Thomson v Victorian WorkCover Authority [2025] VCC 245

1. In order to understand the issues in dispute, it is necessary to set out the procedural history of the proceeding.
2. The plaintiff issued the proceedings on 8 October 2020.
3. On 10 June 2021, a judge of this Court referred a number of medical questions to the Medical Panel. These were answered by the Medical Panel on 31 August 2021.[1]
4. The Court adopted and applied the Certificate of Opinion of the Medical Panel dated 31 August 2021 in accordance with s313(4) of the Act.
5. On 11 August 2023, as a result of the Medical Panel's Opinion that the plaintiff had a capacity for suitable employment, a judge of this Court dismissed the plaintiff's application in respect of pecuniary loss and listed the application in respect to pain and suffering for hearing.

1. The legal principles in respect of the question of "severe" are well known and were not in issue.
2. At the commencement of proceedings, the parties agreed that there were three issues in dispute:

(a) The legal principles relating to the impact of the Medical Panel's Opinion;

(b) Whether there had been any deterioration to the plaintiff's mental health condition since the Medical Panel Opinion dated 31 August 2021; and

(c) Whether the impairment consequences of the plaintiff's psychiatric injury were "severe".

1. The following facts are not in dispute.
2. The plaintiff is forty-six years old. He lives with his partner, Rebecca, and their two children, aged twelve and fourteen.
3. The plaintiff commenced employment with the employer on 20 March 2012 as a Network and Systems Manager. The role required him to manage the Information Technology ("IT") systems and processes of the Melbourne office, as well as overseeing external contractors in different countries. He alleges he had to be available to contractors and staff in different time zones and often worked long hours.

1. The plaintiff alleges that shortly after starting work with the employer in 2012, he was required to be available to attend meetings and resolve technological difficulties during the day and the night. He said it was not unusual for him to be working at 4.30am.[2]
2. In September 2012, the employer employed an IT worker in its office in the United Kingdom whom the plaintiff alleges did not have the necessary skills to perform the role. The plaintiff says this increased the overtime he had to perform in order to effectively "pick up the slack".[3]
3. The plaintiff says that he became increasingly overwhelmed by the lack of resources and the hours he was working, and his mental health began to decline. He began drinking alcohol to excess and started taking narcotics to help him wake up each morning.[4]
4. In approximately April or May 2014, he commenced seeing Ms Mellington, a psychologist.
5. In May 2014, he went on an overseas work trip for two weeks. He worked long hours on this trip and returned home exhausted and overwhelmed.
6. Upon his return, he attended a General Practitioner ("GP") who diagnosed him with depression and commenced him on medication.[5]
7. His mental health continued to decline, and assistance was sought from the Crisis Assessment and Treatment Team ("CATT").
8. The plaintiff said that as he became "more actively suicidal", he was admitted to the Psychiatric Unit at The Alfred Hospital. The plaintiff was an inpatient from 18 to 24 June 2014.
9. Upon release from The Alfred Hospital, he was referred to the Victoria Clinic. He was an inpatient at the Victoria Clinic under the care of Dr Richard Baker, psychiatrist. He was an inpatient from 24 June to 22 July 2014 and from 29 July until 6 November 2014.
10. The plaintiff returned to work in November 2014. He says he was required to work significant overtime.[6]
11. In July 2015, he went on another overseas work trip. The trip was meant to be for two weeks but was extended to five weeks.[7] He said he had a few days off during this trip and that he again returned to Australia in August 2015 feeling exhausted and suicidal. He further engaged with the CATT around this time.
12. In approximately September 2015, he came under the care of Dr Larry Hermann, psychiatrist.
13. He continued working long hours. He ceased work in September 2015, and submitted a WorkCover claim in November 2015. He has not returned to work.
14. He was re-admitted to the Victoria Clinic as an inpatient from 7 March to 1 April 2016. Whilst there, he underwent transcranial magnetic stimulation under the care of Professor Paul Fitzgerald, psychiatrist.

1. The plaintiff had mental health issues prior to commencing with the employer. The plaintiff's evidence on this point was contradictory. At times, the plaintiff denied any pre-existing mental health concerns. At other times, he disclosed pre-existing mental health issues.
2. In the plaintiff's affidavit affirmed 5 June 2020 ("first affidavit"), he deposed that he had experienced depression in 2007 and attended a psychologist. He was prescribed Lovan but could not recall taking the medication.[8] He says he worked through this and got on with things.
3. When discussing these earlier instances of depression, the plaintiff asserted that they were minor compared to the depression caused by his employment with the employer.
4. In contrast, the medical material tendered to the Court referred to longstanding and serious substance abuse issues, anxiety and depression. This is discussed in further detail later in these reasons.
5. The plaintiff has suffered from a range of other unrelated health conditions which include:
   • sleep apnoea, which he manages with a C-PAP machine;
   • gastric sleeve surgery (in 2017) to assist with weightloss;[9]
   • pericarditis - with neuropathic pain around his chest, treated with ketamine infusions;
   • rheumatoid arthritis, treated with injections and Methotrexate;
   • Norspan Transdermal Patches for pain management
   • gastrointestinal problems (from 2020) which have caused a variety of symptoms including diarrhea, nausea, vomiting necessitating hospitalisation and the use of a nasogastric feeding tube;[10]
   • a perianal fistula.
6. The plaintiff could not recall exactly how many times he had been hospitalised for gastrointestinal issues but suggested it was not more than five times.[11] He continues to attend The Alfred Functional Gut Clinic for review.

Legal principles regarding Medical Panel Opinions

1. Section 313(4) of the Act provides:

"(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel -

(a) Is to be adopted and applied by any court, body or person; and

(b) must be accepted as final and conclusive by any court, body or person -

irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

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

"Question 1: What is the nature of the medical condition of the plaintiff's mind?

