Carey v Yooralla Society of Victoria
[2013] VCC 1872
•4 December 2013
| IN THE COUNTY COURT OF VICTORIA DAMAGES & COMPENSATION LIST | Revised (Not) Restricted |
Case No.CI-11-04343
| NANCY CAREY | Plaintiff |
| v | |
| YOORALLA SOCIETY OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 3 September 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Carey v Yooralla Society of Victoria | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1872 | |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application under s 134AB(16) of the Accident Compensation Act 1985 for leave to commence proceedings for pain and suffering – Leave granted.
Cases cited: Wingfoot Australian Partners Pty Ltd v Kocak [2013] HCA 43; Petkovski v Galletti [1994] 1 VR 436
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | Ellis Palmos & Co |
| For the Defendant | Mr N Y Rattray | Minter Ellison |
HER HONOUR:
1 Nancy Carey makes this application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, (‘the Act’), for injury suffered by her in the course of her employment with Yooralla Society of Victoria (‘Yooralla’), due to the nature of her employment and, in particular, following an incident at work on or about the 4 May 2007.
2 Ms Carey relies on the definition of serious injury in s134AB(37)(a) of the Act. There, ‘serious injury’ is defined relevantly as meaning ‘permanent serious impairment or loss of a body function’. The claimed loss of body function and impairment is the lumbar spine.
3 Leave is sought to recover pain and suffering damages only.
4 This matter was heard on the 2nd and 3rd of September 2013, and was adjourned part-heard pending the High Court decision of Wingfoot Australian Partners Pty Ltd v Kocak [2013] HCA 43 (Kocak).
5 By way of background, in 2011 the Plaintiff made a claim for statutory benefits in the Magistrates’ Court of Melbourne (‘the Magistrates’ Court proceedings’). In the course of the Magistrates’ Court proceedings, Magistrate Wright referred various questions to the Medical Panel. By Certificate of Opinion dated 31 August 2011 the Medical Panel answered those questions (‘the Medical Panel findings’).
6 On 2 September 2013 and in the course of discussions at the commencement of this Serious Injury Application, Mr Rattray, Counsel for the Defendant, indicated that the then pending High Court decision of Kocak may result in section 68(4) of the Accident Compensation Act 1985 applying to create an issue estoppel in respect of the Medical Panel findings. An application to adjourn the proceeding was rejected, and the matter proceeded. Ms Carey and Dr Margaret Harrison, General Practitioner, gave evidence. The matter was then adjourned pending the outcome of the decision in Kocak.
7 On 31 October 2013 the High Court delivered its judgment in Kocak. Relevantly, at paragraphs [37] and [64] the Court said as follows:
‘What s 68(4) of the Act on that construction requires is that an opinion of a Medical Panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter.’
…
The legal effect given by s 68(4) is that the opinion must be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the Medical Panel. The opinion is given no greater legal effect through the operation of issue estoppel.’
8 Therefore, I uphold Mr Stanley’s submission that the Medical Panel findings do not create an issue estoppel to any matters relevant to this Court’s determination of the Plaintiff’s Section 134AB Application.[1]
[1]Further submissions of the Plaintiff dated 29/11/2013 and filed in these proceedings.
9 Mr Rattray on behalf of the Defendant acknowledged service of the Plaintiff’s further submissions. He confirmed that the Defendant does not wish to make any further submissions in respect to the decision of Kocak.
10 I shall therefore proceed to determine this application having regard to the totality of the evidence relied on by the parties.
11 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors[2] that the correct template is firstly, to determine whether the Plaintiff suffered compensable injury on or after the 20 October 1999; secondly, to determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[2][2005] VSCA 33
12 Ms Carey adopted her affidavits sworn 2 May 2011, 21 September 2012 and 8 August 2013 and was cross-examined. Both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
13 I had the opportunity to assess the Plaintiff in the course of cross-examination. She gave her evidence in a straightforward manner without embellishment. I found her to be credible and reliable. Mr Rattray, on behalf of the Defendant, confirmed in the course of his final submissions that the Plaintiff’s credit was not in issue.
14 By way of background, the Plaintiff is aged 55 and was born on the 12 January 1958. She left school aged 15 at the conclusion of year 8. Her employment has always been in the caring field. For 10 years she worked as a day care worker for the City of Preston between 1985 and 1995. In the eight years following she worked as a home carer for the City of Darebin assisting elderly residents in their homes performing house cleaning.
15 On the 17 March 2003 she commenced employment with Yooralla at the Glenroy Specialist School as a Personal Carer and Therapist Aide. She worked on a permanent part-time basis working 33 hours per week.
