Rivera v Victorian WorkCover Authority
[2025] VCC 999
•22 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-05768
| MAURICIO RIVERA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 June 2025 | |
DATE OF JUDGMENT: | 22 July 2025 | |
CASE MAY BE CITED AS: | Rivera v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 999 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – mental or behavioural disturbance or disorder – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Stevens v DP World Melbourne Ltd [2022] VSCA 285; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Findlay v Transport Accident Commission [2025] VSCA 126; Transport Accident Commission v Katanas [2017] 262 CLR 550; Katanas v Transport Accident Commission [2016] VSCA 140; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica with Ms N Hanna | Karlos Lawyers |
| For the Defendant | Mr B R McKenzie | MinterEllison |
HER HONOUR:
Introduction
1The plaintiff, Mr Mauricio Rivera, is a sixty-seven-year-old former printer and machine operator. He claims he suffered psychological injury in the course of his employment with Tape Printers of Australia Packaging Pty Ltd (“the employer”) between 2018 and 22 July 2022. He alleges his injury was caused by being required to perform excessive work, by verbal abuse, bullying and harassment.
2Mr Rivera seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).
3For leave to be granted, Mr Rivera must demonstrate that the permanent impairment consequences of his compensable psychological condition are “severe”.
4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted Mr Rivera suffered a compensable psychological injury in the course of his employment. The VWA contested the application on the basis that Mr Rivera was not a reliable witness, his condition is not permanent, and the impairment consequences of the injury do not meet the statutory threshold.
5The issues for determination are:
(a) What are the impairment consequences of Mr Rivera’s compensable psychological injury?
(b) Are those impairment consequences permanent in the requisite sense?
(c) Are the permanent impairment consequences “severe”?
6The relevant legal principles are well known and were not in dispute.
7For the reasons that follow, I find Mr Rivera has not satisfied his onus to establish the permanent impairment consequences of his compensable psychological injury are “severe”.
Background
8The following matters of background are not, I believe, controversial. As far as any part was contested, these represent my findings save where indicated.
9Mr Rivera was born and brought up in the Philippines. He left school aged thirteen years.
10After leaving school, Mr Rivera assisted his parents with their food business for about five years. He then undertook factory work, and work as a “messenger collector”.
11At age twenty-one, Mr Rivera completed a seaman’s course. He then worked as a merchant seaman for about seventeen years.
12Mr Rivera migrated to Australia in 1996, when aged thirty-eight years. He started working as a printer/machine operator for a company in West Footscray. That company was wound up in May 2002, and Mr Rivera’s employment was transferred to the employer.
13Between 2018 and July 2022, Mr Rivera alleges that he was required to complete an excessive workload, was micromanaged, bullied and harassed by the owner of the employer, Mr Slonim.
14Mr Rivera ceased work on 22 July 2022, and has not worked in any capacity since.
15Mr Rivera first sought treatment for his psychological condition from his general practitioner (“GP”), Dr Adrian Castro, in April 2022. Dr Castro provided a medical certificate stating that Mr Rivera was fit to work 38 hours a week, but could not work overtime due to “chest pain and headaches”.[1]
[1]Plaintiff’s Amended Court Book (“PCB”) 114
16Mr Rivera stopped consulting Dr Castro in about August 2022 as the doctor was not willing to deal with a WorkCover claim. Thereafter, he consulted Dr Vijay Navani at Sunshine City Medical Centre.
17Mr Rivera attended six sessions with Dr Kenan Rahmanovic, psychologist, between September 2022 and March 2023. No reports were tendered from Dr Rahmanovic.
18In April 2023, Mr Rivera began consulting Ms Michelle Morris, psychologist. He has continued to see her approximately fortnightly.
19In June 2023, Mr Rivera began consulting Dr Ajith Vidanagama, psychiatrist. He has continued to see him approximately eight weekly.
20Mr Rivera has been prescribed anti-depressant medication for his condition. He currently takes 200 milligram desvenlafaxine daily.
21Mr Rivera lives with his wife in suburban Melbourne.
What are the impairment consequences of Mr Rivera’s compensable psychological injury?
22Mr Rivera relied upon two affidavits sworn by him on 24 May 2024 and 2 June 2025.
23Mr Rivera deposed to the following impairment consequences:
(a) Very low mood and mood swings, being constantly anxious, depressed and withdrawn;
(b) Poor memory and concentration;
(c) Lacking confidence, feeling nervous and traumatised;
(d) Lacking motivation;
(e) Loss of appetite;
(f) Broken sleep, with panic attacks, dreams and flashbacks in the night;
(g) Racing thoughts;
(h) Rumination;
(i) Reduced enjoyment of and participation in cycling and photography;
(j) Loss of libido;
(k) His marriage “is on the brink of breaking down” because his wife can no longer cope with his condition;[2]
(l) He used to enjoy cooking Filipino dishes, but no longer does so as often and no longer invites family and friends over for meals;
(m) Loss of his social circle, and “now only occasionally talk[s] to a few close friends”;[3]
(n) Prefers to stay at home;
(o) No longer enjoys gardening or growing his own vegetables.
