Jolley v Healthscope Ltd
[2013] VCC 276
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00449
| NOREEN JOLLEY | Plaintiff |
| v | |
| HEALTHSCOPE LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 12 March 2013 | |
DATE OF JUDGMENT: | 26 March 2013 | |
CASE MAY BE CITED AS: | Jolley v Healthscope Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 276 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the left wrist – whether the consequences 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; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
1 Noreen Jolley alleges that she injured her left wrist in the course of her employment with the defendant when she slipped and fell on 7 February 2009. She seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of those injuries.
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:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Ms Jolley’s left upper limb.
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 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)(b) and (c)
7 Ms Jolley submits that the pain and suffering consequences of her injuries can fairly be described as being at least very considerable. The defendant denies this is so.
Background
8 Ms Jolley is aged seventy. In 1960, she qualified as a State Enrolled Nurse, Division 2, and, save for time off in the 1960s with young children, has worked in that capacity ever since.
9 In about 2005, she commenced employment with the defendant at the Cotham Private Hospital. She normally worked four seven-and-a-half hour shifts per week.
10 In addition, she worked one day a week for a nursing agency, PCC. Her PCC work involved psychiatric nursing, principally at the Melbourne Clinic, but elsewhere on occasions. She generally worked at least one seven-and-a-half hour shift per week for PCC in addition to her four shifts with the defendant.
Accident and Treatment
11 On 7 February 2009, whilst at work at the Cotham Private Hospital, Ms Jolley fell as a consequence of catching her foot on some raised carpet. She suffered pain immediately in her left hand and arm. She saw a doctor soon after and was told that her wrist was broken. She was taken to the Austin Hospital. An x-ray revealed a fracture. She was given painkillers and, in due course, placed in a plaster cast.
12 The plaster cast proved extremely painful. It was changed some five times over a six-week period. The pain from her wrist extended up her left arm and into the left shoulder. She was placed on strong analgesic medication. She suffered from nausea as a consequence of these medications.
13 In due course, the plaster cast was removed. She noted wasting of her forearm. She noted excessive sweating of her left hand. Her left wrist was very sensitive to touch. She had, for a time, discolouration of the wrist. She continued to experience pain. She was referred by her general practitioner to Dr Peter Courtney, an anaesthetist and specialist in pain medicine. He made a diagnosis of Complex Regional Pain Syndrome (“CRPS”). He recommended nerve blocks, but she was nervous about this and declined that treatment. She was treated regularly with physiotherapy and a wax bath of her left arm. She used heat packs. She underwent massage and had electrotherapy. Her pain continued.
14 In January 2010, Ms Jolley returned to work, initially performing light office duties, building up to working full-time and performing normal nursing duties. Her evidence is that she continued to experience left wrist, arm and shoulder pain.
15 Despite these problems, Ms Jolley has continued to work her pre-injury shifts for the defendant and for PCC. She conceded that the duties she performed at present were basically the same duties as those performed pre-injury. She did say that she avoided some of the heavier lifting and, from time to time, was given some assistance by her fellow nurses. She agreed that the defendant had a no lifting policy and that lifting equipment was used at the Cotham Private Hospital.
16 The amount of the PCC agency work performed by her depends on what work is available and offered to her. In some weeks there is no work available from the agency. In other weeks, three or even four shifts are offered to her. She generally accepted all shifts offered to her by PCC. Wage records indicating the number of shifts worked by Ms Jolley for the agency disclose that in the month of November 2012, she worked eight shifts (that is, an average of two per week); in December 2012, she worked ten shifts; in January 2013, she worked no shifts and in February 2013 she worked ten shifts.[4]
[4]Exhibit 1, DCB 29−32
17 Included in the shifts referred to above were four shifts for the week ending 24 February 2013 and four shifts for the week ending 2 December 2012. In a number of other weeks, Ms Jolley worked more than one shift for PCC. Her evidence was that, if she worked more than one shift with PCC, she would generally do so by working her normal seven-and-a-half-hour shift at the Cotham Private Hospital for the defendant and follow on with a second shift on the same day with PCC.
