Deane v Grosvenor Hotel
[2015] VCC 1724
•2 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05694
| GEMMA MOIRA DEANE | Plaintiff |
| v | |
| GROSVENOR HOTEL | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November and 1 December 2015 | |
DATE OF JUDGMENT: | 2 December 2015 | |
CASE MAY BE CITED AS: | Deane v Grosvenor Hotel | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1724 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – disentangling from psychological condition – pain and suffering and economic loss – whether the consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted in respect of pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Nowicki Carbone Lawyers |
| For the Defendant | Mr P A Johnstone | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Deane, alleges she suffered injury to her lower spine on 3 June 2012 when she lost her footing and slipped down a flight of stairs at the hotel premises of the defendant, where she worked. She said she landed heavily upon her buttocks and immediately felt pain in her lower back.
2 She has since received a range of conservative treatment and, save for a short attempted return to work, has not worked since that time. She claims a range of recreational, social and domestic activities are reduced or lost.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of Ms Deane’s employment on 3 June 2012. The body function said to be lost or impaired is the lower spine.
4 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
5 Ms Deane was the only witness called to give evidence and be cross-examined. In addition, three of her affidavits and affidavits of various friends and relatives, together with medical, vocational and radiological reports, were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well-known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Deane is now twenty-nine years old. Her early education was in Adelaide, where her parents lived. In 2004, she moved to Melbourne and worked at a number of hotel gaming venues as a gaming attendant. In 2009, she completed her VCE and started an arts degree at Victoria University, although she deferred the degree. In 2010, she started working for the Grosvenor Hotel as a gaming attendant.
7 Ms Deane said that before the injury, she was very socially active. She lived with friends in rented accommodation in Melbourne and was able to undertake all the usual domestic activities in that household. She had no prior problems with her back and was otherwise well.
8 Ms Deane was particularly involved in physical fitness and would attend a gymnasium up to four times a week. She said she lifted weights, ran on the treadmill and did kickboxing classes at least three times a week.
9 In 2002 or 2003, she received some psychological treatment regarding personal issues, but this was limited and did not, in any way, affect her social, recreational, or work life. More recently, her sister was diagnosed with a serious disorder, and that has caused some psychological issues.
The injury and its consequences
10 On 3 June 2012, Ms Deane was leaving the hotel after work. As she was walking down a short flight of stairs, she lost her footing and slipped. She fell heavily on her buttocks and felt immediate severe pain in her back and gluteal region. She was taken home by a work colleague and the next day, was admitted to The Alfred hospital. Radiological tests were undertaken and she remained at the hospital over three nights. When discharged, she returned to Adelaide to be with her family, as she was unable to look after herself. In Adelaide, on 8 June 2012, she went to the Queen Elizabeth Hospital because of recurring back pain. She had a CT scan to her lower back and pelvic areas. She was discharged, and prescribed strong pain-relieving medication. She was using a walking frame.
11 On 12 June 2012, she went to see her general practitioner, Dr Mushan, in Adelaide. At this stage, she was in a wheelchair. She saw a physiotherapist, Ms Crawford, in Adelaide. She had very restricted lumbar movement and pain and numbness in the lower back, with referred leg pain. The physiotherapy helped with functional movement. The physiotherapist referred her to another general practitioner, Dr David Bowler, who she first saw on 25 June 2012. He noted that the physiotherapy and hydrotherapy were of assistance. She remained on medication, including Indocid, Panadeine Forte and Allegron. She wore a brace on her lower spine and had the area taped up with ‘rocktape’.
12 In September 2012, Ms Deane returned to Melbourne, hoping to gain some independence. She saw a general practitioner in Melbourne, Dr Kagan. He referred her to a pain specialist, Dr Brian Lovell. He noted when he saw her that she had improved quite a lot, with pain across the lower back focussed on the right side, with occasional sharp pains to the buttock and down the right leg. He noted her sitting tolerance had improved, but with limited standing. He said the imaging which had been taken at the hospital showed no fracture.
13 An MRI scan of the lower spine was arranged by Dr Jaworowski, to whom she had been referred in October 2012. The scan showed some mild lumbar scoliosis, but the examination was otherwise normal. Dr Jaworowski prescribed Panadeine Forte and Indocid. He referred her to a psychologist, Mr Moshe Perl. This was to do with stress and anxiety and grinding of her teeth. A pelvic ultrasound was normal.
