KULUK, Tarkan v VICTORAIN WORKCOVER AUTHORITY [2021] VCC 1262

4 The plaintiff commenced this serious injury application by swearing an affidavit dated 6 April 2018.[1] That affidavit broadly details symptoms and consequences from the claimed back and left leg injury, as well as a general description of his mood as "awful".[2] The affidavit also describes him "having trouble holding my toilet" and that he believed "this is related to my injuries as it is a recent problem I have".[3]

5 Prior to the hearing of this proceeding, upon referral from a Judge of this Court, a Medical Panel was asked to answer medical questions regarding the plaintiff.

6 Pursuant to a Certificate of Opinion dated 14 December 2019,[4] a Medical Panel answered such questions.

7 It is convenient at this stage to set out in full the Certificate of Opinion of the Panel.

CONSTITUTED PURSUANT TO THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013

The Medical Panel formed its Opinion in response to a Referral from Judge Misso lodged on 25 July 2019 pursuant to Victorian Workers Compensation Legislation.

Dr Susanne Homolka, Occupational and Environmental Physician

|, Dr Susanne Homolka as Presiding Member of this Panel, have discussed the answers herein with the other Panel Members and this is the opinion of the Panel on the medical questions set out below.

What is the nature of the medical condition of the Plaintiff's:

(a) In the Panel's opinion the Plaintiff had suffered an aggravation of degenerative changes in the lumbar spine the effects of which have resolved such that he is currently not suffering from any intrinsic medical condition of the lumbar spine.

(b) In the Panel's opinion the Plaintiff is currently suffering from chronic wasting of the left lower limb, but this condition is not attributable to any claimed injury.

(c) In the Panel's opinion the Plaintiff is currently suffering from a mild Adjustment Disorder with Depressed and Anxious Mood.

(a) Does any medical condition of the lumbar spine identified by the Medical Panel in answer to Question 1(a) result in or materially contribute to any medical condition of the Plaintiff's left lower limb as assessed by the Medical Panel?

(b) Does any medical condition of the Plaintiff's:

as identified by the Medical Panel in answer to Question 1(a) or (b) continue to result from or be materially contributed to

by injury suffered in employment with the employer?

(c) Does any medical condition of the Plaintiff's:

as identified by the Medical Panel in answer to Question 1(a)

or (b) result in or materially contribute to any medical condition of the Plaintiffs mind as assessed by the Medical Panel?

(a) The Panel is of the opinion that the Plaintiff's current medical condition of chronic wasting of the left lower limb does not result from and is not materially contributed to by the now-resolved aggravation of degenerative changes in the lumbar spine.

(b)(i) The Panel is of the opinion that the Plaintiffs medical condition of now-resolved aggravation of degenerative changes in the lumbar spine resulted, but no longer results from and was but no longer is materially contributed to by injury suffered in employment with the Defendant.

(b) (ii) The Panel is of the opinion that the Plaintiffs current medical condition of chronic wasting of the left lower limb does not result from and is not materially contributed to by any claimed injury suffered in employment with the Defendant.

(c)(i) The Panel is of the opinion that the Plaintiff's current psychiatric medical condition of mild Adjustment Disorder with Depressed and Anxious Mood results from and is materially contributed to by the now-resolved aggravation of degenerative changes in the lumbar spine.

(c)(ii) The Panel is of the opinion that the Plaintiff's current psychiatric medical condition of mild Adjustment Disorder with depressed and Anxious Mood does not result from and is not materially contributed to by his current medical condition of chronic wasting of the left lower limb.

as identified by the Medical Panel "permanent" meaning likely to last for, during or through the foreseeable future?"

(c) The Panel is of the opinion that the Plaintiff's current psychiatric medical condition of mild Adjustment Disorder with Depressed and Anxious Mood is permanent.

Does the Plaintiff's lumbar spine condition (excluding the Psychological or psychiatric consequences of that condition) result in or materially contribute to him having:

(a) a "current work capacity" within the meaning of the Accident Compensation Act 1985 ("the Act") or

(b) "no current work capacity" within the meaning of the Act?

(a) and (b) The Panel is of the opinion that the Plaintiff has no present inability arising from an injury to the lumbar spine such that he is unable to perform the full duties and hours of work of is pre-injury employment with the Defendant.

