Saka v J J Richards and Sons Pty Ltd
[2016] VCC 1182
•17 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02670
| RESUL SAKA | Plaintiff |
| v | |
| J J RICHARDS & SONS PTY LTD (ACN 000 805 425) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 August 2016 | |
DATE OF JUDGMENT: | 17 August 2016 | |
CASE MAY BE CITED AS: | Saka v J J Richards & Sons Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1182 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lumbar or lower spine in the course of work duties – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – aggravation of pre-existing psychological disorder – disentangling physical from psychological consequences
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases cited: Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted in respect of pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley QC with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr J Gorton QC with Mr P Bourke | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Resul Saka, suffered an injury to his lower or lumbar spine in the course of his employment duties with the defendant, J J Richards & Sons Pty Ltd (“Richards”), in May 2014. He worked principally as a truck driver but was also required to remove a heavy metal grill. He says he suffered severe pain, although did not report the incident either at work or to his doctor.
2 Some weeks later, he was shovelling rubbish into a bin and again suffered severe lower back pain. On this occasion, he reported the incident and sought treatment from his general practitioner. A subsequent MRI scan showed a disc protrusion at L5‑S1. He left work and has not returned to Richards or any other employment since. He has received conservative treatment, although after a recent episode when his leg locked, he is considering surgical intervention.
3 Prior to the physical injury, Mr Saka had a number of psychological difficulties, in particular a problem with anger management. This led to a number of criminal convictions and an acrimonious breakdown of his marriage. According to Mr Stanley, Counsel for Mr Saka, this pre-existing psychological condition affected his capacity to deal with pain and restriction following the physical injury. This has resulted in significant angry outbursts and panic attacks.
4 Mr Saka claims a range of domestic and recreational activities have been lost and he has been unable to return to work in any capacity since May 2014.
5 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of his employment with Richards in May 2014.
6 The body function said to be lost or impaired is the lower spine. In addition, Mr Saka claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder, although this aspect of the application was not pursued by Mr Stanley in the course of final submissions.
7 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
8 Mr Saka was the only witness called to give evidence and be cross-examined. In addition his affidavit, various medical and radiological reports, vocational reports and clinical notes were tended into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusion referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
9 Mr Saka was born in Melbourne and is now thirty-three. He left secondary school in Year 11. He started a hospitality course but completed only one year of that course. He then obtained a security license and commenced work as a security guard. He worked for a number of years in that industry. He said at times he found the work stressful and even dangerous. From 2001, he worked in a variety of jobs, all largely manual.
10 Mr Saka was married in about 2002 and separated in 2007. This led to the development of anxiety and depression. He has had a number of relationships since. He moved in with his parents after the separation. His mother became ill and he cared for her over the years from about 2009 to 2012. He had some casual jobs as well. He obtained a heavy truck licence and in 2012, and started work with Richards. He was looking for longer term financial security. He underwent a medical examination and presumably was assessed as fit for the work.
11 The work involved driving a garbage truck and operating related machinery. He was told he was competent at his work.
12 He had no previous problems with his lower back and was reasonably fit. He played soccer regularly, including training during the week, with a game on the weekend. He played about half a season in the year before the injury.
13 Before injury, he smoked marijuana on a regular basis. He used other illicit drugs occasionally.
14 Before he suffered the back injury, Mr Saka had a significant problem with anger management and aggression. In 2013, he was counselled on a number of occasions as a result of his aggressive conduct and for various infractions relating to company vehicles.[1] In cross examination, he denied some of the allegations. In 2013, he was convicted of assault charges and breaches of Family Violence Intervention Orders.[2] These appear to be related to the acrimonious breakdown of a relationship. Further, in 2015, he was convicted of further violence-related offences, including making a threat to kill.[3] Again, in the course of cross-examination, he minimised his involvement in this offending, or denied it. As a result of this offending, he has undertaken several programs in anger management, which he said have helped him. He said he is working on improving himself in that regard.
[1]Defendant’s Court Book (“DCB”) 148-151
[2]DCB 160-163
[3]DCB 164-169
15 At the time of injury, it was agreed he was earning approximately $61,000 gross per year.
16 After he suffered injury, he had a significant confrontation with a number of people at Richards which resulted in the issue of a letter in February 2015 terminating his employment for what was said to be serious misconduct.[4] His solicitors wrote a letter of apology explaining that his conduct was related to stress and trauma because of his physical, mental and financial predicament.
