Oliver v Victorian WorkCover Authority
[2017] VCC 766
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-06378
| DESTRY OLIVER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 June 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Oliver v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 766 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – plaintiff’s participation in a rehabilitation program – retraining by the plaintiff – plaintiff’s suitability for alternative employment – analysis of the plaintiff’s credit – pain and suffering consequences conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Ryan Carlisle Thomas |
| For the Defendant | Mr G J Coldwell | Hall & Wilcox Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff commenced working for Monash Health in 2003. In his first affidavit sworn 25 August 2014, he described the work which he performed between 2003 and November 2011 which resulted in him suffering an injury to his lower back.[1]
[1]Plaintiff’s Court Book (“PCB”) 21-28
2 At the commencement of the hearing, the defendant announced that it conceded that the plaintiff had suffered a compensable injury during that period of employment, and that the pain and suffering consequences of the impairment of function resulting from the injury are serious. What that left for my consideration is whether the loss of earning capacity consequences are serious.
3 Mr J Valiotis of counsel appeared for the plaintiff, and Mr G Coldwell of counsel appeared for the defendant.
The proceeding
4 It is necessary to lay out some of the relevant history of the listing of this proceeding because of one of the submissions made by the defendant.
5 The proceeding came on for hearing before Judge Bowman on 29 February 2016. I was informed by the defendant that as a result of observations made by his Honour, the proceeding was adjourned because of the risk that the plaintiff would not be able to discharge the onus which he bears under s134AB(19)(b) and ss(38)(g) of the Accident Compensation Act 1985.
Background
6 The plaintiff obtained funding to undergo rehabilitation orchestrated by Dr Lim, consultant in rehabilitation and pain medicine, at the North Eastern Rehabilitation Centre in Ivanhoe. Dr Lim was called to give evidence. Under cross-examination, he said he saw the plaintiff on 12 February 2015, 6 August 2015, 23 February 2016 and 8 March 2016.
7 Dr Lim described the outpatient program as follows:
“ Right, so in the outpatient program it is a twice a week, eight-week program of knowledge and skills acquisition with the aim of teaching someone like Mr Oliver to become his own pain therapist and pain manager. We then have six team reviews over about five to six months to ensure that the lessons that he has learnt, he can effect for himself into real life as a part of the program and to maintain pain control, as well as normalise life. We would also then look at the ability for him to return to some form of meaningful occupation, ideally back with the original employer, ideally with the original duties. Less likely though, light duties, usually part-time and if not, voluntary work. People have to keep normalising life, getting involved with life, if they are going to maintain, gain control.”[2]
[2]Transcript 66-67
8 The plaintiff commenced the program and was about halfway through the initial eight-week part of the program when Dr Lim unilaterally brought it to an end. The reason why he did so is referred to in a letter written by Dr Lim to Dr Vallipuram, anaesthetist and pain medicine specialist, dated 8 March 2016.[3] The critical parts of that letter are as follows:
[3]PCB 89. Dr Vallipuram referred the plaintiff to Dr Lim
“… He remains very much pain-focused and as a result remain significantly disabled by his pain.
…
I have checked with his NERC pain psychologist in pain occupational therapist – unfortunately, Mr Oliver remains ‘treading water’. He has made no real progress in regards to accepting and adjusting to his persistent pain condition, which has been reflected by his pain occupational therapist providing him with aids to assist with his adaptation to pain rather than being able to assist him to increase his level of independent functioning in spite of the pain.
From my perspective, I see this as reflective of Mr Oliver still being court case-focused – unfortunately, the judge at a recent hearing has postponed his court case until July 2016 anticipating that he would have completed the NERC pain rehabilitation program, perhaps assuming that the program would have determined his prognosis. What I am contending that despite Mr Oliver’s stating that he is not (consciously) paying attention to the impending court case, I believe that he is (subconsciously) and that it is affecting his ability to accept/adjust to living with changed circumstances and utilising the NERC pain limitation program to his advantage as reflected by coping with pain better, sleeping better and increasing his function.
Therefore, I doubt if we can progress without the court case being completed which will reduce a very significant distraction and allow Mr Oliver to get on with his life.”[4]
(emphasis in original).
