Hiriyur v Victorian WorkCover Authority

[2014] VCC 884

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-12-06197

YUVURAJA HIRIYUR	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 June 2014
DATE OF JUDGMENT:	3 June 2014 (Revised)
CASE MAY BE CITED AS:	Hiriyur v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2014] VCC 884

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the low back – pain and suffering damages only

Legislation Cited:     Accident Compensation Act 1985

Cases Cited:Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Transport Accident Commission v Kamel [2011] VSCA 110

Judgment:                 Leave granted to bring proceedings for the recovery of pain and suffering damages.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Valiotis	Ryan Carlisle Thomas
For the Defendant	Mr R Kumar	Hall & Wilcox

HIS HONOUR:

1       This application pursuant to the Accident and Compensation Act 1985 (“the Act”) seeks leave to bring proceedings for the recovery of pain and suffering damages only.  It relies on an injury to the low back, being an aggravation of degeneration of the spine resulting in an impairment of the spine.

2       The plaintiff alleges he was injured in the course of a six-month contract of employment with Wurth Australia (“Wurth”) from the end of 2008 and was injured in particular on or about 24 April 2009.

3       The plaintiff went before a Medical Panel in May 2010[1] in relation to no fault benefits.  The three-doctor Panel determined on 24 January 2010 that the plaintiff had suffered a compensable injury by way of aggravation of degenerative changes of the lumbar spine. 

[1]Plaintiff’s Court Book (“PCB”) 85e

4       The Panel said that the condition was still materially contributed to by the work injury.  Accordingly, weekly benefits for 130 weeks and treatment expenses were paid up to a letter from CGU Insurance in December 2012 ceasing payment.[2]

[2]Defendant’s Court Book (“DCB”) 77

5       The first defence to this application is that the compensable injury has in effect ceased to play any causative role in the plaintiff’s symptoms.  His spinal problems are now constitutional and not work-related is the argument.

6       Secondly, the defendant argues if there is still the material contribution from employment, the consequences of the impairment are not “serious”.[3]

[3]Transcript (“T”) 17-19, T70-71

7       The plaintiff is a forty-six-year-old man who is well motivated.  After coming to Australia from India in 1995, he immediately obtained factory work.  He was employed in different factory jobs and started with Wurth on 3 November 2008.                  

8       He had some minor low back symptoms in February 2007 but I find on the evidence they played no part in his present symptomology.  He had returned to normal duties after one week off work at that job.

9       With Wurth, he had performed full-time, repetitive and onerous work before being injured on 24 April 2009.[4]  His contract had only one week to run so the plaintiff was keen to keep going at his job.

[4]PCB 22

10      His symptoms worsened and he saw his local general practitioner, Dr Jayasinghe, on 24 April 2009.  This doctor had been the plaintiff’s local doctor since 2005.[5] 

[5]PCB 32

11      The plaintiff started working at a different job shortly thereafter but did not last more than four days.  He even tried door-to-door insurance sales to see if less physical work suited but he could not make a living out of it.  He applied for 300 or so jobs of a non-physical type in the two years or more he was off work.  He completed two TAFE courses to upskill, such was his desire to be re-employed in spite of ongoing symptoms.

12      Eventually, through a personal contact, he obtained his present job with Avadek in January 2013.  It is a manual job as a machinist.  Fortunately, it has a mixture of duties involving standing, sitting, and some duties that are really not physical and more clerical.  It allows a variety of postures and does not involve constant spinal strain and exertion.[6] 

[6]PCB 27

13      He still finds the current job very painful and constant pain accompanies him in the back and into the left leg.[7]  Standing in particular is a problem in causing symptoms.[8]  He may even have to quit the job.[9] 

[7]T42-43 and 54

[8]PCB 27

[9]T53

14      This case raises the issues when a worker returns to full-time alternative duties after being injured and seeks leave for pain and suffering consequences.  It is pivotal in such applications to assess the plaintiff’s credit.

15      It has been said that it is a question of fact, degree and value judgment in judging consequences by comparison with other cases in the range of possible impairments of a body function in order to see if they can be fairly described as being more than significant or marked and as being at least very considerable.

16      This is a case where radiology demonstrates some pathology but it could not be described as major or gross for a manual worker now aged forty-six years who was injured at age forty-one years.

17      Accordingly, his credit is fundamental to an assessment of his pain and suffering consequences.  In this case, there was no real attack on the plaintiff’s credit.  No doctor reported at clinical examination, any exaggeration or inappropriate behaviour.

