Maloney v H W Greenham and Sons Pty Ltd and VWA
[2011] VCC 1205
•2 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05957
| GREGORY ANTHONY MALONEY | Plaintiff |
| v | |
| H W GREENHAM and SONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 28 April 2011 |
| DATE OF JUDGMENT: | 2 May 2011 |
| CASE MAY BE CITED AS: | Maloney v H W Greenham and Sons Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1205 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Serious Injury Application – Injury to cervical spine which precluded return to manual work – Relevance of plaintiff’s personality in assessing capacity for suitable employment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Arnold Dallas & McPherson |
| Ms E McKinnon | ||
| For the Defendants | Mr A J McG Moulds SC with | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injury sustained in the course of his employment, and in particular arising from an incident which occurred on 14 September 2006.
2 The injury relied upon by the plaintiff is an injury to the cervical spine and the impairment is that of the neck with referred pain into the shoulder and right arm.
3 In support of the application, the plaintiff relies upon three affidavits sworn by him on 5 August 2009, 12 April 2010 and 4 April 2011 respectively. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise the parties rely upon medical and like reports tendered by them.
4 In his affidavits, the plaintiff deposes as follows:
•
He was born in Echuca on 9 January 1969. Having completed his Year 11, he then completed a four-year sheet metal worker apprenticeship. Having completed his apprenticeship he was unemployed for approximately two years, and on 26 January 1993 he commenced permanent employment with the first defendant (Greenham);
•
Before sustaining the subject injury, the plaintiff described himself as being fit and well and as enjoying freshwater fishing and camping. He described his work as being physically demanding. He said that he lived on his own on a small property in Echuca, that he had a small garden which he looked after, and, in addition, he undertook most of the home maintenance involved in managing his property;
•
On 14 September 2006 the plaintiff said suffered a sudden and severe neck pain and pain in his right shoulder and right arm whilst processing cattle innards. Having consulted both a chiropractor and Dr Zhong Yu, a general practitioner, the plaintiff returned to work on the following day and undertook light duties, which he had difficulty performing, until 6 October 2006, at which time Dr Yu certified him as being unfit for duties until 17 October 2006;
•
On returning to work late in October 2006, the plaintiff continued to be employed in light duties;
•
In November 2006 the plaintiff was referred to Mr Richard Bittar, a neurosurgeon, who arranged for him to undergo an MRI scan which revealed the presence of a C5-6 intervertebral disc prolapse with compression of the C6 nerve root. Notwithstanding this diagnosis, the plaintiff continued in his light duty work with Greenham until 19 December 2006 when Dr Yu certified him as unfit for work until January 2007;
•
He returned to work in January 2007 and, although he had been certified as fit to perform modified duties, he said he was given a mix of duties, some of which involved heavy work. By mid June, the plaintiff said that this all became too much for him and he was forced to leave work. He described being upset by the treatment he had received from Greenham after the incident;
• As at 5 August 2009 the plaintiff complained of the following symptoms: (i) constant pain and stiffness in his neck which varied in intensity, such that he had good days and bad days; however, he said the pain was always present;
(ii) neck pain radiating into his right shoulder and right arm, causing him to experience pins and needles in the right forearm, right thumb and right first finger. The pain also radiated into the back of the plaintiff’s head, causing him to suffer headaches which on occasions were severe.
5 The plaintiff said that his pain was aggravated by various activities such as lifting, pulling and pushing movements, but that on occasions his symptoms of neck and shoulder pain would flare up for no reason. He said his pain disrupted his sleep and that by reason of the fact that most of his friends were former workmates, he was now socially isolated. He described activities such as fishing and camping as presenting too many problems for him now, and said that he was restricted in many of the heavier chores around his house. He said:
“The incident has had a terrible effect upon my life and upon my livelihood. It has changed me from someone who was working full-time and able to look after myself, into somebody whose primary concern is now basically to try to cope.”
6 In his affidavit of 21 April 2010, the plaintiff deposed that he had been applying for jobs but had so far been unsuccessful. He said he was unable to do heavy labouring work, that he could not engage in jobs involving heavy lifting and that as he was over forty years of age, he believed his employment prospects for labouring work were being grim. The plaintiff made a similar statement in his affidavit of 4 April 2011, commenting:
“I still believe my employment prospects for labouring jobs is very bleak.
I do not believe I could work eight hours per day or nine hours per day.”