[4]DCB 140-141 (and letters from Richards dated 11 February 2015 and from his solicitors dated 18 February 2015)
17 In more recent times, he has read and obtained solace from the Koran.
The injury and its consequences
18 On 6 May 2014, he was allocated yard duty. This involved moving a number of heavy grills using a long metal rod. One grill was particularly heavy and difficult to move. He felt pain in his lower back, and down the legs. He described the feeling as “heaviness”. He kept working and did not report the matter, although he said he told his manager, Mr Michael Cruze, about the “heaviness”.
19 On 19 May 2014, he was driving a truck and had to manually move a bin so that he could pick it up with the mechanical arm. When he was positioning the bin, he again felt pain in the low back, the same as he had felt when working on the grill. He kept working and continued his round, but when he returned to the depot, he complained to his manager and filled out an Incident Report Form. He went to see the company doctor, Dr Lee. She referred Mr Saka for an x-ray and prescribed medication. She also referred him for physiotherapy. He undertook five sessions of physiotherapy but says he did not obtain any benefit.
20 Dr Lee arranged a MRI scan which showed:
“Shallow left paracentral L5/S1 disc protrusion without nerve root compression.”[5]
[5]Plaintiff’s Court Book (“PCB”) 54
21 Mr Saka sought a further medical opinion and went to his usual general practitioner, Dr Jamal Yusuf, in early June 2014. A Return to Work Plan was arranged in August 2014.[6]. It involved light duties counting bins; however, Mr Saka said he was required to sit and stand and he had further back and leg pain.
[6]DCB 95
22 Dr Yusuf referred Mr Saka to Mr Craig Timms, orthopaedic surgeon, in June 2014. He complained to Mr Timms of the two workplace incidents. He said he had pain in the midline of the back and into the left leg. Formal examination indicated decreased sensation in the left leg in the L5-S1 distribution with decreased ankle reflex. Mr Timms noted the MRI with the disc bulge at L5-S1 and said this was the likely cause of his symptoms.
23 In July 2014, Mr Timms arranged a CT-guided L5-S1 epidural injection. This provided little lasting relief.
24 In September 2014, Mr Timms arranged a further MRI scan which showed:
“Left L5/S1 subarticular disc protrusion contacting the traversing left S1 nerve root.”[7]
[7]PCB 55
25 Mr Timms said this indicated a progression of the disc protrusion from the previous scan.
26 By September 2014, Mr Saka was complaining of persistent back pain and left leg sciatica. The prospect of spinal surgery was raised. Mr Timms considered a lumbar microdiscectomy at L5-S1. Mr Saka went away to think about the procedure, but given his age, decided against surgery. Mr Timms noted Mr Saka had received physiotherapy, hydrotherapy and massage treatment.
27 Mr Timms reviewed Mr Saka again in September and December 2015. Mr Saka reported increased pain in his spine and into both legs. An up-to-date MRI scan was arranged which, relevantly showed:
“… minor degenerative change at the L5-S1 disc without significant canal compromise. … .”[8]
[8]PCB 42
28 Mr Timms suggested an exercise regime, and continued physiotherapy with Pilates. He thought surgery, in the form of a lumbar fusion, was a last resort.
29 In his report dated 18 February 2016,[9] Mr Timms said Mr Saka was “completely incapacitated” in relation to fitness for work. As to prognosis, he said that Mr Saka would be left with chronic back pain and sciatica and that he would remain incapacitated unless “he enjoys a significant improvement in his symptoms from the current treatment plan”. He thought the condition had stabilised.
[9]PCB 39-40
30 Mr Saka has continued under the care of Dr Yusuf to the present time. Dr Yusuf noted Mr Saka did not like taking medication.
31 In 2014, Dr Yusuf said it was not appropriate that he undertake any return to work program.[10] He noted that Mr Saka was unable to undertake many of his household tasks.
