Patel v Inghams Enterprises Pty Limited
[2024] VCC 344
•27 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02812
| DAXESHKUMAR PATEL | Plaintiff |
| v | |
| INGHAMS ENTERPRISES PTY LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 February 2024 | |
DATE OF JUDGMENT: | 27 March 2024 | |
CASE MAY BE CITED AS: | Patel v Inghams Enterprises Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 344 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – psychological injury – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s 335
Cases Cited:Church v Echuca Regional Health (2008) 20 VR 566; Richter v Driscoll (2016) 51 VR 95; Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232
Judgment: Leave granted to seek loss of earning capacity and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr O T Lesage | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Sparke Helmore Lawyers |
HER HONOUR:
Introduction
1Mr Daxeshkumar Patel, the plaintiff, is a forty-eight-year-old former process worker. He claims that on 3 April 2017, he suffered an injury to his lumbar spine in the course of his work for the defendant, Inghams Enterprises Pty Limited (“Inghams”). He also claims to have suffered a consequential psychological injury.
2Mr Patel applies for leave to bring a common law proceeding seeking pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his lumbar spine and/or a “severe” psychological condition.
3To succeed in his application for leave to claim pain and suffering damages, Mr Patel must establish that the permanent impairment consequences of his compensable lumbar spine injury are “serious”, that is, that they can be “fairly described as being more than significant or marked, and as being at least very considerable”. The compensable psychological condition must have “severe” impairment consequences to meet the statutory threshold.
4To succeed in his application to seek loss of earning capacity damages, Mr Patel must establish that he is permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment by reason of his lumbar spine injury and/or psychological injury. He must also establish that the loss of earning capacity consequence of the lumbar spine injury is “serious”, and/or that the loss of earning capacity consequence of the psychological condition is “severe”.
5Inghams conceded that Mr Patel suffered a compensable injury to his lumbar spine on 3 April 2017. It submitted that Mr Patel had recovered from that injury, and any consequential psychological injury from which he suffers does not satisfy the statutory threshold. Inghams further submitted that Mr Patel can perform suitable employment and is not permanently unable to earn at least 60 per cent of his “without injury” earnings.
6Inghams made a sustained challenge to Mr Patel’s credibility and reliability. That challenge was largely based on surveillance footage.
7The issues for determination are:
(a) Was Mr Patel a credible and/or reliable witness?
(b) What, if any, permanent impairment consequences are due to the compensable lumbar spine injury?
(c) Is Mr Patel permanently unable to earn at least 60 per cent of his “without injury” earnings because of the impairment consequences of the compensable lumbar spine injury?
(d) Is the loss of earning capacity consequence of Mr Patel’s compensable lumbar spine injury “serious”?
(e) Are the permanent impairment consequences of the compensable lumbar spine injury “serious”?
(f) Which, if any, of Mr Patel’s permanent impairment consequences are due to the compensable psychological injury?
(g) Is Mr Patel permanently unable to earn at least 60 per cent of his “without injury” income because of the impairment consequences of the compensable psychological injury?
(h) Is the loss of earning capacity consequence of Mr Patel’s compensable psychological injury “severe”?
(i) Are the permanent impairment consequences of the compensable psychological injury “severe”?
8For the reasons that follow, Mr Patel is granted leave to seek loss of earning capacity damages for his compensable lumbar spine injury. Such leave also entitles Mr Patel to claim pain and suffering damages.
9As leave is granted for the lumbar spine injury, it is unnecessary to consider the application with respect to the psychological injury.
Background
10The following, I believe, are non-controversial matters. As far as any were contested, these represent my findings unless otherwise stated.
11Mr Patel was born and brought up in India. He completed high school and obtained a Bachelor of Arts and a Diploma in software engineering.
12Mr Patel then taught computer-based skills to children for several years.
13Mr Patel married in 2003. He and his wife migrated to Australia in 2007, when Mr Patel was thirty-one years old.
14Following his arrival in Australia, Mr Patel was unable to obtain IT-related work. He worked as a dockhand and labourer for five or six years, and as a kitchenhand for about four years. In February 2016, he began working for Inghams as a process worker. He also did some part-time work as an Uber driver at the weekends.