18      The plaintiff was the only witness to give oral evidence.  He was a very matter-of-fact witness who did not embellish his problems.  I accept he is an honest and reliable witness.

19      Dealing with the defendant’s first argument that the plaintiff’s symptoms are not now caused by his work injury, it is worth briefly recording some of the medical opinions.

20      I note the recent repeal of s135AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied it.  Accordingly, there is no necessity to go into great detail with respect to these medical opinions in terms of this case where they are largely self- explanatory.

21      A general practitioner provided a report in February 2013.  He recorded the plaintiff was a positive person and described the referrals for various treatments.[10]  The diagnosis was a lumbar disc bulge with foraminal stenosis and compression of the nerve root sustained during the course of his employment.[11] 

[10]PCB 33-34

[11]PCB 34

22      While the general practitioner deferred to specialists about capacity for work and future treatment, he nevertheless was dealing with a condition he thought permanent.[12]  He accepted the injury impacted on social and other daily activities.

[12]PCB 35

23      The report of February 2013 described how Mr Khan, the treating orthopaedic surgeon, opted for conservative treatment and arranged for the Victorian Rehabilitation Centre course.[13]  I reject the defendant’s argument that because Mr Khan is an absent witness and as there is no report from him, I should draw an adverse inference.  In the circumstances where surgery is not advised by any doctors, and in view of the general practitioner’s note about Mr Khan’s views, this does not amount to a situation where an adverse inference is warranted.

[13]PCB 33

24      If I am wrong on that and an adverse inference should be drawn that a report from Mr Khan would not assist the plaintiff’s case, that would not alter the findings I have made on all the evidence I have heard and read.

25      The general practitioner reported in February this year that the plaintiff was still suffering pain and was very stressed.[14]  He noted the ongoing chiropractic treatment and the various visits to the pool and various gymnasium rooms.[15]  The diagnosis and comment on causation are identical to what he had said in 2013.  There is also a Medical History Report of 14 June 2013 to a life insurer tendered.  Importantly, it records clearly:

“Work-related back injury causing chronic back and leg pains.”[16]

[14]PCB 43

[15]PCB 43

[16]DCB 82

26      I accept the general practitioner’s evidence.  He has seen the plaintiff since 2005 up to the present time.  He supported the ongoing injury suffered in the course of employment was still causing pain and requiring conservative treatment some five years after that injury occurred.

27      I also find he supported the plaintiff’s evidence of ongoing pain and other consequences that are very considerable in terms of daily life.

28      Other documents headed “Pound Road Medical Centre” have in fact been tendered but they are in fact documents from the multi-disciplinary team at the Victorian Rehabilitation Centre.[17]  These documents are from 2010 and do not assist greatly now on the relevant issues.  What is clear though is, firstly, it is a work-related injury these people were dealing with.[18]  Secondly, the plaintiff is motivated to follow his rehabilitation.[19]  Thirdly, it is an extensive multi-disciplinary course the plaintiff went through in order to better manage pain.[20] 

[17]PCB 37-40 and 45a-48

[18]PCB 37

[19]PCB 39

[20]PCB 39-40 and 47

29      A physiotherapy report from Y Arslan of February 2013 detailed that the plaintiff was first seen in 2009 and last treated in 2013 when the insurer ceased funding physiotherapy.[21]  This was in spite of the physiotherapist stating the plaintiff benefited from the treatment and still required it fortnightly.[22]  The physiotherapist stated clearly that the presenting symptoms were work-related when asked a specific question about causation.[23] 

[21]PCB 60

[22]PCB 62

[23]PCB 61

30      Dr C Thomas reported in 2010, so it is out of date and really is in the context of the Victorian Rehabilitation Centre course.  He recorded the plaintiff’s very good approach and attitude to the course.  As to the defendant’s first argument, Dr Thomas diagnosed a back injury with radiation into the left leg was an injury sustained whilst at work.[24]  He found the plaintiff genuine.  As to judging consequences now, the report is not of much assistance given its date. 

