Abram v Melbourne Health and VWA
[2009] VCC 19
•30 Jan 2009
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| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-03253
| JELA MARIA ABRAM | Plaintiff |
| v | |
| MELBOURNE HEALTH | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2008 |
| DATE OF JUDGMENT: | 30 Jan 2009 |
| CASE MAY BE CITED AS: | Abram v Melbourne Health & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0019 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – loss of earning
capacity
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC | Ellis Palmos & Co |
| Mr D Gibson | ||
| For the Defendants | Mr B Anderson | Hall & Wilcox |
| HER HONOUR: |
The Application for Serious Injury Certificate
1 Between 21 July 1997 and 4 July 2008 the plaintiff, a registered nurse (and from January 2001 a clinical nurse specialist), was employed by the first defendant at the Royal Melbourne Hospital.
2 On 26 March 2003 the plaintiff suffered injury to her spine in the course of her employment. Pursuant to sub-s.134AB(16) of the Accident Compensation Act 1985 (“the Act”) the plaintiff seeks leave to bring proceedings under paragraph (a) of the definition of “serious injury” for the recovery of both pain and suffering and pecuniary loss damages in respect to permanent serious impairment of her lumbar spine.
3 As to the nature of the injury suffered, based on the medical evidence, this was described by senior counsel (a description generally accepted by the defendants) as an injury that either caused or aggravated an L5/S1 abnormality and aggravated disc and facet joint degeneration at the L2/3, L3/4, L4/5 and L5/S1 levels.
4 This application was heard on the basis that prior to commencing the hearing the defendants had conceded a serious injury with respect to pain and suffering and that the only issue for determination was whether the plaintiff could satisfy the test for serious injury in relation to any loss of earning capacity. The number of hours per week the plaintiff is capable of working in employment for which she is currently suited was said to be central to the resolution of this issue.
The Evidence Called and Tendered
5 The plaintiff deposed to the accuracy of her affidavits sworn on 10 April 2007 and 1 August 2008 and she was cross-examined.
6 Additional material tendered by the plaintiff consisted of her Court Book, comprising the Court Book documents (other than Court documents), a loss of earning capacity document and from the Defendants’ Court Book:
• two reports of orthopaedic surgeon, Mr Simm, dated 3 July 2008 and 19 July 2007; • five reports from general surgeon, Mr Marshall, dated 19 June, 27 August and 27 November 2003 and 10 February and 17 March 2004; • a report from orthopaedic surgeon, Mr Moran, dated 20 January 2005; • page 3 of the index to the Defendants’ Court Book confirming, as it does, that the surveillance film obtained by the defendants was not relied on, a circumstance from which I infer that if shown the film would not have advanced the defendants’ case; • an affidavit sworn on 1 August 2008 by the first defendant’s manager, Occupational Health and Safety Services, Gary Robertson, in which he deposed to various matters relating to the positions held, the hours worked and the income received by the plaintiff during the course of her employment with the first defendant.
7 The defendants called no evidence. However, from the Defendants’ Court Book they tendered two reports of Dr Clarke, dated 2 July 2008 and 6 June 2008, a Vocational Assessment report by Nabenet dated 10 June 2008 and Vocational Assessment report by Industrial Work Conditioning Clinic, and also noted their reliance on the two reports of Mr Simm.
8 The plaintiff is a young woman with a chronic back condition and allowing for all of the evidence I formed the view that she was a straightforward and credible witness who had made a substantial effort to return to the workforce and to exercise her physical earning capacity within the limits of her disability. Indeed, to her credit the plaintiff appears to have taken significant steps to ensure that she maintained a position in the workforce and if her evidence is accepted, as I think it should be, until the recent termination of her employment each week she worked with some difficulty for 18 hours per week in alternative light duties on non-consecutive days.
The Plaintiff’s Background
9 The plaintiff is 34 years of age, having been born in Australia on 6 September 1974. She is married and was some ten weeks pregnant with the first of her two children (now aged four and two respectively) when she suffered her work-related back injury.
10 Whilst these were not matters on which she elaborated in her affidavits, it is evident from the plaintiff’s responses in cross-examination, and the vocational assessment submitted by psychologist, Ms Chua, from Nabenet, dated 10 June 2008 (tendered by the defendants), that initially the plaintiff completed a Bachelor of Health Science (Nursing) at Victoria University. She has been registered as a Division 1 Nurse since 1995 and between 21 July 1997 and January 2001, when she became a Clinical Nurse Specialist (“CNS”), this was the level at which the plaintiff worked with the first defendant at the Royal Melbourne Hospital. However, from January 2001 the plaintiff worked full-time as a CNS until she suffered her lower back injury.
11 Allowing for her responses in cross-examination the duties of a CNS involved supervision, research, training and presentation for student nurses, although in the plaintiff’s case she said that she never presented a training program but did engage in on-the-job teaching and supervision of graduate nurses.
The Circumstances of Injury
12 These and the immediate aftermath of injury are described by the plaintiff in paragraphs 2(a), (b), (c) and (d) of her first affidavit as follows:
“(a) At about 3 p.m. on 26 March 2003, some other nurses and myself were required to transfer a patient from his bed in ward 9 west to a trolley, so that he could be taken to the x-ray department. The man was a tall and heavy patient. He had had a spinal operation on the previous day. Another nurse, Jo Dragojlevic, and myself, were on one side of the bed, whilst Tom McDermott (the nurse in charge) and another nurse, Viv Kiddie, were on the other side of the bed. Jo and I were required to bend right over the patient and reach with out arms outstretched in order to put our hands under the far side of the patient from us, and then pull and roll the patient towards us, so that the nurses on the other side could put a slide sheet under the patient for the purposes of sliding him onto the trolley. We were not permitted to use a lifting machine because the patient had only just had a spinal operation; however, this was a very strenuous task for Jo and myself. In the course of pulling, lifting and rolling the patient towards us, I felt a sharp twinge in my lower back. I told Tom, the nurse in charge, that I felt a twinge in my lower back whilst doing this. I thought I would be OK at that time.
