Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108

Court of Appeal (Vic)|2009-05-22|Before: WARREN CJ, NEAVE JA, HARGRAVE AJA

ACCIDENT COMPENSATION - Serious injury application under s 134AB(16)(b) of Accident Compensation Act 1985 - Application dismissed by County Court - Appeal to Court of Appeal under s 134AC of the Act - Whether permanent severe mental or behavioural disturbance or disorder consequent on physical injury in course of employment - Appeal allowed and leave granted to commence common law proceeding.

2 In early 1995, while her TAC claim was being considered, the appellant commenced employment with the respondent, cleaning office buildings in the city of Melbourne. In October 1996, the appellant's TAC claim was settled. She was paid about $12,000 together with a contribution towards her legal costs. Shortly prior to the settlement, the appellant was examined in June 1996 by a neurosurgeon at the request of her solicitors. She told the neurosurgeon that she suffered continuing pain in her neck, shoulders, arms and legs. The resulting report prepared by the neurosurgeon was obviously relied upon by the appellant's solicitors in negotiating a settlement of her TAC claim.

3 The appellant also told medical practitioners who examined her in connection with the TAC claim that she was suffering from some mental responses to her physical injuries, including nightmares, anxiety and depression. These were noted in various medical and psychiatric reports at the time, and these reports must also have been taken into account in arriving at the settlement figure for the TAC claim.

4 The appellant now contends that her symptoms arising from the 1994 collision were limited to some pain in her neck and that, well prior to her being injured in the course of employment with the respondent, her neck pain had resolved completely. Further, she does not recall any of her mental problems arising from the injury suffered by her in the 1994 collision, and denies that any problems which she did experience at that time were persisting at the time she was injured in the course of her employment with the respondent.

5 The appellant contends that she first noticed pain arising from her work duties some time prior to November 1997, but that she was able to cope with her symptoms and did not seek any medical assistance at the time. She continued working until, in late 1999 or early 2000, she began suffering from increasingly severe pain in her right shoulder, arm and hand. She contends that these physical symptoms have caused her to develop permanent and severe mental disorders.

6 In June 2000, the appellant was certified by her general practitioner as unfit for work by reason of her physical injuries. As a result, she completed a claim form seeking worker's compensation under the Accident Compensation Act 1985 (Vic) (the 'Act'). The worker's compensation claim was based on the assertion that the appellant had been injured in the course of her employment as a cleaner with the respondent.

7 The appellant completed a worker's compensation claim form. In response to a specific question on that form as to whether she had any previous pain or disability in the area of the injury for which she was making a claim, she answered 'No'. If her TAC claim was honestly made, that answer was false.

8 The appellant's worker's compensation claim was initially accepted and she received worker's compensation payments from 2000 until February 2007. However, during this period, her claimed symptoms, both physical and mental, increased in severity and the worker's compensation insurer began to experience increased doubt about the honesty of her claim. Video surveillance of the appellant undertaking some normal day to day activities and social interaction, in contra-distinction to the histories she was presenting to medical practitioners, heightened the insurer's suspicions. The worker's compensation payments ceased.

9 The appellant made an application to the worker's compensation insurer for consent to bring proceedings against the respondent for common law damages. When that consent was not forthcoming, the appellant applied to the County Court under s 134AB(16)(b) of the Act for leave to commence proceedings for the recovery of damages for serious injuries suffered in the course of her employment with the respondent (the 'serious injury application'). The appellant sought leave to recover damages for both pain and suffering and loss of earning capacity. In her applications, the appellant relied upon both paragraph (a) and paragraph (c) of the definition of 'serious injury' contained in s 134AB(37) of the Act. Those paragraphs of the definition are in the following terms:

serious injury means -

(a) permanent serious impairment or loss of body function; or

...

(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or

...

10 At the hearing of her serious injury application, the appellant's senior counsel abandoned her claim based on paragraph (a) of the definition. Accordingly, the sole case which the appellant maintained in the County Court was for leave to commence proceedings in respect of a 'permanent severe mental or permanent severe behavioural disturbance or disorder' arising from the physical injuries allegedly suffered by her in the course of employment with the respondent.

11 The serious injury application was heard in the County Court over three days in September 2007. On 5 October 2007, the trial judge dismissed the application. The application was dismissed because the trial judge did not accept that the appellant had given an honest account of her symptoms, both physical and mental, to the treating and medico-legal doctors who examined her. Accordingly, the trial judge rejected expert psychiatric opinions to the effect that the appellant suffers from a permanent severe mental or permanent severe behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury.

12 On appeal, senior counsel for the respondent conceded that the opinions expressed by the appellant's treating psychiatrist were, if based upon an honest account by the appellant of her behaviour and symptoms, sufficient to establish that the appellant was suffering from a serious injury within the meaning of paragraph (c) of the definition. That concession was properly made. However, the respondent contends on appeal, as it did below, that the appellant is not a credible witness and that this Court should accordingly reject the medical opinions which are based on the history of the appellant's behaviour and symptoms as given by her to the medical practitioners whose reports are in evidence. It was submitted that before the psychiatric evidence is considered, the appellant had to satisfy the court that she suffered a physical injury caused by her employment with the respondent. Furthermore, the respondent contends that, even if the Court accepts that the appellant suffers from a serious injury, her application should nevertheless be refused because her lack of credibility should lead the Court to reject her evidence that she had recovered from her injuries resulting from the 1994 collision prior to the onset of her claimed physical symptoms in late 1999.

13 In accordance with the decision of the High Court in Dwyer v Calco Timbers Pty Ltd,[1] it falls for this Court, on appeal, to determine the appellant's serious injury application for itself. In Church v Echuca Regional Health,[2] this Court considered the way in which that task should be approached. The following principles are relevant to the determination of this appeal.

14 First, in determining the appellant's application, it is unnecessary for the appellant to demonstrate error by the judge below.[3] This Court must make its own determination. However, there is an exception to this where this Court forms the view that the reasons given by the judge below are inadequate. In such instances, this Court may, not must, remit the application for re-determination. Whether or not the application should be remitted depends upon whether this Court 'considers itself as well placed as the judge below to decide the matter for itself.'[4]

15 In this appeal, the appellant challenges the decision below on grounds including that the judge failed to give adequate reasons. This ground of appeal was referred to in written submissions, but not developed in oral submissions. There is no need to consider it further. In our view, the reasons given by the trial judge were adequate. The appellant was left in no doubt as to the reasons why her serious injury application was refused. The trial judge did not accept her as a credible witness or a credible historian of her symptoms when relating them to medical practitioners who examined her. Nor did he accept the evidence of her husband and son, who swore affidavits confirming aspects of her evidence.

16 However, even if the reasons may be open to challenge on the ground of inadequacy, that result does not dictate that this Court should remit the serious injury application for re-determination by the County Court. In our view, although the central issue in this case concerns the credibility of the appellant, this Court is as well equipped as the judge below to determine the application for itself.

17 Second, s 134AD of the Act requires this Court, in determining the appellant's serious injury application, to take into account all of 'the evidence and other material before the judge who heard the application' and also any other evidence which this Court is entitled to receive under any other Act or rules of court. Where the judge who heard the application records in his or her reasons for judgment an observation concerning a witness' demeanour, that observation should be taken as a record of evidence before the judge, and must be taken into account by this Court.[5]

18 In this case, the trial judge made observations in his reasons about the manner in which the appellant 'presented to the Court' during the three days of the hearing. Those observations are set out below:

The plaintiff's presentation to the doctors who examined her was such as she exhibited a miserable expression and sat in a hunched position, made little eye contact and generally presented in a very depressed manner (see Dr Epstein's report of 27th March 2007). Further examples of this type of presentation are to be found in the reports of Dr Postlethwaite, Ms Bachelor, Dr Strauss, Dr Kaplan, Ms Margaret Leitch, who made a vocational assessment, and who is an occupational therapist, on the 6th March of this year. The plaintiff's treating psychiatrist, Dr Holwill, said, that she was, "Even able to smile on occasions." The plaintiff's treating general practitioner, Dr Muniratna, said:

"Mrs Sejranovic has visited me once or sometimes twice a month (after first consulting her on the 16th November 2000) ... I have never seen her smile over this period."

That report was dated 20th August 2007. The plaintiff presented to the Court in a similar fashion during the three days of the hearing. This presentation was in marked contrast to the plaintiff's appearance on video surveillance film taken on the 3rd and 7th July 2003, the 15th March 2006, the 23rd, 24th and 27th May 2006 and the 15th and 17th December 2006. Those videos in general showed the plaintiff to be a confident and alert woman who went about her life without a care in the world.[6]

19 Based upon his observation as to the appellant's presentation, the trial judge concluded that the appellant's presentation in Court (and to the doctors who examined her) 'was in marked contrast' to her appearance on video surveillance films. It falls for this Court to determine whether that is so.

