Lehane v Austin Health
[2013] VCC 1833
•12 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-12-03022
| DEBORAH LEHANE | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2013 | |
DATE OF JUDGMENT: | 12 December 2013 | |
CASE MAY BE CITED AS: | Lehane v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1833 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – s134AB Accident Compensation Act 1985 – serious injury – pain and suffering application – extent of consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 - Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 - Sutton v Laminex Group Pty Ltd [2011] VSCA 52 - Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 - Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 - Sabo v George Weston Foods [2009] VSCA 242 - Jones v Dunkel [1959] HCA 8 - O’Donnell v Reichard [1975] VR 916 - Earle v Castlemaine District Community Hospital [1974] VR 722
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn |
| For the Defendant | Mr I Gourlay | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Ms Deborah Lehane is a 51‑year-old Patient Services Assistant who suffered injury to her back after tripping whilst entering a lift at the hospital on or about 8 February 2010. In this proceeding the plaintiff seeks leave to claim damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).
2 The application relies upon paragraph (a) of the definition of “serious injury” as set out in s124AB(37) of the Act. The body function said to be lost or impaired is the back, and the parties are in agreement that the injury occurred in compensable circumstances. There is no claim concerning pecuniary loss. The sole issue for determination is an evaluation of the pain and suffering consequences of the plaintiff’s injury.
3 In order for the application to succeed, the plaintiff bears the burden of proving on the balance of probabilities that the consequences to her, flowing from the physical injury to her back, can be fairly and objectively assessed as meeting the threshold of “at least very considerable” and “more than significant or marked”.
The evidence
4 The plaintiff swore affidavits on 17 February 2012 and 18 November 2013. She also gave viva voce evidence in this application.
5 The plaintiff relied upon three reports from general practitioners at the Monbulk Family Clinic where she had been treated by Dr Michael Schwartzbord, a report from Dr Melissa White, psychologist, to whom she had been referred in April 2009, and a report from Mr Armin Drnda, neurosurgeon, to whom she had been referred by Dr Schwartzbord in June 2010. Additionally there was a medico-legal opinion from Mr Rodney Simm, orthopaedic surgeon, dated 13 August 2013. The plaintiff also tendered in evidence reports from Austin Health dated 23 August 2011 and radiological material taken in 2010.
6 The defendant relied upon an affidavit of Janice Brown, the Nurse Unit Manager at the hospital, which described the nature of the duties performed by the plaintiff since approximately 2011. The defendant also relied upon medical opinions from Mr Michael Dooley, orthopaedic surgeon, dated 13 November 2013, Dr Tony Kostos, rheumatologist, dated 8 June 2011, and Dr Philip Mutton, occupational physician, dated 15 April 2010. Finally, a certificate of capacity dated 17 February 2011 prepared by Dr Schwartzbord was tendered as part of the defendant’s case.
The plaintiff’s evidence
7 The plaintiff gave her evidence in a straightforward manner, making what I observed as appropriate concessions. She confirmed her affidavits sworn on 17 February 2012 and 18 November 2013 which formed part of the plaintiff’s Exhibit A. She was then cross-examined.
8 She confirmed in cross-examination that she had initially suffered quite severe right-sided sciatic pain shortly after the fall in February 2010. She agreed with the history noted at the Austin Hospital in the emergency department on 17 March 2010. The plaintiff agreed that after undertaking some rehabilitation at the Royal Talbot Hospital she initially returned to work on 22 April 2010, doing one shift a week, which she then built up to two and three shifts, and eventually to full-time hours by February 2011. She agreed with a note made by Dr Schwartzbord on 17 February 2011 that her back pain was reasonably well controlled. The plaintiff explained the change in her condition quite succinctly:
“Shortly after the accident I couldn’t move. So yes, there was a difference. I could move.”[1]
[1]Transcript(“T”)10 L29–31
9 The plaintiff further agreed that she had resumed her work on night-shift five days per week and had performed full duties, including mopping floors, vacuuming carpets and assisting with the movement of patients, including pushing patients on trolleys. She agreed that the work was quite physical and placed a good deal of strain on her back.
10 The plaintiff further stated that she had taken her allocated sick days and holidays but had not made complaints in writing concerning aspects of her job; however, she stated that she had complained to “heaps of people” about the nature of her work being too heavy.[2]
[2]T12 L24–31
11 Apart from difficulties concerning her return to work, the plaintiff gave evidence that she was very limited socially and could not sit down for too long in a cinema or a restaurant. Significantly, in my view, the plaintiff gave evidence as follows:
“I tend to stay at home rather than go out, as the pain takes away the enjoyment of the occasion.”[3]
[3]T13 L8–15
12 In terms of the time she could comfortably sit, the plaintiff described a period of between 1 and 1½ hours before she began to feel a bit uncomfortable.
