Pena v Citywide Service Solutions Pty Ltd
[2016] VCC 1597
•2 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00737
| JORGE PENA | Plaintiff |
| v | |
| CITYWIDE SERVICE SOLUTIONS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2016 | |
DATE OF JUDGMENT: | 2 November 2016 | |
CASE MAY BE CITED AS: | Pena v Citywide Service Solutions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1597 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychiatric injury – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Phillippiadis v Transport Accident Commission [2016] VSCA 1; Barwon Spinners v Podolak (2005) 14 VR 622; Davies v Nilsen & TAC [2014] VSCA 278; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment:Leave granted in respect of pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC Mr B Hutchinson | Tasiopoulos Lambros & Co |
| For the Defendant | Mr R Stanley | IDP Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff was employed as an accounts clerk with the defendant, commencing in September 2007. The plaintiff alleges that when he was required to work under a new supervisor in early 2009, this supervisor subjected the plaintiff to bullying and harassment, and as a consequence, he suffered a psychiatric injury (“2009 bullying complaint”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (c) of the definition contained in s134AB(37) and leave is sought in respect of pain and suffering and loss of earning capacity.
3 Mr R McGarvie QC appeared with Mr B Hutchinson for the plaintiff and Mr R Stanley appeared for the defendant.
4 The plaintiff was called to give evidence and was cross-examined. Medical reports and other material were tendered in evidence. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 The plaintiff has the burden of proving his psychiatric impairment is both serious and permanent. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1
6 For reasons that I will explain below, I am satisfied that as a consequence of his employment, the plaintiff suffers a chronic Depressive Disorder, which has resulted in a permanent impairment, the consequences of which are severe.
Relevant background
7 The plaintiff is forty‑eight years of age and is a single man, living alone.
8 The plaintiff was born in Argentina and migrated to Australia when aged nine. He completed both primary and secondary school, and thereafter completed an Associate Diploma in Accounting at Swinburne College of TAFE.
9 The plaintiff then worked for numerous employers as an accounts clerk through to 1998. He then opened and ran a coffee shop at South Melbourne Market and ran that business for about three years. The plaintiff thereafter did some temping work for various companies.
10 In the two years prior to commencing employment with the defendant, the plaintiff earned $2,375 in the financial year ending 30 June 2006 and $9,545 in the financial year ending 30 June 2007. When asked about this in cross-examination, the plaintiff said that he was in an abusive relationship during that period, and would often not work due to the physical signs of the abuse.[2]
[2]Transcript (“T”) T 11, L 22-28
11 Whilst in that abusive relationship, and at some point prior to November 2007, the plaintiff attended the Alfred Hospital with chest pain.[3]
[3]T 10, L 3-8
12 On 27 November 2007, he also attended the Royal Melbourne Hospital in relation to chest pain. The record of that attendance indicated the plaintiff was diagnosed with a viral illness, with a secondary diagnosis of anxiety.[4] It further stated that the plaintiff had a past history of anxiety and recurrent atypical chest pain. In relation to medication, it noted that the plaintiff had taken Nurofen and there is a question mark as to whether he took anti-anxiety medication.[5] When asked about this attendance in cross-examnation, the plaintiff said he could not recall it.
[4]Defendant’s Court Book (“DCB”) 89
[5]DCB 90
13 Since August 2007, the plaintiff’s general practitioner was Dr Tass Tasiopoulos, and in the two years prior to the 2009 bullying complaint, the plaintiff would obtain Botox injections from him.[6] Dr Tasiopoulos’ clinical records indicated that prior to the 2009 bullying complaint, the plaintiff was only prescribed medication for acne and weight loss.
[6]T 13, L 4-11
14 The plaintiff said that prior to the 2009 bullying complaint, he had an active social life and was more often out of his apartment, than at home.[7] He enjoyed going to the movies, going out for dinner, attending sporting events and skiing.[8]
[7]Plaintiff’s Court Book (“PCB”) 6
[8]PCB 87
Injury and its consequences
15 The plaintiff commenced employment with the defendant in about September 2007. He was employed on a full-time basis as an accounts clerk.
