Richards v Bruck Textiles Pty Ltd
[2012] VCC 1401
•14 September 2012 (revised 21 September 2012)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00883
| CHRISTOPHER RICHARDS | Plaintiff |
| v. | |
| BRUCK TEXTILES PTY LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 10 & 11 September 2012 | |
DATE OF JUDGMENT: | 14 September 2012 (revised 21 September 2012) | |
CASE MAY BE CITED AS: | Richards v. Bruck Textiles Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1401 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Defendant submitted that application relating to loss of earning capacity was premature – Plaintiff had not participated in rehabilitation program following surgery – Reason for the non-participation was the insurer’s failure over many months to respond to a request to fund the rehabilitation program – Plaintiff had no present capacity for employment – Leave granted to bring a proceeding for loss of earning capacity damages – s. 134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W. R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Christopher Richards was injured in a workplace accident on 4 October 2007. He was working in the printing department of the defendant’s clothing factory. He said this involved “a lot of very heavy work”. On 4 October, he was emptying 25kg bags of chemicals into mixing tanks. As he was “lifting a bag up to put it on the lip of the tank” he said, “I felt sudden severe low back pain and pain in my right leg”.
2 Mr Richards continued at work. After some days the pain worsened. Mr Richards sought medical assistance and he received acupuncture and attended the Ovens Street Medical Group General Practice in Wangaratta and was referred for physiotherapy and prescribed pain relief medication. Mr Richards later suffered flare-ups which affected his ability to work.
3 In February 2010, he was referred to a neurosurgeon, Mr McMahon. On 22 March 2010, Mr McMahon gave Mr Richards an epidural injection and as this had little effect, on 26 May 2010 he performed a right L5-S1 microdiscectomy and a rhizolysis of the right nerve root. Mr Richards initially obtained some relief from the surgery. However, he experienced difficulty at work and his pain increased even though he was off work in early 2011. Mr McMahon repeated the epidural injection in April 2011 although the effect was limited.
4 On 28 January 2012, Mr McMahon performed a further right L5-S1 microdiscectomy and decompression and after two weeks in hospital, Mr Richards was an in-patient for a further two weeks at Ivanhoe Rehabilitation under the care of Dr Terence Lim. Mr Richards’ pain has continued. He has not worked since about Christmas 2010. He has applied for a social security benefit but may not be entitled because his wife is working.
5 Mr Richards is now aged 41 and has three children. He makes an application pursuant to s.134AB of the Accident Compensation Act 1986 for leave to bring a proceeding for both pain and suffering damages and loss of earning capacity damages. The defendant through its senior counsel, Mr Middleton SC, conceded the appropriateness of leave being granted in respect of pain and suffering damages but contested the issue of loss of earning capacity.
6 Mr Middleton informed the Court that the defendant did not propose to cross-examine Mr Richards or to lead any evidence.
Defendant’s submission that application “premature”
7 Mr Middleton submitted that the plaintiff’s application was “premature” by reason of the following matters:
a.Mr Richards had undergone his second back surgery in January 2012;
b.it was always envisaged that Mr Richards would require to undergo a rehabilitation program after the surgery before the extent of his ongoing disability could be determined;
c.although Mr Richards’ doctors had foreshadowed that he would attend a three-week intensive pain management and rehabilitation program, this had not happened;
d.Mr Richards had not satisfied the onus cast upon him to show that he had made all reasonable “attempts to participate in rehabilitation or training” (sub-section 38(g));
e.in the circumstances, his “capacity for any employment, including alternative employment or further or additional employment” could not be determined;
f.accordingly, Mr Richards could not satisfy the requirements of sub-section 38(f) to establish any loss of earning capacity;
g.the application should therefore be dismissed with the consequence that Mr Richards would be barred from pursuing the application in respect of loss of earning capacity.
8 After Mr Middleton had outlined this submission, it became obvious that a critical issue was the reason Mr Richards had not pursued a rehabilitation program following the second operation.
