Rawlings v Victorian YMCA Community Programming Pty Ltd
[2014] VCC 2003
•17 December 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00054
| TERRI-ANN RAWLINGS | Plaintiff |
| v | |
| VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| ALLIANZ WORKERS’ COMPENSATION (VICTORIA) LTD | Third Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10, 11, 12, 13, 14 and 18 June 2014 | |
DATE OF JUDGMENT: | 17 December 2014 | |
CASE MAY BE CITED AS: | Rawlings v Victorian YMCA Community Programming Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2003 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – Major Depressive Disorder – Pain Disorder – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(c); Transport Accident Act 1986 s93(17)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis & Ors [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dordev v Cowan [2006] VSCA 254; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Judgment:Leave granted to the plaintiff to bring proceedings to recover damages for injuries suffered over the course of her employment with the defendant after March 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr A E A Macnab | Messrs Petersons |
| For the Defendants | Mr R Meldrum QC with Ms G-J Cooper | Wisewoulds |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the first defendant on 1 March 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The application was opened on the basis that the application relied upon paragraphs (a) and (c) of the definition of “serious injury” under s134AB(37) of the Act. At the commencement of final submissions, counsel for the plaintiff informed the Court that the plaintiff would be relying on paragraph (c) only. The mental or behavioural disturbance relied upon in respect to s134AB(37)(c) is a Major Depressive Disorder and a Pain Disorder.
6 The plaintiff relied upon three affidavits sworn by the plaintiff on 19 May 2011, 10 November 2011 and 3 June 2014. The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to the evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the first defendant;[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairments of her mental and behavioural disturbance in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”;[4]
(d)the judgment of the Court of Appeal and Mobilio v Balliotis & Ors[5] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[6] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”;[7]
(e)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe” where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act;[8]
(f)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;[9]
(g)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[10]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
[5][1998] 3 VR 833
[6](1995) 21 MVR 314
[7](Supra) at 846
[8]Supra. See also Phillips JA at 858 and Charles JA at 860-861 to similar effect
[9]Section 134AB(38)(h) of the Act
[10]Section 134AB(38)(i) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[11]
[11]Section134AB(19)(b) and 38(e) of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[12]
[12]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[13] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[14]
[13]Section 134AB(38)(e)(ii) of the Act
[14]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[15]
[15]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of her mental and behavioural disturbance suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[16]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[17]
[16][2009] VSCA 181
[17](Supra) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[18]
[18]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious” and “severe”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[19]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[20]
[19]Section 134AB(38)(j) of the Act
[20] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
Issues
16 The issues raised by the defendant are as follows:
· First, the plaintiff is not a credible witness, and her evidence ought not be accepted.
· Second, she is not suffering from a permanent severe mental or permanent severe behavioural disturbance or disorder, as a result of the claimed injuries.
· Third, the plaintiff has not suffered a loss of earning capacity of 40 per cent or more as a result of the claimed injuries.
The Plaintiff’s medical reports
Western Hospital
17 In August 2009, Professor Brand, medical administrator, reported that the plaintiff was seen at the hospital in June 2008 after she had slipped over and injured her right knee on 1 March 2008. The plaintiff complained of her left wrist. X-rays were performed which were normal. A bone scan showed a little bit of heat in the ulnar-sided carpal bones but no fracture was shown on the scan. The plaintiff presented with a swollen, puffy forearm and wrist; swollen, puffy hand and fingers, and difficulty in flexing or making a fist. She was referred for a ganglion block or the administration of some neural stabilising medications.
18 On 17 July 2008, the plaintiff was seen by a specialist in the Chronic Pain Management Clinic and she was diagnosed with Chronic Regional Pain Syndrome of her left upper limb. She provided a history, including cholecystectomy, appendectomy and three Caesarean sections. She had a degree of obesity and she gave a long history of Depression. She was treated on 2 October and 4 December 2008 and seen again in April and July 2009.
Dr M Gilani, Wyndham Vale Health Care
19 In October 2008, Dr Gilani, general practitioner, confirmed the plaintiff presented on 3 March 2008 complaining of an injured wrist, swollen right knee and injured buttock as a result of a fall at a work function. Investigations comprising x‑rays, a CT scan of the left hand and wrist, an ultrasound of the left hand and wrist and a localised bone scan were performed. Although the injuries appeared to be of a minor nature, on clinical grounds, the symptoms, including pain and reduced mobility of the right knee and left wrist, caused pain and distress.
20 The plaintiff was referred to an orthopaedic surgeon, Ms Anita Boekstiner. Ms Boekstiner diagnosed a causalgia or Chronic Regional Pain Syndrome. The plaintiff was referred to the Pain Clinic at the Western Hospital, where she received injections to the neck. In October 2008, Dr Gilani said there had been no significant progress with the wrist injury, despite the intervention of the Pain Clinic. The plaintiff developed neurological symptoms in the form of an involuntary muscular spasm in her fingers. Further denervation injections were planned for late in November 2008.
21 In July 2009, Dr Gilani reported that the plaintiff had been treated at the Clinic since 2002. The plaintiff had been treated for a variety of medical issues, most significantly stress and anxiety problems and issues with obesity. Dr Gilani recorded that the plaintiff attended on no less than twenty-five occasions in the twelve months prior to March 2008.
22 The plaintiff reported a fall in March 2008 which resulted in a right knee and left wrist injury. The left wrist problem was diagnosed as causalgia. Despite intervention of the specialist in pain management at the Western Hospital, there had been little progress, the injury was not stable and it continued to have a significant physical and psychological impact on the plaintiff.
23 In October 2009, Dr Gilani reported that cases of improvement in causalgia have been noted, but it is considered that the longer the symptoms exist, the less likelihood of improvement. As the plaintiff had the problem since the middle of 2008, this suggested a poor outcome.
24 In July 2010, Dr Gilani confirmed the plaintiff was suffering Chronic Regional Pain Syndrome involving the left wrist, with symptoms in the left arm. He said she had significant depression, for which she was taking medication. The depression was an adverse influence on her overall outlook and motivation to participate in exercises. He said she had a history of anxiety-depression prior to the injury, but the condition has notably worsened since the injury.
Dr Ailina Ismail, Hampstead Drive Medical Centre
25 In September 2012, Dr Ismail, general practitioner, confirmed the plaintiff was receiving psychological counselling to help deal with her depression which is secondary to her chronic pain and other issues related to her work injury.
26 In June 2014, Dr Ismail diagnosed a Major Depressive Disorder and generalised Anxiety as a result of her injury at work on 1 March 2008. She considered the injury sustained on 1 March 2008 is a material contributing factor to her current psychiatric condition.
27 Dr Ismail considered that the plaintiff’s psychological/psychiatric injury may preclude her from performing her pre-injury employment, but thought she could perform suitable employment. She opined that the plaintiff had a capacity for light clerical duties, gradually building up from four hours per week, with regular review.[21] She said the plaintiff’s medication could cause drowsiness and impact on her capacity to undertake suitable work. She was unsure whether the psychological/psychiatric injury was likely to preclude or restrict the plaintiff in relation to her social, domestic and recreational activities for the future. She said, in the future, the plaintiff will require psychotherapy and regular psychiatric review. She was uncertain as to whether the plaintiff’s condition was permanent. I was informed by counsel for the plaintiff that Dr Ismail viewed the surveillance of 15 August 2013.
[21]PCB 104K
Ms Kay Frankcom
28 In June 2011, Ms Frankcom, clinical psychologist, confirmed that she treated the plaintiff on referral from the plaintiff’s general practitioner and her pain specialist, Dr Peter Courtney. She treated the plaintiff on eleven occasions. Ms Frankcom said her treating doctors reported the plaintiff was suffering from Complex Regional Pain Syndrome. Ms Frankcom said the plaintiff was suffering from a Major Depressive Disorder and Pain Disorder. Ms Frankcom said the plaintiff did not have a work capacity due to her psychological state. She said the plaintiff required further psychological treatment and she would recommend twenty sessions of treatment.
