Mulual v VWA
[2019] VCC 588
•3 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No.CI-18-04734
| DENG MALUAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1,2,3 May 2019 | |
DATE OF JUDGMENT: | 3 May 2019 | |
CASE MAY BE CITED AS: | Mulual v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 588 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury -
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:
Judgment: Leave granted to issue proceedings for the recovery of damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Slater and Gordon |
| For the Defendant | Mr D Myers | IDP Lawyers |
HIS HONOUR:
1 This is an application for pain and suffering and pecuniary loss leave relying on a paragraph (a) injury and impairment to the left shoulder. The defendant has sensibly and responsibly indicated there is no real issue about “serious injury” with respect to pain and suffering consequences. The issue for determination is whether or not the plaintiff has proved a permanent 40% or more loss of earning capacity.
2 The issue can really be even narrowed further to whether or not the plaintiff has satisfied the onus of proving an inability to be retrained for or to undertake suitable alternative employment. Implicit within this defence, counsel questioned the worker’s compliance with the exercise routine advised to him, his English language skills and his general motivation to rehabilitate.
3 For purposes of assessing whether an injury is “serious” under the Act , there is required a judgment by comparison with other cases in the range of possible impairments and a determination then if the consequence may be fairly described as being at least very considerable. Often the ultimate finding involves matters of fact, degree and value judgment.
4 The worker is a 33-year-old man who was a refugee from Sudan following the brutal war there. At 18 years of age he fled to Egypt and he came to Australia in 2009 when he was about 23. Quite unusually in these applications, he is a man who has had no formal schooling in any country. He did not even go to school in Sudan. Except for the compulsory brief English course refugees are given in Australia, and several other English courses, he is totally uneducated even in his own languages which are a Sudanese Dinka dialect and Arabic.
5 He is illiterate in all languages. His affidavits were sworn via interpreters and he needed a professional interpreter in court. His ability to communicate in English is very limited. He has a driving licence but apparently needed to attend on VicRoads with a Dinka interpreter in order to obtain it. Clearly what he brought to the employment market in this country was a willingness to work as well as a strong back and two strong arms. He was a cattle herder in Sudan and here worked as an abattoirs knife hand for several years and then as a car detailer.
6 On 25 February 2014 he obtained a job as a labourer with Melbourne Recycling Centres Pty Ltd. This job was a physically demanding job sorting out and lifting heavy items of waste including lifting them from a conveyor and putting them into bins. It was constant, repetitive, demanding physical work. He got up to 37.5 hours per week at one point after starting as a casual on less hours and in one week grossed $1293.[1]
[1]Plaintiff’s Court book(PCB)156-157
7 On 10 September 2014 he injured his left shoulder when a large piece of concrete became caught on a metal frame and had to be quickly pulled from its position in the conveyor belt system. When he lifted the concrete upwards he felt immediate pain in his left shoulder. He pushed the concrete away and it fell to the ground. He stopped working immediately after the accident.[2]
[2]PCB8
8 He then commenced a course of treatment that has been long and varied over a period that is now into its fifth year. Radiologically the significant damage to his left non-dominant shoulder has been objectively demonstrated. I will deal with the extensive treatment regime but save to say at the outset that as well as a number of conservative approaches, he has undergone two operations at the hands of a specialist surgeon, Mr D Li . These were on 5 February 2015 and then again on 1 May 2017. Unfortunately these have not been successful. In between the two operations he also underwent the painful invasive procedure of hydrodilitation performed by his specialist.
9 He has been referred off and undergone two courses of multi-disciplinary pain management treatment under Dr M Ong’s team at the Advance Healthcare organisation. He continues to see his general practitioner and still sees Dr Ong for pain management. Just to give some idea of the extent of ongoing treatment, he is still ingesting very significant amounts of prescription medication by way of Lyrica 25 mg, Endep 50mg, Meloxicam 7.5mg as well as Gababentin100 mg twice daily.[3] Some changes to this regime of drugs is proposed.
