Zhang v Joy Foods Pty Ltd
[2017] VCC 1703
•21 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-14-04050
| FANG MEI ZHANG | Plaintiff |
| v | |
| JOY FOODS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16 and 20 November 2017 | |
DATE OF JUDGMENT: | 21 November 2017 | |
CASE MAY BE CITED AS: | Zhang v Joy Foods Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1703 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application –injury to low back
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Leave to bring proceedings for pain and suffering and pecuniary loss
damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Ms K Manning | Zaparas Lawyers |
| For the Defendant | Mr D Myers | Russell Kennedy |
HIS HONOUR:
1 In this application the plaintiff relies on an injury to and impairment of the low back. She was injured in an incident on 28 September 2011 in the course of her employment. She was awkwardly lifting a tray of chocolates that involved a twisting movement. She suffered an admitted compensable injury to the back.
2 The defendant conceded at the outset and in submissions that causation was not in issue. In the end the issues concerned whether the impairment of the low back was substantially organic or was non-organic, an attack on credit together with the reasonableness of her attempts to retrain and rehabilitate for suitable alternative employment.[1] Leave is sought for both pain and suffering and pecuniary loss damages.
[1]Transcript (T) 37-39,204-205
3 The plaintiff is 44 years of age with virtually no English language skills. An interpreter was required in order for her to swear her three affidavits and also in giving oral evidence. Apart from a few English classes she has really had no English based education. In fact she only did one year of secondary schooling in her native China. Her work record is very good and she has been involved in unskilled manual labour both here and in China. She started employment in Australia only a few weeks after arriving in 2008. She commenced with the defendant in May 2010.
4 In the years prior to the incident she had some back symptoms but the medical notes indicate they were only intermittent.[2] Notes from the Apex Chinese clinic and from the Box Hill Family Clinic were relied on by the defendant. These were submitted as impugning her credit and also leading to erroneous histories taken by doctors that meant their opinions were not sound. These computer driven notes are extremely brief and could not possibly contain anything like a complete record of what the exchange was between doctor and patient. They do not reveal any time off work, nor spinal radiology being ordered and no referrals to specialists or to physiotherapists appear.
[2]Exhibit A
5 It is a constant problem in this jurisdiction when notes are inevitably put into evidence without the doctor being called. A great number of these notes appear to be in a context of extremely widespread complaints and several of the records speak of Chinese treatment that basically ranges from head to toe. [3] A lot of them seem more focussed on abdominal or menstrual difficulties. When the “Actions” part of the notes are considered, investigations seem to be directed more towards those issues than any discrete back condition.[4]
[3]Exhibit A p178-179
[4]Exhibit A p178-179,186-187
6 The notes at both clinics are consistent with very specific low back focus on 29 September and on 4 October 2011.[5] This is in contrast to the earlier that are much more general and speak of all sorts of different body areas.
[5]Exhibit A p178,184
7 More than nine years ago a WorkCover claim dated 11 July 2008 for “sore back” was signed by plaintiff. [6] She received no WorkCover payments benefits and it was just to ensure the insurer paid medical expenses.[7] That 2008 document invites little more than speculation about something many years ago and which was followed by years of working in factory labour. Her credit was not impugned by this claim form. In the initiating claim signed by her on 6 October 2011 she informed the defendant about the 2008 back claim. I do not accept it is of any relevance now given the state of the evidence.
[6]Exhibit 1
[7]T 123
8 In the end I am satisfied any pre-existing low back symptoms referred to in these sparse notes were of no real consequence in terms of disabling her for work or in regard to life generally. She worked full-time in demanding manual factory jobs and on the probabilities any pre-existing symptoms are of no probative value in assessing an impairment and its consequences now.
9 Her treatment journey since the incident on 28 September 2011 has been long and more varied than is usually seen. Firstly, this is because she has been motivated to get help and has actively pursued two treatment streams. These are orthodox medical treatment referred to as “Western” by counsel and treatments from a number of doctors following more of a “Chinese” approach.
10 Secondly, and again somewhat unusually in these applications, she clearly suffered an extremely adverse reaction to facet joint injection treatment in November 2012 at the hands of Dr Gassin. The reaction to this was so bad that he sent her off to hospital with his handwritten referral letter.[8] She was admitted to hospital at Eastern Health as an inpatient for some ten days. When discharged she was given a walking frame.
