O'Brien v CCA Bayswater

[2020] VCC 1711

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-16-02037

Cassandra O'Brien	Plaintiff
v
CCA Bayswater Pty Ltd	Defendant

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JUDGE:	Judge Tran
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2020
DATE OF JUDGMENT:	5 November 2020
CASE MAY BE CITED AS:	O’Brien v CCA Bayswater
MEDIUM NEUTRAL CITATION:	[2020] VCC 1711

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION 

Catchwords:             Serious injury application – neck pain – spinal cord stimulator controlling or reducing symptoms – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985 (Vic), s134AB(17) and s134AB(38)

Cases Cited:Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35

Judgment:                Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis with Ms C Moore	Shine Lawyers
For the Defendant	Mr A Middleton	Russell Kennedy

HER HONOUR:

1       On 31 August 2007, Ms O’Brien was working on the bottled water line at the Coca Cola Amatil factory in Bayswater. Whilst lifting a heavy carton and straightening up from a crouching position, she hit the crown of her head on the overhead steel structure of a machine. She felt immediate severe pain in her neck and shortly thereafter developed a severe headache.

2       Over the years since her injury in 2007, Ms O’Brien has struggled with debilitating neck pain. She has seen many medical practitioners, including a neurosurgeon, at least two pain specialists, a consultant physician in rehabilitation medication, a psychologist and an occupational therapist. She has completed two pain management programs at the Victorian Rehabilitation Centre. Since February 2012, she has been on a disability pension with some periods of part time work. In 2016, she commenced these proceedings seeking leave to commence proceedings for damages. She continued to suffer what she described as “unremitting”[1] and “constant”[2] neck pain.

[1]PCB 12 at [1].

[2]PCB 18 at [8].

3       That is, until last year. On 25 June 2019, Ms O’Brien commenced a trial of a spinal cord stimulator. She immediately noticed a significant reduction in neck pain and in the pain, numbness and spasms in her hands. As a result of the success of the trial, a spinal cord stimulator was surgically inserted on 15 October 2019. The spinal cord stimulator has greatly reduced her pain. She still has flare-ups but they are not “as bad as it was before”.[3] Her levels of chronic ongoing pain when she is not experiencing a flare-up are greatly reduced, as much as 70-80% or even 90%.[4]

[3]PCB 23 at [14].

[4]T28, L15-21; T30, L1.

4 It is in this context that, over 13 years after her initial injury, I must decide Ms O’Brien’s application for leave to bring proceedings for damages under s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“Act”).

5 The defendant accepts that Ms O’Brien is suffering from a permanent serious impairment of a body function within the meaning of paragraph (a) of the definition of serious injury in s134AB(37) of the Act. The only issue in dispute is whether Ms O’Brien satisfies the requirements of serious injury with respect to loss of earning capacity. In particular, the defendant submits that Ms O’Brien’s injury has not yet stabilised and that I should not be satisfied that Ms O’Brien will “continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more”.[5]

[5]Section 134AB(38)(e)(ii) of the Accident Compensation Act 1985 (Vic).

6       For the reasons which follow, I am satisfied that the injury suffered by Ms O’Brien on 31 August 2007 satisfies the requirements of serious injury with respect to loss of earning capacity.

7       First, in my view, Ms O’Brien was an entirely truthful witness. She listened carefully to the questions and responded candidly in relation to both her symptoms of pain and in relation to the improvements she had experienced as a result of the spinal cord stimulator. I saw no suggestion that she exaggerated her symptoms. To the contrary, she frankly admitted to improvements in her symptoms. It is true that she was able to sit through 1.5 hours of cross-examination without obvious signs of pain. However, she appeared tense; and showed genuine relief when I said she could move from her seated position at the conclusion of her cross-examination. In any event, being able to sit for 1.5 hours is not inconsistent with her evidence that she could work four-hour shifts. I also see no inconsistency in her evidence that she was able to occasionally undertake volunteer work for Riding for the Disabled or the local Foodbank.

8       Ms O’Brien said that “15 hours per week”[6] of employment was about right. She also referred to a capacity to work 18-20 hours per week.[7] Any more than that and her pain was aggravated. For example, she worked 24 hours in the week before the hearing and said as result she “was in excruciating pain and I have been very limited in what I can do this week.”  I accept this evidence.

[6]T38, L25-T39, L14.

[7]T37, L15-25.

9       Before the implantation of the spinal cord stimulator, Ms O’Brien was able to work 15 hours per week in around 2015 or 2016 as a dole supervisor[8] and 18 hours per week at Serco in late 2018.[9] However, it does not necessarily follow from the effectiveness of the spinal cord stimulator at reducing Ms O’Brien’s pain levels, that she will be able to work longer hours. There is no doubt that qualitatively Ms O’Brien’s life has improved dramatically with the implantation of the spinal cord stimulator. However, she continues to suffer from flare-ups of severe pain which are brought on by activity, particularly if she works too much.

