Jakovleski v Austin Health
[2013] VCC 1967
•20 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-12-04721
| KIRO JAKOVLESKI | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 November 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Jakovleski v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1967 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – s134AB Accident Compensation Act 1985 – serious injury – pecuniary loss and pain and suffering – nature and extent of injury – aggravation of spinal degeneration
Legislation Cited: Accident Compensation Act 1985 s134AB(16)(b)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Ansett Australia Ltd. v Taylor [2006] VSCA 171.
Judgment: Leave granted to the plaintiff to claim damages at common law for pain and suffering in respect of the injuries sustained in the course of his employment and particularly between May 2007 and May 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr D Seeman | Nowicki Carbone |
| For the Defendant | Ms G-J Cooper | Hall and Wilcox |
HIS HONOUR:
Preliminary
1 Mr Kiro Jakovleski is presently fifty-nine years of age and was employed as a linen-service assistant at Austin Health commencing in 2001. He seeks leave to commence common law proceedings pursuant to the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of injuries to his thoracolumbar spine sustained in the course of his employment and particularly between May 2007 and May 2010.
2 The application is made under paragraph (a) of the serious injury definition set out in s134AB(37) of the Act, and the body function identified is described by senior counsel for the plaintiff as “essentially aggravation of spinal degeneration in the thoracolumbar region”.[1]
[1]Transcript(“T”)2, L23–24
3 The plaintiff was made redundant on 31 July 2010 when the laundry service at the Austin Hospital was closed down by the employer. The plaintiff has not worked since that time.
4 There are two primary issues in dispute between the parties. The first issue is whether the plaintiff’s current symptoms are causally related to his work-related injuries. The second issue concerns the extent of the plaintiff’s consequences flowing from his injuries and whether those consequences are sufficient to satisfy the relevant statutory thresholds.
The evidence
5 The plaintiff swore a single affidavit in support of his application on 7 May 2012, some eighteen months prior to this hearing. In evidence before me the plaintiff’s current position was updated, and he gave evidence that he did not believe he had a current capacity for employment as against a capacity for light-duty employment in the order of 15–18 hours per week in his affidavit. He also gave evidence that his current treatment involved physiotherapy, hydrotherapy and the ingestion of painkillers. He saw the physiotherapist every four to six weeks.
6 It is helpful to set out passages from the plaintiff’s affidavit material prior to embarking on an assessment of his injuries and the consequences resulting from them. In summary, the following matters emerge from the affidavit:
· The plaintiff left high school in Macedonia at eighteen years of age and worked as a cabinetmaker and later a train conductor before migrating to Australia in October 1988.
· On arrival in Australia the plaintiff worked for eleven years as a process worker with Bertocchi Smallgoods, suffering an injury to his back in 1991 requiring a short time off work and some medical treatment.
· After leaving Bertocchi he worked as a cleaner for about a year before starting with the defendant in 2001 working in the hospital laundry.
· The plaintiff deposed to suffering from spinal injuries in the course of his employment in May 2007, January 2008, May 2008 and May 2010.
· The work process with the defendant was often strenuous and involved handling bags of linen, some of which were wet. Machine loads could be up to 40 kilograms, and often linen was tangled and difficult to transfer into the dryer.
· Around May 2007 the plaintiff developed back pain due to repetitive lifting of bags of linen in particular. The plaintiff saw Dr Aleksova, was prescribed Panadeine Forte, given x‑rays, and was incapacitated for a period of no more than a couple of weeks. He then returned on light duties again for a few weeks and returned to normal duties.
· In January 2008 the plaintiff again developed low-back pain and additionally pain in the left foot. He was again treated by Dr Aleksova and had a few days off work.
· On 14 May 2008 the plaintiff suffered a fall, injuring in particular his mid-back and chest. He had some low-back pain and was again treated by Dr Aleksova. He was given a further 2–3 weeks off work, and light duties for a further 2–3 weeks.
· In May 2010 the plaintiff again developed increased back pain associated with lifting of heavy linen bags. He had further imaging done of the lumbar and thoracic regions of the spine in June 2010 and was referred to a specialist, Dr Karlov.
· The plaintiff was working modified duties at that time, and was then made redundant on 31 July 2010.
· The plaintiff made some limited attempt to find alternative employment shortly after his redundancy, but had not obtained any employment.
· He complained of mid-back pain radiating to the neck, and low-back pain.
