Tezeli v Victorian WorkCover Authority

[2017] VCC 1068

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION SERIOUS INJURY LIST

Revised Not Restricted  Suitable for Publication

Case No. CI-16-03749

LINDURIJE TEZELI  Plaintiff

v

VICTORIAN WORKCOVER AUTHORITY  Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATEOF HEARING:	2 August 2017
DATEOF JUDGMENT:	9 August 2017
CASE MAY BE CITEDAS:	Tezeli v Victorian WorkCover Authority
MEDIUMNEUTRAL CITATION:	[2017] VCC 1068

REASONS FOR JUDGMENT

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Subject:  ACCIDENT COMPENSATION

Catchwords:    Serious injury application – injury in the course of employment to lower spine – credibility of the plaintiff – whether refusal to accept job offer reasonable – whether consequences of lower back injury “very considerable” – whether 40 per cent loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37)

Judgment: Leave  granted  to  the  plaintiff  in  relation  to  pain  and  suffering and economic loss.

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APPEARANCES:Counsel  Solicitors

For thePlaintiff  Ms J M Forbes QC with Mr P A Czarnota

Henry Carus & Associates

For the Defendant  Mr P R Trigar  Lander & Rogers

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HER HONOUR:

Preliminary

1The plaintiff, Ms Lindurije Tezeli, claims to have suffered injury to her lower back over the course of her employment as a machinist working for the caravan manufacturer, Jayco. She started working there in January 2005. She reported the injury to her doctor around 2012, left employment in 2013 and has not worked since. In addition to the physical injury, she claims to have suffered a psychological reaction, in the nature of an Adjustment Disorder with Anxiety and Depression. She claims a range of domestic and recreational tasks and pursuits have been lost or restricted.

2This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Ms Tezeli’s employment.

3The body function said to be lost or impaired is the lower spine.

4In addition, Ms Tezeli claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.

5Ms Tezeli was the only witness called to give evidence and be cross-examined.

In addition, affidavits of herself and her husband, medical, radiological and vocational reports were tendered into evidence, together with surveillance video. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities

of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections in those authorities.

Relevant background

6Ms Tezeli was born in Macedonia and came to Australia in 1976 as a young child. She completed her schooling to Year 9 and worked as a machinist, a vegetable packer and flower picker before starting work with Jayco in January 2005.

7Ms Tezeli is married with three adult sons and grandchildren. Prior to her workplace injury, she generally enjoyed good health. She said she was house- proud and undertook a range of domestic tasks, both inside and outside the house. She enjoyed gardening, drove without difficulty and did the family shopping. Her life was centred around her family.

8Ms Tezeli had no prior problems with her lower back.

The injury and its consequences

9Ms Tezeli’s work with Jayco was often heavy. She would regularly carry considerable weights up and down stairs. She says she was required to sit for long periods at a desk working a sewing machine with heavy canvas. The desk was not appropriately ergonomically set up and she was forced to sit in awkward positions.

10Around 2010 or 2011, Ms Tezeli developed pain in her lower spine. She treated it with Deep Heat cream. She remained working her normal duties. Over time, she developed some pain into the right buttock and leg. She was noted limping at work and it was suggested she see the company doctor, Dr Harewood. She first saw him on 10 October 2012.

11Radiological scans were performed and Ms Tezeli was referred for physiotherapy. An MRI scan of the lumbar spine performed in November 2012 showed central canal narrowing at L3-4 and L4-5 without neural compression.1

1. Plaintiff’s Court Book (“PCB”) 35

She was  prescribed pain-relieving medication and referred to Mr Michael Johnson, orthopaedic surgeon, in December 2012. He thought that her leg pain was most likely as a result of compression of the L4-5 nerve root and suggested a lumbar epidural injection.

12In May 2013, Ms Tezeli returned to her usual general practitioner, Dr Roger Thornton, who had treated her since she was a child. She has remained in that doctor’s care to the present time.

