Borvayeh v Victorian WorkCover Authority
[2023] VCC 1468
•25 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-05623
| BEHROOZ BORVAYEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2023 | |
DATE OF JUDGMENT: | 25 August 2023 | |
CASE MAY BE CITED AS: | Borvayeh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1468 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workplace injury – Injury to spine – Mental injury - Whether loss of earnings consequences serious or severe – Whether pain and suffering consequences serious or severe - Whether Plaintiff credible
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:-
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Mighell KC with A Smietanka | Zaparas Lawyers |
| For the Defendant | G Hevey with L Howe | Wisewould Mahony |
HIS HONOUR:
1Mr Borvayeh fled Iran as a refugee in 2013. After being granted asylum in Australia in 2015, he began work through a labour-hire company at a warehouse. There, he did general labouring, forklift driving and machine operating. He worked twelve-hour night shifts four to six days a week, earning $1,868 gross per week for some three years. Mr Borvayeh claims to have sustained a serious injury on account of a lower-back injury and a psychiatric injury, sustained in his employment on 15 March 2020. He claims serious injury determinations for both pain and suffering and loss of earnings. It is accepted that he suffered injury to his lower back on 15 March 2020. He has been off work since. He has remained in receipt of weekly payments and medical and like expenses. The Defendant, the Victorian WorkCover Authority (“VWA”), opposes Mr Borvayeh’s application, primarily on the basis that the claimed back injury has resolved and that any claimed consequences, be they psychiatric or physical, are pure fabrications designed to extract compensation, and that Mr Borvayeh has the ability to return to work full- time.
2I reject the Defendant’s argument for the following reasons.
Relevant facts
3Given the limited nature of the facts in dispute in this case, only the brief salient chronological matters need be touched on.
4Mr Borvayeh was born in Iran in 1986. He left school at about the age of sixteen or seventeen and then did six months of compulsory military service. Finishing that, he worked in his family’s clothing shop, a fruit store and then as a taxi driver. He fled the country, arriving in Australia in 2013. He spent about two years in immigration detention and then was released into the community. He performed some Uber-driving work and then began labouring duties. In August 2017, he began working at Logtek (Australia) Pty Ltd, cleaning and sanitising food crates used in supermarkets. His duties included general labouring, forklift driving and some machine operating. He worked nightshift from 5.00pm to 5.00am.
5He gave evidence his injury occurred on 15 March 2020, when he was lifting a stack of heavy pallets weighing about 30 kilograms and he experienced pain in his lower back. He fell to the ground, an ambulance was called, and he was taken to Footscray Hospital. He underwent an MRI scan and was kept overnight. He was released the next day into the care of his treating doctor. Since that time, he has not worked. He made a claim for weekly payments and medical and like expenses on 26 March 2020.[1] That claim was accepted and he continues to be in receipt of weekly payments and medical and like expenses.
[1]Plaintiff’s Amended Court Book (“PACB”) 141
6In April 2020, he was referred to a psychologist, Ms Albatat. He had some seventeen sessions with her until March 2021.
7His general practitioner, Dr Hamie, also referred him to see a neurosurgeon, Professor Bittar, in April 2020. After initial review, he referred him on to a pain specialist, Dr McCallum, in July 2020.[2] He saw Dr McCallum some 15 times, trialling different medications and receiving various referrals to rehabilitation physicians. He was rejected as an inpatient for a pain-management program towards the end of 2020. He continued seeing Ms Albatat. He had an inpatient stay in the Austin Hospital for about a week in January 2021. Thereafter, he has continued seeing his pain specialist and Ms Albatat, or another psychologist, Dr Annabel Pollard. He developed aggravated urological problems and was referred to Dr Zargar.[3] He was treated conservatively with medication. Ultimately, he came under the care of a psychiatrist, Dr Samir Ibrahim, towards the end of October 2021, and also a psychologist, Mr Farzin Shaykhi. He trialled diagnostic medial branch blocks under Dr McCallum’s care, but it was not diagnostic.
