Zvirotich v St Hilliers Contracting Pty Ltd
[2010] VCC 514
•24 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03407
| ANTON ZVIROTICH | Plaintiff |
| v | |
| ST HILLIERS CONTRACTING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 and 12 May 2010 |
| DATE OF JUDGMENT: | 24 May 2010 |
| CASE MAY BE CITED AS: | Zvirotich v St Hilliers Contracting Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0514 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – claim for serious injury with respect to a psychiatric injury resulting from bullying between May 2003 and September 2004, and a lower back injury resulting from a lifting incident which occurred on 1 April 2004 – claim for both pain and suffering consequences and loss of earning capacity consequences – whether the plaintiff's failure to pursue rehabilitation and retraining required by subsection (38)(g) was fatal to the plaintiff's claim for loss of earning capacity – leave granted for pain and suffering in each case: section 134AB (37)(a), (c) and (38)(c), (d) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis | Vincent Verduci & |
| With Mr A Ingram | Associates | |
| For the Defendants | Mr R Dyer | Herbert Geer |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr B Collis QC appeared with Mr A Ingram of Counsel for the plaintiff, and Mr R Dyer of Counsel appeared for the defendants.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered his Court Book ("PCB"), pages 11-16; 35-42: 44-46; 47-124C and 128-132: Exhibit A • The defendants tendered their Court Book ("DCB"), pages 1-70; 63-70 and 86-148: Exhibit 1 5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) and (c) of the Act .
The Statutory Scheme
6 The relevant considerations which apply to such an application based upon subsection (37)(a) are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (supra)
(f)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[4] (1994) 1 VR 436
7 The relevant considerations which apply to such an application based upon subsection (37)(c) not referred to above, are as follows:
(a)
Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious” to the extent of being “severe".
(e)
Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise .
(j)
In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
The Plaintiff's Background
8 The plaintiff was born in Croatia on 9 January 1948. He is now sixty-two years of age. He arrived in Australia in 1971.
9 Subsequently, the plaintiff was fully employed between 1971 and 1989. He suffered injury in an industrial accident in 1989 in the course of his employment with John Holland Construction.
10 He was not employed again until May 2003. He registered with the labour hire company which referred him to the first defendant. He was thereafter employed by the first defendant as a cleaner on a construction site at the GPO in Melbourne.
The Psychiatric Injury
11 The plaintiff alleges that he was exposed to conduct on the part of fellow workers which amounted to bullying, harassment, discrimination and intimidation ("the bullying") which he alleges resulted in him suffering a psychiatric injury.
12 In his first affidavit sworn 17 October 2008, the plaintiff referred to the conduct of his fellow workers which constituted the bullying as follows:
"6.
I was not able to use the workmen's lift because if I did so I would be provoked into arguments by the lift driver Bob Melton who always discriminated against me.
I used to be called derogative names instead of my proper name. On one occasion I was cleaning the toilet area and had completed cleaning the ladies’ toilets and was mopping the men's toilet when a worker Anton Osborn wanted to use the urinal and I asked him to use the ladies’ toilet when I had finished cleaning. He ignored me and pushed me out of the way. I took this as an insult and demeaning me because I was a cleaner.
Similar incidents and insults happened frequently and that was the
reason why I was avoiding using the workmen's lift.7.
On another occasion the same worker went to get a glass of water from the water bottle which was empty and I was about to replace it. He picked up the empty bottle and threw it violently onto the floor making abuses because the empty bottle was not replaced.
A few months after my work commenced at the GPO the other workers started to belittle me and were offensive and abusive in their behaviour towards me.
They were unjustified complains about cleanliness such as workers spilling debris in the toilets, spilling coffee in the tea room, referred by a derogatory descriptions over the loud system such as dirty wog, shut up you dirty peggy.
Abuses continued over a long time and I complained about my treatment especially abuses by the supervisor Mr Paul Menzies, and there were several meetings in relation to this including meetings with the Union representatives and Incolink and on a number of occasions I had to walk off work because of the way I was treated. It was because of his treatment that I was carrying the bottles up the stairs to keep away from the other workers so as not to suffer continuing abuses."[5]
(sic) [5] PCB 14-15
13 Mr Ivan Dadic swore an affidavit on 14 April 2010 in which he confirmed some of the allegations made by the plaintiff of bullying. He said that he was a shop steward at the GPO worksite. He described his role as assisting workers on the site with industrial issues.
14 Mr Dadic referred, in particular, to a lack of co-operation between the plaintiff and another worker; instructions to workers to modify their behaviour towards the plaintiff; his observation that the plaintiff tried to avoid the other workers who were antagonistic towards him, and the abuse which was levelled at the plaintiff.[6]
[6] PCB 44-46
15 Mr Jim McCaffrey swore an affidavit on 8 February 2010. At the time when the plaintiff was employed by the first defendant, Mr McCaffrey was the first defendant's project manager. Annexed to his affidavit is a statement he made on 27 October 2005 to an insurance loss adjuster.
