McDonald v National Parts Pty Ltd v Victorian WorkCover; Authority
[2010] VCC 490
•21 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03982
| MATHEW JOHN McDONALD | Plaintiff |
| v | |
| NATIONAL PARTS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 and 10 May 2010 |
| DATE OF JUDGMENT: | 21 May 2010 |
| CASE MAY BE CITED AS: | McDonald v National Parts Pty Ltd v Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0490 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB
Accident Compensation Act 1985 – Complex Regional Pain Syndrome.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Ryan Carlisle Thomas |
| Mr P Rosenberg | ||
| For the Defendants | Mr A Middleton with | Lander & Rogers |
| Ms C Boyle | ||
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a knee injury suffered by the plaintiff in the course of his employment with the first defendant on 18 August 2003 (“the injury”).
2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.
3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function … .”
4 The body function relied upon by the plaintiff is the left leg.
5 The plaintiff originally sought leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act. In the course of the hearing of the application, Mr Middleton, who with Ms Boyle appeared for the defendants, indicated that the second defendant was prepared to issue a certificate consenting to the bringing of proceedings with respect to pain and suffering – s.134AB(16)(a) and (17) of the Act. Thus the application now is only concerned with consequences with respect to loss of earning capacity.
6 Section 134AB(38)(j) requires me to assess whether, at the present time, the plaintiff has a serious injury.
The Issues
7 Mr Harrison, Senior Counsel, who with Mr Rosenberg appeared for the plaintiff, contended that the plaintiff currently had no earning capacity or, in the alternative, that the plaintiff had a loss of earning capacity of 40 per cent or more. Mr Middleton relied upon s.134AB(19)(b) of the Act, which states:
“(19) For the purposes of subsection (16)(b)— (a) …
(b)
for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.”
and upon s.134AB(38)(g), which states:
“(38) (g)
a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
and the comments made upon these subsections in Barwon Spinners & Ors v
Podolak (2005) 14 VR 622, at pages 637 and 638.8 He submitted that the plaintiff had not discharged the onus cast upon it by these subsections.
9 Although it was indicated at the outset that some “disentangling” may be necessary, this was not pursued in final addresses.
The Plaintiff’s Evidence
10 The plaintiff relied upon affidavits sworn by him on 25 February 2009 and 15 March 2010 and gave viva voce evidence before me.
11 He was born on 23 November 1979 and thus is now aged thirty. He went to Year 9 level at school and then worked in various unskilled manual jobs with some unemployment. As a teenager, he spent six months undergoing a furniture making traineeship. He smoked marijuana quite extensively in his teenage years. He commenced employment with the first defendant on 25 April 2002 as a storeman/order picker. He was given a trolley with a skateboard attached to move around the first defendant’s large warehouse collecting items which had been ordered. On 18 August 2003, he injured his left knee when operating the skateboard and suffered the injury. The plaintiff resigned his employment with the first defendant in November 2003 to travel to Queensland for family reasons. He has not worked since.
12 The plaintiff returned from Queensland after four or five months. Upon his return he stated that he was abusing marijuana heavily. The plaintiff states that he ceased abusing marijuana a few weeks ago. Even in 2007, he was using 2 grams per day. He presently walks with the aid of a walking stick. He can walk short distances without his walking stick if he can hold onto something and balance.
13 Mr Nigel Broughton, orthopaedic surgeon, performed an arthroscopy on the plaintiff’s left knee on 23 July 2005.
14 On 22 May 2008, Dr Murray Taverner, a pain management specialist, implanted a spinal cord stimulator in the plaintiff “to manage the chronic neuropathic pain affecting his left knee”. The plaintiff stated this had been of some assistance and now he has less pain and sleeps better although on the night before he gave evidence he had only slept two-and-a-half-hours.
15 Since 2004, the plaintiff has undergone three pneumothoraxes. He states that this was necessary on account of emphysema due to smoking of both tobacco and marijuana.
16 The plaintiff is presently undergoing a rehabilitation course at the Victorian Rehabilitation Centre at Glen Waverley. He has attended two sessions so far. He stated they lasted from about 9.00 am until 1.30 pm and so far they had consisted of physiotherapy and relaxation techniques which focussed upon how the body reacts to pain. The plaintiff stated that he found these sessions helpful.
17 The plaintiff, to his credit, is keen to resume some form of employment. He struck me as an honest witness whose credit was not challenged in any way.
Medical and Like Evidence
18 The plaintiff’s present injury is described in medical reports as Complex Regional Pain Syndrome or Reflex Sympathetic Dystrophy.
