Rice v The Windana Society Inc
[2011] VCC 1510
•2 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04565
| CAROLYN MAREE RICE | Plaintiff |
| v | |
| THE WINDANA SOCIETY INC | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 21 November 2011 |
| DATE OF JUDGMENT: | 2 December 2011 |
| CASE MAY BE CITED AS: | Rice v The Windana Society Inc |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1510 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – damages.
CATCHWORDS - Psychiatric impairment – pain and suffering – loss of earning capacity.
LEGISLATION CITED - Accident Compensation Act 1985
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident
Commission (1995) 21 MVR 314; Barwon Spinners v Podolak [2005] VSCA 33; Grech v
Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010]
VSCA 69; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
JUDGMENT – Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Maurice Blackburn Pty Ltd |
| Mr J Goldberg | ||
| For the Defendant | Mr N Horner with | Thomsons Lawyers |
| Ms P Cefai | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant in 2002 and early 2003 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff clams to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder pursuant to Section 134AB(37)(c).
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(v) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(vi) Section 38(g) requires questions of rehabilitation and retraining to be considered in determining whether the forty per cent loss has been established;
(vii) Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(viii) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(ix) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(x) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(xi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(xii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14VR 622 and Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.
4 The plaintiff relied upon two affidavits and gave viva voce evidence. Dr Hogan, the plaintiff’s treating psychiatrist, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
5 The plaintiff is aged forty five, having been born in June 1966. After finishing school, she worked at Woolworths for about eight years. The plaintiff then worked in a number of jobs including clerical work. She went overseas for a few years and following that, she worked with her husband who was then a Reiki practitioner.
6 In terms of her past health, the plaintiff could not recall complaining to her doctor in 1995 and 1996 of tiredness and sleep problems. She agreed she had a problem with her weight and seen a doctor in relation thereto in April 2002 when she weighed one hundred and twenty four kilograms.
7 In April 2001, the plaintiff commenced working for the first defendant as a clinician, previously having done some voluntary Reiki for its clients. The plaintiff had no qualifications whatsoever to work as a clinician and had no previous experience with that type of work.
8 The plaintiff was employed by the first defendant in its drug and alcohol centre in Dandenong (“the Centre”), which cared for youths aged between twelve and twenty one, going through alcohol and drug withdrawal. The plaintiff worked seventy six hours per fortnight on rotating shifts, counselling clients and assisting them through various programs.
9 Initially, the plaintiff worked part time but very quickly she became full time. There were three days of orientation. The plaintiff started but did not complete the Certificate IV in Drug and Alcohol Counselling.
The Work Injury
10 The plaintiff suffered a psychiatric injury as a result of the work environment she was subjected to, the lack of training with which she was provided and the poor supervision and management of her work by the first defendant.
11 In early 2003, a client trashed a house at the Centre (“the trashing incident”). This was a very threatening situation for the plaintiff and she was traumatised by it. The ambulance, police and fire brigade attended. The client was out of control and he was arrested and removed.
12 Following the trashing incident, the plaintiff felt very unsettled and upset. She reported her feelings to management but was not given any counselling.
13 In April 2003, the plaintiff was concerned about one of the clients displaying suicidal behaviour. She reported this situation to a fellow worker, Gibson and was told the CAT Team had been called, when in fact they had not. Eventually the plaintiff found the client unconscious on the floor in his bedroom and she then had to call the ambulance (“the attempted suicide incident”).
14 Further, Gibson continually made it difficult for the plaintiff to work within the first defendant’s guidelines and treated her in a very intimidating way.
15 Following the attempted suicide incident, the plaintiff could not keep going and broke down in front of her colleagues. The plaintiff was eventually forced to see Dr Vicente, her general practitioner.
16 The plaintiff was cross-examined about an attendance with Dr Vicente on 3 April 2003 when she reported feeling depressed and having difficulty coping. The plaintiff explained she did not mention her work problems because she found it difficult to acknowledge negative things about herself and she would have hidden them.
17 The plaintiff could recall being prescribed Cipramil in early 2003. She could not exactly remember marital difficulties in May 2003, but she knew her husband was not happy that she was taking medication because he was into natural therapies.
18 The plaintiff could not recall telling a Dr Dyer, in March 2003 that she had marital difficulties. The plaintiff could have been “cheesed off” with her husband at that stage.
19 The plaintiff could not remember in March 2003 telling Dr Korman, gastroenterologist, about marital problems. The plaintiff agreed she had experienced problems throughout the marriage but said most marriages do. She could not say if that was the case in 2003.
20 The plaintiff attempted to return to work a few times after the attempted suicide incident but she could not cope and was given a certificate to remain off work.
21 In cross examination, the plaintiff confirmed she had problems on her return to work with the first defendant. She was meant to stay in the office and keep away from clients, but they always came into the office asking questions or requesting medication.
22 The plaintiff felt used by the first defendant because, whilst she was certified to have no client contact, when it suited her employer, she had to have such contact.
23 When asked whether Dr Vicente felt the plaintiff could go back to work, the plaintiff said she always tried to look good to Dr Vicente. The plaintiff tried to get Dr Vicente to say things to her that she wanted to hear – “like yes she was getting better”. She did not tell Dr Vicente the full story because Dr Vicente was a very emotional lady and “it seemed like she felt the pain.”
24 The plaintiff told Dr Vicente she was better and she could do it. The plaintiff did not recall Dr Vicente saying she could return to work, but not with the first defendant.
25 The plaintiff agreed that the last time she worked for the first defendant was in February 2004.
26 The first defendant referred the plaintiff to psychologist, Louise Bailey for counselling. Ms Bailey then referred the plaintiff to psychiatrist Dr Wood in February 2004. He prescribed medication and diagnosed Post Traumatic Stress Disorder (“PTSD”). The plaintiff was actually suicidal in the early days of seeing Dr Wood and she rang on one occasion and asked for help.
27 In February 2004, the plaintiff was also having massage from a naturopath to assist with stress and help her relax.
28 The plaintiff agreed Dr Wood suggested she did not try to go back to the first defendant because it would make her worse.
29 Dr Wood certified the plaintiff fit to attend rehabilitation in September 2004. At that stage, the plaintiff “always wanted to try and front up and present like she was getting better and feel like she was capable, so she tried to tell him and the medical people she was getting better, but she really was not and she was not developing like she has in the last short while.” At that time, the plaintiff’s family and friends were quite concerned about her.
30 The plaintiff agreed that in September 2004 she had returned to playing volleyball but she remembered her friend dragging her out of bed to play and it was a very difficult time.
31 The plaintiff could recall seeing Dr Botvinik for a medico-legal examination in 2006. She agreed that at times her condition was up and down and she could have been doing really wonderfully in 2006 when she saw him, but she could not remember what she was like at that time.
Return to Work Attempts
32 The plaintiff agreed that light duties certificates were first given in March 2007 “because she pushed for that to happen.”
33 The plaintiff’s first attempt at work was at butcher’s shop in Berwick. The work involved crumbing chicken and serving customers. She did this work for a few hours for a couple of weeks. She got a bit of a boost from doing this work and thought she could do better and could do more.
34 The plaintiff then tried to do some casual work in customer service at Westfield working part time and only did this work for about six months. She has been advised by her solicitors that she attempted this job in May 2007 and worked until late November 2007. She could recall she struggled with this work because of the stress.
35 In examination-in-chief, the plaintiff described problems working at the concierge desk at Westfield. She had to answer the telephone and serve customers. There were two way radios on which she had to call security guards when there were incidents in the shopping centre. These incidents included alcohol or syringes in the toilets, lost children and fights breaking out. It was a difficult job and there was a lot to manage.
36 The plaintiff tried to hide her problems, but in the morning before going to work she would actually bring up bile. At work, she looked at the clock all day. At lunchtime, she hid in the trolley room to have a break. She put on a brave face, really, and just kept going. She stopped working because it was difficult
37 In cross examination, the plaintiff denied her memory was fine when she was working at Westfield, saying it had been absolutely dreadful since the incidents with the first defendant. She had “lost so much and just in her day to day living it had been extremely hard”.
38 The plaintiff “very, very strongly disagreed” with the suggestion her concentration was not poor when working at Westfield. She explained she struggled on a daily basis and she had to put all of herself into everything she did. This meant she was terribly drained after a three or four hour shift because she did so much checking and rechecking to actually do her job.
39 The plaintiff agreed that she had not complained to any doctor of problems coping with work at the butcher’s shop or at Westfield, because “that is how she is and she tried to cover up things and make herself better”.
40 There was no way the plaintiff would tell fellow workers at Westfield of her problems. Nor would she tell her employer, because she wanted to gain full time employment and asked for every hour of work and she wanted to be recognised as a good worker.
41 The plaintiff’s hours at Westfield varied quite a lot. She tried to do more and more hours and just kept asking for more work because she wanted to be looked upon well by her friends and also to feel like she could do it.
42 Possibly on average the plaintiff earned about $750 per week at Westfield. Some weeks she did a tremendous amount of hours. If the records set out she started on twenty four or twenty eight hours and could work up to forty four hours per week, that would be the case. She knew she just pushed for more hours.
43 The plaintiff actually left this job partly because her hours were dropped and because she could not cope.
The Transport Accident
44 On 6 August 2007, the plaintiff suffered injuries in a motor vehicle collision, fracturing her sternum and injuring her right shoulder, neck and ankle (“the transport accident”).
45 After six weeks off work, the plaintiff returned to Westfield working fourteen hours a week for a couple of weeks and in October, she worked thirty three and a half hours in one week. However before Christmas, her hours were changed as Westfield wanted to retrain new staff. With her hours being cut, the plaintiff tried to get other peoples’ shifts.