[4]PCB 89
9 Under cross-examination, Dr Lim expanded upon the reason for bringing the program to an end. He made it abundantly clear that until the plaintiff’s focus on this proceeding, and for that matter what proceeding might follow, is removed, then the plaintiff is unlikely to gain the benefits of the program.[5] He said that the reason why that is important is because he does not treat the injury or pathology, but the consequences of it. He considered that “the ultimate determinant” of success with the plaintiff’s rehabilitation program is not “medical or the physical, but the psychosocial component”.[6] He added that if the plaintiff is injury focused, then he would very quickly gravitate to the treatment component of the program and not the pain occupational therapy component.[7]
[5]Transcript 79
[6]Transcript 67
[7]Transcript 67-68
10 After carefully listening to the evidence of Dr Lim and reading the transcript of his evidence, together with his letter to Dr Vallipuram, I can see the rationale supporting Dr Lim’s decision to bring the program to an end.
11 The defendant submitted that nothing has changed since this proceeding first came on for hearing before Judge Bowman, because the plaintiff has not completed the rehabilitation program, which means that he cannot discharge the onus which he bears referred to in s134AB(19)(b) and ss(38)(g).
12 I disagree. I do not know what evidence was presented to Judge Bowman by the plaintiff and the defendant which led his Honour to make the observations which I have referred to above, but what is obvious is that his Honour did not have the letter from Dr Lim dated 8 March 2016, and Dr Lim’s evidence which was adduced before me.
13 I suspect, but I do not know, that the parties innocently led his Honour to believe that if the proceeding was adjourned, the plaintiff would proceed to complete the rehabilitation program. It is very clear to me that Dr Lim will not countenance allowing the plaintiff to undertake the rehabilitation program until this proceeding, and the proceeding which may follow it, is out of the way. Even at that point, there is no certainty that Dr Lim will allow the plaintiff to participate in a rehabilitation program. He will need to reassess him, and have his “team” reassess him.[8] If the reassessment is productive, then I assume that Dr Lim will allow the plaintiff to participate in a rehabilitation program, but there is no guarantee, but an expectation, that the plaintiff will obtain a benefit from the rehabilitation program.
[8]Transcript 79-80
14 The part of ss(19)(b) which is relevant to the submission made by the defendant is the onus borne by the plaintiff “of proving any inability to be retrained or rehabilitated …”.
15 I am satisfied that the plaintiff has proved that his inability to undertake Dr Lim’s rehabilitation program was not as a result of any conscious decision on his part, but rather as a result of the unilateral decision of Dr Lim. That decision created the plaintiff’s inability to complete the rehabilitation program, and to be considered as a candidate for a fresh rehabilitation program.
The Plaintiff’s medical treatment
16 The documents tendered by the parties from the court books are voluminous, containing a large amount of historical material, which neither counsel referred to except to make passing reference to some of it. I propose to follow the approach made by counsel, and to only refer to the essential parts of the medical reports of treating medical practitioners, and other documents which bear on the issue of his relevant medical treatment.
17 The first medical practitioner to treat the plaintiff was Dr Mendis, general practitioner. The plaintiff first saw him on 21 July 2005 for treatment for a lower back injury. His lengthy report dated 30 September 2014 is a digest of the more relevant occasions when the plaintiff saw him, and the treatment which he provided or recommended.[9]
[9]PCB 82-84
18 The plaintiff saw Dr Mendis on 7 November 2011 which was, of course, around the time when the plaintiff ceased working for the employer. The plaintiff complained of lower back pain which deteriorated to the point where Dr Mendis noted that he ceased working. By that time, Dr Mendis had referred the plaintiff to have a CT scan[10] and an MRI scan.[11]
[10]PCB 162
[11]PCB 163
19 Dr Mendis referred the plaintiff to Mr Hunt, orthopaedic surgeon. The plaintiff first saw Mr Hunt on 27 February 2012 and last saw him on 7 October 2013. Mr Hunt provided a number of reports which describe the treatment he provided the plaintiff and advice given to the plaintiff regarding the place of surgery.[12]
[12]The reports are dated 27 February 2012 at PCB 56-57; 2 April 2012 at PCB 58; 2 April 2012 at PCB 59; 12 March 2013 at PCB 60-64, and 7 October 2013 at PCB 65
20 At the time when the plaintiff saw Mr Hunt, the plaintiff was complaining of pain in his lower back with some radiation of pain into his left leg going down to his knee. Mr Hunt considered that the MRI scan demonstrated moderate canal stenosis with subarticular recess stenosis on the left side. It led Mr Hunt to discuss the prospect of undertaking a laminectomy procedure and a fusion at the L4-5 motion segment. At the time the plaintiff last saw Mr Hunt, it was apparent that he was not interested in undergoing surgery.
