Linea v Northeast Health Wangaratta
[2011] VCC 1223
•22 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00187
| ANITA JOY LINEA | Plaintiff |
| v | |
| NORTHEAST HEALTH WANGARATTA | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 25 July 2011 |
| DATE OF JUDGMENT: | 22 August 2011 |
| CASE MAY BE CITED AS: | Linea v Northeast Health Wangaratta |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1223 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – pain and suffering only – injury to the elbow - application granted
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti | Nevin Lenne & Gross |
| with Mr G Pierorazio | ||
| For the Defendant | Mr R Middleton SC | Wisewould Mahony |
| with Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant.
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 s.134AB(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 epicondylitis in the right elbow.
6 The plaintiff relied upon two affidavits, sworn 14 September 2010 and 16 May 2011. The plaintiff was cross-examined. 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 s.134AB(37) of the Act.[1]
[1] S.134AB(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 the defendant.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (ibid) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
…
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and
as being at least very considerable.”
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 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“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. … .”[5]
[4] [2009] VSCA 181
[5] ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(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.[8]
[7] S.134AB(38)(j) of the Act
[8] 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]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared with other cases in the range.
The Plaintiff’s Evidence
15 In her affidavits sworn on 14 September 2010 and 16 May 2011 the plaintiff deposed that:
•
She commenced employed with the defendant as a laundry hand in 1999.
• She has had chronic right elbow pain since 2004. •
In January 2007 she noticed soreness in both elbows at the end of a shift. She filled out a WorkCover claim, an incident report and went to the doctor. She was placed on modified duties. In January 2008 her right wrist developed soreness as a result of the heavy work. She had two weeks off and then returned to work.
•
She continued to work on modified duties until November 2009 when the business closed and she was made redundant. She has since worked at the Showbag Factory about 2 days per month, but the work causes pain in her right arm and she takes pain killers.
•
She consulted a physiotherapist and a general practitioner. She takes Panadol daily and uses Deep Heat on her elbow up to five times a day.
•
She had treatment by way of blood removal, which reduced the pain for a couple of months, but her elbow pain is worse again,
•
She continues to suffer constant, chronic pain in her elbow, which is worse at night. At night the throbbing constantly wakes her. Her wrist remains painful. She has lost a lot of strength. She sometimes has numbness and pins and needles in her fingers.
•
She struggles with domestic activities such as doing the washing, vacuuming and carrying shopping. She is restricted in her ability to garden. Her recreational and family life has suffered as . She struggles to pick up her grandson and is unable to use the pool table her husband and her installed. She loved gardening, she can’t use the whipper snipper and has difficulties with weeding and digging.
The Plaintiff’s Evidence in Cross-examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
•
She underwent a carpal tunnel release on the right side. She agreed she still wears a brace and still performs exercises. When she saw Ms Keith, orthopaedic surgeon, in December 2009, three months after the operation, she said she had just been doing housework. She agreed she had mowed the lawns from time to time but she got pain in the elbow. She agreed that Ms Keith suggested she have a fluoroscopically-guided injection of Depo-Medrol into the scaphoid joint. It was organised but WorkCover refused to pay for it and she could not afford to pay for it herself.
•
She agreed she had not seen her general practitioner, Dr Traill, between 1 December 2009 and 13 May 2011. She said she just put up with the pain. She said, “I thought, what’s the point”. She was asked about her attendances at her general practitioner, Dr Traill, and said a month after the injection she still had pain; it was like a toothache. She agreed she had not seen any doctors until May 2011, because she thought she had to put up with the pain and nobody was going to fix it. She agreed she only takes Panadol every day of the week and it could be up to six Panadol per day, or maybe more.
•
She said she has worked for Showbag Factory Australia Pty Ltd, two days every three or four months, and she puts lollies in a show bag. She has also worked for Jade Quality Pty Ltd, putting plastic in empty boxes. She said she did that in the financial year 2010.
•
She agreed she had a pool table but said she never used it because her doctor and physiotherapist had told her she cannot use it.
•
She does the inside housework. She has not mown the lawn for twelve months.
17 In re-examination, she said:
•
The plaintiff was asked about a report of Ms Keith in November 2009 who described her pain as a little sore. The plaintiff said it was aching all the time and at night time it was worse.
