Makripoulias v Fronditha Care Inc
[2012] VCC 1025
•1 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02556
| HELEN MAKRIPOULIAS | Plaintiff |
| v | |
| FRONDITHA CARE INC (ACN 138 152 682) (ABN 71 424 124 816) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 July 2012 | |
DATE OF JUDGMENT: | 1 August 2012 | |
CASE MAY BE CITED AS: | Makripoulias v Fronditha Care Inc | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1025 | |
REASONS FOR JUDGMENT
---
SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Compensable injury to lower back – whether the loss of earning capacity consequences were serious – whether offer of alternative employment suitable – where loss of earning capacity consequences are serious no necessity to separately consider pain and suffering consequences
LEGISLATION: Accident Compensation Act 1985, section 134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
RULING: the plaintiff have leave to bring a proceeding at common law pursuant to section134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with Mr D Churilov | Zaparas Lawyers |
| For the Defendant | Mr I McDonald | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 6 June 2011 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Monti appeared with Mr D Churilov of Counsel for the plaintiff, and Mr I McDonald of Counsel appeared for the defendant.
4 The plaintiff submitted that she suffered a serious permanent impairment or loss of the function of her lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Dr Thomas, consultant in rehabilitation and pain medicine, gave evidence and was cross-examined;
· Dr Andrianakis, general practitioner, gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 18-34f and 43-146: Exhibit A;
· The defendant tendered film taken of the plaintiff on 12 and 13 July 2012: Exhibit 1;
· The defendant tendered its Court Book (“DCB”), pages 1-4 and 22-151: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that she has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]s.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(j) I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
8 The plaintiff was born in Greece on 11 November 1958. She migrated to Australia in 1980 when she was about twenty-one years of age. She is now fifty-three years of age. She is divorced. Her three children are now adult and independent of her.
9 The plaintiff commenced working for the defendant in December 2002. The defendant is a community-based organisation which conducts nursing homes for elderly Greek citizens. It also co-ordinates home care, personal care and social visits at the homes of elderly Greek citizens. The plaintiff was employed as a personal carer. The tasks she was required to undertake were mainly domestic tasks for elderly Greek citizens and taking them to appointments which they were required to attend.
10 The plaintiff obtained a qualification as a personal care attendant, after which she worked a minimum of 30 hours per week with the defendant and up to 38 hours per week. By 2007 she was employed by the defendant as a permanent part-time member of staff. By that stage, her duties involved a variety of domestic tasks.
11 On 17 March 2009, the plaintiff attended at the home of a client of the defendant. The client had purchased a new mattress for his bed. The plaintiff found it difficult to lift the mattress in order to make his bed and change the sheets on his bed. On that day, she bent to her left side and then her right side, twisting her body while lifting the mattress in the course of making his bed. It was that activity which resulted in the plaintiff suffering discomfort in her lower back, and more serious pain the following day.[4]
[4]PCB 22-23
12 The plaintiff made a claim in writing dated 5 May 2009. The claim was accepted.
The Issues
13 The defendant concedes that the plaintiff suffered a compensable injury consistent with the preponderance of the medical evidence, which I will deal with in summary below.
14 The defendant also concedes that the plaintiff is unfit for her pre-injury work. However, what the defendant contests is whether the plaintiff suffered a deterioration in the condition of her lower back in January 2011 which has rendered her permanently unfit for suitable employment.
15 In that context, the defendant submits that the plaintiff was working in suitable light work through 2010, and that she is fit for that work, and has been since January 2011. Furthermore, it submits that the plaintiff was made an offer of suitable employment developed by 28 July 2011 based upon medical advice from Dr Miller, occupational health consultant. The plaintiff returned to work pursuant to the offer of suitable employment working only three days and for a few hours each day. She did not pursue the offer of suitable employment further, and has not worked in any employment since. The defendant submits that the offer of suitable employment was consistent with the plaintiff's retained capacity for work, and the reason why it failed was because the plaintiff was not motivated to make it work.
16 Therefore, the issues which I must determine are:
· Whether the pain and suffering consequences contended for by the plaintiff are serious?
· Did the plaintiff suffer a deterioration in her condition as at January 2011 rendering her unfit for the light work she was undertaking up until that time?
· Whether the offer of suitable employment developed on 28 July 2011 was suitable in all the circumstances, and is employment which the plaintiff was and is capable of undertaking?
· Whether the loss of earning capacity consequences contended for by the plaintiff are serious, which will be determined by an answer to the two preceding questions?
