Savva v VWA
[2020] VCC 133
•26 February 2020
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03828
| SAVVAS SAVVA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2020 | |
DATE OF JUDGMENT: | 26 February 2020 | |
CASE MAY BE CITED AS: | Savva v VWA | |
MEDIUM NEUTRAL CITATION: | [2020 VCC 133 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s274 – dispute in relation to referral of proposed medical questions – whether significant factual dispute exists – whether defendant’s medical material supports plaintiff’s position – whether referral would constitute an abuse of process – whether questions should be referred to Panel – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Smietanka | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr N Dunstan | Wisewould Mahoney |
HIS HONOUR:
1 This matter comes before me by way of a dispute concerning a proposed referral of medical questions pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (herein after referred to as “the Act”). Ms A Smietanka of counsel appeared on behalf of the plaintiff. Mr N Dunstan of counsel appeared on behalf of the defendant. Various documents were placed before me. Helpful and detailed submissions were made by counsel.
2 The argument before me essentially was focused upon the contents of medical reports. In particular, reports upon which emphasis was placed were those of Associate Professor Anthony Buzzard, orthopaedic surgeon, and Dr Michael Bloom, occupational and environmental physician. Both are comparatively recent reports and each related to an examination of the plaintiff at the request of the defendant. The proposed referral of medical questions is at the request of the defendant.
Factual background
3 The factual material placed before me for the purposes of the present application could be summarised as follows.
4 The plaintiff is a 55-year-old man, originally from Cyprus. He has been in Australia for some 45 years. He has worked in a variety of employments. In 2010, he commenced employment with Aluminium Specialties Pty Ltd as a storeman, picker and packer. The injury upon which reliance is placed could be summarised as being one to the right and left groins, involving bilateral herniae.
5 The plaintiff’s claim for statutory benefits was accepted. The plaintiff is now seeking to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity.
6 It was stated at the outset by Ms Smietanka that what she described as the “gateway” were the groin injuries, although some attention had been directed to the lower back. In any event, there is no dispute but that the plaintiff suffered injury to the groins on 15 August 2016. Without going into unnecessary details, the plaintiff is alleging that he was pulling a loaded trolley when the wheels jammed. This shall hereinafter be referred to as “the accident”.
7 A joint court book was placed before me. This contains numerous medical reports. There are seven from treating medical practitioners, along with extracts from the medical records of the general practice where the plaintiff was being treated. There is also one medico-legal report organised on behalf of the plaintiff, this being from Mr Charles Flanc, general and vascular surgeon. There are some six reports from medical practitioners who saw the plaintiff at the request of the defendant, in addition to a report from the Recovre Group in relation to potentially suitable employment.
8 In the submission of Ms Smietanka, much of the medical material and questions for the Medical Panel relate to the lower back, whereas, as earlier stated, the “gateway” injury upon which reliance is placed is that to the groins. Further, there has been the diagnosis of Chronic Pain Syndrome.
9 I shall not go through the lengthy medical material in question, but shall for the moment direct my attention to the aspects of that evidence which are at the centre of the submissions and the dispute.
The proposed questions
10 There are only two questions. I shall not set them out in full.
11 The submissions of Ms Smietanka on behalf of the plaintiff could be summarised as follows.
12 Question 1 inquires as to what the medical condition of the plaintiff’s right groin, right hernia, left groin, left hernia, bilateral hips, stomach, and mind does he suffer from relevant injury alleged by him through the course of his employment and on 15 August. Question 2 inquires as to what extent does any medical condition of the areas referred to above result from or is materially contributed to by injury alleged throughout the course of the employment and on 15 August. Whilst the year in question is not set out, for present purposes it can be taken to be 2016.
Submissions on behalf of the parties
(a) The Plaintiff
13 The plaintiff opposes the referral on two bases. The first of these is that the referral would represent an abuse of process. The defendant seeks to refer only two questions in relation to diagnosis and causation and essentially the plaintiff opposes such referral insofar as the questions relate to the plaintiff’s groins and herniae. The basis of such opposition is that, on the medical evidence, there is no dispute concerning causation or diagnosis. Reference is made to the decision of this Court in Baumgartner v VWA [2019] VCC 1425.
