Ngo, Kim Phuong v Dollar Curtains Pty Ltd
[2010] VCC 122
•25 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02947
| KIM PHUONG NGO | Plaintiff |
| v | |
| DOLLAR CURTAINS PTY LTD | Defendant |
| (ABN 28 483 426 089) |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12, 15, 16 and 17 February 2010 |
| DATE OF JUDGMENT: | 25 February 2010 |
| CASE MAY BE CITED AS: | Ngo, Kim Phuong v Dollar Curtains Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0122 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) serious injury application – credit of plaintiff in issue – nature and extent of injuries – disentangling between organic injury and chronic pain syndrome – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with | Slater & Gordon Ltd |
| Mr M Schultz | ||
| For the Defendant | Mr P D Jens | Wisewould Mahony |
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding seeking damages at common law with respect to the pain and suffering and economic loss consequences to her of an injury sustained in the course of her employment with the defendant on 29 November 2005 (the incident). The injury relied upon by the plaintiff is that of a permanent severe mental or permanent severe behavioural disturbance or disorder under part (c) of the definition of “serious injury” in s.134AB(37) of the Accident Compensation Act 1986 (“the Act”).
2 In the application, the plaintiff relies upon two affidavits, the first sworn by her on 19 January 2009 (“the first affidavit”); the second on 9 February 2010 (“the second affidavit”). In the course of the application, the plaintiff gave evidence and was cross-examined. In addition, the plaintiff’s treating general practitioner, Dr M Dimitroff, gave evidence and was cross-examined, as did Ms S Nguyen, the plaintiff’s treating psychologist.
3 In her first affidavit, the plaintiff deposed:
•
That she is a fifty-six year old divorcee who, having been born in Vietnam on 5 August 1952, migrated to Australia in 1982 at the age of thirty. She said that she was unable to read or write English and that although she spoke English, she did not consider herself to be proficient in that language.
•
That upon arriving in Australia she took up work as a machinist. In 1993, the plaintiff suffered a back injury in the course of her then employment (the 1993 incident). Following the 1993 incident, the plaintiff first returned to employment in 2004 when she commenced her employment with the defendant. She continued in that employment until the subject incident (the incident) which occurred on 29 November 2005.
•
That following the incident, she developed symptoms of neck, shoulder and left arm pain. The plaintiff consulted her general practitioner and was referred for hydrotherapy. In mid-2006, she was referred to a psychologist for treatment of symptoms of depression. Subsequently, the plaintiff underwent a number of procedures in treatment of the injuries suffered by her in the incident, including an ultrasound-guided injection in which anaesthetic and steroid was injected into her left shoulder, and two further injections for pain relief.
•
That the consequences of the injuries she had sustained in the incident (the injuries) had been to cause her constant pain in her left shoulder and neck. She said she had reduced strength in her left arm and shoulder, that she had difficulty combing or washing her hair and that she experienced difficulty in dressing and in activities such as doing up her bra. The plaintiff said that she was left-hand dominant and that she managed her symptoms by recourse to physiotherapy, massage and the use of Panadeine Forte three times a day. She described suffering nightmares and having difficulty sleeping. She said that she had suicidal thoughts and that she made use of Avanza[1] and Neurolax to assist her sleeping.
•
The plaintiff said that although she held a driver’s licence, she did not drive other than on the rarest occasions and that it was her belief that she last drove in about August 2007. She said that she did not garden very much, that she had difficulty with cooking and lifting heavy cooking utensils and that she employed the services of a gardener to do mowing and a cleaner to assist her once a fortnight.
[1] which is an anti-depressant
4 In her second affidavit, the plaintiff deposed:
•
That her treatment was continuing in the form of physiotherapy and hydrotherapy.
•
That she continued to employ Avanza and medication to assist her to sleep and that these medications were being prescribed by her general practitioner who was also prescribing Panadol Osteo for her pain.
•
That she was continuing to see her psychologist, Ms Sandra Nguyen, every two weeks.
•
That her symptoms included difficulty sleeping, experiencing nightmares, and suffering from pain in her left shoulder and neck. She said her depression was continuing, that she felt down, sad, that she had difficulty with concentration and that she felt frustrated. She described feeling that her life was hopeless and worthless. She said that whilst she continued to drive, her driving was confined to travelling short distances, and that by way of recreational activity she attended the Springvale Library and visited a nursing home where she spoke mainly to elderly Vietnamese people. She said that engaging in the latter activity caused her to feel less hopeless and depressed.
•
That she was unable to work by reason of her pain and her ongoing psychological injuries. She described herself as being computer illiterate and of being qualified only to perform physical work. She described herself as remaining depressed, down and as feeling hopeless. She said she could not cope with employment by reason of her psychological injuries.
5 In the course of evidence-in-chief, the plaintiff said that following the 1993 incident, she had received weekly payments until the settlement of her action for damages in 1998. She said that following the resolution of that claim she continued to have treatment for her back and to look after her children. She said that by 2003 her back condition had improved and that with the help of the Commonwealth Rehabilitation Service (“CRS”), who were aware of her back injury, she found light duty-type work with the defendant.
6 In cross-examination, the plaintiff said that following the settlement of her claim in relation to the 1993 incident she had been in receipt of a Disability Support Pension by reason of the incapacity caused by her back. Whilst she accepted that she had some emotional problems associated with her back injury, she said that she had no treatment for those problems because:
“I didn’t consider severe enough to consult the doctor.”[2]
(sic)[2] T 27
7 The plaintiff said that she found employment with the defendant through the assistance of CRS. The CRS was aware that the plaintiff had a bad back and it had assisted her to find work with an employer which involved duties which would not aggravate her back condition. She said however that she had continued to suffer from symptoms of low-back pain which were aggravated by activities such as standing or sitting for longer than ten minutes.
