Penrose v Victorian WorkCover Authority
[2023] VCC 1075
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02764
| JANETA PENROSE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 May 2023 | |
DATE OF JUDGMENT: | 30 June 2023 | |
CASE MAY BE CITED AS: | Penrose v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1075 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of earning capacity – lumbar spine – mental or behavioural disturbance or disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr C Farinaccio | Carbone Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HER HONOUR:
Introduction
1Ms Janeta Penrose, the plaintiff, is a forty-three-year-old personal care attendant.
2The plaintiff seeks the leave of the Court to bring a common law proceeding for both pain and suffering and loss of earning capacity damages. She claims that she has suffered a “serious injury” to her lumbar spine and/or a “severe” psychological injury.
3There was no issue that the plaintiff suffered a compensable injury to her lumbar spine and a psychological injury arising out of her employment with Heritage Care Service Co Pty Ltd (“the employer”). In particular, the exact work-related origin of the plaintiff’s psychological condition, and the extent to which it was a primary condition or secondary to one or more of the physical injuries the plaintiff suffered in her employment was not raised as an issue by the defendant.
4The defendant contested the application on several bases. It was submitted that the plaintiff was not a reliable witness. The defendant further said that neither the lumbar spine condition, nor the psychological condition were permanent. Alternatively, the defendant said that the plaintiff had a capacity for suitable employment and was capable of earning more than 60 per cent of her “without injury” earnings. Finally, it was said that neither the lumbar spine condition, nor the psychological condition would satisfy the relevant “serious injury” threshold.
5For the reasons that follow, the plaintiff is granted leave to seek loss of earning capacity damages. Such leave also entitles the plaintiff to claim pain and suffering damages.
Background
6The plaintiff was born and brought up in the Philippines. She migrated to Australia in 2005, and thereafter worked in various occupations including as a kitchenhand, picker/packer, and machine operator. In 2017, she completed a Certificate IV in Ageing Support.
7In 2018, the plaintiff began working full time for the employer at its Epping Gardens aged care facility (“Epping Gardens”) as a personal care attendant. The plaintiff alleges that she suffered her spinal injury because of the heavy nature of the work she was required to perform.
8In about March 2020, the plaintiff said that she began to experience symptoms of plantar fasciitis in her left foot and pain in her lower back at work. She continued working. Over the following months she said her lumbar pain increased.
9The plaintiff said that she reported her low back and left foot problems to her employer on several occasions. She said that she asked to take a few days off on sick leave but was told that because of staff shortages, she could not.
10The plaintiff said that as she had been refused sick leave, she took four weeks of annual leave in June 2020. She said she rested, and her low-back pain improved.
11In late June 2020, Epping Gardens was placed into lockdown due to the COVID‑19 pandemic.
12On 16 July 2020, there was an unauthorised gathering of staff at Epping Gardens. The plaintiff attended the gathering on one of her breaks. Subsequently, there was a widespread COVID-19 outbreak amongst residents and staff, with tragic consequences.
13On 22 July 2020, the plaintiff was notified that she had tested positive for COVID‑19. She isolated at home for two weeks.
14On 31 July 2020, the employer wrote to the plaintiff regarding her attendance at the unauthorised gathering.[1] The plaintiff was advised that when she returned to work, she would be required to participate in an investigation concerning the unauthorised gathering, which could lead to disciplinary action.
[1]Defendant’s Amended Court Book (“DCB”) 123
15The plaintiff was cleared to return to work on 5 August 2020; however, she said that she continued suffering post viral symptoms, such as difficulty breathing and fatigue. She said that her low-back pain had also increased substantially by this time.
16The plaintiff had a video conference with the employer’s human resources manager on about 11 August 2020. The plaintiff was given a written warning for attending the unauthorised gathering. She sought a further two weeks off work as she said that she was not well enough to return. This request was not granted. Later that day, the plaintiff resigned.[2]
[2]DCB 124
17The plaintiff has not worked in any capacity since July 2020.
