Boules v Ramzy Cleaning Services Pty Ltd
[2023] VCC 2144
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01878
| SALWA BOULES | Plaintiff |
| v | |
| RAMZY CLEANING SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 October 2023 | |
DATE OF JUDGMENT: | 1 December 2023 | |
CASE MAY BE CITED AS: | Boules v Ramzy Cleaning Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2144 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workers’ Compensation – Workplace injury - Causation – Whether injury serious - Injury to left hip – injury to spine – Disentanglement of injuries
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Dressing v Porter & Anor [2006] VSCA 215; Peak Engineering v McKenzie [2014] VSCA 67; Barwon Spinners v Podolak 14 VR 622
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hayes KC with Mr Z Partos | Carbone Lawyers |
| For the Defendant | Mr N Dunstan | Landers & Rogers |
HIS HONOUR:
1Salwa Boules (“the plaintiff”) was born in Egypt in 1968. She came to Australia with her husband and two children in 2008. In 2009, she started work cleaning the Westgrove Primary School in Werribee after hours with Ramzy Cleaning Services. She claims that her work as a cleaner caused injuries to her left hip, and separately the spine, throughout the course of her employment, such that she had to leave work in 2017. She claims that she has totally lost her capacity to work by reason of those separate injuries. That allegation forms the basis for her application for serious injury determinations pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The defendant denies the plaintiff ought be granted serious injury determinations in respect of her claim for either pain and suffering or loss of earnings. The defendant hones in on one central issue: causation. It submits that the plaintiff cannot prove, on the balance of probabilities, that work caused the claimed injuries. Tied up intimately with that submission is an attack on the reliability of the plaintiff’s evidence.
2For the reasons which follow I find the plaintiff’s work with Ramzy was a cause of her left hip injury and has resulted in loss of earnings consequences which are serious and satisfy the test of resulting in a loss of more than 40%. It follows that she is entitled to a pain and suffering determination also.
Brief relevant chronology
3The plaintiff completed high school in Egypt and then attended university, where she majored in French. She became a French teacher. She married and had two children; a son born in 1996 and a daughter born in 2001. She and her husband left Egypt and came to Australia in 2008. Almost immediately after arriving in Australia, she and her husband began work as cleaners with the defendant. They worked at a variety of different schools and then were settled at the Westgrove Primary School. They worked after hours Monday to Friday from 3.00pm to 8.00pm. She described her work duties in the following terms in her first affidavit.
Each day I would collect all the rubbish from each of the bins in the school and throw it into large skips, clean the individual classrooms and staff room, wipe and dust the windows, clean and mop the toilets, and vacuum the floors.
The most physically demanding tasks were collecting the rubbish bins, mopping and cleaning the toilets and vacuuming the floors using a backpack vacuum. The rubbish bins I had to empty were often quite large and heavy, particularly the ones located on the playgrounds. These bins were the size of a residential garbage bin, with all the rubbish contained in one large bag.[1]
[1]Affidavit of the plaintiff, sworn 2 December 2022, paragraphs [15]-[16] at Plaintiff’s Court Book (“PCB”) 10
4Her medical history was unremarkable until she first presented on 10 September 2013 to her local treating doctor’s clinic, Sydenham Medical Centre. There, she saw Dr Nabil Boules (no relation). She complained of lower back pain and some neck pain. No time was taken off work.
5On 13 February 2014, she went to see another treating doctor at Werribee Group Healthcare, Dr Anwar Ikladios. Her complaint then was of lower-back pain. Dr Ikladios referred her for an MRI scan of the back, which relevantly showed preserved discs, no herniation and no nerve root compression.[2]
[2]PCB 79
6A bone scan similarly recorded that no abnormality was detected.[3] In this setting, Dr Ikladios referred her onto a rheumatologist and physician, Dr Frank Laska. She saw him in May 2014 and he took a history of back pain over the last twelve months with “spontaneous onset” and “gradual progression”.[4] In particular, the pain at about the left hip was sharp. He diagnosed a dominant problem of trochanteric bursitis, which was mimicking symptoms of left sciatic nerve pain. For reasons which will become clear, it is important that he recorded no history of trauma. He asked her to trial Mobic and then potentially try a steroidal injection into the hip joint.[5] X-ray and ultrasound of the left hip revealed no abnormality.[6] By the end of 2014, the plaintiff had ceased seeing Dr Ikladios and had returned to the Sydenham Medical Centre, where she had previously seen Dr Boules. There, she came under the care of many doctors, but primarily Dr Amir Malek. She attended twice during the course of 2015, but there is no record of any left hip or spine problems.[7]
[3]PCB 82
[4]PCB 82
[5]PCB 82
[6]PCB 81
[7]Defendant’s Amended Court Book (“DCB”) 114
7She saw Dr Malek in January 2016, who noted a history of longstanding left-hip pain.[8] He considered that she had trochanteric bursitis and referred her for an ultrasound-guided steroidal injection. He also referred her for MRI scanning of the left hip, which revealed a tear.[9] Shortly afterwards, she had an injection to her left hip in April 2016. She had only short-term relief from the injection and was then referred by Dr Malek to an orthopaedic specialist, Mr Audi Widjaja.[10] Dr Widjaja reported back after seeing Ms Boules that there was a history of left-hip and back pain over the last three years. He confirmed that the MRI scan showed a Grade 2 tear in the hip. He considered she needed to take some time off work.[11]
[8]DCB 114
[9]PCB102
[10]PCB 88
[11]PCB 89
8The plaintiff’s evidence was that she was struggling at work toward the end of 2016 and into 2017. She continued to consult Dr Malek. On account of the ongoing problems, Dr Malek referred her to a specialist rheumatologist, Dr Keith Lim, in March 2017.[12] He considered that her spine was normal, but she had left-hip irritability, which was making her work as a cleaner very difficult.[13] Through this time she had chiropractic treatment.
