Hepburn v Mercy Public Hospital Inc
[2014] VCC 1417
•19 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02663
| SANDRA HEPBURN | Plaintiff |
| v | |
| MERCY PUBLIC HOSPITAL INC | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 September 2013 | |
DATE OF JUDGMENT: | 19 September 2014 | |
CASE MAY BE CITED AS: | Hepburn v Mercy Public Hospital Inc & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1417 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left hip – injury to the right hip – loss of earning capacity – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Stone v Jarvis [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr N Dunstan | Slater & Gordon Ltd |
| For the Defendants | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant, and due to the nature of her employment with respect to aggravation of osteoarthritis of the left and right hips between 2001 and 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left hip, plus the right hip; alternatively, bilateral impairment of the hips.
5 The plaintiff relied upon two affidavits, sworn 27 January 2012 and 28 August 2013, and gave viva voce evidence. She was cross-examined. In addition, the plaintiff relied upon a vocational assessment by Ms Katrine Green, psychologist, who was also cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
The Plaintiff’s case
15 The plaintiff’s case for serious injury is advanced in alternative ways, viz:
(a) Work-related aggravation of left hip osteoarthritis resulting in permanent impairment of the left hip with consequences including altered gait and aggravation of arthritic changes in the right hip and low back;
(b) Work-related bilateral aggravation of osteoarthritis in the hips, resulting in permanent impairment of each as the one body function, with consequences including altered gait and aggravation of arthritic changes in the low back;
(c) Work-related aggravation of osteoarthritis in each hip as a separate injury, resulting in permanent impairment of each hip –
(i) with consequences of the left hip, including a degree of altered gait and aggravation of arthritic changes in the low back;
(ii) with consequences of the right hip, including shortening of the right leg, very substantially altered gait and very substantial aggravation of degenerative changes in the low back.
16 The plaintiff was born in September 1957 and was employed as a cleaner and personal care attendant at the Mercy Public Hospital between 2001 and 2010. It would appear that it was common ground that the job was physically demanding, involving long hours on her feet and a certain amount of bending, stooping and lifting. It was also common ground that the nature of the employment aggravated osteoarthritis in both hips, requiring left and right hip replacements on 1 September 2009 and 27 October 2010 respectively.
The Defendants’ submissions
17 The defendants, in a methodical and fair submission, admitted that the plaintiff had suffered separate work injuries to her hips, but which had no causal connection to each other. As such, the defendants submitted the effect of each separate work injury to her hips cannot be aggregated when considering whether the plaintiff has the requisite pain and suffering and/or economic loss consequences.[2]
[2]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraphs 23-27
18 Defence Counsel also submits that the plaintiff suffers from a lower back condition which is partly degenerative and partly related to work aggravation caused by the performance of her work duties generally, and by a specific work incident on 22 January 2010. He submits that the lower back condition is not causally related to either of the claimed hip injuries and it cannot be aggregated with either injury, and its effect has to be disentangled both in respect of pain and suffering and economic loss.
19 In any event, the defendants make the following admissions:
(a) They accept that following her right hip replacement surgery, the plaintiff was left with a right leg length discrepancy which had been a cause of a slightly altered gait;
(b) That the slightly altered gait has been a cause of an increase in the symptoms of the plaintiff’s lower back pain, but only when walking for prolonged distances, with the altered gait and the leg length discrepancy having no effect on the underlying condition.
Analysis
20 Given that the defendants’ approach to the claim is aligned with the third alternative postulated by the plaintiff, it seems appropriate to analyse the claim on that basis at first instance.
