Hoyne v Victorian WorkCover Authority
[2013] VCC 1747
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-04606
| TANIA HOYNE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 November 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Hoyne v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1747 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to low back – whether the consequences of such injury are at least very considerable
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 for the plaintiff to commence proceedings to recover pain and suffering damages in respect of injuries suffered by her in the course of her employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
1 Tania Hoyne alleges that she suffered injury to her low back in the course of her employment with Nestlé Australia Ltd (“the employer”). She seeks the leave of this Court to issue a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of that injury.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Ms Hoyne’s low back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Ms Hoyne has suffered the loss of earning capacity required by s134AB(38)(b) unless she establishes, in addition to the requirements of ss38(c), that at the date of the hearing of the application she has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with ss38(e), (f) and (g).
8 Ms Hoyne submits that the pain and suffering and loss of earning capacity consequences of her injury can fairly be described as being more than significant or marked, and as being at least very considerable. The defendant denies this is so.
9 The matters in issue to be determined by the Court are:
(a)What injury has Ms Hoyne suffered to her low back?
(b)Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c)Has Ms Hoyne suffered a loss of earning capacity of 40 per cent or more when measured in accordance with ss38(e), (f) and (g) of s134AB?
Background
10 Ms Hoyne is aged fifty-one.
11 By way of education, she completed Year 10 at school and left partway through Year 11. From that time, she has worked in a variety of unskilled manual work at various factories.
12 She commenced with the employer in August 1986 as a process worker, machine operator and packer. She ceased that employment in May 2009 when she suffered low-back pain. For the last seventeen years of her employment, her duties rotated between operating a wrapping machine and the packing of products.
13 Prior to 6 May 2009, there is no suggestion that she had suffered from any problems with her low back. She appears to have led an active recreational and social life and, on any view, had a fine employment record.
14 On 6 May 2009, a conveyor belt on the machine that she was operating was malfunctioning, requiring her to pull the belt repeatedly. She developed a painful low back, worse on her right side. Her back became stiffer as the day went on.
15 Ms Hoyne reported the injury to the employer and was sent to an onsite physiotherapist, who she saw four or five times over the next few weeks. She was prescribed anti-inflammatories and painkillers. She continued at work with some difficulty. Her symptoms settled somewhat, but never disappeared.
16 On 16 September 2009, her low-back pain was aggravated when she reached across a conveyor belt. Again, she attended the physiotherapist. Her back settled. She remained at work.
17 On 14 December 2009, she lifted tubs of product, and attended to sweeping duties. She developed similar symptoms again. Following this occasion, she attended upon her local doctor, who arranged a CT scan and provided her with a certificate directing that she should only perform light duties with maximum lifting of 7 kilograms.
18 Shortly after she was advised that the CT scan had shown a disc protrusion, and she was later referred to an orthopaedic surgeon, Mr M A Khan, who arranged for an MRI scan.
19 She continued working on modified duties.
20 In May 2010, she was offered a redundancy package by the employer. At that time, I accept that she was suffering back pain and struggling to perform her modified duties. She was taking anti-inflammatory and analgesic tablets in order to stay at work. It was her belief that she had suffered a disc prolapse in her back. She deposed that she had been of the belief that continuing to work would cause further damage to her back. She discussed the redundancy offer with her partner, and decided to accept it. The package involved a payment to her of approximately $100,000 plus an allowance for unpaid sick leave, annual leave and long-service leave accrued.
21 She has not worked since May 2010. Up until then she was earning approximately $50,000 per year in her employment.
22 I accept that, but for the problems she was experiencing with her back, she would not have accepted the redundancy offer and would have continued with the employer.
Diagnosis of injury
23 On 16 December 2009, Ms Hoyne’s general practitioner, Dr Al-Tawil, referred her for a CT scan of her lumbar spine. A radiologist, Dr New, reported that at the L5‑S1 level there was a right lateral disc protrusion indenting the S1 nerve root.[4] There were no problems noted at other levels.
