Bilbilov v Consolidated Property Services (Australia) Pty Ltd
[2022] VCC 881
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-04784
| ZAKLINA BILBILOV | Plaintiff |
| v | |
| CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 and 2 June 2022 | |
DATE OF JUDGMENT: | 24 June 2022 | |
CASE MAY BE CITED AS: | Bilbilov v Consolidated Property Services (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 881 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – Left knee – Pain and suffering and loss of earning consequences – Plaintiff’s credit in issue – Reports of medical practitioners undermined by Plaintiff’s reporting of symptoms
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr G Taylor | Bowman and Knox Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1Zaklina Bilbilov suffered an injury to her left knee on 10 May 2016. She alleges that her left knee injury has caused her both pain and suffering, and loss of earnings consequences which meet the definition of being considered a “serious injury”, pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). She relies on the physical injury to the left knee only. Ms Bilbilov claims that she is totally incapacitated for work. She abandoned her paragraph (c) claim in respect of psychiatric injury.
2Ms Bilbilov’s case turns, in large part, on whether she can be accepted as a witness of truth. However, an assessment of all the evidence is necessary to determine the central question of whether the impairment consequences flowing from the injury to her left knee meet the test of being considered serious. I find that they do not.
Relevant Factual Background
3Ms Bilbilov was born in Belgrade, Serbia in November 1969. She completed schooling to about Year 11. She migrated to Australia in 1989. She worked for a number of cleaning companies and performed home duties while raising her children. In June 2013 she commenced employment with Consolidated Property Services (Australia) Pty Ltd (“the Defendant”). Her work with the Defendant was as a cleaner at the Northland Shopping Centre. She worked about twenty hours per week.[1]
[1] Plaintiff’s Court Book (“PCB”) 40
4Relevantly, on 23 July 2015, she attended a local doctor at the Mill Park Superclinic, Dr Malini Puvanakumar, with a history of pain in her left knee but with no specific cause.[2] She was given Celebrex, a painkiller. She was at this stage noted to be walking comfortably.[3] Her left knee pain continued and she saw Dr Zahid Hussain on 19 December 2015.[4] Dr Hussain recorded Ms Bilbilov’s left knee to be swollen and restricted in range of movement.[5] She was prescribed Celebrex for her left knee pain.[6] She attended another general practitioner on 2 January 2016 and complained of a sore left leg over the last three weeks. On 4 January 2016, Ms Bilbilov attended another general practitioner, Dr Jin Xue, with left knee pain which was not improving.[7]
[2]PCB 233
[3]PCB 234
[4] PCB 235
[5] Ibid
[6] Ibid
[7] PCB 235 -236
5On 12 January 2016, she attended her local general practitioner, Dr Trevor Richardson, at the Edgars Road Medical Centre, and gave a history of having a three month history of a painful left knee, which locked.[8] She returned to him the following week with similar problems in her left knee.[9] Dr Richardson noted that her left knee pain was interfering with her sleep and was swollen at times. He arranged a bone scan on a history of three months of a painful left knee with intermittent swelling.[10] The scan concluded that there was a degenerative arthropathy.[11] Ms Bilbilov continued working. On 1 February 2016, he referred her to the Northern Hospital orthopaedic unit.[12] At this stage, she had a positive McMurrays test of her left knee.[13]
[8]Defendant’s Court Book (“DCB”) 87
[9] DCB 87
[10] DCB 76
[11]Ibid
[12] DCB 80
[13]Ibid; A McMurrays test seeks to identify on clinical examination if there is damage in the knee
6On 10 February 2016, she had an X-ray of the left knee, on a history of persistent severe knee pain.[14] The X-ray showed no joint effusion, or significant change or degeneration in the left knee.[15]
[14]DCB 77; DCB 87
[15] DCB 77
7The Northern Hospital rejected the referral of Dr Richardson. On 23 March 2016, she had an MRI scan of her left knee, which diagnosed a small oblique tear of the posterior horn of the medial meniscus.[16] A grade one sprain of the MCL and meniscotibial ligament was diagnosed.[17] Armed with this MRI scan, Dr Richardson again referred her to the Northern Hospital orthopaedic unit with pain in her left knee over the medial aspect for four months.[18] He recorded, and it is significant I find, that she had ongoing severe pain interfering with domestic home duties, work and sleep.[19] Nevertheless, Ms Bilbilov gave evidence that she continued to work about twenty hours per week during this time.[20] She continued to be prescribed Celebrex.
