Piercey v VWA
[2020] VCC 429
•17 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03268
| ANDREW PIERCEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 & 18 February 2020 | |
DATE OF JUDGMENT: | 17 April 2020 | |
CASE MAY BE CITED AS: | Piercey v VWA | |
MEDIUM NEUTRAL CITATION: | [2020 VCC 429 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; non-organic injuries; disentanglement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
ss.325(1) & 335
Cases Cited: Shock Records Pty Ltd v Jones [2006] VSCA 180;
Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67;
Zlateska v Consolidated Cleaning Services Pty Ltd & Anor
[2008] VSC 85; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram QC with Ms M. Fudim | Carbone Lawyers |
| For the Defendant | Mr R. Middleton QC with Mr S. Scully | Russell Kennedy |
HIS HONOUR:
Introduction
1 Andrew Piercey seeks leave pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to commence common law proceedings in relation to injuries received during the course of his employment with Plumbers Supplies Co-operative Limited (“the employer”) in 2016. Mr Piercey relies upon psychological injuries which he claims arose as a consequence of bullying and harassment, specifically in the early months of 2016, leading up until the time he ceased employment in early May of that year.
2 The defendant opposes the grant of leave, although there was no significant challenge to the events Mr Piercey describes as constituting the bullying and harassment. Mr Middleton QC, who appeared with Mr Scully on behalf of the defendant, identified physical injuries occurring in 2013 and 2016 as being the principal causes of any psychological injury suffered by the plaintiff. Mr Middleton QC also challenged the severity and permanency of Mr Piercey’s psychological injuries.
3 Mr Ingram QC, who appeared with Ms Fudim on behalf of the plaintiff, accepted that there had been some minor emotional issues surrounding Mr Piercey’s physical injuries, but submitted that the bullying and harassment to which Mr Piercey had been subjected in the early months of 2016 was by far the most significant cause of his ongoing psychological injury.
4 The medical evidence was not substantially in dispute and only Mr Piercey was required for cross-examination. The parties otherwise relied upon material from their respective court books or medical records as evidence in the application.
5 Whilst some argument was advanced concerning the evidentiary onuses to be borne by each party, there was an acceptance of the broad proposition that leave could only be granted if the plaintiff established that he was suffering a serious injury which, in the present case, relied upon the definition in paragraph (c) of the statutory definition in section 325(1) of the Act. On such a basis the onus falling to Mr Piercey was to establish, as a matter of probability, that the consequences of injury suffered by him constituted a “permanent severe mental or permanent severe behavioural disturbance or disorder.”[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 s325(1)
The lay evidence
6 Mr Piercey swore two affidavits in support of his application, the first on 19 December 2017[2] and 28 January 2020.[3] During cross-examination he identified an earlier affidavit sworn 15 February 2016 which was also tendered in evidence.[4]
[2]Exhibit F, pp 5-14
[3]Exhibit F, pp 15-19
[4]Exhibit 1 (PCB pp 19A-19H)
7 Mr Piercey’s December 2017 affidavit sets out in some detail his background up to commencing employment with the employer in March 2013. His background in broad terms shows that he attended school until Year 11, and then proceeded to obtain a number of different types of employment initially with his family’s company, and most recently, before commencing with the employer, as a casual scooter rider displaying advertising material whilst also working as a freelance photographer and video maker. There was no history of any similar employment to that performed by the employer which involved work as a driver and store person on a full-time basis.
8 Mr Piercey’s affidavit refers to a number of prior injuries, most significantly the injury to his right hand suffered in the course of his employment in July 2013. The affidavit also made reference to his emotional state noting:
“… in my early 20s I was prescribed and took anti-depressants for a number of years following a relationship breakdown. When I was about 30 years old, I ceased anti-depressants.”[5]
[5]Exhibit F, p 7 [16]
9 Mr Piercey was aged 34 at the time he commenced employment with the employer and his affidavit describing his right hand injury suffered some four months into that employment also makes reference to developing consequential psychological injuries following the right hand injury. Ultimately this became a significant issue in this application.
10 Mr Piercey’s first affidavit describes in some detail bullying and harassment at the hands of representatives of his employer occurring between January and May 2016.[6] He had ceased work in early May 2016 and has not returned to any employment either with the employer or otherwise.
[6]Exhibit F, pp 8-11 [20] to [25]
11 Mr Piercey described attending a general practitioner in May 2016 and made further reference to ongoing psychological treatment and attendances on another general practitioner up to the date of that first affidavit.
12 Mr Piercey’s first affidavit also described the symptoms, both physical and emotional, that he was continuing to suffer and also made reference to his prior earnings and referral to a rehabilitation provider.
13 The second affidavit sworn 28 January 2020 set out Mr Piercey’s ongoing treatment, referring to a number of clinical psychologists and a general practitioner. At the time of swearing that affidavit Mr Piercey was taking a number of prescription medications, although clearly less than had previously been prescribed.[7]
[7]Exhibit F, pp16-17 [90 to [10]
14 He made reference to ongoing difficulties with emotional issues involving what he described as anxiety, paranoia, nauseousness and frequent panic attacks. He stated that he had experienced social withdrawal and described a number of clearly unpleasant symptoms. He succinctly described the changes he had experienced consequent to his experiences with the employer during 2016:
“My life has changed dramatically since being subjected to the workplace bullying. I had to move in with my parents. I feel that I am living in a constant state of fear, anxiety and depression.
