Ritskos v LPK Investments Pty Ltd
[2013] VCC 581
•30 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04347
| FAYE RITSKOS | Plaintiff |
| v | |
| LPK INVESTMENTS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 May 2013 | |
DATE OF JUDGMENT: | 30 May 2013 | |
CASE MAY BE CITED AS: | Ritskos v LPK Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 581 | |
REASONS FOR JUDGMENT
---
SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Compensable injury to the right shoulder – secondary psychiatric condition – prior history of impairment of the right shoulder, and anxiety – denial by the plaintiff of any prior history – plaintiff of borderline intellect – creditworthiness and reliability of the plaintiff – whether the impairment of function of the right shoulder is “serious” – whether the secondary psychiatric condition is “severe”
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(16)(b)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT: The plaintiff is granted leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin | L N Christie & Co |
| For the Defendant | Mr S Loftus | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 12 September 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering and loss of earning capacity damages.
3 Mr N Griffin of Counsel appeared for the plaintiff and Mr S Loftus of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the right shoulder, and a secondary psychiatric condition.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 20-146 and 160-165: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-190: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function” and ss(37)(c) of the Act which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application based upon paragraph (a) are as follows:
(a) The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
8 The relevant considerations which apply to such an application based upon paragraph (c) are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[4]
[4]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (supra)
(b) The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[5]
[5]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than “serious to the extent of being severe” .
(e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i) Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[6] an approach which I intend to follow in the appropriate case.
(j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the test contained in ss(38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[6]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
The Plaintiff's Background
9 The plaintiff was born in October 1966. She is presently forty-five years of age. She is divorced. She has two children, who are now about twenty-two and seventeen years of age. They both live with the plaintiff. They are both full-time students.
10 The plaintiff last attended the Lalor North Secondary School to Year 10 level. At the commencement of the plaintiff's evidence, she said that she is unable to read all that well. It initially struck me as remarkable, given the plaintiff’s level of education and her working record; however, it became very obvious to me that the plaintiff is a person of not only very modest education, but of very modest intelligence.
11 The plaintiff’s intellectual capacity was put into sharp focus by Dr Kennedy, psychologist, who assessed the plaintiff for the defendant on 13 December 2011. In his report dated 15 December 2011, he commented on the plaintiff’s presentation as follows:
“ Ms Faye Ritskos is a 45-year-old woman who presented as very anxious. She was tentative. She presents with probable cognitive difficulties due to dispositional factors and it is possible that she has an undiagnosed intellectual disability. Her comprehension of questions was poor. There is some evidence of dependency and abnormal illness behaviour. There were some panic like symptoms.”[7]
[7]DCB 74
12 Later, in the same report, he made a similar comment as follows:
“… I note however the worker more than likely has an intellectual disability or operates in the borderline range of intellectual abilities. This would need to be assessed formally, however this likely problem is an impediment to return to work although obviously is dispositional and is unrelated to the workplace."[8]
[8]DCB 78
13 The comments and opinions of Dr Kennedy go a long way to explaining why the plaintiff wrestled unsuccessfully with questions put to her during cross-examination. A significant part of the case advanced by Mr Loftus was based upon the plaintiff having an apparently long history of problems with her right shoulder, and with anxiety. She repeatedly denied having such problems or said that she could not remember, and on some occasions gave both answers.
14 Even when the plaintiff was confronted with the clinical notes of Dr Parikh – who is the plaintiff’s general practitioner – which demonstrated that the plaintiff apparently has a long history of problems with her right shoulder, and with anxiety, she again wrestled unsuccessfully with whether that was the case or not. It became particularly apparent when she was examined by Mr Simm, orthopaedic surgeon, for the defendant on 5 June 2012. Mr Simm had a report from Dr Parikh dated 15 March 1995 and his clinical notes demonstrate the long history of problems with the plaintiff’s right shoulder, and with anxiety, but even after putting those matters to the plaintiff, he seemed to be perplexed, because he then said:
“This was a most unusual medical examination, with Ms Ritskos maintaining that there was no past history of right shoulder and right upper limb symptoms. The medical record from Dr Parikh recorded numerous entries from 1992 referring to anxiety, right scapular, right upper limb and cervical symptoms … .”[9]
[9]DCB 33
15 Mr Loftus was driven to describe the plaintiff, in essence, as neither creditworthy nor reliable. He submitted that it was difficult to accept the reports and clinical notes of Dr Parikh, which are littered with complaints by the plaintiff of problems with her right shoulder, and with anxiety.