9 The facts are these:
a.on 22 November 2011, Mr Richards’ general practitioner, Dr Traill of the Ovens Medical Group, wrote to the Pain Management Program at the Wodonga Hospital with a copy to the workers’ compensation insurer setting out the history of Mr Richards’ injury and noting that he was “listed for a repeat right S1 nerve root decompression with Mr McMahon on 18 January 2012”. The letter sought an “assessment of his chronic back and leg pain” and his suitability “for your pain management program with a view to getting him into your program in the new year after he has recovered from his surgery in January”;
b.on 16 April 2012, Albury-Wodonga Health addressed a letter to the workers’ compensation insurer noting that Mr Richards “recently underwent screening assessment for participation in an in-patient chronic pain management program having been referred for ongoing problems with chronic low back pain and right leg pain. It was felt that our program would be of benefit to him and I am writing to request approval for funding for him to participate in a program”. The letter set out “a summary of the findings from the assessment, identified goals and information about the program” and enclosed “an itemised quote for the program”. The letter concluded, “As it would be in Christopher’s best interest to do a program as soon as possible, I would appreciate your early consideration of this request”;
c.What followed is set out in a letter sent by Dr Traill to Victorian WorkCover Authority dated 20 August 2012. The letter reads as follows:
“I write to complain of the failure of the insurance company, Gallagher and Basset Services handling Mr Richards’ WorkCover claim to respond to my repeated requests for an answer as to whether they will fund a chronic pain management program for Mr Richards.
Mr Richards has a work-related lumbar disc injury. He was assessed by Albury-Wodonga Health as being suitable for their three-week chronic pain management program in April and a request was mailed to the insurer on 18/04/12 (copy enclosed). No reply has ever been received from the insurer. I have telephoned his case manager, Mr Paul Em on five separate occasions. I initially telephoned him on 04/06/12 and then again on 12/06/12, on both occasions not being able to speak to him. I left messages to ring me back. He never returned my calls. I faxed a letter to Mr Em on 15/06/12 (copy enclosed).
I telephoned Mr Em again on 18/06/12 and spoke with him. He stated he was a new case manager and not familiar with Mr Richards’ case. He stated he would ring me back; he never rang back. I telephoned him again on 16/07/12. On this occasion he stated he would have to check with his supervisor, a lady called Alisha and that she would ring me the next day. I did not receive any telephone call. I telephoned Mr Em yet again on 24/07/12. I was told he was in a training program and that he would return my call later that day. I have received no telephone call.
I find the handling of this request by Gallagher and Bassett Services disgraceful and unacceptable. I have far better things to do than waste my time chasing up the answer to one simple question regarding Mr Richards’ management. It is simple professional courtesy to provide a reply to such request within a timely manner. Further, such a delay compromises the management of Mr Richards’ injury. Four months since the original request and we still have no answer. I request you investigate this matter and ensure the insurer provides me with a prompt answer”.
d. Separately, Mr John McMahon, the neurosurgeon who performed the operation on 28 January 2012, wrote to the insurer on 28 May 2012 reporting on the operation and post-operative treatment. The letter included the following passages, “Mr Richards has been referred for chronic pain management in the Albury-Wodonga region. His ability to return to any form of work activities will depend on his response to ongoing pain management. He may well remain totally incapacitated from performing any form of work activities at least for a further three to four-month period. In the longer term, he may be able to return to modified light work activities. This would include office and desk type work as well as working in a supervisor role. He will very likely require job retraining. Mr Richards’ prognosis is dependent on his response to chronic pain management”;
e. On 24 August 2012, the insurer sent a letter to Mr Richards acknowledging “your letter on 24 August 2012 [presumably referring to Dr Traill’s letter to the WorkCover Authority] requesting funding for pain management programs”. The letter stated, “Your request is now being assessed. Gallagher Bassett will work with you and your treating medical and health practitioners to ensure an appropriate outcome is reached in a timely manner”.
10 Essentially, the defendant’s submission was that the plaintiff’s application should be dismissed because he was proceeding with the present application without pursuing the pain management program, the response by him to which, would determine whether he continued to remain incapacitated from performing work activities or if he would require job retraining and, if so, the nature of that re-training. This submission was made in circumstances where it appeared that the insurer, despite repeated efforts by Mr Richards’ general practitioner, had failed to respond over a period of four months to a request that the plaintiff’s participation in the program be funded.
11 This situation was compounded when, after the case adjourned overnight, Mr Middleton informed the Court that he had been unable to obtain instructions from the insurer as to why a response had not been made to the request, or even when such a response might be expected. Mr Middleton elected to proceed with the hearing of the application without obtaining further instructions.
12 Mr Middleton then sought to tender an affidavit sworn by the defendant’s Human Relations Manager. The only part of the affidavit referred to by Mr Middleton was paragraph 12 which reads, “The applicant remains employed by the respondent, however has not attended work since December 2010. As a consequence of the injuries alleged in the application, he has had periods where he has been absent from work and returned to work as per his return to work plans and offers of suitable employment”.