46 The plaintiff returned to work after the transport accident too quickly. Her shoulder was really bad and it needed an operation and she did not want to just quit her job. She felt she was moving forward and did not want to go ten feet back. On her return to work, she wore ankle supports.
47 After the transport accident, the plaintiff was in pain working at Westfield but she believed it was the stress of work dealing with the public in the shopping centre that was the major reason she ceased working there.
48 The plaintiff agreed that she wrote an email to Westfield, thanking them for keeping her job open while she was off work recovering from her transport accident injuries.
49 The plaintiff commenced work at Krispy Kreme doughnut outlet in December 2007. She has been advised by her solicitors that she worked there between 3 December 2007 and 26 February 2008.
50 Before the plaintiff commenced this job, she participated in a job trial on 9 November 2007. In a form she completed relating to that trial, the plaintiff set out she expected to work long hours. She felt motivated and was applying for a job so there was no way she was going to say she was unavailable for work. She was going to give the most positive feed back she could and she really would have liked to continue working long term. She wanted to appear capable and competent as she used to be. She wanted to get back to how she was when she was able to do just about everything.
51 In examination-in-chief, the plaintiff said she got the job as she wanted to show people she could do it and it was full time work. The plaintiff’s friend found her the job. The plaintiff was quite proud to think she would be able to do that sort of work.
52 The plaintiff deposed she was put on a three month casual contract basis, but could not cope with the work and was forced to cease in February 2008. She struggled with the stress associated with her work and resigned because of conflict with management. In examination-in-chief, the plaintiff explained she was asked to leave Krispy Kreme.
53 The plaintiff’s job involved doing the registers and ordering doughnuts as well as working in the shop. There was also some physical work lifting trays of doughnuts.
54 In examination-in-chief, the plaintiff described a lot of incidents which upset her at work such as young people standing on the tables and a man urinating in the car park. She had to deal with these types of problems and lots of little things and they just compounded.
55 In cross examination, the plaintiff said she thought the job was going to be just basically retail and not involving a lot of pressure. However, the shop became full and rowdy and people were demanding and there were various incidents and it became very difficult.
56 The plaintiff wanted to progress and just be self sufficient and show everyone she was getting better, even though she was struggling. She felt like an insignificant worthless person when not working.
57 Of course the plaintiff did not complain to her employer, but she told her friends of problems coping. The plaintiff was quite happy to get evidence from them about her problems. She did not tell anyone at work because she did not want to lose her job, and that was the reason she also did not tell her doctor.
58 The plaintiff confirmed she told Dr Epstein of panic attacks, depression and difficulty coping whilst working at Krispy Kreme and that that was the case. She did not tell her treaters at the time as she was trying to cover it up and say that she was coping. She did not say she was not struggling. She did not want to be dishonest. She pretty much wanted to impress her employer.
59 The plaintiff pushed herself at Krispy Kreme and as soon as she got home from work, she just went to bed and slept the whole time until she got up for the next shift. Her life basically centred around just doing her job and eating and sleeping, because that is all she could do.
60 The plaintiff agreed she did not see Dr Wood from May to November 2007 when she was working. She explained this was because she wanted to get on with it and she thought she did not need to see her psychiatrist, but it turned out that she really did. She was just working at that time. She would come home and back and then just have an egg on toast and sleep, so she could get on and get through the next day.
61 The plaintiff has taken Effexor since her problems at work with first defendant.
62 The plaintiff agreed in November 2007 she told Dr Wood of bankruptcy problems. She would have also told him that she had the job as assistant manager with Krispy Kreme as she would have been very proud of it. She could recall discussing going back to work with Dr Wood.
63 The plaintiff accepted that people did not take to her at all at Krispy Kreme, even though in the past she had been well liked. People at Krispy Kreme did not like her at all.
64 The plaintiff agreed that one of the workers at Krispy Kreme made a complaint against her after she had told him to clean a seat using a toothbrush. The plaintiff explained however that was the way she had been instructed by Krispy Kreme to carry out that particular task.
65 The plaintiff accepted that she did not take any time off work whilst at Krispy Kreme. She was forced to leave, but could not cope anyway, “so it actually kind of saved her in a sense.”
66 The plaintiff was asked to leave Krispy Kreme at a meeting for the three month review at end of the probation period.
67 The plaintiff could not recall making a claim on Krispy Kreme in relation to her superannuation policy, but she could remember going to her lawyer and discussing her policy and left it up to him.
68 The plaintiff was shown various documents setting out the terms of employment as an assistant manager at Krispy Kreme. She was unsure about the salary, and thought it was about $600 per week. In re-examination, the plaintiff confirmed her base salary at Krispy Kreme was $39,000.
Taxation Summary
Financial Year Ending Gross Earnings
June 2001 $11,692 June 2002 $29,227 June 2003 $27,037 June 2004 $39,782 June 2005 $28,740 June 2006 $28,190
Financial Year Ending Gross Earnings
June 2007 $32,551 June 2008 $36,517 June 2009 $18,985 June 2010 $10,728 June 2011 Not applicable
69 Dr O’Toole became the plaintiff’s general practitioner in March 2008. She knew him from her work with the first defendant.
70 Shortly thereafter Dr O’Toole began to certify the plaintiff for TAC payments. The first certificate in March 2008 mentioned the plaintiff’s physical injuries.
71 The plaintiff agreed she had ongoing problems with her shoulder up until the surgery in July 2008 and she underwent two cortisone injections in her shoulder. She had to stop playing volleyball because of her ankle and shoulder pain.
72 In July 2008, the plaintiff had right shoulder surgery and until recently was taking quite a lot of medication. She has now basically ceased taking medication as her shoulder pain has improved.
73 The plaintiff has like a dull ache all the time in her right ankle.
74 The plaintiff agreed that her neck is still giving her a problem and she “does not mind admitting more physical pain.” Her neck continued to be stiff and she thought “it’s a lot of stress.” She did not know why she had not mentioned neck pain in her affidavits. She has always had a very high pain threshold before the work injury but now it is lower.
75 The plaintiff agreed she was prescribed Panadeine Forte and Panamax as a result of her physical pain after the accident.
76 The plaintiff was last prescribed OxyContin about two years ago and she had in fact returned those tablets to the chemist.
77 In recent times, the plaintiff’s shoulder pain has improved. She had been able to reduce the medication nearly entirely and only takes an occasional Panadol.
78 The plaintiff received some loss of earnings benefits from the TAC because of her transport accident injuries. Payments were ceased in August 2010.
Ongoing Mental Problems
79 The plaintiff deposed in May 2009 that she continued to be plagued by depression and anxiety. She had difficulty sleeping and then during the day she remained very tired. She thought about what happened at work. As a result of her anxiety and depression, her life had been completely destroyed due to the work incidents. She was then was then taking Effexor and when she did not take it, she struggled.
80 In her August 2010, the plaintiff deposed that she continues to suffer from the effects of her depression. At times she is teary.
81 The plaintiff’s memory is very poor and she has to try and write things down but often forgets that she has written things down. She cannot recall dates very clearly or things that she has done. She finds this situation very frustrating.
82 In cross examination, the plaintiff asked if she could write down dates and questions because she could not remember what she had been asked and she had difficulty answering.
83 The plaintiff’s concentration is also very poor. She can only read for about ten or fifteen minutes and cannot watch a one hour television show. She does not seem to be able to finish things she has started.
84 The plaintiff’s sleep is interrupted. She is tired during the day and tends to nod off. She suffers from sleep apnoea and requires a CPAP machine. She also suffers from fatigue.
85 At times, the plaintiff feels useless, worthless and she is tearful. She lacks self confidence. Sometimes, when she goes out, she tries to over compensate for that situation by trying to befriend people and talk to them. She tries to push herself to go out.
86 On occasions, the plaintiff cannot leave her home. She seems to lack motivation and cannot get dressed at times. She has difficulty dealing with deadlines. For example, she cannot make some appointments because she gets too anxious in the hours beforehand. At times she cannot move and she just sits.
87 The plaintiff suffers from constant anxiety. She has panic attacks most days and she is very uneasy away from her home. At times she feels sick with anxiety and sometimes she vomits in the morning.
88 The plaintiff deposed that in 2006, her marriage broke up after eighteen years. She believed that certainly in part was as a result of her psychiatric state.
89 The plaintiff tends to do her supermarket shopping at night at about 11.00 pm because she knows the supermarket staff who work that time and she feels safer.
90 The plaintiff is constantly worried that people will be angry with her that she has done the wrong thing or that she has made a mistake. She gets stressed very easily. She does not believe she could currently work, because of her depression and because of lack of concentration and memory associated with her depression. While she tries to stay positive, she does not believe she is improving.
91 In examination-in-chief the plaintiff confirmed she continues to suffer from fatigue. She takes a lot of vitamins and also has massage, kinesiology and other natural therapies.
92 In examination-in-chief, the plaintiff said she is a lot better now than she was in August last year. She agreed in cross examination that she has been improving over the last year or so and that improvement was reflected in the decrease in medication.
93 The plaintiff is restricted in her ability to look after her house. She has been unable to do heavy aspects of housework because of her shoulder pain, but in relation to the normal running of a household, this has been hard with her depression. She does not seem to be able to get things done. She has a friend who comes in and helps her organise things, even light housework.
Work Future
94 The plaintiff attempted an integration aide course in 2006. However she could not cope with the course and the reading and concentration involved. She had to read and re read the course material but it did not sink in. The plaintiff was also worried she was not going to be good enough to contribute to group activities in the course.