•
She described the exercises she does. She has a ball and rubs it around her elbow and she does tension stretches. She does the exercises every day and had been told to do them by her physiotherapist and Ms Keith. She described the brace. It is made of hard plastic with a Velcro band and she wears it all the time because it supports her arm. When she wears it her arm does not ache as much.
•
She said she did not return to Ms Keith because she was going to give her the cortisone injection and WorkCover would not pay for it and she could not afford the injection.
•
She said the arm aches nearly twenty-four hours a day and it is worse than a toothache, “it aches and aches; it wakes me up”. She takes Panadol to try and get rid of the pain.
•
She said her daughters and grandson play pool, as does her husband, and she would love to play with him.
•
She said she does vacuuming, ironing, sweeping and mopping but must have breaks because her arm kills her. She said it takes a while to do her housework. She cannot mow the lawn because of the vibration – it makes her arm throb and it aches. She cannot start the mower.
Investigations
18 On 7 August 2007, an x-ray of the right elbow showed:
“Alignment is maintained. There is bony irregularity about the lateral and medial epicondyles in keeping with an enthesopathy. No other significant radiographic abnormality is identified.”
19 On 10 August 2009, an x-ray of the plaintiff’s right elbow showed:
“Alignment was within normal limits. No evidence of a joint effusion. A
fracture or focal bony abnormality is not detected.”
The Plaintiff’s Medical Evidence
20 On 10 June 2009 Dr A Traill referred the plaintiff to Ms Keith, orthopaedic surgeon, in respect to bilateral epicondylitis and said that the plaintiff had been troubled by bilateral tennis elbow symptoms for some years.
21 On 14 July 2011, Dr A Traill, general practitioner, reported that the plaintiff consulted him on 13 May 2011 complaining of recurrent bilateral elbow pain, worse on the right side. He noted that the plaintiff had bilateral carpal tunnel syndrome. She had a right carpal tunnel release which appeared to be successful. He said her complaints of symptom were consistent with persistent bilateral epicondylitis. He thought the symptoms will impact on her social, domestic and recreational activities to a moderate degree. He said her pain was likely to be aggravated by the use of her hands, particularly when gripping items and lifting heavier objects. He expected it would continue into the foreseeable future, depending on the activities in which she engages. He said that her injuries will prevent her from engaging in any occupation which requires prolonged use of the right arm and/or heavy labouring work and that this restriction will persist permanently. He said her current suitability for employment was extremely limited due to her injuries and her limited education, training and work experience. He referred her to a physiotherapist for further treatment. Should she fail to respond to physiotherapy treatment of her elbow pain, he said further treatment options included cortisone injections or surgery to her elbows. He said that given the prolonged history of her symptoms and her recent casual work, he expected that she would suffer from this condition for a long time, possibly indefinitely.
22 Ms Prue Keith, orthopaedic surgeon, reported to Dr Traill on 3 September, 12 October, 9 November and 21 December 2009 and 22 March 2010. In September 2009, she diagnosed a persistent right elbow lateral epicondylitis and right carpal tunnel compression. She said the plaintiff had received multiple treatments, including acupuncture, physiotherapy with Ms Binks, and she had worn a lateral epicondylar brace for three years. She had taken anti- inflammatories, and had a single cortisone bilaterally into each elbow performed two years prior but the effect had worn off. It was Ms Keith’s opinion that the plaintiff should have an injection of Platelet Rich Plasma (“PRP”) into the right elbow common extensor region as a day case.
23 In October 2009, Ms Keith reported that the procedure had been undertaken and that the plaintiff was not complaining of pain in the elbow following the PRP injection.
24 In November 2009, Ms Keith reported that the plaintiff said the right elbow was better, but complained for the first time of pain, having been back at work for two weeks. Ms Keith noted that the plaintiff was wearing a brace for protection and doing exercises.
25 In December 2009, Ms Keith noted the plaintiff had had some recurrence of discomfort but had been doing some pretty heavy work at home.
26 In March 2010, Ms Keith said that the right elbow lateral epicondylitis had settled reasonably well. The plaintiff reported certain activities, such as lawn mowing, were provocative.