19 On 10 August 2007, a Medical Panel comprising five members expressed the opinion that the plaintiff had no current work capacity and that this situation was likely to continue indefinitely. I appreciate that this opinion is nearly three years old and that it is in no way final and conclusive, although I can take it into account, as I do – see Pope v W S Walker & Sons Pty Ltd [2006] VSCA 227, at paragraph 42.
20 The plaintiff’s general practitioner for many years, Dr George Maragoudakis, has been seeing the plaintiff regularly since October 2003 and in recent times monthly. He stated in a report of 1 February 2005 that the plaintiff was totally incapacitated for work. He repeated this view in a report of 16 May 2007 and a report of April 2010. In the latest report, he states that the plaintiff’s condition has stabilised and concludes that his total incapacity is permanent. He states:
“There is essentially no hope of any return to gainful employment.”
21 Dr Bruce Kinloch, consultant physician in pain medicine and rehabilitation, in a report to the plaintiff’s solicitors dated 17 March 2009, states:
“He is permanently incapacitated for any type of manual work. Whether he could be retrained into sedentary work depends on his education and potential in this regard. … He has significant impairment of mobility and chronic pain.”
22 Dr Robert Hjorth, consultant neurologist, saw the plaintiff at the request of his solicitors on 23 April 2009 and 17 February 2010. In a report of 5 March 2010 to the plaintiff’s solicitors, he states:
“…
As I set out in the earlier letter, the prognosis of Reflex Sympathetic Dystrophy is not all that well defined. Some people get better in the first 2 or 3 years but in Mr McDonald’s case the trouble has been present since an injury in 2003 and has been worse over the last 5 years or so. I think the chance of this recovering now is negligible.
Mr McDonald has been left with a left leg which is profoundly disabled. He can walk only by using a walking stick. He has not been able to do any work and he does not engage to any extent in social or recreational activities.
I think that he is totally and permanently incapacitated for work. I cannot think of any way in which he can be brought back and I cannot think of any treatment that is likely to help him. Mr McDonald is a young man and it is very distressing that we can do so little to help him.”
(emphasis added)
23 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 25 June 2009 at the request of his solicitors. In a letter dated 29 June 2009, he states:
“Diagnostically, the overriding abnormality is that of complex regional pain syndrome to his left lower limb, most noted around his left knee and ankle.
The onset of this condition occurred after hurting his knee at work on the
18th august 2003.The nature of this curious condition is that after sometimes often trivial injuries, pain can become severe and overwhelming and this condition can occur.
He had an arthroscopy without benefit. Partly this was due to the fact that there was no major abnormality within the knee itself, but partly due to the fact that an arthroscopy would not solve the dominant complaint being the complex regional pain syndrome. It is unlikely that there will be any reversal of this disease process.
Almost certainly there will be permanent consequences of the physical impairment. These consequences will continue into the foreseeable future. The impairment is the loss of body function to his left lower limb. The disability is the effect that his limited mobility has on a day to day basis for him.
The consequences to him should be considered to be serious in that the physical injury has left him with very considerable sequelae.
Initial injury to the knee triggered the onset of Complex Regional Pain
Syndrome Type I.Your client suffers from marked permanent impairment as a consequence of that injury
The permanent impairment is likely to continue into the foreseeable future.
Your client has basic secondary school education only. There are major vocational limitations. His condition is still one of total incapacity. His condition would preclude success in returning to any form of mainstream employment.
His condition would preclude the ability to set restrictions on him even with respect to a theoretical position. He would not be able to sustain any postures that would be required for him to perform any work that one would consider reasonable for him in order to be able to outline restrictions that might be achievable for him.
Further improvement is anticipated, but it is impossible to quantify the extent of that improvement. At best, however, it is likely that only modest improvement will occur.”
(emphasis added)
24 Dr Thomas again examined the plaintiff on 25 March 2010 and provided a report dated 19 April 2010 to the plaintiff’s solicitors. In it he states:
“He presents with marked incapacity. He is a young man of 30 with significant levels of disability. The treatment for this condition is primarily supportive and symptomatic. He has basic secondary school education only. Although he talks about retraining and the like, he does not present in such a manner that could hold any optimism for this to take place. There has been no interval change of note since I last saw him. …
. . .
Complex Regional Pain Syndrome involves alteration in the pain processing pathways at all levels above the actual injury. It involves changes at the-spinal level and at a cortical level of the brain. It involves changes in both the sensory part of the cortex and the motor part of the cortex. These changes become permanent, particularly when loss of movement, stiffness is a feature of the condition which is certainly the case in this man.”
(emphasis added)
25 It will be noted that in his earlier report he states that the plaintiff has a total incapacity for work and that in his later report he does not change this view.
