Patterson v Allianz Australia Workers Compensation (Vic); Limited and Anor
[2011] VCC 1195
•11 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04913
| PETER JOHN PATTERSON | Plaintiff |
| v | |
| ALLIANZ AUSTRALIA WORKERS COMPENSATION (VIC) LIMITED | First Defendant |
| and | |
| GKC FOODS PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 3 and 4 August 2011 |
| DATE OF JUDGMENT: | 11 August 2011 |
| CASE MAY BE CITED AS: | Patterson v Allianz Australia Workers Compensation (Vic) Limited & Anor. |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1195 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – injury to abdominal wall – pre-existing condition – impairment to sexual function – application as to pain and suffering and economic loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D G Brookes SC | Drew Gleeson Legal |
| with Mr N R Bird | ||
| For the Defendants | Mr D R Myers | Lander and Rogers |
| HIS HONOUR: |
1 The plaintiff has a long history of weaknesses and repairs to his abdominal wall, going back to the time when he was an infant, including inguinal hernia repairs in 1969 and 2000.
2 On 2 December 2004, he lifted a pallet while working for the second defendant and felt pain in both groins. Bilateral inguinal hernia repairs were carried out on 2 May 2005, and a further repair to the left side on 16 September 2005. The plaintiff claims not to have recovered from this surgery and has constant pain in both groins with a related range of restrictions in his domestic, recreational and employment activities.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of his employment with the second defendant on 2 December 2004.
4 Mr Brookes, on behalf of the plaintiff, identified the body function said to be lost or impaired as the abdomen, or the abdominal wall. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his without injury earnings in that part of the three year period before and after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, two affidavits of the plaintiff, an affidavit of his wife, various claim forms, an affidavit from his former employer, rehabilitation documents and ultrasounds were tendered into evidence. I have read all the tendered material.
Relevant Background
8 The plaintiff was born in 1968 and is currently forty-two years of age. He attended school to Year 10 and then worked in a range of employment including in child care centres, manual labour and on a regular basis as an orderly in public hospitals in Melbourne and Geelong. Before he commenced employment with the second defendant on 15 November 2004, he spent a number of years looking after his father who was ill and who died in August 2003.
9 He was born with a congenital hip problem which required a range of bouts of surgery until he was ten years of age. Further, he also suffered hypospadias, and required surgery as a result of congenital malformation of the renal tract. When he was one, a bilateral inguinal hernia repair was carried out.[1]
[1] See reports of Mr Solomon and Mr Clarke, Defendants’ Court Book (“DCB”) 90, 91.
10 He suffered an injury at a previous employer in May 2000 and was referred to Mr Domenic Veller who performed a left inguinal hernia repair on 7 June 2000. He was subsequently certified as fit to return to work on light duties. Because there was insufficient full-time work, he went, in December 2000, to Perth for a period. He says[2] that he suffered occasional pain and numbness in the left groin but was able to undertake work from time to time, including as an orderly at St Vincent’s Hospital in 2001. He then worked at the Geelong Hospital from May 2002 as an orderly and ceased work after the death of his mother and went to look after his father until his death in August 2003.
[2] Plaintiff’s Court Book (“PCB”) 12.
11 He commenced a relationship with his current partner, Kerry Hudson, in approximately 2001. Up until the time of his injury year, he claims he enjoyed a normal sex life with her. He claims he enjoyed recreational golf, went surfing, walking and enjoyed a regular social life. He played in a number of bands around Melbourne in the 1990s and would jam from time to time with friends in Portland. He was active with outdoor activities, including chopping wood, bike riding and camping.
The Injury and Its Consequences
12 On 2 December 2004, the plaintiff was working for the second defendant stacking pallets at the defendant’s chocolate factory. As he picked up a pallet he says he felt a pain in both groins.[3] Shortly thereafter, on 9 December 2004, his employment was terminated. According to Mr Borell, a director of the second defendant, the plaintiff had been an unsatisfactory employee and had been disciplined on a number of occasions. Mr Borell says, and the plaintiff accepted in cross-examination, that before he left employment he had made no complaint of the pain or any injury he suffered on 2 December 2004.
