Cathie v A D and B H McAlpin

[2011] VCC 1201

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-01700

LEANNE MAREE CATHIE	Plaintiff
v
A D & B H McALPIN	First Defendant
(Trading as KERANG COUNTRY BAKEHOUSE)
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Bendigo
DATE OF HEARING:	28 and 29 April 20111
DATE OF JUDGMENT:	3 May 2011 (Revised)
CASE MAY BE CITED AS:	Cathie v A D & B H McAlpin & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 1201

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with	Arnold Dallas & McPherson
Ms E McKinnon
For the Defendants	Mr A J Moulds SC with	Hall & Wilcox
Ms S Manova
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence proceedings claiming damages both for the pain and suffering and economic loss consequences of an injury sustained by her to her low-back in the course of her employment with the first defendant.

2          It is accepted by the defendants that the consequences of the injury are such that they satisfy the statutory test under the Accident Compensation Act (“the Act”) with respect to pain and suffering, and the issue to be determined by me is whether the plaintiff has proven that she has suffered a loss of earning capacity which is “serious” within the definition of the Act.

3          In the proceeding, the plaintiff relies upon an affidavit sworn by her of 3 December 2009. In addition, she attended and gave evidence viva voce and was cross-examined. Otherwise the parties rely upon the medical reports and sundry documents tendered by them.

4          In her affidavit, the plaintiff deposes to the fact that on 13 February 2007, she suffered an injury to her low-back in the course of trying to lift and move a large wooden pallet.

5          She said that she initially sought treatment with respect to her injury from Mr Paul MacNeish, a physiotherapist, and that a few days after this she tried to return to work but lasted only a few hours. She said she subsequently consulted a general practitioner, Dr Godfrey Williamson, who certified her as being unfit for work until about 16 March 2007.

6          She said that in March 2007, a CT scan was performed which showed that she had injured her low-back, and that shortly thereafter she commenced treatment in the form of acupuncture and massage therapy.

7          She said that in the middle of 2007, she was referred by Dr Spatari, one of the general practitioners at the Kerang Medical Clinic, to Dr Robert Gassin, a musculoskeletal physician, and thereafter she commenced massage therapy through Mr Darin Seabrook of Echuca.

8          She said that as the weeks went by following her injury, she became increasingly frustrated with her situation, and was very keen to return to work; and that on 15 August 2007, she tried to work on light duties. She said that in reality the first defendant was not able to provide her with true light duties, and although she did not depose to this fact, I take it from the way in which her affidavit is structured, that this initial attempt at employment failed.

9          She said that in about November 2007, she returned to work on the basis that she would only perform modified duties for limited hours but that despite her best efforts, she continued to experience difficulties with lower back pain and required regular days off. She said that eventually her condition reached the stage where she had to stop work altogether, and that this occurred in approximately December 2007.

10        In her affidavit, she deposed to the fact that she underwent vocational assessment with an organisation known as O'Bree Occupational (“O’Bree”) and that whilst she participated in job-seeking assistance programs organised by that company, she was unable to find any employment which she was physically able to perform.

11        In her affidavit, she described her condition in the following terms:

"I continue to suffer from constant pain and stiffness in my lower back. The pain varies in intensity and I have good days and bad days, however the pain is always there to some degree. The pain in my lower back also continues to radiate into my buttocks and down my right leg to the level of my right knee. I also suffer from muscle spasms in my low back. The pain that I suffer as the result of the incident, continues to be aggravated by prolonged periods of standing and/or prolonged periods of sitting including driving, as well as various movements such as lifting, twisting, bending, pushing and pulling movements and the like. Sudden movements such as coughing or sneezing also increase the pain, however, from time to time the pain that I suffer will simply flare up for no apparent reason. On those occasions it is a trial to even get out of bed in the mornings.”

12        She said that in terms of ongoing treatment, she relied on high doses of Panadeine Forte:

"I also take Tramal and a medication called Diclofenac which is
prescribed to treat muscle spasm."

13        In the course of her evidence, the plaintiff said that she was presently taking medication in the form of Panadeine Forte and Tramadol. She said that she had recently been trialled on medication in the form of a Norspan patch but that that had been discontinued because of an adverse reaction she had to that medication.

