Newell v Karingal Inc
[2010] VCC 1578
•24 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00152
| Jeanene Leigh Newell | Plaintiff |
| v | |
| Karingal Inc | Defendant |
| Victorian WorkCover Authority | Second Defendant |
---
| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 & 28 September 2010 |
| DATE OF JUDGMENT: | 24 November 2010 |
| CASE MAY BE CITED AS: | Newell v Karingal Inc & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1578 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment – injury to the cervical spine – loss of earning capacity – pain and suffering
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell S.C. | Clark Toop & Taylor |
| with Mr T. Ryan | ||
| For the Defendant | Mr N. Chamings | Thomsons Lawyers |
| HER HONOUR: |
1 The plaintiff applies under s s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of a permanent serious impairment of the function of the cervical spine sustained during the course of her employment with the first defendant, Karingal, as a disability care worker from 19 January 2005 to 2 February 2009, with particular episodes of injury to the neck on 18 October 2005 and 1 May 2007. In the first incident, she was assaulted by a client, who hit her on the face, neck and left shoulder. She developed pain and tingling in the left arm. She suffered further neck and shoulder pain in the second incident when her left hand became caught in a swing as she was trying to calm a client.
The injury
2 The compensable injury relied upon is the aggravation of asymptomatic underlying cervical spondylosis with a left C6 radiculopathy secondary to C5/6 disc and osteophyte complex. Although the cervical disc was surgically treated in January 2008 with decompression and fusion that was technically sound, the plaintiff has been left with significant neck and left arm symptoms requiring ongoing conservative treatment. She stopped work at Karingal on 2 February 2009 and her position was terminated on 18 June 2009 when the defendant could no longer continue to provide her with suitable alternative employment in light of her work restrictions. In October 2009 she returned to work 22 hours per fortnight at an Aged Care Facility in the invalid section. She says she cannot work more hours due to her symptoms.
The issues
3 The plaintiff says that her neck impairment has converted her capacity to work from that of a full-time qualified care worker to a part-time worker in alternative work subject to medical restrictions with a greater than 40% income loss on the statutory criteria, and that both episodes of injury are significant contributing factors to that result.
4 The defendant maintains that the actual pre-injury hours worked is the closest measure of the plaintiff’s pre-injury capacity, particularly in the light of a long absence from the workforce due to a 1998 back injury and the lack of medical corroboration of a full-time capacity. The defendant also contends that the first episode of injury had only limited effects which lasted only a finite period. Finally, the defendant relies on the Konekt report which identified the following vocational options: enquiry clerk, therapy aide, receptionist, personal assistant, and integration aide; and on the opinion of Mr Dooley to the effect that the plaintiff has a residual capacity to work in those positions. The defendant says that the plaintiff should fail in both limbs of her application.
The hearing
5 At the hearing, the plaintiff gave evidence and was cross-examined. Defendant’s counsel was unwell on the second day of the hearing, and with the consent of the parties I ordered that written submissions be filed and exchanged. These were received by 10 October 2010.
6 The plaintiff relied on her affidavits, radiological reports,[1] some of the clinical notes, correspondence and reports (dated 19 April 2009 and one more recent, but undated report) of the plaintiff’s treating general practitioner, Dr Henderson; notes from the Alfred Hospital dated 28 March 2007; the reports of the plaintiff’s treating neurosurgeon, Dr Richard Bittar);[2] the reports of her treating physiotherapist, Mr Peter Biskup;[3] the medico-legal reports of Mr David Brownbill, neurosurgeon[4] and Mr John O’Brien,[5] orthopaedic surgeon. The plaintiff also relied on two Employer’s claim reports dated 27 February 2006 and 15 May 2007; pay slips for the period 19 June 2008 to 26 March 2009; and the letter of termination from Karingal dated 18 June 2009.
[1] X-ray of the cervical spine dated 17 February 2006 and CT scan of the cervical spine dated 14 April 2007.
[2] The reports are dated 28 September and 12 December 2007; 15 January and 16 July 2008; and 3 June 2009.
[3] The reports are dated 31 May 2007 and 30 June 2009.
[4] The reports are dated 24 June, 9 and 29 July 2009 and 2 September 2010.
[5] The report is dated 7 August 2009.
7 The defendant relied on the medico-legal reports of orthopaedic surgeons Mr Peter Kudelka[6] and Mr Michael Dooley,[7] and on four reports of Dr Gary Davison,[8] occupational physician. The defendant also relied on the Konekt vocational assessment report dated 22 May 2009.
