Sarac v Ozdemir Holdings Pty Ltd (Ruling)
[2016] VCC 1985
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURN | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03177
| SERPIL SARAC | Plaintiff |
| v | |
| OZDEMIR HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2016 | |
DATE OF RULING: | 21 December 2016 | |
CASE MAY BE CITED AS: | Sarac v Ozdemir Holdings Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1985 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Referral of Medical Questions to a Medical Panel
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013, s273(1)(B)(i) and (ii)
Cases Cited:McClelland v Victorian WorkCover Authority (Ruling) (unreported) [2016] VCC; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Richter v Driscoll [2016] VSCA 142
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr E Makowski | Russell Kennedy |
HIS HONOUR:
1 This is an application before me pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for leave to proceed at common law for injury principally to a right shoulder and/or a low back, and/or a severe psychiatric reaction, which injuries have arisen out of the plaintiff’s employment. The defendant has made application pursuant to s274 (1)(b)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) to refer certain Medical Questions to a Medical Panel as set out in a Notice dated 23 November 2016. The application is resisted by the plaintiff on the basis that it is:
(a) an abuse of process pursuant to s274(3) of the WIRC Act; and
(b) alternatively, that the formation of an opinion by the Medical Panel will depend substantially on the resolution of factual issues which are more appropriately determined by the Court (s274(5) of the WIRC Act).
2 The Medical Questions contained in the Notice and numbered 1 to 8 are as follows:
“1. What is the nature of the Plaintiff’s current medical condition relevant to the injuries referred to in paragraph 5 of the draft statement of claim, namely:
(a) Injury to the right shoulder?
(b) Injury to the right arm?
(c) Low back injury?
(d) Pain from the low back into the legs?
(e) Severe psychiatric injury?
2. Do any of the medical conditions identified in response to question 1 result from or are they materially contributed to by the Plaintiff’s duties as a picker and packer with the Defendant?
3. Are any, and if so which, of the medical conditions identified in response to question 1 permanent?
4. Does the Plaintiff have:
(a)A current capacity for her pre-injury duties as a picker and packer?
(b) A current capacity for work as a:
i. Assembly worker (small products)?
ii.Process worker (i.e. labelling products, packaging, etc)?
iii.Cashier?
iv.Ticket collector/usher?
v.Crossing supervisor?
(c)A current capacity for work in other suitable employment?
5. If yes to question 4(c) above, what constitutes suitable employment for the Plaintiff?
6. If yes to question 4(a), (b) or (c) above, for how many hours per week can the Plaintiff perform such duties or employment?
7. Does the Plaintiff’s incapacity for work (if any) result or is it materially contributed to by any, and if so which, of the medical conditions identified in response to question 1?
8. Is the Plaintiff’s incapacity for work (if any) permanent?”[1]
[1]Notice of Request Pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), pages 1-2
3 The broad basis of the plaintiff’s claim is set out in her affidavit sworn 21 March 2016. Therein, she swears she was born in September 1971 in Turkey. She completed high school in that country, married and relocated to Australia in approximately 1990. Thereafter, she worked as a sewing machinist for five years and apparently had time off thereafter, while raising three children.
4 In 2003, the plaintiff commenced employment with the defendant, performing “picking and packing work”. She alleged she had to do a lot of bending, lifting, pushing and pulling.
5 In about February 2013, while performing her work, the plaintiff commenced to feel symptoms in her low back, her right shoulder and down her right arm.
6 In about March 2014, the pain started going into the plaintiff’s left leg and in April 2014, she reduced her hours.
7 The plaintiff ceased work in September 2014 and claims that because of her pain, particularly her back pain, she is unable to work at all now.
8 In September 2014, the plaintiff had a hydrodilatation for her right shoulder, which did not assist her pain. She also had cortisone injections to her right arm and lower back in mid-2014, which also did not assist her pain.
9 The plaintiff also attended a pain rehabilitation program at Cabrini Hospital from October to December 2014, with the intention of learning to cope with the pain. At this time, she was having treatment from a physiotherapist and a psychologist as well.
10 The plaintiff had a ketamine infusion (probably in her spine) in August 2015 and was in hospital for about six days at the Victorian Rehabilitation Centre in Glen Waverley. She claimed that this did not assist her pain either.