16 It is abundantly clear from Mr McCaffrey’s statement that he was in receipt of complaints by the plaintiff of bullying. He referred to an investigation into the plaintiff's complaints, and an instruction given to a supervisor that the conduct of so-called offenders was of concern and was not acceptable.[7]
[7] DCB 6-7
17 The plaintiff submitted that he suffered a psychiatric injury with consequences which met the statutory test for pain and suffering and loss of earning capacity.
The Lower Back Injury
18 The plaintiff alleges that on 1 April 2004, he suffered injury to his lower back while carrying two 15-litre water bottles at a time from the ground floor of the worksite up stairs to the first, second and third floors ("the lower back injury").
19 The plaintiff alleges that the work was heavy and involved repeated bending, lifting and strain on his lower back, with the result that he suffered injury to his lower back. [8]
[8] PCB 14
The Prior Injuries
20 The plaintiff suffered a psychiatric injury and an injury to his lower back as a result of an incident which occurred in 1989 in the course of his employment with John Holland Construction.
21 The plaintiff was standing on a ladder working on a ceiling. He touched electrical wires which were live, with the result that he suffered electrocution and then fell to the ground off the ladder. He was unconscious for some time.
22 Mr Dyer submitted that the plaintiff was suffering from significant symptoms of the prior psychiatric injury and prior lower back injury just before he commenced employment with the first defendant. Furthermore, he submitted that the symptoms exhibited by the plaintiff as a result of the bullying and the occurrence of the injury were very similar to the symptoms experienced following the electrocution incident.
23 Mr Dyer submitted that the plaintiff could not establish that the psychiatric injury was a compensable injury, and if it was a compensable injury, that the consequences of it could not meet the statutory test for pain and suffering or loss of earning capacity.
24 Mr Dyer conceded that the lower back injury is a compensable injury, however, the consequences of it could not meet the statutory test for pain and suffering or loss of earning capacity.
The Prior Psychiatric Injury
25 The plaintiff was referred to Dr Kaplan, psychiatrist, on 24 January 1991 for treatment. He obtained the following relevant history from the plaintiff:
• He suffered electrocution in November 1989 in the course of his employment with John Holland Construction. • He was treated at St Vincent's Hospital, and after some days was discharged. His symptoms included dizzy spells, pressure in his head, headaches and seeing lights occasionally. • He attempted to return to work on 6 September 1990, which was unsuccessful. • He suffered pain in his neck and lower back which was aggravated by physical activity and a change in weather conditions. He experienced daily headaches. • He described a constellation of psychological/psychiatric symptoms, including anxiety and difficulty relaxing; reaction to sudden or loud noise; lack of energy and tiring quickly; fluctuating appetite; sleep disturbance and nightmares; an unsatisfactory sexual relationship; an unsatisfactory social life; feelings of depression, and a deterioration in his relationship with his girlfriend. 26 Dr Kaplan was of the opinion that the plaintiff had suffered a Post-Traumatic Stress Disorder which was variable. He considered it would subside perhaps over years. He added that he considered that the plaintiff’s recovery from anxiety and depression would be partly determined by his recovery from his physical injuries and his ability to return to the workforce.[9]
[9] DCB 47-53, and in particular DCB 50-53
27 Mr Dyer cross-examined the plaintiff regarding his prior psychiatric injury, and in particular, from the medical records of St Albans Medical Service. Mr Dyer put to the plaintiff that he had obtained treatment from Dr Kuc at that clinic in November 1998; March 2001; 14 August 2002 and November 2002. It was also put to the plaintiff that on those occasions, Dr Kuc prescribed him Serapax, and provided him with certificates of incapacity.[10]
[10] Transcript 18-24
28 Understandably, the plaintiff was unable to recollect with any precision whether what was being put to him was correct or not, but was prepared to accept that if Mr Dyer was quoting from Dr Kuc’s medical records then what was recorded in those records was in all probability correct.
29 Mr Dyer cross-examined the plaintiff in relation to a settlement he obtained on 4 November 2002. The plaintiff accepted an offer of settlement of $83,349 as a redemption of his entitlement to weekly payments of compensation.[11] The settlement offer was made as a consequence of an application by the plaintiff on Holland Stolte Pty Ltd.[12]
[11] DCB 132A-132B
[12] I assume this to be the same entity which has been previously been described as ‘John Holland Constructions’
30 Mr Dyer also cross-examined the plaintiff on the history obtained by Dr Klepfisz, psychiatrist, who examined the plaintiff on 21 June 2001 for NRMA Workers Compensation (Vic) Limited, which was the insurance agent for Holland Stolte Pty Ltd.
31 Dr Kaplan, at the time he last treated the plaintiff for the electrocution injury, diagnosed the plaintiff as having suffered a Post-Traumatic Stress Disorder as part of his symptoms of anxiety and depression.[13] Dr Klepfisz made the same diagnosis, although he was not entirely convinced the plaintiff deserved a diagnosis of Post-Traumatic Stress Disorder.[14] He was also of the opinion that the plaintiff had a limited capacity for work on psychiatric grounds.
[13] DCB 54
[14] DCB 144-147.