[3]PCB28
10 It was an advantage to be able to both observe the demeanour of Mr Malual and to hear him. The first and obvious point is he needed the interpreter often, sometimes even with simple questions. Also, language aside, his comprehension is limited and he is clearly an uneducated, quite simple fellow. He is trying to improve his English by speaking it at home and practising with neighbours and his wife who is also Dinka although this year she is now living interstate.[4] This is consistent with a motivated but illiterate worker trying to improve his speaking skills.
[4]Transcript(T)48-49
11 It was not always easy to follow his evidence even on basic topics and using the interpreter. One such topic was English classes and what level he had attained and why he had not progressed. After considerable questioning, some from me, it seems he attempted two English classes last year through the WorkCover agent, Nabenet, but did not reach the requisite standard. He was hard to understand but he has not progressed far, if at all, and he had in fact regressed to a “zero” standard in these English course.[5] There is some controversy on the evidence why he got nowhere in these early attempts at improving his English, but I accept his evidence that the teacher told him it was because he could not read or write. His illiteracy is not contested.
[5]T60,82-83
12 As it was still not entirely clear what he was saying I asked myself at the very end of re-examination, just how many English courses he had attempted to improve his skills.[6] It seems it has been four with the last one occupying some months late last year and from February and into May this year. One course he did back in 2016 he paid for out of his own pocket. Then he started a third time in 2018 ending in August. Then the current course commenced late last year and recommenced this year. This is the fourth attempt to pass the basic or first level English course. He is currently going from his home two days per week since February 2019 to English classes in Deer Park.
[6]T84-85
13 This is commendable evidence of motivation and determination by an illiterate man. He was a candid witness and said he should have a better chance at this English course this year because he is no longer having physiotherapy appointments nor picking up children from school as they are with their mother.
14 Interestingly there was no evidence about his progress or otherwise from the defendant about this fourth and current course. I reject the submission this man in any way lacks motivation to rehabilitate. He certainly lacks skills and comprehension but he has made reasonable efforts to rehabilitate and up-skill.
15 As to compliance I accept he does about 20 minute sessions of exercises twice a day as shown by his physiotherapist. He was cross-examined about non-compliance with exercise advice by reference to several comments by his treating surgeon, Mr Li, particularly after the first operation in 2015. This did not persuade me of any non-compliance or lack of motivation.
16 I accept the fact that he was never actually given any exercises to do by Mr Li. They came from the physiotherapist he was sent to by Mr Li. I accept the plaintiff has followed the exercise routine the physiotherapists have given him. It would be a curious inconsistency for a patient compliant enough to follow advice to twice go “under the knife”, have hydrodilitation, undergo two multi-disciplinary pain management courses and still be taking narcotic drugs for pain to not do simple exercises he was given.
17 He was challenged about missing some appointments and generally lacking motivation in relation some of the statements and job suggestions in Nabenet’s documents. The plaintiff did not adopt any of these suggestions about him not complying or not co-operating and I am not prepared to accept these Nabenet criticisms in the face of the sworn evidence tested in cross-examination from Mr Malual. No-one from Nabenet has gone on affidavit.
18 I found the worker to be a genuine witness attempting to tell the truth at all times. He laboured under language and some other limitations but he did not exaggerate. He understated his problems if anything. Given the life journey he has endured that was probably no surprise. He made some admissions against interest. In the end I am comfortably satisfied his evidence about symptoms and incapacity is both reliable and accurate.