95 The plaintiff could recall Resolutions suggesting a number of jobs in 2007 but she could not remember discussing those jobs with Dr Wood.
96 In examination-in-chief, the plaintiff said she wants to work because she wants to be able to be a confident and useful person.
97 The plaintiff explained she had training in Reiki and had worked with her husband in that field which led to volunteer work and then employment with the first defendant.
98 The plaintiff registered a business name, “Kind Thoughts”, in August last year. She hopes to be able to do her own Reiki classes and has bought some office furniture to set up practice rooms.
99 The plaintiff really did not know how realistic these plans were because she has let herself down in the past with other plans.
100 In cross examination, the plaintiff said that the Reiki that she has done in the past was usually for friends. The plaintiff thought she obtained her qualification in about 1997. It is more like a hobby but there are lots of people that make money from Reiki as can be seen from the ads on the internet. The plaintiff would need to do training to be able to teach Reiki.
Treatment
101 In late 2008, the plaintiff came under the care of Dr Hogan, psychiatrist on referral from Dr O’Toole. The plaintiff changed treaters because she got too tired driving to Richmond.
102 Dr Hogan has continued to treat the plaintiff and she sees him every three weeks or so. Sometimes because of her depression, she misses an appointment. She tends to lack motivation.
103 Dr Hogan provides certificates in support of the plaintiff’s Disability Support pension.
104 The plaintiff attended Michelle Cranston, psychologist, on numerous occasions between November 2008 and late 2009.
105 In cross examination, the plaintiff agreed that a lot of her discussion with Ms Cranston related to relationship issues. Returning to work was discussed. The plaintiff agreed she remembered telling Ms Cranston that she deserved compensation but would not have said she was holding off working until her case was resolved. She agreed she told Ms Cranston that Dr Wood said it was not a good idea for her to sue because it would upset her.
106 The plaintiff discussed the work issues with Ms Cranston, because a lot of her relationship problems stemmed from what happened at work.
107 The plaintiff agreed she shared everything with Ms Cranston. She was trying to get better, so she was “trying to go to someone and start anew and actually get everything off her chest.”
108 It upset the plaintiff when Ms Cranston “threw in” another diagnosis of Borderline Personality Disorder. Ever since then, the plaintiff “has tried to remove it from her head”. The plaintiff had difficulty telling her doctor about the diagnosis. Her doctor told the plaintiff Ms Cranston should not be giving a diagnosis and she suggested she see another psychologist.
109 Until recently the plaintiff was treated by Dr O’Toole for all her conditions. The plaintiff’s general practitioner is now Dr Moloney.
110 As of August 2010, the plaintiff was taking: Effexor, 3 x 150 milligrams; Valproate, 3 x 500 milligram; and Abilify, 1 x 10 milligram tablet. She took large doses of those medications as without them she was not able to cope.
111 In examination-in-chief, the plaintiff said she no longer takes Abilify. She currently takes Valporate, two dosages of 500 milligrams a day. She has reduced her Effexor intake from three dosages of 150 milligrams, to a total of 300 milligrams, with one 150 milligrams dosage and two 75 milligram dosages. The medication is prescribed by Dr Hogan.
112 The plaintiff continues to have massage treatment which she pays for herself. The treatment is more for her tension but it also relieves her car accident injuries.
Medical Evidence
113 The plaintiff saw Dr Vicente at the South East Health Care in Beaconsfield on 5 May 2003. The plaintiff then complained of difficulty coping at work following a work related incident and requested a Centrelink certificate. She had been given Cipramil samples which she was still taking.
114 On 14 May 2003, the incident at work was discussed again and it was noted an agitated patient had threatened with suicide and aggression to other clients. Dr Vicente noted the plaintiff was initially reluctant to lodge a WorkCare claim and a certificate was issued, including the date of the previous consultation.
115 On 16 May 2003, Dr Tan issued a new WorkCover certificate. He noted the plaintiff did not feel safe at work due to a similar incident in the past and had no motivation to return to work. The plaintiff was very withdrawn, lethargic and found it very difficult to even leave the house. She was advised to continue to taking Cipramil and blood tests were arranged. Further certificates were issued in May 2003.
116 In June 2003, the plaintiff was still depressed and concerned about work. She had started seeing a counsellor arranged through work. A referral to a psychiatrist was discussed.
117 In June 2003, the plaintiff’s symptoms included lethargy, impaired
concentration and marked anxiety. She was not improving despite medication
and counselling.
118 A referral to Dr Dowd, psychiatrist, was arranged, with the plaintiff to continue seeing Ms Bailey, psychologist. The plaintiff continued to attend fortnightly for follow up prescriptions and WorkCover certificates. She also she saw Dr Dowd for weekly or fortnightly sessions.
119 On 11 September 2003, it was noted the plaintiff felt she could cope with a graduated return to work program outlined by HCG Resolutions, which involved reduced hours and administrative duties with extra peer support.
120 On 20 November 2003, the plaintiff stated she had difficulty coping with five hour shifts and her return to work plan was changed.
121 Twice in November 2003, the plaintiff presented suffering from tonsillitis associated with marked lethargy. She was unable to work and her return to work plan was postponed.
122 In December 2003, the plaintiff complained of a persistent sore throat and she was vomiting in the mornings before going to work. She had become increasingly stressed since becoming aware of similar episodes (of the incident she had experienced at work) which had taken place with two clients at work.
123 On 5 February 2004, the plaintiff advised that she would be assessed by Dr Wood, since she was not coping with the return to work plan, which included some pre injury duties. A total incapacity certificate was issued.
124 On 5 March 2004, Dr Vicente noted the plaintiff stated she was feeling slightly better since seeing Dr Wood and Louise Bailey and changing her medication. The plaintiff advised she was planning to continue treatment with them.
125 Dr Vicente concluded the plaintiff’s symptoms were due to her incident at work. She last saw the plaintiff in relation thereto in 2005.
126 Louise Bailey, psychologist, first saw the plaintiff for debriefing on 7 May 2003. Ms Bailey noted the incident involving a very angry young man who had been making threats to kill staff and other clients. The plaintiff and other staff members were exposed to his constant abuse and threats for a prolonged period of time before he was removed from the building.
127 It was noted the plaintiff made a WorkCover claim and was off work for eighteen weeks until a return to work program was initiated. She returned to lighter duties in September 2003 but was not able to concentrate and experienced high levels of anxiety.
128 Ms Bailey’s initial contact with the plaintiff was in May and June 2003. Contact then resumed in February 2004 and the plaintiff was seen on a regular basis, usually weekly, until September 2004. Contact during 2005 was fortnightly until November. During 2007, contact was on a monthly basis and during 2008, Ms Bailey saw the plaintiff on seven separate occasions.
129 In Ms Bailey’s view, the plaintiff presented with symptoms of PTSD including: mood swings; poor concentration; constant fatigue; flashbacks; sleep disturbance; high levels of anxiety; phobic avoidance and panic attacks with secondary development of depression. By returning to work, the events and client contacts were retriggering and exacerbating these symptoms.
130 Ms Bailey noted the plaintiff enjoyed her work and was very motivated to return, but her symptoms became more severe when she did. The plaintiff was very reluctant to use medication and be reviewed by a psychiatrist, seeing this as a sign of weakness, thinking she could fix her own problems.
131 During management, the plaintiff was constantly distressed and her depression and anxiety became more marked. After addressing the trauma, treatment involved a gradual desensitisation program, addressing the triggers that were around the plaintiff’s her work situation. Ms Bailey noted the plaintiff was finding it difficult to drive, leave the house, attend appointments, go to public places and go shopping. A program was put in place to assist with phobic avoidances.
132 Ms Bailey noted the plaintiff’s home was burgled in January 2005 and the improvement in the plaintiff’s condition to that stage was undone, with her feelings of being unsafe and vulnerable.
133 Ms Bailey noted the plaintiff had a sleep disorder and was treated for sleep apnoea and had gained weight due to her lack of exercise and over eating due to her high levels of anxiety. She noted the plaintiff also suffered from constant fatigue and often had trouble staying awake while attending appointments.
134 During 2005, Ms Bailey thought the plaintiff could work with a rehabilitation provider, but she noted that difficulties with WorkCare and the plaintiff’s wages being withheld caused an exacerbation of her symptoms and the plaintiff became paranoid and experienced high levels of anxiety.
135 Ms Bailey understood the plaintiff suffered a shoulder injury in the transport accident. The plaintiff later obtained work at Krispy Kreme in 2007 but was laid off in March 2008 and had not worked since.
136 In her report of February 2009, Ms Bailey concluded that since the attempted suicide incident, the plaintiff had not been able to maintain employment or fully regain her level of pre incident functioning. The plaintiff was fragile and often symptoms would retrigger her PTSD responses to events.
137 Ms Bailey noted that since working with the first defendant, the plaintiff’s life had changed from being a competent mother, wife and employee. She had lived with the loss of her career, health, income and relationship. She was very active and had spent a lot of time caring for others. Now, in contrast, she found it difficult to leave the house on many occasions.
138 These changes in the plaintiff’s life and health issues had occurred from her original PTSD diagnosis and Ms Bailey noted the plaintiff grieved over the loss of her work and her health, both physically and psychologically.
139 Dr Wood saw the plaintiff at the request of the first defendant on 26 February 2004.
140 The plaintiff told him she had been experiencing a sense of tiredness since the trashing incident. She was prescribed Cipramil by her doctor about a week before the attempted suicide incident. Prior to the incidents, the plaintiff felt herself to be very competent and decisive. She had attained significant self definition and esteem from her capacity to assist and be available for others.
