Wigg v VWA
[2019] VMC 3
•25 JUNE 2019
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION OF COURT
Case No. K10212002
| MURRAY WIGG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 21 MAY 2019 |
DATE OF DECISION: | 25 JUNE 2019 |
CASE MAY BE CITED AS: | WIGG v VWA |
MEDIUM NEUTRAL CITATION: | [2019] VMC003 |
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CATCHWORDS – Workplace Injury Rehabilitation and Compensation Act 2013 - Application for re-instatement of weekly payments on 15 March 2017 on grounds of ‘no current work capacity’ which is likely to last indefinitely – Medical Panel Opinion dated 20 July 2016 that plaintiff has a ‘current work capacity’ – Issues: whether there has been a ‘material change’ in plaintiff’s condition since Medical Panel Opinion and if so, whether the plaintiff has ‘no current work capacity’ which is likely to last indefinitely – Tendering of Medical Panel Opinions and Reasons for Opinions allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Yerusalimsky | Footner Wren |
| For the Defendant | Mr Scully | Minter Ellison |
HIS HONOUR:
Mr Wigg is 62 years of age having been born on 26 December 1956. In his Statement of Claim filed on 17 January 2019, he alleges that he sustained injuries to his lumbar spine and sacroiliac joints during the course of his self-employment as a Consultant with Spectrum Consultants (Hallam) Pty Ltd on 9 September 2005 when twisting whilst getting out of his car and due to prolonged sitting. He also alleges that he developed a chronic pain syndrome and an adjustment disorder with mixed anxiety and depressed mood.
Mr Wigg lodged a WorkCover claim on 25 November 2005 for which liability was accepted and he received weekly payments of compensation for his various periods of incapacity from that date. On 15 March 2017, he applied for a reinstatement of his weekly payments which was rejected by Allianz Australia Ltd on 22 August 2017 on the basis that he had received 130 weeks of weekly payments and had a current work capacity or if he had no current work capacity it was not likely to continue indefinitely.
The defendant in denying the claim relies on Medical Panel opinions dated 14 April 2008, 16 November 2012 and 20 July 2016 in which the Medical Panels formed opinions that Mr Wigg had a current work capacity.
To understand the current issues in dispute, it is appropriate to set out in some detail the history of the Workcover claims made by Mr Wigg, the Agents response and the dispute resolution processes that have occurred. The evidence revealed:
a. Mr Wigg commenced working with Victoria Police in 1973, sustained injury to his left knee in 1981 when twisting and was involved in a motor vehicle accident during his employment on 20 May 1983 injuring his back;
b. Mr Wigg underwent spinal operations because of the injuries sustained in the motor vehicle accident on; 3 February 1986 (anterior spinal fusion L4-5 performed by Mr Crock); 20 July 1987 (lower lumbar decompressive laminectomy and fusion at L4-5 performed by Mr Barrett; and, further L5/S1 fusion operations performed by Mr Barrett in 1992 and 1993;
c. On 9 October 1989, he aggravated his back injury during his employment with Victoria Police when involved in a “brawl” and sustained further aggravation in 1990 whilst wrestling with an offender. He also sustained an anxiety/depressive condition;
d. In 1992, he retired from the Victoria Police and has since received a disability pension;
e. In 1998, he established the defendant company which involved him selling telecommunications services;
f. On 25 June 2002, he received a lump sum redemption payment from Victoria Police;
g. In 2004, he established a company known as Spectrum International Pty Ltd;
h. On 9 September 2005, he sustained an injury to his back during his employment with Spectrum Consultants (Hallam) Pty Ltd for which liability was accepted;
i. In 2006, he underwent a left knee arthroscopy;
j. On 20 June 2006, the defendant gave notice to Mr Wigg of their intention to terminate his weekly payments (pre-130 week) claiming his incapacity for work was not contributed to by an injury which arose out of or during his employment on 9 September 2005. The dispute was ultimately referred to a Medical Panel by the Magistrates’ Court and on 14 April 2008 the Medical Panel formed an opinion that; Mr Wigg was not suffering from any medical condition in relation to the left knee or anxiety and depression but that he continued to suffer from mild persisting right sacroiliac joint dysfunction as a consequence of a soft tissue injury of the right sacroiliac joint relevant to the alleged lumbar spine injury, sustained in the course of his employment with Spectrum Consultants. The Medical Panel also found that Mr Wigg had a current work capacity. Mr Wigg then received the balance of his 130-week entitlement to weekly payments to 21 March 2008;
k. Mr Wigg subsequently lodged a WorkCover claim for psychiatric injuries allegedly sustained on 12 June 2008 whilst self employed with Spectrum International for which liability was accepted and he received weekly payments of compensation. The defendant, by way of Notice dated 13 May 2009 sought to terminate those payments (pre-130 week) claiming his incapacity for work was not contributed to by an injury which arose out of or during his employment. The dispute was ultimately referred to a Medical Panel by the Magistrates’ Court and on 16 November 2012 the Medical Panel formed an opinion that; Mr Wigg was suffering from a mild adjustment disorder associated with anxious and depressed mood but that his paroxysmal atrial fibrillation in the setting of a dilated non-ischaemic cardiomyopathy was not related to any alleged atrial fibrillation injury nor was his employment a significant contributing factor to that condition. The Medical Panel was also of the opinion that Mr Wigg was incapacitated for his preinjury employment because of his psychiatric condition but that he had a current work capacity in that he could undertake employment involving office administration or clerical duties. Mr Wigg subsequently received the balance of his 130-week entitlement in relation to his psychiatric injuries to 3 December 2010;
l. On 26 February 2013, (approximately 3 months after the Medical Panel opinion), Mr Wigg applied for a reinstatement of his weekly payments of compensation in relation to his right sacroiliac joint dysfunction/lumbar spine injury (9 September 2005 claim) which was rejected by the agent on 6 September 2013 on the grounds that his incapacity for work was no longer materially contributed to by the injury which arose out of or in the course of his employment on that date;
m. This dispute and several others were ultimately referred to a Medical Panel by the Magistrates’ Court who examined Mr Wigg on 12 May 2016 and on 20 July 2016 the Medical Panel formed an opinion that;
i. in relation to his employment as a police officer with Victoria Police: he had no physical medical condition of his back, left knee or right shoulder but he still suffered from persistent and recurrent symptoms of a soft tissue injury to his neck as well as a mild adjustment disorder with anxious mood;
ii. in relation to his employment with Spectrum Consultants (Hallam) Pty Ltd: he has a mild persisting right sacroiliac joint dysfunction following a soft tissue injury which is still work related, but he no longer has a stress or anxiety condition, or work injury aggravated post-traumatic stress disorder;
iii. Mr Wigg has a current work capacity for office-based employment such as an Administrative Officer.