· The plaintiff described a number of restrictions on his activities which I will consider later.
7 In cross-examination the following evidence emerged:
· The plaintiff had two back injuries whilst working at Bertocchi, in 1991 and 1998. Following the latter injury he had 2–3 weeks off work.
· The plaintiff had a rear-end motor vehicle collision in 1997 involving a neck injury the plaintiff thought was a strained muscle. He admitted submitting a Transport Accident Commission claim form and being taken to hospital by ambulance.
· The plaintiff was referred for a CT scan of the neck, thoracic spine, right shoulder and brain by a Dr Romas in 2001. He was then diagnosed as suffering from osteoporosis.
· From about 2004 the plaintiff agreed that he had suffered neck pain but he did not think it was regular, although he probably complained about “a little bit of ache and pain”.[2]
[2]T19, L25–27
· The plaintiff agreed that after the fall in 2008 his WorkCover claim form recorded the injury as affecting “lower ribs pain, soft tissue injury, left sided chest wall”.[3] He agreed that his GP Dr Aleksova had arranged for an x‑ray of his chest and left ribs.
[3]T22, L21–23
· The plaintiff had undergone chemotherapy for leukaemia in 2009 and early 2010 and was to be performing modified duties up to the time he was made redundant. The plaintiff maintained that he was on light duties because of the lower back problems resulting from work handling the linen bags, and not because of chemotherapy.
· Between May 2010 and July 2010 the plaintiff had not submitted any further WorkCover claim, and used his sick pay rather than take time off on WorkCover.
· The plaintiff was presently taking medication consisting of Voltaren Osteo, Tramal, Panadeine Forte and Valium. He varied the dosage depending on the level of pain, but did take medication on a daily basis.
· A bone scan revealed the plaintiff to be suffering from osteopenia in the lumbar spine in 2010.
· The plaintiff had continued to go fishing after sustaining injury, although not on a regular basis as he used to do. He conceded that prior to his injuries he did not go fishing every weekend, but on a more frequent basis than after sustaining injury.
· The plaintiff stated that he had been able to dance in fast dances before the accident but now could only do slow ones. Before coming to Australia he was in dancing groups, and described himself as a professional dancer.
· The plaintiff’s current medication he agreed might rotate between Panadol Osteo and Tramal “if I’ve got bigger pain”.[4]
[4]T27, L24–30
· The plaintiff agreed that he had applied for some jobs after being made redundant in July 2010 but these were light duties with lifting up to 5 kilograms. He maintained that as at the date of hearing he was not able to do any work.
· The plaintiff was taking Valium so he could get better sleep. He stated that his sleep was affected in that he could not sleep non-stop through the night. He would only get three, four or perhaps five hours’ sleep per night. This had been the situation from about 2008.
· The plaintiff stated in cross-examination that he had been having pain in his hands and arms which would have some impact on his ability to do gardening apart from his back injury.
· In re‑examination the plaintiff stated that he had been performing light duties, with restrictions on heavy lifting and bending and a less than 5 kilogram weight limit, at the time he was made redundant in July 2010.
· To further questions concerning his medication, the plaintiff confirmed he was taking roughly eight Panadol Osteo per day and Tramal 90 per cent of the time, usually in the morning.
· The plaintiff stated he would have continued working on the light duty depending on how his “health and body would have put up with it”.[5]
[5]T45, L12–15
8 Two doctors were cross-examined by Ms Cooper for the defendant. Firstly, Dr Dzartov, a general practitioner, who reported to the plaintiff’s solicitors on 31 January 2013.[6] He had first treated the plaintiff on 28 May 2010 but he was not the plaintiff’s regular treating doctor. He first noted the plaintiff complaining of left-sided back pain radiating into the left leg, and some pain in the left groin. He arranged imaging which showed a longstanding fracture of T12 and lower lumbar degenerative disc disease, particularly at L5‑S1 level. He also referred the plaintiff for testing to confirm the osteopenia of the lumbar spine.
