Nikolovska v Victorian WorkCover Authority
[2023] VCC 2348
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-03657
| SYLVANA NIKOLOVSKA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 15 May 2023 and 4 September 2023 | |
DATE OF JUDGMENT: | 15 December 2023 | |
CASE MAY BE CITED AS: | Nikolovska v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2348 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – long-term psychological and psychiatric injury arising from work – whether the plaintiff has satisfied the threshold test for “serious injury” – aggravation of pre-existing psychological condition – whether the plaintiff’s work-related psychiatric injury is the cause of her inability to continue at work
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The application for serious injury certificate in respect of pain and suffering and loss of earning capacity is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Verduci Lawyers |
| For the Defendant | Mr A Saunders with Ms F Blair | Hall & Wilcox |
HIS HONOUR:
Preliminary observations
1In judgment writing courses, the instructors advise participants, such as judges, that the prime real estate is the first few paragraphs of the judgment. In this case, I have elected to make preliminary comments about this case.
2The application for serious injury made by the plaintiff was extraordinary in two aspects. First, the plaintiff swore an affidavit on 4 May 2022 in support of her application. The affidavit was thirty-five pages in length and had ninety-four paragraphs. The plaintiff’s case was that she suffered a psychiatric injury as a result of bullying at her place of employment. Not once in the affidavit of thirty-five pages and ninety-four paragraphs did the plaintiff refer to any previous psychological or psychiatric difficulties she may have encountered during the course of her life up until the time of the bullying at work.
3This omission became the central issue in this case, as the defendant attacked her credit and her inability to substantiate the level of aggravation required under the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to obtain a certificate for pain and suffering and loss of earning capacity. Consistent with the affidavit, the plaintiff did not give a history to medical examiners of her prior psychological difficulties, which became the subject of evidence in the hearing.
4The second extraordinary factor in this case was on day one of the hearing, which was 12 May 2023, the plaintiff was unable to continue giving her evidence due to a psychiatric reaction over the luncheon break that same day. The twelfth of May was a Friday. I adjourned the further hearing of the serious injury application to Monday, 15 May 2023.
5On 15 May 2023, I was informed that the plaintiff was unable to attend at court to give evidence due to her psychiatric condition. A medical report was filed in support. The medical report requested that the plaintiff be able to give her evidence via videolink. I refused that application.
6The further hearing of the serious injury application ultimately took place on 4 September 2023. The plaintiff gave her evidence in court.
7The plaintiff has not worked since 5 March 2019. The plaintiff has been on weekly payments since 5 March 2019 to the time of hearing. The plaintiff continues under the treatment of her general practitioner, Dr Roshan Irani, and a consultant psychiatrist, Dr Ravindra Srinivasaraju (“Dr Ravi”). The plaintiff is consistently certified as unfit to undertake her employment or any alternative employment. Dr Ravi has been her psychiatrist since 11 December 2019.
8In the event that a full history of the plaintiff’s psychological problems she had suffered prior to 2014-2015 had been given to doctors, and stated in her affidavit, I would have expected the Victorian WorkCover Authority (“the VWA”) to have approached her claim for serious injury in a completely different manner. In short, the VWA would have accepted that the plaintiff is unable to engage in any suitable employment as a result of her psychological or psychiatric injury arising out of, or in the course of, her employment. Unfortunately, that was not the case, and the hearing and its attendant expenses had to take place.
Reasons for Judgment
9The plaintiff brings this application by way of Originating Motion dated 5 September 2022. The plaintiff applies for leave to bring proceedings to recover both pain and suffering and loss of earning capacity damages as a result of a psychiatric injury received in the course of her employment with the Department of Families, Fairness and Housing, previously known as the Department of Health and Human Services (“the employer”). The plaintiff alleges that her injury occurred as a result of a number of incidents between late 2013, until the last day she worked, on 5 March 2019.
10The plaintiff seeks certification for serious injury under part (c) of the definition of “serious injury” under the Act.
11The following evidence was adduced in the course of the hearing:
· The plaintiff gave evidence and was cross-examined on 12 May 2023 and 4 September 2023. The plaintiff tendered the following documents:
§Exhibit “A” from the Further Amended Plaintiff’s Court Book (“PCB”), which is dated 28 August 2023, pages 22 to 190, inclusive.
