Heenan v Wingfoot Australia Partner Pty Ltd
[2012] VCC 1404
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02043
| STEPHEN JOHN THOMAS HEENAN | Plaintiff |
| v. | |
| WINGFOOT AUSTRALIA PARTNER PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 17 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Heenan v Wingfoot Australia Partner Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1404 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Injury to lower back in workplace accident – Previous injuries to back – Whether “suitable employment” available – s.134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W. R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Stephen Heenan had worked as a tyre fitter with the defendant almost continuously since 1981. On 4 February 2009, whilst helping to move a wheel balancing machine weighing over 200kg, he injured his back. His employment was terminated on 11 August 2010 on the basis that he could not carry out the requirements of his pre-injury position.
2 Mr Heenan had suffered workplace injuries to his back in 1993 and 2003 but had recovered each time and returned to his previous duties. The medical opinions confirm that he is now unable to carry out his pre-injury work and that his ability to perform many of the activities of daily living have been compromised. Vocational assessments by experts engaged by the parties agree that the suitable employment open to Mr Heenan is limited. Ms Green, the expert engaged by the plaintiff’s solicitors, considers that because of Mr Heenan’s back injury and his work background and experience, he is essentially unemployable.
3 Mr Heenan seeks leave pursuant to s.134AB of the Accident Compensation Act 1986 for leave to bring a proceeding for both pain and suffering and loss of earning capacity damages arising from his workplace injury in 2009. The issues for determination in the proceeding are:
a.whether Mr Heenan has a present capacity to engage in suitable employment sufficient to earn at least about $400 per week;
b.if Mr Heenan does have such a capacity, whether nevertheless the impairment to the body function of his back arising from the workplace incident, when compared with the position immediately before the incident, satisfies the statutory test for serious injury.
Previous injuries
4 In September 1993, Mr Heenan injured his back at work lifting a heavy truck tyre. Mr Heenan had an MRI and was referred to an orthopaedic surgeon, Mr Richard Pease. Mr Heenan said that, “After that injury I would have occasional flare-ups which required me to have time off work generally in the order of a few days and short periods on modified duties. I also had some physiotherapy. I was able to return to normal duties and to continue having a full and active life outside work”.
5 Mr Heenan suffered a second back injury in September 2003 whilst vigorously pulling a tube stuck in a tyre. Mr Heenan returned to work performing light duties. Later in about 2004, an arrangement was reached with his employer whereby he would return to work and “continue working in the car bay changing car tyres only, but that I would not be required to do any heavy lifting or to change heavy vehicle tyres including truck or tractor tyres”.
6 Mr Heenan had regular physiotherapy until about 2005/06, including four sessions of traction. It is clear that Mr Heenan took longer to recover from his injury in 2003, however from about 2004 he was back “working in the car bay changing car tyres without interference” and his “back pain had improved to the point where the pain was occasional rather than constant”. He said he “was determined to continue working and not let short episodes of pain put me off”. Mr Heenan continued until February 2009 to fit and balance tyres for cars and four wheel drive vehicles and even occasionally for small trucks from 3.5 to 6 tonnes.
7 Mr Heenan’s general practitioner, Dr Stephen Hook, reported that, “Prior to 4 February 2009, Stephen Heenan was quite capable [of] full-time work but on altered duties of no heavy lifting nor recurrent bending. This was detailed to his employer on return to work after his previous accident”. This evidence indicated that generally Mr Heenan had recovered from the injury in 2003 provided he was not required to do “heavy work”. Helping to manually move a tyre balancing machine weighing in excess of 200kg was quite outside the scope of his expected work duties.
8 Prior to the injury on 4 February 2009, Mr Heenan said he “continued to enjoy a full and active lifestyle with my family”. He said that, “As long as I avoided anything too heavy or awkward I was living a full and active and enjoyable life”. If I had a flare-up of pain I would take medication but I had been able to reduce that to being on the odd day only”.
Medical treatment of the 2009 injury
9 Mr Heenan did not immediately seek medical treatment when he injured his back in February 2009, although he said that “within about ten minutes I felt a burning pain around my beltline in my lower back. The pain was far worse than I had previously experienced. I continued to work with difficulty, pain and restriction up until 16 February 2009 when I was scheduled to take two weeks annual leave. I had two weeks of holidays and during my leave I attended my general practitioner as the pain worsened over my days off”.
