Bird v VWA
[2017] VCC 623
•23 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-01444
| Tammy Bird | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January & 15-16 May 2017 | |
DATE OF JUDGMENT: | 23 May 2017 | |
CASE MAY BE CITED AS: | Bird v VWA | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 623 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the right knee and lumbar spine
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr D Myers | Hall & Wilcox |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming damages in respect of both pecuniary and non-pecuniary loss suffered by her by reason of injury sustained in the course of her employment with the defendant.
2 There is no issue that the plaintiff suffered a work-related injury to her right knee which manifested itself on 13 October 2008.
3 Neither is it in issue:
· that in management of the symptoms associated with that injury the plaintiff underwent a significant regime of treatment which culminated in the insertion of a spinal cord stimulator in June 2013; and
· that associated with this procedure the plaintiff developed symptoms of back pain which have persisted since that time.
4 It is not in issue that the consequences to the plaintiff of the injury sustained to her knee and those associated with her back pain generated by the presence of a spinal cord stimulator may be aggregated in the assessment required of me in this instance, it being accepted by the defendant that the latter symptoms are a consequence of the treatment associated with the injury sustained by the plaintiff to her knee.
5 Further in assessing the plaintiffs capacity for employment in this instance there is no issue that I should take into account the impact which the epilepsy with which the plaintiff presented prior to 13 October 2008 has upon her capacity for employment when considered in the context of the impact upon that capacity of the symptoms and disabilities generated by reason of her knee injury and her back pain.
6 In this proceeding the defendant appropriately concedes that the plaintiff presents with a work-related incapacity arising from the injury to her right knee in October 2008 which constitutes a serious injury as defined by The Accident Compensation Act (“the Act”) insofar as it impacts upon the plaintiff’s pain and suffering and loss of enjoyment of life.
7 It follows that in this instance the task required of me is to assess whether or not the plaintiff presents with an impairment which is such that her capacity to earn income meets the statutory threshold which entitles her to commence a proceeding claiming pecuniary loss damages.
8 In the application the plaintiff relies upon two affidavits sworn by her and an affidavit of her husband who has known the plaintiff some 16 years. In addition the plaintiff gave viva voce evidence largely in the form of cross examination. The content of the plaintiff’s affidavit evidence and her viva voce evidence are matters of record and I will not refer to the evidence in detail other than where to do so is required to give context to my findings.
9 For the reasons which follow I am satisfied that the plaintiff does so present and accordingly that she is entitled to the leave sought in this instance.
The credibility and reliability of the plaintiff as a witness
10 The plaintiff’s credibility was attacked by the defendant on two bases:
(i) Firstly it was asserted that the plaintiff had exaggerated the impact upon her life of her pre-existing epilepsy; and
(ii) Secondly it was asserted that the plaintiff had made no attempt to retrain herself and had wrongly taken the view that she had been rendered unemployable such as she had no prospect of future employment. Essentially it was put that in taking that position the plaintiff had been selective as to the type of work which she was prepared to undertake and that this attitude on her behalf spoke against her credit.
11 I am not satisfied that there is any merit in either of these positions.
12 What is clear is that the plaintiff has not presented for quite some time to any doctor with a complaint that she suffered from regular fitting caused by her epilepsy. The plaintiff accepted that position in her evidence and explained that she took care to avoid activities which might initiate an epileptic fit such as allowing herself to become overtired or to be exposed to computer screens for long periods of time.
13 She further explained that her fits took a number of forms and that given that her epilepsy was reasonably controlled and she was in a position to identify the activities which might be inclined to generate a fit and she generally avoids such activity, it had not been her practice to report the onset of fits to medical practitioners.
14 I accept the plaintiff’s evidence as to the steps which she takes to avoid the onset of fitting. In my opinion her evidence in that regard accords with the practice which common sense would suggest a person prone to epileptic fits which are initiated in response to certain activity would adopt.
15 Whilst it was put on behalf of the defendant that the plaintiff had conceded in the course of cross examination that her recent history of fitting as described by her in her affidavit was incorrect I am not satisfied that the transcript bears that position out when the plaintiff’s evidence is considered in its context.
16 As to the second basis upon which the plaintiff’s credibility is challenged I am satisfied that the plaintiff’s position that the combination of her pre-existing epilepsy and the disability which she suffers in her back and knee, when considered in the context of the plaintiff’s work history and life experience operate such that the plaintiff’s view as to her retained capacity for employment is justified.
