Pushie v Woolworths Limited
[2013] VCC 863
•20 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01595
| MARJOLEIN PUSHIE | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2013 | |
DATE OF JUDGMENT: | 20 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Pushie v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 863 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Concession that the plaintiff’s pain and suffering consequences are “serious” – whether the plaintiff is fit for suitable employment – whether the plaintiff has undergone rehabilitation and retraining
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment:The plaintiff have leave to bring a proceeding at common law for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Mr A Middleton | Perry Maddox Trollope Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 5 April 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity. The defendant conceded that the pain and suffering consequences contended for by the plaintiff are serious. It contested whether the loss of earning capacity consequences contended for by the plaintiff are serious.
3 Mr M Cvjeticanin of Counsel appeared for the plaintiff, and Mr A Middleton of Counsel appeared for the defendant.
4 The plaintiff submitted that she suffered a serious permanent impairment or loss of the function of her lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 8-18, 28-36, and 38-99: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 9-78: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that she has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that, in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of age when the injury was sustained. In those circumstances, ss(38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff's Background and the Injury
8 The plaintiff was born in November 1958 in Holland. She migrated to Australia with her parents in 1960. She completed Form IV at Doncaster High School, after which she completed a year-long course at Hale Secretarial College which involved shorthand, typing, letter drafting and similar disciplines.
9 The plaintiff married in 1982. She and her husband have four sons who were born in 1984, 1986, 1989 and 1991.
10 At the conclusion of the course at Hale Secretarial College, the plaintiff’s work pattern was as follows:
· She worked in a solicitor's office for about twelve months, mainly typing up mortgages.
· She subsequently travelled around Australia for the next three years. She undertook some itinerant work while travelling.
· On her return to Melbourne, she worked as a clerk with Saab in Coburg for about eighteen months, mainly typing up warranty claims.
· She then worked as a receptionist for Daytronics in Melbourne for about eight months.
· She then worked as a supply officer with Australia Post for between three and a half to four years preparing contracts, typing, answering the telephone and similar work.
· She gave birth to her first son in 1982. She took maternity leave, but did not return to work with Australia Post. She then gave birth to her other three sons. She attempted to sell products through a party plan method, but it was not profitable.
· She moved with her husband and sons to Yea. She secured a number of part-time jobs which included vineyard pruning, tomato pruning and picking, trout farming, school crossing supervisor, a library assistant and as a primary school integration aide.
· She was a library assistant for about three to four months. The work involved covering books, and retrieving books and putting them away.
· She then worked as an integration aide, giving assistance to an intellectually disabled child.
11 It was then that the plaintiff obtained work under contract with the defendant as a casual part-time employee. Although over her period of employment with the defendant she worked under a number of different contracts, essentially she was employed for 24 hours per week.
12 Mr Cvjeticanin provided me with a summary of the plaintiff's loss of earning capacity. At the time the plaintiff suffered injury on 7 May 2008, he submitted that she was in fact working an average of 28.39 hours per week. The number of hours was calculated by dividing her hourly rate of $16.96 into the plaintiff's gross income earned for the year ending 30 June 2008. Mr Middleton accepted that calculation.
The Work Incident
13 On 7 May 2008, the plaintiff was working at the defendant’s supermarket at Chirnside Park performing a temperature check. She walked around a corner in the dairy section. She fell over a safety step which had been left in the aisle. She fell forward, became airborne, hitting her right shoulder on the dairy case, and landed on the ground on her left side. She was immediately aware of pain in her lower back.[4]
[4]PCB 6
The Issues
14 Inherent in the concession that the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back are serious, is an acceptance of the medical evidence and the consequences described by the plaintiff in her affidavits sworn 31 October 2011[5] and 29 April 2013.[6]
[5]PCB 8-18
[6]PCB 20-32
15 The real issue relevant to loss of earning capacity consequences is to be determined by whether I accept that the plaintiff's working history, together with the rehabilitation and retraining she has undertaken, are consistent with a capacity for suitable employment.
16 The latter issue can be collapsed down two fairly simple propositions: firstly, whether the plaintiff’s rehabilitation and retraining would permit her to return to work in a secretarial/receptionist job; secondly, whether the recurrent flare-ups which she has suffered over the last twelve months would mean that, even if she were fit to return to a secretarial or receptionist job, such jobs are not suitable because of the time which the plaintiff would need to take off as a result of the flare-ups before being able to return to work.
