Pitaris v Victorian WorkCover Authority
[2019] VCC 227
•15 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03063
| AFRODITE PITARIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January, 1 and 5 February 2019 | |
DATE OF JUDGMENT: | 15 March 2019 | |
CASE MAY BE CITED AS: | Pitaris v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 227 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering consequences – loss of earning capacity – psychological and psychiatric injury – Major Depressive Disorder and Generalised Anxiety Disorder – plaintiff’s work capacity completely destroyed
Legislation Cited: Accident Compensation Act 1985, s135AB(16)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Cavenettv Commonwealth of Australia [2007] VSCA 88
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages as a result of the psychiatric injury she received in the course of her employment with Legal Guard Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram SC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Ms B A Myers | Hall & Wilcox |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 17 July 2018. The plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of, or in the course of, her employment with Legal Guard Pty Ltd between April of 2012 and February of 2014.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff brings her claimed based on the fact that she has suffered a psychiatric injury as a result of the conduct of her employer’s bullying and repeated harassment including expletive abusive language.
3 Legal Guard Pty Ltd did not pay the plaintiff in a regular and appropriate manner, causing further financial and psychological stress on the plaintiff.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined
·Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 2 to 88
§Exhibit 1, the Defendant’s Court Book No 1 (“DCB1”), pages 6 to 154
§Exhibit 2, the Defendant’s Court Book No 2 (“DCB2”), pages 6 to 144.
5 The Defendant’s Court Books were voluminous and I have read the relevant passages from those Court Books.
6 Ms Myers, on behalf of the defendant, identified the issues in this application as follows:
(i) What consequences has the plaintiff suffered which have been caused by her work with Legal Guard Pty Ltd;
(ii) The plaintiff does not satisfy the “severe” test required under the Act;
(iii) The credit of the plaintiff is in dispute.[1]
[1]Transcript (“T”) 15
7 The plaintiff was cross-examined extensively during the course of this application. There was no requirement for any of the treating practitioners or the medico-legal practitioners to be cross-examined by the defendant in this case.
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in ss37C of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”. The severe mental or severe behavioural disturbance or disorder is said to be a Major Depressive Disorder and Generalised Anxiety Disorder.
9 The relevant considerations that apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course or in the course of her employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
10 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
11 In this case, the plaintiff seeks a serious injury certificate for a permanent severe mental or permanent severe behavioural disturbance or disorder. The law in relation to serious injury certification for mental or permanent severe behavioural disturbances or disorders is well settled. In the judgment of the Court of Appeal in Mobilio v Balliotis,[4] the meaning of severe was resolved. Brooking JA held, at page 846, that the change in the language from “serious” to “severe” betokens a change in meaning. Brooking JA stated that “severe” was used in the definition as a stronger word than “serious”. In short, the test for the plaintiff to satisfy is a very substantial test before a serious injury certification can be made under this heading.
[4][1998] 3 VR 833
The Plaintiff’s background
12 The plaintiff was born in 1962 and is now fifty-six years of age.[5] The plaintiff was born and raised in Melbourne. The plaintiff has been married and divorced and has one son from that marriage. Her son is grown up and lives overseas.
[5]PCB 3
13 The plaintiff was educated to Year 10 level at Sunshine West High School.[6] After leaving school, the plaintiff completed a hairdressing course in 1976. The plaintiff also completed a Certificate II in Theatrical Makeup in 1988. The plaintiff’s training continued by the completion of a Diploma in Business Marketing in the 1990s. She also completed a Certificate III in Trainer Training in 1995. Her last qualification was obtained in 2011, where she obtained an occupational health and safety qualification.[7]
[6]PCB 3
[7]DCB1, page 81
14 The plaintiff has an impressive work history. After qualifying as a hairdresser, she worked for the then famous Terence Rinati Salon in Carlton. She worked for other hairdressing proprietors throughout the 1980s. In the 1980s, the plaintiff conducted two hair salons in Footscray and Balwyn. She built those businesses up and sold them off. The plaintiff then purchased a salon in Richmond. The plaintiff currently has a business name registered to herself in the name of Selective Salons.
15 After completing her time in hairdressing salons, the plaintiff then worked for InterFlora as the membership manager for a period of four to five years. This was an executive-type position.
16 The plaintiff then returned to work as a customer service manager at M & J Chickens. This employment was followed by a period of casual hairdressing work at Fine Edge Hair Design.
17 In the period immediately before her employment with the employer, the plaintiff had a period of time on Centrelink payments. In April 2012, the plaintiff commenced employment with Legal Guard Pty Ltd.
18 The plaintiff was well trained in the conduct of businesses and the management of businesses and dealing with customer-service related issues. The plaintiff had a proven work record and was motivated to conduct her own businesses.
Injury with Legal Guard Pty Ltd
The role of the Plaintiff at Legal Guard Pty Ltd
19 Mr Bill Nalbandidis, director of Legal Guard Pty Ltd, described the plaintiff’s work with his company as follows:
“… The plaintiff was like a partner in the company with me; helping to pick out furniture, computers, advertising.
