Price v Ozstaff Holdings Pty Ltd
[2019] VCC 1429
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
WORKCOVER LIST
Case No. CI-18-00558
| RUSSELL PRICE | Plaintiff |
| v | |
| OZSTAFF HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 July 2019 | |
DATE OF JUDGMENT: | 6 September 2019 | |
CASE MAY BE CITED AS: | Price v Ozstaff Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1429 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – plaintiff seeks weekly payments of compensation along with payment of medical and like benefits – physical injury to upper body and psychiatric injury – sudden collapse by plaintiff at work – various diagnoses but probably an epileptic seizure – whether any incapacity of a physical or psychiatric nature resulted therefrom – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Zaparas Lawyers |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of a claim pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. The plaintiff is seeking weekly payments of compensation from 2 June 2017 to date and continuing, along with the payment of medical and like benefits from that date. The plaintiff also seeks interest and costs. The plaintiff alleges that he suffered injuries arising out of or in the course of his employment on 2 June 2017, when he had a sudden fall at work. He also asserts that he received actual or perceived mistreatment following the incident. The injuries alleged are to the head; the neck; the shoulders; a syncopal episode; and a psychiatric injury and/or condition. As was pointed out in the opening, in fact two claims for compensation pursuant to the Act were made. The first was dated 9 June 2017 and was rejected on 27 July of that year. A second claim was made on 31 October 2017 and was rejected firstly on 15 December of that year and secondly on 19 January 2018.
2 Mr A Saunders of Counsel appeared on behalf of the plaintiff. Mr D Churilov of Counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. Save for a face mask which was tendered by the plaintiff without objection, the balance of the evidence was documentary in nature. It was tendered by consent or without objection. The only oral evidence was that of the plaintiff. In addition, each counsel made detailed and very helpful closing addresses.
3 Mr Saunders opened the matter on the basis that, on 2 June 2017, the plaintiff had a sudden fall or collapse at work, which was either in the nature of an epileptic seizure or alternatively was a vasovagal syncope, which is, in essence a simple fainting. I would refer to Transcript (hereinafter referred to as “T”) 2. Helpfully, Mr Churilov, whilst not making what he referred to as an admission on the record, conceded that, on the balance of the weight of the evidence, it was mostly likely that the plaintiff had suffered an epileptic seizure in the course of his employment and that it would be open to me to find an injury in the primary sense. I would refer to T12 and 13. However, essentially the defendant was asserting that what occurred was a transient event that quickly resolved and provided no physical basis for any incapacity. No compensable incapacity flowed from it. The defendant would be asserting that any restrictions on employment which followed thereafter were linked to investigations of an underlying non-compensable condition. The only arguably compensable injury was the seizure and the defendant asserted that this was transient in its effect and had no lasting impact upon the plaintiff’s capacity to perform pre‑injury employment. The plaintiff was also relying to a considerable extent upon a consequential psychiatric condition which prevented him from returning to work. The defendant’s assertion was that this was based upon his fear of having another seizure, so that it was also linked to the non-compensable underlying condition and the uncertainty surrounding it.
4 On the basis of what was conceded by Mr Churilov and what is contained in the medical material which was tendered, I find that what occurred to the plaintiff on 2 June 2017 was an epileptic seizure. Henceforth it shall be referred to as “the seizure”. A possible diagnosis of cardiac arrhythmia also emerged at one stage, but as pointed out by Mr Saunders in his opening address, that potential diagnosis fell away. In any event, as indicated, I agree with the propositions put that the incident that occurred was a seizure.
5 At the outset, Mr Saunders conceded that the actual seizure itself was only causative of a very brief period of incapacity – see T15 and 16. The cause of the plaintiff’s psychiatric condition lies at the heart of the dispute. Mr Saunders asserted that, when the evidence was completed, the submission on behalf of the plaintiff would be that a significant cause of the psychiatric condition was the traumatisation resulting from the seizure and the collapse. If the defendant’s submission that the plaintiff’s psychiatric condition resulted wholly or predominantly from fear of a further seizure was accepted, the plaintiff would not be successful. Mr Saunders stated that it was not submitted that the underlying epileptic condition is work related. However, it was asserted on behalf of the plaintiff that injury in the primary sense had been suffered and that in turn was a cause of the plaintiff’s psychiatric condition. There would then be a clear entitlement.
6 I have set out the preliminary discussions at some length, because they were very helpful in isolating the issues in dispute in this somewhat unusual case and in identifying the real areas of dispute.
(b) Some non-contentious factual matters
7 The plaintiff, who is now a pensioner, has very recently turned 51 years of age. He grew up at Cowes and was educated to Form 3 level. He had some casual employments before working for a time essentially as a labourer at Nissan, until that company closed down. He then worked at Heinz, where he was a production line supplier, this involving hauling heavy baskets and the like. He was with Heinz for approximately nine years. He then worked for a company called Denso, which manufactured car parts and was affiliated with the Toyota company. The plaintiff worked on the production line for some 13 ½ years before the company closed. He then looked after his father for approximately a year, his father being terminally ill. In 2016 he commenced work with the defendant, which is a labour hire business. The defendant sent him to work on the premises of an entity called Simplot, which is a food manufacturing company of considerable size. The plaintiff worked at the Simplot cold storage plant at Pakenham on a casual basis. The working hours varied, but averaged something in the order of 32 per week. The plaintiff took whatever work was offered to him and normally worked the afternoon shift. He worked as a line supplier, filling up the production line with bags of foodstuffs such as chicken, broccoli and other vegetables. He would take this produce from the cool room to the line, where it was processed. Much of his time was spent in the cool room. A considerable amount of force was used breaking down the frozen produce by hand. On the day of the seizure, the plaintiff was working breaking down boxes by hand and tipping the contents into a skip which could be wheeled. The rate of this work was approximately 48 boxes per hour and, on the day of the seizure, the plaintiff was breaking down boxes of broccoli. The work was heavy, fast and demanding. It involved lifting a lot of heavy boxes in very cold conditions. The plaintiff wore a face mask, a hair net, thick jacket, gloves and the like. Indeed, the face mask which he wore was tendered in evidence. It resembles a surgical mask. In summary, he was heavily dressed and was working in very cold surroundings where, for example, his breath could be seen. Further, the number of layers which he was wearing made it awkward for him to move, restricting the use of his arms.
