Vella v VWA [2019] VCC 328 (22 March 2019)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised

Not Restricted

Suitable for Publication

NAOMI JESSIE VELLA	Plaintiff

v

VICTORIAN WORKCOVER AUTHORITY	Defendant

JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18,19,20 March 2019
DATE OF JUDGMENT:	22 March 2019
CASE MAY BE CITED AS:	Vella v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 328

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person

For the Defendant	Mr R Middleton QC with Mr D Churilov	Russell Kennedy

1 In plain language this application is a serious injury application involving two parts. The first is a physical injury or impairment of the left shoulder and the second is a mental, behavioural or perhaps better described as a psychiatric condition. The plaintiff appeared in person and sought leave for both pain and suffering damages and pecuniary loss damages.

2 As she was representing herself court procedures and the requirements of what had to be proved by an injured worker to be successful in a “serious injury” application were explained in as plain a language as could be used. I allowed her mother to sit with her at the bar table and participate in any way that would help. I will also attempt to put this judgment in non-legal, straightforward terms.

3 The application concerns an accident suffered on a date that has been variously described but was in early 2010 when Ms Vella worked for Jenny Smith Gardens. She said she fell landing on her left side.[1] It seems she worked for Jenny Smith from February 2010 until August 2010. It was not entirely clear when she took up another gardening job with Malvtrak Gardens, but that seems to have been in February 2011 and she last worked for them on 4 May 2012.

4 I accept that Ms Vella suffered an injury to her left shoulder as well as some mental health conditions as a result of that fall and what has happened to her. However that is not the question before the court. The legal test of “serious injury” has to be proved by a worker. I have to determine now, some nine years later, whether she has proved that she suffered what is referred to in the law as a permanent injury that meets this legal test of “serious injury”. That legal test needs to be explained.

5 Trying to confine the issues and put them into lay language was a challenge. I did this on a number of occasions.[2] While it was not necessary for the plaintiff to understand all the technical legal terms, it was pointed out how the physical left shoulder injury comes under paragraph (a) of the relevant section of the Accident Compensation Act 1985 while the mental or psychiatric condition is under paragraph (c).

6 The law says that both have to be assessed now, in March 2019, rather than at the time of injury when she was twenty two years old. Permanence has to be proved which means “for the foreseeable future” in ordinary language. With respect to pain and suffering damages, for the physical left shoulder to be considered a “serious injury”, it has to be proved to be causing consequences from the impairment of the shoulder that could be fairly judged as being at least very considerable in terms of loss of enjoyment of life. To be considered a “serious injury” in terms of loss of earning capacity, it has to be proved that it caused a permanent loss of earning capacity of 40% or more. In the case of the mental or psychiatric condition, the test of serious injury is a higher legal test than a physical injury and it has to be “severe”. “Severe” means more than “serious” so the mental or psychiatric injury has to be proved as being “severe”.

7 Doing my best to explain what was really contested, the defendant admitted the plaintiff had suffered a compensable injury to her left shoulder but did not concede that there was any impairment still suffered now that was caused by the work accident. In other words, the paragraph (a) physical injury to the left shoulder was not a “serious injury” when judged at the present time. As to the paragraph (c) mental or psychiatric condition, the defendant contested that any such condition was caused by employment and if it was, then it did not satisfy the test of “severe”. Issues of credit were also said to be relevant. In plain terms “credit” means the credibility, accuracy and reliability of evidence and really whether evidence should be accepted.

8 It was informative in this case to both observe and also to hear Ms Vella give evidence over two days. Allowance has to be made for the fact that she was unrepresented and understandably nervous. Allowance also has to be made for the fact that she was a very angry, frustrated and at times a quarrelsome witness. Allowance was also made for memory difficulties. On a number of occasions she was allowed to leave the witness box in order to settle her agitated state down and to gather her thoughts. Nevertheless ample opportunity was afforded in order to gauge both the accuracy and the reliability of her evidence.