[2] PCB 13
[3] PCB 13
24During cross-examination, Mr Rivera:
(a) Could not recall telling Dr Timothy Entwisle, psychiatrist, in September 2022 that he was looking for work elsewhere;
(b) Denied that in July 2023, his psychiatrist suggested he look for alternative employment;
(c) Agreed that in September 2023, he was registered with Seek.com for roles including flexographic label printing work. He denied being regularly contacted by companies seeking flexographic printers, and could not recall telling Work Able Consulting that he had been. He denied saying that he would be interested in that work with a different employer;
(d) Agreed that in 2023, he was interested in mechanical maintenance and repair work, and wanted some training in it, but said his concentration levels “started declining”;
(e) Said that he was interested in undertaking further study to pursue working as a photographer, but he was told it was too expensive;
(f) Agreed that he undertook a basic computer course in early 2024, but said he had difficulty with it because “I’m from the old school … I had low concentration, I had low memory. There were times that I had difficulty understanding what the teacher was teaching.”[4]
[4]Transcript (“T”) 29
(g) Agreed that he undertook a basic welding course in June 2024, but said he had difficulty completing it;
(h) Said he considered working as a hospital orderly but was not given the training to pursue that work;
(i) Said he considered working as a theatre technician but was not given the training to pursue that work;
(j) Sees his two grandchildren every Sunday. He is able to interact and play with them;
(k) Sees his two sisters on special occasions;
(l) Said he avoids friends as much as possible and only meets them once or twice a year. This is because his friends ask what happened in his life;[5]
(m) Agreed that he still attends church each week. He is also part of a group of older people who volunteer at the church monthly. That involves helping the elderly and tidying up;
(n) Agreed that he is able to use public transport;
(o) Agreed that he has a small vegetable patch which he tends to in spring and summer. He mows the lawn, but it is small;
(p) Performs the majority of the household chores including cooking, cleaning, ironing, stacking and unstacking the dishwasher, making the beds, cleaning the bathroom and toilet, hanging out the laundry, taking the bins out, sweeping and vacuuming. So much so that he calls himself a “houseband”;[6]
(q) Undertakes some handyperson activities;
(r) Agreed that he engages in art, but less than before he was injured. He draws still life;
(s) Uses his stationary bike at home, and an app called “Whoosh”. He has three road bikes but said he does not ride on the road or tracks any more, because he does not feel safe due to a loss of concentration;
(t) In October 2023, he went on a cruise with his wife for a month visiting Spain, Italy, France, Croatia, Türkiye and Greece. It was a large cruise ship with thousands of passengers. Mr Rivera said he did not enjoy it. It was put to Mr Rivera that when he got back, he told his GP he was feeling a bit more relaxed.[7] Mr Rivera responded, “relaxed for some reasons”.[8] Mr Rivera agreed that he and his wife used to travel before he was injured, but said that now the trips were to help his mental health problem. He agreed that they travelled to Hawaii in October 2024. In March 2025, they joined a tour group for a nine-day tour from Beijing to Shanghai.
[5]T33
[6]T38
[7]Defendant’s Further Amended Court Book (“DCB”) 147
[8] T48
25Leading Counsel for Mr Rivera put this application on the basis that, absent injury, Mr Rivera would have retired at aged sixty-seven, in May 2025. Thus, he relied upon loss of work capacity between July 2022 and May 2025. No current or future loss of work capacity was asserted. That is, Leading Counsel for Mr Rivera did not rely on any pain and suffering consequence caused by a present or future inability to work, as a flexographic printer or otherwise, in this application.[9]
[9]T137
26This is an appropriate point at which to consider the medical evidence which was tendered.
Treating practitioners
Dr Adrian Castro, GP
27A clinical note of attendance on 30 April 2022, and a medical certificate issued by Dr Castro was tendered. Also, a letter of referral from Dr Castro to Dr Damien Daniel, dated 1 August 2022, was tendered. The referral was for “opinion and management stress at work”.[10]
[10] PCB 38
28Dr Daniel’s specialism was not identified in the proceeding, and there was no evidence as to whether Mr Rivera ever saw him.
Dr John Nguyen, GP
29A letter of referral from Dr Nguyen to Keenan Rahmanovic, psychologist, dated 25 July 2022 was tendered, and clinical notes for attendances upon Dr Nguyen in July and August 2022.
30Dr Nguyen referred Mr Rivera for six sessions of psychological treatment “for adjustment disorder with anxious/depressed features, related to work stressors”.[11]
[11]PCB 33
Dr Vijay Navani, GP
31Two reports were tendered from Dr Navani, dated 10 March 2023 and 10 June 2025. Dr Navani has been Mr Rivera’s GP since August 2022.
32In his first report dated 10 March 2023, Dr Navani noted that he had regularly reviewed Mr Rivera since August 2022. He opined that Mr Rivera suffered from an Adjustment Disorder with Generalised Anxiety and Major Depression with aspects of traumatisation. He reported:[12]
“He has significant ongoing symptoms … He is yet to see his treating psychiatrist and has only had 2-3 sessions with the psychologist.
Currently, Mr Rivera has no work capacity but I do believe with treatment … [Mr Rivera] should regain work capacity but will not be able to return to work with his current employer.”
[12] PCB 39
33In his second report dated 10 June 2025, Dr Navani reported that Mr Rivera had been consistently followed up by Ms Morris and Dr Vidanagama on a very regular basis, without much improvement.
34Dr Navani reported that:[13]
“Around November 2023, … [Mr Rivera] did demonstrate some improvement in his mental state where he felt he could be able to do some work which was less stressful.
He tried to undergo some courses such as basic computer skills, then he had plans to do a theatre technician course. He also undertook a metal welding course, then … [Mr Rivera] also expressed the possibility of a security course and training for an orderly job but his mental health has remained fragile with persistent anxiety, low mood, fatigue and apathy. … [Mr Rivera] struggles to establish routine in the day and feels overwhelmed.”
[13] PCB 108-109
35Dr Navani opined that Mr Rivera was suffering from a Chronic Adjustment Disorder with Major Depressive Disorder and Generalised Anxiety with comorbid Post-Traumatic Stress Disorder. He identified the current functional limitations as:[14]
“… [Mr Rivera] gets anxiety, feels sad, fatigue and apathy.
His memory, concentration and focus is (sic) also impacted.
He still engages with his family and friends but does not derive as much pleasure in these activities.
His self care is reasonable.”
[14] PCB 110
36Dr Navani opined that Mr Rivera was unfit for pre-injury duties.
37As to alternative employment, Dr Navani said:[15]
“This has not been tested in a real world situation and may be difficult to sustain in a reliable and consistent manner due to his low moods, poor concentration, memory and general apathy and poor energy level.”
