Caserta v Normalair Garrett Pty Ltd
[2011] VCC 282
•16 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00687
| SALVATORE CASERTA | Plaintiff |
| v | |
| NORMALAIR GARRETT PTY LTD | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 March 2011 |
| DATE OF JUDGMENT: | 16 March 2011 |
| CASE MAY BE CITED AS: | Caserta v Normalair Garrett Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 282 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - whether the plaintiff recovered from the compensable injury - whether the consequences complained of by the plaintiff were due to age-related degeneration of the spine – whether the consequences to the plaintiff in terms of pain and suffering and loss of earning capacity were serious – whether the plaintiff was capable of full-time work: section 134AB(37)(a) and (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC | Holding Redlich |
| with Ms M Bilhouwer | ||
| For the Defendant | Ms A Ryan | Thomsons lawyers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 22 February 2010 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr A Keogh SC appeared with Ms M Bilhouwer of Counsel for the plaintiff, and Ms A Ryan of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 26-64, and from the defendant’s Court Book ("DCB") pages 10-12: Exhibit A;
•
The defendant tendered its Court Book, pages 1-9; 13-30, and 32-43: Exhibit 1; and
•
The defendant tendered an extract of the clinical notes of Dr Russo, general practitioner: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 20 September 1945 in Sicily. He is now sixty-five years of age. He is a married man with three adult sons.
10 The plaintiff migrated to Australia in 1965. He obtained employment shortly after arriving in Australia in heavy industry. He obtained employment with the defendant as a maintenance fitter and welder in about 1978. He subsequently worked for the defendant for twenty-five years before he suffered the injury which is the subject of this application.
11 The plaintiff was troubled by episodic problems with his lower back. In his affidavit sworn 13 October 2009, he referred to initially suffering injury to his lower back in about 1987. He hurt his lower back again in 1996. To the best of his recollection he made claims against the defendant with respect to each injury.
12 The plaintiff subsequently suffered episodes of pain in his lower back. He referred specifically to episodes which occurred in 2000 and 2002. He sought treatment from Dr Russo, and from a physiotherapist and a chiropractor. Ms Ryan tendered the clinical notes of Dr Russo, commencing with a consultation on 14 August 1995 and running through to a consultation on 24 November 1999.[5] The clinical notes are very difficult to read. There are certainly entries in 1996 for lower back problems; however, I found it difficult to interpret the balance of the clinical notes through 1997, 1998 and 1999.
[5] Exhibit 2
13 Ms Ryan cross-examined the plaintiff regarding his history of lower back pain. The plaintiff said that he saw Dr Russo in about February 1996. He said he was suffering from pain in his lower back, stiffness in the mornings and discomfort in his right leg. He took some time off work, but described it as sick leave. He said that the sick leave that he took amounted to two or three days.
14 The plaintiff said that he suffered lower back pain in 1998 and again saw Dr Russo. The pain extended down to his knees. He did not take any time off work. He self treated using Panadol for pain relief. He also had some physiotherapy treatment.
15 The plaintiff said that the consequences of his prior lower back problems interfered with his capacity to go dancing and undertake maintenance work on his home.[6]
[6] Transcript 7-9
16 I harboured some doubts whether the plaintiff understood what was being put to him during the cross-examination. Mr Keogh conducted an extensive re- examination of the plaintiff from which it became clear that after the plaintiff suffered injury to his lower back on 2 June 2003, the pain he experienced previously had become worse; the pain was continuous; it interfered with his capacity to work; and, in particular, to undertake lifting. He now takes Panamax for pain relief. The dosage is one or two tablets in the morning and one or two tablets in the afternoon if he has severe pain.[7]
[7] Transcript 17-18
17 The conclusion I have reached from the evidence of the plaintiff and from the relevant clinical notes and medical reports is that the plaintiff experienced pain in his lower back from 1996 episodically up to 2 June 2003. There were occasions when he saw Dr Russo for treatment. The treatment included medication, referral to physiotherapy and some chiropractic treatment. The plaintiff had some time off work, but that occurred in about 1996. He did not have any time off work when he suffered the episode of a lower back pain in 1998. He was otherwise able to work uninterrupted and full-time in a physically arduous occupation with the defendant.
