Hoareau, Ralph v Wesfarmers Ltd
[2012] VCC 1595
•19 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04210
| RALPH HOAREAU | Plaintiff |
| v | |
| WESFARMERS LTD (formerly Coles Supermarkets Australia Pty Ltd) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2012 and 18 October 2012 | |
DATE OF JUDGMENT: | 19 October 2012 | |
CASE MAY BE CITED AS: | Hoareau, Ralph v Wesfarmers Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1595 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to lower spine – pain and suffering and economic loss – nature and extent of injury and consequences – nature and extent of plaintiff’s work capacity – attempts at return to work
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
JUDGMENT – Leave to the plaintiff to bring proceedings at common law for pain and suffering and loss of earnings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Ms A R C Spitzer | Maurice Blackburn Lawyers |
| For the Defendant | Mr P B Jens | Herbert Geer |
HIS HONOUR:
Preliminary
1 The plaintiff worked for the Coles Group (“Coles”) in various areas of its Prahran store from 1982, including in the fruit and vegetable department. His duties involved unloading pallets and required heavy and repetitive work. In December 2004, he experienced a sharp pain to his lower spine. He returned to work on modified duties, but suffered a flare up of his low back pain in 2008. His employment was terminated in 2009. He claims a range of recreational and sporting activities have been significantly affected. He has not been able to return to the workforce since 2009.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant since October 1999, and in particular, on 20 December 2004.
3 The body function said to be lost or impaired is the lumbar spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff and his treating general practitioner, Dr Kanapathipillai (“Dr Pillai”) were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, medical and radiological reports and other relevant material were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those aspects of the affidavits, reports and opinions which appear to me to be of most relevance in determining the issues in dispute. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various sections.
Relevant Background
5 The plaintiff was born in 1966 is now forty-six years of age. He commenced work for Coles when he was sixteen in 1982. He has not worked for any other employer.
6 He worked at the Coles store in Prahran in various departments but principally in the fruit and vegetable area. He worked night duty, which involved unloading pallets each night and placing stock into the store. According to his affidavit,[1] the work was heavy and repetitive.
[1]Plaintiff’s Court Book (“PCB”) 17
7 Prior to injury, he was fit and active. He played golf on a regular weekly basis[2] and enjoyed going to the races and the football.
[2]Although in evidence he was unable to say when precisely he last played before he injured his spine
8 His health was good and in particular, apart from some aches and pains which he put down to heavy work, he suffered no pain nor restrictions in his lumbar spine.
9 According to a report of Dr Horsley of July 2012, the plaintiff has a learning disability. He completed Year 11 at school but is only able to read and understand about fifty per cent of a newspaper. Dr Horsley said the plaintiff could write his name and address but was not able to write a letter. He has no car licence and does not drive.
The Injury and its Consequences
10 On 20 December 2004, the plaintiff was bending over to pick up four trays of peaches, estimated to have a total weight of 20 kilograms, from a pallet. As he straightened and twisted, he experienced a sharp pain in his lower back. The next day he went to see his general practitioner, Dr Pillai. Dr Pillai certified him as being fit only for light duties. The plaintiff had time off over the Christmas break and rested. Upon his return to work, he had back and leg pain. He was referred to Mr Pease, orthopaedic surgeon.[3] In 2005, Mr Pease referred the plaintiff for physiotherapy treatment with Ms Emma Joukadjion.[4] In April 2005, Dr Pillai referred the plaintiff for a CT scan of his lumbar spine. This showed broad-based disc bulges at L4-5 and L5-S1. There was contact and compression of the L5 nerve root.[5]
[3]There is no report from Mr Pease. It appears form the material he retired from active orthopaedic practice at some point. A letter from him to Dr Pillai was referred to in evidence.
[4]PCB 47
[5]PCB 87
11 He was also referred for a MRI scan at that time by Mr Pease.[6] This showed degenerative changes at L4-5 and L5-S1 with a left disc protrusion at L5-S1 which produced marked foraminal stenosis. There was further, a broad-based disc bulge at L4-5 producing mild stenosis.
[6]PCB 85
12 Initially, he had seven weeks away from work after the December 2004 incident. He returned on reduced modified duties in early 2005 for approximately eight weeks and then gradually returned to full time modified duties. Over the years from 2005 until early 2008, he remained working for Coles, although predominantly on light duties. He was certified by his general practitioner as able to work full time on restricted duties. Over that time he did not complain to Dr Pillai that he was unable to sustain the work at Coles.