11 The plaintiff’s current medication is as follows:
·Panadol Osteo – six a day
·Pristiq – 200 milligrams, once daily
·Lyrica – 150 milligrams – two per day
·Mobic – 7.5 milligrams – when the pain escalates
·Sandomigran – when she has migraines.
12 Nonetheless, the plaintiff stated:
“I am still in incredible pain in my right shoulder and lower back”.[2]
[2]Paragraph 24
13 The issues in dispute are the nature of the plaintiff’s medical condition relevant to her physical and mental injuries and her capacity for work.
14 The defendant’s solicitors have prepared a “Proposed Medical Panel Referral File” containing medical and vocational reports. In addition, the plaintiff has filed written submissions.
15 It is submitted on behalf of the plaintiff that Questions 3 to 6 relate to a range of employment options set out in a document entitled “130 WEEK VOCATIONAL ASSESSMENT” prepared by Sharn Meneilly, vocational consultant, dated 8 March 2016 (“the report”). The principal submission of the plaintiff is that the determination of the plaintiff’s capacity for employment in those roles depends substantially on the resolution of factual issues which are more appropriately dealt with by the Court.
16 In the report, the “injury diagnosis” is stated to consist of:
“[The plaintiff] presents with chronic right shoulder and lumbosacral spinal pain”[3];
and
“… she has both [an] Adjustment Disorder with depressed mood and a Chronic Pain Disorder associated with psychological factors and [a] general medical condition.”[4]
[3]130 WEEK VOCATIONAL ASSESSMENT, dated 8 March 2016, at page 2
[4](Supra) at page 2
17 In a section entitled “medical restrictions”, the author reports as follows:
“Work Able Consulting notes that the following medical information has not been directly cited and has been provided by Xchanging Workers Compensation in the form of medical extracts.
On the WorkCover Certificate of Capacity dated 20 January 2016, Dr. P Enten (General Practitioner) reported:
‘No capacity for employment from 21/01/2016 to 12/02/2016.’
In the Independent Medical Examination report dated 2 December 2015, Dr. Adlard (Psychiatrist) reported:
‘I do not think she can return to her pre-injury duties and hours based on her current presentation I do not think she is capable of doing these duties at a new workplace either.
In my opinion, Ms. Sarac does not currently have a capacity due to the severity of her combined Adjustment disorder and chronic Pain Disorder. Another limiting factor is her limited English.
The main barrier relates to her combined psychiatric conditions. When considering returning to work, one would need to consider a position that did not exacerbate her pain though at this stage I think it might be difficult identifying one, particularly given her limited English skills.’
In the Supplementary Report dated 12 January 2016, Dr. Adlard (Psychiatrist) reported:
‘No current work capacity and likely to continue indefinitely.
With further treatment she is likely to develop a work capacity in the future.
She should undertake voc rehab services alongside treatment.
She should undertake English classes to improve capacity.’”[5]
[5](Supra) at pages 3-4
18 In another section headed “current work status” the author reports:
“Ms. Sarac reported she attempted to return to work “a few times” on light duties, noting she returned for 3 days per week for a period of a few weeks to a month each time. Ms. Sarac noted her light duties involved packing very small online orders into mailing bags and also re-labelling stock. Ms. Sarac reported these light duties became too much for her and she ceased her return to work in October 2014. Ms. Sarac advised she has not returned to work since this time.”[6]
[6](Supra) at page 4
19 In a section headed “assets to return to work”, the author states:
“• It is noted that from a physical perspective, Dr. Slesenger reports Ms. Sarac has a capacity for pre-injury duties and hours.”[7]
[7](Supra) at page 4
20 Further, in a section entitled “barriers to return to work”, the author recites:
“• Ms. Sarac is currently certified as unfit by Dr. Enten (General Practitioner) and reported as having no current work capacity by Dr. Adlard (Psychiatrist).
• Ms. Sarac reports constant pain in her lower back and right arm that causes her to be unable to handle even general household duties.
• Ms Sarac reports she is unable to drive due to her injury and the pain this causes her.
• Ms. Sarac has a very limited ability to communicate in English, requiring a Turkish interpreter.
• Ms. Sarac has limited transferable skills for alternative employment.
• Ms. Sarac has worked in physically demanding roles throughout her employment history.”[8]
[8](Supra) at pages 4-5
21 Thereafter, in a section entitled “suitable employment options”, a number of recommendations are made, with reference to an ANZSCO Code. The plaintiff’s counsel submits that there are a number of factual issues not disclosed within these descriptions which would make it impossible for the Medical Panel to assess the facts relevant to determining a medical question. In particular, he cites his objections with respect to Question 4 as follows:
“• 4(a) pre-injury duties as a picker and packer:
o What were the plaintiff’s pre-injury duties as a picker and packer? Are they as described by the plaintiff, or as described by the defendant?