Answer: In the opinion of the Panel, the plaintiff is suffering from Major Depressive Disorder in substantial remission, and abnormal personality traits.

Question 2: Is the plaintiff's current 'no current work capacity' permanent (i.e., likely to last for during or through the foreseeable future)?

Answer: In the opinion of the Panel, the plaintiff's current 'no current work capacity' is not permanent.

Question 3: If 'no' to question 2, what employment will or will not constitute suitable employment for the plaintiff and if so for how many hours per week?

Answer: In the opinion of the Panel, employment as an ICT Customer Support Officer or a Network Administrator, after suitable training, and with a graduated return to full time hours (38 hours per week), constitutes suitable employment for the plaintiff."

1. There was no dispute that the Court is bound by the Medical Panel decision and that the Court must adopt the Medical Panel Opinion as binding and conclusive, that, as at 31 August 2021, the plaintiff was suffering from Major Depressive Disorder in substantial remission.
2. I have considered the following decisions of this Court which deal with the impact of Medical Panel opinions: Said v Smart Group Management Pty Ltd,[12] Durrant v 101 Warehousing Pty Ltd,[13] Kuluk v Victorian WorkCover Authority[14] and Osborne v Victorian WorkCover Authority.[15]
3. The cases make it clear that there is no ability to reconsider any issue foreclosed by the Medical Panel Opinion.
4. Said was a decision of Judge Wischusen delivered on 4 June 2021. The plaintiff sought leave to recover pain and suffering damages in respect of psychiatric consequences which allegedly flowed from physical injuries sustained in a workplace fall. The Medical Panel determined that the plaintiff had "an adjustment disorder with anxiety on the background of a previous history of acting out behaviour, mood instability; and a heavy substance use disorder which is now in remission". The Medical Panel did not provide an opinion as to the gravity of the Adjustment Disorder with Anxiety.
5. In Said,[16] the parties were in dispute as to whether subsequent events, symptoms, treatment and consequences bore upon the Court when giving effect to the obligation under s313(4) to adopt and apply the Medical Panel's Opinion.
6. Judge Wischusen said:

"... In my view, a construction of the words 'accepted as final and conclusive' [as found in s314)4))b)] which allows a court to reconsider an issue foreclosed by a Panel's opinion is contrary to the plain meaning of those words and the history of the provision."[17]

"In my view, the section requires the Opinion of the Panel on a medical question to be adopted and applied by me, to be accepted as final and conclusive by me, and these obligations operate irrespective of when the medical question was referred. It follows that events occurring since, or changes in the plaintiff's symptoms since the Panel gave its opinion, are irrelevant, except where they bear upon the assessment of the 'severity' of the only condition the Panel found to be compensable -'an Adjustment Disorder with Anxiety'."[18]

1. This analysis was accepted and applied by Judge Purcell in Kuluk.[19] In that case, the Medical Panel determined that the plaintiff had a mild Adjustment Disorder with Depressed and Anxious Mood. The Medical Panel determined that the plaintiff was able to perform the full duties and hours of work of his pre-injury employment.
2. The Court noted that the Medical Panel's findings would lead to the conclusion that the plaintiff's pain and suffering symptoms did not meet the serious injury test. Judge Purcell noted that if the Medical Panel Opinion was adopted as binding and conclusive as at 14 December 2019, then the proceeding for leave to issue common law proceedings for pain and suffering damages would be dismissed. It was in this context that the question was whether the plaintiff could rely upon an alteration in circumstances since the Medical Panel Opinion, and argue that his condition was "severe" at the time of the hearing.[20] Ultimately, Judge Purcell found that the admissible evidence did not elevate the plaintiff's psychiatric condition and impairment beyond that found by the Medical Panel.
3. In Durrant,[21] the plaintiff sought leave to issue common law proceedings for psychiatric injuries which were alleged to have been materially contributed to by an injury to her right forearm.
4. In Durrant, the Medical Panel determined that the plaintiff had a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood which was likely to be permanent. It was the plaintiff's case that once the diagnosis of Adjustment Disorder had been made, any symptoms which were "independent of the diagnosis" could be brought into account in the assessment of severity. The plaintiff argued that as the Medical Panel had determined that the plaintiff suffered from a Regional Pain Syndrome, then any psychiatrically-driven pain could be taken into account in the Serious Injury Application. Judge Wischusen rejected the argument. He said he was bound by the Medical Panel Opinion that the plaintiff had an Adjustment Disorder. Further, he stated:

"... I do not accept the plaintiff's submission, that so long as some mental disorder is diagnosed, all of the reported symptoms, whether physical or emotional, should be regarded as resulting form it, and brought into account in the assessment of severity. To do so would be to fail to adopt and apply the opinion given on the medical questions that were referred to the Panel in this proceeding."[22]

1. In Osborne,[23] Judge Brookes decided that he was entitled to consider whether there had been any change in the plaintiff's condition after the Medical Panel's decision.
2. I am bound to accept the Medical Panel's Opinion that the plaintiff was suffering from Major Depressive Disorder "in substantial remission" and abnormal personality traits. The Medical Panel provided a diagnosis but did not explain what it meant by the words "in substantial remission".
3. In summary, a review of the cases establishes that if there is evidence of changes or a deterioration in a plaintiff's condition since the Medical Panel gave its opinion, then such changes can be taken into account where they bear upon the assessment of the "severity" of the condition found by the Medical Panel to be compensable.
4. The Court has to determine whether the plaintiff has a "permanent severe mental or permanent severe behavioural disturbance or disorder" as set out in s325(1) of the Act. Further, the Court has to determine whether the plaintiff satisfies s325(2)(b) and (d) - that is, can the impairment consequences be fairly described as "more than serious to the extent of being severe", and are the impairment consequences severe when judged in comparison with other cases within the range of possible impairment or mental or behavioural disturbances or disorders?
5. The Court may consider the Medial Panel's Reasons for Opinion, as distinct from the Certificate of Opinion of the Medical Panel, as one of the pieces of evidence when looking at the whole of the evidence.
6. The Court has to determine on the whole of the evidence whether the plaintiff meets the test.

