Tham v Victorian WorkCover Authority (IKON Administration Pty Ltd)
[2024] VCC 936
•1 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-00870
| CHARLES THAM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 June 2024 | |
DATE OF JUDGMENT: | 1 July 2024 | |
CASE MAY BE CITED AS: | Tham v Victorian WorkCover Authority (IKON Administration Pty Ltd) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 936 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to both feet and psychological and psychiatric and psychological condition – anxiety disorder with depressed mood – disentanglement of consequences between physical and psychiatric injury – pain and suffering damages – loss of earning capacity damages – whether plaintiff has satisfied the statutory standard in respect of the serious injury application for physical injury and psychological/psychiatric injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The plaintiff’s application for serious injury certificate in respect of psychological and psychiatric injury is granted. The plaintiff has leave to bring proceedings to recover damages for both pain and suffering and loss of earning capacity in respect of the psychological/psychiatric injury. The plaintiff’s application in respect of the physical injury to his feet is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person with the assistance of an interpreter (Indonesian language) | - |
| For the Defendant | Mr A W Middleton with Ms K Popova | Hall & Wilcox |
HIS HONOUR:
1The plaintiff brings this application by Originating Motion dated 23 February 2023. The plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him in the course of his employment with IKON Administration Pty Ltd (“IKON”).
2In respect of the physical injury, the plaintiff seeks certification for both pain and suffering and loss of earning capacity in respect of his bilateral foot injury. There was no frank injury date nominated by the plaintiff concerning this injury. It was a course of employment claim.
3The plaintiff also alleges that he suffered a psychiatric injury as a result of the bullying and abuse he experienced in the course of his employment with IKON. The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity.
4The plaintiff gave evidence and was cross-examined with the assistance of an Indonesian interpreter.
5The plaintiff tendered the following exhibits in the hearing of both serious injury applications:
· Exhibit “A”, Royal Melbourne Institute of Technology Bachelor Degree Certificate (“Civil and Infrastructure”), awarded to him on 12 December 2007.
· Exhibit “B”, the Joint Court Book (“JCB”), pages 11-96, 147-155, 163-184, 193-220, 229-241, 364-373 and 466-543.
6The defendant tendered the following documents:
· Exhibit 1, Joint Court Book, pages 97-146, 156-162, 185-192, 221-228, 242‑363, 375-385 and 568-619.
7In the course of the proceeding, Mr Middleton, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff’s bilateral foot injury does not reach the standard of “at least very considerable”, as required under the legislation;
(b) the plaintiff must disentangle the consequences of the physical injury to his feet and the alleged psychiatric consequences arising from his employment with IKON;
(c) the psychiatric and psychological injury does not satisfy the statutory test of being “severe”;
(d) the plaintiff has the capacity to perform suitable employment and has not satisfied the loss of earning capacity to the extent of 40 per cent or more.
The statutory scheme
8The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
9The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than significant or marked”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1]See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
[2]Barwon Spinners (ibid) at paragraph [33]
[3] Supra
10I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
11The plaintiff was born in Indonesia and at the time of the hearing was almost forty-one years of age.[4]
[4]JCB 40
12The plaintiff was educated to Year-12 level in Indonesia.[5] The plaintiff commenced study for a Bachelor of Civil Engineering in Indonesia prior to coming to Australia.[6] In 2003, the plaintiff came to Australia for the first time in order to commence studies at the Royal Melbourne Institute of Technology in the course of civil engineering.[7]
[5]Transcript (“T”) 24
[6]T24
[7]T17
13The plaintiff completed his Bachelor of Engineering at the Royal Melbourne Institute of Technology in Civil and Infrastructure. The plaintiff was awarded his degree on 12 December 2007.[8]
[8]Exhibit “A”
14The plaintiff gave evidence that he returned to Indonesia after his graduation in engineering and worked for a period of time in that country. He then returned to Australia in 2014. The plaintiff commenced work with IKON as a cleaner in September 2015. On 25 November 2016, the plaintiff commenced work as a car cleaner for Hertz Australia Pty Limited (“Hertz”). The plaintiff worked at both of these jobs until he was injured while working with Hertz on 26 February 2017. At the time of the plaintiff’s injury at Hertz, he was on modified duties with IKON from 27 January 2017.[9]
[9]JCB 27
15The plaintiff ultimately had his employment with IKON terminated on 8 August 2017.[10] The plaintiff’s employment with Hertz was terminated on 25 August 2017.[11]
[10]JCB 27
[11]JCB 14
16The plaintiff has had two separate hearings in the Fair Work Commission in respect of his employer, Hertz.[12] The plaintiff also had litigation in VCAT in respect to a human rights claim against Hertz.[13] The plaintiff has engaged in complex and convoluted claims arising out of his employment with Hertz.