16 I have given careful consideration to the submissions made by Mr Loftus after reading the relevant reports of examining medical practitioners and reading the transcript of the plaintiff’s evidence. Whilst initially I considered that there was something in the submissions made by Mr Loftus, I have ultimately concluded that the plaintiff is as I described her earlier in these reasons: a person of modest education and modest intellect. That seems to be confirmed by Dr Kennedy, who found the plaintiff to be of probable borderline intelligence. Despite Mr Simm describing his examination of the plaintiff as most unusual, he described her as presenting in a genuine and co-operative manner.[10]
[10]DCB 39
17 I was invited by Mr Griffin to accept the written record contained in the earlier reports and clinical notes of Dr Parikh, and to accept that the plaintiff did in fact suffer problems with her right shoulder, and from anxiety. I do not think there can be any doubt that she suffered from those problems extensively and over a long period of time. Mr Griffin also invited me to accept that the plaintiff was truthful when she made her denials of having those problems or not remembering them, submitting that there is evidence to explain why she gave her evidence in that manner and behaved as she did with Mr Simm.
18 I have resolved the controversy by accepting the historical record of the occurrence of the plaintiff’s previous problems with her right shoulder, and from anxiety, and by concluding that the plaintiff was not attempting to mislead me, but that she is genuinely of an intellect which has left her with little or no insight and memory of her prior history. She also seems to me to be someone who became easily confused when confronted with routine examination during the hearing.
A Compensable Injury
19 The plaintiff said that she worked with the defendant Monday to Friday, and later also on Sundays. She worked up to 48 hours per week. She described the work she performed as being manual work which threw stress and strain on her right upper limb.
20 In her first affidavit sworn 3 May 2011, the plaintiff gave an elaborate description of the work she performed and how that work imposed stresses and strains on her right upper limb, resulting in her suffering an injury. It is unnecessary to set much of that out, given that the defendant has admitted that the plaintiff suffered a compensable injury to her right shoulder.[11]
[11]PCB 21-25
The Relevant Prior Medical History
21 I have read the documents tendered from both Court Books, the transcript of the plaintiff's evidence, and I have considered the submissions of Mr Griffin and Mr Loftus. In doing so, I have concluded that the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder based upon the secondary psychiatric condition which she developed after injuring her right shoulder.
22 However, it is necessary, I think, to set out sufficient of her prior medical history to demonstrate why it is I have reached that conclusion.
23 In about 1990, the plaintiff commenced working for the Ford Motor Company. She developed pain in her right upper limb, for which she sought treatment from Dr Parikh. In his report dated 15 March 1995, Dr Parikh said that the plaintiff developed pain in her right arm which was more localised to her right shoulder and elbow and subsequently, she experienced numbness in the fingers of her right hand. He made several diagnoses, being right lateral epicondylitis, right De Quervain’s tenosynovitis, right shoulder and cervical strain, and right carpal tunnel syndrome.
24 According to Dr Parikh, the state of the plaintiff’s right upper limb was such that he considered she needed analgesics, rest and a regime of exercise such as swimming. It would appear that he was unable to make a diagnosis of the pathological process which produced the symptoms complained of by the plaintiff, but he considered that she had suffered an industrial loss of function in her right arm and neck, which he put as high as 30 per cent.[12]
[12]DCB 126-128, and similar opinion is in his other reports at DCB 129-140
25 The plaintiff was examined by a number of medical practitioners for the injuries she suffered with the Ford Motor Company. She was examined by Mr Troy, surgeon, on 22 October 1991, who considered that she had suffered an acute rotator cuff syndrome affecting her right shoulder;[13] by Dr Strang, physician, on 27 March 1992, who considered that the plaintiff was probably suffering from biceps tendinitis and possible capsulitis surrounding the right shoulder;[14] by Dr Billings on 23 September 1992, who considered that the plaintiff may have suffered a mild capsular strain around the right shoulder joint;[15] and by Dr Baker on 16 December 1994 and 7 July 1995, who, on the occasion of his second examination, considered that the plaintiff was suffering from a right-sided acromioclavicular dysfunction due to ligamentous injuries in her right shoulder.[16]
[13]DCB 104-108
[14]DCB 137-140
[15]DCB 141-143
[16]DCB 109-121, and in particular, at 119-120
26 To varying degrees, each of examining medical practitioners were of the opinion that the plaintiff had suffered an impairment of her capacity to work, and that restrictions should be placed upon her return to work. In the end, that is not so relevant, because the plaintiff obtained work with the Epping Plaza Deli from 1998 to 2005 as a part-time kitchenhand, then with La Ionica Poultry as a sales assistant in a deli for about two or three months, and subsequently, with the defendant in 2006 as a sales assistant in its deli.