8 On the day of the seizure, he had woken at approximately 11.30am, had a light breakfast and some lunch at a shop in Pakenham. He drove to work, arriving at approximately 2.45pm. He proceeded to the cold area, where there was some delay in relation to the stock arriving. He was wearing the clothing previously described, along with gumboots. He was told to set up three tables on the production line and to assist another worker in pushing a machine called the gravy machine into position. There was a delay of approximately 40 minutes before the stock arrived. Bags of chicken had to be opened and tipped into trays. The chicken arrived in 5 kilogram bags and approximately two such bags went into a tray. At the time that this is done, the stock is frozen solid. The bags of chicken were struck on the tables in order to help break the stock up. The tray of 10 kilograms of stock was then taken to a trolley and this process was continued until approximately three trolleys were filled. The plaintiff performed this work for approximately half an hour and estimates that he had broken down well over 100 bags. One heavy aspect of the work was lifting up the tray and carrying it to the trolley, work heavy enough to make him puff.
9 I turn now to some aspects of the evidence concerning which there was not necessarily agreement or outright disagreement and my findings in relation to them. After the chicken, the plaintiff worked with the broccoli. A load was delivered on a pallet by a forklift and work was then done in the chilled kitchen. The boxes were broken down by dropping them four times and then cutting them open and tipping the contents into a skip. Each box weighed approximately 15 kilograms. The plaintiff did two boxes, then moved to the third box. It was at this point that he saw some flashing and black spots before his eyes. The next thing that he knew was that he was in an ambulance. He was informed that they were three minutes away from Casey Hospital. The plaintiff had a sore tongue and was bleeding from the mouth, apparently having bitten down on his tongue. He had a sore head and neck and was “feeling funny”. He was not sure where he was and was uncertain what was going to happen to him. He was also feeling “bad” emotionally.
10 The plaintiff asserted that apparently his locker had been cleared out and his belongings thrown in the ambulance. He felt that he could at least have been given the chance to go back and empty his locker, if his employment was being terminated. He was kept at the hospital for approximately an hour. All that he was told was that apparently he had suffered a fall or something of that order. He felt angry because no one was able to tell him clearly what had occurred to him. His sister was at the hospital with him and she took him home. He went to see his doctor, Dr Cong Phan, a couple of days later, having rested over the intervening weekend. He felt tired and angry.
11 Turning to the plaintiff’s treatment and his symptoms, in July 2017 the plaintiff commenced being seen on referral at the Austin Hospital. Various tests were performed. Apparently, without being an inpatient, he was seen there on a number of occasions over the following six months. The plaintiff asserted that, whilst various tests were performed, he was never able to get a clear answer from the doctors as to what was wrong with him. This has made him feel sick and angry, apart from his having headaches, vomiting and being tired all the time.
12 Ultimately the plaintiff was referred by Dr Phan to a psychologist, Ms Angela Kay. He has continued to see her on a regular basis. He was also referred to a psychiatrist, Dr Paul Brown, and has seen him on a regular basis. The plaintiff continues to see Dr Phan fortnightly and sees Ms Kay once every three weeks. He sees Dr Brown once a month and takes a medication called Risperidone, which I understand to be a medication used to treat such conditions as schizophrenia, bipolar disorder and the like. He takes such medication daily, along with Mirtazapine, which assists sleeping.
13 The plaintiff’s evidence was that, although he took a knock to the head, that is now all right and his sore neck lasted until March 2018, when it settled. His memory is poor, he lacks confidence and he sleeps a lot during the day. He tires a lot and has memory problems. He has an inability to concentrate and cannot even watch the television. His sleep is disturbed and he wakes in the middle of the night. He keeps recalling his collapse. This happens most nights. The plaintiff also gave evidence that he thinks about what occurred to him every day. His energy levels are down. He feels anxious, tired and, at times, angry and upset. He could not now perform his previous work. He forgets things and cannot concentrate. His capacity for work is also affected by his tiredness and his memories of what occurred to him. His nerves would also make it difficult for him to go to work.
14 The plaintiff was cross-examined concisely by Mr Churilov. The plaintiff stated that the locker to which he had been referring and which had been emptied was in fact the property of Simplot and not of the defendant. In it would be such things as his uniform and work shoes. In relation to what happened on the day of the seizure, the plaintiff agreed that the frozen chicken bags weighed approximately 5 kilograms each and not a great deal of force was required when banging them on the table. Perhaps confusingly, the plaintiff said that six or seven bags were put in each tray, but that the weight of the tray was 10 kilograms. The seizure had occurred when he was working with the third bag of broccoli. Hence, he only worked with the broccoli probably for a matter of seconds. The next thing he knew was that he was in the ambulance. He did not know that the bag containing his work clothing was in the ambulance until his sister brought it to him at the hospital. He has not asked anyone from the defendant or from Simplot questions about why his clothing was removed from the locker. In addition, someone had removed his gumboots and these had been left behind. He was simply in his socks in the ambulance. A person from the defendant called Mr Terrance Pillay was at the hospital and asked the plaintiff whether he had had any food. He did not remember seeing Dr Torzillo from the Epilepsy Clinic at the hospital, but did see a number of doctors. The plaintiff stated that, when he was woken up by a woman in the ambulance and told that he was three minutes away from Casey Hospital, he responded by saying words to the effect of “Would it be easier just to drop me at the tip”. He denied that he was the sort of person who made jokes from time to time with people.