The Plaintiff’s claimed psychological impairment consequences
18In her first affidavit, sworn on 17 February 2022, the plaintiff described her relevant impairment consequences as follows:[3]
[3] Plaintiff’s Court Book (“PCB”) 11-13
“56.I have suffered emotionally as a consequence of my work injuries. This has made my mood generally always low and I have become irritable. I have experienced suicidal thoughts of wanting to go to sleep and not wake up.
57.I constantly ruminate about my work injuries. I worry about the long term effects of contracting COVID-19. This makes me anxious most of the time. The physical ailments which affect my mobility also exacerbates (sic) my anxiety and depression. I suffer panic attacks and become tearful when I think about what my life has come to. I constantly feel hopeless and helpless.
58.Since suffering my work injuries, I suffer heightened fears about COVID-19. I struggle listening to the news about the pandemic, as I find myself recounting the trauma I have suffered to date.
…
64.Prior to suffering my work injuries, I would regularly socialise with friends. My mood and temperament has since become very low. I am tearful and upset when I think about my situation and my reduced functional capacity. I am often depressed and this is an ongoing struggle for me. Consequently, I have become socially isolated.
65. My sleep is disturbed as a result of my work injuries. I struggle to fall asleep as the chronicity of my cough and the pain in my spine and left foot keep me awake. When I do sleep, I often wake multiple times during the night from intrusive thoughts about what I went through. When I wake in the morning, I do not feel refreshed due to the poor sleep quality. This impacts my concentration and energy levels.
66. I feel resigned that my pain symptoms will not improve. I have made many attempts to improve my condition through various treatments that have had a minimal impact.
…
67.I have not been able to work since on or about 19 July 2020, due to the severity of my work injuries, both physically and psychologically.
68.I have been employed all my life and I have always been a hard worker. I feel distressed that I am unfit for work. I do not believe I am employable due to the severity of my work injuries. I am anxious and depressed when I think about what the future holds for me. I struggle to think of any work that I could now perform sustainably and reliably, given the extent and severity of my work injuries.”
19In her second affidavit, sworn on 25 January 2023, the plaintiff relevantly deposed as follows:[4]
[4] PCB 16-18
“13.I refer to paragraph 50 of the first affidavit. I commenced attending psychiatrist, Dr Yogan[an]da Ballekere on or about 27 April 2022 and have continued to remain under his care. I attend Dr Ballekere around every few months, depending on availability. He also prescribes medication and adjusts this as necessary for my depression and anxiety. Dr Ballekere trialled an increased dose of Cymbalta at 60 mg along with Endep 50 mg at night. On or about 26 May 2022, Dr Ballekere increased the dosage of Cymbalta 90 mg and then to 120 mg on or about 1 August 2022, along with Endep at 100 mg. I continued to feel teary, overwhelmed and anxious.
14.I currently take the following medication:
(a) Mobic (meloxicam) 15mg once per day;
(b) Endone 5mg around 3 tablets per day depending on my pain levels;
(c) Endep 100mg at night;
(d) Prexum once per day for blood pressure;
(e) Cymbalta 120mg per day;
(f) Panadeine Forte 2 to 3 tablets per day in between the Endone;
(g) Panadol or Panamax instead of Panadeine Forte as required; and
(h) Nexium 20mg twice per day.
15.I stopped Amitriptyline when I changed to Cymbalta and increased the dosage.
…
17.I refer to paragraph 55 of the first affidavit. I try not to spend time in bed unnecessarily now as it tends to worsen my lower back pain and also aggravates my depression and anxiety. I have been advised by my doctor to try to move about rather than rest. …
18.I refer to paragraph 56 of the first affidavit. I continue to experience irritability and depressed mood on an ongoing and daily basis. I am impatient and rude at times to other people and have continued to experience suicidal ideations, but have not wanted to act on these. I am now isolated and prefer not to be around other people because of the way I now feel. This makes me angry and upset.
19.Prior to my mental injury the subject of this claim, I was an outgoing and bubbly person who was very sociable. I used to enjoy going to parties and being around other people. I used to enjoy celebrating birthdays and special occasions, particularly with the Filipino community. We would dance, enjoy food and spend time together. Now I do not want to be around other people and avoid these types of gatherings as much as possible. This upsets me and makes me feel even more isolated, angry and upset.
