Rodney Mill v Victorian WorkCover Authority
[2018] VCC 670
•10 May 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Case No. CI-17-03289
RODNEY MILL Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 10 May 2018
DATE OF JUDGMENT: 10 May 2018
CASE MAY BE CITED AS: Mill v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2018] VCC 670
EX TEMPORE JUDGMENT
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ACCIDENT COMPENSATION – Workers’ compensation – Application for leave to bring common law proceedings – Workplace injury – Spinal injury – Economic loss – Whether the plaintiff has suffered the relevant 40 per cent reduction in work capacity – Leave granted – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 325, 335.
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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr J P Brett QC with Arnold Thomas &
Mr E Makowski Becker Solicitors
For the Defendant Mr D R Myers Russell Kennedy
Lawyers
HIS HONOUR:
By Originating Motion dated 19 July 2017, the plaintiff seeks a certificate pursuant to s. 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’) for economic loss arising out of an industrial accident that occurred on 22 July 2014 when employed by Adgemis Investments Pty Ltd. As a result of falling when working at the Royal Melbourne Hospital, he suffered injury to his upper spine which resulted in major fusion surgery.
As set out in his three affidavits, following the surgery he was able to return to full time work, albeit on restricted duties, as a refrigeration mechanic. He has recently obtained qualifications in that field after coming into it as a late entrant apprentice. He was taking significant pain medication when employed.
Background
In May 2017 the plaintiff reduced his hours of work from five days a week to four days per week, taking each Wednesday off.
On his evidence, in January 2018, he reduced his hours of work from four days per week to three days per week. This proceeding was originally listed for hearing on 29 January 2018. That hearing was vacated so that the plaintiff could provide further material and to allow the defendant to assess his work capacity, and in particular, whether his current work capacity (three days per week) was his maximum work capacity. This was the sole issue in this application.
The plaintiff continues to work three days per week, and the case thus presents a narrow issue for determination, namely whether the plaintiff has in fact suffered a 40 per cent reduction in his earning capacity, as required by s. 325 of the Act, that would provide a basis for an economic loss certificate. The defendant concedes he is entitled to a pain and suffering certificate.
Issues
As stated in his final address, Mr Myers identified that the sole issue is assessing the permanence of his loss of earning capacity. Mr Myers reminded the Court that the plaintiff carries the onus of proof on this point. His submission was that the Court ought to be cynical about the reduction in working hours and days, from four days per week to three days per week, shortly prior to the original hearing date in January this year.
It was further submitted that, on the concessions made by the plaintiff himself under cross-examination, the reduction from four days a week to three days per week was at his instigation, rather than a proper reflection of his capacity, and at the suggestion of his general practitioner and his physiotherapist.
The defendant tendered into evidence a Certificate of Capacity in relation to the plaintiff for the period from 17 September 2017 to 17 March 2018 which stated his capacity was at four days per week. A further Certificate of Capacity for the period of 24 January 2018 to 22 February 2018 stated his capacity was three days per week, with no heavy lifting.
The defendant also tendered into evidence the records of the plaintiff’s physiotherapist and general practitioner. The plaintiff gave evidence that he was seeing the physiotherapist on a regular basis. At one stage he was scheduled to see his physiotherapist every three weeks, but after finding this difficult, appointments were scheduled on a weekly basis from approximately December 2017.
10.In closing addresses, Mr Brett QC, who, with Mr Makowski, appeared for the plaintiff, took the Court to a number of reports and notes from the physiotherapist, in particular in late 2017 and early 2018, indicating that the plaintiff was seeing the physiotherapist complaining of a sore back and neck.
11.On 18 December 2017, the physiotherapist reported that the plaintiff “wants to go down to three days per week”. The plaintiff conceded, under cross-examination, that he suggested this to the physiotherapist.
12.A report by Mr Victor Chang, the plaintiff’s treating physiotherapist, on 16 February 2018 indicated that:
"We have since resumed weekly treatments while Rodney continues to work, but his tolerance to activity is still declining. Consecutive days of work result in an accumulation of pain in his upper back and neck. To allow Rodney to work as effectively and comfortably as possible, he was working three days per week with a day rest in between as suggested by myself and his doctor.
It is clear to me that Rodney's condition would continue to deteriorate should he continue to work on his current line of work, especially if the pain relief treatment is ceased."
13.Mr Myers, in his closing address, made particular reference to the contrast between this report, and an earlier report from Mr Chang received on 31 January 2018 which did not refer to a reduction in the plaintiff’s work hours from four to three days per week. As Mr Myers correctly submitted, this would not provide a basis for a certificate.
14.The plaintiff's case was that he is currently at his limit of capacity for work at three days per week, and this ultimately relies on the Court's acceptance of his credibility.
15.It is easy to deal with this matter by a consideration of the plaintiff's demeanour under cross-examination by experienced counsel. I have had regard to his demeanour, however, in fairness to the parties it is also appropriate to look at the evidence which supports the plaintiff's account that he was working in an effectively sheltered position with his current employer, and the pain that he was experiencing at the end of the day was such that he could not continue to work two consecutive days. Thus, in consultation with his physiotherapist, his work hours were reduced to three days per week, giving him a rest day in between each working day.
