Schanssema v Victorian WorkCover Authority
[2021] VCC 520
•5 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02261
| JULIAN ERIK SCHANSSEMA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2021 | |
DATE OF JUDGMENT: | 5 May 2021 | |
CASE MAY BE CITED AS: | Schanssema v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 520 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left lower limb – psychiatric injury – anxiety and depression and Post-Traumatic Stress Disorder – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Shock Records Pty Ltd v Jones [2006] VSCA 180; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Riga v Victorian WorkCover Authority [2015] VCC 270; Mobilio v Balliotis [1998] 3 VR 833; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HER HONOUR:
Preliminary
1Mr Schanssema is a thirty-six-year-old man who suffered an injury to his left lower limb while working as a field manager at Hurstbridge Railway Station on 28 March 2012. Mr Schanssema was removing a tree stump from the railway station using a chainsaw, when the chainsaw struck his leg, causing an open fracture of his left tibial shaft, which was treated surgically. Mr Schanssema claims to suffer ongoing impairment from his left lower limb injury, as well as a consequential psychiatric condition.
2In order for Mr Schanssema to be entitled to claim common law damages, the impairment to his left lower limb must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB of the Accident Compensation Act 1985 (“the Act”). In the alternative, Mr Schanssema must satisfy me that, as a consequence of this accident, he suffers a psychiatric disease or disorder which meets the definition of “serious injury” contained in paragraph (c) of the same section of the Act.
3Mr Schanssema was the only witness called to give evidence. Both parties also relied on medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to and explain the conclusions reached in this judgment.
Mr Schanssema’s life before the work accident
4Mr Schanssema was born in Australia and attended high school until Year 11. After leaving school, he worked for three to four years as a motor mechanic. Mr Schanssema commenced, but did not complete, an apprenticeship.
5On 17 October 2005, Mr Schanssema commenced working for Lonewolf Australia Pty Ltd (ACN 064 165 626) (“the employer”) as a field manager. In this role he undertook general maintenance of railway stations, with such work regularly involving the use of power tools, including chainsaws. Mr Schanssema stated that he enjoyed working outdoors and in different locations.
6In his leisure time, Mr Schanssema said he did weight training, kick boxing and attended the gym three times a week.
7Mr Schanssema stated that he suffered from mild anxiety prior to his work accident and used marijuana and benzodiazepines to “manage symptoms of anxiety”. Mr Schanssema also said that he used “party drugs” on weekends.
8In January 2011, Mr Schanssema was referred to Eastern Drug and Alcohol Service for assistance in respect of his drug use.
9In March 2011, Mr Schanssema was referred to psychiatrist, Dr Justin Lewis. In a letter dated 25 March 2011, Dr Lewis stated that Mr Schanssema reported longstanding emotional difficulties, with a history of feeling depressed and having lost trust in interpersonal relationships. At the time, Dr Lewis suggested that Mr Schanssema trial chlorpromazine medication; however, Mr Schanssema said he did not want to take that as he understood it to be an antipsychotic drug.
10Mr Schanssema said that he could only recall seeing Dr Lewis on one occasion. However, clinical records from Mr Schanssema’s general practitioner, Dr David Court, indicated Mr Schanssema attended Dr Lewis on three further occasions in late 2011. When these records were put to him in cross-examination, Mr Schanssema said that he could not recall those further attendances but accepted the accuracy of the records which indicated this had occurred, and accepted that Dr Lewis had prescribed him Pristiq.
11From April 2011 until March 2012, Mr Schanssema regularly attended upon Dr Court and sought advice and treatment for the management of his anxiety, drug use and relationship problems. When Dr Court’s clinical records were put to Mr Schanssema in cross-examination, he generally accepted the contents of what Dr Court had recorded, including references to Mr Schanssema ruminating at times, needing to push himself to socialise, feeling socially isolated, and wanting to stop using drugs. During this period, Mr Schanssema was prescribed Valium, and at times, Avanza, Pristiq and Seroquel. Mr Schanssema also accepted that he used ice, speed and ecstasy to ease his social anxiety.
12On 29 February 2012, Mr Schanssema attended upon psychiatrist, Dr Dianne Grocott. In a letter of that day, Dr Grocott noted that Mr Schanssema had been referred to her regarding his cannabis and benzodiazepine dependence. She noted that Mr Schanssema had ceased using Seroquel, Pristiq and Xanax, but was taking Valium daily and smoking a joint each night. At the time, Dr Grocott noted that Mr Schanssema was getting fit at a gym. Dr Grocott considered there was no evidence of depression or psychosis.
13At the time of the work accident, Mr Schanssema said that he was not taking any antidepressant medication. This accords with Dr Grocott’s letter of 29 February 2012 and is also consistent with Dr Court’s records of 23 February 2012, which state that Mr Schanssema had stopped taking Pristiq one month previously, “with no problem”.
Mr Schanssema’s work accident and claimed consequences
14In the work accident, Mr Schanssema suffered an open fracture to his left tibial shaft. He was thereafter taken by ambulance to the Austin Hospital where he underwent surgery for a debridement and excision of the wound, removal of bone fragments and curettage of the left tibial cortical bone injury.
15On 30 March 2012, Mr Schanssema was discharged with crutches and analgesic medication. Mr Schanssema stated that he continued to use crutches for three months following the surgery. He also attended the hospital’s outpatient clinic for wound care and some physiotherapy. At the time of his discharge from the hospital’s outpatient clinic, it was noted Mr Schanssema had wasting of his calf muscle and loss of sensation in the distribution of the left saphenous nerve.