[24]PCB 65

31      Dr V Wilk treated the plaintiff at the Brighton Spinal Group on 2012.  He gave a course of injections.  The plaintiff said there were more than six or seven injections and they were very painful.[25]  Again, this report is somewhat dated but when he last saw him, Dr Wilk reported the plaintiff was struggling with symptoms in the context of driving.  He was also precluded from activities outside of work due to his physical injuries and so precluded for the foreseeable future.[26]   He specifically stated that the back injury was directly related to his employment.[27]  He also thought in 2012 that the condition had roughly stabilised.[28] 

[25]T38

[26]PCB 67c

[27]PCB 67c

[28]PCB 67d

32      The last of the treaters’ reports is from the chiropractor, Dr J Kaloger, in May 2014.  He started treating the plaintiff in August 2013 and still does.  It was for a work-related injury that caused chronic lower back pain.  After the insurer stopped paying, the plaintiff pays the chiropractor himself.  Relief for a few days occurs, the report stated, but certain types of activity affected the level of pain.  The chiropractor clearly considered the pain was caused or contributed to by the work injury.[29]

[29]PCB 67g and h

33      The plaintiff also saw another surgeon, Mr M Rogers, for treatment.  There is no report from him.  The defendant asked that an inference be drawn against the plaintiff.  I do not agree.  Mr Rogers referred the plaintiff off for more conservative treatment to the Brighton Spinal Group and Dr Wilk.[30]           

[30]DCB 80

34      The probabilities are that there were no surgical options open and the absence of Mr Rogers’ report does not warrant any adverse inference in the circumstances of this case in view of the general medical evidence.  If it does warrant such an inference, it does not alter the findings that I have made on the doctors’ opinions which I have been given.

35      The only medico-legal report for the plaintiff was from Mr G Grossbard, orthopaedic surgeon, in December 2013.  I reject the defendant’s argument that because he did not say it by way of a specific comment, that this report failed to support the plaintiff’s case that his symptoms are still caused by the work injury.  A reading of the whole report leads to a conclusion that this doctor is not troubled at all about the work injury relationship and the current symptoms. 

36      He diagnosed soft tissue injuries that caused back pain, together with sciatica that had now resolved.[31]  He felt the plaintiff’s lighter alternative duties were wise.  The plaintiff needed to stay away from work involving bending, lifting, pushing or pulling, and which allowed him to move around intermittently as required.  These restrictions, which I accept, are not only relevant to a workplace but must, of necessity, intrude into many activities of daily life, around the house, socially and recreationally.  A fair appraisal of those limits for a relatively young man supports very considerable consequences in terms of restricted daily life activities. 

[31]PCB 83

37      The defendant’s medical material commences with another surgeon the plaintiff was sent to for treatment, Mr Xenos, neurosurgeon, in 2009.  He thought there was no major structural problem that surgery would help.  Work had aggravated a lumbar spine condition and he needed pain management at the Victorian Rehabilitation Centre.

38      The plaintiff’s future work career, he said, should involve vocational retraining and avoiding any repetitive bending and lifting.[32]  This is a very early report, putting serious restrictions on the plaintiff’s future activities.  This report supported permanent restrictions as a result of the work injury but it was a report given in very early days. 

[32]DCB 8

39      Mr Sinha gave four reports or letters that are now close to five or so years old.[33]  He only saw the plaintiff once, on 3 June 2009.  Accordingly, his reports are not particularly relevant to assessing the issues now.  He found the plaintiff genuine and he thought he had exacerbated underlying pre-existing degenerative disease.[34] 

[33]DCB 31-41

[34]DCB 34

40      He then wrote a very brief letter, some twelve days later, on 15 June 2009, and said, with respect to causation, that:

“The effect of the aggravation has ceased.”[35] 

[35]DCB 37

41      I do not follow the reasoning.  He indicated some Investigation Report had been sent to him but it is not part of the evidence in this case.  I have no idea what it said.  I cannot speculate about that.  How it led the doctor to say the working capacity, or the work injury’s effects had resolved substantially by 15 June 2009 is mere guesswork.[36] 

[36]PCB 36

42      Similarly, further very brief letters of 30 October 2009 and 11 November 2009 are unsatisfactory.[37]  He had been sent some further medical reports but I do not have the details of them.  They are not identified sufficiently in regard to reference “the surgeon” or as to the dates.[38]  I do not accept Mr Sinha’s opinion that work caused an injury, and then this change of opinion was warranted for reasons that are not adequately explained in his documents. 

[37]DCB 39 and 41

[38]DCB 39

43      He did not see the plaintiff again for further examination or enquiry about what some Investigation Report may have contained.  His only examination was barely some six weeks after the trauma on 24 April 2009.  It was far too early.  His opinions are based on very inadequate and unexplained information.  I do not place any reliance on the opinions of Mr Sinha. 

44      The defendant has neither tendered the relevant Investigation Report nor identified precisely what medical reports were ever sent to Mr Sinha.  This application highlights the disadvantage of not hearing from a medical witness.