17 The extent to which Mr Cvjeticanin and Mr Middleton were able to reduce the issues was commendable, and therefore, probably does not require me to set out much of the medical evidence nor the pain and suffering consequences referred to in the plaintiff's affidavits.
The Medical Evidence
18 The plaintiff first saw Dr Sandrasegaram (referred to as Dr Segar), general practitioner. It would appear that she first saw him on 3 July 2008. He referred her to have physiotherapy. The plaintiff was initially off work for three days and was provided with some painkilling medication. She returned to work on a work plan organised by the defendant, with recommendations from Dr Segar that she not engage in repeated bending, and then she not undertake lifting, pushing or pulling of weights more than 5 kilograms, and that she continue with physiotherapy.[7]
[7]PCB 68
19 The plaintiff returned to see Dr Segar on 4 August 2008. She told him she was not coping with her return to work. He referred her to Mr Whitty, orthopaedic surgeon, who first saw her on 12 August 2008. He reviewed her on 29 April 2009. By the time the plaintiff saw him on this second occasion, she was experiencing persisting pain in her lower back with pain radiating into her left leg and down into her third and fourth toes.
20 Mr Whitty referred the plaintiff to have an MRI scan, which was taken on 12 May 2009. He interpreted the MRI scan to demonstrate that the plaintiff had retrolisthesis and severe disc degeneration at L3-4 with bone oedema, and nerve root impingement at L4-5 with facet joint arthropathy. He diagnosed severe disc degeneration at L3-4 which had been aggravated by the plaintiff's work, and I infer as a consequence of the incident.[8]
[8]PCB 66
21 Mr Whitty referred the plaintiff to Mr Ton, neurosurgeon, who saw the plaintiff some time in June 2009. Mr Ton also obtained a history that the plaintiff was suffering from pain in her lower back with pain radiating down her left leg. He also obtained a history that she was experiencing numbness over the top of her foot and big toe. He diagnosed that the plaintiff was suffering from mechanical lower back pain with pain referred into her left leg on a background of a degenerative disc disease. He advised the plaintiff to persist with her established regime of treatment.[9]
[9]PCB 72
22 The plaintiff then saw Mr Bello, physiotherapist, probably towards the end of 2009. He referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine. The plaintiff first saw him on 12 October 2009. In a report dated 11 December 2009, he was of the opinion that the plaintiff's L4-5 disc level was likely to be symptomatic, and that she had evidence of L5 radicular type problems affecting her left leg.[10] He reviewed the plaintiff on 27 April 2010. It would appear that Dr Thomas organised for the plaintiff to undergo a rehabilitation program at The Victorian Rehabilitation Centre.[11]
[10]PCB 61
[11]PCB 56
23 Dr Thomas provided reports dated 13 April 2011,[12] 15 August 2012[13] and 30 November 2012.[14] His diagnosis of the plaintiff's lower back injury altered to the extent that he considered that the pain in her lower back had a facet joint component to it. He described the pain she was experiencing in her left leg as episodic left sciatica which he believed was due to left L5 nerve root irritation. He considered that restrictions should be placed upon her capacity to work, namely, avoiding bending, lifting and twisting below waist height or above chest height with a lifting maximum of 2 kilograms frequently, and 5 kilograms occasionally. He considered that she could work in the vicinity of 12 hours per week with those restrictions.[15] That must be contrasted with his earlier opinion that she could work up to 24 hours per week.[16]
[12]PCB 56-58
[13]PCB 55
[14]PCB 51-54
[15]PCB 54
[16]PCB 58
24 Dr Thomas referred the plaintiff to Dr Courtney, physician. No report was obtained from Dr Courtney; however, the treatment provided by him is summarised in the reports of Dr Thomas dated 13 April 2011 and 29 July 2012, and also in the reports of Dr Lim, general practitioner, dated 28 March 2011[17] and 7 April 2013.[18]
[17]PCB 47-48
[18]PCB 45-46
25 Dr Courtney performed left-sided L3, L4 and L5 medial branch blocks. It is not clear when that treatment was provided. On 1 October 2010, the plaintiff underwent L3, L4, and L5 radiofrequency denervations on the left side of her lower back. When Dr Thomas reviewed her on 24 March 2011, the plaintiff said the treatment was beneficial. At that time she was using Tramadol and Endone occasionally for pain relief.[19]