Serious Injury - Legal Principles
[6]
[7] The report is dated 28 March 2006.
[8] The report is dated 29 July 2010.
8 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function whose consequences to her in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[9] fairly described as being more than significant or marked, and as being at least very considerable.[10]
[9] The reports are dated 20 May and 3 December 2008, and 2 and 10 December 2009. See section 134AB(38)(b) of the Act.
[10] See section 134AB(38)(c) of the Act.
9 Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[11] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[12] On the authorities,[13] the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[11] Fleming v Hutchinson (1991) 66 ALJR 211.
[12] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[13] Ibid [80].
10 The whole of the evidence before the court should be considered, not just the medical evidence.[14]
[14] Ibid, [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at
11 Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[15]
[15] [170].
12 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury she has suffered a permanent loss of earning capacity of 40% when a comparison is made between her without injury earnings in the three year period before and after period as best reflects her earning capacity, and her earning capacity at the present time from suitable employment.[16] The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical or mental capacity for suitable employment after the injury and her attempts to participate in rehabilitation or retraining, she has a capacity for any employment which, if exercised, would result in her earning more than 60% of her pre-injury earnings as determined in accordance with paragraph (f) of section 134AB(38) of the Act.[17]
[16] Barwon Spinners Pty Ltd & Ors v Podolak [2002]VSCA 33; Petkovski v Galletti (1994) 1 VR 436.
[17] See Section 134AB(38)(g) of the Act.
13 The definition of suitable employment is set out in section 5(1) of the Act, which provides:
“suitable employment, in relation to a worker, means employment in work for
which the worker is currently suited –
(a) having regard to –(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
14 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.[18]
Medical evidence as to work capacity
Treating practitioners
[18] See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].
15 On 18 April 2006, Dr Henderson reported to CGU that the clinical features and radiological investigations pointed towards a diagnosis of either a facet joint strain or other soft tissue strain of the left side of the cervical spine which was consistent with her account of what occurred in October 2005. On examination he noted a reduced range of movement of the cervical spine. He felt that the prognosis was unclear as he could not predict whether the problem would stabilise at the current level or would resolve further. He felt that the “key to this is whether or not she sustains any further injury or even strain to the cervical spine”.[19] He felt that with good pain control, a better range of movement, and less stiffness, she could embark on a graduated return to work place aimed at a return to pre-injury duties. However, he felt it would be important to avoid any significant lifting in the future and to avoid the risks of further impacts to her head and cervical spine.
[19] Plaintiff’s Court Book (PCB) 89.
16 The plaintiff returned to see Dr Henderson on 9 February 2007 with left arm tingling and numbness from the shoulder downwards, with a history of having performed a lot of gardening.
17 On 22 June 2008, Dr Henderson reported to CGU that the plaintiff complained of ongoing neck stiffness, with pain at the back of the neck, as well as frequent headaches, and some mild left arm weakness. She was taking paracetamol as required and seeing her physiotherapist every three weeks. On examination he found global reduction in the cervical spine range of movements, with some residual mild weakness of the left arm and shoulder. He felt that the neck surgery by Mr Bittar had succeeded in almost completely resolving the pain in the left arm and that the strength of her left arm was improving. She was no longer taking Mobic and Panadeine Forte. He felt that she would suffer neck stiffness and neck pain permanently, but expected the left arm weakness to resolve completely.
18 On 19 April 2009, Dr Henderson reported that the plaintiff continued to need ongoing but intermittent use of simple analgesia like paracetamol and Mobic for her neck pain, in spite of a lifting limit of 12 kilograms. He noted her complaint in February 2009 about an exacerbation of left arm symptoms, pain and weakness and numbness in the left arm, and a tense neck. He put her off work for psychological reasons.
19 In a later report (which is undated but must be after the last consultation referred to in the report, which occurred on 24 August 2010), Dr Henderson noted that in May 2010 a discussion with the plaintiff which established that “she was (in general) able to cope with her normal workload, which involved a 2 week cycle, doing 15 hours the first week, then 7 hours the next week”.[20] However, she continued to suffer a lot of tightness, headaches and shooting pains down the left arm, as well as pain all around the neck and shoulders. Dr Henderson noted that these neck symptoms were still present in August, and that the plaintiff was having physiotherapy every three weeks (for which she was paying herself).
