Suyal v Victorian WorkCover Authority
[2021] VCC 53
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02973
| NEHA SUYAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2021 | |
DATE OF JUDGMENT: | 5 February 2021 | |
CASE MAY BE CITED AS: | Suyal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 53 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine in the course of cleaning duties at hotel – pain and suffering only – significant gap between injury and radiological investigation and treatment – pain increased after return to gymnasium activities – whether those activities led to a distinct and separate injury – claim unable to work in the fitness or sports management area – whether consequences of work injury “very considerable”
Judgment:Leave granted in respect to pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Ms K Karadimas | Arnold Thomas & Becker |
| For the Defendant | Mr T Storey | Russell Kennedy |
HIS HONOUR:
Preliminary
1 Ms Neha Suyal is now thirty-two years of age. She was born in India and came to Australia in October 2015.
2 While in India, she obtained a Degree in Physical Education and a Post-Graduate Diploma in Fitness Management. She worked for a period in corporate and school sports events. It was her ambition to pursue a career in physical education or sports management.
3 After coming to Australia, she started work as a room attendant at a hotel in Southgate, Melbourne in January 2016. She worked four days a week cleaning rooms.
4 Ms Suyal was fit and active, and in particular, had no prior back problems.
5 On 27 February 2016, while cleaning a room at the hotel, she slipped and fell, hitting her right knee on the corner of a bath. She said she felt a “sudden electrical shock pain” in her lower spine. She stopped work and was taken to The Alfred hospital. She was discharged after pain relief was provided. According to the notes of the Emergency Department of The Alfred hospital, Ms Suyal complained of forearm tenderness and lumbar back and midline cervical spine tenderness due to “whiplash”.[1] The lumbar tenderness was over the L4‑5 region. The impression was of minor muscular trauma.
[1]Defendant’s Court Book (“DCB”) 20
6 Some days later, she went to see her local general practitioner, Dr Marian Isaac, as her back problem had not improved. Examination revealed tenderness over the cervical and lumbar spines. A CT scan to those areas was suggested, but Ms Suyal did not make an appointment for the scan.
7 There was a further attendance with Dr Isaac on 30 March 2016. That doctor noted:
“[S]till gets back pain if she sits long hours
did not go for scan yet
advised to have scan done.”[2]
[2]DCB 22
8 There is no evidence of further attendance on that or any other practitioner until September 2017.
9 Ms Suyal did not return to work at the hotel, but rather obtained employment with Trucare Drycleaners. She changed employment because she said the work was less physically demanding.
10 After coming to Australia, she commenced studying at La Trobe University, undertaking a Masters in Sports Management. She continued those studies and completed her Master’s degree after the injury.
11 In about mid 2017, Ms Suyal returned to a gymnasium at the suggestion of her partner to regain some fitness and muscle tone. After she started exercising, she said she felt an “electric shock pain into my legs, particularly the left leg”.[3] At that time, she was referred for CT investigation and an MRI scan. She was sent by her general practitioner to Mr Yagnesh Vellore, neurosurgeon, in December 2017.
[3]Plaintiff’s Court Book (“PCB”) 8
12 On a number of occasions in 2016 through to 2019, she returned to India to be with her family. She said these trips did not involve any significant physical activities. She has also more recently travelled interstate on a number of occasions.
13 Ms Suyal complains of continuing low-back pain which she says started at the time of the work injury. She has been prescribed Lyrica and more recently takes over-the-counter Nurofen. She claims to have put on weight. She has remained working for Trucare Drycleaners and currently works between 30 and 40 hours per week. She claims to be restricted in a range of recreational and domestic activities.
14 Significantly, she says she has lost her prospect of a career in the fitness or sports management.
Application
15 This is a serious injury application. Given Ms Suyal’s continued employment, the application is in relation to pain and suffering only. The body function said to be lost or impaired is the spine.
16 Mr Storey, counsel for the defendant, identified the issues in the application as:
·Ms Suyal suffered a separate and distinct injury to her lower spine when she undertook gymnasium exercises around August 2017, the original injury which occurred in the course of her hotel duties having largely resolved.
·When looked upon alone, the consequences of the work-related injury did not achieve the “very considerable” test.
