Osowski v AAPC Properties Pty Ltd

[2012] VCC 1338

33

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-11-03810

Floradeliza Osowski

Plaintiff

v

AAPC Properties Pty Ltd

Victorian WorkCover Authority 

First Defendant

Second Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2012
DATE OF JUDGMENT:	27 September 2012
CASE MAY BE CITED AS:	Osowski v AAPC Properties Pty Ltd & Anor.
MEDIUM NEUTRAL CITATION:	[2012] VCC 1338

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – permanent impairment of a body function – injury to lumbar spine – loss of earning capacity and pain and suffering – residual work capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti with Mr R. Morrow	Clark Toop & Taylor Lawyers
For the First and  Second Defendants	Mr B. McKenzie	Thompsons Lawyers

HER HONOUR:

1 The plaintiff applies under s 134 AB (16)(b) of the Accident Compensation Act 1985 (the Act) for leave to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of an injury to the lumbar spine suffered during the course of her employment after 1 November 1999 until 2008, particularly after October 2001. The plaintiff migrated to Australia from the Philippines in June 1988 and worked as a hotel cleaner for the first defendant from 1988. She has limited English. Although she had intermittent back pain from her heavy repetitive work duties during the 1990’s, she was able to manage with little time off work. There was a change of hotel management and during the months before October 2001 she was required to clean a higher number of rooms as well as to work in the laundry. She was working 38 hours per week. She suffered severe back pain in October 2001 and was off work for a month, after which she returned to work on restricted duties and restricted hours, gradually building up to 15 hours per week. She worked those hours until March 2008 when she suffered a left leg injury unrelated to her work. In May 2009 she was certified fit to return to light duties and sought to return to her former employment, but no light duties were available. She has not worked since.

2       The plaintiff says that she suffered a work-related injury to the lumbar spine in the form of aggravation of pre-existing but largely asymptomatic degenerative changes resulting in a permanent impairment of the lumbar spine characterised by chronic low back pain with some referred pain into the legs, which resulted in a permanent incapacity for her pre-injury housekeeping work. She says that in 2009 she was fit to return to the modified duties she had been performing 15 hours per week after her lumbar spine injury, but that those duties were no longer available to her. In the circumstances, having regard to her physical inability to return to her pre-injury duties as a housemaid, in the light of her age (63), limited English and work experience exclusively in a manual occupation, she says that her work capacity has been totally extinguished.

3       The defendant  agrees that the plaintiff has suffered a work-related permanent impairment of the lumbar spine but says that no doctor has opined that she has no physical capacity for employment. Rather, the defendant says, the medical evidence is to the effect that as a result of her impairment she has a “light work back”. The defendant points to the absence of vocational material and says that the plaintiff has not discharged the onus she bears to establish the complete extinguishment of her work capacity. The defendant also contends that the material from the plaintiff’s treating doctors is inadequate and does not disclose the full picture in relation to the nature and extent of the plaintiff’s back injury.

4       Although Counsel for the plaintiff appeared to accept that his case was an all or nothing one on the question of loss of earning capacity, he nonetheless put forward figures to establish a permanent loss of earning capacity of 40% or more in the event of a finding that the plaintiff retained a residual capacity for suitable employment. The parties agreed that that the plaintiff’s without injury earnings were $516.07 gross per week or $26,836 gross per annum. Counsel for the plaintiff submitted that if it is found that the plaintiff has a capacity for suitable employment, her gross earnings would be either 15 hours per week earning $203.71 gross per week or $10,593.15 gross per annum or ten hours per week earning $135.80 gross per week or $7061.60 gross per annum. On either footing, it was submitted, the plaintiff would succeed in establishing the requisite permanent loss of earning capacity.

5       The defendant submitted that the plaintiff has a capacity for suitable employment on a full-time basis and based on the pay rate nominated by the plaintiff of $13.58 per hour and contended that the plaintiff has the capacity to work 38 hours per week earning $26,834 gross pa. 

6       The plaintiff must make out the requirement that she has a permanent loss of earning capacity of 40% or more. On the figures provided, if the plaintiff is found to have the capacity to earn $310 gross per week (60% of her without injury earnings) her claim for loss of earning capacity must fail.

