Robson v State of Victoria
[2013] VCC 508
•7 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01559
| PAUL ROBSON | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 January 2012, 21 August 2012, 15 April 2013 | |
DATE OF JUDGMENT: | 7 May 2013 | |
CASE MAY BE CITED AS: | Robson v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 508 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric injury
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G A Worth | Melbourne Injury Lawyers |
| For the Defendant | Mr S A Smith | Wisewould Mahony |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming common law pain and suffering damages by reason of psychiatric injuries described as severe Post-Traumatic Stress Disorder, severe Adjustment Disorder with Depression and Anxiety, Major Depressive Disorder, and chronic anxiety state, which injuries it is alleged arose out of or in the course of his employment with the defendant. In the proceeding, the area of dispute for my consideration involves the issue as to whether the pain and suffering consequences caused to the plaintiff by reason of his injuries meet the statutory definition of “severe” as employed by the Accident Compensation Act 1985, as amended, (“the Act”).
2 In the proceeding, the plaintiff relies on a number of affidavits sworn on 17 December 2007, 6 December 2011, 17 August 2012 and 28 February 2013. Little point is served by setting out in detail the content of those affidavits, much of which is not in dispute. It is appropriate, however, so that the parties are able to follow my path of reasoning in deciding this matter, that I briefly set out salient points relied upon by the plaintiff as follows.
3 The plaintiff was born in January 1967. He is currently forty-six years of age. He is a career policeman, having been appointed to the rank of sergeant in 2000 while stationed at Colac. The event which gives rise to the present application occurred early in 2002. In July 2002, the plaintiff attended a general practitioner by reason of being distressed, and was subsequently referred for treatment to a psychologist. In December 2005, the plaintiff came under the care of Dr Buckley, a general practitioner, who prescribed Aropax, and subsequently Effexor, in treatment of the plaintiff’s symptoms of Depression and Anxiety.
4 In his affidavit of 17 December 2007, the plaintiff said that he stopped working on 27 December 2004 as he was unable to cope with the constant harassment and intimidation to which he was being exposed. At that time, he was continuing to consult Dr Buckley and was also consulting the psychologist, Ms Crooks. He described his depression at that time as fluctuating, such that there were occasions upon which it interfered with his sleep, it caused him to have nightmares and intrusive thoughts and it also affected him such that he was not able to eat well. He described his relationship with both his wife and his children being affected by reason of the fact that he was intolerant to the noise they made and could not do things for or with them to the extent that he previously used to.
5 The plaintiff said that as at 2002, he was playing football for the Colac Tigers, that he had hoped to keep playing up until the age of forty, but when his problems began in 2002, he became ill and stopped playing, thus losing three or four years when he would have continued playing football. He said he had maintained an association with football, assisting with Auskick for special school children in Colac.
6 He said that his relationship with his wife had suffered such that he had no desire to engage in sexual intercourse and that he found it difficult expressing his affections both for his wife and his children. He described himself as being prone to fits of anger and then to tears for no apparent reason.
7 In his second affidavit, which was sworn in December 2011 when the plaintiff was then forty-four years of age, the plaintiff said that in 2009 he had been transferred to Geelong. He described this as involving a forced transfer of he and his family to Geelong to enable him to continue in his career as a police officer where he had been seconded as a detective sergeant attached to the CUI and was, as at December 2011, in the position of acting senior sergeant. He described the transfer from Colac to Geelong as involving a significant cost to he and his family. He said that in Colac they were “set up with [their] own house and negatively geared properties” and that they had to sell one of the Colac properties in order to purchase a property in Geelong, and they were at that time trying to sell other properties in Colac “as we can no longer afford to keep them given the increase in our cost of living in Geelong”. He said that his middle child had struggled with the transfer and that he had struggled to cope with his feelings of responsibility for her changed circumstances.
8 He said he continued to consult Dr Loughnan in Waurn Ponds on a monthly basis and he was currently taking Lexapro, 20 to 30 milligrams each morning, and Lorazepam, or alternatively Xanax as needed to assist him with his sleep. He said”
“One effect of the medications which I have taken over such long period of time is that I have greatly lowered libido and impaired erectile dysfunction (sic) and I am prescribed Viagra to try and help me overcome those problems. My lowered libido has impacted upon the closeness of my relationship with my wife.”
9 He described having suffered from stress-related migraines and headaches since approximately 2004 on a weekly basis and was currently employing Mersyndol Forte, or alternatively Panadeine Forte, in treatment of these headaches which, when they were present, required him to lie down in a dark room. He said that when he suffered a –
“… particularly severe migraine, I attend my general practitioner for a Phenergan injection and this occurs perhaps a monthly basis”. He described suffering from stress such that “I continue to have trouble with my stomach and perhaps two or three nights a week I am unable to keep my dinner down … I take Quick-Eze or Mylanta on virtually a daily basis to help with heartburn which has resulted from a chronic vomiting problem which again I believe relates to the stress condition I have developed. On occasions I can be sitting at home and suddenly burst into tears uncontrollably for no particular reason, save for the presence of my underlying stress condition.”
10 He said that when he had been in Colac he had a wide sporting involvement which included engaging in children’s sporting activities which he had foregone. As at December 2011, the plaintiff described limiting his sporting activities to his pursuit of karate which he found helped relieve his symptoms of stress.
11 In an updated affidavit sworn on 17 August 2012, the plaintiff deposed that on 21 February 2012, he suffered a panic attack such that he was unable to function, that he consulted Dr Loughnan later that day at which time his dosage of Lexapro was increased from 20 to 40 milligrams and that it had continued at that dose thereafter. He said:
“I understand that that dosage is double the recommended dosage for this medication. I have taken off Xanax and have instead been prescribed Valium 5 milligrams twice daily. I have also been commenced on anti psychotic medication Seroquel which Dr Loughnan advises me is a mood stabiliser. In my case I take 25 milligrams as required usually twice a day. I am permitted to monitor my own dosage of this medication because I understand that it is not addictive.”
