Osborne v Victorian WorkCover Authority
[2022] VCC 2244
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-19-03522
| JOHN DOUGLAS OSBORNE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2022 | |
DATE OF JUDGMENT: | 16 December 2022 | |
CASE MAY BE CITED AS: | Osborne v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2244 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – damages – pain and suffering – loss of earning capacity – severe mental or behavioural disturbance or disorder – Medical Panel opinion
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Said v Smart Group Management Pty Ltd [2021] VCC 746; Durrant v 101 Warehousing Pty Ltd [2021] VCC 834; Kuluk v Victorian WorkCover Authority [2021] VCC 1262; Ajinvan Pty Ltd v Fry (2001) 3 VR 644; Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria [2013] VSCA 46
Judgment: Leave to plaintiff to issue proceedings for damages for economic loss and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Mr T Storey | Russell Kennedy |
HIS HONOUR:
1In this proceeding, the plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring a proceeding for the recovery of damages for economic loss and pain and suffering consequences on account of injuries sustained in the course of his employment with his employer, Serco Pty Ltd (“Serco”), on or about 4 December 2015. The plaintiff relied only upon paragraph (c) of “serious injury”.
2On 4 December 2015, the plaintiff was employed at an immigration detention centre by Serco and was involved in an incident involving two detainees. In the course of attempting to restrain them, he suffered an injury to his back and also psychological sequelae.
3The plaintiff was able to return to work briefly in a lesser role, but eventually his employment was terminated on medical grounds in 2019. He was, thereafter, able to find alternative employment at a much lesser rate of pay as a mobile security guard, and he worked in that capacity until approximately January or February 2021, when he allegedly suffered a “nervous breakdown” and was admitted to the Ursula Frayne Centre at Footscray Hospital, where he was an inpatient for approximately four weeks. Later, in 2021, he was an inpatient at the Albert Road Clinic for two weeks and has not returned to work since. He is now on a disability support pension, which is based both on his back injury and his psychiatric injuries.
4Pursuant to questions delivered to the Medical Panel on 2 October 2019, the Panel provided an Opinion and Reasons for Opinion on 30 September 2020.
5I set out in full the Medical Panel Certificate of Opinion.
“Question 1 What is the nature of the current medical condition of the plaintiff’s:
(a) spine; and/or
(b) mind?
Answer: In the Panel’s opinion, Mr Osborne is suffering from mild persisting lower back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4, and from an adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity.
Question 2Does any, and if so which, condition identified by the Medical Panel in response to Question 1 result from, or is it materially contributed to by, the accepted injury to the plaintiff’s lower back that arose out of, or in the course of, his employment on 4 December 2015?
Answer: The Panel is of the opinion that Mr Osborne’s mild persisting lower back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4, and his adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, are still materially contributed to by the accepted injury to the lower back on 4 December 2015.
Question 3 Is any, and if so which, medical condition(s) identified by the Medical Panel in response to Question 2 permanent?
Answer: In the Panel’s opinion, Mr Osborne’s mild persisting lower back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4, and the adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, are permanent.
Question 4 Disregarding any psychiatric condition, with respect to any physical injury identified by the Medical Panel in response to Question 2:
(a) Does the plaintiff have:
(i) a capacity to undertake his pre-injury employment as a Detainee Services Officer; or
(ii) a capacity to undertake his pre-injury employment in the transitional training role that he was undertaking at the time of the alleged injury; or
(iii) a current work capacity; or
(iv) no current work capacity?
(b) Does any incapacity for work result from, or is it materially contributed to by, any, and if so which, condition of the lower back identified by the Medical Panel in response to Question 2?
(c) If ‘yes’ to Question 4(b), is any incapacity for work permanent?
Answer:(a) (i) No.
(ii) No.
(iii) Yes.
(iv) No.
(b) The Panel is of the opinion that Mr Osborne’s incapacity for his pre-injury duties as a Detainee Services Officer and in the transitional training role he was undertaking at the time of the alleged injury, was materially contributed to by his mild persisting low back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4.
(c) Yes.
Question 5 Disregarding any physical condition, with respect to any psychological injury identified by the Medical Panel in response to Question 2:
(a) Does the plaintiff have:
(i) a capacity to undertake his pre-injury employment as a Detainee Services Officer; or
(ii) a capacity to undertake his pre-injury employment in the transitional training role that he was undertaking at the time of the alleged injury; or
(iii) a current work capacity; or
(iv) no current work capacity?
(b) Does any incapacity for work result from, or is it materially contributed to by, any, and if so which, psychological condition identified by the Medical Panel in response to Question 2?
(c) If ‘yes’ to Question 5(b), is any incapacity for work permanent?
Answer: (a) (i) Yes.
(ii) Yes.
(iii) Yes.
(iv) No.
(b) Not applicable.
(c) Not applicable.
Question 6If the plaintiff has a current work capacity:
(a) would any, and if so which, of the following roles constitute suitable employment for the plaintiff:
(i) Security Officer (Concierge);
(ii) Security Guard Gatehouse);
(iii) Security Guard (Mobile Patrol);
(iv) Security Guard (Control Room);
(v) Administration Officer;
(vi) Parking Inspector/ Ticket Inspector (e.g. Metro Trains);
(vii) Fleet Allocator?
(b) If any of the roles identified in question 6(a)(i) to (vii) constitute suitable employment, for how many days and hours per week can the plaintiff perform this employment:
(i) currently; or
(ii) in the foreseeable future?
Answer: (a) The Panel is of the opinion that employment as a Security Guard(Mobile Patrol), Administrative Officer, or Fleet Allocator, would constitute suitable employment for Mr Osborne.
(b) In the Panel’s opinion, Mr Osborne could perform the roles identified in question 6(a) on a full-time basis currently, and in the foreseeable future.
Question 7 Further, if the plaintiff has a current work capacity:
(a)What further or additional employment or work is the plaintiff capable of undertaking?
