Refika Serifovska v Corrigans Produce Farms

[2015] VMC 36

IN THE MAGISTRATES’ COURT OF VICTORIA  

AT MELBOURNE

WORKCOVER DIVISION   NO E111047776

BETWEEN:

REFIKA SERIFOVSKA  Plaintiff

-and-

CORRIGANS PRODUCE FARMS  Defendant

MAGISTRATE:   GINNANE

WHERE HEARD:   MELBOURNE

WHEN HEARD:  20 & 21 AUGUST 2015

DATE OF DECISION:  25 NOVEMBER 2015

CASE MAY BE CITED AS:                REFIKA SERIFOVSKA v CORRIGANS PRODUCE FARMS

MEDIUM NEUTRAL CITATION:         [2015] VMC 036

Catchwords: Accident Compensation Act 1985 – plaintiff suffered work injury – receipt of weekly payments and medical and like expenses – termination of payments and benefits – plaintiff returned to work twice – defendant alleged plaintiff had failed to make ‘reasonable efforts’ to return to work in accordance with s 203(1) of the Act –reliance by plaintiff on general practitioner’s certificate of capacity – opinion of treating doctor genuinely held – no evidence treating doctor misled

REASONS FOR DECISION

APPEARANCES  Counsel  Solicitors

For the Plaintiff   Mr L Allan   Ryan Carlisle Thomas

For the Defendant   Mr E Makowski   Russell Kennedy

HIS HONOUR:

Introduction and overview and issues

1.The plaintiff seeks to review the decision of the defendant’s authorised agent given by written notice dated 15 February 2013 to terminate her receipt of weekly payments and benefits under the Accident Compensation Act (1985) (‘the Act’).

2.The defendant by its Amended Notice of Defence dated 13 August 2014 pleads that whereas it admits the plaintiff suffered compensable left leg and lower back injuries arising out of or in the course of her employment in about June 2012, her incapacity arising from the same, was limited to the period 17 July 2012 to 30 November 2012, and not thereafter. Furthermore, it pleads that the plaintiff did not make reasonable efforts to actively participate and cooperate in planning for her return to work as required by law under the Act.

3.I was urged by counsel for the defendant, Mr Makowski to not trespass onto the question of the plaintiff’s current capacity as the contest before me was, first and foremost, the issue of the plaintiff’s reasonable efforts to return to work. Counsel’s submission was made as a result of Mr Allan, counsel for the plaintiff, submitting in final address that the defendant had led no evidence to disturb the plaintiff’s evidence that she was not capable of performing her pre-injury duties and that such situation was of indeterminate duration. At the conclusion of the hearing I told counsel that I would deal with the matter of the plaintiff’s reasonable efforts to return to work and, in the event I concluded favourably to her on that issue, then I would go no further and adjourn the matter over to a future date. Counsel did not cavil with this roadmap.

The plaintiff’s evidence

4.The plaintiff was born on 3 January 1960 in Macedonia. She worked as a farmhand. She arrived in Australia on 1 January 2007. She commenced employment with the defendant in January 2008. The defendant is a commercial vegetable producer. In the course of her employment with the defendant the plaintiff undertook various farm related jobs such as planting and packing vegetables. Her husband and daughter were also employed by the defendant.

5.The plaintiff said that on 20 June 2012 she was involved in carrying out her ordinary duties and was planting leeks when she experienced pain. She continued to work for some two hours. She was however forced to stop work approximately two days later. She said for about two months afterward she ‘could not really move at all’[1].

[1] Oral evidence of plaintiff.

6.On 3 July 2012 she saw Dr White, a general practitioner conducting his practice from the Dandenong City Clinic. He diagnosed back strain. He prescribed Tramadol and gave the plaintiff a WorkCover certificate of capacity declaring her unfit for any duties for the period 3 July 2012 to 10 July 2012[2].

[2] The numerous certificates of capacity were received into evidence as Exhibit P8

7.The plaintiff was x-rayed on 3 July 2012.  Dr White saw her again on 5 July 2012. She complained of pain radiating down her left leg. Dr White’s note of clinical record is that the plaintiff was ‘distressed with the pain today despite taking medications’[3]. The X-ray of the plaintiff’s lumbar spine showed minor anterolateral osteophytes in the lower lumbar spine, mild narrowing of the L 5/S1 disc space and minor facet joint degenerative change at L 5/S1[4].

[3] Clinical record comprising notes of Dr White were received into evidence as Exhibit D3

[4] Report of x ray

8.A CT scan was performed. Dr White reported that the CT scan of the lumbar spine revealed disc bulges at L5/S1 and L4/L5 and L3/L4 together with multilevel facet joint degenerative changes.

