Birbirsa v WorkSafe Victoria
[2012] VCC 1881
•6 December 2012
| THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04618
| ABEBA BIRBIRSA | Plaintiff |
| v | |
| WORKSAFE VICTORIA | First Defendant |
| and | |
| NAMMCO PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2012 | |
DATE OF JUDGMENT: | 6 December 2012 | |
CASE MAY BE CITED AS: | Birbirsa v WorkSafe Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1881 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Serious injury – injury to the lower back – whether the pain and suffering consequences were “serious”
LEGISLATION CITED: s134AB(38)(c) of the Accident Compensation Act 1985
CASES CITED: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52; Halpin v Wilson Transformer Company [2012] VSCA 235
JUDGMENT: The plaintiff have leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Henry Carus & Associates |
| For the Defendants | Mr M Clarke | Wisewould Mahoney, Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 28 September 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the second defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr R Stanley of Counsel appeared for the plaintiff and Mr M Clarke of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 8-22g and 32-60: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-65: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained sub-s(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born in September 1975 in Ethiopia and is now thirty-seven years of age. She migrated to Australia in 2003. She is a married woman, with three children, aged nine, six and four-and-a-half months.
10 The plaintiff completed her secondary schooling in Ethiopia when she was nineteen years of age. She subsequently obtained employment as a secretary, a computer operator and as a data processor. She also worked in Kenya for three years, prior to migrating to Australia, doing voluntary work.
The Incident Causing Injury
11 The plaintiff commenced employment with the second defendant on 12 November 2003. She was employed as a housekeeper at the Quest Hotel at 172 William Street, Melbourne.
12 The tasks the plaintiff was required to perform as a housekeeper are set out in her first affidavit sworn 12 May 2011. Essentially, they involved, among other things, making up beds. On 21 March 2005, the plaintiff was making a bed. She was straightening up after having fitted a sheet to a mattress when she felt sharp pain in her lower back.
The Plaintiff’s Medical Treatment
13 The plaintiff saw Dr Dawood, general practitioner, on 23 March 2005. No medical reports were produced from Dr Dawood. The only reports are two referral letters to Dr Thomas, consultant in rehabilitation in pain medicine, dated 2 May 2005 and 10 December 2012. They contain very little detail save for a reference to the fact that the plaintiff was a housekeeper, suffered injury on March 2005 to her lower back, and was experiencing pain in her lower back and left leg.
14 However, Dr Dawood's clinical notes were reproduced in the DCB. The clinical notes provide some window into the plaintiff's medical treatment at the hands of Dr Dawood. On 23 March 2003, the plaintiff attended Dr Dawood. He recorded a complaint by the plaintiff of lower back pain and pain radiating into her right leg. The entry in the clinical notes of pain radiating into the right leg must be an error, because it is not consistent with the first referral letter to Dr Thomas, nor with the history taken by Dr Thomas which he recorded in his report dated 18 July 2005 of lower back pain with pain radiating into the left leg.
15 Dr Dawood examined the plaintiff and found tenderness at the L5-S1 level of her lumbosacral spine. He prescribed Brufen (an anti-inflammatory), Panadeine Forte (a pain reliever), and Panamax (also a pain reliever). He referred the plaintiff to have a CT scan, which was taken on the 30 March 2005. The radiologist reported that the CT scan demonstrated a bilateral L5 pars defect without significant spondylolisthesis, a broad-based posterior disc bulge at L5-S1 which minimally indented the thecal sac, and associated facet joint degenerative change at L5-S1.
16 The plaintiff saw Dr Dawood fairly regularly between 23 March 2005 and 19 July 2005 complaining of lower back pain and pain radiating into her left leg. Importantly, on 7 June 2005, the plaintiff complained of pain when she engaged in cooking, standing and changing the nappy on one of her children.
17 Dr Dawood referred the plaintiff to Dr Thomas, who then took up the plaintiff’s treatment for some time. The plaintiff first saw Dr Thomas on 12 July 2005. He saw her on 8 September 2005, 5 January 2006, 8 February 2008 and 19 February 2008. He may have also seen the plaintiff after an MRI scan was taken on 13 March 2008, but it is unclear from his report dated 27 April 2011 whether in fact he did.
