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IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE:
WORKCOVER DIVISION F12615305
BETWEEN:
JOSEPH HOSNY Plaintiff
-and-
VICTORIA RACING CLUB PTY LTD Defendant
MAGISTRATE: Ginnane
WHERE HEARD: Melbourne
DATES OF HEARING: 4, 5 & 6 September 2017
DATE OF JUDGMENT: 8 September 2017
CASE MAY BE CITED AS: Hosny v Victoria Racing Club Ltd
MEDIUM NEUTRAL CITATION: [2017] VMC015
REASONS FOR JUDGMENT
…
Accident Compensation Act 1985 – physical assault at work - psychiatric injury – 130 week notice of termination- whether current work capacity – whether if no current work capacity not likely to continue indefinitely – prior conviction for fraud - failing to report work while in receipt of payments of compensation under the Act- serious injury application – untruthful affidavit – nature of statutory compensation under Act as opposed to common law proceeding for damages – need to assess all evidence of capacity as opposed to adopting a blanket approach to credit - whether worker’s untruthfulness and dishonesty renders him unreliable in account of current capacity- nominal evidence by defendant by way of previous vocational assessment – identification of certain jobs - no current work capacity likely to continue indefinitely - plaintiff’s claim successful – notice of termination set aside
APPEARANCES Counsel Solicitors
For the Plaintiff Ms M Yerusalimsky Nowicki Carbone
For the Defendant Mr M Richards IDP Lawyers
2
HIS HONOUR:
1. The plaintiff seeks to set aside the Notice of Decision by the authorised agent dated
22 May 2015 that terminated weekly payments of compensation and of payment of
medical and like expenses.
2. The plaintiff was born in Naples on 19 March 1957. He is age 60. He came to
Australia at 9 years of age. He completed year 11 schooling. He undertook studies at
the RMIT but completed no courses. Since finishing his education he has worked in a
number of positions frequently associated with mail sorting. As well he has performed
work as a porter at a number of hotels. His substantial period of work has been at the
races and at the football employed by the MCC and the VRC. He also undertook
employment at the Moonee Valley racing Club. Much of this work if not all of it has
been on a casual basis.
3. The plaintiff commenced employment with the defendant on a casual basis in 1995
and was performing his work largely during the currency of the Spring Racing
Carnival. It was in the course of his duties of employment with the defendant on 3
November 2007 that the plaintiff suffered his work-related injury. He was in charge of
a small shuttle bus that ferried guests from marquees to the front gate of the
Flemington race track. He was assaulted by a passenger, an actor apparently, with
the surname of Gann. He was attended to by the doctor on site for St John’s
Ambulance, Dr Dutch and then two days later on 5 November 2007, he attended on
his then treating General Practitioner David Frost who observed minor physical
injuries. He was referred to a psychologist Maria Mercuri on 16 November 2007 and
in February 2008 to a psychiatrist Dr Rowan McIntosh who diagnosed PTSD.
4. He lodged his claim form (Exhibit P1) on 10 January 2008.
5. He commenced a common law claim for damages in the County Court of Victoria in
April 2012.
The plaintiff’s evidence
6. In his evidence in chief the plaintiff was asked whether after the incident he went
back to work with the defendant and he said he did not. He said that he continued to
work elsewhere however after the accident. He said he worked at the MCG on the
Boxing Day test. He said he also worked at the MCG during 2008 and 2009. He said
he might “have done some shifts” but these were on the advice of his psychiatrists.
He said Dr McIntosh knew that he was working because “he was the one who
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advised me to work”. He said Dr Frost gave him Workcover completed certificates of
capacity which he would merely sign.
7. He said his condition worsened in 2008 and he developed a fear of being around
people and of going out. He said at the date of the accident he had been living with
his wife in St Albans but in consequence of the injuries and the loss of remuneration
from work and his injury his marriage was ruined. He said that he and his wife are
now divorced. He said prior to the work accident the marriage was good. He said
after his marriage collapsed he was itinerant for a time. He said he now has a
Ministry of Housing home and has been in that place for about a year. He said he is
no longer seeing Dr Frost and Dr Stokes is now his General Practitioner. He
continues to see Mr McIntosh. He gave evidence about the suite of medications he
takes including Seroquel, Lovan, Valium, Epilim and Temaze.
8. He says he suffers panic attacks and suffers from nightmares. He said he has been
on medication for the better part of 7 or 8 years. He said prior to the work injury he
was not on medication. He said at the date of the injury he weighed 108 kg but is
now currently 76 kg. In terms of his daily life he said he merely “hangs around the
community Centre” located at his home.
9. He said his memory is poor he cannot remember dates. He said his concentration is
poor he said he used to like the footy but not anymore. He said he requires to read
something 6 or 7 times in order for him to realise that is already read it. He said he
used work in a mail room where he could remember more than 700 names but now
cannot. He said he is very anxious and cannot take public transport times. He said
his sleep is “no good”. He said invariably it will be 2.00 or 4.00 am before it drifts off
to sleep but he wakes up again at around 7.00am.
10. The plaintiff was cross-examined. He said he had suffered back injury “a long time
ago”. He said this was when he was employed with Skybus and he had a claim for
back and neck and a finger injury when employed with Aviva. It was suggested that
he was aware of the importance of certificates of capacity he said, “not greatly”.
11. He accepted that he can read and speak English competently. He was taken to his
curriculum vitae and although he professed not to have a particular memory of all of
the entries contained in it, he was prepared to say that he adopted the contents of it
“if that is what it says”.
12. He said he is an insulin dependent diabetic. He disputed that his weight loss was
attributable to medical advice to lose weight because of his diabetes. He denied that
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he had any gambling or alcohol-related problems prior to November 2007. He was
directed to his bank accounts and the substantial diminution in a short space of time
of his redundancy payment of in excess of $11,000 he received from Aviva in
October 2007. He denied that he gambled away the money on pokies at hotels.
There is some basis in the evidence of bank withdrawals to suggest an improvident
existence during a period of time.
13. The entry made by Dr Dutch from St John’s Ambulance on the date of the accident
identified several punches to the left cheek having been inflicted on the plaintiff but
the no evidence of bruising and he recommended the plaintiff have a routine follow-
up.
14. Following the assault the plaintiff worked a full shift on Cup Day as he did on Oaks
Day and Stakes Day. He said in evidence that in fact that it was only after the last
day of the Spring Racing Carnival that he no longer returned to work with the
defendant.
15. However the plaintiff did work at the MCG on the Boxing Day test in 2007. He was
directed to a letter from the Victorian WorkCover Authority (the VWA) dated 3 March
2008 and the advice contained in it that he must report if he returned to work with
anyone else. He failed to do so. He said he did not comprehend the requirement
imposed on him in the letter.
16. The plaintiff was directed to his application in support of his S 134 AB application for
the grant of a Serious Injury Certificate in the County Court and in particular to the
affidavit he swore on 6 May 2007. He was taken in particular to paragraphs 34 and
38 of the affidavit and his statements to the effect that he had not returned to any
form of employment since the incident of assault on 3 November 2007. The plaintiff
when confronted with this said that he thought what he deposed to was intended to
relate only to returning to work with the defendant. It was as an untruthful statement
and one he continued to prosecute before me. Despite the plea of guilty to the
criminal charge the plaintiff’s evidence to me exhibited a reluctance to accept his
conduct. In the course of final address counsel for the plaintiff submitted that the
plaintiff’s mental state may have been such that at the time he was unaware of the
nature of his conduct. I do not accept that submission. I believe the plaintiff
understands right from wrong.
