Haberfield v South West Healthcare
[2012] VCC 1030
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03795
| BRIAN FRANCIS HABERFIELD | Plaintiff |
| v | |
| SOUTH WEST HEALTHCARE | First Defendant |
| and | |
| CGU WORKERS’ COMPENSATION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 30 and 31 July and 1 August 2012 | |
DATE OF JUDGMENT: | 24 August 2012 | |
CASE MAY BE CITED AS: | Haberfield v South West Healthcare & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1030 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering consequences of low-back injury – aggravation of previous injury – whether the degree of aggravation constitutes a “serious injury”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT – Leave granted for pain and suffering damages in respect of injury sustained by the plaintiff in the course of his employment with the first defendant on or about 20 March 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendants | Mr P Elliott SC with Mr J Batten | Lander & Rogers |
HIS HONOUR:
1 Brian Haberfield alleges that he suffered injuries to his low back in the course of his employment with the first defendant on or about 20 March 2005. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of that injury.
2 His 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 him 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 a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of his lower back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] – [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Haberfield of any impairment or loss of function of his low back with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The 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 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.[4]
[4]Section 134AB(38)(c)
8 Counsel for Mr Haberfield submits that the consequences of his low-back injury can fairly be described as being more than significant or marked and as being at least very considerable. Counsel for the defendants denies this is so. It is this issue that falls to be determined.
Background
9 Mr Haberfield is fifty years old. He is currently employed as a Division 3 Nurse.
10 For some time prior to 1998, Mr Haberfield and his wife lived at Derby in Western Australia. He worked as a Division I Nurse. In 1998, he spontaneously suffered severe low-back pain. It came on without particular trauma whilst he was walking. He put up with the pain as best he could and continued his work. He underwent minimal treatment and had no CT scan or MRI scan at that time. He reduced his hours of work and was employed on a part-time basis. At that time, he was also completing a degree in nursing at the Northern Territory University by way of correspondence.
11 Mr Haberfield returned to live in Warrnambool in 2001. He was still suffering from low-back pain and consulted a medical practitioner, who arranged a CT scan. This revealed a right-sided disc prolapse at the L5-S1 level. He was subsequently referred to a neurosurgeon, Mr Peter Dohrmann, and underwent a discectomy in August 2001.
12 In October 2001, Mr Dohrmann reviewed Mr Haberfield, noting that he had no pain at all, was taking no analgesics and had no problems.[5] In his affidavit sworn in March 2011, Mr Haberfield states that that surgical procedure produced an excellent result, although he was never completely free of back pain. Thereafter, he received little treatment apart from some analgesic medication.[6]
[5]Plaintiff’s Court Book (“PCB”) 14
[6]PCB 3
13 In mid 2004, Mr Haberfield experienced increased low-back pain and consulted his general practitioner at the Cambourne Clinic in Warrnambool. He had travelled to Mt Baw Baw about three weeks earlier and had afterwards suffered stiffness in his low back. About three weeks later, he sneezed and developed right buttock and mid-thigh pain. He underwent a CT scan of his lumbosacral spine in August 2004. It was reported as showing a significant central disc herniation at L5-S1 without nerve root impingement.[7] He was prescribed Panadeine Forte and Celebrex.
[7]Exhibit 3
14 At that time, he took no time off work but reduced his hours of work from about 38 to 28 hours a week. Effectively, he worked four days per week instead of five.
15 In September 2004, Mr Haberfield was reviewed by to Mr Dohrmann. A further MRI scan was arranged. This revealed a central and right-sided disc protrusion at L5-S1 with compression of the S1 nerve root.[8] At that time, Mr Dohrmann took a history of some improvement in Mr Haberfield’s condition prior to the review and following the MRI scan and did not recommend further surgery. At that time, he anticipated gradual improvement. Despite attendances upon his general practitioner and Mr Dohrmann, Mr Haberfield took no time off work at this time.
[8]PCB 15
16 Throughout 2004, Mr Haberfield had been working with the first defendant as an intern, completing the practical side of his nursing degree.
17 Mr Haberfield continued working through the latter part of 2004 and into 2005. The general practitioner’s clinical notes record that his low-back pain was much improved by September 2004 but that he was given a letter for work purposes directing that he avoid heavy lifting. Again, in October 2004, the notes indicate that his back was much better. He did not attend on his general practitioner between October 2004 and March 2005.[9]
[9]Exhibit 2
18 On 18 March 2005, Mr Haberfield commenced employment with the first defendant as a qualified Division I Nurse. Up until then, he had been working with the first defendant but as an intern performing, as I understand it, similar duties.