7 In viva voce evidence it was put to the plaintiff that he effectively walked out of his employment at Greenham’s. The plaintiff denied this. Essentially he maintained that Greenham’s had engineered his departure by giving him work duties which were unsuitable and workmates which were inappropriate.
8 He agreed that he had not sought medical treatment for some 18 months and that he had last employed medication some two years ago.
9 He accepted:
•
that he had been certified as being fit for light work involving the avoidance of heavy lifting and repetitive neck and elbow movements since March 2009;
•
that he had virtually exclusively applied for work to which he was unsuited by reason of his accident-related physical disability.
10 Whilst this behaviour seems inconsistent with motivation to return to work or to rehabilitate himself, I am satisfied, having regard both to the medical evidence which generally describes the plaintiff as being well motivated, and the plaintiff’s refusal to adopt the role of an invalid by failing to accept the suggestion by Centrelink that he apply for a disability pension, that the plaintiff’s behaviour in this regard stems from his lack of confidence in dealing with people and his rigid thought process, which causes him to seek work with which he is familiar.
11 In this regard I refer in particular to the plaintiff’s evidence at transcript p.22 in which he was asked:
“There are a large number of retail outlets in Echuca, there is a large number of manufacturing outlets and food plants?” Answer: “That’s correct.” “There is a lot of work involved in those industries alone, isn’t there, in the Echuca region?” “Yeah. A lot of labouring works.” “Is that all there is available, Mr Maloney, only labouring work in Echuca?” “Well, if I had the confidence I would probably get a job selling cars but I haven’t got the confidence, have I, or get a job in a bar, but I know, you know, I haven’t got that.”
and further, the plaintiff’s evidence in re-examination at transcript p.38 where
he was asked:“Just in relation to that, you have told my learned friend that you have required to work like a barman in the sense of talking to people and discussing things with them, et cetera?” Answer: “No, I haven’t.” “How do you think you would handle that sort of thing?” “I think I would be stressed out like I am now, threatened, nervous, shaken.”
12 In this application, reliance is placed by Mr Tobin, the senior counsel who appeared with Ms McKinnon on behalf of the plaintiff, upon the personality of the plaintiff as being an important factor which should influence my analysis as to the effect of the plaintiff’s injury upon his life and lifestyle, and particularly upon his capacity to earn income, given the limitations which the injury which he has sustained to his cervical spine imposes upon his capacity to carry out unrestricted physical work.
13 Upon issue the following evidence is relevant:
• In a report dated 15 August 2008, Dr I Chakrabarti, a psychiatrist who treated the plaintiff during an acute period of mental illness from which the plaintiff suffered in July 2007, described the plaintiff as presenting with a strong Cluster A Personality Trait Dysfunction which requires long term cognitive behavioural therapy. • A number of medical practitioners have also opined the plaintiff’s unusual presentation: (i) Emeritus Professor of Surgery Vernon Marshall who, in a report dated 29 December 2008, described the plaintiff as presenting with a mood disorder which required urgent psychiatric assessment;
(ii) Mr Brian Dooley, an orthopaedic surgeon, who, in a report dated 12 May 2010, described the plaintiff as presenting with a borderline personality disorder;
(iii) Mr Kevin King, an orthopaedic surgeon, who, in a report dated 16 June 2009, described the plaintiff as presenting in a slightly odd and intense manner; and
(iv) Miss Judith Long, an occupational therapist, who, in a report dated 25 March 2010, described the following findings based upon her testing of the plaintiff, namely that his reading level was the equivalent of a nine year old and that the plaintiff could not read words such as imagine, situated, appeared or acquire and that he was unable to spell words such as met, exit, or accident.
14 Also instructive upon this issue is a health questionnaire completed by the plaintiff on 19 September 2006 in which he described himself as being extremely shy or sensitive, touchy, prone to worrying, frightened of being alone, and as being uncomfortable in the presence of strangers or unfamiliar places.
15 In the course of both evidence and cross-examination, the plaintiff presented in a manner which I consider to be unduly aggressive, antagonistic and often confrontational. Indeed, the plaintiff struck me as someone who is largely lacking in social skills and someone who possesses very little insight into the inappropriateness of his behaviour or the effect of that behaviour (an example of this being that often, after giving a very inappropriate answer to a very reasonable question in cross-examination, the plaintiff would smirk indicating what appeared to be satisfaction with the way he was dealing with the task of giving evidence. Examples of this can be seen at transcript 12, lines 12-20; transcript 15, line 7; transcript 16, line 7; and transcript 24, lines 25 through to transcript 25, line 9). In making these observations, I do so without levelling any criticism towards the plaintiff, whose behaviour, in my opinion, was unintentional and was consistent with the presentation which might be expected given the medical reports to which I have referred.
