Ozer v Australia Hospital Care (Como) Pty Ltd
[2011] VCC 928
•19 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-02879
| HULYA OZER | Plaintiff |
| v | |
| AUSTRALIA HOSPITAL CARE (COMO) PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 June 2011 |
| DATE OF JUDGMENT: | 19 July 2011 |
| CASE MAY BE CITED AS: | Ozer v Australia Hospital Care (Como) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 928 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – reliance upon sub-paragraph (a) and (c) of the definition of serious injury – injury to the low back with resultant Adjustment Disorder and depression – whether burden of proof discharged – observations concerning behaviour of insurer.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with | Zaparas Lawyers |
| Ms K Galpin | ||
| For the Defendant | Ms R Kaye | Hall & Wilcox |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages. In bringing her application, the plaintiff relies upon both sub-paragraphs (a) and (c) of the definition of serious injury found in s.134AB(37) of the Act. The injuries upon which the plaintiff relies are to the spine, and in particular to the low back, with a resultant adjustment pain disorder, major depressive disorder or the like. The physical injury upon which the plaintiff relies is alleged to have occurred throughout the course of her employment as a personal services assistant, which work involved her in assisting disabled patients, and with particular reference to incidents on or about 23 April 2008 and 26 April 2008. It is asserted that symptoms commenced in approximately 2003. Reliance is placed upon employment after 20 October 1999, a date of significance in relation to the operation of the Act. Liability was accepted by the defendant for the payment of weekly benefits and of medical and like expenses.
2 Mr P Jewell SC with Ms K Galpin of counsel appeared on behalf of the plaintiff. Ms R Kaye of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-effective manner in which to conduct a case such as this. Indeed, the entire manner in which this case was presented was exemplary and could stand as a model for the manner in which originating motions such as these should be contested. The cross-examination of the plaintiff by Ms Kaye was both incisive and concise, whilst the addresses, both opening and closing, were most helpful. They summarised the facts and neatly addressed the issues which were at the real heart of the dispute. The entire application, including addresses, and in a situation where leave was sought in relation to both heads of damages and with reliance being placed upon both sub-paragraphs (a) and (c) of the definition, took considerably less than a day. Whilst obviously there will be some cases which of necessity may take longer, it would be a good thing indeed if more of these originating motions relating to serious injury could be conducted in the manner in which this one was.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
4 The following findings of fact are made for the purpose of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 I have no reason to disbelieve the evidence of the plaintiff on all important issues. She impressed me as being frank and honest and doing her best to answer all questions truthfully and accurately. I regard her as well-motivated, and note that she told her treating general practitioner, Dr Woo, that she wanted to keep on working, there being financial reasons for this. I note that both Dr John Douglas and Dr Stephen Stern, consultant psychiatrists examining on behalf of the defendant, described her as co-operative and it seemed to me that she was at all times endeavouring to answer questions to the best of her ability. In short, I accept her evidence, both oral and in affidavit form, in relation to the occurrence of her injuries and the symptoms and restrictions from which she suffers as a consequence.
(ii) The plaintiff’s background, training and pre-injury employment 6 The plaintiff is aged 46 years, having been born in Turkey on 25 December 1964. She immigrated to Australia in 1970, although she returned to Turkey between 1975 and 1977 before coming back to this country. She has had limited education and did not attend secondary school, although later studying the equivalent of Year 10 at a TAFE college. She is a twice divorced woman with two adult children who lives alone, although she is frequently visited by her family.
7 The plaintiff’s employment history is that she originally worked as a packer when a teenager, subsequently doing similar work, and at other times worked as a process worker and youth worker. She has also worked as an office assistant, a teacher’s aid and as a contractor in the fashion industry. As stated, she undertook an 18 week basic education course in 1992 and in later years also obtained a basic first aid certificate. In 1997 she obtained a Certificate III in Community Care and, whilst performing home care for the Greater Dandenong Council, suffered a hand complaint which resulted in her performing office work for a time. Without going through the history of the name changes of the defendant, she effectively commenced work for it in 1998, then being a part-time ward clerk. Subsequently, she also worked as a medical receptionist at Mentone Medical Centre for a couple of years. She continued to obtain appropriate certificates in relation to first aid and community services.
8 In 2000 her working hours with the defendant as a personal services assistant were increased to 30 per week, and she also obtained similar work on a casual basis in other establishments, generally working approximately 10-15 hours per week in such positions. Thus, in essence, she was working in two jobs each week. This seems to have continued to be the case until 2008.
9 The plaintiff’s duties with the defendant during the relevant period involved, amongst other things, assisting in the lifting and transferring of patients and, for example, physically helping patients who needed assistance in relation to their physiotherapy.
10 Thus, the plaintiff has worked in a number of positions and has obtained various certificates. The main emphasis of her employment, particularly in more recent years, has been in the area of healthcare and I accept that her duties were quite physical in nature, particularly involving assistance with the manoeuvring of patients with difficulties.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury 11 It is to be remembered that the plaintiff is relying upon injury throughout the course of employment from 20 October 1999 to 28 April 2008 in addition to a particular incident in April 2008, and is also relying upon both a physical injury and a psychiatric or psychological disorder.
12 Prior to 20 October 1999 the plaintiff had suffered from a number of illnesses and conditions. She had suffered thyroid problems requiring specialist treatment, but stated that these are now under control. She has also had some gastro-intestinal difficulties requiring both gastroscopies and specialist intervention, but these are also under control with the assistance of medication. She has suffered carpal tunnel syndrome and, in 1984 when she was a process worker, an injury to the right knee which kept her absent from employment for approximately four months.