[6]Exhibit A, page 44–45
9 Dr Dzartov saw the plaintiff again in July 2010 and took a further history of the plaintiff experiencing sharp pain between the shoulder blades and along the thoracolumbar spine occurring at work on 29 June 2010. His diagnosis was that of work-related back injury, recurrent back pain due to compression fracture of T12. In cross-examination, he regarded the plaintiff as being capable of performing light duties at the date he had written his report.[7]
[7]31 January 2013
10 The defendant’s counsel also cross-examined Dr Aleksova, the plaintiff’s regular general practitioner, who had provided a brief report to the Accident Compensation Conciliation Service on 13 June 2011 and a more detailed report to the plaintiff’s solicitors on 30 May 2013. She had regarded the incident in June 2010 where the plaintiff complained of pain in his upper back between the shoulder blades as being a continuance of a work-related injury occurring on 16 May 2008. At the time of her report in 30 May 2013 she regarded the plaintiff as incapacitated for his pre-injury employment.
11 In cross-examination she gave the following evidence:
· She had treated the plaintiff since approximately 1998.
· On 3 November 1998 she noted the plaintiff to have a painful back from T4 to T12 (the thoracic region of the spine).
· She agreed that an x‑ray taken at that time of the chest and ribs commented on a known T12 fracture.
· On 2 April 2001 she noted the plaintiff complaining of pain in the back and the front of the chest “when he grabs a lot of clothes”.
· In 2004 and 2005 there were notations relating to the cervical spine, and the plaintiff was receiving physiotherapy and seeing a neurosurgeon.
· In the period thought to be 2004, 2005 or 2006 the plaintiff received chemotherapy for leukaemia and went into remission. Dr Aleksova stated:
“He went into remission and everything feels fine with that.”[8]
[8]T60, L27–28
· Dr Aleksova was aware that the plaintiff suffered from osteopenia.
· She was aware of the T12 fracture in 2008 but expressed no firm view as to whether it had been caused by the fall sustained by the plaintiff in that year.
· When pressed about the relationship between the T12 fracture and the 2010 symptoms being a continuance of the May 2008 injury, she maintained her opinion that the two were related.
· Dr Aleksova agreed that the complaints relating to a sore neck in 2005 were in a different area completely.
· The doctor maintained that the plaintiff’s overall condition had worsened since July 2010 but not specifically his upper-back condition. She did maintain that the pain currently suffered in the thoracic spine was related to the 2010 incident.[9]
· In terms of his capacity for work, she stated that despite the aggravation in 2010 the plaintiff had continued to work but stopped working as his employment had ceased and “not because he was unwell or unable to work”.[10]
[9]T71, L22–25
[10]T71, L10
12 In re‑examination Dr Aleksova maintained her opinion as to the relationship between the pain in the thoracolumbar region and the work in the laundry at the Austin Hospital. She described the strength of the various medications as follows:
(a)Panadol Osteo, “if it’s not too bad”;
(b)occasionally Voltaren “just to top up pain relief, and not to use it too much because of other problems”; and
(c)Tramal “is extremely, you know, when it’s really bad”.[11]
[11]T75, L12–17
13 Dr Aleksova described osteopenia as not producing pain on its own, but just increasing the risk that lower levels of trauma can cause bigger problems.
14 She did not see a realistic possibility of any change for the better in relation to the plaintiff’s back condition, stating:
“It won’t get better ... well, the fracture is there. It will stay.”[12]
[12]T78, L2–7
15 The plaintiff relied upon the medico-legal opinion of Mr Duy M Thai, orthopaedic surgeon, who reported to the plaintiff’s solicitors on 6 November 2013. He took a history that was generally consistent with the plaintiff’s evidence, noting earlier episodes of back pain in 1991 and 1998 and a fall involving the anterior chest wall on 16 May 2008. He also noted a history of an incident in 2007 to the lower back when picking up laundry. This apparently settled. He next had a history from Dr Dzartov’s report of the incident on 29 June 2010 when lifting the bag of laundry.[13] I note Mr Thai’s history records 29 June 2013 as the date of injury, but this comes from the report of Dr Dzartov written on 31/1/2013 and is presumably an error.
[13]Exhibit A, page 48
16 Mr Thai concluded that the plaintiff had aggravated his chronic back pain on a number of occasions whilst employed at the Austin Hospital. He felt that the changes in the thoracic and lumbar spine would remain stable, and that it was unlikely the plaintiff would achieve complete resolution of his pain. He noted some restrictions in recreational activities consistent with the affidavit and viva voce evidence of the plaintiff. He felt that the plaintiff had a permanent incapacity from undertaking heavy manual labour work. He felt it possible that the plaintiff could perform duties that are “not labour intensive”.[14]
[14]Exhibit A, page 50
17 The defendant relied upon a medical report from Mr Peter Battlay, general surgeon, dated 7 November 2013.[15] He conducted a single examination of the plaintiff on the same date but had been provided with a considerable amount of material including radiological material going back to 4 June 2001. I note in particular that he was provided with clinical notes from Dr Jim Ristevski, as well as clinical notes from Dr Aleksova. He noted some contradictions in his examination findings, and provided a review of the radiological material, although he had not seen the films. Significantly, the report from 4 June 2001 referred to the wedge fracture around T11 as “consistent with old compression fracture”. Later radiology used similar expressions.
