Thomas v Shanga Pty Ltd
[2014] VMC 27
•20 NOVEMBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. D12134926
| STEPHEN THOMAS | Plaintiff |
| v | |
| SHANGA PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10, 11, 12 & 13 NOVEMBER 2014 |
DATE OF DECISION: | 20 NOVEMBER 2014 |
CASE MAY BE CITED AS: | THOMAS v SHANGA PTY LTD |
REASONS FOR DECISION
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Catchwords: i. Notice of rejection of claim for payment of dental treatment expenses.
ii. Notice of termination of weekly payments on 22 December 2012 on grounds
worker has a current work capacity.
iii. Notice restricting entitlement to payment of psychological & psychiatric
treatment expenses.
iv. Failure to make a decision regarding request for payment of inpatient
psychiatric treatment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Ryan | J N Zigouras & Co |
| For the Defendant | Mr S Jurica | IDP Lawyers |
HIS HONOUR:
1 Mr Thomas is 52 years of age and was employed as a Portfolio Manager with the defendant from January 2010. His duties required him to manage 83 buildings across Melbourne on behalf of owners corporations which included arranging insurance, dealing with administration issues which included organising Annual General Meetings. He suffers from an anxiety/depressive condition due to issues that occurred in the course of his employment which has caused him to be incapacitated for his pre-injury employment since 12 July 2010.
2 Mr Thomas lodged a workcover claim on 29 September 2010 for which liability was accepted by Allianz. He remained in receipt of weekly payments of compensation until 22 December 2012 when they were terminated by Allianz on the grounds that he had received 130 weeks of weekly payments and had a current work capacity. In particular, it was alleged that he had the capacity to return to work as either a Customer Clerk, General Clerk, Mail Clerk, Truck Driver, Forklift Driver or Excavator Operator.
3 By way of a Further Amended Statement of Claim dated 11 November 2014, Mr Thomas seeks orders from the court relating to;
a. a Notice dated 22 August 2012, whereby the defendant rejected a claim for dental treatment expenses totalling $17,849.52c on the basis that they were not reasonable, necessary or related to his accepted work injury;
b. a Notice dated 18 September 2012, terminating weekly payments from 22 December 2012 on the grounds that he had a current work capacity;
c. a Notice dated 11 February 2014, restricting his entitlement to medical treatment expenses other than for general practitioner consultations, chemist expenses, psychological treatment once per fortnight and psychiatric consultations once every 6 weeks;
d. a failure to make a decision concerning a request made by Dr Mordia, treating Psychiatrist on 4 September 2014, to fund his admission as a private inpatient to the Wyndham psychiatric clinic in Werribee.
4 The defendant in its closing submissions contended that the court does not have jurisdiction to determine its liability in relation to the claim for private inpatient funding at the psychiatric clinic as it has only recently received a medico legal report from Dr Pokharel, Consultant Psychiatrist, who assessed Mr Thomas on its behalf on 30 October 2014 and was in the process of making a decision regarding the request.
5 The court heard evidence from Mr Thomas, Dr Kazi, treating General Practitioner and Dr Mordia, treating Psychiatrist. The parties tendered numerous documents including Vocational Assessment reports, medical records and reports.
6 Mr Thomas gave evidence that whilst performing his duties he believed that he uncovered evidence that his employer had been stealing a significant amount of money from its clients and committed GST fraud. He reported his suspicions to relevant government agencies. He described himself as a “whistleblower”. He said that following his actions he received threats, bullying, undermining and intimidation by his employer which culminated in him ceasing work on 12 July 2010.
7 Mr Thomas told the court that he has received treatment from Dr Kazi, Mr Pirotta, Psychologist and Dr Mordia. He said that he is currently prescribed medication in the form of 50 mg of Valdoxan, an anti depressant, 100 mg of Seroquel to help him sleep, Diazepam as a tranquiliser and Mobic for a condition of plantar fascitis. Mr Thomas told the court that he does not believe that he would be capable of performing work as a customer services clerk, general clerk, mail clerk, truck driver, forklift driver or excavator operator as suggested by Ayres Management in their reports dated 17 September 2012 and 2 October 2012. He said that he does not believe that he is fit to return to any form of employment at present and stated; “I would not employ me”.