27 Whatever injury the plaintiff suffered with the Ford Motor Company, she appears to have recovered sufficiently to be able to engage in the work just described. What is apparent from the medical reports I have just reviewed is that the plaintiff does not appear to have suffered any primary or secondary psychiatric condition resulting from the injury to her right upper limb.
28 It was not until 2005 that the plaintiff developed Anxiety, Depression and Panic Disorder. She saw Dr Parikh on 22 July 2005 and he made that diagnosis. She told him that her supervisor at Continental Poultry Pty Ltd, the same company described by the plaintiff as La Ionica Poultry, had made remarks to her which were upsetting, and had made sexual advances and engaged in other conduct which she considered to be harassment. She was dismissed from her employment.
29 The plaintiff was referred to Dr Jager, psychiatrist, by an insurance agent. He examined her on 19 August 2005. He obtained a history from the plaintiff of the conduct of the supervisor which led to her emotional breakdown. He considered that the plaintiff was suffering from an Adjustment Disorder with Anxiety, but he did not consider that the plaintiff would suffer any permanent impairment because the condition was self-limiting. He expected the plaintiff to fully recover.[17]
[17]DCB 96-100
30 The defendant reproduced the clinical notes of Dr Parikh.[18] It took the very helpful step of translating those clinical notes from handwritten notes to a typed interpretation of them. Mr Griffin examined the translation of the notes, and, having done so, took no objection to the translated notes being tendered into evidence as an accurate record of the notes taken by Dr Parikh. The records commence at a consultation on 27 April 1982, and run through to a consultation on 14 May 2012.
[18]DCB 177-190
31 The first consultation relevant to any problem experienced by the plaintiff to her right upper limb is the consultation on 27 November 1991, in which Dr Parikh noted that the plaintiff had right arm numbness, and anxiety. It is not my intention to attempt to summarise the clinical notes, but it is readily apparent from a close examination of them that the plaintiff attended for treatment for her right arm twice in 1991; eight times in 1992; eight times in 1993; eight times in 1994; four times in 1995; twice in 1996; once in 1997, and once in 1998. The next consultation was on 4 November 2006. On that occasion, the plaintiff complained of pain in both shoulders. The next consultation was on 3 March 2008, which coincides with what the plaintiff said in her affidavit sworn 3 May 2011, in that she began experiencing pain in her right shoulder in about March 2008 due to her work with the defendant.[19]
[19]There are a number of notations in Dr Parikh’s clinical notes which may also be consultations relevant to treatment of the plaintiff’s right shoulder, but the cryptic nature of the notes has led me to take a conservative approach in interpreting what they represent. I have only referred to those which I think clearly demonstrate a consultation relevant to the right shoulder.
32 It was from March 2008 that the plaintiff's right shoulder injury developed, as is evident from Dr Parikh’s clinical notes and the other reports of examining medical practitioners. It is that injury which the defendant admits is a compensable injury, and the injury which the plaintiff says has impaired the function of her right shoulder and has consequences for her in terms of pain and suffering and loss of earning capacity which are “serious”.
33 Dr Parikh’s clinical notes contain a significant number of notes of consultations where the plaintiff complained of suffering anxiety: two in 1993; four in 1994; one in 1995; two in 1996; two in 1998; one in 1999; two in 2001; one in 2002; seven in 2003; two in 2004; ten in 2005; three in 2006, and two in 2007. The next note of such a consultation after the plaintiff suffered the onset of the right shoulder injury in March 2008 was on 29 April 2008, and then a significant number of notes of such consultations thereafter.[20]
[20]I make the same observations I did in footnote 19 of the approach taken in interpreting what the clinical notes represent relevant to notations of anxiety.