• 4(b)(i) Assembly Worker (small products):
o Does this job in fact represent modified duties rather than real employment?
o What are the ‘components’? How much do the ‘components’ weigh?
o What machinery is used to ‘secure’ components, to punch and drill holes in the components, to nail, screw, rivet, crimp etc. the components? What physical movements are required to operate this machinery?
o What are the ‘hardware items’? How much do the ‘hardware items’ weigh?
o What are the ‘parts’? How much do the ‘parts’ weigh?
o What are the ‘items’? How much do the ‘items’ weigh?
o At what speed does an Assembly Worker work? How many ‘components’, ‘items’ and ‘parts’ must they work with per hour?
• 4(b)(ii) Process worker:
o What are the ‘raw materials’, ‘products’, ‘containers’, ‘components’ and ‘subassemblies’? How much do they weigh?
o What is the source for this information? What are the author’s qualifications?
• 4(b)(iii) Cashier (Turkish Grocer):
o What are the ‘goods’? How much do they weigh?
o What computer systems must be used?
o What does the work at Meydan Market and Dandymart involve? Do these ‘potential employers’ actually offer this position?
• 4(b)(iv) Ticket collector/usher:
o What are the physical requirements of this role? How does one ‘lock up the premises’?
o Does this job actually exist? What does the work at Sandown Park and Noble Park Aquatic Centre involve? Do these ‘potential employers’ actually offer this position?
• 4(c) A capacity for work in other suitable employment:
o It is submitted that to this is not a medical question, as described and to refer the question would be an abuse of process. It requires the Panel to consider all possible employment in the marketplace. It has the effect of reversing the onus of proof, which lies on the defendant to adduce evidence of ‘suitable employment’.
5. As to question 5 of the proposed Notice, the plaintiff refers to and repeats its submissions in response to question 4(c).”[9]
(sic)
[9]Plaintiff’s Statement of Issues Pursuant to s274(3) and s274(5) of the Workplace Injury Rehabilitation and Compensation Act 2013, dated 15 December 2016, at pages 2 and 3
22 Further, the plaintiff’s counsel submits that the job descriptions contained therein are a direct quote from the standard referred to, for example ANZSCO 832211.
23 Defence counsel, for his part, submits that this is not a case in which the defendant puts in issue the plaintiff’s credibility. He states that the video surveillance which is conducted over fifteen hours, in fact, contains no probative evidence which would be material to the Medical Panel’s decision and his client has no intention of submitting same. I have been invited to consider the reports and, if necessary, look at the tapes with respect to same. Upon reviewing the reports, I agree with defence counsel’s submission that the surveillance activity contains no material which, in my view, would necessitate the Medical Panel watching many hours of surveillance with a view to assessing the plaintiff’s credibility. It would appear, in the sum total of surveillance, that it was only one-minute 58 seconds of video taken of the plaintiff on 9 February 2015, in which she was seen travelling by car to a bank and conducting some business at an automatic teller machine. Even if the Medical Panel chose to have regard to the film of one-minute and 58 seconds, I do not believe that this would assist the plaintiff’s submission.
24 Further, the defence counsel submits there is no suggestion the plaintiff is a liar and credit is not in issue; rather, there is a dispute as to her capacity for work.
25 Further, defence counsel relies on a decision of this Court of his Honour Judge Coish in a matter of McClelland v Victorian WorkCover Authority (Ruling)[10] in which his Honour stated:
“… the question whether the plaintiff is able to perform certain roles is in part a medical and in part a factual question. It is, in my opinion, the very issue many of the defined medical questions address. It is not, in my opinion, more appropriately dealt with by the Court.
In focusing upon the alleged weaknesses in the material obtained by the defendant the submissions made on behalf of the plaintiff seem to ignore the fundamental structure of the Act, namely, the medical panel is an arm of the dispute resolution mechanism under the Act and the medical panels give opinions on medical questions in accordance with law. Medical questions as to a worker’s capacity for employment, and in particular capacity for suitable employment, have been in the Accident Compensation Act and this Act for many years and there have been countless referrals of such questions from courts. There are, of course, often some factual issues in these matters. The plaintiff’s capacity to perform a role is central to medical questions as defined in paragraphs (b), (c), (d), (e) and (f).
