Compensation Court of New South Wales CITATION : Cohen-Young v Department of Juvenile Justice [2001] NSWCC 192 PARTIES : Lisa Cohen-Young Department of Juvenile Justice MATTER NUMBER(S) : 46027 of 2000 JUDGMENT OF: Geraghty J CATCHWORDS: Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/05/01,14/06/01 EX TEMPORE JUDGMENT DATE : 06/15/2001 FOR APPLICANT: Mr G J Maddocks instructed by Peninsula Law appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T A Gotterson instructed by Moray & Agnew appeared for the respondent. JUDGMENT: 1. Lisa Cohen-Young claims weekly benefits from 12 April 2000 to date and continuing (though her daughter was born in May 2000, which would mean she was unavailable for work for at least some few months thereafter). She also claims payment of medical expenses and interest on the accrued weekly benefits. 2. She had based her claim on an injury between March and April 1998, it being conceded by the respondent that her hepatitis C condition is work-related. Consequently any stress or psychological injury arising as a result would also be work-related. 3. The respondent also agreed that any medical expenses for treatment of the hepatitis C and for any related psychological injury would be paid. 4. The issues for determination were as follows: firstly, the respondent alleged there was no incapacity arising from the hepatitis C condition after April 2000 (12 April being the date on which weekly benefits ceased); secondly, the respondent also placed in issue the question of the causation of any present incapacity, alleging that if Cohen-Young is incapacitated, it is for reasons other than her hepatitis C and any related stress, and more particularly because of family and financial problems. Finally, the respondent also pleaded the provisions of s 9A, though no submissions were made on this question, or on s 11A relating to reasonable disciplinary action. 5. In October 1999, Cohen-Young was charged with a number of criminal offences, including breaching an AVO, assault, malicious damage, malicious wounding, as well as driving under the influence. Her counsel submitted that while there might not be a causal relationship between the hepatitis C condition leading to the criminal assault, at least there was some relationship, namely the hepatitis C put pressures on the relationship with her de facto husband, which in turn led to further stresses for which she continued to be treated. 6. Cohen-Young was employed in about October 1996 as a casual senior youth officer in the Department of Juvenile Justice. When she began on an on-call basis with some rostered shifts, her salary varied according to the work she was doing, but it would seem she averaged about $910 per week as shown in the schedule of earnings (Exhibit B). She had suffered some depression in 1993 when her marriage had failed. This problem had lasted for about six months and had been treated by her general practitioner, Dr Evershed, with medication. 7. In 1996, at about the same time as she began working for the respondent, she began a de facto relationship with Peter Siemen. Her duties as a youth officer included safety and security measures, resolution of conflicts between the inmates of a juvenile justice establishment, supervision and implementation of programs, and the care of serious criminal young offenders. Between October 1996 and March 1998, she had daily physical contact with the interns, supervising their sport and playing games such as soccer and touch football. She was also often required to break up altercations between inmates, sometimes to physically restrain the detainees, and to care for those who had self-mutilated. 8. In about April 1998, she was complaining of acute nausea and vomiting with extreme fatigue; her urine was coloured. She was diagnosed as having contracted hepatitis C, and the respondent now agrees she contracted this at work. She took some time away from work (about two weeks) and returned to looking after a detainee who had contracted both hepatitis B and hepatitis C. In June 1998, she had some further time off. Exhibit A is comprised of a series of WorkCover certificates for the period between May 1998 and April 2000. 9. I asked counsel to prepare a schedule of the certificates setting out when the applicant was unfit for any work, when she was fit for only selected duties, and when she was certified as being ready to return to work. The schedule was not marked as an exhibit and I note that to a large extent it is inaccurate. For example the certificate marked 5 certifies the applicant unfit for work on 30 November 1998, but ready to resume pre-injury duties on 2 December 1998. Certificate marked 6 certifies her as unfit for work on 29 December, but fit to resume pre-injury duties on 5 January 1999. Certificates marked 23, 24 certifies the applicant unfit for work on a certain date, but does not specify any period. Certificate marked 48 certifies that she was unfit to work with detainees. The certificates are inadequate for the purposes of establishing fitness or inability to work. 10. In May 1999, Cohen-Young's relationship with Peter Siemen ended, apparently with violence on both sides. She was away from work in June, suffering vomiting and nausea, with severe depression and anxiety. She returned to work on a graded program, to her pre-injury duties, by the end of July 1999. Between May 1998 and June 1999, when she was at work, she was looking after a high profile client who had himself contracted hepatitis B and C. She thought she was given these duties because of her own health status. 