27 On 6 July 2011, Mr Kenneth Brearley, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitors. It was his opinion that the plaintiff had lateral epicondylitis of the right elbow. He said she was seriously precluded in regard to her social, domestic and recreational activities. He said that she had serious difficulties with her domestic duties, particularly vacuuming, sweeping and ironing, lifting pots and pans while cooking. She had difficulty shopping and carrying shopping bags. She was unable to play pool. He said her incapacity for these activities would continue for the foreseeable future. He said that her physical injury and impairment precluded her from prolonged use of the right arm and heavy labouring work. It also precluded her from any job involving repetitive use and twisting of the right arm and similarly with lifting. He said she could not lift beyond 2 kilograms. He said this would continue for the foreseeable future.
28 He said she could not carry out her normal pre-injury employment as a process worker. He thought, given her age, limited education, lack of computer skills, work experience, being solely as a manual labourer, and, in addition, her place of residence, there was no possibility of her obtaining work.
29 He noted that her symptoms had been present for some years and said they will continue into the foreseeable future. He said that her symptoms and impairment were the result of a physical injury and there was no evidence of any psychological reaction or functional component. He said her incapacity for employment would continue for the foreseeable future.
30 On 13 July 2011, Dr Alex Stockman, rheumatologist, reported at the request of the plaintiff’s solicitors. He said her current problem of right lateral epicondylitis had been present for seven years and had probably stabilised and he would expect little change in the foreseeable future. He considered that her injury and impairment restricted her in relation to social, domestic and recreational activities, which will continue for the foreseeable future. He said she may respond to another autologous blood injection but in view of the duration of the symptoms and the nature of her condition, a satisfactory response may not be forthcoming, even with this treatment. He said the plaintiff was likely to continue having pain in the right elbow and forearm for the foreseeable future and that she should continue with analgesia and with the tennis elbow strap.
The Defendant’s Medical Evidence
31 Dr Roy Karna, rheumatologist, saw the plaintiff on two occasions and reported most recently in July of 2011. He noted on examination that her grip strength was substantially reduced on the right because of pain immediately felt in the right lateral elbow region. He noted she was wearing a tennis elbow strap. Her range of motion was normal. He noted that pronation and supination was normal in measurement but resisted supination of the right forearm, and in particular produced right lateral epicondyle pain where she had a marked local tenderness. He believed her responses were genuine. He accepted she had considerable restriction in grip strength on the right.
32 He thought she could not work as a sales assistant, console operator or customer advice operator, and noted that her transferrable vocational skills were limited. He was of the view that she was not capable of future work, noting that she lived in Wangaratta and had a limited capacity to travel.
Video Surveillance
33 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the defendant’s Court Book. I can only conclude that the film did not assist the defendant as it was not shown.
Credit of the Plaintiff
34 The plaintiff impressed me as a truthful witness. She answered all questions in a direct manner. She did not exaggerate the consequences of her injury in order to make her case appear stronger. If anything, she underplayed the consequences. She was asked why she did not attend her general practitioner between 1 December 2009 and 13 May 2011. She said she just put up with the pain; she thought, “what’s the point”. She later said, “nobody is going to fix it”. I accept that these answers were consistent with the view I formed of the plaintiff, which was that she had extremely limited education, worked hard in manual work and made light of the condition from which she suffers, and has tried to get on with her life. I accept that she was a genuine and credible witness, which is consistent with the views expressed by the doctors who examined the plaintiff. She was asked why she did not return to see Ms Keith. She said that the insurer would not fund the further injection and she could not afford to pay for it. She did not think there was any other option available. I accept her reasoning for not returning to see Ms Keith.
35 I accept the plaintiff was a witness of truth.
Analysis of the Evidence
36 Based on the medical evidence, I am satisfied that the plaintiff suffers a compensable injury arising out of, or in the course, of her employment with the defendant. All of the medical witnesses accept that the injury is work-related.
37 The Court of Appeal has emphasised that the task of a judge in making a serious injury determination involves a “fact, degree and value judgment”. In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are more than “significant” or “marked”.
38 All doctors accept the plaintiff has right elbow pain. The consequences of the pain are that her social, recreational and domestic activities will be affected for the foreseeable future. Furthermore, she can no longer engage in heavy labouring work involving the prolonged use of the right arm, and is also precluded totally from any job involving repetitive use and twisting of the right arm and similarly with lifting. She cannot do any heavy lifting or repeated lifting beyond 2 kilograms, and this is likely to continue for the foreseeable future. This view was expressed by Mr Brearley. Dr Stockman believes she will be precluded in relation to work or activities involving the prolonged use of the right arm and for heavy labouring jobs. He imposes restrictions of lifting weights of 4 kilograms. Dr Karna says, taking into context the limited grip strength that she has, that he does not believe she will be able to work as a sales assistant, console operator or customer advice operator. He thinks her transferrable vocational skills are limited and due to the fact that she is computer illiterate and lives in the Wangaratta area, her employment capacity is limited.