If "yes" to question 4(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?

If "yes' to question 4(a), would employment as a:

constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?

If "yes" to question 4(b), is this "permanent" meaning "likely to last for, during or through the foreseeable future?"

Does the Plaintiff's psychiatric condition result in or materially contribute to him having:

(a) a "current work capacity" within the meaning of the Act;

(b) "no current work capacity" within the meaning of the

(a) and (b) The Panel is of the opinion that the Plaintiff has no present inability arising from any psychiatric/psychological injury such that he is unable to perform the full duties and hours of work of his pre-injury employment with the Defendant.

If "yes" to question 8(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?

If "yes" to question 8(a), would employment as a:

constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?

If "yes" to question 8(b), is this "permanent" meaning "likely to last for, during or through the foreseeable future?"

Does the Plaintiff's left lower limb condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:

(a)a "current work capacity" within the meaning of the Accident Compensation Act 1985 ("the Act") or

(b) "no current work capacity" within the meaning of the Act?

(a) and (b) The Panel is of the opinion that the Plaintiff has no present inability arising from any claimed injury to the left lower limb such that he is unable to perform the full duties and hours of work of is pre-injury employment with the Defendant.

If "yes" to question 12(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?

If "yes" to question 12(a), would employment as a:

constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?

If "yes" to question 12(b), is this "permanent" meaning "likely to last for, during or through the foreseeable future?"

8 As is apparent, the Panel as at 14 December 2019 concluded that the plaintiff no longer suffered an intrinsic medical condition of the lumbar spine and that the claimed left lower limb injury was not attributable to any claimed injury.

9 Before the evidence commenced, submissions were made as to the legal consequences of the Panel's Opinion as given in this proceeding. Both the plaintiff and the defendant agree that the Panel Opinion is to be adopted and applied by the Court and must be accepted as final and conclusive by the Court. The parties accept that by reason of the Panel opinion, the plaintiff cannot rely on any physical injury to the lumbar spine (and any claimed consequences from the lumbar spine) or any injury to the left leg (or claimed consequences from injury to the left leg). By reason of the Panel Opinion the plaintiff can rely on the psychiatric injury as identified by the Panel, namely a mild Adjustment Disorder with Depressed and Anxious Mood that was permanent.

10 The plaintiff, via his counsel Mr Richards QC and Mr Horner, sought leave to amend the particulars of injury and rely upon a claimed physical injury described as "sacral nerve pathology causing an impairment of the bladder, lower bowel and erectile functions". The plaintiff submitted that the Panel had only answered a question about the lumbar spine and not the sacral spine or sacral nerves and so there was no question and answer to be applied regarding the sacral spine or sacral nerve. If the amendment was allowed then the plaintiff sought an adjournment to obtain medical opinion directed towards the issue as to whether the plaintiff's employment had been a cause of injury to the sacral nerve and was a cause of the plaintiff's claimed neurological dysfunction.

11 On 1 September 2021, the Court ruled that the amendment would not be allowed and an adjournment would not be allowed for the reasons then given.

12 Accordingly, when the matter proceeded, the plaintiff's claim - by reason of the application of the Panel Opinion - was confined to a claim for psychiatric injury only. The plaintiff submitted that he had a psychiatric injury which met the legal test of "serious" namely a "permanent severe mental or permanent severe behavioural disturbance or disorder". He sought the leave of the Court to commence a proceeding for both pain and suffering and pecuniary loss damages.

13 The defendant, via its counsel, Mr Churilov, submitted that the Medical Panel Opinion had determined issues to do with the diagnosis of the plaintiff's psychiatric condition. Further, it was submitted that whether the plaintiff was entitled to commence a proceeding for pecuniary loss damages had been conclusively determined against the plaintiff by the Opinion of the Medical Panel, namely that there was no incapacity for pre‑injury employment.[5] Further, the defendant submitted that any pain and suffering consequences simply did not meet the test of serious.

14 The proceeding was conducted on the basis of the tender of relevant affidavits and other documents, including the Panel Opinion and Reasons for Opinion. The plaintiff was not required for cross examination.

15 It is agreed that the Panel Opinion is binding. Having said that, the plaintiff submitted that there had been a deterioration in his psychiatric condition since the Panel gave its opinion. He submitted that the Court could take into account that deterioration and that his psychiatric condition was now "serious", in the sense of "severe".

