James v VWA
[2012] VCC 940
•4 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT BENDIGO
CIVIL DIVISION
Case No. CI-11-00326
| RACHEL MARIE JAMES | Plaintiff |
| v | |
| VICTORIAN WORKCCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2012 & 1 May 2012 | |
DATE OF JUDGMENT: | 4 June 2012 | |
CASE MAY BE CITED AS: | James v VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 940 | |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985 (Vic) – S. 134AB – Application for leave in respect of pain and suffering and pecuniary loss damages – Injury to left arm – Complex regional pain syndrome type 1 – Before and after injury earning capacity – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin S.C. with | Arnold Dallas & McPherson |
| For the Defendant | Mr A. Moulds S.C. with Ms S. Manova | Hall & Wilcox |
HER HONOUR:
Introduction
1 This is an application by the plaintiff for leave to bring proceedings pursuant to s.134AB(37) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by her on 8 August 2007 in the course of her employment with the St John of God Hospital (“the employer”).
2 The plaintiff’s claim is for pain and suffering and loss of work capacity. The injury suffered is to her left arm resulting in complex regional pain syndrome type 1 (CRPS type 1). The impairment relied on by the plaintiff is loss of function of her left arm.
3 The plaintiff and Dr Peter Blombery were the only witnesses required for cross-examination. Otherwise both parties relied on the material in their respective court books and a number of other documents which were tendered during the running of the case.
4 During the running of this matter, the granting of a certificate for pain and suffering ceased to be an issue. However, the plaintiff’s work capacity and the way in which her before after injury earning capacity should be calculated remained an issue.
Background
5 The plaintiff’s background history was set out in three affidavits (dated 14 July 2010, 21 October 2011 and 5 March 2012), the contents of which she adopted as being true and correct during the course of giving her evidence.
6 The plaintiff is 31 years of age, having been born in country Victoria on 1 July 1978. She completed Year 12 at Girton Grammar School in Bendigo in 1996 and the following year began nursing studies at Ballarat University. Halfway through the year she returned to Bendigo to work for several months in her parents’ communications business. She recommenced her nursing degree at Latrobe University (in Bendigo) in March 1998, working in various part-time jobs while she completed her studies.
7 The plaintiff completed her nursing degree course requirements in 2001. In early 2002, she began her graduate year working for the employer as a nurse at the Mount Alvernia Hospital, working an average of about 30 hours per week. In 2003 she gained permanent part-time employment with the employer working in the day surgery and operating theatre. On regular occasions she worked up to about 40 hours per week.
8 In May 2007, the plaintiff was promoted to the position of Acting Associate Charge Nurse by the employer, and she was in this role from May 2007 through to the date of her injury, working as a full-time theatre charge nurse. Shortly prior to her injury, she had also obtained a position with Mr Campbell, a local general surgeon, doing sectional work.
The accident
9 On or about 8 August 2007, the plaintiff was assisting with the ophthalmological operating list in a darkened operating theatre attending to a patient who was sedated. During this procedure the patient moved. As this created a danger to the patient (given the surgery being undertaken), the plaintiff tried to stabilise the patient and, in doing so, moved her position in the theatre. When the plaintiff moved she slipped on fluid which had been left on the floor by a scrub nurse who had cleaned the theatre after the previous patient’s surgery.
10 When she slipped, the plaintiff fell onto her left side, particularly onto her outstretched left arm and her left hip. As soon as the incident occurred, she suffered severe pain in her left wrist and hand. However, she had to get up quickly and resume her position in order to maintain the patient in the correct position for surgery.
11 Shortly after the patient was transferred out of the operating theatre, the plaintiff noticed that, in addition to the pain she was suffering, her left wrist and hand had begun to swell. The pain became intense and she was unable to complete her shift. The plaintiff had an X-ray that day and as no abnormality was discovered she was sent home for rest.
12 The following day, the plaintiff tried to return to work but was again sent home because of increasing wrist pain, pain in her hand, pain in her fingers and swelling. She rested over the weekend and then on Monday 13 August 2007, the plaintiff tried to return to work again. However, she was still in pain with significant swelling of her left wrist and hand. By this stage the pain in her wrist had also begun to travel up into her left forearm.