The Hearing

7       The plaintiff gave evidence and was cross-examined. No other witnesses were called to give evidence. Each party tendered a court book. The defendant also tendered some extracts of video surveillance taken in April 2012.

8       I have considered all of the material relied upon by the parties.

Medical Evidence

9       There was strong consensus in the reports of treating doctors (Dr Chua in 2003, Dr Puno in 2008, Dr Arakji in 2011) and examining experts (Mr Shannon in May 2002, Mr Carey in August 2002, Mr Hooper in November 2002, Dr Homolka in August 2003, Mr Billett in July 2004, Mr Miller in 2005 and 2012, Mr Schofield in 2012, Mr Brownbill in 2011 and 2012, and Mr Dooley in August 2012) to the effect that the plaintiff has suffered work- related aggravation of pre-existing but largely asymptomatic degenerative disc changes resulting in a permanent impairment and a permanent incapacity for her pre-injury duties.

10      Dr Homolka opined in 2003 that the plaintiff was fit for full-time employment in occupations not involving heavy lifting or strain in excess of five kilograms, repetitive bending or remaining in one position for sustained periods of time, provided she could work at her own pace. Alternatively, it was recommended that she continue indefinitely to perform the restricted duties she was currently performing, with a gradual increase of hours to full time over the next six to eight months.[1]

[1]Defendant’s Court Book (DBC) 26.

11      In April 2003, Dr Chua, the plaintiff’s treating general practitioner, reportedthat that plaintiff had ongoing fluctuating symptoms of low back pain and had been on modified duties and multiple return to work plans.[2]  Dr Chua felt it was probable that she would only be able to do light work in the future. On 15 March 2005 and 16 May 2007, Dr Chua provided further reports in similar terms.[3] He noted that she worked five hours per day on Monday, Wednesday, Friday and Saturday on modified duties with restrictions.

[2]Plaintiff’s Court Book (PCB) p 14.

[3]PCB p 16 and 20.

12      In May 2005, Mr Miller opined that it was appropriate for the plaintiff to continue working her restricted duties and limited hours but that she would not be capable of returning to her pre-injury duties.[4]

[4]PCB p 38.

13      The more recent of the above reports are of more assistance in determining the extent, if any, of the plaintiff’s residual physical capacity for employment as at the date of the hearing.

14      Dr Puno wrote in December 2008 that the plaintiff could do light duties provided she did not climb ladders or do prolonged walking or bending nor any lifting more than five kilograms. He felt that she needed rest breaks between jobs so that she could exercise. He felt that some desk work would be suitable.[5]

[5]PCB p 83.

15      In April 2012, Mr Dooley opined that the plaintiff was fit to do the light duties she was undertaking at the time she suffered her unrelated leg injury.[6] 

[6]DCB p 35.

16      In May 2011 and April 2012, Mr Brownbill opined that the plaintiff was capable of working provided she did no heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He did not impose a limit on the hours she could work.  He felt that the hours she could work would be dictated by her response to such work but that it was likely that the hours would need to be reduced.[7]  

[7]PCB p 32.

17      In June 2012, Mr Miller opined that the plaintiff was capable of working modified duties of the kind she was doing in 2008, but only for ten hours per week and only provided there was no repetitive bending, lifting or lifting more than five kilograms. She would need to regularly shift her posture.[8]  

[8]PCB p 52.

18      In June and August 2012, Mr Schofield opined that the plaintiff would be permanently incapacitated for her pre-injury duties and that her remaining work capacity would be limited by her chronic back pain.[9]

[9]PCB pp 54-65.

19      I note that the plaintiff’s report of recovery from the left leg injury was made consistently to the surgeons who examined her in 2012 (Mr Miller, Mr Dooley and Mr Brownbill) and was consistent with the certification that she was fit to return to modified duties in January 2009, which she did.

20      The handwritten report of Dr Arakji dated 2 April 2012 was in the following terms:

In addition to my previous letter dated 2-6-2011, I saw Ms Osowski on 4 occasions, the latest presentation was on 25-10-2011 for a repeat of Celebrex for her back pains.

As previously noted Ms Osowski had ongoing back pains related to her work. The pains were radiating down to the side of the back & she had difficulty bending down. Her pains have been present even before her first attendance on 21-3-2003 & are continuing.

