Zeinstra v Northeast Health Wangaratta

[2013] VCC 395

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT WANGARATTA

DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-11-06351

FRANCIS ZEINSTRA	Plaintiff
v.
NORTHEAST HEALTH WANGARATTA	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wangaratta
DATE OF HEARING:	9 -12 April 2013
DATE OF JUDGMENT:	29 April 2013
CASE MAY BE CITED AS:	Zeinstra v Northeast Health Wangaratta
MEDIUM NEUTRAL CITATION:	[2013] VCC 395

REASONS FOR JUDGMENT

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Catchwords:             Accident compensation – Serious Injury – Plaintiff a psychiatric nurse working in aged care – Suffered heart attack with resulting depression and anxiety – Whether the plaintiff’s depression and anxiety a “permanent severe mental or permanent severe behavioural disturbance or disorder” – s.134AB Accident Compensation Act 1985.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Jewell SC with Mr G. Pierorazio	Nevin Lenne & Gross
For the Defendant	Mr K. Galpin with Ms L. Glass	Wisewould Mahony

HIS HONOUR:

1The plaintiff Francis Zeinstra was employed as an aged care psychiatric nurse with the defendant, Northeast Health Wangaratta. On 30 November 2008, The plaintiff experienced left sided chest pain and was taken to hospital where it became apparent that he had suffered a “myocardial infarction”, or heart attack. He claimed that the heart attack was caused by the stresses of an excessive workload in the previous weeks, after the resignation of another psychiatric nurse.

2Following the heart attack, the plaintiff developed a depressive illness from which he continues to suffer. He attributes his depression and associated symptoms to the circumstances of his employment in November 2008. The depression has affected his sleep, his mood, his motivation and his ability to perform the activities of daily life, including his continued employment as a psychiatric nurse in aged care. The plaintiff returned to work in March 2009, but since July 2011 has been unable to continue because of what he considered were extremely stressful conditions. Further attempts to return to work were unsuccessful.

3The plaintiff’s employment was terminated in January 2013 due, in part, to the defendant being unwilling to accommodate a return to work in his chosen area of aged care. He has not returned to work as a psychiatric nurse.

4The plaintiff seeks leave to issue a proceeding for pain and suffering damages pursuant to s134AB of the Accident Compensation Act 1985. The issues for determination are:

a.whether Mr Zeinstra’s depressive condition developed as a result of the heart attack and;

b.if so, whether the depression is sufficiently severe as to satisfy the statutory test for “serious injury”.

The plaintiff’s medical treatment, diagnosis and prognosis

5On 30 November 2008, it was thought the plaintiff had suffered a heart attack. He attended the hospital at Wangaratta with chest pains, and investigations at Wangaratta and the Royal Melbourne Hospital confirmed the likely diagnosis. He was treated by the insertion of a bone metal stent to restore blood supply. He was also commenced on medications for this condition. The medical opinion is that he is unlikely to suffer another heart attack in the foreseeable future.

6Dr Leslie Bolitho, a consultant physician, has treated the plaintiff for his heart condition since shortly after his heart attack in December 2008. He recorded the plaintiff telling him that “due to reduced funding there was increased workload and he found this rather stressful”. Dr Bolitho noted that, although the plaintiff’s coronary heart disease was “a pre-existing condition and independent of his work…certainly stress, depression and worry could aggravate his symptoms”.

7The plaintiff lodged a WorkCover claim form in respect of his heart attack, on 26 June 2009. The plaintiff described the cause of the heart attack as the “stress of working over period of time with no adequate resources”. The claim was ultimately accepted and the plaintiff continues to receive weekly benefits.

8The plaintiff returned part-time to his employment in February 2009 working in the Wangaratta area rather than the Wodonga area where he had worked for many years. His general practitioner of 24 years, Dr Nankervis, said that, “He rapidly became disenchanted with work…On return to work, his stress levels appeared to escalate with ongoing friction with other staff members”. Dr Nankervis said that after the plaintiff returned to work, “He started displaying symptoms of depression with early morning waking etc. He was having difficulty coming to terms with having had a heart attack”. Dr Nankervis noted that the plaintiff was “reluctant to accept counselling or antidepressant therapy”.

