Ormrod v Silcar
[2016] VMC 27
•27 DECEMBER 2016
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.G11120073
| PHILLIP ORMROD | Plaintiff |
| v | |
| SILCAR PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 8 DECEMBER 2016 |
DATE OF DECISION: | 27 DECEMBER 2016 |
CASE MAY BE CITED AS: | ORMROD v SILCAR |
MEDIUM NEUTRAL CITATION: | [2016] VMC027 |
REASONS FOR DECISION
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Catchwords: 130 week termination: Psychiatric condition - Capacity for Suitable Employment - identified suitable employment options - Truck Driver, Labourer or Coxswain – Conclusion: worker has an inability to engage in employment – entitled to weekly payments of compensation from date of termination.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Maurice Blackburn |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Ormrod is aged 61 years and commenced employment with the defendant at the Yallourn Open Cut Mine on 1 May 2008 as a Boilermaker Welder. He had worked at that site for various contractors for a period of 15 years. As a consequence of being harassed and bullied by his supervisor, Mr Ormrod developed a depressive condition which caused him to cease work with the defendant on 30 June 2011. He submitted a WorkCover claim for which liability was accepted by QBE Insurance.
2 Mr Ormrod did manage to return to part time employment with another employer for a limited period as a Coxswain and has performed voluntary work for the Red Cross as a Patient Transport Driver but was unable to maintain those activities. On 5 September 2013, QBE gave notice to him of its intention to terminate his weekly payments of compensation as from 20 December 2013 on the grounds that he had a ‘current work capacity’ or alternatively, if he had ‘no current work capacity’ it was not likely to last indefinitely. In particular, QBE contends that Mr Ormrod has a capacity to engage in suitable employment as a Truck Driver, Labourer or Coxswain. Mr Ormrod has been in receipt of the disability support pension since his payments were terminated.
3 Mr Ormrod contends that he has no current work capacity which is likely to last indefinitely. He gave evidence as did his treating General Practitioner, Dr Buras. The parties tendered numerous medical reports, certificates and Vocational Assessment reports. The medical evidence concerning diagnosis whilst varied is not contentious when considering the issues to be determined. Mr Ormrod is diagnosed as having depression (Dr Buras), or depression and a post-traumatic stress disorder (Ms Murphy – Psychologist), or a chronic major depressive disorder (Dr Gill) or an adjustment disorder with depressed mood of moderate severity (Dr Das and Dr Douglas).
4 Mr Ormrod gave evidence that he lives at McLoughlins Beach, 20km east of Yarram in South Gippsland which is an isolated fishing village on the 90 Mile beach. He said that he did not complete Year 11 education and commenced work after leaving school with the State Electricity Commission of Victoria as an apprentice Boilermaker Welder and attended the local Tafe to obtain his qualifications. He told the court that he completed his apprenticeship in 1976 and has worked in that occupation for numerous employers throughout Australia and New Zealand. He said that he has worked at the Yallourn Open Cut site for numerous employers for 15 years prior to commencing employment with the defendant on 1 May 2008.
5 Mr Ormrod told the court that from the first day he commenced employment with the defendant he had issues with his immediate supervisor who would regularly ignore him, abuse him and yell at him. He said that he tolerated this behaviour until he was overwhelmed by it and he ceased work on 30 June 2011. He said that he has not returned to work with the defendant since that date. Mr Ormrod told the court that he has been treated by Dr Buras and Ms Murphy, Psychologist and has also seen Dr Agarwaal, Psychiatrist from time to time. He told the court that WorkCover made a decision to cease paying for his psychological treatment a number of years ago which he did not challenge.
6 A Vocational Assessment report from Recovre dated 14 March 2012 identified suitable employment options as being; Boilermaker, Truck Driver, Labourer and Coxswain. Mr Ormrod told the author of the report, Mr Bentley that he would prefer to work outdoors in a role such as a Coxswain. At that stage, Mr Ormrod was certified as being unfit for all work. Mr Bentley noted that Mr Ormrod would require retraining if a truck driving or coxswain job was located. A further report from Recovre dated 20 June 2013, identified suitable employment options as being; Truck Driver, Labourer and Coxswain. From August 2013, Dr Buras certified Mr Ormrod as being fit for alternative duties. At that stage, Mr Ormrod was concentrating on retraining as a Coxswain as he took the view that this form of employment was the only way he would be able to re-enter the paid workforce. Mr Bentley reported that he was unable to locate a prospective employer in this field and that Mr Ormrod would need to obtain a Coxswains Certificate. Other qualifications he would require included; Pre-Sea training, obtaining a Level II Certificate in First Aid and learning how to operate a Marine Radio. Initially, his application for retraining as a Coxswain was rejected by QBE on the basis that it would be unlikely to lead to new employment opportunities apart from the possibility of self- employment. He ultimately undertook the course between October and December 2013 with the cost of the course being shared between him and QBE.
