Flannigan v Wesfarmers Limited
[2013] VCC 631
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04505
| KARLIE MERINDA FLANNIGAN | Plaintiff |
| v | |
| WESFARMERS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 May 2013 | |
DATE OF JUDGMENT: | 24 May 2013 | |
CASE MAY BE CITED AS: | Flannigan v Wesfarmers Limited | |
| MEDIUM NEUTRAL CITATION: [First Revision 5 June 2013] | [2013] VCC 631 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to left wrist – whether the consequences of the injury were at least “very considerable”
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 commence an action claiming damages for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Lawyers |
| For the Defendant | Ms R Boyce | Herbert Geer Lawyers |
HIS HONOUR:
1 Karlie Flannigan alleges that she suffered injury to her left wrist in the course of her employment with the defendant. She seeks the leave of this Court to issue proceedings to recover pain and suffering and pecuniary loss damages in respect of that injury.
2 Her 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 the injury suffered by her is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Ms Flannigan’s left wrist and forearm.
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 An 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 or loss of earning capacity consequences 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)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Ms Flannigan has suffered the loss of earning capacity required by s134AB(38)(b) unless she establishes, in addition to the requirements of s134AB(38)(b) and (c), that at the date of the hearing of the application, she has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with ss(38)(e), (f) and (g).
8 Ms Flannigan submits that the pain and suffering and loss of earning capacity consequences of her injuries can fairly be described as being “more than significant or marked” and “at least very considerable”. The defendant denies this is so.
9 The defendant does not dispute that Ms Flannigan has suffered an injury to her left wrist. The matters in issue and to be determined in this application are:
(a)Whether the pain and suffering or loss of earning capacity consequences of such injury can be fairly described as being “at least very considerable”?
(b)Whether Ms Flannigan suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act.
Background
10 Ms Flannigan is presently aged forty-five. She is married with three sons, presently aged eighteen, sixteen and fifteen.
11 She completed her schooling in 1984, when aged sixteen. She did not complete Year 10 due to frequent absences from school due to an asthmatic condition.
12 She has a good employment record. She was employed by the Commonwealth Bank of Australia from 1988 to 2000, during which period she took some maternity leave following the births of her sons. In late 2002, she commenced work with the defendant (Coles) initially as a casual employee. She later became a permanent employee, working at Coles stores in Reservoir and Bundoora. She was employed on a full-time basis and worked her way up to be bakery manager.
13 On 17 December 2004, she slipped and fell on a slippery floor at work. She fractured the distal radius of her left forearm and was taken to hospital for treatment. Her arm was x-rayed and placed in a plaster cast.
14 In February 2005, she returned to work performing light duties as a checkout service manager (which position was also referred to as a customer service supervisor). She continued to work on a full-time basis.
15 Her initial treatment consisted of manipulation and setting of the fracture of the distal radius of her forearm. Symptoms of pain continued, and in September 2005, she underwent a bone scan. In early 2006, she was sent for further x‑rays and for an MRI scan. The scan revealed damage to the triangular fibro-cartilage complex (“TFCC”) and a small ganglion cyst.
16 She was referred by her general practitioner to orthopaedic surgeons, Mr Norsworthy and Mr Pullen. She received a cortisone injection and in August 2006, underwent surgery, consisting of a De Quervain’s release and debridement of the TFCC tear. Thereafter, she was referred to Ms Maloney, a hand therapist.
17 Prior to and since that first surgery, she has been prescribed the analgesic Panadeine Forte, and has also taken Panadol tablets.
18 In September 2006, Ms Flannigan returned to work on light duties on a part-time basis. She worked four hours per day, three days per week. By early 2007, this had increased to six hours per day, three days per week. In April 2007, she was working five hours per day, four days per week, a total of 20 hours per week. This is as close as she came to resuming normal working hours.
19 In May 2007, she underwent an x‑ray-guided injection into her wrist. She was seen by a Dr Shachna, rheumatologist, and in September 2007, commenced treatment from another hand therapist, Ms Fitzgerald.