32 It was against this background that Mr Dyer submitted that, whatever psychiatric injury the plaintiff suffered after commencing employment with the first defendant, it was little more than a continuation of the plaintiff's previous psychiatric injury suffered as a result of the electrocution incident.
33 Mr Dyer also relied upon the history obtained by Dr Entwisle, psychiatrist, who examined the plaintiff for the defendants on 23 September 1997, 14 May 1998 and 22 June 2009. He cross-examined the plaintiff on the histories recorded by Dr Entwisle and his diagnosis.
34 On the first occasion the plaintiff saw Dr Entwisle he was referred to him by Slater & Gordon, solicitors. On that occasion, Dr Entwisle concluded that the plaintiff was not doing well psychologically. He was poorly motivated. He was drinking heavily, and had an entrenched drinking pattern. He was also socially isolated.[15]
[15] DCB 20a-d. Dr Entwisle expressed that opinion in the setting of being asked to undertake an impairment assessment. The nature of medical opinions offered when an impairment assessment is undertaken differ markedly because the assessor is asked to direct his/her attention to guides to impairment as opposed to a diagnosis directed to a common law claim.
35 On the second occasion the plaintiff saw Dr Entwisle, he was referred by Vincent Verduci, solicitor. Again, he was asked to undertake an impairment assessment. On examination, Dr Entwisle noted that the plaintiff was heavily addicted to medication and alcohol. He was of the opinion that there were factors within the plaintiff himself which were more likely the root cause of his psychological problems rather than the injury.[16]
[16] DCB 20g-20i.
36 On the last occasion the plaintiff saw Dr Entwisle, Dr Entwisle referred to his previous examinations.[17] He obtained a history that the plaintiff continued to drink heavily and had a dependence on medication, such as Panadeine Forte and Serapax.
[17] Curiously, on this occasion he examined the plaintiff for Herbert Geer, solicitors, who acted for the defendants.
37 Dr Entwisle was of the opinion that the plaintiff was suffering from a Chronic Adjustment Disorder and chronic alcoholism. He doubted the degree to which the bullying had contributed to the plaintiff's overall functioning. He repeated his opinion that he considered the plaintiff's alcoholism was a cause of his difficulties with his mood rather than any particular injury.[18]
[18] DCB 18-19
38 The plaintiff denied that at the time when he was employed by the first defendant, he had a drinking problem of the magnitude described by Dr Entwisle. He did not deny that he had resorted to alcohol in the past. He described his present drinking habit as having a glass of wine after a meal. He admitted that he was drinking alcohol to deal with the pain he was experiencing after the electrocution injury. He described it as being something like a tranquilliser.[19]
[19] Transcript 21
39 However, when Mr Dyer put to him that he had been drinking whisky and beer excessively in about 1991, he described his drinking as being more social drinking than excessive drinking, although he conceded that from time to time he drank to a greater extent than merely social drinking.[20]
[20] Transcript 22
40 The medical records of Dr Kuc are difficult to read, however, the plaintiff appears to have last been prescribed medication for a psychiatric problem on 27 June 2001 when he was prescribed Cipramil, and then again on 3 September 2001 when, I assume, he was provided with a repeat prescription.[21]
The Prior Lower Back Injury
[21] DCB 140. The entries I have referred to in addition to those which Mr Dyer referred to are summarised in paragraph 27 above.
41 Mr Dyer relied on a number of histories contained in tendered material which pointed to the plaintiff having a troublesome lower back well prior to commencing employment with the first defendant.
42 Essentially, that evidence is as follows:
• Dr Kaplan obtained a history summarised in paragraph 25 above.[22] •
Dr Andrews, occupational physician, examined the plaintiff some time in late 1991 (perhaps September 1991). She obtained a history from the plaintiff that his lower back "was no good", and if he bent it felt like there was a needle in his back producing a burning pain.[23]
•
Dr Entwisle obtained a history when he examined the plaintiff on 23 September 1997, of pain in the bottom of his spine for which he was prescribed painkillers.[24] When Dr Entwisle examined him on 14 May 1998, he recorded that the plaintiff told him that he had a problem with his lower back for which he probably needed an operation, but that the medical practitioner who gave that advice refused to undertake the operation. He described the nature of the lower back problem as being a disc problem with some nerve involvement. He described having problems with his sleep because of the pain in his spine.[25]
•
Mr Dyer referred to entries from the medical records of Dr Kuc which record complaints of the plaintiff of lower back pain. The entries where reference is made to lower back pain are on 1 May 2000; 20 December 2000; 24 January 2001; 3 September 2001 and 8 February 2002.[26] The next entry which records a complaint of lower back pain is on 18 March 2004. The entry refers to the plaintiff complaining of lower back pain after lifting.[27]
•
When Dr Entwisle examined the plaintiff on 23 September 1997 and 14 May 1998, he obtained a history that the plaintiff was troubled by lower back pain as a result of the electrocution incident.[28]
•
Dr Kuc recorded in his clinical notes on 1 May 2000 that the plaintiff told him that he had suffered lower back pain on and off for twelve years.[29]
•
When Mr Wilde, orthopaedic surgeon, examined the plaintiff on 3 August 2004, the plaintiff told him that he had injured his lower back severely twelve years beforehand.[30]
[22] The plaintiff accepted that if he gave a history of that kind to Dr Kaplan, that it was probably correct - Transcript 14
[23] DCB 56
[24] DCB 20b
[25] DCB 20f
[26] DCB 130-140
[27] DCB 142
[28] DCB 20b and 20f
[29] DCB 138
[30] PCB 79
43 Against what Mr Dyer submitted were histories suggesting that the plaintiff suffered an injury to his lower back of some magnitude which persisted up until the time when he commenced employment with the first defendant, thereafter there is a history recorded by Dr Kaplan in a medical report dated 27 December 2004 in which the plaintiff told him that his lower back pain subsided over the years following the electrocution incident.[31]
[31] DCB 97
Presentation to the First Defendant
44 Mr Dyer cross-examined the plaintiff at some length regarding the state of his general health, and in particular, his psychiatric health and the state of his lower back at the time when he commenced employment with the first defendant in May 2003.
