Rose Portelli v Qantas Airways Limited (WorkCover)

[2010] VMC 49

IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE

Case No: Y00578295

ROSE PORTELLI

Plaintiff

-and-

QANTAS AIRWAYS LIMITED

MAGISTRATE:

WHERE HELD:

DATE OF HEARING: DATE OF DECISION: CASE MAY BE CITED AS:

MAGISTRATE  B WRIGHT MELBOURNE

05 MARCH  2010

PORTELLI v QANTAS AIRWAYS LIMITED

REASONS FOR DECISION

Defendant

CATCHWORDS:

Accident Compensation - Impairment Benefit- Partial Acceptance of Liability -Whether

Employer Liable For Alleged Injury To Neck- Facts- Accident Compensation Act ss. 98C,

104B

AccidentCompensation -Practice And Procedure- Refusal By Employer To Supply Medical Reports- Claim To "Legal Professional Privilege"- Requirement To Provide Or Serve Reports Pursuant To Statute And/Or Rules- Accident Compensation Act ss. 47,

104B(2)(g),  Magistrates Court Civil Procedure Rules 0.19a.07(3)

APPEARANCES:   Counsel   Solicitors

For the Plaintiff   Ms A Mactiernan   Clark Toop and Taylor

For the Defendant   Mr R Dyer   Sparke Helmore

(Transcribed But Not Recorded By Legal Transcripts)

DECISION

1.HIS HONOUR: Mrs. Portelli is a right-handed 59 year old woman. She seeks to establish liability for an alleged injury to the neck for the purposes of s.98C and s.1048 of the Accident Compensation Act ("the Act").

2.She lodged a claim form seeking such compensation for the neck as well as to the right shoulder and consequential depression. Liability was admitted for

s.98C purposes for those latter two injuries, but specifically denied for the

neck.

3.The Complaint and Summons also sought a copy of a medical report from a psychiatrist, Dr Lester Walton. His report dated 26 May 2008 was referred to in the Notice of Decision and Assessment of the s.98C claim dated 16 June

2008 ("the Notice"), such Notice being on the letterhead of "Sparke Helmore",

the solicitors for Qantas in these proceedings.  Qantas continues to refuse to supply that medical report on the grounds of "legal professional privilege."

4.The s.98C claim form set out that the claim was based on "Repetitive heavy lifting and pushing and pulling trolleys etc. in the course of work." It was common between the parties that after surgery to the right shoulder on 12 July

2005 Mrs. Portelli returned to light duties work in late 2005 and continued to work at such until May 2007 when she stopped working completely.

5.The Statement of Claim in this matter pleads the cause of the injury as being, "Throughout the course of the employment being required to pull, push, lift, bend and twist."

6.        After the evidence from both sides was completed, Counsel for Mrs Portelli

applied to make two amendments to the Statement of Claim, which I refused. Firstly, she sought to rely on s.82(6) of the Act. I disallowed that amendment as no doctor, witness or medical report had addressed the issues of "nature of the employment" or "gradual process". There appeared to be little point in allowing such amendment without recalling all witnesses, which I was not

prepared to allow.

7.         In addition, counsel wanted to amend the Statement of Claim to plead the later

period of light duties as contributing as well to the neck injury.  I did not allow

sucha specific amendment.  I ruled that Mrs. Portelli should be limited to the pleading of injury as set out in the existing Statement of Claim, which reflected the claim form.

8.Such an amendment would go outside the solicitor's Details of Injuries set out in the original claim form and referring to injuries sustained on 1 November

2004 which was the date set out in the claim form as being when she first

became aware of symptoms.  Again, the proposed amendment appeared to take the claim beyond that set out in the claim form itself.

9.        Also, I believed that it was too late to make such an amendment in any event

as Counsel for Qantas had in fact completed his final submissions. Finally,

that issue had not been considered in a number of the medical reports as well. I will further discuss this alternative causative element later in this decision.

10.Mrs Portelli had been employed as a leading hand for Qantas Catering which supplied meals for all the international airlines flying out of Melbourne.  In particular, she worked in the first and business class area.  She had been a leading hand since 1986 in what she called the "international pre-set" area.