15On 3 April 2017, Mr Patel was using a plastic shovel to remove chicken carcasses from a tank when he experienced low-back and left leg pain. This was the incident which is the subject of this application.
16Mr Patel was absent from work for about a week, before returning to perform modified duties on reduced hours. He continued to do so until September 2019, when he ceased work completely due to his lumbar spine injury. He has not worked in any capacity since that time.
17Mr Patel has undergone several scans of his lumbar spine. He has had extensive conservative treatment of his lumbar spine condition including two epidural injections, medial branch blocks, sacroiliac joint injections, radiofrequency denervations and a Ketamine infusion.
18Mr Patel was referred to two neurosurgeons, each of whom recommended surgery; however, surgery did not take place as it was not endorsed by a Medical Panel.
19Over the years since April 2017, Mr Patel was prescribed various medications for his lumbar spine injury. That medication regime recently changed as Mr Patel’s ingestion of Palexia had caused significant side effects.
20Mr Patel currently takes CBD oil, gabapentin, Panadol, and Nurofen on a daily basis for his lumbar spine condition. He has hydrotherapy regularly.
21Mr Patel has been treated by a psychiatrist and psychologist for his consequential psychological condition and is currently prescribed Cymbalta and Mirtazapine.
22Mr Patel lives with his wife and young son in suburban Melbourne.
Was Mr Patel a credible and/or reliable witness?
23Mr McKenzie, who appeared on behalf of Inghams, submitted that Mr Patel was not a credible or reliable witness.
24Mr McKenzie submitted that surveillance footage taken of Mr Patel revealed that he was capable of performing a range of activities without pain or restriction.
25In addition to reliance upon surveillance footage, Mr McKenzie submitted that:
(a) in his first affidavit, affirmed on 18 January 2023, Mr Patel had not been truthful when he deposed that he was unable to pick up his son, run around with him or play ball with him, and that he usually played with his son while sitting on a chair;[1]
(b) Mr Patel had incorrectly identified the year that he stopped working at Inghams as 2018, when it was 2019;
(c) Mr Patel did not disclose his Uber driving in his affidavits, and his evidence as to whether he had done any Uber driving after April 2017 was unsatisfactory;
(d) While at Court, Mr Patel had laid down outside the courtroom as “part of a show”. Mr Patel said that he laid down to help his pain.
[1]Plaintiff’s Amended Court Book (“PCB”) 13
Surveillance footage
26Inghams admitted that 72 hours of surveillance was conducted of Mr Patel over 12 days between November 2018 and March 2023. Approximately 42 minutes of surveillance footage was obtained on seven of those days. All the surveillance footage was played during the hearing. I have carefully watched the surveillance footage again in the preparation of these reasons.
16 and 17 November 2018
27Seven minutes of surveillance footage was obtained on these dates.
28On 16 November 2018, Mr Patel was seen driving. His father-in-law was a passenger. They went to a local Bunnings store and walked around. Although the surveillance footage did not show Mr Patel buying anything, he agreed during cross-examination that he may have bought something. He said that his father-in-law helped him fit some curtains at home.
29The footage was taken at a time when Mr Patel continued working for Inghams on modified duties. In my view, it did not show Mr Patel doing anything he had said he could not do.
14 August and 26 November 2021
30Approximately 24 minutes of surveillance footage was taken across 14 August 2021 and 26 November 2021.
31On 14 August 2021, approximately 20 minutes of surveillance footage was taken of Mr Patel at his local playground with his son. At the time, Mr Patel’s son was three years old. The surveillance footage started at 2.58pm when Mr Patel arrived at the park and ended at 3.40pm when he arrived home.
32On several occasions Mr Patel bent down to assist his son. He also carried him at times to help him on and off pieces of play equipment.
33Mr Patel accepted that he performed the various movements that Mr McKenzie put to him. When it was suggested to him that he did so with no sign of any problem, Mr Patel responded, “I have a pain, but I can’t show my son like I’m in painful (sic) all the time, right? So, in the world any man can do with his child.”[2]
[2]Transcript (“T”) 31
34At another point Mr Patel was seen to run after his son when he was near a road, and in his driveway. It was put to Mr Patel, and he agreed, he was possibly smiling when he did this. I noted that Mr Patel was wearing a facemask throughout this footage, and I was unable to discern the expression on his face. This appeared to me to be an example of Mr Patel making an admission against interest.