[8]Exhibit 1
11 While there was some suggestion of a possible emotional aspect in her behaviour before that long hospital stay it did not lead to a view that organic cause was absent.[9] Not surprisingly the probabilities are such a sudden, dramatic change to treatment plans that landed her in hospital for ten days, led to a heightened emotional or psychological reaction coming on top of her organic low back impairment that she was having the injections for. She also suffered a separate and unexpected event in the course of her Chinese treatments when a Chinese practitioner bent a needle after using it during acupuncture.
[9]Plaintiff’s Court Book (PCB) 82D, Defendant’s Court Book (DCB) 32
12 It is significant that prior to this psychological reaction to the adverse injection results no doctor on either side questioned her genuineness nor suggested any illness behaviour that was in any way inconsistent with organically based symptoms. I will deal with the medical evidence later but it is worth noting at the outset what was said by doctors who examined her early on for the insurer. Dr Berry saw her only six weeks after the incident and without the MRI reports diagnosed musculo-ligamentous organic injury. He was a little equivocal but said “I would think that superimposed on this there is a degree of illness behaviour.” [10]
[10]DCB 32
13 Two doctors saw her in 2012 for the insurer and prior to this unexpected bad reaction to the facet joint injection treatment. They were Dr Andrew Miller, occupational health consultant, who saw her in March 2012 and the surgeon Mr Michael Shannon who examined her on 19 November 2012.
14 Dr Miller made no critical comments of her at examination. He found “This 39-year-old factory worker has sustained a chronic incapacity injury to her lower back.”[11] He said that the underlying pathology was lumbar intervertebral disc lesions caused by her employment. He thought she was not capable of doing her pre-injury duties and was only capable of working with some very significant restrictions for an unskilled manual worker. These were to avoid lifting in excess of 3kg, movements of her back beyond a comfortable range, forceful pushing or pulling activities and prolonged static postures such as sitting or standing for more than 30 minutes. There was no comment about non-organic cause.
[11]Plaintiff’s Court book(PCB) 138.1
15 Mr Shannon examined her and again made no real comment that challenged the organic nature of her back problem. He had been sent a video of her.[12] He did not make any critical comment with respect to what he saw on that film against what he was told and found at clinical examination. His opinion was clear that “Mrs Zhang is suffering from significant pre-existing lower lumbar disc degeneration associated with facet joint arthritis.”[13] This condition had been aggravated by work and while he thought there was some non-organic features to her presentation nevertheless he made this very clear comment “I think that her pain is essentially mechanical and discogenic in origin rather than facet joint.”[14] He went on to say “realistically I do not think that she has a current work capacity. She has a significantly limited work capacity. She has few skills and qualifications and a very limited command of English.”[15]
[12]Exhibit 3
[13]PCB 138.9
[14]PCB 138.9
[15]PCB 138.10
16 The evidence shows that after her very unfortunate reaction to spinal injection treatment and her prolonged inpatient hospital stay, the psychological or emotional reaction she then developed led some doctors to question her genuineness and diagnosed illness behaviour.
17 Assessing the situation now, I am satisfied that the psychological or emotional reaction has now all but ceased. She is left with an organically based low back impairment that she has had since 28 September 2011. Any consequences of that impairment for her have to be assessed now and then have to be judged by comparison with other cases in the range of possible impairments to determine whether those consequences may be fairly described as being at least very considerable.
18 A great deal of medical opinion has been gathered by both sides. Given the task before the court the more up-to-date opinions carry the greatest weight in making the assessment that is required now. The defendant has not had her seen by any doctor since July 2014.[16]
[16]Defendant’s Court Book (DCB) 44
19 Right from the earliest days after the incident she has been compliant with and attentive to getting treatment. After enduring pain overnight she went to see a Dr Wang in Box Hill the next day. He ordered spinal x-rays.[17] She saw him again on 3 October 2011. He said he did not do WorkCover cases. On 4 October 2011 she saw a Dr Chan practising Chinese medicine in Forest Hill. She also went to see a Dr Lim, Croydon Health Clinic, at about that time. He ordered a CT of the spine on 11 October 2011 which showed disc protrusions at two levels being L4/5 and L5/S1 with both impinging on the theca.[18]
[17]PCB 129
[18]PCB 130
20 Dr Lim referred her off to another Chinese doctor on 3 November 2011. This was Dr Miao who commenced acupuncture treatment. She saw him several times up to 18 November 2011. He practices at the “Modern Traditional Chinese Medical Clinic” and describes himself as a “Doctor of Acupuncture”.[19] Then WorkCover apparently suggested she have physiotherapy. Consistent with her extensive efforts to undergo treatment in an attempt to recover from her back pain, she attended at a Boronia physiotherapy clinic for some four weeks starting in November 2011.[20]
[19]PCB 90-97
[20]PCB 81-82
21 The physiotherapist then suggested a pain clinic was advisable. She attended a pain clinic four or five times for “Western” medical treatment until WorkCover stopped paying.[21] As well as these various treatments from different doctors she was on painkilling medication throughout this time and indeed is still on prescription painkillers now over six years later for physical low back pain.