16 Her duties involved being responsible for caring for disabled children aged between 5 and 18 years of age who have significant physical disabilities. It is claimed her injury occurred in the course of her employment due to the heavy nature of her employment from March 2003 through to 2007, and in particular, following a fall at work on the 4 May 2007.
17 The circumstances of the fall are set out in paragraphs [10] and [11] of the Plaintiff’s affidavit sworn 2 May 2011. In summary, she was walking in front of a wheelchair carrying a student with the purpose of going to an area described as a “green bay” to change the student who had soiled himself. She opened a gate and her right foot became stuck on the polished linoleum floor, causing her to overbalance and fall onto her right hand side and strike her hip heavily on the ground (the incident).[3] She continued her normal duties for the rest of the day and then tried to manage the back pain with deep heat and rest. Her condition did not improve over the weekend and in fact, she states that the pain in her low back, right hip and leg worsened.[4]
[3]PCB 12
[4]Paragraph [12]-[13] PCB 13
18 On Monday 7 May 2007 she reported the incident at work to her employer and continued working on in pain. On Wednesday 9 May 2007 her pain significantly increased and at that time she consulted Dr Harrison, General Practitioner. Dr Harrison certified her unfit for work from 10 May 2007 to 4 June 2007. She eventually resumed work, still experiencing back pain, right hip pain and right thigh pain and was placed on restricted duties performing reception work that involved administrative tasks only, with limited hours. Her hours were 28.6 per week[5] and have been further reduced to 21 hours per week.[6] Those duties have continued.
[5]Paragraph [14]-[17], [23] PCB 13,14
[6]Paragraph [3] PCB 24
19 The Plaintiff currently works 16 hours per week at Yooralla’s Brooklyn premises and 7.6 hours per week at Glenroy. She resides in Reservoir and is required to drive to work.
20 Ms Carey has not returned to her old job as a Personal Carer and Therapist Aide. Her condition is managed conservatively with pain relief, physiotherapy, TENS, rest and the use of a back brace.
21 No surgical intervention has been recommended by Mr Michael Johnson, the treating Orthopaedic Surgeon.
22 Ms Carey complains of constant low back pain that fluctuates in severity with intermittent pain down the right thigh to the right knee. She has a pins and needles sensation in the right leg. She is unable to sit or stand for prolonged periods. She wears a lumbar support when driving to Brooklyn and has to stop whilst driving to work to stretch and relieve her back pain. Her activities of daily living are restricted in that she can no longer do heavier household tasks. Her sleep is significantly affected and she experiences disturbances on a nightly basis. At the start of each day she is tired and sluggish.
23 Since the incident the Plaintiff has taken daily regular pain relief, including Panadiene Extra, Digesic and Voltaren. In December 2012, she was prescribed Oxycontin because of her worsening pain and the fact that the Panadiene Forte was not having any effect[7]. She takes one tablet each morning and occasionally one at night. It makes her feel woozy and a bit nauseous. She applies Deep Heat and uses a heat pad nightly to ease the back pain. She regularly uses the TENS machine for up to 2 hours per day, and undertakes exercise with a Theraband daily to keep herself mobile and to minimise the pain. She is managed by Dr Harrison who sees her monthly.[8]
[7]Paragraph [5] PCB 24
[8]Paragraph [7] PCB 24
24 Work has become more difficult but she is determined not to let her pain stop her. The driving, particularly to Brooklyn, is excruciating.
25 She lives with her husband, mother and daughter. Her mother and her daughter predominantly perform the household tasks.
26 The Plaintiff’s evidence was not contradicted. I accept Ms Carey’s complaints of chronic pain and restriction of movement in the lumbar spine as described in her affidavits, and in the histories given to the various medical practitioners.
27 I was further assisted in hearing the evidence of Dr Harrison. She has treated Ms Carey since 1987 and knows her well. She has had the advantage of regularly reviewing Ms Carey since the workplace injury in 2007.
28 Dr Harrison has also provided very comprehensive reports with details of her clinical findings and I accept her expressed opinion.
The parties’ submissions
29 In opposing the application for the grant of a certificate, Mr Rattray submitted that there are two principal contentions. The first, based on the expressed opinions of Dr Chris Baker, Specialist in Occupational Medicine and Mr Michael Troy, Surgeon, is that the Plaintiff suffers degenerative changes in her lumbar spine, extending form L3/4 to L5/S1, and that any symptoms she currently complains of are related to that condition and her employment is not materially contributing to her condition.
