Bell v Millenium Australia Pty Ltd (in liq)
[2013] VCC 927
•7 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-05067
| JOAN BELL | Plaintiff |
| v | |
| MILLENIUM AUSTRALIA PTY LTD (in liquidation) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2013 | |
DATE OF JUDGMENT: | 7 August 2013 | |
CASE MAY BE CITED AS: | Bell v Millenium Australia Pty Ltd (in liq) & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 927 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Injury to lower spine – disentanglement from other physical injuries – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC with Mr J Valiotis | Slater & Gordon Ltd |
| For the Defendants | Mr A W Middleton | Wisewould Mahoney |
HIS HONOUR:
1 The plaintiff suffered injury to her lower spine on 9 October 2007 while working as a cleaner cleaning commercial offices in the course of her employment duties. She was off work for approximately one year and returned to modified duties on restricted hours. After three months, she was advised no further duties were available. She has not worked since. She claims a range of domestic, recreational, sporting and social activities have been lost or curtailed as a result of her lower back injury.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment on 9 October 2007. The body function said to be lost or impaired is the lumbar spine.
3 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. Several affidavits of the plaintiff and her partner, Mr Darryl McKenzie, various medical and radiological reports, vocational assessments and documents relating to the plaintiff’s application for employment were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in 1959 and is now fifty-three years of age. She lives with her partner and has four children and a number of grandchildren.
6 She was educated to Year 8 and left school at aged fifteen. She worked as a salesperson and in various other areas of employment. Her employment was interspersed with the birth and caring for her various children. She worked as a security officer, drove taxi-trucks, and worked as a cleaner. Although it is not completely clear from the evidence, it would appear that some time in 2007 she commenced work for the first defendant, a contract cleaning company, which contract included cleaning at the Westpac Bank in Ballarat. She started on part-time duties, and by September 2007, was working five days a week, approximately 5 to 6 hours per day, and one hour on the weekends. According to the ‘Payroll Advice’ of the first defendant in relation to the plaintiff for the period 1 February 2007 to 8 May 2007,[1] the plaintiff was earning $18.45 per hour. Her gross weekly earnings were thus $480 to $572 per week.
[1]Exhibit B
7 Before she commenced employment with the first defendant, the plaintiff had been unemployed for a number of years and was involved in home duties, and caring for her four children. She had not filed taxation returns for some years. In evidence, she said that she “felt great” upon returning to the workforce in 2007, and felt that she was part of a team. It was her intention to keep working, absent the workplace injury, through to the present and beyond.
8 Her work cleaning the bank involved vacuuming, emptying bins, cleaning the kitchen and toilets, mopping and cleaning the stairs. She did the work alone, and I accept it was reasonably strenuous.
9 Prior to the workplace incident, she was generally in good health and in particular, had suffered no significant injuries nor restrictions to her lumbar spine. She had a particular area of sporting interest, in that she was a referee for basketball matches in and around the Ballarat area, and in other parts of the state. Most of the refereeing was in relation to junior basketball matches, and for the Wheelchair Basketball Association. She was an accredited referee, and was involved in games as far away as Melbourne, Albury and Sale. In evidence, she said her involvement gave her a particular sense of community in assisting the younger players, and with her involvement with those with disabilities. She said she would referee five to six games per night. According to the history provided to Mr King, orthopaedic surgeon, she refereed twenty to thirty games per week in an average year[2].
[2]Plaintiff’s Court Book (“PCB”) 71
10 She was able to do all of her domestic duties around the home and enjoyed an active involvement with her children and grandchildren.
The injury and its consequences
11 On 9 October 2007, the plaintiff was cleaning the Westpac Bank premises in Ballarat. Her ankle became trapped in a vacuum cleaner cord and she tripped and fell to the ground, striking the left side of her body. According to her affidavit,[3] she suffered pain in her elbow, wrist, shoulder, knee, ankle and lower back. She remained working and reported the matter to her supervisor that evening.
