Pyne v Woolworths Limited
[2016] VCC 716
•31 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03216
| SAMANTHA PYNE | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2016 | |
DATE OF JUDGMENT: | 31 May 2016 | |
CASE MAY BE CITED AS: | Pyne v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 716 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pecuniary loss damages, pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms M Pilipasidis | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R Kumar | Sparke Helmore |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pecuniary loss consequences of an injury sustained to her lumbar spine in the course of her employment with the defendant.
2 In the proceeding, the plaintiff relies upon two affidavits sworn 29 January 2015 and 6 May 2016 respectively. In addition, the plaintiff attended the application to be cross-examined and gave viva voce evidence. Otherwise the parties rely upon medical and like reports which they have tendered.
3 No issue is taken by the defendant as to the fact that the plaintiff suffered a compensable injury to her lumbar spine in the course of her employment with the defendant, the consequences of which are appropriately described as meeting the definition of “serious” insofar as they impact upon the plaintiff’s pain and suffering.
4 The content of the plaintiff’s affidavits and her viva voce evidence is a matter of record in this instance and I do not intend to refer to that material specifically other than where necessary to give context to my findings.
5 It is not in issue that the plaintiff underwent spinal surgery at the hands of Mr D’Urso, neurosurgeon, on 11 October 2012; that in January 2013, she returned to modified duties with the defendant; that in July 2014, she underwent a six-week rehabilitation program with the Victoria Rehabilitation Centre in Glen Waverley for pain management; that at the time at which she commenced that program, the plaintiff was working 21.5 hours per week with the defendant, and that the aim of the program was to increase her tolerance for work and the hours she was capable of working.
6 Neither is it in issue that no increase occurred and that the plaintiff continues to work 21.5 hours per week for the defendant in a job described by her as being specifically structured so as to accommodate her tolerance for activity, and which involves her working consecutive days on Monday and Tuesday, not working on Wednesday and working consecutive days on Thursday and Friday.
7 It could not be suggested, in my opinion, that the plaintiff was not well motivated to minimise the impact of her injury upon her insofar as that injury impacts upon her ability to generate income. Her return to work and continuing in her employment is, in my opinion, persuasive evidence of that fact.
8 The issue which arises for my determination in this instance involves two discrete questions:
(i) Firstly – Is the plaintiff’s capacity for work now stabilised at 21.5 hours per week?
(ii) Secondly – Does the plaintiff’s current gross pay rate of $934.00 per week represent the plaintiff’s true post-injury earning capacity in suitable employment? If it does, there is no issue that, should I be satisfied that the plaintiff’s current capacity for work is stabilised, the plaintiff would be entitled to the leave which she seeks in this instance.
9 It is appropriate at this stage that I indicate my strong impression of the plaintiff as she gave evidence, namely that she was a well-motivated, unsophisticated person and a truthful and frank witness. She struck me as a person with a passive personality who tended to be overawed by the court process. In no way did she strike me as a person who would be comfortable in a leadership role within an employment setting.
10 I am satisfied that I should act upon that impression in assessing the mooted employment activities which have been identified in this instance as being possible avenues of suitable alternative employment for the plaintiff, the accuracy of my impression is in turn reinforced by and consistent with:
· the plaintiff’s relatively modest academic achievements which were confined to achieving Year 10, and leaving school halfway through Year 11;
· the plaintiff’s work history of some twenty years in undertaking relatively unskilled employment with the defendant.
11 In making my assessment as to the plaintiff’s capacity for work at the present time and capacity for alternative employment, I do so being satisfied that the plaintiff, in giving her evidence, in no way exaggerated the level symptoms or understated her tolerance for activity, her approach in that regard being consistent with her presentation to the medical practitioners who have opined in the case, none of whom have taken issue with the history provided to them by the plaintiff as to her symptoms or her capacity for activity.
12 The plaintiff’s evidence as to her tolerance for sitting assumes particular relevance to my assessment as to the plaintiff’s capacity for suitable employment given the range of occupations which have been identified as potentially generating, for the plaintiff, an income greater than her current wage.
13 I found the plaintiff’s evidence in the course of the hearing, namely:
Q:“You’ve been sitting in that chair now for about an hour before lunch?‑‑‑
A:Yes.