9.The plaintiff again attended on Dr White on 10 July 2012 and was furnished with a certificate of capacity declaring her unfit for duties for the period 10 July 2012 to 24 July 2012.

10.A workers injury claim form was completed by the plaintiff on 15 July 2012. The injury was described as ‘bulged disc in spine (lower back)’, affecting ‘left leg lower back’. The circumstances of injury were described as occurring ‘after planting while getting off tractor’.

11.The plaintiff’s claim was accepted by the authority and weekly payments of compensation commenced to be paid to the plaintiff from 29 June 2012.

12.Dr White saw the plaintiff on 24 July 2012 and certified her unfit for the period 24 July 2012 to 7 August 2012. His certificate made reference to ‘bulging discs seen on CT scan’.

13.It was at about this stage that steps were taken by the employer to facilitate the plaintiff returning to work. The plaintiff said Dr White had also suggested to her that she should try returning to work.

14.Dr White saw the plaintiff on 7 August 2012 and he issued her with a certificate of capacity declaring her fit for modified duties from 22 August 2012 to 5 September 2012 with restrictions of ‘no repetitive bending or lifting, no lifting anything heavier than 5 kg’.

15.On 4 September 2012 the plaintiff was again seen by Dr White who continued to certify her fit for modified duties from 5 September 2012 to 19 September 2012 and with the same restrictions as previously noted.

16.A return to work plan (RTW) dated 5 September 2012 with an offer of suitable employment prepared by the employer was endorsed by Dr White as suitable to be undertaken by the plaintiff. The plaintiff was scheduled to return to work on 10 September 2012.

17.The plaintiff was shown a copy of the RTW plan prepared by the employer and approved by Dr White. She said her son read it to her. She acknowledged her signature on the plan. The plan amounted to 8 hours per week consisting of 2 shifts of 4 hours each on alternate days. She said that as best she could recall she returned to work in accordance with the plan for possibly 8 or 10 days. She said, “I don’t really remember”. In fact, the plaintiff worked on Monday 10 September 2012 and Tuesday 11 September 2012 commencing at 6.30 am and concluding at 2.30 pm both days. The plaintiff testified about the modified duties she undertook over the period of the return. They were very limited and consisted of washing and peeling green onions and discarding the skin. The plaintiff said she worked in the ‘leek and onion shed’ where she washed and graded leeks and onions. She said she was involved working a single task of “taking green onions from a tank of water in which they bobbed about and removing and then discarding the peel”. She said a range of movements were required. She said her back hurt and it was necessary for her to constantly move back and forth in performing the duties. The plaintiff said that after just 2 days of these duties she was unable to return to work because of pain.

18.She agreed that thereafter she was away from work for a period of about two months and remained under the care of Dr White. The plaintiff saw Dr White again on 12 September 2015. She complained of experiencing cramping pain in her left calf at night and that ‘work was exacerbating the pain’. She was advised not to return to work. Dr White certified the plaintiff unfit for any duties for the period 12 September 2012 to 26 September 2012.

19.The plaintiff was seen by Dr White on 26 September 2012. He provided her with a further certificate of capacity declaring her unfit for any duties for the period 26 September 2012 to 24 October 2012. He recorded that she ‘still has pain over the posterior aspect of left calf and numbness over the left foot and left calf’.

20.On 11 October 2012 the plaintiff attended Mr Roth for an independent medical examination. Mr Roth is a consultant surgeon at the request of the defendant’s insurer. She was accompanied by an Albanian interpreter. At the time of examination the plaintiff was receiving physiotherapy twice a week and was taking Tramel, Mobic and Lyrica. She complained of lower back pain with pain in the left thigh, left calf and all the toes of the left foot. Her left thigh, leg and all the toes of the left foot were numb. She reported that her pain is aggravated by standing and walking and she was unable to sleep properly because of pain. She was not able to squat. The movements of the lumbosacral spine were restricted to approximately half the normal range of movement. She was able to sit to a right angle with her knees fully extended without obvious difficulty or discomfort. Her movements of the left hip were possible to approximately three quarters of the normal range of movement although movements were said to be associated with back pain. No neurological abnormality of any significance was detected by Mr Roth. There was no evidence of motor, sensory or reflex deficit detected. At the date of his first report Mr Roth noted that the results of imaging were not available to him. He regarded the injury the plaintiff suffered related to the nature of the work she had performed with her employer and he did not think she was fit to resume preinjury duties and hours. He did think however that she had a current work capacity. He believed that she would be fit to resume working by performing modified pre-injury duties and hours. He believed she should be fit to work performing work which did not require heavy lifting, repeated stooping and prolonged sitting or standing in a particular position without a change of posture. His opinion was that there is ‘a significant non-organic component to her presentation and this is, I believe, affecting her recovery including return to work’. He believed that her partial incapacity for employment was still materially contributed to by an injury arising out of or in the course of her employment. He opined that a graduated return to work would need to be instituted involving work which does not require lifting weights in excess of 5 kg, repeated stooping or prolonged sitting or standing in a particular position without a change of posture.