1. The Medical Panel considered numerous documents including:
   • the plaintiff's first affidavit of 5 June 2020;[24]
   • the reports of Dr Larry Hermann, psychiatrist, dated 15 October 2015, 3 February 2016, 10 November 2016, 5 December 2016 and 21 January 2021;[25]
   • the reports of Dr David Bornstein, GP, dated 1 February 2015, 3 February 2016 and 9 January 2017;[26]
   • the reports of Dr Nicholas Ingram, consultant psychiatrist, dated 4 February 2021 and 13 May 2021;[27]
   • the report of Dr David Weissman, psychiatrist, dated to August 2016;[28]
   • the report of Ms Megan Mellington, psychologist, dated 8 February 2016;[29]
   • the letter of Dr Horatio Selagea, psychiatric registrar, dated 28 July 2014;[30]
   • the report of Dr Wendy Triggs, consultant psychiatrist, dated 16 December 2015;[31]
   • the reports of Dr Natalie Krapivensky, consultant psychiatrist, dated 19 December 2016, 12 January 2017 and 30 May 2021;[32]
   • the reports of Associate Professor Peter Doherty, consultant psychiatrist, dated 20 September 2020 and 8 February 2021.[33]

1. For the purpose of this case, the Court may have regard to the following material which postdates the Medical Panel's decision.
   • The plaintiff's second affidavit affirmed on 14 October 2024 ("second affidavit")[34]
   • An affidavit of Rebecca Thomson, the partner, affirmed 14 October 2024[35]
   • An affidavit of Maria Jockel, mother of Rebecca Thomson, affirmed 24 October 2024[36]
   • An affidavit of Daniel Lewis, a friend of the plaintiff, affirmed 11 November 2024[37]
   • Reports of Dr Larry Herrmann dated 16 October 2023 and 11 October 2024[38]
   • Reports of Dr Amanda Scott, GP, dated 26 October 2023 and 17 July 2024[39]
   • Report of Dr Nicholas Ingram dated 22 August 2024.[40]

The parties' submissions regarding the Medical Panel Opinion

1. The plaintiff's Counsel submitted that the plaintiff's mental health condition had worsened since the time of the Medical Panel Opinion. The plaintiff also submitted that the asserted deterioration could be relied upon by the Court in considering the whether the plaintiff met the "severe" test at the time of the hearing.
2. It was submitted that the plaintiff's second affidavit referred to consequences upon his familial relationships, enjoyment of various hobbies, socialisation, and ability to travel or go on holidays due to the employment-related psychiatric injury.
3. Counsel for the plaintiff submitted the second affidavit "flesh[ed] out" these consequences and recorded his depression and anxiety was "constant". Counsel for the plaintiff submitted this was evidence of a worsening of his condition and was therefore a change which could be considered by the Court.
4. The defendant submitted there had been no change to the plaintiff's condition since the Medical Panel Opinion, and the Court's power to consider any changed circumstances was not enlivened.[41]
5. The defendant submitted that Dr Hermann's reports, including his diagnosis and comments, were considered by the Medical Panel in 2021. Dr Hermann maintained his opinion in his October 2024 report.[42]
6. The defendant also submitted if there had been a change in the plaintiff's condition since 2021, it was either a worsening of his condition due to the unrelated gastric issues or an improvement. In support of this, the defendant referred to the opinion of Dr Scott, GP, who reported the plaintiff's gastric problems were "severe" and had affected his daily living. The defendant particularly highlighted that in Dr Scott's 2024 report, she recorded the plaintiff was reliant upon nasogastric feeding, and that his mood had worsened as a result of his gastrointestinal issues.
7. In terms of an improvement in his condition, the defendant referred to the comments in Dr Hermann's latest report that whilst the prognosis remained poor, there had been stabilisation of his condition after a nine-year period. The defendant therefore maintained any change in his condition was in fact for the better.[43]
8. The defendant also submitted that at his most recent examination by Dr Ingram in August 2024, the plaintiff had specifically reported that there had been little change in his circumstances since the examination in February 2021.[44]
9. The defendant conceded, however, that Dr Ingram's report suggested that whilst the depression had not got worse, he was probably more anxious since the last assessment and had become more household bound and obsessional. The defendant submitted this was as high as it went.[45]
10. There had been no increase in the frequency of his attendances upon Dr Hermann or changes to his medication after August 2021 which would demonstrate a worsening of his condition.

1. The plaintiff gave evidence and was cross examined. He was the only witness who gave oral evidence.
2. The plaintiff adopted his two affidavits affirmed on 5 June 2020 and 14 October 2024.
3. His first affidavit set out the details of his treatment and allegations regarding work with the employer. The Medical Panel considered this affidavit.
4. The plaintiff said he ceased treatment with Dr Baker in late 2015, after concerns were raised about the amount of medication being prescribed.[46] He ceased attending Ms Mellington in mid 2016 when she went on sabbatical.[47]
5. The plaintiff was not taking medication as it made him worse, and he continued to attend Dr Hermann every week or two and saw his GP intermittently.[48]
6. He said that he had considered returning to work elsewhere after his termination from the employer but did not feel up to it.
7. In his first affidavit, he reported that he continued to -

"... feel depressed and extremely unstable. I am just not able to cope with much stress at all. Even very small things cause me to go to pieces. I get frequent panic attacks and chest tightness.

I have a very low mood everyday. I have low energy and feel tired all the time. There are many mornings when I do not want to get out of bed.