11. In September 1999, Cohen-Young was offered a temporary permanent position as a clerk in the McCabe Cottage, where she agreed to accept to work for six months. She had no contact there with detainees. She was involved mainly in clerical work, retrieving records and forwarding them, updating computer records, typing and filing. She was charged with criminal offences in October 1999 (the offences to which I have already referred). She pleaded guilty, and was placed on suspension at work when she informed the respondent. She has been paid compensation to 12 April 2000. Since that time, she said, she has suffered major depression; she has been admitted to hospital and received treatment (as will appear from the medical records). She has, for example, undergone 15 applications of electro-convulsive therapy. 12. In May 2000, the applicant gave birth to her daughter, Keira. In August 2000, she began her employment with a building firm at Umina, working one day a week between January and February, receiving $90 per day. She said she thought she would be able to do this work full-time if it was available. She also has had quite extensive experience as a legal secretary and senior word processing operator. She has worked for several legal firms, doing typing and being involved in client relationships. She agreed that with some re-honing of skills, she would be able to do this type of work full-time. 13. The applicant made two unsuccessful suicide attempts, in November 1999 and January 2000. She said that the deterioration in her mental condition in November 1999 had been the culmination of life experiences. Things were getting her down; she complained that she had lost her self-confidence; she was not working; she was suffering insomnia and anxiety; her relationship had collapsed because her de facto husband had on occasions referred to her as a disease-ridden whore. She said she had concerns that the baby would contract hepatitis C. She agreed that her relationship with her de facto had always been stormy, and in September to October 1999, she described the relationship as horrific. She had no hesitation in conceding that the break-down of her relationship had exacerbated her problems, though she said that the fact that she had a potentially fatal disease had continued to create tensions and anxiety. She agreed that, from at least three or four months after May 2000 (when her child was born), she would be able to do the duties which she performed at the McCabe Cottage. 14. Before I turn to the medical evidence, I should observe that from the applicant's demeanour in the witness box, I concluded that she seemed to be a strong, positive, definite, confident young lady who was uncommonly capable and enjoyed a range of experience on the open labour market. At the end of her evidence I observed to her that she seemed to have a lot of experience, and she said I certainly have. [Tran. P.16] Q. By and large, some of them are quite stressful jobs, working in a solicitor's office is quite stressful, for a partner. I must say, you look to me today to be a capable, positive, confident young woman, is that how you feel? A Sometimes. Sometimes I do, sometimes I don't and sometimes I put up a bloody good front, sir. Q. You look to me to be coming out of the clouds - much better than the story that you have been telling me about. A. I'm a lot better than I was. I'm a lot better than I was in 1999. I'm a lot better than I was when I first found out that I had hepatitis C and I do have periods where I suffer very deep depression and I have periods where it's alleviated. Q. When was your last deep depression? A. January and February of 2001. It was very bad and I have had periods from then where I have felt all right for weeks and then I felt very bad for a few weeks and then it gradually gets better and then I slip back, I get better and I slip back. The Medical Evidence 15. This is a stress or psychiatric claim, based on stressors relating to hepatitis C. 16. Dr Dwyer (Exhibit K) examined Cohen-Young in May 2001. He stated in his report that the employer had accepted that the hepatitis C infection was contracted as a result of her work at the Juvenile Justice Centre. He observed that the psychological background was complicated. Others more expert than he had commented on her pre-morbid personality and on the difficulties she had experienced, and on the psychological difficulties which had been compounded by the diagnosis of her hepatitis C infection: Certainly I believe that her major depression and some of the problems that she was having with her de facto partner were contributed to in a major sense by her struggle with the diagnosis of a chronic incurable infection. 17. He went on to observe that it was important to note her liver function tests had been normal for some time, that using the latest, very sensitive technology, there was no detectable hepatitis C virus in the bloodstream. He said it was in fact possible that she had cleared the virus from her liver. He observed that she needed the active psychiatric treatment she was getting at the moment. Though I note that the doctor's report is dated 30 April 2001, and in the body of the report he said that he interviewed Cohen-Young on 18 May 2001 (which does not seem to be possible), in any event as at both dates, the applicant had had no active psychiatric treatment for quite some time, at least since November 2000. 18. Dr Dwyer observed that from a physical point of view, the applicant was well enough to work and indeed could return to her former occupation, though she was troubled by the risks involved by others working with her, and indeed to the inmates she would be caring for: With her knowledge of her infection, these risks are extremely small, but I would doubt if her psychological status would make her suitable for that type of work again. 19. The treating psychiatrist was Dr David Butler. His reports are (Exhibit G). He began treatment in February 1999 which, it would seem, continued until about August 2000 when the applicant concluded her series of electro-convulsive therapy. 