26 Dr Robyn Horsley, occupational physician, saw the plaintiff at the request of his solicitors on 11 February 2010. In a report of that date, she states:
“In terms of work, he needs to move into a role that is primarily sedentary because of his poor standing tolerances and walking tolerances limited by the disability in his left leg. He states that he has a dynamic standing tolerance of up to three hours but this puts considerable pressure through the right leg. He should change posture every 20 to 30 minutes. He needs to work in an environment where there is easy access to toilet facilities and eating facilities. Repetitive stair climbing would be an issue. His sitting tolerance he states varies up to 20 to 25 minutes. His driving tolerance however is two hours.
Mr. McDonald ceased work at the age of 23 years. He is now 30 years old. He has been out of the work force for seven years. He clearly requires an upgrade of his skills, particularly in the computer arena to assist him to move into a more sedentary role, probably on a part time basis. On presentation today, I do not believe that he has capacity for full time work, however with his age, and the nature of his presentation, I believe that he would benefit from returning to the work force on a part time basis in a more sedentary role that accommodates his disability with minimal manual handling, minimal static standing and limited walking and minimal stair climbing. To pursue such an alternate position, he will need upgrading of skills. His prognosis for return to work is guarded, despite his youthful age.
. . .
From the physical perspective alone, I believe that it would be in his best interests to return to the work force on a part time basis, possibly working 15 to 20 hours per week in suitable duties, within the restrictions as outlined above. However, with his current educational background, I believe that this will be difficult. Further upgrading of his skills is required to allow him to move into a more sedentary role. I believe that his overall prognosis for a return to work with now seven years out of the work force, despite his youthful age is guarded.”
(emphasis added)
27 Dr Taverner first saw the plaintiff on 7 February 2005. He has seen him on many occasions since.
28 In a report of 31 July 2008, he states:
“I have encouraged him to continue with physiotherapy and rehabilitation
now that he has sufficient pain relief.”
29 In a report of 9 August 2008, he states:
“Mr McDonald is unfit for previous work, however I have asked him to obtain assistance from a rehabilitation provider to help him look for suitable work.
Mr McDonald has indicated that he was considering working as a taxi or forklift driver. Mr McDonald would be able to drive vehicles with automatic transmission provided his pain was at low levels and he was not using recreational drugs.”
30 The plaintiff stated in evidence that although he was keen to drive taxis, this was not really an option since he would be unable to assist passengers in taking luggage in and out of the taxi. Likewise, work as a forklift driver was not a possibility since as well as the driving there would be a need at times to move pallets which had become dislodged.
31 In a report of 18 September 2008, Dr Taverner states:
“He needs some psychology sessions to help him deal with further warpy thoughts, with negative thinking predominating rather than a possibility thinking. He also has body image issues that are holding him back in that he wants to be free of his walking stick before he returned to work. However this may not be possible or necessary if he could find alternative work.
He needs a vocational assessment to help him explore alternatives and find the most suitable work. Work Cover have not yet organised a rehabilitation provider.”
32 In a report of 2 April 2009, he states:
“I support the referral for vocational assistance as I believe he has a capacity to work with restricted use of his left leg that makes manual trucks/cars impractical and limited power standing and walking and sitting tolerances that require frequent posture change and accommodate his education to year 9.”
33 In a report of 23 July 2009, he states:
“I think we have come to a decision time to focus on return to work rehabilitation, with this in mind, I. have recommended that he be assessed and assisted through Victoria Rehabilitation with a return to work programme, with a copy of this letter being sent to Clayton Thomas to serve as a referral.”
34 In a report of 18 September 2009, he states:
“I believe Matthew is ready for a job seeking program and I believe he will benefit and need psychological assistance during this time to help him overcome his perceived stigma of walking with a limp and needing a walking stick as he gains confidence to re-enter the workforce.
The work options outlined are reasonable, however they will need to take into account that he still has pain in his left leg, that he will need to avoid repetitive activity and need frequent postural change to be able to sit, stand and walk with task rotation.
In addition to psychological assistance during the return to work programme, he may also require occupational therapy/ergonomic worksite assessment.
I am happy to do my request for Mathew to attend a pain management program at Victoria Rehabilitation provided sufficient resources are made available to help him job seeking and to support return to work if required.”
35 In his latest report of 2 April 2010, he states that the plaintiff is unfit for his pre- injury duties. He continues:
“He has pain and restricted function that limits his ability to walk and stand for prolonged periods of time. … Mathew has experienced a persistent pain and functional restriction over the last six years and in my opinion is likely to experience a degree of pain and physical restriction into the foreseeable future. The amount of disability and handicap will depend on his ability to manage his pain and in previous coping skills to reduce the psychological impact of his perceived disability and need to use a walking stick.”