The Plaintiff's Medical Treatment
17 The plaintiff saw Dr Andrianakis on 30 March 2009. He recorded that the plaintiff was complaining of lower back pain and stiffness with sciatica.[5] He referred the plaintiff to have an x-ray and a CT scan. Both were taken on 30 March 2009. The radiologist was of the opinion that the CT scan demonstrated disc bulging at L4-5 with mild to moderate central canal stenosis.[6]
[5]PCB 45
[6]PCB 66
18 Dr Andrianakis referred the plaintiff to Mr Barrett, orthopaedic surgeon. The plaintiff first saw Mr Barrett in about mid June 2009. He referred the plaintiff to have an MRI scan, which was taken on 5 July 2009.[7] Mr Barrett also had the plain x-ray and CT scan. Mr Barrett examined the plaintiff on a second occasion. He was of the opinion that the plaintiff had suffered a disruption of the L4-5 disc producing a posterior and postero-lateral disc bulge producing significant lumbar spinal canal stenosis and irritation of the right L5 nerve root producing right-sided sciatica.[8]
[7]PCB 67-68
[8]PCB 52
19 Mr Barrett was of the opinion that the plaintiff needed to pursue conservative treatment by way of rest, the avoidance of bending and lifting and the use of appropriate medication. He added that the presence of lumbar canal stenosis could require operative decompression in the future. He was of the opinion that she was unfit for her pre-injury employment or lighter or part-time employment at that time. He considered that her prognosis for improvement was poor.[9]
[9]PCB 53
20 The plaintiff returned to Dr Andrianakis. It would appear that he discussed the opinion of Mr Barrett with the plaintiff. It is clear that the plaintiff was not interested in surgery. She was referred to Dr Jensen, physician, for treatment. The plaintiff saw Dr Jensen on 4 August 2009. He reviewed the radiology. He was of the same opinion as Mr Barrett regarding the nature of the injury suffered by the plaintiff. His opinion differed from Mr Barrett to some degree. He considered that the disc prolapse was resolving because the pain the plaintiff was experiencing was centralising in her lower back. He did not consider that she required any specific management strategies other than being encouraged to remain active and to undertake specific back exercises. He was of the opinion that she was fit for light to moderate work, but not her pre-injury duties.[10]
[10]PCB 61-62
21 The plaintiff has continued to be treated by Dr Andrianakis. At present she is on a raft of medication directed to the treatment of her lower back. He prescribes Naprosyn, Panadeine Forte, Endep, Tramal and Mersyndol. The plaintiff also takes Panadeine. The plaintiff said that she takes medication on a daily basis. Her use of medication depends upon the symptoms she is experiencing, and whether she needs to change from one type of medication to another due to abdominal pain. She uses Panadeine constantly.[11] She takes between one and four Panadeine Forte per day.[12] She attends a physiotherapist fortnightly.[13]
[11]PCB 34d
[12]Transcript 67
[13]Transcript 68-69
The Medical Opinions
22 The diagnosis of the plaintiff’s injury resonates in the opinions of the other medical practitioners who have examined her.[14] The only medical practitioner who has given a contrary opinion is Dr Yong, specialist occupational physician. He examined the plaintiff on 1 June 2009 before the MRI scan was taken. He was provided with the CT scan. He was not satisfied that the plaintiff had suffered a compensable injury. He considered that the plaintiff had suffered an aggravation of age-related degenerative changes which were resolving, and that the plaintiff had a capacity for employment.
[14]Associate Professor Boling, neurosurgeon, at PCB 74 and 77; Mr Brownbill, neurosurgeon, at PCB 82-83; Dr Thomas, consultant in rehabilitation and pain medicine, at PCB 86-87; Mr Shannon, orthopaedic surgeon, at PCB 140; Dr Ho, occupational health consultant, at DCB 141, and Mr Dooley, orthopaedic surgeon, at DCB 149
23 Mr McDonald did not place any reliance upon the opinion of Dr Yong. Indeed, he informed me that the defendant conceded that the plaintiff had suffered a compensable injury consistent with the preponderance of the medical opinions, and that the plaintiff was not fit for her pre-injury work. In any event, it is clear to me that the opinion of Dr Yong is so out of keeping with the opinions of the other medical practitioners that I should reject it out of hand.
24 The nature of the plaintiff’s injury to her lower back appears to be major. That was certainly the opinion of Mr Barrett, who considered that if conservative treatment and the avoidance of bending and lifting did not permit the plaintiff to control her lower back injury then she could come to surgery because of the presence of lumbar canal stenosis produced the disc rupture at L4-5.[15] Mr Boling was of the same opinion as Mr Barrett.[16] Mr Dooley was satisfied that the plaintiff was suffering from central spinal canal stenosis at L4-5. He was of a similar opinion to Mr Barrett and Mr Boling, that surgery could be required if the plaintiff experienced an increase in symptoms affecting her mobility.[17] Mr Brownbill, who qualifies himself as a specialist in spinal surgery, did not consider that the plaintiff required any specific treatment.[18]
[15]PCB 53
[16]PCB 74 and 77
[17]DCB 149
[18]PCB 82-83
25 What is clear from my analysis of the medical evidence is that the plaintiff suffered a major injury to her lower back at the L4-5 level which resulted in sciatica and spinal canal stenosis. I understand canal stenosis to be a narrowing of the spinal canal which, according to Mr Barrett, Mr Boling and Mr Dooley, is the cause of the plaintiff's sciatica and the reason why each of them advocate surgical amelioration of the pressure on the plaintiff’s spinal canal by the damaged disc.