12 The plaintiff said that he was off work for approximately three weeks after his “psychiatric collapse” on 21 February 2011, that he immediately lost his position as acting senior sergeant, and had been moved into a uniform position in charge of prisoners in custody at the Geelong Police Station. He said that he was “gradually getting back to the position where I was before my psychiatric deterioration on 21 February 2012 with the benefit of increased dosages of medication to which I have referred” describing his psychiatric condition as “gradually approaching that at the time I gave evidence at the earlier hearing of my application”.
13 That reference by the plaintiff referred to the evidence given by him on 18 January 2012 when he gave viva voce evidence in this proceeding to the following effect.
·He was, at that time, employing Lexapro, 20 to 30 milligrams daily, and either Lorazepam or Xanax for anxiety. He described suffering from migraines which occurred with a frequency in which it was unusual that he would go for more than two weeks without needing medication. He said that he had no need for prescription medication to control headaches prior to the incident the subject of this application.
·As to his libido, the plaintiff said that he employed Viagra to assist him but –
“I don’t have the desire to use the Viagra so I’ve, like I’ve got them in the cupboard at home unopened … by taking Lexapro and in the past Arapax (sic) or Effexor, the antidepressants I've taken, they take away – they diminish your libido to the point that the use of Viagra would be irrelevant, so – I take it – I don’t know when the last time my wife and I were physically intimate, I honestly don’t. It would be a month probably, maybe more and that would have been with the use of Viagra then but I don’t think I've taken one since.”
·As to his migraines, the plaintiff said that he was required to consult his general practitioner for an injection of Phenergan but also employed Phenergan tablets when his migraines were particularly severe.
14 In cross-examination, the plaintiff described himself as currently occupying the position of senior sergeant in the Drug Squad at Geelong. His role was an administrative one, authorising affidavits for search warrants and he had a senior sergeant to deal with operational matters that he was involved in, assigning members to particular jobs, and whilst he was occasionally involved in hands-on investigations, involvement of this type was limited to when his sergeant was on leave. It was clear that the plaintiff’s work involved a considerable degree of responsibility ensuring that the relevant paperwork complied with protocols and he accepted that he exercised his own judgment about a particular question as to whether or not an investigation should be proceeded with, in consultation with others. He accepted that he was in a management role supervising eight men in what was important and complicated work, that he was physically robust in that he could deal with matters of danger to his person such that he had been able to cope with an incident in which a gun had been pulled on him without suffering any aggravation of his psychiatric condition.
15 The plaintiff was asked:
“Q: The sort of characteristics that I've mentioned to you, man management skills, time management skills, dealing with members of the public, attention to detail, concentration in doing your job, ensuring that those below you are doing their job properly – and I should add also exposure to danger – those have been a feature of your work for the last two and a half years since you’ve been stationed at Geelong in those various roles?---
A: In some of those things, sir, it’s been the feature of my work for 25 years. I guess the administrative side of things predominantly for the last two and a half years.”
16 Whilst the plaintiff said that prospects of advancement to the role of permanent senior sergeant had been “knocked on the head”, he described this occurring by reason of the introduction of “Project Aim” and that his promotion to that position had been discussed prior to the introduction of that project. He agreed that his superiors had no qualms in his ability to do the job that he was doing and he believed that they had no qualms in him being appointed permanently as a detective sergeant in the CIB. He said that he was medicated every day and believed this medication worked such that he was not exhibiting signs of psychological stress while at work. He described himself as loving his job, as trying to build a rapport with his members, that he felt capable in his ability to establish a rapport and as being happy in appropriate circumstances to have a chat or laugh with his fellow officers.
17 He agreed that in 2007 or 2008, he received an award as Coach of the Year within his region for his activities involved in coaching the Under 14s football team, that he had been involved in the Auskick program between 2004 and 2007 or 2008 and that his coaching with the Under 14s football team which resulted in his award probably occurred in 2008. In the course of that year, he said that he supervised between 21 and 29 children. He agreed that some time after 2002, he had coached the local primary school basketball team in which his daughter had been involved in but at the time at which he had been coaching, he had been on special leave. He said that he had now given up coaching, explaining, “I don’t think I’ve done my fair share for forever but I think for the moment. I’ve got other concerns, and to be honest, I don’t know that I've got the temperament for it at the moment.”
18 It was put to the plaintiff that there had been a significant improvement in his condition since 2007 to which the plaintiff commented that he did not feel there had been “a hundred per cent significant improvement. I’m medicated more now than I was in 2007”. He described himself as being a very moody man, that whilst he worshiped his children there are days “when their playing drives me up the wall”. He described his mood swings as being unbelievable and said that he felt that it was disgraceful that he had a tendency to burst into tears in front of his ten year old. He said that his medication did control his mood swings but it helped, describing his medication in the following terms: “It’s not a – I guess it’s not a – you know silver bullet.”
19 He agreed that whilst in Colac he had bought a number of rental houses and that in 2006 he had painted two of them, that at that time he was going to the gym probably three times a week and accepted that in 2007 he had told Dr Newlands that he enjoyed shopping and cooking and that he continued to enjoy cooking. He accepted that there was a period in 2007 where he was sleeping well and equally there was a period during which his appetite was good. He accepted that in 2007 his concentration and organisational skills were back to normal and he was feeling positive about returning to work. He agreed that he told Dr Newlands in 2010 that he had purchased a property at Waurn Ponds which he considered to be a beautiful new home. The plaintiff agreed that he had had significant drinking problems but that he had not had an alcoholic drink since 2000, describing himself as always being a recovering alcoholic. It was put:
“Q: So you’re now in this large beautiful new home and it requires a lot of care and you pitch in and you do as much as you can?---
A: No I should but I don’t and that’s the cause of some angst … look I've never been one to shirk helping out, there are days I come home and I sit in the chair and I don’t move and that’s not because of the chromosome it’s because of how I am and that’s because of how I feel.”