14 On the basis of the medical material, there is no dispute but that, as a consequence of the plaintiff’s work duties in August 2016, he suffered injuries to his left and right groin areas. Secondly, there is no dispute but that there is a current diagnosis of Chronic Pain Syndrome. Thirdly, the medical material does not permit there being a dispute but that the plaintiff’s injuries were initially work related and continue so to be. Further, no doctor states that the plaintiff can return to his pre-injury duties.
15 In his most recent report of 14 August 2019, Associate Professor Buzzard states that the plaintiff suffered a groin problem as a result of the nature of his work at the relevant time. This was thought to be a recurrent left inguinal hernia. His present condition is that he has a chronic pain problem which is materially contributed to by the work event of August 2016. Associate Professor Buzzard goes on to say that it is reasonable to accept that, as a consequence, the plaintiff should be classified as being unfit for work involving heavy lifting, bending and stooping. From a purely physical point of view, the plaintiff could return to suitable employment.
16 In his report of 20 May 2019, Dr Bloom states that the plaintiff apparently sustained a soft-tissue bilateral groin strain in the course of his employment on 15 August 2016. He has failed to recover and rehabilitate. No organic cause for the plaintiff’s current persisting pain has been identified. Dr Bloom said that it was reasonable to consider that the plaintiff was now suffering from a Chronic Pain Syndrome. However, he is not incapacitated. His ongoing symptoms would prevent him from resuming any physically-demanding work of the type he has experienced, although he could be retrained in sedentary or semi-sedentary low-skilled occupations.
17 On the basis of its own recent medical evidence, the defendant cannot deny that the proper diagnosis is Chronic Pain Syndrome and that the issues continue to be work-related. The attempted referral is of the type described in Baumgartner as a last desperate throw of the dice by a party in the hope that an opinion of a Medical Panel will turn out to be favourable to that party’s cause.
18 Secondly, it is submitted by the plaintiff that there is a significant factual dispute. In order to answer questions about causation, there has to be agreement about the plaintiff’s pre-injury duties and the circumstances in which he was injured, as described in his affidavit. In particular, the plaintiff asserts that the trolley he was pushing on the day in question weighed over a tonne. The defendant has not agreed to these facts. Given the dispute about the plaintiff’s duties and what occurred, the formation of an opinion by a medical panel in relation to causation would weigh substantially upon the resolution of factual issues. These are more appropriately determined by the Court.
19 What the defendant is attempting to do is to get an opinion from a medical panel to the effect, for example, that there is no longer a work relationship associated with the injury, when its own medical advisers are stating that there continues to be such a relationship. Associate Professor Buzzard and Dr Bloom are not psychiatrists and it can be assumed that the diagnosis at which they have arrived, being one of a chronic pain problem, is one based upon a physical condition. On the basis of the defendant’s medical material, there is no dispute but that the proper diagnosis is one of Chronic Pain Syndrome or a chronic pain problem and that the injury continues to be work-related. Reference is made again to the decision in Baumgartner.
20 In addition, the agreed facts suggested by the defendant do not include such things as the weight of the trolley and its load. The plaintiff has sworn that the total weight was over a tonne. If there is no agreement as to the factual foundation, questions about diagnosis and causation are not appropriate. There is a distinction between merely pushing a trolley and pushing a trolley and load with a total weight of 1 tonne. Where there is no agreement as to the nature of the plaintiff’s duties and as to what he was actually doing, the Panel cannot reach a proper conclusion as to what actually occurred.
(b) The Defendant
21 The submissions of Mr Dunstan on behalf of the defendant could be summarised as follows.
22 The particulars of injury referred to in the originating motion do not include Chronic Pain Syndrome. Far from it being an undisputed diagnosis, it is not a pleaded injury. The first medical question set out by the defendant is as to what the medical condition is and the second question is as to whether the plaintiff’s employment materially contributed to such injury or injuries. Thus, the primary question is “What is the injury?” and the second question is “Is it employment related?”