39 The level of medical treatment the plaintiff is receiving consists of Panadol on a regular basis of six tablets per day. She says that level of medication does not control the pain, but she is reluctant to use stronger pain for fear of addiction. She told Mr Stockman the pain had worsened and said it was at a level of 9 out of 10, where 10 is the most severe pain.
40 All doctors accept that the plaintiff has an injury, the consequences of which will continue for the foreseeable future. All doctors accept that she has an incapacity for pre-injury work, which will be permanent.
41 What is in issue is the consequences of the plaintiff’s injury and whether they meet the test of seriousness for pain and suffering, in that they can be considered to be more than significant or marked, and as being at least very considerable when compared with other cases in the range.
42 Counsel for the defendant submitted that the pain and suffering consequences of the plaintiff’s injury were not significant or marked and fell well short of at least “very considerable”. Counsel relied upon the decision of Haden Engineering Pty Ltd v McKinnon.[9] He referred to paragraphs 11-13:
[9] [2010] VSCA 69
“The evidentiary basis of the pain assessment will ordinarily comprise the
following:
(a) what the plaintiff says about the pain (both in court and to
doctors);[10]
(b) what the plaintiff does about the pain (eg medication, rest, seeking
medical treatment);[11]
(c) what the doctors say about the extent and intensity of the plaintiff’s
pain; and
(d) what the objective evidence shows about the disabling effect of the
pain.[12]
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.[13] The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence,[14] and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.[15]
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[16] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[10] Dwyer (No 2) [2008] VSCA 260, [24]; Kelso [2010] VSCA 12, [48]
[11] Sumbul [2006] VSCA 292, [13], [26], [33]–[34]; Stijepic [2009] VSCA 181, [48]; Sabo [2009] VSCA 242, [70]; Kelso at [50]–[55]
[12] Sejranovic [2009] VSCA 108, [171]
[13] Dwyer (No 2) at [8]; Sejranovic at [171]; Sabanovic [2009] VSCA 143, [142]–[145]
[14] Dwyer (No 2) at [8]; Sabanovic at [145]
[15] Sabanovic at [142]
[16] Dwyer (No 2) at [3] (per Nettle JA)
43 Counsel for the defendant referred to paragraph (a) and submitted there was an interesting contrast in this case as to what the plaintiff said in Court and what she said to her doctors. I note that when she was working she made complaint of the increased pain to Ms Keith. When seen by medico legal doctors she told them of the level of pain she suffered. Those doctors accept her complaints as reasonable and describe the plaintiff as genuine.
44 In respect to paragraph (b), Counsel referred to the fact that the plaintiff was taking Panadol, a non-prescriptive drug, up to six a day, and the fact that her last consultation in review was on 1 December 2009 and there had been no attendance on the treating general practitioner until 13 May 2011.
45 In respect to paragraph (c), Counsel referred to the intensity of the plaintiff’s pain and what doctors said about the extent of that.
46 I am aware the plaintiff has not taken prescription medication but I must consider the extent of her current treatment, which includes Panadol on a daily basis of up to six tablets per day, her reluctance to take stronger medication for fear of addiction, exercises and the wearing of a brace. No medical practitioner suggest that this was inappropriate or that there is any further treatment she can have.
47 I accept the plaintiff’s evidence that she has not complained on a regular basis to her general practitioner about her elbow. I accept her reasons for not seeking further treatment, namely she does not think any doctors can fix it and she thought she had to put up with the pain. The plaintiff said she suffers pain at night. I note that there was no mention of this in any of the medical reports. The doctors accept that the plaintiff is genuine. I accept the plaintiff is stoical. Accordingly, the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because she manages to remain more active than others.
48 Taking all the evidence into account, I am satisfied, on the balance of probabilities, and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I am satisfied that when judged by a comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
49 Accordingly, the plaintiff’s application to bring proceedings for damages for pain and suffering only is successful.
Findings
50 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering as a result of her employment with the first defendant.
51 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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