20 He said that he had made good friends in Colac but that since moving to Geelong he had made friends only with neighbours on one side of his property. He described the effectiveness of his medication in the following terms:
“A: If I didn’t take my tablets I don’t think I'd even get into the car.
Q: But with medication?---
A: While I'm medicated I still struggle but I love my job. It’s an identity that I've adopted over the years. I'm a policeman.”
21 He described feeling more agoraphobic and feeling somewhat restricted. He said that whilst medicated he was not restricted in his ability to exercise at home or to run. When it was put to him that nothing about his injuries prevented him from being an active father, he said:
“Well, yeah there is. My moods and my temperament are such that there are days when I just go upstairs and put the telly on the bedroom and don’t come out. You know, there’s days I just sit in a chair and my wife just sees and wonders what the hell, what am I going to do? Are you going to move? And I just don’t.”
22 He said that he had stopped seeing the psychologist, Ms Crooks, as she went off on stress leave and he was continuing to take the medication which he had been prescribed. He said that he had been first put on Aropax in 1998, that he had suffered a period of stress in the early to mid nineties. He did not dispute that in 1994 and 1995 he had presented to his general practitioner with depression and that in April 1995 he had been referred to Dr Oldham, a psychiatrist, who he consulted in April 1995 and January and February 1996. It was put to the plaintiff that he had told Dr Oldham when he last saw him on 26 February 1996 that he was “happy with the effect with the half dose of Aropax, that you were relaxed and enjoying your sexual relationship with your wife a great deal.” Whilst the plaintiff said he had no recollection of his position at the time, he did not quarrel with that history commenting, “I don’t remember saying it and I certainly don’t know that there was a need to have said it because we’d been married 15 months and didn’t have any kids”.
23 It was put to the plaintiff that he had required antidepressant medication ever since 1996, to which the plaintiff responded that he may have employed Aropax when initially transferred from Coleraine to Colac. The plaintiff was uncertain as to whether he was using Aropax at the time of the 2002 incident, the subject of this application. He accepted, however, that in August 2002 he had seen Dr Jager in relation to a worker’s compensation claim initiated by him in 1998 for stress and that he had told Dr Jager that he was taking Aropax 20 milligrams a day as at July or August 2002 and that the issue which required that medication involved the plaintiff “having trouble dealing with an eleven year old boy that hung himself. It wasn’t multiple scenes and things. I don’t recall. I recall the one incident that was causing me grief”.
24 The plaintiff said that in February 1998 he had transferred out of the Newport Sexual Investigation Unit for his own benefit and that at that time he had experienced vomiting at night. It was put to the plaintiff that this was
“Q: A problem you’d had for many years before 1998, correct?---
A: No.”
25 The plaintiff said that he had had a stomach ulcer in respect of which he had been referred to a gastroenterologist in 1988 with the treatment of symptoms of gastric reflux. The plaintiff did not dispute, however, that he gave a history to Dr Stern in 1998 that his vomiting had stopped.[1]
[1]It is accepted by the defendant that there is no evidence in support of the position that the plaintiff’s vomiting which had ceased in 1998 manifested itself again prior to 2002.
26 Whilst it was put to the plaintiff that he had suffered form migraines in the past, he accepted that he had a previous problem with headaches but disagreed with the suggestion that he had had a history of migraines. It was put to the plaintiff that in 2002 when he started to experience psychological problems, it was his view that these problems were a continuing problem from 1998, which were progressively getting worse. The plaintiff disagreed with this proposition. In support of this proposition, the defendant put to the plaintiff a claim form completed by him in 1998 in which he described himself as suffering from depression.
27 It was put to the plaintiff then when completing his claim form in June 2002 he was asked whether he had a previous disability to which he responded in the affirmative with respect to his condition in 1998. It was put:
“Q: Is this right that what you were meaning to convey by that claim form of 3 June 2002 is that as at 3 June 2002 you were experiencing stress because of the nature of your duties and that that had been a problem that you first noticed in 1998 and had been continuing and increasing up until 3 June 2002?---
A: To be fair probably not but that’s what I've written.
Q: You see for this instance this answer this came about as the result of getting an admonishment notice?---”
28 When further challenged as to this issue, the plaintiff said:
“A: I suffered stress at Colac as the result of receiving an admonishment notice for a hilarious incident that should never have occurred which is when I put this form in. Now the fact that I've referred it back to 1998 I can’t offer anything in relation to that, although I do note that – nowhere have I mentioned the fact that the claim relates to the admonishment notice when it was accepted eventually that it was part of the admonishment notice and further ---
Q: So in 2002 it was your position that whilst the way that you perceived you were being treated by your superiors at Colac was problem, it was simply a feature in the continuation of a problem that you’d had since 1998, correct?---
A: No. I'd been promoted since then.
Q: Well why did you record in your claim form which you’ve agreed you knew had to be true and correct to the best of your knowledge and was punishable for the insertion of false information, why did you record in June 2002 that the date of your injury and condition is from 1998, what I would suggest to you is 1998 onwards and refer to you being injured by 16 years of policing and by the nature of your duties?---
A: I can only answer that by saying I was a person suffering stress and I recall the anger, if you like but I was angry as hell, and I think filling in the form you – and I think maybe it’s anomaly with the form, you’re asking someone who’s suffering a stress or depressive nature to fill in a form and explain what’s wrong with them. I'd previously seen someone back in 1998 in relation to stress, so I threw it in there, I had no idea that that – maybe that’s why I put it in it there, I don’t know. I can’t recall why I wrote it at the time but I certainly was promoted after 1998 and had been promoted to a supervisory role in Colac.
