Scicluna v Central Gippsland Health Service
[2009] VCC 1022
•11 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-04220
| JOSEPH SCICLUNA | Plaintiff |
| v | |
| CENTRAL GIPPSLAND HEALTH SERVICE | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26, 27, 28 and 29 May 2009 |
| DATE OF JUDGMENT: | 11 September 2009 |
| CASE MAY BE CITED AS: | Scicluna v Central Gippsland Health Service |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1022 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – claim for weekly payments of compensation for mental injury based on work place stress – rejection or original claim – whether s.82(2A) are applicable – whether the plaintiff’s claim in fact related to disagreement over salary arrangements – whether any entitlement extends into and beyond second entitlement period – additional defence pursuant to s.103(7) - factors to be considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M O’Connor | Maurice Blackburn Lawyers |
| For the Defendant | Mr J Batten | Minter Ellison |
| HIS HONOUR: |
General Background
1 This matter comes before me by way of a Writ issued by the plaintiff against the defendant, which was his employer, such Writ being dated 12 September 2008. The action is brought pursuant to the Accident Compensation Act 1985 (“the Act”). The plaintiff is seeking statutory benefits, namely weekly payments of compensation from 30 March 2006 to date and continuing and payment of reasonable medical and like expenses. The injury relied upon is essentially psychological or psychiatric in nature, and allegedly occurred as a result of stress throughout the course of the plaintiff’s employment with the defendant and, in particular, in late March 2006. The defendant has admitted employment, the lodging of a claim on 23 May 2007, the rejection of same and the referral of the matter to conciliation.
2 Mr M O’Connor of counsel appeared on behalf of the plaintiff. Mr J Batten of counsel appeared on behalf of the defendant. Oral evidence was adduced from the plaintiff; Monica Pauline Scicluna, being the plaintiff’s wife; Dr Bruce Johnston, being the plaintiff’s treating general practitioner; David Glenn Martin, being a workmate of the plaintiff; and Dean Anthony Harrington, another former workmate. Those witnesses were called as part of the plaintiff’s case. The defendant adduced oral evidence from Michael Anthony Clamp, Director of Corporate Services of the defendant; and Rowan Martin Fitzgerald, General Manager, Support Services, of the defendant at the relevant time. The balance of the evidence was introduced by way of tendering of the documents. Counsel also made detailed submissions.
The Conduct of the Hearing
3 I shall now set out a summary of the evidence called on behalf of the parties. This shall include reference to some non-controversial matters and facts that are evident from the tendered material.
(a) The plaintiff and his evidence-in-chief 4 Before turning to the plaintiff’s background and a summary of his evidence-in- chief, I would say at the outset that I found the plaintiff to be an honest witness and I am not of the view that his credit was in any way damaged. I shall be alluding to this again subsequently.
5 The plaintiff is aged 56 years, having been born on 25 September 1952. He is originally from Malta, and came to Australia at the age of 11 years. He was educated to Year 9 level, and he completed an apprenticeship as a fitter and turner. He then worked in that occupation with CIG whilst also doing a course at RMIT as a toolmaker specialising in injection moulding. After that he worked with Diecraft Australia which specialises in such work. Having been so employed for four or five years, he then worked for Coles & Garrard maintaining machinery for approximately six years. In approximately 1981 he then moved to Sale and commenced working as a fitter and turner at Gippsland Base Hospital – effectively, that is, with the defendant.
6 Whilst the title of this employer may have changed, so that it is now that of the present defendant, the plaintiff remained at the Sale Hospital until March 2006. However, from approximately 1986 the plaintiff’s position was that of Assistant Engineer.
7 In approximately mid-1986 Mr Bruno Kapenberger took over as Chief Engineer. The plaintiff worked as his assistant with no significant changes in his role between 1986 and 2004. His work involved him in preventative maintenance, maintaining the laundry, tasks involving medical air, suction, steam, hot water and the like. There were various other staff members who worked with or under the plaintiff in his role as Assistant Engineer and these included painters, fitters and an electrician, a carpenter, a boiler attendant and other workers. There were also apprentices, the number of these varying. The plaintiff both supervised and performed “hands on” work. However, the bulk of such work was delegated to others and involved the plaintiff in supervision.
8 The engaging of sub-contractors was mostly performed by Mr Kapenberger as Chief Engineer. The hospital itself consisted of the main building, together with a laundry and a community care building with a home for the elderly. With the passage of time, the work also involved duties at the Maffra and Heyfield Hospitals. The plaintiff was responsible for maintenance work at all these locations, although the Chief Engineer was largely responsible for work at Heyfield and Maffra.
9 The plaintiff essentially worked a 38 hour week, his hours being between approximately 8.30am and 4.30pm, but he was also on-call when not actually in attendance. The “on-call” duties were shared on a fortnightly basis with Mr Kapenberger. However, because of the demands, some other staff members were also trained in relation to “on-call” duties. Nevertheless, the plaintiff was still frequently called in so as to ensure that the work was properly done and would be on “standby” in this regard. By 2004, those on-call were the plaintiff, Mr Kapenberger, two fitters and an electrician. A plumber was later added to that list. Each did approximately ten weeks per annum on-call, but the plaintiff was also on standby at all times in case he was needed.
10 The number of times that the plaintiff was called out varied depending upon who else was on duty, but he estimated that he was called out, on average, five times per week. In the interests of fairness, the number of call outs was annualised and averaged. The resultant figure was five call outs a week, and payment was made to each staff member who was on-call on this basis. The payment was made for five call outs regardless of whether the actual number was, for example, one or ten.
11 In 2004 the Hospital Board was dismissed. An administrator, Mr Peter Craighead, was appointed. Shortly thereafter a number of the staff, and some with whom the plaintiff had been working and who were friends of his, left.
12 In September 2005, Mr Rowan Fitzgerald, was appointed as Assistant Administrator, and turned his attention to the engineering section of the hospital in which the plaintiff worked.
13 At about this time the Chief Engineer, Mr Kapenberger, resigned. This was of concern to the plaintiff. Mr Fitzgerald moved into Mr Kapenberger’s office, which was next to the plaintiff’s, but there was no consultation with the plaintiff and he was not aware of Mr Fitzgerald’s role. It also meant that the plaintiff then had to do his own work plus that of the Chief Engineer. Furthermore, the regular accreditation process by which the performance of the hospital was judged was imminent. There was also a budget in place for the replacement of the chillers. This involved negotiations concerning chemicals and the like. Had the Chief Engineer been working, the plaintiff would not have required to do as much work in relation to the accreditation process, which is essentially a check as to whether the hospital is maintaining the right safety procedures and is generally “up to scratch”.
14 It was the accreditation of the engineering section that particularly involved the plaintiff. Documentation as to preventative maintenance has to be carried out in this regard. The preparation of this also fell to the plaintiff. The plaintiff also had to be certain that such things as fire audits were correct. The plaintiff considered this to be normally the Chief Engineer’s job and not something which fitted well with his particular skills. He encountered many difficulties in coping with it, and had to take a lot of work home. He also had to continue performing his normal duties, including “on-call” work.
15 The plaintiff began to experience stress-related symptoms, such as stomach cramps. He attended his general practitioner, and believed this to be in approximately October/November 2005. He was given medication and advised to take a holiday, which he could not do because of the demands of work.
16 The accreditation process was completed around about Christmas 2005. The accreditors in fact commended the plaintiff on the job that he had done.
17 The plaintiff then took a couple of weeks of holidays in January 2006. Upon returning to work, he had to implement some of the recommendations of the accreditors. These recommendations included matters relating to the fire audit. The plaintiff had not completed this by March 2006 when he ceased work.
18 When he returned to work after the Christmas break, the plaintiff was still not coping well. There had been changes in the ordering system relating to the countersigning of maintenance material. This caused problems, which arose between September 2005 and March 2006. The plaintiff could no longer simply orders and get parts as they were needed. Every item required had to be signed for and countersigned by the administrator, this causing considerable delay. Mr Craighead was the administrator at the time. Not only delay, but conflict was caused by this procedure.
19 In addition, Mr Fitzgerald sought to change the system in relation to payment for “call outs”. Essentially the averaging sample was taken over a shorter period, and this resulted in a decreased number of payments. This caused further conflict. The plaintiff was the “meat in the sandwich” in these disputes which were essentially between Mr Fitzgerald and the staff. In particular, the tradesmen, such as David Martin and Dean Harrington, were complaining.
20 Both the new ordering system and the dispute concerning call outs caused stress to the plaintiff, who had some brief discussions with Mr Fitzgerald concerning it. Ultimately, there was a further change to the ordering system, but it involved going to the head of the stores group for approval in relation to items required, as opposed to going to the administrator. There were still delays, although they were not as great. Requisitions still had to be countersigned.
21 The alteration in relation to the call outs was that Mr Fitzgerald wanted to change the number of these for which people received payment from five per week to three per week, although the three year average was five. It was decided to have a trial period of three months in relation to this. The payment for five callouts had previously been made as a result of the averaging system regardless of the number of calls. The plaintiff had also received extra money for being on standby. He was aware that the proposed change would cause considerable conflict, and he argued with Mr Fitzgerald concerning this. Numerous discussions took place. The staff did not think the proposed new system was fair, particularly as it could involve a wage reduction.
22 In March 2006, on a particular day, the plaintiff commenced experiencing symptoms approximately two hours after arriving at work. At the time the plaintiff was “under the pump” but nothing in particular occurred on the morning in question. However, another issue was that he was in fact offered the Chief Engineer’s job with its additional responsibility, but was offered less money to do this than he was currently receiving. The plaintiff would not agree to this, and thus further conflict with Mr Fitzgerald. When the plaintiff calculated that he would in fact be earning $12,000 per annum less than what he was currently earning, and told Mr Fitzgerald that he was not going to accept the position of Chief Engineer, it was suggested to him that he should take a redundancy. The plaintiff was about to have an operation on his ankle, and was told by Mr Craighead that the matter might be discussed further after he returned from this surgery. In answer to a question of mine, the plaintiff indicated that, to his knowledge, Mr Fitzgerald did not have an engineering background and scarcely left his office. I might add that the plaintiff became quite noticeably distressed during the course of his evidence, and particularly at about this time.
23 The plaintiff thought that, after his years of service, it was most unfair that it be suggested that he take a redundancy because of his refusal to take the Chief Engineer’s job.