16In approximately June 2012, Mr Schanssema returned to work with the employer.
17On 18 June 2012, Mr Schanssema attended on Dr Court and complained of panic attacks that were occurring about twice per week and told Dr Court that he was scared about using a chainsaw.
18In August 2012, Dr Court noted that Mr Schanssema was tired from physical work and had loss of sensation in his leg. However, Dr Court considered that Mr Schanssema was able to perform his normal duties.
19Mr Schanssema continued to attend Dr Court on a regular basis thereafter and complained of relationship difficulties, and his ongoing use of recreational drugs and Valium. There were no recorded complaints in relation to his work accident or injuries.
20In June 2013, Mr Schanssema accepted a voluntary redundancy and ceased his employment with the employer. Prior to accepting this redundancy, Mr Schanssema consulted Dr Court, who noted that Mr Schanssema reported he felt some pressure from his employer and “dragged” down. When this clinical record was put to Mr Schanssema in cross-examination, he said that the accident and his injury were part of his decision to take the redundancy, as it had caused him to question his profession. Mr Schanssema also said that his decision to take the redundancy was informed by him feeling unsafe working for his employer and said that there was a “very bad culture in that business”.
21In late 2013, Mr Schanssema obtained employment with Sun Stone as a track force protection co-ordinator. He said that in this role he was responsible for train track safety, and it was lighter and less physical work than the duties he had performed for the employer. Mr Schanssema said in this role he was paid $45 per hour, worked full time and sometimes six days a week. During his employment with Sun Stone, Mr Schanssema said that he experienced pain and panic attacks, but as he did not want people to know this, he “suffered in silence”. Mr Schanssema said that he would sometimes cry in private whilst at work.
22During this period, Mr Schanssema continued to consult Dr Court and sought ongoing advice in relation to his drug use. There were no recorded complaints in relation to his work accident or injuries. On 12 February 2014, Mr Schanssema attended Dr Court and requested antidepressant medication, as he had been experiencing poor sleep for two weeks and was “highly strung”. The clinical note did not state what the source of his stress was.
23On 14 August 2014, Mr Schanssema attended Dr Court and advised he had not been able to attend work the week before as he “felt depressed and unable to function”. At this attendance, Dr Court noted that Mr Schanssema was “managing [his] new job”.
24In October 2014, Mr Schanssema’s mother died unexpectedly after a medical procedure. Mr Schanssema said that he took leave from work at this time, initially to grieve himself and later, to support his father in his grief.
25In November 2014, Mr Schanssema became a father himself, with his girlfriend giving birth to a daughter. Mr Schanssema said that he considered this the “circle of life”, given his mother’s recent passing. Mr Schanssema acknowledged that the pregnancy was unplanned and that his relationship with the mother of his child did not persist. He has generally not lived with his daughter, but has seen her on regular occasions since her birth, and currently sees her approximately once a fortnight.
26In December 2014, Mr Schanssema sought a clearance from Dr Court to return to work following his bereavement leave. In a letter dated 12 December 2014, Dr Court stated that Mr Schanssema’s longstanding anxiety and depression had been under “reasonable control” until the death of his mother, and although he was still recovering from his bereavement, he was fit to return to work as at 15 December 2014.
27Mr Schanssema said that despite receiving this medical clearance, no work was available at Sun Stone and therefore he did not return to his position there. Mr Schanssema said that had he been offered work at that time, he would have taken it, as it would have been a distraction for him and it was a job that he could do without putting strain on his leg.
28In early 2015, Mr Schanssema obtained work as a service technician with a Toyota workshop in Ferntree Gully. He said he was paid $25 or $26 an hour in this role, and he worked full time, including some Saturdays. In his affidavit, Mr Schanssema said that he worked in this role for about four months and was then “let go”. However, in cross-examination, he acknowledged his then employer had not sacked him, but had threatened his job and alluded to this, by suggesting that he sort his personal issues out. Mr Schanssema said he felt he needed to get his health in order and hoped that with time things would improve for him. However, Mr Schanssema said he has been unable to return to any work since.
29On 7 August 2015, Mr Schanssema attended upon Dr Court, who noted that Mr Schanssema had been depressed for the last three weeks, and asked about bereavement counselling. In cross-examination, Mr Schanssema said that he cannot recall seeking this referral from Dr Court. Mr Schanssema said that by that time he felt that his grief was not affecting him as badly as it had previously. Mr Schanssema said he never obtained this bereavement counselling.
30On 13 August 2015, Dr Court wrote a letter (to no known recipient), in which he stated that Mr Schanssema was fit to return to work as at 17 August 2015. Mr Schanssema said he could not recall a discussion with Dr Court regarding this letter.
31On 19 August 2015, Mr Schanssema attended upon Dr Court for the final time. The clinical note from this appointment indicated that Dr Court felt that Mr Schanssema’s improvement had plateaued, and he encouraged Mr Schanssema to consult a new general practitioner, who may be able to offer him assistance with a different approach to his care. Mr Schanssema said that he had lost confidence in Dr Court by this time and considered that he was not providing adequate pain-management advice. Mr Schanssema denied a suggestion put to him in cross-examination that he ceased seeing Dr Court as he had recently suggested that Mr Schanssema was fit to return to work.
32Soon thereafter, Mr Schanssema commenced attending a new general practitioner, Dr David Shap.
33On 18 January 2016, Dr Shap referred Mr Schanssema to the Monash Medical Centre to undergo a neurophysiological study. This was reported as demonstrating a complete left saphenous nerve injury.