20. I refer to paragraph 57 of the first affidavit. I continue to experience significant anxiety and depression, as well as panic attacks. These can occur without notice and up to around three times per month. This is debilitating, as I do not want to be out when I experience a panic attack. I have been given breathing exercises to perform to try to cope with these situations, but remain greatly affected by them and also become tearful without notice.”
20In her third affidavit, sworn on 28 February 2023, the plaintiff relevantly deposed as follows:[5]
“7.I continue to see Ms Larkins, psychologist at Sunshine Specialist and Dental Centre and continue to attend psychiatrist, Dr Yogan[an]da Ballekere every month depending on availability. I continue to feel teary, overwhelmed and anxious and the psychological injury I suffer negatively affects my daily activities and enjoyment of life in a significant way. I have now commenced on Lexapro 20mg and take this on a daily basis as well as Endep 100mg at night. Not being able to perform even basic daily tasks significantly affects my mental health and has caused me to lose self-esteem.”
[5] PCB 23
The Plaintiff as a witness
21The defendant submitted that the plaintiff was not a reliable witness. It was submitted that she was prone to exaggeration and gave inconsistent evidence. This submission was largely based upon the plaintiff’s presentation in surveillance footage obtained in April 2022 and December 2022. The defendant said that there was a marked contrast between the unrestricted movement the plaintiff displayed in the video surveillance, and the plaintiff’s “dramatic picture of disability” presented in the plaintiff’s affidavits and in Court.
Video surveillance
22The defendant tendered 27 minutes of video surveillance taken on 13 April 2022, 15 April 2022 and 15 December 2022.
23The footage depicted the following:
13 April 2022
·from around 11.35am, the plaintiff was seen at a gaming venue, playing the pokies. The plaintiff was seen standing at various gaming terminals, sometimes with one leg crossed over the other. She was also seen sitting to play the pokies;
·at 12.10pm, the plaintiff walked to her car. She sat in the driver’s seat of her car for approximately 30 minutes. At one point the plaintiff twisted and reached to put items on the back seat;
15 April 2022
·at 1.04pm, the plaintiff was seen to lift a small wooden coffee table from the back of her car, with the assistance of another person, before carrying the table together into her property;
15 December 2022
·at 9.43am, the plaintiff was seen getting into a taxi outside her home, wearing black tracksuit pants and a black hoodie;
·at 10.38am, the plaintiff was observed walking in the city, then buying a coffee and walking into 419 Collins Street. This was for a medico-legal appointment with Dr Nitin Dharwadkar, psychiatrist;
·at approximately 11.55am, the plaintiff was seen to leave 419 Collins Street and get into a taxi. She briefly held a nearby tree when stepping off the pavement into the roadway before getting into the taxi;
·at 12.33pm, the plaintiff was seen walking into her home;
·at approximately 1.00pm, the plaintiff was seen driving;
·at 1.29pm, the plaintiff parked the car in a shopping centre car park. The plaintiff had evidently changed clothes at home and was then wearing white pants and a navy-blue coat. The plaintiff walked into the shopping centre and entered the TK Maxx store. She was observed standing at a customer service counter for a few minutes, before browsing clothing items in the store for approximately 20 minutes;
·at 2.17pm, the plaintiff left the shopping centre and went back to the car;
·at 2.24pm, the plaintiff was seen leaving the car and entering a gaming venue. She was briefly observed there standing whilst playing the pokies;
·at 3.53pm, the plaintiff was seen driving in the car. She drove for about 30 minutes. She then parked the car, and walked a short distance to a residential address;
·at 6.03pm, the plaintiff was seen to get into the passenger side of the car. She then clambered over the central console into the driver’s seat, and drove away;
·at 6.14pm, the plaintiff parked the car. She returned to the car at 6.57pm.