14 Her depressive mood continued, and she saw Dr Jaworowski in December 2012 with depressed mood and suicidal thoughts.
15 She returned to Adelaide in late 2012 and returned to the care of Dr Bowler. He referred her to a counsellor, Ms Cat Evans.
16 On 10 November 2012, before returning to Adelaide, Ms Deane returned to work on reduced hours and lighter duties. The tasks were largely administrative, and involved counting money and entering data. The return to work lasted six to seven weeks but she was unable to continue because of severe lower back pain.
17 Since returning to work at the end of 2012, she has not worked in any full-time employment. The pain in her lower back continued, more to the right side. The pain was referred down the right thigh. As a result, she has worn a back brace, although not all the time. She favours her lower back, so this puts additional strain on her knees, and she suffers pain in her knees and wears a knee brace occasionally.
18 She continued to see Ms Cat Evans for counselling regarding Anxiety and Depression and has been prescribed Zoloft; however, she has not had counselling since 2014 or early 2015.
19 Since her return to Adelaide, she has lived with her parents.
20 In March 2015, she started a nursing degree at the University of Adelaide. The degree has components of both theory and practical placements. In the first year, the theory takes up about three days of the week and practical placement two. Placement can occur in blocks. In September of this year, she had a four-week fulltime block at a hospital in Adelaide. She worked eight hour shifts and she found it difficult to get through the day. She was helped by anti-inflammatory and pain relieving medication. In those four weeks, she was able to complete only about 50 per cent of the practical work. She was able to work two to three days in a row, but then had to have days off. It will be necessary for her to complete the balance of her practical work at a later time. Before undertaking her practical work, she saw Dr Bowler and, between them, they decided that she should “see how you go”.
21 In addition to the practical work, she goes to lectures and stays home and participates online. To relieve the pain, she needs to lie flat on her stomach; this is difficult to do while at university. All her marks, so far, have been good.
22 Despite what was said in her affidavit, in cross-examination, she said she still socialised with friends, including going to dinner, to bars and movies.
23 In the practical work at the hospitals, she avoided using her back and, therefore, overcompensated, causing pain in her knees. She can bend but it caused pain. The harder tasks of nursing, including showering patients, lifting duties and bending, have been difficult. It has been suggested that she try an alternative path of study in areas such as mental health, psychology or social work, which require less bending, standing and lifting. She wishes to complete her nursing degree.
24 She has not been able to return to the gymnasium, carry out the fitness regimes she previously enjoyed, or participate in kickboxing. She has problems standing or sitting for any significant length of time.
25 Affidavits of Ms Deane’s father, and several of her friends, are supportive of her complaints of pain and restriction, and the consequences referred to in her affidavits.
26 The consequences which Ms Deane claims to suffer as a result of her lower back injury include:
·Constant pain in her lower back, focussed on the right side, with sharp pains into her buttock and down her right thigh
·She has difficulty standing or sitting for longer periods
·She wears a back brace
·She has pain in her knees, as she is careful about how she moves her back and compensates by placing more strain on her knees. She sometimes wears a knee brace
·She has lost the independence she previously enjoyed and now lives with her parents.
·She is unable to undertake the heavier domestic duties she was previously able to do
·She now cannot go to the gym, which she used to enjoy three or four times a week. She cannot undertake any of the programs, including kickboxing
·Her sleep is affected
·She takes medication regularly, now principally Panadol Osteo
·She used to enjoy walking, and walked extended distances. She still walks, but not as far
·She is significantly restricted in her work as a trainee nurse and cannot undertake the heavier duties.
Medical opinions
27 According to a report of Dr Brian Lovell, a pain management expert who saw Ms Deane in November 2012 upon referral from Dr Kagan, Ms Deane had improved since the incident, but still suffered continuing lower back pain of 6 to 7 out of 10, focussed on the right side. He had a “high index of suspicion” about the right sacroiliac joint.