17 Contrary to the position asserted for by Counsel for the defendant, I found the plaintiff to present as an honest and reliable witness who, whilst at times became frustrated and impatient as to the challenges made to her in cross examination, made no attempt to exaggerate her disability or to avoid making the concessions upon which the second of the two attacks upon her credit referred to above was based.
18 Further, the surveillance evidence tendered by the defendant in this instance in my opinion failed to demonstrate the plaintiff to engage in any activity inconsistent with the level of disability described by her affidavits or viva voce evidence.
19 Whilst Mr Myers, Counsel who appeared on behalf of the defendant, rightfully points to the fact that a precise diagnosis has not been made as to the cause of the plaintiff’s low back pain there is no issue that it arises secondarily to and by reason of the insertion of the plaintiff’s stimulator and no issue has been taken by the plaintiff’s treating doctors as to the veracity of the plaintiff’s ongoing complaint of back pain.
20 Given the fact that the plaintiff’s initial presentation involves one associated with the condition of her knee and the long history of the management required by that condition prior to the insertion of the stimulator I do not find it surprising that many of the medical practitioners focus their attention upon that condition and its cause and effect, and not the condition of the plaintiff’s lumbar spine.
21 Given the chronicity of the symptoms associated with the latter condition however I am satisfied that it is probably stabilised notwithstanding the lack of medical evidence as to that issue.
22 Whilst it was put that the plaintiff has no inclination to seek to rehabilitate herself it is not an issue that:
· the plaintiff has attended and completed a pain management course;
· the plaintiff had sought funding to pursue a diploma in dental technology but was unable to do so because of the refusal of “the insurance company… to pay for the full cost of the course”[1];
[1] PCB 15.
· the plaintiff had considered undertaking administrative or office based courses which she did not follow up because of
“…the limitations I experience in sitting because of pain, I felt that those courses would be of limited benefit. I have not received any assistance or vocational training from the insurance company”[2].
[2] PCB 20.
23 The plaintiff’s evidence as to each of these issues is not the subject of challenge and I am satisfied for the reasons which follow that the plaintiff’s position as to her incapacity for administrative or like work is justified.
24 In the course of her viva voce evidence the plaintiff said:
· that she managed her symptoms with the regular use of slow-release Oxycodone, Endone, Panadol and Nurofen. (The plaintiff’s medical records bear that evidence out)[3].
· that she was never free of back pain and that she employed her spinal cord stimulator for two or three hours a day because to employ for longer periods decreased its effectiveness. She accepted that when her stimulator was operating it reduced the symptoms in her knee by up to 80%. She said however that it had no impact upon the symptoms in her back. She described her symptoms as being such that she was required to manage them by taking a shower and lying down for half an hour to an hour at least once a day.
[3] T37.
25 The plaintiff’s medical records bear out her evidence as to the regular use by the plaintiff of narcotic medication.
26 The plaintiff’s evidence as to her need to rest daily was not challenged. I find her evidence as to that issue to be consistent with her recourse to significant amounts of narcotic medication. Further, it is supported by the unchallenged affidavit evidence of her husband. For these reasons I accept it.
27 I am satisfied that:
(i) the evidence establishes that the plaintiff presents with ongoing symptoms in her right knee and her back and with the tendency to develop epileptic fits if she exposes herself to significant periods in front of a computer screen.
(ii) the plaintiff’s long history, which is continuing, of being required to manage her symptoms of knee pain by the use of a spinal cord stimulator, and both knee pain and back pain by the use of narcotic medication and analgesia attest to the significance of her symptoms.
(iii) the long history of the plaintiff’s recourse to those forms of medication is consistent with the presence of a condition which would limit the plaintiff’s ability to tolerate:
· bending, squatting, standing or walking for long periods as far as her right knee is concerned; and
· bending, sitting or standing for long periods as far as her back is concerned;
and I accept the plaintiff’s evidence that she suffers from these incapacities about which, again, there was no real challenge.
28 The plaintiff’s evidence that she is required to regularly rest in bed is set out in her affidavits and corroborated by the affidavit of her husband. It is not the subject of challenge and I accept that evidence.
29 Terrence Bird deposed to the fact that his wife needed to lie down “most days”[4]. The plaintiff’s evidence was to similar effect, which as I have said was largely unchallenged, and I accept that evidence.
[4] PCB 24B.