(b)
I continued to work, but the pain in my lower back gradually got worse. After having my 5 p.m. tea break, I tried to get up from my chair, but had considerable difficulty because of severe pain in the lower back and radiating into my left buttock. I managed to struggle on and complete my shift.
(c)
On the next morning, when I tried to get out of bed, I again had severe pain in the lower back. I telephoned my supervisor, Meinir Griffiths, and advised her that I had hurt my back at work and that I was in a lot of pain and would attend upon my GP, which I did. I saw Dr J. Singh at the Campbellfield Medical Centre. He advised me to rest and gave me a medical certificate to have the Thursday (27 March 2003) and Friday (28 March 2003) off. He gave me an ordinary medical certificate; I did not seek a Workcover certificate. I hoped that the pain would pass within a few days and that I would be able to return back to work without making a Workcover claim. However, I continued to suffer severe pain in the lower back and so attended upon the Campbellfield Medical Centre again on 1 April 2003, at which time I saw Dr N. Singh. He referred me to a physiotherapist, Ian Christian, in Coburg and prescribed Panadeine Forte. I was unable to have any anti- inflammatory medication, or have any x-rays as I was about 2 months pregnant at the time. He also advised me to rest and provided me with an ordinary certificate for a further few days. I continued to hope that a few sessions of physiotherapy would resolve the matter. I had physiotherapy 3 times a week, for which I paid myself, but it only provided me with temporary relief.
(d)
When my condition was not improving, on 8 April 2003, I saw Dr Singh again. This time he provided me with a Workcover certificate and advised me to continue with the physiotherapy and Panadeine Forte for pain relief. On this day, I went to work and saw Meinir and completed a Workcover claim form, as well as a staff incident report. My claim was accepted and I have received Workcover benefits…”
The Treatment Received
13 Reports and letters provided by general practitioner, Dr N. Singh, between April 2005 and August 2008, confirm that, pending the birth of her first son on 21 October 2003, treatment of the plaintiff’s lower back injury was restricted to physiotherapy as well as a referral to Consultant Physician in Pain Medicine and Rehabilitation, Dr Kinloch, who diagnosed a mechanical problem at the L5/S1 intervertebral joint, for the treatment of which he recommended specialist spinal physiotherapy.
14 When, after the birth of her son, the plaintiff’s lower back condition failed to settle, on 14 November 2003 the first of a number of radiological investigations was performed, indicating as it did disc abnormality and degenerative changes at different levels of the plaintiff’s lumbar sacral spine. Relevantly, the CAT scan result reported:
“No significant abnormality at the L1-2 disc. There is a slight annular bulge at L2-3 without significant stenosis. L3-4 is similarly affected with slight bilateral foraminal stenosis. At L4-5 the disc bulges slightly and again shows minor foraminal stenosis. At the L5/S1 level there is rather marked disc prolapse a little to the right of centre with some bone involvement and coupled with hypertrophy of the ligamentum flavum causes some spinal stenosis. Osteoarthritic changes are noted at the L2-3, L3-4, L4-5 and L5/S1 facet joints.”
15 Prompted by this result the general practitioner, Dr Singh, referred the plaintiff to orthopaedic surgeon, Mr Johnson, who examined her in February 2004, and arranged for further radiological, including MRI, investigation. Relevantly, the report of the MRI investigation on 6 February 2004 noted:
“… MRI LUMBAR SPINE
…
ReportA non expanded conus terminates at T12/L1. The lateral lumbar vertebral alignment is normal. Changes consistent with disc degeneration noted at T10/11, T11/12 and L5/S1.
L1/2, L2/3, L3/4 and L4/5 discs
There is no significant prolapse. Central canal and exits are adequate. There is no sign of neural impingement.
L5/S1
but lying clear of the nerve root. The exits are clear.
There is a small postero-central disc protrusion indenting the theca lesion or pars defect. Para-spinal soft tissues normal. Upper sacral central canal clear. CONCLUSION There is a small postero-central disc protrusion at L5/S1.”
16 As his only report, dated 21 June 2005, reveals, despite the evidence of lumbo sacral disc abnormality, Mr Johnson nevertheless felt that there remained “a degree of diagnostic uncertainty, and for this reason, surgical intervention had a degree of unreliability”. In other words, in this case this treating surgeon could not rule out the normal aging process as a cause of the abnormality demonstrated at the L5/S1 level, and as a result he recommended ongoing conservative treatment and arranged for the plaintiff to be reviewed by consultant in rehabilitation and pain medicine, Dr Clayton Thomas, to whom the plaintiff had already been referred by her general practitioner in January 2004.
17 In his only report, dated 21 July 2005, amongst other things Dr Thomas also expressed uncertainty about the anatomical cause of the plaintiff’s lumbar pain, favouring, it seems, facetogenic pain as a probable cause, even though facet joint injections he administered in May 2004 had not led to long-term improvement.