[2]PACB 31
[3]PACB 31 and PACB 43
8Otherwise, Mr Borvayeh has continued under the care of his treating doctor, Dr Ibrahim, and has now ceased consultation with Dr McCallum.
9He lives with flatmates and has not been referred for, or tried, any rehabilitation or return-to-work program.
The Plaintiff’s claim in respect of (a): the injury to the spine
The Defendant’s attack on Mr Borvayeh as a witness of truth
The video surveillance
10The Defendant attacked Mr Borvayeh as a witness who was wholly untruthful. The Defendant called in aid two tranches of video from May 2020 and November 2020. It was put to Mr Borvayeh that they showed him presenting with symptoms only when about to see doctors or when he was attending his employer’s office. At times when he was not engaged in those activities, it was submitted the film showed he moved entirely normally. There are a number of difficulties with this submission. The first is that the Mr Borvayeh is seen holding his back at times when he is not attending a doctor or his workplace.[4]
[4]Surveillance footage dated 7 May 2020 at 1:05pm, and 2:07pm.
11This happens on two occasions. At both times, Mr Borvayeh was unaware that he was being filmed. The Defendant’s theory does not account for this. Second, the film is taken in 2020 and runs in combination for not more than ten minutes. It is an incredibly tiny snapshot of his condition. And yet, as I have just set out, it shows him, on occasion, holding his back. It is undoubtedly true that he is also seen moving relatively freely, which is in contrast to other parts of the film. The explanation for that, however, is sound: he was on significant medication, being Endone, Tramadol and then Palexia, all strong pain medication which allowed him to move despite the pain. Even before the surveillance was shown to him, he had conceded, in cross-examination, that he had improved in the first month after the date of injury and was able to walk around, which is what is seen in the May 2020 film at least.
12Next, the November 2020 film at least was shown to some practitioners. Concentrating on those practitioners who opined as to the physical state, the overwhelming evidence is that the footage is not inconsistent with the injury or reporting of symptoms.[5] The contrary view is put by Dr Catherine Bones, who is of the opinion that the film demonstrates Mr Borvayeh’s condition has resolved due to the lack of restrictions shown. I reject her opinion, because it is an outlier. It is also an opinion based on an expressed deference to the pain specialists.[6] Those specialists are Dr McCallum and Dr Richard Sullivan. Dr McCallum has seen Mr Borvayeh some fifteen times across several years. His opinion is clear that the condition is organically based, continuing, and causes the consequences complained of. I prefer those views over that of Dr Bones.
[5]PACB 74, Dr McCallum; PACB 102, Dr Hazem Akil; PACB 116, Dr Sullivan
[6]Defendant’s Court Book (“DCB”) 68.
13Overall, then, I consider the film did not support the Defendant’s submission.
Are the symptoms in an anatomical distribution?
14The next area the Defendant submitted showed Mr Borvayeh was feigning his symptoms was in the non-anatomical nature of his symptoms. Reliance was placed on Dr Bones in this regard, but also Dr Anthony Menz. These matters can be grouped together as being:
(a) The failure of MRI radiology to show nerve compression – yet pain was said to be downgoing into the buttocks and legs;
(b) The lack of response to branch blocks;
(c) The lack of positive nerve-conduction studies.
15These matters, however, do not grapple with the overwhelming evidence that Mr Borvayeh has an organic injury of his lower back. While it is not definitive, the fact is that this man’s back injury has been accepted as work-related since 15 March 2020 and continues to be.
16In part, this is no doubt because of the opinions of his treating doctor. He has been continuously seen by his treating doctor, Dr Hassan Hamie.[7] His report confirms the onset of a serious condition at work. It describes the ongoing need for medication to deal with his pain symptoms, which have been strong prescription medication. I accept he has continued such prescriptions to treat an organic problem.