141 As of March 2004, Dr Wood thought the plaintiff continued to suffer with significant PTSD symptoms. The plaintiff continued to be avoidant of young people to the degree she suffered profound distress if out of the house or in the car by herself. Her concentration was impaired and she felt like she had no memory. She felt guilty and like a failure. She could not pull herself out of this state.
142 Dr Wood then thought the plaintiff continued to suffer with profound PTSD. He noted typical of very competent persons who are undone by a traumatic event, the plaintiff continued in a state of disbelief that this could happen to her. She had continued to hope she would click out of it and pull herself together. She had been desperate to attend her employment to affirm that she was really all right, but that was constantly exacerbating her PTSD. Her degree of avoidance and paranoia had not abated and secondary depressive symptoms were evident.
143 Dr Wood thought, at that stage, to effectively recover he would advise the plaintiff to cease the return to work, there be an effective psychotropic medication established to enable her to undertake a desensitisation reprocessing therapy with a therapist such as Louise Bailey and the plaintiff be involved in self trust enhancing processes.
144 Dr Wood thought, given the plaintiff’s significant motivation to become well, he would envisage a guided return to work being possible in about four months’ time.
145 In June 2004, Dr Wood reported to CGU the plaintiff had profoundly disabling chronic PTSD with insomnia, hyper vigilance, paranoia, depression, anxiety with panic attacks and phobic avoidance, and re-experiencing of the incident. Those psychological processes were continuous throughout the day and exhausted her.
146 Dr Wood was then reviewing the plaintiff once every four weeks and he was providing total incapacity certificates. He was prescribing Temazepam for insomnia, Clonazepam for panic attacks, Venlafaxine for depression and Olanzapine for hyper vigilance and paranoia.
147 At that stage, he thought the plaintiff was unlikely to progress to a return to work until her symptom intensity was substantially reduced. He noted she was making gradual gain from psychotropic medication and psychotherapy. She was then not coping with basic domestic tasks and requirements. It was noted the plaintiff’s husband had now ceased work to take over the domestic duties.
148 In December 2004, the diagnosis remained chronic PTSD with significant anxiety elements with panic attacks and phobic avoidance symptoms and paranoid elements (with extreme hyper vigilance and self reference/over personalisation). Dr Wood thought that was entirely due to the events at work.
149 On review in October, the plaintiff was doing more outside of her home, but she was experiencing frequent horrific nightmares of entrapment and her daytime hyper vigilance was still significant. At that stage, the PTSD symptoms were reduced but were at a level where a return to work with the rehabilitation provider would not be effective and would actually be detrimental.
150 Dr Wood advised the plaintiff that psychotropic medication modifications would be required and significant resolution of remaining anxiety avoidance, hyper vigilance symptoms made, prior to the plaintiff being able to enter into a more formalised rehabilitation process.
151 Dr Wood then saw the plaintiff in December 2004: twice in February 2005, once in March and April, twice in May, twice in July, twice in August and once in September 2005. Dr Wood’s opinion was unchanged as to the diagnosis and its cause.
152 Dr Wood noted at the end of 2004, the plaintiff and family undertook a change of accommodation. Even with that significant transition, the plaintiff had been beginning to feel much better psychologically but her equilibrium was profoundly undone when her new house was burgled in January 2005.
153 On 8 March 2005, the plaintiff advised she had been diagnosed with a severe sleep apnoea condition. It was noted the plaintiff’s body mass index had substantially increased since the onset of PTSD and, at the time of that diagnosis, was well over thirty five, indicating significant morbid obesity. A CPAP device was fitted in May 2005 to help her sleep. As a result of that, her daytime energy level had significantly improved.
154 However, since the burglary, the plaintiff’s anxiety had been substantially worse. During June and July 2005, her physical condition became unstable and her daytime energy was again unpredictable. It became apparent the CPAP mask was not fitted properly. Dietary measures were vigorously pursued to enable the plaintiff to lose weight.
155 By August 2005, Dr Wood thought the plaintiff had reached a point where she might be able to recommence working with the rehab provider. Just at that point, the plaintiff advised him she had had “a week of horror”, as she had been contacted by the first defendant who had threatened to withhold payment of wages and there was also a psychiatric assessment the following day.
156 Dr Wood noted the plaintiff’s ongoing vulnerability to any sudden letdown or uncertainty in her life and commented that it was thus very apparent and reflected the ease with her primary psychiatric condition that is, chronic PTSD could suddenly exacerbate and distort her psychological function. He continued to provide total incapacity certificates.
157 In a report of March 2008, Dr Wood confirmed the significant and profound PTSD since the incidents and the fact the plaintiff’s life had been further derailed with the subsequent dissolution of her marriage. He noted, despite the plaintiff’s significant efforts to regain employment and independence, her core psychiatric state from her PTSD with secondary anxiety, depressive symptoms, flares/ exacerbates with minimal uncertainty, which occurs in any reasonable workplace setting.
158 Dr Wood thought the plaintiff’s re employment prognosis remained extremely unlikely in the next five years, noting her previous lack of progress. He therefore strongly encouraged the plaintiff be given access to an early release of superannuation benefits in a letter to APRA.
159 Dr Wood reported in June 2008 setting out he had seen the plaintiff after the initial examination in February 2004 on fourteen occasions during that year, twelve times in 2005, fifteen times in 2006, eight times in 2007 and on 29 April 2008.
160 Dr Wood thought the plaintiff’s condition was entirely due to events at her employment with the first defendant. He noted her very motivated attempts to continue in a return to her work stemmed from her overwhelming sense she had failed and that it was a sign of weakness that she could not push through her emotional distress. He noted the plaintiff had only very gradually been able to accept she was not a lesser person in suffering PTSD and also the requirement for psychotropic medicine to lessen and contain her distress.
161 On an attendance in April 2008, the plaintiff clarified she had been involved in a transport accident and suffered a right shoulder injury. She had secured an assistant manager position with Krispy Kreme in late 2007 but was dismissed in March 2008. In that position she had felt undermined and bullied.
162 Dr Wood thought the plaintiff’s ongoing vulnerability to any sudden letdown or uncertainty in her life was very apparent and reflected the ease with which her primary psychiatric condition could suddenly exacerbate and distort her psychological functioning. He noted the plaintiff’s life had disintegrated since the original employment injury with an accumulation of losses. Her psychological stress emanating from the PTSD and secondary morbid weight gain and sleep apnoea had been the core aetiology in all of that.
163 Dr Michael O’Toole first saw the plaintiff on 12 March 2008 regarding her transport accident injuries. He last saw her in July 2011 when he retired.
164 On the initial examination, the plaintiff complained of right shoulder and neck pain and a fractured sternum from the transport accident. She told him she had returned to work as a customer service operator and her work was occasional employment. She had applied for a full time job at Krispy Kreme in December 2007. She was given a three month contract until March 2008 that was not renewed.
165 The plaintiff also complained of a depressed mood, saying she had first become depressed in 2003 after an industrial injury. She said she continued to see a psychiatrist on a regular basis.
166 The plaintiff complained of physical problems on 20 March and 9 April 2008. When seen by Dr O’Toole’s colleague in May 2008, it was noted the plaintiff’s pain and depression persisted.
167 Dr O’Toole diagnosed degenerative disc disease in the cervical spine and also a supraspinatus tendonitis and degenerative disease in the acromioclavicular joint in the right shoulder.
168 Dr O’Toole thought the plaintiff had a depressive illness which was pre existing and appeared to have been aggravated by the transport accident.
169 During 2008, the plaintiff continued to complain of persistent cervical pain, right shoulder and right ankle pain. She complained of persistent depression which had been present for a number of years. Dr O’Toole referred her to orthopaedic surgeons, Mr Broughton and Mr Steele. In November 2008 he referred her to Mr Xenos, neurosurgeon, and referred her in February 2009 to Dr Muir, pain physician. In October 2008, Dr O’Toole referred the plaintiff to Dr Hogan, who diagnosed a depressive illness.
170 As of August 2010, Dr O’Toole thought the plaintiff continued to be unable to do her pre injury work due to her ongoing depressive illness. She continued to take Effexor and Abilify for her psychiatric illness.
171 The plaintiff first saw Dr Hogan, psychiatrist, on referral from Dr O’Toole on 3 December 2008. The plaintiff told him, in the context of her employment with the first defendant she had become unwell and it had become progressively more difficult to get up in the morning and go to work as she was extremely tired and vomited each morning. The plaintiff had had psychiatric treatment from Dr Wood and had been prescribed Cipramil and Effexor by her general practitioner. The plaintiff told Dr Hogan she was not fully recovered but she did take up employment in customer service with Westfield as a casual employee from May 2007.
172 The plaintiff told Dr Hogan of the transport accident and being hospitalised for a few days at Dandenong. There had been much pain from her fractured sternum as well as right ankle and neck soreness. She had pushed herself to walk again after the transport accident. She had been worried about losing her job and had gone back to work despite her physical pain. In November 2007 her hours were cut, previously having worked a lot of shifts.
173 The plaintiff told Dr Hogan she then applied for a job as an assistant manager at Krispy Kreme, believing it would be less stressful. However, it was more stressful than she anticipated. She was not kept on after a trial of three months and had been off work since February 2007.
174 When the plaintiff first saw Dr Hogan, she complained of constant ongoing neck, bilateral shoulder and mild left ankle pain. She also complained of headaches, but not especially troubling or debilitating. Because of her pain she could not vacuum, hang clothes, pick up the washing, play volleyball or drive a car very far, and she needed help with the shopping.
