Bourne-Bryant v VWA
[2018] VCC 1254
•10 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00696
| SALLYANN BOURNE-BRYANT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 10 August 2018 | |
DATE OF JUDGMENT: | 10 August 2018 | |
CASE MAY BE CITED AS: | Bourne-Bryant v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1254 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; pecuniary loss
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Tirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell SC with Ms A. Ryan | Zaparas Lawyers |
| For the Defendant | Mr R. Stanley | IDP Lawyers |
HIS HONOUR:
Introduction
1 Sallyann Bourne-Bryant was employed by the Royal District Nursing Service (“RDNS”) as a registered nurse when she was injured whilst attending to a client at his home in Ringwood on 8 November 2013. At that time she was caring for an incomplete quadriplegic patient and suffered injury when using her right arm to catch the patient’s left leg which was about to fall off a bed.
2 At the time of the incident Ms Bourne-Bryant was 49 years of age and had been employed by the RDNS on a full-time basis since September 2010.
3 She came to Australia in 2005 from the United Kingdom where she had taken up nursing later in life after the birth of her children.
4 Following her arrival in Australia she worked initially at the Epworth Eastern Hospital in Box Hill, before doing casual agency work for approximately 18 months. She then returned to the Epworth Eastern from 2007 until she commenced working with the RDNS in 2010.[1]
[1]Exhibit A, p 2-3 [6] to [11]
5 As a result of her incident Ms Bourne-Bryant felt immediate pain in the front right-hand side of her neck. She attended her general practitioner and was put off work and given medication and referred for physiotherapy. Apart from an unsuccessful attempt to return to light work on two occasions, she has not subsequently returned to her pre-injury employment.
6 She was referred by her general practitioner to a number of specialists and ultimately underwent surgery on her cervical spine in July 2015. She subsequently had two hydrodilitation procedures and then arthroscopic surgery on her right shoulder in December 2016.
7 In July 2016 Ms Bourne-Bryant was assisted by the employer’s insurer to complete a course at LaTrobe University known as a “Nurse Immunisation Programme.” After completing this course she managed to obtain employment on a casual basis with the Yarra Ranges Council. She commenced this employment in June 2017 and has continued with it up until the date of trial, save for a period in late 2017 when she returned to the United Kingdom for family reasons.
8 She seeks leave to claim damages for both pecuniary loss and pain and suffering on the basis that the injuries to both her cervical spine and/or her right upper limb constitute a serious injury within the meaning of the definition contained in section 134AB(37) of the Accident Compensation Act 1985 (“the Act”).
9 The application before me relied solely on the serious injury definition contained in paragraph (a), nominating principally the cervical spine as the body function said to be relatively lost or impaired.
10 Mr Purcell SC, who appeared with Ms A. Ryan on behalf of the plaintiff, did not abandon the claim in relation to the right shoulder, but ultimately the focus of the application was directed towards the plaintiff’s injury to her cervical spine and its consequences upon her.
11 Mr Stanley, who appeared on behalf of the defendant, conceded the plaintiff’s claim insofar as it related to leave in respect of pain and suffering damages. The area of dispute focused on the plaintiff’s claim in respect of pecuniary loss. Specifically Mr Stanley indicated that the medical evidence did not support the plaintiff’s claim for leave. Additionally, her limited casual employment could not properly be regarded as a true measure of the plaintiff’s post-injury work capacity.
12 Ms Bourne-Bryant was the only witness required for cross-examination.
The lay evidence
13 Given the limited area in dispute, it is unnecessary to refer to much of the plaintiff’s affidavit material which does not bear on the issue of her pre and post injury capacity for employment. Additionally, given the agreement reached between the parties during the course of the hearing, the defendant is prepared to concede that the plaintiff’s annual income of $84,773 in the financial year ended 30 June 2012[2] is an accurate figure upon which to calculate Ms Bourne‑Bryant’s without injury earning capacity as is required in order to properly consider section 134AB(38)(f)(ii).