[3]PCB 11
12 The plaintiff attended the Erica Medical Centre the next day and says x‑rays were taken. There is no report from any doctor of this centre. She attended her normal treating general practitioner, Dr Liubinas, on 17 October 2007, complaining of problems with her left wrist, left ankle and lower back. Her wrist and ankle symptoms subsequently resolved. Dr Liubinas referred the plaintiff for hydrotherapy, which she undertook over about a month, and physiotherapy over three or four months. He subsequently prescribed a medication including Endep, a morphine-based pain-relieving medication, and Panamax.
13 In 2009, Dr Liubinas referred the plaintiff to Mr Grant McKechnie, an exercise physiologist, and over a period of about twelve months, he treated the plaintiff, in particular with an exercise program. He also performed massage.
14 Dr Liubinas also treated the plaintiff for depression, which he described as “severe”, and prescribed an anti-depressant. The treatment continued with that practitioner until 2012, when the plaintiff transferred to the care of Dr Vani Peddi of another general practice in Ballarat.
15 In his report of 5 December 2009, Dr Liubinas said the plaintiff had a capacity for restricted or modified duties, given that she had demonstrated the ability to look after her aged father. He said that such work would be restricted by the level of her pain in the lower back and any employer would need to bear in mind the plaintiff’s restrictions. The plaintiff would have difficulty, he said, undertaking lifting, twisting and repetitive bending. He thought the prognosis was for gradual improvement.
16 After the incident, the plaintiff was away from employment for about a year. She returned on light duties for 2 hours, five days per week. After a period of three months, she was advised by her employer there were no further light duties available, and her employment was terminated. She worked for a short period with Kmart, and another employer doing cleaning jobs, but each lasted only a very short time and she was not able to continue because of problems with her lower back.
17 For a short time after the workplace injury, the plaintiff continued her participation as a referee in basketball matches. However, she was unable to continue and has not returned to that activity since.
18 Over the years to the present time, the plaintiff has been prescribed a range of medication. She took the anti-inflammatory, Mobic, for a short period, but suffered side effects. She has taken the anti-depressant medication, Cymbalta. Until recently, she has been prescribed Endep for pain. At the present time, she takes approximately six Panadol Osteo tablets per day. She takes Voltaren, an anti-inflammatory, three times a day. She takes medication to assist with disturbed sleep. She said she had received advice from Dr Peddi that she would be again prescribed morphine patches at some time in the near future, although there is no medical report to this effect.
19 In June 2012, the plaintiff was referred for an MRI scan of the lumbar spine by a Dr Kim Le of the Tristar Medical Group of Ballarat. I do not have a report from this practitioner. According to that scan, the plaintiff has significant degenerative disease in the lumbar spine at all levels. There is facet joint degeneration at a number of levels which, at L3-4 and L4-5, is described as “severe”. At L5-S1, there is said to be significant loss of intervertebral disc height with a broad-based disc bulge causing mild narrowing of the central canal but without contact on the nerve roots. According to the report, “the worst degenerative change is seen within the facet joints”.
20 In 2011, the plaintiff was referred to Dr Thomas Kraemer, neurologist. He noted chronic lumbar back pain. He said it was difficult to give a prognosis, and thought it was unlikely there would be any rapid improvement in the plaintiff’s condition in the near future. In evidence, the plaintiff said she had been referred for a further appointment with Dr Kraemer in September 2013.
21 The plaintiff was referred to the Neurosurgery Spine Clinic of The Royal Melbourne Hospital in 2012. The lumbar pain from which she was suffering was said to be mechanical and degenerative. There was no prospect of surgery to relieve the condition. It was suggested she continue physiotherapy and exercise therapy at Ballarat.[4]
[4]PCB 85G-H
22 In 2012, the plaintiff commenced a course and obtained a Certificate II in Commercial Cooking. This year, she commenced a Certificate III in Commercial Cooking, which she expects to complete in 2014. In evidence, she said she had been looking for work in the food industry and had obtained several work trials, but no work had come about as a result. She accepted, in cross-examination, that she had some capacity for part-time employment in this area. She has applied for various jobs in the Ballarat area but has not been able to obtain any employment.[5] All of the jobs for which she has applied have been for part-time employment, several hours per day, several days per week. She admitted she had not applied for any jobs since February of this year as she had become disheartened at the previous rejections. At this time, she is in receipt of a disability pension. For a period in 2009, she cared for her aged father at home, although he was subsequently admitted to a nursing home. She said she did very little for him when he lived in her house.