8 A number of surveillance films were shown to the plaintiff. Generally the plaintiff accepted that these films accurately depicted the activities she was undertaking on the occasions which were depicted.
9 The plaintiff agreed that she had told Dr Epstein in January 2008 that she had ceased driving in November or December 2007 by reason of the presence of pain in her right heel and lower back. She said that she still suffered from pain in her right heel but that she was able to drive short distances. She said that her restricted ability to drive was caused not only by the symptoms in her heel but also by reason of the symptoms in her neck and arm. It was put to the plaintiff that the reason for the change between the statement made by her in the first affidavit that she did not drive, and her second affidavit in which she said she drove for short distances, occurred by reason of the fact that she had seen video surveillance which depicted her driving a car in June 2009. [3] It was put to the plaintiff that she had driven on numerous occasions in 2009, which she denied. It was put to the plaintiff that she made use of her car almost every day. She said that she used the car sometimes one day a week and that in other weeks she might not drive at all. It was put to the plaintiff that she had told Mr John O’Brien, a surgeon who had examined her in May 2009, that she did not drive. She said that she told Mr O’Brien that she rarely drove but that she did not mean to say that she had stopped driving completely. It was put to the plaintiff that she told Dr David Weissman, a psychiatrist, that she did not drive any more. She responded:
“I didn’t mention that I stopped driving completely but on rare occasions I
still drive but mainly I use taxi and public transport.”[4]
(sic)
[3] the driving involved was clearly a short distance between a car park and the plaintiff’s house
[4] T 147
10 The plaintiff accepted that she would attend the Flemington Library, and that she enjoyed this activity as:
“The library is a quiet atmosphere so I want to be in there.”[5]
[5] T 96
She said that she had made endeavours to improve her English by watching television with sub-titles and attending the library and making use of the computer to learn English
11 The plaintiff said that following the 1993 incident her back pain had caused her to reduce her swimming but that she had taken up dancing in 1998 as a means of therapy. She found that this activity:
“helped the pain relief and then fun too.”[6]
(sic)[6] T 136
12 In re-examination, the plaintiff was asked:
“Q: Are the levels of symptoms always the same or do they vary?--- A: It’s different level. Q: What is the connection between the level of symptom and the
extent of movement you have of the left shoulder?---A:
With the movement I try to limit the angle of my armpit. If small angle it will be okay for some moment. If I try to open the angle here it will cause more pain. I try to close the angle.”[7]
(sic) [7] T 154 In speaking of the angle, the plaintiff was clearly referring to abduction of the elbow
13 The plaintiff said that in the course of engaging in the activities depicted in the surveillance undertaken on 6 June 2009, she was attempting to walk normally as she had been encouraged to do so by her psychologist. She said however, that on the day in question she had been required to sit down and massage her shoulder on two occasions, and that this was not depicted on the video.
14 The plaintiff said that even before her shoulder injury she had difficulty driving her car for more than twenty minutes by reason of the presence of back pain. She said that she had been encouraged by her psychologist to socialise and go to the library and that she had been told that she should not isolate herself at home. In explaining her attendance at libraries at Flemington and Springvale, the plaintiff said:
“After the injury I felt depressed and very often I isolate myself, so my psychologist advised me to try to go out and do what I can to satisfy the desire that I’m unable to do, so I can satisfy my desires by reading some information in the book, explain about things I like to do but I am not able to do.”[8]
(sic)
[8] T 169
The Credit of the Plaintiff
15 Given the considerable range within the views expressed by the psychiatrists whose evidence is relied upon by the parties in this proceeding, I am of the opinion that my assessment as to whether the plaintiff is a credible and accurate historian is fundamental to the finding which I am required to make in this proceeding as to the consequences of the psychiatric injury which the plaintiff has suffered upon her lifestyle and her ability to work.
16 It is submitted on behalf of the defendant that the plaintiff has been guilty of exaggeration when describing the effect of her injuries upon her, that this exaggeration has influenced the assessments of the psychiatric opinions relied upon by the plaintiff to support the contention that her psychiatric condition is appropriately described as being “severe” in accordance with the meaning of that term as used within the provisions of the Act, and that accordingly those opinions are unreliable.
17 It was put that the recovery by the plaintiff from the injury to her back as the result of the 1993 incident should call into question the issue as to whether the pessimistic prognoses with respect to the plaintiff’s present psychiatric condition are reliable. In putting this proposition, the defendant relies substantially upon the medical report of Dr Jaworowski a consulting psychiatrist, who examined the plaintiff on 25 August 1998. In the course of his report, Dr Jaworowski expressed the opinion that the plaintiff was suffering with a Depressive Disorder together with a Chronic Pain Syndrome and that her prognosis was guarded.
18 Counsel for the defendant submitted that this description of the plaintiff’s presentation in 1997 was remarkably similar to that of the plaintiff’s present presentation.[9] On that ground it was suggested that the extent of the plaintiff’s recovery from that injury is a matter which I should take into account in determining whether or not I am satisfied that the plaintiff’s present condition is stabilised and that her prognosis is one which should be regarded as excluding any probability of recovery.
[9] a position with which Ms Nguyen agreed – T 122 – T 123
19 I am not persuaded that it would be either reasonable or appropriate to adopt this approach. It is clear that in 1993 there was a considerable variation in the diagnoses of the various medical practitioners who examined the plaintiff, both as to the extent of her physical injuries and her emotional injuries. That variation extended at one extreme, to medical practitioners expressing the opinion that the plaintiff was substantially disabled from the effects of an organic physical injury and, at the other extreme, to the opinion that the plaintiff was suffering from a psychologically-based organic pain syndrome. It could be by no means asserted that the opinion upon which counsel relied from Dr Jaworowski, represented a consensus even of the psychiatric opinions obtained by the parties in the litigation instituted by the plaintiff with respect to the 1993 incident.