[2]Exhibit A, p 153
14 I therefore find the without injury earnings figure to be $1,630.25.
15 There was also little dispute over the current hourly rate being earned by Ms Bourne-Bryant in her role as a casual immunisation nurse. The plaintiff submitted that her actual earnings showed an hourly rate of $63.64, whereas the defendant submitted a slightly higher figure of $64.51 if a somewhat obscure allowance described as a P050 was taken into account.
16 Although the plaintiff’s actual payslips for the period 27 May 2017 to 8 June 2018 were placed in evidence[3] there was no evidence, or indeed agreement between the parties as to what the “P050” appearing in those payslips actually meant. Ultimately it did not impact on the determination of the issues in this case.
[3]Exhibit 2, p 150-169
17 The evidence of Ms Bourne-Bryant concerning her post-injury employment was set out in her third affidavit.[4] She described undertaking the immunisation course and then stated:
[4]Exhibit A, p 17-22
“I am now employed by the Yarra Ranges Council as an immigration (sic) nurse.
My number of hours varies widely, compared to my pre-injury role. The amount of money I also earn varies widely. Prior to my injury, I was earning about $1,300 - $1,400 gross per week.
I am having difficulty working as an immunisation nurse as the role not only involves giving injections but also involves a lot of heavy lifting.
We need to carry a heavy esky full of ice blocks and the immunisation vials. I am not sure of the weight of this item but I have a lot of difficulty carrying it due to my injuries.
I am also required to set up rooms and store away items in the rooms for the immunisation sessions. This involved a lot of lifting of chairs and moving of large items such as tables.
I have a great deal of difficulty undertaking these tasks and after undertaking them I experience a lot of pain in my neck, shoulder and right arm.
I am now very limited in the hours I can work, on some occasions I have worked up to 25 hours in a fortnight however this included a lot of training and meetings.”[5]
[5]Exhibit A, p 19 [13] to 20 [19]
18 When Ms Bourne-Bryant was cross-examined the following matters emerged in relation to this post-injury employment:
· She was naturally keen to return to work but denied that when she started work it was her intention to return to work full-time or near to full-time hours.[6]
[6]Transcript (“T”) 28, Line (“L”) 22-27
· She denied telling a doctor that she intended to work on a near full‑time basis (depending on the availability of the work) and stated that her position at the council was never available full-time or near full-time. She did enjoy the work once she had started:[7]
[7]T 27, L 6-24
“It was great to be back at work after such a long time.”[8]
[8]T 29, L 31 to T 30, L 1
· She denied choosing that re-training program on her own experience and self-assessment stating:
“I based that route of employment due to the vocational assessment done by Nabenet, and that I could – that I felt I could do it. … According to the vocational assessment.”[9]
[9]T 30, L 13-22
· She worked up to 25 hours in one fortnight not each fortnight:
“Only in one fortnight period and that was when I commenced with the Yarra Ranges Council, which included orientation.”[10]
· She described the work in detail referring to loading Eskies with ice and vaccines, picking up equipment and transporting them using a vehicle. Her manager would usually drive and she would accompany him.[11]
· She made reference to little difficulty in actually administering the vaccines, other than the location of the sharps bin which caused some difficulty in using her right arm.[12]
· Ms Bourne-Bryant was not challenged on her evidence that it took her approximately 25 minutes to drive from her home to her workplace.[13]
· The immunisation sessions would be conducted throughout various locations within the council area. She made reference specifically to Mooroolbark, Yarra Junction and Upwey.[14]
· Ms Bourne-Bryant agreed that at least one other immunisation nurse was working both for Yarra Valley and another council, but she was unaware of the number of hours worked for that other council. She agreed that it was upsetting for her that she was restricted in her ability to perform more hours because of her injury.[15]
· Ms Bourne-Bryant had not made any enquiry with any other councils in respect of additional work.