18 In any event, on Dr Thomas’s recommendation, between 4 October 2004 and 3 November 2004 the plaintiff participated in a rehabilitation course at the Dorset Rehabilitation Centre which, according to the plaintiff, had not provided any significant benefit in terms of pain relief, although it had helped her “cope better” with her pain and the restrictions imposed by her injury.
19 Having completed the rehabilitation course the plaintiff was next seen, in May 2005, by a musculoskeletal specialist at the Metropolitan Spinal Clinic, Dr Vivian, the apparent purpose of the referral from Dr Thomas being to explore possible denervation of her lumbar spine.
20 As Dr Vivian’s only report, dated 26 October 2006, reveals, in August 2005 the plaintiff also underwent sacroiliac joint injection, the result of which was negative. Therefore, based on the results of the procedures to which the plaintiff had already submitted, both facet joint and sacroiliac joint pain had been excluded as potential causes of the plaintiff’s lower back pain and in Dr Vivian’s opinion, subject to provocative discography confirming this, it remained possible that an injured intervertebral disc was the source of the plaintiff’s debilitating pain.
21 As she explained in her first affidavit, from 7 February 2005 the plaintiff returned to part-time administrative work for three hours per day, two days per week, which before June 2006 was gradually increased to six hours per day, three days per week, when in association with her second pregnancy the plaintiff ceased work because in her words “increased weight, due to the
pregnancy, caused my back pain to increase, and I was unable to take Voltaren in order to get some relief. If I had not had a back injury, I would have worked until about 1 July 2006 and then taken maternity leave.”
22 After the birth of her second son the plaintiff remained on maternity leave until 27 July 2007 when she again returned to part-time employment at the Royal Melbourne Hospital. In her second affidavit the plaintiff described her return to work (and to the extent that it summarises her duties, these matters are also reflected in the letter dated 23 July 2007 from the first defendant’s Human Resources Manager) as follows:
“3. Termination of my Employment
(a) … Shortly before returning to work, from maternity leave, I had a meeting with Maree Feery, a Human Resources Manager at the hospital. Maree indicated that I could return to an administrative/non-clinical job, assisting Ruth Harper, the Coordinator of the Safety and Service Improvement (SSI) section of the Department, on a short term basis, in order to help Ruth with the preparation of the hospital Accreditation. I did this work on a part time basis, 6 hours on Mondays, Wednesdays and Fridays, for a total of 18 hours per week. Maree sent me a letter dated 23 July 2007, confirming these employment arrangements. (b) As referred to in paragraph 3(k) of my previous affidavit, I found the driving to and from work difficult: accordingly, in order to manage the problems I was having with travelling better; the children and I went and stayed with my mother in Campbellfield on most nights before each day, upon which I worked; although Campbellfield is also some distance from the hospital, it is a lot closer than Craigieburn. My mother was also then able to look after the children in the morning, so that I only needed to get myself ready in the morning, in order to go to work. My husband and I would then both go to my mother’s place after work and have dinner there, before returning home. Again, this helped to relieve pressure on me. At work, I was able to cope with it, because I was able to sit or stand as I required, and I was able to take breaks, during which I could walk about.
23 As to her current physical condition and treatment the plaintiff said, at paragraph 2(d):
“I continue to see Dr Singh, my GP regularly. He supervises my overall condition and prescribes my medications. I continue to take Voltaren tablets at times of severe episodes of pain; this usually results in me taking Voltaren every day for about one week until the more severe episode subsides and then not taking any for a week or so. I try to avoid taking them, as I am concerned about what effect they could have on my stomach. I take a lot of Panadeine for pain relief; usually 4 each day, and sometimes more. I frequently have a hot spa bath with salts in order to relieve back pain. About 2 or 3 times per week I place a hot water bottle behind my back whilst sitting, and sometimes whilst in the car as well and at times under my back whilst I am in bed.”
24 In his most recent report, dated 25 August 2008, Dr Singh described the plaintiff’s condition as follows:
“In summary, Mrs Abram continues to experience constant lower back pain and stiffness as a result of a L5-S1 disc bulge + L5-S1 facet joint inflammation resulting in spinal canal stenosis and sacro-iliac joint pain. Her pain is having a significant effect on her physical and psychological wellbeing. She has been provided WorkCover certificates for part time duties of 6 hours/day for 3 days/week, with the restrictions of no lifting >5kg, no repetitive lifting, bending or twisting, and she was to be able to alternate her posture as required and to be given a 15 minute break every 90 minutes. She was just coping with these restrictions and I feel this is the maximum amount that could reasonably perform given her condition. Her injuries are as a direct result of the work related incident on 26 March 2003 when she was log rolling a patient in her duty as a nurse.
The Medico-Legal Opinion as to the Injury Suffered on 26 March 2003
25 Having assessed the plaintiff in December 2007 and again in July 2008, between 9 December 2007 and 22 August 2008 Occupational Health and Rehabilitation Specialist, Dr Castle, provided three reports to the plaintiff’s solicitors.
26 Allowing for the fact that Dr Castle thought that both the radiological material sighted by him (which included further CT scans of the plaintiff’s lumbar sacral spine on 30 August 2004 and 2 August 2005) and his clinical findings (that is the plaintiff “was tender on the L5/S1 intervertebral segments”) pointed to “an L5/S1 disc prolapse”, I expect Dr Castle probably intended to refer to a damaged disc at the L5/S1 level when he diagnosed “an L4/5 intervertebral disc lesion”.