7 Mr Ormrod gave evidence that he was able to obtain part-time employment with the help of Recovre on a boat on the Thompson River in Sale for two scheduled trips per day or approximately 10-16 hours per week for a period of 3 months. He said that the boat could carry up to 35 passengers but on average they would only have 6 to 8 passengers. He said that his role was limited to steering the boat with the owner of the boat acting as the ‘spruiker’ for the passengers. He said that because of his condition he was not always available and capable to work when required and that after the Centrelink subsidy to the boat owner ended, he was not offered further employment. In cross examination, he conceded that he would have continued working in this job on a part-time basis if it remained available to him. Mr Ormrod said that he does not believe he could operate his own boat as it would involve interaction with large numbers of people which would cause a deterioration in his mental health. He also told the court that his coxswain Certificate restricts him to operating boats up to 12 metres in length and limited to no more than 15 miles offshore. He said he does not consider he would be able to perform this job on a regular and fulltime basis.
8 Mr Ormrod also told the court he investigated the possibility of being employed as an Occupational Health & Safety representative at a Sawmill in Yarram owned by Carter Holt Harvey. He said that he attended on one occasion but soon realised he would not be able to do the job as he saw too many health and safety issues which would overwhelm him and cause his psychiatric condition to deteriorate. He also told the court that he did not believe he would could return to work as a truck driver as he has never driven a truck, does not have the requisite license and his sleep disturbance causes him to be drowsy during the day which would not be conducive to performing that role. Dr Buras told the court that in order for Mr Ormrod to obtain a heavy goods endorsement would have required him to undergo a cardiologist assessment that he was medically fit to perform that work.
9 Mr Ormrod gave evidence that he performed voluntary work as a Patient Transport Driver with the Red Cross for a number of months in 2015. He said that he was initially required to transport patients to hospitals situated in Sale, Traralgon and Melbourne but found that the long distance travelling was too tiring. He said that he was re-allocated to local areas only but due to a misunderstanding by him due to his confusion concerning paperwork he was given he failed to transport a patient on one occasion which led to him being told that he was “not suited for the job” and further voluntary work was not offered to him.
10 Mr Ormrod said that his psychiatric condition makes he feel “old and useless”, that he suffers from sleep disturbance, lacks motivation and has become socially withdrawn. He also said that he would not be able to perform the suggested suitable employment as a Labourer because of his psychiatric state and because he suffers from knee soreness which would restrict his physical ability to perform such duties.
11 In cross examination, he disputed that he would be able to return to self-employment as a Coxswain due to the costs involved, the lack of demand for such services at or near McLoughlins Beach and his inability to deal with customers because of his psychiatric condition. He also disputed that he could return to work as a Boilermaker Welder due to his inability to concentrate for long periods which is a fundamental requirement of that occupation.
12 Dr Buras gave evidence and reports prepared by him and dated 25 August 2013, 14 August 2014, 31 August 2014 and 16 November 2016 were tendered. Dr Buras reported that he first saw Mr Ormrod on 3 May 1993 and that he had a past history of depression for which he had received intermittent treatment at Latrobe Community Health between August 1988 and 2011. In relation to the subject matter of this claim, Dr Buras obtained a history from Mr Ormrod of bullying in the workplace and diagnosed him as suffering from depression. As a consequence, he increased his Sertraline medication to 100 mg per day and referred him to psychiatrist, Dr Agarwaal, who changed his medication to Cymbalta. Dr Buras also reported that Mr Ormrod suffers from hypertension, dyslipidaemia, gout and asthma. He noted that since ceasing work and no longer being exposed to welding fumes improved his asthma and in August 2013, he suggested that it would be beneficial for Mr Ormrod to return to work in suitable employment as soon as possible. Dr Buras told the court that he changed the WorkCover certificates he was providing at that time from being unfit for all work to having a capacity for alternative employment in order for Mr Ormrod to be retrained. In August 2014, Dr Buras opined that Mr Ormrod would always be less resilient in managing emotional stress and that his blood pressure was variable and required constant monitoring.
13 In his report dated 16 November 2016, Dr Buras noted that Mr Ormrod was attending on a monthly basis, was continuing to receive psychological counselling and is still being prescribed Cymbalta which can cause drowsiness. He noted that Mr Ormrod continued to experience symptoms of depression including weepiness, tearfulness, poor concentration, irritability, poor motivation, sleep disturbance, loss of libido, appetite disturbance, low mood and has difficulties with concentration. He reported that Mr Ormrod continues to have impaired emotional resilience and becomes easily upset when confronted with minor difficulties or interacting with people so he avoids them. He opined that Mr Ormrod has become deconditioned as a consequence of not working for more than 5 years. He reported that his inability to obtain work as a Coxswain has had a significant adverse effect on his emotional well-being, depression and resilience. He considered that ‘in reality’ Mr Ormrod has no capacity for work which is likely to last indefinitely and he is therefore unemployable. He opined that Mr Ormrod would be incapable of labouring work because of his arthritic condition and his deconditioning. He did not consider that work as a truck driver would be feasible due to his drowsiness or work as a Coxswains because of his drowsiness and social impairment. Dr Buras did not consider that Mr Ormrod would be able to return to work as a boilermaker welder because of his difficulties with concentration.