30 There is no dispute that Ms Carey suffered a compensable back injury. Indeed liability was accepted for injury to the lumbar spine by the Work Cover Agent, Xchanging, on the 29 March 2011.[9] What is in dispute is the nature of the Plaintiff’s injury.
[9]PCB 96
31 Mr Rattray postulated that the Plaintiff’s injury was an aggravation of her pre-existing age-related degenerative condition and that the principles as set out in Petkovski v Galletti[10] apply. Given both Mr Troy and Dr Baker’s expressed opinion that the Plaintiff no longer suffers from a compensable injury he submitted that she therefore fails to meet the statutory test for serious injury.
[10][1994] 1 VR 436
32 This submission can be dealt with shortly. I accept Mr Stanley’s submission that there is no evidence on which the Court could base a finding that there was a pre-existing injury to the low back. I rely on Dr Harrison’s evidence that any past episodes of back pain prior to 4 May 2007 were occasional and that they settled rapidly, either spontaneously or with very little treatment.[11] Dr Harrison confirmed this in re-examination.[12] This is supported by Ms Carey’s evidence, which I accept.[13]
[11]PCB 38
[12]T63, L19-31; T64, L1-31, T65, L1-29.
[13]Plaintiff’s affidavit, PCB 11
33 Further, Ms Carey did not take any time off work prior to 4 May 2007 for back problems and was able to perform her heavy work duties as a Personal Carer and Therapist Aide without restriction.
34 Therefore I do not consider that I need apply the principles as set out in Petkovski v Galletti[14] in this application.
[14][1994] 1 VR 436
35 In respect to the nature of the Plaintiff’s current condition and its relationship to employment I rely on the expressed opinions of both Dr Harrison and Mr Schofield.
36 I do not accept the opinion of Mr Troy that the consequences of the 2007 work incident have settled, and what pain the Plaintiff is suffering from is related to the degenerative changes evident on the radiological investigations.
37 The Plaintiff was asymptomatic, performing heavy lifting duties, leading an active life before the incident without impairment. The situation changed dramatically from May 2007 and Dr Harrison’s evidence supports this finding.
38 Dr Harrison’s evidence was that Ms Carey has consistently given a clear history of her symptoms developing at the time of her stated injuries sustained in her employment at Yooralla on 4 May 2007. She has no reason to believe that her incapacity would have otherwise occurred and hence she feels that Ms Carey’s current disability with back pain and stiffness is significantly related to her employment at Yooralla.[15]
[15]T66, L29-31; T67, L1-7.
39 Dr Harrison's reports set out the chronology. What the reports show is that the Plaintiff has been a consistent attendee citing significant back pain since May 2007.
40 In the report dated 15 August 2010, Dr Harrison states:
“Mrs Carey has a lower back injury with disc bulging at the L3/4 level. This injury is consistent with having been sustained at work as described. Her current capacity is for long term light duties, with no bending or lifting, no prolonged sitting or standing, and with rest breaks as needed. Her employer has been able to provide suitable office based duties and Mrs Carey is generally able to manage full hours, unless hampered by an exacerbation of her back injury. Mrs Carey requires analgesics and anti-inflammatories to manage her back pain on a regular basis, especially following a day at work. She also uses a TENS machine and heat packs which I consider necessary to allow her to self-manage her injury. She is likely to suffer episodic exacerbations due to persistence of her L3/4 disc bulge, and for those will require attendance with doctor and physiotherapist if symptoms are more severe or protracted. As indicated she may also require further orthopaedic specialist management, including possibly a local anaesthetic and steroid injection.”[16]
[16]PCB 41
41 In the report dated 17 July 2012, Dr Harrison states:
“Mrs Carey’s prognosis remains guarded, as she is likely to continue to suffer episodic exacerbations requiring medical and physiotherapy management. However, it is hopeful that conservative treatment can continue to be pursued. I do not at this stage anticipate any further improvement in her overall condition and functioning.
Mrs Carey has been able to remain in the workforce on modified duties including no bending, no lifting, and no prolonged sitting. However she has been unable to recommence many of her previous tasks, both in the workplace and at home, due to her back pain…At this stage I would consider her incapacity to be permanent, as it is now 5 years since her injury, and her progress and her capabilities have plateaued and I do not anticipate any further improvement.
