Babu v Norwood Industries

[2019] VCC 381

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY

Case No. CI-16-04694

KRISHNARAJ BABU	Plaintiff
v
NORWOOD INUDTRIES PTY LTD	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	28,29 March,1 April 2019
DATE OF JUDGMENT:	2 April 2019
CASE MAY BE CITED AS:	Babu v Norwood Industries
MEDIUM NEUTRAL CITATION:	[2019] VCC 381

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:             Serious injury – right shoulder, spine, psychiatric condition
Legislation Cited: Accident Compensation Act 1985
Cases Cited:            
Judgment:                 Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms B Myers	Thomson Geer

HIS HONOUR:

1       On 16 March 2012 the worker, Mr Babu, fell onto his back and outstretched right hand at his place of employment with Norwood. He is called the plaintiff in court documents. He seeks “serious injury” leave for physical injuries to  his spine and right shoulder as well as for a psychiatric or mental health condition. As he was no longer represented by his former solicitors and appeared for itself, I attempted to explain in plain language what was involved in a serious injury application as well as the court procedures. I will also attempt to reduce this judgment to plain, non-legal language.

2       A Form A which starts the “serious injury” process with the insurer was lodged on 30 June 2016 by Slater and Gordon who then acted for him. It only claimed for the two physical injuries and not the psychiatric and also only for pain and suffering and not for loss of earning capacity.[1] Mr Babu told the court at the outset that he wished the claim to be for psychiatric as well as physical injuries and to also be for loss of earning capacity. Sensibly and responsibly the defendant, in the interests of finalising  proceedings as a model litigant, agreed to the matter proceeding as Mr Babu wished.

[1]Court book(CB)3-4

3       The papers indicate that there was an acceptance at least of a right shoulder injury and back injury in the early days following the WorkCover claim going in. Weekly payments and medicals were then paid. However it is the defendant’s case that these are no longer impairments and if they are, they are not due to the Norwood fall and on any view have not been proved to be “serious injuries”.

4       I allowed Mrs Babu to sit at the bar table and assist her husband in any way they saw fit. On the first morning Mr Babu produced a raft of further papers and emails that had not been provided before in spite of the Directions Judge’s Orders.  I accepted these and added them to the joint Court Book.[2] On the third and final hearing day Mr Babu produced a further raft of documents. I again allowed him to tender these and added them to the Court Book.[3] In the end I allowed the plaintiff to tender the whole of the Court Book as he was not able to extract just what he wished to rely on from the hundreds of pages.

[2]CB181- 212

[3]CB217-236

5       Mr Babu was the only witness to give oral evidence. There were some language difficulties and allowances had to be made for the fact that he was quite nervous and representing himself. Those allowances were duly made. I still had the considerable advantage of being able to gauge his demeanour as well as what he said over three days. He was less than straightforward. I did not find his evidence reliable, consistent and accurate.

6       A number of areas where his evidence was quite inconsistent became apparent. His capacity and involvement in cricket was one. His own Face-Book pages and the DVD films of  cricket matches were relevant to doubts about his reliability.[4] I found him evasive on just what he could do and not do in that sport. His attempts to explain it was community cricket or social cricket with friends  rather than competition or club matches were little more than attempts to minimise or avoid awkward questions. They were proper matches.

[4]CB165-167,Exhibit 1

7       The DVD films showed him playing in and attending  cricket matches in 2016, 2017 and 2018.[5] These do not require detailed comment. He batted for over an hour in one game, swung vigorously and moved his arms normally. He played shots all around the wicket, hit boundaries and sprinted between wickets constantly. In the field he took catches, sprinted and threw the ball right handed without any sign of pain or restriction. He also clapped hands above his head and made gestures with his arms overhead. He was at a cricket ground on 21 April 2018 at some tournament involving a lot of teams participating in a number of limited over matches for what must have been over seven hours in duration.

[5]Exhibits 1,2,3

8       These  films  were inconsistent with what he said in his affidavits, to a number of doctors and with a person suffering any significant shoulder or spinal impairment. Some of them were in the period when he was also working 42 hours per week for a firm called Nu-Pure and driving daily to and from Cranbourne to Truganina in that job.