14 During cross examination, Dr Buras told the court that he considered Mr Ormrod was unemployable due to his incapacity for work and his inability to find suitable employment. He agreed that if he was able to find suitable employment his mental state would improve but he would be unable to attend work on a consistent basis and would need to be ‘nursed through’ and that he ‘lives in hope’ that Mr Ormrod will be able to return to work.
15 Ms Murphy, Psychologist, reported that she has been providing psychological counselling to Mr Ormrod from 28 August 2012. She diagnosed him as suffering from depression and post-traumatic stress disorder symptoms. She opined that Mr Ormrod is a poor candidate to return to work in his previous occupation and noted that his difficulty coping with his symptoms of depression caused problems within his marriage. In her report dated 3 April 2016, she noted that Mr Ormrod has an extremely poor memory and attention, has difficulty concentrating and his prevailing mood is one of sadness and despair with associated sleep disturbance, tiredness and loss of energy.
16 Dr Gill, Consultant Psychiatrist, assessed Mr Ormrod on behalf of his lawyers on 31 August 2016. Dr Gill obtained a history from Mr Ormrod that he is prescribed 120 mg of Cymbalta, 30 mg of Seroquel and more recently, Mirtazapine, an antidepressant. Mr Ormrod told him that he only manages 5 to 6 hours sleep each night which is broken, that he does not feel any happiness, has low energy, a lack of motivation, is anxious in social situations and is withdrawn. Dr Gill referred to a report by Ms McMillan from Work Solutions dated 13 April 2016 (which was not tendered) which noted that she considered Mr Ormrod’s future prospects for employment were limited. Dr Gill diagnosed that Mr Ormrod is suffering from a Chronic Major Depressive disorder. On the basis of Mr Ormrod performing voluntary work with the Red Cross as at the date of his assessment, he considered him to have a limited work capacity but did not consider he would be able to return to his pre-injury employment or anything more than low stress work with limited hours.
17 Dr Das, Psychiatrist, assessed Mr Ormrod for QBE on 13 February 2013. He assessed Mr Ormrod as suffering from an adjustment disorder with depressed mood of moderate severity along with features of traumatisation. On the basis that there had been some remittance of symptoms since he ceased work 2 years previously, he considered that Mr Ormrod was fit for suitable alternative employment and/or retraining. He considered that work as a Coxswain would be appropriate but not work as a truck driver.
18 Dr Douglas, Psychiatrist, assessed Mr Ormrod for QBE on 25 June 2013. He diagnosed Mr Ormrod as suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Douglas opined that Mr Ormrod would be fit for suitable employment and agreed with Dr Das that work as a Coxswain may be appropriate if he was able to interact with customers and had a calm and focused mind considering that he would be responsible for their safety. He expressed the opinion that if Mr Ormrod could perform that role he should also be able to work as a truck driver or labourer.
Conclusion
19 I found Mr Ormrod to be a credible witness and a person who continues to be significantly affected by the bullying he was subjected to in the course of his employment. He is suffering from a major depressive disorder and continues to take significant amounts of anti-depressant medication. His ongoing symptoms include; poor concentration, sleep disturbance, drowsiness and low mood causing an impaired emotional resilience and social impairment.
20 Notwithstanding the ongoing effects of his condition, he has attempted to return to work and has fully engaged in rehabilitation in an attempt to return to work as a productive member of the workforce. This has included him contributing to the costs of obtaining a Coxswains certificate. He has not been lacking in motivation in attempting to return to work in suitable employment as is apparent by the work he undertook on the River boat in Sale and the voluntary work he did with the Red Cross. His efforts have demonstrated that his psychiatric injury does not allow him to return to work ‘as a settled or established member of the wage earning workforce’.
21 In relation to the medical evidence, I accept and prefer the medical opinion of Dr Buras and Dr Gill. In particular, Dr Buras has been Mr Ormrod’s treating doctor for over 23 years and has seen him on a regular basis for the past five years. He considered each of the suggested ‘suitable employments’ and provides cogent reasons why he does not consider Mr Ormrod is capable of performing them on a regular and full-time basis. Unlike Dr Das and Dr Douglas, who assessed Mr Ormrod over 3 years ago and concluded that he did have a capacity for employment, Dr Gill assessed Mr Ormrod as recently as 3 months ago and concluded that he had a limited work capacity and could do nothing more than ‘low stress work with limited hours’.
22 After considering the nature and extent of his condition, his medication intake and their effects and his personal circumstances including; his age (61 years), his education level (Year 10), his limited work experience and the remoteness of his residence, I find that Mr Ormrod has ‘no current work capacity which is likely to last indefinitely’.
23 Accordingly, he is entitled to weekly payments of compensation from 21 December 2013 in accordance with the provisions of the Act.
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