Prior to sustaining my work-related injuries, I performed well under pressure. I thrived in a high-pressure environment and constantly emitted confidence. I miss being the independent, outspoken fun person I once was.
My stress, anxiety and depression continue to cause me anguish on a daily basis. I at times experience suicidal thoughts and have previously made attempts to take my own life. I feel hopeless regarding my future.”[8]
[8]Exhibit F, p 18 [20] to [22]
15 Mr Piercey’s earlier affidavit, sworn 15 February 2016, was directed to the consequences flowing from a right hand injury suffered by him in late July 2013. The injury was described as follows in that affidavit:
“In the course of my employment with the employer, and on or about 30 July 2013, I sustained the following injuries;
·Injury to my right upper limb, including but not limited to my arm and wrist;
·Psychiatric/psychological injuries, including but not limited to stress, anxiety and depression.”[9]
[9]Exhibit F, p 19C [15]
16 In that affidavit Mr Piercey described in some detail the physical consequences of injury. He also described emotional consequences as follows:
“As a consequence of my work place injuries, I experience constant emotional strain. I am stressed, anxious, and I constantly fear that my condition will worsen. I struggle to clear my mind of my worries about my injuries and how they will interfere with my life into the future. I become stressed when I think about supporting my family financially. I find it difficult to remember details and concentrate on completing general tasks. I am not confident in my ability to perform ordinary, everyday tasks and as a result I feel bored, unproductive and burdensome.
I feel that my work injuries have robbed me of my identify. Prior to sustaining my work injuries, I was a happy, cheerful and friendly partner, friend, worker and individual. I would constantly laugh and joke and felt as though I was a person who people wanted to know. Since the injury I have become moody, short-tempered, depressed, isolated and frustrated due to the abrupt change in lifestyle. I feel disheartened that I am no longer able to participate in my familial and recreational activities like I used to or physically work in the same capacity as I have done so throughout my career.”[10]
[10]Exhibit F, p 19G [37] to [38]
17 When cross-examined much of the focus was directed towards Mr Piercey’s pre-existing emotional condition and especially the emotional consequences set out in the 2016 affidavit as consequential to his right arm injury. In particular the following matters were of relevance:
· Mr Piercey was suffering very minor mental or psychological injury from his wrist condition from 2015 onwards. He was still having pain and discomfort from his wrist.[11]
[11]Transcript (“T”) 11, Line (“L”) 19-30
· He had a knee injury when playing football as a youngster. He had minor continuing problems and arthroscopic surgery on the knee in 2011.[12]
[12]T 12, L 13-21
· He agreed he was given a warning concerning failure to comply with a set protocol in respect of medical appointments on 18 March 2016.[13]
[13]T 13, L 10-25
· Mr Piercey agreed on the same day he had suffered a knee injury while delivering PVC pipe at Mt Martha. He denied there was any coincidence between this occurrence and the warning.[14]
[14]T 13, L 31
· Mr Piercey agreed he had submitted a claim form describing his injuries as “a right knee injury, anxiety and depression.”[15]
[15]T 14, L 8-22
· He did not disclose any earlier knee injury in that claim form because:
“I had a fully functioning knee when I started the job and I had quite a rigorous physical before starting the job.”[16]
[16]T 15, L 1-23
· He agreed that following the knee injury his mental health also deteriorated.[17]
[17]T 16, L 16-30
· Mr Piercey agreed that his wrist injury also mildly affected his mental health.[18]
[18]T 17, L 4-7
· When pressed on the emotional consequences of the hand injury Mr Piercey stated:
“Looking back it was mild. It was disappointing, obviously, to do my hand and it was a very major inconvenience but compared to what I’ve been through since, I probably would call it mild.”[19]
[19]T 19, L 8-20
· Mr Piercey was taken to his February 2016 affidavit and agreed with the description of his injuries, including psychiatric/psychological injuries. He agreed there had been a resolution of that claim for $40,000 in 2016.[20]
[20]T 20, L 11-23
· Mr Piercey agreed that he had some trouble sleeping following his hand injury:
“I would wake because of numbness in my hand and things like that. My major sleeping issues have been later.”[21]
[21]T 21, L 26 to T 22, L 5
· He agreed that following the injury to his hand he lost his ability to play drums and ride a motor cycle, which he had enjoyed.[22]
[22]T 24, L 1-12 & T 25, L 16-30
· Mr Piercey also agreed that his hand injury impacted other recreational activities such as golf, go-karting, basketball and caused difficulty when driving.[23]
[23]T 26, L 12-29
· Mr Piercey agreed with a statement in his 2016 affidavit:
“I am stressed, anxious and constantly fear my condition will worsen.”
