Blake v VIP Plastic Packaging P/L
[2009] VCC 1348
•7 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNEMELBOURNE
CIVIL DIVISION
Case No. CI-08-05689
| THE QUEENJamilah Blake | Plaintiff |
| V | |
| VIP Plastic Packaging Pty Ltd | Defendant |
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| JUDGE: | His Honour Judge Coish |
| WHERE HELD: | MelbourneMelbourne |
| DATE OF HEARING: | Friday 2 October - Tuesday 6 October 2009 |
| DATE OF JUDGMENT: | 7 October 2009 |
| CASE MAY BE CITED AS: | Blake v. VIP Plastic Packaging P/L |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1348 |
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I.R. Fehring with Mr B.A. Hutchison | |
| For the Defendant | Mr P.B. Jens with Ms F. Ryan |
DRAFT
HIS HONOUR:
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 in respect of injury to the neck that the plaintiff alleges occurred in the course of employment in or about 2005. The plaintiff alleges that the neck injury involving the aggravation and acceleration of degenerative changes in the cervical spine and disc injury is a serious injury within the meaning of paragraph (a) of the definition of serious injury.
2 Although the plaintiff also relied on psychiatrist injury, paragraph (c) of the definition of serious injury in the particulars of injury, no submissions were made in support of that application. The relevant body functions in which there has been impairment or loss are the neck and left arm. The application is in respect of both pain and suffering and loss of earning capacity. The defendant denies that the plaintiff has a serious injury as defined. The onus of proof is on the plaintiff.
3 I have had regard to s.134AB(38)(h) which provides:
"The psychological or psychiatric consequences of a physical
injury are to be taken into account only for the purposes of
paragraph (c) of the definition of serious injury and not
otherwise."
I am familiar with and have had regard to the series of recent Court of Appeal decisions on s.134AB 92005) 14 VR 622 commencing with Barwon Spinners Pty Ltd & Anor v. Podolak.
4 Only the plaintiff gave evidence. The plaintiff's court book containing documentation in respect of her injury and compensation claim and many medical reports was tendered on her behalf. Portions of the defendant's court book containing claim forms and medical reports were tendered on its behalf.
5 The plaintiff is 62 years of age having been born on 18 May 1947. She is
DRAFTmarried with two adult children. The plaintiff was born in Malaysia. She was educated until she was 15 years of age. The plaintiff first came to Australia in 1971. She returned to Malaysia in 1976. She emigrated to Australia in 1979 and has remained in this country since that time. She has worked in a factory, as a childcare worker and as a process worker. The plaintiff was employed by the defendant as a process worker for approximately 20 years. She performed repetitive process work on a production line, usually working from 3 p.m. to 11 p.m. five days per week.
6 In 1999 the plaintiff had a right arm injury. She was on restricted duties for various periods. She had an operation on her right elbow in January 2003. The plaintiff was off work for six months following this surgery then returned to normal duties.
7 The plaintiff began to develop neck and left arm symptoms in mid-2005. She had been working performing highly repetitive work on the production line. She saw her GP, Dr Mack, and was referred to many specialists. After suffering the neck injury the plaintiff was unable to continue with her full-time normal work. She received many return to work plans and made a number of attempts at working on alternate duties. The plaintiff was forced to cease work in February 2007 as a result of her neck injury. In her affidavit in support of this application she deposed that she has not been able to work since February 2007 because of her neck injury. She described her symptoms as including pain which spreads from the neck into the left shoulder and arm, disturbed sleep and headaches.
8 The plaintiff is restricted in the activities she can perform. She has difficulty maintaining her home; she is unable to drive a motor vehicle for more than 20 to 30 minutes; she is restricted in her ability to work in the garden; she cannot knit; she no longer goes dancing with her husband; she cannot sit with her neck in a fixed position, therefore it is difficult for her to read or watch films.
DRAFT
9 The plaintiff described her inability to work in these terms: "I don't believe I could carry out my old duties with the defendant even on a part-time basis as the work is too repetitive and heavy. I don't believe I have any capacity for employment because I have only ever done work which requires physical strength and use of your arms and that is now very difficult, if not impossible."