[10]T 30, L 28 to T 31, L 2
[11]T 35, L 20 to T 36, L 30
[12]T 37, L 17
[13]T 37, L 26-27
[14]T 38, L 18-23
[15]T 43, L 2-12
19 Ms Bourne-Bryant was specifically asked about her comfort level and her ability to work. She stated:
“Well, part of my comfort level is the drive there. I chose Yarra Ranges because of the 20, 25 minute drive there. And my comfort level, I believe, would be about ten hours per week. The issues I have is the consecutive days. I have worked consecutive days, but then I might have three or four days off.
So one day might be … two hours. There has been a day where I’ve worked six hours. But some of those six hours will incorporated a break, and it could – travel from Mooroolbark office down to Ferntree Gully, or up to Yarra Junction, and then to another site maybe at Healesville, and then back to the office. So it’s not constant work of injecting somebody for that six hours … So I’d like to say I’d be comfortable at maybe ten, 12 hours, but not consecutive days.”[16]
[16]T 51, L 16-31
20 She gave further evidence in relation to the difficulties caused by working consecutive days:
“I get the flare up of my symptoms when I’ve worked. I use the heat pack. Sometimes when I need - alcoholic beverage, that helps. And then I’ll rest, and my symptoms settle with the heat pack. And then I go to work again, my symptoms increase, and so on – and use the heat pack.”[17]
[17]T 52, L 19-25
21 There was some cross-examination directed towards pre-existing conditions. Ms Bourne-Bryant agreed that she had suffered from back pain in the past, but she believed an episode which flared up in October 2015 had subsequently settled down.[18]
[18]T 53, L 8 to T 54, L 7
22 Ms Bourne-Bryant also described suffering from restless leg syndrome at about that time. This had subsequently settled down.[19]
[19]T 54, L 11-28
23 Ms Bourne-Bryant also agreed that she had suffered a whiplash injury causing neck problems following a car accident in the United Kingdom in 1997. She had taken a couple of weeks off at that time.[20]
[20]T 55, L 4-10
24 She also agreed that she had suffered a stiff neck on waking one morning in September 2010. This was while she was working for the Epworth Hospital and prior to her commencing with the RDNS.[21]
[21]T 55, L 27 to T 56, L 25
25 The clinical notes from the Lilydale Medical Centre from 20 April 2017 to 2 July 2018 were tendered following cross-examination.[22]
[22]Exhibit 1
26 When re-examined Ms Bourne-Bryant further described the nature of her current employment commenting on difficulties caused by working consecutive days. She also described the normal shifts as being generally for three or four hours.[23]
[23]T 58, L 15-30
27 Ms Bourne-Bryant’s husband, Paul, swore an affidavit in support on 30 July 2018. He had been married to the plaintiff for approximately 28 years and described her passion for nursing before qualifying in the United Kingdom. He made observations as to her apparent change following her injury and stated:
“She now seems to be in constant pain and is precluded from undertaking activities that she used to previously enjoyed and that we were looking forward to doing together. Golf was one of these activities along with gardening which was her passion.
In terms of Sally’s earnings, we have suffered significant financial loss as a result of her inability to work. She received WorkCover payments for a period of 130 weeks.
She has sought to requalify as an immunisation nurse and now earns a portion of what she used to earn when she was working in the personal care setting.
When she comes home after work she is in a lot of pain and needs to rest and applies her heat pack.”[24]
[24]Exhibit A, p 24 [6] to [9]
28 Mr Bourne-Bryant was not required for cross-examination.
The medical evidence
29 The medical evidence was uncontroversial in terms of Ms Bourne-Bryant undergoing neck surgery in July 2015 under the care of Professor Richard Bittar, neurosurgeon. It would appear she had also developed bilateral shoulder pain noted by her general practitioner as being consistent with bursitis.
30 After undergoing two hydrodilitation procedures she underwent arthroscopic surgery to the right shoulder performed by the orthopaedic surgeon, Professor Richardson, in December 2016.
