Todorovska v Victorian WorkCover Authority
[2016] VCC 595
•20 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-01438
| JULIJANA TODOROVSKA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 March 2016 | |
DATE OF JUDGMENT: | 20 May 2016 | |
CASE MAY BE CITED AS: | Todorovska v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 595 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the cervical spine – psychiatric injury – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Autocaps (Aust) Pty Ltd (“the employer”) on 5 March 2009 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the cervical spine.
5 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
7 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act 1986, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
8 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
10 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
11 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
12 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] in reaching my conclusions.
[3](2005) 14 VR 622
18 The defendant concedes the plaintiff suffered an injury on 5 March 2009 but does not concede that such injury meets the requirements of subparagraph (a) or subparagraph (c) of the definition of “serious injury” referred to above.
19 Further, in the circumstances of this case, it is incumbent upon the plaintiff to prove that she suffered a compensable physical injury to her cervical spine on 5 March 2009 and, further, that such physical injury either satisfies the requirements of subparagraph (a) at the time of hearing or that such compensable physical injury was the cause of a Chronic Pain Syndrome or Severe Depressive Disorder which satisfies the requirements of subparagraph (c).[4]
[4]See Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 at paragraph [11]
The issues
20 Defence counsel identified the principal issues as follows:
(a) The plaintiff’s credit;
(b)The severity of the consequences following physical and/or psychological injury and the permanency thereof.
Compensable physical injury
21 It is common ground that on 5 March 2009, the plaintiff suffered an injury to her neck and right shoulder in the course of her employment when she was using a power screwdriver. Apparently the screwdriver jammed, placing rotatory force on her right hand and neck. She felt immediate pain in her shoulder and neck and has not returned to work since that date.
22 The plaintiff subsequently made a WorkCover injury Claim on 7 March 2009 which was accepted.[5] She was placed on weekly payments of compensation, and medical expenses were accepted with respect to psychological injury up until the present time.
[5]Exhibit K, PCB 148 – 149
23 On 21 October 2009, the plaintiff was examined by Mr Peter Wilde, orthopaedic surgeon, and it was his opinion at that time that an MRI scan dated 18 August 2009:
“… showed a very significant central C5/6 disc protrusion extending into both exit foraminae. There was a large annular tear and there was sequestrated material in the canal.”[6]
[6]Exhibit C, PCB 34
24 Mr Wilde recommended, at that time, an anterior cervical discectomy and felt that without surgery, the prognosis would be poor.
25 Following an MRI scan review on 18 June 2010, Mr Wilde, in a report dated 18 August 2010, opined:
“There was quite a dramatic improvement compared to the previous MRI of 27/7/2009.
[The plaintiff] told me her symptoms had improved slightly ….
I explained to her that surgical treatment was not likely to assist ….
She asked me if she would ever achieve ‘pain free’ back status and I explained resolution would be slow but her pain would be significantly better in five to six years time when the disc has calcified and hardened.”[7]
[7]Exhibit C, PCB 39
26 Mr Wilde recommended conservative treatment only at that time.
27 In a further report dated 7 February 2012, Mr Wilde records an incident in which the neck condition worsened dramatically and the plaintiff took herself to the Accident and Emergency Department at the Austin Hospital where an MRI scan was arranged and confirmed the presence of a very large extension of her disc injury. The plaintiff had developed a significant paracentral and foraminal disc protrusion causing high-grade C6 radiculopathy. Accordingly, Mr Wilde recommended that the plaintiff undergo a C5-6 anterior cervical discectomy and fusion.
28 The employer’s insurer refused to pay for the procedure and eventually, Mr Wilde performed a right C5-6 anterior cervical discectomy and fusion on 1 November 2012 at the Austin Hospital as a public patient. On review in December 2012, the plaintiff was reviewed and he stated:
“She was delighted with the outcome of the surgery. She had no neck and arm pain. For the first time in almost four years she was pain free!”[8]
[8]Exhibit C, PCB 54
29 On 5 March 2013, the plaintiff returned to Mr Wilde for post-operative review. Mr Wilde stated:
“Clinically she remained in good shape with much less neck and arm pain. There was some residual muscular pain around the deltoid and periscapular[r] muscles but this pain was also settling with physiotherapy.