Q:You are sitting in that chair now for about 15 minutes?‑‑‑
A:Yes ….
Q:What is your back feeling like at the present time?‑‑‑
A:It’s very painful.
Q:With the level of pain you’ve got having sat in the chair for the time you have today, what do you say about your capacity to be able to concentrate for the purpose of any significant retraining?‑‑‑
A:No.
Q:Why not?‑‑‑
A:I don’t know.
Q:Sorry?‑‑‑
A:I don’t know. I’m sorry.
Q:How well are you able to concentrate with the level of pain you’re in now?‑‑‑
A:Not very when your – that’s constantly there. It’s – I’m sorry, I just - I don’t know what I’m saying.”
to be compelling due to:
· the manner in which it was expressed by her; and
· the consistency of the evidence with my expectation as to that tolerance on the basis of the medical evidence as to the plaintiff’s injury and capacity for activity,
14 Further, the plaintiff’s evidence in this regard is consistent with that contained in her recent affidavit and is supported by the comments made by Mr Bittar on this subject at Plaintiff’s Court Book page 39.
15 For these reasons I accept that evidence.
Findings as to the working hours per week which represent the Plaintiff’s post-injury stabilised capacity
16 There is a strong body of current medical evidence which attests to the fact that the plaintiff’s capacity for employment-related activity is now stabilised at 21.5 hours.
17 Mr Iain Kelman, a consultant orthopaedic surgeon who has examined the plaintiff on behalf of the defendant, has opined definitively in support of that position.
18 Dr Wy Loh, the plaintiff’s general practitioner, has expressed an identical opinion, as has Professor Richard Bittar, neurosurgeon.
19 These recent opinions, having been expressed by:
§ Mr Kelman, on 25 May 2015
§ Dr Loh, on 18 February 2016; and
§ Professor Bittar, on 5 February 2016
are, in my opinion, persuasive on this issue.
20 Dr Robyn Horsley, occupational physician, has provided a similar opinion in her report dated 7 Apri 2016 with the proviso that she expressed caution upon the issue as to whether the plaintiff’s tolerance and endurance would decrease with the passage of time. Notwithstanding the fact that in her report, Dr Horsley made reference to the extent of the plaintiff’s depressive condition, as to the expression of this opinion, I am satisfied from the structure of her report that Dr Horsley did so purely taking into account the plaintiff’s physical tolerance for activity.
21 The plaintiff’s evidence that she was struggling to cope with her work, having regard to the fact that her employment duties exacerbated her pain, was not really the subject of challenge and I accept her evidence not only on that issue but also, as I have said, upon the issue of her limited tolerance for sedentary activity.
22 Whilst the defendant, in the course of submissions, drew attention to the fact that the plaintiff presents with comorbidities which impact upon her tolerance for activity, most relevantly, symptoms in her right knee, I am satisfied that in expressing his opinion, Mr Kelman did so, assessing the discrete influence of the plaintiff’s back injury upon her capacity for activity and tolerance for work and that Professor Bittar adopted the same approach.
23 Whilst Dr Loh has been providing medical certificates which describe the plaintiff’s incapacity as being generated by low-back pain and sciatica, left shoulder pain and right knee pain:
· I accept the plaintiff’s evidence that she no longer suffers from symptoms in her left shoulder; and
· It is clear that Dr Loh has opined that the condition in the plaintiff’s right knee has arisen by reason of, and is a direct consequence of, the plaintiff’s limited flexibility by reason of the injury and disability with which she presents in her lumbar spine.
24 For these reasons, I am satisfied that the opinion expressed by Dr Loh that the plaintiff is limited to working 21.5 hours per week, is based upon the decrease in the plaintiff’s industrial capacity which arises directly by reason of the consequences of the compensable injury the subject of this application.
25 For each of these reasons I am satisfied that the plaintiff has established that her permanent retained capacity for suitable employment will not exceed 21.5 hours per week.
