Mohamed v Victorian WorkCover Authority
[2015] VCC 774
•10 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01898
| HUSSEN MOHAMED | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2015 | |
DATE OF JUDGMENT: | 10 June 2015 | |
CASE MAY BE CITED AS: | Mohamed v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 774 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury to the lumbar spine – pain and suffering and loss of earning capacity – thresholds with respect to both categories
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings at common law for damages for pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Mr N J Dunstan | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms M Britbart | Wisewould Mahoney |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Spotless Facility Services Pty Ltd (“Spotless”) between the years 2004 and 2011.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
3 There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied on two affidavits, sworn 17 December 2013 and 19 May 2015.[1] He also tendered in evidence an affidavit of his wife, Zebiba Mohamednur, sworn 4 June 2015.[2] In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
[1]Exhibit A
[2]Exhibit B
6 Impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. By virtue s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being more than significant or marked, and as being at least very considerable.
7 Those consequences also must be made out with respect to loss of earning capacity.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made with the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] in reaching my conclusions.
[3](2005) 14 VR 622
9 Pursuant to s134AB(38)(b)(ii), (c) and (e) of the Act, the term “serious” with respect to loss of earning capacity, refers to the consequences of an injury which must also be described as being more than significant or marked and as being at least very considerable. In addition, the worker must show that at the date of hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more, and will continue to permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
10 It is common ground in this proceeding that the injury suffered by the plaintiff is as set out in exhibit H, which is an MRI scan dated 21 October 2011. Relevantly, that scan reveals disc protrusions at L1-2, L2-3 and L5-S1. It also reveals an annular tear at L3-4 and L5-S1, with the conclusion of the radiologist being:
“Multi-level degenerative disc disease, with disc protrusions and annulus tears as described.”
11 It is also common ground between the parties that that injury arising out of the course of the plaintiff's employment has permanent physical consequences, both with respect to pain and suffering and with respect to economic loss, the latter consequences to include the fact that the plaintiff is not fit for his pre-existing employment.[4] However, the issue in the case revolves around whether or not the plaintiff has discharged the onus of proof with respect to the threshold that needs to be met with respect to both categories.
[4]Mr Hooper – exhibit 2; Dr Yong – exhibit 5
The Plaintiff’s injury/work duties
12 The plaintiff was born in Eretria in November 1966 and is presently aged forty-eight. He lives with his wife and two daughters, aged seven and nine respectively. He commenced employment with Spotless as a Patient Services Assistant at The Alfred hospital in 2004. He was employed, although on a part-time basis, for between 40 to 50 hours per week. His annual income as at 30 June 2010 was $54,052.
13 As a Patient Services Assistant, his duties included assisting nurses with lifting patients, changing heavy oxygen cylinders, cleaning patients’ rooms and the general areas, re-stocking heavy medical equipment, pushing and pulling beds between wards, and assisting wheelchair patients. His work, it is alleged, involved a lot of heavy and repetitive activities such as changing oxygen and pushing and pulling of beds. This evidence was not contested.
14 The plaintiff first experienced pain in his back in approximately July 2008, and was taken by ambulance to the Emergency Department at the Western Hospital. He was prescribed some strong analgesics, and was referred for physiotherapy. He later returned to work on light duties, and then eventually returned to his pre-injury duties in about July 2009.
15 Once again, he suffered a reoccurrence of his back pain in about January 2011, after performing his pre-injury duties. Thereafter, he only performed light duties until he was finally discharged from employment in approximately January 2013.
Rehabilitation/Residual working capacity
16 The plaintiff underwent a rehabilitation course at the Dorset Rehabilitation Centre between 2 June 2014 and 29 September 2014. Before and after that program, he had been assessed by occupational physician, Dr Clayton Thomas.