20 In February 2008, she underwent unrelated cardiac surgery from which she appears to have made a relatively quick and full recovery. In mid-2008, she became somewhat depressed and was referred to a psychologist.
21 In August 2008, she was referred to Mr McCombe, hand surgeon, and for a second opinion, to Mr Berger, also a hand surgeon. She continued working for Coles, 20 hours per week, performing light duties with no lifting and no repetitive use of her left hand or wrist.
22 In May 2009, Mr McCombe performed a second surgical procedure – a corrective osteotomy of Ms Flannigan’s left distal radius involving the fitting of a plate. Following that procedure, she was referred for further hand therapy from Ms Schibli, from whom she continues to receive regular treatment until the present time. She ceased work with Coles shortly before that procedure and has not returned to work with the company since.
23 In November 2009, Ms Flannigan underwent a third surgical procedure, being a reconstruction of the distal radio-ulnar joint ligaments by means of a tendon graft.
24 She remained absent from work. In August 2010, Coles terminated her employment on the grounds that there was no reasonable prospect of her resuming her pre-injury duties and that there were no other suitable positions available for her with that company.[4]
[4]Termination letter at Plaintiff’s Court Book (“PCB”) 155
25 In October 2010, Ms Flannigan sought and obtained contract work with Nillumbik Shire Council at its Living & Learning Centre. Her duties involved the tutoring and training of adults who were suffering from a disability. This work involved four hours per day for one day per week. In addition, she worked for three hours on one Saturday each month. Her weekly four hours of work consisted of performance of duties for two hours followed by a 30-minute rest break, followed by a further two hours. She continued with these duties until August 2012, when her position was terminated as a consequence of cessation of funding. On one occasion only, she was asked to come back to the Centre to perform such duties for a couple of hours in November 2012. She has not performed work or been employed elsewhere since.
26 In addition to her schooling up to Year 10, Ms Flannigan has obtained a Certificate IV in Disability Work in February 2010 and a Certificate IV in Training and Assessment in July 2010. The former course consisted of three hours on one night per week over about forty weeks. The latter course consisted of about five hours per week over a period of six months. The latter course had been funded by Coles, whilst she had funded the first mentioned course herself. She was hopeful that by attempting such courses, she would be able to find some suitable employment. This has not been the case. Following completion of the Certificate in Training and Assessment, Coles advised her that they had no such position that they could offer her.
27 Ms Flannigan had become involved in the Scouting movement when her sons were young. She has maintained that interest and involvement. This involves attendances at camps and jamborees. Often, she has been assisted on such occasions by a carer who has assisted her with physical activities such as pitching her tent, which involved use of her left wrist.
Diagnosis of injury
28 It is not in issue between the parties that Ms Flannigan suffered a left Colles’ fracture of the distal radius of her forearm, a tear in the TFCC and a small ganglion cyst as a consequence of the accident.
Capacity for employment
29 Ms Flannigan has not worked on a full-time basis since her first surgical procedure in August 2006. Between the date of the injury and that surgery, she had been able to work full time performing light duties with the defendant. She has not worked at all since her contract with the Nillumbik Shire Council ended in August 2012.
