Memery v Fishers Stores Consolidated
[2017] VCC 272
•15 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-03514
| DONA MEMERY |
| v |
| FISHERS STORES CONSOLIDATED PTY LTD |
---
JUDGE: | SACCARDO | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 14 March 2017 | |
DATE OF JUDGMENT: | 15 March 2017 | |
CASE MAY BE CITED AS: | Memery v Fishers Stores Consolidated | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 272 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – organic injury to lumbar spine; traumatic injury to discs of lower lumbar spine.
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Tobin SC with Mr G Clarke of Counsel | Ryan Legal |
| For the Defendant | Mr R Middleton QC with Mr M Clarke of Counsel | Hall & Wilcox |
HIS HONOUR:
1 In this application applicant seeks leave to commence a common law claim seeking both pain and suffering and economic loss damages for injuries suffered by her in the course of her employment with the defendant.
2 In the application Ms Memery relies upon the consequences to her of an organic injury to her lumbar spine in the form of a traumatic injury to the discs of the lower lumbar spine and in particular the L5 S1 disc.
3 In the application the applicant relies upon three affidavits sworn by her together with an affidavit sworn by Sheree Marsden and the applicant’s partner Paul Memery.
4 In addition the applicant gave the vote she evidence which largely involved in cross examination and re-examination. Further the parties rely upon the medical and like records and reports tended by them.
5 Both the affidavit evidence and the viva voce evidence are a matter of record. No purpose is served by restating the content of that material in the course of my reasons and I do not propose to do so otherwise than is necessary to do so to give context to my findings in this instance, which of course are based on that evidence.
6 Is appropriate however that I record that the applicant in my opinion presented as a truthful and reliable witness and that no aspect of the thorough cross-examination of the applicant caused me to question either her reliability or truthfulness.
7 A concession is made by the defendant, quite appropriately in my opinion, that the applicant presents with an impairment of function of the spine which meets the definition of serious pursuant to the provisions of the accident compensation act in so far as that impairment gives rise to symptoms which impact upon the applicant’s pain and suffering and loss of enjoyment of life.
8 In these circumstances I am called upon to determine whether the applicant has established on the balance of probabilities that the impairment of function with which she now presents in her lumbar spine gives rise to a loss of earning capacity which satisfies the definition of serious pursuant to the provisions of the Act.
9 In considering that issue I do so in the context of the concession to which I have referred above which involves by reason of the definition of serious injury the acceptance by the defendant:
(i) Firstly, that the applicant suffers from a condition the organic symptoms arising from which such as to meet the high threshold involved in the description of an impairment of function of the lumbar spine which generates symptoms and impairment of daily activity sufficient to be described as being more than significant or marked and as being more considerable.
(ii) That the applicant’s condition is stabilised and is permanent in the sense that there is unlikely to be any improvement in that condition or reduction in the impairment of function generated by that condition.
10 Much of the evidence relied upon by the applicant is not in issue.
11 It is was not challenged that the applicant returned to part-time employment after the two children of her partner and her three children born of their relationship were old enough to allow her to return to do so.
12 The evidence of her partner that the family has experienced financial pressure by reason of the applicant having to give up her employment is not in issue. Neither, is it in issue as attested to by Ms Marsden that the applicant has expressed to Ms Marsden feelings of both inadequacy and that she is a burden on her family by reason of the financial stress associated with her inability to work and her inability now to undertake the tasks around the house which had been a part of her role as a mother and partner.
13 Given the fact that this evidence is unchallenged, I am satisfied that I should accept it and approach my assessment of this application on the basis that the applicant had demonstrated at the time of her injury:
(i) by reason of her return to the workforce after raising her children;
(ii) her return to employment undertaking restricted duties after sustaining the injury the subject of this application:
the importance to her of generating an income for the benefit of her family.
14 In the context of that history I am satisfied that the applicant has established on the balance of probabilities that she would currently be working in some form of employment if she believed she had the capacity to do so.