[12]PCB 104 and DCB 108
[13]PCB 104
9It is agreed, though I will return to this debate, that the plaintiff ceased work on 17 March 2017. Since that time, she has not returned to work.
10In June 2017, she presented to Dr Malek with right hand and neck pain.[14] Dr Malek wrote Centrelink certificates certifying her as incapacitated for all work from 3 July 2017 to 2 September 2017.[15] The reason for this was due to back and left-hip problems.
[14]DCB 120
[15]DCB 16-18 The second Centrelink certificate certifies the plaintiff as incapacitated from work from 3 September 2017 until 2 December 2017 and the third certificate from 7 August 2018 until November 2018. The third certificate also states the plaintiff suffers from ‘cervical discogenic pain’.
11Dr Malek referred her off to a neurologist, Dr David Freilich, for potential carpal tunnel investigation, but it appears that no abnormality was detected.[16] She continued to see Dr Malek throughout the remainder of 2017.[17] Dr Malek referred her to a neurosurgeon, Mr Tom Morris, to investigate her cervical neck problems.[18] Mr Morris considered that she had a cervical spine lesion with C4 radiculopathy. He prescribed Lyrica, Naproxen and Tapentadol.[19] He also suggested nerve-root injections. Throughout the latter part of 2017, Dr Malek continued to certify her for Centrelink purposes. An MRI scan performed on 15 November 2017 showed impingement on the right at the C5/C6 level. Mr Morris ultimately wrote to Dr Malek in January 2018, after review of the treatment course to date. He informed Dr Malek that the injections had provided only temporary relief and that, in light of the MRI scan, surgery was now an option. He referred Ms Boules to the St Vincent’s Hospital surgical waiting list.[20] It is unclear if the plaintiff did that, however, what is clear is she has indicated she does not wish to have surgery, and will not have it, even if it is offered to her as a public patient.
[16]DCB 121
[17]DCB 121
[18]DCB 122
[19]PCB 11, 115
[20]PCB 101
12In mid-2018, the plaintiff transferred her treatment to the Coburg Medical Centre and came under the care of Dr Maher Luka and also Dr Mark Rizkallah. She complained to them of lower-back pain in particular.[21]
[21]DCB 134 – Sacro-iliac joint pain requiring injection, DCB 136
13Save for referring her for a short period of physiotherapy in 2019, she has remained under the care of Dr Luka, and particularly Dr Rizkallah, since that time.
14In July 2022, she lodged a worker’s compensation claim, nominating relevantly injury to the neck, right upper limb, spine, left hip and left knee caused by work at Ramzy. It was immediately rejected.
Causation
Was the plaintiff an unreliable witness?
15The Defendant squarely attacked the plaintiff’s evidence as being unreliable, inconsistent and evasive to the point where her credit was said to be impugned. This was submitted to be demonstrated first in the evidence which she gave in her second affidavit; that she had told both her treating doctors that the onset of her spine and left-hip pain was due to work with the defendant.[22] In that affidavit, she deposed in the following terms:
“During my consultations with Dr Ikladios, I recall telling him that I thought the onset of my back, neck and left hip pain was due to my work with the respondent. In particular, I stated to him at various times that I was experiencing tiredness and pain in the above areas as a result of my work duties.
Similarly, in my later consultations with Dr Amir Malek at Sydenham Medical Centre from January 2016, I recall telling him that I thought my injuries were work-related. Again, the consultations I had with Dr Malek were conducted in Arabic, but his notes are recorded in English.”
[22]Plaintiff’s affidavit, sworn 25 August 2023, paragraphs [9]-[10] at PCB 16
16I note these statements were not made in the initial affidavit, even though she did depose to the heavy, physical and repetitive nature of her work duties. The difficulty with these statements is that they do not accord with any notations in Dr Boules’ notes commencing in September 2013 or Dr Malek’s notes at the Sydenham Medical Centre.[23] Similarly there are no notations in the notes of Dr Ikladios, who she saw, commencing 13 February 2014 at Werribee Group Healthcare, for the remainder of that year. A review of the notes of both clinics where she saw her treating doctors from 2009 to mid-2017 reveals no notation that she had indicated to these doctors she believed her injuries were work-related. This point is further reinforced because, in a report to the plaintiff’s solicitors of 28 July 2023, Dr Ikladios specifically noted that he had no record of a work-related injury. There is no report from Dr Boules. There is a report from Dr Malek, dated 17 March 2023. In that report, he makes no mention that the plaintiff had ever informed him of the relationship between her work duties and the onset of her injuries. I consider this to be a remarkable discrepancy, because Dr Boules, Dr Ikladios and Dr Malek, conversed with the plaintiff in her native language, so the chances of matters being lost due to language problems was significantly reduced. Further, the doctors and clinics where she attended saw her on multiple occasions from late 2013 to mid-2017, offering numerous chances for the plaintiff to make her belief as to the work relationship to her injuries known. The fact that it is not recorded in any report or clinical note suggests that the plaintiff’s evidence in her affidavit is incorrect.