9       His affidavit prepared by Slater and Gordon and what he told the surgeon, Mr M Khan, who they arranged for him to see, both  gave the clear impression his capacity to play cricket was a thing of the past.[6]  A term like “used to play on a social basis” was an attempt to convey to the reader that cricket was less of an interest and was now out of the question for him.[7] It was more than just social cricket shown in the films. They were full elevens, played on full ovals and with uniformed teams at times as well as umpires. Whatever these games were titled they were contests and pointed to very unreliable evidence about capacity.

[6]CB13,15,79

[7]CB15

10      The plaintiff has a demonstrated a capacity for free and full movement of his right shoulder and back that leads to my conclusion that  the plaintiff has failed to prove any ongoing permanent impairment caused by the Norwood fall. If I am wrong on that, then the plaintiff has failed to prove any current consequences of any such impairment that could be judged as very considerable.

11      The employment with Norwood ended in March 2013. The circumstances of that end were the subject of dispute.[8]  The probabilities are that he wished to take about three months off work from about December 2012. He wished to go to India. That is what he did. The likelihood is the employer was prepared to give him two weeks without leave and two weeks leave but required him to return to work in January 2013. 

[8]T37-44

12      The circumstances of what was said to have happened at that time were quite curious. A lot of what Mr Babu said on these matters was unsatisfactory. For example he worked until 8 December 2012 but he somehow obtained from the general practitioner in Hallam, Dr C Phan, an “advance” certificate on 29 November 2012. It said on 29 November that the worker would be unfit for work from 8 December 2012 to 16 March 2012 for stress.[9]  How a doctor could predict the future in this way was not explained. Perhaps not surprisingly, when he returned to the employer in March 2013 he was terminated. Earlier on, after being injured in the subject fall on 16 March 2012, he went off for some six weeks to India having left as early as 20 March, four days after the fall. 

[9]CB48b

13      It is relevant to all the alleged injuries that after leaving Norwood in March 2013 he worked for an IT company for a while, as a delivery driver for about six weeks for a pool company and then he started the job with Nu-Pure in April 2016 working 12 hour shifts and 42 hours per week. He worked full time there from April 2016 to October 2017 when he put in a WorkCover claim for psychiatric injury suffered at Nu-pure.[10] He also took unfair dismissal proceedings against them when he finished.[11] This employment involved a certain amount of manual work as a water line operator. The evidence indicated that from 8 June 2015 until some incident at Nu-pure in February 2017, he was taking no medication for any psychiatric or mental health issues, was not seeing a psychologist and was not seeing a psychiatrist.[12]

[10]T34-35

[11]T40

[12]T29-31

14      Perhaps even more importantly he was clearly capable of working more than full-time hours in 2016 and 2017. As already mentioned, in addition to working those hours he was driving from his home in Cranbourne to Nu-Pure in Truganina  to and from his work every day, a not inconsiderable drive from the far south east of Melbourne to the far west. His earnings at  Nu-Pure were $1235 per week while at Norwood they had totalled $1135 per week.[13] This demonstrated work capacity is not consistent with any significant right shoulder or spinal impairments.

[13]CB124,23n

15      Looking just at the low back, the treatment undergone has been minimal. He saw the neurosurgeon Mr Xenos once back in August 2012. He thought exercises were recommended and saw no need for MRI scanning which is  often seen in spinal cases where pathology was anticipated. Some Voltaren was prescribed but this stopped in 2014 or 2015.[14] There were also very few physiotherapy visits and they were back in 2013 and ended in 2015. A similar situation involved some minimal osteopathy and acupuncture but it seems there has really been no treatment at all for the back condition since 2017 and no scripts since about 2015.[15] If there is any ongoing back condition still caused by the fall at Norwood, then it is  not very significant and is not a major impairment in terms of activity and capacity.

[14]T48-49

[15]T52

16      As with the fact he could cope with the  later job he had at Nu-pure, treatment of itself is not determinative of any “serious injury” claim. But the limited treatment in Mr Babu’s case is informative. Sitting virtually every day in this jurisdiction, back and shoulder cases come before this court in “serious injury” applications just about weekly. As with the back,  Mr Babu’s treatment for the right shoulder injury has also been very limited.

