Cano v Reece Pty Ltd
[2016] VCC 860
•29 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03571
| HUGO CANO | Plaintiff |
| v | |
| REECE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2016 and 21 June 2016 | |
DATE OF JUDGMENT: | 29 June 2016 | |
CASE MAY BE CITED AS: | Cano v Reece Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 860 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Economic loss – Aggravation to degenerative disease
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: Leave granted in respect of economic loss and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr M Fogarty | Slater & Gordon Ltd |
| For the Defendant | Ms M Britbart QC with Mr M J Hooper | Minter Ellison |
HIS HONOUR:
1 This is an application pursuant to s134AB(16) of the Accident Compensation Act 1985 (the Act) by the plaintiff for leave to commence a proceeding for damages in respect of the economic loss consequences and pain and suffering consequences of an injury suffered by him whilst employed as a storeman by the defendant, Reece Plumbing Pty Ltd. The injury relied upon by the plaintiff in support of the application is an aggravation to degenerative disease at the L4‑5 level of his lumbar spine. The body function relied upon by the plaintiff is his spine.
2 It is not in issue in the proceeding that in February 2013 the plaintiff’s work duties involved repetitive lifting of heavy boxes containing plumbing components, and as a result he developed lower back pain. On 15 February 2013 the plaintiff reported the injury to his employer and completed an incident report. On 18 February 2013 the plaintiff was examined by the defendant’s medical practitioner, Dr Soo Ling Tang, who placed him on light duties. On 19 February 2013 the plaintiff’s medical practitioner, Dr Peter Williams, certified him as unfit for any duties, and a WorkCover claim was lodged and accepted by the defendant.
3 At the time of the injury the plaintiff was performing alternative duties in respect of his employment. He had returned to work in January 2013, having been on leave since September 2012 as a result of a stress-related psychological reaction to an incident that had taken place during the course of his employment in September 2012. At that time the plaintiff had been employed as a leading hand in a warehouse operated by the defendant, and was performing supervisory and administrative duties. When he returned to his employment in January 2013 the defendant required him to perform manual duties including lifting boxes of plumbing components, which caused the injury relied upon in support of this application. I shall return to the stress-related psychological injuries and their significance in respect of this application during the course of these reasons.
4 The plaintiff was born on 30 March 1978 in El Salvador. He and his family migrated to Australia in 1991 when he was thirteen. Thereafter he completed Year 10 at secondary school and commenced Year 11 but did not complete it. He speaks fluent Spanish and English. After leaving school he was employed in a range of unskilled occupations prior to commencing employment with the defendant in 2006 as a storeman. The plaintiff has no formal trade or other qualifications.
5 In support of the application the plaintiff tendered two affidavits sworn by him on 25 March 2015 and 10 June 2016. He attended the hearing of the application, gave evidence, and was cross-examined. Otherwise the parties relied upon the medical and other evidentiary material tendered by each of them.
6 Following Dr Peter Williams certifying that the plaintiff was unfit for any duties, a CT scan of his lumbar spine was carried out on 20 February 2013. That scan revealed:
“Moderate degenerative changes and narrowed disc space noted at L4‑5 level with mid-posterior circumferential disc bulge worse on the right. However, it is slightly encroaching upon spinal canal and right-sided lateral recess of this level.”[1]
[1]Plaintiff’s Court Book (PCB) 22
7 An MRI scan of the plaintiff’s lumbar spine on 17 May 2013 revealed the following:
“Moderately severe L4/5 spondylosis is present. Disc height is markedly reduced. There are mild endplate reactive changes (Modic 2). Diffuse annular bulge is partly covered by syndesmophytes. While it indents the thecal sac it does not lead to a significant canal stenosis. Disc margin contacts the ventral surface of the descending L5 nerve roots without compressing or displacing them.”