26 By inference, and especially from the opinions of Mr Barrett and Mr Dooley, there was a risk that the condition of the plaintiff's lower back would deteriorate, bringing her closer to the need for surgery. The question which is most relevant in this proceeding is whether the plaintiff was actually experiencing a deterioration in the condition of her lower back through 2010, and by January 2011, rendering her incapacitated for suitable employment.
The Alleged Deterioration
27 I accept the plaintiff's evidence that she was able to work through 2010 with difficulty, and that the condition of her lower back was deteriorating to the point that by January 2011, the symptoms that she was experiencing rendered her incapable of working any further.
28 I am fortified in reaching that conclusion by the evidence of Dr Adrianakis. By January 2011, the plaintiff told Dr Adrianakis that she was suffering from severe and constant pain and could not work. He accepted her complaints. His clinical notes demonstrate why he accepted her complaints. The entries in his clinical notes from 6 April 2010 to 2 November 2010 record histories taken from the plaintiff of persisting problems with her lower back, the prescription of medication, and referred pain from the plaintiff's lower back into her legs.[19]
[19]PCB 47c(i) - 47c(iv)
29 The entry in Dr Adrianakis's clinical notes for 17 January 2011 reads as follows:
“pt has been getting worse with lower back pains
not coping well
aches and pains
not sleeping always tired an easy fatigue
poor mobility
muscle spasms in lower back
tender L3-4-5
reduced ROM
leg pains and weakness
pt not coping with current work duties.”[20]
[20]PCB 47c(v)
30 On that occasion, Dr Adrianakis prescribed Naprosyn, Panadeine Forte and Panadeine. It would appear that he continued prescribing that type of medication for the plaintiff's use through 2011.
31 The plaintiff worked through 2010. She worked 30 hours per week on modified duties. Her duties were limited to taking clients of the defendant shopping; to appointments; providing them with refreshments and occasionally doing some light cooking for them.[21] Dr Andrianakis certified the plaintiff as fit for those hours and those duties. However, it would appear that he had some misgivings regarding the plaintiff's capacity to undertake the work through 2010. He said:
[21]PCB 25
“Q.And generally she was telling you throughout 2010 that she was coping with those light duties, wasn't she?---
A.She wasn't coping. She was complaining. If you – going back to December 15, in my notes I said, ‘Trial six hours’. I just want to point out it wasn't my idea. I didn't really think she should go up to six hours, which is why I said trial. It was her idea.
Q.Her idea?---
A.Yes. 'cause she was under a lot of pressure at the nursing home. It's a close community and she felt very pressured.”[22]
[22]Transcript 57-58
32 Despite his reservations, Dr Andrianakis conceded that he certified the plaintiff as fit for that work through 2010. When the plaintiff saw Dr Andrianakis in January 2011 she told him that her lower back was worsening. It would appear that Dr Andrianakis accepted the plaintiff's complaints as being consistent with the nature and extent of the injury to her lower back. He certified her as unfit for work. His explanation for why he thought there had been a worsening in the plaintiff's lower back was that the bulge in the disc had probably worsened, and that the muscles in her lower back had probably weakened over the years. He is of the opinion that the plaintiff cannot return to work.[23]
[23]Transcript 60-61
33 The plaintiff saw Dr Andrianakis on 5 August 2011. On that occasion he discussed the defendant’s offer of employment with the plaintiff. The entry in his clinical notes for that day reads as follows:
“pt for r/v
has new RTW plan
to do activities
pt wanting to try
lower back remains a problem
begin with two hrs twice a week
d/w RTW pain and changes
pt not sure she can cope with this … .”[24]
[24]PCB 47c(vi)
34 The plaintiff next saw Dr Andrianakis on 19 August 2011. The entry in his clinical notes for that day reads as follows:
“pt remains unwell
tired and fatigued
pains and discomfort at work
not coping with current work duties
tender++
muscle spasm
pains with sitting or standing for prolonged periods
pt not coping well with pains and disability
getting depressed poor sleep
anxious
concerns re future … .”[25]
[25]PCB 47c(vii)
35 It would appear that the plaintiff was plainly worse off by 19 August 2011. Dr Andrianakis’s clinical examination demonstrated significant tenderness and muscle spasm. On that occasion he prescribed the plaintiff Naprosyn, Panadeine Forte, Tramadol (the same as Tramal) and Endep.
