Tatar v Fastform Ac Pty Ltd [2001] NSWCC 69 (9 April 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Tatar v Fastform AC Pty Ltd [2001] NSWCC 69


PARTIES:
Semsudin Tatar
FAstform AC Pty Ltd (Dolso Fastform Group of Companies)


CASE NUMBER: 45073 of 2000 of 2001.00


CATCH WORDS: Assessment of Compensation


LEGISLATION CITED:


CORAM: Burke J

DATES OF HEARING: 28 March 2001

EX TEMPORE DATE: 09/04/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr J E Keesing instructed by Martin Bell & Co
FOR RESPONDENT: Mr G J Parker instructed by Dexter Healy


JUDGMENT:

1. Mr Tatar seeks orders pursuant to s 60 in respect of some specified medical expenses, particularly $2,801 in respect of treatment rendered by Dr Zepanica clinical psychologist and an amount of $724.50 in respect of treatment rendered by Dr Mark Marinkovich, the applicant's general practitioner. This all arises out of an injury on 8 October 1999 when the applicant was patching a ceiling. There being some shortage of proper scaffolding, he was standing on a chair - overbalanced from that and happened to be proximate to some steps and went down the steps as well. This, the applicant deposes, caused him a whole series of problems.

2. He was back into Royal North Shore Hospital certainly complaining of something or other. His back pain - he saw Dr Sorani on the follow day, 9 October, was sent off by him for a CT. Dr Sorani had apparently been his general practitioner but the applicant speaks Macedonian, came from Bosnia, did not converse readily with Dr Sorani so on 15 October he went and saw Dr Mark Marinkovich, fluent in his own dialect and he has continued to see him since. Dr Marinkovich referred him to Dr Maniam, an orthopaedic surgeon, referred him to Dr Milder, a neurologist, and also referred him to Dr Zepanic, the clinical psychologist, whom he first saw quite promptly on 29 October 1999 and continued to see him at intervals thereafter. On 15 October 1999 when Dr Marinkovich was consulted he records the applicant's then complaints after this fall and cascade down the steps. He complained of headache, dizziness, vertigo, loss of balance, poor concentration, forgetfulness, blurred vision. Then we get to pain and stiffness in the neck, dorsal and lumbar pain, pain and stiffness of both shoulders.

3. The first series of recorded complaints tend to suggest more than a physical problem though the applicant did hit his head. Indeed, that is why he was sent to Dr Milder and Dr Milder formed a view that he had a post-traumatic migrainous-type headache from the fall. The applicant, not improving after he first saw a G. P.he was referred off to Dr Maniam for orthopaedic advice and then to Dr Milder and got the advice that he had a post-traumatic migrainous-type headache and, as Dr Marinkovich then says, "The applicant was displaying signs of severe anxiety and depression so I referred him to Dr Zepanic". He referred him to Dr Maniam about his back, neck and other complaints, to Dr Milder about his headaches and associated complaints and he referred him to Dr Zepanic about what he thought to be more psychogenically determined complaints.

4. The applicant saw Dr Maniam on five occasions from 26 October 1999 to 24 March 2000. Dr Maniam's evaluation of the situation includes the assessment that an anxiety state suffered by the applicant was lowering his pain threshold and rendering the physical problems more intrusive and indeed he thought it was desirable that he have counselling by a psychologist. In other words, he agreed with what Dr Marinkovich had already done. He saw Dr Bleasel, for instance, qualified on behalf of the applicant, on 31 August. That is about his back, neck and whatnot but inter alia Dr Bleasel says he should continue to see Dr Zepanic.

5. Dr Wilding, seeing him for the respondent, on 18 January was of the view that there was also a non-organic component to his symptoms. While he assessed an impairment of the back, an impairment of the neck, he emphasised that there was this non-organic element in respect of which of course he was seeing Dr Zepanic. Dr Lethlean also saw him for the respondent on 8 October 2000. He commented that the physical basis of continuing symptoms and restrictions is not evident but his diagnosis includes anxiety, depression, motivational difficulty the resolution of which would be necessary for him to resume work. In other words, Dr Lethlean thought he had a psychogenic problem impinging upon his capacity to work. Dr Zepanic himself, when he first saw him, said there was a somatisation. The applicant was producing physical symptoms by psychogenic causes.