29 Whilst it was put to the plaintiff that he was taking “Aropax daily once a day as at July 2002” to which the plaintiff agreed, he maintained his position that there was a period of time during which he was not taking antidepressants.[2]
[2]I understood the plaintiff’s response in this respect to be referring to the fact that he had ceased taking antidepressants.
30 In re-examination the plaintiff said that there was a period of time in 2000 which he believed he was not taking antidepressants. He said that without his medication “I don’t think I – I genuinely don’t think I'd get in the car. I – wasn’t exaggerating that. I don’t think I'd be able to get myself to work.”
31 He said that even with his medication he had feelings of agoraphobia explaining that whilst he felt comfortable in his own home and comfortable in his job as a policeman, “outside of that I become edgy. I'm not comfortable.”
32 As to his level of functioning between 1998 and 2002, the plaintiff said:
“To the best of my knowledge I had a problem with alcohol which occurred in the middle of that period but I went back to playing football in that period at the age of – I think I was thirty-nine when I returned to football and was playing with the Colac Tigers … I was working full time, I passed my sergeant’s exams. I was promoted. We started a family. In fact I think two of our kids were born, two of the kids were born in that period. No, sorry, Annie was born in 1997, Megan was born in 1999. We had a miscarriage in 2000. I had moved to a country location while I waited for promotion. I was adopted beautifully by the country town who – the locals. I was going fishing and yabbying with two old friends in Coleraine. Seemingly I was fine.”
33 The plaintiff said that he had been consulting Jill Crooks for years and years but had ceased consulting her when she went on sick leave and ceased practising. He said it was Ms Crooks that had recommended he apply to WorkCover for gym membership, had encouraged him to be involved with Auskick and had encouraged him to keep motivated in other matters, rather than to sit at home which is what he had been doing. He described the impact of those strategies as getting him out of the house and said that any day spent with his son was a good day.
34 The plaintiff was cross-examined as to his intimate relationship with his wife. He was asked:
“Q: You said that your medication is such really that it stymies your interest?---
A: Yes.
Q: What does that mean, does that mean you have no interest?---
A: Yes, sir, I love my wife, I love my family but Viagra doesn’t help that, sir.”
35 In his affidavit dated 28 February 2013, the plaintiff said that he continued to be prescribed two 20 milligrams of Lexapro as his morning dosage, 100 milligrams of Seroquel morning and night and between 5 and 15 milligrams of Valium as required per day. He described his psychiatric condition as remaining brittle and fluctuating and said that he was presently not working, having sustained an injury to his Achilles’ tendon in February 2013. He said that as at 26 November 2012, he had been appointed as an acting senior sergeant in the Corporate Division of Victoria Police and that, having regard to the relevant Police Regulations “I should be able to remain at this position on an ongoing basis into the future and because of the nature of the work which I am performing effectively running Corporate strategies within Victoria Police, I am hopeful that I will be able to continue with my career in the longer term”.
36 Michelle Anne Robson, the plaintiff’s wife, in an affidavit of 6 December 2011, deposed that the plaintiff had been highly stressed over an extended period of time and that he continued to consult his local general practitioner, Dr Loughnan at Waurn Ponds on a regular basis for treatment of his depression. She described her sexual relationship with the plaintiff having been impacted upon adversely by reason of his use of medication:
“There has been some erectile dysfunction which has necessitated the use by the plaintiff of Viagra medication during sexual relations. Generally the plaintiff’s libido is greatly lowered in comparison to his pre-injury libido. Now we would be lucky to have sex once every three months. The plaintiff’s sleep remains disturbed on a chronic basis and he frequently wakes at night despite the use of the medications which he takes.
I am also able to confirm that after a long period of time the plaintiff’s stress condition has affected his ability to keep his food down and that he regularly vomits up food and takes medications to try to ease the pains associated with that problem.”
37 She confirmed that her husband remained tearful, that he was prone to spontaneous bursts of crying and that he suffered form mood swings and irritability which was previously not a problem for him. She said that the family’s move from Colac to Geelong was a great wrench for the family and that:
“So far as the plaintiff is concerned there has been significant restriction in both his social life and also our joint family social life. His social activities now are restricted mainly to his involvement in karate and even that activity has been significantly restricted by the injury which he sustained in the course of his work as a police officer which has required surgery performed earlier this year”.[3]
[3]This was clearly a reference to an Achilles’ tendon injury suffered by the plaintiff.
The medical evidence
38 In a report dated 13 January 2012 Dr Paul Kornan, consulting psychiatrist, reported that the plaintiff presented with a Major Depressive Disorder, a chronic anxiety state and alcoholism which was in remission and that:
“The situation that exists with him is that he is able to function probably very well in one area, is able to work effectively in the situation where he feels supported by the institution he works for. On the other hand, on a personal level he is in my opinion someone who inwardly constantly feels anxious, depressed, has recurrent thoughts about events that occurred at Colac and in his own internal world is significantly suffering.
The progress is that his condition is probably going to remain at current levels long term.”
And further:
“I still see his current psychiatric condition as being permanently with him. In my opinion whilst he may achieve what now appears to be satisfactory performance as I understand the situation he will be someone who will remain within himself anxious, depressed, unhappy and agitated with permanent feelings of hyper-vigilance. I see this as causing him to have no sustained enjoyment or peace of mind outside the work situation.” The position is as indicated above.”
The viva voce evidence of Dr Kornan
39 Dr Kornan gave evidence that the plaintiff’s use of Lexapro was probably a significant factor in his sexual dysfunction, opining:
“A: What I was concerned about with this man was that he was extraordinarily brittle from the point of view of his overall psychiatric functioning and I would be – was very hesitant to alter any – I would have been very hesitant to alter any of his medication.”
