Islam v VWA

[2019] VCC 1211

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-01013

KHANDAKER ISLAM	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 & 23 July 2019
DATE OF JUDGMENT:	9 August 2019
CASE MAY BE CITED AS:	Islam v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 1211

REASONS FOR JUDGMENT

Subject:  ACCIDENT COMPENSATION      

Catchwords:   Serious injury application - pain and suffering conceded - loss of earning capacity - injury to cervical spine - psychiatric injury - attempted return to work

Legislation Cited:                Accident Compensation Act 1985 (Vic)

Judgment:  Leave granted to the plaintiff

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Mr P Haddad	Slater and Gordon
For the Defendant	Mr P Jens QC with Mr E Makowski	Thomson Geer

HER HONOUR:

1 The plaintiff, Mr Khandaker Islam, is 51 years old. He applies for leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) to issue common law proceedings for the recovery of damages for pain and suffering and loss of earnings in respect of an injury suffered to the cervical spine in January 2013 (and/or during the course of employment) while working for NCH Australia Pty Ltd (‘NCH’) as a sales representative. He applies for leave under sub-paragraphs (a) and (c) of the definition of ‘serious injury’[1].

[1]Section 134AB(37) of the Act.

2       In January 2013, the plaintiff was carrying a torrent bag weighing 12-14 kg when the strap broke and he experienced back and shoulder pain as he tried to lift it from the ground. During further heavy lifting in September 2013, he felt an increase of pain in his neck and shoulder. He saw his general practitioner in late November 2013 complaining of neck and left arm pain.[2]

[2]PCB, p 124.

3       Radiological investigations in late November 2013 revealed disc protrusions at C5/6 and C6/7, with compression of the cervical cord at C6/7 and impingement on the left C7 nerve root.[3]  As a result of the injury, he suffered symptoms of left radiculopathy which were treated initially with conservative treatment (including pilates, physiotherapy, hydrotherapy and psychological counselling), and multidisciplinary pain management, but which ultimately required surgery. He worked on restricted duties on and off throughout 2014 until he ceased work in April 2015. During this time, he made a claim to WorkCover which was accepted, and sought and obtained approval for surgery. In 2016, he had some pain management and psychological counselling. On 19 September 2016, NCH terminated his employment due to his inability to work for a period of more than 12 months. The plaintiff had pain management in early 2017, CT-guided steroid injections in April 2017, and started seeing a psychiatrist, Dr Aggarwal, in August 2017 who diagnosed a Major Depressive Disorder and prescribed medication and ongoing treatment. On 8 December 2017, a different insurer accepted liability for surgery.

[3]See MRI scan report dated 25 November 2013 at PCB, p 181.

4       On 22 January 2018, he underwent a C5-C7 anterior cervical discectomy, decompression of the spinal cord and nerve roots and spinal fusion.[4] His symptoms improved somewhat after surgery and, with the initial support of his treating surgeon, he commenced Uber driving in August 2018, driving up to 20 hours per week. He also drove for Didi.  As a result of that activity, he suffered increased neck pain as well as the onset of lower back pain extending to the right leg[5] and he reduced his driving to around 12 hours per week by October 2018. He earned a total of $21,314.08 from the driving work between 17 July 2018 and 29 January 2019.[6]

[4]See report of treating neurosurgeon, Mr Patrick Lo, dated 24 April 2018 at PCB, p 83.

[5]Radiological investigations of the lumbar spine revealed disc protrusions at L3/4 and L4/5 impinging on the L4 and L5 nerve roots.

[6]According to the analysis of the plaintiff’s financial documents provided by the defendant. See Exhibit 1.

5       The plaintiff ceased Uber driving in March 2019 on medical advice. He says that he continues to suffer neck pain requiring medication (which he has been taking since 2013), and also suffers back pain. The plaintiff says that as a result of his neck injury, taken alone, he has at best a work capacity of 15 to 20 hours per week in a sedentary role.

6 The application under sub-paragraph (c) of the Act relies on the medico-legal psychiatric opinion of Dr Ash Takyar[7] to the effect that the plaintiff suffers a chronic Adjustment Disorder with mixed anxiety and depressed mood secondary to his physical injury and that, on a psychiatric basis, taken alone, he has a capacity to work seven to ten hours per week in administrative roles.

[7]See his report dated 22 October 2018 at DCB, p 71.

The issues

7       At the hearing, the defendant conceded pain and suffering in relation to the neck injury. The defendant submitted that the plaintiff has not discharged the onus he bears to establish a permanent loss of capacity of 40% or more resulting from the cervical spine impairment, taken alone. The defendant submitted that the plaintiff must disentangle the consequences of the cervical spine impairment from those flowing from the lumbar spine symptoms and has not done so.