21.Mr Roth provided a supplementary report dated 6 November 2012 to the defendant’s insurer. By this stage he had been provided with the RTW of 25 October 2012 (a RTW plan that post-dated the conclusion of the plaintiff’s employment). He thought that the plan was entirely reasonable and appropriate for the injuries the plaintiff sustained and he regarded her as able to perform the suitable duties.

22.The 25 October 2012 RTW plan presented by the employer proposed a return to modified duties to commence on 31 October 2012 for 4 hours per day, 2 days per week with this increasing to 38 hours by 23 November 2012.

23.The plaintiff attended on Dr White on 29 October 2012 and the RTW was discussed and Dr White issued a certificate of capacity declaring the plaintiff fit for the alternative duties from 29 October 2012 to 20 November 2012.

24.The plaintiff made a second effort to return to work on or about 5 November 2012. The plaintiff said she was again involved in the task of peeling green onions and this required movements of the same type that she had complained to Dr White had brought on the pain when undertaking duties pursuant to the first RTW. The plaintiff said, ‘I was having a lot of pain’. The plaintiff said that Dr White told her not to return to work and she said, ‘I take his advice very seriously’.

25.In the course of her evidence in chief the plaintiff described her current pain. She said it commences at the back of the left leg and radiates down her leg. She said she has pins and needles and numbness in both legs. She said that her present condition is ‘slightly better’ than in the past because she now can stand whereas previously she was confined to lying down.

26.In cross examination the plaintiff was directed to a number of matters including the suite of work that she had performed in the years prior to the accident of 2012. She said that the work had been heavy although she had been ‘fine’ and capable of performing it. Questions were asked of the plaintiff about the circumstances of the accident but they have no relevance to the matter I am called upon to decide.

27.The plaintiff was directed to a record made by Dr White of his consultation with her on 10 July 2012, approximately two weeks after the accident, in which he noted that her ‘pain is improving and she still encountered difficulties with walking’. The plaintiff said that in the first two months after the accident she experienced pain to such an extent that she could only lie down. Dr White’s clinical records identify that on 24 July 2012 the plaintiff reported that her condition was improving but that she was still in pain.

28.By August 2012 the plaintiff was undertaking physiotherapy and, according to Dr White’s record, it was helpful but ‘only slightly’. In August 2012 Dr White also reported the plaintiff as exhibiting a full range of movement but that she was ‘still experiencing pain when flexing to the right’.

29.The plaintiff experienced language difficulties in her dealings with Dr White and she said that on occasions she would attend on him in the company of either her son or her cousin who would interpret for her.

30.The plaintiff was cross-examined in some detail about the suggested variations in the level and range of activities provided pursuant to the first RTW plan. Largely speaking I am satisfied that the work the plaintiff was provided accorded with her description and I am also satisfied and accept the substance of her evidence that in performing the activities she experienced ‘a lot of pain from twisting and turning’. She further said ‘I could not stand for too long’. I also accept that the defendant did not impose any strictures on the manner in which the plaintiff performed her duties or the extent to which she could rest if needed.

31.Despite having experienced pain for two days in September 2012 the plaintiff returned to work pursuant to the subsequent RTW plan.

32.On 2 November 2012 the plaintiff met with her employer in regard to her duties. The plaintiff agreed that she told her employer that she was happy to stand or sit whilst peeling onions and she thought it was work she could do at her own pace.

33.The plaintiff last worked on 14 November 2012.

34.The plaintiff saw Dr White accompanied by her son on 15 November 2012. She said her son told Dr White that she could neither stand nor walk.

35.The plaintiff said her back pain did not improve much at all after stopping work in November 2012. The plaintiff has had pain management. None of the medications prescribed such as Indep and Lyrica have noticeably assisted her with pain and she said that Lyrica had made matters worse. She is not presently undertaking physiotherapy.

36.The plaintiff was asked about another return to work plan prepared by her employer in December 2012 and it when it was suggested to her that she could have coped performing the duties contemplated by it, she said she could not. When asked why she did not try to return to work for a third time, she said she was ‘quite sick’ and also that Dr White was adamant that she could not return to work.

