Tercan v Flight Centre Limited

[2013] VCC 512

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-10-03476

BIRGUL TERCAN	Plaintiff
v
FLIGHT CENTRE LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 22 October 2012 and 1 November 2012
DATE OF JUDGMENT:	14 May 2013
CASE MAY BE CITED AS:	Tercan v Flight Centre Limited
MEDIUM NEUTRAL CITATION:	[2013] VCC 512

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:  Serious injury – paragraph (c) of serious injury – permanent severe mental or permanent severe behavioural disturbance or disorder – nature of such condition – whether such condition is “permanent”
Legislation Cited: Accident Compensation Act 1985; Justice Legislation Amendment (Miscellaneous) Act 2012

Cases Cited: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Sabo v George Weston Foods [2009] VSCA 242; Church v Echuca Regional Health (2008) 20 VR 566; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60

Judgment:     Judgment for the plaintiff to commence common law proceedings for “pain and suffering damages”.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Riordan	Zaparas Lawyers
For the Defendant	Ms D Manova	Herbert Geer

HIS HONOUR:

1 By way of Originating Motion issued on 9 August 2010, Mrs Birgul Tercan (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for personal injuries arising out of or in the course of her employment with Flight Centre Limited (“the defendant”). 

2       It is alleged by the plaintiff that on 30 May 2008, during the course of her employment with the defendant, a roller door which she opened fell back down onto her head, causing neck pain which required some treatment.  It is further alleged that over time, in part because of the pain, and in part what she perceived to be her treatment by the defendant, the plaintiff developed depression and anxiety (“the injury”).

3       The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of the injury.

4       The plaintiff, her general practitioner, Dr Baglar, and her treating psychiatrist, Dr James Leahey, gave evidence and were cross-examined.  Both parties tendered various documents.[1]

[1]See Annexure A

Relevant Legal Principles

5       The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act.

6       The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. 

7       That paragraph reads:

“ … serious injury means—

(a)    …

(b)    …

(c)    permanent severe mental or permanent severe behavioural disturbance or disorder …”

8       The mental behavioural disturbance or disorder for the purposes of paragraph (c) is described variously as Adjustment Disorder, reactive Depression and Anxiety.

9       In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)“the injury” suffered by her arose out of or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[3]

(b)“the injury” and the resulting mental behavioural disturbance or disorder must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(c)the consequences to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “pecuniary loss” must be “severe” – that is, when judged by comparison with other cases in the range of possible mental or behavioural disorders, as the case may be, be fairly described as being more than “serious” to the extent of being “severe”.[5] 

The test for “severe” as set out in paragraphs (b) and (d) of s134AB(38) of the Act is sometimes referred to as “the narrative test”.

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at paragraph [11]

[4]See Barwon Spinners Pty Ltd v Podolak (op cit) at paragraph [33]

[5]See s134AB(38)(b) and (d) of the Act

10      In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:

(a)that as at the date of hearing, a loss of earning capacity of forty per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7] and

(b)that after the date of hearing, the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]

[6]See s134AB(19)(b) and (38)(e) of the Act

[7]See s134AB(38)(e)(i) of the Act

[8]See s134AB(38)(e)(ii) of the Act

11      In determining the application, the Court:

(a)must make the assessment of serious injury at the time the application is heard;[9]

(b)notes that it has been observed that the question of whether any injury satisfied the definition of “serious injury” is largely a question of impression and value judgment;[10]

(c)must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]

(d)notes that s134AB(38)(b) provides that the consequence of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.  In the event that a worker satisfied sub-paragraph (1) but not sub-paragraph (2) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” only.  A worker who satisfies the loss of earning capacity requirements of s134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[12]

[9]See s134AB(38)(j) of the Act

[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]

[11]See s134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92]; the Justice Legislation Amendment (Miscellaneous) Act 2012 (Act 68/2012) repealed s134AE, with the repeal coming into operation on 1 January 2013

[12]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454

The Issues

12      Both parties gave written submissions.  In essence, the defendant submits:

(a)   That any “psychiatric injury” resulting from the incident suffered by the plaintiff on 30 My 2008 should be construed in the context that such “injury” is an aggravation of a pre-existing psychiatric condition;

(b)   In such circumstances, the plaintiff fails in discharging her onus to establish that the extent of the “aggravation” can be characterised as “severe” within the meaning of the Act;

(c)   In any event, the plaintiff has failed to discharge her onus in establishing that the extent of the “aggravation” of the pre-existing psychiatric condition is “permanent”;

(d)   Furthermore, in relation to loss of earning capacity, the plaintiff fails to discharge her onus in establishing that as a consequence of such “aggravation” she has suffered a loss of earning capacity of forty per cent or more in accordance with s134AB(38)(f) and will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of forty per cent or more;

(e)   The plaintiff also fails because she has not discharged her onus in establishing that after rehabilitation or re-training, she would have no capacity for alternative employment.

The Evidence of the Plaintiff

13      The plaintiff gave evidence that her affidavits sworn on 19 March 2010[13] and on 26 September 2012[14] are “correct”.[15]

[13]Exhibit 1 at page 7 PCB

[14]Exhibit 1 at page 19 PCB

[15]T9, L9-12

14      By way of her first affidavit, the plaintiff gave the following pertinent evidence:

·        She is a thirty-five-year-old (born in March 1978) married woman who had twelve years of schooling.

·        Prior to her employment with the defendant, she had the following employment history:

–     at the age of fifteen, she worked for Coles for about six months.

–     she then worked in her brother’s kebab shop in St Albans for two years when undergoing her VCE.

–     she then did a one-year business marketing course at Kangan TAFE.

–     she then worked in her brother’s kebab shop in St Albans for two years and thereafter at the Thomastown kebab shop for about a year.

–     she then worked at Cutco (which imported kitchen utensils) as a sales representative for about three months.

–     she then worked as a telemarketer with the Victorian Railways system during the day for about six months and during the same period, at a mortgage centre as a telemarketer in the evening.

–     she then worked for Sakata Rice Snacks in Laverton as a process worker for about one year.

–     in 2000, she purchased her own kebab house in Thomastown which she ran as a business for six years, before handing it on to her brother.

–     she then worked for 1300 Easy-Dial as a sales representative and administrative officer for about a year.

–     she commenced employment with the defendant on 7 January 2008, after which she was given four weeks’ training and then placed at the Barkly Square Shopping Centre, Brunswick, to work as a travel consultant.

·        Prior to her commencement with the defendant, the plaintiff had experienced problems with period pain and heli-bacteria over the years.  She had previously undergone a laparoscopy and gastroscopy to investigate these problems.  Furthermore, she had experienced hay fever since a girl and had undergone a sinus operation in about 2002.  In 2003, she woke up one morning with a very bad headache, and her husband conveyed her to the Northern Hospital at Epping (“the Hospital”) where she underwent a CT scan of the brain, which revealed no obvious cause for the headache.

·        On 30 May 2008, a roll-a-door at the front of the office of the defendant descended and struck her across the top of her head.  In particular, the plaintiff describes the incident in the following terms:

“The door had a spring mechanism such that it was pushed up about a metre from the ground it would roll itself up.  I lifted the door up and it then wound itself up above head height.  I bent down and picked up my Coles bag with a handbag on my left shoulder and started to straighten up and move into the office.  As I did this I was hit on the head by the edge of the roller door which fell down across the top of my head.  This was a great shock and I felt dazed.”[16]

[16]See Exhibit 1 at page 9 PCB

·She attended a morning meeting of the defendant and worked on during the day but developed increasing headache and some nausea.  Because of ongoing difficulties in the afternoon, she asked her manager, Kim Salter, if she could see a doctor, and she subsequently attended Dr Ramsey at the Lotus Medical Centre, who gave her a certificate for a day off work.

·She attended a work function after work for a short time and then met some girlfriends at a restaurant, which had been previously planned.  During that period of time, she was becoming more nauseous.

·When arriving home that night, she slept for about an hour, after which she vomited and her husband conveyed her to the Hospital, where she was given an injection and discharged home the following morning.

·She slept most of the following day and evening and experienced a painful neck and headache, with pain spreading into her arms, worse on the left side.

·She re-attended the Hospital on 1 June 2008 and was admitted overnight, during which time she was given a cervical collar and underwent a CT scan of her brain and cervical spine and an x‑ray of her thoracic spine.  The following day she had an MRI scan of her cervical spine.

·She describes that her whole head felt numb and she had a pins and needles feeling in her left arm.

·She attended her long-term general practitioner, Dr Baglar, on 3 June 2008 and he prescribed further time off work and physiotherapy, which she undertook with Ms Huong Nguyen two to three times a week until October 2008, and thereafter once a week until about June 2009, when she went overseas.

·She returned to work on 10 June 2008, working three days a week for four hours, and on 20 June 2008, her hours were increased to three days a week, six hours a day.  During this period of time, she had ongoing headaches and a stiff and painful neck, with discomfort spreading into her left shoulder and arm. 

·Dr Baglar arranged for a further CT scan of her brain on 1 July 2008 and a blood test on 10 July 2008.  She believed she may have been off work for about two weeks at that time.

·She was referred by the defendant to IPAR Rehabilitation, who encouraged her to increase her hours of work and provided her with ongoing return to work plans.

·In about July 2008, Dr Baglar referred her to the neurosurgeon, Mr Bittar, who examined the plaintiff on 28 August 2008. 

·She resumed full-time work with the defendant in October 2008 with restrictions on lifting.  She continued to have difficulties with headaches and concentration and was unable to produce the sales figures that she had prior to the injury.  She believed she was becoming increasingly tense, irritable and anxious.

·In or about December 2008, Dr Baglar referred her to the general surgeon, Mr David Butterfield, who performed a colonoscopy and gastroscopy on 23 December 2008, as well as arranging for a CT scan to be undertaken of her abdomen and pelvis.  She notes that Mr Butterfield could not find any obvious cause for her problems and suggested it may be due to “shingles”.

·Because of increasing neck pain and headaches in January 2009, Dr Baglar referred her to a psychologist, Ms Semra Urmaz, who initially saw the plaintiff on 6 February 2009 and continued to see the plaintiff until December 2009, when WorkCover ceased paying for this type of treatment.

·Because of worsening neck pain and headaches, she was forced to cease work with the defendant on 10 February 2009.

·Dr Baglar referred her back to Mr Bittar, who consulted with her on 10 March 2009, and she was also referred to the rehabilitation specialist, Dr Clayton Thomas, who examined her on 16 March 2009.