45 The plaintiff admitted that he made no mention of ever having suffered any lower back symptoms or psychiatric symptoms when he had a pre- employment medical examination on 25 August 2003. The only reference to any past ill-health was to a previous ulcer, and hearing loss.[32]
[32] DCB 128-129 and Transcript 14-15
46 Mr Dyer cross-examined the plaintiff, suggesting to him that he deliberately failed to disclose the previous lower back injury and psychiatric injury when he had the pre-employment medical examination. The plaintiff said that he did not give any thought to whether disclosure of those previous injuries might prevent him from obtaining employment. He denied that he was seeing Dr Kuc regularly for medical treatment for either his lower back injury or psychiatric injury at that time.
47 Mr Dyer also cross-examined the plaintiff, suggesting to him that he had either deliberately represented himself as being disabled in order to obtain a redemption of weekly payments, or that he was seriously disabled and that he carried that disablement, caused by his prior lower back injury and psychiatric injury, into his employment with the first defendant.
48 The plaintiff denied that he made such representations. He said that he forced himself to get back to work by pursuing treatment through physiotherapy and other therapies to the point where he was able to return to work in May 2004.[33]
[33] Transcript 49-50
49 The thesis developed by Mr Dyer was that the plaintiff suffered injuries as a result of the electrocution incident which saw the plaintiff obtain compensation through workers’ compensation and social security benefits. The plaintiff was quite happy to portray himself as being seriously disabled until his receipt of the redemption of weekly payments which put him in a position where he had maximised his receipt of compensation payments, after which he then represented himself as fit for work.
50 Mr Dyer submitted that if the plaintiff was truthful in representing that he was seriously disabled between 1989 and May 2004, then it is difficult to accept that he was free from any lower back or psychiatric problem when he commenced employment with the first defendant.
51 Mr Collis, on the other hand, submitted that it really did not matter whether the plaintiff could be and should be characterised in the manner described by Mr Dyer because the plaintiff returned to employment with the first defendant and subsequently engaged in arduous physical activity which he was able to undertake until he broke down because of the bullying and the lifting episode.
52 I have some misgivings about the plaintiff’s evidence. I am not entirely convinced that he was as disabled as he was representing himself to be in 2001 and 2002. To have made what appears to be a dramatic recovery between obtaining the redemption and returning to work with the first defendant in arduous work, seems to me to be remarkable.
53 The conclusions I have reached on this issue are that whether the plaintiff was being truthful or untruthful about his lower back injury and his psychiatric injury between 1989 and May 2004, cannot impinge upon the fact that the plaintiff had a very significant road test of his physical and mental capacity for work when he commenced employment with the first defendant.
54 I do not accept the plaintiff's evidence that he was completely free from symptoms of the previous lower back injury and psychiatric injury, or that he was an occasional drinker by May 2004.
55 It seems to me to be remarkable that he would give such an errant history to Dr Entwisle of significant alcohol intake, leading Dr Entwisle to conclude that the plaintiff had a very real and significant problem with alcohol, when in fact he says that he was abstemious. I will return to this subject later.
Did the Bullying Cause an Injury?
56 I accept the plaintiff’s evidence that he was the subject of bullying. Whilst I have some misgivings about the plaintiff's evidence overall, I had less on this score because his version of events is confirmed by Mr Dadic and by Mr McCaffery.