34In a report dated 25 November 2016, Dr Shap referred to the work accident and that the nerve injury resulted in constant severe burning pain, aching and numbness in his left leg. Dr Shap prescribed Tramadol medication for his pain relief. Dr Shap considered that Mr Schanssema had developed chronic depression from his injury, pain and inability to work. Dr Shap prescribed Effexor and Valium. At that time, Dr Shap considered Mr Schanssema was permanently unfit for his pre-injury duties, and was unfit for any work for the foreseeable future. However, Dr Shap stated that if Mr Schanssema’s pain and depression improved, he may be suitable for alternative, sedentary work, for which he would require retraining.
35In early 2018, Dr Shap referred Mr Schanssema to clinical psychologist, Dr Efrat Zion. In a report dated 16 February 2018, Dr Zion noted that when Mr Schanssema first presented, he provided a history of longstanding anxiety and depression which has been exacerbated by his work accident. At that time, it was noted that there were numerous stressors on Mr Schanssema, including chronic pain, unemployment and relationship issues. Dr Zion noted that Mr Schanssema’s anxiety symptoms included worrying excessively, difficulty controlling his worry, feeling restless, on edge, difficulty concentrating, fatigue, irritability, sleep disturbance and muscle tension. It was noted that his depressive symptoms included low mood most days, decreased interest in activities, decreased appetite and consequential weight loss, with decreased energy levels and feelings of low self-confidence.
36In a report dated 25 September 2020, Dr Zion stated that he had continued to work with Mr Schanssema on strategies to manage his stress and strategies to handle his thoughts and feelings more effectively, as well as strategies to relax. Dr Zion recommended further psychological treatment was required in order to help Mr Schanssema continue to develop skills and strategies to manage his mood, anxiety and pain. Dr Zion stated that based on his evaluation and observations of Mr Schanssema, as well as what his patient had told him, he was of the opinion that Mr Schanssema’s mental health conditions, particularly his symptoms of sleep disturbance and low energy levels, impacted his capacity to work.
37In 2019, Dr Shap also referred Mr Schanssema to psychiatrist, Dr Igor Shvetsov. In a report dated 31 July 2019, Dr Shvetsov noted that Mr Schanssema reported frequent mood swings with elements of hopelessness and despair. It was noted that his sleep was restless, and his energy and motivation were low. Dr Shvetsov noted that Mr Schanssema had been attending the gym, but not in the previous month. Dr Shvetsov obtained a history that Mr Schanssema was experiencing nightmares and flashbacks about his leg injury every two to four weeks. Dr Shvetsov obtained a history from Mr Schanssema that he had been depressed since his teenage years, but that his depression had intensified after his work injury.
38In a report dated 28 September 2020, Dr Shvetsov referred to Mr Schanssema’s prior psychiatric history and noted that at the time of the work accident, Mr Schanssema had “a mild depression” and was taking antidepressant medication, Escitalopram. When Mr Schanssema was cross-examined about this history, he said he believed he had stopped taking such medication at the time of the work accident. As noted above, the clinical records support Mr Schanssema’s account of this.
39In this report, Dr Shvetsov diagnosed Mr Schanssema as suffering an Adjustment Disorder with Depressed Mood, including development of emotional behavioural symptoms in response to the work accident and the injury he suffered in that. Dr Shvetsov considered that these symptoms caused marked distress, resulting in significant impairment and social and occupational functioning. Dr Shvetsov noted that there were multiple causes for Mr Schanssema’s condition. Ultimately, Dr Shvetsov was of the opinion that given Mr Schanssema’s difficulties in coping with the basic responsibilities of daily routines of life, he was not likely to be able to work on a permanent, reliable and consistent basis.
40In his final report dated 3 March 2021, Dr Shvetsov again noted there were multiple causes for Mr Schanssema’s depression, including the shin injury associated with chronic pain. Dr Shvetsov said that such:
“… a disfiguring shin injury can impair confidence of a well-functioning with a (sic) stable mental health person, but Mr. Schanssema was in a vulnerable mental state, suffering from depression, when he received the injury. Loss of his mother at the moment, when he attempted to go back to work was another misfortune that reinforced his sense of loneliness and self-doubt.”
41Dr Shvetsov said that during his period of treating Mr Schanssema, there was an apparent marked motivational problem in the areas of self-care and future planning. Dr Shvetsov once again concluded that given Mr Schanssema’s failure to cope with basic responsibilities of daily routine and therapeutic self-care, he was even less likely to be able to work on a permanent, reliable and consistent basis.
42Mr Schanssema said that in July 2019, he ceased attending upon Dr Shvetsov because they had a breakdown in their relationship arising from a miscommunication about whether Mr Schanssema’s appointments were to be conducted in person or via Telehealth during lockdown periods in 2020. More recently, Mr Schanssema has been attending psychiatrist, Dr Muruththettuwegama.
43Mr Schanssema said that he sees Dr Muruththettuwegama every six weeks and Dr Shap monthly.
44In a report dated 5 July 2020, Dr Muruththettuwegama stated that he obtained a history from Mr Schanssema as to the work accident and the physical injury suffered in it. Dr Muruththettuwegama also obtained a history of Mr Schanssema not having enough access to his daughter. It was noted that, at that time, Mr Schanssema stated, because of this injury, he experienced pain, anxiety and sleep deprivation, and reported poor self-esteem and lack of self-confidence. Dr Muruththettuwegama was aware of Mr Schanssema suffering mild social anxiety in his mid-20s and that he had been on antidepressants for a short period. However, it was noted there was no major depressive episode before the work accident, but that afterwards Mr Schanssema became depressed and socially isolated. Dr Muruththettuwegama noted that Mr Schanssema was unable to work and that this inability had an adverse impact on his self-esteem and financial situation.
