Mayen v Victorian WorkCover Authority

[2018] VCC 207

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-17-03750

THON AOJAK MAYEN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February, 6,7 March 2018
DATE OF JUDGMENT:	7 March 2018
CASE MAY BE CITED AS:	Mayen v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2018] VCC 207

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-low back
Legislation Cited: Accident Compensation Act 1985
Cases Cited:            
Judgment:                Leave granted for pain and suffering and pecuniary loss

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr P Johnstone	Slater & Gordon
For the Defendant	Mr C Miles	Wisewould Mahony

HIS HONOUR:

1       The plaintiff is age 55 years old and he was born in South Sudan. He came to this country in 2006 after spending six years in a refugee camp in Egypt after fleeing his homeland. He was only educated to year seven at school and that was in his native language. He worked in a factory in Sudan and after coming to Australia commenced working in a halal meatworks in 2008. His best year was 2008/2009 when he earned $39,528.

2       It was unskilled work of the heaviest nature. On the sheep line he handled somewhere between 4000 and 4010 carcasses over an eight hour shift. He was able to work in this environment because he could communicate in Arabic. He has no English speaking skills nor any with respect to reading and writing. Both his affidavits have been sworn with the assistance of an interpreter into his Dinka language. He needed a professional interpreter in court.

3       Leave is sought for both pain and suffering and pecuniary loss damages based on impairment of his spine. Regarding the issues, counsel for the defendant initially indicated that it was not an admitted compensable injury to the spine and if it was, pain and suffering consequences did not meet the test of “serious injury”. Further it was submitted that there was a residual capacity for suitable employment that meant the plaintiff failed to establish the requisite 40% or more permanent loss of earning capacity.

4 Counsel for the plaintiff stated the claim was brought as a total incapacity case given that the plaintiff on any view was unsuitable to go back to unrestricted heavy labour, and in reality, he had no capacity given his limitations for any alternative suitable employment. Plaintiff’s counsel adopted what the vocational assessor had called “poor foundation skills for employment (education, literacy, numeracy, digital literacy, learning skills and his very limited employability skills” as realistically amounting to no capacity for suitable employment as defined in s 5 of the Accident Compensation Act.[1]

[1]Plaintiff’s Court Book (PCB) 90,94

5       onsidering  all the evidence I am satisfied that the spinal injury relied on was suffered in the course of employment. I accept the evidence of Mr Mayen on this and it is consistent with the weight of medical opinions across both court books save for Mr Clive Jones which I will deal with later. The issue was also not the subject of any cross-examination of the plaintiff.

6       The primary issue then is really the extent of any permanent loss of earning capacity and assessing pain and suffering consequences should he fail to prove a 40% or more permanent loss.

7       His evidence was he suffered injury in the course of his employment and in particular,  after a fall at work on 13 August 2009 and then lifting a sheep carcass on 29 October 2010 and lifting another one on 11 November 2010. He had been told at work by his supervisor, Ali, to just get on with his work as he would lose his job if he reported an injury under the WorkCover system.[2] This proved to be accurate advice because while he  worked on in constant back pain helped by medication and conservative treatment, when he suffered a lacerating injury to his left thumb on 12 December 2011 and it put him off work he was promptly told there was no job for him “as I was now injured.”[3]

[2]PCB 7-8

[3]PCB 8,Transcript(T) 95-96

8       The plaintiff persistently said in his oral evidence that Ali told him that if a back injury was reported he would be fired. The plaintiff said that what Ali had told him was true because when he injured his thumb he was fired.[4] The circumstances when he injured his thumb meant  that he had to leave work and went to Dr Abdi. He referred him onto the Sunshine Hospital but no doctor was immediately available. Hospital records indicate that he re-attended there on 13 and 16 December 2011 and finally was treated surgically on 18 December. Sunshine Hospital treatment continued on for something like 14 months and ended on 21 February 2013 as there was other therapy required for the thumb injury.[5] I accept his evidence the thumb injury has now recovered.[6]

[4]Transcript (T) 45

[5]PCB  31-32

[6]T 49

9       Before going any further with the facts it is probably useful at this stage to record how I found Mr Mayen as a witness. I accept his evidence about the stoicism expected in his culture. He gave stark evidence about the male initiation rites he endured. When this man speaks about pain I am satisfied he is well qualified.

10      His limitations went far beyond his lack of English skills and lack of formal education. Even with the benefit of a professional interpreter he had great difficulty understanding a number of very simple questions. When paperwork was pointed out to him with the Court Book being interpreted into his native language, he still had an obvious problem with comprehension.