[20] PCB 30.
20 Mr Bittar saw the plaintiff in September 2007 and in January 2008 he performed a C5-6 microdiscectomy and an anterior interbody fusion. On 16 July 2008, Mr Bittar noted that the plaintiff reported negligible neck pain but some loss of rotation of her cervical spine and occasional transient left arm pain lasting a few seconds. She was still taking anti-inflammatories occasionally. He advised her to use paracetamol instead. He felt she could increase her work hours to 20 hours per week but should continue on restricted duties for another six months. He felt she should not lift weights more than 12 kilograms nor engage in any repetitive neck or left arm movements, and she should change her posture frequently.
21 On 28 January 2009, Mr Bittar noted that she was still experiencing some left sided neck pain with occasional pain radiating into her left arm. She was taking oral analgesics and having weekly physiotherapy. He noted that she was struggling with working 12 hours per week on modified duties. He felt that she would require permanent modification of her workplace activities, with no repetitive neck or left arm activity, forceful pushing or pulling, or lifting objects weighing more than 8 to 10 kilograms. She would have to avoid keeping her neck in a fixed posture for prolonged periods. He felt that she would permanently be restricted to working 15 to 18 hours per week.
22 On 3 June 2009, Mr Bittar found that she had relatively full range of cervical spine motion, with slightly reduced power of left elbow flexion and a decreased left brachioradialis jerk. The plaintiff reported some left sided neck pain occasionally radiation into her left arm. He repeated his earlier conclusions concerning work restrictions. He felt that she would permanently suffer “from a degree of low grade symptoms and disability”,[21] and required ongoing physiotherapy. He felt she may require referral to a pain specialist in the future.
Medico-legal examiners
[21] PCB 43.
23 Only Mr Kudelka, in early 2006, felt that the plaintiff would have the capacity eventually to do her pre-injury work 30 hours per week. At that time, she was working 14 hours per week.
24 Dr Gary Davison, occupational physician, opined in May 2008 that she could do pre-injury hours of work in suitable duties with the following restrictions: no manual handling of more than 10 kilograms; no forceful or repetitive pushing or pulling with the arm; no prolonged single neck posture. In December 2008 Dr Davison noted that there had been no change in her condition and that she continued to suffer from neck stiffness and headaches. She was working 18 hours per week at that time. He reached the same conclusions expressed earlier. He expressed the same opinion in December 2009.
25 In August 2009, Mr O’Brien concluded that the plaintiff was potentially capable of light duties on a limited hours basis.[22]
[22] See PCB 48.
26 In July 2010, Mr Dooley felt it was possible that a disc prolapse occurred at C5/6 level in October 2005 against a background of degenerative disc disease, and that the incident of May 2007 aggravated these symptoms. He felt that she would permanently suffer variable left arm pain and tingling. He concluded that she could not work full time but would work part-time doing “most of the duties” of a customer service adviser, therapy aide and secretary. He felt that her ability to work as an integration aide depended on the physical needs of the clients and their potential behavioural volatility.
27 In August 2010, Mr Brownbill concluded that the plaintiff was presently working to her maximum capacity at 22 hours per fortnight.
Radiology
28 X-ray of the cervical spine on 17 February 2006 was reported as revealing mild narrowing of the disc spaces from C3 to C7, with small vertebral endplate osteophytes at the C6-7 level.
29 MRI of the cervical spine on 14 April 2007 was reported with the following comment:
Comment:
Mild degenerative changes at C4/5 with no evidence of neural compromise.
Moderate disc degenerative changes at C5/6 and C6/7 with moderate bilateral foraminal stenosis at C5/6, probably predominantly due to osteophyte rather than disc, and this could be compromising the C6 nerve roots on either side.
There is moderate foraminal narrowing at C6/7 on the right, with the appearance suspicious for a component of foraminal disc contributing to the neural compromise and this may be compromising the right C7 nerve root.
No other evidence of neural compromise.[23]
[23] Defendant’s Court Book (DCB) 16.
Compensable injury
30 I note that the defendant has accepted claims for compensation in respect of each episode and that there has been no issue as to the existence of a permanent neck impairment as a result of compensable injury for the second episode.