20 Further, it is the uncontested evidence that whilst the plaintiff suffered from some depression in association with the 1993 incident, the level of that depression was never such that the plaintiff required treatment for that condition. This fact alone contrasts so significantly with the history of the plaintiff’s present psychiatric injury, which has involved the prescription of medication in the form of Avanza and Neurolax and over one hundred consultations with her treating psychologist, that I find the defendant’s position on this issue untenable.
21 Whilst I accept the position put on behalf of the defendant that some aspects of the plaintiff’s evidence may suggest the presence of a degree of exaggeration on her part as to the extent of the consequences of the injury upon her[10], my general impression of the plaintiff’s evidence was that the credit issues raised by the defendant, when tested, were generally resolved in favour of the plaintiff’s position rather than adverse to it. In making this finding, I rely specifically on the following matters:
[10] In this regard I am referring to the issue which arose as to the plaintiff’s use of a motorcar
(i)
The history of the plaintiff’s return to work following her 1993 injury is not, in my opinion, consistent with the behaviour of a person involved in litigation was primarily focussed upon achieving a financial outcome which was disproportionate to the effects of her claimed injury.
The plaintiff suffered her injury in 1993. Her common law proceedings were settled in October 1998. Notwithstanding the settlement of her common law proceedings, the plaintiff did not return to work until 2004. The plaintiff’s return to work with the defendant was achieved through the assistance of CRS which was able to secure for the plaintiff employment within the parameters of her restricted capacity caused by reason of her continuing back pain which was a legacy of the 1993 incident. The plaintiff’s evidence on this issue, which was unchallenged, was as follows:
“Q: When you were on your Disability Support Pension before
you started work with Dollar Curtains, you understand?---A: Yes. Q:
And at that time, that is back in 2003, you were seen – because of your Disability Support Pension – you received some assistance from The Commonwealth Rehabilitation Service, the CRS, to get back to work, is that the case?---
A: That’s correct. Q: And you told The Rehabilitation Service all the problems that
you had to cope with?A: Yes I did. Q: And the fact you’d had a bad back?--- A: That’s correct. Q: And taking into account your limitations? A: That’s correct. Q: They helped you to find work? A: That’s correct. Q:
And was one of the ways in which they helped you to find work was to arrange with a potential employer work that would not aggravate your back condition, for instance?
A: That’s correct. Q: And was that aspect – was that successful, were you able to
cope with your work in relation to your back?A: That’s correct.”[11] [11] T 29, T 30
I consider the plaintiff’s behaviour which involved a return to work through the help of CRS, in employment which was chosen to suit the restrictions from which she suffered by reason of continuing symptoms caused by the1993 incident to be behaviour which speaks in favour of the plaintiff’s credit rather than against it.
(ii) The history provided by the plaintiff to Dr Dimitroff in the course of an examination undertaken on 20 July 2005 to the effect that she was “happy working for Dollar Curtains measuring curtains – light work” is consistent with the attitude of an employee seeking to rehabilitate herself into the workforce in the presence of continuing back symptoms and, again, speaks in favour of the credit of the plaintiff;
(iii) The absence of any suggestion that the plaintiff was other than a satisfactory worker during the period of the eighteen months in which she was employed with the defendant prior to sustaining her injury on 29 November 2005 further speaks in favour of the plaintiff’s credit;
(iv) The plaintiff’s evidence that she has accepted and acted upon the encouragement of her general practitioner, Dr Dimitroff, and her treating psychologist, Ms Nguyen, that she should seek to involve herself in the community rather than withdrawing from it; which she has done by visiting elderly people at a nursing home two or three times a week, attending libraries and maintaining close contact with her daughters and grandchildren; are activities which I consider to be atypical of a person seeking to exaggerate the effects of her psychiatric condition and which also speak in favour of her credit;
(v) Generally, I considered the way in which the plaintiff responded to questions in cross-examination to be consistent with the demeanour of a witness doing her best to provide truthful and accurate answers. Her ready concessions as to the presence of ongoing heel pain[12] and back pain[13] conditions which are not related to the injuries relied upon by the plaintiff in this application and which the plaintiff readily agreed caused symptoms of some significance to her, represented in my view, the answers I would have expected of a candid witness rather than a witness seeking to further her own interests;
[12] T 37
[13] T 136-137
(vi) The video evidence relied upon by the defendant, in my opinion, did not reveal the plaintiff to be engaged in activities which were inconsistent with the evidence given by the plaintiff as to the restrictions which her injuries placed upon her life.
•
It was the plaintiff’s evidence, which was supported both by Dr Dimitroff and Ms Nguyen, that she had a capacity to drive for short periods and that she did so irregularly. This evidence by the plaintiff was not in any way contradicted by the video surveillance relied upon by the defendant, rather the surveillance evidence tended to support the plaintiff’s position.
•
Whilst it was put by the defendant that the video surveillance revealed the plaintiff to be engaged in activities such as shopping and movements of her left arm inconsistent with her described capabilities, I do not accept that the video evidence revealed the plaintiff to be engaged in any activity or movement which was totally inconsistent with the evidence given by the plaintiff as to her level of activity or her physical capabilities. The plaintiff acknowledged that her symptoms varied. In my opinion, the video evidence was consistent with and corroborated this evidence. Whilst it is clear that the surveillance undertaken in December 2009 revealed the plaintiff to be moving with less restriction than the surveillance undertaken on other occasions, I am of the opinion that on no occasion was the plaintiff shown to be moving in a way totally inconsistent with the range of movement which she had described in her evidence as being present in her left arm. Further the video surveillance of 21 July 2009 revealed the plaintiff to be holding and guarding her left arm and carrying items which she supported by both of her hands; in undertaking each of these activities the plaintiff appeared to be moving in a manner consistent with that of someone experiencing pain in her left arm.