13 When the plaintiff was asked about the activities of her son, with whom she resides, she stated that he worked on day-shift but there was some overlap between their working patterns, so that her son did all of the cooking.
14 The plaintiff was asked about her sleeping patterns, and responded negatively to the proposition that she had normal sleeping time. She agreed that one of the things that disturbed her sleep was her distress in relation to her daughter, who had suicided just prior to Christmas in 2008.
15 The plaintiff was skilfully cross-examined by Mr Gourlay in relation to the lack of medical treatment and indeed medication that she had been taking. In her first affidavit she had described the prescription of very strong painkillers, including OxyContin, tramadol, OxyNorm, diazepam, paracetamol and ibuprofen in March 2010. This was during the period that she was treated as an inpatient at the defendant’s hospital between 17 and 23 March. As to questions put to her concerning her lack of medication at the present time, the plaintiff responded that over the last year or perhaps even two years her regime of treatment was such that she would take Mersyndol tablets when the pain was very bad. She enlarged on this evidence by stating that two or three times a month she would get severe pain requiring her to take eight Mersyndol tablets in a day, which would only assist mildly in controlling her symptoms. She agreed that with the passage of time the severe pain would drop back to a lesser level, and stressed “It gets me up so that I can go to work”.[4] She described the spike in pain as lasting between a day up to about two weeks.
[4]T17 L10
16 Further cross-examination elicited that every couple of months the plaintiff would suffer extremely severe pain that could last two to three weeks. When further cross-examination was directed towards the lack of reportage to any treating practitioner, the plaintiff responded:
“I don’t think about what a doctor writes in his notes, I think about me having to make a living and having to work so complaining to a doctor who is going to give me strong medication that’s going to cause me not to work, I can’t do that.”[5]
[5]T18 L5–9
17 The plaintiff was re‑examined and explained that her memory had not been good since the death of her daughter in 2008, and she could not specifically recall when she might have seen Dr Schwartzbord. She was asked about the level of pain that she would need to experience before she started using her sick days, and responded:
“When it’s hard for me to move. Apart from that, I just put a back brace on and go to work.”[6]
[6]T19 L26-28
18 She also confirmed in re‑examination that she had made complaints to people at work and indeed outside of the work environment. She had not spoken to her boss Janice Brown, as they were working on different shifts and communicated through emails.
19 In re‑examination the plaintiff described the drive to and from work, stating that it could take between 40 minutes and an hour and 10 minutes. She described her back as feeling “terrible” when she arrived at work, and described a regime of walking and having coffee before she commenced her work. On the return journey, the plaintiff stated:
“I can’t get out of the car when I get home, I’ve got to beep the horn, and then my son comes out and has to help me out of the car and get up the stairs and I go into a bath or shower.”[7]
[7]T21 L11-20
20 In response to a question put by me, the plaintiff described this regime of having difficulty getting out of the car and relying on her son as often dependent on the type of shift she has performed. She stated:
“It can be one day a week, two days a week, it can be five days a week.”[8]
[8]T22 L8–10
21 In response to a question in relation to the importance of her work to her, she responded that she would like to keep the work at the Austin Hospital as long as she could, emphasising this by the response “I’d die if I couldn’t work[9].” The financial necessities of paying her mortgage and paying the bills made work an imperative for her.
[9]T22 L29-31
The medical evidence
22 The medical evidence in this case is in heated agreement that the plaintiff suffers from degenerative disc disease of the lumbar spine. Whilst there is some marginal disagreement as to the aetiology of this condition, the plaintiff is not required to prove that it has been caused totally by the incident in February 2010 but rather that it constitutes an injury as defined in s5 of the Act.
23 The first medical opinion was that obtained on behalf of the defendant from Dr Philip Mutton, consultant occupational physician, set out in his report dated 15 April 2010. At the time of his examination some two months after the fall, he diagnosed the plaintiff as suffering from low-back pain with right sciatica. He considered that the fall may have resulted in some aggravation of degenerative changes with possibly a disc prolapse that was not shown on the imaging available to him at that time.
