Tekeleyohannes v Caterfare Pty Ltd
[2013] VCC 991
•13 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03576
| SABA TEKELEYOHANNES | Plaintiff |
| v | |
| CATERFARE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July and 1 August 2013 | |
DATE OF JUDGMENT: | 13 August 2013 | |
CASE MAY BE CITED AS: | Tekeleyohannes v Caterfare Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 991 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – development of secondary psychiatric injury – credit – whether the consequences of the secondary psychiatric injury are “severe”
Legislation Cited: Accident Compensation Act 1985, s5(1); s134AB(16)(b); s134AB(37); s134AB(38)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Adviceline Injury Lawyers |
| For the Defendant | Ms K Galpin | Wisewould Mahoney Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 26 July 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering and loss of earning capacity damages.
3 Mr J Fitzpatrick of Counsel appeared for the plaintiff and Ms K Galpin of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is a secondary psychiatric condition said to be a permanent severe mental or permanent severe behavioural disturbance or disorder. Mr Fitzpatrick opened the plaintiff's case on the basis that the physical injury to her right shoulder was also a serious injury, but that was abandoned after he closed the plaintiff’s case.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 8A to 34F, 38 to 144 and 148 to 174: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1 to 167: Exhibit 1;
· Extracts of clinical notes of Dr Soysa, general practitioner: Exhibit 2; and
· Extracts of clinical notes of Dr Andrianakis, general practitioner: Exhibit 3.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”, and ss(37)(c) of the Act, which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7 The relevant considerations which apply to such an application based upon paragraph (c) are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
(b) The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than “serious to the extent of being severe” .
(e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i) Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury, whether it is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the test contained in ss(38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff's background
8 The plaintiff was born in January 1974 in Ethiopia. She is now thirty-nine years of age. She is single. She has a child, Hermela, who is now five years of age, and who is dependent upon the plaintiff in all respects.
9 The plaintiff was educated to the Australian equivalent of Year 12 in Ethiopia. She subsequently undertook a training course in a hospital, which she completed in 1992. She undertook a typing course in 1993. It is unclear what employment the plaintiff pursued after completing the typing course in 1993 and 1998 when she migrated to Australia.
10 Upon her arrival in Australia, the plaintiff was first employed as a room attendant at a hotel. It would appear that she worked in that employment until 2001 when she commenced employment with the defendant. She described that employment as with an organisation known as “Top Cut”. She undertook work as a process worker with it.
The Plaintiff’s injury
11 It would appear that the tasks that the plaintiff was required to undertake in her work as a process worker involved preparing cuts of meat. In her affidavit sworn 8 March 2011, she described her work as involving “a lot of repetitive, heavy work, including cutting ribs, pushing heavy trolleys, and putting meat and ribs on shelves above head height”.
12 In about October 2006, she suffered neck pain and headaches. It was thought that she had acquired Q fever. Tests undertaken on her at the hospital were negative. She was off work for a couple of weeks, and then returned to work.
13 In about November 2006, she experienced pain in her right shoulder and to the right side of her neck. It would appear that she continued doing the same work as before, until about December 2006, when she was instructed not to “chop the ribs anymore”. She was put on a cryovac machine. She described that as “still very heavy work”. It involved pulling a door open and pushing it shut, which sometimes involved the necessity for assistance from another worker. She also described having to push racks which were heavy.
14 The plaintiff then described an attempt to return to work in February 2007, but makes no reference to actually being off work. I infer that she must have been off work. In any event, she says that she returned to work in February 2007. She was given work in a kitchen which involved cleaning and drying plates and glasses and putting them away.
15 The plaintiff again refers to attempting to return to work in May 2007, but made no reference to actually being off work. Again, I infer that she must have been off work. In any event, she says that she returned to work in May 2007 undertaking work which involved going into a freezer, putting meat in boxes and taking the boxes to a kitchen. She also took recycled paper to a machine. She was unable to work after May 2007 and has not returned to any form of employment since.
16 The medical evidence, which I will summarise below, demonstrates that the plaintiff suffered a compensable injury to her right upper limb, and a secondary psychiatric injury. I was informed by Ms Galpin that the defendant conceded that the plaintiff had suffered a compensable injury with respect to both injuries.