[16] DCB 78
[17]DCB 78
[18] DCB 81
[19] Ibid
[20] Transcript (“T’) 20, Line (“L”) 19-20
8On 10 May 2016, she was at work when she slipped and fell on water. She fell onto her left leg and back. On 12 May 2016, she consulted Dr Richardson. He recorded that:
“…on examination, she was tender over the medial aspect of the left knee with some swelling. McMurrays test was positive. Her foot pulses were normal”.[21]
[21]DCB 82
9Dr Richardson concluded that:
“… There are underlying degenerative changes of the medial compartment. The cause of the menisceal tear is most likely degenerative with an aggravation caused by her fall and nature of her work”.[22]
[22]Ibid
10The very next day she saw Dr Marjana Calic, a doctor in Caroline Springs.[23] Dr Calic took a history of the fall on 10 May 2016 and that Ms Bilbilov had pain for the two days after she attempted to return to work.[24] She noted that there was a slight swelling in the left knee, very limited flexion and that the ligaments were intact.[25]
[23]PCB 196
[24] Ibid
[25]Ibid
11Ms Bilbilov ceased working on 12 May 2016. She has not worked since that date.
12On 26 May 2016, she put in a claim form in respect of the left knee injury.[26] That claim form is relevant, as it makes no mention of the pre-existing problems with the left knee, nor does it identify Dr Richardson as her treating doctor. Rather, it identified Dr Lyndsey Kabat from the Epping Plaza Medical Centre as her medical provider who had treated her injury.[27]
[26] PCB 33-34
[27] PCB 34
13Dr Kabat referred her to Dr David Love an orthopaedic surgeon. He recorded that she had had no improvement with physiotherapy. He recommended an arthroscopic resection of the medial meniscus.[28]
[28]PCB 68
14On 5 August 2016, Dr Love performed an arthroscopy on the Plaintiff.[29] She was on crutches for a period of time and then commenced physiotherapy. However, she did not respond well to the surgery.[30]
[29]PCB 199
[30]PCB 227
15She saw Dr Love in October 2016 with, what he recorded as, significant pain in the left knee and some swelling.[31] He considered that she had quite severe pain and she required crutches as of October 2016.[32] He advised her to have an ultrasound guided injection of local anaesthetic and corticosteroid into her left knee.[33] This did not improve things.[34]
[31] PCB 184
[32] PCB 185
[33]PCB 184
[34] PCB 187
16He was concerned by her lack of progress and excluded the possibility of a low grade infection.[35] He arranged a bone scan as well, which identified quadriceps tendon pathology.
[35] PCB 187
17In early 2017, she saw another orthopaedic surgeon, Mr James Canty for a second opinion.[36] Under the care of Mr Canty she had a further MRI scan, which diagnosed an oblique tear through the body of the medial meniscus.[37] He considered that she was presenting with a chronic regional pain syndrome.[38] Throughout the start of 2017, she continued on with physiotherapy.
[36]PCB 207
[37]PCB 157
[38] PCB 208
18Given these orthopaedic opinions, Dr Kabat referred her to Dr Andrew Muir, a pain specialist. She consulted him in April 2017.[39] He ultimately arranged for her to go to Dorset Rehabilitation for outpatient physiotherapy and psychology sessions in December 2017.[40] Since that time, she has had very limited treatment.
[39]PCB 203
[40]PCB 204
19In December 2019, her left knee gave way and she fell, injuring her ankles. She was admitted to the Northern Hospital for a short period. There is no indication that the injury to her ankles caused her any ongoing problem. She had physiotherapy between September 2020 and April 2021. Thereafter, Ms Bilbilov has essentially continued on with no formal treatment. She continues to complain of ongoing pain, limitation of movement, and the need to take regular medication, being Tramal. She claims to have completely lost all capacity for work.
Assessment of the Plaintiff’s Evidence
20As I have indicated, it falls to the Court to consider all the evidence. I begin this by an assessment of the Plaintiff’s evidence. I find Ms Bilbilov was inconsistent and unreliable. I do not consider that I can rely on her evidence at all. This is for the following reasons.
21First, her first Affidavit sworn on 2 July 2021 completely omits any reference to the problems with her left knee prior to 10 May 2016. In her Affidavit, she said the following:
“5. … To the best of my knowledge, I had not previously suffered injury in the course of performing my cleaning work and had not submitted any compensation claim.”[41]
[41]PCB 22
22She then went on to say:
“9. I attended my then GP Dr Cailic in Caroline Springs on 12 May 2016 and was subsequently put off work. Dr Cailic was some distance away from my house and was not interested in Workcover claims.”[42]
[42]PCB 23
23Ms Bilbilov’s first Affidavit is carefully drafted and does not categorically state she had no pre-existing problems with her left knee. However, given she had thought necessary to refer to her past claims history (which is non-existent), it is more than curious that she did not refer to a relevant injury history.
