Singh v Victorian WorkCover Authority
[2018] VCC 1006
•12 July 2018
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05330
| STALLI SINGH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 July 2018 | |
DATE OF JUDGMENT: | 12 July 2018 | |
CASE MAY BE CITED AS: | Singh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1006 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – disentanglement from psychological condition – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – credibility of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Frigerio Legal |
| For the Defendant | Mr A J McG Moulds QC with Mr B A Myers | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Mr Singh suffered an injury to his lower spine in the course of his employment with Earthtrack Solutions Pty Ltd (“Earthtrack”) on 23 April 2013. He was attempting to stop the movement of a large piece of machinery when he felt pain in his lower back. He says he has not been able to return to work since that day.
2 Mr Singh has been treated by a range of practitioners, including his general practitioner, pain management and rehabilitation specialists. The treatment has been largely conservative. He has had two steroid injections into his lower spine. He regularly takes pain-relieving medication. He has had physiotherapy.
3 Mr Singh has been treated for depression in the past and after the breakdown of relationships. He developed depression again after the back injury which has required medication and sessions with a psychologist.
4 Mr Singh claims to suffer constant pain in his lower spine, with referred pain to the legs, exacerbated from time to time depending upon the activities in which he is engaged. He claims that a range of domestic, recreational and social activities and interests are beyond him. He says he has little if any capacity for work. He has tried retraining through an Occupational Health & Safety Certificate Course at Bendigo TAFE, but was unable to complete it because of difficulties with sitting, computer use and concentration related to the medication he takes.
5 MRI imaging shows a moderate disc bulge at L4-5 with contact of the L5 nerve root.[1]
[1]Plaintiff’s Court Book (“PCB”) 90-96
6 Mr Singh is now forty-three years of age. He was thirty-nine when he suffered the injury. He was born in India and educated to Year 10. He migrated to Australia in 1995. In Australia, he worked as a delivery driver, drove a taxi and worked as a labourer-concreter. He then worked with a number of companies, including Earthtrack, using heavy machinery. He had some minor back troubles in the past, but nothing of significance.
7 His spoken English is good, but he has problems reading and writing in English.
8 This is a “serious injury” application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity. The body function said to be lost or impaired is the lower spine.
9 Mr Moulds, for the defendant, identified the real issues in the application as:
· There were significant credit issues to be put in cross-examination (“credit”).
· There was a disentangling exercise to be undertaken from those consequences on the one hand related to Mr Singh’s depressive condition, and on the other hand to the subject injury (“disentanglement”).
· As to earning capacity, Mr Singh had not suffered a loss of 40 per cent or more in accordance with the statutory formula (“loss of earnings”).
· When regard was had to other cases in the range of possible impairments, the consequences to the plaintiff did not meet the “very considerable” test (“range”).
Credit
10 Mr Moulds submitted that the presentation of the plaintiff, both in Court, and when he was examined by a number of the practitioners, was different from the activities he was able to freely display on lengthy surveillance video. He submitted that there was an element of conscious exaggeration, although conceded that the exaggerated presentation may be related to fear avoidance behaviour, part of his psychological condition.
11 Video surveillance film over the period May 2015 to November 2016 was shown. I will not summarise all of the activities displayed. On several occasions, Mr Singh was seen refilling his vehicle at a service station, bending low to undo and do up the gas nozzle. On one occasion, he knelt on the ground. He also bent forward for a time.
12 Over several days in July 2016, he walked in a relatively free manner for a considerable period which he later thought was two to three kilometres. In my assessment, it was at least that distance. On other occasions, however, he was walking in a slow manner, easing himself in and out of his car, consistent with the presentation to medical practitioners. In cross-examination, he said he had been advised to walk and did so every day. He said he could walk 1000 steps (about one kilometre). I did not view his capacity to walk longer distances on a regular basis as significantly affecting his credit. I accept that on some days, he was able to walk more freely than on others. Perhaps he was more restricted earlier in the mornings than in the afternoons. At one point in the cross-examination, it was suggested that he purposefully walked in a slow manner, limping as he went, while approaching a medical examination. I was unable to detect that from the video surveillance.
13 Although it was not clear from the surveillance, it was put to him at one point he sat on a park bench for forty-five or so minutes. He said that he would quite often sit, for a break, for thirty minutes or so but not as long as forty-five.
14 In November 2016, he went to a gymnasium and was filmed firstly walking on a walking machine at a brisk pace and then, for a few short spurts, jogging. Mr Singh then stopped, affected by either the effort or back pain.