8 Mr Thomas described his current symptoms as being; constant anxiety, shakes, sleep apnoea (with an average of 3 hours uninterrupted sleep each night), drowsiness, chronic fatigue, plantar fascitis, dermatitis on his hands, toes and arms, gingivitis, regular headaches, fidgety, limited concentration, lacking in confidence, delayed reactions and significant weight gain (over 40 kg) since ceasing work. He told the court that Allianz have paid for most of his treatment expenses including a CPAP machine for his sleep apnoea, treatment for his plantar fascitis and gym membership. Mr Thomas said that his condition has deteriorated in recent times and that he has become suicidal hence the request by his psychiatrist for payment of his admission to a private facility. He told the court that in late October he was admitted to Burnside Prevention and Recovery Care facility which is a part of Mercy Mental Health public system because of a deterioration in his condition where he “went downhill”, experienced “very dark days” and was “very sad”.
9 Mr Thomas gave evidence that notwithstanding the nature and extent of his condition he has been able to perform voluntary work as a Scout leader between 2012 and January 2014. He said this occupied 2 hours one day each week organising activities for the Scout group. He said that he ceased his involvement with the scouts in early 2014 because of internal politics and others undermining his role. He also told the court that since ceasing work he has also been able to complete various courses albeit with some difficulty at times, particularly when subjected to confrontation. He said that he has completed courses which include; Construction Induction Training 29 November 2012; Certificate II in Warehousing Operations 12 December 2012; Certificate II in Civil Construction 13 December 2012; First Aid 13 June 2013; Certificate III in Civil Construction Plant Operations 18 June 2013; and a Certificate II in General Education for Adults. He said that some of these courses also involved completion of Assessment Task Portfolios involving; Wheel Front End Loader Operations; Excavator Operations; OHS Policies and Procedures; Plan and Organise Work; Communications in the Workplace; Handling Resources and Infrastructure Materials and Safely Dispose of Non Toxic Materials; Identify, Locate and Protect Underground Services; Carry Out Manual Excavation; Read and Interpret Plans and Specifications; Drain and Dewater Civil Construction Site; Spread and Compact Materials Manually; Carry Out Basic Levelling; Erect and Dismantle Temporary Fencing and Gates; Enter and Work in Confined Spaces; Organise Receival and Despatch Operations; Repair Potholes; and, Carry Out Concrete Work.
10 Mr Thomas told the court that after ceasing employment with the defendant he was approached by two other employers in late 2010 and early 2011 to become their Manager, one of which involved a salary package of $109,000, but he could not accept their offers as he was “not in a good place” at the time. He said that he is “much worse” now.
11 In cross examination, Mr Thomas told the court that he is computer literate, has a car licence, forklift licence and heavy rigid truck licence. He agreed that he has an extensive work history including working in sales, in the scaffolding industry, as a self employed truck driver who employed others and as a private investigator for a period of 13 years where he also employed more than 6 people. He agreed that he currently holds licences to operate an excavator, bobcat, front end loader, water cart and roller, has a First Aid Certificate and a Traffic Spotters card. He also agreed that he has had numerous discussions with his treating doctors since ceasing work about retraining and being able to return to work but his condition has not allowed him to do so. He said that the various courses he did in 2012 and 2013 involved attending classes 3 days a week over a period of 8 weeks and the Assessment Task Portfolios were completed during the same period. He told the court that the Assessment Tasks were relatively easy to complete as it simply required written answers to questions asked on the information already provided without any research required. He said that it did not require much concentration to complete those tasks. He disputed the suggestion that his completion of the courses and assessment tasks demonstrate that he has the ability to perform work 3-4 hours per day 5 days a week.
12 Mr Thomas gave evidence that he has not looked for work because he does not believe he would be able to perform any work on a regular basis due to his anxiety, his fear of breaking down and being unable to cope with confrontation. He also said that he could not cope with the expectation that would be placed on him to perform. He disagreed that he is not motivated to return to work and said that he would like to return to work one day as he is a “bit too young to be put out to pasture”. He said that he will return to work when he is fit to do so and disagreed that it will occur when his litigation is over. He agreed that he could perform most but not all of the duties required as a General Clerk as set out in the Vocational Assessment reports. He also agreed that his condition has led to marital and financial issues, that his wife suffers from depression and that he and his family do want to return to the Gold Coast in the future. He agreed that he has also had difficulties with his teenage daughter which has contributed to his anxiety/depressive condition.