Her back pains are affecting her movements & restricting her daily activities & reducing her capacity to work. I believe her prognosis will not be different from her current situation. She will continue to have the backaches & will be needing the analgesics.[10]

[10]PCB p 25.

Plaintiff’s evidence

21      In her most recent affidavit, the plaintiff stated said that she had been medically cleared to return to her modified duties in January 2009 after her left leg had healed.[11] Unfortunately, she was told there were no light duties available.  She continues to receive the disability pension. She lives with her daughter and her son. Her daughter has a seven month-old baby who also lives with them. The plaintiff continues to take Celebrex and Panadol regularly for her back pain. She also uses Deep Heat. She has recently had some physiotherapy. Despite treatment, she suffers chronic low back pain which is worsened by walking, sitting, standing and bending. Sometimes she has right leg pain which radiates into the knee. She is restricted with cooking and with household activities involving bending. She can drive locally for short distances. She rarely gardens any more nor vacuums. The back pain is severe at times and will generally ease if she is inactive. She occasionally sees friends or goes shopping with her children. She personally pays for five sessions of physiotherapy each year.

[11]PCB pp 6-8.

22      The defendant tendered extracts of surveillance taken on 3, 4, 5 April, 26 and 29 April 2012 (a total of 31 minutes out of a total of 65.5 hour of surveillance taken). In the surveillance footage, the plaintiff is observed, inter alia, closing the boot of her car, driving, helping a child into a booster seat in the back seat, lifting a chair into the boot of the car, bending, walking, sitting in the car and eating an ice cream. It was put to the plaintiff in cross-examination that these activities appeared to be performed without restriction or difficulty. The plaintiff said that she always has back pain and that she does not drive long distances. When it was suggested that in some of the surveillance she drove for an hour, she stated that everywhere she goes she has a sore back. 

23      At the hearing, the plaintiff also said that when she returned to work on modified duties she was told by the rehabilitation provider that she could only work 15 hours per week and that is what she did. Her treating general practitioner from 1993 to 2010 when he retired, was Dr Chua, from Civic Parade Medical Centre. She said she still attends that practice because her records are there. She also sees Dr Arakji at the Mason St Medical Centre and Dr Puno at the Primary Health Care clinic at Werribee Plaza. She obtained prescriptions from Dr Puno for medication for her left knee which she took until after her knee surgery, but continues to obtain prescriptions for Celebrex and other medication for her back from Dr Arakji. The plaintiff denied that Dr Puno wanted her to eventually return to full-time work when giving clearance for a return to work on modified duties starting part-time hours.

24      The plaintiff said that she no longer had any problems with her left knee and was taking no medication for it. She said that she has constant back pain and takes one Celebrex tablet each morning, as well as a number of Panadol at least once per day and again before bed at night. If she cannot sleep she takes a further Celebrex.

Legal principles

25 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function, and that the 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, fairly described as being more than significant or marked and as being at least very considerable.[12] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[13] 

[12]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).

[13]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].

26      On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[14] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[15]

[14]Fleming v Hutchinson (1991) 66 ALJR 211.

[15]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].

27      The whole of the evidence before the court should be considered, not just the medical evidence.[16]

[16]Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].

28      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% or more.

29      Section 134AB(38)(g) of the Act requires the plaintiff to establish that she would not, given her capacity for suitable employment[17] after the injury and, where applicable, the reasonableness of her attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in her earning more than 60% of her earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.

[17]The definition of “suitable employment” was amended by s 74(3) of the Act. It means employment in work for which the worker is suited regardless of whether the work or the employment is available or whether the work or the employment is of a type or nature that is generally available in the employment market.

30      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 the application.[18]

[18]See Advanced Wire & Cable Pty Ltdand Victorian WorkCover Authority [2009] VSCA 170, [63]; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111.

Findings and reasons

31      I found the plaintiff to be a straightforward witness. I note that none of the defendant’s medico-legal examiners (Mr Billet, Mr Dooley, Mr Shannon, Mr Carey and Dr Homolka) noted any abnormal findings on examination nor any exaggeration by the plaintiff of her symptoms. No examining or treating doctor was invited to comment on whether the plaintiff’s presentation on the video surveillance was consistent with her presentation to them or with her complaints of pain and restriction. I accept the plaintiff’s uncontradicted evidence that she suffers constant back pain and do not draw any inferences adverse to her from the limited activities shown in the short periods of time recorded.

