Black v Ambulance Service Vic - Metropolitan Region
[2010] VCC 798
•23 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05839
| JAMES BLACK | Plaintiff |
| v | |
| AMBULANCE SERVICE VICTORIA - METROPOLITAN REGION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 and 17 June 2010 |
| DATE OF JUDGMENT: | 23 June 2010 |
| CASE MAY BE CITED AS: | Black v Ambulance Service Vic - Metropolitan Region |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0798 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act – Injury to lower spine in course of employment – Whether plaintiff satisfies the provisions of s.134AB(38)(e) and (f).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Lennon Mazzeo |
| For the Defendant | Mr G A Lewis SC with | Thomson Playford Cutlers |
| Ms C Melis | ||
| HIS HONOUR: |
1 There is no issue in this application that the plaintiff suffered injury to his lower spine on 22 June 2006 in the course of his employment with the defendant, working as an ambulance officer.
2 The issue of real significance is whether or not the plaintiff has suffered a loss of earning capacity of 40 per cent or more in accordance with the test prescribed in s.134AB(38)(e) and (f) of the Accident Compensation Act 1985 (“the Act”).
3 Mr McCredie, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lower spine. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 While not conceding that the plaintiff’s injury satisfied the test in respect of pain and suffering, Mr Lewis, on behalf of the defendant, did not argue the point with any vigour. For reasons which I shall subsequently give, I am satisfied that the plaintiff’s injury to the lower spine is a “serious injury” in relation to pain and suffering, as defined in the Act.
5 In order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his “without injury earnings” in the three-year period before and after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
6 The plaintiff was the only witness to be called to give evidence and be cross- examined. In addition, affidavits of the plaintiff, medical reports, radiological reports, and vocational assessments were tendered into evidence.
Relevant Background
7 The plaintiff is now thirty-five years of age and lives with his wife. He completed Year 11 and then left school and worked in various areas of employment, including for a period of approximately four years with the Army Reserve. He returned to school to complete Year 12 in 1996 and then worked for several years in manual employment.
8 In 1999, he commenced to study a Certificate IV in Health (Nursing). Halfway through this course, he transferred to a Bachelor of Health Science (Paramedic) course. In January 2002, he joined the Rural Ambulance Service as a paramedic. He completed his degree in 2004, and in 2005 transferred to Melbourne to work with the Metropolitan Ambulance Service as an Advanced Life Support Paramedic.
9 Aside from several minor injuries, including some episodes of back strain, he was healthy prior to 22 June 2006.
10 He was physically active and played 18 holes of golf each week, enjoyed a range of social activities, including playing football, cricket and running. Of significance was that he had worked hard to achieve his status as an ambulance officer, enjoyed the work and saw his future in that service.
The Injury and its Consequences
11 I shall not detail in any significant depth the injury which the plaintiff suffered on 22 June 2006, the treatment received and all of the consequences suffered by the plaintiff as a result. These matters were not the subject of any significant cross-examination or challenge by the defendant.
12 The plaintiff suffered injury to his lower spine on 22 June 2006 when he was assisting in the treatment of a patient during an ambulance journey. At the time, he was required to crouch behind the patient and apply a particular type of ventilation device to the patient’s mouth. At the end of the journey he felt some tightness and pain in his lower back. Later that day the pain increased significantly and he found “he could hardly walk”[1]. The pain was in his lower back, and with referred pain into his right leg.
[1] Court Book (“CB”) 10
13 The next day he went to see his general practitioner, Dr Andrews. A CT scan was organised[2] which showed bulging at the L2-L3, L3-L4 and L4-L5 levels. He has remained under the treatment of Dr Andrews to the present time.
[2] CB 24-25
14 About a month later, he was referred to Mr D’Urso, neurosurgeon, as the pain in his back and right leg persisted. An MRI scan was undertaken on 20 September 2006[3] which confirmed disc protrusions at L2-3, annular tears at L3-4 and L4-5 and a broad-based disc protrusion at L5-S1, compressing the traversing right S1 nerve root. At that time, Mr D’Urso advised the plaintiff that he would have to give up his work as a paramedic ambulance driver because of the requirement for heavy lifting and repetitive bending and twisting.
[3] CB 26
15 In 2007, the plaintiff commenced a Graduate Diploma in Emergency Management at Victoria University. He hoped this would broaden his employment opportunities with the defendant[4]. He returned to part-time light duties in January 2007 with the defendant, undertaking principally administrative tasks. He worked at various branches, preferring the Hallam branch which was closer to his home, and thus required less driving. By mid- 2007, he was working 22 hours a week with the defendant in restricted duties, but because of increasing pain and discomfort in the back and right leg, he eventually left employment in August 2007.