16 The plaintiff accepts that the Panel Opinion is binding for a conclusion that as at 14 December 2019 he had a psychiatric condition described as a "mild Adjustment Disorder with Depressed and Anxious Mood" and that he then had "no present inability arising from any psychiatric/psychological injury such that he is unable to perform the full duties and hours of work of his pre‑injury employment".[6]

17 Pausing there, the Panel Opinion is such that as at 14 December 2019, the plaintiff could not demonstrate the requisite pecuniary loss and would not be entitled to leave to commence a proceeding for pecuniary loss damages. As noted already, his counsel accepted that to be the case. Further, based on the Panel Opinion as informed by the Reasons for Opinion,[7] that Opinion also tends to the conclusion that the plaintiff's pain and suffering symptoms would not at that stage meet the test of "serious" and although that was not expressly conceded by the plaintiff, the way the argument proceeded is such that the plaintiff did not really suggest otherwise.

18 Accordingly, if the Medical Panel Opinion is adopted as binding and conclusive as at 14 December 2019, then this proceeding would be dismissed.

19 Two issues then arise. The first issue is whether the plaintiff is entitled to rely upon a change in circumstance since the Panel provided its Opinion, to allow him to argue that his condition is now "severe". The second issue is, assuming he can argue a change in circumstance, is whether the objective evidence demonstrates a change in "severity" since the Panel provided its Opinion.

20 There is no binding legal authority as to whether the plaintiff may rely on a subsequent deterioration in the identified compensable injury in circumstances where the Court must "adopt and apply" the Panel Opinion as "final and conclusive". The parties did, however, refer me to two decisions of his Honour Judge Wischusen, firstly in Said v Smart Group Management Pty Ltd (ACN 159 333 061) [2021] VCC (4 June 2021) and secondly in Durrant v 101 Warehousing Pty Ltd [2021] VCC 834 (25 June 2021).

21 I concur with what his Honour Judge Wischusen said in Said at paragraphs 9-18 inclusive. I agree that there is no ability to reconsider an issue foreclosed by a Panel's Opinion. In the present case, it is not open for the plaintiff to claim some other psychiatric diagnosis inconsistent with what the Panel concluded was the appropriate diagnosis when it expressed its opinion. That means that the plaintiff cannot argue that he has any other condition save for as expressed by the Panel to be a "mild Adjustment Disorder with Depressed and Anxious Mood".[8]

22 However, consistent with what was said in Said,[9] I agree that events occurring since the Panel gave its Opinion, or changes in the plaintiff's symptoms since the Panel gave its Opinion, can be taken into account where they bear upon the assessment of the "severity" of the condition found by the Panel to be compensable - namely the "mild Adjustment Disorder with Depressed and Anxious mood."

23 Bearing in mind that the Panel found the plaintiff's psychiatric condition did not prevent him from undertaking his pre‑injury duties with the employer, the onus is then on the plaintiff to adduce evidence to prove that the "severity" of the compensable injury has increased to such an extent that it can now be said to be "serious".

24 This need only be a short discussion. There is simply a lack of objective evidence of any deterioration since the Panel Opinion. There is certainly a lack of any evidence of deterioration such that the "severity" of the compensable injury could now be said to be "severe".

25 The plaintiff says that that there is evidence contained in his most recent affidavit sworn 15 July 2021.[10] That affidavit deals extensively with the plaintiff's bladder, bowel and erection issues, which evidence is inadmissible as evidence of the "severity" of the claimed compensable injury because of the Panel Opinion. The only evidence in that affidavit that could said to be relevant to a deterioration in the claimed compensable injury is as follows -

4. Since my last affidavit, things have worsened for me psychologically. I continue to be very depressed, sad and upset. I also continue to suffer from bladder, bowel and erection problems.

23. Sometimes at night, I cry myself to sleep because of the depression that I am suffering. I cry at night. Not every night but when it really gets to me. I struggle with sleeping. These issues are stuck in my mind, 24 hours a day. That is why I have the suicidal thoughts. I want to see what they can do to try and help this situation but I am not sure there is anything that can help.