· He agreed this occurred before any of the bullying episodes had occurred at work.[24]
[24]T 27, L 10-24
· He went on to describe that looking back in retrospect the impact of the hand injury on his general happiness was mild compared to what he currently felt.[25]
[25]T 28, L 3-21
· Mr Piercey agreed that he had become bitter of his employer following his hand injury:
“… yes, I was bitter because there were fit and able-bodied persons sitting around the office whilst I was driving a truck one-handed.”[26]
[26]T 30, L 1-10
· Mr Piercey stated that following surgery on his right wrist in 2018 there had been a slight reduction in the numbness of the hand, but no improvement in the pain.[27]
[27]T 31, L 4-30
· He agreed that he had not seen a psychiatrist, but received funding to see a psychologist in 2018. He believed that was related to the knee and harassment claim. He did not dispute that there had been no claim form relating to harassment or bullying.[28]
[28]T 32, L 8 to T 33, L 9
· Mr Piercey had had roughly 13 consultations with a psychologist, Dr Petrass, and around 30 with Ms Kiesekoms. He had recently seen another psychologist in Mornington twice.[29]
[29]T 33, L 19-26
· Mr Piercey agreed he became depressed following a relationship breakdown when he was 22 and saw a psychologist. He was prescribed antidepressants which he took until he was about 30 years of age.[30]
· He agreed he had told a psychiatrist in 2018 that he was still depressed and was suicidal. He agreed that represented the current situation.[31]
· Mr Piercey stated he was suffering from panic attacks which involved shakes, perspiration, dry retching, sometimes vomiting and his heart racing. There were a number of triggers for these conditions, including his dealings with WorkCover.[32]
[30]T 36, L 29 to T 37, L 3
[31]T 37, L 15-27
[32]T 38, L 8-26
18 Mr Piercey was taken through a number of medical histories and generally agreed they were accurate in recording both physical and emotional complaints. He accepted that he was still hampered by pain in his every day life. He maintained that he was disabled by pain and his mental condition, but conceded the proposition put to him that he was disabled by pain.[33]
[33]T 42, L 5-17
19 Mr Middleton QC cross-examined as to the reason why Mr Piercey had ceased work in early May of 2016:
“What was the reason for you ceasing work?---My mental state. I have been attacked over months and months and months and I had just received my third warning which I did not believe was necessary or warranted and in those days, since I got the warning 30 minutes after arriving to work on a Monday morning and I was destroyed, mentally destroyed, because it was one more warning that was unjustified.
You thought all of your treatment was unjustified, did you not?---I felt that, yeah, the bullying and harassment was totally unjustified.”[34]
[34]T 42, L 25 to T 43, L 4
20 Mr Piercey disagreed with the proposition that the worsening of his right knee pain caused him to cease work:
“It was not because of my knee injury at all, it was because the harassment got to such a point where I broke down.”[35]
[35]T 44, L 11-22
21 Mr Piercey denied the proposition put to him that his psychiatric condition related first to his wrist injury and then to his knee injury.
“I’m not sure what to say here. I have mild depression from the hand and when I went to commit suicide I was not thinking of my knee or my wrist. I was thinking about the harassment that had been done to me.”[36]
[36]T 47, L 26-31
22 Mr Piercey agreed with a clinical note taken by Dr Pokharel on 4 May 2016:
“Also appears to be going through significant stress every since right hand injury says he is not the same.”[37]
[37]T 48, L 15-30
23 When asked about clinical notes from Dr Petrass relating to his personality making him vulnerable to perceived criticism he stated:
“My reason for seeking psychiatric help is because of the bullying.”[38]
[38]T 49, L 7-21
24 Mr Piercey agreed that ridicule and abuse had commenced in relation to his wrist and knee injuries, but stated:
“The things that were said to me by Nick Embry and that had nothing to do with my hand and knee.”[39]
[39]T 51, L 5-17
25 When cross-examined about his current activities Mr Piercey agreed that he had a current casual partner and had travelled to Bali over the Christmas period for about 10 days:
“Tried to relax. I was at the point leading up to it where I was suicidal again so graciously, the person who took me away saw that I was at that point and tried to help.”[40]
[40]T 53, L 1-16
26 He was presently receiving a sickness benefit from the Commonwealth:
“I have a buggered knee and a hand and a mental state that is killing me.”[41]
[41]T 53, L 31 to T 54, L 3
27 He agreed that he had previously gone on a holiday to Bali in December 2016.[42]
[42]T 54, L 19-24
28 Mr Piercey agreed that he had used cannabis recreationally over the years and he had used it particularly after his last suicide attempt in February 2018.[43]
[43]T 55, L 10-26
29 Mr Piercey was cross-examined about the initial medical certificate provided to him by Dr Pokharel which made reference only to his knee injury:
“I would say physical injuries would form a very small part of my total problem that I have now.”[44]
[44]T 57, L 3 to T 58, L 11
30 Mr Piercey did not deny that he had anxiety and depression as a result of his physical injuries but stated:
“I thought I was anxious and depressed and these sorts of things until I found out how anxious and depressed I could really get when bullied in 2016.”[45]
[45]T 60, L 1-6
31 Finally, in cross-examination he did not agree with the proposition that he would be placing more emphasis on his knee injury if that were the subject of this application.[46]
[46]T 60, L 25 to T 61, L 30
32 When re-examined Mr Piercey went into considerable detail to describe the episodes of bullying he had received leading up to the time of his attendance on Dr Pokharel in May 2016.[47] There was also some re-examination concerning the acceptance of liability for statutory compensation.[48]
[47]T 64, L 8 to T 67, L 7
[48]Exhibits A & B and T 68, L 3 to T 70, L 22
33 Mr Piercey agreed in re-examination that there was some restrictions with his performance at work due to both his wrist injury and his knee injury:
“… I continued to work all the way through my injuries, the whole way through, so it didn’t prevent me. It made it very hard but I continued to work through.”[49]
[49]T 72, L 14-20
34 In relation to his work up until May 2016 he stated:
“I had a great deal of difficulty with work. I had assistance from co‑workers with loading trucks and things like that but I continued working.”[50]
[50]T 72, L 21-26
35 When asked by Mr Ingram QC the reason he had ceased work he stated:
“… that week after getting my third – after returning from holiday and getting my third warning which I believe was – (un)just, once again, totally unjust, I just had a mental breakdown. I was broken. Bullying had gone on for months and months by this point and then it was just one more warning, it was one more occasion and it just broke me.”[51]
[51]T 73, L 2-9
36 In further evidence given during re-examination Mr Piercey emphasised the extent of his psychological reaction to the bullying noting that he had attempted suicide on two occasions. He also emphasised the extent to which he attributed the bullying and harassment to his present situation.[52]
[52]T 76, L 15 to T 77, L 11
The plaintiff’s medical evidence
37 The plaintiff relied on three medical reports from his principal treating general practitioner, Dr Ching Ling Huang, whose reports were dated 27 November 2017, 12 December 2018 and 4 February 2020.[53] In his most recent report Dr Huang referred to both the wrist and knee injuries, and expressed the following opinion:
“Due to his injuries, Mr Andrew Piercey has not been able to return to work and have been suffering from pain in the injured wrist and knee. Mr Andrew Piercey has not felt that he has been supported through the process and as a consequence he has developed anxiety and depression. As stated in his affidavit, he feels that he has been harassed and bullied.”[54]
[53]Exhibit F, pp 20-27
[54]Exhibit F, p 25
38 Dr Huang went on to comment that Mr Piercey was not capable of maintaining any suitable employment due to his psychological injury and impairment. He did not believe he would have the capacity to return to his pre-injury duties for the foreseeable future.[55]
[55]Exhibit F, ,p 26
39 Notwithstanding those comments Dr Huang was optimistic as to Mr Piercey’s prognosis stating:
“As Mr Piercey’s GP, I would like to help Mr Piercey recover to a health state that:-
- he can self-manage his conditions with minimal external interventions
including medical including pharmacological and psychological assistance
- he can return to fulfilling employment
- he can return to enjoying non-employment related activities including
recreational activities
- he can become independent.”[56]
[56]Exhibit F, p 27
40 Mr Piercey had also received treatment from a number of psychologists. He initially saw Janine Petrass over some 13 sessions, commencing in October 2017. He then attended Astrid Kiesekoms for 31 sessions between February 2018 and October 2019. Two reports from each of these practitioners was tendered in evidence.[57]
[57]Exhibit F, pp 28-34 (Ms Petras) pp 35-45 (Ms Kiesekoms)
41 Ms Petrass regarded Mr Piercey’s emotional difficulties as extending “from his underlying personality structure including prominent schemas.” She went on to comment as follows:
“Treatment of personality structure and maladaptive schemas typically requires longer term therapy. Without treatment, Andrew will most likely continue to be susceptible to mood instability, anxiety, and other symptoms in response to situational stressors.”[58]
[58]Exhibit F, p 32
42 Ms Petrass believed that Mr Piercey would be unable to engage in work at the time of his last few psychology sessions due to his mental state. She referred to the self-reporting measures she had used to assess his condition:
“… while not diagnostic give an indication that his distress has been in the ‘Severe’ and ‘Extremely Severe’ ranges (compared to the general population) at times.”[59]
[59]Exhibit F, p 33
43 Mr Piercey was referred by Dr Huang to another psychologist, Ms Astrid Kiesekoms, who he first saw on 23 February 2018. Ms Kiesekoms saw Mr Piercey on 31 occasions between February 2018 and October 2019.[60]
[60]Exhibit F, pp 35-45
44 She diagnosed Mr Piercey as suffering from an adjustment disorder with mixed anxiety and depressed mood. His psychiatric symptoms were described as ranging from the moderate to severe range.[61] She also set out in some detail her most recent opinion in December 2019 as to why Mr Piercey was not currently capable of commencing a gradual return to work in suitable employment.[62]
[61]Exhibit F, p 34F and p 43
[62]Exhibit F, p 44