The Plaintiff's Pre-existing Anxiety State
34 It is now relevant to determine the nature and extent of the plaintiff's anxiety state before March 2008. I am not convinced that the many entries in the clinical notes where there is a notation of anxiety are what they appear to be at first blush.
35 Firstly, the plaintiff was in full-time employment from at least 1998. The only interruption to her employment appears to be the injury she suffered when working for the Ford Motor Company, and when she suffered injury with Continental Poultry Pty Ltd. Otherwise, she seems to have been fully occupied in work.
36 Secondly, the notations of anxiety appear to be associated with passing medical conditions. I propose to give only some examples which I think are representative of the conclusion I have reached. On 4 October 2007 and 21 September 2007, Dr Parikh noted anxiety, but reading backwards, it would appear that the anxiety was probably related to bilateral knee pain for which the plaintiff sought treatment on 30 July 2007, and other medical conditions of dermatitis, loss of sleep and left eye redness for which she was treated between 4 November 2006 and 30 July 2007. Otherwise, the notation on 21 September 2007 bears no description of its cause.
37 Next, on 16 September 2006, Dr Parikh noted anxiety and upper abdominal pain. Between 29 July 2006 and 13 September 2006, the plaintiff appears to have had a urinary tract infection, pain in her upper abdomen and “lethargic depression”. Again, the notation of anxiety bears no description of its cause.
38 Next, and lastly, on 21 November 2005, Dr Parikh noted anxiety with a feeling of weakness. On 7 November 2005, the plaintiff suffered from labyrinthitis. It was a condition from which she had apparently suffered from 3 October 2005. Again, the notation of anxiety bears no description of its cause.
39 The best I can do in reading the balance of the clinical notes, going back to the first entry of anxiety on March 1993, is that the anxiety appears to have emerged as a consequence of some other medical issues for which the plaintiff sought treatment from Dr Parikh. My further reading of the clinical notes is that, after the particular medical issue had passed, so does it appear that the anxiety past.
The Secondary Psychiatric Condition
40 The occasion on which the plaintiff last saw Dr Parikh complaining of anxiety before March 2008 was on 4 October 2007. I have dealt with that in some detail above. The next entry post March 2008 was on 29 April 2008. Like the other entries, it bears no description of its cause; however, what precedes it are complaints by the plaintiff from 3 March 2008 to 11 April 2008 of pain in her right upper limb and neck. She was already in receipt of prescriptions for painkilling medication by that stage.
41 The plaintiff was subsequently treated by Dr Parikh. He prescribed her medication; referred her to have physiotherapy; referred her to have an ultrasound-guided injection on 7 July 2009; referred her to have various radiological examinations and maintained reasonably frequent contact with the plaintiff by way of consultations, as is demonstrated by his clinical notes.[21] The plaintiff ceased working in June 2009 and has not returned to any gainful employment since.
[21]The plaintiff’s treatment is also described in detail in Dr Parikh's seven medical reports at PCB 44-70L.
42 Dr Parikh referred the plaintiff to Dr Piperoglou, psychiatrist. The plaintiff first saw him on 22 March 2010. The notations of consultations with Dr Parikh in January leading to March 2010 demonstrate that the plaintiff was experiencing pain in her right shoulder, difficulty with sleep, feeling upset, not feeling well and suffering from anxiety.[22]
[22]DCB 187
43 Dr Piperoglou provided four reports outlining his treatment of the plaintiff from the first consultation he had with her, until 5 March 2013. It would appear that he saw the plaintiff approximately monthly from March 2010. His last report dated 19 April 2013 appears to me to summarise the treatment he provided the plaintiff, and his opinion. In relation to diagnosis, he said the following:
“ From the psychiatric point of view, Ms Ritskos continues to be suffering from a Chronic Adjustment Disorder with Anxiety and Depressed Mood, chronic migraines precipitated by her high anxiety levels and a Chronic Pain Disorder of the right shoulder associated with both psychological factors and a general medical condition. Psychological factors and the general medical condition have important roles in the onset, exacerbation or maintenance of the pain.”
44 Dr Piperoglou prescribed the plaintiff a variety of medication. He is presently prescribing her Paxam (an anti-anxiety medication); Esipram (for depression); Valdoxan (for depression and sleep disturbance) and Mersyndol (for headaches/migraines). He noted that she also takes a fish oil supplement for her headaches, anxiety and problems with attention and concentration. She is now also taking iron supplements because blood tests disclosed that she showed borderline low tissue iron stores.