40 He continued:
“A: The recommended dose of – maximum dosage of Lexapro is 20, so to move someone onto 40 is over the recommended maximum dose. On the other hand, it was done and if it’s had some help then one would, in the overall situation with this man, leave it.
Q: From what you know of the case do you ever see him coming off medication?---
A: No, he’ll be on medication for life.
Q: And why is that?---
A: Well, this is a man who is really very unwell and I saw him as someone who had, firstly significant depression, also significant anxiety and he’s got a background of being an alcoholic and he is what we call a ‘dry alcoholic’ in the sense that whilst he’s dry, often every day is a situation where he actually wants to drink but doesn’t, so he’s done very well for attending AA and staying off the alcohol, but he was in the situation where he is, in a sense, in the wrong job because he is involved in the police force, in, it seems, a part of the police force where there are constant personality differences of opinion between different members of the force and because of his basic personality type, he has been someone who has been involved in significant personality clashes and was unable to effectively work for some years until the very people with whom he was arguing were somehow retired or moved on, no longer blocked him and a friend managed to persuade him to come back to Geelong where he has continued to function, although I would have thought that his functioning was precarious and I remember when I saw this man I felt rather uneasy about his overall level of functioning and was not sure that he was someone who wouldn’t at any time, merely just collapse again.”
41 In cross-examination, whilst Dr Kornan accepted that other medication could be trialled in order to deal with the plaintiff’s erectile dysfunction, Dr Kornan commented that the plaintiff’s presentation was such that if he were managing the plaintiff, “I would hesitate to change anything”, explaining:
“His main problem is – is not the erectile dysfunction in the sense, his main problem is the diagnosis I have given him and the issue is that another antidepressant, if it doesn’t do so well on his major depression and his anxiety symptoms, that’s the major thing to keep in mind.”
42 He described the situation as involving the plaintiff’s treatment which was:
“At the moment, from the point of view of his antidepressants is as good as we’re going to get, so changes there, if they caused the decompensation, would certainly outweigh – that’s the problem – would outweigh any problems of sexual dysfunction. I view the sexual dysfunction as – if I were treating him as being sympathetic, and trying to concentrate on the big picture, which is that we’ve somehow managed to get back to work in a very brittle way and we should just hope that we can keep going.”
43 He continued:
“I think that – I am – this is one of those cases where I think that the risks of changing from Lexapro are very grave, and particularly if he is in fact on 40 milligrams which for some reason is well above the recommended dose. But he’s taking it presumably and in those circumstances we should just – so to speak cross our fingers and keep going. And it is true that very often in psychiatry you are told that you can’t mix certain medications and so forth. But sometimes you have such difficult cases that you have to just go outside the bounds. And if it happens that it’s there are risks, you have to take them. It’s a bit like in any field of medicine – a surgeon says, ‘Well there are risks’ and that’s what we do.”
44 In a series of reports between August 2002 and May 2011, Ms Jill Crooks, the plaintiff’s treating psychologist, reported upon the waxing and waning of the plaintiff’s presentation.
45 In August 2002, Ms Crooks expressed the opinion that the plaintiff believed that he had been “white anted” to his superiors by a member of the Colac Police Station over issues of promotion and seniority and specifically that he had been formally admonished for a procedural error that could not be substantiated. She diagnosed the plaintiff as presenting a condition secondary to these issues involving a depressive episode of moderate intensity such that he was currently unable to assume pre-injury duties or any related employment.
46 In a report dated 25 May 2006, Ms Crooks opined that the plaintiff presented with a Post Traumatic Stress Disorder which incapacitated the plaintiff from assuming his pre-injury duties, in particular operational duties, that was such that:
“He may be able to resume his position as a training officer similar to that which he held in 2004 which he enjoyed and found very fulfilling. Such a position would need to be carefully defined in terms of duties, accountability, performance assessment, et cetera so that the problems which caused the position to fail in 2004 do no reoccur. Unless such a carefully constructed RTW is devised, Mr Robson will be able to work for Victoria Police again.”
47 In a report dated 2 November 2010, Ms Crooks reported that the plaintiff presented with a chronic adjustment disorder which was subject to exacerbation of symptoms “when reminders trigger reactions of his experiences at Colac”; that his ability to remain in unrestricted employment with Victoria Police was dependent upon the manner in which he was treated by his employer and that his injury and level of impairment would appear to be permanent.
48 In a further report dated 5 May 2011, Ms Crooks opined that whilst the plaintiff was unable to return to his pre-injury duties at Colac, he could perform his role as acting detective in Geelong very capably and that this involved a suitable alternative employment for him. She opined that the plaintiff’s injury which she has described as a chronic adjustment disorder was permanent but that the plaintiff’s impairment may change according to “current stressors”.
49 On 23 February 2012, Dr Michael Loughnan, the plaintiff’s general practitioner, reported that the plaintiff had consulted him on 22 February 2012 with symptoms of nausea, feeling emotional all day and “drowning”. He opined that the plaintiff was suffering from the consequences of an abrupt cessation of Xanax, the use of which had been necessitated by him impending Court case.
50 In the further report dated 22 May 2012, Dr Loughnan reported that:
“Prior to the January 2012 Court case he became more anxious with more migraines. I suggested that he have medication to deal with this and to enable him to see the Court process through. Soon after the Court he ceased this medication and days later felt nauseous, distressed and reclusive. He needed to take weeks off to recover and on his return learnt that he had lost his acting senior sergeant position.
I believe that when the Court process is finalised Mr Robson will be much improved.”
51 Dr Loughnan opined that the plaintiff’s future treatment once his legal process was over would be one of continued recourse to treatment by a psychologist and medication, his expectation that “both will be relied on less in time”. He commented, however, that the plaintiff’s impairment was significantly permanent noting that some improvement was likely to occur if the plaintiff’s Court proceedings were worked through by him and concluded finally.