[12]JCB 560-599
[13]JCB 600-619
17The plaintiff has not worked since August 2017.[14] The plaintiff has been in receipt of Centrelink payments which he describes as “DSP”.[15] It was unclear when the plaintiff was placed on the Disability Support Pension, but he has been in receipt of it for a number of years. The plaintiff also receives rental assistance from Centrelink.[16]
[14]T73
[15]T73
[16]T73
The injury with IKON
18The plaintiff commenced employment with IKON as a cleaner in September 2015.[17] The plaintiff claims that, in the course of his employment with IKON, he was constantly bullied, harassed and victimised, and ultimately was subjected to an unfair dismissal in August 2017. The plaintiff also alleged that the nature of the work caused him to have a bilateral foot injury due to the amount of distance he had to cover in respect of the various cleaning sites at Crown Casino.
[17]JCB 23
19The plaintiff’s claim is that the psychological/psychiatric injury arises from the bullying and harassment he was subjected to at his workplace. The plaintiff alleges that the foot injury was a result of the nature of work and the failure by the supervisors at IKON to change his pattern of work to ameliorate his foot problems.
Foot injury
20The plaintiff has undergone a number of radiological examinations to determine the nature and diagnosis of his right and left foot injury. On 23 December 2016, the plaintiff underwent an x-ray and ultrasound of his right foot. The conclusion of the ultrasound of the plaintiff’s right foot was as follows:
“1. No evidence of plantar fasciitis.
2. Inflammatory change with adventitial bursitis at the plantar aspect of the right foot identified, corresponding to the area of interest.
3. No further significant findings.”[18]
[18]JCB 49
21The x-ray result conclusion was:
“1. No recent bony abnormality or malalignment of the right foot.
2. No destructive bony change or abnormal periosteal reaction is noted.
3. If there is still a clinical concern of stress reaction, nuclear medicine bone scan or MRI examination of the right foot region can be performed for further assessment.”[19]
[19]JCB 49
22On 15 June 2017, the plaintiff underwent a further ultrasound of his right foot. The conclusion from that examination was:
“1. Normal appearing plantar fascia.
2 Mild intermetatarsal bursitis is noted within the 1st/2nd, and 4th/5th metatarsal bases.
These would be amenable to ultrasound guided steroid injection if clinically indicated.”[20]
[20]JCB 52
23On the following day, the plaintiff had an ultrasound of his left foot and heel. The conclusion from that examination was as follows:
“Plantar fasciitis.
Ultrasound guided cortisone injection to this region may be of therapeutic benefit if clinically indicated.”[21]
[21]JCB 53
24On 8 January 2018, the plaintiff attended for an MRI scan of his right foot. The findings of that examination were as follows:
“1. Findings suggest mild changes of intermetatarsal bursitis between the heads of the 1st and 2nd metatarsals. If this corresponds to the site of clinical concern, this would be amenable to ultrasound guided steroid injection if clinically indicated.