•
The support provided to the plaintiff by both her general practitioner and her treating psychologist, who have had ample opportunity to make assessments as to the genuineness or otherwise of the plaintiff’s presentation, are also matters which speak in favour of her credit.
(vii) It was submitted by the defendant that inconsistencies in the plaintiff’s level of function when presenting for some of the medical examinations arranged for the purpose of this proceeding raised an issue adverse to the plaintiff’s credit. Given that the medical examiners involved did not suggest the plaintiff to be feigning, I do not accept this submission. Indeed I am not surprised that in a claim involving the presence of a chronic pain syndrome there might be some inconsistency in presentation which may come about by reason of the severity of the plaintiff’s psychiatric symptoms at a given time.
22 For these reasons I do not accept the defendant’s submission that the plaintiff’s credit has been impugned and that I accept the plaintiff’s evidence as to her level of incapacity and the consequences of her injuries upon her.
The Medical Evidence
23 The medical evidence relied upon by the plaintiff as to the nature, extent and permanence of her psychiatric illness is as follows:
Dr Dimitroff
24 Dr Dimitroff is the plaintiff’s treating general practitioner. Whilst in his report dated 24 November 2006 he expressed the opinion that the plaintiff’s main diagnosis appeared to be a soft tissue injury of the left shoulder girdle, by 2 February 2010, he considered that the plaintiff was suffering from a Chronic Pain Syndrome and opined:
“Support with physical therapies and psychological therapies are still important. Kim is anxious about her condition. There are aggravating factors such as the lack of education and the loss of her traditional role in looking after her children. Encouragement is required with regard to exercise, socialisation and development of skills, including better language. Kim would not be able to do physical work like before, especially taking into account a pre-existing back problem. Help would be required to find a possible job for her/training for her.
At present she is not able to work. I am not confident in the long-term of her return to meaningful work.”
25 Dr Dimitroff gave evidence in the course of the application:
• In the course of evidence-in-chief, he described obtaining a history from the plaintiff on 25 July 2005 that she was “happy working for Dollar Curtains measuring curtains – light work”. He commented on the relevance of the plaintiff’s pre-existing back condition in the following terms: “It flared up occasionally but it’s not been a real restriction on her. I think she tried to work around the back, as had been advised through Cedar Court when she was there for rehabilitation.”[14]
[14] T 54
•
In cross-examination, Dr Dimitroff agreed that a number of other issues impacted upon the plaintiff’s shoulder injury but he said that this did not take away from the fact that there was a reported injury and a temporal relationship between that injury and the plaintiff’s symptoms. He described the plaintiff’s injury as being the main instigator of her symptoms but accepted that her symptoms were modified by other factors, including that the plaintiff had been separated from her children by reason of the fact that they had grown up and left home. He explained his view in this regard in the following terms:
“Talk to most mothers and they will tell you that’s an issue in their lives. So it is, it would impact on what is already a syndrome, a symptom that she’s got. It’s not going to cause the symptoms she has, it’s not going to cause the disability she has. But it’s certainly going to impact the effect it has, maybe the severity it has and even the treatment.”[15]
• Dr Dimitroff expressed the view that he considered that the plaintiff possessed the ability to drive to her hydrotherapy and physiotherapy treatment, but that she generally made use of public transport. He said he had encouraged the plaintiff to do as much as she could, including visiting friends or going to the library. He described the plaintiff’s ability to engage in these activities as not being a good sign but as being an indication at least that she was able to do some almost normal things.[16] He described the plaintiff as having made minor improvements during the period in which he had treated her but that her feeling of pain had persisted. He said that her optimism had improved a little bit and this improvement may have been associated with his prescription of Avanza, being an anti-depressant, or the involvement of the plaintiff’s psychologist.[17] He commented however: “She hasn’t progressed very far and that’s why I don’t have a very good view of optimism for the future of this, and that’s tempered with our experience and generally of other people who have got chronic pain.”[18]
[15] T 69
[16] T 71
[17] T 74
[18] T 75
26 He described the plaintiff’s pain syndrome as being the overriding issue, and in this regard he said:
“I would probably put the syndrome on the top.”[19]
[19] T 79
He expressed the opinion that the plaintiff could not work, and maintained the position in this regard which he had taken in his report.
27 In re-examination, when asked what he made of the plaintiff, he commented:
“I guess I believe that she has these significant problems. What is frustrating to us is we don’t know what triggers these mechanisms off. She is in the same cases as quite a few of our patients and unfortunately our treatments are not very good.”[20]
[20] T 83
28 It was put on behalf of the defendant that Dr Dimitroff presented as a witness who was really an advocate for his patient. Whilst it was my impression that Dr Dimitroff was clearly annoyed at having to come to court and at the questions which were directed to the proprietary of his management of his patient,[21] I did not consider his evidence to be in any way unreliable or unbalanced or that he had adopted the role of an advocate and not of a medical practitioner expressing his genuine views as to the condition of his patient. Further I consider Dr. Dimitroff to be well placed to comment upon the nature and extent of the plaintiff’s symptoms given the long period of time during which he has acted as the plaintiff’s treating medical practitioner (which dates back well before the happening of the incident). For these reasons I accept the opinions expressed by of Dr. Dimitroff as to the level and effect of the plaintiff’s psychiatric injury .
[21] T 58 to T 65
The Evidence of Ms Sandra Nguyen
29 Ms Nguyen, as the plaintiff’s treating psychologist, authored three reports dated 20 August 2007, 29 September 2007 and 20 January 2010 respectively.
30 In her first report, Ms Nguyen opined that the plaintiff complied with the criteria for a diagnosis of Major Depression according to the Diagnostic and Statistical Manual of Mental Disorder (4th ed.). She opined that, psychologically, the plaintiff was unable to return to work at that point in time.