27 Orthopaedic surgeon, Mr Kudelka, provided the plaintiff’s solicitors with two reports on 30 June and 11 August 2008, having examined the plaintiff on 26 June 2008. He too focussed on the “damaged L5/S1 disc” and said “this
patient’s diagnosis is back pain and left leg pain due to an injury to the lower
lumbar discs at work, particularly L5/S1” which “was caused by the
mechanical strain at work 26.3.2003”.28 Between June 2003 and July 2008 the defendants obtained medico-legal reports from four specialists. The first was from general surgeon, Mr Marshall, who examined the plaintiff on multiple occasions between June 2003 and February 2004. Initially, in the absence of radiological evidence, Mr Marshall, who felt that the plaintiff’s symptoms were “completely genuine” speculated that the plaintiff had “a soft tissue injury of the lumbosacral region, which may
or may not be a disc injury, but certainly there is no evidence to suggest any
protrusion of the disc and she has no symptoms or signs of sciatica”.29 Nevertheless, having seen the results of the CT scan performed in November 2003, Mr Marshall’s attention was drawn to “some bulging discs” and “a rather marked prolapse at L5/S1”, findings he thought were “completely consistent with the views expressed” in his earlier report. However, without any further explanation Mr Marshall also said, “I reaffirm the judgements made in my earlier report”. In these circumstances, Mr Marshall’s reports are not particularly helpful in determining the precise nature of any compensable injury suffered as a result of the incident on 26 March 2003.
30 Orthopaedic surgeon, Mr Moran, examined the plaintiff once on 20 January 2005 at which time, having also viewed the CT and MRI scan results, he opined:
“Mrs Abram sustained an L5-S1 disc prolapse and aggravated multi-level facet joint degeneration in an episode 26.3.03. Employment was a “significant contributing factor” to the injury. The injury has resulted in an incapacity for employment. Mrs Abram is not fit to undertake unrestricted duties as a Division 1 Registered Nurse. Mrs Abram is fit only for light duty employment – work not involving repeated bending and/or heavy lifting – and work in which she has the flexibility to sit or stand as pain dictates. As Mrs Abram has been off work for nearly two years she should initially commence light duty work on a part time basis before graduating to full time light duty work. Mrs Abram is not unfit for all work. Medical treatment is appropriate. After weekly physiotherapy for about a further four week period Mrs Abram should not require on-going regular physiotherapy treatment. Mrs Abram should perform daily exercises given to her by her physiotherapist. Mrs Abram was seen by an orthopaedic surgeon who did not advise surgery. The facet joint degeneration was pre-existing. Mrs Abram, in my opinion, is fit to use public transport.”
31 I have not relied on the reports of Occupational Physician, Dr Clarke who examined the plaintiff on 5 June 2007 and again on 1 July 2008. These reports are exceptional because, amongst other things:
(a)
they failed to articulate any meaningful diagnosis of injury relating to the lifting incident on 26 March 2003; and
(b)
notwithstanding the spinal pathology revealed on radiological investigation argued (without explaining why) that the plaintiff had “no current work injury”.
32 Orthopaedic surgeon, Mr Simm, examined the plaintiff on 18 July 2007 and again on 3 July 2008. Relevantly, Mr Simm said that he reviewed the radiological film other than the MRI film, for the interpretation of which he relied on Mr Johnson’s advice that it showed “isolated lumbosacral disc
degeneration with a small central disc protrusion. There was no major
prolapse or nerve root compression”. Based on the radiological evidence, and
no doubt the results of his clinical examination, Mr Simm diagnosed:“ … unresolved aggravation of L5/S1 lumbar disc degeneration which relates to the work incident on 26th March 2003. The pattern of her pain has changed slightly in the last 12 months. She is now reporting more left-sided sacro iliac and buttock pain. I noted in the file material that she has variously reported right and left-sided pain in the past. She has no significant radiating pain into the legs and no signs of radiculopathy.”
33 Having previously examined the plaintiff at the request of the WorkCover agent, on 22 January 2008, Consultant in Occupational Health and Safety, Dr Wallin, was asked to examine the plaintiff for the purpose of advising the first defendant about the nature of the plaintiff’s:
“ … current injury, what her current fitness is for employment in her division 1 nurse role, her work restrictions and if I consider if she is not able to perform her current duties, the details of other tasks and duties which she is capable of performing, whether that is on a full-time unrestricted basis or part-time, whilst you require me to advise the likely duration of incapacity and the existence of any permanent impairment, my prognosis and any other matter which you consider to be relevant.”
34 Relevantly, following this examination, Dr Wallin confirmed that the plaintiff was still suffering from:
“ongoing active lower back disability which does appear to still be appropriately designated on an ongoing basis as continuing aggravation of pre-existing lumbar spine pathology including the earlier diagnosed multi-level facet joint diseases and multi-level disc disease, particularly at the lumbo-sacral disc level”.
Compensable Injury
35 Allowing for the radiological evidence of probable pre-existing degenerative disease, and for the different diagnoses (some of which pre-date the radiological investigations and/or the results of the facet joint and sacroiliac injections), it is probable that on 26 March 2003 the lifting incident aggravated the abnormality shown at the L5/S1 level of the plaintiff’s spine and disc and facet joint degeneration in the plaintiff’s lumbar spine.
36 The medical opinion, to which I have referred, also favours a finding that the injury-related impairment of the plaintiff’s lumbar spine at particularly the L5/S1 level is permanent in the sense that it is likely to persist for the foreseeable future.