I am still suicidal often. These are just thoughts, not actions, but they distress me a lot. I try and talk to Rebecca or Dr Hermann when these thoughts come into my head."[49]

1. The plaintiff spends his days dropping off and picking up his children from school, attending medical appointments and carrying out whatever domestic tasks he can manage around the house to assist his partner, Rebecca. He otherwise gave evidence that he does not do much outside the house due to an obsession with home security.
2. The plaintiff said his mental state had put a great strain on his relationship with his partner, had greatly impacted upon his children and meant he effectively had no social life. He would join his family during the day on family holidays but would have to return to his home each night as he felt too anxious.
3. In his first affidavit, the plaintiff confirmed he had a certified assistance dog, provided by an organisation called "mindDog". In his second affidavit, he advised he still had his dog, but she was no longer certified as an assistance dog, as she had not been re-assessed.
4. In his second affidavit, the plaintiff said:

"My mental health symptoms have remained stable since affirming my previous affidavit. I have continued to struggle with feelings of depression and anxiety, all day, every day. My symptoms are constant.

In addition to the consequences that I outline in my previous affidavit, I wish to add the following elaboration and information.

Prior to sustaining psychological injuries while working with Movember, I worked full time. I enjoyed working. I had a career in IT infrastructure. I had a young family, and a partner. My work gave me job satisfaction.

I am very routine driven. If my routine changes, such as a kid being home sick, I am thrown for days. I take the kids to school, come home, do some chores and then pick the kids up. While I do chores, I am very slow at what I do. Something that should take half an hour, can take me hours. We have a cleaner and gardener, because I am unable to manage those things. I achieve much less around the house, than I used to because of my psychological condition.

My psychological injury has impacted on my future plans. At the time that I was injured, I was the primary bread winner. My partner was working but was hoping to be the primary carer of our children. Because of my debilitating injury and inability to work, my partner has since re-trained. She has completed a law degree, become an admitted lawyer and a partner in an immigration law firm.

As a consequence of my psychological injury, my partner has lost a functional partner.

I suffer from low mood and anxiety. I struggle to experience joy. Things that I used to enjoy such as listening to music, rarely bring me pleasure now.

My sleep is disturbed due to anxiety on a nightly basis. I find it hard to get back to sleep, and often walk around the house at night or watch television and fall asleep on the couch. Unrelated to this injury, I sleep with a CPAP machine.

My psychological injuries have impacted on my ability to enjoy my hobbies. In the years leading up to my breakdown in 2014:

1. I used to enjoy playing golf. I played golf from time to time. I played at least once a month at the drive in, and additionally at the golf course. I was not playing as often as I would have liked to, as we had young kids, but I intended to continue to play golf and increase my golf as the children got older. I no longer play golf.
2. I used to enjoy scuba diving from time to time. My partner's family has a holiday house in Portsea, and I used to scuba dive down there. I no longer scuba dive.
3. I used to go to gigs 1-2 times a month. I loved live music. I no longer go out to gigs.
4. I used to go out to dinner with my partner once a week. In addition, I went to restaurants and bars with friends on a regular basis. I rarely do this now.
5. I used to regularly visit my partner's family holiday house in Portsea. We used to go once a month at least. I enjoyed those trips. We no longer go down.

I used to spend more time with my children than I do now. It used to be quality time. I used to take them out on my own to do activities each Sunday. The children spend more time on technology than my partner would like now because of my psychological condition. I am rarely present emotionally. As outlined in my partner's affidavit, I have been going to the football with the children on the encouragement of my partner. I am anxious about leaving the house, anxious about being away from the house and get little enjoyment from this activity although I try and pretend I enjoy it for the children.

Because of my anxiety, I have struggled to leave the house. I do multiple checks of doors and windows before leaving. Our family has installed a security system in the hope of trying to reduce my anxieties.

My energy levels are affected by my condition. I am often exhausted by minimal tasks and commitments. I often retire to bed, in the early evening.

I no longer believe that I will be able to work. I generally enjoyed working (my experiences with Movember aside), and had job satisfaction from what I did. I was proud of my achievements.

I have poor concentration, and I struggle to focus.

I have poor hygiene. I used to take pride in my appearance, and I was proactive about my appearance and hygiene. I now tend to wear tracksuits and pyjamas all day, which are dirty and unwashed. I only get hair cuts, shave and take care of my general appearance if my partner pesters me."[50]

1. The plaintiff was cross-examined. Cross-examination focused on unrelated health conditions, prior drug use and whether there had been any change to his mental health condition since August 2021 when the Medical Panel provided its Opinion.
2. The plaintiff accepted he said in his second affidavit that his mental health symptoms had remained stable since his first affidavit. The plaintiff confirmed this was true and that his symptoms were no worse than they had been previously.[51]
3. The plaintiff said he had been prescribed dexamphetamines and may have taken Effexor previously. He was not currently taking any medication for his mental health and had not taken any medication for his mental health since 2016.[52]
4. It was suggested to the plaintiff that his gastrointestinal issues had been significant and that had been one of the reasons he had not worked in the past four years. The plaintiff disputed this.[53]
5. It was also put to the plaintiff that his report to the Medical Panel that he had ceased using cannabis and speed in his early twenties was not accurate. He was shown an email from him addressed to Ms Mellington dated 26 April 2014 which suggested he was still smoking cannabis at that time.[54] The plaintiff accepted the email was sent from his email address but said he had no specific recollection of sending the email.[55] He denied he used cannabis beyond his twenties.[56]
6. The plaintiff said he commenced using cocaine around the time the workplace issues started whilst he was working for the employer.[57]
7. In re-examination, he said when he was an inpatient, he took medication which stabilised him. This led to him being not actively suicidal and he was released from hospital. He said that he ceased taking medication on the advice of Dr Hermann.[58]
8. The plaintiff said that he found his weekly sessions with Dr Hermann beneficial. He said that when he felt suicidal or he was going backwards, the appointments with Dr Hermann were a "safe space" which meant he could minimise the burden placed on his family.[59]