· The defendant tendered the following documents:
§Exhibit 1 from the Amended Defendant’s Court Book (“DCB”) dated 4 September 2023, pages 4 to 14, pages 24 to 25, page 76, pages 82 to 136 and pages 263 to 266.
§Exhibit 2 is a summary of the plaintiff’s leave records for the period between 2013 and 2019.
12Mr Saunders, on behalf of the defendant, identified the following issues to be decided:
(a) whether the plaintiff has established that the incidents alleged between 2013 and 2019 have resulted in an aggravation of her psychiatric injury to the extent which satisfies the test under the legislation;
(b) the plaintiff has failed to establish that her condition is severe, as required under the legislation;
(c) the credit of the plaintiff;
(d) whether the plaintiff’s condition is a permanent psychiatric or mental disorder or disturbance.
The statutory scheme
13The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
14The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment with the employer between 2013 and 2019;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) sub-section (2)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in a range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2] Barwon Spinners (ibid) at paragraph [33]
[3] Ibid
15I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
16The plaintiff was born in 1971 and is now fifty-two years of age.[4] The plaintiff was educated to Year-12 level at Footscray Girls High School.[5] The plaintiff was married in 1992 and from that union had two children, now aged twenty-five and twenty-one years old. The plaintiff has been a divorced woman since 2012.
[4]PCB 23
[5]PCB 23
17The plaintiff had previously worked in a business known as Southern Cross Sheep Skins Pty Ltd as a general hand. She then moved to data-entry work in relation to sea-and-air cargo with Data Com. Subsequent to that work, she then worked at Westpac Banking Corporation in a call centre.
18In October 2000, the plaintiff commenced her employment with the employer for the State of Victoria. She was an administrative consultant in housing and based at 12 Churchill Avenue, Ascot Vale.[6] The plaintiff remained in the employment at that premises until the date she last worked, on 5 March 2019.
[6]PCB 23
Injury with the employer
19The plaintiff sets out in her affidavit, in detail, the circumstances in which her psychiatric injury occurred. For the purposes of these Reasons for Judgment, I will not detail them in full, as they are set out in a lengthy manner in the plaintiff’s affidavit sworn on 4 May 2022 and was part of the exhibited Court Book. In summary form, the plaintiff alleges that she was bullied, undermined and subject to humiliating treatment from her supervisor, Lynette Linton, and fellow worker, Gordana Amos, over the period of her employment between 2013 and 2019.
20The plaintiff lodged a claim for compensation with the defendant and the claim has been accepted. The plaintiff has been on WorkCover payments since 2019. I accept that the psychiatric injury complained of by the plaintiff arose out of and in the course of her employment with her employer.
21I accept that the plaintiff has had previous psychological difficulties and setbacks. In particular, the plaintiff sought the assistance of her general practitioner and a psychologist, Bridgette Benson, in 2011 and 2012, in respect of the separation and divorce from her husband. The plaintiff attended Ms Benson on two occasions in the latter part of 2011.
22In April 2014, the plaintiff attended upon Dr Stella Kwong, consultant psychiatrist, in respect of the grief that the plaintiff was suffering as a result of her father suffering from cancer. He subsequently died in July 2015. The plaintiff also complained to Dr Kwong about the impact of her divorce upon her. The plaintiff stated in her evidence that those issues of the divorce and grief surrounding her father’s passing were behind her by the time the serious problems at work became unbearable for her. This, in part, was her explanation for not giving a history to the medical examiners about her prior psychological/psychiatric complaints in the past.
23The plaintiff was also cross-examined about an Intervention Order event which occurred in August 2003. There was an entry from the general practitioner’s notes.[7] I accept the plaintiff’s evidence that there was a dispute with her brother’s de facto making allegations about her which gave rise to the Intervention Order proceeding.
[7]DCB 93
24This event occurred a decade prior to any difficulties the plaintiff suffered as a result of her marriage breakdown. I have disregarded that event and circumstances as having any relevance to the determination of this proceeding.
Credit of the Plaintiff
25On some occasions, it is difficult to assess the credibility of a witness who is suffering from psychiatric or psychological complaints. In this case, the plaintiff failed to tell the medical examiners the full history of her prior psychological problems arising from the breakdown of her marriage and the death of her father. The plaintiff’s explanation is that she had put those matters behind her and had continued to work. I accept her evidence in that regard. It is clear in Exhibit 2, that between 2013 and 2016, the plaintiff had an average of approximately 60 days off from work annually. However, in 2017, the days off work rose to 74.63 days and in 2018, to 93.73 days. This time off work is a clear corroboration of the increasing stressors the plaintiff was suffering at her work as a result of the treatment by, in particular, her fellow worker, Gordana Amos. It is also consistent with the notations taken by Dr Irani, her general practitioner at the time.