The issues
17 The major thrust of the attack made by Ms Galpin upon the plaintiff was directed to the plaintiff’s credit. The attack went so far as to accuse the plaintiff of being deceitful.
18 More particularly, the allegations of deceit were that the plaintiff had not informed medical practitioners either that she had suffered a heart condition during her first pregnancy, and the termination of her second pregnancy, or had underplayed the gravity of the psychological impact upon her of those two matters; that she had been manipulative in her presentation to medical practitioners, for example to Dr Weissman, consultant psychiatrist, in order to obtain a favourable opinion from him, and that she was otherwise not creditworthy nor reliable.
19 For reasons which will become plain below, I am not satisfied that there is a basis upon which such grave allegations can be made, and indeed, should have been made.
The relevant medical evidence
20 Although the compensable injury affecting the plaintiff's right shoulder was no longer being pursued as a serious injury, it is nonetheless relevant to set out the nature and extent of that injury and the medical treatment provided to the plaintiff for the purpose of understanding the context in which psychiatric impairment occurred.
21 The plaintiff first saw Dr Soysa in about January 2007. Dr Soysa provided two medical reports dated 6 July 2009 and 8 September 2009.[4] Unfortunately, they are very brief and somewhat cryptic. It would appear that the plaintiff complained to Dr Soysa that she had suffered an injury to her right shoulder in the course of her employment with the defendant. Dr Soysa referred the plaintiff to have an ultrasound of her right shoulder. According to the radiologist, it demonstrated right subacromial bursitis with an associated bursal impingement, and a suspicion of underlying degenerative change in her right shoulder.[5] Dr Soysa referred the plaintiff to Mr Yim, physiotherapist.
[4]PCB 70-71
[5]PCB 145
22 The plaintiff saw Mr Yim on 24 January 2007. He obtained a history that the plaintiff experienced pain in her right shoulder and arm as a consequence of her work. She presented with complaints of paresthesia and numbness travelling down from her right shoulder into her elbow and into the third, fourth and fifth digits of her right hand. Furthermore, she presented with pain and discomfort in her right subscapular and periscapular region, and also with a “fuzzy” type headache in her forehead.[6]
[6]PCB 35-37
23 Mr Yim provided a diagnosis of what he considered to be the medical condition which was the likely cause of the symptoms complained of by the plaintiff. However, the plaintiff was also referred to Mr Miller, orthopaedic surgeon, whose diagnosis, I think, is preferable to consider in determining the nature and extent of the compensable injury suffered by the plaintiff to her right shoulder.
24 Dr Soysa referred the plaintiff to Mr Miller. The plaintiff saw him in April 2007. Initially, he considered that the plaintiff had suffered an impingement syndrome in her right shoulder. He considered that she required an MRI scan. However, he considered that it should be deferred because at that stage the plaintiff was pregnant.
25 The plaintiff gave birth to her daughter in September 2007. She returned to see Mr Miller, who referred her to have MRI scans which were undertaken on 13 December 2007. Mr Miller interpreted the MRI scans to demonstrate minor degenerative changes in the plaintiff’s neck, and tendinosis in her right shoulder. He was not sure whether the pain complained of by the plaintiff was coming from her neck or her shoulder, but he thought there was a strong element of shoulder pain present.[7]
[7]PCB 48, 52-53 and 57-58
26 Mr Miller advised the plaintiff to have subacromial steroid injections. He gave her one such injection in April 2008 which produced minimal improvement. At that stage, he considered that, on balance, the pain experienced by the plaintiff was referred pain from her neck.[8] He eventually made a diagnosis that the plaintiff was suffering from degenerative disease in her neck and rotator cuff tendinitis. She had a second injection in 2010 with a similar result.[9]
