Hammoud v Adbri Masonry Pty Ltd
[2016] VCC 1568
•25 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05370
| Khaled Hammoud | Plaintiff |
| v | |
| Adbri Masonry Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4-5 October 2016 | |
DATE OF JUDGMENT: | 25 October 2016 | |
CASE MAY BE CITED AS: | Hammoud v Adbri Masonry Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1568 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Barwon Spinners Pty Ltd v Podolak; St Laurence Community Services (Barwon) Inc & Ors v Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; Pausak v Barwon Health & Ors [2005] VSCA 33; Advanced Wire & Cable Pty Ltdand Victorian WorkCover Authority [2009] VSCA 170, [63]; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111
Judgment: Leave granted to the plaintiff
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Advice Line Injury Lawyers |
| For the Defendant | Mr A Moulds QC with Ms N Wolski | Lander & Rogers Lawyers |
HER HONOUR:
1 Mr Hammoud seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of an injury to the lumbar and thoracic spine sustained on 25 October 2012 while working for the defendant as a factory worker. The injury relied upon is an aggravation of pre-existing degenerative changes in the lumbar and thoracic spine. The plaintiff says that as a result of the impairment to the spine flowing from the injury he is permanently incapacitated for all employment. Alternatively, even if he retains some physical capacity, given the entirety of his personal circumstances, which include very poor English, low-level of education, a work history in heavy occupations, and substantial physical restrictions, he is permanently unable to return to work in “suitable employment” for the purposes of the Act.
2 The defendant says that the plaintiff’s portrayal of himself as an invalid physically incapable of any work, whose condition is worsening, sits at odds with the medical evidence to the effect that there is a significant non-organic component to his presentation and that he retains a physical capacity for light part-time work, albeit for an unspecified number of hours. Whilst the defendant accepts that the plaintiff is permanently incapacitated for his pre-injury employment due to his work-related injury to the spine, and, following the Court of Appeal decision in Abburrow,[1] does not oppose the grant of a certificate for pain and suffering, it says that the plaintiff retains a residual work capacity for positions such as retail sales assistant, courier, Uber driver or general machine operator. If the evidence does not enable the court to decide how many hours per week the plaintiff is physically able to perform these jobs, then the plaintiff will not have discharged his onus to establish the extent of any incapacity for employment, and leave should be refused.
[1]Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46
3 The parties agree that if the plaintiff is found to be incapable of working 20 hours or more in suitable employment, leave ought be granted.
The plaintiff
4 According to his affidavits,[2] the plaintiff was born in January 1980 in Lebanon and was educated there to Grade 5. He was not a good student and did not study English. After leaving school he worked as a farm labourer, then completed a year of military service after which he worked in a hotel in Beirut for two years. He met his wife in Lebanon and they married here. She sponsored his migration to Australia at the age of 21 in 2001. He worked in meat processing for a year before commencing work for the defendant in around 2002 as a factory worker. After four years he became a leading hand and machine operator, using the forklift. Some of his duties involved operating a machine which poured cement into large containers. His job was to scrape the overhanging cement off the top of the containers and to drag the containers out by a rope. All his work duties were physical ones. He was in good health as at October 2012.
[2] PCB p.1-9
5 The incident the subject of this application occurred on 25 October 2012 when the plaintiff leant across a container to scrape the cement off it.[3] He felt a twinge in his back which he reported to his supervisor. He saw his general practitioner, Dr Salimi, in February 2013 about his ongoing back pain. He continued working but at some point his eight hour shifts were reduced due to his back pain, to a point where he was working for four hours per day on modified duties which consisted mainly of forklift driving and no heavy lifting. On 23 July 2014 his employment was terminated on the basis that he was unable to return to his pre-injury duties.