·Dr Baglar also referred her to a psychiatrist, Dr James Leahey, who initially consulted with the plaintiff on 23 April 2009 and she has continued to see Dr Leahey initially weekly for a few months, and then fortnightly.

·She was assessed at the Dorset Rehabilitation Centre for a rehabilitation program on 14 May 2009 but there were delays in obtaining approval for the course.

·On 4 June 2009, she travelled to Turkey with her husband, which she thought might make her “feel better”, and she also saw a sick relative, who died in August 2009.  When in Turkey, she consulted a doctor, who arranged various scans of her head, neck and abdomen, but could not advise as to what was wrong.

·In September 2009, after returning home from Turkey, she was driving home from an appointment with Dr Kennedy – a WorkCover psychologist – and felt angry, because she considered that Dr Kennedy did not understand what was wrong with her.  When driving over the Bolte Bridge, she began to feel very hot and had difficulties with breathing and could not swallow.  Her left arm went numb and then her left leg, and she rang her husband on the car phone and he later picked her up and took her to The Royal Melbourne Hospital, where she was given an ECG and oxygen.  She was told that she had probably suffered a panic attack.

·She commenced a rehabilitation course at the Dorset Rehabilitation Centre on 7 October 2009 and attended twice a week for about six hours a day.  She performed exercises, underwent hydrotherapy, occupational therapy and counselling.  The course lasted for about two months.

·On 12 December 2009, she felt “very strange”, had trouble breathing and made threats to her husband.  She was taken to the Hospital by her husband, where she was assessed by the CAT Team, prescribed Temazepam to sleep and told to go home and consult her psychiatrist.

·On 19 December 2009, she had worsening abdominal pain and her husband again took her to the Hospital, where she was found to have an internal cyst, and the pain improved after a few hours.

·On 28 December 2009, she attended the Mill Park 24-hour Clinic with further abdominal pain, after which she attended the Hospital, and later she returned to the Mill Park Medical Centre and was given an H2 blocker.

·She continues to see her general practitioner, Dr Baglar, at least once a month, and her psychiatrist, Dr James Leahey, fortnightly.  She takes 150 milligrams of Lyrica every night and Panadeine Forte about three times a week for pain relief in relation to her neck.  She also takes Mobic, an anti-inflammatory, every night, and Temazepam most nights to help her sleep.  She has also been prescribed Alepam and Xanax for her nerves, and medication for her stomach.

·She has pain in her neck which seems to spread to her left shoulder and to the back of her head.  She experiences a “tight and aching feeling” all the time.  She also experiences intermittent dizziness, usually first thing in the morning, and an intermittent feeling of pain and weakness in her arms, much worse on the left side.

·She also gets pains in her chest and has difficulties breathing and is aware of this problem several times every day – although the problem does ultimately go away.  Several times a week however, she has difficulty with breathing to a point where she feels she is shaking in the top half of her body.  Such an experience usually lasts from about twenty minutes to about an hour.

·On 28 January 2009, she went to the Australian Open Tennis Tournament with her friend but could only last there for an hour before she had to go home because of the noise.  She felt “tired and claustrophobic”.

·She also continues to have a stomach upset, which requires ongoing medication, and feels nauseous at times.

·Since her neck injury she has difficulty concentrating and has difficulties following conversations.  She also has a sense of urgency that something needs to be done all the time.

·She is more irritable and easily upset since her neck injury and feels angry towards her employer and being struck by the roller door.

·When sitting she prefers to lean onto her right and take more of her weight on that side, which seems to lessen the pressure on the left side of her neck.  However, any sitting position is uncomfortable after about twenty minutes.

·When driving, she sometimes feels “claustrophobic” and is uncomfortable as a passenger.

·She has difficulty going to sleep and tries to sleep without the Temazepam, as she is anxious to limit the medication she takes.

·She does most of the housework at home but has to take breaks.  Her husband takes the washing out to the line since it is too “physically demanding” for her.

·She only cooks two to three times a week now because she does not “feel like it” and she and her husband get a lot more take-away food.

·Prior to her neck injury, she used to play for an indoor soccer team on Tuesday evening and sometimes on Sunday at the Thomastown Sports Centre.  In or about 2009, with encouragement from the rehabilitation centre, she tried out in her old side for a few minutes but had to stop because of increasing neck pain.  She believed she felt a lack of some co-ordination.

·She used to go fishing with her husband once or twice a year but could not do this now because casting would be too painful, and since the neck injury, she has lost a lot of interest in sex because virtually every sexual contact increases her neck pain.  She does not enjoy the company of others and even her husband irritates her at times.

·At the time that she suffered the neck injury, she was earning approximately $770 gross per week with the defendant.

15      By way of her second affidavit, the plaintiff gave the following pertinent evidence:

·She continues to see her general practitioner, Dr Baglar, several times a month, and sees her psychiatrist, Dr James Leahey, about once a month.

·On 1 March 2011, she went to an iridologist, Mr Wilson, to seek natural healing remedies to improve her stress.  However, such a treatment did not give her any improvement.

·Since swearing her first affidavit, the pain has spread down her shoulder blades and then into her low back.  The pain in her neck is intermittent.  Her neck and back pain has made sleeping very difficult.

·In the first week of September 2010, she found out she was pregnant and stopped all medication except for Alepam.  She miscarried on 27 October 2010.

·After the miscarriage, she was taking Temazepam and Alepam, and in December 2010, such drug was ceased two weeks later, when she found she was again pregnant, and she was prescribed Lexapro during this period.  On 5 October 2011, she gave birth to a son.

·She believes she was followed by an investigator on 27 October 2010 before her miscarriage and was “very stressed”.

·On 20 January 2011, she went to bed early and suddenly woke up and her heart was racing.  She rang Nurses on Call and ultimately attended the Emergency Department at the Hospital, where she underwent an ECG test.  She was told she had “anxiety”.

·After the occurrence of her neck injury, she was contacted by IPAR Rehabilitation and that organisation put her on a program to see a psychologist in Epping every fortnight to assist her to find work.  She underwent personality tests and it was suggested that she look for work doing bookkeeping, florist work and office management.  She did not believe she could do these jobs because of her injury and her difficulties concentrating.

·She was enrolled in a bookkeeping course with NMIT at the Preston Campus, to commence in late July 2010.  Because of insufficient enrolments, her course was deferred to October 2010, but then WorkCover could not provide the funds.

·She continues to have chest pain and breathing difficulties at times but has learnt now how to control any breathing difficulties using exercises.  She feels lightheaded and dizzy in the morning and has to be careful with initial movements.  She continues to have periods where her upper body shakes, which occurs about twice a week, when she feels more stressed.

·Her relationship with her husband has been up and down since her injury and at times she considers that he has been “cheating on me”.  She feels insecure about her future and frightened about her ability to look after the baby.

16      The plaintiff also relies on an affidavit of her husband, Onur Koken, sworn 26 September 2012.[17]  In such affidavit, he gives the following pertinent evidence:

[17]at pages 23-25 PCB

·        When he married the plaintiff on 20 July 2001, she did not change her name because she was running a kebab shop at that time.

·        Prior to her “neck injury”, she was always a very energetic person, worked long hours in the kebab shop and was driven to improve herself and was full of ideas.

·        After her neck injury, his wife attempted to go back to work after a few weeks but was “obviously not well”.  She complained about ongoing neck pain and headaches and she worked on and off until February 2009, when she had to stop.

·        Since her injury, she has gradually become more irritable, particularly after she had to stop work.

·        In December 2009, he woke up and found her trying to “strangle me”.  He describes her as very agitated and he drove her to the Hospital, where she was assessed by a CAT Team and was told to see her psychiatrist.

·        When she found out she was pregnant in September 2010, she seemed to “improve” but such improvement only lasted a few weeks and was gone by the time she miscarried.

·        Her mood has become better with the birth of their son on 5 October 2011.

17      The plaintiff also relies on an affidavit of her sister, Nigrul Tercan, sworn on 26 September 2012.[18]

[18]See Exhibit 1 at pages 26-27 PCB

18      In that affidavit, Nigrul Tercan describes herself as a younger sister of the plaintiff, with the plaintiff being ten years old than her.  In particular, she describes that prior to the injury, she always thought of her sister as a “very competent and independent type of person” but since the injury, she seems to have lost a lot of self confidence, seems more irritable and less patient.

19      She plays with the Spice Girls Indoor Soccer Team but has not seen her sister play since the occurrence of the injury.  When she sees her sister, she seems to be “obviously in discomfort”, moves slowly and carefully.  She hesitates to “hug her” because this would cause too much pain and she pulls away if she tries to do this.

20      Under cross-examination, the plaintiff gave the following pertinent evidence:

·        Prior to 30 May 2008, she had had problems with “period pain” and a helicobacteria gastric condition.  Such problems manifested themselves in abdominal pains, stomach cramps and sometimes nausea.

·        The period pain problem resulted in her undergoing a laparoscopy in 1999.

·        The period pain was only controlled by a birth control pill and occasionally a Pethidine injection.

·        When she took the birth control pill, her period symptoms subsided and from about 2007 or 2008, the gastric problem was controlled with medication such as Zantac.

·        She commenced work with the defendant in January 2008 and worked full time up until 30 May 2008, when she had the work incident.  She had a few days off work and then returned back to work on three days a week, four hours a day, and after about two weeks this was increased.

·        In October 2008, she was working full-time hours.  In particular, she gave the following evidence:

HIS HONOUR

Q:“And doing the same – when you’re coming back to work, as counsel has put to you, initially three days by four hours by - for a couple of weeks, it has increased over that time.  Since then, up to when you stopped work, were you doing your normal duties?---

A:No.

Q:What were you doing?---

A:I had restrictions of modified duties, no heavy lifting, no prolonged sitting, I had breaks.

Q:But essentially were you dealing with the public at that time?---

A:Most of the time.

Q:I must admit, I am very familiar with Flight Centres.  I use them a lot.  So you would be one of the people behind the desk?----

A:Yes.

Q:Serving the public?----

A:Yes.

Q:But the change in your duties were that you walked around a bit and perhaps – and obviously reduced hours, at least initially?---

A:It was more to follow up on the clients, because in four hours you can’t really get much done.”[19]

[19]T16, L27 – T17, L11

·        She continued full-time work from October 2008 until February 2009, although she had to leave work on occasion to attend physiotherapy appointments.  During the time that she was working full time from October 2008 to February 2009, she was working with clients selling tickets, making airline bookings and selling holidays.

·        She underwent rhinosurgery to her nose in about either 2002 or 2003 in order to control her hay fever and sinus problems.

·        Since 30 May 2008, she has undertaken three overseas trips:  one to Turkey in June-July 2009, one to Japan in February 2010 and one “just recently” with her son to Turkey for seven weeks.