(b) For how many days and hours per week can the plaintiff perform this employment:
(i) currently; or
(ii) in the foreseeable future?
Answer: (a) Not applicable.
(b) Not applicable.”[1]
[1]Medical Panel Certificate of Opinion dated 30 September 2020 at Plaintiff’s Supplementary Court Book (“PSCB”) 52-55; Defendant’s Amended Court Book (“DACB”) 4-7
6I also set out in full the Medical Panel’s Reasons for Opinion:
“ 3. …
4. The reasons for the Panel’s opinion are as follows:
Issues in Dispute
The Panel noted Joint Statement Pursuant to Section 304 of the Workplace Injury Rehabilitation and Compensation Act 2013, provided with the referral, which outlines the alleged injuries to which the medical questions relate, and the facts relevant to the medical questions as agreed (‘the statement’). The Panel also noted the submissions of the parties.
In particular, the Panel noted from the statement that the alleged injuries to which the medical questions relate are:
• Lumbar spine
• Psychological.
The Panel noted from the statement that … [the plaintiff] was employed by the Defendant (sic) as a detainee services officer from October 2009. … [The plaintiff] described to the Panel his pre-injury employment, which at the time of the incident involved a transitional role, training two managers to replace him, in the transport and escort section of an immigration transit accommodation facility.
The Panel also noted from the statement that on 4 December 2015, … [the plaintiff] suffered an injury described as: ‘acute compression type fracture of L4 (lower back)’ when he ‘Hurt lower back during an incident in the dining room on Friday the 4th December 2015’ (‘the incident’). The Panel noted that it is agreed that … [the plaintiff] submitted a claim for compensation on 25 December 2015, which was accepted.
The Panel noted from the referral that he returned to work on alternative duties and gradually increased his hours of work, until September 2016, when he reached his pre-injury hours of work (42 hours per week).
The Panel noted from the referral that the WorkSafe Victoria Agent terminated [the plaintiff’s] entitlement to weekly payments by way of notice dated 2 February 2018, on the grounds that … [the plaintiff] has a current work capacity or, alternatively, that … [the plaintiff] has no current work capacity, but it is not likely to continue indefinitely.
The Panel noted that … [the plaintiff] remained on alternative duties performing administrative work, with restrictions until 26 June 2019, when he ceased work, and his employment was terminated by his employer on 26 November 2019.
The Panel noted that [the plaintiff] lodged a serious injury application dated 20 March 2019, in respect of a physical injury to the lumbar spine and in respect of a consequential psychological injury, and he is seeking leave to commence common law proceedings against the Defendant.
The Panel noted that it is agreed that the issues in dispute relate to … [the plaintiff’s] capacity for suitable employment attributable to his physical injury and mental injury respectively.
Past History
The Panel noted from the referral material, … [the plaintiff’s] history of having had no previous problems with his low back, prior to the incident.
Sequence of Events
… [The plaintiff] told the Panel that he suffered an injury to the lumbar spine on 4 December 2015, when he was trying to defuse an altercation involving a detainee in the dining room of the facility, and in the course of restraining the detainee, the detainee and two other officers fell on top of him.
He said he immediately felt pain in the lower back and consulted a doctor retained by his employer that day, was advised to rest and was prescribed paracetamol. He said that he rested over the weekend and returned to work on the following Monday, but his symptoms failed to settle. He said that an MRI of the lumbar spine was undertaken on 10 December 2015 and a CT-scan of the lumbar spine was undertaken on 11 December 2015, with an acute compression fracture of L4 being diagnosed.
He said that he was provided with a referral for an opinion to a neurosurgeon, but in the event that he could not obtain an early appointment, he was also provided with a referral to the emergency department of a metropolitan hospital, which he attended on 15 December 2015, where he was treated with a back brace.
He said he subsequently also consulted the neurosurgeon on 18 February 2016 and conservative treatment was recommended.
He said he returned to work on alternative duties, performing administrative work in late February 2016, preparing transport orders. He said this was a clerical position and he had no contact with detainees in this role.
He said he subsequently consulted another general practitioner on 2 March 2016 and a repeat CT-scan, and a bone density scan were undertaken on 18 January 2016. The Panel noted that he was diagnosed as suffering from osteoporosis.
He said he gradually increased his hours of work to full time, over a period of twelve months, but did not resume his pre-injury duties. He said a repeat MRI was undertaken on 25 July 2016.
He said that in late 2016, he commenced a training role, performing ‘toolbox’ simulation exercises, which he continued with until 2017. He said he was eventually advised by his employer that he need to move off site, as his presence within the facility would mean that he may be required to respond in an emergency, which he was unable to do. He said he was provided with an alternative role managing visits to the centre, which was located in an offsite office and which required no contact with detainees.
He said a repeat MRI was undertaken on 6 August 2018. He said that he was referred for an opinion to a pain physician, whom he consulted on 22 October 2018. He said he was treated with L4-5 and L5-S1 medial branch blocks on 19 November 2018.
He said that on 26 June 2019, he was advised by his employer that no further alternative duties would be made available to him and he ceased work. He said he has not worked since and he was medically discharged on 26 November 2019.
He said that since then, he had applied for a large number of jobs, and in March 2020, he obtained a three-month position a security supervisor on a construction site. He said that he has since obtained anther security position as a mobile patrol security guard, which involves maintaining the security of high capacity trains being tested for the Metro Tunnel Project. He said that the work is permanent part-time, with variable hours, dependent upon the availability of work, and he is coping well with his current duties.
Current Physical Symptoms
He currently complains of constant pain in the lower back, with referred pain to the back of the right thigh, extending as far as the right knee. He said he has similar, but less severe symptoms in the left leg. He reports no pins and needles or numbness below the knees. Current medications include: Caltrate, Citalopram, Codalgin Forte (occasionally), Diazepam, Panadol Osteopath, Prazosin, Prolia injections (monthly), Sozol, and Valdoxan.
