Pietro (Peter) Care v Melaleuca of Australia Pty Ltd
[2016] VCC 143
•22 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04144
| PIETRO (PETER) CARE | Plaintiff |
| v | |
| MELALEUCA OF AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2016, 15 February 2016, and 16 February 2016 | |
DATE OF JUDGMENT: | 22 February 2016 | |
CASE MAY BE CITED AS: | Pietro (Peter) Care v Melaleuca of Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 143 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Economic loss –Current capacity for work – Aggravation to pre-existing degenerative change to cervical spine
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:
Judgment: Leave granted in respect of economic loss and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr J Fitzpatrick | Shine Lawyers |
| For the Defendant | Mr B McKenzie | Thomson Geer Lawyers |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act (“the Act”) by the Plaintiff for leave to commence proceedings for damages in respect of the economic loss consequences and pain and suffering consequences of injuries suffered by him during the course of his employment in the period 12 February 2007 to 31 March 2012 whilst working as a storeman and forklift driver in premises operated by the Defendant at 10 Ainslie Road, Campbellfield, in the State of Victoria.
2 The injuries relied upon by the Plaintiff are:
(i)cervical spine injury including radiculopathy at C6, C4/C5 and aggravation of degenerative changes thereto;
(ii)psychological injuries including depression and anxiety, substance abuse disorder and chronic pain syndrome.
3 The Plaintiff was born in 1968 and is now aged 47 years. He completed Year 10 at Collingwood Technical School and, after leaving school, worked in the family business which was a fish and chip shop. After working in that business for four years, he worked as a pastry cook for three years and as a forklift driver and store person. He also worked for a short time as a driver. In 2001, the Plaintiff’s partner died of melanoma, leaving him with a six year old daughter to care for. Between 2004 and 2007, the Plaintiff was not employed and was caring for his daughter.
4 On 12 February 2007, the Plaintiff commenced employment with the Defendant as a storeman and forklift driver. The Defendant operates a large warehouse and distributes a range of health related products. The Plaintiff’s duties involved forklift driving, unloading shipping containers, loading stock into picking lines and a range of maintenance duties. The Plaintiff’s work involved constant, significant and arduous manual labour.
5 In 2009, the Plaintiff began to experience right shoulder pain and stiffness in his neck. He was prescribed anti-inflammatory medication and his condition improved.
6 On 19 February 2010, the Plaintiff was removing a pallet from a container, using a trolley jack, when he felt a pain in the right side of his neck and shoulder. Shortly after this, he felt a sensation in his right arm and was unable to move his head to the right. The Plaintiff continued to perform his usual duties at work before attending his general practitioner, Dr Joseph Slesenger, an occupational medical practitioner, on 2 March 2010.
7 On 16 March 2010, the Plaintiff submitted a worker’s injury claim form, identifying his injury as upper back, right shoulder and neck, and stating that he was injured when pulling a pallet from a container.
8 On 9 April 2010, a CT scan was conducted of the Plaintiff’s cervical spine which revealed:
“There is a right lateral disc protrusion at C5/C6 level which undoubtedly compromises the right 6th nerve root at the exit foramen. There may be a little compromise of the ventral rootlets of C7.
No abnormality is seen elsewhere apart from mild degenerative change between atlas and odontold peg.
Conclusion: C5/C6 disc degenerative change with a right posterior annulus bulge compromised the right sixth nerve root.”[1]
[1]Plaintiff’s Court Book (“PCB”) 39
9 Following a meeting between the Plaintiff’s general practitioner and the logistics manager of the Defendant, Mr Glen Herring, the Plaintiff returned to work on modified light duties.
10 An MRI scan conducted on 20 May 2010, after the Plaintiff had returned to those duties, disclosed:
“At C2/C3, C3/C4 and C4/C5, there is degenerative spondylosis with loss of disc signal at these levels and only slight circumferential disc bulge at C4/5 level. Minor disc osteophyte complex and minimal foraminal encroachment.