17. However, the plaintiff did receive a Serious Injury Certificate and thus was allowed to
commence proceedings at common law for damages. He did so but as far as the
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defendant is concerned the claim against it was dismissed in the course of the trial
before her Honour Judge Davis and the proceeding continued solely against Mr
Gann. Gann did not participate in the trial of the proceeding. The plaintiff was
awarded $325,000 in damages by her Honour Judge Davis. In the course of the trial
however it became apparent that the plaintiff had been undertaking employment at
the same time he had been receiving weekly payments of compensation. He had not
however at that stage been charged with any criminal conduct. Her Honour made
positive findings about the plaintiff’s evidence. They are not findings I share.
18. The VWA commenced criminal proceedings against the plaintiff in the Magistrates’
Court. The plaintiff pleaded guilty to one charge of obtaining financial advantage by
deception. He was sentenced on 9 September 2014 to term of imprisonment of 6
months wholly suspended for a period of 24 months and he was ordered to pay
$49,787.20 by way of compensation under the Sentencing Act (1991) together with
costs in excess of $7,000. No amount has been paid in satisfaction of or reduction of
the award of compensation or costs.
19. As a result of the plaintiff’s conviction Gann applied out of time to set aside the
judgement of Judge Davis. The application was granted but his Honour Judge
Brookes was not satisfied that fraud had been established and so the judgment in the
plaintiff’s favour stood. I am told that Gann has an appeal on foot against the decision
of judge Brookes. The determination of that appeal is not a reason for me to delay
the publication of my reasons for decision.
20. It is evident that on numerous occasions the plaintiff gave false answers regarding
his working history since the assault. These falsities were made to a suite of different
people an over the course of extended periods of time. Indeed it was on the basis of
the plaintiff’s deception that his GP caused certificates of capacity to issue. In
addition to deceiving his GP the plaintiff also was untruthful by omission to his
treating psychiatrist Rowan McIntosh. I am satisfied that the plaintiff gave incomplete
information to Dr McIntosh about the extent of the work he undertook after the
assault in November 2007. Coincidentally the failure to report his work occurred in
and about the times that Dr McIntosh was urging the plaintiff to make an effort to
attempt some limited work as part of his overall treatment of the plaintiff. As far as Dr
McIntosh was concerned and unawares of the work being performed he found that
the plaintiff “was not up to it.”
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21. In considering the plaintiff’s conduct I am reminded of the statements made by
Warren CJ and Hargrave AJA in Sejranovic v Berkeley Challenge Pty Ltd [ 2009]
VSCA 108 that:
“In a number of cases, this court has referred to the fact that medical opinions
may, to varying degrees, be dependent upon the accuracy of the patient or
claimant as a historian. A medical opinion1 which is based upon an account
by a patient or claimant as to his or her symptoms may have little or no
probative weight where the court determines that such witness is not reliable.”
22. I was not impressed by the plaintiff. In the course of the hearing and when subject to
cross examination he remained reluctant to admit his falsehood. In cross examination
the plaintiff was confronted with his past dishonesty. On some occasions when
questioned as to why he had made false statements to doctors the plaintiff’s
response were remarkably lacking in memory when the answer to the questions
would have elicited an unfavourable response whereas in responding to other
questions he cavilled with counsel both as to the form of questions and the accuracy
of their comment. There may have been some attempt by the plaintiff to feign a lack
of sufficient comprehension or understanding of some questions when confronted
with his past dishonesty.
23. The plaintiff’s willingness to give false information in relation to his work capacity and
history in the period soon following the assault makes me approach his evidence on
matters of contention and that depend very much on self-appraisal of symptoms and
their effects on with caution in the absence of clinical evidence to provide
corroborative support. However, the fact alone of the plaintiff’s dishonesty does not
mean that his evidence should be discarded in toto. I think it would be wrong of me to
treat the plaintiff’s previous bad character of itself and without recourse to other
evidence as determinative in all material respects of a resolution of the question of
his capacity for suitable employment.
24. The Act is a piece of beneficial legislation and it calls for determinations by those who
administer it, and the Court who stands in the shoes of the decision maker and is
seized of all the powers of the same, to consider various statutory tests in relation to
a determination made for entitlements to compensation in the form of weekly
payments and medical and like expenses for injury. These benefits are anchored by
some fundamental underpinnings; that is that the injury arise by reason of or in the
1 Underlining added
7
course of employment and as is the present case, that after a second period of
entitlement, a plaintiff must establish that he has no current work capacity and that
the same is likely to continue indefinitely and that the operative reason for such a
state of affairs is that the work injury continues to be a material contribution to that
state of affairs.
The plaintiff’s medical evidence
25. The plaintiff relied on considerable amount of medical material. The plaintiff’s counsel
as well referred me to Exhibit P 7 which appears to constitute a typed note of a
telephone contact of 25 June 2008 between a case officer and the plaintiff’s treating
psychologist Miss Mercuri. It reads:
Discussion with treater Mercuri, the worker’s psychologist… revealed that at
this time the worker was improving but still had symptoms of his stress. She
confirmed that he had attempted to do work in crowds and even a short shift
in the mail room. Even though he was not in a crowded place is still had
difficulty focusing and concentrating and completing his tasks of sorting.
Hence at this stage any job can be problematical for him and he is not
suitable for a Voc/Jsa program. To his credit is eager to return to gainful
employment and this will happen in due course. Ms Mercuri was not able to
provide a timeframe for this expected improvement.
26. The plaintiff’s counsel submitted in her final address that this note of record of
conversation was indicative of the plaintiff’s integrity in so far as it disclosed via his
then treating psychologist the fact of him having attempted to do some work including
a short shift in a mail room. Rather in my view the note is to the contrary and reveals
again at the date that it purports to record a conversation the person to whom it might
be expected the plaintiff to give full and frank information concerning his health and
his work capacity has failed to do so. If the note is to have any probative worth, and I
doubt that it does, it only goes to reinforce the fact that the plaintiff was at this time
providing piecemeal information to those charged with his care and treatment.