Current Psychiatric History/Symptoms
… [The plaintiff] told the Panel that he was in good health until his injury, working fulltime. He had outside activities of walking, cycling and gardening. He enjoyed building model planes and visiting Melbourne Airport with his grandson.
He said there was no history of any previous psychiatric conditions or substance misuse, although he did smoke 12 cigarettes daily.
He said that he suffered crush fractures to his lumbar vertebrae during a restraint. He thinks there might have been a brief loss of consciousness, but there was no retrograde or post-traumatic amnesia. He did not describe any immediate emotional or psychiatric reaction. He said he has ongoing pain difficulties arising from the work injury despite a variety of treatments and is currently awaiting spinal cord stimulator, scheduled for 21 September 2020.
He said that he returned to work on part-time modified duties and gradually increased his hours. He said that he was running training modules, but ‘it got too much physically because I couldn’t demonstrate the movements’ so he changed to a role in the visits department. He said that because there was no permanent ongoing position available, he was stood down on grounds of medical unfitness on 26 July 2019.
He said that he up skilled in administration and computer matters and security guard training. He said that is made over 80 job applications for new work and obtained new work during security patrols in 2020, but the site was shutdown because of the coronavirus, so he is off work again. He then started new employment eight weeks ago doing working for a Metro Trains project, mainly staff training and graffiti protection role. He said that he is working shifts between 7 ½ and 9 hours, although that will change to 12-hour shifts, up to 5 shifts weekly plus extra shifts as required.
He said that he lives in Werribee with his daughter aged 32, her husband, a grandson aged 15-years and granddaughter aged three months.
He said that he has an old miner’s cottage in Ararat where he does renovation projects, but not currently because of coronavirus. He is independent in personal and self-care. He can drive, travel as a passenger and used public transport.
He currently smokes up to 5 cigarettes daily, but rarely drinks alcohol, does not use illicit drugs or gamble. He said he attends his general practitioner, approximately fortnightly. He attends a pain specialist. He’s been attending a psychiatrist for about 18 months at the pain clinic. He said that he was attending a psychologist, until early 2020.
He uses a back brace as required. He takes Palexia, between 350 and 400 mg daily, antidepressant Valdoxan recently increased from 25 to 50 mg, Somac for gastric reflux, and diazepam, as needed.
He said his back is still stiff and aching all day and this discomfort spreads over his hips and down both legs, particularly the right, to the knee. He said that he sleeps between five and six hours with some disruptions because of pain and restlessness. He is not aware of any other sleep symptoms or parasomnias. There is no daytime somnolence. He’s never had a sleep study. His weight is stable.
Concentration is variable. He has to make more conscious effort to remember things. There are no obsessions or compulsions. He said that since his injury, he developed a habit of burning himself superficially on the forearm with cigarettes, without suicidal intent.
He said that his moods can be good and have no particular pattern. He said ‘I can feel really good some days and I can feel overwhelmed some days’. His motivation is good. He has some anxiety about his new job, but is enjoying same. He said he has good relationships with people at work. He still thinks he lacks resilience and capacity to adapt to novel or unexpected situations. He has some sense of humour and capacity for pleasure. He can be affectionate. He is not suicidal.
He said he is looking forward to being able to travel to his cottage in Ararat and to catching up with friends more regularly, once the coronavirus lockdown eases.
He said that when he is anxious, he gets chest tightness and difficulty thinking clearly. He said that can last a few hours, but eases if he is distracted or active, or with medication. He did not describe any re-living experiences of the work injury, nor external images. He did not describe any other avoidance behaviour.
He said that his father died in 2015 with a melanoma. He said he was significantly affected by his father’s death in 2015 ‘he was the main man in my life, the one I always wanted to please’ and that loss occurred in the months before the work injury. His mother is in her 80s. He has two older sisters in New Zealand.
He said that he grew up in New Zealand and he did not describe any specific childhood traumas or abuse. His father worked as a journalist/editor and his mother was at home. He migrated to Australia at 24 years old and was in a relationship with a woman in Sydney who fell pregnant, but she left the relationship ‘because she wanted to party and nightlife’, so he raised their daughter as a single father from when she was six months old. He said that he finished year 11 and was better at practical or hands-on subjects. He said he worked as a printer until 2009, then with Serco.
Physical Examination
On physical examination, the Panel noted that … [the plaintiff] walked with a mild limp and was able to stand on his heels and toes. He stood with a balanced and symmetrical thoracic-lumbar posture, but a mild scoliosis was noted on flexion. Tenderness to palpation was noted over the lower lumbar spine and in the right paravertebral muscles. Range of motion of the lumbar spine was mildly restricted on flexion and extension, but was otherwise normal. Straight leg raising was normal in the seated position. Neurological examination of both lower limbs revealed normal power and reflexes, with variable, non-dermatomal sensory changes in the legs, with no clinical evidence of radiculopathy.
Medical Imaging
No medical imaging of the lumbar spine was made available to the Panel, but the Panel noted a report of an MRI of the lumbar spine dated 6 August 2018, which was reported to show wedge compression fracture of L4, with a loss of vertebral height of 27-28% and right L5-S1 facet joint hypertrophy. The Panel considered that no additional medical imaging or other investigations were necessary for it to assess … [the plaintiff’s] current condition with respect to the allege lumbar spine injury.
Physical Diagnosis
The Panel concluded that … [the plaintiff] is suffering from mild persisting lower back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4.
Mental State Examination
The Panel conducted a mental state examination via video link, and noted that … [the plaintiff] presented as a middle-aged man with grey hear wearing spectacles, who displayed no psychomotor slowing or agitation. He had an obsessional style giving a very detailed history of process and interpersonal matters. His affect was slightly limited in range but there was no loss of control or catastrophic reactions. Speech production and thinking processes were normal. There was some guilt and self-rebuke about the incident, thinking he could have done more or behave differently, in hindsight. There were no other specific features of traumatisation. His reality testing and judgement were intact. His thinking focused on his pain and the claims management process. There were no hallucinations or perceptual disturbances. He appeared to be of average intellect and gave a sequential, detailed history with no cognitive impairment.