16 The plaintiff complained that he began experiencing difficulties at work in early 2009, when his new supervisor commenced. The plaintiff alleged that his new supervisor criticised and bullied him,[9] and unreasonably complained about his work performance to the Human Resources Department.[10]
[9]PCB 3
[10]PCB 4
17 On 21 May 2009, the plaintiff attended upon Dr Tasiopoulos and provided a history that over the previous two months he considered himself to have been “victimised and inappropriately criticised by his supervisor”.[11] Dr Tasiopoulos provided counselling and prescribed Lexapro and Xanax for his anxiety.[12]
[11]PCB 31
[12]PCB 32; T 80, L 8-14
18 On 30 May 2009, Dr Tasiopoulos referred the plaintiff to psychologist, Dr Angela Papadinitriou for counselling. Dr Papadinitriou initially saw the plaintiff weekly and subsequently on a fortnightly basis. She diagnosed the plaintiff as suffering Adjustment Disorder with mixed anxiety and depressed mood. [13] She attributed his condition to his work situation and noted there was no pre-existing psychological disorder.[14]
[13]PCB 30
[14]PCB 30
19 The plaintiff said that his work situation continued to deteriorate, such that by 15 June 2009 he suffered an anxiety attack for which he attended the Royal Melbourne Hospital, and stayed overnight.[15]
[15]PCB 5
20 The plaintiff has not returned to any paid employment since that time.
21 The plaintiff said that Dr Papadinitriou then moved overseas, and that Dr Tasiopoulos subsequently referred him to another psychologist, Ms Paula Teggelove. The plaintiff attended upon Ms Teggelove on 25 January 2012 through to at least 13 December 2013.[16]
[16]Exhibit D
22 In a report dated 21 August 2012, Ms Teggelove stated that as the plaintiff’s symptoms had not resolved, and given the chronic nature of his condition, she considered him to be suffering a Major Depressive Disorder and Generalised Anxiety Disorder.[17]
[17]PCB 69
23 Over several years, the plaintiff received numerous warrants, in relation to unpaid fines, some of which were incurred by his former partner when driving the plaintiff’s car. As a result, the plaintiff came before the Magistrates’ Court in October 2011 and was ordered to perform approximately 130 hours of volunteer work, under a Community Based Order.[18] In cross-examination the plaintiff acknowledged that while being served with a warrant by a police officer, had caused him some anxiety, he was never concerned at the prospect of being jailed.[19]
[18]DCB 88
[19]T 25, L11-16, T 26, L 13-15
24 The plaintiff completed this community work, for an organisation in Brunswick, where he was required to pack boxes of chocolates for charities.[20] He could not precisely recall how often or for how long he did such work, but thought it was for a few hours, two to four days a week, and for only a few weeks.[21] The contemporaneous clinical records of his psychologist Ms Teggelove, indicated that the community work was performed from January to March 2012 and was for only two days a week.[22] Ms Teggelove’s notes of 25 January 2012 referred to the plaintiff suffering an anxiety attack after such work.[23] A subsequent note on 15 February 2012 stated that the community work was teaching the plaintiff “patience and humility.”[24]
[20]T 26, L 19-31, T 27, L 1-6
[21]T 28, L 3-7
[22]Exhibit D
[23]Exhibit D
[24]Exhibit D
25 On 14 March 2012 Ms Teggelove’s note recorded:
“…the 2 days at work are not helping much. I’m not sure I’m ready for it - overwhelms me – I feel so exhausted. Wednesdays and Thursdays. By Friday I’m exhausted. It’s frightening that I’m not coping with two days. How am I going to cope with full-time job. I get so anxious - at work.”[25]
[25]Exhibit D
26 In April 2012, the plaintiff was referred to the Alfred Hospital’s Psychiatric Unit for management of his ongoing depression. When asked about this in cross-examination, the plaintiff said he while he had no recollection, he did not deny that he attended.