She asked me about work and I felt she should be cleared for return to work after 1st May 2013. The reason why she was taking such a long time to recover is that Workcare refused to allow her prompt treatment and in the end, we resorted to surgical treatment in the public health system but of course the long waiting list there required her to wait. As a consequence, there was unnecessary delay, which means that her recovery from surgery will be prolonged, possibly suboptimal.”[9]
[9]Exhibit C, PCB 55
30 On that occasion, Mr Wilde had cleared the plaintiff to return to work on 1 May 2013. He considered that there would be a graduated return to work and she would return to her old job in “three to six months”.[10]
[10]Exhibit C, PCB 56
31 In a further report dated 15 October 2013, Mr Wilde recorded that the plaintiff returned to see him on 1 October 2013. He recorded:
“After the surgery at the Austin Hospital earlier this year she was extremely happy with the outcome. There was little pain in her arms and neck and she felt like a ‘super woman’. She washed all the windows in her house, cleaned all the floors; something she had not been able to do for many years. Unfortunately, this increased activity brought about some symptoms in the right para spinal region, extending into the periscapular[r] area. It was associated with neurological symptoms in her upper limbs. There was slight neck pain.”[11]
[11]Exhibit C, PCB 61
32 On examination, there was a full range of cervical movements and no neurological findings in the upper limbs. However, Mr Wilde reviewed the plaintiff’s CT scan and reassured the plaintiff that her symptoms:
“… probably related to minor relapse due to the delay in treatment. Workcare dragged their feet for some years before she eventually had her surgery in a public hospital and it is not surprising that she has had a suboptimal outcome in terms of nerve root irritation and persisting arm symptoms.
…
I asked her not to rush too quickly to regaining full activities or going back to work. I do not think she should job seek until March 2014.”[12]
[12]Exhibit C, PCB 61
33 In his summary, Mr Wilde considered that the suboptimal outcome from the surgery was likely to translate as persistent neck and intermittent arm symptoms. Mr Wilde stated:
“No doubt this will be annoying for her. It might impact on her ability to find gainful employment.
…
Unfortunately, due to a lack of neck and arm symptoms after the surgery, six months or so post-operatively she over did activity and experienced slight neck pain and some symptoms in the right para spinal region, extending into the periscapular[r] area. It was not associated with neurological symptoms in her upper limbs.”[13]
[13]Exhibit C, PCB 61 – 62
34 Mr Wilde thought, at that stage, that the plaintiff could return to sedentary or light duties employment. However, Mr Wilde qualified his opinion by stating:
“However, the difficulty for this patient is that she possesses few transferable work skills, minimal education and training. She has no job to go back to. I accept it will be difficult for her, considering current economic times to secure new work.”[14]
[14]Exhibit C, PCB 62
35 In a later reported dated 30 May 2014, Mr Wilde referred to a review on 22 April 2014. On this occasion, he noted that:
“… continuing pain across her neck and right shoulder and residual sensory radiculopathy into her right hand. It principally affects the C6 nerve root.
She remains distressed, anxious and probably depressed.
She sees Dr George Wahr (psychiatrist) regularly and his support and help is extremely helpful.
….
She was not driving, as she could not rotate her neck.
Current medications were Panadeine Forte; Voltaren, Avanza and Serenace.”[15]
[15]Exhibit C, PCB 64
36 Mr Wilde further recorded that physical examination:
“… revealed a stiff and irritable neck, especially rotation 40 degrees in both directions and extension 15 degrees and residual sensory radiculopathy affecting C6. Flexion was to 45 degrees and lateral bending to 30 degrees in both directions. I thought the biceps jerk slightly diminished but present. There was no motor deficit, muscle wasting or weakness.
…
Overall she was coping reasonably well, although I was not sure how she would manage returning to work. She has been out of the workforce for a considerable period of time and has developed a significant pain syndrome. Indeed I had filled out a questionnaire for Workcare suggesting she might be able to return to work but I am not sure that she would cope very well. Perhaps 20 hours per week in very sedentary or light duties would be possible but she told me her employer could probably not accommodate this.”[16]
[16]Exhibit C, PCB 64
37 In Mr Wilde’s final report dated 23 November 2015, he referred to a consultation on 13 October 2015. Mr Wilde noted that:
“Essentially her condition was unchanged. She was not working.
The physical examination revealed neck movements were restricted and there was residual numbness over the right thumb and index finger (C6 nerve root distribution). There was no objective muscle wasting but there was collapsing weakness of the right arm on flexion and extension of the elbow, which was pain related. Reflexes were equal and symmetrical in the upper limbs.