13 Various stressful events have also occurred in her life, including two divorces and the involvement of a niece in a motor vehicle accident in which a fatality occurred. The plaintiff has also had a long-standing problem with tension headaches but principally when working with the defendant. In 2005 she saw a general practitioner because she was feeling stressed and drained due to working seven days per week and was having more frequent tension headaches. There was also some stress related to surgery which was required to be performed upon her nephew. Whilst the plaintiff is not currently taking any anti-depressants, she did take some a couple of years ago. The plaintiff stopped taking anti-depressants because of side effects. Apparently more than one type or brand of anti-depressants was tried but the plaintiff was, in essence, unable to take them.
14 In summary, the plaintiff has had a number of prior physical injuries which seem to me to be of limited relevance. Both before and after commencing employment with the defendant, there have been several stressors in her life. However, apart from one apparently brief absence, over the years she has been able to continue working and, indeed, work in two jobs.
(b) The injuries sustained throughout the course of employment and in April 2008, their treatment and the assessments of them 15 As I understand the manner in which this case is being pursued, the mental or behavioural disturbance or disorder upon which reliance has been placed is one which results from or is associated with the organic injury to the back, and particularly to the low back. In other words, psychiatric or psychological problems associated with the pressures or circumstances of work in general cannot be relied upon by the plaintiff. This is to be borne in mind when considering the sequence of events and the basis of the originating motion.
16 The plaintiff first seems to have developed symptoms associated with her low back in 2003 when assisting to transfer a patient from an armchair to a bed. Following it she was on light duties for approximately a month, saw a general practitioner and underwent a CT scan. Whilst the report from the Parkmore Medical Centre where the plaintiff attended, which report is dated 28 August 2009, is somewhat confusing in relation to dates, it may well be that the report of the CT scan indicated that there were minor posterior disc bulges at L3/4 and L4/5 with decreased space height at L5/S1. In any event, later in 2003 the plaintiff again attended at the Parkmore Medical Centre, but on these occasions her complaints related more to problems in the neck and arms. In relation to her low back complaint, it would seem that she had some physiotherapy and returned to normal duties as at 19 September 2003. Thereafter she continued with her normal work although experiencing some episodes of back pain.
17 In June 2006 the plaintiff suffered further back pain. She attended Dr Loh at Parkmore Medical Centre complaining of aggravation of lower back pain by reason of heavy work, including the lifting of patients. She had pins and needles radiating down the legs to the feet and intermittent shooting pains. Voltaren was prescribed and an exercise regime suggested. A further CT scan of the lumbar spine of 21 June 2006 revealed that there was disc space narrowing at L5/S1 and facet joint degenerative change at L4/5 and L5/S1. Shortly after this the plaintiff also complained of some pain in the neck and thoracic spine.
18 Having had some mid-back pain in 2007, the plaintiff then had two further episodes of low back pain on 23 April 2008 and 26 April 2008, the latter being particularly severe, and each being associated with the movement of patients. On 28 April 2008 the plaintiff returned to Dr Loh. A CT scan of 29 April 2008 is reported to have shown a mild broad based posterior disc bulge at L4/5 contacting the thecal sac and extending to the exit foraminae. A CT scan of the cervical spine performed on the same day was normal. When the plaintiff told Dr Loh on 27 May 2008 that she had shooting pains, more in the right leg than the left, she was referred at her own suggestion to Mr Brian Barrett, orthopaedic surgeon. This was the last occasion upon which the plaintiff saw Dr Loh, subsequently attending a different general practitioner, namely Dr Woo at the Springvale South Medical Centre.
19 Mr Barrett first saw the plaintiff on 4 June 2008. He took an appropriate history, including that the plaintiff’s left leg pain had become very bad on 28 April 2008, she had been put of work by Dr Loh, and had remained off thereafter. Whilst there had been moderate improvement, she was still complaining of lower back pain radiating to the right buttock and right groin and shooting pains down both legs, particularly the right, as far as the feet. Mr Barrett organised an MRI of the lumbar spine, this being carried out on 15 June 2008. In the opinion of Mr Barrett it confirmed a central posterior disc bulge at the L4/5 disc level, slightly more on the left than the right. Mr Barrett also observed that “The disc centre is not significantly desiccated, probably due to the lumbar disc rupture occurring within the preceding 2 months”. The opinion expressed by Mr Barrett in his report of 24 July 2008 is that the plaintiff had suffered a lower lumbar disc injury during a heavy lifting incident at her work in 2003, but had made a reasonable recovery with some intermittent lower back pain radiating to the right groin. However, in April 2008 she had suffered a more serious lower lumbar disc rupture at the L4/5 lumbar disc following which she developed bilateral sciatica involving her L5 nerve roots. She had been off work continuously since 26 April 2008. Mr Barrett was of the view that clinical orthopaedic and radiological examinations confirmed this diagnosis. As at mid-2008 he did not consider her fit to return to even light and limited work and expressed the opinion that the prognosis for this type of lumbar disc rupture is poor. It should be said that earlier, on 25 June 2008, Mr Barrett had issued a certificate stating that the plaintiff had sustained a serious lower lumbar disc rupture producing low back pain and mainly right sided sciatica. As a result of this she was not fit for any return to work, however light.
20 Mr Barrett reported again on 17 November 2009. Since his earlier report, he had re-examined the plaintiff on three occasions at the request of Dr Woo, these being in March, October and November of 2009. As at 24 March 2009 the plaintiff was still off work and being treated for physiotherapy and hydrotherapy, along with some recent acupuncture. She was taking Digesic, and complained of low back pain radiating to both buttocks and groins and to both lower limbs to the feet with some associated intermittent numbness and pins and needles.
21 Subsequently Mr Barrett saw the plaintiff on 1 October 2009. Her symptoms seemed to have been increasing and her lower lumbar spinal movements were more limited, and as a result Mr Barrett organised another MRI on 17 October 2009. His comments in relation to this MRI were to the effect that it showed the same features, although he remarked that the L4/5 disc showed some moderate desiccation and with a mild posterior disc bulge in the centre and to the left. Mr Barrett reviewed the plaintiff again on 4 November 2009, presumably to discuss the result of the MRI. In relation to reviews in October and November 2009, Mr Barrett has observed as follows:
“At the time the WorkCover Insurer was tempted to push her back to work, at a time when she was clearly not even coping with her own housework, her symptoms were unchanged and her radiological features confirmed the major and painful nature of her L4-5 lumbar disc rupture.”