8       In relation to the application under sub-paragraph (c), the defendant submitted that the plaintiff ceased working as an Uber driver due to his physical pain in the lower back and not due to any psychological symptoms and that he has said he continues to search for work, and would do light work. For these reasons, the defendant submitted that the plaintiff has not discharged the onus he bears to establish that the consequences of his psychological injury meet the narrative test for serious injury.

9       The parties agreed that 60% of the plaintiff’s “without injury” earnings figure is $50,500 per annum or $971.15 per week.

The hearing

10      The plaintiff swore three affidavits in support of his application. At the hearing, he adopted the contents of those affidavits and was cross-examined. No other witnesses were called. The parties tendered the material relied upon. I have considered all the evidence and the submissions made by counsel.

The plaintiff

11      The plaintiff was born and educated in Bangladesh. He completed Bachelor’s and Master’s degrees in Chemistry. For the next eight years or so, he worked as a senior medical executive for pharmaceutical companies.

12      He migrated to Australia in March 2003, and obtained further qualifications in Information Systems Management. He then worked in various customer service roles. In 2006, he completed a Certificate III in nursing and worked as an aged care support worker for six months.

13      He commenced working for NCH full-time as a sales representative in early September 2007. His duties included promoting chemical products and servicing waste water machinery such as by changing contaminated liquid from torrent machine drums. In order to perform his duties, he carried his tools, grease and materials with him in a torrent bag weighing 12-14 kg.

14      In January 2013, the shoulder strap of the torrent bag broke as he went to lift it from the ground, causing him back and shoulder pain. In September 2013, he was attempting to lift a second unit of BioAmp (a computer-controlled microbial fermentation unit) into his car, when he felt an increase of pain in his neck and left shoulder.

15      It is common ground that the plaintiff did not complain to a doctor of neck pain arising from his work with NCH until November 2013. He explained at the hearing that this was because he needed to work to support his children at university.

16      He consulted his general practitioner, Dr Zannat, in relation to his injuries, and had physiotherapy, pilates, hydrotherapy and psychological counselling. He was taking anti-depressants, Voltaren gel, Lyrica, Panadeine and Panadol, and using heat packs, for his symptoms. He had physiotherapy on and off between November 2013 and August 2015.  

17      After November 2013, the plaintiff had periods off work as well as periods back at work on restricted duties and for limited hours with no driving, bending, twisting or heavy lifting, no sitting or standing for long periods, and no excessive twisting of the neck.[8] In April 2014, Mr Lo recommended a return to work on reduced hours and with restrictions (including no long periods of driving, bending, twisting his neck or lifting more than 5kg). In early July 2014, Mr Lo considered the plaintiff was fit to return to full-time work, including driving, provided he did not lift more than 5kg.

[8]See report of Mr Patrick Lo dated 18 February 2014 at PCB, p 63.

18      Unfortunately, by May 2015, after having returned to pre-injury duties, including heavy lifting and some additional duties, the plaintiff’s condition worsened.  Mr Lo sought authorisation to perform a multi-level anterior cervical discectomy and fusion. The plaintiff ceased work for five months.

19      In July 2015, noting that the plaintiff’s neck symptoms had worsened when last at work, Mr Lo, certified him unfit for full pre-injury duties and imposed restrictions of no lifting more than 5kg and no raising his arms above shoulder height.[9]

[9]PCB, p 69.

20      His WorkCover claim concerning his neck injury was accepted on 16 October 2015. Approval for multi-level cervical discectomy and fusion was obtained in December 2015 but the plaintiff’s condition improved slightly and Mr Lo recommended persisting with conservative measures. The plaintiff continued to have physiotherapy. On 18 February 2016, Mr Lo imposed driving restrictions of 30 minutes and permitted short hours of light office-based duties which did not require lifting any weights, sitting or standing for prolonged periods, or pulling, pushing, or reaching for items.

21      In May 2016, after repeat MRI of the cervical spine, Mr Lo considered that the plaintiff’s neck condition had stabilised and was unlikely to improve significantly in the future.[10] 

[10]PCB, p 70.

22      In late June 2016, Mr Lo reported to the plaintiff’s general practitioner, Dr Zannat, that the plaintiff was “still at an impasse with no foreseeable occupational options”[11]. Mr Lo referred the plaintiff for a multidisciplinary pain management program and reported on 21 August 2016[12] that any return to work would depend on the result of that program and would include restrictions including no lifting over 5kg; no prolonged sitting or standing; no pushing or pulling or reaching for items; no sudden or excessive bending or twisting.[13]

[11]PCB, p 72.

[12]PCB, p 73.

[13]PCB, p 75.

