Misins v Woolworths Limited
[2010] VCC 574
•2 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-03130
| SHARON MISINS | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 May 2010 |
| DATE OF JUDGMENT: | 2 June 2010 |
| CASE MAY BE CITED AS: | Misins v Woolworths Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0574 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application under s.134AB Accident Compensation Act 1985 – serious injury claimed for a permanent serious impairment to the function of the lumbar spine in respect of loss of earning capacity only – leave granted to the plaintiff to bring proceedings for loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC with | Maurice Blackburn Pty Ltd |
| Mr G Chancellor | ||
| For the Defendant | MR A Middleton | Gadens Lawyers |
| HER HONOUR: |
1 The plaintiff seeks leave to commence proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages arising out of her employment with the defendant when she sustained injuries to her back on 11 April 2002.
2 The plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act; her contention being that she has sustained a permanent serious impairment to the function of the lumbar spine.
3 The plaintiff seeks leave to issue proceedings to recover damages against the defendant with respect to pain and suffering and loss of earning capacity.
4 At the commencement of the proceeding, I was informed that the defendant conceded damages with respect to pain and suffering only.
The Issue
5 The defendant says that the application is contested on the basis of earning capacity only. That is, the plaintiff must satisfy the Court of the requirements of s.134AB(38)(e) and (f) – that the plaintiff has suffered permanently a 40 per cent loss of earning capacity when compared to the “without injury” earnings to what the plaintiff either now earns or is capable of earning in some other suitable employment. The defendant contends that the plaintiff can work longer hours, which means she cannot establish that she has suffered a 40 per cent loss of earning capacity. The defendant submitted that this was a borderline case and the plaintiff could work 23 hours per week and if she did, then she would exceed the statutory limit.
The Evidence
6 In bringing the application, the plaintiff relies on two affidavits, sworn 28 January 2007 and 1 May 2010. The plaintiff was cross-examined. She relied upon medical reports of treating and examining doctors.
7 The defendant relied principally upon medical reports.
8 The evidence can be summarised as follows:
The Plaintiff’s Evidence
9 In her first affidavit, the plaintiff deposes that:
•
She was born on 29 December 1969 and is now aged thirty-six. She is married with one son born on 11 November 2004. She left school after Year 10 and worked at Safeway and Kmart for approximately one year. Whilst continuing to work at Safeway, she then completed Years 11 and 12 at night school.
•
She then left Safeway and undertook a range of jobs, predominately cooking in cafes, restaurants and bars. In approximately 1995, she commenced working for Safeway at Hoppers Crossing, where she completed an apprenticeship as a baker and pastry cook. Whilst working at Safeway, she also did the books for her first husband’s trucking business. She ceased working at Safeway after she separated from her first husband in 1999, and recommenced her employment in 2000.
•
In 2000, she worked at Safeway Heidelberg undertaking a five day, 38 hour week. She was a pastry cook, second in charge. The job was physical, and involved lifting bags of flour, mixing bowls and trays to and from the oven. She found her job satisfying and enjoyable.
•
On 11 April 2002, she suffered a serious injury during her employment at Safeway Heidelberg. The floor was wet because of a leaking tap under the sink. Whilst carrying a large mixing bowl in the bakery, she slipped on the wet floor, lost her balance, but managed to twist and catch herself to prevent a complete fall. When she twisted, she felt something “pop” in her back. She felt some pain but was able to continue working for the following two hours in order to complete her shift.
•
On 15 April 2002, she went for a CT scan which showed a right paramedian central disc protrusion at the L5-S1 level. On 12 September 2002, she was sent for an MRI scan which showed a deflated disc, internally deranged, with a broad-based right paramedical protrusion at the L5-S1 level.
•
In November 2002, Mr Brazenor, a neurosurgeon, certified the plaintiff fit to return to work on a part-time basis with restricted duties, initially six hours per week (two hours per shift, three days per week). He also recommended she be fitted for a back brace. She was fitted for a metal and elastic brace. At this time, the plaintiff was having trouble walking up and down stairs and occasionally used a walking stick to assist with her balance.
•
She commenced at Templestowe Safeway because it did not have stairs. Her duties involved stock return and ticketing. She wore her metal brace while at work. In December 2002, her work hours were increased to 12 hours per week (four hours per shift, three days per week).
•
On 21 March 2003, she experienced a further aggravation of back pain whilst at work. She slipped on some fly spray which had been used on the toilet floor for ants. Her back was aggravated when she lurched to avoid a complete fall. She was off work for a few weeks. After the fall, she had a further MRI scan on 7 April 2003, which was unchanged from the scan in September 2002.
•
On 28 April 2003, she commenced seeing Dr Wong, a psychiatrist. She was told that she would not be able to go back to her old job as a baker. This made her feel worthless and suicidal. She was also stressed from her pain, and was guarding against further exacerbation.
