Jagmohan v Victorian WorkCover Authority
[2022] VCC 1514
•14 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00338
| JAGMOHAN JAGMOHAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 15 August 2022 | |
DATE OF JUDGMENT: | 14 September 2022 | |
CASE MAY BE CITED AS: | Jagmohan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1514 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) VR 1
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Zhu | Zaparas Lawyers |
| For the Defendant | Mr P Haddad | Lander & Rogers |
HER HONOUR:
1This is a serious injury application, with respect to pain and suffering consequences only.
2The plaintiff, Mr Jagmohan, injured his back on 20 November 2017 while moving an air-conditioning compressor in the course of his employment. This much is not in dispute. However, the defendant:
(a) denies that Mr Jagmohan’s back injury is permanent;
(b) disputes the nature and extent of the consequences of Mr Jagmohan’s back injury; and
(c) denies that any symptoms currently experienced by Mr Jagmohan have an organic basis.
3The defendant says that, as a result, Mr Jagmohan has not suffered a permanent serious impairment of his spine and should not be given leave to sue for damages for pain and suffering.
4The reliability of Mr Jagmohan’s evidence, and his reported and demonstrated capacities when assessed by the medical experts, is critical to the resolution of the issues in dispute.
Mr Jagmohan’s evidence
5From October 2015, Mr Jagmohan worked full time for AWM Electrical as a storeman. His duties included maintaining warehouse stock and making deliveries. On 20 November 2017, he was delivering an air-conditioner compressor to a customer. As he was lifting the compressor off the ute at the delivery site, the backing strap got stuck in the tray of his ute. Mr Jagmohan struggled to maintain his balance and suddenly took the full weight of the compressor. He felt an immediate sharp pain in his back. Despite this pain persisting and extending into his right leg, Mr Jagmohan finished his workday and continued with his normal duties at the defendant for the next week.
6On 27 November 2017, Mr Jagmohan consulted his general practitioner (“GP”) about his back pain. His GP gave him a medical certificate and referred him to physiotherapy. He returned to work.
7On 5 December 2017, Mr Jagmohan said that he was lifting some 10-kilogram boxes at work when his pain escalated. He stopped work and consulted his GP. He was then referred for an MRI scan of his lumbar spine, which showed a moderate disc bulge with an annular fissure at L5-S1, with mild spinal canal narrowing; and moderate left lateral recess stenosis, with the disc contacting the descending left S1 nerve root.
8In his first affidavit sworn 1 October 2021, Mr Jagmohan says that since that time, he has had constant pain in his back and left leg. He also says that, if he sits for too long, he gets pins and needles or numbness in his feet.
9According to Mr Jagmohan’s first affidavit, this pain has impacted practically every facet of his life. Mr Jagmohan says that:
(a) he struggles to drive for long distances and, at the end of a drive his feet feel like they are going numb;
(b) he struggles with public transport because it involves walking to get to a stop and standing to wait for the vehicle to arrive;
(c) he struggles to lift much, and this impacts his ability to do chores and to lift his children from, or onto, the ground, as it causes him sharp pains in his back;
(d) his back pain also impacts on his ability to play with his children; and he feels sad he cannot be the father he wishes to be;
(e) his sleep has been badly affected and his sex life impacted;
(f) he struggles with vigorous or repetitive housework, and his wife has to do all the vacuuming, cleaning and washing, and his brother has to do most of the gardening;
(g) before the accident, he would attend cross-fit sessions four to five times a week. Although he had stopped going after the birth of his first child he had intended to return to it. Now, this would be too strenuous for him;
(h) he used to be a really social person who would host large parties at his house, but he can no longer do so and has lost a lot of friends;
(i) he used to go to the temple at least once a day, sometimes twice a day. Now he tries to go once a week or once a month;
(j) he needs help putting on his shoes and socks, and tries to wear shoes without laces that are easier to slide in and out of;
(k) he relies upon his wife to cut his toenails and massage his back and feet;
(l) he used to love cooking and would cook three to four times a week, as well as for social gatherings;
(m) he used to regularly go to the beach in summer, but no longer does;
(n) he would regularly go to Mr Buller for a holiday, or for day trips with family friends, but no longer does;
(o) he performs some work in a voluntary capacity for his cousin at a pizza shop, but is “not sure what sort of paid work [he] could do now”.[1]
[1] First affidavit paragraph [54] at Plaintiff’s Court Book Version 2 (“PACB”) 12
10In his second affidavit sworn 30 June 2022, Mr Jagmohan said that his symptoms were largely unchanged from his first affidavit. Despite this, he also gives evidence that he is now working about three hours a day, three to four days per week, at his cousin’s pizza shop (“the pizza shop”).[2] He says that he helps to make pizzas, take orders over the phone and makes short deliveries. He also says that he sometimes does a bit of mopping, but someone else fills up the bucket and empties it for him. He says that he tried to work one full day at the pizza shop, but suffered more intense pain for the following three to four days.