45In a report dated 4 March 2021, Dr Muruththettuwegama stated that in his opinion, Mr Schanssema was suffering from a recurrent depression, which was consistent with his work-related injury. Dr Muruththettuwegama stated that there was “a clear temporal relationship with the symptoms and the accident”. Dr Muruththettuwegama stated that Mr Schanssema reports being depressed and flat in his mood and that his level of motivation was low, such that he struggles to wake up and spends lengthy periods in bed. Dr Muruththettuwegama noted that Mr Schanssema had last worked in 2014 and that he could not maintain his “KPIs” and had to leave his job. Dr Muruththettuwegama stated that Mr Schanssema currently had no capacity to work, which appeared to be due to his depression and anxiety symptoms. Dr Muruththettuwegama noted that Mr Schanssema worried about his injury and ongoing pain, and he was unable to concentrate well. Further, Dr Muruththettuwegama stated that Mr Schanssema’s negative thoughts, lack of motivation and lethargy were contributing to him having no work capacity. Dr Muruththettuwegama stated that it was difficult to predict his future work capacity, but was of the opinion that given he had not done any meaningful work over the last seven years and is currently unwell, it is unlikely Mr Schanssema will be able to work in the near future.
46In a medical report dated 22 February 2021, Dr Shap stated that Mr Schanssema suffered a number of psychiatric conditions and he was of the opinion that he could not currently, or in the foreseeable future, work on a consistent, reliable and permanent basis.
47Mr Schanssema said that he presently takes antidepressant medication, Cymbalta, as well as 5 milligrams of Valium five times a week.
48Mr Schanssema said that he also takes 400 milligrams of Tramadol medication each day. He said that this assists with his pain but makes him feel lethargic.
49In relation to his left leg injury, Mr Schanssema complained that he continues to suffer from numbness and burning across the scar site and through his leg. He stated that his left leg often feels irritated and throbs, and he experiences tightness and sharp shooting pains in that area. Mr Schanssema complained that he has an altered sensation in his left leg around the scar and he has areas of hypersensitivity, as well as some areas where there is no sensation at all.
50Mr Schanssema said that he is unable to comfortably bend over or do any heavy lifting or long walking. He said that he finds clothing uncomfortable if it contacts the scar site so he prefers to wear looser pants.
51Mr Schanssema says he finds it difficult to squat properly and that bending and heavy lifting on his left side can be uncomfortable. He said that when he is shopping, he tends to carry heavier bags with his right hand.
52Mr Schanssema said that he attempted to go back to the gym to try some lower limb weight training, but he struggled to do so. He also said that he attempted to do light jogging, but he found that activities with weight bearing caused him discomfort and shooting pains. He said that eventually he stopped trying. Mr Schanssema said he also no longer does kick boxing.
53Mr Schanssema said that he struggles to walk long distances. He said that he can generally walk a few kilometres, but thereafter it becomes uncomfortable for him and he needs a break.
54Mr Schanssema said that he struggles with heavier household tasks such as cleaning the bathroom, vacuuming and mopping.
55In relation to his psychiatric condition, Mr Schanssema said that he struggles with reduced concentration, memory, motivation and insomnia. He said that he struggles to sleep sometimes, whereas other times he will sleep for 12 hours. Mr Schanssema said that he feels very flat in the mornings and he often wants to stay in bed because he does not want to deal with the negativity and anxiety of the day ahead. Mr Schanssema also said that his anxiety levels are such that he struggles to feel comfortable and minor things send him into panic. He said that he feels teary and irritable.
56Mr Schanssema’s father, Mr Erik Schanssema (“Mr E Schanssema”), provided an affidavit in support of his son’s application. In this affidavit, declared 9 March 2021, Mr E Schanssema acknowledged that he was aware of his son’s prior drug use, but that prior to the workplace accident he had not observed his son’s drug use to affect his working life.
57Mr E Schanssema said that since his son’s workplace accident, he has observed his son to have become significantly depressed and anxious, and goes out socially must less often. Mr E Schanssema noted that his son is panicked by insignificant things and drew a comparison to his son before the work accident, who was not like that.
Medico-legal evidence
Psychiatric impairment
58In May 2016, Mr Schanssema was examined by psychiatrist, Dr Timothy Entwisle. In a report dated 20 May 2016, Dr Entwisle detailed Mr Schanssema’s background, including his pre-existing psychiatric history of anxiety in his teenage years. Following his examination of Mr Schanssema, Dr Entwisle diagnosed him as suffering a Chronic Adjustment Disorder with Depressed and Anxious Mood. Dr Entwisle was of the opinion Mr Schanssema had completely recovered from any psychiatric condition which he had experienced at the time of the work accident and his current presentation was related to other factors, and in particular his mother’s death and shared grief experience with his father. Dr Entwisle considered that, at that time, Mr Schanssema’s inability to return to work was his current, non-work-related psychiatric condition.
59In December 2020, Dr Entwisle re-examined Mr Schanssema. In his report dated 9 December 2020, Dr Entwisle detailed Mr Schanssema’s daily activities and current symptoms. Dr Entwisle then conducted a mental state examination which he considered included Mr Schanssema’s thinking being characterised by “strong illness conviction on a background of significant personal vulnerability, a longstanding history of mental health issues and substance abuse”. Further, Dr Entwisle considered that Mr Schanssema’s function had been significantly impacted upon by his mother’s death, as well as his relationship breakdown. Dr Entwisle remained of the view that Mr Schanssema’s presentation was not explained by his work-related injury.