Findings as to the range of occupations within the Plaintiff’s post-injury stabilised capacity which represent suitable employment for the Plaintiff
26 In a vocational assessment report dated 11 May 2016, a number of occupations have been identified as giving rise to suitable employment for the plaintiff. I am not satisfied that any of those occupations can be appropriately described as representing suitable employment for the plaintiff for the following reasons:
(i) Occupational health and safety officer
The duties involved in that occupation, which are described as involving activities which include:
§ working with engineers and other professionals to ensure the safety of workplaces;
§ ensuring that the organisation is aware of, and complies with, all legislation relating to its workplace activities and the use of plant, equipment and substances;
§ communicating frequently with management to report on the status of the occupational health and safety program;
§ co-ordinating emergency procedures, mine rescues, fire-fighting and first aid crews; and
§ conducting training sessions for management, supervisors and workers on health and safety practices and legislation
are all activities which bear no relationship to the work that the plaintiff has undertaken to date and would, in my opinion, require a quantum leap for the plaintiff in order manage the intellectual complexity of the work involved and the assertiveness and self-confidence required to undertake that work. For these reasons I am satisfied this occupation does not represent suitable employment for the plaintiff and would be beyond her capacities.
(ii) Personal assistant
The work of a personal assistant involves activities including:
§ typically sedentary activity;
§ the need to prepare agendas or programs for meetings;
§ the organisation of business literature, travel arrangements, conferences, meetings and social functions;
§ to hire and supervise staff;
§ the maintenance of budget and account records;
Given the plaintiff’s age, her work experience, and her tolerance for sitting and maintaining concentration to which I have previously referred, I am satisfied that this occupation does not represent suitable employment for the plaintiff.
(iii) Telephone counsellor
The work of a telephone counsellor requires the plaintiff to demonstrate a high level of cognitive and counselling skills, together with skills in verbal and written communication, administration, assessment, research, information gathering analysis and evaluation report writing, organisational, problem solving and decision-making capabilities. It is also described as being largely sedentary.
I am not satisfied, for the reasons I have previously expressed, that the plaintiff’s personality, work experience or physical capacity is such that work as a telephone counsellor represents suitable employment for her.
27 It follows that I am not satisfied that any of the proposed employment activities identified for the plaintiff in the course of the IPAR Vocational Report of November 2014 in which employment the plaintiff would generate a wage greater than her current wage, represent suitable employment for the plaintiff.
(iv) Enquiry/information clerk
In her report of 11 May 2016, Ms Katrine Green, psychologist and human resources consultant, identifies the occupation of enquiry/information clerk as potentially representing suitable employment for the plaintiff, commenting however that having regard to the activities which may be involved in that work which may include working in a confined space, prolonged standing or sitting and bending, lifting and carrying, were such that Ms Green, in concluding her analysis commented:
“As many of these occupations involve working in a confined space, whilst Ms Pyne is currently working 21.5 hours per week on light duties it would seem that she has flexibility to alter postures as required. As it is likely that this occupational would not allow this it is considered that Ms Pyne should commence her employment in this occupation three days per week four hours per shift. Over time she may be able to gradually increase her hours to those specified in the medical opinions above, that being 21.5 hours per week.”
Having regard to the plaintiff’s evidence as to the effect which her current restricted duties have upon her levels of pain, I am satisfied that it is likely that should the plaintiff be required to undertake duties which involve activities of a more physical nature than those involved in her current employment, it is likely that her tolerance and capacity for work will reduce.
It follows that I am satisfied that it is probable that in employment as an enquiry/information clerk, the plaintiff will be unable to perform those duties for 21.5 hours per week
Further, given the comment made in the most recent IPAR document to the effect that this work would require the plaintiff to constantly sit at a work station and employ mental activities described as necessitating a sound level of recording, organisation and communication skills, I am satisfied that the combination of those activities would be beyond the plaintiff’s physical and cogitative capacity.
28 For the reasons set out above, I am satisfied that the plaintiff’s current protected employment in which she performs modified duties within a timetable created so as to assist her to cope with, and recover on her days off from, the exacerbation of her symptoms by those duties, represents the plaintiff‘s post-injury suitable employment, both with respect to the hours and wage rate involved.
29 It follows from my findings in this instance that plaintiff is entitled to the leave which she seeks.
30 I will allow the parties to draft the appropriate order and will hear the parties as to the order which should be made as to costs in this instance.
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