Bateman v St John of God
[2018] VCC 530
•1 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00255
| JULIE MARIE BATEMAN | Plaintiff |
| v | |
| ST JOHN OF GOD HEALTH CARE INC (ABN 21 930 207 958) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2018 | |
DATE OF JUDGMENT: | 1 May 2018 | |
CASE MAY BE CITED AS: | Bateman v St John of God | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 530 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – disabling injury the right ankle – concession that the pain and suffering consequences of the impairment of the function of the right ankle are “serious” – whether the loss of earning capacity consequences are “serious” – whether the plaintiff fit for certain forms of employment said to be suitable – analysis of the plaintiff’s transferable skills – whether the plaintiff had engaged in rehabilitation and retraining
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law to recover damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC Mr S Dawson | Holding Redlich (t/a Holding Redlich & Adviceline Injury Lawyers) |
| For the Defendant | Ms G J Cooper | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-five-year-old woman who suffered injury to her right ankle in the course of her employment with the defendant on 28 September 2012.
2 The defendant conceded that the pain and suffering consequences of the impairment of function of the plaintiff’s right ankle are “serious”. The defendant submitted that the issue left for me to consider is whether the loss of earning capacity consequences of the impairment of the function of plaintiff’s right ankle are “serious”.
3 Mr J Brett QC appeared with Mr S Dawson of Counsel for the plaintiff. Ms G J Cooper of Counsel appeared for the defendant.
The Plaintiff’s injury
4 The plaintiff was referred to Mr Keith Winters, orthopaedic surgeon. She first saw him in May 2015. His initial diagnosis was that she had suffered an Achilles insertional tendinopathy and right posterior ankle impingement. He referred her to undergo a range of conservative treatments which included physiotherapy, dry needling, cortisone injections and orthotics.[1]
[1]Plaintiff’s Court Book (“PCB”) 61
5 It became apparent to Mr Winters that the conservative approach had not resolved the pain and instability which the plaintiff was experiencing. He advised her to undergo surgery. The surgery was performed on 2 June 2016. It involved an Achilles debridement, excision of a Haglund calcaneal tubercles and posterior impingement. The plaintiff was discharged from Mr Winters’ care with a plaster back slab, then an orthopaedic boot. She was referred to have physiotherapy.[2]
[2]PCB 62
6 The plaintiff last saw Mr Winters on 8 September 2017. He noted that she continued to have pain in her right ankle. He was content to refer the plaintiff to Mr Imer, a physiotherapist, who specialises in foot and ankle rehabilitation.[3] Mr Imer noted that the plaintiff continued to evidence restriction of movement in her right ankle.[4]
[3]PCB 66 and 67
[4]PCB 67
7 Subsequently, the plaintiff was examined by a number of medical practitioners for opinions relevant to the presentation of this application. One of those was Mr William Edwards, orthopaedic surgeon. He examined the plaintiff on 28 September 2017. In a lengthy report bearing the same date,[5] he considered that the plaintiff had suffered insertional Achilles tendinosis with a retrocalcaneal bursitis. He also considered that she had most likely suffered a Haglund’s spur. He suspected that she had also suffered a ganglion and that she may have suffered plantar fasciitis. Of particular relevance is his opinion that the plaintiff could engage in prolonged sitting for at least an hour-and-a-half, prolonged standing and walking and prolonged driving for approximately half-an-hour, but could not squat or run.[6]
[5]PCB 68-74
[6]PCB 74-75
8 Dr Eva Jory, general practitioner, expressed a similar opinion relevant to the plaintiff’s mobility. However, she expressed it as a “severe difficulty” for the plaintiff to engage in prolonged standing, walking and driving. She was also of the opinion that the plaintiff could not squat, and would find lifting from a standing position or lifting and having to stand up from a chair a problem.[7]
[7]PCB 58-59
9 The plaintiff was also examined by Dr David Middleton, occupational health and rehabilitation consultant, on 26 October 2017. He provided a report dated 14 November 2017.[8] He was of the opinion that the plaintiff had suffered an aggravation of previously asymptomatic calcific Achilles tendinitis resulting in retrocalcaneal bursitis, and a partial tear of the plantar fascii. He considered that because of a change in the plaintiff’s gait, that she had developed or aggravated a ganglion at the base of her right metatarsal.
[8]PCB 76-103
10 Dr Middleton considered that the plaintiff’s ability to stand is limited to 5-10 minutes; walking to 20 minutes; driving to 60 minutes, and sitting comfortably for about 45 minutes. He considered that she could not run. He did not refer to her capacity to squat, but I accept that she cannot squat.