20 The trial judge also made an observation that he found the appellant's husband to be 'a most unimpressive witness'. However, this was not articulated as an observation as to the husband's demeanour as a witness. The trial judge's observation was a conclusion based upon his view as to the improbability of certain evidence given by the appellant's husband, and the inconsistency of that evidence with certain aspects of the histories given by the appellant to various medical practitioners.

21 The appellant also contended in her grounds of appeal that she was denied natural justice because the trial judge did not accept the invitation from her counsel to inspect the appellant's husband's left arm to see a scar which is contended to be consistent with her case that her mental disorder caused her to slash her husband with a knife. It was submitted that it was a denial of natural justice in the circumstances of the case because, having declined the invitation to inspect the scars, the trial judge concluded that the appellant had not in fact slashed her husband with a knife. However, in the course of argument, senior counsel for the respondent conceded that the husband's scar had been seen by one of the doctors who had examined the appellant, Dr Kaplan, and that there is no dispute that there is such a scar. It is unnecessary to consider this ground of appeal further.

22 The totality of the evidence before this Court, upon which the appellant's serious injury application must be determined, comprises the following:

(1) Three affidavits sworn by the appellant in support of her application, together with the transcript of her evidence in chief and cross-examination.

(2) An affidavit sworn by the appellant's husband, together with the transcript of his oral evidence.

(3) An affidavit sworn by the appellant's son. The son was not cross-examined and gave no oral evidence.

(4) Many reports prepared by doctors and allied health professionals who examined the appellant in connection with the injuries allegedly suffered by her in the 1994 collision and in the course of employment by the respondent. These reports were prepared by both treating practitioners and for medico-legal purposes in connection with the appellant's TAC claim and serious injury application. None of the authors of these reports swore any affidavit or gave any oral evidence. It is for the Court to resolve any inconsistencies in their observations and opinions as best it can.

(5) The trial judge's observation as to the demeanour of the appellant during the course of the three day hearing before him.

(6) Many hours of video surveillance of the appellant.

23 Because it falls for this Court to decide for itself whether the appellant's psychiatric injury is a serious injury within the meaning of paragraph (c) of the definition, it is necessary to set out the facts in detail.

24 Following the 1994 collision, the appellant was taken to hospital where she complained of pain in the neck, thoracic back area and right hip. X-rays taken at this time revealed no abnormality.

25 Over the following year, the appellant saw various doctors at the Western Region Health Centre. On the first occasion that she attended, her complaints included dizziness, headaches and a sore neck. The general practitioner who treated her diagnosed sore cervical muscles and referred her to physiotherapy. A month later, the appellant told a general practitioner that her neck pain was improving but her headaches were increasing in severity. She was diagnosed with post-concussional syndrome and given strong pain killers. Treatment with pain killers, a 'TENS' device and physiotherapy did little to improve her headaches over the balance of 1994. She then received some acupuncture which gave temporary alleviation of her symptoms. A CT scan of her head taken in May 1995 revealed no abnormality.

26 The appellant was examined by Dr Peter Brett at the request of her solicitors in August 1995. She told Dr Brett that she had commenced work as a part-time cleaner in April 1995. She complained of very severe headache and neck pain, and told Dr Brett that her neck pain radiated into her shoulders, shoulder blades, down both arms and into her hands. She said that she had intermittent pins and needles, numbness in her hands and thought that her hands were weak. In addition, she complained of poor sleep.

27 Dr Brett accepted the appellant's symptoms as genuine. On examination, he observed wide-spread tenderness over the appellant's neck muscles extending into both shoulder blades. He concluded that the appellant had suffered a whiplash injury which had left her with severe headaches and 'a painful stiff neck which does not appear to be improving'.

28 The appellant was then examined by a psychiatrist, Dr Paul Kornan, at the request of her solicitors. The appellant told Dr Kornan that her employment as a cleaner was 'hard' but that she had no choice but to work for financial reasons. She told Dr Kornan about her physical symptoms that:

The worst part is the headaches and the neck...Every day...Mainly Panadeine Forte. I took four and got so dizzy so I continued with three and now two a day. The whole day long, non-stop...In the last month it never stops. The neck, the back of the neck...That would be...I can't really say how often...How long...The worst bit is when I go to sleep...Yes...It is every day. With sleeping maybe not an hour...Something like an hour...I have bad dreams so I am scared to go to sleep. Nightmares every night I have. Just I dream of the crash into lorry and fall down somewhere...I wake up...Screaming in the street and I cry. The dreams are getting worse. Then shoulder pain, both shoulders. It's worse on the right side.

29 Dr Kornan concluded that the appellant was a person with an above average intelligence level who was suffering from mild anxiety and depression. There is no evidence that the appellant received any form of treatment for this or any like mental condition at this time or at any time prior to the year 2000.

30 Next, the appellant was examined at the request of her solicitors by Dr Peter Andrianakis in November 1995. The appellant told Dr Andrianakis that her symptoms included debilitating headaches, neck pain and stiffness accompanied by increasingly frequent nightmares, poor sleep and heightened anxiety. Dr Andrianakis expressed opinions that the appellant's physical symptoms were consistent with the injury suffered by her in the 1994 collision, that the appellant was not currently fit for work and that her injuries had a significant psychological component which was slowing rehabilitation.

31 The appellant was examined by Mr David Brownbill, a neurologist, at the request of the Transport Accident Commission in December 1995. The appellant described her symptoms to Mr Brownbill in the following terms:

pins and needles of the right arm...Involving all parts below the shoulder, being worse in the fingers and being present every 1 - 2 weeks.
neck pain...Involving all levels on both sides. It is present all the time, fluctuates in severity and is worse with neck flexion.

4. headaches...this is present all the time.

5. "I want to kill myself" ... Sometimes.

32 The statement by the appellant that she wanted to kill herself was made in the context of her description of the severity of her physical symptoms. It should be seen as an exaggeration of her pain level, rather than the expression of a suicidal thought based on depression arising from her pain.

33 Mr Brownbill concluded that the appellant had suffered a soft tissue injury to the structures about her cervical spine and that the injury had given rise to local pain which had acted as the basis for the onset of a psychological reaction.

34 Next, the appellant was examined by Dr R Townley at the request of the Transport Accident Commission. The appellant told Dr Townley that her main problem was constant neck pain and pain in the right half of her face and head. Further, she mentioned experiencing some dizzy spells, poor sleep, bad dreams and feeling depressed. Dr Townley stated that the appellant 'presented as a rather forlorn person' who sat comfortably during the interview and 'appeared to move her neck without discomfort during informal observation'. He concluded that the appellant had suffered a soft tissue injury to her neck in the 1994 collision, that she was exaggerating her symptoms and that she represented an example of a person suffering from chronic pain syndrome.

35 In March 1996 the appellant's treating physiotherapist wrote a short report to the Transport Accident Commission. The physiotherapist reported that the appellant's physical symptoms were objectively improving but that her subjective suffering remained the same due to the appellant being depressed. The physiotherapist reported that the appellant was improving from treatment in a group setting where the emphasis was on fun, self-management, aerobic exercise and stretching exercise.

36 Finally in respect of the appellant's injuries arising from the 1994 collision, she was examined by a neurosurgeon, Mr J Cummins, at the request of her solicitors. Mr Cummins noted that the appellant gave a history of poor sleep and nightmares, and was taking valium twice a day. As to her physical symptoms, Mr Cummins recorded that the appellant gave the following history:

Since the accident she has had problems associated with her neck, shoulders, head, hips and legs. She has also had problems with her back and her upper limbs.

She has continued to suffer with pain in her neck particularly at the back. She has regular physiotherapy and acupuncture for this pain.

Since the accident the whole of her right arm is intermittently numb and at times she has the feeling that the whole of the arm is stiff. Sometimes she has the same sensation in the left arm.

She has constant pain in each shoulder, in the right elbow and in the right forearm and hand. The pains are dull and at times the arms feel numb. She has intermittent similar pain in the left elbow and hand.

Her nerves have been bad since the accident.

She suffers from nightmares and has difficulty sleeping.

Prior to the accident she was cheerful and now she is depressed.

She feels as if she is drugged continuously because of her medication.

37 Mr Cummins concluded that the appellant had suffered a minor head injury in the 1994 collision with resulting headaches and dizziness. In his opinion, the appellant had major emotional problems and he strongly recommended that the opinion of a psychiatrist be sought.

38 On the basis of the medical evidence described above, the appellant's TAC claim was settled in October 1996. The appellant gave a common law release to the Transport Accident Commission.