After the office was set-up, the plaintiff continued to help me running the company; working together, coming up with ideas and building the business. The plaintiff helped me put the website together, helped to answer emails, liaise with clients, trained the sales people and put together a sales training kit. The plaintiff also entered into various sales contracts on behalf of Legal Guard Pty Ltd, in particular, with the communication companies.”[8]
[8]DCB2, page 100
20 The plaintiff sets out the basis for her injury in an affidavit sworn on 23 January 2018. She states:
“I suffered injury throughout the course of my employment resulting from targeted bullying at the hands of Nalbandidis. The nature of this bullying was directed over a variety of different areas and modes of harassment. I was subjected to repeated bullying and harassment through the use of expletive language directed towards me on a regular basis. I was variously called depending on Nalbandidis’ mood, ‘useless’, ‘hopeless’, ‘can’t do anything’, ‘can’t do anything right’, ‘you’re a fucking idiot’, ‘what the fuck are you doing?’, ‘useless cunt’, ‘cunt’, ‘fucking cunt’, and ‘where are you going to go?’ and other like expressions.
I found these forms of abuse demeaning of me both personally and in my work but I was anxious to retain my position of employment with Legal Guard Pty Ltd and was forced to put up with the abuse.
However, the abuse also contained a second aspect namely a sexual aspect. I was working long hours in close physical contact to Nalbandidis and on repeated occasions he made sexually overt comments to me including the suggestion that we engage in sexual intercourse to, as Nalbandidis put it, ‘release sexual feelings’. I had no such feelings towards Nalbandidis and no sexual relationship ever occurred despite this further form of abusive behaviour.”[9]
[9]PCB 3-4
21 The plaintiff stated that she was not paid for the work that she performed despite the fact that there was an initial agreement with Mr Nalbandidis for a payment of $500 per week for the first three months of operation of the business and thereafter, an income of $1,000 per week for the first twelve months. The plaintiff stated that she was not paid regularly or barely at all. This non payment of her legally-based wages caused her to have significant financial difficulty, resulting in further psychological and psychiatric difficulties.
22 The plaintiff submitted a Claim Form in March of 2014. In that Claim Form, the plaintiff stated that she was suffering chronic depression and post-traumatic stress. The plaintiff stated that that injury occurred as a result of an excessive workload and hours, lack of support, difficult working conditions, persistent underpayment and or non payment of wages.[10]
[10]DCB2, page 10
23 I accept the plaintiff’s evidence about the circumstances and behaviour of Mr Nalbandidis being a cause of her attendance upon Dr Haripersad, general practitioner, for depression and post-traumatic stress, as she has described it. I note that Mr Nalbandidis swore an affidavit dated 29 January 2019 and whilst he dealt with other allegations set out by the plaintiff, he did not deny the allegations of abuse, sexual harassment and non payment to the plaintiff.
Medical treatment
24 The plaintiff has been a patient of Dr Suren Haripersad, general practitioner, since 17 January 2011.[11] Dr Haripersad continues to treat the plaintiff for Major Depression. He assists in the supervision of her medications and psychotherapy sessions.[12]
[11]PCB 11
[12]PCB 41
25 The plaintiff initially consulted Dr Seyed Assadi, psychiatrist, on 20 May 2014 for psychiatric assessment and a management plan.[13]
[13]PCB 8
26 The plaintiff then transferred her psychiatric treatment to Dr Akinsola Akinbiyi, consultant psychiatrist. Dr Akinbiyi first consulted the plaintiff on 20 October 2014.[14]
[14]PCB 14
27 The plaintiff continues to be under the care of Dr Akinbiyi.
28 The plaintiff commenced seeing Dr Anita Govinda, psychologist, on 27 April 2015 for CBT based psychotherapy.[15]
[15]PCB 85
29 The plaintiff has also been seen by Ms Sarah Tiong, psychologist. The plaintiff was a patient of Ms Tiong, commencing on 16 February 2016.[16]
[16]PCB 42
30 In August of 2018, the plaintiff was seeking to engage with a psychologist closer to her home as she was unable to travel the distance to see Ms Sarah Tiong.[17] At the present time, the plaintiff it not receiving treatment from a psychologist because she has been unable to engage a psychologist close to her place of residence.
[17]PCB 43
Medical opinions
The Plaintiff’s doctors
Dr Suren Haripersad, general practitioner
31 Dr Haripersad prepared five reports in respect of this application. Those reports are dated 13 May 2014, 17 June 2015, 11 November 2015, 17 August 2016, 6 April 2017 and 30 January 2019.
32 The plaintiff has been a patient of Dr Haripersad since 17 January 2011.[18] Dr Haripersad noted that in June of 2015, the plaintiff was on medication of 20 milligrams of Lexapro and was seeing a psychiatrist and psychologist.
[18]PCB 11
33 In November 2015, Dr Haripersad diagnosed the plaintiff as suffering from Major Depression and a Generalised Anxiety Disorder.[19]
[19]PCB 20
34 In his report dated 6 April 2017, Dr Haripersad reported as follows:
“Miss Pitaris’s condition of Major Depression has been ongoing from November 2014 [scil 2013] after her stressful work conditions and environment at Legal Guard. She has been on ongoing treatment with medication prescribed by a psychiatrist and having had psychotherapy. Despite all the medications she still has a flat effect, poor sleep and concentration, low moods, lack of interest of self and surroundings, [d]emotivated and depressed – all the manifestations of Major Depression.
