Stapleton v Victorian WorkCover Authority
[2017] VCC 1150
•21 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04944
| DEBRA-ANN ALICE STAPLETON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 August 2017 | |
DATE OF JUDGMENT: | 21 August 2017 | |
CASE MAY BE CITED AS: | Stapleton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1150 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychological injury – causative relationship between psychological injury and workplace incident – whether injury “severe” – whether consequences “severe” – whether 40 per cent loss of capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted to the plaintiff in relation to pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr D O’Brien | Arnold Thomas Becker |
| For the Defendant | Mr A Moulds QC with Mr A Newman | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Stapleton, worked as a nurse at the Frankston Hospital. She had suffered some bullying at the hands of a co-employee, and sought medical treatment and counselling. This happened in 2009.
2 On 11 December of that year, Ms Stapleton hurt her elbow in the course of her employment when reaching for an item from a container. She bandaged the elbow to give it support.
3 On 13 December, when working on a ward at the Frankston Hospital, she encountered a patient who was difficult and aggressive. She alleges she was punched by the patient a number of times on the elbow over the course of her shift. She said she was traumatised by this patient and has suffered a psychological injury, in the nature of a Post-Traumatic Stress Disorder (“PTSD”); alternatively, a Major Depressive Disorder.
4 Ms Stapleton said her range of social, domestic and recreational activities have been lost, and she has been unable to resume her employment.
5 This is an application for leave to bring proceedings pursuant to s13AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for psychological injury suffered by the plaintiff on or about 13 December 2009. The application is brought under ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
6 Ms Stapleton was the only witness called to give evidence and be cross-examined. In addition, her affidavits, an affidavit of her husband, various medical reports, clinical notes and other related documents were tendered in evidence. I shall not refer to all of that material in the course of this judgment but, rather, those parts of the evidence and reports that appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
7 Counsel for the defendant, Mr Moulds, at the outset outlined the position of his client. He said there were a number of other issues in Ms Stapleton’s life, in particular an incident of bullying, which gave rise to significant psychological and emotional issues He said there was little to relate the incident of 13 December 2009 to Ms Stapleton’s current psychological condition. Further, whether it related or not, the consequences to the plaintiff of the psychological injury did not meet the statutory test.
Relevant background
8 Ms Stapleton was born in New Zealand and is now fifty years of age. She came to Australia in 1992. She completed the equivalent of Year 12 and worked in various jobs. She attained the qualification of a Division 2 Nurse and worked in various nursing positions. She worked on wards at the Frankston Hospital. She said that in 2009, she had applied for, and been accepted, to undertake training to become a Division 1 Nurse, which would improve her qualifications and pay rate. That plan was interrupted by her psychological injury.
9 Earlier in 2009, Ms Stapleton was subjected to bullying at work by a co-employee. She consulted her treating general practitioner, Dr Baria, and reported the matter. She underwent some counselling in late 2009. According to an entry in the clinical notes of a general practitioner,[1] she had arranged for her union to become involved, was not keen to return to work with the supervisor who allegedly bullied her, felt nauseated, her sleep was affected, and she was given stress leave.
[1]Defendant’s Court Book (“DCB”) 115
10 The clinical notes record:
“… stress at work; new boss for 6 months
…
going for counselling
unable to go to work today.”[2]
[2]DCB 118
11 Further, on 26 October 2009:
“ongoing stress at work
1/52 (19/10/09) reportedly had some bullying incident at work, involving her supervisor got ANF involved
made a complaint with admin and filled
was unable to go to work for 4/7
went to work over the weekend
not keen to go back as she will be working with her supervisor today
felt nauseated; not sleeping well thinking about it; crying at times feeling angry
p- long chat
will follow up complaint
stress leave
Actions:
Letter Created … .”[3]
[3]DCB 115
The injury and its consequences
12 On 11 December 2009, Ms Stapleton suffered an injury to her right elbow while at work. She said she heard a “crack” and had stabbing pains, although the elbow improved during the day. In cross-examination, she retreated from this description somewhat and described the elbow as being “uncomfortable”.