24When questioned about the footage, the plaintiff said she thought she could be seen to limp at times but said that it was just a few minutes of footage and not how she is across a whole day.[6] She said that she touched the tree just before getting into the taxi on 15 December 2022 because she was feeling dizzy.[7]
[6]Transcript (“T”) 52
[7]T71
25The plaintiff said that she went to various places after her medico-legal examination on 15 December 2022 as she was “very, very depressed” and did not want to be at home that day, because of the way she was treated by the medico-legal examiner.[8]
[8]T53
26It was put to the plaintiff that her presentation in the surveillance footage was in considerable contrast to the way she had shuffled carefully and slowly into the witness box to give evidence during the hearing, using her umbrella for support. The plaintiff said that she uses her umbrella as a walking stick only when she really needs it and had been doing so since January 2023.
Conclusions regarding the surveillance footage and the Plaintiff’s reliability
27The surveillance footage was relatively brief. Whilst it was taken on three separate days, there were just a few moments of footage on the second day, being 15 April 2022.
28To my observation, the plaintiff walked normally in the surveillance footage in April and December 2022. There was no sign of a limp. There was no overt sign of the plaintiff suffering from any pain or restriction.
29However, the plaintiff was not seen to undertake any activity in the surveillance footage which she claimed she cannot do. Even before the footage was shown to the plaintiff, she had said that she continued to do whatever she could, that she tried to walk without a limp and walk as much as she could.[9] Further, she said that her doctor had told her she needed to go out, as staying home was not helping her.[10]
[9]T44
[10]T45
30For the reasons articulated, the surveillance footage does not cause me to significantly doubt the plaintiff’s reliability.
31I further note that the plaintiff takes significant medication, both for pain and her psychological condition. Her evidence was that the medication assisted to an extent.
32The plaintiff struck me as a straightforward witness who endeavoured to answer the questions asked of her. She made appropriate concessions.
33This is not a case where credit is a significant issue. I find that I am broadly able to accept the plaintiff’s account of her psychological symptoms from time to time.
The medical evidence as to the psychological injury
Treaters
Ms Suzy Larkins, psychologist
34The plaintiff tendered five reports from her treating psychologist, Suzy Larkins. Ms Larkins first saw the plaintiff in September 2020 and has continued to see her weekly or fortnightly over the ensuing two-and-a-half years.
35In her first report dated 21 June 2021, Ms Larkins opined that the plaintiff’s initial presentation was congruent with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. By the time of writing her report, Ms Larkins was of the view that a different diagnosis be considered:
“Given the observed stable nature in presentation of symptom[ato]logy in my opinion the most appropriate diagnosis for Janeta is, Severe Major Depressive Disorder, with Anxious Distress (296.23 – F32.2), this is due to both the persistence of her physiological symptoms and the excessive psychological distress this causes her. Her depressive disorder can be somewhat attributed to this, as well as her reduced capability to perform daily tasks causing low self-esteem, feelings of hopelessness and a lack of self-worth.”[11]
[11]PCB 38
36Ms Larkins opined that the plaintiff also presented with symptomatology consistent with Post-Traumatic Stress Disorder.
37In her second report, dated 27 February 2022, Ms Larkins’ diagnoses remained the same. She opined that the plaintiff had no work capacity for the foreseeable future due to her physiological and psychological conditions, together with the effects of her prescribed medications.
38In her third report, dated 20 October 2022, Ms Larkins noted that she had treated the plaintiff on 67 occasions. She opined that her diagnoses were unchanged. She remained of the view that the plaintiff had no work capacity for the foreseeable future on an holistic basis.
