IN THE MAGISTRATES COURT OF VICTORIA
AT MELBOURNE / (Not) Restricted

Case No. A12633947

ARUNA PRASAD / Plaintiff
v
PRINCES LAUNDRY SERVICES PTY LTD / Defendant

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MAGISTRATE: / B WRIGHT
WHERE HELD: / MELBOURNE
DATE OF HEARING:
DATE OF DECISION / 16 DECEMBER 2011
CASE MAY BE CITED AS: / Prasad v Princes Laundry
MEDIUM NEUTRAL CITATION:

D E C I S I O N

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Catchwords:

Workers Compensation – Rejection of Claim for Weekly Payments and Medical Expenses – Questions of Fact as to Injury and Incapacity – Surveillance Material – Accident Compensation Act ss 82, 93 and 99

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APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr A Saunders / Maurice Blackburn
For the Defendant / Mr C Hangay / Thomsons Lawyers
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HIS HONOUR:

1 Mrs Prasad is a 58 year old former laundry hand employed by the defendant since 2001. She alleges she suffered injury to the back with referred pain to the left leg and consequential psychiatric reaction throughout the course of her employment, and in particular on her last day of work on 9 April 2009 (Easter Thursday). Her claim, including an associated s.98C claim, has been denied.

2The defendant denies any injury and incapacity and raises defences as to the late notices of injury and claim pursuant to ss.102 and 103 of the Act.

3The question of any present incapacity for work as a result of any work-related injury is important in that her period of claimed incapacity for work has now just exceeded 130 weeks by about a month. Importantly she underwent a microdiscectomy at the L4/5 level performed by Mr Craig Timms, a neurosurgeon, on 15 September 2009 as a public patient at Southern Health.

4Viva voce evidence was called from the plaintiff, her husband, Mr Jean- Pierre a former supervisor for the defendant and her former GP, Dr Lim. Mr Jean-Pierre now works for another employer.

5Her duties involved working in the “Green Room” which involved the folding and packing of various types of hospital gowns, linen, towels, drapes, etc. after they had been washed and dried. It was necessary to transfer the linen about 15 metres or so into the Green Room in a large metal frame trolley with a cloth insert. The trolley would be pushed by one or two staff over a concrete floor which had a couple of expansion gaps in it. Mrs Prasad complained that the wheels would stick in the gaps, as to which Mr Jean-Pierre disagreed. However he did agree that the trolleys could be very heavy to push.

6Basically, the plaintiff had to fold various linens and other items such as small hand towels and large drapes and hospital linen and place them into bundles. She said that these could weigh up to seven kilos. She haddifficulty in estimating the weight. However, Mr Jean-Pierre stated that the bundles could weigh up to ten to 12 kilos and even over 15 kilos at times.

7She said that then she had to put the bundles into another trolley and move it about seven to ten metres to another area. Mr Jean-Pierre stated that this involved bending down to put the bundles initially into the trolley at about 50 centimetres from the floor and then up to about three-quarters full. The trolley would be heavy and could require one to two people to push it. The trolley would come up to about face height on her or about chest height on him.

8She worked full time, generally on morning shift. There was rotation every two hours, although this appeared limited to a change in the items being folded. The items would be folded by one or two people, depending on the size of the items. A bench was used if necessary.

9She said she had incidents of back pain in July 2006 and May 2008, which she associated with work, especially the pushing of trolleys. Later, she lodged a report of injury in January 2009 involving "shoulder and back" which was stated to be due to "pulling a heavy trolley". On that occasion she said that Mr Jean-Pierre discouraged her from making a worker's compensation claim and said "the door is there" if she did. Mr Jean-Pierre said he did not remember discussing a worker's compensation claim form with her in January 2009. He said it would be unethical to discourage anybody from making a worker's compensation claim.

10Prior to 9 April 2009, she had seen her GP on a few occasions for back pain particularly in July 2006 and May 2008, but did not specifically relate this to work, according to Dr Lim's medical report. She had a lumbar spinal X-ray in about mid 2006 and a CT scan in June 2008. The latter showed a large focal disc protrusion at L4/L5 causing central spinal bilateral exit foraminal stenosis.

11On Thursday 9 April, which was the day before the Easter break, she said she was pushing a heavy trolley at about 10 a.m. and felt a pain on the left side of the lower back, which went into her left leg. She kept working despite the pain and continued to do her normal duties. She did not report the injury or even complain to her workmates.

12She went home at the normal end of her shift. She said the pain was much worse overnight. She could not go to a doctor until the TuesdayafterEaster (14 April). She rang Mr Jean-Pierre on that date and said she was not well. He told her to go to a doctor.