13 Two days later, on 13 December 2009, she was working in a ward at the Frankston Hospital with a patient whom she described as elderly and psychiatrically disturbed. Ms Stapleton had to prevent the patient getting out of bed. She said the plaintiff became agitated and violent, and punched her on the right elbow, which had been bandaged from the earlier incident. The attack kept up for her whole shift which, apart from short breaks, was spent with the patient. She said she reported the matter to her manager on several occasions. She said the pain in the right elbow area was severe. Despite her complaint, she was told to remain with the patient.
14 Ms Stapleton was off work for several days, but returned to nursing duties at the hospital working the same hours as before, but undertaking restricted duties.
15 On 24 December 2009, Ms Stapleton filed an Incident Report which, in part, said:
“Elbows was painful Frid 11.12.09 … Attended work Sunday 13.12.09 … bandage in situ. Pt (patient) punched/hit elbow. … Unable to move Arm Monday 14.12.09. Work a bit slower … .”[4]
(sic)
[4]Exhibit B
16 There was no reference in that report to any psychological reaction to the incident.
17 In relation to her elbow injury, Ms Stapleton was referred, eventually, to Dr Minoo Patel, orthopaedic surgeon, who performed an arthroscopy and debridement of the right elbow on 28 May 2010. This provided significant relief from the pain in the elbow, albeit she remained with restriction of movement. She was off work for the surgery for about eight weeks. She returned to work as a nurse at the hospital on about the same hours as before injury (32 hours per week), although on lighter duties.
18 Ms Stapleton was treated by her general practitioner, Dr Lawrence Baria, whom she first saw on 15 December 2009. He recorded:
“[R]ight elbow pain since Saturday; did some work at ED day before; no particular trauma … .”[5]
[5]DCB 115
19 Dr Baria continued to treat her on a number of occasions in December 2009 and January 2010. All of those attendances related to physical problems with the elbow. He provided pain-relieving medication and referred her for physiotherapy. Eventually he referred her to Mr Crow, who referred her to Dr Patel. Dr Baria’s treatment continued, on a regular basis, until May 2010. There is no reference throughout his clinical notes as to any psychological reaction to the injury. Aside from his clinical records over the period, the plaintiff’s solicitors did not provide any report from Dr Baria. There is no satisfactory explanation for this failure.
20 In cross-examination, Ms Stapleton said that Dr Baria was not attentive to her problems. She said she complained to him regularly of psychological issues arising out of the incident with the patient, but he would not listen. She said he kept prescribing medication. She decided not to remain under his care and, instead consulted Dr Gihong Ouyang of the Thompson Road Clinic on 25 August 2010. He had treated the plaintiff over a period from 2003 until early 2009. According to his report,[6] she complained of depressive symptoms for two months before first seeing him, with mood swings, disturbed sleep, feelings of dissociation, poor concentration, poor motivation and low energy levels. She complained of fear of returning to the hospital, as she might be attacked again. He diagnosed PTSD and referred her to Dr Igor Shvetsov, psychiatrist, whom she first saw on 2 September 2010. She last saw Dr Ouyang in August 2011.
[6]PCB 36
21 As from January 2012, Ms Stapleton again changed general practitioners and consulted Dr Tarik Albir and Dr Balbir Singh of the Duff Street Medical Clinic. In cross-examination, Ms Stapleton said these various changes of practitioner, aside from Dr Baria, were related to some practices charging a Medicare fee, and others a higher fee. Her explanation was difficult to understand.
22 Practitioners at the Duff Street Clinic have treated Ms Stapleton for a range of issues, including chronic back pain and gynaecological issues which led, eventually, to an hysterectomy in April 2013. A significant issue of complaint, according to the clinical notes, was back pain. There is occasional reference to psychological problems and psychiatric treatment, in particular, in 2016. There is reference in the report of Dr Albir[7] to a number of panic attacks in 2016. It is reasonable to accept, given Ms Stapleton has been treated by Dr Shvetzov since September 2010 through to the present time, that he has been her primary treating practitioner and prescriber of antidepressant and like medication.