31 I am satisfied on the medical evidence that during the course of her employment from 19 January 2005 to 2 February 2009, particularly after episodes of injury to the neck on 18 October 2005 and 1 May 2007, the plaintiff has suffered an aggravation of underlying cervical spondylosis with C5/6 disc/osteophyte complex causing left foraminal stenosis and compression of the left C6 nerve root with radiculopathy to the left upper limb. Loss of earning capacity
Without injury earning capacity
32 Based on the plaintiff’s evidence and associated objective circumstances, I am satisfied that the plaintiff had full capacity pre-injury. I am so satisfied for the following reasons.
33 I accept the plaintiff’s evidence that her 1998 back injury resulted in some restrictions but did not cause her to choose part-time work. She said[24] quite emphatically:
I think I’ve said previously I was offered the work and I was quite capable of doing 36 hours a week if that’s what they required, and the extra residential care if that’s what they required.
[24] T (Transcript) 50.
34 I accept the plaintiff’s evidence[25] that full-time work was quite important and that she had obtained Certificates III & IV in Disability Care with the objective of working full-time in that area.
[25] T51.
35 The plaintiff’s recollection was that she worked 30 hour weeks on occasion prior to injury. Scrutiny of the records show that she only worked 30 hours per week for the fortnight ending 18 October 2005. I do not consider that this variation is significant, nor that it detracts from the reliability of her evidence as to the hours she was capable of working.
36 I note that there are other objective indicia of a pre-injury full-time work capacity. For example, she played A Grade level competitive tennis for two years before her injury, and was part of a premiership tennis team in May 2005. In addition, she obtained Certificates III & IV in Disability Care. Furthermore, the plaintiff managed her condition after injury in October 2005 until she saw a doctor in February 2006 by taking paracetamol. This suggests her availability to work full time with her new qualifications if such work was available to her. Finally, and most importantly, the history of her re-education and self-rehabilitation after her 1998 back injury and the subject neck injury demonstrates a degree of motivation which suggests the likelihood that she would have worked full time pre-injury subject to the availability of work.
37 I am satisfied that notwithstanding the limited contract ordinary hours available to the plaintiff prior to injury, she had the capacity to work full-time hours (that is, at least full time hours of 38 hours per week). The earnings which fairly reflect that capacity within three years of, say, 18 October 2005, are $19.59 per hour,[26] producing the sum of $744.40 per week. 60% of that figure is $446.65 per week.
Impact of the 18 October 2005 injury
[26] PCB 164.
38 Whilst the evidence suggests some good improvement during the second half of 2006, for the following reasons I reject the defendant’s submission that the first incident had only a limited and finite effect on the plaintiff.
39 Firstly, I note that Dr Henderson felt that the x-ray of 17 February 2006 showed that there was already narrow nerve root foramina. He was uncertain about her prognosis in April 2006 and felt, in particular, that it was especially important for her to avoid any significant lifting and to avoid further impacts to her head and cervical spine. It is clear that after the first incident of 18 October 2005, the plaintiff’s work duties until the second episode were modified to cater for an ongoing disability.
40 Secondly, it is clear from subsequent events that Dr Henderson’s view was correct. The plaintiff returned to him on 9 February 2007 with left arm tingling and numbness from the shoulder downwards after doing a lot of gardening. Subsequent attendances and radiology, particularly the MRI scan of 14 April 2007, all point to an established ongoing problem prior to the aggravation on 1 May 2007.
41 I consider on the evidence that while the plaintiff’s condition improved after the first injury, it did not completely resolve and its effects did not cease in 2006. I consider that the injury on 18 October 2005 left her with a vulnerability to further worsening of symptoms by any strain or stress to the cervical spine, and, in this sense, has been a cause of all that has followed. At the same time, the strains in the course of employment and the later episode on 1 May 2007 have also played a part in causing the permanent impairment to the function of her cervical spine.
42 On the authorities, each episode of injury may be seen as making a significant contribution to the consequences relied upon to constitute serious injury with each operating simultaneously to produce those consequences.[27]
With injury capacity
[27] See Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 at [56]-[58]; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA at [27].
43 There is universal agreement (as between the plaintiff and all medical practitioners) that the plaintiff is permanently incapacitated for her pre-injury work as a care worker, and that she is capable of working only part-time in alternative and less physically demanding employment.