15 Continuing with the cross-examination, at the hospital the plaintiff was told that he may have suffered a seizure due to epilepsy and was referred for further investigation. He still does not know what medical condition caused his fall. Possibilities such as epilepsy, a cardiac problem and a vasovagal syncope were put forward. He became “really anxious” because he did not know what had happened to him. He feared that he might have a seizure again in the future and did not know when that might occur. He agreed that he was scared that it might happen at home or outside his house and he was very reluctant to leave his house without a supporting person. The plaintiff agreed that this was because he did not know what the underlying condition which had caused the seizure might be. This also made him angry. He did not agree that such things as vomiting from the headaches and tiredness were connected to the fear that he had of not knowing whether a collapse might happen again. However, he was concerned that he could have an epileptic fit when walking down the street and that has isolated him in his house. He agreed that his uncertainty about his condition and the fear that this could strike at any moment made him depressed. Not knowing when or if he might have a collapse or a seizure has prevented him from working. He agreed that, for a period, restrictions had been imposed on his driving. He could not recall restrictions in relation to climbing ladders and the like. He stated that, in relation to restrictions, he could not work, operate machinery, use computers or mobile phones or the like. This was during the period of about six months when his condition was being investigated. He was cleared from restrictions on approximately 5 December 2017. Whilst initially he was unsure as to whether, physically, he could perform work of the nature that he had been performing prior to the collapse, ultimately he agreed that, physically, he could probably perform his previous duties.
16 In re-examination, the plaintiff stated that his observation in the ambulance that it would be quicker to drop him at the tip was because he “probably just felt like dying” – see T48.
The medical evidence
17 As stated, an amount of medical material was placed in evidence, although no witnesses were called. Further, the need for any detailed discussion of at least parts of the medical evidence was removed by the sensible concession, made at the outset, that it was most likely that the plaintiff had suffered an epileptic seizure.
18 In any event, the plaintiff placed in evidence three reports from Dr Phan. In his earliest report of 10 September 2017, Dr Phan set out the history obtained by him. The plaintiff had presented on 5 June 2017 with a problem involving loss of consciousness and a seizure that had occurred on 2 June. The history taken was appropriate. The plaintiff referred both to the specific incident and to the difficulties generally involved in working in the cold storage rooms. The plaintiff was shaky and apprehensive. He had flashbacks about what had occurred to him. He told Dr Phan that he felt as if he had died and come back. He was referred to a psychologist. Dr Phan expressed the opinion that the plaintiff’s employment was the most likely cause of what had occurred, and in particular the performance of the job in the cold storage area. Dr Phan further expressed the opinion that what the plaintiff had suffered was most likely a syncopal episode, followed by cerebral hypoxia, leading to a seizure. The plaintiff had suffered with a secondary adjustment disorder, with pre-dominant anxiety made worse by the perception that there had been little or no support given by his employer. Restrictions existed in relation to his activities and Dr Phan was of the view that the plaintiff currently had no capacity for any form of employment.
19 Dr Phan provided a second report dated 27 February 2018. In this report, Dr Phan set out details of the treatment which had been received by the plaintiff at the Austin Hospital. On 5 December 2017, the plaintiff had been seen for the last time at the Neurology Clinic at that hospital and was cleared to drive again. No specific diagnosis or treatment was given. The plaintiff complained of some neck pain, which had developed after the event. He was also suffering from anxiety and depression, this being described by Dr Phan as the other major and significant problem and a consequence of the collapse at work. Further, the plaintiff expressed the view that he felt abandoned by his employer after the event. The plaintiff had seen a psychiatrist and was taking antidepressant medication. Dr Phan expressed the opinion that what had occurred was most likely a syncopal episode, caused by hypotension due to being upright at work and whilst wearing restrictive clothing. In particular, Dr Phan implicated the performance of the work in the cold storage area. He thought that the plaintiff would need ongoing supportive treatment from his psychologist and psychiatrist. As at the date of this report, the plaintiff was not capable of any form of employment, because of lack of confidence, depressed mood and high anxiety level. Whether it was likely that he would have another collapse was not clear.
20 Dr Phan reported for the third time on 4 November 2018. The plaintiff’s condition had remained largely unchanged. He had had no further episodes of loss of consciousness. However, he continued to suffer with significant anxiety, nightmares and recurring morbid thoughts of potential death. He had been treated by a psychologist and a psychiatrist. In the opinion of Dr Phan, the plaintiff was unable to work in any capacity for at least the foreseeable future and would continue to need intensive psychologist and psychiatric treatment. Dr Phan expressed the opinion that the plaintiff’s employment was still material in causing his current illness and disability.
21 A discharge summary from the Casey Hospital Emergency Department, this being dated 2 June 2017, was also placed in evidence. The diagnosis appears to have been one of convulsions, epileptic/epilepsy, unspecified.
22 A letter from Dr Torzillo, Registrar at Austin Health, to the plaintiff’s general practitioner, which letter appears to have been dictated on 27 June 2017, was also placed in evidence. A detailed history is set out in this report and is consistent with the plaintiff’s evidence. It is stated that the cause of the collapse remained unclear. There were some features which suggested a cardiac arrhythmia with concussion and convulsive syncope and the differential diagnosis was of first-onset seizure. The carrying out of further tests was suggested. A further letter from Austin Health, this being dated 22 August 2017, was also placed in evidence. In this letter, it is stated that the most likely diagnosis of what had occurred was that the plaintiff suffered a convulsive vasovagal syncope with a head strike. It was also stated that perhaps what had provoked the occurrence was a Valsalva manoeuvre whilst lifting the box, followed by a loss of consciousness with a head strike, resulting in later confusion. However, other alternatives were possible. In the meantime, there was a problem in relation to the plaintiff driving and for such things as his working at heights, operating heavy machinery and the like. There was also reference to the fact that the plaintiff’s locker at work had been immediately cleared out and he had not been contacted since. It was thought that he could work within various restrictions. He was subsequently cleared to return to driving on 5 December 2017.
23 Dr Paul Brown has been the plaintiff’s treating psychiatrist. He reported on 17 July 2018. He had taken a detailed and appropriate history. He noted that the plaintiff still feared falling down in the street. He observed that the plaintiff had high anxiety with trembling, hyper-arousal, hyper-vigilance and abdominal agitation. He had a phobic anxiety in relation to work and feared meeting any of the workers with whom he had associated. He considered that he did not have a future and suffered from insomnia and fatigue. Dr Brown had treated the plaintiff by way of supportive guidance and pharmacotherapy with appropriate medications. Dr Brown also referred to the fact that the plaintiff had evidently experienced a detrimental effect on his mentation because of the conditions at work. He had developed Post-Traumatic Stress Disorder and depression, which were persisting. Dr Brown considered the plaintiff’s psychiatric condition to be consistent with the stated cause, diagnosing Post-Traumatic Stress Disorder and Major Depressive Disorder. He considered the prognosis for recovery to be very poor and thought the plaintiff to be totally and completely incapacitated for any work, a situation which would continue for the foreseeable future.