15 Further as the applicant gave her evidence it was obvious that she constantly moved from side to side in a manner consistent with the description of Mr Gardiner in his report at PCB 99 in which he commented:
“Ms M exhibited a rolling gait and walked with a continual grimace suggesting significant discomfort. She stood during most of the interview rocking from one leg to the other. Again Ms M had a normal posture but had significant muscle spasm in… She indicated the pain to be over the lumbosacral region with the majority of radiation now occurring into the left buttocks and the left lower limb.
16 Further the fact that the applicant grimaced as she altered her posture from standing to sitting as she gave evidence was a subtle but no less obvious [something] of her symptoms to careful observation.
17 It is nowhere suggested in any of the medical evidence nor was it my impression that the applicant in any way feigned her symptoms or sought deliberately to exaggerate them and I am satisfied that the applicant’s demeanour in the witness box confirmed her discomfort and reduced tolerance for standing and sitting.
18 That the applicant suffered a progression of her symptoms in late 2016 is not an issue in the case.
19 Although the date upon which that progression manifested itself is not clear from the evidence, the applicant’s viva voce evidence was that she had developed significant symptoms in her left leg late in 2016.
20 Mr Gardiner, a consulting orthopaedic surgeon, examined the applicant in January 2017. In his report dated 16 January 2017 Mr Gardiner records a history from the applicant that she had experienced:
“a sudden exacerbation of low back pain with radiation into the left buttocks… and down to the proximal half of the left calf some six weeks ago”
21 Mr Dorman a consulting neurosurgeon examined the applicant on 20 January 2017 at which time he obtained a history from the applicant that she suffered from constant pain in the left buttock radiating through the posterior aspect of the thigh to the level of the knee which symptoms when they were “really bad”’ extended to a left foot and could be associated with pins and needles in the left foot.
22 In the course of obtaining that history the applicant told Mr Dorman that until the latter part of 2016 her right leg was more painful until she had performed some ’spot mopping’ in the latter part of 2016 and that since that time a left leg has been painful.
23 I am satisfied on the basis of the evidence to which I referred that the onset of the applicants left leg symptoms occurred sometime in November or December 2016.
24 I am equally satisfied that the only persuasive evidence consulting as to the cause and consequence of those symptoms is found in the reports of Mr Gardiner and Mr Dorman, the former having examined the applicant on 16 January 2017 the latter on 3 February 2017.
25 It is not an issue that the applicant presented with no symptoms of back pain or tendency towards spinal injury prior to undertaking the heavy work which she undertook in the course of her employment with the defendant.
26 Neither is in issue that since the applicant sustained the work-related injury the subject of this application she has complained of ongoing symptoms of back pain.
27 Both Mr Gardiner and Mr Dorman treated the exacerbation of the applicant’s symptoms as a progression of her symptoms and I am satisfied that this exacerbation should be regarded as such, and not as arising by reason of some discrete incident in respect of which the defendants work process was not at significant contributing factor.
28 It follows that any medical opinion as to the applicant’s current or future capacity for work expressed in the absence of the history of that exacerbation and its consequences upon the applicant’s capacity for work related activity, carries little persuasive force.
29 The applicant’s most recent MRI scan of 23 January 2017 is reported as demonstrating an impingement of the transiting left L5 nerve root in its lateral recess together with an impingement of the transiting right L5 nerve root in its lateral recess.
30 That MRI scan in turn, has in turn been described by Mr Gardner as involving a structural exacerbation of the applicant’s condition in respect of which he commented quite prophetically in his report dated 16 January 2017, before having had access to the MRI report that the applicants future involved the likely worsening of her low back pain, the radiating pain down the left lower limb and corresponding loss of ankle jerk tending to indicate that she was now suffering from a possible disruption of the L5 S1 disc impinging upon the S1 nerve root
31 In voicing his opinion at that time Mr Gardiner commented as to the applicant’s then presentation and opined:
“I consider now that the prognosis for satisfactory recovery in Ms Memery’s cases poor. She has widespread lumbar spondylosis which is difficult to predict and to treat particularly in a woman of 41 years of age. In other words the prognosis since my last report is worse.
32 Having had access to the January 2017 MRI Mr Gardner commented that the applicants lumbosacral spine was undergoing continued pathological change and that her injury was not stable and that she required review by a spinal surgeon.
