Cook v Karden Disability Support Foundation
[2015] VCC 823
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06437
| MICHELLE LOUISE COOK | Plaintiff |
| v | |
| KARDEN DISABILITY SUPPORT FOUNDATION | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 17 June 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Cook v Karden Disability Support Foundation & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 823 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – compensable injury to the neck and right shoulder conceded – whether the pain and suffering consequences of the impairment of function of the plaintiff’s neck and right shoulder can be characterised as being “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff has leave to commence a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B E Walters QC with Mr K D Mueller | Saines & Partners Pty Ltd |
| For the Defendants | Ms F A L Ryan with Mr P A Scanlon QC | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 The plaintiff is forty-six years of age. She was born in September 1968. She lives in a domestic partnership. She has four children, aged 26, 24, 19 and 11 years.
2 The plaintiff was educated at the Preston Technical College in Melbourne and at Albury High School. She completed Year 8 at the Albury High School before moving back to Melbourne. It would appear that she then left school. She subsequently worked at Kmart in Brunswick, dealing with merchandise, and then the National Can Factory in Fitzroy, undertaking general factory work.
3 The plaintiff moved to Ballarat about twenty years ago. She worked as a housekeeper at the Ballarat Lodge in 2001 and 2002. Her next employment was with the first defendant. She commenced working for the first defendant in December 2008. She subsequently completed a Certificate IV in Disability through a regional education institution.
4 The plaintiff’s employment with the first defendant was casual. She eventually became a permanent part-time employee, averaging about 15 hours per week. Her general duties involved looking after clients of the first defendant. She undertakes cooking, cleaning and general care for the clients in their homes. She sometimes stays overnight at the homes of two of her clients. Additionally, she transports clients, from time to time, on outings, and in the case of one client, who is wheelchair-bound, she assists that client in moving from his wheelchair to his bed, and no doubt from his bed to his wheelchair.
The Plaintiff’s injury
5 It was not in issue that the plaintiff suffered an injury in March 2009 while transferring a client from her wheelchair to her bed. She suffered pain in her neck and right shoulder. In late September or early October 2009, she was at the home of a different client. In the course of loading his wheelchair into the boot of her car, she again suffered pain in her neck and right shoulder.
What is in issue?
6 The defendants conceded that the plaintiff had suffered a compensable injury to her neck and right shoulder, and that the injury has impaired the function of her neck and right shoulder.
7 What is in issue is whether the pain and suffering consequences of the impairment of function of her neck and right shoulder can be characterised as being “at least very considerable”.
8 Under cross-examination, the plaintiff said that she suffered depression and headaches before she suffered the neck injury. She was referred to and attended upon Dr Churcher on 2 June 2008, when she reported suffering pain in her neck. The plaintiff said she had no recollection of that attendance. She also suffered an injury to her lower back in November 2013. Despite the cross-examination and the reference to those other medical conditions, Ms Ryan did not submit that they were relevant to my consideration of whether the pain and suffering consequences are “at least very considerable”.
The medical evidence
9 The plaintiff saw Dr Churcher for treatment for her injuries. He understood that the plaintiff had suffered injury on two occasions. He diagnosed that the plaintiff had suffered a C5-6 disc and facet-joint injury. It was a diagnosis which he made on the basis of the history given to him by the plaintiff, his examination of the plaintiff and on the basis of a CT scan which was taken on 9 September 2009, and an MRI scan which was taken on 10 June 2010. The CT scan disclosed left paracentral dorsal disc protrusion at C5-6 with evidence of disc degeneration. The MRI scan disclosed a broad posterocentral protrusion at C5-6 level with minor right-sided uncinated hypertrophy producing mild compromise of the right-sided foramina.
10 Dr Churcher referred the plaintiff to have a second MRI scan, which was taken on 15 May 2013. It disclosed a disc bulge and uncovertebral hypertrophy complex at the C5-6 level, producing moderate right-sided foraminal stenosis. It also disclosed a non-compressive posterior central disc herniation at C4-5.