2. No other significant abnormalities are detected in the foot.”[22]
[22]JCB 57
25An MRI scan of the left foot was performed on 7 June 2018. The conclusion from that examination was as follows:
“1. Mild 1st MTP joint synovitis and a small joint effusion. Small subcortical 1mm degenerative cyst at the plantar aspects of the 1st metatarsal head.
2. No evidence for intermetatarsal bursitis or Morton’s neuroma. No destructive process seen.”[23]
[23]JCB 58
26The plaintiff has not had any further radiological examinations of either of his feet since June 2018.
Medical reports in respect of the foot injury
Dr W C Chen, general practitioner
27Dr Chen from the Richmond North Medical Clinic was the referring doctor for the first of the radiological examinations performed on 23 December 2016. There was no report from Dr Chen in respect of the foot injury to the plaintiff. The only report from Dr Chen tendered in this case was relating to a referral for psychological treatment of the plaintiff.[24]
[24] JCB 61
Dr Hiwa Sabir, general practitioner
28The plaintiff was referred to Dr Sabir by the insurers for the employer. He prepared a report dated 1 August 2017. In his report, Dr Sabir noted as follows:
“On examination he was tender at plantar fascia insertion at heel on both sides L > R., also tender along sole of forefeet both R & L.
[Ultrasound] reported as L Plantar fasciitis and bursitis over R1/2 Metatarsal and 4/5th Metatarsal.
Dr Mai advised of local cortisone injection under [ultrasound] guidance, the radiologist seems happy to perform that.I agree with a trial of cortisone injection if no improvement then podiatrist/Orthotic advice recommended.”[25]
[25]JCB 66
29The evidence in this case is that IKON’s insurer would not authorise the cortisone injection to the plaintiff’s feet.
Mr Minh Mai, general practitioner
30In respect to the injury to the plaintiff’s feet, Dr Mai prepared a report dated 18 October 2017. This report was directed to the Accident Compensation Conciliation Service and the insurers for the employer. Dr Mai’s diagnosis for the plaintiff’s condition was bilateral metatarsalgia. Dr Mai noted that the plaintiff first attended to him on 2 April 2017. The plaintiff informed Dr Mai that he had been to a podiatrist and had orthotics fitted in his shoe. The original complaint of metatarsalgia was made on 8 December 2016. In Dr Mai’s opinion, the metatarsalgia was directly related to the plaintiff’s employment with IKON and he recommended ultrasound-guided cortisone injections to both feet.[26]
[26]JCB 69-70
Mr Daniel Goldbloom, foot and ankle orthopaedic surgeon
31Mr Goldbloom prepared two reports, dated 9 January 2019 and 14 April 2021.
32In his first report, dated 9 January 2019, Mr Goldbloom noted his findings on examination as follows:
“… I note that he has bilateral mild planovalgus feet [flat feet]. He had a negative Silfverskiold test. On the left his major area of tenderness was under the third metatarsal head and in the third intermetatarsal space but he did not have an irritable third MTP joint and had a negative Lachman test. He had a negative mulder click. The right side was largely nontender.”[27]
[27]JCB 79
33Mr Goldbloom’s recommendation was as follows:
“At this stage I have suggested he retry the metatarsal domes/arch supports for a period of three months. If he still has ongoing pain then we would need to commence a series of updated scans as well as selective injections to try to identify the clear diagnosis.”[28]
[28]JCB 79
34In his report dated 14 April 2021, Mr Goldbloom noted that the plaintiff was certainly tender under the lateral sesamoid. He noted there was no actual swelling in that area. Mr Goldbloom observed that the plaintiff was tender in the first intermetatarsal space and he was also tender under the third metatarsal head, much like the last time.[29]
[29]JCB 87
35Mr Goldbloom recommended a further repeat MRI scan to look for changes within the lateral sesamoid so that it could be used to determine what he described as a “diagnostic conundrum”.[30]
[30]JCB 87
36The final report from Mr Goldbloom was dated 30 April 2021, and it set out the findings after the MRI scan had been performed. He noted that there was nothing of concern shown in the MRI scan. Mr Goldbloom could not explain what was the cause of the pain as a result of the MRI examination.[31]
[31]JCB 88
Dr Stephen Williams, general practitioner
37Dr Williams is the plaintiff’s present general practitioner. In a letter addressed to the Accident Compensation Conciliation Service dated 10 August 2022, Dr Williams set out the following in respect of the claimed foot injury:
“… [The plaintiff] suffers from bilateral metatarsalgia following injuries to his feet at work.