27. As to the work the plaintiff did perform after the assault on 3 November 2007 and
most particularly in his casual employment status with the Melbourne Cricket Club
there is the following by way of evidence. The defendant relied upon the employment
history in the period from 5 August 2007 until 26 October 2010. If one looks at the
period of time recording pieces of employment following the assault it reveals
relevant employment from 26 December 2007 until 12 September 2009. It records
ongoing employment of the plaintiff either as an attendant or working at the passout
8
gates or at various ramps within the stadium. It shows the times that the plaintiff
logged on and logged off on such occasions and his employment hours varied but
included periodic work anywhere from as little as 4.5 hours to 10.25 hours. The
plaintiff’s evidence was that he did not find this work straightforward and indeed in
the carriage of it he was subjected to characteristic symptoms of post-traumatic
stress disorder. He said his condition and his ability to undertake this work was so
impaired by his condition that it was necessary for him to ask and for his employer to
accommodate him working in more secreted and less public areas of the MCG. That
account is to some extent corroborated by affidavits furnished as part of the
investigation of the plaintiff’s fraudulent receipt of benefits by 2 officers employed with
the Melbourne Cricket Club. An affidavit by Vincent James made 3 July 2014 sets out
that the deponent was employed as a supervisor of event day staff and had known
the plaintiff for some years as a casual event staff employee. He said that the plaintiff
was for “a period of time” under his “direct supervision”. He went on to say that he
recalled the plaintiff telling him about the assault that occurred at the Flemington
Racecourse. He said as well that the plaintiff told him that he was nervous about
working by himself therefore James placed him in a position alongside other
employees in the Football Club Members area. He deposed that this is an area that
is quieter than general public areas and that the plaintiff’s role involved general
customer service, checking tickets, directing patrons towards the seats and keeping
the area generally clear. He went on to say that he recalled “a couple of occasions”
when he observed the plaintiff “a bit agitated.” He said that he had a conversation
with him on these occasions and observing his agitation and he allowed him to leave
a few minutes early so as to avoid the crush of people exiting the ground. He said
that although the plaintiff appeared on occasions to be “subdued and nervous” he
was able to perform his duties and that otherwise than leaving early “on a couple of
occasions he completed his full shifts.”
28. The other affidavit provided from employees of the Melbourne Cricket Club is that of
Anne Turville. She opposed to being employed as the Events Staffing Supervisor.
She deposed that she knew the plaintiff “reasonably well.” She said the plaintiff
commenced employment on 22 August 1989 and he worked shifts based on his
eligibility and availability. She deposed to sometimes talking to the plaintiff on the
telephone and being able to “tell that he was not well that day”. She said his voice
appeared to be “quiet, timid and shaky”. She said however it was not like this on all
occasions. She corroborated the statement in the affidavit of Mr James that the
plaintiff was allocated shifts in the Olympic Stand, an area known to be “quieter than
9
other areas;” however she went on to say that quiet though the area may be, it does
require of necessity and interaction with people “and crowds and this cannot be
avoided”. She deposed to not being aware of any instance where the plaintiff was
unable to complete his duties when he was at work although he was known to
contact her on occasions when scheduled to work advising of his inability to do so
due to ill health.
29. The further medical evidence relied upon by the plaintiff in support of an ongoing lack
of capacity for employment consist of the reports of Doctor Entwistle psychiatrist, the
plaintiff’s current GP Dr Stokes, Mr Kaplan and Mr Seri. I will deal with the salient
parts of their reports in turn.
30. The defendants’ assault on the plaintiff’s claim is an understandable and beguilingly
attractive argument. However, in my opinion, it is for these very reasons that I think it
is necessary to analyse the matter with care and in a nuanced manner. Whilst I
accept that a man of dishonest character warrants particular scrutiny when testifying
about matters that depend exclusively or very largely upon an acceptance of his
word, it does not follow that a man of dishonesty and questionable character cannot
suffer a genuine and compensable injury within the meaning of the Act or that in
consequence of the same be subjected to real restrictions. I have approached the
evidence keeping in mind the following principles:
First, proved dishonesty in claiming compensation of weekly payments under
the Act invites greater caution in any subsequent application made by a
plaintiff;
Second a man convicted of dishonesty may nonetheless find himself having
suffered an injury that attracts a right to benefits under the Act;
Third, proved dishonesty whether arising under the Act or otherwise is not a
disentitling factor under the Act
31. I have also assessed the evidence in light of the following statement by the Court of
Appeal in Dordev Cowan & VWA [2006] VSCA 254 at [14] (omitting citations) and
that:
It is not surprising, however, that the appellant’s credit was the principal focus
in the case, given that the respondents contended that she was, in effect,
10
fabricating or otherwise impermissibly exaggerating the effects of the injury on
her in terms of pain and suffering and ability to work. It is plain enough that
the appellant’s credibility was relevant not only to the question whether her
own evidence in that regard was to be accepted, but it was also relevant to
the reliability of the medical evidence on which she relied to establish her
case, because the opinions of her specialists were essentially dependent on
the credibility or reliability of her account of the history of the injury and its
effects on her. This was well recognised by the learned trial judge. As I have
noted, after a comprehensive analysis of the evidence, his Honour concluded
that the appellant was not a credible witness and that she did not give to the
medical practitioners an accurate account of the history of the injury and of its
effects on her in terms of pain and suffering and disability. These findings
were, I think, plainly open to his Honour and were not challenged by the
appellant. It follows that his Honour was entitled to take the view that he could
accord only limited probative weight to the evidence.
32. By written notice dated 25 May 2015 the plaintiff was advised relevantly:
“You are no longer entitled to weekly payments and medical and like
expenses because you are not incapacitated for work…
Your incapacity for work is not materially contributed to by an injury arising
out of or in the course of your employment.
Your incapacity for work is not materially contributed to by an injury which
entitles you to compensation.
You are no longer requiring any medical treatment for your injury.
The medical and like expenses you are claiming a not for an injury which
entitles you to compensation under the Act.
The medical and like expenses you are claiming relates to an injury which
arose out of an event or circumstances which does not entitle you to
compensation under the Act.
The dishonesty and work performed
33. On 6 May 2009 the plaintiff made an affidavit in support of his application for
common law damages. In the hearing for common law damages and subsequently
established separately before me in this hearing it became apparent that the plaintiff
11
had in fact returned to work subsequent to his injury that he failed to disclose this fact
to his employer or to the authority. During the period of time these jobs of work were
performed subsequent to his injury he obtained certificates of capacity from his
treating GP over the period for March 2008 to 15 September 2009. Each certificate
certified the plaintiff as totally unfit for work. Each certificate was signed by the
plaintiff. Each certificate contained a declaration that the plaintiff had not engaged in
any form of employment since the previous certificate was obtained. Each
declarations was false. I am satisfied they were knowingly false. I do not accept the
plaintiff’s explanations which varied in the course of his evidence before me to the
effect that he did not make the mark declaring that he had not engaged in any form of
employment but that it had been placed there by his doctor but later that really can’t
now remember. He accepts however he signed the declaration but he says he did
not read it or comprehend it. I believe he read it but whether he now comprehends
the effect of his perfidiousness is open to question.
34. The extract of the record of the conviction in this Court is that on 1 September 2014
the plaintiff was convicted and sentenced to an imprisonment term of 6 months on
one charge of obtaining financial advantage by deception. That sentence was wholly
suspended for an operational period of 24 months. The plaintiff was ordered to pay
$49,787.20 to the authority under the Sentencing Act 1991 together with costs and
the amount of $7,457.
The medical evidence
35. I heard oral evidence from Dr Rowan McIntosh and Associate Professor Doherty. In
addition I was supplied with an abundance of medical reports.