45 In mid-December 2019 Dr Richard Shanasy, a general practitioner in the Mt Martha area, prepared a mental health care plan for Mr Piercey.[63] There was also a short report from another psychologist, Mirella Tinney, dated 5 February 2020, noting the referral and confirming that Mr Piercey had attended only one session in late 2019. He had also completed a self-reporting psychological distress scale which was also tendered in evidence.[64] Ms Tinney noted the self-assessment document as placing Mr Piercey in the very high category for stress.[65]
[63]Exhibit F, pp 46-50
[64]Exhibit F, pp 51-52
[65]Exhibit F, p 52
46 The final report concerning Mr Piercey’s treatment was from Dr Nuha Khan, a psychiatric registrar at the Frankston Hospital. This was dated 6 February 2020 and was addressed to the insurer seeking funding for ongoing psychology sessions. Dr Khan’s letter noted that Mr Piercey was assessed “as having a moderate to high chronic risk of suicidality in the setting of protracted WorkCover issues.”[66]
[66]Exhibit F, p 53A
47 Mr Ingram QC tendered into evidence two medico-legal reports from Dr Nathan Serry dated 16 October 2017 and 14 January 2020.[67] There were also three medical reports from Dr Albert Kaplan dated 12 February 2018, 18 December 2018 and 21 November 2019.[68]
[67]Exhibit F, pp 54-74
[68]Exhibit F, pp 75-100
48 Dr Serry noted a diagnosis of a moderately severe chronic adjustment disorder with anxious and depressed mood and features of traumatisation and panic.[69] He had also noted issues with secondary use of cannabis which had commenced approximately two years prior to his second report after an attempted suicide. Dr Serry believed that Mr Piercey did not have a capacity for suitable employment and this was likely to last for the foreseeable future.[70]
[69]Exhibit F, p 71
[70]Exhibit F, p 72
49 Dr Kaplan initially expressed an opinion in February 2018 that Mr Piercey suffered from an adjustment disorder with mixed anxiety, depressed mood associated with panic attacks. At that time he also stated:
“His condition is related to his injuries, his chronic pain, his inability to work and other physical limitations imposed upon him by his pain. The alleged bullying at his workplace is probably also contributing to his psychiatric condition. …
The prognosis of Mr Piercey’s psychiatric condition will in a large part be determined by the outcome of his physical condition and he is likely to remain prone to anxiety and depression and experience panic attacks as long his pain persists and as long as he remains disabled by his pain.”[71]
[71]Exhibit F, p 83
50 In December 2018, following a second examination, Dr Kaplan varied his diagnosis to some extent noting:
“Agoraphobic symptoms …”
and
“… these symptoms have restricted his movements and he is largely housebound.”[72]
[72]Exhibit F, p 90
51 Dr Kaplan regarded Mr Piercey’s psychiatric condition as having a major impact on his social life, recreational activities and general quality of life and did not believe him suitable of undertaking any employment “until there is significant improvement in his psychiatric condition.”[73]
[73]Exhibit F, p 91
52 In Dr Kaplan’s final report dated 21 November 2019 he noted that Mr Piercey’s psychiatric condition had not improved since the previous examination. As to prognosis he stated:
“It is difficult to predict whether this incapacity is likely to continue for the foreseeable future however it is likely to persist for a prolonged period of time and will also be determined by the outcome of his physical injury.”[74]
[74]Exhibit F, p 98
53 Dr Kaplan again described Mr Piercey’s psychiatric condition as having had a major impact on his general quality of life.
The defendant’s medical reports
54 The defendant tendered into evidence a number of medical reports from practitioners who had examined Mr Piercey in 2016, soon after he ceased employment.
55 Professor Bruce Love, orthopaedic surgeon, examined Mr Piercey on 9 June 2016. His report dated 13 June 2016 was tendered in evidence.[75] Professor Love commented on the knee injury, describing it as an aggravation of the underlying chondromalacia. He also stated, in relation to prognosis:
“In order for him to achieve a full return to work, significant improvement in both his physical and psychological condition will be required. It appears however that it is his psychological condition that is the major contributor to his absence of work capacity at this time.”[76]
[75]Exhibit 5, pp 5-12
[76]Exhibit 5, p 10
56 Mr Piercey was also seen by Mr Timothy Entwisle, psychiatrist, on 9 June 2016. Dr Entwisle’s report dated 16 June 2016 was also tendered in evidence.[77] Dr Entwisle described Mr Piercey’s condition as an adjustment disorder with anxious mood, but regarded it as an aggravation of a pre‑existing condition noting he had required treatment for depression in the past. At that stage he described Mr Piercey has having a capacity for work in another workplace.[78]
[77]Exhibit 5, pp 13-16
[78]Exhibit 5, p 16
57 Mr Piercey was examined by Dr Joseph Slesenger, occupational physician, on four occasions between June 2016 and February 2018. Dr Slesenger’s four reports were tendered into evidence.[79] In his two reports following his examinations during 2017, Dr Slesenger formed the view that Mr Piercey’s knee injury would not stop him from returning at least to alternative duties. He noted the presence of psychological condition on each of those examinations.
