Robinson v Latrobe Regional Hospital
[2015] VCC 1207
•2 September 2015
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY LAW COURTS COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05367
| CHRISTOPHER ROBINSON | Plaintiff |
| v | |
| LATROBE REGIONAL HOSPITAL | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley Law Courts | |
DATE OF HEARING: | 1 September 2015 | |
DATE OF JUDGMENT: | 2 September 2015 | |
CASE MAY BE CITED AS: | Robinson v Latrobe Regional Hospital | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1207 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to lumbar spine– loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr J F Goldberg | Slater & Gordon |
| For the Defendant | Mr P A Jewell QC with Ms M S Tait | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 4 June 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded.
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. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Having satisfied the narrative requirements to obtain leave, in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
9 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
10 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
11 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
12 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
13 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
14 I am therefore required to determine a “without injury” earnings figure. Counsel agreed that the “without injury” earnings figures is $56,802, or $1,090 per week. Sixty per cent of that sum is $654.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
18 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
19 The plaintiff is presently aged thirty-one, having been born in October 1983. He left school at the end of Year 11 and was an average student.
20 At the age of 18, the plaintiff commenced a retail course at TAFE which he did not complete. He then did a security course in 2001 and obtained his security licence. Between 2001 and 2005, he worked in security at Moe on the weekends and also worked full time as a screen printer.
21 After a brief time working in security in Western Australia, the plaintiff returned to the Latrobe Valley and in mid-2006, he commenced working for the defendant as a security guard and orderly.
22 On the said date, the plaintiff suffered injury to his lower back when a nurse unexpectedly grabbed the legs of a patient the plaintiff was holding with a co-worker and the plaintiff took the full weight of the patient’s body (“the incident”).
23 There is no dispute that the plaintiff suffered a lumbosacral disc injury in the incident. He has undergone back surgery on three occasions with Mr Carey performing nerve root decompression at L5‑S1 in March 2011, a laminectomy and fusion at L4‑S1 on 12 March 2012, and on 7 May 2013, removing metal supports with bone grafting.
24 The plaintiff continues under the care of his general practitioner, Dr Kee. He was admitted to Epworth Rehabilitation, Richmond, under the care of Dr Khan for a pain-management course for a fortnight in September last year.
25 Whilst his medication intake has been under control since that course, the plaintiff still has a significant medication regime, using Norspan patches, Panadol Osteo, usually up to three a day, Endone, 5 milligrams five times a week, and Seroquel for his bipolar disorder, and when feeling particularly stressed and anxious he also takes Valium.[3]
[3]Transcript “T”4
26 Whilst the plaintiff clearly acknowledges improvement in his back and leg pain since surgery, he continues to suffer ongoing significant pain which he rates at 5-6 out of 10 on a better day. He still has intermittent right hip pain of an aching nature and experiences right leg pain rarely.[4] Whilst he may have described his current pain as manageable, that was compared to his level of pain pre surgery.[5] The plaintiff believes his condition has probably remained about the same since the pain management course.[6]
[4]T15
[5]T17
[6]T5
27 As a result of his pain, the plaintiff is restricted in his ability to sit and stand for prolonged periods. If he is seated for half an hour, he gets back pain, a bit of hip pain and some tingling in his right foot. [7] Whilst he can stop his pain increasing by walking around, doing so only controls the pain, it does not stop it.[8] He cannot run.
[7]T7
[8]T11
28 Post-incident, the plaintiff performed light duties such as walking around collecting blood samples.[9] However by November 2011, he was unable to continue working because of increasing low back pain. His employment was terminated by the defendant in January 2012.
[9]T26
29 The plaintiff has not worked since, having received weekly payments until last year. He is currently in receipt of a Disability Support Pension, living at home with his parents.
30 The plaintiff is keen to return to work. He cannot survive financially at the moment.[10] He has made enquiries about part time work such as delivering pamphlets and retail work at Harvey Norman. He looks for work in the newspaper. He believes that he could work two days a week for four hours.[11]
[10]T20
[11]T27
31 The plaintiff would have difficulty attending work on a regular basis because of the unpredictable nature of his back pain which is so severe at least once or twice a week that he cannot get out of bed. [12] Also, his ability to work would be affected by his intake of significant medication which makes him drowsy during the day.