[19]PCB 57
26 The plaintiff said that she had a severe flare-up of pain in January 2011. She saw Dr Courtney, who gave her a couple of injections which gave her short-term relief, and then further injections which gave her similar short-term relief.[20] He subsequently gave her a Botox product injection in March 2012 and further radiofrequency denervations at the same time. In about June or July 2012, he administered a Ketamine infusion for pain relief which involved a seven-day stay in hospital. The relieving effect of it wore off after about nine months. On 12 April 2013, he administered a further Ketamine infusion which involved a four-day stay in hospital. In addition to the Ketamine infusions, the plaintiff was relying upon a variety of medication for pain relief, namely, Tramadol, Endone, Panadol, Naprosyn and Diazepam.[21]
[20]PCB 16
[21]PCB 29
The Consequences
27 In her affidavits sworn on 31 October 2011[22] and 29 April 2013,[23] the plaintiff described the following:
[22]PCB 8-18
[23]PCB 28-32
· Having a constant aching pain in her lower back. The pain fluctuates. She would sometimes experience flare-ups which would produce extreme pain about every three weeks. Flare-ups could last an entire day or up to a couple of days.
· The flare-ups could be triggered by sitting, standing, cleaning, vacuuming, making beds and doing other household work.
· In addition to the constant aching pain in her lower back, she has a level of discomfort in her left leg all of the time with frank pain a couple of times a week, usually coinciding with a flare-up of lower back pain.
· The nature and extent of the pain interferes with her capacity to undertake simple domestic chores, sitting and watching a movie, gardening, driving a car for more than thirty or forty minutes, and getting to sleep.[24]
· The plaintiff stopped work altogether in August 2009, and has not been able to return to work since.
· The plaintiff continues to use medication of the kind referred to in paragraph 26 above.
[24]PCB 17-18 and 30-31
28 Mr Middleton submitted that the plaintiff is someone who has a long history of work in secretarial/receptionist type work. He referred to the plaintiff's evidence that she had undertaken rehabilitation and retraining in December 2010 at the Croydon TAFE where she was trained in the use of a software program known as MYOB. He referred to the opinion of Mr Thomas that the plaintiff could work 24 hours a week, and submitted that Dr Thomas’s change of opinion to the plaintiff not being able to work more than 12 hours a week is unsupported by a pathway of reasoning, and therefore, I should reject that opinion in preference for his earlier opinion.
29 Furthermore, Mr Middleton submitted that, if the plaintiff is capable of working 24 hours per week in secretarial/receptionist type work and that is compared to the fact that she was working 28.39 hours per week without injury, she could not succeed in proving the relevant degree of loss to obtain leave to bring a proceeding for loss of earning capacity.
30 Mr Cvjeticanin submitted that I should accept the plaintiff's evidence which he gave in re-examination:
· She had difficulty sitting at a desk for any length of time, and found typing and writing difficult. She needed to be able to move about.
· She would find doing secretarial/receptionist type work difficult because if she needed a break due to lower back pain she would not be able to choose when she took those breaks.
· As an example of the difficulty she has when sitting and applying herself to tasks in a job, the plaintiff said that when she did the MYOB course she was able to sit for an hour, and that she would then have to get up and walk around, and that the intervals between re-seating herself and then having to get up again would become shorter.
· On the occasion when she suffered flare-ups she would probably need to be away from work for the preceding month prior to having further Ketamine infusions, and then would have a hospital stay of up to seven days. She said this was the pattern of disability resulting from such flare-ups.
· In the twelve months preceding the trial of the proceeding she had suffered ten or so serious flare-ups.