17      He was discharged by a specialist in about 2015 and it seems he only went back to the surgeon, Mr A Moaveni, in late 2018 and early 2019. This was after  it became clear from the Directions Judge that up to date material was required for Mr Babu’s serious injury case to proceed. [16] The probability is these recent attendances were not really for  treatment needs but were more for the purposes of presenting this claim to a court. The same seems to apply to a letter from a Dr Boekel but I will refer to that later.[17]

[16]T57-63

[17]CB86c

18      Another matter that is not of itself determinative but is instructive to some extent, is his ability to travel on long journeys overseas. His extensive travel history involving the long flights to and from India goes against there being any major back injury but also the shoulder complaint to a lesser extent. He has been in India from 20 March to 6 May 2012, 10 December to 8 March 2013, 26 July to 23 August 2014, 31 December 2016 to 3 February 2017, 30 October to 15 November 2017, 23 November 2018 to 2 January 2019 and 25 February to 4 March 2019. 

19      It is of particular importance to his psychiatric claim that  on 12 October 2017 he lodged a Workers Injury Claim Form for WorkCover purposes against Nu-Pure claiming “Acute anxiety and panic attack due to stress”.[18] From that date and to the present time he has been certified as unfit for any work due to these mental health or psychiatric problems. He has also been receiving and continues to receive weekly statutory benefits for total incapacity for work.

[18]CB124-125

20      He said he  continues to be treated by a psychologist, Dr S Surtharsanan every two to three weeks. He continues to be treated by a psychiatrist, Dr R Talluri, monthly since commencing in October 2017. There is no report or other material from Dr Talluri. Mr Babu said he continues to take Valium, Lexapro and Circadin medications for his current mental health problems.[19] This extensive regime of treatment all started after  a considerable period of working long hours even beyond full time work hours with Nu-Pure and only after he put in that 12 October 2017 WorkCover claim against them. As late as last Wednesday he said he had to attend Berwick Hospital because of a panic attack.

[19]Transcript(T)26-27

21      It is not necessary that I deal with his claim for psychiatric injuries suffered due to his Nu-Pure job and I do not do so. That is for another court and another time. Save to say that assessing the claim against Norwood  now, he has not proved any permanent severe mental or behavioural disturbance or disorder that was caused by the Norwood employment. To put it in plain language, no “serious injury” in terms of psychiatric health has been proved before me. Again treatment has been minimal until after the claim against the later employer, Nu-Pure, was lodged. I have only heard the claim against Norwood and I make no comment about the Nu-Pure claim. 

22      Because of my opinion about the reliability of the evidence already discussed, Mr Babu’s case does not require me to deal at length in this judgment with every one of the medical reports in this large court book. Although of course I have read and considered them all. Firstly they are based largely if not entirely on an acceptance of his complaint about the level of his symptoms and disability. I do not accept that evidence as reliable so the opinions he relies on are flawed. Secondly many of the opinions are too out of date to assist in making an assessment now in April 2019 as I am required to do.

23      However I will still direct some comments to the medical evidence. His local practitioner, Dr C Phan, has provided a number of reports and his most recent one is somewhat out of date being June 2017. He provided support to the plaintiff in relation to  right shoulder and back injuries and  he thought the patient was incapable of work because of each of these. However it is not certain when he last saw the patient and 2015 seems to be the last date referred to.[20] There is no up-to-date opinion from this doctor to assist making an assessment now.

[20]CB56

24      Mr C Xenos, neurosurgeon, reported some five years ago in May 2013. He thought it was only a mechanical muscular back condition and he gave a positive prognosis. In regard to treatment it was only rest and exercises that were required and the surgeon had no plan to review his patient.[21]

[21]CB59

25      Mr C Pullen, orthopaedic surgeon, has not seen his patient since August 2012 regarding the shoulder complaint. He said the MRI showed no evidence of pathology and it was a soft tissue injury with a “very positive” prognosis. He ended by saying “I would anticipate him returning to normal function.” [22]

[22]CB62

26      Mr G Tay, orthopaedic surgeon, saw Mr Babu in July 2015 for the shoulder. For some reason the second page of his report is missing and the plaintiff was asked to see whether or not he had that second page at home but it has not been provided to the court.[23] Mr Tay stated in this incomplete report  “I am unable to attribute the pain to a specific diagnosis in 2012.”[24] With the second page missing I have no way of knowing what Mr Tay’s real and final opinions were about Mr Babu’s shoulder. It is not permissible for the court to guess. 