36. Dr McIntosh has seen the plaintiff from the early stages following the assault in
November 2007. A substantial number of reports have been made by him and were
put in evidence. I have reviewed each of them. In addition to consultations with the
plaintiff Dr McIntosh has and continues to prescribe significant dosages of high-grade
medications to the plaintiff. Dr McIntosh accepted in his viva voce evidence the
benefits associated with progressively weaning the plaintiff from his tranche of
medications but he said there had been some recalcitrance on the plaintiff’s part in
agreeing to his medication being adjusted downwards. Dr McIntosh has treated the
plaintiff since referral in February 2008. Dr McIntosh has attributed a diagnosis by
way of a variation of PTSD. Dr McIntosh expressed his judgement that the plaintiff’s
condition progressed by way of an upward trajectory “in the first six, twelve to
12
eighteen months” and reached its zenith he thought “in 2010.” Despite this Dr
McIntosh encouraged the plaintiff to the extent he felt capable of returning to some
form of work. Dr McIntosh however was deceived by the plaintiff and was unaware of
the significant regular casual work undertaken by the plaintiff after the work injury and
throughout the period particularly from March 2008 to 15 September 2009. When
asked if this disclosed work capacity altered his opinion as to the plaintiff’s current
condition Dr McIntosh said it did not. In a report dated 15 July 2009 among other
matters Dr McIntosh stated: “It’s only in the past couple of months that he has been
able to persistently go to local shopping centres/local parks (for brief periods). Prior
to this he was stuck at home (his brother’s house) for days at a time, rarely venturing
out the fear that he would “almost certainly” be attacked by some other
deranged/intoxicated/drug affected individual”.
37. Of course it is not Dr McIntosh alone who formed an opinion of incapacity based on
the plaintiff’s account of his psychological condition. In fact Dr Entwistle, psychiatrist
also conducted an independent medical examination of the plaintiff in a report dated
13 February 2012 wrote:
Mr Hosny has Chronic Post Traumatic Stress Disorder. This is a work caused
condition. He remains unwell. His treatments have assisted him to maintain
some equilibrium. Nonetheless his condition remains at a severe level.
As indicated Mr Hosny will never work again. He has a serious psychiatric
condition…
38. Doctor Entwistle’s opinion changed as a result of being advised of the plaintiff’s
criminal conduct. In a subsequent report dated 30 August 2012 and following the
provision to him of the transcript of court proceedings he wrote:
I note that Mr Hosny attended the Court in April 2012 in relation to Common
Law application and that during those proceedings it came to light that he had
been employed at various times since his injury on 3 November 2007.
Based on my assessment of him and his account to me, Mr Hosny suffers
from a psychiatric condition in the form of PTSD.
On each of the occasions that I have seen him, based on his account and his
presentation to myself I considered that he had no capacity for employment.
In perusing the transcript it appears that Mr Hosny in fact did work and did so
at least until September 2009 when he worked as an attendant from 5 pm
13
until 10:15 pm at the MCG at the Collingwood v Adelaide match. As such
there are questions as to Mr Hosny’s veracity….
Given that he claimed to me when I saw him in March 2009 that he was not
able to work, but was in fact actually working, it is apparent that Mr Hosny’s
assessment of his work capacity and statements to that affect to myself were
an under estimate of his work capacity from a psychiatric perspective.
Whether or not anything has changed significantly in regard to his further
work duties, i.e. whether his psychiatric condition has worsened to the point
where he is genuinely not able to work, is again a question of evidence2
rather than a psychiatric opinion.
39. On the application to seek an extension of time for Gann to make application to set
aside the judgement of her Honour Judge Davis awarding the plaintiff damages the
court said the following:
In summary it was submitted on behalf of the respondent that the mere fact
that, for a relatively short period between 2008 and 2009, Hosny has been
able to engage in some work, although he claimed trial that this was not the
case, did not warrant the drastic step being taken of granting this extension of
time.
We could see the force of some of the submissions. Nonetheless, having
read the transcript of Hosny’s cross-examination closely, it seemed to us that
his plea of guilty indicated that he had deliberately falsified his evidence in
certain important respects, nevertheless succeeded in persuading the trial
judge that he was a truthful witness in all aspects of his evidence. Further, the
medical evidence adduced on his behalf was also based on a patently false
history. That calls into question the soundness of the damages verdict. Had
her Honour known that Hosny was in fact lying about the extent to which he
had been rendered unable to work, it may well have been, in our view, that
some significantly less amount than $325,000 would have been awarded
against Gann by way of damages.
40. I am mindful of the content of those comments by the Court about the moderating
effect the full extent of the plaintiff’s untruthfulness might have had on the trial judge’s
verdict for damages in the common law trial whereas I am called onto perform a
2 My emphasis
14
different function which is statutorily prescribed task to make a determination as to
current capacity for weekly payments and medical and like expenses. The historical
importance of the plaintiff’s false evidence about work performed in the period after
the assault in 2007 strikes me as having different work to do in a common law action
to a determination of a statutory claim for weekly payments of compensation together
with medical and like expenses for ongoing and indefinite incapacity for work. The
dishonesty whilst an important matter and one that necessarily tempers my view of
the plaintiff’s evidence may not prove determinative of the statutory test and
outcome.
41. Associate Professor Doherty has a distinctly different if not a somewhat jaundiced
view about the veracity or the lack of veracity of the plaintiff and its impact on his
ability to form a meaningful diagnosis of any psychiatric condition. However,
Professor Doherty in his oral evidence, referenced his opinion not only by to the
plaintiff’s historical deceit, but also on his own judgement formed on examination of
the plaintiff. In his report dated 20 April 2015 following examination he wrote:
He told me he is not sociable and he does not go out. He told me he
occasionally goes to church in the city for peace and quietness. He told me
he does not take public transport in peak hours. He told me he avoids crowds.
He told me he does not go to the football and the last time he worked at the
MCG was 5 or 6 years ago. He told me mostly those thoughts go through his
mind and he told me he feel scared.
With regard to his own views about his current work capacity, he told me he
had no confidence and cannot concentrate. He told me he could not hold onto
a job. He told me has no ability to do anything.
His care worker, who attended the IME examination with him, said the
following. He told me he is a warm and friendly person. He told me his very
caring. He told me he had recently given a talk to his peers about his life
experience in front of about 20 people. He told me that happened about a
week ago.
The worker has been diagnosed within the supplied material as having a
post-traumatic stress disorder. The worker gives a history of a severe assault
on him in compensable circumstances. The worker’s history is unreliable.
The worker was examined by a doctor at the racetrack who found no
objective evidence of an assault. The worker, in the stand agreed that there
15
was no blood or bruising however is said he was sore everywhere and it was
noted the worker continued working at the same racetrack for the next few
days. Transcript of the Supreme Court hearing clearly indicates the worker
was examined by staff doctor on the racetrack immediately after the claimed
assault. The transcript indicates that the worker claimed an assault on Derby
Day, that is the Saturday and attended the Melbourne Cup on Tuesday and
work for the employer on Melbourne Cup Day and on Oaks Day, the following
Thursday.
At the present time I could not identify a diagnosable psychiatric condition.
The history of the claimed assault and the psychiatric symptoms thereafter
are not reliable.
It is clear the worker continued working in various employments over the next
year or so.
His life circumstances considerably deteriorated. He became homeless. He
drank heavily. He was awarded compensation in civil proceedings. He was
charged and convicted of fraud.