33 The 2017 MRI has been described by Mr Peter Dorman in his report dated 3 February 2017 as giving rise to an incapacity which:
· has prohibited the applicant from performing her pre-injury duties as a supermarket worker since August 2014;
· is such that it renders her currently unfit to resume work in any capacity;
· gives rise to an impairment which it is permanent and stable; and
· involves a prognosis which is poor in that it is likely that the applicant will continue to experience symptoms similar to those set out in the body of his report for the foreseeable future which symptoms will limit the applicant’s functional capacity in the ways described by that report.
34 It is appropriate given what may be regarded as some ambiguity in the description by Mr Dorman in his report that I indicate that I am satisfied having considered the totality of the content his report as being an expression of an opinion that the applicant’s presentation when considered in the context of her most recent MRI scan was such that Mr Dorman was satisfied that the applicant was and would remain unfit for any work both at the time at which he authored his report and in the future.
35 Whilst some confusion arises as to the comment made by Mr Dorman as to the applicant’s presentation namely:
“[it is] difficult to predict whether she may be able to work in some other capacity in the future as this will depend upon the outcome of the forthcoming MRI scan and may be influenced by future treatment decisions”
I am satisfied that it is probable that this statement was the preliminary opinion expressed by Mr Dorman at the time of his clinical assessment of the applicant on 20 January 2017 at which time the performance of the MRI had been mooted but had not yet been undertaken.
36 I make that finding given the inconsistency between the statement by Mr Dorman to which I have referred above and the content of the balance of his report in which he refers to the findings of the MRI and comments that the applicant’s condition is both stable and permanent and will continue to incapacitated for all forms of employment for the foreseeable future.
37 Whilst the defendant relies upon the medical evidence of Mr Clive Jones, given that Mr Jones:
· has opined in the matter only in September 2014 well before the current MRI scan; and
· has not had the opportunity to review the applicant since that time
I do not find his report persuasive as to the applicant’s current or stabilised capacity for employment when considered in the context of the up-to-date reports of Mr Dorman and Mr Gardner.
38 Largely the opinion expressed by Mr Dooley lacks persuasiveness in my opinion for similar reasons given the timing of his assessment of the applicant namely before:
(i) she developed what she has described as the current debilitating condition associated with the symptoms in her left leg; and also
(ii) the MRI scan of 23 January 2014 provided radiological evidence confirming and supporting the applicants history of left leg symptoms and presentation with significant muscle spasm and symptoms associated with nerve root entrapment;
39 In reality I am of the opinion that Mr Dooley in expressing his opinion in the context to which I have referred above has, by reason of his being denied relevant information, become a victim of the circumstance about which he warned, namely the expression of an opinion in the absence of an ability to correlate the relationship between findings of relevance and radiological evidence to arrive at a diagnosis.
40 The defendant points to the condition which the applicant presents in the toes of her feet more on the left side than the right which has been diagnosed as Buergers syndrome (which I am satisfied on the basis of the applicant’s own admissions was a significant factor in her ceasing employment with the defendant) as clouding the issue as to the applicants current fitness for work. I accept the applicant’s evidence that this condition is largely under control however and does not operate as a factor which currently, or for that matter has for some time, restricted her ability to return to employment.
41 Whilst the applicant’s presentation with hip pain and fibromyalgia are clearly each conditions which might at various times impact upon the applicant’s ability for continued employment. Given that the applicant’s employment involved working only 27 hours per week, I accept the applicant’s evidence that it is probable that she would have been able to tolerate these conditions and continue to manage her employment.
42 The same reason I am satisfied that the demands placed upon the applicant’s life by the serious medical conditions from which her son suffers falls into the same category.
43 I am of the opinion that the consistency between:
i. the applicant’s evidence:
· that she has never been free of back pain the severity of which was such as to incapacitate her from returning to unrestricted forms of employment;
· that she currently presents with an increase in symptoms such that she is totally incapacitated for any form of work; and
ii. the radiological evidence the subject of the MRI scan of the 23 January 2017;
iii. the expert evidence of Mr Dorman, a neurosurgeon and Mr Gardner, an orthopaedic surgeon who, given their areas of practice, are well-placed to comment upon the applicant’s stabilised work capacity;
provide a clear and cogent path for me to make a finding about which I am as to the effect which the applicants the work-related impairment of function of the lumbar spine has upon her current and future capacity for employment.