27 In a letter dated 27 April 2012, a psychiatric registrar from the Alfred Hospital, Dr Atima Saxena, detailed the plaintiff’s presentation, and noted symptoms of depression associated with low moods, lack of sleep, difficulty in concentration, anhedonia, feelings of worthlessness, increased appetite and weight gain, lack of motivation, avoidance of social contacts, decrease in sex drive, panic attacks and suicidal ideation.[26] She further noted that such symptoms developed after the plaintiff had been bullied at work three years previously.[27]
[26]PCB 107
[27]PCB 107
28 Dr Saxena diagnosed a major depressive episode with anxiety, panic attacks and post-traumatic disorder. She recommended that the plaintiff cease taking Cymbalta, and instead trial Sertraline, and that he should seek counselling through a community organisation or a private psychiatrist if the plaintiff’s “parents could make the co-payment.”[28]
[28]PCB 109
29 In June 2012, the plaintiff was criminally charged for driving an unregistered motor vehicle.[29] He acknowledged this caused him some stress at the time.[30]
[29]DCB 70
[30]T 24, L 11
30 In August 2012, the plaintiff was also charged with not having a ticket on public transport.[31] Although the plaintiff could not recall this incident, he accepted that it caused him stress.[32]
[31]DCB 70
[32]T 24, L 12-19
31 In January 2013 the plaintiff was diagnosed with sleep apnoea.[33] The plaintiff said that he underwent a sleep study and then trialled the use of a CPAP machine for a month.[34] The plaintiff acknowledged that his sleep apnoea interferes with his sleep.[35]
[33]PCB 49
[34]T 30, L 13-18
[35]T 30, L 10
32 In July 2014, Dr Tasiopoulos referred the plaintiff to psychiatrist, Dr Matthew McArdle, for treatment of his ongoing anxiety and depression. In the referral letter Dr Tasiopoulos stated that the plaintiff’s current medications included Efexor, Valdoxan and Valium.
33 In August 2014, a similar letter of referral was addressed to psychiatrist, Dr Steven Adlard. The plaintiff did not see either doctor. Aside from his belief that one of those doctors was not seeing new patients, the plaintiff could not recall why he did not attend.[36]
[36]T 17, L 8-27, T 45, 9-17
34 For the last two years, the plaintiff has attended upon general practitioner Dr Richard Moore for unrelated health matters. He said that Dr Tasiopoulos was often away at conferences, and that he would see Dr Moore for minor ailments, such as a cold or flu.[37]
[37]T 46, 1-5
35 Dr Tasiopoulos retired from practice last month, and the plaintiff’s care is now exclusively under Dr Moore. Dr Moore has since recommended the plaintiff double his dosage of Valdoxan, which the plaintiff says has given him “... a little bit more oomph just to get things done.”[38]
[38]T 46, L 11-12
36 Dr Moore provided the plaintiff’s solicitor with a letter dated 13 October 2016, stating that he had no record of the plaintiff’s work injury or the medical problems relating to it.[39] The plaintiff’s explanation for this was that Dr Moore knew about the medication he was on, and the plaintiff presumed there would be shared knowledge between the doctors as to his medical condition.[40]
[39]Exhibit E
[40]T 16, L 1-7
37 There is a possibility that Dr Moore will refer the plaintiff to a new psychologist, but an appointment has not yet been arranged. The plaintiff hoped that this would result in an improvement in his levels of function.[41]
[41] T 16, L 25-32
38 The plaintiff currently takes Atenolol, Valdoxan and Valium for his psychiatric condition.[42]
[42]PCB 116
39 The plaintiff considers that he gets confused and muddled and that he has difficulty recalling things.[43]
[43]PCB 8
40 The plaintiff said he continues to have nightmares regarding the circumstances of the 2009 bullying complaint, and still suffers from occasional panic attacks.[44]
[44]PCB 8
41 The plaintiff is now very much a recluse, preferring to be home alone than in the company of others. While he will sometimes go out if forced to by his friends, he finds that difficult.[45]
[45]PCB 8
42 The plaintiff said he no longer cares for his appearance, and has gained over 40 kilograms in weight. His mother comes to his house most days and helps him with shopping, domestic tasks and paying bills.[46]
