Flood v Select Services Victoria Pty Ltd and VWA
[2011] VCC 495
•11 April 2011
| IN THE COUNTY COURT OF VICTORIA | (Not) Revised Not Restricted |
| AT MELBOURNE CIVIL DIVISION DAMAGES AND COMPENSATION SERIOUS INJURY DIVISION |
Case No. CI-09-04972
| KERREN FRANCES FLOOD | Plaintiff |
| v | |
| SELECT SERVICES VICTORIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 March 2011 |
| DATE OF JUDGMENT: | 11 April 2011 |
| CASE MAY BE CITED AS: | Flood v Select Services Victoria Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 495 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(37) – Pain and suffering and loss of earning – serious injury to the spine – leave granted
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC | Vincent Verduci & Associates |
| With Mr M Walsh | ||
| For the First Defendants | Mr M Clemens | Herbert Geer |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the first defendant between 2001 and May 2006.
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 s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the spine, in particular the cervical spine.
6 The plaintiff relied upon three affidavits, sworn 11 March 2009, 16 April 2010 and 25 July 2010, and an affidavit sworn by Nicole Flood on 25 July 2010. The plaintiff, Dr Garry McInerney and Dr Melissa Hayes were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 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 defendant between 2001 and May 2006.2
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.3
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act: an impairment or loss of body function, [in this case, the pain and suffering], shall not be held to be serious unless the consequences, when judged by comparison with other cases, is: “An impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function …, fairly described as being more than significant or marked, and as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:4
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the
S.134AB(19)(a) of the Act
S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
Barwon Spinners (op cit) at paragraph [33]
[2009] VSCA 181
other. … .”[5]
[5] Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering and loss of earning capacity, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
15 An alternative position was that if I find the neck or back or one or the other, amount to a serious injury, then that is, subsequent to the plaintiff’s employment with the defendant.
The Plaintiff’s Evidence
16 In her first affidavit sworn on 11 March 2009, the plaintiff deposes that:
•
She was born on 26 November 1956. She worked in various positions. Between 1982 and 1991, she was a full-time mother. Between 1992 and 1995, she worked part-time at Como Private Hospital as a cleaner and personal services assistant. In 2000, she worked for Nationwide Cleaning Service as a cleaner, before commencing a course with Select Services Victoria Pty Ltd to become a personal care assistant. The course took approximately twelve months.
•
Between 2001 and 2006, she worked for Select Services Victoria Pty Ltd as a personal care assistant. This position required her to care for physically disabled patients. Her duties involved assisting patients with tasks, including showering, dressing, getting into and out of wheelchairs and beds, and escorting them to medical appointments. In about May 2006, her employer changed from Select Services Victoria Pty Ltd to AQA Victoria Limited, but her duties stayed the same.
•
Between 2001 and March 2007, in the course of her employment, she injured her spine as a result of performing her duties. In particular:
ƒ
On or about 9 September 2003, she was assisting a patient into bed when she stretched and twisted awkwardly to support the weight of the patient and felt a cracking sensation in her neck;
ƒ On or about 24 March 2004, she was pushing a heavy client in a
wheelchair up a steep hill and sustained an injury to her lower back;ƒ In early 2007, she was assisting a patient from the hoist into bed
when she hurt her back and noticed soreness in her back;
•
In September 2003, her general practitioner referred her for physiotherapy treatment as a result of the September 2001 injury.
•
From about 17 September 2003 to October 2004, she regularly attended Dr Melissa Hayes, chiropractor, for treatment to her neck and right shoulder.
•
Her general practitioner then referred her to Mr Armin Drnda, neurosurgeon, for opinion and treatment.
•
Between December 2003 and March 2004, she continued seeing her general practitioner. She remained at work, taking pain medication, including Nurofen and Voltaren, which masked the pain.
•
After the 24 March 2004 incident, she attended her general practitioner, who certified her unfit for work for about three weeks and prescribed Panadeine Forte for the pain.
•
Between 2004 and 2006, she continued to experience pain in her neck and back. She continued to receive medical treatment, including chiropractic treatment, and took pain medication.
•
She continued to work up to early 2007 but experienced pain in her neck and back.
