Hammill v Form 700 Pty Ltd
[2019] VCC 785
•5 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04332
| STEVEN DAVID HAMMILL | Plaintiff |
| v | |
| FORM 700 PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2019 | |
DATE OF JUDGMENT: | 5 June 2019 | |
CASE MAY BE CITED AS: | Hammill v Form 700 Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 785 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – concession the pain and suffering consequences are “serious” – question whether loss of earning capacity consequences are “serious” – incapacity for pre-injury work – capacity for suitable employment – return to full-time suitable employment – whether capacity to maintain that employment – aggravation of the lower back injury due to a second work incident rendering the plaintiff totally incapacitated – estimation of the plaintiff’s capacity for full-time suitable employment prior to the occurrence of the second work incident
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams with Ms A Bannon | Galbally & O’Bryan |
| For the Defendant | Mr D Meyers | IDP Lawyers |
HIS HONOUR:
The proceedings
1 On 30 July 2013, the plaintiff suffered an injury to his lower back in the course of, and within the scope of, his employment with Form 700 Pty Ltd (“Form 700”). He filed an Originating Motion on 2 October 2018 claiming that the injury resulted in a permanent impairment of the function of his lower back.[1]
[1]Plaintiff’s Court Book (“PCB”) 1-3
2 The plaintiff left the employ of Form 700 and took up employment with Edgestress Pty Ltd (“Edgestress”). On 7 May 2015, he suffered further injury to his lower back in the course of, and within the scope of, his employment with Edgestress. He filed a second Originating Motion, also on 2 October 2018, claiming that the further injury resulted in a permanent impairment of the function of his lower back.[2]
[2]PCB 5-8
3 The parties informed me at the commencement of the trial that Form 700 conceded that the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back was “serious”. It denied that the loss of earning capacity consequences was “serious”. The parties also informed me at the same time that the proceeding between the plaintiff and Edgestress was part of the resolution of the Form 700 proceeding.
4 The parties informed me that what that left was whether the loss of earning capacity consequences resulting from the impairment of the function of the plaintiff’s lower back in the Form 700 proceeding was “serious”. The remaining question resulted in a significant reduction in the evidence tendered by the parties.
Form 700
5 It is unnecessary to set out much of the plaintiff’s evidence relevant to the injury he suffered in his employment with Form 700 except for the following.
6 The plaintiff was employed by Form 700 as a labourer/post tensioner. He was working on a multi-storey building in the Central Business District of Melbourne in a team of three. The plaintiff and his leading hand were attempting to raise ducting in order to place both ends of the ducting on timber supports. As he was engaged in the physical stresses of undertaking that task, he experienced sudden pain in his lower back.[3]
[3]PCB 11-12
The first Injury
7 It is also unnecessary to set out much of the medical evidence because of the concession made by Form 700 that the pain and suffering consequences of the impairment of function of the plaintiff’s lower back was “serious”.
8 After treatment by a number of medical practitioners, the plaintiff was diagnosed as suffering from systemic mastocytosis, which has contributed to the plaintiff’s pre-existing osteoporotic condition affecting his spine. The incident resulted in the plaintiff suffering a crush fracture at L5 of his lower back with left-sided radiculopathy, resulting in pain extending down into left lower limb.
Return to work
9 The narrow focus of the trial was whether the plaintiff had a residual capacity for suitable employment limited to about one third of the hours he usually worked. If that is the case, then he would easily establish the requisite degree of loss of earning capacity to be granted leave to also bring a proceeding for loss of earning capacity consequences.
10 It is necessary to trace through the plaintiff’s return to work in order to fully appreciate the basis upon which the plaintiff put his case, and Form 700’s response to it.
11 Before the incident, the plaintiff generally worked from Monday to Thursday from 7.00am to 5.20pm, and Friday and Saturday from 7.00am to 3.20pm. For the financial year ending 30 June 2012, he earned $81,027 gross, and for the following financial year, $84,562 gross.
12 The plaintiff was removed from the worksite by ambulance and was taken to St Vincent’s Hospital. He subsequently had quite a deal of medical treatment which is summarised in his first affidavit sworn 27 February 2018.[4] None of this is controversial.
[4]PCB 3-26
13 The plaintiff was incapacitated for work until mid 2014, when he commenced a structured return to work monitored by the relevant claim’s agent and the plaintiff’s treating medical practitioners. This was achieved through a combination of return to work plans and medical certificates which I will now refer to.
14 The first return to work plan is dated 3 October 2013.[5] It noted that the plaintiff was not fit for any duties at that stage based upon a certificate of capacity provided by a Dr Taylor, general practitioner. The subsequent return to work plans dated 19 November 2013, 3 December 2013 and 12 December 2013 also noted that the plaintiff was not fit for any duties, also based upon certificates of incapacity provided by Dr Taylor.