13 The plaintiff continued working throughout that week but by Friday the pain she was suffering in her wrist, hand, fingers and forearm had got to the point where it was almost intolerable. Consequently, she attended at the Hospital’s Casualty Department for treatment and pain relief.
The plaintiff’s treatment
14 On 21 August 2007, the plaintiff was referred to Mr Dougal James, a local orthopaedic surgeon, for whom she had undertaken a lot of theatre work. Up until then, the hospital had been carrying out her treatment and had put her left arm in a back slab. Mr James sent her for various radiological examinations and gave her a cortisone injection in her left wrist and shoulder.
15 On 23 August 2007, the plaintiff attended her general practitioner, Dr Saleen Eapen, who prescribed Tramal and certified her as being incapacitated for work. The plaintiff also signed a WorkCover claim that day and shortly afterwards began to receive weekly payments of compensation.
16 The plaintiff’s condition remained much the same throughout September/October 2007. During this period, Di-Gesic, OxyContin and Endone were added to her medication regime. She also underwent an ultrasound of her left shoulder as, at this time, the pain in her wrist and arm and begun to radiate up into her left shoulder. She was also suffering pain in the left side of her neck.
17 In December 2007, the plaintiff’s general practitioner referred her to Dr David Murphy, a rehabilitation physician who examined her and sent her for some further examinations. Dr Murphy diagnosed complex regional pain syndrome (CRPS), type 1, in her left wrist, hand and arm. Treatment continued throughout 2008 and the plaintiff underwent some nerve conduction studies of her left arm.
18 In early 2008, Dr Murphy prescribed anti-depressant medication for the plaintiff. This was because, in addition to the physical problems she was suffering, her psychological condition was deteriorating. The plaintiff was miserable and depressed about her situation and the constant pain she was suffering was becoming too much to bear.
19 In March 2008, the plaintiff attempted to return to work for two hours a day, three days per week. She also commenced some physiotherapy and hydrotherapy around this time. However, the problems she suffered in her left arm and hand continued to the point where her workload was cut back to two days per week, working two hours per day.
20 The problems in her left arm and hand continued to worsen throughout 2008 and the plaintiff ceased work in about June 2008. She continued to receive weekly payments of compensation from the defendant until March 2010.
21 The plaintiff’s treatment continued throughout the latter part of 2008. In particular, she continued to see Mr Murphy who referred her to see Dr Barry Rawicki, a Neurologist, who performed a nerve block in July 2008. Lyrica was also added to her medication regime. The plaintiff had two further nerve blocks performed by Dr Rawicki in March 2009 and in April 2009. However these procedures did not provide her with lasting benefits (affidavit of 14 July 2010).
22 The plaintiff’s treatment in 2009 also included consultations with Dr Erihana Ryan, a psychiatrist, and Ms Sue Givens, psychologist. With respect to her ongoing treatment, the plaintiff attends Dr Eapen, GP, once a month for prescriptions for Oxycontin (30 mills in the morning and 50 at night) and Oxynorm for when she has breakthrough pain. In addition, she takes Lyrica for nerve pain and Lexapro and Seroquel for anxiety and depression (transcript p. 16).
Medical opinion in relation to the nature of the injury
23 The plaintiff’s solicitors obtained reports from Dr Barry Rowicki, Dr Saleen Eapen, Dr Peter Blombery, Dr John Gill, Dr Erihana Ryan, Dr David Murphy and Dr Tony Kostos, all of whom diagnosed the plaintiff as suffering from CRPS, type 1. However, the defendant’s experts, Dr Dugal James, Dr Andrew Millar, Dr Daryl Nye and Dr Richard Prytula, were of the opinion that the plaintiff has developed a chronic pain syndrome (CPS).
24 There is no longer a dispute regarding the diagnosis of the plaintiff’s condition and the granting of a certificate for pain and suffering. However, I make a formal finding that I am satisfied on the balance of probabilities that the plaintiff suffers from CRPS Type 1 as a consequence of the accident at work on 8 August 2007.