37.Dr White referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon for assessment and management of her lumbar spine condition. Mr Wilde saw the plaintiff on 21 December 2012 and 22 January 2013. He furnished two reports dated 13 March 2013 and 12 July 2013. On the occasion of the plaintiff’s first attendance on Mr Wilde he reported her having said that her pain ‘was not improving’. She did note however that she had been attending physiotherapy twice per week and that this ‘helped a little’. Mr Wilde categorised the plaintiff’s symptoms as ‘significant lumbar pain and pain into her left leg to her calf and foot’. He reported that she had sustained ‘a disc prolapse on the left at L5/S1’. He reported that she does not have the capacity to perform her preinjury duties and ‘this incapacity is likely to continue in the foreseeable future’. He did however report that she could perform ‘suitable duties such as light farm tasks or office work on a part-time basis’. He noted that he had not received a return to work plan at the date of the provision of his report, something that was remedied by the time of his report dated 12 July 2013. He noted the plan was one prepared in consultation with Dr White and had provided for a graduated increase of hours over a month commencing with 8 hours in the first week; 20 hours in the second week, 27.5 hours in the third week and 38 hours the fourth week. He noted that the plaintiff was to be located in the leak/onion shed, standing or sitting, involved in the washing and grading of leaks and onions. The duties task did not involve lifting more than 500 half kilogram weights and there was no bending involved. In addition the plaintiff was allowed to move around at her own pace and do the work as her back would tolerate. He noted that this was the plaintiff’s preferred job as ‘she could move around the work area and work at your own pace’. Dr Wilde also noted the second return to work plan of December 2012 had been included for his consideration. He referred to the terms of that return to work as well as the details contained in the further plan dated 29 January 2013. He said ‘I am not sure why Ms Serifovska was unable to attempt these return to work plans, although it is possible that her local doctor was not prepared to clear her for return to work on the basis of her stated symptoms’.

38.Mr Wilde noted the plaintiff’s medication comprised Panadol and Tramadol. A questionnaire administered to the plaintiff produced an assessment of spinal function and activities of daily living in terms of pain intensity encountered as ‘severe but painkillers gave moderate relief’. Dr Wilde noted as well that she could ‘lift heavy weights, from the bench at a convenient height. She could walk up to quarter of a kilometre, sit for half an hour, and stand for half an hour’. Physical examination suggested the plaintiff’s spinal posture was ‘reasonable’. Mr Wilde noted that ‘lumbar spinal movements were diminished’. He noted as well, that ‘Neurological examination of the lower limbs revealed a positive left straight leg-raising test at 45° but no objective focal neurological features in the lower limbs. There was no sensory change, no reflex changes and I was not able to detect any muscle wasting or weaknesses’. On the occasion of his second consultation with the plaintiff on 22 January 2013 Mr Wilde had to hand the MRI scan undertaken of the plaintiff which he believed ‘demonstrated a disc bulge at L4/5 with an annular tear. There was no neural compression at this level. At the lumbar sacral level there was a small prolapse on the left, displacing and irritating the left S1 nerve root’. As part of the plaintiff’s regime of pain management she had an epidural injection performed under CT guidance but it also apparently provided little by way of relief and indeed the plaintiff said she felt worse as a result.

39.Mr Wilde diagnosed a disc prolapse on the left that L5/S1. In his report to the plaintiff’s solicitors dated 13 March 2013, he expressed the opinion that the plaintiff ‘does not have the capacity to perform her pre-injury duties and this capacity is likely to continue in the foreseeable future’. He did think however, and expressed the opinion, that the plaintiff ‘could perform suitable duties such as light farm tasks or office work on a part-time basis’. He was asked his opinion of the return to work plan and offer of suitable employment for the period 2 November 2012 to 31 December 2012 but stated that as he had not received a return to work plan he could not comment on the matter.

Evidence of Dr White

40.Dr White is a general practitioner undertaking his practice in Dandenong and has been in practice since 1982. In his evidence in chief he was directed to a copy of his clinical notes. An entry dated 6 September 2012 relates to the first return to work plan. He said he discussed the plan with the plaintiff. He regarded the offer and the plan as suitable subject to the plaintiff being able to undertake rests as required.

41.He agreed that his certificate of capacity dated 4 September 2012 recorded the plaintiff as fit for modified duties but not involving repetitive bending or lifting.

42.He was directed to his entry of clinical record dated 12 September 2012 and his certificate of capacity that the plaintiff was unfit for any duties. The plaintiff had failed the return to work plan and he said he ‘would have’ advised the plaintiff not to return to work and so corroborates the plaintiff’s evidence.