39 Taking this medical evidence as a whole, it is clear that the main physical symptoms claimed by the appellant as a result of the 1994 collision were of constant pain in the neck, associated pain in her shoulders, arms and hands, headaches and facial pain. The focus of these symptoms was on the right side. In addition, the appellant claimed that her symptoms caused anxiety, depression and poor sleep. Some of the medical practitioners thought that the plaintiff was exaggerating her symptoms and that there was a significant mental response to her injuries.

40 Following the settlement of her TAC claim, there is no evidence that the appellant continued to receive any further treatment for her claimed symptoms arising from the 1994 collision. She says that there was no need for her to seek any further treatment because her symptoms arising from the 1994 collision had all resolved.

41 The appellant commenced working as a part-time cleaner for the respondent in early 1995. Initially, she worked in the evenings. Subsequently, she worked in the early mornings. The appellant described her cleaning work as 'fast, constant and intensive.' Her tasks included vacuuming with a vacuum cleaner strapped to her back, cleaning kitchens, emptying rubbish bins, dusting and general cleaning.

42 The appellant gave evidence that the initial onset of pain arising from her employment with the respondent occurred some time prior to 12 November 1997. However, the pain experienced at this time was not continuous and not sufficiently painful to interfere with her ability to continue working. She continued working at this time. After an unspecified, but significant, period of time there was a change in the appellant's work duties. She commenced cleaning a different floor in an office building in which she had been working for some time. The appellant described her new duties as being more onerous than the duties previously undertaken.

43 The appellant swore that her pain levels increased towards the end of 1999. In her affidavit evidence, she described the onset of these symptoms in the following terms:

Towards the latter part of 1999 I began to suffer increasingly severe problems affecting my upper right limb in particular. I had pain from my right shoulder down into the fingers of my hand which would go numb and stiff. I suffered loss of sensation in my right index, middle and ring fingers. There was sharp pain present in my shoulder, elbow and wrist areas. I lost power and strength in my right hand and could drop things. I also noticed the development of symptoms affecting my neck and spine.

44 When the appellant complained to her employer about her increasing pain, she was offered assistance but it was not forthcoming. A union representative also promised to support her request for help in performing her duties, but no help was forthcoming. The appellant kept working until June 2000. We infer that she did so, notwithstanding her symptoms, because she did not wish to risk her employment being terminated or her hours reduced.

45 The appellant first sought medical assistance in connection with these symptoms on 22 March 2000. She was prescribed pain relieving medication and underwent some laser acupuncture. Her symptoms did not resolve. She continued to work until 6 June 2000, when she ceased due to her continuing symptoms.

46 On 13 June 2000, the appellant signed a worker's compensation claim form. In that claim form, she described the cause of her injuries as 'Excessive vacuuming and lifting at job.' She described her injuries as pain and numbness in her right hand, neck, shoulder, back and arm. In response to the question 'Have you had any previous pain or disability in the area of your present injury/condition? If yes, please give details' she responded 'No'. This answer was either false or, if not, establishes that the appellant lied to the Transport Accident Commission and doctors who examined her in connection with her TAC claim.

47 The appellant made some attempts to recommence work in the latter part of 2000 and the first half of 2001. She found the pain intolerable and has not worked since. As appears below, the principal reason for this is the development of a psychiatric illness making her unfit for work.

48 As stated above, the appellant's worker's compensation claim was initially accepted. She received weekly payments of worker's compensation until February 2007.

49 On 17 October 2005, the appellant made an application under s 134AB(4) of the Act seeking the consent of the worker's compensation insurer to bring a common law proceeding seeking the recovery of damages from the respondent in respect of a serious injury suffered by her as a result of her employment. In her application, the appellant relied upon both physical and psychological injuries.

50 The application was supported by an affidavit sworn by the appellant on 17 October 2005, and copies of numerous of medical and radiology reports.

51 The worker's compensation insurer was not satisfied that the appellant had suffered a serious injury as a result of her employment with the respondent. Accordingly, the insurer refused to issue a certificate consenting to the appellant bringing proceedings for the recovery of common law damages from the respondent. As a result, the appellant commenced an application in the County Court under s 134AB(16)(b) of the Act, seeking leave to bring common law proceedings against the respondent for the recovery of common law damages. As appears above, that application was refused by a judge of the County Court. The trial judge did not accept that the appellant had given an accurate or honest account of her symptoms to the medical practitioners who had given opinions that she had suffered a severe mental disturbance or disorder.

52 In her three affidavits, the appellant deposed to the following relevant matters:

(1) She was educated until 21 years of age. She completed training in 'economics' in Bosnia.[7] She performed secretarial and book-keeping work in Bosnia until she migrated to Australia. On her migration, her language difficulties limited her to seeking manual work.

(2) Prior to her migration, she had not suffered any injuries similar in nature to the injuries which are the subject of her serious injury application. She made no mention in any of her affidavits about the 1994 collision or her TAC claim.

(3) She attempted to return to work in July 2000 but could not cope because of the pain she was suffering. There were a number of attempts to return to work, but each met the same fate. She experienced increasing difficulty in coping with any of her work tasks. She became depressed and commenced having suicidal thoughts. In that regard, she deposed as follows:

On some occasions I had suicidal thoughts and I used to think about walking in front of a truck. One night I waited until my family was asleep and then I walked out of the house and onto the main road. One family member heard me and pulled me away. On another occasion, my husband and son found me as I was preparing to jump off a bridge. On another occasion I took a knife with the intention of killing myself and when my children tried to take the knife away from me I attempted to injure them. I found that my appetite was down and that I was suffering problems with memory and concentration. I found the pain which I was suffering a constant drain on me.

(4) She continued to suffer 'constant and severe pain' affecting her shoulders and arms in particular. She also had continuing problems relating to the power and function in her left leg.

(5) The appellant described the effect of her physical and mental symptoms upon her quality of life in the following terms:

By reason of my injuries my lifestyle has been affected in a wide variety of ways. I have referred already to the fact that I was forced to cease employment through injury. I believe that by reason of my injuries I remain totally unfit for employment. I have suffered considerable financial loss by reason of my inability to remain in the workforce. My injuries have also significantly and adversely impacted upon my marriage. My husband and I argue frequently and this causes added stress within the family. We no longer sleep together and my husband has accused me of being unfaithful to him. I have at times thought of ending my life cause [sic] of the circumstances in which I now find myself. I have taken too many tablets on occasions and my husband now controls my medication. I do not sleep properly and am constantly feeling tired and run down.

(6) In her final affidavit, the appellant expanded upon the effect of her symptoms upon her quality of life. She deposed as follows:

I continue to be troubled by constant and severe pain affecting my shoulders and upper limbs and spine in particular. ... I find that I am extremely frustrated and depressed about the limitations which I face and on a number of occasions I have picked up a knife to contemplate suicide and on one occasion my husband was trying to stop me and I managed to slash him with the knife. He should have gone to hospital but was afraid to in case the police became involved.

In terms of other aspects of my life, I rarely go out now. I don't enjoy going out and prefer to stay at home. My circle of friends has diminished considerably and my social life has been destroyed. I have gone out on some occasions at the recommendations of my doctors but have found that by the time I return home my state is such that I am liable to fly off the handle and create an argument at home. I am often irritable and angry at home in any event, and this is why my sons moved out. My sexual relations with my husband have collapsed. My husband controls my medications to ensure that I do not overdose as I have taken overdoses on a number of occasions. My sleep is poor and I constantly wake even though I take the medication to help me sleep.

53 The appellant also gave brief oral evidence. In her oral evidence, she gave evidence for the first time about the 1994 collision. When asked about the injuries which she suffered in that collision, the appellant said 'I didn't have much. I had a painful neck, as far as I remember.'

54 During cross-examination, the appellant gave the following relevant evidence, which contains a number of inconsistencies:

(1) Apart from consistently stating that she recalls some pain in her neck as a result of injuries suffered in the 1994 collision, the appellant could not remember any of the other symptoms which she related to the various medical practitioners who examined her in connection with her injuries and TAC claim as a result of the 1994 collision. Her simple response to cross-examination about these other symptoms was to this effect:

I do not remember any of this. I know...I was in an accident. I know I had a painful neck. That I remember. I do not remember anything else.

'I am not denying anything, I just do not remember, I do not know.'

(2) Once she started working for the respondent in 1995, she did not take any time off for sickness or injury until 2000. Although she felt pain in her neck at the time she started work with the respondent, she was otherwise well. The pain in the neck then resolved.

(3) The appellant denied being suicidal, or having psychological problems, as a result of the injuries suffered by her in the 1994 collision. When it was put to her that she told Dr Brownbill in December 1995 that 'I want to kill myself', she responded 'I do not remember that because at that stage then I had a beautiful life...I wouldn't have said that.'

(4) She said that her current symptoms were mainly in the right shoulder and right arm, including the elbow, hand and fingers. She denied that these were also her main problems as a result of the injury which she suffered in the 1994 collision. She expressly denied that she complained that her right arm was numb and stiff as late as June 1996. She said that problem 'all started' in 2000.