29 In December 2013, Ms Frankcom confirmed she last saw the plaintiff in May 2013. She was asked to review the surveillance material dated 15 and 16 August 2013. She previously diagnosed the plaintiff with a Chronic Adjustment Disorder with Depressed Mood and a Pain Disorder. Ms Frankcom noted that surveillance footage showed the plaintiff attending a hotel, eating lunch and playing the pokies over an afternoon. The surveillance material did not particularly contradict Ms Frankcom’s view of the plaintiff.
Ms Boekstiner
30 In June 2008, Ms Boekstiner, orthopaedic surgeon, confirmed that she referred the plaintiff to Dr Courtney, anaesthesiologist, for treatment. In February 2011, she reported to the plaintiff’s general practitioner that the plaintiff had made amazing progress psychologically and been able to control her pain as a result of attending the Pain Management Clinic. She said the plaintiff had a severe Complex Regional Pain Syndrome.
31 In March 2011, Ms Boekstiner said the plaintiff required physiotherapy.
32 In October 2012, Ms Boekstiner reported to the plaintiff’s legal practitioners it was her view the plaintiff’s injury, when she fell on 1 March 2008, contributed to her injuries. She reported that the plaintiff was unable to use her left arm for pulling or lifting. As the plaintiff was using her right arm repeatedly, there was a risk she would develop an overuse injury. At that time, she was unable to perform overhead activities with the left arm. She said the plaintiff is required to take heavy medications because of her chronic pain, which would restrict her job opportunities. She said the prognosis for her left arm was poor.
33 In respect to the plaintiff’s right leg, there was only moderate cartilage damage, and the weakness has improved with physiotherapy which needs to be constant.
Dr Peter Courtney
34 Dr Courtney, anaesthesia and pain medicine specialist, confirmed that he treated the plaintiff on referral from her general practitioner in May 2010. He diagnosed a Complex Regional Pain Syndrome and recommended ketamine infusion. In April 2011, Dr Courtney reported that the plaintiff’s initial injury led to a chronic pain state, which required treatment with a variety of medications including narcotics. Many of the drugs caused an increase in dental caries. He said the plaintiff developed a Chronic Pain Syndrome and it was very common for patients to have significant depression.
35 Dr Courtney noted the plaintiff’s significant weight gain and said it was critical that she lose weight to try to reverse the abnormalities of glucose tolerance.
Mr Clive Jones
36 In October 2008, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ insurer. It was his view the plaintiff developed a Regional Pain Syndrome (Reflex Dystrophy). He said the condition is treated by sympathetic blockades using injections and Gabapentin, which the plaintiff was unable to afford. He said the prognosis for the condition is reserved and recovery is generally slow over a period of some years. He said the plaintiff should be reviewed by a psychiatrist as there were significant levels of what he thought to be depression and anxiety. It was his view the fall appeared to be a contributing factor to the plaintiff’s current condition. He said she had limited use of her left arm, but he thought she could possibly work in some sort of administrative tasks using her normal right arm, while her left arm improves. He said her work capacity is significantly reduced.
37 In May 2009, Mr Jones responded to the defendant’s solicitor after examining the plaintiff in March 2009. He said the plaintiff had clear evidence of a Regional Pain Syndrome or reflex dystrophy affecting her left hand. He did not believe she was totally incapacitated for work, and said she had a work capacity in clerical and similar tasks. He said she did not have unrestricted use of her left arm and hand. He said it was difficult to predict what the outcome will be following her injury.
Dr Peter Blombery
38 In October 2010, Dr Blombery, vascular physician, diagnosed the plaintiff as suffering Complex Regional Pain Syndrome Type 1 affecting the left arm, complicating lacerations. He accepted her injury was work related.
39 In relation to employment, Dr Blombery said the physical injuries of the left hand and wrist, and right knee, limited her ability to undertake activities with prolonged walking, pushing or pulling, lifting or prolonged use of the left hand and arm. This would continue for the foreseeable future. He thought she was unfit for pre-injury duties from the physical perspective. He said, taking into account her incapacity, age, education, skills and work experience, it was his opinion that she is essentially unfit for suitable employment. He said she would require a multidisciplinary therapy for chronic pain, including the use of analgesics, antidepressant and anticonvulsant medications, together with physiotherapy, occupational therapy and psychological support.
Mr Kendall Francis
40 In April 2011, Mr Kendall Francis, surgeon, examined the plaintiff at the request of the defendants’ insurer. Mr Kendall Francis said the plaintiff’s current treatment was inappropriate and required re-assessment. He described the medications the plaintiff was being prescribed as “awesome”. It was his view that spinal cord stimulation may improve the plaintiff’s condition. He recommended a few sessions with a dietician may be worthwhile, but a prolonged performance would not assist the plaintiff as the dietician can only instruct rather than treat. He recommended weight loss, psychological input to stimulate the plaintiff to manage the situation herself, and a return to physiotherapy for ten to twelve sessions.
41 Mr Kendall Francis was provided with the surveillance activity report of 14 April and 17 April 2010 but no films were seen. The report mentioned the plaintiff using her left hand more than she could on the day she was seen by Mr Kendall Francis, being 14 April 2011. Likewise, the description of walking up and down a steep embankment would have been hard for her to achieve, judged on her walking ability on the day of his consultation. He said the plaintiff would be considered to have deteriorated in the succeeding years since the surveillance report.
Dr David Ho
42 In January 2010, Dr Ho, occupational health consultant, examined the plaintiff at the request of the defendants’ insurer. Dr Ho opined that the plaintiff should be encouraged to undertake regular exercises and use her left arm to ensure her ongoing recovery. She should avoid excessive physical therapy, and should progress to a self-managed exercise program to encourage use of her left hand and arm. From a physical capacity, he believed the plaintiff had a capacity to return to work on selected duties, with avoidance of excessive and heavy use of her left arm. He suggested a graduated return to work plan, which he thought would be therapeutic and will distract her from her pain. He said her prognosis in relation to her Chronic Pain Syndrome is not favourable.
43 Dr Ho reviewed a copy of a recent initial assessment report from Work Focus Australia dated 21 December 2009, a surveillance investigation report from Lyons Wood Investigation Services dated 22 April 2010, and a copy of the position description of the plaintiff’s pre-injury duties with the first defendant. He noted the plaintiff’s observed physical capability (in particular the elevation of her arm to shield her eyes from sun glare at a football match and the use of her left hand to hold a drink cup), which confirmed his opinion from his physical examination, that the plaintiff had better capability than she wanted him to believe.
44 Dr Ho thought there were psychosocial factors contributing to her current alleged ongoing symptoms in her left arm and right knee, and the voluntary restriction of movements in her left arm during the physical examination. He said the observed use of the left arm during a football match would indicate that she has good capability with her left arm, in contrast to the voluntary restriction of movements in that arm during formal physical examination. He concluded the plaintiff was fit for normal unrestricted duties and noted that she in fact did return to normal duties for a period of eight months following her injury.
Dr Dush Shan
45 In April 2009, Dr Dush Shan, psychiatrist, medically examined the plaintiff at the request of the defendants’ solicitor. He reported that the plaintiff had a history of Chronic Depression since onset, with a post-natal episode several years ago. She had been taking the antidepressants, Lexapro and Alprazolam, ever since. These medications had not increased since her present injury. He diagnosed a Mild Adjustment Disorder with Mixed Depression and Anxiety relevant to the physical injury. He noted there is a pre-existing diagnosis of Dysthymic Disorder that was not aggravated by the physical injury.
46 Dr Shan said the plaintiff’s psychological symptoms do not constitute an incapacity for pre-injury duties or activities of daily living. He noted the plaintiff was mentally competent to drive herself one-handed for the examination. He said the plaintiff did not report any worsening or improvement of her condition since ceasing work. She warranted a pre-existing diagnosis of Chronic Dysthymic Disorder. He said, from the solely psychiatric view, the plaintiff is fit for pre-injury duties. He said no particular psychotropic medication or treatment had been required for her psychiatric or psychological aggravation. He said it was inevitable that the plaintiff will need psychological counselling support if she continues to complain of chronic pain.
