Cuttriss v Patties Foods Limited
[2014] VCC 645
•16 May 2014
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05046
| MARK CUTTRISS | Plaintiff |
| v | |
| PATTIES FOODS LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 9,12 and 13 May 2014 | |
DATE OF JUDGMENT: | 16 May 2014 | |
CASE MAY BE CITED AS: | Cuttriss v Patties Foods Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 645 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of earning capacity consequence of an injury to the low back – whether the plaintiff has established a loss of earning capacity of 40 per cent or more.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to bring a proceeding for the recovery of damages for pain and suffering and loss of earning capacity in respect of injuries suffered in the course of his employment with the first defendant on or about 16 July 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delany | Maurice Blackburn Lawyers |
| For the Defendants | Mr P Jewell SC with Ms M Tait | Hall & Wilcox |
HIS HONOUR:
1 Mark Cuttriss suffered an injury to his low back in the course of his employment with the first defendant on or about 16 July 2010. He seeks the leave of this Court to issue proceedings to recover pain and suffering and loss of earning capacity damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Mr Cuttriss’ lumbar spine.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c) of the Act
7 In this matter, the defendants concede that the pain and suffering consequence of Mr Cuttriss’ injury is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.
8 The dispute between the parties concerns the loss of earning capacity consequence of Mr Cuttriss’ injury. Leave is not to be granted by the Court to bring a proceeding claiming loss of earning capacity damages unless Mr Cuttriss establishes that, at the date of the hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with s38(e), (f) and (g). It is this issue that falls to be determined by the Court.
Background
9 Mr Cuttriss is aged thirty-nine. He completed Year 11 education in 1992. Since leaving school, he has been employed in a number of jobs, including general gardening and lawn mowing, powder coating, storeman, spray painter, forklift operator and general hand. It can be seen that, mostly, he has performed manual work. I accept that he has a good employment record.
10 Mr Cuttriss commenced employment with the first defendant in July 2008 as a general hand. He operated pastry-making machines and performed other general duties.
11 Mr Cuttriss had previously suffered an injury to his right shoulder with a previous employer but this did not prevent him from working on a full-time basis with the first defendant without interruption.
12 On 16 July 2010, Mr Cuttriss sustained an injury to his low back in the course of his employment when lifting a heavy weight. He immediately felt pain in his back and down both legs.
13 On the following day, he attended at the Bairnsdale Hospital and soon after, attended a physiotherapist. He saw his general practitioner, Dr Ng, who prescribed analgesic medication and arranged for a CT scan of his lumbar spine. This was reported as showing possible impingement of the L5 nerve roots at the L4-5 disc level.
14 In due course, Mr Cuttriss was referred to Associate Professor Richard Bittar, neurosurgeon, who referred him for an MRI scan which was reported as showing a significant L4-5 disc bulge compressing the descending L5 nerve root bilaterally.
15 Treatment initially was of a conservative nature. He was off work for several weeks and returned to part-time, light duties in mid-November 2010. He eventually built up his hours to work full-time, light, administration duties.
16 Mr Cuttriss was referred to Dr Richard Sullivan, a pain specialist and anaesthetist. Dr Sullivan performed a series of injections and nerve block procedures, radiofrequency denervations and, finally, a spinal cord stimulation procedure – a neuromodulation. This involved spinal cord and cluneal nerve stimulation by means of surgical implantation of a battery-operated stimulator in the area just above Mr Cuttriss’ left buttock. It is connected to one or more wires which run to an area at or near his spinal cord. Mr Cuttriss is able to control the strength of the stimulation, to an extent, by means of a remote control that he keeps with him.
17 Following that procedure, carried out in July 2012, his pain was substantially reduced and he anticipated being in a position to look for suitable part-time light work. He was referred by the WorkCover claims agent to Nabenet Integrated Workplace Health Services, who provided him with some assistance in his search for suitable work. Notwithstanding, he has not been successful in obtaining an employment interview, or a job.
18 In 2010 and 2011, Mr Cuttriss became depressed. He attempted suicide. He separated from his wife.
19 Mr Cuttriss has, for a considerable time, been prescribed strong prescription analgesic medication including Endep and later, Tramadol. With the latter, he developed a skin rash and, in early 2014, was changed to another prescription analgesic, Palexia, on which he continues.
20 In September 2011, the first defendant terminated Mr Cuttriss’ employment. He was told by the company that there was no work available for him. He had never returned to his pre-injury duties. He had performed light duties of a clerical nature in the administration office and was working 12 hours per day at the time of his termination.
21 In late 2012, his stimulator malfunctioned. In February 2013, he was required to re-enter hospital for a further surgical procedure in which the stimulator was replaced. The procedure was far more painful than the first. His evidence was that if he had known how painful it would be, he would not have had it.