9 Ms Vella was cross-examined about a number of inconsistencies. These included what she had recorded in two WorkCover claim forms in which there appeared different dates, different circumstances of the accident, different locations of the accident as well as differences in the injuries suffered.[3] “Broken shattered shoulder bones” were even described in one claim form to the insurer and why such a markedly inaccurate description was signed off on by Ms Vella was not satisfactorily explained. She even described in the forms that a workmate witness, “Lisa”, had been present but in the course of her evidence it was a man, “Rana”, who perhaps had been present.

10 It was unsatisfactory evidence on her part to seek to explain away the discrepancies in her claim forms by saying they were filled out by her “carer”, a Ms Sue May. At one stage she said Sue May had been her carer long before starting employment with Jenny Smith Gardens but at another stage said it was really from 2013.[4] Then on the second day of the hearing it seemed this carer had been in that role looking after Ms Vella since 2005.[5] What the true situation was in terms of dates and the reason such a young plaintiff needed a carer never became clear. But the role of Sue May in terms of the claim forms seemed to be a vain attempt by the plaintiff to explain away some very puzzling inconsistencies Ms Vella must have provided and signed as “true and correct”.[6]

11 Even the claimed accident, on whatever date she relied on, which is central to this application was not consistently described by Ms Vella. Two WorkCover claim forms describe a trauma that involved a fall from a ladder.[7] Then her affidavit described a fall from a fence.[8] Yet back in 2014 she was recorded by Dr P Kornan, in a very detailed report, as saying the shoulder injury was a progressive condition that “had not occurred in any specific event or accident”.[9]

12 Other topics where she was hard to follow on rather straightforward matters included the time she was off work following her injury, who she had first seen for treatment and the medications she was on both before and after the accident. Some of these were peripheral issues which people very often get wrong in these applications, but this was a witness who was generally not accurate to the point where reliability was put in question.

13 When challenged on the first day about the lack of shoulder pathology shown on the various radiological investigations, she offered the explanation that she had more x-rays at home.[10] I asked her to bring those to court for the second hearing day.[11] On day two she did not produce any. She explained this by saying a former partner of hers was responsible for these and a lot of her other possessions being lost.[12] This evidence about other radiology was not persuasive in the face of clear radiology showing normal shoulder appearances.

14 Of major concern in relation to credit was her evidence about health matters prior to the Jenny Smith Gardens job. She denied any problems with wrists, knees and hips prior to Jenny Smith. Her clinical records show this was wrong. Earlier consultations in clinical records demonstrate these were pre-existing problems but the plaintiff maintained there was nothing physical prior to Jenny Smith.[13] Her credit was damaged by her vehement denials .

15 Perhaps even more to the point was her denial of any mental health problems before the accident. Again her clinical records clearly need little elaboration.[14] On 1 December 2005 when only 17 years of age, her general practitioner reported how she was severely depressed. There was talk of suicide often. Mood and anger problems were noted as were issues of loss of appetite and weight. Counselling took place and she was prescribed Lexapro. This note was amongst the records of a clinic at Werribee Plaza.

16 When she was still only nineteen in October 2008, Dr C Lisner at a practice in Hoppers Crossing, recorded similar problems. He said “She has had a long history of depression and recently suicidal thoughts” and a little further he said “She has become more depressed recently” and she “urgently needs ongoing counselling with the goal of better understanding of her condition and control of her anger and swings”.[15] This was only a few months before she commenced her job with Jenny Smith Gardens.

17 Two points need to be made about this evidence. Firstly it goes directly to credit as on more than one occasion Ms Vella denied emphatically that she had any mental health problems prior to working for Jenny Smith Gardens. This was evasive, inaccurate and leads me to consider her evidence substantially unreliable. Secondly not one of the doctors, whether treaters or medico-legal people, have been given histories that point clearly to major mental health issues including suicidal ideation in her past and before starting with Jenny Smith Gardens in February 2010.