25 In doing so, I have accepted the opinion of the plaintiff’s experts as to this diagnosis rather than that of the defendant’s experts. In particular, I have accepted the opinion of Dr Blombery, who is an expert in the field and gave evidence of observing positive signs for the diagnosis of CRPS, type 1, on his examination of the plaintiff on 23 December 2010 (see report of 26 January 2011), including that:
· her left hand was a little blotchy compared to the right;
· her left hand and arm were cooler than the right;
· she was diffusely tender on pressure up her left arm; and
· she was only briefly responsive to stellate ganglion block.
26 In addition, during his examination on 2 February 2012 (see report of 26 January 2012), Dr Blombery observed:
· significant spasm of the plaintiff’s trapezius muscles;
· she was tender all the way up her left arm;
· her left hand was paler and cooler than right with some swelling in the hand; and
· her left power hand grip was less than on right (report of 16 March 2012, transcript pp. 72-73).
27 Most importantly, I accept his evidence that these signs are not able to be manufactured but are outside the plaintiff’s control (transcript p. 73). In addition, that the symptoms fluctuate from time to time in all patients who have the disorder and “therefore one may well see a patient on one day who has no clinical signs of CRPS Type 1 when that’s not the diagnosis” (transcript p. 73). In my opinion, this may offer some explanation as to why the Medical Panel failed to diagnose CRPS Type 1.
28 In making my finding I have also taken into account that the plaintiff’s complaints regarding symptoms are consistent with a CPRS Type 1 diagnosis. In addition that when he saw the plaintiff in May 2008, Dr Rawicki observed signs (swelling, arm blotchy, blue and cold) consistent with a diagnosis of CRPS, type 1, and Dr Kosos observed sweating of the left hand and some muscle wasting.
Pain and suffering consequences of injury
29 In her affidavits and evidence to this court, the plaintiff gave evidence of suffering from the following symptoms:
· constant pain and stiffness in her left wrist, forearm, hand and fingers which varies in intensity (she has good and bad days) but it is always there to some degree.
· When the pain is severe she suffers a shooting, burning type of pain stemming from her hand and wrist to her left forearm which radiates up her left arm to her shoulder and then into the left side of her neck
· The pain is aggravated by any significance use of her left hand or arm or significant or repetitive movements of left wrist, hand or fingers and on occasions the pain flares for no apparent reason.
· There is a significant loss of strength in her left arm and hand with a loss of grip strength in her left hand and a loss of fine motor strength in her left hand and fingers.
· She experiences temperature changes in her left hand and colour changes (her left hand sometimes becomes blue and blotchy).
· She continues to occasionally experience excessive sweating of the left arm.
· The pain that she suffers continues to interrupt her sleep and she is lucky if she gets four or five good hours sleep a night.
· Her memory has become patchy and she has lost her ability to maintain her concentration for a long period of time.
30 Prior to the injury to her left arm, the plaintiff enjoyed snowboarding and skiing and many other out door activities. In addition, she was very involved in all of the sports and after school activities of her children. She managed all the chores around the house and led a busy family and social life. As a result of the symptoms referred to above, the plaintiff now takes fairly strong pain killers on a daily basis which affect her concentration and the type of work she is able to carry out.
31 I accept the plaintiff’s evidence regarding her pain and suffering and the effect of the injury on her domestic recreational and social activities. I am satisfied that the plaintiff was an active and fit woman before the injury and that as a consequence of the injury to her left arm she has lost the ability to be involved with her family in the manner in which she enjoyed before.
32 I accept that her injury has had a considerable impact on the plaintiff’s occupational recreational social and domestic activities. I accept the medical opinion that she can no longer work as a nurse and that it is devastating to her that she can no longer pursue that career.
33 Most importantly, I am satisfied that the plaintiff’s injury is permanent and that when judged in comparison with other cases in the range of possible impairments, the impairment to her left arm may fairly be described as more than significant or marked and as being at least very considerable.
Plaintiff’s case in relation to work capacity
34 The case for the plaintiff is that, due to the impairment to her left arm, she is permanently incapable of returning to her job as a nurse. However, it is conceded that she is capable of performing lighter part time work. In fact, in the middle of 2010, through a friend of hers (there was no employment available with the defendant) the plaintiff was able to obtain such alternative employment at Latrobe University.