10 Mr Heenan saw Dr Margie Sanders at the Wyndham House Clinic on 26 February 2009. She certified him as unfit for his work duties. Mr Heenan lodged his workers compensation claim that day. Mr Heenan said that when his employer had agreed to his return to tyre fitting duties in 2004, and the “ongoing need for permanent restrictions”, his manager, who had participated in the discussions, had told him a week later “that the permanent restrictions were ‘bullshit’”. It was the same manager who had asked Mr Heenan to shift the wheel balancing machine in February 2009 and, when presented with the medical certificate from Dr Sanders, had thrown it in the rubbish bin. Mr Heenan did not return to work with the defendant and it later terminated his employment.
11 An MRI of the lumber spine on 26 February 2004 showed “excellent preservation of the lumbar discs without a disc bulge or protrusion. No nerve root compression”. An MRI on 7 April 2009, after the later injury, showed “minor” or “mild” disc displacement at L2/3, L3/4, L4/5 and L5/S1, but without any identifiable neurocompression.
12 Mr Heenan was referred to an orthopaedic surgeon, Mr Ian Critchley, who first saw him on 2 April 2009, Mr Critchley noted that, “At the time I saw him he had had treatment of hydrotherapy and physiotherapy and also was taking Panadeine Forte”. Upon review of the MRI, Mr Critchley said, “There was generalised disc degeneration which was probably mild. My feeling was that he had exacerbated previous degenerative disease of his lumbar spine and that he should settle down with a rehabilitation program”.
13 Mr Critchley noted that Mr Heenan “is however going to have to avoid heavy lifting in future and also working in confined and awkward spaces. It is conceivable however that this back injury may not settle and in which case Mr Heenan is likely to require retraining for his sedentary occupation”. Mr Heenan said that Mr Critchley had told him that “maybe down the track” he should “look for another job”.
14 In 2009, Mr Heenan paid for his own physiotherapy treatment for about eight or nine months, two to three times a week. He could not afford to continue. He now carries out an exercise program, walks for about 20 minutes and uses heat bags, Deep Heat and goanna oil. His prescription medication has included Tramal and Panadeine Forte for pain. Now, Mr Heenan takes four Panadeine Forte most days, two in the morning and one or two later in the day. On “odd days” he does not use medication. He takes Panamax (an over the counter medication) “when the pain is worse”. He said the Panadeine Forte has the side effects of “indigestion and constipation”. He has also been prescribed the anti-depressant Escitralapram for anxiety.
15 Mr Heenan continues to see Dr Stephen Hook at the Wyndham House Clinic, about every six to eight weeks. Recently, Dr Hook arranged five sessions of physiotherapy, to which Mr Heenan is entitled because he is in receipt of a disability pension. Mr Heenan said that particularly with the cold weather his pain had been “pretty unbearable”. Mr Heenan had seen the physiotherapist Mr Jim Marks on three occasions over the previous week and a half before the hearing and on each occasion had had traction.
Medical opinions
16 Dr Hook in a recent report to the plaintiff’s solicitors stated, “He has not improved and is unlikely to improve. I believe he is permanently incapacitated for all work. He suffers constant back pain and is unable to sit, stand or walk for extended periods. He cannot do recurrent bending or lifting. He cannot do any manual work or even sedentary work due to these disabilities and ongoing pain. Not only has he been unable to work but he is also unable to pursue his interest in trail bike riding, boating, fishing, camping and gardening. These activities have become limited and difficult. This has a significant impact on his domestic and recreational activities. I believe these disabilities are permanent and not likely to improve. Surgery is not appropriate or likely to help, especially considering the multilevel disc injuries as per MRI and CT scan results attached. I believe Mr Heenan is permanently incapacitated for all work and is not likely to ever work again in any job. This is even more likely to be the case considering his age, work experience, skill level and education. He is not suitable even for any part-time work … His progress is poor and there is no other treatment likely to improve him to the point of being able to re-enter the workforce”.