35My impression was that Mr Patel moved carefully in that surveillance footage. For instance, on the occasion he lifted his son from the ground, he did so with bent knees and a straight back.
36In my view, the actions Mr Patel was seen to perform on that day were not out of keeping with the way Mr Patel had been presenting to doctors at that time.[3]
[3]For example Mr Ales Aliashkevich, PCB 191; Dr Jason Chou, PCB 194; Mr Paul D’Urso, PCB 196; Dr Selina Lim PCB225-226, and Mr Francis Ghan, Defendant’s Court Book (“DCB”) 46
37On 26 November 2021, Mr Patel was filmed moving two empty wheelie bins. He then drove with his wife and son to visit friends. It appeared to me that Mr Patel was wearing a back brace. Mr Patel was seen leaning into the back of the car, doing up his son’s seatbelt. Later, Mr Patel went shopping and briefly bent into his car at one point.
38When asked about the surveillance footage, Mr Patel readily agreed that he performed the various activities shown in the surveillance footage. He stated that his pain fluctuated, and that he had not said he was unable to do anything. He denied that he had exaggerated the problems he had with his back.
39There was nothing that Mr Patel was seen to do in the surveillance footage on 14 August and 26 November 2021 that caused me to doubt Mr Patel’s credibility.
9 September 2022
40Approximately 4 minutes of surveillance footage was taken on 9 September 2022.
41Mr Patel was seen in his front garden with his son. At one point he bent down to pick up a water pistol. He also bent to check the mailbox and bent to pick up some letters.
42When asked about the footage, Mr Patel agreed he performed those movements but rejected the suggestion that he did so without difficulty. Mr Patel said that he and his wife are the only ones who look after their son, and he has no choice but to perform some activities, particularly when his wife was at work.
43I accept that Mr Patel can bend briefly, and on occasion, as part of his daily activities. Again, this surveillance footage did not cause me to have any significant doubt as to Mr Patel’s credibility.
2 March and 10 March 2023
44Approximately eight minutes of surveillance footage was taken across 2 and 10 March 2023.
45On 10 March 2023, Mr Patel was seen moving two empty wheelie bins, then driving to the supermarket with his wife and son. He was wearing a back brace. Mr Patel was filmed in the supermarket with his wife and son and at one point he leaned into a freezer to retrieve an item. When Mr Patel got back into his car, he appeared to me to move very stiffly.
46Mr McKenzie put to Mr Patel that when seen by Associate Professor Abdul Khalid, psychiatrist, in January 2024, Mr Patel had said that when he goes shopping with his wife, he either sits down in the shopping centre or stays in the car. Mr Patel agreed that he had given that account to Dr Khalid, but explained that on 10 March 2023, his son was with them at the supermarket. He said his son is very curious and tends to pick things up, which is why he went into the supermarket with his wife on that occasion. In my view, Mr Patel’s account of his son’s level of activity in the supermarket was borne out in the surveillance footage.
47Later the same day, Mr Patel was filmed for about two minutes in his front garden. He was seen holding a small white plastic bucket and repeatedly bending. Mr Patel agreed that he was putting “manure” on his plants.
48Mr Patel said that he felt he had no choice but to do what he could in the garden. His wife worked full time, looked after the home, him, and their child but she could not do everything.
49The surveillance footage of Mr Patel bending repeatedly on 10 March 2023 did reveal a level of activity that seemed out of keeping with Mr Patel’s assertions regarding his ability to bend, his ability to garden, and his level of function overall. However, I bear in mind that the footage was on one day for less than two minutes. Earlier the same day, Mr Patel had moved very stiffly when getting into his car. Viewed in context, and given the variable nature of the plaintiff’s pain, the later surveillance footage does not cause me to have any significant doubt about Mr Patel’s reliability.
Conclusion
50I found Mr Patel to be a genuine and candid witness. He made several admissions against interest, such as that he had used a battery-operated Whipper Snipper on two or three occasions.
51Mr Patel’s injury occurred in 2017, now almost seven years ago. It is not surprising that he found it difficult to remember what happened when. In the intervening years he was prescribed strong analgesia, and there was evidence that this had affected his memory and concentration.[4] I am satisfied that Mr Patel was not attempting to mislead, but genuinely struggled to remember dates.