31 In her report dated 20 September 2007, Ms Nguyen updated her previous opinion and her comments were essentially consistent with those expressed in her earlier report.
32 In her final report dated 20 January 2010, Ms Nguyen commented:
“Ms Ngo would struggle to perform her pre-injury duties due to her anxiety about returning to work, her difficulties in maintaining concentration for long periods of time, as well as her feeling tired due to difficulties in her sleep patterns. Her ongoing depression would seriously impair her ability to perform any work during this period of time.”
She continued:
“At present Ms Ngo struggles to maintain concentration and manage her depression. She will therefore struggle with returning to the workforce. She will not be able to cope with any form of employment.
From a psychological perspective, Ms Ngo is working very hard to address issues that influence her depression. She is making some improvement although her progress is slow. Her prognosis is guarded.”
33 In the course of her evidence-in-chief, Ms Nguyen said that she had seen the plaintiff on one hundred and fourteen occasions. She said that she had initially consulted with the plaintiff once each week, but that in 2009 the frequency of consultations had changed to once a fortnight. She described the plaintiff as suffering from a Major Depressive Disorder and said that, whilst her treatment had helped the plaintiff progress, there were still a lot of barriers present. She said:
“I’ve set goals for her to go out into the community, to continue with her volunteer work instead of just isolating herself at home. They’re goals as part of treatment for her to improve, reduce her depression.”
34 When asked about the plaintiff’s future, she opined:
“I think based on her experience, her education, her language barrier, I
could not see her going back to work.”
35 In cross-examination, Ms Nguyen accepted that she was at a considerable advantage in assessing the plaintiff by reason of her ability to communicate with the plaintiff in her first language. Although she expressed the opinion that she did not believe the plaintiff to be suffering from a Chronic Pain Syndrome, it was her view that:
“I think the psychological state definitely has an impact on her – of her
experience of pain.”[22]
[22] T 116
36 Whilst Ms Nguyen expressed the opinion that by reason of her psychological condition alone the plaintiff was disabled, she commented that the plaintiff was not disabled from carrying out all day-to-day activities but that she had problems maintaining concentration for long periods and that her memory was poor.[23] It was put to Ms Nguyen that she had a little knowledge of the circumstances of the plaintiff’s 1993 accident and its effect upon her emotional state. Ms Nguyen agreed that the litigation process was causing the plaintiff a great deal of anxiety and that the cessation of the process could relieve her anxiety and result in an improvement in her symptoms.
[23] T 117
37 The medical opinion of Dr Jaworowski, a psychiatrist, who had examined the plaintiff in 1998, was put to Ms Nguyen, who commented that if the opinion of Dr Jaworowski was accurate as to the plaintiff’s presentation at the time of his examination, that presentation was very similar to the opinion held by Ms Nguyen as to the plaintiff’s current presentation.
38 Having been acquainted with Dr Jaworowski’s opinion, Ms Nguyen conceded that the plaintiff’s prior psychiatric history was a matter of significance from a “psychological expert’s point of view … in trying to nut out the whole problem for her”. Ms Nguyen accepted that whereas she had considered that the plaintiff, when she had commenced working with the defendant, was without any psychological problems, it was possible that any previous problems associated with the 1993 incident had not cleared away. Ms Nguyen further accepted that, the fact that the plaintiff’s daughters had left home, was an aggravating factor to her depression and that she had encouraged the plaintiff–
“to continue to volunteer at the nursing home, to meet up with her daughter, especially the one that has children, so she can visit her grandkids because that brings her a lot of joy. To get out of the house each day, not just stay in the house and be alone.”
39 In re-examination, when taken to the fact that following the 1993 incident -
• the plaintiff did not receive any psychiatric treatment; • that Dr Dimitroff did not consider that in 2004 the plaintiff was presenting with any emotional problems; • that after commencing her work with Dollar Curtains Dr Dimitroff had obtained a history that the plaintiff was happy in her work, and when asked whether these facts made any difference to the picture which was being presented in the course of cross-examination, Ms Nguyen commented that it was her assessment of the incident and the plaintiff’s resultant injury that: “it wasn’t calculated, that she was – she was going to work, she was happy to work, she wanted to start a new life for herself, and her depression had resolved and the depression that she’s suffering now has occurred as the result of this current injury and not the previous injury”.
40 Ms Nguyen agreed with the assessment of Dr Weissman that psychologically, by reason of the fact that she had been off work for many years following the 1993 injury, the new injury may have occasioned an even greater psychological blow to her. When asked the question:
“Have you put any thought or consideration into what you make of her as
a person?”
she replied:
“She presents as someone who’s very genuine, who’s very caring, who’s honest and upfront about her emotions. She wants to get better; she meets her homework tasks from a psychological point of view with the activities that we set her.”
41 When asked to comment as to the effect that the conclusion of the litigation would have upon the plaintiff’s prognosis, she commented:
“It will help to relieve her anxiety but the depression side of things, I think
she’ll still be suffering from depression.”
42 When asked whether this influenced her prognosis in any way, she responded in the negative.[24]
[24] T 133
43 I considered Ms Nguyen to present as an impressive witness. The fact that she possessed a significant advantage in assessing the plaintiff by reason of her ability to communicate in the plaintiff’s first language was a matter conceded by the defendant.[25] Her relationship with the plaintiff, which had involved some one hundred and fourteen consultations, and had extended between June 2006 and the present date, also placed Ms Nguyen in a strong position to opine as to the nature and extent of the plaintiff’s psychiatric injury.
