Padgham v Epworth Foundation
[2012] VCC 1867
•19 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05349
| ANDREW PADGHAM | Plaintiff |
| v | |
| EPWORTH FOUNDATION | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 November 2012 | |
DATE OF JUDGMENT: | 19 November 2012 | |
CASE MAY BE CITED AS: | Padgham v Epworth Foundation | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1867 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lumbar spine – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Guppy v VWA [2010] VSCA 164
Judgment: Application granted for the plaintiff to bring common law proceedings in respect of pain and suffering and loss of earning capacity damages in respect of injuries suffered in the course of employment with the defendant on or about 10 July 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O'Dwyer SC with Mr J F Goldberg | Slater & Gordon |
| For the Defendant | Ms R L Kaye | Hall & Wilcox |
HER HONOUR:
1 By Originating Motion dated 8 November, 2011, filed electronically on
10 November, 2011, the plaintiff, Andrew Padgham, seeks leave under
s134AB of the Accident Compensation Act 1985 (“the Act”) to issue common law proceedings for the recovery of damages against the defendant, the Epworth Foundation, the plaintiff’s former employer.
2 It is common ground that the plaintiff worked as a cleaner for the defendant between 16 May 2003 and 5 October 2009. During the period of his employment, the plaintiff did various cleaning duties, including lifting heavy buckets. On 10 July 2008, after lifting buckets at work, the plaintiff developed pain in his back. He attended the Emergency Department at Epworth Hospital, where scans were arranged. He then attended his local general practitioner, and was ultimately referred to an orthopaedic surgeon. The plaintiff returned to work following his injury. He was given light duties and modified hours, which he continued to do until the date of his dismissal. I am satisfied that his dismissal had nothing to do with the performance of his work, but was related to another matter.
3 It is common ground that the plaintiff indeed suffered injury to his lumbar spine as a consequence of his employment with the defendant.
4 The particulars of injury claimed are:
(a) injury to the lumbar spine;
(b) injury to the lumbar discs, in particular at L4-5 and L5-S1;
(c) aggravation of lumbar disc degeneration;
(d) sciatic pain; and
(e) anxiety and depression as a consequence of injury and effect of injury.
5 The question of the plaintiff’s mental injury was not pressed.
6 The real issues in the case are:
· whether the plaintiff's injury is “serious” when compared to other cases “within the range” of serious injuries;
· whether the plaintiff has established the requisite threshold to succeed on his claim for economic loss; and
· whether the plaintiff's condition is “permanent”.
The Hearing
7 The hearing commenced on 15 November 2012 and was completed the next day.
8 Mr O’Dwyer, Senior Counsel, appeared with Mr Goldberg on behalf of the plaintiff. Ms R Kaye appeared on behalf of the defendant.
Background
9 The plaintiff was born in June 1963 and is aged forty-nine. He is married and has four children, two adult and two under the age of eighteen.
10 The plaintiff was educated to Year 8. He left school aged fifteen. He then obtained and successfully completed a first-class sheet metal apprenticeship. In 2006, he gained a Certificate III as a personal services attendant whilst in the employ of the defendant.
11 So far as his work history is concerned, the plaintiff first attempted to gain work in the accountancy field but he was not suitable to do it. Hence, he commenced and completed his sheet metal apprenticeship, working for a total of eight years as a sheet metal apprentice and then tradesman.
12 Thereafter, for nine years, the plaintiff worked as a first-class sheet metal tradesman and he worked as an assembler/sheet metal worker through a relative, as I understand it. Then he commenced his employment with the defendant as a storeman and cleaner.
The Plaintiff’s Case
13 The plaintiff has sworn two affidavits, both of which were tendered as
Exhibits A and B respectively. The first affidavit was sworn on 30 June 2011 and is found at Plaintiff’s Court Book[1] 38-44. The second affidavit, Exhibit B, was sworn on 16 October 2012 and is found at PCB 45-47. The plaintiff gave sworn evidence and was cross-examined extensively. No other oral evidence was given.
[1]“PCB”
14 In addition to the affidavits sworn by the plaintiff, the following exhibits were tendered:
C Worker's Injury Claim Form completed by the plaintiff
(Defendant’s Court Book[2] pages 62-63)
D X-ray lumbar spine report (PCB 48)
E CT lumbar spine report (PCB 49)
F MRI lumbar spine report (PCB 50-51)
G CT lumbar spine report (PCB 52)
H Lumbar nerve root injection report (PCB 53)
J Report of Dr Benjamin Gowrie dated 4 February 2010
(PCB 54-55)
K Report of Dr Benjamin Gowrie dated 28 March 2011
(PCB 56-57)
L Report of Dr Benjamin Gowrie dated 28 August 2012
(PCB 58-60)
M Report of Mr Justin Hunt dated 5 February 2010 (PCB 61-65)
N Report of Dr Clayton Thomas dated 19 March 2009 (PCB 66-67)
O Report of Dr Clayton Thomas dated 24 August 2009 (PCB 68)
P Report of Mr Peter Wilde dated 1 August 2012 (PCB 69-75)
Q Report of Dr H Sutcliffe dated 28 March 2011 (PCB 76-86)
R Report of Dr H Sutcliffe dated 1 October 2012 (PCB 87-103)
S Report of Mr Paul Smith dated 19 October 2012
(PCB 103A-103B)
T Report of Kaye Angel dated 17 April 2011 (PCB 104-112)
U Report of Kaye Angel dated 15 November 2012 (PCB 112A)
V Report of Katrine Green dated 18 October 2012 (PCB 113-129)
W Excerpt from Epworth Healthcare and Health and Allied Services Enterprise Agreement (PCB 135)
X Summary of income tax returns (PCB 136)
Y Plaintiff’s Outline of Submissions
Z Prescription record and progress notes from Dr Benjamin Gowrie’s office
AA CVs of Kaye Angel and Katrine Green.
[2]“DCB”
15 I have read all of these exhibits and take them very much into account. I note that the authors of the various reports were not required to attend for
cross-examination.
The Plaintiff’s Evidence
16 In his first affidavit, Exhibit A, the plaintiff set out the history of his education and vocational training. He said he worked for many years as a sheet metal worker and then decided on a career change and obtained employment at the Epworth Hospital, first working as a storeman and then, after working after a few years, he transferred to work as a cleaner. He enjoyed that work, particularly the patient contact. He worked the afternoon shift between 4.00 pm and midnight.
17 His health was generally good at the time of obtaining his employment with the defendant.
18 The plaintiff’s duties as a cleaner involved lifting sealed buckets which were filled with pharmaceutical waste and glassware. His understanding was that the buckets contained residue from chemotherapy treatment. Often, he had access to a motorised trolley, but sometimes he had to manually lift a number of buckets, which was quite heavy work. The lifting was also awkward on occasions.
19 Whilst lifting buckets on 10 July 2008, the plaintiff developed pain in his back. He then attended the Emergency Department at Epworth Hospital, as I have earlier said.
20 The plaintiff’s affidavit then sets out details of the various treating doctors and surgeons that he saw. His affidavit also sets out the history of imaging reports obtained. These are not in issue and I will not detail them any further.
21 The plaintiff also saw Dr Clayton Thomas, who is an expert in pain management. The plaintiff's general practitioner, Dr Gowrie, prescribed various pain-relieving medications for the plaintiff, including Tramadol, Panadeine Forte, Diazepam and Morphine patches.
22 Although not using these medications constantly throughout the period since his injury, the plaintiff has from time to time used some of these medications. The plaintiff also had physiotherapy and hydrotherapy, and has engaged in other forms of exercise in an attempt to relieve his symptoms and build up his strength. Even so, he has regular ongoing pain. He says that he has constant pain in his back, although the level of pain fluctuates. The pain travels down his buttocks into both his legs. He describes the pain as a constant throbbing type pain but at times he describes it as severe pain.
23 In 2009, the plaintiff attempted a return to work. He returned for three days a week, four hours a day, on light duties. He was terminated from his employment unrelated to his performance.
24 The plaintiff deposed that his back injury interfered with a range of his daily activities. He has difficulty sitting and standing for very long and finds it difficult to get comfortable. He cannot drive a car for long distances. This impedes his capacity to visit family and friends in the Sorrento area.
25 His back pain also affects his capacity to sleep, and has negatively impacted upon his intimate relations with his wife, which he says is a source of frustration for them both.
