Viney v Invensys Rail
[2011] VCC 598
•30 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04279
| Stephen Daniel Viney | Plaintiff |
| v |
First Defendant
Invensys Rail Pty Ltd
&
| CGU Workers Compensation | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING | 17,19 and 20 May 2011 |
| DATE OF JUDGMENT: | 30 May 2011 |
| CASE MAY BE CITED AS: | Viney v Invensys Rail & Anor |
| MEDIUM NEUTRAL | [2011] VCC 598 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: Application for leave under s134AB Accident Compensation Act 1985 for the recovery of damages for economic loss and pain and suffering for psychological injury under definition in s.134AB(37)(c)- serious injury established
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N.R Bird with | Stringer Clark |
| Mr I.R Fehring | ||
| For the Defendant | Mr P.A Scanlon QC with | Lander & Rogers |
| Mr P.B Jens |
Background
1 The plaintiff was born on 25 October 1968 and is now aged 42. He is separated from his wife and has two children. The plaintiff completed secondary school in Darwin and later completed an engineering course, but for an economics unit, at RMIT in Melbourne. He was then engaged in various engineering work, mainly in defence contract work.
2 The plaintiff commenced work with the defendant (which made safety equipment for the rail industry) on 29 October 2001 as a senior hardware engineer. He worked in the product development department. A month or two after commencement, the plaintiff was promoted to Electronic Engineering Manager and became design authority (meaning he had to sign off on product changes) for electronic products. He claims that he became concerned as to product safety and quality control procedures within the defendant and reported his concerns to his manager, who took no notice. The plaintiff then said he no longer wanted the role of design authority. However, he again became the design authority in early 2003 at which time he again reported concerns (which were again met with no response).
3 The plaintiff subsequently attended a meeting in August 2003 with the manufacturing manager and project manager. The plaintiff says that the manufacturing manager swore and raised his voice during the course of this meeting suggesting the plaintiff should not have created a new name plate (which the plaintiff had done so as to improve a product).
4 After this incident, the plaintiff was upset and angry and saw his general practitioner, Dr Wendy Barton, who certified him unfit for work between 12 August 2003 and 10 September 2003. He thereafter returned to work 2 days per week but with high levels of anxiety given he claims he had “significant responsibility without any power.” He was eventually terminated on 7 May 2005.
5 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for both pain and suffering and loss of earning capacity.
6 Mr Bird, who appeared with Mr Fehring for the plaintiff, submitted that the injury arose during the course of employment between 29 October, 2001 and 7 May 2005, and particularly highlighted the events of August, 2003.
Issues
7 Mr Scanlon QC, who appeared with Mr Jens for the defendant, denied that there was a compensable injury, submitting that the plaintiff had previously suffered bipolar disorder which was unrelated to work. He further submitted that the injury does not satisfy the “severe threshold” of the Act.
8 However, in final submissions, the defendant made no submissions on pain and suffering. In terms of economic loss, Mr Scanlon also made few submissions, although he ultimately suggested that the plaintiff did have a capacity for employment, which meant he did not discharge his onus having regard to his extensive qualifications/experience.
Evidence
9 The plaintiff swore an affidavit dated 6 May 2010, and a supplementary affidavit dated 17 May 2011. He was also cross examined.
10 In his first affidavit he claims:
•
he has been admitted to hospital twice for about 7 days each;
•
there are times when he suffers from episodes of deep depression;
• he has trouble getting out of bed and sleeping; • he has difficulties with intrusive thoughts; • he has difficulties with memory and concentration; •
he has at times been accused of acting aggressively or with hostility, which he does not have a recollection of ;
• at times he feels hopeless, helpless, worthless and useless; •
his medical condition has led to the breakdown of his marriage;
• there are times when he has felt suicidal and homicidal; • he has paranoid beliefs; •
he avoids social contact and does not go out much; avoiding answering the phone and door;
•
he finds himself close to bursting into tears frequently and without reason.
11 In his supplementary affidavit he states:
• his mood fluctuates; • he sometimes does not sleep for 2-3 days and loses track of time, and other days he continues to sleep straight through the day to the next morning; • he has problems with procrastination, and has found it difficult to complete his course to become a swimming teacher; • he feels lethargic and has no energy to go out, complete housework or attend to his personal care and keeps the blinds and curtains closed in every room as he does not want to see visitors, or have people spying on him; • his social life mainly consists of going out with his children when he feels up to it; • prior to the injury the plaintiff played A-grade cricket and A- Grade 8 ball. Now he does not play cricket anymore, and has lost interest in 8 ball; • he has problems with short term memory and organising himself daily; • he occasionally partakes in roof plumbing work for a friend whom he stays with sometimes, but cannot do this on a regular basis; • he feels helpless that he cannot go back to work, and worries for his future and that of his children.