In my opinion there is no current connection between the reported symptoms
and the claimed injury sustained on 3 November 2007. That is there is no
material contribution that work makes, to the current reported psychiatric and
psychological symptoms.
The worker is not incapacitated for work at the present time. The worker has
a current work capacity from a psychiatric point of view solely.
The worker has a capacity from a psychiatric point of view to participate in
retraining and New Employment Services.
He claimed he was suffering a range of psychiatric symptoms and could not
be employed.
That is simply not the case and he continued in various employments for a
couple of years. In due course that was found out in the worker was convicted
of fraud. In the meantime he had won a personal injury settlement against the
person who assaulted him, claiming severe psychiatric condition
consequential to the assault.
16
When I examined the worker there was no evidence of a psychiatric condition
related to the claimed assault. It was a heavy reliance on alcohol, which
appears to be less the case now. There has been deterioration in his personal
circumstances.
42. Doctor McIntosh in a report dated 9 June 2015 (Ex D 7) struck me as “covering his
bases” to coin a phrase, regarding the plaintiff. He wrote that the plaintiff:
…was probably a rather naive and somewhat socially awkward/somewhat
inept individual-who struggled thereafter to manage his symptoms in the
months after the assault.
I think it is only reasonable to highlight from my perspective, Mr Hosny seems
to have always been a relatively consistent historian-apart from conveying to
me with a great degree of accuracy-as to how many days he did
volunteer/work-after the original assault3.
My professional impression is that in the early weeks/months of his
unwellness Mr Hosny was significantly psychiatrically compromised. At my
behest, he did agree to try to go to work on a number of days, as it was my
fear that if he didn’t attempt to maintain some sort of work ethic-(and therefore
some sort of social contact close bracket- that he would continue his
downward spiral into more florid unwellness.
43. Not all of the reports relied upon by the plaintiff had been prepared in circumstances
where the author or treater has been unaware of the plaintiff’s fraud. In his report
dated 26 June 2015 Dr Stokes who is the plaintiff’s current treating general
practitioner wrote as follows:
“The report from Doctor Doherty, whom I gather has only met Joe on one
occasion, seems the sole basis for ceasing his claim. In the 5 years I have
been Mr Hosny’s GP, I feel he would not at any point have been fit to work in
any capacity. I see Mr Hosny 2 to 3 times per month in relation to his
WorkCover issue and his NIDDM. He is perpetually anxious and on edge. His
thought processes tend to be disorganised and chaotic. His short-term
memory is poor. Doctor Doherty states he could return to his pre-injury duties,
a suggestion I find difficult to conceive given Mr Hosny can barely remember
3 Presumably with “not” a great deal of accuracy
17
when he has an appointment to see me and has to be sent reminders as to
when to attend.”
44. Psychiatric reports from Dr Kaplan dated 17 May 2016 and 24 May 2017 were
additionally relied upon by the plaintiff. In the first of them and as a result of
examination conducted of the plaintiff Dr Kaplan referred to the following matters:
The account of the assault at work on 3 November 2017 the substantial
treatment under the care of the psychiatrist Doctor McIntosh commencing
February 2008
The plaintiff’s regime of medicines
45. In relation to the plaintiff’s work history since the assault Dr Kaplan took a history
from the plaintiff which whilst not on all fours with an account based on the
documentation, is pregnant with indications revealing the plaintiff’s vagueness and
that is consistent with the plaintiff’s presentation in much of his evidence before me
as is the plaintiff’s descent into panic attacks and that resulted in the plaintiff requiring
a break in his cross-examination before me.
46. Doctor Kaplan noted the plaintiff’s plea of guilty to one count of obtaining property by
deception arising from the receipt of weekly payments of compensation whilst
working during the time of the receipt of such payments. Dr Kaplan recorded the
plaintiff as having said that although he signed his certificates of capacity provided by
his GP he did not fill out the certificates and he cannot recall whether he told his
doctor that he was undertaking some work. This is consistent with the ultimate
evidence given by the plaintiff in the hearing before me. Doctor Kaplan recorded as
well that the plaintiff telling him that Dr McIntosh had encouraged him to perform
work. I have already referred to the incongruity and inconsistencies between Dr
McIntosh’s knowledge and encouragement to the plaintiff to do some work as best he
thought himself capable and his lack of knowledge about the actual work the plaintiff
performed.
47. In relation to the plaintiff’s current psychiatric condition and characteristic
symptomology associated with it, Dr Kaplan stated:
Mr Hosny said that he developed panic attacks after the assault and has
continued to suffer from panic attacks since then…The condition is triggered
by exposure to crowds, sudden loud noises or having to venture into
unfamiliar places. His condition has undergone some improvement and is
18
now able to use public transport could only do so during quiet periods, and for
that reason came to exhibit examination by taxi.… Mr Hosny reported that he
feels anxious “most time-I’m always anxious.” He is irritable and short
tempered and he commented “I wasn’t like that before”.
….
Mr Hosny stated that he suffers from insomnia. He commented “I’d be lucky
to get 4 hours sleep a night”
Mr Hosny stated that he has difficulty with his short-term memory and he
misplaces objects.
48. In addition Dr Kaplan referred to a number of other matters that had been prevailing
on the plaintiff’s life which contributed to his mental health including the relationship
with his wife deteriorating and ultimately ending, his homelessness prior to finding
and being placed in his Ministry of Housing accommodation, the circumstances
themselves of the litigation involving his assailant and the criminal conviction and
compensatory order and costs that attach to him.
49. Doctor Kaplan wrote:
Mr Hosny was traumatised by the frightening assault to which she was
subjected in the course of his work in 2007 and he developed Post-Traumatic
Stress Disorder. His condition has subsided since then although he still
experiences some traumatisation features including nightmares and intrusive
thoughts regarding the assault coupled with hypervigilance and a heightened
sense of vulnerability. It is difficult to predict the long-term prognosis of this
condition; however, he is likely to experience some persisting symptoms for
the foreseeable future, and any future experience was life is threatened is
likely to lead to an aggravation of his condition.
…
Mr Hosny is suffering from a Panic Disorder with Agoraphobia. This condition
was triggered by the assault and property occurred in the context of an
underlying vulnerability related to the loss of his mother during his late
childhood. Although this condition has undergone some improvement, he
continues to experience symptoms of at least moderate severity, and the
condition continues to have a major impact upon his lifestyle. The prognosis
19
of this condition is variable; however, it often runs a chronic fluctuating course
and can be aggravated by stress.
Mr Hosny also describes symptoms of depression and anxiety in this
condition is probably related to his post-traumatic stress disorder symptoms
and to the changes which have occurred in his life and his inability to lead his
normal lifestyle. His condition is therefore probably best characterised as an
Adjustment Disorder with Mixed Anxiety and Depressed Mood. He is likely to
remain prone to anxiety and depression as long as he is unable to resume his
normal lifestyle and while his collar quality-of-life remains compromised.
Mr Hosny currently has no capacity for his preinjury employment or any other
employment as a result of his psychiatric conditions. He appears to have
struggled with the limited employment in which engaged after the assault and
was unable to continue with that employment given the persistence of his
psychiatric conditions at his age, it is likely that his incapacity for work will
persist for the sustainable future.