Afrodite is very compliant with her medications and also attended her psychotherapy sessions. Despite this I am of the opinion she is unfit for for work in any capacity.”[20]
[20]PCB 41
35 More recently, Dr Haripersad, on 30 January 2019, stated that the plaintiff has a poor quality of life as a result of her diagnosis of Major Depression in 2014. He noted that the plaintiff is unfit to seek employment in the open market in any capacity.[21] In that report, Dr Haripersad noted that the plaintiff was currently under the care of psychiatrist, Dr Akinbiyi, and that she is on medication supervised by that psychiatrist. Dr Akinbiyi also noted that the plaintiff had been admitted to the Royal Melbourne Hospital for a relapse in 2018.[22]
[21]PCB 88
[22]PCB 88
Dr Seyed Assadi, psychiatrist
36 Dr Assadi was the initial psychiatrist the plaintiff was referred to. The plaintiff first saw Dr Assadi on 20 May 2014. At that time, Dr Assadi diagnosed the plaintiff as suffering from an Adjustment Disorder with Depressed Mood and Anxiety. Dr Assadi was recommending the plaintiff be assisted by a psychologist. Dr Assadi recommended that the plaintiff be prescribed Escitalopram, 10 milligram per day.[23]
[23]PCB 10
Dr Akinsola Akinbiyi, psychiatrist
37 Dr Akinbiyi prepared a number of reports for this proceeding. Dr Akinsola Akinbiyi has been the treating psychiatrist for the plaintiff since 20 October 2014, and continues to be so.[24]
[24]PCB 14
38 Dr Akinbiyi took a history from the plaintiff that her mother had died in 2011. He also took a history that there was no mental illness history within her family. His diagnosis at that time was of Major Depressive Disorder with a Generalised Anxiety Disorder.[25]
[25]PCB 15
39 Dr Akinbiyi had noted that the plaintiff had been tried on Cymbalta, 90 milligram per day, with no improvement of her mental state. The plaintiff had also been trialled on Lexapro, 20 milligram, with side effects of weight gain and no appropriate response. Dr Akinbiyi, in July 2015, commenced the plaintiff on Effexor XR.
40 At the time of his first report on 8 October 2015, Dr Akinbiyi was of the view that the prognosis for the plaintiff would be good. He recommended that the plaintiff would need the assistance of a psychiatrist regularly for the next twelve to twenty-four months.[26]
[26]PCB 17
41 In October 2015, Dr Akinbiyi stated that the plaintiff had no capacity for employment. He noted that the plaintiff had responded poorly to anti-depressants and had recently been switched onto the new anti-depressants.[27]
[27]PCB 19
42 On 4 May 2016, Dr Akinbiyi reported that the plaintiff was continuing to suffer from a Major Depressive Disorder and Generalised Anxiety Disorder. Dr Akinbiyi confirmed that the plaintiff’s medication at that time was Effexor XTR, 225 milligram per day.[28]
[28]PCB 24
43 In his report dated 24 August 2016, Dr Akinbiyi stated that the plaintiff had no capacity for employment. He noted that the plaintiff had had a partial response to anti-depressants with a review on 23 August 2016 where a further anti-depressant was going to be added to her regime.[29]
[29]PCB 29
44 In a report dated 4 November 2016, Dr Akinbiyi noted that the plaintiff’s condition had stabilised. In his opinion, the plaintiff continued to experience moderate anxiety and depressive symptoms. He thought that the plaintiff, at that stage, was well enough to consider alternative employment of up to fifteen hours per week.[30]
[30]PCB 33
45 In his report dated 21 December 2016, Dr Akinbiyi stated that the plaintiff did have a capacity for alternative employment. He noted that the plaintiff would need treatment for the rest of her life or at least for a very long time. He also noted that the plaintiff’s illness was stable with medication and psychotherapy.[31]
[31]PCB 35
46 In February of 2017, Dr Akinbiyi reported that the plaintiff’s condition of Major Depressive Disorder, Generalised Anxiety Disorder and an Adjustment Disorder with Mixed Anxiety and Depressed Mood were her current diagnosis. Dr Akinbiyi had changed the plaintiff’s medications at this time as the plaintiff was experiencing greater stress due to WorkCover cutting her weekly payments, ceasing on 26 March 2017. The plaintiff’s new medications at February 2017 were:
· Avanza, 30 milligram
· Effexor XR, 30 milligram
· CPZ, 75 milligram.[32]
[32]PCB 36
47 Dr Akinbiyi reported on 29 January 2019. In that report, Dr Akinbiyi noted that the plaintiff had been admitted to John Cade Psychiatric Unit at Royal Melbourne Hospital on 1 July 2018. At that time, Dr Akinbiyi diagnosed the plaintiff as suffering from a Major Depressive Disorder, Generalised Anxiety Disorder, alcohol abuse and cannabis abuse.