22 Mr Barrett also commented upon the fact that the radiological investigation taken shortly after the episodes of 2003 and 2008 failed to reveal any significant pre-existing injury or disease. He diagnosed a painful rupture involving the L4/5 lumbar intervertebral disc, producing lower back pain and intermittent bilateral sciatica. He considered her quite unfit to consider a return to even light and limited work as at the time of his report or into the foreseeable future. He referred to the fact that lumbar disc ruptures of this type had no significant capacity to heal or repair and that the prognosis was poor.
23 A further report of Mr Barrett dated 29 April 2011 summarises the earlier reports and also deals with an examination of 24 March 2011, this being at the request of Dr Woo. As at that time, the plaintiff was still off work and being treated with physiotherapy and hydrotherapy. Her symptoms were much the same and were not improving and were aggravated by prolonged sitting, standing, walking, lifting and the like. On examination, the lumbar movements were very limited. Another MRI was carried out on 26 April 2011 which, in the opinion of Mr Barrett, revealed features similar to those shown in the earlier MRI examinations. He repeated his opinion concerning the plaintiff sustaining a painful lumbar disc rupture at the L4/5 disc level producing lower back pain and intermittent bilateral sciatica. He again stated that the plaintiff was unfit to return to even light and limited work and would remain so for the foreseeable future, stating that her symptoms were maintained at a tolerable level by conservative treatment and strict minimisation of her physical activities. I have dealt with the reports of Mr Barrett at some length because he is the treating orthopaedic surgeon, has seen the plaintiff on a number of occasions over the years including comparatively recently, and has provided a considerable amount of material.
24 Dr Woo has also seen the plaintiff over the last few years. In his report of 29 January 2009 he referred to the fact that the plaintiff had suffered a serious injury to her lumbar disc and had developed severe secondary depression as a result. He also expressed the view that, not taking into consideration her depression, she was as at that date unfit for any type of work, no matter how light. He was also of the view that the prognosis was poor, her condition had stabilised and her injury was directly related to her work. On 19 February 2011 he issued a certificate stating that that plaintiff was still suffering from a work-related back injury and that, due to the severity of her pain, she was only able to drive locally and was unable to take public transport. A report of 30 April 2011 is along similar lines. Dr Woo regarded the plaintiff as being unfit for any type of work as she had problems coping with her normal household work at home, and considered that her incapacity for any type of work was permanent. He was again leaving to one side her depression.
25 The only other evidence from those who have treated the plaintiff is from Mr Pereira, physiotherapist, and Mr Chan, physiotherapist. The material in each of these reports is now somewhat dated and essentially they take the matter no further.
26 The plaintiff’s physical condition has been the subject of expert examinations on a medico-legal basis. Professor Vernon Marshall, Professor Emeritus of Surgery, examined the plaintiff at the request of the defendant on 2 June 2010. He diagnosed chronic pain syndrome with behavioural and non-organic aspects. He referred to learned pain behaviour. However, Professor Marshall also stated as follows:
“On physical grounds, she has persisting and worsening symptoms and is unfit for her pre-injury duties which is likely to be permanent. She could possibly on physical grounds do very light clerical duties without lifting strains but return to the workforce is, in my opinion, unlikely in view of her persisting symptoms and associated features.”
27 In addition, Professor Marshall made the following observations:
“She may have a capacity for suitable employment but is likely to have difficulties returning to the workforce…I believe it is unlikely that she will recover any more work capacity.”
28 Dr Malcolm Brown, occupational physician, has reported to the solicitors for the defendant on three occasions. In his report of 26 May 2010 he stated that the plaintiff presented primarily with a significant depressive condition and also stated that the changes seen on radiological investigations were minor and unlikely to have any current clinical significance. Obviously this is in marked contrast with the opinions of those treating the plaintiff. He diagnosed long-term mild uncomplicated lower back pain with an exacerbation at work in April 2008, the effects of which had largely ceased, there being minimal continuing impairment resulting from any compensable injury. His view clearly, was that any effect from work was minor and temporary.
29 However, when Dr Brown reported again on 1 February 2011 following an examination on that day, his opinion in relation to this last-mentioned point concerning the temporary effect of employment upon injury seems to have altered considerably. He stated that:
“Ms Ozer has some impairment of her spinal function as a result of the compensable injury. She is likely to have some impairment of body function for the foreseeable future…I think it is reasonable to say that she does have some partial incapacity for employment as a result of the compensable injury.”
There seems to have been something approaching a complete reversal in relation to the view that the contribution of employment was minor and temporary.
30 Exactly how the effects of the employment-related incident could have largely ceased as at 26 May 2010, upon which occasion Dr Brown described any effect from work as being “minor and temporary”, but impairment of function and partial incapacity both resulting from the compensable injury and persisting for the foreseeable future could exist as at 1 February 2011 is not explained. There is little or nothing contained in the latter report which would indicate why such a shift in position has occurred.
31 Dr Kevin Fraser, rheumatologist, examined the plaintiff at the request of the defendant’s solicitors on 27 May 2010 and 25 January 2011. Following the earlier examination, he expressed the opinion that he did not consider that there was any ongoing work-related injury of a physical nature, the plaintiff having sustained self-limited soft tissue injuries. He disagreed with the diagnosis of Mr Barrett that the plaintiff had sustained a serious lower lumbar injury. Indeed, he went further and stated that the fact that there was no change in the second MRI of the lumbar spine “puts paid” to Mr Barrett’s suggestion that the absence of significant desiccation in the earlier MRI of 15 June 2008 was probably due to the lumbar disc rupture occurring within the preceding two months. Dr Fraser stated that there was no basis at all for the suggestion that the plaintiff had a lumbar disc rupture. It is to be remembered that Mr Barrett expressed the view that the second MRI in fact showed some moderate desiccation of the L4/5 disc, and indeed the radiologist reporting on 19 October 2009 referred to mild disc desiccation at that level. Whether or not Dr Fraser took this into account is not clear.
