Yalla v VWA
[2020] VCC 1019
•22 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-06194
| Basanth Yalla | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2020 | |
DATE OF JUDGMENT: | 22 July 2020 | |
CASE MAY BE CITED AS: | Yalla v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1019 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lumbar spine – pain and suffering – plaintiff returned to full-time sedentary employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr D Churilov | Minter Ellison |
HER HONOUR:
1 The 39 year-old plaintiff applies under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine sustained during the course of his employment with Americold Logistics Limited (‘the employer’) as a cleaner between 2013 and 2015.
The issues
2 The plaintiff says that he has suffered constant back pain for seven years. The pain is aggravated by standing and leaning, and by driving, sitting or standing for long periods. The pain interferes with his sleep, prevents him from playing social cricket or table tennis, and from playing sport with his young children. It also interferes with his sexual relationship with his wife. The pain impacts on his productivity at work as he must take frequent breaks. This leads the plaintiff to fall behind at work, and he then has to make up the time later, for which he is not paid. Although he currently works full-time as a computer programmer, the back injury has robbed him of the flexibility to return to heavier work in the event that this work is no longer available to him. He tries to avoid taking strong pain medication, did not tolerate anti-inflammatories well, and only takes Panadol for a few days when his back pain flares up. He does back exercises daily, but otherwise manages his back pain as best he can. At its worst, the back pain prevents him from getting out of bed.
3 The defendant concedes that the plaintiff suffered a work-related injury to the lumbar spine leading to a permanent impairment of the lumbar spine but says that the pain and suffering consequences of that impairment do not meet the narrative test for serious injury. In particular, the defendant relies on: the relatively low level of pain; the absence of medical treatment in recent years; the fact that the plaintiff does not regularly take strong pain medication, and mostly takes no medication at all; the retained capacity to sleep for six to eight hours per night and to work full-time employment in the field for which he is trained; the absence of supporting evidence concerning the impact of his pain on his productivity; that the medical evidence of Associate Professor Anthony Buzzard records a full range of motion; that Mr Russell Miller does not impose restrictions on twisting, sitting, standing, domestic activities, or running; and the plaintiff’s retained capacity to manage activities of daily living. Further, the defendant submits that the opinion of A/Prof Buzzard ought be preferred over the opinions of Mr Miller and Dr David Kennedy as A/Prof Buzzard physically examined the plaintiff whilst the other examinations were conducted remotely.
The plaintiff
4 The plaintiff was born and educated in India. He completed a Bachelor of Computer Science in India and moved to Australia in 2003. Between 2003 and 2009 he completed a two-year Master of Computer Science degree and worked in taxi driving and various labouring jobs. His daughter was born in 2006. He commenced full-time employment with the employer in 2009, initially as a cleaner. His son was born in 2012. By that time, the plaintiff was working in logistics, but also undertaking cleaning shifts.
5 The plaintiff executed two affidavits in support of his application. In his first affidavit, sworn on 26 August 2019, the plaintiff stated that while doing the night shift cleaning role in early 2013, he began to suffer from back pain, which became severe in late March 2013, such that he was unable to get out of bed.[1] He returned to work in his logistics role. About six months later, he was transferred into the discharge and packing department and was required to wrap and pack pallets of produce and stock. The work involved heavy and repetitive lifting. His back pain increased. He was off work for six to eight weeks. He saw a neurosurgeon who recommended conservative management.
[1]Plaintiff’s Court Book (‘PCB’), 6 [9].
6 He undertook a graduated return to work, graduating to full time hours on light duties with restrictions. However, he was required to work in a cold environment. His doctor told him this was not good for his back. In April 2015, he resigned and successfully obtained full time employment in the USA as a computer programmer.