[25] T 114
44 Ms Nguyen’s evidence, if accepted without qualification, is of considerable assistance to the plaintiff’s case. Her statement that the plaintiff presented as “someone who is very genuine, who is very caring, who is honest and upfront
about her emotions. She wants to get better. She meets her homework tasks
from a psychological point of view with the activities that we set out” when considered in the context of her opinion that the plaintiff would not return to work,[26] was strong and persuasive evidence in support of the plaintiff’s case.
[26] T 114
45 The fact that Ms Nguyen was, on 10 January of this year, convicted of two counts of obtaining a financial advantage by deception and that her offences involved defrauding the Victorian WorkCover Authority and the Transport Accident Commission by the creation of invoices in respect of fictitious consultations, is a matter which I must take into account in considering whether I find her evidence to be persuasive.
46 In dealing with this issue I am of the opinion that:
(i)
it is firstly appropriate to consider the nature of the treatment administered by Ms Nguyen to the plaintiff for the purposes of examining whether there is any suggestion that the treatment was inconsistent with the approach expected of a competent psychologist administering appropriate treatment to her patient;
(ii)
it is secondly appropriate to take into account the demeanour of Ms Nguyen in the course of her evidence.
The Treatment Issue
47 In this regard, I note that there has been no suggestion in any of the medical reports obtained by the parties to this proceeding that the treatment administered by Ms Nguyen to the plaintiff was anything other than appropriate.[27]
[27] In this regard I note the specific endorsement of the treatment provided by Dr Rose, a psychiatrist, who has opined in this matter.
48 Further, the fact that Ms Nguyen’s approach to the plaintiff’s treatment was one which encouraged the plaintiff not to withdraw but to become involved in community and other activity by setting goals as part of her treatment program which goals were designed to reduce her depression, was similar to the approach espoused by Dr Dimitroff as being in the plaintiff’s interests.[28]
[28] T 70
49 For these reasons I am satisfied that by reason of the treatment she has administered to the plaintiff, Ms Nguyen has acted as I would have expected a competent and diligent psychologist to act.
The Demeanour and Evidence of the Witness
50 It was my impression that the concessions made by Ms Nguyen in cross- examination[29] were concessions which were considered and appropriate. Whilst her evidence was generally supportive of the position of her patient, there was no aspect of the opinions expressed by her in the course of her evidence both in chief, in cross examination or in re examination, which I found to be other than considered and appropriate.
[29] see, for example, her evidence at T 118, T 122, T 124-125
51 In the circumstances, I consider that the approach which I should adopt as to whether it is safe to rely upon the evidence given by Ms Nguyen is that I should not disregard her opinion as expressed in the course of her evidence, but rather that I should rely upon that opinion with caution. But for her criminal history I would have found the evidence of Ms. Nguyen to be compelling upon the issue of the severity of the consequences to the plaintiff of her psychiatric injury. I am satisfied in all the circumstances however that I should be more guarded in relying exclusively upon Ms Nguyen’s evidence in this regard.
Further Medical Evidence Relied upon by the Parties
52 The following medical reports were tendered by the parties:[30]
[30] Having regard to the fact that the plaintiff’s application is confined to one based upon the consequences of her psychiatric illness I consider it relevant to specifically discuss only the medical evidence relevant to this issue although I have read and taken into account all the medical reports tendered by the parties.
•
Mr T Dinh, a psychologist, who in a report dated 29 November 2005, expressed the opinion that the plaintiff presented with a Pain Disorder associated with both psychological factors and a chronic general medical condition, as the result of which she had developed an Adjustment Disorder with a Depressed Mood which was Chronic.
•
Professor L Dennerstein, who in a report dated 13 January 2010, expressed the opinion that the plaintiff had developed a Chronic Pain Disorder related to her physical injury and psychological factors, in response to which she had developed a Mood Disorder. She expressed the opinion that the plaintiff’s likelihood of ever returning to work was extremely poor.
•
Dr David Weissman, psychiatrist, in a report dated 18 May 2009, expressed the opinion that the plaintiff presented with a Chronic Major Depressive Disorder of moderate severity and most probably a Chronic Pain Syndrome. He opined that the diagnostic criteria for a Major Depressive Disorder had been met and that the plaintiff’s condition had stabilized. As to the plaintiff’s working capacity he commented:
“Overall – on purely psychiatric grounds alone, her capacity for partial or suitable duties on a part-time basis is equivocal. However, when one considers her situation as a whole, she is probably totally incapacitated for all work as mentioned.”
In a further report dated 22 July 2009, Dr Weissman considered the reports of Ms Nguyen, Dr Shan and the report of Dr Jaworowski dated 25 August 1997 in which Dr Jaworowski had expressed an opinion as to the effect of the plaintiff’s prior accident upon her psychiatric state. Having considered those reports, Dr Weissman expressed the opinion that:
“If the plaintiff was free or relatively free of the depressive symptoms at the beginning of 2005, not receiving any psychiatric, psychological or psychotropic treatment, and leading a reasonably good quality of life and level of function, then on the balance of probabilities, I estimate that she would not have been suffering from a Depressive Disorder and Pain Syndrome at present, in the absence of the injury alleged on the 29th November 2005. In other words, if she was free of symptoms and functioned well in early 2005 then, in the absence of the alleged injury of 29 November 2005 on the balance of probabilities she would have continued to be well at this point in time.”
I found the opinion of Dr Weissman to be the most persuasive of the various reports relied upon by the parties. The analysis in his report was well reasoned and the basis upon which he reached his conclusions was explained and was, I consider, logical. I also considered the report of Dr Dennerstein to be internally consistent. In so far as Dr Dennerstein agreed substantially with the opinion expressed by Dr Weissman, I considered these two reports to present opinions which were reliable particularly given the findings which I have made as to the credit and reliability of the plaintiff.