175 The plaintiff told Dr Hogan that she and her husband had separated in February 2006. Her husband was extremely needy. She had been very supportive of him but could no longer be so. She was distressed that she no longer saw her sons. It was stressful for her that she was not capable of working and that was the worst stress, and that she felt lazy and did not want to be seen as getting money for nothing.
176 The plaintiff presented in a depressed mood on examination. She was obsessional in style as an historian. There was no evidence of a disordered thought stream, perceptual abnormalities, delusional ideation or cognitive impairment.
177 On initial presentation, Dr Hogan noted the plaintiff had never fully recovered from the depressive illness but he noted the depressive symptoms were intermittent prior to the transport accident which had involved an intensification of depressive symptoms. He noted the plaintiff’s depressive symptoms from 2003 had not been fully responsive to treatment and she presented with such symptoms in exacerbation in the context of the chronic pain problem.
178 Dr Hogan regarded the plaintiff as diagnostically having presented with a Chronic Major Depressive Disorder and her level of depressive symptoms was such that she would not have been able to do any regular employment. Additional to impairment on the basis of the psychiatric disorder involving poor concentration, depressed mood and low stress tolerance, the plaintiff was markedly limited by her chronic pain.
179 Dr Hogan increased the dosage of Effexor to 450mg together with Valproate, the dosage of which was later increased, with her general practitioner decreasing the plaintiff’s opiate dosage of OxyContin.
180 Dr Hogan noted counselling with the plaintiff had been directed to managing stress, in particular, issues of relationships and assertion.
181 Dr Hogan noted at the time of the transport accident the plaintiff had suffered a protracted Major Depressive Disorder as a result of work stress. She was not in remission of her prior Depressive Disorder but had significantly improved with symptomatology being intermittent at the time of the accident. The transport accident injuries had resulted in a chronic disabling pain syndrome.
182 Given the improvement leading up to the transport accident, Dr Hogan thought the plaintiff would be capable of employment and a possible remission of her prior major depression were it not for the transport accident and the development of chronic pain.
183 Dr Hogan then thought the original work injury could not be regarded as fully responsible for the plaintiff’s current state of health and incapacity but could only be regarded as partially so in that the plaintiff had developed a major depression which had never remitted and had subsequently, after the development of her chronic pain syndrome, been in exacerbation.
184 In the long term, Dr Hogan thought the greater part of the plaintiff’s incapacity to work would be attributable to her chronic pain which had shown no evidence of remitting. In light this, he considered the plaintiff’s current depressive symptomatology would certainly be less severe and it might have been ameliorated to the point she was capable at that time of pursuing work had she not been involved in the transport accident. He attributed twenty five per cent of the plaintiff’s psychiatric presentation to her work with the first defendant.
185 In July 2010, Dr Hogan added Effexor and Abilify to the plaintiff’s medication regime. He confirmed her depressive symptoms since he last reported had been such that she would not have been capable of doing any work. He noted some improvement over the last three weeks with Abilify.
186 On reflection, Dr Hogan thought with further knowledge of the plaintiff’s condition he would take the view her Major Depressive Disorder had been continuous since the work injury despite considerable treatment intervention and that while the development of chronic pain, he believed, could not be wholly excluded as contributing to her current depressive symptoms, he thought a more appropriate estimate for the original work injury would be seventy per cent of the plaintiff’s current depressive symptomatology.
187 In September 2010, Dr Hogan noted that the plaintiff felt that the improvement with Abilify had not been sustained and the dosage was increased and the Valproate was reduced.
188 There were further attendances in October and November. In December 2010 the plaintiff reported feeling worse. On 2 March 2011 she reported more anxiety since the decrease of Abilify. On 28 April 2011 she reported improvement. Dr Hogan noted her presentation was fluctuating throughout the year.
189 Dr Hogan considered the plaintiff had had continuing and undiminished chronic pain, at times intensified with the reduction of Valproate dosage and she had had fluctuating depressive symptoms, somewhat improved at her most recent consultation, although it remained to be seen whether that improvement would persist. He believed the plaintiff’s level of depressive symptoms over recent months was such that she would not be capable of pursuing any employment on psychiatric grounds.
190 As of October 2011, Dr Hogan thought the plaintiff’s ongoing depression remained a consequence of her original work injury together with the chronic pain from the transport accident.
191 In his most recent report of November 2011, Dr Hogan confirmed his earlier views and attributed seventy per cent of the plaintiff’s current presentation to work related factors and thirty per cent to the development of chronic pain.
192 In examination-in-chief, Dr Hogan described the plaintiff’s last visit on 11 October 2011, when she told him she was more depressed over the previous three weeks, with poor concentration and erratic sleeping patterns. She was now almost constantly miserable. He then suggested she increase her antidepressant dosage from May, when it had been decreased.
193 During the time he has treated her, Dr Hogan described the plaintiff’s condition as being of fluctuating intensity. She is better than when he originally saw her some three years ago, but there has certainly been no overall improvement over the last year or two, although she had plateaued.
194 Dr Hogan agreed with Dr Wood’s comments about the plaintiff’s low stress tolerance and her reaction strongly and at length to any adverse events.
195 Dr Hogan was not surprised when the plaintiff wanted to increase her hours at Westfield, because she wanted to think she could cope. He regarded that as consistent with her personality. He could not see the plaintiff as being employable in the foreseeable future. Because of the severity of her ongoing depressive symptoms and their fluctuating nature, he thought it would be hard to see her sustaining any work on a regular basis. Further there was also the problem of chronic pain, which would be likely to go into exacerbation in any physically demanding work.
196 Dr Hogan certainly did not think the plaintiff was ever likely to be capable of any full time employment. He could envisage the possibility at some future time that she might be able to do a couple of half days of voluntary work, but even then he thought her reliability would be an issue.
197 Dr Hogan considered the medication that had been prescribed had had a positive effect. He thought the plaintiff required continuing medication and ongoing review. He noted her desire to decrease her medication intake was indicative of her personality and her desire to demonstrate she was getting better.
198 The plaintiff is currently prescribed 1000 milligrams of Valporate, primarily as an anticonvulsant and also as a mood stabiliser and an adjunct to antidepressants. It also has some properties of relieving neuropathic pain. Effexor was recently increased to 300 milligrams from 225 milligrams.
199 In cross-examination, Dr Hogan confirmed the plaintiff saw him about twelve times to about 24 August 2009 and since then, generally attends each few weeks, every month.
200 Essentially the purpose of medication has to been to stabilise the plaintiff’s mood. Dr Hogan no longer prescribed Abilify, which he had used as an antidepressant agent. He confirmed at one stage Valporate was prescribed at 1500 milligrams and it is now 1000 milligrams. Effexor was earlier 450 milligrams and now it is 300 milligrams.
201 When the plaintiff said she got a lot better in the last year or so, Dr Hogan said if one were to take her presentation at the last consultation, he could not agree that was the case. If she meant that generally over the last year she had felt overall somewhat better, he thought that would be correct.
202 Dr Hogan disagreed in those circumstances his aim would be to reduce the level of medication. He explained when it comes to antidepressants, the usual practice is to continue a prescription for a variable period of one, two or three or more years, once a person gets better.
203 Dr Hogan agreed there are many people on antidepressants in the community who are quite well.
204 Dr Hogan could recall the plaintiff having registered a business name but did not think she had discussed the possibility of working in Reiki. He thought the plaintiff planning to resume some form of part time employment indicated motivation, but he did not know it necessarily altered the plaintiff’s prognosis. He could not exclude one hundred per cent that she would further improve.
205 Dr Hogan was taken to the plaintiff’s attendances between November 2008 and December 2009. He confirmed the contents of his first report and the letter to Dr O’Toole of 27 December 2008. Dr Hogan also confirmed he took a four or five page history on the initial assessment.
206 Dr Hogan agreed that in his first report, it was his view that the plaintiff’s depressive symptoms were intermittent prior to the transport accident, which had resulted in an intensification of depressive symptoms. He agreed that he had described how the plaintiff’s depressive symptoms from 2003 had not been fully responsive to treatment and she presented with such symptoms in exacerbation of the context of her chronic pain problem.
207 Dr Hogan agreed that in that first report, he thought the plaintiff would be capable of work and a possible remission of her prior major depression were it not for the car accident and the development of chronic pain.
208 At that stage, Dr Hogan agreed he thought it was certainly the case that the original work injury could not be regarded as fully responsible for the plaintiff’s current stage of health and her incapacity and he then thought twenty five per cent of her condition was related to work.
209 Having been provided with Dr Epstein’s reports, Dr Hogan reported on 23 August 2010, reflecting upon the question of the contribution of the work injury and the transport accident injury. Giving the matter further thought, he noted that the plaintiff had over time been able to get off prior opiate medication and Mersyndol Forte and overall there had been some diminution in the intensity of her pain problem, but there were still quite significant depressive symptoms. On reflection, he thought he was wrong that her chronic pain was such a driving factor.
210 Dr Hogan confirmed the plaintiff only referred to work related factors at the very beginning of her treatment and that at the majority of subsequent attendances, the complaint has been of chronic pain and work factors did not seem to get much mention at all. However, Dr Hogan stated that the fact that work factors were not mentioned did not indicate that they did not precipitate the plaintiff’s Chronic Major Depressive Disorder. He noted that one does not have to have a continuing preoccupation for stress for that stress to have set off an illness which may be of indefinite duration.
211 Dr Hogan confirmed, prior to the transport accident, the plaintiff was being prescribed 300 milligrams of Effexor. He was then taken to her subsequent work history leading up to the transport accident and the fact that Dr Wood had certified her fit for alternative duties in March 2007. Dr Hogan disagreed that that must indicate she had been in remission as people could be certified in that way when they are not in full remission.