19 On 20 March 2005, in the course of his duties, Mr Haberfield was pushing a bed on wheels with the help of an orderly. The bed was heavy and he was at the rear of the bed doing much of the pushing. He was involved in what he describes as a turning/twisting action and suffered sudden and severe back pain. He went straight to the Accident and Emergency Department of the Warrnambool Hospital, where he was given painkillers.
20 Shortly afterwards, he was referred back to see Mr Dohrmann. A further MRI scan was arranged, again showing a right-sided lumbosacral disc prolapse.
21 On 26 July 2005, Mr Haberfield underwent further surgery, a revision right L5‑S1 microdiscectomy and nerve root decompression. Mr Dohrmann describes the surgery as being technically uneventful, and describes Mr Haberfield as making a satisfactory recovery before discharge several days later.
22 In September 2005, Mr Dohrmann reviewed Mr Haberfield. He recorded a history from Mr Haberfield that he was free of pain and was walking several kilometres each day without difficulty.[10] At that stage, he had yet to return to work but was intending to do so. Mr Dohrmann discharged him to the care of his general practitioner. It does not appear that Mr Dohrmann has seen Mr Haberfield since September 2005, a period of more than seven years.
[10]PCB 15
23 In early 2006, Mr Haberfield returned to work with the first defendant, initially working on restricted duties and reduced hours, gradually increasing his hours until he was working full-time, although he avoided heavy work. He continued working 38 hours per week performing general nursing duties until 27 April 2007, when he resigned. His resignation did not relate to his low-back condition. Rather, he experienced difficulties with one or more co-workers and felt that he was not given the support by superiors that he should have been given.[11]
[11]Defendant’s Court Book (“DCB”) 73 to 79
24 Shortly after, in June 2007, he commenced working with Lyndoch Warrnambool Inc (“Lyndoch”), an aged-care facility. He applied for and obtained a position as a Division 1, Grade 3 Nurse. He has continued in that employment up to the present. His duties there are somewhat different to those that he performed whilst employed by the first defendant. It is a largely supervisory role. He supervises up to twenty members of staff, does book work and consults in relation to patient care. His position is described as an Associate Nurse Unit Manager. As a Division 1, Grade 3 Nurse, he has greater responsibility, and is paid more, than when he was employed by the first defendant.
25 Since commencing with Lyndoch, Mr Haberfield has continued to attend from time to time on various doctors at the Cambourne Clinic in Warrnambool.
26 The clinical notes of that practice disclose that histories were taken on the occasion of such attendances, which I shall summarise. The following is merely a summary of those notes from early 2006, when Mr Haberfield returned to work:
· 9 January 2006 – “Back the best it’s been for some time. Working 5 hours per day, 4 days per week”
· 6 February 2006 – “Well. Managing work in recovery. Increase to 6 hours per day, 4 days per week”
· 6 March 2006 – “Well. Back going OK”
· 24 March 2006 – “Back to full-time normal duties but avoid heavy lifting, bending and twisting. Panadeine Forte and Valium prescribed”
· 22 May 2006 – “Back not too bad”
· August 2006 – “Back pain. W/C certificate re no heavy lifting or twisting”
· 3 November 2006 – “Recent holiday in Cairns. Back been good”
· 25 June 2007 – “Changed jobs, now at Lyndoch. Back going OK. Anxiety much relieved since stopping work at SWHC”
· 29 April 2008 – “Low-back pain – been moving firewood – Panadeine Forte and Valium prescribed”
· 13 September 2008 – “Prescribed Valium for back pain – heading on holiday in the near future”
· 5 February 2009 – “Crook back – prescribed Valium and Panadeine Forte”
· 1 October 2009 – “Prescribed analgesia – going on fishing trip to Cairns in the next week which will be tough on the back”
· 11 April 2010 – “Panadeine Forte prescribed”
· 3 November 2011 – “Panadeine Forte prescribed”
· 5 July 2012 – “Back pain – acute low-back pain going down stairs at work carrying a tub of medication – nil sciatic symptoms – on examination, tender, mainly lower lumbar facets and paraspinal muscular spasm – straight leg raising 0 – 45 degrees both sides – Endone and Naprosyn prescribed”
· 19 July 2012 – “Lower back nearly back to normal – minimal pain – keen to return to work next week back on normal duties”
· 24 July 2012 – “Fit to return to work – back much better.”