[15] PCB 111
38On the issue of stabilisation of Mr Rivera’s condition, Dr Navani opined that if the treating psychiatrist had exhausted his treatment interventions, then the condition was stable.
Dr Ajith Vidanagama, psychiatrist
39Twelve reports were tendered from Dr Vidanagama spanning the period 15 June 2023 to 24 May 2025. Dr Vidanagama first saw Mr Rivera in June 2023, and has seen him approximately eight weekly since.
40When Dr Vidanagama first examined Mr Rivera in June 2023, he noted the following on mental state examination:[16]
“… He was casually dressed and reasonably groomed. He was friendly and engaging. It was easy to develop a good rapport. His speech was normal in rate, flow and tone and was coherent and relevant. He described his mood as lowered and miserable. His affect was restricted and dysphoric. There was no formal thought disorder. Thought content was preoccupied with grief related to loss of his long-term employment, feeling being discriminated and not appreciated [for] his hard work. He described anhedonia, lack of motivation and interest, poor concentration and diminished libido. He came out with pervasive helpless themes. There were no psychotic symptoms. There were no intentionally dangerous ideations. He was cognitively intact. His judgement and insight were well preserved.”
[16] PCB 42
41I pause to note that Dr Vidanagama’s findings on mental state examination of Mr Rivera remained broadly the same in his subsequent reports.
42Dr Vidanagama diagnosed a moderate depressive episode, with no acute risk concerns. He advised Mr Rivera to cease amitriptyline, and increased his dose of desvenlafaxine from 50 milligrams to 100 milligrams. He advised the use of melatonin to assist with sleep disturbance.
43In his report dated 27 July 2023, Dr Vidanagama reported that Mr Rivera had noted improved sleep with melatonin, the increased dose of desvenlafaxine had “some positive effects”,[17] and he was finding sessions with the psychologist helpful.
[17] PCB 42
44In his report dated 28 September 2023, Dr Vidanagama noted that Mr Rivera was gradually improving.[18]
[18]PCB 47
45In his report dated 7 December 2023, Dr Vidanagama noted that Mr Rivera “described grievances related to the loss of his job and damage to his dignity and confidence by dismissing him”. He continued to ride his bicycle and he was enjoying his photography.[19]
[19]PCB 48
46In his report dated 8 March 2024, Dr Vidanagama noted that Mr Rivera reported that he had not been cycling as he used to. He had discontinued the desvenlafaxine because of concerns about long-term side effects. He was practising meditation. Dr Vidanagama advised Mr Rivera to resume taking the medication.
47In May 2024, Dr Vidanagama said Mr Rivera reported improved sleep and appetite. He “continued to avoid people as people annoyed him by asking about his well-being. He reported a lack of motivation and interest. He reported improved sleep and appetite.”[20]
[20]PCB 52
48In August 2024, Dr Vidanagama noted that Mr Rivera was exploring whether he could work as a hospital orderly. He had hoped to upskill his photography, but this had been refused by WorkCover because it was too expensive. Dr Vidanagama said that Mr Rivera presented with suboptimal control of depressive symptoms.[21]
[21]PCB 55
49In November 2024, Dr Vidanagama noted that Mr Rivera reported rejection of his serious injury application. His impression at that time was that Mr Rivera presented with “fluctuation of depressive symptoms with psychosocial circumstances”.[22] He advised Mr Rivera to increase the dose of desvenlafaxine from 100 milligrams to 150 milligrams.
[22]PCB 56
50In his report to the VWA in January 2025, Dr Vidanagama outlined his diagnosis of Mr Rivera’s condition as a “moderate depressive episode”. He opined that the prognosis was guarded.
51As to work capacity, Dr Vidanagama opined:[23]
“Given his chronic presentation of lowered mood, lack of interest and motivation, and challenges related to his physical fitness as he gets older and competes with younger people in the trade, it is very unlikely for him to return to the workforce.”
[23] PCB 60
52In his report dated February 2025, Dr Vidanagama noted that Mr Rivera had tolerated the increase in desvenlafaxine to 150 milligrams, but “has yet to see the benefit”. He recommended an increase to 200 milligrams.[24]
[24]PCB 61-62
53In April 2025, Dr Vidanagama reported that:[25]
“… Mr Rivera said he attempted some employment training and not successful of purs[u]e with them with his poor concentration and uncertainty of successful of securing an employment due to his age and efficiency. Mr Rivera reported challenges with a lack of interest and motivation and grievances related to unemployment and social isolation. … .”
(sic)
[25]PCB 63
54In his final report, dated 24 May 2025, Dr Vidanagama opined that Mr Rivera’s ability to handle, deal with or contend with everyday stressors was moderately impacted. His mood was mildly to moderately impacted. There was a mild impact on his concentration, memory and focus, cognitive stamina, ability to respond to change, ability to engage with family, friends and co-workers, interacting with others, and self-care. His perception and judgement were intact and no delusional thinking or disruptive behaviour was noted.[26]
[26]PCB 67
55As to permanence, Dr Vidanagama said:[27]
“Due to the chronic nature of depressive symptoms, partial response to the current treatment, including both medications and psychological therapy, it is likely that his symptoms and functional limitations will persist for the foreseeable future.
…
… Mr Rivera recently increased the dose of desvenlafaxine from 150mg to 200 mg, which is the maximum recommended dose. If there is no adequate response, we need to discuss alternative antidepressants, some augmentation strategies, such as adding lithium carbonate to the antidepressant or a combination of antidepressants. Additionally, novel treatments such as rTMS or Ketamine should be considered if there is a limited response to traditional antidepressants.
…
Given the above background, it is too early to determine whether Mr Rivera’s depressive disorder has reached medical stabilisation.
…
Overall, Mr Rivera’s prognosis of depressive disorder remained (sic) guarded at this stage. Mr Rivera needs to consider alternative treatments as described above, if no clinically significant improvement is seen in the coming weeks. … .”