23      

On 23 January 2017, a 130 Week Vocational Report by AMS

Consulting Group[14] noted the restrictions imposed by the plaintiff’s general practitioner, Dr Zannat, in December 2016 as: no weight lifting; no pulling, pushing, bending, or reaching for items; no prolonged sitting or standing for more than 45 minutes; no sudden or excessive twisting of the neck; and driving for no more than 30 minutes. Working hours were limited to 12 hours per week in a role as internal sales representative, market research interviewer, or IT help desk technician. The report also noted the restrictions, in similar terms, imposed by Mr Lo, who anticipated a graduated return to work over a number of weeks. The report identified a number of suitable job options, all of which were clerical or administrative, and noted that a search of vacancies in these options revealed that some advertised positions were for part-time casual work.

[14]DCB, p 113.

24      By April 2017, Mr Lo reported that the plaintiff’s symptoms of neck and shoulder pain continued. Mr Lo felt that surgery would be required.[15]

[15]PCB, p 79.

25      Ms Mary Oliver, of Flexi Personnel, reported on 18 April 2017 that, in the light of the physical restrictions flowing from his neck injury, the plaintiff would find it difficult “to efficiently and productively perform alternative workplace duties into the foreseeable future”[16]. She stated that he could only be considered for a position if his doctor provided a medical clearance outlining the hours and duties he may safely perform.

[16]PCB, p 200.

26      On 24 April 2017, Mr Lo reported to the plaintiff’s solicitors[17] that work duties and, in particular the events of January and September 2013, had aggravated the plaintiff’s “mild underlying degenerative condition to a point where he now has nerve compression and radiculopathy”[18]. Mr Lo indicated that conservative treatment had failed and that the plaintiff required a nerve sheath injection, and then surgery. Without surgery, Mr Lo considered that the plaintiff’s condition may deteriorate over time and he may develop permanent nerve or cord damage.[19] Mr Lo considered that the plaintiff had no work capacity.

[17]PCB, p 77.

[18]PCB, p 78.

[19]PCB, p 80.

27      The plaintiff became depressed and anxious as a result of his neck and shoulder pain and received psychological treatment from Mr Milan Pekic during 2016.

28      The plaintiff underwent C5-C7 anterior cervical discectomy, decompression of the spinal cord and nerve roots and spinal fusion on 22 January 2018. Initially, his mobility and pain improved[20], but Mr Lo remained doubtful that he would ever return to the workforce. “The purpose of the operation”, Mr Lo noted, “is to ensure that he does not worsen or develop permanent neurological deficits”[21]. Mr Lo considered that this objective of the surgery had been achieved. He considered that there remained a risk of adjacent level degeneration and that future surgery may be required to control his pain and that adjacent level degeneration.

[20]PCB, p 83.

[21]PCB, p 84.

29      By 10 July 2018, Mr Lo reported that the plaintiff’s condition had stabilised clinically after surgery, which was “an extremely good outcome”[22]. He felt that while the plaintiff was permanently incapacitated for his pre-injury duties, he could be retrained for office-based duties and it was appropriate to lift many of his physical restrictions. He considered that the plaintiff could work as an Uber driver “for the interim”[23].

[22]PCB, p 87.

[23]PCB, p 87.

30      However, when Mr Lo reviewed the plaintiff on 2 October 2018[24], the plaintiff told him that he had suffered an exacerbation of neck and lower back pain. Mr Lo noted that the neck pain was “being managed adequately with physical therapy” but that the lower back and right leg pain were becoming “an issue”.

[24]PCB, p 88.

31      On 2 January 2019, Mr Lo reported[25] that the plaintiff’s neck condition had stabilised but that his back continued to cause him difficulties, with a L4/5 broad-based disc protrusion which was causing him back pain and intermittent right leg and buttock pain requiring ongoing therapy. Mr Lo further reported[26] that the plaintiff’s cervical spine was clinically stable but that he would likely have the “permanent restrictions of no sudden bending or twisting of the back and not lifting weights greater than 5kg”. Mr Lo discharged him from further follow-up in relation to the cervical spine.

[25]PCB, p 89.

[26]PCB, p 90.

32      On 28 February 2019, Mr Lo provided a report to the plaintiff’s solicitors[27] in which he noted that the plaintiff’s neck symptoms improved after surgery but that he continued to suffer from back pain which would require ongoing treatment. He concluded that further surgery may be required due to ongoing degeneration and deterioration of his lumbar and cervical spine. Mr Lo reaffirmed the restrictions imposed the previous month (see paragraph 31 above) in relation to the cervical spine but extended these to cover no sudden movement of the back, and no pulling, pushing, or reaching for heavy items.[28] He concluded that the plaintiff had no capacity for his pre-injury work.

[27]PCB, p 91.

[28]PCB, p 93.

