Charles v Victorian WorkCover Authority
[2016] VCC 1003
•20 July 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY LAW COURTS COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05921
| SHELLEY CHARLES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 7 July 2016 | |
DATE OF JUDGMENT: | 20 July 2016 | |
CASE MAY BE CITED AS: | Charles v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1003 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower back – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the work injury on 5 August 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P Jens QC with Ms M Tait | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by the plaintiff in the course of her employment with her employer, the Moorings at Metung Pty Ltd (“the Moorings”), on or about 5 August 2013.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the lower back.
6 The plaintiff relied upon two affidavits sworn by her on 4 August 2015 and 3 June 2016. The plaintiff was cross-examined. I have not summarised the affidavits and the further evidence the plaintiff gave; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence.
7 I have read all of the tendered material.
The issue
8 Counsel for the defendant informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
Credit
9 The plaintiff’s credit was not in issue. The plaintiff answered questions directly, gave her evidence without embellishment and appeared straightforward in her presentation. She made concessions. In fact, counsel for the defendant submitted in relation to the plaintiff’s credit, that it was rare to have a more frank plaintiff and accepted her as a witness of credit.[1] I formed the opinion that the plaintiff was a genuine and credible witness.
[1]Transcript (“T”) 21, L27-30
Analysis of the evidence
10 It was not in dispute between the parties that the plaintiff suffered a work-related injury to her lower back, namely a frank disc prolapse of L4‑5.
11 All medical witnesses agreed that the plaintiff suffered a disc prolapse at L4‑5: Her injury was variously described as:
· central disc protrusion at L4‑5;[2]
[2]Associate Professor Brazenor
· discogenic back pain on the basis of disc protrusion at the L4‑5 with posterior displacement of the left L5 nerve roots;[3]
[3]Mr Kossmann
· a mechanical back pain with no clinical evidence of radiculopathy;[4]
[4]Dr Elder
· a soft-tissue disc prolapse in the low back region[5]; and
· a left-sided L4‑5 disc prolapse.[6]
[5]Mr Buzzard
[6]Mr Dooley
12 Prior to the work injury, the plaintiff’s evidence was that she had from time to time experienced pain in her back whilst doing the work for the employer.[7] That pain usually resolved with rest. She received no treatment for the back pain and still engaged in a very active life. I accept the plaintiff’s evidence that the back pain she now suffers is as a result of her injury at work on 5 August 2013.
[7]Plaintiff’s Court Book (“PCB”) 15
13 However, I must make the assessment of the plaintiff at the time of hearing the application.
14 The current medical evidence was that expressed by the plaintiff’s general practitioner, Dr Tom Alwyn; Mr Thomas Kossmann and Mr Dooley, orthopaedic surgeons; and Mr Buzzard, general surgeon. I accept the medical evidence is that the plaintiff suffered a disc prolapse at the L4‑5.
15 The issue is whether the consequences of the injury satisfy the statutory test. I will examine the consequences to this plaintiff in turn.
Pain
16 The plaintiff’s evidence is that, as a consequence of her work injury, she continues to suffer constant low-back pain which varies in intensity. She has pain going down both her legs, which was usually one or the other but not both. Her symptoms are made worse by activities, particularly those that involve placing even a moderate strain on her back. She suffers pain if she sits or stands for too long.
17 The plaintiff reported pain to the medical witnesses, which she described as “a constant, ongoing, dull, aching pain in the lower limb region”.[8] Her best description was “it is as though she has a menstrual cycle all year”.[9] She notes intermittent lower limb pain. If her lumbar spine is bad, then her lower limb pain is worse.[10] She said some of her symptoms have improved but have now plateaued. All doctors accepted the plaintiff’s complaint of pain and said that she will continue to suffer pain into the future.
[8]Mr Dooley at Defendant’s Court Book (“DCB”) 40
[9]Mr Dooley at DCB 40
[10]DCB 40 and DCB 31; PCB 34
Treatment
18 The plaintiff’s evidence is that her treatment is limited to occasional visits to the general practitioner. Since March 2016, when she started her new job as a trainee receptionist, she no longer attends her general practitioner as frequently as she no longer requires certificates. Currently, she takes either Nurofen or Panadol Osteo, over-the-counter medication, four to six tablets per day on most days. The plaintiff’s evidence is that the medication does not give her much relief and as such she limits her use.
19 She continues to follow Mr Brazenor’s, neurosurgeon, recommendation of walking regularly for at least half-an-hour every day and to rest in a supine position.[11]
[11]T3, L16-19
20 Dr Alwyn, general practitioner, confirmed that the plaintiff is on a lying/walking program as recommended by Mr Brazenor. Her general practitioner said the plaintiff was trialled on Lyrica for neuropathic pain, which failed to make any difference, so it was discontinued.
21 As to the future, Mr Kossmann said the plaintiff will require conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possible acupuncture. He said that should the plaintiff suffer from a catastrophic disc prolapse, she may require surgery but he could not say if and when this may occur.