36 In a report of 16 October 2009 to Dr Taverner, Dr Thomas states:
“I agree, that it is now appropriate to crank up, not only an exercise
program, but vocational rehabilitation.”
37 The reports dated 31 July 2008, 18 September 2008 and 23 July 2009 were addressed to Dr Maragoudakis. Despite their content, Dr Maragoudakis has maintained his view that the plaintiff is totally incapacitated for work. I note also that the optimism of Dr Thomas’ letter of 16 October 2009 does not carry through to his report of 19 April 2010.
38 Dr Michael Baynes, occupational physician, saw the plaintiff for the defendants on 20 January 2009. In a report of that date, he states:
“Mr McDonald is not fit for pre-injury duties. I believe it is highly unlikely that he will be fit for these duties in the future. I do not believe that Mr McDonald is unfit for all work and I note his history of attempting to find work and applying for work in a warehouse type situation several years ago but [he] had been knocked back. I note that Mr McDonald would prefer to work in a factory warehouse situation rather than working outdoors. Due to Mr McDonald’s dependence on a walking stick he would not be able to work on a shop floor or factory floor due to safety concerns. Mr McDonald would have some capacity for working in an
office type environment however he has limited transferable skills in this area. A return to work would be potentially possible and beneficial at least on a part time basis of about 3 hours, 3 days a week as an initial progress. An up to date report would be useful. I note however the medical panel decision from August 2007 which believed that Mr McDonald’s unlikely to have a work capacity in the future. I note however that this was before Mr McDonald had his stimulator inserted with reported benefit since that time.”
(emphasis added)
39 To complete the medical picture, Dr Paul Kornan, psychiatrist, saw the plaintiff for the defendants on 28 November 2007 and 10 March 2009. He has expressed the view that, from a psychiatric viewpoint alone, the plaintiff does not have an incapacity for work.
The Evidence of Margaret Leitch
40 Ms Margaret Leitch, a bachelor of applied science in occupational therapy and the holder of a graduate diploma in rehabilitation studies, has provided a detailed vocational assessment of the plaintiff. She interviewed the plaintiff on 29 March 2010. She states:
“Mr McDonald’s alternative vocational options were explored and it was found that he has very few transferrable skills for a new occupation with low functional demands. He has a low level of formal education, limited literacy, no vocationally useful administrative skills and only very basic computer proficiency.
…
Occupational rehabilitation and/or retraining in the future is unlikely to lead to a suitable commercially viable position of employment in the open labour market for Mr McDonald.
With regard for Mr McDonald’s physical injury only, I conclude no commercially viable occupation in the open labour market for which he is likely to qualify meets the definition of ‘suitable employment’ and this situation will continue for the foreseeable future.
. . .
Employment conditions such as extra rest breaks, self paced work with no emphasis on meeting production targets and the option of frequent postural change irrespective of work requirements are not usually available when securing a commercially viable position of employment in the open labour market.”
Discussion and Conclusions
41 There is, in my view, ample medical evidence, supported as it is by the evidence of Margaret Leitch, to enable me to conclude that at present the plaintiff has no working capacity and that this is permanent. As appears, Dr Taverner is the most optimistic. Other medical reporters are far more pessimistic.
42 As mentioned, Mr Middleton focussed upon the provisions of s.134AB(38)(g) and s.134AB(19)(b) of the Act. In my view, however, the plaintiff has satisfied the onus cast upon him by these two provisions of proving an inability to be rehabilitated or re-trained. The plaintiff is presently undergoing a series of rehabilitation sessions. I cannot for one moment imagine that these series of physiotherapy and relaxation exercises will suddenly make the plaintiff employable given the strong medical evidence to the contrary and the evidence of Margaret Leitch.
43 Mr Middleton submitted that Drs. Taverner and Thomas would not have encouraged and arranged for the plaintiff to attend the Victorian Rehabilitation Centre if they were not of the view that attendance there might lead to the plaintiff being capable of some employment. I note, however, that Dr Clayton Thomas is situated at the Victorian Rehabilitation Centre and that despite the optimistic tone of his report of 16 October 2009, such an attitude is not found in his report of 19 April 2010. I agree with the submission of Mr Harrison in that it is mere speculation to consider what the plaintiff might be able to do at the conclusion of his course at the Victorian Rehabilitation Centre in the absence of positive evidence upon this.
44 The plaintiff, in my view, has clearly satisfied s.134AB(38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (c), so far as loss of earning capacity consequences are concerned.
45 I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to loss of earning capacity.
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