23 The accepted claim in this matter was for an abdominal strain occurring on 15 August 2016 when the plaintiff was trying to push a trolley. At a later date, the plaintiff submitted a claim based upon the course of employment up to and including 15 August 2016 for bilateral groin problems, pain radiating from the hips and the like. This claim was rejected. In relation to the accepted claim relating to the incident on 15 August, the plaintiff saw his general practitioner on the following day. He was complaining of various symptoms including abdominal pain, bloating and the like. The plaintiff was referred for a left abdominal ultrasound. A left inguinal hernia was detected. It should be pointed that, in 1999, when working for a different employer, the plaintiff had undergone the surgical repair of bilateral herniae.
24 On 4 November 2016, the plaintiff underwent a hernia repair, but no hernia was found. A large lipoma was found and removed.
25 The plaintiff had originally seen his general practitioner, Dr Anderson, after lifting a weight on 15 August. Dr Anderson referred the plaintiff to a pain specialist, Dr Mitchell, and to a surgeon, Mr Leinkram. Surgery was performed on 4 November 2016. Mr Leinkram expressed the opinion that the injury to the right side was in fact a work-related groin strain which would settle down with rest.
26 Dr Bruce Mitchell, a pain specialist, saw the plaintiff on 28 November 2016. After taking a history and the like, Dr Mitchell expressed the view that the cause of the plaintiff’s groin pain was unknown. Dr Mitchell stated that his aim was to work through an algorithm to identify the sources of the plaintiff’s pain.
27 In May 2017, the plaintiff was referred to another surgeon, Mr Paul Manohar. In his report of 8 May 2017, he states that the plaintiff’s main complaint was of pain in the right groin, radiating into the right testicle. Mr Manohar stated that there was a chance that the plaintiff may have some ilioinguinal nerve entrapment and there was some discussion of a nerve block in order to attempt to give him some relief. The plaintiff subsequently had a nerve block. Mr Manohar reported again on 16 March 2018. The nerve block had given him pain relief for a few days, but, essentially, whilst there was some numbness, it gave him no relief from the pain. However, he also referred to actually obtaining some pain relief. Mr Manohar described this as being “confusing to both of us”, whilst stating that this did not mean that the pain was not real. Mr Manohar expressed the view that he thought that the plaintiff was not coming from the ilioinguinal nerve, but from the back and pelvis and was more musculoskeletal in origin.
28 The plaintiff was referred by his solicitors to see Mr Charles Flanc, a general and vascular surgeon, who reported on 6 November 2018. His diagnosis was of a bilateral muscular-groin strain which occurred as a result of pushing a trolley. Mr Flanc could not explain the reason for the persistent pain in the groin regions at rest. He could not find any physical cause for these symptoms which would be consistent with the injuries of August 2016. He expressed the opinion that the incident of August 2016 probably caused a significant soft tissue strain to each groin region.
29 Dr Anderson also referred the plaintiff to Mr Michael Bickford, surgeon, who reported back on 2 September 2016. He was of the view that the plaintiff was not a good candidate for surgery and referred the plaintiff on to the Melbourne Pain Clinic. The defendant referred the plaintiff for examination by Dr David Barton, occupational physician, who reported on 6 October 2016. Dr Barton concluded that there was no identifiable problem on the right side apart from what might be seen as a mild area of soft tissue discomfort. He thought that the plaintiff should be able to return quickly to work after the repair of a small left-side inguinal hernia. It is to be remembered that, at surgery, no left-sided hernia could be found.
30 Dr George Wilson, occupational physician, reported to the defendant on 18 November 2016. He also diagnosed a left inguinal hernia, surgically repaired, but it is to be remembered Mr Leinkram found no hernia when performing such surgery.
31 Dr Jack Lipp, who practises occupational medicine, has reported to the defendant on a couple of occasions. He stated that he was unable to provide a cause of the plaintiff’s current medical condition that related to the original injury of 15 August 2016 and which would explain the persistent of bi-lateral groin pain. He was unable to connect the plaintiff’s bi‑lateral groin pain with any pathology identified in his lumbar spine or hips. He did not believe that the plaintiff’s bi‑lateral groin pain currently was materially contributed to by the claimed injury.