35 The employment was as a casual tutor/lab assistant (nurse educator) at the Bendigo Campus of La Trobe University (the University) teaching student nurses. The plaintiff worked at this campus for 16 months, working various hours. She also marked exam papers from time to time (affidavit of 21 October 2011). However, she has not worked there since early August 2011 due to budget / funding issue at the University.
36 The plaintiff was employed on short term contracts, initially working four hours a week but then about 10 hours a week. At times, she did more hours if staff members were away. The most she did was 30 hours a week. She was paid approximately $40 per hour for this work and for the financial year ending 30 June 2011, she had gross earnings of $25,755.
37 The plaintiff’s case is that, on average, she only worked 15 to 18 hours per week and that the most she can realistically work without significantly aggravating her symptoms is around five to six hours per day, three days per week (ideally with a day long break in between the working days) with a total of 15 to 18 hours per week as a maximum (affidavit of 5 March 2012).
38 In November 2011, the plaintiff was offered two days a week with the University. Initially, she was told that it would be for five to eight hours per day but then this was changed to being five days in a row, five to eight hours a day. Based on her past experience, the plaintiff did not believe that she was going to be able to cope with these hours, so she declined the offer.
39 In support of her case regarding her work capacity, the plaintiff primarily relied on the following medical opinions:
40 Dr Peter Blombery (Consultant Physician) – that the plaintiff had a very significant impairment as a consequence of the CRPS, type 1, affecting her left arm. She would not now, or in the future, be able to return to her job as an operating theatre nurse. She would be able to do light work, such as the teaching work she was then doing, but not for full hours. Her prognosis for recovery was poor and it was unlikely there would be very much in the way of a change in the future with regard to her level of disability (reports of 26 January 2011 and 16 March 2012).
41 Dr Barry Rawicki (Neurologist/Rehabilitation Physician) – that the prognosis for resolution of the plaintiff’s pain was guarded at best and there was a significant prospect of her having ongoing chronic pain. Given the duration of her pain, it was very unlikely she would be able to return to her duties and it was likely she would remain with a permanent impairment and disability.
42 Dr John F. Gill (Psychiatrist) – that the plaintiff had developed an adjustment disorder with mixed anxiety and depressed mood secondary to the effects of the accident in 2007. She was capable of some part-time suitable employment which did not aggravate her physical condition (report of 26 January 2011).
43 Dr Erihana Ryan (Consultant Psychiatrist) – diagnosed the plaintiff as suffering from an adjustment reaction with depression and anxiety. He considered that, while she had made a very good response to the management of her depression and anxiety, she “remained vulnerable to emerging anxiety with regard to her requirements for a return to work and associated with pain” (report of 13 September 2011).
44 Dr David Murphy (Consultant Physician) – that the plaintiff had made some improvement in her symptoms over the four years he had seen her. However, he “did not expect there to be any significant change from here on” and that “she would continue to be troubled by pain and dysfunction of the left upper limb, which would cause a significant incapacity with respect to her ability to undertake work and usual lifestyle activities” (report of 18 October 2011).
45 Dr Saleen Eapen (General Practitioner) – that he doubted that the plaintiff could do her original job. Her condition was hard to treat and she “had lost her left arm function for her job as a theatre nurse which had mentally and physically put her in a very difficult position “(report of 6 March 2012).
46 Dr Tony Kostos (Rheumatologist) – that the plaintiff’s CRPS, type 1, had “considerable impact on her working and domestic activities and it was likely to be indefinite. She would never return to her pre-injury occupation as a registered nurse on a full-time or part-time basis. The plaintiff had returned to teaching and supervising activities in the nursing field which she managed to cope with on a restricted basis, but the worker clearly believes that she cannot undertake any additional hours (report of 10 January 2011).
47 Mr Bill Radley (Psychologist and Vocational Assessment Specialist) –the plaintiff had no current work capacity to return to her pre-injury employment or any similar employment. She had a capacity for a wider range of part-time employment of a more sedentary nature if she did some occupational training. Some of these jobs were part-time employment in alternative occupations such as nurse educator assistant (22 August 2011).
Defendants case in relation to work capacity
48 The case for the defendant is that the plaintiff is capable of working full time in lighter jobs, such as her job at the University as a nurse educator. With respect to other employment options, the defendant relied on a vocational assessment from Konekt (of 12 November 2009) which identified jobs such as immunisation nurse, after school carer, medical receptionist, pathology collector, employment consultant and program delivery officer as being suitable for the plaintiff after retraining.