(emphasis added)
[27] PCB 68-71
56With respect to work capacity, Dr Vidanagama strongly opposed a return to the pre-injury employer. He said:[28]
“… Given his wealth of experience in the trade, it would be more appropriate for him to return to work in the printing industry with a different employer. He may consider a gradual return to work, fewer work hours and fewer days per week, with increased support from his clinical psychologist to improve his coping abilities.
…
… [I]t is not just the illness; other realistic factors, as described, could affect the probability of return to work.
[28] PCB 70-71
Modifiable and non-modifiable factors determine Mr Rivera’s capacity to return to work. Modifiable factors are the optimisation of treatment to resolve symptoms and Mr Rivera’s preparedness and capability of adjusting to a new work environment. Unfortunately, many unmodifiable factors could negatively contribute to the possibility of return to work, including age-related physical fitness and challenges to learn new skills, lack of prior work experience in different fields, demand in the workforce for interested employments and employer-related matters. So, possibility of successful returning to work is unlikely.”
Ms Michelle Morris, psychologist
57Six reports were tendered from Ms Morris. Ms Morris first saw Mr Rivera in October 2023, and has treated him on about thirty-nine occasions (approximately fortnightly).
58In her first report, dated 20 November 2023, Ms Morris diagnosed Post-Traumatic Stress Disorder and Major Depressive Disorder. She said she had treated Mr Rivera with “Cognitive behaviour therapy and acceptance and commitment therapy … [with] minimal improvements to date”.[29]
[29] PCB 72
59Ms Morris reported that she had discussed a return to work with Mr Rivera but he showed “little interest or motivation in returning to a workplace”.[30] Ms Morris opined that occupational rehabilitation would be “advantageous for him and for his psychological health and emotional wellbeing”.[31] Ms Morris opined that Mr Rivera could perform pre-injury duties with a different employer starting at reduced hours and slowly increasing them.[32]
[30] PCB 73
[31] PCB 73
[32]PCB 73
60By February 2025, Ms Morris opined that Mr Rivera had no current work capacity, but thought he should “be assessed by a vocational expert as to what employment may be suitable for … [him] given his age and level of education.”[33]
[33]PCB 74
61In April 2025, Ms Morris stated:[34]
“I understand that Mr Rivera has little or no capacity for employment at this time.
…
… [M]y clinical opinion is that Mr Rivera is unable to consider a return to the workforce at this time.”
[34]PCB 75
62In her report dated 3 June 2025, Ms Morris identified the symptoms experienced by Mr Rivera as follows:[35]
“a.Feelings of sadness, emptiness or hopelessness, low self-esteem and lack of motivation, poor judgment and lack of social engagement.
b.Angry outbursts, irritability or frustration, even over small matters.
c.Lack of interest or pleasure in most or all normal activities.
d.Sleep disturbances including nightmares and insomnia or staying asleep and waking between 3 and 4am.
e.Being easily startled.
f.Feeling tense, on guard, or on edge.
g.Reduced executive function refers to difficulty with mental processes that manage and organise thoughts and actions, including planning, organising, and completing tasks.
h.Feeling irritable and having angry or aggressive outbursts.”
[35] PCB 81-82
63Ms Morris’ diagnosis was an Adjustment Disorder with accompanying Depressed Mood comorbid with Post-Traumatic Stress Disorder, “which are severe in the extreme and are likely to continue for the foreseeable future.”[36]
[36]PCB 83
64Ms Morris opined that Mr Rivera had no capacity for work.
65Ms Morris noted Mr Rivera was “responding successfully to a number of therapeutic interventions that include cognitive and behavioural components”.[37] The nature and extent of the successful response was not identified.
Medico-legal practitioners
[37]PCB 82
Dr Timothy Entwisle, psychiatrist
66A report was tendered from Dr Entwisle dated 28 September 2022. He examined Mr Rivera that day.
67Mr Rivera reported low mood, mood swings, stress and anxiety. He said his sleep was disturbed and he ruminated over work issues. He was lacking motivation, but his memory and concentration were intact.
68On mental state examination, Dr Entwisle noted:[38]
“His mood was anxious but not obviously depressed. His affect was preoccupied and somewhat restricted. His account was not accompanied by distress or agitation. Rapport and eye contact were maintained across the interview.
… Speech was … normal in flow, rhythm and form. Thinking was linear. Thought, possession and form were normal. There was a conveyed sense of workplace stress, conflict and perceived harassment. There were no unusual notions or ideas, evidence of thought disorder or delusional beliefs.
… Memory and concentration were intact.
… There were no perceptual abnormalities noted.
… Insight was present.”
[38] DCB 6-7
69Dr Entwisle diagnosed an Adjustment Disorder with Anxious Mood. He opined that Mr Rivera had a capacity for pre-injury duties and hours at a different workplace.
Dr Dush Shan, psychiatrist
70One report was tendered from Dr Shan, dated 28 November 2023. Dr Shan examined Mr Rivera for the purpose of an impairment assessment that day.
71On mental state examination, Dr Shan noted:[39]
[39] DCB 12-13
“… [H]e described his situation in a calm, measured fashion …
There was some clinical anxiety and depressed mood, in addition to understandable angst with the employer.
…
Thought processes were in the normal range and clear.
Content of thought consisted of the patient’s upset feeling about the circumstances of his departure from the employer which he attributed to behaviour towards him by the employer over a period of time.
…
He currently believes his personality has changed …
Some issues of libido were referred to …
He believes he is now lacking in confidence and would not be capable of doing any work due to concentration issues.
No unusual thoughts were described for a person in his situation.
…
Psychiatric disorders of perception such as hallucinations were not described.
…
It did not appear that the patient had any issues of insight or judgement that were of clinical significance or that he was incapable of making important decisions for himself.
…
He was alert, oriented and showed no disturbance of memory or concentration during the examination itself.”
72Dr Shan diagnosed as Adjustment Disorder with Mixed Anxiety and Depressed Mood. He opined the condition had stabilised.
Dr Leon Turnbull, psychiatrist
73Two reports were tendered from Dr Turnbull, dated 12 May 2025 and 5 June 2025. Dr Turnbull examined Mr Rivera on 7 May 2025 and 5 June 2025.