43.Dr White was referred to his entry dated 4 November 2012. Dr White told the plaintiff that if she wanted a certificate certifying her totally unfit for duties the she would need to pursue such a request through a different doctor.

44.Nonetheless Dr White said that he believed that that there was radiological evidence of a significant injury to the plaintiff. He said that he continues to certify her as unfit for all duties. He said she requires analgesics and rest and described her as suffering from ‘unremitting pain’.

45.Dr White was cross-examined. He said that initially he believed the plaintiff suffered a back strain injury but his opinion altered such as to regard her condition as more serious.

46.He was directed to his two reports dated 20 March 2013 and 21 July 2014. He conceded in cross-examination that he was ‘somewhat surprised’ that the medication that the plaintiff was taking had not assisted her. It was suggested to him that the plaintiffs evidence that the epidural had made her worse was surprising but he said he could not ‘comfortably answer that’. I note that the absence of significant remedial effect from medication has been a constant feature of the plaintiff’s presentation.

47.There was much attention directed at Dr White’s clinical note of entry dated 4 November 2012 mentioned previously. It was suggested to him that the plaintiff had wanted a full certificate and he was not prepared to provide one because he came to the opinion that she could cope with the duties contained in the RTW. Dr White said he did not believe the plaintiff was making a reasonable attempt to continue with a RTW plan at that stage and he came to that view as a result of the responses he was obtaining to questions he asked of the plaintiff’s son that were non-responsive. In Dr White’s words, ‘the problem was the history was given to me by the son that she could really could not do anything. I was not getting serious responses and that was upsetting me’. Dr White’s full clinical note for the consultation on 4 November 2012 reads:

Sunday November 4 2012 12:55

Dr Glenton R white

Son says that she is unable to work “can’t walk, can’t stand up”

She prefers to sit in soft lounge area and waiting room apparently there are logistic transport problems involving other family members

Examination:

Flexion to 80 degree, extension full range

Actions:

Prescription added: PANADOL OSTEO TABLET 665mg 2 q.6.h.

Prescriptions printed: PANADOL OSTEO TABLET 665mg 2 q.6.h.

I am not prepared to keep writing certificates for total incapacity

She will need to see another doctor it (sic) these are required

48.Dr White said there is ‘plenty of evidence to suggest that the plaintiff had significant injury’. He said in response to questions in cross-examination that the plaintiff did not ask for a full certificate and in any event, ‘she would not dictate to me’. Having listened carefully to Dr White, and the opinions he expressed as to the value he placed in advice from the plaintiff’s physiotherapist, I have no doubt about his evidence of that fact.

49.Mr Makowski directed Dr White to the Offer of Suitable employment signed by him as acceptable on 14 November 2012 despite the plaintiff’s presentation to him with pain on examination on 4 November 2012.

50.Dr White was asked to consider the opinion he expressed about the plaintiff on 15 November 2012 as a result of examination and that resulted in him certifying her unfit. Dr White’s clinical note of the plaintiff on examination on 15 November reads:

‘Thursday, November 15, 2012 11:31:13

Dr Glenton R White

She says that she is not coping with her light duties at work

Now pain radiating down the back of the left leg and it occurs more severely in the back when she stands for long periods/Discussion with physiotherapist-

patient not coping with light duties Examination:

Left straight leg raising 15degrees, right 30degrees, all reflexes normal,

dorsifelexion normal strength, sensation lower over L4, five dist. on left

sitting in hard backed chair and waiting room, limping

Actions:

Letter created-re. referral letter to MR PETER WILDE

Letter created’.

51.Dr White explained the difference in the plaintiff’s presentation. He said that from the supine position the plaintiff had limitation on leg raising. He accepted, however, that such a presentation can be accounted for by a lack of effort on the part of a patient. Also Dr White said that he had observed the plaintiff had been sitting in a hard back chair in his waiting room, a fact he regarded as objectively observable indicia of her suffering back pain. When it was pointed out to him that his notes of a subsequent consultation on 21 November 2012 recorded that the plaintiff was seated in lounge chair and not a hard backed chair, he said this might be explained on the basis that ‘some days are good days and some days not so good’.

52.There is no escaping the fact that there is an obvious discordance in the opinion expressed by Dr White on 4 November 2012 and 15 November 2012, and when I asked him why, he said:

‘Nothing in particular but as I thought about it after 4 November 2012 and the way she presented and results of scans that had been to hand and that she was limping and had a significant injury requiring strong analgesics. I thought I was a bit harsh’.

