Millward v Bupa Care Services Pty Ltd
[2013] VCC 855
•6 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00354
| MARGARET JOY MILLWARD | Plaintiff |
| v | |
| BUPA CARE SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 June 2013 | |
DATE OF JUDGMENT: | 6 June 2013 | |
CASE MAY BE CITED AS: | Millward v Bupa Care Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 855 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Giankos v SPC Ardmona Operations Limited [2011] VSCA 121
Judgment: Leave granted for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G K Coldwell | Hounslow & Associates |
| For the Defendant | Ms M Britbart | Thomsons Lawyers |
HIS HONOUR:
1 In this matter, the plaintiff in the action seeks leave to commence common law proceedings against the defendant, her former employer, Bupa Care Services Pty Ltd, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), in respect of both pain and suffering and loss of earning capacity damages. The application refers to an injury to the plaintiff’s lumbar spine which she sustained in the course of her employment, in particular on 24 February 2010.
2 At the hearing, it was conceded by the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(38)(c) of the Act with respect to pain and suffering consequences. Section 134AB(37)(a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
3 As a consequence of this concession, the defendant conceded that the impairment to the plaintiff's lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and more than “significant” or “marked”.
4 Further, the concession includes that the consequences of the injury are serious to the plaintiff and the consequences will relate to the plaintiff's pain and suffering such that leave should be granted under that particular head.[1]
[1]See s134AB(38)(c) of the Act and Humphries & Anor v Poljak [1992] 2 VR 129 at 140
5 In her opening, defence counsel indicated that the basic issue was whether the plaintiff was able to prove that after the date of hearing the plaintiff would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more pursuant to s134AB(e)(f)(g) of the Act.
6 In light of those concessions, the facts of the case as relied upon by the plaintiff can be summarised as follows.
7 The plaintiff is a fifty-seven-year-old year old woman currently living in Bendigo with her second husband. She has three adult children. She was born in 1955 and grew up in Springvale.
8 She attained Year 10 at high school and since that time has done physical work as both an aged care attendant or personal care attendant, and she has also done some other work, including as a laboratory technician. Her qualifications include that she has a Certificate III in Aged Care, which she obtained in or about 2001. She commenced with the defendant in Bendigo on 21 January 2003.
9 She describes the facility in Bendigo housing 145 patients, including low care, high care and dementia patients. She worked permanent part time, meaning 38.5 hours a fortnight, although in evidence she conceded that she may be working 44 hours per fortnight. Her gross income for the years leading up to her cessation of work peaked at a figure of $32,330 if allowance was made for an 11 per cent increase from the 2008 financial year, which was agreed to by both parties. Accordingly, the maximum figure that can be relied on for “without injury earnings” by the plaintiff in this case, pursuant to s134AB(38)(f)(ii), is $32,330.
10 Counsel for the defendant urged that this was a maximum figure and that the figure of 2009, which was slightly lower, should be the decision figure. However, the plaintiff said in evidence, without contest, that she would have liked to have worked more hours than the 38 hours and that her hours in 2009 were reduced at the employer’s desire in that financial year. In all the circumstances, I consider it reasonable that she retained the capacity she had in 2008, in 2009, and therefore the 2008 figure is an appropriate one.
11 In relation to the circumstances of injury, the first episode of injury was on 1 November 2009. The plaintiff slipped on water near the dishwasher that she was working next to. Thereafter, she took a couple of days off work. She did not require any medical treatment and went back to her normal duties with intermittent episodes of back pain, but was able to keep going with her normal duties until the second incident on 24 January 2010.
12 On this occasion she was helping to get a resident out of bed at 7.00am in the morning. The onset of pain occurred when she was helping the resident do up his or her shoelaces. She describes in her affidavit the occurrence of massive pain. The plaintiff worked the next day, but needed to see her general practitioner, Dr Rahman. A claim for compensation was submitted on that date, which was accepted by the defendant.
13 The plaintiff was off work for several months and did not return to work until June of 2010. In the meantime, and later, various investigations were undertaken. One such investigation was an MRI scan taken on 7 October 2010.[2] That MRI relevantly discloses, inter alia:
“L4-5 mild canal narrowing secondary to a posterior disc protrusion and facet joint osteoarthritis. Mild bony narrowing of the foramina, but no evidence of nerve root impingement. L5-S1: posterior disc protrusion not causing neural impingement. Advanced facet joint osteoarthritis narrowing the foramina but not resulting in significant L5 impingement.”
[2]Exhibit C
14 Counsel for the plaintiff contended that the injury in question was an aggravation of degenerative condition as disclosed in Exhibit C. As already stated the defence counsel has conceded a serious injury in this regard for the purposes of pain and suffering damages.
15 The plaintiff had two return to work attempts with the defendant. The first attempt was between June and September 2010. In that period, the plaintiff commenced working eight hours a day and gradually built up to twenty hours a day in September 2010 but could not cope thereafter.
16 In this period, she had been making beds and found that the bending associated therewith aggravated her back pain. In this time, she was also engaged in feeding patients which, she said in cross-examination, she was able to perform without undue pain.
17 Thereafter, she again made an attempt to go back to work in September 2011. This time, instead of making beds, she was required to clean cupboards of the patients or residents of the facility and also process files. These duties included bending and lifting, particularly whilst cleaning cupboards.
18 The plaintiff commenced doing nine hours per week but was unable to progress beyond this period, which consisted of three hours per day, three days per week, with a fifteen-minute break every hour. The plaintiff had to give up work in March 2001 on account of the back pain.
19 She was certified as totally incapacitated at that time and received weekly payments of compensation apparently appropriate for the rate of total incapacity for a statutory period of 130 weeks thereafter.
20 Since ceasing work, the plaintiff was utilising the services of a rehabilitation agency known as IPAR and she was encouraged to look for and apply for various positions thought to be within her capabilities.