17 The manner in which this application was conducted was unsatisfactory. It was not until the case was opened by Mr Brett, on behalf of the plaintiff, and a response was made by Mr Storey, on behalf of the defendant, that the real basis upon which the application was contested, that is the imposition of a new and separate injury, became clear. This causal issue was not addressed in the plaintiff’s affidavits, save briefly in her final affidavit, sworn 27 January 2021.[4] Further, the various consultant medical practitioners paid little attention to the issue in their reports.
[4]PCB 51, paragraphs 5-6
18 It would have been preferable had there been some form of pleading at an earlier time so that this causation issue could have been addressed.
19 Much then hangs upon my determination of the credibility of the plaintiff. If her evidence that the gymnasium exercises in 2017 were no more than an aggravation of her established lower back injury, then her application is likely to succeed.
The Plaintiff’s evidence as to the consequences of the work injury
20 According to her affidavits, the plaintiff said that after the work injury she was unable to return to her work cleaning hospital rooms, as her lower back was too sore. There was then some easing of the back pain but it continued to trouble her. She was unable to remain fit and gained weight.
21 In about August 2017, she returned to her gymnasium and suffered an “electric shock pain into my legs, particularly my left leg”.[5] She was referred to the neurosurgeon, Mr Yagnesh Vellore, in December 2017.
[5]PCB 8
22 At the present time, Ms Suyal suffers pain in her lower back and left and right hips. It is an aching pain, but is aggravated when bending, lifting, running or maintaining the same posture for any period. It is difficult to sit or stand for more than 20 minutes.
23 Ms Suyal continues to see her current treating general practitioner, Dr Joseph Philip, regularly, undertakes physiotherapy and has a personal trainer.
24 The back pain causes difficulty when sleeping and she frequently wakes in pain. Performing the more strenuous domestic duties is difficult.
25 Ms Suyal is unable to wear high-heeled shoes because they increase her back pain. She has altered sensation in her left leg, which has caused her to stumble and twist her left ankle.
26 Prior to the incident, she played volleyball weekly and ran several times a week. She is unable to pursue these activities but occasionally uses a treadmill. Her intimate relations with her husband are affected.
27 Ms Suyal claims the most significant consequence of the injury is that she is unable to return to a career in physical fitness education or management. She completed her Master’s qualification in Australia after the injury, but to undertake employment in that area requires a level of physical fitness she is not able to achieve. She is also concerned about the prospect of back pain in pregnancy.
28 Before the injury, she enjoyed holidays in South East Asia, riding motorbikes and trekking, but is unable now to do this. She also took long bus and train journeys, but this is now restricted.
29 At the present time, she no longer takes Lyrica, but does take Nurofen of an evening.
30 As a result of COVID-19 restrictions she is unable to go to the gym, and has suffered an increase in lower back, right hip and right leg pain. She has gained approximately 15 kilograms in weight and has lost confidence. Her husband does the bulk of the domestic duties, although she continues to cook. She remains unable to return to volleyball, badminton and other physical exercises.
31 In cross-examination, Ms Suyal accepted that she started work at the drycleaners in March 2016. She said the work is more sedentary and much of it is working at a desk. She is able to stand and sit through her shift. There are three other women working at the drycleaners, and the workload is distributed.
32 Ms Suyal accepted that shortly after the incident she was referred by Dr Isaac to undertake scans of her back. She said she only had limited health cover and was unable to afford the cost of the scans.
33 Ms Suyal accepted that for eighteen months after the incident, save for the initial attendance at hospital, and two attendances with Dr Isaac, she did not go to a doctor nor receive any treatment. She said she got pain “once in a while” in the lower back, but not too often. When she bent forward or was involved in physical activities, she got back pain. She took painkillers from time to time. Over this period, she said her back pain was manageable, providing she was not involved in any physical activity.
34 Ms Suyal acknowledged it was not until her final affidavit, sworn 27 January 2021, that there was any reference to her returning to India after the workplace incident. She accepted she travelled to India for five days in June 2016. She said she took the trip as she felt lonely and required emotional support. The trip involved a flight to India, and a further flight within India to her home.
35 Ms Suyal accepted, in addition, there was another trip to India in late 2016 for a month. She stopped in Thailand for several days on the way home. There was another trip to India in February 2018, with a stay in Bali for several days beforehand. She remained in India for three months. There was a further trip in February 2019 for a month. She shopped, walked and spent time with her family. She accepted there was no reference to these various trips, save for the first trip, in her affidavits. She said she was not asked about them.
36 Ms Suyal said that her family had requested each year that she return to see them. She is her parents’ only daughter. She could not refuse their request and said she was also emotionally unstable.