The left hip
21 The plaintiff gave evidence that she started having left hip problems in May 2008.[3] At that time, or thereabouts, she also had some niggling pain in the right hip which was intermittent.[4] In the period leading up to her surgery for left hip replacement on 1 September 2009, the plaintiff had been certified as fit for modified duties for 35 hours per week.[5]
[3]Exhibit B
[4]Transcript (“T”) 107, L10-21; L26-29
[5]Exhibit 18 – Defendants’ Court Book (“DCB”) 115-116
22 The plaintiff gave further evidence that her left hip pain improved significantly after the surgery.[6] The treating surgeon, Mr Stoney, confirmed in his report dated 25 June 2013, that the plaintiff’s surgery went very smoothly and her leg length was restored at the end of the procedure.[7] Upon review on 6 October 2009, Mr Stoney noted the plaintiff had little in the way of pain, and seemed to be making a good recovery from the surgery.[8]
[6]T107, L30-31
[7]Exhibit M – Plaintiff’s Court Book (“PCB”) 92
[8]Exhibit M
23 Thereafter, for the period 19 October 2009 to 14 November 2009, Mr Stoney certified the plaintiff as fit for modified duties limited to 12 hours per week. He also expected her to be fit for normal duties from 15 November 2009.[9]
[9]Exhibit 18 – DCB 117
24 Thereafter, for the period 15 November 2009 to 4 December 2009, the plaintiff’s treating general practitioner, Dr Hargreaves, certified the plaintiff as fit for modified duties for 15 hours per week. She also received similar Certificates of Capacity for the period 5 December 2009 to 2 February 2010.[10]
[10]Exhibit 18 – DCB 119-120
25 The plaintiff herself stated she increased her hours to about 20 hours per week from about January 2010. At this time, she was also having pain in her right hip because of the work that she was doing.[11]
[11]T108, L8-30
26 Upon review on 24 November 2009, Mr Stoney considered the plaintiff had made an excellent recovery from the surgery but that she was experiencing a little bit of intermittent soreness, but nothing too severe. At that stage, he was pleased with the result, and expected her to return to normal duties in due course as she recovered. He did not feel there would be any significant long-term restrictions for her.[12]
[12]Exhibit M – PCB 93
27 From the period 1 February 2010, Dr Hargreaves certified the plaintiff as fit for full hours but with restrictions.[13]
[13]Exhibit 18 – DCB 121
28 Thereafter, from 30 March 2010, Dr Hargreaves certified the plaintiff fit for modified duties for 40 hours per week.[14]
[14]Exhibit 18 – DCB 123
29 The defendants submit that from about 5 May 2010, the plaintiff was experiencing pain in her right hip and groin which is to be viewed independently from the left hip pain. The defendants further submit that the plaintiff had virtually regained full-time work capacity, albeit for modified duties by this time. Fairly, defence Counsel concedes the plaintiff was still suffering from a slight limp favouring her left lower limb at this time.[15] Mr Williams recorded the plaintiff’s complaint in respect of her left hip at that time as getting a little pain in the upper buttock region. Subjectively she felt her leg was a little longer.[16]
[15]Mr Robin Williams, consultant orthopaedic surgeon, 17 February 2010 – Exhibit 7 – DCB 3
[16]Exhibit 7 – DCB 3; 11
30 From about 5 May 2010 until the right hip replacement surgery in late October 2010, the plaintiff suffered a reduction in work capacity, which the defendants submit relates to the right hip and is not to be aggregated with the left hip injury, which had left the plaintiff fit for full-time modified duties. In support of this contention, it cites the certificate of Dr Hargreaves for the period 24 July 2010 to 21 August 2010 as being fit for 37.5 hours per week.
Consequences of left hip injury
31 The plaintiff submits that in the aftermath of the left hip surgery, the plaintiff placed reliance on her right side in order to protect her left as a compensatory measure, and with this compensation, the plaintiff experienced progressive right hip symptoms.[17] There is support for this proposition from Dr Hargreaves.[18]
[17]T103
[18]Exhibit K – PCB 74
32 In any event, the plaintiff has sworn that she needed to take painkillers after the left hip surgery and it is clear that she was unfit thereafter for the full-time pre-injury duties, but only fit for modified duties as referred to above. Further, after this surgery, she stated she developed more severe left hip and low-back pain, and also right hip pain.[19]
[19]Exhibit A – plaintiff’s affidavit sworn 27 January 2012, paragraph 5
33 After the second lot of surgery, the plaintiff swears that she was left with pain in both hips, with constant pain in the right hip and pain “most of the time in [her] left hip, although [the] left hip is pain free occasionally”.[20]
[20]Exhibit A – plaintiff’s affidavit sworn 27 January 2012, paragraph 6
34 Accepting the defendants’ submission that either hip injury only affects the back condition on a temporary basis, it would appear that although the symptoms are temporarily exacerbated from time to time, the left hip injury is a permanent impairment and, accordingly, there will be a permanent tendency to exacerbate symptoms in the back from time to time.
