Pring v Victorian WorkCover Authority
[2017] VCC 719
•8 June 2017
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-00307
| STUART PRING | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 1 and 2 June 2017 | |
DATE OF JUDGMENT: | 8 June 2017 | |
CASE MAY BE CITED AS: | Pring v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 719 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – pain and suffering and loss of earning capacity damages – plaintiff’s work capacity – whether the plaintiff satisfies the test for economic loss pursuant to the Act – plaintiff’s credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G B Wicks | Maurice Blackburn Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr A J Saunders | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him over the course of his employment with G E & D A Kennedy Pty Ltd, but in particular around June 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a)permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the low back.
6 The plaintiff relied upon two affidavits sworn 13 September 2016 and 5 May 2017. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issue
7 Counsel for the defendant informed the Court that the major issue for determination was the plaintiff’s work capacity and whether the plaintiff satisfied the test for economic loss pursuant to the Act. I note that counsel for the defendant also put the plaintiff’s credit in issue.
Surveillance
8 The plaintiff was under surveillance on 8 May 2017 and 22 and 23 May 2017. In cross-examination, the plaintiff was shown the above surveillance, and counsel for the defendant questioned him on its contents. I will now summarise the surveillance and the plaintiff’s evidence.
9 The plaintiff agreed that the surveillance showed him driving at Toyota HiAce commuter minibus as part his employment, which was with the Save the Children Fund.[1] The plaintiff gave evidence that he drives the children to kindergarten three days a week on Monday, Tuesday and Thursday. In the film, he was shown to drive the bus, alight from the bus showing a grimace and rubbing his upper right buttock or lower back as he landed on his right foot. He opened the bus door and watched while the parent and child boarded the bus. He was seen to interact with the parents and their children. The plaintiff’s evidence was that the parents take their children into the bus and buckle the seatbelt. He releases the seatbelts at the kindergarten and assists the children to leave the bus. The plaintiff agreed with counsel for the defendant that the bending into the bus to unbuckle the seatbelts of the children was something he could do.[2]
[1]Transcript (“T”) 16-17
[2]T19
10 The film dated 8 May 2017 shows the plaintiff drive the bus to pick up children. He was seen to get into the driver’s seat, grab onto the handle and pull himself in. Counsel for the defendant submitted the plaintiff did not show any signs of restriction when he climbed into the bus. The plaintiff said the seat was at the right height for him and it was the “perfect vehicle”.[3] He also said he got out of the bus with ease and was very cautious, because he is coming out on his right side.
[3]T20, L6
11 The plaintiff agreed with counsel for the defendant that he was able to socialise and converse with parents and children in the course of his employment.[4]
[4]T20
12 In the film dated 22 May 2017, the plaintiff was shown to kneel into the bus for a period of time. Counsel for the defendant submitted that this did not show the plaintiff to have any restrictions. The plaintiff explained that he kneeled into the bus to ensure all the children were happy with their seats.[5] When he arrived at the Save the Children Early Learning Centre, he agreed with counsel for the defendant that he unbuckled the children’s seatbelts and sometimes helped them with their bags.[6]
[5]T27
[6]T27-28
13 The plaintiff’s evidence was that after the morning run, which finishes at approximately 9.30am, he goes home to rest. He was seen to return to the kindergarten in the afternoon, dropping the children at pre-arranged stops where they would be met by their parents. In the afternoon, he attended the post office and Kentucky Fried Chicken to visit his daughter, who is an employee and purchased food for himself. He was shown to attend the Commonwealth Bank. He walked at measured pace, exhibiting a slight favouring to the right side.