·        In relation to the trip undertaken in 2009, she attended Singapore, Munich, Hong Kong and London during a holiday to Turkey.  She was away from early June 2009 to early September 2009.

·        She accepted that on her return from such trip, she told her treating psychiatrist, Dr Leahey, that she was feeling “quite a bit better” and ready to put everything behind her.  She stayed in Japan in February 2010 for about ten days.  She had travelled to Japan with her husband and another couple and although initially a sightseeing holiday, she experienced abdominal pain and a lot of shaking and not feeling well.

·        In June and July 2012, she attended Turkey for about seven to eight weeks in order to take her son to his grandfather who lives in Turkey.  At that time, her son had just turned one.  She returned to Australia on 24 or 25 July 2012.

·        She has also attended interstate, travelling to Queensland in January 2009 for Christmas holidays, travelling to Sydney with her husband for a few days for a holiday and in January 2012, attended at Sorrento in Victoria where she tried some jet skiing.  When performing the jet skiing, a wave hit her and she jolted her neck.

·        Prior to 30 May 2008, she had attended hospital for stomach pains and the like “numerous times”.  When put to her that over the period from 21 January 1998 to 30 May 2008 (a period of ten years) she had attended on about thirty occasions with stomach problems for which no cause could be found, she stated:  “Possibly, I don’t know”.[20]

[20]T24, L2-3

·        The symptoms that she experienced in Japan were different to those that she had experienced in the past and she had an urge to “throw myself off the balcony” from the hotel room in Japan.

·        When queried about a variety of attendances at the Hospital for either abdominal pain, nausea or headaches, she could remember some of these attendances but not all.  Furthermore, she accepted that a variety of tests could not identify the precise cause of her nausea or headaches, although she was found to be allergic to pollen.

·        In particular, it was put to her that on 26 June 2003, she attended at the Emergency Department of the Hospital with headache, nausea and neck stiffness and photophobia – that is, unable to tolerate light.  Although she could not recall the precise date, she accepted in general terms that occurred and she was prescribed Pethidine and Maxolon.  Furthermore, doctors at that time undertook a CT scan of the brain, full blood examination, full urine microbiology, fill cerebrospinal fluid microbiology (spinal tap), all of which returned normal results.  She also accepted that on 29 June 2003, she re-presented at the Hospital complaining of the onset of severe headache, dizziness, photophobia, nausea and neck stiffness.

·        She does not recall being told what was wrong with her but does have recall that she had had a stressful day at work in her kebab shop, which was quite busy, and she had had staff issues and it was quite late in the day.

·        She was working in the kebab shop from 2000 to 2007 and in 2006, she gave the kebab shop to her brother, although the business continued to be hers.

·        She let her brother manage the kebab shop because she wanted to try different things.  The business was sold in 2007, reflecting her desire to try different things.

·        Between selling that business and commencing work with the defendant, she worked at Easy-Dial, which involved her going to various places and selling specialised phone numbers.  She did such work for about a year.

·        After that, she was employed at GE, and then with the defendant.

·        When she commenced with the defendant on 7 or 8 January 2008, she was given a four-week fast track course, after which you are on probation for three months.  You have to make various sales targets.  She was assigned to a Flight Centre office in Barkly Square, Brunswick, which commenced on 4 February 2008.  At the store there were two novices and an assistant manager that came from another store.  At the time of the incident with the roller door, she was still undertaking her traineeship, which extends for one year. 

·        She confirmed that she had been employed most of the time since leaving school. 

·        She accepted that she may have attended Dr Baglar and the Hospital some thirty-three times between 2000 and 2006 with complaints of stomach pain and similar problems.  She described such complaints to be largely related to her period pains and abdominal pains, together with headaches.  In particular, she gave the following evidence:

Q:“So are they similar sort of symptoms to what has been put to you up to date already in terms of going to the hospital and complaining about maybe head pain, maybe tummy pain, maybe about period problems.  Is that correct?---

A:Yes, period pains, stomach pains, headache pains prior to are you saying between my work?

Q:I think initially at this stage while you were working at the kebab shop?---

A:Yes.

Q:Indeed, so I’ve got this right, did that picture of events extend right up till May 2008 when you had the roll-a-door incident?---

A:Not all the way through, no.

Q:What changed, if anything?---

A:When I left the kebab shops I don’t believe I had any severe headaches like that unless it was caused by hay fever which is like the sinus little headaches.

Q:Yes?---

A:Or any episodes like that.  Gastric problems I may have said and period pains if I’m off the pill.  But other than that I don’t recall if it’s all the way up to May that I had headaches or anything like that.

Q:Certainly the period problems, to the extent you’ve got them and the abdomen problems to the extent you had those?---

A:Yes.

Q:That was something, I’m not suggesting an everyday problem, which you did have problems with?---

A:Yes, and it was related to, from my understanding, you know, when you stress that acids in your stomach build that.  ….”[21]

[21]T45, L13 – T46, L6

·        In January 2005, she went to Thailand and had only been there for twenty-four hours when a tsunami hit.

·        She drives a family car.

·        Her husband is self-employed as a VHA chauffer driver.  Mostly he gives his car out and works on the phone or emailing various drivers about jobs.

·        She looks after her baby son.

·        When queried about the future, she would love to be involved in another business but believes that she cannot concentrate and she is so unpredictable at times: one day she is fantastic with minor pain and one day she is a “total wreck”.

·        She does the shopping and takes the baby in a pram or stroller.

·        She would describe herself as being involved in ninety per cent of the housework and cooking.

·        Prior to the injury, she and her husband socialised much, and she continues to socialise with family and the larger Turkish community.

·        She continues to see Dr Leahey once a month, at which times there is discussion as to what she has been doing and how she has been coping.  Furthermore, there may be cognitive behaviour therapy, changing the medication, and he has changed her medication from 5 milligrams of Lexapro to presently 20 milligrams.

·        Between 1998 and 2008, she went overseas about three or four times to Europe and Asia.

·        Since the incident in May 2008, up to 21 February 2012, she accepted that she has attended the Hospital and Dr Baglar for nausea, vomiting and abdominal pain on twenty three occasions.

·        In June 2008, she underwent a CT scan of her inner ear because of the ongoing dizziness, which revealed no physical reason for such dizziness.

·        In October 2008, she had a colonoscopy because of the ongoing abdominal pain and bloating, and that revealed nothing to cause such problems.  In November 2008, she underwent a further gastroscopy and colonoscopy performed by Mr Butterfield, and ultimately Dr Baglar made a diagnosis of shingles.

·        On 20 November 2008, she had a further CT scan of her pelvis, after which there was no cause identified to explain the abdominal pain.

·        On 4 December 2008, she underwent a colonoscopy, which revealed no abnormality.

·        When in Turkey during July and August 2009, she underwent a whole series of tests including a CT scan, and she believes an MRI scan, echocardiogram and ultrasound, all of which detected no abnormality.

·        She accepted that on several occasions in late 2009, she was carried by her husband into the surgery of Dr Baglar because of severe period pain.

·        She still goes dancing and if she goes to a wedding or some type of function, she takes flat shoes with her because she cannot remain in stilettos for too long.

·        When her husband goes fishing she generally joins him and she continues to do things such as sightseeing and travelling.

·        She no longer does canvas painting and the last time she painted was actually before commencing work with Flight Centre.

·        Much of the time is spent looking after her baby son. Although she has a robot that vacuums, she tidies up and cleans as much as she can, puts away dishes, puts washing in the clothes dryer and bathes and feeds her son.

·        To the extent that she is not doing all of the duties that she did prior to her neck injury, she believes that is due to her neck pain, headaches and her shoulder and arm, which gets very weak.

·        Although her hours of sleep are somewhat determined by the baby, she has never had a full night’s sleep because of tossing and turning in her bed.

·        She enjoys going shopping for fashion items.

·        Over the last twelve months she has taken her son to a playgroup, referred to as GymbaROO, and swimming lessons.  However, because such activities involve physical interaction with the child, she had to cease that because she found it difficult.

·        When she is feeling fatigued, she will drop off her son at her mother’s or alternatively, seek her husband to look after the baby.  Her mother lives around the corner.  Her involvement could be two or three times a week, sometimes only for an hour or two and sometimes for a longer period involving a whole day.

·        When being interviewed by Dr Kennedy, in 2009, she felt uncomfortable and there was tension, in that she believed she was provoked and that she was not believed.

·        Besides the Lexapro, she also takes Nexium, 40 milligrams, for stomach acid, Vitamin D, Panadol Osteo, Panadeine Forte (when required) and Valium if she cannot control her anxiety.

·        Over the last twelve months, she has consulted Dr Leahey about family issues involving her husband and child.  By this she meant she was worried about how she was getting on with her husband and son.  However, she also raised with Dr Leahey concerns about her husband staying out at night and “whinging and whining” at her. 

·        She describes her marital relationship as being under strain and she has wanted a divorce a couple of times.  At this point she was doing her best to save her marriage.

·        She did not accept that she told Dr Kennedy that she expected to get $200,000 from a claim, but rather he must have misunderstood when she was talking about what her mortgage had blown out to.  In particular, she told Dr Kennedy that prior to her injury, she had $60,000 on her second home and that has gone out to just under $200,000.  Her “first” home is occupied by her parents and is paid off.

·        She accepted that she was angry and annoyed when seen by Dr Kennedy.

·        Before ceasing work with the defendant, she was angry with the defendant about what she perceived to be her “treatment” by the defendant.  She considered that the defendant was unreasonable in the targets she was expected to achieve in sales.  In December 2008, she was spoken to about the required targets.

·        Her modification of full duties when she resumed full-time employment was in relation to the symptoms in her neck and arm.

·        She noticed the attitude of the defendant in or about September or October 2008, and in particular, she noted that the roller door at that time had yet to be fixed.

·        Her certificates for a return to work were given by her general practitioner, Dr Baglar.

·        When queried about what brought about her stopping work in February 2009, the plaintiff gave the following evidence:

A:“The headaches.  It went on, it started because they sent me away from my workplace to an expo.  They have a travel expo checksheet at that time.  Knowing my condition, knowing my physical and modified duties they put me at an expo desk.

Q:So it’s an expo where Flight Centre had a sign?---

A:A massive sale.  They put me there.  That would have been the first week of February from memory and the desk and the computer and the chair was out of my ergonomic … .

Q:So as far as you were concerned that put you out of kilter, got more pain in the ---?---

A:Very much so.  I even had a friend to come to buy the Europe tickets knowing that the expo’s on sale and I actually asked them if they could give me a couple of Panadeine Fortes and I asked my area leader if they could change my chair or change something because I’m in a lot of pain and nothing was done about it.