•
In early 2007, she returned to her general practitioner due to increasing pain in her neck and back and was certified unfit to return to work.
•
She ceased work in March 2007 and has not returned since that time. She attempted voluntary work in 2007, but was unable to continue due to her physical limitations.
•
She continues to experience pain in her neck, right arm and lower back, and is starting to experience pain in her left arm as a result of preferring it to her right arm.
•
Since about 20 June 2008, she has regularly consulted Dr Varney, general practitioner. She believes that she requires treatment from a chiropractor and a physiotherapist, but she cannot afford this treatment.
•
In January 2009, Dr Varney referred her back to Dr Drnda, who advised her that she was not fit to return to work.
•
In 2004 and 2007, she submitted WorkCover Claim Forms as a result of the injuries with the defendants.
•
She had not sustained any significant injury to her neck or lower back prior to the injuries the subject of this application. Her health was generally good.
•
Her injuries have significantly affected her social, recreational and domestic capabilities. Since the injury, her range of activities is restricted. She used to walk her friend’s dog but now finds that difficult. She experiences difficulty with household chores, including vacuuming and hanging the washing on the line. She finds it difficult to catch public transport and sit down for any length of time and driving for any length of time aggravates her back and neck. She currently lives with her youngest daughter and her daughter’s partner as she cannot afford to maintain her own house now, but she feels she is a burden on them.
•
Her injuries have caused her emotional stress and she has found it difficult to maintain relationships since her injury. She has suffered depression and has consulted Dr Varney for depression since 2008.
17 In her second affidavit sworn 16 April 2010, the plaintiff reiterated the content of her first affidavit.
18 In her third affidavit sworn 23 July 2010, the plaintiff deposes that:
•
She has been provided with a copy of an affidavit of Ms Saverina Cardamone, a former patient, and responded to its contents.
•
Since her last affidavit, she has been unfit for employment and currently receives the disability support pension;
•
She continues to see Ms Melissa Hayes, chiropractor, on a fortnightly basis. She pays for this treatment herself. She also attended Dr Drnda, neurosurgeon, again in early 2010;
•
She continues to experience disabling pain and takes a significant amount of pain medication. Her injuries restrict her physically and she does not believe she would be able to assist the patients;
•
She tries to perform manual tasks around the house such as dishwashing, laundry and basic cleaning. She avoids vacuuming as it causes pain. She tries to do activities like shopping and some gardening, but she has to be careful to avoid lifting heavy items. She continues to have trouble sleeping and wakes regularly throughout the night. She now takes Valium to help her sleep and Tramal also assists;
•
She continues to have difficulty maintaining relationships and has become short-tempered and irritable since her injury. This has resulted in the breakdown of her relationship;
•
She has attempted to find alternative employment. In 2007, she wanted to start a tanning business but her injuries prevented her.
19 Ms Nicole Flood, daughter of the plaintiff, deposed on 25 July 2010 that:
• She was born on 19 August 1984 and is the daughter of the plaintiff. •
Her mother’s injuries severely restrict her activities and she is in pain, particularly when doing household activities like cooking and cleaning and she cannot socialise as much. Her mother takes quite a lot of medication, which affects her lifestyle and makes her more drowsy. Her mother is afraid to drive because of the medication she takes. Her mother has become depressed as a consequence of the restrictions.
The Plaintiff’s Evidence in Cross-examination
20 The plaintiff was cross-examined and gave the following pertinent evidence:
• She is currently taking Tramal, Valium and Voltaren. •
After the first injury in September 2003, she thought she had months off. She returned to work in March 2004.
•
The second injury occurred on 24 March 2004. She thought she was unfit for work for approximately three weeks, and was given Panadeine Forte and chiropractic treatment.
•
She returned to work, which was supposed to be light duties, but there was none. She thought she returned to less than a 38-hour week but went back into full-time work.
•
Between August 2004 and October 2006, she did not attend her general practitioner as she was having chiropractic treatment at that time.
•
She said her neck has always been sore since she hurt it. She said it might get a little better but when she did anything the pain returned.