13 In January 2008, he had a significant flare up of his low-back pain and pain to his left foot. At the time, he was stacking crates. He presented at The Alfred Hospital on 12 January 2008 and was said to be distressed by pain. He was given analgesia and crutches and referred back to his general practitioner[7].
[7]PCB 25
14 He was referred by Dr Pillai to Mr Brighton-Knight, orthopaedic surgeon who described him as having “severe left leg radiculopathy”.[8] Over time, the condition improved, although Mr Brighton-Knight considered the plaintiff had a disc herniation at L4-5 affecting the exiting L4 nerve root. There were neurological signs. In April 2008, Mr Brighton-Knight described the plaintiff as “dramatically better” compared to when he first saw him. He considered that the disc prolapse was in a phase of recovery, although he said that the MRI scan showed a large disc prolapse compressing the L5-S1 nerve root. He said it was appropriate that the plaintiff’s work duties be modified so that he was not doing any heavy lifting.
[8]PCB 37
15 Mr Brighton-Knight referred the plaintiff to Dr Selvaratnem, physiotherapist. That practitioner noted the plaintiff had “left foot drop”. He suggested a rehabilitation program, including hydrotherapy. The treatment continued until March 2009.
16 At that point, the plaintiff was informed by Coles that his employment was terminated as there were no suitable duties available. In evidence he said his work at the time gave rise to back pain. He needed to rest for a number of hours because of the pain.
17 He has not been referred for any further specialist treatment. The most recent MRI scan of the lumbar spine of 31 March 2008[9] discloses the following:
“At the L4-5 level, a broad-based disc bulge extends from the right paracentral to right far lateral region which is contacting (without displacement) the traversing right L5 nerve root and causing mild narrowing of the right L4-5 neural exit foramen inferiorly without evidence of nerve root impingement. The central canal is widely patent.
At the L5-S1 level, a large broad-based disc bulge extends from the left paracentral to foraminal region which is causing severe narrowing of the left L5-S1 neural exit foramen. The disc bulge contacts and minimally displaces the traversing left S1 nerve root within the lateral recess and flattens the exiting left L5 nerve root with likely impingement. The central canal and right L5-S1 neural exit foramen are widely patent. In addition, broad-based disc bulge/protrusion is seen extending anteriorly with associated modic type 2 changes of the adjacent vertebral body end plates.”
[9]PCB 89
18 The plaintiff, to date, has remained under the care of Dr Pillai. He has been prescribed an anti-inflammatory, Mobic, which has caused stomach problems. He takes over-the-counter Panadol on an “as needs” basis. He takes Panadeine Forte when the pain is severe. He does not like taking medication because of the side-effects. He continues to have regular hydrotherapy. He is prescribed Cymbalta, an anti-depressant.
19 He says that he has regular back pain which flares up, depending upon the activities in which he is involved. He says he is never free of back pain. He has limited capacity to sit or stand for long periods. His back condition is made worse by bending, lifting or twisting. His sleep is affected and he has difficulty getting to sleep. He has been unable to return to playing golf, which he enjoyed, and his social activities are significantly restricted.
20 He lives at home with his father, who is an invalid. He has been on Centrelink benefits for a period, and is a paid carer of his father. He says that his father is able to look after himself, although he does all the cooking and household chores. He has difficulty with the heavier chores.
21 The back pain radiates into both legs, made worse by sitting, standing or walking.
22 As stated, he has not worked for Coles since 2009. Some years ago, he completed a course involving a certificate in security operations. He only attended the course once because his back pain increased with prolonged periods of sitting. He attempted to return to work as a cleaner at a girls’ school in October 2011. He ceased work after a day or two because of ongoing back pain. He has undertaken a course in food handling/liquor, organised through a vocational service. He has undertaken one segment and is due to do a further part of the course. He was enrolled in a coffee making course and hopes to qualify as a barista. This may assist him to obtain work making coffee in a café or restaurant. According to his affidavit,[10] he believes that he could work for three or four hours a day in such work.
[10]PCB 23
23 At the present time, he sees Dr Pillai once or twice a month, depending on the state of his health. He has been diagnosed with depression. He has an exercise program and previously did Pilates. This has since ceased. He does not own a computer and has no computer skills. He does not have a driver’s licence and doubts whether he would be able to complete the written test.