11      I found him a very simple, unsophisticated man who seemed to be very limited in terms of his capacity to follow questions and express himself. Often he would respond to questions with answers that had little to do with the original question. However I found him a genuine man who was endeavouring to tell the truth within those serious limitations. He is well motivated towards work and would try if he could obtain an opportunity.[7] He has applied to get meatworks employment, because he knows that work, as far away as Swan Hill but to no avail due to his history of injury.[8]

[7]T97

[8]T97-98

12      Credit was not really much in issue in this case. There were some challenges. Examples were about his  driving, rotation of duties at work, his duties after his 2009 fall and the medication he took while still working. The defendant’s court book index indicates surveillance video was taken but none was shown.

13      The worker had returned to the factory after his lacerated hand was eventually  surtured and repaired at Sunshine Hospital. With his hand bandaged he presented for work but he was refused entry by the security people at the factory gate. Ali had apparently  told them he should not be allowed back into the factory and that is what occurred.[9] The worker indicated he wanted to work and was happy to endure pain and try to continue working but he was denied access to the factory.

[9]T 40

14      Following that his nine-year-old daughter wrote out a letter that he gave to the security person to pass on to the factory people.[10] This did not achieve entry to the factory he was hoping for and the plaintiff obtained a Centre Link medical certificate from Dr Abdi regarding his thumb injury. [11] This was in order to commence Social Security payments as he had no income and he was the breadwinner for his large family. Centre Link then commenced making some payments.

[10]Defendant’s Court Book(DCB) 62

[11]PCB 44

15      He was challenged as to why Centre Link were only told in this certificate about the lacerating injury and not the back. The cut hand had required hospital treatment and was obvious to all and sundry with its bandaged appearance. But it was very different with the back problems as he had basically hidden his ongoing back problem at work for some years, with good reason after Ali’s warning, and I accept at all times he was anxious to keep his job. There was no reason why he would include the back issue in any Centre Link paperwork and in any event, it was authored by Dr Abdi not the worker. He cannot  read English and had to rely on a child to write a simple letter to the factory for CentreLink purposes which did not mention the back.[12] Be that as it may while he did go off ultimately because of the laceration, that needs to be looked at in the context of him deliberately hiding his back injury from the employer and for good reason.

[12]DCB 62

16      He was taken to a large number of clinical records from Dr Abdi in Deer Park and from Dr Oludare in St Albans. The plaintiff had very little recollection of these matters but the point being made was that many attendances over years showed an absence in these notes of any references to back pain. Large gaps in pain killing scripts and references to  back pain appear. But  the plaintiff did get a number of repeat scripts. He also had referrals to two people for massage from Dr Abdi and another from Dr Oludare. He also had hospital treatment.[13]He currently takes a lot of different painkilling medication.[14]

[13]PCB 63-64,64A-B

[14]PCB 13

17      I accept he wanted to work  and generally just battled  putting up with pain. Mr Mayen summed it up accurately when he described his job and his predicament: “It’s heavy and I have pain in my body, but I have no way out. I’m the only breadwinner.”[15] Since 2009 he has suffered back pain which I accept has been  constant but varying in severity.[16] This constant spinal pain is with him to the present day.

[15]T 37

[16]PCB 8-11,13-14

18      What is clear also is that he has over the years been ingesting painkilling medication that has included Panadol Osteo, Panadeine Forte, Lyrica and Tramadol. Sitting constantly in this jurisdiction I do not require evidence to tell me some of these are strong drugs and are consistent with real pain. He has also had physiotherapy. He has had injection treatment for his back at hospital. He was also referred to two clinics at St Vincent’s Hospital for different  treatments.[17] Treatment has been conservative but of a pattern indicating ongoing back impairment for a 55 year old man who has no surgical options open to him.[18]

[17]PCB 63

[18]PCB 57A,62,63,64B,97

19      The radiology shows clear pathology behind his symptoms and impairment. As early as 2012 MRI scanning showed disc disease that included protrusion abutting the L5 nerve root.[19] MRI imaging in 2017 reported the disc disease in terms of it clearly being more significant and widespread.[20] This objective evidence of disc disease in the lower back supports the evidence from Mr Mayen of ongoing impairment as well as those doctors that accept it.

[19]PCB 39

[20]PCB 58

20 It is not necessary to deal with every medical report in great detail. The majority medical view is clearly spinal injury suffered as a result of work and further, because of his back injury he cannot ever go back to the only work he had a capacity for in an English speaking community. This was heavy unskilled labour. The issue is whether or not he has any capacity for alternative suitable employment. On this topic the reality of the open employment market needs to be kept in mind when looking at “suitable employment” section 5 speaks of.