The general issues in dispute in this case, namely the nature of the plaintiff’s physical and mental condition and his capacity for work, are not uncommon. I have been referred to a number of rulings of judges of this court and other authorities. In my opinion, these are of limited assistance as each case must be considered having regard to its own facts and circumstances.”[11]
[10](Unreported) County Court of Victoria, Judge Coish, 26 August 2016
[11]McClelland v WorkCover Authority (Ruling) (supra) at pages 10-11
26 In principle, I agree with his Honour’s approach, but would note the proviso that each case is dependent on its own facts.
27 In particular, the High Court, in the matter of Wingfoot Australia Partners Pty Ltd v Kocak,[12] stated:
“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[12](2013) 252 CLR 480 at 498-499
28 In this particular matter, the defendant has obtained the report of psychiatrist, Dr Steven Adlard, dated 2 December 2015. At page 7 therein, he is asked the following question:
“14. 1 Does Serpil have a diagnosable psychiatric condition relevant to the accepted compensable condition? … .”
to which his reply was as follows:
“Yes, I think that she has both an Adjustment Disorder with depressed mood and a Chronic Pain Disorder associated with psychological factors and a general medical condition. She meets the criteria for an Adjustment Disorder in that she has developed a reactionary psychiatric condition in response to an identified stressor, that is the development of pain in her shoulder and her lower back, this condition causes her some impairment and distress and the symptoms and signs are insufficient to meet the criteria for a more serious disorder such as Major Depression.”[13]
[13]Report of Dr Steven Adlard, dated 2 December 2015 at page 7
29 At page 8 therein, Dr Adlard is referred to the definition of “suitable employment” and asked whether the plaintiff has such a capacity. He replies:
“In my opinion, Ms Sarac does not currently have a current work capacity due to the severity of her combined Adjustment Disorder and Chronic Pain Disorder. Another limiting factor is her limited English.”[14]
[14]Report of Dr Steven Adlard, dated 2 December 2015 at page 8
30 Relevantly, Dr Adlard is asked, on page 9, if there were identifiable secondary gains that may be contributing to her presentation, and he replied:
“One possible or likely secondary gain is that she is now in a position to be able to look after her husband more directly. It is difficult to assess this aspect in a medicolegal interview. Some surveillance might add further to any identification of possible secondary gains in this regard.”[15]
[15]Report of Dr Steven Adlard, dated 2 December 2015 at page 9
31 The plaintiff’s counsel adopts this proviso as being evidence of the unsuitability of the Medical Panel process for determining such an issue.
32 Defence counsel also relies on the successive opinions of psychiatrist, Dr Timothy Entwisle, who has provided three reports dated 28 January 2015, 5 June 2015 and 23 June 2016. In his first report, he noted:
“She was noted to move very slowly, sat in an upright position and demonstrated a number of abnormal illness behaviours.”[16]
[16]Report of Dr Timothy Entwisle, dated 28 January 2015 at page 3
33 Further, at page 4, he states:
“2. Ms Sarac has now become depressed. As such the situation involves attempting to assist her with her depressed mood. There are more than likely other reasons why Ms Sarac is depressed including the factors described above in regard to the psychosocial situation.”[17]
[17]Report of Dr Timothy Entwisle, dated 28 January 2015 at page 4
34 The psychosocial contributions above were said to:
“… involve her husband’s illness, her role as the main breadwinner for the family in the context of that illness. Secondary gain factors appear to be operating in her case.”[18]
[18]Report of Dr Timothy Entwisle, dated 28 January 2015 at page 4
35 Importantly, he stated:
“At this time the worker would be deemed as having no work capacity however the lack of work capacity occurs in the absence of a physical injury or condition apart from a soft tissue injury.”[19]
[19]Report of Dr Timothy Entwisle, dated 28 January 2015 at page 5
36 In his second report, Dr Entwisle confirmed a diagnosis of an Adjustment Disorder with Depressed Mood in the context of her Pain Disorder. In his “summary” section, he related:
“Little has changed in regard to Ms Sarac who I interviewed five months ago. Her condition remains of concern. She is booked to attend a pain management program again tomorrow, but the prognosis there is likely to be for little improvement. The clinical picture is dominated by abnormal illness behaviour and injury conviction. Ms Sarac’s psychosocial situation makes a significant contribution to her current symptoms (husband’s illness).