24 In cross-examination, the plaintiff accepted that had he not been dismissed from his employment with Coles, he would still be working there now on restricted duties. He said that he had been looking for work over the past year. In his work with Coles over the years from 2004 to 2009, there was a lifting restriction of 4 to 5 kilograms.
25 At the present time, the plaintiff has maintained his interest in racing. He goes to a TAB in Caulfield regularly and stays for a number of hours. He walks, and does shopping for himself and his father. He visits his mother, who is in a nursing home, and takes either public transport or a taxi.
Medical Opinions
26 According to reports of the plaintiff’s treating general practitioner, Dr Pillai, the plaintiff has suffered a prolapsed lumbar disc with left sciatic compromise and depression.[11] Dr Pillai noted that he prescribed for the plaintiff Panadeine Forte for severe pain, Valium as needed, Cymbalta, 60 milligrams per day (anti-depressant) and Mobic, an anti-inflammatory as needed.
[11]PCB 36C
27 As to the plaintiff’s work capacity, he reported that he did have a qualified capacity with:
· no bending of the spine
· no lifting greater than 6 kilograms
· no twisting
· no standing for extended periods of time.
28 He said any employment should “start low and go slow”, meaning starting with less than usual hours and working up towards normal hours.[12]
[12]PCB 35, 36D
29 Dr Pillai was also called to give evidence and be cross-examined. He gave a somewhat different testimony to his report. He said the plaintiff had the capacity to work up to four hours per day in suitably restricted employment, commencing with one hour per day. There was no reference to such a reduction in his working hours in the course of his report. While I accept Dr Pillai has treated the plaintiff over a considerable period, and is well acquainted with his injury, I am unable to rely upon his evidence as to the plaintiff’s work capacity, given this change in his view.
30 As stated, the treating orthopaedic surgeon, Mr Brighton-Knight, considered the plaintiff was recovering from an acute disc prolapse in 2008. He said he would not be able to return to heavy lifting work. Mr Brighton-Knight has not seen the plaintiff for 4 years and his opinion is of little assistance.
31 The plaintiff was examined by Dr Robyn Horsley, occupational specialist, in July 2012. She received a history that the plaintiff was suffering lower back pain all the time over the winter months and at times he was pain free over the summer months. The pain was exacerbated by various heavier activities. She diagnosed the plaintiff as having suffered two injuries, one in 2004, and a second in 2008 which resulted in severe leg radiculopathy. She said he had ongoing mechanical back pain with evidence on MRI of disc herniation at L4-5 compromising the L5 nerve root. She thought the plaintiff’s symptoms were likely to persist but that he had made a “good” recovery from a significant back injury but was left with residual and ongoing disability which was significant in a person of the plaintiff’s manual work background. She was uncertain whether a course as a barista was realistic given the prolonged standing and working under pressure, he was likely to face. She said he was permanently unfit for his previous role as a stock controller or working with pallets in the fruit and vegetable department of Coles. She set forth a number of work restrictions,[13] including:
[13]PCB 55
· repetitive overreaching
· repetitive pushing and pulling
· repetitive bending and lifting
· truncal rotation
· working in awkward and confined spaces
· lifting items greater than 15 kilograms except on an occasional basis
· lifting items greater than 10 kilograms on a repetitive basis.
32 In addition, she noted the plaintiff had been out of work for three years, had poor self-esteem and suffered anxiety and depression. She noted the plaintiff had significant literacy issues. She concluded:
“I believe that he has some fitness for work, however initially, this would be on a part time basis in duties that fit within the restrictions outlined above. His opportunities for redeployment are very limited given his three years out of the workforce, his literacy issues and his current presentation.”[14]
[14]PCB 56
33 The plaintiff was examined at the request of his solicitors by Professor Richard Bittar, neurosurgeon, in July 2012. At the time, the plaintiff complained of constant lower back pain, aggravated by bending and lifting. He noted tenderness over the lumbosacral area on examination and mildly restricted movement. He noted the MRI of 2008 demonstrated a large left paracentral disc prolapse extending into the intervertebral foramen causing compression of the left S1 and L5 nerve roots. He concluded the plaintiff was suffering symptoms resulting from the lumbar intervertebral disc prolapse at L5-S1 with L4-5 possibly playing a role. He thought the plaintiff’s employment was the dominant contributing factor. As to work capacity, Professor Bittar said:
“Ralph Hoareau is permanently incapacitated for his full pre-injury duties, or indeed any other type of work that has a significant physical/manual labouring component. In theory he does have a capacity to undertake very sedentary duties part time, however it would be unlikely, considering his age, education, training and skills that he would be able to procure such a position. Furthermore, it would be very unlikely that he would be able to work in such a position in a reliable and consistent fashion in the long term.”[15]
[15]PCB 60
34 A number of reports were provided from various vocational assessors. In my view, the nature and extent of the plaintiff’s current condition and his capacity to engage in employment duties lies within the province of the medical practitioners, rather than vocational assessors. The role of a vocational assessor in applications such as this is to identify various areas of employment in respect of which the plaintiff may have some capacity, and to detail the duties involved. The capacity to undertake employment, in my view, lies outside the province of such assessors.