26I have had the advantage of seeing the plaintiff give evidence over two separate days with a four-month break in between and I accept the plaintiff was giving genuine, and, as far as she could, accurate evidence about her situation and condition. I accept the plaintiff as a credible witness.
Supporting evidence
27The plaintiff’s daughters, Natalie Bogojevski, and Nikolina Nikolovski, prepared affidavits, which were part of the Plaintiff’s Court Book. Neither of those witnesses were required for cross-examination. They clearly set out matters that support their mother’s claim for serious injury.
Medical opinions
The Plaintiff’s medical opinions
Dr Roshan Irani, general practitioner
28Dr Irani has been a medical practitioner at Assure Health Medical Centre and has seen the plaintiff since approximately 2009. Dr Irani prepared four separate medical reports, dated 11 March 2020, 15 August 2020, 27 July 2022 and 25 February 2023. Dr Irani, in her report dated 11 March 2020, clearly has a record of the plaintiff’s complaints about her work situation. At that time, the plaintiff was prescribed 20 milligrams of escitalopram per day. The plaintiff had been referred to a psychiatrist and psychologist at that time.[8] In that report, Dr Irani was of the opinion that the plaintiff could resume work, but at a different workplace and under different management.
[8]PCB 69
29In her second report, dated 15 August 2020, Dr Irani noted that the plaintiff first complained about her team leader in 2009. At that stage, the plaintiff had requested to be referred to a psychiatrist. The next history was in 2013, the plaintiff complained of Ms Amos. Dr Irani’s assessment in August 2020 was that the plaintiff suffered from a Chronic Adjustment Disorder with Mixed Anxiety and Depression in the context of workplace harassment and mistreatment.[9]
[9]PCB 72
30In her report dated 27 July 2022, Dr Irani noted that the plaintiff has been a patient of hers for many years and presented on several occasions about her treatment at work. She noted that the plaintiff would present frequently with migraine headaches from stress and the need to take time off.[10] The history given to Dr Irani in 2013 was that her boss changed to Gordana Amos. The plaintiff maintained to her general practitioner that she was intimidated and scared to attend work.
[10]PCB 73
31When the plaintiff took time off to care for her ailing father, who later died, her boss refused to believe it.[11] Again, in July 2022, Dr Irani was still of the opinion that the plaintiff may be able to continue in her position as team manager in a different environment in a different workplace.
[11] PCB 74
32In her final report dated 25 February 2023, Dr Irani’s opinion was as follows:
“DIAGNOSIS
Working in a toxic environment with no support has caused … [the plaintiff] to develop Major depressive disorder, anxiety and inter personal disorder
PROGNOSIS
… [The plaintiff] needs lot of support and ongoing management with her psychiatrist and psychologist to help with her mental state.”[12]
(sic)
[12]PCB 76-77
33In this last report, there was no mention by Dr Irani of any work capacity by the plaintiff. It is clear from the body of the report that Dr Irani was deferring to the psychiatrist, Dr Ravi, who was suggesting that the plaintiff should be given the advantage of a short stay at the Wyndham Private Hospital, to address her suicidal, hopeless and depressed state.[13]
[13] PCB 76
Dr Ravinda Srinivasaraju, consultant psychiatrist
34I have previously referred to this medical practitioner as Dr Ravi, as indeed he was referred to in this manner during the course of the hearing. Dr Ravi prepared two substantive reports dated 11 September 2019 and 4 December 2022. For the sake of completeness, Dr Ravi also sent two short reports dated 15 May 2023 and 6 June 2023, requesting that the plaintiff had the capacity to give her evidence by videolink. As previously noted in these reasons, I refused that application by the plaintiff.