24. My memory is not great. I forget a lot of things. It could be anything. Someone said, what did you do yesterday. I mainly stay in my room. I sit in my room and I have a tv in my room and I keep to myself. I prefer to stay in my room and stay by myself.'

25. I have told one of my friends what I am going through. He will call me to check on me. I am too scared to tell him everything - that I can't have sex. I tell him that I have issues and am too scared to say how I feel. I feel like a ticking time bomb.

26. I lose my temper and my cool. If anyone talks stupid, I will give it back to them. One of my mates parked his car in my house and he kept it here for a week and my mum needed a car. I ended up yelling at my friend because I said | have enough on my plate. I don't like to mingle with many people so I just stick to what I know.

27. I also lose my temper with my parents at time. I don't want to tell them what is really happening in my life as I don't want them to worry. I feel sad and alone a lot of the time.

28. I stay a lot at home and have lost friends over the years. No-one wants to hang out with someone who can never go out anymore. I also have to be careful with drinking and this is something that my friends like to do.

29. My relationship with my daughter is also affected. Obviously I can't tell her about my problems and I don't want her to worry about me. I feel she would be happier if I had a partner but I know that this is unrealistic with how I am feeling at the moment. I can't see myself ever having another partner which upsets me.

30. I do not know what the future holds in store for me. I want to be able to improve my situation but I do not know how I can do that. I worry about my future and this stresses me out and I have been told that I have to learn to live with things as they are."[11]

26 The most recent affidavit commences with the broad comment from the plaintiff that things have worsened for him psychologically. A similar statement was made by him in his second affidavit[12] when he said, "I feel that my mental issues are getting worse again." But, any deterioration must be related to the compensable injury as identified by the Panel.

27 In his most recent affidavit, there is no clear evidence of the psychiatric consequences as set out at paragraphs 23 to 30 being directly linked to the compensable injury, as opposed to unrelated health conditions that cannot be relied upon by reason of the Panel Opinion. To illustrate the point, paragraph 25 refers to consequences from sexual dysfunction. Paragraph 26 refers to the plaintiff losing his temper but does not say why. Paragraph 27 refers to him feeling sad but again does not expand upon that. Paragraph 28 refers to him staying at home and having to be careful with drinking which suggests it might be due to his urological condition. Paragraph 29 talks about difficulties with his daughter because he cannot tell her about his "problems". Finally, paragraph 30 talks about him being worried about the future. It could be said that those paragraphs are somehow referable to the claimed compensable injury, but equally it could be said those paragraphs relate to consequences from the myriad of health problems which do not form part of this application. The plaintiff's own evidence is far from compelling for a conclusion that there has been such a dramatic deterioration in the compensable injury since the Panel Opinion such that his condition is now severe.

28 The other relevant evidence relied upon by the plaintiff is the Opinion of Dr Leon Turnbull, consultant psychiatrist. He examined the plaintiff by video link on 16 June 2021 and provided a report dated 21 June 2021.[13] Dr Turnbull was provided with some relevant material including the first two affidavits of the plaintiff, a report from Dr Aejaz Sheriff dated 4 April 2019, a report of Dr Symon McCallum dated 20 April 2019 and a report of Dr Hazem Akil dated 20 May 2019.[14] He was not provided with the Opinion or Reasons for Opinion of the Medical Panel, or any of the other relevant psychiatric opinions that predated the Panel Opinion.

29 In any event, Dr Turnbull opined that the plaintiff had "depressive disorder due to another medical condition. That is, his depressive condition is driven by his physical state."[15]

30 Pausing there, to the extent that Dr Turnbull's diagnosis is in conflict with the Panel Opinion, then his diagnosis cannot be relied on. But at the end of the day, the language used by Dr Turnbull is not dissimilar to the Panel's diagnosis. It is not a case, for example, where Dr Turnbull has gone on to diagnosis some other condition such as a somatoform disorder or Post-traumatic Stress Disorder. Nevertheless, to the extent that his diagnosis is in conflict with the Panel Opinion, the Panel must be preferred.

31 Dr Turnbull was asked a question about the plaintiff's ability to work. The question and his answer to it are as follows:

"How does our client's injuries affect his ability to work, and what are his functional restrictions?

Psychiatrically, I think the distractions and problems with his memory and concentration and mood state are severe enough such that there are questions about what sort of work he can do.

