Ilic v Select-O-Pedic Bedding Pty Ltd
[2013] VCC 1862
•4 December 2013
| 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-12-05579
| IVANA ILIC | Plaintiff |
| v | |
| SELECT-O-PEDIC BEDDING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Ilic v Select-O-Pedic Bedding Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1862 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application - Injury to lower spine – whether the consequences as to pain and suffering are “very considerable” – whether plaintiff satisfies the test for 60 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to issue common law proceedings for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Zaparas Lawyers |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to her lower spine in the course of her employment duties with the defendant from August 2007 until she ceased work in March 2010. She has not returned to any form of employment since then.
2 She claims to suffer constant pain in her lower spine, aggravated from time to time depending upon the activities in which she is involved, and that a range of social, domestic and recreational activities have been curtailed or lost.
3 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 duties over the period from 2007 until 2010. The body function said to be lost or impaired is the lower spine.
4 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 pain and suffering and loss of earning capacity.
5 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, together with medical, radiological and vocational reports were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known and it is unnecessary for me to revisit the relevant sections, and those authorities.
Relevant background
6 The plaintiff was born in Bosnia and is now fifty-nine years of age. She was educated in Bosnia and after completion of secondary school, learned dressmaking and machining. She was married in 1975 and has three children. She worked on the railways in Bosnia, and as a seamstress. Because of civil war, she left Bosnia and moved to Serbia. She came to Australia in 1998 with her family and undertook some English courses. In January 2000, she commenced work with the defendant as a machinist making mattresses. The nature of the duties is set forth in her affidavit.[1] There is no challenge by the defendant to the causative relationship between the plaintiff’s employment and her lower back injury. Generally, she described the work as “heavy”, and required her to both sit and stand while sewing, and operating large sewing machines.
[1]At paragraphs 3-26, Plaintiff’s Court Book (“PCB”) 6-11
7 She worked approximately 40 hours per week plus up to six hours overtime. For the year ended June 2009, she earned $50,863.00 gross, or $978.00 gross per week.
8 According to her affidavit, she enjoyed social contact with her fellow employees[2] and was actively engaged in a range of domestic duties, caring for her family. She was houseproud and enjoyed domestic tasks. Her husband suffered an injury to his foot when he fell from a roof and had some time off work as a self-employed welder. He has now returned to work full time.
[2]PCB 13
9 The plaintiff did all the cooking and cleaning for her family, washing and shopping. She walked regularly, which she found particularly enjoyable.
10 She had been diagnosed with epilepsy, and did not drive a car for that reason. The epilepsy was controlled by appropriate medication and did not affect her work capacity. It was her intention to keep working until retirement age.[3] Neither the plaintiff nor her husband had significant savings nor superannuation.
[3]PCB 22
11 She was otherwise well, and in particular had no pain nor disability in her lower spine.
The injury and its consequences
12 The plaintiff first started to feel pain in her lower spine in 2004 or 2005. She also started to feel pain in her hands. For that reason, she left employment with the defendant and obtained work with Seat Covers World in Clayton in March 2005. She continued to work full time with that employer until August 2007, and left because of substances in the atmosphere and noxious smells.
13 She returned to work for the defendant in August 2007, resuming her old duties. She described the work as arduous and demanding and by February 2009, she attended her general practitioner, Dr Pjesivac, complaining of a one-year history of pain to her elbows, wrists, left hip and right knee. Dr Pjesivac diagnosed bilateral carpal tunnel syndrome. The first complaint of lower back pain to Dr Pjesivac was in January 2010.
14 She was referred to various practitioners in relation to the problems with her elbow, diagnosed as epicondylitis, which was successfully treated. She suffers no ongoing problem in her elbows, nor wrists. She was also diagnosed as suffering patello-femoral dysfunction in the right knee. To Dr Pjesivac in January 2010, she blamed her lower back pain on repetitive pulling and pushing at work. He reported a limited range of movement in the lumbar spine.
15 In January 2010, Dr Pjesivac referred the plaintiff for a CT scan of the lumbar spine which showed diffuse bulging at L4-5 without neural compromise, facet joint degeneration and mild narrowing at the exiting L4 nerve root. There was further degeneration at L5-S1.[4]
[4]PCB 47
16 In February 2010, Dr Pjesivac referred the plaintiff to Mr Brighton-Knight, orthopaedic surgeon. He noted the plaintiff had what he believed to be mechanical low-back pain, and a meniscal tear to the right knee. He did not think that the low-back pain was of neurological origin. He arranged an MRI scan of the spine[5] which showed a broad-based L4-5 disc bulge to the right side, contacting the right L4 nerve root, with possible impingement. Further, there was a small L5-S1 broad-based disc bulge contacting the right L5 nerve root. He said that the MRI scan showed –
“… more than I expected in that it shows that she has L5 nerve root compression in the exit foramen. This may well account for the pain that she has in her knee and therefore I have organised for her to have a nerve root injection.”[6]
[5]PCB 50
[6]PCB 41
17 Mr Brighton-Knight injected the area, which he said provided some relief. He noted the plaintiff continued to have lower back pain, in particular at night.
