Vladimir Radovanovic v Victorian WorkCover Authority
[2022] VCC 1956
•14 November 2022 (Oral Judgment) (Revised 16 November 2022)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-22-01644
| VLADIMIR RADOVANOVIC |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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| JUDGE: | HIS HONOUR JUDGE PILLAY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 November 2022 |
| DATE OF JUDGMENT: | 14 November 2022 (Oral Judgment) (Revised 16 November 2022) |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | Vladimir Radovanovic v Victorian Workcover Authority [2022] VCC 1956 |
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – workplace injury – psychological injury – sexual assault
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Katanas v Transport Accident Commission [2016] VSCA 140; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Ms A Wood | Hall & Wilcox |
HIS HONOUR:
(Acknowledgment of Country.)
1In this matter I propose to give oral reasons and judgment now.
2Mr Radovanovic suffered psychiatric injury throughout the course of his employment with KDR, and in particular on 9 February 2016.
3His psychiatric injuries occurred by reason of the lewd behaviour and sexual assaults perpetrated by a fellow worker by the name of one Kame Krstevski. It is not in dispute that Mr Radovanovic has sustained injury. What is in dispute is the issue of whether the impairment consequences flowing from that psychiatric injury rise to the level to be considered a severe mental or behavioural disturbance. The plaintiff abandoned any claim based on loss of earnings and squarely focused on the impairment consequences flowing from the accepted psychiatric injury.
4The defendant submitted that the plaintiff's case failed for three primary reasons. First, that his evidence as to the impairment consequences was unreliable and inconsistent. They focused on discrepancies as to his evidence as to weight gain, his assertions as to why he could not do night shifts, the picture his affidavit painted of being housebound versus the reality shown in social media posts, and the failure of his affidavit to mention other workplace stressors and incidents.
5Second, that the medical evidence of his treating practitioners painted a positive picture.
6And third, that the cause of his current psychological symptoms, it was submitted, arose from a number of incidents which arose post the 2016 events which cannot be disentangled from the current effects of the actions of Mr Krstevski.
7For the reasons which follow, I find for the defendant.
8Turning to the relevant history. Mr Radovanovic was born in Victoria in March 1974. He was diagnosed at a young age with insulin dependent diabetes. This caused issues with his weight. He also had some psychological counselling. He had a difficult relationship with his parents. At about the age of 18 he was involved in shop theft. Nothing controversial was said to arise from this somewhat turbulent childhood, such as a pre-existing psychiatric condition that needed to be disentangled.
9He finished Year 12, enrolled in TAFE and then left before completion. He had odd jobs, and, in about 1991, commenced working as a security guard and controller. He did this for 19 years before joining KDR Yarra Trams, in the maintenance team in 2010. He continues to work there to this day.
10When he started, he worked at the E Gate Depot on Footscray Road.
Mr Krstevski worked there also. They had a robust blokey relationship, being foulmouthed with each other, for example.11The matters at paragraph 12 to 20 of Exhibit P1, the affidavit of the plaintiff dated 16 December 2021, are not in dispute and do not need to be repeated. However, the relevant incident at paragraph 19 needs to be repeated. I quote:
"I then took my work boots from my locker and put them on the floor while I took off my casual shoes. I had one boot on and was leaning down to put the other boot on when Kame Krstevski suddenly approached me from one side. He grabbed my head in his hands and forcibly thrust my head into his groin. As he did so, he dry-humped my head repeatedly. I think he did it for three or four times. The way he did it was absolutely vicious."
12That incident resulted in Mr Radovanovic making a complaint. That process can be skipped over for the purposes of this litigation.
13The plaintiff worked for a few days and then went on a pre-planned holiday to Taiwan with his wife. He deposed to wanting to kill himself at that time.[1] He returned to Australia and was certified as unfit for work by his treating doctor for a period of about three months. He then returned to work on full duties work in about June 2016, but was placed on day shifts. He has continued working full-time, full duties work since this time with Yarra Trams at the same depot.