Psychiatric Diagnosis
The Panel concluded that … [the plaintiff] is suffering from an adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, which has arisen as a consequence of … [the plaintiff’s] physical injury.
Material Contribution
The Panel noted … [the plaintiff’s] description of the incident and the immediate onset of pain. The Panel also noted that … [the plaintiff’s] lower back symptoms have continued since onset. The Panel noted that … [the plaintiff] has also developed a psychiatric condition, as a consequence of the circumstance of the incident and his lower back condition. The Panel concluded that … [the plaintiff’s] lower back condition and his psychiatric condition were affected by the incident on 4 December 2015 and those effects persist. The Panel therefore concluded that … [the plaintiff’s] mild persisting lower back dysfunction, without radiculopathy, as a consequence of a healed compression fracture of L4, and his adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, are still materially contributed to by the accepted injury to the lower back on 4 December 2015.
Permanency
The Panel noted that … [the plaintiff’s] physical condition and his psychiatric condition are unlikely to change in the foreseeable future and are therefore permanent.
Work Capacity (Disregarding any psychiatric condition)
The Panel considered whether … [the plaintiff] has a current work capacity.
The Panel noted the nature and severity of … [the plaintiff’s] current physical condition and the functional restrictions which it causes, in conjunction with his pre-injury duties as a detainee services officer, which involved potentially restraining detainees, and his transitional role training two managers to take over his role in the transfer and escort section, which although essentially not inviting contact with detainees, still required that he be available to respond to emergency incidents. The Panel therefore concluded that the nature of [the plaintiff’s] physical condition is such that he is not currently capable of returning to either of these pre-injury employment roles.
The Panel considered whether … [the plaintiff] has a current work capacity or no current work capacity. In doing so, the Panel took into account all aspects of the definition of ‘current work capacity’, ‘no current work capacity’ and ‘suitable employment’ in the Act and in particular;
• his age of 59 years (which would partially not limit his employment options);
• the nature of his physical condition (which limits his capacity to undertake repetitive lifting, bending or twisting and prolonged sitting, standing, or walking);
• his education to year 11, which the Panel considers would not limit his employment options;
• his transferrable skills and previous work experience (working as a printer, detainee services officer and mobile patrol security guard);
• his good English language and limited computer skills;
• the length of time that … [the plaintiff] was out of the workforce which would limit his employment opportunities, but noting that he has re-entered the workforce in early 2020;
• the absence of a return to work plan or rehabilitation program;
• the medical information in the referral material including the certificates provided by … [the plaintiff’s] general practitioner, which he said he not submitting to his current employer;
• and his place of residence in suburban Werribee (which would not limit his employment options).
The Panel noted the job seeking services report dated 13 March 2018, return to work job seeking plan dated 18 May 2018 from WorkAble, supplied with the referral, which identified the following potential suitable employment options for … [the plaintiff]:
1. Security Officer (Concierge);
2. Security Guard (Gatehouse);
3. Security Guard (Mobile Patrol);
4. Security Guard (Control Room);
5. Administration Officer;
6. Parking Inspector/Ticket Inspector (e.g. Metro Trains);
7. Fleet Allocator
The Panel also noted the vocational report of Ms Linda Oppy dated November 2019.
The Panel asked … [the plaintiff] about the proposed suitable employment options identified in the vocational assessment report. … [The plaintiff] said that he is currently performing the role of security guard (mobile patrol) on a permanent part-time basis and is coping with the position, but he did not think he could undertake the other security guard positions, because of the additional physical demands of those positions. He considered that administrative officer and fleet allocator were also positions which he thought would be within his physical capacity.
The Panel considered that the functional requirements of the positions provided in the vocational assessment and the suitable employment criteria set out above, noting that …[the plaintiff] has returned to work as a security guard (mobile patrol) on a permanent part-time basis. The Panel considered that this employment option, as well as the employment options of administrative officer and fleet allocator, are within his physical tolerances. The Panel therefore concluded that …[the plaintiff] is capable of undertaking any of these suitable employment options on a reliable and consistent basis and they therefore constitute suitable employment for … [the plaintiff], which he could perform on a reliable and consistent basis, as a settled or established member of the wage-earning work force.
The Panel therefore concluded, disregarding any psychiatric condition, that … [the plaintiff] has a current work capacity, and is capable of working on a full-time basis currently, and in the foreseeable future.
The Panel therefore concluded that it was not necessary to consider if … [the plaintiff] is capable of any further or additional employment, either currently, or in the foreseeable future.
Work Capacity (Disregarding any physical condition)
The Panel concluded that … [the plaintiff’s] adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, is not causing any specific loss of current work capacity, nor any incapacity for suitable employment. The Panel reached that conclusion after considering the nature and mild severity of the worker’s current mood symptoms, his intact motivation, his cognitive status and his good inter-personal relational capacity.
Medical Report
The Panel noted the medical reports of independent medical examiner, Assoc Prof Richard Bittar, neurosurgeon, dated 28 September 2019, wherein he stated that ‘…he does have the physical capacity to undertake very light work, in an office-based role as long as he is able to change postures frequently and avoids any of the activities described above which aggravated his pain. He could work full time in such a role. In my opinion, it is doubtful that he would be able to find such work taking into account his age, education, skills and work experience, however I would defer to the opinion of an occupational physician in relation to this.’