22 Mr Dooley said catastrophic disc prolapse occurs very occasionally. He did not consider the plaintiff is at a greater risk of sustaining such a disc prolapse than the next person. Based on the evidence of Mr Kossmann and Mr Dooley, I accept that there is no evidence that the plaintiff will suffer a catastrophic disc prolapse. Such disc prolapses occur very occasionally. If it occurred, she may require surgery.
23 In respect to treatment, Mr Dooley thought it would amount to self-management. If she suffered acute exacerbation of pain, she would require conservative treatment of physiotherapy and osteopathy.
24 Associate Professor Buzzard thought it reasonable for the plaintiff to continue with her present treatment of oral analgesics and light medication, as well as self-administered exercising of walking daily for 30 to 45 minutes.
25 I accept that the treatment the plaintiff currently undertakes is conservative and consists of over-the-counter medication, which is of limited use according to the plaintiff. She takes medication daily of between four to six tablets. She currently walks 30 to 45 minutes for six days of the week. All doctors accepted that her treatment was conservative. No medical witness suggested her current treatment was inappropriate.
26 The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[12] where she said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[12](2007) 17 VR 592 at paragraph [199]
27 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[13]
[13](2011) 31 VR 100 at paragraph [91]
28 I accept that the plaintiff continues to suffer pain as a result of the injuries she suffered at work and takes an appropriate level of medication. There is no suggestion by the doctors that her treatment will vary. I accept that the treatment and medication the plaintiff takes is a consequence I can take into account. Applying the comments made by the Court of Appeal in Kelso as to pain for this plaintiff, I accept the consequence of pain and treatment is in the mid to high end of the range.
Restrictions and limitations on activities of daily living
29 The plaintiff told the Court that she continues to have limitations and restrictions imposed upon her as a result of her work injury. Activities that involve bending, twisting or lifting and walking over uneven ground, stairs and slopes are likely to cause worse pain. She can kneel and squat so long as she can hold onto something but even then she tries to avoid it. If she does not have to lift from ground level, she can handle weights of 5 to 10 kilograms. She cannot carry such weights far. Lifting from ground level is problematic.
30 The plaintiff reported these restrictions to the medical witnesses. Mr Kossmann accepted the plaintiff could not walk for long distances on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat, or carry heavy items weighing more than 5 kilograms. He said this was for the foreseeable future. These restrictions were supported by the plaintiff’s general practitioner, Dr Alwyn. Mr Buzzard imposed a restriction on the plaintiff of not lifting weights in excess of 20 kilograms.
31 I accept that the plaintiff has restrictions upon her activities as outlined in detail by Mr Kossmann. I accept that this is a consequence I can take into account and is in the middle of the range.
Arts and craft
32 The plaintiff’s evidence is that she has a longstanding passion for arts and crafts, which is a passion shared by her family. In particular, she enjoys making cards and scrapbooks.[14] She told the Court that she also enjoyed her hobby of making mosaics, which involves breaking up tiles and using the broken tiles to make a pattern either on boards or objects, for example a pot plant.[15] Prior to her work injury, she would spend approximately 10 hours per week engaged in these craft activities.
[14]PCB 15 – 16
[15]T16
33 Since her injury, she spends two or three hours on arts and crafts if she is lucky. The reason she is now restricted in pursuing this passion is that she cannot sit for too long, which she finds frustrating. This activity involves bending, which is now very limited for her and causes her pain. The plaintiff said at times she gets teary because she is so unproductive.
34 I accept that as a consequence of her work injury, the plaintiff can still undertake but is significantly restricted in arts and crafts work, in particular card-making, scrapbooks and making mosaics. I accept this is a consequence I can take into account and is in the middle of the range.
Gardening
35 The plaintiff’s evidence is that, prior to her work injury, she loved gardening with her husband on the weekend. They live in a property which has a 3‑acre garden, which included a vegetable patch, orchard, garden around the house and lawns. She was proud of her garden and enjoyed the creative aspects involved in gardening. Before the accident, she did the weeding, trimming and tending to the vegetable patch.
36 Since the injury, the plaintiff’s husband is responsible for the 3 acres of lawn and garden. He does the gardening, mowing, Whipper-Snipping, pruning, digging, weeding and mulching. The vegetable garden was once large and looked after by the plaintiff but no longer exists. Now, bending and twisting causes the plaintiff pain. She feels useless. The fact that her husband is now responsible for the gardening causes friction between them.[16] While she loves her garden, it is not a product of her creativity.
[16]T17 L31
37 I accept that this is a consequence which I can take into account and is in the middle to high end of the range.
Recreational activities
38 Prior to the work injury, the plaintiff led a very active life. She enjoyed bike riding, long walks, playing and walking her dog, and playing with the children in her family. These activities are now restricted because of the pain she suffers and her reduced capacity for bending, turning and sitting for extended periods of time. She has difficulties walking for long periods, bike riding and walking and playing with her dog, a bull terrier, who is a very strong and wilful beast. Now, her husband walks the dog and she is left to walk by herself.