21 Dr Mendis referred the plaintiff to Mr Wilde, orthopaedic surgeon. The plaintiff first saw Mr Wilde on 12 June 2012 and last saw him on 9 July 2014. Mr Wilde also provided a number of reports which describe the treatment he provided the plaintiff and advice given to the plaintiff regarding the place of surgery.[13]
[13]The reports are dated 12 June 2012 at PCB 47-48; 27 February 2013 at PCB 49-53; 14 August 2013 at PCB 54 and 9 July 2014 at PCB 55
22 Mr Wilde reviewed the CT scan, the MRI scan, and also had the benefit of the results of CT-guided epidural injections undertaken on 4 July 2012 and on 16 August 2012. He advised the plaintiff that surgical treatment would not benefit him, but might worsen his situation.
23 Following Dr Lim bringing the rehabilitation program to an end, Dr Mendis referred the plaintiff to the Metro Pain Group, and eventually the plaintiff came under the care of Dr Mitchell, physician. By that stage, the plaintiff had undergone further radiological investigations including an MRI scan undertaken on 24 July 2015.[14] Dr Mitchell provided a number of medical reports which describe the treatment he provided the plaintiff.[15]
[14]PCB 167-168
[15]The reports are dated 18 July 2016 at PCB 90-91; 16 September 2016 at PCB 92-93; 25 November 2016 at PCB 94 and 20 January 2017 at PCB 95
24 The plaintiff first saw Dr Mitchell on 16 September 2016, at which time the plaintiff described shooting and electric-shock-type pain around his lower back with a burning pain in his left buttock, groin pain and painful numbness and sharp pain down his left leg to his left heel. He also complained of similar pain in his right leg and groin which was not as severe as the pain in his left leg. These complaints of pain are to be contrasted with the complaints of pain he made to Dr Mendis initially and to Mr Hunt and Mr Wilde. The complaints are of increased and more severe pain.
25 Dr Mitchell offered the plaintiff a treatment known as adhesiolysis. He did not explain what that treatment involves. It would appear that it involves the division of adhesions. He considered that it had a 30 per cent chance of making a significant difference. He considered that if it did not work, then the plaintiff should consider neuromodulation by the insertion of a spinal cord stimulator system. The plaintiff did not pursue either of those forms of treatment.
26 The plaintiff last saw Dr Mitchell on 20 January 2017. From his report dated 20 January 2017, it is clear that the plaintiff was undecided regarding the treatment offered by Dr Mitchell because he commenced that report by saying that he was not sure what answers the plaintiff was seeking from him.
27 The plaintiff returned to the care of Dr Mendis, who has treated the plaintiff conservatively. He referred him to Dr Bartlett, psychologist, who undertook sessions of psychotherapy. In addition to the treatment I have summarised above, it is also clear that the plaintiff had physiotherapy for some years provided by Mr Hutchinson between 30 January 2012 and 30 December 2013.[16]
[16]PCB 66-77
The Plaintiff’s re-training
28 The plaintiff completed a course to become qualified as a phlebotomist. The course ran between July and December 2013. The course trained the plaintiff in the collection of blood samples.[17]
[17]Transcript 31, 34 and 36
29 Under cross-examination, the plaintiff said that he completed the course, but had some difficulty with it; however, he did not explain what the difficulty was. He applied for positions using that qualification in 2014. There was a lapse in the plaintiff making any further applications until recently in 2017.[18] The plaintiff was interviewed for a position as an instrument technician through an employment agency, but was not successful.[19]
[18]Transcript 38 and 52
[19]Transcript 38-39
Capacity for suitable employment
30 The plaintiff was cross-examined at some length about his reasons for doing the course, attending an interview and applying for jobs, and whether, if he was offered a job, he would have taken it up. He said he would have accepted a job offer because he was desperate to find a job, but my impression from the whole of the cross-examination on this subject was that whether he would be able to maintain working in such a job depended upon what the job involved.[20]
[20]Transcript 32-40
31 The plaintiff was also cross-examined from a large body of vocational assessments of an organisation known as Resolve. The assessments contain references to the plaintiff’s work history, alleged transferable skills, and his prospects of linking up to the job market through, for example, networking with friends and acquaintances within the health industry.[21]
[21]DCB 157-175 and 180-277, but in particular the assessment at DCB 172-175
32 The defendant submitted that the plaintiff would not have obtained a qualification and applied for jobs unless he believed he had a capacity to return to suitable employment which he could exploit in jobs which are within his range of transferable skills and recently acquired training.