57 The next question is whether the bullying to which the plaintiff was subjected caused an injury?
58 It is clear from my summary and analysis of evidence of Dr Entwisle that he is not convinced that whatever psychiatric symptoms the plaintiff experiences now are not significantly related to his employment with the first defendant. He said the following:
[34] DCB 19
"4. His current presentation therefore represents an aggravation or exacerbation of his pre-existing condition. Whilst he makes much of his various issues in the workplace and his physical injury, he did so similarly when I saw him 12 years ago. 5. Whilst on the basis of his account, employment would be regarded as a significant contributing factor to his current condition, my two previous assessments and opinions at that time would raise significant doubts as to the degree to which his more recent issues are in fact contributing to his overall functioning. This man has a long history of maladjustment and dysfunction, having led an isolated existence previously and having problems maintaining relationships. I was of the opinion that it was quite likely it was his alcoholism which caused his difficulties with his mood rather than any particular injury at that time. I believe the same possibility occurs at this time."[34]
59 In his last report dated 6 May 2010, Dr Kaplan summarised his opinion and the basis for it as follows:
"Mr Zvirotich continues to suffer from a Chronic Adjustment Disorder with Anxiety and Depressed Mood. This condition is related to the victimisation to which he was subjected over a prolonged period of time and which led to his final decompensation, resulting in him ceasing work. His chronic pain has contributed to his anxiety and depression. He continues to experience intrusive thoughts and dreams about his work stresses, and describes a range of symptoms, including sleep and appetite disturbance, difficulty with memory and concentration and social withdrawal, he suffers from an erectile disorder and this condition is symptomatic of his underlying anxiety, depression and loss of self- esteem.
Given the long duration of Mr Zvirotich's psychiatric condition, his prognosis is likely to be unfavourable. His psychiatric condition probably renders him incapable of employment.
Mr Zvirotich was suffering from alcohol abuse and this condition was probably symptomatic of his underlying anxiety and depression, and represented a form of medication. He appears currently to be in remission with regard to this condition, however, he remains at risk of relapse given his continuing depression and anxiety, and any further stresses will increase this risk."[35]
[35] PCB 124B-124C
60 Dr Kaplan recommenced treating the plaintiff in about December 2004. In his medical report dated 27 December 2004, he referred to the fact that he had intermittently treated the plaintiff until 27 April 1993. I accept that he was aware of the plaintiff’s psychiatric injury following the electrocution incident. Dr Kaplan subsequently treated the plaintiff intermittently from December 2004 until the time when he wrote his last report.
61 There are a number of features of Dr Kaplan's impression of the plaintiff which are troubling:
• Dr Kaplan does not distinguish between the psychiatric injury which he considered the plaintiff suffered as a result of the bullying from the symptoms of the psychiatric injury produced by the plaintiff's reaction to his lower back injury. • The history taken by Dr Kaplan at the time he wrote his last report on 6 May 2010 that the plaintiff was suffering from alcohol abuse representing a formal self-medication does not sit at all well with the plaintiff's evidence that he is now an abstemious, and is entirely consistent with the opinion of Dr Entwisle regarding the place of alcohol abuse in the production of the plaintiff’s psychiatric injury. Although Dr Kaplan refers to the plaintiff being in remission, I assume he means in remission in relation to his alcohol abuse. 62 I do not consider that there is any merit in the submission made by Mr Dyer that the question, whether the plaintiff suffered a compensable injury as a result of them bullying, is "open".
63 Firstly, Dr Kaplan knew of the plaintiff's psychiatric injury caused by the electrocution incident, and was in a position to make a comparison between the symptoms which emerged as a consequence of the electrocution incident and the symptoms complained of by the plaintiff caused by the bullying, and whether the bullying caused those symptoms.
64 Dr Kaplan analysed the plaintiff's complaints and concluded that the bullying is responsible for the psychiatric injury. I accept his opinion that the bullying has caused the plaintiff a compensable psychiatric injury.
65 Secondly, although Dr Entwisle parts company from Dr Kaplan for reasons which are now obvious, he was not of the opinion that the plaintiff had not suffered a compensable injury caused by the bullying. Rather, he considered that the current cause of the plaintiff symptoms were probably the plaintiff's long history of maladjustment and dysfunction; his isolation and his alcoholism.
66 Therefore, I find that the plaintiff suffered a compensable psychiatric injury. Furthermore, I find that the compensable injury has caused a permanent mental or permanent behavioural disturbance or disorder.
Serious Injury – the Compensable Psychiatric Injury
Pain and Suffering
67 I accept that the plaintiff was probably in a reasonable state of physical and mental health when he commenced employment with the first defendant in May 2004.
68 I accept that he was bullied, and that as a result he suffered a compensable psychiatric injury.
69 The plaintiff described the nature and extent of the bullying, which I have summarised in paragraph 12 above, and the treatment which he subsequently had, in his two affidavits.[36] Although the plaintiff's account of the consequences of the bullying are stated rather briefly, they are nonetheless consistent with the histories which he later gave to Dr Kaplan and Dr Entwisle. They are descriptions of systemic and significant bullying.
[36] PCB 15-16 and 36-39 and 41
70 The measure of the nature and extent of the psychiatric injury is demonstrated by the fact that the plaintiff saw Dr Kuc on 22 September 2004 complaining that he was being harassed, racially abused and threatened as a result of conduct of other workers.[37]
[37] PCB 51
71 Dr Kuc considered the complaints made by the plaintiff and his symptoms to be of such seriousness to warrant referral of the plaintiff to Dr Kwong, psychiatrist. Dr Kwong considered that the plaintiff would be better served by being referred to Dr Kaplan because he had treated the plaintiff previously.