17 In his report dated 11 February 2015,[5] Dr Thomas indicated that he had referred the plaintiff to the rehabilitation centre, and appended the Discharge Summary to that report. He then provided a further report dated 1 June 2015.[6] He confirmed the agreed diagnosis of symptomatic spondylosis, which produced low-back pain and referred pain into his legs.
[5]Exhibit F
[6]Exhibit F
18 Dr Thomas stated, at that time:
“Based on my clinical notes, I think he can work in a back-friendly work environment. I think he can work with lifting between waist to chest height of 5 kg frequently, 10 kg occasionally. He needs to avoid the one posture for prolonged periods. I think he has standing and sitting tolerances for one hour. Walking, I think, would be two hours. …
Working as outlined above would allow him to work 30 hours per week in a reliable and efficient manner. Any increase in the workload would need a reduction in work hours per week.”[7]
[7]Exhibit F – Plaintiff’s Court Book (“PCB”) 49a
19 The defendant has also had the plaintiff assessed by occupational physician, Dr Yong, who reported to the defendant’s solicitors on 19 May 2015.[8] He stipulated that the plaintiff had a current capacity for work, with the following restrictions:
[8]Exhibit 5
“Initial reduction in working hours such as four hour shifts for four days per week.
· Avoid repeated bending and twisting the back
· Vary posture regularly between sitting, standing and walking
· Avoided repeated firm pushing and pulling.
· Avoid lifting more than 5 kilograms on a repeated basis.”[9]
[9]Exhibit 5
20 Dr Yong further stated:
“It would be expected the plaintiff would be able to gradually increase his working hours. I would anticipate that the initial aim would be to start at 16 hours per week, and to progressively increase till approximately three quarters of his pre-injury hours such as 30 hours per week. I would envisage that this could take a four to five month period.”[10]
[10]Exhibit 5 – Defendant’s Court Book (“DCB”) 93
21 Defence counsel relies principally upon these opinions to establish that the plaintiff has not proved the necessary 40 per cent reduction in income. In particular, counsel refers to the NES Vocational Assessment Report dated 13 December 2013.[11] Therein, a number of occupations are specified to wit: import/export clerk, mail clerk, general clerk, enquiry/customer service clerk/information desk clerk.
[11]Exhibit 6
22 The relevant occupations would be productive of earnings for 30 hours per week of $855, $690, $709 and $705 respectively. It is common ground that the threshold weekly wage earning for the plaintiff, being 60 per cent of his pre-injury average weekly earnings as stipulated by the statutory formula, is $681. It follows that if Dr Thomas and Dr Yong are to be accepted, the plaintiff would not have established the necessary thresholds.
23 Defence counsel also relies on the recent report of orthopaedic surgeon, Mr Hooper, dated 17 April 2015.[12] Mr Hooper confirms the accepted diagnosis, and stated:
“He said he hopes to get back to work and do light work, but it is clear he will not get back to any form of physical work involving bending, or lifting.”[13]
[12]Exhibit 2
[13]Exhibit 2, DCB 31
24 Further, Mr Hooper stated:
“Since last seen [the plaintiff] tells me his condition has improved significantly due to the back pain and rehabilitation course that he has had. He is not participating in a self exercise program, and that would help him also.”[14]
[14]Exhibit 2, DCB 31
25 And further, Mr Hooper stated:
“As far as function is concerned he should not participate in work that involves, bending, lifting or vibration. He says, however, his back is very much better. He is taking no medications, but I do think he should be aware of the importance of keeping his weight to an optimal level, and exercising regularly and maintaining the strength of his abdominal and paravertebral muscles.”[15]
[15]Exhibit 2, DCB 32
26 The plaintiff, for his own part, has sworn that he is indeed taking medication at present consisting of three to four Panadol per week which is obtained over the counter. In addition, the defendant has tendered in evidence his general practitioner’s prescription regime which shows that the plaintiff was prescribed Endone tablets in February 2014 which probably consisted of a packet of 20 capsules.[16] He has given sworn evidence that he has flare-ups of back pain approximately twice per month, which effectively puts him out of his daily routine for up to three days at a time.