24 Mr Fitzgerald continued to ask the plaintiff whether he had made up his mind in relation to the Chief Engineer’s job, and the plaintiff continued to say that he was not going to accept it. Mr Fitzgerald used words to the effect that the hospital did not require both a Chief Engineer and an Assistant Engineer. In other words, the new position would be two jobs rolled into one, but with a lower salary. The plaintiff said that, prior to Mr Kapenberger resigning, he had already been “flat out”.
25 Whilst Mr Craighead had said that the matter would be discussed following the plaintiff’s ankle operation, that in fact never eventuated because, between time of the discussion and the proposed ankle operation, the plaintiff was flown to Melbourne with a suspected heart attack. Mr Craighead had indicated to the plaintiff that he did not want him to leave.
26 On the day that he suffered the onset of cardiac-type symptoms in March 2006, the plaintiff became aware of a feeling of unwellness and pains across his chest, leading to him going to Casualty. Prior to going to the Casualty Department at the Hospital, the plaintiff had spoken to Dean Harrington. At the time he was feeling “pretty stressed out”, and was aware of no other stresses in his life other than those involving work. Apparently the plaintiff was subjected to some tests and retained in hospital overnight for observation. The next morning he was flown by helicopter to St Vincent’s Hospital in Melbourne. An angiogram was later performed, and this did not reveal any abnormality.
27 Subsequently the plaintiff saw his general practitioner, who diagnosed depression and stress. The plaintiff was put on medication for his depression, and believes that such medication was Zoloft. That medication has subsequently been changed upon occasions, and he is currently on Movex. He has also been on Anaprox.
28 Thereafter the plaintiff, whilst attending at his place of work for the purposes of medical appointments, and on at least one occasion seeing Mr Craighead and Mr Fitzgerald whilst there, in fact did not return to performing any work duties. It would seem that a job offer was made to the plaintiff by the defendant, but neither the plaintiff nor his doctor seem to have been of the view that he was able to return to work.
29 The plaintiff completed monthly applications for leave and provided medical certificates. Originally these were not WorkCover certificates. The plaintiff was paid sick leave for approximately 12 months. He had considerably accumulated leave as he had not missed much time from work over the years. Indeed, he hardly took rostered days off much less sick leave. His annual leave had also accumulated.
30 After he had used up his sick leave, the plaintiff was paid annual leave but only his basic salary. His on-call allowance was removed, this occurring just before Christmas 2006. Thereafter he was placed on long service leave, but did not get to take all of this because he received a letter saying that, as he could not continue to do his duties, his position would be terminated. He was then paid five weeks in lieu of notice together with the balance of his long service leave at the basic rate.
31 Originally the plaintiff did not put in a WorkCover claim or provide WorkCover certificates because he thought that he would use up some sick leave, and then be able to return to work without going through the difficulties of a WorkCover claim. His doctor, Dr Bruce Johnson, also advised this so that “hassle” could be avoided. However, after seeing a psychologist (Mr John Reeves) to whom he had been referred, and because he was not improving, following a discussion with that psychologist he made a WorkCover claim. The plaintiff agreed that the description of his symptoms which he had given to the various medical examiners was accurate. In relation to his current ability to work, he stated that he had tried working at home with his brothers, but that was not a very successful attempt because he quickly loses his temper and starts abusing people for no particular reason. His concentration is impaired, and he does not seem to be able to do what he wants. He did not believe that he would be able to go back into the workforce and work with other people.
(b) Cross-examination of the plaintiff 32 As might be expected in a case of this nature, the plaintiff was cross- examined at some length.
33 The plaintiff agreed that the death of his only son had had a devastating affect on him. I hasten to add that Mr Batten tackled this difficult and tragic topic – which is relevant in a claim based upon stress, depression and the like – in a most tactful and diplomatic manner. Whilst the plaintiff, very understandably, became distressed when asked about it, the ventilation of it at some stage was basically inevitable.
34 The plaintiff agreed that he had owned a 220 acre farm in Browns Road, Fulham, and had sold 210 acres of it in mid 2008. He retained ten acres on which he decided to build a house which was a kit home. He agreed that he had lodged documents with the local shire indicating that he was the owner/builder. The construction of the house commenced after the sale of the farm. He also agreed that, after selling 210 acres and retaining ten, he and his wife cleared about $900,000.
35 In relation to his brothers, he stated that they used to come and help him on the farm by doing such things as fencing and drenching cattle. He had tried to continue to run the farm. He had not registered for employment after ceasing work with the defendant on 23 March 2006 or taken steps to return to work. He said that he had not been ready to go back to work, and had been told by his general practitioner that he could not. He agreed that the defendant had sent to him return to work offers involving such things as clerical duties and work in areas such as the laundry, engineering maintenance and food services. Apparently this offer was made on 6 June 2007, but the plaintiff declined it on the basis that he was not ready to return to work and his treating doctor had told him this. Ultimately he agreed that he might have told the defendant that he would “go down the compo route” unless he was given a redundancy package equivalent to two years wages. He also agreed that the defendant effectively told him that there was no redundancy available for him because he was a valued employee, this discussion occurring after the plaintiff received a letter dated 21 December 2006 when he was advised that his sick pay was no longer going to include on-call allowances and back up or standby payments. There had been a discussion about on-call and standby arrangements in early 2006.
36 The plaintiff could also recall that there may have been a memorandum of 26 September 2005 advising that Mr Fitzgerald had been seconded to the position of Acting General Manager, Support Services, although the plaintiff had some reservations concerning his recollection of this.
37 The plaintiff said that he had worked closely with Mr Kapenberger who was a workmate, but not a close friend. He did not know why Mr Kapenberger had resigned but believed that there had been argument between him and Mr Fitzgerald. He knew nothing of allegations that Mr Kapenberger had been “ripping the hospital off”. He was also unaware that the administrator had engaged an organisation to conduct a due diligence in relation to the correct financial position of the hospital as at 30 October 2004. The plaintiff was aware of financial problems but not aware of particular details or investigations.
38 The plaintiff said that he anticipated changes and was not opposed to the concept of change. He did not resent Mr Fitzgerald being placed in a position of authority above him, but was not happy about it and the two had little to say to each other. Mr Fitzgerald prepared the written work for the Fire and Emergency Services accreditation, but the plaintiff said that mostly it was on his advice. The accreditation itself was a “one off” process, but its recommendations had to be implemented.
39 The plaintiff agreed that he had two weeks off in January 2006 for holidays, and could not remember whether he had taken a week off to attend a wedding in Perth in November 2005 (later evidence would suggest that this in fact occurred). He had visited his general practitioner in September of that year. He joined the Health Services Union on 6 February 2006. The plaintiff denied that he joined the union in order to fight a campaign that he was bringing through his compensation claim, or that he was told by the union to go back to Dr Johnston in relation to his problems. He could recall going to see Dr Johnston concerning stomach cramps, and that may have been in February 2006. It was also possible that he told the doctor that he was angry and frustrated because of what was occurring at the hospital.
40 Following being flown to Melbourne for his cardiac problems, the plaintiff was referred back to Dr Johnston. He agreed that it was thought that he had suffered a heart attack when admitted to St Vincent’s Hospital in March 2006. He agreed that he had received a major cardiac scare. It was a stressful time. The plaintiff had no recollection of suffering any chest pains after the episode that caused the trip to St Vincent’s Hospital. He could recall having a stress test approximately a year later. He denied that his cardiac situation was a cause of ongoing worry.
41 During 2006, the plaintiff saw Mr John Reeves, psychologist, on four occasions. He was referred to him by Dr Johnston. He can remember telling the psychologist that the medication which he was taking was of assistance, but said that he was not ready to go back to work as at mid 2006. He saw Mr Reeves again in 2008, and believes that he was again referred by Dr Johnston.
42 The plaintiff also agreed that, in January 2008, he was advised by his solicitor not to attend any further discussions with the defendant, and believes that this advice was given because he was getting too upset about it all.
43 After the plaintiff’s services with the defendant were terminated, he cashed in his superannuation and commenced on a pension of $465.13 per fortnight, this starting from approximately 25 September 2008. His wife works part- time, and he has not sought any addition benefits from Centrelink or enquired as to suitable work. He agreed that he had been fishing at Narooma for some four days with his brother in January 2008, which he enjoyed. The plaintiff agreed that one of the issues which he had with the defendant related to the amount of his annual salary for the purposes of calculating his superannuation entitlement. The removal of the allowances that have been discussed would have an effect in this regard. The plaintiff had meetings with Mr Fitzgerald after receiving the letter at the end of 2006 which indicated that the extra allowances would not longer be paid.
44 In relation to the type of work that he did, the plaintiff agreed that there were occasions when he had deputised for Mr Kapenberger and done his work for short periods. When so doing, he would receive work orders, divide these by priorities, and supervise and take part in the progress of work by maintenance staff through to final inspection. He would also maintain records of work orders, product lists, meter readings, all the treatment plants and the like. There were many other duties involved, including such things as the running of fire drills. He was a supervisor of the tradesmen.
45 The plaintiff agreed again that there was debate and discussion with Mr Fitzgerald concerning reduction of the number of hours for which people were to be paid on-call allowances. He was uncertain as to whether this issue arose after the finalisation of the accreditation process. He was also uncertain as to whether the issue of the countersigning four required items had been in part resolved and alterations made to the system before or after the issue of payment of allowances. The plaintiff could also recall having a discussion with Mr Craighead after visiting his doctor and being placed on Nexium for his stomach cramps. He also claimed that he had told both Mr Craighead and Mr Fitzgerald that he was suffering from stress problems associated with his work.
46 The plaintiff sent an email, which his daughter assisted him to prepare, following the cardiac episode. In the email he stated that he was unhappy with the way that he had been treated and with the proposed salary reclassification. He did not recall getting an email in reply. The plaintiff was shown the email which he had sent and in which he listed his achievements as well as expressing his unhappiness with the salary reclassification. Essentially the purpose of this part of the cross-examination was to attempt to establish that the plaintiff’s complaints related to money rather than workload or stress. The plaintiff also asserted that he was in fact offered a redundancy prior to the cardiac episode, but could not recall the date of this. Whilst the plaintiff agreed that he was most unhappy in relation to the issue of the on-call allowance, he denied that that was what his case was all about.