•
In May 2003, Mr Brazenor certified her fit to work 20 hours per week. However, Mr Wong certified her for 12 hours per week, on the basis that she was psychologically too fragile.
•
In March 2004, she commenced an eight week chronic pain rehabilitation program as an out-patient at the Olympia Private Rehabilitation Hospital for two days per week. The program was designed to improve her ability to walk up and down stairs. She continued to work 18 hours per week at Templestowe Safeway.
•
By May 2004, she had improved with the pain program and increased to working 21 hours per week, spilt over five days.
•
In May 2004, it was confirmed that she was pregnant. She continued to work through her pregnancy. On 10 November 2004, she went into labour with her son. After his birth, she took one year of maternity leave.
•
On 21 November 2005, she returned to work at Safeway Heidelberg for 15 hours per week (five hours per shift, three nights per week). In the first couple of months of returning to work, she experienced a lot of pain, but this gradually improved. She continued to work 15 hours per week. Occasionally, she took on extra shifts, but is no longer allowed. She has asked for an increase in hours if they are available, as she would like to try to return to 21 hours per week, as it was prior to her maternity leave.
•
Mr Brazenor and other doctors advised that she was permanently unfit to go back to work in the bakery. Further, Safeway advised her that according to their medical advice, she was permanently unfit to return to work in the bakery. This made her unhappy, as she used to get a lot of satisfaction from working in the bakery.
•
Since the accident, she has worked as a checkout operator and on the floor. She found being a checkout operator difficult, in terms of both constant client contact and the physical demands in places on her back. She requires assistance with heavy items and a supervisor is usually close by.
•
She is paid a lower hourly rate as a checkout operator and ‘long life worker’. In the first six months of her return from maternity leave, she earned approximately $7,500 working as a checkout operator. By contrast, in the financial year ending June 2002, she earned $31,835 gross working in the bakery. Not being able to work in the bakery means that she suffers a substantial wage loss, as the hourly rate of a checkout operator is much less than a qualified pastry cook and baker.
•
She continues to suffer from lower back pain most of the time, with it being worse at the end of a shift. She took time off from work in late June, early July 2006 because of her pain. Her leg pain has improved, but prolonged standing can lead to numbness in her heels.
•
She continues to see Dr Wong for psychological treatment every two to three months. She sees Dr Tossoun, her general practitioner, on a regular basis for WorkCover certificates, which indicate that she is unfit for work which involves bending, lifting or twisting. She is also receiving regular physiotherapy and hydrotherapy.
•
She has been warned that her back is permanently vulnerable. She has already had a number of acute exacerbations, sometimes for no particular reason.
10 In her second affidavit, the plaintiff deposes that:
•
She continues to work at Safeway Heidelberg, generally working 15 hours per week (five hours per shift, three days per week) and is paid $17.86 per hour. Her shifts are from 5.00 pm to 10.00 pm. Two nights she works on the floor doing mainly stock work and one night she works on the registers. Her pain is worse after working on the registers, as it involves prolonged standing, lifting and twisting. She is allowed to take a break every two hours and a further short break if required.
•
She is certified to work up to 20 hours per week, but believes that she could work 21 hours per week, which was what she was working before she went on maternity leave. Occasionally, she has worked an extra shift and has managed. She has tried working a full nine-hour shift, but suffered increased leg and back pain as a result.
•
Whilst visiting her family in Queensland in August 2007, she experienced a flare up of her back pain and was sent for a CT scan at Bundaberg Hospital. She believes the scan confirmed the presence of the L5-S1 disc protrusion.
•
From approximately February to June 2009, she was absent from work as a result of three gynaecological-related surgeries. During this period, she was having regular back spasms, she experienced increased back, right leg and foot pain and she developed numbness in her right foot.
•
On 11 May 2009, she had a further CT scan. She believes the scan showed an L5-S1 disc protrusion with spurring and disc narrowing, and slight swelling of the L5 nerve root.
•
On 10 January 2010, she injured her left knee at home. As a result, she was off work from 26 January to 13 April 2010. During this period she had a tumour removed from her right leg.
•
She continues to suffer from low-back pain most of the time. Occasionally she has flare-ups, where the pain is so severe that she requires the use of a walking stick. She has had to leave work early because of increased pain.
•
She sometimes experiences pain in her right leg, which is worse with prolonged standing. When her symptoms are bad, she can experience pain and numbness in her right foot.
The Plaintiff’s Medical Evidence
11 The plaintiff relied upon a number of medical reports.
12 In August 2002, Mr Brazenor, a neurosurgeon, saw the plaintiff on referral from her general practitioner. He formed the impression that the plaintiff may have injured the L5-S1 disc annulus when she slipped in April 2002. He concluded that she would never again work in any job involving repeated bending at the waist, the repeated picking up of objects from ground level, or the lifting of weights in excess of 15 kilograms.