[16]Exhibit 8
27 The prescription in February of 2014, on the evidence, would seem to have lasted until January 2015. The plaintiff's wife then underwent an operation, where, as a consequence of which, she also was prescribed Endone. Both husband and wife have sworn that he has access to the residual capsules of Endone that have been given to him by his wife. In any event, it would appear that he has consumed something like 20 capsules from his original prescription over eleven months, which is something of the order of less than two per month.
28 Defence counsel has also referred to the recent opinion of the plaintiff's treating general practitioner, Dr M Hagos, dated 5 May 2015.[17] In that report, Dr Hagos stated:
“Based on further assessment … [the plaintiff] is improving and progressing well. He is benefiting from physiotherapy and we hope sooner rather than later that he will be back to his usual job of capacity (sic) With time … [the plaintiff] will recover with some hope of less impairment with his lower back. … [The plaintiff] is suffering from both physical and psychological issues.”[18]
[17]Exhibit C
[18]Exhibit C, PCB 29
29 Within that report, however, is the contradictory statement that his –
“… back condition ... is not improving despite having a lot of treatment. He has been visiting a psychotherapist and is getting some counselling.”[19]
[19]Exhibit C, PCB 29
30 I pause, at this stage, to state that it was only the plaintiff who was cross-examined on any material tendered in evidence. Senior Counsel for the plaintiff has outlined at least eight categories of evidence wherein it is submitted that the plaintiff has established the “very considerable” test with respect to pain and suffering and loss of earning capacity.
31 In particular, he refers to the following uncontradicted evidence:
(i)The plaintiff has sworn that he is in constant pain in his lower back and left leg, and that he has this pain constantly every day. He further swears that the pain is made worse by any prolonged sitting, standing, walking, bending, twisting and reaching. As much as possible he tries to avoid all of these activities;[20]
(ii)The plaintiff alleges his sleep is impacted by his back pain on most nights. He struggles to get a good night’s sleep as a consequence of that pain. He has sworn that on a bad night, he will wake up at least twice as a consequence of back pain, and this will keep him up for two to three hours during the night;[21]
(iii)The plaintiff has sworn that he has difficulty performing everyday activities such as tying his shoes, performing housework and playing with his two young daughters;
(iv)The plaintiff has also sworn that his sexual relationship with his wife has been affected to the extent that it has negatively impacted on his relationship;[22]
(v)The plaintiff’s ability to engage in recreations such as table tennis or social football with his friends on Sunday afternoons has been severely impacted. However, it was conceded by him that he had not played soccer for some time prior to suffering the relevant injury.
[20]Exhibit A, affidavit of the plaintiff sworn 17 December 2013, paragraph [24]
[21]Exhibit A, affidavit of the plaintiff sworn 17 December 2013, paragraph [25]
[22]Exhibit A, affidavit of the plaintiff sworn 17 December 2013, paragraph [28]
32 Since swearing his first affidavit, the plaintiff had attended the Dorset Rehabilitation Centre, and referred to same in his second affidavit of 19 May 2015. He stated:
“I found this course was helpful insofar as it gave me strategies to try, and avoid aggravating my back and leg pain, and not to be so reliant on taking painkilling medication.”[23]
[23]Exhibit A, affidavit of the plaintiff sworn 19 May 2015, paragraph [3]
33 The plaintiff swore that he is seeing his general practitioner about once a month, and that he was currently taking Endone twice a month for severe flare-ups of back pain, and otherwise he would only take Panadol about once every two days. He also swore that he uses Endone, as already stated, as prescribed for his wife.[24]
[24]Exhibit A, affidavit of the plaintiff sworn 19 May 2015, paragraph [4]
34 Importantly, he has sworn that he experiences “a severe flare-up of back and leg pain about two times a month”. When he gets a severe flare-up of back and leg pain, he will take Endone and rest completely for 24 hours. Even after that resting for 24 hours, it normally takes him two to three days to recover completely after that particular flare-up. He further alleges that when he is experiencing a severe flare-up of back pain, there was “no way that … [he] would be well enough to attend for work”.[25]