32 In any event, Dr Fraser thought that the prognosis was poor and that there was unlikely to be any improvement in the foreseeable future, but attributed this as being due to non-organic factors. Essentially, in his report of 28 January 2011 his views did not alter, he not considering that the plaintiff was physically incapacitated for employment or that there had been any compensable injury of a physical nature. His letter of 10 March 2011 repeated that he believed that the plaintiff’s symptoms and signs were due to psychological rather than physical factors and that, from a physical point of view, she was capable of undertaking suitable employment. No reports of specialists examining the plaintiff at the request of her solicitors were put in evidence and there was no suggestion that any exist.
33 Before turning to the psychiatric or psychological injury, I shall state my conclusion as to the physical injury. I do not accept the opinion of Dr Fraser. I prefer and accept the opinions expressed by those treating the plaintiff, and particularly the opinion of Mr Barrett, an orthopaedic surgeon who has seen her on a number of occasions over the years. I am of the opinion that the plaintiff did indeed suffer a physical injury and that the effects of it persist. Apart from Dr Woo and Mr Barrett, that is also the opinion of Professor Marshall, examining on behalf of the defendant. I have previously referred to his observations in relation to the plaintiff’s persisting and worsening symptoms “on physical grounds”, and he saw a continuing contribution from the work injury. Dr Brown’s report of 1 February 2011 refers to a psychiatric condition which may be secondary to physical symptoms and to an impairment of spinal function as a result of a compensable injury. The overwhelming weight of evidence from those treating the plaintiff and from medico-legal experts examining on behalf of the defendant (with the exception of Dr Fraser) points to the conclusion that the plaintiff suffered an organic back injury and still suffers from the consequences of same. In relation to the actual diagnosis, I prefer and accept the opinions of Dr Woo and Mr Barrett. Mr Barrett’s diagnosis of a painful lumbar disc rupture at the L4/5 level and his explanation of this in terms of his findings and the results of radiological investigation seems to me to be logical and plausible and it is to be remembered that, as previously stated, he is the treating orthopaedic surgeon who has seen the plaintiff over the last few years on a regular basis. His diagnosis is one which seems to me to describe with accuracy the physical injuries suffered.
34 Insofar as the back injury sustained is in the nature of an aggravation, in accordance with the authorities, I shall consider the consequences of the injury as aggravated. However, bearing in mind that the plaintiff is relying upon the course of employment in addition to the specific episodes of April 2008, it seems to me that the consequences and symptoms of the injury as aggravated are essentially the consequences and symptoms from which the plaintiff now suffers. There is no suggestion that she sustained any back injury or suffered any symptoms prior to 20 October 1999. It is also to be recalled that, virtually until April 2008, she was able to work in a physically demanding job as well as performing a second job. Indeed, if the opinion of Mr Barrett is accepted, it would seem that the symptom-producing damage was effectively done in early 2008.
35 I am also satisfied that the consequences of the physical injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Woo, who left to one side any consideration of depression, has stated that, as at April 2011, the plaintiff was unfit for any type of work, that her prognosis was poor, and that her incapacity for any type of work was permanent. Mr Barrett, who has dealt with only the physical aspects of the injury, has stated that lumbar disc disruptions of the type which the plaintiff suffers have no significant capacity to heal or repair and he expected her symptoms to continue into the foreseeable future. He also observed that the plaintiff would be unfit to return to any form of work into the foreseeable future. Whilst also taking into account emotional and other factors, Professor Marshall, examining on behalf of the defendant, has stated that, on physical grounds, the plaintiff’s unfitness for pre-injury duties is likely to be permanent. Whilst this may be a view as to capacity, it is also indicative of the permanence of the consequences of injury. Dr Brown ultimately stated that he believed that the plaintiff would have a partial incapacity for employment and that this was likely to last for the foreseeable future. In summary, I am of the view that the physical injury suffered by the plaintiff is permanent within the meaning of the Act and the consequences of it will persist for the foreseeable future.
36 I turn now to the psychological or psychiatric aspects of the injury suffered. Dr Woo diagnosed this as severe secondary depression as a result of the plaintiff’s severe low back pain, and also referred to other stresses such as the financial pressure upon her because of her inability to return to work. He referred the plaintiff to Ms Khai Wong, who appears to be a master in counselling and a psychologist. She felt that the plaintiff’s symptoms were consistent with moderate to severe depressive disorder with features of Post- Traumatic Stress Disorder. It would seem that the plaintiff took part in individual and group counselling sessions. Ms Wong felt that the plaintiff’s flare-ups and aggravated pain appeared consistent with the description of the pain experienced in April 2008. As at the time of her report in April 2009, Ms Wong was of the view that the plaintiff was suffering from a moderate level of depressive symptoms and significant psychological symptoms stemming from her severe pain levels and restricted lifestyle. I might say that I found sections of her report somewhat difficult to understand.
37 Dr Woo also referred the plaintiff to Ms Semra Durmaz, psychologist, who has apparently treated the plaintiff for some time, originally seeing her weekly. Ms Durmaz continues to treat the plaintiff on a fortnightly basis. The plaintiff believes that the diminution from weekly visits to fortnightly visits was as a result of a limitation imposed by the defendant’s insurer. In her report of 18 April 2011 Ms Durmaz diagnosed the plaintiff’s condition as a Chronic Adjustment Disorder with mixed anxiety and depressed mood. She also expressed the view that the anxiety and depression from which the plaintiff suffers are related to the consequences of the workplace injury which she experienced. Having implicated employment, Ms Durmaz also stated that the plaintiff does not have a capacity to work now or in the foreseeable future.