13 I have already quoted Dr Traill’s and Mr McMahon’s views on the appropriateness of Mr Richards attending the pain management program as an essential step in what will hopefully be his rehabilitation back into the workforce. That was a view supported by the medico-legal examiners, for example, orthopaedic surgeon, Mr Michael Dooley, who said that, when Mr Richards had recovered from his surgery, “essentially he should be able to self-manage his condition”.
14 Mr Dooley, and other doctors, anticipated that it would take some months, perhaps up to 12 months, for Mr Richards to fully recover from the surgery undertaken in January 2012. Mr Middleton’s submission was not however that the application should be adjourned, but that it should be dismissed. In submissions in reply to plaintiff’s counsel, Mr Monti’s final submissions, Mr Middleton suggested that as an alternative to dismissal, the plaintiff himself should have made an application for the adjournment of the present proceeding.
15 In my view, Mr Middleton’s submission in this regard had little merit for the following reasons:
a.Mr Richards was injured in October 2007, almost five years ago;
b.he has not worked since December 2010 and has no current income. His WorkCover payments have ceased and he is not receiving social security;
c.he has had two operations and further invasive treatment. If his condition does not improve, he may need to undergo lumbar fusion surgery;
d.the present proceeding is an interlocutory application seeking leave to bring a proceeding for damages. It should ordinarily be determined in a timely manner;
e.the defendant has conceded that a proceeding should be permitted to be brought for pain and suffering damages arising from the workplace accident;
f.the sole reason Mr Richards has not already completed the pain management course was the insurer’s lack of response to the request for funding made in April 2012.
Whether the plaintiff was capable of engaging in suitable employment
16 In support of the application for leave in respect of loss of earning capacity, plaintiff’s leading counsel, Mr Monti, submitted that the evidence established that:
a. no “suitable employment” was ever likely to be found for Mr Richards;
b. Mr Richards had taken all reasonable steps towards his rehabilitation;
c. Mr Richards was totally and permanently incapacitated and would remain so for the foreseeable future.
17 Mr Richards’ two affidavits were unchallenged. They established the following matters:
a.Mr Richards completed Year 12 at Wangaratta Technical School. He commenced working for the defendant in about 1994/1995 initially as a machine operator and later doing forklift work. He began working in the printing department in 2000;
b.since the accident, Mr Richards has “had back pain and right leg symptoms although it has fluctuated in severity”. He continues “to suffer from constant and ongoing and unremitting low back pain [with] ongoing symptoms in the right leg”;
c.before the accident, he normally worked “38 hours spread over a four-day week”, after the accident he “never returned to working my normal duties without pain”;
d.there were occasional “flare-ups” or exacerbations of pain requiring invasive treatment including surgery;
e.after the first surgery, Mr Richards attempted lighter duties and returned to work. “Because of the increase in pain”, he was “unable to continue the light duties at work”. He “last worked Christmas 2010”.
18 Following the second operation, the defendant had not approached Mr Richards “with respect to any retraining or rehabilitation or any light work”. In about June 2012, Mr Richards attempted voluntary work for Waterwatch taking samples. After a short period, Mr Richards could not continue. He found the work “difficult due to the fact that the medication I am on makes it difficult to concentrate and focus”.
19 Mr Richards’ present medication is “OxyContin 25mg in the morning, 25mg at lunch and 30mg at night. I am also taking Panadol up to eight tablets per day. In addition to the painkillers I am also taking an antidepressant”. This medication has significant side effects. The pain affects Mr Richards’ ability to get to sleep most nights which means that he is “usually feeling very tired and lethargic”.
20 Mr Richards has difficulty driving longer than 45 minutes, sitting or standing for prolonged periods, walking long distances or performing tasks that require “repetitive twisting or bending or heavy lifting or involving going up and down stairs or ladders or kneeling or squatting”.
Medical opinions
21 The present views of Mr Richards’ treating doctors are as follows:
a. Dr Traill, the general practitioner, reported on 23 July 2012. Dr Traill referred to the physical limitations which would affect Mr Richards’ “employment and other activities”. He said, “I expect these incapacities will persist for the foreseeable future”.
He said: “Mr Richards ‘is currently suited to working in administrative or laboratory duties up to four hours per day, three days per week. He should avoid repetitive lifting, bending and twisting activities. He needs to be able to change his posture regularly and take regular rest breaks. Given his employment and educational training, he may need to consider retraining for new employment. I have recommended he have a vocational rehabilitation assessment to ascertain his employment options and look into retraining/further education. In my opinion at present, Mr Richards is presently only suited to part-time employment. At present I think he can manage up to 12 hours per week. I would envisage that if he can manage such part-time work, he should be able to gradually increase his hours over a period of months, potentially up to full-time (38 hours a week). Mr Richards currently has capacity for part-time employment as stated above. In my opinion, his symptoms from his back injury are likely to persist into the foreseeable future and his long-term work capacity is unclear”.