13 Mr Thomas agreed that he has had significant dental work performed prior to his work injury and that he was previously admitted to the Burnside facility in May 2012, for psychiatric treatment which he said was beneficial for him.
14 In re-examination, he disputed that he currently possesses the transferable skills set out in the report from Ayres Management which stated he has; good time management skills; good organisational skills, business management skills, strong negotiation skills and good interpersonal skills.
Medical Evidence
15 Dr Kazi gave evidence and his records and numerous medical reports prepared by him were tendered. The records reveal that he first saw Mr Thomas with symptoms of anxiety and depression on 12 July 2010 and that he referred him for treatment to Mr Pirotta, Psychologist, Dr Mordia, Psychiatrist and Dr Hunt at the Western Respiratory and Sleep Clinic. The records also reveal he initially prescribed Diazepam and Lexapro and that Mr Thomas developed panic attacks, became morbidly obese and developed sleep apnoea as a result. He opined in June 2012 that dental treatment may also be required as part of his sleep apnoea treatment. Dr Kazi also reported in June 2012 that he was prescribing Advantan due to a dermatitis condition that Mr Thomas had developed to his palms and soles of his feet and left sided plantar fascitis, Efexor, Mobic and Seroquel. In December 2012, he opined that Mr Thomas was unfit for all work. He also recorded that Mr Thomas struggled with the courses he was trying to complete. In a report dated 16 May 2014, he opined that the taste of blood in his mouth and gingivitis were early complaints and likely related to stress. He diagnosed at that time that Mr Thomas remained unfit for any work because of moderate to severe depression and anxiety and that it was unlikely he would be able to return to work in the near future due to his lack of progress over the last 4 years. The records of his last attendance on 13 September 2014 indicate that Mr Thomas was still experiencing panic attacks, poor sleep with early morning wakening, depressed mood, low self esteem and suicidal thoughts.
16 In evidence, Dr Kazi told the court that there has been a decline in Mr Thomas’s condition in recent months and that it is appropriate for him to receive inpatient treatment and that his prognosis is poor. He opined that his prospects of returning to work in suitable employment is also poor. In cross examination, Dr Kazi agreed that other issues including his wife’s depression, marital issues, troubles with Centrelink and financial hardship were contributing factors to his depression. He told the court that he has read the Vocational Assessment reports and is of the opinion that Mr Thomas does not have a capacity to perform the suggested employments.
17 Dr Mordia also gave evidence and a number of medical reports authored by him were tendered. He reported that he first saw Mr Thomas on 23 December 2010 on referral from Dr Kazi. He diagnosed that he was suffering from an adjustment disorder with mixed anxiety and depressive symptoms and recommended an increase in the dose of antidepressant medication. He subsequently reported a change in medication to Efexor and Seroquel and that Mr Thomas was being treated by Mr Pirotta. In December 2012, he obtained a history from Mr Thomas that he was sleeping poorly, was falling apart emotionally, was weeping for no reason, was angry and short tempered, was not coping with his stress, was being shaky and experiencing weakness in his legs. He also obtained a history of feeling fatigued, lacking motivation, eating too much and gaining weight, being confused and having suicidal thoughts.
18 He reported that in June 2012, as a consequence of a deterioration in his condition, he admitted Mr Thomas for a four week period into Burnside Prevention and Recovery Clinic. He diagnosed Mr Thomas as now suffering from major depression of a mild to moderate degree without psychotic features with co-morbid anxiety symptoms. He opined that he was unfit for all work although stated that his cognitive abilities were intact and that he was capable of any work (other than with the defendant) around his skills set and expertise once the current stress was over and this was likely to continue until the current stress was resolved.
19 In his report dated 6 May 2014, he noted that Mr Thomas continued to struggle with significant anxiety and depression and that he experienced a huge fear of any confrontation. He also noted that he wanted his court case to be over so that he could move on. Dr Mordia reported that he was taking Cymbalta an anti depressant 60 mg twice a day and Quetiapine 50 mg once a week or fortnight for sleep issues and was receiving weekly counselling from Mr Pirotta. He doubted that Mr Thomas had the capacity for suitable employment until his “current stress is resolved optimally” and that his concentration and motivation is suboptimal for any gainful employment.
