Diab v VWA [2019] VCC 119 (15 February 2019)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised

Not Restricted

Suitable for Publication

ROLA DIAB	Plaintiff

v

VICTORIAN WORKCOVER AUTHORITY	Defendant

JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13,14,15 February 2019
DATE OF JUDGMENT:	15 February 2019
CASE MAY BE CITED AS:	Diab v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 119

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Ms S Lean	Zaparas Lawyers

For the Defendant	Ms B Myers	Hall and Wilcox

1 The plaintiff seeks leave for an impairment of her spine pursuant to paragraph (a) in relation to both pain and suffering and pecuniary loss damages. She is 35 years of age and came to Australia from Lebanon when she was four. She has completed year twelve at school and presently works part time and is studying to qualify as a teacher’s aide.

2 She worked for IGA for about four years and was promoted to supervisor. Then she married and had three children.[1] Ms Diab then ran a Facebook business, “Little trendy Tots”, involving purchasing children’s clothes from China and bringing them to Australia and selling them here on the internet.[2] This business operated it seemed for about three years. She suffered injury while working for Dusk Australia in a retail home-wares store due to the physical tasks involved in her job. There was no particular trauma suffered but a gradual onset of back symptoms.

3 She commenced with Dusk on 1 November 2014 as a casual. She then moved up to an assistant store manager position in May 2015 working thirty four hours a week. Ms Diab then progressed to a full time store manager in November 2015. This was no surprise as her resume written in 2015 speaks for itself in regards to her many capacities that go well beyond physical labour.[3] She was even studying a tourism course at the same time she worked for Dusk.

4 Ms Diab has continued to work for Dusk up to the present time but after first noticing back pain in early 2016 she ceased being a store manager. Her work for Dusk now involves her being on limited duties in customer service as well as on limited hours of three hour shifts, usually only one day a week, but at times it is more. She has only one unit to complete in her teacher’s aide course and should do that within a month or so. This course involves spending a maximum of ten hours per week studying and it is all done online.[4] Then completing one hundred placement hours, of which it seems twelve have been done already, would mean she was a qualified primary school teacher’s aide.

5 Firstly the defendant admits that she suffered injury by way of aggravation of her pre-existing degenerative spinal condition but that was a temporary aggravation that has now ceased. Secondly if I am satisfied that she still has a spinal impairment suffered in the course of her employment, then the defendant says she has a retained capacity for full-time work in suitable employment. Thirdly any pain and suffering consequences do not meet the “serious injury” test and while they might be significant, they could not be fairly judged as very considerable.

6 The plaintiff has not proved any permanent impairment of her spine as a result of aggravation of her degenerative condition at work. If I am wrong on that and if there are still ongoing symptoms as a result of that aggravation, then there are no pain and suffering consequences that could be judged by comparison with other cases in the range of possible spinal impairments and fairly described as at least very considerable. Similarly the plaintiff has not proved any permanent 40% or more loss of earning capacity due to the aggravation.

7 The opportunity to both observe and hear a plaintiff give evidence over several days in these applications is of great importance in evaluating their reliability. This is particularly so when, as in this case, the objective pathology shown on radiology is far from major. Sometimes demonstrated objective evidence of spinal injury is so clear on the scans that it can almost point to a significant injury on its own. That is not the case here, even with the sophistication and detail of an MRI.[5]

8 Another matter of some importance is that hearing cases in this jurisdiction almost daily the recent treatment has been minimal. There is some intermittent usage of medication but looked at overall the need for and resort to treatment over the last year or more has been about as little as is seen in these spinal impairment applications.

9 A number of matters threw doubt on credit. A report from Mr B Love, a doctor engaged by her solicitors speaks of her relating how she was referred to Professor Bittar for treatment but him not advising surgery. Then in court she said she had not even seen him although then it seemed she was saying she did not go ahead with the appointment because of some information about cost.[6] Whatever the truth was her evidence was unsatisfactory. It is hard to see how about how Mr love could get this simple fact so wrong.

10 Ma Diab told the court and various doctors about how long her back symptoms allowed her to sit. This evidence was inconsistent. In court she said her maximum sitting tolerance on a good day was up to an hour.[7] But in terms of what the histories were she gave to doctors about sitting, it varied from 20 to 30 minutes to 10 to 30 minutes depending on good and bad days.[8]

11 Just to take sitting, there were three videos shown of the plaintiff’s activities in 2018.[9] True it is that these are no more than snapshots of her life but nevertheless they are very informative. She sat on 17 January 2018 in a camp chair at the Coburg Lake for close to two hours. Apart from a short break when she got up without apparent difficulty, she was essentially sitting for not much less than four hours overall that afternoon in a chair that was certainly not of any ergonomic design. The activities shown in this video included her running at one stage with a friend’s son while carrying a chair and after getting up from a lengthy period of sitting. This video was very inconsistent with the evidence in her affidavits and what she would have the court believe about sitting as well as a number of other activities.