48 The plaintiff’s current medications as at January 2019 are as follows:
· Zoloft, 200 milligram mane
· Largactil, 75 milligram nocte
· Propranolol, 20 milligram tds
· Thiamine, 100 milligram daily
· Ibuprofen, 150 mbd, 300 milligram nocte
· Tramadol, 50 milligram bd
· Ventolin inhaler PRN.[33]
[33]PCB 86
49 At that time, Dr Akinbiyi was of the opinion the plaintiff would benefit from admission to an inpatient psychiatric facility to undergo withdrawal and rehabilitation for alcohol and cannabis. Dr Akinbiyi’s opinion relevantly was that the plaintiff had developed anxiety and a depressive illness because of the workplace injury. He went on to state that the plaintiff has a total incapacity for employment, and that it would continue for the future. He noted that the plaintiff had responded poorly to treatment and the trial of five separate anti-depressants.
50 Dr Akinbiyi has had the advantage of treating the plaintiff over a long period of time. He has seen the ups and downs of her condition and currently assesses the plaintiff as having no capacity for work. In his view, the lack of capacity for work is to continue into the near future. I accept that based on the opinion of Dr Akinbiyi, that the plaintiff has no capacity for employment and that is into the foreseeable future, as the plaintiff’s history since first seeing Dr Akinbiyi has been one of an incapacity to re-engage in employment.
Ms Sarah Tiong, psychologist
51 Ms Tiong prepared two reports, dated 27 February 2017 and 25 August 2018. The plaintiff has been a patient of Ms Tiong since 16 February 2016. Ms Tiong’s diagnosis is of Major Depressive Disorder with Generalised Anxiety Disorder. At the time of writing her report in February 2017, Ms Tiong was of the opinion that the plaintiff had no capacity for employment.[34]
[34]PCB 38-39
52 In her later report dated 25 August 2018, Ms Tiong confirmed that the plaintiff was attempting to engage a psychologist who was closer to the plaintiff’s home so that she could have regular therapy. Ms Tiong confirmed that the plaintiff had no current capacity for employment. Ms Tiong noted that the plaintiff continued to have a requirement for medication with regular psychotherapy, and that her prognosis was uncertain.[35]
[35]PCB 44
53 Ms Tiong noted that the plaintiff’s condition is stabilised and that her presentation over the approximate two-and-a-half years of treatment had been consistent.[36]
[36]PCB 45
Dr David Weissman, psychiatrist
54 Dr Weissman prepared two medico-legal reports, dated 3 June 2015 and 29 August 2018. At the time of his first report, Dr Weissman’s opinion was as follows:
“Diagnosis:
However, I conducted a psychiatric assessment of the worker/claimant Ms Afrodite Pitaris and concluded that she is suffering from a chronic Major Depressive Disorder with anxiety and traumatisation features of moderate to moderately severe intensity or severity, and not merely a chronic Adjustment Disorder.
…
At the present time, Ms Pitaris is suffering from at least a moderate, if not moderately severe decline and deterioration in her quality of life, level of enjoyment and pleasure.
… At this stage, I believe that Ms Pitaris is totally incapacitated for all work including pre-injury duties, suitable duties or alternate duties. … .”[37]
[37]PCB 55
55 In his later report dated 29 August 2018, Dr Weissman noted that the plaintiff impressed him as being very stoical, resilient, diligent, high functioning, conscientious and intelligent.[38] In his view, the plaintiff’s depressive syndrome had deteriorated further from the time when he first saw her.
[38]PCB 75
56 Dr Weissman diagnosed the plaintiff as suffering from a Severe Chronic Major Depressive Disorder with Anxious Distress and Traumatised Features. He also noted the plaintiff had alcohol use disorder and cannabis abuse.[39] Dr Weissman noted that the plaintiff was suffering from a severe group of employment-related psychiatric conditions and mental injuries.
[39]PCB 76
57 In Dr Weissman’s view, the plaintiff remained totally incapacitated for all work for the foreseeable future, associated with a total loss of earning capacity for the future and significant pecuniary disadvantage. He stated that the plaintiff was totally and permanently incapacitated for all work due to her mental health condition.[40]
[40]PCB 76
58 Dr Weissman then set out his prognosis as follows:
“• Ms Pitaris’s psychiatric prognosis for the future is very uncertain and guarded, and likely to be very poor, negative and unfavourable, if not bleak.
• She is currently suffering from a severe chronic Major Depressive Disorder with anxious distress and traumatisation features.
• She remains totally and permanently incapacitated for all work.”[41]
[41]PCB 76-77
Dr Michael Epstein, psychiatrist
59 Dr Epstein prepared a report dated 14 November 2017. Dr Epstein noted that the plaintiff’s prognosis for improvement is poor. She is having both psychiatric and psychological treatment with no evidence of any significant benefit, although it may well have prevented further deterioration in the plaintiff’s condition. He noted that the plaintiff’s current work capacity is nil and is unlikely to improve in the foreseeable future, either with her pre-injury employer or any other suitable employment.[42]
[42]PCB 65
The Defendant’s doctors
Dr Natalie Krapivensky, psychiatrist
60 Dr Krapivensky prepared two reports, dated 3 August 2015 and 9 April 2014. In her first report dated 9 April 2014, Dr Krapivensky took a history from the plaintiff that she had the title of a senior executive manager at Legal Guard Pty Ltd.[43]
[43]DCB2, page 14
61 Dr Krapivensky’s opinion was that the plaintiff suffered from a depressive illness, and stated that the work was an aggravation of a pre-existing condition of depression. Dr Krapivensky stated that the context of the current claim is not entirely clear to me.[44]