[79]Exhibit 5, pp 17-46
58 When Dr Slesenger examined Mr Piercey on the third occasion on 17 February 2018, he noted that Mr Piercey’s mental health had deteriorated significantly and that he had ceased attending a physiotherapist and treatment for the physical impairment had ceased. Dr Slesenger noted Mr Piercey’s complaints of a significant sleep disorder and re-scheduled the appointment for a later time.[80]
[80]Exhibit 5, p 38
59 Dr Slesenger last examined Mr Piercey on 17 February 2018 and on that occasion noted a complaint that the knee symptoms had deteriorated.[81] Dr Slesenger however concluded in his report that the injury to the right knee had resolved and stated:
“There is no physical basis for Mr Piercey’s current impairment.”[82]
[81]Exhibit 5, p 41
[82]Exhibit 5, p 45
60 Mr Piercey was seen by Dr Peter Graf, psychiatrist, on three occasions between November 2016 and August 2017. Dr Graf’s three reports were tendered as part of Exhibit 5.[83] Dr Graf took a very detailed history of what he described a bullying behaviour and diagnosed Mr Piercey as suffering from an adjustment disorder with depressed mood. He regarded Mr Piercey as being unable to return to work, although he expressed the view that if an alternative workplace could be found for him, this would eventually be very helpful to his rehabilitation:
“However, he is currently some way off having a capacity to return to any work at present.”[84]
[83]Exhibit 5, pp 47-62
[84]Exhibit 5, p 52
61 When Dr Graf next examined Mr Piercey in March 2017 he believed that his adjustment disorder had improved. He also commented that there had been an improvement in his general attitude and:
“… he was more positive about the future, being able to present some plans for the type of work that he thought he might be interested in doing in the future.”[85]
[85]Exhibit 5, p 55
62 Dr Graf believed at that stage that Mr Piercey should continue psychological treatment for at least six months and antidepressant medication for at least another 12 months.[86]
[86]Exhibit 5, p 56
63 Dr Graf last saw Mr Piercey on 22 August 2017. At that stage he commented:
“Andrew’s knee seems to have improved to the point where it gives him very little in the way of problems at present. However, the same cannot be said for his psychological state where, if anything, there seems to have been some deterioration compared to how he was when I last saw him five months ago. His depression has increased despite a change in anti-depressant medication and ongoing treatment with his psychologist.”[87]
[87]Exhibit 5, p 58
64 In terms of returning to work Dr Graf regarded the timeframe as a difficult question. He stated:
“In my opinion, given that the deterioration of the worker’s condition, from the point of view of his Adjustment Disorder, my opinion is that he is not fit to return to work. He certainly isn’t fit to return to his current employer given that he was bullied by them. Given he is currently depressed he will need a lot of support and a very gradual return to work with an alternative employer.”[88]
[88]Exhibit 5, p 59
65 Mr Piercey was examined by Associate Professor Shashjit Varma, psychiatrist, on 9 March 2018. Dr Varma’s report dated 20 March 2018 and a supplementary opinion dated 16 April 2018 were tendered into evidence.[89]
[89]Exhibit 5, pp 63-74
66 Dr Varma again took a detailed history relevant to the psychological aspects of Mr Piercey’s presentation:
“He claims that his boss was stalking him, he would come to Mr Piercey’s home and Mr Piercey said that his boss was keeping an eye on his activities. Then Mr Piercey became paranoid. He was also traumatised by what his employer did to him. He said they gave him warning after warning after warning which affected him mentally and affected his self‑esteem and self-confidence. …
He said that while he was working he would have nasty nose bleeds because of his stress. He will have panic attacks but now he has nightmares about his employer, what they did and occasional bad dreams.”[90]
[90]Exhibit 5, p 64
67 Dr Varma diagnosed Mr Piercey as suffering from an adjustment disorder, secondary to knee injury and also, alleged, stress at work. He described the psychiatric symptoms as mild to moderate and noted that Mr Piercey’s mental state was more or less the same since he had ceased work.[91]
[91]Exhibit 5, p 66
68 Dr Varma regarded Mr Piercey as having some capacity for alternative employment from a purely psychiatric point of view, but noted:
“… from a right knee point of view I cannot see him working so soon but I will leave it to the orthopaedic surgeon to comment on the knee.”[92]
[92]Exhibit 5, p 67
69 He concluded his report by noting that the only barrier preventing Mr Piercey engaging in rehabilitation or return to work was the right knee taking time to improve.[93]
[93]Exhibit 5, p 69
70 The most recent medical opinion relied upon by the defendant was that from Dr Alan Jager, psychiatrist, who examined Mr Piercey on 6 June 2018 and provided a report to the defendant’s solicitors dated 25 June 2018.[94] Dr Jager has recorded a detailed history and diagnosed Mr Piercey as suffering from a major depressive disorder with anxiety and a strong sense of perceived injustice. Dr Jager commented that Mr Piercey had suffered two previous depressive episodes and believed that he would recover from his episode as he has done in the past. He did however caution that without maintenance treatment requiring lifelong medication and some supervision by a psychiatrist, he would always be prone to relapses.[95]
[94]Exhibit 5, p 75-81
[95]Exhibit 5, p 80
71 In relation to capacity for work Dr Jager expressed the following opinion:
“If he has presented to me in a genuine fashion talking about significant depression and suicidal thoughts he is incapable of work.”[96]
[96]Exhibit 5, p 80
72 In addition to the medical reports referred to above, Mr Middleton QC tendered into evidence the clinical notes from Dr Pokharel dated 4 May 2016,[97] and the plaintiff’s solicitor’s letter of instruction to Dr Kaplan dated 4 December 2019.[98]
[97]Exhibit 2
[98]Exhibit 4
Analysis
73 In final address Mr Middleton QC argued that the plaintiff could not disentangle the non-organic components following either his hand injury in 2013 or his knee injury in 2016 from those said to relate to the episodes of bullying and harassment, which are the subject of this application. He referred me to the authorities of Shock Records Pty Ltd v Jones[99] and Peak Engineering Pty Ltd & Anor v McKenzie.[100]
[99][2006] VSCA 180 at [69]
[100][2014] VSCA 67 at [24] to [26]
74 Mr Middleton QC pointed to a number of medical histories post-dating 2016 where Mr Piercey had maintained that the ongoing physical injuries, especially in relation to his hand, were an ongoing source of emotional problems for him.
