Chatman v Eastern Health
[2014] VCC 1518
•8 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-0144
| MELISSA JANE CHATMAN | Plaintiff |
| v | |
| EASTERN HEALTH | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 15 August 2014 | |
DATE OF JUDGMENT: | 8 September 2014 | |
CASE MAY BE CITED AS: | Chatman v Eastern Health & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 24 September 2014] | [2014] VCC 1518 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity – referred pain – aggravation – credibility
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Petkovski v Galletti [1994] 1 VR 436; Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave granted to the plaintiff to issue common-law proceedings against the defendants pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering and loss of earning capacity with respect to the physical injury she suffered in her employment with the first defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr N J Dunstan | Slater & Gordon |
| For the Defendants | Mr I S Gourlay Ms S Griffin (Solicitor) appeared to hear judgment | Hall & Wilcox |
HIS HONOUR:
1 In this matter of Ms Chatman, Mr Mighell QC appeared with Mr N J Dunstan and opened the matter and indicated that it was an application under s134AB of the Accident Compensation Act 1985 herein after “the Act”. Mr Dunstan appeared today. For the Eastern Health & Ors, being the defendants, Mr I S Gourlay appeared on the application, instructed by Ms Griffin who appears today.
2 The particulars of injury relied upon were parts (a) and (c) of the definition of “serious injury” in ss(37). The claim was for both pain and suffering and loss of earning capacity consequences. The body part identified was that of the neck.
3 The plaintiff tendered exhibits A to R, and the defendants tendered exhibits 1 to 11. Mr Mighell tendered a written submission and spoke to such submission, and Mr Gourlay submitted orally.
4 In response to Mr Mighell’s opening, Mr Gourlay submitted that the shoulder was not sufficient to produce a serious injury. The issue of causation was not in issue. The fundamental issue, as posed by Mr Gourlay, was whether Ms Chatman’s injury and its consequences would pass the aggravation test as detailed in R J Gilbertsons Pty Ltd v Skorsis,[1] where the then President Winneke identified the process and referred to Petkovski v Galletti,[2] and indicated the process[3] that should be adopted.
[1][2000] VSCA 51
[2] [1994] 1 VR 436
[3]Detailed at 444
5 The first issue for determination is my assessment of the credit of the plaintiff. I accept the submission of Mr Mighell, that the plaintiff gave evidence in an unequivocal manner and presented as an honest witness. The plaintiff was strongly tackled by Mr Gourlay on this issue. Mr Gourlay submitted that her credit was destroyed, and that I should not accept her evidence without corroboration, that she had given no relevant history to her treating practitioners and medico-legal practitioners of any medical condition or treatment to her neck, prior to January 2009. In particular, Mr Gourlay referred to Mr Moran’s reports of May 2013 and July 2014 and Dr Horsley’s report of June 2011. Mr Gourlay relied, in particular, upon Mr Moran’s reports, exhibits P1 and P2 respectively, where he said that, when asked, the plaintiff had in fact positively reported that there was no neck history.
6 I did have concerns, given that the plaintiff is, and was, a Division 2 certified nurse. The plaintiff, in medical consultations, gave no evidence of her medical history in the period May 2004 through to June 2008, when she had reported neck pain and referred pain into her left shoulder and down her left arm, and had received osteopathic treatment from a Dr Israelson, including therapy, x‑rays of neck in 2004, taping up of the left shoulder and a form of acupuncture involving the use, apparently, of some 14 needles, with a CT scan in fact undertaken on 5 July 2005, which disclosed disc protrusion on the left side at C6-7, also treatment from a myotherapist, a Kerry Hage, who apparently administered the needle therapy.
7 Indeed, in cross-examination, Mr Gourlay took the plaintiff through the clinical notes in this regard, being that of the osteopath[4] and the clinical notes of the general practitioner.[5] Tendered was the CT scan taken on the 28th day of June, 2005,[6] and the osteopath reports.[7] Further, in exhibit A1, that is the plaintiff’s affidavit which accompanied her original statutory application, affirmed on the 13th day of September 2011 and tendered, there was no reference to any such history.
[4]Exhibit 8
[5]Exhibit 9
[6]Exhibit C1
[7]Exhibits L1, L2 and L3
8 In subsequent affidavits, firstly, the 5th day of April 2013, the plaintiff attested to leaving out the history on the basis that she did not wish to harm her case.[8] Then, in an affidavit of the 1st day of August 2014,[9] she suggested that she had not referred to such history as it was irrelevant as the prior matters were not such as to cause her to lose time off from work, and, of course, had occurred a number of years before her work accident.