19 It also should be remembered that he was sent to an Independent Medical Panel back in October 2017. This was to determine what injuries he suffered and whether or not he was qualified to receive total incapacity weekly payments under the WorkCover legislation. The opinion of the four independent doctors he came before could not have been clearer. Obviously this is just another opinion in the body of opinions provided to the court in this application, but it does come from that independent Panel. The four doctors were required to assess capacity after interviewing him with a Dinka interpreter and being sent no less than 30 medical and other documents including certificates, radiology and medical reports.[7]
[7]PCB136-137
20 The Panel had to answer a question about what medical condition he had suffered in the work accident. The answer was that he was suffering from “dysfunction of the left shoulder following a soft tissue injury, treated surgically, complicated by mild adhesive capsulitis”.[8] Perhaps even more to the point in this application, they were then asked a second question about current work capacity and whether the situation was likely to continue indefinitely. The answer was “In the Panel’s opinion, the worker has no current work capacity and this situation is likely to continue indefinitely”.[9] Accordingly he was recommenced on total incapacity statutory payments and continues on such payments to the present day. I accept the opinion of this independent Panel.
[8]PCB125
[9]PCB125
21 For completeness the Panel considered a Nabenet vocational assessment report that is of no use in assessing capacity now in May 2019. It followed an assessment on 25 February 2015 only 20 days after his first operation. This of course was well before his hydrodilitation, second operation, two pain management programs and is of no assistance. In any event the Panel largely disagreed with the five suitable alternative job suggestions and seemed to have taken into account the considerations in the statutory definition of “suitable employment” set out in section 3 of the Act. The panel also were obviously very cognisant of his English language limitations.[10]
[10]PCB125-137
22 No doctor said that this unskilled, uneducated man can go back to pre-injury repetitive manual employment so what this case really requires is a realistic assessment of the concept of alternative suitable employment. The court is required to have regard to the worker’s incapacity, his pre-injury employment, his age, education, skills and work experience. From the very outset I find that this is an uneducated man who started from probably as low a base in the employment market in our English speaking community as anyone in terms of any realistic capacity for employment.
23 In accordance with general practice in this jurisdiction I will make some brief comments about the medical evidence but by and large the reports speak for themselves. Starting with the radiology he suffered objective damage or pathology to a number of structures in and around the left shoulder in the accident. A full thickness supraspinatus tendon tear with sub acromial bursitis with impingement were demonstrated.[11] Not surprisingly the general practitioner he saw the day after he was injured, Dr E Oludare, referred him for specialist treatment. Also not surprisingly, given the pathology, he was on the operating table within months as conservative treatments were in vain.
[11]PCB154,155
24 Mr Li’s operation notes speak for themselves about the major procedures that were required in theatre. On 5 February 2015 he underwent left shoulder arthroscopy and acromioplasty, subacromial bursa excision and open rotator cuff repair. It was a double row rotator cuff repair that required two SwivelLock anchors to be attached medially and two SwivelLock anchors laterally with two fibre tapes to complete the suture bridge configuration. Also FibreWire was added anteriorly and posteriorly and all this just demonstrates the very significant widespread shoulder damage necessitating repair.[12]
[12]PCB47
25 Unfortunately this repair was not successful and after trying a pain management approach as well as medication, Mr Li recommended hydrodilation in the hope that it would improve both pain and mobility.[13] It did not. A second operation took place on 1 May 2017 at the hands of Mr Li. Again the operation report speaks for itself about the extent of the attempts to repair his left shoulder which required arthroscopy, debridement and release.[14]
[13]PCB58
[14]PCB65
26 No real improvement occurred so further physiotherapy, attendance on his local doctor, multiple medications and another multi-disciplinary pain management program were all undertaken. That last program ran from November 2017 to February 2018 and that has been the last major event in a long and sad history of active treatment that has not resulted in any significant improvement in either the level of his constant pain or ability to use the shoulder in any meaningful way. Just the present medication regime involving very strong narcotics is testimony to the level of this shoulder impairment.
27 Before dealing with the actual opinions of the doctors about his capacity for alternative work, only a couple of final comments are required about the treatment Mr Malual has undergone. The extent and invasive nature of it indicate his determined motivation to get better and try and get back to work in his new country. It also supports my finding on the probabilities that he is left with this serious left shoulder impairment for the foreseeable future.
