Fisher v Alcoa of Australia Limited
[2010] VCC 1322
•24 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05585
| JAN FISHER | Plaintiff |
| v | |
| ALCOA OF AUSTRALIA LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 13 August 2010 |
| DATE OF JUDGMENT: | 24 August 2010 |
| CASE MAY BE CITED AS: | Fisher v Alcoa of Australia Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1322 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – identification of consequences of injury to the cervical spine – credit in issue – disentangling between emotional and physical consequences of injury – application in respect of pain and suffering and loss of earning consequences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn Pty Ltd |
| Mr D J N Purcell | ||
| For the Defendant | Mr C J Blanden SC with | Hunt & Hunt |
| Mr G J Moloney | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence an action claiming damages for injuries suffered by her in the course of her employment with the defendant. The plaintiff alleges that throughout the course of her employment with the defendant she was required to perform work involving repetitive arduous duties, and that as a result of performing this work, including on or about August 2004, in the course of “connecting a strap flexible and undoing bolts of a flume pipe,”[1] she suffered an injury to her cervical spine.
[1] Paragraphs 4 and 5 of the plaintiff’s proposed Statement of Claim, Plaintiff’s Court Book 10
2 In the course of the application, the plaintiff gave evidence and was cross- examined. Otherwise, the parties rely upon various affidavits and medical reports which appear in their respective Court Books.
3 In his address to me, Mr Blanden SC, who appeared on behalf of the defendant, made the following appropriate concession as to the assertion by the plaintiff that her injury has caused her to suffer a pecuniary loss which satisfies the threshold established by the Accident Compensation Act 1985 (“the Act”):
“Any other employment of which she is capable within the parameters of the medical reports is going to meet the theoretical test because she is not going to be able to get a job anywhere else doing that sort of work which will achieve an income of more than 60 per cent of what she was getting at Alcoa before the accident.” [2]
[2] Transcript (“T”) 81
4 This concession was made in the context of the uncontested evidence that:
•
Since commencing her employment with the defendant in 1995 and up to the time of her injury, the plaintiff had been employed at the defendant’s Point Henry smelter, working in pot lining duties;
•
By reason of the injury the subject of this application, the duties which the plaintiff was required to undertake in the course of her employment with the defendant were altered such that she was employed in restricted duties as a respiratory technician.
•
The plaintiff’s “without injury earnings” as a respiratory technician as at the date upon which she was last employed by the defendant on 5 March 2007[3] were $1,614.00 gross per week, 60 per cent of which is $968.00 per week.
[3] the relevant date fixed by the provisions of the Act
5 Having regard to this concession made on behalf of the defendant, I find it convenient, firstly, to analyse whether the plaintiff has made out her case that by reason of the subject injury she has lost the capacity to perform the duties involved in her work as a respiratory technician which she was carrying out at the time at which her employment was terminated by the defendant, as a finding in favour of the plaintiff on this issue would entitle her to the leave she seeks, both with respect to pain and suffering and pecuniary loss damages.[4]
[4] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
6 In an affidavit sworn 30 June 2010, Nicholas McAteer, the defendant’s occupational health and safety co-ordinator, deposes to the fact that the work undertaken by a respiratory technician is self-paced, does not require heavy lifting, repetitive or awkward movements, and involves handling items weighing no more than 1 to 2 kilograms. The work does involve, however, working with arms elevated for the purpose of “accessing the dryers and the items being placed into them”.[5]
[5] paragraph 5 of the McAteer affidavit
7 The McAteer affidavit exhibits a document summarising the physical demands associated with the occupation of a respiratory technician. Relevantly, those demands include lifting from floor to waist, pulling, pushing and working with arms elevated. These activities are described as being undertaken up to 4 hours a day in the course of a 12-hour shift.[6]
[6] Defendant’s Court Book (“DCB”) 39
8 The evidence given by the plaintiff relevant to her capacity to cope with the duties required of a respiratory technician is as follows:
“After injuring my neck I was initially put off work and then I returned to work on modified duties and reduced hours. I built my hours up to the usual 12-hour shift but I did not get back to full duties. The position as respiratory technician involved doing tasks such as cleaning masks and helmets, as well as handing out equipment. It was a job that was given to me because I could not do my usual duties on the pot line. I was struggling with the work as respiratory technician. Some of the tasks I had to do included washing helmets and taking helmets apart to clean them. There was a lot of repetitive use of my arms and some lifting involved. I worked a rotating dayshift as a respiratory technician. I would work a couple of days and then have a couple of days off. The work aggravated by neck and arm pain. I was spending my days off resting up so that I could try and continue on at work. I wanted to remain at work and I was worried that if I had too much time off, then I might lose my job. Apart from resting up on my days off, I also took some days off because of my symptoms.”[7]
[7] paragraph 4 of the plaintiff’s affidavit sworn 12 July 2010
9 In her affidavit dated 21 December 2007, the plaintiff deposed to the fact that her employment was terminated by the defendant in 2005 by reason of the fact that she could not perform her usual work.