31 Although at first it may appear that there is some difficulty in dissecting which particular injury results in the present incapacity, the report provided by Professor Richardson dated 1 August 2017 following the shoulder surgery notes ongoing symptoms emanating from the neck.
“She was progressing well post the arthroscopic shoulder decompression however she reported persistent right sided neck pain with brachialgia in the C7 distribution and an MRI scan was ordered to look for any C7 nerve root impingement of the neck. … but we note an MRI of the cervical spine done on 10/7/2017 demonstrated an ACDF fusion at the C5-6 level following her previous neurosurgery and evidence of right sided foraminal stenosis with discophyte formation likely accounting for the C7 radiculopathy.”[25]
[25]Exhibit A, p 165
32 The real area of disputation between the parties centred on the extent of Ms Bourne-Bryant’s capacity for suitable employment.
33 There was no medical opinion suggesting that Ms Bourne-Bryant could return to her pre-injury employment. Her general practitioner, Dr Fildes, most recently noted that the plaintiff had been re-trained and re-entered the workforce as an immunisation nurse. He went on to comment:
“Sally does, however, continue to suffer significant symptoms and finds massage treatment helpful in relieving her symptoms.
Her progress will be monitored clinically.
The benefits of massage will be to reduce some of her suffering and ensure that she remains actively employed within the workforce.”[26]
[26]Exhibit A, p 39
34 Quite properly Mr Stanley, on behalf of the defendant, submitted that Dr Fildes did not place any specific restriction on the number of hours which the plaintiff could work.
35 Dr Richard Sullivan, the plaintiff’s pain specialist, had first treated Ms Bourne‑Bryant in May 2014. He last saw her in October 2017 when he performed a right-sided C5 selective nerve root injection on her. He wrote to the plaintiff’s solicitors on 26 July 2018 at which time he believed she had a part‑time capacity:
“… perhaps between 12 and 20 hours per week in a sedentary role.”[27]
[27]Exhibit A, p 163
36 Professor Richardson wrote to the plaintiff’s general practitioner on 8 September 2017. In that report he did not particularly express an opinion as to her capacity, but did state:
“On the positive side she is very happy she has a job doing some district immunisation nursing for 2 or 3 hours a day. This is good for her psyche and gets her out of the house so she can think about return to work possibilities for the longer term.”[28]
[28]Exhibit A, p 166
37 Professor Richard Bittar last saw Ms Bourne-Bryant in June 2017. He wrote to Dr Fildes on the same day. In that report he stated:
“Sally has returned to work as an immunisation nurse on a casual basis, and has a fairly realistic view of her overall condition as well as realistic goals for the future. As she pointed out, if all that she is left with is this pain in this particular region, then she will be able to manage, as her other symptoms were certainly more troubling and have now settled.”[29]
[29]Exhibit A, p 154
38 I have noted in that report that Professor Bittar points out he had suggested ongoing treatment by Dr Sullivan.
39 A medico-legal opinion from Professor Brearley, dated 23 June 2017, noted injuries to both the plaintiff’s neck and her right shoulder. Without differentiating between the consequences of each injury, Mr Brearley expressed the following opinion:
“As a result of her injuries, she is permanently confined to lighter work whereby she is able to avoid repeated bending and stooping, heavy lifting and awkward situations as in helping paralysed and post-operative patients.”
40 He regarded her prognosis as fair, stating:
“It is likely that her symptoms will continue for the foreseeable future but in the very long-term there will probably be slight improvement. This will not be to the extent, however, that she will be able to resume her former work.”[30]
[30]Exhibit A, p 97
41 I accept the submission made by Mr Stanley that Mr Brearley’s opinion does not differentiate between the neck and the shoulder injuries, and also does not limit the number of hours in suitable employment for which the plaintiff would have a realistic capacity.
