Sulja v George Weston Foods Pty Ltd

[2009] VCC 311

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
WORKCOVER LIST

SERIOUS INJURY DIVISION

Case No. CI-08-01254

ZUZANA SULJA	Plaintiff
v
GEORGE WESTON FOODS PTY LTD	Defendant
(ABN 45 008 429 632)

---

JUDGE:	HIS HONOUR JUDGE SHELTON
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 13 February 2009
DATE OF JUDGMENT:	4 March 2009
CASE MAY BE CITED AS:	Sulja v George Weston Foods Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0311

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – serious injury as defined in paragraph (c) of the definition in ss.(37) – chronic pain syndrome – Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F O’Dwyer SC with	Slater & Gordon Pty Ltd
Mr J Goldberg
For the Defendant	Mr P Jens	Minter Ellison
HIS HONOUR:

Introduction

1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of an injury suffered by the plaintiff in the course of his employment with the first defendant. S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that an injury suffered was a serious injury.

2 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:

“serious injury means –

. . .

(c) permanent severe mental or permanent severe behavioural

disturbance or disorder ...”

3          In Mobilio v Balliotis and Ors [1998] 3 VR 833, Brooking JA, at p.486, stated in the context of a serious injury application under the Transport Accident Act 1986 that “severe” in the context of a serious injury is a stronger word than “serious”. The President, at pp.834-835, agreed with this approach, which is now enshrined in s.134AB(38)(d).

4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity – see s.134AB(38)(b) of the Act.

The Issues

5          It is not in issue that during 2001 an injury developed to the plaintiff’s left wrist, arm, shoulder and the left side of her neck as a result of her work with the defendant (“the injury”). What is in issue is firstly, the extent of the plaintiff’s present mental condition (see ss.(38)(j)) and, secondly, a causal issue as to whether the plaintiff’s present mental condition is attributable to her employment with the defendant.

The Plaintiff’s Evidence

6          The plaintiff’s evidence consists of affidavits sworn by her on 30 October 2007 and 14 January 2009, together with viva voce evidence given by her on the hearing of the application.

7          The plaintiff was born in Yugoslavia in 1957 and is now aged fifty one. She came to Australia in 1969 aged twelve and left school at age fourteen. She married at age twenty and has two children. She worked predominantly in factory work from the time of leaving school apart from time off when her children were born.

8          She commenced working with the defendant on a casual basis in 1993 and was subsequently made permanent. In the course of 2001, she states that an injury to her left arm gradually developed which affected her left wrist, arm, shoulder and the left side of her neck. She consulted her general practitioner, Dr Ikladios of Werribee Group Healthcare on 28 December 2001 complaining of pain and swelling of the left wrist and a painful left elbow and shoulder, all of which have been developing over the previous year. After a time, she returned to work on light duties. Such duties were difficult to obtain in her employment and in the end she took a redundancy package in September 2003 when it appeared that she would not be able to return to normal work duties. She has not worked since September 2003. She states that she progressively became severely depressed and anxious and that this caused the break-up of her marriage. She states that she had no psychiatric problems prior to sustaining the injury in 2001. She attempted suicide in June 2005 by overdosing on pills.

9          Before she sustained the injury she was earning approximately $490 per week net. She is estranged from her two children and they will not allow her to look after their children on account of the medication she is taken.

10        She states that at present she still suffers pain in her left shoulder and neck and that her left wrist also swells and that she suffers headaches. She lives alone.

11        She presently takes Avanza, Valium, Tramadol, Panadeine Forte and Nexium for stomach pain.

Other Lay Evidence

12        The plaintiff’s estranged husband swore an affidavit on 27 October 2008, stating that prior to the injury he and the plaintiff had a very happy marriage. He states that then her mood and their relationship deteriorated. He states that she became very anxious and depressed about her condition and that she used to yell and scream at him and on occasions would not speak to him for two or three weeks at a time, and would stay locked in her room for long periods. He found it impossible to continue living with her. He states that the plaintiff’s personality is totally different since she sustained the injury.

13        The plaintiff’s son, Martin Sulja, has sworn an affidavit dated 14 November 2008, which generally confirms the matters deposed to in his father’s affidavit. He states that the change in his mother’s personality has had the effect of estranging her from the family and that he now rarely sees her. He states that he would not be prepared to allow his two-year-old son to be left in her care as he is concerned that he would not be safe “due to her mood swings and erratic behaviour, and inability to concentrate on tasks at hand”. He deposes:

“Before she was injured, my mother was a ‘life of the party’ type person. After being injured, she has become unhappy and unpleasant. She burnt family photographs at one stage. She has on occasion insisted that I leave her house due to an argument that had arisen. That never occurred before my mother was injured.”

