Newman v Labour Power Recruitment Services
[2019] VCC 186
•1 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-18-03823
| SHARON LEE NEWMAN | Plaintiff |
| v | |
| LABOUR POWER RECRUITMENT SERVICESPTY LTD | Defendant |
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JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26,27,28 February 2019 | |
DATE OF JUDGMENT: | 1 March 2019 | |
CASE MAY BE CITED AS: | Newman v Labour Power Recruitment Services | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 186 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury- spinal impairment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:
Judgment: Leave granted to issue proceedings for the recovery of damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Garnham | Slater and Gordon |
| For the Defendant | Mr D Myers | Lander and Rogers |
HIS HONOUR:
1 Primarily leave is sought for a paragraph (a) spinal impairment but there is also a somewhat secondary claim under paragraph (c) for psychiatric injury. This fifty year old plaintiff suffered an admitted compensable injury to her back in August and September 2016 when making large boxes on pallets.
2 She is a lady who was raised in an orphanage as a ward of the State. She reached year ten at Blackburn Technical School but did not pass. From about age seventeen has worked in manual jobs apart from time off for children. These jobs have mostly been factory type packing, picking as well as some cleaning work. The position making boxes where she suffered this compensable injury was physically demanding work.[1] She has never been employed in office type or computer work.[2] Apart from playing video games on an IPad she has no real computer skills.
[1]Plaintiff’s Court Book(PCB)3-4
[2]Transcript(T)110
3 After being injured in 2016 at work she has gone on to have a great deal of conservative treatment including a number of medications and this was principally at her local Thompson Road Clinic in Cranbourne. She saw a number of general practitioners there.[3] Ms Newman had physiotherapy at that clinic.[4] Specialist pain management was also part of her treatment regime.[5] She had clear radiological evidence on MRI in November 2016 of L4-L5 disc pathology compressing the L5 nerve root which explained her back and leg symptoms.[6] For this she underwent spinal surgery on 31 January 2017. This was microdiscectomy and rhizolysis at the hands of the neurosurgeon, Mr Y Vellore.
[3]PCB26-27,28-30,30A-E
[4]PCB37-43
[5]PCB35-36
[6]PCB96
4 Unfortunately this operation was not successful. When she saw Mr Vellore again some eighteen months or so later he had the benefit of a second MRI taken in April 2018.[7] Sadly for her the lumbar disc and nerve root damage were just as bad, if not more extensive, than before her first surgery. He advised the option to “…redo right L4–L5 microdiscectomy and rhizolysis, as she was still symptomatic.”[8] Not surprisingly, in view of the first failed operation by Mr Vellore, she discussed the matter with her general practitioner and decided not to undergo any second operation. I accept she made a perfectly reasonable decision. The symptoms have remained.
[7]PCB98
[8]PCB33
5 “Serious injury” for pain and suffering was not conceded for the spinal impairment but it was not argued. This was both sensible and responsible in view of the evidence. The single discrete issue for the court was residual capacity for alternative suitable employment and this called into play some credit issues. In particular an IPAR vocational assessment report relied on by the defendant, which I will discuss later, suggested six suitable alternative jobs.[9] It was conceded she could not do her old unrestricted manual labour work. The question is really whether the plaintiff has proved a permanent loss of earning capacity of 40% or more.
[9]Defendant’s Court Book(DCB)50-51
6 Credit was challenged to some extent. She was cross-examined about a suggested attendance for medical treatment for a back complaint at some hospital about nine years ago. She could not remember that and this was no surprise. Even the suggestion itself was quite vague as to what establishment she was supposed to have attended.[10] Some records indicate she probably did attend with a back problem all those years ago but I am satisfied it was no more than a minor matter.[11] In particular I am satisfied the plaintiff was not suffering from any relevant back pain or impairment before suffering the subject injury making boxes in 2016. This is not an aggravation case and the defendant has not suggested it was.
[10]T62-68
[11]Exhibit 2
7 A good deal of video film was shown. It was taken on 7 February 2016, 11, 20, 28 April and 4,9,26,28 May 2017 as well as 20 April 2018.[12] Only a few comments are needed.
[12]Exhibit 1
8 Firstly these are merely brief snapshots of her over the years. Secondly there are many unexplained gaps in the film. The plaintiff is in the picture then suddenly the film jumps to her somewhere else without the full sequence of her movements when she was obviously still in view, so it is very selective. Thirdly and most importantly, it did not show any vigorous or strenuous activity nor any prolonged sitting, standing or driving. She carried some household items to and from a vehicle to premises but nothing that looked large or heavy. Fourthly there was nothing shown that was significantly inconsistent with her complaints. Fifthly on some occasions she walked very slowly, at times with a limp and sometimes got in or out of a car quite gingerly all consistent with some back problems. Sixthly I accept with respect to back pain “some days I’m a lot worse than others” so a few snapshots with gaps deserve only limited weight.[13] The videos did not damage credit.