[25]Exhibit A, affidavit of the plaintiff sworn 19 May 2015, paragraph [4]
35 Although his sleep has improved since his rehabilitation course, he swears that he is still “disturbed most nights of the week because of back and leg pain”.[26]
[26]Exhibit A, affidavit of the plaintiff sworn 19 May 2015
36 The plaintiff's wife swore an affidavit dated 4 June 2015.[27] She confirmed that she was given a packet of 20 Endone tablets following an operation in January 2015, and she only used that packet for two days before she stopped taking the Endone. She swears that she gave the rest of the packet to her husband for his back pain. She further swears that she has seen him use these tablets for his back pain.[28] Further, she swears:
“I have seen my husband get back pain so bad that he cannot get out of bed. He gets this severe pain only sometimes, it would probably happen about two times a month. It seems to happen more often when the weather is colder. When he gets this severe pain he spends most of the day in bed resting.”[29]
[27]Exhibit B, affidavit of the plaintiff’s wife sworn 4 June 2015
[28]Exhibit B, affidavit of the wife of the plaintiff sworn 4 June 2015, paragraph [3]
[29]Exhibit B, affidavit of the wife of the plaintiff sworn 4 June 2015, paragraph [4]
37 She further corroborates his inability to perform the other everyday tasks as already alleged.
38 Senior Counsel for the plaintiff did not submit that the figures shown in exhibit 6 would not disentitle his client to a certificate for economic loss. Accordingly, if the plaintiff was in fact able to work for 30 hours per week as stipulated, he would not be relevantly entitled. However, he submits that I should be satisfied that the plaintiff is unable to work those 30 hours per week because:
(i) The plaintiff suffers one or two flare-ups per month which would make him an unreliable candidate for any employment, even of a light-work nature, given such employment would be ongoing;
(ii) He submits, in any event, that all the jobs stipulated require the plaintiff to be seated for most of the 30 hours of such employment.
39 In particular, he refers to exhibit 7, which is the Recovre Suitable Employment Report dated 1 June 2015, where it is indicated that the position of a despatch clerk would involve computer-based tasks, which would occupy 90 to 95 per cent of the work day, and are typically completed whilst seated.[30]
[30]Exhibit 7, DCB 105d
40 He further submitted that the plaintiff was obviously in some discomfort in the witness box, and had to stand and sit at various times, and was in some measure of obvious pain. He said, in all the circumstances, I should accept the plaintiff as a witness of credit, and find that he has discharged the onus in this regard.
41 As indicated to both counsel, I considered that the plaintiff essentially gave his evidence in a straightforward manner, and conceded matters in careful cross-examination, which needed to be conceded. In particular, he stated that he had been assisted by the rehabilitation course of 2014, but he still felt unable to involve himself in any employment because of ongoing back pain.
42 Whether or not this is an accurate assessment, I do find that he was a witness of credit, and I consider that his actions in standing and sitting in the witness box were not accompanied by obvious grimacing or exaggerated affect. I take into account that he has given sworn evidence of the flare-ups occurring twice per month, and that this is corroborated by his wife.
43 In all the circumstances, I consider that the plaintiff has discharged the onus of proof, in the sense that he would not be a reliable employee on an ongoing basis, and I am not satisfied that he would be able to sit in a sedentary job for substantial periods, such as 30 hours per week.
44 In all the circumstances, I will grant leave to the plaintiff to commence proceedings at common law for economic loss and based on the principles laid down in Advanced Wire and Cable Company Pty Ltd & Anor v Abdulle.[31] I will also grant leave for the plaintiff to issue proceedings for pain and suffering.
[31][2009] VSCA 170
45 I will hear counsel as to any consequential orders.
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