10 The plaintiff’s evidence in this regard was not the subject of challenge in the course of her cross-examination.
11 In the course of her viva voce evidence, the plaintiff described the impact of her injury insofar as it was relevant to her capacity to work in the following terms:
•
She suffered a restricted ability to move her hand above the level of her head and accordingly that her ability to undertake tasks such as “pegging washing on the line; vacuuming; doing the dishes and cooking” was restricted.
•
She employed medication in the form of two to three tablets of Tramal each day in order to manage her symptoms and that when she tried to go without that medication “I actually had horrific pain and I vomit, and I’ll be in bed for the whole day without taking it”.
The Medical Evidence Relevant to the Plaintiff’s Capacity to Work
12 It is the general consensus of the medical evidence in this matter that the plaintiff is restricted to light forms of work by reason of the condition from which she suffers in her cervical spine.
13 Whilst Mr Darrel Nye, a neurosurgeon, who assessed the plaintiff on behalf of the defendant on 15 April 2008 and 20 April 2010, takes issue with the continuing relationship between any aggravation of the cervical degenerative disease present in the plaintiff’s cervical spine which was caused by her employment with the defendant and her continuing symptoms of neck pain or right arm pain, Mr Nye is the only medical practitioner to express this opinion, and for this reason, I do not find Mr Nye’s opinion upon that issue to be persuasive.
14 Upon the separate issue as to the capacity of the plaintiff to work given the condition of her cervical spine Mr Nye, in his report dated 22 April 2010, opined, when commenting as to the plaintiff’s physical capacity to undertake the light work required in the defendant’s respiratory protection area:
“I remain of the opinion that the plaintiff would be capable of undertaking duties described, the only reservations I would have relate to ‘working with arms elevated – required in order to use washing, dryers and reach items on the top shelves’ and I note that dryers are located above shoulder level.
I have previously indicated that any employment situations should exclude heavy physical requirements for (sic) use of the upper limbs in an overhead or our (sic) outstretched manner.”[8]
[8] DCB 119
15 Mr K Elsner, an orthopaedic surgeon, who examined the plaintiff on behalf of the defendant on 28 February 2006, 7 September 2006, 12 July 2007, 3 February 2009 and 16 June 2010, opined, in a medical report dated 18 June 2010:
“It is my opinion that her present and future capacity for work is such that she is fit for full time work that avoids heavy lifting activities, repetitive extremes of head and neck movement, prolonged upward and downward gaze, and heavy stressors on her upper extremities. It is also my opinion that she could undertake recreational pursuits that avoid the same stressors.”[9]
[9] DCB 125
16 On 24 June 2009, Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, opined that the plaintiff:
• Presented as a co-operative, articulate woman and that “there was certainly no evidence of overreaction or non-organic signs” in her presentation; • Suffered from neck pain associated with symptomatic spondylosis, that her symptoms were organic in nature and that psychological sequelae were not the drivers of her pain syndrome; • Had a capacity to perform very light, self-paced office-type duties on a full-time basis but that her capacity to undertake office duties where a degree of neck flexion was required throughout the working day should be limited to 24 hours per week and her capacity to undertake light process work, in which he placed a lifting restriction of 2.5 kilograms, was limited to 18 hours per week. 17 Dr Richard Bittar, a neurosurgeon, who examined the plaintiff on 3 July 2008 and 1 January 2010, expressed the opinion that the plaintiff:
• Suffered from neck pain and cervical radiculopathy; • Was totally incapacitated for work; and • Was restricted in her ability to engage in “any repetitive upper limb activity or significant neck movements”. 18 Mr Kevin King, an orthopaedic surgeon, who examined the plaintiff in late 2006, described the plaintiff as being chronically disabled due to a moderately severe degree of constant neck pain and stiffness due to persistent nerve root irritation. He opined that the plaintiff was permanently unfit to return to manual physical work on the Alcoa refinery floor, but that she may be able to manage part-time light office work if this was made available to her.