[7]PACB 163
17Next, Dr McCallum, the pain specialist who saw Mr Borvayeh on numerous occasions and performed the medial branch blocks, opines that his condition is best identified as an aggravation of lumbar spondylosis with an organic basis.[8] I place greatest weight on these opinions because they are long-term treating doctors. Their opinions also find support from the treating neurosurgeon, Professor Richard Bittar, who opined consistently with Dr McCallum that there is an aggravation of lumbar spondylosis and a L4-5 prolapse.[9] This opinion is based not only on two clinical examinations, but also MRI scanning. Putting aside the scan of 16 March 2020 taken at hospital on the day of the incident, because it was compromised by movement, Professor Bittar considered the 5 May 2020 MRI scan demonstrated L4-5 disc protrusion, with contact of the L4-5 nerve root without definite compromise.[10] This diagnosis of the treating doctor and two treating specialists is supported by other medico-legal reporting of the neurosurgeon, Dr Akil,[11] and the pain specialist, Dr Sullivan.[12]
[8]PACB 70-71
[9]PACB 55
[10]PACB 55
[11]PACB 98
[12]PACB 108
18As to the material the Defendant called in aid, Dr Menz opined the scan of 5 May 2020 showed a disc protrusion at the L4-5 with mild impingement of the left nerve root.[13] Despite this finding, he considered the functional component as to Mr Borvayeh’s presentation was so inconsistent with the radiological finding, that it suggested a non-organic cause.[14] I reject this finding, given Dr Menz himself made a finding that the May 2020 MRI scan showed a protrusion with impingement. There is no evidence this pathological condition has changed. As I have set out above, I do not find Mr Borvayeh’s reporting of symptoms to be inconsistent with film taken of him. Further, I place significant weight on the opinions of treating doctors and specialists because of their relationship as treating clinicians, and the length of their treatment of Mr Borvayeh. I reject Dr Menz’s opinion for these reasons. To the extent the Defendant relies on Dr Bones’ opinion to support an argument Mr Borvayeh is exaggerating his symptoms, I have set out above why I have rejected her opinion.
[13]PACB 19
[14]DCB 22
19I do not accept Dr Clayton Thomas’s view that Mr Borvayeh’s symptoms are not organically based. Dr Thomas is a rehabilitative and pain specialist. He saw Mr Borvayeh on only one occasion. He did not have access to the imaging. He only had access to Dr Bones’ interpretation of the scanning. This represented only one view of the scanning. Specifically, he had no material from Dr McCallum or Professor Bittar, the treating specialists, as to the organic basis of the pain and their view as to the scanning. I find his opinion is of less weight given he has not been given a balanced selection of material.
20As to Dr Umberto Boffa, he accepted that Mr Borvayeh had “possible discogenic low back pain”,[15] but considered there was considerable pain-amplification behaviour.[16] The high point of the Defendant’s attack on this ground is contained in the reporting of Dr Terence Saxby from 29 June 2023[17] that there is no “significant organic basis to underpin this clinical presentation”.[18] Once again, Dr Saxby accepts that the scanning on 7 January 2021 shows L4-5 mild disc bulging with some nerve-root compression.[19] However, after considering the other radiology, he opines as set out above. His opinion is based on only one examination of Mr Borvayeh. He was provided with only medico-legal reports commissioned by the Defendant and, ultimately, radiology. He was not made aware of the contrasting and important material from the treating doctor and treating specialists. In contrast, for example, Professor Bittar was given Dr Menz’s opinion (which is similar to Dr Saxby’s) and provided comment on it.[20] The same occurred with Dr McCallum.[21] It is another reason I prefer those opinions to Dr Saxby’s.
[15]DCB 98
[16]Ibid
[17]DCB 106
[18]DCB 109
[19]DCB 102
[20]PACB 56
[21]PACB 63
21Another reason for rejecting the Defendant’s argument is that Mr Borvayeh developed neurological difficulties after the workplace injury. Both the treating neurologist and the independent opinion obtained by the Defendant accepted the link between those difficulties and his lower-back injury.[22] This consistency supports Mr Borvayeh’s submission of an organic lower-back injury which has resulted in pathological effects.
[22]PACB 43, Dr Homi Zargar; DCB57, Mr David Merenstein
Does the manner of giving evidence support a finding of feigned symptoms?