Pain and Suffering
37 I have already mentioned that the defendants have accepted that the consequences of the permanent impairment of the plaintiff’s spine, with respect to pain and suffering, are “serious” because, when judged by comparison with other cases in the range of possible impairments or losses of function of the spine, they are fairly described as being more than significant or marked and as being at least very considerable.
38 On the evidence before me I am satisfied that the plaintiff has met the serious injury test as required by the Act in respect to pain and suffering. Without repeating this evidence in detail, it includes the fact that:
(a)
the plaintiff regularly takes both anti-inflammatory and painkilling medication so as to maintain her domestic and employment activities to which she gives precedence over the social/recreational activities she previously enjoyed;
(b)
the content of the plaintiff’s detailed affidavit material and in particular, paragraphs 4 and 6 of her first affidavit and paragraphs 2(d) and 4 of her second affidavit;
(c) the content of her husband’s corroborating affidavit; and (d)
the fact that the permanent impairment of the plaintiff’s lumbar spine precludes a return to her pre-injury nursing duties.
Loss of Earning Capacity
39 By consent following the hearing both the plaintiff and the defendants provided written submissions on this issue. I have read these submissions and the extensive materials tendered which touch upon this issue.
40 Sub-section 134AB(19) of the Act requires that I be satisfied that the injury is a “serious” injury and, for the purpose of showing a loss of earning capacity in accordance with sub-s.(38), it places the onus on the plaintiff of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative, further or additional employment, and the extent of such inability.
41 “Suitable employment” is defined in s.5 of the Act to mean:
“ … employment in work for which the worker is currently suited (whether or not that work is available) having regard to the following –
(a)
the nature of the worker's incapacity and pre-injury employment;
(b) the worker's age, education, skills and work experience; (c) the worker's place of residence; (d)
the details given in medical information including the medical certificate supplied by the worker;
(e) the worker's return to work plan, if any; (f)
if any occupational rehabilitation services are being provided to or for the worker.”
42 Relevantly, according to sub-s.134AB(38):
(i)
paragraph (b), the term “serious” is to be satisfied by reference to the consequences to the plaintiff of any impairment or loss of the function of her lumbar spine with respect to a loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function;
(ii)
paragraph (c), the impairment or loss of function of the plaintiff’s lumbar spine shall not be held to be serious unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable;
(iii)
paragraphs (e)(i) and (ii), the plaintiff must also establish that at the date of hearing she has a loss of earning capacity of 40 per centum or more measured in accordance with paragraph (f) and that she will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(iv)
paragraph (g), the plaintiff does not establish the loss of earning capacity required by paragraph (b) where she has or would have, after rehabilitation or retraining, and taking into account her capacity for suitable employment after the injury, and where applicable, the reasonableness of the plaintiff’s attempts to participate in rehabilitation or retraining, a capacity for any employment, including alternative employment or further or additional employment which, if exercised, would result in the plaintiff earning more than 60 per centum of gross income from personal exertion had the injury not occurred;
(v)
paragraph (j), the assessment of serious injury is made at the time this application was heard.
43 Based on evidence of comparable earnings it was common ground that the plaintiff’s gross annual income figure, which in accordance with paragraph (f) most fairly reflects the plaintiff’s earning capacity had the injury not occurred, is $68,998 (that is her “without injury earnings”).
44 It follows from this that the plaintiff must establish on the balance of probabilities that currently she does not have and will not have for the foreseeable future an earning capacity of 60 per centum (that is, $41,398 gross per annum or $796 gross per week) or more of her without injury earnings figure.
45 Proceeding on the basis that it is probable that the plaintiff is permanently incapacitated for her pre-injury employment as a CNS (a view supported by most of the recent medical evidence), the real question in this case is whether, if exercised in suitable employment, the plaintiff’s earning capacity exceeds the statutory threshold.
The Plaintiff’s Evidence and Her Responses in Cross-examination
46 I have already referred to the support the plaintiff required from both her mother and her husband from July 2007 to ensure that she coped with her return to a temporary position in administrative duties for six hours per day, three days per week, for a total of 18 hours per week.