74In his first report, under the heading “mental state as of 7 May 2025”, Dr Turnbull noted as follows:[40]
“He was polite and cooperative but psychologically and physically slowed.
He looked and sounded depressed to me, he has lost confidence, he struggles to focus, he ruminates heavily, and he thinks negatively of himself.
He wakes during the night ruminating about the events in the workplace and those keep him awake.
He has become irritable and disturbed around his family.”
[40] PCB 94
75Dr Turnbull opined that Mr Rivera presented as a demoralised man who lacked confidence, becomes irritable easily and had lowered concentration. He was depressed and his thinking was slowed. He ruminated heavily on what had occurred. Those factors, he said, served to undermine his functional capacity
76Dr Turnbull diagnosed a Major Depressive Disorder. As to the diagnoses by Dr Entwisle and Dr Shan of an Adjustment Disorder, Dr Turnbull said:[41]
“… We are all essentially saying the same thing, but I think I found him more unwell today than he was when he saw them, and I simply note the time difference of between two and three years between my assessment and theirs.”
[41] PCB 95
77Dr Turnbull was of the view that Mr Rivera’s limitations were likely to continue for the foreseeable future and remain much the same.
78As to work capacity, Dr Turnbull opined:[42]
“While he seems to have given thought to working as a hospital orderly, I find this man depressively slowed in his thinking and physical movements, he lacks clarity of thought, his concentration is not good, and he does not have confidence in himself. My view is that psychiatrically he would struggle in any other workforce, and he would have difficulty taking instruction and acting on instructions in a reliable and accurate fashion.”
[42] PCB 97-98
79In his second report dated 5 June 2025, Dr Turnbull noted a history from Mr Rivera of:
(a) Nightmares a few times a week;
(b) Variable sleep, and sometimes he naps during the day;
(c) Flashbacks, two or so times a day, a few days a week, where he becomes unaware and ignorant of his surrounds;
(d) He spends most of his day ruminating about what occurred at the workplace;
(e) He lacks motivation and that stops him doing things he liked doing.
80Mr Rivera told Dr Turnbull the following about his participation in his cycling group:[43]
“… He used to be in a cycling group, but he essentially became an annoying part of the group as when they stopped to have a break or a coffee, he would tend to discuss what he was ruminating about, which were essentially negative topics around his previous workplace. Thus, these days he feels ‘embarrassed’ to return to what was the main social part of his life.”
[43] PCB 102
81The focus of Dr Turnbull’s second report was a consideration of various alternative jobs.
82Under the heading “Mental State as of 4 June 2025”, Dr Turnbull noted:[44]
“He was reasonably polite and cooperative, but he looked downcast and sounded depressed and he described his mood in those terms.
…
He lacks stamina and energy, he is easily tired, and he lacks confidence in himself.
He is error-prone.”
[44]PCB 102-103
83Dr Turnbull considered a number of vocational options, but concluded that Mr Rivera was unfit to engage in any suitable employment on a reliable and consistent basis.
84Dr Turnbull opined that the prognosis was gloomy and “things are likely to remain much the same”.[45]
[45]PCB 107
Dr Chris Grant, psychiatrist
85Reports were tendered from Dr Grant, dated 1 May 2025, 5 June 2025, and three reports dated 10 June 2025. Dr Grant examined Mr Rivera on 1 May 2025.
86Mr Rivera reported that there had been “no improvement” in his health since he ceased work, and that he felt lonely and depressed. He reported his family were very supportive, but he avoided friends because they “question me about working and what happened”. Mr Rivera reported that he had some sense of humour and capacity for pleasure. Libido was reduced but not absent. Motivation was reduced.
87Mr Rivera reported that he enjoyed a recent overseas trip with his wife. Mr Rivera reported that:[46]
“… [H]e falls asleep quickly and wakes after four hours for no particular reason. He returns to sleep within an hour and then wakes at the sunrise ‘because the window is open in the bedroom’. He sometimes naps for 20 to 30 minutes in the day. He has dream material once or twice weekly, sometimes involving ‘the body language of the employer, these big eyes, looking at me’.
…
He thinks [his] concentration wavers and recall is ‘becoming weak’.”
[46] DCB 26
88On mental state examination, Dr Grant found as follows:[47]
“The major conveyed affect was his contained anger and dysphoria, particularly focused on being asked to work more than his allocated hours at work. There was no loss of emotional control. There was no guilt or self rebuke.
Speech production and thinking processes were normal. Thought content was non-bizarre. There were no delusions. He was not suicidal. Reality testing and judgement or intact.
There were no hallucinations.
Intellect was average and cognition was intact.”
(sic)
[47] DCB 28
89Dr Grant diagnosed an Adjustment Disorder with mixed emotional features.
90Dr Grant opined that Mr Rivera was fit for pre-injury duties and hours with a new employer. He said:[48]
“I doubt that any additional or new treatment will make much difference to his outcome, and indeed I would be reluctant to further medicalise his problem.
The most therapeutic step would be more activity and psychosocial rehabilitation in the community, including a prompt return to work. … .”
[48] DCB 29
91Dr Grant was subsequently provided with further material, including the reports of Ms Morris dated 1 and 3 June 2025, the report of Dr Vidanagama dated 24 May 2025, and the Co-Work Vocational Assessment & Labour Market Analysis Report dated 15 May 2025. In his supplementary reports, Dr Grant said the further material did not cause him to alter his opinion.
Vocational material
92A Work Able Vocational Planning Report dated 26 September 2023, and a CoWork Vocational Assessment & Labour Market Analysis Report dated 15 May 2025 were tendered. Given that Leading Counsel for Mr Rivera accepted that Mr Rivera had now reached his intended retirement age, it is unnecessary to consider his current capacity to work. The reports are, however, relevant to a consideration of Mr Rivera’s capacity for suitable employment prior to May 2025, and with respect to matters allegedly reported by Mr Rivera.