[46]DCB 67
43 The plaintiff no longer goes skiing and does not attend sporting events.[47]
[47]PCB 101
Medico-legal evidence
44 The plaintiff relied upon medical reports from medico‑legal psychiatrists, Dr Michael Epstein and Dr George Wahr.
45 Dr Epstein examined the plaintiff in February 2011 and July 2014. In his first report dated 7 February 2011, Dr Epstein diagnosed the plaintiff as suffering a Major Depressive Disorder, and noted that he had experienced panic attacks, with agoraphobia. He considered the plaintiff’s psychiatric condition was related to his employment with the defendant and that he was unfit to return to work in any capacity because of his mental illness.[48] Further, Dr Epstein detailed the plaintiff’s relevant background and included the following paragraph:
“In early 2008 he became involved in a relationship with a man who was working in a call centre. His partner later began living with him. His partner had multiple sclerosis and over time his condition progressively deteriorated and he was having to spend more and more time looking after him.”[49]
[48]PCB 76
[49]PCB 72
46 In cross-examination, the plaintiff denied that he having ever lived with his man, who he said was only ever a friend. He accepted that his friend’s condition had deteriorated, but denied looking after him, and said he simply helped him.[50]
[50]T 21, L 8-23
47 In Dr Epstein’s report dated 7 August 2014, he noted that the plaintiff had gained more weight since his first examination and that his sleep pattern remained erratic, with periods of insomnia and hypersomnia. He noted that at times the plaintiff felt “hopeless, helpless, useless and worthless”[51] and he was sometimes tearful. Dr Epstein also noted passive suicidal thoughts.[52] Dr Epstein concluded the plaintiff was still suffering Major Depressive Disorder, with Panic Disorder and Agoraphobia. He remained of the opinion that the plaintiff was unfit for all work, and considered that this would continue into the indefinite future.
[51]PCB 80
[52]PCB 80
48 In this report, Dr Epstein noted the following history:
“He had been seeing his psychologist, Paula Teggelove, funded by a mental health plan but funding ceased in early 2014 and did not resume for another two months and he now sees her every two weeks.”
49 The plaintiff was cross-examined on this, but could not recall providing such a history to Dr Epstein. In any event it seems inconsistent with the clinical notes provided by Paula Teggelove, which indicated that treatment ceased in about February 2013.
50 Dr George Wahr examined the plaintiff on three occasions, in October 2010, August 2014 and July 2016. In his first report, dated 22 October 2010, Dr Wahr stated that in his opinion the plaintiff suffered from an agitated depressive reaction, which he considered to be work-related.[53] Dr Wahr considered the plaintiff was unfit for all work and recommended that he consult a psychiatrist for supportive therapy and monitoring of his medication.[54]
[53]PCB 89
[54]PCB 90
51 In his second report, dated 11 August 2014, Dr Wahr re-confirmed the diagnosis of an agitated depressive reaction, which had worsened in the last four years and which he considered to be chronic, firmly established and stabilised.[55] Dr Wahr again recommended that the plaintiff be reviewed by a psychiatrist. He noted however that while optimal psychiatric treatment might result in some symptomatic improvement, it was unlikely to resolve the plaintiff’s condition.[56]
[55]PCB 97
[56]PCB 97
52 In his most recent report, dated 27 July 2016, Dr Wahr re-confirmed the diagnosis of a chronic and firmly established agitated depression. He again stated that even with optimal psychiatric treatment, the plaintiff’s condition would not resolve. He considered that the plaintiff was unable to work in any capacity, and considered this would continue indefinitely.[57]
[57]PCB 103
53 Dr Wahr also commented that the plaintiff’s current medication, that being 25 milligrams of Valdoxan, was a “tiny dose for a big man”,[58] and noted that the plaintiff also took Valium, 5 milligram tablets, two a day.
[58]PCB 100
54 The defendant arranged for the plaintiff to be examined by medico‑legal psychiatrist, Dr Rod Farnbach, in July 2009 and September 2010. In his first report, dated 7 July 2009, Dr Farnbach considered that the plaintiff suffered a Major Depressive Disorder of mild/moderate severity and anxiety.[59] Further, he accepted that the plaintiff’s employment contributed to his psychiatric condition.