[4]PCB 242-243, PCB 257, PCB 267
52At the start of his oral evidence, Mr Patel corrected paragraph 44 of his first affidavit in which he referred to his ability to play with his son. He said that he did pick his son up from time to time, but he tried not to do it because of his back pain. During cross-examination, Mr McKenzie suggested to Mr Patel that the reason he corrected his affidavit was because he had become aware of the surveillance footage showing him picking up his son at the park. Mr Patel said that he made a mistake in his affidavit.
53I accept Mr Patel’s explanation regarding the reference to him being “unable” to pick up his son in his affidavit. I find that he has picked up his son from time to time, particularly when he was younger. Mr Patel’s son was born very prematurely in April 2018, at just 24 weeks’ gestation. He spent four months in hospital and remains small for his age. Although he was chronologically three years old when the surveillance footage was taken in August 2021, it was apparent that he had a slight build. Inevitably, parents tend to their children, even when they are in pain.
54Although Mr Patel’s affidavits did not mention his Uber driving, I accept his evidence, which was not challenged, that he advised Inghams of it during his employment. Further, Mr Patel disclosed his prior Uber driving to Dr Eman Awad, occupational physician, and Dr Simon Journeaux, orthopaedic surgeon. His evidence about when he ceased Uber driving was vague, but I find this was a product of Mr Patel’s poor memory.
55At one point during cross-examination, it became evident that Mr Patel needed to take a break. He appeared to me to be frustrated with some of the questions he was asked, and he also looked to be in some discomfort. It did not appear to me that Mr Patel was engaging in a “show”.
56Mr Patel described, and I accept, that he experienced variable pain and restriction, which was assisted to some extent by medication.
57Mr McKenzie submitted that the surveillance footage showed that Mr Patel had recovered from his back problem. I do not accept that submission.
58I bear in mind that Inghams conducted surveillance for 72 hours over more than four years, and only 42 minutes of footage was obtained. On those days where footage was obtained, it was relatively brief and did not show Mr Patel doing anything particularly vigorous or strenuous. He was not seen to engage in any heavy lifting. Mr Patel was seen to drive, care for his child, perform some light shopping, check the mail, bring in empty bins and perform a little gardening. All the activities were undertaken around the home or close to home. Whilst he was seen to bend, it was for brief periods.
59I bear in mind the guidance given by the Court of Appeal in Church v Echuca Regional Health[5] when considering the surveillance footage.
[5](2008) 20 VR 566
60Inghams chose not to provide any of the surveillance footage or surveillance reports to the medico-legal doctors they instructed to assess Mr Patel’s lumbar spine condition, even though some of the footage had been disclosed to Mr Patel.
61The content of the surveillance footage does not cause me to have any significant doubt about Mr Patel’s credibility.
62I find that I can generally rely on Mr Patel’s evidence as to his impairment consequences.
63Mr McKenzie very fairly conceded that if I were to find that I broadly accepted Mr Patel’s account of his low-back impairment consequences, then Mr Patel’s application would succeed for pain and suffering purposes.[6]
[6]T85 and T89
What, if any, permanent impairment consequences are due to the compensable lumbar spine injury?
64As I have said, there was no issue that Mr Patel suffered a compensable injury to his lumbar spine on 3 April 2017. The injury was an L5-S1 disc protrusion.
65Mr Mighell KC, who appeared with Mr Lesage for Mr Patel, submitted that the L5‑S1 disc protrusion had not resolved and continued to be the cause of Mr Patel’s physical impairment consequences. He submitted that the medical opinions overwhelmingly supported that finding.
66Mr McKenzie submitted that Mr Patel’s L5-S1 disc protrusion had resolved. That submission was primarily founded upon the opinion of Mr Francis Ghan, orthopaedic surgeon, who examined Mr Patel several times at the request of Inghams. The submission was also based on the contention that the surveillance footage supported a finding that Mr Patel was no longer restricted.
67In summary, Mr Patel claimed that the impairment consequences of his lumbar spine injury were ongoing low-back and left leg pain and restriction. The pain was constant but variable and necessitated daily analgesia. Mr Patel was limited in his ability to walk, sit and stand for prolonged periods, and to bend, lift and reach. His sleep was significantly disturbed by pain.