30 Whilst it was put that the plaintiffs success in obtaining a tertiary degree demonstrated a considerable potential to be retrained for various forms of employment I accept the plaintiff’s evidence that her university course was extended from three years to five years by reason of the effect which her epilepsy had in limiting her ability to tolerate working on a computer for significant periods of time and I am satisfied that that inability has persisted to the present date
The medical evidence as to the plaintiff’s capacity for work and work related activity
31 Prof Mark Cook, a urologist, has managed the plaintiff’s epilepsy since 1996. In a report dated 3 March 2017 he opined:
· that the plaintiff’s condition is well managed via the cocktail of Epilim and and Lamictal; and
· that the plaintiff should not have
“prolonged periods of time in front of a computer screen when fatigue can sometimes make people more liable to seizures. I would suggest not more than an hour straight at a computer before there is a reasonable break, which I would consider to be 15 minutes at least”[5].
[5] PCB 78A.
32 The plaintiff was assessed on behalf of the defendant by Prof Stephen Davis who opined generally as to the relevance of the plaintiff’s epilepsy upon her capacity to work with a computer. I do not interpret the comments made by Prof Davis to involve any real disagreement with the opinion expressed by Prof Cook on this issue. Even were there to be some disagreement between the two experts I’m satisfied that Prof Cook is best placed to opine upon this issue given his long relationship with the plaintiff.
33 Having regard to my specific instruction to the parties on 24 January 2017[6], I propose to take no account of any assessment by Prof Davis as to the plaintiff’s capacity for physical activity. In my view the opinion expressed by Prof Davis in that respect involves a clear breach of that instruction.
[6] Transcript page 27, lines 1-27)
34 In making that comment I am in no way critical of the defendant solicitors whose briefing letter to Prof Davis did not seek to obtain an opinion upon that topic.
35 The plaintiff was managed on a regular basis by the medical practitioners at the Narre Warren clinic until 2015 when she moved to Moe and came under the care of Dr Kee.
36 In a medical report dated 2014 Dr Adelbaki of the Narre Warren clinic reported that:
· the plaintiff had made a slow recovery from her work-related right knee injury which had been treated by the prescription of Norespan patches and local injections of steroids into the right knee and Ketamine infusion;
· she had undergone regional pain management involving local injections with minimal response;
· she had undergone insertion of a spinal cord stimulator in June 2013 at which time her symptoms were improved but were exacerbated after a tear of back muscles around the wires of the stimulator.
37 The plaintiff’s regular history of narcotic medication is detailed in the medical records of that practice.
38 In a report dated August 2016 Dr Andrew Muir, a consultant in pain management, describes a similar history to that which I have referred above. He notes that when reviewing the plaintiff in March 2014 after the implementation of the spinal cord stimulator, she presented with back pain and a history of having fallen on a number of occasions. By May 2014 he reported that the plaintiff was making progress and that her back pain was a less significant component than previously.
39 As at July 2016 Dr Muir opined:
· that the plaintiff had completed a multidisciplinary pain management program from which she reported some improvement; and
· that he and her treating team had recommended that an occupational rehabilitation provider should assist in exploring vocational options for the plaintiff.
40 In March 2017 Dr Muir reported that the plaintiff was suffering from intractable leg pain which was mitigated by her spinal cord stimulator but that this device was starting to malfunction and required revision.
41 In the course of her evidence the plaintiff readily conceded that when her spinal cord stimulator was operating effectively, it reduced her knee symptoms by up to 80%. She said however that while she used the stimulator daily she was required to limit its use to up to 3 hours a day as to employ the stimulator for longer periods reduced its efficacy.
42 The plaintiff’s evidence as to the significance of her symptoms when her stimulator is not operating is consistent with the terminology employed by Dr Muir in his report of March 2017 in which he described those symptoms as involving “intractable leg pain.”
43 I am satisfied that I should assess the plaintiff’s capacity for work related activity on the basis that she presents with symptoms of leg pain of some significance when her stimulator is operating and with intractable leg pain for much of the day when it is not operating.
44 The plaintiff first presented to her current general practitioner Dr Kee some 16 years ago before she moved out of the area. She re-presented to him in October 2015 and since that time Dr Kee has managed her condition on a day to day basis.
45 In his most recent report of December 2016 Dr Kee describes the plaintiff’s history of presenting with significant back pain, which responded reasonably to medication but which was associated with significant periods of aggravation such that she was at times bedbound. He described her as having problems with dressing, showering and toileting, driving and extended sitting or standing, commenting that she had difficulty managing home duties such as vacuuming, cleaning and washing.
46 Dr Kee commented that notwithstanding the plaintiff’s completion of a pain management course she was still in pain and that at times the plaintiff’s pain was so severe that she required daily OxyContin and Endone.