[7]PCB 27
23 Dr Igor Shvetsov has seen her regularly over the years. When she first presented, she complained of frequent mood swings, disturbed sleep, disassociation, low energy, poor motivation and panic attacks. She provided to Dr Shvetsov the history of being attacked by the patient in December 2009. She described increased depression and an intense fear of going back to work at the hospital because of the risk of being attacked again. Dr Shvetsov described the clinical picture as complex. He thought she was predisposed to mental illness. He concluded she suffered PTSD directly related to the trauma at the hospital. He noted avoidance behaviour. He commenced her on the antidepressant medication, Sertraline, with a dose of 150 milligrams. Early on, he noted that her symptoms had significantly diminished after some treatment. He said she was unable to work as a nurse, but was able to undertake administrative work. By July 2013, he said her condition had further improved, and noted that she was back at work, although still on antidepressant medication. By 2015, he noted she was very anxious and agitated, and that there had been progressive deterioration recently.
24 In his report of July 2016, Dr Shvetsov said over the previous twelve months, Ms Stapleton had been receiving attention from her manager, who she felt was patronising and belittling her. There was reference to incidents of incontinence and feeling trapped at work. He said there were issues between Ms Stapleton and her husband. He was drinking excessively and there were frequent arguments.
25 Dr Shvetsov noted that Ms Stapleton was having panic attacks, and impaired sleep with nightmares. He gave her time away from work. He modified the antidepressant medication and increased Sertraline to 250 milligrams and introduced another antidepressant, Mirtazapine. She was also taking the tranquiliser, Diazepam, and a mood stabiliser, Quetiapine. His diagnosis of PTSD continued and he noted that she was experiencing intrusive recollections and nightmares of the event with avoidance behaviour, in particular, visiting hospitals. While he said that her condition had significantly improved by 2013, it had deteriorated in 2015 and 2016. He concluded that in addition to the PTSD, she had developed a Major Depressive Disorder. He said she was unable to return to work as a nurse.
26 The symptoms continued on into 2017, with some improvement in anxiety and mood. A regime of medication remained. Dr Shvetsov maintained that she was unable to return to work as a nurse. He thought she would be able to handle alternative duties up to fifteen hours per week.
27 According to Ms Stapleton’s evidence and affidavits, she was off work for approximately six weeks around the time of the surgery to her elbow. She returned to work on approximately the same hours as before the incident. She was then transferred to work at a Mt Eliza geriatric care facility where she remained, on administrative duties, until March 2016. From that time, according to her affidavit, such was the state of her psychiatric condition that she was unable to continue working. She has not worked since.
28 Ms Stapleton’s manager at the Mt Eliza facility was Ms Kim Dobson. In a statement of 17 October 2016,[8] Ms Dobson set forth details of her engagement with Ms Stapleton. She set out the duties that were undertaken and the difficulties Ms Stapleton had with problems with her back. There were various absences from work related to her back and some reference to stress. Ms Dobson said:
“I did not have any issues with Deb’s performance when she was at work. She did what was asked of her and she quietly went about her work and got on with it. She did her job well and [I] only recall a few times hearing her being abrupt when talking to someone on the phone but this can be the frustrations with doing the job at times. I had no complaints from anyone about this.
I have spoken to Deb several times after she ceased work to see how she was and on one occasion asked her if her stress was caused due to something at work. She did allude to having anxiety over a period of time in the last 12 months that she worked at MEACAS. During our various conversations this was largely initially attributed by Deb to her personal relationships.”[9]
[8]Exhibit 1
[9]Statement of Ms Dobson – paragraphs 28-29
29 Ms Dobson said she had no knowledge of Ms Stapleton having to leave work because of symptoms of PTSD. It would seem from the statement, that the majority of issues when she was working at Mt Eliza related to her back. In the course of cross-examination, Ms Stapleton accepted she had told Ms Dobson that it was not so much the work that was difficult, but “other things” were getting on top of her.
30 In March 2015, Ms Stapleton was away sick over two days, 6 and 7 March 2015. She had booked holiday leave immediately afterwards. In fact it became clear that she had taken the sick leave in order to facilitate the holiday. Her explanation for this in the course of cross-examination was quite unacceptable.