[4]Plaintiff’s Court Book (“PCB”) 49
24 As a consequence of that report, a number of doctors whose reports were tendered in evidence accepted that Ms Hoyne had suffered a disc prolapse at the L5‑S1 level, compressing the S1 nerve root. Alternately, it was considered that the CT scan demonstrated a basis for a diagnosis of a disc injury.
25 An MRI scan conducted in March 2010 was reported as identifying no evidence of neural compromise, with only minor degenerative changes of the lower lumbar spine.
26 A further x‑ray of Ms Hoyne’s lumbar spine in September 2012 was reported as essentially normal.
27 In February 2013, Dr Anthony Kam, a consulting radiologist, was asked to review the CT scan of December 2009. He stated that the CT images referred to showed merely minimal age-related changes at the L4‑5 and L5‑S1 facet joints bilaterally. He considered it likely that those changes would have been present prior to May 2009. He considered there was no identified disc protrusion or disc space narrowing and no indentation of the S1 nerve.[5] The only finding of note was of minimal circumferential disc bulge at L4‑5 and L5‑S1, which typically occurs because of age-related laxity of the disc annulus. Such appearances, he opined, were extremely common in adults of Ms Hoyne’s age, and were very often asymptomatic. He concluded that the images showed very minor age-related changes at those two levels.
[5]Defendant’s Court Book (“DCB”) 13
28 Counsel for the parties were in agreement that the original CT scan of December 2009 was misreported, and that there was no evidence of disc injury, disc bulge or prolapse at that time.
29 Ms Hoyne’s general practitioner, Dr Leow, considered that she had suffered from a soft-tissue lumbar strain.[6]
[6]PCB 51
30 In July 2010, Mr Khan, Ms Hoyne’s treating orthopaedic surgeon, considered that she had sustained musculoskeletal and ligamentous strain to her back, which had flared up mild, pre-existing facet joint arthropathy. He described it as an arthritic type of injury.[7] He considered there was no evidence of radiculopathy.
[7]PCB 62
31 In March 2010, Dr Michael Baynes, occupational physician, examined Ms Hoyne at the request of the defendant. His opinion is clearly based upon an acceptance of there being a disc prolapse as reported in December 2009 and is of no assistance to me.
32 In August 2011, Mr Peter Battlay, general surgeon, examined Ms Hoyne at the request of the defendant. He considered that she had soft-tissue strains in the context of early degenerative changes without evidence of a disc derangement.[8]
[8]DCB 9
33 In April 2013, Mr David Brownbill, neurosurgeon, examined Ms Hoyne at the request of her solicitors. He considered that she had soft-tissue injuries to structures about the lumbar spine with resulting ongoing mechanically-based pain; however, he was unable to provide a precise diagnosis of the origin of that pain from a neurosurgical point of view.[9]
[9]PCB 67
34 In September 2013, Mr Michael Dooley, orthopaedic surgeon, examined Ms Hoyne at the request of the defendant’s solicitors. He considered that she had mild degenerative disc disease of the lumbar spine, mainly affecting the L4‑5 and L5‑S1 levels, and that in the work episode described, she had suffered a soft-tissue injury to the lumbar spine that probably involved an aggravation of her underlying condition.[10]
[10]PCB 72
35 On the basis of the medical evidence referred to, I consider it likely that Ms Hoyne suffered a musculoligamentous strain to her lower back which is not capable of being described with further precision.
Consequences of injury
36 Dr Leow indicated that, when he last examined Ms Hoyne in mid-2013, she had a generally good range and rhythm of lumbar movement. She complained of chronic backache and irritability with generally reduced spinal movement and restriction of physical activities. Dr Leow stated that he needed to rely upon Ms Hoyne’s honesty in recording her symptoms as there were “no strong objective signs”.[11] He noted that in the past year, her symptoms had escalated greatly and unexpectedly. As a consequence, he had referred her back to see Mr Khan. Dr Leow considered that her incapacity would affect her in the foreseeable future. In terms of employment, he thought that she was probably capable of working part-time up to 20 hours per week, with lifting restricted to 5 kilograms.[12]
[11]PCB 50
[12]PCB 51
37 In July 2010, Mr Khan was of the view that, from the physical aspect of her injury, a long-term prognosis was favourable provided she received intensive treatment in a multi-disciplinary clinic where she would receive rehabilitation, pain management and physiotherapy. Ms Hoyne has not attended such a clinic. She said there were none close to her residence. No further report was tendered from Mr Khan.