The Panel arrived at a different conclusion to Assoc Prof Bittar, regarding [the plaintiff’s] capacity for work, for the reasons outlined above.”[2]
(sic)
[2]PSCB 56-64 and DACB 8-16
7At the Opening, submissions were made as to the operation of s313(4) and the legal consequences of the Panel’s opinion given in this proceeding, as to whether changes in circumstances and in the plaintiff’s medical conditions since the Panel gave its opinion, particularly in relation to the deterioration in his mental condition, could be brought into account in my assessment as to whether the consequences of the mental injury were “severe” in the required sense.
8Section 313(4) of the Act provides:
“(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a) Is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
9The plaintiff conceded that the obligations under this section were such that the Court should treat “as final and conclusive” the opinion of the Panel, but that opinion should speak to the state of affairs as at 30 September 2020. The plaintiff then submitted that a subsequent deterioration in the plaintiff’s mental condition, could be relied upon in consideration of the plaintiff’s application pursuant to s325. In this regard, the plaintiff submitted that the requirement of s325(2)(j) that “the assessment of serious injury must be made at the time that the application is heard by the court” was not in conflict with the requirement of s313(4) above.
10The defendant, on the other hand, submitted that, pursuant to authorities of this Court, to wit, Said v Smart Group Management Pty Ltd,[3] Durrant v 101 Warehousing Pty Ltd[4] and Kuluk v Victorian WorkCover Authority,[5] these were authorities for the proposition that the Panel’s Opinion in this proceeding was binding on this Court when determining “serious injury”, at the time of hearing.
[3][2021] VCC 746 (4 June 2021 per Judge Wischusen)
[4][2021] VCC 834 (25 June 2021 per Judge Wischusen)
[5][2021] VCC 1262 (6 September 2021 per Judge Purcell)
11After some discussion during the Opening, the issue was confined to the plaintiff asserting that the compensable psychiatric condition had now deteriorated to the stage whereby the plaintiff had no work capacity due to the change in his psychiatric condition since the Medical Panel Opinion. Further, the defendant then conceded that the requirements for pain and suffering were made out on the material, and the issue, therefore, is whether the plaintiff could satisfy the Court that he was entitled to rely on any deterioration in the mental condition. Suffice to say that the Medical Panel had found that there was no incapacity arising from the compensable psychological condition as at 30 September 2020.
12The plaintiff adopted his three affidavits ostensibly sworn 20 March 2019, 23 April 2021 and 21 February 2022. He was not cross-examined.
13Subsequent to the three County Court decisions relied upon, the Court of Appeal delivered a decision of Ajinvan Pty Ltd v Fry,[6] delivered on 7 September 2001. The leading judgment was delivered by Phillips JA, with whom Ormiston and Batt JJA agreed. In that case, the trial judge delivered judgment that the defendant was to pay the plaintiff weekly payments of compensation from 9 March 1994 to 26 May 1998 as follows:
(a) at 95 per cent of his pre-injury average weekly earnings for the first twenty-six weeks of this period;
(b) at the rate of 90 per cent of the plaintiff’s pre-injury average weekly earnings, and being the rate appropriate for serious injury from the expiry of the said twenty-six week period until 13 November 1996 inclusive;
(c) at the rate of 70 per cent of the plaintiff’s pre-injury average weekly earnings, being the rate appropriate for total and permanent incapacity from 14 November 1996 to 26 May 1998.
[6](2001) 3 VR 644
14It was only paragraph (c) of the above order that was subject of the appeal, on the basis that the date of 26 May 1998 coincided with an opinion delivered by the Medical Panel, which had given an answer to a medical question in the following terms:
“Q: On the balance of the probabilities, is the plaintiff either wholly or partially incapacitated for work or suitable employment and if so, what is the extent of such incapacity and will such incapacity be permanent?
A: It is the opinion of the Panel that the plaintiff is partially incapacitated. This incapacity will be permanent. It will affect his ability to work in an area where heavy lifting and frequent bending is required and in addition, it would affect his ability to maintain a static posture, either sitting or standing for prolonged periods.”[7]
[7](Ibid) at paragraph [3]
15The learned trial judge had accepted that he was bound by the Medical Panel opinion as at 27 May 1998, but that he was at large to order total and permanent incapacity payments for periods prior to that, up until 26 May 1998. Phillips JA, at paragraph 14, stated:
“There is more than one problem, however, with the judge’s finding of total and permanent incapacity ‘from 14 November 1996 to 26 May 1998 inclusive’. First, the contrast between total and permanent incapacity on 26 May and partial though permanent incapacity on the day afterwards is striking, particularly when the only relevant event at the time was the expression of opinion by the medical panel. The judge was not unmindful of this apparent absurdity for he dealt with it in the course of his reasons for judgment, saying:-
‘While at first glance the total and permanent incapacity assessment I have made, when compared with the opinion of the Medical Panel, might suggest a miracle cure, it may well find its basis in the application of different factors to the concept of ‘incapacity’.’”
16The Court of Appeal, however, rejected this concept, which was based on a change of definition of incapacity during the whole period. His Honour went on to state, at paragraphs 15 to 17:
“15.Nor, in my view, is it to be explained on the ground that the medical panel was expressing its opinion about the plaintiff’s condition on 27 May 1998 - and only on that date. True it is, as counsel submitted below, that that the medical question numbered 2 was asked in the present tense and the answer given similarly. But it cannot be, as was suggested by plaintiff’s counsel at one stage in the argument before us, that the medical opinion is of value about the plaintiff’s condition as at the day on which the opinion is expressed, and none other. … Yet surely it cannot be that the opinion of the medical panel, if sought for the purpose of s.93B, must be expressed on and as at the very day on which that period of 104 weeks expires, if it is to be of any use at all under subs(3). And I reject the plaintiff’s submission to the contrary.