At C5/6, there is a moderate sized right posterior paracentral disc extrusion with right posterior paracentral extruded disc material measuring up to 7 x 6mm in dimension narrowing the right C5/6 intervertebral foramen with likely compression on exiting right C6 nerve root.”[2]
[2]PCB 40
11 I accept that the injury suffered by the Plaintiff during the course of his employment with the Defendant aggravated pre-existing degenerative change to his cervical spine and that the injury continued to cause the Plaintiff significant discomfort and pain after he returned to work on light duties. After he returned to work, the Plaintiff continued to see Dr Slesenger in response to his continuing discomfort and pain.
12 On 30 July 2010, the Plaintiff was examined by Mr Nicholas Maartens, a neurosurgeon, who concluded that the MRI scan conducted on 20 May 2010 demonstrates:
“… a significant C5/C6 disc prolapse compressing the exiting right C6 nerve root.”[3]
He further concluded that:
“I have assessed him as having a largely clinical but not radiologically resolved C5/6 prolapsed intervertebral disc and radiculopathy. He is still experiencing some neck soreness which is to be anticipated but is nevertheless coping.”[4]
[3]PCB 118
[4]PCB 118
13 Mr Maartens noted that he cautioned the Plaintiff regarding his work and heavy lifting and that there remained the potential for a relapse.
14 The Plaintiff continued to perform his duties with the Defendant with increasing pain and discomfort as a result of his cervical spine injury. I accept that the Defendant required the Plaintiff to perform increasingly onerous duties which led to a relapse of his condition, as foreshadowed by Mr Maartens.
15 On 13 March 2012, the Plaintiff ceased working for the Defendant due to radiculopathy and worsening neck pain. He was also diagnosed by Dr Slesenger as suffering from an anxiety disorder at this time.[5]
[5]PCB 45
16 On 2 July 2012, the Plaintiff was referred to Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. Following his first examination of the Plaintiff, Dr Thomas ordered that an up-to-date MRI scan be conducted. That scan revealed:
“…moderate right C5/6 foraminal narrowing secondary to uncovertebral osteophyte with mild bilateral C4/5 foraminal narrowing”.[6]
[6]Defendant’s Court Book (“DCB”) 50
17 Following a further examination of the Plaintiff, Dr Thomas concluded on 17 August 2012:
“The prognosis is for persistent pain relating to the cervical spine. He will have persistent right arm pain, particularly after heavy physical activity. The nature of his condition is likely to continue into the foreseeable future.”[7]
[7]PCB 72
18 Dr Thomas recommended that the Plaintiff undertake a rehabilitation program at the Dorset Rehabilitation Centre. The Plaintiff undertook physiotherapy and pain management, as recommended by Dr Thomas, who again reviewed him on 22 March 2013. Dr Thomas concluded:
“Pain relief was becoming problematic. This was brought to my attention by the physiotherapist at Dorset. He has, of course, the neck pain. He also has headaches and he does get, to a certain extent, some paraesthesia in both arms. He once reiterated to me that he is not interested in considering surgical intervention. This is certainly reasonable as surgical intervention is unpredictable from the point of view of his neck pain and indeed from the headache.”[8]
He further concluded:
“He is finding the pain management program has been very helpful from the educational and the emotional point of view but no help from the point of view of his residual neck complaint.”[9]
[8]PCB 73
[9]PCB 73
19 On 1 May 2013, Dr Thomas again reviewed the Plaintiff and concluded:
“We spoke about retraining options. I have encouraged him to explore these. He does not have the capacity to return to work in a physical sense. He does have good interpersonal skills but still has an ongoing problem which is not in itself insignificant. Undoubtedly, there are major vocational limitations.”[10]
[10]PCB 74
20 On 21 May 2013, the Plaintiff was examined by Mr John O’Brien, a consultant orthopaedic surgeon, on behalf of the Defendant. Mr O’Brien concluded as follows:
“This patient now presents describing a moderate disability. I would consider the patient is not capable of returning to his pre-injury occupation. The patient has been off work for some twelve months and I would consider that on his current presentation he is now totally incapacitated. Unfortunately treatment has not produced any positive response in the past twelve months and thus I would suggest that this total incapacity will indeed continue. The patient is certainly limited in his general domestic, social and recreational activities.”[11]
Mr O’Brien had also concluded that the clinical condition of the Plaintiff was stable and that his prognosis would remain quite guarded.