49 The defendant relied on the following opinions:
50 Mr Dugal James (Orthopaedic Surgeon) – who diagnosed the plaintiff as having CPS, was optimistic that she would make a full recovery with the passage of time (report of 20 December 2007).
51 Dr Andrew Miller (Occupational Health Consultant) – who was also of the opinion that the plaintiff had lapsed into a chronic pain state and was of the opinion that she was capable of working with restrictions (report of 5 March 2008).
52 Dr Daryl Nye (Neurosurgeon) – disputed the diagnosis of CRPS Type 1 In his opinion, the plaintiff had developed a CPS associated with the disuse of the right arm and her disorder did not have an organic explanation. While in his report of 1 September 2009 he was of the opinion that the plaintiff was not fit for alternative employment, he did not consider that she was necessarily totally and permanently incapacitated for employment (report of 1 September 2009).
53 After observing surveillance taken of the plaintiff, he commented that “a number of situations showed normal use of the left upper limb was evident and quite inconsistent with the claim and manifest at the time of examination”. These observations confirmed his conclusion that “the disability was not a consequence of any organic condition and he thought that there was exaggeration, construction and malingering” (report of 3 September 2009).
54 Dr Roy Karna (Rheumatologist) – described the plaintiff as being “a pleasant, co-operative individual”. He was also of the opinion that the plaintiff had suffered a soft tissue injury and then had developed a CPS(report of 14 August 2009).
55 Dr Richard Prytula (Psychiatrist) – diagnosed the plaintiff as having an adjustment disorder with depressive and anxiety symptoms. After observing the video surveillance (which showed the plaintiff performing a number of tasks with her left hand), his conclusion was that the plaintiff’s presentation during his assessment exaggerated her dysfunction and gave a mistaken impression. The difference being that in the assessment she had treated her left arm as though it was “completely useless” and sat with it flexed at 90 degrees with her hand in a woollen mitt. In his opinion the plaintiff had a current work capacity.
56 The Medical Panel – concluded that the plaintiff has a nought per cent whole person impairment resulting from the accepted Complex Regional Pain Syndrome injury when assessed in accordance with s.91 of the Act.
57 The video surveillance – the defendant also relied on the video surveillance taken in 2009, 2010 and 2011 as supporting their case that the plaintiff has a greater work capacity than claimed. These surveillance videos showed the plaintiff performing various functions with no obvious signs of pain. The video surveillance included footage which showed the plaintiff:
· pulling up her jeans together with her right hand;
· holding a box entirely with her left hand while opening the boot of a car;
· carrying a package with left hand while entering the house;
· unzipping her handbag using her left hand;
· carrying a young child (approx 18 months old) with left hand;
· closing the car door forcefully by slamming it;
· carrying a purse;
· pulling down her jumper with her left hand; and
· moving a small object from one hand to the other;
58 The plaintiff’s case is that this video footage represents her capacity from time to time but that it is a variable capacity. Some days were better and some days were worst than that. She could not use her left arm as she used her right arm as she got increased pain and did not have a lot of strength. If she used her arm when there was pain, the pain increased and she needed to take more medication which made her more drowsy (transcript p. 17).
59 When Mr Blombery was cross-examined about the plaintiff’s capacity to do things with her left hand in the video, he agreed that, with respect to the plaintiff ability to perform daily activities, he was dependent on what she told him In addition, that with respect to her work capacity he was dependent on her history to him and her veracity as to whether she was capable of doing more hours. (transcript p. 57).
Finding in relation to the plaintiff’s work capacity
60 I accept that due to the impairment to her left arm, the plaintiff can no longer perform her pre-injury job as a nurse. This finding is supported by most of the plaintiff’s medical experts, who all accepted that the plaintiff had CRPS, type 1. All of the plaintiff’s medical experts were either of the opinion that she could no longer do her pre-injury work or that it was unlikely that she would be able to do it.
61 Consequently, I reject the opinions of the defendant’s experts as to the plaintiff’s work capacity. These opinions are no doubt influenced by their diagnosis that she had a CPS rather than an organic injury . With respect to Dr Prytula and Dr Nye, they clearly formed an adverse opinion of the plaintiff after viewing the video footage.