21      I am assisted more by the up to date reports in assessing the position now many years after suffering injury. Dr Abdi knows him well after years of treatment and his last word was “Mr Thon Mayen is unlikely to return to his pre-injury duties as his symptoms may exacerbate. He is suitable to retrain or rehabilitate to perform modified duties with weight restrictions up to 10 kg, minimal repetitive movement of back/bending.”[21] This has to be looked at realistically. For a man of his age who only worked in the heaviest of jobs and got by due to Arabic being the language spoken on the meatworks floor, this opinion amounts to no capacity for an unskilled labourer other than a theoretical one.

[21]PCB 57

22      The second treating local doctor was Dr Oludare and he also knows him well. He first saw the plaintiff for low back problems on 2 October 2012 and last saw him as recently as 29 January 2018. He has seen the patient also for a number of other general health issues over almost six years. He referred the patient to St Vincent’s Neurophysiotherapy Clinic in December 2012 and the plaintiff was referred from there in September 2013 to the Neurosurgical Outpatient Clinic.[22]

[22]PB 73

23      In a very recent report on 20 February 2018 Dr Oludare said : “Mr Mayen has no work capacity for his pre-injury duties. Given his age, 55 years, poor English language skills, lack of formal education, it will be difficult for him to transfer to another vocation that does not involve menial tasks. Prognosis for his condition is poor due to chronic pain.”[23]

[23]PCB 98

24      He was the only doctor to give oral evidence and be cross-examined. He did not move away from the opinion just quoted. I found his evidence measured and persuasive. He was taken to his clinical notes and he described the different painkilling medications the plaintiff has required over the years which include some prescription and over-the-counter painkillers. The injury was discal prolapse abutting the L5 nerve root. [24] The pain was chronic and clinically supported. The doctor put it bluntly when he said “It is not that he’s making it up.”[25]

[24]T 81

[25]T 81

25      When asked about capacity for employment he repeated the obvious in pointing out Mr Mayen’s lack of any skills, total lack of English language capacity and said he was not fit for any lifting or prolonged sitting duties. The highest it got for the defendant was that Dr Oludare thought it was “possible” for the patient to do some light assembly type work.[26] Of course a person would need to understand English to be able to even follow instructions and appropriately perform such duties. In any event the test is probability, not possibility or theory.  I accept this doctor’s evidence that was tested in cross examination and amounted to saying his patient had no realistic earning capacity at all.

[26]T 79-80

26      The plaintiff relied on a number of medico-legal reports including one from Mr M Fogarty ,orthopaedic surgeon. It is now more than four years old. Even in February 2014 he thought the prognosis was poor and it was a gloomy opinion about alternative employment. He said “ As a consequence of your client’s injury it is likely that he would be precluded in relation to employment or activities involving bending, lifting, twisting or stooping, pushing, pulling or lifting.”[27]This amounts to no capacity at all for Mr Mayen. Mr Fogarty thought this position would remain for the foreseeable future .[28] Time has proved him right.

[27]PCB 61

[28]PCB 62

27      Another surgeon, Mr B Love, reported back in 2015. He considered there was a work capacity “so long as he was not required to do repeated bending and stooping and heavy lifting.”[29] Of course these are the very duties an unskilled heavy labourer must do. Mr Love also supports my view there is no capacity for work when considered realistically.

[29]PCB 67

28      Mr D Brownbill, neurosurgeon, reported in 2016. His opinion was effectively the same. He said: “I consider he is likely to be restricted in relation to employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a marked extent and I consider such incapacity will continue for the foreseeable future.”[30] Again this is no real capacity.

[30]PCB 74

29      Dr R Horsley, occupational physician, wrote in August 2017 listing a large number of physical restrictions that in dot point form would rule out any labouring job. [31] As well as those wide ranging physical limits on Mr Mayen’s capacity, she went on to say something about section 5 considerations that I agree with : “Mr Mayen is disadvantaged. His 54 years of age. His only job in Australia has been in an abattoir. He has limited verbal English skills. He has very limited literacy skills in English. He has some limitation of literary skills in his mother tongue of Arabic. He has no formal qualifications.”[32]

[31]PCB 81

[32]PCB 81

30 The plaintiff also relied on a lengthy vocational assessment report dated 8 January 2018. It is a well argued and comprehensive report in which a number of suggested jobs put forward by the defendant were discussed. It is not necessary to go into any detail about it but I agree with the conclusions following a detailed analysis of section 5 considerations. They led the vocational assessor to conclude “I am unable to put forward any employment option for which I believe he is able to fulfil the inherent requirements.”[33] The opinion was that Mr Mayen has no capacity for suitable employment nor is he a realistic retraining prospect is sound. I reject the suggestion Mr Hartley was more of an advocate than an objective expert.