Findings
93Mr Rivera is able to speak, read and write English, but required the assistance of an interpreter for his affidavits and oral evidence.
94Counsel for the VWA submitted that Mr Rivera was not a reliable witness for the following reasons:
(a) When asked about his current pursuit of photography, Mr Rivera said he engages in photography occasionally, and most of the time he does so inside his house. He said he holds the camera and just taps the camera trigger. Mr Rivera was shown eight photographs of Queen Victoria Market posted to a Facebook group called ‘Street Photography’ on 28 February 2025. Mr Rivera agreed that he took and posted the photographs. He said he and his wife “go to the market to shop” on the first Tuesday of the month and it is not that busy.[49] Mr Rivera was shown ten photographs taken of the Moomba parade and crowd, posted on 10 March 2025. Mr Rivera agreed he took and posted the photographs. He said he went to the Moomba parade with his family. He said he could not recall how many hours they were there, but they were there for the start and end of the parade. Mr Rivera was shown a photograph of the moon posted on 10 April 2025. He said that he took the photograph from his garden and posted it. Mr Rivera said photography is how he diverts himself, and is part of his life. He agreed that he used a computer program to edit his photographs. He would post the best photographs he had taken. When it was put to Mr Rivera that his earlier evidence of only taking photographs in the house was untrue, Mr Rivera said:[50]
[49]T24
[50]T28
“… the earlier question was about after about April 2025. Those pictures were actually taken earlier than that.”
(b) When first asked during cross-examination, Mr Rivera agreed that he attends bible study group fortnightly for an hour or hour-and-a-half. When it was put to him that he enjoyed it, Mr Rivera said that he had stopped attending a month prior to the hearing;
(c) Mr Rivera said that he would only drive locally; however, he agreed during cross-examination that he chose to drive himself to the appointment with CoWork in Caulfield North in April 2025, notwithstanding that his lawyers advised him to take an Uber.[51] The following exchange occurred:
Q:“You drove yourself because you knew you could drive yourself there quickly and safely, didn’t you?---
A:I made the decision not to take Uber because I wasn’t ready yet because when you order Uber you have to be ready and I had to take a bath.”
[51]T36
(d) Mr Rivera also agreed that he told CoWork that he did not have a problem driving and could do so with a rest after one to two hours. He said that was because he often drives with his wife and they alternate the driving;
(e) Mr Rivera said that he was previously prescribed a low dose of ketamine. Leading Counsel accepted on his behalf that Mr Rivera had never been prescribed ketamine and Mr Rivera was mistaken;[52]
(f) Despite deposing in his first affidavit that his intended retirement age was sixty-seven, in his oral evidence, Mr Rivera said that he would have worked beyond age sixty-seven if he had not been bullied;
(g) Mr Rivera said in his oral evidence that he had stopped taking photographs outside the house for the previous month. His second affidavit was sworn the week prior to the hearing and he did not depose to a cessation in that activity.
[52]T128-129
95Leading Counsel for Mr Rivera submitted that Mr Rivera found the process of giving evidence difficult. He struggled to understand the questions asked. Leading Counsel submitted this was a product of his lack of concentration and focus caused by his compensable psychological condition. It was submitted that Mr Rivera was doing his best and there should be no attack on his credit or reliability.
96In assessing Mr Rivera’s reliability, I make an appropriate allowance for his diagnosed psychological injury. I bear in mind that a lack of reliability could be a product of the mental injury that arose in the course of his employment.[53] Giving evidence can be stressful for any person, and moreso for a witness labouring under a psychological injury. I also make due allowance for the difficulties encountered due to Mr Rivera’s evidence being given with the assistance of an interpreter. Nonetheless, there were some unsatisfactory aspects to Mr Rivera’s evidence. Some examples were as follows:
(a) In his oral evidence, Mr Rivera’s said that in the month or so prior to the hearing, his condition had deteriorated such that he was no longer able to attend bible study, and had stopped taking photographs outside his home. His most recent affidavit was sworn on 2 June 2025. There was no mention of any significant change in his condition or activities. The recent reports from Mr Rivera’s treating psychologist, psychiatrist and GP did not suggest any deterioration in his condition in recent weeks;
(b) In his oral evidence, Mr Rivera said that he would have worked beyond the age of sixty-seven had he not been injured. In his affidavit sworn on 24 May 2024, he said his retirement age was sixty-seven years. Leading Counsel for Mr Rivera accepted that absent injury, he would now be retired;
(c) In his oral evidence, Mr Rivera said he had been prescribed ketamine previously. Leading Counsel on his behalf accepted that he was wrong about that and he likely confused ketamine with amitriptyline.
[53]Stevens v DP World Melbourne Ltd [2022] VSCA 285
97Mr Rivera had a tendency to overstate his symptoms. For example his account of the extent of the disturbance in his memory and concentration was not borne out by the mental state examinations of his treating psychiatrist, or by Dr Entwisle, Dr Shan or Dr Grant. Although he travelled overseas with his wife prior to his injury, he now suggested their travel after the injury was more a form of treatment for his mental health condition.
98Mr Rivera deposed to the impact his psychological condition had upon aspects of his relationship with his wife; however, no affidavit was tendered from Mrs Rivera.
99In his oral evidence, Mr Rivera did not recall telling Dr Entwisle in September 2022 that he was going to look for work elsewhere.[54] Mr Rivera could not recall telling Work Able Consulting that he was still interested in undertaking flexographic label printing work. He denied being contacted by prospective employers, or telling Work Able that.[55] I find that it is more likely that Mr Rivera did report those matters. I do so because of my concerns as to Mr Rivera’s reliability, and because similar matters are recorded by several doctors/examiners. On the whole of the evidence, I find the situation was that Mr Rivera was able and willing to participate in some basic retraining – computers and welding. He had been looking for jobs and was considering new opportunities and he was frustrated when the retraining he sought was not funded.