35 The plaintiff was examined on a number of occasions by practitioners at the request of the defendant.
36 Dr Michael Baynes, occupational physician, examined the plaintiff in 2006 and 2008. His opinion is of little assistance given the passage of time. In 2008, he said that he was hopeful the plaintiff’s symptoms would settle within six to eight weeks. He noted that there was a disc prolapse at L4-5 and that the temporary inflammation relating to that would settle. He said at the time, he did not believe the plaintiff was fit to return to his pre-injury duties nor other suitable duties.
37 The plaintiff was examined by Associate Professor Anthony Buzzard, general surgeon, in 2010 and 2011. He noted the plaintiff was suffering degenerative disc disease at L4-5 and L5-S1. He thought this disease had been aggravated by the plaintiff’s work activities. He said there were some aspects of the plaintiff’s presentation consistent with left-sided sciatica but without objective clinical evidence. He said the plaintiff should lose weight and undertake a regular exercise program. He thought the plaintiff was capable of full-time work but the situation was complicated, in that he had become a carer for his ageing father. He said the plaintiff’s employment was, by 2011, a “negligible contributing factor” to his presentation. He did not see that the injury should curtail the plaintiff’s enjoyment of life and daily activities.
38 The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, in August 2012. Mr Jones noted the plaintiff had been looking for work over the past four years and that he was able to do a range of housework, including washing, vacuuming, sweeping, cooking and cleaning. The plaintiff told him that he thought he would be able to do light duties such as retail sales or work at a checkout. He complained of varying degrees of lumbar back pain aggravated by heavier activities. He concluded that the plaintiff suffered degenerative disc disease affecting L4-5 and L5-S1 discs and, in addition, the history was consistent with an acute L5-S1 disc prolapse, causing back pain and left sciatica. He thought the plaintiff had substantially recovered from the prolapse, although was left with slight restriction of back movement, some activity-induced back pain and weakness involving the left ankle. The prognosis was for ongoing persisting symptoms at the current level with the prospect of an increase or recurrence of symptoms. He did not believe the effects of the work injury had resolved and that the plaintiff required an exercise program.
39 In terms of the plaintiff’s employment capacity, Mr Jones thought he could work as:
· an alarm, control room and surveillance monitor
· a process worker
· a product assembler (electronic)
· a call centre operator (inbound).
40 He said initially the plaintiff would be fit to resume duties four hours a day, and within four to six weeks, undertake full-time duties. He did not think the plaintiff could work as a trolley collector but could work as a barista.
41 The plaintiff was examined by Dr Andrew Miller, occupational health consultant[16], in 2008 and 2009. In his last report of 2009, he thought the plaintiff’s condition had improved from his previous examination. He noted disc lesions at L4-5 and L5-S1. He thought the plaintiff’s back injury had symptomatically improved and that he was left with a mild disability in his back with local discomfort and limitation of some movements. He was incapacitated from his pre-injury duties, but was capable of working with restrictions to avoid:
[16]His academic qualifications appear to those of a general practitioner
· lifting more than 8 kilograms
· movements of his back beyond a comfortable range
· pushing and pulling activities
· standing or sitting for more than thirty minutes.
42 He said the plaintiff did have the capacity to work as a:
· service assistant
· security guard
· customer service operator
· call centre operator
· stock clerk.
43 On behalf of the defendant, a report of Co-Work Pty Ltd, vocational assessors, was tendered into evidence. The author, Joanne Bryant, is an occupational therapist. That report identified a range of employment in respect of which the various medical practitioners have commented.