17 I have previously noted the views of the treating orthopaedic surgeon, Mr Critchley.
18 Mr Kenneth Brearley, a consultant orthopaedic surgeon examined Mr Heenan on 31 March 2010 and in July 2012. On the earlier occasion, Mr Brearley noted that Mr Heenan “has no problems with the activity of daily living”, although “he is not fit to return to his former heavy work. Providing he does avoid such activity he will probably be able to carry out light work for the foreseeable future”. In the later examination, Mr Brearley noted “slightly more restriction of movements than before” in the back, and in the legs, “an area of reduced sensation over the outer side of the left calf and also over the dorsum of the left foot”.
19 Mr Brearley reviewed Mr Heenan’s capacity for work and for the activities of daily living. He said, “Since 4 February 2009 there has been a massive decline in his abilities and his work functioning”. As regards work, Mr Brearley said, “I do not believe he is capable of undertaking any employment. No work is suitable for him. He has no computer or office skills whatsoever. He is not fit for either full or part-time employment”. As regards his domestic and recreational activities, Mr Brearley concluded that, “Mr Heenan’s life has thus been seriously disturbed and this will continue for the foreseeable future”.
20 Mr David Brownbill, a consultant neurosurgeon, examined Mr Heenan at the request of his solicitors on 4 July 2012. Mr Brownbill considered that Mr Heenan’s back injury was “likely to restrict him [being involved in] employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a marked degree, and I consider that such incapacity will continue for the foreseeable future”.
21 Mr Brownbill said that, “Noting his age of fifty-five years, his education being limited to Year 8, his work experience always having involved heavy physical activity, the demonstrated lumbar spine and degenerative changes, and his described ongoing activity related lumbar pain, I consider that on probability he would have difficulty performing any work for which he is suited in an ongoing or reliable fashion”.
22 Mr Brownbill also thought that his impairment was “likely to restrict him in relation to social, domestic and recreational activities to a moderate to marked degree and I consider such incapacity will continue for the foreseeable future”.
23 Mr Ian Jones, an orthopaedic surgeon, saw Mr Heenan at the request of the defendant’s solicitors on 10 March 2010 and 10 May 2012. In his later report Mr Jones noted that, “Of recent times he has described some neurological symptoms affecting his left lower leg”. Mr Jones concluded, “Mr Heenan is unfit for physical work. He would be capable of employment where there are no demands placed on his lumbar spine in terms of bending or lifting. A lift limit of 3kg would need to be in place. If such suitable work alternating between sedentary and standing employment can be found I believe this patient would be able to work at least on a part-time basis”.
Mr Heenan’s credibility
24 Mr Heenan gave his evidence in a straightforward manner without any prevarication. There was nothing in his presentation which would lead me to doubt his credibility as a witness. The examining doctors did not record anything to the contrary:
a.Mr Brearley described Mr Heenan as “a pleasant, decent and dignified man … His history is given in a straightforward manner without any obvious exaggeration or embellishment”;
b.Mr Brownbill said that Mr Heenan was “cooperative with a flattened affect but without embellishment appearing straightforward in his presentation”;
c.Professor Vernon Marshall, an emeritus orthopaedic surgeon, saw Mr Heenan at the request of the workers compensation insurer on 16 March 2009. Professor Marshall said that he accepted Mr Heenan’s “account of the new [February 2009] injury and he presented in a genuine fashion”;
d.Mr Jones said that he could “find no evidence of any functional symptoms or signs in this patient”;
e.Dr Dominic Yong, a specialist occupational physician, examined Mr Heenan at the request of the defendant’s solicitors on 25 July 2012. He said he did “not detect any functional components. There were no Waddell signs or other evidence of pain behaviour”.