33      According to his second affidavit[29] sworn 6 March 2019, the plaintiff worked as an Uber driver 10-12 hours per week from July 2018. The reason for this reduction in hours was to enable him to take breaks from driving after one or two hours so that he could rest his neck and left arm. He was unable to drive for more hours due to the neck condition alone, leaving aside his low back pain and right leg pain.[30] He had been searching online for chemistry-sales related work but found that whenever he mentioned his neck injury and lifting restrictions, prospective employers lost interest in him.

[29]PCB, p 17.

[30]PCB, p 18 [9].

34      According to his third affidavit, sworn 18 July 2019[31], the plaintiff stopped Uber driving because it was putting stress on his neck, and, over time, the neck pain became “too much” for him, and he realised, by mid-March 2019, that driving was not a suitable occupation for him. The neck pain was the main problem with Uber driving, but he also had lower back and shoulder pain at the end of a day of driving. Mr Lo advised him that constant driving would, over time, cause his neck injury to deteriorate. Dr Zannat supported his decision in this regard. He continued to contemplate different types of employment but requires flexibility of hours due to the unpredictability of his neck pain. He stated that because of his neck condition, he did not feel able to work for more than “a few hours a week” in a sedentary position[32].

[31]PCB, p 25.

[32]PCB, p 27.

35      During his evidence, the plaintiff insisted that his neck pain was ongoing[33], and that it hurt all the time when he was Uber driving[34]. He tried hard to increase his hours driving but the extra hours gave him a lot of pain, and he could not sustain the driving even once he reduced his hours. Currently the neck pain is severe three to four times per week.[35] He takes Lyrica and Panadol for that pain and has been taking Voltaren, Lyrica and Panadol Osteo since 2013[36] when he first got treatment for his neck symptoms. He had been taking that medication daily for five years before he first experienced back problems.[37]

[33]T32.12-13.

[34]T29.33.

[35]T33.23.

[36]T62.27-T63.3.

[37]T63.5-8.

36      He said that prior to his back problem, he had been certified as fit to work with restrictions in alternative duties and limited hours. Even when he initially returned to work in 2014 he was never certified fit do full hours. From February or March 2019, he had been limited to 15 hours per week.

37      The plaintiff agreed that he had the qualifications enabling him to retrain for office based duties, and that he had the mental capacity to undertake those alternative duties.[38] He said that he was following the instructions of a search company in order to obtain alternative work within his restrictions up to 15 hours per week. He agreed that he suffered from back pain but said the neck pain was the main problem[39].

[38]T29.8-9.

[39]T50.31.

38      The plaintiff said that his main complaints since his cervical spine injury, as reflected in the medical certificates, were for neck and shoulder pain, and anxiety and depression secondary to that pain.[40]

Medico-legal reports

[40]T67.4-8.

39      On 5 July 2018, Dr Richard Sullivan, Interventional Pain Specialist, reported[41] to the plaintiff’s solicitors that the plaintiff presented with the following cervical spine symptoms:

He reports ongoing left-sided posterior cervical pain that travels into the medial scapular region and also to the anterior and posterior part of his shoulder. He reports his average pain as being 5/10 on numerical rating scale without activity. If he performs activities with his left upper limb of an arduous or repetitive nature, the pain increases to a level that he describes as unbearable.

His pain is exacerbated by any activity involving his left upper limb of a repetitive or strenuous nature.

[41]PCB, p 145.

40      The plaintiff told Dr Sullivan he suffered two injuries: one in January 2013 and the other in September 2013, each affecting the cervical spine. Dr Sullivan noted the cervical spine surgery, and the plaintiff’s ongoing neck, left shoulder and left arm pain which imposed functional restrictions. He felt that the plaintiff would require ongoing physiotherapy and surgical follow up. He considered that the plaintiff would be permanently significantly restricted in relation to pushing, pulling, lifting or overhead activities, or climbing ladders, and would have a limited tolerance for bending, lift, twisting or stooping, or prolonged sitting walking or standing.[42]

[42]PCB, p 148.

41      Dr Sullivan concluded that due to his cervical spine condition, the plaintiff was permanently incapacitated for his pre-injury duties, but could retrain in a sedentary occupation, and, after extensive rehabilitation, could be expected to work in such an occupation “on a part-time basis probably to a maximum of around 20 hours per week”[43].

[43]PCB, p 148.

42      Mr Garry Grossbard, orthopaedic surgeon, reported to the plaintiff’s solicitors on 28 February 2017 and 24 October 2018. In his first report[44], Mr Grossbard noted that the plaintiff’s presentation was complicated by psychological issues. He found no evidence of radiculopathy. He felt that the plaintiff may be able to return to “some form of light work of a sedentary nature”[45]. In his second report[46], Mr Grossbard noted that the plaintiff had undergone surgery, and that the plaintiff told him that the surgery had helped lessen the pain and numbness in his left arm, and given him more mobility with that arm,  but that his “neck and shoulder pain had not changed a great deal”[47]. The neck and shoulder pain were reported as intermittent, and occurred with activity, particularly when driving. The moderate pain worsened as the week progressed and became severe for a short period if he lifted awkwardly[48]. 