13In April 2013, Ms Tezeli was referred to Dr Mark Patrick, rheumatologist. He thought the problem was with the facet joints at L4-5. He prescribed Prednisolone and hydrotherapy. He saw her on a number of occasions in 2013 and considered that the problems related to an aggravation of the underlying degenerative disease, in particular, at the facet joints. He suggested physiotherapy and a multidisciplinary functional restoration and rehabilitation approach.

14Ms Tezeli continued seeing Mr Johnson on a number of occasions in 2013. He thought that there was probably a lower lumbar nerve root compression secondary to canal stenosis at L4-5. He said she had a moderate level of disability, and noted trouble with sitting. A number of treatment options were discussed. He thought that she would have a lot of difficulty returning to her work as a machinist.

15Dr Roger Thornton, general practitioner, has continued to treat Ms Tezeli. He said that she remained in considerable back pain, with pain extending into the right and, more recently, the left leg. He disagreed with the recommendation from Dr Boffa, a rehabilitation doctor, that she should return to some form of work. He thought she had no capacity to return to work as a machinist, and any form of employment would be difficult. He noted there had been consideration given to surgical intervention by Mr Drnda, a neurosurgeon. Eventually, he referred her to Dr Clayton Thomas for rehabilitation.

16Dr Thomas recommended Ms Tezeli purchase a walking stick to help her day- to-day mobilisation and reduce the risk of falling, and sent her for physiotherapy. In Dr Thornton’s report of March 2017,2 he noted she had completed the pain- management course with Dr Thomas.

17This year, Dr Thornton prescribed her medication, Gabapentin, Palexia, Tramadol and Celebrex, together with the antidepressant, Pristiq. He said that she had a significant ongoing disability with chronic pain in her lower back, which he said was as a result of lumbar intervertebral disc lesions and spinal canal stenosis. He referred her to a psychologist for treatment of her Anxiety and Depression. He concluded, in 2017, that she had no capacity for gainful employment, currently, or into the foreseeable future.

18According to the report of Dr Clayton Thomas, rehabilitation consultant, he first examined Ms Tezeli in October 2015, where she complained of work-related lower back pain. He noted an MRI scan of March 2015 showed disc bulging at L4-5, and canal stenosis. He thought the L4-5 level was the likely source of her back pain. He considered the possibility of surgical intervention, but said it was important to have a nerve root block to determine whether surgery was likely to be successful. He tried a range of medications. He considered she had no work capacity. He noted that Ms Tezeli had decided not to have the nerve block, which he described as totally understandable. After the conclusion of the pain-management program, he said she was still suffering significant pain. The program was designed to manage long-term pain rather than provide relief. The pain-management program occurred over six weeks in the middle of 2016. Dr Thomas said Ms Tezeli was aware of the strategies in order to help her manage her pain and discharged her into the care of Dr Thornton.

19Ms Tezeli has been treated by a psychologist, Dr Richard Young, from 2013.

He  thought  she  was  suffering  an  Adjustment  Disorder  with  Anxiety  and

1. PCB 48

Depressed Mood.

20In November 2014, Dr Thornton referred Ms Tezeli to Mr Craig Timms, neurosurgeon. He arranged further MRI scans, which he said showed lumbar canal stenosis at L4-5, which is where he thought her symptoms were coming from. He discussed ongoing physiotherapy, massage and swimming. Of last resort, he thought there was the prospect of a laminectomy at L4-5, but when application was made to the WorkCover insurer, approval was refused.

21Dr Thornton has continued to certify Ms Tezeli as unfit for any duties through to the present time.

22In relation to the consequences of her injury, Ms Tezeli said she suffers constant pain in her lower back with referred pain into her buttocks and further down each of the right and left legs. She says sitting is uncomfortable for any length of time, and she experienced sharp aggravating pain. She walks with a limp, which she describes as a “waddle”. She has gained weight and leads a very sedentary life. It is difficult for her to bend over and it is hard to brush her hair. She rarely now  wears high-heeled shoes and is restricted in a range of household chores which she enjoyed before her injury. She cannot vacuum or sweep the floors. She now only cooks smaller light meals. She lives with her sons and daughters-in-law, who undertake most of the heavier domestic chores. She no longer is involved in gardening, which has become overgrown. Driving is painful, and she has to stop regularly. Some time ago she sold her car.