18 Ms Jolley’s evidence was that she enjoyed her work with both the defendant and with PCC. She intended to continue working as long as she could. There was no evidence as to her anticipated retirement age.
19 She now takes only Panadol Osteo (a non-prescription medication available over the counter) each day, sometimes twice a day.
20 Ms Jolley last saw Dr Courtney in June 2009. She has not seen any specialist in the 3 ½ years since.
21 Although Ms Jolley gave evidence that her sleep was disrupted by left arm pain, she had not requested any medication from her general practitioner to assist her sleeping.
22 She underwent physiotherapy from 2009. Her evidence was that this was terminated by the WorkCover claims agent in 2010. I was advised by counsel for the parties that solicitors acting on her behalf challenged that termination and the matter had been the subject of a conciliation conference. I was informed that, as a consequence of that conference, the claims agent agreed to reinstate funding for physiotherapy. Ms Jolley, however, maintained that she had never been made aware of that reversal. Accordingly, she had not sought physiotherapy treatment at any time since the 2010 termination.
23 Ms Jolley currently lives alone. She performs all her cooking, cleaning, washing and ironing. She has a small garden and she looks after it herself. She generally mows the lawn, although from time to time a relative or a neighbour does this for her.
24 She is right hand dominant.
Diagnosis of Injury
25 Medical evidence concerning Ms Jolley’s injury is largely non-contentious. X‑rays revealed an intra-articular fracture of the distal left radius (described as a Colles fracture). The fracture was mildly mal-united with slight loss of radial angle.
26 Complicating matters, at least initially, was that there was a finding by Ms Jolley’s general practitioner, Dr Ward, and Dr Courtney, that she had developed CRPS, which was causing hyper-sensitivity of and pain in the wrist.
27 In December 2012, a hand surgeon, Mr Damian Ireland, examined Ms Jolley on a medico-legal basis at the request of her solicitors. He found bilateral basal thumb joint prominence indicative of osteoarthritis, which he considered was unrelated to the wrist fracture. Nevertheless, he considered that Ms Jolley was likely to develop traumatic arthritis due to the intra-articular nature of the fracture and the slight mal-union of the fracture of her left wrist.
28 Mr Ireland considered that she was then suffering from mild persisting symptoms of CRPS. She had mild restriction of motion of her left wrist and some weakness of grip strength. He considered that the residual symptoms of the CRPS were likely to dissipate within the following six to twelve months.
29 Dr Kevin Fraser, rheumatologist, examined Ms Jolley at the request of the defendant’s solicitors in January 2013. He acknowledged the fracture of the distal left radius, and considered that the injury had been complicated by CRPS. Further, he thought that Ms Jolley may have developed osteoarthritis of the left wrist secondary to the original injury. However, he considered that she had over-reacted upon his physical examination.
30 Dr Fraser had not seen the x-rays arranged by Mr Ireland in December 2012. The radiologist’s report of those x-rays was not tendered. However, Mr Ireland considered that the x-ray showed that the fracture was mildly mal-united and, as I understand it, it was on this basis that he considered that she was likely to develop traumatic arthritis as a consequence. Dr Fraser, not having seen that x-ray, did not refer to it or to Mr Ireland’s opinion.
31 I accept Mr Ireland’s evidence that Ms Jolley is likely to develop traumatic arthritis due to the intra-articular nature of the fracture and the slight mal-union of it. However, there was no evidence from him or any other practitioner as to when that condition might develop, or as to the extent of symptoms she would be likely to experience.
32 I note the opinions of Dr Fraser and of Mr Brendan Dooley, orthopaedic surgeon, that there was little, if any, evidence of continuing CRPS when they examined Ms Jolley in January 2013 and November 2010 respectively. These views are consistent with those of Mr Ireland.
Consequences of Injury
33 Assessment of the consequences of Ms Jolley’s injury inevitably involves assessment of her credit as a witness. I considered her to be a frank and honest witness, who at no time attempted to exaggerate her symptoms or the consequences of her injury. Counsel for the defendant did not submit otherwise.