75 I accept the proposition of law that the plaintiff must establish the extent of consequences following from the particular injury upon which his application is based. In Peak Engineering the court referred to a finding by the trial judge that the plaintiff’s ability to engage in a recreational activity of playing pool had been compromised by reason of his hand injury, which was the injury relied on by the plaintiff. It later emerged in cross‑examination that this activity was also compromised by an earlier knee injury which had been the subject of a separate serious injury application. The Court of Appeal stated:
“Given his Honour’s view that the impact on this recreational activity was attributable to the hand injury, it is necessary in my opinion to make findings about whether, and to what extent, the knee injury had also contributed. On Mr McKenzie’s own evidence, it seems most likely that it was a significant contributor.”[101]
[101]Ibid at [28]
76 Mr Middleton QC referred in particular to the clinical notes from Dr Huang as evidence for his proposition that during 2017 and 2018 Mr Piercey was still relating his psychological symptoms in part to the original hand injury in 2013. He additionally referred to Dr Huang’s report in December 2018 as evidence that Mr Piercey was still suffering ongoing symptoms from his knee in addition to “significant depression and anxiety as a result of the above injury and the course of events that has followed.”[102]
[102]T 88, L 13
77 Mr Middleton QC raised in argument the issues of “permanency” and “severity” in terms of Mr Piercey’s claimed injuries with particular reference to the opinions of the treating psychologists. He further submitted that any finding of relevant compensable injury flowing from the claimed harassment and bullying should be assessed as an aggravation injury in accordance with the principles in Petkovski v Galletti.[103]
[103][1994] 1 VR 436
78 Finally Mr Middleton QC canvassed the histories obtained by a number of the medico-legal examiners to emphasise his principle point that the reliability of Mr Piercey must be questioned in terms of giving appropriate objective support to justify the grant of leave.
79 Conversely Mr Ingram QC submitted that Mr Piercey had suffered “a very moderate” amount of psychological reaction consequent on both his wrist injury and knee injury, and the court should be satisfied that the severe and permanent consequences which the plaintiff had later experienced were causally related to the episodes of bullying and harassment during 2016.
80 Mr Ingram QC urged me to accept Mr Piercey as “a complete witness of truth”[104] I do accept that Mr Piercey was generally a reliable and truthful witness, although it is clear that the focus of his evidence was directed towards the bullying and harassment rather than any physical injuries. I specifically do not find that the omissions in the history given to a number of medical practitioners concerning matters such as his earlier use of marijuana are such as to significantly weaken the overall reliability of his evidence.
[104]T 112, L 6
81 Mr Ingram QC referred me to Zlateska v Consolidated Cleaning Services Pty Ltd & Anor[105] where the Court of Appeal stated:
“The question of causation is a matter of common sense. It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any ‘special risk’ of or ‘special exposure’ to injury.[106]
[105][2008] VSC 85
[106]Ibid at [80]
82 Mr Ingram QC also took me to the clinical notes of Dr Huang to emphasise the proximity of complaints of bullying to the cessation of employment in early May 2016.[107]
[107]T 117, L 23-31
83 Finally, Mr Ingram QC referred to a number of medical opinions which he submitted were probative of an absence of any ability to perform suitable employment for the foreseeable future.
84 In a brief reply Mr Middleton QC submitted that the contemporaneous medical evidence from the time of Mr Piercey’s cessation of employment in May 2016 was more consistent with the mental disorder being consequent upon the physical injury rather than resulting from bullying. He again emphasised that the plaintiff had the onus of proof in this regard.