[13]T102
9 Pivotal to this case was what I made of the plaintiff as a witness. It was a great advantage to both see and hear her give evidence over two days. The plaintiff needed a number of breaks due to discomfort. She altered posture often while in court alternating between standing and sitting. It was also very clear how poorly she followed paperwork even when it was put in front of her in court.
10 In the end I found her to be a genuine witness who did not exaggerate her symptoms. She is a rather limited lady when it came to memory and comprehension. On a number of occasions, and I will footnote a few, it was obvious she did not follow even straight forward questions and papers such that I had to enquire myself after hesitation and body language that indicated her difficulties.[14] But at all times she was attempting to tell the truth. I found her reliable. She was straightforward as to what her spinal impairment allowed her to do and what she could not do. Her credit was not impugned by cross-examination.
[14]T48-49,53,55,61-62,71,78-79,81-82,86-89,99-100,106
11 I do not accept that what she said to doctors and what they have recorded about using a walking stick and having a limp impacted on her credit when the videos were looked at. She swore in her affidavits that sometimes she used a stick and often limped.[15] She never said these were all the time. The videos showed a limp at times. I also do not accept the absence of affidavits from others is relevant. Hearing these applications every day sometimes affidavits are put in by family members and sometimes are not put in. Ms Howard has had a troubled domestic scene and the defendant’s argument here takes the matter no further.
[15]PCB6,11
12 I accept her evidence about constant back pain.[16] I also accept the very considerable limitations the back and referred leg pain result in with respect to a number of day to day activities. These include basic things like sitting, standing , lifting and walking in an unimpeded way that we usually just take for granted.[17] These activities are germane to any manual worker’s capacity to carry out any employment when looked at realistically. It needs to be remembered when considering any suggested capacity for work that she is still on Lyrica, the opiate based Palexia and 24 hours a day Norspan patches for back pain.[18]
[16]PCB6,10-11
[17]PCB6-7,10-13
[18]T47,PCB12
13 I accept what she said about her considerable pain realistically meaning “I won’t be able to work again.”[19] Life has not dealt her many aces and I am satisfied this reliable and well-motivated woman is the best judge of her capacity. She only lasted one day at a computer course and that was an indication of the extent of her back impairment.[20] For some unexplained reason IPAR, the rehabilitation group, issued her a certificate of completion for this six week course when she had only attended on one day.[21]
[19]PCB8
[20]PCB12,T57-59
[21]DCB71
14 The medical evidence does not need a lot of discussion particularly in view of the clear objective radiological evidence of disc damage having recurred with nerve root compression sufficient for a neurosurgeon to consider second major spinal surgery was an option. Nevertheless the treating general practitioners have provided a number of reports. In the most recent Dr Aung has said quite clearly that “She cannot perform in relation to employment or activities involving the following bending, lifting, twisting or stooping pushing, pulling or lifting, repetitive pushing, pulling or lifting.”[22]
[22]PCB30D
15 He thought future treatment including surgery may alter her capacity but I accept the evidence that he has agreed with her decision not to proceed with a second operation. He thought her incapacity will continue for the foreseeable future he also stated.
16 What is telling from the general practitioner is that as recently as 9 February 2019 he has issued the latest monthly Certificate of Capacity to WorkCover stating that she cannot bend, squat, kneel or lift and has “no capacity for employment”.[23] It is common ground between the parties that she has been on total incapacity weekly payments under the Act since she was injured uptil now.
[23]PCB30F-G
17 The treating neurosurgeon, Mr Vellore, has already been mentioned in the context of the recurrent disc prolapse and radiculopathy requiring “redo” surgery in the form of right L4/L5 microdiscectomy and rhizolysis. He thought “As a consequence of the physical injury and impairment to Sharon’s lower back, it is unlikely that she has the capacity to perform pre-injury duties. It is likely that this incapacity is going to last for the foreseeable future. As a consequence of the physical injury and impairment to Sharon’s lower back, it is likely that she is going to be precluded or restricted in relation to her social, domestic and recreational activities due to the significant amount of pain that she has. It is possible such capacity may continue for the foreseeable future”.[24]
[24]PCB34
18 He did not comment specifically on alternative employment but I consider he supports her being totally incapacitated for any work when he said “…it is likely that she would be precluded and restricted in relation to employment activities involving bending, lifting, twisting, stooping, pushing, pulling or lifting, repetitive pushing, pulling, or lifting.”[25] I accept the evidence of this treating surgeon as well as that of the treating general practitioner that for the foreseeable future this lady has suffered a total loss of earning capacity due to the compensable injury.