20. In his report of March 1999, Dr Butler observed that his patient's sleep had decreased and her appetite had also been very poor since May 1998. She had lost about 9 kg in weight. He observed that she appeared very depressed, at times uncontrollably tearful, and that she still had suicidal ideation. Dr Butler diagnosed a chronic major depression which had been present since May 1998 and to which her employment had been a substantial contributing factor. This depression was a reaction to the hepatitis C virus and to the disability and stigma associated with it. 21. In his further report dated April 1999 and which confirmed the diagnosis of chronic major depression, he observed that Cohen-Young had been trying to continue at work despite her persistent depression, and that over the previous couple of months the depression had been so severe she had to go off work. He provided information as to the medication the applicant was taking and observed that she had gradually been improving over the previous few weeks, that she hoped to return to work within the next month. 22. He noted however that the situation had been further complicated by an assault by her boyfriend a couple of weeks previously. When I saw her most recently on 20 April, she did appear brighter in her mood than previously. 23. However, in his report of December 1999, Dr Butler recorded a serious suicidal attempt and that on 7 December, he was told she had discovered she was pregnant. In the report of January 2000, he recorded frequent suicidal ideas, frequent headaches and poor sleeping patterns. In March 2000, a recording of six ECT treatments. Although she was much less depressed than previously, she still felt depressed at times and had recurring suicidal ideas. This is the last dated report from the treating psychiatrist, now well over a year ago. It would seem there was a pattern of improvement, beginning in April 1999 and continuing in March 2000, though her treatment continued so that a series of 15 ECT was completed in about August 2000. 24. Mr Peters, consultant psychologist, examined the applicant in June 2000, 12 months ago. His report is (Exhibit J). He said that when he saw her, Cohen-Young appeared quite anxious and depressed. From a number of tests he concluded that she was suffering a major depression disorder and a generalised anxiety disorder, though I note that Dr Lovell, while accepting the first element of the diagnosis, rejected the second. Mr Peters observed that, given the history and personality style, he would not conclude that the applicant's depression was solely due to her contracting the hepatitis C virus. However, he thought the infection had significantly and materially contributed to the level of her depression and had thus lead to the development of a major depressive disorder. He believed also that the high anxiety levels were related to the problems she had and will continue to encounter as a result of being infected. He thought the prognosis, at least in June 2000, was unfortunately quite poor. 25. The most recent report is that of Dr Derek Lovell (Exhibit 1), who examined the applicant in May 2001. When she presented to him, she denied symptoms of depressed mood. Her appetite and weight were stable. She appeared to be a cheerful, cooperative person. He observed that she was an organised historian who spoke at a normal rate. She was not tearful or anxious, and spoke forth-rightly. She seemed to have no difficulties with concentration or memory, although she did apologise for lapses and related them to the ECT treatments, the last of which, he said, occurred in August 2000. Dr Lovell concluded that Cohen-Young's depressive illness was in remission. He observed that she had had a previous history of depression which had been treated by her general practitioner in 1993; that she had been diagnosed with hepatitis C, and that it was not uncommon after a viral illness to experience major depression. He also recorded a detailed history of an acrimonious break-up of a three year old de facto relationship. 26. Dr Lovell thought that it was likely that the applicant's present illness, initially related to hepatitis C infection, had been prolonged by psychological factors, in particular her pessimism about the prognosis of her condition. The de facto relationship and its break-up was, in his opinion, a major contributor which had led to her being charged. He thought she was fit to return to work at the Juvenile Justice Centre if the position was available. He noted that she had not contacted her psychiatrist since November 2000. 27. The respondent submitted that, while the hepatitis C condition was work-related and the employer had accepted liability, there had been no physical incapacity, except maybe for a short period after the diagnosis, and for a longer period, some psychological incapacity. Cohen-Young had been rehabilitated, and by September 1999, the respondent submitted, she had been ready to return to work. This can be seen, Mr Gotterson said, from p.10 of the transcript. She had returned to work in September 1999, to night shift duties which were less onerous and less dangerous than her work with the detainees during the day. He submitted that her move to the McCabe Cottage had been a voluntary move for six months, and that the assaults and the charges in September 1999 had resulted in further major depression. Consequently, he submitted that there were supervening events which were not related to work and which were causative of the major depression.. He said that the applicant had been getting better as at September 1999, that it was highly likely she would have been completely better from the work-related injury by April 2000. He submitted further that there was no evidence that the psychological illness resulting from the hepatitis C would have continued beyond April 2000, that all evidence tended to the other conclusion. Then an assault occurred which created further problems. So, in so far as any depression was