18 Accordingly I cannot accept any medical evidence in relation to her mental or psychiatric condition as the doctors have not been fully informed about significant past history. In fact the only report from a treater the plaintiff tendered on the mental health part of the claim was from a psychologist, Ms Pamela Newman, in 2016. What the overall evidence points to is really an aggravation case with respect to any mental health problems. I need to conduct a before and after exercise in relation to assessing such an aggravation case. The evidence just does not permit such an exercise to be carried out properly and fully. Less there is any doubt I am not satisfied the plaintiff has proved any aggravation of any mental or psychiatric condition caused by the Jenny Smith Garden job, which of itself, could be said to be permanent and severe.

19 DVD video film as recent as 19 February 2019 was tendered.[16] To assist Ms Vella it was played in full twice. It lasted for over thirty minutes and showed her walking two dogs with a lead on each hand. She walked at times very briskly and ran at times but this was not really relevant. It was far more to the point that the dogs pulled on each arm in different directions and at times vigorously. There was no sign of any left shoulder dysfunction or discomfort and I found the film inconsistent with what the plaintiff has said in her affidavits, in court and to various doctors about the extent of her left shoulder impairment.

20 The DVD damaged her credit and made her evidence unreliable about the extent of her left shoulder condition. The plaintiff also tendered two DVD’s the defendant had taken. I allowed her to view them in court in private so she could decide if she wished to rely on them.[17] They did not show anything relevant and simply showed her sitting and walking for a few minutes back in 2015.

21 Of less relevance but on the same point, some Facebook pages were shown that indicated her involvement in fishing. These extracts were taken in 2014 and 2015 and do not take the matter very far. However they are inconsistent with the thrust of her affidavit evidence about difficulty with that recreation.[18] Her evidence that she did not catch the gummy shark she is holding in one photo but only caught the flathead fish was improbable. [19]

22 When challenged about alternative job suggestions put to her as set out in vocational assessment reports by Recovre and Converge, her evidence was not reliable and consistent. She said a “back” injury was why she could not do the suggested sales assistant job.[20] This case concerns a left shoulder physical claim and psychiatric injury and just what this “back” problem was or is, really just amounts to impermissible guesswork.

23 This leads to the need to comment even on how this case was put to the court. While neck and back were mentioned in the initial WorkCover claim forms this serious injury application has been clearly presented primarily on the basis of a left shoulder injury with some anxiety and depression or other mental health issues as very much a secondary complaint. The formal Particulars of Injury so describe it.[21] The plaintiff’s first affidavit so describes it.[22] The plaintiff’s comprehensive Further Supplementary Affidavit so describes it.[23]

24 However in the witness box the plaintiff repeatedly referred to her “back” as being a relevant injury as well as her “neck”. She said more than once that this application and why she could not work were due to “neck, shoulder and back” injuries which she had suffered at Jenny Smith’s.[24] Disentanglement was explained to the plaintiff in plain language as meaning she had to prove the left shoulder, looked at on its own, was a “serious injury”. The evidence just did not prove that. The physical injury had to be looked at on its own and assessed on its own. The same goes for the psychiatric injury.

25 In the end what I made of the reliability of the plaintiff’s evidence was central to this case. I found her unreliable, prone to exaggerating her symptoms, inconsistent and inaccurate. This led to not accepting that she has proved any “serious injury”, physical or psychiatric, caused by her work with Jenny Smith when judged now in March 2019, some nine years after the accident. It also led me to not accept medical evidence as it was not reliably based in terms of history, presentation and genuine complaints.

26 It is helpful and relevant to look at the treatment or lack of it in the two years up to May 2012 when she ceased employment with her later employer Malvtrak. The dates given for the subject injury with Jenny Smith Gardens have ranged from 30 April 2010 to 21 February 2010 and now 29 April2010.[25] But just taking the last date suggested, being 29 April 2010 and the period of about two years following that, there is little treatment. She saw an osteopath twice, a general practitioner five times, a physiotherapist three times, had two scripts for medication and apart from the radiology already referred to, that was the extent of the left shoulder treatment.