[1] Exhibit P1, affidavit of the plaintiff dated 16 December 2021, paragraph 43 (“plaintiff’s first affidavit”).
14His treating doctor referred him to a psychiatrist, Dr Wehbe, in about July 2016.[2] She tried him on a range of antidepressants and sleep agents.[3] All had a poor result.
[2] Exhibit P1, affidavit of the plaintiff dated 16 December 2021, paragraph 29.
[3] Plaintiff’s court book (“PCB”) 30.
15In addition, the plaintiff deposed that the medications caused him weight gain.[4] Dr Wehbe described him as having a post-traumatic stress disorder (“PTSD”) in partial remission, and depression and anxiety in partial remission by the end of her consultations.[5]
[4] Exhibit P1, plaintiff’s first affidavit, paragraph 45.
[5] PCB 31.
16In her report of 5 December 2017, she described his symptoms as being distress, humiliation, feeling ashamed and suicidal, hopeless, helpless and exhausted from insomnia.[6]
[6] PCB 32.
17In early 2017 a workplace issue arose when there was an altercation between Mr Radovanovic and another worker, Mr Nesci. The details of that are unimportant, but as a result Mr Radovanovic was sent to see a psychologist, Mr Barnard. In his report from March 2017, he makes no mention of the February 2016 events.
18Mr Radovanovic also saw a medico-legal psychiatrist for the defendant in July 2017 by the name of Dr Triggs. Her report noted his PTSD in remission, diagnosed a major depressive disorder in partial remission, recorded insomnia and nightmares every two days, with no active suicidal symptoms, but intermittent suicidal ideas.[7]
[7] Defendant’s court book (“DCB”) 177 and 180.
19From about 2018 to November 2020 he consulted with the psychologist,
Mr Barnard again, but ceased when Mr Barnard left that practice.[8] .[8] Exhibit P1, plaintiff’s first affidavit, paragraph 46.
20There is no report from Mr Barnard since the 6 March 2017 report previously mentioned. His consultations with Mr Barnard, he deposed, were every two to four weeks,[9] and because of psychological difficulties from his workplace incident with Krstevski.
[9] Exhibit P1, plaintiff’s first affidavit, paragraph 46.
21A number of incidents occurred around this time. They can be summarised into the following headings and dates:
(a) Nesci in 2017;
(b) Carroll in 2020;
(c) Lollies in May 2021; and
(d) Beckett in October 2021.
22Arising from each of those events, Mr Radovanovic accepted the following in cross-examination. After Nesci, he saw Mr Barnard. After Carroll, he lodged a WorkCover claim that noted he was stressed and anxious and saw a counselling program called Converge, none of which was mentioned in his affidavit.
23After Lollies and Beckett, he was stressed because he was investigated and given workplace final warnings. None of these matters were deposed to in his affidavit, but I repeat, arose from cross-examination and ultimately were accepted by him.
24His treating doctor reports of Dr Ahmadi, from August 2020,[10] and 29 October 2022,[11] are both in similar terms. They note that his prognosis was good and that he requires no further treatment.
[10] PCB 35.
[11] PCB 36.
25His marriage broke down in 2020, which he blames on his psychiatric condition, which affected his erectile dysfunction and his ability to socialise.
26His first affidavit in this matter was sworn on 16 December 2021,[12]. In that affidavit, he deposes to the following impairment consequences flowing from the psychiatric injury at work involving Krstevski: [13]
· He returned to work, but felt that he was being shunned by others as an outcast because his shift was moved to daytime, so as not to clash with Krstevski;
· Feeling helpless and with no confidence, anxious to a high level, two to three times per week;
· Feeling unsafe;
· Losing his ability to freely socialise, which affected his marriage;
· Being unsure of himself socially;
· Poor sleep and insomnia;
· Thinking about suicide, and for years having kept a noose made of rope in his garage;
· Nightmares a few times a week.
[12] Exhibit P1 and PCB 10.
[13] Exhibit P1, plaintiff’s first affidavit.