Diagnosis of Injury
27 The medical evidence concerning the nature of the March 2005 injury was largely non-contentious.
28 The overwhelming medical evidence is that on 20 March 2005, whilst pushing a bed in the course of his employment, Mr Haberfield suffered a further prolapse at the lumbosacral level which required the further surgery referred to above.[12]
[12]Mr Michael Dooley at Defendants’ Court Book (“DCB”) 40; Mr Paul Kierce at DCB 28; Mr Peter Dohrmann at PCB 15; Mr John O’Brien at PCB 21; Mr Stanley Schofield at PCB 25.3 and 25.5
29 I am satisfied that, notwithstanding that Mr Haberfield had suffered an earlier prolapse at the lumbosacral level, and had suffered symptoms at the same level confirmed by an MRI scan of November 2004, the March 2005 work incident resulted in a further prolapse of the lumbosacral disc, causing substantial aggravation of symptoms of low-back pain and sciatica, necessitating further surgery.
30 The issue in this case is not whether Mr Haberfield suffered a further prolapse in the course of his employment in March 2005, but what are the consequences of that additional injury.
Consequences of Injury
31 The parties were in agreement that I should view that injury as an aggravation of a pre-existing injury to his low back, at the lumbo-sacral level. In assessing the consequences of that injury, I am required to make an assessment of Mr Haberfield’s condition both before and after the injury and in particular, assess the consequences of the injury for him at the present time. In a case where there is a prior injury, I must assess the consequences that flow from the injury in question rather than merely look at his current position when, in some cases, some symptoms and consequences may relate to earlier injuries.[13]
[13] Petkovski v Galletti [1994] 1 VR 436
32 I am required to consider Mr Haberfield’s symptoms and consequences of his earlier injuries and make a comparison between them and the symptoms and consequences of his March 2005 injury at the present time. Mr Haberfield is required to establish that the additional consequences of that injury constitute a “serious injury” as defined.
33 I have come to the conclusion that Mr Haberfield has established that the additional consequences are sufficient so as to constitute a “serious injury” in this case.
34 I appreciate that Mr Haberfield’s low back did provide problems for him prior to March 2005. In particular, I note that in mid 2004, he suffered pain in the low back, and sciatica, in the weeks following a visit to Mt Baw Baw, which was sufficient for him to be referred back to Mr Dohrmann and for an additional MRI scan to be arranged. Nevertheless, it was Mr Dohrmann’s view in November 2004 that surgery was not required and that Mr Haberfield’s symptoms were on the improve at that time.[14]
[14]PCB 15
35 Senior Counsel for the defendants submitted that it was particularly important that Mr Haberfield had returned to employment with the first defendant following his 2005 surgery, had gradually returned to full-time nursing duties, and had eventually resigned from his employment with the first defendant in April 2007 for reasons unconnected with his injury. Further, it was pointed out that he had obtained, on one view, a better job shortly after that resignation. I accept that the employment he obtained with Lyndoch was a more responsible and better paid position.
36 I had the opportunity of assessing Mr Haberfield as he gave his evidence in court. I considered him to be a straightforward witness who did not embellish or exaggerate his symptoms. I consider that he is a person who has been determined to remain in the workforce when others with similar injuries may not have been. I consider that he has been stoic concerning his injury. I do not consider that his stoicism or determination to remain in the workforce should go against him in this application.
37 Counsel for Mr Haberfield submitted that the consequences of the relevant injury had indeed been at least very considerable for him. In summary, he submitted as follows:
(a) Mr Haberfield suffers from severe pain on a regular basis. He is left with constant low-back pain. Pain regularly spreads down into his buttocks and, when bad, down both legs.
(b) In his younger days he was a keen professional piano player, performing in various hotels and restaurants. Although he had not worked professionally since the mid 1980s, it was always his intention to return to the piano. For some years he had lived in the Kimberley area where a return to that activity was not practicable. On his return to the Warrnambool area, he soon had young children to deal with, and again, a return to regular piano playing was not considered. However, his oldest child, now aged eleven, showed interest in the piano from an early age and I accept that Mr Haberfield would have enjoyed a return to piano activities. In 2009, he had purchased a grand piano with this in mind. He stated, and I accept, that sitting for any length of time in a position appropriate to play the piano, causes him significant pain. I consider it unlikely that he would be likely to return to playing the piano, recreationally or professionally, with any regularity in the future. I consider that this is likely to be a consequence of the March 2005 injury.
(c) His capacity to sit for any length of time is far worse now than it was prior to the March 2005 injury. He has found it difficult to get through this court proceeding. He has found it difficult to sit whilst giving evidence and at times has requested to stand.
(d) Prior to March 2005, he was able to continue, virtually unrestricted, in employment in nursing. He is now greatly restricted in performing the heavier aspects of nursing.