[8]Exhibit A2
[9]Exhibit A3
9 In the final affidavit,[10] which was sworn on 14 August 2014, Ms Chatman submitted that the affidavit of 5 April 2013 was simply incorrect, that she did not fully understand what she was signing at the time, and in fact had signed it on legal advice. She further stated that actually the reason why she had not referred to such pre-accident neck history, being the histories that I have referred to, was that she had actually forgotten such history.
[10]Exhibit A4
10 In cross-examination, when pressed on this matter by Mr Gourlay, Ms Chatman said that when she signed exhibit A2 she had apparently remarked to her solicitors that paragraph – that is paragraph 24 – was actually wrong, but had been advised by her solicitor to sign the affidavit irrespective. Neither Counsel sought to take this matter further, either in cross-examination or in re-examination.
11 The plaintiff said in cross-examination that in fact the only reason she is now able to remember the pre-2009 history, in regard to her neck, is from what she has read from the clinical notes of the osteopath and the general practitioner. Indeed, she stated that she has no memory of the CAT scan of the 5th day of July 2005 or being advised of such results or of the x-rays in June of 2005, showing degeneration and stenosis at the C6-7 level.
12 Mr Gourlay submitted that such oral evidence was on its face quite inconsistent with what was affirmed at paragraph 6 in exhibit A3, that is the affidavit affirmed on the 1st day of August 2014. To say the least, Mr Gourlay was correct in submitting that there was a “tension” between the affidavits, which he in fact submitted to the Court had still not been satisfactorily explained by the plaintiff in her evidence, during the hearing.
13 In this regard, Mr Mighell submitted that the plaintiff had on no occasion sought to embellish or exaggerate her claim. Further, he submitted in the actual circumstances where between, that is, July 2006 and January 2009, there was only one attendance upon her general practitioner where the neck was referred to and in that period the plaintiff needed no medical treatment or time off work, then the explanation given by the plaintiff, that is that she had forgotten such history, should be accepted by the Court.
14 Mr Mighell submitted to the Court that Ms Chatman would have been ingenuous, indeed, if when she first attended the neurosurgeon, that is some five weeks after the work accident of January 2009 (see Exhibit E1 the report of the neurosurgeon Malham of 6 March 2009) had she been engaging, from that early time, in a plan, or a path, of obfuscation.
15 The CAT scan of 13 March 2009 undertaken, at the request of Mr Malham[11], demonstrated degenerative change described as pre-existing at C5-6 and at C6-7, with a new feature of a disc bulge at C5-6. Of further assistance in this regard was that the two medico-legal surgeons of the parties were provided with the additional pre-accident history, which they did not have before providing their reports.
[11]Exhibit C3
16 Subsequent to being provided with this material, Mr Moran, in his report of 4 August 2014,[12] noted that there has been limited symptomology reported in the three years prior to the neck accident, and accepting the plaintiff’s complaints of symptomology post-accident, Mr Moran dismissed any pre-existing degenerative condition as having a role in the post work accident incapacity. He was, it should be pointed out, in possession and had been provided at this stage with the CT scan of June of 2005.
[12]Exhibit P3, Plaintiff’s Court Book page 193
17 Dr Baker, who also was provided with additional material, however remarkably, as the defendants had the actual earlier x-ray of 28 June 2005,[13] such was not provided to Dr Baker for this further opinion. In Exhibit 2E, Dr Baker, who in his report of May 2014, had the osteopathic history provided, prior to 2009, was of the view that it was, to use his words, “possible” that the pre-existing condition could have progressed to a condition which required operative repair.
[13]Exhibit C1
18
Credit in these applications is vital. See the case of
Allsmanti Pty Ltd v Ernikiolis,[14] as referred to by Mr Gourlay, and also the determination in Papamanos v Commonwealth Bank of Australia.[15]
[14] [2007] VSCA 17, paragraphs [42] – [43]
[15][2014] VSCA 167
19 I have, indeed, been concerned with the plaintiff’s answers given in cross-examination and as affirmed by her in her affidavits and finally given in evidence to this Court, of her having no memory of such medical history, albeit her professional training. However, taking into account the totality of her evidence, in particular, the severity of the symptoms post the work injury, the necessity for extensive surgery thereafter and of the submissions, I find that I reject the attack on Ms Chatman’s credit.