28 The local doctor he saw the day after he was injured still treats him. He knows the worker better than anyone. Dr Oludare has a number of reports but only last week he could not have been clearer in saying it was a poor prognosis for this patient who was only a manual worker “Mr Malual has no capacity for his pre-injury duties as the duties involved lifting and repetitive movements of the left shoulder. Given his lack of education and poor English language skills, he is only qualified for vocation that involves manual tasks”.[15] There was no further treatment except pain management and self-managed physiotherapy so clearly the impairment was there for the foreseeable future. I accept Dr Oludare. Interestingly, as to compliance the doctor stated his patient “dutifully complied” when it came to rehabilitation.[16]
[15]PCB45
[16]PCB42
29 Mr Li said the outcome was poor after the first operation and said “Deng is not fit to return to work. I doubt he will return back to the workforce again.”[17] Mr Li then proceeded to the further referrals and procedures including to physiotherapy and pain management. He made some critical comments about compliance with exercises. As stated these were physiotherapy exercises that did not come from Mr Li and I accept the evidence of the worker that he did what he was told in relation to exercises and is still doing so now. Interestingly Mr Li reported in 2017 “Pain management is the key but this seems to fail.”[18]
[17]PCB50
[18]PCB60
30 Some optimism seems to have come into Mr Li’s thinking but he last saw the patient in 2017 so his opinion is not quite up to date. He said that Mr Malual does not have any capacity for pre-injury work but he thought he could work in some form of part-time, light duties. However when those suggestions are looked at it is clear they are more theoretical than real for an unskilled, uneducated, non-English speaking labourer. When the reality of the employment market is considered part time, light duties with his restrictions effectively means no capacity at all when the definition of “suitable employment” is considered. The restrictions are “I would suggest his duties be performed at waist level and not involve repetitive movements and be lifting no more than say 2kg”.[19] This amounts to no real capacity at all for an unskilled labourer.
[19]PCB71
31 Dr Ong headed up the Advance Healthcare team and I will not go into great detail about all of the contributors by way of reports from people involved at that pain management group. He was treated there by Dr Ong the occupational specialist, by a physiotherapist as well as a psychologist. Clearly some secondary psychological condition developed in time. This is no surprise given this man’s failed operations and other treatment procedures as well as his loss of employment. All this would be inevitably lead to a sense of helplessness with his lack of education and language skills. On any view it is an organic condition that he is suffering from with some mental reaction understandably coming on top of that persisting organic impairment.
32 The view of Dr Ong here is that the patient was unable to return to work. At best he only had a limited capacity. When that limited capacity is really looked at it is only theoretical and amounts to no capacity at all for this very limited worker. The doctor said “His capacity remains limited, lifting under 2.5kg, no prolonged positions, no repetitive duties, no overhead or floor level floor work, no bending or twisting duty. His capacity for office-based only duties 1-3 days per week at 3-6 hours per day with breaks. He must also minimise pushing/pulling, bending/crouching, prolonged walking, uneven ground, kneeling/crawling, squatting fully, climb, reach high up low down, or any heavy manual repetitive duties.”[20] As head of the Advance Healthcare team Dr Ong describes a total incapacity for manual labour.
[20]PCB83
33 I will deal only briefly with the medico-legal opinions because I am satisfied on the basis of those practitioners charged with treating Mr Malaul over the years, he has totally lost his earning capacity when looked at out in the real world. Given the amount and extent of treatment to date this situation will unfortunately remain for the foreseeable future.
34 I have already discussed the Medical Panel Opinion. Mr P Hartley,occupational rehabilitation consultant, reported at length in August 2017 and dealt with the question of retraining as well as a general view about earning capacity. Without quoting him in detail, he thought that for the foreseeable future the worker had no capacity for his old job or for any suitable employment when the factors required by the Act regarding suitable employment were considered.[21]
[21]PCB121
35 Dr R Horsley, occupational health and rehabilitation, felt in December 2017 that his opportunity for redeployment was very limited with a guarded prognosis. She put limits on him “If he were to return to the workforce” and on reading her report that is only raised as a remote possibility. She noted his illiteracy and his low-grade transferable skills in the manual area. She felt that “if” he did return “…it would need to mean a role that involves just his right arm. On the left side, he needs to avoid overreaching, pushing, pulling, above waist height activities based on his very poor range of motion. He should only be working at waist height and primarily right hand.”[22] For an unskilled labourer this is no real capacity at all.