With regard to specific restrictions I feel that Mrs Carey needs to avoid prolonged sitting or standing. Walking and driving can be tolerated, but not for excessive duration, especially at times of exacerbation of back pain. Squatting is significantly limited due to pain. Any repetitive lifting of weights greater than 5kg is tolerated poorly. Bending is restricted and to be avoided. These restrictions are likely to persist for the foreseeable future.”[17]
[17]PCB 45
42 In evidence, when asked “Do you agree that the Plaintiff presents with signs of generalised lower disc degeneration?”, Dr Harrison confirmed that Ms Carey presents with chronic back pain and exacerbations that are more consistent with disc injury.[18] She further confirmed that the Plaintiff has had lumbar back pain radiating down the right leg, which is consistent with disc pathology.[19]
[18]T54, L3-6
[19]T55, L18-21
43 Dr Harrison confirmed that the Plaintiff was able to resume her modified duties at restricted hours following injury. With regard to her condition, Dr Harrison agreed that there had been some improvement, but she felt that her exacerbations had been increasingly severe and frequent recently.[20]
[20]T57, L27-30
44 Dr Harrison specifically disagreed with the proposition that the Plaintiff had suffered a temporary aggravation of her degenerative changes in the spine and that her condition now related to her underlying degenerative spinal condition.[21] She believes Ms Carey has an L3-4 disc lesion, which has not fully recovered, and she has marked restriction in her current capacities and has recurrent exacerbations of pain.[22]
[21]T60, L13-20
[22]T60, L21-27
45 Dr Harrison confirmed that recently the Plaintiff had been prescribed Oxycontin for pain relief, and that she hoped to be able to reduce Ms Carey’s use of that medication in the long-term.[23] Dr Harrison’s evidence was that she has discussed with Ms Carey her use of Oxycontin. She said she has made significant attempts to reduce her need for analgesics, but because of the severity of her back pain, she has found that difficult.[24]
[23]T62, L27-31
[24]T67, L24-28
46 She confirmed Ms Carey has good motivation to continue working on her light duties, but this year in particular she has found that she has struggled more with the work and with commuting.[25]
[25]T63, L8-14
47 Ms Carey has been seen by a number of medical assessors.
48 Mr Hugh Weaver, Orthopaedic Specialist, engaged by the Defendant examined her on the 8 November 2007. He accepts the relationship between the Plaintiff’s work and the injury. In his initial report dated 8 November 2007 he confirmed that Ms Carey presented with convincing clinical and radiological evidence, that she is suffering from a generalised problem of lumbar intervertebral disc degeneration, and that she would have no difficulty in arguing that the fairly heavy character of the employment which she was performing over years with Yooralla has contributed significantly to her situation.[26]
[26]PCB 88
49 Mr Weaver recommended that she continue with conservative treatment and that she was capable of undertaking light work only with no heavy lifting and that those restrictions are permanent.
50 Mr Troy in his initial report dated 2 July 2010, following examination of the Plaintiff on 29 June 2010, stated that Ms Carey has facet joint arthropathy at several levels in her lumbar spine plus a disc bulge at L4/5. He considered that the initial cause of the Plaintiff’s condition was the lifting and carrying that she did in her workload, plus the incident in 2007, along with the degenerative changes of the disc. He concluded that the work condition had resolved and that the recurrence of back pain occurred at home on 29 March 2010.[27]
[27]DCB 13
51 Dr Baker in his first report dated 21 March 2011 diagnosed the Plaintiff as suffering from pre-existing degenerative disc changes in the lumbar spine without any significant symptoms. He opined that she then suffered a workplace incident and that has lead to more marked symptoms with right-sided lower back pain and right-sided sciatic symptoms without evidence of radiculopathy. He noted that she continued to suffer with these symptoms.[28]
[28]PCB 94
52 He considered that the symptoms were consistent with the injury and considered that her condition was stable.
53 Therefore, following examination all the assessors in early 2011, there was unanimous support for the conclusion that the Plaintiff suffered an aggravation of her degenerative lumbar spine condition at work and that her symptoms related to that condition.
54 Mr Troy reviewed the Plaintiff on 29 June 2010, 21 August 2011 and 23 July 2013. In his later reports he confirms his expressed opinion that any work relationship has now resolved and the Plaintiff’s symptoms relate solely to the progression of the underlying degenerative disease, demonstrated radiologically.
55 Mr Stanley submitted that Mr Troy provides no valid basis for why there would be this change of opinion. He submitted that without that reasoning the Court could not attach much weight to his expressed opinion.
56 He submitted absent that explanation the Court ought to look to other evidence, and in particular, that of the treating practitioner Dr Harrison.
57 Therefore he submitted that the Court ought to find that the pain which Mrs Carey had in 2007, which was accepted by the Defendant as being work related, has been unrelenting since. It would be improbable to suggest somehow that the work relationship has ceased.