Treatment for his feet has consisted of relative rest, analgesia, ultrasound-guided steroid injection, physiotherapy and podiatry including orthotics and insoles.
He has also attended an orthopaedic specialist, Mr Daniel Goldbloom, most recently in May 2021, who was unable to reach a firm diagnosis or recommend a specific management strategy.
Unfortunately, … [the plaintiff’s] foot pain is chronic and has not responded to the above measures.
A recent request from me for repeat MRI scans of his feet seems not to have been approved to date.”[32]
[32]JCB 95
38At that time, the plaintiff had no capacity for any employment due to his foot condition.
Dr John Wilson, occupational physician
39Dr John Wilson examined the plaintiff on behalf of the insurer for IKON. He prepared a report dated 23 January 2017. In respect of the injury to the plaintiff’s feet, Dr Wilson reported as follows:
“I believe the … [plaintiff] is experiencing a metatarsalgia which is in part contributed to by the need to be walking all day plus the additional load of the vacuum cleaner. I do not believe the metatarsalgia is a long-term problem and I expect that it will settle within a few days if he is taken out of the particular environment.
It is a problem for individuals with flat feet finding steel-capped boots that are suitable to accommodate their deformity, or alternatively in a situation where they were to be provided with orthotics.
The first move in managing this man’s situation would be to have him doing duties other than with the mop and bucket, where he can safely wear sneakers or other soft shoes, and to allow him to purchase over-the-counter orthotics.”[33]
[33]JCB 101
40Dr Wilson’s diagnosis was that the plaintiff suffered from metatarsalgia of both feet. He was satisfied that the condition to the plaintiff’s feet was employment related. In his conclusion, Dr Wilson stated as follows:
“Presently there does not seem to be a plan of management in place. I have outlined a possible management plan that may be acceptable to the employer which allows the … [plaintiff] to wear soft shoes. Regarding further management, there may be a case for referring the … [plaintiff] for a podiatrist opinion.
The … [plaintiff] presently has capacity to perform his normal duties.”[34]
[34]JCB 103
Associate Professor Anthony Buzzard, general surgeon
41Associate Professor Buzzard prepared a report for the insurers of IKON, dated 14 December 2021. On examination, Associate Professor Buzzard found the plaintiff’s feet and legs were normal. He noted that the plaintiff wore insoles in both shoes. In general terms, it was a normal assessment of the plaintiff’s foot injury.[35]
[35]JCB 188
Medical Panel
42A Medical Panel (“the Panel”) comprising of Dr Caroline Brand, rheumatologist, Mr John Skelley, orthopaedic surgeon, and Dr Robert Shields, psychiatrist, issued a Certificate of Opinion dated 14 June 2022. In relation to the bilateral metatarsalgia injury, it is accepted by the Panel that the plaintiff had the injury. The findings were as follows:
“The Panel concluded that … [the plaintiff] is suffering from persistent bilateral metatarsalgia, worse on the right side, in the setting of constitutional Pes Planus of both feet [flat feet], relevant to the accepted physical injuries.”[36]
[36]JCB 208
Dr Terence Saxby, orthopaedic surgeon
43Dr Saxby prepared a report for the defendant solicitors dated 24 October 2023. In respect to the plaintiff’s claimed foot condition, Dr Saxby stated that the plaintiff suffered the condition of metatarsalgia, but no specific cause is identified; that is to say, he has pain in his feet, but there is no obvious abnormality on examination, and radiology suggests there may be an element of plantar fasciitis.[37] Dr Saxby noted the plaintiff had not worked for six years, however he continued to complain of ongoing pain in the feet.[38] Finally, Dr Saxby noted a diagnosis of plantar fasciitis was made on investigations, but the clinical examination is not consistent with that at this time.[39]
[37] JCB 226
[38]JCB 225
[39]JCB 226
44On the basis of all the medical evidence and in particular that of Dr Saxby, who is the most recent reporter, I am not satisfied that the plaintiff has proven that the consequences for pain and suffering or loss of earning capacity have been established in this case. I accept the plaintiff, who has flat feet, may, from time to time, have pain in his feet. The plaintiff has, and continues to, wear orthotics in his shoes.