•
In July 2005, she was asked whether her neck and back were improving. She said at times it was good but most of the time it got worse again. She said whilst she went to the chiropractor it was good. She said that she did not attend the chiropractor between November 2005 and May 2006. She said that was probably because she was having a good period but she was always taking painkillers and being careful with what she did.
•
She said in June 2006, her general health was good, other than she was seeking chiropractic treatment and she had to work.
•
She said she was working nightshifts and she did that because there was no heavy lifting. That was in 2006.
•
She agreed she could do the work but only with the chiropractic treatment she was receiving. She said the WorkCover doctor told her it was best to stay moving and keep working so she believed she had to stay at work.
• She said she tried to return to voluntary work. •
She said her low-back has improved. She agreed that the majority of the treatment in recent years has been for the neck and the pain keeps going into her shoulder and arm.
•
Throughout the period she has been taking Panadol, Voltaren or Nurofen.
21 In re-examination, the plaintiff said between 2003 to 2006, she was taking medication (Panadol and Voltaren) on a daily basis for her neck and shoulder. She said that the neck and shoulder pain never went away. She said she had to work between 2003 to 2007 to support her family and herself. She was single.
Investigations
22 On 11 November 2003, a CT scan of the cervical spine was performed. Dr C O’Donnell said the conclusion was:
“Apparent right C4-5 disc protrusion. I note that this is on the opposite side of the patient’s left sided symptoms. Unfortunately plain CT of the cervical spine is relatively poor at delineating causes of radiculopathy and myelopathy. If there is ongoing clinical concern then I would strongly recommend the MRI of the cervical spine.”
23 On 20 September 2006, Dr Peter Zeiner, radiologist, reported on x-rays of the cervical spine, that:
“Small anterior as well as a posterior marginal osteophytes are involving mid and lower cervical vertebrae. This is associated with narrowing of the C4-5 and C5-6 discs. The neural foramina as well as facet joints are normal.”
24 In relation to the left shoulder, Dr Zeiner said:
“There is evidence of slight irregularity and sclerosis involving the lateral end of the clavicle as well as cystic erosion within the acromion, indicating degenerative changes within the acromioclavicular joint.”
25 On the same day, Mr Zeiner reported:
“An ultrasound of the left shoulder showed a normal study. A CT scan of the cervical spine showed left posterior-lateral prolapse of the C5-6 disc and left lateral prolapse of the C6-7 disc and are possibly causing compression of the exiting nerve roots on the same side. Clinical correlation is necessary.”
The Plaintiff’s Medical Evidence
26 Dr Garry McInerney, general practitioner, said the plaintiff had been a patient of the practice for ten years and had been seen by a number of the doctors. He relied on the medical records of the practice. He said the plaintiff complained of a neck injury at work as a personal carer in September 2003 when she developed right-sided neck and upper back pain related to an awkward posture putting a patient to bed. She said she received treatment by a chiropractor and took Panadeine Forte. However, her neck pain and stiffness persisted. A CT scan of the cervical spine in November 2003 reported a right-sided disc protrusion which was thought not to be relevant as the plaintiff’s neck symptoms were more prominent on the left side. She was referred to Mr Drnda.
27 In March 2004, the plaintiff reported acute lumbar pain after pushing a heavy woman in a wheelchair. Dr McInerney said the notes recorded restriction of lumbar spine movement.
28 In cross examination Dr McInerney said when he commenced treating the plaintiff in August 2004 he recorded “Both neck and lumbar pain are improving. Continues to work as personal carer but still noted neck pain and stiffness”. He said the plaintiff stated she was coping with work. A return to normal duties was suggested but she was made aware of work routines which might exacerbate her condition.
29 In cross examination Dr McInerney said the notes of Dr Ghelani recorded on 19 November 2005 “Her problem now on left”. He said between August 2004 until October 2006 and between October 2006 and March 2007 the plaintiff had not sought treatment for her neck or back pain.