60In a supplementary report dated 1 February 2021, Dr Entwisle also stated that he considered Mr Schanssema was capable of performing the suitable employment options identified in a CoWork vocational report of January 2021, which included working as an automotive service adviser, motor vehicle claims assessor, train driver and OH & S coordinator.
61Dr Entwisle was given the opportunity to consider the most recent reports of Dr Shap, Dr Muruththettuwegama and Dr Shvetsov. He stated that none of those reports caused him to change his opinion in any material sense.
62In March 2018, Mr Schanssema was examined by psychiatrist, Dr Gregor Schutz. In his report dated 27 March 2018, Dr Schutz detailed Mr Schanssema’s history, including his pre-existing history of mild depression and use of diazepam, cannabis and occasional other illicit drugs. On mental examination, Dr Schutz considered that there was a degree of embellishment and a dramatic flavour to Mr Schanssema’s presentation, and that he appeared preoccupied by perceived wrongdoings. He was also a “somewhat evasive historian”.
63Dr Schutz stated that if he accepted that Mr Schanssema had provided a reliable account of his symptoms, then Dr Schutz was of the opinion that he met the diagnostic criteria of a Chronic Adjustment Disorder with Depressed Mood. It was noted that Mr Schanssema reported lower interest, insomnia, tearfulness, irritability and poor concentration.
64Dr Schutz was of the opinion that the causes of Mr Schanssema’s injury were “multifactorial” as he had a pre-existing vulnerability and there were also non-work-related factors, such as a relationship breakup and the death of his mother. It was also noted that at that time, he had had a breakdown in his relationship with his father and he felt socially isolated and unsupported.
65Dr Schutz was of the opinion that Mr Schanssema had the capacity to work for 30 hours a week provided he had the opportunity for breaks and worked with a supportive employer.
66In October 2020, Mr Schanssema was examined by psychiatrist, Dr Nicholas Ingram. In his report dated 8 October 2020, Dr Ingram detailed the workplace accident and the work Mr Schanssema performed after it. Dr Ingram then noted that at the time of the examination, Mr Schanssema complained that he would not be able to work because of the pain in his legs making it difficult for him to do jobs where he needed to use his legs, as well as due to his depression and anxiety. Dr Ingram noted that Mr Schanssema had some pre-existing depression and drug dependence, but despite that, he was working full time and in a regular relationship at the time of the work accident. In contrast, since the accident, Mr Schanssema has “become more consistently depressed and anxious and has become more withdrawn and less motivated and has been unable to work or engage in many of his previous activities”.
67Dr Ingram diagnosed Mr Schanssema as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. Dr Ingram noted that Mr Schanssema himself had minimised his pre-existing problems, although he had previously seen two psychiatrists. However, Dr Ingram again stated that such pre-existing conditions were not severe enough to have interfered with his life materially or stopped him working. Dr Ingram specifically noted that a few weeks before the accident, Dr Grocott had stated that he was not significantly depressed, although he was dependent at that time on diazepam. Dr Ingram noted that in the eight years since the work accident, Mr Schanssema has been more consistently depressed. Dr Ingram was of the opinion Mr Schanssema’s Adjustment Disorder was largely a secondary consequence of his left leg injury, whilst acknowledging that a component of it was pre-existing.
68Dr Ingram was of the opinion that Mr Schanssema had no capacity for employment at the current time because of his depression and anxiety and the effect that those conditions have on his motivation, concentration and energy levels.
69Dr Ingram also stated that he considered Mr Schanssema’s resentment of what he believes was the employer’s responsibility for what happened to him, and his perception that they had failed to take any responsibility subsequently, also contributes to a component of his depression.
70Dr Ingram stated that he was of the opinion that Mr Schanssema had no capacity to work on a permanent, reliable and consistent basis, including in the jobs proposed by the CoWork vocational report.
71Dr Ingram re-examined Mr Schanssema in March 2021 and made similar conclusions in respect of him continuing to suffer a Chronic Adjustment Disorder with Depressed Mood and Anxiety, and that he was unable to return to work on a permanent, reliable or consistent basis in the foreseeable future.
Lower limb impairment
72In July 2018 and October 2020, Mr Schanssema was examined by pain management specialist, Dr Clayton Thomas. In his report dated 5 July 2018, Dr Thomas detailed Mr Schanssema’s background, treatment provided for his injury and his symptoms and complaints. Dr Thomas noted that Mr Schanssema presented with a significantly antalgic gait, sensitivity on his left leg, with it being 1 to 2 degrees cooler than his right leg. Dr Thomas also noted that the left calf was 0.5 centimetres smaller than his right calf.
73Dr Thomas considered that there was no evidence of significant motor abnormality and considered it uncertain as to why Mr Schanssema was on Tramadol. Dr Thomas considered that Mr Schanssema was capable of performing modified pre-injury duties and hours, but that he could not use heavy equipment due to his limp. Dr Thomas also considered Mr Schanssema was capable of working in alternative suitable employment.
74In his subsequent report dated 19 October 2020, Dr Thomas noted that at the time of this examination, Mr Schanssema primarily spoke of his mental health, and reported being anxious and depressed, with poor memory and poor concentration. Dr Thomas noted Mr Schanssema complained of pain in his left leg, and the ways in which Mr Schanssema reported his injury restricted his activities. However, as the examination was conducted over Zoom, it was not possible for Dr Thomas to physically examine Mr Schanssema.