16.Pursuant to s. 66A of the Evidence Act 2008 (Vic), contemporaneous statements made in relation to a person’s health, feelings, sensations, intention, knowledge or state of mind are excluded from the hearsay rule. Annotations in medical notes, therefore, become important items of evidence in proof of their content.
17.In the medical records of Dr Grace Diao, the plaintiff’s treating general practitioner, there are a number of references over the period of August to December 2017 indicating that the plaintiff was complaining that his neck was very sore. In the entry for 21 November 2017, Dr Diao records that the plaintiff felt that it was hard to cope at work and felt different once he had physiotherapy.
18.A further entry of Dr Diao on 13 December 2017 indicates that the physiotherapist said “[the plaintiff] should do less job” (sic). The plaintiff gave evidence in support of that proposition – that he was told that he should reduce his hours of work – by his physiotherapist.
19.This entry supports the plaintiff's evidence that he in fact had discussed the issue of working three days a week with his physiotherapist, and the physiotherapist had in fact suggested it to him.
20.The physiotherapist's report, as I have indicated, does indicate that the plaintiff expressed a desire to reduce his hours from four to three days per week of work. Mr Chang, the plaintiff’s physiotherapist, was not called to be cross-examined.
21.The entries do support the plaintiff's account, notwithstanding his concession under cross-examination. It is not unreasonable to accept that a patient is engaged in an iterative process with the medical professionals treating him. An important matter put by Mr Brett was that the medical evidence supports the proposition that the plaintiff's condition was likely to deteriorate, and that this provided an explanation supporting his reduction from, first, full time hours in modified duties to four days per week, and then ultimately from four days per week to three days per week.
Medical evidence regarding deterioration of injury
22.It is appropriate to make reference to the medical evidence supporting the plaintiff's account. Dr David Middleton, occupational health and rehabilitation consultant, in a report dated 30 May 2017, indicates that the plaintiff could not be regarded as work shy, and his work time had been reduced with the advice of his treating doctors. Further, it was his opinion that the hours needed to be monitored to ensure that the symptoms and pain remained manageable, and not impinge on his non-work time, and as such, “the prognosis was guarded”. The opinion further said that there was likely to be a further deterioration greater than would be anticipated in normal age-related processes.
23.Mr Russell Miller, orthopaedic surgeon, in his report dated 8 March 2017 stated:
"It is uncommon for people who have sustained these injuries to be able to return to physical work of this nature. I believe his ability to do so reflects his stoic attitude."
24.At the conclusion of his report, Mr Miller said that he was of the view that “the prognosis for the thoracic spine is only fair”.
25.In his final report dated 13 November 2017, Mr Miller described the diagnosis and prognosis of the cervical spine as "fair/poor”. He noted that he required ongoing conservative treatment, and this may involve measures for pain management and rehabilitation. Further surgery, in Mr Miller’s opinion, was unlikely.
26.As he noted the plaintiff’s reduction in work hours from full time to four days per week, Mr Miller opined that:
“there is a possibility that he may require a further reduction in his working hour during his lifetime. I note that he is currently aged 59.”
27.He further notes, in relation to stabilisation, that “there is no likelihood of improvement” and that there is a “likelihood of medium and long-term deterioration”.
28.In the report of Dr Diao dated 30 April 2018, she notes that the plaintiff is still attending the clinic for pain management and he was capable of four days a week of work provided that there is no heavy lifting over 5 kilograms undertaken by the plaintiff. Dr Diao notes that until recently, he felt constant tiredness, suffered from a sore back and neck stiffness from the heavy work and previous operation.
29.The evidence from Mr Miller and Dr Middleton is consistent with the conclusion that the plaintiff is a stoical individual. He is not work-shy. The evidence also indicates that it was likely that his condition would deteriorate. Thus, on that basis, the medical evidence supports his own evidence that, as a result of the pain associated with working four days per week, he, in consultation with his physiotherapist and general practitioner, would be reduced back to three days per week.
30.In his closing address, Mr Myers relied heavily on the report of Dr Mutton, who indicates that the plaintiff had a capacity for greater employment than at the present time.
31.In response, Mr Brett referred to the same report of Dr Mutton where he opined that “[i]t is likely, given the degeneration noted in the cervical spine that there will be deterioration over time and increasing symptoms”. This is consistent with the other evidence which I have referred to.
Consideration
32.Weighing the evidence of the plaintiff under cross-examination, the contemporaneous records of his continuous complaints while working, to both his general practitioner and physiotherapist, and the correspondence from Mr Chang dated 16 February 2018, that the reduction in work was following consultation between the physiotherapist and the doctor, I am unable to accept the submission of Mr Myers that the plaintiff's reduction in work from four days per week to three days a week was cynical or fortuitous, or designed to provide a basis for a certificate. I found him a truthful witness, who was prepared to make concessions under cross-examination.
33.His evidence, as I have sought to indicate, is supported by the contemporaneous notes of the general practitioner and physiotherapist, that he would suffer a deterioration over time in his work capacity, and is also supported by the medical opinions that I have referred to.
Conclusion
34.Therefore, I accept the credit of the plaintiff and accept his evidence that three days a week is his maximum work capacity, and thus he has suffered the relevant 40 per cent reduction in his earning capacity as required by the Act, that entitles him to a certificate for loss of earning capacity.
35.For all these reasons, I will grant him the relevant certificate and make the appropriate orders.
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