30 Ms Flannigan’s general practitioner, Dr Chao, considers she is limited in her employment capacity as a consequence of her wrist injury and unable to do any activity involving lifting or repetitive movements with her left wrist. He reported that she has limited suitable employment opportunities due to the injury, but that it was difficult to comment on the extent of that working capacity in suitable employment.[5]
[5]Dr Chao, PCB 43
31 In May 2012, Ms Flannigan’s treating hand surgeon, Mr McCombe, reported that she had an ongoing significant level of disability relating to reduced grip strength and activity related pain and that her capacity for pre-injury duties would be restricted. He considered that she had ongoing significant symptoms and disability. He did not specifically identify duties that she would or would not be able to perform in the course of employment or express a view as to the hours of employment which she was to undertake.[6] Mr McCombe had noted premature arthritis shown on her x-ray of October 2011.[7]
[6]PCB 48
[7]PCB 47
32 The hand therapist, Ms Fitzgerald, treated Ms Flannigan from October 2007 to August 2008 and saw her on a medico-legal basis in July 2012. She considered that Ms Flannigan only had a capacity to work with persons with top end disabilities (that is, relatively minor disabilities), where people were not needing intervention or personal care. She considered that while she was, when last seen, managing tutoring work for four hours per week, she could possibly manage more hours in such work but she would not recommend more than four hours per day.[8]
[8]PCB 54
33 Ms Flannigan’s current hand therapist, Ms Schibli, reported that she did have a capacity to work but would be restricted in the nature and duration of activities performed.[9] She did not otherwise opine as to the nature of duties that could be performed or the hours of work per week with which she could cope.
[9]PCB 57
34 Mr Christopher Pullen’s report of September 2008 was tendered. This was some four-and-a-half years ago and prior to the second and third surgical procedures. I do not find the views expressed at that time to be helpful in assessing Ms Flannigan’s current work capacity.
35 Dr Helen Sutcliffe, occupational physician, was of the view in July 2012 that Ms Flannigan was unable to work in the general range of disabilities service officer tasks and believed that she was fortunate to have found the work that she did with Nillumbik Shire Council. Dr Sutcliffe had been provided with reports of Co-Work Pty Ltd, vocational consultants, setting out a number of job descriptions which it considered were suitable for Ms Flannigan. Dr Sutcliffe considered that Ms Flannigan would be unable to perform a number of jobs proposed. These included the occupations of disabilities service officer, customer service officer in banking or that of vocational trainer. She concluded that she could currently work as a part-time disabilities officer for four to six hours per week.
36 The plaintiff was seen by Mr John Anstee, plastic and reconstructive surgeon, in February 2009, March 2011, August 2011 and March 2013.
37 On the last occasion, Mr Anstee noted a decrease in flexion, extension and ulnar deviation of the left wrist, whilst radial deviation had increased slightly. He did not consider that further surgical treatment would be of benefit to Ms Flannigan.[10] Mr Anstee considered that Ms Flannigan had the capacity to perform the duties that she had previously performed with the Nillumbik Shire Council. He thought that she could commence back on such duties at four hours per day, two days per week and build this up over a month to four days per week. He thought it would then be appropriate to review her.
[10]PCB 33B
38 Mr Anstee further considered her capacity to perform the jobs identified by Co-Work Pty Ltd in its reports dated 30 April 2012 and 29 June 2012.[11] These were the positions of a disability service officer, a bank teller and a vocational teacher/trainer.
[11]Defendant’s Court Book (“DCB”) 75 and 115 respectively
39 Part of the problem in determining whether Ms Flannigan is capable of performing such work and, if so, in determining the hours per week she would be capable of working, is that the job descriptions contained in the Co-Work reports are, in my opinion, vague. Mr Anstee’s comments concerning Ms Flannigan’s capacity to perform the duties of a disabilities service officer[12] demonstrate this clearly. Nevertheless, he is of the view that she could cope with the duties of a bank teller, although he thought she may be less efficient than she had been prior to her injury in the performance of duties such as counting notes.
[12]DCB 33D
40 He thought the work of a vocational teacher and trainer would seem ideal for her.
41 However, Mr Anstee thought that she should begin such a return to work “gently” at four hours per day and one day per week for two to three weeks, and then increase the days per week so that by the end of four to six weeks, she was working four hours a day, five days a week. At that stage, it would be appropriate to review her to see how she was managing.
42 I do not consider that such an approach realistically reflects the availability of suitable work for Ms Flannigan. I consider that it is extremely unlikely any employer in the real world would agree to such terms as proposed by Mr Anstee. I do not consider that such an approach reflects a real employment position.
43 Further, I note that Ms Flannigan has had, pre-injury, experience working for a bank, and is familiar with the duties involved in such employment. She does not believe she would cope with such duties. Many of those duties involve the use of both hands and forearms handling and counting banknotes, coins and other documents.