75Dr Thomas considered that, by this time, Mr Schanssema had developed a Tramadol dependency. He considered that Mr Schanssema had minimal physical restrictions and was physically capable of performing a wide range of physical activities. In relation to jobs proposed as suitable by CoWork, Dr Thomas stated that he considered Mr Schanssema would not be able to work as a train driver whilst on his current medication, and his mental health issues made it unsuitable for him to work as an ambulance driver, but that the other roles were suitable for him.
76In October 2020, Mr Schanssema was examined by neurologist, Dr David Freilich. In a report dated 29 October 2020, Dr Freilich detailed the circumstances of the work accident and treatment provided. Dr Freilich noted that on examination, there was some tenderness over the scar and the adjacent tibia, and that Mr Schanssema’s whole left leg was partly wasted. Dr Freilich recorded the circumference of his left thigh was 47 centimetres and his right thigh was 50 centimetres; and his left calf was 34 centimetres and on his right calf, 38 centimetres. Dr Freilich also noted that there was hypersensitivity to pinprick and diminished touch sensation along the medial aspect of the left lower leg below the scar down to the ankle. Such sensory impairment was along the distribution of the saphenous nerve.
77Dr Freilich accepted that Mr Schanssema’s current symptoms included pain in the area of the injury and in the tibial fracture, as well as sensory symptoms in the distribution of the saphenous nerve. It was noted that Mr Schanssema’s pain was being treated with Tramadol. Dr Freilich then noted that Mr Schanssema’s pain and abnormal sensation in his left leg caused him to walk with a limp and prevented him returning to pre-accident activities such as dancing, going to the gym and kick boxing. Dr Freilich noted that although Mr Schanssema had managed to return to work after the accident, he understood that he did so doing lighter duties. Dr Freilich said Mr Schanssema would not be fit to undertake heavier duties.
78Also in October 2020, Mr Schanssema was examined by vascular surgeon, Mr Mark Lovelock. However, this medical examination was conducted via Zoom, and therefore Mr Lovelock was not given the opportunity to examine Mr Schanssema in person. In a report dated 26 October 2020, Mr Lovelock stated that saphenous nerve injuries should not cause any major problems or restrictions. Therefore, Mr Lovelock considered that there was no reason Mr Schanssema’s nerve injury would cause him an inability to return to full-time work. However, Mr Lovelock observed Mr Schanssema’s symptoms of Post-Traumatic Stress and Anxiety Disorder, and said that he would defer to a psychiatrist in respect of those problems.
79In November 2020, Mr Schanssema was examined by occupational physician, Dr Kilner Brasier. In a report dated 19 November 2020, Dr Brasier detailed Mr Schanssema’s history and his findings on examination. Dr Brasier then stated that, in his opinion, Mr Schanssema had numerous restrictions as a consequence of his left leg injury. Such restrictions included a reduced left leg function due to wasting of his left leg; reduced ability to carry loads greater than 10 kilograms; restricted standing/walking capacity to approximately 20 to 30 minutes; restricted ability to drive a manual vehicle, climb stairs and use ladders or raised platforms and reduced sensation to potential trauma to the left lower limb. Therefore, Dr Brasier was of the opinion that Mr Schanssema had no capacity for employment in his pre-injury duties, nor did he have a realistic work capacity to work in roles proposed by the vocational assessor, including an occupational health and safety adviser, customer service officer, despatch and receiving clerk, sales assistant and sales representative. Dr Brasier was of the opinion that such work was not realistic, as all such roles would require significant prolonged standing and walking demands.
80In a supplementary report dated 15 February 2021, Dr Brasier also stated that, in his opinion, Mr Schanssema did not have a realistic work capacity to work as an automotive service adviser, fleet controller or train driver as it would place him at risk of re-injuring or aggravating his left leg condition. Further, Dr Brasier did not consider it was realistic for Mr Schanssema to work as an occupational health and safety coordinator as his difficulties with concentration would prevent him undertaking a retraining course to obtain suitable qualifications to work in that role.
Credibility
81I considered Mr Schanssema to be a reasonably cooperative witness who was frank in respect of his pre-existing psychiatric problems and his extensive drug use. He generally accepted the accuracy of the clinical records, and when he could not recall certain events, he said so. Mr Schanssema was cross-examined as to the history Dr Shvetsov had obtained from him, including that he was on antidepressant medication at the time of the accident. Mr Schanssema stated that he did not believe he was taking the medication at the time, but conceded he could not be certain of that. I considered Mr Schanssema’s evidence in respect of this issue an example of his genuine and cooperative nature, especially in circumstances where the contemporaneous clinical records corroborated his account that he was not taking such medication at the time.
82The only aspect of Mr Schanssema’s evidence that I considered confusing and possibly unreliable related to the circumstances of his departure from his job at Ferntree Gully Toyota. However, I accept that there were a range of factors at play at that time which, in Mr Schanssema’s mind, rendered his employment there untenable. Save for this reservation, I generally accept Mr Schanssema as a reliable witness.
The potential multiple contributors to Mr Schanssema’s current incapacity – his pre-existing psychiatric condition, the work accident and his mother’s death
83It is apparent from the medical material, and Mr Schanssema’s own evidence, that there are a multitude of causes for his current psychiatric condition.