[12]T7
32 Further, the plaintiff’s bipolar condition whilst controlled well on Seroquel, causes him anxiety and a lot of the time he does not want to leave the house and deal with people, thus posing problems for him engaging in any customer service work- a field in which he has not previously worked.[13]
[13]T5; In March 2015, Dr Gill thought there was a possibility the plaintiff had features of possible bi polar affective disorder which appeared to have been very effectively stabilised with a small dosage of Seroquel
33 The plaintiff also described problems with the technical side of some jobs, with his unsuccessful attempt to work for Telstra pre-incident[14] and his attempts to do a real estate course and a course in security and counter-terrorism.[15]
[14]T5
[15]T6
34 The plaintiff explained, because of these various problems, he would not be able to work in the jobs suggested by WorkAble for more than a couple of hours a day.[16]
[16]T8
35 The plaintiff was aware of what was involved in a static security role having done a course in that area in 2012. In addition to problems sitting, he would be required to deal with emergency situations which would be beyond his physical capacity.[17]
[17]T8
36 The plaintiff does not have a great knowledge of computers using basic functions such as Google on his phone. A number of years ago he discussed a computer course with Allianz but was advised it would take too long and funding was not provided.[18] The plaintiff last spoke to Allianz last week and he intends to continue seeking its help to return to work. He definitely is motivated to find some sort of work.[19]
[18]T18
[19]T20
37 The plaintiff has had no experience in retail nor any experience in office and administrative duties.[20]
[20]T9
Medical evidence as to work capacity
38 The consensus of medical opinion is that the plaintiff is unfit for pre injury work
The Plaintiff’s medical evidence
39 The plaintiff’s general practitioner and medico-legal examiners Mr O’Brien and Dr Rowe considered he does not have a capacity for suitable employment.
40 Having last seen the plaintiff on 17 July this year, Dr Kee confirmed the plaintiff continues to suffer significant back pain on a daily basis requiring daily analgesics. Dr Kee noted the plaintiff has been unable to work, and remains so. He thought the plaintiff’s prognosis was guarded, and it was uncertain when he would be fit for a return to work.
41 From a physical perspective, following examination in March 2015, orthopaedic surgeon Mr John O’Brien suggested the plaintiff is now physically incapable of undertaking any form of significant manual work. He considered, given the physical constraints of his chronic pain, the plaintiff would not be able to undertake suitable employment. Given the current clinical condition, Mr O’Brien thought the plaintiff remained totally incapacitated, and it seemed highly possible that would be a long-term situation.
42 Dr Rowe, the only occupational physician involved in this matter, following examination in July 2015, thought the plaintiff was not fit to return to any of the previous jobs he had done, nor could he work in retail. He noted the plaintiff had limited capacity to sit, stand, or walk, and, because of that, none of the suggested positions were suitable.
43 Dr Rowe thought the plaintiff was totally and permanently incapacitated for work. He was not fit for either his previous job or for suitable employment. Dr Rowe considered he may be a candidate eventually for retraining, noting he is only aged thirty-one.
44 Dr Rowe thought the plaintiff was fit for neither part-time nor full-time work, and his incapacity was a permanent one. In his opinion, no one would hire the plaintiff.
45 Mr Carey and Dr Khan considered the plaintiff had a capacity for limited employment, a view shared by Mr Dooley and Dr Love who examined the plaintiff on behalf of the defendant.
46 Reporting in early 2015 after having supervised the plaintiff’s pain management program at Epworth, Dr Khan noted the plaintiff had a basic educational background, having left school at sixteen. He has not done any other work, but his employment opportunities in non-physical roles would be limited by his lack of formal academic qualifications.
47 Having last seen the plaintiff in mid-2014, Mr Carey thought the plaintiff was likely to be precluded or restricted in relation to employment involving bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing and pulling, repetitive or prolonged use of the back and kneeling, squatting or crouching. He thought that such incapacity would persist into the foreseeable future.
The Defendant’s medical evidence
48 In his October 2013 report, his only report postdating the third surgery, Mr Nye, neurosurgeon noted that the plaintiff had completed assessment by NES Services and occupational positions with potential had been identified. He did not consider the plaintiff could resume full-time employment in any of those options; however, at that stage, retraining on a part-time basis might be appropriate. He thought there was potential for re‑engagement in gainful employment six months in the future.
49 Dr Bruce Love, orthopaedic surgeon, examined the plaintiff in May 2014.
50 Dr Love thought the plaintiff now needed to be retrained into a suitable occupation that did not put his lumbar spine at risk. Such training, he thought, may be aimed at finding a suitable, principally sedentary, occupation that does not involve repeated bending and stooping or prolonged standing or heavy lifting.