1. The plaintiff relied upon three affidavits affirmed by Rebecca Thomson (his partner); Maria Jokel (his partner's mother) and Daniel Lewis (a family friend).
2. In an affidavit affirmed on 14 October 2024,[60] Ms Thomson confirmed that she met the plaintiff in 1995 when they were teenagers. They have been together since 1995, with the exception of a break between 1996 and 1998. They became engaged in 2000.
3. According to Ms Thomson, prior to employment with the employer, the plaintiff had experienced situational stress and emotional upset with short-lived symptoms.[61] She and the plaintiff had a full life with their children, often meeting up with friends, travelling and attending restaurants. The plaintiff regularly attended gigs and bars with his friends but had stopped all such activities. His current socialisation was limited to immediate family members. The plaintiff would retreat to his bedroom when friends or family visited.
4. She said their whole lives stopped in 2014 when the plaintiff was hospitalised and that, since then, he had been a different person who did not participate in life. He was pessimistic, glum and sad. She compared his mannerisms to the character of Eeyore. She observed that his anxiety was "overwhelming".[62]
5. Ms Thomson said that the plaintiff was hypervigilant regarding home security. On occasions after leaving home, he would worry that the front door was open, so the family would need to return home to check the door.
6. Family activities such as attending soccer games had been impacted and when the family attended such games, the plaintiff would spend time in the kids' lounge at the stadium which she described as a lower sensory space.[63]
7. Ms Thomson said the plaintiff had not travelled since his psychiatric injury, save for a family trip to Lakes Entrance. She now takes the children overseas without him.
8. She said the only reason the plaintiff is alive is because of their family. The plaintiff's condition had had a huge impact on their children, with her son being diagnosed with PTSD after the plaintiff was hospitalised.
9. Ms Jockel's affidavit was affirmed on 24 October 2024.[64] Ms Jockel lived with the plaintiff and her daughter from 2007 to 2011 whilst she was building a new home. She saw the plaintiff every day during this period and recalled he presented as a functional, normal young man who was sociable and regularly attended gigs with his friends.
10. Ms Jockel said everything changed after the plaintiff returned from a work trip in 2014.[65] She said that the plaintiff has been "a shadow of his former self".[66]
11. Ms Jockel has travelled to Bali, Fiji, Inverloch and Cobram with her daughter and her grandchildren without the plaintiff.
12. Ms Jokel visits the plaintiff's home every weekend. During these visits, the plaintiff was generally in bed or on the couch, and rarely spoke.
13. Mr Lewis is a friend of the plaintiff. In an affidavit affirmed on 4 November 2024, Mr Lewis said he has known the plaintiff since 2010. He bonded with the plaintiff over their shared interest in cooking, beer and music. Mr Lewis said they used to regularly host each other's families at their homes and attend music gigs together.
14. Mr Lewis said the plaintiff's mental health began to decline after he returned from a long overseas work trip. He said around this time, the plaintiff stopped visiting him and ceased answering his calls. Mr Lewis recalled visiting the plaintiff when he was hospitalised and says he was heavily medicated and "spacey".
15. Mr Lewis saw the plaintiff occasionally now, as the plaintiff declined any invitations to catch up. Mr Lewis said that when he visited the plaintiff's house with his partner, the plaintiff would say hello and then retreat to his room to be alone. He considered that the plaintiff had "lost his zest for life".[67]
16. The lay witnesses were not cross-examined. Their Affidavits are generally supportive of the plaintiff's account of his impairment consequences, and I accept the lay evidence.

1. Given that I am bound by the Medical Panel's determination, the only relevant medical opinions are those which postdated that decision. I have summarised some parts of the medical material which predate the Medical Panel decision in order to give context to these reasons.

1. The plaintiff tendered six reports prepared by Dr Hermann.[68] Dr Hermann has been the plaintiff's treating psychiatrist since September 2015. He sees the plaintiff for intensive weekly or fortnightly psychotherapy and emotional support.
2. The Medical Panel considered four of Dr Hermann's reports. The reports of 16 October 2021 and 11 October 2024 postdated the Medical Panel's decision.
3. In all reports, Dr Hermann recorded a history of alcohol and substance abuse which had ceased by the plaintiff's early twenties. Dr Hermann diagnosed the plaintiff with a Major Depressive Disorder, which he classes as severe with anxious distress. He opined that the psychiatric state was caused by his employment with the employer.
4. Dr Hermann recommended that the plaintiff cease all medication.[69]
5. In his first report dated 3 February 2016, Dr Hermann recorded that the plaintiff's suicidal ruminations had lessened; however, in subsequent reports, he reported that the plaintiff continued to report frequent suicidal ruminations.
6. In December 2016, he reported that whilst the plaintiff's mood remained depressed and anxious, there had been "a more recent improvement albeit limited".[70] He recorded the plaintiff felt prepared to return to his pre-injury work in a very controlled fashion, with low stress tasks and on reduced hours.
7. In January 2021, Dr Hermann confirmed the plaintiff was gaining some benefits from his assistance dog. It was said the dog had allowed him to leave the home for longer periods whilst on family outings.[71]
8. In January 2021, October 2021 and October 2024, Dr Hermann commented that the plaintiff was reporting a "more consistent level of depression, and no longer had pronounced peaks and troughs with associated angry outbursts".[72]
9. Dr Hermann noted that the plaintiff's family had become more attuned to his levels of impairment and functional limitations, and his mood states were more predictable."[73]
10. Throughout the period October 2021 to October 2024, Dr Hermann also confirmed the plaintiff was able to drop off and pick up his children from school and complete household chores but that it took him extended periods to do so, and he often forgot what chores were meant to be done.
11. Dr Hermann noted that the plaintiff was obsessed with home security, requiring him to check the doors and windows multiple times before leaving the house. Dr Hermann said installation of a home security system had not assisted with this behaviour, and the plaintiff was largely avoidant of leaving home.
12. In February 2016, Dr Hermann reported the vast majority of patients with depressive illnesses make good recoveries, and he expected the same for the plaintiff.
13. He modified and updated this opinion in December 2016, when he said that the plaintiff's prognosis was "unclear". The plaintiff's symptoms and levels of dysfunction had remained mostly unchanged over a two-and-a-half-year period which he opined was not a good indicator for the future.[74]
14. In January 2021, Dr Hermann further updated his opinion. He concluded that the plaintiff's prognosis was poor. He said that although there has been some degree of stabilisation, the plaintiff's low-level functioning and ongoing symptoms had persisted for an extended period of time.[75] He repeated these opinions in his report of October 2021.
15. Dr Hermann disagreed with the Medical Panel Opinion.
16. In October 2024, Dr Hermann opined that whilst the plaintiff's condition had stabilised, he remained significantly impaired, and the chronicity of his symptoms did not bode well for his prognosis, and the condition was far more likely than not to continue into the foreseeable future.[76]
17. Dr Hermann reported the plaintiff's psychiatric condition had a severe impact on his activities of daily living, including his sleep, social and recreational activities, and enjoyment of life.[77]