33 The submission is superficially attractive, but what it lacks is a road testing of the plaintiff. So often rehabilitation consultants recommend a return to work on a graduated basis with the purpose being to see how the individual copes with the demands of a particular job. That, indeed, is the case here, but more importantly, the plaintiff’s optimism must be seen in the context of the medical opinions, which I will shortly turn to and which demonstrate that he has no real capacity to return to any suitable employment.
34 Dr Mendis put the plaintiff’s level of disablement and his capacity to return to suitable employment in its proper context:
“Over the last three years, his lower back condition has gradually deteriorated. He is unable to sit or stand for long periods of time without change of posture and unable to walk more than 20 minutes without rest. Patient has constant lower back pain if he is sitting from (sic) more than 20 minutes, after which he needs to stand and move.
Patient attempted to return back to work on alternative duties by changing his profession and doing a course in Pathology collection. He was able to finish the course with great difficulty from his lower back condition which was severely aggravated because of the nature of his work, where he has to sit or stand for a long period of time.
I recommended Mr Oliver to work on light and restricted duties until April 2014 but now due to deterioration of his back problem he is unable to do any form of duties.”[22]
[22]PCB 88D
35 It is not an opinion which stands alone.
36 Mr Kossmann, orthopaedic surgeon, examined the plaintiff around June 2014, around December 2015 and around March 2017, and provided four reports dated 2 June 2014,[23] 10 December 2015,[24] 25 March 2016[25] and 10 March 2017.[26] Mr Kossmann was aware that the plaintiff had undertaken the retraining I have referred to, and he was provided with a large number of enclosures encompassing most of the medical reports in the court books.
[23]PCB 114-119. None of Mr Kossmann's reports bear the date of the examination
[24]PCB 120-126
[25]PCB 127-128
[26]PCB 129-136
37 Mr Kossmann considered the plaintiff’s work history and his retraining and concluded that the plaintiff no longer had a capacity to engage in any physical work, and in particular, he described the restrictions as an inability to push/pull heavy items, stand for long or walk for long distances on uneven ground and up and down stairs, on inclines and declines and climb up and down ladders or kneel or squat. He went so far as to describe the plaintiff’s incapacity for work as 100 per cent.
38 Dr Slesenger, specialist occupational physician, examined the plaintiff on 12 May 2017 and provided a report dated 29 May 2017.[27] He obtained a similar history to Mr Kossmann. After considering the relevant factors going to the plaintiff’s capacity to return to suitable employment, he concluded that the plaintiff was restricted in undertaking tasks of a similar nature referred to by Mr Kossmann. He concluded that he was unlikely to be able to return to work for which he has suitable training and experience on a consistent and reliable basis.
[27]PCB 148-161
39 Dr Sutcliffe, occupational physician, examined the plaintiff on 12 November 2015 and provided a report dated 19 February 2016.[28] Her report is rather stale given the effluxion of time between her examination of the plaintiff and the date of the hearing of this application; however, she considered that the plaintiff had no capacity to engage in his pre-injury work. She considered that it was possible that he could undertake the work of a pathology collector, but not on a full-time basis. She considered that he would be limited to working three hours per day, three days per week.