10 The plaintiff was cross-examined extensively about her social, recreational and domestic activities and in particular the effect her 1999 arm injury had upon those activities. In cross-examination it emerged that the plaintiff first injured her arm in 1999 and then had ongoing problems until a successful operation in January 2003. During that period she had been on light duties, having received light duties medical certificates from her GP, Dr Mack. The plaintiff said she made a complete recovery from the right arm injury after surgery.
11 The plaintiff said she planned to retire at 65 years of age. She did not recall discussing retirement at 60 years of age with Dr Clayton Thomas, one of her treating specialists.
12 The plaintiff's daily activities include attending a gym at Hoppers Crossing for exercise for her neck four days per week and she undergoes physiotherapy, Tai Chi and Pilates on a regular basis.
13 When cross-examined about a history provided to the psychologist R. Wilks in August 2002, that following her 1999 arm injury the plaintiff had ceased doing heavy housework, knitting and most gardening and was only able to drive for up to 15 minutes, the plaintiff denied providing such history. However she later said she could not recall providing this history.
14 The plaintiff was cross-examined about her daily activities. She agreed that in addition to her outings to the gym and for treatment she goes shopping once or twice a week and window shopping. She is not able to watch television as she has to keep her neck moving. She only drives her motor vehicle for short
DRAFT
distances. The plaintiff has been to Malaysia two times since stopping work to see her mother. She travelled with her daughter. She also flew to Perth to visit her mother-in-law who was unwell. The plaintiff no longer travels to the city to have lunch with friends as she did prior to suffering injury to her neck. The plaintiff does not socialise as much as she did before suffering this neck injury however she has meals on occasions at her son's home in Richmond and at her daughter's home. In re-examination the plaintiff said she did not do much in terms of her general activities after her right arm injury and surgery.
15 The plaintiff's treating general practitioner, Dr Mack, initially diagnosed the plaintiff as suffering left paracervical spinal dysfunction. The plaintiff's original symptoms were neck and left upper arm pain with paresthesia and referred pain to the left fingers. It is clear from Dr Mack's letters to the VWA agent that he was familiar with the plaintiff's duties. In a letter dated 21 August 2006 he expressed the opinion that the plaintiff could not have suffered these symptoms of pain and dysfunction had she not been engaged in the type of process work she was performing for the defendant.
16 Dr Mack referred to the plaintiff to a number of specialists. The plaintiff saw Dr Frank Laska, rheumatologist, on 11 July 2006; Dr Clayton Thomas, pain management and rehabilitation specialist, on 14 February 2007 and on occasions throughout 2007; Dr Richard Travers, rheumatologist, on 20 August 2007; Dr Michael Poon, neurologist, on 21 September 2007 and Mr Patrick Lo, neurosurgeon, on 23 October 2007.
17 Although there have been letters from these specialists to Dr Mack included in the plaintiff's court book and tendered in evidence I have placed little weight on this material as it does not specifically address the medico-legal issues in this proceeding. None of these specialists have provided medical reports and none have been called to give evidence. In these circumstances I am reluctant to place much weight on the opinions of these doctors particularly as
DRAFT
the overwhelming weight of opinions from the medico-legal consultants engaged by each side is that the plaintiff has suffered compensable injury to the cervical spine and there is permanent impairment resulting from such injury. The area in dispute amongst the medico-legal consultants is the extent of that impairment. Unfortunately, there is no up-to-date opinion from Dr Mack on the plaintiff's capacity for work.
18 I have used the expression "overwhelming weight of opinions" because Dr Chris Baker, who examined the plaintiff at the request of the defendant, accepted the plaintiff suffered compensable injury but he has concluded that there is no longer a physical basis for her complaints. He is the only medico- legal consultant expressing such an opinion.