38 The plaintiff has been examined by a number of consultant psychiatrists for medico-legal purposes. Dr M J Nathar examined the plaintiff at the request of her solicitors on 6 May 2011, reporting two days later. Dr Nathar diagnosed a Major Depressive Reaction with symptoms of anxiety as well as a Chronic Pain Syndrome with psychological factors. Dr Nathar has described both psychiatric injuries as being moderate to severe in degree with the major depression being diagnosed as a result of an initial Adjustment Disorder becoming chronic. He implicated the back injury, and particularly the incident in 2008, whilst also referring to other employment issues. Dr Nathar stated as follows:
“Looking purely at the psychiatric viewpoint, it is my opinion that her mental state is so poor that she is totally unfit for pre-injury duties. She is also totally unfit for alternative duties on psychiatric grounds alone. Total psychiatric incapacity on balance is likely to be permanent as her prognosis is poor.”
39 Three consultant psychiatrists have seen the plaintiff on behalf of the defendant. Dr John Douglas first saw the plaintiff on 11 March 2009. He diagnosed an Adjustment Disorder with depressed mood, the adjustment being due to the low back injury. He noted ongoing symptoms of depression. When seen at that time, the plaintiff was unfit for work, including a return to work, because of her psychiatric symptoms. Dr Douglas also considered her unfit by reason of her back injury. He considered her prognosis not to be good, advising a pain management program, but also stating that increasingly it looked as if her condition had become stable.
40 In a supplementary report of 30 April 2009, Dr Douglas advised the defendant’s insurer that he remained of the view that the plaintiff had no capacity for employment from a psychiatric perspective, but, interestingly, seems to have been forwarded a report from Mr Ronald Haig, which report was apparently so forwarded to him by the insurer. There is reference elsewhere to a report, or reports, from Mr Haig. Such report or reports do not seem to have found their way into the material before me, although, of course, a supplementary report of Mr Douglas has. Indeed, the reports of Mr Douglas, all addressed to the defendant’s insurer, were in fact tendered by the plaintiff. In any event, the report of Mr Haig as described by Dr Douglas would indicate that he saw the plaintiff more than once, and that her prognosis was guarded.
41 Dr Douglas reported to the defendant’s insurer again on 21 October 2009, having again seen the plaintiff on that day. He again diagnosed an Adjustment Disorder with depressed mood and thought that she was quite unfit for work with no capacity for any duties. He again implicated employment and the back injury in particular. He does not seem to have been aware of any other psychological or psychiatric problems. Dr Douglas reported again to the insurer following an examination on 18 June 2010. He again made the same diagnosis, again implicated the back injury and described her as being seriously disabled, dependent and aggrieved. He also described her as being unfit for any return to work as at that time because of her back pain and psychiatric symptoms. He was also of the view that it was more likely than not that her incapacity for work would continue indefinitely.
42 Dr Stephen Stern saw the plaintiff at the request of the defendant on 15 September 2009. His report was also tendered by the plaintiff. He diagnosed a Chronic Adjustment Disorder with mixed anxiety and depressed mood, and related this to the work injury to her low back on 23 April 2008 and the continuing pain. Essentially the purpose of Dr Stern’s examination was to provide an assessment of impairment pursuant to “The Guide to the Evaluation of Psychiatric Impairment for Clinicians”. This he was prepared to do, finding a whole person psychiatric impairment of 20 per cent. The quantum of his assessment is in no way binding in the present application, but its existence is another piece of evidence on which the plaintiff is permitted to rely.
43 The plaintiff was also seen at the request of the defendant’s insurer by Dr Paul Kornan on 8 December 2010, he reporting the following day. He noted some previous nervous problems associated with back injuries in 2003 and 2007 but took no history of any prior psychiatric problems. He diagnosed a pain syndrome with psychological factors, namely anxiety, depression and illness behaviour features. He described the plaintiff’s psychiatric condition as being from employment and having not resolved. He also believed that her personal life would have left her with some anxiety and depression, referring to her divorces and the fact that her daughter had recently been divorced. Dr Kornan believed that, from a psychiatric viewpoint alone, the plaintiff was capable of modified pre-injury duties and limited hours or performing alternative duties in a similar way.
44 As shall be discussed, I note that the concluding question addressed to Dr Kornan for his consideration was as follows:
“Given that there is opinion that the worker no longer has a compensable physical injury could you please comment on whether any psychiatric injury is still related to the injury or is it as a result of other factors/reasons?”
45 Perhaps understandably and predictably, Dr Kornan stated that, if such be the case, any secondary psychiatric condition was clearly no longer related to a physical injury from employment but rather to the vagaries of life and factors such as the divorces. He then went on to conclude that, from a psychiatric viewpoint, the plaintiff would be capable to return to work initially in a modified way but, if motivated, could rapidly return to full-time employment. It seems to me that the effect of an answer to such a question is necessarily diluted by the way in which such question is worded. True it is that, as at that time, the defendant’s insurer possessed the first report of Dr Fraser to the effect that there was no ongoing work-related injury of a physical nature. It also possessed the initial report of Dr Brown before he seems to have changed his views. However, clearly it also possessed the report of Professor Marshall in which he stated that, on physical grounds, the plaintiff had persisting and worsening symptoms and had a permanent incapacity for her pre-injury duties with only a possibility of her being able to perform very light clerical duties. As earlier stated, Professor Marshall was of the view that there was an ongoing contribution from her work. Professor Marshall’s report is listed in the schedule of documents forwarded to Dr Kornan but to me that is no excuse for the manner in which this question was worded. I shall have something to say about this subsequently.