62 However, the plaintiff struck me as being an intelligent woman, frank ,down to earth and capable of making a realistic assessment of her impairment. There was nothing in the video which would lead me to change this opinion. The plaintiff was not seen engaging in any vigorous activity which was inconsistent with her impairment. While holding the child in her left arm seemed inappropriate, she could not remember how she picked the child up and there was no evidence as to how long she held the child in such a position.
63 After carefully considering all the evidence, including the video evidence, I accept that the plaintiff has a capacity to work between 15 to 20 hours in light employment such as the nurse educator job she performed at La Trobe University. In doing so, I have also taken into account that:
· the plaintiff has been capable of working up to 18 hours in the past in this job and her evidence was that “most of the time” she could do the hours (transcript p. 100);
· with respect to the extra two hours, the plaintiff told Mr Radley that she believed that the most she could work was a maximum of 20 hours a week;
· there was support for reduced hours from Mr Blombery who was of the opinion that the plaintiff could do light work but not for full hours, Dr Gill who referred to part-time employment as being suitable and Dr Kostos who reported that the plaintiff “clearly believes that she cannot undertake additional hours”.
· the plaintiff is taking quite heavy narcotic medications which would affect her concentration and cognition.
Whether the plaintiff has established the requisite loss of income
The Act
64 Pursuant to s. 134AB(38)(e) of the Act, the plaintiff has the burden of establishing that she has, at the date of the application hearing, a loss of earning capacity of 40% or more and that the loss will continue permanently. The measurement of the claimed loss of earning capacity, as prescribed by paragraph 134AB(38)(f), necessitates a comparison of two matters:
(a) the income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“the after injury earnings”)
and
(b) the income that the worker was earning or was capable of earning “during that part of the period within 3 years before and three years after the injury that most fairly reflects the workers earning capacity had the injury not occurred”.
The plaintiff’s case
65 On 30 March 2003 and on 29 June 2003, the plaintiff took up a fixed term part-time contract with a minimum of 20 hours per week in the day procedure unit. The payroll shows that at the time of her injury, her substantive or normal position was Registered Nurse Division 1, Grade 2. However, it also shows her occupying a concurrent position of Associate Charge Nurse for the period 21 May to 26 August 2007 and from 31 July 2007 to December 2007.
66 The plaintiff’s case on opening was that the level of earnings for the purpose of demonstrating her earning capacity three years before and three years after, the injury are the earnings that the plaintiff was receiving when undertaking the higher nursing duties from 21 May 2007.
67 In that 12 week period, the plaintiff received $12,797 with an average of $1,066. In the last three of those pay periods the plaintiff’s wage went up from $29.60 per hour to $30.49 per hour (an increase of something in the range of three per cent).If the increase was taken into account in the last three pay periods, the plaintiff was earning at the rate of approximately $1,100 per week immediately prior to her injury. .
68 By reason of an award under which she was working, the plaintiff would be subject to a 3.25 per cent increase each year, so the plaintiff’s earning capacity, on that basis, is annualised at $63,092 or approximately $720 per week, this being the 60 per cent earning rate which is relevant for the court’s consideration.
69 The work that the plaintiff did at the University as a Nurse Educator, for the financial year 30 June 2011 produced an income of $10,494. For the whole of the previous year, it was approximately $25,000. On this basis, it was submitted that her actual earnings in the past were well below the 60 per cent figure.
70 In support of the plaintiff’s case that her earning capacity was at the higher rate, it was submitted that the “best reflection of somebody’s capacity was to look at what they were earning at the time of their injury and did they have the capacity to do the job” (transcript p. 148). Further that there had not been any challenge by the defendant regarding the plaintiff’s capacity to work in the Associate Charge Nurse role for a number of weeks prior to the injury (transcript p. 147). In addition, that looking at the plaintiff domestic circumstances, she would have increased her hours rather than decreased them if she had not been injured (transcript p. 151).
71 In addition, senior counsel for the plaintiff mounted an argument for a somewhat novel alternative approach. This was that the court should take the Nurse Educator figure as the plaintiff’s pre-injury earning capacity. This was because the work she had been doing at the University was within three years of the date of her injury and under the Act the court was required to look at the earnings capacity of the plaintiff as reflected in the three years before and three years after.