18 Apart from the clinical notes of Dr Russo, I was referred to a plain x-ray taken of the plaintiff's cervical, thoracic and lumbar spine and pelvis some time in 2001. The plaintiff was referred to have an x-ray, taken on 1 June 2001, by Dr Sassinis who was the chiropractor who provided the plaintiff with treatment for his lower back. The relevant findings of the radiologist were of mild multilevel spondylytic lipping from L2 to S1 and moderate narrowing of the L5-S1 disc.[8]
[8] PCB 60
The Incident
19 On 2 June 2003, the plaintiff was cutting a heavy steel billet. He described the billet as a block of metal from which cuts were made to manufacture flanges for aircraft.
20 On that day, he was cutting a piece off a billet when it slipped off the surface on which it was sitting. He tried to prevent it from falling, with the result that he was met with immediate severe pain in his lower back and pain radiating from his lower back down his left thigh as far as his knee.
21 I gathered from the plaintiff's affidavit and from other materials in both Court Books that the work which the plaintiff undertook was physically arduous work. It required him to undertake manual work which placed significant stress and strain on his upper body.
The Plaintiff Medical Treatment
22 The plaintiff saw Dr Russo after the incident. He referred the plaintiff to have a number of radiological examinations. The first of those was a plain x-ray taken on 30 July 2003;[9] the second is a CT scan taken on 18 June 2004;[10] the third is another CT scan taken on 26 October 2006;[11] and the last is a plain x- ray of the thoraco-lumbar spine taken on 9 April 2008.[12]
[9] PCB 61
[10] PCB 62
[11] PCB 63
[12] PCB 64
23 Dr Russo was of the opinion that the most likely diagnosis of the plaintiff's injury was lower thoracic facet joint arthropathy, stiffness and ligamentous muscle strain. In relation to whether any part of the medical condition which he diagnosed was related to the plaintiff’s injury on to June 2003, he said the following:
"There is undoubtedly some normal age-related constitutional changes that are occurring in his thoracic and lumbar spine but because of the form of work that he did perform at Normalair and Garrett and the multiple episodes[13] of aggravation occurred over 10 years there would be a major contributing factor to this injury from the work that he performed at his company and also particularly the accident incident that occurred on the 2 June 2003."[14]
[13] I assume this is a typographical error and should read "episodes"
[14] PCB 46
24 Dr Russo then referred to the CT scan which was taken an 18 June 2006. He also referred to the work site assessment undertaken by Dr Poppenbeek, occupational physician.[15] With the CT scan and the report of Dr Poppenbeek in mind, Dr Russo then observed:
"The patient now has a background of degenerative osteoarthritis in the lumbar spine and additional to this he has a contributing work-related injury causing some long-term chronic damage in the thoracic spine and in the lumbar spine at L5, S1."[16]
[15] Dr Poppenbeek was engaged by the defendant to undertake the work site assessment. He did so on 29 July 2003. He provided a report dated 7 August 2003 which is at DCB 10-12. It would appear that Dr Russo was provided a copy of his report
[16] PCB 46
25 Dr Russo then expressed his opinion somewhat differently than he had earlier in his report. He described the injury as an exacerbation of facet joint arthropathy particularly in the thoracic spine; L5-S1 disc narrowing; narrowing of discs in the thoracic spine; and multilevel osteoarthritis changes in the lumbar spine. He then expressed his opinion on causation as follows:
"A lot of these associated work injuries would be aggravated by the
multiple episodes of aggravation that have occurred."[17][17] PCB 47
26 He then added:
"He is at particular risk of developing … an L4, 5 or L5, S1 disc prolapse
with sciatica that may require some form of intervention…" [18][18] PCB 47
27 Dr Russo referred the plaintiff to physiotherapy and hydrotherapy. He had occasionally prescribed him stronger codeine-based pain relievers to control exacerbations of pain. He had also prescribed Celebrex and Mobic which he described as anti-inflammatory medication.