36 Mr McDonald submitted that the plaintiff’s lack of motivation was demonstrated by her failure to continue working 30 hours per week into 2011, and then not taking up the defendant's offer of employment in August 2011.
37 I reject that submission. Firstly, I accept the evidence of Dr Andrianakis that he had misgivings about the plaintiff working 30 hours per week through 2010, and I am satisfied that the plaintiff was not capable of undertaking that work by January 2011. I accept his evidence that the plaintiff's lower back was worsening by that stage. Secondly, it is clear that the plaintiff wanted to work. That is clear from the evidence of Dr Andrianakis that the plaintiff's working pattern in 2010 was not his idea, but hers. He was not satisfied that she would cope with the work, and indeed, I find that she did not cope with the demands of it and was forced to cease work in January 2011. Thirdly, the plaintiff embraced the defendant’s offer of employment and made an attempt to return to work in August 2011. I accept the evidence of Dr Andrianakis, contained in the entries in his clinical notes for 5 and 19 August 2011, that the plaintiff was in a parlous state of health and found the attempt to return to work beyond her.
38 All of this must be seen in a setting of the plaintiff having suffered a major injury to her lower back, with Mr Barrett, Mr Boling and Mr Dooley being of the opinion that the plaintiff could well come to surgery to decompress spinal canal stenosis in her lower back.
39 I accept the plaintiff's evidence that she was doing her best to maintain her employment with the defendant on modified duties through 2010. I accept that she was having difficulty coping, and by January 2011 was unable to cope with those modified duties. I accept that she was motivated to return to work in August 2011, but was unable to cope with the duties she was required to perform,[26] and in that respect, I repeat that I accept the evidence of Dr Andrianakis, and in particular, what is evident from the entries in his clinical notes on 5 and 19 August 2011.
[26]Transcript 70-72
40 I also accept the plaintiff's evidence that she has suffered persistent pain in her lower back with either referred or sciatic pain affecting her legs. I accept that she requires a serious volume of medication to deal with pain she experiences on a daily basis. I accept that in the context of her non-working life she has difficulty undertaking domestic tasks, enjoying gardening and engaging in activities with her Greek community doing volunteer work with her church.[27]
[27]Transcript 70-71
41 I was impressed by the evidence of Dr Thomas, who was cross-examined regarding the defendant’s offer of employment developed in July 2011. He accepted that the physical restrictions referred to in the offer were reasonable.[28] However, his global impression of the offer of employment was that the tasks referred to in that offer of employment were not appropriate for the plaintiff.[29] In particular, he did not accept that the plaintiff could cope with the task of meal preparation and organising afternoon teas.[30] In that context, he considered that the plaintiff would have significant difficulty manoeuvring trolleys along corridors and trying to bend and twist in narrow and confined areas.
[28]DCB 105. The restrictions were arrived at by Dr Miller, who examined the plaintiff on 7 April 2011 and who provided a report to the insurer dated 11 April 2011 at DCB 60-66, and in particular, at DCB 64
[29]Transcript 43
[30]Transcript 50 and 53
42 The evidence of Dr Thomas fortifies my conclusion that by January 2011 the plaintiff was not capable of work, even of a modified or light nature. I find that the plaintiff is presently not capable of undertaking the work she was performing in 2010 nor the work described in the offer of employment made by the defendant in July 2011.
43 The defendant showed film taken of the plaintiff on 12 and 13 July 2012. The film taken on 12 July 2012 shows the plaintiff driving her car; alighting from her car; re-entering her car; standing and walking in and around shops; walking around a supermarket and other shops. There was nothing in the film taken on that day which was inconsistent with the plaintiff having suffered a major lower back injury. The film taken on 13 July 2012 was very short. It showed the plaintiff on her haunches digging in her garden for a very short period of time. There was nothing in the plaintiff's movements on that occasion which was inconsistent with her having suffered a major lower back injury.
44 Therefore, I find that the plaintiff meets the statutory test with respect to loss of earning capacity, and more particularly, that she has suffered a serious permanent impairment of the function of her lower back which has rendered her permanently incapable of undertaking suitable employment.
45 In the circumstances, it is unnecessary for me to have to consider pain and suffering separately.[31] However, if I had to, I would have had no hesitation in finding for the plaintiff. The fact that the plaintiff has suffered a major injury; experiences fairly consistent pain; has the spectre of surgery hovering over her; is taking a raft of painkilling medication and is resorting to intermittent physiotherapy for pain relief, and is unable to engage in domestic, recreational and work activities which were a part of her day-to-day life, speak volumes of pain and suffering consequences which meet the statutory test.
[31]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
Conclusion
46 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
47 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
---
0
2
0