11 Dr Middleton was asked to consider the plaintiff’s capacity for suitable employment, and in particular, as a commercial cleaner, domestic cleaner, welfare support worker, animal attendant and divisional therapist. Each of those forms of suitable employment were to be found in a Vocational Assessment Report dated 21 September 2015.[9] Dr Middleton noted that the author of that report had not assessed the physical requirements of each of those forms of employment, and had not considered the physical restrictions that should be placed upon her.
[9]Defendant’s Court Book (“DCB”) 67-76
12 Dr Middleton ultimately considered that the plaintiff could not perform her pre-injury duties. He considered that she was restricted to sedentary non-manual duties which she could perform self-paced, with work breaks and applying the “preclusions and restrictions” which both he and Dr Jory considered to be relevant. The particular restrictions he was referring to are restrictions on the plaintiff’s mobility which I have summarised both from his report and the report of Dr Jory.
13 The defendant had the plaintiff examined by a number of medical practitioners, the most relevant of whom is Dr Dominic Yong, specialist occupational physician. For the sake of completeness, I will refer to the examination by Dr Roy Karna, rheumatologist, on 29 January 2014 and Mr Bruce Love, orthopaedic surgeon, on 20 July 2015. Neither offered an opinion inconsistent with the opinions of Mr Winters, Dr Jory and Mr Edwards relevant to a diagnosis of the injury. Their opinions relevant to the plaintiff’s capacity for work and what restrictions needed to be imposed upon her capacity for work are really overtaken by the more recent opinions of Mr Edwards, Dr Middleton and Dr Yong. In any event, counsel concentrated their addresses on the opinions of the latter medical practitioners.[10]
[10]Dr Karna at DCB 1-4 and Mr Love at DCB 8-15
14 Dr Yong examined the plaintiff on 15 November 2017 and provided a report bearing the same date.[11] He provided a supplementary report dated 19 March 2018.[12] He did not re-examine the plaintiff before providing the supplementary report. Dr Yong examined the plaintiff, but only briefly referred to a diagnosis of the injury to the plaintiff’s right ankle. He described it as an Achilles tendinitis and posterior impingement, and he noted that she had persisting right ankle dysfunction.[13] He described the restrictions he would place on the plaintiff differently from the other medical practitioners. He considered that the plaintiff needed to avoid repeated squatting and kneeling tasks, prolonged standing and walking tasks, repeated firm pushing and pulling duties, and lifting more than 7 kilograms on a repeated basis. To that end, his opinion is at odds with Mr Edwards, Dr Jory and Dr Middleton relevant to squatting, and he did not apply his mind to the extent to which the plaintiff could engage in sitting, standing and walking as did the other medical practitioners.
[11]DCB 21-34
[12]DCB 35-42
[13]DCB 28
15 Dr Yong was provided with a Labour Market/Worksite Assessment Report of Recovre dated 15 March 2018.[14] The report identified forms of employment which were considered suitable employment for the plaintiff. They were:
[14]DCB 91-135
§ customer service representative
§ cashier
§ receptionist
§ contact centre operator
§ admissions clerk; and
§ welfare support officer.
16 However, counsel for the defendant informed me that the focus of the defendant’s case was that the plaintiff is fit for four forms of suitable employment, namely:
§ cashier
§ checkout operator
§ receptionist; and
§ welfare services officer (also referred to as a lifestyle diversionist).[15]
[15]Transcript 9
17 Dr Yong considered that each of those forms of employment are suitable for the plaintiff.[16]
[16]DCB 39-41. It should be noted that he referred to the checkout operator and cashier as the one job
The Plaintiff’s evidence
18 Although, the plaintiff referred to having completed Year 11 at a high school, there is more to that than appears from what she originally deposed to in her first affidavit.[17] The plaintiff described herself as being a poor student. She described having difficulty reading and spelling correctly. Simple reading and no doubt writing were fundamental disciplines which she said she avoided “all through school”. She did not pass Year 11.[18]
[17]PCB 13
[18]Transcript 31-32
19 The plaintiff described difficulty reading. She described that when she reads things go “back to front”. She spells words “back to front”. When she reads, what she reads becomes mixed up. It was for that reason that rather than persevering with those fundamental disciplines, she did art.[19] It was while giving that evidence that she described using particular glasses to read, and that she suffers from Irlen Syndrome.[20] She said very little about that syndrome, but in simple terms, it is a perceptual processing disorder which interferes with the brain’s ability to process visual information.