Medical and Like Evidence

14        It is convenient to deal, firstly, with the evidence of Professor Lorraine Dennerstein, psychiatrist. She examined the plaintiff on 15 January 2009 and provided a report to her solicitors dated 16 January 2009. In it she states:

“She has Chronic Pain Disorder associated with factors and Major

Depressive Disorder which is now psychotic in intensity.

Her mood disorder began as an Adjustment Disorder with Mixed Anxiety and Depressed Mood and has progressed in intensity despite treatment with anti depressant medications. She now has Major Depressive Disorder. Features of this include her persistently lowered and angry mood, tearfulness, mood swings, psychic and somatic anxiety, diminished interest or pleasure in previous activities, insomnia, feelings of worthlessness, diminished ability to think or concentrate, paranoid ideation and auditory hallucinations which are mood congruent. There have been marked effects on her behaviour and she has become socially withdrawn, isolated, her family structure has broken down and she has become abusive to others and reports gambling and smoking.

. . . It seems likely that she became anxious about her physical state and this worsened her physical complaints which led to frustration with their limitations and the development of depression.

Her psychological condition was initially treated by her general practitioner and she was not referred to a psychiatrist until 2006. She has been trialled on two different anti-depressants. Given the deterioration in her mental state she needs urgent review of her psychotropic medication and should be considered for inpatient admission. Anti-depressant medication may need to be increased, changed, augmented with a drug and if there is not sufficient improvement, ECT should be considered.

The prognosis is poor. Her mental state has been showing a progressive deterioration and she is now psychotic.

. . .

She has no work capacity as her mood disorder is now of psychotic intensity. Given the length of time of her psychiatric disorder and its progressive nature of her work incapacity, it is now permanent.

I anticipate that she will not have any future work capacity.”

15        Dr Ikladios first saw the plaintiff on 28 December 2001. He has been seeing her since regularly, and generally at least monthly. He has provided reports dated 8 February 2002, 26 August 2003, 3 March 2006 and 10 January 2009. He also gave viva voce evidence before me.

16        Dr Ikladios stated that when the plaintiff first consulted him on 28 December 2001 she was complaining of “pain and swelling of left wrist, painful left elbow and shoulder for more than a year”. He stated that there was a lump on the dorsum of her left wrist. An x-ray and ultrasound of the left wrist was performed on 28 December 2001 which confirmed the presence of a ganglion on the left wrist. He referred the plaintiff to a general surgeon, Mr Patrick Hayes, and a neurosurgeon, Mr Thiew Han. They recommended conservative treatment of medication and physiotherapy. He stated that by April 2002, the plaintiff had developed depression and insomnia and he gave her some initial counselling. He also prescribed a mild antidepressant for her. He stated that after December 2001, the plaintiff was keen to return to work.

17        Dr Ikladios stated that the plaintiff’s mental condition gradually deteriorated but that he only thought it necessary to refer the plaintiff to a psychiatrist in early 2006. It was then he referred the plaintiff to Dr Dhushan Illesinghe. He states that the plaintiff now takes daily painkillers and also tranquillisers and antidepressants. In his report of 10 January 2009, he states that the plaintiff developed depression and panic attacks as a result of the chronic pain from her neck, left shoulder, elbow and arm. He stated that over recent times she is becoming irrational. It was put to him in cross-examination that the plaintiff’s present mental condition was due to the termination of her employment, marital issues, a hysterectomy in October 2002 and the sudden death of her father in January 2003 and that her work with the defendant was not a significant or materially contributing factor to her present mental condition. He disagreed with this. He expressed the view that the plaintiff had no work capacity in the foreseeable future as a result of her psychiatric condition. He indicated that he agreed with the opinion of Professor Dennerstein.

18        Dr Illesinghe, consultant psychiatrist, has provided a report dated 31 May 2006 and also gave viva voce evidence. He has seen the plaintiff every four to six weeks since first seeing her on 12 April 2006. In his report he states:

“Ms Zuzana Sulja is a 49-year-old woman who has not suffered any psychological illness prior to her physical injuries. She has developed a chronic pain syndrome in relation to work related injuries around 2001. She appears to have developed depressive symptoms around 2001. Her physical disability and emotional changes such as irritability had lead [sic] to the separation with her husband. Her depressive symptoms had responded only partially to anti-depressants (Effexor XR 75mg). Recently, she has been given a different anti-depressant and the effectiveness of this is still to be evidenced.