[3] See the plantiff’s affidavit’s at PCB pp.1-12
6 He has four children aged between 13 and 1. His wife has returned to work caring for young children in their home. He is now reluctant to leave the house in case his pain deteriorates while he is out. As at 26 September 2016 he was suffering from “almost constant pain in the lower back”[4] which runs down his left leg and is particularly bad at night. About twice a week he suffers from pain spasms that can be debilitating. He takes 4-6 Panadeine Forte daily and 2 Tramadol for the worst pain, a maximum of 3 days per week. He goes to the Mosque each morning, picks up his children from school, and does the shopping with his wife. He can sit for around 45 minutes, drive between 30-45 minutes and then needs a break. His English is very poor and he cannot read or write it. He is not capable of doing any sort of manual work. His poor English prevents him from doing office work or a customer service role. He is currently on the Newstart allowance.
[4] PCB p.9
7 In cross-examination, the plaintiff said that when he arrived in Australia he completed about 130 hours of the 500 hours of English classes available to him. When he was a leading hand he had an Arabic speaking supervisor who would help him communicate his instructions to workers. He insisted that he saw Dr Salimi on the day of or the day after the incident, and not for the first time on 5 February 2013. He said that after the incident he was working full-time on modified duties, not doing any supervisory duties, and was either covering bricks with plastic, driving the forklift or sometimes sweeping the floor.
8 He agreed that in early 2014 he felt pain when driving the forklift and had his hours reduced to 4 hours per day, 5 days per week. He agreed that he was taking a lot of very strong pain medication and that Dr Ho told him to not drive the forklift until he reduced the medication he was taking. He said that Dr Merhi reduced the dose of Tramadol he was on. He said that Dr Merhi arranged a second MRI scan[5] and told him that the scan revealed a worsening of his condition, a crack in the vertebrae, and that if he continued to work he might be completely paralysed. The plaintiff said that after hearing this from Dr Merhi he was scared and stopped working. He has not worked since.
[5]
9 The plaintiff agreed that when he saw neurosurgeon Mr Malham in September 2014 he took a list of his medications with him. He agreed that Mr Malham told him that his back was safe, stable and that no surgical intervention was needed. It was put to the plaintiff that Mr Malham also told him that he could continue doing light work at reduced hours. The plaintiff said he did not recall what Mr Malham said about this. He agreed that he is now taking mainly Panadeine Forte and Panadol Osteo and that he takes Tramadol a maximum of 3 times per week.
10 He agreed that he was on weekly payment till 2015 and has been receiving the Newstart allowance since then. He obtains his medical certificates for this from Dr Merhi. He said that while his wife cares for other children in their home, he does not assist her with this work. He does not do any housework or any cleaning. He goes shopping with her. Occasionally he picks up their children from school. He is never left alone to care for their young baby. His son helps him mow the lawns every two or three months. He agreed that he travelled overseas twice last year but said that he did not carry any heavy luggage.
11 He agreed that he is convinced that he cannot work at all, that he has made no efforts to retrain and that he has not sought to attend more English classes. He says that his condition has worsened over time. He said he could not work in retail because he feels depressed, cannot talk to customers, takes medication, and because his pain comes on suddenly. He said that he could not work as a courier because he feels pain after driving more than 20-40 minutes and has to stop and take medication. He said that working as a machine operator is not possible because even when he had to press buttons when he was working, he needed help to know what to do. He did not know what an Uber driver is. He has never used a cash register or handled money. He said that he needs to be cured so that he can resume his old life. He said that he does not know how to operate a computer but that he can search Ebay on his telephone and then he gets his wife to make purchases for him. He uses Facebook in Arabic only.
Medical evidence
12 The medical evidence may be briefly summarised. CT scan of the lumbar spine on 6 February 2013 reported as showing “moderate degenerative changes involving the left L5/S1 facet”.[6]
[6] PCB p.14b
13 The first MRI report of the thoraco lumbar spine on 20 June 2013 reported the following conclusions:
Right paracentral focal disc protrusion at T10/11 which indents the central aspect of the cord but is not associated with any significant canal stenosis and no intramedullary signal change. Minor broad based disc bulge at L4/5 and some early facet arthropathy at L/5 and L5/S1 but no significant central canal or foraminal stenosis or high grade exiting nerve root impingement seen.