Dr Traill’s prognosis was that Mr Richards “will have some permanent impairment of his capacity to work and carry out some of his routine activities of daily living. I expect he will not ever be able to undertake physically demanding work or activities due to his back injury. I remain hopeful he will return to work initially in a part-time capacity and potentially in a full-time capacity if suitable employment can be found”;
b. Mr McMahon, the treating neurosurgeon, said in a report dated 31 August 2012 that: “Mr Richards is currently totally incapacitated from performing any physical activities and this is very likely to continue into the long-term. He could experience aggravation of his symptoms with activities such as bending, stooping, reaching upwards, lifting and any form of manual labour including walking and sitting for any period of time… There is a possibility that he could return to light work activities such as desk and office type work or working in a supervisory role. This will certainly depend on his responses to pain management and could be three to 12 months before he can return to these type of work activities…”
“It is possible that he will remain totally and permanently incapacitated from returning to the workforce. On the basis of his age, education and previous work experience, he may not be able to find appropriate work activities into the future…”
“If Mr Richards is able to return to the workforce, this would initially be on a part-time basis of approximately six hours per week. He would be able to gradually increase his work hours over a three-month period to normal work hours, however, depending on his symptoms this may not be possible… Mr Richards’ current condition is very likely to continue into the foreseeable future and his overall prognosis is poor…”
“Mr Richards will require ongoing treatment such as chronic pain management, hydrotherapy and physiotherapy. It is likely that he will continue on analgesic, anti-inflammatory and other pain medications. In the future he may need to consider insertion of spinal cord stimulators or morphine pumps if his pain continues to worsens. At the moment there is no plan for any further surgery, however, if his pain worsens then he may need to consider lumbar fusion surgery at the L5-S1 level…”
“Overall, Mr Richards’ prognosis is poor and it is unlikely that his condition would improve in the short to medium term. His response to further pain management will determine his long-term prognosis. However, given that his symptoms have been present for many years, it is unlikely that he will improve even with pain management”.
22 The medico-legal opinions are generally in line with the views of the treating doctors:
a.Dr Andrew Miller, an occupational health consultant, saw the plaintiff at the request of the insurer on 12 January 2012. He said: “The worker is indefinitely incapacitated for his pre-injury duties. The worker is only capable of working with restrictions… The worker should be re-examined two to three months following the proposed surgical procedure in February 2012”;
b.Mr Kenneth Brearley, a consultant orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 27 July 2012. He said that Mr Richards “is not suited for any form of employment at the present time because of his ongoing back and right leg symptoms and because of his intake of pain medication which does interfere with his cognitive abilities… From a theoretical viewpoint he could do some light sedentary work, particularly clerical, however he has no training in administrative work and he has no significant work experience which would help him… His incapacity for employment will last for the foreseeable future. It will last until there is significant improvement in his back and leg symptoms and he is no longer taking strong medication”. Mr Brearley said that the prognosis “is fair only. His back is in a fragile state and unless he exercises care in further employment, there is likely to be further recurrence of his symptoms in full. Given that this is avoided then the outlook is fair. He will be permanently limited to lighter employment and for that he does need vocational guidance and a retraining program”;
c.Mr Michael Dooley, a consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors on 13 August 2012. He said, “It is now around 6 months since Mr Richards’ revision discectomy surgery. It will probably take him a further six months to fully recover from this surgery. Following this period of time, essentially he should be able to self-manage his condition… Mr Richards is 41 years of age. For his overall wellbeing, it is imperative that he returns to suitable work in time… Mr Richards will not be able to engage in employment that involves heavy lifting or regular bending and twisting, etc. His return to work will need to be on a graduated basis. It is too early to estimate whether or not he will be able to return to full-time work”;
d.Mr David Brownbill, a consultant neurosurgeon, saw the plaintiff at the request of his solicitors on 14 August 2012. Mr Brownbill said, “I consider the injury and associated impairment (excluding any functional overlay) suffered by him as a result of the incident is likely to restrict him in relation to employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a marked degree and I consider such incapacity will continue for the foreseeable future”.
“Noting his age of 41 years, his work having always involved heavy physical activity, the demonstrated lumbosacral intervertebral disc derangement and prolapse (for which he has undergone two surgical decompressions) and his described ongoing fluctuating pain (with increase following physical activity), I consider in realistic terms he would, on probability, have difficulty performing any employment for which he is suited in an ongoing or reliable fashion”.