9In October 2009, Dr Nankervis described the plaintiff’s condition as “reactive depression since his heart attack with low mood, low self-esteem, and early morning waking”. From 22 October 2009 to 2 March 2010, the plaintiff’s employer arranged for him to see a psychologist, Ms Angela Macpherson. She said that he presented with “moderate symptoms of depression” and “mild symptoms of stress”.

10In December 2009, the plaintiff experienced “chest tightness” which required a visit to the hospital emergency department. He commenced taking the anti-depressant, Mirtazapine, which “assisted with his sleep disturbances”, but he had been “reluctant to increase the dosage because it tends to make him drowsy”. In fact, from the report of Ms Macpherson, it appears that by 2 February 2009 “he wasn’t taking anti-depressants”. The plaintiff last saw Ms Macpherson on 2 March 2010 when she considered that, “all psychological symptoms appeared to have ameliorated”. In October 2011, the Mirtazapine was replaced with Cipramil. Ms Macpherson’s diagnosis and opinions are not shared by some other medical practitioners who saw the plaintiff at thistime.

11The plaintiff continued working until 30 June 2011. On 8 July 2011, he lodged a second workers injury claim form claiming that he was suffering “stress and depression”. He said, “My workload caused me to become stressed. I couldn’t sleep and became exhausted…I saw my general practitioner who put me on sick leave and referred me to a psychologist”. On 25 March 2011, Dr Nankervis recorded in clinical notes that the plaintiff was “feeling exhausted – no apparent cause other than heavy work load this week. Slept poorly last night – ongoing early AM waking”.

12On 2 June 2011, Dr Squires (a colleague of Dr Nankervis) recorded, “Tearful and ?depressed. Loves his job but finding it all too much at the moment, could not get out of bed this morning. Work load heavy and unrealistic, never enough time to complete anything. Did have some counselling with Angela Macpherson after AM1 but did not relate to her that well. Sometimes teary at work”. Dr Squires referred the plaintiff to a psychologist, Mr Tony Jago.

13The plaintiff first saw Mr Jago on 23 June 2011  “for assistance with symptoms associated with the psychological concomitants of major depression”. On 30 June 2011, Dr Squires noted that Mr Jago had suggested to the plaintiff that “he really needs to have some time off under workcover as burnt out”. Mr Jago has continued to see the plaintiff monthly for what he described as “reality therapy”.

14On 12 September 2012, the plaintiff saw a psychiatrist, Dr David Tofler, for treatment. Dr Tofler made a diagnosis of “an anxiety depressive disorder with significant insomnia”. Dr Tofler trialled the plaintiff on Valdoxan as a replacement anti-depressant for Cipramil. The Valdoxan was replaced by Efexor and then Lexapro with Mirtazapine later being reintroduced. Dr Tofler has had continued contact with the plaintiff on six further occasions by Skype or telephone. He noted the plaintiff’s ongoing “fluctuating depressive and anxiety symptoms”. The plaintiff remains under the care of Dr Nankervis, Dr Tofler and Mr Jago for his depression.

15The plaintiff was assaulted by a psychiatric patient in 1989 and suffered significant spinal injuries as a result. He underwent laminectomies in 1991 and 1993. In June 2011, he presented to Dr Squires with “weakness in the left leg and difficulty walking”. His back continued to present as a significant problem in late 2011, with Dr Nankervis observing on 12 December 2011 that the plaintiff was “probably fit to resume work if not for back problems”. On 9 January 2012, an L4-51 posterior decompression and fusion was performed.

16The plaintiff was therefore not physically fit to return to work until the end of May 2012, at which time the plaintiff’s back condition meant he was “able to progressively return to his previous work duties”. The plaintiff stated that after the back surgery he “would have gone back to part time gradual increasing work.” This was not however possible because the defendant proposed that the plaintiff “commence work in Community Psychiatry”. Dr Nankervis said that he “refused to consider this option” for the plaintiff because of the circumstances of the workplace injury in 1989. The defendant terminated the plaintiff’s employment effective on 25 January 2013.

17Dr Nankervis’ present opinion is that, in respect of the plaintiff’s back, the “prognosis for recovery remains good. His heart condition is stable. His mental state remains a problem, with ongoing depression and anxiety worsened by his cessation of employment with Northeast Health Wangaratta. He continues under the care of Dr David Tofler for this condition. I do not envisage that he will be able to return to any employment in the foreseeable future”.