As indicated, on 15 March 2017, Mr Wigg applied for a reinstatement of his weekly payments of compensation on the basis that his condition has deteriorated since the Medical Panel formed its opinion on 20 July 2016 causing him to have no current work capacity which is likely to last indefinitely. The defendant asserts that Mr Wigg is not able to demonstrate a material change in his condition since 20 July 2016 and is therefore estopped from claiming weekly payments.
Mr Wigg gave evidence and numerous medical reports, the Medical Panel opinions referred to, an Activities of Daily Living Assessment Report dated 2 October 2017 and a report from The Recovre Group dated 25 March 2019 were tendered.
To determine the issues in dispute, the court permitted without the objection of Mr Wigg, the tendering by the defendant of the Medical Panel Reasons for Opinion that accompanied the Opinions formed by the Medical Panel dated 14 April 2008, 16 November 2012 and 20 July 2016. In allowing the admittance of the Reasons for Opinion, the court has had regard to the Court of Appeal decisions in Lianos v Inner & Eastern Health Care Network[1] and Tilahun Yirga-Denbu v VWA[2]. In my opinion, the Panel Reasons and in particular the Reasons For Opinion dated 20 July 2016 contain admissible opinion evidence concerning the nature and extent of Mr Wigg’s sacroiliac joint dysfunction symptoms and restrictions at that time in order to assist the court in determining if there has been a material change in his condition since the Panel’s examination of him on 12 May 2016 which now causes him to have no current work capacity which is likely to last indefinitely.
[1] [2001] VSCA 53
[2] [2018] VSCA 35
By virtue of s 313 (4) of the Workplace Injury Rehabilitation and Compensation Act 2013, the court must accept that as at 20 July 2016, Mr Wigg was suffering from a mild persisting right sacroiliac joint dysfunction following a soft tissue injury and had a current work capacity. On that basis, Mr Wigg has the evidentiary and legal onus of establishing a change in circumstances from that date to be entitled to further weekly payments of compensation.[3]
[3] See Anjivan Pty Ltd v Fry [2001] VSCA 148 and Findlay v Franklins Ltd [2010] VMC 43 (S Garnett)
Mr Wigg gave evidence that he is currently residing in Kooweerup with his partner Vivienne, but previously they lived in Clayton and spent 2 to 3 months each year in the Philippines because of the warmer weather. He told the court that since August 2017, he has been unable to travel overseas because of his pain level. He gave evidence that he joined the police cadets in 1973 and worked at various stations before joining the traffic operations group. He said that because of a motor vehicle accident in 1983 he underwent four spinal fusion operations and developed a post-traumatic stress disorder for which liability was accepted by WorkCover. He gave evidence that he retired on a disability pension in March 1992. He told the court that he applied for many jobs after leaving the police force but because he was unsuccessful he decided to set up his own business in 1998 known as Spectrum Consultants (Hallam) Pty Ltd. He said the business was a travel agency and he performed work as a sales manager which included overseeing the day-to-day running of the business, performing sales duties and managing staff. He said that this did not involve much paperwork but did require him to use a computer. He gave evidence that to keep up to date he did a computer course and small business course at Morwell Tafe.
Mr Wigg told the court that on 9 September 2005, he experienced pain in the right side of his lower back whilst driving to see a potential client and when he arrived at his destination and as he was getting out of his car, he “twisted” and felt the pain radiate to his right buttock. He gave evidence that this pain was different than what he had previously experienced. Mr Wigg told the court that he remained off work for approximately three weeks and then returned to work on a gradual basis, 2 to 3 days per week over a period of 2 to 3 years. He said that he ultimately ceased work because his condition worsened.
Mr Wigg gave evidence that in approximately 2004 after he had sold the travel agency he set up another business with a friend selling fertiliser to companies in China. He told the court that his business partner committed fraud and he received “death threats” which resulted in him suffering from a psychiatric condition rendering him unfit for work. He told the court that he submitted a WorkCover claim in 2008 for which liability was accepted. Mr Wigg gave evidence that he last worked in 2008 mainly due to his psychiatric condition but also because he was continuing to experience right sided low back pain. Mr Wigg gave evidence that since 2005, his back pain has slowly worsened, which he described it as a “blunt dull pain” and it has become more chronic in the last two years and is present all the time. He said that he has received various treatments for his condition over the years including pain medication and he is monitored by Dr Vivian.