12 In terms of treatment, he sees Dr Mosler and takes Effexor medication 150mg at night, Sodium Valporate 1700 mg at night and 5 mg Zyprexa as needed.
13 The plaintiff was cross-examined at some length about an alleged history of difficulties with work colleagues and mood swings.
14 In terms of work history, although it appears that there may have been some issues in the past, the plaintiff had an impressive employment background at a high level of achievement. Further, although he feels that he suffered some depression after the breakdown of a relationship in 1992, it was never formally diagnosed and he sought no treatment.
15 In terms of mood swings, the plaintiff agreed that he felt that he was the best employee at the defendant. He agreed that he had experienced “over confidence,” but would not use the word “euphoric.” In response to a statement in a report of Dr Weissman that he had been hypomanic at least half a dozen times before his bipolar diagnosis in 2007, he denied this and said that he had only been overconfident. He did agree that he had been described as being “snappy and happy,” but denied the “euphoric’ description; just “happy” and “irritable.” He also denied being “hypomanic” in playing cricket.
16 Under re-examination he said that he had previously done very difficult work which he handled very well before he worked for the defendant. Further, in terms of any stress at work he had not gone off to a doctor, nor sought treatment. He described himself as very satisfied with his work and pleasantly satisfied with his cricket. He had also played for the Northern Territory in cricket.
17 The plaintiff presented as an intelligent person, although he appeared flat, and even vacant looking at times. It was also apparent that he experienced some difficulties concentrating. All of this was consistent with a person experiencing a highly serious psychological condition. I generally found his evidence to be credible and coherent and accept his evidence as to his history and consequences.
18 An affidavit of Alex James Brooks, a friend of the plaintiff, of 11 May 2011 was also adduced. This affidavit generally corroborated the impact working for the defendant has had on the plaintiff. In particular, Mr Brooks had noticed a clear change in the plaintiff when he stayed with him in 2005; noting that he spoke of his concern about safety issues; that he stayed in bed until lunchtime; and that he had lost interest in things he used to enjoy and kept the blinds and curtains shut.
Principles
19 In terms of establishing a serious injury pursuant to s134AB(37)(c), the plaintiff must establish a permanent “severe” mental or permanent “severe” behavioural disturbance or disorder. In so doing, the consequences must be, 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.[1]
[1] Section 134AB(38)(d); and see Mobilio v Balliotis [1998] 3 VR 833.
Nature and Extent of the Injury
Treaters
20 Dr Wendy Barton, GP, completed three reports and saw the plaintiff between June 2002 and October 2005.
21 In her report of 28 October 2003 she described the plaintiff feeling “increasing pressure” in relation to safety issues in the months leading up to August 2003. She further described confrontations in early August, 2003 which caused the plaintiff to become increasingly stressed and anxious, with symptoms of insomnia, ruminations, anger, anxiety and dizziness. She did not describe any past history of similar concerns in previous jobs.
22 In her second report of 7 July 2004, she described that the plaintiff had felt that he could not return to work in early 2004 and had become depressed with suicidal thoughts. She prescribed an anti- depressant, Luvox. She believed that the dispute with his employer had contributed to his depression and inability to work. At that stage she believed he could return to employment when he started to feel better.
23 In her last report of 19 April 2009, Dr Barton noted that he remained on Luvox but had begun to experience hypomanic episodes and that he was concerned about having Bipolar 11 disorder. She last saw him in October 2005.
24 Ms Crawford, psychologist, completed a report of 21 June 2009, having treated the plaintiff during 2003 and 2004. She described him as depressed, anxious, stressed and with an anger management problem.
25 Dr Salvatore Martino, psychiatrist, treated the plaintiff between June 2004 and August 2005 and completed a report dated 17 April 2009. He diagnosed a major depressive episode with somatic symptoms exacerbated by increased anxiety. At that stage he saw no reason why he was incapable of working once his symptoms had started to improve.
26 Dr Singh saw the plaintiff in November 2005 and completed a report of 8 November 2005. He reports that the plaintiff was experiencing hypomanic episodes once or twice a month. However, he still diagnosed a major depressive episode precipitated by work related stressors.