•
Dr N Rose, a psychiatrist, who in a report dated 8 January 2010, expressed the opinion that in accordance with DSM-IV, the plaintiff was suffering from Major Depression. He commented:
“I am in complete agreement with Ms Nguyen, her treating psychologist, about the diagnosis and the need for treatment. I would suggest that your client’s psychiatric injuries are now moderately severe and that they are chronic. It is clear that they are a direct result of her shoulder injury which has caused chronic pain and limitations in movement.”
As to the plaintiff’s capacity for work, Dr Rose commented:
“This worker has absolutely no work capacity. The lack of work
capacity is likely to be indefinite.”
I note that in expressing his opinion, Dr Rose obtained a history that the plaintiff had given up reading and listening to music, and that she did almost nothing around the house. It is submitted on behalf of the defendant that Dr Rose appears, in expressing his opinion, to have formed the view that the plaintiff’s capacities are somewhat less than those which she actually demonstrates. For example, he makes no comment as to the plaintiff’s involvement in visiting the local nursing home, and the history he obtained that the plaintiff had given up reading is clearly inaccurate having regard to the plaintiff’s evidence as to her practice in attending both the local library and a library at Flemington.
I accept these criticisms made by the defendant and although there could be no certainty that in the presence of an accurate history the opinion expressed by Dr Rose would be different to that expressed in his report, the issue raised is clearly relevant to the weight which I ascribe to his opinion.
•
Dr Michael Epstein, a psychiatrist, in a report dated 31 January 2008, expressed the opinion that as the result of her injury of 29 November 2005, which led to problems with the plaintiff’s left shoulder, left arm and neck which have persisted, the plaintiff had developed a Chronic Adjustment Disorder with Depressed Mood and Anxiety. He opined that the plaintiff’s prognosis for improvement was poor, that she required continuing psychological treatment, that she had no capacity to work and that this lack of capacity related to her physical and psychiatric symptoms.
In a further report dated 6 June 2008, Dr Epstein expressed the opinion that the plaintiff was not suffering from a psychologically-based Pain Disorder and that the major cause of her pain arose from an organic condition. In expressing this view, Dr Epstein commented that he was opining outside an area of his expertise. He further expressed the opinion that the plaintiff’s psychiatric state appeared to be secondary to her physical condition and that the major factor restricting the plaintiff’s capacity to work arose by reason of her physical condition. Dr Epstein’s opinion in this regard is clearly based on his view that the plaintiff was not suffering from a psychologically-based Pain Disorder and that her organic condition was sufficient to explain the level of pain and disability which she was experiencing.
Having regard to the opinions of:
(i)
Mr Ian Jones, an orthopaedic surgeon, who in January 2008, expressed the opinion that the plaintiff’s presenting symptoms were clouded by a marked functional component in both her symptoms and signs;
(ii)
Mr Robin Williams, who in a report dated 31 January 2008, opined that the plaintiff presented with a type of Chronic Pain Syndrome and that the symptoms she displayed at clinical examination were out of proportion to the physical abnormalities in her cervical spine in the left shoulder;
(iii)
Dr C Thomas, a consultant in rehabilitation and pain medicine, who in a report dated 6 May 2008, expressed the opinion that there were non-organic factors contributing to the plaintiff’s overall pain experience and her presentation;
(iv)
Mr John O’Brien, an orthopaedic surgeon, who in a report dated 1 June 2009, expressed the opinion that whilst the possibility of the presence of some shoulder pathology could not be excluded, the clinical diagnosis for the plaintiff’s presentation was that of Chronic Pain Syndrome;
(v)
The opinion of Dr Daniel Lee, a senior principal rehabilitation registrar, who opined in June 2006, that:
“Usually inflammatory type pains would tend to desist gradually although her pain does not particularly fit this pattern. I am concerned that her mood may complicate her presentation and until this is properly redressed, then it may be difficult for us to move forward.”
(vi) The opinion of Dr Dimitroff that the primary diagnosis with respect to the plaintiff’s presentation involved the presence of a Pain Syndrome,
I do not accept the opinion expressed by Dr Epstein that the plaintiff’s incapacity is primarily organically based.[31] Further, I consider that it is likely that his opinion in this regard must have influenced the position taken by him as to the consequences of the plaintiff’s Chronic Adjustment Disorder with Depressed Mood and Anxiety upon her capacity to work. For this reason I do not find Dr Epstein’s opinion to be persuasive on this issue.
[31] Insofar as it is asserted that any disentangling is required between the effect of the plaintiff’s physical injury upon her and that of her psychiatric injury, the evidence of these six medical practitioners satisfies me that whilst the plaintiff continues to experience organic symptoms of pain caused by the physical injuries suffered by her in the incident, the plaintiff’s organic injury bears only a minor responsibility for her presentation and the major cause of her current incapacity stems from her psychiatric injury.
•
Dr Shan, a psychiatrist, in a report dated 24 January 2008, expressed the opinion that the plaintiff suffered from a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was of the opinion that the level of this Disorder was not such as to impact upon the plaintiff’s capacity to work. The thought process by which Dr Shan came to this position is not apparent from his report, and for this reason, together I prefer the opinions expressed by Dr Dennerstein and Dr Weissman on this issue.
•
Dr M Nathar, psychiatrist, in a report dated 13 July 2006, opined that he was not able to diagnose the presence of a psychiatric illness per se in the plaintiff’s presentation apart from a Pain Disorder in which the plaintiff’s physical injuries had been a significant contributing factor. Dr Nathar further opined that from a psychiatric viewpoint, the plaintiff had a work capacity for any work within her physical limitations. Having regard to the date of Dr Nathar’s assessment, and the obvious difference of opinion between Dr Nathar and all other psychiatrists who expressed opinions in the case, each of whom have been satisfied that the plaintiff suffers from a psychiatric condition which has been described, at its most moderate by Dr Shan as involving a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood, and at its most serious as involving a Chronic Major Depressive Disorder which satisfies the criteria laid down by DSM-IV, I do not find the opinion of Dr Nathar persuasive.