16 Taking into account the plaintiff’s affidavit material, his viva voce evidence, and the medical evidence to which I have referred, together with my observations of the plaintiff in the course of his evidence, I am satisfied that prior to sustaining his injury the plaintiff led a relatively simple life, and that whilst his work provided him with limited social contact it represented largely his only avenue of social contact. I am also satisfied that it is probable that the plaintiff lived at the margin of life in the community and was most probably assisted in this regard by the structured employment which he had maintained for a considerable amount of time with Greenham.[1] To his credit, the plaintiff left his work with Greenham’s having accumulated approximately 700 hours of sick leave and sufficient funds to purchase a share portfolio and a house which was the subject of a mortgage.
[1] In this respect I find the observations by Mr Dooley in his reports as to the importance of rehabilitating the plaintiff back to the workforce as being prescient.
The Consequence of the Plaintiff’s Injury upon his capacity to engage in
Suitable Employment17 Dr Richard Bittar, the plaintiff’s treating neurosurgeon, in a report dated 2 February 2009, opined that the plaintiff had a limited capacity for work as a result of the condition of his cervical spine; that the plaintiff was unable to engage in his pre-injury duties and was fit only to work in modified duties in respect of which he imposed the following limits: avoid lifting objects weighing more than 6 to 8 kilograms, avoid engaging in repetitive upper limb activity, avoid repetitive neck movements or placing the neck in positions of extreme flexion, extension or rotation.
18 In a further report, dated 12 August 2010, Dr Bittar imposed similar restrictions as to the work which the plaintiff was fit to undertake, commenting:
“Taking in[to] account his age, education, training and skills, he would most likely need a vocational assessment and retraining if he is to find a suitable position.”
Given that this opinion is expressed by the plaintiff’s treating neurosurgeon, it should, in my opinion, be accorded considerable weight.
19 In his report dated 16 June 2009, Mr Kevin King opined that the plaintiff was chronically disabled and was no longer fit for heavy manual work, that his condition was stabilised and that the plaintiff could probably manage light work if it became available to him.
20 In a report dated 17 August 2009, Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, opined that the plaintiff:
“... has a work capacity. He has the capacity to perform light work lifting up to but not beyond 8 kilograms. He should avoid having his neck in extremes of movement whilst he is lifting such objects. Ideally a position lifting objects at bench height would be preferable. He could perform light process work and the like. Within the nature of these restrictions he could perform such work in a full-time position. The prognosis is generally favourable. The prognosis is favourable on the basis that he perform the nature of work within the restrictions that I have outlined. Any work beyond the physical tolerances at the C5/C6 disc is likely to lead to an aggravation of his condition.”
21 In a further report, dated 31 January 2011, Dr Thomas expressed a similar view, opining that the plaintiff:
“… could lift up to 8 kilograms frequently. ...
Mr Moloney presents as a fairly inarticulate, straightforward man of limited education and cognition. His strengths lay in his physical abilities. He does have [a] work capacity, but [is] not able to return to the type of work that he performed in the past with unrestricted work at an abattoir or unrestricted work in sheet metal. Vocational limitations apply. Light physical work is possible with a lifting limit of 8 kilograms and in such a position he could work up to full-time. ...
The nature of his cervical spine injury is an organic one. He sustained an impairment which is permanent. His current condition will continue in the foreseeable future.”
22 Mr David Brownbill, a consulting neurosurgeon, in his report dated 24 February 2010, opined:
“From a physical point of view he would be capable of light duties avoiding heavy lifting, forced cervical spine mobility, or holding his neck in a fixed position, however noting his age of forty one years, his work experience being limited to heavy manual activity, his ongoing activity related neck and shoulder pain and the demonstrated C5-6 intervertebral disc derangement, I consider on probability and realistic terms he would have difficulty obtaining any employment for which is suited.”
23 In a further report, dated 20 January 2010, Mr Brownbill expressed a similar opinion, commenting:
“He would, from a physical neurosurgical point of view, be capable of return to duties avoiding the physical activities of heavy lifting, forced cervical spine mobility or holding his neck in a flexed position. As I have outlined above however, he may have trouble undergoing the required re-training.”