13 In a report to the defendant dated 25 January 2004, Mr Brazenor said:
“So far as I can tell, this lady is fit for full-time employment, but because of this injury she will never again do a job involving repeated bending at the waist, the repeated picking up of objects from ground level, or the lifting of weights (such lifting sanctioned only when it does not involve bending at the waist) in excess of 15 kilos. These restrictions are permanent and the result of her injury, and they apply in perpetuity irrespective of how well Ms Pace [the plaintiff] may fair symptomatically in the foreseeable future.”
14 In May 2004, Dr Terrence C Lim, a consultant in rehabilitation and pain medicine, saw the plaintiff on referral from her general practitioner. It was his prognosis that the plaintiff should be able to increase her hours worked in light duties. He was not sure whether this would be in full hours but that was the aim. He said the plaintiff should be able to work in at least light duties in reduced hours.
15 In April 2010, Dr Elsaafin, the plaintiff’s current general practitioner, said that the plaintiff was working between 15 to 20 hours per week as tolerated.
“There are work restrictions which include:
- light duties, no lifting of more than 5 kilograms, no bending or twisting
and rest breaks every two hours, as required.”
16 Dr Elsaafin said she doubted that the plaintiff would be able to return to her premorbid status and what she can do is to continue on her current capacity of work, with the above-mentioned work restrictions.
17 Dr Elsaafin said the plaintiff was waiting to have a rehabilitation program organised by Dr Lim.
18 In April 2009, Dr Amanda Sillcock, an occupational physician, said that by November 2004, the plaintiff was working 21 hours per week when she stopped work due to the birth of her son. Since that time the plaintiff has been working 15 hours per week. She had tried to work an 8-hour day in 2008 but this caused increased pain. She can manage 6 hours per day but needs a break and she felt she could probably increase to 5 hours per day, five days per week if she did it gradually.
19 It was Dr Sillcock’s view that the plaintiff’s partial incapacity for work was permanent. She also considered the plaintiff was unfit to ever return to her pre-injury duties as a baker/pastry cook.
20 On 11 May 2010, Mr David Brownbill, a neurosurgeon, saw the plaintiff on behalf of her solicitors. It was his view that the plaintiff would need to avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged standing or sitting. He considered it was likely that she would need to continue working on reduced hours, that she would not be able to return to her pre-injury pastry cook employment and her partial incapacity for work was permanent.
The Defendant’s Medical Evidence
21 In March 2003, the plaintiff was medically examined by Mr Daryl Nye, a neurosurgeon. It was his view that the plaintiff was incapacitated for pre-injury employment and that the light duties she was currently undertaking represented a maximal commitment. He was unable to predict the likely duration of her incapacity.
22 In March of 2004, Dr Nye said:
“The disorder remains symptomatic and there are psychological accompaniments, and particularly depression, and some suspected amplification of symptoms. Nevertheless the subject is working, and with appropriate restrictions and to a level of 18 hours per week, I consider that this represents a current maximal commitment.”
23 On 7 October 2004, the Medical Panel said that, in its opinion, the worker was capable of undertaking further hours of work in her current position. The plaintiff was working 20 hours in October of 2004.
24 In July 2007, the plaintiff was examined by Mr Anthony Buzzard, a general surgeon. It was his view that it was reasonable to accept that the plaintiff did have a ‘light work’ back, such that she could not work in a job involving heavy lifting, bending and stooping. He said this would preclude her from her pre- injury employment. However, he thought she could carry out suitable employment, such as she was presently doing. He thought the employment could be increased in terms of hours, though he appreciated the fact that her back problems do come on if she has been “on her feet” for prolonged periods of time. Mr Buzzard was aware that the plaintiff was at that time working 15 hours per week, spread over three days.
25 In May 2010, the plaintiff was examined by Mr Michael Fogarty, an orthopaedic surgeon, at the request of the defendant. It was his opinion that the plaintiff had degeneration of the lumbosacral disc with traumatic right posterio-lateral protrusion without causing neurological deficit. Several medical investigations have shown persistence of the degeneration, protrusion and reactive new bone formation at the lumbar sacral level.
26 In respect to the prognosis, Mr Fogarty thought it fair to poor. He said the plaintiff’s condition had stabilised and there was unlikely to be any significant improvement, nor indeed significant worsening. He said she had a current work capacity and she could work as a sales assistant, both standing and sitting, but not doing any heavy lifting or bending. He did not consider she was fit to return to work as a baker or pastry cook and said that, in his opinion, she could only work part-time, no more than 20 hours per week. He believed her incapacity was fully attributable to her employment incident and he considered the duration of her incapacity was permanent, that is for the foreseeable future. He considered her future work capacity was of the type of work he referred to above and for 15 hours per week (not greater than 20 hours per week) on the basis of her physical injuries.