7 As at the time of swearing his affidavit, the plaintiff stated that he continued to suffer constant pain in his spine, fluctuating in intensity, which was aggravated by sitting or standing for long periods. Pain in his back increased throughout the working day due to twisting, turning or doing repetitive tasks. The pain often extended to his buttocks. His back ‘often lock[ed] up without warning’.[2] He had trouble sleeping at night and would often lay awake for hours, which made him exhausted and lethargic the next day. He tried to avoid strong prescription medication as he worried about the risk of addiction, and the impact on his ability to manage his work and duties as a parent. He was taking over the counter pain medication when the pain became severe, which occurred ‘multiple times every week’.[3] He had a prescription for Tramadol which he took at least once per month when he could no longer cope with ongoing back pain. He had tried physiotherapy, but it did not give him lasting relief. He was pleased to have found sedentary employment but worried that he would never be able to return to his pre-injury work if he lost his current job, and that he would struggle in the future to find work that would accommodate his restrictions.
[2]PCB, 7-8 [15].
[3]PCB, 8 [18].
8 He stated that the back pain and restrictions affected all areas of his life. He tried to rest his back so that he could cope with work. He struggled to stand while washing dishes or operating a vacuum cleaner. Consequently, his wife was doing the majority of the housework, which caused friction in their relationship. He was pre-occupied with his back pain and had lost interest in sexual relations. He was unable to play with his children on the trampoline or to do activities which involve twisting, running or standing for long periods and this upset him greatly. He could not run, jog or walk long distances and was finding it difficult to exercise. He could no longer play social cricket with friends or his children, and this was an important activity for him.
9 In his second affidavit, sworn on 29 June 2020, the plaintiff stated that he takes Panadol two to three times per week and occasionally Tramadol.[4] He performs back stretching exercises each day. His current employer accommodates his restrictions. He takes a break every 45 minutes or so to walk around the office. His back pain is constant, but fluctuates daily. He is often behind in his work. His sleep continues to be interrupted by back pain. His fatigue also affects his productivity at work and he often has to work longer hours to catch up. He is unable to drive long distances and is upset that he cannot take his family on long driving trips. He is unable to play soccer with his daughter, or basketball and baseball with his son. He cannot play social cricket with other expatriate Indians in California, which he would have liked to have done. He has gained about 10 kilograms due to inactivity, whereas he was previously very fit. His back pain has changed his life. It interferes with his sleep and his sex life. He has lived and worked in three countries but has now lost the ability to revert back to physical employment if there is a downturn in the software industry.
[4]PCB, 13 [4].
The hearing
10 At the hearing, the plaintiff said he currently works about 40 hour per week,[5] but takes more breaks due to his back pain, and then sometimes works at home to make up the time.[6] He is not paid for that extra time.[7] He said that prior to August 2013, he went to the gym once or twice per month to swim, use the treadmill or bicycle, but stopped after that time. He agreed that he had stopped playing club cricket in 2007 or 2008, but said that he had continued to play social cricket, as well as playing cricket with his children in the back yard. He also said that he played table tennis many times per week between 2007 and 2009 but has since played only two or three times per month.
[5]Transcript of Proceedings, Yalla v VWA (County Court of Victoria, CI-19-06194, Judge Davis, 7 July 2020) (’T’) 10.23.
[6]T11.30-31.
[7]T42.19-20.
11 He always has back pain, and it interferes with his sleep. He said that his pain is constantly at a level of about three out of 10. It worsens to five out of 10 when leaning or standing. When it is eight or nine out of 10, he cannot get out of bed.[8]
[8]T40.29.
12 He said that he last had treatment for his back in 2017, and has not seen a doctor or had further treatment since that time because there is nothing to be done and he is self-managing his condition. He said that in 2017 he had a flare up of pain and saw a doctor. The doctor recommended physiotherapy and he had eight sessions. Since then, he has been doing the same daily exercises given to him by that physiotherapist. He continues to work for the same employer.
Radiology
13 A CT scan on 30 August 2013 was reported as showing a moderately broad-based disc protrusion at L4/5 and a minimal annular bulge at L5/S1.[9] A MRI on 18 October 2013 was reported as showing, at L5/S1, ‘very minimal disc bulging’ and, at L4/5, ‘a broad disc bulge at L4/5 contacting both right and left L5 nerves and therefore potential source of radiculopathy in both the right and left L5 nerve distribution’.[10] There was a minor degree of canal stenosis.
[9]PCB, 16.
[10]PCB, 17.