22 In about March 2013, Mr Cuttriss was referred to a Pain Management Clinic, where he completed a program. By May 2013, Mr Sullivan noted that, some four weeks after his Pain Management Program, Mr Cuttriss had reduced his analgesia, and was looking for “active engagement in the workforce”.
23 The new stimulator has not been as effective in preventing back and leg pain as its predecessor. By February 2014, his dosage of Tramadol had increased significantly to in excess of 400 milligrams per day. Investigations showed that the stimulator was not providing the same degree of stimulation due to a loss of one of the terminal contacts on the spinal lead. It was re-programmed.
24 Approximately two months ago, he applied for and was granted a Disability Support Pension.
Diagnosis of injury
25 The parties agreed that Mr Cuttriss had suffered an injury to his low back at work. A number of specialists considered he had suffered from a disc bulge or prolapse at the L4-5 level that compressed the L5 nerve roots. This was confirmed by a CT scan of 3 August 2010 and an MRI scan dated 12 October 2010. A later MRI scan of September 2011 showed minimal retrolisthesis of L4 over L5 with mild diffuse disc bulges or herniations at L4-5 and L5-S1showing annular tears and indenting the thecal sac.
26 Mr Peter Scott[4] and Mr Thomas Kossmann[5] came to similar views. It was accepted by all practitioners that the workplace incident was a significant contributing cause. Professor Marshall[6] considered the pain was probably discogenic. Professor Bittar considered Mr Cuttriss’ presentation was highly suggestive of a lumbar disc prolapse and noted this was confirmed by the October 2012 MRI.
[4]Defendants’ Court Book (“DCB”) 17
[5]Plaintiff’s Court Book (“PCB”) 78
[6]DCB 17
27 I find it is likely that Mr Cuttriss suffered a prolapse of his L4-5 disc which had compromised the L5 nerve root bilaterally.
Consequence of injury
28 Mr Cuttriss has continued with the implanted stimulator. After the reprogramming of the replaced stimulator in February 2014, Dr Sullivan was hopeful that Mr Cuttriss would be able to wean his prescription analgesia. This has not occurred.
29 Senior Counsel for the defendants submitted that it was too early to say whether or not further improvement in his condition was likely. He pointed to the improvement in pain levels after the original implantation in February 2012 and to Dr Sullivan’s opinion as at May 2013 before the malfunction that later occurred. At that time, just after the first pain management program, Dr Sullivan had reported that Mr Cuttriss had improved his vocational functional capacity and was actively seeking employment.[7] Counsel submitted that there was every reason to expect that, now that the problems with the stimulator had apparently been resolved, Mr Cuttriss would return to his May 2013 state, especially given that he was presently in the midst of a further Pain Management Program.
[7]PCB 65
30 Mr Cuttriss’ evidence was that in the period since the reprogramming of his stimulator, there had been no improvement in the severity of his pain and no reduction in his required medication.
31 In August 2012, Mr Williams, orthopaedic surgeon, thought Mr Cuttriss had chronic pain in his low back without specific evidence of radiculopathy. Although he did not think there had been any lasting structural damage to his back, he thought he probably had a capacity only to work in “some form of basically sedentary occupation that does not put any physical strain on his back”.[8]
[8]DCB 39
32 In March 2013, Mr Shannon, general surgeon, reported that Mr Cuttriss had been “subjected to enthusiastic pain management”,[9] noting that the stimulator did not appear to have reduced his requirements for analgesia. He did not express a view concerning his employment capacity.
[9]DCB 44
33 In August 2013, prior to the deterioration of the performance of the replacement stimulator, Mr Kossmann, orthopaedic surgeon, was of the view that Mr Cuttriss would suffer from lumbar back pain for the rest of his life. He thought the stimulator had brought only a limited success. He thought he had no work capacity and that he would never return to any meaningful employment.[10]
[10]PCB 78
34 In September 2013 (about one week after Mr Kossmann’s examination), Dr Davison, an occupational physician, reported that Mr Cuttriss had provided a history of a 60 to 70 per cent improvement. I presume he was referring to an improvement in levels of pain. He reported that Mr Cuttriss was then looking for work. Dr Davison thought his prognosis for a full recovery was poor and that he had a reduced physical capacity for employment. He thought he had a capacity to undertake employment in the “sedentary to light range only”.[11]
[11]DCB 53
35 In March 2014, Dr Poh Ng, treating general practitioner since 2008, reported that Mr Cuttriss had a limited capacity for work and suggested “light duties only for about half of his pre-injury employment duration under a suitable return to work program”.[12] Although that passage might have been more clearly expressed, I accept the submission made on behalf of Mr Cuttriss that the doctor was there stating that he was only fit to return to work on light duties, and on about half normal working hours. I do not interpret his report as stating that Mr Cuttriss would be fit to work longer hours at some later time.
