Peterson v Victorian WorkCover Authority
[2018] VCC 395
•6 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04046
| RICHARD JOHN PETERSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2018 | |
DATE OF JUDGMENT: | 6 April 2018 | |
CASE MAY BE CITED AS: | Peterson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 395 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – whether the pain and suffering consequences are “serious” – whether the loss of earning capacity consequences are “serious” – whether the plaintiff discharged his onus under ss(38)(g) of the Accident Compensation Act 1985
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: The plaintiff is granted leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Ms S Manova | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-two-year-old single man who suffered injury to his lower back in the course of his employment with Programmed Integrated Workforce Ltd (“the employer”) on 24 January 2014.
2 The plaintiff submitted that the pain and suffering and loss of earning capacity consequences of the impairment of the function of his lower back were “serious”.
3 Mr D Seeman of counsel appeared for the plaintiff. Ms S Manova of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff had suffered a compensable injury to his lower back. The defendant submitted that the plaintiff’s pain and suffering consequences and loss of earning capacity consequences were not “serious”.
5 In relation to the loss of earning capacity consequences, the defendant submitted that the plaintiff had not discharged the onus he bears under ss(38)(g), and otherwise, that he cannot establish that his loss of earning capacity will permanently be productive of a loss of 40 per cent or more.
6 I do not agree. After considering the whole of the evidence, I have concluded that the plaintiff’s pain and suffering consequences and loss of earning capacity consequences arising out of the impairment of the function of his lower back are “serious”.
The Plaintiff’s injury
7 The employer is a labour-hire company. The plaintiff registered with it in July 2013. The employer placed him with Linfox at a depot in Dandenong operated by Linfox. The depot stored products made by Dulux.
8 The plaintiff was required to repetitively manually handle tins of paint to fill delivery orders. The size of the tins of paint ranged between 15 and 20 litres. It was on Friday, 24 January 2014 that the plaintiff was performing this work when he suffered injury to his lower back.[1]
[1]Plaintiff’s Court book (“PCB”) 3-4
The medical evidence
9 The plaintiff saw Dr Faigen, general practitioner, on 28 January 2014. The plaintiff saw Dr Mark Faigen on two further occasions before referring him to have a CT scan because the condition of the plaintiff’s lower back had not improved.[2] The CT scan demonstrated a minor left broad-based posterior disc protrusion at L5-S1 slightly indenting the left neural foramen.[3]
[2]PCB 25-26
[3]PCB 94
10 Dr Faigen referred the plaintiff to a physiotherapist. The plaintiff first saw the physiotherapist on 20 February 2014. As at May 2014, the physiotherapist noted that there had not been any significant improvement in the plaintiff’s overall function.[4]
[4]PCB 35
11 Dr Faigen then referred the plaintiff to Dr Clayton Thomas, consultant in rehabilitation and pain medicine. The plaintiff first saw Dr Thomas on 28 October 2014. On examination, Dr Thomas noted that the plaintiff demonstrated pain in his lower back with some radiation of pain into his buttocks, but he did not consider that there were any neurological deficits.[5]
[5]PCB 36
12 Dr Thomas diagnosed facet joint type pain rather than discogenic type pain. He considered that the plaintiff was not able to work as a picker/packer in a warehouse, and on the basis of the plaintiff’s limited education and work history, he considered that the plaintiff had “major vocational limitations”.[6]
[6]PCB 37 and 38
13 Dr Thomas referred the plaintiff to one of his colleagues, Dr Peter Courtney, pain specialist, who provided the plaintiff with medial branch blocks in March 2015.[7] Dr Thomas reported that they were “of absolutely no benefit for him”. It was then that he considered that the next step in the plaintiff’s treatment was to refer him to a pain management rehabilitation program.[8]
[7]PCB 46
[8]PCB 40
14 Dr Thomas referred the plaintiff to be assessed by a multidisciplinary pain management team. The assessment occurred on 23 July 2015. The plaintiff then attended a rehabilitation program which extended through to early 2016.[9] It would appear that it did not assist the plaintiff in any significant way.