Expert opinion
14 The plaintiff’s treating general practitioner, Dr Deen Shirzada, wrote to the Accident Compensation Conciliation Service on 5 February 2014 confirming that the plaintiff saw another doctor at his practice on 22 July 2013 with a lower back problem.[11] Dr Shirzada saw the plaintiff on 23 August and 28 August 2013 in relation to his lower back injury, and noted the history given of the development of lower back pain while working on the floor. Dr Shirzada confirmed that the plaintiff had physiotherapy; was referred to a neurosurgeon, Mr Lo, who recommended medical management; and was certified as able to work full-time on modified duties.
[11]PCB, 18.
15 On 19 March 2019,[12] Dr Shirzada reported to the plaintiff’s solicitors that he last saw the plaintiff on 15 January 2015, at which time the plaintiff was stable, and was ‘on modified duties and pain free’.[13]
[12]PCB, 20.
[13]PCB, 21.
16 On 20 May 2019, A/Prof Buzzard, conducted an impairment assessment on the plaintiff.[14] He took a history from the plaintiff that Mr Lo arranged for investigations which confirmed the presence of a bulging disc and recommended physiotherapy, which the plaintiff had for more than a year. He has seen a doctor in California and in Georgia since moving to the USA. He undertook further physiotherapy. He last saw a doctor for his back in 2017. He reported taking Panadol every few months when the pain was too much. The pain extended to both buttocks. He was able to undertake all the activities of daily living. He came to Australia for five days for the examination. A/Prof Buzzard accepted that the plaintiff had suffered a work-related L4/5 disc lesion and that as a result he was permanently incapacitated for his pre-injury duties. He found no symptomatic evidence of radiculopathy as defined in the American Medical Association Guides to Permanent Impairment. He therefore found that the plaintiff had symptoms only, no clinical signs, and assessed a 0% whole person impairment.
[14]Defendant’s Court Book (‘DCB’), 2-7.
17 On 26 August 2019, the Medical Panel conducted an examination of the plaintiff and took a history of gradual onset of back pain while heavy lifting as a store person, which became very severe in late March 2013.[15] There was a flare up in July 2013 when he was wrapping pallets at work. He could not get out of bed for about five days and had about six weeks off work.
[15]DCB, 8-13.
18 The Medical Panel concluded that the plaintiff was suffering from a left paracentral L4/5 disc prolapse relevant to the accepted lumbar spine injury, and that his condition had stabilised and was permanent. The Panel considered that the use of the Range of Motion Model was inappropriate as the plaintiff’s impairment could be adequately assessed using the Diagnosis Related Estimates Model. The Panel found that there was clinical signs of lumbo-sacral injury with no clinical evidence of radiculopathy. However, the Panel disagreed with the opinion of A/Prof Buzzard to the effect that there was 0% whole person impairment of the lumbar spine and instead assessed a whole person impairment of 5%.
19 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 15 May 2020. In his report dated 18 May 2020, Mr Miller noted a history from the plaintiff that, although the plaintiff returned to full-time modified duties in 2013, he had ongoing symptoms, which the plaintiff felt were ‘exacerbated by his requirement to work in a cold room’.[16]
[16]PCB, 24.
20 The plaintiff reported that his major problem was his low back, and that he suffered ‘ache, discomfort, and pain in the low back, occasionally radiating into the buttocks, groin, and thigh, predominantly on the left side’ as well as ‘difficulty with prolonged standing and sitting’.[17] The plaintiff continued to have occasional severe flare-ups of symptoms causing him to be unable to get out of bed. The plaintiff took paracetamol occasionally. He reported difficulty driving long distances, and occasional trouble walking long distances. He had difficulties with domestic activities which were undertaken by other family members. He had been unable to maintain or resume playing social cricket and table tennis.
[17]PCB, 24.
21 On examination, the plaintiff demonstrated limited range of motion in the thoracolumbar spine. There were no neurological abnormalities. Mr Miller concluded that the plaintiff had suffered an injury to the lumbar spine by way of musculo-ligamentous strain and aggravation of degenerative disease, which was associated with the development of a ‘chronic pain syndrome which influences the current clinical presentation and contributes to the overall fair prognosis’.[18] Mr Miller considered that the plaintiff had also suffered an adverse mental state reaction, which included anxiety, depression and a chronic pain syndrome. Mr Miller recommended an assessment by a psychiatrist.