[23]DCB 113
17Similarly, the records and reports of various specialists she was referred to during this period also contained no record of the plaintiff’s belief that her injuries were work-related. The first of these specialists is Dr Laska, who she consulted in May 2014. He took a history of back pain over the last twelve months, which was of “spontaneous onset” and with “gradual … progression”.[24] He diagnosed her dominant problem as trochanteric bursitis with a mimic of sciatic pain. Importantly, he recorded no history of trauma as being the precipitating cause for her problems.[25] My interpretation of his recording is that he sought to elicit a history as to the onset and cause of the injuries. In that setting, it is unclear why the plaintiff did not volunteer her belief of there being a work relationship, as she had deposed to in her second affidavit, that she had given to her treating doctors. Even if she had done so, it is completely unclear why Dr Laska, having made these enquiries as to history and cause, did not record a work relationship. I consider it much more likely that no such history of work relationship was given to him.
[24]PCB 82
[25]PCB 82
18Next, Mrs Boules was referred by Dr Malek to Dr Widjaja, an orthopaedic specialist, in August 2016. He saw Mrs Boules and examined her in September 2016. He took a history of left-hip pain over three years and lower-back pain. He recorded that there was no initial injury.[26] He considered there was osteoarthritis, tendinopathy, a tear in the left hip, and that the lower-back pain required further investigation. There was no record of neck symptoms. Dr Widjaja was aware of her work as a cleaner, and suggested she take time off work. In his report to the plaintiff’s lawyers, he stated:
… it is likely that her left hip problems are due to the work she was doing during the course of her employment. However, at her age, osteoarthritis is common and may have been pre-existing with her employment exacerbating the osteoarthritis.[27]
[26]PCB 89
[27]PCB 91-92
19While these comments go toward causation, I have set them out to examine whether they support or undermine the plaintiff’s claim, as in her second affidavit, of telling her treating doctors of her belief that her work duties had a role in causing her injuries. It can be seen that Dr Widjaja does not record such a history from the plaintiff.
20Next, the plaintiff was referred to a rheumatologist, Dr Lim, in March 2017.[28] He took a history that she worked as a cleaner, was predominantly troubled by lower-back pain and pain into the left leg. The plaintiff’s son was present, presumably to interpret, and he enquired as to her capacity to work. Dr Lim concluded that she would struggle with work as a cleaner and wondered if cessation of work duties would help her improve. Once again, there is no recording in line with the plaintiff’s sworn evidence in her second affidavit.
[28]PCB 104
21It is also relevant to note the evidence the plaintiff gave in cross-examination:
Q:“I will put again to you, the first time you've mentioned to any doctor who's been treating you that any of your injuries were work related was on 26 August 2022?---
A: That's correct.”[29]
[29]T47, L10-13
22I am entirely uncertain how that can be reconciled with the passages set out from her second affidavit above. It is a significant inconsistency and lends real weight to the defendant’s submission that her evidence is unreliable and inconsistent.
23Having set those matters out, I record my finding that I find the plaintiff’s evidence of informing her treating doctors that she believed the onset of her back, neck and hip pain was due to work, was unreliable and inconsistent with the evidence I have set out above. I do not accept it.
24The defendant next submitted that the plaintiff’s evidence was unreliable when she deposed:
I ended up having to take extended periods of time off work in order to allow my body to recover. I estimate that between 2014 and 2017, I would have taken approximately 3 months off each year just to manage my pain.[30]
[30]Affidavit of the plaintiff, sworn 25 August 2023, paragraph [35] at PCB 12. Dr Moaveni also records that the Plaintiff had three months off each year.
25The evidence on this point was not much in contest. The plaintiff accepted she took time off from November 2014 for three months to go to Egypt. However, it was accepted that she did not take three months off in 2015 or 2016. Plaintiff’s counsel submitted this inaccuracy was no more than an inconsistency.[31] That much can be accepted. It is useful, however, to also recall that an examination of the treating doctor notes from 2013 to mid-2017, does not reveal there was sick leave being taken for left-hip or spine problems. This was one piece of evidence which suggests the problems with the plaintiff’s condition were not as significant as she deposed. Significantly, however, having adopted her affidavits as true and accurate, the following exchange occurred.
Q:So from 2009 to 2017, you worked full-time every day, apart from that three months you went to Egypt?---
A:Yes, that's correct and before I left work, Dr Amir provided me with a doctor's certificate for three months, three consecutive doctor's certificate (sic), because I wasn't able to go to work, before I left work.[32]
[31]T132, L28
[32]T48, L10-15
26This evidence confirms the unreliability of her affidavit, but also introduced a further matter of inconsistency, being certificates that put her off work for three by three-month periods before she left work. A call was made for the certificates the plaintiff had referred to. Plaintiff’s counsel was unable to immediately respond to the call, because the plaintiff gave evidence that the certificates were at home: “Those certificates I obtained just prior to 2017 and I’ve got them home”.[33] Lunch was then taken.
[33]T48, L27
27After lunch, the Court was informed that the certificates the plaintiff was referring to were, in fact, already in the Court Book. The first was dated 28 June 2017, for the period 3 July 2017 to 2 September 2017;[34] the second, dated 28 August 2017 for the period 3 September 2017 to 2 December 2017;[35] and the third dated 7 August 2018, for the period of 7 August 2018 to 6 November 2018.[36]
[34]DCB 16
[35]DCB 17
[36]DCB 18
28It can be seen that the certificates do not corroborate the plaintiff’s evidence given in cross-examination. This is because they were given after she ceased work, which is accepted as being 17 March 2017. While I can accept the plaintiff was confused as to the exact dates, this is another example of inconsistency and unreliability in her evidence.
29There was said to be an inconsistency between her affidavit, in which she deposed to ceasing work at the start of March 2017 and the ultimate position, which was that she ceased on 17 March 2017. Not much turns on this I find. I find it a minor inconsistency brought about by confusion of terms relating to the last day of physical work, the last day of employment or, alternatively, the termination of employment all terms used in Exhibit P3, the Employment Separation Certificate.