19 Dr A K Sachdev, the plaintiff’s treating general practitioner, in a report dated 14 November 2009, opined, as to the plaintiff’s capacity for employment:
“In my opinion, theoretically she could work on part-time alternative duties which did not involve repetitive movements of her neck or over the shoulder height use of her right upper limb.”
20 Associate Professor John Balla, the plaintiff’s treating neurosurgeon, in a report dated 8 February 2006, opined that the plaintiff’s symptoms of neck pain and pain and numbness extending from her shoulder to her fingertips were related to an irritation of her C6-7 nerve roots, that she was not fit to resume her pre-accident employment duties, but that she was fit to undertake work which did not involve heavy lifting.
21 Mr Peter McNeill, neurosurgeon, in a report dated 7 March 2005, expressed the opinion that the plaintiff suffered from cervical disc pathology which was in a large part contributing to her symptoms and that her condition was such that she would “never be able to perform any heavy arduous tasks”, but that she should be able to work full-time in lighter work such as office tasks.
The Plaintiff’s Credit and the Disentangling Issue
22 The defendant in this proceeding takes issue as to the plaintiff’s credibility. It asserts further, that the plaintiff is required to “disentangle” the relationship between her symptoms, in as much as there is medical evidence which suggests that the plaintiff presents with pain which has both physical and psychological aetiology.
The Plaintiff’s Credit
23 It is asserted by the defendant that the plaintiff has made inconsistent statements as to suffering work-related symptoms of neck pain at any time prior to 20 August 2004 and that this inconsistency tells against the plaintiff’s credit generally.
24 In the course of her cross-examination, the plaintiff denied any inconsistency in complaints or histories provided by her upon the issue as to whether she was suffering from work-related symptoms of neck pain prior to 20 August 2004. In particular, the plaintiff gave evidence that she had told her supervisor, Mr Wimmer, that she had suffered from neck symptoms prior to 20 August 2004[10] and that she had reported the presence of symptoms to Mr Bruce Bramble on 19 August 2004.
[10] T 33
25 In her affidavit sworn 21 December 2007, the plaintiff deposed to the fact that upon arriving at work on 20 August 2004, she reported to the defendant’s safety representative, Mr Paul Tucker, the fact that she was suffering from symptoms in her neck.
26 When I take into account the failure by the defendant to adduce any evidence which contradicts the evidence given by the plaintiff as to her report of the presence of neck pain in association with the duties she was required to perform in the course of her employment with the defendant prior to 20 August 2004, and take into account that which I consider to be a very positive factors in favour of the plaintiff’s credit, namely:
•
Her return to restricted duties with the defendant notwithstanding the presence of continuing symptoms of neck and arm pain;
•
The gradual build-up by the plaintiff of the hours she worked in restricted duties with the defendant until she worked her usual 12-hour shift;
•
The plaintiff’s continued performance of her restricted duties up to the date of her termination by the defendant notwithstanding that the work aggravated her symptoms;
I consider on balance that the evidence speaks in favour of the plaintiff’s credit rather than against it.
The Disentangling Issue
27 Both Mr Elsner and Mr Nye opined that the plaintiff presented with what Mr Elsner described as inappropriate illness behaviour,[11] and Mr Nye termed significant functional features[12] and that this was a significant aspect of her presentation.
