Treeve v Avanti Bicycle Company (WorkCover)

[2008] VMC 24

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

No. X00053926

B E T W E E N

LUKE TREEVE

Plaintiff

-and –

AVANTI BICYCLE COMPANY PTY LTD

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   28 November 2008

MEDIUM NEUTRAL CITATION:                [2008] VMC024

APPEARANCES

Mr. S. McCredie (instructed by Arnold Thomas Becker) for the Plaintiff.

Mr. A. Middleton (instructed by Dibbs Abbott Stillman) for the Defendant.

REASONS FOR DECISION

Accident compensation – Termination of weekly payments – Whether ‘no current work capacity’ likely to continue indefinitely – Alleged unreasonable refusal to undergo psychiatric/psychological treatment – Accident Compensation Act s.93cc

HIS HONOUR

Mr Treeve seeks reinstatement of his weekly payments of compensation which were terminated by way of a 130-week notice dated 8 August 2007, effective as at 17 November 2007.

He had been formerly employed by the defendant (“Avanti”) as a state sales and business development manager.  He commenced employment with Avanti in late 2002 after extensive previous experience in sales and sales management for various businesses associated with the cycling industry.

He last worked for Avanti in about July 2004 when he resigned.  However, he did not lodge a workers' compensation claim form until 24 August 2005.  Liability was accepted by way of a notice on 14 November 2005.

His claim was for psychiatric injury, being "panic attacks and anxiety" which he attributed therein to being "bullied into long hours, stress, not receiving help".  At that time his then GP certified the diagnosis as "panic attacks, anxiety disorder".

Prior to his claim being accepted, he was examined by Dr Entwisle, psychiatrist, on behalf of Avanti.  He gave a history to that doctor of questionable business practices by Avanti and being pressured to use those tactics by Avanti.  He said that he was bullied into working long hours and was troubled by those practices.  Matters had come to a head at the company's conference in New Zealand in May 2004.  He was to make a Powerpoint presentation about one of those business practices, but had a panic attack and left the conference room.

In his evidence before me, he went into considerable detail about those events, as to which I do not propose to go into detail.  Firstly, Avanti is not on trial in this case. Secondly, the VWA admitted liability on behalf of Avanti after Dr Entwisle's report and despite the lengthy time between the cessation of his employment with Avanti.

Thirdly, as opened by counsel for Avanti, the only real issues in this case are; (1), whether Mr Treeve's present ‘no current work capacity’ (as admitted by counsel for the defendant) is likely to continue indefinitely and (2), whether the plaintiff has unreasonably refused to undergo psychiatric and/or psychological treatment.  Further, there is an issue whether he has failed to have that treatment anyway.

Counsel for Mr Treeve disputes whether the ‘unreasonable refusal’ allegation gives rise to any right to terminate payments in any event, even if the allegation of such refusal is made out.  I will go into this aspect later.

It is important to note that it is not disputed that he continues to suffer from a work related injury.  Also, counsel for Avanti makes a sensible concession that Mr Treeve is unable to work at all at present.

Despite this, he was cross-examined at some length on issues of credit such as, any prior psychiatric history, whether he had told a doctor he had gained carpentry qualifications and issues relating to the circumstances of his injury.  I did not find those lines of questioning as being of any real assistance in this case.

Most of the psychiatrists in this case have not been given any history of prior psychiatric problems. However, Dr Pun and Dr Kumar have noted some history of anxiety, possible learning problems and possible alcohol abuse going back to school days.

In addition, in cross-examination Mr. Treeve said that he had a history of hypnotherapy with a psychiatrist when he was 18 years old.

I did not get the impression he had been lying to doctors or denying any past history, but rather did not see any previous problems of being of concern and/or may well be in a denial process.

Certainly since ceasing work with Avanti more than four years ago, he seems to have improved little overall.  Despite his former career as a seemingly successful salesman and business development manager, it seems he has always been susceptible to a major adjustment disorder which happened in this case when it was triggered by his reaction to matters that occurred at Avanti's New Zealand conference in May 2004.

