Hicks v Victorian WorkCover Authority
[2015] VCC 303
•12 March 2015
| IN THE COUNTY COURT OF VICTORIA AT WODONGA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06473
| VIVIEN LORRAINE HICKS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 11 March 2015 | |
DATE OF JUDGMENT: | 12 March 2015 | |
CASE MAY BE CITED AS: | Hicks v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 303 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(38)
Judgment: Leave granted to the plaintiff to issue proceedings at common law for damages for pain and suffering and loss of earning capacity on account of injury suffered in the course of his employment with the employer on 30 August 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr S Carson | Slater & Gordon Ltd |
| For the Defendant | Mr P Jens SC with Mr J Batten | Wisewould Mahony |
HIS HONOUR:
1 In this matter, Senior Counsel for the defendant has conceded that the plaintiff has established that she has suffered a serious injury for pain and suffering purposes, on account of an injury suffered by her in the course of her employment on 30 August 2010. I accept Counsel’s submission that it was reasonable, in all the circumstances, to contest this matter, but with the evidence that was adduced over the last day or two, the issue has become clearer and I congratulate the defendant for conceding this matter and I also find it reasonable that they should continue to contest whether or not the plaintiff has discharged the onus of proof with respect to economic loss.
2 On account of this admission and by s134AB(38)(c) of the Accident Compensation Act 1985 (“the Act”), the impairment must have consequences in relation to 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 hearing as being “more than significant or marked”, and as being “at least very considerable”.
3 Further, 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.
Background
4 The plaintiff was born in June 1962, is aged fifty-two and is married. She completed Year 11 at high school and thereafter, worked as a receptionist or secretary with a number of employers. She also joined her husband as a farmer and assisted him in working on various farms, milking cows, feeding calves, harvesting hay and doing other general farm and animal-husbandry work.
5 In July 2008, she was employed as a legal secretary for the employer. Her duties included general secretarial support and typing, as well as running VOCAT files, and she worked full-time.
Compensable physical injury
6 The plaintiff was provided with a workstation immediately outside the office of the partner for whom she worked. The workstation was an alcove with a continuous desk. She sat on a swivel chair with wheels. The chair was facing one of the corners of the alcove, on which she had her computer. Slightly behind her, and to her right, was a printer situated on top of the desk. The computer tower was situated on the floor to her right side, between herself and the printer. Underneath the desk were cupboards on both her left and right side.
7 The plaintiff found the workstation cluttered and not satisfactory. In addition, she found the workstation was uncomfortable. The biggest difficulty, she stated, was that she had to twist to her right and stretch out of her seat in order to collect printed documents from the printer. She estimated that she had to repeat this movement to collect documents “dozens of times a day”.
8 Some days prior to Monday, 30 August 2010, the plaintiff experienced some minor back pain, which she demonstrated in the witness box, as being in the upper left quadrant between her shoulder blades. This pain had been sustained on her farm over the previous weekend. She did not require any immediate medical treatment, but she can recall telling her office manager on the Monday morning that, as a result of this injury, she would need some help to operate the compactors.
9 During the course of the morning on 30 August 2010, the plaintiff sustained a lumbar back injury as she was twisting and reaching in her normal fashion to take documents from the printer. She recalls that as she reached out to grab the documents from the printer, she experienced a sudden onset of pain in the lower back. She swore that she had never experienced anything like this before. The back pain did not improve over the next hour or so, and she reported her injury to her employer.
10 In the Employer Claim Form dated 14 September 2010,[1] the defendant stated that the injury was reported to the employer on Monday, 30 August 2010 to a Mr Martin and to a Mr Faram. Thereafter, the plaintiff attended her general practitioner, Dr Brun, on Wednesday, 1 September 2010. She gave a history to him of the two injuries, as already outlined. She was prescribed some medication and referred for physiotherapy. She continued the physiotherapy until approximately July 2012.
[1]Exhibit C
11 A couple of weeks after sustaining her injury, she returned to work on restricted duties and reduced hours. She started working four hours a day. She found the work difficult and painful. She had, however, been able to build up her hours to full-time, but remained on restricted duties. She swore that in this period, other employees had to take up some of her duties and that she perceived that there was some friction caused on account of this. Further, following Christmas of 2010, another staff member was put on to take up some of her duties.
12 Accordingly, in or about January 2011, she resigned from her employment. She said that there were two reasons why she resigned. First, she found that it was no longer a pleasant working environment and her impression was that she was not really wanted there any longer. Secondly, she said she was not coping physically with the work and she thought it best to try and rest and recover in the hope that her back condition would improve. She said that she was assisted in this regard by a grant or an advanced inheritance from her mother which enabled her to remain unemployed for some seven months. It was in this time that her work around the farm was severely curtailed.