52 Having regard to the plaintiff’s truly held belief that the behaviour by his employer which gave rise to his present condition was inappropriate; this latter comment by Dr Loughnan (namely that the plaintiff may gain some improvement with the finalisation of his Court proceedings) must, in my opinion, be so dependent upon the plaintiff achieving an outcome in a common law trial which vindicates him, that it has little influence upon either the severity or the permanence of the plaintiff’s current presentation.
53 In September 2002, the plaintiff’s treating general practitioner, Dr C Sullivan, expressed the opinion that the plaintiff presented with an anxiety state precipitated by a situational crisis which involved the plaintiff having made allegations that he had not followed police force protocols. He opined that at that stage it was too early to make any prognosis as to the plaintiff’s long term capacity.
54 In August 2005, Dr Derek Buckley, the plaintiff’s then treating medical practitioner, reported the plaintiff’s mood as having fluctuated between depression and frustration and anger and opined that the plaintiff was “still very affected by the events of the past and the ongoing issues that do not seem to be approaching any resolution.”
55 As at May 2006, Dr Buckley reported that the plaintiff had continued to barely cope even with the use of antidepressants, sedatives and counselling; that his family was bearing the brunt of his anger and depression; that overall the plaintiff remained depressed, angry and frustrated and that the plaintiff was at that time “still unable to return to his previous work in an operational capacity”.
56 On 20 November 2006, a Medical Panel, consisting of Dr Michael Epstein and Dr Thomas Phong, opined that the plaintiff presented with permanent 20 per cent psychiatric impairment resulting from an accepted chronic adjustment disorder with anxiety and depression injury.
57 In a report dated 14 October 2010, Dr Michael Loughnan opined that the plaintiff:
“… is best described as having anxiety and depression well controlled by medication and visits to a psychologist.
I believe that his condition is as stable as his ongoing perception of work pressures against him allows.”
58 In a further report dated 3 March 2011, Dr Loughnan opined that the plaintiff’s condition was relatively stable; that suitable treatment amounted to continuing with medication, attendance with psychologist and “work with fairness in the workplace as best as can be ensured”.
59 On 5 August 2002, the plaintiff was assessed on behalf of the defendant by Dr Helen Jager, a psychiatrist, who expressed the opinion that the plaintiff presented with an Adjustment Disorder secondary to “being unable to obtain a secondment for what he considers to be political reasons in the Police Force which incapacitated him for pre-injury employment and was such that he was likely to remain unfit for work for ‘another two to four week”.
60 Given the long history of this application, the plaintiff has been examined on a myriad of occasions on behalf of the defendant by Dr Newlands[4] and Dr Strauss.[5] Whilst the most recent of these reports have the most significance, I do not however ignore the content of the earlier reports.
[4]Dr Newlands has authored eight reports between August 2005 and April 2011
[5]Dr Strauss has authored six reports between November 2008 and November 2012
61 In a report dated 12 August 2005, Dr Carol Newlands reported that the plaintiff was presenting with a mild Adjustment Disorder with some Depression and Anxiety of mood; that the plaintiff’s employment was a significant contributing factor to that presentation.[6]
[6]In this regard, Dr Newlands was clearly expressing this opinion with respect to the history obtained by her as to the work related incident the subject of the current application with occurred in 2002 and that some resolution of the issue which arose between the plaintiff and his employer should be undertaken and with that proviso the plaintiff was fit for his pre-injury duties.
62 In January 2007, Dr Newlands obtained a history from the plaintiff that he felt that since her previous assessment of him, the plaintiff had had been treated with antidepressant medication and had regular contact with a psychologist. She reported that he described no psychiatric symptoms and opined that the plaintiff was fit for undertaking non-operational duties on a gradual return to work plan.
63 In April 2011, Dr Newlands opined that the plaintiff had developed an adjustment disorder with features of anxiety, irritability and depression in the past. That condition was currently in remission.
64 In a report dated 6 December 2012, Dr Newlands opined that the plaintiff –
“… continues to suffer from a Chronic Adjustment Disorder with Mixed Mood. However, he is able to work full time hours in his current role.”
And continued:
“I note my previous reports in which I have diagnosed this gentleman as suffering from an adjustment disorder with mixed mood. I believe that continues to be the case in that he has periods when he seems quite depressed relevant to an external circumstances (sic) and in particular work stressors. I note that he became depressed and anxious with panic attacks following a Court hearing in early July 2012. This was then followed by loss of his acting role and therefore possibly resulted in further worsening of his symptoms. However I note that he appears to be functioning reasonably well at present in that he is working on a full time basis and is once more in an acting senior sergeant role.”
65 On 19 December 2005, Dr Nigel Strauss, psychiatrist, opined that the plaintiff was presenting with anxiety and depression and an adjustment disorder which was work related, commenting that his condition had not stabilised. In September 2006, Dr Strauss opined that the plaintiff presented with a Chronic Adjustment Disorder with Anxiety and Depression, opining that his situation had at that time stabilised.
66 In May 2011, Dr Strauss opined that the plaintiff was suffering from mild intermittent symptoms of anxiety and depression; that he did not have a psychiatric diagnosis using DSM-4; that he had no incapacity for employment whatsoever; and that he should continue to employ antidepressants and occasionally see his psychologist.
67 Having regard to the fact that at the time at which he expressed this opinion Dr Strauss had obtained a history from the plaintiff that he was taking Lexapro 20 milligrams a day and that he had no libido, when combined with the meagre history obtained from the plaintiff by Dr Strauss as set out in pages 4 and 5 of his report, I do not find the opinion expressed by Dr Strauss in this report to be persuasive.