72 Dr Kaplan saw the plaintiff in December 2004 and has treated the plaintiff since. He has provided eight medical reports dated 27 December 2004; 20 June 2006; 16 November 2006; 25 August 2008; 20 October 2008; 22 December 2008; 7 December 2009 and 6 May 2010.[38]
[38] PCB 97-124C
73 Dr Kaplan's medical reports are at sufficient intervals to demonstrate the treatment he has afforded the plaintiff over various periods of time between December 2004 and the present time. It has provided me with a very good yardstick by which to judge what treatment the plaintiff has been afforded; the symptoms which have been and are being treated, and the nature and extent of those symptoms and their consequences.
74 Initially, Dr Kaplan was of the opinion that the plaintiff was becoming increasingly anxious and depressed, warranting a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that it was likely to require supportive psychotherapy.
75 Subsequently, Dr Kaplan treated the plaintiff with medication, such as, Oxazepam (a minor tranquilliser) and Mirtazapine (an anti-depressant).[39] Later, and it least by late 2008, the plaintiff was treated with Serapax (for anxiety) and Temazepam (for anxiety). He had previously been treated with Escitalopram (an antidepressant) which had been discontinued.[40] By at least late 2009, he was being treated with Oxazepam (for anxiety).[41] At that time, Dr Kaplan was of the opinion that the anti-depressants seem to have had little impact upon the plaintiff's depressive symptoms.
[39] PCB 105
[40] PCB 114
[41] PCB 123
76 Throughout all of these medical reports it is very clear that there is a consistent pattern of symptoms which the plaintiff told Dr Kaplan were plaguing him, consistent with the summary of those symptoms which I summarised in paragraph 59 above.
77 Dr Kaplan's prognosis is an unfavourable one. So much so that he considered that the plaintiff might relapse into the use of alcohol given the level of his depression and anxiety and exposure to any other stresses.[42]
[42] PCB 124C
78 Whilst Dr Entwisle and Dr Kaplan do not agree on the diagnosis of the plaintiff’s psychiatric problems, Dr Entwisle nonetheless painted a gloomy picture of the plaintiff’s future in terms of general functioning and capacity for work.[43]
[43] DCB 19
79 Dr Kuc was also of the opinion that the plaintiff had a gloomy future. He was of the opinion that the plaintiff was unfit for any work in the future, but as a result of both his chronic lower back condition and associated depression. He did not distinguish between what those two conditions individually produced in terms of fitness for work.[44] Dr Gurtu, general practitioner, who took over the plaintiff's care after Dr Kuc retired, was of a similar opinion.[45]
[44] PCB 53-54
[45] PCB 59
80 I do not accept the submission made by Mr Dyer that there is a need for any so-called disentangling. It is clear enough to me that the necessity for any so- called disentangling only arises when the consequences are contributed to by both the plaintiff's psychiatric injury and lower back injury in the absence of evidence enabling me to distinguish what consequences are caused by each discrete injury.
81 I do not see the difficulty which Mr Dyer referred to. Whilst Dr Kaplan chose to refer to chronic pain as a contributor to the plaintiff's anxiety and depression, it is abundantly clear to me that Dr Kaplan has obtained a consistent history from the plaintiff of psychiatric symptoms which have driven Dr Kaplan to make a psychiatric diagnosis and to treat the plaintiff with medication directed specifically to an attempt to ameliorate the anxiety and depression which currently plagues him which resulted from the bullying.
82 In making a value judgment whether a compensable psychiatric injury meets the statutory test for pain and suffering, there are certain common features which are most often present. Consistent complaints of significant psychiatric symptoms, the necessity for ongoing psychiatric treatment, and the necessity for the prescription of medication. All of these characteristics are present here, and according to Dr Kaplan, are unlikely to reduce in the future, but could be aggravated, depending upon the plaintiff's exposure to stresses in his life.
83 I have expressed some doubt about the plaintiff's veracity. Despite that, I accept that he was bullied, and that the bullying produced a mental breakdown which forced him to resort to significant medical treatment which he has now endured at the least from late 2004 to the present time - a period of six years.
84 I am impressed by the opinion of Dr Kaplan and his underlying pathway of reasoning and analysis. I am comfortable in accepting his opinion as to the cause and the gravity of the plaintiff’s psychiatric injury.
85 I acknowledge that subsection (38)(d) requires me to determine the severity of the consequences to the plaintiff by having regard to the fact that in order to be so satisfied I must conclude that the consequences are more than “serious”.
86 For the foregoing reasons, I am of the opinion that the plaintiff has suffered consequences of a behavioural disturbance or disorder which deserve the description "severe". I have reached that conclusion by making a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, which may fairly be described as more than “serious” to the extent of being “severe”.
87 For the sake of completeness, I do not accept the evidence of Mr McCaffrey, that in some way the plaintiff finely tuned his claim for compensation for his compensable psychiatric injury to the time when he was told by Mr McCaffrey that the project on which he was employed was nearing completion and his services would no longer be required.[46]
[46] DCB 8
88 To accept that submission would mean that I would have to conclude that the plaintiff is an utterly conniving and deceitful man, that no bullying occurred, and that Dr Kuc, Dr Kaplan and Dr Entwisle are completely wrong in the conclusions they reached that there is a causal connection between the bullying and the onset of the plaintiff’s psychiatric injury.