35 Most tellingly in this regard, it is common ground that the plaintiff will require further revision surgery to the left hip approximately fifteen years after the first surgery. In those circumstances, it appears to me that the consequences, on a pain and suffering basis, can be described as “more than significant or marked and as at least very considerable”.[21]
[21]See Stone v Jarvis [1992] 2 VR 129 at 148
Right hip injury
36 The defendants submit, and I accept, that in approximately May 2008, the plaintiff began to feel niggling pain in the right hip.
37 The plaintiff also states that the pain in her right hip was present when she increased her hours to 20 hours per week in January 2010 because of the work that she was doing. This pain continued with her work duties into the period of February 2010 to May 2010.[22] The work duties that she was performing included bending and washing walls, and it is whilst performing this duty on 5 May 2010, the plaintiff felt a quantum increase in her pain in the right hip and groin. The defendants submit this is an acute incident on 5 May 2010 independent of the general nature of the work duties. The plaintiff, on the other hand, submits that this is merely one of the episodes in relation to a gradual process injury due to the nature of the work, rather than an independent cause of action. In support of this contention, the plaintiff notes that the nature of the report of injury is not analogous to a traumatic event such as a fall, but in fact what is reported is increased right hip problems experienced in the course of performing work duties which were part and parcel of the ordinary taxing work tasks she had been performing over time. Another example of such a developing injury, it is submitted, occurred on 26 April 2009, when the plaintiff presented to the Werribee Mercy Hospital for evaluation and management of increasing right hip pain following injury sustained to this joint in 2008.[23] I accept this submission, and consider that the general nature of the duties of the plaintiff, certainly from the first onset of symptoms in 2008 and leading up to the need for the right hip replacement in 2010, is in fact the work-related injury which results in impairment of the right hip.
[22]T108, L8-30
[23]Exhibit J – PCB 71
38 Certainly by 22 July 2010, the defendants’ orthopaedic surgeon, Mr Kudelka, noted that the right hip which had been troubling the plaintiff for about two years to a minor extent, had now become a significant source of pain.[24] On this occasion, Mr Kudelka concluded that the plaintiff had aged-related degenerative changes in both hips, both of which had been aggravated by the physical nature of her work as a personal carer and cleaner which she commenced in 2001.[25]
[24]Exhibit N – PCB 110
[25]Exhibit N – PCB 110-111
39 The defendants submit that Mr Kudelka’s opinion is prima face evidence that there are two separate injuries, as distinct from the right hip injury being a sequelae to the left hip injury. I shall proceed on the basis that this submission is correct.
40 It would appear that just prior to the right hip surgery, the plaintiff’s hours had been reduced to 9 hours per week on modified duties, although she felt she was capable of performing more hours.[26]
[26]Defendants’ submissions, paragraph 46
Consequences of right hip injury
41 It is common ground that the plaintiff has not returned to any work since the right hip replacement. It is also accepted that she has been left with a left and right leg length discrepancy which has been a cause of an altered gait. It is also accepted that the gait alteration has been a cause of an increase in symptoms of the plaintiff’s lower back pain as already recited.[27] Further, the plaintiff is likely to come to revision surgery for the right hip in the future.
[27]Defendants’ submissions, paragraph 62
42 The plaintiff clearly has an altered gait since the second operation, which was demonstrated in Court.[28] Further, the gait is not altered by the provision of orthotics.[29]
[28]T131, L26-31
[29]T131, L10-21
43 Further, the plaintiff complains that the alteration in her gait produces pain in her back when she is walking.[30] When reviewed by treating neurosurgeon, Mr Nicholas Maartens, on 13 March 2013, he reported to the treating general practitioner:
“… I think it is important that we get the leg length discrepancy and associated scoliosis formally assessed. The leg length discrepancy is going to cause problems in the lower back and pelvis, putting the whole system out of kilter, and this really needs to be addressed possibly more aggressively, as she certainly was not wearing appropriate orthotic shoes for someone with a leg length discrepancy of this nature. … . ”[31]
[30]T126, L11-14
[31]Exhibit L – PCB 87
44 In my view, this opinion is consistent with the plaintiff complaining of an increase of symptoms in her back when walking due to the alteration of gait and discrepancy in measurement of leg length.