Return to work
13 Thereafter, in July 2011, she secured part-time employment as an administrative officer for the Centre of Rural Health Section at the Rural Health Academic Centre at the University of Melbourne campus in Shepparton. She mainly did secretarial work and did four days a week for eight hours, which was approximately 32 hours per week.
14 It is common ground that, as evidenced by her income tax returns for the financial years 2010 and 2012, that if this was the true measure of her retained capacity for work, she would not discharge the onus of proof pursuant to sub-clauses (e) and (f) of s134AB(38) of the Act.
15 With respect to this nearly twelve-month period of work, the plaintiff swore that she found the work physically demanding and she became increasingly concerned about her ability to continue with those work duties due to back pain. She often felt that she was unable to cope. It was during this period that she wrote to her employer and applied for a lighter job as a result of the back pain. This application was unsuccessful. In any event, her contract was terminated in June 2012 in accordance with the original agreement.
The Plaintiff’s evidence
16 In her affidavit sworn 25 July 2013,[2] the plaintiff swore:
“I believe I have some capacity to work, but I would require a very understanding employer who would allow me to rest frequently during the course of the day. I believe the most I could undertake would be part-time work of 20 hours a week due to my ongoing back and leg symptoms.”
[2]Exhibit C at paragraph 29
17 Thereafter, the plaintiff embarked on a number of measures to retrain herself back into the workforce. She embarked upon an online course of an Advanced Diploma in Graphic Design and Advertising with a view to developing web designs.
18 The plaintiff stated in this affidavit[3] that she continued to experience lower back pain every day, although the pain did vary in its intensity. The more physical activity she did, the more painful the back would become. At times, she said her back was so painful she had to lie down to rest. She stated:[4]
“In addition to lower back pain, I experienced pain down both my legs, my right legs usually being worse than my left leg.”
[3]At paragraph 35
[4]At paragraph 37
19 The plaintiff swore that her sleep is affected as a result of the pain in both her lower back and in the legs and she wakes every night in pain.[5] She is restricted in her housework and can no longer do vacuuming. At that time, as a result of her back pain, she had to take Lyrica three times daily at a dosage of 75 milligrams for each tablet, and was also taking Panadol Osteo six times daily for pain relief.
[5]At paragraph 39
20 In her second affidavit, sworn 24 February 2015, she swore[6] that, although she stopped working for the University of Melbourne when the contract was not renewed, she did not believe that she would have been capable of continuing in this role in any event and certainly did not believe that she would be capable of doing it now.
[6]At paragraph 4
21 The plaintiff swore:[7]
“I would much rather be working if I could as I am someone who likes to keep busy. I would also like to be helping out my husband as we are struggling financially and currently living in a caravan. I find it frustrating being at home and feel useless, however, I do not see how I could hold down a job in light of the fact that I struggle with prolonged sitting, standing, bending, lifting, walking and concentration. I also suffer from negative effects of medication which make me a bit dizzy and unstable. I think I would be a very unreliable employee. I do not know who would hire me in my current state.”
[7]At paragraph 6
22 The plaintiff swore that when she was engaged in the Advanced Diploma in Graphic Design and Advertising, she found that she struggled too much with the computer work whilst sitting, had poor concentration and was unable to keep up.[8] She had also attempted to start a Bachelor of Information Technology; however, she had to stop after about a month as she again struggled with the sitting, computer work and the concentration required.
[8]At paragraph 6
23 Further, she confirmed[9] that she was still taking Lyrica three times a day and Panadol Osteo six times a day. She was also taking an antidepressant. She stated:[10]
“For example, I’ve had to modify the way I get dressed as I find it hard to bend down and put on my shoes and socks. I also have to do tasks very slowly and with lots of breaks which is very unlike the way I used to be. For someone who used to be always on the go, my life has really been turned upside down as a result of my injury.”
[9]At paragraph 12
[10]At paragraph 13
Medical evidence
24 Shortly after commencing work with the University of Melbourne, the plaintiff suffered an increase in symptoms which led to a referral to neurosurgeon, Mr Maartens, on 6 January 2012. He had previously seen her twelve months ago. He stated:[11]
“Since last seeing her, symptoms have become slightly worse, particularly the dysesthesia in her legs. Six months ago, she recommenced working and, as a consequence, has experienced low to moderate constant lower back pain. The latter has restricted her from one of her favourite pastimes of horse riding quite significantly.”