37 On a number of other occasions, Ms Suyal also travelled interstate to Sydney and the Gold Coast.
38 When she resumed her regime in the gym around August 2017, her participation involved “functional activities”. She did not use gym equipment or lift weights. Ms Suyal did a range of floor exercises, including push-ups, squats, jumping jacks and mountain climbers and did some work on the treadmill. She said she started to get an electric shock in her back. As a result of this, Ms Suyal returned to her doctor and obtained a CT scan and x-rays. The pain in her back worsened.
39 After the work incident she needed pain relief to help with sleep. She said her back pain was “manageable” and not particularly troublesome, as she was not involved in physical activities.
40 It was put to Ms Suyal that the pain suffered after her gymnasium activities was separate and different from that suffered in the workplace incident. She disagreed with this. At the outset she said she thought her original back injury was not serious, but it became worse at the gymnasium. She said that after the work fall, she had pain, particularly when lifting or bending down to pick something up from the floor. However, she agreed that after she commenced work at Trucare, she was able to handle the work “okay”. The pain was not “bad” but she took painkillers.
41 Ms Suyal had six or so months off work with Trucare from November 2017 until May 2018, as she said her back pain was “unbearable”.
42 It was pointed out that at The Alfred hospital after the workplace incident, there was no reference to any radiation of pain into the buttocks or legs. When she returned to her general practitioner in 2018, she said there was pain down the left and right sides. She said the pain was in the same area after the gymnasium exercises as it had been before.
43 Ms Suyal said she works 30, up to 40 hours per week at the drycleaners. She does some grocery shopping by herself, usually purchasing only small items. She still attends the gymnasium and has a personal trainer. Ms Suyal said she enjoyed the work in hotel cleaning and would have pursued it had she not suffered the injury.
44 In re-examination, Ms Suyal said she hoped to work in the fitness area, organising events for schools and companies. She said she cannot be a physical education teacher with children, is unable to run as before, and cannot lift weights. When on holidays, she could not go trekking nor paragliding.
45 The pain in her lower back radiated into her buttocks. This same area became worse after she undertook the gymnasium program.
Medical opinions
46 In a report of 9 March 2018, another doctor at the same clinic as Dr Isaac noted that Ms Suyal was certified as being unfit for any duties on 6 March 2016.
47 Mr Vellore, neurosurgeon, saw Ms Suyal on 18 December 2017. He obtained a history of the work-related back injury. Ms Suyal described, from that time, having back pain with radiation into the left leg. He noted a CT scan of the lumbar spine performed 15 September 2017 showed a mild broad-based disc protrusion at L4-5 and a focal disc extrusion at L5-S1 impinging the left L5 nerve. An MRI scan performed shortly afterwards on 3 December 2017 did not report disc bulge nor herniation at either L4-5 or L5-S1. However, when Mr Vellore viewed the MRI scan, he said it did appear to show a mild bulge at the left L5-S1 foramen. He noted:
“… As her symptoms are not too severe, she was happy to continue with conservative therapy for the interim. Should her symptoms not improve or should they have a flare-up, I recommended that she could try a course of neuropathic pain medications such as Lyrica or gabapentin or perhaps a CT-guided left L5 nerve root injection. The surgical option given to her included a left L5-S1 microdiscectomy and rhizolysis of the L5 nerve root. She wished to continue with the conservative therapy at that stage. I have not seen her thereafter.”[6]
[6]PCB 20
48 At the time, Mr Vellore thought Ms Suyal did not have a capacity for pre-injury employment but could work avoiding “heavy lifting, bending, twisting, pushing, pulling, repetitive activities, prolonged sitting and standing and any activity that was likely to exacerbate her back pathology”.[7]
[7]PCB 20
49 Another treating general practitioner, Dr Joseph Philip, in his report dated 17 August 2020, said he first consulted Ms Suyal in 2017, when she presented with a back injury said to be work related. He noted severe symptoms of right-sided lower limb weakness, sciatica-like nerve pain and loss of power of her right lower limb. Dr Philip described the injury as a long and protracted one, which compromised her activities of daily living and enjoyment and quality of life.
50 Mr Douglas Gardiner, orthopaedic surgeon, provided reports of September 2019 and November 2020. He received a history that after the work incident there was some improvement in Ms Suyal’s back pain, as a result of which she obtained work at the drycleaners. He noted in August 2017, she went to the gym to lose weight, but developed swelling in her right knee and recurrence of lower back pain.