She is currently prescribed Avanza (mertazapine) [sic] 30mg daily. I am continuing to see her at regular intervals. The likely prognosis of her psychological disorder is difficult to be ascertained since it would depend on the outcome of her physical injuries. Considering the natural history of such conditions, i.e., physical injuries giving rise to chronic pain syndromes, her physical as well as psychological condition is likely to worsen in the long-term. Therefore, to need ongoing psychiatric follow- up on a regular basis. It is difficult to pinpoint a timescale for her treatment since she is likely to need long-term follow-up indefinitely.”

19        In the witness box he confirmed that the plaintiff’s chronic pain syndrome was caused by her work with the defendant and this chronic pain syndrome then led to her present depressive condition. He agreed with Professor Dennerstein that the plaintiff was suffering from a major depressive condition and that her mental condition was deteriorating. It was also his opinion that from a psychiatric viewpoint the plaintiff had no work capacity.

20        Dr Dush Shan examined the plaintiff at the request of the defendant’s solicitors on 28 November 2008 and has provided a report of that date. In the report he states:

“It is noted that at the time that the patient ceased work, she did not consider herself incapable of work due to any psychological symptoms and is in fact disappointed with the employer for not continuing to offer her modified duties.

Based on the information available, I can only conclude that the patient presently warrants a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.

As far as I can determine, employment is not a significant or material contributing factor to a psychiatric disorder in this patient presently.

Instead, the material contributing factor is marital and family issues that developed after the patient ceased work and was able to remain at home resting and not aggravating her physical condition through any work.

In terms of capacity for work, based on the patient’s presentation today and her account of herself, her psychiatric condition does contribute to some incapacity for work. She would have difficulty with work of a fast pace or requiring high levels of concentration. She would be able to cope with work that requires mental concentration of a level similar to that required when operating a motor vehicle, which she presently does. The prognosis is that the patient’s condition will remain largely unchanged unless evidence develops that she has an unrelated medical condition, such as Parkinson’s Disorder.

The patient is very disappointed with the employer and in consequence, does tend to emphasise a high level of disability, all of which she attributes to the injury acquired at employment. This would need to be allowed for when assessing her condition.”

21        Carole Shields, consulting psychologist, assessed the plaintiff for NabEnet, Integrated Rehabilitation Services on 17 January 2002 at the request of the defendant’s insurer. She accepted that the plaintiff suffered pain in her left wrist for some time prior to December 2001. By then it had become very painful which caused her to see Dr Ikladios at the end of December 2001. The plaintiff told her that at that stage her family was supportive of her. She continues:

“I administered the Beck Depression Inventory — II (BDI-ll), which is a 21 item self-report instrument, developed as an indicator of the presence and degree of depressive symptoms in adults and adolescents. It is also used to measure the degree of depression in those who have been diagnosed with this condition.

Ms Sulja scored 17 on this inventory. The cut-off point from mild to moderate symptoms of depression is 19 so, at 17, she is still within the mild range. She did express feelings of sadness and also extreme pessimism and she is experiencing a loss of confidence in herself. She is also experiencing a loss of energy and an increase in tiredness and fatigue. Her sleep is also very interrupted.

Ms Sulja appears to be very positive about her situation and is keen to find a resolution to her symptoms so that she can return to work as soon as possible. She is troubled by swelling and pins and needles when she undertakes any activity.”

22        Dr Ikladios generally agreed with the comments of Ms Shields upon the plaintiff.

23        Dr Geoffrey Littlejohn, rheumatologist, examined the plaintiff for the defendant’s insurers on 25 May 2006 and has provided a report dated 29 May 2006. In it he states:

“1	I could not identify any tissue damage or injury in the area of the left shoulder, left arm or left wrist in this lady. There is no current evidence of ganglion in the left wrist as a cause for her symptoms.
She has a clearcut left upper quadrant regional pain syndrome. This causes increased sensitivity of pain and movement nerves in this region such that minor activity and low levels of stimulation will induce discomfort and pain. This involves the left side of the neck, upper chest wall and back and left arm including wrist and hand. It is the regional pain syndrome which is causing her current problems of pain and muscle tightness.
The pain syndrome does not relate to ongoing tissue damage or injury.
The pain syndrome relates to a complex psychological reaction causing regionalised increased activation of pain and movement nerves as indicated above. The pain syndrome reduces her range of motion in these areas. I believe she has normal range of motion of all joints of the left upper quadrant (shoulder, elbow and wrist and neck) but formal examination shows decreased range due to pain apprehension and organic factors.