23She is unable to do to the shopping by herself. She says she cannot lift a shopping basket, and one of her sons or her husband has to carry it for her. Her sleeping is affected and she wakes regularly. She takes Valium to assist with sleep before going to bed. Her intimate relationship with her husband is affected. She has become anxious and depressed. She used to enjoy work and is upset that she can no longer carry out her work.

24When it was proposed that she return to work on lighter duties, Ms Tezeli consulted Dr Thornton, who told her she ought not to return. She takes a range of medication, both pain-relieving and anti-inflammatory. Her lower back pain is constant and present every day.  She feels tired and drowsy.

25Ms Tezeli has difficulty practising her Muslim faith, in particular, when she is required to bend for prayer or wash.

26She does not believe she has the capacity to undertake even lighter employment.

Consultant medical opinions

27I have referred to the opinions of the various treating practitioners.

28The plaintiff was examined by Dr Joseph Slesenger, occupational physician, in January 2017. He obtained a history of the plaintiff having to sew canvas cloth in the construction of caravans. He said the job required constant standing, reaching forward, repetitive bending and twisting and manoeuvring heavy weights. He said the workstation was not well designed and Ms Tezeli had difficulty reaching and bending. He was advised of the onset of symptoms in 2010, with further deterioration in 2012 and 2013. The pain was in the lower back, with referred pain down the right leg. He noticed that she walked slowly, with a pronounced right-sided limp, using a walking stick.

29Dr Slesenger formed the view that Ms Tezeli could not return to her pre-injury duties. He was provided with a Vocational Assessment Report of Ms Katarina Jakovljevic, which suggested a number of alternative areas of employment, including:

·    ironer (home-based)

·    sales support assistant/mystery shopper

·    crossing supervisor

·    sewing machinist

·    retail sales

·    customer service officer.

30Dr Slesenger analysed the various tasks involved and determined that Ms Tezeli would not be fit for any of the roles suggested.

31Dr Peter Blombery, consultant physician (vascular disease), examined Ms Tezeli in December 2016. He noted ongoing pain in the lower back radiating to both legs, more marked on the right side. He also noted she walked with a walking stick in her left arm. He thought the problem was an aggravation of previously asymptomatic degenerative changes in the lumbar spine caused by the heavy work at Jayco. He thought the pain was caused by compression of the right L5 nerve root. He thought there was no place for surgery.

32Dr Blombery said she had no capacity for previous employment and a very limited capacity for alternative suitable employment. He said she would not be able to do any job which required lifting of more than 1 or 2 kilograms. She could not stand or sit for significant periods and would not be able to work more than four to five hours a week within those limitations. He concluded she had virtually no capacity for suitable employment. He thought the prognosis was poor.

33The plaintiff was examined by Dr Umberto Boffa, occupational physician, in August 2013. Having examined the radiology, he considered Ms Tezeli could not return to her pre-injury duties and hours but that she did have a capacity for modified pre-injury work, if she could sit and stand for varying periods and providing she avoided lifting, bending, pushing and pulling. In September 2013, he went to Jayco’s worksite and examined a range of suggested modified duties. These included lighter tasks where there was rotation and she was able to sit and stand and avoid lifting, bending, pushing and pulling. The tasks included lighter construction jobs, unfolding fabric, placing curtain rings, using a sewing machine, making buttons and cutting cloth. He suggested she resume

at four hours, three days a week, gradually increasing to full time.