[5]See various letters at PCB 98-102
23 According to the various reports of Mr Kevin King, orthopaedic surgeon, of more recent times, the plaintiff has also suffered problems with her left knee and left hip. He said there are underlying degenerative changes in both areas and with her obesity, and those degenerative changes, it was likely that there would be further deterioration with the prospect of joint replacement surgery to both areas.
24 At the present time, the plaintiff says she suffers constant low-back pain of varying severity, exacerbated, depending upon the activities in which she is involved. Her sleep is disturbed, and she takes sleeping medication each night. She regularly wakes and has to sleep on a recliner in another room from her partner. She says she is fatigued and irritable. She does some of the lighter domestic duties, but her partner, Mr McKenzie, undertakes the heavier jobs. In the course of her cooking training, she has to get up and leave the lecture room on a regular basis. Her lecturers are sympathetic and accommodate her difficulties. She drives for short periods, but finds driving to Melbourne difficult. She goes shopping but for lighter groceries. She is not as active as she was previously, and is unable to return to her involvement in basketball, which she regards as a significant loss.
25 According to an affidavit of the plaintiff’s partner, Mr McKenzie,[6] the couple enjoy a less active social life because of the plaintiff’s back problems. He said she is unable to do the vacuuming, mopping and carrying washing to the line. He said she has become upset and despondent because she has been unable to return to employment.
[6]PCB 15F-15I
Medical opinions
26 The plaintiff was examined on behalf of the defendants by Dr Ralph Poppenbeek, occupational medicine consultant, in May 2008.[7] She complained to that practitioner of pain across her lower back, radiating into the left leg as far as the calf, with some pins and needles. He noted the CT scan of November 2007 described a small L5-S1 annular bulge without nerve root displacement. He considered the plaintiff suffered discogenic pain in the lumbar spine. He suggested the plaintiff did have a work capacity providing she avoided unsupported repetitive or prolonged bending, and lifting of greater than 5 kilograms. He suggested the plaintiff commence work 4 hours per day, five days per week, gradually increasing the hours.
[7]PCB 40
27 In September 2009, Dr Liubinas certified the plaintiff as fit for some duties, although the Certificate of Capacity[8] is unclear as to restrictions and hours of work.
[8]Exhibit 2
28 The plaintiff was examined on a number of occasions by Mr Kevin King, orthopaedic surgeon, over the period from March 2011, with the final examination in February 2013. In his most recent report, the plaintiff described to Mr King constant low-back pain, present day and night, fluctuating in intensity and at least at a moderately severe level. Mr King had available the MRI scan of June 2012. His opinion was as follows:
“This fifty-three-year-old woman continues to be significantly and increasingly disabled by progressive degenerative arthritis in the lumbar spine and left knee and, over the last two years, by the development of symptoms in the neck and left hip – also obviously associated with underlying quite longstanding degenerative changes, but not previously causing symptoms as such.
She is an impressively clear historian, in the original history she told me that up to the time of the heavy fall in the office on 9th October 2007, although obese, she had led a very active and vigorous life, including the regular refereeing of between twenty and thirty basketball matches a week throughout the course of the average year and was on a nationwide roster for basketball referees.
It is a reasonable assumption that at the time of the accident of 9th October 2007, if for no other reason than because of her obesity, she probably already had well established degenerative changes in the cervical and lumbar spine. … .
I think it is reasonable to accept that the heavy fall on 9th October 2007 at work precipitated the onset of backache and of left knee pain in the previously arthritic but symptomless lumbosacral and left knee regions and both these areas have continued to deteriorate and she continues to be quite severely disabled by increasingly severe back pain and by left knee pain as well. … .
The overall impression is of a strongly motivated woman who struggles to get about, is still looking for light work to support herself and has been unsuccessful and she will continue to deteriorate steadily, particularly in regard to the low back, left knee and left hip pain. … .
She could not do pre-injury duties but she could possibly manage light, part-time cleaning duties of several hours a day, several days a week at an absolute maximum. From a practical point of view there is little hope that any employer would take her on in her present state as a cleaner – it is possible, but unlikely. … .
She is very limited in her social, domestic and recreational activities.