Q:So it got to the point where one day you just couldn’t come in.  What happened?---

A:No, the day that I didn’t want to come into work because I had a massive headache and they said, ‘Unfortunately you can not leave because it’s the expo paperwork and stuff”.

Q:Yes?---

A:I was at work, it would have been Monday morning.  I had taken double doses of my medications just to function, and it would have been the next day when I went to the doctors because I wasn’t allowed to leave and that would have been my RDO and that’s when Dr Baglar said ---

Q:He gave you a certificate at that point?---

A:Yes.  Because he said you’ve just pushed yourself way too far.”[22]

[22]T89, L13 – T90, L10

·        She accepted that the work at the expo was a re-aggravation of her existing injury due to her work station being inappropriately set up.

·        In the month leading up to her ceasing work, she was agitated, restless, angry and frustrated with the defendant.

·        She has no investment property other than where her parents are situated. 

·        She feels incapable of doing any type of work and cannot think of anything she could do.[23]

[23]See generally T204, L15-27

·        She does not feel confident to be able to work or study.

·        In particular, she was queried about jobs recommended in a vocational report dated 8 February 2010:

Q:“This is the one that’s dated 8 February 2010 – 170, Your Honour, of the defendant’s case book – it’s the report that talks about you being suited to being a bookkeeper, administrative assistant, florist, call centre operator, property manager.  Did you see that report?---

A:Yes.

Q:You’re smiling and you’re nodding your head.  Do you want to tell us what?---

A:Based on obviously my knowledge prior to the injury that would be all something I could have done.”

HIS HONOUR:

Q:“I suppose what’s really being asked of you is this:  by your  answer you are inferring that you can’t do those jobs.  Why do you say in general terms you can’t do those jobs?---

A:Based on the littlest things that I said before.  I’ll attempt and  I’ll do a shopping list and I’ll come back without something that was something that I needed for home.  I’ll have a conversation sometimes, it’s like I feel dumb because I don’t understand it or I cannot fulfil something to the level of expectation.  When I read something there are words that I feel like I’ve lost words and capability of expressing it clearly.   Confidence level is to the point where it is not where I am.    … .”[24]

·        She has been offered work by friends but she feels her emotional state prevents her doing such work.

[24]T207, L2-24

21      Under re-examination, the plaintiff gave the following evidence:

·        When asked how her depression manifested itself each day, she stated:

“Thinking, sleeping, concentration.  I’m forgetful, I’m irritable, I’m anxious, I’m aggressive, snappy, angry.  Everything that is the total opposite of what I used to be.”[25]

·        Prior to the accident, she did not suffer from problems save for a “bit of business stress”.

[25]T213, L28-31

The medical evidence relied on by the Plaintiff

(a)    Dr Hakan Baglar

22      Dr Hakan Baglar described himself as a general practitioner carrying on a practice at the Dalton Village Medical Centre in Epping.  The plaintiff has been a patient of his since about 2000 at that practice but he also believed that he had consulted with her at corporate medical centres prior to that date.  He confirmed that he was the author of four medical reports dated 10 March 2009,[26] 22 February 2010,[27] 28 February 2011[28] and 15 October 2010.[29] 

[26]See Exhibit 2 at pages 44-46 PCB

[27]See Exhibit 2 at pages 47-49 PCB

[28]See Exhibit 2 at pages 50-54 PCB

[29]See Exhibit 2 at pages 55-57 PCB

23      Dr Baglar records that the plaintiff attended his practice and complained of the work incident which occurred on 30 May 2008.  In particular, she complained of dizziness, pain in her neck and shoulders, and difficulty in concentrating.  She also gave a history that she attended the Hospital on 31 May 2008 after waking up feeling nauseous.  When in hospital, she underwent a CT scan and later, an MRI scan.  According to Dr Baglar, her CT scan was not significant and the MRI scan indicated small disc bulging at C3-4 level, producing a minor indentation of the anterior aspect of the theca.

24      Dr Baglar gave her time off work and referred her to physiotherapy, and by 10 June 2008, she was feeling better, to the extent that she could return to work on limited hours performing light duties. 

25      Over the ensuing months, her hours of work were increased until full-time work was achieved in October 2008 with some restrictions as to the activities she could undertake.  She was also referred for a CT scan of the brain which showed no pathology. 

26      After she commenced to perform full-time hours, Dr Baglar obtained a history from her that the defendant had “put pressure on her” and she was criticised for not reaching her predetermined target sales.  He notes that such attitude seemed to have a negative impact on her mental state, which was already in “a bad shape” due to ongoing pain.

27      On 15 January 2009, she presented to the clinic in severe pain and during the course of her work, performed a sudden neck movement which caused her neck pain to flare up with a “vengeance”.  Shortly after that episode, Dr Baglar caused her to cease work and referred her to a psychologist for reactive Depression and Adjustment Disorder.  Later, Dr Baglar referred the plaintiff to a neurosurgeon, Dr Richard Bittar, who, according to Dr Baglar, diagnosed soft-tissue injuries with no need for surgery.  He recommended the avoidance of repetitive neck movements or activities which caused her neck to be in the same position for prolonged times. 

28      After ceasing her work, and due to her ongoing anxiety and adjustment reaction, Dr Baglar referred her to a psychiatrist, Dr James Leahey.  Dr Baglar has made the diagnosis of chronic neck pain and chronic Depression.

29      In his last report, Dr Baglar noted that she still continues to see the psychiatrist, Dr Leahey, and is on anti-depressant and anti-anxiolytic medications.  According to Dr Baglar, there is no change in her mood and general attitude and she is “very vocal and angry” when her injury is discussed.  Her attitude and general demeanour is still affecting her relationship with others around her, as well as her marriage.  Dr Baglar states:

“Purely on the basis of a physical state, she can’t work in any position which may require repetitive neck movements or prolonged neck flexion.  Also she can’t work with any fixed pace.  Considering the comments by the IME (Dr A Jager), regarding not dealing with the public, I can’t visualise any suitable employment for Birgul.”[30]

[30]See Exhibit 2 at page 57 PCB

30      Under cross-examination, Dr Baglar accepted that prior to the injury, the plaintiff had suffered gastric problems, nausea and headaches, and very painful periods.  Furthermore, he accepted that a variety of examinations were undertaken and no real cause was found for these conditions. 

31      Counsel for the defendant put to Dr Baglar a variety of jobs, some suggested by the vocational reports.  Dr Baglar was of the opinion that the plaintiff was effectively totally incapacitated, in part because of her neck problem and in part because of her psychiatric condition.

32      Dr Baglar accepted that he has given the plaintiff certificates for modified duties – however, he explained that these duties were in relation to her “physical injuries”.  Again, under cross-examination, Dr Baglar made clear that he deferred to the treating psychiatrist in relation to any psychiatric condition.  Notwithstanding such deferral, he did not agree with the opinion that the completion of the WorkCover case may well improve her condition, as suggested by Dr Leahey.  In particular, the following evidence was given:

Q:“You don’t agree with Dr Leahey … That it will improve --- that her condition might well improve with the resolution of her WorkCover case?---

A:Considering her progress under my care up to this point I don’t think she will improve whether the court settled that way or that way.”

HIS HONOUR:

Q:“This woman is only 34 years of age.  What do you see the future?---

A:Your Honour, it’s not her choice.

Q:No, I’m not suggesting it is doctor?---

A:But if you leave her she wants to go and she wants to work in building construction sites, she’s such a girl.  But she is not in that state.

Q:I’m just not quite clear what you are saying though.  Do you see this as, how long-term is it?  Something forever, or do you see this as something which you think time will heal to some degree or what?---

A:Time will show I can say it, your Honour.

Q:Sorry?---

A:Time will show I can say.  This is the best I can say.”[31]

[31]T128, L15 – T129, L2

33      Dr Baglar was questioned about the variety of pains and complaints made by the plaintiff prior to her injury with the defendant.  In particular, the following evidence was given:

HIS HONOUR:

Q:“Doctor, do you think any of these other problems like the period pain and the abdomen pain and the things that you’ve been treating her on and off for since 2000, are they playing any role in her psychological presentation?---

A:Your Honour, I remember Birgul from the days that she was operating a kebab shop.  When she was having period pain she used to come to me, get her injection and in that state she was going back to her work. You don’t expect to see a depressed patient because of that physical pain. 

Q:But it seems to be that on one hand, as I understand your evidence, your concern is putting her into an environment where she has to use her neck and there may be neck pain, and the neck pain in turn will, my words, exacerbate the psychological condition.  So there seems to be a relationship there.  But do you think pains otherwise would play a role?---

A:Your Honour, nobody likes being in pain. Pain always brings negative emotions. But in her case other physical pains were not going to cause any lasting low emotional state.

Q:Only answer this if you can, doctor. I appreciate what you said, the psychiatrist is - you’d defer to him. But the fact of the matter is, as I’ve heard from the plaintiff, she got back to work no doubt under your supervision for quite a period of time and doing full-time work for a period of time?---

A:Yes, Your Honour, I remember.  That came from her.  It came from her.  

Q:It came from her.  Then, as I understand her evidence, she was annoyed with the employer because of what she perceived to be excessive demands and ---?---

A:Yes, to meet her targets, Your Honour, yes.

Q:- - - targets.  That seems to have brought about the cessation of the employment?---

A:Yes, Your Honour.

Q:She is still, as she said I think in evidence last week, still very annoyed with the employer?---

A:Yes, Your Honour.

Q:As far as you’re concerned is it the annoyance with the employer which is the generator of the psychological condition?---

A:Your Honour, I wouldn’t call it the generator, but her condition could have been modified, it could have been much different if she were given the freedom of working at her own pace without meeting any fixed targets and with understanding.  Maybe every now and then asking her how she was, showing her some understanding and support from her employer.  It wouldn’t have caused deepening of her depression.

Q:It just seems to me at one level the neck wasn’t so much the cause of her stopping work, it was what she perceived to be the attitude of her employer causing her to stop the work. Is that right?---

A:We knew that when she went back to that setting she could have her pain at the time, yes, bottle them into less, Your Honour.”[32]

[32]T131, L26 – T132, L14

34      Dr Baglar explained that whereas he was giving certificates “fit for modified duties” in May and June 2011, such certificates had changed to “no capacity” because of deterioration in her emotional state.  When queried why her emotional state would deteriorate when she is under the care of a psychiatrist, Dr Baglar stated:

“Your Honour, I think with the realisation that this pain will be there all the time and it will always trigger her negative emotions, making her depression worse.  I think she’s coming to terms that there is no end to this pain.”[33]

[33]T135, L4-9

35      Dr Baglar accepted that leaving aside her neck, all the tests in relation to pelvic pain, abdomen pain and the like revealed nothing “substantial”.