27 Dr Tomasic, psychiatrist, completed three reports. In her first report of 26 May 2006, she opines that the plaintiff suffers from chronic depression and an obsessional personality with paranoid traits. She noticed improvement in her second report of 30 January 2007 but continued the Lexapro and suggested therapy for 18 months. In her last short email of 19 February 2007 she said that there was nothing that suggested that he had suffered a hypomanic episode but that, instead, he had an adjustment disorder with agitation and anger on top of a partially treated depression.
28 Dr Daniel Mosler, consultant psychiatrist, first assessed the plaintiff in 2008 and completed various reports between October 2008 and November 2010.
29 In his lengthy report of 28 April 2009 he describes a pattern of onset of a mood disorder best characterised as bipolar 11 disorder over a five year period occurring in the context of a disagreement with his previous employer. However, he refers to Dr Duke’s diagnosis of an adjustment disorder with anxious mood and somatic manifestations. Dr Mosler states that he has no reason to doubt that this is a correct assessment of Mr Viney’s injuries sustained during the course of his employment with Invensys Rail Systems. However, he further highlights that as this disorder has developed over time it has become clear that the plaintiff has experienced cyclical mood disorder. He suggests it is “possible” that this mood disorder predated his employment. He also suggested it was unlikely that the plaintiff could contend with the complexities of maintaining the high standards required of his profession.
30 His report of 8 February 2010 was written in relation to the plaintiff’s ability to access his children. At that time Dr Mosler noted no evidence of a significantly elevated mood or depressed mood. In his final report of 17 November 2010 however, the plaintiff’s mood had declined moderately.
Medico-legal reports
31 Dr Michael Duke consulting psychiatrist, completed a report of 16 November 2003. He diagnosed the plaintiff as sustaining “an adjustment disorder with anxious mood and somatic manifestations.” He further opines that employment was a significant contributing factor. At that stage he believed the plaintiff had a capacity to undertake work and was doing so part-time.
32 Dr Shan, consultant psychiatrist, completed a report of 16 March 2004. He saw the plaintiff on 16 March 2004. He accepts that the plaintiff ceased work in August 2003 after a “tense interaction with one of his Managers.” He further accepts that the interaction arose “in a setting of stress.” However, he was of the view, contrary to the overwhelming preponderance of the medical evidence, that the patient did not at that time show any evidence of psychological injury or illness.
33 Dr Weissman, consultant psychiatrist, saw the plaintiff on 28 June 2010 and completed a report of 28 June 2010.
34 He noted there were pre-existing vulnerability factors with an undiagnosed mood disorder but nevertheless stated that when he started working in October 2001 the plaintiff had a good quality of life, a good level of function, was working full time and not seeking a psychologist or psychiatrist or taking any psychotropic medication. “There has been a severe decline and deterioration in the worker’s level of function, mental state and occupational capacity since August and December 2003.”
35 He opines that the “main diagnosis” is one of “a severe chronic Major Depressive Disorder” although overall he most probably has a bipolar disorder. His conclusion is that he is suffering from a “chronic Major Depressive Disorder related to his employment.” He still has a low level of functioning despite high levels of appropriate psychotropic medications.
36 Dr Weissman concludes that the plaintiff has a total incapacity for pre-injury duties and only a small capacity (perhaps 10 or 20%) for suitable duties in a relatively low pressure, low stress, structured, supportive, empathic and sheltered working environment, with a boss who is his close friend (which is really no job at all). His prognosis is poor and unfavourable and he suggests that there has been a total loss of earnings thus far and there continues to be (virtually) a total loss of earnings capacity for the future. He then states that:
“Overall I believe that the worker has sustained and developed a severe psychiatric condition or mental injury due to his employment and alleged/reported work-related stress.”
Associate Professor Mendelson
37 Dr Mendelson saw the plaintiff in April 2011 and completed a report of 6 April 2011.
38 He opines that, based on the information available to him, the diagnosis of Bipolar 11 Disorder is appropriate. It is also his opinion that the psychiatric illness cannot be attributed to his employment with the defendant. He notes that Dr Mosler had diagnosed this condition when the plaintiff was admitted to Darwin hospital in February 2007 and states that Dr Mosler had noted that the disorder “might have predated” the plaintiff’s employment with the defendant.
39 However, Dr Mendelson appears to ignore Dr Mosler’s diagnosis of adjustment disorder. He also emphasises significant episodes of mood disturbance since the plaintiff ceased work and appears to take no history of such episodes prior to work which might support the diagnosis of the non-employment related bipolar condition. Further, although the Associate Professor notes that the disorder can be triggered by environmental stressors, he does not appear to consider the impact of work stresses.