35In his initial report, dated 11 December 2019, Dr Ravi took a past psychiatric history of the plaintiff, where she stated that she had never had any mental health issues in the past and has not received any support or treatment for her mental health issues. He noted that the plaintiff had a few sessions of psychology through EAP from Allianz.[14] He noted that the plaintiff, at that stage, gave a history of some three years of harassment at her place of employment. Dr Ravi’s diagnosis at that time was Chronic Adjustment Disorder, Mixed Anxiety and Depression, worsening of symptoms in the context of workplace harassment and mistreatment. He placed the plaintiff on 20 milligrams of escitalopram per day for her mood symptoms. Dr Ravi’s opinion was that the plaintiff required some supportive psychotherapy, and had planned to link her with a psychologist.[15]
[14]PCB 79
[15] PCB 80
36In a report dated 24 February 2020, Dr Ravi was of the opinion that the plaintiff had a capacity to re-join her pre-injury role as a senior project officer, but recommended that a new location be found for her.[16]
[16]PCB 82
37Dr Ravi continued to see the plaintiff over a period of time and reviewed her on 17 April 2021 and 27 April 2021.
38In his report dated 4 December 2022, Dr Ravi extended his history taken from the plaintiff to include the fact she had experienced a divorce which had some impact on her self-esteem, but she eventually coped well from the separation. In that report, he continued his diagnosis that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depression, worsening of symptoms in the context of workplace harassment and mistreatment.[17] At that stage, Dr Ravi changed the plaintiff’s medication to 150 milligrams of sertraline per day in December 2022. Dr Ravi’s opinion was that the plaintiff had no capacity for pre-injury employment or new employment services:
“In my previous reviews a year ago, I had suggested that … [the plaintiff] had capacity to rejoin in her pre-injury role as Senior Project Officer, but given the break in relationship with her previous staff supervisors and her inability to re-join in any new location or new employment services, it is unlikely that she will return to any sort of work role in the foreseeable future. … .”[18]
[17]PCB 90
[18]PCB 91
39Dr Ravi then went on, in that report, to state as follows:
“… [The plaintiff] does not have any capacity to rejoin her pre-injury role due to ongoing chronic mental health symptoms and restricted mobility. In addition, she also has persistent depression and anxiety symptoms leading to poor attention and concentration difficulties hindering her work performance. I do not foresee her rejoining any sort of work-force in the future. In addition, she has significant social avoidance due to low self-esteem and negative conditions. Her motivation levels are poor. Her personal care and house-keeping abilities have slowly deteriorated leading to a less productive lifestyle.”[19]
[19]PCB 92
40In his report dated 3 February 2023, Dr Ravi stated as follows:
“During my sessions, … [the plaintiff] is constantly distressed and bursts into emotional distress when she talks about the ordeal and stress from her previous workplace. Being away from a work role and receiving the termination letter from her previous employer has significantly lowered her self-esteem and confidence levels. She often bursts into tears on reading these psychiatric reports and further worsening her depression and anxiety. I have been coordinating multiple treatment modalities which includes a combination of antidepressant medications and psychotherapy strategies, however the response to this treatment strategies has been modest at best so far.”[20]
[20]PCB 94
41In summary, Dr Ravi has been treating the plaintiff from 2013 to 2023, and has seen a deterioration of her condition from a possibility of going back to work, to no possibility of going back to work in any manner whatsoever.
Dr Albert Kaplan, psychiatrist
42Dr Kaplan prepared one report dated 28 November 2022. Dr Kaplan saw the plaintiff by way of videoconferencing and for medico-legal reporting purposes. The plaintiff did not give Dr Kaplan any history of mental health problems prior to her employment difficulties with Gordana and Lynette at work, commencing in or around 2012 and 2013. Dr Kaplan did note that the plaintiff’s father had died and that she was a divorced woman with two children. In his report, Dr Kaplan stated as follows:
“… Her condition is best characterised as a Chronic Major Depressive Disorder associated with Anxiety and Traumatisation Features.