[10]PCB 26
32 In 2015, Mr Yusuf said Mr Saka was frustrated, upset, angry and emotionally unstable. WorkCover had suspended his entitlements and he presented with various anxiety symptoms and panic attacks. He claimed to feel victimised and had developed paranoid ideas. He said:
“… I do not see Mr Saka to be able to get back to his job in the near future due to the frustration anxiety and depression and the way he is treated by his insurance.”[11]
(sic)
[11]PCB 30
33 In February 2015, Dr Yusuf referred Mr Saka to Dr Geoffrey Hogan, psychiatrist. That practitioner noted stress arising from his physical pain, but also following the breakdown of a recent relationship. He noted sleep disturbance, low appetite and increased weight. He was on antidepressants at the time. Mr Saka said he had become socially withdrawn, had impaired concentration and was irritable and agitated. He noted panic attacks which, on one occasion, had taken him to hospital. He described a largely depressed mood and a sense of hopelessness. He said Mr Saka was angry and refused to answer a number of questions. He apologised in the second session. Despite problems with control of aggressive impulses and hostility, he said there was no evidence of a diagnosis of a personality disorder or any prior psychiatric illness. He concluded Mr Saka had symptoms of a Major Depressive Disorder. He noted the prescription of a range of anti-depressant medication which had a sedating effect. He suggested treatment at a rehabilitation centre. At that time, Dr Hogan said he was incapable of returning to pre-injury employment or alternative duties.[12]
[12]PCB 43-49
34 Various further return to work plans were arranged through a rehabilitation provider, Nabenet.[13] On occasions, Mr Saka did not attend meetings and could not be contacted.
[13]DCB 97-111
35 A further return to work occurred in December 2015 for a short time but was unsuccessful. Throughout this period, Mr Saka was being certified as unfit for any duties by Dr Yusuf. He has not returned to any other form of employment and has not been actively looking for jobs. According to his affidavit, he continues to experience low-back pain, with pain radiating into the left buttock and leg and, at times, pain into the right leg. He says the pain fluctuates but he is never free of it.
36 He finds bending difficult and cannot sit or stand for long periods. He cannot lift significant weights and repetitive tasks cause his pain to increase. His sleep is affected and he has taken medication to assist from time to time, although it made him feel drowsy. Even getting dressed and walking causes an increase in his pain. He says he has attempted rehabilitation with exercises including cycling on an exercise bike. Medication has included Panadol Osteo tablets on a regular basis, although these affect his stomach.
37 Recently, while at home, he suffered significant pain in his left leg and could not put any weight on it. He found it difficult to walk. Eventually, he was taken by ambulance to hospital and stayed overnight. He had some physiotherapy and was prescribed Endone, which he continues to take, as needed. He went home on crutches, which he used for about two weeks. He has been to see Dr Yusuf and is again considering the prospect of surgery, as he was concerned about this recent event. Dr Yusuf arranged another MRI scan, which showed:
“… Possible irritation of the traversing left S1 nerve root in the subarticular recess of L5/S1, secondary to a shallow left paracentral disc protrusion. If the patient’s symptoms fit with the S1 dermatome, CT guided left sided L5/S1 posterior epidural injection may provide symptomatic relief.”[14]
[14]PCB 56
38 He says he is preoccupied with the pain in his spine and has become anxious and depressed as a result.
Consultant medical opinions
39 Mr Saka was examined by Mr David Brownbill, neurosurgeon, on 1 July 2015. He said Mr Saka had suffered an –
“Aggravation of pre-existing asymptomatic lumbar spine degenerative changes with associated intervertebral disc derangement is consistent with occurring as a result of the described physical activities of the 6th May 2014 and again a week later.”[15]
[15]PCB 75
40 He said Mr Saka was not fit to resume pre-injury employment. Given his employment had always involved physical activity, it was likely he would be unable to perform any employment for which he was suited in an ongoing or reliable fashion. He said the prognosis was uncertain but the pain may progressively improve. He suggested no specific treatment but if the leg pain increased or signs of radiculopathy developed, consideration could be given to surgical intervention.[16]
[16]PCB 75-76
41 Mr Saka was examined by Mr Mohammed Awad, neurosurgeon, in July of this year. He diagnosed an aggravation and acceleration of lumbar spondylosis with left S1 radiculopathy related to the L5-S1 disc. He thought Mr Saka did not have the physical capacity to undertake even the most sedentary work activities. Taking into account his education, training skills and work experience, and considering the severity of his spinal condition, Mr Awad said it would be extremely unlikely that he would be able to obtain any suitable employment, and if he did, it would be extremely unlikely he would be able to carry it out in a reliable and consistent fashion. He concluded Mr Saka was totally incapacitated for the long term. He also recommended a pain management program, together with an MRI scan in a standing position. He did not think, subject to the result of the scan, that there was any benefit to be obtained from spinal fusion. He thought Mr Saka would continue to suffer significant pain and disability.