11 Dr Churcher referred the plaintiff to have physiotherapy and hydrotherapy. He prescribed her painkilling medication. He also referred the plaintiff to Dr Lovell, physician.
12 The plaintiff saw Dr Lovell in November 2011. He obtained a history from the plaintiff that she was experiencing constant pain in the base of her neck, spreading up and over the saddle of her right shoulder and, to some degree, into the scapula. She reported to him that she was suffering sub-occipital pain most days, which lasted for some hours in the form of a headache. The most consistent pain was to the right side of her neck and shoulder girdle. It was a dull ache averaging 5 out of 10, and worse after sitting for more than 30 minutes, or standing for more than 10 minutes.
13 At the time when Dr Lovell first saw the plaintiff, she was using Tegretol at night, and Ibuprofen for pain relief. She was using Tramadol when she experienced more severe pain.
14 The Dr Lovell examined the plaintiff and found that flexion, extension, right rotation and right quadrant loading produced pain. She was also tender over the articular pillars at C5-6 on both sides of her neck. Dr Lovell had the MRI scan provided for his information. He applied for permission, from the relevant insurance agent, to undertake right C5-6 medial branch blocks. These were undertaken on 7 December 2011, and right C3-4-5-6 medial branch blocks were undertaken on 18 January 2012 and on 29 February 2012.
15 Dr Lovell reviewed the plaintiff after the completion of the medial branch blocks. He concluded that the plaintiff's pain was not coming from facet joints in her neck, and as a result, she was not a candidate for radio-frequency neurotomies. He noted that she had previously been on Tegretol for pain relief, and that later she had been prescribed Lyrica. He prescribed Norspan, which he described as a slow-release analgesic. He did not treat the plaintiff again.
16 The plaintiff suffered an exacerbation of her neck injury on 13 October 2014 when she lifted a dustbin. She saw Dr Churcher. He noted that the plaintiff had pain radiating into the lateral portion of her right elbow; into her occiput centrally; into her left upper anterior chest; her right shoulder had dropped and her head was tilting to the left; she had restricted motion of her neck, particularly right lateral flexion and rotation. He applied to the relevant insurance agent for a short burst of physical therapy over an eight-week period. It was refused.
17 Dr Churcher provided the plaintiff with Certificates of Capacity certifying that she had suffered a C5-6 disc injury which rendered her unfit for any duties from 12 to 24 February 2013. The next certificate certified her for modified duties from 16 October 2014 to 13 November 2014, and the next certificate, for modified duties from 18 October 2014 to 13 November 2014. However, that final certificate also certified her as unfit for any duties from 15 to 17 October 2014.
18 Dr Churcher referred the plaintiff to Ms Tan, neurosurgeon, who saw the plaintiff on 11 June 2013 and 4 February 2014. On examination, Ms Tan found moderately reduced range of all neck movements; upper limb tone was normal but there was generalised weakness; tendon reflexes were symmetrically depressed, and a test known as “Roo’s” was positive on the left side (presumably of the neck) in June 2013, but positive on both sides in February 2014.
19 Ms Tan found making a diagnosis difficult. She considered that because the facet joint injections, presumably those given by Dr Lovell, gave the plaintiff some relief, that she might have referred facet joint pain. She considered that the MRI scan suggested a right C6 radiculopathy, but the nature and the pattern of the plaintiff's pain was more diffuse than she would have expected from an isolated C6 radiculopathy. She then considered whether the plaintiff was suffering from a secondary intermittent thoracic outlet syndrome or a Chronic Pain Syndrome, but she does not appear to have reached a conclusion with respect to either of those two conditions. She recommended that the plaintiff have treatment by an expert in musculoskeletal physiotherapy and undertake pain management.
20 The balance of the medical evidence comes from medico-legal assessments. On the plaintiff's side, she was examined by Mr Moran, orthopaedic surgeon, on 13 November 2014. On examination, he found flexion and extension of 15 degrees; right and left lateral flexion of 20 degrees, and right and left rotation at 40 degrees. In relation to the right shoulder, he found flexion of 70 degrees; extension 20 degrees; abduction 50 degrees, adduction 30 degrees; internal rotation 90 degrees and external rotation 90 degrees.