68 In a report dated 12 January 2012, Dr Strauss opined that the plaintiff presented with mild symptoms of Anxiety and Depression which were intermittent; that he should continue with his current medication; that he did not require psychological or psychiatric treatment; that he had no incapacity for employment and that his prognosis was reasonable.
69 In a report dated 27 November 2012, Dr Strauss obtained a history from the plaintiff:
·that having decided to stop taking a minor tranquiliser, the plaintiff went into meltdown;
·that upon returning to his work two weeks later, he was taken off operational duties;
·that he had come to terms with the fact that he may not continue being able to operational work and that he lost the drive to go back to that work and realises that it was extremely stressful and that he has to take medication in order to cope.
70 Dr Strauss obtained a history that the plaintiff was taking Diazepam 2 to 5 milligram tablets per day, Lexapro 40 milligrams a day and Seroquel 200 milligrams a day in management of his condition and that he suffered from sexual dysfunction because of the medication he took.
71 Dr Strauss opined that the plaintiff’s case was complex; that he continued to take “reasonably high doses of major tranquiliser medication and ongoing dosages of antidepressant medication” commenting:
“I note that he continues to take reasonably large amounts of psychotropic medication and I cannot deny that there is a distinct possibility in this case that his psychological problems have finally precluded him from doing further operational work.”
72 He continued:
“Currently he is seeking a psychologist and this is appropriate. He should see her every week or two or another several months and he should continue taking his psychotropic medication. Again, I have not diagnosed a condition using the DSM-4 in this case but I can state that Mr Robson is prone to symptoms of anxiety and depression related to employment circumstances.
I believe that he is capable (sic) of full time non-operational work.
I believe that he does require psychological treatment currently and that he is benefitting from psychotropic medication.”
73 In a final report dated 14 February 2012, Dr Strauss opined that it was more likely than not that his erectile dysfunction and loss of libido were the result of him taking Lexapro and that an alternative medication such as Aropax could be trialled in management of plaintiff’s condition in order to attempt to ameliorate his sexual dysfunction.
74 In a report dated 22 September 2006, Dr Barry Kenny opined that the plaintiff presented with an adjustment disorder with a depressed anxious mood and anger and that this disorder would continue at least until his grievance with his employer was resolved. Whilst in this report, Mr Kenny opined that the plaintiff’s condition could be described as an aggravation of his pre-existing adjustment disorder related to prior problems he ran into in the workplace, having regard to the history obtained by Dr Kenny from the plaintiff, that his first claim arose out of the factual situation which gives rise to the present application, I do not take Dr Kenny in referring to the plaintiff’s pre-existing adjustment disorder to be referring to any disorder which pre-dated that which he developed in association with the 2002 incident, the subject of this application. My finding in this regard is supported by the comments made by Dr Kenny in the final paragraph of his report in which he described the plaintiff as being a successful, energetic and enthusiastic policeman, who, despite his energy and enthusiasm, ran into conflict (harassment) by senior police and as a result has developed an Adjustment Disorder.
75 In a report dated 5 January 2007, Dr Kenny opined that it was appropriate for the plaintiff to return to work in a Geelong Police Station based position.
76 Both Dr Strauss and Dr Newlands in their most recent reports, obtained a history that the plaintiff is employing Lexapro 40 milligrams per day. There is no issue in this case that Lexapro is psychotropic medication and that the dose rate being prescribed to the plaintiff is double that recommended by the manufacturer of the drug.
77 Dr Newlands took no issue with the plaintiff’s requirement to employ Lexapro to manage his condition and Dr Strauss opined that the plaintiff was obtaining benefit from what he described as the “reasonably large amounts of psychotropic medication” which he was taking. It follows that neither witness takes issue with the fact that the plaintiff is suffering from a condition, the management of which requires medication of the type and dose rate being employed by the plaintiff. Whilst the tenor of each of the opinions expressed by Dr Newlands and Dr Strauss appears to suggest that they hold the view that the condition with which the plaintiff presents is one which is not of considerable consequence, such a position is, in my opinion inconsistent with:
(i) the need to manage the plaintiff’s condition by the prescription of Lexapro; or
(ii) the position accepted by Dr Strauss that the plaintiff’s failure to maintain his Aropax (described by Dr Strauss as a minor tranquiliser), resulted in the plaintiff suffering a “meltdown” in his capacity to function.
78 This latter incident, when considered in context of:
·the plaintiff’s management by the prescription of an extremely high dosage of an anti-psychotic medication in the form of Lexapro;
·the plaintiff’s willingness to tolerate the side effects associated with that medication, namely erectile dysfunction and loss of libido
in my opinion bears testament to the seriousness of the plaintiff’s mental illness and for those reasons I prefer the analysis by Dr Kornan, who has opined as to the seriousness and fragility of the plaintiff’s mental state to any opinion expressed to the contrary.
Findings
79 The impression I gained of the plaintiff during the course of his evidence was that he was a man of considerable integrity whose position as a police officer was fundamental to his personality and to some extent dominated his personality in so far as it framed his attitude towards the position of responsibility which he adopted not only to the community through his work but also his family.
80 Taking into account the fact that the plaintiff’s current regime of medication involves Lexapro at a dose level which exceeds the maximum recommended dose, when considered in the context of the plaintiff’s recent severe decompensation which was associated with his failure to comply rigidly with his medical regime, I accept the plaintiff’s evidence that his ability to function and work is dependent, in a primary sense, upon the medication which he takes and that in the absence of that medication it is unlikely that the plaintiff would be able to function at a level in which he could cope adequately with the demands of his work.
81 I am satisfied that the plaintiff was both a reliable and honest witness. The plaintiff’s self rehabilitation from his alcoholism and his attempt to minimise the effect of his current illness upon his life and lifestyle was well demonstrated by his return to work and his acceptance of the encouragement given to him by Ms Cummins that he should become engaged in the community in an attempt to deal with his illness rather than remain at home, in my opinion bears testament to the plaintiff’s motivation. Further, the candour exhibited by the plaintiff in giving his evidence, in which he had no hesitation in making concessions as to his ability to engage in both sporting activity and in his work, further satisfies me as to both his honesty and reliability.