42 On behalf of the defendant, Mr Saka was examined on a number of occasions between 2014 and 2016 by Dr David Barton, occupational physician. He was retained, at the early stages, to assist in a return to work plan, and went to the workplace to inspect proposed duties. The various return to work programs were approved by Dr Barton. On examination, he observed a range of inconsistencies, with evidence of abnormal illness behaviour. He said the radiological reports showed relatively minor changes, and no evidence of radiculopathy. He accepted that while Mr Saka had initially suffered some mild mechanical low-back problems, the condition had become functionally based. He said he was capable of returning to suitable employment consistent with the various areas of employment set forth in the reports of the rehabilitation providers.
43 Mr Michael Dooley, orthopaedic surgeon, saw Mr Saka in June this year and provided a number of reports. On examination, he noted moderate restriction of the lumbar spine with no evidence of neurological deficit. He said there were some inconsistent signs in straight-leg raising. He concluded Mr Saka had suffered a work-related aggravation of underlying degenerative disc disease at L5-S1. He said the consistency and intensity of the pain was greater than one would expect from his organic condition. He thought there had been a psychological reaction to the situation which influenced the ongoing symptoms. He said the treatment should remain conservative, and there was no place for surgery. He thought Mr Saka had the physical capacity to carry out light physical work or clerical duties. He said there was likely to be some ongoing intermittent low-back pain.
44 When provided with the vocational reports, he said Mr Saka had a physical capacity to work as a packer, dispatch clerk and courier/driver. A return to work would have to be on a graduated basis, with hours increased in time. He said it was very important that a return to work be organised. He did not think a pain management program would assist. He was provided with the June 2016 MRI report which he said did not alter his opinion.
45 Mr Saka was examined by two consultant psychiatrists, Professor Ivor Jones and Dr Brendan Hayman. The reports of those practitioners are not of any real assistance in assessing the physical injury.
46 A comprehensive vocational assessment report was provided by Recovre.[17] This report suggested a number of areas of employment were suitable. These included hand packer, receiving and dispatch clerk, and courier. The report examined the duties involved and the restrictions referred to by the medical practitioners in their various reports. To the extent the report provides a medical opinion as to Mr Saka’s capacity to perform the duties referred to in the report, I ignore that opinion. The authors of the report hold no medical qualification.
[17]DCB 47-75
Conclusions
47 I accept that prior to May 2014, Mr Saka was in reasonable physical health and, in particular, had no pain or restriction in his lower spine. Although his employment history has been somewhat chequered, I accept he was in stable employment with Richards at the time of the injury, earning in excess of $60,000 per year. I accept this sum best represents his “without injury” earnings for the purpose of s134AB(38)(f)(ii) of the Act.
48 In final addresses, Mr Stanley submitted there had been no significant attack upon Mr Saka’s credit. He submitted I should accept the consequences of the lower back injury, both in terms of pain and suffering and restriction of earning capacity, as Mr Saka’s described in his affidavits.
49 In the course of cross-examination, Mr Saka was belligerent and regularly refused to answer questions. Despite Mr Gorton conducting the cross-examination in a calm and appropriate manner, Mr Saka regularly avoided a direct response and even attempted to question Mr Gorton. Such was Mr Saka’s response that it became very difficult to conduct the cross-examination. While I accept Mr Saka’s attitude was part of his underlying incapacity to regulate his anger (possibly as a result of some form of mental disorder or premorbid personality vulnerabilities[18]), I am of the view that his credit is adversely affected. In particular, when he was questioned on crucial issues about the effect upon him of the injury, or his capacity to obtain alternative employment, he either refused to answer the question directly or became aggressive.
[18]See the opinions of Professor Jones (DCB 31) and Dr Hayman (PCB 87)
50 It was not so much that he did not understand the question but rather, he took the view he ought not be challenged on his evidence. All of this affects his credibility. I have concluded that, where appropriate, I should seek objective confirmation of his evidence wherever possible.