51 In 2019, Ms Suyal complained to Mr Gardiner of moderate low-back pain with some radiation into the left thigh and sole of her left foot, as well as radiation of pain into the right buttock. He noted she was taking Lyrica and was doing stabilising exercises. Mr Gardiner diagnosed an abnormality at the L5-S1 disc evident from the radiology without convincing evidence of impingement of nerve roots, and no evidence of radiculopathy. He thought there had been a disc extrusion. He concluded that the workplace incident was the entire cause of her then current symptoms. He thought there would be ongoing discomfort in the spine for the foreseeable future, but that she would not require surgical intervention.
52 In 2020, Ms Suyal did not report to Mr Gardiner, any significant change to her symptoms.
53 Ms Suyal was examined by Dr Ralph Poppenbeek, occupational physician, in June 2018. He obtained a history that Ms Suyal had returned home to India shortly after the injury. Further, Ms Suyal said she developed left leg pain after the work injury, which became more troublesome in February 2017, when she was walking more than usual. Dr Poppenbeek noted:
“The major issue in relation to the current claim, however, is left-sided low back pain and right-sided mid-back pain, the latter from about December 2017 and the left low back pain from the time of work injury in February 2016. The pain radiates into the right buttock, but not into the thigh. There is pain in the posterior left knee, calf and ankle and lateral heel and medial foot. There is numbness in the sole of the left foot. There is sneeze pain, predominantly in the right low back and hip.”[8]
[8]DCB 7
54 Ms Suyal complained of sleep disturbance and restriction in the activities of daily living. Dr Poppenbeek said:
“I understand from her narrative that Ms Suyal states that her symptoms substantially increased both in distribution and severity in late 2017. I asked her why she felt this was the case because she gave no history of acute strain or injury prior to escalation of symptoms. She told me that she felt this had occurred because she stopped activity after the injury, presumably the injury in 2016, and then the symptoms returned when she recommenced gym and other activities in late 2017.”[9]
[9]DCB 7
55 Dr Poppenbeek concluded Ms Suyal suffered disc degeneration with a minor disc protrusion at L5-S1, which he said was related to her work injury. He did not think the right hip and left ankle pain which developed in late 2017 were related to the work injury. He said that, in June 2018, her employment was a continuing contributing factor.
56 Mr Michael Dooley, orthopaedic surgeon, provided a report of August 2020. Ms Suyal complained to Mr Dooley of ongoing lower back pain, which at times affected her left leg and caused her to stumble. Mr Dooley said:
“… It is probable that Ms Suyal has early but definite developing and naturally occurring degenerative disc changes involving the low lumbar spine. I believe that she sustained a soft tissue injury to her lumbar spine in the work related episode. It is most likely that this involved a musculoligamentous strain type injury but it could have involved some aggravation of underlying degenerative disc change … .
…
In my view there is no evidence of objective neurological deficit affecting the lower limbs. There are inconsistent signs … In reality this is disc bulging consequent upon evolving degenerative change … Accepting that Ms Suyal sustained a soft tissue injury to her lumbar spine, as outlined above, it is my view that the constancy and intensity of her ongoing pain and her described disability are far greater than one would expect to see for her organic condition. I believe that she has had a psychological reaction to her situation and that this reaction significantly influences her ongoing symptoms … .”[10]
[10]DCB 15-16
57 Mr Dooley suggested she continue her exercise and fitness program.
Analysis of the medical evidence
58 Save in a general sense, no medical practitioner specifically focused on the events of approximately August 2017, when Ms Suyal attended a gymnasium program and suffered an increase in her lower back and referred symptoms. There was no examination as to how the increased pain came on, the activities that were involved at the time and where exactly that pain was experienced. Thus the medical opinions are not determinative on the issue of causation.
59 However, it is noteworthy that both Mr Gardiner[11] and Dr Poppenbeek[12] received a history of increased lower back pain and distribution of the pain to the lower limbs after the return to the gymnasium. Yet both attributed her lower back condition to the workplace incident.
[11]PCB 29
[12]DCB 7
60 I do not accept the opinion of Mr Dooley that at the present time Ms Suyal suffers no more than degenerative disc disease, the musculoligamentous strain having resolved; alternatively, psychological overlay is involved. He is the only practitioner to come to those conclusions.