15 Having considered the surveillance, I am of the view it does not significantly affect Mr Singh’s credibility. I accept that bending low to fill his car at the service station, and jogging on a treadmill, would have placed strain on his lower spine, and was inconsistent with the medical histories. However, he undertook those activities for only a brief time.[2]
[2]He told Dr Bloom he was able to squat and kneel although it exacerbated his symptoms – DCB 80
16 It was also put to Mr Singh that in contrast to his evidence to the Court that he had used marijuana on only one occasion, he had told a number of doctors that he had used marijuana occasionally, that is, on more than one occasion. Again, I do not see this as a significant credit issue.
Disentanglement
17 There is no doubt Mr Singh has a significant depressive condition. He had depressive symptoms as a result of the breakdown of past relationships, but there was a serious aggravation related to his physical injury.
18 Mr Moulds’ point is that the consequences he claims in respect of the physical injury are related to the psychological disorder. He relies on the opinion of Dr Michael Bloom in this regard.
19 Mr Singh admitted in his affidavit[3] that he had become significantly depressed because of his ongoing back pain and disability. He has contemplated suicide. He has been treated by Dr Sue Jeavons, psychologist, who he first saw in 2014. Dr Jeavons said the physical injury had placed severe limitations on his lifestyle. She assessed him as suffering Depression and Anxiety, at extremely severe levels.[4]
[3]PCB 10
[4]PCB 28
20 His treating general practitioner, Dr Manjula Kodippiliarachchi, noted that his mental health had deteriorated over the years. He prescribes anti-depressant medication.
21 Dr Debbie Kesper, a rehabilitation medicine physician, who treated Mr Singh in 2015, noted that he had a perception of re-injury, despite being told that was unlikely. A report from Bendigo Health of September 2015 noted that Mr Singe was experiencing fear avoidance behaviour.
22 Mr Moulds referred to the comprehensive report of Dr Michael Bloom, an occupational physician, of May 2018. He was provided with a wide range of reports and other materials,[5] and on examination, noted Mr Singh as deeply depressed, with suicidal tendencies. Dr Bloom reported abnormalities on physical examination, including a claimed tenderness over the entire spine. He said Mr Singh was showing severe fear avoidance behaviour, in the context of a complex personal psychological situation. He diagnosed a psychologically-based Chronic Pain Syndrome, and said that his level of pain and disability could not be explained on physical grounds. He said further, that the clinical presentation was dominated by non-organic behaviour. Mr Singh’s perception of pain and disability was disproportionate to his injury.
[5]Defendant’s Court Book (“DCB”) 78
23 Mr Mighell, for the plaintiff, submitted that Dr Bloom’s opinion stood in stark contrast to the opinions of the other practitioners, in particular the treating practitioners, Dr Kodippiliarachchi, the general practitioner; Mr Mark Lamb, the neurosurgeon who treated Mr Singh in 2014; Dr Sue Inglis, rehabilitation physician; Dr Debbie Kesper, rehabilitation medicine physician, and Dr Joseph Slesenger, the consultant occupational physician. While acknowledging that Mr Singh had significant depression, they all diagnosed him as suffering chronic low-back pain caused by an aggravation of underlying disc degenerative disease at L4‑5 and, according to some practitioners, nerve root compression causing symptoms down his legs.
24 While I accept that his underlying psychological depressive condition is playing some role in his physical symptoms, and further accept that he displays some fear avoidance behaviour, I am satisfied from the reports of the treating practitioners that, overwhelmingly, his condition relates to a physically-based injury at the L4-5 disc and with some compression of the exiting L5 nerve. In accordance with the principles established by Meadows v Lichmore Pty Ltd,[6] given I am satisfied that his condition has a substantial organic basis, it is not necessary for me to undertake a further disentangling exercise.
[6][2013] VSCA 201
Loss of earnings
25 Sensibly, Mr Moulds conceded Mr Singh did not have the capacity to return to his previous employment with heavy equipment. However, he said Mr Singh did have the capacity to return to a range of lighter jobs which were identified in the various vocational reports.[7]
[7]DCB 104-137
26 Dr Kodippiliarachchi noted that it was extremely unlikely Mr Singh would return to any meaningful work.[8] Mr Moulds submitted that that practitioner had not taken into account or considered the effect of Mr Singh’s psychological condition in assessing work capacity. However, in the context of his report, I am satisfied that that assessment is based upon his physical spinal condition.
[8]PCB 30
27 In her last report of November 2015,[9] Dr Inglis said Mr Singh was unfit to participate in full-time work, and given his age, it was unlikely he would find employment in the future either on a full-time or part-time basis.
[9]PCB 68
28 In a number of comprehensive reports, Dr Joseph Slesenger, occupational physician, made an assessment of various areas of employment which had been suggested by the defendant’s vocational assessors. He rejected potential areas of employment of general clerk, receptionist, switchboard operator, call centre operator or rental sales person on the grounds that Mr Singh either did not have sufficient experience or would not be able to perform the roles because of his back injury.