Prognosis is poor.”[9]
[9]PCB 78D – 78F
29 I was provided with a report of Ms Kaye Angel of Flexi Personnel Pty Ltd, a vocational assessor. I did not find the report of particular assistance as, in my view, the assessment of the plaintiff’s work capacity falls to be determined by medical opinion.
30 On behalf of the defendants, the plaintiff was examined by Dr John Lange, occupational physician, in February 2012 and June 2013. On each examination, he detected evidence of abnormal illness behaviour.[10] He concluded the plaintiff had suffered a soft-tissue injury to her lumbar spine as a result of the fall at work. He noted that radiological investigations, in particular the MRI scan of June 2012, showed degenerative changes in the lumbar spine. He thought the plaintiff’s activities as a basketball referee could cause degenerative change. He said that given the incident occurred in 2007, that by the present time, he would have expected the exacerbation caused by the workplace incident to have settled, and was of the view the plaintiff had recovered from that incident. He said her current symptoms in her lumbar spine were not work related.
[10]Defendants’ Court Book (“DCB”) 6, DCB 13
31 The plaintiff was examined by Mr Kendall Francis, surgeon, on behalf of the defendants, in March 2010. Like Dr Lange, he found evidence of non-organic abnormal reaction upon examination. He did not have available the MRI scan of June 2012. The report is of only modest assistance, as its purpose appears to be an assessment under the AMA Guides.
32 The plaintiff was examined by Dr Dominic Yong, occupational physician, in August 2011. He found magnification of the plaintiff’s symptoms upon examination. He concluded the plaintiff had a work capacity providing the work tasks were performed with restrictions:
· The plaintiff work three shifts per week, 4 hours in duration
· She avoid repeated bending, twisting, pushing and pulling, lifting of more than 5 kilograms, squatting and kneeling and be able to vary her posture.
33 The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, on a number of occasions in 2010, 2012 and most recently in June 2013. By the time of the last examination, he had available the MRI scan of June 2012. He noted there was diminished left ankle jerk reflex compared to the right side. Straight leg raising severely aggravated the plaintiff’s back pain. He described the MRI scan as showing multi-level degenerative changes, particularly involving the facet joints, evident at a number of levels and “severe” at the L4-5 level. He noted the plaintiff had not been able to return to any form of employment despite applications for work. He said the following:
“This patient suffers from advanced degenerative disease affecting the small joints at a number of levels in her lumbar spine associated with some degenerative disc disease. This is manifesting as severe back pain and restriction of spinal movement. I can find no evidence of objective signs of neurological impairment involving the plaintiff’s lower limbs.
I can find no evidence of any functional symptoms or signs in this patient’s presentation.
This patient’s back condition renders her incapable of any type of physical employment. In light of her level of back pain symptoms and restrictions in terms of her capacity to sit, I believe she is even unsuitable for sedentary employment. I believe that her current level of incapacity is likely to persist in the long term. Only conservative treatment is appropriate for the management of this patient’s back complaint.”[11]
[11]DCB 63
34 Finally, the plaintiff was examined by Mr Peter Dohrmann, neurosurgeon, in May 2012. He received complaints of lumbar back pain as being constant and radiating to the left leg. He was advised of the CT scan of November 2007 which he said showed a small L5-S1 disc bulge. He noted the plaintiff presented with chronic low-back pain and referred left leg pain, and noted an absent left ankle jerk which raised the possibility of a disc protrusion probably at L5-S1. He suggested an MRI scan. He thought there was a functional component and a psychological reaction to the physical condition. He thought the plaintiff did have a work capacity providing she did not lift weights of more than 5 kilograms, did not undertake any repetitive work and that she perform duties for 5 hours per day, four days per week. He suggested against prolonged sitting or standing. He said full-time employment would be unlikely. Any return to work would need to be on a graduated basis, 2 hours, three days per week, gradually building up to full time.
Conclusions
35 I had the opportunity to assess the plaintiff in the course of cross-examination. There were no significant credit issues put to her, and no challenge to her veracity by Mr Middleton in the course of his submissions. The plaintiff appeared to me to be pain focused, although gave her evidence in a straightforward manner without particular embellishment. Generally, I found her to be a witness of truth. I accept her complaints of pain and restriction in the lumbar spine as described in her affidavit, and the histories to the various medical practitioners.