11.Substantially she had to check trolleys of units which contained crockery, cutlery, oven dishes for heating food, linen, and glassware before the units would be taken on board an airplane. It was necessary to check for breakages and contents.

12.This required her to handle many drawers of units on each trolley. She would pull them out partially or wholly in order to properly check the contents. The drawers would be at various heights, from ankle height to eye level, which would require her to get her head and body into awkward positions to pull out,

check and put back the drawers.

13.She also had to perform similar checking duties on the catering carts which flight stewards used to deliver meals up and down the aisles on an airplane in first and business class. She and other leading hands would rotate checking duties so that they each would do this task for up to one week per month. She would have to push or pull three empty trolleys at a time which would be held together by a rubber strap. Although the distances were not long, she said

that this was difficult, as the wheels did not move properly over the concrete

floor.

14.When not working in the first and business class area she would also have to line up the empty economy class catering carts as well. There was shift work overall and significant overtime in the earlier years.

15.I accept her work was heavy and repetitive, although the individual weights were not excessive. She had to push or pull trolleys and handle drawers of various catering items, as I set out before. Such work was at or above or below shoulder height and/or alternatively could be at ankle height as well.

16.She suffered a work related left shoulder injury in September 1999 and underwent a decompression repair in May 2000.  After a period of light duties, she returned to normal work.

17.In mid to late 2004, she said that she noticed pain to the right neck and across the top of the right shoulder to its outer edge.  Much was made by the defendant as to the lack of specific and discrete complaints or reports of neck pain, as opposed to right shoulder pain, then or throughout most of 2005.

18.She was referred back to Mr Love who had performed the left shoulder surgery earlier.  He found a full thickness tear to the right rotator cuff and

operated on it on 12 July 2005, liability for which was accepted by Qantas.

19.She returned to work on light duties in November 2005, performing such duties as folding napkins with cutlery.  She had to sit with her neck forward and face downwards to perform the tasks.  She said that she noticed that this would cause pain to her neck.  She requested a change to printing labels

which helped her with that neck pain.

20.       On 7 December 2005 she made a specific complaint of neck pain to Dr Irani

saying that she had, "increased neck and shoulder pain" (emphasis added). There was a reduction in neck movement and tenderness after that date as noted by Dr Irani.  Certainly, the complaints of neck pain continued after that date and she was referred for various radiological tests in mid to late 2006. She was also referred for a follow up examination by Mr Love initially in May

2006 and later to Mr Wilde in August 2006 in respect of the neck.  Mr Love reported that she gave a history that she was "still experiencing" (emphasis added) neck pain after the surgery.  She was later referred to Mr. Kavar, a neurosurgeon.

21.In July 2006 she received a letter from Qantas querying whether she could continue working for Qantas unless she returned to full duties.  She asked her doctor (Dr Irani), to give her a certificate to return to work on full duties. However, this was overruled by Qantas' own doctor who stated she could only work three to four full days per week.  She ceased work in May 2007 because of an inability to cope with neck and right shoulder pain, on the evidence given tome.

22.To a certain extent the issue as to the approximate date of the onset of neck pain is important.  It was the primary submission on behalf of Mrs. Portelli that her neck pain was due to the aggravation of previously asymptomatic degenerative changes in her neck to which her employment, especially prior to

the right shoulder surgery, was a significant contributing factor.

23.Qantas submitted that at best any neck pain was due to naturally occurring neck degeneration with no relationship to her employment.  Alternatively, as

put by Dr Stevenson, a physician on behalf of Qantas , her discomfort was

due more to psychosocial factors.  He independently assessed her for s.98C

purposes, though later was asked to comment on the work relationship of her

neck condition.

24.Mrs. Portelli had support for her neck problem being work related from her treating doctors, being Dr Irani and Mr Kavar.  Mr Wilde and Mr Love really made no specific comment.