36      Under re-examination, Dr Baglar expressed the opinion that he considered the plaintiff to be “genuine” after having seen her many times.  Prior to injury in 2008, she showed no evidence of depression, whereas since the incident in 2008, she has demonstrated depression, musculoskeletal and discogenic cervical pain.  Dr Baglar also described the plaintiff having “chronic pain” resulting from the injury in 2008.  When asked how she displayed her depression, Dr Baglar stated:

“She complains of lack of sleep and she has difficulties to initiate her sleep and to maintain her sleep and she feels a sense of inadequacy and she has low mood, she is very snappy with other people, she can’t tolerate others and from time to time she has teariness.  Even in the surgery when we are talking about what happened in the past, how her life is now and also when we are discussing about her baby, when we are discussing her capacity as a mother, she presents with tears.”[34]

[34]T146, L6-14

37      Dr Baglar confirmed his opinion that her “disability” which he considered to be involved with her neck and her psychiatric condition, are both “permanent”.

(b)       Dr Richard Bittar, neurosurgeon

38      The plaintiff also relies on two reports from the neurosurgeon, Dr Richard Bittar, who consulted with the plaintiff on 26 August 2008[35] and on 10 March 2009.[36]

[35]See report dated 28 August 2008, Exhibit 2 at pages 58-59 PCB

[36]See report dated 9 May 2009, Exhibit 2 at pages 61-63 PCB

39      After his first examination, Dr Bittar was of the opinion that the plaintiff suffered a work-related soft-tissue injury to her neck, resulting in symptoms.  In particular, Dr Bittar noted an MRI scan of the cervical spine undertaken on 2 June 2008 demonstrated disc bulging at C3-4 without cord compression.  Dr Bittar was of the opinion that the plaintiff did not require surgical intervention and her condition was best managed with ongoing physiotherapy and analgesia.  He explained to the plaintiff that these injuries often take six to twelve months to resolve and she should avoid repetitive neck movements, as well as maintaining her neck in a constant position for a prolonged period.

40      When reviewed on 10 March 2009, she still complained of neck pain, headaches and pain radiating into her left trapezius and shoulder region.  Mr Bittar continued to opine that the diagnosis is of a soft-tissue (musculoligamentous) neck pain with a differential diagnosis of discogenic neck pain.  At the time of his last review, Mr Bittar considered the plaintiff was unfit for work but it was difficult to determine whether such unfitness was due to physical issues rather than psychological issues.  He recommended obtaining an opinion from her treating psychologist.

(c)       Ms Semra Durmaz, psychologist

41      The plaintiff relies on a report from the psychologist, Ms Semra Durmaz, dated 14 November 2009.[37]

[37]See Exhibit 2 at pages 83-90 PCB

42      Ms Durmaz consulted with the plaintiff on referral from Dr Baglar.  She obtained an extensive history and commenced treatment of the plaintiff, focussing on anxiety, depression and managing her pain more effectively with the instruction of relaxing skills.  In her report, Mr Durmaz states, in part:

“Mrs. Tercan, a 31-year-old woman suffering from an Adjustment Disorder mixed with Anxiety and Depression, which in my opinion, resulted directly from the work place injury which she [was] involved in [in] May 2008.

…

Mrs Tercan has presented her psychological symptoms and emotional reactions in a consistent and genuine manner.  In my opinion she is an honest person who appears to be genuine in her attempts to get well physically, emotionally and psychologically.  Mrs Tercan has reported that her aim is to overcome her pain, depressive and anxious symptoms, which are interfering with her daily functioning and her ability to manage her pain effectively.

Mrs Tercan has suffered a number of significant problems as a consequence of this injury.  Many of these problems continue and a major reason for her depression, such as loss of enjoyment of life, concentration problems, increased agitation and irritability, experiencing sleeping difficulties nearly every night, and social isolation.  These psychological injuries and associated physical pain reactions have been amplified by the uncertain future.

… .”[38]

[38]See Exhibit 2 at pages 89-90 PCB

43      Ms Durmaz noted that she was to cease her treatment in December 2009.

(d)      Dr W Leahey, psychiatrist

44      Dr William James Leahey gave evidence on behalf of the plaintiff.  He described himself as a specialist psychiatrist who has been treating the plaintiff since April 2009 on referral from her treating general practitioner, Dr Baglar.  He confirmed that he had supplied three reports, dated 4 April 2010,[39] 1 March 2011[40] and 30 September 2012.[41]

[39]See Exhibit 2 at pages 64-70 PCB

[40]See Exhibit 2 at pages 71-73 PCB

[41]See Exhibit 2 at pages 74-82 PCB

45      Dr Leahey commenced to treat the plaintiff on 23 April 2009, at which time she presented with complaints of sleep disturbance, irritability, symptoms of anhedonia (loss of pleasure) and avolition (loss of drive).  Furthermore, she reported significant anxiety, particularly when leaving her house and dealing with friends.  Prior to the injury with the defendant, she described her premorbid personality as “very gregarious”.

46      The plaintiff denied any psychiatric history when queried by Dr Leahey and gave a medical history involving dysmenorrhoea, gastro-oesophageal reflux and childhood asthma.  Mental state examination at the first consultation revealed that her affect was moderately depressed and she was tearful at times throughout the interview.  Although there was no formal thought disorder or psychosis present, there were prominent themes of distress, anger and frustration regarding the injury, its consequences and her treatment by the defendant.

47      Dr Leahey diagnosed Major Depression secondary to her workplace injury and her resultant loss of role due to working incapacity, with subsequent secondary distress and anger due to her perception of a lack of support from colleagues and management at the premises of the defendant.  Dr Leahey describes how the plaintiff resisted further anti-depressant therapy and consultations involved “talking therapy”.

48      Following a return from Turkey in September 2009, Dr Leahey found the plaintiff in “good form” and she purported feeling in control and keen to “get on”.  At that time, she felt she was less focussed on blaming the defendant but there was still “an outstanding issue regarding compensation for her pain and suffering”.

49      In his first report, Dr Leahey states:

“It is my opinion that Birgul Tercan developed a Major Depressive illness following a workplace accident on the 30^th of May 2008 and that the symptoms of this illness largely persist.  The precipitating factor for this condition was predominately the loss of role she felt as she was unable to work for the first time in her adult life and the consequent loss of her sense of self while the perpetuating factor is principally the anger she feels regarding her treatment by Flight Centre and in particular the lack of consideration she was shown as she attempted to return to work.  …

Given the evidence of suitably qualified surgeons regarding the lack of a clear physiological/anatomical basis for Birgul’s ongoing pain and dysfunction and given my assessment of her current mental state and what I know of her premorbid personality, I would support the proposition that there is a significant component of somatisation to her presentation.  This is the unconscious manifestation of genuine psychological distress through physical symptoms.  I do not believe that there is any element of malingering or factitious disorder to her presentation.

There is no possibility of her returning to her pre-injury duties given the deteriorated relationship between Birgul and Flight Centre.  I doubt that Birgul is currently fit to return to any alternate duties at this stage as she remains too incapacitated by both her psychological and physical symptoms, regardless of the origins of the latter.”[42]

[42]See Exhibit 2 at page 69 PCB

50      Over the years, Dr Leahey notes that the clinical state of the plaintiff has fluctuated considerably, which in part is due to her ongoing frustration with the WorkCover process.  Furthermore, over the period of treatment, Dr Leahey has noted an increase in tension between the plaintiff and her husband.  Dr Leahey also noted that it was difficult to persuade the plaintiff that she should take anti-depressant medication. 

51      In his last report dated 30 September 2012, Dr Leahey notes that he continues to see the plaintiff on a fortnightly or monthly basis.

52      When last reviewed on 20 September 2012, the plaintiff presented as very tense and was tearful regarding her ongoing need for anti-depressant medication.  Furthermore, according to Dr Leahey, she was also fundamentally distressed at the loss of the life that she had previously had, characterised by an active social life, regular physical exercise and financial security.  He also noted that her situation was exacerbated by her husband not working due to a number of orthopaedic problems.

53      Dr Leahey expressed the opinion that the plaintiff was unfit to return to her work with the defendant and was “not currently fit to return to any alternative duties as she remains too incapacitated by her psychological and physical symptoms regardless of the origins of the latter”.

54      Dr Leahey does note that the resolution of her symptoms that have continued to prevent her from returning to work will take some time and require ongoing regular psychotherapy in combination with anti-depressant treatment, and that process will be considerably expedited by the end of the current WorkCover dispute process.

55      Under cross-examination, Dr Leahey was informed of the number of attendances the plaintiff made on Dr Baglar and the Hospital over the years leading up to the injury on 30 May 2008.  In particular, he was informed of her complaints of gastrointestinal pain, pelvic pain, period pain and various other symptoms.  Furthermore, Dr Leahey was also informed of the various investigations undertaken, including scans, colonoscopies and gastroscopies which showed no organic cause for her abdominal and pelvic pain.  When queried as to whether this history would cause him to alter or review his opinion, he replied, “No, not at all”.[43]

[43]T157, L29

56      Dr Leahey described “somatization” as the subconscious production of physical symptoms related to psychological distress essentially.  Such symptoms may be genitourinary, gastroenterological or really from any part of the body system.  Dr Leahey stressed that a diagnosis of somatization disorder would require a cluster of symptoms from a number of physical systems.

57      Dr Leahey accepted that it would be “possible” that the plaintiff had suffered a somatization disorder in the past given the history put to him.  However, he did point out that such a diagnosis can be “dangerous” unless one is absolutely sure that organic causes have been ruled out.  However, he did accept there was probably somatization of the pain in the neck area as complained of by the plaintiff.

58      In particular, the following evidence was given:

Q:“So what we have is about 60 presentations from 98 to last year. Does that mean anything to you in terms of the opinion that you’re here to express today and does that cause you to reconsider it or not?---

A:It’s certainly interesting and I wasn’t aware of it.  I have never really pursued the past medical history because it hasn’t been relevant to the work we were doing but it doesn’t, in my mind, cause a conflict with the opinion I formed with regard to her current presentation. In fact, if anything, it supports it.”[44]

[44]T163, L11-20

59      Later, the following evidence was given:

HIS HONOUR:

Q:“Doctor, one of the difficulties here is that you’ve made a diagnosis of major depression, as I understand it?---

A:Yes, Your Honour.