[8]PCB 49
[9]PCB 19 and Transcript 90
27 Mr Miller last saw the plaintiff on 29 April 2013 to undertake a medico-legal assessment. He had previously seen her for treatment on 4 October 2010.[10] In his last report dated 13 October 2010, it would appear he reviewed his previous reports and the relevant radiology. He undertook a physical examination of the plaintiff and concluded that the plaintiff had degenerative disease in her neck with significant ongoing problems, and symptoms in her right shoulder with rotator cuff tendinopathy. He considered that it was difficult to distinguish the pain the plaintiff was experiencing in her neck from the pain she was experiencing in her right shoulder. He believed that the two sources of pain were linked. He considered that the plaintiff’s prognosis was fair to poor.[11]
[10]PCB 58
[11]PCB 59-60
28 Mr Miller was asked to consider the plaintiff’s capacity for work resulting from the impairment of the function of her neck and right shoulder. He considered that she was not fit her pre-injury work duties. He considered that she would have difficulty returning to work which involved repetitive arm actions, the use of her arms above shoulder level, and lifting weights more than 5 kilograms. He then concluded that, given her work experience and limited language skills, it would be difficult for her to return to work.[12]
[12]PCB 61
29 Dr Soysa also referred the plaintiff to Dr Castle, occupational physician. The plaintiff first saw him on 28 February 2007. The plaintiff saw Dr Castle on a further two occasions in 2007 and then in March and April 2008 according to his report dated 21 November 2008. He was aware that the plaintiff had been referred to Mr Miller. He was provided with the MRI scans of the plaintiff’s neck and right shoulder. He diagnosed that the plaintiff was suffering from a right rotator cuff syndrome and right adhesive capsulitis. He considered that the plaintiff was totally unfit for her pre-injury duties, but that she had a residual capacity for alternative employment, and in that respect, he referred to work as an education aide, in the gaming industry, as an information officer, in occupational health and safety and perhaps in some types of quality-control jobs. He added that she would be able to do computer work after obtaining some training.[13]
[13]PCB 38-42
30 It would appear that Dr Castle continued treating the plaintiff after April 2008. No reports were obtained from him for the purpose of this proceeding, but a report addressed to the Accident Compensation Conciliation Service dated 4 November 2011 was included in the Plaintiff’s Court Book. I infer that the report was written by him in his capacity as a treating medical practitioner, although he does not refer to any occasions on which he examined the plaintiff. In a short letter to the insurance agent dated 22 December 2010, he requested that the plaintiff be given funding for hydrotherapy and the continuation of a pool pass. It would appear that he was treating her in December 2010, and therefore, probably into 2011. The plaintiff says that she continues to see Dr Castle.[14] It would appear that she last saw him in 2012.[15]
[14]PCB 22 and 30
[15]Transcript 75
31 The plaintiff stopped seeing Dr Soysa in about 2011. She commenced seeing Dr Adrianakis as her treating general practitioner in about 2011. In his report dated 19 April 2013, he refers to the plaintiff attending the Prime Medical Clinic since 2007. It is the clinic from which he practices. It would appear that Dr Castle also practices from that clinic. However, it would appear from what I am able to gather from the evidence, that the plaintiff saw Dr Soysa until 2011 as a treating general practitioner, and thereafter, Dr Adrianakis.
32 The defendant had the plaintiff examined by a number of specialists to determine the nature and extent of the injury the plaintiff suffered to her neck and right shoulder. I propose to give a very short summary of that evidence, only because I prefer the opinion of Mr Miller.