The defendant’s case
72 The defendant’s case, with respect to this alternative approach, is in essence that this interpretation fails to take into account that the statutory formula requires the court to calculate the without injury earnings by reference to that period within three years before and three years after the injury as most fairly reflects the workers capacity had there been no injury. As the plaintiff was only doing the Nurse Educator job due to the injury her income in this job could not be a reflection of her pre-injury capacity.
73 With respect to the submission that the plaintiff’s higher income as an Associate Charge Nurse was a fair reflection of her earning capacity, the defendant’s case was that she was on a temporary contract acting in the higher position and that in the normal course of events she would have reverted back to being a Division 1 Nurse at the conclusion of the contract period. Consequently it was contended that her wages as a Registered Nurse Division 1 was a fair reflection of her earning capacity.
74 In support of this contention, the defendant relied on the affidavit of Gary Dewhurst (the Human Resources Manager at the Hospital), sworn on 25 October 2011 (DCB p. 084), to the effect that, unless the plaintiff’s acting position was extended, she would have reverted to her substantive position at the expiry of the acting position. In addition, on the plaintiff’s evidence that, in 2007, she was acting in the position of associate charge nurse and knew that unless the position was extended she would have to go back to her substantive position (Division One Nurse) at the end of that period of time (transcript p. 22).
75 While this was the defendant’s preferred option for calculating the plaintiff’s “but for injury” earnings, the defendant provided the court with three different scenarios for calculating these earnings.
Scenario one
76 Scenario one is based on the premise that a fair reflection of the plaintiff’s earning capacity is that she would have continued to work as a Division 1 Nurse, working 22.7 hours per week based on her average working hours from 1 January 2006 to 31 December 2006. The standard hourly rate for that period is $21.58. She would be entitled to an average of $10 per week for overtime pay, $10.63 per week for shift change allowance, $12.70 per week for late shift allowance, $8.56 for weekend penalties and $1.04 per week for laundry allowance, totalling a gross figure of $539.21 per week and $28,038 per annum.
77 If annualised by 3.25 per cent per year, the plaintiff would earn $31,864.51 gross per annum in 2010, $612.77 gross per week, 60 per cent of which is $19,118.40 gross per annum or $367.66 gross per week.
Scenario two
78 Is based on the premise that a the fair reflection of the plaintiff’s earning capacity is as an associate charge nurse. The plaintiff’s pre-injury average hours per week for the 12 months leading to her injury,(ie from 13 August 2006 to 13 August 2007) was 27.5 hours. Assuming she would have been working the same number of hours but in the capacity of an associate charge nurse, her average weekly earnings would be $946.55 gross per week, $49,220 per annum, as at 2010. 60 per cent of this figure is $29,532 gross per annum or $567.92 gross per week.
Scenario three
79 Is based on the plaintiff’s actual earnings 12 months prior to injury. From 8 August 2006 to 8 August 2007, the plaintiff’s average weekly earnings were $828.46 gross per week, $43,080 gross per annum. Using that figure and annualised by 3.25 per cent to 2010, the plaintiff would be earning $911.89 gross per week, $47,418.20 gross per annum, 60 per cent of which is $28,450.92 gross per annum or $547.13 gross per week.
After injury capacity
80 Pursuant to s. 134AB(38)(g), the worker will not establish the loss of earning capacity threshold if the worker has, or would have after rehabilitation or retraining, a capacity for any employment including alternative or additional employment which would result in the worker earning more than 60 per cent of his or her gross pre-injury income.
81 The defendant provided the following three scenarios with respect to the plaintiffs after injury capacity to earn in suitable employment:
Scenario A
82 Scenario A is based on the premise that the plaintiff is capable of working 30 hours per week as an educator at Latrobe University. The average hourly rate from 1 June 2011 to the date the plaintiff last worked at the University is $50.80 per hour. The defendant submits the plaintiff has a capacity to earn $50.80 per hour multiplied by 30 hours, which equals $1,524 gross per week or $79,248 gross per annum.
83 If the court accepts the plaintiff’s evidence of $40 per hour, then the defendant submits that the plaintiff has a capacity to earn $40 per hour multiplied by 30 hours equals $1,200 gross per week or $62,400 gross per annum.