12 I do not accept the plaintiff has any real disability in terms of the capacity to sit for very long periods of time without symptoms. Her back does not cause an alteration in posture or prevent her maintaining that sitting position and nor does it restrict her in any real way when she stands up.

13 While on the videos tendered, in the second video she was shown over some hours assisting her parents move house. She loaded and unloaded items into a vehicle from premises and then vice versa at the property they were moving into. She carried items at times in both arms, some were large in size, she bent over frequently, walked normally and performed a number of physical tasks without any sign of discomfort or lack of free movement. At times when it was raining she walked briskly. The tasks shown were not inconsistent with the sorts of demands on a sales person in a home-wares shop. She carried out all the tasks depicted without any discernible limitation or symptoms. All movements were completely normal and were both varied and extensive as she assisted her parents.

14 In the third video she was at Kmart. Twice she stood for some minutes in the one spot talking to a friend. There was no apparent discomfort or shift of position. At one point she picked up a child off the ground without any apparent difficulty and that child would have been of a weight well beyond the 5kg and 10kg limits some doctors speak of. The child looked like a toddler of three or four years and was certainly not a baby. There was no sign of any symptoms, disability or discomfort. She then carried on with her shopping immediately after that task including dragging a trolley at one point. This video was inconsistent with her evidence about limited tolerance for standing and lifting.

15 These three videos demonstrated a capacity to perform a number of day to day tasks that were clearly able to be performed with no apparent difficulty. Just to take a teacher’s aide job alone, the tasks shown in the films were such as to demonstrate in my opinion a capacity to sit and assist primary school children as an aide is required to do with the ability to sit, stand, kneel or walk around the classroom as an aide can do at will.

16 Even taking the retail positions she has held with Dusk these are far from all being mainly physical duties . They include a good deal of administrative, clerical and office based tasks in operating the store and the six or so people on staff. The plaintiff is computer literate. While some very heavy tasks might have to be avoided, she as manager could probably direct others to attend to them. She has not proved any permanent incapacity for this sort of retail management work even if full time hours were required.

17 The defendant also tendered no less than forty two pages of photos and comments from the plaintiff’s Facebook account.[10] These showed a clear capacity to enjoy a good deal of travel, recreational outings and general social interaction that is inconsistent with a lot of what she has said in her affidavits and to doctors about the limitations she suffers as a result of her back condition. As to the pain and suffering consequences relied on in this case, on all the evidence it is clear the plaintiff still leads basically the same life she had prior to employment with Dusk in terms of her home, personal, travel and recreational interests.

18 In the end I found the plaintiff as a witness to be unreliable, inconsistent and with a tendency to exaggerate the level of spinal symptoms. These videos demonstrate a person who is free in their movements, able to walk, stand and sit at will without any significant restrictions. There may well be some intermittent spinal pain however it is not constant and importantly it is not limiting in any significant way with respect to a multitude of daily tasks. The videos were consistent with her unrestricted movements and unaltered posture observed over the time in court.

19 The unreliability of the plaintiff and her exaggerated account of symptomology poisons all the medical evidence in this case. In effect doctors have just taken at face value the level of and the continuous nature of symptoms she said she has suffered since 2016. I have found this evidence unreliable and do not accept it Accordingly I do not consider the medical opinions are soundly based dependent though they are on her accuracy to a very large extent.

20 It should be said that differences in what a witness said to a doctor in these cases is often apparent on a range of topics. How long she can sit is but one example. Care should be taken to not treat these differences too literally. But the fact remained she sat in court with no apparent discomfort nor change of posture over three days without ever availing herself of my usual invitation to sit or stand as she chose.[11] She grossly exaggerated her incapacity to sit and exhibit 2 is evidence of that.

21 In a case where the pathology is in no way major or gross the complaint of pain is often central to determining a serious injury application. Even on this topic her evidence was very inconsistent. I will only footnote a few such examples of this.[12]

22 The medical evidence supporting a permanent loss of earning capacity here nearly all relies on incapacity or restrictions regarding a number of physically demanding tasks such as she described in her retail role with Dusk. She may well have an incapacity to do unrestricted shop work by reason of her general degenerative condition but this plaintiff is not a manual worker. Her capacity goes well beyond that. She completed year twelve in this country. Her language and computer skills are good. Her own work record including promotions, her self-employment, the Resume of her attributes and the courses she has undertaken and nearly finished in the teacher’s aide area are testament to that.