30I do record, however, that overall I consider the plaintiff to have been giving evidence in a manner which was straightforward. This much can be seen when she confirmed she had not told doctors of the fact that her work contributed to her injuries as set out above. But when examined it was clearly inconsistent and incorrect. She certainly gave answers which were against her interest but this added a real air of uncertainty to the exact state of her symptoms at a particular point in time.[37] For example it is simply impossible to say whether or not she took 3 months off each year from 2014 to 2017 due to her injury. The most troubling aspect of her evidence was as to capacity for work. She had deposed to being off work for three months year since 2014 on account of the severity of her injury. I have found that is patently incorrect. She now comes to the Court further deposing of an incapacity for work on account of the severity of her injury since 2018 and ongoing. I cannot accept her evidence as to her capacity for work given the very significant misrepresentation as to the effect of her injury on her capacity in the years 2014 to 2017 that she deposed to and the other matters which show the inconsistencies in her evidence.
[37]T47, L10
Do the plaintiff’s work duties and medical opinions support a finding on causation?
31Having gone this far in the assessment of the evidence, I reiterate my finding that there is a considerable degree of unreliability in the plaintiff’s evidence. This is only one part the case she brings to support a finding of causation, however. She also relies on the work duties she deposed to performing and medical opinions to support her case on causation.
32I make it plain that, as the plaintiff claims for two discrete injuries, I am bound to identify each injury separately, and proceed from there to define the body function impacted and the impairment consequences, if any, which flow from each separate injury.[38] I will deal with each claimed injury after first considering her the causation evidence broadly.
[38]Peak Engineering v McKenzie [2014] VSCA 67 (‘Peak Engineering’) at [24]; Barwon Spinners v Podolak 14 VR 622, 639.
33In her affidavit, she deposed to her work duties, as I have set out above at [3]. She elaborated on those duties in re-examination.[39] She submits the work duties are consistent with the development of the injuries she has sustained. To the extent that her work involved repetitive bending and lifting as set out in her affidavit I accept that submission.
[39]T72 ꟷ T73
34She then called in aid opinions of doctors, both who had treated her, and also medico-legal specialists.
35Resuming from the chronology regarding the treating practitioners after her consultations with Dr Lim in early 2017 for her left hip, she began complaining to Dr Malek of neck pain (associated with chest pain) in May 2017.[40] Heart conditions were excluded and she was then investigated for right hand and neck pain by x-ray of the spine.[41] These investigations resulted in a referral to a neurosurgeon, Mr Morris, who diagnosed a C7 radiculopathy and trialled nerve-root injections. Overall, while his reports note the work the plaintiff was involved in, he makes no definitive comment on causation. As of January 2018, he recommended surgery at the cervical level, but he did not nominate work in any way as causative of the need for such surgery.
[40]DCB 119
[41]DCB 120-121
36Shortly thereafter the plaintiff changed treating doctors and began consulting Dr Luka in mid-2018 at the Coburg Medical Centre.[42] No specific mention of the effect of work is made in his notes, either as a record of the history given, or as an opinion as to causation. In mid-2019, she began seeing Dr Rizkallah at the same Coburg Medical Centre. From mid-2019 until 19 October 2022, there is no mention of work as being a contributing factor to her injuries.[43] At that time, Dr Rizkallah filed a report with the WorkCover insurer, in which he expressed an opinion that Ms Boules’ injuries to both spine and left hip are work related.[44]
[42]DCB 133
[43]PCB 79
[44]PCB 78
37That brief summary of the treating practitioners demonstrates some support for the plaintiff’s proposition, specifically from Dr Widjaja[45] and Dr Rizkallah.[46] That is, that her employment was a “likely” cause of her injuries[47] and “consistent” with the work a cleaner.[48]
[45]See the above quotation set out at [18] of the judgment above
[46]PCB 77
[47]PCB 91-92
[48]PCB 77
38I now turn to consider the medico-legal opinion the plaintiff calls in aid of both her claims as to the left hip and spine. The first in time is Associate Professor Bruce Love, an orthopaedic specialist, who examined Ms Boules for the defendant in September 2022. He diagnosed her with a C7 nerve-root lesion and a trochanteric bursitis of the left hip.[49] He considered the problems with the lumbar spine were age-related degeneration. He considered the injuries to the cervical spine and hip were new injuries arising about January 2014 and related to her employment.[50]
[49]PCB 146
[50]PCB 146
39The defendant made no specific submissions as to why Associate Professor Love’s opinion ought not be accepted.
40The plaintiff saw a medico-legal rheumatologist, Dr Mian.[51] He saw her and provided a report in January 2023.[52] That made no specific comment as to work and causation, other than identifying the range of conditions she has and opining that they will worsen as her arthritis progresses.
[51]PCB 97
[52]PCB 96
41The plaintiff also called in aid the opinion of Mr Ash Moaveni. He is an orthopaedic specialist, who saw the plaintiff in June 2023 on behalf of her solicitors.[53] His report was criticised, as it had an incorrect history of the plaintiff experiencing pain from 2014 to 2017, in her lower back, left hip and neck and, further, that she had to take three months off work from 2014 every year to recover physically. In his first report, he considered she had no current work capacity and this was a permanent state. As to causation, his opinion is not clearcut. This is primarily because of the question he was asked, which was:
Your diagnosis of the injuries suffered by my client over the course of her employment only, separating and disentangling any pre-existing or subsequent medical and physical injuries.