[15]Exhibit 1, page 19–26
18 Mr Battlay accepted that the plaintiff had degenerative disc disease in the lumbosacral region but concluded that such degeneration was in his view age-related. He felt that the T12 compression fracture was consistent with a previously-described fall which was apparently denied by the plaintiff at the time of the examination. He noted that the plaintiff was apparently on modified duties from approximately 2008 but concluded:
“He clearly had an unrestricted capacity for his physical duties and, in my opinion, this is still the case.”[16]
[16]Exhibit 1, page 25.
19 It would seem logical that Mr Battlay in using the phrase “his physical duties” is here referring to the modified duties that were being performed by the plaintiff at the time he was made redundant in 2010.
20 The evidence also included radiological material and clinical notes from Dr Aleksova covering the period 28 February 1998 to 1 December 2009.[17] It is unnecessary to comment further on this material other than to note it was available to the various medical witnesses.
[17]Dr Aleksova had explained in evidence that her practice had been taken over and she no longer had access to more recent medical records.
Analysis
21 The evidence discloses that the plaintiff had sought medical treatment over many years in relation to pain and other symptoms affecting his cervical, thoracic and lumbar spine. The thoracolumbar spine is said to be the body function impaired giving rise to this application for leave. The fracture at T12 is long-standing and was present at least by 2001. The medical evidence, particularly the viva voce evidence of Dr Aleksova, gives weight to the proposition that symptoms experienced in the thoracolumbar spine in 2008 were continuing and indeed aggravated by further work episodes occurring from about 28 May 2010. Whilst counsel for the defendant put into issue the question of causation, and relied upon the opinion of Mr Battlay, I prefer the evidence of Dr Aleksova in this regard on the basis that she has been treating the plaintiff since 1998 and has examined him on numerous occasions. I also had the opportunity to observe her demeanour in cross-examination and her responses to questions put to her in the witness box.
22 In final address, senior counsel for the plaintiff did not submit that I should find that the fracture at T12 had been sustained in the fall in 2008, but rather that the mechanism of injury was that of aggravation of underlying spinal degeneration. In view of the uncontradicted evidence of the presence of a T12 wedge fracture noted on x‑ray first in 2001, together with the diagnosis of osteopenia made in 2010 and Dr Aleksova’s explanation as to the interrelationship of these three events, I find that the plaintiff’s underlying spinal degeneration in the thoracolumbar region was relevantly aggravated and accelerated by the incidents in his employment including the fall in 2008 and the lifting episodes in May/June 2010.
23 I am fortified in this conclusion as to a causal relationship existing by the absence of any contradictory material placed before the court by the defendant and also the worker’s injury claim form dated 23 May 2008 and the employer injury claim report dated 26 May 2008 which were tendered in evidence.[18] Absent some explanation for the acceptance of the claim for the purpose of statutory benefits I regard such evidence as very significant[19] particularly having regard to the opinion expressed by Dr. Aleksova as to the relationship between the 2008 and 2010 episodes.
[18]Exhibit 1, page 6–9
[19]Ansett Australia Ltd. v Taylor [2006] VSCA 171 at [40] per Ashley JA
24 The assessment of consequences flowing from an injury in the nature of an aggravation is guided by an application of the principles set out in Petkovski v Galletti,[20] which established that in cases based upon an aggravation of injury it must be an analysis of the consequences of the aggravation itself, rather than the total condition as aggravated, which must satisfy the relevant test for serious injury.