8 And further:
“There is moderate L4/5 spondylosis. No convincing neural impingement.”[2]
[2]PCB 22
9 The plaintiff’s general practitioner prescribed him painkilling and anti-inflammatory medication, and he was referred to physiotherapy. In April 2013 an epidural injection into his lumbar spine provided him with temporary relief for the pain that he was experiencing.
10 Between 1 August 2013 and 8 January 2014 the plaintiff attended Dr Robert Gassin, a musculoskeletal and pain physician, on six occasions, in relation to the pain he was experiencing as a consequence of his lumbar spine injury. He described the pain to Dr Gassin as having:
“... a sharp quality and was constantly present. It was aggravated by prolonged sitting and standing.”[3]
[3]PCB 51
11 Dr Gassin designed a pain-management program for the plaintiff in an effort to assist him to manage his pain and reduce his intake of painkilling medication. Despite this, the plaintiff’s pain continued, and in January 2014 the plaintiff reported to Dr Gassin that he experienced:
“... ongoing constant pain in the lower back, which varied in intensity from day to day. It was poorly controlled by Mersyndol Forte three daily, Mobic 15 mg daily and Pristiq 100 mg daily. He was also taking Valium intermittently for muscle spasm. He stated that he was still attending physiotherapy and hydrotherapy.”[4]
[4]PCB 53
12 Dr Gassin concluded:
“... Mr Cano is likely to suffer ongoing pain and disability for the foreseeable future.”[5]
[5]PCB 53
13 He further concluded:
“... in my opinion from a physical point of view, Mr Cano should be able to engage in work of a nonphysical nature, which allows him to alter from sitting to standing postures on a regular basis.”[6]
[6]PCB 53
14 Whilst undergoing the pain-management program with Dr Gassin the plaintiff attempted to return to work with the defendant in August 2013. He worked two days per week on reduced hours, performing light duties. I accept that he attended work for three days on this occasion and was unable to continue his duties due to his back pain. The plaintiff did not return to work with the defendant, and his employment was terminated in November 2014.
15 On 21 May 2013 the plaintiff was examined by Professor Peter Teddy, a neurosurgeon. Professor Teddy concluded:
“His MRI and CT scans of 17th May, show modest degenerative changes at L4/5 with narrowing of the disc space but, to my mind, no other significant pathology.
I really do not think that he warrants any form of surgical intervention and I have reassured him that he has no neurological compromise and that the scans show only minor/modest degenerative changes to the extent that the images are relatively normal for a man of his age.”[7]
[7]PCB 54a
16 The plaintiff was also examined by Associate Professor Bruce Love on 4 June 2014. Professor Love took an extensive history from the plaintiff detailing the significant pain he experienced as a result of his injury. Professor Love concluded:
“This man has a good reason for having severe low back pain. This opinion is based on the history, my examination, and observation of the MRI and bone scan findings.”[8]
[8]PCB 57
17 He further concluded:
“At this stage he does not have capacity to engage in suitable employment, but further investigation and treatment options as outlined in the foregoing need to be considered.”[9]
[9]PCB 59
18 A further MRI was conducted of the plaintiff’s lumbar spine on 8 October 2015. It revealed:
“There is a broadbased protrusion of moderate grade L4/5 posteriorly traversing foramina bilaterally. Facet arthropathy of mild grade is appreciated also at this level. Canal dimensions remain within normal limit but mild recess and foraminal stenoses are seen.”[10]
[10]PCB 61
19 Professor Love reviewed the plaintiff on 9 May 2016. He concluded from his clinical examination that the findings were identical to those he had observed in 2014. Professor Love concluded that the plaintiff appeared to have significant degenerative disease at L4‑5 level and that consideration ought to be given for a spinal fusion procedure. Professor Love also concluded:
“He does not have any capacity for work at this time and he is not likely to work in the foreseeable future.”[11]
[11]PCB 65
20 The plaintiff was examined on behalf of the defendant by Professor Anthony Buzzard on 18 November 2014. Professor Buzzard concluded that:
“... Mr Cano does have definite degenerative disease at L4/5 evidenced in the various imaging reports and images that I have seen.”[12]
[12]Defendant’s Court Book (DCB) 18
21 He also concluded that the injury the plaintiff suffered in February 2013 was aggravation of pre-existing degenerative disease, and he further concluded that the plaintiff’s condition was stable. Professor Buzzard re‑examined the plaintiff on 6 July 2015 and concluded that his condition had not changed.