47 As at December 2016 Dr Kee reported that the plaintiff was still employing daily OxyContin and Endone, that she was unable to work due to ongoing disability, that her prognosis was guarded and that he was uncertain as to when she would be able to return to work or whether she would make a full recovery.
48 The plaintiff’s evidence satisfies me that her condition has not altered in any significant way to that reported upon by Dr Kee in December 2016.
49 Mr Thomas Kossman, an orthopaedic surgeon, reported upon the plaintiff’s presentation as at 18 October 2016 at which time he opined that the plaintiff presented with the condition in her right knee which was such that she was unable to walk long distances, or on uneven ground, up and down stairs, on inclines\declines, climb up and down ladders, kneel, squat or carry heavy items may weighing more than 5 to 10 kg and that she presented with no work capacity as the result of her right knee condition alone.[7]
[7] PCB87.
50 When he examined the plaintiff in November 2016, Dr Peter Blombery found the plaintiff to be presenting with no wasting of the thigh and a full range of movement in her right knee ankle and foot. He nevertheless opined that the combination of her right knee injury, the complex regional pain syndrome and the injury to her back when considered together operated so as to result in the plaintiff having:
“ no capacity for work on a reliable, permanent and consistent basis”[8]
and that her prognosis for recovery was poor.
[8] PCB 97.
51 Mr Michael Shannon assessed the plaintiff on two occasions in 2010 and most recently in July 2016. As at December 2016 he opined:
· that the plaintiff presented with the knee condition which restricted her in the performance of activities involving kneeling, squatting, climbing and heavy lifting and opined that whilst work involving those sorts of activities were beyond the plaintiff; but equally
· that the plaintiff retained a capacity for suitable employment work but limited to a maximum of 20 hours per week.
52 I interpret the opinion expressed by Mr Shannon to be an opinion based solely upon the industrial incapacity associated with the condition in the plaintiff’s knee and not to be an opinion which takes into account the incapacity associated with the condition present in the plaintiff’s lumbar spine. For that reason I’m satisfied that the true capacity which the plaintiff presents for work-related activity would be significantly less than that about which Mr Shannon has opined.
53 Dr Clive Kenna, a consultant in musculoskeletal pain management, opined as at June 2016 that that plaintiff’s condition had stabilised such that she was fit for suitable employment for a total of 18 to 20 hours per week. He described her employment activities as being limited to those avoiding squatting, kneeling and lifting more than 5 kg and sitting or standing at a workstation.
54 I note that Dr Kenna examined the plaintiff on only one occasion in June 2016 at which time he focused upon the condition with which the plaintiff presented in her knee and paid little attention and made little if any comment about the symptoms with which the plaintiff presented in her back. In these circumstances the opinion expressed by Dr Kenna as to the plaintiff’s capacity for work suffers from the same defect to which I have referred in my analysis of Mr Shannon’s comments and attracts the same conclusion.
55 Dr Michael Baynes has provided a series of reports dated May 2014, February 2015 and July and December 2016. In February 2015 Dr Baynes opined that the plaintiff possessed a capacity for part-time work of approximately 20 hours per week in suitable employment. He expressed a similar position in July 2016. Whilst Dr Baynes:
· obtained a history from the plaintiff that she suffered from back pain radiating into a right groin and down her right leg particularly into her right knee with numbness in her toes; and
· undertook a medical examination which elicited no findings which appeared to be inconsistent with the plaintiff’s history
he nevertheless opined the plaintiff was fit for sedentary type work for between 20 to 25 hours per week with the proviso that she be able to rotate her posture between sitting standing and walking.
56 I find the opinion expressed by Dr Baynes as to the tolerance of the plaintiff for work-related activity to be inconsistent with the general tenor of all other doctors who expressed opinions as to the plaintiff’s capacity for suitable employment. Given that Dr Baynes in considering the plaintiff’s retained capacity for employment:
· did so taking into account both the incapacity which the plaintiff presents by reason of the conditions in both her knee and back; and
· nevertheless opined that the plaintiff has a greater capacity than the subject of the opinions expressed by Mr Kenna or Mr Shannon, which opinions were based solely upon the incapacity which with the plaintiff presents in her knee;
I do not find Dr Baynes opinion at all persuasive on this issue.