[21]T80-81
22 She then left on 28 December 2011 for China on a trip that had been prearranged for some time. She attended doctors in China at a hospital before returning to Australia in February 2012. Heat pack and herbal medicines were also used in China. On her return she continued treatment with a Dr Wu, Canaan Clinic. Traditional Chinese medicines were prescribed by him. WorkCover ultimately refused to pay for his further treatment in December 2012.[22]
[22]PCB 9
23 She had returned to work with the defendant from March to September 2012 but never got back to full duties or full-time hours which she had worked prior to the incident on 28 September 2011. Fifteen hours per week was the maximum she reached and even these limited hours were on restricted duties.[23]
[23]PCB 10
24 In July 2012 Dr Lim had sent her to Mr R Bittar, neurosurgeon, for specialist treatment. After she saw him in August 2012 he referred her to Dr Gassin for further treatment by way of facet joint injections. She was booked to see him on 10 October 2012. Before getting to see Dr Gassin she was at work on 13 September 2012 when her back pain worsened and her legs felt weak. She told her supervisor and left work early. The leg did not move properly. She then lost balance falling in the car park.[24] She has not worked since. I have already referred to the very unfortunate consequences from Dr Gassin’s spinal injection treatment when she got to see him at the very end of November 2012.
[24]PCB 10
25 Her conservative treatment regime has gone on now for over six years. She had further physiotherapy at Lilydale Hospital at Dr Lim’s referral. She also paid for Chinese massage out of her own pocket.[25] When overseas visiting China she continued treatment there and underwent acupuncture and massage treatment as well is taking Chinese herbal medications.[26]
[25]PCB 26
[26]PCB 35,36
26 She has kept seeing Dr Lim every month or more right up to the present time.[27] She is still taking painkilling medication prescription. She also uses massage and other machines for exercise type therapy at home. Earlier this year she required morphine based patches when her pain was very severe.[28] She continues to do exercises at home that she was shown by a doctor.[29]
[27]PCB 36, T 103-104
[28]PCB 36
[29]T 127
27 In more recent times the Chinese treatment stream was taken up again and this time it was with a Dr Gu, Knox Chinese Healing and Myotherapy clinic.[30] He diagnosed lumbar disc protrusion at the initial consultation on 31 March 2016. She had five visits to him in early 2016 and he administered a large number of Chinese substances to her as well as acupuncture.
[30]T 105-106
28 She went back for treatment for another four visits in early 2017 when as well as a multitude of substances including granules she had electro acupuncture from him. Other conditions are mentioned by him but her low back problem is consistently recorded. She freely admitted she had earlier got some relief from his various treatment approaches. As to the site he was treating in the witness box she pointed to her lumbar area.[31]
[31]T 105-106
29 On the probabilities these Western treatments modalities from Dr Lim and the Chinese approaches of Dr Gu and others are directed to organically based back pain rather than any emotional or psychological problems.
30 There was some attack on credit. Five videos were tendered. The first was back on 30 October 2012. There was about nine minutes showing her driving, in a supermarket and walking.[32] It showed nothing strenuous. Her young daughter was carrying the shopping basket at all times and also put it in the car. It was obvious when the plaintiff was walking in the street she walked with a limp. There is nothing in this video that I found inconsistent with the evidence and indeed it confirmed that she suffered symptoms that led her to act in a way that corroborated what she said in her three affidavits.
[32]Exhibit 3
31 The second video is more than three years old and was taken on 30 July 2014.[33] It partly showed her for about two or three seconds walking to her car when her husband drove her to see Dr Fraser for the defendant. In the rooms he reported she had collapsed to the floor when she said her leg gave way. After leaving she is shown walking very gingerly and being supported by her husband.