[9]The multidisciplinary team produced a Multidisciplinary Assessment Report at PCB 47-54 and a Multidisciplinary Discharge Report at PCB 55-58
15 Dr Thomas continued to treat the plaintiff, and as far as I can tell from his report dated 8 January 2018,[10] he concluded that the plaintiff was suffering from symptomatic spondylosis at the lumbosacral level. He considered that the following restrictions needed to be placed upon the plaintiff relevant to any return to suitable employment:
“From a restriction perspective, he should lift primarily between waist and chest height. Lifting up to 10 kg frequently. He should avoid lifting, bending and twisting below waist height and if he is required to lift above and below chest height and below waist height, then he should only lift if the object can be lifted with two hands in an erect and appropriate posture without any twisting or asymmetry in the lift.”[11]
[10]PCB 41-44
[11]PCB 43
16 However, he sounded a cautionary note when he suggested that the plaintiff had a capacity to work 20 hours per week so long as the plaintiff worked within those limitations. Of significance is what he then said:
“The comments that I made above are based on the basis of this man working into the foreseeable future without an expectation of aggravation and worsening of his condition. Working beyond the restrictions that I have placed on him will shorten his ability to work overall and not work until one would expect him to, ie, his mid-60s.”[12]
[12]PCB 43
17 In general terms, Dr Thomas then added the following:
“As a consequence of his physical injury and impairment to your client’s back, he does have capacity for suitable employment. I have indicated that he has the capacity to work within restrictions up to 20 hours per week maximum. I have indicated that this would continue into the foreseeable future.
As a consequence of the physical injury and impairment of your client’s back, he is precluded in his ability to function socially, domestically and recreationally to a modest extent but into the foreseeable future. Breaking down activities, he is able to perform the full gamut of his domestic chores.”[13]
[13]PCB 44
18 Dr Faigen shared Dr Thomas’ opinion. He considered that the plaintiff could not do “any manual work or warehousing”,[14] but would have a capacity to do non-manual work on a part-time basis only. He also considered that the plaintiff’s lower back injury would also impact upon his social, domestic and recreational activities. He added that the plaintiff would require ongoing pain relief.[15] The plaintiff has been prescribed Targin, which is a strong analgesic. He takes two per day. He also takes Panadol Osteo at night about three times per week.
[14]PCB 28
[15]PCB 29
The medico-legal assessments
19 Mr Roger Westh, orthopaedic surgeon, examined the plaintiff on 7 July 2017 and 16 January 2018. He provided two reports dated 25 July 2017[16] and 22 January 2018.[17] Mr Westh’s overall impression of the plaintiff is best summarised in his second report, where he said:
“Mr Peterson presents with the features of chronic mechanical low back pain and there has been no change in the clinical finding since the last examination on 7 July 2017. He has a painful, restricted range of movement in his lumbar spine with no evidence of any radiculopathy.
As a consequence of the physical injury and impairment to his back he is restricted in relation to employment or related activities and this will continue for the foreseeable future.
As a consequence of the physical injury and impairment to his back he does not have the capacity to perform his pre-injury duties, being unable to do any work which involves heavy lifting or work involving repetitive bending.
As a consequence of the physical injury and impairment to his back Mr Peterson really only has the capacity to perform light duties. Realistically however, he can be considered to have poor future work prospects given his current incapacity, his poor general condition and his education, skill and work experience. He has now been out of employment since performing very light duties in August 2016.”[18]
[16]PCB 59-61
[17]PCB 62-63
[18]PCB 63
20 Dr Robyn Horsley, occupational physician, examined the plaintiff on 6 September 2016, and she provided a report bearing the same date.[19] She considered that the plaintiff was suffering from mechanical back pain with occasional referred right thigh pain, but no radicular features clinically. She considered the restrictions that should be placed upon his return to suitable employment and the level of his functional tolerances, as follows:
[19]PCB 64-72
“I believe that work has been a significant contributory factor. I believe that the following work restrictions apply:
·Avoidance of repetitive over reaching;
·Avoidance of repetitive pushing and pulling;
·Avoidance of working in awkward and confined spaces;
·Good manual handling technique even when lifting light items;
·Avoidance of truncal rotation;
·Avoidance of repetitive bending and lifting;
·Avoidance of lifting items greater than 10 to 12kgs, except on an occasional basis;
·Avoidance of lifting items up to 10kgs on a repetitive basis.
His current functional tolerances are poor. He is deconditioned. He describes fear avoidance behaviour.