Mr Wigg told the court that when he was examined by the Medical Panel on 12 May 2016, his pain was bad enough to annoy and restrict him and some days he could do more around the home such as; cleaning the dishes, sweeping floors, making beds, self-care which included dressing and toileting himself, but since then he went “downhill”. He told the court that now he cannot even bend down, and his partner does the bulk of the housework. He also told the court that in 2016 he was still able to travel overseas which he is no longer able to do. Mr Wigg also told the court that in November 2016 he underwent another radiofrequency neurotomy which had previously assisted with his pain levels but on this occasion the benefit subsided within 2 to 3 days. He gave evidence that Dr Vivian recommended he have a spinal cord stimulator implanted but he was unable to undergo that procedure because of his heart condition. He said that the only treatment he now receives is pain medication in the form of OxyContin (from late 2017) and Tramadol (from last week) which improves his pain, but it affects his concentration and memory. Mr Wigg told the court that his pain increases if he stands or sits for long periods and the maximum period he can sit, or stand is approximately 10 to 15 minutes without the pain increasing.
Mr Wigg gave evidence that he can watch his local football team when they play at home once per fortnight but his pain level increases after walking for approximately 15 to 20 minutes and driving also causes back pain. He said that he uses a lumbar support and drives an automatic vehicle. He said that his pain level is constant and has been so for the last 12 to 18 months and the pain radiates into his right buttock. He told the court that he experiences sleep disturbance and takes Stilnox slow release medication to assist. Mr Wigg told the court that he feels tired most of the day and no longer participates in his previous hobbies of fishing and shooting. He said that he is only able to attend AFL games at the MCG 2 to 3 times per year and rather than driving he catches the train from Pakenham to Richmond. He told the court that his partner gives him massages, helps him shower for which he must sit on a stool, dries him and clothes him. He said that Allianz pays for his medical treatment and from December 2017, after a home help assessment, it has provided him with a lumbar support cushion, a shower stool, a pickup stick, an ergonomic chair and a device to help him clean himself after toileting.
Mr Wigg told the court that he only has basic computer skills, has not done any further computer courses since 1998/9 and he finds it difficult to concentrate. He told the court that he also has a heart condition which necessitated the implant of a pacemaker on 29 March 2019 and he is due to undergo a further procedure on 3 June 2019. Mr Wigg disputed that he could return to work in office administration or at a ‘call centre’ as he cannot sit or stand for long periods and has never performed that type of work.
During cross examination, Mr Wigg was questioned extensively concerning the numerous injuries that he sustained since 1981 and the treatment he received in respect to those injuries. He was also examined concerning the complaints he made to those doctors in relation to his pain level, the site of his pain and the asserted restrictions they have caused. Mr Wigg agreed that he told the Medical Panel examiners on 12 May 2016 that he was experiencing a constant dull ache in his lower back, numbness in his right groin, neck pain, that he could not lift more than 3 kg and that he could not sit for more than 20 minutes or stand for more than 30 minutes without experiencing increasing pain. He also agreed that he told the Medical Panel examiners at that time that he struggled to dress himself or wash himself and that he needed assistance and was unable to do household activities. Mr Wigg disputed the suggestion that it suited his purposes to tell the Medical Panel examiners that he was unable to perform any household activities. He also disputed that the symptoms he complained of at that time are the exact same symptoms that he is now complaining of. Mr Wigg told the court that his condition has got worse and he has slowly deteriorated since he was examined by the Medical Panel. Mr Wigg agreed that his current complaints of; constant right-sided back pain; right hip pain; numbness in the right thigh; throbbing of the right thigh; pins and needles in the right foot; pins and needles in the fingers of his right hand; limitation on walking to 15 to 20 minutes and being unable to sit for any length of time are similar to the complaints he made to Dr Vivian in 2013, but he said he has “got worse”.
Mr Wigg told the court that he underwent cardiac bypass surgery on 20 December 2017. He told the court that this did not restrict him in performing activities of daily living because the only symptom he experienced was a shortness of breath. He told the court that he still experiences; back and neck pain, that his left knee condition has settled down, but he continues to experience psychiatric symptoms as he is upset with Allianz and due to his back-pain worsening. He said that he takes OxyContin medication 4-5 times a day whereas previously it was 4 to 5 times per week. He said that he now has 4 out of 5 bad days.
Mr Wigg said that he is not fit for the suitable employment as suggested by the Medical Panel. He said that he could not do receptionist work because of the increasing pain he experiences daily, that he cannot sit in a chair all day and he would let any employer down. When asked if he could perform that employment with an ergonomic desk that would allow him to sit or stand at will, he said that he still did not believe that he would be capable of performing that role because of the pain in his lower back. He also disputed that he would be able to work in a Customer Call Centre because he said he would be unreliable and would become “frustrated and stressed out” because of his back pain.
Mr Wigg agreed that following the Medical Panel opinion dated 14 April 2008 (which found that he had a current work capacity) he then made a claim for weekly payments in relation to his psychiatric condition on 12 June 2008; that following the Medical Panel opinion dated 16 November 2012 (which found that he had a capacity to undertake employment involving office administration or clerical duties) he applied for a reinstatement of weekly payments on 26 February 2013 in relation to his back injury; and, following the Medical Panel opinion dated 20 July 2016 (which found that he had a capacity to undertake office-based employment such as Administrative Officer) he made application for a reinstatement of weekly payments on 15 March 2017 on the basis that his condition had deteriorated.