22 I am satisfied that the evidence in the application establishes that the plaintiff suffered an aggravation to pre-existing degenerative disease in his lumbar spine at L4‑5 as a result of his work duties with the defendant in February 2013. I am also satisfied that as a consequence of that injury the plaintiff has experienced significant ongoing pain which requires significant pain-relief medication and anti-inflammatory medication. I am also satisfied that the plaintiff has undertaken pain-management therapy, hydrotherapy, and physiotherapy, in an effort to reduce and manage the pain that he is suffering from.
23 Furthermore, I am satisfied that, as would be expected, the pain that the plaintiff is suffering from has significantly impaired his quality of life and his capacity to participate in activities such as playing soccer, attending a gym and Latin dancing as he was previously accustomed to.
24 In support of the application, the plaintiff tendered medical records kept by his general practitioner, Dr Kim Yueng. Those records demonstrate that between September 2014 and May 2016 the plaintiff had numerous consultations with Dr Yueng for the purpose of obtaining painkilling medication for his lower back pain. The records disclose that the plaintiff complained to Dr Yueng of chronic lower back pain requiring such medication.
25 In November 2014 the plaintiff obtained employment as a console operator at a service station operated by Woolworths. He had been applying for other employment at that time, and when he commenced that job it was on a part-time basis working 16 hours per week. The plaintiff’s duties involved him standing for long periods of time, and also the stacking and replenishing of stock at the service station.
26 The plaintiff has tendered in evidence a summary setting out the hours that he worked at the service station between 24 November 2014 and 28 June 2015. The summary demonstrates that the plaintiff worked an average of 28 hours per week during this period. Thereafter the plaintiff reduced his working hours at the service station, and he now works 10 hours per week, comprising two 5‑hour days. The plaintiff commences his shift at 7.15pm and concludes at 12.15am.
27 The evidence of the plaintiff’s work hours between November 2014 and June 2015 is relied upon by the defendant to demonstrate that the plaintiff is currently capable of working in excess of the 10 hours per week that he is currently engaged in. It is further submitted on behalf of the defendant that the duties performed by the plaintiff are akin to the duties that he performed as a leading hand when employed by the defendant.
28 It is submitted on behalf of the plaintiff that, by reference to his evidence and the medical evidence of his current condition, he is only capable of working 10 hours per week by reason of the pain and suffering consequences of his lumbar spine injury.
29 Before turning to my conclusions in respect of the plaintiff’s current work capacity, it is now necessary to refer to a submission made on behalf of the defendant in respect of the pain and suffering consequences of the plaintiff’s back injury.
30 In September 2012 the plaintiff was engaged in an incident during the course of his employment with the defendant wherein he was yelled at and abused by a manager employed by the defendant. In response to this incident the plaintiff developed a significant stress reaction for which he sought medical treatment from his general practitioner, Dr Williams. A WorkCover claim was lodged on the plaintiff’s behalf, and he was placed on alternative duties by the defendant. In October 2012 the plaintiff was referred to Dr Vladas Petrulis, a psychologist, in respect of depression and anxiety that he developed in response to the incident in September 2012. In a report dated 28 November 2013 Dr Petrulis concluded that:
“According to conducted clinical interviews and psychological tests, since the initial injury in 2012, Mr Cano has developed massive reactive depression with suicidal ideation, anxiety and stress.