45The plaintiff’s application for serious injury in respect of the bilateral foot injury alleged to have occurred during the course of his employment with IKON is dismissed.
Psychiatric/psychological injury as a result of employment with IKON
46The plaintiff alleges he was harassed and bullied in the course of his employment with IKON by his supervisors. The instances of bullying and harassment arose from the manner in which he was managed, the direction he received in respect of his sites of work and the reaction or direction to him by his supervisors when he made a complaint about sexual assault by members of the public while he was in the course of his employment. I accept the plaintiff’s evidence that these matters occurred in the manner he described.
47The plaintiff has been prescribed, and taken, medication to assist with the management of his anxiety disorder and depressive symptoms. He continues to do so. I accept that the plaintiff’s condition satisfies the statutory definition of being a severe consequence for him. The plaintiff, prior to the events of harassment and bullying, was undertaking two jobs at the same time. He is now unable to work due to his psychological and psychiatric condition. The plaintiff has not worked since August 2017 and based on the medical evidence, I find the plaintiff will be unable to work for the foreseeable future due to his psychiatric condition.
Medical opinions
Dr Nylanda Ma, psychologist
48The plaintiff first attended upon Dr Ma in April 2017. The plaintiff reported that he was experiencing harassment and bullying at his job for IKON as a cleaner. Dr Ma noted that the plaintiff was prescribed and taking, Endep, which was a strong antidepressant. Her diagnosis at that stage was that he was suffering from a Generalised Anxiety Disorder with secondary depressive symptoms.[40]
[40]JCB 62
Rosemary Graham, clinical psychologist
49Ms Graham prepared a report dated 28 July 2017. Ms Graham noted, in that report, that the plaintiff was experiencing high levels of anxiety. This report is confirmation that the plaintiff was receiving ongoing psychological assistance throughout 2017, up until the termination of his employment on 7 August 2017.[41]
[41]JCB 65
Dr David Baron, consultant psychiatrist
50The plaintiff was referred to Dr Baron in 2017 by his general practitioner, Dr Williams. In a report date 13 October 2017, Dr Baron sets out a number of issues involved in the plaintiff’s psychological and psychiatric conditions. Those conditions included his dispute with Hertz over his shoulder injury, his dispute at the place of employment with IKON, and the harassment of him, and his matrimonial situation. Dr Baron diagnosed the plaintiff as suffering anxiety and depressive symptoms. He prescribed a low dose of Cipramil to lessen the anxiety symptoms suffered by the plaintiff.[42]
[42]JCB 67
51Dr Baron prepared a further report, dated 5 November 2017, for the Accident Compensation Conciliation Service. In that report, he diagnosed the plaintiff as suffering from anxiety and depression due to injuries and events at his place of employment. In Dr Baron’s opinion, the psychiatric diagnosis appears to be directly related to employment. Significantly, Dr Baron stated there was no pre-existing psychiatric condition.[43]
[43]JCB 72
52Dr Baron prepared two further reports, dated 30 November 2017 and 4 January 2018, expressing a hope that the plaintiff could engage in further employment and consequently improve his psychiatric condition.