44 Give given the expertise are both Mr Dorman and Mr Gardner I am satisfied that I should prefer their evidence on this issue to that voiced by Dr Islam, the applicant’s general practitioner, who commented that the applicant may be able to work in occupations, other than her usual occupation, which did not involve heavy lifting, repeated bending and also involved the rather nebulous concept of a friendly environment.
Analysis as to the applicant’s capacity for employment
45 For the reasons expressed earlier I am of the opinion that any analysis as to the applicants current capacity for employment undertaken in the course of a vocational assessment report based upon medical evidence which predated the onset of the applicant’s symptoms in her left leg and the incapacity generated by those symptoms carries little probative weight.
46 Clearly the vocational assessment undertaken by Recouvre which was based primarily on the medical report of Mr Dooley (see the comment at DCB 44) clearly falls into this category.
47 The vocational assessment undertaken in February 2017, by Mr Hartley however, was based upon the report of Mr Gardner dated 16 January 2017 and Mr Dorman dated 3 February 2017 and accordingly that carries more weight.
48 There can be no issue in my opinion that the author of that report is well-placed in those circumstances to assess current capacity of the applicant to undertake employment related activity.
49 There can be no issue that a vocational assessment which analyses the presence of a capacity to undertake the duties involved a particular field of employment must be based upon the medical evidence which establishes the tolerance of the applicant for such activity.
50 Whilst it was put on behalf of the defendant that the analysis by Mr Hartley failed to adopt this approach I do not accept that position. At PCB 162 Mr Hartley made clear the basis upon which he approached his analysis as to the suitability of various fields of employment which have been identified for the applicant was based upon the applicant’s own history to him as to her capacity for activity and the opinions are both Mr Gardner and Mr Dorman. Given my satisfaction that the applicant’s history to Mr Hartley was accurate the position mooted by the defendant has no substance.
51 In my opinion, when account is taken of the opinions of Mr Gardiner and Mr Dorman and Mr Hartley as to the applicant’s current stabilised tolerance for activity are applied to the consideration of the various employment options are identified for the applicant namely .
· the activities of an in Enquiry Clerk customer service operator which are described as involving stretching twisting climbing and lifting on an occasional or frequent basis together with bending squatting or crouching;
· the occupation of a retail sales assistant that requires the applicant to perform generally sedentary activities;
· the occupations of General Clerical Worker, Rental Sales work or Receptionist all of which of which are described as involving constant standing or sitting;
· the occupation of and that the activity of a Retail Sales Assistant which involves the applicant standing walking undertaking presentations and demonstrations;
it is clear that the performance of each of these activities would be beyond the applicant’s physical capacity having regard to both the periods of time for which those activities would be required to be undertaken on a daily basis.
52 It is put on behalf of the defendant that the most recent medical report of Mr Gardiner recognises a capacity in the applicant to undertake the tasks involved in clerical duties.
53 In my opinion when Mr Gardiner’s comment upon this issue is considered in context, namely:
“your client has education in the retail industry. I do not believe that she is qualified for any other specific occupation. She is theoretically however fit for clerical duties, but I cannot see how this could be particularly productive for her employer in that she is unable to sit for more than a few minutes and would have great difficulty driving to work, because of the significant ongoing back pain that she is experiencing”
it is clear that in, expressing his opinion in those terms, Mr Gardner was doing no more than recognising the presence of a theoretical capacity which was in excluded by reason of the applicant’s organic disability.
54 For that reason I interpret Mr Gardner’s assessment of the applicants physical capacity for work to be no different to that of Mr Dorman or Mr Hartley namely that she has no such capacity for suitable employment.
55 In the circumstances am satisfied that the applicant has established that her work-related impairment of function of the lumbar spine precludes her from engaging in any of the proposed fields of suitable employment which have been identified for her and that it is unlikely that these fields could be increased by any form of retraining given the extent of her physical incapacity.
56 It follows from my analysis above the applicant is entitled to the leave which she seeks in this instance.
57 As is my usual practice I will allow the parties to draft the leave order and hear them as to the issue of costs.
---
0
0
0