Ms Sarac continues to attend her GP who has increased her psychotropic medication (Pristiq 100 mg). Little change has occurred and little change is likely to occur I believe in the immediate future.”[20]
(sic)
[20]Report of Dr Timothy Entwisle dated 5 June 2015 at pages 3-4
37 Despite there being little change in her condition and the diagnosis being identical, on this occasion, Dr Entwisle states:
“3. Ms Sarac’s presentation is not explained by her employment. The picture is dominated by abnormal illness behaviour and is not consistent with a mild soft tissue injury.
4. I do not believe Ms Sarac’s condition could be deemed to be materially contributed to by the injury given Dr Barton’s assessment of this lady with abnormal illness behaviour predominating, including generalised weakness in the right arm and left leg, non-anatomical sensory changes, widespread areas of tenderness and increase in symptoms with axial loading. He considered that there was no incapacity, although clearly her illness behaviour suggested otherwise. A similar situation can be said in regard to her psychiatric presentation.
…
6. Given Ms Sarac’s presentation and self-reported injury both physically and emotionally it is not likely that Ms Sarac will return to work.
…
8. Ms Sarac is likely to remain off work. Again, her current presentation is not explained by the injury, but by other factors.” [21]
[21]Report of Dr Timothy Entwisle dated 5 June 2015 at page 4
38 In his third report, in the “opinion” section, Dr Entwisle states:
“7.Ms Sarac’s lack of capacity for suitable employment relates to the presence of a Pain Syndrome and associated Adjustment Disorder. She is totally dependent upon those around her. Her illness conviction demonstrates a range of abnormal illness behaviours. Her injury has no organic basis to it and is explained by other factors.
8.Her incapacity is likely to continue indefinitely.”[22]
[22]Report of Dr Timothy Entwisle dated 23 June 2016 at page 4
39 Finally, at page 5, Dr Entwisle states:
“13. As indicated in all of my reports, functional factors are operating in Ms Sarac’s case and there are secondary gains (receipt of weekly compensation payments, support and treatment of various kinds).[23]
[23]Report of Dr Timothy Entwisle dated 23 June 2016 at page 5
40 In my view, it is clear on the psychiatric evidence to be placed before the Medical Panel, that:
(a)The plaintiff is suffering from a Chronic Pain Syndrome and Adjustment Disorder which, in the opinion of Dr Adlard, is related to her employment; and
(b)Insofar as it is not related to employment, as perhaps opined by Dr Entwisle, there would need to be considerable cross-examination of the plaintiff as to the influence of so-called secondary gains with respect to her husband’s illness, the receipt of weekly payments of compensation and “other factors” as yet unidentified.
41 As noted by plaintiff’s counsel, without objection from defence counsel, the husband will not be giving evidence before the Medical Panel and will certainly not be cross-examined by it. Further, it is probably inappropriate that the Medical Panel have to decide such a dispute as seemingly raised by the competing contentions and the competing medical opinions of Dr Adlard and Dr Entwisle. In my view, the statement by the High Court in Wingfoot above, that the function of a Medical Panel is not “arbitral or adjudicative”,[24] probably carries the day over the principles set out by his Honour Judge Coish in the matter of McClelland.
[24](supra) at paragraph [47]
42 As far as the physical injuries are concerned, I consider that the submissions made by the plaintiff’s counsel with respect to Question 4 are of considerable weight given the similar comments made about the vocational report in the Court of Appeal decision of Richter v Driscoll.[25] It should be noted, however, that the Court of Appeal did not consider, nonetheless, that those matters were inappropriate for a Medical Panel to determine but, in essence, the relevant information must be placed before them.
[25][2016] VSCA 142
43 In this matter, therefore, it appears to me there are a number of questions of fact which will be contentious and which are better addressed by a court. The questions of secondary gain have already been addressed, but there would also be matters concerning the disentangling of psychiatric consequences from physical consequences which can, in turn, be related to the secondary gain issue. Further, as I am told there is little to find organically on objective medical enquiry, the question of the plaintiff’s bona fide’s with respect to physical impairment are likely to be in contention.
44 In all the circumstances, I do not consider it appropriate to refer the Medical Questions to a Medical Panel as I consider the formation of its opinion on those Questions would depend substantially on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel, and the Application will be dismissed.
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