[44]PCB, p 172.

[45]PCB, p 175.

[46]PCB, p 176.

[47]PCB, p 176.

[48]PCB, p 177.

43      Mr Grossbard concluded that the plaintiff was permanently incapacitated for heavy physical work or for work requiring him to look down or up for more than short periods of time, or requiring him to lift, pull or push objects with his arms or work at or above shoulder height.[49]

[49]PCB, p 178.

44      Dr Joseph Slesenger, occupational physician, produced a report[50] to the defendant’s insurer dated 23 March 2017. On examination, Dr Slesenger observed an improved range of motion when the plaintiff was distracted as well as non-organic distribution of sensory loss and non-organic weakness in the upper limbs[51]. Dr Slesenger opined that there was no physical basis for the plaintiff’s impairment and believed there was a strong psychogenic element to the plaintiff’s presentation. Dr Slesenger considered that, solely from the perspective of the plaintiff’s physical injury, the plaintiff was able to gradually return to work with restrictions; namely no pushing, pulling, carrying, or lifting over 5kg, no repetitive shoulder work, and limiting driving to 60 minutes.[52] He felt the plaintiff was unrestricted in his ability to sit, stand and walk.

[50]DCB, p 34.

[51]DCB, p 44.

[52]DCB, p 41.

45      On 23 August 2018, Dr Robyn Horsley, occupational physician, reported[53] to the plaintiff’s solicitors a history from the plaintiff, since his surgery, of intermittent neck pain, three to four times per week, lasting three to four hours, varying in intensity from 3 out of 10 to up to 5 out of 10. When more severe, the plaintiff was taking Valium and Panadol Osteo. The neck pain was aggravated by too much shopping, or carrying bags. He avoided quick movements of the cervical spine and repetitive reaching, pushing, pulling or repetitive lifting. His sitting, standing, driving, and walking tolerances are up to 30 minutes. He was doing exercises at home and walking most days.

[53]PCB, p 150.

46      Dr Horsley noted that the plaintiff presented “in a straightforward manner…there was no fear avoidance behaviour exhibited”[54]. She noted restriction of cervical movements, a reduction in forward flexion of the left shoulder, and in the lumbar spine, a mild loss of lumbar lordosis. She considered that he presented with neurological features down the left arm. She opined that employment was “a significant contributory factor” to his cervical spine problems “on a background of pre-existing cervical spondylosis”[55].

[54]PCB, p 155.

[55]PCB, p 159.

47      Dr Horsley imposed a number of work restrictions to his cervical spine: no repetitive over-reaching, pushing or pulling or lifting more than 5-8kg; no working above shoulder height, or in confined spaces; no forceful activities involving the left shoulder girdle; and no static postures involving the cervical spine and left shoulder girdle. He should use good manual handling technique even when lifting light items. She noted that his functional tolerances were 20 to 30 minutes for sitting, driving and static standing; and 30 to 40 minutes for walking and dynamic standing. She considered that the plaintiff could not return to his pre-injury work but had considerable transferrable skills and some capacity for work, with the above restrictions, up to 20 hours per week. She hoped that this capacity would improve.

48      On 21 March 2019, Dr Horsley reported[56] that when she re-assessed the plaintiff she found that he presented with a flat affect, and with “fear avoidance behaviour”[57] in relation to the use of the instrument to measure the amount of force he could exert with the left and right arms. He had altered sensation over that radial aspect of the dorsum of the left forearm. He had some restriction in motion of the left shoulder. Dr Horsley imposed the same work restrictions in respect of the cervical spine as she had in her previous report, but added that he should avoid using vibratory tools.

[56]PCB, p 161.

[57]PCB, p 166.

49      Dr Horsley noted his report of back pain, and the radiological and clinical evidence of an L4/5 disc lesion which is being managed by Mr Lo. She noted when examining his lumbar spine that he favoured the right leg, felt back pain when walking on his toes and heels,  and had pain when rising from a full squat. She felt that there were some radicular features to his lumbar spine presentation.[58] She felt that the lumbar spine condition impacted further on his functional tolerances and general level of disability. She felt that he also needed management of his mental health.

[58]PCB, p 168.

50      On his overall presentation, Dr Horsley felt that the plaintiff had no capacity for work. In relation to his neck condition, taken alone, she concluded that, “in theory…he has capacity to return to a sedentary or administrative role, at least in the initial stages of 15 to 20 hours per week”.[59]

[59]PCB, p 170.