20 Mr Gourlay accepted that if I accepted the plaintiff as a credible witness and I was satisfied that the requirements, mentioned earlier in regard to Petkovski v Galletti[16] as to aggravation were satisfied, then he did not wish to make any further comment as to the part (a) aspect of the application.
[16]Supra
21 I would formally indicate that having analysed all the medical exhibits, I accept the submission of Mr Mighell as outlined in paragraphs 7 through to 9 as to the description and the identification of the workplace injury which occurred as a result of this accident, as detailed in paragraph 10. Given such acceptance, I find on the balance of probabilities that the injury and aggravation injury of 13 January 2009 has produced an organic impairment and a loss of bodily function of the plaintiff’s neck. I find such impairment to be permanent and I find such impairment and function of the neck, as caused by the injury and the aggravation, is likely to last and impact upon the plaintiff for the foreseeable future.
22 I find on the evidence of the plaintiff and all the medical evidence, that I have assayed that the physical consequences caused by the injury and aggravation have had a particular deleterious impact upon the plaintiff, causing pain and suffering and loss of enjoyment of life, in particular, in regard to her ability to utilise her bodily function to carry out her normal daily activities, her employment and home duties.
23 In assessing such impairment objectively, in accordance with s134AB(38)(b) and (c), I find that the consequences of her pain and suffering and the impairment upon the plaintiff’s enjoyment of life so caused are certainly more than significant or marked and are very considerable and I therefore find the impairment of bodily function of the plaintiff’s neck to be a permanent serious impairment.
24 Coming then to the part (c) injury. In this regard, Mr Gourlay submitted that such alleged injury could not meet the test as detailed in s134AB(37) or (38)(b) and (d). There was no dispute that as diagnosed by the treating psychiatrist, Professor Danodoran,[17] and further by Dr Sheehan on behalf of the defendants,[18] the plaintiff had suffered, and suffers, from a Chronic Adjustment Disorder as a result of this work injury, with Depressed Mood. She was treated from May 2012, on reference from her general practitioner, and as at December 2012, required ongoing treatment.
[17]See exhibits J1 and J2
[18]See exhibits 3A, B and C
25 On review by the Professor in July 2014, the plaintiff was still anxious, lacking concentration and worried by her predicament as a result of her accident. The major issue however, he found, was the persisting physical pain. The medication being received at that time was for physical symptoms only. The Professor was of the view that her medical and emotional state was dependent upon the physical pain and its management. The Professor maintained his view that she was not suitable for employment from a psychiatric point of view or for her pre-injury employment.
26 Dr Sheehan first reviewed the plaintiff for the insurers in February 2012, and in Exhibit 3A, a report of May of 2014, he opined that her psychiatric symptoms were of a mild degree and would be non-impacting as to work capacity. The doctor diagnosed a Chronic Adjustment Disorder as mild, albeit chronic. Significantly, he saw this disorder as being totally secondary to the neck injury. In an update report,[19] of June of 2014, he maintained such diagnosis.
[19]Exhibit 3C, Defendants’ Court Book page 71(b)
27 Albeit the chronic nature of her condition, I am not satisfied to the degree required that this injury and its consequences meet the hurdle set by the statute and the relevant law. I consider, upon analysis of the plaintiff’s affidavits and her evidence in cross-examination, that such symptoms, while primarily reactive to the physical injury, when taken into account for the purpose of paragraph (c) of the definition of serious injury are not of the required severe categorisation for a determination to be made in her favour in regard to such injury. I therefore reject the application for a serious injury determination in regard to her psychiatric injuries.
28 We then come to the question of economic loss. This is quite a difficult consideration given the unreal restrictions imposed on the Court by ss(38)(h) of s134AB of the Act. However, there is no dispute between Counsel, that the physical consequences alone of this workplace injury are such as to make the plaintiff unsuitable for her pre-accident employment. In considering her remaining capacity for employment, that is for alternative employment, I am, of course, required to take into account ss(38)(b), (e), (f) and (g).
29 I have found that it is not necessary to solve the dispute between Counsel based upon the terms of ss(38)(e). The plaintiff is now aged 50 and, as detailed, she had a good work history, and subsequent to the work injury had sought to return to her actual employment with the first defendant, and thereafter, when that was not possible, did seek and obtain alternative employment.
30 As the plaintiff remarked in her affidavit,[20] she is a single mother and would, if she could, obtain alternative employment. Of necessity she is in receipt of the disability pension. I find that the evidence demonstrates that the plaintiff is well motivated as to work and would return to the workforce if such was physically possible. To that extent, I accept the submission of Mr Mighell, and reject the suggestion of Mr Gourlay, that following her last operation in October of 2013, she in effect “downed tools”.