[3] PCB 13.
13 He went to see his general practitioner, Dr Barkely on 3 February 2005[4]. An examination revealed bilateral inguinal hernias. This was confirmed on ultrasound.[5] Dr Barkley referred the plaintiff to Associate Professor Collins, surgeon, who examined him on 25 April 2005. He noted the plaintiff was suffering bilateral inguinal hernias and repaired both by surgery on 2 May 2005. In a report after the operation, he said:
“On the left side the situation was quite different. The anatomy had been grossly distorted by previous surgery and there was considerable scarring and a direct inguinal hernia was presumed and repaired.”6
[4] PCB 35
[5] The report of Dr Barkley at PCB 35 says that Mr Patterson attended the clinic on 26 August 2004 and 23 November 2004 for “related” conditions. I am satisfied from the report this was a typographical
14 Professor Collins said the plaintiff made an excellent recovery. However, on 9 August 2005, he again examined the plaintiff and found “to my surprise” a further left saccular inguinal hernia. Further surgery was carried out on 16 September 2005 and a large indirect inguinal hernia containing part of the colon was identified. He said surgery required significant dissection through the fibrous tissue. Again he said the plaintiff made an excellent recovery. He recommended him as being fit for work four to six weeks after the surgery. Professor Collins said the plaintiff had a weakening of his lower abdominal wall as a result of the previous surgery and considered that there would be a 20 per cent lifetime risk of developing a further lower abdominal hernia.
15 Professor Collins has seen the plaintiff on two further occasions, 27 October 2009 and 5 August 2010. He presented then complaining of persistent pain and discomfort in the groin, particularly on the left side. Upon clinical examination and ultrasound investigation, Professor Collins found a further small left inguinal hernia “showing 2.5 centimetre sac which I considered was wide and was not at risk of strangulation”.7 He recommended against any further surgery. He said:
“Basically I think Mr Patterson has persistent scarring to his lower abdomen as a result of a long history of surgical intervention in his lower abdomen for bladder and hernia problems over many years. He currently has a fairly well-healed and sound lower abdominal wall with small hernia sacs with wide necks and I do not believe that these are causing any significant symptoms.”
error and ought to have been “unrelated” conditions.
DCB 31
PCB 33
16
He said that he thought the plaintiff would be able to carry out his regular work activities, although he should avoid heavy lifting and other heavy manual activities. He thought the plaintiff would continue to have some discomfort from the scarring which would not completely disappear.
17
The plaintiff returned to Portland from Melbourne and there has been principally treated by Dr Margaret Garde, whom he first consulted in November 2005. Her treatment has been largely conservative. In addition to the hernias, she considered that the plaintiff had a “nerve entrapment syndrome”. She received a history of ongoing pain together with pain in the scrotum and pain during sexual intercourse. She considered the plaintiff had capacity for employment providing he was not required to lift weights and providing he took care in this choice of employment. She advised him to lose weight and treated him for a range of other unrelated complaints.[8]
18
More recently the plaintiff has been treated by Dr Das, general practitioner of Portland. He saw the plaintiff in April 2009 who complained of left groin pain. He referred him back to Professor Collins and noted that the ultrasound report showed bilateral inguinal hernias.
19
At the present time the plaintiff consults Dr Das on a monthly basis. He has an ultrasound every nine months or so to check as to the condition of the hernias. He takes approximately six Panadol twice weekly when the pain becomes stronger. He says he is reticent to take any stronger pain-relieving medication. He says the consequences of the injury are as follows:
[8] PCB 42-43.
•
He has constant pain in both groins, the worst on the left. It is a stabbing pain with occasional shooting pains. He finds it difficult to sit for any lengthy period and leans to one side. He cannot sit with his legs crossed.
• He says he has difficulty sleeping at night and is often woken by the pain. •
He can only walk for short periods of time and finds it difficult to squat, kneel or stand.