Despite the cross-examination of Mr. Treeve and the submission by counsel for Avanti, I believe Mr Treeve to be a genuine witness who was not lying in the witness box.  Nevertheless, he presents as having a significant and continuing psychiatric problem. 

His health has not been helped by his domestic circumstances.  After his weekly payments ceased, he began living in a garage at the back of his father's house until that relationship deteriorated with the mutual issue of intervention orders.

Since that time, he has lived in rough places such as, a camping ground, sleeping in his car and sleeping in an archery clubroom.  He seems to have had further alcohol problems, which led to him being admitted to the Dandenong Pine Lodge Psychiatric Clinic.

Since resigning his employment with Avanti in mid 2004, he has had a checkered and complicated employment and medical treatment history.  He obtained a job in another cycle shop for about three months in late 2004.  He said that his attendances and performance at work were unreliable due to panic attacks and anxiety associated with working with the public and in the same industry as Avanti.  He said that he was effectively sacked by his then employer because of his unreliability.  I accept that evidence has a ring of truth about it.

Likewise, his evidence about working as a builders' labourer and undertaking a carpentry course at Holmesglen TAFE in about 2005 and 2006 respectively.  He thought that he could work as a builders' labourer as he was always interested in carpentry because of his father's and step-father's involvements in that industry.

He worked for about six months in about 2005 for Pennywise Carpentry.  He said that he was having difficulty concentrating, made silly mistakes and was again told that there was a shortage of work which he treated as a dismissal. This was in view of his mistakes at work, such as putting a beam through a window.  At that time, he was being treated by Dr Pun for his panic attacks, anxiety and depression.

He took part in a carpentry course at Holmesglen TAFE in about early 2006.  He said that he made mistakes with power tools and had panic attacks in group situations.  He said that because of his mental state his attendance began to fall away.

The Holmesglen TAFE records show that he was present for 20 days and absent for 15 days in 2006.  His diligence and progress was marked as unsatisfactory, seemingly by the employer Pennywise, if not Holmesglen TAFE, on those records.  I see no reason to disbelieve Mr Treeve's evidence on these aspects as well, when the records are considered.  He did not complete the certificate course in carpentry.  He has not worked since. 

He has received medical and counselling treatment from a number of different providers over the years.  He initially had psychological treatment from a Dr Lyn Terin on the suggestion of his mother who formerly practiced as a psychologist, but said he was unable to afford her fees.  She referred him to a GP, Dr Pun, who had an interest in counselling.  That doctor gave him some medication, but seemed to prefer treating him by way of counselling, self hypnosis methods and learning various tools, such as avoidance techniques.  He stopped seeing her in December 2005.

He said that a doctor (quite possibly Dr Entwisle in October 2005 in view of his report) had told him of the benefits of medication which Dr Pun was not keen to prescribe.  He began seeing a GP, Dr Hirsch, who was formerly in practice with Dr Pun.  Dr Hirsch gave him anti-depressants and saw him regularly initially at least until about June 2008.  He has not seen Dr Hirsch since June 2008.

Dr Hirsch thought that the medication was helping him by "keeping a lid on his head".  However, the medication was making Mr. Treeve drowsy, which inhibited his work ability.  Dr Hirsch gave evidence that he had views on appropriate treatment for Mr Treeve, quite different to that of Dr Pun.  Importantly, Dr Hirsch told Mr. Treeve that he did need more intensive treatment from a psychologist or a psychiatrist.

Dr Hirsch said that there was a misunderstanding between them, in that Mr Treeve said that he was seeing a psychologist.  However, Dr Hirsch said that he later found out that this was a Centrelink psychologist who was seeing Mr Treeve for purposes of employability.  At no stage has he ever referred Mr Treeve for specialist treatment, let alone Mr Treeve refusing such treatment.

Dr Hirsch simply put the non-referral, after finding out about the Centrelink psychiatrist, down to a misunderstanding between them.  He could not give a reason why he did not refer to Mr Treeve to a psychiatrist or psychologist later. 

In early to mid 2008 Mr Treeve shifted to Rye to live in his father's garage because of financial problems and began seeing another GP, Dr Stitt, who continues to see him.  Dr Stitt makes no comment or suggestion of further referral in his report tendered to the court.  Mr Treeve said he has not been so referred by Dr Stitt. 