20 When giving evidence, Dr Mordia confirmed that he sought approval in September 2014 from Allianz to fund a private inpatient admission to the Wyndham Clinic in Werribee for a period of 2-3 weeks due to Mr Thomas being in an acute emotional crisis in the previous few weeks. He reported that in August 2014, Mr Thomas was becoming frustrated due to the delays involved in his court hearing and his worsening financial situation and that he was struggling with significant anxiety and depression. He reported that Mr Thomas felt hopeless, his mood was flat, he continued to experience sleep disturbance, lacked motivation and was angry. The letter from Dr Mordia to Allianz dated 4 September 2014 was tendered and indicated the objectives of the admission were to; improve his symptoms of depression and assistance for any potential worsening; a break for Mr Thomas to reflect on current circumstances and respite for the carers; to review and adjust medications; and to enhance coping and problem solving strategies to manage distressing life circumstances via inpatient group programs. Dr Mordia reported on 11 September that following a discussion of his treatment proposal between his reception colleague and Mr Buhin, Claims Manager at Allianz, he would be happy to consider starting the inpatient treatment for a period of 10 days and that if further time was needed he would seek an extension and provide specific objectives to Allianz.
21 Dr Mordia told the court that in his opinion, Mr Thomas is “one step short of acute psychiatric care” and that the proposed treatment is required. He opined that his prognosis is guarded and uncertain and is dependent on the resolution of his stress. In cross examination, he agreed that his work related stress, the workcover process, his financial issues and the legal proceedings all contribute to his condition. He also agreed that in his report dated 1 December 2012, he expressed the opinion that he was fit for suitable work, although added that this was on a part time basis and that unless he was given the opportunity to do that work it would be difficult to know whether he could perform it. Dr Mordia said he believed that Mr Thomas would improve at that time and he was encouraging Mr Thomas to return to work. He told the court that once there is closure and no more uncertainty he expected that Mr Thomas would improve within 9-12 months once the stress resolves to an optimum. He also said that he would like to think that when the court case is over, Mr Thomas will become more functional so that he can return to work within 9-12 months subject to there being adequate resolution of it, his level of motivation improves and that it may take some time before his level of confidence improves to the degree necessary to enable a return to work. He said that his recent admission to Burnside was due in part to the delay in the court proceedings and the overall picture.
22 In re-examination, Dr Mordia agreed that due to the fact that; his level of confidence has been affected; he has emotional scarring; he fears confrontation; his condition has waxed and waned and worsened in recent times, that he is unlikely to be able to perform meaningful work and that he is unable to predict when he will be able to do so.
23 Dr Hunt reported on 14 November 2011 that Mr Thomas was experiencing symptoms of choking episodes at night with apnoeas. He initially diagnosed obstructive sleep apnoea contributed to by his anxiety and depression and significant weight gain. In March 2012, he reported that the use of the CPAP machine was not successful and suggested a trial of a mandibular advancement splint for which he referred him to Dr Kestenberg.
24 Dr Kestenberg, Dentist, reported to Allianz on 17 April 2012 that he first saw Mr Thomas on 10 April 2012 and observed significant poor dental condition with rampant tooth decay and a very dry mouth which required treatment prior to the provision of a mandibular advancement splint including the extraction of four teeth. Following receipt of his report, Allianz arranged for Mr Thomas to be examined by Dr Craig, Dental Surgeon, who provided a report dated 8 August 2012. On examination, she noted prior extractions, crown, bridge work and fillings and commented that his gingival condition was reasonable given that Mr Thomas was not a regular dental attendee and the condition of his crowns and bridges was fair to poor. Dr Craig opined that the proposed dental treatment was aimed at restoring Mr Thomas’s mouth to an ideal condition and whilst clinically appropriate it was not necessary insofar as the fabrication of a mandibular advancement splint was concerned. She stated that the advancement splint could be made on his existing condition without the need for the suggested treatment. She supported the provision of the mandibular splint on the basis that sleep apnoea was an accepted injury.