[5]PCB 98-99
15 A temporary return to work plan dated 30 April 2014 recommended that the plaintiff return to work four hours per day with restrictions to avoid repetitious bending, no lifting or carrying in excess of 5 kilograms, and to undertake work in a self-paced manner. It was based upon an opinion of Dr Boys, orthopaedic surgeon. It recommended that the temporary return to work plan commence on 19 May 2014. Attached to the temporary return to work plan is an annexure identifying work tasks which were said to fit within the recommended work restrictions.[6]
[6]PCB 107-110
16 There are three further temporary return to work plans dated 26 May 2014,[7] 16 September 2014[8] and 22 October 2014.[9] Each of the further temporary return to work plans have an annexure identifying work tasks which were said to fit within the recommended work restrictions.
[7]PCB 111-114
[8]PCB 119-120
[9]PCB 122-126
17 There are no medical reports from Dr Taylor, nor Dr Boys, tendered into evidence. There are, however, medical reports, an extract of clinical notes and medical certificates from Dr Harvey, which provide an additional explanation of the plaintiff’s capacity for work and capacity to return to suitable employment.
18 In a medical report dated 25 September 2014, Dr Harvey considered that the plaintiff was unable to engage in his pre-injury duties. He considered that what other work the plaintiff would be capable of undertaking would be limited to very light part-time work, enabling the plaintiff to sit or stand while undertaking such work.[10]
[10]PCB 32
19 Dr Harvey provided the plaintiff with a certificate of capacity dated 30 March 2015 certifying that he had a capacity for suitable employment from 30 March 2015 to 26 April 2015, working eight hours a day on light duties in conformity with a return to work program.[11]
[11]Exhibit 1
20 Dr Harvey provided the plaintiff with a further follow-up certificate of capacity dated 13 April 2015, certifying the plaintiff had a capacity for pre-injury employment from 14 April 2015, working eight hours a day on light duties in conformity with a return to work program.[12]
[12]Exhibit 3
21 The plaintiff was taken to an extract of Dr Harvey’s clinical notes which the defendant submitted demonstrated that the plaintiff’s capacity to return to suitable employment was progressing well.[13]
[13]Exhibit 2
22 The first entry the plaintiff was taken to is dated 3 February 2015. The relevant part of the entry reads as follows:
“needs certificate
needs scritps (sic)
want to increase hours 8 5 days a week.”
23 The next entry is 2 March 2015. It reads as follows:
“doing 8 hrs at work now,
coping Ok on alt duties.”
24 The next entry is 30 March 2015. The relevant part of the entry reads as follows:
“for w/c cert
on light duties 8 hrs per day, going OK
wants to decrease meds, now.”
25 The last entry referred to is 13 April 2015. The relevant part of the entry reads as follows:
“back still sore but improving aolot and offered a new job, Health & Safety walks, own car, v happy…
…
P=w/c from, Ok normal duties, rv if ecxacerbation.”
(sic)
26 Each of the entries also note that the plaintiff was being treated by the prescription of Panadeine Forte for pain relief, Diazepam for muscle spasms and Nitrazepam as a sedative to be taken at night. By 13 April 2015, the plaintiff’s use of medication had been reduced to Panadeine Forte only.
27 Under cross-examination, the plaintiff accepted that the entries accurately recorded the consultations he had with Dr Harvey.[14] He said that he was recovering from the incapacitating nature of the injury to his lower back; however, he said that his levels of pain had not improved. He said that despite that level of pain, he was working eight hours per day, five days per week, as at March 2015, and was able to achieve that because he was undergoing rehabilitation.[15]
[14]Transcript 27-29
[15]Transcript 24
28 In his first affidavit, the plaintiff described the physical problems he encountered after he returned to work full time with Form 700:
“28.My return to work duties with Form 700 included sorting nuts and bolts. This task was done either sitting or standing before a workbench and involved sorting the nuts and bolts into different categories. There was not enough of this type of work to keep me fully occupied. Another job I was given was cleaning and refurbishing form pans. The return to work plan stated that this work could be done at a bench either standing or sitting. Realistically however it was not possible to do the work other than standing. Moreover the tasks required the forceful use of a chisel or claw hammer which caused jarring and played havoc with my back so it wasn’t suitable. I was also given the job of assisting a colleague to make storage boxes which fit over the top of a timber pallet. I was restricted in the type of physical assistance which I could provide to my colleague. I was not able to engage in any heavy lifting and had trouble with bending and stretching. It was a stand-up job. I struggled to cope and needed lots of painkillers to get me through the day.