[33]PCB 96

31      The material relied on by the defendant included a 2013 report from Mr Clive Jones, orthopaedic surgeon, which is now  out of date being over four years old.[34] He did not accept the injury was compensable. He is on his own in that regard. The report was not soundly based even then. Mr Jones did not even have all the radiology that was available at that time. The history he obtained of injury is extremely thin and inadequate. I am not assisted by his report in assessing the situation now.

[34]DCB 1-4

32      Mr Ian Jones, orthopaedic surgeon, examined the plaintiff only once and that was in September 2015. He attributed spinal injury had occurred in the course of employment with clinical and radiological evidence of degenerative disc disease. This was at a number of levels in the low back with disc protrusion at L5.[35] He did not really comment on earning capacity.

[35]DCB 10

33      Mr M Shannon, surgeon, also examined the plaintiff once in May 2016. He diagnosed mechanical back pain associated with degenerative disc disease aggravated by work related injuries.[36] Clearly he considered the issue of causation but in the end accepted a spinal impairment was part of “work related injuries”.[37] The purpose of this report seems to have been an AMA percentage impairment assessment of a spinal injury accepted by the Medical Panel.[38] No comment was made about earning capacity.

[36]DCB 13

[37]DCB 14

[38]DCB 11

34      Dr M Bloom, occupational and environmental physician, examined Mr Mayen in May 2017 and again in February 2018. He suggested two jobs were suitable. They were product assembler and order picker.[39] But he also set out in dot point form very real and wide restrictions on Mr Mayen’s physical capacity as well as his lack of transferable skills and lack of capacity to negotiate flexible arrangements at a workplace.[40] The plaintiff properly raised the lack of language skills when asked about these jobs. When the tasks involved are looked at carefully, such as filling orders in a large cosmetic distributor, a basic understanding of written and spoken English must be essential in order to competently fill orders.  Similarly, to properly assemble products there has to be a reasonable level of communication, even of a basic nature. This worker has none. Nor is he literate digitally or in numeracy.[41]

[39]DCB 29-30

[40]DCB 23,29,30

[41]PCB 90, DCB 56

35      Mr K Siu, neurosurgeon, saw the plaintiff for the defendant only once in June 2017.He was equivocal on causation when he said “there may have been episodes where he may have sustained “back injury.[42] In the end he seemed to accept a compensable spinal injury in saying “The diagnosis is persisting symptoms of low back pain against a background of degenerative changes in the lower lumbar spine.”[43]

[42]DCB 35

[43]DCB 35

36      He questioned the worker’s motivation but it seemed he was somewhat equivocal about that.[44] Having seen and heard Mr Mayen over three hearing days I reject any suggestion he lacks motivation based on Dr Siu’s one meeting. I accept he would “try” working in the only area he is experienced in as far away place as Swan Hill if given the chance.

[44]DCB 36

37      In a short letter Dr Siu, without any explanation as to how or precisely when, stated the current symptoms were constitutionally based and the work aggravation would have ceased after two years.[45] What this view is based on when Dr Siu has not even seen him again is nowhere explained. It reads more like some “motherhood’ statement about spinal degeneration rather than a reasoned opinion about Mr Mayen. How this opinion fits with the insurer’s admission of liability is not easy to reconcile but I do now have to deal with that evidence as it was withdrawn at the end of final addresses. Without hearing from him I am not prepared to accept his opinion in the face of Dr Oludare who was cross-examined and Dr Abdi both of whom have treated their patient over many consultations.

[45]DCB 36A

38      A Recovre vocational assessment report dated 13 November 2017  was tendered by the defendant.  The Recovre people did not even personally interview the worker.[46] I have already stated what a great benefit it was to both see and observe the plaintiff giving evidence over three days. Even more to the point, Recovre’s report  was based on such inadequate documents that I give it very little weight. One report from Dr Bloom in 2017 together with one from Mr Siu in 2017 was all the medical material forwarded to Recovre. To then comment on work capacity and to suggest jobs with none of the plaintiff’s doctors’ opinions  nor even his affidavit setting out what he said about his back  means this report is extremely defective. By contrast Mr Hartley discussed at least seven doctor’s opinions. I am not assisted by Recovre’s report. It is little more than theory regarding a worker who was never even interviewed.

[46]DCB 37

39      I am satisfied the plaintiff has proved a permanent loss of 40% or more earning capacity. It follows I also grant leave for pain and suffering.