25 Following receipt of Dr Craig’s report, Dr Kestenberg provided a further report to Allianz dated 28 December 2012. He disputed her findings regarding specific areas of extractions and crown and bridge work. He also disputed her assessment that the salivary flow was normal and stated that the lack of saliva may be attributed to medication intake and is a contributing factor to the deterioration of Mr Thomas’s teeth. He stated that the aim of his treatment plan was not to restore the teeth to an ideal condition but to restore the lower dentition so that a mandibular advancement splint could be worn with an expectation of a moderate degree of success. He noted that if a splint was made on the teeth in their current condition, it is likely that the dental condition would worsen considerably and would result in further treatment being required and limited success of the use of the splint.
26 Dr Kestenberg also questioned the expertise of Dr Craig to express an opinion on the provision of a splint on the basis that it was recommended by Dr Hunt a specialist Respiratory and Sleep Physician and was based on the results of a polysomnogram and which cannot be accurately determined by clinical observation. He noted that medical literature support that mandibular splints are an effective treatment for certain sleep disorders. Dr Kestenberg also reiterated his view that the poor condition of Mr Thomas’s teeth has been contributed to by the medication he had been taking as a consequence of his anxiety and depression and that Allianz should pay for the splint and dental treatment plan. In a report to Mr Thomas’s lawyers dated 18 February 2014, he opined that xerostomia (dry mouth) is a direct effect of the drugs Mr Thomas had been taking, particularly Cymbalta and Seroquel. He also noted that the success of the splint was dependant on healthy dentition and the treatment plan recommended involved the extraction of 4 teeth and restoring them with implants and a bridge, fillings and a crown with the cost being $17,849.52c.
27 Dr Craig provided a supplementary report to the defendant’s lawyers dated 10 August 2014. She noted that she did not observe any objective signs of stress related temporomandibular pain dysfunction syndrome (caused by teeth grinding or clenching) or that Mr Thomas was suffering from demonstrable severe drug induced xerostomia. She also noted that she had previously commented that she is not an expert on sleep apnoea. She stated that as there is no relationship between the “incident” of 22 June 2010 and his dental condition he does not have an accident related dental injury. Dr Craig attached a copy of a paper she authored which was presented at the 9th International Congress on Dental Law and Ethics in Leuven, Belgium in August 2012 which was subsequently published in the peer reviewed Journal of Forensic Odonto-Stomatology where relevantly, she stated; “In an increasing number of cases dental deterioration can be considered due to xerostomia occasioned by prolonged use of anticholinergic medication needed to control pain in other parts of the body arising from the accident. If liability for the injury is accepted, then liability for the side effects of the drugs prescribed must be accepted also”.
28 Medical records and reports were tendered from Mr Pirotta, treating Psychologist. Mr Pirotta reported that he first saw Mr Thomas on referral from Dr Kazi on 19 July 2010 and that over a period he complained of fluctuating levels of stress, anxiety, insomnia, depressed mood, lack of motivation, concentration and memory difficulties, an inability to focus, short temperedness and emotionality. Mr Pirotta stated that treatment consisted of psychological counselling, psycho education, cognitive behavioural therapy, relaxation techniques and sleep hygiene. He diagnosed Mr Thomas as suffering from an adjustment disorder with mixed anxiety and depressed mood. In June 2012, he did not consider his condition to be stable and his prognosis was bleak. In September 2012, he indicated to Ayres Management that Mr Thomas would be fit to return to alternate duties and hours in a clerical/administrative position or as a customer service clerk. He indicated in a report dated 28 November 2012 that when Mr Thomas completed his Certificate II course in Transport Logistics he would be in a position to look for suitable work in mid 2013. On 5 March 2013, he reported that due to a deterioration in his mental condition he would not have any capacity to undertake suitable employment. The recent clinical records of Mr Pirotta indicate ongoing domestic and marital issues, fluctuating mood levels, fragility, financial issues, lack of motivation and sleep disturbance.
29 Mr Thomas tendered a medico legal report of Dr Kornan, Consultant Psychiatrist, who assessed him on behalf of his lawyers on 5 February 2014. He diagnosed Mr Thomas as suffering from an adjustment disorder with mixed anxiety and depressed mood. He noted that he was continuing to receive treatment from Dr Mordia and Mr Pirotta as well as being prescribed an anti depressant medication, Cymbalta 60 mg twice per day, an anti psychotic medication Seroquel 100 mg per day and an anti convulsant medication Epilim 200 mg per day. Dr Kornan considered Mr Thomas to be unfit for all work and that his prognosis was poor.