53In his report dated 23 May 2018, Dr Baron stated that he had discontinued the prescription of Cipramil due to the side effects. The plaintiff was then advised to take Valium to alleviate his anxiety symptoms.[44]
[44]JCB 77
Roberta Gottardo, psychologist
54Ms Gottardo prepared two reports, dated 11 July 2021 and 20 February 2022. Ms Gottardo took a history from the plaintiff, setting out that he had been bullied at his place of employment between September 2015 and February 2017, both verbally and psychologically, by two supervisors at his work. Ms Gottardo assessed the plaintiff as suffering from generalised anxiety symptoms and features of Major Depressive Disorder. Her formulation, as she described it, was the plaintiff still presents with severe depression, severe anxiety and Post-Traumatic Stress Disorder. She noted that the –
“… ongoing bullying and harassment experiences have had a significant impact on his mental health and are still causing instability in his social and vocational functioning.”[45]
[45]JCB 91
55In her report dated 20 February 2022, Ms Gottardo stated:
“I believe that workplace bullying had a significant impact on … [the plaintiff’s] psychological conditions. He did not mention that his psychological issues were caused by Bilateral Metatarsalgia.”[46]
[46]JCB 93
56It was Ms Gottardo’s opinion that the plaintiff, at that stage, was still capable of returning to some form of work.[47]
[47]JCB 93
Dr Stephen Williams, general practitioner
57Dr Williams prepared a report dated 10 August 2022 for the Accident Conciliation Service. In respect of the plaintiff’s psychological and psychiatric condition, Dr Williams stated as follows:
“… [The plaintiff] also suffers from anxiety & depression related to workplace stresses.
Treatment for his anxiety & depression has consisted of supportive counselling, tricyclic and other antidepressants and psychological therapy. He has been intolerant of a number of antidepressants.
He also attended a psychiatrist, Dr David Baron. Further psychiatric assessment may be of value for him.”[48]
[48]JCB 95
58In his opinion, the plaintiff had no capacity for employment at that time due to his compensable psychological injuries.[49]
[49]JCB 96
Dr Timothy Entwisle, consultant psychiatrist
59Dr Entwisle examined the plaintiff for the insurers of the defendant. He prepared a report dated 24 January 2017. Dr Entwisle noted that the plaintiff was claiming for a right foot injury including a mental health injury. He noted that the plaintiff complained of the supervisor harassing and bullying him, causing the claimed injuries. The claimed injuries at that stage included psychiatric injury.[50] Dr Entwisle noted the plaintiff had no prior psychiatric conditions. Dr Entwisle’s diagnosis was:
“… [The plaintiff’s] symptoms of stress, headaches, sleep disturbance and anger do not rise to clinical significance.
…
… [The plaintiff] does not have a psychiatric condition. He is not having any psychiatric or psychological treatment.”[51]
[50]JCB 106
[51]JCB 109
60At the time of the report by Dr Entwisle, the plaintiff had not been referred to the psychiatrist, Dr Baron. He had subsequently received treatment from Dr Baron.
61Dr Entwisle prepared a further report dated 4 May 2017. In that report, he noted the plaintiff had been prescribed Endep in August 2016 by his general practitioner. The plaintiff was also receiving psychological counselling and psychotherapy from Dr Ma.[52]
[52] JCB 123
62In Dr Entwisle’s opinion, the plaintiff did not have symptoms which are of a sufficient level to constitute a diagnosable mental disorder or illness. He went on to state that the plaintiff had a capacity for full-time pre-injury duties at his workplace or alternative workplace.[53]
[53]JCB 125
63Dr Entwisle’s opinion is an “outlier opinion”. The other medical practitioners, including psychologists and psychiatrists who have examined the plaintiff, accept he has the conditions of anxiety and depression. They have treated him for it.