21 The plaintiff, for her own part, reluctantly made such applications because she felt she was under pressure to remain on weekly payments of compensation but she did not really believe that she could perform the tasks.
22 The plaintiff relied on various medical practitioners for the proposition that the plaintiff was totally incapacitated for work. Counsel for the plaintiff, in his opening, recites:
“In a nutshell, I’ll be submitting that this 57 year old who has had a background in unskilled physical work is totally and permanently incapacitated when one looks at the necessary elements under 'suitable employment' under the Act in relation to incapacity, pre-injury employment, age, education skills, work experience and in particular the medical opinions.”[3]
[3]Transcript (“T”) 9, L8-14
23 Counsel for the defendant in her opening conceded that the argument was whether the plaintiff had satisfied the 40 per cent loss of earning threshold. The defendant’s position is that the plaintiff is able to engage in suitable employment that is consistent with the position adopted with the termination of weekly payments in 2012.
24 The contest between the parties narrowed down to a fairly succinct issue which is whether the plaintiff had discharged the onus of proof with respect to a loss of earning capacity of 40 per cent or more as is required under s134AB(38)(e)(ii) of the Act.
25 As I have already found that the figure of $32,330 is an appropriate figure for the “without injury earnings”, the threshold figure becomes $19,398 or $373 per week.
26
On the second day of hearing, the defendant tendered into evidence an affidavit of Bronwyn Lois Griffiths-Micheel who swore that the
expected wage for a medical receptionist as at today’s date is $826 per week for an average weekly full-time income.
27 Medical practitioners retained on behalf of the defendant conceded that the plaintiff had an incapacity for work but that she had a retained capacity for light work. That retained capacity for light work did not exceed the number of hours that the plaintiff had been previously working which, on the one view of the evidence, totalled 44 hours per fortnight, or 22 hours per week.
28 Counsel for the defendant submitted that the $826 was the equivalent of $21.73 per hour so it would appear to me that if the plaintiff was able to work for more than 17 hours in suitable employment, she would not be able to discharge the onus of proof.
29 Conversely, if she has either a total incapacity or a limited capacity to, say, 15 hours per week, she would succeed in her application.
30 In her customary, fair manner, counsel for the defendant did not attack the credit of the plaintiff but submitted that her subjective view that she was unfit for any work at all, was not made out on the evidence, and that in accordance with the number of jobs that were identified in the defendant’s documents, she would be fit for a wide range of work, and would be capable of working up to 22 hours per week, which would mean that she would necessarily fail.
31 As to the plaintiff’s credit, I found her to be an honest and straightforward witness and I did not understand counsel for the defendant to demur from that proposition. In cross-examination, the plaintiff said in a straightforward way that she may be able to work for four hours of a day but that she would need appropriate rest if she was to attempt same.
32 In re-examination, the plaintiff was asked of what sort of rest she considered she would need to avail herself. The following evidence took place:
Q:“When you’re describing needing a rest, what are you actually talking about? What’s happening that causes you to want to
rest?---
A:I physically have to go and lie down on my bed to rest my back.
Q:In relation to those situations where your back pain requires you to rest, is it simply something you can wait ‘til the end of four hours and go and have a rest, or - - -?---
A:No.
Q:Well, explain the times you need a rest. Are they predictable times during a normal day?---
A:After lunch roughly is when I feel I need to go and lie down for a while, midafternoon.
Q:If you were trying to work for a four hour period and you had back pain, is it something that you could tough it out, so to speak, ‘til the end of four hours or is it something you’d need to rest immediately?---
A:No, I’d need to rest immediately.
Q:And what do you do when you rest?---
A:I just lay on my bed with heat packs and the TENS machine.
Q:Is there a normal time period that you’d take such a rest break as far as the duration or the length of the break?---
A:Usually for an hour or two.
Q:You were asked about these jobs, potential jobs as medical receptionist and ward clerk. It was suggested to you by counsel that you agree you could do those type of jobs. Is that your evidence, that you do agree you could do those jobs?---
A:I felt pressured at looking at different jobs that I didn’t have all the qualifications or the confidence to really do them. But I was - I felt pressured.”[4]
[4]T44
33 In my view, having found that the plaintiff is an honest and straightforward witness, I find that she is appropriately motivated to try to get back into the workforce, but expresses genuine limitations as to her capacities generally. Even if she could work four hours a day five days a week, being twenty hours per week, I do not believe that she could do it every day; nor do I believe, even if she could start out doing it every day, that she would be able to maintain that situation in the real world.
34 Theoretically, she could work as a medical receptionist or as a clerk, such as a ward clerk, with appropriate retraining and rehabilitation. But I do not consider that the thrust of the medical evidence is to the effect that the restrictions and the pain that she complains of is not truly in existence.
35 That being the case, I accept the submission of counsel for the defendant along the lines set out in Giankos vSPC Ardmona Operations Limited[5] that it is not really for the doctors to comment on the vocational abilities of patients, but merely on the medical restrictions within their expertise.
[5][2011] VSCA 121
36 Having said that, the medical restrictions found by the various doctors, in my view, are in keeping with the plaintiff’s description of her symptoms. And although theoretically if she could work twenty two hours per week on the maximum wage as already advanced in evidence by the defendant, I do not believe she would be able to retain that level on a consistent basis but believe that any consistent work that she could perform would be less than fifteen hours per week, and I find it unnecessary to set upon an exact figure in that regard.
37 In my view, for the reasons expressed, the plaintiff has discharged her onus of proof in satisfying me that she would not be able to work at the required statutory level.
38 Accordingly, leave will be granted to the plaintiff to issue proceedings for pain and suffering damages and for loss of economic capacity and I will hear the parties with respect to costs.
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