29 Dr Andrew Miller, a general practitioner, who saw Mr Singh on a number of occasions in 2015 and 2016, thought he had the capacity for employment, albeit limited, within various restrictions including:
· avoid lifting more than 5 kilograms;
· avoid forceful pushing or pulling;
· avoid prolonged static postures such as sitting or standing for more than fifteen minutes; and
· avoid movements of his back beyond a comfortable range.
30 In relation to the proposed areas of employment, Dr Miller considered that the jobs appeared to be sedentary to light, and Mr Singh had the capacity to work subject to the restrictions which he had outlined.
31 Dr Graeme Doig, orthopaedic specialist, who examined Mr Singh in 2016, said he had suffered an L4-5 intervertebral disc injury which was unlikely to improve. He suggested a limit in lifting of 10 kilograms, restrictions in pulling and pushing, with limited bending, twisting and squatting. He noted Mr Singh would need breaks from prolonged sitting, standing and driving.
32 Finally, Dr Bloom placed a range of similar restrictions on Mr Singh’s work capacity, including avoiding prolonged static posture, limiting lifting and manual handling to 10 kilograms and to avoid repeated bending and twisting. He thought that, from a physical point of view, and setting aside the psychological issues, Mr Singh had the capacity to work in the areas identified by the vocational assessors. He said:
“From the purely physical perspective only, and notwithstanding the adverse psychosocial factors and adverse psychological response, I believe that this man would have considerable functional and work capacity, and working within the listed conditions and constraints, I believe that he would not be at risk of further injury or aggravation. Indeed the longer this man remains out of the paid workforce, the greater the risk to his long-term health and wellbeing, and because it has been 5 years, his realistic changes of re-entering the workforce are now minimal.”[10]
[10]DCB 89
33 In 2014, Mr Singh undertook an occupational health and safety TAFE course. He said he was not able to complete the course as he was not able to sit for long periods, and the medication he took affected his capacity to concentrate. He also had difficulties using the computers. He has not undertaken any courses since, nor applied for any jobs. In the course of cross-examination, he said that he did not think he had the physical capacity to undertake his former heavy work, in respect of the lighter suggested jobs, had no experience in handling customers, would not be reliably able to turn up for work each day and had little in the way of computer skills.
Range
34 Given the conclusions I have come to in relation to Mr Singh’s work capacity, it is unnecessary for me to determine whether the consequences of the physical injury achieve the “very considerable” statutory requirement.[11]
[11]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]
35 However, I accept Mr Singh suffers significant constant low-back pain, aggravated by a range of activities, for which he takes considerable quantities of pain-relieving medication. I accept he has referred pain into his legs. He has had extensive conservative treatment with pain management and rehabilitation practitioners, and a number of steroid injections which have provided little assistance.
36 I accept that there are a range of domestic and social activities which are restricted, as set forth in his affidavits. I accept the opinion of most practitioners, in particular the treating practitioners, that the source of the pain is the L4-5 disc where he has suffered an aggravation of the underlying degenerative disorder.
37 In these circumstances, I am satisfied that he meets the statutory test for pain and suffering.
Analysis and conclusion
38 I accept Mr Singh suffered a significant injury to his lower spine in the workplace incident of April 2013. I further accept that he has suffered a significant psychological reaction to that injury, although the chronic pain, and restriction upon his various activities, is very largely related to the physical, rather than the psychological injury.
39 There is no issue that Mr Singh is unable to return to his former heavy employment with large machinery.
40 The critical issue in this application is the extent to which he has a work capacity for a range of lighter jobs.
41 Mr Singh was born in India and has had only a limited education. His work experience has been largely in the area of labouring or working with heavy machinery. I accept he has little if any computer skills, and has a limited capacity to work in an employment environment where he is required to talk to clients, sell products, or work as a receptionist. In my view, it is unrealistic for a man of his age and background to have the capacity to undertake this work.
42 I accept Dr Bloom’s report is extensive, current and that he has been provided with a raft of relevant reports and information. However, he is the only practitioner who comes to the conclusion Mr Singh’s presentation is largely psychologically based. I prefer the opinion of, in particular, the treating practitioners, that he has only a modest work capacity, and then with significant restrictions.
43 I am of the view that Mr Singh does have some work capacity, taking account of purely his physical symptoms, but that that capacity is minimal, given the nature of the injury he has suffered, the restrictions that injury imposes and his work and education background. I am of the view that as a result of the physical injury, his work capacity has been reduced by more than 40 per cent.
44 In those circumstances, his application, both in relation to pain and suffering and economic loss, succeeds.
45 I shall make appropriate orders.
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