24 Mr Michael Dooley, an orthopaedic surgeon, in his report dated 19 October 2009, commented:
“As outlined above, Mr Moloney at times became somewhat angry during his history presentation. It is evident from assessing him that he does have a personality disorder. This will at times make it difficult for him to deal with people in his everyday life as well as in his working life.”
25 He described the plaintiff presenting as a:
“... sensible and genuine historian. He is doing his best to return to work. As outlined above, in my view probably the most important part of his current management is organising a return to appropriate work.”
26 In a further report, dated 12 May 2010, Mr Dooley opined:
“I believe that Mr Moloney is unable to carry out regular heavy physical
work or work that involves a lot of activity at and above head level.I believe that Mr Moloney will continue to note intermittent cervical pain. He may note occasional right upper-limb pain. He does not require ongoing treatment.
As previously noted I believe that Mr Moloney does have a borderline personality disorder. This may well make it difficult for him dealing with people, work colleagues.”
27 In a final report, dated 11 October 2010, Mr Dooley opined:
“Mr Moloney is capable of carrying out a range of light physical work and clerical duties. From the orthopaedic point of view, he would be able to carry out work as a hand-packer and passive security officer. I note that it was suggested that he might be able to do car-washing type work. This would depend on the amount of bending and manoeuvring of his neck that such work involved.”
28 In my opinion, whilst medical practitioners such as Dr Bittar, Dr Thomas and Mr Dooley are well qualified to express opinion as to the activities which are within the range or beyond the plaintiff’s tolerance for activity having regard to the nature of his injury, evidence of that nature provides only the starting point for the analysis which is required in this application: namely, whether the particular restrictions to be applied to the plaintiff’s working conditions are capable of being accommodated within occupations which exist in the employment market relevant to that person which is governed by the definition of ‘suitable employment’ under the Act.
29 In a report dated 26 April 2010, co-authored by Ms Shannon Maguire, a vocational consultant, and Ms Catherine Miller, a physiotherapist, the authors opine that the plaintiff is fit to work as:
• a packer; • a security officer; and • a car-wash attendant. 30 Having regard to the medical evidence to which I have previously referred, and my findings as to the plaintiff’s personality, I am satisfied that the plaintiff would be totally unsuited for work in which he was required to deal regularly with members of the general public or to manage the demands made by members of the general public.
31 In making this finding I note that my impression of the plaintiff in this regard is shared by Mr Dooley, who commented in his report of 19 October 2009:
“Mr Maloney at times becomes angry during his history presentation. It is evident on assessing him that he does have a personality disorder. This will at times make it difficult for him to deal with people in his everyday life, as well as in his working life.”
32 Accordingly, I am satisfied that the plaintiff would both be unsuited for and incapable of meeting the expectations attended with employment as a security officer, the job description of which requires an ability to deal with members of the public in various situations.
33 I am satisfied that the plaintiff does not maintain the capacity to work as a car- wash attendant, having regard to the personality issues with which he presents in combination with the problems he experiences with his neck, shoulder and right arm. In particular, I take into account in this regard the opinions expressed by Dr Bittar that he should not engage in repetitive upper limb activity and the reservation expressed by Mr Dooley as to the plaintiff’s capacity to engage in this type of work.
34 Whilst, in their report, Ms Shannon Maguire recommended work as a light packer as being within the plaintiff’s physical capacities, when account is taken:
•
firstly of the classification of this work as involving the lifting of items up to 9.1 kilograms and as involving a degree of pushing and pulling;
•
secondly the opinion of the plaintiff’s treating surgeon Dr Bittar that the plaintiff should not engage in work which required him to lift objects weighing more than between 6 to 8 kilograms; and
• thirdly the recommendation to similar effect made by Dr Clayton Thomas; I find it surprising that the authors could opine in the course of their report that work which involved lifting 9.1 kilograms was light work which was well within the light to medium range of work recommended for Mr Maloney by his medical practitioners; and I am satisfied that light packing work is beyond the plaintiff’s physical capacity given the injury he has suffered.