45      Mr C Jones saw the plaintiff in December 2012 and 2014.  In essence, he thought the work injury had caused the back and thigh symptoms but then it ceased to be a cause.  He said the cause was then constitutional or had become constitutional.  As with all the other doctors who saw the plaintiff in this case, he made no adverse comment about the plaintiff’s presentation, answers or conduct at clinical examination.[39]                   

[39]DCB  20 and 28

46      In 2012, he noted treatment from the Brighton Spinal Group could help the plaintiff but curiously said that the plaintiff is:

“… not into pain management strategies.”[40]

[40]DCB 21

47      What this means when the plaintiff had completed an intensive multidisciplinary pain management course at the Victorian Rehabilitation Centre is very puzzling.  Mr Jones had also been sent a very selective set of documents.[41]  For example, the reports to CGU from the Victorian Rehabilitation Centre do not appear to have been sent and yet CGU funded such a course.[42]       

[41]DCB 24

[42]PCB 37 and 45a

48      Mr Jones’ opinion is not adequately explained.  Precisely when did the man’s constitution take over from the work injury and start causing symptoms?  How and why did this suddenly occur?  He simply did not elaborate.  He, in effect, just made the bald statement that:

“The work related injury of April 2009 has now resolved.”[43] 

[43]DCB 22

He concluded with the statement:

“Mr Hiriyur is not interested in gymnasium or swimming attendances.”[44] 

This is just plainly inconsistent with the evidence in this case.  What that view is based on is nowhere explained.  The plaintiff is so interested in these attendances that he pays for them himself and goes on Friday nights after work. 

[44]DCB 23

49      In a short letter in February 2013, Mr Jones did not change his opinion when the Medical Panel opinion was sent to him.[45]  He still gave no logical basis for his view that the sudden resolution of the work injury to the plaintiff’s back had taken place and it was a constitutional matter that had taken over.

[45]DCB 25

50      His 2014 report similarly did not explain his views.  The work related aggravation had resolved and he said: 

“… spinal degeneration is a possible cause.”[46]

[46]DCB 29

51      He was asked about Waddell’s signs in Question 8, and what his answer meant is vague and ambiguous.  What “reactivity” meant is not clear.  His final view was that one would normally expect any employment injury of this nature to resolve.[47]  He did not explain why and when that would be.  He did not say anywhere why work would cause symptoms to start, then why that cause would cease, and the constitution of the spine in this man in his mid-forties, just somehow take over.    

[47]DCB 30

52      I reject the opinion of Mr Jones on causation.  I prefer the body of treating doctors who have seen the plaintiff on numerous occasions.  They are, in my view, in a more educated position thus of assessing a medical picture, and their opinions are more logical, clearer and more readily understood. 

53      In the absence of hearing Mr Jones explain his opinion on the present cause of the plaintiff’s symptoms from his reports, I am unable to accept his view.  He does not comment at any length on consequences, save to say he thought, as to symptoms, that they were highly likely to continue.[48] 

[48]DCB 29

54      As a matter of probability I find the consequences of the spinal impairment are still work related.  I also find they are very considerable.  I will record my comments and findings in relation to those consequences.

55      The principal consequence of the spinal injury is pain.  I accept the plaintiff’s evidence that it is constant in the back and left leg.[49]   In the witness box he emphatically repeated that he is never free of pain.  The severity can vary depending on what he does but it is there all the time and it has now been there for some five years.[50] 

[49]PCB 23, 27-28

[50]T41-42, 47

56      The endurance of daily pain requiring painkilling medication, whether it be by prescription or over-the-counter, tends towards establishing very considerable pain and suffering consequences.[51]  In this application, I find it is a very considerable consequence.     

[51]See Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267

57      The treatment he has had supports this.  That has included multiple painful spinal injections.[52]  Medications have been relied on that include Endone, Lyrica, Panadol Osteo, Voltaren as well as Panadol.[53]   Side effects were suffered as a result of some of the prescription drugs.  He takes Panadol usually three or four times per week now.[54]  Hydrotherapy, physiotherapy and self-managed pool exercises have been undertaken.  He still does the pool exercises.  He underwent a four-month pain management program at the Victorian Rehabilitation Centre.[55]  He completed that program, but his constant pain remained unchanged.[56] 

[52]T38-39

[53]PCB 23-24

[54]PCB 27

[55]PCB 23

[56]PCB 45a

58      He was referred to a number of specialist surgeons, but surgery was not recommended.  He has been treated at a specialist spinal clinic, the Brighton Spinal Group.  He has undergone extensive scanning including five MRI scans.  He has undergone chiropractic treatment now over a number of months and is still undergoing such treatment, which he is paying for himself.