[59]DCB 47
55 Dr Farnbach stated that at that time, the plaintiff was not capable of working. However as his condition was improving, Dr Farnbach considered the plaintiff should be able to return to work soon. Dr Farnbach also noted that the plaintiff considered that, although he was unable to work at his normal workplace, “he could work elsewhere.”[60]
[60]DCB 45
56 In his subsequent report, dated 27 September 2010, Dr Farnbach diagnosed the plaintiff as suffering Major Depressive Disorder, with chronic anxiety and Panic Disorder with agoraphobia.[61] He obtained a history from the plaintiff, who considered his condition to have worsened over the last year. Dr Farnbach noted that the plaintiff had developed a facial tic, with eyelid twitching, as well as heart palpitations. Dr Farnbach stated that because of his condition, the plaintiff was not capable of working, in either his pre-injury workplace or in any other workplace.[62] Dr Farnbach recommended that the plaintiff should be referred to a psychiatrist for more intensive management of his medication. He concluded that although the plaintiff’s condition:
“has grown more severe over the last year, the ultimate prognosis is good for a recovery from his condition, but this will not happen in the next few weeks.”[63]
[61]DCB 58
[62]DCB 58
[63]DCB 58
57 It is apparent from his report that Dr Farnbach was hopeful that improvement would be obtained through alterations to the plaintiff’s medication and treatment such as TMS (Transcranial Magnetic Stimulation).[64]
[64]DCB 59
58 The defendant then arranged for the plaintiff to be examined by psychiatrist, Dr Timothy Entwisle, in June 2016. In his report dated 3 July 2016, Dr Entwisle diagnosed the plaintiff as suffering a Chronic Adjustment Disorder with depressed and anxious mood. He considered the plaintiff had features of “learned helplessness”[65] and “passive dependency”,[66] whereby he relies upon his mother for daily assistance.
[65]DCB 66
[66]DCB 67
59 Dr Entwisle considered that, given the plaintiff’s
“self-belief that he is totally incapacitated, it is difficult to see how he could be rehabilitated at such a late stage. Theoretically he would however, on the basis of my examination and his described symptoms, have a capacity for suitable employment.”[67]
[67]DCB 67
60 In the concluding part of his report, Dr Entwisle stated that although the plaintiff’s employment was a significant contributing factor in the onset of his psychiatric condition, since then:
“other factors appear to have taken over, and in that regard I refer to Mr Pena’s lifestyle. In such cases, surveillance can be helpful.”[68]
[68]DCB 67
61 It is unclear what lifestyle factors Dr Entwisle is referring to here and he does not elaborate on them.
62 The defendant admitted it had obtained video surveillance of the plaintiff, but nothing was tendered.[69]
[69]T 51, L 2
63 In circumstances where there is no evidence the plaintiff suffers any alcohol or drug dependency issues, Mr McGarvie suspected that Dr Entwisle was referring to the plaintiff’s homosexuality.
64 I consider there is some force in Mr McGarvie’s submission that this is the type of comment one would expect of an advocate, rather than an independent medico‑legal psychiatrist. In any event, the unexplained comment is sufficiently peculiar for me to have reservations as to Dr Entwisle’s overall opinion.
Plaintiff’s credibility
65 I accepted the plaintiff as a reliable witness who made no attempt, in my assessment, to exaggerate his disability or mislead the court as to the extent to which his psychiatric condition impacted upon his life.
66 It was apparent that his memory is poor, and on multiple occasions he answered a question with “I cannot recall”. However he then generally accepted the history put to him.
67 The plaintiff made appropriate concessions in relation to events which had caused him anxiety, including:
–an abusive relationship in 2006 and 2007;
–being served with a warrant by a police officer;
–being involved in Magistrates’ Court matters, for criminal infringements, as well as his disputed weekly payments claim;
–his unit burning down in late 2015.
68 I consider that such concessions indicated the plaintiff’s trustworthiness, in that he did not seek to allege that his only source of stress arose from the 2009 bullying complaint.
69 In giving his evidence, the plaintiff appear melancholic. This was demonstrated when he was asked in re-examination how his life was in the year prior to the 2009 bullying complaint. His answer was that he had “a good life”.[70] The plaintiff made no attempt to talk up his former life, and instead gave a very short, nondescript answer.