18Dr Tofler’s view is that the plaintiff’s “prognosis is poor and complete recovery is unlikely in the foreseeable future”. He said that the plaintiff’s “persistent symptoms severely limit his employment options and leisure activities…These difficulties have persisted despite treatment and are likely to continue…He can be regarded as unable to return to the type of work that he did before and unlikely to ever be able to do so. Future treatment would be regular review and counselling with appropriate adjustments to medication”.

19In September 2012, Mr Jago considered that the “amelioration” of the plaintiff’s adjustment disorder was “likely to be influenced significantly by the timing of the resolution of the WorkCover matter”. Mr Jago was “positive” about the prospects of the plaintiff “returning to pre-injury duties in Aged Psychiatry” or “appropriate alternative duties”.

20Dr Nankervis, Dr Tofler and Mr Jago each gave oral evidence upon the hearing of the application. Dr Nankervis said that the plaintiff had gone from a very confident man prior to the heart attack into a depressive condition. The added stresses [arising from the conflict with his employer] added to the depression although his condition arose from the heart attack. The plaintiff had been suffering depression “since his heart attack”, and he was worse when he was off medication.

21Dr Nankervis thought that the plaintiff was unlikely to return to any form of employment. The defendant was not prepared for the plaintiff to return to his aged care position on a part time basis and there were no private employers in North East Victoria offering positions for aged psychiatric services.

22Dr Tofler gave evidence that “despite medication [the plaintiff] will continue to have ongoing disability”. After his heart attack he was unable to manage. He became insecure and anxious about a repeat attack. Since September 2012, when he commenced to see the plaintiff, there had not been any sustained improvement. The critical areas where improvement was needed were in sleep, energy levels, concentration, personal organisation, confidence and thinking, his fears and preparing to put himself under pressure. Dr Tofler also stated, “I think that there is a proportion of people who don't improve to the point where they overcome their disability or their vulnerability to stress and I suspect that he may be in that category - in fact it's fairly apparent.  But despite that, counselling should continue to enable him to adjust to his degree of disability and to make the most of his remaining function”.

23Mr Jago said that once the plaintiff’s Court matters resolved, and he got back into work, then he was likely to return to rational based thinking. Applying the assessment outcome rating scale, the plaintiff had initially low scores. These had improved but, after almost two years, were still well below a level indicating recovery. He was optimistic that the plaintiff would reach that level.

24Medico-legal examinations by cardiologists, psychiatrists and psychologists generally confirmed that the onset of serious depression following a heart attack was not uncommon in men who had been active beforehand. Whilst the risk of further heart attack can be significantly reduced by medication, “the progress [of] psychological and psychosocial aspects are more difficult to predict”.

25In October 2009, the plaintiff was diagnosed by an examining psychologist with an “adjustment disorder with depressed mood” and in February 2010, by a further examining psychologist with “adjustment disorder with depressed mood (chronic)”. In July 2011, an examining psychiatrist considered that the plaintiff had “a major depressive disorder, moderately severe to severe, non-psychotic type”. In August 2012, an examining psychiatrist considered that the plaintiff had “an adjustment disorder with mixed anxiety and depressed mood with main focus on his adjustment to the heart attack which had shocked him”. In February 2013, a forensic psychiatrist diagnosed the plaintiff as having a “chronic major depressive disorder”. It was noted that the plaintiff’s “current symptoms of depression, anxiety and anger and reduced concentration interfere with his ability to undertake his pre-injury job and interfere with his ability to enjoy social activities, but not undertake domestic tasks”.

Effect on the activities of daily living

26The plaintiff’s depression and anxiety resulted from his heart attack. He has a fear that he may suffer another heart attack and die. This affects his approach to all aspects of his life, particularly his work. Previously, the plaintiff was a hard working psychiatric nurse working with the aged and who, as his supervisor said, “tended to go the ‘extra mile’” for his clients. He engaged in racing car driving which he described as a great “thrill”. He was categorised as a “Type A” personality by one examiner. The plaintiff considers that he is a much more “tense” person following the heart attack.