30 He said, in March 2007, the plaintiff’s lumbar spine movement was mildly restricted and she was tender in the lumbar region. He prescribed Voltaren and Panadeine Forte. Her range of movement was 75 per cent of what he would have expected. Her straight leg raising was reduced. In cross examination he said in April 2007 the plaintiff complained of an exacerbation of a low neck ache over eight days. He agreed he was seeing the plaintiff on a monthly basis until June 2008. He considered she had had an exacerbation of her pre-existing condition and recommended ongoing chiropractic therapy as well as oral Paracetamol and anti-inflammatory medication, Mobic.
31 Dr McInerney said the plaintiff’s symptoms in her neck and lumbar region are clearly linked to her injuries as described. He considered that she should avoid long-term heavy lifting, repeated bending or difficult postures, which are virtually impossible in the personal carer field. He said she needs chiropractic treatment. She should re-train in a less physically stressful vocation.
32 In Re-examination Dr McInerney agreed that he saw the plaintiff principally in relation to the lumbar spine. He agreed that there were a couple of years when the plaintiff did not complain about her neck pain. He agreed he provided medical certificates where he said she was unable to work at all.
33 In November 2007, Dr Melissa Hayes, chiropractor, said that she had been treating the plaintiff since September 2003 in relation to pain on the right side of her neck, into her shoulder. She was also experiencing associated pain in the suboccipital region. Examination and x-rays revealed a C7 subluxation and biomechanical dysfunction at T6. It was during this period that Dr Hayes started treating the plaintiff’s low-back. Dr Hayes said that the chiropractic care was successful in easing the plaintiff’s pain and maintaining her so that she could perform all duties expected of her at work.
34 By October 2004, the plaintiff was receiving treatment at six-weekly intervals.
35 In June 2005, the plaintiff presented with a re-aggravation of her neck pain on the right side. Dr Hayes said that the plaintiff had a pattern of her work being a cause or exacerbater of her lower back, neck and shoulder symptoms. The type of work that the plaintiff described – that is, pushing wheelchairs, toileting patients, manually moving patients – were all activities that could trigger these problems. It was her view that the plaintiff should not perform heavy lifting.
36 She noted that in October 2007 when the plaintiff had undertaken voluntary shop work, she found the repetitive hanging of clothes to be aggravating her shoulder and neck.
37 In March 2011, Dr Hayes said that the plaintiff attended in April 2008 complaining of neck discomfort and low-back pain. In 2008 and 2009, her visits were for neck pain with reduced ranges of movement in flexion and bilateral lateral flexion. She received treatment in July and December 2010 for acute low-back pain as well as care for the cervical and thoracic spine.
38 In January 2011, Dr Hayes said that the plaintiff’s low-back was stable. It was the reoccurring neck and thoracic issues for which she was seeking relief.
39 Dr Hayes was cross-examined. In re-examination, she referred to her notes from 28 June 2005 and said she was giving treatment for the cervical spine which continued on 5 July 2005, 16 September 2005, 11 November 2005, 17 May 2006, 21 June 2006, 31 July 2006 and 7 August 2006. She agreed that in her report of October 2007, when she spoke about the plaintiff’s chronic pain, she would have been referring to the neck and shoulder area. She agreed that it had continued to be a feature since 2007. She said the initial injury of September 2003 would have created damage to the disc fibres that would weaken the structure and in patients like the plaintiff, where there has been an injury to the disc, you expect to see recurring patterns in the areas due to the weakness in the fibres.
40 Mr Armin Drnda, neurosurgeon, provided reports in January 2009 and February 2010. He saw the plaintiff at the request of her general practitioner in December 2003 in respect to the neck pain caused by the injury at work in September 2003. The plaintiff also complained of pain in her back due to work-related injury. On examination, the plaintiff had minor decrease in range of movement of her neck and neurological findings in both the upper and lower limbs which were normal. A CT scan showed moderate sized C4-5 disc prolapse to the right, probably initially causing compression of nerve root at C5. In January 2009, the plaintiff said she had had more or less constant neck pain with some flare-ups. She complained that when keeping her arms outstretched, especially when driving, she suffered diffused aches. She told Mr Drnda of the injury at work in 2004 when she injured her low back. She said she was receiving chiropractic treatment which kept her condition relatively stable and enabled her to continue working.