29.I resigned from my position with Form 700 in about April, 2015 because I was struggling with back pain to take up what I hoped would be physically easier employment as an Occupational Health & Safety person and Yardman with Edgestress … .”[16]
[16]PCB 14-15
29 Under cross-examination, it was essentially put to the plaintiff that he had returned to suitable employment in the occupational health area on a full-time basis, both with Form 700 and then with Edgestress. Furthermore, that he was working overtime with Edgestress. That part of the cross-examination was derived from an employer injury claim report dated 18 May 2015 signed by Peter Cole, a director of Edgestress, alleging that the plaintiff was performing six hours overtime.[17] The plaintiff denied that he worked any overtime.[18] The conclusion I was invited to reach by the defendant was that, had it not been for the second incident, which I will refer to shortly, the plaintiff was, and would continue to be, fit to work in occupational health full time.
[17]Defendant’s Court Book (“DCB”) 139-140
[18]Transcript 32
30 The plaintiff said that he was not coping with the work he returned to on a full-time basis with Form 700. He said that Form 700, and presumably the persons who were orchestrating his return to work, wanted to get him back to work as soon as possible. He said that his body was not tolerating the work that he returned to. He returned to that work because he did not want to get the sack.[19] He added that he was in constant pain and his ability to cope with the work was “terrible”.[20]
[19]Transcript 23
[20]Transcript 36
31 At the time the plaintiff was working for Form 700, he said that his boss was Peter Cole. Cole left the employ of Form 700 and set up a similar business under the name of Edgestress. He invited the plaintiff to take up employment with Edgestress. Under re-examination, the plaintiff recounted a conversation he had with Cole regarding how he was coping with the full-time work with Form 700 relevant to the invitation to take up employment with Edgestress:
Q:“Can you tell His Honour, please, as best you can recollect, what the discussion was that you had with him where he invited you to come and work and what he said to you?---
A:Oh, he said, Your Honour, ‘I’m starting my own business, and, ah, I’ve got this lined up, I’ve got this lined up’. It sounded fantastic. Company car, phone, all that sort of stuff. He goes, ‘How you going here?’. I said, ‘Oh, well, shithouse to tell you the truth, you know’, and he goes, ‘Well, I want you with me’, and you know, I spoke about it with my family and all that sort of stuff, and it was a lot better on my body.”[21]
[21]Transcript 36
32 Under re-examination, the plaintiff described having significant difficulties maintaining particular postures, for example he said that he could stay seated for about 20 to 30 minutes and could stand for about the same period of time. I infer from his answers that beyond those timeframes, he would experience interference with his ability to maintain those postures any longer because of pain.[22]
[22]Transcript 38
33 The plaintiff submitted that this evidence demonstrates that he has only been fit for part-time light work of the kind he was undertaking in November 2014. According to the relevant temporary return to work plan dated 22 October 2014, the plaintiff was fit to perform four hours’ work per day. Over an average week comprising five days, that amounts to 20 hours per week. The plaintiff submitted that there is sound medical support for the proposition that he was not capable of working increased hours.
34 That sound medical support was said to have come from Dr Boffa, occupational physician, who examined the plaintiff on 3 November 2014.[23] It would appear that he was aware that the plaintiff was working 20 hours per week with the restrictions referred to in the relevant temporary return to work plan. He was specifically asked about the plaintiff’s prognosis relevant to work and working hours. He said:
“The worker has a current work capacity for current duties and hours but I believe he is unable to increase hours or progress to further duties.”[24]
[23]DCB 18-23
[24]DCB 22
35 The opinion of Dr Boffa is supported by a similar opinion provided by Dr Harvey in the report I have already referred to of 25 September 2014, although, subsequently, Dr Harvey provided the plaintiff with the two medical certificates I have already referred to, and there are the entries in his clinical notes, all of which suggest that he changed his opinion relevant to the plaintiff’s capacity for suitable employment toward the end of 2014 and going into the early part of 2015.
36 The plaintiff referred to his evidence of the pain and suffering consequences resulting from the injury to his lower back which he submitted was a clear demonstration of the gravity of the impairment of the function of his lower back:[25]
[25]PCB 17-20 and 24-25
· Constant pain which varied from moderate pain to moderately severe pain.
· Limitation on sitting for more than 30 minutes.
· Limitation on standing in a static position for more than five minutes.
· Interference with the capacity to bend, twist, lift or engage in any impact type activities.
· Shooting pain and a burning sensation extending down the left lower limb.
· Reliance on the medication referred to in Dr Harvey’s clinical notes.
· Interference with sleep, requiring medication to assist with sleep.
· Fatigue due to poor quality sleep.
· A reduction in general ability to engage in daily physical activities.
· A change in clothing to accommodate an inability to put on socks and shoes and pants.
· An inability to continue with physical activities such as going to the gym, riding an off-road motorcycle, and engaging in other activities such as going shopping with his daughter, going to the movies, going camping and engaging in general social activities.