44 I take into account the nature and consistency of Ms Flannigan’s complaints to her treating hand therapist, Ms Schibli. I accept those complaints were and are genuine and reflect the pain and restrictions experienced by her. In particular, her restrictions in performing housework and driving a car lead me to conclude that I should accept the opinions of Ms Fitzgerald and Ms Katrine Green to the effect that Ms Flannigan, although not totally disabled, has a capacity to work not more than 20 hours per week.
45 I prefer the analysis of Ms Green to that of Co-Work. In particular, I note the views of Co-Work regarding Ms Flannigan’s ability to work as a financial planner or financial investment adviser. I consider, given her Year 10 education and work experience, such a suggestion borders on the absurd. I accept that many of the duties of a disability services officer would involve assisting disabled adults with transfers from and to wheelchairs, beds, bathroom facilities and the like, for which an ability to use both arms and hands would be required. She would be unsuited by reason of her injury for such duties. Similarly, I do not consider she would be suited to the duties of a bank teller which would involve frequent use of both hands.
46 I accept that Ms Flannigan has a capacity to work up to 20 hours per week as a customer service officer or similar.
47 Ms Flannigan submits that I should work on the Award rates provided by Flexi Personnel as demonstrating that she would not be likely to earn more than $22 per hour in any part-time suitable employment.[13] Even if she was able to perform part-time work as a bank employee, such as described in the advertisement tendered by the defendant,[14] she would be unlikely to earn more than $23 or perhaps $24 per hour.
[13]PCB 152
[14]DCB 127L
48 The defendant relies on the evidence of Co-Work set out in its report of 5 April 2013 relating to “average” hourly rates for occupations including disability services officer, bank teller, and financial investment adviser.
49 For the reasons expressed above, I do not regard the occupations of financial investment adviser, disability services officer or bank teller as being suitable for Ms Flannigan. Whilst I accept that she is capable of some part-time work, I consider it unlikely that she would be able to work for more than 20 hours per week or earn more than $24 per hour.
50 The parties agreed that if I found that Ms Flannigan was not capable of earning $25,579.20 per annum (or the equivalent of $491.90 per week), she would have established a loss of earning capacity of 40 per cent or more. I consider that such a loss is “serious” within the meaning of s134AB (38)(b) and (c).
51 For the reasons expressed above, I am satisfied that Ms Flannigan has suffered a loss of earning capacity of 40 per cent or more when calculated in accordance with the Act.
Pain and suffering consequences
52 In view of my findings concerning loss of earning capacity consequences of Ms Flannigan’s injury, it is, strictly speaking, not necessary to consider pain and suffering consequences. However, I shall do so in case my earlier findings are the subject of appeal.
53 I preface my findings by saying that I found that Ms Flannigan was a reliable and honest witness. It was not suggested by counsel for the defendant that I should find otherwise. In cross-examination, her credit was not challenged.
54 Although the defendant submitted that, based on comments of Mr Anstee, Ms Flannigan may not have been fully motivated to return to full-time work, I found that the evidence indicated the contrary. On any view, she suffered a substantial and painful injury to her left wrist. She has undergone three substantial surgical procedures. Following her injury, she returned to work with Coles as soon as she could and worked on despite continuing pain and restriction in her wrist. She returned to part-time duties after the first and second surgical procedures. She remained hopeful that she would be able to return to work after the third bout of surgery. Regrettably for her, Coles terminated her employment. Since that time, she sought part-time work with Nillumbik Shire Council and continued working, essentially, four hours per week until the funding for that project was withdrawn. I consider that she is properly described as being stoic and consider that she has done her best to remain in the workforce following her injury. She candidly conceded that she was still hopeful of obtaining some part-time work in the future and had been seeking such work.
55 I consider that the evidence discloses the following pain and suffering consequences of her injury:
(a)She has suffered substantial pain from the time of the accident. Her pain continues.