34 I find the judgment of Maxwell P in Haden Engineering Pty Ltd v McKinnon[5] to be helpful in this regard.
[5](2010) 31 VR 1 at paragraphs 9-17
35 Here, Ms Jolley is a seventy-year old woman who is still working, on a full-time basis, as a nurse. She has no plans for retirement in the near future. Those matters are significant and are, in my view, an indication that the consequences of her injury could not fairly be described as being more than marked or significant, nor as being at least very considerable. However, her ability to continue working full time in an active occupation well past the age at which many persons retire is not conclusive as to the issue to be determined here. It is however an important factor.
36 Counsel for Ms Jolley submits, and I accept, that the consequences of her injury consist of the following:
(a) She experiences pain which is exacerbated by her activities at work and at home. She suffers from cramps in her forearm and fingers. Whilst she previously suffered symptoms of CRPS, I accept Mr Ireland’s evidence that these now appear only to be mild and likely to dissipate.
(b) Her pain requires her to take daily paracetamol. In addition, she uses hot and cold packs.
(c) For a year or so, she had physiotherapy treatment, which was helpful. This treatment was terminated by the WorkCover claims agent, but that decision was reversed following a conciliation process. Unlikely though it seems, Ms Jolley was not advised of that reversal and has not been aware of her entitlement to physiotherapy treatment as part of her WorkCover benefits. She may resume such treatment in the future although she gave no evidence of such intention.
(d) Her sleep is disturbed because of her forearm and hand pain, although not to the extent that she has sought medication from her general practitioner to assist.
(e) She has lost some dexterity in her left non-dominant hand. She frequently drops things. She has difficulty using the hand to open jars and the like. However, there was no evidence that those difficulties have been such as to interfere with her duties as a nurse.
(f) Her ability to tend to her garden is restricted to a degree. She does do gardening, but it is now a chore rather than a pleasure, as it had been pre-injury. She has been able to start and use a motor mower to mow her lawn, although this is sometimes done by relatives or by a neighbour.
(g) She has difficulty driving a motor vehicle for lengthy periods. She has reduced her driving accordingly and now rarely drives longer distances to the country, as she did pre-injury.
(h) She has some difficulty performing household chores. She lives alone and does attend to all of her cooking, washing, cleaning, ironing and the like. However, these tasks now take longer. She does them in stages rather than continuously as she had done pre injury.
(i) She previously played quoits. She is right handed and threw with her right hand. The remaining quoits, up to five in number, were held on the left arm. She found this painful and has given up quoits.
(j) She has become a more private person, socialising less. However, I place little weight on this as it does not appear to be a consequence of any physical injury.
37 I take into account that some persons are more stoical than others and Ms Jolley appears to fit into that category. She is a person who has been prepared to put up with a degree of pain and discomfort in order to maintain her employment. She enjoys her employment. Her injury is not to be viewed as any less serious merely because she has managed to remain more active than might have been expected, given the nature of her injury and the level of her pain.[6]
[6]See Haden Engineering v McKinnon (supra) at paragraph 13; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 47
38 I take into account that there was no evidence that, without injury, she would have been doing anything else in terms of employment other than her current work at the Cotham Private Hospital and with the PCC agency.
39 Looking at the evidence as a whole, I am not satisfied that Ms Jolley has established that the consequences of her injury are more than significant or marked and at least very considerable.
40 She has been able to continue in employment on a full-time basis. Regularly, she has worked seven, or even eight shifts per week, involving double shifts on some days.
41 Whilst I accept that she experiences some pain, both in the course of employment and in performing her home duties, it is important that she is able to work and perform her home duties with the assistance of minimal medication.
42 I accept that some time ago Ms Jolley ceased playing quoits, although she does not appear to have attempted to return to that activity in recent times as her CRPS symptoms improved. She may be able to do so in the future. There was no medical evidence relating to any inability to handle quoits.
43 The consequences of her injuries might well be described as marked or even significant. However, I am not satisfied, on all of the evidence, that they can fairly be described as more than significant or marked and as being at least very considerable.
Conclusion
44 For the reasons expressed above, I am not satisfied that Ms Jolley has established that she has suffered a “serious injury” as that term is defined in the Act.
45 Accordingly, her application is dismissed.
46 I shall hear the parties in respect of costs.
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