42 Dr Joseph Slesenger, occupational physician, provided two reports dated 28 June 2017 and 13 June 2018.[31] In his first report he noted Ms Bourne‑Bryant had recently returned to work performing alternative duties and was currently working reduced hours. At that time he was guarded about the extent of her capacity, although it would appear he had an incorrect history that Ms Bourne‑Bryant had returned to alternative duties on a full-time basis.
[31]Exhibit A, p 98-124
43 He saw her again most recently on 4 June 2018. On that occasion he noted:
“Since Ms Bourne-Bryant’s last evaluation, she has remained in work as an immunisation nurse performing immunisations between 2 and 10 hours per week in community centres and schools. She advised that she has difficulty setting up the clinical areas, particularly if these require manouvering furniture such as tables and chairs. She advised that there are often other staff available to assist her; however, she advised that the job demands may require heavy manual tasks such as pushing and pulling tables and stacking chairs. She has not undergone any further retraining.”[32]
[32]Exhibit A, p 118
44 He then expressed a view that she had a limited capacity for work with restrictions on driving limited to 60 minutes in each direction, and employment for four hours per day, four days per week. He also noted potential alternative employment in areas such as a pre-surgical admission nurse in a hospital environment “should be discussed with a vocational assessor.”[33]
[33]Exhibit A, p 123
45 I should note for completeness that Dr Slesenger’s recommendation of four hours per day, four days per week involved the plaintiff working on consecutive days twice in each week.
46 The final medico-legal opinion relied upon by the plaintiff was from the neurosurgeon, Mr Mohammed Awad. In a report dated 29 June 2018 to the plaintiff’s solicitors he noted:
“Considering her neck injury alone, she is clearly suitable for employment as she is working at the moment. However she is not suited for her pre‑injury employment as a District nurse, which is a more laborious task and she clearly would not be able to do this.”[34]
[34]Exhibit A, p 127
47 Once again Mr Awad does not place any limit on the number of hours which would be suitable for Ms Bourne-Bryant.
48 The defendant’s medical reports relied upon in this application were from Associate Professor Bruce Love, Mr Jonathan Hooper and Mr Michael Dooley. Each of these consultants is a specialist in orthopaedic surgery.
49 Associate Professor Love examined the plaintiff on four occasions, initially on 26 October 2015, and most recently on 27 June 2017. In his most recent report dated 24 August 2017 Professor Love expressed the following opinion regarding capacity:
“She is probably not fit for full time work and in view of the prolonged period of invalidism I am not of the opinion that it is likely she will gain capacity for full time duties in the foreseeable future but were work available in the role that she currently has at an increasing rate I believe she would be capable of doing this.”[35]
[35]Exhibit 2, p 34
50 Mr Hooper examined Ms Bourne-Bryant initially on 5 June 2017 and again on 29 May 2018. Following that most recent examination he gave the following opinion relevant to capacity:
“… she has not been able to return to her work as a nurse, but she has subsequently got a more sedentary job in terms of an immunisation nurse working part-time and she is capable of doing this. She does have a capacity for suitable employment, but she may not be able to work 40 hours a week. However, she is capable of working as a immunisation nurse or doing nursing work in a sedentary capacity. … Whether she is able to continue working really depends on the compliance of her employer who is prepared to employ her and keep her doing activities that do not cause her discomfort.”[36]
[36]Exhibit 2, p 77
51 Mr Dooley examined Ms Bourne-Bryant on one occasion only, 9 May 2018. He provided a report to the defendant’s solicitors on 5 July 2018. At that stage he commented as follows in relation to her capacity:
“I do not believe that Ms Bourne-Bryant would be able to carry out all of the duties required in terms of working as an active clinical nurse.
(a) I believe that Ms Bourne-Bryant has a physical capacity to carry out light physical work and clerical duties. Her current work as an immunisation nurse would be appropriate for her.