13In examination-in-chief, she said that she did not remember telling him anything else, but in cross-examination she said that she had told him she had hurt her back pushing a trolley. Mr Jean-Pierre simply said she asked for time off work and he agreed. When she saw her usual GP on 14 April he gave evidence (which I accept) she told him she had hurt her back pushing a trolley with the "onset last Thursday night".

14He had in fact seen her in the past for those back problems, some of which I have already detailed, and stated she had given a past history of "lifting all the time" on several of those occasions. She has not worked since 9 April 2009. She had a further CT scan on 17 April 2009.

15Her back pain deteriorated on about 24 April 2009 and she was taken by an ambulance to Southern Health. While there she complained of back pain after work on the Thursday and also reported her job as involving pushing heavy trolleys. She was given an epidural and referred to Daniel Lewis (rheumatologist), and Mr Craig Timms in the Outpatients Clinic for follow up and had a MRI on 15 June.

16Eventually, as I stated, she underwent a microdiscectomy at the L4/5 level on 15 September 2009.

17It was only after that procedure that she lodged a worker's compensation claim form on 1 October 2009. In that claim form she did not specify a date of injury but said that she stopped work on 9 April 2009 and reported it on 14 April 2009. She attributed the injury in the claim form to "pushing and pulling clothes trolley". The claim form was filled in by her cousin but was signed by her.

18Mrs Prasad said that she confused this injury with the earlier injury in about January 2009 in referring to the two witnesses in the later claim form. The alleged statement by her supervisor as to “no worker's compensation”in the later claim form again is a confusion of the alleged conversations she had with Mr Jean-Pierre at the earlier time. She said that she did not submit the claim form earlier because of her supervisor's previous comments and she was concerned about her job. It was only after surgery that she decided she would have to put in a claim form.

19Mrs Prasad admitted to very little, if any, improvement since the injury. She conceded that the surgery had helped the leg pain “a little”. She says she continues to suffer from constant severe back pain and pain to the whole left leg including the toes. She is unable to bend, lift or twist. She has very limited ability to walk, sit or stand for long.

20Dr Lim has always had, and continues to have, doubts as to the work relationship to the L4/5 disc prolapse. She changed her GP in February 2010 from Dr Lim as she said that he “did not do worker's compensation cases”. However Dr Lim did not agree with that and appeared to see the change as more reflective of her belief as to his medical care which he said was appropriate. He thought that she had a L4/5 disc prolapse with sciatica and consequential chronic pain syndrome and major depression.

21She then went to a Dr Davies who, according to a tendered report,said the plaintiff’s reason for changing her GP was dissatisfaction with investigations and his diagnosis of the back condition not relating towork.

22In the report dated 15 February 2011. Dr Davies summarises 12 months of treatment on Mrs Prasad. She said Mrs Prasad had worsening symptoms and referred her back to Mr Timms. As at the date of the report, she had not heard from him. She said that Mrs Prasad reported significant back pain with marked stiffness and pain from standing or sitting for any significant length of time. Apparently, Dr Davies has now returned to live overseas and she is now being treated by a Dr Fountain at the same clinic.

23I had no more recent report, clinical records or viva voce evidence from that GP or indeed from any of treating doctors after Dr Davies' report of 15 February 2011. Brief reports from Dr Lewis and Mr Timms included in the hospital records (dated 2009) were tendered in evidence.

24In her own evidence Mrs Prasad said that she had seen Mr Timms recently and that she "may" need a further operation. She is due to see him again in February 2012. She gave no evidence as to any further radiological tests since the operation. Similarly, no such later radiological reports have been produced to any of the medico-legal doctors who examined her, most recently Mr Michael Dooley in August 2011. Pre-surgery radiological reports have been taken by her to those medical examinations.

25Mrs Prasad firmly denies that she can do any work whatsoever as a result of her pain and limitations that I've expressed above. I will now deal with the injury work relationship issue.

26I am satisfied that Mrs Prasad suffered an injury to her lower back throughout the course of her employment as a result of the lifting of heavy laundry linen and other items and bending to place those items into a trolley. Further, the pushing of heavy trolleys throughout thecourse of employment, especially on9 April 2009, was also a significant contributing factor to her work-related injury. Her injury is best described as an” injury to the lower back involving the aggravation and acceleration of degenerative changes especially at the L4/5 level with left leg sciatica”. She has also sustained a consequential mild adjustment disorder according to the tendered psychiatric reports.

27I find that her employment was a significant contributing factor to the pre-existing degenerative changes being aggravated and accelerated to the lower back. Such work-related injury led to the microdiscectomy at L4/5 undertaken on 15 September 2009. She did the same job for some eight years with job rotation limited to different items of laundry being folded.