Given the long duration of … [the plaintiff’s] psychiatric condition and the failure of her condition to improve, her prognosis is likely to be unfavourable and her condition is likely to persist for a prolonged period of time.”[21]
[21]PCB 103
43In respect of the plaintiff’s capacity for employment, Dr Kaplan stated as follows:
“… in my opinion … [the plaintiff] has no capacity for work as a result of her psychiatric condition. In my opinion … [the plaintiff’s] psychiatric condition was caused by her work and specifically by the alleged bullying and victimisation to which she was subjected over a prolonged period of time.”[22]
[22]PCB 103
Medical Panel Report dated 31 December 2021
44The plaintiff’s employer’s insurer referred her to the Medical Panel. The referral was lodged on 18 October 2021. The Medical Panel’s opinion was dated 31 December 2021, assessing the plaintiff as having a 25-per-cent psychiatric impairment, and that psychiatric impairment is permanent. The Medical Panel was made up of Dr John King, psychiatrist, and Professor Anne Buist, psychiatrist.[23]
[23]PCB 106
45I note, by way of completeness, the plaintiff did not give the Panel any history of psychiatric or psychological problems or treatment. The Panel stated:
“…that most likely … [the plaintiff] had previously suffered from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood of at least moderate severity relevant to the accepted psychiatric injury; because of the severity of her symptoms which have progressively worsened, the Panel concluded that the current diagnosis of chronic Major Depressive Disorder with anxious distress was more appropriate.”[24]
[24]PCB 111
Associate Professor Shashjit Varma, consultant psychiatrist
46Associate Professor Varma, who was engaged by the employer’s worker’s compensation insurer for assessing the plaintiff, prepared a report dated 15 September 2021. Associate Professor Varma was given a history by the plaintiff that she had no past psychiatric illness. He noted in his report, that Professor Richard Prytula, consultant psychiatrist, in an independent medical examination dated 2 December 2019, diagnosed her to be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and said that the plaintiff does not have a capacity for employment.[25] Associate Professor Varma diagnosed the plaintiff as suffering from Major Depressive Disorder with Anxiety secondary to work-related stress due to bullying and harassment. He noted that the prognosis was guarded.[26]
[25]PCB 119
[26]PCB 120
Dr Dennis Handrinos, consultant psychiatrist
47Dr Handrinos prepared a report dated 1 April 2019. The plaintiff was examined by Dr Handrinos on behalf of the defendant. Dr Handrinos has a history of the employment difficulties suffered by the plaintiff at her place of work. His opinion was as follows:
“In my opinion, such is the acrimony between … [the plaintiff] and management, that she does not have a current work capacity at her usual workplace. After a period of recovery, … [the plaintiff] may be able to work at a different workplace, but at present this too seems unrealistic.”[27]
[27]PCB 131
48Dr Handrinos prepared a supplementary report dated 15 April 2019. He stated as follows:
“… From a psychiatric perspective, the fact that … [the plaintiff] endured a marriage breakdown and suffered the loss of her father does not prove or disprove her allegation of being bullied and harassed. … [The plaintiff] told me about both of these events, but her account was that they were difficult and challenging but her problems at work were separate and even more difficult to cope with.”[28]
[28]PCB 135
49A summary of Dr Handrinos’ opinion is that the plaintiff has no capacity for employment.
Associate Professor Saji Damodaran, consultant psychiatrist
50Associate Professor Damodaran prepared a report dated 30 November 2021 for and on behalf of the defendant in this matter. Associate Professor Damodaran stated as follows:
“In summary, … [the plaintiff] currently has no capacity to perform the inherent requirements of the employment, and I am of the opinion that as she has significantly deteriorated over the last 12 months’ time, she has even lost her self-care and her self-management, her ability to work with a team, ability to meet any demands, and ability to even physically manage some of the tasks.
… [The plaintiff’s] overall prognosis is quite poor, and she is unlikely to recover in the foreseeable future and she would not be able to attend to any gainful employment with any adjustments or modifications with the department in the future.”[29]
[29]PCB 143
51In his report dated 30 November 2021, Associate Professor Damodaran stated as follows:
“… [The plaintiff] was previously diagnosed by me as having an adjustment disorder with mixed anxiety and depressed mood. Over the last 12 months there is significant deterioration of her clinical stage.
…
… [The plaintiff] has no current work capacity. …[The plaintiff] will not regain the capacity to perform any employment with the current employer with modification or restriction or any reasonable adjustment.