[44]DCB2, page 16
62 Dr Krapivensky prepared a second report dated 3 August 2015.
63 In her second report, Dr Krapivensky notes as follows:
“Yes, it would be my view that the worker has current work capacity from a psychiatric perspective.”[45]
[45]DCB1, page 13
64 I do not accept that Dr Krapivensky obtained a proper history from the plaintiff. Earlier in that same report, she notes that the WorkCover claim was rejected. This is not in fact the case. The plaintiff was paid weekly payments for a substantial period of time. Further, the statement by Dr Krapivensky that the employer disputes the facts presented by the plaintiff is also not correct. On the material before me, there is no disputation from the employer, Mr Nalbandidis, of the allegations made against him by the plaintiff. Further, the opinion of Dr Krapivensky that the plaintiff had a current work capacity from a psychiatric perspective is at odds with the other concurrent psychiatric evidence relating to the condition of the plaintiff.
Dr Richard Prytula, psychiatrist
65 Dr Prytula prepared one report dated 23 March 2017. Dr Prytula prepared this report on behalf of the insurer for the defendant. Dr Prytula noted that the plaintiff was, at that time, on the medications of Deralin, Avanza, Effexor, Largactil and Mobic.[46] Dr Prytula noted that the plaintiff was attending her general practitioner, Dr Haripersad, and psychiatrist, Dr Akinbiyi, on a fortnightly basis and had frequent sessions with the psychologist, Ms Sarah Tiong.
[46]DCB1, page 16
66 Dr Prytula diagnosed the plaintiff as suffering from a Major Depressive Disorder.[47]
[47]DCB1, page 19
67 Dr Prytula’s final position in relation to the plaintiff’s condition as at March 2017 was as follows:
“Yes, the condition has arisen in connection with work-related issues.
…
The condition appears to be chronic and stable at present. It is likely to continue this way into the future.
…
The worker is not likely to suffer any harm by engaging in occupational and daily living activities within her capacity.”[48]
[48]DCB1, page 20
68 Dr Prytula went on to state that his conclusion was as follows:
“On examination currently, the worker has a Major Depressive Disorder of mild to moderate severity. She has suicidal thoughts, but no suicidal intent.
In relation to her work capacity, she may have a capacity for limited work, however the major obstacle to this would be her overcoming her feeling of distrust of other people currently and without this she has no work capacity.
Her prognosis in the future is that she is likely to continue to suffer from symptoms of her depressive condition on a fluctuating basis.”[49]
[49]DCB1, page 22
Associate Professor George Mendelson, psychiatrist
69 Professor Mendelson examined the plaintiff on behalf of the defendant. He prepared three reports, dated 6 June 2018, 10 July 2018 and 17 December 2018.
70 In his first report, Professor Mendelson noted that the plaintiff was attempting to go back to work, most recently in early 2017. He noted that the plaintiff had obtained two office-type positions.[50] He noted that the plaintiff’s medication had been changed to Setraline and the dosage increased from 50 milligram to 100 milligram daily. The plaintiff was also taking three Largactil, 25-milligram tablets at night.[51]
[50]DCB1, page 34
[51]DCB1, page 36
71 Professor Mendelson gave his opinion as follows:
“You have also asked whether Ms Pitaris has a diagnosable mental illness, and in my view she does describe having developed clinically significant symptoms of both anxiety and depression. In my opinion the most appropriate psychiatric diagnosis is that of an Adjustment disorder: Mixed anxiety and depressive reaction …, which appears to have developed as the result of the stressor of having experienced financial hardship and homelessness. …
Ms Pitaris’s Adjustment disorder appears to be well controlled with treatment under the care of Dr Akinbiyi, and as noted above in the report dated 21 December 2016 it was stated that she ‘now has capacity for alternate employment’. In reply to your question, I agree that Ms Pitaris does have the capacity to commence a return-to-work programme with a different employer, initially on a part time basis, in a position similar to the one she had with Legal Guard.
In my opinion Ms Pitaris’s illness is not permanent. I consider that her current impairment due to residual emotional symptoms is mild.”[52]
[52]DCB1, page 40
72 On 10 July 2018, Professor Mendelson reported on a vocational assessment report dated 30 June 2016 prepared for Accelerait. He stated at that time that the plaintiff had, from a psychiatric and psychological capacity, the ability to undertake the jobs identified in the vocational assessment report dated 30 June 2016.[53]
[53]DCB1, page 51
73 I note by way of history that the very next day, 11 July 2018, the plaintiff was admitted to the Royal Melbourne Hospital for psychiatric care. She remained in the Royal Melbourne Hospital until 17 July 2018. At the time of her admission to hospital, it was noted that the plaintiff was engaged with a private psychiatrist at Harvester Private through WorkCover and engaged with a private psychologist through WorkCover.[54]
[54]DCB2, page 57
74 Professor Mendelson prepared his final report dated 17 December 2018. In that report, Professor Mendelson referred to the discharge summary from the Royal Melbourne Hospital dated 17 July 2018. He notes that there was no diagnosis of Major Depressive Disorder or Generalised Anxiety Disorder.[55]
[55]DCB1, page 55
75 Professor Mendelson has not dealt with the fact that the discharge summary clearly sets out that the plaintiff is receiving private psychiatric and psychological treatment through WorkCover at the time of her discharge from hospital. It is clear from the discharge plan that the plaintiff has been sent back to her psychologist, Ms Sarah Tiong, and her general practitioner, to continue with her treatment. It was recommended that the plaintiff be reviewed for adverse effects from medication and monitoring her mental state.[56]
[56]DCB2, page 57
76 Professor Mendelson’s final report and recommendation is that the plaintiff’s condition has not changed from his original reports of 6 June and 10 July 2018.
