David v Victorian WorkCover Authority
[2016] VCC 1125
•11 August 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00141
| JOANNE LESLIE DAVID | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 5 July 2016 | |
DATE OF JUDGMENT: | 11 August 2016 | |
CASE MAY BE CITED AS: | David v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1125 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – consequences attributable to the spine from other conditions – whether plaintiff satisfies the test for economic loss – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P B Jens QC with Ms M S 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 her over the course of her employment with Pita Nominees Pty Ltd (“the employer”) at the Longwarry Service Station, but in particular an incident that occurred in November 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
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 spine, in particular the plaintiff’s thoracic and lumbar spine, with pain that goes into her buttocks and predominantly left leg.
6 The plaintiff relied upon three affidavits sworn 16 June 2015, 17 June 2016 and 5 July 2016. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other medical material which were tendered in evidence. I have read all of the tendered material.
The issues
7 Counsel for the defendant informed the Court that there were two main issues for determination, which were:
·First, whether it was necessary to separate consequences attributable to the spine from other conditions from which the plaintiff suffered which was depression, neck and right shoulder pain and vertigo; and
·Second, whether the plaintiff satisfied the test for economic loss pursuant to the Act.
The credit of the Plaintiff
8 The plaintiff’s credit was not in issue between the parties. The plaintiff answered questions directly, made concessions, gave her evidence without embellishment and was straightforward in her presentation. There was no suggestion by counsel for the defendant or in the medical evidence that the plaintiff’s credibility was in issue. Overall, the plaintiff impressed me as a believable witness.
The Plaintiff’s background
9 The plaintiff left school midway through Year 10 and, over the years, obtained employment in various fields such as retail, office, cleaning, hospitality and labouring, including cooking.
10 The plaintiff attended Gippsland TAFE and obtained her Certificate IV in Youth, Child and Family Services. In 2000, she obtained employment as a project officer in management and project coordinator with Try Youth Community Services, where she worked until about 2008, managing a “Work for the Dole” project. She then became a part-time coordinator of a program in Moe, which was four days a week. During that period, she obtained a Certificate IV in Workplace Training. In 2008, she enrolled at the Gippsland Education Centre at Warragul and subsequently, obtained a Diploma in Sustainable Agriculture in 2010.[1]
[1]Plaintiff’s Court Book (“PCB”) 9
11 During 2008, the plaintiff obtained part-time employment at the Longwarry Service Station, where she worked six-hour shifts on an average of four to five days per week. She worked as a cook, which involved tasks such as attending to delivery of stock and moving stock from the foyer area to the freezer room.[2] The plaintiff’s evidence was that the job with the employer was shift work, which enabled her to pursue her studies and accommodate her family responsibilities. On occasions, she worked weekends. Upon obtaining her Diploma in Sustainable Agriculture, it was her intention to return to full-time work.
[2]PCB10
12 The plaintiff’s evidence is that, in November 2009, whilst bending over in a confined space in the freezer and lifting a box at the Longwarry Service Station, she injured her spine.[3] She continued working with pain during December 2009 and January 2010 but in February 2010, she began to feel extreme pain in her lower back. She sought medical attention and was off work for approximately one month, before returning to light duties. She returned to work on various return to work programs but ceased work due to ongoing lower back pain in October 2011. At that time, she was working 18 hours per week but was not managing the work.
[3]PCB 10
13 The plaintiff commenced part-time employment with Headway Gippsland, where she worked on a social support program in Warragul, working 5 hours, one day per week. In February 2012, she increased her hours by 12 hours per week, working Monday, Wednesday and Friday, which enabled her to rest when she was not working. Further, she had the option of working from home, on occasions, which she exercised. This work continued until December 2013. She had difficulty working consecutive days. She returned to her one day per week until September 2014, when she resigned.
14 The plaintiff gave evidence that she has been looking for suitable light work but without success. In the meantime, she is undertaking some voluntary work as a “Meals on Wheels” delivery driver for Baw Baw Shire Council in the Warragul, Trafalgar and Drouin areas for approximately four hours, one day per week.[4] She described this work as very light work as she merely drives the car loaded with food, which is unloaded for her upon arrival.[5] In addition, she does voluntary social assistance for the elderly one day per week for approximately six hours.[6]
[4]PCB 17
[5]PCB 17-18
[6]T77, L9-10
15 The plaintiff’s evidence was that after completing her Diploma in Sustainable Agriculture, her initial goal was to undertake consultancy work but in the long term she wanted to develop and run an organic farm as a business.[7] However, whilst studying for her certificate, she came to the conclusion that work in the field of sustainable agriculture was not available.[8] The plaintiff said that this forced her to seek alternative work and apply for numerous full-time and part-time positions but without success. Counsel for the defendant focused a large part of cross-examination on this issue. The plaintiff said that now there are more jobs available but her career prospects are limited, as even consultancy work has a “hands on” component, which she could not do due to her injury.[9]
[7]PCB 18
[8]T22, L16-20
[9]PCB 16, T52 – 54
The Plaintiff’s evidence as to unrelated medical issues
16 Counsel for the defendant tendered medical certificates, which suggested that the plaintiff was unable to work for conditions unrelated to her spine during certain periods.