24 A report of 31 October 2018 from Ms Angela Kay, treating psychologist, was also placed in evidence by the plaintiff. The history taken by Ms Kay included that, at the time of the seizure, the plaintiff was working in a refrigerated environment in which he was required to wear gumboots, thick clothing and a surgical mask, which made it difficult for him to breathe. He had been engaged in his duties, when he began to feel dizzy and saw flashing spots. He lost consciousness and fell. He awoke in the ambulance. The plaintiff did not know what had happened or whether he was alive or dead. He also felt abandoned by his employer, his locker having been emptied of his personal belongings. He presented with significant psychological symptoms, including traumatic memories of waking in the ambulance and then finding himself in hospital. His anxiety, depression and stress were assessed to be in the extremely severe range. The plaintiff despaired about his future and became extremely agitated and anxious when the possibility of future employment was discussed. Ongoing treatment was required. The opinion of Ms Kay was that the plaintiff was suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder arising as a direct result of the traumatic work incident. The plaintiff was not fit for work and the prognosis for full recovery was extremely poor. He remained completely incapacitated and this would be the situation for the foreseeable future.
25 Associate Professor Brendan Murphy, consultant psychiatrist, appears to have briefly treated the plaintiff. A letter of 15 February 2018 from Associate Professor Murphy to Dr Phan was placed in evidence by the defendant. Essentially, he was of the view that the plaintiff had an adjustment disorder with anxious and depressed mood. He considered that it was difficult to work out the proportion of the plaintiff’s condition that was due to the actual incident, how much was due to having a fear of a serious illness and how much was due to the insurance process. The plaintiff felt that he was unsupported by his previous employer. Associate Professor Murphy expressed the view that there was an associated general anxiety disorder with poor sleep and that the plaintiff woke at night worrying about the process through which he was going. Associate Professor Murphy prescribed medication. He made a further observation concerning the effect of litigation, thinking it would be better for the plaintiff’s mental health if he did not pursue a court case, but returned to employment.
26 Dr Leon Turnbull, occupational and forensic psychiatrist, examined the plaintiff at the request of his solicitors. He reported on 20 June 2018. Dr Turnbull noted disappointment and upset on the part of the plaintiff due to the fact that he had never heard back from his employer and there had been no inquiries about his wellbeing. The plaintiff did not report any ongoing physical injuries. However, he said that his mind was stuck on the events of the day of his fall and worries that he was going to fall again. Apparently the plaintiff could not stop thinking about it. By reason of this, there was interference with his sleep, he had lost his enjoyment of life and his mood was mainly depressed. He spent much of his time worrying as to whether he would fall again. Dr Turnbull described the plaintiff as being bombarded by unwanted memories of the day in question. He considered that the plaintiff’s mood had reached pathologically depressed and anxious levels, also noting that the plaintiff found it psychologically uncomfortable to be out of his home without support. The plaintiff was disappointed in relation to the behaviour of his employer on the day. Dr Turnbull expressed the opinion that the plaintiff’s condition had progressed to the level of a Major Depressive Disorder with anxiety and fear being prominent. He thought that the plaintiff was unfit for any work. Unless there was some definitive statement as to what had occurred medically, the overall prognosis was for things to remain much the same. Dr Turnbull said that it was hard to see a viable treatment pathway to psychological recovery.
27 Dr Turnbull provided a further report to the plaintiff’s solicitors on 19 March 2019. It would not appear that he saw the plaintiff again, but he did review a considerable number of medical reports and had been provided with some information by the plaintiff’s solicitors. Dr Turnbull expressed the opinion that there were multiple reasons why the plaintiff became and remained unwell, including fear concerning his physical state and dissatisfaction with the insurance process and with his employer. Dr Turnbull stated that there was an overlap between the plaintiff’s physical fears and his concerns about what his employer allegedly did in response to his collapse. Dr Turnbull thought that the work events, even excluding the collapse, play a prominent role in the plaintiff’s current condition. He described this as forming the plaintiff’s belief that what occurred could happen again were he to return to a workplace.
28 Associate Professor Michael Jelinek, cardiologist, reported to the plaintiff’s solicitors on 27 November 2018, having seen the plaintiff on that day. A detailed history was taken. Further, the plaintiff informed Associate Professor Jelinek that he believed that the tight facemask worn at work had triggered a faint. Associate Professor Jelinek expressed the opinion that “cardiovascular syncope with a subsequent head strike and convulsion is equally possible with a first ever epileptic attack”. He also was of the view that, given the diagnostic uncertainty, the plaintiff’s employment was probably a significant contributing factor. He stated that perhaps the provoking factor had been a Valsalva manoeuvre whilst lifting a box at work on the relevant day (I understand that a Valsalva manoeuvre involves moderately forceful attempted exhalation against a closed airway – for example, by closing the mouth, pinching the nose shut and pressing out as if blowing up a balloon). Associate Professor Jelinek considered that the plaintiff was not fit for either his pre‑injury employment or alternative employment. It was difficult to determine the likely course of events.
29 Dr David Freilich, neurologist, saw the plaintiff at the request of his solicitors on 23 April 2018. Again, a consistent and detailed history was taken. Dr Freilich noted that there had been psychological issues. The plaintiff felt that he had been treated badly by his employer. He could not drive for six months and initially could not swim. He had developed depression. The neurological examination conducted by Dr Freilich was normal. Dr Freilich expressed the opinion that the plaintiff had suffered an epileptic seizure at work. He considered the plaintiff to have fully recovered physically, with no neurological or other physical symptoms. However, psychological symptoms, including depression, had occurred. Dr Freilich did not think that employment was a cause or contributing factor to the seizure. It had occurred at work, but was not due to the work. Physically the plaintiff was fit for employment and required no treatment. Dr Freilich stated that psychological issues impacting upon employability were outside his specialty.