[23]CB63,T102

[24]CB63

27      Mr A Moaveni was another specialist who saw the patient for shoulder problems and that was back in 2015. He said “He does have some ongoing medico-legal issues and this may be of significance. He is also under a fair amount of psychological stress relating to his injury and other factors”.[25] The final paragraph from Mr Moaveni included “He does not wish for any active treatment at the present time and feels this has resolved.”[26]

[25]CB86a

[26]CB86aa

28      These specialist reports from treaters are well out of date.  I have to assess Mr Babu’ injuries  now, in April 2019.  The reports do not prove any ongoing shoulder or spinal impairment that could be adequately assessed now and fairly judged by comparison with other cases in the range of possible impairments as amounting to  a “serious injury”. If there are any consequences still suffered and caused by the Norwood fall, then they have not been proved to be at least very considerable.

29      Some physiotherapy reports relate only to 2012 and 2013 attendances and take this matter no further now.[27] A short report from Dr Choo at the Eye and Ear Hospital was about a vocal cord procedure in 2016 that has not been proved to be linked to the Norwood work injuries.[28]

[27]CB69-73

[28]CB86d

30      A very brief letter from Dr Pamela Boekel at Eastern Health is puzzling to say the least. Without hearing from her it reads as though Mr Babu went there more for medico-legal reasons than treatment. She recorded she gave the plaintiff some clinical notes and stated “Today requesting legal reports…I have urged Krisnaraj to seek legal advice to see if this is sufficient evidence for the courts.”[29] Whatever the real reason was for his visit, there is nothing in Dr Boelkel’s letter that proves any “serious injury”.

[29]CB86c

31      The only medico-legal report relied on amongst the plaintiff’s reports was one from nearly four years ago from Mr M Khan.[30] While back then he diagnosed continuing shoulder and spinal conditions causing symptoms and restrictions, that report does not assist very much now and in particular leaves the question of permanence up in the air. Even more to the point Mr Khan relied on an acceptance of restrictions demonstrated to him on examination that are inconsistent with what I observed in the DVD films. Complaints to Mr Khan were also exaggerated and already I have referred to cricket in that context. 

[30]CB74-86

32      A long list of radiology reports for the shoulder and back is found in the court book. They also are largely out of date. Nothing in them establishes major pathology or damage  that of itself pointed to any serious injury with permanent consequences assessed now.

33      There is no necessity to list each of the medical reports the insurer and the defendant obtained. The doctors concerned with the two physical impairments were Mr P Battlay, Mr M Shannon and Dr G Doig.[31] None of these doctors supported the plaintiff’s claim for “serious injury” in regard to the shoulder or back. It is interesting to note Dr Doig’s comments about the DVD cricket films. He agreed with my own observations that the 2016 film alone showed the soft tissue injuries  he had originally diagnosed in the shoulder and back “…had  completely resolved at the time of footage on 03.07.2016.”[32]

[31]CB94-98,99-106,107-114

[32]CB113

34      The plaintiff has not provided any report from a psychiatrist, treater or medico-legal, in support of his claim for psychiatric injuries. There were two experts engaged by insurers regarding any psychiatric condition. They  did not help the plaintiff. These were Dr T Entwisle and Associate Professor S Damodaran.[33] They do not have to be discussed at length. Their opinions do not support there being any permanent severe mental or behavioural disturbance looked at now that was caused by employment with Norwood.

[33]CB98a-e,114a-aa

35      Dr Entwisle reported five years ago in May 2013. An adjustment disorder with anxious and depressed mood was diagnosed but it was in remission. Symptoms had “abated to a significant degree” and he had a capacity for pre-injury duties and hours.[34]

[34]CB98e

36      Associate Professor Damodaran saw him in later years but this was for the  claim against Nu-Pure centred around an incident there in February 2017. [35] Mr Babu made it clear that he  had recovered from any problems related to Norwood and “He reported that he was quite well and stable and he did not have any emotional symptoms during the period of 2015 until February 2017”.[36]

[35]CB114b

[36]CB114e

37      The plaintiff has not proved any “serious injury” with respect to his shoulder, spine or psychiatric health and the application is dismissed.