77 I find that Professor Mendelson’s opinion is at odds with the expert opinions of the treating psychiatrist, Dr Akinsola Akinbiyi, Dr David Weissman and Dr Michael Epstein.
78 It was clear that the plaintiff’s setback in July 2018 was a result of her being advised that her claim was not seen as a serious claim by the defendant. She has presented at the Royal Melbourne Hospital with a history of binge drinking. It was clear on the evidence that the plaintiff had not been compliant with her psychiatric medications at that time.
79 I find that Professor Mendelson has not taken a full and balanced approach to this episode in the plaintiff’s history.
80 It is clear that the opinions of medical experts is heavily dependent upon the history they are given by the plaintiff. In particular, cases involving the allegations of mental illness are even further dependent upon the history given by the plaintiff to the medical experts.
81 In the case of Petrovic v Victorian WorkCover Authority:[57]
“As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
[57][2018] VSCA 243 at paragraph [74]
82 I accept the plaintiff has accurately outlined her symptoms to her treating medical practitioners and the medical examiners, Dr Weissman and Dr Epstein. The treating psychiatrist has had the advantage of a long period of time of observing the plaintiff and determining whether or not she was genuine and consistent in her complaints. It is clear to me that the plaintiff has done the best she can to accurately describe her symptoms and difficulties, both to the medical practitioners and to the Court.
83 I accept the diagnosis and opinions of her treating psychiatrist and the plaintiff’s medical experts that the plaintiff suffers from a Major Depressive Disorder and a Generalised Anxiety Disorder as a result of her experience during the course of her employment with Legal Guard Pty Ltd. I accept that the plaintiff has no capacity to engage in suitable employment as a result of the severe mental condition that she now suffers from. I accept the medical opinion that this condition is for the foreseeable future and that it has already been long lasting since 2014 to the present time.
The credit of the Plaintiff
84 Ms Myers, counsel for the defendant, prepared sixteen pages of carefully considered submissions. In those submissions, Ms Myers set out a number of areas where the plaintiff was an unreliable witness. Ms Myers submitted that the plaintiff was an unco-operative witness who repeatedly asserted in the course of her evidence that she was unable to remember matters. An example of this approach by the plaintiff was in relation to the issue of the date of her mother’s death. The plaintiff, according to the histories taken by various doctors, had stated a history to them that her mother had died in 2010, 2011 and 2012. There is an assumption in this attack on the plaintiff that the doctors have accurately recorded the date given to them by the plaintiff of her mother’s death.
85 The plaintiff was cross-examined extensively on this topic and finally, the evidence was at follows:
Q:“Now, you’ve told doctors – and I can go to the references – you’ve told some doctors that your mother died in 2010, and some doctors that your mother died in 2011. What is - - -?---
A:I don’t – I really don’t remember the dates. It was pretty traumatic at the time when you have a loved one passing away. So it’s not something you want to remember. I am on so much medication, I don’t - anyway.”[58]
[58]Transcript 47, Lines 3-9
86 I accept that the plaintiff did have difficulty remembering detail of events and in particular, dates and sequences. I do not accept that the plaintiff was deliberately attempting to be misleading or prevaricating about such matters.
87 Ms Myers also submitted that the plaintiff’s memory was selective. An example of that selectiveness was said to relate to a clear memory of who attended at an Accelerait meeting with Dr Akinbiyi. I do not accept that the plaintiff’s memory is selective, particularly in that matter, as it is a matter of human experience that if an event is significant on one’s life, they may focus very specifically on who was present or what any one person said at such a meeting.
88 Ms Myers submitted that the plaintiff’s evidence changed on various topics and, alternatively, was simply implausible. Examples of this evidence given by Ms Myers were:
(a) at what time did her son leave the premises at Port Melbourne and go to live at a premises other than with the plaintiff?
(b) receipt of Centrelink payments;
(c) different start dates for her employment with Legal Guard Pty Ltd;
(d) never being paid by her employer when in fact her evidence was she received random payments totalling $1,500. I note that is over a period of some eighteen months;
(e) the fact that the plaintiff continued to have a registered ABN. The plaintiff’s evidence on this was that she thought the ABN was automatically reinstated when the documentation showed that it had been reactivated in her own name;
(f) that the plaintiff was able to go to Thailand for a two-week holiday in March of 2016 on her own when she was suffering from the conditions as described by her;
(g) the number of applications for jobs since the time of her injury;
(h) the plaintiff’s arrangements for purchasing cannabis; and
(i) the context of Dr Akinbiyi’s advice to her about detox admissions.