34Dr Dominic Yong, occupational physician, saw Ms Tezeli in April 2017. She told him that she had constant lower back pain radiating into both buttocks, with shooting pains into the right and, to a lesser extent, left leg. She said she could stand and walk for thirty minutes and drive for fifteen minutes. He considered that she had likely suffered a disc injury to the lumbosacral spine, without radiculopathy. He said she could perform a range of tasks, providing she was able to vary her posture regularly, work reduced hours, avoid bending and twisting of the back, pushing and pulling, and lifting weights of more than 4 kilograms. He thought the tasks outlined in the report of Dr Boffa were suitable. He thought she should participate in an activity-based recovery program, including home exercise, swimming and walking. When the various alternative areas of employment were suggested, he said she could work as an ironer (home-based), sales support assistant, crossing supervisor, retail sales assistant and customer service officer, given they all had minimal manual handling requirements. In relation to sewing machinist, he said this role would require assessment. He suggested a graduated return-to-work program, commencing three-hours shifts for three days per week, increasing to half of the working week within three to four months.

35An opinion of a Medical Panel of 5 December 2014 was tendered. There were several doctors involved in the Panel, including a musculoskeletal physician, general practitioner, two psychiatrists and an orthopaedic surgeon. The Panel considered the plaintiff had an unresolved soft tissue spinal injury without radiculopathy. The return-to-work program, as referred to by Dr Boffa, was considered suitable.

The credibility of the Plaintiff

36Ms Tezeli gave evidence in a relatively straightforward manner. She confirmed in cross-examination that she was unable to do very much in the way of everyday domestic and recreational activities. She walked with a limp, although

had good days. She was not able to go to the markets as she used to, and shopping was difficult, as she could not lift shopping baskets, although could lift light items.

37Surveillance film taken September 2013, July 2014 and May 2017 was shown.

In the first film, Ms Tezeli was seen walking slowly out of her house without a limp and not carrying a walking stick. She was able to carry a shopping bag in her right hand and later, carrying several shopping bags in each hand. It is difficult to tell how heavy they were. In July 2014, she was seen walking with another person, reasonably briskly and without a stick or a limp. She was able to walk to a local shopping centre over twenty or so minutes. She walked about the shopping centre, looking into various shops. She then walked home again without a limp or a stick. Near home, she took several shopping bags from the person she was walking with. In May 2017, she was seen walking again without a limp or a stick.

38As to the various alternative areas of employment suggested by the vocational assessors, she said she would find it difficult to do many of the jobs. She did not understand what a “mystery shopper” was. She had no training in sales. She said she thought she might be able to work as a crossing supervisor but was uncertain. She considered she would not be able to work at a sewing machine.

39Mr Trigar, for the defendant, suggested there was a significant inconsistency between what was depicted on the film, and Ms Tezeli’s history to the various doctors, in particular, that she was shown on the film, on a number of occasions, walking without a limp and walking stick.

40I accept that there were some inconsistencies in the presentation by Ms Tezeli in the film compared to the histories that she gave to various doctors and her affidavit evidence. From time to time, treating and consulting practitioners recorded that she walked with a limp.  There is no limp evident in any of the

film. However, in cross-examination, she said that she had good and bad days. Mostly, in the surveillance film she walked at only a modest pace, although to and from the shopping centre, she walked a little more briskly.

41Surveillance film is a snapshot in time. In fact further surveillance was undertaken, although the plaintiff was not sighted on those occasions. I am satisfied that while there were some inconsistencies, they may be explained by the fact that she had days when she was able to walk without restriction and then other days when she was not. According the report of the treating general practitioner, Dr Thornton,3 he had advised her to use a walking stick.  All in all, I am not satisfied the plaintiff’s credibility is significantly affected by the surveillance film.

Analysis

42I am satisfied, given the opinion of most practitioners, that Ms Tezeli suffered an injury in the area of the L4-5 disc as a result of her repetitive and strenuous work for Jayco over a number of years, as a result of which more significant symptoms set in around 2012. There is support in the radiological investigations for those opinions, in particular, the MRI scan examinations of 2015, which showed spinal canal stenosis at L4-5, causing impingement of the L5 nerve roots bilaterally. Most practitioners accept this is the cause of her pain and disability. It is significant that Mr Drnda, neurosurgeon, considered the possibility of surgery to relieve her symptoms, particularly in relation to the referred pain to her legs, although that did not take place.