(5) She tries to go out because the doctors have advised her that she should not sit at home alone but should go out and shop, and meet with people. She said that sometimes this makes her feel better but that this feeling disappears when she returns home. She often has severe pain and, at those times, she lies down and cries. At other times, she can sit, stand, shop and perform most home duties.

(6) When it was directly put to her that she can move much better than she claims, she responded:

Sometimes I can, other times I cannot. I cannot - even at home, I can sit at home and I can do whatever I can do. I do the same with the doctors, when I can do something, when I feel better, I do something, when I cannot, I don't.

(7) When it was put to her that she told Dr Epstein that she was totally unsociable, she replied that this was sometimes so: 'When I'm not well I cannot get on even with my children let alone be sociable with others and I stay in the house.' She said that, when she feels better, 'I try to do anything I can.' However, when she does not feel well 'I cannot do anything at all'.

(8) She acknowledged that she sometimes smiles when she is in company because 'They all say I'm crazy, I'm nervous, I lost company, I lost friends.'

(9) The video surveillance footage was shown in Court. Afterwards, it was put to the appellant that her conduct as depicted on the video was inconsistent with the symptoms recounted by her in her evidence and to the medical practitioners who examined her. Consistently with her earlier evidence, the appellant responded 'When I am better ... I try to do everything I can and I do whatever I can.' However, 'When I am not well I cannot do anything'.

55 The appellant's husband, Enes Sejranovic, swore an affidavit in which he sought to confirm aspects of the appellant's affidavits. Relevantly, Mr Sejranovic deposed as follows:

(1) The appellant complained to him of pain arising from her work duties. He observed the appellant suffering from pain affecting her right shoulder and arm. Subsequently, as the right arm was favoured, he noticed that the appellant was suffering problems with her left arm also.

(2) He noticed the onset of his wife's psychological condition after the onset of her physical injuries. Prior to that time the appellant 'was very well balanced and central part of our family unit.' He said that the marriage and family life was happy until the onset of the appellant's physical symptoms in 1999. Through both he and his wife working, they were able to support their two sons and build up sufficient capital to purchase a flat in September 1996 and a 'house and land package' during 1999.

(3) Mr Sejranovic confirmed the appellant's evidence that she had attempted suicide and that, while he was preventing her from harming herself with a knife, his wife had attacked him with a knife. He deposed:

I am able to verify that I had to rescue my wife on one occasion as she was preparing to jump off a Citylink bridge. On a number of occasions my wife has threatened to injure herself with a knife and also has attacked me with a knife and I have a 6cm scar on my left upper arm as well as stab wounds on my back and chest as a result of these incidents.

...

To date my wife has not harmed herself physically using a knife. I have had to restrain her from doing so on a number of occasions. However, she has taken overdoses of medication on a number of occasions. I now prevent my wife from having access to medications and distribute those medications which she requires to her as recommended by medical practitioners.

(4) Mr Sejranovic also described the effect of the appellant's condition on her quality of life and upon their relationship. He said that his wife was 'barely controlled by the medication which she uses', that her relationship with her two sons has almost broken down completely, that the appellant 'infrequently leaves the house and that she has almost no social life' and that their sexual relationship has ceased. He has witnessed the appellant's psychologist, Ms Batchelor, advise the appellant to 'get herself out of the house' and have social interaction.

56 Mr Sejranovic also gave some brief oral evidence and was cross-examined. His evidence in chief was limited to formal matters and the alleged knife attacks on him by his wife. He said that the six centimetre stab wound on his left upper arm was inflicted on him by his wife 'before Christmas' in 2006. This knife attack formed a significant aspect of the serious injury application pursued in the County Court and on appeal.

57 In cross-examination, the following relevant evidence was given by Mr Sejranovic:

(1) The appellant had not been placed in a psychiatric hospital because he refused to let her be admitted. He said that the admission of his wife to a psychiatric hospital would be a 'great shame for me'.

(2) The incident where the appellant tried to jump off a bridge took place following an argument in the car where the appellant was screaming and yelling. This unnerved Mr Sejranovic and he stopped the car. The appellant then opened the door and 'flew out' towards the bridge. When asked what bridge the appellant tried to jump off, Mr Sejranovic responded 'That bridge where there is a road climbing up towards the Westgate Bridge and ... Footscray Road.' In contrast to the trial judge, I do not find this evidence lacks credibility. I see no reason to doubt the husband's evidence as to the reason for him stopping the car. Those circumstances are consistent with other evidence given by him and his wife. The mere fact that the husband gave a vague description of the bridge in question should not cause this evidence to be rejected. Further, this is not the only evidence of the appellant attempting to harm herself when she became irrational.

(3) He denied that the appellant had experienced any previous psychological problems prior to the injuries which she suffered in the course of her employment with the respondent. He could not recall the appellant suffering from psychological problems, nightmares or depression, or taking any psychiatric medication, prior to the year 2000.

(4) He also denied that the appellant had suffered any previous pain which was 'uncontrollable, unbearable pain'. He agreed with the proposition that the pain and psychological problems all started in 1999 and that, prior to that time, 'she was perfectly fine all her life'. When it was put to Mr Sejranovic that his wife had complained of pain in the head, neck, middle of the back and lower back in the period 1994-1996, he responded that his wife complained about pain in the neck during that period. He said that he did not mention this pain in the neck when asked about previous 'uncontrollable, unbearable pain' because the pain in the neck between 1994 and 1996 was 'not drastic pain ... not bad pain like ... now.' This was an unimpressive aspect of the husband's evidence, giving rise to some doubt about his desire to be frank with the Court on this issue. However, it is not a sufficient reason to reject his evidence as a whole.

58 One of the appellant's sons, Mirza Sejranovic, also swore an affidavit in support of his mother's serious injury application. He deposed to the following relevant matters:

(1) He heard his mother complain of pain in her right arm and shoulder and, at a later point in time, her left arm also. His mother complained to him that her work with the respondent was 'too much for her but that nothing was done to alter her system of work.'

(2) He has observed the psychological deterioration of his mother and knows of no other factor in her life, apart from her work injuries, which could have brought about that deterioration. He described that deterioration by reference to events which he has witnessed:

...such as attempting to overdose through the use of medication, witnessing my mother with a knife on five or six occasions threatening to harm herself and on approximately three or four of those occasions attacking my father with a knife. I have also witnessed my mother slash my father with a knife striking him under the right arm.

...

As recently as 4th August, 2007 I witnessed yet another violent episode by my mother in which she attempted to attack my father with a knife.

(3) To his observation, his parents' marriage was a happy one prior to his mother becoming injured. He had a happy childhood. However, as a result of the psychological deterioration of his mother, he no longer has much contact with her. His mother's psychological condition motivated him to leave home because he was unable to undertake his studies in an orderly fashion.

60 The medical evidence in connection with the appellant's serious injury claim comprises reports from treating and medico-legal medical practitioners. Although the appellant does not persist with her initial case that she is suffering from a serious physical injury as a result of her employment, the medical reports as to her claimed physical injuries remain relevant in circumstances where it is contended that she is suffering from a severe mental disturbance or disorder which has resulted from the physical injuries suffered by her in the course of her employment. Further, the medical reports relating to physical injury are relevant because of the respondent's contention that the appellant lacks credibility, both in respect of her claimed physical injuries and her claimed mental response to those injuries.

61 In assessing the histories given by the appellant to the doctors who examined her, it is important to record that the appellant attended appointments with an interpreter. It appears that the appellant could understand much of what was said to her or asked of her, but had difficulty giving her history and answering questions in English. As a result, her statements and responses were usually made through the interpreter. Further, the appellant was at all times subject to the influence of the medications which she was taking for her symptoms. In these circumstances, misunderstandings may occur and inconsistent symptoms may be recorded. However, notwithstanding this, from reading the medical reports as a whole it is apparent that the appellant engaged in some exaggeration of her symptoms, particularly her physical symptoms, when giving histories to the medical practitioners who examined her.

62 As appears above, the appellant claims to have commenced suffering increasingly severe pain, particularly in her right shoulder, arm and hand, towards the end of 1999. She continued working without seeking medical assistance until 22 March 2000. On that day, the appellant consulted the Western Region Health Centre and asked to see a doctor. It appears that the appellant did not have one particular general practitioner whom she consulted at that health centre. She was seen by a different doctor than those who had treated her in connection with her injuries arising from the 1994 collision. There is no evidence that the appellant deliberately chose to see a different general practitioner to those familiar with her 1994 injuries. During cross-examination, the appellant said that she attended at the health centre and asked to see the 'first available doctor'. There is no reason to disbelieve that evidence. If the appellant had wished to conceal her 1994 injuries, by deliberately consulting a different general practitioner, it is unlikely that she would have sought treatment at the same health centre where she was treated by various doctors for those injuries.