14 The plaintiff agreed with counsel for the defendant that he worked two consecutive days on 22 and 23 May 2017.[7] The plaintiff’s evidence was that he was physically able to perform his job whilst using medication but after the second day, it takes a toll and he “crashes and burns” on the Wednesdays before completing the work on Thursday.[8]
[7]T30
[8]T31
15 Finally, counsel for the defendant asked:
Q:“… So, there’s two days in a row that you do the job. What I’m putting to you, Mr Pring, is that over the course of those days and doing the activities, you appear to be moving freely and you did not have any restrictions bending into the bus, driving the bus, getting out of the bus, things of that nature. Didn’t appear to have any restrictions. Do you agree with that?---
A: I put on a brave face in front of the parents and the children. I don’t want them to see how vulnerable I am.”[9]
[9]T30, L27 – T31, L5
16 Counsel for the defendant submitted that the surveillance threw doubt upon the history and extent of the plaintiff’s incapacity and impairment. He submitted that the plaintiff’s affidavits described the difficulties and pain he experienced whilst at his job. Counsel for the defendant submitted that the plaintiff was seen kneeling in the bus for a period of time to speak with and rearrange the children into their seats, which showed it was quite clear that there were no restrictions upon the plaintiff in performing his job.[10] Further, that given some of the histories given by the plaintiff to medical witnesses, one would expect to see the plaintiff working and have difficulty with getting in and out of the bus, which was absent on the film.[11]
[10]T70-71
[11]T71
17 In respect of the surveillance, counsel for the plaintiff submitted to the Court the following:
· The plaintiff was shown to be doing his job getting in and out of the bus and leaning in and out of the bus, as well as limping from time to time, which was consistent with someone with a back injury;[12]
[12]T83
· To have any evidentiary force, the surveillance should have been shown to the doctors for their comment;[13] and
· The plaintiff was not seen on the film doing anything inconsistent with what he says he can do.[14]
[13]T83
[14]T83-84
18 I accept that the surveillance tendered by the defendant showed the plaintiff performing his work with limited restrictions. Counsel for the defendant submitted that the plaintiff was seen to socialise, in that he was able to interact with both children and parents. Whilst I accept that he was seen talking to parents and their children, which is part of his job, this is quite different to socialising with friends on the weekends.
Credit
19 In addition to the surveillance, counsel for the defendant attacked the plaintiff’s credit in respect of his presentation at medical appointments with Dr Slesenger, Dr Douglas and Dr Bala. I was referred to the reports of a number of the medical witnesses, which stated that the plaintiff was unable to sit on a chair.
20 In April 2017, Dr Slesenger said the plaintiff sat on the floor during the course narrative with crossed legs, stretching his lumbar spine. He was unable to sit on the chair. In cross examination, the plaintiff said:
Q: “… what was the reason why you were unable to sit on a chair during the course of his interview?---
A:Because I had travelled down from East Gippsland prior - the day before, a six-hour public transport trip, and I came in from the city after having another appointment beforehand - before him in St Kilda Road, and then I had to make my way on public transport out to Coolaroo.
Q:So, it was the pain that was doing it, is that right?---
A:Correct. Whenever I do too much activity it aggravates me.
Q:What, you sit on the floor?---
A:Yes. I can kneel. Kneel[ing] is the most comfortable position for me.
Q:When you walk-– he said, ‘He walked slowly with a mild right-sided limp.’ Is that right, you were limping as you went in to see him?
A:Yes.”[15]
[15]T8, L18 – T9, L1
21 In May 2016, Dr John Douglas, psychiatrist, reported that: “During the interview, he preferred not to sit but knelt on the floor.”[16] The plaintiff said he remembered his appointment with Dr Douglas and that the kneeling relieved pain after a six-hour public transport trip.[17]
[16]Defendant’s Court Book (“DCB”) 21
[17]T11
22 In April 2015, Dr Vaidya Bala, consultant physician in rehabilitation medicine, reported:
“Mr Stuart Pring came to my room for an assessment and was kneeling down through the whole process of the assessment, as he was unable to stand or sit in a chair.”[18]
[18]DCB 30
23 In respect of his attendance upon Dr Bala, the plaintiff told the Court that he probably knelt during the interview. He had come from Bairnsdale on public transport. He left home before 5.00am and usually arranges to return the same day, getting home before midnight. He said by the time he arrives in Melbourne, he is very agitated and uncomfortable. He said part of the trip is by train but part is often by coach. He agreed that when he was on the train he could walk around.[19] I accept the plaintiff’s explanation for his unusual presentation at medical appointments.
[19]T9-11
24 I am aware that Mr Doig, orthopaedic surgeon, said of the plaintiff that there was no evidence of abnormal illness behaviour or functional overlay at either examination.[20] This was endorsed by Dr Slesenger, occupational physician, who said “I note the absence of non-organic features on evaluation”.[21]
[20]Plaintiff’s Court Book (“PCB”) 3
[21]PCB 78
25 In considering the plaintiff’s credit, I must consider the evidence as a whole.
26 In my view, in Court, the plaintiff answered questions directly and I took the view that his explanations were believable. I noticed that when he gave evidence, he limped to the witness box but was able to sit throughout his evidence. I accept that the video surveillance did show the plaintiff getting in and out of his bus without limitation, namely, when he alighted from the bus on 8 May 2017, he appeared to grimace and rubbed his upper right buttock as he landed on his right foot. In addition, I did notice that when he was walking around the town at the end of the day, he was not moving as quickly as he was at the beginning of the day. He exhibited a slight favouring to the right side. This is consistent with his evidence that at the end of the day he is very tired. Taking into account all of the evidence, I formed the view that the plaintiff was a credible witness.