[11]PCB 230
21 In this proceeding, it is not in issue that the Plaintiff has suffered an impairment to his body function, namely his spine, in respect of which the pain and suffering consequences are serious for the purposes of s134AB(16) of the Act. It is accepted that the pain and suffering consequences may fairly be described as being more than significant or marked and as being at least very considerable. Accordingly, it is also not in issue in the proceeding that the Plaintiff’s cervical spine injury is permanent.
22 It is not, however, accepted by the Defendant that the loss of earning consequences of the Plaintiff’s injury are serious for the purposes of the Act.
23 In support of the application, the Plaintiff filed two affidavits sworn by him on 7 April 2014 and 11 December 2015 respectively. In addition, the Plaintiff attended the hearing of the matter, gave evidence and was cross-examined.
24 In the proceeding, the Plaintiff’s credit was not placed in issue and, in my opinion, his evidence may properly be described as both cogent and truthful. When he was called to give evidence, the Plaintiff stated that it was necessary for his wife to read his affidavits to him in order for him to be satisfied that they were accurate and that his reading incapacity was a result of limited education. The Plaintiff stated that he regarded himself as a liability for a potential employer and that he had not applied for any work since leaving the Defendant’s employment in March 2012.[12]
[12]Transcript (“T”) 62
25 During the course of his cross-examination, the Plaintiff stated:
“If I was capable of working I would do something like that, but I’m not capable of doing any work at the moment.”[13]
[13]T65
26 He was further cross-examined about a meeting on 20 February 2014 with Julie Tran, an occupational rehabilitation consultant, engaged by the Defendant and gave the following evidence:
Q.“She says that you told her –‘Upon further discussion, he noted he may consider self-employment, where his family opened another business and he could manage the administrative aspects of the business, such as liaising with suppliers, managing wages, hiring of staff, banking and invoicing duties.’ Did you tell her that; that you might consider self-employment where your family opened another business and you could manage the administrative aspects of the business?---
A.Yeah, that’s if I was capable of working with this injury but at the moment I find it impossible.”[14]
[14]T68–69
27 Potential occupations were put to the Plaintiff during the course of his cross-examination and in each instance the Plaintiff said that he would be unable to perform the specific tasks by reason of his injury.
28 On 14 August 2014, the Plaintiff was examined by Mr Thomas Kossmann, an orthopaedic surgeon, who concluded as follows:
“In my opinion, Mr Care is not able to return to his pre-injury work and it is highly unlikely that he will ever return to any physically demanding work in his lifetime. I believe that Mr Care will regain work capacity at some stage, in particular if his symptoms improve. I recommend vocational assessment to ascertain which work Mr Care might qualify for. However, he will not be able to use his upper extremities in a repetitive manner, work above shoulder or head height. Furthermore, he will not be able to work in any employment where he has to perform continuous rotation of his head or lift heavy items weighing more than 5 kg.”[15]
[15]PCB 129
29 Mr Kossmann further examined the Plaintiff on 11 December 2015 and was provided with a number of medical reports and clinical notes in respect of the Plaintiff, which are listed at page 4 of his report dated 11 December 2015.[16] Following consideration of that material and an examination of the Plaintiff, Mr Kossmann concluded:
[16]PCB 135–136
“Mr Care’s condition has deteriorated and he is not able to return to his pre-injury work. His pain issues have increased. The mobility of his right shoulder has decreased. I believe Mr Care has no work capacity and I believe this incapacity will continue for the foreseeable future.