84The defendant accepts that the work accident was a cause of an aggravation to Mr Schanssema’s pre-existing psychiatric condition and this aggravation persists to the current time. However, the defendant alleged that the death of Mr Schanssema’s mother was an intervening act of such significance that it prevented him from working, and that this is the persisting reason for Mr Schanssema’s current claimed incapacity for work. The defendant submitted that if not for this event, Mr Schanssema would still be working for Sun Stone, in a role where he was paid significantly more than in his pre-injury earnings.
85In support of the defendant’s submission that I should therefore dismiss Mr Schanssema’s claim on the basis of this intervening event, I was referred to several Court of Appeal authorities which dealt with applications by plaintiffs where there had been more than one incident or impairment impacting upon the plaintiff’s earning capacity and/or causing the same pain and suffering consequences.
86In Shock Records Pty Ltd v Jones,[1] the Court of Appeal considered an appeal in respect of a worker who injured his back at work, but who also suffered a pre-existing psychiatric condition, as well as a psoriatic arthritis condition. The Court of Appeal upheld the trial judge’s decision that the plaintiff had satisfied the court that his work-related back injury was, of itself, enough to cause the requisite loss of earning capacity. The court noted that in undertaking this task, it was necessary to exclude contribution from other medical conditions.[2]
[1] [2006] VSCA 180
[2] Shock Records Pty Ltd v Jones (ibid) at paragraph [69]
87In Dean v Crossway Holdings Pty Ltd,[3] the Court of Appeal considered an application for a worker who had suffered injury to his spine in two separate incidents at work. The plaintiff had settled a common law claim in respect of the second incident, and the issue was whether the plaintiff should be granted leave to commence proceedings for the first incident. The Court of Appeal ultimately held that the plaintiff was able to demonstrate very considerable pain and suffering consequences arising from the first incident, but the plaintiff was unable to satisfy the court that he suffered the requisite pecuniary loss, as it was the second incident which had “destroyed the appellant’s earning capacity altogether”. The second incident was considered “an independent supervening event” and the plaintiff had failed to establish, on the balance of probabilities, that he suffered the requisite pecuniary loss as a consequence of the first incident.
[3] [2011] VSCA 198
88In AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[4] the Court of Appeal held that where there were two separate incidents, the Court cannot consider the cumulative consequences of the injuries arising from both incidents, but rather must look at the incidents individually and consider only the consequences arising from the compensable injury suffered in the incident the subject of the claim.
[4] (2012) 34 VR 309
89In Peak Engineering Pty Ltd & Anor v McKenzie,[5] the plaintiff, subsequent to suffering a left hand injury at work, also developed an unrelated left knee injury. The plaintiff then suffered numerous restrictions, some of which were attributable to both injuries. In considering the plaintiff’s serious injury application in respect of his hand injury, the Court of Appeal stated that the court should assess those consequences referrable to the compensable injury, whilst excluding the others. The onus is on the plaintiff to disentangle such consequences.
[5] [2014] VSCA 67
90Further, the defendant also referred me to a decision of his Honour Judge Dyer in Riga v Victorian WorkCover Authority,[6] a case in which the plaintiff’s incapacity for employment stemmed from a “constellation of injuries and conditions”. While Judge Dyer was satisfied that the plaintiff’s work-related back injury still played a role in the diminution of the plaintiff’s incapacity for work, the application of Peak[7] required a greater degree of disentanglement as to the actual cause of that diminution. In Riga, Judge Dyer considered the plaintiff failed to discharge his onus in respect of that disentanglement.
[6] [2015] VCC 270
[7] Peak Engineering Pty Ltd & Anor v McKenzie (supra)
91Having considered these authorities, I shall now apply the principles contained in them to the application before me.
Aggravation of Mr Schanssema’s pre-existing psychiatric condition
92At the time of the work accident, Mr Schanssema suffered a pre-existing psychiatric condition, which included symptoms consistent with anxiety, some depression and drug dependence. As I must only have regard to the impairment arising from his work-related psychiatric condition, in considering this application, there must be a comparison between Mr Schanssema’s pre-existing condition, with the aggravated state.
93I am satisfied that at the time of the work accident, Mr Schanssema was not taking antidepressant medication. Further, when he was examined by psychiatrist, Dr Grocott, one month prior to the accident, she expressly stated that Mr Schanssema was not depressed. Notwithstanding his apparent addiction to benzodiazepine and cannabis, Mr Schanssema had been gainfully employed in a full-time role with the employer for a period of seven years at the time of the accident. He was in a relationship and undertook activities, including the gym and kickboxing. I am therefore satisfied that any impairment arising from his pre-existing psychiatric condition was relatively minimal at the time of the work accident.
Mr Schanssema’s mother’s death and its role in his current impairment
94The death of Mr Schanssema’s mother was, as described by Dr Shvetsov, “another misfortune” in his life. As would be expected, it was a devastating event, and Mr Schanssema required some time off work to deal with his grief and to assist his father. I accept that he subsequently returned to work with a different employer, but that his grief still featured ten months later when Dr Court provided him with a referral for grief counselling. I accept that Mr Schanssema did not receive such counselling. I do not accept the defendant’s submission that his failure to get such counselling has compounded the situation. I note that the death of his mother has not significantly featured in the reports of Mr Schanssema’s current treating practitioners. Further, I consider it likely that if Mr Schanssema had a persisting need for grief counselling, this would have been identified and such treatment offered by either his treating psychologist and/or psychiatrists.