The Plaintiff’s Credit
27 The plaintiff impressed me as a truthful witness. She answered all questions in a direct manner. She conveyed a keenness to work, which is borne out by her work history with the defendant. She returned to work with the defendant after the accident and has worked consistently until she had time off work when her son was born, and another short period for another medical problem. She is currently working 15 hours per week and told the Court that she would love to work longer hours. In fact, she has asked for more hours but considers 20 hours per week is the limit. This is supported by Mr Fogarty and Dr Elsaafin. The plaintiff was frank with the Court, in that she explained the problems she had when she worked longer hours. I note that none of the doctors who treated and examined the plaintiff for medico-legal purposes made any criticism of her complaints.
The Defendant’s Submissions
28 The defendant’s submission was that the medical reports suggested that the plaintiff could increase her hours of work. If she worked 23 hours per week she would not be able to discharge her onus of satisfying the requirements of s.134AB(38)(e)(i) and (ii) and (f).
29 In summary, the medical evidence is that the plaintiff cannot return to her previous employment as a pastry cook/baker, that any work she undertakes has restrictions of avoiding bending and heavy lifting.
30 Other than the reports of Mr Brazenor, the other doctors accepted that the plaintiff was limited to the number of hours per day and the number of days per week that she could work. Most of the reports were from 2003 and 2004. I consider those reports do not assist me in assessing the plaintiff’s current position. I favour relying upon the reports that are current, namely the report of Mr Fogarty, who considered the plaintiff could only work part-time, no more than 20 hours per week, and that her incapacity was permanent, that is for the foreseeable future. He said her future work capacity was for 15 hours per week (not greater than 20 hours per week) on the basis of her physical injuries. Dr Elsaafin, in April 2010, stated that the plaintiff could continue on her current capacity of work (15 to 20 hours per week) as tolerated.
31 The defendant relied on a statement in Dr Sillcock’s report of April 2009 that the plaintiff said she could probably increase her hours of work to 5 hours per day, 5 days per week if she did it gradually. The plaintiff’s evidence in cross- examination was that she had no recollection of making that statement to the doctor.
32 Further, the plaintiff gave evidence that she gets pain when she works more than 20 to 21 hours. I accept that the plaintiff was a witness of credit. I refer to paragraph 26. The plaintiff’s evidence is consistent with the most up-to- date medical evidence, that of Mr Fogarty and Dr Elsaafin. Accordingly, I accept that she is limited to 20 hours of work per week and that this is permanent.
Loss of Earning Capacity
33 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a)
at the date of the hearing she has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and
(b)
after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
34 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 35 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
36 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
37 It is to be calculated by reference to that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity.
38 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[1]
[1] (2005) 14 VR 622, at paragraph 70
39 Counsel for the plaintiff provided the following table which sets out the “without injury” and “after injury” earning capacity and sets out the percentage increases in the applicable agreement that applied to the plaintiff. I was told that the defendant’s table was accepted as accurate.
Date Wage Increase Base salary Increase New Annualised
Salary
July 2002 1.323% $31,961 $423 $32,384 Jan 2003 1.323% $32,384 $428 $32,812 Feb 2004 1.75% $32,812 $574 $33,386 Aug 2004 1.75% $33,386 $584 $33,971 Feb 2005 1.75% $33,971 $594 $34,565 40 I accept the submission that the plaintiff’s “without injury” earning capacity is at least $34,565.00 per annum. Sixty per cent of this is $20,739.00. Comparing sixty per cent of the “without injury” earning capacity of $20,739.00 with the income presently available to the plaintiff based on working more than 20 hours, namely $18,574.00, the plaintiff satisfies the arithmetical formula established by the Act.
41 Having regard to the opinions expressed by Mr Fogarty, Dr Sillcock and Mr Brownbill, the plaintiff’s incapacity in this regard is permanent.
42 I am also required to consider issues of re-training and rehabilitation pursuant to sub-section (g).
43 The defendant submitted that in view of Dr Elsaafin referring the plaintiff to a further rehabilitation program, I have no evidence that the rehabilitation will not help her to increase her hours of work, therefore the plaintiff has not discharged the burden.
44 The plaintiff’s evidence was that she was being referred to rehabilitation for pain management. The medical evidence is that her condition is stable and permanent. There is no suggestion in the medical evidence that further rehabilitation will improve her work capacity. I note that she attended rehabilitation in the past and it is now eight years since the accident. Accordingly, I do not consider that rehabilitation will alter the situation that she has a loss of earning capacity of 40 per cent or more.
45 I am satisfied that the plaintiff has no prospect of re-training and re-education which would enhance her earning capacity.
46 As rehabilitation and re-training have nothing to offer her in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
47 The plaintiff has leave to bring proceedings for loss of earning capacity.
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