30 Dr Freilich reported again on 18 March 2019. He had been provided with a number of medical reports, but had not seen the plaintiff again. He expressed the opinion that an epileptic seizure does involve a sudden physiological change. It results from abnormal electrical brain activity, which leads to loss of consciousness, convulsive movements and other symptoms. He thought that the available evidence indicated the plaintiff did have a seizure, rather than a vasovagal syncope or cardiac arrhythmia. Given what was said on behalf of the parties and my earlier finding that what occurred was in fact a seizure, there is no need for me to go further into the opinion of Dr Freilich. Suffice to say that primarily what had occurred was an epileptic seizure.
31 Dr Freilich reported for the third time on 13 June 2019, again without seeing the plaintiff further. The purpose of this report was to clarify some matters set out in his second report. In relation to a seizure, he described it as an episode which is triggered by a sudden discharge of abnormal electrical activity in the brain. This leads to a number of clinical consequences, such as convulsive movement, tongue biting and the like. It is a sudden physiological change in which the person suffering from it suddenly moves from being conscious to unconscious. Essentially he repeated his diagnosis of an epileptic seizure and not an episode of a syncope.
32 The defendant also had the plaintiff examined. Dr Clive Kenna, consultant in musculoskeletal pain management, saw the plaintiff at the request of the defendant on 12 July 2017, reporting on that day. Dr Kenna took a detailed history, although he does not seem to have recorded that the plaintiff awoke in the ambulance or anything to do with the plaintiff’s clothes and belongings being removed from his locker and being located either in the ambulance or at the hospital. Dr Kenna expressed the opinion that there was no work-related incident which was causative of what had occurred. Of course, the seizure had occurred only five or six weeks earlier. Whilst Dr Kenna expressed the opinion that there was no work-related incident causative of the condition or being a contributory factor in any way, he did note that the plaintiff was undergoing tests. He observed that the diagnosis was of a seizure, the cause yet to be determined. Despite this, he expressed the opinion that employment had not been a significant contributing factor to the onset of the condition. He observed that, just because an incident occurs at work, it does not mean that it is work-related. He believed the seizure to be due to a medical condition. Whether this was able to be specifically diagnosed was yet to be determined, but work had not been a contributory factor.
33 Dr Kenna provided a supplementary report of 27 July 2017 without seeing the plaintiff again. It seems that he had been given some further material in relation to the plaintiff having a haematoma. In any event, it did not cause him to alter his view, which was that the plaintiff was under investigation for a seizure which was in no way work-related.
34 Professor Timothy Entwisle, consultant psychiatrist, saw the plaintiff at the request of the defendant on 14 December 2017, reporting on the same day. In addition to the history taken, observations of interest made by Professor Entwisle include that the plaintiff was upset by the lack of contact from his employer and that he spent a lot of time at home, not venturing out much in case he had another fit. Professor Entwisle diagnosed an adjustment disorder with depressed and anxious mood. He thought that the plaintiff’s symptoms were at a sufficient level to constitute a diagnosable mental condition or illness and that this was a new condition, rather than the aggravation of pre‑existing illness. Pending clarification of the diagnosis and more aggressive treatment of the plaintiff’s depression, Professor Entwisle did not regard him as having the capacity for full-time pre‑injury duties. He required ongoing treatment and medication. In a supplementary letter of 20 December 2017, Professor Entwisle repeated that the plaintiff required more aggressive treatment with psychotropic medication. His opinion related to the plaintiff’s psychiatric condition only and not to his neurological condition.
35 Professor Entwisle reported again to the defendant on 6 September 2018, having seen the plaintiff three days earlier. He noted that the plaintiff’s physical symptoms had resolved. He was continuing to receive psychological treatment, also observing that he was too tired to do anything. He was on medication and had been referred to Dr Brown. Professor Entwisle again diagnosed an adjustment disorder with depressed and anxious mood. There had been some improvement with the consumption of psychotropic medication. Professor Entwisle expressed the opinion that the plaintiff, in essence, demonstrated little understanding of the events that had occurred. As a result of the fall at work, the plaintiff had slipped into a state of depressed and anxious mood. Professor Entwisle stated that the plaintiff’s symptoms were of mild severity and that he had the capacity to work with a different employer. He thought that the plaintiff’s current symptoms were those of illness behaviour and conviction, anger and grievance. He also thought that the prognosis was reasonable, provided treatment focussed on functional restoration, return to work, clarification of his health status and the like.
36 The defendant also organised for the plaintiff to be examined by Associate Professor Jeremy Hammond, whose rooms are at the Melbourne Hypertension Clinic. His report is dated 26 July 2018. He took a particularly detailed history, which was substantially consistent with the plaintiff’s evidence. This included the plaintiff’s concerns about the way that he was treated on his last working day and following the seizure, describing how his locker had been cleaned out and the contents thrown into the back of the ambulance. The plaintiff stated that there had been some improvement in his symptoms with the use of psychotropic medications. Associate Professor Hammond also set out a detailed analysis of the medical material that had been available to him. Whilst various diagnoses were possible, Associate Professor Hammond stated that his inclination was that the plaintiff had suffered a primary seizure leading to his collapse, with a head strike on the way down. He did not believe that there was an association between the plaintiff’s collapse/epileptic seizure and his employment. The precipitating cause remained uncertain. Associate Professor Hammond also referred to the fact the plaintiff had reported a number of psychological/psychiatric problems relating to the occurrence of the seizure. He believed that the plaintiff did have the physical capacity to perform the physical requirements of his pre‑injury duties and hours. Noting only the physical injuries, he believed that the plaintiff was capable of undertaking suitable employment. He thought that the plaintiff did have an increased risk of having a further seizure, but put that in the range of 5 to 10 per cent.
37 That concludes the summary of the medical evidence. Much of the factual basis for it is consistent with the plaintiff’s evidence.
The submissions on behalf of the parties
38 The submissions on behalf of the parties could be summarised as follows. I shall deal with them in the order in which they were advanced.