38 In August 2011, Mr Battlay thought that Ms Hoyne’s prognosis was good.
39 In April 2013, Mr Brownbill considered it was prudent for Ms Hoyne to avoid activities involving heaving lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He considered that those restrictions should continue as long as her ongoing symptoms remained. He did not consider that she had the capacity to return to her pre-employment duties but thought she had the capacity to perform suitable employment avoiding those activities.
40 As he had been unable to provide an exact basis for her ongoing pain, he considered the prognosis remained uncertain.
41 In September 2013, Mr Dooley considered that Ms Hoyne had had a psychological reaction to a situation and that the reaction influenced her ongoing symptoms.
42 Section 134AB(38)(h) of the Act provides that such a psychological consequence of a physical injury is not to be taken into account in determining the consequences of a physical injury. Mr Dooley considered that, taking into account the described job description, Ms Hoyne would have the physical capacity to carry out some aspects of her pre-injury employment but would have difficulty with any regular bending, twisting or manoeuvring. On balance, however, he was not prepared to say that she had the physical capacity to carry out all of her pre-injury duties. She did have the capacity to carry out a range of light physical work and clerical duties. He acknowledged that prolonged sitting could precipitate pain, as could activities involving a lot of forward bending. Nevertheless, he thought that her ongoing pain and described disability was greater than he would have expected to see for either the underlying degenerative condition of her back or the work-related aggravation of it.
43 Counsel for Ms Hoyne submitted that the consequences of her injury were effectively that, prior thereto, she had been very active with a wide range of social and recreational activities. Since her injury, she had been forced to cease most of those activities and lead a relatively sedentary life.
44 He submitted that the consequences of her back injury were:
(a) her back remained constantly painful; that it was painful every day, although some days were worse than others;
(b) she had previously been a keen horse rider; she was now limited to walking her horse quietly for 20 or 30 minutes at most;
(c) previously she had water skied regularly but was now unable to do so;
(d) she had previously regularly attended to her flower and vegetable gardens but since her injury did little because of back pain;
(e) previously she had enjoyed regularly riding as a pillion passenger on her partner’s motorcycle but could no longer do so (save for short journeys) because of back pain;
(f) she experienced worse pain when twisting, turning, walking over uneven ground, walking up and down steps and walking on slopes;
(g) she had difficulty with domestic tasks such as removal of washing from the basket and hanging washing on the line;
(h) she had difficulty bending, lifting and carrying;
(i) she is restricted in activities she can perform with her grandchildren and, in particular, referred to difficulties bathing them;
(j) her sleep was interrupted at night; she could not get comfortable in bed; she slept with a pillow between her legs to assist with sleep; she was unable to sleep on her back; she slept badly and was often tired and lethargic in the morning;
(k) her libido is reduced because of her back pain;
(l) she was fit for only light work, that is, her capacity for work had been reduced.
45 Counsel for the defendant submitted that:
(a) the pathology relating to her back was minor;
(b) the plaintiff’s description of her pain was by use of words such as “ache” and “pinch” which, he said, did not indicate severe, high level or unremitting pain. It was not, he submitted, a pain that dominated her life;
(c) her medication (Mobic, Panadol Neck & Back, Brufen) was at the lower end of the scale;
(d) her symptoms were not overly debilitating.
46 I accept that the demonstrated pathology is relatively minor and that no specific disc injury was identified; however, I do not accept the proposition that minor pathology necessarily indicates minor pain or minor consequences of injury.
47 I accept that she is still able to potter around her hobby farm doing minor work around the garden, tending to her chickens and occasionally riding her horse at walking pace. I accept that following her father’s death she was able to assist in the cleaning up of his house.