26 Further, he says that his condition limits his capacity to play with his children. He is also limited in his capacity to garden and help out around the house. He does have a hobby, which is playing with remote control helicopters and cars, but he says this, too, has been impacted by his back injury.
27 The plaintiff claims a desire to work as he has always enjoyed physical labour; however, he says he has no other real work skills. He says activity which involves prolonged sitting, standing, bending or twisting is beyond his capacity. Although he has attempted to acquire computer skills, he has little aptitude in this regard.
28 The plaintiff’s second affidavit, Exhibit B, confirms the level of his pain and that it is an ongoing source of problems. He had a CT scan and a guided cortisone injection in his spine in 2011 with positive results. However, a subsequent cortisone injection in August of this year was unsuccessful and provoked immediate pain.
29 The plaintiff was referred to a neurosurgeon, Mr Smith, whom he consulted in October of this year. Mr Smith suggested a further MRI scan to see whether surgery is an option. The plaintiff would like to have the MRI scan, but funding for it has not yet been granted.
30 The plaintiff also spoke of the consequences of the pain affecting his sleep. He cannot get a good night's sleep. He is forced to get up a few times in the night. He suffers excruciating cramps in his leg about two nights a week, which makes it difficult for him to get out of bed. He said he would be lucky to achieve five hours of sleep a night.
31 The plaintiff’s pain and injury compromises his capacity to tie his shoelaces, and either his wife helps him with his shoelaces or he has to wear slippers.
32 In his sworn evidence before me, the plaintiff clarified his employment income. He said that in addition to the income referred to in paragraph 15 of his first affidavit, he also salary sacrificed $9,000 per year, but not for superannuation; it was to pay household bills.
33 The plaintiff also elaborated on his work history after leaving school. He said he had never worked in an office other than as described. Following his injury, he participated in a computer course at the Living and Learning Centre through a local community enterprise. He said that he does about three hours one day a week. In that course, he learnt how to use Word on the computer. He can bring up a Word program, perform a spell check, insert Clip Art and other basic skills. However, he feels that he would be capable of doing an office job. He is not a good speller, he is not good at reading and he would require verbal instructions.
34 The plaintiff confirmed he still had ongoing pain. He said this forces him to move constantly and if he stays in the one spot for too long, his back aches. He says he can sit for a while “but then I want to move or jiggle around a bit and move my back”. He agreed that medication alleviates the pain, as do heat packs.
35 The plaintiff listed his current medication. He is taking Tramadol and Diazepam and, until recently, Endone, which he ceased due to its unpleasant side-effects.
36 In cross-examination, essentially six topics were explored:
(1) Why the plaintiff lied about his dismissal from employment. The purpose of this cross-examination was to undermine the plaintiff's credibility as an honest and reliable witness;
(2) The physical activities of which the plaintiff is capable following his injury. His capacity even for light duties is extremely limited. In his return to work with the defendant, his duties included only limited light dusting, cleaning hand rails, cleaning windows at or around waist height, and all provided there was no bending or twisting involved;
(3) Hobbies and social activities. The plaintiff enjoys remote control helicopters and cars and going to the movies. He also enjoys going to the football. His capacity for all of these activities are somewhat limited;
(4) The frequency of attending his general practitioner and of receiving prescriptions for pain-relieving medication and/or treatment. The material shows there are some gaps in attendances and treatment;
(5) The training in which the plaintiff has participated that increases his capacity for alternative employment and alternative employment.
(6) Available alternative work that might be suitable given the plaintiff’s physical limitations.
37 I also asked the plaintiff a number of questions. These appear at
Transcript pages 72 to 76. I asked him to explain a typical working day before his injury at the defendant's employment. He said:
“I would start off the day as cleaning pharmacy and that would include mopping, moving the corrosion buckets, then I would go up to Peter Mac Cancer Centre and start doing the bins, then I would go up to Peter Dohrmann’s office and I’d clean his office, then go back to Peter Mac and start doing the high dusting, the vacuuming to a certain extent because the patients sometimes ran to eight, nine o'clock at night so you only could clean a certain period of the time and then in between that I would go to cath lab and would collect all linen bags, all the rubbish, take them down to the loading docks, you know, put them in the trolleys to be collected.
Then I go to ICU later on that night, mop all ICU out and then I would end up going back to Peter Mac after that and finishing my last three hours by vacuuming, cleaning, any other rubbish, mopping the toilet areas and I would take their linen bags at the end of the day down to the – to the other loading dock as well. We were doing 7.6 hours a day, five days a week.”
38 Asked whether he ever had to do any clerical work as part of his work, he said:
“We would go down and in Peter Mac they have a little area with a storeroom and I just had a storeroom down near YML Services where I just take a trolley and load up what I want and just tell the boss that you know, 'I'm taking two boxes of toilet rolls up' or 'I'm taking the tissues up for the patients,' and that’s - and he would fill out the paper and give it to the rest of them. I just had to show him what I was taking out of the storeroom. Towards the end they did come up with a - a piece of paper where we had to tick like various items off, if I remember correctly.”
39 Taken to Exhibit C, which was the plaintiff’s Claim for Compensation, he agreed that he had filled it out in his normal handwriting. The document shows on its face that the plaintiff's handwriting is far from perfect. Further, he mixes and combines upper and lower case within words. I asked him:
“I don't mean to embarrass you in any way but if you look at the second page, for example, the way you’ve written the name and address of the hospital you seem to mix up lower case and upper case, you know capital letters and non-capital letters, is that normal for you?---And I also do my ‘Ds’ and ‘Bs’ the same, I mix them up as well.
How confident are you that you would be able to hold down a job that would involve handwriting?---Not very.
How many hours a week do you think you're capable of working now, honestly if you had a job that was within your capacity that you felt comfortable doing, how many hours a week do you think you could do a day?---Probably 13, 14 hours a week.
What do you think you could do if I said to you you could design a job within your capacities what would that job be?---I need to be able to obviously do a bit of walking, you know, move, doing a bit of moving, to be able to sit. To be honest, I’m not sure. I mean I’d love to say I could do – I don’t think I could do clerical work.”
40 I also asked him about volunteer work in which he claimed to have an interest. He said he would like to do work that involves talking to people:
“I probably could take them down, you know, like in the car to the shops and let them walk around but you got to, I suppose, there's criteria's about that as well, you know, we can't just waltz up probably without certificates or medical just in case they fall, but that's the kind of thing I'd like, yes.”
The Defendant's Case
41 No oral evidence was called.
42 The defendant tendered a number of exhibits:
1 Affidavit of John Lauretta sworn 10 February 2012
(DCB1-2F), noting deletions by consent marked in red
2 Report of Dr Dominic Yong dated 22 September 2008 (DCB 3-7)
3 Report of Dr Dominic Yong dated 23 September 2008 (DCB 8-11)
4 Report of Dr Dominic Yong dated 30 September 2008 (DCB 12-18)
5 Report of Mr Michael Dooley dated 13 October 2011 (DCB 19-22)
6 Report of Mr Michael Dooley dated 2 October 2012 (DCB 23-25)
7 Report of Dr Malcolm Brown dated 16 October 2012 (DCB 26-30)
8 Vocation Assessment Report of Nabenet dated 9 March 2012
(DCB 54-61)
9 Letter from second defendant to worker dated 5 October 2009
(DCB 66)
10 Epworth Hospital Emergency Department notes dated 2 August 2008 (DCB 67)
11 Summary of surveillance as admitted
12 Copy submissions on behalf of the defendant.
43 I have read all of these exhibits, and take them very much into account. None of the authors of these exhibits were required to attend for cross-examination.
44 The defendant relies heavily on the vocation assessment report prepared by Nabenet, Exhibit 8. It is interesting to note that that report records that the plaintiff varied his posture constantly during the assessment, between sitting, standing and walking. He reported a significant level of pain during the assessment and was observed to lean against the meeting table for support whilst standing. He was also seen to walk slowly and only sit for a few minutes at a time, as he noted static postures increase his pain levels.
45 The plaintiff's symptoms were reported to include constant and severe pain levels in his back and numbness in both legs. He reported that the effects of a recent cortisone injection were gradually wearing off and his pain levels are increasing again.