I do not say this with any disrespect, but he seemed to me to be quite intellectually challenged when I assessed him, he had difficulties with word finding and recall, and he does not seem to be a very sophisticated man in terms of skills that he can apply to a workplace. I am not able to identify any work that he could do safely, and I think his level of agitation and distress are enough that even if he was doing purely physical tasks, there would be questions about his ability to do that reliably and with stamina and in a safe and effective fashion."[16]

32 Finally, in respect to prognosis, Dr Turnbull said:

The prognosis is not good unless there is a major shift for the better in terms of his physical health. If that remains much the same, then this man's psychiatric state is likely o remain at depressed levels and potentially worsen. The suicidal thinking is of concern."[17]

33 The description of symptoms obtained by Dr Turnbull are broadly similar to those obtained by the Panel. Critically, Dr Turnbull was unaware of the Panel Opinion that as at December 2019, the plaintiff was fit for work in his pre‑injury role with the employer. Dr Turnbull has taken a global approach to the assessment of the plaintiff's condition and the severity of it. There is no path of reasoning in his report which supports the submission made on behalf of the plaintiff, namely of a deterioration in his psychiatric condition so that it is now "severe". That is not necessarily a criticism of Dr Turnbull, because he was ignorant of the Panel's Opinion and he was not asked to consider this issue of deterioration.

34 Dr Turnbull's report is also predicated on a finding that the plaintiff's physical conditions are work related, bearing in mind the Panel concluded that there is no intrinsic persisting work related condition physical injury to the lumbar spine or the left lower limb. As such, aspects of Dr Turnbull's report do not correlate to the opinion from the Panel, which further impacts on the weight to attach to his report.

35 More broadly regarding the question as to the "severity" of the compensable injury, it is relevant that the plaintiff has no active psychological or psychiatric treatment. He does not take medication for any claimed psychiatric/psychological condition. Dr Turnbull said that psychiatrically he is an "unhappy and depressed man". How much of that relates to the compensable injury as identified by the Panel is unclear, but in my opinion, taken at its highest (assuming that it could be so taken in light of the Panel Opinion) the symptoms described by Dr Turnbull, combined with the lack of treatment and the fact that the plaintiff is still able to function at a reasonable level, as evidenced that he is now the carer for one or both of his parents, leads to a conclusion that his overall psychiatric condition is just not "severe" in any event.

36 For completeness, the only other relevant medical opinion relied on by the plaintiff is from the treating general practitioner Dr Sheriff. A number of things are clear from Dr Sheriff's reports, but it is only necessary to refer specifically to the relevant report that post-dates the Panel Opinion. Firstly, I have no doubt that he is concerned and worried about the health of his patient. Secondly, there is also no doubt he does not accept the Opinion of the Panel. This is made clear in his report of 18 June 2021[18] where he described himself as "extremely surprised" as to the findings and conclusions of the Panel and said that he disagrees with the Panel's assessment[19]. His report goes into considerable detail regarding the plaintiff's various health issues. He says that "the psychological impact has been tremendous" on the plaintiff. But, much of his report is inadmissible by reason of the Panel Opinion.

37 Dr Sheriff may not accept the Panel Opinion but of course the Court is bound to accept and apply it. In any event there is little useful evidence in his reports regarding the plaintiff's psychiatric condition, as the reports are mostly directed to other health issues. There is no evidence in his reports that assist the plaintiff on the submission that his psychiatric condition has deteriorated since the Panel Opinion.

38 This proceeding has been brought in circumstances where questions were referred to a Medical Panel and answered by it. The parties agree that those questions and answers are binding. Despite that agreement, the plaintiff's case ultimately proceeded in a manner designed to try and avoid the Medical Panel opinion. There is simply no evidence of any deterioration to enable a conclusion that the "severity" of the compensable injury as identified by the Panel is now "severe". The reality is that the admissible evidence never elevated the plaintiff's psychiatric condition and impairment beyond that found by the Panel.

39 Accordingly, the application is dismissed. I will hear from the parties as to the question of costs.

[1] Plaintiff's Further Amended Court Book ("PCB") page 6

[4] Defendant's Amended Court Book ("DCB") 23

[5] Transcript ("T") 110, Lines ("L") 10-11

[12] 26 June 2019, paragraph 31 PCB 159