28 According to her treating general practitioner in Adelaide, Dr Bowler, she first went to see him on 25 June 2012. He said that she slowly improved with a regime of physiotherapy and hydrotherapy. At various times, she required crutches to manage walking. He further treated her for a Reactive Depression. In his final report of 7 October 2015,[1] he said she had consulted him about her placement in hospitals as part of her nursing degree. He provided analgesia (Panadeine Forte) to help her cope with the pain. He said she also had a Reactive Depression and Anxiety related to her physical injuries. She was avoiding crowds, and seeing a psychologist. He prescribed the antidepressant, Zoloft. He said her back pain seemed to be the main “physiotherapy” problem. He noted a range of activities were restricted, including difficulty with squatting, showering people, running and jumping. In his most recent report, he said:
“She obviously has significant ongoing psychological and physical issues as a result of her injuries. Currently she is undergoing training to be a nurse. She is experiencing difficulties with intermittent nurse training placements. At this current level, I do not envisage her being able to do fulltime on four [sic] nursing duties if qualified. I cannot comment exactly on percentage residual disability, as I do not feel qualified to do so. She is trying her hardest to overcome her injuries. I see ‘no red flags’. She will likely experience ongoing limitations of social, occupational activities as well as sport/exercising recreations.”[2]
[1]Plaintiff’s Court Book (“PCB”) 45-6
[2]PCB 45-46
29 Ms Deane was examined by Professor Kenneth Myers, general surgeon, in 2014 and 2015. On the first occasion, she described symptoms of lower back pain always at the same level, from a niggle to pretty bad. She also described right sciatica, with pain in the buttocks and back of right thigh to the knee. He diagnosed her as suffering an injury to the intervertebral discs and small joints of the low lumber spine and he suggested further investigation with an MRI scan. He thought ongoing treatment would be conservative, involving physiotherapy and medications. As to employment, he said:
“She would be unable to resume pre-injury employment, either fulltime or part time. I am concerned about her ability to cope with work in the future as a nurse.”[3]
[3]PCB 54
30 Professor Myers said nursing was a profession notoriously prone to lower back strains. He said she would be restricted in her social, domestic, recreational and employment activities.
31 Dr Albert Kaplan, psychiatrist, diagnosed Ms Deane as suffering from an Adjustment Disorder which, by 2015, had gradually subsided, although she was still prone to Anxiety. He thought the prognosis was favourable unless her physical condition deteriorated. He thought she had the capacity for employment in a non-stressful environment.
32 On behalf of the defendant, Ms Deane was recently examined by Mr Michael Dooley, orthopaedic surgeon. He accepted that, in the fall, she sustained a soft-tissue injury to her lumbar spine, the exact nature of which is not entirely clear. He thought it was a musculoligamentous-type injury. He said the pain had improved with time. He noted that, soon after the injury, Ms Deane had become depressed and anxious, and he believed she had suffered a significant psychological reaction to her situation, but things had improved in that regard.
33 On examination, Mr Dooley noted she had an excellent range of movement in her lumbar spine, examination of the hips was normal and there was some intermittent knee pain. He thought that her knee pain was related to chondromalacia patella, and was incidental to the work incident. He did not think she had injured her sacroiliac joint, nor her hip. He thought, over the years, there had been an overall improvement in her situation and recommended she continued to exercise. He said there would be times when clinical nursing would place a strain on her lumbar spine, but that she would be able to cope.
34 Mr Dooley concluded she had a work capacity in relation to the hospitality injury, but would not be able to do regular heavy lifting or a lot of bending, twisting and manoeuvring. He said she had a capacity to carry out light physical work and clerical duties and would be able to work as a nurse.
35 Ms Deane was examined on a number of occasions by Dr Andrew Miller, occupational health consultant, in November 2012, and he made an inspection of the Grosvenor Hotel. He has no specialist qualifications. He said her precise diagnosis was uncertain but, possibly, she had suffered a musculoligamentous strain or an intervertebral disc lesion/facet-joint strain injury. He thought she was capable of working with restrictions, including avoiding lifting in excess of 5 kilograms, avoiding forceful pushing or pulling, prolonged static postures such as sitting or standing, and to avoid movements of her back beyond a comfortable range.
36 In March 2014, Ms Deane was examined by Dr Roy Karna, rheumatologist. He thought she had sustained a soft-tissue injury and some degree of right sacroiliac joint strain. He said that she had:
“… persistent posture and activity dependent pain since and does have dissymmetric back movements and thus has features consistent with the clinical injury to the back as well as symptoms, albeit no radiology.” [4]
[4] Defendant’s Court Book (“DCB”) 24
37 He thought the situation had stabilised.
38 Dr Ratnayake, psychiatrist, in 2012, did not think Ms Deane had developed a psychiatric condition and was not incapacitated for work.
39 Likewise, Dr Wendy Triggs, psychiatrist, in 2014, thought she was suffering a Mild Adjustment Disorder with symptoms of panic. She said an early return to the workforce would improve her mood. She said that the limitation Ms Deane was suffering was as a result of physical symptoms.