[2] Technically it was his wife’s cousin, rather than his cousin.
11Mr Jagmohan says that he currently takes Tramadol once a day, Lyrica once a night, six tablets of Panadol a day and Circadin about two to three days per week.
12In oral evidence, Mr Jagmohan seemed to admit that his pain had improved, saying that “the physio has helped [him] with exercises”[3] and “maybe it improved a little bit”[4] and that, although he did not think he had capacity for full-time work, he could “try”.[5] However, he also confirmed that his affidavits were correct.
[3] Transcript (“T”) T31, Lines (“L”) 19-21
[4] T32, L3-4
[5] T33, L27
13Mr Jagmohan was cross-examined at length concerning the nature of his ties to the pizza shop. He said that his cousin owned the pizza shop, and his wife and brother worked there. He denied having any interest in the pizza shop. He said that he first worked there as a volunteer, but was now receiving a wage. At first, he said he did not know when his cousin started the business, but on closer questioning, said his cousin had the business from 2019. He specifically denied ever owning the business, having shares in it, or being a director of “that company”.[6] However, when questioned further, he admitted that he had been a director and shareholder, but said it was to assist his cousin in obtaining finance and that it predated the business being transferred to his cousin. He also said this finance had never gone through and his cousin obtained money from India for the purchase of the business. He said he thought the business was transferred to his cousin in around March. Finally, he admitted to being the director and shareholder of the company between 30 September 2020 and 29 October 2020 (i.e. after the time he had previously said the business had been transferred to his cousin).
[6] T12, L7
14It must be borne in mind that Mr Jagmohan’s first language was not English. While he spoke conversational English well, he struggled to clearly express more complicated matters in English. However, he was given the opportunity to use an interpreter whenever he wished, and several times in the course of his cross-examination I also suggested he do so. Overall, his answers (whether given directly in English or interpreted) were evasive, shifting and provided unsatisfactory explanations for his involvement as a director and shareholder of the company. A lack of understanding or sophistication are insufficient explanations for the answers he provided. He did not present as an unsophisticated man. I find that he sought to downplay his involvement in the management of the company and his knowledge of its affairs.
15However, Mr Jagmohan is seeking leave to bring proceedings with respect to pain and suffering damages only, not economic loss damages. Having some involvement in the management of a company is not inconsistent with Mr Jagmohan’s descriptions of his symptoms of back pain, given that it is presumably a sedentary role. The relevance of Mr Jagmohan’s involvement in the pizza shop is therefore limited to his general credibility as a witness. Although this aspect of Mr Jagmohan’s evidence did cause me to have some concerns about his general credibility, the importance of this evidence should not be overstated.
16Of more direct relevance were my observations of Mr Jagmohan in the witness box. On a number of occasions, particularly in the early stages of giving evidence, he audibly groaned and grimaced when he moved and then looked towards the Bench. On the other hand, when distracted by challenging questioning, he moved freely, leaning forwards and backwards, and turning his torso without apparent restriction. On several occasions, he arched his back and tilted his head back to look up to the roof and sighed. When agitated by a line of questioning, he suddenly leaned right forward in his seat until his face was right next to the microphone, grasping it in his hands. He twisted both his torso and neck to face the interpreter who was sitting to his left; and to face the Bench, to his right. In all of these movements, Mr Jagmohan showed no signs of caution or guarding.