27He swore a second affidavit on 21 October 2022. In it he deposed as to his impairment consequences:[14]
· He had recently been referred to a mental health provider, CoHealth, by his diabetes treater because he had hit rock bottom. In this regard I note there is no medical report from that counsellor, CoHealth;
· He had gained ten kilograms because of his workplace injury;
· He had ongoing anxiety and low mood;
· He had difficulty with sleep, insomnia and nightmares;
· Flashbacks;
· Having a confined social life of work and then home except on the odd occasion;
· Thinking about the incident on most days; and
· reduced concentration and memory.
[14] Exhibit P1, affidavit of the plaintiff dated 21 October 2022 (“plaintiff’s second affidavit”).
28He called in aide an affidavit of Mr Stojanovski, sworn 2 November 2022, to support the change in his demeanour and decreased social life that he had deposed to.
What is the workplace injury?
29I have sketched the treating practitioners’ medical evidence. Dr Walton, the medicolegal specialist who opined this year, concluded that there is an ongoing chronic adjustment disorder with mixed anxiety and depression.[15]
[15] PCB 41.
30I accept that finding in preference to that of Associate Professor Doherty who also opined in this matter earlier this year.
31Dr Doherty opined there is no ongoing recognisable psychiatric injury.[16] I accept and prefer Dr Walton's opinion because it is in keeping with the previous opinions of Drs’ Wehbe and Triggs from the past.
[16] DCB 193.
32However, I note again the lack of any evidence from Mr Barnard and that is troubling and causes me grave doubt in making this finding.
33I also prefer Dr Walton's opinion to that of the treating doctor, Dr Ahmadi, given Dr Walton's expertise as a psychologist.
Are the impairment consequences sufficient to find the plaintiff suffers from a severe mental or behavioural disturbance or disorder?
34As I have said earlier, the answer to that question must be answered in the negative.
35Starting with an assessment of the plaintiff's evidence. I found that overall he was a credible witness who answered directly. He conceded matters regularly such as the workplace issues. This was to his credit.
36However, in significant parts, his evidence was incomplete and unreliable. It was incomplete, for example, as to the involvement of Nesci in 2017. The reason behind the referral to Barnard was the Nesci incident not mentioned in the plaintiff's affidavit rather than anything to do with Mr Krstevski.
37The same goes for the involvement of Converge after the Carroll incident rather than as the affidavit suggested of being linked to Mr Krstevski.
38It was put that these matters were not deposed to because they were trivial in comparison to the Krstevski matters.
39I reject that evidence and the submission founded on it because the Carroll incident, for example, was of such moment that a WorkCover claim was lodged for stress and anxiety.[17]
[17] Transcript (“T”) 29, Line (“L”) 31.
40The affidavit was also framed in a way to give an impression that the Converge consultations were because of the ongoing symptoms related to the Krstevski incidents. This was plainly misleading.
41It was unreliable, for example, when it deposed to weight gain of ten kilograms when the doctor's records show his weight was reasonably stable.
42Overall, then, while I accept the plaintiff is a witness of truth generally, I do not accept his evidence as to all the impairment consequences deposed to.
43I now come to determine what are the impairment consequences. In doing so I am mindful of what the majority of the Court of Appeal said in Katanas v TAC[18] as to the difficulty in distinguishing between symptoms and consequences when dealing with psychiatric injury.
[18] [2016] VSCA 140.
44As a result of the workplace injury, I find that Mr Radovanovic has returned to work on full duty work since about mid-2016. In fact, he has now been promoted to a Grade 4 and earns about the same as before. He accepted his wages are 'all good',[19]. In addition, he does regular weekend overtime work.
[19] T 26, L 16.
45I do not accept that he cannot return to night shift given the evidence in February 2016 that his treating doctor recommended he cease nights to help with insulin control.[20] This is particularly so now that Mr Krstevski has left the company.
[20] T 26, L 4.
46I find a full range of employment opportunities, including night shift, are available to the plaintiff.