24 Next in time was a report from Dr Schwartzbord dated 26 July 2010. Dr Schwartzbord gave no specific diagnosis, but regarded the plaintiff as suffering chronic back pain from which she suffered constantly. At that relatively early stage before the plaintiff had fully returned to work, he noted that he regarded her as “a very stoic lady and suffers more than she cares to show”.[10]
[10]Exhibit A, page 26
25 The plaintiff’s treating neurosurgeon, Mr Armin Drnda, reported to the plaintiff’s solicitors on 2 February 2011. The plaintiff had been referred to him by Dr Schwartzbord, and he first saw her on 22 June 2010. He regarded her pain as being myofascial pain on the basis of some degenerative changes in the spine, and referred her for an MRI scan. He did not again see her, and regarded the findings shown on MRI as being in keeping with his assessment of multiple degenerative changes but without neural compressions which would require surgery. He commented in relation to the nature of the injury:
“The fall triggered the back pain that may have been pre-existing but then became worse. So, in that sense the injury is consistent with the stated cause.”[11]
[11]Exhibit A, page 34
26 He went on to state:
“The prognosis is with some doubts. The patient developing chronic pain is likely to remain with a degree of back pain.”[12]
[12]Exhibit A, page 34
27 The plaintiff was referred by the defendant to Dr Tony Kostos, rheumatologist, who examined her on one occasion on 6 June 2011. He essentially agreed with other medical opinions that there were degenerative changes shown radiologically but no neural compressive lesions. He disagreed with Mr Drnda suggesting that the degenerative changes were caused by bending, twisting or lifting. Dr Kostos regarded these changes as being constitutional in origin. He did not express a particular view on causation, but, accepting the plaintiff’s history, stated:
“Therefore all that can be said is that she has some chronic left-sided low-back pain the source of which is not apparent.”[13]
[13]Exhibit 1, page 9
28 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of her solicitors on 13 August 2013. The history recorded by Mr Simm was generally consistent with the description of the current symptomatology given by the plaintiff in her evidence. Under the heading “Current Condition” he recorded as follows:
“She has flare ups of pain at about two monthly intervals. The pain may be severe for weeks at a time. When the pain is very severe she is unable to work and requires assistance with personal activities of daily living from her son. The last flare up of severe pain occurred about seven weeks ago and lasted for three weeks during which time she required eight Mersyndol tablets per day. She has required time off work because of these flare ups of back pain but does not submit a WorkCover certificate. She takes the time off on sick leave. … The pain is now confined to the lumbar region of the lower back with some radiation to the buttocks … her bladder and bowel function is satisfactory, although there is a tendency for stress incontinence and urinary frequency and urgency. Her back pain is usually at a level of 4‑5/10. The severe episodes of back pain rise to ‘20/10’ … She experiences pain every day. She has increased lower back pain after sitting for 1½ hours or driving for a similar length of time … she is reasonably comfortable walking but if she misses a step or jars her back going over a speed hump whilst driving she has sharp, severe pain in the lower back. She has limited movement of her back and struggles to bend over to put on her shoes and socks. When she is suffering a severe exacerbation of pain her son needs to assist her with showering and to get on and off the toilet. Coughing may aggravate the pain but straining on the toilet does not. The pain may keep her awake at night. She is a poor sleeper for other reasons.”
29 Mr Simm reviewed the radiological material and found what he described as “extremely severe end stage degenerative changes involving the L5-S1 level, where there was disc resorption and reactive bone changes in the adjacent L5 and S1 vertebral bodies.” He made other comments about degenerative changes in the lumbar spine which I have noted but it is not necessary to repeat them here. Mr Simm diagnosed severe L5-S1 lumbar disc degeneration and concluded:
“The pathological and clinical cause of this pathology does seem to have been influenced by the nature of her work duties and, in particular, by a soft tissue injury to the lower back when she fell at work on 8 February 2010.”
30 He further opined that her prognosis was that the condition would persist as described with a tendency for gradual deterioration. In terms of her capacity for employment, Mr Simm suggested that the plaintiff should exercise common sense and try and eliminate or minimise those activities which aggravate her pain. He thought she was capable of doing her normal work duties and hours at present although he took the view that she would be unlikely to continue with her current physically-based employment in the long term.
31 The final medical report relied upon in this proceeding is that provided by Mr Michael Dooley, orthopaedic surgeon, to the defendant’s solicitors on 13 November 2013. Mr Dooley examined the plaintiff on 7 November 2013. Mr Dooley again formed the view that the episode in February 2010 had caused the plaintiff to aggravate underlying degenerative disc disease of her lumbar spine. He felt that her treatment could be self managed with stretching exercise and regular low impact exercise of assistance. He commented that at times she would need to sensibly modify her activities and felt that she will continue to note ongoing low back pain with intermittent exacerbations of pain. In terms of her work capacity, he felt that she would have difficulty carrying out regular heavy physical work or work that involved a lot of bending and lifting. He regarded her as having a capacity to carry out light physical work and clerical duties.