•
He is restricted in the lifting that he can do and doesn’t lift weights more than a few kilograms.
•
Of particular concern is that sexual intimacy is painful and difficult. He has difficulty holding erections and finds his sex life unfulfilling. This has placed stress upon his relationship with Ms Hudson.
•
While he does do some work in the garden, including mowing his lawns and taking the dog for a walk, he is not as active as before.
•
He has attempted golf on several occasions but finds considerable pain when he swings the club. He has not resumed his interest in surfing and rarely plays guitar or sings.
• He finds it uncomfortable to travel any significant distance in a car. 20 In terms of his employment, he has not worked since December 2004. In April 2005, he went for an interview as an orderly at The Royal Melbourne Hospital but did not get the job.
21 In 2005, the plaintiff was assessed for vocational options by the WorkCover Authority.[9] It was noted that he had worked most of his life in the health industry and expressed a desire to stay within that industry. It was suggested that he might be a suitable candidate to do a pathology collection course. By that time the plaintiff was living in Portland and it was noted that securing a position in the health area would not be easy.[10]
[9] DCB 161
[10] DCB 163
22 In October 2006, the plaintiff came to Melbourne to undertake the course in pathology collection. He thought that there would be a wider market for employment in that field in Melbourne. He undertook and completed the course, attending two days per week. After completion of the course, he returned to Portland, which is where his partner lived. The WorkCover Authority vocational assessment noted that work in the district in pathology collection would be difficult to find.[11] Some employers expressed their concern that he might suffer an exacerbation of his hernia injury if he were to be employed.
[11] PCB 176
23 The plaintiff came under the auspices of WorkABLE Consulting Pty Ltd in March 2007. The report of that company noted that there were limited employment opportunities in the western districts for pathology collection and that the plaintiff had no previous experience. It noted that he seemed “shut off” from considering other employment options. He has remained with WorkABLE and has applied for a range of jobs. He said that getting work as a pathology collector was difficult because the work was normally taken by nurses already employed in the local hospitals. He said in evidence that he considered a range of other areas of employment, including truck driving[12] and was assisted by WorkABLE in preparing job applications and writing letters. He said that he was unable to remain in Melbourne as he could not afford the rent and that Portland was his home town where he had been born.
[12] T 37
24 The plaintiff said that he had applied to a number of local hospitals in Warrnambool, Ballarat and Hamilton but has not been able to secure a job in pathology collection to date. He has looked in the local papers and checked on the internet for suitable employment. For a period, the plaintiff took care of his partner’s children, now aged sixteen and eleven.
25 The plaintiff said that at the present time he is looking for work in the nature of sedentary work, office or computer work.[13] He has done a beginner’s computer course although does not have very much experience with computers. In the last several months he has applied for eight or ten jobs. He has not got to the interview stage, except on one occasion, as another person obtained the job. He consults with the Western District Employment Agency with whom he is registered each fortnight or so. He has considered leaving Portland to find an area with better job prospects, but prefers to live in Portland with his partner and friends.[14]
[13] T 46
[14] T 48
Medical Evidence
26 Aside from the reports and opinions of the treating practitioners to which I have referred, the plaintiff was examined by Mr Kenneth Myers, general surgeon, in May 2011.[15] He received a history of the plaintiff’s past significant congenital problems and surgery. He complained of constant pain to both groin areas, worse on the left. Mr Myers detected bilateral hernias. His opinion was that the plaintiff was predisposed to the development of inguinal hernias because of the past history of birth defects in the lower abdomen and hernia repairs. He noted however that the plaintiff had been involved in a range of employment, some of which required heavy and repetitive lifting, and he had been able to carry this out successfully until 2000 when he developed a further left hernia which was successfully repaired. According to the history, Mr Myers said the plaintiff had no further disability from this until December 2004. At that time, because of the heavy straining involved, he considered the plaintiff had most likely developed further inguinal hernias which had been repaired by Professor Collins. At the present time he said the plaintiff was suffering pain in each groin from the further recurrence and possibly due to nerve entrapment on one or both sides. He considered that further repair could be undertaken but he doubted whether this would improve the plaintiff’s
[15] PCB 53
27 On behalf of the defendants, the plaintiff was examined by Mr Michael Troy, general surgeon, in December 2007.[16] He noted that the plaintiff had in the past right and left inguinal hernias developed while working for the second defendant in 2004 and requiring surgery in May 2005 and September 2005. He thought the plaintiff’s condition had not stabilised and that he had suffered hernias which were not related to those which had occurred in 2000.