47 In March 2010, Dr Shan diagnosed an Adjustment Disorder with Mixed Depression and Anxiety, a condition developed as a consequence of, or secondary to, the physical injury. He said the condition is ongoing, regardless of opinions that employment no longer contributes to the accepted physical injury. He said the plaintiff’s pre-existing condition of Dysthymic Disorder was being treated with Lexapro and Alprazolam, and was not aggravated. The plaintiff reported there had been no change to her regular medication of Lexapro, and she was taking the anti-anxiety medication, Kalma, even less.[22] He thought she needed psychological counselling and suggested up to fifteen sessions per twelve months.
[22]PCB 232
48 In May 2010, Dr Shan reviewed a surveillance activity report, but he did not have the DVD footage. He noted that the plaintiff was engaged in a range of activities, including operating a motor vehicle. He said the surveillance report was consistent with his psychiatric examination of the plaintiff and its conclusion. The plaintiff did not report being unable to engage in the activities noted in the surveillance report from a psychiatric viewpoint.
Dr Michael Epstein
49 In September 2012, Dr Epstein, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor. He was more impressed by the severity of her level of depression. He diagnosed a Major Depressive Disorder of moderate severity. He said she had some Panic Disorder with agoraphobia symptoms. His impression was that her depressive disorder now arose solely from the effects of her fall at work. He said there were other factors in her life that have caused some distress, but they do not contribute to her current situation. Her prognosis for improvement remains poor. She cannot return to pre-injury or suitable employment.
50 In December 2013, Dr Epstein said the plaintiff had a Major Depressive Disorder and has panic attacks. She has not received psychological treatment recently, has become dependent on opiates and has a Substance Use Disorder with opiates. He viewed the surveillance footage taken at the hotel. He said whatever fears she has about being away from home may be a little less severe than she would indicate.
51 Dr Epstein said the plaintiff’s prognosis is poor. From a psychiatric point of view, she is unfit for any employment, and cannot return to her pre-injury employment or any other employment because of her mental state alone. He said her psychiatric state does interfere with her work capacity, her social and recreational enjoyment and with her relationships. He said there are significant other factors troubling her including bilateral cataracts, and her daughter’s physical and mental health problems. These are probably contributing to her level of distress.
Dr Wendy R Triggs
52 In March 2011, Dr Triggs, psychiatrist, examined the plaintiff at the request of the defendants’ insurer. She diagnosed a Chronic Adjustment Disorder with Depressed Mood as a result of a work-related injury. She said the plaintiff would benefit from counselling to help her reduce her weight. She said the plaintiff has a pre-existing predisposition to lower mood, having been on antidepressants in the past, and has a history of sexual abuse. She said the plaintiff’s treatment was appropriate. Her activities of daily living would be more difficult without treatment.
Medical Panel
53 On 20 February 2012, the Medical Panel concluded that the plaintiff had a substantially resolved Complex Regional Pain Syndrome Type 1 of the left arm. The Panel viewed the surveillance DVD in the presence of the plaintiff. The Panel noted the plaintiff, while watching a football match, held her left arm up to shade her eyes from the sun. She was noted to lift a cup with her left hand to drink. The plaintiff told the Panel that these activities took place on the day following physiotherapy, when her range of motion increased for a short period. Apart from the above, the Panel considered that in general, the actions of the plaintiff were not inconsistent with her presentation on examination. She had no current condition of her right knee relevant to the claimed injury.
54 The Panel conducted a psychiatric assessment. The Panel was also of the opinion that the plaintiff is currently suffering from an exacerbation of a pre-existing chronic Dysthymia, and also from a Chronic Pain Disorder associated with both psychological factors and a general medical condition which have arisen as a consequence of the claimed left wrist/arm and right knee injuries.
55 The Panel relied on the reports of Ms Frankcom, treating psychologist, dated 28 June 2011, and Dr Triggs, psychiatrist, dated 31 March 2011.
56 The Panel noted the reports of Dr Dush Shan of 23 April 2009 and 3 March 2010 in which he concluded the plaintiff was suffering from an Adjustment Disorder with Mixed Depression and Anxiety, and a pre-existing Dysthymic Disorder which was not aggravated, and noted the presence of chronic pain. The Panel came to a different conclusion to that of Dr Shan and considered the plaintiff’s condition was better characterised by the above diagnostic categories based upon its own assessment.
The Panel disagreed with Dr Shan’s opinion that the plaintiff’s psychiatric condition “did not contribute to incapacity for work”. The Panel also noted the supplementary report by Dr Shan of 21 May 2010 in which he concluded that the 130-week vocational report identified job options “suitable if they are considered to be within the plaintiff’s physical limitations”.
57 It was the Panel’s opinion that the plaintiff’s psychiatric condition is such that the plaintiff is incapable of performing her pre-injury duties and has no current work capacity; this is likely to continue indefinitely. It was the Panel’s opinion that home help services of two hours per fortnight are appropriate and adequate.
The Victorian Rehabilitation Centre: Pain Management Unit
58 In November 2012, the Victorian Rehabilitation Centre Pain Management Unit conducted a multidisciplinary assessment report. The psychologist, Ms Newbigin, said, in summary, the plaintiff was experiencing significant depressive symptoms which are likely to impact on her ability to implement pain management strategies. These symptoms need to be addressed to ensure the plaintiff can participate optimally in a pain management program. The plaintiff would benefit from psychiatric review, as her current antidepressant medication does not appear to be particularly effective.
59 The Depression, Anxiety and Stress Scale (‘DASS’) measures the level of distress reported by a patient across three sub-scales. The plaintiff’s scores indicate an extremely severe level of Depression, Anxiety and Stress.
Dr Robert Athey
60 In July 2013, Dr Athey, psychiatrist, medically examined the plaintiff at the request of the defendants’ insurer. It was his opinion she suffered a severe Major Depressive Disorder fulfilling the criteria as described in DSM-IV for Major Depressive Episode. He described her as appearing “deeply depressed”. His mental status examination revealed a very significant level of depression with tearfulness, significant weight gain, sleep disturbance and very pessimistic ideas. He said, in formulating a diagnosis for the plaintiff, one must consider her depressed mood and her level of pain perception. He said there is a well-known phenomenon whereby Severe Depression can exacerbate the perception of pain, and ongoing pain can exacerbate Depression.
61 Dr Athey said, as she presented, the plaintiff had no work capacity and, in view of the fact that it was over seven years since her injury, her symptoms have become worse despite treatment. He thought her condition was likely to continue indefinitely. He thought her injury was permanent. He said his prognosis was very guarded and recovery most unlikely. He thought her condition had deteriorated significantly since the Medical Panel review.
Dr Akinsola Akinbiyi
62 In June 2014, Dr Akinbiyi, consultant psychiatrist, reported to the plaintiff’s solicitors that he was treating the plaintiff on referral from her general practitioner. He said the plaintiff suffered from a severe psychological distress. He diagnosed Major Depressive Disorder, generalised Anxiety Disorder, Alprazolam Dependence Disorder, r/o[23] Adjustment Disorder with Mixed Anxiety and Depressive Mood. He said the plaintiff’s injury was sustained during the course of her employment and is a material contributing factor to her current psychiatric condition. He said, as a result of her psychological/psychiatric injury, she does not have the capacity to engage in any form of employment due to the severity of her psychological illness. He said this will continue into the foreseeable future.
[23]“r/o” is taken to be medical shorthand for ‘rule out’.
63 Dr Akinbiyi said the effects of her medication of Pristiq, 300 milligrams mane; Avanza, 15 milligrams nocte, and Alprazolam, 2 milligrams three times a day, are lethargy, sedation, poor attention and concentration. These side effects impact on her cognitive functions and severely affect her ability to undertake suitable employment.