63 The appellant was seen by Dr Ralph Wiener. In his report, Dr Wiener stated the appellant presented to him on 22 March 2000:

complaining of an approximately three month history of increasing pain and numbness, affecting both upper limbs, the right more than the left. She also complained of bilateral neck and shoulder, low back pain and some pain affecting the right lower limb. She felt that these symptoms were the result of her work duties, which had become more demanding during the last few months of 1999.

64 Dr Wiener accepted the appellant as presenting with a genuine condition. He initially treated her with simple analgesics, a diuretic and laser acupuncture. These brought about no improvement in the appellant's symptoms. Accordingly, Dr Wiener referred the appellant for nerve conduction studies of the right arm. These showed a mild right ulnar nerve lesion at the elbow, but the neurologist who reported this study felt that this lesion was 'of no clinical relevance'.

65 By 6 June 2000, the appellant told Dr Wiener that her symptoms had deteriorated to the extent that she could not continue working. Dr Wiener provided the appellant with a 'Workcover Certificate of Incapacity' and referred the appellant to a rheumatologist, Dr Stockman, for advice and management. Dr Stockman reported to Dr Wiener that the appellant was likely suffering from chronic pain syndrome precipitated by a soft tissue injury. Prior to him reporting to Dr Wiener, Dr Wiener had recommended that the appellant commence physiotherapy and anti-inflammatory medication. Dr Stockman recommended that this treatment continue and prescribed Endep at night to assist the appellant to sleep and provide muscle relaxation. X-rays organised by Dr Stockman were reported as normal.

66 In July 2000, the appellant returned to work on part-time restricted duties but had difficulty coping. Around this time, Dr Wiener prescribed an anti-depressant for the appellant and referred her to a psychologist, Ms Carol Moylan, for counselling. According to Dr Wiener, Ms Moylan reported to him that she had 'uncovered some suicidal thoughts' by the appellant. She recommended that Dr Wiener refer the appellant to a psychiatrist, Dr Perera. Dr Wiener made that referral. Not long after, in November 2000, the appellant decided to change general practitioners. In cross-examination, the appellant said that she did not have confidence in Dr Wiener, as she felt that he did not believe that her physical symptoms were genuine.

67 The appellant consulted Dr Meththa Muniratna on 16 November 2000, in place of Dr Wiener. She continued to consult him as her general practitioner from that time onward. She complained of a painful right arm, right shoulder, neck, right leg and feeling depressed. In July 2001, she told Dr Muniratna about her medication, which included anti-depressants and an anti-psychotic drug prescribed by Dr Perera. Dr Muniratna noted that the appellant:

presented very distressed. She said she was depressed and had tried to stab herself and the children. She had seen Dr Perera that morning. She was extremely stiff in her shoulders and joints and very depressed.

She was referred to the pain management clinic. Under the circumstances she was quite unfit for work. This was also the opinion of Dr Carlyle Perera.

68 The anti-depressants and anti-psychotic drug which the appellant was taking in July 2001 were steadily increased over the next few years. By mid-2004 the appellant's daily doses of Aurorix (an anti-depressant) had been increased from 300 milligrams to 900 milligrams. Her daily dose of Seroquel, an anti-psychotic drug, had been increased from 100 milligrams to 500 milligrams. A sleeping tablet, Stilnox, had also been added by this time. As counsel for the appellant submitted, the appellant has been treated with powerful drugs from at least 2001 in an endeavour to control her psychiatric symptoms. There is no evidence that the appellant did not take the drugs prescribed. This may explain some of her behaviour, inconsistent histories given to medical practitioners and inconsistent evidence.

69 The appellant continued to consult Dr Muniratna until the hearing of her serious injury application in the County Court. In his final report prior to that hearing, Dr Muniratna said that the appellant had consulted him once or twice a month since November 2000. Based on his continued treatment of the appellant over a long period of time, Dr Muniratna expressed the following opinion concerning the appellant's complaints and mental condition:

Mrs Sejranovic had visited me once or sometimes twice a month. She always complained of pain mainly [in her] neck and right arm and always presented as a very depressed woman. I have never seen her smile over this period. Sometimes she had been quite angry that nothing or nobody has helped her. There had been many instances when she had been aggressive to her family and on occasions violent.

...

Mrs Sejranovic is a very sick woman. She has a chronic pain syndrome and a mental condition with very poor insight and is unfit for any work.[8]

70 As appears above, the appellant was diagnosed from an early stage as suffering from a mental disorder which was secondary to the physical injuries suffered in the course of employment with the respondent. Commencing in late October 2000, the appellant was examined by a number of psychiatrists for the purposes of both treatment and the assessment of her worker's compensation claim.

71 The first psychiatrist who examined the appellant was Dr Carlyle Perera. According to Dr Perera, the appellant gave a history of wide-ranging physical symptoms which extended beyond pain in her right shoulder, arm and hand. The appellant told Dr Perera of severe pain in both shoulders and the back, both arms, her right leg and hip. She also said that she was suffering from numbness in the head with severe pain in the neck. The appellant told Dr Perera that she could only stand for about 15 minutes before feeling pain, was unable to sit for even a few minutes because of severe pain, was unable to turn in bed due to pain, could only shower and dress with difficulty, left virtually all of the cooking to her husband and had lost her sexual drive.

72 It is clear from Dr Perera's report that the appellant presented to him in a most depressed state, reporting suicidal thoughts. For example, Dr Perera recorded the appellant as stating:

"I wished to walk in front of a truck. The other night waited till all were asleep and walked out of the house and on to the main road. A member of my family who was awake came from behind and pulled me away. Another day my husband and son found me just as I was trying to jump off a bridge."

73 Dr Perera concluded that the appellant was suffering from chronic adjustment disorder with severe depressive and anxiety features, and work related chronic pain syndrome. He said that her prognosis was poor.

74 In August 2001, the appellant commenced attending at The Melbourne Pain Management Clinic and was seen by Dr Leonard Rose. She was subsequently also seen by a psychiatrist practising at the Clinic, Dr Brendan Holwill. Dr Holwill became the appellant's treating psychiatrist from that time. On occasions, Dr Holwill and Dr Rose saw the appellant together for treatment purposes. The reports for Dr Rose and Dr Holwill are considered below.

75 Dr Rose referred the appellant to an orthopaedic surgeon, Mr Stanley Schofield, for assessment of her claimed physical symptoms. Mr Schofield examined the appellant on 23 April 2002 and took a history from her. He arranged for MRI scans of her cervical and lumbar spine. The appellant told Mr Schofield that she had low back pain and referred pain into her buttocks and legs, particularly the right leg, which was 'totally numb'. The appellant also complained of pain in her neck and right arm with tingling in her fingers. She told Mr Schofield that she had difficulty doing her housework and difficulty sleeping.

76 On examination, Mr Schofield found some limitation of movement of the cervical spine, functional weakness of the right arm and inability to raise her shoulders 'due to alleged pain'. Mr Schofield noted that there was no wasting of the appellant's right arm. He also commented that the appellant showed signs of considerable functional overlay, and noted that the appellant's movements as requested by him were accompanied by 'moans, groans, and some sweating'.

77 Mr Schofield examined the MRI scans. He found the scan of the cervical spine was normal. The scan of the lumbar spine revealed multi-level lumbar degeneration, particularly in the lower two lumbar discs, but found no evidence of any nerve impingement.

78 In all the circumstances, Mr Schofield expressed the opinion that the MRI scans revealed 'no serious pathology' in either the neck or the lumbar spine and stated that he was unable to explain the appellant's symptoms on an organic basis. In his view, there was considerable functional overlay and, from a physical point of view, the appellant had a good physical prognosis although she should avoid strenuous work such as cleaning and endeavour to find work doing lighter duties.

79 Dr Rose saw the appellant on numerous occasions from August 2001 until at least January 2007. Dr Rose took a detailed history from the appellant. The appellant complained of wide-ranging symptoms in her arms and hands. At the time of initial presentation to Dr Rose she told him that her 'worst problem':

was of pain in both shoulders and elbows particularly with increased activity of the left arm. She had neck pain, lower back pain, and pain in both hips and she claimed that the right hip had been particularly painful for the past seven to eight months.

80 The appellant also told Dr Rose of her mental problems as a result of her pain. She told him she had been seeing a psychologist and a psychiatrist because she had been 'driven crazy by my pain'. She told Dr Rose that she had tried to kill herself on several occasions because she could not live with her pain and because no-one appeared to believe her. She recounted that she attempted to kill herself with a knife and, when her children had come to take the knife away, she attempted to stab them.