Dr Stern
40 Dr Stephen Stern, psychiatrist, saw the plaintiff in November, 2009 and completed a report of 11 November, 2009. He notes that the plaintiff felt suicidal in 2004 and 2007 and currently has recurrent anxiety, disturbed sleep, lack of energy and reduced memory and concentration. He also recalled 3 “manic episodes” in 2006 and 2007.
41 He concludes that the plaintiff is suffering from bipolar disorder which was related to work stress during 2002 and 2003 including the incident in August 2003. He further concludes that the plaintiff is suffering a 15% whole person psychiatric impairment.
42 Dr Stern attended court for cross examination.
43 Under cross examination, he agreed that mood fluctuations and overconfidence may be a “setting” in which bipolar disorder could develop. However, in the plaintiff’s case he believed the work stress had contributed to his psychiatric state and bipolar disorder, having regard to his ability to function before and after the work stress.
Dr Epstein
44 Dr Epstein, psychiatrist, saw the plaintiff on 9 February and completed a report of 10 February 2011.
45 He reports that the plaintiff has frequent episodes of depression, during which he feels hopeless, helpless, useless, worthless and tearful. The plaintiff said that he still has these symptoms in his oral evidence. His self-esteem has dropped and he is bored, restless, frustrated, lonely, isolated, irritable, exhausted and agitated. He still has suicidal thoughts at times and he has problems with memory and concentration.
46 Dr Epstein concluded that the plaintiff appears to have developed symptoms arising out of his employment and continues to have symptoms of a chronic Adjustment Disorder with anxious and depressed mood.
47 “In addition” he reports symptoms of Bipolar 11 Disorder with episodes of depression and mania and that the plaintiff has had treatment for this with a mood stabiliser, an antipsychotic drug, and Efexor, an antidepressant medication. He opines that it is likely that his work related situation has triggered off his Bipolar Disorder but that his Bipolar Disorder may well have occurred anyway and now appears to be relatively stable. The major problem he experiences relates to his work situation and his chronic Adjustment disorder with anxious and depressed mood.
48 Dr Epstein further opines that from a psychiatric point of view the plaintiff is unfit to return to pre-injury work on either a full-time or part-time basis and this condition appears to be permanent. He does not appear to have the capacity to perform suitable employment taking into account his incapacity, his age, his education, his place of residence, his skill and his work experience.
49 Dr Epstein attended court. He was an impressive, calm and measured witness who maintained his opinions under the pressure of cross examination.
50 He did not agree that the bipolar disorder had predated the plaintiff’s employment with the defendant. He accepted that regarding oneself as better than other employees “could be” consistent with a bipolar disorder, but much depended on the reality of the perception. Further he opined that erratic moods “could be” a precursor of bipolar disorder although it could also be indicative of someone who was mildly depressed.
51 Dr Epstein also highlighted that the people who saw the plaintiff in the two years or so after he ceased work did not diagnose a bipolar disorder and, further, that bipolar disorder can be well controlled. Given then that the defendant’s capacity to function remains limited, he had diagnosed chronic adjustment disorder co existing with bipolar disorder, the latter being well controlled.
52 In terms of employment Dr Epstein explained that the plaintiff had effectively had a “breakdown” and he fitted into a category where, despite his training and qualifications, he is not able to function effectively. In response to a suggestion that the plaintiff had capacity if treated, he explained that the plaintiff has already undergone a variety of different treatments but still remains dysfunctional.
53 Under re-examination, he accepted that each of doctors Duke, Mosler, Weissman, Martino and Singh were consistent with what he saw as the major problem facing the plaintiff.
54 He also thought it significant that Dr Mendelson did not take up the issue of adjustment disorder and appeared to base his diagnosis “on the information available” rather on how the plaintiff presented.
Findings
55 The defendant submitted that I should find that the plaintiff suffers from a bipolar disorder wholly unrelated to work with the defendant. In particular, the defendant cited:
• the reports of Dr Mosler; • the report of Dr Mendelson; • the report of Dr Singh who suggested that there were bipolar indicators already present; and • the report of Dr Stern. 56 In terms of the report of Dr Mosler, in his report of 28 April 2009 he accepts the diagnosis of Dr Duke that the plaintiff has an adjustment disorder with anxious mood and somatic manifestations.