47 The plaintiff agreed that it was quite possible that he told Mr Reeves, when seeing him again in January 2008, that he had improved for some months following his last contact with that psychologist in June 2006. He also agreed that he attended a worksite meeting later in 2006 and may have told Mr Reeves that, at such meeting, he was told a lot of lies. He acknowledged that, at that time, he was angry that the defendant was not going to continue to pay him an on-call allowance whilst he was off work. However, the plaintiff asserted that the lies to which he was referring related to an alleged failure on his part to complain to the defendant concerning stress. He asserts that he did. However, he agreed that he had not asked for time off or filled in a notice of injury form. He did not produce a medical certificate saying that he needed to work reduced hours. The plaintiff again disagreed that the salary reclassification was the bug bear that existed between himself and the defendant. He also again denied that he had ever seen an email in response to the one that he, through his daughter, had sent to the defendant.
48 The plaintiff further agreed that he had told Mr Reeves that the hospital denied that it had made an offer of redundancy even though he had written advice to the contrary. He may have used words to Mr Reeves to the effect that, “My pride won’t let me just lie down and let them off the hook”. The plaintiff also could not recall telling Mr Reeves that his marriage was under stress and that he had been swearing in the presence of his wife. He denied prior anger problems, and said that he had only become angry after all that had happened to him. He also agreed that there could have been further meetings with the defendant about his getting a package.
49 The plaintiff was shown his claim for compensation, and felt that the date of injury, which had been left partially blank, should have been 23 March 2006. This was the time of the cardiac episode. He agreed that, some time after serving that form, he was contacted by the defendant in relation to its return to work policy. The plaintiff’s position was that, up until the time that his services were terminated, he was not ready to return to work and that he had given details of the return to work policy to his doctor. His doctor told him that he was not ready for the type of work referred to in the plan. He believed that he obtained a certificate of some kind from Dr Johnson in relation to his inability to return to work. The plaintiff could recall receiving a letter saying that if he was not able to perform the alternate duties suggested, his employment may be terminated. He believes that, following receipt of such letter, he rang Mr Clamp (Director of Corporate Services) to enquire as to what he intended to convey. A further meeting was arranged in January 2008, but was ultimately cancelled by the plaintiff on the advice of his solicitor. Subsequently the plaintiff received a letter of 12 February 2008 telling him that his employment was terminated and enclosing a cheque for the balance of his long service leave. The plaintiff agreed that he was still angry with the defendant.
50 The plaintiff was unaware of the operating expenses of the farm which he had sold. He believed that, in the year 2006, approximately 60 or 70 calves had been born. He and his wife had assisted with the calving. He sold the farm because he lost interest and could not cope with it. In the last years he did not do much work on the farm. The plaintiff denied that, because he was in a reasonably sound financial position, he had in effect retired from the workforce. He agreed that he had applied for a total and permanent disability benefit pursuant to his superannuation policy.
51 In relation to his cardiac condition, the plaintiff denied that he suffered from high blood pressure. At St Vincent’s Hospital he was given Anginine tablets, but had never had cause to take them.
52 The plaintiff admitted that he had been to the defendant’s annual Christmas party in December 2008 because he was invited. He agreed that he could drive a car but denied doing work in respect of the building of the house at Browns Road or the ordering of materials. The only work he had done was some cleaning and painting. In relation to the death of his son, he said that Dr Johnston had suggested that he should have some counselling or see a psychiatrist, but he had not done so because he did not wish to. He said he was currently taking Mobic on a daily basis, although he sometimes missed taking the medication.
53 The plaintiff agreed that he had not lost his skills as a fitter and turner and that, if he were well enough mentally, he could do such work. He said that, over the last three years and with the aid of Dr Johnston, he had been trying to get active and get back into the workforce, but had taken no steps in relation to seeking out employment.
(c) Re-examination of the plaintiff 54 In re-examination, the plaintiff said that he had not approached employers seeking work because of his doctor’s advice, which coincided with his own knowledge that he could not handle working with other people. He also said that the only follow up which he had undergone in relation to his cardiac condition was a stress test, and the result from that had been good. In relation to the sale of his farm, he could not cope with any of the duties involved in running it. He had been told to sell the farm since the time he “got crook”. Between 2006 and the sale of the property the type of things that he had done involved some feeding of the cattle from a tractor, assisting in calving, and he had helped do one long fence. Previously, he had effectively performed all of the work that was required to be done on the farm. After March 2006, he had no motivation. It should be said that, in relation to the farm activities, it was agreed by Mr Batten on behalf of the defendant that the operation of s.93DA and the concept of notional earnings were not matters upon which reliance was placed and need not concern me. Of course, the plaintiff’s farm activities could theoretically still be relevant to the issue of current work capacity, and no concession was made in this regard.
(d) The other witnesses called on behalf of the plaintiff 55 I have dealt with the evidence of the plaintiff in some detail, because it is obviously central to the case, and this is particularly so given the nature of the injury relied upon. I shall now turn to the other witnesses who were called on behalf of the plaintiff.
(i) Dr Bruce Johnston 56 Dr Johnston gave his evidence via the video link. He said that the plaintiff had been a patient of his since 1994, and remains a patient. He adopted his reports as being true and correct. He stated that the entry of September 2005 was not in his handwriting, but in that of one of his colleagues. However, the entry in the clinical notes of the clinic of 15 February 2006 was his. He had recorded such things as the plaintiff suffering from stress, sleeping poorly, having trembling hands, and experiencing anger and frustration concerning the volume and administration of his work with poor support and acknowledgment. These matters were discussed at length, and were described by the doctor as being mainly related to work pressure. The entry of 30 March 2006 referred to the “cardiac” episode, but also includes reference to a discussion concerning work stress in relation to the onset of pain. It was already thought that the plaintiff may need six weeks away from work or considerably longer. It was also felt that the plaintiff’s chest problems and pains were not of cardiac origin.
57 Originally standard medical certificates were supplied, but these were later changed to WorkCover certificates as at 15 May 2007. Dr Johnston has since continued to certify the plaintiff as being unfit for any duties. Dr Johnston had, in correspondence to the defendant, expressed the view that the plaintiff could not return as an assistant engineer or supervisor. Indeed, he agreed that, at least as at 8 June 2007 when Dr Entwisle, consultant psychiatrist, reported on the plaintiff’s condition at the request of the defendant, that the plaintiff was not ready to return to work. Dr Johnston said that he did not believe that at any stage since he had first seen the plaintiff in relation to this matter that the plaintiff had a work capacity. That was also the present situation, and would last for the foreseeable future. He also agreed that the plaintiff suffered from a major depressive illness together with grief concerning the death of his son. Dr Johnston was of the opinion that the plaintiff had an adjustment disorder that became evident in October 2006 and is still current. He agreed with Dr Entwisle that there were no factors unrelated to employment involved. He was certainly of the view that the plaintiff’s employment would be regarded as a significant contributing factor to his condition, and so remains. He did not believe that there was any suggestion of aggravation or the like of a pre- existing condition. In short, he agreed with many of the conclusions arrived at by Dr Entwisle.
58 In cross-examination, Dr Johnston stated that the only course that he had done which related to psychiatry was a “Level 1” course, and that he did not claim any particular expertise in psychiatry other than what he had learnt at university and in general practice. He agreed that the first WorkCover certificate which he supplied was in May 2007, backdated to April of that year. He was reasonably certain that Dr Howard Connor, a general physician, had been involved with the plaintiff’s admission in respect of the suspected cardiac episode. He agreed that the episode was a major cardiac scare. He also stated that the entry in the clinical notes of September 2005 also includes the words “cannot take time off”. He was of the view that the symptoms which the plaintiff described in September 2005 would have put the doctor then examining in mind of acid-related pain, linking this to the prescription of Nexium.
59 He did not feel that cardiac neurosis or worries concerning an underlying hear problem were significant contributors in respect of the plaintiff’s overall emotional state. He did not believe that worries concerning an underlying heart problem were a significant contributor to the plaintiff’s overall emotional state. The plaintiff may well have been incapacitated for work in February 2006 prior to the “cardiac” episode, but at that time had not chosen to take time off work.
60 Dr Johnston was aware of rumours concerning the hospital prior to the appointment of an administrator, and of the alleged need for alterations to its administration. He also recalled telling the plaintiff that he (Dr Johnston) did not like the paperwork and difficulties associated with making a WorkCover claim. He was aware of the plaintiff’s grievances in relation to pay reduction, and of the fact that the plaintiff did not want the job as chief engineer “under the circumstances he was offered it”. Dr Johnston had also made notes of the plaintiff complaining that his wife was nagging him in that he had no motivation for the farm activity. This was recorded on 27 August 2007. In relation to the kit home, Dr Johnston was of the view that the plaintiff would be able to order parts and could direct his brothers as to work to be done. However, whilst saying that the plaintiff would be capable of ordering concrete, bricks, mortar and screening, he also said that he was not sure if the plaintiff could get it right. He believed that the plaintiff would perform poorly in a structured work environment, particularly if he had to take orders.
61 He expressed the opinion that there had been some improvement in the plaintiff’s condition, and that ongoing litigation was an unhelpful process. He also accepted that the plaintiff has pride, and likes a fight. He had not referred the plaintiff to a psychiatrist, and has placed him on anti-depressant medication which has in fact increased from a dosage of 50mg to 200mg.
62 Dr Johnston could not see the plaintiff making efforts to rejoin the workforce in the foreseeable future, and stated that the plaintiff has a severe psychiatric problem. He would not agree that the cardiac scare was the traumatic event that might have triggered an adjustment disorder. He was of the view that the damage was done before that time, and that the ongoing focus of distress had been in relation to the hospital administration. At the time of the return to work plan in June 2007, Dr Johnston was certain that the plaintiff did not have a work capacity. This was particularly so in relation to a return to the hospital environment. He viewed the wage issue as being the final straw, but there had been other problems in relation to perceived lack of support and an apparent failure by the administration to understand the nature of the plaintiff’s work and the difficulty of that work. He agreed that his diagnosis had been based upon what the plaintiff had told him, and he had not spoken to Mrs Scicluna until some time later. He had not spoken to representatives of the defendant at all. He also stated that the plaintiff did not suffer from hypertension, but that his cholesterol level was higher than was desirable, with some medication being prescribed.
63 In re-examination, Dr Johnston agreed that the entry of 24 September 2005 read “work stress +++”, meaning to a large extent.