28 The plaintiff endeavoured to continue working despite the injury he suffered on 2 June 2003. Light duties were arranged for him, but the plaintiff essentially described the light duties as the same work he had undertaken every day before 2 June 2003.[19] It was clear to the plaintiff that he would be unable to maintain his employment with the defendant. He was offered a redundancy in about June 2004 which he eventually took.
[19] Transcript 11
29 Subsequently, the plaintiff undertook training as a bus driver. He obtained work as a school bus driver, working the usual school terms. He worked three hours in the morning and three hours in the afternoon, five days per week.
30 Dr Russo was aware that the plaintiff had been made redundant and had re-trained as a bus driver. Regarding the plaintiff's capacity to work, he said the following:
"He will need to remain on modified duties working a maximum of 5-6 hours per day on a part-time basis in the job that suits him as he is presently practising, as a bus driver."[20]
[20] PCB 47
31 Both Mr Keogh and Ms Ryan laid claim to that statement of opinion as supporting the case which they each put relevant to loss of earning capacity. Ms Ryan submitted that it meant that Dr Russo had put his imprimatur on the plaintiff working 5 to 6 hours per day full-time. Alternatively, Mr Keogh submitted that it could only be read in the context of the fact that the plaintiff was working those hours, but during the school term, and the reference to “part-time basis” by Dr Russo was a reference to the fact that the job was limited to driving during the school term.
32 I can see that the statement of opinion is equivocal, but I am more inclined to accept the interpretation given to it by Mr Keogh; however, for reasons which will become plain, it is unnecessary for me to go that far.
33 At present the plaintiff continues to be treated by Dr Russo. He described the plaintiff's present position as suffering exacerbations of pain which would settle down. He considered that the occurrence of pain of that frequency would continue. He referred to the plaintiff using Paracetamol and Panadeine Forte for pain relief. The plaintiff said that he uses Panamax almost daily in varying doses depending on the need to deal with the pain he experiences day to day.
34 I was informed that the defendant no longer pays for the plaintiff's physiotherapy treatment. It would appear that was part of the purpose in the plaintiff being examined by Mr Davie, orthopaedic surgeon,[21] and Mr Sherburn, physiotherapist.[22] They were both of the view that ongoing physiotherapy would serve no therapeutic purpose. However, Dr Russo disagreed. He was of the opinion that the plaintiff would benefit from physiotherapy and hydrotherapy, home-based Pilates and gym and aerobic activities.[23]
[21] DCB 29-30
[22] DCB 25-28
[23] PCB 49
The Injury
35 The defendant did not deny that the plaintiff had suffered a compensable injury. However, Ms Ryan submitted that whatever symptoms the plaintiff now experiences are due to age-related degenerative changes and not to any aggravation which he suffered as a consequence of the incident of 2 June 2003.
36 Ms Ryan submitted that the foregoing is consistent with the opinion of Mr Davie who saw the plaintiff on the 14 February 2005. Ms Ryan emphasised the history obtained by Mr Davie that the plaintiff told him that he did everything expected of him in terms of handyman duties and gardening; that he would go fishing off Rosebud, and could drive a car. Furthermore, that the plaintiff told him that he last had an attack of back pain in December 2004, that is, some two months prior to the date on which he examined him.[24]
[24] DCB 29
37 It was on the basis of that history and a plain x-ray taken on 30 February 2003 that Mr Davie appears to have expressed the opinion that the symptoms then been experienced by the plaintiff were age-related. On examination, it is clear that he found deficits in terms of flexion, extension, lateral flexion and rotation well below the normal range of movement.
38 Mr Keogh submitted that I should reject the opinion of Mr Davie out of hand because it stands alone, and is in stark contrast to other medical opinions.