[4] CB 11
16 He has continued his Graduate Diploma in Emergency Management through to the present time and expects to complete the Diploma in the near future with two subjects remaining.
17 He received conservative treatment, including physiotherapy and massage therapy. A further MRI scan of October 2007[5] indicated some possible progression of disc protrusion at L2-3, but no other changes from the previous report.
[5] CB 27-28
18 In 2007, Mr D’Urso raised the possibility of surgery, and although not carried out, Mr D’Urso considered that the plaintiff “will require surgery for his lumbar spine at some stage”.[6]
[6] CB 54
19 The plaintiff was referred for a second opinion to Mr Carey, orthopaedic surgeon, in November 2007. He described the plaintiff’s lower spine as showing:
“…a huge L5-S1 disc sequestration. There was a small partial
sequestration at L2-L3.”
20 Mr Carey did not consider an operation would be useful.
21 The plaintiff was referred to another orthopaedic surgeon, Mr Peter Wilde, in 2008. Mr Wilde also did not recommend surgery because of the unpredictable outcome. He suggested to the plaintiff that he ought look at an alternative career. Having considered the MRI scans, Mr Wilde described the plaintiff’s lumbar back condition as:
“There is desiccation with a left postero-lateral prolapse at L2-3. It is displacing but not compressing the cauda equina and emerging left L3 nerve root. At L4-5 there is a significant high intensity zone posteriorly with no prolapse or neural compression lesion. At the lumbo-sacral level there is a desiccated disc with a small paracentral disc protrusion displacing the S1 nerve root.”
22 The plaintiff’s main complaint to Mr Wilde was back rather than leg pain and he thus did not consider surgical intervention would produce any significant relief.
23 In mid-2008, the plaintiff completed a Certificate IV in Workplace Training and Assessment over a period of eleven weeks.
24 In January 2009, the plaintiff was granted a Disability Pension under his superannuation scheme on the basis that he could not return to work as a paramedic ambulance driver. Also in 2009, he saw an advertisement on the Monash University, Frankston, website for part-time sessional lecturing. He was granted the position and lectures generally in first aid training for ambulance officers in the Nursing and Health Services area. The lecturing work has continued from April 2009 to the present time and the plaintiff intends to continue the work into the future. The lecturing work is divided into “sessions” comprising one 8-hour day. At the outset, the plaintiff taught one day per month, but this has increased and he now, during the course of the university semester, teaches approximately two sessions per week. At the outset, he had to do additional preparation for the lectures, but with increased experience, now does much less. The sessions comprise both lectures and tutorials. In addition, there is marking of exam papers towards the end of the semester.
25 According to pay records tendered into evidence[7], the plaintiff has worked varying hours over the last fourteen months, in the early days sometimes only several hours per week, and over the period from January to May of this year, has averaged 11.5 hours per week. Of significance is that this calculation takes into account only work undertaken during the university semester.
[7] CB 125-146
26 The plaintiff has been offered up to three sessions per week in lecturing and tutorials[8], but states that he is unable to accept three per week because of back pain. Even two sessions are difficult, particularly if undertaken consecutively. He finds the lecturing strenuous, particularly if he stands for any period of time, conducts demonstrations and lifts and moves equipment. In all, he states that he is able to do two sessions per week at best, providing they are not on consecutive days.
[8] See affidavit of Brett Williams, CB 18-21
27 The plaintiff states that it was his intention to train to become a MICA paramedic which would have meant the prospect of a higher wage.
28 The parties accept, that for the purpose of the first part of the formula prescribed by s.134AB(38)(f), that the plaintiff’s “without injury earnings” at the time of injury was $71,000 gross per annum.
29 In addition to the university lecturing at the Monash Frankston Campus, the plaintiff from time to time attends the Alfred Hospital for lecturing in the same field. This has occurred on two or three occasions this year. He does not take up more work at the Alfred Hospital because of the difficulty with pain to his lower spine when driving.
30 At the present time, the plaintiff receives conservative treatment principally through his general practitioner, Dr Andrews. He takes Voltaren, an anti- inflammatory, generally each day, although he has periods without taking the medication because of side-effects to his stomach. He takes Endep for pain relief, one tablet each night, to assist with sleep, and Panadol from time to time. He is no longer having physiotherapy, but has massage therapy and undertakes an extensive exercise regime as suggested by his treating practitioners. This requires not only exercises for core strength, but also daily walking.
31 He continues to suffer significant pain in his lower back, with pain into his right leg, although this is now less prominent. Generally, his social, recreational and sporting activities are significantly curtailed. He still drives, but driving any distance is difficult. He has jogged from time to time but that causes the onset of pain. He is no longer able to play golf. His sleep is affected. He occasionally wears a back brace. The loss of his career with the Ambulance Service has been a significant blow to him.