35 I express this opinion notwithstanding the opinion expressed by Mr Dooley in his report dated 11 October 2010 that the plaintiff retained a capacity to perform the duties of a hand packer. In this respect, I prefer the opinions of Mr Bittar and Dr Clayton Thomas as to the plaintiff’s capacity. I find the fact that these experts arrived independently at virtually identical opinions to be persuasive, having regard to the fact that Dr Bittar approaches his analysis from the stance of the plaintiff’s treating neurosurgeon and Dr Thomas from the stance of a specialist consultant in rehabilitational pain.
36 In her report to which I have previously referred, Ms Judith Long opined:
“The plaintiff has lost his capacity to return to his pre-injury work as a meat worker. The medical restrictions placed upon the type of work which the plaintiff should perform which limit frequent and forceful use of his right arm, frequent heavy lifting, or reaching upwards, sustained or forceful neck flexion or neck extension substantially limit the fields of work which are available to the plaintiff. Mr Maloney’s place of residence in Echuca further restricts his access to any suitable employment. I conclude that no commercially viable occupation in the open labour market for which Maloney is likely to qualify meets the demands of suitable employment and this situation will continue for the foreseeable future.”
37 In the present case, having regard to:
•
the restrictions imposed upon the activities which the plaintiff is capable of performing by his treating neurosurgeon and the other medical witnesses to which I have referred;
•
the plaintiff’s personality, which I have commented upon and which in itself restricts the range of work which might be available to him; and
•
my findings as to the reports of both of the employment consultants, neither of whom has persuasively been able to identify the existence of a theoretical job which falls within the plaintiff’s physical capacity when account is also taken of his personality traits;
I am satisfied that the plaintiff has established that the physical injury which he has suffered has had the effect of destroying any true capacity which he has to engage in suitable employment.
The issue which arises as to the Plaintiff’s lack of rehabilitation
38 There is no issue that the plaintiff has not taken part in any rehabilitation or retraining process. It is put on behalf of the defendant that the plaintiff, bearing the onus of proving his inability to be retrained or rehabilitated, must fail in this application having regard to his failure to undertake retraining or rehabilitation, given the opinions expressed by a number of medical practitioners which attest to his capacity to engage in suitable light work.
39 The consequence of the plaintiff’s failure to undergo retraining or rehabilitation must not, in my opinion, be considered in a vacuum but rather having regard to the probable benefit which might be achieved from that process.
40 Given the findings I have made as to the plaintiff’s personality, I am satisfied on the balance of probabilities that, regardless of any rehabilitation or retraining which the plaintiff was to undertake, he would not be suited for employment in an area in which he was required to deal with members of the public. Accordingly, employment activities which are often mentioned, such as console operator, pedestrian crossing supervisor, or the like, are not relevant in this proceeding.
41 Further, having regard to the medical evidence, which overwhelmingly supports the position that the plaintiff’s physical injury has stabilised and that he is fit only for light work with the lifting tolerances imposed by Dr Bittar and Dr Thomas, I am satisfied that further physical rehabilitation would not alter the plaintiff’s level of incapacity or increase the range of employment opportunities available to him which involve physical work.
42 Further, having regard to the plaintiff’s age, his personality and his poor level of literacy, I consider that the plaintiff would be unsuitable for, and would gain no benefit from, retraining for the purpose of employment in office work, clerical work, or other work of that type. I am satisfied that such retraining would be unlikely to have any positive influence upon the range of employment opportunities available to him.
43 Finally I take the comment by Ms Judith Long in her report, to which I have previously referred, namely that:
“Further occupational rehabilitation and/or re-training in the future is unlikely to lead to suitable paid employment in the open labour market for the plaintiff given the extensive re-training required to qualify him for an occupation with low physical demands”
to be a comment which supports the finding I have made.
44 In the circumstances, I am satisfied the plaintiff has satisfied the onus upon him under s.134(AB)(38)(g) of the Act.
Conclusion
45 Given my finding that the plaintiff has effectively lost all capacity for gainful employment by reason of the impairment of the function of his cervical spine and associated symptoms from which he suffers in his right shoulder and arm, I am satisfied that the plaintiff has established that he has sustained a loss of earning capacity the consequences of which are, when judged by comparison with other cases in the range of possible impairments, fairly to be described as being more than significant or marked and as being at least very considerable.
46 Accordingly, I am satisfied that the plaintiff is entitled to the orders sought in this application, namely leave to commence a proceeding claiming damages
47 I will hear the parties as the precise terms of the order to be made in the matter and also upon the issue of costs.
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