16.Section 68(4) requires that the opinion expressed by the medical panel be accepted by the court as ‘final and conclusive’, and the extent to which a finding can be made which is different from that opinion will surely depend upon the nature and extent of the difference, and I include in that a difference in the date at which the medical panel is speaking and the date as at which the other finding is being made. Dates do not matter in this case; for there is no relevant difference when the judge’s finding runs right up until the date on which the medical panel expressed its opinion (albeit that it is expressed in the present tense). In this instance the conflict is stark indeed and, with great respect, I consider that a finding that the plaintiff was totally incapacitated on 26 May was plainly inconsistent with an opinion that the plaintiff was only partially incapacitated on 27 May, given that there was no circumstance or event occasioning such a dramatic alteration: no ‘miracle cure’, as the judge put it. In my respectful opinion it was simply not open to the judge, being bound by the medical panel’s opinion on 27 May 1998, to make such an inconsistent finding about the plaintiffs’ condition up until that date.
17.In so concluding I do not deny that there is some force in the submission made by plaintiff’s counsel, that total incapacity is always but a present assessment and, given an alteration in circumstances, it may be one that ceases to be correct. In McDonald v Director-General of Social Security, the Federal Court was dealing with the concept of permanent incapacity as a qualification for an invalid pension under s24 of the Social Security Act 1947 (Cth). Woodward J said: -
‘The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.
In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.’
It is unnecessary for present purposes to resolve the question, considered in that case, whether it was better to describe permanent incapacity as incapacity which was ‘likely to persist in the foreseeable future’ or as ‘likely to last indefinitely’, or even as ‘likely to last forever’. (I simply note in passing that in AMP Workers Compensation Services v. Chalkley (13 August 1998, unreported) McDonald J was content to adopt the first of these three, in line with what I have just quoted from the judgment of Woodward J) For present purposes the relevant point is this: that, whatever the true test might be of a permanent, as distinct from a temporary, incapacity, the test must be applied at a given time and in the light of the circumstances as they are, according to the evidence before the fact finding tribunal. As McDonald J said in Chalkley, in relation to the phrase ‘totally and permanently incapacitated’ as now appearing in the Accident Compensation Act:-
‘The issue of a worker’s incapacity and whether it is total at a particular time or whether it is total and permanent at a particular time may well vary as a fact from time to time. The finding by the court on 30 November 1994 that Chalkley [the worker] was totally and permanently incapacitated did not give rise to an estoppel preventing the appellant [the employer’s insurer] from raising in subsequent proceedings between it and Chalkley the issue, that at a time subsequent to the finding of the court, Chalkley was then not totally incapacitated or not totally and permanently incapacitated. The finding that as at 30 November 1994 Chalkley was totally and permanently incapacitated was no more than a finding that it was more likely than not that such incapacity would persist in the future but it was not determinative of whether such incapacity did in fact persist in the future.’
It can be accepted, then, that a finding of total and permanent incapacity is made at a given time but about the future and so must be capable of review if circumstances subsequently change significantly. Woodward J suggested a number of possible changes in circumstances which could perhaps justify a change from permanent to temporary incapacity, but nothing like that happened here; nor indeed was there time in view of the judge’s finding up until 26 May 1998. Nothing of significance occurred on that day so there was nothing to justify or explain the change in the plaintiff’s condition, from total incapacity on 26 May to partial incapacity on the day after.”[8]
(Footnotes omitted.)
[8](Ibid) at paragraphs [15]-[17]
17There is nothing in his Honour’s analysis, in my view, which does not also justify a change in circumstances where there is a deterioration in the condition as compared to a recovery. The question will always be, in that case, whether that deterioration is materially contributed to by injury arising out of or in the course of the employment.
18When one goes to the answers to the questions in the Medical Panel’s Certificate of Opinion, one can see that the Panel’s Opinion was:
“… his adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, are still materially contributed to by the accepted injury to the lower back on 4 December 2015.” [9]
[9]PSCB 53 and DACB 4-5
19Further, when disregarding any physical condition with respect to any psychological injury identified by the Medical Panel, the Panel, in Question 5, considered the plaintiff to have a capacity to undertake his pre-injury employment on account of the psychological injury absent any physical condition.
20In their Reasons for Decision, the Panel noted that, in March 2020, the plaintiff obtained a three-month position as a security supervisor on a construction site. He told the Panel that, since that employment, he had obtained another security position as a mobile patrol security guard, which involved maintaining the security of high capacity trains being tested for the Metro Tunnel Project. He told the Panel the work was permanent part time with variable hours, dependent upon the availability of work, and he was coping well with his current duties. Nonetheless, the plaintiff complained of constant pain in his lower back, despite being back at work, and he was on a number of medications for both his physical and mental condition. Later, he gave a further history about his work with the Metro trains project, saying it was mainly staff training and a graffiti protection role. He said he was working shifts between seven-and-a-half and nine hours, although that would change to five-hour shifts, up to five-hours shifts weekly, plus extra shifts as required. Nonetheless, he said his moods fluctuated, “‘I can feel really good some days and I can feel overwhelmed some days’”.[10] The Panel noted:
“… His motivation is good. He has some anxiety about his new job, but is enjoying same. He said he has good relationships with people at work. He still thinks he lacks resilience and capacity to adapt to novel or unexpected situations. He has some sense of humour and capacity for pleasure. He can be affectionate. He is not suicidal.”[11]
[10]PSCB 60 and DACB 12
[11]PSCB 60 and DACB 12
21However, the plaintiff stated:
“… when he is anxious, he gets chest tightness and difficulty thinking clearly. He said that can last a few hours, but eases if he is distracted or active, or with medication. He did not describe any re-living experiences of the work injury, nor external images. He did not describe any other avoidance behaviour.”[12]
[12]PSCB 60 and DACB 12
22A mental state examination was conducted via videolink, of which there was comment about an obsessional style and his affect being slightly limited in range but, otherwise, he appeared relatively normal. It was essentially on this basis that the diagnosis was expressed:
“The Panel concluded that … [the plaintiff] is suffering from an adjustment disorder with anxious and depressed mood, in partial remission with treatment and currently of mild severity, which has arisen as a consequence of … [the plaintiff’s] physical injury.”[13]
[13]PSCB 62 and DACB 14
23Accordingly, at this point, it is the plaintiff’s contention that the partial remission ceased in about January or February 2021 and ceased to be of “mild severity”.