Medical Evidence
As previously indicated, the parties tendered numerous medical reports (42 in total) dating back to 1984, covering the injuries sustained by him whilst employed with Victoria Police. I do not propose to address the contents of those reports as most were tendered to provide some historical context to the multitude of medical issues that Mr Wigg has encountered over the past 35 years and are not relevant to the issues the court must determine in this matter.
The central issues are: the Medical Panel opinion dated 20 July 2016 and the basis for that opinion; and, the deterioration, if any, in Mr Wigg’s medical condition or circumstances since that time. As indicated, the Medical Panel examined Mr Wigg on 12 May 2016. The Panel formed an opinion that:
i. Mr Wigg continued to suffer from persistent, recurrent symptoms following a soft tissue injury to the neck and a mild adjustment disorder with anxious mood as a consequence of injuries sustained by him in the course of his employment with Victoria Police which necessitates general practitioner attendances once per month for his neck condition and once every three months for his anxiety and depression;
ii. Mr Wigg continues to suffer from mild persisting right sacroiliac joint dysfunction following a soft tissue injury with Spectrum Consultants (Hallam) Pty Ltd for which he should undergo a repeat right L5 to S3 radiofrequency neurotomy and a deep paravertebral cortisone injection to minimise post procedural discomfort and for which he should continue to receive treatment from his general practitioner up to once per month.
The Medical Panel Reasons for Opinion indicate that:
i. Mr Wigg told the Panel that following his fourth spinal operation in 1993 he obtained an excellent result and had not experienced any further symptoms;
ii. The pain he developed following the injury on 9 September 2005 was in the right sacroiliac joint area and he also experienced numbness in his right groin and thigh which was in a different location to the pain he experienced following his 1983 back injury;
iii. That on 1 September 2006, he underwent right sacroiliac joint radiofrequency neurotomy under general anaesthesia which was very successful and improved his right sacroiliac joint area pain by 85% for around 12 months;
iv. Mr Wigg told the Panel that his symptoms and his functional state have not altered greatly since December 2010 except that the pain in his right sacroiliac joint area has been gradually increasing;
v. Mr Wigg told the Panel that he no longer has any pain in his lower back but does have a constant dull ache over his right sacroiliac joint area and numbness in his right groin which extends into the front of his thigh when standing up;
vi. Mr Wigg told the Panel that he is limited in lifting to about 3kg because of his neck and right sacroiliac joint symptoms. He said that he could sit for a maximum of 20 minutes before he needs to move and stand for 30 minutes because of his right sacroiliac joint area pain. He also told the Panel that he is limited with his personal care including toileting and needs assistance in dressing and washing. Mr Wigg also told the Panel that he is unable to undertake any household activities but can drive if he takes frequent breaks.
vii. Mr Wigg told the Panel that he takes Mersyndol as required, Lyrica 75mg x 2 per day, Glucosamine, Avapro 300mg per day, 90mg per day of Diltiazem, 250 micrograms of Digoxin, 10mg Crestor, 5mg x 2 per day of Apixaban, 200mg of Pristiq per day, 30mg of Murelax and either Stilnox or Imovane daily.
viii. Mr Wigg told the Panel that he was undergoing self-management core strengthening exercises and walking on a treadmill but ceased doing so in February 2017 because they were aggravating his right sacroiliac joint area pain.
On examination, the Panel noted that Mr Wigg was tender over the right sacroiliac joint and a right Faber test elicited pain in the right sacroiliac joint area whereas the left sided test was negative. The Panel also noted that Mr Wigg had a body mass index of 41, which is in the very severely obese range. The Panel concluded that Mr Wigg sustained a soft tissue injury to the right sacroiliac joint in the course of his employment which has never resolved and has been persistent despite medical treatment. The Panel referred to previous Medical Panel opinions dated 14 April 2008 and 16 November 2012 and noted Mr Wigg’s prior employment activities and the fact that he has not returned to any employment, studies or vocational training since 2008. In relation to his capacity, Mr Wigg told the Panel that his physical and mental capacity is low and his heart condition (non-compensable) limits his exertion. He said that he continues to experience low back pain (because of his injury with Victoria Police), left and right knee pain and has recently developed headaches which limit his activities of daily living. He also told the Panel that; some days he must rest in bed because of the pain and it also restricts his walking and physical exercise; that he gets anxiety attacks and shortness of breath; that his concentration span is “terrible”; that he struggles to retain new material, and, he suffers from sleep disturbance.
Mr Wigg told the Panel that he was unable to return to any employment activities because of his physical limitations and his current state of mind and that he “cannot cope anymore”. He also told the Panel that he has not been provided with any occupational rehabilitation services or any retraining opportunities.
The Panel, when concluding that Mr Wigg had a current work capacity for employment as an Administrative Officer, noted that;
a. he joined the Victoria Police cadetship program in Year 11 and subsequently obtained a Certificate in Information and Technology in Computer Studies and a Certificate in Business Management;
b. he has a driver’s licence, a heavy articulated endorsement and a motorbike licence;
c. his English skills are good, and his numeracy and computer skills are average which would not limit his employment opportunities;
d. his employment history has included; a Police Officer, a Plant Operator and Sales positions in Corporate Travel and Telecommunications;
e. he has a mild severity of his neck and right sacroiliac joint conditions with restricted functional capacity in sitting, standing, walking and lifting which does limit the range of employment options;
f. he is aged 59 years and lives in Morwell[4] which may restrict his employment opportunities;
g. in view of his education level and his varied and extensive work experience he has several transferable skills;
h. the absence of vocational rehabilitation services or return to work plans are not essential given his qualifications and work experience although his absence from the workplace for an extended period may limit his employment opportunities.