[33]Exhibit 4
32 When she got near home later she is walking more freely but not in a normal manner for a woman of her years. She stated in cross examination she was somewhat better after resting in the car. I saw nothing inconsistent with what she said and what the video showed. It is very out of date. She was in no way evasive in dealing with what was suggested to her. Her credit was not impacted by this old film taken after a nasty incident the doctor said occurred in his rooms and at a time when she was certainly hampered by the additional burden of the emotional impact of Dr Gassin’s unfortunate spinal injection treatment. She has overcome that now.
33 Exhibit 5 is a few minutes taken two years ago on 20 October 2015. It showed her clearly limping, having problems getting out of a car and holding her back. What these and the later films show is a person with the fluctuating symptoms that are severe at times and at other times are not so severe.
34 The most recent videos were shown in July and September this year. [34] These need to be viewed in a context where the plaintiff has frankly conceded she has improved to some extent but more importantly has days when her pain is very severe and days when it is not. This lady has not claimed she is an invalid. Exhibit 6 in July 2017 shows nothing relevant in the very short film that is inconsistent with her complaints.
[34]Exhibits 6,7
35 The two days shown in September show her walking with a slight limp at one stage and abnormally slowly for a lady of her years. It is very significant that her young daughter is really doing all the active things by way of lifting items into the boot, bending over and even down to the ground while the plaintiff does more than stand there looking at the daughter do it all.[35] This could be said to be hardly normal for a mother out shopping with a young daughter.
[35]Exhibit 7
36 In all of the films tendered there were large unexplained breaks in what was shown. Also these are merely the briefest snapshots taken over a span of six years of back pain. No strenuous, heavy or repetitive activity involving stress on the spine was shown. On occasions when some activity was shown that involved carrying or bending her young daughter did it. The videos did nothing to detract from the plaintiff’s credit and her account of a constant but varying level of back pain. Overall these videos supported her case.
37 There were other topics she was taken to as to credit such as what she had told Nabenet now over three and a half years ago concerning impediments to her finding work. Similarly when asked whether she herself had sought work she stated that she approached personal contacts by way of Chinese friends she knew but nothing had come of them. She did not know where else to apply for work was the gist of her evidence.
38 Reasonableness is the yardstick of the attempts s134AB(38)(g) requires. Courts are also reminded of the need to be realistic and to keep the real world of the open employment market in mind when looking at capacity for alternative jobs. With daily pain she has little to offer. This is a lady getting towards middle age and I do not need evidence when we are daily reminded of employment difficulties for unskilled manual workers as they get older. She barely speaks a word of English, has difficulty at times comprehending simple questions even when translated.[36] She has no education or qualification.
[36]T 123
39 Other than enquiring of Chinese people she knows who can at least understand her and trying to improve her English in classes, realistically there is little if anything else she can do in light of the professional group Nabenet’s failure to get her anywhere in alternative employment. [37]
[37]T 79,94
40 She cannot realistically do much more than enquire of people in her own community and attend some language classes which she is doing currently. English classes were also tried back in 2014 when she was under Nabenet but that did not get anywhere. [38] The Nabenet assessment material is now years out of date and nothing came her way from them in the eighteen months or so she was under their umbrella. Nor did the defendant offer anything after September 2012 in spite of her working for it from May 2010 with no evidence of any unsatisfactory performance.
[38]T 92
41 I had the advantage of hearing and observing the plaintiff over three days. Her English skills are really non-existent. Even with professional interpreters engaged it was clear there were translation difficulties. It was also apparent that Mrs Zhang is a relatively unsophisticated, simple woman. She at all times attempted to tell the truth. I found no evidence of exaggeration about her back pain. Indeed it is corroborated by the years of treatment both of the Western and Chinese variety from numerous practitioners in two countries.
42 She made a number of admissions against interest. She readily conceded some improvement in her back pain and that her leg was no longer giving way as it did.[39] In a similar vein she made concessions against interest to doctors in recent times such as Dr Slesenger in June 2017.[40] These were consistent with a reliable, honest witness who under a very lengthy cross examination over three days really told it how it was with no embellishment or evasion. There was no sign of emotional or psychological issues in her presentation.