[11] DCB 124
[12] DCB 96
28 Mr Terry Chong, a psychiatrist, who examined the plaintiff on 2 June 2009 on behalf of the defendant, opined:
[13] DCB 113
• That the plaintiff suffered from a pain disorder associated with both psychological factors and a general medical condition • That the psychological contribution of this disorder was probably minor.[13] 29 Having regard to the fact that both Mr Nye and Mr Elsner expressed the opinion that the plaintiff’s organic disability rendered her fit only for light forms of work, the question of disentangling assumes only marginal relevance to my analysis of the extent of the economic loss suffered by the plaintiff given that my analysis in this respect is undertaken on the basis of what has been identified by all medical practitioners as an organic incapacity in the plaintiff to perform, at the very best, restricted light forms of work.
30 Insofar as I am required to disentangle the effect of the plaintiff’s organic injury from any emotional injury she suffers however, having regard to the fact that:
•
The plaintiff’s treating doctors, namely Dr Sachdev, Professor Balla and Mr McNeill, did not comment upon the presence of any emotional factors influencing the plaintiff’s level of pain and that this position was reinforced by Dr Bittar, Mr King and Dr Clayton Thomas;
•
In his most recent report, Dr Chong, who as a psychiatrist is well placed to opine as to the importance of emotional factors in the plaintiff’s presentation, commented that the plaintiff presented with both a pain disorder and associated psychological factors, and described the psychological contribution to the plaintiff’s presentation as being “ probably minor”,
I am satisfied that the plaintiff’s presentation is explained primarily by organic symptoms and that the significance of any psychological contribution to her symptoms is appropriately described as being minor.
Findings as to the Plaintiff’s Present Capacity to Undertake the Tasks Involved in the Occupation of a Respiratory Technician Employed by the Defendant
31 When account is taken of:
•
The plaintiff’s evidence that she relies upon Tramal on a daily basis, which she supplements with the use of Nurofen and Panadol in order to maintain her levels of pain at a base level, which evidence is not in dispute;
•
The plaintiff’s evidence, which I accept, that she had difficulty performing the duties required of her as a respiratory technician and that the work aggravated her neck and arm pain.
•
The plaintiff’s evidence that she suffered a restricted ability to move her hand above the level of her head and that her ability to undertake tasks such as “pegging washing on the line” was restricted, which evidence is again not challenged by the defendant;.
•
The opinion of Mr Nye that he had reservations as to the plaintiff’s ability to undertake work requiring her arms to be elevated and has opined that her employment should be restricted to activities which do not require the use of her upper limbs in an overhead or outstretched manner;
•
The list of activities required of a respiratory technician which are clearly such that Dr Thomas would regard the plaintiff’s capacity to undertake those activities to be questionable and at best being a capacity to perform those activities for not more than 18 hours per week;
•
The opinion of Dr Sachdev that the plaintiff is not fit for work which involves “over the shoulder height use of her right upper limb” and that this activity is clearly involved in the work required of a respiratory technician, which involves working with arms elevated for up 4 hours in the course of a 12-hour shift;
•
The opinion expressed by Dr Bittar that the plaintiff was unfit to engage in any repetitive upper limb activity and that this restriction, when combined with the plaintiff’s need to adjust her posture on a frequent basis, rendered her “totally incapacitated for work”;
•
The fact that whilst Mr King, Mr McNeill and Professor Balla did not specifically consider the plaintiff’s ability to undertake the tasks involved in the position of a respiratory technician, each of these doctors expressed the opinion that the plaintiff was suffering from nerve root irritation at the C6-7 level of her cervical spine which rendered her fit only for restricted forms of employment;[14]
[14] I interpret the comments made by each of these experts in their reports as being generally supportive of an incapacity in the plaintiff to undertake activities which require her to work repeatedly with her arms elevated.
I am satisfied that the plaintiff has established that she does not possess the capacity to undertake the work required by a respiratory technician employed by the defendant, and that her incapacity in this regard is permanent.
32 Accordingly, I am satisfied that the plaintiff has established that the organic consequences of the injury which she has sustained to her cervical spine by reason of the duties which she was required to perform in the course of her employment with the defendant are such as to meet the statutory threshold of loss of earning capacity as established by the provisions of the Act.
33 Having made this finding, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for both the pain and suffering and economic loss consequences of the injury suffered by the plaintiff in the course of her employment with the defendant.[15]
[15] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
34 I will hear the parties as to the precise form of the orders sought and upon the issue of costs.
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