With regard to the questions addressed to Mr Hosny during his cross-
examination before the Court on 26 April 2012, it is likely that he would have
struggled to respond thoughtfully and in a measured way under those
stressful conditions being cross-examined by a skilled barrister given his
psychiatric conditions, and in particular his anxiety, his difficulties with
concentration and memory, his loss of confidence, and his panic disorder. His
ability to analyse and respond thoughtfully to the questions in his cross-
examination would have been compromised. His underlying anxiety would
have been heightened in the circumstances and may have, at least in part,
undermined the admissions he made in evidence and to reason thoughtfully
when answering questions.
As part of his psychiatric conditions, Mr Hosny has difficulty with his memory
and concentration, he experiences anxiety, particularly in public places in his
lost confidence. These factors would all have compromised his capacity to
analyse questions addressed to him, make decisions in regard to those
questions, and provide considered evidence.
50. In a report dated 24 May 2017 following a further examination of the plaintiff on 18
May 2017 Dr Kaplan wrote that the plaintiff had commenced prescription of Lovan,
two tablets daily. In relation to psychiatric condition Dr Kaplan wrote:
20
Mr Hosny reported that he still suffers from panic attacks and he avoids
“going out at all costs and was I have to go”. He only ventures out to attend
appointments and for essential needs.
….
Mr Hosny stated that he still finds himself thinking about the assault and he
commented “that’s why I can’t sleep. I’m reminded of things I see on the
television”. He has nightmares about the assault which occurs several times a
week and which waking.
…
Mr Hosny stated that he still feels depressed and is often in tears. He
commented “I’ve got no confidence” he has experienced thoughts of suicide
and on several occasions in recent months he has called Lifeline.
…
Mr Hosny stated that he goes to a Community Centre on the ground floor of
his apartment block to watch television as it does not own his own television.
He has no friends and he feels lonely.
…
Mr Hosny stated that he has difficulty with the short-term memory and needs
to write reminder notes for self. His concentration is poor he commented “I’ve
got one interesting life and that’s the footy-and I can’t even do that-read about
the footy and that.
51. Dr Kaplan wrote that in his professional opinion:
Mr Hosny continues to suffer from symptoms which would properly qualify for
a diagnosis of Post-Traumatic Stress Disorder and his condition is related to
the assault to which she was subjected in 2007. He continues to experience
recurring nightmares and intrusive thoughts regarding the assault, he
describes the avoidance features and hypervigilance and he experiences a
heightened sense of vulnerability. Given the duration of his condition in the
failure of his condition to improve, his prognosis is likely to be unfavourable
and any future experience where life is threatened is likely to aggravate his
psychiatric condition.
21
Mr Hosny continues to suffer from a Panic Disorder associated with
Agoraphobia. As indicated in my earlier report, this condition was probably
triggered by the assault occurred in the context of an underlying vulnerability.
This condition does not appear to have altered significantly over the past year
and his prognosis remains as described in my earlier report.
Mr Hosny also continues to suffer from symptoms of depression and anxiety
and these symptoms are probably partly symptomatic of his Post-Traumatic
Stress Disorder and partly due to the changes which have occurred in his life
and his loss of quality of life. His condition is best characterised as an
Adjustment Disorder with Anxiety and Depressed Mood and is likely to
continue as long as he is unable to resume his normal lifestyle.
Mr Hosny’s capacity for employment remains as described in my previous
report. His psychiatric condition has had a major impact upon his social life,
recreational activities and his general quality of life and this impact is likely to
persist for the foreseeable future. It is likely to require a continuation of his
current treatment is treatment as long as he suffers from significant
symptoms.
52. The plaintiff was also examined at the request of the plaintiff’s solicitors by Dr Nathan
Serry who has provided two reports in close proximity namely a report of 24 August
2017 and 1 September 2017. In the first report Dr Serry, a consultant psychiatrist,
referred to a good deal of the documented history pertaining to the plaintiff arising
from the assault that occurred at the racetrack on 3 November 2007. Doctor Serry’s
history does not include the full sweep of employment on a casual basis the plaintiff
undertook after the assault but this absence of the full panorama of work has been a
common thread through the reported histories given by the plaintiff to his treaters. In
relation to his findings arising from his mental state examination of the plaintiff Doctor
Serry wrote:
Your client was an intense and highly anxious historian. He was able to
establish some eye contact but developed restricted rapport. He
demonstrated a reduced affective range and he appeared depressed and his
self-report of his level of anxiety was consistent with his presentation. He also
described panic attacks, irritability, significant avoidance behaviour and very
prominent post-traumatic anxiety features regarding the assault itself.
22
53. Doctor Serry diagnosed the plaintiff with chronic post-traumatic stress disorder and a
chronic major depression with anxious features and with features of panic. He
reported that the plaintiff’s condition is directly related to his employment with the
defendant. He regarded the plaintiff’s condition psychiatrically as having stabilised
but one that nonetheless will require ongoing expert management from his treating
psychiatrist “for the sufficient foreseeable future”. He opined that in consequence of
the plaintiff’s psychiatric condition “he has no capacity to perform preinjury duties, an
incapacity that is likely to be permanent”. He went on to express the opinion that in
consequence of the plaintiff’s psychiatric condition “he has no capacity to perform
suitable employment, taking into account his incapacity, age, education, place of
residence, skill and work experience”.
54. In his second report Dr Serry in response to being asked by the plaintiff’s solicitors to
comment on matters relating to the plaintiff’s ongoing casual employment from about
March 2008 until September 2009 and for a period of time working in a mailroom (the
period of approximately 2 weeks full-time work that the defendant has identified) and
his plea of guilty to the charge of obtaining financial advantage by deception in 2014,
he wrote:
I note the contents of the report of IME Associate Professor Doherty dated 20
April 2015. Associate Professor Doherty stated that at the time of his
assessment, he could not identify a diagnosable psychiatric condition and
said that the history of the claimed assault on the psychiatric symptoms
thereafter were not reliable.
I also note the enclosed report of Independent psychiatrist Doctor Stern, a
supplementary report in which he recommended a graduated return to work.
Whilst there is some dispute in relation to aspects of the history provided by
your client the vast majority of medical opinion appears to support the
conclusion that your client has developed a significant psychiatric condition,
not inconsistent with the diagnosis made by myself.
I would have such respectfully disagree with the conclusions reached by
Associate Professor Doherty in his assessment and confirm that my opinion
has not changed in any way from that expressed in my report dated 24
August 2017.
55. In relation to other material relied upon, I note that the defendant has provided further
affidavits from personnel including an affidavit by Leigh Saville an employee of the
23
Moonee Valley Racing Club who produced records of work undertaken by the plaintiff
consequent to his injury in particular from approximately 22 November 2007
concluding 25 August 2008. There was no work between 15 December 2007 and 25
August 2008 with the Mooney Valley Racing Club. In regard to the position relating to
the work undertaken, that being a casual operations attendant, the deponent wrote
that:
As an Operations Attendant his duties would have included greeting and
assisting all patrons, giving directional information to patrons as requested
and ensuring that only accredited members and patrons into certain areas on
race day meetings. This role involves working in and around large crowds and
requires a high level of customer service.”