32 Dr Michael Bloom, occupational physician, essentially saw the plaintiff on 20 May 2019 in relation to his capacity for suitable employment. He took a history of the plaintiff pushing a trolley which weighed up to a tonne on 15 August 2016. Dr Bloom has stated that the plaintiff has failed to recover from soft tissue bilateral groin strains. No organic cause of his current persisting pain has been identified. The plaintiff’s history suggests that this has developed in a Chronic Pain Syndrome. Dr Bloom also commented that, in the absence of an organic basis for the pain, it was possible and indeed likely that adverse psychosocial factors were amplifying the plaintiff’s perception of pain. No clear organic basis for his symptoms could be identified on clinical examination by Dr Bloom.
33 Bearing in mind the above, it is the defendant’s submission that there is a dispute as to what is the nature of the plaintiff’s injury, whether it be hernias, injuries to the groin or, as now suggested, injury to the lumbar spine. Once the injury is identified, there is then the question of whether it was contributed to by the employment. The Panel can decide those questions and this would then be helpful to the Court. Potentially a Panel finding could bring the matter to an end or resolve a medical issue. A finding can also assist on the question of suitable employment. Either way, the Panel’s conclusion will assist the Court. In relation to the alleged pushing of the 1 tonne, the defendant will not be leading any evidence. The pushing of the 1 tonne is a matter concerning which the defendant currently has no instructions and it will not be raising any dispute concerning this before the Panel.
(c) The reply on behalf of the plaintiff
34 The reply of Ms Smietanka on behalf of the plaintiff could be summarised as follows.
35 Initially the doctors did treat the matter as being a hernia case. It was not until the surgery that the treating surgeon said that this was not a hernia case. The opinions of Dr Barton and Dr Wilson are irrelevant. The present diagnosis, and one not from psychiatrists, is of a Chronic Pain Syndrome. Secondly, in applications such as this there are frequently more than one injury. The gateway injury in the present case is bilateral groin strain on 15 August 2016 and that is not in dispute. Often there are other aches and pains that do not satisfy the serious injury threshold. For the purposes of the present application, it is the bilateral groin strain upon which reliance is place and it would be an abuse of process to send of questions to the Panel concerning the plaintiff’s back and hips when the gateway injury upon which reliance is placed is a bilateral groin strain.
Ruling
36 I am of the opinion that these two questions should be referred to a Medical Panel for its opinion.
37 I have come to that conclusion for the following reasons, which are not set out in order of importance or priority.
38 Firstly, I am of the view that the facts in the present case are markedly different from those in my decision in Baumgartner, to which I was referred. In Baumgartner, the plaintiff was involved in an accident when a box fell and struck her in the region of the right neck. There was no dispute as to this. An MRI of the plaintiff’s neck revealed a disc protrusion and impingement of nerve roots. The plaintiff came to surgery in the form of a cervical discectomy and fusion. Liability was accepted by the defendant and that admission extended to the payment of medical expenses. The plaintiff made attempts at a return to part-time work, but could not cope. She perceived the surgery as having failed and took a wide range of heavy medication, including an anti-depressant. After that initial attempt she had not returned to any form of work. The central issue for referral to the Panel focussed upon the plaintiff’s loss of earning capacity. An occupational physician and a psychiatrist, both examining on behalf of the defendant, effectively supported her position that she had at least a 40 per cent loss of earning capacity and thus would satisfy the requirements contained in s325 of the Act. A key finding in my Ruling was the absence of a medical dispute or controversy in relation to certain proposed questions. I observed that I could see no point in referral of a question concerning which there is no relevant dispute and did not regard such questions as being proper questions. Certain questions, where there was some scope for disagreement, were referred. Certain questions were referred because they addressed a live issue, as opposed to questions where there was no dispute or contrary views.