68Mr Patel relied upon an affidavit affirmed by his wife, Trupsha Patel, on 23 February 2024, which generally corroborated Mr Patel’s account of his impairment consequences. Inghams did not seek leave to cross-examine her.
69This is a convenient point to consider the medical evidence tendered by the parties relevant to Mr Patel’s lumbar spine condition.
Treating doctors
Dr Ales Aliashkevich, neurosurgeon and spinal surgeon
70Mr Patel tendered a report from Dr Aliashkevich dated 2 September 2021. He first saw Mr Patel on 5 July 2018. He saw him on two further occasions in 2018, and on four occasions in 2021.
71Dr Aliashkevich was of the view that Mr Patel’s chronic lower back, left buttock and leg pain was caused by a left paracentral L5-S1 disc protrusion compressing the left S1 nerve root.
72Dr Aliashkevich suggested consideration be given to an L5-S1 foraminal decompression initially and then an anterior disc replacement or fusion if there was no benefit from the initial surgery.
73Dr Aliashkevich thought that the prognosis was very guarded and was uncertain whether Mr Patel would be able to achieve any meaningful functional recovery in the foreseeable future.
Dr Jason Jing-Chen Chou, specialist in anaesthesia and pain medicine
74Mr Patel tendered a report from Dr Chou dated 16 November 2021. Dr Chou reviewed Mr Patel on two occasions in 2021. It is not clear when Dr Chou first began treating Mr Patel. The report was brief. It noted Mr Patel’s then current medications, and the fact that he continued to suffer from fluctuating back pain.
Mr Paul D’Urso, neurosurgeon
75Mr Patel tendered a report from Mr D’Urso. Mr D’Urso examined Mr Patel on 15 November 2018 and 18 November 2021.
76Mr D’Urso noted that MRI imaging of Mr Patel’s lumbar spine on 25 February 2021 revealed a left sided L5-S1 disc prolapse with an annular tear and some foraminal stenosis of the left L5 nerve root. He was of the view that Mr Patel’s condition was stable, but he was “clearly failing” with conservative management. He offered a minimally invasive fusion procedure.
Dr Selina Lim, general practitioner
77Mr Patel tendered a report from Dr Lim dated 20 January 2023. Dr Lim first saw Mr Patel shortly after he suffered his injury in 2017 and has continued to treat him. Her report outlined in considerable detail her treatment of Mr Patel and the various referrals made to other specialists.
78Dr Lim’s diagnosis was that Mr Patel was suffering from pain secondary to an L5-S1 disc prolapse with referred pain in his left leg. As of January 2023, Mr Patel was reporting ongoing aches and pains:[7]
“… including upper limb, back and legs. Numbness especially of all 4 limbs, worse on the left side. Feeling global weakness, and these symptoms fluctuate. He is only able to sleep 3-4 hours on a good night, before having to get up and move around. … .”
[7]PCB 230
79Dr Lim’s prognosis was that Mr Patel’s symptoms were likely chronic, given they had been ongoing for six years without resolution.
80Dr Lim noted that she had been certifying Mr Patel as unfit for suitable employment for some time. She said she would defer to an occupational physician on the issue of employment capacity in the future. She noted Mr Patel’s past willingness to try suitable work, but that his capacity to do so was limited by his symptoms. It was her opinion that any work trial would have to start at two hours, twice a week (that is, four hours a week).
Medico-legal reports
Dr Meena Mittal, pain physician and specialist anaesthetist
81Mr Patel tendered a report from Dr Mittal dated 14 December 2023. Dr Mittal examined Mr Patel on that date.
82Dr Mittal noted that Mr Patel reported persistent lower back pain, worse on the left. She described it as a dull ache with sharp exacerbations, and aggravated by repetitive bending, twisting and turning. Mr Patel reported difficulty with prolonged sitting, standing and walking. He also complained of left lower limb pain from the left side of his lower back to his left knee, and intermittent numbness in his left foot.
83On examination, Dr Mittal noted Mr Patel was wearing a lumbar brace, and had a slightly antalgic gait. She found a normal range of motion, with evidence of bilateral paravertebral muscle spasm and increased tenderness in the midline and the paravertebral spaces. There was a positive straight leg raise test on the left at 40 degrees.