To which he answered:
a. Cervical spine soft tissue injury including right C6 nerve root lesion;
b. Trochanteric bursitis left hip; and
c. Aggravation of pre-existing lumbar spine degenerative changes.[54]
[53]PCB 110
[54]PCB 122
42The usual form of the question as to causation in matters such as the one before the Court, is as to whether the plaintiff has sustained injury caused or contributed to by employment. The use of the word “over” suggests a temporal connection only and should not be used. The answers of the doctor, however, make it tolerably clear that he does consider work to have been a causative factor. This can be seen by reference to the terminology “aggravation” as to the lumbar-spine changes. This strongly implies the work duties had an effect on the pre-existing degenerative changes. As to the assertion that his incorrect history undermines his opinion,[55] counsel for the defendant put:
… she's told doctors she's getting unrelenting neck and right arm pain from 2013 onwards and that's just not true … .[56]
[55]T102, L5
[56]T102, L26-28
43I have set out above the way Dr Moaveni recorded the mechanism of injury, as being that she had lower back, left hip and neck pain between 2014 to 2017.[57] However, Dr Moaveni also had her affidavit, which stated:
On 10 September 2013, I attended the Sydenham Medical Centre complaining of low back pain and neck pain. On 13 February 2014, I attended on my GP, Dr Anwar Ikladios, again complaining of low back pain. I was also experiencing pain radiating down my left side through my hip and down as far as my toes.[58]
[57]PCB 114
[58]plaintiff’s affidavit, sworn 22 December 2022, paragraph [18] at PCB 10
44Dr Moaveni then embarked on an assessment of what the treating doctor clinical notes and radiology disclosed. That assessment revealed that there was not constant complaint of lower back pain, left hip or neck pain. In addition, he had access to the treating specialists’ material of Dr Laska, Dr Widjaja and Mr Morris. All this strongly suggests Mr Moaveni did not simply accept there was unrelenting lower back, left hip and neck pain, as the defendant submits, on which to base his opinion.
45In contrast, I find his opinion well appreciated the different injuries she presented with and the fact they presented at different times. So much can be seen from the way that he has set out her various clinical presentations. However, he does appear to have accepted that she had three months off each year on account of her injuries. As I have set out above, this cannot be accepted and by accepting this unsupported indicia as to the severity and chronicity of her symptoms, his opinion must be given significantly less weight, though it need not be discarded entirely.
46It was also said that the lack of an occupational history which dealt in detail with each of the tasks she was performing invalidated Dr Moaveni’s opinion on causation.[59] I reject that submission, given I consider the plaintiff’s affidavit adequately set out the work tasks for an experienced orthopaedic specialist to opine on.
[59]T111, L22-27
47Turning to examine Dr Mohammed Awad’s opinion. His opinions were attacked on the same bases as were Dr Moaveni’s. First, that he had an incorrect history as to the onset of her symptoms and that, thereafter, there was unrelenting left hip, back and neck pain from 2013.[60] The history recorded by Dr Awad is recorded in the following terms:
… She explains that on or around mid 2014, she started with some back pains and left-sided back to hip pains as well as neck pain and right arm pain. Initially, she was working through all these pains, managing herself conservatively … .[61]
[60]T102, L5
[61]PCB 105
48It is unclear what materials he had in conducting his review other than radiology. The history he has recorded is clearly incorrect. Significantly, the fact that the neck pain only began after ceasing employment must, I consider, be an important fact in ascribing a cause for the alleged neck injury. This lessens the weight to be ascribed to his opinion.
49The next criticism relates to the understanding of the work duties the plaintiff was performing. As I have set out in respect of Dr Moaveni, I do not consider there is much force in this submission, for the reasons I expressed in relation to Dr Moaveni’s opinion.
50It was also said that Dr Awad had implicitly accepted that it could not be determined what caused the plaintiff’s alleged injuries.[62] I reject that submission. It is clear from Dr Awad’s supplementary report that he is indicating his opinion is that work is a cause of the spinal problems, but there is a degree of uncertainty in all situations of diagnosis, particularly where repetitive workplace strains are brought to bear on a spine which has osteoarthritis. This appears to me to be a balanced expert opinion which takes account of the fact there is often uncertainty in diagnosis. I would reject the defendant’s submission on this ground.
[62]PCB 157 and T113, L17
51The plaintiff also called in aid the defendant’s medical report of the neurosurgeon, Mr Kevin Siu.[63] He was not provided with the plaintiff’s affidavit, but was given all the treating practitioner’s material. Broadly, he opined she had soft-tissue injury of the neck and lumbar spine. He considered that such condition should have resolved, but the fact it had not suggested a chronic pain syndrome. From his report, it is apparent he considered work had been a cause of the spinal conditions with no radiculopathy. Overall, I consider his opinion supportive of the plaintiff on causation of the spine condition. He made no comment in respect of the left hip problems.
[63] DCB 35 - 41
52Lastly, coming to Dr Ian Dickinson. He is an orthopaedic specialist, who examined the plaintiff on behalf of the defendant. He had her affidavit, treating doctor materials and the radiology. He considered work played no role in the left hip or spinal conditions.[64] The plaintiff made a submission that Dr Dickinson’s failure to have Associate Professor Love’s report or Dr Awad’s report invalidated his opinion, or meant that it should be afforded less weight. However, I consider that both Associate Professor Love’s and Dr Awad’s opinions were medico-legal opinions, so added little to the facts on which Dr Dickinson based his opinion. I do not consider the plaintiff’s submission made out. Dr Dickinson ultimately concludes that there is simply a degenerative process at play.
[64]DCB 58
53It now falls to step back and assess all of the evidence I have set out. In doing so, I am mindful that this is a gateway provision and that serious injury applications in this court provide only limited means to assess opinions on causation, given no doctors are called for cross-examination to have their opinions tested.