18 He advised the plaintiff to undergo a microdiscectomy and nerve root decompression, and provided her with written information about the risks of the operation. She originally agreed to the procedure, but having considered the material, decided against surgery.
19 The plaintiff was again reviewed by Mr Brighton-Knight in May 2012. On examination, her lower back pain had increased, and the plaintiff complained of a number of episodes of severe left-sided radicular pain going down to the left foot, with symptoms similar to previous examinations. He suggested a whole spine MRI scan and an MRI scan of the brain. The scan could not be completed as the plaintiff could not tolerate being in the MRI machine. She has not returned to Mr Brighton-Knight and has been advised he is no longer treating WorkCover patients. I was informed by Ms MacTiernan, counsel for the plaintiff, that an attempt had been made to obtain a more comprehensive report from Mr Brighton-Knight, but he had refused to cooperate.
20 The plaintiff has remained under the care of Dr Pjesivac through to the present time. She sees him approximately monthly and he provides prescriptions for medication and WorkCover certificates. At present, the plaintiff takes Codapane Forte, for pain, and consumes about twenty tablets each couple of months. She used to take Panadol Osteo, but stopped because of stomach problems. She takes Panadol, approximately ten per week, and sometimes up to six per day when the pain is particularly bad.
21 In January 2010, Dr Pjesivac provided the plaintiff with a certificate for two weeks off work. She returned to mostly normal duties, but was unable to continue because of back pain. She ceased work in March 2010, and has not returned to any form of employment since. In evidence, she said she felt entirely unable to return to her previous duties, or to any other form of employment, even light duties or part-time employment, because of the lower back pain, and pain referred into the left leg.
22 In 2010, a return to work plan was prepared by the employer with the approval of Dr Chris Baker, an occupational physician, who saw the plaintiff in March 2010. According to Dr Pjesivac, the return to work plan was not appropriate and it was reasonable for the plaintiff not to attempt to return, given that her lower back and elbow pain disabled her totally from all work.[7]
[7]PCB 28
23 In his report of 20 November 2013, Dr Pjesivac said the plaintiff consistently complained of unchanged lower back pain and left sciatica. She had a reduced tolerance to sitting, standing and repetitive bending. He confirmed that she was disabled for all work, and that situation would remain for the foreseeable future. He noted the plaintiff was depressed and required psychotherapy. He said she would need ongoing analgesic treatment and that her prognosis for work was poor.[8]
[8]PCB 36-37
24 According to the plaintiff’s affidavit, and evidence, she complains of the following ongoing consequences of injury:
· Constant lower back pain, and referred pain into the left buttock and thigh. On occasions, the pain is exacerbated and she is unable to leave the house.
· The pain requires the taking of medication, including Codapane Forte and Panadol.
· She is unable to return to her previous duties, or any other form of employment. She misses the social interaction with fellow employees.
· She has been unable to resume her domestic duties which she enjoyed and of which she was proud. She needs the assistance of her husband and children, in particular in relation to heavier duties such as vacuuming, hanging out the washing and bending down to empty a dishwasher.
· She is unable to walk in the manner she enjoyed before injury, which was a pastime she enjoyed.
· Her back pain stops her having a proper night’s sleep. She tosses and turns and cannot get comfortable. She wakes and is tired the next day. As a result, she has reduced energy levels.
· She has seen a physiotherapist over a considerable period of time.
· Sitting or standing for longer periods causes back pain.
· Although she sees her grandchildren, now aged three and six, regularly, she is unable to interact with them in the manner that she would wish. In particular, she cannot pick them up.
25 In the course of cross-examination, the plaintiff said that she goes to see her daughter, who lives not far away, three to four times a week. She is driven by her husband or son. She helps her daughter look after the two grandchildren. She walks with them, watches television and takes them to local parks. She enjoys this interaction as it gets her away from her house, and takes her mind off her pain. If her back is particularly painful, she does not leave the house. The medication she takes helps, and at times the pain gets down to a manageable level.