[28]PCB 137-147
40 Dr Yong, specialist occupational physician, examined the plaintiff for the defendant on 5 November 2014, 10 December 2015, 17 May 2016 and 30 May 2017. He provided five medical reports dated 5 November 2014,[29] 10 December 2015, [30] 25 January 2016,[31] 17 May 2016[32] and 30 May 2017.[33]
[29]DCB 115-127
[30]DCB 128-139
[31]DCB 139A-139H
[32]DCB 139T-139U
[33]DCB 139V-139HH
41 Dr Yong was made aware that the plaintiff was to undergo “a multidisciplinary pain management program”, which, of course, was the rehabilitation program orchestrated by Dr Lim. In the course of analysing the plaintiff’s injury and the extent to which it disabled him from undertaking suitable employment, Dr Yong was asked whether the plaintiff’s condition had stabilised. I interpret that question not to be whether the “injury” had stabilised, but stability in the sense of being able to participate in a return to work.
42 Dr Yong considered that the plaintiff needed to be encouraged to continue to participate in an activity-based recovery program with “the aim of this is to improve his condition”.[34] He then added something of significant importance, that the plaintiff’s prognosis was not unreasonable “if he is able to participate in an activity-based program”, and again, I take that to mean a rehabilitation program.
[34]DCB 139GG
43 My reading of Dr Yong’s analysis of the plaintiff’s capacity to return to suitable employment is that it is premised upon the plaintiff undertaking a rehabilitation program. It is in that context that he was of the opinion that the plaintiff should have similar limitations placed upon him which are referred to by Mr Kossmann and Dr Slesenger – avoiding repeated bending and twisting of the back, avoiding repeated firm pushing and pulling tasks, avoid lifting more than 3 kilograms on a repeated basis and the need to vary posture regularly between sitting, standing and walking.[35]
[35]DCB 139DD
44 Dr Yong was obviously optimistic that the plaintiff could return to suitable employment, and in his last report, he quoted from one of his previous reports in which he analysed the requirements of eight jobs to determine whether they were suitable. He considered that work as a medical technical officer, laboratory worker, medical receptionist, ward clerk, customer service, enquiry/admissions clerk, administrative clerk and gatehouse keeper were suitable subject to a better understanding of some of the tasks involved in some of those jobs.
45 There is a stark contrast and conflict in the conclusions reached by Dr Mendis, Mr Kossmann and Dr Slesenger when compared with the conclusions reached by Dr Yong. I have resolved that by preferring what I think is the most compelling opinion, and that is, the opinion of Dr Mendis, who has had a long and close association with the plaintiff and I think is probably in the best position to understand the deterioration in the plaintiff’s condition which has led him to conclude that the plaintiff has suffered a deterioration in his condition since 2014 to the extent that he no longer has a capacity for suitable employment. I am fortified in reaching that conclusion because of the opinions of Mr Kossmann and Dr Slesenger.
46 It is clear that I prefer the opinions I have just referred to over the opinion of Dr Yong, but there is an additional reason why I have made that preference. If I am correct in the conclusion I have reached that Dr Yong believes that a rehabilitation program is an important factor in the plaintiff returning to a capacity for suitable employment, then the likelihood of him being able to do so is now rendered remote by reason of the approach taken by Dr Lim which I have set out in some detail above.
The Plaintiff’s credit
47 I should deal with some other aspects of the cross-examination of the plaintiff, but only briefly. The plaintiff was cross-examined that he was angry with the employer which in some way played a role in the distance that was then created between he and his employer and in some way interfered with his motivation to do what was necessary to return to suitable employment. Additionally, he was cross-examined about the opinion of Dr Mendis, who certified him as being suitable for alternative duties, but later certified him as being unsuitable. There was a hint in the cross-examination that the plaintiff had something to do with Dr Mendis’ change of opinion.
48 There was no evidence adduced from the employer to suggest that there was anything in the allegations that he was angry, nor was Dr Mendis cross-examined to determine whether he changed his opinion because of some intervention by the plaintiff. In the circumstances, and after evaluating the plaintiff’s answers to that cross-examination, I am satisfied that the plaintiff was giving a truthful account that he was not angry and that the change in Dr Mendis’ opinion was driven by a proper medical analysis of the plaintiff’s medical condition in the context of any retained capacity for suitable employment.
Conclusion
49 It is for these reasons that I am satisfied that the plaintiff has no capacity to return to suitable employment. Therefore, I will grant the plaintiff leave to bring a proceeding for loss of earning capacity, and I do so after making a comparison with other cases in the range of possible impairments or losses, and having done so, I am satisfied that the plaintiff’s loss of earning capacity is “at least very considerable”.
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