19 It is appropriate that I briefly summarise the opinions expressed by the medico-legal consultants who have examined the plaintiff. Mr Kenneth Brearley saw the plaintiff on 23 July 2008 at the request of her solicitors and in his report dated 23 July 2008 he expressed the following opinions: "Jamilah Blake suffered a definite physical injury in the latter years of her employment with Visy Packaging. This was in the nature of damage to the C6-7 intervertebral disc. The MRI has shown clear evidence of protrusion of this particular disc. All other discs appear normal. The injury to her neck has occurred because of the heavy repetitive nature of her work which has imposed significant strain on the cervical spine. The strain has been borne by the C6-7 disc which shows evidence of intradiscal rupture and protrusion. She does suffer from a physical impairment, namely a limitation in movements of the neck, particularly extension - that is, looking upwards - and flexion; rotation to the left is also reduced. This impairment is a consequence of the disc injury. She has also suffered disability consequential to the injury. She has difficulty in driving and doing any tasks which require looking upwards or repetitive movements to the neck. The physical impairment is permanent, there is no likelihood of any improvement at all in the foreseeable future. Her
DRAFT
disability also is permanent. She does have continual discomfort or pain in the neck; she also has pain in the upper part of the left arm when she has pain. She is quite incapable of doing the work in which she was engaged when she injured her neck; she will never be able to do such work in the future, nor will she be able to do any manual labour."
20 Mr Russell Miller, orthopaedic surgeon, in a report dated 24 September 2009 for the plaintiff's solicitors expresses these opinions: "This lady suffered an injury to the cervical spine with a disc injury at the C6-7 level. She has had a poor response to conservative measures. I do not believe she would be helped by surgical intervention. I believe the prognosis is only fair to poor. It is likely that her work over a prolonged period of time has contributed to the evolution of the neck and shoulder problems and accounts for her current clinical status. She is not fit for pre-injury work or work that involves repetitive arm actions, use of the arms in the above shoulder position or lifting of weights more than two kilograms. She could not return to her pre-injury occupation. Return to work is not envisaged due to her work-related injury."
21 Dr Robyn Horsley, in a report dated 24 September 2009 for the plaintiff's solicitors expresses these opinions: "I believe that the events as described and her clinical presentation are consistent. I believe that work has been a significant contributory factor. I believe that she has aggravated the underlying pre-existing degenerative process of the cervical spine with the heavy and repetitive nature of her work at Visy over a prolonged period of time. I believe that the following work restrictions apply: Avoidance of repetitive overreaching; avoidance of repetitive pushing and pulling; avoidance of repetitive above shoulder activities; avoidance of lifting items greater than ten to 12 kilograms on an occasional basis; avoidance of lifting items up to five to eight kilograms on a repetitive basis; avoidance of prolonged static forward flexion of the cervical spine; avoidance of prolonged extension of the cervical spine; avoidance of repetitive rotation of the cervical
DRAFT
spine, particularly to the right. Mrs Blake was working four to five hours per day, five days per week in modified duties at Visy for nearly 12 months before suitable duties were withdrawn and she was terminated 12 months later. She is not currently job-seeking. She is 62 years of age, her transferable skills are limited, she has poor literacy skills in English although her verbal English skills are good. Her physical restrictions impact upon her competitiveness in an open and competitive marketplace; her age is also a barrier. Her capacity for work, putting aside those barriers, appears to be part-time four to five hours per day, five days per week. Her opportunities for redeployment are restricted and limited. I believe that she has realistically come to the end of her working life. She has ongoing physical impairment and disability related to the cervical spine, this is permanent and will last into the foreseeable future." Dr Horsley was of the opinion that realistically the plaintiff had come to the end of her working life and she was not a candidate for retraining or redeployment.
22 Dr Chris Baker provided a series of reports for the defendant. In his most recent report dated 14 May 2007 he expresses the following opinions: "Mrs Blake's condition is deteriorating, I continue to hold the view that her level of incapacity is out of proportion to the disc bulging at the C6-7 level. I consider that there is a significant non-physical component and she is becoming increasingly depressed since I last assessed her. I believe that the appropriate management plan would be participating in a multidisciplinary pain management program and it is important that she organises herself so that she can get to and from the appropriate clinic while she participates in this program."