Left hip
Identification of injury
54The injury of the left hip is best identified by Dr Widjaja, which I accept, in the following terms:
(a) Left hip, mild osteoarthritis with trochanteric bursitis;
(b) Left hip, gluteus medius and minimus tendinopathy with tensor fascia lata Grade 2 tear.
55I accept the plaintiff’s submission that her work has significantly contributed to this injury to the left hip by way of causing, aggravating or accelerating that injury.
56I come to this finding for the following reasons. First, the heavy, repetitive and awkward work the plaintiff was engaged in over a period of some eight years. These work duties were not subject to great challenge during the course of cross-examination. While on other points I have found her evidence unreliable, on this point her affidavit evidence was not demonstrated to be unsound. It is evidence also supported by her husband, who worked with her for the defendant doing the same job. Second, the fact is she worked on in the same role, with the same duties after September 2013, when symptoms first came to manifest. It is true these were in relation to the lower back, but as Dr Laska found, this was likely to have stemmed from the left hip. I accept that the unreliability of her evidence as to taking time off to cope with the ongoing physical pains cannot be accepted, so this point has less force, however, overall, the notes show that she complained of left-hip pain in 2014 and 2016 which represents a reporting of problems with the left hip area during the course of her work.[65] That temporal connection is important and strengthens the plaintiff’s argument on causation I find.
[65]2014: PCB 80-82 and DCB 83;; 2016: DCB 114-116 and PCB 89
57Her condition worsened in 2016. She returned to her treating doctor. She was referred for physiotherapy.[66] She was referred for an MRI, which showed tendinosis and trochanteric bursitis,[67] and had an injection of steroid to the left hip in April 2016.[68] A referral to Dr Widjaja was then made. She was advised by Dr Widjaja in late 2016 to take time off work because of the left-hip problems. This represents a significant progression of her condition during the course of employment and furthers the plaintiff’s submission because of the ongoing work duties acting on or aggravating the left injury. Third, the treating specialist opinion of Dr Widjaja broadly supports a finding of causation in the plaintiff’s favour. It was said against this that the first opinion in time of Dr Laska considered that there was a “constitutional problem”, but the “[r]eason for the problem isn’t clear”.[69] The limitation with this reporting is that it is within one year of the problems in the left hip occurring and as set out above there was progression of the condition. Further, at that stage, the ultrasound and x-ray of the left hip in 2014 had been reported as normal.[70] Neither investigation is as sophisticated as an MRI scan. The only MRI scan taken up to that point in time was of the lumbar spine.[71] When an MRI scan of the left hip was finally done on 9 March 2016, it demonstrated the injuries ultimately identified by Dr Widjaja.[72] This shows that Dr Laska had incomplete information at the time of his diagnosis and was not in a position, as Dr Widjaja was, to assess the plaintiff after several years of working, after the initial presentation, in her same role, which involved the heavy repetitive and awkward work which she set out in her affidavit. This gives Dr Widjaja’s opinion substantially more weight than that of Dr Laska’s. It is the reason why I prefer that opinion over Dr Laska’s.
[66]DCB 115, consultations on 4 March 2016 and 21 March 2016.
[67]DCB 73
[68]DCB 72
[69]PCB 82
[70]PCB 80 and DCB 67
[71]PCB 79
[72]DCB 73
58Fourth, Dr Widjaja, as set out above, was in a good position to make an assessment. He reviewed her at a time years after the initial complaint, the condition having progressed to the point that he suggested she cease work. Importantly though he was armed with MRI scanning and ultrasounds specific to the left hip. With that material he ultimately opined:
[The plaintiff] was employed as a cleaner from approximately 2009 to 2017. Due to the nature of her employment and her symptom onset in 2013, it is likely that her left hip problems are due to the work she was doing during the course of her employment. However, at her age, osteoarthritis is common and may have been pre-existing with her employment exacerbating the osteoarthritis.[73]
[73]PCB 91-92
59I consider Dr Widjaja is, there, fairly ascribing to the plaintiff’s work, a causative role in the initiation of her left-hip injury. He then goes on to posit a possibility that osteoarthritis may have been pre-existing, with work acting on that state to produce the physiological state he identified and which was shown on MRI scanning. I do not accept the defendant’s submission that Dr Widjaja is simply raising possible methods of causation of her injury without definitively identifying the more probable cause than not. That submission must be rejected on a plain reading of the words of his report.
60As for Dr Lim, the rheumatologist she saw in 2017, he made no comment as to causation. His opinion bears little on my assessment of this point.
61Fifth, the treating practitioners, to the extent they comment as to causation, are supportive. Dr Rizkallah, is strongly supportive of the plaintiff’s left-hip injury being caused by her employment.[74] His opinion is given well after the cessation of employment. Those treating doctors on the case during her employment have no record of work being involved in the development of the condition. They offered no opinion one way or the other on causation.
[74] PCB 76
62Sixth, the medico-legal reporting supports the opinion of Dr Widjaja. Associate Professor Love’s opinion was commissioned by the defendant, but tendered by the plaintiff in support of her case. There was no criticism made of his opinion by the defendant. Furthermore it is consistent with the left-hip injury progression throughout employment that appears from her history. It is also consistent with Dr Widjaja’s opinion. For these reasons it is evidence which supports a finding that work was a causative factor in the development of the left hip condition.
63Similarly, I accept Dr Moaveni’s opinion. It supports the plaintiff on causation, though the force of the opinion is lessened, given the incorrect history he has assumed, that I have dealt with above.
64The opinions of Mr Siu and Dr Mian are not relevant to this assessment of causation as to the left hip and I put them aside.