(b) I believe that she would have the physical capacity to carry out jobs such as a practice nurse, nurse coordinator, telephone triage nurse, receptionist and ward clerk.”[37]
[37]Exhibit 2, p 82
52 Mr Dooley provided two supplementary opinions to the defendant’s solicitors on 16 July 2018 and 7 August 2018.[38] It is clear that he had been asked to comment more specifically on her work capacity. In his first letter he stated:
“Currently Mrs Bourne-Bryant works as an immunisation nurse on a casual basis. Her working hours are variable. It is difficult to state the exact number of hours which Mrs Bourne-Bryant would be able work. One would have to adopt an expectant approach in this regard. For her overall wellbeing, I believe it is important that Mrs Bourne-Bryant remains in stable employment.”[39]
[38]Exhibit 2, p 84-85
[39]Exhibit 2, p 84
53 In his most recent opinion Mr Dooley commented on radiological material that had been provided to him. He stated:
“In my view the reported MRI scan demonstrates naturally occurring degenerative change. Overall, there is relatively little difference from a scan taken a year before. Any change such as the C6/7 level relates to the natural evolution of the underlying degenerative disc disease. It remains my view that one cannot explain the constancy and intensity of Mrs Bourne-Bryant’s ongoing pain on the basis of organic injury. I do not believe that one can explain the situation on the basis of the MRI scan findings from last year.”[40]
[40]Exhibit 2, p 85
54 He then went on to comment more specifically on her level of capacity stating:
“When I reviewed her in May of 2018 she was working on a casual basis as an immunisation nurse. I would estimate that she would have a physical capacity to work for around half time, i.e. twenty to twenty-five hours per week.”[41]
[41]Exhibit 2, p 85
55 Mr Stanley tendered into evidence clinical notes from the Lilydale Medical Centre which had been put to the plaintiff during cross-examination.[42] These notes recorded attendances at the practice between 20 April 2017 and 2 July 2018.
[42]Exhibit 1
56 Following Ms Bourne-Bryant’s return to work in June 2017 the clinical notes recorded an attendance by her to discuss pain relief options on 5 July 2017. The next relevant attendance on her general practitioner was recorded on 16 May 2018 noting she had ongoing pain/stiffness in shoulder/arm. It also noted she required a letter for massage therapy approval.
Analysis
57 In order for leave to be granted to the plaintiff in respect of pecuniary loss damages, she needs to satisfy the court that her permanent capacity for suitable employment is reduced to an extent that she will suffer a loss of earning capacity of 40 per cent or more measured in accordance with the statutory requirements. Based upon her without injury earnings figure of $1,630.25, Ms Bourne-Bryant must satisfy me that her capacity is permanently limited to an extent that she would not be capable of earning in excess of $978.15 (60 per cent of her without injury earnings figure). This translates to just in excess of 15 hours per week based upon the hourly figure of $64.51, which was urged upon me by Mr Stanley.
58 I found Ms Bourne-Bryant to be a truthful and reliable witness. It is clear that she has shown considerable fortitude and endeavour to undertake a formal re‑training program and to obtain and persist with her current employment since June 2017.
59 Notwithstanding the criticism directed at her in relation to a lack of attendances on her general practitioner, I am satisfied that the notations made by Dr Fildes in July 2017 and May 2018 are consistent with all of the specialist medical opinion as to some degree of ongoing persisting pain and disability.
60 The defendant tendered into evidence the payslips relating to Ms Bourne‑Bryant’s employment between 27 May 2017 and 8 June 2018. Although these payslips are not determinative of the actual extent of her capacity, they are nevertheless relevant in demonstrating the actual hours worked by the plaintiff in a period in excess of one year. Of the 20 fortnightly payslips tendered in evidence only three record Ms Bourne-Bryant working in excess of 20 hours over a fortnightly period.
61 Mr Stanley forcefully submitted on behalf of the defendant that the plaintiff had every opportunity to invite medical opinion, both from her general practitioner, specialist consultants and medico-legal specialists in order to establish a limitation to the number of hours in which she could perform suitable work.