46 I prefer and accept the opinion of Dr Nathar that the plaintiff is suffering from a Major Depressive Reaction following on from an Adjustment Disorder, as well as a Chronic Pain Syndrome. That opinion is consistent with the view expressed by the treating psychologist, Ms Durmaz, that the plaintiff has a Chronic Adjustment Disorder with mixed anxiety and depressed mood, the opinion of Dr Stern to similar effect and with the belief of Dr Douglas that the plaintiff has an Adjustment Disorder with depressed mood. I prefer these opinions to that of Dr Kornan. They seem logical and consistent. I am also of the view that there is merit in the argument advanced by Mr Jewell at T48 and following pages concerning internal inconsistencies or anomalies in the report of Dr Kornan, these being in addition to any observation I have previously made.
47 I also accept that the consequences of the psychological or psychiatric injuries suffered by the plaintiff are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Nathar has described the plaintiff’s prognosis as poor, stating that, on balance, total psychiatric incapacity is likely to be permanent. He has also observed that her capacity to enjoy her social and recreational activities and attend to her activities of daily living on a permanent basis has been significantly impacted by her psychiatric injuries. Ms Durmaz has stated that, from a psychological point of view, the plaintiff is not capable of working and this is likely to continue indefinitely, linking this to her physical condition. Whilst commenting about capacity for suitable employment, the observation of Dr Douglas that the plaintiff has no such capacity and this incapacity is more likely than not indefinite also gives some indication as to his views on the permanence of the situation. Dr Stern expressed the view that the plaintiff’s psychiatric state had stabilised and was prepared to make an assessment pursuant to the relevant guide. I prefer these opinions to that of Dr Kornan. Clearly the balance of evidence favours the view that the consequences of the psychiatric injury will persist for the foreseeable future.
48 As with the physical injury, insofar as the mental injury is an aggravation of a pre-existing condition, it is the consequences of any such aggravation that I shall consider. Essentially an Adjustment Disorder lies at the heart of the diagnosis which I accept and the adjustment in question is one to the back injury and the pain and suffering consequences thereof. Whilst there may have been stresses associated with the plaintiff’s divorces and other family stressors, particularly in approximately 2004 and 2005 and with the plaintiff also feeling drained and stressed as a result of hard work in 2005, these have the appearance of being injuries of a different kind and, in any event, the plaintiff was able to work on in two jobs. It may be that she missed one week of work in approximately 2005, but essentially she was able to engage in a comparatively demanding work schedule. In short, I am of the view that the evidence does not support the proposition that what has occurred is the aggravation of a pre-existing condition and in any event the consequences of any aggravation are those from which the plaintiff now suffers. Further, as is doubtless apparent, I do not accept that the condition from which the plaintiff now suffers results from the vagaries of life. It is a condition specifically related to the back injury which she has suffered.
49 In relation to any possible issue of “disentanglement”, as it used be described, it seems to me that in the present case the medical material can be neatly divided, and fortunately several of the examiners have either concentrated solely upon one of the two conditions or have expressed opinions specifically concentrating on one of the two and excluding the other. Of course, I shall comply with the provisions of s.134AB(38)(h) and (i) of the Act, but the bulk of the medical material is such that this task is made comparatively simple. Indeed, in very helpful submissions, Ms Kaye argued essentially that, even if there was no disentanglement issue, the physical injury, standing alone, failed to satisfy the statutory test. At least in the present case, that approach of viewing the conditions separately and in isolation seems to me to be correct.
(iv) The plaintiff’s employment, training and other developments since the injury 50 Essentially the plaintiff has not engaged in employment since April 2008. At one stage in late 2008 there was discussion about the possibility of her enrolling in a course relating to social welfare at Dandenong TAFE, but nothing came of this. There was also some discussion about the defendant offering her a position in relation to blood deliveries, but again nothing eventuated, and in or about September 2009 the plaintiff’s employment with the defendant was formally terminated. The plaintiff sometimes browses through newspapers looking at employment possibilities, but again nothing has resulted.
Ruling
(a) Pecuniary loss damages 51
I say at the outset that I find that the plaintiff has discharged the burden of proof in relation to the consequences of both the physical and mental injury suffered by her. Each, when viewed separately and standing alone, has destroyed her capacity to earn income in either her pre-injury employment or suitable employment, and this situation is permanent within the meaning of the Act. Dealing firstly with her mental or behavioural disturbance or disorder, I would point out the following observations contained in the medical material:
•
Ms Durmaz, treating psychologist – “From psychological point of view [sic] her anxiety and depression is related to her injury and she does not have a capacity to work now or in the foreseeable future.”
•
Dr Nathar, consultant psychiatrist, examining the plaintiff on her behalf – “Looking purely at the psychiatric viewpoint, it is my opinion that her mental state is so poor that she is totally unfit for pre-injury duties. She is also totally unfit for alternative duties on psychiatric grounds alone. Total psychiatric incapacity on balance is likely to be permanent as her prognosis is poor.”
•
Dr John Douglas, consultant psychiatrist, examining on behalf of the defendant – “She cannot return to any useful work at the present time (8 June 2010) …This is because of her back pain, and her psychiatric symptoms together…I think it more likely than not that her incapacity for work will continue indefinitely.”
•
Dr Stephen Stern, examining on behalf of the defendant, expressed no clear view as to capacity for employment and I do not accept the opinion of Dr Kornan that the plaintiff is capable of engaging in modified pre-injury duties or alternative duties. His views are effectively “one out” and in addition I tend to agree with Mr Jewell that his report contains some internal contradictions or anomalies.
52 Further, as indicated, I regard the plaintiff as a reliable witness and one of truth. In her affidavit of 2 May 2011 the plaintiff has sworn that her memory is not as good as it was, that she has problems concentrating, that she cannot seem to focus, and that she often feels depressed and anxious. Obviously these problems would make engaging in employment difficult.