24It can be seen immediately from her first Affidavit that there is no reference to the history of left knee pain commencing in mid 2015 with Dr Puvanakumar and continued, particularly with Dr Richardson and Dr Richard Wardlaw, who saw her consistently throughout 2016 at the Edgars Road Medical Centre. It is unclear why she specifically mentioned Dr Calic at all, given her first consultation in respect of the left knee injury after the fall at work was with Dr Richardson. Nor is it clear why she referred to Dr Calic as her “then” general practitioner. It was not explained at all why, in fact, she would go and see Dr Calic and not Dr Richardson, given he had been treating her for the left knee injury in the lead up to this incident.
25The pre-existing problems with the left knee injury were obviously of importance because Ms Bilbilov had been troubled in her work by her left knee since the middle of 2015. She had gone to the doctor on numerous occasions. She had been prescribed strong painkillers and anti-inflammatory medications. She had numerous radiological investigations, being bone scans, X-rays and MRI scans. She had been referred to the Northern Hospital Orthopaedic Outpatients for review. While waiting for that orthopaedic review, she had then sustained her alleged injury at work. I consider that the pre-existing left knee injury prior to the fall at work on 10 May 2016 was highly relevant, even though it was omitted in its entirety from the first Affidavit and the involvement of Dr Richardson was completely hidden. I will come to the reasons which she gave for omitting this pre-existing injury below.
26Ms Bilbilov’s second Affidavit, filed this year, stands in complete contrast to her first affidavit. It deals in detail with the left knee problems prior to 10 May 2016. Her second Affidavit in fact seeks to distinguish between her left knee symptoms pre and post 10 May 2016.
27The second reason I consider her evidence unreliable relates to the contrast between what was seen in the video surveillance shown to the Court,[43] and the history she had given in her Affidavit material and to doctors. The first component of this relates to the history she gave of limping, for example, in a report of Dr Joseph Slesenger dated 18 May 2017. Dr Slesenger took a history that she was using a crutch and walked with a pronounced limp at the time of examination.[44] This was some nine months post-surgery and it might be thought that she was still recovering. The Medical Panel took a history that she can only walk twenty minutes and limps while doing so.[45] To Mr Rodney Simm, in September 2021 she gave a history of walking with a limp, and he noted that it was quite a marked limp at the time of examination.[46] In contrast, the video surveillance showed Ms Bilbilov, for the vast majority of times, walking freely and with no limp in 2019, 2021 and 2022. I accept that the video footage was but a small slice of her overall activity, and even of the time during which she was under surveillance. However, it appeared to me to be a consistent theme, that she walked freely for the vast majority of the time on the surveillance. At times there was a minor limp noticeable; however, this did not seem to impede her to any great extent. Certainly not in the way the doctors who examined her have recorded.
[43]Exhibits D1, D2, D3 and D4
[44]PCB 145
[45]PCB 165
[46]DCB 53
28Allied to this is the evidence and history she has given in relation to her standing and walking tolerances to doctors as opposed to that shown in the surveillance. Once again, the surveillance showed a very significant discrepancy. In particular, much was made of the history recorded by Dr Clayton Thomas. He recorded that her walking was limited to 15 metres and that she was only able to shop with the help of her adult children.[47] She also told the Medical Panel that her adult children helped her with the shopping.[48] In his later report of 20 October 2019, Dr Thomas recorded that her walking limit was “25 m”; that she could not squat; cannot kneel, and that when she climbs up steps she uses a handrail.[49] It was suggested in submission, that Dr Thomas had not meant “25 metres”, but had meant “25 minutes”. I reject that submission. When regard is had to Dr Thomas’s reports, either on 20 November 2019,[50] or the report of 24 August 2018,[51] his paragraphs make clear distinction between the notation “m” for metres or “minutes”, which he writes separately. What is clear when regard is had to the video surveillance is that Ms Bilbilov clearly walks for longer distances than 25 metres. On many occasions she is seen walking up and down aisles of supermarkets, or to and from convenience stores for much greater distances; this conflicts with the evidence given in her second Affidavit, which is, that she is limited in the distances she can walk.[52] Additionally, video footage taken on 17 May 2019 depicts Ms Bilbilov repeatedly bending over and putting considerable pressure on her left leg as she cleans a grave.[53] This is again at odds with the evidence in her second Affidavit, which details that she has ‘difficulty regularly bending’.[54] I also note in passing that she records that she has difficulty climbing stairs. The surveillance depicted her ascending a short flight of stairs on two occasions up to a house.[55] She appeared to do it with ease and there was no visible indication of her using a hand rail.