[4] Now Korumburra
Ultimately, the Panel concluded that because Mr Wigg’s symptoms and functional status had not significantly altered since December 2010, he had the capacity to undertake office type duties. The court is bound to accept this opinion as at 20 July 2016.
Mr Wigg tendered medical reports from Dr Vivian, Musculoskeletal Physician, dated 11 January 2017, 24 October 2017, 12 September 2018, 24 April 2019 and an Operation Report dated 11 November 2016. In his Operation Report, Dr Vivian noted that when he last examined Mr Wigg on 1 March 2013, his reported pain had remained the same. Dr Vivian recorded that Mr Wigg had atrial fibrillation, a coronary stent and high blood pressure. He diagnosed Mr Wigg as having lumbar facet joint pain and he performed a lumbar radiofrequency neurotomy. In his report dated 11 January 2017, he stated that he has treated Mr Wigg in relation to his back problems since 2005 and saw him regularly until 2007 and then in 2013 and 11 November 2016. Dr Vivian reported that the sacroiliac radiofrequency neurotomy performed on 11 November 2016 made no difference to his pain. He diagnosed that Mr Wigg has chronic right-sided low back and sacroiliac pain spreading into his right hip and leg. On the basis that the radiofrequency did not work, he expected Mr Wigg’s pain to persist and that the only thing that might make a difference would be the implant of a spinal cord stimulator.
In his report dated 24 October 2017, Dr Vivian noted that a recent MRI Scan (12 September 2017) demonstrated that there was a benign cyst in the iliac crest which caused a sacroiliac joint fusion to be unsafe. Dr Vivian reported that Mr Wigg’s major problem is right sacral pain which is slowly becoming worse. He noted that Mr Wigg also has right anterior thigh tingling and, at times, some aching down the back of his right leg from his buttock to his foot. Dr Vivian reported that Mr Wigg told him that the pain in his back, at best is 4-5/10 but often reaches 8/10 and sometimes 9/10. He reported that Mr Wigg also told him that he cannot do much and if he sits or stands for a short period he gets pain. Dr Vivian noted that Mr Wigg has stress, anxiety and depression as well as coronary artery disease. Dr Vivian reported that the MRI Scan taken on 12 September 2017, showed moderate right paracentral and foraminal disc protrusion at L1/2 and L2/3, with right L2 nerve root compromise. He stated that it also demonstrated multiple artefact from the posterior fusion devices from L5 down to S2 and the L4/5 disc fused. Dr Vivian opined that Mr Wigg was unfit for work because of his back and suggested that a spinal cord stimulator may be appropriate together with pain management therapies.
In a report dated 12 September 2018 to Allianz, Dr Vivian noted that although approval had been given by them for a trial of a spinal cord stimulator, Mr Wigg was unable to proceed with it because of his chronic heart failure. He stated that Mr Wigg was taking a large amount of medication, but he will require stronger and more regular pain medication because his sacroiliac joint pain was worsening.
In a report to Mr Wigg’s lawyers dated 24 April 2019, Dr Vivian stated that Mr Wigg had told him that he “now has no problem with his neck, head, upper back and arms and that his knee problems are mild”. He also told Dr Vivian that his inability to function is predominantly because of his right sacral and leg problem. Dr Vivian reported that Mr Wigg underwent a biventricular pacemaker insertion recently and was due to have an AV node ablation in 6 weeks. Dr Vivian stated that after Mr Wigg is reviewed by his cardiac physicians in 6 months it can then be determined whether a spinal cord stimulator can be implanted. Dr Vivian reported that Mr Wigg stated that he had become more disabled and has had more pain in the past year or two and is taking medication in the form of Oxycontin – 5mg x 5 tablets each week, Mersyndol – 4pd, Panadol Osteo – 3pd and numerous medications for other health issues. In relation to his current symptoms, Mr Wigg told Dr Vivian that: his pain is lumbosacral and spreads into the right buttock and upper hamstring and he gets a tight lump feeling in the right sacrum like a knot. He told Dr Vivian that his partner massages this region which gives him temporary relief. He also said that he gets pain in the right groin and an ache in the right anterior thigh and numbness in that area associated with tingling particularly when he sits or stands for 5 minutes. He told Dr Vivian that if he sits or stands for longer the pain gets into the groin and thigh. Mr Wigg also told him that the numbness can spread to the three outer toes if the anterior thigh throbs. He also complained of pain in the sacroiliac region and groin on walking after 15 minutes and said that his walking is restricted because of these problems although he does suffer left knee pain when walking. Mr Wigg also told Dr Vivian that he suffers from sleep disturbance.
Dr Vivian also referred to the symptoms Mr Wigg complained of when he saw him in September 2013, which were: constant pain in the right sacroiliac joint region; constant pain in the right hip preventing him from sleeping on his right side or back; an inability to sit in excess of 30 minutes without feeling discomfort and pain in the right sacroiliac joint region; an inability to walk in excess of 20 minutes without causing great pain to his right sacroiliac region and right leg; numbness in the front region of his right thigh if he stands or walks for longer than 30 minutes; intermittent throbbing in the back of his right thigh; intermittent pins and needles in his right foot; intermittent pins and needles in the bottom 3 fingers of his right hand; constant shaking of his right leg when sleeping on his left side; the need for assistance from his partner to dress and undress and shower due to the pain in his right sacroiliac joint region; difficulty in wiping his backside after toileting due to the ever present pain in the right side of his lower back; and, being in constant pain and taking increased doses in pain medication to relieve the pain.