39In her fourth report, dated 27 February 2023, Ms Larkins said that she had then treated the plaintiff on 78 occasions. She was continuing to see the plaintiff “weekly and ongoing”. She remained of the view that the plaintiff suffered from a “Severe Major Depressive Disorder with Anxious Distress”. Her differential diagnosis was Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Ms Larkins also opined that the plaintiff presented “with a stable post-traumatic stress disorder (PTSD) comorbid profile”. She highlighted some aspects of the plaintiff’s continuing presentation as follows:
“Symptoms of agoraphobia and anhedonia are evident. … Other symptoms as experienced by Janeta include compromised concentration and memory, avoidant behaviour and withdrawal from social situations and activities. Insomnia is commonly experienced by Janeta and over sleeping also occurs. Janeta also reports multiple physical symptoms such as fatigue, headaches, digestive problems and significant weight gain. Family and friends, or self-report provide the patient’s behaviour as either agitated or lethargic. Symptom[at]ology has significantly affected Janeta’s family and personal relationships, employability, sleep, eating habits and general health. Further, some overlap examples of stress and anxiety symptom[ato]logy as experienced by Janeta include:
·Feeling sad, hopeless or not enjoying things she used to enjoy
·Frequent crying
·Worrying or feeling anxious, nervous, jittery or stressed out
·Sleep disruption and night terrors (constant)
·Lack of appetite and bouts of emotionally driven over eating
·Difficulty in memory, concentration and planning tasks
·Feeling overwhelmed – magnified reactivity
·Difficulty functioning in daily activities
·Withdrawing from social supports
·Avoidant behaviour and amotivation
·Suicidal ideation/thoughts or behaviour.”[12]
[12]PCB 37-38
40Ms Larkins opined that due to the plaintiff’s psychological condition, she was unfit for any employment for the foreseeable future.
41In her final report dated 19 April 2023, Ms Larkins said that she had treated the plaintiff on 84 occasions. She was continuing to see the plaintiff weekly. She remained of the view that the plaintiff had no work capacity for the foreseeable future. Her diagnosis remained fundamentally unchanged.
Dr Cesar Tan, general practitioner
42The plaintiff tendered four reports from her general practitioner, Dr Tan, dated 20 July 2021, 12 November 2021, 11 January 2023 and 3 February 2023.
43The plaintiff saw Dr Tan for the first time on 4 September 2020 (a few weeks after her resignation).
44His reports outlined the plaintiff’s physical and psychological conditions in short form and summarised the plaintiff’s treatment. He opined that she is permanently unfit to work due to her injuries. These reports are of limited assistance on that issue since the opinion as to work capacity is clearly based on the impairment consequences of both the physical and psychological injuries combined.
Dr Yogananda Ballekere, psychiatrist
45The plaintiff tendered three reports from her treating psychiatrist, Dr Ballekere.
46The plaintiff first attended Dr Ballekere on 27 April 2022. She has seen him approximately monthly since then.
47In his first report dated 7 February 2023, Dr Ballekere diagnosed the plaintiff with an Adjustment Disorder. She was prescribed two antidepressants, Cymbalta and Endep. Dr Ballekere opined that the plaintiff was unfit for her pre-injury duties because of her psychological condition. However, he said:
“… I do not consider this incapacity to be permanent.
…
… this is likely to change once her mental health improves satisfactorily. A review in 6-12 months is recommended.”[13]
[13]PCB 97
48In a supplementary report dated 20 February 2023, Dr Ballekere clarified his opinion regarding the plaintiff’s future capacity to work as follows:
“Ms Penrose is not fit to do any work for some time. It is hard to predict the time duration of this incapacity because it is not just her mental ill-health that is a problem but also her pain condition. Based on her current presentation it is likely that Ms Penrose will be unfit for work for few years.”[14]
[14]PCB 99
49In a further supplementary report dated 23 February 2023, Dr Ballekere opined:
“I would like to add that Ms Penrose suffers from severe anxiety and depression as a part of her adjustment disorder. This has significantly and adversely affected her social, personal and occupational areas of functionality.
She is unable to do any work in the next few years due to this Psychiatric injury. She needs assertive psychiatric treatment until she recovers completely. … .”[15]
[15]PCB 100
Medico-legal examiners
Dr Albert Kaplan, psychiatrist
50The plaintiff tendered three reports from Dr Kaplan.
51In his first report dated 22 March 2022, Dr Kaplan outlined his findings on mental state examination of the plaintiff. The plaintiff spoke freely and with some urgency. There was no difficulty establishing rapport. Her thinking was characterised by pre-occupation with her condition and her current circumstances. She otherwise displayed no abnormalities of speech, thinking or perception. Dr Kaplan opined that the plaintiff appeared anxious, agitated and despondent. Her insight appeared unimpaired.
52Dr Kaplan diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood associated with panic attacks, and some traumatisation features. He was of the view that the prognosis for that condition would in large part be determined by the course of her physical injury.