89 I accept that some of these matters may be considered implausible on the face of them. The most potentially implausible issue in this case is why the plaintiff continued to remain at work for Mr Nalbandidis for such a long period of time without being paid. Add to that the fact that the plaintiff had been verbally abused and harassed, both verbally and, as she described it, sexually, over the whole period adds even further to a sense of implausibility. Unfortunately for the plaintiff, she is one of those people who has been involved in implausible events but that does not remove the fact that she is doing the best she can to tell the truth as she knows it.
90 The defendant also relied upon evidence from the plaintiff that was directly contradicted by objective documentary evidence. An example of this attack on the plaintiff’s credit was the time that she spent in the Royal Melbourne Hospital in July 2018. It is clear on the discharge summary from the Royal Melbourne Hospital that the plaintiff was admitted to hospital on 11 July 2018 and discharged on 17 July 2018. The plaintiff, in her evidence, insisted that she was in hospital for a period of two weeks. The plaintiff had told other medical practitioners that she had been in hospital for two weeks. In cases where people’s mental state is severely compromised, as it was for the plaintiff in this time, it is readily conceivable that the plaintiff may have thought she had been in hospital for a period of two weeks in July 2018 and has simply repeated that perceived memory.
91 In this case, the fact that the plaintiff was in hospital for six days rather than two weeks as a result of mental illness, does not disrupt my assessment that the plaintiff is suffering from a Severe Major Depression and Generalised Anxiety. I note in the hospital’s report that the plaintiff was suffering from binge drinking or an alcohol disorder. This alcohol disorder is just part of the ongoing psychological and psychiatric condition which commenced as a result of her experiences during the course of her employment at the hands of Mr Nalbandidis.
92 Another example of the plaintiff’s contradiction to documentary evidence is where she stated that she was unable to afford medications in February 2017. At that same time, the plaintiff was in receipt of weekly payments of compensation of $840 gross per week. If it is correct, as the defendant submitted, that the plaintiff was choosing not to take her medication rather than not being able to afford it, then that is to ordinary and common experience known to be often the case with people with the plaintiff’s diagnosed mental condition. Many mental health patients voluntarily cease to take their medication and it is simply all part of their ongoing illness.
93 The plaintiff was also challenged because of the histories given to doctors. I find that the plaintiff has given a reasonably consistent history to the doctors and that it is consistent with her own evidence before the Court. An example where there was some variation was where the plaintiff had denied any use of cannabis. There is a difference in a person denying the use of cannabis and not making any statement that they have used cannabis. I accept the plaintiff’s evidence that she said she was just embarrassed to be using cannabis and to tell someone about it.
94 I have had the advantages of observing the plaintiff give her evidence over a considerable period of time during cross-examination and I accept that she is, and did do the best she could, to give honest and truthful answers in respect to her condition and the symptoms that she suffers from. I accept that, as she explained, due to all the medications she is on, that her memory in relation to dates and sequencing of events is impaired. This is a result of her mental condition and her prescribed medications, not as a result of her dishonesty.
95 Taking into account the long-term treatment by her psychiatrist and her general practitioner, I accept that the plaintiff has consistently suffered from this mental condition that she is currently being treated for and that it is severe in its nature.
Loss of earning capacity
96 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(ii).
97 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
98 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion had the injury not occurred. In this case, the plaintiff’s injury was manifest in or about February 2014. The plaintiff submitted her claim in March 2014. That claim was accepted on behalf of the defendant. Pursuant to the operation of the legislation, the relevant period for assessing the “without injury” income is the three-year period prior to February 2014. I accept the plaintiff’s evidence that she commenced employment with the employer, Legal Guard Pty Ltd, in or about April 2012.
99 For the financial year ending 30 June 2011, the plaintiff received the sum of $12,199 on a Newstart allowance from Centrelink.[59] In the same taxation year, the plaintiff received a gross income of $3,870 from Fine Edge Hair Design.[60]
[59]DCB 2, page 19
[60]DCB 2, page 18
100 In the financial year ending 30 June 2012, the plaintiff received the sum of $12,217 on a Newstart allowance from Centrelink.[61] In the same taxation year, the plaintiff received gross income of $4,587.[62] The documentation does not disclose the name of the employer. Based on the evidence of the plaintiff, I accept that she was working on a casual basis at Fine Edge Hair Design prior to her employment by Legal Guard Pty Ltd. On the balance of probabilities, I accept the payment of $4,587 was payment for her casual work as a hairdresser.
[61]DCB 2, page 18
[62]DCB 1, page 135
101 It is to be noted that from the outset of her term of employment with Legal Guard Pty Ltd, the plaintiff’s complaint is that she was not paid. In part, that is the basis for the plaintiff’s claim for the mental impairment she now suffers.