53 In summary, I am of the view that the plaintiff’s capacity to engage in employment has been destroyed by reason of her mental or behavioural disturbance or disorder, and that this warrants the description of it as being “severe”.
54 In relation to the plaintiff’s physical condition, I would refer to the following extracts from the medical material:
• Dr Woo, treating general practitioner – “Not taking into consideration of depression (sic), she is currently unfit for any type of work as she has problem coping with her normal household work at home. The prognosis is poor. She is permanently incapacitated for any type of work.” • Mr Barrett, treating orthopaedic surgeon – “Ms Ozer remains quite unfit to consider a return to even light and limited work, now or into the foreseeable future.” • Professor Marshall, examining on behalf of the defendant – “She may have a capacity for suitable employment but is likely to have difficulties returning to the workforce…I believe it is unlikely she will recover any more work capacity.” 55 I would also refer to the following question directed to Professor Marshall and his answer:
“Do you believe that with further treatment and rehabilitation the worker would be able to successfully return to work? If so, please state the following:
Not in my opinion.”
56 The approach of Professor Marshall is perhaps a little ambiguous as he has also referred to the plaintiff having a current potential work capacity, but the overall impression given is that he does not believe that the plaintiff will be able to return to the workforce.
57 In any event, I accept the opinions of those who have treated the plaintiff, namely Dr Woo and Mr Barrett. I prefer them to the views of Dr Brown and Dr Fraser. The plaintiff’s capacity to engage in suitable employment has been permanently destroyed by her physical injury.
58 In short, I accept that each of the injuries suffered has destroyed the plaintiff’s capacity to engage in suitable employment for the foreseeable future. Accordingly, no question of comparable earnings arises pursuant to s.134AB(38)(e) and (f). Given the nature of the plaintiff’s injuries and incapacity, I am not of the view that s.134AB(38)(g) operates to her detriment. I accept that she has done little more than browse through the newspapers in relation to possible suitable employment, but, bearing in mind her condition, I am not of the view that it is in any way a failure to engage in rehabilitation or retraining, or a lack of motivation on the part of the plaintiff, that contributes to or is responsible for her being out of the workforce.
59 As previously stated, I am of the view that the destruction of her earning capacity is permanent within the meaning of the Act. In all of the above circumstances I find that the plaintiff has discharged the burden of proof and is entitled to leave to bring proceedings for pecuniary loss damages.
(b) Pain and suffering damages 60 The plaintiff having established that she is entitled to leave in respect of pecuniary loss damages, she is then also entitled to leave in respect to pain and suffering damages. In this regard I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170. Insofar as the mental injury is concerned, I appreciate that the decision in Abdulle dealt with the consequences of a physical injury. However, I see no reason why a similar approach should not be adopted in relation to mental or behavioural disturbances or disorders. I would refer to the previous decision of this Court in Muir v Oak Park Formwork Pty Ltd (in liquidation) & Anor [2011] VCC 1765 in which, following agreement in relation to the above proposition, I ruled accordingly. A similar approach was adopted by Her Honour Judge Kennedy in Yilmaz v Link Property Services [2011] VCC 88. Of course, in the present case I am also finding that the plaintiff’s capacity to earn income has been destroyed by her physical injury.
(c) Some general observations 61 The following observations essentially do not constitute reasons for my decision, save insofar as they may reflect upon part of the opinion given by Dr Kornan as discussed above. However, there would appear to be certain features of the manner in which the Victorian WorkCover Authority, via its insurer, handled aspects of this matter which seem to me to give an impression which could be described as being at least unfortunate. I appreciate that the matters to which I shall now turn arose at least partly in the context of the plaintiff’s successful claim for statutory benefits and the termination of these. However, the report of Dr Kornan, and particularly the portion to which I shall again refer, was relied upon by the defendant in this application.
62 The VWA purports to be, and is obliged to be, a model litigant operating on behalf of the State of Victoria and funded by it, and it is dealing with injured lay people often far from familiar with the operations of a complex act. It seems to me to be important that it not only acts as a model litigant but gives the appearance of so doing. Recently I made some comments about it in this regard in Bates v Crosbie Tiles Pty Ltd [2011] VCC 838. In the present case, and for the aspects of it which I am about to discuss, there may well be a simple and quite proper explanation. However, I could well understand a reasonable bystander forming the impression that what has occurred was unfortunate or suspicious. I would add that the material to which I am about to refer emanated from the defendant’s insurer and not from the solicitors acting on behalf of the defendant. I am in no way critical of the manner in which they have handled the preparation and presentation of this case. I turn now to what has occurred, having earlier touched upon part of this.
63 On 25 August 2010 the insurer forwarded directly to the plaintiff what is in essence a notice of a determination which it had made, this notice being in the form of a letter. Indeed, given that the notice was forwarded to the plaintiff almost exactly 130 weeks after she ceased work following the injury in April 2008, this could well have been a notice following a review pursuant to s.114 of the Act, although this is not spelt out. The conclusion of the notice specifically stated that it was “on behalf of WorkSafe Victoria, a trading name of the Victorian WorkCover Authority”. The notice referred, inter alia, to recent reviews by Professor Marshall and Dr Douglas and stated that:
“As a result of the above assessments QBE has determined that you do not have a capacity for suitable employment and your incapacity is likely to continue indefinitely.”
64 It was apparent that the plaintiff’s weekly payments of compensation and other statutory benefits were to continue, it being inherent in such determination that the plaintiff still suffered a compensable injury. As at the time of the notice, the originating motion in relation to serious injury had been issued.
65 By that time Dr Fraser had also reviewed the plaintiff, reporting on 28 May 2010. It is to be remembered that, in that report, he stated that there was no ongoing work-related injury of a physical nature. However, there is no reference to his report in the notice, with the insurer opting to refer to the reviews mentioned above and determining that the plaintiff’s incapacity was likely to continue indefinitely. It informed her of this in a formal fashion. It is apparent that both the physical and the mental injury of the plaintiff had been considered.