26 She admitted that she had not made any attempts to find work since March 2010, either of a part time or of a light nature. It was put to her that she was not pursuing work options as she was content to assist her daughter in looking after the grandchildren. She denied this and said she missed work and had not retuned to the workforce because she felt unable, with her back pain and restrictions, to complete any work duties. If anything, her back pain had become worse.
Credibility of the Plaintiff
27 I found the plaintiff an impressive witness giving a fair account of the injury to her lower back, and the consequences that she suffers as a result. She made the concessions I would expect of an honest witness in the course of cross-examination. I did not detect any attempt to exaggerate her restrictions nor symptoms.
28 Video surveillance of the plaintiff was shown depicting various activities in September 2012 and November 2013. The plaintiff was shown to walk around a shopping centre and suburban streets in a relatively normal manner. At one point, the plaintiff was seen to lean into the backseat of a car to assist to secure her granddaughter. That aspect of the video surveillance was only momentary. The surveillance did not impeach the credit of the plaintiff. There was nothing inconsistent between what was depicted on the surveillance and the evidence of the plaintiff and the histories provided to the various medical practitioners.
Consultant medical opinions
29 The plaintiff was examined in 2011 and 2013 by Mr Charles Flanc, vascular and general surgeon, at the request of her solicitors. In the most recent report, Mr Flanc said the plaintiff complained of constant low-back pain, at times extremely severe. Further, the plaintiff had pain in her left leg, more severe over the last year, radiating down the back of the leg and into the toes of the left foot. He noted the plaintiff walked without difficulty. He noted the MRI reported disc bulging at L4-5 and possible compression of the right L4 nerve root. He concluded the plaintiff had suffered an aggravation of underlying degenerative disease in her lumbar spine in the course of her employment. He said there was the possibility of nerve root impingement given her left leg pain. He said there were some non-organic factors present, possibly associated with a Chronic Pain Syndrome. It was clear the plaintiff would not be able to return to her pre-injury duties and although in his first report he thought the plaintiff had the capacity for part-time light duties, because of the worsening of her condition, he thought she may have a “theoretical” capacity for certain tasks, to be performed three hours a day on alternative days, but that realistically, the plaintiff was unemployable.
30 The plaintiff was examined by Mr Justin Hunt, orthopaedic surgeon, in June 2011. He said the plaintiff was suffering mechanical low-back pain due to symptomatic lumbar spondylosis. He said she could not return to her pre-injury employment and although it was possible she may be able to perform alternative duties, those duties would be restricted so that she should avoid lifting, bending or twisting, squatting, kneeling or sitting for long periods or performing repetitive movements. He said it would be difficult for her to find such alternative duties. He said her domestic and daily activities were restricted.
31 The plaintiff was examined by Mr Kevin Siu, neurosurgeon, in May 2013. She complained to Mr Siu that she was unable to get a good night’s sleep and she suffered cramps in bed which woke her up. He said the MRI scan of 2012 showed disc prolapses at L4-5 and L5-S1. He said there was compression of the right L5 nerve root. He said the plaintiff was not fit for her pre-injury duties but was fit for alternative duties. He suggested she undertake physiotherapy and attend a spinal rehabilitation centre. He said the prognosis was guarded, although there was the prospect for a return to lighter duties after intensive rehabilitation.
32 The plaintiff was examined on behalf of the defendant by Mr Bruce Love, orthopaedic surgeon. She complained to that practitioner of constant low-back pain, although she was relatively comfortable for the majority of the time. The pain at night was worse and there was referred pain into her left leg to the knee. The plaintiff said she could not cope with the housework without assistance. He said the MRI scan of 2012 showed degenerative disc disease at L4-5. He concluded that the work duties made the underlying disc disease painful. He said the plaintiff was unable to return to her pre-injury duties and that he did not believe that she was capable of working in alternative duties for the foreseeable future. He said he did not detect any abnormal illness behaviour nor functional overlay.
33 A vocational assessment report prepared by Ms Leonie Schneider was tendered. I did not find the report of any significant assistance. Ms Schneider concluded that the plaintiff had no current work capacity for pre-injury employment, or any other suitable alternative employment. In my view, the assessment of work capacity lies with the physical medical practitioners.
34 The plaintiff was examined by Dr Chris Baker in March 2010. He noted a complaint of six years of back pain which the plaintiff had attributed to her work-related activities; however, he said there was a lack of evidence to indicate that her back condition was work related. There were some degenerative changes in her lower spine but without radiculopathy. I do not accept the opinion of Dr Baker. He is the only practitioner to find no causal link between employment and injury. Mr Gourlay, for the defendant, quite appropriately in my view, did not seek to rely on his opinion.