(ii) Monica Pauline Scicluna 64 This witness is the plaintiff’s wife. Essentially her evidence was to the fact that in late 2005 the plaintiff had become moody, had demonstrated a loss of appetite, a lack of motivation and had lost concentration. He could not be bothered with anything, this being in contrast to his previous presentation and nature, which had been one of enthusiasm and generally being “happy-go- lucky”. In late 2005 he also commenced bringing large books home from work, and writing notes associated with them. Following the resignation of Mr Kapenberger, the plaintiff was on-call most of the time. After the cardiac episode, the plaintiff was still the same in that he seemed to have lost all interest in things. The farm was sold because of the plaintiff’s lack of interest in it and his ceasing to perform necessary farming work. The farm had never been productive of a profit and was more of a hobby farm. No wages were paid from it. The purchase of the kit home was something that, it was hoped, would interest and activate the plaintiff, but ultimately others were engaged to do work such as putting up the frame. The plaintiff simply could not handle it. The plaintiff has done some odd things such as painting.
65 In cross-examination Mrs Scicluna agreed that Mr Martin was one of the former work colleagues who had done some work on the kit home, but Mr Harrington had not. Mrs Scicluna said that the farm was clear of any mortgage when it was sold. She said that the plaintiff had already been “knocked off his feet” prior to the death of their son, and that added to it. The proposed work of putting up the frames had stopped before their son’s unfortunate death. The work which the plaintiff had brought home related to the hospital accreditation process. She also said that their husband had loved his work. Mrs Scicluna stated that she was more concerned about stress in relation to her husband than any cardiac condition, because he was so “stressed out”. His lack of interest in the farm commenced prior to November 2005. It was some time after the new administration had been brought in and the previous Board dismissed. Mrs Scicluna repeated that she had never seen a person as stressed as the plaintiff was. When the plaintiff was conveyed to St Vincent’s Hospital with what was thought to be a cardiac condition, Mrs Scicluna was in fact temporarily in Melbourne as a volunteer worker at the Commonwealth Games, and visited him in hospital. She was aware of the fact that the symptoms from which he suffered were not related to his heart. She did not believe that he could cope with work and did not think that he had improved at any time.
(iii) David Glenn Martin 66 This witness worked at the defendant’s premises as a plumber under the supervision of the plaintiff. He stated that he noticed that job security was at risk after the appointment of the administrator. In addition, the ordering system slowed up. Countersigning was required for items above a lower level of value than had previously been the case. This interrupted work and was frustrating. Mr Martin expressed the view that Mr Fitzgerald was an accountant by trade coming into an engineering-based establishment, and his general knowledge of the way things worked was severely lacking. A lot of explanation of things to him was required, and this slowed things down. Mr Fitzgerald in fact left his position with the defendant approximately six to eight months prior to the hearing of this case. Mr Fitzgerald’s ability to deal with the tasks involved improved as he continued to work with the defendant. The witness also stated that Mr Kapenberger had relied heavily upon the expertise of the plaintiff, and the plaintiff had a great understanding of how things worked at the hospital, bearing in mind his many years there.
67 In cross-examination, Mr Martin agreed that a critical issue in relation to on- call payments arose in early 2006, but denied that the union was involved. He agreed that there were meetings concerning the issue. (Considerable evidence was given by this witness as to the actual mechanics of the on-call payment system. Essentially it was the number of hours for being on-call that was reduced, and not the rate of pay.) The changes caused those that were on-call to lose money. Mr Martin also stated that the ordering of goods requiring a signature happened on a daily basis, and sometimes twice a day. Mr Martin said that he had visited Mr Scicluna’s kit home, but, whilst there was work for plumbers there, he had done none. He had seen the plaintiff painting there, but not concreting. He also stated that the plaintiff, who owns a vintage Mustang car, had not worked on it for a considerable period. On one occasion Mr Martin had seen the plaintiff helping the plumbing contractors with the stormwater and septic tank lines that were being installed.
(iv) Dean Anthony Harrington 68 This witness is an electrician employed by the defendant and the plaintiff was his immediate supervisor until March 2006 (when the plaintiff ceased performing work duties). He expressed the opinion that the plaintiff’s workload increased considerably after the resignation of Mr Kapenberger. He noticed that, after Mr Kapenberger’s resignation, the plaintiff became increasingly stressed. After Mr Kapenberger’s departure, the plaintiff took over many of his duties, but Mr Fitzgerald also became involved with them. The plaintiff was the person who would be called out if the person on-call needed help. That was the “standby” position. Mr Harrington was present at the time that the plaintiff experienced the onset of what appeared to be cardiac problems.
69 In cross-examination, Mr Harrington admitted that he had heard rumours that Mr Kapenberger had been “rorting the hospital”. In relation to the dispute concerning allowances, Mr Harrington denied that he was a union member or that there had been some decision to “take on” the defendant. He was not aware of the existence of, or the details of, any campaign to challenge management in relation to allowances. He also stated that, after the departure of Mr Kapenberger, he took any problems which he had to the plaintiff. He was aware of the conflict concerning changes to on-call conditions. He enjoyed working with the plaintiff. He also said that he had been out to the plaintiff’s previous house and installed some lights, but had done no work at the new kit home.
(e) Witnesses called on behalf of the defendant (i) Michael Anthony Clamp 70 Mr Clamp is the Director of Corporate Services with the defendant and has been since 3 October 2005. He had previously been an auditor. He was aware of the dismissal of the Board in 2004 and the subsequent investigation into the finances of the hospital. He was aware that the conclusion reached was that the hospital was in a very unhealthy position financially. Mr Kapenberger had resigned shortly before Mr Clamp’s appointment, and Mr Clamp was unaware of the reasons for that resignation. When Mr Clamp was appointed, Mr Fitzgerald was Acting Group General Manager, Support Services, and obtained that position on a permanent basis in early 2006. Essentially it was the position that Mr Kapenberger had occupied, but with a few additional responsibilities. A memorandum was sent throughout the organisation that Mr Fitzgerald had effectively taken over Mr Kapenberger’s role.
71 Mr Clamp worked with the plaintiff on a day-to-day basis, and denied any complaints or reports to him by the plaintiff in relation to illness, injury, stress or the like. He was aware of discussions in respect of salary, but was not directly involved. The issue was not resolved prior to the plaintiff going on sick leave. A significant issue later arose in December 2006 in relation to payment to the plaintiff of his on-call allowance. Subsequently meetings were held. The union was not involved. The plaintiff was most unhappy about things. As at 1 January 2007 the plaintiff was paid sick leave without allowances, and subsequent meetings concerning return to work were held, and these involved Mr Clamp. However, Dr Johnston had told those involved that there was no possible work that the plaintiff could perform.
72 The plaintiff had stated that he wanted a redundancy for a period of two years and, when told this was not possible, said that he would “go the compo route”. He subsequently brought two claims, the present one and one for hearing loss. Attempts to have meetings with him in early 2008 were organised, but ultimately he stated that he had legal representation and would not be coming to any meetings. Accordingly his position was ultimately terminated.
73 In cross-examination Mr Clamp agreed that the first time he was involved in discussions concerning any salary entitlement that might be removed from the plaintiff was approximately 12 months after the plaintiff had ceased performing work duties. He was paid an allowance for the eight or nine months between March 2006 and the end of that year. Mr Clamp could not explain why, on payslips, the plaintiff’s on-call allowance was described as a higher duties allowance. Mr Clamp could understand the plaintiff’s distress at the removal of the allowance whilst he was on sick leave. He also agreed that Mr Kapenberger had continued in a consulting role in relation to certain work with the defendant for an unspecified period, this allegedly being after accusations of “rorting”. He could not comment upon Mr Kapenberger’s duties, or how busy he might have been. He agreed that the time of the accreditation process his a busy period, and that the plaintiff had not previously been required to be involved in such a process prior to the departure of Mr Kapenberger. He claimed that the plaintiff was supported by Mr Fitzgerald and a team of people to assist him. He denied that the plaintiff was put under a lot of stress. He suggested that Mr Fitzgerald had, in effect, taken over Mr Kapenberger’s role for the purpose of assisting the plaintiff in relation to the accreditation process. He was also of the view that, following Mr Kapenberger’s departure, Mr Fitzgerald would have completed his tasks. He disputed that there had been a change to the ordering system, but, after further explanation, agreed that there was a change to the instrument of delegation. He was also aware that this created conflict with the staff and the plaintiff.
74 Mr Clamp noticed a change in the plaintiff on one particular day when he had lunch with him and he appeared to be quiet – “He was quiet, he was just having a bad day it appeared”. Mr Clamp did not recall making a written statement to the effect that, after Christmas 2006, he noticed that the plaintiff was becoming a bit sullen and withdrawn. Ultimately he agreed that such a statement may well have been accurate at the time that it was made even if he could not now recall it.
75 In re-examination Mr Clamp stated that the accreditation process happened approximately every two years. A team prepared various documents and there would be input from other people.
(ii) Rowan Martin Fitzgerald 76 Mr Fitzgerald, who has been the Director of Corporate Services at Latrobe Regional Hospital for some six months, was previously General Manager, Corporate Services with the defendant, having occupied that position in an acting position from 26 December 2005 until being appointed absolutely on 26 March 2006. Mr Fitzgerald is a Bachelor of Commerce, having majored in accounting and information technology. He was appointed to his position with the defendant by Mr Craighead, the administrator. Given the financial difficulties that had been revealed, he was appointed for the purpose of trying to improve the financial and operating position of the defendant.
77 Whilst not fully aware of the circumstances surrounding the resignation of Mr Kapenberger, he was aware of suggestions of “rorting”. Mr Fitzgerald effectively took over Mr Kapenberger’s position and his role, along with some additional roles. His duties included the management of the supervision that was provided by the plaintiff. The workforce under his control numbered approximately 120.
78 The plaintiff was answerable to Mr Fitzgerald. His duties were operational, including looking after tradespeople, gardeners and the like. With the arrival of Mr Fitzgerald, there was more emphasis on cost control and scrutiny across the organisation. This included ordering on the part of the engineering department. The authority of managers and supervisors, including the plaintiff, was reduced. Mr Fitzgerald denied that this caused any issue in relation to the speed with which work was done.
79 In relation to the accreditation process, Mr Fitzgerald was in charge in relation to the engineering department and did the required writing. The plaintiff assisted him. He was not aware of the plaintiff taking work home. However, the assistance which he provided did include book work. The plaintiff made no complaint in this regard. Mr Fitzgerald said that the plaintiff made no complaint prior to the episode of chest pains on 23 March 2006, and there was no complaint concerning stress.
80 Mr Fitzgerald was aware of the issue concerning the on-call allowance, and stated that it was first raised by him. It would have been so raised within a few months of his commencement and prior to the completion of the accreditation process. Mr Fitzgerald said that it was discovered that the number of call-outs used for the basis of the formula was too great, but the actual rate of pay was lower than the award figure.