27After the heart attack, the plaintiff returned to work and remained working as a psychiatric nurse (although not in his pre-injury area at Wodonga but closer to his home in Wangaratta) for about two years. There were conflicts with his employer about returning to work in the Wodonga area, his workload, and later after July 2011, whether he should be moved from the aged to general psychiatric nursing. He was offered positions by his employer at the Kerferd Clinic or in triage in adult psychiatry, however, “both jobs my GP felt were too stressful for me, more stressful than where I'd been working in aged psychiatry”. The plaintiff also found it stressful that his employer was not facilitating his return to aged psychiatry.

28The plaintiff always hoped to return to his pre-injury employment and Dr Nankervis supported him in this goal. Defendant’s counsel, Ms Galpin, submitted that this attitude was indicative of a capacity to pursue that employment. Further, she submitted that the later conflict with his employer about the type of work he was to perform were stresses unrelated to his original heart attack.

29The plaintiff’s employment as a health care professional and his anxiety and depressive condition meant his employer needed to ensure that any return to work did not adversely affect the clients of the aged psychiatric service or the plaintiff’s own mental health. The plaintiff’s supervisor acknowledged that she felt he “needed to have more support while he was recovering”. At present, both Dr Nankervis and Dr Tofler consider it unlikely that the plaintiff will be fit to return to his pre-injury employment in the foreseeable future.

30The plaintiff did for a time return to his motor sports, but no longer drives his racing car. He has recently assumed the office of President of the Wangaratta Club and attends social gatherings two evenings each week, however as he said, he “does not always look forward to going”. At home, he now rises in the morning to take his wife to work and then attends a gym rather than staying in bed as he did previously.

31These are positive signs. There are some activities to which he has not returned, including bike riding and camping, as he has lost the energy and motivation to do so. It is, however, difficult to make a comparison with the level of activity pre and post a psychological injury. As the plaintiff said, there may be little difference superficially with his socialisation, although he is now a more tense person and more subdued. He remains disabled in his sleep, energy, intimate relations, motivation, concentration, angry responses and his emotionally labile. His medications affect his alertness and energy levels. He described himself as having previously been a “fit and active individual” who was “proud” of his long work history from which he had derived “a lot of enjoyment”. He now spends “a lot of my time at home” and does not feel that he is “able to work”.

Conclusions

32Ms Galpin submitted that the plaintiff’s anxiety and depression were also referable to other stresses in the plaintiff’s life, including his partner’s daughter’s position and other employment issues including the conflict with his supervisor. She submitted that his condition was minor and had been overtaken by a different injury and the response to other matters including the personal issues related to his partner’s daughter and unrelated employment matters.

33I consider, however, that the preponderance of evidence suggests that the principal stress in the plaintiff’s life was the psychological response to his heart attack. Further, I consider that the other issues arising during the course of his employment, including the reasons he went off work in July 2011 and has not returned to the position offered subsequently by the defendant, are unrelated to the psychological issues which resulted from his heart attack.

34Ms Galpin also relied upon the statement by Mr Jago in his oral evidence that the resolution of his “court matters” should assist in the plaintiff’s return to “rational based thinking”. Mr Jago did, however, suggest that “getting back into work” would also be an important part of the process. Ms Galpin did not cross-examine Mr Jago.

35Dr Nankervis and Dr Tofler, and other medical examiners, consider that a return to work is unlikely and that the plaintiff’s psychological problems are primarily related to the heart attack he suffered and the fear of a repeat episode. After nearly two years of counselling, Mr Jago remains optimistic for the plaintiff’s recovery. However, the preponderance of evidence suggests that this is unlikely in the foreseeable future.

36The plaintiff has suffered anxiety and depression for over four years following his heart attack. He has been on anti-depressants and sleeping medication for much of that period. His mental responses and functioning, and therefore his activity levels, have been significantly affected. This is likely to continue for the foreseeable future. In the circumstances, I consider that the consequences to the plaintiff of the mental disorder comprised by his anxiety and depressive condition might fairly be described as “severe” and that the plaintiff satisfies the statutory test for “serious injury”.

Order

37The plaintiff will have leave to bring a proceeding limited to claiming pain and suffering damages arising from the heart attack he suffered on 30 November 2008.

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Certificate

I certify that these 8 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 29 April 2013.

Dated: 29 April 2013

Philippa Gilkes

Associate to His Honour Judge Anderson