1. The plaintiff tendered two reports from Dr Scott, dated 26 October 2023 and 17 July 2024.[78]
2. Dr Scott confirmed Dr Hermann's diagnosis of Major Depression and an Anxiety Disorder which she considered resulted from his employment with the employer.
3. In her first report, Dr Scott stated that the plaintiff had made "small but sustained gains in terms of being able to manage domestic tasks and care for his children" with psychotherapy and other treatment modalities. He was able to function at a greater level than when he first left work and had private psychiatric admission. She opined that the plaintiff's gains were slow, and he continued to manage his anxiety on a daily basis but was vulnerable to change and stress.
4. Dr Scott reported various restrictions relating to energy, motivation, sleep and concentration. She was informed that the plaintiff only left the house for essential family-related tasks which caused him significant anxiety. Dr Scott opined that the plaintiff's condition was likely to remain unchanged and persist into the foreseeable future.
5. In her second report, Dr Scott confirmed the plaintiff's depression and anxiety were ongoing and severe. Her report referred to the plaintiff's gastrointestinal symptoms which, in her opinion, were "severe" and affecting the plaintiff's daily life, noting he was now reliant on nasogastric feeding. Dr Scott opined that that the gastrointestinal condition was not related to his employment with the employer. She said the gastrointestinal condition had led to worsening of his mood, and anxiety, further social withdrawal and reduced enjoyment of life.[79]
6. In terms of prognosis, Dr Scott opined that the plaintiff's anxiety and depression was likely to continue. Tests had not revealed the cause of the gastrointestinal condition. Dr Scott was hopeful the nasogastric tube would be removed in the next six months, allowing the plaintiff to resume normal activities of living.[80]

1. The plaintiff tendered three reports from Dr Ingram, dated 4 February 2021, 13 May 2021 and 22 August 2024 which related to two examinations - the first on 4 February 2021 and the second on 22 August 2024.[81]
2. In his first report, Dr Ingram took a history regarding the plaintiff's workplace issues as well as two prior episodes of depression dating back to 2001 and 2007.
3. Dr Ingram ultimately diagnosed the plaintiff with a Major Depressive Disorder, arising from his work with the employer. Dr Ingram recorded there had been some improvement in his depression but that he was still significantly affected, had minimal functioning and was limited in what he could do. He considered the plaintiff would need ongoing treatment with his psychiatrist. Whilst anti-depressants did not appear to be an option due to previous bad experiences, mood stabilisers may be of assistance. Dr Ingram said the prognosis was poor.
4. Dr Ingram's supplementary report commented on the plaintiff's capacity for alternative employment. Dr Ingram concluded he had no capacity for employment and that this was likely to continue into the foreseeable future due to his poor prognosis.
5. Dr Ingram re-examined the plaintiff on 22 August 2024 and provided a report of the same date. In his report, he noted that the plaintiff reported there had been "little change" in his mood since the last examination and he reported similar symptoms relating to difficulty concentrating, poor memory and variable sleep. He also reported frequent vomiting which was being investigated by his gastroenterologist. He said he had lost 20 kilograms of weight due to such issues.
6. According to Dr Ingram, the plaintiff said his anxiety was now a bigger concern than his depression. He said he was particularly focused on security - checking all the doors and windows when leaving home and constantly reviewing the security cameras when out to make sure no one had broken in. The plaintiff said his heart would race at times, but he had not experienced a full-blown panic attack.
7. The plaintiff reported his partner now largely led her own life, going on social outings and holidays with their children without him, as he was too anxious to leave the house. He reported both his children had been diagnosed with autism and his son had behavioural problems which made interactions challenging.
8. The plaintiff told Dr Ingram that he continued to take his children to and from school and spent the rest of the day carrying out housework and cooking meals. He said something that would take his wife 20 minutes to prepare could take him several hours, due to his difficulty focusing. He confirmed he did not see his friends. The plaintiff reported he would attend football games with his family in winter but did not enjoy this activity due to his anxiety.
9. Dr Ingram noted that the plaintiff wore a facemask but spoke clearly, answered questions appropriately and gave a full history in a bland and unmodulated voice. He considered his affect was depressed and there was a decrease in reactivity and engagement.
10. Dr Ingram opined there was a pre-occupation with both anxious and depressive themes but no formal thought or perception disorder. Dr Ingram considered the plaintiff's memory, concentration and intelligence were normal. He had reduced insight.
11. Dr Ingram concluded that the plaintiff remained depressed. He considered this depression had not changed significantly since the previous examination but that the depression was now accompanied by significant anxiety and obsessive-compulsive behaviour that was more prominent since the last assessment.
12. Dr Ingram said it was hard to identify other treatment modalities which may be implemented. He said that ECT and mood stabilisers may be worth considering. The plaintiff's prognosis was not good.