64 Dr Akinbiyi said the psychological/psychiatric injury restricts the plaintiff in relation to her social, domestic and recreational activities for the foreseeable future. He said her prognosis is poor due to the chronicity of her anxiety and depressive symptoms. He said she has suffered multiple losses as a result of her illness, the loss of her partner, ability to function as a wife and mother and loss of her job. She is now dependent on receiving care from family, and perceives herself as a burden to the family. He said she needs to be admitted to an inpatient facility to wean her off Alprazolam and she would benefit from admission to a multidisciplinary unit to address her pain management.
The Defendants’ medical evidence
Dr Dush Shan
65 In January 2012, Dr Shan examined the plaintiff at the request of the defendants’ solicitor. He previously provided reports dated 23 April 2009, 3 March 2010 and 21 May 2010. He reported for the first time that the plaintiff said she had a partner with whom she has been in an apparently continuous relationship for six years. She was quite certain that she had advised him of this in previous examinations. Her partner lives in the same house, but at the moment they have separated for reasons she did not advise. According to her, Centrelink accepts this arrangement.
66 Dr Shan diagnosed an Adjustment Disorder as well as Dysthymic Disorder. He said, due to the aggravation of the plaintiff’s psychiatric condition, she is presently unfit for employment, as well as domestic or social activities. Basing his opinion solely on symptoms arising from the condition of Adjustment Disorder, he thought the plaintiff had a capacity for duties within her physical limitations. He said her physical injury and her psychiatric condition contribute to her Adjustment Disorder. He said at present she has no capacity for any work, and he believed her mental state had deteriorated since his previous examination. He said other factors are contributing to her mental condition, including the pre-existing diagnosis of Dysthymic Disorder and development experiences which have impacted on her personality.
67 In October 2012, Dr Shan re-examined the plaintiff. He was provided with the Medical Panel Opinion dated 20 February 2012. The Panel’s psychiatric diagnosis was of a Pain Disorder. Dr Shan stated that the Panel concluded that the plaintiff no longer has an identifiable physical injury related to employment, and her complaint of pain is not related to any employment-related physical injury. Dr Shan agreed that the plaintiff does warrant a co-morbid diagnosis of Pain Disorder. He was of the opinion the plaintiff’s pre-existing diagnosis of Dysthymic Disorder was not aggravated by the compensable injury. He said the Panel did not recognise the fact that change to pre-existing psychiatric treatment occurred only after the stress of disputes over entitlements.
68 Dr Shan described the plaintiff’s condition as a Pain Disorder with both psychological factors and a medical condition. He said, based on her current level of functioning, she had no capacity for employment or domestic or social activities. He said her incapacity for work was due to the psychological condition of Pain Disorder. However, that incapacity is only related to the plaintiff’s original compensable injury if it is concluded that there is an ongoing relationship to physical symptoms.
69 The conclusion of the Medical Panel is that the plaintiff no longer has any identifiable physical injury related to the original injury. Dr Shan said the Pain Disorder arose as a consequence of the physical injuries, but now has no relationship given the opinion of the Medical Panel regarding physical injury.
70 In October 2013, Dr Shan re-examined the plaintiff. He was provided with the medical report of Dr Triggs dated 13 November 2013 and surveillance DVDs dated 17 April 2010, and 15 and 16 August 2013. He reported the plaintiff was very concerned that she was now “going blind”. She had seen an ophthalmologist, who explained that the likely cause was medication such as steroids. She had problems with cataracts and her partner was paying for the cataract procedures out of his own funds. The plaintiff reported not seeing her psychologist, Ms Frankcom, for a number of months because she was blind and her daughter was unable to accompany her or drive her to these appointments. He reported the daughter has an “L” licence and the plaintiff is the designated licensed driver, even though she was supposed to be blind and was on large amounts of medication. The plaintiff had not been able to keep her appointments with Dr Embry, psychiatrist, for several months for similar reasons. Dr Shan reported that throughout the examination, the plaintiff wore sunglasses.
71 Dr Shan reviewed the DVD surveillance. The DVD of 14 April 2010 showed the plaintiff emerging from her house. She was shown going in and out of the house and talking to various people. She was observed at a football match and seemed to be watching someone she knows playing football. She seemed quite relaxed and enjoying herself. She was wearing a red strap on the left wrist. There was no evidence that she was distracted from participation by prominent pain.
72 In respect to the DVD of 15 August 2013, the plaintiff was shown in a relaxed conversation with someone behind the bar. She seemed quite relaxed. She was seen at a table having a meal with other people. He said from a psychiatric point of view, she displayed a normal range of effect and is capable of conversation. There was no evidence of uneasiness, anxiety or distress of any kind in the presence of strangers who passed by at the facility. The plaintiff was seen playing a poker machine surrounded by various patrons. She was no longer wearing sunglasses. She handled her telephone, as well as the poker machine in a competent fashion with no visual impairment. Sometimes she appeared to be talking to strangers who operated the poker machine next to her. The plaintiff was at the facility for in excess of one hour. When she finally left, it was dark and she seemed to be by herself. She drove home by herself in the dark.
73 Dr Shan said it was the fifth occasion he had seen the plaintiff. She did not report any improvement and continued to report a range of physical symptoms. Dr Shan said the plaintiff had not kept appointments with a psychiatrist, and her reasons for not keeping those appointments were not consistent with the DVD surveillance. He considered, after viewing the DVD, that the plaintiff could attend appointments by herself if she needed to. Further, he said her dramatic behaviour with respect to visual problems, and the wearing of sunglasses with claims of blindness, seemed convincing by her emotional account but were entirely inconsistent with the DVD recorded in August 2013.
74 The plaintiff told Dr Shan that she had seen a psychiatrist in the city who, based on her presentation, indicated she was in need of electroshock treatment. Dr Shan said the evidence in the DVD of August 2013 would be entirely inconsistent with that.
75 Dr Shan said the plaintiff was a complex patient who made it difficult for any practitioner to accurately assess her medical history, whether related to the work injury or otherwise, without factual verification. He believed she had a pre-existing diagnosis of Dysthymic Disorder, together with Pain Disorder. He said it is very likely there is a pre-existing diagnosis of Pain Disorder as indicated by Dr Triggs. He described the plaintiff’s condition as a Pain Disorder, with both psychological factors and a medical condition. He said in his last report, he relied on the plaintiff’s description and self-assessment. He said it is now evident that this is likely to be factually inconsistent. He said, having allowed for illness behaviour, the plaintiff has a capacity for suitable employment, as well as domestic and social activities.
76 Dr Shan formed the view the plaintiff was not a person who can be relied upon to provide factual information regarding her medical history. He said the latest surveillance of August 2013 is markedly inconsistent with the plaintiff’s presentation, particularly given the allegation of blindness. He said the plaintiff’s presentation in the surveillance caused him to alter his opinion as to her psychiatric fitness to return to suitable employment.
77 Dr Shan thought the plaintiff could perform suitable employment options of general clerk, sales assistant, ticket sales person and car park attendant. He said she should commence employment on a part-time basis, not more than 20 hours per week.
Dr David Ho
78 In October 2012 and November 2013, Dr Ho, occupational health consultant, was of the opinion, after examining the plaintiff in October 2012, there was no physical injury to her left arm, and in the absence of an ongoing Reflex Sympathetic Dystrophy or Chronic Regional Pain Syndrome, he did not believe, from a physical perspective, there was any relationship between her current condition and the work injury.
79 Dr Ho thought the plaintiff, after rehabilitation, re-training and motivated self-managed exercises (concentrating on gradually restoring function and use of her left hand), would be able to perform her role as a netball umpire, sales assistant, usher, car park attendant and ticket seller. He said she was not qualified, nor has she transferable skills, for an optical sales assistant. Casual sales assistant is within her capabilities, as is a ticket sales person, ticket seller, booking clerk and box office attendant. He thought she could work as a car park attendant, crossing supervisor, leaflet and newsletter deliverer, ticket collector or usher. She would be able to work as a bowling alley attendant.
Dr Wendy R Triggs
80 In May 2011, Dr Triggs, psychiatrist, was asked by the defendants’ insurer to comment on correspondence that indicated the plaintiff was considering applying for a netball supervisor position. Dr Triggs said there was the possibility that applying for a job and actually having a work capacity may not be the same thing. She could not comment further without re-examining the plaintiff.