32 I should comment that the history of present complaints recorded by Mr Dooley is summarised in six lines in his report. The report from Mr Simm earlier in 2013 records the current condition and ongoing treatment in much greater detail. In essence, both contemporary medico-legal orthopaedic opinions are much the same in terms of diagnosis of injury and prognosis of the condition into the foreseeable future. Where there are differences of opinion, they are perhaps reflective of the different histories recorded by the two surgeons and in this regard I prefer the opinion offered by Mr Simm as it more closely aligns with the evidence given both viva voce and in affidavit by the plaintiff.
33 I should refer briefly to the report from Dr Melissa White dated 12 September 2012. Dr White is a clinical psychologist to whom the plaintiff was referred for assistance in April 2009 following the suicide of her daughter. Dr White felt that the work place incident placed significant stress on the plaintiff and challenged her capacity to cope. She had diagnosed a recurrent major depressive disorder she regarded as being in partial remission in September 2012, together with a generalised anxiety disorder. She described the plaintiff as a person of sound personality function without any traits of personality pathology and felt that following finalisation of legal proceedings she would require only two to four sessions to debrief and resolve this matter psychologically. She stated that the plaintiff would require monthly psychotherapeutic support in relation to the death of her daughter.
34 In the present case I do not regard psychological factors as amplifying the plaintiff’s obvious back pain and disability. Indeed, the full report provided by Dr White confirms the impression I had gained of the plaintiff from her presentation in the witness box.
The legal framework
35 The essential task of a Court is to evaluate the evidence in line with relevant authority and determine whether or not the consequences in terms of pain and suffering suffered by the plaintiff and resulting from the compensable injury can at least be described as very considerable and more than significant or marked when compared with a range of other impairments or losses of a similar kind.
36 In Haden Engineering Pty Ltd v McKinnon,[14] the Court of Appeal provided useful guidance as to the evaluation of pain and suffering consequences.[15] I have also been assisted by the approach taken by the Court of Appeal to such an assessment in Dwyer v Calco Timbers Pty Ltd (No 2):[16]
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[17]
[14][2010] VSCA 69
[15]Paragraphs [9]–[17] per Maxwell P
[16][2008] VSCA 260
[17]Dwyer at [27] per Ashley JA
37 I was referred by counsel in argument to Sutton v Laminex Group Pty Ltd[18] especially at paragraphs [77]–[79] where the Court reviewed statements made in relation to the consequence of a return to full-time employment, albeit alternative employment as discussed in Sumbul v Melbourne All Toya Wreckers Pty Ltd[19] and Stijepic v One Force Group Aust Pty Ltd.[20] I was also referred to Sabo v George Weston Foods.[21]
[18][2011] VSCA 52
[19][2006] VSCA 292
[20][2009] VSCA 181 at [47]
[21][2009] VSCA 242
38 Whilst the authorities to which I have referred are of assistance, ultimately the determination to be made in each particular application of this nature depends on the whole of the evidence, and it is not reasonably practicable to tailor a particular template to enable a universal scale to be applied to pain and suffering applications whilst doing justice to the requirements of the legislation and the superior court authorities.
Assessment
39 In this particular case it seems clear that the plaintiff’s life prior to her injury in February 2010 was far from ideal, and there was little left after the necessity of the working week to provide an avenue for a great deal of recreation or other leisure pursuits. Indeed, the principal submission of the defendant in this case is that the plaintiff was a nightshift patient-care attendant prior to her injury, she has now returned to full-time work in that role, and there is little to be seen in terms of changed circumstances that would entitle her to the leave she seeks in this application.
40 Mr Gourlay made a submission that I should expect to receive affidavit material from the plaintiff’s son with whom she resides, as he is one of the witnesses from whom evidence could be anticipated. All that can be said in relation to such a submission is that the absence of evidence from a person such as the plaintiff’s son cannot advance the plaintiff’s case. However, it cannot found an adverse inference such as would be drawn if this were a case where there was a competing proposition advanced by the defendant, which could then more easily be accepted as in cases akin to Jones v Dunkel,[22] O’Donnell v Reichard [23] or Earle v Castlemaine District Community Hospital.[24] The extent of any adverse inference to be drawn is limited to the absence of evidence from the son not assisting the plaintiff’s case. There is no relevant conflict of evidence, and therefore I can do no more than make an assessment based on the evidence that is before the court.