81 Dr Rose made an initial diagnosis of a wide-spread fibromyalgia syndrome. He did not believe that there was anything significantly wrong with the appellant's cervical spine or lumbar spine. He was most concerned about the appellant's psychological state and arranged for her to commence being treated by Dr Holwill, a consultant psychiatrist at the Clinic with whom he could liaise concerning her treatment. Later, Dr Rose arranged for the appellant to change psychologist. The recommended psychologist was Ms Fiona Batchelor, a clinical psychologist with whom Dr Rose and Dr Holwill had worked successfully in the past.

82 The appellant consulted Dr Rose on at least 39 occasions in the period between August 2001 and January 2007. Reading his reports as a whole, it is clear that he was most concerned about the appellant's mental condition. By March 2003, Dr Rose felt that none of the treatments prescribed by him for the appellant's pain had made any real difference, and recorded in his own handwritten notes that 'I really don't see any further role for me in this situation'.

83 By June 2003, Dr Rose noted that the appellant was still complaining of severe pain in all of the areas in which she had previously complained of pain 'but particularly in the right arm and shoulder'.

84 In October 2003, Dr Rose concluded in a report as follows:

... I believe that there is a primary work related physical condition which has been the major factor in preventing Mrs Sejranovic from being able to return to her employment. I believe that she suffers from a widespread fibromyalgia syndrome which is recognised throughout the world as being associated with the type of repetitive work that she was carrying out while she was employed by Berkeley Challenge. I also believe that the accompanying significant psychiatric symptoms would have been triggered by her pain and distress over the last few years.

I believe that she continues to be significantly disabled and in fact, in my opinion, totally unable to work at this time and I do not believe that she is ever likely to return to any form of employment in the future.

85 The appellant saw Dr Rose, together with Dr Holwill, in January 2007. This appears to be the last occasion on which Dr Rose saw the appellant. In his final report, Dr Rose noted that, following this consultation, Dr Holwill noted that the appellant was more irrational than usual. Dr Rose concluded in his final report dated 1 February 2007 that:

Along with her physical disorder and disability she has a significant psychiatric disability which has continued throughout the time that she has been seen at our clinic.

This has been tested in a variety of tribunals including the medical panels and I believe that the patient is still suffering from significant psychiatric disability which is associated with her pain and her work related disability.

86 The appellant's treating psychiatrist from November 2001 until, at least, the time of the hearing of her serious injury application in the County Court, was Dr Holwill. He saw her on 36 occasions. The appellant gave Dr Holwill a history of wide-ranging physical symptoms. That history was not entirely consistent with the histories given to other medical practitioners. In particular, although the focus remained upon pain in her right arm and hand, there was increased emphasis upon the appellant's claim that she was experiencing pain in the lower back with radiation into her legs.

87 Dr Holwill provided his first report in October 2003. By that time, he was increasingly concerned about her mental condition. He noted that the appellant told him that she had attempted suicide by stabbing herself. In these circumstances, Dr Holwill was of the opinion that the appellant should be hospitalised for more intensive treatment of her depression. However, it appears that this was not done as the appellant's husband would not permit it. Dr Holwill concluded in his initial report that the appellant:

... presents with a history of developing chronic pain affecting the neck, shoulder girdle, arms and hands, and the lower back with radiation to the legs, in association with her work as a cleaner. The most significant pain and loss of sensation occurs in the right arm and hand. Investigations to date have shown mild degeneration in the lumbar spine only.

Ms. Sejranovic is significantly incapacitated by her pain and has been unable to work for over two years.

In this setting, she has developed a severe depressive illness. That has arisen as a result of the effects of chronic pain on mood, the stress of daily aggravation of pain and the physical injuries sustained and their functional sequelae. The Major Depression has been associated with episodic auditory hallucinations, which are most likely attributable to the development of an Affective Psychosis, as no other psychotic phenomena have been elicited.

Ms. Sejranovic remains significantly incapacitated and seriously depressed. She is totally unfit for any form of work, and requires inpatient psychiatric care at present.

In my opinion, her employment has been a significant contributing factor to the development of her physical and psychiatric conditions.[9]

88 Dr Holwill next provided a report in September 2005. In that report, Dr Holwill referred to the fact that, following referral of her case to the Medical Panel, the appellant had lost funding for treatment by the clinical psychologist, Ms Batchelor. Apparently, the appellant had found this treatment very beneficial. Dr Holwill noted that the appellant complained of worsening pain in the right hand and arm, and that she continued to be treated by Dr Rose. Dr Holwill recorded that the appellant was suffering increasing psychological symptoms and that he had increased her anti-depressant and anti-psychotic medication as a consequence.

89 Dr Holwill concluded in his September 2005 report that, as a result of her pain arising from injuries which he accepted arose from the appellant's employment, and the worsening of that pain particularly in the right arm, that the appellant 'developed a steadily worsening major depression' and that it was 'unlikely that there will be any significant improvement in her physical or psychiatric condition in the foreseeable future'.

90 Dr Holwill provided a further report in May 2007. He noted that it had been arranged for the appellant to continue seeing Ms Batchelor, albeit on a reduced basis. Further, Dr Holwill noted that the appellant had continued to take large doses of medication, including anti-depressants, anti-psychotic drugs, sleeping tablets and strong pain killers. The appellant continued to complain of increasing pain in her right arm. Further, she continued to complain of pain in the lower back and legs.

91 Dr Holwill concluded at this time that the medication and psychotherapy was having some positive effect upon the appellant's condition. Dr Holwill concluded in his May 2007 report that:

With that combined treatment there has been slow but progressive improvement in her condition, and psychotic symptoms have been in abeyance for over a year now. She remains mildly to at times moderately depressed. She is easily stressed, and even minor day to day stresses produce a marked deterioration in her mental state temporarily.

Her marriage has been greatly strained by her altered mental state, but with cognitive therapy with Ms Batchelor, there appears to have been some persisting improvement in that area, and it is hoped that in the near future her husband will act as her daily carer.

I continue to regard her physical and psychiatric symptoms as being attributable to her work place injury alone.

Ms Sejranovic remains totally incapacitated for her pre-injury duties and any other form of "normal' employment which she might have been suited for. Prognostically she will remain subject to depressive illness whilst she continues to suffer from chronic pain and incapacity. Overall it is unlikely there will be any significant improvement in her mental or physical presentation.[10]

92 Dr Holwill provided a final report in September 2007, after having been informed about the content of video surveillance tapes which depict the appellant socialising. Dr Holwill did not view the video evidence as he did not have access to the necessary technology. Notwithstanding, Dr Holwill expressed the following opinion based on an acceptance that the video evidence depicted the appellant socialising without apparent physical or mental discomfort:

This would not alter my psychiatric diagnosis or opinion. The diagnosis was made on the basis of her mental state at the times she presented to me. My conclusions regarding aetiology would not alter either. In recent months, there has been some periods of relative improvement in her psychiatric condition, and there has been occasions when she presented to me in a happier state of mind and was even able to smile or laugh appropriately. Unfortunately, this improvement has not been sustained, and she does fluctuate a great deal in her mental state.

She will continue to attend me long term.[11]

93 As appears above, the appellant saw a number of treating psychologists. The psychologists' reports add little to the psychiatric evidence and it is unnecessary to consider them in detail. Mr Robert Postlethwaite saw the appellant 11 times during 2002. He gave a detailed report in which he concluded that the appellant suffered from a chronic pain disorder associated with psychological factors and a major depressive disorder. He did not consider that the appellant was feigning her physical symptoms or was in any way dishonest. He thought that her prognosis was poor when she ceased to attend him for treatment.

94 Ms Fiona Batchelor provided intensive psychotherapy to the appellant until funding became an issue, and subsequently provided less frequent treatment. She provided only a brief written report which did not contain any detailed diagnosis. She recorded that on 1 February 2007 the appellant presented in a depressed and tearful state, reporting low levels of normal functioning, feelings of hopelessness and both suicidal and homicidal thoughts.

95 The appellant was examined by a large number of doctors and psychiatrists for medico-legal purposes.

96 The worker's compensation insurer initially had the appellant assessed by an occupational physician, with a view to the appellant returning to work at the earliest appropriate time. Dr Mary Wyatt reviewed the appellant for this purpose in the period March 2001 to November 2002. In summary, Dr Wyatt was of the view that the appellant's physical symptoms did not prevent her from returning to work on modified duties, but that the appellant obviously suffered from mental problems arising from her symptoms and her own perception as to the severity of her pain. The principal physical symptom of which the appellant complained to Dr Wyatt was pain and neurological symptoms in her right arm. She also complained of continuing pain in her neck, back and legs. Dr Wyatt commented that the appellant had no muscle wasting in her right arm or hands and that her demonstrated grip strength was inconsistent with her ability to drive an automatic car with power steering. In Dr Wyatt's view, the appellant's physical symptoms required only simple analgesics and maintenance of physical activity. The mental response of the appellant to her claimed symptoms was a matter outside Dr Wyatt's experience.