[16] DCB 102
28 The plaintiff was examined on a number of occasions by Mr Brygel, surgeon, who obtained a similar history to the other practitioners. In his final report of 8 March 2006,[17] he described the plaintiff as suffering a “post hernia pain problem”. This was related to the three previous hernia operations on the left side. He said the plaintiff did not have a capacity to work in a lifting job and thought he could work as a theatre technician or in some allied health profession, provided he was not required to lift more than 5 or 10 kilograms.
[17] DCB 129
29 The plaintiff was examined by Mr Brearley, surgeon, in September 2008. At that time, the plaintiff complained of moderate pain on lifting in the left groin with discomfort after standing for long periods or walking any distance. At that time, there was no evidence of recurrence of the hernias. He thought that the source of the pain was entrapment of the ilioinguinal nerve. He thought there would be no restriction in the plaintiff’s activities of daily living but he would be unable to do any heavy labour.
30 Finally, a report of Mr Peter Scott of the 17 September 2006 was tendered into evidence.[18] He thought the plaintiff’s complaints of pain were related to left inguinal nerve entrapment. He said the recurrent left hernias were due to his employment from October to December 2004. At that stage he said the plaintiff was fit for light work, provided he did not left more than 5kgs and that there was no repetitive pulling and pushing. He said he was fit for the type of employment identified in the Vocational Assessment Report. He described him as genuine and well motivated and keen to return to the workforce.
[18] Exhibit A
Conclusions
31 Although the onset of pain and discomfort in the plaintiff’s groins after the incident of 2 December 2004 is somewhat unusual given that he made no complaint at work and did not attend his general practitioner until February of the following year, Mr Myers did not press the causation issue with any vigour. While I accept that the onset of symptoms was somewhat unusual, the plaintiff’s explanation that he felt an unusual feeling and discomfort in the area at the outset which increased with time, to be a reasonable explanation. He said he was uncertain as to how serious the injury was at the beginning. Generally I found the plaintiff a credible witness who made an honest attempt to answer questions. In cross-examination, he said that he had, before 2004, little in the way of pain or problems during sexual intercourse. However, it is clear from the earlier medical reports,[19] that he had given a history to doctors of discomfort at earlier times.
[19] DCB 98, DCB 100
32 It is clear that the plaintiff has had extensive surgery to the groin areas going back to when he was an infant. I accept the explanation of Professor Collins that this has left him with a susceptibility to the onset of hernias and significant scarring in the area, particularly to the left side. Nonetheless, I am satisfied that the episode at the second defendant’s work premises in December 2004 in the course of lifting a pallet did give rise to the onset of bilateral hernias. While the plaintiff was undoubtedly predisposed to this, that is a matter to be considered on the question of negligence at the trial, rather than causation at the serious injury level. The plaintiff could be considered as a classic “eggshell skull” case. It is significant to note that although the plaintiff had not been employed over a considerable period prior to the incident, looking after his father and then for a period in Western Australia, nonetheless he was able to carry out a range of employment over the years after 2000 apparently without complaint. It was not put to the plaintiff that the pain from which he is currently suffering was ongoing pain from the hernia repair in 2000.
33 I am satisfied that the plaintiff suffers a range of consequences as a result of the December 2004 incident. These include ongoing pain and discomfort, particularly on the left side which requires Panadol from time to time. It is uncertain as to the source of this pain, two doctors being of the opinion there is nerve entrapment.