(i)The submission on behalf of the defendant
39 The submissions of Mr Churilov on behalf of the defendant could be summarised as follows.
40 It is open to the Court to find that the injury suffered by the plaintiff was an epileptic seizure, this being an injury in the primary sense by way of a sudden or identifiable physiological change. However, whatever the injury was, it was transient and did not produce any incapacity for pre‑injury employment. Any period of incapacity by reason of the physical injury was very brief. As is clear from the first report of Dr Freilich, by the time that he saw the plaintiff there were no neurological or any other physical symptoms. It would be open to the Court to find that any compensable injury was transient. The case put by the plaintiff is that his psychiatric condition or injury is composed of two factors – the collapse and the perceived mistreatment by the employer. The position of the defendant is that the psychiatric condition does not produce an incapacity for pre‑injury employment, or its contribution to any such incapacity is negligible and not compensable. The evidence which the plaintiff gave to examiners and to the Court concerning the causes of his incapacity was consistent.
41 The defendant’s submission is that the cause of the incapacity is non-compensable anxiety and depression, brought about by the lack of any precise diagnosis or explanation given to the plaintiff concerning his collapse at work. The plaintiff himself gave evidence about his “lack of knowing”. The “lack of knowing” has in turn led to an intense fear on the part of the plaintiff that he might suffer another seizure or collapse in the future in an unpredictable fashion. This has made him isolate himself and made him reluctant to venture outside his house or contemplate any return to work. He gave evidence that he was upset after the collapse because he was wondering what was going to happen to him. He admitted in cross-examination that he did not know what had caused his collapse and agreed that it made him really anxious, because he did not know what was happening to him. Answers of this sort were repeated during the plaintiff’s evidence. There were many examples of it. A striking example of this is at T46 and 47 where the plaintiff agreed that not knowing when or if he might have a collapse or seizure stopped him from working. At no time did the plaintiff give evidence that there was anything else preventing him from performing his work.
42 If the plaintiff feels tired, depressed and has sleeping difficulties, overwhelmingly the cause of such problems is the lack of diagnosis and certainty and the fear that it will happen again. It was conceded by counsel for the plaintiff in his opening that the fear of a further collapse is not a condition which gives rise to an entitlement to compensation – see T16. That such fear is the predominant cause of the plaintiff’s problems and incapacity can ultimately be gleaned from some of the medical material. Reference is made to the reports of Professor Entwisle, Dr Brown, Ms Kay and Dr Turnbull.
43 The plaintiff’s unhappiness with the defendant in relation to what occurred is a red herring. It is not a significant feature of the case. His disgruntlement, along with his reaction to his collapse and his memories of it, are not incapacitating features and make no significant contribution. It is to be remembered that the plaintiff was virtually joking when he regained consciousness in the ambulance and at one stage stated that he felt some peace within the ambulance because he thought that he had died. However, his real problem lies in his uncertainty about his underlying condition, the various tests performed and the like.
44 Further, the diagnosis of Post-Traumatic Stress Disorder should be rejected. It is not accepted by Associate Professor Murphy, Professor Entwisle or Dr Turnbull. To the extent that Dr Brown and Ms Kay diagnosed it, it should not be accepted. Sleeping difficulties affect a lot of people and are not an incapacitating feature.
45 The emptying of the plaintiff’s locker is not a matter of any importance. In response to a letter from the plaintiff’s solicitors, Dr Turnbull provided a supplementary report in which, amongst other things, he listed the plaintiff’s concerns in relation to the way he was treated by the defendant. There are five such concerns listed but there has only been evidence in relation to one of them – the emptying of his locker. Further, the locker situation is really of no moment. In his earlier report, Dr Turnbull clearly saw and recorded that the plaintiff’s main concern was his fear of recurrence of the collapse.
46 Whilst Professor Entwisle had some history of the plaintiff’s feelings of anger and hurt, he rejected the proposition that there were features of a Major Depressive Disorder. Further, he was of the opinion that the plaintiff has the capacity to work for a different employer. Therefore, Professor Entwisle is not of the view that the plaintiff is incapacitated for pre‑injury employment. Work of that nature could be performed for a different employer. Further, Dr Phan does not identify any psychiatric incapacity in his report of 10 September 2017. Associate Professor Murphy noted that the plaintiff had been given the “all clear” from the neurologist whom he had seen. He could drive again and, in the opinion of Associate Professor Murphy, could presumably work again. Clearly he was of the view that there was no psychiatric incapacity for employment, and this coincides with Dr Phan’s opinion at that time. Any incapacity had not even commenced as of February 2018.
47 Finally, if the Court was of the view there was a compensable injury, the likely situation is that the medical expenses involved were adequate, appropriate or necessary. The central feature of the case concerns incapacity for pre‑injury employment.
(ii)The submissions on behalf of the plaintiff
48 The submissions of Mr Saunders on behalf of the plaintiff could be summarised as follows.
49 The better view is that the plaintiff’s collapse was caused by an epileptic seizure. As a consequence of this and of his perception of his treatment following his collapse, he developed a significant psychiatric condition. In order to succeed with his case, the plaintiff must establish that his collapse constituted a compensable injury; that the claimed psychiatric condition resulted from that compensable injury; and that the claimed incapacity has in turn resulted from it.
50 The Court should find that the plaintiff suffered an epileptic seizure and that this was an injury simpliciter. If so, it would be a compensable injury – reference is made to Hegedis v Carlton and United Breweries (2004) 4 VR 296. Reliance is place upon the opinion of Dr Freilich as to the pathophysiology of an epileptic seizure. In addition to Hegedis, reliance is placed upon a considerable number of decisions of the Court of Appeal and the High Court.
51 The Court should then find that the claimed psychiatric condition results in a substantial way from the compensable injury, bearing in mind the traumatic effect of the collapse on the plaintiff, along with his perception of mistreatment, although it is conceded that his fear of further seizure or collapse is also at least a cause. In addition to the plaintiff’s evidence, reliance is placed upon the opinions of Dr Phan, Dr Brown, Dr Turnbull and Ms Kay. Their opinions should be preferred to that of Professor Entwisle. The opinions of those treating the plaintiff should be preferred to someone who has examined the plaintiff only twice, and particularly when such plaintiff has a tendency to understate matters. Further, the opinion of Professor Entwisle is against the weight of the evidence.