·His sitting tolerance is limited to an hour;
·His static standing tolerance is 10 minutes;
·His walking tolerance depends upon the day and varies from only 5 minutes up to 20 minutes;
·His dynamic standing tolerance is 20 to 30 minutes;
·He avoids driving, but when he does drive is driving tolerance is for local driving in the vicinity of 30 minutes.”[20]
[20]PCB 70
21 Dr Horsley considered that the plaintiff was permanently unfit for his previous role as a picker/packer in a warehouse storeman environment, and forklift driving. She considered that he needed to undertake a functional restoration program, and if he did, then she would set him a goal of returning to work for 15 to 20 hours per week with a view to possible increase beyond that level. She considered his prognosis for return to work as a guarded.[21]
[21]PCB 71
22 When the opinions of Dr Faigen, the physiotherapist, Dr Thomas and Dr Horsley are synthesised, what becomes abundantly apparent is that they considered that the plaintiff has a lower back injury of real significance which is so incapacitating that he cannot return to work for which he was previously qualified by experience, and is significantly limited in what suitable employment he can undertake.
23 Furthermore, the restrictions that Dr Thomas, Mr Westh and Dr Horsley would place upon the plaintiff are of themselves very significant. It does not leave the plaintiff with many vocational options at all, and that is before taking into account a series of other factors commented on by a number of these medical practitioners, namely, his education, skill level and work experience.
24 Mr Ian Dickinson, orthopaedic surgeon, examined the plaintiff on 8 January 2018 for the defendant. He provided a report dated 12 January 2018.[22] Mr Dickinson considered that the plaintiff had suffered an exacerbation of underlying degenerative changes in his lower back. He considered that the exacerbation had resolved, and that what the plaintiff was left with was an underlying perception of injury and pain. This view was not pressed by the defendant.[23]
[22]Defendant’s Court Book (“DCB”) 26-33
[23]DCB 31
25 What the defendant did rely on from Mr Dickinson’s examination of the plaintiff is that he considered that the plaintiff was capable of undertaking suitable employment on a full-time basis. He was asked to comment on the plaintiff’s capacity to return to work as a despatch clerk, supply and distribution manager, stock clerk, data entry clerk and trades assistant. He considered that he could undertake those forms of employment full time, and I assume with no restrictions.[24]
[24]DCB 32
26 Dr Joseph Slesenger, occupational physician, examined the plaintiff on 7 February 2018 for the defendant. He provided a report dated 13 February 2018.[25] He considered that the plaintiff had suffered a mechanical injury to his lower back with aggravation of degenerative disease. He considered that the plaintiff was suffering chronic lower back pain with radiating features, but no radiculopathy.[26]
[25]DCB 35-47
[26]DCB 45
27 Dr Slesenger considered that the plaintiff could not return to his pre-injury work, and he did not anticipate that there would be a significant alteration in the plaintiff’s capacity to re-engage with his pre-injury work in the foreseeable future. He considered that the plaintiff had a residual capacity for suitable employment with the following restrictions:
·“No push, pull, carry or lift over 5 kg.
·No repetitive bending or twisting.
·Adjust posture as required (sit/stand workstation to be provided).
·4 hours a day, 5 days per week.
·No exposure to whole body vibration.”[27]
[27]DCB 45
28 Dr Slesenger was generally optimistic that the plaintiff could return to work as an order packer and a despatch clerk. He advised against the plaintiff returning to work as a forklift driver and was generally cautious about whether he could work as a security officer in gatehouse control.[28]
[28]DCB 46
29 Dr Slesenger also said a number of other things which are of importance given the manner in which the defendant argued that the plaintiff’s pain and suffering and loss of earning capacity consequences are not “serious”. Firstly, he expressed a cautious view relevant to whether the plaintiff would benefit from further rehabilitation. Secondly, he did not anticipate that further treatment would significantly alter the plaintiff’s overall presentation. He noted, however, that the plaintiff had not undergone retraining.[29]
[29]DCB 46
30 I will now turn specifically to the issues of whether the plaintiff’s pain and suffering and loss of earning capacity consequences are “serious”.