[19]Transcript 32-33
[20]Transcript 32-33
20 Despite her obvious learning difficulties, the plaintiff was able to enter the workforce as a sewing machinist for two years, housekeeper for six years, and then in her partner’s pet shop/aquarium business for the next twenty-five years. It was suggested to her under cross-examination that she must have acquired some degree of sophisticated knowledge of administration if she was able to assist in the running of a pet shop business. She described a business which left me with the distinct impression that it was a simple and unsophisticated pet shop.
21 The plaintiff subsequently obtained employment with the defendant as an environmental services assistant/cleaner commencing on 20 September 2007. She worked 36 hours per fortnight. After she suffered the right ankle injury, she initially worked on light duties, then normal duties on reduced hours over the following four weeks. She took some further time off before she was informed by the defendant that her employment was terminated as of April 2016 because it was unable to accommodate the limitations that her right ankle injury placed upon her capacity to work.[21] Among the tasks which she performed after returning to work were vacuuming, mopping, making beds, cleaning bathrooms and using a scrubber machine to clean around a pool. She found using the scrubber machine difficult. While she was on her feet while performing many of these tasks, she was allowed breaks every 30 minutes to sit down and take the weight off her feet. She said her right foot “really hurt” after being on her feet for 30 minutes.[22]
[21]PCB 15-18 and Transcript 15-16
[22]Transcript 16-19
22 An issue arose with the plaintiff’s shifts being changed from afternoon to evening, and the plaintiff working consecutive shifts. She described suffering increased pain in her right ankle if she worked consecutive shifts, and that appeared to be due to having to operate the scrubber machine.[23]
[23]Transcript 17-19
23 The plaintiff commenced doing some voluntary charity work with an MS support organisation. She was eventually paid for performing three hours’ work per week. She is now working on a voluntary basis for Southern Cross Care. She takes her dog to the Mentone Nursing Home where she provides companionship to nursing care residents. She also has paid employment providing companionship to a woman named Synthe. Neither the voluntary work nor the paid employment involve any physical tasks.[24]
[24]PCB 19 and Transcript 13, 19-21
24 The plaintiff was cross-examined about qualifications that she has acquired through what struck me as being relatively simple certificate courses. She obtained a teachers aid certificate which involved learning how to operate a VHS video machine.[25] She completed Certificate III in Health Services Assistance.[26] She commenced a Certificate IV course in leisure and health which she has not completed. It was largely computer-based learning which the plaintiff found difficult to undertake. She was told by those running the course that it may not be an appropriate course for her.[27]
[25]Transcript 26
[26]Transcript 28 and DCB 160-162
[27]Transcript 33 and DCB 163-165
25 Under cross-examination, the plaintiff was referred to two résumés which she prepared. One was prepared at the time when she commenced employment with the defendant.[28] The next was probably prepared after she ceased working with the defendant.[29] Additionally, the plaintiff was referred to a skills assessment undertaken by Ms Rintoule, human resources consultant, of Flexi Personnel, of the plaintiff’s literacy skills which included observation, comprehension, spelling and writing. The performance overview was a score of 75 out of 83, apparently out of 90 per cent.
[28]DCB 156-157 and Transcript 25-26
[29]Exhibit 4 and Transcript 39-40
26 Counsel for the defendant’s cross-examination of the plaintiff’s educational background, working background, extra educational pursuits, literacy testing and her résumé was undertaken for the purpose of attempting to demonstrate that the plaintiff is far from a modestly educated woman, and indeed, has transferable skills which can be improved if she pursues Certificate IV, and similar skill education.
27 The plaintiff’s evidence did not impress me as demonstrating that she is as well-educated as the collection of the topics on which he was cross-examined superficially suggest. The plaintiff struck me as a woman who struggled with her secondary education. She has pursued education which has physical demands rather than intellectual demands. I think to suggest that she is capable of working in employment other than relatively basic work is inconsistent with the impression that I obtained of her.