58 I accept that submission. Further, I prefer and accept the expressed opinion of Dr Harrison as to causation and the ongoing nature and chronicity of the Plaintiff’s injury and symptoms.
59 Dr Harrison’s expressed opinion is supported by Mr Schofield, Orthopaedic Surgeon. He commented on the aetiology of the Plaintiff’s back pain in his initial report dated 28 June 2012. He stated: "On the evidence provided it is my opinion that there is a direct relationship between Ms Carey's current complaints of back pain and the incident which occurred on 4 May 2007."
60 He reiterates that in his report of 15 July 2013: "It is my opinion Ms Carey's current complaints of back pain are significantly related to her employment at Yooralla." He confirms in paragraph 3 that there is nothing in this examination that has caused him to change his opinion.[29]
[29]PCB 83
61 Overall, I am satisfied that the Plaintiff suffered injury to her lower back related to her employment with Yooralla due to the nature of her employment and in particular, following the incident at work on 4 May 2007.
62 The injury is in the nature of exacerbation of underlying pre-existing degenerative changes in the lower lumbar spine, which had been previously asymptomatic.
63 I shall now move onto Mr Rattray’s second contention which he emphasised was perhaps the more important point. He submitted that the Plaintiff had not discharged the onus of proof and that the Court ought not be satisfied that the consequences of the compensable injury to the low back reached the statutory threshold.
64 He accepted that Ms Carey has retained a capacity for part-time employment albeit on lighter duties. She also undertakes a reasonable level of recreational and social activities. He accepted that she says she does not mow the lawn and is not able to attend to her fernery as she would like. She says she maintains domestic activities more slowly than previously, and that if help is required she asks for help.
65 Mr Stanley submitted that the Court should be satisfied that the Plaintiff has discharged the onus of proof.
66 Overall I am satisfied that the pain and suffering consequences do satisfy the test for serious injury.
67 I accept the Plaintiff’s evidence concerning the consequences of her injury as set out in her affidavit material and her evidence.
68 I accept that her employment, and in particular the incident on the 4 May 2007, caused the onset of significant pain in the Plaintiff’s lumbar spine which has persisted on a chronic and constant basis, with exacerbations from time to time, through to the present.
69 I accept the opinion of the majority of the medical practitioners that that situation is likely to persist.
70 Dr Harrison's records, notes, reports and evidence confirm that Ms Carey receives constant treatment for her pain. She requires significant pain relief medication, and is now required to take a morphine-based medication in the form of Oxycontin, with its attendant side effects, to manage her pain. Dr Harrison documents the range of movement restrictions following her clinical examinations.
71 Ms Carey’s ongoing significant sleep disturbance and significant restriction in a range of domestic and social activities is accepted. She is reliant on both her daughter and her mother to assist her at home with the household tasks.
72 Ms Carey gave evidence in relation to her garden and how it upset her that the garden is not up to scratch because of her inability to maintain it because of her injury.
73 She has restrictions on her sitting and standing. She gave evidence about the difficulties that poses at work. She has retained a capacity to work restricted duties and restricted hours. It is significant that the Plaintiff can no longer work with disabled children as a personal care attendant which she passionately enjoyed. The loss of such an activity means a lot to the Plaintiff, who loved the role and found it personally satisfying. Dr Harrison’s evidence was to the effect that the Plaintiff is struggling with the demands of commuting and working, and this is becoming a feature of her presenting complaints.
74 Ms Carey’s unchallenged evidence was that she had difficulties at the conclusion of the consecutive days working; that is after Wednesday evening and the drive home, and after Friday night and the drive home. She said she stops the car on the way home to do her back exercises. Cars would honk at her and that was embarrassing.
75 I accept Ms Carey’s evidence about her experience of pain and about the extent to which pain interferes with her activities at work, home, socially and recreationally. The consequences of her injury impact greatly and diminish her enjoyment of life. The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[30]
[30]ACN 005 565 926 Pty Ltd v Snibson (supra) at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199]
76 I am satisfied that the injury has impaired the function of the lumbar spine and led to consequences that are permanent in the sense that they are unlikely to change.
77 Overall, I am satisfied that the impairment or loss of bodily function has resulted in pain and suffering which, when judged by comparison with other cases in the range of possible impairment or loss of bodily function, can fairly be described as being more than significant or marked and as being at least very considerable. (See s.134AB(38)(c) of the Act).
78 Accordingly, there will be leave to the Plaintiff pursuant to s.134AB(16) to bring proceedings in respect of injury sustained by her during the course of her employment with the Defendant and in particular on 4 May 2007.
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