53.Despite ruminating over the opinion he expressed on 4 November 2012, and on reflection having concluded that his judgment ‘harsh,’ Dr White still regarded the plaintiff as suitable to attempt a return to work under on 14 November 2012 when he signed a RTW and it was not until the following day after another consultation with the plaintiff that he certified her unfit for any duties.

54.Dr White’s opinion about the plaintiff’s incapacity to effect a further return to work did not however alter after 15 November 2012. For example, on 26 November 2012 although Dr White agreed there had been an improvement in the plaintiff, when asked if he would have been satisfied certifying her for a return to work at that time, he said ‘not necessarily’. When asked whether he thought the plaintiff should have tried a further return in about late January 2013 pursuant to a further offer made by the employer Dr White said he did not believe so based on his assessments. When interrogated about his reasoning Dr White said, ‘I obviously had my reasons.’

55.Dr White was questioned about the contents of Mr Wilde’s report dated 13 March 2013 and his examination of the plaintiff on 21 December 2012 and his finding that there was no objective neurological features in lower limbs or evidence of neurological impingement and no sensory or reflex changes and no wasting.  Dr White was also asked about the MRI result that that had showed a disc prolapse and minor disc bulge, something he viewed as not unusual in a person in the plaintiff’s age group. Dr White said he would defer to Mr Wilde’s expertise in interpreting the results of an MRI.

56.Dr Daniel Lee is a consultant physician in rehabilitation and pain management. The plaintiff was referred to Dr Lee for independent examination. Dr Lee saw the plaintiff on three occasions.  He prepared two reports dated 11 September 2014 and 19 February 2015[5]. He kept Dr White apprised of the plaintiff’s pain management. He thought that the plaintiff suffered from non-specific back and leg referred pain. He thought her neurological results to be normal.

[5] Exhibit P7

57.Dr White said there were occasions on examination of the plaintiff that she exhibited weakness. He was directed to that part of Dr Lee’s report that the plaintiff’s pain lasted longer than the objective evidence would suggest. Dr White said, ‘I agree’.

58.Dr White said the CT scan from July 2012 was ‘demonstrable evidence of disc disease’ and that her presentation to me was consistent with the scan yet on 4 November 2012 he had not thought her presentation warranted a further certificate as unfit for all duties.  It was suggested to Dr White that he thought the plaintiff could attempt a return to work on 4 November and nothing changed from then on but Dr White said, ‘I thought there was an exacerbation of her pain’.

59.In re-examination Dr White was asked about his imposed restrictions and various movements of the body. He said that in his view flexion would exacerbate the plaintiff’s pain. He said:

‘I can’t say if repetitive bending or leaning would cause exacerbation. Flexing and extension is different because of it extending the thecal sac and the impingement causes pain’.[6]

[6] Oral evidence of Dr White

60.Dr White said that a harbinger to pain would include action that required a reaching away from the body to perform the modified duties.

61.The defendant interposed the Managing Director of the defendant, Ms Deborah Corrigan. Ms Corrigan testified that she was involved in the plaintiff’s RTW. She said she had responsibility for ‘creating work opportunities and modifying her duties – basically working with her’[7]. The duties offered by the employer to the plaintiff consisted of her choosing to work on either the coz lettuce or onion line and that the plaintiff elected to work on the onion line.

[7] Evidence in Chief of Ms Corrigan

62.Ms Corrigan wrote to Dr White on 8 October 2012 in order to work with him to get the plaintiff back to work.[8] She said as well that she prepared the 25 October 2012 RTW and sent a copy to Dr White for his approval which was forthcoming. Ms Corrigan said that she monitored the plaintiff under the second RTW. On 2 November 2012 Ms Corrigan met with the plaintiff and foreman and an interpreter. Ms Corrigan said that the plaintiff requested to amend her start time and she was was happy to accommodate the request. Ms Corrigan wrote to Dr White advising him of the change of starting time.[9]

[8] Exhibit D5

[9] Exhibit D6

63.The plaintiff worked part of the RTW plan that included the change of times[10]. In December 2012 Ms Corrigan wrote to Dr White with a further RTW plan[11]. Another RTW plan dated 17 January 2013 was prepared[12]. When asked why she continued to produce RTW plans when the plaintiff was not attending work, she said in order to meet the employer’s obligations to accommodate a return to work by the plaintiff. Ms Corrigan acknowledged further RTW plans including one dated 29 January 2013[13].