212 Dr Hogan confirmed he certainly thought there was no doubt that chronic pain had been a significant factor in intensifying the plaintiff’s depressive symptoms and agreed with Dr O’Toole’s comments in that regard. Ultimately, Dr Hogan had to agree that the plaintiff would not have been as bad psychiatrically, had she not had the transport accident.
213 In re-examination, Dr Hogan confirmed that the work component of the plaintiff’s Major Depressive Disorder continued to operate in her presentation. There had not been remission and the plaintiff had at no stage reached the stage of recovery.
214 Dr Moloney, at Hallam Family Practice, first met the plaintiff in September 2011. The plaintiff told her of the incident at work. She reported mood and low self esteem and problems being around people. Having met the plaintiff only two months earlier, Dr Moloney thought it difficult to ascertain the connection between the work incident and her current mental state. Dr Moloney thought it possible that that contributed to her current symptoms. She suggested the plaintiff would be unsuitable to work in drug and alcohol, however, it would be reasonable for her to return to work in the future.
Medico Legal Evidence
215 Dr Strauss, psychiatrist, examined the plaintiff on behalf of Cambridge on 26 August 2008.
216 The plaintiff told him that she was better but he thought nevertheless she tended to put on a brave front.
217 On mental state examination, the plaintiff’s concentration was not good because she was emotionally upset. Her memory was reasonable. She was orientated in time, place and person. She was moderately anxious and depressed. Thinking was negative but there was no evidence of any psychosis, delusions or thought disorder.
218 Whilst her situation had improved over the years, Dr Strauss thought the plaintiff had still been left with chronic psychiatric symptoms. In his opinion she had PTSD symptoms but not a full blown disorder. She also had a major depression.
219 Dr Strauss believed the plaintiff’s experiences with the first defendant were primarily the cause of her psychiatric problems, but noted that last year she had a significant transport accident which had left her with chronic pain and this was also contributing, to a much lesser degree, to her psychiatric problems.
220 The plaintiff had told him of severe pain after the transport accident but denied any significant psychiatric problems relating thereto.
221 Dr Strauss believed the plaintiff’s psychiatric problems limited her daily activities of living, social functioning, concentration and occupation. He considered her current treatment was appropriate and should continue.
222 The Medical Panel, on 30 January 2009, found a five per cent whole person impairment resulting from the accepted sleep apnoea condition. The Panel also thought there was a twenty per cent psychiatric impairment resulting from the accepted psychological/psychiatric condition.
223 The plaintiff was examined by psychiatrist Dr Epstein on 12 July 2010 and 20 September 2011.
224 The plaintiff told him of the trashing incident and also the attempted suicide incident.
225 The plaintiff told Dr Epstein that in December 2007 she was working at a doughnut shop on a full time basis. She felt she was not liked by her fellow workers and her employer. She was having panic attacks, depression, and had difficulty coping. She felt that people were against her. She continued to have right shoulder, neck, and right ankle pain.
226 The plaintiff stopped work in February 2008, as her employer did not wish her to continue.
227 On examination, the plaintiff reported right shoulder and neck pain with reduced movement. The plaintiff told Dr Epstein she did her own housework very slowly, and had home help. She had panic attacks most days, and she brooded on what had happened at work and became distressed when talking about it. She felt depressed five days a week. She felt hopeless, helpless, useless, worthless and tearful.
228 The plaintiff was then taking 450 milligrams of Effexor, Valproate 500 milligrams three times a day and Nurofen, Panamax or Mersyndol.
229 On mental state examination, the plaintiff had a very restless manner. Her affect was restricted, and she appeared depressed and anxious, and at times was tearful. She had significant problems with memory and concentration. Her speech fluctuated according to her level of distress. The content of her thoughts was about the damage done to her life by the injuries at work, and she minimised the effect of the transport accident on her mental state. There was no evidence of any thought disorder, hallucinations or delusions.
230 Dr Epstein thought the plaintiff had developed a form of stress breakdown as a result of the work incidents. She had had ongoing coping problems since the work injury. She had a car accident, and denied any significant psychological sequelae, although she did admit to ongoing pain and discomfort, leading to some exacerbation of her depression and some ongoing anxiety as a driver and passenger.
231 Dr Epstein thought the plaintiff had a Major Depressive Disorder, Panic Disorder with agoraphobia, and some symptoms of traumatisation, arising both from her workplace injury and the transport accident. In his view, the quality of the plaintiff’s life had diminished markedly, affecting her work capacity, her relationships and recreational enjoyment.
232 Dr Epstein considered the plaintiff’s current work capacity was nil, and unlikely to improve in the foreseeable future. He thought she required ongoing psychiatric treatment. In his view. her prognosis for improvement was poor.
233 In a subsequent report, Dr Epstein confirmed the Major Depressive Disorder, Panic Disorder with agoraphobia and some symptoms of traumatisation arose from the workplace injury. He thought some symptoms of traumatisation also arose from the transport accident, but it did not contribute to the plaintiff’s Major Depressive Disorder or a panic disorder with agoraphobia.
234 In Dr Epstein’s view the transport accident was, from a psychiatric point of view, a transient event, and had no long term consequences. Considering the effects of the work incidents alone, he thought the plaintiff was significantly damaged and had been left disabled arising from those injuries.
235 Dr Epstein thought the transport accident played no significant part with regard to the plaintiff’s current psychiatric condition, noting that if that accident had not occurred, she would have been left in the same psychiatric state.
236 Dr Epstein re-examined the plaintiff in September 2011 and had available to him Dr Shan’s report of 15 March 2011.
237 On re-examination, the plaintiff continued to brood about what happened at work, and she remained distressed about the situation. She had nightmares and flashbacks about it occasionally. She was still anxious as a driver, but more so as a passenger. She still had right shoulder and neck pain. She had constant right ankle pain. She had panic attacks most days, and felt uneasy away from home. She felt flat, with little self esteem and self confidence, and was restless. Three or four days a week she felt happy and peaceful.
238 The plaintiff said if she had had no work problems prior to the transport accident she might still have problems going back to work because of her physical injuries, but not because of her psychological state from that accident.
239 Dr Epstein essentially confirmed his earlier views. He thought the plaintiff’s current work capacity was nil, and unlikely to improve in the foreseeable future. He thought she required ongoing psychiatric treatment, if only to prevent further deterioration. He thought her prognosis for improvement was poor.
240 In Dr Epstein’s view, the plaintiff was unable to do any of the jobs for which Dr Shan thought she was suited in March 2011 namely enquiry clerk, customer service officer, internal sales, clerk, sales assistant and bank teller.
241 In a subsequent report, Dr Epstein advised even if the transport accident had not occurred it was likely the plaintiff would not have been able to continue working, and hence she had no capacity for work by reason of her work related anxiety and depressive condition alone.
242 Dr Epstein noted that at the time of the transport accident, the plaintiff was working part time as a customer service officer at Westfield, but had difficulty coping. She was anxious at work and had resumed seeing her psychologist every two weeks.
243 The plaintiff returned to work after the transport accident and was being driven to and from work, and she later attempted to work full time in a doughnut shop, but was complaining of both psychological and physical symptoms. The major factor to her leaving that job appeared to have been her psychological state arising from her work injury.
Vocational Evidence
244 Katrine Green carried out a vocational assessment on 19 July 2010 and provided a supplementary vocational assessment report on 18 October 2011.
245 Ms Green thought jobs of retail supervisor, retail sales assistant, Reiki therapist, receptionist/information officer, housekeeper/room attendant, pizza chef, courier, handpacker, shelf-filler and cashier checkout operator were not appropriate for the plaintiff, and they did not constitute suitable employment options.
246 Kay Angel from Flexi Personnel carried out an employment assessment in July 2010. She concluded the plaintiff’s psychiatric condition, namely chronic PTSD, would restrict her in successfully returning to the workforce in any meaningful manner. A further report commenting on suggested jobs was provided in October 2011 where the plaintiff’s incapacity for work was confirmed.
The Defendant’s Medical Evidence
247 Dr Korman, gastroenterologist, reported to Dr Vicente in October 2003 that the plaintiff’s biggest problem was marital, having split and reunited with her husband on a number of occasions. More recently, that had come to a head and the plaintiff had split from her husband.
248 Dr Hogan reported to Dr O’Toole in December 2008. He noted limitations on the plaintiff’s physical activities since the transport accident, and the plaintiff’s depressive symptoms which had become intermittent before that accident, but had subsequently been in exacerbation.
249 He concluded the plaintiff presented with chronic pain and major depressive symptoms now of several years’ duration and that he was now reviewing her on a regular basis.
250 Dr O’Toole reported to the TAC in August 2008, setting out the plaintiff’s transport accident injuries namely a right shoulder injury; fractured sternum and exacerbation of depression. She continued to have pain in those areas and continued to complain of depression. Dr O’Toole advised he thought the return to work depended on the recovery from shoulder surgery. He then thought the plaintiff’s condition was not stable, requiring further physiotherapy and ongoing psychiatric treatment.
251 In June 2009, Dr O’Toole again reported to the defendant, setting out attendances after 12 March 2008, following the transport accident.
252 The plaintiff, in addition to physical symptoms, complained of a depressed mood, saying she had first become depressed in 2003 after an industrial injury.
253 Dr O’Toole advised the plaintiff’s depression had been aggravated by the transport accident and he did not believe her depression had resolved to the pre motor transport accident level.
254 At that stage, Dr O’Toole thought the plaintiff was unable to return to a pre- injury duties, noting she had ongoing chronic pain and psychiatric problems. He did not believe she would be able to cope with the stresses of the workplace and did not believe at that stage she had any work capacity.