23 She must prove permanence in regard to 40% or more loss and at thirty five years of age, still undergoing training, this has not been done. I do not need evidence about what a teacher’s aide does in a primary school. It is essentially self-paced and not heavy. The medical evidence did not adequately deal with alternative suitable employment and prove any permanent incapacity for that.

24 For the reasons I have given regarding non-acceptance of her evidence it is not necessary to go into any detail about the claim for pecuniary loss damages. But the Act demands certain arithmetic be considered regarding the 40% loss figure. No earnings have been provided with respect to her previous self-employment. The without injury figure was said to be $47,502 per annum or $913.5 per week. The 60% figure was agreed at $28,501 per annum or $548 per week.

25 The plaintiff has not proved earning capacity for suitable employment that equates to any permanent 40% or more loss whether that be as a teacher’s aide or in a number of other suitable employments. Even performing in excess of 20 hours per week as a teacher’s aide or in customer service in retail, the plaintiff would earn too much money to be able to point to a permanent 40% or more loss.

26 The medical evidence does not require a great deal of attention in view of my findings with respect to the unreliability of her evidence. I will just make some brief comments. The first local doctor involved was Dr A Al-Sadii and he confirmed her back symptoms and disc degeneration shown on radiology. But his only report in 2017 said very little in assisting an assessment now.[13] He referred her to a consultant physician, Dr V Karlov, in mid-2016 but back then it seems she also underwent physiotherapy treatment with Vicki Kerner.

27 Ms Kerner diagnosed lower back strain aggravated by lifting, pulling and pushing at work. She diagnosed disc and degenerative changes in the spine. They could have occurred through wear and tear but as I read her first report she said the condition “is more related to continuous aggravation due to repetitive physical and demanding duties that she entails at the workplace”.[14]

28 She thought physiotherapy had helped as well as provision of some preventative education to the patient. The physiotherapist thought more sessions were required and a gym program in the future together with self-management were recommended. As to work she did not comment fully but did say there was a need to avoid any heavy lifting and bending.

29 There is a more up to date report in 2018 and that is due to the plaintiff still having some treatment from Ms Kerner. About ten visits took place in 2018 and two in 2019. Ms Kerner reported that back issues would remain but the restrictions described are with respect to physical tasks like vacuuming, mopping and lifting. It is in the context of these heavy physical demands that Ms Kerner seemed to accept the patient would not cope with the role of store supervisor.[15] This report said nothing about capacity for other suitable less manual duties which on the evidence the plaintiff could cope with.

30 The consultant physician referred to, Dr V Karlov , first saw her on 1 June 2016 and in 2017 he said her work capacity limited her to light duties but again this reads in the limited context of avoiding her previous work where there was a lot of pushing, pulling and lifting.[16] He saw her in a medico-legal context in December 2018 and as to work he again only seemed to limit her capacity in the narrow context of her old “former duties as heavy lifting and prolonged standing”.[17] He said nothing about less physical other work that might be suitable.

31 She said Dr Al-Sadii did not treat Workcover people so the plaintiff consulted another general practitioner, Dr Manassa, on one occasion. However she found his manner very intimidating and there is no report from him. Dr R Hamdan then started treating as her local doctor from 21 September 2016.

32 Dr Hamdan reported in January 2019 but this is deceptive as he said he had not seen her since May 2018.[18] He thought back then that she was not fit for pre-injury duties which he had described as “lifting of heavy objects as well as other work related duties.”[19] He also saw a psychological condition that needed treatment. He made no comment about capacity for any alternative employment. He did not give a prognosis. He also really limits incapacity to a heavy manual labour context when her work record and capacity goes far wider than that.