[10] Exhibit D7

[11] Exhibit D8

[12] Exhibit D9

[13] Exhibit D10

64.Ms Corrigan was cross-examined about the mechanics and operation of the onion tank. She explained that the onions come into tank via a conveyor. Ms Corrigan said that this was the line the plaintiff chose having told her that ‘it was the best for her[14]’. Ms Corrigan said that the onions bob on the water and the tank is about 3 metres wide and waist height. Ms Corrigan agreed that the shorter a person is the greater the reach ‘but there is no need to reach[15]’. The onions are replenished. Ms Corrigan said that she was involved in all the RTW plans and they complied with the plaintiff’s prevailing medical restrictions. There was no change in the duties identified in the RTW plans from September 2012 to January 2013.

[14] Oral evidence of Ms Corrigan

[15] Evidence of Ms Corrigan under cross-examination

65.I have no criticism directed at the employer at all. In my opinion, it behaved in a proper fashion at all times in its dealings with the plaintiff. The plaintiff’s failures to comply with ongoing return to work was not the fault of the employer.

Legal Contentions

66.The defendant’s case consisted of a tender of documents in addition to the evidence of the Ms Corrigan. Mr Makowski made a series of submissions on fact and law. I summarise them.

·The defendant suffered a compensable injury in respect of which she was paid weekly payments and medical and like expenses.  Thus the defendant has cooperated with its obligations under the Act. However, the defendant submitted that the plaintiff has not made a reasonable attempt to return to work. Mr Makowski submitted that the matter is peculiar in that the plaintiff’s pain is not explicable and has not responded to treatment whether by way of analgesics or the epidural and that physiotherapy has only provided intermittent and fleeting respite from pain. He contended that it whilst it is understandable that Dr White was frustrated by the lack of progress in his treatment of the plaintiff, the provision of a certificate on 15 November 2012 is not evidence that speaks for itself when it is understood in the context of the Dr White’s evidence.

·The evidence given by the by the plaintiff in the course of the hearing was odd and exemplified by the meeting with the employer of 2 November 2012 and her response to questions asked of her about starting times to which ‘she refused to give a straight answer’.

·Dr White’s evidence ought not to be accepted and acted on. On 4 November 2012 he thought the plaintiff was fit for a RTW for light duties.

·The plaintiff returned for 2 days in September 2012 and she returned to work 2 shifts of 4 hours each and subsequently did not return. This amounted to a very brief effort at a return to work.

·Despite Dr White testifying that he had ruminated about the position he had adopted on 4 November 2012 and his conclusion that he had been ‘harsh’, nonetheless on 14 November 2012 he still regarded the plaintiff as fit for RTW and that his explanation for his change of opinion on 15 November 2012 is inexplicable.

·As to the question of the plaintiff’s recourse to a reasonable reliance on her medical practitioner’s advice, Mr Makowski submitted that the case cannot be determined based on an inquiry into Dr White’s opinion. The defendant was not genuine and she misled Dr White. Other practitioners did not share Dr White’s opinion and the Court should be satisfied that there was no basis clinically or otherwise to support the change of opinion by Dr White on 15 November 2012.

·Mr Makowski referred to the reports of Dr Lee dated 11 September 2014 and 19 February 2015 in which he reported that the plaintiff described ‘non-specific back and referred leg pain’, and later, ‘Her pain has persisted longer than expected. The MRI was not impressive’. He also referred to a report by Dr Dan Bates of Metro Pain Clinics dated 1 November 2013[16] in which the author referred to two consultations with the plaintiff on 3 July and 29 August 2013 and after detailing the plaintiff’s history including her pain management to the date of his report rendered a diagnosis of chronic pain ‘with somatic and neuropathic features and with a significant psychosocial overlay’.

[16] Exhibit P6

67.The fact that the opinion expressed by Dr White is not shared by others is a relevant matter to which I have given consideration but I am not satisfied that it determines the outcome in a case such as this where the plaintiff’s reasonable efforts need to be assessed against the expressed opinion of a treating general practitioner. I accept Dr White genuinely formed the opinion of the plaintiff’s condition contained in his certificate dated 15 November 2012. His opinion is not rendered at nought in relation to the question at hand because the opinions of others are expressed otherwise. I also do not accept that the plaintiff misled Dr White or gave false or misleading accounts of her condition to any of those to whom she was sent to be assessed. Indeed, Dr White was asked in re-examination if he ‘formed the view that the plaintiff was having you on’ to which he responded, ‘No I did not.’ I am satisfied there was a material change in that the plaintiff returned to Dr White on 15 November 2012 after having worked and telling him that she could not cope.

68.Mr Makowski said the plaintiff’s son was not a called although a Jones v Dunkel[17] submission was not made by the defendant.