45 Dr Piperoglou then provided the following prognosis:
“ From the psychiatric point of view, I am of the opinion that her injury is likely to be long-term and most likely permanent. She certainly still suffers from residual chronic anxiety, depression, chronic pain and other psychosomatic symptoms including migraines, tiredness and dizziness. If she were not having psychiatric treatment, her condition would be significantly worse. There has only been a partial improvement in her symptoms with psychiatric treatment but no further improvement since the time of the last report.
…
In my opinion, as stated in my prior report, Ms Ritskos is a poor rehabilitation prospect taking into account her injuries (physical and psychiatric) and such other factors as her age, work history, job skills and limited education including poor reading and writing skills. She has an extremely low likelihood of obtaining employment on the current labour market and is thus most likely totally and permanently incapacitated for all suitable employment.”[23]
[23]PCB 102c-102d
46 Dr Seward, psychiatrist, examined the plaintiff on a medico-legal basis on 27 March 2012 and on 26 February 2013. She obtained a lengthy history from the plaintiff which seems to me to broadly accord with how the plaintiff suffered injury, her general medical treatment and her psychiatric treatment. After examining the plaintiff, Dr Seward diagnosed that the plaintiff was suffering from a Major Depressive Disorder with a Pain Disorder associated with both psychological factors and a general medical condition. She was of the same opinion as Dr Piperoglou, that is to say, that the plaintiff is not capable of returning to her pre-injury employment and is totally unfit for work in suitable employment.[24]
[24]PCB 111a-111i, and in particular at 111g-111i
47 It would appear that Dr Parikh was of the opinion, based on both the injury to the plaintiff’s right shoulder and her psychiatric condition, that her prognosis was poor, not likely to improve and that she was not fit her pre-injury employment nor suitable employment.[25]
[25]PCB 70f-70g
48 The plaintiff was examined by Dr Stern, psychiatrist, for the defendant on 13 September 2010 and 21 June 2012. The history taken by Dr Stern is somewhat shorter than the histories recorded by Dr Piperoglou and Dr Seward; however, he appears to have essentially understood how the plaintiff suffered injury. After examining the plaintiff, he considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was aware of the report of Dr Parikh dated 28 October 2005 and its reference to a past history of a psychiatric condition. Like the consultation with Mr Simm, the plaintiff denied having any past history of injury. Nevertheless, Dr Stern was of the opinion that the plaintiff was psychiatrically incapacitated for all work. He considered that the stressor which was causing the persistence of her Adjustment Disorder was the continuing pain she was experiencing in her right shoulder.[26]
[26]DCB 65-70
49 Dr Kennedy examined the plaintiff on 13 December 2011. The history taken by Dr Kennedy is somewhat shorter than the histories recorded by Dr Piperoglou and Dr Seward; however, he appears to have essentially understood how the plaintiff suffered injury. His opinion is considerably different from the opinions of Dr Piperoglou, Dr Seward and Dr Stern. He was of the opinion that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, some panic and agoraphobic symptoms, and abnormal illness behaviour. He considered that the plaintiff could work in alternative work.[27]
[27]DCB 71-80
50 Dr Kennedy provided a supplementary report after being provided with the reports of Dr Jager, Dr Parikh, Mr Simm, and Dr Stern. He considered that the plaintiff would have suffered an Adjustment Disorder with depressive and anxiety symptoms in the absence of suffering a physical injury in March 2008. He concluded by saying that her psychiatric condition was dispositional, that is, relating to her background and not relating to her work with the defendant.[28]
[28]DCB 84-91
51 Bearing in mind the opinions of Dr Stern that the stressor which was causing the persistence of her Adjustment Disorder was the continuing pain she was experiencing in her right shoulder, I propose to turn shortly to some of the other medical evidence which I think demonstrates that the plaintiff has a persisting physical problem affecting her right shoulder.