28I accept Mrs Prasad's evidence, which was reinforced and even expanded upon by her former supervisor, that the job involved heavy and repetitive lifting and bending and pushing of heavy trolleys. Further, I accept that she had a specific back pain at work on 9 April 2009 which became worse overnight and eventually led to her admission to hospital on about 24 April. I find that her complaints of back pain to her GP before April 2009 were also symptomatic of her back injury throughout the course of the employment.

29Despite her former GP's dissension about the work relationship between the pushing of trolleys and her prolapse, those thoughts were not shared by the other treating and medico legal surgeons in this matter, at least initially. Dr Daniel Lewis and Dr Davidson had some reservations aboutthe work relationship althoughDr Lewis took a limited work history in seeing her as a public patient at Southern Health. Dr Davidson also pointed out the difficulty of obtaining a precise history of the mechanism of injury.

30Mr Klug and Mr Dooley accepted a work relationship between her described injury and pushing a trolley. However, Mr Klug did alter his opinion after receiving earlier material from Dr Lim. Even then he was prepared to accept some employment aggravation led to worsening of symptoms and leading to consequential surgery.

31I emphasise that none of the doctors appeared to have had the more detailed and compelling history of work contribution from her former supervisor that I had in evidence before me.

32It is now necessary to consider the ss.102 and 103 issues raised by the defendant, but not specifically addressed before me.

33On the evidence I am unable to say whether in fact she reported any injury to the back on 14 April to Mr Jean-Pierre. Certainly, she was unable to say so initially in her examination-in-chief, though she was definite in that regard in cross-examination.

34However,even if there was no such immediate notice pursuant to s.102(6)(c) I am unable to see any serious injustice to the defendant by any notice of injury being given after the 30 day period. The injury happened the day before the Easter break. Anyway, the defendant did not assert any prejudice in the circumstances.

35However, as to s.103(7) I accept Mrs Prasad's evidence that she had been discouraged by Mr Jean-Pierre in making a previous claim in January of 2009 by referring her to “where the door is”. Certainly, Mr Jean-Pierre did not remember the conversation but was very unconvincing when the specific conversation was put to him.

36Although he said it would be unethical to refuse to accept a claim, this is not what Mrs Prasad was seeking to do in January 2009. Mrs Prasad was understandably concerned about making a claim in April 2009 in the circumstances and did not do so until after her surgery. I find that there is a “special excuse” in this case, pursuant to s.103(8).

37As stated, the defendant made no submissions as to the ss 102 and 103 issue other than leaving it for me to consider.

38However, the finding of a work-related injury does not automatically give rise to an entitlement to weekly payments. The question of incapacity, its extent and duration needs to be considered as well. As I have pointed out, I had some reservations as to Mrs Prasad's evidence as to the work-related injury issue. Despite this, her evidence as to the heavy and repetitive nature of the work was corroborated and even expanded upon by her former supervisor, Mr Jean-Pierre.

39I have already referred to the lack of radiological and other evidence from the treating doctors detailing treatment since February 2011. Mrs Prasad was similarly very vague and general in her evidence in that regard as well.

40It would appear that there has been no further radiological investigation after her surgery in 2009, which would be very surprising if her evidence as to severe unremitting pain and marked disability and limitation was accepted by her doctors in the interim.

41I have already outlined Dr Davies' report as to her presentation in the report of 22 February 2011. Generally, she gives a similar history of back pain and limitation to a severe degree to all medico legal doctors whose reports have been tendered in evidence. Again, on examination by the various medico legal surgeons and physicians, she has a similar reported extreme lack of spinal movement, a severe weakness and a tendency to a global lack of sensation at the whole of the left leg. However, muscle tone and reflexes appear to be normal, which is unusual having regard to her complaints.

42A number of the doctors refer to chronic pain syndrome and psychological factors playing a part in her symptomology. A repeat MRI is suggested to try to establish the cause of her continuing disability or rather to exclude a recurrent disc prolapse or other contrary physical cause for her stated severe symptomology and apparent disability.

43She has also been examined by two psychiatrists, one for either side. They both agree that she has an adjustment disorder with mixed anxiety and depression. They both say that this is consequential upon her back injury and does not lead to any incapacity for work, looking at the psychiatric disorder alone.

44Thus, given the lack of true objective signs as to pain and disability, Mrs Prasad's credit is very much in issue, especially in view of her statement that she is unable to perform any work at all. She frankly admits to not looking for any work at all since the surgery or indeed since ceasing work.

45The defendant points to her receipt of weekly payments pursuant to a private sickness and accident policy and her husband's health issues in that he has had a recent quadruple by-pass. It submits that she has a consequential lack of motivation to obtain work.

46She gave evidence of severe restriction in her day to day activities consequential upon her back and left leg injury. For example, she says she does not do any cooking at all, apart from lifting a kettle. Her own husband who said that she chopped onions and other vegetables preparing for a curry contradicted this. It also contradicted the history given to some doctors of only doing light cooking as well.