84Dr Mittal’s impression was that Mr Patel was suffering from:
(a) Low-back pain secondary to lumbar spondylosis, which was a combination of myofascial spasm, underlying “facetogenic pain” and discogenic pain;
(b) Left lower limb pain “secondary to left S1 plus and minus L5 radicular pain”.
85In her view, there was “certainly” an organic basis for Mr Patel’s injury. She noted his symptoms were consistent with his history and investigation findings.
86Dr Mittal was of the view that Mr Patel’s prognosis was poor, considering his response to treatment to date. She opined that he was permanently unfit for suitable employment given his functional limitations, pain, poor sleep, and high reliance on analgesia affecting his concentration and memory.
Dr Eman Awad, occupational physician
87Mr Patel tendered a report from Dr Awad dated 9 January 2024. Dr Awad examined Mr Patel by Telehealth on that day. Dr Awad was provided with comprehensive medical material and surveillance reports dated 26 November 2018, 6 December 2021 and 14 September 2022.
88Mr Patel reported to Dr Awad that he suffered from constant lower back pain radiating from his lower back to his knee, with ongoing paraesthesia and numbness associated with intermittent stiffness. Pain disturbed his sleep. He struggled to sit, stand and walk for prolonged periods.
89Dr Awad diagnosed an L5-S1 disc protrusion and chronic pain. He opined that the prognosis was poor, given that extensive treatment had failed to address Mr Patel’s symptoms.
90Dr Awad was of the view that Mr Patel had no realistic capacity for suitable employment by reason of his lumbar spine condition.
91Dr Awad is the only occupational physician who has assessed Mr Patel’s work capacity.
Dr Graeme Brazenor, neurosurgeon
92Inghams tendered a report from Dr Brazenor dated 21 August 2018. Dr Brazenor examined Mr Patel that day.
93Dr Brazenor noted that Mr Patel “gave an entirely plausible account” of his symptoms.
94Dr Brazenor was of the view that Mr Patel “grievously injured his L5/S1 disc on 3 April 2017 during his duties at Inghams”. He noted that there was a large protrusion involving the whole of the left posterior quadrant of the L5-S1 disc. He thought there was a “9/10” chance the protrusion would heal, but Mr Patel would never be able to perform work involving repeated bending or vigorous pushing or pulling movements. Dr Brazenor opined that there was a one in ten chance that Mr Patel would require surgery for his lower back.
Dr Simon Journeaux, orthopaedic surgeon
95Inghams tendered a report from Dr Journeaux dated 18 June 2020. Dr Journeaux examined Mr Patel by Telehealth on 16 June 2020.
96Dr Journeaux opined that there was “clear evidence of constitutional degenerative disc disease of the lumbosacral spine affecting the L5/S1 level”. He thought there were both work and non-work-related components to Mr Patel’s presentation. His view was that the work-related component was about 50 per cent. He was of the view that a significant complicating factor was the superimposition of psychosocial factors.
97Dr Journeaux opined that Mr Patel had no capacity for suitable employment given the psychosocial factors influencing his presentation. His physical low-back injury did not preclude him from working in suitable employment.
Mr Francis Ghan, orthopaedic surgeon
98Inghams tendered five reports from Mr Ghan dated 31 August 2021, 19 October 2022, 26 April 2023, 31 October 2023, and 1 December 2023. Mr Ghan examined Mr Patel by Telehealth on 17 August 2021 (with the assistance of a physiotherapist), and in person on 11 October 2022, 12 April 2023 and 24 October 2023.
99In his first report, Mr Ghan noted that Mr Patel had a significant left L5-S1 disc prolapse demonstrated on imaging in 2017. He opined that it had resolved over time, and this was “confirmed by the MRI scan of 25 February 2021”.
100He noted there was functional overlay on examination, although he did not explain the basis for that opinion. Mr Ghan said that his examination “confirmed no evidence of radiculopathy, normal motor power, straight leg raising test of 80° bilaterally, negative Lasegue’s sign”.
101It is not clear from Mr Ghan’s first report whether he was provided with the imaging of the MRI scan of 25 February 2021 or only the report of the imaging.
102For his second report, Mr Ghan examined Mr Patel in person. He was not provided with any new imaging or reports of imaging.