The Defendant’s Medico Legal Evidence
255 The plaintiff was examined by psychiatrist, Dr Dharwadkar on behalf of CGU, initially in June 2003 and later in July 2004.
256 At the initial attendance, the plaintiff told Dr Dharwadkar that it was a build up of different things at work, and the last incident with the suicide stressed her. She also mentioned the trashing incident. The plaintiff complained of aggression from the clients from time to time and on initial examination, the plaintiff told him she was just nervous and tired all the time.
257 Dr Dharwadkar noted on mental examination that the plaintiff appeared anxious and her affect was anxious. There was no evidence of delusions or formal thought disorder. The plaintiff had recurrent memories of the incidents at work and reactive anxiety symptoms.
258 Dr Dharwadkar diagnosed an Adjustment Disorder with anxiety symptoms with some elements of PTSD. At that time he thought the plaintiff was totally incapacitated, and needed to be referred to a consultant psychiatrist and her dose of Cipramil increased. He noted the work related incidents were of a threatening and intimidatory nature and were contributing stressors.
259 On re-examination in March 2004, Dr Dharwadkar noted the plaintiff returned to work in September 2003, worked on and off until 2004 and then was not working. She had been taking Solian for three weeks.
260 On examination, the plaintiff told him of the incidents at work and also that her whole life had changed and that her marriage had broken down in September 2003. She said she was worse since the return to work plan in September 2003.
261 Dr Dharwadkar on this occasion diagnosed a PTSD, noting the plaintiff’s condition had worsened since June 2003. He thought she was totally incapacitated and needed to continue treatment with a psychiatrist and psychologist. He thought alternative anti depressants needed to be trialled. He considered at that stage employment remained a significant contributing factor to the plaintiff’s condition.
262 On the final examination the plaintiff told Dr Dharwadkar she was improving. Again, he diagnosed PTSD but still thought she was totally incapacitated and needed continuing treatment. He considered that work remained a material contributing factor to the plaintiff’s condition.
263 Dr Botvinik, psychiatrist, examined the plaintiff in March and August 2005 and last saw her in August 2006.
264 On the initial examination the plaintiff told him of the attempted suicide incident. On examination, Dr Botvinik found the plaintiff’s mood was marked with symptoms of mild anxiety and depression. He did not find any formal thought disorder and noted her cognitive functions appeared to be totally intact.
265 At that stage, Dr Botvinik thought that in four to five months the plaintiff should be virtually free from any significant symptoms of anxiety or depression. He thought her current treatment was quite reasonable and that she was not then capable of returning to her pre injury duties.
266 Dr Botvinik diagnosed residual symptoms of PTSD related to the plaintiff’s employment and he thought she required treatment. The plaintiff told him of a desire to return to work when she felt better.
267 In August 2005, the plaintiff told Dr Botvinik she was gradually, slowly but steadily, getting better and brighter. He was surprised when she expressed her very positive attitude to find suitable work. He then thought she was recovering slowly, but very steadily, and reasonably well.
268 Dr Botvinik thought the plaintiff still suffered from residual symptoms of PTSD but they were now less pronounced, and she openly and honestly admitted she was feeling much better. He thought she should be fit for suitable employment after a gradual resumption of her duties supervised by a consultant psychiatrist and a rehabilitation provider.
269 In his view, the plaintiff’s employment continued to be a materially contributing factor to her current condition, but she should not return to her pre injury duties because it would be a very traumatic experience and she could decompensate.
270 On the last examination in August 2006, Dr Botvinik noted the plaintiff was not as depressed and anxious as she used to be. He then thought she was using low literacy skills as an excuse not to get any employment. He believed she kept improving and that Dr Wood had done a very good job with her.
271 Dr Botvinik noted an additional factor related to the plaintiff’s psychiatric condition was a recent separation from her husband. Dr Botvinik did not make any psychiatric diagnosis at that stage and thought the plaintiff should be encouraged to look more actively for suitable employment.
272 Dr Shan, psychiatrist, initially examined the plaintiff in July 2009 and more recently saw her in March 2011.
273 On initial examination the plaintiff told him of the treatment she had undergone since the work incidents.
274 The plaintiff told him that in 2007, she began to work again with support from her doctor and friends. Whilst trying to take on as many shifts as she could, the plaintiff found herself being made anxious and unsettled by noises and disturbances at work at Westfield. The plaintiff continued to work until the transport accident in August 2007.
275 On examination, the plaintiff did not feel capable of any work. Her mood was depressed and she lacked confidence. She thought there was some improvement through treatment by a psychiatrist and psychologist, but nothing substantial and not to the extent that she felt she could work.
276 On mental state examination, the plaintiff seemed depressed as well as anxious. She thought her personality had changed through her work injury. Perception, insight and judgment were normal. The plaintiff reported problems of recall and concentration.
277 Dr Shan noted that the JSA Vocational Report of January 2007 identified suitable work as being enquiry clerk, customer service officer, internal sales clerk, sales assistant, customer service and bank teller. He noted the plaintiff did successfully attempt work of that nature at Westfield Fountain Gate until the car accident, and in fact it appeared she had returned to work after the accident for a short time.
278 Dr Shan diagnosed a PTSD in relation to the plaintiff’s injuries with the first defendant.
279 Dr Shan noted that before the transport accident, the plaintiff was doing a number of casual shifts at Westfield. She described some residual problems with respect to anxiety, but that was not the reason she ceased work. He thought the plaintiff was fit for those options identified. She was not fit for her old job or similar work. He thought the plaintiff’s employment was still materially contributing to some incapacity for work in that the plaintiff remained unfit for pre injury duties or duties similar to what she did with the first defendant.
280 On re-examination in March 2011, the plaintiff did not indicate any improvement in her ongoing symptoms which were described as depression, sleeping a lot, poor concentration and memory.
281 On examination, the plaintiff seemed predominantly anxious and she confirmed she felt her personality had changed. Insight, perception and judgment were normal and the plaintiff reported problems with recall and concentration.
282 Dr Shan was provided with clinical notes relating to medical attendances in early 2003 which set out the plaintiff reporting marital difficulties and being prescribed Cipramil.
283 Dr Shan noted, despite these entries, the plaintiff maintained her problems were emanating from the workplace and her claim was accepted.
284 Dr Shan noted Dr Hogan writing to Dr O’Toole in December 2008, indicated the plaintiff had pain at that time and that there had been some exacerbation of pre-existing depressive symptoms following the transport accident. Dr Shan noted that after that accident the plaintiff was then referred to Dr Hogan, having previously seen Louise Bailey.
285 Dr Shan noted the plaintiff was started on anti-depressants in the context of her marital problems.
286 Dr Shan believed the plaintiff’s employment continued to materially contribute because the evidence seemed to indicate that when the plaintiff was working in 2007 after leaving the first defendant, she was still on anti-depressants consisting of Cipramil. He thought the plaintiff probably met the criteria for a diagnosis of PTSD, although she did not describe any incidents of actual physical danger at the work place.
287 Dr Shan thought the plaintiff needed to remain under the care of a psychiatrist as long as she took psychotropic medication. He noted she recovered from her complaints in relation to work with the first defendant, to the extent she was able to work in customer service until the transport accident, and thereafter, she was able to work for a little while but then again ceased.
288 Dr Shan noted by then the plaintiff had not been near the former workplace for more than three years. He thought it was quite evident there was an aggravation following the transport accident. Presently, there was an incapacity for work in relation to the employment with the first defendant. He thought the plaintiff could perform all the jobs listed in the vocational assessment, namely, enquiry clerk, customer services officer, internal sales, clerk, sales assistant and bank teller, noting that that appeared to be similar work to what the plaintiff was doing leading up to the transport accident.
Vocational Evidence
289 Dale Scott from Crawford carried out a 104 week vocational assessment in April 2005.
290 Mr Scott noted that medical reports at that time indicated the plaintiff did not have a capacity to return to suitable duties. It was noted the plaintiff’s employment history was varied, including retail and retail management positions, natural therapy, sales marketing and counselling youth work.
291 Mr Scott thought the varied history provided the plaintiff with a broad skills base to work from, however, her lack of formal training, it was noted, may hamper her ability to return to some of her past positions and identified vocational options. He considered a review of those options may be required when the plaintiff did achieve a work capacity.
292 At that stage, the plaintiff was not certified fit for work by either independent medical reporters or her own treating practitioner. The plaintiff then expressed an interest in undertaking some type of voluntary work in a limited capacity.
293 Resolutions provided a vocational assessment report in January 2006.
294 The plaintiff then stated her health had improved out of sight in recent weeks. However, she had been advised to proceed at a steady pace and not pursue a natural urge to jump into something new. She was then receiving WorkCover benefits and having psychiatric treatment and counselling fortnightly, massage weekly, self funded reflexology and massage, and she was taking anti-depressants.
295 It was noted Dr Botvinik, in August 2005, thought the plaintiff was fit for suitable employment on a graduated basis but not with the first defendant.
296 It was noted without a clearance for work from her treaters, at that point, JSA was not an option and it was recommended the plaintiff be referred for re- education based on suitable employment recommendations which complemented identified transferrable skills, abilities and interests.
297 Suitable employment suggested for the plaintiff was a speech pathology aide, a teacher’s aide, integration aide and bank teller.
298 When interviewed by Resolutions in January 2007, the plaintiff indicated she continued to suffer from fatigue and needed to take things at a steady pace and had limited concentration.
299 Resolutions referred to Dr Botvinik’s report of August 2006 where he indicated the plaintiff should be encouraged to look more actively for suitable work, and should be provided with assistance and helped to find it.