[12]PCB 46a
36 Dr Ng would have been well aware of the reprogramming of the stimulator in February 2014 but does not appear to be of the view that Mr Cuttriss’ capacity for work was likely to alter in the foreseeable future.
37 In April 2014, Mr Cuttriss’ current general practitioner, Dr Begum, considered that he could try working three to four hours per day doing “very light duties”.[13]
[13]PCB 74A
38 Much emphasis was placed by Senior Counsel for the defendants on Mr Cuttriss’ various statements indicating that he was looking for work or that he would like to return to work. Whilst I am sure that he would like to do so, I consider that those statements merely indicated he would like to if he was physically able. I accept that he has from time to time looked through job advertisements to see if there was anything suitable for him and found none that were. His evidence was that he had been directed by the claims agent to Nabenet, a vocational counselling service, and advised by Nabenet that he was obliged to search for suitable work.
39 The defendants submitted that Mr Cuttriss could perform work as a weighbridge operator. Although other positions had been suggested as suitable by rehabilitation consultants at Nabenet, some of these were, in my opinion, plainly inappropriate, and Senior Counsel for the defendants relied only on the weighbridge position as suitable employment for Mr Cuttriss. I am satisfied that Mr Cuttriss would not be suited to clerical or administrative work by reason not only of his modest education and lack of experience in such work, but also because of his poor literacy skills.
40 Duties relating to the weighbridge position were listed as:
· Cash handling and processing transactions
· Reconciliation
· Basic administration and office duties
· Accurate weighing of vehicles
· Entering information/data onto a computer; and
· Customer services, including telephone services.[14]
[14]DCB 128-9
41 The consultant reported that there was flexibility in the role, allowing alteration of postures, sitting or standing. Such a position, the defendants submitted, would fall within the restrictions nominated by Dr Ng in his most recent Certificate of Incapacity dated 4 March 2014.[15]
[15]DCB 132
42 Another rehabilitation consultant, Paul Hartley, described the position of a weighbridge operator as follows:
“Light to sedentary physical demands. Frequent standing and walking, stretching up and across, occasional squat and crouch and bending. Working constantly with plant controls with repetitive arm movements. He would not be able to sustain these postures throughout a day of work, thus this is not a valid vocational option for Mr Cut[t]riss in my opinion.”[16]
[16]PCB 93
43 The defendants tendered DVD video-surveillance film depicting Mr Cuttriss on 28 March 2014. I was not assisted by it. It showed Mr Cuttriss walking for relatively short periods at a leisurely, strolling pace in various streets and shopping centres. He performed no physical or athletic actions. I find he was not shown doing anything inconsistent with his affidavit or oral evidence.
44 Mr Cuttriss described the side effects of his Palexia medication as knocking him a bit and affecting his memory.
45 I consider it unlikely that Mr Cuttriss could cope with the duties of a weighbridge operator. Taking all of the medical evidence into account, I consider that, even if he could cope with those duties, he would not be capable of working more than four hours per day. I see no reason to reject the opinions of his previous and current general practitioners on that issue. I also take into account the defendants’ concession made at the outset of the hearing that the pain and suffering consequence of Mr Cuttriss’s injury was more than marked or significant, and was at least very considerable. In respect of pain and suffering, the defendants must be taken to have conceded that that consequence was permanent and serious.
46 The parties agreed that Mr Cuttriss’ “without injury” income for the purposes of s134AB(38)(f)(i) was $46,930 (the weekly equivalent of which is $902.50). That is, it was agreed that that figure was the gross income he was earning, or was capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflected his earning capacity had the injury not occurred.
47 In the Nabenet report dated 17 March 2014, it was stated by the authors that the remuneration for a weighbridge operator was $20 per hour.[17] It follows that if Mr Cuttriss worked 19 to 20 hours per week at $20 per hour, he would earn $380 to $400 per week or $19,760 to $20,800 per annum. Such an income would be well below 60 per cent of the agreed “without injury” figure referred to above.
[17]DCB 128
48 Accordingly, I am satisfied Mr Cuttriss has suffered a loss of earning capacity of more than 40 per cent, calculated in accordance with ss(38)(e) and (f).
49 With regard to ss(38)(g), I do not consider that there is any rehabilitation or retraining available that is likely to increase his earning capacity. I am satisfied that that loss of earning capacity is fairly described as “at least very considerable” within the meaning of s134AB(38)(c) of the Act.
Conclusion
50 For the reasons expressed above, I am satisfied that Mr Cuttriss has suffered a “serious injury” as that term is defined in the Act.
51 There will be leave to him, pursuant to s134AB(16)(b) of the Act, to commence proceedings claiming pain and suffering damages and loss of earning capacity damages in respect of injuries suffered by him in the course of his employment with the first defendant on or about 16 July 2010.
52 I shall hear the parties in respect of costs.
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