23 In answer to a series of questions, Dr Baker provides the following comments: "8.01, The contributing factors to her current condition relate to her work activities and to her perception about the way she has been treated by the employer and underlying degenerative changes in the cervical spine; 8.02 I consider changes in the cervical spine are relatively minor and her incapacity
DRAFT
is greater than would be expected and I consider that there is a significant non-physical component to her presentation; 8.03 I consider the majority of her incapacity relates to non-physical factors which are not directly related to her physical injury; 8.04 Noting her continuing complaints of pain and incapacity I believe it would be inappropriate for her to undertake unrestricted pre-injury duties, however I consider she does have a capacity for undertaking suitable employment from a physical perspective."
24 Professor Balla, in a report for the defendant's solicitors dated 24 February 2008 expresses the following opinions: "(1) Mrs Blake has pain in the left side of her head and neck and upper part of the left arm. It is my opinion this relates to intervertebral joint injury in the neck; (2) I believe that the condition relates to her employment as she had to do repetitive lifting and turning of the head for a number of years; (3) I have no reason to believe that the injury would have developed if she had not been employed in the manner she described; (4) I am not aware of hereditary risks; (5) I am not aware of anything in the worker's lifestyle that contributes to this; (6) From the purely physical point of view she could return to employment where she performed light duties and did not involve repetitive turning of the head and which did not involve heavy lifting beyond two kilograms; (7) I believe that this limitation is going to go on indefinitely and her condition is permanent; (8) I would regard her condition as being stabilised.; (9) The outlook is poor and complicated by an intercurrent problem with vertigo, which is in my opinion, not employment related."
25 Mr Michael Dooley, in a report dated March 13 2009, for the defendant's solicitors expresses these opinions: "Mrs Blake suffers from degenerative disc disease of the cervical spine. I believe that during the course of her work, that is lifting, manoeuvring, packaging et cetera, she has aggravated this underlying degenerative condition. I believe that this aggravation would account for neck pain, occipital pain and intermittent left upper limb pain.
DRAFT
Clinically there is no evidence of objective neurological deficit affecting the left upper limb. Radiologically there is no evidence of nerve root entrapment or of major disc prolapse."
26 In answer to specific questions, Mr Dooley commented: "(2) Based on the history presented to me, I believe that Mrs Blake's employment has been a significant contributing factor to the aggravation of underlying degenerative disc disease of the cervical spine, as outlined above; (3) Currently Mrs Blake would be unfit to carry out heavy physical work or work at and above shoulder level. From the orthopaedic viewpoint, she would be capable of carrying out light duties type work."
27 It was submitted on behalf of the defendant that the nature of the plaintiff's neck injury was controversial, it was impossible to diagnose and accordingly I ought not be satisfied that the plaintiff had suffered compensable injury. Having regard to the overwhelming weight of medical evidence presented by these medico-legal consultants engaged by both sides I have no difficulty in rejecting this submission.
28 I am satisfied that the plaintiff's employment as a process worker for the defendant caused the aggravation of degenerative changes and disc injury in the cervical spine in or about 2005. I reject the opinion of Dr Baker that there is no physical basis for the plaintiff's ongoing complaints as this opinion is so out of step with the weight of medical evidence I have described.
29 I am satisfied that this compensable injury has resulted in permanent impairment or loss of body function of the neck. This leaves for determination whether that permanent impairment or loss of body function is "serious" with respect to either pain or suffering or loss of earning capacity.
30 Mr Jens submitted on behalf of the defendant that the plaintiff's credit was adversely affected by her evidence in respect of the 1999 arm injury. Further
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he submitted that having regard to the effects of this 1999 injury upon the plaintiff the consequences of the 2005 neck injury were certainly not "very considerable."