65Lastly, turning to Dr Dickinson. He conducted a thorough review of the radiology and clinical files. He considered there was no relationship between work and the left-hip problems. Rather, he considered that the plaintiff was suffering from degenerative conditions only.[75] I consider this opinion to not be as persuasive as that expressed by Dr Widjaja and supported by Associate Professor Love and Mr Moaveni. Dr Widjaja saw the plaintiff in a therapeutic setting. It was at a time when the plaintiff was at work and Dr Widjaja considered a break from work duties might be helpful. Dr Widjaja was aware that work was aggravating her pain at least. This was important information to be factored into any assessment as to causation. Dr Widjaja then went on to opine on causation. He did so in balanced terms, which I have set out above. He certainly had a primary view on causation, but also allowed for the fact of work acting as an exacerbating factor on the underlying condition. Dr Dickinson’s report does not grapple with that possibility in any detail, nor does he provide any reasoning behind his view that her condition is solely related to degeneration. That robs his opinion of considerable force. In addition, in respect of the left hip, his opinion of those who saw her after the 2016 MRI scan is isolated. It does not align with the opinions of Dr Widjaja, Dr Rizkallah, Associate Professor Love and, to a lesser extent, Dr Moaveni. I prefer that body of evidence over Dr Dickinson’s opinion.
[75]DCB 58
66At this stage it is necessary to return to my earlier findings as to the unreliable and inconsistent evidence the plaintiff gave. I accept that she was not a reliable witness as to either telling her doctors of the impact work was having on her condition or that she needed time off work to deal with the consequences of her hip injury. These matters go to both the question of causation and capacity for work. On both these topics I consider her evidence could not be accepted. However, overall the opinion of Dr Widjaja, which is primarily based on the radiology, examination and her situation at that time is powerful. It stands relatively unaffected by the inconsistency in her evidence. It is also supported by other medical opinion which I have set out above. Balancing these matters overall I find narrowly, consistent with the medical evidence that her left hip injury was caused by her employment.
67Having made that assessment, I identify the injury caused by the employment as:
(a) Left-hip mild osteoarthritis with trochanteric bursitis;
(b) Left-hip gluteus medius and minimus tendinopathy and tensor fascia lata tear;
caused or aggravated by her work at Ramzy.
68I find that condition is permanent. I reject the submission that the left-hip injury is not permanent. In doing so, I accept the opinions of Associate Professor Love[76] and Dr Moaveni[77] and Dr Rizkallah[78]. There is no doubt the left-hip problems have been present since 2014. That is now nine years ago, with a deterioration to the point of having to cease work. While some doctors, at an earlier time, opined her condition may improve, that has not proved to be the case. Her history to date provides a solid basis to conclude her condition is permanent in conjunction with the medical material referred to above.
[76] PCB 146
[77] PCB 129
[78] PCB 37
69I find the body function impaired is the left hip.
The impairment consequences of the left hip injury
70The impairment consequences of that left-hip injury were also in issue, both as to loss of earnings and pain and suffering consequences. As to loss of earnings, the plaintiff’s case is she has had no capacity for employment since ceasing work in March 2017. The defendant submits the plaintiff has capacity for part-time work, as Dr Dickinson and Dr Mian opine. Before proceeding to that debate, I record the parties agreed the relevant last day of employment was 17 March 2017. They further agree the figure that most fairly reflects her without injury earnings is $450 gross per week.
71Where there are 2 alleged injuries resulting in impairments the principles set out by Maxwell P in Peak Engineering v McKenzie (“Peak”) must be applied:[79]
… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
[79][2014] VSCA 67
72The plaintiff’s evidence as to her impairment consequences cannot be accepted. This is because I have found her evidence to be unreliable and inconsistent. This goes to not only her reporting of her injury but also her capacity to work from 2014 onwards. Her affidavit material was clearly false. As was her viva voce evidence as obtaining certificates of incapacity before she ceased work. I do not consider these were minor matters. Turning from that to consider other factors such as the medical evidence. That assessment must be made as of today. In considering her capacity, it is relevant that she is now fifty-four years of age and a non-English speaker. She came to Australia in 2008 and, despite her education, has only ever worked as a cleaner, a manual role.
73Turning to consider the incapacity for work resulting from the left hip injury specifically it can be seen that by 2016, Dr Widjaja – whose opinion I accept as to the plaintiff’s left hip – was advising she needed time off work because of her left-hip condition.[80] By March 2017, she had ceased work and her treating doctor began certifying her shortly afterwards as unfit for work, in part, because of her left-hip concerns.[81] Around that time, she also began presenting with right-hand and neck problems. Dr Malek wrote that those conditions, in addition to her left hip, were incapacitating her. If necessary, I would rely on what was said in Dressing v Porter & Anor,[82] that a worker can have two causes of impairment or incapacity. Here, it is clear she had progressive worsening of the left hip condition up to 2017 and ceased work in a situation where Dr Widjaja was counselling her off work due to her left-hip problems and her treating doctor had described the left hip as a cause for ceasing work and going onto Centrelink benefits. It is necessary for the worker to identify the impairment consequences attributable to the relevant injury.[83] I consider it clear enough that the inability to perform manual work can be attributed to the left hip. This finding is supported by Dr Rizkallah, her treating doctor,[84] and also Dr Moaveni.[85]
[80]PCB 89
[81]DCB 16
[82][2006] VSCA 215 at paragraph [47]
[83]Peak Engineering at [24]
[84]PCB 37 - 38
[85]PCB 129
74As to the opinion of Dr Mian, called in aid by the defendant, his opinion as to capacity is predicated on the plaintiff having significant treatment. As she has not had such treatment, his opinion is speculative and I put it aside.