39 Although Dr Russo’s report dated 17 March 2009 was expressed rather clumsily, which made it difficult for me to easily understand what he was endeavouring to convey, I have concluded that Dr Russo was of the opinion that the plaintiff had a troublesome lower back before 2 June 2003, but that he had suffered an injury as a result of the incident to his lower back. As a result of suffering the injury, the plaintiff was then only fit for part-time casual work as a bus driver.
40 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 27 November 2010 on a medico-legal basis. Mr Schofield had all of the relevant radiology, and all of the relevant reports of medical practitioners and physiotherapists who had examined the plaintiff and who had offered an opinion on the nature of the injury suffered by the plaintiff and whether it was caused by the incident of 2 June 2003. I am left in no doubt that Mr Schofield was very much in the picture regarding the plaintiff's past history of lower back problems, his treatment and the views of other examiners when he turned his own mind to the question of the nature of the injury and causation.[25]
[25] PCB 55
41 Mr Schofield compared the x-ray of 1 June 2001 with the radiology taken subsequent to 2 June 2003. He also reviewed all of the opinions of the other medical examiners. He then took the step of referring the plaintiff to have an x-ray, and then compared the results of it with the other radiology. He concluded that there was significant deflation/degeneration of the lumbosacral disc compared with all other discs which he considered were stable and of normal or almost normal disc height.
42 Mr Schofield undertook a clinical examination which demonstrated tenderness of the lumbar spine, and significant deficits in flexion, extension and straight leg raising. He was of the opinion, based on his clinical examination, that there was evidence of a prolapse of the lumbosacral disc and that the plaintiff may have suffered relatively minor aggravation of the degenerative changes at L4-5 or L3-4.[26]
[26]
43 Dr McInnis was the only other medical practitioner to obtain a comprehensive history from the plaintiff and to undertake a comprehensive examination of the plaintiff and review of the relevant radiology. He found similar deficits on examination as the other medical practitioners who examined the plaintiff. He concluded that the plaintiff showed evidence of generalised spondylytic changes in his lumbosacral spine with an L5-S1 intervertebral disc protrusion.
44 Mr Keogh submitted that although Dr McInnis did not then expressly state that the injury he diagnosed was causally connected to the incident of 2 June 2003, it was nonetheless inherent in his purpose in obtaining a history from the plaintiff of the incident and what the plaintiff said occurred as a result of the incident in terms of injury.
45 Ms Ryan submitted that in the absence of such an expression relevant to causation, that I should do no more than treat the opinion of Dr McInnis as the undertaking of a task which he was set, which was to make an impairment assessment under the relevant AMA Guidelines.
46 Whilst it is true that Dr McInnis did not make an express statement, I reject the submission made by Ms Ryan. It is apparent to me that Dr McInnis undertook a conventional medical examination, and in that context had in mind diagnosing an injury resulting from the incident described by the plaintiff.
47 I have little hesitation in concluding that the plaintiff suffered an aggravation of degenerative changes in his lumbosacral spine and a probable disc prolapse at L5-S1 consistent with the opinions of Mr Schofield and Dr McInnis. Their opinions are not inconsistent with the flavour of the opinion expressed by Dr Russo. However, it is clear that Dr Russo did not come to conclude, nor did he state unequivocally, what injury was caused by the incident of 2 June 2003.
48 Inherent in the conclusions I have reached is a rejection of the opinion of Mr Davie. I think there is something in the submission made by Mr Keogh that unlike the history and examination conducted by Mr Schofield and Dr McInnis, the reference in that regard by Mr Davie is very brief, and so is the history he took from the plaintiff. In any event, the real difficulty I have in accepting the opinion of Mr Davie is the fact that he did not have the benefit of all of the radiology, and was unable to make the comparison which Mr Schofield and Dr McInnis undertook of the radiology pre-and post 2 June 2003.