43Ms Tezeli has had a raft of conservative treatment, including extensive medication and a six-week rehabilitation course through Dr Clayton Thomas in 2016. It was noted that her attendance throughout the course was good, that she was involved in all of the sessions, and was able to understand the strategies for dealing with her pain.

44While I bear in mind the opinions, in particular, of the consultant occupational

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physicians, Doctors Slesenger, Boffa and Yong, in this case, I found the opinions of the treating practitioners, in particular, those who have treated the plaintiff over a considerable period, of most assistance.

45Dr Thornton, who has treated the plaintiff over most of her life, was of the firm view that the proposals of Dr Boffa that she return to work with Jayco, were unsuitable. He described her as a genuine lady, suffering real and debilitating back and referred leg pain. He was responsible for referring her to a number of specialists.

46Mr Johnson, the orthopaedic surgeon, treated her over a number of occasions in 2012 through until 2013. Although he assessed her as having a moderate level of disability, he said it would be very difficult for her to resume work as a sewing machinist.

47Likewise, Mr Drnda, neurosurgeon, saw Ms Tezeli on several occasions in 2013, 2014 and 2015, and accepted she was suffering significant pain and distress. He considered spinal surgery. He thought she was not capable of any type of work.

48Both Dr Patrick and Dr Thomas considered there was a significant physical basis for her problems. Dr Thomas thought that a nerve root block ought to be undertaken before any surgery. He managed her, more recently, with a range of medications.

49Mr Timms, neurosurgeon, also discussed the possibility of surgery.

50Generally, I accept the plaintiff’s complaints of pain in the lower back and referred pain, in particular, to the right leg. I accept that this has had a significant effect upon her life, including her domestic and recreational interests. I accept her evidence that she receives considerable support from her husband and other members of her family, in these tasks. I accept that she takes a range of pain-relieving and anti-inflammatory medication, as well as medication to

assist with sleep. I accept her sleep is affected. The pain and restriction has continued, now, for five years, and there is no practitioner suggesting any improvement into the future. Given the chronic pain and restriction, I am satisfied that the consequences to Ms Tezeli are “very considerable”.

51In terms of work capacity, I am not satisfied it was reasonable for her to return to work with Jayco around the time of Dr Boffa’s examination in 2013, undertaking the tasks to which he refers. I prefer the opinion of the general practitioner, Dr Thornton, in that regard.

52In terms of the range of alternative employment proffered by CoWork of May 2017, it is necessary to take account of the various matters referred to in the definition of “suitable employment” in the Act. Ms Tezeli has no experience as a sales assistant and has language restrictions. All of her employment has been in manual tasks, either as a machinist, a vegetable packer, or flower picker. It is quite unrealistic to expect her to have the capacity to undertake sales work. Likewise, customer service officer is not a position for which she is any way appropriately qualified. As to the remaining work, ironer (home- based), crossing supervisor and sewing machinist, I am not satisfied that she has the realistic capacity for such work. As has been pointed out by a number of the practitioners, she requires the ability to sit and stand and to rotate her duties. She is unable to bend, twist or lift heavy items. Even presuming she could attempt such tasks, initially, on reduced hours, I am not satisfied she has the realistic capacity to attend regularly or reliably, nor to improve any starting hours. As she said in evidence, she may be able to undertake work as a crossing supervisor, or some other area with modified duties, but, in my view, she has only the ability to work a few hours per day, several days per week. All in all, her work capacity has been reduced by more than 40 per cent.

53Accordingly, I am satisfied that she meets the statutory definition in relation to loss of work capacity.

54I shall grant leave to bring proceedings and make consequent orders.

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