Kaur v Victorian WorkCover Authority
[2013] VCC 1203
•13 September 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-12-04250
| HARPREET KAUR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2013 | |
DATE OF JUDGMENT: | 13 September 2013 | |
CASE MAY BE CITED AS: | Kaur v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1203 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Henry Carus & Associates |
| For the Defendant | Mr N B Chamings | Thomsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment as a personal carer with her employer, The Emily Monash Home for the Aged Inc, on 10 March 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the back.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 24 February 2012 and 19 July 2013, and an affidavit of her husband, Garpareet Singh Kandala, sworn on 25 July 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with her employer;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairments to the back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[5]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[6]
[5]s134AB(38)(j) of the Act
[6] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[7]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[8]
[7]Ibid
[8](ibid) at [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[9]
[9]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
The Issues
14 Counsel for the defendant informed the Court that in this case, the nature of the plaintiff’s injury is in issue. Counsel said the plaintiff has suffered a soft-tissue injury.
15 Secondly, the plaintiff has not sustained a “serious injury” as the consequences of the injury are not described as being “more than significant or marked and as being at least very considerable”.
Investigations
16 On 6 May 2009, a CT scan of the plaintiff’s lumbar spine showed:
“At L5-S1, there is mild broad-based posterior and left posterolateral disc bulge, with marginal contact on the left S1 nerve, although this does not appear displaced.
There is mild posterior disc bulge at L4-5, but there is no significant canal stenosis or focal disc prolapse.”
17 On 12 October 2009, an MRI scan of the lumbar spine showed:
“Minor annular bulge at L4-5 without neural compromise.
No left sided neural compression, nor tear of the annulus.”
The Plaintiff’s medical reports
Mr Patrick Chan
18 Mr Chan, neurosurgeon, treated the plaintiff on referral from the plaintiff’s general practitioner.
19 In March 2010, Mr Chan said the plaintiff suffered from mechanical axial lower back pain with referred pain into her left leg. He said there is underlying mild L4-5 degenerative disc bulge without neurocompression on MRI of the lumbosacral spine. He accepted the injury was work related and said the plaintiff had a current capacity for modified duties with the following restrictions: avoidance of weight loading, prolonged sitting and excessive bending in the lower back. Dr Chan referred the plaintiff to a pain rehabilitation physician.
Dr Eugene Kalnin
20 In June 2013, Dr Kalnin, general practitioner, confirmed that she had been treating the plaintiff since January 2008. On 30 March 2009, the plaintiff reported a work injury at an aged-care centre on 10 March 2009.
21 Dr Kalnin confirmed that in February 2010, the plaintiff complained of tenderness over L5-S1 on the left side. She was referred to Dr Brian Lovell and Mr Patrick Chan, who referred her to a pain rehabilitation physician, which was not proceeded with due to lack of approval by the insurer. The plaintiff commenced hydrotherapy, and in May 2010, she commenced light duties. After two months holiday, she returned to work in August 2010, seeking increased hours of work.
22 In June 2013, Dr Kalnin said the plaintiff rarely used any pain relief and there had never been requests for strong painkillers. The plaintiff occasionally used physiotherapy or hydrotherapy. She thought the plaintiff had adjusted to her current work regime, as well as studying for her nursing degree. She said the plaintiff’s injury was longstanding.
Mr John O’Brien
23 In February 2011, Mr O’Brien, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitor.
24 Mr O’Brien diagnosed a non-specific back pain but said the most likely aetiology was discogenic. He accepted that employment was a significant contributing factor to the plaintiff’s current clinical condition, which he described as stable. He remained guarded in relation to the plaintiff’s prognosis and said, in view of it being two years since the injury, one could regard the plaintiff’s current pain as chronic. He said the plaintiff remained disabled in terms of her physical activity in the form of any heavy physical stress placed upon the lumbar spine. She was not capable of undertaking unrestricted physical employment. He thought her employment of light duties would be permanent. He accepted that the plaintiff was reasonably restricted in her general domestic, social and recreational activities, and thought that would continue. He said the plaintiff had sustained a considerable injury which will have a lasting effect on all aspects of her lifestyle.