52 The Court should find that the plaintiff has no current work capacity as a result of his psychiatric condition. Again, apart from the plaintiff’s evidence on this issue (which was, in effect, unchallenged), reliance is again placed upon the same medical witnesses, three of whom have treated the plaintiff. For the same reasons as previously stated, their view should be preferred to the opinion of Professor Entwisle. Further, the Court should find that the incapacity results from that component of the plaintiff’s psychiatric condition that is referrable to the trauma associated with his collapse.
53 The above is a summary of the written submissions of Mr Saunders. He expanded upon them in his closing address. He argued that the evidence of the plaintiff was of importance, because the focus of the case was on the question of what caused his psychiatric condition. It is the plaintiff’s case that it was the trauma of what happened on the day, including the loss of consciousness and the waking up in an ambulance. Apart from the frank and honest manner in which the plaintiff gave his evidence, he gave it in an understated fashion. He admitted that fear of a further collapse, whatever the cause might be, was in turn at least a cause of his psychiatric problems. He also conceded that the physical injuries sustained in the fall were and are not incapacitating. It is also pointed out that the plaintiff’s evidence as to his condition and the extent of his disability was not challenged in cross-examination.
54 At the time of his collapse, the plaintiff bit his tongue and was seen to have quite significant convulsions. It is submitted that it was an injury in the primary sense and reference is made to the evidence of Dr Freilich and to the decision in Hegedis.
55 Reference is also made to the decision of his Honour Judge Coish in Vitiratos v Victorian WorkCover Authority [2003] VCC 21. In that case, his Honour determined that an epileptic seizure constituted an injury in the primary sense. In the present case, the plaintiff’s distress is clearly referable to the collapse. Uncertainty as to what had happened is directly referable to the occurrence of the incident. Not knowing what in fact happened to him on the day is part of the trauma. Pathological fear of a recurrence of a compensable injury would in itself be compensable. The compensable injury was a material cause of the secondary psychiatric condition.
56 The plaintiff has suffered flashbacks of the incident. That is clear evidence of a link between the psychiatric condition and the trauma. The plaintiff has told examiners such as Dr Brown of the fact that memories of waking in the ambulance and finding himself in hospital come back to him. Similarly, the plaintiff waking in the night with intrusive memories is a link to what happened on the day.
57 The evidence of the plaintiff and of Drs Phan, Brown and Turnbull, along with that of Ms Kay, establishes that, at least for the present, he has no work capacity. Those opinions should be preferred to that of Professor Entwisle. Further, it is the plaintiff’s unchallenged evidence that he is unable to work. Reference is also made to the diagnosis of Dr Turnbull, namely that the plaintiff suffers from a Major Depressive Disorder with anxiety and fear being prominent. He refers to the plaintiff being bombarded by unwanted memories of the day on which he lost consciousness. When this happens, he becomes distracted and cannot focus.
58 In a brief reply, Mr Churilov pointed out that the case was one of “pre 130 weeks” and that the only question is whether there is an incapacity for pre‑injury employment. Whether there is incapacity for suitable employment is a further step, which is not an issue which falls for consideration.
Ruling
59 I am of the view that the plaintiff has discharged the burden of proof. I am satisfied that he suffered an injury in the course of his employment; that a consequence of the injury suffered is that he has developed a psychological or psychiatric condition; and that such condition renders him incapacitated for employment, whether it be pre-injury employment, all employment or suitable employment. I have come to that conclusion for the following reasons.
60 Firstly, as I have previously indicated, I find that the injury suffered by the plaintiff on 2 June 2017 was an epileptic seizure. There was really very little dispute concerning this.
61 Secondly, it occurred at the plaintiff’s workplace and whilst he was performing his duties in refrigerated surroundings. I would refer to what was said by Ashley J in Hegedis Ashley J, as he then was, stated that the introduction of the adjective “significant” in paragraphs (b) and (c) of the definition of “injury” did not change that definition so far as injury in the primary sense was concerned.
62 In Vitiratos, his Honour Judge Coish was dealing with the case of a plaintiff who suffered an epileptic seizure at her workplace. His Honour found that what had occurred was a physiological change in the mechanism of the brain resulting in an epileptic seizure, which involved convulsions and the plaintiff falling to the ground. In so doing, she injured her left shoulder. A period of incapacity followed. His Honour referred to various of the leading cases, including a reference by Ashley J in Hegedis to the fact that the reference to “physical injury” comprehended not only injury by trauma in the ordinary sense, but internal injury of the kind illustrated in a number of leading cases. These included such matters as the sudden rupture of blood vessels, the rupture of a cerebral aneurism, a stroke and the like. His Honour found that the seizure, followed by the fall to the floor, suffered by the plaintiff was the result of a dramatic and sudden physiological change occurring in the plaintiff’s brain. He was satisfied that the plaintiff suffered internal injury involving such a sudden physiological change whilst at work on the relevant day. There are a number of parallels with the situation in the case before me.
63 Returning to the present case, I accept the opinion of Dr David Freilich, who is a neurologist. He expressed the opinion that the plaintiff had suffered an epileptic seizure on 2 June 2017. He also expressed the opinion that an epileptic seizure does involve a sudden physiological change. It results from abnormal electrical brain activity, which leads to loss of consciousness, convulsive movements and other symptoms. I accept this. Accordingly, and bearing in mind what was said in Hegedis and other cases, including the decision of Judge Coish in Vitiratos, I am of the view that the plaintiff suffered injury in the primary sense. To some extent, this was not vigorously contested by the defendant – see, for example, T56.
64 I also find that a psychiatric or psychological injury or condition resulted from the injury in the primary sense. I accept that the plaintiff has suffered from Post-Traumatic Stress Disorder and depression. That is the view of those treating the plaintiff and they are virtually unanimous in coming to that conclusion. It also seems to be not far removed from the diagnosis of Dr Turnbull of a Major Depressive Disorder with anxiety. In any event, it is a diagnosis made by those practitioners who have had close and repeated contact with the plaintiff and it is one which I accept.