51 Dr Love thought the plaintiff could not return to pre-injury duties and hours. He had a capacity for work, but it would be principally sedentary in nature. The plaintiff could return to alternative duties, but was not able to work as a security officer. Return to work would be dependent on retraining, and the work ideally ought to be principally sedentary in nature. Those requirements would be indefinite.
52 The alternate duties would bar the plaintiff from engaging in lifting duties, but restriction of hours on a permanent basis would not be necessary. A graded return to hours would be necessary, and retraining would be required.
53 Dr Love thought the plaintiff could return to alternate duties immediately if a suitable occupation could be made available for him. Dr Love thought the NES refresher assessment report was appropriate, and the plaintiff could do monitoring of computer screens forthwith.
54 Michael Dooley, orthopaedic surgeon, examined the plaintiff in May 2015.
55 Mr Dooley believed the plaintiff had the physical capacity to work on a computer and do a course online, and that, from an orthopaedic point of view, ultimately he would have a physical capacity to work in real estate. He thought the plaintiff would have the physical capacity to undertake a Certificate III course in Investigative Services and to work as a circumstance investigator.
56 However, Mr Dooley thought a return to suitable work would need to be on a graduated basis. He believed ultimately the plaintiff would be able to increase his hours towards full-time, but one would have to wait until he began work before making a final statement in that regard.
57 Mr Dooley noted the plaintiff would not be able to carry out heavy physical work or work that involved a lot of bending, lifting and twisting. He would not be able to engage in security work, where physical conflict situations would be expected.
Vocational evidence
The Plaintiff – Flexi Personnel
58 Wage rates on a gross hourly basis were provided as follows: basic clerk, $18.38; static guard, $19.42 and light process worker, $17.79.
The defendant – WorkAble
59 WorkAble carried out a 130‑week vocational assessment in July 2014.
60 The plaintiff then reported as being motivated to find new employment, and advised he had already started to look and apply for work.
61 The following jobs were identified as suitable for the plaintiff:
(i) ICT sales assistant, $1,000 a week;
(ii) Control-room monitoring centre security operator, $1,065 a week;
(iii) Call/contact centre worker, $1,000 a week;
(iv) General clerk, hospital ward, $942 a week;
(v) Customer service officer, such as at V/Line, $960 a week;
(vi) Sales consultant, real estate, $1,000 a week.
Overview
62 I found the plaintiff to be a remarkably honest witness, who freely admitted the nature of his internet use and also the improvement in his condition since surgery. I did not find that he exaggerated his symptoms, and there is no suggestion by any medical practitioner to that effect.
63 Accordingly, I accept the plaintiff’s evidence as to the level of his complaints and restrictions and the problems he would face in doing the suggested jobs or other light work from a physical point of view.
64 Any suggestion of full time light work is unrealistic in these circumstances. Accordingly I prefer the opinion of the plaintiff’s treating doctor who sees him regularly and that of Dr Rowe, the only occupational physician in this case, that the plaintiff does not have a capacity for suitable employment.
65 In my view, the plaintiff does not have the capacity for work other than for a few hours a day a couple of days a week. His constant pain and its unpredictable nature, at times is so severe that he cannot get out of bed. This would make regular attendance at a workplace impossible, even in the lightest of duties.
66 The plaintiff’s ability to function once at work would be significantly compromised by his medication intake which causes drowsiness. He would have difficulty sitting or standing for more than half an hour, even with the ability to change his posture.
67 Having concluded any capacity for employment is minimal, there is no requirement to undertake an analysis of the wage figures provided by both parties and decide which to apply as on either basis, the plaintiff clearly suffers the requisite loss, not being able to earn in excess of $654 per week.
68 I accept that the plaintiff’s condition has been stable since completion of the pain-management course, as medical practitioners have confirmed. There is no suggestion that there will be an improvement in his condition in the future.
69 Mr Khan and Mr Carey thought the plaintiff’s condition had stabilised.
70 Mr O’Brien also regarded the plaintiff’s condition as stable. He described the plaintiff as presenting with well-established chronic post-operative back pain. He would therefore regard the prognosis as poor and considered the chronic pain will indeed continue into the long term.
71 Mr Dooley thought the plaintiff’s condition had stabilised, and that he would continue to note intermittent low back pain and some lower limb pain.
72 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
73 The plaintiff has attempted retraining in a number of fields with little success both before and after the incident.
74 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
75 Taking into account all the evidence, I am satisfied that the plaintiff on a permanent basis will suffer a 40 per cent loss of earning capacity.
76 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
- - -
0
4
0