Dr Vivian reported that he had suggested to Mr Wigg that he was already very disabled in 2013 but was told by him that he is now much more disabled and the restrictions at home are now worse than before. On examination, Dr Vivian reported that Mr Wigg’s symptoms and signs are consistent with pain derived from the sacroiliac joint and/or the lower lumbar spine and his right thigh symptoms might derive from the right L2/3 disc prolapse. Dr Vivian noted that he is reliant on Mr Wigg’s description of worsening symptoms when he states that his condition has deteriorated but notes that it is to be expected that degenerative changes progress and from a morphological perspective it does appear that Mr Wigg’s condition has deteriorated.
Mr Wigg tendered medical reports from Dr Palleschi, General Practitioner, dated 12 October 2017 and 4 April 2019. In his first report, Dr Palleschi diagnosed that Mr Wigg has a chronic right sacroiliac joint inflammation and that his incapacity related to multiple medical conditions of which his right sacroiliac joint injury is the main contributor. He reported that the condition caused limitations in Mr Wigg’s ability to sit or stand for any reasonable period and difficulty in mobilising. Dr Palleschi opined that Mr Wigg had no capacity for pre-injury or other potential employment. In his later report to Mr Wigg’s lawyers, Dr Palleschi noted that there has been a significant deterioration in his right sacroiliac joint injury since the Medical Panel opinion in July 2016. He reported that Mr Wigg has complained of shooting pains down into the right buttock and continual right inner thigh/groin numbness. Dr Palleschi reported that this has led to an increased requirement for analgesia, including Oxy Codeine, Mersyndol and Panadol Osteo. He said that Mr Wigg’s chronic pain has affected his physical and emotional wellbeing, reflected in poor sleep, lowered mood, anxiety and a restriction in his ability to perform activities of daily living. He opined that Mr Wigg does not have the capacity to perform Receptionist work or as a Customer Services Operator in an Aged Care facility due to the need in such an occupation to sit/stand or stay in a seated position for a period and his physical restrictions related to bending and twisting. Dr Palleschi also opined that employment as a Receptionist in a manufacturing business would not be suitable as Mr Wigg has very little carrying capacity and would require frequent periods of rest. Dr Palleschi also noted that in his opinion, the suggested duties could possibly worsen Mr Wigg’s mental state and result in physical deterioration.
Mr Wigg tendered medical reports from Mr Timms, Neurosurgeon, dated 14 September 2017 and 5 April 2019 which were addressed to Dr Palleschi. In his first report, Mr Timms suggested that it would be reasonable to offer Mr Wigg a lumbar sacroiliac fusion but due to the presence of the bone cyst it was likely to become unstable and cause more pain and symptoms. He recommended that Mr Wigg have a cortisone injection into the joint and chronic pain management. In his subsequent report, Mr Timms noted that Mr Wigg complained of increasing problems in his lower back, right buttock region and right thigh with sciatica at times down to the lateral aspect of his right foot. He reported that Mr Wigg told him that he had become more limited because of the pain and he has restricted ability to sit, stand and mobilise. Mr Timms reported that recent imaging demonstrated worsening facet joint arthropathy in his lower spine and a progression of the injury to the right sided sacroiliac joint. He suggested that Mr Wigg’s treatment options included; pain medications, physical therapies, cortisone injections, spinal cord stimulators or definitive surgery. He recommended that given his worsening symptoms, both clinically and radiologically, that Mr Wigg would benefit from a right sacroiliac joint fusion, but it may not be feasible because of the cyst cavity. He opined that Mr Wigg is incapacitated for any occupation because of his symptoms.
Mr Wigg tendered reports from Dr Velakoulis, Consultant Psychiatrist, dated 4 December 2016 and 22 October 2017. Dr Velakoulis reported that he first saw Mr Wigg on 28 February 2014 and has provided semi regular psychiatric care since that date. He opined that Mr Wigg has depression, post traumatic stress disorder, anxiety and somatic symptoms which have deteriorated over time. When seen in October 2017, Mr Wigg told him that he was experiencing ongoing difficulties with low energy, disinterest in daily life activities, variable appetite and weight gain, reduced attention and concentration, poor motivation and recurrent rumination for much of the day. Mr Wigg told him of significant depressive deterioration in the face of escalated pain levels. Dr Velakoulis opined that Mr Wigg presented with a history of PTSD and a recurrent depressive disorder. He considered Mr Wigg to be incapable of performing his pre-injury or alternative duties and that he requires ongoing psychiatric care, prescription of psychotropic medications and exposure-based therapy.
Mr Wigg also tendered a medical report from Dr Wilks, Clinical Psychologist, dated 18 July 2018. He reported that he has treated Mr Wigg for many years “on and off” but had recently completed 6 sessions of treatment with the goal of self- management. He reported that there has been some ‘uplift in mood’ and increased activity attributable to his treatment. He suggested a further 6 sessions to develop Mr Wigg’s self-management skills.