Q:Let’s assume for the purposes of these questions that the presentations of the plaintiff to her doctor and the hospital over quite a number of years prior to the incident in question could only be perceived as no organic basis for the complaints.  Indeed some of the episodes subsequent to the incident in question may be In Japan and various attendances on the general practitioner, practitioner, where again further tests have been done and again there’s been no organic cause to support that.  Assume all that to be true.  What do you mean when you say, as I understood your evidence, in fact that helps support your diagnosis?  What do you mean by that?----

A:I’m suggesting, Your Honour, that it demonstrates, it would seem, that the patient has a history of somatising psychological distress as physical symptoms, that somatisation can be related to personality style, ethnic group, where people have grown up, you know, what their mother was like.  You know, a whole lot of things contribute to people’s tendency to somatise.  Children with abdominal pain when they’ve got a, you know, project due at school, for example.  It’s not a psychiatric disorder in the sense of schizophrenia, bipolar.  We can all somatise at times.  Some people have a much greater tendency to somatise.  What I’m suggesting is based on the evidence that is being presented to me.  It fits with the proposition that Ms Turcan (sic) has a greater tendency to somatise than perhaps many others in the population.”[45]

[45]T167, L22 – T168, L20

60      Dr Leahey gave evidence that the plaintiff was presently taking 20 milligrams of Cipramil and he indicated that any treatment with Pristiq was arranged by the general practitioner, Dr Baglar.

61      Under cross-examination, Dr Leahey made the point that he considered the best thing that could happen to the plaintiff was to get all the legal proceedings “out of the way”.  He noted that there have been various times when the plaintiff had seemed “better” but such progress is cut short when situations such as when her payments were cut off or she believed she was subject to surveillance.

62      When queried that on the assumption the process finished say “next week”, what would be the prognosis of the plaintiff, Dr Leahey stated:

“I’ll try and give, a concise answer to your question.  We would have a lot of work to do to, I suppose, help heal, to move on. That would take a period – I would hope that wouldn’t take too long. Improve mental state, make some tangible plans for the future, look at what work she can do, assist her in pursuing that.  I would hope that she would do reasonably well, but I can’t be absolutely certain.  It needs to be tried.”[46]

[46]T180, L9-16

63      Later, he described it would be a situation of her “dipping her toe in the water” when returning to work.  Dr Leahey made clear that it would be totally inappropriate for the plaintiff to go back to work with the defendant.

64      When queried as to when the plaintiff would be able to “dip her toe in the water”, Dr Leahey stated:

A:“I think the key there, Your Honour - sorry if I’m going to complicate it further - is it would depend to some degree on the outcome.  If it was something she perceived as a very adverse outcome, giving the issues I’ve highlighted about the way she feels she’s already been treated, if I may say, as a consequence of the accident, that would give us considerably more work to do than if she had a positive outcome.  I think I’ve said in my report I feel one thing she’s needed was validation that she did have an injury.

Q:I think you made the point earlier about compensation?---

A:Yes.

Q:Yes?---

A:But I think validation is more important than compensation. She may disagree with me, but from a psychological point of view, I think that’s what she really needs.  So if I say then, Your Honour, I believe that we can work through these things, but the actual timeframes we’re talking about will be significantly determined by the outcome.  … .”[47]

[47]T183, L1-18

65      Dr Leahey disagreed with the opinion of Dr Simon Kennedy that the plaintiff had pre-existing personality difficulties with histrionic and borderline features.

66      Under re-examination, Dr Leahey stated that he found the plaintiff to be a “genuine person”.  Furthermore, when queried about the prospect of some recovery and work in the future, he was asked what “residue is likely”.  Dr Leahey stated:

“Once again that’s a difficult question because we are looking into the future.  It’s probably unlikely that she will ever leave this completely behind.  It has been a substantial part of her life, four years or more that she has been dealing with this, a sense of loss of a career that she was excited to embark upon.  There are other consequences such as the impact on her relationship with her husband, friends et cetera, that will take a long time to repair, if at all.  I hope that answers your question.”[48]

[48]T189, L8-17

67      Dr Leahey also emphasised in re-examination that prior to her injury, the plaintiff was very driven to succeed and to achieve financially, and the injury has very much impacted on her sense of “self”.  Furthermore, Dr Leahey expressed the opinions that the obstacles before her in obtaining employment would be her current anxiety, particularly her loss of confidence, her loss of sense of self, her lack of drive, her lack of motivation and her sleep disturbance.

Medico-legal reports relied on by the Plaintiff

68      The plaintiff relies on the following medico-legal reports:

(a)   The report of the psychiatrist, Dr Paul Kornan, who examined the plaintiff on 8 October 2012;[49]

(b)   The report of the consulting psychologist, Mr John Karamanos, who examined the plaintiff on 14 September 2012.[50]

[49]See report dated 9 October 2012, Exhibit 3, at pages 90-102 PCB

[50]See report dated 10 October 2012, Exhibit 3, at pages 103-118 PCB

69      Dr Kornan considered the plaintiff presented with indications of personality issues but does not have a diagnosable Personality Disorder.  In particular, he considered that she presents with a Pain Disorder associated with psychological factors.  He considers such condition related to the injury.

70      Dr Kornan considered from a psychiatric point of view, the plaintiff is totally unfit for all employment and the prognosis is “not favourable”.  In particular, Dr Kornan stated:

“The prognosis is not favourable.  I do not believe that psychotropic medication, in itself, would do much for her, except help limit downward fluctuation, and control some florid symptoms.  Unfortunately, once this type of syndrome develops, it often has a momentum of its own, and can last for quite some years.  With a significant percentage of people, it, in fact, lasts indefinitely.

…

This is a woman who clearly had an unusual personality prior to this injury.  She was someone of forceful, driven, self-confident temperament, with definite ideas of her own.  Such people are often destabilised by a physical injury, and for some reason, this appears to have happened to her.  It was not predictable.  As outlined above however, once the condition developed, and often fairly quickly, it develops a sustained momentum of its own.

… .”[51]

[51]See Exhibit 3 at page 102 PCB

71      Dr Karamanos made a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He considered her psychologically unfit for any type of employment.  In particular, he stated:

“In my opinion, Mrs Tercan is psychologically unfit for any type of employment at this time. 

My opinion is based on the persistence of Mrs Tercan’s intractable and chronic neck, left shoulder and arm pains, headaches and unpredictable anxiety and panic attacks her moderately severe depressive symptoms; her diminished concentration and alertness, slow thinking and her dependence on strong opioid analgesics on a daily basis to control her pain and discomfort. 

In my opinion her psychological incapacity is likely to persist in the foreseeable future.

…

In my opinion Mrs Tercan will require ongoing psychiatric treatment.  This treatment is necessary to maintain her current emotional state and avoid any further worsening of her psychological and psychiatric symptoms.

Her condition is unlikely to improve with psychiatric treatment but it is important to maintain her current emotional functioning.

… .”[52]

[52]See Exhibit 3 at pages 103-118 PCB

Medico-legal reports relied on by the Defendant

72      It is convenient to refer to the medico-legal reports relied on by the defendant.  Such reports consist of:

(a)   The report of the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 27 August 2008;[53]

[53]See report dated 4 September 2008, Exhibit D, at pages 1-3 DCB

(b)   The report of the consulting physiotherapist, Mr N Sherburn, who examined the plaintiff on 16 December 2008;[54]

[54]See report dated 16 September 2008, Exhibit D, at pages 4-9 DCB

(c)   The report from the consultant neuro-psychiatrist, Dr John H Lloyd, who examined the plaintiff on 9 March 2009;[55]

[55]See report dated 12 March 2009, Exhibit D, at pages 13-19 DCB

(d)   The report of the general surgeon, Mr Peter Battlay, who examined the plaintiff on 12 March 2009;[56]

[56]See report of the same date, Exhibit D, at pages 20-25 DCB

(e)   The report of the consultant neurosurgeon, Mr David Brownbill, who examined the plaintiff on 24 November 2009;[57]

[57]See report of the same date, Exhibit D, at pages 63-70 DCB

(f)   The report of the general surgeon, Mr T J Russell, who examined the plaintiff on or about 1 December 2009;[58]

[58]See report of the same date, Exhibit D, at pages 71-75 DCB

(g)   The report of the consultant psychiatrist, Dr Timothy Entwisle, who examined the plaintiff on 12 November 2009;[59]

(h)   The reports of the consultant psychologist, Dr S Kennedy, who examined the plaintiff on 21 September 2009[60] and on 1 October 2012.[61]

[59]See report dated 16 November 2009, Exhibit D, at pages 56-62 DCB

[60]See report dated 30 September 2009, Exhibit D, at pages 26-37 DCB

[61]See report dated 3 October 2012, Exhibit D, at pages 42-55 DCB

73      Mr Jones, who had available a CT scan of the plaintiff’s cervical spine and an MRI scan of her cervical spine, was of the opinion that the incident on 30 May 2008 aggravated pre-existing asymptomatic cervical spondylosis.  At the time of his examination, the plaintiff was working restricted hours and Mr Jones considered that over the next three months her hours would increase and he would have expected her to be working normally then.

74      The physiotherapist, Mr Neil Sherburn, made a similar diagnosis, but noted that the plaintiff does have a work capacity, as demonstrated by her return to work undertaking pre-injury work and hours.

75      Mr Battlay considered that the plaintiff had suffered a C3-4 disc derangement as a result of the incident.  However, when he examined her, he considered that there was a very significant degree of functional overlay in her presentation.  At the time of examination, he considered that she would be fit to return to full duties within three months.

76      Examination by the neurosurgeon, Mr Brownbill, on 24 November 2009 revealed non-uniform restriction of cervical spine movements, no objective neurological abnormality, and no objective signs of radiculopathy or myelopathy.  Mr Brownbill was of the opinion that the plaintiff had suffered a soft-tissue injury to the structures about the cervical spine as a result of the injury.

77      Mr T J Russell considered that the plaintiff had suffered an acute neck strain, although there was a possibility of contribution from a degenerative process.  He considered that from a physical point of view, she would be able to return to work in her pre-injury duties but may need extra rest breaks.

78      After taking a detailed history and making both a mental state examination and neurological examination, Mr Lloyd stated:

“1) Mrs Birgul Tercan now aged 31 years, suffered injury at work on 30^th May 2008 when a roller door fell on her head.

She suffered a minor concussive head injury and a soft tissue injury to the neck which apparently aggravated underlying cervical spondylosis.