[22][1959] HCA 8
[23][1975] VR 916
[24][1974] VR 722
41 I do accept, as put in submissions by Mr Gourlay, that there is very limited material in this case which would support any finding in favour of the plaintiff other than that evidence touching upon her pain and general domestic activity. In this regard this case does not fit within the usual parameters for applications of this type.
42 In the plaintiff’s first affidavit, sworn 17 February 2012, the plaintiff refers to her pain, interference with sleep, personal care and household chores. In relation to treatment, her affidavit of that time was largely to explain that she had found no help from strong painkillers and therefore was having no ongoing treatment.
43 In the plaintiff’s most recent affidavit, sworn 18 November 2013, there was far greater detail about the plaintiff’s description of pain and its consequence for her, and a recitation in slightly different language of the domestic restrictions. Her only real reference to social or recreational activities was contained in one paragraph, and was limited to the plaintiff stating:
“Socially, I am now very limited. I can’t sit down for too long in a cinema or a restaurant for example. ... I tend to stay at home rather than go out as the pain takes away from the enjoyment of the occasion.”
44 In broad compass, therefore, the plaintiff’s application for leave is based very largely on the experience of pain in her lower back at the time of assessment and the consequences of that pain on her life. She has a very limited range of activities, involving working five nightshifts per week and travelling for somewhere in the order of 40 minutes to 1 hour and 10 minutes each way. I accept the plaintiff’s evidence that on arriving at work she feels terrible and has a regime of going for a walk and having coffee to alleviate her back pain before commencing work. I also accept her evidence that on returning home after completing her nightshift she needs to rely on her son to assist her from the car with a frequency that varies from one day a week up to the full five days a week.
45 The medical evidence in this case suggests that the plaintiff should not be doing heavy work. The degenerative changes in her lower back are described by Mr Simm as severe. Although there is some reference in the plaintiff’s affidavit material to some back pain and soreness prior to 2010 (including an episode shortly after 1999 which led to her having two months off work) it was not suggested by the defendant’s counsel, or any doctor that the plaintiff’s back was causing her constant pain and disability prior to the incident in February 2010. Whilst it is likely that the plaintiff’s spinal degeneration had been present for many years I accept that the incident complained of was a relevant cause of the consequences presently experienced by the plaintiff.
46 The plaintiff provided a simple explanation as to the absence of any significant treatment other than the ingestion of Mersyndol by explaining that nothing had been of great assistance, and the use of strong analgesic painkillers meant that she could not drive and could not attend her work. Given the strictures of her life and the necessity to work, the fact that she is required to do so in conditions of constant pain varying from a relatively low level to a severe level means that I can place substantial weight on the pain consequences largely because of the very inflexible nature of the plaintiff’s life and her tenacity to continue her ongoing work with the defendant.
47 I also place some weight on the interference with her sleeping patterns, whilst noting that the back injury is not the only factor affecting her sleep. She conceded in cross-examination that the psychological effects of her daughter’s suicide still weigh heavily upon her, and this interferes in part with her sleeping patterns. I accept that her domestic activity, including aspects of her own ability to self-care, has been greatly affected by her injuries. Notwithstanding the absence of any corroborating affidavit material, I accept the plaintiff’s evidence that with a frequency of somewhere between one and five days per week she is required to be assisted from the car by her son on her arrival home from work and then further assisted up a series of seven stairs and into the shower. I was impressed by the way in which the plaintiff recounted her evidence in terms of this area of restriction. It struck me as being consistent with her experiencing it as a regular occurrence as she had sworn in her evidence.
48 As put in submissions by the defendant’s counsel, the plaintiff’s evidence of social and recreational activities was very limited. Indeed, as I have outlined, her life prior to the incident in February 2010 was certainly not one focusing on this type of activity. My assessment is that the plaintiff’s life had been a struggle in terms of holding down a full-time nightshift position and supporting a mortgage on the home where she resided with her son. There has been no challenge to the constancy of the plaintiff’s pain, and I regard it as a most significant impediment to her ability to cope with a difficult existence.
Conclusion
49 Taking into account the particular circumstances of the plaintiff’s life, and noting that she has retained an ability to perform most aspects of it but continues to experience constant pain at varying levels, including very severe attacks every couple of months and severe attacks two or three times per month, I regard her as suffering consequences of her lower-back injury which can fairly be described as at least very considerable when compared with a range of possible similar injuries and consequences.
50 I grant leave to the plaintiff pursuant to s134AB(16)(b) of the Act to commence common law proceedings in respect of pain and suffering damages for injuries sustained in an incident occurring on or about 9 April 2010.
51 I will hear the parties concerning formal orders and costs.
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