[17] Jones v Dunkel (1959) 101 CLR 298

The plaintiff’s submissions

69.Mr Allan on behalf of the plaintiff made the following submissions which I summarise as follows:

·The defendant’s notices all issued after 15 November 2012 when Dr White had advised the plaintiff not to RTW and had certified her accordingly as unfit. From this point on the plaintiff was entitled to rely on his advice. Dr White advised her not to return and she testified as having placed reliance on her practitioner.

·Whatever view Dr White held at some earlier stage, he expressed his clinical opinion of the plaintiff’s condition at 15 November 2012 and in his evidence thereafter and unless the Court was satisfied that his opinion was not genuinely held then the reliability and force of his certificates should not be interfered with.  

·The language under consideration in s 203 (1) of the Act is that ‘a worker who has an incapacity for work must ….make reasonable efforts to return to work in suitable employment or pre –injury employment …’ and is different from the wording as it previously stood which required a worker make ‘every reasonable effort’. Mr Allan submitted that the change in language was that a worker’s obligations were less stringent. It is unnecessary for me to express any view about this submission in order to arrive at the conclusion I have.

The Law

70.The onus of proof resides with the employer to prove that the plaintiff did not fulfil her duty.[18]. The question to be answered is whether, in all the circumstances, the plaintiff failed to make ‘reasonable efforts’ to return to work on suitable employment contrary to s 203 (1) of the Act.

[18] Cox v TCC C Crt decision No 4837 of 2000 and 3312 of 2000

71.Section 203 (1) of the Act provides that a worker must make ‘reasonable efforts’ to return to work. Section 203 (2) lists situations where the worker is considered to be making a ‘reasonable effort’ in s 203 (3) provides that a worker must not be treated as making a reasonable effort to return to work on suitable employment where he/she fails to meet his/her obligations under Division 3 of the Act.

72.In T & G Industries v Randjelovic [2006] VSC 316 Justice Osborn said:

The statute is concerned with the objective reasonableness of the worker’s behaviour, not (as the submission assumes) with the subjective reasonableness of the worker’s state of mind.

73.Ultimately it is a question of fact as to whether in all the circumstances the plaintiff failed to make the necessary effort as stipulated in s 203(1) of the Act.

74.A signal distinguishing feature of this case unlike other instances where the defendant has succeeded in discharging its onus of proof, is that the plaintiff returned to work, not once but twice. It is difficult to make good a contention therefore that the plaintiff approached the matter of her return to work with anything other than genuineness despite the period of each return being brief. I accept that a return to work under one offer or, indeed a subsequent offer, is one thing whereas under the Act, the obligation on a worker is continuing obligation to make ‘reasonable efforts’ but, nonetheless, the plaintiff having attempted as much twice, makes the defendant’s capacity to discharge its onus of proof, without more, difficult.

75.Also this case was conducted by reference to a contest about the nature and extent of the worker’s injury and the extent of the same in relation to her efforts to comply with the defendant’s suitable job offers. Moreover, not only is this case different from many others because the plaintiff has evidenced a return to work on two separate occasions, but as well her treating doctor’s advice conformed to her inability to undertake and continue with the return to work. The plaintiff received medical advice from Dr White which coincided with her subjective belief and his assessment of her presentation to him on examination. As Osborn J said[19]:

The question is not hypothetically what she would have done but for this advice, but whether in the presence of such advice the Magistrate was bound to find she failed to make every reasonable effort having regard to her state of mind. It cannot be said he was.

[19] Randjelelovic op cit at [16].

76.I am satisfied that the plaintiff did make reasonable efforts to return to work and that the defendant has failed to discharge its onus of proof under the Act. As to the plaintiff’s condition there is nothing inherently improper about her presenting with a chronic pain syndrome.  Dr White’s frustration at being unable to provide a definitive clinical explanation of the plaintiff’s condition or of her ongoing presentation of pain and the unsatisfactory opinion he formed of the plaintiff’s son is understandable but the inexplicability of the same without more is not a substitute for evidence of fabrication or dissembling on the part of the plaintiff. I am not satisfied that the plaintiff engaged in any such conduct or that the defendant has adduced evidence of such. There was radiological evidence provided to Dr White that provided a basis to support his physical examination together with the plaintiff’s subjective expressed reaction by way of pain to the duties she had been performing. The plaintiff made two attempts to comply with the offers of suitable employment and I regard this a significant consideration in determining the reasonableness of here efforts.

77.I am satisfied that the decision of the authority to terminate the plaintiff’s entitlements based on an alleged failure by her to comply with her obligations under s 203 (1) of the Act are unlawful.

78.I direct that the proceeding be listed for mention on a date to be fixed in order to determine the further conduct of the proceeding.