The Plaintiff’s background
27 The plaintiff attended school to Year 10. He attempted Year 11 but did not complete that year. The plaintiff’s evidence was that he has difficulty reading and his partner assisted him in reading his affidavits. Counsel for the plaintiff submitted that the plaintiff is functionally illiterate, in the sense that he cannot read, he cannot write a report, he cannot do meaningful office work or a job that requires him to read anything of significance.
28 The plaintiff’s evidence was, the jobs he has performed are essentially labouring jobs. He has a limited education. Even the supermarket work he performed was labouring. He said the assistant produce manager “was a glorified title for a hands-on labouring role”. The courier work he performed was essentially driving and labouring. He believes the driving job he currently performs is about the limit of his physical capacity.
29 The plaintiff agreed that in 2016, he completed a basic computer course which was really only an introduction to Windows X. He failed to obtain any skills in the MS Suite of programs such as Word, Excel, Access, PowerPoint and Publisher. The plaintiff reported to Mr Hartley that his keyboard skills are very slow, utilising only a couple of fingers. I accept that his computer skills can only be described as poor and would not enable him to apply for clerical jobs or jobs requiring computer skills.
30 The plaintiff was cross-examined on his CV. I accept that his employment has been largely labouring work. The plaintiff’s evidence was that the hand-held computer he used in his supermarket work was similar to the hand-held computers one is required to sign when accepting delivery of goods. I accept that the hand-held computer is a very basic tool. Counsel for the defendant submitted that the plaintiff had no difficulty reading his CV. The CV was a document prepared for him based on his work experience. I accept that the plaintiff’s work experience has been manual in nature. The fact that he could read his CV is not a test of his capability as a reader. The plaintiff was familiar with the contents of the document.
The legislative framework
31 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by him arose out of, or in the course of or due to the nature of his employment with the employer;
(b)the injury, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[22]
(c)the consequences to the plaintiff of his impairments to the spine in relation to pain and suffering consequences or loss of earning capacity consequences must be “serious”, that is, “when judged by comparison with other cases in the range of possible impairments … be, fairly described as being more than significant or marked, and as being at least very considerable”.[23]
[22]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[23]Section 134AB(38)(b) and (c)
32 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[24]
(a)that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[25]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[26]
(c)that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative; and
(d)that even with rehabilitation and retraining, he will sustain a loss of 40 per cent or more.[27]
[24]Section 134AB(19)(b) and (38)(e) of the Act
[25]Section 134AB(38)(e)(i)
[26]Section 134AB(38)(e)(ii) of the Act
[27]Section134AB(38)(g) of the Act
33 If the plaintiff satisfies the tests laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[28]
[28]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
34 Accordingly, it is appropriate for me to first look at the various tests for loss of earning capacity, which must be satisfied by the plaintiff in respect to the spine injury.
Loss of earning capacity – the narrative test
35 It was not in issue between the parties that the plaintiff suffered a work-related injury to his spine.
36 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
37 The up-to-date medical evidence of the plaintiff’s capacity for employment was expressed by Dr Slesenger, occupational physician; Mr Brownbill, neurosurgeon, and Mr Doig, orthopaedic surgeon.
38 In April 2017, Dr Slesenger diagnosed mechanical injury to the lumbar spine and aggravation of degenerative disease of the lumbar spine. He formed the opinion that as a result of his low back injury, the plaintiff had the following residual restrictions, namely:
·avoid push, pull, carry or lift over 5 kilograms
·avoid repetitive bending or twisting
·avoid sustained static flexion postures
·avoid exposure to whole body vibration
·avoid prolonged standing
·he should alter his position regularly/job rotation.
39 It was his view that even with a multidisciplinary pain management program, he is likely to have a residual impairment and disability, though he may see some improvement in his ability to adapt to his current impairment and disability. He noted his residential location at Nowa Nowa and said it is likely to affect the availability of treating programs.
40 Dr Slesenger was aware that the plaintiff’s current employment as a driver of a school bus involved working split shifts, four hours a day (two hours in the morning and two hours in the afternoon), working two consecutive days and in total, three days per week. The plaintiff advised that at the end of the working day he is exhausted, and on Wednesdays, he has severe difficulty performing his general household tasks. He noted his use of OxyContin and he was aware of the safety-critical nature of the job tasks that he is currently performing.