62 Ms Bourne-Bryant does have the onus to satisfy the court that her hours are relevantly limited in order for leave to be granted. In some cases precise medical opinion may be persuasive on an issue such as the exact extent of a worker’s post-accident capacity. In the present case the variance of opinion between treating and medico-legal practitioners is such that a court can have little confidence of the weight to be given to any particular opinion.
63 By way of example the three separate opinions recently expressed by Mr Dooley demonstrate the difficulty faced by any medical practitioner forming an opinion on such a matter solely on the basis of medical expertise.
64 In the present case I cannot agree with Mr Stanley’s submission that the question of Ms Bourne-Bryant’s capacity can only be answered by precise medical opinion. This is not a matter upon which my view is limited either by statute or by appellate authority.
65 The Court of Appeal recently considered the issues concerning a determination of a loss of earning capacity in Tirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35. In that case part of the evidence admitted before the trial Judge were Medical Panel opinions, some of which related to the worker’s after injury capacity. The court accepted as a valid proposition the principle that an opinion of a witness conflicting with a certificate of the opinion of a Medical Panel could not be used to circumvent the Panel’s opinion.[43] Nevertheless the court emphasised the need for an examination of the whole of the evidence and an appropriate exercise of judgment to be made in determining the statutory analysis required by what is in effect a gateway provision.[44]
[43] Tirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at [87]
[44]Ibid at [88] and [89]
66 In Ms Bourne-Bryant’s case I note her actual participation in employment as an immunisation nurse since June 2017 records only rarely does she work in excess of 20 hours per fortnight. Her own evidence that she experiences difficulties if she is required to work on consecutive days impressed me as an accurate description of the consequences of her neck injury in terms of placing a restriction on her work capacity.
67 Ms Bourne-Bryant’s description of using heat packs and other modalities (including an occasional alcoholic drink to ease her symptoms) impressed me as being truthful and an understandable response to the varying physical rigors posed by her current employment regime.
68 Noting her evidence as to the approximate length of shifts performed by her, I believe it is reasonable to conclude that she would have no greater capacity on a permanent basis than to perform work on four hours per day on alternative weekdays, that is three days per week.
69 I therefore find that the plaintiff has currently no greater capacity for suitable employment than 12 hours per week. I am also satsifed that this capacity is unlikely to improve in the foreseeable future. Indeed it seems on the basis of her participation in that employment over the past year, that she has generally worked lesser hours, probably in the range of two to ten hours, as recorded by a number of the medical witnesses.
Conclusion
70 The injury to the plaintiff’s cervical spine is a serious injury.
71 I am satisfied that the plaintiff has established that she has suffered a permanent loss of earning capacity of 40 per cent or more and is entitled to leave in respect of a claim for pecuniary loss damages. I note the defendant conceded at the commencement of the hearing that the plaintiff had suffered a serious injury for the purposes of a claim in respect of pain and suffering damages.
72 I therefore propose to grant leave for the plaintiff to claim damages in respect of both pecuniary loss and pain and suffering in accordance with section 134AB(16)(b) of the Act.
73 I propose to make formal orders as follows:
i)Pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, grant leave to the plaintiff to bring a proceeding for the recovery of damages for both pecuniary loss and pain and suffering in respect of injuries to both her cervical spine and/or her right upper limb sustained on 8 November 2013.
ii)The defendant pay the plaintiff’s costs pursuant to the WorkCover (Litigated Claims) Legal Costs Order 2016, such costs to be assessed by the Costs Court in default of agreement.
iii)Certify for two counsel:
·Senior counsel’s fee on brief fixed in the sum of $6,000 per day for two days, together with two hours of special conferences at $600 per hour.
·Junior counsel’s fee on brief fixed in the sum of $3,000 per day for two days, together with two hours of special conferences at $300 per hour.
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