17Mr Jagmohan also maintained a seated position for around an hour and a half. Towards the end of cross-examination, he did move his legs, wince and shift in his seat, but only after being directly questioned about whether his movements improved on distraction.
18I am conscious that I am not a medical expert, and therefore not qualified to diagnose back injury (or lack thereof) by observation. However, as I explain below, my observations coincided with the observations of a number of medical experts whose reports were tendered in evidence.
Medical evidence
19Dr Joseph Slesenger is a medico-legal specialist occupational physician retained by the defendant. He assessed Mr Jagmohan twice and produced four reports which were tendered in evidence. His first report included his observations from an assessment performed on 9 April 2019. Dr Slesenger recorded that Mr Jagmohan had “an almost absent range of lumbosacral spinal movements”[7] and advised that he could drive for no more than three minutes, walk for 50 metres, stand for ten to fifteen minutes and sit for ten to fifteen minutes. He observed sensory loss, which was non-dermatomal; weakness, which was non-myotomal; positive response to stimulation testing; and no confirmed evidence of radiculopathy. He concluded that “the incident related impairment is now a minor contributing factor [Mr Jagmohan’s] physical disability”.[8]
[7] Defendant’s Amended Court Book (“DACB”) 9
[8] DACB 9
20In his third report, which included observations from an assessment conducted on 29 June 2022, Dr Slesenger noted that Mr Jagmohan advised that he could drive for twenty to twenty-five minutes, walk for five to ten minutes, sit for twenty to twenty-five minutes (an improvement on the first assessment) and stand for ten to twenty minutes. He recorded a range of motion in the lumbosacral spine of 0 degrees in flexion, 0 degrees in extension, 10 degrees in right rotation, 10 degrees in left rotation, 10 degrees and right lateral tilting and 10 degrees in left lateral tilting. He noted that Mr Jagmohan’s gait and lumbosacral spine movements improved upon distraction.[9] He concluded that Mr Jagmohan had suffered a soft-tissue injury and aggravation of degenerative disease but that “I am satisfied that this in most part has resolved”,[10] noting that there were:
“… a number of inconsistencies on serial evaluation, including:
· Improved range of lumbosacral spine movements upon distraction.
· Non-myotomal weakness.
· Non-dermatomal sensory loss.
· Absence of wasting despite the weakness and restricted range of movements identified.
· Inconsistent seated straight leg raise test.
· Variable gait which improved upon distraction, which in turn was inconsistent with even wear on the base of his shoes.
· Positive response to stimulation testing.”[11]
[9] DACB 23-24
[10] DACB 27
[11] DACB 27
21Dr Slesenger concluded:
“I am of the opinion that he retains capacity for work with restrictions, namely:
· No push, pull, carry or lift over 5 kg on a repetitive basis and 10 kg on an occasional basis.
· No exposure to whole body vibration.
· No prolonged static postures.”[12]
[12] DACB 28
22Mr Ian Dickinson is a medico-legal orthopaedic surgeon retained by the defendant. He assessed Mr Jagmohan, in person, on 30 June 2022. He noted that on physical examination:
“He was able to flex his lumbar spine such that the fingertips reached to the distal thighs. There was no extension. Lateral flexion was mildly restricted. There was no movement on attempted rotation of the pelvis. All of these movements produced grimacing and groaning.”[13]
[13] DACB 43
23In his opinion:
“…
Mr Jagmohan’s present condition is that of abnormal pain behaviour with illness and injury focussing. He has no physical condition in relation to his back.
…
My assessment findings are detailed in the body of the report. Mr Jagmohan has numerous inconsistent clinical findings. These include gross restriction of his lumbar spine movement, pain on attempted rotation of the pelvis without spinal movement, and with grimacing and groaning with all attempts at movement.