81 When Mr Fitzgerald raised the issue of the call-outs with the plaintiff, he was quite unhappy and upset about it, and this did not alter. The issue was raised several times, and there were a number of informal meetings. He denied that he had ever suggested that, if the plaintiff did not go along with the new arrangement, he might be made redundant.
82 In December 2006 there was some discussion between the plaintiff and those at the hospital concerning his future, termination, and a redundancy package. This followed a letter in reference to the discontinuance of on-call allowances as part of the plaintiff’s sick pay. There were again further discussions. It was hoped that the plaintiff would return to work, but that did not happen, and the plaintiff asked for a redundancy package, otherwise he would “go the compo route”. No redundancy was given, as it was not appropriate. The plaintiff’s role still existed.
83 After March 2006 the plaintiff returned to the hospital regularly for the purpose of doing such things as filling in his timesheet. He never suggested that he wanted to come back to work. Mr Fitzgerald was involved in the ultimate termination of the plaintiff’s employment. Between the completion of the accreditation process and the plaintiff’s cessation of work in March 2006 there were no changes to his duties.
84 In cross-examination, Mr Fitzgerald essentially agreed with the wording of the letter of termination sent to the plaintiff indicating that he was unable to fill the inherent requirements of his role and unable to perform an alternate or modified role, either presently or in the foreseeable future. He stated that he agreed with the content of the letter based upon the medical evidence of Dr Johnston and legal advice.
85 Mr Fitzgerald said that he was surprised that the plaintiff had attended a doctor in September 2005 stating that he was very stressed as a result of work. Mr Fitzgerald would not have seen him as stressed at all. The same could be said in relation to the plaintiff’s attendance on his doctor in February 2006. The only response or reaction noted by Mr Fitzgerald was upset or frustration on the part of the plaintiff in relation to the on-call allowance issue. He agreed that, whilst some other employees might not have been worse off because of the change to the on-call allowance, the plaintiff would have been. Mr Fitzgerald denied that he offered the plaintiff the job of chief engineer or that, when the plaintiff would not perform such a task, offered him redundancy. He could not recall a letter in which he made a proposal of some 40 weeks with payment by way of redundancy to the plaintiff. He believed that a payroll document providing for approximately 40 weeks redundancy payment may have been generated, but could not specifically recall providing this to the plaintiff. There would have been some discussion with the plaintiff concerning his position with the defendant and his intentions, and such discussion would have occurred before March 2006.
86 Mr Fitzgerald agreed that he did not have the hands on experience of either Mr Kapenberger or the plaintiff, and had in fact been an accountant for five years. He agreed that the plaintiff had assisted him in various tasks such as negotiating a contract in relation to water meters and valves and fire audits. However, he was not aware that the engineering staff were under pressure in relation to accreditation. He was not aware that the plaintiff was doing work after hours. Essentially he was not aware of any significant change to the plaintiff’s role after the departure of Mr Kapenberger. Much of the work in relation to preventative maintenance would have been entered onto the computer system from time to time, and available for use in the preparation for accreditation. He was also aware that the plaintiff was given high praise by the accreditor in relation to the work performed by him. (The new system of countersigning stock orders was discussed at some length.) Mr Fitzgerald would not agree that the new ordering system resulted in significant delays. If it was said that the system led to frustration and disputes in the workforce, he could not really disagree with that proposition.
87 That concludes the summation of oral evidence given. I turn now to the medical material placed before the court and which was in addition to the oral evidence of Dr Johnston.
The Medical Material Tendered
(a) On behalf of the plaintiff (i) Mr Reeves
88 Reporting to Dr Johnston on 24 May 2006, Mr Reeves, having recorded a history of both a workload increase and the decrease in salary entitlements which the plaintiff would receive, expressed the following view:
“The entire experience of organisational and staff changes, the significant upheaval in terms of relationships at work and the demise of Joe’s sense of being a valued employee, have all contributed to what best seems described as a significant grief reaction with significant depression…He feels used and screwed. His mood is characterised by anger outbursts and distress. He sleeps poorly and has no motivation … His wife is concerned that he will get worse if he returns to the workplace.
Assessment of his status suggests a diagnosis of severe Adjustment Disorder with mixed anxiety and depression in addition to a considerable grief component as noted above … It is my experience that the severing of or significant damage to the relationship bond between the workplace and the employee is difficult if not impossible to repair under these circumstances.”
(ii) Dr Johnston
89 In addition to his oral evidence, Dr Johnston has provided some reports which he adopted as being true and accurate. In his most recent report of 8 May 2009, he stated as follows:
“In summary, Mr Scicluna has suffered a severe adjustment disorder following a series of negative interactions with the administration of the hospital at which he was employed which has been long lasting and has had a very significant impact on his ability to function in both work and social environments. Mr Scicluna himself has indicated that he does not feel that he will be able to return to employment and I would agree that it seems very unlikely that he would ever again be able to tolerate a structured work environment despite improvements in mood and functioning up to December 2008. Where (sic) or not he would ever be able to develop a significant work capacity in the future remains to be seen.”
(iii) Dr John F Gill
90 This consultant psychiatrist has seen the plaintiff at the request of his solicitors on two occasions, the more recent being 8 May 2009. This was after the tragic death of the plaintiff’s son. Dr Gill made the following observations:
“On the basis of the available information and my assessment of Mr Scicluna, I consider that he suffers from Chronic Major Depressive Disorder which has been recently aggravated by a grief reaction following the death of his son…In my opinion, Mr Scicluna is unlikely to have any present capacity to return to regular employment … I consider that his depression is such that he would not be able to cope with returning to an employment environment where he had to interact with others. It is uncertain whether he will ever have future work capacity. Given the chronic depressive symptoms which he has experienced, which have only been partially responsive to treatment, it is probable that he will not become capable of a return to the workforce.”
91 It should be said that Dr Gill had previously reported on 9 October 2007 prior to the death of the plaintiff’s son. On that occasion he diagnosed an Adjustment Disorder with anxiety and depressed mood prior to the plaintiff ceasing work in March 2006. At that time he considered that the plaintiff was likely to have long-term impairment in his work capacity as a result of this depressive illness.
92 I have not included reference to reports by examiners does not seem to me that these injuries play any role in this claim. In any event, whilst such reports were included in the Plaintiff’s Court Book, ultimately they were not placed in evidence
(b) Medical material tendered on behalf of the defendant 93 Two medical reports of Dr Timothy Entwisle, consultant psychiatrist, were put before the court. In his more recent report of 24 February 2009, Dr Entwisle concluded that the plaintiff was “…a man who suffers from a Major Depressive Illness together with grief over the death of his son”. Dr Entwisle went on to report as follows:
“The contribution to his psychiatric condition is related to his employment. There are no other factors unrelated to employment that I divined from him.
His employment would be regarded as a significant contributing factor to his condition, and remains materially contributory to his current condition. There is no suggestion of any recurrence, aggravation, acceleration or exacerbation of any pre-existing psychiatric condition … I do not believe that he has a capacity for employment, based on my examination today … The prognosis is guarded.”
94 In his earlier report of 8 June 2007, which pre-dated the death of the plaintiff’s son, Dr Entwisle diagnosed an adjustment disorder with anxiety and depressed mood and did not believe that the plaintiff was ready to return to work.
The Submissions of Counsel
95 I shall deal with counsels’ submissions in the order in which they were given.
(a) The submissions on behalf of the defendant 96 Mr Batten’s submission on behalf of the defendant could be summarised as follows.
97 It should be said at the outset that Mr Batten, quite properly, did not pursue any suggestion that the plaintiff suffers from some form of cardiac neurosis, as there was inadequate evidence to support such a proposition. However, Mr Batten submitted that, whilst there was inadequate evidence of cardiac neurosis it was nevertheless the episode associated with chest pain that brought to an end the plaintiff’s employment with the defendant.
98 It was submitted that the plaintiff’s anger, unhappiness and frustration were within the range of ordinary human reaction and these things fall short of being an injury.
99 A major argument of the defendant is that s.82(2A) of the Act has application. (After initially arguing that s.82(2A)(a) of the Act had application, Mr Batten abandoned this argument.) This being a stress case, there is no doubt but that such section is relevant. Pursuant to s.82(2A)(b) the decision taken by the defendant, on reasonable grounds, was not to award a benefit in connection with employment to the plaintiff, and, if this is established, again compensation is not payable. Leaving to one side any issue concerning the cardiac condition, it was the introduction of the changes relating to salary and the removal of the on-call allowance which caused conflict, unhappiness and anger on the part of the plaintiff.
100 The email sent by the plaintiff to Mr Craighead was not one complaining of stress or increased responsibility. It was to do with reduction in salary. It contains no suggestion that there is any dissatisfaction on the part of the defendant with the work performed by the plaintiff, and indeed he had been commended by the accreditors. The re-classification of salary is the central issue which caused the plaintiff to stay off work. The situation falls squarely within s.82(2A)(b).
101 In the 24 years before the departure of Mr Kapenberger and the arrival of Mr Fitzgerald, there is no evidence from the plaintiff that he was overworked, overstressed or the like. There is no suggestion that the plaintiff did anything other than enjoy his job. It is not clear exactly why the plaintiff attended upon his doctor in September 2005 other than for stomach cramps, and the diagnosis is uncertain. The only medication prescribed was Nexium for the treatment of the cramps. Effectively, there is no contemporaneous attendance upon a doctor during the accreditation process where a complaint of stress is made. Stress only arises after the on-call issue was raised.
102 Further, in the present case, there was no report or notice of injury lodged as required by the Act. There was no complaint, and certificates were originally in the ordinary form for a medical condition. Sick pay was paid from March 2006 until April 2007, with the employer making the significant decision, effective as of 1 January 2007, to take away that component of the sick pay that related to the on-call allowance. Ultimately in May 2007, a claim for compensation based upon stress was lodged. Reference was made to s.103(7) of the Act. The plaintiff has been prejudiced in that it has missed the opportunity to have the plaintiff examined, say, in March 2006 in relation to the cardiac situation and the reasons for the plaintiff ceasing work.