56. Ms Saville acknowledged that she does not know the plaintiff personally.
57. The defendant also produced an affidavit made by the plaintiff’s previous General
Practitioner, Dr Frost. It was to Dr Frost that the plaintiff initially attended after the
assault at the track. He noted that he issued certificates of capacity certifying the
plaintiff unfit for any duties. He said he formed this view based on the plaintiff’s
presentation that he was unable to work together with information received by Ms
Mercuri who had been treating the plaintiff in relation to psychological wellbeing.
Doctor Frost was unaware of the extent of the casual work the plaintiff was
performing. In fact Dr Frost deposed that the plaintiff had told him that he had tried
one or possibly two shifts but could not cope and had gone backwards with his
condition and was unable to work. Doctor Frost states that had the plaintiff told him
that he was working in any capacity he would not have issued him with WorkCover
certificates certifying him unfit for any work at that time.
58. An affidavit to like effect was made by Dr Chaudary in regard to a certificate of
capacity he issued for the plaintiff on 29 July 2009. He deposed that had he been
made aware that the plaintiff had returned to any form of work he would not have
signed the certificate declaring the plaintiff unfit for all work. Another affidavit from yet
another practitioner Dr Uta was produced by the defendant and in respect of a
certificate of capacity provided on 2 September 2008 Dr Uta deposed that had the
plaintiff informed him that he was working in any capacity he would not have issued
the WorkCover certificate of capacity certifying him under fit for all work.
59. Doctor Entwistle deposed in an affidavit made for the VWA that at no stage during
any of his consultations with the plaintiff was he advised that the plaintiff had been
24
working and had he been advised of the same report “would have included that
information and I would have found that he had a capacity for employment”. The
Entwistle affidavit was made on 10 July 2014. Doctor Entwistle deposed that he
would not have found the plaintiff lacked the capacity for employment at that time.
60. The defendant as well referred to and relied upon the reports of Dr Stern. His reports
are substantially historical in nature and their probative worth in relation to the matter
I am called upon to determine is problematic. Nonetheless Dr Stern refers to the
following matters. In dealing with the plaintiff’s mental state examination he wrote:
When I asked about employment he said he was prepared to return to the
MCG within the next few weeks. He is also applied for mailroom admin jobs.
His put his name down with recruitment agencies. He was hopeful of the
future.
61. The defendant pointed to this account as reflecting an instance where the plaintiff
was prepared to give false and misleading information to his treaters. I accept that
submission. Be that as it may in the opinion of Dr Stern the plaintiff was at the date of
his report “suffering from post-traumatic stress disorder related to the assault at work
on 3 November 2007”. He expressed the view that the plaintiff’s employment is a
material and significant contributing factor. He went on to expressed the opinion that
initially the plaintiff was totally psychiatrically incapacitated but he was now fit for a
graduated return to work initially on his casual jobs including work with the VRC. He
was of the opinion that the plaintiff psychiatric prognosis is of continuing
improvement.
62. In Dr Stern’s report dated 30 September 2008 he referred to having received
additional information including a vocational assessment that identified employment
options as a mail and filing clerk, a ticket seller, a stock and purchasing clerk and a
car park attendant. Doctor Stern expressed the view that the positions identified in
the assessment report are suitable for the plaintiff and that he would be
psychiatrically fit to commence job seeking activities for these options.
63. In a third report dated 14 March 2012 Dr Stern was provided with a swag of
additional information including a substantial number of reports from Dr McIntosh
embracing the period from 29 February 2009 until 28 April 2011, together with
reports from Miss Mercuri, Dr Berkowitz and others . On examination after dealing
with and addressing the plaintiff’s psychiatric symptoms and his present complaints
of depression and anxiety, disturbed sleep, lack of energy and distressing
25
recollections of his assault, Dr Stern summarised his findings. These findings
included that as a result of the assault the plaintiff developed chronic post-traumatic
stress disorder. He was of the opinion that there has been a deterioration since his
previous examination of the plaintiff in June 2008 and that the plaintiff’s depression is
now the level of a major depressive disorder. He concluded that the plaintiff was
psychiatrically incapacitated for all work including his preinjury duties and hours or
alternate suitable duties and hours. And that the incapacity for work is now “probably
indefinite”.
64. In an affidavit made by Dr Stern for the VWA in July 2014 he deposed that at no
stage during his consultations with the plaintiff did the plaintiff advise him that he had
been working and had that been known to him his report would have included that
information and “he would have found that he had a capacity for employment at that
time”.
65. Doctor Paul Kornan is a psychiatrist. His report is dated 3 April 2009 and was made
following examination of the plaintiff on 25 March 2009. He wrote that in overall terms
the plaintiff psychiatric state is “marked, and significant.” He believed the plaintiff was
currently totally unfit for employment and was doubtful he would return to the
workforce.
66. I was provided as well by the defendant with vocational assessment report of
September 2008. I have already in passing referred to it in light of the identified
positions being mentioned in Dr Stern’s report. The vocational assessment is of little
if any current value.
67. The substantially contradictory opinions as to the plaintiff’s current condition finds its
high-water mark in the opinions and evidence of Associate Professor Doherty.
Associate Professor Doherty is the outlier amongst the persons who have attended
to the plaintiff certainly in so far as he has expressed in his reports, and continued to
press in his oral evidence before me, a somewhat reluctant acknowledgement that
the plaintiff perhaps even suffered the assault in the first instance for reasons that
include a lack of apparent physical evidence of the same as reported by the St
John’s Ambulance Doctor. Furthermore Associate Professor Doherty’s evidence both
in his written reports and his oral evidence is heavily weighted against any aspect of
the plaintiff’s diagnosable condition reached by other treaters being accepted due to
the plaintiff’s fraudulent and criminal conduct associated with his limited period of
work in receipt of WorkCover payments. I do not overlook the fact that associate
26
Professor Doherty said in his evidence, consistent with his written reports, that on his
examination of the plaintiff there were no observable signs of symptoms on
presentation upon which others have placed reliance. I am unwilling to give
determinative weight to Associate Professor Doherty’s one occasion of examination
of the plaintiff in preference to the many assessments and opinions expressed by
others who have seen the plaintiff more often but, in particular, Dr McIntosh. In those
instances where these doctors have moderated their opinions it has been because of
the plaintiff having worked at times when they had certified his psychological state as
precluding him from doing so. It should not assumed that I found Dr McIntosh’s
evidence entirely satisfactory. I have already identified some difficulties associated
with his evidence such as the opinion about the time of the upward trajectory of the
plaintiff’s PTSD that coincided with the period of work the plaintiff was performing on
a casual basis and his period of two weeks apparent full-time employment.
Nonetheless standing against this is that Dr McIntosh has expressed the view that
although the plaintiff’s mental state has stabilised to some extent, the characteristics
attended on his diagnosed state remains such that they would preclude him from any
work capacity. On balance, and overall, I accept Dr McIntosh’s opinion and indeed
the opinions of other independent medical examinations relied upon by the plaintiff
who confirm Dr McIntosh’s view of the plaintiff’s condition.