[39]T 99-100
[40]PCB 121
43 I accept the evidence that she has suffered constant physical back pain at times extending into the left leg since the incident.[41] It can be more severe and less so at other times. She is still on daily Mobic and has required different morphine based painkillers on prescription over the years since 28 September 2011.
[41]PCB 11,12,25,26,35
44 Dealing with the thirty or so reports tendered plus radiology reports, there are a number that are so dated they do not assist. As far back as 2012 her “Western” general practitioner Dr Lim, who has treated her continuously over the last six years, diagnosed organic back injury. Even then he pessimistically stated “The way she is at present, she certainly cannot return toward pre-injury duties. There are no alternative duties that can reasonably be offered to her on an ongoing basis.”[42] Time proved him correct as when she did get back to work, even on restricted duties, she could not get beyond fifteen hours a week. [43]
[42]PCB 40
[43]T 124
45 His other reports continue along the same lines and outline her extensive and varied treatment paths. In 2015 he said her pain will be long term and even with analgesia and therapy, “she will be in chronic pain, and her back injury will never return to normal.”[44] Finally in 2017 he said of his patient in regard to her radiologically confirmed disc injury “As she has not been working, the backbone is currently repairable. She continues to feel stiff, and any pending or heavy lifting almost immediately aggravates her pain. She has therefore been very careful to avoid these. These are present symptoms, which are the residual effects of her injury.” [45]
[44]PCB 49
[45]PCB 50
46 He concluded his up to date last report with a very gloomy prognosis “The lower back pain is a permanent feature of her daily life, and she will never be able to go back to her pre-injury duties. The pain and bilateral sciatica or flare up from time to time, even with the most careful precautions.”[46] I consider this doctor knows her best of all. When a realistic view is taken of the provisions of section 5 of the Act I consider his opinion to be she is incapable of any suitable employment and will remain so for the foreseeable future. I accept that opinion.
[46]PCB 50
47 The next doctor in the line of the “Western” treatment was Professor Bittar who saw her in August 2012. He thought she presented with a fairly clear-cut case of work-related lower back pain and it was either from the discogenic or from facet joints. He referred her to Dr Gassin for facet joint diagnostic blocks. He last saw her for treatment in 2012 and said “taking into account the duration of her symptoms as well as their nature, together with her MRI findings, it is likely that she will suffer from ongoing symptoms and disability in the long-term.”
48 He had the benefit of reviewing her in June 2017 for medico-legal purposes. He found the objective sign of physical injury in muscle spasm and clearly stated “In my opinion, there is an organic basis for her pain. I did not detect any evidence of abnormal illness behaviour on observation and examination of her.”[47] Putting aside any mental or behavioural aspect he said her organic back injury alone meant she had no capacity for her old job nor any alternative suitable employment. [48] I accept his opinion as realistic.
[47]PCB 74
[48]PCB 75
49 Dr Gassin’s opinion is out of date. After she consulted him in October 2012 he administered the spinal injection treatment on 29 November 2012. He wrote to the insurer saying she suffered from back pain and sciatica resulting from the incident at work and sought approval for his facet joint injection treatment in several levels of the lumbar spine. There is no further material from him except his handwritten letter of 4 December 2012 he gave her to take to hospital after her very bad reaction to his injection treatment. As already referred to she was immediately admitted as an inpatient for the next ten days.
50 The two physiotherapy reports describe physiotherapy sessions that are now six years ago. Apart from describing clear disc injuries at L4-5 and L5-S1 levels and suggesting a pain clinic they are of little assistance in making an assessment now. The prognosis was guarded at that stage as treatment options had not then been exhausted. However even at that very early stage the work restrictions put on her by the physiotherapist were so extensive they amount to saying this unskilled manual worker had no real work capacity.
51 Turning then to the doctors in the Chinese treatment stream, Dr Wang gave a brief report and clinical notes but it is clear he advised her to go off and see a Workcover doctor back on 3 October 2011. The report is of no assistance.
52 Dr Wu also recorded some 35 visits for low back treatment but has not seen her for over five years. His opinion was that she needed constant treatment and ended with “I strongly suggest that she should not do any more heavy labouring duties, no bending, no squatting, and no repetitive flexing of spine, no heavy lifting.” It is a dated opinion but confirmed real work limits.