103 Returning to s.82(2A), there have been a number of decisions of this Court in relation to the operation of that section, and effectively each depends upon its own facts. It is again emphasised that, in relation to s.82(2A)(b), what the defendant did in this case was to make a decision based on reasonable grounds not to award to the plaintiff a particular benefit. The stressor in the present case was the failure to provide a benefit in accordance with reclassification to a person who was off work because of a non-compensable condition. Section 82(2A)(c) is also to be considered, as, in addition, it was the expectation of the salary reclassification that caused the plaintiff anger, upset and possibly, stress. The concept that the plaintiff was overloaded with work should be rejected. Care should be taken with evidence such as that of Mr Martin because, apart from not being an expert, he is a friend of the plaintiff and is not independent. When the plaintiff saw Dr Johnston in February 2006 there was no suggestion that he was overworked. The defendant contends that the plaintiff in fact retired from the workforce.
104 In relation to the issue of incapacity, some of the medical opinions are dependent upon acceptance of the plaintiff’s history. The cardiac scare is underplayed. The various stressors described after the event to some of the doctors do not include the salary reclassification which in fact actually lies at the heart of the plaintiff’s complaints. Also the plaintiff attempted to force the defendant to provide a redundancy payment. Further, as stated by Dr Johnston, it is in the plaintiff’s interests, health wise, to bring the litigation process to an end.
105 If there are findings in favour of the plaintiff, little can be said in relation to the first entitlement period. In relation to the second entitlement period, s.93CB(3)(b) requires consideration. If it is found that the plaintiff has a residual capacity, albeit away from the defendant’s place of employment, the plaintiff then has obligations in relation to rehabilitation and a return to work. In the present case, the plaintiff, while saying that he has not retired, has done nothing in relation to his obligations.
106 In relation to s.93DA and notional earnings, that section does not apply in circumstances where the employer has failed to provide the worker with suitable employment. In the present case, the second entitlement period of 130 weeks expired in September 2008, and no return to work plan or suitable employment has then been provided. Notional earnings might be relevant in relation to a finding that the plaintiff had a current work capacity at some time during the second entitlement period. Essentially the farm activities need not be addressed. The evidence is not sufficiently strong to enable a submission to be put that the plaintiff had a current work capacity in accordance with the definition found in s.5 of the Act.
107 It is arguable that the subsequent decision of the defendant in relation to the removal of the on-call allowance from the sick pay does not arise out of or in the course of the plaintiff’s employment. It may arise out of the plaintiff’s incapacity for work but that initially arose because of the cardiac condition or scare. However, s.93DA need not be a matter of concern on the facts in this case.
108 In relation to s.93CC – entitlement after the expiry of the second entitlement period – the plaintiff bears the burden of establishing that, even with retraining or rehabilitation, he has no current work capacity and this will remain the situation for the foreseeable future. There is not a great deal of evidence concerning this. The plaintiff gave no evidence at all of being involved in rehabilitation or retraining. After the cardiac scare, he has made no effort to return to, or look for, work other than what he did on the farm. The evidence is not sufficient for the plaintiff to obtain payments pursuant to s.93CC. Further, there is the somewhat tragic problem of having to disentangle grief associated with the death of the plaintiff’s son from the symptoms of any compensable injury.
109 The history given to Dr Gill concerning bullying and intimidation should be rejected, as there is no evidence to support it. Further, Dr Gill’s report does not go far enough in relation to the plaintiff’s absence of current work capacity extending indefinitely. The plaintiff’s activities in relation to the building of the kit home should also be borne in mind. This is particularly so when it remembered that his previous job was 90 per cent supervisory.
110 Finally, it is again repeated that it is financial matters, as set out in the plaintiff’s email, that lie at the centre of his dispute with the defendant and brought about his decision to retire from the workforce.
(b) The submissions on behalf of the plaintiff 111 The submissions of Mr O’Connor on behalf of the plaintiff could be summarised as follows.
112 In relation to any alteration to the plaintiff’s salary, there were two issues. One involved the offer of the position of Chief Engineer, which involved a salary reduction, and which the plaintiff was not prepared to accept. The other related to the reduction of the call out rate. There was no evidence concerning any interference with the amount paid for secondment, or secondary emergency call out.
113 Further, the plaintiff gave evidence that things changed after the appointment of the administrator and people that he knew started leaving. After that came the department of Mr Kapenberger with Mr Fitzgerald moving into his office. The plaintiff’s evidence then concentrated on the accreditation process and the work involved in that. This created a lot of difficulties for him and he had to take work home. He referred to his workload increasing “heaps”. His evidence about being stressed at the time was verified by Mr Martin and by Mrs Scicluna. It is also clear that the plaintiff then commenced to suffer stomach cramps and attended his general practitioner accordingly. Given that the plaintiff had worked for the defendant for some 25 years and had not previously presented to his general practitioner with symptoms related to work, it is clear that it was stress associated with work at that time that was involved. He reported further symptoms which would appear to be stress- related on 15 February 2006. In short, the fact that the plaintiff was suffering from clear, work-related stress has not been contradicted. Even Mr Clamp noticed a change in the plaintiff’s demeanour. The fact that Mr Fitzgerald did not notice anything takes the matter no further. That work-related stress existed is also clear from the report of Mr Reeves. In short, all documented material points to a clear understanding that this was work-related stress. The fact that a WorkCover claim was not made immediately is explicable - for example, Mr Reeves reported that the plaintiff was reluctant to pursue a WorkCover claim and thought that not so doing was probably going to be better for the plaintiff psychologically. All the medical evidence points unanimously to the fact that the plaintiff suffered a work-related stress injury.
114 It cannot be said that Dr Entwisle failed to obtain the correct history, as he had statements from all relevant witnesses and was aware of the tragic death of the plaintiff’s son. His conclusions were clear that the plaintiff was suffering from a major depressive illness related to his employment and not to any other factors.
115 Dr Entwisle also came to the conclusion that the plaintiff did not have a capacity for employment. The report of Dr Gill also represents clear unchallenged evidence that the plaintiff is unlikely to have any capacity to return to regular employment and that it is probable that he will not become capable of a return to the workforce. Dr Johnston is of the same view. In short, the plaintiff is entitled to payments for the period of 130 weeks which extends to the end of the second entitlement period, and is then entitled to ongoing payments pursuant to s.93CC.
116 It is worth noting that, whilst the plaintiff did not receive the email sent by Mr Craighead, it is a non-responsive communication in any event. In fact in the email sent by the plaintiff, and upon which considerable emphasis has been placed in the address on behalf of the defendant, he stated that, after Mr Kapenberger’s departure, he was left to cover the work involved in Mr Kapenberger’s previous position in addition to his own work without any financial reimbursement. That he was performing extra work is apparent.
117 What was being offered to the plaintiff by way of any work proposal is unclear, and the evidence given has not clarified the situation. Neither salary nor job alterations were ever spelt out. The defendant has admitted that no offer of suitable employment within the meaning of the Act was made. Within the meaning of s.82(2A)(b) and (c) of the Act, nothing in relation to reclassification or the non-awarding of a benefit was in fact done or foreshadowed prior to the plaintiff ceasing work. Nothing of this nature happened until the decision to interfere with the plaintiff’s sick pay and there is accordingly no evidence of any expectation in that regard. The plaintiff’s evidence is that he was offered the position of Chief Engineer at a reduced salary, but he was not required to take it. The defendant has a burden to discharge in this regard, and then the plaintiff bears the onus satisfying the Court that on the balance of probabilities the stress did not arise wholly or predominantly from such action. In any event, the wording of s.82(2A)(b) and (c) is directed to the situation where a worker seeks a particular benefit, or time off, or a transfer and this is refused, as opposed to a situation involving the removal of some existing benefit. In a situation where there is a complete absence of evidence as to what was being proposed, the burden has not been discharged in any event.
118 By the time the suggestion of the removal of the on-call allowance from sick leave occurred, the plaintiff had been absence from employment and on that leave for approximately nine months. He had well and truly sustained his stress injury by that stage. His condition was not varying greatly. That event, namely the removal of the on-call allowance from the sick pay, could not trigger the operation of s.82(2A). There were a number of work stressors that applied so that, in any event, for the purposes of s.82(2A) it could not be said that the plaintiff’s stress arose wholly or predominantly from the non-awarding of promotion, reclassification, benefits and the like, or an expectation in relation to these.
The Reply On Behalf of the Defendant
119 Mr Batten’s brief reply on behalf of the defendant could be summarised as follows.
120 Sufficient evidence in relation to expectation for the purposes of s.82(2A)(c) was in fact put before the Court. For example, reference is made to questions put to the plaintiff concerning Mr Fitzgerald’s belief that the hospital could not justify having two people on-call per night and there was debate and discussion concerning reduced number of hours. Secondly, medical opinions in a case such as this depend upon the accuracy of the history given to the examiner. Thirdly, in relation to the alleged excessive workload which the plaintiff bore following the departure of Mr Kapenberger, no evidence was led from him, particularly in relation to the allegations contained in his email that the tasks set out therein were tasks that he would not otherwise have performed. The defendant disputes that there was an excessive workload and that the accreditation process gave rise to problems that resulted in the plaintiff’s subsequent presentation to doctors.
Ruling 121
There are a number of questions to be answered and issues discussed in this judgment. I shall deal with them in turn.
(i)
Did the plaintiff suffer any and if so what injury arising out of or in the course of his employment in 2005 and 2006? If so, do symptoms associated with such injury still exist?
122
I am of the view that the plaintiff did suffer an injury within the meaning of the Act, and that symptoms of that injury became manifest in 2005 and 2006. In September 2005 the plaintiff attended upon Dr Hines, apparently a predecessor or colleague of Dr Johnston at the same clinic, and that doctor recorded a history of “work stress+++” along with a reference to “cannot take time off”. This was explored with Dr Johnston in cross-examination. The plaintiff’s condition of stress may have had its origins earlier, but certainly by September 2005, and when the plaintiff was suffering from stomach cramps, it had reached the stage where he decided to go to a doctor. It was also in September 2005 that Mr Fitzgerald arrived in his role of Assistant Administrator and, as stated by the plaintiff, this created a lot of work for him. Further, the accreditation process was taking place and I accept that this created extra work for the plaintiff. Having examined the evidence, and viewed both the plaintiff and Mr Fitzgerald in the witness box, I would not find it difficult to accept that the plaintiff, who had been at the hospital for so many years, may well have experienced some stress in the changed circumstances.
123
I should say at this stage that I found the plaintiff to be a witness of truth. I do not regard his credit as having been damaged. I accept that he did his best to answer questions in an honest fashion and to give to the Court an accurate description of events and symptoms.