33 Mr Deacon, orthopaedic surgeon, examined the plaintiff on 9 November 2009. He concluded that the plaintiff had suffered an impingement syndrome with subacromial bursitis and some degenerative changes which were aggravated by her work.[16]
[16]DCB 17-18
34 Mr Battlay, surgeon, examined the plaintiff on 12 July 2010. He considered that the plaintiff had suffered mild subacromial bursitis in her right shoulder with a degree of functional overlay.[17]
[17]DCB 36-37
35 Mr Jones, orthopaedic surgeon, examined the plaintiff on 28 April 2011, 14 November 2012 and 26 June 2013. He considered that the plaintiff had suffered from a mild rotator cuff syndrome. It is very apparent that Mr Jones considered that the work relationship had resolved, or was at least minimal, and that there were psychological or psychiatric factors contributing to the plaintiff's presentation.[18]
[18]DCB 56-57, 96-97 and 102-104
36 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 20 January 2012. He considered that the plaintiff was suffering from cervical spondylitis, right outflow brachialgia and right rotator cuff degenerative changes of a mild to moderate degree which were age-related and constitutional, but which had been aggravated and rendered symptomatic by her work with the defendant.[19]
[19]DCB 106
37 Apart from Mr Battlay and Mr Jones, the preponderance of the medical evidence obtained by the defendant is, broadly speaking, consistent with the opinion of Mr Miller. It is for that reason that I prefer the opinion of Mr Miller, and otherwise, because he treated the plaintiff and is therefore in a particularly sound position to comment on the nature and extent of the injuries to the plaintiff's neck and right shoulder.[20]
[20]The plaintiff was examined by Dr Horsley, occupational physician, on 28 March 2011 and 20 June 2012 (PCB 114-127). The plaintiff was examined by Dr Yong, occupational physician, on 20 May 2013 at the request of the defendant (DCB 147-155). Neither Mr Fitzpatrick nor Ms Galpin referred me to those reports. They appear to me to be largely irrelevant because the opinions of Dr Horsley and Dr Yong are principally directed to the plaintiff’s physical injuries and her capacity to undertake suitable employment. They appear to me to add little to the claim brought under paragraph (c).
The psychiatric impairment
38 Dr Soysa made no reference in any of her medical reports to when the plaintiff began to demonstrate the onset of a psychiatric impairment. Dr Castle made reference to it in his report addressed to the Accident Compensation Conciliation Service.
39 The plaintiff said that she had undergone treatment, and in particular, two injections, which left her with the hope that she would improve and be able to return to the workforce. It is clear from a reading of the plaintiff’s affidavits and the reports of her treating medical practitioners that she also had treatment by the prescription of medication, hydrotherapy, physiotherapy and counselling. The effect of the plaintiff’s evidence was that after the second injection, she began experiencing depression, because the hope she had of obtaining relief sufficient for her to return to the workforce was not likely to occur.[21]
[21]Transcript 92-94
40 The plaintiff was subsequently referred to Dr Congiu, psychiatrist. He provided a report dated 21 March 2013. It would appear that the plaintiff first saw him on 29 March 2011.[22] I should pause here to address the submission made by Ms Galpin that there is more than a coincidence in the plaintiff seeking psychiatric treatment with the commencement of her serious injury application. It was first put to her that she asked for the referral to a psychiatrist, and that the referral was requested to gain support for her serious injury application.[23] I will return to that cross-examination, and the other lines of attack upon the plaintiff’s creditworthiness and reliability later in these reasons.
[22]Transcript 79
[23]Transcript 79-80
41 Dr Congiu has treated the plaintiff about monthly since she first saw him. In his report dated 21 March 2013, he said that he last saw the plaintiff – that is before the preparation of the report – on 7 March 2013. I propose to set out some parts of his opinion in order to deal with the nature of the attack made upon the plaintiff’s creditworthiness and reliability. Firstly, Dr Congiu provided the following diagnosis:
“I formed the opinion that, from the psychiatric point of view, Mrs Tekeleyohannes was suffering from an Adjustment Disorder with significant symptoms of Anxiety and depression. In addition she was suffering from a Chronic Pain Syndrome which had responded poorly to a variety of treatments.”[24]
[24]PCB 111
42 Secondly, Dr Congiu added the following when dealing with causation:
“In summary Mrs T[ekeleyohannes] suffers from a combination of physical and psychological symptoms. I’ve confined myself and to the management of psychological symptoms. The DSM 4 diagnosis applicable in this situation is Adjustment disorder with symptoms of both anxiety and depression. The psychiatric illness has developed in association with the physical injuries and is directly related to the work injury.”[25]
(sic)
[25]PCB 113
43 Lastly, Dr Congiu considered that from the psychiatric point of view, the plaintiff’s prognosis was guarded and would depend on whether her pain and disability could be reduced. He considered that she would continue to need psychiatric treatment for at least the next eighteen months, and at the time when he wrote the report, he considered that she was totally incapacitated for work and would remain so for the foreseeable future.[26]
[26]PCB 113
44 Dr Congiu treated the plaintiff by prescribing an antidepressant known as Mirtazapine at a dosage of 60 milligrams daily. In addition to that medication, the plaintiff is in receipt of prescriptions for Avanza and Panadeine Forte, and she also takes Aspirin.[27] I understand that Avanza is prescribed for depression and anxiety. It would appear from the text of Dr Castle’s reports that the plaintiff was also referred to psychological counselling.