32 The challenge by Mr Lewis through cross-examination to the plaintiff’s case was centred principally upon his work capacity. The plaintiff accepted[9] that when he completes his Graduate Diploma there would be part-time duties he could undertake in the Ambulance Service, possibly as a junior staffer, but not as a radio dispatcher. The plaintiff stated that he would need to move around every five minutes or so[10].
[9] T 12
[10] T 13
33 The plaintiff accepted that his current rate of pay was $52.07 per hour, with tutorial work at $34.71 per hour[11]. On occasions, he accepted that he worked 15 hours per week, even 20 hours per week in one week.
[11] T 15
34 The plaintiff agreed that he had a number of transferable skills as a result of his qualifications and work experience with the Ambulance Service. It was put to him that there were four alternative occupations suggested as suitable by the vocational assessors, as follows:
• vocational educational teacher;
• Occupational Health and Safety officer; • case manager in occupational rehabilitation; • Emergency Services manager.
35 The plaintiff accepted that these alternatives were not unreasonable.[12]
[12] T 20
36 It was further suggested that if the work was available, he could possibly manage a lecture on Monday, a tutorial or marking of papers on Wednesday, and another lecture on a Friday[13]. He was asked:
[13] T 23
“Q: But in a perfect world if that sort of work frame were available you
would be thinking you could give it a go?---A: In a perfect world I would probably give it a go, yes.”
37 The plaintiff confirmed that the lecturing year comprised two 13-week semesters, a total of 26 weeks[14]. He said that when he had worked more than a 15-hour week, he did not cope very well.
[14] T 23
Medical Opinions
38 I have read all the various medical reports tendered into evidence. For the purpose of this judgment, I shall confine reference to the medical opinions to the various doctors’ views as to the plaintiff’s work capacity. In his reports of 31 December 2008 and 23 September 2009[15], the plaintiff’s treating general practitioner, Dr Andrews, said:
“He will not work again as an ambulance officer but is able to do light
duties employment on very restricted hours.”
[15] CB 32-34
39 He referred to restrictions to be placed upon the plaintiff’s employment and that any employment would be only part-time. More recently,[16] he said the plaintiff was fit for office type duties only up to 15 hours per week. He considered the disability permanent.
[16] CB 34
40 Dr Castle, occupational physician, in his report of 10 November 2008,[17] considered the plaintiff was not fit for normal duties but was fit for modified duties working a maximum of 10 to 15 hours per week with limited driving, where he could sit or stand as necessary and avoid repeated bending or stooping. He considered the plaintiff well-motivated to find work. He considered the plaintiff’s condition had stabilised and it was unlikely he would substantially recover. He said there may be some gradual deterioration.
[17] CB 39-40
41 Dr Jennifer Harmer, rheumatologist, in a report relating to the plaintiff’s application for a Superannuation Pension, did not think the plaintiff was fit for normal duties and would never be fit for work as an ambulance paramedic. She noted difficulty with activities involving prolonged sitting, driving and lifting. She noted the plaintiff was only able to study 10 to 15 hours per week.
42 Mr D’Urso, treating neurosurgeon, noted[18] that the plaintiff could not return to work as a paramedic. He also thought that anything which required protracted periods of time sitting at a desk would be inappropriate. Any work would require the plaintiff to be able to move freely and to avoid sitting or standing for more than an hour at a time.
[18] CB 54
43 Mr Hugh Weaver, orthopaedic specialist, reported at the request of the defendant in 2006. He considered the vocational assessment prepared by Work Solutions suggesting a number of alternative occupations[19]. He considered that those occupations were “theoretically appropriate for Mr Black to attempt”.
[19] CB 79-80
44 The plaintiff relies upon the opinion of Mr Paul Kierce, orthopaedic surgeon, who saw the plaintiff on behalf of the defendant most recently in October 2009. He stated[20] that the plaintiff did have the capacity for sedentary work of 15 hours per week providing that the work did not involve prolonged bending or lifting of more than 15 kilograms. He considered the various alternative occupations suggested as being appropriate, providing the plaintiff was not required to work more than 15 hours per week.
[20] CB 101
45 The only medical practitioner to suggest the plaintiff had the capacity for full- time employment was Dr Philip Mutton, occupational physician, who examined the plaintiff in June 2007[21]. He accepted that the plaintiff was not fit for pre-injury duties but was capable of the occupations suggested in the Work Solutions report, and on a full-time basis.
[21] CB 108
46 In considering the various medical opinions, I prefer the opinions of the bulk of the practitioners, particularly the plaintiff’s treating practitioners, that the plaintiff has a capacity for employment of approximately 15 hours per week providing that that employment requires the plaintiff not to undertake any heavy lifting, bending nor prolonged sitting or standing.