47As to the requirement for treatment of his symptoms, this has only been moderate I find. He saw Dr Wehbe for about a year from 2016.[21] Then, he saw Mr Barnard in 2017 for unrelated matters.
[21] T 27, L 3-5.
48From 2018 to November 2020, he saw Mr Barnard. It is unclear the nature of those consultations as no report from him has been provided as I have noted. This makes it extremely difficult for the Court to assess the symptoms and requirement for treatment in this matter during this period of time.
49No effort was made to explain the absence of reporting from Mr Barnard or the clinic, not even notes of the consultation were tendered. This is important because Mr Barnard had first become involved after the Nesci incident. Why Mr Barnard became involved after that time is somewhat unclear because he remained involved after the Carroll incident. This is important because Mr Radovanovic's affidavit is silent as to Mr Barnard's involvement as a result of the Nesci incident, yet he then came to accept that it was prompted by the Nesci incident after cross-examination and not the injury caused by Mr Krstevski.
50Having regard to the affidavit material and on balance, I do find that he saw Mr Barnard from 2018 to November 2020, two to four times per calendar month, related at least in part to his workplace injury.
51I am not satisfied that he saw Mr Barnard solely or for the dominant reason of it being related to the Krstevski incident. Because of the unreliability of the affidavit in this regard and the lack of any records from Mr Barnard or the clinic.
52However, he ceased that treatment in November 2020 and has only been referred to a counsellor in mid-2022 who he has seen for four to five times prior to trial.
53No report has been obtained from that counsellor or an adjournment sought to obtain it. Nor does any material shed light on the need for such treatment, as the treating doctors' reports conclude that his prognosis is good and there is no need for further treatment.
54In the absence of contemporaneous material from the treating doctor or the counsellor, I do accept this need for counselling is partly related to the workplace injury on the balance of probabilities.
55However, to what extent is completely unclear and I am unprepared to find that the workplace injury is the sole or even dominant reason for his attendance on this counsellor especially given numerous other workplace incidents and the breakdown in his marriage in 2020.
56I find his relationship did not fail because of his workplace injury but for other reasons.
57Dr Walton, medicolegal psychiatrist, opines that ongoing treatment is necessary. But, in circumstances where that opinion is from a single examination, six years after the date of injury with no contemporaneous material from Mr Barnard or the latest counsellor, I consider that to be an entirely speculative opinion. I reject it.
58To summarise my findings as to treatment then, I find he needed one year of treatment with Dr Wehbe, he trialled medications in that time but has not required medication since.
59He saw Mr Barnard for two years until November 2020, in part to do with his workplace injury, one to two times per calendar month.
60I find thereafter he has recently had some counselling, but I do not consider that can be shown to be solely related to treatment for his workplace injury.
61I find he does not satisfy me that he needs ongoing future treatment for his workplace injury, having regard to his treating doctor's opinion.[22]
[22] PCB 36.
62I have previously found that he has no significant weight gain from immediately prior to the workplace injury until earlier this year.[23]
[23] T 36, L 14.
63I find he has not suffered psychological induced erectile or sexual dysfunction as a result of his workplace injury,[24] given also the medical history given to his treating doctor does not mention this or is commented upon by the doctor.
[24] PCB 42.
64As to his social withdrawal and dysfunction, I accept that he is less outgoing and willing to meet new people. However, I find he has also retained significant social function. He has travelled overseas to Hong Kong, Japan, Thailand, Bali and Singapore from 2017 to 2020 when COVID struck. This is a very substantial amount of travel I consider and stands in contrast to the picture painted in his affidavit of essentially being housebound.
65He has gone to a trance music DJ show and Def Leppard concert. He goes to the football sporadically and can be coaxed out of the house at times.
66He can and does go to dinners with friends such as Mr Stojanovski and Ms Finelli and recently went to a social event, being a wedding. In fact, he has dated and formed intimate relations with a new partner recently in mid-2022.[25] This was after he had separated from his first wife in 2020.