33 A chiropractor, Dr K Rostom, started some treatment also back in 2016. He confirmed disc injury reported as being due to repetitive lifting and bending at work. There were only three chiropractic treatments given and her condition was recorded as showing no appreciable improvement but he could not say if it had reached stabilisation.[20]

34 The medico-legal reports for the plaintiff included Mr M Awad, neurosurgeon and spinal surgeon. He reported that she told him she had a maximum sitting time of 20 to 30 minutes and he diagnosed aggravation of lumbar spondylosis.[21] Regarding work he thought it was going to be difficult for her to work full-time on a reliable and consistent basis and that part-time work was all she could do with preclusions from lifting above 5kg, pushing, pulling, repetitive stooping, bending and twisting. He ended by saying the prognosis was poor and these were permanent restrictions. His opinion was “She is unlikely to be fit for her pre-injury employment in her current state, but is fit for alternate light duties in the form of two to three hours per day for a maximum of two to three days per week.”[22]

35 He was then sent the videos which have been tendered and in a short letter he considered that what they depicted did not cause him to change his opinion. Curiously however he then altered his view somewhat without seeing Ms Diab again. This time he stated that the days she could work up to 3 days per week was “a reasonable starting point and if the patient is able to tolerate this then this can always be increased”.[23] The restrictions she could work within, even if accepted as permanent, would still in my opinion allow her to work full time as a teacher’s aide, in many retail shop positions as well as in internet based home self- employment or essentially managerial office type jobs. I disagree with his comments about the videos. In the end it is what I make of them in this jurisdiction where film is shown of injured workers just about every second day that counts.

36 Dr D Middleton, occupational health and rehabilitation consultant, was the last doctor the plaintiff relied on. He saw the plaintiff on one occasion but also wrote a couple of short letters. His report from November 2018 diagnosed a work-related condition consistent with her history of forceful repetitive and heavy manual handling tasks at task. He considered employment had caused an aggravation and acceleration of her previously asymptomatic, age-related, degenerative disease of the lumbar spine with some instability and discogenic pain.[24]

37 A number of matters caused me to conclude Dr Middleton’s opinion is not soundly based. Pivotal to his conclusions was that he accepted her complaints unreservedly and I am satisfied there has been unreliability and exaggeration about the level of her injury, symptoms and incapacity. Interestingly he placed reliance on her residence in Craigieburn which he said had limited regular public transport and poor road access to business districts. I do not know how often this doctor has been to Craigieburn, but I do not need evidence to tell me that Craigieburn has an electric train service that runs very regularly, excellent access via the Hume Freeway or the old Hume Highway whichever one prefers, as well as a lot of nearby large and small businesses.

38 I reject what he says about the chaotic situation on freeways causing a restriction to her employment prospects.[25] This is the language of an advocate rather than an objective medical examiner. I also do not accept he has an accurate understanding of her employment history and capacity and to say she is “somewhat fluent in both Arabic and English” is an understatement.[26]

39 Nevertheless he still thought she had a capacity to perform sedentary non-manual work but could not perform her pre-injury duties and she needed to be in a self-paced work situation. He did not deal adequately with alternative job options or capacity for other suitable employment.

40 He was sent the videos and did not alter his opinion.[27] Similarly the defendant’s reports from doctors Jones and Boffa did not cause Dr Middleton to alter his views. [28] I have already commented but less there be any doubt, I do not share the same view as this doctor about what the films depicted.

41 By way of summary, this is an aggravation case. Even the plaintiff’s doctors do not adequately explain how or why it is that the aggravation itself is a permanent impairment coming as it does on top of clear pre-existing degenerative changes. The plaintiff must prove the aggravation on its own is a “serious injury”. She has not.

42 The defendant commenced its tender with reports from the orthopaedic surgeon, Mr B Love who in fact the plaintiff’s solicitors had engaged. He reported in 2017 she had incapacity for work but it was in the context of standing, lifting, twisting, turning and carrying objects.[29] He reported again in 2019 and interestingly he repeated the Professor Bittar’s consultation which I have already discussed.[30] Again Mr Love described his previous diagnosis and incapacity.

43 Importantly though he was sent the videos. They significantly changed his views. He said only this week “There are no observed impediments to function on the surveillance footage. From observing the activities contained in that footage the emphasis of my report on reduced work capacity should be modified to state that any restriction of duties will be of the most minor type”.[31]

44 It is un-necessary to elaborate on the opinions of Mr I Jones, Associate Professor Boffa or Associate Professor Buzzard in view of the plaintiff’s case not being proved on the medical evidence she relied on. Suffice to say both Mr Jones and Mr Buzzard saw an aggravation from work that caused symptoms but that aggravation had ceased to do so. I accept their views and their reports speak for themselves.

45 Associate Professor Boffa also commented on the videos and this resulted in a change of opinion. He said only two weeks ago “Based on the extensive footage on different days demonstrating apparently unrestricted functional tolerances and obvious endurance, I now consider the worker has no significant physical restriction on the number of hours per week she can work”.[32]

46 I agree with the opinions of the doctors the defendant tendered which amount to the application for “serious injury” not being made out.

County Court of Victoria

Diab v VWA [2019] VCC 119 (15 February 2019)