Mr Russell Miller
25 In August 2013, Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor.
26 Mr Miller noted the plaintiff was performing restricted duties which involved working four days in a low-care area where the work is less physical and does not involve repetitive bending or lifting. In addition, the plaintiff works one day where she feeds patients, and this is effectively non-physical work. She was currently working approximately 60 hours a fortnight, whereas prior to her injury, she was working approximately 75.5 hours per fortnight. She reported that she regularly uses Panadol and hot packs and has local massage by her husband. She no longer has physiotherapy or hydrotherapy but uses a soft lumbar support.
27 Mr Miller diagnosed a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine with probable disc injury at L4-5 level. There was no evidence of radiculopathy or neurological deficit. He said the plaintiff would be unlikely to be assisted by surgery. He thought the plaintiff had some pre-existing but asymptomatic disease in the lumbar spine which had been rendered symptomatic and further superimposed injury had been caused by the work event in March 2009. He said her current conservative regime is appropriate and will need to continue indefinitely. He said the plaintiff has significant symptoms in the lumbar spine and will have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weights of more than 5 kilograms, and she will have a requirement to shift her posture on a regular basis. These restrictions are permanent and work related.
28 The plaintiff reported that she is able to drive a motor vehicle but has some difficulty sitting for prolonged periods. She is able to undertake the majority of the domestic activities. Mr Miller said the plaintiff will have some reduction in her capacity for heavy domestic and gardening activities as a result of the orthopaedic injury. She had previously enjoyed badminton and social basketball with her husband but has difficulties with these activities. It was Mr Miller’s view that the plaintiff will have a significant reduction in her capacity for pre-injury leisure and recreational activity. Mr Miller did not obtain a history of the plaintiff undertaking study to qualify her as an enrolled nurse while working 62 hours per fortnight.
Mr Brian Dooley
29 In June 2010, Mr Dooley, orthopaedic surgeon, reported to the defendant’s insurer.
30 Mr Dooley diagnosed injury to the L4-5 intervertebral disc with referred non-verifiable radicular pain into the left leg but recovering naturally. He made an assessment of total and physical impairment of 5 per cent whole person. He thought the plaintiff would make a full or near full recovery naturally.
The Defendant’s medical reports
Dr David Barton
31 In 2010 and 2013, Dr Barton, occupational physician, examined the plaintiff at the request of the defendant’s solicitors.
32 In 2010, Dr Barton thought the plaintiff did not present with any clear evidence of any physical problem. In 2013, he said the plaintiff presented fit and well, who should be able to do normal personal care work on a full-time basis. He thought the plaintiff required more appropriate reassurance and encouragement from practitioners to get her back to normal light activities, including normal work. He said his examination findings showed no particular evidence of any ongoing problem. He thought her prognosis was excellent and said there was no relevant aggravation of any pre-existing condition. He could see no particular reason why she could not work normally doing normal hours and duties. He said there was no particular evidence of any deliberate exaggeration of her problems. On examination, she presented in a straightforward manner.
Video surveillance
33 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was undertaken. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
34 The plaintiff presented as a young woman who was keen to return to her work. Her evidence was straightforward and unembellished. There was no suggestion from any of the doctors whom she had seen that she was anything other than a straightforward person. There was no significant challenge to her general credibility. She was hesitant on occasion, but I gained the impression that was due to the fact that she was uncomfortable with the legal process.
35 Overall, the plaintiff impressed me as a credible witness.
Analysis of the evidence
36 All doctors accepted the plaintiff suffered a work-related injury. Counsel for the defendant submitted that the plaintiff suffered a soft-tissue injury.
37 Dr Barton said that, on examination, there was no particular evidence of an ongoing physical problem. On balance, I prefer the views of the orthopaedic surgeons to Dr Barton, occupational physician. Accordingly, I accept that the plaintiff has suffered a physical injury.
38 On the balance of probabilities, I accept that the plaintiff suffered an injury to her low back, which is most likely discogenic in nature. This is supported by the majority of the medical evidence. Mr Chan said there was underlying mild L4-5 degenerative disc bulge but there was no neurocompression. Mr Miller said the plaintiff suffered a musculoligamentous strain to the lumbar spine with probable disc injury at L4-5. Mr Dooley said there was an injury to the L4-5 intervertebral disc in the left side. Mr O’Brien said that the plaintiff had non-specific back pain, most likely discogenic. Accordingly, I do not accept the submission of Counsel for the defendant that the plaintiff suffered a soft-tissue injury.