(b)The level of her pain has led to prescription of the strong analgesic Panadeine Forte, which she has taken regularly for nearly nine years. She still takes Panadeine Forte two or three times per week when required and regularly takes Panadol tablets which she can purchase without prescription.
(c)Her sleep is affected regularly by pain from her wrist and forearm. She has been prescribed Endep to assist with this for many years.
(d)By reason of her injuries, although she may not be totally incapacitated and is capable of performing some part-time work, the range of employment opportunities open to her has been greatly reduced. She enjoyed her employment with Coles and there was no reason to doubt that she would have continued in such employment or similar until a normal retirement age.
(e)As a consequence of her inability to remain in full-time employment and difficulties in obtaining suitable part-time employment, she and her family have been placed under considerable financial pressure.
(f)Although she has not been seen recently by her treating surgeon, and only spasmodically by her general practitioner, I do not consider that such factors lead to a conclusion that her pain or suffering is minor. Mr McCombe’s opinion, and that of other medical practitioners, is that further surgery is unlikely to benefit her. This is not to say that surgery is not warranted by reason of her lack of symptoms. Likewise, this is not a case where treating doctors have provided treatment advice to Ms Flannigan and that that advice has been ignored. As far as I can determine, Ms Flannigan has followed the advice of her treating practitioners and specialists at all times. She has undergone invasive procedures such as cortisone injections and three substantial surgical procedures.
(g)She has found it necessary to continue with hand therapy from various therapists for many years and continues to see Ms Schibli regularly up to the present time. This treatment is paid for by the defendant and I infer that it is conceded that it is reasonable and necessary.
(h)Her wrist pain is such that she wears a wrist support regularly. In addition, from time to time, she has been required to use a splint for additional support.
(i)The clinical notes of Ms Schibli were tendered.[15] These related to the period between January 2012 and March 2013. The histories recorded by Ms Schibli indicate virtually constant complaints of pain aggravated by physical activities and driving. She is better when at rest. The histories contained in those notes are consistent with the plaintiff’s evidence.
(j)She experiences additional pain when driving a motor vehicle.
(k)She has been unable to continue playing golf and bicycle riding. Although they may not have been passionate pursuits, I accept that they were regular and enjoyable outdoor activities for her.
[15]PCB 58a-58i
56 There was no medical opinion that the symptoms complained of by Ms Flannigan were likely to improve to any degree in the future. In that sense, I find that those consequences are permanent.
57 The defendant submits, and I accept, that she has been able to attend to lighter housework tasks, food preparation and cooking, shopping, and driving of her sons to various functions. It appears that she and her husband share household tasks, although she avoids the heavier of such tasks.
58 I accept her evidence that, whilst she is able to participate in scouting activities, these are more difficult for her because of wrist and arm pain.
59 The defendant submitted that I should draw an inference from the failure to call Dr Shachna or Mr Berger, that their evidence would not have assisted her claim. They were both doctors upon whom Ms Flannigan attended in order to obtain second and third opinions as to whether further surgery should be performed. I do not consider it unusual for such additional opinions to be obtained prior to substantial surgery. Her evidence was that those persons, like Mr McCombe, did not recommend further surgery.
60 I am satisfied that the level of wrist and arm pain suffered by Ms Flannigan and the restrictions which that pain places upon her day-to-day life and her ability to earn income, are such that it is appropriate to describe the consequences of her injury as more than “significant” or “marked” and as being “at least very considerable”.
61 In those circumstances, Ms Flannigan is entitled to the leave sought by her in this application.
Conclusion
62 For the reasons set out above, I am satisfied that Ms Flannigan has suffered a “serious injury” as defined in the Act.
63 There will be leave pursuant to s134AB(16)(b) of the Act for Ms Flannigan to commence a proceeding to recover pain and suffering damages and pecuniary loss damages in respect of the injury suffered by her in the course of her employment on or about 17 December 2004.
64 I shall hear the parties in respect of orders sought as to costs.
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