There were inconsistencies in straight leg raising assessment. There was giving way on power testing.”[14]
[14] DACB 45-46
24He concluded:
“I would not expect Mr Jagmohan to have any restrictions. Because he has degenerative change in the lumbar spine, he might have some intermittent back ache of minor degree. These would not cause significant interferences in Mr Jahmohan’s capacity.” [15]
[15] DACB 46
25Mr Jagmohan was assessed by a Medical Panel consisting of two general practitioners, a neurosurgeon and a psychiatrist. They produced an opinion dated 7 March 2021. In their Reasons for Opinion, the Panel recorded:
“The Panel concentrated on Mr Jagmohan’s back and lower limbs having noted that he entered the room with a marked limp and use of a crutch held under right axilla. Throughout most of the 45 minute interview he maintained a normal seated posture, making a position change to standing, rising from the chair without overt difficulty. … . Mr Jagmohan undressed himself for examination including removal of shoes and he was able to manoeuvre around office furniture and examination couch independently. He changed position from supine to sitting on the couch without difficulty.
…
Active spinal movement was severely limited in all directions with demonstration of active range being: minimal thoracic rotation, lumbar flexion to maximum of 10°, no extension, lateral flexion maximally to 10° to each side.”[16]
[16] DACB 150
…
Sensory loss was global, affecting the entire right leg in a non-anatomical distribution. Left lateral thigh - there was reduced pin prick appreciation in a large zone not consistent with the distribution of the lateral cutaneous nerve thigh and in the Panel’s view also not organically based.
Tendon reflexes were all present symmetrical and normal.
…
Power testing of muscle groups on right side from thigh to toes was marked by collapsing weakness; however the panel elicited no neurologically based muscle weakness affecting function across the hip, knee, ankle or hallux or digits.
The Panel considered that there were no clinical features of lumbosacral nerve root deficit/radiculopathy.
The Panel considered that the degree of lumbar spine restriction demonstrated during clinical examination on 12 January 2021 was not in keeping with observed or reported level of daily function (independence, driving) or with the radiological findings.”[17]
[17] DACB 150-151
26The Medical Panel also considered the diagnostic imaging reports, explaining that:
“In the Panel’s opinion, the findings reflected degenerative disc changes at a single level L5/S1, which became less obvious over time: there was less effect from the disc degeneration in 2020 and in 2018 compared with the changes reported in 2017. This is consistent with the expected tendency for extruded disc material to spontaneously organise and resolve over time.”[18]
[18] DACB 151
27The Panel concluded:
“… that Mr Jagmohan had a work-related lumbosacral soft tissue injury more than 3 years ago. The Panel noted that his radiologically evident, mild, degenerative lumbosacral disc changes, which are confined to a single level, do not result in radiological evidence of nerve root compression or clinical evidence of neurological deficit. In the Panel’s view the expected course following a soft tissue lumbar injury of this nature, is usually one of gradual and spontaneous progression towards physical and functional recovery with or without specific intervention. The Panel noted that consistent with the expected resolution and organisation of degenerate disc material over time, radiologically evident disc changes and any effects of them, also reduce over time. As such, scans dated 2017 do not depict radiological evidence of any exit compromise on L5 or S1 nerve roots.
The Panel considered that the low-level disc changes at this single level do not satisfactorily explain his current clinical presentation, which is one of a high degree of reported symptomatology and lack of functional recovery (akin to invalid status). This reported level of restriction/incapacity is in the Panel’s view not matched by objective evidence of physical abnormality (motion restriction) or signs of ongoing injury-related soft tissue (disc) or bony spinal pathology. Mr Jagmohan therefore in the Panel’s view, appears to have greater actual range of spinal movement, and physical and functional capacity than stated. His better than reported level of physical function is also supported by surveillance footage of 2019.