103Mr Ghan again opined that Mr Patel had recovered from his L5-S1 disc prolapse, causing left-sided sciatica. He was of the view that there was no evidence of sciatica and no evidence of discogenic mechanical instability. He said that employment was no longer materially contributing to Mr Patel’s condition. He said that high doses of analgesics were hindering Mr Patel’s recovery and they should cease in favour of simple analgesics. He said Mr Patel did not require any other treatment and was fit to perform light labouring work.
104In April 2023, Mr Ghan re-examined Mr Patel for the purpose of his third report. He again noted that his examination “demonstrated no evidence of sciatica or any discogenic mechanical instability”. Based on his examination findings and the imaging reports provided, Mr Ghan was again of the view that Mr Patel’s low-back condition had resolved, and he was fit for his pre-injury employment on a full-time basis.
105There are two primary reasons why I am unable to accept Mr Ghan’s opinion that Mr Patel’s L5-S1 disc prolapse has resolved.
106First, Mr Ghan appears to be mistaken about the imaging findings.
107Mr Ghan noted the following about the investigations provided to him:
“MRI Scan (18 December 2017): Demonstrated a large left L5/S1 disc prolapse.
MRI Scan (25 February 2021): Reported the left L5/S1 disc prolapse has resolved.”[8]
[emphasis added]
[8]DCB 57
108The relevant reported findings of the MRI scan of Mr Patel’s lumbar spine on 25 February 2021 were:[9]
“L5/S1: Posterior disc protrusion extending to the left with small hyperintense posterior peripheral zone. Moderate left and mild right facet degeneration. Contact to the descending left S1 nerve root. Moderate left foraminal stenosis, non-neural compressive.”
[9]PCB 283
109That is, the reported findings of the MRI scan were of a continuing L5-S1 disc protrusion with contact upon the left S1 nerve root, not of a resolution of that disc prolapse.
110An MRI scan performed six months later, on 26 August 2021, was also reported to reveal an L5-S1 disc protrusion with contact on the left S1 nerve root.[10] That imaging was not provided to Mr Ghan at any time.
[10]PCB 286
111Second, Mr Ghan opined that, on examination, Mr Patel displayed significant non-organic factors “with a multitude of symptoms including aching in the left shoulder and neck, numbness in both hands, fingers and low libido”. Mr Ghan appears to have been unaware of Mr Patel’s diagnosed carpal tunnel condition and diagnosis of low libido as a medication side effect.
112At least two of the issues noted by Mr Ghan as supporting his opinion that there were “significant non-organic factors” do not provide a sound basis for concluding that Mr Patel’s symptoms are non-organic. My view is fortified by the fact that Mr Ghan noted that Mr Patel “presented in a straightforward manner”.
113Mr Ghan re-examined Mr Patel for the final time on 24 October 2023 for the purpose of his fourth report. He was not provided with any further imaging.
114Mr Patel reported to him that he continued to experience ongoing back pain which he rated at seven out of ten, radiating into his left buttock and to his left knee. He said that he had reduced his medications to Panadol and Nurofen for pain. He also took Cymbalta and clonidine and was on testosterone replacement therapy.
115Mr Ghan noted the following about his physical examination of Mr Patel:[11]
“… Mr Patel was observed to walk with no limp. His body posture was erect and normal. His general body and demeanour indicated no pain. There was significant functional overlay. He was not willing to move his lumbar spine much in any direction. Lumbar spine flexion was to about 40°. Extension 20°. There was no reversal of rhythm. He was able to get on and off the medical bed easily. He had excellent lumbar spine control. In the supine position straight leg raising was to 90° with negative Lasegue’s sign. Reflexes were equal and symmetrical. He had normal motor and sensory function in the lower limbs.”
[11] DCB 65
116In this report, Mr Ghan reached the same conclusions as previously. Again, having determined that there was “significant functional overlay”, and based on his view that the MRI scan revealed that the disc prolapse had resolved, Mr Ghan continued to be of the view that Mr Patel had recovered from his work-related low-back injury.
117I do not accept Mr Ghan’s opinion. Mr Ghan does not sufficiently explain the basis for his opinion that Mr Patel demonstrated significant functional overlay. Mr Ghan does not state that he had viewed the actual images of the MRI scan undertaken in February 2021. He does not explain why his characterisation of the results of that imaging is different to the reported findings. He relies on the resolution of the L5-S1 disc prolapse on imaging to support his opinions about Mr Patel’s presentation, and ultimately to support his diagnosis.