39 There seems to me to be substantial differences between the situation in Baumgartner and that in the present case. In the present case, there has been a range of diagnoses, both before and after surgical intervention. To give just a few examples, the treating urologist, Mr Manohar, essentially opined that the plaintiff’s pain was not coming from the ilioinguinal nerve but from the back pelvis, being more musculoskeletal origin. Dr Bloom referred to the plaintiff as apparently having sustained a soft tissue bilateral groin strain, also observing that organic cause of his current persisting pain has been identified. He considered that the plaintiff is now suffering from a Chronic Pain Syndrome. The “best fit” diagnosis of Mr Flanc was of a muscular groin strain. He could not explain the reason for persistent pain in the plaintiff’s groin regions at rest. Whilst commenting that the plaintiff was suffering from genuine pain in the described regions, Mr Flanc also stated that the exact cause of the symptoms was difficult to diagnose, apart from the chronic muscular groin strain. Dr Mitchell, who also treated the plaintiff, stated in his report of 21 March 2017 that the re-exploration of the plaintiff’s left groin had failed to change his pain and had ruled out this being a recurrence of his previous hernia. He described the cause of the plaintiff’s groin pain as being “unknown”. Associate Professor Buzzard, in his report of 14 August 2019, referred to the fact that various diagnoses have been put forward. Effectively, he ruled out hip pathology, referring to the fact that the leg pain “defies diagnosis”. He thought that the correct diagnosis was of a chronic pain problem following the hernia repair surgery. The operating surgeon, Mr Leinkram, when reviewing the plaintiff in April 2019, found no clinical evidence of a hernia in the right groin, stating that the groin pain was not hernia-related and suggesting the plaintiff be referred to pain specialist. Dr Lipp, when asked what was causing the plaintiff’s current medical condition, said that he was unable to provide a cause that relates to the original injury of 15 August 2016. He believes that the pain was not related to any nerves associated with the lumbar spine. The bottom line is that there is no clear-cut diagnosis. This is quite a different situation from that in Baumgartner, where there were specific findings confirmed by radiology and by surgery. There was also no dispute but that the diagnosed injury resulted from the accepted employment accident.
40 Accordingly, it seems to me that a referral of question 1 would not constitute an abuse of process within the meaning of s274(3) of the Act. It does not seem to me that it is a question where the formation of an opinion by a Panel would depend substantially on the resolution of factual issues more appropriately determined by the Court. I gave some consideration as to whether question 1(g), which inquires as to a medical condition of the mind, is an appropriate question. Bearing in mind some of the issues raised in the medical reports, I have come to the conclusion that it is. According to various opinions, and the uncertainty associated with some of the diagnoses, it seems to me to be a valid inquiry. For example, Associate Professor Buzzard has referred to chronic pain problems becoming increasingly common following hernia repair surgery and the reason for this being somewhat debated but basically unknown. Dr Lipp has been unable to provide a cause for the plaintiff’s pain that relates to the original injury. Dr Bloom has referred to the plaintiff’s history as being complex and somewhat confusing and has also stated that there is no clear organic basis for the symptoms identified. Observations such as this lead me to the conclusion that the inquiry contained in paragraph 1(g) is neither an abuse of process nor a question where the answer would depend substantially upon the resolution of factual issues more appropriately determined by the Court.
41 I am also of the opinion that question 2 is valid. The same medical conditions are listed and the inquiry is as to the extent to which any of the listed conditions result from or are materially contributed to by injury in the course of employment on the specified day. Many of the observations which I have made in relation to question 1 apply equally to question 2. I will not go through them again.
42 My conclusion is that neither of the questions constitute an abuse of process and in neither instance can it be said that the opinion expressed by a Panel would depend substantially on the resolution of factual issues more appropriately determined by the Court. In my opinion, this is not a situation similar to that in Baumgartner. The observations of his Honour Judge Rendit concerning “a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable to that party’s cause” do not seem to me to be applicable. Sufficient uncertainty surrounds both the diagnosis and the contribution of the work injury as to warrant the referral of the proposed questions to a Medical Panel. They seem to me to be valid questions within the meaning of s274.
43 I shall hear the parties as to the orders that are required.
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