46 The plaintiff's functional tolerances were assessed at:
· sitting – 15 to 20 minutes, prefers to sit;
· standing – up to 15 minutes;
· walking – up to 15 minutes;
· stairs – avoids using stairs;
· driving – up to 30 minutes;
· bending – difficulty with bending activities;
· lifting/carrying – able to manage lifting “light” weights;
· upper limb use – difficulty with overhead reaching activities;
· push/pull – assisted by his wife and children;
· self-care activities – often assisted by his wife with dressing activities, generally wears tracksuit pants and thongs;
· household activities – assisted by his wife and children.
47 Under the heading of “Work Capacity” on page 3 of the report, the author noted that the plaintiff has been certified unfit for any duties for an extended period of time by his treating general practitioner, Dr Gowrie. The author also referred to Mr Dooley's report, which noted that the plaintiff is unfit to carry out heavy, physical work or work that involves a lot of bending and lifting, but that from an orthopaedic viewpoint, the plaintiff is capable of carrying out light physical work and clerical duties.
48 After referring to the plaintiff's employment history and qualifications, the author considered that the plaintiff's employment experience, training and qualifications suggest that he possesses the following skills and abilities: general cleaning and maintenance; removal of waste; ability to perform welding tasks; ability to utilise power and hand tools; knowledge of despatch processes; stock and quality control or assurance; installation and assembly skills; liaison with suppliers for stock ordering; provision of care to elderly residents; ability to build rapport with individuals from a variety of backgrounds; basic computer operation, and strong English communication skills.
49 The report then suggests a number of jobs claimed to be suitable for the plaintiff. The first of these is a receiving despatch clerk, ASAP Recruitment Agency under “Physical Requirements”:
“ASAP Recruitment Agency report that prolonged sitting at an office desk is the main physical demand. Whilst the workstation is set-up for sitting at a desk, basic modifications such as an adjustable height monitor and raised platform for the keyboard/mouse will enable the worker to vary work postures between sitting and standing at regular intervals.
Use of one or both upper limbs is required for desk based tasks such as operating a computer and using a telephone. Occasional standing and walking is required to view freight in the warehouse.
The wage rate for this job is between $22 and $25 per hour.”
50 The second job listed is distribution clerk, “Expeditors International”. Again, this work involves prolonged sitting at an office desk but also, as I understand it, has provision for modification of the work environment. The annual salary for this job is $35,000 to $45,000, plus benefits.
51 The third job listed is warehouse administrator, PM shift, IPA Personnel. The physical requirements are predominantly seated at an office desk however also involve standing and walking short distances at frequent intervals to access the warehouse area and liaise with truck drivers. The annual salary is $48,000 to $49,000 per year.
52 The fourth job listed is container data entry clerk, nightshift,
Australian Personnel Solutions. The physical requirements are predominantly seated at an office desk, but also involve standing and walking short distances at frequent intervals to liaise with truck drivers. The work station can be modified to accommodate the plaintiff's physical problems. The pay is $22.97 per hour.
53 The final job listed is hygiene washroom service technician, Rentokil Pink Hygiene. The physical requirements of this job are frequent sitting to drive to and from customer sites. Customers are located in the Melbourne CBD so driving times are frequently under 30 minutes. There are also physical requirements for moving bins and so on. The annual salary is $37,500.
54 The defendant's medical evidence confirms the plaintiff's physical injuries and that the plaintiff is incapable of returning to his pre-injury employment. Some of the defendant’s witnesses, such as Mr Dooley, suggest that the plaintiff is physically capable of some limited form of employment. Clearly, these medical experts do not speak to the plaintiff's capacity for such work other than to the physical capacity. In other words, the plaintiff may be physically fit for a job with his accepted physical limitations, but that says nothing of his intellectual capacity or academic qualifications to perform such work.
55 In his report, Exhibit 5, at point 5 on page 3, Mr Dooley says:
“I believe that as a result of the compensable injury from an orthopaedic viewpoint alone, Mr Padgham has had a mild to moderate loss of lumbar spine function. This loss will persist for the foreseeable future.”
56 At point 7, Mr Dooley says:
“Mr Padgham is unfit to carry out heavy physical work or work that involves a lot of bending and lifting.”
57 At point 9 of the report, Mr Dooley says:
“From an orthopaedic viewpoint alone, Mr Padgham is capable of carrying out light physical work and clerical duties.”
58 In his second report, Exhibit 6, Mr Dooley said, on page 3:
“From an orthopaedic point of view I do not believe that Mr Padgham would have the capacity to carry out regular, heavy physical work or work that involves a lot of bending and lifting. He would have the physical capacity to carry out light physical work and clerical duties. I believe that Mr Padgham would have the physical capacity to work as a receiving clerk, distribution clerk, warehouse administrator, and data entry clerk. I do not believe he would have the physical capacity to consistently work as a hygiene washroom services technician.”
59 Mr Dooley does not comment, and nor is he qualified to comment on the plaintiff's intellectual capacity or educational qualifications to perform any of the roles which he says he is physically capable of performing.
60 Dr Brown, in Exhibit 7, said that:
“[The plaintiff's] diagnosis is chronic, uncomplicated low back pain, probably discogenic in nature but with some contribution possibly from the facet joints and left sacroiliac joint. In such cases, the prognosis is variable - many individuals improve with time and an exercise program but others deteriorate gradually due to genetic influences.
Mr Padgham has quite restricted work capacity at present, and would have difficulty doing any kind of physical demanding work, or indeed working full hours at present. There is likely to be some permanent partial impairment as a result of the compensable injury but I think his work capacity is likely to improve to the extent that he will be able to return to full-time appropriate duties over time. This is the most common situation in such cases.
The vocational assessment report lists job options of receiving/dispatch clerk, distribution clerk, warehouse administrator, container data entry clerk and washroom technician. At present I think Mr Padgham could do most of these jobs but I think he would have difficulty working full time.
Once his symptoms and functional capacity improve I think he would be able to do these jobs on a full-time basis, but timing is difficult to predict.”
61 I should also make mention of the summary of surveillance conducted on the plaintiff, see Exhibit 11. The defendant admits the dates and times that surveillance was conducted of the plaintiff:
(i) Report from Advanced dated 14 November 2012, surveillance conducted on Thursday, 25 October 2012 and Wednesday, 7 November 2012, a total of 7 minutes 21 seconds in footage was obtained, but the surveillance conducted was on 25 October 2012 from 6.54 am to 3.15 pm and on 7 November 2012, from 6.45 am to 1.30 pm.
(ii) Report from PJS Investigations dated 12 July 2012, surveillance conducted on Friday, 22 June 2012 commencing at 7.30 am to 12.30 pm; Monday, 25 June 2012, commencing at 8.00 am to 4.00 pm and on Tuesday, 26 June 2012 commencing at 8.15 am to 11.15 am. Total footage taken is one minute and 17 seconds.
(iii) Earlier surveillance was conducted on Friday, 23 December 2011, commencing at 7.00 am to 4.00 pm and on Saturday, 24 December 2011, commencing at 7.00 am to 1.00 pm, with nil footage taken.
(iv) Earlier surveillance was conducted in August 2011: On Wednesday, 3 August 2011, surveillance commenced at 6.30 am to 12.30 pm; on Friday, 5 August 2011, commencing at 8.00 am to 2.00 pm; Saturday, 6 August 2011, commencing at 3.00 pm to 4.00 pm, and Saturday, 13 August 2011, commenced at 12.00 pm to 7.00 pm. Total footage taken is 17 minutes and 16 seconds.
62 None of the investigators were called to give evidence about any observations made of the plaintiff. No surveillance film was played or tendered in evidence. I am prepared to infer from the failure to call or tender such evidence that any such evidence would not have assisted the defendant.
Submissions
63 Counsel for each of the parties tendered comprehensive submissions (plaintiff Exhibit Y, defendant Exhibit 12) for which I am extremely grateful. I will not repeat the contents of those exhibits. Rather, they are attached to this Judgment as Annexures A and B, respectively.
Is the Injury Serious?
Statutory framework
64 In order to succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury of which he complains is a “serious injury” as defined in s134 AB(19) of the Act.
65 For the purposes of the present application, the term “serious injury” is defined in s134AB(37), as a “permanent serious impairment or loss of a body function”. As mentioned earlier, the body function the subject of this claim is the lumbar spine.