…
… [The plaintiff] currently has no capacity to perform the employment duties of a project officer from a psychiatric point of view.”[30]
[30]PCB 145-146
The Defendant’s medical examiners
52The defendant relied upon the opinion of Dr Natalie Krapivensky, who describes herself as an independent medical examiner in psychiatry. Dr Krapivensky’s report is dated 6 March 2023. Dr Krapivensky had the full history of the prior matters relating to the plaintiff concerning the breakdown of her marriage, the death of her father, and the loss of the family home as a result of the marriage breakdown. Dr Krapivensky also noted that the plaintiff had sought the release of $30,000 from her superannuation for the payment of a car. Dr Krapivensky’s report noted as follows:
“… From a psychiatric perspective she has full current psychiatric work capacity for pre-injury and alternative employment. She is able to drive, she is able to look after all her affairs and look after her grandchild and help her daughter.”[31]
[31]DCB 11
53Later in her report, Dr Krapivensky stated as follows:
“It is difficult to know to what extent her employment was a cause of her mental injury. She was already depressed and managing poorly at the time that the difficulties at work started and took very significant time off from work as a result. There is an aggravation of a pre-existing mood disorder. Therefore, I would suggest that her pre-existing depressive illness potentially made her more sensitive to events that were transpiring in the workplace and her circumstances likely caused her to take significant periods of time from work which made her ongoing employment effectively untenable. I already commented on the possible contribution of her hearing deficits and her unwillingness to use hearing aids.”[32]
[32]DCB 11
54Dr Krapivensky went on to state that the plaintiff has a psychiatric capacity to perform her pre-injury duties and hours with a different employer, as her relationship with the same employer has broken down. She further added, she does not have any psychiatric impairment.
55Dr Krapivensky is the only psychiatrist who has examined the plaintiff to say she has no psychiatric impairment. I do not accept Dr Krapivensky’s evidence is accurate, as the plaintiff has consistently been under the care of her treating psychiatrist, including medication prescriptions for her over the whole period from 2019 to the present time. I do not place any reliance on the evidence of Dr Krapivensky.
Bridgette Benson, psychologist
56The defendant relied upon two reports from Ms Benson, psychologist, dated 5 October 2011 and 1 March 2012, concerning prior treatment of the plaintiff. Ms Benson saw the plaintiff after her husband had sought a separation after nineteen years of marriage. The plaintiff attended upon Ms Benson on two occasions: on 15 August 2011[33] and 5 October 2011.[34]
[33]DCB 21
[34]DCB 19
57A later report dated 1 March 2012 noted that the plaintiff did not return after the two contact visits.
58The evidence from Ms Benson is of little or no moment in the assessment of the present application before the Court.
Dr Stella Kwong, consultant psychiatrist
59Dr Kwong is a treating psychiatrist. Dr Kwong treated the plaintiff in the 2013-2014 period. In a report dated 10 April 2014, Dr Kwong noted the plaintiff was a patient of hers and that she had been suffering from a depressive illness because of a tumultuous marriage, which ended a year ago. Dr Kwong noted that the plaintiff’s father had been diagnosed with cancer and her daughter was not coping with her studies. Dr Kwong was requesting the release of $30,000 for the purpose of buying a vehicle for the plaintiff from her superannuation fund.
60In a later letter dated 28 July 2015, Dr Kwong noted that the plaintiff’s tumultuous marriage ended some three years (that is, 2012). In this letter, Dr Kwong was supporting an application to obtain $65,000 for the plaintiff to repay a mortgage and other debts.
61For the sake of completeness, during the course of this application, the only other reference to Dr Kwong was in the medical notes for 19 September 2016, where it appears to be a complaint by the plaintiff about her work. There is no record that the plaintiff ever attended Dr Kwong in 2016. To the extent it is relevant, Dr Kwong was the consultant psychiatrist who treated the plaintiff around the time of the end of her marriage and her father’s death. Dr Kwong has not been involved in the treatment of the plaintiff in respect of her work difficulties, although I note that she has mentioned difficulties with her employment in the letters tendered on behalf of the defendant.
62The preponderance of the medical evidence is that the plaintiff does not have a work capacity presently, or into the foreseeable future. The plaintiff does not have a capacity to engage in any suitable employment. The plaintiff has, as a result of her psychiatric injury from her place of employment, due to bullying and humiliation by fellow members of staff, developed a serious and severe mental health disorder to the extent she cannot engage in employment.
Conclusion
63On the basis of the evidence from the plaintiff, which I accept, and the medical opinions tendered on behalf of the plaintiff and, in part by the defendant, I accept that the plaintiff has suffered a long-term serious mental disorder or disturbance, to the extent it is severe enough to remove her from any capacity to engage in suitable employment for the foreseeable future.
64I grant the plaintiff leave to commence proceedings to recover damages for loss of earning capacity and pain and suffering damages arising out of, and in the course of, her employment between 2013 and 2019.
65I will hear the parties on costs.
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