14 MRI of the entire spine dated 27 March 2014[7] reported, relevantly as revealing:
…Right paracentral small disc protrusions at T10/T11 and T11/T12, causing minimal to mild cord compression.
Discogenic disease L4/5, with central annular disc fissure and mild central thecal sac compression.
Left sided facet joint arthropathy L5/S1.
[7] PCB p.30
15 On 28 January 2014, Dr David Ho, occupational health consultant, reported[8] to the defendant’s insurers that the plaintiff was suffering from a chronic pain syndrome secondary to facet joint arthropathy in his lower back, but that he was able to increase his hours gradually to his pre-injury level, albeit in alternative duties as a forklift driver. Dr Ho recommended a worksite assessment, which he then carried out. He reported on 27 February 2014[9] that the plaintiff should not operate a forklift until he had ceased taking Oxycontin, Endone and Valium. Once he had weaned off this medication, he could increase his forklift driving duties (which were at that time 25 hours per week) by one hour increments at weekly intervals to his pre-injury hours.
[8] DCB p.3
[9] DCB p.10
16 On 18 September 2014, Professor Richard Bittar, neurosurgeon, reported[10] that the plaintiff suffered work-related aggravation of thoracolumbar spondylosis, that he was permanently incapacitated for his pre-injury duties, and that, whilst “in theory he had the physical capacity to undertake very sedentary work, taking into account his education, training, skills, work experience and very limited English, it is extremely unlikely that he would be able to procure and maintain such employment”.[11] He concluded that the plaintiff’s total incapacity for work was permanent.
[10] PCB p.41
[11] PCB p.41
17 On 9 December 2014, Dr Peter Boys, orthopaedic surgeon, reported[12] to the defendant’s insurers that although the plaintiff suffered a work-related soft tissue injury to the lumbar spine, this injury had now ceased and the plaintiff’s current condition “reflects constitutional degenerative changes, ongoing psychological disturbance and narcotic dependency”.[13] He felt that the plaintiff should be weaned off all narcotic medications, take only over the counter analgesic or anti-inflammatory medication, and receive psychological treatment. He felt that the plaintiff could eventually work full-time in “light unskilled employment”.
[12] DCB p.14
[13] DCB p.19
18 As at 7 April 2015, Dr Bruce Mitchell reported[14] that he performed a number of medial branch blocks on the plaintiff in 2013 and 2014 and concluded that the plaintiff had a current capacity for working more than four hours per day on very light duties and on restricted days per week.
[14] PCB p.35
19 On 26 May 2016, the plaintiff’s treating general practitioner, Dr Michael Merhi, reported[15] that the second MRI showed worsening pathology compared with initial scans; that the plaintiff could not undertake any pre-injury duties and, “at this stage, is unable to undertake any other relevant work duties (especially in view of his poor English and lack of training)”.[16] He noted that the plaintiff had been motivated to recover but had become depressed due to the lack of recovery to date and associated financial difficulties.
[15] PCB p.29
[16] PCB p.29
20 Mr Rodney Simm provided a number of medico-legal reports to the plaintiff’s solicitors. In his first report dated 26 March 2015[17] he diagnosed chronic mechanical lumbar pain with referred symptoms in to the left lower limb with no clinical signs of radiculopathy. He stated that the gradual deterioration of the condition and worsening of pain following cessation of employment was consistent with a chronic spinal pain syndrome. Mr Simm noted that the plaintiff “seemed symptom focused and there were features of chronic pain, which included overt pain behaviour and regional sensory changes in the left lower limb, there was no other elaboration of physical signs”.[18] He concluded that the plaintiff “probably has a persistent painful physical condition of the lower back”.[19] He recommended reduction in the intake of opiate analgesia, and noted there were some features of depression, including his antisocial behaviour and loss of interest in activities. He felt that the prognosis was poor. Given his poor English and his established pattern of pain, he concluded that the plaintiff had no realistic work prospects.