95Mr Schanssema’s injury is a psychiatric one, and the death of his mother resulted in a further insult to his already damaged psychiatric state. I do not accept the defendant’s submission that this was an intervening event of such significance that it pushed Mr Schanssema on a different trajectory. I consider it may have simply hastened the further decline of Mr Schanssema’s psychiatric state, which I am satisfied was already aggravated as a consequence of the work accident.
96After his work accident and prior to his mother’s death, Mr Schanssema had been prescribed antidepressant medication, and he said he had experienced panic attacks and was sometimes tearful at work. As this aspect of Mr Schanssema’s application is based on a psychiatric injury, his credibility is especially important to my assessment of his evidence.[8] As stated above, I considered Mr Schanssema a genuine witness and accept his account of such symptoms occurring prior to his mother’s death.
[8]Mobilio v Balliotis [1998] 3 VR 833, 836; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74]
97The defendant referred to other stressors in Mr Schanssema’s life as being possible causes for his psychiatric condition and incapacity – the temporary breakdown in the relationship with his father and issues with the mother of his child. These, too, may have caused him anxiety and stress at different times, but on the evidence before me, I do not consider they are of sufficient significance to have caused him an ongoing psychiatric incapacity.
98I have given considerable weight to the reports of Mr Schanssema’s treating practitioners – Dr Shap, Dr Zion, Dr Shvetsov and Dr Muruththettuwegama. I consider their opinions support a finding by me that a significant cause of Mr Schanssema’s current psychiatric condition and incapacity for employment is the work accident and not his mother’s death.
99I am mindful this is a gateway provision which either precludes or permits Mr Schanssema to bring a claim for damages for loss of earning capacity.[9] If the defendant wishes to explore the impact of Mr Schanssema’s mother’s death (or any other non-work-related stressors) upon his earning capacity at different moments in time, I consider that is a matter best explored at trial, with the benefit of hearing evidence in respect of this from his treating practitioners.
[9]Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [37]
Impact of Mr Schanssema’s psychiatric impairment on his earning capacity
100Mr Schanssema bears the onus of satisfying me that, as at the date of hearing, as a consequence of his psychiatric impairment, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Schanssema is capable of earning, whether in suitable employment or not.
101In undertaking this task, I must compare what Mr Schanssema is capable of earning in suitable employment, with his pre-injury earning capacity.
102The parties agreed the figure that most fairly reflected Mr Schanssema’s pre-injury earning capacity is $58,453 gross per annum or $1,124.10 week.
103Mr Schanssema must therefore satisfy me that, as a consequence of his psychiatric impairment, he has suffered a permanent loss of earning capacity, such that he is incapable of earning more than $674.46 gross per week, and that such a restriction on his earning capacity will be permanent.
104I accept Mr Schanssema’s account of difficulties with concentrating, poor memory, that he lacks motivation, and spends a significant amount of time in bed.
105In relation to the numerous medical opinions offered in this matter, I am most assisted by Dr Shap, who has treated Mr Schanssema now for over five years. Since treating Mr Schanssema, he has arranged for both psychiatric and psychological treatment. Notwithstanding such treatment, Dr Shap considers that due to his psychiatric condition, Mr Schanssema has no capacity for work on a consistent, reliable and permanent basis.
106Likewise, Dr Zion, who has provided psychological treatment to Mr Schanssema for over three years, considers that his psychiatric condition impacted his ability to work. A similar opinion was expressed by his current psychiatrist, Dr Muruththettuwegama, who stated that Ms Schanssema has no current work capacity.
107Mr Schanssema’s previous psychiatrist, Dr Shvetsov, considered that Mr Schanssema’s inability to cope with basic responsibilities of daily routine and therapeutic self-care made it even less likely he would be able to work on a permanent, reliable and consistent basis.
108Dr Ingram was of the opinion that due to his psychiatric condition, Mr Schanssema has no capacity for employment.
109In contrast to those opinions, Dr Entwisle considered that Mr Schanssema is capable of undertaking suitable employment, and Dr Schutz was of the opinion he could work for 30 hours per week. I consider that Dr Entwistle’s and Dr Schutz’s findings were influenced by their consideration that Mr Schanssema’s condition was not explained by his work injury and there was a degree of embellishment in his presentation. However, as stated previously, I accepted Mr Schanssema as a credible and reliable witness and therefore am not assisted by these doctors’ opinions on his work capacity.
110Therefore, in assessing Mr Schanssema’s capacity for suitable employment, I have attached considerable significance to the preponderance of medical opinions, particularly from his treating practitioners, which supports a finding by me that, due to his psychiatric impairment arising from the work accident, Mr Schanssema has no capacity for suitable employment. Considering the whole of the evidence, I am satisfied Mr Schanssema presently suffers a loss of earning capacity of at least 40 per cent.
111I am also satisfied that this loss of earning capacity is permanent. Given Mr Schanssema has received psychological and psychiatric treatment for several years, with no significant improvement, I am satisfied that there is no prospect of his earning capacity improving in the future.
112Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr Schanssema are “at least very considerable”.[10] Given my acceptance that Mr Schanssema’s psychiatric impairment prevents him from working in any suitable employment, the pecuniary disadvantage to him from this work accident is so great that I consider his loss of earning capacity can be described as “at least very considerable”.
[10] Section 134AB(38)(c)
113As Mr Schanssema has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his psychiatric impairment, it is not necessary for me to consider separately his pain and suffering consequences.[11]
[11]Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
Mr Schanssema’s left leg impairment
114In circumstances where I am granting leave to Mr Schanssema to seek common law damages under both heads for his psychiatric impairment, it is not necessary for me to separately consider whether his claim for left leg impairment also meets the threshold.
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