31 Mr Middleton undertook an analysis of the medical evidence in which examining medical practitioners had offered opinions regarding the plaintiff's capacity for suitable employment. Specifically, he referred me to:
· Mr Weaver, orthopaedic surgeon, who examined the plaintiff on 28 July 2008, and who appears to have been of the opinion that the plaintiff could return to the work she was doing in 2008;[25]
[25]DCB 12
· Mr Dunin, orthopaedic surgeon, who examined the plaintiff on 16 January 2009, and who was of the opinion that the plaintiff had a partial incapacity for employment and could engage in rehabilitation and retraining in order to return to modified duties;[26]
· Mr Fogarty, orthopaedic surgeon, who examined the plaintiff on 4 October 2010, and was of the opinion that the plaintiff was capable of light part-time work with restrictions;[27] and
· Mr Troy, surgeon, who examined the plaintiff on 7 February 2012, and was of the opinion that the plaintiff was capable of doing office work and doing some work in a supermarket.[28]
[26]DCB 18
[27]DCB 54
[28]DCB 61
32 Mr Middleton was critical of the manner in which some medical practitioners, who supported the plaintiff and claimed that she cannot work in suitable employment, expressed their opinions. I am not persuaded that the criticism is justified. Dr Lim appears to have been the plaintiff's general practitioner for some time. He appears to have been acutely aware of her injury and the treatment provided before he expressed the opinion that the plaintiff could not return to work.[29] Mr O'Brien, orthopaedic surgeon, examined the plaintiff on 5 March 2013. He also found that the plaintiff was unfit for work, and went as far as to say that she is now totally incapacitated for any form of suitable employment.[30] On my reading of his report dated 5 March 2013, it seems to me that he approached the matter in a conventional manner by taking a history, conducting an examination and then making an assessment on the basis of the history and examination.
[29]PCB 45
[30]PCB 42
33 As for the criticism of Dr Thomas’ opinion that the plaintiff could only work 12 hours a week, I am not persuaded that the criticism is justified. It must be remembered that Dr Thomas had treated the plaintiff over a significant period of time. He observed the deterioration in the plaintiff's condition requiring referral to Dr Courtney, and then the more invasive treatment by way of Ketamine infusions requiring admission to a hospital. Tracking the plaintiff's progress through her affidavits and the reports demonstrates to me that there was a deterioration. Furthermore, Dr Thomas was of the opinion that the reference to 12 hours a week would mean that the plaintiff would have to work those hours spread over a working week, that she would have difficulty being tethered to a workstation, that she would need to avoid bending or occupying one posture for a prolonged period of time, and that she would need to be able to stand and move about to avoid her pain worsening.[31]
[31]PCB 54
34 I have looked at the evidence carefully, and have considered the submissions made by Mr Middleton and Mr Cvjeticanin. The conclusion I have reached is that the plaintiff is not fit for suitable employment.
35 I accept the plaintiff's evidence in whole. She suffered a disabling injury to her lower back for which she has had a significant amount of conservative and invasive treatment which has only provided her with symptomatic relief. I also accept the evidence of Dr Lim and Dr Thomas, who I think are in a very good position to determine the plaintiff's capacity for suitable employment. Their long-term treatment of the plaintiff has obviously demonstrated to them that the plaintiff's prospect of being able to work is relatively poor.
36 The fact that the plaintiff has the level of pain which she described and is unable to meet the simple demands of her life socially, domestically and recreationally, as I summarised the same in paragraph 27 above, speaks volumes of the day-to-day disablement endured by the plaintiff. The fact that she has undergone a significant amount of treatment with only symptomatic relief means that in any work for which she might be considered suitable, she will have difficulty being able to sit, stand, walk and occupy other postures which one would need to in a workplace.
37 The foregoing then leads me to the opinion of Dr Thomas which I consider to be very well expressed, very informative and persuasive of the issue that the plaintiff can only work 12 hours per week with restrictions and difficulties described by Dr Thomas. Added to that is the fact that the plaintiff has serious flare-ups of pain which interfere with her capacity to work at all. The fact that she has flare-ups so frequently over a year would add to the plaintiff being able to return to and maintain work as a secretary/receptionist.
38 All in all, it seems to me that to propose that the plaintiff can return to any work for which she is qualified, and in particular, secretarial/reception work, is not open on the evidence which I accept.
39 Mr Middleton lastly submitted that, if I determined that the plaintiff was not fit for suitable employment, I should find that the plaintiff has not engaged in a level of rehabilitation and retraining contemplated by ss(38)(g) of the Act. I do not accept that there is any justification in the submission. It must be remembered that the medical evidence which I accept strongly favours the view that, after having a significant amount of conservative and invasive treatment, the plaintiff has reached a point where there is not much else the medical fraternity seem to be able to offer her, and not much else she can do to further rehabilitate and retrain herself.
Conclusion
40 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
41 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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