31 In terms of current treatment, Ms Stapleton continues to see Dr Shvetsov on about monthly for the prescription of medication and counselling. She sees her treating general practitioner, Dr Albir, regularly. She takes a significant amount of medication, including Mirtazapine, Zoloft and Valium.
32 Ms Stapleton says she has developed a fear of patients, particularly elderly patients. She has frequent nightmares of being assaulted in a closed room. She has flashbacks of the incident. She has become socially isolated and does not like going out of the house. She fears crowds, and hospitals. She says she is stressed and anxious. She has suffered panic attacks which last for half-an-hour or so, but take time to recover from. She is confused and has memory loss. Her sleep is disturbed and her relationship with her husband has been affected. She is distressed at the loss of her career and does not believe she could work as a nurse.
Consultant practitioners’ reports
33 Ms Stapleton was assessed by Dr Albert Kaplan, psychiatrist, in December 2016. He received a history of the assault on 13 December 2009.
34 Dr Kaplan said Ms Stapleton presented with a complex history. He said, because of the trauma of the incident, she had been left with intrusive thoughts, occasional nightmares, avoidance features and increased arousal. She had developed a phobic anxiety about hospitals and working in their environment. He said she had developed a Panic Disorder with Agoraphobia. This, he said, had developed on 13 December 2009 and was aggravated by subsequent stressors. Dr Kaplan thought her psychiatric condition incapacitated her for work. He thought she would be unable to return to work in the health industry. He thought her condition had a major impact upon her social and recreational activities.
35 Ms Stapleton was examined by Associate Professor Peter Doherty, psychiatrist, in 2016 and 2017.
36 Associate Professor Doherty considered Ms Stapleton may have had an Adjustment Disorder with Depressed and Anxious Mood relevant to the incident of December 2009. He said the condition had been treated over the years and had faded and remitted. He said that issue had been replaced by difficulties with her work at Mt Eliza, and treatment for a gynaecological problem, including hysterectomy. He said that her anxiety was no longer related to the incident, and the link between the two was broken when she commenced work at Mt Eliza. He did not think she had a Major Depressive Disorder, nor PTSD. When taking only the 2009 incident into account, she had no reduced work capacity.
37 For his second report in 2017, Associate Professor Doherty was provided with the reports of Dr Shvetzov. He noted Ms Stapleton’s complaints of persistent symptoms of anxiety with fears of elderly persons and hospitals. He thought the fears were disproportionate to the circumstances of her injury. He described her as highly opinionated, sour and disgruntled. He noted she had ceased work in 2016, but he was not told of the issues regarding her back. He described the relationship between her current psychiatric state and the incident on December 2009 as “tenuous”. He considered that she had left work in 2006 out of resentment and anger with the management of Mt Eliza. He considered her dose of medication for psychological issues too high. He thought there would be an improvement in her psychological condition when the litigation was concluded. He thought she had the capacity to undertake retraining in suitable employment. He concluded:
“… My view is that the worker left work in mid 2016 disgruntled an peeved, for reasons that cannot be easily linked to the 2009 injury or its consequences.”[10]
[10]DCB 35
Submissions on behalf of the Defendant
38 Mr Moulds submitted Ms Stapleton had issues with bullying in 2009 which required treatment from her general practitioner on a number of occasions, and counselling. He pointed to the stark difference between the notes of the treating general practitioner, Dr Baria, and the evidence of significant trauma described by the plaintiff arising from the incident on 13 December 2009. Mr Moulds said it was difficult to understand how she could complain of such trauma where there was little if anything in the notes of Dr Baria to support such a view.
39 Mr Moulds submitted that the plaintiff had a tendency to make the most of the incident of 13 December while downplaying the other significant incidents in her life. It was curious that she was now critical of the treatment by Dr Baria whereas his notes set out details of various referrals, including to an orthopaedic surgeon for her right elbow issues. Mr Moulds said the issue of her taking sick leave in 2015 reflected on her general credibility. He said she was caught out attempting to take sick leave when she was actually on a holiday.
40 Mr Moulds noted the extensive problems, both from the clinical notes, and from her supervisor’s statement, in relation to a lower back problem while she was working at Mt Eliza. Such was the nature and extent of the severity of the problem, that on occasions, Ms Stapleton had become incontinent. She had been given sick leave from work, had her work station re-arranged and took pain-relieving medication. He said this was a considerable stressor in itself. He said the nature and extent of her back injury was sufficient for her to be concerned about her work future.