41 It was Mr Drnda’s view that the plaintiff’s prognosis was poor in the sense of possible recovery for work. He thought she was likely to remain with chronic myofascial pain in the neck and lower back. He said she was not capable of returning to her pre-injury employment and he questioned how she could have returned to work in 2004 due to the nature of her job, which was very strenuous.
42 In February 2010, Mr Drnda found minor decrease in the range of movement of the neck. He said the plaintiff had mild restriction in all directions in the lumbar spine. He said the left shoulder abduction was limited by pain and was not possible beyond 90 degrees and other movements in the left shoulder were mildly restricted. He reviewed the plaintiff’s x-rays. He said the nature of the plaintiff’s work caused her to have accelerated degeneration in her cervical and lumbar spine with consecutive development of pain in these regions. He accepted that work was a significant contributing factor in the development of accelerated degenerative changes in her cervical and lumbar spine and left shoulder. He said she could not return to her pre-injury duties as they would trigger more pain. He said she could perform duties that exchanged sitting and walking, but duties must not include any physical strain. He said her social and domestic life was affected by her condition: her social life to a minor degree and domestic life to a moderate degree. She was restricted in performing certain household duties that would require bending, twisting, lifting and carrying heavy objects.
43 Dr Varney, general practitioner, had been treating the plaintiff since June 2008. He provided reports in January and February 2009 and August and November 2010. He said the plaintiff was able to work until early 2007 when she incurred another low-back injury on 10 March 2007. On examination of the plaintiff’s neck, she had mid cervical facet and muscular tenderness and a reduced range of cervical movement down to 50 per cent of normal. The plaintiff was prescribed Tramil, Valium and Voltaren for symptom relief. He said the plaintiff had injured her neck in the course of her employment and most likely sustained an injury to the cervical disc or discs with an acceleration of the aging process. He said she would require ongoing treatment for that and modification of her lifestyle, domestic and employment activities.
44 He said the plaintiff is unlikely to ever work again as a personal care attendant, because the work is heavy and her lower back injury also precludes employment in that area. He thought in the future she would be capable of a trial return to work in clerical, administrative, sales or light assembly work. He recommended nine hours per week and if tolerated, they could be increased to fifteen hours per week: three hours, five days per week.
45 In November 2010, Dr Varney said the plaintiff was suffering from pain in the left shoulder with evidence of mild tendon degeneration and bursal impingement which he considered was referred pain from the cervical spine. Treatment of steroid injection did not assist. The problem in her lower back and mid spine was reasonably stable. He said she gained relief from Tramil medication which he considered will continue for the foreseeable future. He said any return to work would be on a trial basis and would require input from a rehabilitation specialist.
46 On 9 July 2007, Justin Moar, physiotherapist, of Spinal Management Clinics of Victoria, saw the plaintiff at the request of the defendant’s insurer. He reported that the plaintiff injured her neck in 2003 while working as a personal care attendant. She recalled experiencing sudden neck pain when she was transferring a client to the bed. She required time off work and described recurrent aggravation of her neck pain since that time, requiring periodic chiropractic treatments. Shortly after returning to work from her neck injury, she injured her lower back pushing a wheelchair with a heavy client. She had approximately one month off work and commenced chiropractic treatment. She reported that at Christmas of 2006 she strained her lower back transferring a client in a manual hoist. She recommenced chiropractic treatment but continued to suffer recurrent aggravation of her back pain, leading her to cease work in March 2007.
47 It was Mr Moar’s view that the plaintiff was suffering from mild to moderately severe low lumbar disc pathology with reduced control over her lumbar stabilising contributing to her pattern of recurrent flaring of her low-back. He said it was difficult to provide definitive diagnosis in regards to her neck pain. He thought the reduced control of her postural muscles was contributing to her neck pain. He accepted that her neck injury was work-related and her work contributed to subsequent aggravations of her neck pain which he described as chronic/recurrent. He did not consider the plaintiff had a capacity to return to her pre-injury duties as a personal care attendant.