48 Counsel submitted that whilst Ms Hoyne might only walk the horse slowly, that activity still involved a risk of a fall and that was apparently a risk that she was prepared to take. A DVD film, depicting Ms Hoyne riding a horse for a short time in March of this year, was tendered. The horse was seen walking at a leisurely pace. Ms Hoyne had deposed in her affidavit of March 2012 that she was able to ride her horse slowly around the hobby farm with discomfort. I do not consider the film detracted from her evidence or harmed her case generally.
49 I accept that Ms Hoyne was a truthful witness. I see no reason to doubt her evidence concerning the effects of the injury upon her. Although she was cross-examined thoroughly, her credit in general was not challenged. I consider that the matters nominated by her counsel, as set out above, do fairly describe the consequences to her of her injury.
50 Although there was no expert evidence concerning her life expectancy, I am able to infer that she is likely to live for another thirty years or more, barring some unforeseen accident or illness. She is likely to experience the consequences referred to for the foreseeable future.
51 Taking all the evidence into account, I am satisfied that the pain and suffering consequences of her injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being more than significant or marked and as being at least very considerable.
52 With regard to the loss of earning capacity consequences of her injury, counsel for Ms Hoyne pointed to the evidence from most medical practitioners that she would be unwise to engage in employment which involved repetitive twisting, bending or lifting of items of more than 5 kilograms. Further, he pointed out that Dr Leow had expressed the view that she was probably capable of working part time up to 20 hours, with a maximum weight restriction of 5 kilograms. He thought this incapacity was likely to last for the foreseeable future.
53 Mr Brownbill considered she should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting but thought she had the capacity to perform suitable employment within those restrictions. He made no reference to reduced hours of work.
54 Mr Dooley considered she had a capacity to carry out a wide range of light, physical work and clerical duties and again, made no mention of reduced hours.
55 I note the circumstances in which Ms Hoyne ceased employment with the employer. Up until that time, it would appear that she was coping with full-time employment, albeit on modified duties. Her employment ceased upon her acceptance of the redundancy package.
56 Her attempts to find alternative employment since ceasing work with the employer were the subject of criticism by counsel for the defendant. She had looked for advertisements in the local newspaper on occasions and had made an enquiry about work at a local shop. I have formed the view that Ms Hoyne has not made any determined search for work.
57 In an application such as this, the onus is on the applicant to demonstrate that there is no suitable employment for her in which she could earn 60 per cent or more of what she would have been capable of earning from personal exertion had the injury not occurred.
58 The parties agreed that Ms Hoyne had the onus of proving that there was no job which she was capable of working where she could earn $629 per week or more in order to satisfy the requirements of s134AB(38)(e), (f) and (g).
59 In Giankos v SPC Ardmona Operations Ltd,[13] the Court of Appeal referred to the defendant/employer in such an application having an evidentiary onus of establishing there was suitable employment available to the plaintiff but this was the case only where the plaintiff had established a prima facie case that there was no suitable employment available
[13][2011] VSCA 121 at paragraph [115]
60 Taking all of the evidence into account, I am not satisfied that Ms Hoyne has discharged that onus. It is likely that there are employment positions in which she could earn such income performing light clerical or retail work in one or other of the towns reasonably close to where she lives – Broadford, Kilmore, Seymour or Wallan. Although she has limited education, she presented well when giving her evidence and appeared intelligent and well spoken. As referred to above, Ms Hoyne has already made enquiries concerning a job at a local store but was unsuccessful in that one attempt.
Conclusion
61 For the reasons expressed above, I am satisfied that the pain and suffering consequences of Ms Hoyne’s back injury are such that she has suffered a “serious injury” as defined in the Act.
62 I am not satisfied that she has suffered a loss of earning capacity that, when calculated in accordance with s134AB(38)(e), (f), and (g), would entitle her to bring a claim for loss of earning capacity damages.
63 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Ms Hoyne to commence a proceeding to recover pain and suffering damages in respect of injury suffered by her in the course of her employment with the employer.
64 I shall hear the parties in respect of any consequential orders sought.
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