89 In the end, the conclusion I have reached is that the coincidence of the plaintiff making his claim for compensation and the completion of the project did not have the sinister appearance which the defendants believe it has.
90 I am not persuaded that the plaintiff has satisfied the statutory test for loss of earning capacity. I will deal with his application in that regard later and at the same time as his application in that regard with respect to his lower back injury.
Serious Injury – Compensable Lower Back Injury
91 Following the occurrence of the lower back injury on 1 April 2004, the plaintiff was treated at the Royal Melbourne Hospital that day. The plaintiff saw a medical practitioner at the hospital. On examination, he was tender over his cervical, upper thoracic spine and over his lumbosacral junction. The examination was otherwise normal. He was prescribed Ibuprofen and Panadeine Forte. He was told to return if there was any deterioration in his condition.
92 Subsequently, the plaintiff saw Dr Kuc. Dr Kuc referred the plaintiff to have a CT scan which was taken on 14 April 2004. It demonstrated a postero-lateral disc protrusion at L4-5 with possible impingement on the right exiting nerve root.[47]
[47] PCB 55
93 Dr Kuc referred the plaintiff to have physiotherapy. He also referred the plaintiff to Mr Wilde, orthopaedic surgeon.
94 The plaintiff first saw Mr Wilde on 3 August 2008. He reviewed the plaintiff on 16 December 2004 and 2 April 2008, and conducted a medico-legal examination on 18 September 2009.
95 In addition to the CT scan taken on 14 April 2004, Mr Wilde had available for his use an MRI scan which was taken on 29 November 2004, and a second CT scan which was taken on 19 June 2009.
96 The plaintiff gave a history to Mr Wilde of suffering lower back pain and pain radiating into his left leg with pins and needles in his left foot. Mr Wilde was of the opinion that the plaintiff was suffering from an aggravation of lumbar spondylosis without radiculopathy. He considered there was probably some degree of asymptomatic degenerative disc disease present in the plaintiff’s lower back, and that the lifting incident caused further internal disc derangement precipitating the onset of symptoms.
97 Mr Wilde was also of the opinion that the plaintiff's prognosis was poor. He considered that he would always suffer low-grade symptoms of chronic lumbar pain and stiffness. He considered that the plaintiff had no current work capacity, and that it was likely that he would remain disabled for the foreseeable future.[48]
[48] PCB 89-96, and in particular at 94-95
98 Dr Kuc was of a similar opinion to Mr Wilde, however, he did not distinguish between the plaintiff’s lower back injury and his psychiatric injury in reaching the opinion that the plaintiff was unfit for any work in the future.[49] The plaintiff has made consistent complaints to Dr Gurtu of lower back pain.
[49] PCB 54
99 Dr Gurtu was of the opinion that the plaintiff was not capable of undertaking any work and was unlikely to by reason of his lower back injury and his psychiatric injury. Like Dr Kuc, Dr Gurtu did not distinguish between the plaintiff's lower back injury in giving that opinion.
100 The plaintiff was able to continue working until September 2004 when he stopped working all together because of the impact on him of both the lower back injury and the psychiatric injury.[50] He has not returned to any gainful employment since that time. The plaintiff said in both of his affidavits, and in his oral evidence, that he is significantly disabled by his lower back injury and is having significant problems with his mobility.[51]
[50] PCB 16
[51] PCB 41-42
101 Mr Kudelka, orthopaedic surgeon, examined the plaintiff for the defendants on 23 June 2009.[52] Mr Kudelka was of the opinion that the lifting incident was a contributing factor to the onset of the plaintiff’s lower back symptoms, however, he was of the opinion that the contribution of the lifting incident to the state of the plaintiff’s lower back was now insignificant.
[52] The plaintiff had previously been examined by Mr Love, orthopaedic surgeon (DCB 33-36) and Mr Russell, general and trauma surgeon (DCB 37-42). Both accepted that the plaintiff suffered a compensable lower back injury, and that the plaintiff was not fit for his pre-injury employment. Otherwise their opinions are of little value because they are so stale.
102 Mr Kudelka, however, was of the opinion that the plaintiff was fit for suitable employment which needed to be partly sedentary and which involved no bending, stooping or lifting and excess of 5 kilograms.[53]
[53] DCB 22-24
103 I accept the plaintiff’s evidence that he suffered injury as a consequence of the lifting incident. He required immediate medical treatment at the Royal Melbourne Hospital, and thereafter required treatment which was provided by Dr Kuc, by a physiotherapist, by Mr Wilde and now by Dr Gurtu.
104 I reject the opinion expressed by Mr Kudelka. He does not explain how it is that the lifting incident produced an injury in the plaintiff’s lower back, but its influence on the plaintiff's current condition is now insignificant, save that he was of the opinion that the continuation of the plaintiff’s symptoms may be contributed to by his psychiatric injury.[54]
[54] DCB 23
105 There is a strong body of evidence in favour of the conclusion that the injury suffered by the plaintiff as a result of lifting incident continues to be responsible for his disabling pain, and furthermore, that he is disabled to a significant degree, requiring active treatment. I refer to the opinions which I have already summarised of Dr Kuc, Mr Wilde and Dr Gurtu.