27
The Law
68. The legislative framework makes allowance that an injured worker is entitled to
receive weekly payments of compensation after the expiry of the second entitlement
period (130 weeks) if he has “no current work capacity” and he is likely to continue
indefinitely to have no current work capacity. Accordingly payments of weekly
compensation cease unless the worker can establish that that he has no current work
capacity and that such a state of affairs is likely to continue indefinitely.
69. “Current work capacity” in relation to a worker, means a present inability arising from
an injury such that the worker is not able to return to his or her pre-injury employment
but is able to return to work in suitable employment.
70. “No current work capacity”, in relation to a worker, means a present inability arising
from an injury such that the worker is not able to return to work, either in the worker’s
preinjury employment or in suitable employment.
71. The language of s 5(1) of the ACA directs me to have regard to “the nature of the
worker’s incapacity and the details provided in medical information including, but not
limited to, the certificate of capacity supplied by the worker”. That definition is
sufficiently encompassing as to allow me to have regard to and give weight where
appropriate to the plaintiff’s previous conduct in considering the nature of any current
and ongoing incapacity. I have in the foregoing passages endeavoured to convey the
fact that I have considered the plaintiff’s previous dishonesty.
72. Relevantly “suitable employment” in s 5(1) of the ACA is defined as follows:
Suitable employment, in relation to a worker, means employment in work for
which the worker is currently suited –
(a) having regard to -
(i) the nature of the worker’s incapacity and the details provided in medical
information including, but not limited to, the certificate of capacity supplied by
the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
28
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning
process; and
(vi) any occupational rehabilitation services that are being, or have been,
provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally
available in the employment market;
73. The parties did not address these provisions but I do have before me some evidence
that falls to be considered in light of them and I should make reference to it. I regard
the plaintiff’s condition of PTSD and the manifestation of the same in terms of
symptoms such as anxiety, panic attacks, isolation, fear of open spaces and crowds
and the use of public transport as relevant to the overall consideration of the question
of the concept of him being able to undertake suitable employment. The nature of the
plaintiff’s pre injury employment would be unsustainable in light of his condition. The
fact that work of the type that had been performed preinjury by the plaintiff being
performed on a casual basis for a period in 2008 to 2009 is relevant but overall it
does not diminish my judgement that that there is no suitable employment. The work
that he did casually perform in 2008 at the MCG was work that was moderated to
better isolate the plaintiff according to the affidavit of James. The plaintiff’s age tells
against suitable employment. His experience and capacity in spoken and written
English and the array of work skills collected over his pre-injury working life are
objective achievement by him that should stand him in good stead but the capacity
for the plaintiff to deploy these skills in a work place has been eroded by reason of
the effects of his work injury. The worker’s place of residence is a matter of neutrality
because in the absence of any identified positions or the geographic region in which
they might be thought to exist, I am unable to form a judgment. There was no pursuit
by the defendant in the evidence to have me take regard to any plan or document
prepared as part of the return to work planning process and neither was I directed to
any occupational rehabilitation services that are being, or have been, provided to or
for the worker.
29
The suitable employment test
74. In Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622, the Court of Appeal said:
The concept of ‘suitable employment’ will, of course, give rise to difficulties
from time to time, but the thrust of the definition is plain enough. It looks to the
possibility of employment after injury; and hence the reference to ‘work for
which the worker is currently suited’. Age, education and experience are
among the matters relevant, as are also the nature, and no doubt the extent,
of the workers incapacity and, of course, preinjury employment. Obviously
employment is not to be regarded as ‘suitable’ if situated too far from the
worker’s place of residence; … The expression “whether or not that work is
available” emphasises that the definition is looking at the capacity to work,
meaning that physical capacity for employment. If the worker is of an age, is
sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is
able physically to do a particular job, and that his “suitable employment”
whether or not the job is currently available.
75. In Manthopoulos v Spencwill Nominees [26 April 2012] His Honour Magistrate
Garnett said:
It is still necessary for the court to determine whether the suggested
employment exists, to analyse the employment requirements from the
physical, and if necessary, a psychological aspect and to apply the relevant
matters as set out in the definition of suitable employment in s 5. After
undertaking this analysis, applying “a degree of realism” and after
disregarding industrial factors, a determination can be made as to whether
the worker has a capacity for “suitable employment”. Furthermore, when
considering whether a worker has a capacity for “suitable employment”, the
suggested suitable employment needs to be analysed by specific reference to
the particulars of the job, the medical restrictions on personal characteristics
of the worker in addition to the factors set out in the definition.
76. The plaintiff need only establish a prima facie case that no suitable employment
exists. In such a situation he will then be entitled to succeed unless I am satisfied that
the defendant has produced evidence sufficient to raise some specific alternatives for
consideration. In my view, and being realistic, the defendant is required to adduce
evidence sufficient to give rise to a real possibility that there are particular types of
30
employment available in the community which the plaintiff is capable of performing.
Thus there arises an evidentiary onus on the defendant. Largely speaking the
matters will be factual in nature and fall to the defendant to adduce. That has not
occurred.
77. I note too the statements by His Honour Judge GD Lewis in Holt v Kleyn Plant Hire
Pty Ltd (unreported County Court) when he said:
However, employment, even of the lightest kind must involve punctuality,
regular attendance and consistent capacities to the work required. The
plaintiff is adamant that on his ‘bad days’, which he experiences with
regularity, he would not be able to cope with any realistic employment.
78. In my opinion, and lest it be thought that I have overlooked the work of the type
identified in the historical vocational assessment the defendant tendered, I would not
regard them as “suitable employment” and they are not realistic in light of a
consideration of the evidence relevant to the factors set out in s 5 of the Act.
79. I have been provided with reasons for decision of Courts who have had the plaintiff’s
circumstances before it and transcript. Some of the reports were furnished upon the
provision of the same to the authors of them. I have been directed to parts of the
same and given reference to transcript. Their probative worth fall to be considered in
the manner in which I have already weighed the plaintiff’s prior dishonesty. It is
sufficient to say that this conduct has not dissuaded me from finding that the
plaintiff’s work injury no longer materially contributes to his current and indefinite
incapacity. There are other influences that contribute to his state but the fact that
other facts are in play will not defeat the claim so long as the work injury remains
material. In my judgment for the reasons expressed I am satisfied that it does.
Material contribution
80. I am satisfied that the plaintiff has no current work capacity and I am satisfied by way
of proof on the balance of probabilities that the incapacity is a material contribution to
that incapacity in the sense material connotes anything above de minimis (see Lord
Reid in Bonnington Castings Ltd v Wardlaw [1956] A.C. 613.
Conclusion
31
81. It is difficult to reject the notion that had the plaintiff not engaged in his previous
dishonesty that he would have been highly unlikely to have been met by the notice of
termination that has led to this three day hearing. The medical evidence, save for the
opinion of Associate Professor Doherty, diagnoses a recognisable injury described in
one form of language or another as a combination of symptoms of PTSD with a
depressed mood and anxious disorder and the effects of it are sufficiently disabling to
permit of the characterisation required of the plaintiff under the Act that enables me
to conclude that the plaintiff has discharged his burden of proof and the notice must
be set aside.
82. I will hear the parties as to the final form of order and of costs.
top related