Mrs Tercan experienced headache, dizziness, nausea and pain in the neck and left arm associated with altered sensation and strength.  Persisting headache is described along with altered sensation and function in the left arm and pain in the neck.  Additionally there has been evidence of a mood disorder with depressive features and anger in relation to the injury.

2) There appear to be no other issues that are impacting on the current situation.

3) Mrs Tercan denies any pre-existing medical or psychological problems.

4)  While she had apparently achieved a return to her full duties prior to Christmas of 2008 and she was generally feeling optimistic, the circumstances operating at the time of the expo in February of this year were such that her head and neck pain were acutely accentuated and she felt herself quite unable to continue work.

Added to her depressive feelings are the anger and the perception that she holds that staff were primarily interested in targets rather than her condition following the injury.

5) At the present time Ms Tercan is not employed but it is my view she would be quite capable of comparable employment but not at the Flight Centre address where she was employed in Brunswick. 

… .”[62]

[62]See Exhibit D, at page 17 DCB

79      Dr Entwisle again, after taking a history and making a mental state examination, was of the opinion that the plaintiff suffered from an Adjustment Disorder with Depressed and Anxious Mood.  Such condition was contributed to by her injury during the course of her employment with the defendant.  In particular, Dr Entwisle stated:

“Her mental disorder of itself does not result in limitation of her daily activities of living, social functioning, concentration or occupation.  Her experience of pain and her physical symptoms do restrict her activities and interests however.

… .”[63]

[63]See Exhibit D, at page 60 DCB

80      When initially seen on 21 September 2009, Dr Kennedy, the psychologist, diagnosed a past Adjustment Disorder with Mixed Anxiety and Depressed Mood and some dysphoria (not clinically significant).  In particular, he considered that on the basis of his first examination, the plaintiff was not suffering from a formal psychological disorder, although there were some ongoing symptoms of Anxiety and Depression materially contributed to by the injury.  In particular, Dr Kennedy was of the opinion that there was no pre-existing psychological disorder and that she was fit for work from a psychological point of view.

81      In a supplementary report dated 17 June 2010, he was referred to a vocational assessment report dated 8 February 2010, wherein he responded:  “Broadly speaking from a psychological perspective there are no restrictions on the worker”; however, he did consider that it would be appropriate to determine whether the positions contained in such report were physically appropriate for the plaintiff.

82      When later examined by Dr Kennedy on 1 October 2012, he diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  Furthermore, there were personality difficulties (with histrionic and borderline features) and general medical conditions pertaining to the back and neck.

83      In his report dated 3 October 2012, Dr Kennedy answers questions as follows:

“1       Has the worker’s condition changed if any and in what way since you last examined her:

Yes, in 2009 it was found that the worker had previously suffered an Adjustment Disorder, but this was not clinically significant at the previous evaluation.  The worker’s anger, anxiety and depressive symptoms had become clinically significant in the period from the last evaluation to the present evaluation.

2Has the condition injury been caused, aggravated, exacerbated or accelerated by:

(a)Her employment with the employer in general?

The worker’s psychological condition has been caused by her physical state and her pre-existing personality problems.  I am assuming that there is a relationship between her employment and her physical state, although this issue is outside my area of expertise as it represents a question for a medical practitioner to address.  In this case, if the worker’s physical state has been contributed to by her employment, then her psychological state has been contributed to also by employment.  She has developed an Adjustment Disorder but there are also pre-existing personality difficulties.

(b)Any particular incident(s) in that employment?

I am not in a position of identifying which incident has caused the physical condition, her psychological state is secondary in general to her physical condition and her personality difficulties.

(c)…

3If you believe employment with the named employer has been a contributing factor to any condition/injury affecting the worker, how would you describe the extent of that contribution?  …

The effect of the worker’s physical condition has been significant on her psychological state.

4How do the injuries affect the worker’s enjoyment of life and daily activities?

The worker has claimed that her physical state markedly affected her enjoyment of life and reduced daily activities, significantly reducing the scope of these activities and her ability to undertake a variety of both social and home based tasks as well as reducing any ability at this point for her to work.

5…

6…

7How have the injuries affected the worker’s employment capacity.  In particular:

(a)Do you believe the worker has a permanent incapacity for any and what employment?

The psychological condition in itself has not lead (sic) to a permanent incapacity for employment.  The worker’s Adjustment Disorder in itself is not extreme enough to lead to a permanent incapacity, if she was able to work from a physical point of view, in my opinion she could work from a psychological point of view.

(b)Whether the worker is fit for pre-injury employment and, if not, when it can be expected the worker will be fit for such employment?

Yes, from a psychological point of view, I consider she is fit for pre-injury employment.

(c)…

8If you conclude the worker has a work related psychiatric or psychological injury assessable do you believe it:

(a)arises as a consequence of/secondary to physical injury?

The worker’s Adjustment Disorder is secondary to the physical injury but is related to her pre-existing personality difficulties as the personality difficulties have been exacerbated by the physical injury and this has led to an Adjustment Disorder.  That is, her Adjustment Disorder has arisen out of her pre-existing personality problems, triggered by the stress of the physical injury. 

… .”[64]

[64]See Exhibit D, at pages 51-53 DCB

84      The defendant tendered a bundle of medical notes from Dr Baglar and clinical notes from the Hospital.[65]  In particular, I note that the plaintiff consulted Dr Baglar on 23 January 2007 complaining of her neck being sore on the left side and experiencing pins and needles in her left arm.  At that time, he arranged for a CT scan of her cervical spine to be undertaken.

[65]See Exhibits A and B

85      On 25 January 2007, Dr Baglar seemingly explained to the plaintiff that she had disc bulging, and physiotherapy was prescribed.  Although not completely clear from the note, there was narrowing at the C4-5 disc.

Analysis of the evidence

86      I have attempted to set out much of the important evidence given in this proceeding which gives rise to difficult and complex issues to resolve.  By this, I mean, that at first blush, various aspects of the plaintiff’s history prior to the injury and indeed, some events after the injury, would suggest that such injury is not “severe” within the meaning of the Act.  Against this, there is a large amount of evidence to suggest that the plaintiff has been totally incapacitated for all types of work to date and according to some expert witnesses, will remain so incapacitated into the foreseeable future.  The matter is also made complex when one considers what can only be described as the vast number of attendances on Dr Baglar, the treating doctor, and the hospital, prior to the injury, relating to matters for which no organic cause could be established.  Again, such history must be taken in the context that according to some of the evidence, the plaintiff functioned at a very high level, in both a business and social sense, prior to the injury.

87      It is perhaps apposite to make some comments about the evidence before me.  I gained the impression through a thorough cross-examination of the plaintiff that the plaintiff was attempting to give honest and accurate answers to the questions posed to her.  Moreover, I formed the view that the plaintiff followed the questioning well and answered in an articulate way.  However, during the course of her evidence, she was clearly distressed and upset on occasions.  For example, when speaking about what she perceived her inability to give full attention to her new young son and her perception as to her “lost life” compared to the life that she led prior to the occurrence of the injury.

88      I did not find the evidence of Dr Baglar to be impressive and I gained the impression that on occasion he became an advocate for the plaintiff rather than giving expert evidence.  Dr Baglar made plain, that in general terms, he deferred to the opinion of the treating psychiatrist, Dr Leahey, in relation to psychological matters (although he disagreed with Dr Leahey as to the opinion that the plaintiff may well improve after the cessation of legal proceedings).  Dr Baglar was of the view that the neck injury suffered by the plaintiff when the roller door fell on that area, was an ongoing problem causing pain at and around the neck area which in turn contributed to the development of her psychological state.  He also accepted that the plaintiff’s perception as to how she was treated by the defendant (which he considered to be bad) also was causative of her psychological condition.

89      On the other hand, I found the evidence of Dr Leahey, the treating psychiatrist, to be cogent and balanced.

90      I do find that prior to the injury, the plaintiff was “driven”, ambitious both in terms of pursuing various business opportunities or occupations and seeking financial independence.  This is perhaps best exemplified by her time from 2000 to 2006 when she very successfully ran a kebab shop in the northern suburbs, employing a variety of full-time and part-time workers and operating seven days a week.  I gained the impression that she led a “full” life, both in her occupational pursuits, recreational pursuits (netball) and social pursuits (mixing with a wide variety of people). 

91      I also find that during at least the period for ten years prior to the injury, she regularly attended the Hospital (or its predecessor) and Dr Baglar making complaints of various pains in her abdomen, pelvic area, head, and also presented with various symptoms of period pain and nausea.  Some of her presentations were quite dramatic and over such period of time, little, if any, organic cause was identified for such complaints.  However, consistent with my earlier comments as to the ambition of the plaintiff, there would appear to be no significant periods of time lost from work as a result of any of these problems, or any significant treatment in relation to such problems.  Such a view was supported by Dr Baglar.

92      After a consideration of all of the evidence, I do find that the plaintiff suffered a psychiatric injury arising out of or in the course of her employment with the defendant.  I do accept that a roller door fell on the plaintiff, causing her to at least initially suffer neck pain to which there was a psychological reaction, and indeed, I consider that the subsequent employment of the plaintiff leading up to her cessation of employment in February 2009 gave rise to a perception by the plaintiff that she was badly treated by the defendant.  In particular, I accept the opinion of Dr Leahey when he diagnosed the plaintiff to be suffering Major Depression “secondary to her workplace injury and her resultant loss of role due to working incapacity with subsequent secondary distress and anger due to her perception of a lack of support from colleagues and management at the premises of the defendant”. 

93      Furthermore, bearing in mind the consensus of opinion (with the possible exception of Dr Baglar) that the neck injury resulted in a soft-tissue or musculoligamentous injury, which should have otherwise been short-lived, I also accept the opinion of Dr Leahey that insofar as she relates physical symptoms in her neck and surrounding areas, such symptoms represent a “significant component of somatisation”.  All other psychiatrists and/or psychologists in one form or another accept that the plaintiff suffered a compensable psychological injury arising out of or in the course of her employment with the defendant.

94      It is submitted on behalf of the defendant that I should view such “injury” an “aggravation of her pre-existing psychiatric condition”.  In such circumstances, it is further submitted that I should apply the principles enunciated in Petkovski v Galletti;[66] (see also Guppy v Victorian WorkCover Authority;[67] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[68]) to determine whether the extent of any “aggravation” has resulted in a psychiatric impairment, the consequences of which are “severe” within the meaning of the Act.

[66][1994] 1 VR 436

[67][2010] VSCA 164 at paragraph [19]

[68][2012] VSCA 60

95      I reject such submission.  Other than the psychologist, Dr Kennedy, no specialist diagnoses the plaintiff to have a pre-existing psychological condition.  Indeed, in the copious records held by the Hospital and Dr Baglar, there is no such diagnosis.