Unfortunately there are permanent neurogenic changes to the C6 nerve root, which will never recover and in part this is due to the massive size of the disc prolapse but also to delay in her going to surgery. Workcare denied her claim at the outset and in the end she had to go through the public hospital system, which produced an unnecessary delay. She obtained a very good result from the surgery and whilst she is 85% better, the remaining 15% causes ongoing pain and difficulty. She will just have to accept this.”[17]
[17]Exhibit C, PCB 67
38 Although Mr Wilde recorded that the prognosis was good, he qualified this by saying:
“… although she may experience neck stiffness and low-grade pain from time to time and weakness of her right arm and a numb right thumb and index finger. These symptoms will continue and the right arm weakness will never improve. This might have an impact on work capacity in the short to medium term. She will have to modify personal, domestic, social and employment activities to accommodate these symptoms.
Her condition has stabilised.
Regarding ongoing treatment this will consist of pain management focusing on medication and avoidance of activities that aggravate her.
[The plaintiff] has not worked for some time and due to ongoing arm weakness will likely find it difficult to return to work as a process worker, the work she used to perform.”[18]
[18]Exhibit C, PCB 67 – 68
39 There is no doubt in my mind that it is the opinion of the treating orthopaedic surgeon that the plaintiff has an ongoing physical injury with permanent consequences in terms of neck stiffness, low-grade pain from time to time and weakness of her right arm and numb right thumb and index finger, which symptoms will continue, and the right arm weakness will never improve. Putting aside issues of credit at the moment, it is this presentation of physical symptoms which, I believe, leads Mr Wilde to state:
“… she might be able to return to work but I am not sure that she would cope very well. Perhaps 20 hours per week in very sedentary or light duties would be possible … .”[19]
[19]Exhibit C, PCB 64
The Plaintiff’s credit
40 Defence counsel relied substantially on surveillance taken of the plaintiff on 12 February 2015, the same day that she was assessed by defence occupational physician, Dr Gary Davison, in attacking the plaintiff’s credit.
41 Dr Davison provided a report on the same day.[20] His clinical examination led to the opinion that the plaintiff’s restrictions were “out of proportion to the injury and subsequent surgical treatment”.[21] Dr Davison’s diagnosis was one of a Chronic Pain Syndrome which had developed on a background of the plaintiff’s physical injury and surgical treatment. On a physical basis alone, Dr Davison considered that she had a “mild impairment”.[22] However, Dr Davison concurred with Mr Wilde’s opinion of 30 May 2014 to the effect:
“She could perhaps work twenty hours in very sedentary or light duties employment”.[23]
[20]Exhibit 3, Defendant’s Court Book (“DCB”) 15 – 35
[21]Exhibit 3, DCB 22
[22]Exhibit 3, DCB 23
[23]Exhibit 3, DCB 22
42 The video surveillance was subsequently sent to Dr Davison and he reported further on 3 March 2015. After examining the video surveillance, Dr Davison reported:
“The video surveillance footage contrasted substantially with the worker’s presentation to me on the same day. She presented as significantly disabled, holding her right upper limb in a protective posture. There was global weakness of a collapsing nature throughout the right upper limb. Neck movements were markedly restricted and undertaken in a very guarded and slow manner.
The video surveillance material does cause me to alter my opinion substantially …. Clearly, the worker did not exhibit any pain behaviours when being surveilled, but she did so during formal examination. This evidence suggests that the worker did not give a good account of herself to me.
I consider it therefore unlikely that the worker does have any residual impairment as a result of surgery undertaken by Mr Wilde and I consider that his written opinion that the worker ‘should be cleared for return to work after 01.05.2013’ to be appropriate.”[24]
[24]Exhibit 3, DCB 26
43 Dr Davison assessed the plaintiff again on 11 January 2016. Included in his assessment material was the report of Mr Wilde dated 23 November 2015. On examination, Dr Davison noted:
“Pain behaviours were again observed to a marked degree as evidenced by vocalisation, grimacing and clutching of the affected limb.”[25]
[25]Exhibit 3, DCB 30
44 Dr Davison’s diagnosis was essentially unchanged, in that he thought the plaintiff:
“… has probably developed a chronic pain syndrome subsequent to a surgically treated intervertebral disc herniation at the C5/6 level with suspected compression of the left C7 nerve root.”[26]
[26]Exhibit 3, DCB 31
45 As to the plaintiff’s work capacity, Dr Davison opined:
“From a physical capacity perspective, I concur with Mr Wilde’s opinion that the worker has a partial capacity for employment and could undertake part-time sedentary or light work. The vocational options identified in the report dated 24.09.2014 could be appropriate subject to the following physical restrictions:
1. Avoid extremes of neck movements;
2. Vary neck posture regularly and at will;
3. Avoid manual handling greater than 4.5 kg in force or weight using both hands between mid-chest and mid-thigh height;
4. Graduated hours of work commencing at the rate of two hours per day.”[27]
[27]Exhibit 3, DCB 32
46 As to the prognosis, Dr Davison opined:
“My opinion in respect of prognosis is unchanged. I remain of the opinion that some form of analgesia will be required indefinitely and should be non-opiate-based.”[28]
[28]Exhibit 3, DCB 33
47 Further, Dr Davison opined that there was a physical impairment following the surgery in the following terms:
“It is reasonable to accept that there has been some impairment of spinal function due to a single level spinal fusion procedure; however the worker’s presentation is out of proportion to such a lesion. There are inconsistencies evident as previously noted. I consider the worker has a mild impairment of cervical spine function.”[29]
[29]Exhibit 3, DCB 33
48 The only other medical practitioner to comment on the surveillance was occupational physician, Dr Amanda Sillcock, who reported on 15 November 2015.[30] Dr Sillcock had been provided with three surveillance DVDs dated 21 September 2010, 26 November 2010 and 12 February 2015. With respect to the surveillance of 12 February 2015, Dr Sillcock stated:
“The 2015 video showed her walking for some distance, carrying her bag in her right hand. I noted that she was moving her neck more freely and to a greater range than that observed when I examined her.”[31]
[30]Exhibit G, PCB 117 – 129
[31]Exhibit C, PCB 124
49 Nonetheless, Dr Sillcock considered the plaintiff to be suffering from the effects of a cervical disc injury at C5-6 that had been surgically treated, but that the plaintiff still had residual right C6 radiculopathy. Dr Sillcock believed that the plaintiff’s ensuing incapacity for work was permanent and she believed that the plaintiff could not reliably and sustainably work in suitable employment as a result of her physical injury because any activity makes her symptoms worse.[32]
[32]Exhibit C, PCB 124 – 125
50 The relevant surveillance film was tendered in evidence[33] and was shown to the plaintiff in cross-examination. It showed the plaintiff at the South Morang railway station at 10.09am and 10.10am on the relevant date. Thereafter, it shows the plaintiff outside the consulting rooms of Dr Davison from 1.23pm, until she arrived at Flinders Street railway station at 1.35pm. The summary by Dr Davison[34] is probably fair as far as it goes. To my mind, there was little movement of the cervical spine shown in the surveillance and I do not consider the plaintiff holding onto her husband’s arm as assisting the defendant’s case at all but it is, perhaps, of limited probative value in the plaintiff’s own case. In any event, in my view, at 1.30pm, as the plaintiff crosses the street, she is showing a joyless countenance. Nowhere else is there any animation in the plaintiff’s facial features suggestive of a lack of pain. In any event, the plaintiff was then filmed at 2.44pm at the South Morang railway station, where she walks a short distance without holding onto her husband’s arm, and at 2.45pm, sits down on a bench to smoke a cigarette. The plaintiff is, thereafter, driven home, probably by her son. In my view, the sum totality of the film does not impugn the plaintiff’s credit and given that Dr Davison had already opined that the plaintiff presented with “illness behaviour” on examination, I fail to see how the surveillance advances that matter one way or the other.
[33]Exhibit 1
[34]Exhibit 3, DCB 25
51 In any event, both Mr Wilde and Dr Sillcock consider the plaintiff is significantly incapacitated on a physical basis because of ongoing pain in relation to the residual physical effects after cervical surgery which have been well documented by Mr Wilde. In my view, Dr Davison, as at January 2016, concedes that the plaintiff has ongoing residual physical symptoms leading to an approximate 50 per cent incapacity for work.
52 Having seen the plaintiff under cross-examination, I am prepared to accept her evidence that the ongoing physical pain, as perceived by her, significantly restricts the plaintiff’s capacity to return to work in suitable employment and I am satisfied that, on the evidence, any retraining or rehabilitation would not alter the permanent pain and impairment that the plaintiff endures. I consider that the plaintiff’s future capacity for work on a physical basis is probably non-existent but, in any event, would be far less than the 12 or 13 hours per week put into evidence by the defendant, or the 20 hours per week put into evidence by the plaintiff.