[17] PCB p.43
[18] PCB p.47
[19] PCB p.47
21 On 14 July 2016, Mr Simm reported[20] a history from the plaintiff that his pain had become worse and was now constant although varying in severity. When the pain is severe he needs help showering and dressing. His pain increases if he sits or walks for more than 25 minutes or drives for more than an hour. He reached the same diagnosis as before, namely that the pre-existing lumbar disc degeneration at L4-5 with some associated posterior disc bulging could have rendered him prone to a painful back injury, and that the acute/severe pain at the time of the back injury was consistent with some degree of disruption of the degenerate annulus of the L4-5 intervertebral disc, without a significant degree of disc protrusion. Mr Simm felt that the plaintiff’s ongoing pain has features of discogenic pain, “with somatic rather than true radicular pain into the left lower limb”.[21] He noted that on examination there was less evidence of a chronic adverse pain response than on the previous occasion that is, minimal overt pain behaviour when examined and no elaboration of the physical signs. In relation to employment prospects, Mr Simm concluded that the plaintiff has “a theoretical capacity for light non-physical forms of employment”,[22] and, at 36 years of age, could possibly be retrained to allow him to undertake non-physical work. At the time of the report, however, Mr Simm concluded that he had no current work capacity.
[20] PCB p.50
[21] PCB p.52
[22] PCB p.53
22 Dr David Middleton, occupational consultant, reported on 15 July 2016,[23] that he had reviewed the medical reports and concluded that the plaintiff was permanently incapacitated for this pre-injury duties as a labourer and for any type of employment that has a significant physical/manual component. He concluded:
In theory, Mr Hammoud does have some capacity to perform sedentary work, however taking into account his age, education, training, work experience, place of residence, as well as his very limited English, his capacity to procure and maintain such employment is negligible. It is my opinion that Mr Hammoud’s total incapacity for work is permanent.[24]
[23] PCB p.55
[24] PCB p.65
23 Mr Michael Dooley, orthopaedic surgeon, reported to the defendant’s solicitors on 1 July 2016[25] that the plaintiff sustained a work-related soft tissue injury to his lumbar spine with aggravated underlying degenerative disc disease, and complained of constant low back pain and pain in the left lower limb. Mr Dooley found no clinical or radiological evidence of major disc prolapse or nerve root entrapment. Mr Dooley felt that the constancy and intensity of the plaintiff’s ongoing pain and described disability were greater than one would expect to see for his organic condition, and that the plaintiff “has had a psychological reaction to his situation”[26] which influences his ongoing symptoms. He did not consider there was any need for physiotherapy or surgical intervention, and that the plaintiff should increase his activity and exercise. He concluded that from an orthopaedic point of view, the plaintiff would have a physical capacity to carry out light physical work and clerical duties.
[25] DCB p.24
[26] DCB p.26
24 On 2 September 2016,[27] Mr Dooley opined that the plaintiff would have the physical capacity to work as a retail sales assistance, a courier of small goods, a light machine operator and an Uber driver. On 12 September 2016, Mr Dooley opined that the plaintiff would have to return to any alternative employment on a graduated basis, and would have the potential to return towards full work hours.
[27] DCB p.28
25 A CoWork report by Katarina Jakovljevic dated 31 August 2016[28] identified a number of occupations as potentially suitable for the plaintiff. The parties focused on four of these: Retail Sales Assistant; Courier (spare parts etc.); General Machine Operator; and Uber Driver. Ms Jakovljevic felt confident that the plaintiff could learn cash handling skills, could work as a machinery operator and work as a driver.
[28] DCB p.30
Legal principles
26 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of loss of earning capacity and pain and suffering are, 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.[29] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[30]
[29] Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[30] Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].
27 The whole of the evidence before the court should be considered, not just the medical evidence.[31]
[31] Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].