14        The Norspan patches having been discontinued, the plaintiff gave evidence that her Tramadol had been increased from the original dose of 200 milligrams morning and night to the present dose of 300 milligrams morning and night.

15        The plaintiff was asked as to her habit with respect to overtime whilst working for McAlpin. She was asked:[1]

[1]             T 26, L19

Q:	“How often do you work overtime approximately? You're not going to remember every day but about how often?---
A:	Three or four hours a week.
Q:	Was that every week or did it come and go?---
A:	It came and went.”

16        The plaintiff was asked about her return to work programs and discussions that she had with Ms O'Bree in the course of their relationship:[2]

[2]             T 35, L3

Q:	"Did you have a discussion with her, do you remember, about other potential positions as well as the shop assistant job at the bakehouse?---
A:	She tried all the positions, but there was no one around, no one
would employ me, it's only a small town.”

17        This concept was further developed, and the plaintiff was asked:

[3]             T 36, L15

Q:	“Do you think that even if there were jobs in Kerang, that you would be physically capable of doing, you'd never be offered them, is that what you're saying?---
A:	Yes."[3]

18        The following position was put to the plaintiff:[4]

[4]             T 39, L19

Q:	“Ms Cathie advised that she had been speaking to friends recently regarding employment opportunities in the local area, however she had been unable to identify any opportunities for suitable employment. Would that be a correct summary of the conversation you had with him at that time?---
A:	Yes.
Q:	You're the one that knows your back, you're the one that knows what you can do during the day. There's nothing that you can think of, if a job were available to you, doing those duties as described by his Honour and by myself, that would stop you doing that on a part time basis, is there?---
A:	If it's a good day. If it's a bad day, no".

19        It was put to the plaintiff:[5]

[5]             T 50, L6

Q:	“You could work as a tourist information officer, couldn't you, at the local tourist information place, provided you didn't have to lift weights of 4.5 kilograms?---
A:	No. No.
Q:	Ms Cathie, you know Kerang, don't you?---
A:	A little bit of Kerang.
Q:	Are you saying to His Honour that if people came into the tourist information centre and asked you information about where to go locally, what are the good places to see, you would be incapable of telling them that?---
A:	I don't travel around Kerang, never see my own tourist stuff in Kerang I have, no.
Q:	If someone taught you how to do that, and you did know what information to give, you'd be capable of doing it, wouldn't you?---
A:	I'd try.
Q:	You'd have no trouble provided you didn't have to lift weights over 4.5 kilograms or bend, being a ticket seller?---
A:	No, that'd be fine."

20        In the course of the proceeding, criticism was levelled at the plaintiff having regard to her level of cooperation with O’Bree in seeking employment

21        I note that in October 2007,[6] a report from that organisation described the plaintiff as being very keen to return to work.

[6]             Defendants’ Court Book (“DCB”) 27

22        A similar comment was made in March 2008,[7] in which the plaintiff was described as being enthusiastic and committed to the job seeking process and being confident of obtaining employment.

[7]             DCB 35

23        By May 2008 however, Ms O'Bree expressed concern that the plaintiff was not actively engaging in the job seeking process.[8]

[8]             See, for example, the letter by Ms O’Bree and her comments at DCB 42 and 43

24        Having regard to the duration of the plaintiff's incapacity at that time, when considered in the context of the evidence that she gave at transcript 35, namely that she had sought employment but no one would employ her, Kerang being a small town, and taking into account the fact that the plaintiff at this time was receiving no support from her employer which had submitted a job offer to her which did not comply with her current medical guidelines,[9] I do not consider that the issue raised by Ms O'Bree as to the plaintiff's cooperation in seeking employment necessarily reflects badly upon her motivation to find work. Rather, I am satisfied that the plaintiff’s attitude is explained by the factors described in the Ayres Management Report of 27 October 2008 which reports in the following terms:

"Ms Cathie reported that she was motivated to return to work and that she was willing to receive assistance from Ayres Management Services to obtain suitable employment by the NES Program. Ms Cathie advised that she was badly treated when she attempted a return to work with the Kerang Country Bakehouse, and that these experiences had affected her confidence when seeking suitable employment in her local area.”