66 The term “permanent” is to be interpreted as meaning “likely to persist in to the foreseeable future”.[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
67 The term “serious” is to be satisfied by reference to the consequences to the plaintiff of any impairment or loss of function of his lumbar spine with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[4]
[4]Section 134AB(38)(b)
68 The Act provides that impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked”, and as being “at least very considerable”.[5]
[5]Section 134AB(38)(c)
69 The issue to be determined in this application is whether the consequences of the plaintiff’s impairment resulting from the injury can fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
70 As I stated earlier, the defendant admits that the plaintiff suffered the compensable injury, but denies that the consequences for him of that injury are at least very considerable.
Findings of Fact
71 I am satisfied that the plaintiff is an honest and reliable witness, although I accept that he did not disclose the true reason for his dismissal from the defendant. I accept he was embarrassed and this, to some extent, explains why he was uncomfortable about speaking on this subject. He did, however, fully disclose the facts to me.
72 The plaintiff was otherwise forthright in his evidence, and notwithstanding the medical evidence tendered on his behalf that suggests the plaintiff is incapable of any employment, the plaintiff expressed a keenness for employment although, on his estimate he would be capable of only working 13 or 14 hours per week.
73 I am satisfied, on the balance of probabilities, that the plaintiff has suffered the physical injuries as claimed. I am also satisfied that he regularly suffers associated pain that requires prescription medication, including opioids. Exhibit Z sets out the plaintiff’s history of attendances on his general practitioner, the treatment administered, the specialists to whom he was referred, and the treatment that they administered. It also sets out the history of prescriptions issued.
74 True it is that there are gaps in consultations and prescriptions; however, the medical material from the plaintiff’s treating doctors must be viewed as a whole.
75 I am satisfied that the consequences of the plaintiff’s injuries are very considerable. The physical impairments are very restrictive. The plaintiff cannot bend, twist or reach high. He is limited to lifting relatively light weights. His working life will be severely impacted. His social life has also been impacted. Further, the plaintiff’s intimate marital relations have been adversely affected.
76 I am satisfied that the plaintiff suffers pain regularly and this was demonstrated not only in court but also in the various consultations that were undertaken to prepare some of the exhibits (e.g. the Nabenet consultation.) It was not suggested in cross-examination that the plaintiff was feigning pain or faking his physical problems.
Is the Injury Permanent?
Meaning of “permanent” for the purposes of the application
77 In Barwon Spinners Pty Ltd and Ors v Podolak,[6] the Court of Appeal observed, at paragraph 19:
[6](supra)
“… the word “permanent” in the definition of “serious injury” in s 134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair — or at least not to any significant extent.”
78 There is a suggestion that a further MRI scan might be conducted and that surgical intervention might be an option.
The Evidence as a Whole
79 There is no suggestion that the physical injury to the plaintiff’s lumbar spine will heal. Rather, the issue is whether the consequences associated with that injury will persist into the foreseeable future, and whether the plaintiff’s chronic pain is permanent.
80 I am satisfied that the plaintiff’s injuries are permanent. I accept that they will continue well into the foreseeable future. This is what Mr Dooley says in Exhibit 5.3 at paragraph 5 – I have already referred to this:
“I believe that as a result of the compensable injury from an orthopaedic viewpoint alone, Mr Padgham has a mild to moderate loss of lumbar spine function. This loss will persist for the foreseeable future.”
81 In any event, I am satisfied that given the plaintiff's track record since the injury there is little prospect of improvement.
Has the Plaintiff Suffered a 40 per cent loss of his Earning Capacity?
Method of calculating loss of earning capacity
82 In Guppy v VWA [2010] VSCA 164, the Court of Appeal explained how this question is to be approached:
“[13]Section 134AB(37) of the Act relevantly defines ‘serious injury’ as ‘permanent serious impairment or loss of a body function’.
[14]The method for determining whether the impairment or loss of body function is ‘serious’ is contained in a suite of paragraphs in s 134AB(38). … those paragraphs operate in the following way:
·the term ‘serious’ is to be satisfied by reference to the consequences to [the applicant] of the impairment with respect to loss of earning capacity when judged by comparison with other cases in the range of possible impairments (para (b));
·the impairment shall not be held to be serious unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments, ‘fairly described as being more than significant or marked, and as being at least very considerable’ (para (c));
·the Court shall not grant leave[7] on the basis that [the applicant] has established the loss of earning capacity required by para (b) unless he establishes, in addition to the requirements of para (c), that he has a loss of earning capacity of 40 per cent or more, measured as set out in para (f), and that he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more (para (e));
[7]Under s134AB(16)(b)
·for the purposes of para (e), [the applicant]’s loss of earning capacity is to be measured by comparing his gross income from personal exertion (expressed at an annual rate) which he is earning, or is capable of earning, in suitable employment as at the date of the hearing of the application by the County Court …., with the gross income (expressed at an annual rate) that [the applicant] was earning, or was capable of earning, from personal exertion (or would have earned or would have been capable of earning from personal exertion) during that part of the period within 3 years before and 3 years after the injury as most fairly reflects his earning capacity had the injury not occurred (para (f)).
…
[17]The effect of the requirements in s 134AB(38) is that to establish that he has suffered ‘serious’ injury, [the applicant] must first satisfy the test in paras (e)(i) and (ii), that is, he must establish that his post-injury earning capacity is at least 40 per cent less than his pre-injury earning capacity and that he will continue permanently to have such a loss of earning capacity. In addition, [the applicant] must satisfy the test in para (c), that is, he must establish that the loss of earning capacity consequence of the ….. injury can be fairly described ‘as being more than significant or marked, and as being at least very considerable’, when judged by comparison with other cases in the range of possible impairments.
…
[49]Once the threshold of a 40 per cent reduction in earning capacity has been met, it is necessary to consider whether the …. injury complies with the requirements of sub-s (38)(c). The consequences of the injury must be more than significant or marked, and must be at least very considerable, when judged in comparison with other cases in the range of possible impairments or losses of body function. …..
[50]In most cases, satisfying the ’40 per cent test’ will (without more) mean that the ‘very considerable’ test is satisfied, that is, the consequence of the injury by reference to earning capacity will be ‘at least very considerable’”
83 I might add here that Ms Kaye conceded that if the plaintiff establishes that he has lost 40 per cent of his earning capacity, leave ought to be granted.
Findings of Fact
84 Whether based on the comparison of pre and post injury income in terms of dollars (expressed annually or hourly) or in terms of hours of work, I am satisfied that the plaintiff has suffered a 40 per cent or more loss of income earning capacity. First, looking at the hours: before the injury the plaintiff could work 37.6 hours per week, I will say 37 hours per week. I accept that the plaintiff can work at best 14 hours per week, which represents approximately 38 per cent of his pre-injury hours.
85 If viewed on an income comparison of pre and post injury, I am satisfied also that the threshold has been met. In the financial year immediately prior to the injury, the plaintiff earned $31,641[8] and I am also satisfied that there was salary sacrifice of $9,000.[9] I am so satisfied on the plaintiff's evidence. The defendant called no evidence on this point and I am prepared to draw the inference adverse to the defendant on this question from that failure to call any such evidence; that is to say, I infer any such evidence would not have assisted the defendant. This would represent total income of $40,641 per annum.
[8]PCB 136
[9]PCB 142
86 I am also satisfied that if the injury was not sustained, the plaintiff would have received increases totalling 7.25 per cent. His gross earnings would have been $43,587 per week approximately, or $800 per week. (See Exhibit W)
87 Sixty per cent of that annual figure is approximately $26,152 per annum, or $503 per week.
88 The plaintiff’s employment was terminated for unrelated reasons. Without the pay increases, and working on annual salary of $40,641, 60 per cent is $24,385, or approximately $469 per week.
89 Accepting as I do, that the plaintiff has a capacity to perform 14 hours of work a week, and assuming that the plaintiff is capable of performing the jobs proposed by Nabenet at the highest hourly rate, the plaintiff has suffered a loss of earning capacity of 40 per cent or more (i.e. 14 hours x $25 = $350, or $18,200 per annum).
90 Comparing the conflicting evidence from Nabenet on the one hand, and the plaintiff's experts, Ms Angel and Ms Green (Exhibit T and V) on the other, I accept that Ms Angel thoroughly analysed the plaintiff's true capacity for work taking into account not only his physical restrictions but also his educational limitations and his mental aptitude for work.
91 As I have said, notwithstanding that I prefer the evidence as set out in the reports of Ms Angel and Ms Green, taking the defendant's material at its highest, I am satisfied that the plaintiff has lost 40 per cent or more of his earning capacity.