39 Mr Miller was the only doctor to suggest that the plaintiff had suffered an aggravation of a degenerative disease in the lumbar spine. There was no medical evidence that, prior to the work injury, the plaintiff was complaining of low-back pain. In fact, the plaintiff reported to Mr Miller that she had no prior back or medical problems. Further, Dr Barton said there was no relevant aggravation of pre-existing condition. I accept that at the time of the work injury, the plaintiff was symptom free in respect to the low back. I accept the consequences the plaintiff described are as a result of the injury at work.
40 In determining the plaintiff’s impairment, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions; in this case, the reports of Mr Miller, Dr Barton and Dr Kalnin.
41 I must determine whether the consequences of the plaintiff’s injuries are of sufficient magnitude (more than significant or marked and at least very considerable) to qualify as a “serious injury”.
42 Mr Miller said the plaintiff has low-back pain and discomfort which radiates into her left leg. He said she has difficulty with repetitive bending and lifting, prolonged standing and sitting, and reports significant sleep disturbance. He said the plaintiff stated her symptoms fluctuated but there had been no pattern towards improvement.
43 When examined by Mr O’Brien in February 2011, the plaintiff indicated that the low-back pain was not constant but was precipitated by prolonged positions such as sitting or standing for more than 20 minutes, walking quickly or attempting to run. The pain was also caused by pushing any weights, such as a trolley, and bending or lifting aggravated the pain.
44 In her recent affidavit, the plaintiff said her left leg pain has reduced slightly.
45 The plaintiff’s husband said on occasions he has observed his wife to limp. This was not referred to by the plaintiff in her evidence, nor was it reported to any of the medical witnesses. In fact, Dr Barton specifically stated that she walked without a limp and could walk on her heels and toes. I accept on occasions the plaintiff may limp, but it is not a consequence that she has reported to doctors or her legal advisers.
46 The plaintiff’s general practitioner said she attends monthly. She said the plaintiff’s treatment consisted of occasional physiotherapy. She said the plaintiff rarely uses any pain relief and had not requested any strong painkillers. Dr Lovell recommended stretching exercises.
47 The plaintiff said she takes Panadol as required, usually at night after a hard day at work, or the morning after. Generally, she takes Panadol several times a week, but she does not take it every week. The plaintiff’s evidence was that she uses heat packs on occasion and she performs stretching exercises at home every second day and Pilates exercises on the other days. Her husband massages her back daily. This is consistent with what she told the doctors whom she saw.
48 She reported to Dr Barton that she takes Paracetamol tablets, depending on the level of her symptoms, which vary considerably. She might take tablets after a busy shift.
49 In August 2013, the plaintiff told Mr Miller she no longer has physiotherapy or hydrotherapy. The plaintiff’s evidence to the Court was she attends hydrotherapy every two or three weeks.
50 In her first affidavit, the plaintiff said she had difficulty sleeping and on several occasions she woke up in pain. This has improved over the past twelve months and generally her sleep has improved. The plaintiff did not report sleep disturbance to Mr Miller, Dr Barton and Dr Kalnin, the doctors who examined her in 2013.
51 I accept the evidence is that the plaintiff suffers low-back pain and discomfort which she manages with Panadol, as required, heat packs and massage. She performs stretching exercises or Pilates daily. I accept that her leg pain has reduced slightly. The plaintiff has received limited treatment. She consults her general practitioner monthly and performs exercises for her low-back region. Her level of medication is at the lower end of the scale. I accept these are consequences I can take into account.
52 Prior to the work injury, the plaintiff was working shifts of 75 hours per fortnight performing unrestricted duties in high-care wards and, on occasions, overtime. After the injury she worked overtime. Currently, she is working light duties of 62 hours per fortnight, working four shifts per week in the low-care wards and one shift of alternative duties where she does not do ‘hands-on’ work. In addition, she is studying part time to qualify as a Division 2 Nurse. She believes the work as a Division 2 Nurse will be easier than working as a personal carer. She said, on occasions, she does not complete the 62 hours, and occasionally requires a day off work to rest.
53 The plaintiff consults her general practitioner monthly who, because of her low-back pain, provides certificates for restricted duties.
54 Mr Miller said the plaintiff will have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weights of more than 5 kilograms, and will have a requirements to shift her posture on a regular basis. These restrictions are permanent. However, Mr Miller was not aware that the plaintiff was studying part time to qualify as a Division 2 Nurse in addition to her work as a personal care worker.
55 Mr O’Brien accepted the plaintiff was limited in relation to any form of heavy physical stress placed upon the lumbar spine. He said she was not capable of undertaking unrestricted physical employment and that her continuing employment requires light duties, which he believed would be permanent.