97 The appellant was examined in late 2001 by Mr Michael Troy, a surgeon, on two occasions. At the initial examination on 27 November 2001, the appellant told Mr Troy that she had been involved in the 1994 collision. She told him that she had no serious injury arising from the collision and that she kept working through at this time.

98 Reading Mr Troy's two reports as a whole, it is evident that he thought the appellant was feigning some of her symptoms. He noted that the appellant moved her right shoulder and arm freely during the course of the interview in which she recounted her history. He also referred to the appellant spontaneously scratching the back of her neck with her right hand, retrieving information and medication from her handbag on numerous occasions and so on, without any hesitancy or obvious symptoms. When it came to the physical examination, however, Mr Troy noted that the appellant refused to move her neck, rotate her right shoulder, move her right elbow or right wrist as she claimed that it was too painful to do so. She refused to actively grasp using her right hand for the purposes of testing her strength in that hand, and made only a minor attempt to grasp with her left hand. Mr Troy noticed that there was no wasting of the muscles in the appellant's right hand and that it was red, warm and had no obvious deformity. In Mr Troy's view, any physical injury suffered by the appellant in the course of her employment had been overtaken by her psychological response to those injuries.

99 At a second examination in November 2002, the appellant told Mr Troy that she had recently developed pain in her back. Mr Troy noted in his second report that the appellant made no reference to back pain in her initial presentation in November 2001. He did not think that the appellant's claimed back pain had anything to do with her employment by the respondent.

100 The appellant was examined by an orthopaedic surgeon, John O'Brien, on 3 December 2002. The appellant told Mr O'Brien that her main concern was the significant neck and right arm pain which she was experiencing, and referred also to low back pain radiating to her hips and legs. Mr O'Brien observed that the appellant demonstrated 'quite good' cervical rotation during the entire examination but basically refused to move her right shoulder or any joints in her right arm. The appellant also resisted movement in her lumbar spine when requested, other than to a small degree. In Mr O'Brien's view, there were no objective signs of 'organic pathology' to explain the appellant's symptoms. In his opinion, the appellant's problem was a chronic pain syndrome. He accepted that this syndrome resulted from an injury suffered during the course of the appellant's employment. In his view, it was unlikely that the appellant's chronic pain syndrome would respond to any treatment, that the appellant's prognosis was extremely poor and that she was totally disabled from continuing to work. He recommended pain management and ongoing psychiatric care.

101 The appellant was examined at the request of the worker's compensation insurer by a rheumatologist, Dr Tony Kostos, in July 2003. Dr Kostos took a history from the appellant and examined her. In his opinion, the appellant had no physical injury at that time and was 'clearly trying to exaggerate her disability and make herself out to be more disabled than she actually is.' In his opinion, the appellant needed to continue with psychological and psychiatric treatment.

102 The appellant was examined by Mr Daryl Nye, a neurosurgeon, in January 2001, July 2003, May 2006 and January 2007. In his first report, relating to the January 2001 examination, Mr Nye concluded that the appellant had probably developed a mild right ulnar neuropathy as a result of her employment and that this mild injury had become complicated by the development of a 'profound psychological reaction ... in a prone individual.' At that time, he considered that the appellant was totally incapacitated from work as a consequence of her psychological state.

103 Mr Nye re-examined the appellant on 23 July 2003. He found no objective evidence of a persisting organic cause for the appellant's symptoms. Whilst not directly stating that the appellant was feigning her symptoms, he made the following comments:

During the interview the [appellant] was noted to hold the right upper limb in a somewhat protected manner, however the right hand was used normally for purposes of sorting papers, and also the limb was employed normally for support when getting onto the examination couch.

104 Mr Nye concluded that the appellant's condition remained that of a secondary mental response to a mild injury suffered during the course of her employment, that the appellant remained unfit for work and that her prognosis was extremely poor.

105 Mr Nye re-examined the appellant in May 2006 and January 2007. Nothing he was told or observed during the course of these examinations caused him to alter his previously expressed views. In his 2006 report, Mr Nye summed up his opinion:

Following my re-examination of the [appellant] I came to conclusions similar to those previously drawn. It has been noted previously that at some stage this individual may have developed a mild right ulnar neuropathy, there is no evidence to suggest that this condition endures. The subject has developed a chronic and diffuse pain syndrome, and a significant psychological aspect to presentation has been previously identified, and no further comment can be made in this regard.

106 The appellant was examined by three psychiatrists at the request of the worker's compensation insurer.

107 Dr Barrie Kenny examined the appellant in November 2000. She complained of pain in her right shoulder blade, arm, elbow, wrist and fingers and emphasised the pain in the right wrist. She said that some pain in her left hand and arm had commenced because she was using her right arm sparingly. She referred also to some pain in her neck and lower back.

108 The appellant told Dr Kenny about the 1994 collision and her TAC claim. According to Dr Kenny, the appellant:

said she had a car accident not long after she came to Australia, suffered a whiplash injury, received some twelve thousand dollars settlement. She said she was not working at that time, but the problem got better and she started to work not long afterwards.

109 As to her psychological state, the appellant painted a gloomy picture. According to Dr Kenny:

She said she's miserable and cries all the time. She said she tried to kill herself toward the end of last month. She said when her husband and son were asleep she went out, ran away from home and was going to throw herself into the sea. However, her husband stopped her.

She said: "like this I am no good to anybody". She said she is very angry with her Manager for not giving her more help and she blames him for the problem that she's having.

110 Dr Kenny did not perceive that the appellant was misleading him. He stated expressly:

I have no reason to doubt the lady's history and I accept that she was attempting to give a good account of herself.

111 Dr Kenny was of the view that the appellant's fitness for work depended upon her physical, not psychiatric, state. Dr Kenny concluded that the appellant's psychiatric symptoms were secondary to her physical symptoms, that it was her physical symptoms which prevented her from continuing to work as a cleaner but that her psychiatric status would likely inhibit her physical rehabilitation.

112 Dr Dush Shan examined the appellant on three occasions, in December 2001, May 2003 and May 2006. He provided four reports. In summary, Dr Shan was of the view that the appellant was exaggerating her symptoms with 'considerable emotional embellishment'. He concluded in his first report that the appellant:

shows evidence of a reactive depression that is significantly contributed to by her natural pre-morbid personality together with grievances with the employer. This condition is not significantly contributed to by employment.

113 In his second report, Dr Shan noted that the appellant complained to him about the conduct of the previous examination. Dr Shan maintained his opinion that the appellant was exaggerating her symptoms by exhibiting 'gross illness behaviour'. In Dr Shan's view, persistent questioning revealed that the appellant was capable of performing more daily tasks than she was initially prepared to admit to, such as attending the supermarket and driving on a regular basis. In Dr Shan's opinion, the appellant:

consciously engages in illness behaviour during medical examinations in order to project an exaggerated impression of her disability. In consequence, it would be necessary for Medical Examiners to rely upon objective evidence to form their opinions.

I have read enclosed reports by Dr. John O'Brien and Mr. Michael Troy. While there are comments by the Examiners about psychological aspects, it was not clear to me whether the opinion is that the patient does have a physical injury presently. I believe it would be useful to obtain a clear statement in that regard from the appropriate Medical Specialist.

My own opinion is unchanged. The patient shows evidence of a mild Reactive Depression, in which her personality and her grievances with the employer are the significant and material contributing factors.

Due to the strong personality component, conventional treatment such as antidepressants and psychological counselling, have not led to any improvement being reported by the patient. Also typical for such situations are the inconsistencies between the reported level of functioning and the actual level of functioning.[12]

114 In his third report, relating to his examination of the appellant in May 2006, Dr Shan maintained his opinion. He gained the impression that the appellant was hostile to him, and that she may have had access to his previous reports. He stated that the appellant 'displayed a tendency to be evasive and obstructive' during the course of the examination.

115 Dr Shan provided one further report. He was asked to express an opinion as to whether 'normal daily behaviour including normal interaction with friends and family' is consistent with a person reporting several attempts at suicide and harm to family members. Dr Shan's opinion was that normal daily behaviour can be consistent with a person reporting several attempts at suicide and harm to family members. In his opinion, normal daily behaviour (such as that depicted in video surveillance of the appellant) could be consistent with a person reporting several suicide attempts and harm towards others if that behaviour is indicative of an adverse reaction to particular developments rather than the presence of a severe underlying psychiatric illness. In this case, the appellant's case is that her psychiatric symptoms, including attempted suicide and harm to family members, are part of her adverse reaction to physical symptoms resulting from a work injury.