102 For completeness, I note that the plaintiff received the sum of $6,871 from Centrelink for the financial year ending 30 June 2013. For the year ending 30 June 2014, the plaintiff received $11,508 from Centrelink.[63]
[63]DCB 1, page 139
103 I accept the plaintiff’s evidence that she was to be paid $500 per week for the first three months of the operation of the business of Legal Guard Pty Ltd. Her income was then to increase to $1,000 a week for the first twelve months of employment and to be reviewed at the end of that period.[64] I note in the affidavit of Mr Bill Nalbandidis, sworn 29 January 2019, that he stated as follows:
“There was no formal agreement in relation to employment or wages. The plaintiff understood it was a start-up business. It was discussed that if the business became profitable, I would consider paying the plaintiff a wage. To the best of my recollection, I suggested maybe $500 or $600 gross per week.
I have sighted 2 payslips purporting to be for the fortnight ending 21 February 2013 and 21 March 2013 (the payslips). The payslips were generated by the plaintiff and it is my belief they are not genuine. To the best of my recollection, at no time did I pay or agree to pay the plaintiff a wage of $1,000 a week. Now produced and shown to me and marked with the letters ‘BN 2’ are a true and correct copy of the said payslips.”
[64]PCB 4, paragraph [10]
104 I find, on the balance of probabilities, that the plaintiff was initially to be paid $500 gross per week and thereafter at $1,000 per week. The phrase “to the best of my recollection”, which was used by Mr Nalbandidis, does not outweigh the positive statements made by the plaintiff, which I accept.
105 In Mr Nalbandidis’ affidavit, he refers to the payslips for the period ending the fortnight of 29 March 2013 and the fortnight ending 24 February 2013. He exhibits those payslips to his affidavit. At page 116 of the defendant’s second court book, the employee payslip is signed. It purports to be signed by Mr Nalbandidis. The plaintiff, in her evidence, stated that that signature was the signature of Mr Bill Nalbandidis. While Mr Nalbandidis refers to those two payslips, including the one with the signature on it, he does not state that that signature is not his, or is fraudulent. I accept the plaintiff’s evidence that Mr Nalbandidis signed the payment slip for the fortnight ending 21 February 2013 for the sum of $2,000 as the gross pay.
106 Based on the evidence before me, I accept that the plaintiff was to be paid a gross sum of $1,000 per week from approximately the beginning of the taxation year commencing 1 July 2012.
107 Ms Myers, counsel for the defendant, in her carefully argued and set out written submissions, submitted that the gross pre-injury earnings were $99 per week. This figure was based on the declared incomes to the Taxation Office and/or Centrelink in respect of the claims for Newstart allowance. The consequence of that calculation was that the 60 per cent figure the plaintiff would have as pre-injury earnings was $59 per week gross.
108 On the basis of the evidence that I have accepted, I find that the plaintiff’s pre-injury earnings for the twenty months to the time of her accepted injury in February-March of 2014 was $1,000 gross per week. The figure of $1,000 gross per week was the earnings she was capable of earning from personal exertion prior to the injury manifesting itself.
109 I accept the evidence of the plaintiff that she has attempted to obtain employment since her injury, and after some treatment from her psychologist and psychiatrist. In particular, I accept that the plaintiff, on two separate occasions, had received payments from McGregor Murtheh for the periods of 24 January 2014 and 21 March 2014. The total of the income from those periods was $400.[65] The plaintiff also attempted work at SDP Solutions Pty Ltd in 2015. For the period ending 10 July 2015, the plaintiff was paid $808.44. For the period ending 24 July 2015, the plaintiff was paid $1,433.20, and for the period ending 4 September 2015, the plaintiff was paid $187.53.[66]
[65]DCB 2, page 22
[66]DCB 2, page 22
110 I accept the plaintiff has not been able to obtain or maintain work since that time. The plaintiff gave evidence that she had extensive attempts by way of application to obtain work, but was unable to do so. I find that the plaintiff is now unable to undertake any paid employment due to her psychological and psychiatric condition arising out of her employment with Legal Guard Pty Ltd. I accept the plaintiff’s evidence as to her attempts to try and obtain employment and also her inability to do it. I also accept the evidence of her treating medical practitioners that the plaintiff is unfit for all forms of suitable employment and that that condition is now permanent, in the sense that it is for the foreseeable future.
111 In conclusion, I find that the plaintiff’s capacity to engage in any suitable employment is completely destroyed and, unfortunately for the plaintiff, will be for the foreseeable future.
Conclusion
112 I accept that the plaintiff has done her best to give an accurate and honest description of her complaints, both current and past, in respect of the psychiatric and psychological injuries that she has suffered as a result of her employment at Legal Guard Pty Ltd. I accept that her life now is isolation and a much reduced social engagement. The plaintiff was previously a very successful and capable employee and had conducted business on her own account. The plaintiff has completely lost her ability to engage in suitable employment and I find that that loss is permanent, in the sense that it is for the foreseeable future.
113 I conclude that the degree of the plaintiff’s mental illness is properly described as “severe”. I accept the plaintiff’s medical practitioners’ assessment that the plaintiff has no capacity for suitable employment, and that is for the foreseeable future. As a result, I find that the plaintiff has satisfied the test for serious injury certification in respect of a severe mental illness and severe psychological disorder which results in a total incapacity for her to engage in employment.
114 I conclude that the plaintiff is entitled to a certificate for leave to bring a cause of action for pain and suffering damages and loss of earning capacity damages against Legal Guard Pty Ltd as a result of the mental injuries she received in the course of her employment with that company.
115 I will hear the parties on costs.
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