[25] T 37, L 26 – T 38, L 8.
67While it can be accepted that he is hesitant in social matters, it is very clear that he has an active social life. I find he does get enjoyment out of work and works overtime whenever he can.
68It was submitted he was forced to work because of his mortgage. I accept that that might be so but I find his work is also a source of enjoyment which gives him purpose and stability.[26] . I find he remains anxious about work but his history of full-time ongoing work and recent promotion suggests he is coping well despite such anxiety. I find he has nightmares a few times a week, as he has deposed.[27] He suffers from insomnia.
[26] PCB 21, paragraph 51.
[27] Exhibit P1, plaintiff’s first affidavit, paragraph 40.
69He deposes, and I quote, "There are multiple nights a week where I only get two to three nights sleep before I have a nightmare and wake up."[28] I accept this is the case where he sleeps regularly, two to three nights per week, and then has a nightmare on occasion which wakes him up. I find his sleep is similarly affected by this broken sleep. I find he has occasional thoughts of suicide.[29]. Such thoughts are fortnightly, according to Dr Walton.[30]
[28] Exhibit P1, plaintiff’s first affidavit, paragraph 40.
[29] Exhibit P1, plaintiff’s first affidavit, paragraph 43; plaintiff’s second affidavit, paragraph 11.
[30] PCB 39.
70Having made those critical findings of fact, it now falls to determine whether the consequences overall satisfy the relevant test. Labels used to describe diagnosis such as PTSD, or chronic anxiety and depression are of limited use. To this extent, I consider focus should be on the found consequences said to flow from the accepted workplace injury. This should be done in the way the majority of the Court of Appeal set out in Katanas. It requires an assessment of all found consequences to determine on which side of the line the assessment falls. This calls as much for an assessment of what is lost as to what is retained.
71I consider Mr Radovanovic has retained very substantial function. He has the ability to maintain his home by himself. He is independent in all of his activities being the household, shopping, cooking and financial matters. He drives with no limitation; he works with no limitation. His history demonstrates the ability to travel within Victoria, places such as Hadfield and Torquay and to make extensive overseas trips.
72His social media shows his participation and enjoyment of these trips. While he deposes, and I accept, that his enjoyment is not as it once was, he is still able to participate and derive some pleasure from these things.
73Similarly, he can socialise, go to friends' houses, social functions, sporting events and concerts. While this may not be as frequent or as enjoyable as before, he can and does do these things. He can form intimate relationships. These things show very significant retained function I find.
74I have found he suffers from nightmares, sleep deprivation and occasions suicidal thoughts. However, he coped with the nightmares and sleep deprivation and is able to function reasonably well. As I have set out, his suicidal thoughts, I find, do not stop his occupational or social functioning.
75While sleep deprivation over this longer period is a strong factor supporting the severity of this condition, I consider this must be balanced out by his history of ongoing work and participation in a range of enjoyable and social pursuits, his maintenance of friendships and ability to form intimate relations.
76It was suggested Mr Radovanovic was a typical stoical person who simply endured as best he could. Reliance was placed on Haden Engineering[31] at paragraph 13, and as such ought not be penalised by that in the overall assessment.
[31] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, paragraph 13.
77I make it plain that Mr Radovanovic has done more than simply endured. He has actively increased his work in taking on overtime, gone on overseas holidays and continued to do such things as social activities and to form new relations as I have set out. I find this evidence of the consequences, no matter that they are present and being tolerated are not impacting
Mr Radovanovic to the extent which could be considered to result in satisfaction at paragraph (c) of the definition of "serious injury."78I am very mindful here that the word "severe" has been chosen specifically by Parliament to denote a standard and has a different meaning than the word "serious" used elsewhere in the section.
79I accept that the workplace injury here has had serious consequences for
Mr Radovanovic. However, called on to make a finding as to which side of the line Mr Radovanovic's case falls on, I find he does not satisfy the legislative test amounting to having a severe mental or behavioural disorder. Consequently, I will dismiss the proceedings.
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