47 At hearing the plaintiff also:
(a)
said that her formal arrangement with the first defendant involved her working six and a half hours (inclusive of a 30 minute lunch break) between 9am and 3.30pm. However, to avoid long commuting times between Campbellfield (her mother’s address) and the hospital during peak hour traffic, the plaintiff was permitted to commence at either 7.30am or 8am which reduced her driving times to 25 or 30 minutes instead of 45 minutes to an hour or more which according to the plaintiff represented 85 to 90 per cent of her travelling arrangements;
(b)
said that when her husband was at home at times she drove directly to the hospital from her home in Craigieburn (a journey of between 45 minutes and 80 minutes) or (and this was rare) she dropped her children at Campbellfield before driving to the hospital (a journey of about one to one and a half hours);
(c)
reiterated that the reason for the arrangement with her mother was to reduce the pressure on her;
(d)
said that at times she had been required to work consecutive days “to help the hospital out” which was followed by two consecutive days off “so there’s days in between that I could, you know, recover somehow”;
(e)
said that having gradually reached 18 hours per week at the request of the hospital in one week she tried to work an extra day. However, the 18 hour week was achieved by pushing herself:
“ … to work 18 hours and get in to work. To do 18 hours, the number one reason was financial reason; I wasn’t getting paid anywhere else and financially, like, that 18 hours would make us, you know, our home loan and everything, get us under scratch. So I think I was doing over my limit even doing the 18 hours a week”;
(f)
expressed her opinion that she could not work more than 18 hours per week;
(g)
denied having the capacity in her final year of employment to work more than 18 hours per week;
(h)
noted that on the occasions she was required to start at 9am she had longer commuting times in peak hour traffic;
(i) explained (in a series of responses) that after working six hours she could not perform another 1, 2 or 3 hours because:
“ … I’ve got to have back pain or my leg pain. I was taking tablets regularly in order to keep myself fit to work those six hours … in order to continue, well, you know, I was sitting or – sitting most of the time. Yes, I could get up and walk around and do things. Go to the photocopier, go to the phone, go get a glass of water, and change my posture. Change the position I was sitting in, but yes, it was strenuous … I was sitting. It was standing, stooping. There’s a lot of things. It wasn’t just sitting after six hours. … I get home from work and I wouldn’t be able to stand and wash a lettuce at that day. I would have to stand with my – I’d have to stand at the sink like this washing lettuce after a day, but that could also be on a day that I wasn’t doing anything. There’s days that I can do and that I – you know, that I can manage things different”;
(j)
explained that even if she reduced her commuting times by working closer to her home, she probably would not be able to work longer hours, although she still believes that she could manage her pre- termination hours;
(k)
generally confirmed her evidence in her second affidavit that in 2008 she unsuccessfully applied for numerous part-time positions with both the first defendant and in the health sector, which include nursing positions;
(l)
noted that she had sought work as a part-time clinical liaison nurse which could involve eight hours per day for two days per week;
(m) confirmed her intention to keep searching for suitable employment; (n)
said that if she had to she could sit for three hours and drive long distances. However, to do so she needed to take painkillers both the night before and in the morning;
(o)
confirmed that on occasions following work she went to the supermarket or, as she said in her first affidavit in October 2007, on one occasion she attended a toy sale.
48 Based on the affidavit material and the plaintiff’s responses given in cross- examination, parts of which are already either reported or summarised in this judgment, the defendants submitted that the plaintiff “has a considerable
capacity to engage in both employment or of the normal activities of daily
living, including prolonged driving” (the latter evidenced by her acknowledgment that she travelled to and from work, as well as her evidence that during a family holiday to NSW she preferred driving the family vehicle to being the parent who had to twist and turn to attend to the needs of her very young children).
The Vocational Assessment Evidence
49 In January 2005, prior to the plaintiff’s return to work in part-time administrative duties, the insurer obtained a Vocational Assessment from an occupational rehabilitation consultant with the Industrial Work Conditioning Clinic (“IWCC”). In this report a number of suitable alternative vocational occupations (“which may require further exploration”) were suggested, having regard to:
(a) the plaintiff’s training and extensive nursing work experience; (b) the medical evidence obtained in 2004 from Drs Singh and Wallin and Mr Marshall, all of which established a light work capacity which at the time Dr Singh restricted to working two days per week for three hours per shift; and (c) the plaintiff’s obvious willingness to structure her family life to accommodate a return to light duties. 50 The suitable alternative vocational occupations mentioned in the report were Registered Nurse (light duties), Practice Nurse, Nurse Educator, Secondary School Nurse, Rehabilitation Consultant, Support Services Coordinator, Nursing Agency, Allocations Consultant, Emergency Telephone Operator, Medical Receptionist, Ward Clerk and Medical Filing Clerk.
51 Nevertheless, following this assessment the first defendant offered the plaintiff part-time temporary administrative work which, until this employment was terminated in June 2008, had peaked at 18 hours per week. Indeed, in the months preceeding the termination of her temporary position, the hospital had acted on advice it received from Occupational Specialist, Dr Wallin, that:
(a) due to her ongoing disability the plaintiff was unfit to resume routine Division 1 Registered Nurse duties; (b) the plaintiff should avoid: “static seated standing or walking postures for more than about 30 minutes, that she should not engage in other than very minimal flexion, extension or rotation of her back in the course of her employment or domestic activities, whilst she has a lifting limit, in my opinion, of around 5kg”; and
(c) if the plaintiff’s condition could be marginally stabilised (as for instance by a possible lumbar-sacral disc replacement): “ … she probably would be able to engage in the future in half-time day surgery reception tasks; she would probably be able to engage in some pathology specimen collection tasks, although she would not be able to engage in a lot of walking around hospital wards doing that, and thus she would be able to engage in some on-site pathology unity tasks as well.”
52 Based on these restrictions, in March 2008 the hospital recommended that the plaintiff seek employment either within or outside the hospital. However, having accepted that the plaintiff could not return to her pre-injury duties, and having no position available within the plaintiff’s physical capacity, by June 2008 the hospital terminated the plaintiff’s employment.
53 Apart from the advice on which the hospital acted, in 2007 and 2008 a number of doctors were asked by the defendants to comment on the plaintiff’s capacity to engage in suitable alternative employment.
54 I have already mentioned the opinion of the plaintiff’s treating General Practitioner, Dr Singh, who, because of his ongoing contact with her, is probably best placed to assess the extent to which his patient has coped with the 18 hour maximum per week imposed by him some years ago. It follows that he is also well placed to advise whether this maximum represents a reasonable estimate of the plaintiff’s working capacity for the foreseeable future.
55 In June 2008, at the request of the defendants’ solicitors, the second vocational assessment, to which I have already referred, was obtained from Nabenet.