116 Finally, the appellant was examined on behalf of the worker's compensation insurer by another psychiatrist, Dr Alan Jager, in August 2006. Dr Jager was provided with many reports prepared by other medical professionals. He described the appellant as presenting in 'a hunched posture and a down cast gaze. She made no eye contact. She was sobbing for the entire interview and appeared sad, distressed and unreactive.'

117 Dr Jager concluded that the appellant suffered from 'a severe disturbance of mood and personality with psychotic features.' He made a likely diagnosis of major depressive disorder with psychotic features and unspecified personality disorder. He was not prepared to diagnose chronic pain disorder or syndrome because he 'could not be confident that the claimant was not feigning her reported symptoms.' In expressing this doubt about the appellant's honesty in reporting her symptoms, Dr Jager was obviously influenced by a report which described video surveillance of the appellant.

118 The appellant was examined at the request of her solicitors by an orthopaedic surgeon, Mr Michael Khan, in April 2007. Mr Khan provided a report describing the appellant as an unhappy woman who walked into his rooms protecting her right arm with the elbow flexed and tucked into the side of her body. He took a detailed history from her. Relevantly, the appellant told him that she had continuous pain in her right arm and hand, which felt weak and painful. She told him that she could not use her right hand in any strenuous or repetitive way. She stated that she 'even has to use toilet paper with her left hand due to the pain in her right arm' and that her husband needs to apply soap in the shower. Otherwise, she stated that she could attend to her daily living activities, although her husband did the majority of the household work and cooking. She complained also of pain in her neck and back, and disturbed sleep.

119 On examination, Mr Khan could detect no evidence of any muscular wasting or neurological deficit in the appellant's arms or legs. He commented upon her weak right hand grip.

120 Mr Khan diagnosed chronic pain syndrome associated with soft tissue injury to her right shoulder and arm. In his opinion, the injuries to the appellant's right shoulder and arm were consistent with having been caused during her employment and her chronic pain syndrome was consistent with a mental response to those injuries.

121 The appellant was examined by three psychiatrists at the request of her solicitors for medico-legal purposes.

122 Dr Epstein examined the appellant in May 2005 and March 2007. In May 2005, Dr Epstein concluded that the appellant was suffering from a paranoid schizophrenic illness and chronic pain disorder. He concluded:

The combination of the physical and psychiatric effects of her injury has led on to a chronic Adjustment Disorder with depressed mood of some severity with suicidal behaviour and ideation.

Her current work capacity is nil and in my view she will never be able to return to work in any capacity. Her condition was not present at or prior to 19th October 1999 and only occurred after that date. She has suffered a severe long-term mental or behavioural disturbance or disorder. She does require long-term psychiatric treatment and may also require hospitalisation.

The question is the relationship between her chronic paranoid schizophrenic illness and her work injury. In my view there is a connection as this was a woman who had functioned well with no prodromal symptoms and her condition occurred within months of her eventually ceasing work and has persisted since then, despite intensive psychiatric treatment.

123 In his second report in March 2007, Dr Epstein expressed the following opinions:

On this occasion I was more persuaded that she has a Major Depressive Disorder with psychotic features.

Her psychiatric state alone prevents her returning to work. She is deeply distressed, tearful, irritable, argumentative, and could not cope in any type of work situation and certainly could not manage any form of pressure. She continues to have symptoms of a chronic Pain Disorder. Her complaints of pain are widespread and have not responded to any type of conservative treatment.

The opinion of Dr Jager in effect is that if she was genuine she has a Major Depressive Disorder with psychotic features but he considered that her symptoms may well be feigned. He noted surveillance in March 2005 (which I have not seen) in which she appeared to be moving normally. He also made reference to the reports of Dr Kostos and Mr Nye who had questions about her physical symptoms and Dr Kostos stated "she was clearly trying to exaggerate her disability and make herself out to be more disabled than she actually is".

These perceptions may well be correct, however she does give a consistent history to her treating doctors over a number of years and from their reports and her own report her quality of life has diminished very markedly and she lives a very limited lifestyle.

Although it is possible that she is feigning it seems more probable than not that she is significantly disabled.

124 In these opinions, Dr Epstein referred to video surveillance referred to by Dr Jager, but which Dr Epstein had not seen. Subsequently, just prior to the hearing of her serious injury application in the County Court, the appellant's solicitors asked Dr Epstein to view the video evidence and provide a supplementary opinion. Dr Epstein was also shown a copy of an affidavit sworn by the appellant.

125 In his supplementary report, Dr Epstein gave a brief summary of the appellant's conduct as depicted on the video tapes viewed by him. Dr Epstein stated that the video surveillance depicted the appellant displaying limited use of her right hand, using her left hand preferentially and on one occasion appearing to have some back discomfort. Otherwise, in Dr Epstein's opinion, the video evidence appeared to show the appellant moving freely and without emotional distress. These observations caused Dr Epstein to express the following opinion:

The video surveillance provides a very different picture of her activities to that given to me and provided in her Affidavit. It is clear that she has a much greater capacity for socialising than she has indicated. The video surveillance also seems to indicate that she could stay in supermarkets without distress, and could attend a sporting event for almost four hours without any sign of distress.

The video surveillance material does lead me to have concerns about her reported levels of dysfunction. The impression gained is that she has a much greater capacity for relating to others, socialising, interacting, and carrying on with the usual activities of daily living than she has indicated in her Affidavit or as she indicated to me.

I have significant concerns about her credibility and as a result, since my opinion is based on being provided with credible information, I am uncertain now as to her diagnosis and to the cause of her symptoms. All that can be said from the video surveillance is that she appears to have some limitation of use of her right arm and may well have some intermittent back trouble.

126 Dr Epstein provided a further supplementary report later in August 2007. For the purposes of this supplementary report, he was provided with copies of the affidavits sworn by the appellant's husband and son as to her psychological condition. In particular, he noted that the husband and son had deposed to incidents where the appellant had threatened to injure herself with a knife, had attacked her husband with a knife and had been rescued by her husband when she attempted to jump off a bridge. In these circumstances, Dr Epstein expressed the following opinion:

These Affidavits confirm the information that had been provided to me from documentation and from the two clinical examinations on 19 May 2005 and 22 March 2007. I am unable to relate the content of these Affidavits to the results of the surveillance. If one ignores the results of the surveillance this is clearly a very disturbed woman who is mentally unstable and apparently suicidal and homicidal. The surveillance, limited though it was, suggests a person who was functioning, albeit on a temporary basis, in a much more normal way.

It appears unlikely that both her son and husband would sign Affidavits that are demonstrably false. Accordingly I am left with the impression that much of what they say is correct but there are times when her behaviour is more normal and she is able to function effectively in social situations. The degree to which her disturbed behaviour predominates is unclear.[13]

127 The appellant was also examined by Dr Nigel Strauss, consultant and occupational psychiatrist, in February 2007 at the request of her solicitors. Dr Strauss described the appellant as:

a depressed tearful woman who maintained no eye contact. She was pre-occupied with her physical and psychological symptoms and seemed to lack insight. Thinking was negative. There was a theatrical component to her presentation.

128 Dr Strauss was provided with the medical reports then available from a number of sources, including Dr Perera, Dr Holwill, Mr Postlethwaite, Dr Shan and Dr Jager. He was also referred to a report concerning the video surveillance of the appellant. In these circumstances, Dr Strauss expressed the opinion that the appellant was suffering from a major depression and a chronic pain disorder due to employment from 1999 onwards. In his opinion, the appellant would never work again due to her serious psychiatric condition. Dr Strauss noted that his conclusions depended upon the veracity of the appellant. He said that he had no real evidence to suggest that the appellant was being untruthful or was more active than she was prepared to admit.

129 Finally, the appellant was examined at the request of her solicitors by Dr Albert Kaplan, psychiatrist, on 21 March 2007. Dr Kaplan provided a comprehensive report recording the appellant's history and expressing his conclusions. Of particular note are the following statements made by the appellant to Dr Kaplan, as recorded by Dr Kaplan in his report:

Mrs. Sejranovic stated that she feels hopeless about her situation and she commented, "I feel worthless. My children left me. I fight with my husband all the time. Because of that work I lost my husband; my children; my happiness. I'm sitting at home crying. I feel like a dead being walking." She has lost interest and motivation, has lost confidence and has, on several occasions, attempted suicide. She commented, "Few times I tried to kill my children and my husband ... I went with them with a knife. They took the knife away from me." She has, on several occasions, taken an overdose of medication. She feels ashamed about her situation. On one occasion she walked onto the road in an attempt to kill herself, and on another occasion she tried to make her way to a bridge for the same reason and was stopped by her family.

Mrs. Sejranovic stated that in moments of anger, on a number of occasions, she attempted to stab her sons and her husband and several months ago she stabbed him on his arm. She stated that her husband has never been violent towards her.

At a glance

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Before

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Judgment (281 paragraphs)

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Legislation Cited (2)

Cases Cited (2)