Finding as to the figure which appropriately represents the plaintiffs but for injury earnings
57 I accept the position put on behalf of the plaintiff that the figures presented by the defendant as to the earnings of a comparable employee which, in the absence of any explanation reveal a decrease in the plaintiffs earnings in the two years which followed her injury and recovery in the third year to a figure roughly equivalent to that which the plaintiff was earning as of the date of injury, suggest a conservative approach has been taken to identifying the wage available to a comparable employee.
58 In undertaking her calculation Ms Rintoule has adopted, in my opinion, an approach which generates a modest but appropriate increase in income based upon the plaintiff’s earnings in the financial year 2007/08, indexed according to the figure determined by the Australian Bureau of Statistics.
59 Taking into account the plaintiff’s history of employment in which she previously demonstrated the ability to generate income at the rate of $710 per week in 2006 whilst employed for Whittley Cruises Pty Ltd, I am satisfied that it is appropriate to fix the figure which represents the without injury earnings of the plaintiff is calculated in accordance with the provisions of the Act to be $36,184, 60% of which is $417 gross per week.
Finding as to the plaintiff’s retained capacity for employment.
60 I am satisfied that Dr Kee, as the plaintiff’s treating general practitioner, is most probably best placed to opine as to the plaintiff’s level of symptoms and capacity for work. Dr Kee’s opinion is that the plaintiff’s current incapacity for work is consistent with the opinions expressed by Dr Blombery and Mr Kossman as to that issue.
61 Although Dr Kee did not express the opinion that the plaintiff’s condition had stabilised, the general tenor of the medical evidence satisfies me that it has, and I accordingly interpret Dr Kee as expressing the opinion that the plaintiff has permanently lost her capacity for any form of employment.
62 Whilst the opinions expressed by Mr Shannon and Dr Kenna support a retained capacity in the plaintiff for work, when one factors into the opinion expressed by each of these medical practitioners:
· the symptoms with which the plaintiff presents in her back; and
· the restrictions which the plaintiffs pre-existing epilepsy place upon her ability to spend long periods of time in front of a computer:
I am satisfied that, even if I were to find the opinions of these two practitioners to be persuasive as to the issue of the plaintiff’s retained capacity for work-related activity, their opinions would require very significant modification.
63 When appropriately modified to take into account the factors to which I referred above, I am satisfied that the opinions of these two doctors support a true capacity in the plaintiff for suitable employment which is reduced by some 75% or to approximately 10 hours a week.
64 Assuming the plaintiff retained some capacity for employment (which I do not accept for the reasons set out below), I have a significant doubt as to whether the plaintiff would have the capacity to work as a bank teller or a sales clerk having regard to the level of computer-related activity associated with those occupations which would, in my opinion, be likely to expose an employee to a computer screen operating at the very least within their peripheral vision on a constant basis.
65 I am satisfied that it is unreasonable for a person who is exposed to the chance of suffering a significant epileptic fit to be required to undertake employment which increases the chance of such an event occurring even if that event is unlikely.
66 Were the plaintiff to possess a capacity for employment in the highest paid position identified by the defendant as supposedly suitable employment for her, namely that of a bank teller; employment in such a position for 10 hours a week would generate a wage of $405 gross per week which is less than the threshold fixed by the Act.
67 I undertake this analysis merely as a theoretical alternative on the basis of that which I consider to be the high point of an analysis of the medical evidence relied upon by the defendant as to the plaintiff’s capacity for employment.
68 However given my findings as to:
(i) the tolerance of the plaintiff for exposure to computer screens;
(ii) the medical evidence as to the restrictions which the plaintiff faces in bending and lifting, sitting and standing;
(iii) the plaintiff’s need to rest by lying down for periods of half an hour to an hour daily;
(iv) the plaintiff’s requirement to manage her symptoms by the use of narcotic medication, about which whilst there is no specific evidence on this issue it is common knowledge that such medication blunts cognitive function;
I find the opinions expressed to the effect that the plaintiff has lost her capacity for work within workplaces in the open employment market, to be compelling. In reality I am satisfied that the combined effect of:
a) the plaintiff’s dependence on medication and regular rest periods;
b) the combined effect of plaintiff’s epilepsy, the injury to her right knee and the injury to her back, reducing as they do:
· the plaintiff’s tolerance for general activity and stamina; and
· the plaintiff’s suitability for work involving her exposure to a computer screen;
are such that they render the plaintiff unfit for any of the employment activity as identified for her by the defendant, or for that matter employment generally in the open workforce.
69 For these reasons I am satisfied that the plaintiff is entitled to the relief sought in this instance.
70 I will hear the parties as to the precise form of the orders to be made in this instance and also upon the issue as to costs.
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