[70]T 40, L 22-24
70 The defendant criticised the plaintiff for his lack of candour, and in particular his failure to disclose relevant matters of history in his affidavits or to the medico-legal psychiatrists. Mr Stanley submitted the following three matters were of such significance that they should have been disclosed, and that the plaintiff’s failure to do so impacts upon the reliability of the medico-legal opinions:
(i) The plaintiff was in an abusive relationship for approximately 18 months, in 2006 and 2007. In cross-examination the plaintiff said that as a consequence of the physical abuse, he often had bruising and wounds, which prevented him from working, as he did not want to leave the house. The plaintiff further acknowledged that he suffered some chest pain, and that on two occasions he attended hospital emergency departments, for treatment. The plaintiff said it was an anxious time, but that it was his physical wounds, not his anxious state that restricted him working.
The plaintiff did not receive any psychological treatment at the time, and it does not appear that he took any anti-anxiety medication. The Royal Melbourne Hospital record is equivocal on this history, and no such medication was prescribed by Dr Tasiopoulos in the three months prior to his attendance at the Royal Melbourne Hospital.
I accept that this was a painful period for the plaintiff, and something he was either reluctant to disclose due to its sensitivity, or due to his wanting to forget it.
The plaintiff had worked with the defendant for 15 months prior to the 2009 bullying complaint, and demonstrated a capacity to work full-time. His medical records demonstrate that his only medical concern at that time, was in relation to his physical appearance. Although I accept that the abusive relationship was a relevant part of the plaintiff’s history, his failure to disclose it does not impact upon his credit, nor does it diminish the reliability of the medico-legal opinions.
(ii) In August 2014, the plaintiff travelled to Spain with his mother and sister, to sprinkle his dead father’s ashes. I accept the plaintiff’s evidence that this had been his father’s wish and that it was a trip which came with mixed emotions. I also accept that the plaintiff’s concern to be around other people, caused him to feel anxious prior to leaving.
I consider this trip to be of minimal relevance, both in my assessment of the plaintiff’s serious injury consequences and in the assessment of the medico-legal doctors. Therefore I make no criticism of the plaintiff’s failure to disclose this trip prior to giving viva voce evidence.
(iii) In early 2012, the plaintiff did some community work, as part of a criminal sanction imposed for the non-payment of numerous traffic infringements. The plaintiff said this work involved packing chocolates for charity, and was part-time, for a relatively short period of time. During this period, the plaintiff said he gained some benefits, as he felt he was helping others. On another occasions however, he told his Ms Teggelove, that he had suffered an anxiety attack, and that he also felt overwhelmed and exhausted.
I consider the plaintiff’s failure to mention this non-remunerative work is understandable in circumstances where it was community work, performed under legal compulsion, and that was relatively low-level, involving minimal hours. I accept that the plaintiff had difficulties performing such work, and that if he had thought to mention it to the medico-legal psychiatrists, it would likely have solidified the opinions of Dr Epstein and Dr Wahr, that the plaintiff had no capacity for work.
Permanent
71 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent.
72 Mr Stanley submitted that the plaintiff’s condition is not stable, in circumstances where he has not obtained regular psychiatric treatment, despite this being recommended by numerous psychiatrists. Further, the plaintiff only recently increased his medication, and may soon consult a new psychologist.
73 The plaintiff could not recall why he did not attend upon the psychiatrists whom Dr Tasiopoulos referred him in July and August 2014. He could also not recall attending the Alfred Hospital for a psychiatric review in April 2012. The plaintiff said the defendant’s insurer had never paid for his medical treatment, and instead he relied upon Medicare benefits. The plaintiff also said that his only source of income was a disability pension, and money given to him by family members. I consider financial difficulties may have played a role in the plaintiff not obtaining regular psychiatric or psychological treatment.
74 I do not consider it unusual for a patient to receive ongoing anti-depressant medication from a GP and never consult a psychiatrist, despite recommendations to the contrary. I do not criticise the plaintiff for this, nor do I consider it impacts upon the veracity of his complaints.