124
Mrs Scicluna, whom I also found to be a witness of truth, noticed in late 2005 that the plaintiff became moody, lost his appetite, could not concentrate on things and “couldn’t be bothered with anything”. He seemed to get worse and worse. I accept that previously the plaintiff had been enthusiastic and happy- go-lucky by nature, and had enjoyed his many years of work with the defendant. Mr Harrington noticed an increase in the plaintiff’s workload after the departure of Mr Kapenberger and stated that the plaintiff became more and more stressed with it. He became angry and upset.
125
The plaintiff saw Dr Johnston for the first time on 15 February 2006. The history obtained was that the plaintiff had been for some time stressed, sleeping poorly, noted facial flushing and had shaking hands, abdominal churning and abdominal pain. He related his symptoms to anger and frustration with the hospital administration and referred to a high volume of work, poor support and inadequate acknowledgement of the difficulty of the tasks facing him and the contribution he was making.
126
Dr Johnston, an impressive witness, discussed with the plaintiff a number of options. The plaintiff elected to try some stress management and relaxation strategies “and to continue to try to manage his work situation because he felt he owed it to his staff”.
127
On approximately 23 March 2006 the plaintiff suffered what was thought to be the cardiac episode which has been described. No organic basis for the symptoms involved was established. As stated by Dr Johnston, angiography showed a non-significant stenosis in the left main coronary artery. There is no suggestion that the plaintiff suffered what could be described as a genuine cardiac episode. Whilst it is not specifically addressed in the reports of the examining psychiatrists, at least to the lay person it would not be surprising if the chest and arm pains experienced by the plaintiff were stress-related. However, there is no clear expert evidence as to this and a specific finding is not required.
128
The plaintiff saw Dr Johnston again on 30 March 2006 when he was experiencing worsening chest pain. The plaintiff felt that he was no longer able to manage the pressures facing him and would need to take time off work. When seen six weeks later the plaintiff described worsening of his condition with depression characterised by low mood, insomnia, low energy, poor motivation, considerable irritability and a good deal of anger regarding his work situation. Dr Johnston diagnosed severe depression, and treatment with Zoloft was commenced. After an increase in the Zoloft dosage, there was some improvement. This seems to have been short-lived, and on 16 August 2006 Dr Johnston doubled the Zoloft dosage. Subsequently the plaintiff ceased taking Zoloft because he felt that he was developing headaches associated with that medication.
129
On 1 November 2006 Dr Johnston again saw the plaintiff, whose condition had deteriorated. He had malaise fatigue, increased anxiety, lowered mood, insomnia and irritability. The plaintiff was commenced on Cipramil, but this had unfortunate side effects.
130
In the meantime, the plaintiff had attended on Mr Reeves, a psychologist, on 24 May 2006. Mr Reeves took a history of the changes at the defendant’s workplace and of the plaintiff’s workload increasing dramatically, this resulting in increased stress. Mr Reeves described the stress symptoms as stomach discomfort and later pains in the arms which were investigated by angiogram. Whilst the plaintiff described the offer of the Chief Engineer’s position at a lower wage, he also stated to Mr Reeves that “it’s not all about the money” and stated that he did not know if he could do the job any more. In his report of 24 May 2006 to Dr Johnston, Mr Reeves stated the following:
“The entire experience of organisational staff changes, the significant upheaval in terms of relationships at work and the demise of Joe’s sense of being a valued employee, have all contributed to what best seems described as a significant grief reaction with significant depression … Assessment of his status suggests a diagnosis of severe Adjustment Disorder with mixed anxiety and depression in addition to a considerable grief component … He is reluctant to pursue a WorkCover claim and again under the circumstances this is probably going to be better for his psychological health than otherwise.”
131 I have gone through the events of late 2005 and during 2006 in considerable detail so as to provide some analysis of the plaintiff’s situation prior to the diminution of his sick pay by reason of the removal of the on-call allowance, the information concerning this being contained in the letter of 21 December 2006. When one considers this material, it is quite apparent that the plaintiff was suffering significant stress-related symptoms well prior to the receipt of that letter. His Zoloft dosage had been increased, and then the increased dose doubled. He had been suffering from a variety of symptoms. He had already been diagnosed as suffering from severe depression.
132 In addition, it also seems to me to be quite apparent that the plaintiff’s condition was related to work and arose out of or in the course of his employment. That also seems to have been evident at the time. I accept the plaintiff’s evidence, that of his wife, and the diagnoses of Dr Johnston and Mr Reeves. The precise diagnosis of Dr Johnston and of the experts who examined the plaintiff for medico-legal purposes shall be discussed further after a brief summation of the course of medical treatment after 2006.
133 On 18 December 2006 medication by way of Aropax was commenced. Over the next 12 weeks there was some improvement in the plaintiff’s condition, although he became angry, frustrated and disheartened when he felt that the defendant had failed to honour an agreement reached in relation to his pay and conditions, believing that they were placing no value of his contribution to the hospital over 25 years. When seen on 4 June 2007 his condition had deteriorated and thereafter he was angry in relation to his dealings with the hospital (including a possible return to work), was sleeping poorly, and ruminating regarding ongoing issues relating to the hospital employment. When seen on 27 August 2007, his depression had worsened further, he had lost motivation and energy, had thoughts of self-harm and was sleeping poorly.
134 The plaintiff was also worrying about his legal action. Dr Johnston increased the dosage of Aropax and advised the plaintiff to leave legal dealings to his solicitors. This resulted in some improvement, although the plaintiff still had poor concentration, headaches, labile mood and irritability. In his report of 9 October 2007 Dr Johnston expressed the view that the plaintiff was suffering from a severe Adjustment Disorder with anxiety and significant depressive illness related to work pressure, and in particular triggered by increased work volume following the departure of the Chief Engineer. This was coupled with contract negotiations, and the offer of a significant cut in salary for a position requiring more responsibility, greater work and the like. Dr Johnston was of the view that the plaintiff remained very reactive and emotionally fragile and was uncertain whether he would ever be fit to seek employment in the future.
135 In his later report of 8 May 2009 Dr Johnston stated that there had been a further change of the prescribed medication from Aropax to Luvox in October 2007 with some improvement. However, thereafter the plaintiff was still showing reactivity to involvement with the hospital administration, together with low mood, irritability and poor motivation. His mood was stabilised somewhat with the sale of the farm and the decision to build a new home and Dr Johnston felt that the plaintiff might be able to undertake small projects such as fencing of his house block. The tragic death of the plaintiff’s son has been an intervening factor since, and, understandably, Dr Johnston was of the view that this devastating loss had eclipsed the plaintiff’s concerns in relation to his work injury.
136 However, he concluded that the plaintiff had suffered a severe Adjustment Disorder following a series of negative interactions with the administration of the defendant and that this had been long lasting, having a very significant impact on his ability to function in both work and social environments. Dr Johnston agreed that it seemed very unlikely that the plaintiff would ever again be able to tolerate a structured work environment despite some improvements prior to the death of the plaintiff’s son.
137 In his oral evidence Dr Johnston confirmed that he has continued to certify the plaintiff as being unfit for any duties and also expressed the view that at no stage since he has first seen the plaintiff in relation to this matter has the plaintiff had a work capacity. He was of the view that the plaintiff’s employment was a significant contributing factor to his condition and remained so. He also stated that the plaintiff’s dosage of anti-depressant medication had increased very considerably. He regarded the plaintiff as having a severe psychiatric problem and could not see him making efforts to rejoin the workforce in the foreseeable future. He felt that the damage had been done prior to the “cardiac” scare. As stated, I have found Dr Johnston to be an impressive witness who is well-familiar with the plaintiff and with his health. I accept Dr Johnston’s evidence.
138 Dr John Gill, consultant psychiatrist, has examined the plaintiff on two occasions for medico-legal purposes at the request of the plaintiff’s solicitors. In his report of 9 October 2007 he expressed the opinion that the plaintiff was likely to have suffered and Adjustment Disorder with anxiety and depressed mood prior to ceasing work in March 2006. His condition subsequently worsened, although the symptoms then diminished, but, as at the time of the report, the plaintiff remained with significant residual depressive symptomatology. On the basis of the history given, Dr Gill believed that the plaintiff’s psychiatric condition was a direct result of the stresses which he experienced in his work place prior to ceasing work in March 2006.
139 Dr Gill re-examined the plaintiff and reported in relation to this on 8 May 2009. Various reports had been forwarded to Dr Gill, and he was aware of the death of the plaintiff’s son. He expressed the view that the plaintiff suffered from a Chronic Major Depressive Disorder which had been recently aggravated by a grief reaction following the death of his son. He did not believe that the plaintiff had any present capacity to return to regular employment and that his depression was such that he would not be able to cope with returning to an employment environment where he had to interact with others. Dr Gill concluded that it was probable that the plaintiff would not become capable of a return to the workforce.
140 The plaintiff was also seen twice by Dr Timothy Entwisle, consultant psychiatrist, who examined him for medico-legal purposes at the request of the defendant. Dr Entwisle reported on 8 June 2007, when he expressed the opinion that the plaintiff had an Adjustment Disorder with anxiety and depressed mood and that the plaintiff perceived his work situation, with increasing responsibilities during a period as Acting Chief Engineer, as the cause of the symptoms with which he presented. Dr Entwisle did not believe at that time that the plaintiff was ready to return to work. Dr Entwisle saw the plaintiff again on 20 February 2009, reporting on 24 February. On this occasion Dr Entwisle diagnosed a Major Depressive Illness in addition to the grief associated with the death of the plaintiff’s son. He expressed the opinion that the contribution to the psychiatric condition is related to the plaintiff’s employment, there being no factors unrelated to employment. He regarded the employment as a significant contributing factor to the condition, and it remained materially contributory. Dr Entwisle did not believe that the plaintiff had a capacity for employment and thought that the prognosis was guarded.
141 In light of all of the above, and after considering the expert medico-legal opinions, my view expressed earlier that the plaintiff suffers from an injury which has arisen out of or in the course of his employment is reinforced. Various terms have been used to describe the plaintiff’s injury, but it seems to me that he has, as described by Dr Gill, a Chronic Major Depressive Disorder or, as described by Dr Entwisle, a major depressive illness. The views of Dr Johnston, and, for that matter, Mr Reeves, are consistent with this. The overwhelming weight of the evidence and of expert opinion is that this condition still is, and previously has been, directly related to his employment. In particular, given that I accept the plaintiff and those called by him as witnesses of truth, I am of the view that the changed circumstances at the workplace, involving as they did an increased workload and increased stresses, are factors related to employment which directly contributed to the onset of the injury.