48 Mr Moar said the plaintiff was suitable for work, working four to five hours a day, four to five days a week with restrictions of no lifting greater than 7.5 kilograms, no sitting for longer than 30 minutes, no standing for greater than 30 minutes, no repetitive bending or stooping, no reaching above shoulder height and no sustained period of cervical flexion. He recommended that to improve her condition she should continue with regular exercise, focussing on improving the control and strength of the spinal supporting muscles of her cervical, thoracic and lumbar spine. He thought she would benefit from physiotherapy.
49 In February 2009, Dr Chris Baker, specialist in occupational medicine, saw the plaintiff at the request of the defendants’ insurer. It was his view that the plaintiff had suffered a cervical disc injury to the C4-5 level resulting in a right- sided disc protrusion. He thought it was symptomatic degenerative changes in the acromioclavicular joint. He accepted the injury to the neck was work- related.
50 In July 2010, the plaintiff was seen by Dr Alex Stockman, rheumatologist, at the request of the plaintiff’s solicitors. It was his view the plaintiff was suffering a chronic neck pain which could be giving her pain in the left shoulder. It was his view the condition was consistent with the CT scan findings of multiple disc prolapse/degeneration. He said she was suffering from lumbar spondylosis with possible radiation of pain down the legs and pain in the left shoulder which would be consistent with recent ultrasound findings of bursitis and tendonitis. He thought her condition had stabilised. He did not expect any significant change in the foreseeable future. He thought her injuries were causing her current symptoms.
51 He did not think the plaintiff could return to her previous work of a personal care assistant unless her duties were light and in a supervisory capacity. He noted that she continues with analgesia and anti-inflammatory medications and he said she needed chiropractic treatment on a regular basis. He thought she could do light duty work for up to fifteen hours per week by reason of the injuries to her spine alone.
52 In August 2010, the plaintiff was sent by Dr Peter Blombery, consultant physician, at the request of her solicitor. He accepted her injuries were work- related. In respect to the injuries to her neck and lumbar spine, it was his opinion that the work she was doing in the course of her employment resulted in previously asymptomatic degenerative changes becoming symptomatic. He said her prognosis for recovery was poor. He noted that her injuries had been present for many years and had not changed significantly. He thought the only treatment available to her was supportive treatment. He thought she had no capacity to perform her previous employment but that she may be able to perform light duties which do not involve any lifting or heavy and repetitive use of the arms, neck and back. He agreed with Dr Varney that she had a maximum capacity of 15 hours per week performing light duties.
53 In August 2010, the plaintiff was examined by Mr Kenneth Myers, surgeon, at the request of her solicitors. He said she suffered injuries to the left shoulder, neck, low-back and left foot. He said the injuries would restrict the plaintiff’s capacity for work and social and domestic lifestyle. He accepted that her present disability resulted from her injuries sustained during the course of her employment, particularly with Select Services.
The Defendants’ Medical Evidence
54 The plaintiff was medically examined by Mr Clive Jones, orthopaedic surgeon, at the request of the defendants’ solicitors in May 2009 and June 2010. She provided an accurate history of her injuries, treatment and employment.
55 In May 2009 Mr Jones examined the plaintiff and reported in July 2009 that the plaintiff had chronic pain in the neck and lower back. He thought the underlying cause was age related degenerative change in the spine. He was aware she worked until 2007 he thought her condition had been complicated by the emergence of a pain disorder and associated depression. He understood the plaintiff first developed symptoms in 2003. He accepted that her neck and back were injured during her employment with the defendant and employment with the defendant was a significant contributing factor. He thought her physical loss was minor. He said allowing that she had a somewhat reduced employment capacity, he did not believe that she will ever work again.
56 From the physical point of view, Mr Jones thought the plaintiff could probably undertake factory or light process work or something similar with lifting restrictions to 5 kilograms.
57 When Mr Jones saw the plaintiff in June 2010, she was taking Tramil for pain and Voltaren as an anti-inflammatory medication. She was having occasional visits to her chiropractor when she was able to afford to do so. She said that her neck and back pain were about equal, but the symptoms do tend to fluctuate. She was experiencing stiffness in the neck and pain in the left shoulder and elbow, and described a feeling of ongoing pressure in the back and pain in the left buttock. She said she was not capable of independent existence and remains living with a friend who does all household work. She drives occasionally and described a restricted social life.