53Dr Kaplan said that the plaintiff would likely require her current psychiatric treatment to continue for a further twelve months. He opined that she had no capacity to work because of her psychiatric condition. This was due to her low frustration tolerance, difficulties with memory and concentration, diminished capacity to cope with stress and loss of self-esteem.[16]
[16]PCB 132
54In his second report dated 9 December 2022, Dr Kaplan opined that the plaintiff’s psychiatric condition had not improved since his last examination. His opinion as to prognosis and work capacity remained unchanged.
55Finally, Dr Kaplan was provided with the two medico-legal reports which had been obtained by the defendant, from Dr Leon Le Leu, occupational physician, dated 5 January 2023, and Dr Nitin Dharwadkar, psychiatrist, dated 14 December 2022. Dr Kaplan was asked whether the content of those reports caused him to change his opinion in any way. Dr Kaplan noted that Dr Dharwadkar’s diagnosis was largely consistent with his own, save that Dr Kaplan noted that the plaintiff had also described experiencing panic attacks. Dr Kaplan noted that if Dr Le Leu was indicating that the plaintiff’s physical symptoms were partially non-organic, then an additional psychiatric diagnosis of a pain disorder associated with both psychological factors and her general medical condition would be appropriate.
Dr Nitin Dharwadkar, psychiatrist
56The defendant tendered two reports from Dr Dharwadkar.
57In his first report dated 14 December 2022, Dr Dharwadkar outlined his findings on mental state examination. The plaintiff appeared irritable, alert and cooperative. Her affect was irritable and mildly anxious, with a major reactive component. She was pre-occupied with future uncertainties regarding her work capacity and conditions. There were no disorders of perception apparent, and cognition and insight appeared to be reasonable.
58Dr Dharwadkar diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood with some traumatisation features (anxiety provoking dreams). He opined that the plaintiff was unfit for her pre-injury duties but fit for suitable employment.
59In a supplementary report dated 27 February 2023, Dr Dharwadkar was asked to comment on the suitable employment options identified in a Recovre report dated 6 June 2022. Dr Dharwadkar opined that from a purely psychiatric perspective, all the identified roles were suitable. A difficulty with this very brief supplementary report is that Dr Dharwadkar does not explain why the jobs are suitable for the plaintiff, bearing in mind her psychological condition, and the medication prescribed to her for that condition.
Conclusions regarding the medical evidence
60I accept the diagnosis of Dr Ballekere that the plaintiff suffers from an Adjustment Disorder. That diagnosis is also confirmed by Dr Kaplan and Dr Dharwadkar.
61The plaintiff has received significant treatment for her psychological condition from a psychiatrist and a psychologist, as well as daily medication in the form of Lexapro and Endep.
62I prefer the opinion of the plaintiff’s treating psychiatrist, Dr Ballekere, as to her work capacity. I do so because the plaintiff has been examined approximately monthly by Dr Ballekere over the past year, whereas Dr Dharwadkar has only seen the plaintiff on one occasion, and Dr Kaplan has only examined the plaintiff twice.
63Whilst I do not accept Ms Larkin’s alternate diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder, I accept her opinion regarding the plaintiff’s presentation over the more than 84 occasions she has seen her since September 2020. That is, that there has been little change in the plaintiff’s symptomatology over time despite treatment. Furthermore, Ms Larkins was also of the view that the plaintiff had no current work capacity due to her psychological condition and that such incapacity would continue for the foreseeable future.
Permanence
64A condition is permanent in the requisite sense if it will probably persist through the foreseeable future and there will be no significant improvement over time.[17]
[17]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, paragraphs [19] and [111]
65The defendant submitted that the Court ought to find that Dr Ballekere’s prognosis was that the plaintiff is not going to be impacted socially, recreationally, domestically or occupationally in the long term. Mr Storey, who appeared for the defendant, submitted that the opinion Dr Ballekere expressed in his report dated 7 February 2023 (that he did not consider the plaintiff’s psychological work incapacity to be “permanent”), “is clear, unequivocal and should stand”.[18] Whereas, it was submitted, the supplementary reports sought by the plaintiff’s solicitors “are quite unsatisfactory”.