The Panel acknowledges that in addition to the effects from physical injury there may be complex non-organic factors contributing to failure to recover to pre-injury level of functional and vocational capacity following relatively non-serious injury. In this way, the Panel considers that Mr Jagmohan’s current status is contributed to significantly by his persistent pain experience and non-organic factors including his psychosocial situation and unhelpful learned behaviours.”[19]
[19] DACB 152-153
28Mr Jagmohan was assessed by a second Medical Panel, who provided an opinion dated 4 August 2021. The Panel included a psychiatrist, a neurologist and a rheumatologist. The Panel concluded:
“… that there are complaints and symptoms of lumbar spine pain, but [Mr Jagmohan] has no significant clinical findings, no muscle guarding, no demonstrable neurological impairment, and no clinical evidence of radiculopathy or myelopathy (as specified in the Guides). The Panel therefore concluded that the appropriate impairment category for the lumbosacral spine is DRE Category I, resulting in a 0% whole person impairment.
…
The Panel noted that imaging of the lumbosacral spine performed following the incident demonstrated minimal evidence of lumbar degenerative changes more marked on the left side (opposite to his clinical symptoms) and would be common in the asymptomatic population. The Panel accepted [Mr Jagmohan’s] account that prior to the incident on 20 November 2017, he had no back symptoms or functional restrictions and was not receiving any ongoing treatment for any pre-existing condition of the spine. The Panel considered that whilst there is minimal evidence of pre-existing degenerative change this led to no ongoing functional restriction or impairment of the back, and as such there is no spine impairment to be disregarded from the assessment in accordance with Section 53(2)(b) of the Act.”[20]
[20] DACB 170
29I have read and considered all of the medical reports tendered in evidence. I find the opinions of the medical experts described above most compelling, particularly given their congruence with my own observations of Mr Jagmohan’s range of motion and inconsistent pain behaviours. I accept their opinions. In particular, I accept the views of Dr Slesenger and Mr Dickinson, that any organic injury has largely, if not entirely, resolved.
30The opinions of Mr Jagmohan’s treating practitioners and the other medico-legal expert reports tendered in evidence were based upon an acceptance of Mr Jagmohan’s demonstrated range of motion, muscle power and sensation as genuine; as well as his self-reports of pain and loss of function. It is clear from the reports described above, and my own observations, that Mr Jagmohan’s claimed range of motion and capacity for sitting (in particular) were greater than that demonstrated or reported by him on assessment.
31Further, given the variances between Mr Jagmohan’s claimed and observed capacities and my general observations as to Mr Jagmohan’s credibility outlined above, I do not accept as reliable any of his self-reported symptoms or capacities, unless corroborated by objective evidence.
32There was objective evidence of injury in the first MRI scan of 17 December 2017, including nerve impingement. However, the subsequent MRI scans demonstrated a progressive resolution of this injury, to the point where the MRI scan performed on 4 January 2020 records that:
“… The L5 nerve roots exit freely without evidence of compression and neither S1 nerve root is displaced or compromised within the articular or subarticular recesses”.[21]
[21] PACB 35
33As noted by the second Medical Panel, these degenerative changes “would be common in the asymptomatic population”.[22]
[22] DACB 170
34Counsel for Mr Jagmohan conceded, during closing submissions, that the MRI scans were the only form of evidence not “solely based on [Mr Jagmohan’s] reporting”.[23]
[23] T75, L8-9
35In the circumstances, the opinions of Mr Jagmohan’s treating practitioners and the other medico-legal expert reports, are no more reliable than Mr Jagmohan’s own evidence. I do not accept, on the basis of those opinions, that Mr Jagmohan suffers ongoing organic injury.
36The view that Mr Jagmohan’s initial organic injury has largely resolved also finds support:
(a) in the report of treating neurosurgeon, Mr Yagnesh Vellore dated 13 December 2017, who records that “there is some scope for spontaneous recovery”;[24]
(b) in the opinion of Mr Roy Carey, a consultant orthopaedic spine surgeon who conducted a desktop impairment assessment of Mr Jagmohan. He concluded Mr Jagmohan’s presentation was no longer consistent with the described workplace injury and it seemed that a chronic pain syndrome had evolved;[25] and
(c) in the opinion of Dr Clayton Thomas, a consultant in rehabilitation and pain medicine who assessed Mr Jagmohan on 9 October 2019. In his initial report, Dr Thomas diagnosed a somatic sensory disorder and stated that he was not able to determine “the nature of any underlying residual organic problem”.[26] He did say that there was nothing at the time which made him feel that Mr Jagmohan was not genuine, however I have made a contrary finding.[27]
[24] PACB 36
[25] DACB 139
[26] DACB 118
[27]In a subsequent report, Dr Thomas said that surveillance evidence would suggest that Mr Jagmohan’s level of disability is far greater than what was portrayed to him. I have not had regard to this particular opinion given the surveillance evidence was not tendered.