57 In terms of Associate Professor Mendelson, he does not appear to be briefed with a number of earlier reports which confirmed the existence of an adjustment disorder/ depression (for example Duke, Singh, Barton, Crawford, and Martino). He also does not address the issue of an adjustment disorder at all as opposed to Dr Epstein who carefully analyses the impact of both conditions. He further dismisses without analysis the impact of “environmental factors” and appears to put great emphasis on the “possibility” of pre-existing bipolar without any extensive history of such a condition.
58 I further accept the evidence of the plaintiff cited already, particularly that he was not “euphoric” prior to working with the defendant, only “overconfident.” The evidence did not establish the pre-existence of a bipolar disorder as suggested by the defendant.
59 In terms of Dr Singh, he reports hypomanic episodes in 2005 but little history prior to employment. In any event, he also diagnoses a major depressive episode.
60 Finally, even if the diagnosis of Dr Stern was to be accepted, he accepts that the bipolar disorder is related to the work stress.
61 Overall then, I prefer and accept the diagnosis of Dr Epstein as to the major problem contributing to the plaintiff’s ongoing consequences. This is an adjustment disorder with anxious and depressed mood. The diagnosis of Dr Epstein is particularly supported by doctors Duke, Mosler, and Tomasic. As confirmed by Dr Epstein, his diagnosis is also consistent with doctors Martino, Singh and Weissman. As was also explained by Dr Epstein, it appears that the ongoing incapacity of the plaintiff (which I accept) is also more explicable by reason of this diagnosis.
62 I therefore do not accept that the plaintiff suffered from a pre- existing bipolar disorder unrelated to work. I also reject, in particular, the contrary opinion of doctor Mendelson and the opinion of Dr Shan.
63 I further find that this adjustment disorder arose out of or in the course of employment. This is consistent, in particular, with the reports of doctors Barton, Singh, Mosler, Duke and Weissman. There is nothing to suggest this disorder pre dated employment.
64 Even if a diagnosis of bipolar disorder was to be accepted as the more appropriate diagnosis then, consistent with the opinion of Dr Stern, in my view the disorder was related to the work stress during 2002 and 2003. Thus the diagnosis is only made after the plaintiff started work and the evidence does not establish the pre- existence of the disorder before that time.
65 I therefore find that the plaintiff has established a compensable injury.
66 Given the effluxion of time, I am further satisfied that the psychiatric condition is permanent in the sense that it is likely to last for the foreseeable future.
67 In terms of pain and suffering, the defendant did not put any submissions to refute the existence of severe consequences. This was an appropriate stance to take. Thus I accept the plaintiff’s evidence as to the consequences he experiences which include episodes of deep depression; suicidal feelings; severe sleep impairment; and the need for powerful medication. In my view these consequences are “severe” even without adding his inability to work at the “very difficult work” he formerly undertook (which I also accept).
68 In terms of work capacity, the more recent opinions are important in describing the plaintiff’s current state. Dr Epstein, under cross examination, did not resile from his opinion that the plaintiff has no capacity. This view was also shared by Dr Weissman. This incapacity is further supported given the plaintiff’s own views and actions. Thus, despite an impressive background, the plaintiff has only been able to manage 6 days work this year as an assistant to a roof plumber. He has not even been able to complete a training course to become a swim instructor.
69 The defendant suggested that the plaintiff has extensive qualifications. This is true. Indeed, in terms of the factors set out in the s.5 definition of “suitable employment” in the Act, the plaintiff had achieved a senior position, is relatively young, had good education, skills and experience and does not propose any problems with his place of residence. Despite this however, consistent with Dr Epstein, he has in my view zero capacity for ongoing sustained work as a result of his severe psychological incapacity.
70 Given the plaintiff’s inability to work, I am satisfied that the condition has resulted in loss of earning capacity consequences which are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
71 Further, given that I am satisfied that the plaintiff would not be able to work in any suitable employment, whichever figure is taken as a “without injury” amount in s.134AB(38)(f), I am satisfied that the plaintiff has a loss of earning capacity of 40 percent or more and will after this date continue to have a loss of earning capacity which will be productive of financial loss of 40 percent or more pursuant to s.134AB(38)(e).
72 For these reasons I also find the plaintiff does not have a capacity for employment which, if exercised, would result in the worker earning more than 60 percent of gross personal-exertion income pursuant to s.134AB(38)(g). In so saying I have also had regard to s.134AB(19)(b), which provides that:
for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
Conclusion
73 The plaintiff has satisfied me that he meets the definition of “serious injury” under s.134AB(37)(c) of the Act.
74 There will be leave to the plaintiff to bring proceedings pursuant to s.134AB of the Act for damages for both pain and suffering and loss of earning capacity.
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