27 Thus her lack of treatment back then and in recent years tends to show a situation that does not point to any ongoing, very considerable consequences. There is no current medication for her shoulder. Physiotherapy has ceased. When asked about this she gave a very unpersuasive explanation. It was that she owed $70,000 to the physiotherapist who said “they are not allowed to touch me anymore in case I end up a paraplegic”.[26]

28 Apart from very occasionally seeing Dr P Burke at the Wyndham Health Care clinic, there is no current treatment. But when his records are looked at the visits are minimal. He last saw her on 3 September 2018 when really nothing much was recorded except “Nil current meds”. [27] He has seen her once since. That was on 6 January 2019 and the only note reads “Reason for visit - Nil significant”.[28] So again nothing relevant to any serious medical problem appears. No ongoing serious shoulder or other condition is supported by evidence of current medical attention being pursued.

29 Accordingly in view of what I have said about her evidence, I will only turn briefly to the medical materials as they are founded by and large on an acceptance by the practitioner of what she said. Also the injury occurred now some nine years ago, so a great number of the medical reports are so out of date that they do not assist much in making an assessment of “serious injury” now. I will focus on the more recent opinions.

30 While it is by no means finally determinative of a physical impairment application, it is relevant to look at the radiology. There has been a series of radiological investigations involving plain x-ray, CT and MRI scanning over about two years and no abnormality has been detected. These have been an x-ray on 20 December 2011, ultrasound on 15 February 2012, MRI on 24 May 2012, another x-ray on 24 May 2012 and a CT scan on 21 June 2012.[29]

31 I will deal with the doctors in the order that they treated the plaintiff. Starting with Dr Paul Burke the general practitioner at the Wyndham Health Care Centre. He first saw the plaintiff in September 2010 in relation to her left shoulder condition. I will refer to his most recent report which was nevertheless as far back as 2016. He said she had been referred to Dr Steven De Graaff, had chiropractic treatment and had seen orthopaedic surgeons including Mr Pirpiris but she had continued to suffer from ongoing shoulder pain. He also noted the development of depression and anxiety. He did not seem to have any history of the pre-existing mental health problems which I have referred to.[30]

32 Dr Burke supported her ongoing shoulder injury as being a chronic condition and he thought she had no capacity for her pre-injury duties nor any employment and this was a permanent condition.[31] At least three matters are relevant to why I do not accept his own opinions entirely. Firstly while it could be said that his opinion that the injury had stabilised could assist when dealing with an assessment now in March 2009, his views are nevertheless very much out of date. Secondly he has not obtained a full and adequate history in relation to the pre-existing physical injuries that have also been the subject of comment already. Thirdly he has not in any way disentangled the shoulder problem from the back, neck and overall complaints that the plaintiff has said cause her present incapacity for work as a result of the Jenny Smith Gardens job.

33 Dr Burke sent her to the orthopaedic surgeon, Marinis Pirpiris. The surgeon provided only one report back in 2012. Apart from his suggestion of an x-ray and an MRI of the shoulder, that report which is seven years old does not assist.[32]

34 Dr Burke had also referred her for physiotherapy to Darren Rose in January 2012. She saw him on a number of occasions. His is another very old report being in 2012. He accepted that she had a left shoulder injury as a result of what he said was a workplace incident on 21 February 2010. She would benefit from an MRI which would give a more definitive diagnosis. He thought she would benefit from further physiotherapy and ended “I believe with treatment, that Ms Vella should be capable of returning to her pre-injury duties.”[33]

35 That MRI did take place in May 2012 but there was no pathology of significance recorded. The very dated comments of the physiotherapist do not take the matter any further. It goes without saying that the little details that were given are not consistent with the plaintiff running up a $70,000 bill for physiotherapy.