81 In November 2012, Dr Triggs said the reference in a medical report in 2006 that the plaintiff was prescribed Panadeine Forte and antidepressant medication meant it was highly likely that she had been diagnosed with a Psychiatric Disorder. She said it was probable that the plaintiff suffered a Chronic Pain-type Syndrome prior to suffering the claimed injury. She based this on the plaintiff’s regular and repeated prescriptions of Panadeine Forte. She said it was likely that the plaintiff was being prescribed these for ongoing physical pain.
Mr Kendall Francis
82 In May 2011, Mr Francis, surgeon, provided a supplementary report to the defendants’ insurer. He considered the plaintiff had no current work capacity based on her presentation six weeks previously. She portrayed not only a Chronic Pain Syndrome presentation but various other factors such as obesity, Depression and Anxiety plus diabetes due to her weight gain. His impression was that the plaintiff attempting to return modified pre-injury duties and hours, or alternative duties and/or hours, with the plaintiff’s current employer or another employer, was, if not impossible, a tremendously uphill road to face. He said there were so many militating factors against the plaintiff returning to work that it would be a miracle if she were able to overcome these aspects and return to work. He said there would need to be modifications to accommodate her psychological condition. He concluded that the plaintiff may never return to work.
83 In October 2012, the plaintiff was examined again by Mr Kendall Francis, who said the diagnosis is one of relieved pain in relation to the left wrist and, to a lesser extent, the right knee following relatively minor injuries inflicted in the work-related incident of March 2008. He said the plaintiff’s condition was becoming more and more entrenched as various treatment attempts fail. He noted other factors contributing to the plaintiff’s present condition are her psychological/psychiatric features plus her obesity, as well as her diabetes. It was his impression that a multiplicity of other factors may well be more significant than the original work-related injury.
Mr Damian Ireland
84 In October 2013, Mr Ireland, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor. He diagnosed a Chronic Pain Syndrome. He said the plaintiff most likely has a secondary adhesive capsulitis at the left shoulder. He could find no convincing evidence of any significant residuum of Chronic Regional Pain Syndrome. In his opinion, the plaintiff had recovered completely from the main physical nature of the work injury, but had developed a Chronic Pain Syndrome as a complication of this injury. He said the overwhelming component of the plaintiff’s symptom complex is non-physical in nature, and he relied upon the reasons of the Medical Panel report.
85 Mr Ireland said the plaintiff was totally unemployable in any capacity at the present time due to her Chronic Pain Syndrome and her Adjustment Disorder. He said there were no residual features of Chronic Regional Pain Syndrome in the plaintiff’s left hand and wrist. She does have restricted motion of the left shoulder, which could be the result of the resolved Chronic Regional Pain Syndrome.
86 Mr Ireland was provided with the surveillance footage dated 17 April 2010 and the DVD surveillance of 18 August 2013. It was his view that there was a deterioration between 2010 and 2013, most likely due to the onset of Complex Regional Pain Syndrome. The left wrist was not splinted in 2010, and remained splinted throughout the surveillance of 2013. However, he said there was no apparent discomfort in the left wrist throughout a range of normal daily activities. The plaintiff’s affect was entirely different to that witnessed by him in his examination on 9 October 2013, when she was so emotionally labile he found it difficult to obtain an accurate history, and the amount of apparent discomfort prevented a comprehensive examination of the left upper extremity.
87 Mr Ireland said, without an intervening event between the surveillance taken in August 2013 and the current examination, the change in affect is inexplicable on physical grounds. It was his opinion that the overwhelming component of the plaintiff’s symptom complex was non-physical in nature. This would make her unemployable in most of the occupations outlined, except possibly a car park attendant.
Mr Kenneth Myers
88 In November 2009, Mr Myers, surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported worse problems affecting the whole of her left arm, with pain that she described as “horrendous”. She stated there is twitching of the fingers. He noted, on examination, that there was a rash on both arms. The circulation of both hands appeared to be normal, with no excess sweating in the warm environment of his consulting room. He said there was approximately 50 per cent restriction in the range of movement of the left wrist. It was his opinion that the plaintiff had ongoing severe disability due to Complex Regional Pain Syndrome of the left upper extremity and probable internal derangement and chondromalacia patella of the right knee. He agreed with the treating doctor at the Pain Management Clinic that there was probably nothing more that could be done for the plaintiff. He said she had no capacity for work because of the disability in the left upper extremity and knee.
Dr Michael Epstein
89 In August 2012, Dr Epstein, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. Dr Epstein reported that the plaintiff gained more than 40 kilograms in weight since the injury. She was sleeping on two mattresses in the lounge room and experienced difficulty sleeping, with initial, mid and late insomnia. She sleeps during the day. The plaintiff reported pain extending up the whole of her left arm into the left side of her neck, with a left-sided headache and numbness and tingling in these areas. She reported ongoing problems with her right knee. She reported needing assistance with most activities of daily living. She reported last having a shower about three weeks before the appointment. She said she had her wash a week previously. She needed help with dressing and cutting up her food. She performed limited housework and did no cooking. She reported panic attacks, both day and night, is uneasy in crowds and away from home, and avoids leaving home when possible.
90 Dr Epstein said she wore a brace on her left hand and left arm and remained virtually immobile during the course of the interview. She reported her weight at more than 140 kilograms.
91 Dr Epstein said he was more impressed by the severity of her level of Depression, and he now considered she had a Major Depressive Disorder of moderate severity. She still has some Panic Disorder, with Agoraphobia symptoms.
Dr Clayton Thomas
92 In October 2012 and September 2013, Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the plaintiff’s solicitor.
93 In November 2012, he reported the prognosis was extraordinarily poor and that the plaintiff did not have a work capacity, which he thought was likely to be an indefinite situation.
94 In September 2013, Dr Thomas said he reviewed the plaintiff in December 2012 and February 2013. Dr Thomas said the plaintiff was suffering from a Chronic Pain Syndrome which involved the left upper limb, the left wrist, the lower back and the right knee. He said, from an organic perspective, the plaintiff was suffering a significant underlying organic problem, but the precise diagnosis was obscured by the significant emotional sequelae, making it difficult to see the underlying organic problem in isolation. He said the plaintiff presented as being markedly disabled and, based on his previous memory of her, and on both the physical and psychological consequences, the plaintiff did not have a capacity for suitable employment. Dr Thomas was treating the plaintiff.
Surveillance
95 On 14 April 2010, surveillance was conducted for a period of 6 hours and 15 minutes. I was provided with film of 17 minutes and 40 seconds. The plaintiff exited her premises dressed in her nightgown, at 2.29pm, to collect the mail from the letterbox and returned indoors. Still attired in her nightgown, she was later seen sitting behind a ‘For Lease’ sign holding a mobile telephone in her left hand. She proceeded to talk on the mobile telephone for some time, smoking a cigarette in her right hand. She was later seen, having changed clothing, leaving the house, wearing a brace on her left arm and carrying a bottle of water in her right arm.
96 On 17 April 2010, surveillance was conducted between 8.15am and 3.00pm, of which I was provided with 47 minutes and 20 seconds of film. The plaintiff and two males were sighted outside her home. She sat in the back seat of a car and the males sat in the front seat. She was next seen at a football match. She was seen standing at the football on the edge of an embankment, smoking a cigarette with her right hand and wearing a wrist brace on her left hand. She was filmed from behind. She sat on a wooden bench holding a cup in her left hand, before transferring it to her right hand. She sat on a collapsible outdoor chair. She seemed to be conversing with other people. She was animated. She smoked with her left and right hand. On numerous occasions, she raised her left wrist above her head to shield her eyes from sun glare. A male assisted her as she repositioned on the embankment. At no stage did she seem to be protecting her left arm.