51      On 11 September 2018, Dr Catherine Bones, occupational physician, reported to the defendant’s solicitors[60] that after surgery, the plaintiff’s physical condition had largely stabilised, and that he was working up to 20 hours per week as an Uber driver. She felt that the short and long term prognosis was one of “chronic neck pain”, and that he had persistent psychological issues that required treatment. Dr Bones opined[61] that the plaintiff:

…has experienced an aggravation of a pre-existing asymptomatic degenerative cervical spine condition in the course of his employment, particularly in association with the events described in January 2013 and September 2013…

[60]DCB, p 62.

[61]DCB, p 68.

52      Dr Bones considered that, from a physical perspective, the plaintiff could undertake a number of alternative clerical positions proposed in a Vocational Assessment Report provided to her, but stated that he may require reduced hours as well as a work station assessment and provision of a sit/stand desk.

53      Mr Rodney Simm, orthopaedic surgeon, provided a number of reports to the defendant’s solicitors. Four of his reports were tendered by the defendant. In his first report[62], Mr Simm opined that while the plaintiff did not have capacity for pre-injury employment, he could return to work in a sedentary office-based or desk-based role which did not involve bending or lifting and in which he had flexibility with standing and sitting[63]. His further reports dated 25 October 2018[64] and 27 February 2019[65] addressed issues concerning the role of Uber driving in the plaintiff’s lumbar spine symptoms. In the later of those reports, Mr Simm opined that Uber driving had the potential to exacerbate symptoms from underlying degenerative pathology, but would not “cause, aggravate or accelerate that pathology over the relatively short period of time he worked as an Uber driver”[66].

[62]DCB, p 54.

[63]DCB, p 60.

[64]DCB, p 81.

[65]DCB, p 84.

[66]DCB, p 87.

54      In his report dated 27 June 2019[67], Mr Simm took a history of the plaintiff being unable to continue Uber driving 17-18 hours per week due to neck and back pain, and reduced the driving to 10-12 hours per week. He continued to struggle with neck and back pain and ceased work. Mr Simm noted the following complaints in relation to the cervical spine:

He has occasional days when he is pain-free, but on up to four days of the week he has pain, which rises to 6/10 on a visual pain scale in the region of the neck, left shoulder girdle and left upper limb. He said the pain would go to 8/10 if he attempted to lift weights or undertake other strenuous activities with his upper limbs. He has pain at the base of the neck, with some localisation of pain in the cervicothoracic region. Pain extends into the left scapula, the left shoulder and radiates down into the medial three digits of the left hand. He has numbness down the left arm, into the medial three digits. He has marked restriction of cervical movement and struggles to look from side to side. He has reasonable movement of the left shoulder, but there is pain on elevating his arm fully overhead…

[67]DCB, p 88.

55      Mr Simm noted that the plaintiff told him that the previously reported right-sided shoulder and upper limb symptoms had resolved.

56      The plaintiff told him he had deteriorated physically and mentally since the last consultation. However, he also reported that he did not have cervical pain each day.

57      On examination of the upper limbs, Mr Simm found a “marked discrepancy” between his restrictions on testing and his range of spontaneous movement and noted some non-organic features to the reported reduction of pinprick sensation.[68]

[68]DCB, p 92.

58      In relation to the lumbar spine, Mr Simm noted that the plaintiff told him that “his low back pain is more troublesome than the neck pain”[69]. The pain in the plaintiff’s lumbar spine was aggravated by bending and lifting. He was able to stand, sit, walk and drive for up to 25 or 30 minutes. Mr Simm accepted that Uber driving caused the plaintiff some low back pain but felt that, given the absence of objective clinical signs, he could work full-time as an Uber driver, while taking medication for any pain. Neurological examination of the lumbar spine was normal.

[69]DCB, p 91.

59      He opined that the plaintiff has a psychologically based chronic pain syndrome.[70]

[70]DCB, p 94.

60      Mr Simm concluded that while the lifting episodes in September and November 2013 may have led to symptoms “from the underlying degenerative cervical spine pathology…these symptoms were not severe enough to lead to cessation of employment”, as the plaintiff only stopped working after the “more severe exacerbation of symptoms occurring after washing his car”[71].

[71]DCB, p 93.

61      Nevertheless, Mr Simm accepted that the plaintiff could not return to manual work involving repeated and heavy lifting with the upper limbs. On the other hand, he felt that given the lack of objective clinical signs of lumbar spine dysfunction, the plaintiff could work full-time as an Uber driver or in other proposed light work or sedentary positions which were proposed in the AMS vocational report of 23 January 2017. He also noted that although “there is little evidence of an ongoing underlying physical condition” preventing a return to light work in the occupations listed in the AMS vocational report, given the plaintiff’s “quite marked fear avoidance behaviour”, it was unlikely he would agree to return to any of the listed occupations.