36 While I accept that a number of practitioners, in particular Dr Lange, Mr Kendall Francis and Dr Yong did find evidence of abnormal illness behaviour, I was impressed with the opinions in particular, of Mr King for the plaintiff and Messrs Jones and Dohrmann for the defendants. All those practitioners found the plaintiff a straightforward historian giving a fair account of her symptoms.
37 In terms of that aspect of the plaintiff’s application concerned with pain and suffering, I accept the fall of October 2007 caused the onset of significant pain in her lumbar spine which has persisted on a constant basis, with aggravations from time to time, through to the present. I accept the opinion of most practitioners that that situation is likely to persist. The injury is in the nature of exacerbation of underlying, pre-existing degenerative change in the lower lumbar spine, in particular the facet joints, which had been previously asymptomatic.
38 I do not accept the opinion of Dr Lange that the consequences of the work incident have settled, and what pain the plaintiff is suffering from is related to the degenerative change clearly evident on the radiological investigations. The plaintiff was asymptomatic and leading an active life before the injury, and that situation changed dramatically as a result of it.
39 I accept the evidence of the plaintiff that her sleep is significantly disturbed and that she has suffered a significant restriction in a range of domestic and social activities as she describes. Although she has only had conservative treatment, without referral to a treating specialist, with the exception of Dr Kraemer, the plaintiff has been prescribed a significant array of pain-relieving medication, including Endone, and at the present time, takes them in large quantities. I note she has also had physiotherapy and hydrotherapy, although not for some considerable period.
40 Of significance is the loss to the plaintiff of the capacity to participate as a referee in basketball matches. It was clearly a major aspect of her life and she refereed regularly over a considerable period. The loss of such an activity, I accept, is very substantial to the plaintiff.
41 Mr Middleton submitted that there was a disentangling exercise in relation to the consequences suffered by the plaintiff, and he submitted that clearly the plaintiff’s left hip and knee caused considerable pain and restriction, and that the consequences she alleges were contributed to, in part, by the problems in those areas. That was particularly so, said Mr Middleton, because she faced the prospect of joint replacement surgery at some time in the future. However, I am satisfied from the bulk of the medical evidence that the most significant problem that the plaintiff suffers is to her lower spine. The plaintiff said the problems with her left knee and hip were of much less significance than the back. She said that the problem with her sleep and her inability to work as a referee were both a direct result of her lower back injury. I am satisfied that the plaintiff has sufficiently disentangled the consequences of those other injuries.
42 As to that aspect of the plaintiff’s application which relates to economic loss, there is divergence in the medical opinion as to the plaintiff’s work capacity. I am impressed with her efforts to obtain employment. She has written to a number of potential employers seeking part-time work in the food industry. I accept she has made reasonable endeavours in that regard. However, the legislative requirements of the Act are concerned with capacity for employment, rather than availability of work.
43 A number of practitioners are of the view the plaintiff has a work capacity, albeit for modified duties, and reduced hours. Of significance, in my view, is the MRI scan of June 2012. Only Mr King, for the plaintiff, and Mr Jones and Dr Lange, for the defendants, had that scan available. It clearly shows significant degenerative change in the plaintiff’s lumbar spine with the change being described as “severe” at a number of levels in the facet joints. I prefer the opinions of Mr Jones, whose view is that the plaintiff has no effective work capacity, and Mr King, whose view is that if the plaintiff has a capacity, it is for light part-time duties, several days a week for several hours a day, at a maximum. In my view, these two practitioners provide the most comprehensive and informed view of the plaintiff’s work capacity.
44 Prior to the injury, the plaintiff was working approximately 30 hours per week. If the plaintiff has a current work capacity, it is only very modest, and only, as Mr King describes, for a few hours a day, a few days a week, significantly less than the 60 per cent of her prior work capacity as the legislation requires. In all the circumstances, I am satisfied the plaintiff has proved that as a result of the subject lumbar spine injury, her work capacity is reduced by more than 40 per cent.
45 Thus the plaintiff’s application both as to pain and suffering, and loss of earning capacity succeeds. I shall make consequent orders.
- - -
0
0
0