65 Dr Phan, in his report of 4 November 2018, has stated that the plaintiff has continued to suffer with significant anxiety, nightmares and recurring morbid thoughts of potential death. Dr Phan also stated that the biggest hurdle for the plaintiff in relation to a return to the workforce is that of his mental health state and severe anxiety level. He referred to a working diagnosis of a Post-Traumatic Stress Disorder. The plaintiff’s treating psychiatrist has been Dr Paul Brown, who also diagnosed Post-Traumatic Stress Disorder and depression. His report is a little confusing, as he also refers to the effects of working in very cold conditions. The plaintiff’s treating psychologist is Ms Angela Kay. Her diagnosis was that the plaintiff is suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder arising as a direct result of the traumatic incident at work. Amongst other things, the plaintiff had told Ms Kay that he experiences frequent traumatic memories of waking in the ambulance and then finding himself in hospital. He was also afraid of “dying again”.
66 Dr Leon Turnbull, consultant psychiatrist, saw the plaintiff at the request of his solicitors. He diagnosed a Major Depressive Disorder with anxiety and fear being prominent. Certainly Dr Turnbull also referred to the plaintiff’s fear of a recurrence of the collapse. However, he also referred to an overlap between the plaintiff’s physical fears and his concerns about what his employer did at the time. The opinion of Dr Turnbull could be described as somewhat ambivalent, but, in any event, I prefer the opinions of those who know the plaintiff well and have treated him. My opinion is much the same in relation to the views expressed by Professor Entwisle, consultant psychiatrist, examining on behalf of the defendant. The diagnosis given by Professor Entwisle in his earliest report of 14 December 2017 was of an adjustment disorder with depressed and anxious mood, being a new condition and not an aggravation of a pre‑existing illness. More aggressive management of the plaintiff’s depressed mood was suggested. In a brief supplementary report, he referred to the plaintiff as being quite depressed and deconditioned. I note that, in his report of 6 September 2018, Professor Entwisle referred to the plaintiff as being a man of somewhat vulnerable disposition who demonstrated little understanding or comprehension of the relevant events. Of course, the defendant must take the plaintiff as it finds him. Further, Professor Entwisle has also stated the following:
“… Mr Price has not suffered an injury and on that basis it would follow that his employment is not a significant contributing factor to his mental injury”.
67 With all due respect, it is not part of Professor Entwisle’s role to express an opinion as to whether or not the plaintiff has suffered an injury within the meaning of the Act. As stated above, I find that he has suffered such an injury. In any event, I note that Dr Hammond stated as follows:
“Although it is not possible to be certain, my inclination is that Mr Price suffered a primary seizure (“first seizure”), leading to collapse, with a head strike on the way down.”
68 He also made a subsequent reference to: “Noting only the physical injuries, which occurred during the course of employment …”.
69 Dr Hammond seems to me clearly to have reached the conclusion that the plaintiff did suffer an injury. He also noted that the plaintiff’s current complaints “relate to anxiety concerning the event and concerning his health in general, in addition to depression”.
70 In short, I reject the opinion of Professor Entwisle and prefer the opinions of those treating the plaintiff.
71 Further, if it is not already clear, I am satisfied that there is a significant link between the plaintiff’s seizure and the events that immediately followed it and his psychiatric condition. I am also satisfied that it is more than a condition which has arisen because of the plaintiff’s fear of a recurrence. That may form part of his apprehension from time to time. However, I would also point out the following. The treating psychiatrist, Dr Brown, has listed the features of the plaintiff’s mental state. These include traumatic memories of awaking in the ambulance and then being at the hospital; high anxiety with hyper-arousal, hyper-vigilance and the like; a phobic anxiety which extended beyond the fear that something else would happen if the plaintiff returned to work, but also includes anxiety concerning shame and the fear of “bumping into” one of his previous co-workers; a loss of interest in everything and a feeling of hopelessness; and insomnia with intrusive memories. Dr Phan has referred to the plaintiff suffering from a secondary adjustment disorder with pre-dominant anxiety. In his most recent report, Dr Phan has referred to the plaintiff continuing to suffer with significant anxiety, nightmares and recurring morbid thoughts of potential death. This seems to me to be far beyond a comparatively simple fear that there might be another attack. To the treating psychologist, Ms Kay, the plaintiff spoke of experiencing frequent traumatic memories of waking in the ambulance and then finding himself in hospital. His sleep was frequently disturbed by intrusive memories and dreams associated with his experience. The perceived lack of concern shown by his employers has also played a role in the plaintiff’s thoughts and anxiety. In short, I am satisfied that the plaintiff has had a psychiatric or psychological reaction to the seizure and that it is a consequence of the compensable injury that he suffered. I am of the view that it extends well beyond fear of a recurrence of a collapse. It is a psychiatric or psychological consequence of the physical injury, directly related to it, and seems to me to be compensable.
72 I have come to the above conclusion whilst leaving to one side the question of the plaintiff’s fear of a recurrence of the event. In the opening discussion, Mr Saunders did concede that, if what the plaintiff is suffering was fear of a further collapse, there would be no entitlement. Whilst it would depend upon the circumstances, I am not totally convinced of that. If a worker suffered a myocardial infarction and then from a secondary psychiatric condition based upon his fear of having another (and possibly fatal) infarct, would such secondary psychiatric condition be, ipso facto, not compensable? In the present case, the plaintiff suffered a physical injury. Question marks hang over its diagnosis, although I have been able to reach a conclusion in this judgment. If the plaintiff suffers from a psychiatrically or psychologically based incapacity because of his recollection of the first incident and the fear that the same might occur again, possibly with fatal results, there seems to me to be at least an argument that such a condition is consequential upon the physical injury and could be taken into account on the issue of incapacity. However, that is not the way in which this case was argued on behalf of the plaintiff and, in any event, I find that the whole circumstances of the seizure and its aftermath have been productive of an incapacitating mental condition.
73 In summary, I am satisfied that the plaintiff suffered a collapse and resultant injury whilst in the course of his employment. A consequence of that physical injury has been the development of a mental condition or injury consequent upon it and directly related to it. That has in turn caused the plaintiff to be totally incapacitated for both his pre‑injury employment and for any other employment.
Conclusion
74 The plaintiff is entitled to weekly payments of compensation in accordance with law from 2 June 2017 and continuing. He is also entitled to payment of medical and like benefits in accordance with law. I shall hear the parties as to any ancillary orders that are required.
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