Findings and reasons

Neck injury – application under sub-paragraph (a)

62      I found the plaintiff to be a very straightforward witness. His credit was not attacked. He showed himself, in spite of his neck injury, to be very motivated to find work for limited hours within his physical restrictions, and continues to search for such positions with the assistance of a service provider. I accept his evidence, which was not contradicted, concerning the lifting incidents in January and September 2013.

63      The defendant’s concession in relation to the pain and suffering limb of the application under sub-paragraph (a) obviates the need to dwell further at length on the medical evidence concerning injury and impairment. I am satisfied on the basis of the evidence of Mr Lo[72], Dr Horsley[73], and Dr Bones[74] that as a result of the lifting incidents in January and September 2013, the plaintiff suffered an aggravation of pre-existing but asymptomatic cervical disc degeneration. By May 2015, that injury was considered to warrant surgical intervention, but that surgery was delayed while the plaintiff undertook pain management and counselling. By April 2017, the ongoing pain and restrictions flowing from that injury occasioned the need for surgery. That surgery was technically successful, but the plaintiff continued to suffer pain and restrictions. Notwithstanding the comments of Mr Simm[75], Mr Grossbard[76], and Dr Slesenger[77] as to the presence of some non-organic signs on examination, the weight of the expert treating and medico-legal opinion of Dr Zannat[78], Mr Lo[79], Dr Sullivan[80], Dr Horsley[81], Dr Bones[82] is to the effect, and I therefore find, that there remains a substantial organic basis for the plaintiff’s ongoing cervical spine symptoms and restrictions. In these circumstances, there is no need to disentangle the sequelae flowing from the plaintiff’s back problems, which are not the subject of the application.

[72]PCB, p 78.

[73]PCB, p 169.

[74]DCB, p 68.

[75]See for example DCB, pp 94 and 96. 

[76]See his comment regarding resolution of the shoulder pathology at PCB, p 178. See also his comments that movement was greater when distracted at PCB, pp 174 and 177.

[77]See for example DCB, p 41.

[78]See for example PCB p 49.

[79]See for example PCB, p 78.

[80]See for example PCB, p 147

[81]See for example PCB, p 169. 

[82]DCB, p 67.

64      As a result of his neck and shoulder pain, the plaintiff was certified unfit for pre-injury duties consistently from 2015[83]. Perusal of all of the Certificates of Capacity which were tendered or referred to in his general practitioner’s reports[84], reveals that they were all expressly based on the cervical spine injury the subject of his WorkCover claim. Up until the last Certificate of Capacity for the period 10 May to 9 August 2019[85], the plaintiff has, at best, been certified to work a maximum of 15 hours per week with restrictions in alternative duties.  

[83]T64.29.

[84]PCB, pp 49 and 56.

[85]Which indicates that he can work no more than 8 hours per week. See Exhibit A.

65      There is consensus across all treating and examining experts that the plaintiff is permanently incapacitated for his pre-injury duties. The reports of Dr Bones and Mr Grossbard are of limited assistance as they are dated September and October 2018, when the plaintiff was still driving for Uber but before he became unable to continue doing so given the increase in neck and arm pain that this driving caused him. Similarly, the most recent report of Mr Simm[86] is of limited assistance because it ignores the advice of Mr Lo and Dr Zannat to the plaintiff, in 2019, that he stop driving for Uber because of the neck and arm pain it caused him.  

[86]Dated 27 June 2019 at DCB, p 88.

66      In relation to residual work capacity, the only expert to address the plaintiff’s residual work capacity associated with the neck injury, taken alone, is Dr Horsley. She opined that the plaintiff has a theoretical capacity to return to a sedentary or administrative role, “at least in the initial stages, of 15 to 20 hours per week”[87].

[87]PCB, p 170.

67      In the light of the above, I am satisfied, that due to the permanent impairment of the function of his cervical spine, the plaintiff is permanently incapable of working more than 20 hours per week in alternative duties, with the restrictions imposed by Dr Zannat. Given the figures agreed by the parties, it follows that the plaintiff has established a permanent 40% loss of earning capacity and that, for this reason, the pecuniary loss consequences of the permanent impairment of the cervical spine are more than considerable when compared with other cases in the range of permanent impairments of the cervical spine.

Psychiatric injury – application under sub-paragraph (c)

68      For the sake of completeness, in the event that I have erred in my findings concerning the plaintiff’s application under sub-paragraph (a), I turn to the application in respect of psychiatric injury.

69      In his affidavits and viva voce evidence, the plaintiff says little about the psychological sequelae of his neck injury. In his first affidavit, the plaintiff stated[88] that as a result of his neck and shoulder pain and the impact of these on his ability to work, socialise, drive, play sport, do household tasks, walk, run, read, lift, play with his children, and be intimate with his wife, he struggled with concentration problems and feelings of depression and frustration. He was seeing a psychologist, Milan Pekic, every two or three weeks. He was taking anti-depressants and diazepam.