Dr John King, psychiatrist
64The plaintiff was sent to be examined by Dr King on 14 September 2017 for medico-legal purposes by the insurer for IKON. The plaintiff attended, but there was no interpreter organised to conduct the assessment. The plaintiff wanted to continue with the assessment, but Mr King cancelled it due to the absence of the interpreter. Consequently, there was no assessment by Dr King and there was never a re-arrangement made for such an independent medical examination of the plaintiff.[54]
[54]JCB 137
Associate Professor Shashjit Varma, consultant psychiatrist
65Associate Professor Varma conducted the clinical assessment of the plaintiff on 8 November 2021 via Telehealth interview. The report, dated 19 November 2021, was a result of that interview. Associate Professor Varma noted the plaintiff was receiving treatment from his general practitioner and been prescribed Cipramil, 20 milligrams per day, and Valium.[55] He noted the plaintiff had no past psychiatric illness. Associate Professor Varma diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depression, secondary to workplace bullying and harassment and, in a small way, the foot injury. He noted that the prognosis for the plaintiff was, from a mental point of view, fair. He noted the plaintiff was continuing to take Cipramil, 20 milligrams per day, and Valium.[56] In Associate Professor Varma’s opinion, the plaintiff’s employment was a significant contributing factor to the mental injury in two ways; one was secondary to the foot injury and the second, primary mental injury, was when he was abused and bullied at work.[57]
[55]JCB 177
[56]JCB 180
[57]JCB 180
66The plaintiff returned to Associate Professor Varma for clinical assessment on 15 March 2022. Associate Professor Varma prepared a report dated 24 March 2022. Associate Professor stated in his report as follows:
“Mentally he is in bad shape. He is severely anxious, depressed, has low self-esteem and self-confidence, ideas of hopelessness and worthlessness and thoughts of suicide all the time. He has flashbacks of the bullying and harassment and has nightmares. He is a very shattered man.”[58]
[58]JCB 197
67In Associate Professor Varma’s opinion, he stated:
“I do not expect the … [plaintiff] to recover within the typical recovery timeframe. It has already become a chronic condition. It has been going on for almost six years and his condition is going downhill.”[59]
[59]JCB 197
68On the issue of the plaintiff’s capacity to work, Associate Professor Varma stated as follows:
“The … [plaintiff] does not have a current capacity for pre-injury duties and hours either with the pre-injury employer or an alternate employer.”[60]
[60]JCB 198
69He went on to state: “The … [plaintiff] does not have a current work capacity.”[61]
[61]JCB 198
70Associate Professor Varma noted that the plaintiff had been taking Zoloft, 100 milligrams per day, and:
“… was seeing a psychologist, but now he cannot afford to see a psychologist as the insurance is not paying him. Ideally, he should be seeing a psychiatrist as well as a psychologist and be on supervised antidepressant medication.[62]
[62]JCB 199
71Associate Professor Varma was asked to provide a supplementary report considering the foot injury and the mental disorder arising from the foot injury separately. He prepared a supplementary report dated 6 April 2022. In Associate Professor Varma’s view, relating only to the foot injury and the psychological aspects of that foot injury, the plaintiff did have a work capacity.[63]
[63]JCB 202
72I accept that Associate Professor Varma’s opinion and main concern is that the plaintiff’s psychological and psychiatric condition is most significantly related to the harassment and bullying aspects of the plaintiff’s employment and that the psychological overlay from the foot injury is a minor component. I find, based on Associate Professor Varma’s opinion, the plaintiff does not have a current work capacity due to his psychiatric condition resulting from bullying and harassment at work.