Severe mental disorder
53 In case I am held to be in error with respect to the above findings, the plaintiff also relies upon paragraph (c) of the definition of “serious injury”, in that it is alleged the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. For the reasons articulated above, it is clear that the compensable physical injury has caused a Chronic Pain Syndrome or a Severe Depressive Disorder that fits the causation requirements laid down in Veljanovska v Socobell Oem Pty Ltd.[35]
[35]Supra
54 The plaintiff is under the care of treating psychiatrist, Dr George Wahr. Dr Wahr consults with the plaintiff once a week for approximately 15 minutes at a time. Dr Wahr has diagnosed an Agitated Depression as a consequence of a physical injury in 2009, which has become chronic despite treatment.[36] Dr Wahr was cross-examined. The treatment is required, he states, for supportive psychiatric psychotherapy. Dr Wahr stated that the psychiatric condition needs the weekly consultations for “containment” of the condition. Without the therapy, the position would be much worse. Dr Wahr does not believe that the condition will improve after resolution of litigation because there is ongoing physically-based pain. The long-term prognosis is poor and there is a nil work capacity on account of the psychiatric condition. There is no doubt in my mind that Dr Wahr’s evidence supports a finding of “severe” in terms of the Mobilio calculus.[37]
[36]Exhibit C, PCB 103
[37]Mobilio v Balliotis (supra)
55 The defendant has had the plaintiff examined by consulting psychiatrist, Dr Natalie Krapivensky, on 10 March 2015 and 4 February 2016. Dr Krapivensky has provided reports dated 18 March 2015 and 8 February 2016.[38] Dr Krapivensky is critical of Dr Wahr’s reports. Dr Krapivensky states:
“… There has been no review and no evidence of consideration being given to alternative pharmacological therapy. Dr Wahr’s report[s] do not contain any insides [scil insights] regarding this patient’s temperament, personality, coping style, marital relationship or any other constitutional factors. He reached a diagnosis within one month of her injury and this has not been reviewed over the ensuing 7 years of weekly psychotherapy sessions.” [39]
[38]Exhibit 4, DCB 36 – 57
[39]Exhibit 4, DCB 56
56 These matters were squarely put to Dr Wahr in cross-examination. Suffice to say, he rejected the criticisms and stated that the diagnosis is reviewed, essentially, every week at the consultation and has, in fact, been peer-reviewed on a number of occasions by psychiatric colleagues. Dr Wahr asserted that the treatment program has been appropriate.
57 Dr Krapivensky did not consider that the symptoms fulfil the diagnostic criteria for a Major Depressive Order as the plaintiff did not present with five or more of the nine essential symptoms.[40] Dr Wahr, in essence, retorts that the “containment” treatment consists of medication where, for example sleep disturbance is minimised. Nonetheless, he asserts that the ongoing physical pain perpetuates the psychiatric injury, especially with respect to her ability to concentrate which, in turn, makes rehabilitation or retraining contraindicated.
[40]Exhibit 4, DCB 56
58 Nonetheless, Dr Krapivensky considers:
“The worker certainly requires ongoing psychiatric treatment and medication and, it is my view, that [the plaintiff’s] treatment to date had been inadequate, inappropriate and, at best, highly questionable.”[41]
[41]Exhibit 4, DCB 57
59 On balance, I prefer the evidence of Dr Wahr for the following reasons:
(a) Dr Wahr has been treating the plaintiff on a regular basis;
(b)Dr Wahr maintained, logically in my view, his methodology under persistent cross-examination;
(c)I consider that Dr Krapivensky’s history-taking is not in line with the overall evidence. For example:
“[The plaintiff] herself sustained a right shoulder and neck injury in 2009, which was successfully treated surgically in November 2012, and it appears that she had [a] two year period of being pretty well symptom free. It appears from the documentation available to me that she developed new symptoms in March/April 2014 around about the time when it was suggested that she may be able to return to job seeking activities given the successful outcome of her surgery. It appears that since that time in April 2014, her pain symptoms have continued unabated as her symptoms of anxiety about her need to help her children financially.
From a purely psychiatric perspective, it would be my opinion that that this lady has developed a somatic symptom disorder with predominant pain. I would be concerned, given the progress of her injury and her family circumstances, about possible issues of secondary gain.”[42]
[42]Exhibit 4, DCB 44
60 Given that Dr Krapivensky had available to her all the reports of Mr Wilde, from which she quoted extensively, she did not, in my view, give sufficient weight to the fact that there are ongoing physical symptoms attributable to the compensable injury which are contributing to the psychiatric condition. Expressing the opinion that a “successful outcome of her surgery” has led to a “Somatic” Symptom Disorder implies that the pain is not physically based and/or permanent.
61 Accordingly, I accept the evidence of Dr Wahr, to the effect that the plaintiff is suffering from an Agitated Depression, consequential upon physical compensable injury, which has rendered the plaintiff totally incapacitated for employment.
62 Accordingly, based on the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[43] leave will be granted to the plaintiff to issue proceedings at common law for damages for pain and suffering and loss of economic capacity with respect to the injury suffered in the course of her employment on 5 March 2009.
[43][2009] VSCA 170
63 I will hear the parties as to any consequential orders.
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