Mr Care’s prognosis may improve should he undergo adequate treatment. I will give you my opinion regarding his need for further treatment once he has undergone the further investigations as outlined above in the form of an MRI of his right shoulder joint as well as his cervical spine.”[17]
Mr Kossmann repeated this opinion in a further report dated 12 January 2016.
[17]PCB 136
30 The Plaintiff was also examined by Mr David Brownbill, a consultant neurosurgeon, on 25 November 2015. Mr Brownbill concluded that the Plaintiff has impairment of neck function and that:
“He should avoid heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. That will apply to his capacity for employment and also his domestic, recreational and social activities.
As a consequence of his neck injury he is likely to be restricted in relation to heavy lifting, forced spinal mobility, or holding his neck in a fixed position with those restrictions likely to persist into the foreseeable future.
I anticipate that pain will continue in a fluctuating manner but do not anticipate any untoward neurological sequelae.”[18]
[18]PCB 125
31 The Plaintiff has regularly attended Dr Joseph Slesenger, his general practitioner who is a specialist occupational physician, since 2010. On 16 January 2016, Dr Slesenger concluded:
“I have outlined my concerns and whilst Peter does have a theoretical capacity for work with the following restrictions:
·No push, pull, carry or lift over 5kg.
·No forward reaching beyond 50 cm.
·No over shoulder reaching.
·No repetitive neck or shoulder movements.
·4 hours a day, 3 days a week.
·5 minutes rest break an hour.
I am of the opinion that this cannot be translated into practical employment.”[19]
[19]PCB 65
32 During the course of his report, Dr Slesenger considered a number of proposed occupations in respect of the Plaintiff and concluded that the Plaintiff would not be able to perform any of those roles on either a full-time or part-time basis.
33 The Plaintiff was also examined by Dr Helen Sutcliffe, an occupational physician, on 18 September 2014. Dr Sutcliffe also examined a number of other medical reports provided to her and she concluded:
“Taking into account the nature of the injury and also Mr Care’s relatively young age of 46, together with his pre-injury experience in the workforce, his age, education and skills I believe he has no capacity for alternate employment taking all of these features into account.
I believe that this will continue into the foreseeable future.”[20]
She further stated, in respect of whether or not there is a realistic capacity for the Plaintiff to engage in alternative employment:
“I believe that will continue indefinitely and I believe he will not return to employment in open employment into the foreseeable future.”[21]
[20]PCB 155
[21]PCB 155
34 It was submitted on behalf of the Plaintiff that, based on this evidence, the case that the Plaintiff has no current work capacity is a strong one.
35 The Plaintiff was examined on behalf of the Defendant by Dr Michael Bloom, an occupational and environmental physician, on 23 November 2015. Dr Bloom concluded that the Plaintiff does not have the physical capacity for pre-injury physically demanding duties and that he does not have “the safe physical capacity to undertake picking and packing line worker duties”. He further stated:
“I think this man’s prognosis is poor and I doubt that he will ever recover sufficiently to resume the physically demanding activities of a Picker/Packer Store Person.”[22]
[22]DCB 52
36 However, Dr Bloom concluded that within a number of conditions and constraints, the Plaintiff –
“… could probably ultimately work on a full-time basis, but would require a considerable time to allow for adjustment and work hardening and would also require considerable support.”[23]
Dr Bloom went on to state:
“Therefore any employment on suitable duties would have to initially commence on a part-time basis with a graduated increase in hours.[24]
Dr Bloom concluded that the Plaintiff is capable of performing work of a sedentary or semi-sedentary nature and identified work as a courier driver or dispatch clerk as examples of this.
[23]DCB 52
[24]DCB 52
37 In a further report dated 9 January 2016, Dr Bloom reviewed a report of Mr Geoffrey Klug dated 16 September 2015, a Healthework Labour Market Analysis and the Plaintiff’s second affidavit. He did not examine the Plaintiff again himself. Dr Bloom concluded that the Plaintiff had the current capacity for part-time employment as a courier delivering light goods, a rental officer, a security or concierge officer, a hire controller and a fleet scheduler. Dr Bloom concluded that, with the exception of the occupation as a hire controller, the Plaintiff had the physical capacity to engage in the other occupations on a part-time basis, ultimately working up to a full-time basis.