1. As discussed earlier, the Medical Panel provided a Certificate of Opinion and Reasons for Opinion on 31 August 2021.
2. The following is a summary of the Medical Panel's Reasons for Opinion. The Reasons can be admitted, giving context to the decision of the Medical Panel.[82]
3. During the examination, the Medical Panel recorded that the plaintiff was reasonably well-groomed. He was alert, attentive, engaged, communicated well and had good eye contact. The plaintiff did not appear obviously depressed or anxious. His mood was reactive. He laughed and smiled on a number of occasions. He answered questions quickly and had a normal thought stream.
4. The interview lasted for 75 minutes, during which the plaintiff's attention and concentration appeared normal. The Medical Panel did not observe any issues with his short-term memory.
5. The Medical Panel considered that the plaintiff's presentation was not consistent with his assertion that his mood was "pretty crap", that he had no motivation; everything was a struggle.
6. He did not report any ongoing distressing thoughts about his employment with the employer.
7. The plaintiff reported he used marijuana in his late teens for a few years socially, a few times per week but said he "did not use much" and that he definitely ceased smoking marijuana by his early 20s. He had also used speed a few times but, again, ceased in his early 20s. He used cocaine whilst at the employer, up to a gram per week. He said he had taken cocaine because he was working so much and enjoyed it. He said he was no longer using cocaine. He said he commenced drinking alcohol at 16/17 years old and had a normal consumption into his 20s. He stopped drinking in his early 30s, around the time his daughter was born. He said he then started drinking again whilst working for the employer, and his drinking increased as his stress at work increased. He reported that from 2013 onwards, he was drinking up to a bottle of vodka per day. He ceased drinking around the time he was hospitalised, at which time he commenced on Antabuse for twelve months. He said he was drinking an average of three beers a month.
8. The Medical Panel showed the plaintiff an email which he had sent to Ms Mellington in August 2014 which referred to smoking a few ounces of "weed" a week whilst living in Doveton, going to brothels most weekends, on speed after winning or losing at the casino, and suggesting he did not think he ever really slept in a six to twelve-month period. The plaintiff advised he had no recollection of sending that email and that he had only been to a brothel once in his life.
9. The plaintiff was asked about Ms Mellington's clinical records which referred to him experiencing feeling of sadness and depression for most, if not all, of his life. The plaintiff said he had experienced some mood symptoms in the past but nothing like his current state.
10. The plaintiff reported there were no major problems for him growing up and that his childhood was not too bad. He remarked his father probably drank a bit more than he should. He denied any domestic violence or aggression.
11. The Medical Panel referred the plaintiff to Ms Mellington's notes which recorded a history of physical abuse perpetrated by his intoxicated father. The plaintiff responded he "did not have the greatest childhood" and that he was occasionally hit by his father and his mother with a wooden spoon.
12. The plaintiff was also taken to Ms Mellington's notes which referred to him not being afraid of trouble, getting suspended at school multiple times, smoking and drinking, not being afraid of the police and driving a car illegally. It appears this was whilst he was in high school. The plaintiff advised he had been suspended previously and that he once took his father's car for a joyride.
13. The Medical Panel noted that when the plaintiff was presented with contemporaneous records which contradicted what he said, he tended to use terms such as "I don't recall".
14. The Medical Panel considered that the plaintiff had a tendency to downplay issues relating to his past psychiatric history, substance use history and development/personal history.
15. The Medical Panel concluded the plaintiff had a longstanding history of mood difficulties, abnormal personality traits (borderline and dependent) and periods of significant substance misuse prior to commencing work with the employer.
16. The Medical Panel said it was unlikely his traits met the full criteria for a Personality Disorder but considered it was likely he met the criteria for a Substance Use Disorder (including cannabis, alcohol and amphetamines) which had ceased at the time he commenced with the employer.
17. The Medical Panel concluded that the plaintiff became increasingly stressed in the course of his employment with the employer, and his pre-existing maladaptive behaviours escalated in an attempt to deal with his distress, resulting in his hospitalisation in 2014, with a major depressive episode and alcohol withdrawal. The Medical Panel found his condition then deteriorated in the context of various prescription medications and ongoing substance misuse.
18. The Medical Panel concluded that the plaintiff's condition improved in 2016 after he ceased medication, reduced his substance misuse and had treatment. The Medical Panel noted that the plaintiff requested a return to work with the employer, but this was refused.
19. The Medical Panel found the plaintiff had further improved, despite the fact that he said he was significantly depressed and anxious. The Medical Panel noted that this opinion was contrary to the opinions of his treating psychiatrist, and other medico-legal examiners, that the plaintiff had an ongoing Major Depressive Disorder.
20. The Medical Panel found there was no objective evidence of depressed or anxious mood during the interview. The plaintiff's cognition appeared normal. His behaviour overall did not demonstrate a Major Depressive Disorder, despite his reported symptoms and functions. On this basis, the Medical Panel accepted he was suffering from a Major Depressive Disorder which it concluded was in substantial remission. The Medical Panel later said that the Major Depressive Disorder was of a "relatively mild" nature, and it was in "partial remission". It was the Medical Panel's opinion that the plaintiff's presentation at the time of the examination was consistent with the longstanding personality structure of the plaintiff and his longstanding issues with lowered mood.