56 The following matters are notable in respect to this report:
(a) as is evident from its preamble (and the Labour Market Analysis given) the maker’s focus was directed to some eight employment options: “providing suitable vocations for a currently registered Division 1 Nurse, specifically in employment as a Clinical Nurse Specialist/Division 1 Nurse; Practice Nurse; Secondary School Nurse; Rehabilitation Consultant; Support Service Co-Ordinator; Emergency Telephone Operator/Nurses on Call; Ward Clerk/Medical Receptionist; and Data Manager”;
(b)
Dr Wallin’s assessment and report obtained in January 2008 was not included in the extensive documentation on which Ms Chua relied;
(c)
Ms Chua wrongly assumed that the plaintiff had worked as a CNS for five years before her injury and that she was currently working with the hospital for 20 hours per week;
(d)
the most recent medical evidence on which Ms Chua relied relating to the plaintiff’s work capacity consisted of reports from Mr Simm and Dr Clarke in 2007. Notably in his reports Dr Clarke stated that the plaintiff had “the capacity for suitable nursing duties” and that she was capable of resuming work in each of the positions identified in the 2005 report prepared by IWCC.
57 At hearing the plaintiff tendered a “Loss of Earning Capacity” document which was based on the positions for which a Labour Market Analysis was given in the Nabenet report, Mr Robertson’s affidavit and on the further position of pathology collector, outlined in correspondence from Dorevitch Pathology.
58 Assuming for the moment that the plaintiff has the physical capacity to perform the range of duties in each of the positions nominated (an assumption not generally supported by the medical evidence) but is nevertheless restricted by injury-related impairment of her lower back to working lesser hours, the calculations contained in this document demonstrate that in these positions to achieve 60 per cent of her without injury earnings figure, that is, $41,398 gross per annum or $796 gross per week the plaintiff would need to work no less than 24 hours per week (for instance as a Clinical Liaison Nurse) or as much as 43 hours per week (for instance as a Ward Clerk).
59 In their written submissions the defendants accepted the accuracy of the calculations made in this document but submitted that if the plaintiff has the physical capacity to work more than 24 hours per week in any one of several positions nominated (that amounts to only three of the named positions), this would result in her earning more than 60 per cent of her without injury earnings figure.
60 Accordingly, as submitted by the plaintiff, if her capacity is limited to 18 hours per week (a maximum endorsed by her treating general practitioner) in administrative work, similar to that in which she engaged prior to the termination of her employment in 2008, the plaintiff should satisfy the requirements of sub-s.(38). Nevertheless, as is evident from the various medical reports submitted the medico-legal specialists have offered conflicting estimates of the number of hours the plaintiff is capable of working in light duties, and conflicting opinions about the plaintiff’s physical capacity to perform all of the duties required in the positions identified in the Nabenet report.
61 For instance, when Mr Simm re-examined the plaintiff in June 2008 he had copies of both the IWCC and Nabenet reports and a position description for a part-time data manager job advertised by the first defendant.
62 However, in his earlier report, in which he discussed the IWCC report, Mr Simm relevantly said:
“ … Occupations that may be within her physical capacity have been identified. She would have to be selective with these occupations. I would anticipate that there would be difficulties finding work as a practice nurse or secondary school nurse that did not involve some physical tasks which were beyond her physical capacity.”
63 Nevertheless, by 2008 Mr Simm opined that within at least eight categories (that is of those mentioned in both the IWCC and Nabenet reports) the plaintiff might find work within her capacity subject to the proviso that:
“She would need to be selective and prospective employers would need to accept the constraints are necessary. She needs work that allows for flexibility with static postures. Objects need to be handed between knee and chest height. She would be confined to handling light objects. She could not physically assist patients or clients. She could not perform prolonged and repetitive forward bending and twisting movements of the trunk.
An occupation which has not been listed which may be suitable for
this worker is that of a collection nurse for a pathology facility.”
64 To this Mr Simm added:
“Assessment of her capacity to undertake part time or full time employment is subjective and depends upon her reported history. She states that she is working to her maximum at eighteen hours per week. If she was provided with appropriate light work, I can see no physical reason why she should not undertake the work for five to six hours, five days per week. I accept that she would have difficulty sustaining eight hours per day on a regular basis.”
65 The plaintiff was not cross-examined about her ability to undertake the various duties described in each of the vocational assessment reports; although, allowing for her evidence of the range of positions for which she has applied, I think it reasonable to assume that the plaintiff accepts that she has the capacity to undertake some of the duties in a number of the positions described subject to appropriate constraints to reflect her disability and subject to a restriction on the hours worked.
66 The defendants placed particular reliance on the fact that Mr Simm appeared to indicate that there is no physical barrier to the plaintiff working between 25 and 30 hours over a five day week.
67 However, the plaintiff disputed that if analysed in its proper context Mr Simm intended to say that the plaintiff had the capacity to work 25 to 30 hours per week in the “heavy jobs” (for instance as a Clinical Nurse Specialist/Division 1 Nurse, Practice Nurse, Secondary School Nurse, Rehabilitation Consultant and Emergency Telephone Operator where, incidentally, she would need to work between 24 and 31 hours per week to earn 60 per cent or more of her without injury earnings).
68 I think on any fair reading of Mr Simm’s reports (and in accordance with the plaintiff’s submissions) Mr Simm’s intended that the longer hours to which he adverted would apply to the lighter jobs, as for example as a Pathology Collector (a position in which the plaintiff would need to perform 41 hours per week to earn more than 60 per cent of her without injury earnings). To interpret his reports otherwise makes a nonsense of Mr Simm’s belief that the positions of Practice Nurse or Secondary School Nurse are probably beyond the plaintiff’s physical capacity.