6. There was a moderately severe depression but interestingly he had a normative level of anxiety which he goes on to explain anybody with a back neck orthopaedic problem will always get a bit anxious about it and this fellow was no different from most of them. He had a fairly normal level anxiety but he did have a moderate to severe depression. He was also complaining of headaches, nausea, vertigo, blurred vision, inability to sit up, photosensitivity, audiosensitivity. He did not like noise either and it was in respect of this constellation of symptoms that Dr Zepanic was rendering his treatment. Dr Roberts, seeing the applicant for the respondent, negates anxiety, went through the whole list of the physiological accompaniments of a state of anxiety et cetera and negates them all, the first one being, I think, headache and all that sort of thing this fellow complained to everybody else about but Dr Roberts does not really deal with the thrust of Dr Zepanic and Dr Maniam, that the man had a depressive reaction rather than an anxiety state.

7. Mr Gubbay or Dr Gubbay is another clinical psychologist seeing the applicant on 24 October 2000 which incidentally is after treatment by Dr Zepanic had ceased, the applicant saying, "I felt okay". I do not think he was actually feeling A1 okay 100 per cent but he certainly ceased seeing Dr Zepanic because he regarded himself as having benefited by his treatment and at least it resolved substantially. Dr Gubbay says he has no evidence of any impaired functioning resulting from his reported emotional state on, at that stage of the game his emotional state had essentially resolved. The applicant says he is physically unable to work. In other words, not because of any emotional state, probably at that stage it may be so though I would tend to think there is an ongoing psychogenic element to the applicant's complaints. That might be a bit unfair to the applicant.

8. He has not been cross-examined or anything to that effect but be that as it may. So it just comes down to the fact that both Dr Gubbay and Dr Roberts are seeing the applicant at a time when the applicant himself has asserted that he was feeling fine as far as the emotional problems were concerned. He still had a sore back and a sore neck and whatnot. The only argument is the reasonable necessity of the medical treatment. The respondent took the point that he was not referred to the clinical psychologist by a psychiatrist. I know of no legal principle that only a psychiatrist can or should refer a patient to a clinical psychologist. Dr Marinkovich did it and in that he has the blessings and benedictions of a couple of other specialists, not in that field but that is by the board. I do not think there is any substance in the fact that a implicit suggestion that a general practitioner in the interests of his patient can refer him to an orthopaedic surgeon, as Dr Marinkovich did, to a neurologist, as Dr Marinkovich did, but not to a clinical psychologist. That, I think, is an unsustainable proposition.

9. Actually, the bases on which the respondent objected are a little bit diffuse. Usually, if there is a question as to whether or not particular expenses are reasonably necessary having regard to the injury the first question is, "Was there a relevant condition to be treated?" Of course, you cannot very well reasonably contend that the applicant did not have such a condition at the time at which he was being treated by Dr Zepanic. Was the treatment directed to alleviating or remedying that condition? Dr Zepanic says that is exactly what he was trying to do and the patient says that is exactly what he substantially achieved. Third question is usually, "Well, was the treatment appropriate?" Anything that gets the result is prima facie appropriate and certainly, in use of cognitive behaviour therapy and the means used by Dr Zepanic, are not uncommonly spoken about in these courts.

10. The other usual question of course is quantum; "Were the charges those?" No question has been raised about that by the respondent so I take it that the propriety of the charge is not the issue but the propriety of the treatment for which the charge was made is the issue. In my view, totality in the evidence - it was reasonably necessary that the applicant had the treatment aborted both by Dr Marinkovich and Dr Zepanic and there being no challenge as to the amounts I think he is entitled to have an order in his favour in respect of the 2,801 incurred in the treatment of Dr Zepanic and the $725.50 incurred in the treatment of Dr Marinkovich.

11. For those reasons I find:
1. On 8 October 1999 the applicant received injury including a depressive reaction.
2. The applicant incurred expenses of treatment - Dr Zepanic and Dr Marinkovich totalling $3,525.50 and such were reasonably necessary medical treatment having regard to the injury

12. I hereby order and award that the respondent pay to the applicant:
1. The sum of $2,801 in respect of the treatment by Dr Zepanic and the sum of $724.50 in respect of the treatment by Dr Marinkovich and costs.
2. I order that the Respondent pay to the applicant his costs, not on his behalf.

Mr J E Keesing instructed by Martin Bell & Co appeared for the applicant.
Mr Parker instructed by Dexter Healy appeared for the respondent.