Conclusion
92 I found the plaintiff to be a reliable witness who made no attempt to exaggerate his condition.
93 I am satisfied that the plaintiff suffered injury to his lumbar spine in the course of his employment during the relevant period.
94 I am satisfied that it is likely that the plaintiff will continue to suffer considerable pain well into the foreseeable future, albeit that from time to time the level of pain may fluctuate. It is most unlikely that his condition will improve.
95 I consider that the plaintiff's current symptoms and the current consequences of the injury are such that they are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can be fairly described as more than significant or marked and as being at least very considerable.
96 I am satisfied that the plaintiff has lost 40 per cent of his income earning capacity, applying the formula set out in the Act, as explained by the Court of Appeal in cases such as Guppy.
97 In all the circumstances, I am satisfied that the plaintiff has suffered a serious injury, as defined, in the course of his employment on or about 10 July 2008.
98 Accordingly, I grant leave pursuant to s134AB(16)(b) of the Act for the plaintiff to bring common law proceedings in respect of pain and suffering and loss of earning capacity damages in respect of injuries suffered in the course of his employment on or about 10 July 2008.
- - -
Annexure “A”
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
No. CI-11-05349
BETWEEN:
ANDREW PAGDHAM
Plaintiff
- and -
EPWORTH FOUNDATION
Defendant
PLAINTIFF’S OUTLINE OF SUBMISSIONS
1. Evidence of the Plaintiff
The Plaintiff described –
(i)Constant pain in the middle of his back going to his buttock (T-15, L.15), the restrictions on activities (PCB-46, paras.10-15) and the effects on his capacity to work (PCB-47, para.15) (Mr Hunt noted when he was seeing him in early 2009 that he was keen to increase his hours (PCB-63.2) and Dr Gowrie noted on 28th August, 2012 “he is really keen to work” (PCB-60.1)).
(ii)His work doing modified duties with the Defendant and the nature of his work doing waist high cleaning and dusting (T-31).
(iii)His complaint that it was not a real job (PCB-22, L.1) - “I didn’t really have light duties, they just gave me a rag and bottle and said go clean somewhere.”
2. Credit
(i)An attack was made on the Plaintiff’s credit on the basis that he gave histories that his employment was terminated as a consequence of no further light work.
(ii)We submit that whilst it was clear that the Plaintiff has said both in his Affidavit and to doctors and others that he was terminated as a consequence of no light work, it should be seen in the context of his embarrassment about the accusations and in the context that he denied the accusations (T‑30, L.20) and ultimately accepted the Defendant’s decision in the context of not getting any help from the Union “I am not that smart, I just accepted what they did and moved on” (T-30).
(iii)It is our submission that the Plaintiff presented as a person endeavouring to do his very best to tell the truth and was open and frank.
(iv)Further, it is our submission that the discomfort shown by the Plaintiff in the witness box was genuine and a real indication of the difficulties he would have in contending with any workplace.
3. The medical evidence
(i)It is the Plaintiff’s contention that apart from Mr Dooley, all of the medical witnesses accept that the Plaintiff has a condition of chronic pain which occurs as a consequence of the condition of his back. Mr Dooley makes the comment (DCB-21, L.5) –
“Patients with symptomatic degenerative disc disease of the low lumbar spine can note intermittent pain. They do have long periods where they can be relatively pain free and active but will then describe periods when they have more significant pain and stiffness.”
He then goes on to say at the bottom of the paragraph –
“My overall view is that the constancy and intensity of Mr Padgham’s ongoing pain is greater than I would expect to see from either his underlying condition or injury sustained. I believe his psychological condition is contributing to his ongoing pain”.
He then goes on to say (DCB-21, Item 6) –
“I believe that Mr Padgham will continue to note intermittent low back pain and occasional lower limb pain”.
Mr Dooley talks about intermittent pain. This is not the Plaintiff’s complaint. His complaint is of constant pain or chronic pain. For example Mr Wilde (PCB-71.4) –
“He complains of chronic back pain which he rates pain levels on the visual analogue scale as 5 out of 10 on a good day and 8 out of 10 on a bad day.”
There was no suggestion from Mr Wilde or any of the treaters that the Plaintiff’s complaint of pain is exaggerated or could not be correct. Mr Dooley’s path of reasoning seems to be based on the natural history of “symptomatic degenerative disc disease of the low lumbar spine”. That only offers a very general consideration.
(ii)Mr Hunt, the treating orthopaedic surgeon, who saw the Plaintiff on at least four occasions (PCB-61-63) offered the following (PCB‑63.5) –
“The natural history of back pain symptoms is that in most people they subside and settle with time although recurrences can occur. Others, however, have chronic ongoing back pain symptoms which are exacerbated by further activity and are difficult to manage. Mr Padgham appears to fall into the latter category as he has ongoing symptoms since the injury to his lower back in 2008”
We would add that those symptoms have continued to the present time and certainly have not improved.
(iii)In so far as Mr Dooley appears to have relied upon the Plaintiff’s general practitioner, Dr Gowrie “that at times Mr Padgham had been emotionally stressed, anxious and depressed” as support for the conclusion that his psychological condition is contributing to his ongoing pain (DCB-21.4), we contend there is no suggestion in Dr Gowrie’s report that the Plaintiff is suffering from pain enhancement as a result of his psychological condition (see particularly the tenor of his final report on the 28th August, 2012 commencing PCB-58).
(iv)There is certainly no suggestion from the Plaintiff’s current treating neurosurgeon, Mr Paul Smith, that the Plaintiff is suffering from any psychologically driven pain enhancement (PCB-103A-B).
4. Work capacity and permanency
(i)Dr Gowrie, in his final report, expresses the hope that the Plaintiff will get back to some sort of employment “albeit on a part-time basis initially” (PCB-59.3). He also expresses the view that the Plaintiff could not do the job suggested by the Defendant (PCB‑59.9) and he notes the Plaintiff is really keen to work (PCB‑60.1).
Whilst the Defendant will rely on the “expression of hope” by Dr Gowrie, we say that it is notable that all the treating orthopaedic surgeons and orthopaedic reporters regard the Plaintiff’s position as stable (Mr Hunt PCB-64; Mr Wilde PCB‑73.9 and PCB-75.1; Mr Dooley DCB-25.4; Mr Smith who whilst he wants to further investigate the Plaintiff is nonetheless directing his attention to palliative care ie. injections).
(ii)Work capacity - we have already referred to Dr Gowrie above. Mr Hunt in early 2009 (PCB-64.9) notes he could potentially perform some sedentary type work (PCB-64.9) however Mr Hunt does not appear to have taken into account the Plaintiff’s intellectual capacity or the specific difficulty with sitting.
(iii)Dr Clayton Thomas (24th August, 2009) (PCB-68.8) notes that the Plaintiff should remain at work for 4 hours 3 times a week at this stage.
(iv)Dr Yong, occupational physician reporting for the Defendant, notes in his report dated 30th September, 2008 (should be 2009) that he thought at that stage the Plaintiff’s condition had not stabilised and was likely to improve (DCB-18.5). He thought he had a current capacity to participate in a graduated return to work program (DCB‑16.7). This view is contradicted by all the Plaintiff’s treaters at that time.
(v) Mr Peter Wilde concludes (PCB-74.5) –
“He is incapacitated for pre-injury duties but does possess a work capacity for modified duties or sedentary tasks on a part-time basis.”
He also notes the Plaintiff possesses a positive attitude and refers to his wish to undertake further education. It is to be noted that Mr Wilde is an orthopaedic surgeon and does not undertake any real assessment of the Plaintiff’s capacity for office work.
(iv)Dr Sutcliffe – it was in fact Dr Sutcliffe who undertook the analysis and particularly in her second report dated 1st October, 2012 (PCB‑87). She commences an analysis at the various jobs on page 85 and a range of occupations, particularly those referred to by Nabinet (PCB-86). She concludes the lengthy analysis on page 102. We note that her conclusion that he has no capacity to undertake hygiene washroom services technician job recommended by Nabinet and in this she is in agreement with Mr Dooley (DCB-25.5).