31 Mr Fehring however submitted on behalf of the plaintiff that these submissions overlooked the critical evidence in the case which was that the plaintiff has been and remains totally incapacitated for work as a result of her 2005 neck injury. Before this injury she was working full-time on repetitive process work. However since suffering this injury she has been unable to remain in employment. Mr Fehring submitted that in the course of a wide-ranging cross- examination the plaintiff was never challenged on her evidence that she was unable to work as a result of her neck injury. Mr Fehring relied upon the recent discussion by the Court of Appeal of the rule in Browne v. Dunn in
Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v.
Mohamed Abdulle (2009) V.S.C.A. 170.
32 I have set out the passage from the plaintiff's affidavit in which she describes her total inability to work. The plaintiff was questioned extensively about her social, recreational and domestic activities, both in 2002 after her arm injury and in recent times following her neck injury. However she was never cross- examined about her capacity for work. In my opinion this was a significant omission as this was a critical issue in dispute. There was a clear divergence of opinion amongst the medico-legal consultants about the plaintiff's capacity for work although there was no suggestion that she could return to her pre- injury employment.
33 The defendant's submission that the consequences of this injury were not "very considerable" was clearly based upon an acceptance of those medical opinions that the plaintiff had a capacity for full-time light work. This was a matter upon which the plaintiff gave evidence. Her evidence on the nature and extent of her symptoms and her capacity for work was, in my opinion, very important, especially as the plaintiff had remained at work from mid-2005
DRAFT
until February 2007 and she had attempted to engage in alternative duties provided in return to work plans. By not challenging the plaintiff on the issue of her capacity for work I was denied the opportunity of making an assessment of the plaintiff in relation to that issue.
34 My overall impression of the plaintiff was that she was a reasonably straightforward witness. She was very quietly spoken and reserved in manner. There was no suggestion of exaggeration or embellishment of symptoms. While some of her evidence on the effect of the 1999 injury and various histories to doctors in 2002 was troublesome, I do not consider it to have adversely affected her credibility in respect of the most important issue in this case, the nature and extent of the consequences of the compensable neck injury, particularly with respect to the plaintiff's capacity for employment.
35 I accept the plaintiff's evidence on the nature and extent of that injury. I find that the plaintiff has been left with chronic neck pain and discomfort which extends into the left arm. I accept the plaintiff's evidence that having attempted to perform alternative duties from mid-2005 to February 2007, she has been and remains totally incapacitated for work.
36 Mr Miller was of the opinion that a return to work was not envisaged due to the plaintiff's work-related injury. Dr Horsley was of the opinion that realistically the plaintiff had come to the end of her working life. I prefer and accept these opinions they are consistent with the plaintiff's evidence which I have accepted.
37 As the compensable injury involves an aggravation of a pre-existing condition, degenerative changes in the cervical spine, I have applied the principles enunciated in Petkovski v. Galletti (1994), 1 V.R. 436. I have taken into account the plaintiff's condition before and after compensable injury. I have, in accordance with Petkovski v. Galletti, sought to identify the injury caused during 2005 and I have analysed the extent of impairment of the body function
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of the neck before and after the relevant injury.
38 The plaintiff had been working full-time on repetitive process work prior to suffering this neck injury. I find that as a result of the compensable injury to the neck, the plaintiff's earning capacity has been totally and permanently lost.
39 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
40 The plaintiff attempted to return to work over a relatively long period before ultimately ceasing work in February 2007. She has participated fully in all medical treatment recommended for her. I accept Dr Horsley's opinion that the plaintiff is not a candidate for retraining or redeployment. I find that the plaintiff has discharged the onus imposed upon her pursuant to s.134AB(19)(b).
41 I am satisfied the plaintiff has established the requisite loss of earning capacity pursuant to s.134AB(38)(b), (c), (e), (f) and (g) as I am satisfied there has been a total and permanent loss of her earning capacity as a result of her neck injury.
42 It is agreed that if the plaintiff has a serious injury with respect to loss of earning capacity she is entitled to bring proceedings for the recovery of damages both in respect of pain and suffering and loss of earning capacity. Accordingly, I grant leave to the plaintiff to bring proceedings for the recovery of damages for pain and suffering and loss of earning capacity.
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