[9]             DCB 40

25        I now turn to the medical evidence relevant to the plaintiff's present capacity to work.

26        The general practitioner, Dr Spatari, in a report dated 10 September 2009, commented:

“After two years of physiotherapy, hydrotherapy, massages and analgesia it is very unlikely that her symptoms will disappear completely. She might be able to return to clerical type work on limited hours four to five hours a day."

27        The plaintiff’s treating specialist, Mr Gassin, in a report dated 29 April 2009, commented that the plaintiff's back pain was most likely discogenic in origin. (Mr Gassin had commented in an earlier report dated 16 February 2009 that as there was no specific treatment for discogenic pain, he had discussed with the plaintiff the role of medication, namely the use of Panadeine Forte in control of her symptoms and that he had introduced Tramal as an additional medication to help her deal with those symptoms) and opined, as to the plaintiff's capacity for work:

"In my opinion Ms Cathie has a partial incapacity, this is likely to persist
for the foreseeable future."

28        In a report dated 24 June 2010, Mr Peter Moran, an orthopaedic surgeon, commented on the plaintiff's capacity for work:

"I believe she has suffered a serious injury to the lower back as a consequence of the traumatic incident at work in February 2007 and her prognosis for return to employment, even in a part time capacity, is poor."

29        Dr Clayton Thomas, a specialist in consultant rehabilitation and pain management, opined in a report dated 28 May 2010 as to the plaintiff's capacity for work, in the following terms:

"Her work experience has all been physically based. I would accept that she would have a lot of difficulty in working in a capacity that involved the use of her back. I would accept that she would not be able to return to the type of work she did prior to the injury with her pre-injury employer. Within restrictions she could work in a position that allowed her to lift between waist and chest height with no bending, lifting or twisting below waist height or above chest height. Lifting between waist and chest height she could lift up to 5 kilograms frequently and an occasional 10 kilogram lift. Lifting below waist height or above chest height she could do the occasional 5 kilogram lift. Within these restrictions and in an ideal work station where she could alter her posture she could work up to 16 hours per week."[10]

[10]           See the evidence at Plaintiff’s Court Book 82 and 83

30        Mr David Murphy, a consultant physician in rehabilitation medicine, in a report dated 23 March 2010, expressed a very similar opinion to that expressed by Dr Thomas. He opined:

"Her present capacity for work is that Ms Cathie is capable of undertaking work that does not require lifting of more than 10 kilograms and most of the work should be performed between waist and shoulder height. She should not be expected to sit or stand in one position for more than an hour. She should not be expected to be subjected to repetitive jolting of the lumbar spine. In that situation she would likely be able to return to work in a part time capacity up to 15 to 16 hours per week."

31        Mr Rodney Simm, an orthopaedic surgeon, has examined the plaintiff on a number of occasions. His report as to the plaintiff's capacity for work is strikingly similar to those of Dr Thomas and Mr Murphy. In his report of 13 September 2010, he opined:

"I note in the report that her current medical certificate outlines Mrs Cathie to be fit for alternative duties with work restrictions outlined, has no lifting greater than 10 kilograms and no bending. In my opinion 10 kilograms is probably too heavy for Ms Cathie and a more realistic weight limit would be 4.5 kilograms. Following my assessment I regard her as being fit for light, non-physical employment which offers flexibility with static postures. Objects would need to be handled between knee and chest height. I also note that she may have difficulty sustaining full time employment because of her pain levels and high analgesic requirements. I would therefore advise you that initially a return to work in any of the following suitable occupations should be confined to four hours per day, five days per week on a trial basis. Hours could be increased according to tolerance. She has the physical capacity to undertake selected employment in the following occupations; product examiner, product assembler, sales assistant e.g. console operator at a service station, market research interviewer, telemarketer, information clerk, tourist information officer, general clerk, receptionist, ticket seller, out of school care worker." In a further report of 30 September 2010 Mr Simm expressed largely similar views to the ones which I have just referred to.”

32        It can be seen that with the exception that Mr Simm identified particular occupations which, in his opinion, the plaintiff was fit to undertake, the only difference between Dr Thomas, Dr Murphy and Mr Simm as to the plaintiff's capacity for work relates to the hours which they opine which the plaintiff would be able to tolerate.