51 The defendant admitted it had conducted 60 hours of surveillance of the plaintiff over the period from August 2014 to May 2016, although in part of that surveillance, the plaintiff was not observed. I infer the surveillance did not show the plaintiff engaged in activities contrary to his claims of injury and restriction.
52 While the reports of the treating general practitioner, Dr Yusuf, were not particularly extensive, and did not detail physical examinations, interpretation of the radiology nor clear assessment of work capacity, nonetheless he has treated Mr Saka over a considerable period, and his opinion should be respected. He has assessed Mr Saka as unfit for employment duties through to the present time. While it is not particularly clear from his reports, that assessment would appear to be on the basis both of physical injury, and due to frustration, anxiety and depression arising from the injury, and his perceived treatment by the insurer.
53 I was considerably assisted by the reports of the treating neurosurgeon, Mr Timms. He treated Mr Yusuf from 2014 until December 2015. He noted the various radiological investigations save for the MRI scan of June 2016. He concluded Mr Saka had suffered a L5-S1 disc injury and that his pain was related to the disc at that level. He suggested the prospect of surgery at an earlier time. He thought Mr Saka was completely incapacitated, and likely to remain so.
54 Both Mr Brownbill and Mr Awad, experienced neurosurgeons, thought Mr Saka had aggravated pre-existing degenerative changes at L5-S1. Mr Brownbill thought Mr Saka was not fit for pre-injury employment and realistically not fit for any employment given his background. Mr Awad thought Mr Saka did not have the capacity to undertake even sedentary employment.
55 Dr Barton, occupational physician, thought the radiological changes minor, that the initial soft-tissue injury had resolved and whatever ongoing problems Mr Saka suffered, they were functional. Dr Barton is the only practitioner to have come to these conclusions. Even although he has seen Mr Saka on a number of occasions, and visited the workplace, I do not accept his opinion. In my view, the assessment of a disc injury and the consequences, in particular as to work capacity, lie more in the realm and experience of orthopaedic and neurosurgeons.
56 Mr Dooley, while accepting Mr Saka had aggravated underlying disc disease at L5-S1, thought he had a physical capacity to carry out light physical work or clerical duties.
57 I prefer the opinions in particular of the treating practitioners, Dr Yusuf and Mr Timms. I accept Mr Saka suffered a disc injury at L5-S1 as evidenced by the various MRI scans. I accept the opinion of Mr Timms that there has been a progression of the injury, at least over the scans in 2014. Those opinions are supported by the neurosurgeons.
58 An assessment of Mr Saka’s work capacity involves a consideration of the definition of “suitable employment” as referred to in the Act. Regard must be had to his education, experience, skills and age, as well as the nature of his injury and incapacity. On any view, Mr Saka’s experience lies in manual work and the security industry. While he accepted he had some computer skills, he has no clerical nor administrative experience. Prospective employment in those areas would be totally unsuitable. I reject the assessment of Recovre that work as a packer, dispatch clerk or courier driver are suitable areas of employment.
59 Accepting the opinions of the treating practitioners, I am of the view that from a physical perspective, Mr Saka has very little, if any, employment capacity. What capacity he does have is again restricted, given his educational and work experience background. I am satisfied, from a physical perspective, that he meets the test for loss of earning capacity as prescribed by s134AB(38)(e) of the Act.
60 Mr Gorton submitted there was a disentangling exercise to be undertaken given Mr Saka’s underlying psychological problems including his difficulties with anger management, anxiety and depression. However, I am not satisfied there is any significant disentangling exercise.[19] Given my acceptance of a disc injury to his lower spine, I am satisfied that is the principal or dominant reason for the pain and restriction in that area, and his loss of earning capacity as a result. From this, I exclude reliance on his anger management issues. While they have in the past played, and continue to play, a role in his ability to deal with the physical pain, of themselves they are not the reason for his reduced employment capacity.
[19]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21]-[22]
61 Given my findings as to loss of earning capacity, it is unnecessary for me to assess the pain and suffering consequences.
62 The plaintiff’s application succeeds both as to pain and suffering and loss of earning capacity.
63 I shall make consequent orders.
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