18 Dr Thomas referred the plaintiff to have a CT scan, which was taken on 11 February 2008, and also an MRI scan, which was taken on 11 March 2008. On the basis of the treatment he provided the plaintiff, and the radiological investigations, he was of the opinion that the pain the plaintiff was experiencing in her lower back probably came from the lumbosacral disc level, that the plaintiff was suffering from irritation of the left L5 nerve root and was probably suffering from some exit foraminal stenosis at the lumbosacral level.
19 Dr Thomas referred the plaintiff to undertake a functional restoration program at the Victorian Rehabilitation Centre. When he reviewed the plaintiff on 8 September 2005, he noted that the plaintiff was three weeks into the rehabilitation program. When he reviewed the plaintiff on 5 January 2006, she had completed the rehabilitation program and had returned to work four days per week, six hours per day.
20 What is clear from Dr Thomas's report dated 18 July 2005, and his further reports of September 2005, 11 January 2006, 8 February 2008, 20 February 2008, 27 March 2008 and 27 April 2011, is that the plaintiff had persisting lower back pain and pain radiating into her left leg. The importance of Dr Thomas’s history of persisting lower back pain and radiating pain into the plaintiff's left leg must be seen in the context of the submissions made by Mr Clarke, that there was a drop off in the plaintiff’s treatment demonstrated in the clinical notes of Dr Dawood.
21 Dr Dawood's clinical notes from 19 July 2005 disclose that the plaintiff did not return to see him complaining of lower back pain until 10 December 2007. On that occasion, the plaintiff was complaining of lower back pain with pain radiating into her left leg. The pain was worsening and she was experiencing numbness, presumably in her left leg. As a result of those complaints, Dr Dawood made an appointment for the plaintiff to see Dr Thomas on 7 February 2008. In fact, Dr Thomas saw the plaintiff on 8 February 2008. Dr Dawood prescribed the plaintiff Brufen.
22 Dr Dawood's clinical notes disclose that the plaintiff did not return to see him complaining of lower back pain until 4 May 2010. The clinical notes also disclose that the next occasion the plaintiff returned to see him complaining of lower back pain was on 30 March 2011. Thereafter, the clinical notes disclose reasonably frequent attendances by the plaintiff complaining of lower back pain.
23 The plaintiff's solicitors forwarded the reports of Mr O'Brien, orthopaedic surgeon, dated 23 April 2012, and Mr Wilde, orthopaedic surgeon, dated 4 April 2012 to Dr Thomas for his comment. Dr Thomas considered the opinions expressed by Mr O'Brien and Mr Wilde. He noted that Mr O'Brien was of the opinion that the plaintiff was suffering from lower back pain associated with pain radiating into the left leg, and Mr Wilde was of the opinion that the plaintiff had suffered discogenic lumbosacral pain with referred symptoms in to her left leg without radiculopathy. He also noted that both Mr O'Brien and Mr Wilde were of the opinion that the plaintiff would be able to return to work as a personal care attendant. Mr Thomas said that he agreed with their opinions.
24 The plaintiff continues to see Dr Dawood. She has not had any other rehabilitation or paramedical treatment, such as physiotherapy or chiropractic treatment. She is presently breastfeeding her third child. She has been advised not to take Brufen when breastfeeding because it might adversely affect her child. However, she takes one Brufen at night, and otherwise takes a Panadol daily for pain relief.
The Plaintiff's Return to Work
25 The plaintiff returned to work after completing the rehabilitation program organised by Dr Thomas. She eventually returned to her usual duties with the second defendant until September 2006. She stopped working because she fell pregnant. She gave birth to her child in January 2007. The plaintiff did not return to work with the second defendant.
26 The plaintiff undertook re-training in aged care in 2008. She attended the Alpha Omega Academy in Dandenong. The re-training course was conducted over a three-month period. The plaintiff attended classes once a week from 6.00 pm to 9.00 pm. On completion of the course, she obtained a Certificate III in Aged Care.
27 The plaintiff subsequently obtained employment in aged care. She worked in an aged care facility for about four years until May 2012, when she stopped work because of the impending birth of her third child. In 2010, the plaintiff worked 72 hours per fortnight. In the other years, she worked an average of 58 hours per fortnight. The plaintiff said the work she did involved working in a team of two workers; the purpose being for the two workers to help each other with the tasks which are required to be undertaken relevant to the needs of residents of the aged care facility. She said that she has taken some time off work because of problems with her lower back, but the evidence was unclear as to the frequency she took time off.