24The history of the putative deterioration is succinctly recorded in two reports of consultant psychiatrist, Dr Justin Lewis, dated 14 April 2021 and 10 October 2021. In particular, Dr Lewis had medical material evidencing that deterioration in the twelve documents set out in his second report at page 1.
25In his first report, Dr Lewis took a history from the plaintiff relevant to progress after the date of the Medical Panel opinion. At paragraph 13 and following, he stated:
“… [The plaintiff] stated that he commenced employment with Unified Security in March 2020. He initially worked in Newport, monitoring trains, and was more recently transferred to Victoria Park, where he was monitoring the trainline. He stated that he was employed on a full-time basis, 10.00 a.m. to 5.30 p.m., Monday to Friday.
… [The plaintiff] stated that he continued to experience mood, anxiety and traumatisation symptoms throughout the course of his employment with Unified Security.
… [The plaintiff] stated that his psychological health deteriorated in January 2021. He stated that the trigger concerned a frightening nightmare of a critical incident in his previous role at Serco, and he woke in a state of ‘adrenalin.’ He stated that he had a bloody nose and bruised shoulder.
… [The plaintiff] stated that he wondered whether a work-related fall in November 2020 had also destabilised his mental state. He stated that accident occurred in the context of a fall after alighting from his vehicle. He stated that he was reviewed at an accident emergency department. He stated that he didn’t have the ‘courage’ to raise concerns about his mental health at the time.
… [The plaintiff] stated that he developed escalating depression and suicidal ideation. He stated that he considered travelling to Melbourne Airport to suicide – ‘I just had enough.’ He stated that he subsequently drove himself to a hospital car park, where he sat contemplating suicide for 90 minutes. He stated that he subsequently went to the emergency department.
… [The plaintiff] stated that he was admitted to the Footscray Hospital psychiatric facility as a voluntary patient over a four-week period. He stated that a number of medication changes were made including the addition of the antidepressant, Mirtazapine and Effexor. He was additionally commenced on a sedating antipsychotic, Quetiapine.
… [The plaintiff] stated that he received feedback from medical practitioners indicating that ongoing employment with Unified Security posed an unacceptable risk to his psychological health. According to … [the plaintiff], ‘the doctors think I should be on the DSP.’
… [The plaintiff] stated that he has not returned to work in any capacity since discharge from Footscray Hospital.
… [The plaintiff] stated that although the psychiatric admission helped to stabilise his mental state, he is still subject to ‘a lot of grey clouds.’ He stated that he is still subject to periods of significant depression and high levels of agitation. He stated that he engages in self-harming behaviours during periods of intense emotional distress. He stated that he typically self-harms by burning himself with a cigarette. He stated that self-harming ‘calms me down and reboots my brain.’ He stated that there have been two self-harm episodes since discharge from hospital, the last episode being one week ago.
… [The plaintiff] described a restricted range of interests. He stated that he is not currently driving in the context of significant anxiety and medication factors. He undertakes the shopping with his daughter, and will share the cooking with his daughter. He stated that he enjoys spending time with his 10-month-old granddaughter. He stated that his daughter might leave his granddaughter with him for 3-4 hours at a time. He stated that he undertakes some light gardening in a piecemeal fashion consequent to persistent pain symptoms. He stated that he spends time working on a Mazda MX5.”[14]
[14]PSCB 214-215
26In this report, Dr Lewis stated, at paragraph 100:
“There appears to have been a progressive deterioration in [the plaintiff’s] psychological health since having commenced new employment with Unified Security in March 2020. I note [the plaintiff’s] psychological health deteriorated significantly in January 2021 associated with a marked increase in depression, traumatisation symptoms, and suicidal ideation.”[15]
[15]PSCB 220
27Further, Dr Lewis stated:
“The workplace incident on 4th December 2015 contributed to a Major Depressive Disorder on a background of persistent pain and physical restrictions. The workplace incident on 4th December 2015 additionally precipitated a Posttraumatic Stress Disorder in the context of past cumulative exposure to traumatic workplace incidents.”[16]
[16]PSCB 221
28The plaintiff’s symptoms, at that time, were recorded as follows:
“… [The plaintiff][ presents with a number of depressive symptoms including lowered mood, poor motivation, sleep disturbance, cognitive difficulties, reduced appetite, and intermittent suicidal ideation.”[17]
[17]PSCB 221
29Further, at paragraph 7 in the questions section, he stated:
“Based on the chronicity and severity of current mood and traumatisation symptoms, my view is that … [the plaintiff] has no current work capacity, and that the total work incapacity is permanent.”[18]
[18]PSCB 222
30As to prognosis, Dr Lewis stated:
“The psychiatric prognosis can be regarded as poor and unfavourable. Post-traumatic Stress Disorder tends to be a chronic anxiety condition. The disorder rarely fully remits, rather individuals can learning (sic) coping tools with the passage of time. Whilst some individuals can experience significant remission in symptoms, … [the plaintiff’s] course has been characterised by persistent and disabling traumatisation symptoms accompanied with poor coping and suicidal ideation.”[19]
[19]PSCB 223
31As to the likelihood and nature of any long-term deterioration in the future, Dr Lewis stated:
“I note that … [the plaintiff] recently required a four-week inpatient psychiatric admission in the context of significant depression, suicidal ideation, and traumatisation symptoms. He will remain at chronic risk of reactivation of traumatisation symptoms with any direct or indirect reminders of employment. The psychiatric prognosis will be improved with long-term monitoring of psychotropic medication and trauma-focused psychological therapy.”[20]
[20]PSCB 223
32Further, it is of note that these opinions were maintained in his second report.