34 Further, the plaintiff currently has left and right inguinal hernias which, according to Professor Collins, have only a small risk of strangulation. Presumably because of the underlying scarring, they are not amenable to surgery.
35 I further accept that the plaintiff has difficulty sitting for long periods of time and crossing his legs. I accept that there are some difficulties with sleeping at night, and that he cannot actively engage in a range of pastimes he enjoyed before injury, including golf, surfing and his enjoyment of music is reduced. Of particular significance are the difficulties the plaintiff experiences in the course of his intimate relationship with his partner. I accept that intercourse is difficult and he suffers problems with erectile dysfunction. I accept his evidence, and that of his partner, that this has had a significant impact on their relationship. In a man of only forty-two years of age, I regard this as a serious consequence of his injury. For all of these reasons, I am satisfied that the consequences to the plaintiff achieve the “very considerable” level as the legislation requires as to pain and suffering.
36 In terms of the economic loss consequences, the plaintiff has not worked since December 2004. There is mostly uniformity amongst the doctors, including the plaintiff’s treating general practitioner and surgeon, that he has the capacity to work in employment where he is not required to engage in heavy or strenuous activity, particularly lifting. The opinion most favourable to the plaintiff is that of Mr Myers, who regards the plaintiff as an invalid. Because they are treating practitioners, I prefer the opinions of the general practitioner and Professor Collins. Dr Garde was of the view he could work in a pathology collection agency.[20] Professor Collins said the plaintiff could carry out a range of work activities, avoiding heavy lifting, although he would require rehabilitation.[21] In addition, Mr Troy considered he could work in an area similar to a theatre technician, with appropriate training.[22] In 2008, Mr Brearley thought there was no limitation to his daily activities, although he should avoid heavy lifting.[23]
[20] PCB 37, 39.
[21] PCB 34
[22] DCB 130
[23] DCB 136
37 To his credit, the plaintiff has sought and attained retraining in the area as a pathology collector. He has encountered significant difficulties to date obtaining employment in Portland and surrounding areas. The plaintiff did not suggest in evidence that he did not have the capacity to undertake this work, but rather said that he was pursuing jobs in this area, and would take one if offered.
38 He further, over the last several months, has applied for eight or ten jobs in the local district in light duties, including as a receptionist.[24] I am of the view that he has a capacity to undertake this sort of employment. This is particularly so given he is able to go to the TAB most days to bet upon horse races.[25]
[24] T 46-7
[25] T 46
39 It was put by Mr Brookes, on behalf of the plaintiff, that with his problems with standing and sitting there would be very few areas where the plaintiff could be employed and be a reliable employee.
40 The definition of “suitable employment” in the Act means employment for which the worker is suited, having regard to:
• the nature of the worker’s incapacity; • the nature of the worker’s pre-injury employment; • his age, education, skills and work experience; • his place of residence. 41 However, suitable employment must be considered regardless of whether the work or employment is available and whether it is of a type or nature that is generally available in the employment market.[26] This latter provision was implemented as from July 2010 to abrogate situations such as were referred to in Smorgon Steel Tube Mills Pty Ltd v Majkic.[27]
[26] See definition of ‘suitable employment’ in s.5(b) of the Act
[27] [2008] VSCA 230
42 While the plaintiff has had little success seeking to obtain work in his chosen field as a health worker, particularly as a pathology collector, I am satisfied from the balance of the medical opinion that he has the capacity to undertake such work. I further accept that he has the capacity to work in a range of light employment areas providing he avoids lifting or strenuous activity. I bear in mind that the onus rests with the plaintiff to satisfy the Court that as a result of injury, he has suffered a loss of earning capacity of greater than forty per cent when a comparison is made with his earnings before and post injury. Bearing in mind my acceptance of the plaintiff’s work capacity, I am not satisfied the plaintiff has discharged his onus in relation to economic loss. I am not satisfied that he has suffered a forty per cent loss of earning capacity as the legislation requires. That part of his application thus fails.
43 I shall hear from the parties further as to orders.
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