97 On 15 August 2013, the plaintiff was seen driving a blue Toyota to the Grovedale Hotel, travelling at about 119 kilometres per hour. She emerged from the vehicle by herself, wearing sunglasses and walking into the building in a normal fashion. She was wearing a wrist support on her left arm. She was subsequently seen having a conversation with someone behind the bar. She looked quite relaxed. Later, she was at a table having a meal accompanied by other people with whom she engaged. She ate using her right hand. She was later seen sitting by herself at a table smoking. Later again, she was seen playing a poker machine surrounded by other people (for approximately three-and-a-half hours). During that time, there was very little active movement of her left arm. She was seen handling her telephone, as well as the poker machine, in a competent fashion. She talked to strangers who operated the machine next to her. When she left the facility, it was dark. She was not seen with anyone else and seemed to drive home in the dark. I accept that she was predominantly seen to be using her right arm, and only used her right arm on the poker machines.
98 On 16 August 2013, the plaintiff was seen standing at the front of her property whilst removing mail from the letterbox and walking at a leisurely pace, ascending a very slight incline in the driveway while reading her mail.
99 A number of the medical witnesses viewed the surveillance, and varied significantly as to the effect the surveillance had on their opinions.
100 Ms Frankcom, psychologist, confirmed she last saw the plaintiff in May 2013. She reviewed the surveillance material of 15 and 16 August 2013. She had previously diagnosed the plaintiff with a Chronic Adjustment Disorder with Depressed Mood, and Pain Disorder. She said the surveillance material which showed the plaintiff attending a hotel, eating lunch, and playing the pokies, did not particularly contradict the view she had formed.
101 Dr Epstein, psychiatrist, viewed the surveillance of 15 and 16 August 2013. He said the plaintiff reported that she had not returned to the Grovedale Hotel since August 2013. She also reported that she was subsequently advised by her ophthalmologist and her physiotherapist to stop driving. Dr Epstein reported that the surveillance showed significant limitation of movement of her left arm, but he noted she was cheerful and sociable during the hours she was at the hotel and she appeared to show no discomfort about being there. He further reported that this suggested whatever fear she has about being away from home may be a little less severe than she would indicate.[24]
[24]PCB 265A and 265K
102 The Medical Panel viewed the surveillance of 17 April 2010 in the presence of the plaintiff. The Panel noted the plaintiff was filmed watching football and she had her left arm up to shade her eyes from the sun. She was noted to have lifted a cup to her mouth with her left hand to drink. The plaintiff told the Panel that these activities took place on the day after she had physiotherapy, when her range of motion sometimes increases for a short period. Apart from the above, the Panel considered that, in general, the actions of the plaintiff depicted were not inconsistent with her presentation on examination.[25]
[25]Medical Panel Reasons dated 20 February 2012, DCB 292 at 297
103 Mr Francis reviewed the Surveillance Activity Reports of 14 April and 17 April 2010, but did not view the footage. He said the plaintiff seemed to use her left hand more than she could at the consultation on 14 April 2011, twelve months later. Further, the description of the plaintiff walking up and down a steep embankment would have been hard for her to achieve, judged on her walking ability twelve months later at the consultation on 14 April 2011. He concluded that the plaintiff would be considered to have deteriorated in the succeeding year since the surveillance report.[26]
[26]PCB 193 at 201
104 In May 2010, Dr Shan was provided with the surveillance activity report, but did not view the footage of April 2010. He noted the plaintiff was engaged in a range of activity, including operating a motor vehicle. She had not told him that she was unable to engage in activities of that nature from a psychiatric viewpoint. He concluded that the report was consistent with his examination and its conclusion.[27]
[27]PCB 237
105 In his report of 9 October 2013, Dr Shan viewed the surveillance of 15 August 2013. He expressed concern regarding the plaintiff driving and her reported blindness. He concluded that there was dramatic behaviour with respect to visual problems and the wearing of sunglasses during the interview, with claims of blindness, which were entirely inconsistent with the DVD recorded in August 2013.[28]
[28]DCB 30
106 Mr Ireland reviewed the Surveillance Activity Reports of 2010 and 2013, but not the DVD footage. He said there had been an obvious deterioration between the two dates, most likely due to the onset of Complex Regional Pain Syndrome. He noted the left wrist was not splinted in 2010, but was in 2013. Notwithstanding this, he said there was no apparent discomfort in the left wrist throughout a range of normal daily activities. Further, the plaintiff’s affect is entirely different to that witnessed by him in examination on 9 October 2013 when she was so emotionally labile, he found it difficult to obtain an accurate history, and the apparent discomfort prevented a comprehensive examination of the left upper extremity. Further, he said, without an intervening injury between the surveillance taken in August 2013 and his examination in October 2013, he thought the change in affect was inexplicable on physical grounds.
107 Dr Ho said, after viewing the report from Work Focus Australia dated 21 December 2009, the surveillance investigation report dated 22 April 2010, the position description of the plaintiff’s pre-injury duties with the first defendant, and the DVDs:
“… [This] confirms my opinion from my physical examination that … [the plaintiff] has better capability than she would like me to believe. … .”
108 Dr Ho considered that, based on the surveillance and his clinical findings, the plaintiff was fit for normal and unrestricted duties. Further, she did not require a wrist brace or any surgical aid for her knee.[29]
[29]PCB 213
109 I note the defendant had the plaintiff under surveillance for 92 hours and 23 minutes over fourteen days. On six days, the plaintiff was sighted and was shown in film totalling 2 hours 29 minutes and 30 seconds on 14 and 17 April 2010, 23 October 2012 and 15 and 16 August 2013. I accept that surveillance is a snapshot in a person’s life. I am also aware of the number of hours for which the plaintiff was under surveillance and the hours which she was not sighted, which is consistent with her evidence that she spends much of her time confined to home. Based on my viewing of the surveillance and the comments of medical witnesses, I accept that, when sighted on 14 April 2010, the plaintiff was attired in her nightgown at 2.29pm. On 17 April 2010, she was at the football, appeared animated and engaging with other people. Dr Shan and the Medical Panel said the surveillance was not inconsistent with the plaintiff’s evidence. Mr Kendall saw the surveillance footage, but had not seen the plaintiff for twelve months after the surveillance was taken.
110 In August 2013, the plaintiff made comments to some of the medical witnesses about her deteriorating eyesight prior to the surveillance. Dr Shan thought the plaintiff’s conduct at examination was inconsistent with the surveillance recording. Dr Epstein concluded that whatever fear the plaintiff had about being away from home was less severe than she indicated. Mr Ireland could not explain the difference in the plaintiff’s affect between the surveillance activity reports and his later examination. Ms Frankcom said the plaintiff’s behaviour at the hotel did not contradict the view she had formed in relation to the plaintiff.
111 Overall, I take into account the opinions of the respective medical witnesses and how they qualified their opinions in the light of the surveillance. I accept that the surveillance footage must be considered with all of the evidence. At the time of the work injury, the plaintiff was working.
The Plaintiff’s credit
112 The plaintiff was aged forty-seven and gave her evidence over three days. She had limited education, having left school aged fourteen. She worked in retail. At age twenty-five, she played netball at the YMCA in Werribee and was badged to do umpiring work in 1997-1998, umpiring four to five days per week. She was employed as a supervisor/fixture coordinator and subsequently picked up duties of customer service in the canteen.
113 The plaintiff’s credit was in issue. In fact, the submission of the defendant was that the plaintiff was not a credible witness and her evidence ought not to be believed. A number of matters were relied upon.
114 First, the defendant submitted that the plaintiff has not been open with Centrelink about her relationship with Mr McPherson, to whom she was engaged prior to the work injury. The plaintiff’s evidence was that since approximately five months after the work incident, she and Mr McPherson separated but now live under the same roof. She reported this to Centrelink, and to a number of medical witnesses.
115 Counsel for the defendant drew attention to a Facebook entry in November 2013. It was a photograph of the plaintiff with Mr McPherson. A friend from school days enquired on Facebook as to whether Mr McPherson was the plaintiff’s “man”.[30] The plaintiff admitted that she replied by typing “Yes, he’s my man, hon”. The plaintiff denied this was an acknowledgement that they were in a relationship and said that this meant “He wants to be my man”.[31] Counsel for the defendant submitted that this should not be accepted and it was clear that Mr McPherson was, and continues to be, her partner.