[54]T16
[55]T18
100Given the above matters, I approach Mr Rivera’s asserted impairment consequences with some caution. I look for other, objective evidence to support them. In particular, the mental state examinations undertaken by the treating psychiatrist and the medico-legal psychiatrists provide some objective evidence of Mr Rivera’s condition and symptomatology.
101I do not accept the diagnoses of Dr Navani and Ms Morris that Mr Rivera suffers from Post-Traumatic Stress Disorder. First, neither Dr Navani nor Ms Morris sufficiently explain the basis for such a diagnosis. Second, none of the five psychiatrists who have examined Mr Rivera since 2022 have made such a diagnosis. I prefer the opinions of the psychiatrists on this issue, given their specialisation.
102The reports of Dr Entwisle and Dr Shan are dated. They are of some assistance as the mental state examinations recorded in September 2022 and November 2023 make similar findings. Those findings broadly accord with the mental state examination of Dr Vidanagama in June 2023, and thereafter.
103The recent psychiatric opinions are from Dr Vidanagama, Dr Turnbull and Dr Grant. Of those recent opinions, I prefer the diagnosis of the treating psychiatrist to the medico-legal psychiatrists. I do so because Dr Vidanagama has had the advantage of reviewing Mr Rivera on at least twelve occasions since June 2023.
104I accept Dr Vidanagama’s diagnosis that Mr Rivera is suffering from a major depressive episode of moderate severity.
105I accept Dr Vidanagama’s clinical assessment of Mr Rivera’s functional limitations set out in his most recent report. These are described as mostly mild impairments, save for Mr Rivera’s ability to handle, deal with or contend with everyday stressors, which is moderately impaired, and his mood is described as mildly to moderately impaired.[56]
[56]PCB 67
Work
106Mr Rivera worked in the same role since migrating to Australia in 1996. I accept that he enjoyed his work, and was skilled at it. He has an understandable sense of grievance surrounding the circumstances in which he ceased work in July 2022.
107I accept there was a period when Mr Rivera was incapacitated for work after July 2022 by reason of his compensable psychological condition.
108I find that by late 2023, Mr Rivera likely had a capacity for suitable employment. I do so because, Dr Navani noted an improvement in Mr Rivera’s condition at that time, and he reported that Mr Rivera felt able to undertake some work. Dr Vidanagama also noted an improvement in late 2023, early/mid 2024, and Mr Rivera reported to him that he was exploring other employment opportunities. As at November 2023, Ms Morris opined that Mr Rivera was fit to undertake his pre-injury duties with a different employer, starting on reduced hours with a slow increase.
109Doing the best I can on the evidence, I find Mr Rivera likely had a capacity for suitable employment from early 2024.
110Absent his injury, Mr Rivera intended to retire at aged sixty-seven. He is now sixty-seven years old. He does not claim any pain and suffering consequence by reason of any inability to work currently or in the future.
Treatment
111Mr Rivera has seen his psychologist fortnightly since October 2023, and his psychiatrist approximately eight weekly since June 2023. He is currently prescribed 200 milligrams of desvenlafaxine, which is the maximum recommended dose.
112That is a significant amount of treatment.
Sleep
113I accept that Mr Rivera experiences some sleep disturbance by reason of his compensable psychological condition. He has disturbing dreams or nightmares. Dr Vidanagama and Ms Morris contemporaneously noted he reported those difficulties.[57]
[57]PCB 47, PCB 58, PCB 79, and PCB 82
114Mr Rivera deposed to experiencing flashbacks and panic attacks. Dr Navani noted that Mr Rivera reported experiencing flashbacks in his report dated 10 June 2025. Dr Turnbull was given a history of flashbacks. I am not persuaded that Mr Rivera experiences particularly troubling flashbacks or panic attacks given the lack of any significant reference to those symptoms in Ms Morris’ reports and Dr Vidanagama’s reports.
Social function
115I find that Mr Rivera’s social function is mildly diminished.
116He sees his grandchildren weekly, and did not describe any difficulty or loss of enjoyment in his interactions with them.
117He attends church weekly. His religion is an important aspect of his life. He is part of a group of older people at his church who volunteer regularly by assisting the elderly, and undertaking other tasks at the request of the priest. Mr Rivera remains able to attend his fortnightly bible studies class.
118I accept Mr Rivera’s evidence that he retains a few close friends. I accept that Mr Rivera’s social circle is somewhat reduced. In particular, he stopped participating in his weekly cycling group at some point during 2024. In his oral evidence, he said this was because he was asked about what had happened at work. I note that Dr Turnbull recorded a somewhat different history. This was that Mr Rivera was embarrassed because he felt that he had become an annoying member of the group by discussing negative topics about his previous workplace.
119Mr Rivera remains able to travel overseas with his wife, including a four-week European cruise on a large cruise ship in October 2023, a holiday in Hawaii in October 2024 and a tour in China in March 2025. I do not accept that Mr Rivera did not enjoy the cruise, or that the purpose of the travel was “therapy”, and prefer his contemporaneous report to Dr Navani that he was feeling a bit more relaxed thereafter.
Functional tolerances
120I find that there is a mild impairment to Mr Rivera’s concentration, memory, focus, and cognitive stamina. His mood is mildly to moderately impacted. There is no deficit in his perception; there is no delusional thinking or disruptive behaviour.
Personal care
121I find that Mr Rivera is able to undertake his personal care to a reasonable level. I note, in particular, that Dr Navani described his self-care as “reasonable”. Dr Vidanagama described Mr Rivera as reasonably groomed, and reported only a mild impact on self-care.
Marriage and Intimate relations
122I accept that Mr Rivera’s psychological condition has impacted his relationship with his wife, but I do not accept Mr Rivera’s account of the severity of that impact absent an account from his wife. In particular, I note that there is no contemporaneous account of significant difficulties in the marriage in the reports of Dr Navani, Ms Morris or Dr Vidanagama. Indeed, Dr Vidanagama referred to Mrs Rivera as “supportive”.[58]
[58]PCB 68
123I accept that there has been an impact on Mr Rivera’s libido but again, absent a corroborative account from his wife, I do not accept Mr Rivera’s evidence as to the extent of this.