(ii)
Is the plaintiff precluded from obtaining compensation by reason of the operation of s.82(2A) of the Act?
142 It is to be remembered that the defendant has specifically abandoned any reliance upon s.82(2A)(a). I am not of the view that the operation of s.82(2A)(b) and (c) disqualifies the plaintiff from obtaining compensation. I have set out the history of events and medical opinions at some length above. When they are borne in mind, and even leaving to one side arguments concerning the meaning of these sub-sections, in my view the plaintiff’s injury was caused by stress which did not arise wholly or predominantly from the matters referred to in sub-paragraphs (b) and (c). I am of that view regardless of where the burden of proof might lie. The plaintiff’s stress-related injury arose, as I have said, from his increased workload and responsibilities and the changed circumstances and personnel (particularly Mr Fitzgerald) at the workplace.
143 In addition, I think that there is force in the submission of Mr O’Connor that the evidence does not establish that the specific requirements of s.82(2A)(b) and (c) have been made out. It is far from clear that the defendant had taken a decision, whether or not on reasonable grounds, not to award or to provide promotion, reclassification or transfer, or leave of absence or benefit in connection with the employment, to the plaintiff. What was occurring does not seem to me to fall within that description. Further, the plaintiff was seeking none of those things. There was reassessment of the manner in which a benefit was calculated and paid. The plaintiff was sounded out about taking a different position at a lower rate of pay. Nothing more concrete than that seems to have occurred at the relevant time, and the reduction in the amount of the plaintiff’s sick pay occurred long after the onset of the illness and his cessation of work.
144 It simply does not seem to me that the evidence permits the operation of s.82(2A) so as the preclude the plaintiff from obtaining compensation. I might add that I have also considered the observations of Smith J concerning the operation of s.82(2A) in State of Victoria v Leck [2009] VSC 92. I appreciate as his Honour was there essentially dealing with a different point, namely whether the word “or” in s.82(2A)(a) had a conjunctive or disjunctive meaning. However, some observations of his Honour in relation to the intention of the provision may be pertinent. His Honour rejected an argument that it was the intention of the provision to benefit the employer and not the worker, stating that it would be more accurate to say that the purpose was to place limits on the benefits otherwise payable under the Act but such limits would be intended to meet the express object of the Act of providing “adequate and just compensation to injured workers”. His Honour went on to say that the provision is designed to limit compensation in the case of a person who is otherwise entitled to it. Whilst not determining the point, his Honour went on to emphasise, and consider the meaning of, the word “arise” in the section. He contemplated an argument (to which he seems to have been attracted although there was no necessity to rule on it) that the question to be considered is what predominantly caused the stress to “arise”, in the sense of “spring or originate from”. Applying that construction, the issue to be determined would be from what actions did the relevant stress arise; whether such actions or any of them could be classified as one of the types listed; and, if so, whether the relevant stress arose wholly or predominantly from one of those actions. He went on to say:
“Applying that construction in the present case the question arguably would be whether the onset of the illness occurred as a result of a state of stress that arguably arose prior to the actions of ‘discipline’ and ‘transfer’. If that was so, the stress arguably ‘did not arise…from’ those actions.”
145 If that approach were adopted in the present case, the outcome would still be the same. The plaintiff’s stress-related injury sprung or originated from circumstances in the workplace prior to such things as the removal of his on- call allowance.
(iii)
Does s.103(7) of the Act operate to the detriment of the plaintiff’s claim?
146 It was argued by the defendant, although not at great length, that s.103(7) of the Act applies in that there was no claim lodged until some 14 months after the plaintiff ceased performing actual work duties, and no notice of injury or other means of alerting the defendant as to a possible claim prior to that time. It was said that this prejudiced the defendant because of an inability on its part to examine the plaintiff at the relevant time. In particular, it was said that the opportunity to have the plaintiff then examined by a cardiologist was lost.
147 I am not of the view that there is any merit in this defence. The defendant could have had the plaintiff examined by a cardiologist at any time, and the result would presumably have been exactly what was found by those at St Vincent’s Hospital and associated with Dr Johnston’s clinic – namely, that there was no cardiac illness or injury. The claim is not brought on the basis of a cardiac injury. No expert examiner has suggested that the plaintiff suffers from some form of cardiac neurosis. It would seem that the plaintiff, in the best interests of his health, was originally dissuaded from pursuing any compensation claim. Further, the course of the plaintiff’s illness was such that, at least originally, a diagnosis was not simple. It is far from clear to me that it was practicable for the plaintiff to make his claim any earlier than he did. In addition, he was still an employee and on sick leave throughout 2006. As stated, I cannot see how the defendant has suffered any prejudice as a result of any delay in the making of the claim.
(iv) Is the plaintiff entitled to compensation during the first and second entitlement periods? 148 Mr Batten effectively conceded that, if I made findings of the type set out above, the plaintiff was entitled to compensation during the first entitlement period. I agree with this.
149 The plaintiff is entitled to weekly payments of compensation during the second entitlement period if the requirements of s.93CB of the Act are met. In my opinion they have been satisfied. The second entitlement period, which continues until the expiration of 130 weeks, expired on 27 September 2008 according to the calculations of Mr Batten, and this would appear to be correct.
150 I am satisfied that, during the second entitlement period, the plaintiff had no current work capacity. I am not of the view that, during the period in question, the plaintiff was able to return to work in suitable employment. Reporting in the midst of the second entitlement period in October 2007, Dr Johnston expressed the view that the plaintiff was very reactive and emotionally fragile and was uncertain whether he would ever be fit to seek employment in the future, thereby clearly inferring that the plaintiff was not so fit at that time. The type of symptoms being exhibited by the plaintiff at that time and recorded by Dr Johnston have already been discussed.
151 Additionally, Dr Johnston gave the following oral evidence:
“Have you been consulted about any suitable duties, or suitable position with suitable duties that Mr Scicluna could undertake at the hospital?---I can't bring a document to mind at the moment, but if you give me a chance I’ll see if there was one. The thing is I wouldn’t have paid too much attention to the request for an assessment for return to work because I don’t believe that at any stage since I initially saw him he’s had a work capacity.
Does that continue to be the case at the moment?---That – yes, that’s still the case.
Looking to the future, is that likely to continue to be the case, that is he has no work capacity into the future?---The foreseeable future as far as I can tell.”
152 Examining and reporting at the request of the defendant in June 2007, Dr Entwisle stated that he did not believe that the plaintiff was ready to return to work. Of course, when examining again in February 2009 Dr Entwisle stated simply that “I do not believe that he has a capacity for employment”.
153 Reporting on 8 May 2009, Dr Gill stated as follows:
“In my opinion, Mr Scicluna is unlikely to have any present capacity to return to regular employment … it is uncertain whether he will ever have future work capacity. Given the chronic depressive symptoms which he has experienced, which have only been partially responsive to treatment, it is probable that he will not become capable of a return to the workforce.”
154 These opinions, when combined with the plaintiff’s own evidence, seem to me to lead inevitably to the conclusion that, during the second entitlement period, the plaintiff had no current work capacity, and this is perhaps underlined when the definition of suitable employment is borne in mind. Further, I would refer to the decision of Smith J in Sodexho Australia Pty Ltd v Rowe & Ors [2009] VSC 298 in which his Honour endorsed the taking of what could be described as a realistic approach to what is in fact suitable employment for the worker in question.
155 I am not of the view that s.93CB(3) has application so as to deprive the plaintiff of his entitlement. As stated, Dr Johnston gave evidence to the effect that he had not paid too much attention in relation to assessments of the plaintiff for return to work because he did not believe that at any stage the plaintiff has had any capacity so to do. The opinions of the expert examiners in relation to the plaintiff’s capacity have already been set out. In my opinion the plaintiff has not retained any capacity for employment, and this would seem to the be the expert opinion. Efforts to participate in an occupational rehabilitation service, a return to work plan or a return to work in suitable employment are required only to be reasonable. In a situation where it is essentially the opinion of those examining on both sides that no capacity for employment remains, it would scarcely be unreasonable not to have taken those steps. That leaves to one side arguments as to whether rehabilitation or a return to work plan was in fact offered in this case, and as to whether that is required. However, the basic position in relation to rehabilitation, return to work plans and attempts to return to work is that the plaintiff has no residual capacity for employment and s.93CB(3) does not operate so as to remove or terminate any right to weekly payments during the second entitlement period.
(v)
Does the plaintiff’s entitlement to weekly payments for compensation extend beyond the expiration of the second entitlement period?
156 Section 93CC is the relevant provision in this regard. As is doubtless apparent from the above, I am of the view that the plaintiff has established such entitlement. He has no current work capacity. He is a man approaching 57 years of age. He has had limited education, but has always worked as a fitter and turner and toolmaker, including throughout his many years with the defendant. I am again bearing in mind the definitions of current work capacity and suitable employment and the observations contained in Sodexho along with those found in some of the cases referred to therein. The plaintiff has stated that he has no capacity. Dr Johnston has expressed the view that it is still the case that the plaintiff has no work capacity and that this will continue for the foreseeable future. This seems to me to be saying effectively that the absence of a current work capacity is likely to continue indefinitely. Dr Gill’s most recent report includes a reference to the fact that it is probable that the plaintiff will not become capable of a return to the workforce and that he is likely to have long-term depressive symptomatology to at least a moderate degree. Dr Entwisle, in his most recent report, stated that the plaintiff’s condition is related to his employment, that he did not have a capacity for employment when seen on 20 February 2009 and that the plaintiff’s prognosis is guarded.
157 When all of these factors and opinions are taken into consideration, it seems to me that the plaintiff’s situation of having no current work capacity is likely to continue indefinitely. For the reasons previously expressed in relation to s.93CB, s.93CC(3) does not operate so as to deprive the plaintiff of that entitlement.
Conclusion
158 In summary, I find as follows:
(i) the plaintiff suffered injury within the meaning of the Act arising out of or in the course of his employment. (ii) s.82(2A) does not operate so as to render the injury non-compensable; (iii) s.103(7) does not operate to the detriment of the plaintiff; (iv) the plaintiff is entitled to weekly payments of compensation for the first entitlement period; (v) that the plaintiff is entitled to weekly payments of compensation for the second entitlement period; (vi) the plaintiff is entitled to weekly payments of compensation after the expiry of the second entitlement period. 159 The plaintiff is successful. He has discharged the burden of proof in all regards. I shall hear the parties as to any ancillary orders that are required.
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