Pain and suffering
Pain
31 The plaintiff suffers daily pain in his lower back which varies in intensity. He subjectively assessed his level of pain as being between 3 to 6 out of 10, worsening as the day progresses. It radiates intermittently into his hips, buttocks and the back of his right knee.[30]
[30]PCB 6 and 11 and Transcript 15-16
Sleep
32 The plaintiff’s sleep is interrupted about twice each night. If he is unable to fall back to sleep he will get out of bed until his lower back pain subsides.[31]
[31]PCB 7 and 11 and Transcript 75; 87
Restriction of movement
33 The plaintiff suffers significant restriction of movement. His ability to sit is restricted to 40 to 90 minutes. He avoids driving long distances because the sitting required will provoke the onset of lower back pain and leg pain. His ability to walk is restricted to about 20 minutes. His ability to stand in one spot is restricted to about 10 to 15 minutes.[32] In addition, he suffers a significant restriction of movement, as commented on by a number of medical practitioners, and in particular, Dr Thomas, Mr Westh, Dr Horsley and Dr Slesenger.
[32]PCB 6 and Transcript 16
Medical treatment
34 The plaintiff has undergone a significant level of medical treatment which I have summarised above. The only remaining treatment available to him is to live within the advised restrictions, and to use prescription and non-prescription medication.
Social, domestic and recreational activities
35 The plaintiff is restricted in his capacity to engage in the following social, domestic and recreational activities:[33]
[33]PCB 7 and Transcript 21-24
· Undertaking domestic tasks, such as hanging out washing, vacuuming, doing dishes, and tasks which involve prolonged standing.
· Washing a car.
· Gardening, for example mowing lawns.
· Although the plaintiff referred to interference with camping, fishing and kayaking, they do not appear to me to be activities which he engaged upon to any particular level after he came to Australia from New Zealand. Certainly, that was the case with kayaking. It would appear that it was his intention to resume each of these activities, but his work commitments and lack of companions with whom to engage in these activities are the reasons why he did not resume them to any significant degree.
· The plaintiff obtained a music qualification in New Zealand. He says he was a proficient guitarist. He is unable to play the guitar for much more than about 15 minutes at a time.
36 The lower back injury has brought the plaintiff from a physically fit and active man to someone who is plagued by pain and significant restriction in his capacity to engage in both working and non-working activities to the extent which I have summarised above. I think the plaintiff’s pain and suffering consequences easily satisfy the definition of seriousness, and I have reached that conclusion after having made the comparison with like impairments as I am required to do.
37 I should add that I am fortified in accepting the plaintiff’s evidence of the pain and suffering consequences through the supporting evidence of Ms Erin Peterson, the plaintiff’s sister, who swore an affidavit on 24 November 2017,[34] and Mrs Anne Peterson, the plaintiff’s mother, who swore an affidavit on 21 November 2017.[35]
[34]PCB 14-16
[35]PCB 17-18
Loss of earning capacity
38 The plaintiff was unable to return to his pre-injury duties. He undertook light duties for a short time, but they did not constitute a real job. The plaintiff said that he has not applied for any jobs because he does not believe that he could work reliably. He suggested that he might be able to work 3 to 4 hours per day twice a week so long as the days of work were not consecutive.[36]
[36]PCB 11
39 The plaintiff also said that he doubts that he could work as a despatch clerk, a forklift driver or as an order packer. In relation to work as a despatch clerk and order packer, he felt that there was some limitation on his capacity to work as a despatch clerk because of his limited education, but otherwise saw the nature and extent of his lower back pain as being a serious impediment to being able to work in either of those jobs. In relation to working as a forklift driver, he said that he had done that before and could not see himself being able to work as a forklift driver at all.[37]
[37]PCB 12-13
40 The plaintiff submitted that if I were to find that he could work around 20 hours per week consistently with the evidence of Dr Thomas, Dr Horsley and Dr Slesenger, then the plaintiff will succeed in demonstrating the requisite degree of loss of earning capacity of 40 per cent or more.
41 The plaintiff submitted that I should accept the plaintiff regularly earned $1,200 to $1,300 gross per week, representing what most fairly reflects the plaintiff’s earning capacity had the injury not occurred.
42 The plaintiff referred to a payroll report demonstrating the plaintiff’s weekly gross earnings between 21 July 2013 and 19 January 2014, being 28 pay weeks. It demonstrates that he earned in excess of $1,000 gross on fourteen pay weeks. The earnings during those fourteen weeks were between $1,028.56 and as high as $1,647.54. The plaintiff submitted that I should accept that he regularly earned $1,200 to $1,300 gross per week. He achieved a figure approximating to that range during ten pay weeks.