36 Dr S De Graaff saw the plaintiff and again this was at a referral of Dr Burke in 2012. Dr De Graaff was at the Epworth Rehabilitation organisation and he has provided 10 medical reports. Some are very out of date as they commenced in 2012 and even the most recent is not current as it was written in February 2017. I will focus on the more up-to-date of those materials. It seems he last reviewed her in September 2016 when he thought that there had been no significant change in her overall function which I take to mean as her ongoing left shoulder problem which had become chronic.[34]

37 This doctor provided supporting opinion about a significant muscular/tendon type injury to left shoulder and said she had gone on to develop a chronic pain syndrome with only had a guarded prognosis. He did say however that she would benefit from a multidisciplinary pain management program which “will allow her to function at least at a better level on a day-to-day basis at home and possibly get her to a level where she may well be able to work in extremely modified duties where she previously worked”.[35]

38 Not having seen her since 2016 there are a number of reasons why not much weight can be given to his views now in March 2009. Firstly he seems to have accepted unequivocally all her complaints. Secondly he does not have any history of other pre-existing physical or mental health issues that could be described in any way as comprehensive. Thirdly while he does speak about her trunk being involved there is no disentanglement of any spinal problems from the left shoulder impairment that is the subject of this claim. Fourthly she has described to this court that it is her “back” that prevents her working for example in sales. Dr De Graaff just does not have this sort of complaint from the patient and so there is no comment in that regard. Fifthly and perhaps most important of all, his opinions are based on basically lumping her physical and mental health problems all together and reaching his conclusions. The law does not allow this as each injury has to be judged by the court on its own.

39 In the end I accept that when Dr De Graaff last saw her she did suffer some ongoing shoulder symptomology that restricted her to a certain extent but I have to assess the situation now. I am not prepared without hearing from him, to accept that his opinions support a finding now of permanent “serious injury” in the left shoulder, separate from other physical and mental health issues.

40 An osteopath, Dr S Chariomatsidis, provided a brief hand written report back in 2014 but he last saw her it seems in April 2010 for spinal and shoulder pain and this does not assist.[36]

41 Mr R Miller, orthopaedic surgeon, also saw her at the referral of Dr Burke and that was back in December 2012. His only report is very old and was written in January 2013. His opinions do not help in an assessment now. Even back in 2012 he recognised the difficulties in giving an opinion in relation to Ms Vella.[37] He acknowledged that she had probable ongoing left shoulder symptoms impacting on her body but he used language that was somewhat equivocal. He quite candidly made this statement “I have tried to disentangle this in this assessment and acknowledge the difficulties in doing so”.[38]

42 Mr Miller suffered also from the handicap of having no history about pre-existing physical problems with hips, knees and wrists, just to mention a few, as well as the mental health issues in the years leading up to her employment with Jenny Smith. I do not accept Mr Miller’s out of date opinions, based on his one consultation, take this serious injury application any further.

43 Pamela Newman is a psychologist who the plaintiff was referred to by Dr Burke in May 2016. Her only report was in 2016. She diagnosed chronic adjustment disorder as a result of work.[39] The “Personal History” set out in her report did not disclose the very significant mental health issues involving suicidal thoughts prior to that work.[40] Her opinion about mental health is flawed. Also her final comment left the question of improvement somewhat open as “she will need ongoing long-term psychological counselling, medical treatment, occupational therapy and extensive retraining if she is to find any work or even positive functioning into the future.”[41]

44 Her report is a combination of the physical and mental which does not assist in a serious injury application such as this. The report is well out of date. It also seems to leave open the prospect of improvement and even a return to some alternative work but without hearing from her I cannot comment further.