2 Based on her history, employment did seem to relate to the initial onset of discomfort in the left wrist. Her pain syndrome has developed in the context of that problem. The initial discomfort in the left wrist may have been due to the ganglion but it is impossible to tell in retrospect. In any event, any contribution from the ganglion has now passed. The ongoing pain syndrome relates more to psychological factors as I have indicated above. These psychological factors likely interact with work factors due to the predicament that she found herself in and other personal and emotional responses to the initial discomfort she had. I would defer to a psychiatrist in regard to making other links between her work and her psychological state. I believe the opinion of the Medical Panel is appropriate in stating that the regional pain syndrome did relate to work.”

Discussion and Conclusions

24        Mr O’Dwyer SC, who with Mr Goldberg appeared for the plaintiff, indicated that the plaintiff accepted Dr Littlejohn’s opinion as to his physical condition, namely that the plaintiff was suffering physical injuries to the “left upper quadrant” but that there was no longer any physical injury being suffered by her and that she now suffers from a regional pain syndrome. Dr Littlejohn agreed with the Medical Panel opinion of 6 February 2004 that this regional pain syndrome related to her work with the defendant.

25        The plaintiff’s general practitioner, Dr Ikladios, her treating psychiatrist, Dr Illesinghe, and Professor Dennerstein all agree that the plaintiff is suffering from a major psychiatric disorder. There was a considerable body of evidence before me that the plaintiff is suffering from a regional pain syndrome which arises from her employment with the defendant. Dr Shan is the only reporter who does not so conclude. He however has not had the benefit of the latest opinions expressed by Professor Dennerstein, Dr Illesinghe and Dr Ikladios. In fact he does not address the issue of chronic pain syndrome. In all the circumstances, and given the opinion of Dr Shan is in conflict with that of the plaintiff’s treating general practitioner and psychiatrist who have been seeing her regularly, one for seven years and one for nearly three years, and whose opinion is supported by Professor Dennerstein, I prefer their opinions to those of Dr Shan. I am enforced in this view when I consider the medical and like evidence in the context of the whole of the evidence before me as I am required to do by Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, at 611. The plaintiff was earning a considerable income prior to the injury which suggests that she was a good worker. She did not have any prior psychiatric history. She states this and is supported in this by her estranged husband and son. What they attest to is consistent with her medical history.

26        Mr Jens, who appeared for the defendant, spent some time cross-examining Dr Ikladios on the paucity of references to the plaintiff’s mental condition in his clinical notes in the years following the injury. However, this is consistent, in my view, with Dr Ikladios’ evidence that the plaintiff’s mental condition only deteriorated gradually, even though there is reference to it in Ms Shield’s report of psychological problems starting to develop in early 2002. Mr O’Dwyer readily conceded that the depression suffered by the plaintiff prior to 2006 was relatively mild.

27        Mr Jens, in his final address was critical of the clinical notes of Dr Illesinghe which made little reference to any psychiatric problems. Dr Illesinghe answered criticism of his clinical notes by saying that he kept them primarily to assist his memory and to remind him of what events had taken place in the patient’s life rather than making similar comments each time about her psychiatric condition. I find this explanation somewhat unusual. In any event though, this, in the end, does not persuade me that I should not accept Dr Illesinghe’s opinion, consistent as it is with the opinions of Dr Ikladios and Professor Dennerstein.

28        Video footage of the plaintiff from late November and early December 2008 was shown. I agree with Mr O’Dwyer’s submission that it is consistent in general with the medical and lay evidence before me regarding the plaintiff’s mental condition. In particular, I note the footage of the plaintiff walking around her front garden in pyjamas at 10.45 am on a weekday.

29        Mr Jens sought to impugn the credit of the plaintiff and suggested that she was exaggerating her symptoms. He referred in particular to the plaintiff’s evidence as to when she and her husband separated and her recent communications with him. I accept, in general, Mr O’Dwyer’s submission that her answers were somewhat confused and uncertain, which is consistent with her mental condition, particularly the irrationality which has developed over recent times and defensive in that she was embarrassed at what she regarded as prying into her personal life.

30        In all the circumstances, I accept the opinion of Professor Dennerstein, supported as it is by Dr Ikladios and Dr Illesinghe that the plaintiff has suffered a major depressive disorder, that it is permanent, that it arose from her employment with the defendant and that she has no work capacity on account of this condition.

31 It follows that the plaintiff has a loss of earning capacity of greater than 40 per cent. She has clearly satisfied s.134AB (38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (d), so far as loss of earning capacity consequences are concerned.

32        Mr Jens did not dispute that should I find that the plaintiff has suffered a serious injury with respect to loss of earning capacity, it followed that I should also find that the plaintiff has suffered a serious injury with respect to pain and suffering consequences.

33        I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to pain and suffering and loss of earning capacity.

- - -