75 I am satisfied that the plaintiff’s injury and the consequences which flow from it are permanent. The plaintiff recently doubled his daily dose of Valdoxan, and although this has given him a small improvement, it has not led to a dramatic change in his condition. Given the chronic nature of the plaintiff’s condition, which has persisted for more than seven years, I consider that any future improvements, which may be obtained through either a change in medication or counselling treatment, will be marginal. This conclusion is supported by the recent opinions of Dr Wahr, and Dr Entwisle.
Loss of earning capacity
76 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, as a consequence of his psychiatric condition, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning in suitable employment.
77The definition of suitable employment is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[71]
[71]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 at [25] and [28]
78In undertaking this task, I must compare what the plaintiff is capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“a. the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
b. the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[72]
[72]s134AB(38)(f)
79The plaintiff’s gross income from the defendant in the financial year in which he suffered his injury was to be $43,764.00. This annual package had been increased from the year prior, based on the plaintiff’s work performance.[73]
[73]PCB 122
80Accepting this sum as the plaintiff’s pre-injury earning capacity, the gross average weekly wage is $841.62 per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning more than $504.97 per week, and that such a restriction on his earning capacity will be permanent.
81In cross-examination, the plaintiff was asked as to whether he would be able to perform his pre-injury duties, in a workplace without the alleged bully. He said he would have difficulties, and that he could not do the job. The plaintiff said he had not applied for any jobs since ceasing work in June 2009, but denied this was a personal choice, unrelated to his injury.[74] The plaintiff said that even with the small improvement he has recently obtained from his increased medication, he does not consider he will be able to get back to work in the future.[75]
[74]T 38, L 21-31
[75]T 46, L 13-14
82The plaintiff’s long-standing general practitioner, Dr Tasiopoulos, considered the plaintiff has no work capacity and that this is likely to continue indefinitely, due to his chronic depression and anxiety. Dr Tasiopoulos saw the plaintiff for approximately two years prior to the 2009 bullying complaint, and has treated him regularly in the subsequent seven years. He is the doctor who knows the plaintiff best, and therefore I give significant weight to his opinion.
83Both Dr Epstein and Dr Wahr consider the plaintiff’s psychiatric condition is such that he is indefinitely incapacitated for all work. For the reasons stated above, I do not consider the gaps in the medical history obtained from the plaintiff, sufficient to vitiate those opinions.
84I have reservations in relation to the opinion of Dr Entwisle, given his unexplained comment regarding the plaintiff’s “lifestyle”.
85I note that Dr Farnbach considered the plaintiff’s condition had deteriorated between July 2009 and September 2010, such that he was, at that time, incapacitated for work. Dr Farnbach pondered the possibility of the plaintiff attempting a graduated return to work in 2011, but that did not occur, and Dr Farnbach did not examine the plaintiff again.
86I accept the plaintiff suffers depression, anxiety and occasional panic attacks. His memory is poor and he has difficulties concentrating. I am also satisfied that the plaintiff continues to experience nightmares, which interfere with his sleep, separate to his sleep apnoea. I am also satisfied that the plaintiff takes minimal care in his appearance, and has little interest going out.
87Taking a “whole of evidence” approach,[76] I am satisfied that the plaintiff is indefinitely incapacitated for suitable employment, and that he therefore satisfies the requisite 40 per cent loss.
[76]Davies v Nilsen & TAC [2014] VSCA 278 at [107]
88I must also be satisfied that this 40 per cent loss will be permanent. Considering the medical opinions on stability, and given it has now been over seven years since he undertook paid employment, I am satisfied that into the future, the plaintiff will continue to suffer the requisite loss of 40 per cent.
89Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[77] Given my acceptance that the plaintiff’s psychiatric injury indefinitely incapacitates him for suitable employment, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[77]s134AB(38)(c)
Conclusion
90As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity, it is not necessary for me to consider separately his pain and suffering consequences.[78]
[78]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
91I am satisfied that the plaintiff should be granted leave to commence proceedings for pain and suffering and pecuniary loss damages.
92I shall make the consequent orders.
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