continuing, it was related to the charges, the assaults and the termination of her employment as a result of this. 28. The applicant on the other hand, submitted that because of the contraction of hepatitis C, she had suffered psychological injury, and that the symptoms arising therefrom had continued. Mr Maddocks submitted that this was not a case in which s 11A provisions apply, because the psychological injury did not arise from any disciplinary action by the employer, it arose from the stresses created by contracting hepatitis C. It is clear that after she learnt of the diagnosis of hepatitis C, there had been a clear change in her health, in her personal relationships and in her mental stability. First of all she was worried and, it would seem, embarrassed about this condition. When she learnt that she was pregnant, she was concerned that her child might also have contracted the virus. There were significant stresses and conflicts occurring within her de facto relationship with her husband referring to her as a diseased whore. She was also concerned, it would seem, about her ability to establish any permanent relationship in the future. Q. Prior to that, needless to say that the relationship with your de facto was not good at all. A. No. Q. Had not been so for some period of time. A. It was quite a stormy relationship and it hadn't been perfect and it escalated from 1998 until 1999 as being horrific. Q. So suffice it to say that at the period of time around September, October 1999, you were very psychologically affected by that relationship. A. I was already psychologically affected due to my hepatitis C and the severe depression I was suffering and the breakdown of my relationship exacerbated. [Tr. P.11] 29. I accept that at least for some period of time, the diagnosis of hepatitis C created stressors in the applicant's life. It seems to me that she was improving considerably by the time she ceased treatment with Dr Butler in August 2000, and that she continued to improve so that when I saw her on 15 May 2000, she was as I have already observed (and my observations have been recorded on the transcript at page 16). She had had no treatment since at least November 2000. There was no up to date report of any treating psychiatrist or any treating doctor. The only up-to-date evidence came from Dr Lovell which asserted her depressive illness was in remission and that she was ready to return to work. It seems to me, on the evidence, that the applicant was partially incapacitated from the date when compensation payments ceased on 12 April 2000 until some time before 15 May 2001, and I nominate that date because that was the date on which I saw her and around the date on which Dr Lovell examined her. 30. I note that the wage schedule reflected a probable weekly earning, but for the injury, of $910 per week. She has been working and agreed that she would be able to work at McCabe Cottage where she earned $380 per week net, which would translate into something like $500 per week gross. She also worked at G R and K A Glue, earning $90 per day, or $450 per week, and she agreed she would be able to work there full-time. I do not think that this amount truly reflected her ability to earn. I think she has a greater ability to earn than this, particularly in secretarial work where she has had quite extensive experience. I believe she would be able to earn about $600 per week. 31. I propose to exercise a discretion to reduce the mathematical difference for the period from April to 31 July 2000, because the applicant was at that stage pregnant for a month and gave birth to her daughter. She would have been unavailable for work, at least until the end of July. 32. I propose also to decrease the mathematical difference (but to a less extent) from 1 August 2000 to 15 May 2001, because of the charges which resulted in her losing her job with the respondent. But for that, she could have worked on and earned an amount of money. She was during this period incapacitated partially, but in the exercise of my discretion, I believe some deduction should be made to reflect the loss of opportunity of employment because of those serious charges of assault and driving under the influence, breach of AVO and malicious damage. 33. I make the following findings and awards. 34. (1.) I note the respondent has agreed that the condition of hepatitis C was work-related as at April 1998. 35. (2.) I find that at all material times the applicant had one dependent child. 36. (3.) I note that she has been paid her weekly benefits until 11 April 2000. 37. (4.) I find that she was partially incapacitated from before 12 April 2000, until 15 May 2001. 38. (5.) The probable weekly earnings, but for the injury, had she continued to be employed in the same or some comparable employment, were $910 per week. 39. (6.) I assess the sum of $600 per week as the average weekly amount she was able to earn in some suitable employment, that is in the general labour market reasonably accessible to her. 40. (7.) Having regard to the circumstances, I reduce the mathematical difference to $150 per week for the period from 12 April 2000 to 31 July 2000, and reduce the mathematical difference to $260 per week from 1 August 2000 to 15 May 2001. 41. I enter an award in the sum of $150 per week from 12 April 2000 to 31 July 2000, and $260 per week thereafter until 15 May 2001. 42. I order interest to accrue at the rate of 4 per cent on the total amount due from a date to be agreed, that being the date on which the claim was made. 43. I order the respondent to pay the medical expenses relating to the hepatitis C condition and the ensuing psychological injury, and I order the respondent to pay the applicant's costs. Mr G J Maddocks instructed by Peninsula Law appeared for the applicant. Mr T A Gotterson instructed by Moray & Agnew appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.