1. The defendant tendered no material which postdated the Medical Panel's decision.

1. The primary submission made by Counsel for the plaintiff was that the plaintiff's mental health condition was severe as at the time of the Medical Panel Opinion in 2021 and remained severe as at the time of the hearing.
2. In addition, it was submitted that:
   • there was no dispute on the medical evidence that the plaintiff was suffering from a Major Depressive Disorder.
   • even if the Court was bound by the finding that the plaintiff's condition was in substantial remission, the plaintiff still met the requisite threshold.
   • his symptoms were significant and wide-reaching, impacting upon his relationships with his partner and children, his ability to leave the house and deal with even the most simple everyday tasks.[83]
   • there had been no attack on his credit, and the plaintiff's reported symptoms were unchallenged.
   • there could be no criticism of the plaintiff for not taking medication as it was accepted that that he had experienced adverse reactions to psychotropic medication.
   • the plaintiff had been attending his psychiatrist on a weekly basis for some nine years which was necessary and would continue. There was no dispute in the medical material on these points.[84]
   • the loss of his capacity to undertake his pre-injury employment did not cut across the Medical Panel finding in relation to his capacity to undertake alternative employment. It was said that given the plaintiff's sworn evidence that he enjoyed working and obtained job satisfaction from that employment, this was a consequence which could be taken into account as a pain and suffering consequence in line with the analysis in Ellis Management Services Pty Ltd v Taylor.[85]

1. Senior Counsel for the defendant accepted the plaintiff had been diagnosed with a Major Depressive Disorder.[86]
2. Senior Counsel submitted:
   • the Medical Panel considered all the evidence available at that time and found the condition was in "substantial remission" which indicated the plaintiff's condition was mild and did not meet the threshold of "severe".
   • the treatment regime of weekly attendances upon Dr Hermann with a lack of medication since 2016 spoke against a finding of "severe".
   • the plaintiff's mood was more settled and that his panic attacks had ceased. He could undertake activities such as take his children to and from school and carry out household chores, and that his consequences were therefore not sufficient to meet the level of "severe".[87]

1. The Medical Panel determination was delivered in August 2021.
2. In order to consider the question of severity, the Court has to look to the whole of the evidence, and, in particular, the evidence since August 2021.
3. Whilst Dr Hermann did not accept the Medical Panel Opinion, the Court is bound to accept and apply it. Dr Hermann did not suggest that there had been any real change to the plaintiff's psychiatric state since August 2021.
4. Dr Scott's reports suggest that there had been some small improvements in the plaintiff's psychiatric state. Her reports do not support an assertion that there had been any deterioration to the plaintiff's psychiatric state since August 2021.
5. The lay material was not considered by the Medical Panel as it came into existence after August 2021. However, none of the lay material supports the proposition that there has been a deterioration since August 2021.
6. Unfortunately for the plaintiff, there is a lack of any objective evidence of any change or deterioration in his psychiatric state since the Medical Panel delivered its Opinion.
7. To that end, I adopt the following comments made by Judge Purcell in the case of Kuluk:

"... 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."[88]

1. The application is dismissed.
2. I will hear from the parties on the question of costs.

[1] Plaintiff Exhibit P7, Plaintiff Court Book ("PCB") 60

[2] Plaintiff's Exhibit P1, PCB 37, paragraph [6]

[3] Plaintiff's Exhibit P1, PCB 38, paragraphs [8-9]

[4] Plaintiff's Exhibit P1, PCB 39, paragraph [13]

[5] Plaintiff's Exhibit P1, PCB 40, paragraph [15]

[6] Plaintiff's Exhibit P1, PCB 41, paragraph [19]

[7] Plaintiff's Exhibit P1, PCB 41, paragraph [22]

[8] Plaintiff's Exhibit P1, PCB 29-30, paragraph [4]

[9] Plaintiff's Exhibit P1, PCB 31, paragraph [16]

[10] At the time of the hearing the nasogastric tube had been removed

[11] Transcript ("T") 24, Line/s ("L") 23-20

[12] [2021] VCC 746 ("Said")

[13] [2021] VCC 834 ("Durrant")

[14] [2021] VCC 1262 ("Kuluk")

[15] [2022] VCC 2244 ("Osborne")

[19] Kuluk at paragraphs [21]-[22]

[20] Kuluk at paragraphs [17]-[18]

[46] Plaintiff's Exhibit P1, PCB 30, paragraph [9]

[47] Plaintiff's Exhibit P1, PCB 30, paragraph [9]

[48] Plaintiff's Exhibit P1, PCB 2, paragraph [18]

[49] Plaintiff's Exhibit P1, PCB 32, paragraphs [20], [22] and [24]

[50] Plaintiff's Exhibit P1, PCB 22, paragraphs [9]-[24]

[61] Plaintiff's Exhibit P4, PCB 15, paragraph [7]

[62] Plaintiff's Exhibit P4, PCB 15, paragraph [9]

[63] Plaintiff's Exhibit P4, PCB 16, paragraph [15]

[65] Plaintiff's Exhibit P3, PCB 11, paragraph [10]

[66] Plaintiff's Exhibit P3, PCB 11, paragraph [11]

[67] Plaintiff's Exhibit P2, PCB 7, paragraph [12]

[68] Plaintiff's Exhibit P5, reports dated 3 February 2016 (PCB 102-103); 10 November 2016 (PCB 95); 5 December 2016 (PCB 91-94); 21 January 2021 (PCB 85-88); 16 October 2023 (PCB 56-59) and 11 October 2024 (PCB 48-51)

[73] Plaintiff's Exhibit P5, PCB 86, PCB 57

[75] Plaintiff's Exhibit P5, PCB 87, PCB 59

[78] Plaintiff's Exhibit P6, PCB 54-55, PCB 52-53

[80] The tube had been removed by the time of the hearing

[81] Plaintiff's Exhibit P10, PCB 115-120; PCB 113-114 and PCB 106-112

[82] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at paragraph [58]

[85] [2013] VSCA 326

[88] Kuluk (supra) at paragraph [38]