35 Finally, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in June 2013. He noted ongoing lumbar spine pain, at times radiating to the left leg and the toes of the left foot. The plaintiff said that she was unable to do the heavier aspects of household work and that she missed the social contact her work previously provided. He concluded that she was suffering age-related degenerative disc disease mainly at the L4-5 level. He accepted that that underlying disease was aggravated by her work activities. He thought the constancy and intensity of the ongoing pain was greater than he would have expected. He believed the plaintiff had a psychological reaction to her situation, including having to cease work, which influenced the ongoing symptoms. He suggested she remain generally active and undertake regular low-impact exercise. He thought there was no objective evidence of neurological deficit and no indication for surgery. He said he would expect the plaintiff to have ongoing intermittent low-back and left leg pain. The plaintiff had a capacity to carry out light physical work such as clerical duties. He said there were no objective signs of abnormal illness behaviour.
Conclusions
36 I accept the opinion of most of the medical practitioners that in the course of her employment duties, the plaintiff suffered an aggravation of underlying disc degenerative disease, in particular at L4-5 and, to a lesser extent, at L5-S1. I further accept the evidence of the plaintiff that she suffers pain into her left buttock and thigh, and on occasions, further down the left leg. I accept this is related to compression, probably of the right L4 nerve root. This was the basis upon which Mr Brighton-Knight contemplated surgery at an earlier time.
37 Accepting the plaintiff as an honest witness, I accept her complaints of pain in the back and into the left leg and accept the consequences of that pain which requires her to take medication on a regular basis, significantly reduces her capacity to undertake a range of domestic duties, and affects her sleep.
38 In my view, these consequences of injury do achieve the “very significant” barrier which the Act prescribes.
39 The situation in relation to the plaintiff’s work capacity is somewhat more complicated.
40 I was impressed by the reports of the plaintiff’s general practitioner, Dr Pjesivac, who has treated the plaintiff over many years, and, in my view, is well placed to assess her work capacity. He said the plaintiff had a reduced tolerance for sitting, standing and repetitive bending, and that she was disabled for all work for the foreseeable future. The plaintiff has only ever worked in manual employment, in particular as a machinist, and such restrictions would make any form of employment in that area particularly difficult.
41 Mr Flanc, who saw the plaintiff on two occasions, thought she had a theoretical capacity for lighter duties, performed three hours a day, but was realistically unemployable.
42 Mr Hunt said the plaintiff had a capacity to perform some alternative duties, providing she avoided lifting, bending or twisting, or performing repetitive movements. Again, for a person whose employment experience has been largely as a machinist, she would have no realistic capacity for work in that area.
43 Mr Siu thought the plaintiff was fit for alternative duties, but required physiotherapy and intensive rehabilitation.
44 Mr Love, who examined the plaintiff for the defendant, said the plaintiff was not capable of pre-injury duties, nor alternative duties.
45 Mr Dooley thought the plaintiff had the capacity for light physical work such as clerical duties.
46 Mr Flanc made reference to some non-organic features in the plaintiff’s presentation, and Mr Dooley said that the lumbar spinal pain of which the plaintiff complained was greater than he would have expected in the circumstances, however did not find objective signs of abnormal illness behaviour. If the plaintiff suffers some functional component to her physical pain, in my view, it is modest, and I accept that overwhelmingly the pain in her back and left leg and the restrictions which she suffers, have a physical basis.
47 In considering the plaintiff’s work capacity, I bear in mind the matters to be taken into account in the definition of “suitable employment” referred to in s5 of the Act, in particular the plaintiff’s age, education, skills and work experience. I prefer the opinion of those practitioners who are of the view the plaintiff has little, if any, work capacity. She may be able to perform alternative light duties for some hours per day, several days per week, but that ability is modest only, and in my view, the effect upon her work capacity as a result of her injury exceeds 40 per cent as the legislation requires, and significantly so.
48 I reject the submissions of the defendant that the plaintiff has not pursued any form of employment or in fact applied for any jobs as she is content to spend her time assisting her daughter with her grandchildren. I accept the plaintiff’s evidence she enjoys that interaction and it “gets her out of the house” and that it does not involve any strenuous activity. The plaintiff has a strong employment history and I accept she and her family are not so well off as to allow her to retire. I accept her evidence she misses her former work and the company of her colleagues.
49 I am of the view therefore that the plaintiff meets the statutory test, both in respect of pain and suffering and loss of earning capacity, and I will make orders accordingly.
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