The second injury
37 It is unnecessary to say much about what occurred on 7 May 2015 because both parties agreed that the additional injury suffered by the plaintiff has resulted in further spinal fractures and has rendered him incapacitated for any suitable employment.
The submissions
38 The plaintiff submitted that he suffered a major injury to his lower back resulting from the first incident.
39 The plaintiff pointed to several pieces of the evidence to demonstrate that his capacity for suitable employment was always about 20 hours per week. Furthermore, that from the time he returned to full-time work in the occupational health area with Form 700, it became evident that he was seriously struggling. The plaintiff then pointed to the opinion of Dr Boffa, submitting that it was sound medical opinion which accurately reflected the plaintiff’s capacity, confirmed by the plaintiff’s own evidence that he was seriously struggling to maintain full-time employment with Form 700 in the occupational health area.
40 The defendant, on the other hand, submitted that the plaintiff was gradually improving from the earlier more significant impact of his lower back injury to the extent that he was able to make a graduated return to full-time work in suitable employment in the occupational health area. Furthermore, the defendant pointed to not only the medical certificates provided by Dr Harvey certifying the plaintiff as being fit for that work, but also to Dr Harvey’s clinical notes which suggest that the plaintiff was successful in a level of recovery returning him to a capacity to work full time in the occupational health area while working for Form 700.
41 The defendant’s thesis is immediately an attractive one because it appears to add up; however, what it does not take into account is the plaintiff’s evidence of the dramatic pain and suffering consequences of the impairment of the function of his lower back, and that even though he cooperated with the return to work, he did not experience a reduction in pain, and then seriously struggled to maintain full-time employment.
Conclusions
42 Firstly, I accept that the plaintiff was engaged in a particularly strenuous activity which resulted in him suffering a dramatic and disabling injury to his lower back.
43 Secondly, I accept the plaintiff’s evidence that he has suffered extensive pain and suffering consequences which of themselves are dramatic and disabling and interfere with almost every aspect of his working and non-working life.
44 Thirdly, I accept that the plaintiff did make a measured recovery to the point where he was able to return to suitable employment on reduced hours with significant restrictions. I repeat that from the aggregate of the temporary return to work plans, he was restricted in that he was to avoid repetitious bending, no lifting of more than 5 kilograms and he was to work in a self-paced manner. None of those restrictions were lifted at any time as far as I can see from the evidence I have examined.
45 Fourthly, I accept that the plaintiff is a very genuine man who has given a good account of himself. I accept that there is something of the stoic about him. He committed himself to a regime of medical treatment which gave him some level of recovery, and he cooperated fully in attempts to rehabilitate himself so that he could return to suitable employment. That is commendable conduct on any view.
46 Fifthly, I accept the plaintiff’s evidence that he was being actively encouraged to return to work despite being in constant pain, requiring significant loads of medication and suffering the dramatic and disabling pain and suffering consequences which I have summarised above.
47 Sixthly, I accept the plaintiff’s evidence that when he was offered an alternative job by Mr Cole with Edgestress, that he gave a frank account to Mr Cole that he was performing terribly on his return to full-time employment, and described how he was coping in a crude but very descriptive way - “shithouse to tell you the truth”.
48 Seventhly, the entries in Dr Harvey’s clinical notes do not contain any statement of opinion. They rather impressed me as being an account of an exchange between Dr Harvey and the plaintiff. It must be recognised that care must be taken in dealing with clinical notes.[26]
[26]Woolworths Ltd v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
49 Eighthly, and in a similar vein, Dr Harvey’s medical certificates appear to me to be a reflection of what was expected of the plaintiff that the return to work plans were pushing him in the direction of a return to work, and then a return to full-time work in suitable employment. It must be remembered that each of those certificates have noted on them that they were for light duties following the return to work programs which I have referred to at some length above.
50 Ninthly, I must balance up all of the evidence. In doing that, it is difficult to go beyond what I consider to be the very impressive evidence of the plaintiff that he cooperated with the return to work plans whilst labouring under significant difficulties. I prefer his evidence that translating his return to work from what Dr Boffa thought was reasonable to full-time light duties was beyond him.
51 I am, therefore, satisfied that the plaintiff is unfit for his pre-injury duties. I am satisfied that he is fit for suitable employment in the occupational health area. I am satisfied that the restrictions referred to by Dr Harvey and noted in the return to work plans have a sound basis. I am satisfied that Dr Boffa was in a very good position to opine whether the plaintiff was capable of increasing his hours beyond about 20 hours per week.
52 In the circumstances, I will grant the plaintiff leave to bring a proceeding for the loss of earning capacity consequences flowing from the impairment of the function of his lower back.
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