Credibility of the Plaintiff
61 Mr Storey submitted I should have significant reservations about the credibility of Ms Suyal’s evidence. Save for a brief mention of her first trip to India in her most recent affidavit, there was no reference at all of the various trips to India, stopovers on the way, and the more recent interstate trips, in any of her affidavits. The implication of this failure suggests Ms Suyal was intentionally covering those activities, as they are inconsistent with her ongoing back pain.
62 There is merit in Mr Storey’s submission. In the normal course of events, a failure to disclose activities of that sort would affect the credibility of an injured worker. An explanation that the information was not disclosed because the question was not asked, would normally be met with scepticism.
63 The first matter to note is that to Dr Poppenbeek, in June 2018, Ms Suyal did say that she returned home to India in 2016 for an eight-month period. While the time spent there is not accurate, it would indicate a preparedness to disclose her travel to a medical practitioner.
64 As Mr Dooley observed,[13] there are not insignificant cultural and personal issues at play. It is noteworthy that Ms Suyal only came to Australia in 2015 to pursue her studies in physical education. Further, her then partner, now husband, remained in India, as did Ms Suyal’s family. I accept her evidence that they requested she return to India on a yearly basis. Although her command of the English language is good, she is not experienced in the WorkCover system, and I accept there are different cultural issues at play. She felt an obligation to her family as she said they were opposed to her coming to Australia in the first place. It is not surprising in those circumstances that she did not disclose as fully as she should, her travel to India.
[13]DCB 14
65 I further accept her explanation that while she did travel on a number of occasions, the travel did not involve demanding physical activities, such as trekking, motorbike riding and the like.
66 In these circumstances, I am not persuaded I should reject her evidence that she suffered continuing lower back pain from the time of the workplace incident, aggravated by her gymnasium exercise program in August 2017.
Analysis – causation
67 There are two aspects of the defendant’s contention that Ms Suyal’s current condition is as a result of a separate injury caused by her gymnasium exercises. The first is that aside from seeing her general practitioner on two occasions, she received no treatment, investigation nor referrals for a period of eighteen months after the work incident, despite being advised by her general practitioner to have radiological scanning. It was not until August 2017 that her treatment commenced.
68 The second aspect is that Ms Suyal was able to undertake work of 30 to 40 hours a week at the drycleaners and travel extensively over that eighteen-month period. By her own admission, the back pain over that period was manageable.
69 As stated, I accept Ms Suyal’s evidence that the pain in her lower back, with some referred pain, continued from the date of the workplace incident, although until she undertook the gymnasium course it was relatively manageable. I accept her evidence that she suffered particular pain bending forward to lift items or when she undertook more rigorous physical activities. While it is somewhat unusual that she did not seek medical treatment for a considerable period, and that she was able to work almost full-time hours and complete her physical education course, I accept she suffered ongoing back pain which affected her sleep and caused her to change jobs, over this period.
70 I am satisfied there was a significant increase in her symptoms when she attended the gymnasium in order to lose weight and enjoy better muscle tone. I am satisfied that what occurred was an exacerbation of the existing symptoms which had been grumbling along for the previous eighteen months.
71 Like Mr Gardiner and Dr Poppenbeek, I am satisfied that the workplace injury was a significant contributing factor to the problems she now suffers in her lower back and that the aggravation of the gymnasium was not a separate and distinct injury. Of course the time for assessment of the consequences of the work injury is as at the date of the application.
Analysis – seriousness
72 I accept the opinion of the treating neurosurgeon, Mr Vellore, that Ms Suyal suffered a disc bulge or extrusion at L5-S1, evident from the CT scan, although not as clearly defined in the MRI scan. I prefer the opinion of Mr Vellore and Mr Gardiner, whose reports I found comprehensive, that the disc injury was related to the workplace incident.
73 I accept Ms Suyal’s claims of ongoing pain and restriction in a number of activities. I accept her sleep is affected, as is her intimate life with her husband.
74 Of most significance, I accept that, as a result of the workplace injury, her career in physical education, or sports management, is at an end. She obtained several degrees in India, and then obtained a Master’s degree in Australia. I accept her evidence that it was her hope and ambition to pursue a career in this area and that she has now lost this. I view that as a significant consequence of her injury.
75 In these circumstances, I am satisfied that the consequences as to pain and suffering meet the statutory test. Leave to issue common law proceedings will be granted. I shall make consequent orders.
- - -
0
0
0