[8]PCB 21 at [4]-[6].

[9]PCB 22 at [10].

10      I also accept that it is her neck pain (and the risk of a flare-up from increased working hours), which is the predominant reason for the limitations on her working hours, rather than the migraines or absence seizures.[10]

[10]T31, L25-27.

11      Secondly, I accept the evidence of her treating pain specialist, Dr Nicholas Christelis. He implanted the spinal cord stimulator. He has seen her in person on at least 14 occasions and, since the COVID-19 restrictions, has also reviewed her over the telephone.

12      Dr Christelis’ evidence is that Ms O’Brien suffers from an ongoing chronic pain disease. The spinal cord stimulator assists with the control or reduction of that pain, but it is not a cure. Her symptoms may fluctuate over the years with aging, habituation and other factors. It is possible that her condition will improve. However, Dr Christelis does not put this as higher than a possibility. It is also possible that her symptoms will worsen, for example due to habituation. In a report dated 30 April 2020, Dr Christelis said simply, “Currently Cassandra’s condition is stable”.[11] As to Ms O’Brien’s capacity to work, he recommended that the opinion of an occupational physician be sought.

[11]PCB 34.

13      Thirdly, I also accept the evidence of Mr Mohammed Awad, who was a neurologist who saw Ms O’Brien on three occasions in his capacity as a medico-legal expert retained by Ms O’Brien. Mr Awad suggested that Ms O’Brien investigate spinal cord stimulators again, and this is what prompted her to return to Dr Christelis and ultimately have the spinal cord stimulator implanted. In his final report on 23 April 2020, Mr Awad said that Ms O’Brien’s injuries seemed to have stabilised and “certainly her condition at the moment with background pain of 2/10 with flare-ups is likely to be the status quo for the foreseeable future”.[12] He goes on to say that she will always have the capacity for part-time work, at best, and that he is “not so sure as to whether she will be able to manage too much more” than 18 hours a week, although this “will remain to be seen”.[13]

[12]PCB 70.

[13]PCB 70.

14      Thirdly, I do not find reports from treating or medico-legal practitioners, which pre-date the implantation of a spinal cord stimulator, of any real assistance in determining the issue in dispute.

15      Fourthly, I do not find the reports of either of Ms O’Brien’s general practitioners of a great deal of assistance. It is unclear what expertise they had to express views as to Ms O’Brien’s prognosis, or the basis for any opinions they did express. It seemed to me both were largely reporting what they had been told either by specialists or Ms O’Brien. In any event, statements such as that of Dr William Longworth in his report of 11 June 2020 that, “Depending on her situation now, I guess, if she is doing well, still a graduated increase in hours would be feasible”, do not provide clear evidence one way or the other.[14]

[14]PCB 47.

16      Fifthly, I do not accept the views expressed by the Occupational Rehabilitation Consultant, Mr Paul Hartley, in relation to Ms O’Brien’s limited capacities for retraining and employability. His views are based at least in part on an assumption that Ms O’Brien was currently suffering from cognitive difficulties and issues with concentration arising from a mild acquired brain injury. Lead counsel for Ms O’Brien accepted that this was not the case. I do, however, accept Mr Hartley’s evidence as to the various relevant roles and salaries, which were conveniently summarised by lead counsel for Ms O’Brien.

17      Sixthly, I prefer the evidence of Dr Joseph Slesenger, who was the occupational physician called by Ms O’Brien, over the evidence of Dr Mary Wyatt, who was the occupational physician called by the defendant. Dr Slesenger had the advantage of examining Ms O’Brien twice in person on 6 July 2017 and 6 August 2020. Due to COVID-19 restrictions, Dr Wyatt was only able to examine Ms O’Brien by video-conference and did so only once, on 23 April 2020. As a result, she could not conduct a neurological examination. In her words, “[t]here was an absence of non-objective findings in the limited examination conducted”.[15] Dr Slesenger also had the benefit of considering more recent aggravations of Ms O’Brien’s symptoms, as his final assessment of Ms O’Brien was conducted on 6 August 2020.[16]

[15]DCB 78.

[16]PCB 258.