39 I accept that these are consequences which I can take into account and are at the middle to high end of the range.
Domestic duties
40 The plaintiff’s evidence is that, prior to her work injury, she was houseproud. Now, she struggles with domestic duties at home. She breaks up the housework into small lots but on occasions, her domestic duties cause her grief, which results in extra pain. She cannot perform some of the duties she did before such as high dusting and cleaning the range-hood or skirting-boards. She occasionally gets some assistance from her husband with vacuuming and the dishes but his capacity for these domestic duties are limited because he is responsible for maintaining the garden.
41 Baking was also a pleasure for the plaintiff prior to her work injury. She would spend all day baking and then freeze the food. Now, she is restricted because of the bending, reaching and lifting that baking requires.
42 I accept that the plaintiff’s domestic duties are affected by her work injury and that this is a consequence which I can take into account. I accept this is a consequence in the middle of the range.
Depression
43 The plaintiff’s evidence is that she suffered from long-term depression prior to the work injury, which related to her family. However, in re-examination, she told the Court that her depression had improved slightly but had shifted from being about her family to about her work injury.[17] She reported this to a number of the medical witnesses. I accept this is a consequence I can take into account but it is at the low end of the range because of the evidence that she suffered depression prior to the work injury.
[17]T18, L17-19
Sleep
44 The plaintiff told the Court her sleep is affected by her work injuries. She sleeps poorly and is aroused by pain. As a result, it is common for her to be fatigued during the day. The plaintiff reported poor sleep to a number of the medical witnesses. I accept that sleep is a consequence which I can take into account and is in the lower to middle of the range.
Family
45 The plaintiff is a thirty-nine-year-old woman. She said she is thinking about having her own children and is anxious about her capacity to handle pregnancy. Furthermore, she is worried about her capacity to care for infants and children, given her back condition. I accept this is a consequence I can take into account; however, it is at the low end of the range, as the plaintiff’s concerns are not supported by the medical evidence before me.
Work
46 The plaintiff’s evidence is that, since she completed schooling up until Year 11 at Monbulk Secondary College, she has enjoyed consistent employment performing physical work.
47 The medical evidence is that she is no longer suited to the physical work she had principally undertaken before. However, reception work would be suitable as she can stand and sit as required, change positions and move about.
48 To the plaintiff’s credit, she has retrained. She has spent a number of years seeking to obtain suitable employment. Currently, she has a traineeship to enable her to qualify for reception work. This is a twelve‑month contract working Mondays to Fridays at Natural Health Centre, Bairnsdale, providing reception assistance to a number of practitioners working at the Centre. She is paid $16 per hour and works 38.5 hours per week. She finds the work tiring and is having difficulty keeping up with her duties at home as a result.
49 I accept that as a consequence of the work injury, the plaintiff is now restricted in the type of work she can perform. She can no longer stand on her feet all day working in retail as a shop assistant, which she had done in the past. She can no longer do physical work, in particular cleaning, which is the type of work she was performing at the time of her work injury. I accept that this is a consequence in the middle of the range.
Conclusion
50 The plaintiff is aged thirty-nine and as such she is relatively young. I accept that she will experience pain and restrictions for the rest of her life.
51 I accept the plaintiff has suffered the abovementioned consequences, which are current and ongoing, and which are supported by her evidence and the medical evidence.
52 Based on the evidence, I am satisfied that the plaintiff was involved in a work injury which, to this plaintiff, resulted in her experiencing a disc prolapse of L4‑5. The medical evidence is that her condition is guarded and there is no suggestion that there will be any improvement in the future. The plaintiff has suffered since the time of the injury in August 2013. I accept the medical evidence is that the plaintiff’s physical condition is for the foreseeable future. Accordingly, I accept her condition is permanent.
53 Taking all of the evidence into account, namely, the plaintiff’s experience of pain, treatment, restrictions and limitations on her activities of daily life, the limitations on arts and craft activities, gardening, recreational activities, domestic duties, sleep and work, I am satisfied that the consequences to the plaintiff can reasonably be described as “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. The plaintiff has lost her capacity to work in physical jobs. Now she is limited to more sedentary work. She suffers pain, which will be permanent.
54 In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of the evidence. I take into account the plaintiff’s age of thirty nine years, and the fact there is unlikely to be any improvement.
55 I accept that the plaintiff has a physical condition which has consequences to her that, when judged by comparison with other cases in the range of possible impairments, can be fairly described, as at the date of hearing, as “at least very considerable” and certainly more than “significant” or “marked”.[18]
[18]Humphries & Anor v Poljak [1992] 2 VR 129
56 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the work injury on 5 August 2013.
57 I will hear the parties on costs.
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