66 The insurer then organised for a review of the plaintiff by Dr Paul Kornan on 8 December 2010 in respect of the mental injury. I shall repeat the ultimate question which he was asked to answer:
“Given that there is opinion that the worker no longer has a compensable physical injury could you please comment on whether any psychiatric injury is still related to the physical injury or is it a result of other factors/reasons?”
Almost inevitably, given that the wording of the question had virtually tied the hands of Dr Kornan, his answer was as follows:
“I note that you stated that there was opinion that the worker no longer has a compensable physical injury. If that be the case, then any secondary psychiatric condition is clearly, no longer related to a physical injury from employment”.
67 On 17 March 2011, less than seven months after writing to the plaintiff informing her that it had determined that her incapacity was likely to continue indefinitely, the insurer again wrote directly to the plaintiff informing her that she would be no longer entitled to weekly payments of compensation and payment of medical and like expenses. The reasons for the decision to terminate benefits set out specifically that such termination was because her incapacity for work was not materially contributed to by an injury arising out of or in the course of her employment or by an injury which entitled her to compensation. A bystander might form the suspicion that the ultimate question addressed to Dr Kornan, worded as it was, was loaded in such a way as to produce an answer upon which the insurer could rely when terminating benefits and so terminating them for the reasons subsequently expressed and set out above. If the insurer was to terminate benefits on the basis referred to above, it needed to be able to dispose of the mental injury concerning which Drs Douglas and Stern had given it no comfort.
68 Secondly, such bystander might form the view that, from a model litigant, such question was unfairly loaded. Whilst technically accurate, the question which is required to be answered by Dr Kornan contains no reference to the fact that the VWA was also the holder of opinion, or opinions, including that of someone examining on its behalf, that the worker still had a compensable physical injury. The impression created could well be that of a carefully worded question, selective in relation to its factual basis, designed to obtain, if not virtually compel, an answer which would eliminate an obstacle preventing termination of payments.
69 Thirdly, given the timing of events and the arrangement of the examination by Dr Kornan, with the question referred to above, so soon after the insurer had determined that the plaintiff had an incapacity which would continue indefinitely, a particularly cynical bystander might wonder whether an attempt was being made to ensure that the plaintiff was not receiving statutory benefits by the time that her application came on for hearing. The examination by Dr Kornan post-dates the application being set down for hearing. It does not appear that the plaintiff was sent for further review by Dr Douglas. I am sure that above is not the impression or appearance that the VWA, as a model litigant, would want to create.
70 Further, in writing directly to the plaintiff (who is, after all, a person of no great education and suffering both physical and mental injuries) so as to inform her of the termination of her statutory benefits, the VWA, in justifying its decision to terminate benefits, stated the following in relation to Dr Kornan:
“After considering the medical evidence presented to him, he was of the opinion if you no longer have a physical injury, then any secondary psychiatric condition is clearly, no longer related to a physical injury from employment.”
71 That Dr Kornan was answering a specific question, and the wording of that question, is not set out. Our bystander might again form the opinion that, even if technically correct, there is something unsatisfactory, if not misleading in the manner in which Dr Kornan’s opinion has been summarised and presented. The overall impression created could be that, when it had failed elsewhere with other consultant psychiatrists, the VWA directed to Dr Kornan a question worded in such a way as to obtain a result which would justify the termination of benefits for the mental injury, and then paraphrased it in the notice which it sent directly to the plaintiff. This is not a happy impression to convey. It is also to be remembered that the insurer was dealing with a person who, on the basis of the available medical material, suffered from a pain syndrome with psychological features including anxiety and depression. One might think that it might not do much for the mental health of such a person firstly to be informed in a formal fashion that it had been determined that her incapacity was likely to continue indefinitely and then, within seven months, being informed that her benefits would stop altogether.
72 I also note that in the letter of 17 March 2011 terminating benefits quite a lengthy reference is made to the opinion of Dr Brown and his report of 26 May 2010. It is stated that Dr Brown was of the opinion that the plaintiff had a work-related aggravation of constitutional low back pain, with resolution subsequently and to the fact that he was also of the opinion that he did not believe that the plaintiff was likely to have any permanent incapacity as a result of any work-related injury. It was further said that it was Dr Brown’s opinion that any effect from work had been minor and temporary. What is not set out is that Dr Brown had reported again on 1 February 2011, in excess of six weeks before the letter of termination was sent, and that in that report he had stated that it was reasonable to say that the plaintiff had some impairment of spinal function as a result of the compensable injury and was likely to have this for the foreseeable future, and that it was reasonable to say that she had some partial incapacity for employment as a result of compensable injury. The plaintiff was simply not told this, but was only told of his earlier opinion which sits more comfortably with the grounds of termination – namely that there was no longer any material contribution from an injury arising out of or in the course of employment. Again, there may be some simple explanation but the appearance is unfortunate, to employ comparatively moderate terminology.
73 Pursuant to the Model Litigant Guidelines, the VWA is obliged to act fairly in its handling of claims and litigation. It’s obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules, and, for example, goes beyond a requirement for lawyers to act in accordance with their ethical obligations. I refer to this last-mentioned requirement not because there is anything that suggests that the lawyers representing the defendant have done anything but act properly, but as an illustration of the high level of honesty and ethical behaviour that is required.
74 There is nothing in those Guidelines which justifies an approach of “win at all costs” or “terminate benefits at all costs”. Even if in reality this was not the approach that was adopted by the VWA, and there is some explanation for what has occurred, as I have stated several times, it is also important that the appearance of an honest and ethical approach of very high calibre be maintained. I am sure that the VWA will want to ensure that this occurs.
Conclusion
75 In conclusion the plaintiff is successful. She has discharged the burden of proof. Leave is granted to her to bring proceedings in respect to both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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