[18]PCB, 26.
22 Mr Miller considered that the plaintiff had changed to a more sedentary occupation, which was consistent with the lumbar spine problem, and that he would continue to be managed conservatively. He opined that the plaintiff was unlikely to benefit from any form of spinal surgery and would permanently have reduced mobility as a result of his spinal symptoms. He would have difficulty undertaking work involving repetitive bending, lifting or lifting weights of more than five kilograms. He would also need to shift his posture on a regular basis. Mr Miller considered that ‘it is likely that the development of a chronic pain syndrome further impacts [the plaintiff’s] ability to work’.[19]
[19]PCB, 27.
23 In a report dated 25 May 2020, Dr David Kennedy, a sports and industrial physician, reported to the plaintiff’s solicitors that the plaintiff complained of aching and pain in the lower back, with an average pain level of three out of 10, but when standing or leaning forward, that pain could increase to five out of 10; some pain into the buttocks when the low back pain is more severe; pain the in the lower back when sitting, standing or walking for any length of time; restriction with repetitive bending, twisting or turning, as well as manual handling.[20]
[20]PCB, 29.
24 Dr Kennedy diagnosed work-related damage to the lumbar discs at L4/5 and to a lesser extent at L5/S1. Dr Kennedy felt that the plaintiff should be able to continue with his current employment and that he was permanently unfit to return to his pre-injury duties. His prognosis is ‘guarded’ as the plaintiff ‘would have to continue to be careful in relation to his physical restrictions involving any load or stress on his lumbar spine, as this could result in further deterioration’.[21]
[21]PCB, 33.
Findings and reasons
25 It was common ground, and I therefore find, that as a result of his work for the employer, the plaintiff suffered an injury to the lumbar spine, whether by way of frank injury or of aggravation of pre-existing degenerative changes, composed of a disc prolapse at L4/5, with associated pain, restriction of range of motion, and referred pain into the buttocks. The weight of the medical evidence is to the effect that, as result of the organic injury to the lumbar spine, the plaintiff is permanently incapacitated for his pre-injury or other heavy work, will permanently suffer from some pain and restricted movements, and will need to shift posture regularly and avoid lifting heavy weights.
26 I found the plaintiff to be a straightforward, quite understated witness, and I accept his evidence, which was largely unchallenged, as to the pain and restrictions he suffers due to his work-related injury to the lumbar spine. His evidence is consistent with the histories given to his treating and examining specialists.
27 I consider that he has been quite stoic and sensible in self-managing his condition as best he can, avoiding heavy analgesic medication wherever possible. He does daily exercises that were given to him by a physiotherapist. He takes Panadol when he cannot manage the pain. As a previously fit and active man who enjoyed social cricket and table tennis and was able to work full-time in a heavy occupation, the contrast with his post-injury situation is instructive. He is a relatively young man who suffers from constant back pain which interferes with his sleep, slows him down at work, prevents him from playing sport socially or with his children, prevents from helping his wife with domestic chores, and prevents him from enjoying sexual intimacy with his wife. He has lost the flexibility of working in heavy employment if the job market in the computer industry experiences a downturn, and he now worries that, if this happens, he may not be able to support his family. His pain is exacerbated to a level of five out of 10 by leaning or standing, activities which a person must do many times per day. He cannot walk, stand, drive or sit for long periods. When his pain is very bad, he cannot get out of bed. At the age of 39, he will suffer from these consequences for the balance of his life.
28 Whilst I acknowledge that he retains the capacity to work full-time in an occupation for which he is qualified, and that he does not require ongoing medical treatment nor take daily heavy analgesic medication, I consider in all the circumstances that the consequences of his lumbar spine injury are at least very considerable when compared with other cases in the range of impairments of the lumbar spine.
Conclusion
29 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering resulting from the injury to the lumbar spine sustained while working for the employer.
30 I reserve the question of costs.
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