Mr Wigg tendered an Activities of Daily Living Assessment Report dated 2 October 2017, prepared by Ms Kemp, Occupational Therapist. It appears this Assessment was related to the injuries Mr Wigg sustained with Victoria Police and was arranged because Mr Wigg was seeking the provision of a new bed. Ms Kemp obtained a history from Mr Wigg as to his restrictions in; sitting (15 minutes); walking (limited because his mobility was poor and very slow); lifting/carrying (5 kg maximum); driving (requires regular breaks and limited to 30 minutes); and, range of motion (very tight and limited). Mr Wigg told her he has a very supportive partner who is his Carer, for self-care tasks and home care tasks including cooking, cleaning and shopping and he has a friend who helps with gardening and more difficult home tasks. Ms Kemp recommended the purchase of the following items: sock aid, higher bed & firmer mattress and a bed stick.
The defendant tendered a medical report from Mr C Jones, Orthopaedic Surgeon, dated 9 August 2013 following his examination of Mr Wigg on 25 July 2013. He noted that he had previously assessed Mr Wigg in June 2006 but a report relating to that assessment was not tendered. Mr Jones obtained a history from Mr Wigg that he continued to experience residual back pain, particularly around the lower back and right sacroiliac joint. Mr Wigg also complained of neck pain and ongoing stress. Mr Jones opined that the aggravation of Mr Wigg’s back condition as a consequence of the incident on 9 September 2005 had subsided a long time ago. Mr Jones considered that his residual back pain was due to the four fusion operations he had undergone and the incident on 9 September 2005 produced a temporary aggravation. He was also of the opinion that neither his back or knee condition would prevent him from undertaking sedentary work.
The defendant tendered a report from Mr I Jones. Orthopaedic Surgeon dated 15 September 2015. He reported that Mr Wigg complained of neck, right shoulder, lower back and left knee pain. Mr Wigg told him that he suffers from symptoms due to his right sacroiliac joint condition which affects the lower lumbar region to the right of the midline. He also complained of: some numbness affecting the skin on the anterior aspect of his right thigh; numbness of his right foot; cramping of his right calf; right sided muscle tightness in his neck; and, pain affecting the inner side of his left knee. Mr Jones reported that clinically Mr Wigg had no tenderness over the right sacroiliac joint and his pain appeared to be at a higher level and to the midline at the L5 level which he considered to be more likely due to the presence of lumbar spinal pathology with the presence of an internal fixation device remaining in situ. In relation to the 9 September 2005 incident, he opined that there is no evidence that it contributed to the pathology in that area and the effects of any possible exacerbation of symptoms or some irritation to the sacroiliac joint has resolved.
The defendant tendered a report from Associate Prof Love, Orthopaedic Surgeon, dated 15 September 2015 addressed to Mr Wigg’s lawyers. A/Prof Love considered that Mr Wigg’s low back pain probably originated in the right sacroiliac joint which he considered to be a significant aggravation of an underlying condition as a consequence of the incident on 5 September 2005. A/Prof Love considered that Mr Wigg’s incapacity for employment is due to a constellation of symptoms arising from both his police activities, his subsequent employment and cardiovascular condition.
The defendant tendered a report from Dr Fernando, treating Cardiologist dated 13 April 2015. He reported that as at that date Mr Wigg remained in chronic atrial fibrillation and if he continued to have difficulty in controlling his symptoms or experienced side effects from his medication he should be considered for a pacemaker and AV node ablation.
The defendant tendered a Suitable Employment Report from Recovre, dated 25 March 2019. Interestingly[5], the author of the report, Ms Ash, Occupational Therapist, noted that her referral instructions were: “consideration should only be given to the persisting low back dysfunction when considering suitable employment”. Ms Ash noted that the Medical Panel in its opinion dated 20 July 2016 stated that Mr Wigg’s physical tolerances are; lifting to “about 3 kg”; sitting for a maximum of 20 minutes before he needs to move; standing for 30 minutes; and, unable to squat or kneel (because of unrelated knee pain).
[5] On what basis was she instructed to disregard the injuries sustained in the course of his employment with Victoria Police which, according to the Medical Panel on 20 July 2016, were persisting and requiring ongoing treatment.
After considering Mr Wigg’s education standard, prior employment and the opinion of the Medical Panel that he was suited to a wide range of administrative roles, Ms Ash identified three actual roles that exist in the labour market and set out the physical requirements of each. These are:
- Receptionist with an Aged Care provider located in Drouin which is 36 km or a 33-minute drive from Kooweerup. Ms Ash reported that as a Receptionist, Mr Wigg would be responsible for recording residents’ movements in/out of the facility, greeting visitors and others, banking, preparation of resident information packs, general administration, stationery orders and preparation of staff ID cards and resident ID packs. Ms Ash reported that the role would require computer skills and some manual administrative tasks, that Mr Wigg could avail himself of a sit/stand desk, he would be free to move around, and some bending may be required as well as some handling of deliveries which are unlikely to exceed 2-3 kg in weight;
- Customer Services Officer/Call Centre Worker with a local Council in Frankston which is 36 km or a 34-minute drive from Kooweerup. Ms Ash reported that Mr Wigg would be required to work at a ‘hot desk’ computer work station and receive inbound calls and provide advice and information as required. She reported that each workstation has a sit/stand desk, adjustable chair and operators would be required to have computer skills and the job does not require manual handling tasks; and
- Receptionist with a manufacturing business in Hallam which is 34 km or a 30-minute drive from Kooweerup. Ms Ash reported that Mr Wigg would be responsible for data entry relating to sales, invoices, wages and related information as well as general reception and administration activities which would include greeting visitors, filing and photocopying. She noted that any lifting would not exceed 2-3 kg and Mr Wigg would be able to move around the office every 20 minutes and alternate between sitting and standing at will.