[11]PCB 34
25 On examination, Mr Maartens noticed features of a peripheral neuropathy which he could not elicit when he saw her a year ago. He was of the opinion that there was both a discal and a zygapophyseal component to her pain, with pain on flexion more than extension and also pain on palpation of the lower lumbar facet joints bilaterally, particularly on the left-hand side.
26 Re-examining an MRI scan that had been taken a year earlier, Mr Maartens stated that the plaintiff did not have a clear identifiable source of her pain, but that there were degenerative changes in the lower three lumbar discs, with annular tears and possibly some facet joint degeneration at L5-S1 on the left-hand side.
27 The plaintiff was also examined for the defendant by general surgeon, Mr Shannon, on 27 August 2012. On examination, he noticed that she had minor spasm on right rotation and that her left ankle reflex was absent, despite reinforcement, and that the right ankle reflex was normal. He considered that the diagnosis was one of lumbar disc degeneration with lumbosacral disc protrusion. He felt that the condition was unlikely to resolve and her back will be vulnerable to further injury. He considered that her absent left ankle reflex was certainly consistent with a lumbosacral disc lesion. He considered that she may have had previous degenerative change but this was asymptomatic and a reliable apportionment therefore could not be made.
28 Thereafter, the plaintiff was seen by specialist in pain medicine, Dr B A Todhunter, on 15 May 2013. He took a history that she described burning pain in the lower back and pins and needles in her legs in a “non-dermatomal distribution”. However, he also noticed that she had never returned to the type of work that she was doing previously, and his provisional diagnosis at that time was “mixed mechanical and neuropathic back and leg pain”. Further, he stated:
“She’s trying to get skills so she can work from home to pace herself better as she doesn’t feel she can compete in the workplace generally. I think that’s a reasonable approach.”
29 He also recommended a caudal epidural injection, which apparently was not proceeded with.
30 The plaintiff was then seen by specialist occupational physician, Dr James Rowe, on 11 September 2013. He reported that the MRI scan dated 29 January 2011 stated that there was a central disc protrusion at L5-S1 with some facet joint narrowing and it was affecting the traversing S1 nerve roots. He felt that clinically, she had an L5-S1 disc protrusion affecting the right S1 nerve root. He considered that because of this injury, she was precluded from going back to work to her former position as a legal secretary but that she did have a capacity for employment. However, he did not think that she had the capacity to go back to normal full-time work. Eventually, with retraining, she should be able to work part time and she should be able to pursue her then present course.
31 The plaintiff was then examined by neurosurgeon, Mr D’Urso, on 7 August 2014. On examination, he found that her reflexes were diminished, yet symmetrical, and he was of the opinion that the incident in the workplace on 30 August 2010 precipitated the onset of symptoms of the back pain which had consisted of an aggravation of an underlying degenerative condition of the spine and may have also contributed to annular tears in the lumbar spine at the L3-4, L4-5 and L5-S1 levels. He set out a number of restrictions concerning her work performance and considered that the restrictions would not preclude her from performing secretarial duties. He thought that she would have capacity at least for–
“… part-time employment and possibly full-time employment, depending on a structured rehabilitation programme and return to work programme.”
32 Further in his report he stated:
“With a structured rehabilitation programme, vocational assistance and retraining I would expect that Vivien should have capacity to return to at least part-time office-based activity in the foreseeable future.”
33 The plaintiff was next seen by orthopaedic surgeon, Mr Michael Dooley on behalf of the defendant on 27 August 2014. On examination, he noticed tenderness of the lower lumbar region. He also found that the ankle reflexes were symmetrically reduced. He considered that the work-related episode had aggravated underlying degenerative disc disease of the low lumbar spine. He thought, at that time, she would not be able to carry out regular heavy physical work or work that involved a lot of lifting, bending and twisting. She had a physical capacity to carry out light physical work and clerical duties. Although he had been asked to specify the duration to which she would be able to perform these duties, he did not give a specific time period. Defence Counsel asks me to infer that he must have considered that she had the capacity for full-time work, whereas plaintiff’s Counsel submits that the absence of setting out a duration does not assist the defendant. I am unable to make an inference either way as to what Mr Dooley’s opinion was as to the duration that she would be able to carry out light physical work, other than that light physical work must have been restricted by the pain that she was suffering.