40 Dr Krapivensky, psychiatrist, examined Ms Deane in October of this year. She said Ms Deane did not have a psychiatric diagnosis and there was no need for any further psychiatric treatment. She said there was no working incapacity, from a psychiatric perspective.
41 Finally, a Vocational Assessment Report was provided from Recovre. That report examined a range of alternative employment prospects, including:
·inquiry clerk/customer service officer
·receptionist
·pharmacy sales assistant
·registered nurse.
Conclusions
42 I am satisfied in the subject incident, Ms Deane fell down the stairs at her workplace, landing heavily upon her buttocks. As a result, she suffered an injury to her lower spine. Although there is some uncertainty as to the precise diagnosis, most practitioners accept a soft-tissue injury. I accept the opinion of Professor Myers that the injury is to the intervertebral discs, and of Dr Karna, who said there was probably an injury to the right sacroiliac joint. There is no injury demonstrated on the MRI scan, but that does not mean Ms Deane does not suffer pain and limitation to that area. I am satisfied this has resulted in ongoing pain from 2012 to the present, principally in the lower spine, but with some referred pain into the right buttock and thigh.
43 To all of the practitioners who have examined Ms Deane, she has given a history of ongoing pain to the lower back more to the right side, sometimes not particularly debilitating, but on other occasions significantly worse requiring treatment by her general practitioner and the prescription of pain-relieving medication, principally now Panadol Osteo. The attendances on Dr Bowler are now only occasional, but I accept her evidence that each time she sees him, her lower back is discussed.
44 It is clear Ms Deane has suffered a significant psychological reaction to the injury which has required treatment and medication, although I reject the contention of the defendant that that has somehow amplified or aggravated the physical pain. It is clear from the bulk of the medical opinion that Ms Deane’s physical injury is substantially responsible for the pain and restriction of which she complains. There is no disentangling of psychological symptoms required.[5]
[5]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
45 I found Ms Deane a direct and honest witness. Video surveillance of the 20 October 2015 was shown and tendered. It showed her leaving the airport with a backpack on her back, which she moved from her back to her shoulder. She appeared to walk without restriction. She sat in a café with a friend for about two hours, standing and moving on a couple of occasions. She bent at 90 degrees from the waist once or twice. I did not see the surveillance as particularly inconsistent with her histories to the doctors, including Mr Dooley, whom she saw the same day, and with her evidence to the Court.
46 Ms Deane was an impressive witness. She answered questions in the manner of an honest witness and was completely frank in cross-examination. For example when asked about her social life, she said she did not associate much with other nursing students at university, but still socialised with friends in a range of social circumstances. I have no hesitation in accepting her descriptions of pain and restriction, and the effect upon her recreational, domestic and social activities. While she is still relatively young, and has now engaged in a nursing degree, I am satisfied that the impairment to her lower spine is permanent, in the sense that it is likely to persist. With the possible exception of Mr Dooley, there is no other practitioner suggesting the problems will resolve in the foreseeable future.
47 I accept Ms Deane’s evidence that she has difficulties standing and sitting for any length of time, is restricted in lifting and bending, and finds it difficult to obtain a good night’s sleep. While she was shown in the video surveillance sitting for two hours or so and bending on a couple of occasions, these re only a snapshot in time and her back is sometimes better than at other times. I accept her complaints of ongoing pain, made worse from time to time, depending upon the activity in which she is engaged. I accept her evidence about the difficulties that she has suffered in completing the practical part of her nursing course, and that on a recent four week placement, she was only able to complete half the necessary practical hours. I accept that, towards the end of the day, her back pain becomes worse and requires analgesia. I am not swayed from this view, because of the lack of clear pathology of injury, the relatively modest treatment and the lack of prescription medication. This is a case of ongoing constant lower back pain in a young woman.
48 Realistically, in accordance with the opinions of Professor Myers and Dr Bowler, the prospects of Ms Deane being able to work in the nursing profession are not great. It is well-known that in most areas of nursing, significant physical effort is required, with regular reports of low back strain from heavier nursing activities.
49 In all the circumstances, I am satisfied the consequences to Ms Deane achieve the “very considerable” level the legislation requires. Further, her injuries will, in all likelihood, mean she will not be able to work in her chosen career as a nurse. This is a matter which reflects in pain and suffering consequences.