[27]Transcript 68
The other psychiatric evidence
45 The first psychiatrist who examined the plaintiff was Dr Cole. He examined the plaintiff on 23 July 2009. He considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that her state of mind was such that she was rather more aware and preoccupied by her pain and limitations than might otherwise be the case, but, in his opinion, there was no suggestion of symptom exaggeration at either a conscious or unconscious level.[28]
[28]DCB 6-7
46 The onset of the plaintiff’s psychiatric impairment, as observed by Dr Cole, occurred after the plaintiff had the first injection and before she had the second injection. It seems to me to be consistent with the plaintiff’s evidence that she was losing hope that she would recover from the disabling nature of the injuries she had suffered to her neck and right shoulder. This diagnosis is inconsistent with the attack made upon the plaintiff that her psychiatric impairment is contrived.
47 Dr Weissman was the subject of a withering attack by Ms Galpin. She submitted that the opinions he has expressed in his reports should be ignored in preference for the opinion of Dr Kornan because the plaintiff is manipulative and was in some way able to seduce and beguile Dr Weissman to such a degree that he has, in effect, done her bidding by providing support for her case. This attack was undertaken in the face of defendant’s entitlement to cross-examine Dr Weissman.
48 I do not think an attack of that kind should be made. Whilst it is an attack upon the plaintiff, it is also an attack upon Dr Weissman’s capacity to determine whether what he was informed of by the plaintiff is essentially true, and that his psychiatric examination of the plaintiff is accurate. It rather paints Dr Weissman as being capable of being fooled. I think these are matters which should have been put to him. The plaintiff denied that she behaved in the manner suggested. I accept her evidence in that respect.
49 I have carefully read the three reports provided by Dr Weissman following his examinations of the plaintiff on 22 September 2011, 15 June 2012 and 15 May 2013.[29] I do not propose to set out much of the detail of the history he obtained, the product of his psychiatric examinations and the opinion he expressed, because I cannot see any failings in his methodology which are suggestive of any serious fractures which could lead me to conclude that his opinion is unreliable. It seems to me that what is at the heart of the attack made by Ms Galpin is the alleged manipulation by the plaintiff of Dr Weissman to suit her purpose in gaining support for her case. As I have earlier observed, I reject that notion altogether.
[29]PCB 75-108
50 In his last report, Dr Weissman appears to me to have gone over the same material which he canvassed in his two previous examinations. Importantly, he was provided with the report of Dr Congiu, the last report of Mr Miller and the plaintiff’s first affidavit. There are essentially three matters which I have drawn from his reports, and in particular, his last report. Firstly, he was of the opinion that the plaintiff will benefit from a combination of antidepressants. Secondly, the plaintiff was suffering from at least a moderately severe, if not severe, work-related psychiatric condition which he describes thus:
“… Severe depressed mood; sadness; tearfulness; distress; guilt; hopelessness; self blame; anhedonia; social withdrawal; cognitive dysfunction; psycho motor retardation; loss of self-esteem and confidence; diminished interests, energy and motivation; sleep disturbance and weight loss; as well as Chronic Pain Disorder symptoms and features … .”[30]
[30]PCB 107
51 Thirdly, immediately following his reference to the foregoing, he added that he considered that the plaintiff was totally and permanently incapacitated for all work which included her pre-injury duties and suitable alternative duties, for the foreseeable future. He added that any incapacity from her physical injuries would further reinforce and entrench the psychiatric incapacity for work.[31]