34 The defendant also had the plaintiff examined by consultant occupational physician, Dr Philip Mutton, on 29 August 2014. On examination, he found that she was tender over the spine from L3 through to the sacrum, only in the midline. Ankle jerks could not be elicited. Knee jerks could only be elicited with reinforcement. Paradoxically, he stated: “Ms Hicks presents with no significant abnormal clinical findings at this time”, despite the clinical finding of the ankle jerks not being elicited, which was also in contradistinction to earlier medico-legal examiners. He found, however, there was no evidence of a functional component or psychological reaction and that she presented as “quite genuine”. She also presented with “chronic low back pain” but found this “difficult to verify”. In any event, he stated:
“Based on presentation and her reported tolerances I would expect that she would be able to work full time and certainly half time, five days of four hours.”
35 More recently, the plaintiff was examined by occupational physician, Dr James Rowe, on 5 February 2015. He took a history that she was still taking Lyrica, 75 milligrams three times a day, and Panadol Osteo, six a day, and ANDEPRA, an antidepressant. He stated, on examination: “The left ankle jerk was present, that is, it had returned.” However, he also found:
“There was some loss of sensation about the lateral toes of the right foot ... straight leg raising was limited on the right to 70 degrees whilst there was vague change of sensation about the lateral toes, that is, the S1 nerve root distribution."
36 As to her functional capacity he stated:
“The result of the injury to the back and her impairment is that she is limited in what she can do. She has not worked since I saw her last. She is a legal secretary. She would have trouble sitting for long periods of time. She could work. She has a part-time capacity for employment as long as it does not involve excessive lifting, prolonged sitting or standing. It is likely this will be a permanent situation.”
37 He considered that she may have a partial capacity for employment, “say about half-time”.
38 Finally, Dr Mutton examined the plaintiff again on 19 February 2015. On this occasion, he was provided with the MRI scan of 29 January 2011 which he recited at page 4 of his report, to be evidence of discogenic pain at L3-4, as well as L4‑5 and that there was a small broad-based posterior disc protrusion at L5‑S1. He did not specifically comment on the ramifications of this MRI scan. In any event, on examination, he stated:
“I could elicit left and right ankle jerks. On this occasion, they were present but weaker on the left.”
39 In any event, his opinion was that the plaintiff could return to her pre-injury duties as a legal secretary. This opinion was based on her skill base, her current presentation in terms of her musculoskeletal condition and the medication that she was taking. However, he stated that, on a physical basis, she suffers from chronic low back pain, although it was still difficult to “verify and to establish”. He did state, however:
“She has some supportive evidence that there may be some radicular symptoms in terms of pressure on nerve roots resulting in some tingling in the lower limbs. She certainly has disc desiccation at at least three levels and possibly tears at those levels. Under these circumstances, she does require restrictions and these would generally be a 10-kilogram weight limitation, avoidance of pushing, pulling and twisting motions and particularly bending at the waist. Her symptoms relate entirely to the lower back and the lower limbs … therefore the issue is her ability to work full-time hours. Based on her presentation I would suggest that she would be able to work full-time hours in a relatively light position as a legal secretary.”
40 He thought that the overall diagnosis was still one of aggravation of pre-existing lower lumbar disc degeneration. He disagreed with the proposition that the plaintiff could not work full-time hours.
Findings
41 As indicated to both Counsel during addresses, I find the plaintiff to be an honest historian, who, prior to suffering this injury, had worked hard with her husband in a joint enterprise of building up their farming asset, supplemented by her income as a legal secretary. The concession fairly made by the defendant that the plaintiff suffers from a serious injury for pain and suffering purposes must mean that there is a permanent impairment of the spine which will restrict her in a serious way for many activities, including work.
42 I accept that on her return to work with the employer, that she required assistance from other employees to carry out her tasks and that in the New Year of 2011, another employee was added to the staff to take up some of her work. I accept that she was struggling with this employment when she resigned in or about January 2011.
43 In the year that she worked from July 2011 to June 2012, I accept that she was finding it difficult to cope, and that she required more treatment, particularly with reference to the neurosurgeon, Dr Maartens, and that she did apply for a lighter job during this employment. Further, I accept her subjective perception that she cannot work at all at the moment, but I consider that she would be able to perform suitable light duties up to the period certified by her general practitioner of 20 hours per week. In particular, I am impressed by her husband’s evidence, under careful cross-examination, that the financial circumstances of the family are such that they are heading for bankruptcy and that, in all the circumstances, I accept that if the plaintiff was able to work in any meaningful way she would be doing so.
44 In all the circumstances, I consider that the plaintiff has discharged the onus of proof with respect to loss of earning capacity and certificates will be granted accordingly.
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