32      I accept that unsuccessful efforts were made by the plaintiff’s solicitor to obtain an up to date medical report from Dr Puno’s practice but do not consider that the absence of such a report is fatal to the plaintiff’s case. I accept the defendant’s point that there is little recent evidence from treating doctors about the recent situation in relation to her back and that there have been many attendances by the plaintiff on Dr Kamahl (who took over from Dr Chua) between August 2007 and October 2011 for matters not related to her back.

33      However, I also note the consultation and prescription records from Primary Health Care clinic which show visits during which the plaintiff complained of back pain on at least two occasions in 2006, eight occasions in 2007, two occasions in 2008, four occasions in 2009, once in 2010 and twice in 2011. She was prescribed anti-inflammatories and analgesics including Panadeine Forte, Celebrex, Diazepam, Mobic, Prexig and Panamax. An entry on 20 March 2011 noted a diagnosis of chronic back pain. I consider that the prescriptions are consistent with the plaintiff’s account of the medication she has been taking for her back pain and consistent with what medico-legal examiners reported being told by the plaintiff.

34      I consider that the plaintiff’s attempt to return to made-up modified duties after her left leg injury healed was an attempt to return to the only work she knows and the only work for which she is suited having regard to her education, age, skill level, level of English and work history. Her work as a housemaid is the only work she has ever done in this country. The restrictions imposed upon her by the various experts as outlined above are considerable. I note that no-one has been able to propose a job complying with these restrictions for which the plaintiff is suited. Even if one accepts that the plaintiff may be physically capable of doing light work with substantial restrictions for up to ten hours per week (according to the most recent assessment, by Mr Miller, in June 2012), that is not the end of the matter. Section 5 of the Act provides that determination of “suitable employment” requires consideration not just of the worker’s incapacity but also, relevantly, of the worker’s age, education, skills and work experience.[19] The evidence relevant to these considerations is evidence concerning the competencies required for any proposed positions and evidence concerning the plaintiff’s English language skills, as well as her education, skills and work experience. In this case, no suitable employment options have been identified or proposed. The plaintiff may have the physical capacity to work in light duties with substantial restrictions up to ten hours per week but, given her background, skill level, age, work experience and limited English, I am satisfied that she permanently has no work capacity for suitable employment.

[19]See sub-paragraph (a)(iii) of the definition of “suitable employment” in s 5 of the Act.

35      Alternatively, if even if I were to find that, on the most recent expert evidence, (that of Mr Miller in 2012), as at the date of the hearing the plaintiff is capable of working ten hours per week in suitable employment, the plaintiff would succeed on the figures in establishing the requisite loss of earning capacity.

36      It follows that I am satisfied that the loss of earning capacity consequences of her impairment are more than considerable when compared with other cases in the range of permanent impairments, and that the plaintiff has made out the requirement to establish a permanent loss of earning capacity of 40 per cent or more. As leave is granted on this basis, it would ordinarily be unnecessary for me to deal with the pain and suffering limb of the application. However,  out of an abundance of caution,[20] I make the following findings in relation to pain and suffering.

[20]In this regard, I note the observations of the Court of Appeal in Robert Pisano v Precision Solid Plasterers Pty Ltd and Victorian WorkCover Authority [2012] VSCA 226 at [40].

37      I accept the plaintiff’s uncontradicted evidence as to the pain and restrictions she suffers as a result of her work-related chronic back pain. The pain and suffering consequences relied on by the plaintiff are outlined in paragraph 21 above. As noted above, no treating or examining doctors found any exaggeration or non-organic aspect to her presentation. The daily pain suffered by the plaintiff requires her to take prescription anti-inflammatories and other analgesics and to undergo physiotherapy when she can afford it. The pain is exacerbated by simple activities such as walking, sitting and standing. The pain interferes with her ability to cook and do household activities, and interferes with her ability to get to sleep.

38      In all the circumstances, I am satisfied that the pain and suffering consequences of the impairment of  the plaintiff’s lumbar spine impairment are more than considerable with compared with other cases in the range of impairments of the lumbar spine.

Conclusion

39      Leave is granted to the plaintiff to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the lumbar spine suffered after 1 November 1999 until 2008, particularly after October 2001. I reserve the question of costs.