The Medical Panel
73The Panel examined the plaintiff on 20 May 2022. The Panel was comprised of Dr Caroline Brand, rheumatologist; Mr John Skelley, orthopaedic surgeon and Dr Robert Shields, psychiatrist. The Panel noted that the plaintiff was being prescribed medications by Dr Williams. The medications were the antidepressants, Sertraline, 100 milligrams; Temazepam for sleep and 5 milligrams of Diazepam.[64] The Panel stated very clearly that it disagreed with Dr Entwisle’s conclusion that the plaintiff did not suffer from a psychiatric condition. The Panel stated as follows:
“… The Panel disagrees with Dr Entwisle’s conclusion based on its own assessment of 20 May 2022.”[65]
[64]JCB 212
[65]JCB 214
74In the Certificate of Opinion, the Panel stated:
“The Panel nevertheless did conclude that … [the plaintiff] is suffering from an adjustment disorder with mixed anxiety and depressed mood, with features of traumatisation, relevant to the accepted psychological injury, but considers that his description of flashbacks is more consistent with intrusive recollections than true flashbacks.”[66]
[66]JCB 216
75The Panel found that there was some psychiatric impairment secondary to the accepted physical impairment of the foot injury. The Panel then went on to say that the majority of the psychiatric impairment was related to the unrelated psychological injury, being his experience of bullying and harassment. The Panel noted that the plaintiff’s condition is unlikely to improve in the foreseeable future and therefore concluded a degree of psychiatric impairment is permanent within the meaning of the Act.[67]
[67]JCB 216
Dr Saji Damodaran, consultant psychiatrist
76The defendant solicitors referred the plaintiff to be examined by Dr Damodaran on 12 December 2023. Dr Damodaran’s report dated 2 January 2024 was tendered in this case. The plaintiff attended the interview with Dr Damodaran in the company of an interpreter. In his report, Dr Damodaran stated that:
“… It was noted that the 10% psychiatric impairment from an unrelated injury/cause was playing a part in the current impairment. This unrelated injury was related to his employment with Hertz.”[68]
[68]JCB 237
77This statement is incorrect. The 10 per cent referred to by the Panel referred to the harassment and bullying which occurred at the employment with IKON.
78Later in his report, Dr Damodaran stated:
“He was also working on a part-time basis for Hertz Australia as a cleaner. He alleged that he was physically injured, resulting in bilateral metatarsalgia and also he was emotionally affected by what he described as the bullying, harassment, increasing workload as well as sexual harassment and sexual assault.”[69]
[69]JCB 238
79This statement is clearly incorrect. The allegation in respect of foot injuries, bullying, sexual assault and harassment are clearly to do with the plaintiff’s employment with IKON. Dr Damodaran had the history of where these events occurred all wrong.
80Nevertheless, in Dr Damodaran’s opinion, the plaintiff is suffering from:
“… persistent depressive disorder, along with anxiety disorder not otherwise specified as he has a combination of generalised anxiety, social anxiety and panic symptoms. He has a significant sense of helplessness and he has a very guarded prognosis. He has no current capacity for any meaningful employment.[70]
[70]JCB 239
81Dr Damodaran further stated:
“From a psychiatric perspective, … [the plaintiff] is currently not capable of undertaking suitable employment.”[71]
[71]JCB 240
82Associate Professor Varma and Dr Damodaran agree that the plaintiff has no capacity for work. The plaintiff’s condition has deteriorated over time due to a lack of psychological treatment and also ongoing psychiatric treatment. This is due to a lack of funding. The initiating events for the plaintiff’s psychiatric condition relate to his employment with IKON, where he was subjected to harassment and bullying by his superiors. I find, based on the evidence in this case, that the plaintiff’s condition of anxiety and depression is permanent, in the sense that it is for the foreseeable future. Both Associate Professor Varma and Dr Damodaran state that the plaintiff has no capacity for employment.
83The fact the plaintiff has no capacity for employment when, prior to the injury with his employers he was capable of performing full-time employment with IKON and part-time employment with Hertz. The loss of ability to work is a severe impact on the plaintiff’s life, and meets the statutory test for “serious injury” as a result of psychiatric/psychological injury arising from his employment with IKON. The plaintiff’s inability to work is for the foreseeable future, based on the medical opinions and the plaintiff’s evidence.
84The plaintiff is granted leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity in respect of the psychiatric injury he has suffered in the course of his employment with IKON.
85I shall hear from the parties on costs.
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