[47]PCB 131
[48]PCB 168
[49] PCB 119
[50]PCB 119
[51] PCB 131
[52] PCB 14, at paragraph [16(a)]
[53] Exhibit D1
[54] PCB 14, at paragraph [16(e)]
[55] Exhibit D2
29Fourth and allied with the above, it is clear from the surveillance that Ms Bilbilov is quite able to go shopping by herself. She is seen on numerous occasions in the surveillance, with no assistance, walking up and down the aisles carrying a shopping basket or wheeling a trolley by herself.[56] In fact, in one telling piece of footage, she is seen carrying a young child on her hip as she walks, in what appears to be an entirely free manner, about the store, proceeds through the shopping register and then to her car.[57] The surveillance also showed Ms Bilbilov unloading the groceries from her car and placing the young child in a child seat with no visible signs of discomfort. It is important to note that the surveillance is again, in complete contrast to the history recorded by numerous doctors. It is to be noted that in her first Affidavit, Ms Bilbilov deposes that “My children come and help me with the shopping because I am not able to walk distances now”.[58] This is clearly not the case given the surveillance evidence.
[56] Exhibit D2
[57] Exhibit D1
[58] PCB 26, at paragraph [32]
30Fifth, Ms Bilbilov’s history to a variety of doctors omits her past history of left knee pain between mid-2015 and leading up to 10 May 2016.[59] Mr Simm recorded on 9 September 2021 that “she could only recall having minor problems with her left knee”,[60] and she could not recall the details of the doctor she saw in January 2016, the bone scan, x-ray and MRI scan that she had, or the referral to the Orthopaedic Out-patient Department at the Northern Hospital.[61] Both Dr Forbes and Dr Thomas in their respective medical assessments of Ms Bilbilov recorded that she denied any past history relating to her knee.[62] The omission of the significant history to the medico-legal experts who have seen her over a significant period of time shows a consistent pattern of behaviour, of significantly downplaying the relevant medical history relating to the left knee prior to the 10 May 2016 fall.
[59]PCB 109; PCB 131-132
[60] DCB 51
[61] Ibid
[62] PCB 113; PCB 132
31Sixth, numerous doctors from a variety of different specialties, all have found non-organic signs at the time of examination. Such findings of exaggeration can be found in the report of Dr Slesenger’s report dated 18 May 2017, [63] Dr Thomas’ report dated 24 August 2018,[64] Dr Mark Clayer’s report dated 30 November 2019,[65] and Mr Simm’s report dated 9 September 2021.[66] These consistent findings across a number of years, from a number of different doctors is powerful cumulative evidence of a consistent pattern of embellishment and unreliability in the reporting of symptoms.
[63]PCB 147
[64]PCB 132
[65]PCB 84
[66]DCB 55
32Seventh, the Claim Form, which is made two and a half weeks after the incident, makes no mention of the significant past left knee problems or of her treating doctor. As I indicated above, her reason for this omission was that she had little pain prior to 10 May 2016.[67] I do not accept this evidence, as it runs counter to an assessment of the overall material before the Court. In this regard, it is relevant to note that she had been seeing general practitioners with ongoing complaints over ten months prior to 10 May 2016. They prescribed strong pain medication on a regular basis. By reason of her symptoms, they had also investigated radiologically to determine the cause of the pain. Despite ongoing medication, over a period since at least December 2015, she had continued to complain of pain; which Dr Richardson recorded as of 29 March 2016 in his referral to the Northern Hospital Orthopaedic Unit in the following terms, “[s]he has ongoing severe pain interfering with her doing her home duties, work and sleep”.[68] It was put by Plaintiff’s counsel that the prescription of pain medication had eased her situation, such that, in fact, she had little pain at the time of the fall on 10 May 2016. I do not accept that is the case given that the pain medication had not worked to alleviate her symptoms over the course of the last ten months, so much so that she had been referred on to the orthopaedic unit. To accept the Plaintiff’s argument on this point, I would have to disregard the medical history which I cannot do.