45 Further, Mr David de la Harpe, treating orthopaedic surgeon, stated to the general practitioner that the plaintiff, on examination, had an unusual gait which was possibly related to the hip replacements; however, “it almost appeared to be a mildly spastic type of gait”.[32]
[32]Exhibit L – PCB 88
46 Further, it was put to the plaintiff in cross-examination that Mr Patten, orthopaedic surgeon, had encouraged her to recommence using a walking stick in her left hand while she regained a more normal gait pattern.[33]
[33]T119, L28
47 The plaintiff, for her own part, relates that she is left with pain in both hips: constant pain in the right hip and pain most of the time in the left hip. The degree of pain varies. It is worse if she sits for too long and stands in one spot for too long, or if she engages in more strenuous activity. This pain is eased by lying down, taking painkillers and resting. She states that she cannot squat or crouch and if she gets on her hands and knees, she may need help to get up. If she sits on hard chairs, her right hip pain in particular worsens, and she tries to use a pillow or a cushion. Turning quickly causes her sharp hip pain and she has a catching sensation in her hips when she bends. She further relates that she has difficulty sleeping and if she rolls on either side, she wakes up and cannot get back to sleep.
48 The plaintiff continues to take brufen, Panadol Rapid and Tramadol daily. She also sees her general practitioner regularly and does exercises at home on a daily basis.
49 In my view, the above history is basically uncontradicted in cross-examination, and I accept the plaintiff as a truthful witness. Further, given the future need for operative relief on the right hip, it is my view that the plaintiff has satisfied the “very considerable” test, as she has with the left hip.
Economic loss consequences
50 If one accepts the defendants’ submission that the plaintiff was essentially fit for full-time modified duties after the left hip operation, the question is whether she has any retained capacity following the right hip operation, and if so, to what extent.
51 Taking into account that the right hip alteration in gait produces increased symptoms in the back without altering the underlying condition, it would appear to me that the appropriate measure of any loss of incapacity is the increased incapacity following the right hip operation over and above the ability to work in full-time modified duties following the left hip operation.
52 The plaintiff, for her own part, insists that she has only a limited capacity to attend and remain at work on a regular basis because of the pain in her hips and the symptomatic increase in her back, as already described, on account of those injuries.
53 Doing the best I can to assess the plaintiff’s retained capacity through the prism of the right hip disability superimposed upon a pre-existing left hip disability, together with a symptomatic increase in symptoms in the back, I have concentrated on the methodical cross-examination of the plaintiff with respect to capacity. She agreed that she had applied for a variety of jobs in recent times, including clerical assistant, switchboard operator, customer service, childcare assistant, food services assistant and a variety of café positions.[34] She was asked if she had been hired for the roles, whether she would be working, and she replied:
“As long as I can have probably one or two days at three hours for those two days, probably. But I couldn’t work eight hours a day. Have trouble doing the chores at home and the problem I have with doing them, no, there’s no way known I can work eight hours a day.”[35]
[34]T24, L15-31
[35]T26, L22-28
54 The plaintiff further agreed that she was capable of doing her housework but “it takes all day”.[36]
[36]T26, L31
55 Further, she stated that if she attempted a job at say 30 hours a week, she said:
“… I’d probably try it to see how I went but I know in myself I wouldn’t last more than one or two days.”[37]
[37]T29, L16-18
56 The defendants persisted in cross-examination,[38] but the plaintiff was steadfast in her insistence that she could only handle light work for one or two days. In my view, this is not inconsistent with the opinions of the medical practitioners who have seen the plaintiff since her second operation, but in any event, I accept her evidence in this regard. Further, in my view, there is nothing inconsistent in this finding with the evidence of vocational psychologist, Ms Katrine Green.
[38]T31, L11-20
57 In the circumstances, I consider that the inference that working one or two days a week of light duties would translate into a loss of earning capacity of at least 40 per cent, and leave will be granted to the plaintiff to issue proceedings for economic loss, on account of the right hip injury. For the reasons already stated, leave will be granted to issue proceedings for pain and suffering with respect to both hip injuries.
58 I will hear the parties as to any consequential orders.
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