22The next area the Defendant submitted demonstrated Mr Borvayeh was feigning his symptoms was his manner of giving evidence. This was said to be non-responsive and argumentative. Mr Borvayeh’s counsel conceded as much. This much can be accepted. However, I considered this was Mr Borvayeh’s manner, rather than a deliberate tactic to avoid questioning. This can be seen in, first, his failure to properly answer questions put by Defendant’s counsel. Then, after repeated infractions, I reminded him to focus on answering the question and he still could not answer concisely. Lastly, in re-examination, when his own counsel sought to elicit a simple answer, he wandered off topic again. All that suggests to me is that he was a rambling, discursive witness, but I do not find he sought to deliberately lie or obstruct. That said, parts of his evidence were clearly inconsistent. An example was when he was seen on film talking to someone on a bike. When asked who the person was, Mr Borvayeh seemed to suggest he did not know. Given he had waved to the person and stopped for a chat, this seems unbelievable. It was also suggested that his evidence was inconsistent and unbelievable as to why he left his treating psychologist, Ms Albatat. It was put that he left her because he was doing well and he wanted to downplay that, given this worked against his court case. I do not accept this characterisation of the situation as to why he left.
23First, when regard is had to her report,[23] she sets out the fact that his response of leaving her care was a standard response, consistent with his behaviour of getting angry and confused when confronted with difficult topics. Second, in cross-examination, he admitted that her treatment made him angry because he did not feel like any progress was being made. Both these things are consistent, rational explanations for leaving her care and I do not accept the Defendant’s submission.
[23]PACB 53
24Similarly, it was put that he had not done a pain-management course in order to ensure his symptoms were maintained for the purposes of the litigation. Mr Borvayeh gave an entirely rational explanation, which was that, when the insurer rejected the application on account of Dr Menz’s opinion, he went off and engaged in his own physiotherapy, pool program and psychological treatment. As a result, when he was finally approved for the program, he rejected it, as it would mean giving up his own programs.
25I also consider that Mr Borvayeh did make appropriate concessions, such as to his use of public transport[24].
[24]Transcript (“T”) 75 Line (“L”) 3-15, T76 L1-8
26Overall, I find Mr Borvayeh was a witness of truth and I accept his evidence, except for minor peripheral matters.
27I find that on 15 March 2020 he sustained an injury, being an aggravation of lumbar spondylosis involving a bulge at L4-5, with mild impingement of the L5 nerve root. I find this is an impairment of body function, being the spine.
The Claimed Impairment Consequences: (a) the Spine
28I now turn to consider the claimed impairment consequences. Examining the loss of earnings component first. It is accepted that the before injury figure is $1,868. Mr Borvayeh submitted he cannot return to work. I accept that position for the following reasons. First, he has an organic injury which has not changed over several years. Second, he has not worked since, which suggests a stable permanent condition. He has not been recommended for any rehabilitation courses, which likely means he has not developed new skills or ways of coping with his impairments such that he could work alternative or modified duties. Third, I have accepted him as a witness of truth and he deposes that he could not return to work.[25] Fourth, he has been in receipt of weekly payments since the date of injury on the basis of an ongoing physical incapacity. This is presumably due to the Work Capacity Certificates which his treating doctor continues to provide him, which certify him as having no capacity.[26] Fifth, the opinion of his treating specialists is that he has no capacity and this is likely to continue indefinitely.[27] These views are supported by the medico-legal specialists, Dr Akhil[28] and Dr Sullivan,[29] who had seen the video surveillance. Also, Dr Joseph Slesenger, the occupational physician,[30] importantly given his speciality, had regard for each of the positions raised by Recovre in their report, and considered them unsuitable for Mr Borvayeh. In part, this was due to his ongoing organic injury, but also the fact of his considerable medication intake, which affects his ability to work reliably and consistently. I accept that opinion.