Conclusion
Mr Wigg bears the onus of satisfying the court that there has been a change in circumstances since the Medical Panel opinion dated 20 July 2016 in order to seek a re-instatement of his entitlement to weekly payments of compensation. Although his application was made on 15 March 2017, the court must determine that issue and, if appropriate, the issue as to his capacity for suitable employment as at 21 May 2019.
The determination of the initial issue, to a large extent depends on the credibility and reliability of Mr Wigg regarding his complaints of a deterioration in his condition since the Medical Panel opinion dated 20 July 2016. The Medical Panel opinion concerning diagnosis is not in dispute. In relation to the injuries which arose out of or in the course of his employment with Spectrum Consultants (Hallam) Pty Ltd, the Medical Panel determined that as at 20 July 2016 he was suffering from a mild persisting right sacroiliac joint dysfunction for which he required a radiofrequency neurotomy and cortisone injection. The Panel also opined that he continued to suffer from a soft tissue injury to his neck and a mild adjustment disorder with anxious mood as a consequence of the injuries sustained by him in the course of his employment with Victoria Police and that both conditions required ongoing treatment.
Mr Wigg has complained of a variety of symptoms over the years of varying intensity. In general, I found him to be an honest and credible witness. Many of the symptoms of which he complains have been present for a number of years. However, I do accept his evidence as being truthful that since July 2016, and in particular in the last two years, his level of pain has increased with a worsening of his symptoms. Importantly, Dr Vivian, his treating doctor from 2005 to 2007, 2013, and then from 2016, whilst noting that he is reliant on the information given to him by Mr Wigg, is of the opinion that Mr Wigg’s right sacroiliac pain is slowly becoming worse with associated symptoms. He has recommended the use of a spinal cord stimulator and pain management therapies and has also supported the use of stronger pain-relieving medication.
Additionally, Dr Palleschi stated that there has been a need to increase Mr Wigg’s medication and Mr Timms has expressed an opinion that recent imaging has indicated a progression of the injury to his right sacroiliac joint. Furthermore, he has been provided with home help aids since the Medical Panel opinion as he found it increasingly more difficult to cope with activities of daily living.
I therefore find that there has been a material change by way of a deterioration in Mr Wigg’s work related injury since the Medical Panel formed an opinion on 20 July 2016. On this basis, Mr Wigg is entitled to seek a re-instatement of weekly payments in accordance with the provisions of the Act.
The second issue to determine is whether as at 21 May 2019, he now has ‘no current work capacity’ which is likely to last indefinitely. As at 20 July 2016, the Medical Panel formed an opinion that he had a ‘current work capacity’ for office-based employment such as an Administrative Officer. It is not the function of the court to ‘review’ that opinion but rather to determine on the facts presented to the court whether Mr Wigg has a ‘current work capacity’ or ‘no current work capacity’ which is likely to last indefinitely as at 21 May 2019. I find that Mr Wigg does not have a capacity to return to his pre-injury employment as a Sales Manager. The defendant did not contend otherwise.
When considering whether Mr Wigg has ‘no current work capacity’, I have had regards to the definition of ‘suitable employment’ as contained in s 3 of the Act and the decision of Richter v Driscoll & Ors[6] and the more recent decision of Cavanough J in Lang v Spendless Shoes Pty Ltd[7]. In particular, I have had regards to the fact that;
[6] [2016] VSCA 142.
[7] [2019] VSC 376.
a. Mr Wigg is currently aged 62 years;
b. He resides in Kooweerup, Sth Gippsland;
c. He has not worked since 2008;
d. He has not participated in any updated computer training since the late 1980’s;
e. He is extremely limited and restricted in performing basic household duties and has difficulties in performing activities of daily living;
f. He is required to take copious levels of medication in relation to his employment and non-employment medical conditions;
g. He has difficulty with concentration and memory;
h. He has significant restrictions in sitting, standing and driving a motor vehicle;
i. He suffers from sleep disturbance;
j. He suffers from a non-work-related coronary condition for which he has recently had a pacemaker inserted and from which he suffers from a shortness of breath;
k. He has not been provided with any occupational rehabilitation or re-training;
l. He continues to suffer from persistent and recurrent symptoms of a soft tissue injury to his neck and a mild adjustment disorder as a consequence of injuries which arose out of or in the course of his employment with Victoria Police, both of which require ongoing treatment; and
m. His presentation, including his ‘severe obesity’, would not make him ‘attractive’ to a prospective employer.
After considering the ‘entirety of his personal circumstances’[8] and his ‘personal characteristics’[9], I have concluded that Mr Wigg does not have the capacity to return to work in the suggested suitable employments as a Receptionist with an Aged Care provider in Drouin, a Customer Services Officer/Call Centre Worker in Frankston or as a Receptionist in a manufacturing business in Hallam. The suggestion that he has a capacity for these employments is unrealistic.[10] As indicated, I am of the opinion that it is appropriate to consider the prior injuries sustained by Mr Wigg and his non-work-related cardiac condition when considering the issue of whether he has a capacity for suitable employment. After taking all of these matters into consideration, I do not consider that Mr Wigg is able to return to work now, or in the future, as an established member of the workforce.
[8] Ashley JA & Kaye JA in Richter
[9] Osborn JA in Richter
[10] See comments made in Manthopoulos v Spencwill Nominees [2012] VMC 15.
Accordingly, I find that as at 21 May 2019, Mr Wigg has ‘no current work capacity’ and is likely to continue indefinitely to have ‘no current work capacity’. Mr Wigg is entitled to receive weekly payments of compensation from 21 May 2019 in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.
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