33        The medical reports to which I have referred, including the plaintiff's evidence, paint a picture of a significant disability. The plaintiff's constant need to resort to significant levels of medication for pain control and the defendants’ concession as to the pain and suffering consequences of the injury attest to this fact.

34        I am satisfied that the medical evidence, and in combination with the plaintiff’s evidence in cross-examination to which I have referred, establishes that the plaintiff does retain a capacity to engage in suitable employment.

35        As to the hours which the plaintiff is capable of working, when account is taken of the various medical opinions on this issue, namely:

(i)	Dr Spatari, who expresses a very uncertain opinion, namely that the plaintiff might be able to perform clerical type work on a limited hours basis, four to five hours a day;
(ii)	Mr Moran, who opines that the plaintiff's prognosis for employment, even in a part-time capacity, is poor;
(iii)	Mr Murphy and Mr Thomas, who opine that the plaintiff has a capacity to work in suitable employment for up to sixteen hours per week;
(iv)	Mr Simm, who opines that the plaintiff has a capacity to work in suitable employment for four hours per day, five days per week on a trial basis and that these hours could be increased according to tolerance,

I find that the opinions of Mr Thomas and Mr Murphy, both of whom are specialists in rehabilitation medicine, and both of whom have opined independently that the plaintiff's retained capacity for employment is such that it would enable her to work a maximum of up to sixteen hours per week, to be the evidence which is persuasive as representing the most probable situation upon this issue.

36        I turn then to the issue as to whether the plaintiff has established that the employment opportunities which she has now by reason of her disabilities are such that no occupation which is reasonably available to her constitutes suitable employment

37        In this regard, the plaintiff relies upon a report of Ms Judith Long dated 25 May 2010. Ms Long considers the various occupations which have been identified by Ayres Consulting in a report dated 17 August 2010 and opines that those occupations do not involve occupations which provide suitable employment options for the plaintiff.

38        In the Ayres Consulting report, a number of occupations are listed and these are asserted as being within the plaintiff's retained capacity for work.

39         As I read this report, the assessor has assumed, in nominating the various occupations, that the plaintiff has a lifting capacity of 10 kilograms. This considerably overstates the true situation which, in my opinion, is represented by the assessments both of Mr Simm and Mr Thomas.

40         Notwithstanding that the adoption of the approach suggested by the author of the Ayres Consulting report of 17 August 2008 in assessing what represents suitable employment for the plaintiff would cast the net of suitable employment over an area which is too wide, when one takes into account that the range of income available to the plaintiff in the employment identified by Ayres has a maximum income of $938 per week (namely that applicable to a product examiner), I am satisfied that the plaintiff has established her entitlement to the leave which she seeks for the following reasons:

• It is agreed between the parties that the figure that I should employ as representing the plaintiff's income from personal exertion pursuant to s.138AB(38)(f)(ii) is $684 per week. Independently of such an agreement, I am satisfied that that would be an appropriate figure to use having regard to the fact that it is the figure documented by the defendant as to the plaintiff's earnings in its claim form;

• Employing this figure and reducing it by 40 per cent yields the figure $410.40 as that which I must compare with the income which is presently available to the plaintiff in the employment which she is suited to undertake pursuant to the provisions of the Act;

• In employment as a product examiner the plaintiff would earn $938 per week. (See the defendant's statement of calculation of loss of earning capacity dated 28 April 2011 which lists all the relevant occupations which are contended by the author of the Ayres Consulting report of 17 August 2008 as being within the plaintiff’s present capacity);

• A wage of $938 per week may be relevantly converted to an hourly rate of $24.68;

• Assuming that the plaintiff is fit to engage in that employment, about which I have some doubt for the reasons I have previously expressed, were the plaintiff to work for the maximum period which I am satisfied she will be fit to engage in suitable employment, namely sixteen hours per week, a weekly income of only $394.88 would be available to her.

41 Given that I am satisfied that the plaintiff has established the requirement imposed by s.134AB (38)(e) of the Act, I propose to make an order granting the plaintiff the leave which she seeks and I will hear the parties both as to the term of the order and the issue of costs.

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