•
Dr Stephen Stern, a psychiatrist, in a report dated 14 November 2007, expressed the opinion that the plaintiff was suffering from a Chronic Major Depressive Disorder with Anxiety and that her presentation satisfied the DSM-IV criteria. He opined that the plaintiff’s psychiatric state was related to her work injuries of 29 November 2005 and that her employment was a significant contributing factor. Having expressed these views however, Mr Stern opined that from a psychiatric aspect alone, the plaintiff was fit for her pre-injury work and that her activities of daily living were not limited by psychiatric factors. I consider there to be an internal inconsistency between the diagnosis that the plaintiff was suffering from a Chronic Major Depressive Disorder with Anxiety arrived at by Dr Stern and his conclusion that this condition had no impact upon the plaintiff’s ability to work or to engage in the activities of daily living. For this reason I do not find his opinion persuasive.
Findings as to the Plaintiff’s Capacity to Engage in Suitable Employment
53 Whilst it is clear that the plaintiff’s psychiatric presentation is influenced to some degree by factors other than the injury and physical incapacity suffered by her by reason of the accident of 29 November 2005, I am satisfied that that incident was primarily responsible for the condition with which the plaintiff presents at this time which is, in my view, appropriately described as a Chronic Pain Syndrome.
54 Having regard to the differing views expressed by the psychiatrists who have examined the plaintiff on a medico-legal basis, the nature and extent of the plaintiff’s psychiatric condition and in particular, the nature of the consequences of the condition upon the plaintiff’s capacity to work, is not easily determined. In commenting upon the various psychiatric opinions, I have expressed views as to the opinions which I consider to be more persuasive than others and I have given reasons for those views.
55 The defendant has referred to the plaintiff’s obvious capacity to engage in some activities of daily living, including the ability to drive her car for short distances; travel on public transport considerable distances to attend her friend who resides in Flemington; attend various libraries and to visit and provide support to elderly members of the Vietnamese community. Whilst it is beyond argument that these activities demonstrate a capacity in the plaintiff to perform them, in my opinion, they provide little assistance in determining whether the plaintiff’s psychiatric state is such as to preclude her from engaging in suitable employment .
56 In a case such as the present in which the consulting psychiatric opinions are based so heavily upon the history obtained from the plaintiff and the impression conveyed as to her level of functioning at one particular point in time,[32] my findings as to the veracity and reliability of the plaintiff as a witness form a crucial plank in the process involved in determining which psychiatric opinions I should accept and whether the opinions which I do accept provide an accurate measure of the consequences of the plaintiff’s psychiatric injury upon her.
[32] Namely the date of the relevant consultation
57 I am firmly of the view that Dr Dimitroff and Ms Nguyen, having regard to their long relationship with the plaintiff, are best placed to express opinions upon these issues. Whilst the criminal activity in which she has been engaged calls into question the reliability of the opinion expressed by Ms Nguyen, I consider it appropriate to rely on her opinion in the circumstances in which it is consistent with and supports the opinion of Dr Dimitroff.
58 As to the consulting opinions relied upon by the parties, I find the opinion of Dr Weissman, who examined the plaintiff on behalf of the defendant, as being well-reasoned and persuasive. The opinion of Professor Dennerstein, in my view, falls into a similar category to that of Dr Weissman. Whilst the opinion of Dr Rose suffers in the manner to which I have referred, I consider it safe to rely on the opinion as buttressing my confidence in accepting the views expressed by Dr Dennerstein and Dr Weissman. In turn, I am influenced in accepting these two opinions, not only because they are well-reasoned, but also because they are consistent with and support the opinion which has been expressed by the plaintiff’s treating general practitioner, Dr Dimitroff, and that of Ms Nguyen. further the consistency between the opinion expressed by Dr Weissman and that of Ms Nguyen increases my confidence in relying upon the latter opinion.
59 Having regard to the findings which I have made, I am satisfied:
[33] In making this finding, I rely primarily on the opinion expressed by Dr Weissman and that of Dr Dimitroff, as supported by the opinions of Professor Dennerstein and, to a lesser extent, Dr Rose and Ms Nguyen.
(i) that at the time at which she commenced employment with the defendant, the plaintiff was not suffering from any psychiatric condition or illness; (ii) that the primary cause of the plaintiff’s current presentation lies in her involvement in the accident of 29 November 2005.[33] 60 I am further satisfied that by reason of the time which has now elapsed between the onset of the plaintiff’s symptoms and the present date:
[34] I make this finding taking into account the plaintiff’s age, level of education, employment history, her language barrier and her prospects of retraining which, given the nature of her psychiatric condition, I consider to be negligible .
(i) the effect of the plaintiff’s of psychiatric injury has stabilized in so far as it effects her capacity to work and that it is such that the plaintiff has no real capacity to engage in suitable employment (ii) the effect of the incident has been reduce the plaintiff’s capacity to work such that, whilst at the time at which she was injured she possessed a restricted capacity for employment by reason of her pre-existing back condition, she is now unemployable, and that she will remain so .[34] 61 In the circumstances, I am satisfied that the effect of the incident has been to cause the plaintiff to decompensate from a person capable of a restricted range of varied employment to one who is totally unemployable and that as such, the loss of earning capacity consequences of the plaintiff’s psychiatric injury satisfy the criteria established by the Act in that when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders they may fairly be described as being more than serious to the extent of being severe.
62 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for the pain and suffering and economic loss consequences of the incident which occurred in the course of her employment with the defendant on 29 November 2005.[35]
[35] Advanced Wire & Cable Pty Ltd & Anor. v Abdulle [2009] VSCA 170 (28 July 2009)
63 I will hear the parties as to the precise form of the orders sought and upon the issues of costs.
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