[25]PCB34
19 Dr G Buchanan came into the picture as a pain management specialist to treat her for her spinal problems. He has not seen her since about July 2017 so he is somewhat out of date but at that time he thought some further scanning might be appropriate. He ended rather pessimistically with “…but it does look like the pain condition is very entrenched and I would be somewhat pessimistic regarding the likelihood of further progress at this point in time”. [26]
[26]PCB36
20 In view of this strong body of treating doctors’ evidence and clear radiological pathology I am satisfied that the plaintiff has proved a permanent loss of earning capacity of 40% or more. I will only briefly refer to the medico-legal reports.
21 Dr J Slesenger, occupational physician, saw her twice. Both his reports are up to date as he saw her in February and in November 2018. His opinion was quite clear and he thought that her medication and the side effects from it would negatively impact on earning capacity in terms of attending on a consistent and reliable basis.[27] This statement is no more than common sense.
[27]PCB73
22 In the end he looked at her functional limitations, medications, age, limited computer skills, her past work experience, lack of occupational qualifications and her symptoms and he said she is “…unlikely to be able to return to work in a role for which she has suitable training and experience on a consistent and reliable basis.”[28] He was the only doctor who saw all the videos but they did not alter his opinion with respect to her earning capacity. I accept his opinion as supporting my finding that she has totally and permanently lost her earning capacity when looked at realistically.
[28]PCB73
23 Mr D Brownbill, neurosurgeon, saw Ms Howard in March 2018 and commented without viewing the videos. He thought her back and leg pain would continue indefinitely and said “…she is likely to be restricted in relation to employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a marked extent and I consider such incapacity will continue for the foreseeable future.[29] Given this worker’s limitations Mr Brownbill was realistically articulating a total loss of earning capacity that was permanent.
[29]PCB81
24 Dr A Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff in October 2018. He commented on a large number of possible future treatments. I am satisfied that she has undergone all of the treatment modalities that are reasonable in her case. This expert provided a very clear opinion that she could not go back to her pre-injury duties. In fact there is no debate in this case that she had a capacity for her old pre-injury type of work.
25 In regard to alternative suitable employment options he similarly felt that this was not a realistic option for her. He put very wide-ranging limitations on what she could do and not do. He saw this as a permanent condition.[30] He thought the opioid medication she was on would prevent her from any form of work and while I have not heard from him it seemed that the videos he was sent did not really change his opinion.[31]
[30]PCB92
[31]PCB93
26 The defendant tendered three reports from Dr Catherine Bones, occupational physician. She examined the worker in 2016 and twice in 2017. She also provided a letter in October 2017 commenting on the 2017 surveillance videos sent to her. Her opinions are now rather out of date and only of limited help in assessing work capacity now in 2019.
27 In November 2016 Dr Bones thought the plaintiff had no work capacity but thought a neurosurgeon should see her.[32] Then she assessed her again in March 2017 and still her opinion was that Ms Newman had “no current work capacity”.[33] A further examination in August 2017 led to Dr Bones noting how it was a “chronic low back pain” that had developed and the plaintiff was not even fit to drive due to foot drop.[34]
[32]DCB86
[33]DCB100
[34]DCB107,109
28 As to capacity she gloomily stated “In my clinical opinion, Ms Newman has not improved since March 2007 when I was of the opinion that she did not have a work capacity. As such, I did not identify anything today that would indicate that Ms Newman’s condition has changed to enable her to return to alternative duties. The barriers remain an inability to tolerate appropriate footwear, the risk of a trip in the workplace, the limited capacity for sitting and the reported side effects from medication”.[35]
[35]+DCB108
29 She then commented on the videos sent to her but did not see the worker again. In a short letter she noted some inconsistencies between the videos and what Dr Bones had seen in the examination room but she made the obvious comment that “… the video surveillance cannot be utilised to confirm the absence of pain.”[36] Dr Bones then commented that Ms Newman was capable of driving a car but she was still somewhat equivocal about work.