38 The Plaintiff was also examined by Mr Geoffrey Klug, a neurosurgeon, on behalf of the Defendant, on 16 September 2015. In answer to the following question, Mr Klug expressed this opinion:
Q.“If the worker is not fit for pre-injury employment, what medical restrictions should be placed on his employment?---
A.Based on my assessment I believe he could undertake some alternative duties of a non-physically demanding nature. Activities placing undue strain on his neck, particularly on a repetitive basis, would not, in my opinion, be within his capabilities and would be unsuitable.
Q.Do you believe the worker has a permanent incapacity for any and what employment?---
A.I feel it is more probable than not that he has a permanent incapacity in regard to undertaking these particular types of employment.
Q.Does the worker have a capacity for suitable employment?---
A.I did believe that he could undertake some suitable employment. I do believe he could undertake some office type duties for which his background and training would help to some extent.”
Mr Klug went on to state:
“I feel it may be genuinely difficult for him to undertake activities as a warehouse/inventory clerk. There could also be some problems if he was required to work as a warehouse/production manager.”
During the course of his report, Mr Klug also concluded:
“I believe his short-term and long-term prognosis is guarded. It does appear, despite the passage of time, his condition does not appear to improving.”
39 In my opinion, it is not clear from the contents of Dr Bloom’s report how it is suggested that the Plaintiff’s physical condition would improve by a return to work, such that he would be able to engage in full-time employment in the foreseeable future. Furthermore, in my opinion Mr Klug’s opinion regarding the Plaintiff’s work capacity is more qualified than the opinion expressed by Dr Bloom.
40 The medical evidence establishes, and it is not disputed by the Defendant, that the Plaintiff has suffered a permanent serious injury to his cervical spine. For my part, I am unable to accept that an increase in employment load will alleviate his symptoms such that he will be able to engage in full-time employment.
41 Dr Bloom’s opinion that the Plaintiff has a current work capacity is, in my assessment, contrary to the weight of the evidence. In my opinion, it is clear that the Plaintiff has limited educational and vocational skills. He is now 47, and has been working since the age of 15 in unskilled occupations and heavy manual labour. Furthermore, it is plain that the pain and suffering consequences of his cervical spine injury are significantly debilitating, such that he is only capable of engaging in very limited activity, such as assisting on a part-time basis with his step-daughter’s football team. As I observed during the course of the hearing, it would appear that this is one of the few limited activities that the Plaintiff has the capacity to engage in.
42 I am satisfied that the Plaintiff has no current work capacity and the Plaintiff is not fit for suitable employment. Furthermore, I am satisfied that it is not unreasonable for the Plaintiff to have not undertaken vocational retraining which may provide the basis for the Plaintiff to be engaged in suitable employment.
43 It was accepted on behalf of the Plaintiff and the Defendant that in the event I am satisfied that the Plaintiff ought to be granted leave to commence an action for pecuniary loss damages in respect of his cervical spine injury, it is not necessary for me to consider whether leave ought to be granted in respect of the psychological injury relied upon in the application, and I do not propose to do so.
44 I am satisfied that the pain and suffering consequences of the cervical spine injury suffered by the Plaintiff may fairly be described as being more than significant or marked and as being at least very considerable, and I am also satisfied that the loss of earning capacity consequences suffered by the Plaintiff by reason of the cervical spine injury may be fairly described as being more than significant or marked and as being at least very considerable.
45 Accordingly, for the reasons set out above, it follows that the Plaintiff is entitled to the order sought in the application; namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the cervical spine injury relied upon by him in this application.
46 I will hear the parties as to the precise form of order sought in the matter and also upon the issue of costs.
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