82 I accept the evidence by Dr Kornan to which I have referred. In my opinion, Dr Kornan’s statement that the plaintiff’s management was the subject of precarious balancing and that the plaintiff was at risk at any time of suffering a severe decompensation in his condition which would limit his ability to work, is borne out by the plaintiff’s psychiatric collapse of 21 February 2012 and the fact that upon his return to work he was on a short term basis moved from his posting as acting sergeant and was given a uniform role in charge of prisoners in custody.
83 For the reasons previously expressed, I am satisfied:
(i)that the plaintiff presents with a major depressive disorder and a chronic anxiety state as opined by Dr Kornan in his medical report dated 13 January 2012;
(ii)that the plaintiff’s condition is appropriately managed by the prescription of a large dose of psychotropic medication in the form of Lexapro which is augmented by Seroquel and that the ingestion by the plaintiff of this cocktail of medication allows him to function well in his workplace such that the plaintiff is able to administer, very competently, [7] a responsible position within the Victoria Police Force;
(iii)that the employment by the plaintiff of the medical regime to which I have referred has resulted in the plaintiff suffering a loss of libido and erectile dysfunction to such an extent that the plaintiff’s intimate relationship with his wife is appropriately described as involving a burden for him which cannot be fulfilled without recourse to Viagra and is fulfilled with the regularity described by the plaintiff’s wife in her affidavit;
(iv)that the plaintiff suffers from regular migraines which vary in intensity but are regularly such that the plaintiff is required to employ medication in the form Mersyndol Forte, alternatively Panadeine Forte, alternatively Phenergan injections, and that the severity of these headaches is such that they regularly incapacitating. I am further satisfied that whilst the plaintiff previously had a history of suffering from headaches, it is inappropriate to describe the plaintiff’s current presentation of migraine headaches as being in any way an exacerbation of any prior condition suffered by the plaintiff;[8]
(v)that the plaintiff suffers from stomach upset which is associated with chronic vomiting such that two or three nights per week he is unable to keep his dinner down;
(vi)that the plaintiff has been required by reason of his psychiatric condition to relocate his family from an area which he had made his home and where he had established a significant social network to his current location in Waurn Ponds where he suffers from symptoms of mild agoraphobia and his social network in terms of friendships has developed such that his social relationship is limited to the development of a friendship with only one neighbour.
[7]See the affidavit of Inspector Thompson dated 29 November 2011
[8]In making this finding, I accept the plaintiff’s evidence at T91-93.
84 Accepting as I do the evidence of Dr Kornan that it is injudicious to alter the regime of medication which is allowing the plaintiff to function so well in the employment which he feels defines him as a person, I am satisfied that it is appropriate to regard the plaintiff’s current presentation as having stabilised.
85 Whilst it is put by the defendant that the plaintiff presented with a pre-existing condition which manifested itself in the late nineties and continued between 1998 and 2002 such that the plaintiff’s current emotional condition is an exacerbation of his prior condition, I do not accept this position.
86 When account is taken of the assessment by Dr Stern that as at 9 April 1998:
(i) that the plaintiff presented as at with no psychiatric disorder and that he had “bouts of depression during 1995 and anxiety during 1997”, from which he had recovered;
(ii) that the plaintiff’s intelligence; thinking; perception; judgment; affect; behaviour; ability; potential; were all normal;
(iii) the plaintiff’s evidence when this issue was tested in the course of cross-examination at Transcript 97-99, and further at Transcript 106, which I found to be persuasive;
I am satisfied that in assessing the impact of the condition that is the subject of this application, I should adopt as the starting point of my analysis the position that the plaintiff recovered from the condition that was the subject of his prior compensation claim to such an extent that, whilst he may have been employing modest levels of medication to deal with doubts of depression or anxiety, he was otherwise symptom free.
87 My opinion that the plaintiff recovered sufficiently from the depressive condition with which he presented in the late nineties is supported by the fact that each of the medical practitioners who have opined as to the causation of the plaintiff’s current incapacity have opined on the basis that the primary cause of that incapacity lies in the plaintiff’s perception of the inappropriate behaviour of his employer in the series of incidents commencing in the year 2000.
88 Notwithstanding the fact that the plaintiff may have been assessed by Dr Steven Stern in 1998 as requiring to continue his use of the antidepressant Aropax for the near future, I am satisfied that there was no restriction in the plaintiff’s ability to function physically or emotionally in all aspects of his life prior to the incidents the subject of this application and accordingly that the findings I have made as to the level of the plaintiff’s physical and emotional function stem directly from the emotional insult suffered by the plaintiff by reason of the incidents the subject of this application and the medical regime employed to manage those insults.
89 Having regard to my finding as to the effect of the medication on the plaintiff’s libido and erectile dysfunction, I am satisfied that this consequence alone for a relatively young man who is in a loving relationship with his partner who the plaintiff has described as being his “rock;” is such that it is appropriate to describe the plaintiff as presenting with consequences in terms of impairment of body function which meet the definition of severe long term mental disturbance or disorder or severe long term behavioural disturbance or disorder, as employed by the provisions of the Accident Compensation Act. When account is taken of the further findings which I have made as to the consequences to the plaintiff of the condition the subject of this application and the totality of the plaintiff’s presentation is taken account of, my opinion that the plaintiff is entitled to the leave which is sought in this application is reinforced.
90 For these reasons, I am satisfied that the plaintiff is entitled to the leave which he seeks in this proceeding and I will hear the parties as to the precise order which will be made in the proceeding and also upon the issue of costs.
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