“If he were to attempt a return to work program with restricted duties, he should commence in a graded fashion under close medical supervision. The number of hours he could work would be dictated by his responses to such physical activity. As outlined above, I consider on probability he would have difficulty pursuing any employment for which he is suited in an ongoing or reliable fashion. If he were to continue, I consider it would be on restricted hours… I consider his incapacity for employment is likely to continue for the foreseeable future… He is on multiple strong analgesic preparations and consideration may need to be given to lumbosacral spinal fusion surgery”;
e. Mr Steven Leitl, an orthopaedic surgeon, saw the plaintiff at the request of the worker’s compensation insurer on 29 November 2010 and 16 May 2011. His opinions therefore have little present relevance.
Vocational assessments
23 Two vocational assessments have been obtained:
a. on 17 January 2012, Work Options reported to the insurer. In discussion with Mr Richards they identified two employment options, firstly as “local town bus driver” and secondly, in “warehouse goods receiving and despatch”. The report stated that, “The alternate employment options identified above are possible future options as Mr Richards has no current work capacity and at this stage any work restrictions he may have are unknown. He is scheduled for back surgery on 6 February after which there will be an unknown period of rehabilitation. He has also been referred for chronic pain management program… At this stage, as Mr Richards has no current work capacity to work, he has unknown work potential work restrictions and his scheduled to have back surgery on 6 February 2012 which will be followed by an unknown period of rehabilitation”;
b. on 28 August 2012, Ms Katrine Green, a registered psychologist working in recruitment, training and vocational services, prepared a vocational assessment report for the plaintiff’s solicitors. She examined Mr Richards’ skills and experience and assessed his suitability for various employments, including the two options considered by Work Options. Ms Green’s conclusion was that, “Based on the medical opinions provided, the analysis of the above occupations and the physical demands of the core duties, it is considered that due to Mr Christopher Richards’ current physical capacity, he is unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future”.
24 There seemed to be general agreement among the doctors who later commented on those reports that bus driving was not a suitable job for Mr Richards. Dr Miller considered that employment in warehouse goods receiving and dispatch, would require appropriate restrictions, which may not be consistent with the physical demands of the position.
25 In determining whether Mr Richards has a loss of earning capacity, a comparison must be made with his earnings in the period of three years before and three years after the injury “as most fairly reflect the worker’s earning capacity had the injury not occurred”, with income he currently is earning or is capable of earning in suitable employment whichever is the greater.
26 The schedule of Mr Richards’ earnings shows that in the year to 30 June 2007 (shortly before the accident on 4 October 2007) he earned $37,289 gross. After the accident, Mr Richards performed alternate duties although he ceased work at about Christmas 2010. Since that time, and the cessation of weekly payments, he has not earned any income from employment. Mr Richards said, “The defendant’s WorkCover insurer has terminated my entitlement to weekly payments of compensation effective May 2012 and I am currently not in receipt of any income”.
Conclusions
27 Mr Richards is not in my view capable of earning any income in suitable employment. I reach that conclusion for the following reasons:
a.consideration of the factors set out in the definition of suitable employment and the evidence relating to those matters;
b.the medical opinions of the treating and examining doctors;
c.Mr Richards’ recent attempt to perform voluntary work;
d.the opinions expressed in the vocational assessments.
28 In the circumstances, Mr Richards has a “loss of earning capacity of 40 per centum or more”. Further, I consider that Mr Richards is not disentitled from establishing the loss of earning capacity by reason of sub-section 34(g). Mr Richards has made all reasonable attempts to participate in rehabilitation or retraining.
29 I refer to the following matters:
a.after the first surgery, Mr Richards participated in modified duties under the defendant’s return to work plan;
b.Mr Richards has fully participated in all medical treatment and rehabilitation programs;
c.Mr Richards’ general practitioner and treating neurosurgeon made a timely request for funding for an appropriate pain management program. This effort was frustrated by the inaction of the workers compensation insurer;
d.Mr Richards sought and obtained voluntary work in an appropriate field which he was unable to perform because of his physical circumstances;
e.Mr Richards attended two vocational assessments;
f.Mr Richards remains ready and willing to participate in appropriate rehabilitation or retraining offered by the defendant.
30 In the circumstances, it is appropriate that in addition to the leave conceded for the plaintiff to bring a proceeding for pain and suffering damages, that the plaintiff also have leave to bring a proceeding for loss of earning capacity damages arising from the workplace accident on 4 October 2007.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 14 September 2012 and revised on 21 September 2012.
Dated: 21 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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