[20]Exhibit A4 at paragraph 8
31 Coming then to analyse the medical material. As to the treaters, I go firstly to the general practitioner. The first report to which I was to refer to is exhibit D9, a report of 14 August 2014.[21] After the latest operation, his view was that her restriction is permanent. The general practitioner was of the view that the plaintiff has no work capacity due to the residual pain and restriction.
[21]Plaintiff’s Court Book page 71
32 The operating neurosurgeon, Mr D’Urso, in his reports had to effect a profound and complete replacement of the earlier fusions, undertaken in the earlier operations, upon the cervical spine. Such fusion now covers the area C4-7, that was the last operation undertaken in October 2013. The seriousness of such operation cannot be underestimated. In exhibit F4,[22] Mr D’Urso opines as to the future of the plaintiff, that she will be prone to progressive degeneration at the level C3-4 and C7-T1, that is the adjoining levels, that the fusion has been technically successful throughout the area C4‑7; however, the plaintiff is left with a permanent restricted capacity, for all employment, and certainly is totally prevented from carrying out her pre-accident employment.
[22]Plaintiff’s Court Book page 89
33 A medical report was obtained by the plaintiff’s solicitors from Dr Horsley, occupational physician. Such report was actually obtained prior to the last operation.[23] Dr Horsley was of the opinion that the plaintiff had a capacity for part-time administrative duties, to the extent she prognosticated that the plaintiff would be able to work some three days per week to the extent of four hours on each of such days.
[23]Plaintiff’s Court Book page 165
34 Mr Moran, who I have already referred to, the orthopaedic surgeon, in exhibit P2 and P3 in the medico-legal report of August 2014, said, as to her employment capacity as to any possible alternate post-injury employment, she was limited in finding and persisting with suitable employment within her limitations. Mr Moran was of the view that the plaintiff had limitations in lifting, pushing, putting or maintaining a static posture in activities such as computer work.[24]
[24]Plaintiff’s Court Book page 192
35 Coming then to the defendants’ medico-legal specialist in occupational medicine, being Dr Baker, in a report of May 2014,[25] he accepts that there is permanent impairment of the neck; however, was of the view that with an appropriate ergonomic setup, that is a work setup, the plaintiff could do part-time alternate tasks, provided there were regular breaks and change of position. The doctor was of the view that she was capable of operating an accounting-based computer operation within such a regime, despite being advised by the plaintiff in the history he obtained of her difficulty with the MYOB business program and other alternative employment.[26]
[25]Exhibit 2E, Defendants’ Court Book page 31(a)
[26]Defendants’ Court Book page 31(f) – (g)
36 Despite the vocational assessment reports and the task analysis reports relied upon by Mr Gourlay, being exhibits 4, 5 and 6, I find after analysing all of the medical material and considering all of the evidence before the Court, that whatever those reports may propose as theoretically possible for the plaintiff, that the plaintiff’s capacity for any alternative employment has been dramatically reduced. Indeed, I find the question really is whether in reality, from a physical point of view, she has any retained capacity for suitable employment at all.
37 I am satisfied that any residual capacity which Ms Chatman may have is minimal, and is at best a capacity for part-time employment of less than 12 hours per week. I am further satisfied that the position is permanent, and the plaintiff, owing to her physical condition, is not a suitable candidate for retraining, which could improve either her capacity for employment or the range of alternative jobs which may be available to her.
38 Accordingly, I am satisfied that the plaintiff has in reality no employment capacity and if somehow she was able to obtain part-time work for up to 12 hours per week, then on both sets of figures presented to me, the plaintiff would suffer a financial loss of 40 per cent, or more of that which was available to her, but for her injury, and that such loss would be for the duration of her working life.
39 In assessing such impact objectively and in accordance with ss(38)(b) and (c) I find that the consequence of her loss of earning capacity is certainly more than significant or marked and is very considerable, and I find such impairment to be a permanent, serious impairment.
40 Hence, as a result of the injury and aggravation which occurred at the plaintiff's work with Eastern Health on the 13th day of January 2009, the plaintiff suffered a “serious injury” as defined by s134AB(37) of the Act and I grant leave pursuant to s134AB(16)(b) of the Act for the plaintiff to commence proceedings to recover damages for pain and suffering and loss of earnings in respect of such injury, and I so order.
- - -
0
3
0