96      Seemingly, such a proposition is based on two matters – the reports following the examinations by Dr Kennedy and the seemingly lack of organic evidence to support complaints of pain prior to the injury.

97      In relation to the first aspect, it is to be noted that when Dr Kennedy initially examined the plaintiff on 21 September 2008, he expressly states that he was of the opinion that there was no pre-existing psychological disorder.  When later seen on 1 October 2012, he diagnosed the plaintiff to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  In particular, he also expressed the opinion that the plaintiff had pre-existing personality difficulties with histrionic and borderline features.  Dr Leahey, the treating psychiatrist, rejected outright such opinion.

98      Curiously, notwithstanding the recent diagnosis by Dr Kennedy, he considered that the plaintiff was fit for her pre-injury employment.

99      I also note that when the pre-existing attendances on Dr Baglar and the attendances to the Hospital were put to Dr Leahey, he considered that it was “possible” that such were evidence of some degree of somatisation.  I do note that Dr Leahey added that one would have to be very careful of such a diagnosis and be sure that there is no organic basis for such complaints, and in any event, even if such was the case, it tended to confirm his diagnosis.  By this, I understood him to mean that her ongoing depression manifested itself in part, at least, by somatic symptoms in the neck and surrounding areas.

100     I might add that even if I were wrong in relation to there being a pre-existing condition which has been “aggravated” by the work injury, I consider that a comparison of “before” and “after” would suggest that there has been a dramatic change in the plaintiff whereas before she was a “go getter” and ambitious, she has been, according to her treating doctors, unable to work after ceasing work in February 2009 and has required ongoing psychological and psychiatric treatment.

101     Accordingly, I do find that as a result of “the injury”, the plaintiff has suffered, and continues to suffer, a mental or behavioural disturbance or disorder.

102     Issues arise as to whether that disturbance or disorder is “severe” and “permanent”.

103     I consider it appropriate to initially decide whether the plaintiff satisfies the requirements to obtain leave to claim “pecuniary loss earnings”.

104     In relation to the issue of pecuniary loss, s134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application, she “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”.  The measurement of the claimed loss of earning capacity, as described by paragraph (f), necessitates a comparison of two matters:

(a)      what the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and

(b)      the income that the plaintiff was earning or is capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).

105     In both cases, the income is limited to gross income from personal exertion and is to be annualised.

106     Section 134AB(38)(e)(ii) requires the plaintiff to establish that she will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.

107     Counsel for the defendant highlighted that the gross earnings for the plaintiff for the financial year ending 30 June 2005 was $321.00, for the financial year ending 30 June 2006, $23,775.00, for the financial year ending 30 June 2007, $10,764.00 and for the financial year ending 30 June 2008, $26,599.00.  Based on a 3 per cent increase for the ensuring three years, counsel for the defendant submits, fairly in my view, that the “without injury earnings” amount to $28,219.00.

108     Counsel for the plaintiff did not effectively contest such submission given his fundamental submission that the plaintiff has no capacity for employment now or into the future.

109     Accordingly, 60 per cent of $28,219.00 is $16,932.00 gross annually (or $325.60 per week).

110     After a consideration of all of the evidence, and bearing in mind the most recent opinions as to the capacity of the plaintiff (Dr Leahey, the treating psychiatrist; the medico-legal expert, Dr P Kornan, and the medico-legal psychologist, Dr Karamanos), I find that the plaintiff is presently incapable of performing any work.  The odd man out of recent times is the psychologist, Dr Kennedy.

111     Furthermore, I reject any submission that the plaintiff has failed to satisfy the requirements of s134AB(38)(g) of the Act.  Given my finding that she is presently totally incapacitated and for that matter, has been totally incapacitated since undergoing treatment with Dr Leahey, there is no residual capacity for her to seek employment.

112     The more critical issue is as to whether the plaintiff has discharged her onus in establishing that she will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.

113     After a careful consideration of all of the evidence, I have come to the view that the plaintiff fails in this respect.  Given the nature of her injury, which involves an element of anger persisting in relation to the defendant, I do consider that in the foreseeable future, a woman of thirty-five years of age who has the business background, the education and experience in a variety of jobs would be able to obtain some type of employment as a bookkeeper, florist or clerk which would not be demonstrable of a loss of earning capacity of 40 per cent or more.

114     In this respect, I am very mindful of the evidence of Dr Leahey that he considers that when proceedings are finalised, there is a real prospect of the plaintiff being encouraged to get back to some type of work.  Indeed, as made plain by him in his evidence, on at least two occasions during the course of his treatment, when the plaintiff returned from overseas trips she informed him that she felt much better and was intending to get on with her life but was subsequently “derailed” by the perceived actions of those in the WorkCover system.

115     I do consider that bearing in mind the modest “without injury earnings” and the potential to work in the foreseeable future as a bookkeeper ($950.00 per week), administrative assistant ($908.00 per week), a florist ($524.00 per week) or even a call centre operator ($770.00 per week) would all demonstrate that she would not permanently suffer a 40 per cent loss of earning capacity.  I do accept that given the nature of her condition, the chronicity of such condition and her ongoing symptoms, it is unlikely that she would have an unlimited capacity for employment such as existed prior to the injury.

116     Accordingly, the plaintiff fails in her claim for leave to sue for pecuniary loss damages.

117     After a consideration of all of the evidence, and perhaps with some reservation, I have come to the view that the plaintiff does succeed in establishing that she has a severe mental or permanent severe behavioural disturbance or disorder within the meaning of the Act.  Notwithstanding my comments about her potential capacity to perform some employment, I again acknowledge the evidence of Dr Leahey, who considered that there would be residual issues.  In particular, I repeat his evidence when he states:

“… It’s probably unlikely that she will ever leave this completely behind.  It has been a substantial part of her life, four years or more that she has been dealing with this, a sense of loss of a career that she was excited to embark upon.  There are other consequences such as the impact on her relationship with her husband, friends et cetera, that will take a long time to repair, if at all.  … ..”[69]

[69]T189, L8-17

118     I also note that Dr Leahey considers that the plaintiff will require medication into the foreseeable future.

119     I expressed my opinion above with some “reservation”.  I am cognisant that the plaintiff has travelled overseas, has been seemingly capable (with some assistance from her mother and husband) of looking after a baby, capable of driving, shopping and performing some housework.  However, in the circumstances of this matter, it is important, I believe, to bear in mind the lifestyle that the plaintiff led prior to the injury and her residual ongoing symptoms.  Again, it is to be stressed that such symptoms have extended for over four years on a reasonably constant basis and which give rise to problems on a day-to-day basis. 

120     After a consideration of all of the evidence and bearing in mind again the evidence of the treating psychiatrist, and to a lesser extent, Dr Paul Kornan (who highlighted the concept of people who are forceful, driven and self-confident who often are “destabilised” by a physical injury), I consider that the consequences of her likely ongoing psychiatric state to be “severe” within the meaning of the Act, notwithstanding my finding that given her age and background, it is likely that she will get back to some type of work in the foreseeable future.

121     Accordingly, I do find that the plaintiff has satisfied me that she have leave to bring common law proceedings for “pain and suffering damages” in respect of the “injury”.

Conclusion

122     Leave is given to the plaintiff to bring common-law proceedings in relation to “pain and suffering damages” in respect to injury on or about 30 May 2008 and thereafter, until February 2009, in the course of her employment with the defendant.

123     I will hear the parties on the question of costs.

ANNEXURE A

(1)The plaintiff tendered the following material:

Exhibit 1

·Affidavits of plaintiff sworn 19 March 2010 and 26 September 2012 at pages 7 to 22 Plaintiff’s Court Book (“PCB”)

·Affidavit of Onur Koken (the husband of the plaintiff) sworn 26 September 2012 at pages 23 to 25 PCB

·Affidavit of Nigrul Tercan (a sister of the plaintiff) sworn 26 September 2012 at pages 26 to 27 PCB.

Exhibit 2

·Medical reports of Dr Hakan Baglar dated 10 March 2009, 22 February 2010, 28 February 2011 and 15 October 2012 at pages 44 to 57 PCB

·Medical reports of Dr Richard Bittar dated 28 August 2008 and 9 May 2009 at pages 58 to 63 PCB

·Psychiatric reports of Dr W James Leahey dated 4 April 2010, 1 March 2011 and 30 September 2012 at pages 64 to 82 PCB

·Psychological report from Ms Semra Durmaz dated 14 November 2009 at pages 83 – 90 PCB

·Report of Ms Yvette MacMorland dated 15 April 2009 at pages 91 to 92 PCB.

Exhibit 3

·MRI scan of the cervical spine dated 3 June 2008 at pages 93 to 94 PCB.

Exhibit 4

·Report of psychiatrist, Dr P Kornan, dated 9 October 2012 at pages 95 to 102 PCB

·Report of psychologist, Mr John Karamanos, dated 10 October 2012 at pages 103 to 118 PCB.

(2)The defendant tendered the following material:

Exhibit A

·Bundle of medical notes from Dr Baglar, including a typed document dated 1 November 2006.

Exhibit B

·Bundle of clinical notes from the Northern Hospital.

Exhibit C

·A bundle of documents from the Northern Hospital in relation to various investigations undertaken by the plaintiff.

Exhibit D

·Medical report of Mr Clive Jones, orthopaedic surgeon, dated 4 September 2008 at pages 1 to 3 Defendant’s Court Book (“DCB”)

·Report of Mr Neil Sherburn, consultant physiotherapist, dated 16 December 2008 at pages 4 to 9 DCB

·Medical reports of Mr David Butterfield, general surgeon, dated 8 January 2009, 25 February 2009 and 28 June 2010 at pages 10 to 12 DCB

·Report of Dr John H Lloyd, consultant neuro-psychiatrist, dated 12 March 2009 at pages 13 to 19 DCB

·Report of Mr Peter Battlay, general surgeon, dated 12 March 2009 at pages 20 to 25 DCB

·Psychological reports of Dr S Kennedy dated 30 September 2009, 18 June 2010 and 3 October 2010 at pages 26 to 55 DCB

·Psychiatric report of Dr T Entwisle dated 16 November 2009 at pages 56 to 62 DCB

·Report of Mr David Brownbill, neurosurgeon, dated 24 November 2009 at pages 63 to 70 DCB

·Report of Mr T J Russell, general surgeon, dated 1 December 2009 at pages 71 to 75 DCB.

Exhibit E

·Various offers of suitable employment and return to work plans at pages 78 to 184 DCB.

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