[31]PCB 107-108
52 It is a strongly worded opinion, but it appears to me to be consistent with the opinion of Dr Congiu.
53 Furthermore, the defendant had the plaintiff examined by Dr Jager, psychiatrist. He examined her on 7 September 2010 and 9 August 2012. He was of the opinion that the plaintiff had suffered a Major Depressive Disorder. He considered that the plaintiff’s background as a refugee and a migrant, being a sole parent, and her work with the defendant, contributed to her psychiatric impairment. In a report dated 21 March 2011, he observed that if the plaintiff’s physical injury was still related to her employment, then so, too, would the Major Depressive Disorder. He was of the opinion that the plaintiff was unfit for her pre-injury employment, but that she had a partial capacity to return to work.[32]
[32]DCB 51
54 I should pause here to recount some of the cross-examination conducted by Ms Galpin.
55 The plaintiff suffered a heart condition during her first pregnancy. She came under the care of Professor Harper, cardiologist. He concluded that she had developed a defect in her mitral valve, which he considered to be suitable for a percutaneous valvuloplasty. It was his plan to manage her through her pregnancy.
56 The plaintiff was admitted to what she described as the Medihotel attached to the Monash Medical Centre, where she was an inpatient while her pregnancy was managed.[33] The plaintiff said that she had surgery in July 2007 to repair a heart defect.[34] However, Professor Harper reviewed the plaintiff on 17 December 2007 after her child was born. He does not refer to the plaintiff undergoing surgery, but some of the histories in other reports refer to the plaintiff having some form of surgery in July 2007 which involved the insertion of a plastic valve into her heart.
[33]Transcript 27
[34]Transcript 31
57 The next matter that I need to refer to is the plaintiff’s second pregnancy. The plaintiff said that the foetus was abnormal in some way. She was advised to have a termination, which was undertaken in January 2009 when the foetus was thirty weeks.[35]
[35]Transcript 45-46
58 Ms Galpin cross-examined the plaintiff regarding the heart problem and the termination of pregnancy and that both would have provoked at least an emotional reaction, if not a psychiatric reaction. Furthermore, Ms Galpin cross-examined the plaintiff that she had not informed the psychiatrists who both treated her and who saw her on a medico-legal basis of the extent to which she was emotionally disturbed by each of those matters. It was not my impression that the plaintiff agreed with the propositions put to her in that regard. It was my impression that the plaintiff was troubled by the heart problem and the termination, but to put it any higher is not supported by the plaintiff’s evidence, nor any other evidence.
59 Some of the examining medical practitioners were told of the plaintiff’s heart problems. Dr Kornan was aware of both. Dr Kornan examined the plaintiff on 20 February 2012 and 25 June 2013. It would appear that he was provided with a significant amount of supporting material in order for him to understand the plaintiff’s background both before and subsequent to her suffering injury. He was of the opinion that the psychiatric condition which he observed in the plaintiff did not support a diagnosis of a serious psychological or psychiatric condition. He considered, at best, that the plaintiff had suffered a mild Adjustment Disorder with mild Anxiety and Depression which did not incapacitate her for work.[36]
[36]DCB 123
Findings
60 I reject the proposition that I should find that the plaintiff has been deceitful, and otherwise that she is not creditworthy or reliable. There are many reasons why I have made that finding.
61 Firstly, the plaintiff had a very good working record between the commencement of her working life in Australia and the onset of the injury to her neck and right shoulder. She worked in full-time employment between 1998 and November 2006 when the injury to her neck and right shoulder became troublesome for her. Her working history is a demonstration of her integrity as a worker and her motivation to secure employment and maintain a connection with it.
62 Secondly, the plaintiff’s treating medical practitioners do not appear to have any doubt that the plaintiff did suffer an injury to her neck and right shoulder. Although the reports of Dr Soysa are not overly edifying and are cryptic, inherent in the flavour of her reports is an opinion that the plaintiff did suffer injuries to her neck and right shoulder. If there was any doubt about the nature and extent of those injuries, they appear to me to be completely scotched by the opinions of Dr Castle and Mr Miller, who had no doubt that the plaintiff had suffered a compensable injury. In the case of Mr Miller, he considered that the plaintiff’s injuries required invasive treatment by way of injections.
63 There is support for the opinion of Mr Miller regarding the nature and extent of the injuries to the plaintiff’s neck and right shoulder in the opinions of Mr Deacon and Mr Kudelka, and to a lesser extent, in the opinions of Mr Battlay and Mr Jones. It seems to me that the preponderance of evidence overall points to the plaintiff having suffered injuries to her neck and right shoulder. I accept the evidence of Mr Miller that the symptoms experienced by the plaintiff which were reported to him by her are related to those injuries.