53 Dr Miao reported in rather alarming terms but perhaps this is no surprise after he bent a needle he had inserted in her spine and she became too frightened to go back to him.[49] He said that due to a protrusion of the lumbar intervertebral disc “This patient’s condition is deteriorated to an unusual and unbelievable status, which is beyond the words to describe. I doubt whether an immediate operation could save her damaged or pressed L5 nerve root. Apparently, Ms Zhang has no work capacity due to her very weak left leg muscles; she has become a disabled person.”[50]
[49]T 115,117
[50]PCB 97
54 I do not give much weight to his opinions as his reports read as though he was trying to justify the treatment he had given and urge her to follow his recommendations for further traditional Chinese medicine approaches to her problem. Much of his report describes Chinese expressions that have not been translated. He essentially wanted her to have further electro acupuncture.
55 Dr Chan’s 2012 report does not assist now and he was another doctor she had apparently seen for acupuncture.[51]
[51]PCB 98
56 Turning to the medico-legal reports Mr D Brownbill reported in 2013 and 2015. In 2013 he found her straightforward with no embellishment and diagnosed organic injury to the lumbar spine with intervertebral disc derangement. At review in July 2015 there was some apprehension in her demeanour but he still diagnosed organic lumbar spine injury.
57 He last reported in October 2015 and gave his perspective on her emotional reaction “I had also noted that she had developed an emotional reaction to pain and activity restrictions which may be accentuating her own perception of ongoing pain however I also considered that on probability there was significant ongoing organic pain which has contributed to her incapacity for work. I consider that realistically noting her ongoing symptoms of pain in the radiological demonstration of multiple level degenerative changes she would not be employable in the open market”.[52]
[52]PCB 60
58 While Mr Brownbill has not seen her for over two years I accept his opinion that due to organic low back impairment she has no realistic employment capacity.
59 Dr M Mittal examined the plaintiff once in 2015. She is a pain physician and specialist anaesthetist. She diagnosed discogenic disease at L4/5 and L5/S1 and facet joint arthropathy particularly on the left side. While she thought there could be potential for improvement from further pain management she nevertheless stated she was not fit for pre-injury duties and “At this stage she is not fit for alternate duties or any other duties since her training has been fairly limited and language barrier also acts as a significant barrier.” [53]
[53]PCB 103
60 A recent medico-legal report comes from Dr Slesenger. He saw her in 2015 and diagnosed her organic aggravation of lumbar degeneration but he noted she had become anxious and there was evidence that she had developed a chronic pain disorder. Nevertheless his diagnosis was organic when he listed “ 1.Aggravation of pre-existing degenerative disease of the lumbar spine 2.Chronic pain disorder 3.Psychological impairment, though this is outside my area of expertise.”[54] He ended his first report by saying he did not anticipate that she will return to work in an open job market.
[54]PCB 111
61 He was then sent some material in October 2015 about suggested alternative jobs and he did not consider that she was capable of any of these. He really gave an opinion that embraced the matters to be considered under section 5 when he said that due to pain, poor response to treatment, past education, employment experience and the absence of qualifications that “I am of the opinion that she will not be able to return to work performing alternate duties.”[55] I accept that opinion is realistic and well-founded on the evidence.
[55]PCB 115
62 Dr Slesenger then had the advantage of a re-examination in June 2017. He provided a very detailed thirteen page report in which he considered that there had been some modest improvement since he had last seen the plaintiff. He reviewed a number of reports sent to him and noted improvement in her mood and the anxiety symptoms had somewhat resolved.
63 He answered a number of questions specifically directed to the organic nature of her back complaint and he considered that her current impairment as at June 2017 was “due to an aggravation of pre-existing degenerative disease of the lumbar spine and that the current impairment has an organic basis.”[56] As to the non-organic aspects his opinion was clear “As noted above, whilst I noted non-organic features in the initial evaluation, I now note that the organic features on examination have settled and I am satisfied that the residual impairment is organic in origin.” [57] Counsel agreed that reading his report he obviously meant the “non-organic features” had settled and there was a typing error.