58 On examination, movement of the cervical spine remained at about 50 per cent of the expected range and she was unable to raise her left arm above shoulder level or forward flexing past 90 degrees as the arm felt too heavy. She did have a full range of external rotation in her left shoulder.
59 Mr Jones said that most of the plaintiff’s work was performed under Select Services. He described the employment with Select Services as an insignificant or negligible factor and the plaintiff’s loss of function as minor. He considered her subsequent employment is a doubtful significant factor. He accepted that the neck and back injury occurred during the period 2001 and 2006 and the injury with AQA Victoria Ltd aggravated both her neck and back condition. He said the plaintiff “greatly exaggerated pain levels affecting her neck, lower back, left shoulder, upper arm and her foot”.
60 In May 2007, Mr Nigel Mitchell, physiotherapist, provided a report to the defendants’ insurer. The plaintiff provided a history of having suffered an injury in September 2003 when she was required to hoist a heavy lady onto her bed and twisted as she did so, injuring her neck and shoulders. She returned to work in December 2003 on light duties and reduced hours. Approximately three weeks later she injured her low-back whilst pushing a patient in a wheelchair. She continued to work until March 2007, when her back condition had deteriorated with the work she was performing. Her doctor certified her unfit for work and she has not returned to work since.
61 Mr Mitchell accepted that the physical nature of the plaintiff’s work as a personal care attendant was the main contributing factor to her original and ongoing neck and back problems. He said her current condition was an exacerbation of the injury she sustained in late 2003. He did not think she had a current work capacity but would be fit for work duties within one or two months but may not return to her pre-injury work as a personal care attendant.
62 In October 2003, Dr Hayes considered the plaintiff was vulnerable to re- aggravation of the right-sided neck and shoulder and that it was advisable that lifting and pushing patients was kept to a minimum.
63 In 2003, Mr Michael Troy, surgeon, examined the plaintiff at the request of the defendants’ insurer. He diagnosed soft-tissue strain pattern to the supporting muscles of the cervical spine and thoracic spine. He accepted her employment was a significant contributing factor and that she had suffered incapacity for employment. She had made attempts to return to work in October 2003 and returned to restricted duties in December 2003. He thought she did not have a capacity for pre-injury employment but a capacity for suitable employment. In 2003, he did not consider she had a permanent impairment.
Video Surveillance
64 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index to the defendants’ court book. If there was film taken of the plaintiff, I can only conclude that it did not assist the defendants as it was not shown.
Credit of the Plaintiff
65 The plaintiff did not answer questions precisely and in fact struggled to answer questions and became frustrated. On occasions she was vague. I accept that this was due to the fact that she was in an environment in which she was most uncomfortable.
66 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw. I accept that there were some inconsistencies with the detailed history and the fact that the injury relates back to 2003. I place no significance on the inconsistencies which were of a relatively minor nature.
67 The plaintiff made concessions which were unfavourable to her. For example, she said she suffered an exacerbation of injury to the lower back in her work with AQA, which lasted about three months, and the back returned to its previous level and was not really a problem. As a result, proceedings against AQA were dismissed.
68 The plaintiff’s evidence of the neck injury and, to a lesser extent, the back injury from September 2003, and again in March 2004, was not challenged. She explained her continuation of work by saying she had to work, she was the sole provider for her family. She said she returned to work with the encouragement of the WorkCover doctor. She hoped that her condition would improve. She said she did not appreciate the seriousness of her injury. I accept that she is a witness of truth. Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
69 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of her employment with the defendant. All of the medical witnesses accepted the injury was work-related. I accept that the major cause of the neck injury is the work that she performed with the defendant. I refer to the view expressed by Mr Clive Jones, medical specialist retained by the defendants.