Conclusions from the Medical Evidence
44 I accept the opinion of most of the practitioners that as a result of the plaintiff’s heavy lifting in the course of his employment, he suffered a significant back injury at the L4-5, L5-S1 disc levels. It would appear likely that he had pre-existing, but asymptomatic, degenerative disease at those levels. In particular, there were specific incidents in 2004 and 2008 which led to acute episodes of pain. The episode of 2008 in particular appeared to result in sciatic pain as a result of nerve compression, in particular, at the L5-S1 disc level.
45 I accept there has been some improvement in the plaintiff’s condition after the 2008 episode, but I am satisfied that the plaintiff has been left with significant residual symptoms in his lower spine, and referred pain into the left buttock and hamstring.
46 I reject the opinion of Mr Buzzard that the contribution by the plaintiff’s employment to his current presentation is now negligible. He is the only practitioner to come to that view.
47 I further accept the opinions of Dr Horsley, Professor Bittar and Mr Jones that the plaintiff has suffered a disc prolapse, in particular, at the L5-S1 level, although accept that to some extent there has been recovery from that prolapse.
48 The real issue in contention from the medical evidence is as to the plaintiff’s work capacity. I accept the plaintiff does have a capacity for lighter restricted duties with restrictions as set forth by the various practitioners, in particular, Dr Horsley and Professor Bittar. However, given the nature and extent of the plaintiff’s injury, I prefer the opinion of Professor Bittar that that capacity is only in respect of very sedentary duties, and on a part-time basis. I reject the part of the opinion of Mr Jones, that the plaintiff has the capacity to work on a full-time basis (after a period of reduced hours) in the areas of employment to which he refers. Any employment which requires the plaintiff to remain on his feet, or in a fixed seated position on a regular basis will be difficult. The plaintiff would require breaks, and the capacity to move position regularly. This view is re-enforced by the difficulties the plaintiff has found in his attempts at return to work and the courses he has undertaken.
Conclusions
49 As stated, I prefer the opinions of Professor Bittar and Dr Horsley that while the plaintiff does have a work capacity, it is limited to very sedentary duties, and within the restrictions specified. However, that is not the end of the matter. The definition of “suitable employment” contained in s5 of the Act requires the Court to make an assessment of a range of factors, including the following:
· The nature of the plaintiff’s incapacity;
· The nature of the plaintiff’s pre-injury employment;
· His age, education, skills and work experience;
· and to disregard whether any employment is actually available.
50 Within that definition, it is therefore necessary to take into account the fact that the plaintiff has only ever worked for the one employer, and only in manual work. He has very significant limitations as to literary skills, in particular he has limited reading and writing skills. He has no computer experience or understanding. He does not have a car licence, and would only be able to attend employment via public transport. I bear in mind the plaintiff worked in full time restricted duties until 2009 with little complaint, and further that he was, at that time, and, remains able to do most of the domestic chores at home and look after his father. However, balanced against this is the pain I am satisfied the plaintiff still suffers and the restriction in movement referred to by the doctors. I found the plaintiff an honest and reliable witness and have little hesitation in accepting his account of the consequences of injury he described in his affidavit and evidence.
51 Marrying the matters to be taken into account in the definition of ‘suitable employment’, with the plaintiff’s work restrictions referred to by the various doctors, it is my view he has very little work capacity, even notwithstanding his hope of obtaining employment. I found his honest response that he thought he could work in various of employment as somewhat unrealistic. I am unable to say with precision as to the percentage reduction in work capacity caused by his lower back injury, save to say it is in excess of forty per cent, and significantly so.
52 For these reasons, the plaintiff’s application as to loss of earning capacity succeeds.
53 Having determined that part of the application, it is not necessary for me to go on to determine whether the plaintiff meets the “very considerable” level in respect of pain and suffering.[17] However, given the plaintiff’s ongoing pain and limitation, the need for medication, the effect upon his sleep, the restrictions the back injury places on his ability to stand, sit and lift, and the restriction upon his recreational and domestic activities to which I have referred, I have little hesitation in determining that the consequences of the lower back injury are “very considerable” when a comparison is made with other injuries in the range.
[17]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs 63-64
54 The plaintiff’s application in respect of pain and suffering thus succeeds.
55 I shall make consequent orders.
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