75In a situation where I largely put aside the plaintiff’s evidence as to capacity I consider I must still have regard to the evidence overall. Having done that I find the predominance of evidence favours a finding of total incapacity as a result of the left hip injury. This is the evidence starting with Dr Widjaja and ending with Dr Rizkallah. Having found the plaintiff is totally incapacitated for work and certainly on a reliable and consistent basis, I find her current earning capacity is $0. She has therefore sustained a loss of over 40 per cent of her without injury earning capacity. That is a serious injury. Furthermore, it entitles her to determinations for both loss of earnings and pain and suffering.
The alleged injury to the spine
76Given the principles in Peak set out above the alleged spine injury must also be considered. First to identify the injury alleged and in that to deal with causation. Then to identify the body function impaired and last to deal with the impairment consequences. It is therefore necessary that I consider the plaintiff’s case in regards to the spine and any pain and suffering consequences. [86]
[86]14 VR 622
77Variously the injury to the spine has been described as injury at the cervical and lumbar levels.
78The injury to the spine is best identified by Dr Moaveni in the following terms:
(a) Cervical spine soft tissue injury including C6 root lesion;
(b) Aggravation of pre-existing lumbar spine degenerative changes.
79It is similar to the opinion of Dr Awad.[87] Arising from the spine, Dr Moaveni’s opinion is based on radiology and physical examination, in which he recorded no abnormal behaviour.[88] I do not consider these methods of assessment to have been significantly affected by the plaintiff’s unreliability.
[87]PCB 105
[88]PCB 119
80The major area of dispute is that over causation. The relevant treating specialist Mr Lim who she saw in March 2017 reported some low back pain but that the spine was normal. He essentially believed that the low back pain was the left hip issue.[89] Her treating doctor certainly recorded issues to do with the neck and right arm in mid 2017 and sent her to Mr Morris. He thought she had a C7 radicular component to her pain and recommended investigation and treatment. However his reporting makes no comment on causation. Dr Widjaja did not deal with the spinal injuries. Nonetheless, I note again that Dr Rizkillah opined that both the spine and left-hip injury are work related. The other treating doctors are silent as to causation.
[89] PCB 104
81The medico-legal reporting for the plaintiff is compromised by reason of the lack of an accurate history. I have set out the deficiencies in the reporting of Dr Moaveni. The same attends the reporting of Dr Awad who had an entirely incorrect history of worsening constant pain after 2014 relating to the spinal problems. This is not correct in respect of the spine when regard is had to the treating doctor notes, with almost no reference to spinal problems, but rather left hip issue until after cessation of work.
82Dr Love’s reporting provides some support.[90] As does Dr Siu.
[90] DCB 31-32
83Overall I do not consider the evidence supports a finding of causation as to the spinal injury, either at the cervical or the lumbar levels. I come to this finding noting in particular the reporting of Dr Lim who found nothing untoward in the spine in 2017 and the fact that Dr Morris makes no positive finding on causation. While there is some opposing material from Dr Love and Dr Siu overall, I consider that the opinion of Dr Dickinson is more likely correct given also the lack of contemporaneous complaint. I do not find that the plaintiff’s spinal conditions are work related.
What are the pain and suffering and loss of earning consequences of the spinal impairment?
84Given the instruction in Peak as to identifying all the impairment consequences in a situation where there are 2 injuries said to be producing such consequences I note that in this case I have made findings only in respect of the occupational incapacity impairment consequences flowing from the left hip injury. As such I will only consider the occupational impairment consequences flowing from the spinal injuries as these overlap.
85While many of the treating doctors, specialists and medico-legals are not asked to disentangle the plaintiff’s injuries, Dr Moaveni provided separate opinion on the consequences of plaintiff’s spinal injury, finding that she did not have capacity for suitable employment and that this was permanent.[91]
[91]PCB129
86Dr Rizkillah similarly finds she has no capacity for employment, though he does not identify whether this is due to her left hip or spinal injury.[92] However, in regards to the lower back pain, he records:
this is preventing her from standing, sitting or walking for more than 15 minutes at a time. Ms Boules is in constant pain and is suffering on a daily basis from her lower back pain. She is unable to independently complete self-care tasks such as dressing herself, groom her hair and washing herself. She cannot complete domestic duties such as cleaning her own home, making her bed or changing her sheets and she has therefore lost her independence and quality of life. Ms Boules requires assistance from a carer to complete these tasks. [93]
[92]PCB 37
[93]PCB 36
87Meanwhile he attributes to the injuries to her neck as:
…leading to very limited functionality of the right limb. This in turn limits her ability to successfully complete simple tasks such as lifting a kettle or raising a saucepan of pasta. This is a debilitating condition for Ms Boules to suffer as she attempts to complete her normal daily activities.” [94]
[94]PCB 36
88I consider the functional limitations he records to support that Ms Boules would not have capacity for suitable employment as a result of the spinal injuries. However, I note Dr Rizkillah appears to be relying on Ms Boules’ account of the consequences of her injuries. Due to my concerns about her credibility, I cannot give it much weight. I further note that Dr Rizkillah’s considerably emotive language borders on advocacy. For both these reasons, I do not find it provides an objective account of her occupational impairment consequences.
89Having made those findings I repeat that I consider that the occupational impairment consequences resulting from the left hip injury can be delineated from those resulting from the spine injury as set out above. That delineation results in a finding that the left hip injury caused by employment with Ramzy has left the plaintiff with no work capacity which is a permanent condition.
90I will ask the parties to provide Minutes of Consent to give effect to this judgment and deal with outstanding issues as to costs.
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