[30]T82, L66 – T83, L31
[31]T86, L6–13
116 The plaintiff agreed Mr McPherson supported her when he could by attending court on occasions and driving her to medical appointments when available. The plaintiff agreed that on very rare occasions they had been intimate. The plaintiff became very distressed when answering very personal questions about her relationship with Mr McPherson. I formed the view that these were deeply personal issues which, whilst there was conflicting evidence on this aspect, I do not consider it a matter that I must decide. I formed the view that the evidence the plaintiff gave on this aspect was genuine, albeit confused and deeply personal to her.
117 Second, the plaintiff gave inconsistent evidence about her use of Facebook and who posted entries on her Facebook page. The plaintiff’s evidence was that she did not use Facebook very often. Consistent with the plaintiff’s evidence, I formed the view that the plaintiff was not a directly active participant on Facebook. I was provided with 22 pages from August 2012 to December 2013. However, it was clear that some of the entries, whilst on the plaintiff’s account, had not been posted by her.
118 Third, on occasions, the plaintiff exaggerated her evidence; in particular, the impact of cataracts on her vision, a reference to an “adopted daughter”, and symptoms in respect to her physical injuries. This was despite the fact that in closing submissions, the plaintiff abandoned an application under paragraph (a) and relied upon the application under paragraph (c) only. I accept that on occasions, the plaintiff did exaggerate. She used dramatic language and emotive language. In fact, she told Mr Myers that the pain in the left arm was “horrendous”. She told the Court that her consultation with Dr Ho lasted for 10 minutes. When one looks at the report, one can infer from the content of it that the examination was longer. She reported to Dr Epstein that she had not been able to shower for three weeks. She dramatised her evidence.
119 Fourth, the plaintiff was not accurate in describing her weight and weight problems prior to the incident. The general practitioners’ records from January 2002 to July 2011 were contained in the Defendant’s Court Book. The records show that the plaintiff’s weight was an issue in consultations from 2002. The plaintiff was prescribed Duromine (an appetite suppressant). I accept that the plaintiff‘s evidence about her weight was inconsistent with the medical records. I rely upon the medical records rather than the plaintiff’s memory on this issue. The medical records confirm that after the incident her weight increased substantially.
120 Overall I formed the view that the nature of the plaintiff’s answers were in large part due to her lack of education. In assessing the plaintiff, I take into account that she was prone to exaggeration.
121 The credibility of the plaintiff as a witness and as a historian of her symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact the medical opinions may, to varying degrees, be dependent upon the accuracy of the patient as a claimant or historian.[32]
[32]For example Mobilio v Balliotis (supra); Barwon Spinners & Ors v Podolak (supra) at paragraph [46]; Dordev v Cowan [2006] VSCA 254 at paragraphs [14]-[19]
122 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by the plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[33] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application.
[33][2007] VSCA 104 at paragraphs [49]-[58]
123 Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[34] In considering the credit of the plaintiff, I must consider the evidence as a whole.
[34]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
124 The cross-examination as to the plaintiff’s credibility largely stemmed from the material in the reports related to physical injury. I have considered the material put forward by the defendant in this respect. I am, however, mindful that the plaintiff abandoned her application under paragraph (a) and that, otherwise, the majority of medical witnesses agreed on the plaintiff’s psychological/psychiatric injury.
Analysis of the evidence
The psychiatric injury
125 It was not in issue that the plaintiff suffered post-natal depression after the birth of her third child, eighteen years ago. The clinical notes of the plaintiff’s general practitioner show that she had some depressive episodes prior to the workplace injury, generally related to issues or events in the plaintiff’s life which were significant to her. The plaintiff’s evidence was that prior to the work injury, she used antidepressant medication on and off, had not suffered panic attacks and had no problems with crowds. This was confirmed by the clinical notes.
126 Based on the psychiatric report, the plaintiff’s condition was variously described as:
· a Pain Disorder with both psychological factors and a medical condition, Dysthymic Disorder[35]
[35]Dr Dush Shan
· Major Depressive Disorder and has panic attacks[36]
[36]Dr Epstein
· Major Depressive Disorder[37]
[37]Dr Athey
· Major Depressive Disorder, generalised Anxiety Disorder, Alprazolam Dependence Disorder, r/o Adjustment Disorder with Mild Anxiety and Depressive Mood[38]
[38]Dr Akinbiyi
· Major Depressive Disorder and generalised Anxiety[39]
[39]Dr Ismail, General Practitioner
· Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Pain Disorder[40]
· an exacerbation of a pre-existing chronic Dysthymia and also a Chronic Pain Disorder associated with both psychological factors and general medical condition.[41]
[40]Ms Frankcom, Psychologist
[41]The Medical Panel
127 Dr Ismail diagnosed a Major Depressive Disorder and generalised Anxiety as a result of her work injury, which she considered is a material contributing factor to her current psychiatric condition.
128 Dr Shan reported that the plaintiff had a history of Chronic Depression since the onset of a post-natal episode, and that the plaintiff had taken the antidepressants, Lexapro and Alprazolam, ever since. He noted, in 2009, they had not been increased since her present injury.
129 Dr Epstein said the plaintiff’s Depressive Disorder was now solely from the effects of her work injury.
130 Whilst Dr Athey obtained a history that the plaintiff did not require treatment for her post-natal depression, Dr Athey was aware that the plaintiff was on antidepressant, Lexapro, together with anti-anxiety medicine, Kalma, since suffering post-natal depression after her third child, and that she had remained on those medications ever since. It was his view that the work injury precipitated her problems. He said the initial injury probably is not now contributing, but the plaintiff’s inability to continue working, and her being dismissed, are significant contributing factors to her continuing illness. He said she had no work capacity. Since her injury, her symptoms have become worse and are likely to continue indefinitely.
131 Dr Akinbiyi was of the opinion that the plaintiff’s psychological injury was sustained during the course of her employment, which was a contributing factor to her current psychiatric condition. Dr Akinbiyi treated the plaintiff on referral from her general practitioner and had available the plaintiff’s clinical file which, together with his own assessment, formed the basis of his report. I infer that he would have been aware of the plaintiff’s issues with post-natal depression.
132 The Medical Panel concluded that the plaintiff was suffering from an exacerbation of a pre-existing Chronic Dysthymia and also from a Chronic Pain Disorder as a result of the work injury.
133 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury, being a psychiatric condition, now described as a Major Depressive Disorder by the majority of psychiatrists. It was accepted that the plaintiff had suffered from pre-existing Chronic Dysthymia.
134 The issue was the extent to which the plaintiff’s current psychiatric condition was work-related and whether the consequences where “severe”.
Aggravation injury
135 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ, in Petkovski v Galletti,[42] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[43]
“… A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment … .”
[42][1994] 1 VR 436
[43](Supra) at 443
136 Where the injury for which compensation claimed is an aggravation injury, the additional impairment must, itself, involve a permanent severe mental or permanent severe behavioural disturbance or disorder.
137 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the work injury was “severe”.
138 The evidence was that the plaintiff suffered post-natal depression after the birth of her third child, had some depressive episodes prior to the workplace injury, and was taking medication at the time of the workplace injury. Dr Gilani, general practitioner, of the Wyndham Vale Health Care Clinic confirmed the plaintiff had been a patient since 2002. In 2010, he said the plaintiff had a history of anxiety/depression prior to the work injury, but the condition had “notably worsened” since the work injury.
139 The evidence was that the plaintiff was asked about the extent of her depression before the accident and how she compared it with what she is undergoing now. The plaintiff responded:
A:“I was a single mum beforehand raising three children, working, also did kinder duties and president of kinder and school, also all the activities that they went to. I did all that.
Q: How did you cope with all that?---
A: Brilliantly.
Q: How would you cope, or, how are you coping now?---
A: Not good at all.”