18      Despite her limited examination, Dr Wyatt stated that she expected Ms O’Brien to be able to get up to working 30 hours of week and that there was a 50% chance that she would be able to get back to full time work. It is not entirely clear what Dr Wyatt’s opinion is based upon, other than Ms O’Brien’s own reports of the improvement of her symptoms with the spinal implantation and Ms O’Brien’s (then) hope to increase her hours to at least 30 hours per week. Dr Slesenger, on the other hand, concluded that the restrictions he outlined (up to 12 hours per week on a regular basis) “will need to continue into the foreseeable future”.[17] He explains that his opinion is based on “the length of Ms O’Brien’s impairment and disability, her limited response to treatment to date and the deterioration in her symptoms due to recent changes in her workplace activities…”.[18] Dr Slesenger stated in his report of 18 August 2020 that Ms O’Brien’s condition “has not stabilised”[19] (because, as he goes on to explain, he is cautious as to whether she will continue to benefit from the spinal cord stimulator into the foreseeable future). However, this does not detract from the view he expressed in both the 18 August 2020 report[20] and the 3 September 2020 report[21] that the restrictions he outlined would continue into the foreseeable future.

[17]PCB 272 at point 2.

[18]PCB 272 at point 2.

[19]PCB 264 at point 6.

[20]PCB 266, at point 9(d).

[21]PCB 272 at point 2.

19      Finally, having considered all of the above, I am satisfied that Ms O’Brien suffers from a chronic and permanent pain disorder which features persistent low level pain with flare-ups of severe pain if Ms O’Brien is too active or works for too many hours in a day or a week. This pain is controlled and reduced by the spinal cord stimulator, but it is not cured. Ongoing adjustment to the spinal cord stimulator is possible and can assist if and when its effectiveness reduces, as has already occurred.[22] Ms O’Brien’s pain is also controlled and reduced by regular pain medication, including daily Panadol Osteo as well as Baclofen, Lyrica and an anti-histamine (as needed) and a Visadis patch on rare occasions. However, medication such as Lyrica and Baclofen makes her drowsy.[23]

[22]T40, L2-6.

[23]T39, L26-30.

20      The severity and frequency of her flare-ups are likely to fluctuate. It is possible things will improve in the future.[24] It is also possible that they will worsen. However, it is now a year since the spinal cord stimulator was implanted and Ms O’Brien has not been able to work more than an 18-20 hour week without severe consequences in terms of pain, despite what I accept is her genuine desire and attempts to do so. Her average weekly hours have been considerably less than this. Dr Slesenger’s evidence was that for the foreseeable future she would be restricted to working up to 12 hours per week on a regular basis.

[24]See e.g.: PCB 70; PCB 233; DCB 125.

21      It is not necessary to exclude all uncertainty.[25] The fact that there is the possibility of future improvement in Ms O’Brien’s symptoms does not prevent me from being satisfied that Ms O’Brien has suffered a permanent loss of earning capacity. Twelve months after implantation of the spinal cord stimulator, it is apparent that for the foreseeable future Ms O’Brien’s work hours will remain heavily restricted. Even allowing for the possibility of some future improvement, I am satisfied on the balance of probabilities that Ms O’Brien will continue permanently to be unable to average more than 20 hours per week in administrative (non-physical) work.

[25]Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, particularly at [55]; see also Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35.

22      Her current income varies between $20.75 and $34.42 depending on loading. Assuming she was able to work as a recruitment consultant and earn $35.43 per hour (the highest rate suggested in the IPAR report relied upon by the defendant) this would put her maximum income earning capacity at $708.60 per week. The parties agreed that Ms O’Brien’s without injury capacity was $1,440.45 per week. Sixty per cent of $1,440.45 is $864. Accordingly, I am satisfied that Ms O’Brien will continue permanently to have a loss of earning capacity, which will be productive of financial loss of 40 per cent or more.

23      I did not understand it to be disputed that the other elements of serious injury were satisfied with respect to loss of earning capacity. For completeness, in light of my findings above:

a.    I am satisfied that the consequences of Ms O’Brien’s injury are serious with respect to loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of body function and may fairly be described as being more than significant or marked and at least very considerable; and

b.    I am satisfied that Ms O’Brien has a current loss of earning capacity of 40 per cent or more. Her agreed pre-injury income was $52,000 per year ($1,000 per week). I am satisfied that the income she is currently earning or is currently capable of earning in suitable employment is no more than $26,000 (average of $500 per week). [26]

[26]Her most recent payslips showed a highly fluctuating income, which is consistent with her evidence that her capacity to work depends upon her symptoms. However, her average income since January 2020 is less than $400 per week.

24 I certify that Ms O’Brien is suffering a serious injury and has satisfied both s134AB(38)(b)(i) of the Act with respect to pain and suffering and s134AB(38)(b)(ii) of the Act with respect to loss of earning capacity. I will grant Ms O’Brien leave to bring proceedings for damages. I will hear from the parties as to the appropriate orders to be made.

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Certificate

I certify that these 8 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 5 November 2020.

Dated: 5 November 2020

Susan Thomas

Associate to her Honour Judge Tran