17 Counsel for the defendant submitted that it was necessary for the plaintiff to separate the consequences attributable to the spine from other medical conditions from which she suffered, which was depression, neck and right shoulder pain and vertigo.
18 In respect to the Medical Certificate of 2 May 2014 for vertigo, the plaintiff’s evidence was that while working at the Longwarry Service Station she had an operation on her ear. As a result, on occasions, she suffered vertigo and tinnitus. She was registered with Centrelink and was required to perform 15 hours of voluntary work. At the time, in May 2014, she was doing voluntary work of 6 hours. She had symptoms of tinnitus and because she did not think she could work two to three days per week, she obtained a certificate from her doctor as a precaution. She could not explain why the Medical Certificate did not refer to her spinal problems.
19 In respect to the Medical Certificate for shoulder and spine pain for the period June to September 2015, the evidence was that the plaintiff sought treatment from the Warragul Osteopathic Clinic from November 2010 until May 2016 due to her work injury. In July 2015, she reported low-back pain and shoulder pain and was treated for both. A balanced reading of the osteopathic reports confirm that she was seeking treatment for a variety of things but principally for her back.
20 The plaintiff’s evidence was that any problems she had in the past with her neck and shoulder did not affect her ability to perform physical work, in particular, gardening.[10] She does not take medication for her neck or shoulder.[11]
[10]T84, L18
[11]T86
21 Finally, there were Medical Certificates relating to depression for 23 September 2014 to November 2014. Both certificates referred to the plaintiff’s chronic low-back pain as a secondary related condition. The plaintiff’s evidence was that she was under pressure with work at that time. Furthermore, I accept that the plaintiff’s low-back pain was referred to on these certificates and the plaintiff’s claim relates to the fact that she cannot work more than part time because of her spine condition.
22 I accept that the plaintiff has separated the consequences attributable to the spine from other conditions from which she suffered.
The legislative framework
23 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the employer;[12]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[13]
(c)“the consequences” to the plaintiff of her impairments to the spine in relation to “pain and suffering consequences” or “loss of earning capacity consequences” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[14]
[12]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[13]Barwon Spinners (supra) at paragraph [33]
[14]Section 134AB(38)(b) and (c)
24 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[15]
[15]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[16]
[16]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[17]
[17]Section 134AB(38)(e)(ii) of the Act
(c) that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative; and
(d) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[18]
[18]Section 134AB(38)(g) of the Act
25 The expression “suitable employment” which appears in s134AB(38)(f) and in s134AB(38)(g) is defined in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 in the following terms:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information, including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the worker or the employment is of a type or nature that is generally available in the employment market.”
26 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[19]
[19]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
27 Accordingly, it is appropriate for me to first look at the various tests for loss of earning capacity, which must be satisfied by the plaintiff in respect to the spine injury.
Loss of earning capacity – the ‘narrative test’
28 It was not in issue between the parties that the plaintiff suffered a work-related injury to her spine.
29 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
30 The up-to-date medical evidence of the plaintiff’s capacity for employment was expressed by Dr Slesenger, occupational physician, Mr O’Brien and Mr Dooley, orthopaedic surgeons, and Dr Agaskar, general practitioner.
31 In April 2016, Dr Slesenger diagnosed an aggravation of the degenerative disease of the lower thoracic and upper lumbar spine. He formed the opinion that, as a result of her spinal injury, the plaintiff had a residual capacity, with the following restrictions:
·no push, pull, carry or lift over 5 kilograms;
·no repetitive bending or twisting;
·sit and stand as required; and
·fours a day for four days per week.
32 It was Dr Slesenger’s opinion that the above restrictions are permanent. He thought that the plaintiff had the capacity for work, working up to 16 hours per week, and anticipated that she would be able to continue to work on a consistent and reliable basis. He was of the opinion that her incapacity for work is unlikely to change in the foreseeable future. He expressed reservations with regard to her experience and ability to deploy her qualifications in training and assessing sustainable agriculture and youth and family services. He was concerned as to her previous employment experience in clerical/managerial roles and the transferability of the experience in an open job market. He described her prognosis as guarded. He noted the length of her occupational impairment and disability and her poor response to treatment.
33 In May 2016, Mr O’Brien, orthopaedic surgeon, said the plaintiff reported moderate disability associated with a chronic low-back pain. He said she is certainly limited in relatively heavy physical tasks and is quite incapable of undertaking employment which does involve manual-type duties. She is not physically capable of undertaking pre-injury employment but has a capability of undertaking light suitable employment which should be limited to approximately 20 hours per week. He described her prognosis as poor.