[88]PCB, p 15 [22].

70      In his second affidavit, he stated that his psychological state had “deteriorated a lot”[89] and he had been seeing a psychiatrist, Dr Aggarwal, since late 2017, every 6 to 8 weeks. He was taking Pristiq and Valium. He was moody and withdrawn. His confidence had plummeted as a result of his neck symptoms and his inability to work, and his memory and concentration had worsened. His marriage was suffering and he was sleeping separately from his wife.

[89]PCB, p 19.

71      In his third affidavit, he stated that he was taking one 50mg tablet of Pristiq in the morning, and 5mg of Valium two or three nights per week to sleep. He has had to reduce the frequency of psychological counselling because WorkCover terminated his entitlement. He continues to see Dr Aggarwal every 6 weeks.

72      In cross-examination the plaintiff agreed that he has the mental capacity to perform sedentary work.[90]

[90]T29.7.

73      Mr Pekic reported on 26 July 2016[91] that he was treating the plaintiff for anxiety and depression and that the plaintiff required further sessions to help his psychological symptoms.

[91]PCB, p 97.

74      Dr Neeraj Aggarwal, the plaintiff’s treating psychiatrist, reported on 24 April 2019[92] that he has been seeing the plaintiff since 30 August 2017, that he suffers from Major Depressive Disorder as a result of his physical injury and consequential pain disorder and his difficulties managing the work demands placed on him. He considered that the chronic symptoms of depression would continue and that his ongoing pain was a factor preventing recovery from depression. As to his work capacity, on 7 May 2019 Dr Aggarwal opined that “he does not have current capacity for pre-injury work and also other general work based on his psychiatric condition and also due to the impact of his physical injury and pain condition on his depression”[93].

[92]PCB, p 94.

[93]PCB, p 96.

75      Dr Ash Takyar, psychiatrist, examined the plaintiff on two occasions, once for the defendant’s insurer in 2016[94] and once for its solicitors in 2018[95]. In both of his reports, Dr Takyar diagnoses the plaintiff as having an Adjustment Disorder with mixed anxiety and depressed mood, secondary to the plaintiff’s physical injury. In his second report he describes this condition as ‘chronic’.

[94]DCB, p 17.

[95]DCB, p 71.

76      In his 2018 report[96], Dr Takyar stated that, from a psychiatric perspective, the plaintiff had capacity to work 7-10 hours per week but expected he would struggle with complex tasks due to difficulties with memory and concentration.

[96]DCB, p 78.

77      Dr Michael Epstein, psychiatrist, provided two medico-legal reports to the plaintiff’s solicitors. In his first report, dated 10 February 2017[97], he diagnosed a chronic Adjustment Disorder with depressed mood as a consequence of chronic pain, discomfort and disability flowing from his neck injury “and his perception that he has been discarded by his employer and is no longer of use to his family”[98]. In his second report, dated 31 July 2018[99], Dr Epstein made the same diagnosis but felt that the plaintiff’s mental state had improved. He concluded:

He would like to return to work consistent with his physical limitation but he would not be able to return with his pre-injury employer because of loss of confidence and trust in that employer. His mental state would improve further if he was able to return to work.

His mental state now has less effect on him returning to suitable employment elsewhere although he still has some loss of confidence, irritability and fatigue.

[97]PCB, p 131.

[98]PCB, p 132.

[99]PCB, p 134.

78      The plaintiff’s concession that he is mentally fit to work in alternative duties was made in the context of his statement that any such work would have to be within his physical restrictions. I consider that substantial weight must be given to the opinion of an ongoing treating psychiatrist in this context. Dr Aggarwal, who continues to see the plaintiff every 6 weeks and prescribes the anti-depressant medication that he takes, considered that the plaintiff has no capacity for suitable employment as a result of the combined effect of his physical and psychiatric conditions. His opinion is similar to that of Dr Takyar, but Dr Takyar’s opinion isolates the impact of the psychiatric injury alone, and concludes that the plaintiff’s work capacity, from a psychiatric capacity is for a maximum of 7-10 hours. Dr Takyar expressed some concern about the plaintiff’s memory and concentration for those limited hours. Dr Epstein acknowledged the likely continued impact of his mental state on his capacity to engage in any suitable employment.

79      In the light of all the evidence, and the defendant’s concession as to pain and suffering flowing from the neck injury, I am satisfied that the plaintiff has established that in terms of work capacity, the consequences of the psychological injury he suffers are more than serious, to the point of being severe.

80      For these reasons, leave is granted under sub-paragraph (c) of the definition of serious injury for loss of earning capacity.

Conclusion

81      Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the cervical spine and psychological injury suffered while working for NCH. I reserve the question of costs.