Conclusion
118I prefer the opinions of the treating medical practitioners, and Dr Mittal and Dr Awad. Based on those opinions, I find that Mr Patel suffers from low-back pain and left leg pain due to a continuing L5-S1 disc protrusion which continues to contact the S1 nerve root.
119I find that because of that disc protrusion, Mr Patel:
(a) suffers from constant but variable low-back pain and a restricted range of motion. He also experiences left leg pain and weakness. He requires daily analgesia for his pain, including CBD oil, gabapentin, Panadol, and Nurofen;
(b) struggles with prolonged walking, sitting and standing. He is restricted in his ability to push, pull, lift and bend;
(c) suffers from disturbed sleep;
(d) experiences constipation and loss of libido by reason of the medication he has taken for his back pain;
(e) struggles with household chores;
(f) has been restricted in his capacity to care for his son, socialise, and participate in the community;
(g) continues to require regular hydrotherapy.
120I find that those impairment consequences are likely to last for the foreseeable future.
Is Mr Patel permanently unable to earn at least 60 per cent of his “without injury” income because of the impairment consequences of the compensable lumbar spine injury?
121For Mr Patel to succeed in his claim for the loss of earning capacity consequence, he must establish:
(a) his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable” (the narrative test);
(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and
(c) after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
122I will first consider the second and third of those issues.
123Inghams submitted, and Mr Mighell did not challenge, that:
(a) the 60 per cent figure was $31,274 gross per annum or $601 gross per week;
(b) the plaintiff has the aptitude to undertake suitable employment as a customer service assistant, data entry operator, stock clerk and warehouse administrator;
(c) those roles are available in the plaintiff’s area; and
(d) if the plaintiff could work as a customer service assistant for 22 hours a week, as a data entry operator for 25 hours a week, or as a stock clerk or warehouse administrator for 18.5 hours a week, he would not satisfy the statutory formula.[12]
[12]Defendant’s statement of calculations dated 28 February 2024
124I am required to take a “real world” approach to the plaintiff’s employment capacity. It requires more than a physical capacity to engage in a task or tasks.[13]
[13]Richter v Driscoll (2016) 51 VR 95
125Mr Patel had a solid work history prior to his injury.
126He persevered in his employment with Inghams after his injury, performing modified duties on reduced hours for about two-and-a-half years until he was unable to continue because of his low-back injury.
127I accept Mr Patel’s evidence that he wants to and would work if he could. Additionally, there is a financial imperative for him to work and earn to support his family.
128He has not worked in any capacity since September 2019. That is, for four-and-a-half years.
129Mr Patel’s general practitioner, Dr Selina Lim, continues to certify him as unfit for suitable employment.
130I am particularly assisted by the evidence of Dr Awad on this issue, given his expertise as an occupational physician.
131For the reasons outlined above, I prefer the evidence of Dr Awad, Dr Mittal and Dr Lim regarding Mr Patel’s low-back injury and functional limits. Each of them was of the view that Mr Patel does not presently have a realistic work capacity by reason of his low-back injury, and that incapacity is likely to continue into the foreseeable future.
132I am satisfied that Mr Patel is unable to earn at least $601 gross per week in suitable employment, and that is likely to continue into the foreseeable future.
Is the loss of earning capacity consequence of Mr Patel’s compensable lumbar spine injury “serious”?
133I find that the loss of capacity to undertake any suitable employment now and into the foreseeable future is a consequence that can be “fairly described as being more than significant or marked, and as being at least very considerable”. Mr Patel therefore satisfies the narrative test.
Conclusion
134Given that I have found that Mr Patel has satisfied the statutory threshold to claim loss of earning capacity damages with respect to his lumbar spine injury, he is also entitled to claim pain and suffering damages with respect to that injury.[14]
[14]Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
135Further, as Mr Patel has been granted leave to issue proceedings claiming common law damages for his lumbar spine condition, it is unnecessary to consider the claim with respect to his psychological condition.[15]
[15]Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232 at paragraphs [3] and [36]
136Mr Patel has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
137I will hear the parties on the issue of costs.
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