Her general conclusions are supported by Flexi Personnel (PCB‑109.8) and following the vocational assessment report of Katrine Green (PCB-113) who particularly addresses the Plaintiff’s capacity for work in a clerical administrative role noting the following (PCB-121.8) –
“Mr Padgham has never worked in a clerical administrative role. It is considered that he does not have the relevant work history, transferable skills or training to do so. While he has independent English and language skills, his spelling is poor. Although Mr Padgham is attending a basic computer course, his skill level is very low and certainly not adequate to work in an office. He has no keyboard skills.”
(v)Mr Dooley says the Plaintiff has a physical capacity for the various jobs referred to by Nabinet namely receiving clerk, distribution clerk, warehouse administrator and data entry clerk and indicates he does not think he would have the physical capacity to consistently work as a hygiene washroom services technician. Mr Dooley does not conduct any analysis as to whether or not the Plaintiff has the capacity to perform clerical work.
(vi)Dr Malcolm Brown, occupational physician reporting for the Defendant – he saw the Plaintiff on the 16th October, 2012 (DCB‑26). He noted that Dr Clayton Thomas, in August 2009, found that Mr Padgham had a capacity for about 12 hours per week (DCB-29.2) and he also notes that following that, the Plaintiff had put on a lot of weight. He concluded (DCB-29.7) –
“Mr Padgham has quite restricted work capacity at present and would have difficulty doing any kind of physically demanding work or indeed working full hours at present.”
He goes on to express the view that his work capacity is likely to improve to the extent that he will be able to return to full-time appropriate duties over time.”
In the analysis of the above, we point to the following:
(a)The accident occurred nearly 4 ½ years ago. The Plaintiff has attempted a return to work and was working very limited hours doing very limited duties. This was clearly not a real job and he had persisted in this position for over a year and was not able to graduate to anything like real work, even on a proper part-time basis.
(b)The evidence points to the Plaintiff being keen to work.
(c)The Plaintiff’s condition has not improved over the years.
Dr Brown then goes on to express the view that the Plaintiff could do the various clerical jobs suggested by Nabinet and he also says the Plaintiff could perform the washroom attendant works all on a part-time basis. The last conclusion in relation to the washroom attendant is contradicted even by Mr Dooley. There is no thoughtful analysis or attempt to tease out whether or not the Plaintiff has any capacity for clerical work. We contend that it is plain that the Plaintiff, who will be 50 in a bit more than 6 months time and who has never performed clerical/administrative work before or work with computers and who has difficulty with reading and spelling, would not cope with office work. Indeed that was his evidence.
5. Conclusion
(i) Pain and suffering –
There has been no real issue in this case that the Plaintiff has chronic pain, takes significant medication and the situation has been continuing for almost 4 ½ years with no improvement. The only treatment being currently suggested is palliative. The Plaintiff set out a significant range of consequences including loss of his normal job. It is our submission the Plaintiff easily passes the very considerable test.
(ii)Loss of earning capacity –
(a)Without injury earning capacity –
In the financial year immediately prior to the accident (30th June, 2008), the Plaintiff earned the following:
$31,641.00 (PCB-136) plus salary sacrifice $9,000.00 (PCB-142) – total $40,641.00.
Since the accident, the Plaintiff would have received two increases totalling 7.25% (PCB-135).
Therefore, his gross earnings would have been before the expiration of 3 years from the accident $40,641.00 plus 7.25% = $43,587.00 per annum or $838.21 per week.
It is the Plaintiff’s contention that the sum of $43,587.00 best represents his without injury earning capacity within the time frame permitted by the act.
60% of the above figures - $26,152.36 per annum or $502.93 per week.
(b)With injury earning capacity –
It is the Plaintiff’s primary contention that the analysis of Dr Sutcliffe should be accepted and the Plaintiff has, in effect, no earning capacity.
Alternatively, if the proposition is accepted that the Plaintiff has a capacity for some work, it is our submission that the thrust of the medical evidence supports the proposition that the Plaintiff’s capacity is for no more than light work part‑time.
· Light bench work (PCB-112A) $16.42 gross per hour
x 12 hrs = $197.04 - $10,246.00 annualised
x 19 hrs = $312.00 - $16,223.00 annualised
· Clerical worker (basic duties) (PCB-112A) $16.97 gross per hour
x 12 hrs = $203.64 - $10,590.00 annualised
x 19 hrs = $332.43 - $16,766.00 annualised
We contend that before the accident, the Plaintiff was a cleaner and had not performed office work. If he has any capacity, it is only on a part-time basis doing the sort of hours he was working in 2009 (12 hours per week) in light work and on that basis, he clearly is below the 60% of his without injury earning capacity.
PAUL O’DWYER SC
JOHN GOLDBERG
16th November, 2012.
Annexure “B”
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
No CI 11 05349
BETWEEN:
ANDREW PADGHAM Plaintiff
and
EPWORTH FOUNDATION Defendant
SUBMISSIONS ON BEHALF OF THE DEFENDANT
Introduction
From the Defendant’s perspective, the issues are as follows:
(a)whether the impairment to body function resulting from the Plaintiff’s lower back injury is “serious” as defined in the Act? In other words, whether the impairment meets the threshold of being ‘more than significant or marked and at least very considerable’ when judged by comparison with other cases in the range of possible impairments (s 134AB(38)(c))?
(b)whether the Plaintiff satisfies the requirements of section 134AB(38) in respect of loss of earning capacity? It is the Defendant’s position that he does not satisfy the test, as he does not have a loss of earning capacity of 40% or more as measured in accordance with section 134AB(38)(f).
(c)whether any impairment is permanent (s 134AB(37)), and whether any loss of earning capacity of 40% or more will continue permanently after the date of decision (s 134AB(38)(e)(ii))?
‘Range’ – the impairment is not ‘serious’ as defined in the Act
This issue requires examination of the impairment to body function of the Plaintiff resulting from his lower back injury, to determine whether the consequences of such impairment are serious: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, at [33]. The relevant questions are:
(a)What is the injury?
(b)What is the impairment to body function produced in consequence of the injury, and is it permanent?
(c)Are the consequences to the Plaintiff of the impairment ‘serious’ as defined in the Act?
It is relevant to examine briefly what various doctors have opined about the nature and extent of the Plaintiff’s injury. The doctors’ opinion in this respect shed some light on the true extent/nature of the injury, and this is relevant to the extent/nature of the impairment and its consequences: see Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at [11 (c) and (d)].
Most of the doctors (both treaters and medico-legal doctors) agree that the Plaintiff’s back injury is in the nature of spondylosis or aggravation of pre existing degeneration.
In particular, a number of the doctors opine that there is no neurological involvement:
- Mr Wilde diagnoses spondylosis without radiculopathy (PCB 73);
- Mr Wilde opines that there are no objective neurological findings in the lower limbs, and the reported left foot numbness is in a non anatomical distribution (PCB 72);
- Dr Brown opines that there is no neurological involvement (DCB 28);
- Dr Yong opines that on a neurological examination, there were very minor objective neurological signs (DCB 6, 14);
- Mr Dooley opines that there is no consistent true sciatica (DCB 21).
Further, Mr Dooley took the view that from an orthopaedic perspective, the Plaintiff should be able to walk reasonable distances regularly and undertake low impact exercise, and that there were psychological factors involved in his presentation (DCB 21, 24).
Indeed, no doctor has recommended surgical intervention at this stage.
As to the consequences of impairment resulting from the injury, the evidence of the Plaintiff was as follows:
o Since sustaining the injury, the Plaintiff has commenced a significant hobby and passion – flying model remote control helicopters, which he does every week or two (T 34-38). (Cf. his first affidavit, where he deposed that he had not been very active in that hobby due to his back injury).
o He is the family ‘driver’, as no one else in the family drives (T 41);
o His attendance at football matches has not reduced significantly post injury, as compared with pre injury. Pre injury, he attended the football about three times a year, now he attends about once a year (T 38).
o His attendance at the cinema has not reduced significantly. Pre injury, he attended the cinema twice a year and post injury he still attends, having attended recently (T 41).
o He helps out around the house by washing dishes (T 42).
o He and his wife both do the gardening, although gardening is really his wife’s passion (T 39);
o The Plaintiff was doing cleaning duties, including dusting and window cleaning, until he was terminated for falsifying timesheets, and he was not terminated because he could not cope with those duties (T 31-32).
It is also relevant to examine the evidence as to the Plaintiff’s treatment regime: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at [11 (b)]. His evidence was that he has attended his general practitioner very little this year for his back injury, other than in the last month (T 51). This is consistent with Dr Gowrie’s most recent report (PCB 58), where he states “he has not attended my practice this entire year until recently.”