Serious Injury
49 I propose to turn to the question of loss of earning capacity first, because after examining the plaintiff's evidence and the medical evidence, I have concluded that the plaintiff has established the requisite degree of loss of earning capacity. Therefore, in accordance with Advanced Wire & Cable Pty Ltd v Abdulle (supra), it is unnecessary for me to consider pain and suffering separately.
50 The plaintiff worked for the defendant for twenty-five years. That alone demonstrates that he was a man who not only enjoyed his work but who was also devoted and committed to his employer.
51 The defendant had an obvious corresponding respect for the plaintiff, because in an e-mail dated 16 January 2004 composed by Marcus Proud, a claims officer with QBE Mercantile Mutual, he quotes from an employee of the defendant that it had exhausted every possible avenue of redeployment of the plaintiff, leaving no alternative but to direct the plaintiff to other employment. Furthermore, it refers to the plaintiff as being “stoic” and having an attitude of not wanting to make a fuss.
52 Mr Keogh submitted that I can regard the plaintiff's twenty-five years of employment with the defendant; his attempts to remain employed and do his work stoically without a fuss, and the fact that he re-trained very quickly and then obtained employment as a bus driver as speaking volumes of a man who is a true stoic, and who works in the face of persistent pain, necessitating a daily use of painkilling medication.
53 Mr Keogh then submitted that if I accepted that characterisation of the plaintiff, then there was no reason why I should not accept the plaintiff's evidence that he is unable to undertake the bus driving work beyond school terms.
54 In that respect, the plaintiff gave the following evidence:
Q: “By the time you get to the end of the school term, when the
school holidays are just about to start, how is your back then?---A.
I feel a little bit better because I have a couple of weeks rest, but still I got pain.
Q. So the couple of weeks rest, is that the school holidays?--- A. That's the school holiday, yeah. Q.
How would you cope if you had to work straight through the school holidays, didn't have a break for the school holidays?---
A.
I couldn't do it. Their hours is too long, it's between 10 hours to 12 hours a day."[27]
(sic) [27] Transcript 21
55 In his affidavit, the plaintiff described the product of his attempt to drive a bus full-time. He was unable to do so and reverted to driving part-time on the shifts he is presently undertaking.[28]
[28] PCB 31
56 Mr Keogh called upon Ms Ryan to admit that for the financial year which ended 30 June 2010, the plaintiff earned $29,171.83 gross. In the year to date, that is to 8 March 2011, the plaintiff has earned $19,623.65 and if extrapolated out to a full financial year, would amount to just under $30,000. The admissions were made.
57 In the financial years ending 30 June 2001, 2002 and 2003, the plaintiff earned $54,696, $53,230 and $50,877 respectively. I see no reason why I should not accept the sum of $54,696 as the comparator because subsection (38)(f) calls upon me to make a comparison of the plaintiff's gross income which the plaintiff “is earning or is capable of earning” so I am to look at the plaintiff's capacity. The plaintiff said that he worked overtime.[29] In the context of his usual earnings, with the addition of overtime, I see no reason why $54,877 does not most fairly reflect his earning capacity had the injury not occurred.
[29] Transcript 16
58 In accepting the admission that in the financial year ending 30 June 2011, the plaintiff will earn $30,000 and undertaking a comparison against the sum of $54,696, it produces a percentage comparison of 54.85 per cent.
59 I have no hesitation in finding that the plaintiff is a true stoic. I have no hesitation in accepting the plaintiff's evidence that the work he is doing as a bus driver, working six hours per day during the school term, is all the work that he is capable of doing. I find, therefore, that he is only capable of earning $30,000 gross income for the financial year which will end on 30 June 2011.
60 I find, in the end, that the plaintiff has suffered an injury to his lower back as described by Mr Schofield and Dr McInnis. I find that the injury impairs the function of the plaintiff's lower back, and that the impairment is permanent.
61 I find that the plaintiff has suffered a loss of earning capacity of more than 40 per cent; that the loss of earning capacity is very considerable and is permanent.
Conclusion
62 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
63 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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