37I note that Mr Jagmohan has had significant treatment in the form of cortisone injections and prescription painkilling medication (including Lyrica, which is an opioid). However, Mr Jagmohan’s evidence was that the cortisone injections did not effectively reduce his pain and the evidence of his use of painkilling medication is based on self-report. I also note that treating neurosurgeon, Mr Gautam Khurana, was of the view that Mr Jagmohan had a genuine structural injury and recommended surgery.[28] However, Mr Jagmohan elected not to have that surgery, despite his claims to suffer constant and highly restrictive pain.
[28] PACB 45
38I also note that WorkCover payments were initially made by the defendant and that Mr Jagmohan relied upon this as an admission. However, the initial making of WorkCover payments is not inconsistent with the case put by the defendant, which was that of an initial organic injury since resolved.
39I also note that no corroborative evidence was tendered from Mr Jagmohan’s wife, or his cousin, as to his symptoms and capacities. Although this is not a particularly strong factor given the “gateway” nature of the serious injury provisions, an adverse inference can be drawn from the failure to call this evidence.
40Having considered all of the above matters, I do not accept Mr Jagmohan’s evidence that he suffers constant pain in his back and right leg, with pins and needles and numbness in his feet. I do not accept that his range of motion is as restricted as portrayed by him in medical assessments. I do not accept that his capacity to sit, stand, walk and drive is severely restricted. I note that this evidence is inconsistent with the fact that he is able to work three-hour shifts in a pizza restaurant, including as a delivery driver. I do not accept that, as a result of pain, he suffers the restrictions to his daily activities that he details in his affidavits.
41I accept that Mr Jagmohan suffered an organic injury to his lumbar spine on 20 November 2017, but I find that this injury has largely resolved. I am not satisfied that this injury causes him more than “some intermittent back ache of minor degree”,[29] and possibly makes it advisable to avoid occupations involving repetitive pushing, pulling, carrying or lifting of more than 5 kilograms, and occasional lifting of more than 10 kilograms.[30] However, I accept the opinion of Dr Slesenger and Mr Dickinson, that these restrictions are not such as to prevent Mr Jagmohan from obtaining full-time employment. There is no evidence that these restrictions would close off an area of work which Mr Jagmohan has enjoyed.[31]
[29] DACB 46
[30] See restriction imposed by Dr Slesenger at DACB 34
[31] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [15]
42I have taken into account Mr Jagmohan’s age. However, in view of my findings above, his young age alone does not elevate the consequences of his injury into the “very considerable” range. Further, even on his own account, Mr Jagmohan has demonstrably improved over the last few years, from being unable to drive more than three minutes and unable to sit for no more than ten to fifteen minutes; to being able to work three-hour shifts in a pizza shop, including as a delivery driver, and sit through a lengthy cross-examination. It would be reasonable to assume that this trajectory of improvement will continue.
43Having considered all of the above, I am not satisfied that Mr Jagmohan suffers from an impairment of his spine which is “very considerable”, in the sense that it is more than merely “marked” or “significant”. I am not satisfied that Mr Jagmohan has suffered a permanent impairment of his spine. I am not satisfied that any symptoms that Mr Jagmohan does currently suffer are organic in origin.
44The proceeding is dismissed.
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Certificate
I certify that these 14 pages are a true copy of the reasons for the decision of her Honour Judge Tran, delivered on 14 September 2022.
Dated: 14 September 2022
Alana Zepackic
Associate to her Honour Judge Tran
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