28 The plaintiff's third child is four-and-a-half months old. She is presently off work on maternity leave. She intends to return to work in July 2013. I infer from that evidence that she has the physical capacity to undertake the tasks required to work 58 hours per fortnight.
The Medico-Legal Assessments
29 The plaintiff was examined through the solicitors for the plaintiff by Mr Steedman, general surgeon, in March 2011 and November 2012 (in neither report does Dr Steedman identify the date on which he actually examined the plaintiff) and by Mr O'Brien, orthopaedic surgeon, on 23 April 2012. The plaintiff was medico-legally examined through the solicitors for the defendants by Mr Jones, orthopaedic surgeon, on 31 August 2011; Mr Wilde, orthopaedic surgeon, on 4 April 2012; Mr Hart, orthopaedic surgeon, on 20 May 2012, and Mr Dooley, orthopaedic surgeon, on 25 October 2012.
30 In summary, the medico-legal assessments are very similar. The radiology discloses that the plaintiff shows evidence of Grade 1 spondylolisthesis at L5-S1, which probably pre-dated the onset of the pain she experienced on 12 November 2003. She has pain in her lower back, probably emanating from an aggravation of degenerative changes at the lumbosacral level and associated left leg pain. The leg pain may be related to irritation of the left L5 nerve root.
31 I think Mr Dooley summarised the position well:
“Mrs Birbirsa has an underlying naturally occurring structural defect of the low lumbar spine i.e. bilateral pars defects at the L5 level with an associated grade one spondylolisthesis at the lumbosacral level. This is a developmental condition that develops during pubertal years. Because of the increased strain and load upon the adjacent lumbosacral disc, this disc degenerates at a faster rate and at an earlier chronological age than would otherwise occur… I believe Mrs Birbirsa aggravated underlying degenerative disc disease at the lumbosacral level of the spine in this episode… In association with inflammation around the degenerative disc and spondylolisthetic area, one can see irritation of the adjacent exiting nerve root. Certainly it is possible that some of Mrs Birbirsa’s ongoing left lower limb pain relates to irritation of the left L5 nerve root.”
32 The preponderance of the medical evidence is that the plaintiff is unfit for her pre-injury employment as a housekeeper. She is fit for her employment in aged care, and that is clear enough from the fact that she has been able to work in that field of employment for many years prior to the birth of her third child, and has an intention to return to that employment in July 2013 at the end of her maternity leave.
Pain and Suffering Consequences
33 Mr Clarke conceded that the plaintiff suffered a compensable injury which has permanently impaired the function of her lower back and has produced consequences which may be significant, but not very considerable.
34 Mr Clarke concentrated his attack on the plaintiff's case on the fact that the plaintiff has had little medical treatment, and is capable of working 58 hours per fortnight, and at one stage 72 hours per fortnight. In essence, Mr Clarke submitted that the plaintiff has retained a level of capacity to function which outweighs what she has lost.
35 What is clear from the clinical notes of Dr Dawood is that the plaintiff had a significant amount of medical treatment from 23 March 2005 to 12 July 2005, when he referred the plaintiff to Dr Thomas, who then took up her treatment. Dr Thomas saw the plaintiff subsequently on 8 September 2005, 5 January 2006, 8 February 2008, 19 February 2008 and maybe after the MRI scan of 13 March 2008 was taken.
36 The observation made by Mr Clarke that the plaintiff was not having much active treatment from early 2006 onwards is correct, but, in my view, it does not recognise the fact that the plaintiff had an established injury which had been diagnosed accurately by Dr Dawood and Dr Thomas at a very early stage. There seems to be little doubt that Dr Thomas was of the opinion, from the outset of his treatment of the plaintiff, that she was suffering from an injury to the lumbosacral disc level, and that she had associated left leg pain. That opinion was confirmed by him when he saw her in 2008.