Since the injury in 2012, Mr Cano’s sleep was erratic, broken, with lots of unpleasant dreams and occasional nightmares and sweating.”[13]
[13]PCB 33
31 And further:
“After the injury in 2012, Mr Cano lost interest in his usual activities and hobbies which he enjoyed a lot like playing soccer, attending gym and dancing.”[14]
[14]PCB 33
32 In a report dated 20 May 2014 Dr Petrulis noted that the plaintiff is regularly taking prescription medication to prevent a further deterioration in his mental condition and that the plaintiff continued to require regular psychological counselling in respect of depression and anxiety.
33 It is submitted on behalf of the defendant that the evidence establishes that the consequences relied upon by the plaintiff in relation to his lumbar spine injury are in fact consequences that pre‑date the occurrence of the injury and are a result of the depression and anxiety experienced by the plaintiff in response to the incident in September 2012. It is further submitted by the defendant that an examination of the evidence relied upon by the plaintiff in respect of the pain and suffering consequences of his lumbar spine injury demonstrates that those consequences have been amplified by the plaintiff’s psychological condition, and that I must disentangle that amplification from the physical pain and suffering consequences relied upon.
34 The plaintiff’s evidence regarding the consequences of his injury was not, in my opinion, qualified or significantly altered by the cross examination of him. He impressed me as a truthful witness giving evidence of the debilitating impact on him of the injury.
35 I am also satisfied, based on the medical evidence relied upon by the plaintiff, which is in part supported by the medical evidence relied upon by the defendant, that the pain and suffering consequences relied upon by the plaintiff are physically based. Whilst I also accept that by reason of the plaintiff’s pre-existing psychological condition there is a degree of supervening psychological overlay, I do not accept that it is necessary to identify with precision the extent of that and exclude it from consideration in this case.[15] The consequences relied on by the plaintiff are, in my opinion, organically based.
[15]See Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at paragraph 19 per Ashley JA
36 The plaintiff’s injury occurred over 3 years ago and it has not responded to a range of treatments and the plaintiff continues to require significant pain management medication. I am satisfied that the aggravation to the plaintiff’s degenerative lumbar spine disease has stabilised and accordingly is permanent. Furthermore, I am satisfied that the injury may fairly be described as being more than significant or marked, and as being at least very considerable.
37 It is agreed by the parties that the plaintiff’s without earning capacity is $64,956 per annum. Sixty per cent of his without injury earning capacity is $38,973.60 per annum. The plaintiff is currently working 10 hours per week, earning approximately $21 per hour. This equates to $10,504 per annum.
38 The plaintiff gave evidence that by reason of the pain that he suffers as a consequence of his lumbar spine injury he is unable to work any more than he currently is. As I have said, the plaintiff impressed me as an honest and reliable witness, and in my opinion all of the evidence discloses that he has attempted to engage in suitable employment and programs to facilitate his rehabilitation from the injury that he has suffered. The evidence establishes that the plaintiff suffers constant back pain, and that prolonged activity, and in particular standing, aggravates this.
39 The defendant relied on a report of Dr Dominic Yong, an occupational physician, in relation to the plaintiff’s current work capacity. Dr Yong does not state that the plaintiff is currently fit for full time employment and does state that any work currently performed by the plaintiff would be the subject of significant restrictions[16]. I do not accept that the plaintiff is currently fit for full-time employment as a leading hand or in a similar occupation as was submitted on behalf of the defendant.
[16] DCB 11
40 In the result, I am satisfied that the plaintiff has established a loss of earning capacity which meets the threshold fixed by the Act.
41 I am also satisfied that by reason of the impairment of functioning caused by the injury the subject of this application, that the pain and suffering consequences of the injury are fairly described as being more than significant or marked and as being at least very considerable.
42 It follows that the plaintiff is entitled to the order sought in the application, namely leave to commence a proceeding claiming damages for both pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of the application.
43 I will hear the parties as to the precise form of order sought in the matter and also upon the issue of costs.
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