[20][1994] 1 VR 436
25 In the present case the evidence is somewhat unclear as to precisely what duties the plaintiff was performing in the hospital laundry in 2010 at the time he was made redundant. In submissions, counsel for the defendant submitted that the bulk of the evidence is that the plaintiff does have a capacity for work and for light duties. If I were to accept such an analysis, then absent further evidence to limit that capacity I should not be satisfied that the plaintiff would satisfy the appropriate statutory threshold for leave in respect of pecuniary loss damages.[21]
[21]Accident Compensation Act 1985 s134AB(38)(g)
26 Mr Harrison SC, senior counsel for the plaintiff, took a different approach in submitting that the plaintiff had effectively no capacity for employment, having regard to the fact that he was effectively illiterate and limited to a 5‑kilogram lifting limit, and noting that Dr Dzartov’s opinion as to light work excluded any work involving heavy lifting even on an occasional basis.
27 In my view the totality of the medical evidence supports the proposition that the plaintiff retains a capacity for light duty employment. But for the closure of the hospital laundry in 2010, there is nothing in the medical evidence to suggest that by reason of the aggravation of his thoracolumbar spinal injury in the course of his employment he would not have continued performing the light duties at the hospital had they remained available to him. Whilst it is true that Dr Aleksova in her evidence believed the plaintiff had no capacity for employment, she was clearly taking account of his overall condition in coming to this conclusion.[22]
[22]T70, L25–31
28 Whilst I accept the plaintiff tried to provide an accurate account of his overall condition in terms of inability to work, there is no supporting evidence to satisfy me that by reason of his thoracolumbar spine aggravation he has either no current capacity for work on a permanent basis or alternatively a capacity limited in terms of hours that would satisfy the test in sub‑s37(g).
29 In relation to pain and suffering, I make the following findings:
· The plaintiff is presently taking substantial medication on a daily basis including the synthetic narcotic Tramal when his pain is severe.
· The plaintiff’s sleep is disturbed on a regular basis so that he would only get three, four or five hours of sleep per night on a regular basis by reason of his thoracolumbar back pain.
· The plaintiff is significantly less able to engage in fishing, which he enjoyed as a recreation on a regular basis prior to the symptoms worsening in the thoracolumbar spine. I do not accept that the plaintiff went fishing every weekend before his condition worsened, but I do accept that it was an enjoyable activity for him that has now been significantly diminished.
· The plaintiff is less able to engage in social activities including what he described as “fast dancing”. I accept the plaintiff’s evidence that he had always enjoyed dancing and had been what he described as a professional dancer, in that he belonged to a dancing group in Macedonia before coming to Australia. Clearly that was an activity that was enjoyable to him, and it has been lost. I note that he is still able to do slow dances but I accept that he has lost some enjoyment by reason of his injury.
· I accept that the plaintiff suffers significant pain which varies in intensity and requires regular and varied levels of medication. In my view a fair assessment of the plaintiff is that the pain and suffering consequences of his thoracolumbar injury can fairly be described as at least very considerable in terms of their consequences for him.
· Additionally, I note the submission made by Mr Harrison SC that I could take into account the fact of the plaintiff’s practical inability to find employment in terms that were considered in Ellis Management Services Pty Ltd v Taylor.[23] In my view it is not necessary to consider this authority, as I have found that the consequences in terms of pain, ingestion of medication, loss of regular sleep, and interference with recreational activities, collectively define the plaintiff’s pain and suffering consequences as satisfying the statutory threshold. In terms of permanency, I accept the evidence of Dr Aleksova in particular.[24] Ms Cooper did not specifically argue the question of permanency, but rather the position adopted by Mr Battlay that the plaintiff’s condition at present was not related to a relevant workplace injury. For the reasons already discussed, I do not accept that proposition.
[23][2013] VSCA 326
[24]T71, L22–25
Conclusion
30 As a matter of probability, the plaintiff will be unlikely to secure employment in the foreseeable future. Despite various injuries and other medical conditions he had managed to work at the Austin Hospital until July 2010 when he was made redundant when the laundry of the hospital was closed. Whilst the evidence which I have accepted satisfies me that he had sustained a further injury to his thoracolumbar spine only a few months prior to this date, I cannot be satisfied that the consequences of that injury satisfy the high threshold test in respect of an entitlement to claim damages for pecuniary loss. Nevertheless, the consequences of that injury in terms of pain and suffering and loss of enjoyment of life are to my assessment at the higher end of the scale when compared to a range of other possible consequences or impairments.
31 Leave will therefore be granted to the plaintiff to claim damages at common law for pain and suffering in respect of the injuries sustained in the course of his employment and particularly between May 2007 and May 2010.
32 I will hear the parties in respect of formal orders and costs.
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