41 Dr Slesenger said that the plaintiff is currently working outside his capacity limits. He further stated that given his past employment history; his current residual location (Nowa Nowa); his age of forty-two; the limits of his transferrable skills; his past occupational experience, and his limited computer skills, he was of the opinion that the plaintiff is unlikely to be able to return to work in a role for which he has suitable training and experience and should he become job detached.
42 In April 2017, Mr Brownbill said the plaintiff had sustained an aggravation of the lumbar spine degenerative changes, giving rise to the onset of low-back pain, which has continued in a fluctuating manner. He considered the aggravation of the demonstrated degenerative changes is consistent with occurring as a result of his repetitive work activities with lifting, twisting and repetitive use of a foot pedal. He said he should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He said the above restrictions are permanent. He considered that the probability is the plaintiff would not be able to perform employment activities full time in an ongoing or reliable fashion. He said it was likely that he would be limited to work activities probably of a half-time nature.
43 In December 2016, Mr Doig said the plaintiff’s lower back condition remained unchanged. He said there was no evidence of radiculopathy. He noted the aggravation of the degenerative lumbosacral spine had not ceased and that his condition had failed to improve with time. He said he could not engage in pre-injury duties and it is unlikely to be able to do so in the future. He was aware that the plaintiff was driving a school bus three days per week for four hours per day. He said these duties may be able to be increased if they are available. He said he imposed ongoing 10-kilogram lifting, pushing and pulling restrictions with limited bending, twisting and squatting. He said the plaintiff will need breaks from prolonged sitting, standing and driving. He thought the plaintiff was restricted to four hours per day, three days per week, with alternate days off to recover. Mr Doig said there was no evidence of any abnormal illness behaviour or functional overlay at either examination.
44 Counsel for the defendant submitted that given the plaintiff’s age, he should be able to work 30 hours per week. There was no medical evidence to support this. Given the up-to-date medical evidence of Dr Slesenger, Mr Brownbill and Mr Doig, I accept that somewhere between 12 and 19 hours per week is the plaintiff’s capacity in suitable employment.
45 The plaintiff’s evidence is that he has worked in physical employment since leaving school. He can no longer work in pre-injury employment. To his credit, he has obtained employment driving a bus for kindergarten children. He would like to increase his hours to 15 hours per week.
46 The plaintiff cannot return to pre-injury employment. Given his age of forty-two years, and the fact that there are restrictions imposed on the type of work the plaintiff can obtain, I consider this represents a loss to the plaintiff.
47 I am satisfied the plaintiff’s impairment is permanent. I note that the impairment has remained since 2014. There is no medical evidence to suggest that the impairment will improve. In fact, Mr Doig and Mr Brownbill said the restrictions were permanent and Dr Slesenger noted his poor response to treatment and with alteration in his function in recent years.
48 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
49 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory test – loss of earning capacity
50 The statutory test under the Act requires the worker to have a loss of earning capacity of 40 per cent or more, measured by comparing the worker’s gross income before his injury and after the injury.
51 I accept the plaintiff’s “without injury” earning figure is $51,679.18 gross per annum. Sixty per cent of that figure is $31,007. At the time of his injury, he was earning a weekly figure of $993.84.
52 I accept that the plaintiff can work up to 15 hours per week. If he can work 15 hours per week at the hourly rate of his current pay, $20 per hour, that is $300 per week and annualised, that is $15,600.00.
53 Accordingly, I conclude that the plaintiff has a greater than 40 per cent loss.
54 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g) of the Act.
55 The plaintiff received NES occupational rehabilitation assistance from Nabenet. The plaintiff has undertaken basic computer training, which Mr Hartley, vocational assessor, said provided him with few skills. The plaintiff commenced, but did not complete, a security course. He had problems with travel from his accommodation in Dandenong to the city. In addition, he could not cope with on-foot surveillance required in the course. The only doctors to suggest rehabilitation were Dr Douglas, psychiatrist, and Dr Slesenger. Dr Slesenger thought it might have some improvement in his ability to adapt to his current impairment and disability but, given the plaintiff’s residential location, thought the availability of such programs was unlikely. I am satisfied that the plaintiff has complied with the requirements of retraining and rehabilitation.
56 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive a financial loss of 40 per cent or more.
57 Therefore, I am satisfied the plaintiff has satisfied the 40 per cent requirement and sustained a “serious injury” within s134AB of the Act.
58 The above position is reached purely by reference to the plaintiff’s physical condition; namely, his spine. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
59 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
60 I will hear the parties on costs.
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