33The defendant tendered in evidence the report of Associate Professor Peter Doherty, consultant psychiatrist, dated 20 November 2021, who had examined the worker over a year from the date of the Medical Panel opinion. It is to be noted that Associate Professor Doherty had documents of treatment of the plaintiff in 2021, as set out in paragraph 9 of his report. Specific evidence of the deterioration is set out consistently at paragraphs 32 to 39:
“He said that was the last day because ‘I went to Footscray (to the inpatient psychiatry unit called), Ursula Frayne Centre (actually that was in February/March 2021)’, and he was treated with an antidepressant medication and a calming agent and he was there for four weeks . He added that there was some expectation or concern that he was suffering from Parkinson’s Disease.
He told me that up till then he had been working for an alternative employer, ‘Unified Services,’ doing various roles, the most recent task was checking railway tracks, making sure no one was on a track and making sure that trains get through. He said he was doing that between March 2019 and February 2020 (to February 2021). He told me he undertook different roles working on call, various hours, but generally speaking he was working thirty-five hours a week at the time he ceased work finally .
He told me he has not been able to work since. He told me he was working at Laverton and there were ‘a couple of incidents which fed my PTSD.’ There was a guy on the tracks at Laverton. He told me that such ‘accidents trigger’ the PTSD.
He told me he went to inpatient psychiatry ward in ‘November 2020’ (February 2021) located at Footscray Hospital, Ursula Frayne Centre, because he was suicidal. Also, he said he was given antibiotics and rehydrated.
He said he has been admitted to Albert Road Centre (ARC) for four weeks in ‘July 2020’ (July 2021).
He said that over the journey there have been good and bad days and he told me that today with this examination has been a good day. He commented that he wished all this would go away.
He told me about the shakes in his hands, which are obvious, and that they have been present for eighteen months. He told me that it was there when he attended a medical panel even though the medical panel was on Zoom.
He told me his ‘memory is not that good, not as good as it was.’ He said that the treating psychiatrist Dr Brendan Hyland and the pain specialist Dr Symon McCallum say to him that the shakes are due to medication and my age.”[21]
[21]DACB 87
34Further, at paragraph 58 and following, he stated:
“When asked about motivation and energy he said to me it is ‘fine generally.’ He does what people expect him to be able to do . He told me he will burn himself, that is deliberate self-harm if he does not feel good.
I asked him about anxiety, and he said he is always anxious and once he could do things but now with anxiety he gets chest tightness, throbbing in the shoulder, feels light. He told me he gets panic episodes if he gets confused about facts or if someone knocks on the door and he does not know who it is.
…
He said to me that his concentration and memory have gone up and down. He said to me that he forgets things and the children send him text messages so as to remember things.”[22]
[22]DACB 89
35When asking the plaintiff about his work capacity, Associate Professor Doherty stated:
“I asked him his views about his current work capacity, and he told me he has none at all for both physical and mental health reasons due to the incident which he led and five people got hurt and he said that is his fault. He added that, ‘I was leading the incident.’”[23]
[23]DACB 90 at paragraph [74]
36At paragraphs 94 onwards of his report, Associate Professor Doherty stated:
“I read the report back to the general practitioner by a medical officer of the Ursula Frayne Centre dated 18 March 2021. He noted that the worker presented with a suicidal ideation on the background of chronic depression and PTSD. The diagnosis of relapse of major depression and PTSD was made. The comment was that his PTSD had been aggravated by his job.
I read a report back to the general practitioner by the treating psychologist Rita Fegatilli dated 16 April 2021. She wrote that she had a recent session with the worker [on] 14 April 2021 but the session before that was on 28 January 2020, fifteen months earlier, there has been a significant deterioration in his mental health. He presented with visible shaking of his arms and body, possibly the onset of Parkinson’s Disease. A referral to a psychologist with expertise in working with trauma and PTSD was recommended.
…
I read an email to the authorised agent by the treating psychiatrist Dr Hyland dated 8 July 2021 requesting an admission at ARC, noting that the worker has a history of depression and has developed an extremely disabling resting tremor which he believes is due to psychotropic medication.”[24]
[24]DACB 90-91 at paragraphs [94]-[95] and [97]
37Further on, Associate Professor Doherty noted:
“… he was assessed by a medical panel in August 2020 and was psychiatrically fit for work then. Since then, he has deteriorated in his mental health , with hospitalisations in 2021, and he now presents with obviously anxiety and poor memory, with what appears to be an incapacity for all work. He said he was traumatized in the subsequent alternative employment. His coping has deteriorated over the last year, and now there is deliberate self-harm and high dose medication used.”[25]
[25]DACB 93
38Finally, Associate Professor Doherty considered that the plaintiff did require ongoing psychiatric care and medication management, and although the assessment of his work capacity was made more difficult because of his abnormal presentation to the examination, but based on that presentation to him, “there is no capacity for work”.[26]
[26]DACB 94
39As to the future, Associate Professor Doherty stated:
“With regard to natural history, the anxiety disorder has worsened over time and the outlook is not favorable. His coping mechanisms have deteriorated, and he is not dealing well with stress and change. The outlook is generally unfavorable. Prolonged treatment from a psychiatrist is likely.”[27]
[27]DACB 94
40Although Associate Professor Doherty found some difficulty in explaining why the plaintiff had deteriorated so much in the past year, I am satisfied that he has discharged the onus in proving that the deterioration still related to the psychological condition which is, in turn, related to the original injury on 4 December 2015, and that he has no capacity for work, which is likely to continue for the foreseeable future.
41For completeness, I note there is no evidence that any intervening event after September 2020 was a “modus interveniens” which broke the chain of causation with respect to the work-related psychological condition which subsisted as at the date of the Medical Panel opinion.
42Accordingly, leave will be granted to the plaintiff to issue proceedings for economic loss damages.
43Under the principles of Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[28] leave will also be granted for the plaintiff to issue damages for pain and suffering.
[28][2013] VSCA 46
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