28 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40% or more.
29 Section 134AB(38)(g) of the Act requires the plaintiff to establish that he would not, given his capacity for suitable employment[32] after the injury and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in his earning more than 60% of his earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.[33]
[32] The definition of “suitable employment” was amended by s 74(3) of the Act. It means employment in work for which the worker is suited regardless of whether the work or the employment is available or whether the work or the employment is of a type or nature that is generally available in the employment market.
[33]Accident Compensation Act 1985 (Vic) s 134AB(38)(g).
30 Section 5 of the Act provides that determination of “suitable employment” requires consideration not just of the worker’s incapacity but also, relevantly, the worker’s age, education, skills and work experience.[34] In Barwon Spinners[35] the Court stated that “suitable employment”:
…looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature and no doubt extent of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as suitable if situated too far from the worker’s place of residence.[36]
[34] See sub-paragraph (a)(iii) of the definition of “suitable employment” in s 5 of the Act.
[35] Barwon Spinners Pty Ltd v Podolak; St Laurence Community Services (Barwon) Inc & Ors v Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; Pausak v Barwon Health & Ors [2005] VSCA 33
[36] Barwon Spinners Pty Ltd v Podolak; St Laurence Community Services (Barwon) Inc & Ors v Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; Pausak v Barwon Health & Ors [2005] VSCA 33, para [25]
Findings and reasons
31 I found Mr Hammoud to be a relatively straightforward witness. Based on the general recent medical consensus (from Mr Simm, Dr Middleton, Mr Dooley and Dr MitchelI), I am satisfied that the plaintiff is permanently incapacitated for his pre-injury duties as a result of the injury to his spine.
32 Each of these reporting doctors found that the plaintiff retains some physical capacity for light, non-physical, clerical or sedentary work. Only Mr Dooley opined that the plaintiff has the physical capacity to work in the positions identified by Ms Jakovljevic: Retail Sales Assistant, Courier, General Machine Operator, and Uber driver. I attach little weight to Mr Dooley’s opinion, as it does not address the plaintiff’s poor English skills, work history in manual labour, physical restrictions and lack of transferrable skills, which are integral to a determination of capacity for suitable employment after rehabilitation or retraining. I also found Ms Jakovljevic’s report to be of limited assistance. She did not have the benefit of the reports of Dr Middleton and Mr Simm. She considered only the medical restrictions imposed by Mr Dooley, and ignored the opinion of Dr Merhi.
33 For these reasons, I prefer the opinions of Dr Middleton, Mr Simm and Dr Merhi, who have addressed some or all of these matters and who have concluded that, having regard to his physical symptoms and restrictions, poor level of English, work history in manual labour and lack of transferrable skills, the plaintiff permanently has no capacity for suitable employment. I note in this regard that I accept what the plaintiff has said are his physical restrictions, frequent onset of pain, sitting and driving tolerances, and lack of basic familiarity with handling money, operating a computer or giving instructions in English.
34 It follows that I am satisfied that while the plaintiff may retain some theoretical physical capacity to do some work, given his limited education, poor English, work experience and skill level, as well as his physical restrictions, he permanently has no capacity for suitable employment.
35 It also follows that I am satisfied that the loss of earning consequences of the impairment of his spine are more than considerable when compared with other cases in the range of permanent impairments of the function of the spine, and that the plaintiff has established a permanent loss of earning capacity of more than 40%.
36 In the light of the defendant’s indication that it does not oppose the grant of leave in respect of pain and suffering, I indicate only that I am satisfied on the material before me, particularly in the light of the plaintiff’s permanent inability to return to his pre-injury employment and in the light of the evidence as to his pain and restrictions, that, the pain and suffering consequences of the work-related permanent impairment of the function of the (thoraco-lumbar) spine are more than considerable when compared with other cases in the range of permanent impairments of the function of the spine.
Conclusion
37 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the work-related injury to the spine. I reserve the question of costs.
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