69 In June 2008 Mr Kudelka thought that the positions listed in the IWCC report represented suitable employment subject to (a) restrictions on bending, stooping and lifting; and (b) the positions being available on a part-time basis for a maximum of 20 hours per week.
70 In August 2008, when commenting on the Nabenet report, Mr Kudelka relevantly said:
“The job of Clinical Liaison Nurse (Parkville) appears suitable. Practice Nurse (Eltham) appears suitable but the patient’s residence in Campbellfield would involve considerable travel. Practice Nurse (various locations, northern Melbourne) is appropriate, as is Practice Nurse (Moonee Ponds). Secondary School Nurse (northern metropolitan region) is suitable, as is Rehabilitation Consultant (Greensborough), Social Support Coordinator (Northern Region). Emergency Telephone Operator, Ward Clerk/Medical Receptionist, Computer Clerk (Parkville), Ward Clerk (Parkville), Data Manager (Parkville), Teacher (Certificate IV in Health Nursing), Quality Assessor (Eltham) are all suitable but in some cases considerable travelling would be involved.
…
With respect to the above positions:(i) I do not think the patient can work on a full time basis.
(ii) I believe this patient is capable of part-time work which should be commenced on a gradual basis and her progress monitored. I believe the present eighteen hours a week is appropriate.
(iii) I believe this patient could work as a Collection Nurse in a pathology facility as no particular strains to her back are required.
(iv) I believe the patient could do this work on a part-time basis.
(v) I believe the patient could work to a maximum of twenty hours
per week.
(vi) Taking into account her travelling from Campbellfield, as stated above I think the maximum number of hours per week she could work as a pathology Collection Nurse would be twenty hours.”
71 Lastly, in his report dated 6 August 2008 Dr Castle commented in some detail on each of the positions referred to in the IWCC report and noted that of the positions described the plaintiff could work as a Nurse Researcher (“essentially what she is doing at present, although limiting herself to the administrative aspects of that work”), a nursing agency allocations consultant or as a Ward Clerk and Admissions Clerk. Relevantly, Dr Castle also said that the plaintiff could continue part-time administrative duties permanently for a maximum of between 20 and 24 hours per week, although this view appears to be based on the mistaken belief (that is contrary to the plaintiff’s evidence) that the plaintiff occasionally worked more than 18 hours per week.
72 Subsequently, on 22 August 2008, having received a copy of the Nabenet report, Dr Castle submitted a further report in which, amongst other things, he:
(a) noted his belief that she did not have the capacity to perform the duties of a CNS full-time and that whilst the physical requirements description “is optimistic” Dr Castle felt that the plaintiff had no capacity “to do that work anymore than the present number of 18 hours a week”; (b) said that it was unlikely that the plaintiff would be able to perform the work of a Practice Nurse “reliably for the indefinite future” although she would be capable of performing the duties of a Practice Nurse within the northern division of general practice because it is a much more restricted role “and it is unlikely that she would be required to do any repeated bending or heavy lifting. However, my comments still stand, in that I consider the present hours of about 18 week as the maximum
Ms Abram can manage … ”;
(c)
reiterated his concerns in respect to a number of the other positions mentioned;
(d)
said that the positions Ward Clerk/Medical Receptionist and Computer Clerk (in Parkville), Admissions Clerk would be suitable for the plaintiff part-time;
(e)
said that with appropriate training the position as a Data Manager would be suitable part-time work;
(f)
said that the position as a Database and Data Administrator be suitable for no more than about 18 hours a week; and
(g)
said that Certificate IV in Health Nursing Teacher was a possibility with appropriate qualifications.
73 In summary, insofar as each of these specialists have considered this issue, and depending on the position discussed their evidence provides assessments of the plaintiff’s light work capacity of between 18 and 30 hours per week.
74 I have already indicated my view that the plaintiff’s evidence of her working capacity supported by her general practitioner is probably conclusive of this issue. However, to the extent that the specialist evidence can be said to be at variance with the plaintiff’s position on this issue:
(a) to allow for the query concerning the intent of part of his last report I have placed less weight on Mr Simm’s evidence on this issue; (b) allowing for their speciality in occupational medicine I have preferred the evidence of Drs Castle and Wallin; and (c) allowing for its general compatibility with the evidence of Drs Castle, Wallin and Singh, (and his consideration of important factors such as travel time) I have also given weight to Mr Kudelka’s opinion. 75 Accordingly, on this evidence the range the plaintiff could reasonably work in suitable light duties is probably 18 hours per week with an upper limit of 24 hours per week. This being so, the plaintiff has met the “serious injury” test in regard to loss of earning capacity in that it is more probable than not that;
•
at the date of hearing she has a loss of earning capacity of 40 per centum or more and she will after the date of hearing continue permanently (for the foreseeable future) to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more;
•
this loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of function of the lumbar spine, fairly described as being more than significant or marked and as being at least very considerable.
76 Moreover, having regard to the rehabilitation undertaken by her and the plaintiff’s earnest efforts to obtain alternative employment (as described by her in her responses to cross-examination and in paragraphs 2(e) to (v) and 5 of her second affidavit) I am also satisfied that the plaintiff has met the requirements of sub-s.134AB(19) and (38)(g) of the Act.
Orders 77
Leave is granted to the plaintiff to bring a proceeding for damages in respect of the pain and suffering consequences and the loss of earning capacity consequences of injury to her lower back suffered on or about 26 March 2003.
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