[67] T15, L12-13
[68]DCB 81
33Eighth, I consider her demeanour in the giving of her evidence was not forthcoming and was unreliable. For example, when pressed about the fact that she had ongoing severe pain in March 2016, prompting Dr Richardson to write a referral for her to the Northern Hospital, she stated that she did not have severe pain, but that it was only a little pain. Her answers were given in a way which were entirely unconvincing and appeared completely inconsistent with the material that was put to her. For example, in her second Affidavit, at paragraph [6], all she said was that the pain from 2015 had persisted.[69] She did not say that her pain had abated in the three months prior to May 2016, as she ultimately suggested in evidence. Similarly, she did not explain why she had sought a new doctor immediately after the 10 May 2016 fall. She simply said in evidence that she wanted a new opinion. She provided no reasons to support her evidence. Further, the manner in which she answered suggested that she had no good reason. When she was taken to Dr Blombery’s history at Plaintiff’s Court Book page 46, that there “was no past history of note”, she gave evidence that she did not tell Dr Blombery that she did not have a history of left knee pain.[70] When she was taken to the note of the general practitioner on 19 December 2015 which recorded that she was prescribed Celebrex for left knee pain, she said, argumentatively, in my opinion, that it was not for the left knee but just for pain.[71] I consider that answer unbelievable.
[69]PCB 12, at paragraph [6]
[70] T22, L13
[71] T27, L26
34Having set those matters out, I restate my finding that I consider Ms Bilbilov to be an unreliable and inconsistent witness. I do not accept her evidence.
The Plaintiff’s Injury
35I now turn to consider the remainder of the evidence. The starting point is identifying the injury Ms Bilbilov alleges she sustained on 10 May 2016. This has been put as a tear of the medial meniscus.[72] In addition to this, there has been an exacerbation of a mild level of osteoarthritis in the knee, whether by the surgery or the fall itself.[73] Others, such as Mr Simm, suggested there has been a development of a chronic regional pain syndrome.[74] Dr Blombery suggests that, in fact, she has developed a chronic complex regional pain syndrome type 1.[75]
[72]PCB 83
[73]PCB 69
[74]DCB 59
[75]PCB 47
36The medical opinion is complex and does vary. I find, on the balance of probabilities, that she has sustained an aggravation of the meniscal tear and underlying osteoarthritis in the joint. I find that she has developed a complex regional pain syndrome type 1, given the findings on the clinical examination by Dr Blombery. I do not find she has developed a chronic regional pain syndrome.
Assessment of the Impairment Consequences
37It now falls to identify the impairment consequences said to flow from that injury to the left knee. As I have concluded that I cannot accept Ms Bilbilov’s evidence as to her impairment consequences, I must look to other evidence to establish what those impairment consequences are. Clinically, she has findings of swelling and sensitivity changes to her left knee, as identified by Dr Blombery.[76] He opines that this condition has resulted in a high degree of severity of pain in her left knee, and as a result she is unable to return to gainful employment.[77] In assessing Dr Blombery’s opinion, I find that the reporting of Ms Bilbilov’s pain is dependent on her reporting to Dr Blombery. It is self-evident that the pain cannot be independently verified. As I have found that Ms Bilbilov is an unreliable and inconsistent witness, I similarly find that her recording and reporting of pain to Dr Blombery is unreliable. As a result, I do not consider that he can make the assessment and provide the opinion, that she is unable to work because of the complex regional pain syndrome producing pain to the extent that Ms Bilbilov reported to him. I note that Dr Blombery did not have any of the video surveillance provided to other medico-legal practitioners, such as Mr Simm. It is unclear why this is so, given that the vast majority of the footage had been obtained well prior to his reporting. This also very significantly undermines his opinion. In the end, I cannot accept his opinion when it is based on Ms Bilbilov’s reporting of pain and in a situation where he had not viewed the video surveillance.
[76]Ibid
[77]Ibid
38Turning to assess the orthopaedic injury as defined, I find that the majority of the practitioners opine that it is a minor injury with very limited physical impairment consequences.[78] To the extent that Mr Russell Miller recorded that she will proceed to a total knee replacement,[79] I note this was simply a possibility and not a certainty, and certainly not within the foreseeable future. As I have found that Ms Bilbilov is an unreliable and inconsistent reporter of her impairment consequences, his opinion based on her instructions cannot be accepted. I also note that, while he had the video surveillance, he made no comment on it. This is in stark contrast to other doctors, such as Dr Thomas or Mr Simm; and because of their thorough analysis of the surveillance material, which I consider to be highly relevant, I prefer their opinions to Mr Miller.
[78]DCB 56; see Mr Simm’s report dated 25 October 2021; DCB 36; see Dr Forbes’ report dated 29 August 2019; DCB 16; See Dr Thomas’ report dated 11 July 2019 noting the same thing
[79] PCB 41
39For all these reasons, while I find Ms Bilbilov has sustained an injury at work, I do not find that I can properly identify the impairment consequences said to flow from that injury. To the extent that the impairment consequences can be identified, they do not rise to the level necessary to be considered serious.
40For these reasons, I reject Ms Bilbilov’s claim and find for the Defendant.
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