64 Thirdly, I do not accept that the plaintiff contrived a psychiatric impairment to support her case. That is without support in the evidence. Dr Cole made a diagnosis of a psychiatric impairment at an early stage, and before the plaintiff commenced this proceeding. In any event, I accept the plaintiff’s evidence that when she understood that there was no treatment which could be provided to her benefit, that her psychiatric impairment became more florid and overtook her. Otherwise, it is difficult for me to accept that Dr Congiu was in some way duped by the plaintiff. I find it difficult to accept that Dr Weissman and Dr Jager were likewise duped. Although Dr Kornan is far less accepting of the plaintiff’s psychiatric injury as amounting to a psychiatric impairment which has incapacitated her, he nonetheless accepted that she has psychiatric symptoms which may well amount to a diagnosable disorder.
65 I prefer the opinions of Dr Cole, Dr Congiu, Dr Weissman and Dr Jager to that of Dr Kornan. It seems to me that the preponderance of the psychiatric evidence points to the plaintiff having developed a psychiatric impairment which is causally connected to the onset of the injuries she suffered to her neck and right shoulder and which are disabling and incapacitate the plaintiff for her pre-injury work, and for any suitable employment given each of the matters which I must consider in s5(1) in the definition of “suitable employment”.
66 Fourthly, I have examined the evidence of the plaintiff in detail in the context of the evidence of the treating and medico-legal medical practitioners. It seems to me that there is an internal consistency when I have synthesised that evidence. I have already referred to that in part in paragraphs 62 to 65 above. It seems to me entirely plausible that the plaintiff suffered injuries to her neck and right shoulder and subsequently, suffered a secondary psychiatric impairment which has overpowered her. I see nothing in the plaintiff’s evidence which renders her lacking creditworthiness or reliability.
Consequences
67 I propose to turn to the question of loss of earning capacity first. Having considered all of the evidence, I have reached the conclusion that the plaintiff is incapacitated for her pre-injury work by reason of her psychiatric impairment, and has no practical capacity for “suitable work” as defined.
68 My analysis of the plaintiff’s evidence, and that of the medical practitioners whose evidence I prefer, demonstrates clearly that I reject the submissions made by Ms Galpin in whole. I prefer the evidence of the plaintiff and the medical practitioners whose evidence I have analysed in paragraphs 65 to 66 above. That evidence, in my view, clearly demonstrates that the plaintiff has been overpowered by the psychiatric impairment to the extent that she is not only incapacitated for her pre-injury work, but for suitable employment for the foreseeable future. That resonates in the opinions of Dr Congiu and Dr Weissman and is supported to a reasonable level by the opinion of Dr Jager.
69 In the end, I am satisfied that the plaintiff has suffered the psychiatric injury diagnosed by Dr Congiu and Dr Weissman which amounts to a permanent severe mental or permanent severe behavioural disturbance or disorder. I am also satisfied that the degree of impairment is severe because of the plaintiff’s evidence of how it has overpowered her and the opinions of Dr Congiu and Dr Weissman, and I am also satisfied that the impairment is permanent; that is, for the foreseeable future.
70 In line with Advanced Wire & Cable Pty Ltd[37] a finding that the loss of earning capacity consequences meet the statutory test does not require me to separately consider the pain and suffering consequences contended for by the plaintiff.
[37]Supra
71 I should lastly address one other submission made by Ms Galpin that I need to engage in disentangling, because some of the examining medical practitioners have referred to the plaintiff suffering an impairment resulting from the physical injuries and impairment resulting from the psychiatric injury which both contribute to the consequences for which he contends as being caused solely by the psychiatric injury.
72 I do not consider there is any merit in that submission. It is abundantly clear to me that once the plaintiff’s psychiatric injury emerged, it was clearly identified by Dr Cole, and then by Dr Congiu, and then subsequently, by Dr Weissman and Dr Jager. I am able to discern very clearly what impairment consequences flowed from the psychiatric injury as opposed to the physical injury. I have not combined the two in reaching the conclusions referred to above.
Conclusion
73 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
74 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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