10.Indeed, it is only in recent times that the Plaintiff has started taking tramadol and diazepam on a daily basis (T 47.4).
11.In addition, the fact that the Plaintiff has not made any efforts to lose weight, for example, by consulting a dietician (T 63), when such would assist in his pain (see, eg, Dr Gowrie at PCB 55), is another indicator of the true level and extent of his pain and impairment. It is submitted that if his pain was truly at a serious level, he would have done something about his weight.
12.This evidence is all consistent with a conclusion that the Plaintiff’s pain is more intermittent than constant (see also Dr Gowrie at PCB 58).
13.It is submitted that the question of the Plaintiff’s credit as a witness of truth is very relevant to the Court’s assessment of the seriousness of the consequences of impairment. This is because it is the Plaintiff’s reports of pain (both to the Court and to doctors), and his reports as to his ability/inability to do activities, which form a large part of the evidence on the issue of ‘range’.
14.The Plaintiff’s affidavit was incorrect insofar as it stated that the reason given to him for his termination from employment with the Defendant was because the Defendant had no more light duties available for him (PCB 42, at [15]) (see T 21). The Plaintiff also incorrectly told various doctors and vocational assessors that the reason given to him for his termination was that the employer had no light duties available (T 22-28). In fact, the real reason given to him for his termination was an allegation made by the employer that he had falsified his timesheets (T 22.16, see also DCB 66). In other words, the Plaintiff told untruths in his affidavit and to various doctors and vocational assessors.
15.Further, the Plaintiff signed a WorkCover claim form in which he answered ‘no’ to the question ‘Have you previously had any other injury/condition or personal injury claim that relates to this injury/condition?’ (DCB 62). It became apparent in cross examination that this was incorrect (T 45-46).
Loss of earning capacity
16.In order to ascertain whether the Plaintiff has a permanent loss of earning capacity of 40% or more, the Act requires assessment of:
(a)the gross income that he is earning (whether in suitable employment or not) or capable of earning in suitable employment, whichever is the greater (s 134AB(38)(f)(i)); and
(b)the gross income that the plaintiff was earning or was capable of earning or would have earned or been capable of earning “during the part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (s 134AB(38)(f)(ii)).
Non injury work capacity
17.It is convenient to examine (b) above first. The summary of the Plaintiff’s taxation returns (PCB 136) indicates that the high point of the Plaintiff’s earnings was $31,641 (in the 2008 financial year). The Plaintiff has deposed that in addition to those earnings, he also salary sacrificed $9,000 (PCB 42 at [15] and T 13). It is a matter for the Court as to whether the evidence about the additional $9,000 is accepted – there is no written documentation supporting that oral evidence.
18.Taken at its highest point, the Plaintiff’s case is that the figure in respect of (b) above is $43,598.47 per annum (T 5). This is the figure if the Court accepts both that:
- The Plaintiff did indeed salary sacrifice $9,000 (see previous paragraph);
- The Plaintiff would have had a 7.25% pay rise up to 2010.
19.The Plaintiff is an individual who employment was terminated for disciplinary reasons (T 22). He acknowledged himself that it is difficult to find work after termination in such circumstances (T 28.13). The Plaintiff has asked the Court to accept that he would have earned $43,587.47 in the 2010 financial year, and to take that as the without injury figure. However, it is submitted that the Court should take the matters raised in this paragraph into consideration in assessing whether it is appropriate to use the higher figure put by the Plaintiff. His employment was terminated in October 2009, and there is no guarantee that he would have (if uninjured) obtained new employment after that date.
20.In the event that the Court accepts the two matters set out in the bullet points paragraph 18 above, the figure which is 60% of $43,598.47 is $26,152.48 (or $502.93 per week).
21.Alternatively, if the Court rejects the Plaintiff’s evidence about the $9,000 salary sacrifice and the pay rise, the figure for (b) is $31,641, 60% of which is $18,984 (ie $365.09/week). Another alternative would be for the Court to accept that the Plaintiff salary sacrificed $9,000, but that he would not have had the 7.25% pay rise up to 2010 as he would have been out of work then anyway. If the Court accepts this scenario, the 60% figure for (b) is $461.54/week.
[Please see Annexure A attached].
Current work capacity
22.In order to succeed in his claim for loss of earning capacity, the Plaintiff must show that he is not able to earn one of the figures set out above (either $502.93/week or $461.54/week or $365.09/week, depending on which figure the Court accepts, as explained above).
23.This requires close examination of the Plaintiff’s current work capacity.
24.As a starting point, the cases have recognized that the relevant inquiry is the Plaintiff’s physical capacity for work, not whether there is a job vacancy in particular jobs which are identified or whether such work will or will not be obtained: Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, at [27]; State of Victoria v Rattray [2006] VSCA 146 at [19]-[20].
25.Other than Dr Sutcliffe, each doctor who has given a report as to work capacity has opined that the Plaintiff has a current capacity for work. In particular, his treating doctors have opined as follows:
- Dr Gowrie (general practitioner): future return to work as a cleaner on a part time basis might be possible (PCB 59). Dr Gowrie also appeared supportive of engagement in volunteer work (PCB 60);
- Mr Justin Hunt (orthopaedic surgeon): the Plaintiff could potentially perform more sedentary work (PCB 64);
- Dr Clayton Thomas (consultant in rehabilitation and pain management): “I am happy for him to return to work if appropriate duties were enabling him to function at work and at home in an acceptable manner.” (PCB 67).
26.Additionally, the medico-legal doctors have opined as follows as to work capacity:
- Mr Wilde (orthopaedic surgeon): the Plaintiff has a work capacity for modified duties or sedentary tasks on a part time basis (PCB 74);
- Dr Yong (specialist occupational physician): Dr Yong conducted a worksite assessment and opined that the Plaintiff had a capacity for work, to participate in a graduated return to work program with the aim of returning to his pre injury hours (DCB 10);
- Mr Dooley (orthopaedic surgeon): the Plaintiff is capable of performing light physical work and clerical duties (DCB 22); Dr Dooley considered that the Plaintiff could do all of the jobs identified by Nabenet (discussed below) other than hygiene washroom services technician (DCB 25);
- Dr Brown (occupational physician): the Plaintiff has capacity for part time non manual work; he could do each of the jobs identified by Nabenet (DCB 29).
27.By contrast, Dr Sutcliffe stands alone in her view that the Plaintiff has no capacity for any work (PCB 96). In her first report, Dr Sutcliffe opines that “Taking into account the nature of the injury and impairment, his age, background, skill and work experience I believe that Mr Padgham has no capacity for any employment into the foreseeable future”. (PCB 85). However, there is no explanation provided as to what factors relevant to the Plaintiff’s age, background, skills and work experience have caused Dr Sutcliffe to reach that conclusion.
28.In her second report, Dr Sutcliffe opined that the Plaintiff had no capacity for any work, including for the jobs identified by Nabenet, and noted that the Plaintiff “has considerable disadvantage when seeking employment re-training due to the items listed including competing against able bodied people, unemployment record for more than one year, a limited capacity to perform office duties, pain restricting his capacity to sit or stand at a desk.” (PCB 96). However, the first and second of those matters (ie the fact that the Plaintiff will be competing against able bodied people to get a job and has been unemployed for over a year) are not relevant to the analysis required under the Act: see Barwon Spinners and Rattray, both discussed above. It is the Plaintiff’s physical capacity which is relevant. Dr Sutcliffe has clearly gone beyond a pure analysis of his physical capacity in reaching her conclusions.
29.Dr Sutcliffe rejected each of the jobs suggested by Nabenet (PCB 101-102). The principal basis upon which she seems to have rejected each job is because of the requirement for prolonged sitting. This ignores the Nabenet report, which specifies that each jobs also involves walking around and standing (DCB 58-60). Each of the jobs will be analysed in further detail below.
30.Ultimately, the weight of the evidence is against Dr Sutcliffe’s views. For this reason, and for the reasons set out in the preceding paragraphs, it is submitted that Dr Sutcliffe’s opinion ought to be rejected by the Court.
31.During the hearing, her Honour Judge Morrish raised the case of Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, at [11]-[14]. However, in the present case, the primary submission in respect of Dr Sutcliffe’s views is simply that she has not explained her views fully, and her conclusions are based on factors which go beyond the scope of what is required under the Act. So much is apparent on the face of her two reports. As such, it is submitted that this is not a case where there was a requirement to cross examine Dr Sutcliffe.