106 In this part of the plaintiff’s application the defendants limited their attack upon the plaintiff's case to whether the consequences meet the statutory test for pain and suffering.
107 The characteristics of the plaintiff's case which he says are consistent with satisfying the statutory test are his evidence that he continues to suffer disabling pain requiring active treatment; the fact that he is disabled in relation to undertaking his pre-injury work, and perhaps a range of other lighter work; his capacity to engage in social activities, and significant interference with his mobility.
108 It seems to me that the amalgam of the plaintiff’s evidence, and the evidence of the medical practitioners whose evidence I prefer, points to the plaintiff suffering consequences which I think deserve the description "at least very considerable". I have reached that conclusion after making a comparison of other cases in the range of possible impairments or losses of a body function which may fairly be described as being more than significant or marked and as being at least very considerable.
The Claim for Loss of Earning Capacity
109 At the time when the plaintiff ceased working with the first defendant in September 2004 he was on light duties, controlling traffic in and around the worksite. It would appear that he was able to cope with those duties.[55]
[55] Transcript 10
110 The plaintiff said that he would not be able to do that work now. He said that if he only had the lower back injury it would prevent him from doing that work, and if he only had the psychiatric injury, that would also prevent them doing that work.
111 It is clear from the plaintiff's evidence that he has not made any effort to return to work, and indeed, the plaintiff admitted that he has not looked for work, believing that he is unfit for any work.[56]
[56] Transcript 41
112 Subsection (38)(g) provides that the plaintiff does not establish a loss of earning capacity where he would have, after rehabilitation or retraining, a capacity for suitable employment which he could exercise which would result in the plaintiff earning more than 60 per cent of his gross income from personal exertion.
113 The onus in proving loss of earning capacity sits with the plaintiff. Although Mr Wilde is of the opinion that the plaintiff does not have a capacity for work, Mr Kudelka believes that he has. The opinions of Dr Kuc and Dr Gurtu are of no real assistance to the plaintiff because their opinions on the plaintiff's capacity for work are based upon the combined effect upon the plaintiff of the lower back injury and the psychiatric injury and their consequences.
114 In assessing whether the plaintiff satisfies the statutory test for loss of earning capacity, it is not permissible to combine the consequences of both injuries, but it is for the plaintiff to produce evidence to show that the injuries, when looked at individually, have consequences which meet the statutory test.
115 The expressions "rehabilitation" and "retraining" refer to steps which the plaintiff is required to undertake relevant to determining his capacity for suitable employment. Apart from medical treatment, the only step which the plaintiff has taken in terms of rehabilitation was a program undertaken by LifeCare in late 2004. The plaintiff abandoned the rehabilitation program. As a consequence, he was discharged from the program.[57]
[57] DCB 46
116 I posed the question to both Mr Collis and Mr Dyer of the consequences of a plaintiff not pursuing rehabilitation or retraining, and if that was the case, whether the plaintiff could succeed given the very certain terms of subsection (38)(g), that in the absence of taking those steps, the plaintiff does not establish a loss of earning capacity.
117 Mr Collis submitted that the plaintiff simply does not have a capacity for work so his failure to pursue rehabilitation and retraining are of no consequence. Mr Dyer submitted that if the plaintiff chose to put his case on an “all or nothing” basis, then his failure collides headlong into the barrier to proving loss of earning capacity created by subsection (38)(g).
118 It is trite to say that an application such as this is not a trial by the medical fraternity. The presence of medical opinion supportive of the plaintiff's case forms part of the whole of the evidence which must be weighed up and balanced against the statutory tests which ultimately call upon the trial judge to make a value judgment.
119 I found the plaintiff’s evidence to be very unsatisfactory regarding his failure to pursue rehabilitation and retraining and whether he has any capacity for work. It has placed me in a position where, in the absence of the plaintiff pursuing any rehabilitation or retraining, that I do not have evidence before me to say whether the rehabilitation and retraining would or would not have returned the plaintiff to a capacity for work which he could exercise.
120 The harshness of the legislation works against a plaintiff who fails to pursue rehabilitation and retraining. That is not to say that a worker who has an undoubted total incapacity for work must nonetheless undertake rehabilitation and retraining. That would be a nonsensical situation, and I am confident not intended to be the case.
121 The plaintiff was not prepared to countenance any work in which he might be qualified to undertake by experience and training. He was content to put his case on the basis that he is totally and permanently incapacitated by the consequences of his lower back injury and the consequences of his psychiatric injury.
122 In my opinion, that exposes him to the barrier to success created by subsection (38)(b). The conclusion I have reached is that I am not satisfied that the plaintiff is totally and permanently incapacitated. I am not satisfied that the pursuit of rehabilitation and retraining would be a futile exercise.
123 It is for these reasons that I reject the plaintiff’s claim for loss of earning capacity both with respect to the lower back injury and the psychiatric injury.
Conclusion
124 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant:
• with respect to lower back injury. • with respect to psychiatric injury. 125 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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