More recently there has been deterioration in Mr Treeve's psychiatric state, probably contributed to at least by his domestic situation after he was evicted by his father from living in the father's garage.  His health deteriorated and he was seen at some public hospitals prior to his admission to Pine Lodge Psychiatric Hospital on 30 September 2008.

There was a history of past and present alcohol abuse and depression given to that hospital, with past episodes of anxiety, panic attacks and agoraphobia.  Mr Treeve gave evidence that he could not cope mentally with the group therapy sessions there and wanted to get better treatment elsewhere.  He took overnight leave.  When he tried to return late to Pine Lodge he was refused readmission and in fact was escorted off the premises. 

Meanwhile, he saw Dr Hussein at Dr Hirsch's clinic on 15 October 2008.  He also said that he went to see Dr Kaplan (psychiatrist) for treatment who was unable to treat him, as he had previously seen Mr Treeve for medico-legal purposes.

He was later referred to a therapist whose name is unknown, but he did not see that therapist because the clinic was closed.  More recently, he said that he has been having therapy from a Charmaine Holmes in Mornington who gives him counselling.  Although I have not heard or seen reports from Drs Terin and Hussein, or Ms Holmes, I have no reason to doubt Mr Treeve's evidence as he has given some detail of their names, locations and approximate dates of attendances. 

On any view of the evidence his history of treatment or lack of treatment has been confusing and probably haphazard because of his mental state, domestic circumstances and financial situation.  He said that only recently did he know that his entitlement to medical expenses had not been terminated despite the termination of his weekly payments.

He said that more recently he has had difficulty getting payment by way of reimbursement of his medical expenses due to the bureaucratic requirements of the VWA authorised agent.  He is still on medication, including a combination of anti-anxiety drugs and anti‑depressants. 

As stated before, counsel for Avanti makes the sensible concession that Mr Treeve has ‘no current work capacity’ at present, but submits that incapacity is not likely to continue indefinitely, pursuant to s.93CC(1)(b). 

A number of County Court judges have defined the word "indefinitely" in this context to mean ‘for the foreseeable future’ (see, e.g. Wright v. CGU (Judge G.D. Lewis, unreported, delivered 6 October 2004)).  More recently Mr. Justice Hansen adopted the Oxford Dictionary definition, being "not clearly expressed or refined, vague; lasting for an unknown or unstated length of time" (see Woolworths v. Jeffries [2007] VSC 45 at para.14).

Almost all of the doctors in this matter state that, Mr Treeve needs active and probably intensive psychiatric and/or psychological treatment.  Perhaps the most optimistic recent views about this man's future work capacity, given that he does have such treatment, are expressed by Dr Strauss and Associate Professor Mendelsohn (both psychiatrists). 

Dr Strauss, in a report dated 6 October 2008, said that he envisages 10 visits to a psychiatrist and 30 visits to a psychologist. He said Mr. Treeve needs approximately six months of intensive treatment associated with a motivated approach to treatment, for there to be a "significant improvement in his overall state".  He thought that there also needed to be variation in Mr. Treeve’s medication over time as determined by a treating psychiatrist.  Further, he said that if Mr. Treeve did cooperate with suitable employment, there is a “possibility” that he could work in the future.

Associate Professor Mendelsohn in a report dated 29 September 2008 expressed similar views.  He recommended supportive psychotherapy and variation in medication as well.  He said that, with such treatments he "anticipates" that Mr Treeve's anxiety problems would improve over three to six months and that he could "become involved in a return to work program performing suitable duties".

It is based on those two reports that counsel for Avanti states that this man's ‘no current work capacity’ is not likely to continue indefinitely.  However, on applying either definition by Judge Lewis or Mr. Justice Hansen, I find that his ‘no current work capacity’ is likely to continue indefinitely.  It is now more than four and a half years since the relevant sales conference in New Zealand.

This man has had treatment, albeit unsatisfactory in some ways and not in accordance with current recommendations.  He has continued to have a psychiatric injury and incapacity, albeit fluctuating in severity.  The recommendations are for variations in medication, which may mean modification, and supervision for up to six months on even the most optimistic view.