[25]PACB 41
[26]PACB 41
[27]Dr McCallum, PACB 72; Professor Bittar, PACB 58
[28]PACB 99-100
[29]PACB 109 and 115
[30]PACB 139
29As to the contrary opinion, I do not accept Dr Bones’ opinion for the reasons set out above. In addition, I note, in her first report she considered there was no capacity for work and only changed that opinion after the surveillance was shown to her. I have set out why the surveillance does not bear the significance the Defendant seeks to attach to it. For this reason, also, Dr Bones’ opinion, as in her second report, cannot be accepted. To the extent Dr Thomas was said to be relied on in terms of capacity for work, he was of the view that Mr Borvayeh was totally incapacitated for work, but not for physical causes. I have rejected that view as to causation but, as to incapacity, his opinion supports the weight of the evidence. Dr Boffa’s opinion and Dr Philip Haynes’ opinion as to capacity must also be rejected, as they proceed on the basis there is significant symptom amplification.[31] I have rejected that view. Their opinions as to capacity are based on a factual basis which I found to be wrong. Any conclusion based on that incorrect factual basis cannot be relied upon.
[31]Dr Boffa, DCB 98 and Dr Haynes DCB 143,145, 150
30As a result, I find the before injury figure to be $1,868 gross per week. I further find the after-injury figure is $0, commensurate with a total incapacity to work now and into the foreseeable future. Mr Borvayeh therefore succeeds on his primary paragraph (a) ground in respect of loss of earnings. It follows that he succeeds on his pain and suffering grounds in consequence.
31If I were wrong as to my findings on loss of earning and incapacity, I would have found the pain and suffering consequences meet the test of being “more than significant or marked” for the following reasons:
(a) Since the time of his injury in March 2020, he has been on persistent strong pain medication, being initially Endone and Tramal, and now, Palexia. This is considerable, long-term ingestion of significant pain medication and is likely to continue for the foreseeable future;
(b) He is restricted in activities which require bending, twisting and lifting. This affects his ability to do household chores and social activities. I accept that there is a degree of embellishment as to his ability to drive, but, overall, I accept the matters he deposes to in his affidavit;
(c) The pain has caused periods of insomnia and he has had periods of time when he has had to take Stilnox;
(d) He has developed worsened urological problems which have required referral to a specialist and some treatment, namely, the medication Betmiga;
(e) His pain symptoms were attempted to be resolved by medial branch blocks conducted by Dr McCallum, but they did not and his pain has persisted;
(f) He has had various periods in hospital to deal with severe back pain, notably on the day of the incident and then again in January 2021, where he spent about a week in the Austin Hospital due to his back pain, and, at that time, worsening urinary problems;
(g) He experiences constant pain in his lower back, which at times flares and is severe;
(h) He experiences radiation of the pain into his left leg particularly, but also into both hips and buttocks;
(i) His pain and insomnia have led to periods of being irritable and angry, such that he has had outbursts with housemates and his partner. He deposed that his relationship had broken down because of his more volatile behaviour.
32Overall, I find his pain consequences are of constant unremitting pain, which he takes strong medication to cope with and allow him to function. At times he has breakthrough pain, but, on the evidence, I am unable to find how often that occurs. I find those matters constitute impairment consequences which are more than significant or marked.
33That is sufficient to dispose of the proceedings. However, if I am wrong as to both my findings as to the paragraph (a) case in respect of loss of earnings and the pain and suffering consequences, I now stay briefly to consider Mr Borvayeh’s paragraph (c) case. I find that Mr Borvayeh has not sustained a permanent severe mental or permanent severe behavioural disturbance or disorder. I find Mr Borvayeh has sustained an adjustment disorder with anxiety and depressive symptoms.[32] I accept that descriptor for his constellation of psychiatric symptoms. Even accepting his psychiatric impairment consequences are as deposed and supported by Dr Ibrahim, this does not lead to a finding that they meet the relevant test. It is to be remembered that the consequences must be severe in nature. Overall, I do not consider his impairment consequences arising from the accepted psychiatric injury rise to the level necessary to warrant a pain and suffering determination. Similarly, I do not consider that the material allows a finding that he is unable to return to work by reason of his psychiatric condition.
[32]PACB 80
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