30 Dr Dharwadkar, Consultant Psychiatrist, who assessed Mr Thomas on 18 October 2010, Dr Ratnayake, Consultant Psychiatrist, who assessed him on 16 November 2011 and 10 August 2012 and Dr Duke, Consultant Psychiatrist, who assessed Mr Thomas on 14 May 2013 also made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. In August 2012, Dr Ratnayake assessed Mr Thomas as having a capacity to perform the suggested jobs as listed in the Vocational Assessment reports on a part time basis as his condition had recently improved. Dr Duke obtained a history from Mr Thomas that he was continuing to experience chronic fatigue, sleep apnoea, anxiety, panic attacks mood swings, was emotional and teary and lacking motivation. Dr Duke thought his treatment was inadequate and that he should attend Mr Pirotta weekly and undergo a personal training program. He stated that Mr Thomas would have a capacity for suitable employment by the end of 2013 and suggested he be a reviewed in February 2014. Allianz then arranged for the review to take place with Dr Entwisle, Consultant Psychiatrist, on 3 February 2014. He diagnosed Mr Thomas as suffering from a chronic adjustment disorder with depressed and anxious mood and that his had condition stabilised at a chronic unsatisfactory level. Dr Entwisle opined that Mr Thomas was fit for alternative or modified duties and hours and needed to be assisted to find work. He considered that work as a truck driver or possibly a forklift driver or excavator operator may be suitable. Unlike Dr Duke, he believed attendances with Mr Pirotta should be reduced from weekly to fortnightly and attendances on Dr Mordia should occur every 6 weeks because his condition had stabilised. (providing the grounds for the Notice issued by Allianz on 11 February 2014)
31 As a consequence of the inpatient request by Dr Mordia on 4 September 2014, Allianz arranged for Mr Thomas to be assessed by Dr Pokharel, Consultant Psychiatrist on 30 October 2014. He obtained a history from Mr Thomas that his medication had recently been changed to Valdoxan 25 mg per day and Diazepam 15-20 mg once per fortnight. Mr Thomas told him that his condition had declined significantly in the last 6 months and that his anxiety was too much to bear at times, he felt insecure, nervous, experienced tremors and tightness in his chest, he had a low level of energy, a lack of motivation, poor self image, sleep disturbance, difficulty with concentration and decision making due to low self confidence, anxiety episodes and constant suicidal thoughts. Dr Pokharel noted that Mr Thomas was struggling due to grief over the death of his mother on 26 September 2014 and diagnosed that he had an adjustment disorder with symptoms of anxiety and depression which has been aggravated by his prolonged and protracted court case and financial hardship. Dr Pokharel failed to give an opinion, despite being asked, as to whether the psychiatric inpatient treatment as recommended by Dr Mordia was appropriate.
32 The defendant tendered reports from Dr Berry, Surgeon, dated 21 September 2012, who supported the relationship between Mr Thomas’s condition of plantar fascitis and his weight gain and from Dr Jonathon Burdon, Respiratory and Sleep Disorders Physician, dated 1 August 2012 who supported the relationship between his accepted injury, subsequent weight gain and use of psychotropic medication and the development of obstructive sleep apnoea.
Conclusion
33 I find that Mr Thomas is currently unable to return to work in the suggested occupations as a General Clerk, Customer Service Clerk, Mail Clerk, Heavy Truck Driver, Forklift Driver or Excavator Operator. Whilst he possesses a significant skill set based on his employment history and the subsequent qualifications he has obtained since ceasing work in July 2010, he is medically unfit to return to work at this stage. I found him to be an honest and credible witness. I accept his evidence that he is struggling at present and has difficulty dealing with any form of confrontation. There were a number of occasions during cross examination where he became tearful and distressed when issues involving his domestic situation were raised or when suggestions were made to him that he would be capable of performing the suggested suitable employments. The court was required to adjourn on these occasions to enable him to regain his composure.