Effect on activities of daily living
25 Mr Heenan said that his back condition had not improved. He continues “to experience ongoing and unremitting low back pain which varies in intensity. I suffer from a burning sensation in my buttocks and the tops of my legs. I also suffer from a pulsating sensation in my left thigh and calf”. Mr Heenan said his activities of daily living had been adversely affected by his back injury suffered in 2009:
a.before his injury, Mr Heenan made regular camping trips with his family to the Murray River at Easter, Christmas, long weekends and other times. They would fish on the river from Mr Heenan’s boat. He “basically lived and breathed fishing”. Apart from Easter 2012, these trips have stopped. At Easter, Mr Heenan’s children and grandchildren insisted he go and took his boat for him. He was “constantly uncomfortable or in pain”;
b.Mr Heenan and his wife own a caravan. They tried recently a week camping near Bendigo. Mr Heenan said he had difficulties setting up camp and was restricted to short walks. He said he “spent a fair amount of time basically resting up or lying down in the caravan”. Attempts to use a gold detector were unsuccessful;
c.Mr Heenan would go motorbike and trail bike riding in the bush at Boho and in the Strathbogie Ranges with his workmates before the recent injury. He also used to hunt deer near Mansfield. He has been unable to resume these activities since February 2009;
d.Mr Heenan had established an extensive garden and had a large vegetable patch, a flower bed and bulbs. Gardening is now difficult and the vegetable growing has been curtailed. This and other tasks around the home are now performed by family members;
e.assisting with domestic chores is now difficult, including cooking, vacuuming, sweeping, mopping and cleaning the bathroom and toilet;
f.Mr Heenan is restricted in walking to about 15 to 20 minutes. He has difficulty standing or sitting for prolonged periods or performing repetitive bending or lifting. He now struggles to ride his bike which he previously enjoyed doing;
g.he has difficulty sleeping and often wakes early with his back “quite stiff and painful”. Mr Heenan’s intimate relations are affected;
h.he is unable to drive for prolonged periods. He generally uses a full length back support;
i.interaction with his eight grandchildren is limited because of the fear of aggravating his back pain.
26 These matters are confirmed by Mr Heenan’s wife, Jennifer Margaret Heenan, in an affidavit sworn by her. Mr Heenan was cross-examined about his participation in domestic and recreational activities. I accept the evidence of Mr and Mrs Heenan in this regard.
Ability to work and vocational assessments
27 Before he went to work with the defendant as a tyre fitter, Mr Heenan worked on the family farm. He has had only short periods of other employment, all many years ago. Mr Heenan completed Year 9 at school. His reading and writing and his computer skills are limited. He is now aged 55. He was not offered alternative work, rehabilitation or retraining by the defendant. The defendant terminated his employment because it had no suitable work for him.
28 The defendant’s solicitors had Mr Heenan assessed by a specialist occupational physician, Dr Yong, in July 2012. Dr Yong concluded that Mr Heenan could perform tasks which “avoided repeated bending and twisting the back … firm pushing and pulling … [and] lifting more than 8kgs on a repeated basis”. Dr Yong considered that there was “no requirement to restrict his working hours”.
29 In August 2012, Dr Yong, by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO), concluded that the duties of a number of jobs would comply with the restrictions he considered should apply to Mr Heenan. In order to prepare for his re-entry into the workplace, Mr Heenan would need to “do a home exercise program, do a daily walking program, do domestic tasks [and] participate in a return to work program”.
30 The defendant’s solicitors sought an opinion from Mr Jones, the orthopaedic surgeon, about Dr Yong’s recommendations. In May 2012, Mr Jones had considered that Mr Heenan was only capable of employment “at least on a part-time basis” provided “there are no demands placed on his lumbar spine in terms of bending or lifting, a lift limit of 3kg [and] alternating between sedentary and standing employment”.
31 Mr Jones disagreed with Dr Yong that the following occupations were within Mr Heenan’s capabilities:
· check out operator;
· courier or postal delivery officer;
· service station attendant;
· sales assistant (database sales assistant) (general));
· solar sales consultant;
· warehouse/delivery driver;
· service assistant – Dan Murphy’s;
· Rebel Sports casual sales assistant;
· warehouse administration clerk.
32 Mr Jones agreed with that Dr Yong that Mr Heenan could work as:
· purchasing and supply logistics clerk.
33 Mr Jones apparently considered that Mr Heenan could work at certain aspects of other jobs Dr Yong considered appropriate:
· as an office cashier which was part of the occupation, checkout operator and office cashier, listed by Dr Yong;
· trainee spare parts interpreter. The description “trainee” being added by Mr Jones;
· the job of “customer service trade base outlet” but “excluding any lifting required in merchandising”.