[18]Transcript 99
66The two letters from the plaintiff’s solicitors which sought the supplementary reports from Dr Ballekere were tendered by the plaintiff. The defendant did not highlight any aspect of either letter which was open to criticism so as to support its contention that the opinions given thereafter might be said to be “unsatisfactory”.
67Dr Ballekere clarified his opinion as to the plaintiff’s prognosis in his subsequent reports. I accept his opinion that the plaintiff is unfit for any suitable employment for the next “few years”. I also accept Ms Larkin’s opinion that the plaintiff’s psychological condition has not changed significantly since September 2020.
68The plaintiff has had a significant degree of intervention over an extended period, by way of psychological and psychiatric treatment, as well as antidepressant medication, with little change in her symptomatology. On the whole of the evidence, I therefore find that the plaintiff’s psychological condition is permanent in the requisite sense.
Work capacity
69The plaintiff contended that she has no realistic “after injury” earning capacity by reason of her psychological condition.
70The defendant submitted that the plaintiff’s psychological condition did not incapacitate her for suitable employment, and the plaintiff had not satisfied her onus of establishing that she is permanently incapable of earning at least 60 per cent of her “without injury” earnings.
71For the plaintiff to succeed in her claim for the loss of earning capacity consequence, she must establish:
(a) her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe (the narrative test);
(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”); and
(c) after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
Recovre report dated 6 June 2022
72The defendant tendered a report from Janette Ash, occupational therapist, dated 6 June 2022.[19] The report was commissioned ‘on the papers’. The plaintiff was not interviewed.
[19]DCB 165
73The information provided to Ms Ash upon which she formed her opinion comprised a referral letter (which was not tendered), a report of Dr David Fitzgerald, occupational physician, dated 15 March 2021, and a transferable skills assessment dated 29 January 2021 (which was not tendered). I note that Dr Fitzgerald’s report assessed only the physical injuries claimed by the plaintiff.
74Ms Ash outlined worksite assessments for three jobs which conformed with Dr Fitzgerald’s opinion regarding suitable employment for the plaintiff accounting for her physical incapacity. Those roles were product examiner, production clerk and rosters administrator.
75The defendant contended that the relevant 60 per cent figure was $40,200 per annum; that the plaintiff had prior experience in the roles of process worker, product assembler and pathology courier; that the roles suggested by Recovre are available in her area; and, if the plaintiff were capable of working in any of the roles identified by Recovre on a full-time basis, she would not satisfy the statutory formula.[20]
[20]T85-86
76The plaintiff submitted that there was a “fatal omission” in the defendant’s Recovre report, in that no material was provided to Ms Ash in respect of the plaintiff’s claimed psychological condition.[21]
[21]T115
77The observation that Ms Ash was not provided with material in relation to the plaintiff’s psychological condition is correct. However, the Recovre report was provided to Dr Dharwadkar to opine as to the suitability of the roles identified from a psychiatric perspective. Whilst Ms Ash did not have medical material which enabled her to consider suitable employment for the plaintiff from a psychological perspective, Dr Dharwadkar did so by his consideration of her report. There is no “fatal omission” as submitted.
78More fundamentally however, for the reasons already outlined, I prefer the evidence of the plaintiff’s treating psychiatrist and psychologist as to her work capacity and do not accept Dr Dharwadkar’s opinion in that regard.
79For the reasons given above, on the whole of the evidence, I find that the plaintiff has no capacity for suitable employment for the foreseeable future by reason of her psychological condition. On that basis, I find that she has satisfied her onus of establishing that she is unable to earn at least 60 per cent of her “without injury” earnings now and into the foreseeable future.
80I also find that the plaintiff’s inability to return to employment for the foreseeable future is a “severe” loss of earning capacity consequence for the purpose of s325(2)(d)(ii) of the Act. The plaintiff therefore satisfies the narrative test.
Conclusion
81Having determined that the plaintiff is entitled to leave to commence proceedings for loss of earning capacity damages, she is also entitled to seek pain and suffering damages.[22]
[22]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, paragraph [63]
82In the circumstances, it is unnecessary to consider the plaintiff’s claim in respect of her lumbar spine.
83I will hear the parties as to the question of costs.
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