”[33]
[33] ‘The Australian Concise Oxford Dictionary’ (3rd ed.)
69 Each case must be determined on its own facts. Nonetheless, in my view, the onus upon a plaintiff in proving the consequences of injury are severe, is to prove to the Court that those consequences are significantly more harsh, extreme and serious than is required to be proved in a case relating to physical injury.
70 In making the necessary assessment, it is appropriate to consider the plaintiff’s life, recreational and domestic activities and employment before her injury, as compared to the present time. In my view, there has been a dramatic change brought about by her psychological condition. I am satisfied from the evidence that the plaintiff, although possibly a person with a vulnerable personality, enjoyed a wide range of social, domestic and recreational activities. She was able to work in a full-time capacity, caring for her family. That picture stands in stark contrast with her presentation at this time. Firstly, her psychological condition requires regular treatment by a range of health professionals. She sees her general practitioner monthly and receives counselling from her psychiatrist, at least from January of this year. She also has seen a psychologist, Ms Curran, regularly from 2004 to the present time each month. Ms Curran has commented on a number of occasions that in order for the plaintiff to maintain her present workload and her interests, she requires the support of herself and Dr Gaskell.
71 Secondly, I accept the plaintiff’s evidence and that of Ms Curran, that the effect of the condition upon the plaintiff is profound. I accept the plaintiff suffers anxiety and depression. Her sleep is significantly disturbed. She is regularly tearful. Of particular significance is that her memory and concentration are impaired to the point where, in the course of her employment duties, she takes considerably more time than would normally be the case to check and re-check her tasks and obligations to ensure she makes no mistake. Although her panic attacks are now less prominent, I accept that she still suffers from them and at times feels a sense of doom and fear. All of these symptoms have had a dramatic effect upon her life.
72 Thirdly, I accept the diagnosis of most of the practitioners that the plaintiff is suffering a Major Depressive Disorder. While the legislation is less concerned with the label a condition may attract under DSM-IV[34] than it is with the consequences of such disorder, nonetheless it is significant that the plaintiff’s condition has attracted such a serious description.
[34] ‘Diagnostic and Statistical Manual of Mental Disorders’ (4th ed.)
73 Fifthly, I had the benefit of witnessing the plaintiff give evidence and be cross- examined. Care should be taken in making an assessment of a person’s psychological state during the course of giving evidence. Witnesses are nervous, uncertain, and in an environment where they are uncomfortable. Nonetheless, I was impressed by the evidence of the plaintiff. She struck me as an honest witness giving a fair account of her difficulties. I did not detect any element of exaggeration or untruthfulness. She was regularly tearful in the course of her evidence, it was apparent she had difficulty with recall and memory. She was clearly very distressed by the effect upon her life of her psychological condition.
74 In the course of re-examination, the plaintiff attempted to describe the effects of the symptoms upon her, particularly in relation to her work tasks. She said:[35]
[35] Transcript 51 and following
“Q: How is your concentration?--- A:
It vacillates a lot. It can be all over the place. I don’t know, it’s like your mind just keeps skipping, like a faulty mouse. You know, it stops and goes and stops and goes, yeah.
Q: How long have you had these problems?--- A: Well since I was ill, 2004. Q: In terms of your happiness or unhappiness now, what do you say
about that?---A:
I guess I feel like I’ve failed and that’s not happy making. And I had a lot of plans for my career and that’s disappointing, so that’s not happy making.”
Q: How does this all affect you in a normal day? What is your day –
what is your day like?---A:
I’m all right as long as there’s not too many things happening. I do like to retreat to my garden. I suppose I really rely a lot on my children for prompting me about things, so I make extensive lists and … .
Q: How have you changed in yourself since 2004?--- A:
Now I just feel like a nuff nuff. It’s a silly word, isn’t it? I had such a lot of responsibility and I was really capable, I had such a good memory – I miss that.
Q: Tell us about your memory; what has happened to that?--- A:
Well, I didn’t know anything about running nurseries and I was able to learn all those skills and memorise lists and all this of plant names and I really enjoyed it. I really enjoyed the learning process, I learned – I enjoyed learning about something new and I learned – I enjoyed achieving things and now ….
Q: Well since 2004, you’ve gone onto other work. Three other forms
of employment haven’t you?---A: Yeah. Q: Has that helped you in any way, that working in the hospital,
working in the Peter MacCallum, has that distracted you?---A:
Well I was hoping that I could make a new career and well, you know, that part of my life would be new and I was looking forward to that but boy, it’s been so hard.
Q: What has been hard?--- A:
Just getting through it all and the learning process. I don’t have any difficulty with understanding, just being able to keep the information in my head, being able to utilise it in my work. I’m very very slow at learning now. It took me … .
Q: Does that upset you, have any effect on you?--- A: It really – well, I lost my job at Peter Mac. Q: Why was that?--- A: Because I couldn’t finish the assessments quickly enough. Q: What do you blame for that?--- A: My memory. Q: You say your memory? In what way is your memory affected day-
to-day?---A:
It’s just that quick recall, being able to bring the information back, my psychologist, Bridget, said she thinks probably information is there but it’s being able to bring it out and – in the hospital situation you’ve got to be able to have access to that information when you’re working.
. . . Q:
You complained of panic attacks. When did they start?---
A:
That – I had the, my first pretty bad panic attack – I think it was at the end of 2003, in the nursery. I can – I can remember that day because I didn’t know what was happening to me. I didn’t really have any idea what was happening to me.