34 Ms Katrine Green is a registered psychologist with experience in human resources and organisational consulting, vocational and outplacement counselling, training and occupational rehabilitation, including job counselling and job placement for injured workers. She prepared a vocational assessment for Mr Heenan at the request of his solicitors following an interview with the plaintiff in August 2012. Ms Green was cross-examined before me. The purpose of Ms Green’s assessment was to determine Mr Heenan’s “fitness for suitable employment” taking into consideration his “education, work history and transferrable skills”. Ms Green identified eight occupations “for which he could be considered”. Ms Green analysed the physical demands of each occupation and, taking into account the medical opinions, considered whether Mr Heenan was capable of performing the duties of each occupation.
35 Ms Green’s conclusion was that, “Based on the medical opinions provided the analysis of the above occupations and the physical demands of the core duties, it is considered that due to Mr Stephen Heenan’s current physical capacity, he is unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future”.
36 In a subsequent report, Dr Yong considered Ms Green’s report. He agreed with Ms Green that the following occupations were not suitable for Mr Heenan:
· tyre fitter;
· trades assistant – motor mechanic;
· cleaner – commercial;
· general farmhand;
· labour (general);
· truck driver.
37 In relation to two of the occupations, Dr Yong said, “These would require individual assessment to determine whether they comply with the restrictions” previously considered appropriate by Dr Yong for Mr Heenan. The occupations were:
· hand packer;
· factory process worker.
38 In cross-examination, Ms Green gave evidence of the physical requirements needed to perform the duties of checkout operator (a lot of manual handling and prolonged standing); a purchasing or supply officer in an office or warehouse (contacting suppliers by telephone or via computer, assisting with manual handling in a warehouse, prolonged sitting and computer work in an office); solar sales consultant (if by telephone, would require prolonged sitting and “success rate” would be a key performance indicator; if at a retail outlet, setting up displays and heavy lifting would be required; door to door sales would have other difficulties).
39 Ms Green indicated that from her own experience she was familiar with the tasks of all of the roles considered and she would rule them out because of Mr Heenan’s reported medical restrictions. Ms Green also pointed to the difficulties Mr Heenan would have as an “entry level” employee without previous experience. At such a level, particularly with clerical roles, employees are assigned a limited number of tasks usually performed at a desk or on the telephone. There would not be the autonomy Mr Heenan would need in order to alternate between sitting and standing.
40 Ms Green impressed me with her evidence. Her report was comprehensive, particularly her discussion of Mr Heenan’s physical restrictions and how they would affect his performance of the tasks involved in the various jobs considered. In her oral evidence, Ms Green demonstrated the depth of her experience and knowledge of the duties of the relevant occupations.
41 Dr Yong is a medical practitioner. He was able to carry out his own physical assessment of Mr Heenan, however his conclusions were far more optimistic than those of Mr Jones, Mr Brearley and Mr Brownbill. His reports contain little analysis or reasoning. Mr Jones concluded that Mr Heenan would be able to perform the tasks of a purchasing and supply logistics clerk. He gave no reason for his conclusion. I am persuaded by Ms Green’s evidence that the position, whether in a warehouse or office setting, would be unsuitable.
42 Mr Jones suggested that three other positions may be suitable if their duties were modified – a spare parts interpreter, if Mr Heenan could enter as a “trainee”; customer service, if there was no lifting as would be required in merchandising; and office cashier, if that role could be separated from the duties of a checkout operator. I do not consider however that these redefined roles would satisfy the definition of suitable employment.
43 If suitable employment is beyond the physical capabilities of Mr Heenan for the foreseeable future, he has no present earning capacity and therefore satisfies the statutory test. Even if he had the limited capacity anticipated by Mr Jones, it is unlikely that part-time employment in a further restricted occupation would return more than 40% of Mr Heenan’s pre-injury earnings.
Pain and suffering
44 If Mr Heenan is entitled to leave to commence a proceeding for loss of earning capacity damages, the leave in respect of pain and suffering damages would automatically follow. In any event, I would consider that the evidence of the consequences to Mr Heenan of the impairment to his back might fairly be described as “very considerable”.
Orders
45 Accordingly, Mr Heenan will have leave to commence a proceeding for both loss and earning capacity and pain and suffering damages arising from the back injury suffered in the workplace accident on 4 February 2009.
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Certificate
I certify that these 11 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 28 September 2012.
Dated: 28 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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