[22]PCB143
36 Dr G Weekes, pain specialist, reported only about two weeks ago and he thought the prognosis was poor. The plaintiff had undergone both invasive and multidisciplinary approaches to his pain but he was still likely to suffer severe levels of pain and significant levels of disability for the foreseeable future.[23] As to work there was only a theoretical capacity for alternative employment. “This employment would have to be of quite a sedentary nature and considering his level of disability and level of pain, his level of education and his work experience, it is highly unlikely that he would be able to obtain such employment in the open market and be able to perform that employment on a reliable and consistent basis”.[24] Mr Malual also has the added language handicap.
[23]PCB153
[24]PCB152
37 The defendant tendered a March 2018 report from the occupational and environmental physician, Dr D Fish, but it is really an AMA% assessment of permanent physical impairment. He did not comment on earning capacity so it does not help much but he found a clear stable, organic impairment sufficient to put a permanent percentage figure on.[25]
[25]Defendant’s Court Book(DCB)42-48
38 Mr R Simm, Orthopaedic Surgeon, reported in July 2018 and that was the last medical opinion on behalf of the defendant. Given treatment has been ongoing it is a little out of date.[26] He accepted there had been physical injury needing surgery but a chronic pain or functional overlay had come into the picture and seemed to him to be the main driver of incapacity when he saw him in July last year. The report is equivocal and hard to follow as he ended by referring to “peripheral and central sensitisation” as being a physical condition.[27]
[26]DCB49-55
[27]DCB55
39 However I have not heard from him and can only make of the written word what I can. I do not read him as saying there is not a physical cause for the shoulder symptoms but rather that in time more of a secondary mental health response has arisen. If I am wrong in understanding his opinion on that basic causation point, then I reject his view it is psychologically caused as being contrary to the vast weight of medical opinions. Responsibly the defendant did not argue that the impairment was not organically caused. It did no credit to Mr Simm’s views that he thought the out of date 2015 Nabenet job suggestions were suitable but he did not even receive the Nabenet report.[28]
[28]DCB55
40 A raft of Nabenet/NES vocational assessment documents were tendered.[29] Some have already been discussed and a lot are 2015 and 2016 in terms of dates, so they are so old they do not carry much if any weight in assessing the situation now. I have commented already on how these came before the second operation as well as a litany of other treatment modalities. A chain of more recent emails and other documents were also tendered from the rehabilitation people.[30] They largely concern English classes and suggested missed appointments and generally a non-compliant attitude by the worker. There are some real unexplained inconsistencies in these attendance records.
[29]DCB109-158
[30]DCB147-158
41 Nabenet said they prepared a written Resume for him.[31] No Resume has been tendered. They say they prepared “an email address and Seek profile” for him. [32] None have been tendered. They say job applications were done for him. None have been tendered. Only two comments are required. Firstly, not only have I not seen any of these suggested documents but none of this material has been put on affidavit. Secondly, I accept the sworn and tested evidence of Mr Malual on these topics.[33]
[31]DCB125
[32]DCB125
[33]T78-79
42 It is not necessary to deal with the plaintiff’s submission regarding ongoing weekly payments and s.116 of the Act. Accordingly I do not take it into account.
43 Finally just so there is no doubt about the defence, I am satisfied that Mr Malual has proved he has made reasonable attempts to rehabilitate and retrain himself and this involves repeated attempts to improve his English. I am also satisfied he has no capacity for any employment, therefore this obviously applies to any alternative “suitable employment” as defined in the Act. This situation is likely to remain for the foreseeable future. It follows he has proved a permanent loss of 40% or more earning capacity.
44 I grant leave to issue proceedings for the recovery of pecuniary loss and pain and suffering damages.
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