. . . Q:
How did you manage with the refresher course (when training to be a nurse) and becoming a nurse again? and how did you cope?---
A: Very badly. One of the tutors was quite reluctant to re-register
me.Q: What was the problem?--- A:
And he – he – well, once again, it was just that – I don’t know – all my confidence left me. It was like I was a different person and I couldn’t – the memory thing and – just being able to learn things at the – at the pace it was required. …
Q: Then you decided to try Peter MacCallum, why was that?--- A:
In that you were required to memorise the diagnosis and treatment of thirty five patients and I just was finding that enormously difficult and also they had a lot of trouble with staffing there and … This is at Bundoora Extended Care … You’d arrive on a shift and there was never enough staff and there was often never a charge nurse and you’d be put in charge and I was very very worried about that because I didn’t have the confidence or the skill or the memory to be able to handle the information of thirty five patients. …
Q: In terms – I have come back to your work there (at the nursing
home), how difficult for you is your work at the home?---A:
Well I – I - I think I feel it most the next day. I feel quite – absolutely run out for the next few days. I think my mind goes on holidays for a few days.
Q: Do you think you could increase that to two shifts a week or do
you think one shift is it?---A:
I’ve talked to Dr Kernutt and Dr Curran and Dr Gaskell about it, and they have said ‘We’ll leave it for that – for the moment’. I really have lost a lot of very clear judgment and decision making skills, so – I’m not very good at deciding whether it’s a good idea or not, so I’ve just got to respect their opinions. …
Q: How often do you – these are panic attacks you’re talking about?--- A: Yeah. Q: How often do you get the smaller versions?--- A: Mostly when I’m going to work. Q: And what effect does that have on you? What is it?--- A: Just that sense of out of control and not – and fear. A lot of fear. Q: What’s the fear of?--- A: That I’m going to do the wrong thing, that I’ll lose – lose focus and
make a really bad mistake.”
75 This passage of evidence demonstrates the profound effect of the symptoms upon the plaintiff both in respect of her domestic and recreational affairs, and her work capacity. It represents a clear and inciteful perspective on the plaintiff’s problems.
76 In my view, the consequences to the plaintiff of her psychological injury do meet the ‘severe’ test.
The Plaintiff’s Work Capacity
77 It was agreed that the plaintiff had a “without injury” earning capacity of $813.90 gross per week. At the present time, although with some fluctuations, the plaintiff works one seven-and-a-half-hour shift per week. Her rate of pay appears to fluctuate between approximately $30 per hour and $54 per hour, depending upon the loadings and allowances. Taking an average, the plaintiff earns approximately $42 per hour. For a seven-and-a-half-hour shift, she therefore has a gross weekly income of $315.00. Sixty per cent of her agreed “without injury” earnings is $488.00 per week. Thus, if I were to accept the plaintiff’s work capacity as seven-and-a-half-hours per week, she meets the test prescribed by s.134AB(38)(e) and (f).
78 Mr Elliott argues that the plaintiff has a greater work capacity. He points to the following factors:
•
The plaintiff is registered as and receives a pension for the care of her husband. She receives a benefit of approximately $14,000 per year. Given this requires the plaintiff to be engaged in her husband’s care, this ought to reflect in an extended work capacity.
•
Various of the practitioners, particularly Dr Kernutt,[36] note that there has been a gradual improvement in the plaintiff’s level of depression. In the long-term, that will reflect in an increased work capacity.
[36] PCB 170n
79 I am satisfied that the plaintiff’s current work capacity is the seven-and-a-half- hours, or one shift she works per week at the Eltham Lodge Nursing Home. In the passage of evidence referred to above, it is clear she has significant difficulties undertaking the work, particularly the prescription and provision of medication to the patients. She takes considerably longer than would otherwise be the case, and is constantly worried about the prospects of a mistake. While at the outset, the plaintiff worked considerably longer hours, at times up to four shifts per week,[37] she has not been able to maintain those work hours. While there has been reference to some slow improvement, other practitioners, particularly Ms Curran,[38] and Dr Epstein,[39] believe that the plaintiff’s condition has worsened, and that her work is having a detrimental effect upon her condition.
[37] See Dr Gaskell’s Certificate of Capacity as at March 2007 – DCB 82
[38] PCB 154g
[39] PCB 168
80 In my view, the fact that the plaintiff is her husband’s carer does not necessarily reflect in an increased earning capacity. In her evidence,[40] she described her duties as including making sure her husband took his medication and that he eats and drinks appropriately. The plaintiff does most of the driving. She denied she exercised nursing skills in her role as a carer. She said her duties could easily be done by a person without any nursing training. The plaintiff’s duties as a carer appear to me to be modest and require her to assist her husband in various ways, but the nature of the tasks involved are far different from those she undertakes as a Division 1 nurse. It is a very different environment at home than working as a nurse in an aged- care facility looking after thirty or so patients. I am not satisfied that the plaintiff’s duties as a carer reflects in any increased work capacity.
[40] Transcript 22-23
81 I am satisfied that the plaintiff’s work capacity is reflected in her current working hours. In those circumstances, the plaintiff’s application in relation to pecuniary loss succeeds.
82 For all of the above reasons, I propose to grant leave to the plaintiff to bring proceedings both in respect of pain and suffering, and pecuniary loss. I shall make the appropriate orders.
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