70 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[9]
[9] S.134AB(38)(h)
71 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[10]
[10] (supra) at paragraph [70]
72 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 73 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[11] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[12] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[13]
[11] S.134AB(38)(b) and (c)
[12] S.134AB(38)(e), (f) and (g)
[13] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
74 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
75 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
76 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
77 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[14] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[14] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
78 The plaintiff has sustained an injury to her spine, being the neck and back. The consequences of that impairment are that she currently takes medication of Tramal twice a day, Valium once a day and Voltaren as needed, which is stronger now than the medication she took in 2003. She attends her general practitioner regularly. The medical history is consistent with the evidence of two of her treaters: Dr Hayes and Mr Drnda. Dr Hayes has seen her since 2003 and says that, because of her condition, in particular the neck, she should avoid certain activities and certain types of work. Dr Hayes said the pain in the neck and shoulders was “chronic”, and has been a repetitive issue. I accept, when one considers Dr Hayes’ clinical notes, the major reason for the plaintiff’s attendance at the chiropractor was for the neck and shoulders. Dr Hayes noted that when the plaintiff was off work and avoiding heavy activities, there was some stabilisation of her symptoms.
79 Mr Drnda considered the plaintiff’s prognosis was poor, in the sense of possible recovery for work, given her work was strenuous and had the potential to aggravate her condition.
80 All of the other medical witnesses who expressed a view in relation to employment said that the plaintiff could not return to pre-injury employment. A number of the doctors (Mr Drnda, Dr McInerney, Dr Varney, Mr Stockman, Mr Blombery and Mr Jones) thought she could perform light work. Of those doctors, Mr Stockman said she could work up to fifteen hours in a supervisory role. Dr Varney said, in August 2010, in due course she would be capable of return to work in clerical, administrative, sales or light assembly work. Initially for nine hours per week, and if tolerated, increasing to fifteen hours per week.
81 Before the injury the plaintiff had been in full time employment and continued to work until 2007, working because she had to support herself and her children, she did not appreciate the seriousness of her injury and she was encouraged to continue at work by Workcover, in the belief that she would recover. She said she worked at night as the work was less strenuous.
82 The plaintiff is aged 54 years, she has lost the ability to continue in her chosen profession for which she trained. Further, the evidence is that she can no longer work in a physical job. She may have some light work capacity, but no more than 15 hours per week. This represents a significant loss to the plaintiff both with respect to her enjoyment of life and self esteem.
83 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
84 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.
The Statutory Test – Loss of Earning Capacity
85 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 86 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and (ii) “after injury earnings”. 87 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
88 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
89 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
90 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[15]
[15] (supra) at paragraph [70]
91 I am therefore required to determine a “without injury” earnings figure based on a six-year period specified in s.134AB(38)(f).
92 The plaintiff’s current earnings from personal exertion are nil.
Summary of the Plaintiff’s Earnings
Year Gross Amount Tax Net 2001 $18,802.00 $1,752.00 $17,050.00 2002 $26,440.00 $4,631.00 $21,809.00 2003 $30,452.00 $5,713.00 $24,739.00 2004 $22,242.00 $3,204.00 $19,038.00 2005 $27,061.00 $4,644.00 $22,417.00 2006 $28,097.00 $5,068.00 $23,029.00 2007 $35,548.00 $7,670.00 $36,360.00
93 The evidence is that at best, the plaintiff can only perform light duties with restrictions. The plaintiff attempted to return to work doing voluntary work at St Vincent de Paul. She lasted a very short time because of pain in the neck and shoulders. The plaintiff was working long hours in her chosen career as a carer. Accepting that she will only perform at the very most fifteen hours on light duties, and given her presentation in court, I think the chances of her obtaining light work that she could perform is most unlikely. Her previous work experience was as a cleaner, which is a physical job and one for which she is no longer suitable. Accordingly, I am satisfied that she would satisfy the arithmetical formula.
94 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act.
95 There was no evidence that retraining would assist the plaintiff. None of the medical reports suggested that further rehabilitation will assist the plaintiff. Accordingly, I do not consider that retraining and rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40% or more. I am satisfied that the requirements of s134AB(g) of the Act have been met.
96 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
97 The above position is reached purely by reference to the plaintiff’s physical condition and in respect to the spine. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
98 Accordingly, I am satisfied that the plaintiff has established that she has the requirements of paragraph (f).
99 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.
Findings
100 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendants seeking damages for pain and suffering and loss of earning capacity as a result of her employment with the first defendant.
101 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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