37 The consequences to the plaintiff were likewise established, and that takes me back to the importance of the history taken by Dr Dawood in his clinical notes of 7 June 2005 in which the plaintiff then complained of having pain cooking, standing and changing the nappy on one of her children. Those complaints are consistent with the complaints the plaintiff made when she was examined by the medico-legal specialists, and in her affidavits.
38 The medico-legal specialists appear to have understood the fact that the plaintiff had what might be regarded as modest medical treatment, and was able to return to work in aged care. They were not misled in any sense, that what they were dealing with was a woman who was complaining of persisting lower back pain which was disabling to a degree, but which permitted her to continue working in a suitable occupation. Notwithstanding the history, as they understood it, the preponderance of the medical evidence discloses that they considered that she was not fit for her pre-injury work, but was fit for light work. The plaintiff’s description of the work she is capable of doing in aged care gave me the impression that it is light work done in a team setting with another worker.
39 Lastly, there was a pathological basis which has been identified which explains the pain which the plaintiff described to Dr Dawood, Dr Thomas and to the medico-legal specialists. It was explained eloquently by Mr Dooley in the passage I quoted from his report.
40 The plaintiff swore two affidavits in which she described the consequences to her as:
· Interference with sleep;
· Aggravation of her lower back problem by physical exertion, for example, sitting and standing for an extended period of time;
· Aggravation by the work she does presently in aged care producing increased levels of pain, and resulting in her taking the odd day off;
· Interference with her sexual relationship with her husband because of lower back pain. I accept that she sometimes sleeps in a different room to her husband because her disturbed sleep pattern disturbs his sleep pattern;
· Interference with domestic tasks such as cooking, cleaning her home and shopping;
· Interference with her capacity to play with her older two children;
· Interference with her involvement with the Ethiopian community, and, principally, organising social activities allied to church community activities;
· Interference with what I consider to be modest recreational activities such as playing volleyball. I do not accept that the plaintiff was a person who played a lot of sport, but I do accept that the community activities in which she was involved probably involved her to some degree in social sporting activities;
· Interference with her capacity to wear high-heeled shoes because of the increased pain that causes;
· The need to take Panadol and Brufen for pain relief;
· The need, since early 2011, to see Dr Dawood more frequently for treatment for lower back pain. I accept that the plaintiff has recently received a referral to Mr Timms, surgeon, for an assessment of her lower back condition. She is not made the appointment to see him, but intends to.
41 The plaintiff's husband, Gachene Berhanu Sultessa, swore an affidavit on 30 October 2012, as did Roman Berhanu Sultessa, the sister-in-law of the plaintiff, on 5 November 2012, and Rebecca Miesso Emano, a friend of the plaintiff, on 7 November 2012. No challenge was made to the matters deposed to by each of those persons. The substance of their affidavits corroborates the evidence of the plaintiff of the social, domestic and recreational interference which the plaintiff has suffered as a result of her lower back injury and pain in her left leg.
42 I do not accept that the lack of medical treatment is as great an obstacle to the plaintiff obtaining a serious injury, as was submitted by Mr Clarke. Whilst I accept that the plaintiff did not obtain significant medical treatment between early 2006 and early 2011, she did see Dr Dawood and Dr Thomas, making the very same complaints of pain that she made at the outset. I do not accept the fact that the plaintiff did not consume significant prescription medication is likewise such a great obstacle. I accept the plaintiff's evidence that she had a sensitivity to the use of some medication, and otherwise uses it sparingly now because she is breastfeeding her third child.
43 While the plaintiff's application is not clear-cut, it bears out the sorts of characteristics referred to in a number of Court of Appeal decisions that are consonant with the methodology applied by Judges in this Court in determining whether an application should succeed or fail.[2]
[2]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52 and Halpin v Wilson Transformer Company [2012] VSCA 235
44 Balancing the competing submissions made by Mr Stanley and Mr Clarke, and, having regard to the evidence of the plaintiff, her witnesses and the medical evidence, I think that nearly every aspect of the plaintiff's life has been the subject of interference by her lower back injury. She has suffered those consequences since March 2005 and to date, and overall medical evidence points to the plaintiff being likely to suffer those same consequences for the foreseeable future, and probably without respite.
45 It is for these reasons that I have concluded that the pain and suffering consequences contended for by the plaintiff are “at least very considerable”.
Conclusion
46 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the second defendant.
47 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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