28 Counsel for the defendant cross-examined the plaintiff about her capacity to meet the physical demands of the four forms of employment said to be suitable employment. A part of that cross-examination was directed to plaintiff’s capacity to sit, stand, walk and drive. The plaintiff did not agree with the manner in which Mr Edwards recorded her capacity. For example she said that his opinion that she could walk for half-an-hour were not her words. If she did walk for that long, her right leg “is burning after that”.[30] In relation to sitting, she has to avoid dangling her right foot, and she has to get up and move around or wriggle her ankle while she is sitting. She did not accept that she could sit for an hour-and-a-half.[31] She flatly denied that she could stand for half-an-hour because her right ankle hurts if she does.[32]
[30]Transcript 38
[31]Transcript 38
[32]Transcript 38-39
29 I accept the plaintiff’s evidence that she is very limited in her mobility, including sitting and driving. I think that is very clearly borne out in all of the medical reports which I have referred to. Although the medical practitioners differ in their methods of measuring the plaintiff’s capacity to sit, stand, walk, drive, squat and run, I think they are largely matters of emphasis. I think they are all of the same mind that the plaintiff’s right ankle injury is very disabling. This evidence fortifies me in concluding that I must accept the plaintiff’s evidence of the extent of the disabling impact which her right ankle injury has on her, and, in any event, I found her to be a refreshingly direct and honest witness whose evidence I unhesitatingly accept.
30 I do not accept that any of the forms of employment which are said to be suitable employment are indeed suitable.
31 The duties of a checkout operator/cashier are referred to in the Konekt NES Vocational Assessment Report,[33] a Konekt JSS Report[34] and a report of Recovre.[35] The report of Recovre refers to a physical requirement of walking or standing to a significant degree, with a degree of pushing and pulling and/or leg controls.[36] I think those physical demands immediately discount that form of employment as being suitable.[37]
[33]DCB 58-66
[34]DCB 83-90
[35]DCB 91-135
[36]DCB 62, 86 and 93-94
[37]DCB 94
32 The report of Recovre refers to a receptionist,[38] welfare support worker[39] and lifestyle assistant (classified under divisional therapist).[40] It occurs to me each of these forms of employment requires someone with a vastly superior intellect to the plaintiff and vastly higher levels of learning than the plaintiff has or is probably capable of obtaining.[41]
[38]DCB 97-98
[39]DCB 100-101
[40]DCB 101-102
[41]DCB 63-64
33 I do not propose to dissect the particular tasks which are described in the report of Recovre because they are very extensive. I think it is sufficient for me to observe, firstly, the plaintiff has never engaged in work as a receptionist, welfare support worker or lifestyle assistant. Each of them obviously require good communication skills, capacity to read and write reasonably well, computer skills and significant administrative skills. The plaintiff possesses none of these save at the most basic level. I am fortified in reaching that conclusion because when she attempted the Certificate IV course, she was unable to comprehend what the course entailed, and not only did she find it difficult to undertake it, but she was told that it was not an appropriate course for her to do. I infer because of her capacity to learn and acquire new skills.
34 Counsel for the defendant cross-examined the plaintiff about her possession of an iPad and a home computer. It was cross-examination designed to suggest that the plaintiff is skilful in her use of computers and computer software and at least has that transferable skill. My impression was the very opposite. I was left with the impression that the plaintiff is barely in possession of the rudimentary skills in computing and use of computer software.[42]
[42]Transcript 26-28
35 Counsel for the defendant submitted that there is an onus borne by the plaintiff under ss38(g), and no doubt it is the case that the plaintiff fails to establish the requisite degree of loss of earning capacity unless she has undergone rehabilitation and retraining and has made reasonable attempts to participate in rehabilitation and retraining for the purpose of acquiring a capacity for suitable employment. It was suggested that she could return to the Certificate IV course, and the fact that she has not, and has not pursued any other forms of rehabilitation and retraining, mean that she has not discharged the onus that she bears under the subsection.
36 I am not persuaded that there is any merit in the submission. The plaintiff has undergone all of the medical treatment as advised. She returned to work unsuccessfully. She has returned to voluntary work and some paid work which demonstrates a sound motivation. She has attempted to retrain, but attempted retraining which was unsuccessful for reasons which I have adequately dealt with above.
37 A letter from Recovre dated 12 April 2018, together with correspondence from the defendant’s solicitors, was produced by the plaintiff. It refers to Recovre’s concern about the suitability of “divisional therapist and welfare support worker”.[43] Despite what is contained the letter, I have concerned myself with the medical evidence, and in particular, the difference of opinion between Dr Middleton on the one hand and Dr Yong on the other regarding the limitations which ought to be placed on the plaintiff with respect to a return to suitable employment, and the suitability of the forms of employment which they were asked to consider as suitable employment.
[43]Exhibit 3
38 After considering the plaintiff’s evidence, all of the medical evidence, the forms of employment said to be suitable employment, and the submissions of counsel, the conclusion I have reached is that none of the forms of employment said to be suitable employment are in fact suitable employment.
Conclusion
39 Therefore, I am satisfied that the loss of earning capacity consequences of the impairment of the function of the plaintiff’s right ankle are “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
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