21 Mr Moran considered that it was likely the plaintiff would continue to experience intermittent neck pain and intermittent pain in the back of her right shoulder. He considered that she was fit for light duties not involving repeated bending and/or heavy lifting. It would appear that he was aware of the work she was undertaking. He considered that she was only fit to work 15 hours a week on light duties, spread over a five days.
22 The defendants had the plaintiff examined by Dr Lefkovits, physician, who examined her in March 2014. On examination, he found restriction of neck movements in all directions to a variable degree. Otherwise he did not find any abnormality on examination except power was variably reduced in both upper limbs with a collapsing component, handgrips were variably weakened, and reflexes were diminished in both upper limbs but were symmetrical and were present on facilitation.
23 The opinion which was sought from Dr Lefkovits directed his attention to an assessment under the AMA Guidelines. I assume that because his attention was so directed, he did not provide a diagnosis except to repeat the plaintiff's complaints of pain and restriction of movement. He added that he considered that the examination he conducted demonstrated abnormal illness behaviour.
The Plaintiff’s case
24 In summary, the plaintiff's pain and suffering consequences are as follows:
· Pain in the neck, right shoulder and headaches. The headaches trouble her about four days per week. Sometimes they are bad enough to force her to sit in a quiet place until it passes. She has had time off when the headaches are bad.
· The pain in the neck and right shoulder is deep aching pain which can be aggravated by physical activity, including her work activities.
· Occasional tingling and numbness of the fingers of the right hand.
· Although the pain is predominantly right sided in her neck, there is occasional pain on the left side of the neck and left shoulder and arm.
· Her sleep is often broken. She wakes with neck and shoulder pain.
25 In summary, the plaintiff's loss of enjoyment of life consequences are as follows:
· She used to enjoy going dancing with her partner most Friday and Saturday nights. She now seldom engages in this activity.
· Her enjoyment of general socialising and mixing with friends has been reduced.
· Her ability to undertake sewing is reduced.
· Her ability to play with her daughter is reduced, and I understand that to be with her eleven-year-old child.
· Mowing the lawns.
· Picking up heavy objects, in the context of playing with her grandchildren.
· Difficulty engaging in domestic activities which requires her to have her neck in a flexed position, such as ironing, hanging out the washing, vacuuming, sweeping, mopping floors, making beds and like activities.
· An inability to sit at a computer or sewing machine with her neck in a flexed position.
· Difficulty opening jars and bottles.
· Her ability to bike ride is reduced.
· Going out on shopping trips is reduced.
· Undertaking personal care of her daughter's hair, and using a hairdryer to dry her own hair is reduced. She calls on her partner and her daughter for assistance.
26 The plaintiff continues to see Dr Churcher.
27 The plaintiff formerly used Lyrica for pain relief. That ceased about six months ago, and was replaced by Palexia. She takes 150 milligrams in the morning and 200 milligrams at night. She describes it as a strong synthetic opioid painkiller. She continues to use Celebrex, which I understand is an anti-inflammatory medication. She continues to use Panadol Osteo, which I understand to be an analgesic painkiller. She uses medication for depression. She previously used codeine-based medication and Norspan patches, but ceased using them because of the stomach problems that they caused. She also suffered vomiting as a result of the use.
28 Under cross-examination, the plaintiff agreed that before she suffered injury she was working 16.5 hours per week. On occasions, she has worked as much as 25 hours per week when called upon by the first defendant. Although, in recent times, she has refused to work additional hours.
29 Under further cross-examination, the plaintiff described the domestic work she has undertaken, and continues to undertake, for one of her clients. The particular client is wheelchair bound. She washes his clothes; makes his bed; changes the sheets on his bed; drives him to appointments using her car; dismantles his wheelchair and puts it in the back of her car; takes him on outings, and has taken him on an outing to the Melbourne Zoo. She agreed that she was able, and is able, to undertake all of those activities despite the pain she experiences in her neck and right shoulder. She said that she does minimal housework in her own home. She does not make the beds.