56 Dr Barton thought she was fully fit and capable of undertaking normal personal care work on a full-time basis. His view was in the minority.
57 I accept that the plaintiff’s work capacity has been affected, in that she is unable to return to pre-existing work duties, and that restrictions have been imposed upon her. To her credit, she is undertaking a Division 2 nursing course which will allow her to continue to engage in meaningful employment. Counsel for the plaintiff submitted that because of the plaintiff’s injury, she has had to change to a part-time course, so she will not complete her training as quickly. I accept the plaintiff has had to undertake the course part-time; however, she is able to complete the requirements of the course, including student placements, and at the same time undertake 62 hours of work per fortnight.
58 I accept, based on the evidence of Mr Miller, that, any work she performs will be subject to the restrictions already identified. However, those restrictions are at the lower end of the scale and will not preclude her from engaging in meaningful employment. This is a consequence that I can take into account.
59 In her affidavit, the plaintiff said her low-back pain interferes with her family life, in that her husband does the mopping and vacuuming which she used to do. She said that apart from mopping and vacuuming, she is able to undertake the majority of the domestic activities, but she avoids tasks which place significant strain on her back. The plaintiff reported this to Mr Miller, who accepted that she will have a reduction in her capacity for heavy domestic and gardening activities.
60 She also avoids walking for periods of time in excess of half-an-hour. If she walks for longer periods, she needs to take a rest. This was supported by her husband’s evidence. Further, Mr Miller said the plaintiff would have reduced mobility as a result of her work injury.
61 In her affidavit, the plaintiff stated that she and her husband would like to have a family at some stage and that she is aware that being pregnant can cause low-back pain or may exacerbate her low-back and left leg pain. There was no medical evidence on this issue. Accordingly, I do not take that into account.
62 The plaintiff said in her affidavit that she attends weddings, and dances at each wedding, but does not dance for long before her back pain becomes intolerable and she requires time to rest. Now, she does not dance at any of the work social functions. This evidence is supported by her husband. This is a consequence I can take into account.
63 The plaintiff gave evidence that in September 2009, she travelled to England for three weeks. She said she was able to manage the trip there and back. The plaintiff drives her motor vehicle.
64 The plaintiff told Mr Miller that she previously enjoyed badminton and social basketball with her husband. Her husband said they used to go bowling with friends but now the plaintiff will sit and watch. She cannot bowl any more without aggravating her pain. Mr Miller accepted that the plaintiff would have difficulty with badminton and social basketball and will have a significant reduction in her capacity for pre-injury leisure and recreational activities.
65 I accept that the plaintiff can perform the majority of household tasks but requires assistance with mopping, vacuuming and gardening activities. I accept that as result of the work injury, the plaintiff can no longer perform recreational activities such as badminton, basketball and bowling.
66 In Stijepic v One Force Group Aust Pty Ltd,[10] Ashley JA and Beach AJA said:
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]Stijepic v One Force Group Aust Pty Ltd (Ibid) at paragraph [42]
67 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
68 What was in issue was the consequences of the plaintiff’s injury and whether they meet the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
69 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[13]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[13][1998] 1 VR 702
70 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude.
71 I am satisfied that the plaintiff now requires assistance with the heavier housework tasks of vacuuming and mopping. A number of the activities she previously performed namely, dancing, walking long distances and standing for long periods, can now be performed but on a restricted basis. The plaintiff can no longer perform recreational activities such as badminton, basketball and bowling. There was no evidence as to how frequently the plaintiff engaged in these activities prior to her injury.
72 I am satisfied that the plaintiff is no longer able to perform her pre-injury duties, nor can she perform manual work without restrictions. However, the plaintiff continues to work, albeit on light duties at slightly reduced hours, and is currently studying part time to be a Division 2 Nurse. Accordingly, she has retained the ability to work and to study to better herself.
73 The plaintiff is receiving minimal treatment and does not require significant analgesic medication in comparison to other cases which I am required to consider.
74 Although the plaintiff’s low-back injury has had a notable affect on her life, she retains the capacity to participate in many activities and to undertake almost full-time work, as well as studying part time.
75 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequence to the plaintiff satisfies the test. I accept that the plaintiff suffered an injury to her low back in 2009. I accept that that injury has had consequences to her which are considerable, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
76 Accordingly, I dismiss the application.
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