34 I accept the evidence of Mr Thomas and that of Dr Kazi and Dr Mordia that his mental condition has deteriorated in recent times to such an extent that he requires intensive inpatient psychiatric assistance. I also accept as valid the current diagnosis of Dr Mordia that Mr Thomas now suffers from major depression of a mild to moderate degree. Although equivocating when giving evidence concerning the ability of Mr Thomas to return to work in suitable employment, I find that in essence Dr Mordia’s opinion was to the effect that Mr Thomas currently has no work capacity which is likely to remain indefinitely until he is able to resolve the stress issues that are affecting his life. Those being, his fear of confrontation, his fear of failure, his financial and domestic issues, his feeling of hopelessness, lack of motivation, anxiety symptoms and the resolution of litigation. I also accept his evidence that it is appropriate for Mr Thomas to be admitted for inpatient care in order to improve his symptoms, to review and adjust if necessary his current medication intake and to enhance his ability to cope and implement problem solving strategies when needed. The most recent opinion of Dr Kazi is also to the affect that Mr Thomas has been in decline in recent months and that he is currently experiencing panic attacks, sleep disturbance, depressed mood, low self esteem and is having suicidal thoughts.
35 Unless and until the proposed treatment is provided and Mr Thomas’s condition stabilises and improves, he will be incapable of returning to suitable employment. Additionally, his current use of Valdoxan and Seroquel/Quetiapine with the known side effects of dizziness, headaches, nausea/tiredness and confusion would also prevent him from operating machinery including excavators, forklifts and driving heavy trucks.
36 Accordingly, I find that Mr Thomas has no current work capacity which is likely to last indefinitely. On this basis, the Notice of termination dated 18 September 2012, is set aside and Mr Thomas is entitled to weekly payments of compensation from 22 December 2012 in accordance with the provisions of the Act.
37 For the reasons expressed, I find that the inpatient treatment as recommended by Dr Mordia and supported by Dr Kazi is a necessary and reasonable form of treatment given the deterioration in the mental state of Mr Thomas in recent months. I do not accept the submission of the defendant that this court does not have jurisdiction to determine this issue on the basis that Allianz has not had sufficient time to make a formal decision and therefore no dispute exists capable of being determined by this court. During the course of the hearing, Mr Thomas sought leave to amend the Statement of Claim to seek declaratory relief in relation to this issue and leave to include it in the proceedings pursuant to s 273 of the Workplace Injury Rehabilitation and Compensation Act 2013. The defendant did not oppose leave being granted to add the issue or to amend the Statement of Claim. In my opinion, the defendant has had ample time to make a formal decision having regard to the fact that the request was made on 4 September and an assessment was arranged with Dr Pokharel on 30 October to obtain an opinion as to whether the inpatient treatment was necessary. His failure to give an opinion despite being requested to do so should not delay the issue of liability being determined particularly when the court is able to do so after being presented with evidence on the issue. In any event, in my opinion, s 264 and s 266 of the Act give power to this court to inquire into, hear and determine any question or matter arising under the Act which includes a failure to make a decision as has occurred in this case.
38 Accordingly, I declare that the defendant is liable for the reasonable costs associated with the admission of Mr Thomas to inpatient psychiatric treatment as recommended by Dr Mordia in accordance with s 224 of the Act.
39 I accept the opinion of Dr Hunt and Dr Kestenberg in respect to the need for the provision of a mandibular advancement splint to assist Mr Thomas’s sleep disorder and the grounds on which Dr Kestenberg has recommended preparatory dental treatment. I accept his opinion that the medication used by Mr Thomas for his psychiatric injury has contributed to the deterioration in the state of his dental condition and in particular his use of Seroquel which has a known side effect of causing xerostomia. I also accept his opinion that the success of the use of the splint is dependant on Mr Thomas having a healthy dentition, the aim of which will be enhanced with the treatment he has proposed. I find that Mr Thomas has suffered dental injuries as a result of the medication he has used as a consequence of his accepted psychiatric injury. The treatment recommended is reasonable and necessary for which the defendant is liable. As stated by Dr Craig in her Paper, “if liability for the injury is accepted, then liability for the side effects of the drugs prescribed must be accepted also”.
40 Accordingly, the Notice dated 22 August 2012, is set aside and the defendant is liable for the reasonable costs associated with the proposed dental treatment in accordance with s 224 of the Act.
41 In view of my findings concerning the need for inpatient psychiatric treatment, I consider that the decision of Allianz dated 11 February 2014, should also be set aside. At this stage, the nature and frequency of psychological and psychiatric treatment should be dictated by Dr Mordia and Mr Pirotta and can be reviewed in due course by Allianz on receipt of up to date psychiatric/psychological opinions.
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