300 The jobs of enquiry clerk, customer services officer, internal sales clerk, sales assistant, counter services and bank teller, were identified by Resolutions as appropriate when the plaintiff was medically fit.
Wage Details
301 A copy of “Detailed Preliminary Payslips Record” for the plaintiff for the period 8 April 2001 to 20 June 2008 was tendered together with comparable earnings details of four employees.
302 The plaintiff’s payslips from Westfield from late May to early August 2007 were tendered. The plaintiff worked a maximum of forty four hours per week in the period leading up to July. The last pay slip dated 2 August, set out the plaintiff worked only fifteen hours in that week.
Overview
303 It is not disputed that the plaintiff suffered a psychiatric injury as the result of the incidents at work with the first defendant in the said period.
304 The plaintiff’s claim for compensation was accepted as was her claim for permanent impairment pursuant to Section 98C of the Act.
305 The consensus of medical opinion is that the plaintiff is suffering from either PTSD and/or Major Depression or a depressive psychiatric illness.
306 Medical practitioners who have examined the plaintiff recently – namely treaters Dr O’Toole and Dr Hogan and medico legal examiners Dr Strauss in 2008 and more recently Dr Epstein and Dr Shan – agree that the plaintiff’s work injury materially contributes to her present psychiatric condition.
307 These doctors were all aware the plaintiff suffered injury in the transport accident.
308 The fact that the plaintiff’s transport accident injuries play a continuing role in her psychiatric presentation as Dr Shan and Dr Hogan acknowledge (Dr Epstein minor and Strauss )is not a bar to the plaintiff succeeding in her present application.
309 As Ashley JA said in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraph 58, a consequence may have a multiplicity of causes including a multiplicity of compensable injuries.
310 Provided that the plaintiff establishes that the subject compensable injury materially contributes to her present impairment and its consequences and will continue to do so permanently, then the role of other injuries, does not preclude a court concluding that there is an appropriate casual link between the compensable injury on the one hand and the consequences relied upon on the other.
311 The plaintiff’s work related psychiatric condition has never resolved. Whilst some improvement was noted by Dr Dharwadkar in 2004/5 and Dr Botvinik in 2006, the plaintiff has continued to require anti depressant and other medication of varying dosages, for treatment of her depressive and post traumatic symptoms since the work injury. As Dr Hogan explained, the fact the plaintiff was certified fit for alternate duties in early 2007 did not indicate her psychiatric condition had resolved.
312 I accept that currently the chronic pain from her transport accident injuries is playing less of a role in the plaintiff’s psychiatric presentation. In recent times, the plaintiff’s shoulder pain has improved. She last required Oxycontin two years ago and she has been able to reduce medication nearly entirely and only takes an occasional Panadol. The plaintiff agreed that her neck is still giving her a problem and it continued to be stiff.
313 Having found a compensable injury which materially contributes to the plaintiff’s present psychiatric state, the issue for determination is whether the consequences of the impairment relating thereto meet the test of “severe”.
314 The provisions of Section 134AB(38) of the Act set out the narrative test for determining whether a plaintiff may make a claim for damages for pain and suffering and loss of earning capacity. In relation to the latter additional tests are imposed.
315 The narrative test requires that the consequences of the plaintiff’s impairment when judged by comparison with other cases in the range of possible impairments may be fairly described as being severe.
316 The test requires an evaluation of all the evidence.
317 As President Maxwell set out in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“The weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
318 I found the plaintiff to be a very truthful, honest witness who at times during her evidence was under a lot of stress, but tried to answer questions as best she could.
319 I accept that since the work incidents, the plaintiff has continued to suffer significant psychiatric problems which are subject to flare ups.
320 Whilst the plaintiff says she is a lot better than she was a year ago and there has been some reduction in her medication, Dr Hogan does not share her views as to her reported improvement, due to the fluctuating nature of her condition and particularly in light of her miserable presentation on the most recent examination in October 2011.
321 I accept that the plaintiff continues to experience depression and anxiety. She has frequent panic attacks and feels ill at ease away from her home.
322 The plaintiff lacks motivation. Her self esteem and confidence are low.
323 The plaintiff has difficulty sleeping and then during the day she remains very tired. She suffers from sleep apnoea and needs to use a CPAP mask.
324 The plaintiff’s memory and concentration are very poor with her often having to write things down but often she forgets that she has done so.
325 The plaintiff is constantly worried that people will be angry with her that she has done the wrong thing or that she has made a mistake. She gets stressed very easily. The plaintiff’s vulnerability and lack of tolerance for further stressors mentioned by Dr Wood was confirmed by Dr Hogan.
326 From soon after the said period, the plaintiff has received treatment for her mental condition. Initially she was under the care of Louise Bailey, psychologist and from 2004 to 2008 she had psychiatric treatment from Dr Wood. Dr Hogan, psychiatrist has continued to treat the plaintiff since 2008 taking over from Dr Wood.
327 Since the work incidents, the plaintiff has been prescribed various antidepressants at varying dosages levels, with her present intake of Effexor 300milligrams and Valporate, 1000 milligrams a day. She also takes a lot of vitamins. She has massage, kinesiology and other natural therapies.
328 There is no suggestion from any recent examiners that the need for psychiatric treatment and medication will not continue into the foreseeable future, therefore I am satisfied that the plaintiff’s psychiatric condition, having persisted since 2003, is permanent.
329 As a result of the plaintiff’s psychiatric condition her work capacity is greatly compromised.
330 The plaintiff has limited education and no formal training.
331 I accept that she enjoyed her job as a clinician with the first defendant. She was keen to return to work later in 2003 despite her ongoing mental problems but she was unable to cope with even restricted duties, finally ceasing employment in February 2004.
332 Whilst the plaintiff finally returned to the workforce three years later, she had a lot of difficulty coping with the jobs she obtained at Westfield and then Krispy Kreme.
333 I accept that the plaintiff did not mention her work difficulties whilst working in those jobs to her treaters because she was keen to continue working and try to get back to a normal sort of life and put on a brave front as she described.
334 As Ms Bailey described the plaintiff was very motivated and reluctant to use medication and be reviewed by a psychiatrist seeing this as a sign of weakness, thinking she could fix her own problems.
335 The consensus of medical opinion is that the plaintiff has no capacity for her pre injury work or for suitable employment and that this situation is likely to last into the foreseeable future.
336 Whilst medico-legal examiner, Dr Shan, considered the plaintiff had the capacity to work in a variety of jobs such as enquiry clerk, customer services officer, internal sales clerk, sales assistant, counter services and bank teller, I prefer the evidence of the plaintiff’s treating psychiatrist Dr Hogan, who has seen her regularly since 2008, that the plaintiff could not work in these fields or any other capacity.
337 In Dr Hogan’s view, at best the plaintiff may have a capacity for some voluntary employment for a couple of days a week, but she would be unreliable as to whether she could attend or not.
338 Dr Epstein thought the plaintiff’s current work capacity was nil and unlikely to improve in the foreseeable future.
339 In my view, this interference with the plaintiff’s work capacity because of her anxiety and depression and her problems with memory and concentration, is a consequence which meets the narrative test.
Loss of Earning Capacity
340 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)
at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
341 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 342 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
343 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
344 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
345 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
346 I am therefore required to determine a “without injury” earnings figure.
347 At the time of the hearing the plaintiff’s earnings from personal exertion were nil.
348 Relying on the plaintiff’s earnings of $29,227 in 2001/2 and $27,037 in 2002/3 counsel for the plaintiff submitted that the “without injury” earnings figure was the higher figure of $29,227 or $562 gross per week.
349 In my view, the figure suggested by counsel for the plaintiff is not unreasonable as an example of what most fairly reflects the plaintiff’s earning capacity. Sixty per cent of that figure is $17,536 or $337 gross per week
350 Therefore to succeed in her loss of earnings claim, the plaintiff must show that on a permanent basis she does not have the capacity to earn in excess of $337 gross per week.
351 Counsel for the defendant did not suggest a without earnings figure
Capacity for suitable employment
352 In addition to the occupations set out in the defendant’s vocational assessments, counsel for the defendant submitted the plaintiff had a capacity for work in her own Reiki business, having already taken some preliminary steps in that regard.
353 Whilst the plaintiff may have plans for a career in this field, I do not accept that she has the capacity to make a living from it. In my view, the plaintiff’s obvious motivation does not mean she has the capacity to carry out her plans as Dr Hogan confirmed. Even if the plaintiff commenced such a business, her experience in the field has been with friends and has not been a particularly lucrative one. Further, the plaintiff would require additional training if she were to teach Reiki.
354 I do not accept the plaintiff has the capacity to earn in excess of $300 per week from such a business because of her ongoing psychiatric problems and her lack of experience in this field.
355 I am not satisfied that the plaintiff could work in any of the jobs suggested n the 2007 vocational assessment which relied upon Dr Botvinik’s 2006 examination when he thought the plaintiff had essentially recovered.
356 I prefer the recent vocational assessments of Katrine Green and Flexi Personnel where the authors concluded that the plaintiff has no capacity for suitable employment.
357 The plaintiff has only been under the care of her current treater Dr Moloney for the last two months. Whilst she thought it would be reasonable for the plaintiff to return to work in the future, she did not elaborate on this view, noting she thought the plaintiff was unfit for her pre injury employment.
358 Taking into account all the evidence, in the absence of capacity for suitable employment, the plaintiff has therefore suffered a loss of earning capacity of forty per cent on a permanent basis.
359 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
360 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
361 As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, she is then at large to make a claim for damages for both pain and suffering and loss of earning capacity: see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63].
362 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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