[36]DCB114
30 She said “I am unable to ascertain from the information provided whether or not Ms Newman has a capacity for pre-injury work. Certainly, the video surveillance suggests that Miss Newman does have a capacity for suitable work and may well have a capacity for alternative employment with an alternative employer. This is perhaps best addressed by a functional assessment”.[37]
[37]DCB115
31 Given her comment about film not being able to show pain and her other rather qualified comments, I do not read Dr Bones as saying the plaintiff has a capacity for suitable employment but rather saying no more than that “may” be the case. Dr Bones uses language like “may” and “suggests” which tends to support the view that the videos did not change her opinion although they made it somewhat less straightforward for her when commenting.[38]
[38]DCB114-115
32 Dr M Rahgozar, another occupational physician, saw the plaintiff at the request of the insurer in March 2018 and again in July 2018. He noted In March she was ingesting the powerful medications of Endone, Lyrica and Dothip for management of her pain as well as some mental health issues.[39] He also recorded that “Ms Newman does not have current work capacity”.[40] He thought a multi-disciplinary pain management program might improve her earning capacity. But it is really only expressed as a possibility in that she “…might gain capacity for alternative duties, subject to being able to avoid frequent bending and twisting of her back, lifting, pulling, and pushing more than 5-10kg.”[41]
[39]DCB5
[40]DCB7,8
[41]DCB8
33 On the second occasion he saw her he recorded there was no significant change in her symptoms and he noted her condition had been influenced “…by a high dose of opioid usage”.[42] He saw that a mental or psychological reaction had occurred on top of her physical pain and her predicament. On all the evidence I consider that development would be no surprise given the extent of her constant organic pain, the treatment she had undergone and the failure of her surgery.
[42]DCB15
34 Regarding work capacity he was somewhat guarded and said “Ms Newman has very limited current work capacity due to a combination of the chronic pain, multiple psychotropic medications that she is using and possibility of further procedures that are required for the management of her right-sided radiculopathy.”[43] He seemed to consider that basic administrative assistant duties, office cashier, enquiry clerk and light sales assistant duties were reasonable but interestingly he goes on to repeat again what reads as a very real qualification on this.
[43]DCB17
35 There are at least two problems with the adoption of these jobs suggestions by this doctor. Firstly there was no real analysis of what each of these IPAR jobs involved in terms of tasks and all the demands of what “suitable employment” required under the Act. Secondly it was never properly explained how on the one hand he says these jobs are suitable while on the other he accepts a number of very real complaints and restrictions the spinal impairment results in.
36 He recorded again the opinion I have already quoted from him in paragraph 33. The doctor then put some very real limitations on her work capacity due it seems to the ongoing mechanical dysfunction of the lumbosacral spine and right-sided radiculopathy so these are organically based problems and not mental health issues. These reports are not easy to follow.
37 I have not heard from this doctor but I read the following limitations he accepted as being physical restrictions namely …“she should avoid prolonged standing, walking, bending and twisting of her back, lifting, pulling, pushing, carrying more than 5kg to 10 kg when the load is close to the body and no more than 5kg when the load is away from the body”.[44] A proper reading of this doctor’s materials all but put this fifty year old lady who is unskilled, permanently out of the workforce when her restrictions are looked at realistically in view of all the requirements of the definition of “suitable employment”.
[44]DCB20
38 The defendant has also tendered some reports from a psychiatrist but in view of my findings as to the paragraph (a) organically based spinal impairment it is not necessary to deal with the reports of Associate Professor Damodaran.[45] Nor is it required that the paragraph (c) be commented on.
[45]DCB22-49
39 Turning to the alternative job suggestions IPAR described, I give very little weight to the IPAR documents tendered but will make a few further comments. They provided a certificate of completion of a computer course when she did not complete it at all.[46] IPAR did not even test her computer skills reporting “Ms Newman’s computer skills were not formally tested during assessment.”[47] It is clear to me that in this day and age, computer skills would be essential in almost every one of their six suggested jobs.[48] IPAR itself could not have summed this up better when it said at page 19 of its first report “IPAR note the prevalence of computer use in the modern workforce”.[49]
[46]DCB71
[47]DCB54
[48]DCB58,60, 62,64,67
[49]DCB67
40 A number of the suggested jobs require year 12 education. Others require prolonged sitting. I reject IPAR”s job suggestions and reports generally as they are not properly explained, contain inconsistencies, do not take into account Ms Newman’s obvious limitations nor the factors the definition of “suitable employment” demands.
41 I do not accept the defendant’s submission that this application fails on account of a lack of proof in regard to rehabilitation or retraining. [50] When all the evidence is considered including the constancy of symptoms, her limited education, work history, age, lack of computer skills and the width of her medical restrictions this suggestion is not well founded. I accept she is not a realistic candidate for any rehabilitation or retraining that would change what is a permanent loss of earning capacity.
[50]T128-129
42 I grant leave to the plaintiff to issue proceedings for the recovery of pecuniary loss damages as she has established a 40% or more permanent loss of earning capacity caused by her physical spinal impairment.
43 It follows that pain and suffering damages can also be claimed.
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