[56]PCB 126
[57]PCB 126
64 As to work the organic effects meant she could not return to her previous occupation and in relation to alternative work he put very major restrictions on a person with no qualifications other than manual work when he said “No push, pull, carry or lift over 5kg. Sedentary duties only. No repetitive bending and twisting. 4 hours a day, 4 days per week (non-consecutive days).”[58]
[58]PCB 127
65 Put it at its absolute highest, he thought less than half normal hours of work was her limit. But when the restrictions are carefully examined they effectively mean for an unskilled, non-English speaking, manual labourer there was no capacity at all for employment in the real world of the open employment market. I accept Dr Slesenger’s opinion as an accurate reflection of her current incapacity. Given the amount of treatment she has had and the length of time involved this will probably be the situation for the foreseeable future.
66 With respect to the opinions obtained on behalf the defendant I have already referred to what Dr Miller and Mr Shannon thought prior to her adverse reaction to spinal injection treatment. Every report tendered by the defendant is now well over three years old. Only very limited, if any, assistance can be obtained from such outdated medical material and I do not accept that it reflects the plaintiff’s current position accurately.
67 The first report was from Mr T Gale, general surgeon, who saw her in January 2013 only a few weeks after she was discharged from the ten days in Eastern Hospital. Not surprisingly he thought she was showing features of illness behaviour and emotional or psychologically based secondary factors. However even he conceded at that stage “It is possible that as a result of the worker’s employment in September 2011 she suffered a symptomatic aggravation of age-related and constitutionally-based degenerative changes in the lumbar spine with some indefinite symptoms affecting the left leg. ”[59] It seems he was saying that the non-organic component was “probably superimposed upon the physical injury”.[60] That would be a reasonable view on the probabilities, her having just come out of hospital after a very unexpected and unfortunate result from orthodox treatment directed to her organic spinal impairment. That superimposed reaction does not on the evidence in any way detract from the fact that the cause of her spinal impairment was and still is organically based.
[59]DCB 3
[60]DCB 3
68 Dr David Barton, occupational physician, also only saw her once and that was in 2013. He also felt there had been a level of complaints that went beyond the organic injury but he went a further step in saying that there was deliberate exaggeration and contrivance on her part.[61] He conceded she may have developed a soft tissue injury in the back area initially but she had developed abnormal illness behaviour and there was deliberate exaggeration. Put bluntly this was straight out dishonesty he was reporting.
[61]DCB 10
69 I reject his opinion. Firstly this doctor is on his own in considering there is deliberate contrivance and dishonesty on the part of the plaintiff. Secondly he only examined her once. Thirdly he saw her at a time when she was labouring under the considerable emotional and psychological stress following her hospitalisation. Fourthly that emotional and psychological stress now has virtually gone. Fifthly he does not in any way properly set out his reasons for concluding that this worker with a good employment history would suddenly lose the motivation to work. Sixthly he does not explain the inconsistency between this so called deliberate contrivance when all her efforts have been towards rehabilitating itself by pursuing many modes of treatment. Seventhly he does not even comment about the radiological findings.
70 The final report is over three years old and is from Dr Kevin Fraser, rheumatologist, who examined her in July 2014. It is a report that runs for less than two full typed pages. It is so brief I do not accept, sitting in this jurisdiction daily, that this is a comprehensive medico-legal report encompassing proper examination, proper history and a proper consideration of all the material that would have been available to him or at least to the defendant’s solicitors at that time. He does not for example describe any enclosures from other practitioners that were sent to him and evaluated. He thought that perhaps she sustained soft tissue strain at work but it had long since resolved and there had been a marked non-organic overreaction. He did not say when it resolved or explain why in adequate terms.[62]
[62]DCB 45
71 He did not take Dr Barton’s step of suggesting deliberate dishonesty on her part but I do not accept his opinion for the reasons set out in the previous paragraph. It is also an opinion that is out of date. It came at a time when her emotional psychological response was very different to the current position. His opinion is not properly argued or properly reasoned. It is based on one examination only.
72 A large number of vocational assessment and other documents from Nabenet were tendered. They do not assist and also do not impugn the plaintiff’s credit or motivation for a number of reasons. Firstly they are three or more years out of date. Secondly they do not take sufficient account of her language skills being virtually non–existent. Thirdly even in China she had limited education and is a relatively simple lady. Fourthly there was no realistic consideration of the various matters section 5 of the Act requires. In the end and after hearing from this worker over three days, in my view Nabenet’s approach is more theoretical than real as to both residual capacity and retraining potential.
73 For the reasons mentioned I grant leave to bring proceedings for pecuniary loss damages and it follows that I grant leave also for pain and suffering damages.
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