45 The only remotely up to date materials of a medical nature comprised three pages from the records of Western Health.[42] These were given to the court by the plaintiff on the second day of this hearing.[43] I added them to the Court Book. They related to her attendance at the Emergency Department of the Sunshine Hospital on 17 June 2018. This followed events that were diagnosed as “SUICIDE/ATTEMPT/IDEATION” and then set out a number of “Multiple social stressors”.[44]

46 I will not repeat the very personal and troubling social, relationship and anger issues that are recorded in the Western Health documents Ms Vella gave to me. They upset Ms Vella in court and there is no need for me to elaborate. They speak for themselves. It just needs to be said that there was nothing listed there among the stressors that even mentioned any work injury with Jenny Smith. It is noteworthy the hospital recorded “Physical examination unremarkable”.[45]

47 The material tendered by the plaintiff concluded with a medico-legal psychiatric report from Dr P Kornan back in 2014. Clearly then it is very dated. Also the history he took did not include any pre-existing problems, let alone deal with matters as serious as suicidal issues in a patient in her teenage years, which the clinical notes reveal. This old report does not assist.

48 The defendant tendered a lot of reports that are also out of date and I will not deal with every one of them. By way of overall comment, none of the defendant’s medical reports prove a serious physical or mental health injury when assessed at the present time, although some concede that she did suffer injury back in the early years following the fall.

49 The first practitioner was Mr C Jones, orthopaedic surgeon. Even by 2012 he did not think employment with Jenny Smith was still contributing to what he described as “a fairly minor left shoulder injury.”[46] An old Medical Panel Opinion described an “unresolved soft tissue injury” in the left shoulder with some adjustment disorder.[47] Further treatment was recommended but of course the Panel never saw her again. Consequently this Opinion back in 2014 does not go very far in March 2019.

50 Mr M Polke, orthopaedic surgeon, saw Ms Vella only once and that was back in 2015. He thought then she had an incapacity for work but due to physical injuries as well as “a large psychological component affecting recovery and return to work (this is outside my field of experience)”.[48] He went on to say that she was fit to participate in Occupation Rehabilitation from a physical point of view as well as attending a multidisciplinary program focusing on pain management and improving functional capacity. So not having seen her again it is no more than guesswork, which is not permitted, about what he would say about the injury now in March 2019.

51 The 2015 report of Dr T Entwisle , psychiatrist, was the next one tendered by the defendant. He saw her for mental health issues. His views were qualified in that he felt she should be reviewed in six months. He said “once Ms Vella’s symptoms have settled further with treatment”, so in the end his opinion needed updating.[49] He never saw her again so I am not helped by his report now.

52 Dr G Curtis, orthopaedic surgeon, reported on the left shoulder claim five times but the last time he saw Ms Vella was August 2017. Put briefly, he found no ongoing shoulder symptoms from the soft tissue injury suffered in the fall back in 2010. He considered she had a work capacity. It only remains to say he gave no support to the plaintiff for any finding of “serious injury” now.

53 Associate Professor P Doherty, psychiatrist, saw her for the mental health claim and in effect stated that any psychiatric or mental health issues were no longer work related. From a psychiatric viewpoint he thought she could return to her pre-injury duties or other suitable employment and on a full time basis.[50] He was asked to consider the Medical Panel’s Opinion but he said she had improved since that time and he was not persuaded there was any ongoing, work related mental health condition.[51] His opinion did not support the plaintiff.

54 A general surgeon, Mr B Reid, saw Ms Vella over two years ago in January 2017 for the left shoulder complaint. He did find any physical pathologic condition causing her incapacity. If there was anything, it was psychologically based. His view was she had a capacity for both pre-injury and other suitable duties on a full time basis.[52] This report did not advance Ms Vella’s case for the shoulder.

55 The psychiatrist, Dr A Jager, saw her regarding her mental health condition in August 2017. He did not consider there were any psychiatric problems still caused by the Jenny Smith Gardens incident. He pointed to other things in her past that were relevant to her psychiatric condition and he considered she was able to work from a mental health perspective.[53] He also considered she had improved since the Medical Panel Opinion back in 2014.[54]

56 For the reasons set out above the plaintiff has not proved she suffered a “serious injury”, either physical or psychiatric, caused by the incident with Jenny Smith Gardens when assessed now some nine years later.

County Court of Victoria

Vella v VWA [2019] VCC 328 (22 March 2019)