59      This man has achieved nothing more than some temporary relief.  There is really nothing more he can do treatment-wise than what he is doing at the present time.  Some spinal blocks were offered to him, but due to the failure of the series of the painful spinal injections at the Brighton Spinal Group to provide any lasting relief, he declined.[57]  I accept that was a reasonable decision.  

[57]PCB 27

60      This extensive treatment is consistent with constant and at times very severe pain that impacts on his working and daily life.  What is even more informative in this case is that the plaintiff has had to fight for his treatment.  The insurer would not pay, so the plaintiff contested it through the WorkCover litigation channels.  The insurer referred it to a Medical Panel.  The Panel supported his case on causation.[58] 

[58]PCB 85e

61      He was off work for over two years and undergoing various forms of investigation, referrals and treatment.  The insurer ceased paying for treatment by letter of 13 December 2012.[59]  The plaintiff pursued the issue again through WorkCover litigation.  He was successful again and agreement was reached apparently that a further six months of gymnasium/pool membership and further visits to his general practitioner be funded by the insurer.

[59]DCB 77

62      This is all consistent with ongoing constant pain.  It is also consistent with the plaintiff being very determined to give himself the best chance of coping with that pain.  Perhaps even more compelling is the fact that when the additional funding expired at the start of this year, the plaintiff has continued to attend the pool/gymnasium after work and pay for it himself.  He pays for painkillers and still goes to his general practitioner, using Medicare and his own funds to do so.  He pays for monthly chiropractic himself.[60]  This is all consistent with my finding that he has constant disabling pain and has taken all reasonable steps to cope with it.

[60]PCB 27

63      His return to full time work has to be put in perspective.  Prior to his spinal injury in April 2009, he had a demonstrated capacity for full-time factory manual labour.  His work record speaks for itself.[61]  After the six months contract with the defendant expired, he found another job.  He only lasted four days at it in May 2009, due to his spinal symptoms.[62]

[61]PCB 21-23

[62]PCB 22

64      He undertook his two courses to qualify for non-manual work and applied for over 300 jobs.  He could not keep working as the insurance salesman, partly due to the driving and it not been financially rewarding.[63]  Driving was not a problem before his workplace injury.  Through a personal contact he found his current factory job.  It is basically non physical where he can also sit and stand and alter his posture.[64]    

[63]PCB 27

[64]T42-43, 54

65      He is struggling with back symptoms to keep going and the concerns and worries that this motivated worker has as to his future are well founded.[65]   He usually goes straight to the pool/gymnasium after the week’s work ends on Fridays.[66]  He is exhausted after work.[67]  I accept that his summary of his continuing to work was accurately described when he said:    

“Basically all my energy goes into working.  I’m exhausted and sore when I come home from work, and I do very little around the house.”[68] 

[65]PCB 27 and 29

[66]PCB 28

[67]PCB 27

[68]PCB 28

66      His impaired earning capacity for unrestricted work, suffered when he was still only in his early 40s, has caused him to accommodate work by losing activities recreationally, socially and around the house.  These losses are very considerable consequences in terms of lost enjoyment of life.[69] 

[69]PCB 24-25 and 28

67      Interference with his sleep is, of itself, a very considerable consequence.  The expectation of a good night’s sleep has been commented upon often in this jurisdiction.[70]  It applies to this application. 

[70]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

68      He is wakened every night due to back symptoms.[71]  Not surprisingly, this tires him during the day.

[71]PCB 24, 28; T47-49

69      

In the end, I found the plaintiff a man who is highly motivated.  He stoically puts up with his pain and resolutely deals with it as best he can to keep working.  His stoicism does not cloak the reality of his pain.[72]

I reject the defendant’s second argument that the pain and suffering consequences in this case are not at least very considerable.  I also reject the defendant’s argument that I should have doubts about his evidence as to pain and sleep interference. 

[72]See Dwyer v Calco Timbers (No 2 )[2008] VSCA 260; Sutton v Laminex Group Pty Ltd (2012) 31 VR 100; Transport Accident Commission v Kamel [2011] VSCA 110

70      The plaintiff was a reliable witness.  In cross-examination, he was consistent and emphatic and indeed on these topics repeated and reinforced the evidence that he had already sworn to in his affidavits.

71      For the above reasons I grant leave to bring proceedings for the recovery of pain and suffering damages.

- - -