140 The general practitioners’ records confirm the plaintiff reported feeling generally “down”, and was prescribed an antidepressant in June 2003 which continued. In September 2005, the plaintiff reported a flare up of depression, and seeing a counsellor. She was prescribed Xanax and Alprax. Thereafter the plaintiff was prescribed Panadeine Forte, but the reason was unclear from the general practitioners records. Dr Triggs opined that the Panadeine Forte prescriptions were related to physical pain. In 2006, Lexapro was commenced after the plaintiff reported a stressful event with her children’s health. In the twelve-month period prior to the work injury, the plaintiff consulted her general practitioner in relation to low mood, stressors including her family members and headaches over the left eye. Stressors included financial issues, health, the death of a friend and incidents involving her children’s wellbeing. As a result, her medication was increased. The records confirm that the plaintiff reported being “very active in the community”. I accept that between September 2007 and January 2008, the plaintiff was being treated for psychological issues arising from incidents involving her family and other discrete matters.
141 The plaintiff’s evidence was that at the time of her injury, she was working as a casual netball supervisor on Sunday nights. She started at about 6.30pm and finished at 10.45pm. She did not work overtime, although she had been asked to work extra hours at any time, which she did. She was called in when somebody could not do a shift, because her employer knew that she would go in and do it. As a casual customer service officer, her usual hours of work were from 1.00pm to 6.00pm on a Sunday and then she took over for netball.[44]
[44]T50 (1-22)
142 The plaintiff’s evidence was that she always accepted extra work. If she had been offered full-time work, she would have taken it and would have been able to cope with it before the work injury. If she had been offered overtime, she would have taken it. She loved the job.[45]
[45]T195.24-150.4
143 Accordingly, I accept that at the time of the work injury, the plaintiff was coping well with her work. This is supported by the plaintiff’s general practitioner’s records. I reviewed those records from January 2002 until March 2008. When considered as a whole, the medical records confirm the plaintiff consulted her general practitioner in September 2005 with a flare-up of Depression and lots of stress, with her children having a meningitis scare in January 2006. Lexapro was prescribed in March 2006 and Alprazolam at that time. In late 2006, there was a reference to stress regarding her partner. In September 2007, she had a few psychological consultations. In January 2008, she attended two psychological consultations of approximately 10 minutes each in respect to family issues.
144 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions in this case, namely the reports of Dr Ismail, Dr Shan, Dr Epstein, Dr Athey and Dr Akinbiyi. However, it is necessary to consider the Medical Panel’s Opinion, as it disagreed with the opinion of Dr Shan.
Employment
145 In February 2012, the Medical Panel, in its Reasons, concluded that the plaintiff was currently suffering from an exacerbation of pre-existing Chronic Dysthymia and also from a Chronic Pain Disorder. In reaching its conclusion, the Panel considered the reports of Ms Frankcom, treating psychologist, of June 2011, who concluded that the plaintiff had a Major Depressive Disorder and Pain Disorder. It also considered the report of Dr Triggs, psychiatrist, of 31 March 2011, who concluded that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed Mood.
146 The Panel was aware of the reports of Dr Shan, psychiatrist, dated 23 April 2009 and 3 March 2010, where he concluded that the plaintiff was suffering from an Adjustment Disorder with Mixed Depression and Anxiety, and a pre-existing Dysthymic Disorder which was not aggravated. He noted the presence of chronic pain. The Panel said that, based on its experience, its own history-taking, the mental status examination and clinical judgment, it came to a different conclusion from Dr Shan with regard to the plaintiff’s diagnosis. The Panel considered that the plaintiff’s condition was better characterised by its diagnosis of an exacerbation of pre-existing Chronic Dysthymia and also from a Chronic Pain Disorder associated with both psychological factors and a general medical condition which have arisen as a consequence of the physical injuries.
147 In considering the plaintiff’s capacity for employment, the Panel referred to Dr Shan’s reports of 3 March 2010 and May 2010. The Panel disagreed with the opinion of Dr Shan regarding the nature and extent of the plaintiff’s psychiatric condition and her capacity for work. In October 2012, Dr Shan commented upon the Panel’s Reasons for Opinion and changed his view.
148 In relation to employment, Dr Epstein, Dr Athey and Dr Akinbiyi said that, from a psychiatric perspective, the plaintiff was unfit for any employment. Dr Epstein said the plaintiff’s prognosis was poor. Dr Athey said the plaintiff’s prognosis was very guarded, and recovery most unlikely. Dr Akinbiyi said the plaintiff had no capacity to engage in any form of employment due to the severity of her psychological illness, which will continue into the foreseeable future. He said the side effects of the medication the plaintiff is taking would impact on her cognitive functions and severely affect her ability to undertake suitable employment. He said the prognosis is poor due to the chronicity of her anxiety and depressive symptoms.
149 As a result of the work injury the plaintiff is no longer able to work on a psychiatric basis alone. In accordance with the principles of Petkovski v Galletti,[46] I am satisfied that the basis of this additional impairment has been brought about by the work injury.
[46][1994] 1 VR 436
150 Dr Shan said he agreed with the Panel that the plaintiff’s diagnosis was of Pain Disorder, with both psychological factors and a medical condition, but the condition would be related to the compensable injury if it is considered there is a physical injury related to the claimed injury. He said, from a psychiatric perspective only, the condition of Pain Disorder does preclude the plaintiff from undertaking suitable employment. He reiterated his view that the plaintiff’s pre-existing Dysthymic Disorder was not aggravated by the plaintiff’s compensable injury.[47]
[47]DCB 21
151 Dr Shan, after viewing the surveillance, said the plaintiff could perform suitable employment options of general clerk, sales assistant, ticket sales person and car park attendant. He said that she could commence employment on a part-time basis, not more than 20 hours per week. Given the plaintiff’s presentation in Court, the comments of the Medical Panel, and other psychiatric reports, I do not accept Dr Shan’s opinion. Dr Shan was in the minority on this aspect.
152 Whilst the Panel’s opinion was that, based on the plaintiff’s psychiatric condition, she was not capable of performing her pre-injury duties and has no current work capacity, which is likely to continue indefinitely, it did not review the surveillance DVD of 15 August 2008. I note the surveillance was viewed by Ms Frankcom, psychologist, who said it did not particularly contradict her previous diagnosis. Dr Epstein viewed the surveillance and said the plaintiff was unfit for any employment. Dr Ismail, the general practitioner, reviewed the surveillance and provided an uncertain prognosis about work capacity. Dr Ismail, when asked whether from a psychiatric/psychological perspective the plaintiff was precluded from performing pre-injury employment for the foreseeable future, replied “maybe”; however, the opinion of the majority of the psychiatrists is the plaintiff has no work capacity.
153 The plaintiff told the Court that she would like to return to work.
154 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[48]
[48]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra)
155 Given the medical evidence, I am satisfied that the plaintiff cannot return to work. The plaintiff is aged forty-seven years. She has been out of the workforce for five years. The plaintiff reported to some of the medical witnesses her desire to work. I accept that her inability to return to work represents a significant loss to this plaintiff. Given the length of time that the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
156 I am satisfied that it is fair to describe the consequence of this plaintiff’s loss of earning capacity as “severe” within the Act when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
157 In reaching the finding, I have made a comparison with other cases in the range of possible impairments. In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
158 Given the medical evidence of Dr Epstein, Dr Athey and Dr Akinbiyi that the plaintiff has no capacity for work currently or into the foreseeable future as a result of her mental condition, I find that the plaintiff is effectively out of the workforce for any employment as a result of her mental condition.
159 Accordingly, there is no need to go into an analysis of wage rates, as I do not accept that the plaintiff has any residual capacity, given the medical evidence.
160 Given the plaintiff’s level of medication, which is supported by her treating doctors, I accept that she does not have the capacity to return to work or participate in any form of treatment or rehabilitation that will return her to any meaningful work in the foreseeable future.
161 I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
162 In view of the matters I have described, the plaintiff has discharged the onus with respect to her mental condition regarding her loss of earning capacity.
163 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
164 Accordingly, I grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered over the course of her employment with the defendant after March 2008.
165 I will hear the parties on costs.
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