Is it not as if he needs simple and obviously minor surgery to rectify a problem.  Even then, as set out above, those two psychiatrists are by no means definite as to their views on any recovery of at least some work capacity¸ including degree and relevant time period.

For all those reasons I believe that his no current work capacity is likely to continue indefinitely.

I now turn to the second ground of defence (as set out in the amended defence dated 14 August 2008) as opened by counsel for Avanti.  Essentially, counsel says that Mr. Treeve has refused and/or failed to have appropriate recommended psychiatric and/or psychological treatment and thus his weekly payments should be terminated.

He refers to the judgment in Glavonjic v. Foster [1979] VR 536 and Fazlic v. Milingimbi Community (1981) 150 CLR 345 in this regard. Counsel for Mr Treeve submits that, such a mode of termination is not set out in the Accident Compensation Act, which he submits is a code. Thus, this gives no basis for termination even if the above grounds are made out.

I have already set out the facts in some detail in this matter.  Counsel for Avanti points to the recommendation of psychiatric or psychological treatment by Dr Hirsch and the non-compliance with the Pine Lodge Clinic treatment regime and rules as amounting to such an unreasonable refusal or “tantamount to such”. He rightly assumes the burden of proof in this regard.

Looking at the legislative issue for a start, the former Workers' Compensation Board of Victoria did consider a number of cases where there was such an alleged unreasonable refusal of treatment (e.g. United Stevedoring v. Clutton (1954) 3 WCBD 96).

It was then argued in such applications that such an unreasonable refusal broke the chain of causation between injury and incapacity pursuant to s.9 (2) of the Workers' Compensation Act. Although there appears to be no reported decisions on this point pursuant to the Accident Compensation Act, the present s.93 of the Accident Compensation Act is very similar to s.9 (2) of the Workers' Compensation Act.

In addition, it should not be forgotten that the High Court in Fazlic at p.343 states that such a ground of termination is open in workers' compensation legislation, albeit based on the doctrine of mitigation of damage.

Almost all of the reported cases, both in England and in Australia, in this regard involve refusal of surgery (see, Boyes v. O'Loghlen “Workers' Compensation Victoria” at [2002]).

I have not been able to find any involving alleged unreasonable refusal of psychiatric or psychological treatment for a worker suffering a work related psychiatric injury, which is probably not surprising in such a case as this involving work related anxiety, depression, panic attacks and possible agoraphobia.

As Mr. Justice Gobbo points out in Glavonjic at p.539,

"It is appropriate to take into account a mental condition, such as an anxiety state, where that was itself related to the injuries and was caused or contributed to by the accident in question".

I refer also to Della-Costa v. Edwards (1953) WCR (NSW) 134.

On all the evidence I am satisfied that Mr Treeve has never actually refused, or “tantamount to have refused” appropriate psychiatric and/or psychological treatment, let alone acted unreasonably.

He has a history of past and present psychological treatment from psychologists, GPs and counsellors.  Dr Hirsch believed that he was being treated by a psychologist.  When he did find out that psychologist was only assessing his job suitability, he did not take up any further discussion on a referral with Mr. Treeve.  He said that this was a misunderstanding by him and not the fault of Mr Treeve.    He has never referred Mr Treeve to a psychiatrist/psychologist. 

Insofar as Pine Lodge is concerned, Mr Treeve was concerned about the group sessions and sought outside treatment.  He was escorted by staff from the hospital premises when he tried to return and was refused re-admission.  I do not accept there to have been any “tantamount” refusal, even if that is open in this case.

As Dr Kumar from Pine Lodge points out, his prognosis is poor because of limited insight, impaired judgment, difficulties engaging with mental staff and having few social supports in the community.  It is not because of any conscious and deliberate act on his behalf, or indeed any unreasonableness.

Further, such difficulties would appear to be, at the very least, partially if not substantially due to and form part of his continuing work related injury.  Even based on the Glavonjic test there has been no such refusal, express or implied. There has been no unreasonableness on his part, even if I accept that there was such a refusal, which I do not.

For all the reasons set out he is entitled to continuing weekly payments at the ‘no current work capacity’ rate from the date of termination.