Domestic activities
124Mr Rivera remains able to undertake domestic activities. As his wife works, Mr Rivera performs the majority of the household chores. He undertakes some handyperson activities. Mr Rivera continues to attend his small vegetable patch, and mow the lawn.
125I accept that Mr Rivera’s enjoyment of cooking traditional Filipino dishes, and the frequency with which he does so, has reduced somewhat.
Recreational activities
126Mr Rivera still pursues his hobby of photography, although his enjoyment of it is reduced and the frequency with which he takes photographs outside the home is reduced. I formed the view that Mr Rivera continued to take photographs outside the home, and he downplayed the extent to which he undertook this activity.
127Prior to his injury, Mr Rivera cycled to and from work most days. He was part of a cycling group that rode 80 to 100 kilometres most Saturdays. He has three expensive road bikes.
128Currently, I find Mr Rivera cycles at home on a stationary bike. I do not accept that he is unable to cycle outside the home by reason of his compensable psychological condition. Mr Rivera continued to participate in his cycling group until sometime in 2024. The reason he ceased doing so was not due to poor memory and concentration, but rather because of his desire not to discuss his cessation of work with the other members of his cycling group. The medical evidence, which I accept, does not support a finding that Mr Rivera is unable to cycle on roads and tracks.
129I accept Mr Rivera’s evidence that he continues to engage in art, by way of drawing, although I accept that he may do so less by reason of his compensable injury.
Are those impairment consequences permanent in the requisite sense?
130An injury is permanent if it will probably persist and there will be no significant improvement over time.[59] That is, that it is likely to last for the foreseeable future.
[59]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
131The VWA submitted that Dr Vidanagama stated he would consider alternative treatments in the event Mr Rivera’s symptoms did not improve on the increased dose of desvenlafaxine. Dr Vidanagama specifically opined that it was too early to determine whether Mr Rivera’s depressive disorder had reached “medical stabilisation”. The treating GP essentially deferred to Dr Vidanagama, stating that if the treating psychiatrist had exhausted his treatment interventions, then the condition was stable.
132Based on the reports of Dr Navani, and Dr Vidanagama, the VWA submitted Mr Rivera’s psychological condition was not permanent in the requisite sense.
133Further, it was submitted, based on Dr Grant’s report, that if Mr Rivera returned to work, there would likely be an improvement in his condition.
134I find that a return to work is very unlikely as Mr Rivera is now retired.
135I am required to consider all of the evidence on this issue. Mr Rivera has suffered a psychological disturbance for the past three years. He has had regular treatment from a psychologist and psychiatrist. Whilst Dr Turnbull, Dr Shan and Dr Grant took a somewhat different view of Mr Rivera’s psychological condition, they were each of the view that the condition was sufficiently stable. In particular, Dr Grant opined that it was unlikely that any additional or new treatment would make much difference to the outcome.
136Dr Vidanagama has not discussed any proposed alternative treatments with Mr Rivera. There is no evidence as to whether Mr Rivera will undertake the proposed treatment. No new treatment regime is currently planned.
137Mr Rivera bears the onus of proof of permanency; however, this is a ‘gateway’ proceeding.[60] I find that whilst there is a possibility that Mr Rivera’s condition may not be permanent, I am sufficiently satisfied, on the whole of the evidence, that it is more likely that it will continue in much the same way.
[60] Findlay v Transport Accident Commission [2025] VSCA 126
Are the permanent impairment consequences “severe”?
138In the case of a physical injury, the consequential permanent impairment or loss of body function must be fairly described as more than “significant” or “marked” and as at least “very considerable” when judged by comparison with other cases in the range of possible impairments or losses. I must have regard to the use of the word “severe” in the case of mental or behavioural disturbance or disorder.[61]
[61]Transport Accident Commission v Katanas [2017] 262 CLR 550, at paragraph [22]
139I am required to identify and bring to account all of the factors which emerge on the evidence as relevant to the assessment.[62]
[62]Ibid at paragraph [25]
140I bear the following observations of the Victorian Court of Appeal in Katanas v Transport Accident Commission[63] steadily in mind (approved by the High Court on the further appeal):
“… a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment [and] the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly call for that level of treatment.”
[63][2016] VSCA 140 at paragraph [20]
141Counsel for the VWA referred to TTB SMS Pty Ltd v Reading.[64] Acknowledging that was a case involving a physical injury, the following considerations were submitted to be apposite:
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
[64][2020] VSCA 203, at paragraph [31]
142I acknowledge that Mr Rivera has had much treatment from Ms Morris and Dr Vidanagama, and he is currently taking the maximum recommended dose of desvenlafaxine. That is a factor to consider in an overall consideration of the severity of the impairment consequences.
143I must consider what has been lost in the context of what is retained.
144Mr Rivera has retained the ability to:
(a) drive;
(b) use public transport;
(c) travel overseas once or twice a year;
(d) perform his own personal care;
(e) perform domestic duties including cooking, vacuuming, mopping, making the bed, laundry, and ironing;
(f) undertake gardening activities, including maintaining his small vegetable patch, and mowing the lawn;
(g) participate in his artistic pursuits, namely photography and drawing, albeit diminished in frequency, and with reduced enjoyment;
(h) exercise, using a stationary bike, and cycling;
(i) attend his local church weekly, and also assist with church functions approximately monthly. He remains able to attend bible study fortnightly.
(j) see and interact with his two grandchildren weekly.
145In performing the value judgement required of me, and upon consideration of the whole of the evidence, I am satisfied that the permanent impairment consequences of Mr Rivera’s psychological condition may properly be described as significant to him; however, I am not persuaded that they could be described as “at least very considerable”, and they do not meet the higher test of “severe”.
Conclusion
146The plaintiff’s application is dismissed.
147I will hear the parties on the issue of costs.
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