(e) Prior to March 2005, he had no restrictions in carrying out various duties at home, including general maintenance, cleaning and vacuuming. He is now significantly restricted in such activities.
(f) Prior to March 2005, he had few, if any, sleeping issues. Since the March 2005 accident, he wakes two or three times each night because of back pain.
(g) Prior to March 2005, although he had to be careful in performing gardening activities and the like, he was able to perform these without assistance. Since March 2005, this has not been the case. He has had to engage a person to assist him with the garden. That person, Leon, was depicted in DVD video-surveillance film tendered by the defendants. Mr Haberfield stated that Leon performs most of the heavy work around the garden. He was not challenged about this. Mr Haberfield stated that his garden was in a much better condition before March 2005 than it has been since. Before March 2005, he said that he engaged himself in gardening activities for pleasure. In contrast, now he does things that have to be done. Before March 2005, he would work in the garden on average four hours per week. Since, he has hardly been involved. He does do some gardening activities but not nearly to the same extent. An example was that he took a trailer load of relatively light branches from a tree or shrub that he and Leon had pruned in September 2011. He had taken that trailer load to his brother’s farm and had there used a forklift to remove that material from the trailer. He was confident that he would have been able to do that task comfortably by hand before the relevant accident.
(h) Prior to March 2005, he had enjoyed fishing regularly with his brother and others. He did so sometimes from his brother’s boat and sometimes from the beach. During 2004, he estimated that he would have fished twice per week on average. In the last two years, that is between mid 2010 and the present time, he has fished approximately four times. Fishing in a relatively small boat at sea, inevitably involving instability, causes him back pain.
(i) Prior to March 2005, he played golf reasonably regularly. He often played on a Saturday. He played most Sundays with friends. Although he was not a particularly talented golfer, in the sense that his handicap was 32 at that time, he enjoyed the game. He has not played since March 2005 because of back pain.
(j) Mr Haberfield’s children are aged seven and eleven years at present. He would like to participate with them in their various sporting and recreational activities. Although he attends regularly to watch his eleven-year-old son play football, he does not participate in any such activities with his son. For instance, in the near future there is a scheduled father-son football game. He will not be able to participate in it. Recently, he and his wife took the children ice skating in Melbourne. He could not participate in skating activities. He was confident that he would have been able to prior to March 2005.
(k) Until March 2005 his physical relationship with his wife was good. Since, it is very difficult for him. I noted that when giving this evidence, Mr Haberfield became emotionally upset.
38 I accept that these consequences relate to the March 2005 injury.
39 The defendants tendered four DVD surveillance films depicting Mr Haberfield on various dates between September 2011 and 28 July 2012 (the latter being only a few days prior to the trial). The DVD films showed Mr Haberfield engaged in various gardening activities at his home and attending Junior Grade football matches locally in which his son was involved. In respect of the latter activity, I considered that Mr Haberfield performed little, if any, physical activity. He was seen to jog or shuffle slowly a short distance onto a football oval to attend to an injured child.
40 Gardening activities depicted on the films showed Mr Haberfield operating a chainsaw to cut thin branches from a shrub, weeding at ground level and mowing the lawn. In addition, he was seen lifting what appeared to be light and relatively small branches from the shrub onto a trailer. Although these activities, in part, demonstrated he was capable of bending and picking up things from the ground and capable of squatting for short periods of time, I do not consider that they demonstrated him performing any heavy activities or any activities that he had denied being able to perform. I consider that the films depicted relatively light gardening activities. I do not consider that the films demonstrated that he could perform such activities regularly or in employment.
41 I note that Mr Haberfield’s duties since he began work with Lyndoch in 2007 have been, in the main, supervisory duties rather than normal nursing duties which would require him to be on his feet for significant periods and which would be likely to involve some lifting and manoeuvring of patients.
42 I accept the submission of Senior Counsel for the defendants that Mr Haberfield’s back was plainly not in great condition before March 2005. Although he was able to hold down employment, he had had to be careful with his back for some years before 2005.
43 Nevertheless, taking into account all of the evidence, and in particular, accepting Mr Haberfield’s evidence that his symptoms of pain and limitations in connection with his recreational activities are much worse than before March 2005, I have come to the conclusion that the consequences for him of the March 2005 injury are more than “significant or marked” and can fairly be described as “at least very considerable”.
44 Accordingly, I am satisfied that Mr Haberfield has sustained a “serious injury” as that term is defined in the Act.
Conclusion
45 Accordingly, there will be leave to Mr Haberfield to bring proceedings for recovery of pain and suffering damages in respect of injury sustained by him in the course of his employment with the first defendant on or about 20 March 2005.
46 I shall hear the parties in respect of costs.
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