Credibility of the Plaintiff
47 I found the plaintiff an honest and credible witness. He made concessions in cross-examination I would expect of an honest witness. Further, the plaintiff has taken substantial steps in re-training and has, in my view, made every reasonable endeavour to find a new area of employment given his former duties as an ambulance paramedic are no longer appropriate. This further enhances his credibility.
48 As a consequence, I accept the plaintiff’s complaints of pain and restriction and accept that his lower spinal injury has had a significant impact on his recreational, social and domestic activities. I further accept the history that he has provided to the doctors who have examined and treated him.
Submissions on behalf of the Defendant
49 Given the plaintiff’s “without injury earnings” were accepted at $71,000.00 per annum, Mr Lewis calculated that if the Court found the plaintiff had the capacity to earn more than $819.00 gross per week, then that part of his application relating to pecuniary loss damages must fail. That sum represented 60 per cent of the “without injury earnings”.
50 Mr Lewis submitted that the Act required an assessment of the plaintiff’s capacity for suitable employment, rather than time actually worked, or wages actually earned. He submitted that the plaintiff had the capacity to work at least two sessions per week and in a “perfect world” the plaintiff had accepted that he could work three sessions, on Monday, Wednesday and Friday.[22] Calculating the number of hours worked per week by the hourly rate of $52.07 per hour, meant that the plaintiff exceeded the 60 per cent requirement of the section when he achieved 15.73 hours per week. Given what he called the plaintiff’s admission that he was able to do possibly three sessions a week, a total of 24 hours, his claim for pecuniary loss damages must fail. This, said Mr Lewis, was reinforced by the fact that on occasions this year the plaintiff had worked up to 20 hours per week.
[22] T 23
Conclusions
51 The formula prescribed by s.134AB(38)(f) requires a careful assessment of the plaintiff’s earning capacity by comparing “the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is … capable of earning in suitable employment as at” this date with the agreed sum of $71,000. Thus the section speaks of work capacity rather than actual earnings.[23]
[23] See Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33
52 There are a number of different means by which the plaintiff’s current work capacity may be assessed. As stated, I accept the various medical opinions that he has a capacity for approximately 15 hours per week in light modified duties. Presuming that such duties could be undertaken in the various alternative forms of employment postulated by Work Solutions in its report of 14 October 2008,[24] those areas of employment are said to return the following gross weekly earnings:
[24] CB 117
• Training Officer $1,230.00 • Vocational Education Teacher $1,000.00 • Occupational Health & Safety Officer $1,050.00
• Management Consultant $1,200.00 • Radio dispatcher $1,000.00 53 Accepting these jobs are for a 38-hour week, means the plaintiff would, in relation to the highest earning position, training officer, have the capacity to earn $486.00 gross per week, thus well below 60 per cent of “without injury earnings”.
54 Alternatively, consideration may be given to the plaintiff’s current earnings. The plaintiff’s gross earnings over recent years do not generally reflect his earnings, as he only commenced lecturing in April 2009. Accepting the plaintiff could work two sessions, or 16 hours per week at a rate of $52.07 per hour, translates to a gross annual income of $21,661.00 gross per year, or $416.56 gross per week. It is important to note that this calculation is based upon work for the university year of 26 weeks. Again, the calculation falls well below 60 per cent of “without injury earnings”.
55 Finally, as submitted by Mr Lewis, accepting the plaintiff was able to work 16 hours or two sessions per week, at $52.07 per hour, and extrapolate that out over 52 weeks, the plaintiff had the capacity to receive $833.00 gross per week, which sum exceeds 60 per cent of “without injury earnings”.
56 In my view, this calculation as suggested by Mr Lewis does not appropriately reflect the plaintiff’s work capacity. Firstly, the legislation requires work capacity to be assessed by comparing a worker’s gross income, as expressed at an annual rate. There is force in Mr McCredie’s argument that the hourly rate of $52.07 which the plaintiff receives for lecturing reflects not an hourly rate for 52 weeks, but rather an hourly rate for 26 weeks. The hourly rate of $52.07 is thus artificial and no true reflection of the plaintiff’s capacity to earn for 52 weeks of the year. A more appropriate calculation is to consider the plaintiff’s current gross yearly wage which is in the order of $21,000 per annum. That more accurately reflects current work capacity.
57 Secondly, if one considers the gross weekly salary paid in respect of the suggested areas of alternative employment, the plaintiff could earn that proportion of the approximately $1,200 gross per week that his work capacity of 15 hours bears to a full 38 hour week.
58 Taking these matters into account, I am satisfied that the plaintiff’s work capacity is significantly less than 60 per cent of “without injury earnings”. He thus succeeds in satisfying the legislative test.
59 It necessarily follows that the plaintiff also succeeds in relation to the pain and suffering limb of the application.[25]
[25] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
60 I shall make consequent orders.
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