Bendigo, July 22: Stalli singh of Bendigo has successfully obtained leave from the County Court of Victoria to file a claim for pain and suffering and economic loss. The judge decided that Stalli had his work capacity has been reduced by more than 40 per cent.
“I am of the view that Mr Singh does have some work capacity, taking account of purely his physical symptoms, but that that capacity is minimal, given the nature of the injury he has suffered, the restrictions that injury imposes and his work and education background. I am of the view that as a result of the physical injury, his work capacity has been reduced by more than 40 per cent”, Judge O’Neill said deciding the application in favour of Stalli.
“In those circumstances, his application, both in relation to pain and suffering and economic loss, succeeds”, the Judge added.
Stalli was working for Earthtrack Solutions Pty Ltd (“Earthtrack”) when on 23 April 2013, he suffered an injury to his lower spine while at work. He was attempting to stop the movement of a large piece of machinery when he felt pain in his lower back. Stalli has not been able to return to work since that day, the court was told.
He has been treated by a range of practitioners, including his general practitioner, pain management and rehabilitation specialists. The treatment has been largely conservative. He has had two steroid injections into his lower spine. He regularly takes pain-relieving medication. He has had physiotherapy. Having been treated for depression in the past for problems in his relationships, Stalli told the court he developed depression again after the back injury which has required medication and sessions with a psychologist.
In court, Stalli claimed that as a result of the injury suffered at work on 23 April 2013, he suffers constant pain in his lower spine, with referred pain to the legs, exacerbated from time to time depending upon the activities in which he is engaged. He claimed that a range of normal domestic, recreational and social activities and interests are beyond him and he has little if any capacity for work. He has tried retraining through an Occupational Health & Safety Certificate Course at Bendigo TAFE, but was unable to complete it because of difficulties with sitting, computer use and concentration related to the medication he takes.
For his claims, Stalli based his case on the body function said to be lost or impaired as being the lower spine. Medical tests including MRI imaging show a moderate disc bulge at L4-5 with contact of the L5 nerve root. Stalli has lost four years and is now 43, having suffered the injury when he was 39.
As the law stands: If the Worker establishes his or entitlement based on the Serious Injury narrative test, he or she can bring proceedings to recover general damages. However, the Worker must also show the injury is productive of a 40% loss of earning capacity if he or she wishes to bring a claim for pecuniary loss damages, including loss of earning capacity and loss of superannuation benefits.
Stalli said as a result of the injury to his lower backm, his work capacity had been significantly, greater than 40 per cent, reduced and he decided to seek leave to file a case to make a claim for both pain and suffering and loss of earning capacity.
Lawyers for the WorkCover Authority opposed his application. They had done a video surveillance on him for more than a year spanning from May 2015 to November 2016. The video showed Stalli doing various things – and for very small and shorter intervals – sometimes things he claimed he could not do properly. The lawyers thus rejected Stalli’s claim of his work capacity having been reduced by more than 40 per cent along with Stalli failing the “very considerable” test.
Of particular interest to WorkCover were the following bits in the surveillance video:
On several occasions, Mr Singh was seen refilling his vehicle at a service station, bending low to undo and do up the gas nozzle. On one occasion, he knelt on the ground. He also bent forward for a time.
Over several days in July 2016, he walked in a relatively free manner for a considerable period which he later thought was two to three kilometres.
Presenting that the defence said Stalli Singh had exaggerated his injury and this affected his credit. In other words, he was not being truthful.
The judge disagreed and said, “I did not view his capacity to walk longer distances on a regular basis as significantly affecting his credit. I accept that on some days, he was able to walk more freely than on others. Perhaps he was more restricted earlier in the mornings than in the afternoons.”
To further discredit Stalli, WorkCover lawyers suggested “(Stalli) he purposefully walked in a slow manner, limping as he went, while approaching a medical examination.”
“I was unable to detect that from the video surveillance”, the judge said rejecting that claim of the opposition.
It was further suggested that Stalli’s injury was exacerbated by his severe depressive condition. Their medical expert Dr Michael Bloom, said Stalli’s level of pain and disability could not be explained on physical grounds. To completely discredit Stalli’s case the doctor said Stalli’s perception of pain and disability was disproportionate to his injury.
Stalli admitted that he had become significantly depressed because of his ongoing back pain and disability. He has contemplated suicide. But that did not mean he did not have severe lower back pain as a result of physically-based injury at the L4-5 disc and with some compression of the exiting L5 nerve. All his doctors – while recording Stalli’s sever depressive illness, also recorded him as suffering chronic low-back pain caused by an aggravation of underlying disc degenerative disease at L4 5 and, according to some practitioners, nerve root compression causing symptoms down his legs.
The judge accepting Stalli’s experts’ opinion said, “I accept Dr Bloom’s report is extensive, current and that he has been provided with a raft of relevant reports and information. However, he is the only practitioner who comes to the conclusion Mr Singh’s presentation is largely psychologically based. I prefer the opinion of, in particular, the treating practitioners, that he has only a modest work capacity, and then with significant restrictions.
I am of the view that Mr Singh does have some work capacity, taking account of purely his physical symptoms, but that that capacity is minimal, given the nature of the injury he has suffered, the restrictions that injury imposes and his work and education background. I am of the view that as a result of the physical injury, his work capacity has been reduced by more than 40 per cent.”
Stalli Singh had his day in court and got leave to file his claim for pain and suffering and economic loss – having had his work capacity reduced by more than 40 per cent as a result of work injury on 23 April 2013. – DM