52 The foregoing is certainly the opinion of Dr Parikh.[29] That opinion is shared by Mr Brearley, surgeon, who examined the plaintiff on 23 April 2010 and 13 April 2012. He considered that the plaintiff was suffering from shoulder dysfunction resulting from subacromial bursitis with associated impingement and degenerative changes in the acromioclavicular joint.[30] Also by Mr Kelman, orthopaedic surgeon, who examined the plaintiff on 5 February 2013. He considered that the plaintiff was suffering from a chronic impingement syndrome affecting her right shoulder.[31]
[29]PCB 70f-70g
[30]PCB 83c
[31]PCB 111o
53 The defendant had the plaintiff examined by a number of medical practitioners. The first is Dr Fraser, rheumatologist, who examined the plaintiff on 23 September 2009 and 24 July 2012. After his first examination, he considered that the plaintiff had probably suffered right rotator cuff syndrome secondary to subacromial bursitis, but after examining her on the second occasion, he did not consider that she had any ongoing work-related injury.[32]
[32]DCB 2 and 8
54 Dr Wyatt, occupational physician, examined the plaintiff on 27 January 2010. After she was provided with a quantity of reports relevant to the plaintiff's prior history of right shoulder problems, she considered that the plaintiff had a longstanding right shoulder problem, and that her employment with the defendant was a flare-up, resulting in a worsening of her symptoms which gradually abated.[33]
[33]DCB 17-18
55 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 14 September 2010 and 2 July 2012. He was provided with a quantity of reports relevant to the plaintiff's prior history of right shoulder problems. It would appear that he considered that the plaintiff was unco-operative during his examination of her, and, additionally, his awareness of her prior history led him to conclude that she was suffering from Pain Syndrome involving the right shoulder girdle and upper limb, with possible subacromial bursitis.[34]
[34]DCB 26-27
56 Lastly, Mr Simm examined the plaintiff on 5 June 2012. He was provided with a greater quantity of reports relevant to the plaintiff's prior history of right shoulder problems than any of the other medical examiners. Initially, he diagnosed a Regional Pain Syndrome. He did not discount that an underlying subacromial impingement syndrome was a possibility, and when he last commented on the plaintiff's diagnosis, he said that in his experience, patients with a Chronic Pain Syndrome may have an underlying physical condition which may be amplified with an abnormal pain or illness response, leading to the underlying physical condition becoming obscure.
57 I propose to take a rather conservative approach to determining whether the plaintiff suffered, and continues to suffer, from an injury to her right shoulder, even in the face of the admission by the defendant that the plaintiff suffered a compensable injury to her right shoulder.
58 Dr Parikh was undoubtedly aware of the plaintiff’s prior history of suffering an injury to her right shoulder and suffering anxiety. The only other medical practitioner who was completely in the picture appears to be Mr Simm. I propose, therefore, to work from the opinion expressed by Mr Simm. It appears to me that he was fully aware of the plaintiff’s prior history; aware that the plaintiff was denying that she had any such prior history, but, notwithstanding that, he seems to have taken a balanced and fair view when he ultimately reached an opinion that the plaintiff was suffering from a Chronic Pain Syndrome which might well have a physical basis obscured by the nature of the Chronic Pain Syndrome. Mr Shannon was exposed to the opinion of Mr Simm and appears to share the same or similar opinion.
59 It appears to me that it is more likely than not that the plaintiff did suffer an injury to her right shoulder as a result of her work with the defendant. It is more likely than not that it emerged in March 2008, and that it persists. That seems to be consistent with the opinion of Mr Simm, although the predominant condition disabling the plaintiff is her psychiatric condition described by Dr Piperoglou, Dr Seward and Dr Stern.
Serious Injury
60 Mr Loftus submitted that Dr Piperoglou and Dr Seward were not provided with reports relevant to the plaintiff’s prior history of suffering an injury to her right shoulder and from anxiety. He submitted, therefore, that I should not accept their opinions.
61 Mr Loftus also questioned whether I should accept the opinion of Dr Parikh, because in his reports provided for this proceeding, he made no mention of the plaintiff’s prior history. The submission was abandoned because of my challenge to the submission that if it was to be suggested that Dr Parikh deliberately failed to disclose that prior history, then he should have been required for cross-examination and the substance of that point should have been put to him. Dr Parikh provided a number of medical reports relevant to a new injury which arose as at 3 March 2008 when the plaintiff was presented to him complaining of suffering an injury to her right shoulder resulting from her work with the defendant.
62 Furthermore, I have expended some effort in analysing precisely what the prior history comprises in the context of the fact that the plaintiff continued to work until June 2009, when she ceased working altogether. It seems to me that the prior history in terms of the psychiatric condition which now plagues the plaintiff is not particularly important.