Scenario B
84 Scenario B is based on the premise that the plaintiff is capable of working 20 hours per week as a nurse educator. Using the Latrobe University’s average pay rate of $50.80 per hour, the defendant submits that the plaintiff has a capacity to earn $50.80 per hour multiplied by 20 hours, which equals $1,016 gross per week or $52,832 gross per annum.
85 If the court accepts the plaintiff’s evidence of $40 per hour, then the defendant submits the plaintiff has a capacity to earn $40 per hour, multiplied by 20 hours, which equals $800 gross per week or $41,600 gross per annum.
Scenario C
86 If the plaintiff is only capable of earning 75 per cent of the average wage of a vocational educator, (see vocational assessment report p. 75 of DCB). This equates to $1,214 multiplied by 75 per cent, which equals $910 gross per week or $47,320 gross per annum.
Finding as to whether plaintiff has established the requisite loss
87 Dealing firstly with the plaintiff’s alternative submission that her income as a nurse educator is a fair reflection of her pre-injury capacity, I reject this submission, as did senior counsel for the defendant in his final submissions. I refer to Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, where Phillips JA stated with reference to without injury earnings that:
“The latter without injury earnings are to be calculated by reference to that part of the period within three years after the injury as most fairly reflects the worker’s earning capacity had there been no injury. The court is therefore required to go well beyond actual pre-injury earnings and consider on the hypothesis that the worker was and remained free of compensable injury at base (emphasis added), both earnings and capacity to earn during that portion of the six years marked as most fairly reflects the workers earning capacity. As it stands this task is not inconsiderable” (Barwon Spinners at para. 23).
88 The submission for the plaintiff fails to take into account that the purpose of comparing the three years before and three years after the injury is to establish the earnings which “most fairly reflect the workers earning capacity had the injury not occurred”. Therefore, although the plaintiff worked as a nurse educator within the three year period after the injury her income cannot be a fair reflection of her pre-injury capacity.
89 The relevant income to consider in the three year period after the injury is what she would have been earning without injury. Her income as a nurse educator is only be relevant for the purposes of establishing whether or not she retains a capacity for any employment, including alternative or additional employment which would result in her earning more than 60% of her gross pre-injury income.
90 In deciding which earnings most fairly reflect the plaintiff’s pre -injury earning capacity, I consider that it is appropriate to take into account that the plaintiff had shown that she was capable of working of working as an associate charge nurse during part of the three year period prior to the injury.
91 Although I accept that the plaintiff would ordinarily revert to being a division 1 nurse at the end of her contract, I also accept that given she demonstrated that she capacity to do the job, if there was a vacancy she may well have been asked to fill the role again.
92 In these circumstances, I accept that the defendant’s Scenario 2 which is based on the plaintiff’s actual hours (27.5) as an associate charge nurse most fairly reflects her pre-injury earnings, being an average of $567.92 gross per week. This calculation allows her the higher salary based on the hours she actually worked. It takes into account that she has not demonstrated that she was capable or willing to work longer hours in this job.
93 In this respect, I have also noted that prior to her injury, rather than increasing her hours with the employer, the plaintiff had obtained work of a lighter nature in a surgery at a rate per hour which was considerably lower than both her pre-injury work as a nurse and her after injury work as a nurse educator.
94 With respect to the plaintiff’s after injury earnings, I accept the defendant’s Scenario B. As I accept that the plaintiff has the capacity to work as a Nurse Educator for 20 hours (at $50.80 per hour) per week, earning $1,016 per week, she is capable of earning more than 60 per cent of her gross pre-injury income (see para. 93). Even if she only earned $40 per hour in this job, she would earn $800 per week which is more than 60 per cent of her gross pre-injury earnings.
95 I am not satisfied that the plaintiff’s impairment has resulted in a loss of earning capacity consequences which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being at least very considerable.
96 Therefore, my orders are as follows:
· I grant leave for the plaintiff to bring proceedings at common law to recover damages for pain and suffering arising out of and in the course of her employment with St John of God Hospital.
· I refuse leave for the plaintiff to bring proceedings in respect of loss of earning capacity.
0
1
0