30 Under re-examination, the plaintiff said that her duties are now modified to accommodate the incapacity caused by her injuries. She can change a sheet on a double bed, but cannot do so on a larger bed. She does not sweep, mop or vacuum any longer. She uses a broom and a shovel arrangement to clean up any mess on the floor, and if there was a spillage, she puts the mop on it rather than using a mopping motion. After the trip to the zoo, she described her neck as being “sore” to the extent that when she has undertaken an extensive activity, she has taken the following day off or been forced to lie down at her home to recover. She feels insecure and is scared that she might lose her job because she is on modified duties.
Findings
31 There is no issue that the plaintiff suffered a compensable injury to her neck. There is no issue that the plaintiff is troubled by neck and right shoulder pain, and, to a lesser extent, left shoulder pain, and from headaches which can be quite disabling. There was also no issue that the plaintiff has undergone a fair amount of medical treatment, and that she takes medication to deal with the pain which she experiences on a daily basis.
32 The major platform relied upon by the defendants is that the plaintiff is working the same hours as she was previously, and has, up until recent times, taken on additional hours. Despite the modification of her duties, she is nonetheless required to meet the demands of care for her clients. The cross-examination of what she is required to do for the wheelchair-bound client is a good insight into how she spends the 16.5 hours that she works weekly.
33 Ms Ryan essentially submitted that what the plaintiff has retained by being able to work without much modification demonstrates that she is able to function at a tolerably high level, compared to what she was like before she suffered the compensable injury.
34 Mr Walters essentially submitted that whilst the plaintiff is able to work, she does so with modifications, and she is taking painkilling medication to allow her to function at that level. He pointed to the pain and suffering consequences contended for by the plaintiff, which were largely unchallenged.
35 The question raised by this application is whether the level of interference with the plaintiff's social, domestic and recreational pursuits, which I have summarised above, demonstrate a loss, when compared with what she has retained, which meets the statutory test of seriousness.
36 The plaintiff has pathology in her neck which has been identified as the likely cause of the pain which she complains about in her neck and right shoulder. She has undergone a significant level of active treatment which has failed to ameliorate the pain she experiences. She has been prescribed a great deal of medication which appears to be strong painkilling medication, which I infer was prescribed because of the nature and extent of the pain she was experiencing. She continues to be prescribed medication with similar qualities in pain relief, and I accept that it is the opinion of Dr Churcher that she requires that level of medication in order to be able to tolerate the pain she experiences on a daily basis.
37 The fact that the plaintiff is able to work the same hours is not conclusive as to whether her pain and suffering consequences meet the statutory test of seriousness or not. The plaintiff is working part-time. She devotes herself to her work three hours per day. Her duties are now modified to reduce the impact of those duties flaring up the pain she experiences in her neck and right shoulder.
38 The plaintiff struck me as being something of a stoic. Despite undergoing the treatment which I have summarised above, she has maintained her connection with her employment. I think that is rather more to the credit of the plaintiff than adverse to her prospect of success.
39 Whilst the plaintiff has retained her capacity to work part time, she has otherwise lost her ability to engage in all of the activities which I have summarised above. What she has lost, by reason of the pain in her neck and right shoulder, touch almost every aspect of her social, domestic and recreational life as she knew it before she was injured. I do not accept that, when the balancing exercise is undertaken between what she has lost and what she has retained, what she has retained speaks of the impairment of the function of her neck not meeting the statutory test of seriousness.
40 Applications involving parties who continue to work are always difficult. Being able to continue working is a yardstick by which a measurement can be made of the seriousness of an impairment of function. However, it is one factor amongst a number which must be weighed into the balance. Having undertaken that exercise, I am satisfied that the pain and suffering consequences contended for by the plaintiff meet the statutory test of seriousness.
Conclusion
41 For the reasons set out above, I order that the plaintiff be given leave to bring a proceeding at common law to recover damages for pain and suffering.
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