63 Therefore, I do not consider that the opinions of Dr Piperoglou, Dr Seward and Dr Parikh regarding the nature and extent of the psychiatric condition now plaguing the plaintiff, are undermined in any material respect by the fact that they were not aware of the prior history.
64 I now turn more specifically to whether the plaintiff has suffered a serious injury or not. In summary, my reasons for finding that she has are:
· The plaintiff has a borderline intellectual disorder, which I think goes most of the way to explaining why it is that she denied having any prior history. Even when confronted with it during the examination conducted by Mr Simm, she denied that history, as she did during cross-examination. Although an unusual state of affairs, the assessment I have made of the plaintiff is that she was not trying to mislead.
· The plaintiff has a decent working history interrupted by injury, but after suffering injury in the past she returned to employment and persisted with it. I think that suggests that she is a person of some integrity who has a good working ethic. A good working ethic tends to demonstrate something of the nature of the personality of the person being subjected to assessment.
· Dr Parikh has known the plaintiff for a very long time. He accepted the plaintiff at face value and has treated her for an injury which many of the examining medical practitioners in this proceeding have determined as having an organic basis. He certainly has not said anything to doubt the plaintiff’s integrity or ethic.
· The plaintiff persisted with her work, although there were absences after she was injured in March 2008 until June 2009. I think that also says something for the plaintiff’s integrity and work ethic. It was only, or so it seems to me on an examination of the medical evidence, that by June 2009 and into the early part of 2010, that the plaintiff's psychiatric condition was spiralling downwards.
· Dr Piperoglou has had no difficulty making a diagnosis that the plaintiff is suffering from a major psychiatric condition which has required monthly consultations and a raft of medication to treat the many aspects of the symptoms produced by that major psychiatric condition. His prognosis can only be described as poor. It is not a prognosis which stands alone. It is supported by the assessments made by Dr Seward, Dr Parikh and also by Dr Stern, although it has to be said that Dr Stern had some misgivings about the plaintiff because she did not inform him of her prior history.
· The plaintiff swore three affidavits, on 3 May 2011, 3 August 2012 and 24 April 2013, in which she has set out the symptoms of the psychiatric condition and how she is affected. On the basis of her affidavits, and on the objective assessment made by Dr Piperoglou, I accept that the plaintiff is anxious and depressed; suffers panic attacks; suffers headaches; has lost energy; feels frustrated by the psychiatric condition; has suffered interference with her memory and concentration; is unable to work and has suffered a high level of interference with her capacity to function in a social and domestic setting. Lastly, the plaintiff is, as I have already described it, on a raft of psychiatric medication which seems now to be her lot for the foreseeable future.
65 I accept the opinions of Dr Piperoglou, Dr Seward, Dr Parikh and Dr Stern that the plaintiff is effectively unfit for suitable employment. Although that is a question of fact and law for me to determine, the weight of opinion is so strongly in favour of that conclusion that I have no hesitation accepting that evidence, and the evidence of the plaintiff, that she is essentially totally and permanently disabled by her psychiatric condition.
66 Therefore, I find that the plaintiff has suffered a psychiatric condition as diagnosed by Dr Piperoglou. I find that the psychiatric condition is a permanent severe mental or permanent severe behavioural disturbance or disorder consistent with the statutory test in ss(38)(c) of the Act.
67 In these circumstances, and in accordance with Advanced Wire & Cable Pty Ltd v Abdulle,[35] a finding that the plaintiff has suffered the requisite degree of loss of earning capacity arising from an injury does not then require me to determine the question of pain and suffering consequences separately.
[35]Supra
68 I am not satisfied that this is a proceeding to which Petkovski v Galletti[36] applies; however, even if there is a basis to find that the plaintiff had a persisting anxiety state, rather than an anxiety state which was specific to a particular medical condition she suffered from time to time which appeared to pass, then upon the application of the principle in Petkovski, I find that the plaintiff had an anxiety state of no greater moment than I have just described. If it was persisting, then the extent of the aggravation was enormous. The plaintiff went from someone who was working, and fairing tolerably well, it would seem, to someone who has been rendered almost a smoking wreck. I have no hesitation in finding that the impairment caused by the aggravation easily satisfies the principle enunciated in Petkovski.
[36][1994] 1 VR 436
Conclusion
69 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
70 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
---
0
2
0