Plaintiff’s evidence
44 The plaintiff’s evidence is that since October 2009 she has been working in the invalid section of an Aged Care Facility. She works seven hours on Thursday one week (four hours in the morning and three hours in the evening), and the next week works seven hours on Thursday, four hours on Saturday and four hours on Sunday. Her duties involve pushing trolleys, preparing breakfast trays, putting dishes in the dishwasher, wiping down the kitchen sink, making toast and tea, and cleaning the bathroom. She takes medication every day and extra Panadeine Forte on the days she works. On one week she works seven hours on a Thursday (four hours in the morning and three in the evening) which is broken up with a break in the afternoon, when she has to lie down to rest. She has trouble lifting and has to leave some tasks because she cannot do them. She needs help pushing the trolley and handling plates.
45 The plaintiff said that she tried to work 30 hours in one fortnight but could not manage. At the hearing she said that when she feels up to it she will accept an extra day’s work. However, when she recently completed 40 hours in a fortnight she found she was unable to cope and told her doctor so. She said she is struggling working 22 hours per fortnight and takes medication before, during and after work. She said that when she worked 30 hours per fortnight she had to take extra medication. She can manage a four-hour shift but not a six-hour shift.
46 She said she continues to experience constant daily neck pain, radiating into the left arm, and that she has headaches which last for days and which give her blurred vision. She takes six to ten Panadeine Forte tablets daily for her neck and arm pain.
47 In cross-examination she agreed she may be able to do administrative duties with restrictions up to 20 hours per week, and that if she did so she would earn at an hourly rate of around $18.00 per hour.
Medical evidence
48 In relation to hours of work, Mr Dooley and Mr O’Brien did not specify the number of hours the plaintiff was capable of working. Mr Bittar concluded in early 2009 that she could work a maximum of 15 to 18 hours per week. Dr Davison concluded in November 2009 that the plaintiff is capable of working her pre-injury hours, that is (having regard to her pre-injury history), around 20 hours per week. Mr Brownbill concluded in August 2010 that the plaintiff was presently working to her maximum capacity at 22 hours per fortnight.
49 I note the plaintiff’s evidence concerning the need for increased medication when she works, the rest breaks she needs, and the toll that her work takes on her. I prefer the opinion of Mr Brownbill to those of Mr Bittar and Dr Davison because it is informed by the plaintiff’s recent work experience.
50 I do not attach much weight to the vocational report of Konekt, upon which the defendant relies, for a number of reasons. Firstly, the authors did not have the reports of Mr Brownbill and Mr Bittar and the medical restrictions imposed by them.[28] Secondly, the authors do not proceed from the basis that the plaintiff is only fit for part-time work, which is the conclusion of all doctors. Many of the vocational options referred to are not available on a part-time basis. Thirdly, the report does not address the plaintiff’s need for breaks and allowances during working hours and the implication of these needs for the vocational options identified. Finally, I consider that Mr Dooley’s view that the plaintiff may be able to perform most tasks most of the time falls short of a conclusion that she has the physical capacity for the jobs identified.
Findings
[28] PCB 38, 58 & 69.
51 I consider on balance that the plaintiff is in suitable employment working the maximum number of hours of which she is capable, that is, on average 11 hours per week.
52 While at Karingal the plaintiff earned $19.59 per hour. She now earns at the range of $18.20 per hour which for 11 hours per week equates to $200.20 per week. This is well short of $446.65 per week. In order to earn $446.65 per week, the plaintiff would need to work 25.54 hours per week in her current employment. This exceeds the expectations and limits imposed by all doctors, even Dr Davison.
53 I turn to the positions identified by the defendant. Working as a receptionist, it would take the plaintiff 19.18 hours to earn $446.65. Working as a personal assistant, it would take the plaintiff 18.86 hours to earn $446.65. However, this number of hours exceeds the 15 to 18 hour limit imposed by Mr Bittar. In addition, the work involved is unlikely to be suitable for the plaintiff in the light of the amount of medication she takes, her slowness and blunted cognition, and the number of breaks she needs. The other vocational options (therapy aide, inquiry clerk or integration aide) would involve the plaintiff working more than 20 hours per week.
54 I am therefore satisfied that the loss of earning capacity consequences of the impairment of function of the cervical spine are at least very considerable when compared with other cases in the range of possible impairments of the cervical spine. I am also satisfied that the plaintiff has established a loss of earning capacity of 40 per cent or more. It follows that the plaintiff has made out the statutory requirements in relation to the loss of earning capacity consequences of his injury.
Conclusion
55 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the cervical spine suffered during the course of her employment with the defendant from 1 January 2005 to 2 February 2009. I reserve the question of costs.
See section 134AB(38)(e)(i) and (38)(f) of the Act.
0
6
0