50 The situation in relation to economic loss is somewhat more complex. It is one thing to say that Ms Deane is unlikely to be able to work in any realistic capacity as a nurse, it is another thing to say that she has no capacity for any other form of suitable work. The definition of “suitable employment” in the Workplace Injury Rehabilitation and Compensation Act 2013 requires the Court to take into account a number of matters when determining whether a worker has a capacity for suitable employment. These include the nature of the incapacity, the worker’s age, education, skills and work experience, and the nature of the worker’s pre-injury employment.
51 Ms Deane is a young woman, and would present well to most prospective employers. However, she has now, and will continue for the foreseeable future, constant low back pain and will remain limited in what she can physically do. Virtually all of the practitioners who have examined her suggest that any future employment will carry with it a range of restrictions:
· Mr Dooley considered she had the capacity to carry out only light physical work or clerical duties, although thought she could work as a nurse.[6]
[6]DCB 10
· Dr Miller said she should avoid lifting in excess of 5 kilograms, forceful pushing or pulling, avoid prolonged static postures such as sitting or standing for more than an hour and avoid movements of her back beyond a comfortable range.
· Her treating general practitioner, Dr Bowler, said that she would be unable to work full-time as a nurse.
· Professor Myers said she had no capacity for full-time unrestricted manual or pre-injury employment duties and that he was concerned about her ability to cope with work as a nurse.
52 To these opinions should be added the evidence of Ms Deane herself. While able generally to attend the lectures at the university, and attaining high marks in her subjects so far, she finds very real restrictions with the practical aspects of nursing. Further, she finds it difficult to sit or stand for long periods and needs to lie down. This is difficult at university, she said, and would be difficult in the average workplace. According to her affidavit, she is only able to work as a nurse for 20 to 22 hours per week[7].
[7]PCB 24b
53 In re-examination, she said, in relation to the areas of employment suggested by Recovre, that she would not be able to work full-time, but perhaps could manage about two days per week.
54 I conclude that the plaintiff has little capacity to return to work as a gaming assistant or working in a hotel. Her return to work attempt some time after the workplace injury was unsuccessful.
55 The report of Recovre identified a number of alternative areas of employment. In my view, working as a pharmacy sales assistant would be difficult, given it would require her to spend a considerable period of time on her feet during the course of the day. Likewise, as a receptionist, she would be required to sit for considerable periods and would have to find an employer prepared to allow her periods of rest, and the ability to move around. Work as an inquiry clerk or customer service officer is said to be an area of “sedentary” employment. Amongst the tasks said to be involved[8] include:
[8]DCB 55-6
·Sits frequently
·Stands and walks frequently
·Stretching, twisting, climbing and lifting may be necessary on an occasional to frequent basis
·Bending, squatting and crouching may be necessary on an occasional to frequent basis
·Repetitive movements will be required when driving and using a computer.
56 I conclude from this job description, that Ms Deane would be significantly restricted in being able to perform these tasks. She suffers constant pain in her back requiring analgesic medication. The only relief she is able to obtain is by lying down. I accept the proposition that, because of these physical difficulties, she would not be a reliable employee. I accept her assessment of the hours she would be able to work. That would be less than half a normal working week.
57 In the circumstances, I am satisfied that Ms Deane does have a capacity for some alternative employment, although it is difficult to ascertain what precisely that would be. It would need to be sedentary employment, within the restrictions set out by the various medical practitioners. While it is difficult to be precise, I am satisfied that the injury to her lower spine has reduced her earning capacity by more than 40 per cent. Given all the restrictions to which I have referred, both as to tasks and as to hours, I would assess her loss of earning capacity to be something in the order of 50 to 60 per cent. While there is the prospect in time, given her age, she will be able to increase her hours, at least for the present and for the foreseeable future she will suffer a reduction in her employment capacity of something in excess of 50 per cent.
58 I accept, for the purposes of the formula provided in s134AB(38)(e) and (f) of the Act, Ms Deane’s gross income which she was capable of earning from personal exertion in the three years before and after injury is the income recorded for the 2012 financial year, $46,631.00, or $896.00 per week. Of the various areas of employment suggested by Recovre, I am of the view Ms Deane does not have the realistic capacity to work as a nurse. The next highest paid area of employment is as an inquiry clerk with a gross weekly wage of $1,006.00. Fifty per cent of that is $503.00. Sixty per cent of her “without injury” earnings is $537.60. On this formula, the plaintiff’s work capacity has been reduced by more than 40 per cent as a result of injury.
59 In the circumstances, the plaintiff’s application both as to pain and suffering and economic loss succeeds. I shall make the appropriate orders.
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