43 The question of what is meant by “most fairly reflects” the plaintiff’s earning capacity had the injury not occurred has been given some attention in a number of authorities: Acir v Frosster Pty Ltd[38] Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop[39] and Yirga-Denbu v Victorian WorkCover Authority.[40]
[38][2009] VSC 454
[39][2014] VSCA 292
[40][2018] VSCA 35
44 I think the position submitted by the plaintiff is an entirely reasonable one. What the payroll report demonstrates is that when work was available, the plaintiff was prepared to work the hours necessary to earn a significant income and as high as $1,647.54 in the pay week ending 22 December 2013.
45 The plaintiff referred me to clause 44.2(a) and (b) of the Transport Workers Union Road Transport and Distribution Centres Agreement 2014 which provided for a 4 per cent increase in earnings from 1 July 2014, 1 July 2015, and 3 per cent from 1 July 2016. The plaintiff produced the following table which is based upon three levels of earnings of the plaintiff to demonstrate what the increase would be over those years:
‘Without Injury’ Gross Annualised Earning Capacity as at January 2014 Year 1
4 per centYear 2
4 per centYear 3
3 per cent60 per cent threshold
Based upon $1,647:
$85,644
$89,069
$92,632
$95,411
$57,246
Based upon $1,250:
$65,000
$67,600
$70,304
$72,413
$43,447
Based upon $1,012:
$52,624
$54,728
$56,918
$58,625
$35,175
46 The plaintiff produced the following table which is based upon the gross earnings of an order packer and a despatch clerk:
Job Title Rate/Wage 8 hours
per week annualised15 hours
per week annualised20 hours
per week annualisedOrder Packer (DCB 75)
$23.90 gross per hour
$9,942
$18,642
$24,856
Despatch Clerk
$55,000
$11,577
$21,707
$28,943
47 The defendant submitted that I should not accept the higher figures relied upon by the plaintiff, but should work on $1,012 as reflecting what most fairly reflects the plaintiff’s earning capacity had the injury not occurred. I do not agree. I think a reasonable construction of the relevant words is to look at what work was available to the plaintiff, whether he undertook that work and what gross income he could earn from that work. My analysis of the number of occasions that the plaintiff earned in excess of $1,000 gross per week demonstrates very clearly that he was highly motivated to work the hours that he was offered. I see, therefore, no good reason why I should not accept the plaintiff’s submission, and in particular, the application of the relevant industrial agreement.
48 What that leads to is following: If it is assumed that the plaintiff has the capacity to work 20 hours per week as either an order packer or despatch clerk, then clearly, his gross income when annualised compared to what he was earning in the relevant period without injury demonstrates that he easily establishes that he has suffered the requisite degree of loss of earning capacity.
49 I think the plaintiff’s loss of earning capacity consequences easily satisfy the definition of seriousness, and I have reached that conclusion after having made the comparison with like impairments as I am required to do.
50 There are two other subsidiary issues which I must deal with for the sake of completeness.
51 The first is that the plaintiff’s loss of earning capacity is not permanent. I disagree. What resonates from the medical evidence from Dr Faigen, Dr Thomas, Mr Westh, Dr Horsley and Dr Slesenger is that the plaintiff has a residual capacity for suitable employment limited to a maximum number of hours. Although Dr Horsley considered that the plaintiff might benefit from a functional restoration program, I do not accept that, when her opinion is weighed against the preponderance of medical opinions on the issue of the plaintiff’s capacity for employment, that it is an opinion which suggests that the plaintiff’s loss of earning capacity is not permanent.
52 The second is that the plaintiff cannot succeed in proving the requisite degree of loss of incapacity because he has not discharged the onus he bears under ss(38)(g), because his attempts to undertake rehabilitation and retraining are unreasonable, that is, he has not made those relevant attempts.
53 I do not agree. Firstly, the plaintiff has undergone rehabilitation, and that is evident from the evidence of Dr Thomas. It was rehabilitation to bring the plaintiff to a physical state where he could exploit what residual capacity he had in a return to suitable employment. As far as retraining is concerned, that issue is subsumed into the concession made by the plaintiff that I should assume the plaintiff has a residual capacity for suitable employment, namely, as an order packer or despatch clerk.
54 If I am wrong about that, then I do not accept that the evidence supports the conclusion that with retraining undertaken through the prism of suitable employment, it would bring the plaintiff to a greater level of capacity for suitable employment than working 20 hours per week in either of those two jobs.
Conclusion
55 I will grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
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