85 There is little dispute on the medical evidence in this case that Mr Piercey suffers from a diagnosed psychiatric condition, most recently described by Dr Serry as a “moderately severe chronic adjustment disorder with anxious and depressed mood and with features of traumatisation and panic.”[108] Dr Serry also made reference to secondary cannabis use issues, but without any further comment of significance. The most recent medical opinion obtained on behalf of the defendant was from Dr Jager in June 2018. Dr Jager described Mr Piercey as suffering from a major depressive disorder with anxiety. He noted that this was the third major depressive episode suffered by Mr Piercey and stated:
“He should recover from this episode as he has from two prior depressive episodes but without maintenance treatment will always be prone to relapses.”[109]
[108]Exhibit 6, p 71
[109]Exhibit 5, pp 79-80
86 I am satisfied that whatever the psychiatric descriptor of Mr Piercey’s emotional state there is ample evidence to demonstrate a very significant deterioration of his condition in the period now approaching four years from the cessation of his employment in early May 2016. He is now 41 years of age and the progress of his emotional condition over that period is perhaps best summed up in the very recent report from Dr Khan at Peninsula Health, who saw Mr Piercey on 30 January 2020 for:
“… persistent low mood, severe social anxiety and withdrawal surrounding his workplace injury that occurred a few years ago. He was assessed as having a moderate to high chronic risk of suicidality in the setting of protracted WorkCover issues.
During assessment Andrew described a debilitating course of mental health struggles that followed after pursuing work cover claims which has evolved into PTSD light symptoms and persistent depressivity.”[110]
[110]Exhibit F, p 53A
87 I am satisfied that both the wrist injury of 2013 and the knee injury in May 2016 did produce non-organic symptoms which must continue to form part of Mr Piercey’s overall symptom complex. It was clear that the notes from his own general practitioner during 2018 demonstrated some continued focus on those earlier physical injuries as contributing to his emotional state. Nevertheless the opinions from Professor Bruce Love in 2016 and Dr Joseph Slesinger in 2017 and 2018 are, in my view, accurate in describing both those physical injuries as relatively minor. I cannot conclude that the present psychological state of the plaintiff is significantly related to those earlier physical injuries. At most, they are a minor contributor when objectively viewed.
88 I accept that the episodes of bullying and harassment which are described in vivid detail by Mr Piercey are strongly supportive of Mr Piercey’s claim that this clear cut bullying had resulted in effectively a mental breakdown. The assessment of Dr Graf in his first report, prepared in November 2016, is strongly supportive of such a conclusion.
89 To the extent that some degree of disentanglement is required, I am satisfied that whatever the extent of emotional sequelae occurred subsequent to the 2013 hand injury, it did not prevent Mr Piercey from returning to employment with his employer in January 2016. He was at that stage only 37 years of age and it would not be unreasonable to expect him to have some emotional issues as a result of that earlier injury. Equally, at the time of the knee injury in May 2016, it would be reasonable to expect ongoing complaints of pain such as those noted by Dr Huang at least up until 2018, would again produce secondary emotional issues.
90 There is however no medical evidence which would satisfy me that a relatively minor knee injury would be likely to produce anywhere near the extent of emotional sequelae which would see Mr Piercey diagnosed in late January 2020 with such a severe symptom complex. The opinions of Professor Love and Dr Slesinger to which I have referred are of assistance in reaching this conclusion.
91 I do accept Mr Piercey has focused, perhaps unusually, on the lack of support received from his employer and what he perceives as injustice upon him. In the absence of any factual challenge to the allegations he has made, I too regard such conduct as quite clear examples of bullying and perhaps harassment.
92 Nevertheless it is not the task of the court to evaluate the extent to which a “wrong” has been perpetrated against a worker. It is the task of the court, in accordance with Petkovski v Galletti to assess the extent to which consequences have been produced by reason of the aggravation of the condition due to the claimed work-related injury.
93 I am satisfied that the most obvious and catastrophic consequence to the plaintiff has been the effective destruction of his ability to continue his work for the employer, or indeed to pursue any suitable employment. The fact that he has now a history of two suicide attempts and despite ongoing treatment by at least two psychologists, has been left in a position where his condition was as described by Dr Khan in late January 2020.
94 I am satisfied that the mental or behavioural disturbance or disorder, as variously described, has had a catastrophic effect upon his earning capacity and this is likely to continue into the foreseeable future. Indeed it would be reasonable to conclude on the basis of Dr Graf’s most recent opinion that if anything his condition is deteriorating. Notwithstanding the very significant bar for the grant of leave where serious injury is claimed on the basis of a mental or behavioural disturbance or disorder, I note Mr Piercey’s relatively young age, the fact that he was not challenged in terms of any residual work capacity and the fact that he has seen at least two psychologists over an extended period since 2018 without any apparent improvement in his condition.
95 I am satisfied that as a consequence of the bullying and harassment suffered by him in the period January to June 2016, Mr Piercey has suffered consequences that are properly described as permanent and severe, noting that the word “severe” connotes a higher degree of grievousness than the word “serious”, which is otherwise applicable to grants of leave in respect of organic injuries.
Conclusion
96 I am satisfied that Mr Piercey has discharged the onus upon him to demonstrate that the consequences in terms of pecuniary loss to which the claimed bullying and harassment during 2016 have been a cause is properly described as permanent and severe. It is unnecessary to separately consider consequences relating to pain and suffering.
97 I propose to grant leave to the plaintiff in respect of pecuniary loss and pain and suffering.
98 I will hear the parties in respect of the formal orders sought and on the question of costs.
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