41 There were other issues of a psychological nature which clearly affected her. Her relationship with her husband had become fractured with his drinking and abuse. Her daughter was suspected at one point to have had an issue with drugs. She had a strained relationship with her supervisor at Mt Eliza, and the reason for her leaving employment there was, in reality, to do with her back problems.
42 Mr Moulds said I ought to prefer the opinion of Associate Professor Doherty to that of the treating psychiatrist, Dr Shvetzov. The latter, he said, had not received a comprehensive history of Ms Stapleton’s back issues. He said Ms Stapleton could work 32 hours per week from a psychological perspective alone. He said that it was really her back problem which caused a restriction in her work duties and she would not have been in a position to work from that perspective alone.
Analysis
43 I did not find Ms Stapleton a particularly satisfactory witness. She was distressed and tearful regularly in the course of cross-examination. In my assessment, she is very focused upon the incident of 13 December 2009 as being the source of all her woes. I was unimpressed with her explanation about taking sick leave when it is clear from the circumstances that it was intended as a holiday. She gave no satisfactory explanation of this. I reject her explanation that she in fact told Dr Baria of the trauma caused by the patient incident. Had she done so, I am of the view it would have appeared in his clinical notes. In all other respects he appears to be a conscientious treating general practitioner. This is compounded by the fact that no report was obtained from Dr Baria.
44 However, by 2010, when she saw Dr Ouyang, and then Dr Shvetzov, she complained of the onset of a range of psychological symptoms around mid 2010. It is quite plausible that in the early times, the focus was upon the physical injury to her right elbow, which subsequently required surgery, rather than upon psychological issues.
45 Notwithstanding the reservations I have about Ms Stapleton’s credibility, I was impressed by the various reports of her treating psychiatrist, Dr Shvetzov. He has treated her now for seven years. His reports set out in detail the various symptoms of which she has complained, in particular, those such as nightmares, re-living of the incident and avoidance behaviour which are all related to what occurred on 13 December 2009.
46 I accept that there have been a range of other issues in her life which have contributed to her psychological state. There was an incident of bullying earlier in 2009, although the sequelae of that appeared to resolve.
47 I further accept that there was some breakdown of the relationship with her husband and an incident with her daughter. Both were stressful experiences. Of significance is that I am satisfied she has had issues with her back in the time of her employment at Mt Eliza. This has led to conflict with her manager. I accept that both her back issues, and her relationship with Ms Dobson and others at Mt Eliza have contributed to her psychological state.
48 She left employment there in 2016. This was for a range of reasons. Her back issue contributed, as did the stress and anxiety in her relationship with those with whom she worked. However, I accept, from the reports of Dr Shvetzov, that the issue with the patient in 2009 also played a significant role. I prefer the opinion of Dr Shvetzov to that of Associate Professor Doherty in that regard. As stated, Dr Shvetzov has been treating her over a lengthy period and prescribing medication. He is in the best position to make an assessment of the causative relationship between the December 2009 incident and her current psychological state. His reports were extensive and thorough and concluded that she was suffering not only a PTSD, but also a Major Depressive Disorder.
49 I accept his opinion that that has had a significant affect upon her recreational and domestic activities and played a significant role in her leaving work in 2016, and her current capacity for alternative duties. I accept his opinion that she has a capacity for 15 or so hours per week providing she does not work in hospitals or places where she may have contact with patients.
50 While there are other contributing issues, I am satisfied that the incident of 13 December 2009 was a significant contributing and causative factor to her current psychological state.
51 Given the amount of medication she takes, the frequency of the psychiatric treatment and the nature and extent of her symptoms, I am satisfied that the consequences to her of the psychological condition achieves the “severe” level. I am further satisfied that her psychological condition, as described by Dr Shvetzov, has resulted in a loss of earning capacity of more than 40 per cent.
52 Consequently, her application, both in respect of pain and suffering, and economic loss should be upheld. I shall make consequent orders.
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