32.It is noteworthy that the one report from the current neurosurgeon, Mr Paul Smith, does not provide any opinion as to the Plaintiff’s work capacity (PCB 103A). It is submitted that an inference can be drawn that Mr Smith’s views as to current work capacity would not assist the Plaintiff.
33.It is the Defendant’s case that the Plaintiff has a work capacity for a number of different jobs. Each of the relevant jobs are set out in the Nabenet report at DCB 54.
34.The Plaintiff’s evidence in respect of skills that he has, and which he can bring to bear in the Nabenet jobs are as follows:
- He has previously worked as a despatch officer, which involved him doing inventories in a warehouse. This indicates that he has a capacity beyond manual work only (T 51-53);
- He has good people skills and enjoys communicating/dealing with people (T 57.24);
- He has not inconsiderable computer skills – to use Microsoft word, type, use email, facebook and the internet (T 55-57, T 29);
- His memory and concentration are okay (T 59);
- He is able to drive (T 41);
- He is able to speak in front of a group (T 58.20).
35.The first job identified by Nabenet is that of a receiving/despatch clerk. The Plaintiff was cross examined about the duties involved in that job and agreed that he would ‘give a go’ to most, if not all, of them (T 59-63). Indeed, this job appears similar in many respects to that which the Plaintiff did for Allindean Pty Ltd for a period of six years (T 51-53). The duties in the other identified jobs - distribution clerk, warehouse administrator and container data entry clerk – have similar descriptions. The jobs are predominantly in warehouse environments - an environment with which the Plaintiff is, evidently, familiar.
36.The Plaintiff relies upon vocational assessments by Ms Angel, Ms Green, and Centrelink.
37.The report of Ms Angel (PCB 104) does not consider the Nabenet jobs. Further, it does not consider any other potential jobs. Ms Angel simply opines that “The plaintiff has very limited prospects of performing suitable employment or being retrained into any alternative vocation, full time or even part time, which would be economically self sustaining.” (PCB 111). This is really a matter for medical evidence. Indeed, there is no evidence at all about the expertise of Ms Angel to give her opinion as to vocational matters. In all of these circumstances, it is submitted that the Angel report should be afforded no weight, or at the most very little weight.
38.Ms Green’s report (PCB 113) considers some potential jobs. For example, Ms Green identifies the jobs of hand packer, product assembler and product quality controller as being appropriate for the Plaintiff based on his education, work history, transferable skills and occupational knowledge (PCB 122-123). Ms Green dismisses the suitability of hand packer and product quality controller on the basis that they involve upper body work (PCB 123). However, it is not the Plaintiff’s upper body that is injured. In respect of hand packer, Ms Green acknowledges that some work places do allow alternating between sitting and standing (PCB 123). It is submitted that the Plaintiff has capacity for either of those jobs.
39.Ms Green also reviewed the Nabenet jobs (PCB 124-126). Her principal objection to these jobs appears to be that he does not have the skills as he has not done these jobs before. However, Ms Green did not obtain from the Plaintiff the information that was given to Nabenet and explored in cross examination of the Plaintiff, namely that he had experience doing a clerical-type job in a warehouse, for six years (T 51-54). Further, Ms Green underestimates the Plaintiff’s capacity to retrain. The Plaintiff has previously worked and re-trained in different fields, from sheet metal worker to cleaner to personal services attendant (T 58).
40.Again, as with Ms Angel, there is no information provided in Ms Green’s report as to her expertise to provide an opinion on vocational matters. Her report simply states that she is a registered psychologist (PCB 126). Accordingly, for this reason, and for the reasons set out in the preceding two paragraphs, it is submitted that very little weight ought to be afforded to Ms Green’s views.
41.The third vocational report relied upon by the Plaintiff is the Centrelink report at PCB 130. This report is from 2009, it does not identify its author, and it was completed in a completely different context and for a different purpose. Only doctors can give evidence as to the Plaintiff’s work capacity from a physical perspective, and it is not clear who authored the report. As such, it is submitted that it should be given no weight.
42.The income that the Plaintiff is currently capable of earning in suitable employment, namely the jobs identified by Nabenet, is set out in Annexure A. It can be seen readily that even on a less than full time basis, the Plaintiff would be able to earn more than 60% of his without injury earnings (ie more than the figure of $502.93/week, which is the Plaintiff’s case put at its highest).
43.Finally, the fact that the Plaintiff has not returned to any form of work after being terminated by the Defendant is reflective, it is submitted, of a lack of motivation to work rather than a lack of capacity. Indeed, the Plaintiff’s evidence was that he has not made any job applications since his termination (T 32.27).
44.Accordingly, it is submitted that the Plaintiff’s application for leave to issue proceedings for loss of earning capacity damages should fail.
Permanency
45.A finding that the Plaintiff’s impairment is ‘serious’ requires a finding that he has a ‘permanent serious impairment’ (s 134AB(37)). Similarly, a finding that the Plaintiff has the requisite loss of earning capacity requires a finding that he will after the date of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more (s 134AB(38)(e)(ii)).
46.It is submitted that the Plaintiff has failed to prove permanency in either of these two respects.
47.Mr Smith’s report (PCB 103A) states that he has asked for another MRI scan, before taking any further steps in terms of treatment (PCB 103B). The Plaintiff’s evidence is that he is currently awaiting that scan, and his understanding is that after the scan, he will see Mr Smith again for discussion about his treatment options (T 49). One option is to have an epidural injection, and surgery might be considered (T 49).
48.In these circumstances, where further treatment is pending and its scope and ambit is unclear at present, it is not possible to conclude that the Plaintiff’s current level of impairment or his current loss of earning capacity is permanent. It could well be the case that treatment by Mr Smith will lead to an improvement in the Plaintiff’s condition. In light of the likelihood of future treatment, it would be mere speculation at this stage to conclude that the Plaintiff’s present impairment and level of work capacity is permanent.
49.Indeed, in August this year, Mr Wilde took the view that deterioration was unlikely and improvement was more likely (PCB 74).
Conclusions
50.For these reasons, it is submitted that the application for leave for pain and suffering and loss of earning capacity should be dismissed.
Roslyn Kaye
Counsel for the Defendant
16 November 2012
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
No CI 11 05349
BETWEEN:
ANDREW PADGHAM Plaintiff
and
EPWORTH FOUNDATION Defendant
ANNEXURE A
DEFENDANT’S CALCULATIONS ON LOSS OF EARNING CAPACITY
Plaintiff’s earning capacity had the injury not occurred
-Date of injury – 10 July 2008
-Three years pre injury (from tax returns):
1. Financial year ended 30/6/2006 - $27,822
2. Financial year ended 30/6/2007 - $29,308
3. Financial year ended 30/6/2008 - $31,641
-Three years post injury (from tax returns):
1. Financial year ended 30/6/2009 – $29,321
2. Financial year ended 30/6/2010 – $7,429
60% of $31,641 = $18,984.60 ($365.09/week)
[Alternatively, 60% of $40,000 per annum (ie including $9,000 salary sacrifice) = $24,000 ($461.54/week)].
[Alternatively, 60% of $43,587.47 per annum = $26,152.48 ($502.93/week)]
Current capacity to earn income in suitable employment
Nabenet report dated 9/3/2012 (DCB 54):
- Receiving/dispatch clerk – ASAP Recruitment Agency
-$22-$25/hour
-22 hours @ $23/hour = $506
-38 hours @ $23/hour = $874
- Distribution clerk – Expeditors International
-$35,000 - $45,000 annual salary plus benefits
-$40,000 per annum = $769.23/week
- Warehouse administrator – PM shift – IPA Personnel
-$48,000 - $49,000 annual salary
-$48,000 per annum = $923.08/week = $24.30/hour
-22 hours @ $24.30/hour = $534.60
- Container data entry clerk – night shift – Australian Personnel Solutions
-$22.97/hour
-22 hours @ $22.97/hour = $505.34
-38 hours @ $22.97/hour = $872.86
Report of Kaye Angel dated 15 November 2012
- Light bench type work - $16.42/hour
-$16.42 x 38 hours = $623.96
- Clerical worker - $16.97/hour
-$16.97 x 38 hours = $644.86
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