34 The plaintiff’s general practitioner, Dr Agaskar, provided five letters, dated 12 May 2015, 5 November 2015, two dated 21 June 2016 and one dated 30 June 2016. The two letters dated 21 June 2016 expressed different opinions on the number of hours the plaintiff could work. They were identical except the hours stated were different. He said, after considering the plaintiff’s chronic lumbar spine injury and pain and her age, he concurred with specialist recommendation that the plaintiff could return to work. Initially, he said four to six hours a day, four days a week, with restrictions of no push-pull-lift objects of more than 5 kilograms in weight and no twisting and no repeated bending, squatting or kneeling. She would require rest breaks as needed and could not stand or sit for long periods of time. In the next letter, he limited the hours of work to four to five hours a day, four days a week, with the same restrictions.
35 In the further letter dated 30 June 2016, Dr Agaskar said he consulted with the plaintiff, who said she was happy to work in the range of hours mentioned in the report and that she had one specialist recommending four hours a day and the other recommending five hours a day. I accept that Dr Agaskar is referring to the reports of Dr Slesenger and Mr O’Brien.
36 Mr Dooley, orthopaedic surgeon, said he believed the plaintiff could return to suitable work on a graduated basis and that she would have the capacity to return to full-time work. He said the plaintiff would continue to note intermittent low-back pain and lower limb pain.
37 The plaintiff’s evidence was that she thought she could work up to 17 hours a week, although she indicated that her pain increased when she worked on consecutive days. In re-examination, counsel asked the reason the plaintiff could only engage in part-time work, where she said:
“Because of my back. Because I can’t sit down for too long. I can’t stand up for hours, particularly on concrete floors … So there’s only limited work I can apply for.”[20]
[20]T111, L26-28
38 I also note that the plaintiff’s evidence was that when she worked 17 hours, she had an employer who enabled her to perform some of her work from home.
39 Counsel for the defendant relied upon the general practitioner’s report and submitted the plaintiff could work 24 hours a week.
40 Given the state of the medical evidence, I tend to favour the evidence of the occupational physician, Dr Slesenger. He is the expert/specialist in occupational health and safety qualifications or experience, as to the hours of work and the type of work that the plaintiff can undertake. His view is the plaintiff can work up to 16 hours per week with restrictions. Mr O’Brien said 20 hours per week and the general practitioner said between 16 and 24 hours per week. The plaintiff has been working 17 hours per week, although she has had difficulty working consecutive days. She had the option to work from home, which she exercised. Taking all the evidence into account, I consider somewhere between 16 and 17 hours per week is the plaintiff’s capacity in suitable work.
41 The plaintiff’s evidence is that she has worked in physical employment since leaving school. She can no longer work in pre-injury employment. To her credit, she has undertaken study but had hoped that she would be able to pursue a career in sustainable farming. She has come to the conclusion that that is not possible. The plaintiff cannot return to pre-injury employment. Given her age of fifty-nine years, and the fact that there are restrictions imposed on the type of work the plaintiff can obtain, I consider this represents a loss to the plaintiff.
42 I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence of Dr Slesenger, Mr O’Brien and Mr Dooley. I note that the impairment has remained since 2010.
43 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairment. No element of mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
44 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
Statutory test – loss of earning capacity
45 The statutory test under the Act requires that the worker to have a loss of earning capacity of 40 per cent or more measured by comparing the worker’s gross income before her injury and after the injury.
46 It was accepted by both parties that the work the plaintiff was performing at Headway was suitable employment.
47 I accept that the plaintiff’s “without injury” earning figure before injury is $31,280 gross per annum. Sixty per cent of that figure is $18,768. At the time of her injury, she was working during the week and during the weekend. The hourly rate of pay was $21.72 on weekdays and $28.38 on weekends. If the plaintiff worked 25 per cent weekends and 75 per cent week days, she would earn $701.18 in a 30-hour week. That being the number of hours she was working at the time of her injury that is annualised to be $36,461.36. Sixty per cent of that figure is $21,876.
48 I accept that the plaintiff can work up to 17 hours per week. If she can work 17 hours per week at the hourly rate she was receiving at Headway of $21.66 per hour, that is $368 per week and annualised, that is $19,147. Accordingly, I conclude that the plaintiff has greater than 40 per cent loss.
49 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g) of the Act. No retraining has been offered or provided by the defendant. The plaintiff has undergone her own retraining. There is no evidence that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
50 Therefore, I am satisfied the plaintiff has satisfied the 40 per cent requirement and has sustained an injury within s134AB of the Act.
51 The above position is reached purely by reference to the plaintiff’s physical condition; namely, her spine. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
52 In view of my findings in relation to the physical injury, it is not necessary for me to consider the plaintiff’s claim under paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
53 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
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