25.However, Mrs. Portelli does have support for her claim from two medico-legal specialists, Mr Khan who examined her on behalf of her own solicitors, as well as Mr John O'Brien who examined her on behalf of Qantas.  Mr T.J. Russell,

who also examined her for Qantas, really made no specific comment on the work relationship of the neck condition.  Certainly, her neck pathology is regarded as being mild to moderate degeneration, probably consistent with

her age.

26.       Dr Irani's history and examinations over the years were obviously important.

She was taken through her notes over the years.  She had vague reports of neck pain by Mrs Portelli in September 2002 (on the right side), and January

2005, which was suggested by Counsel for Qantas to be consistent with her

naturallyoccurring degenerative changes, consistent with her age and her employment being irrelevant in that regard.

27.However, it is important to note that Dr Irani pointed out that her complaints of pain over the period prior to the right shoulder surgery were always to the area of the right side of the neck and the top of the right shoulder.

28.Perhaps not surprisingly in view of the specific ultrasound findings of a full thickness tear to her right supraspinatus, medical attention was initially focused on the shoulder itself as the cause of her symptomology in that area.

29.It was really only after the right shoulder surgery and her continuing pain to that area that there were any real investigations in relation to her neck, and specialist opinions sought in that regard.

30.As stated, I accept her evidence that there was in fact neck pain over the same period as the right shoulder pain from at least about mid to late 2004 onwards, if not before.  I accept her as being honest and a genuine witness. She did not exaggerate her complaints and did not try to exaggerate the work process, for example by excessively estimating the weights involved.  She did

31.Her genuineness can also be seen by the fact that after her continuing employment was threatened, she got her doctor to give her a certificate to return to full duties. Dr Irani gave her a certificate for full time work in about July 2006.  It was Qantas' own doctor that overruled that certificate and certified her to return to part-time hours.

32.      I accept her history of neck pain from about at least mid to late 2004. I also

note the medical material that I have already discussed. I find that throughout

the course of her employment the heavy and repetitive nature of her work involving work at vastly different heights requiring at times awkward and difficult positioning of her cervical spine to check the work, at least aggravated the previously asymptomatic degenerative changes to her neck.

33.In fact, a similar work related process took place in relation to her neck as that in respect of her admitted right shoulder condition.

34.       I do not make any finding as to any permanency of that aggravation as this is

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really a matter for a medical panel (see, Ansett v. Taylor [2006] VSCA 171 at

paras. 41 and 46, per Ashley JA).

35.      I am unable to accept the evidence of Dr Peter Stevenson as set out above.

He described himself as being a general physician with previous experience in intensive care units, major trauma and infectious diseases.  His opinion was really gathered from a study of a number of research papers in the area of

neck pain. He really had no independent clinical or treatment experience of people with chronic degeneration or related issues.  Overall, I preferred the opinion of the orthopaedic surgeons, Mr John O'Brien and Mr Khan, in that

36.I would have had difficulty making any finding of work aggravation to her neck degeneration while performing light duties.  It seemed to me that although she had some neck discomfort in looking down at times, this had no role to play in any real exacerbation or aggravation of her neck degenerative changes.

37.       I therefore will make appropriate orders as to liability for the neck injury.

)38.       I now turn to deal with the application by the defendant to provide a copy of the medical report of Dr Lester Walton, psychiatrist, dated 26 May 2008.  That report is referred to in the Notice as to Mrs. Portelli's complete s.98C claim.  It is signed by Mr James Johnson, who describes himself as a partner at Sparke Helmore. "Legal professional privilege" is claimed in respect of that report in

the Notice.

39.The non-provision  of that report is contrary to the spirit, if not the strict application, of Paragraph 3 of the Explanatory Memorandum to the

Impairment s.98C and 98E Protocol, issued by the Victorian WorkCover

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Authority.

40.When this case was opened, Mrs. Portelli's counsel also sought a copy of the medical report of Mr John O'Brien that I have referred to above. As stated, Mr O'Brien had examined and reported on Mrs Portelli at the request of Qantas. Counsel for Qantas refused to supply that further medical report until after I reminded him of Qantas' obligations to supply such reports pursuant to s.47 of the Act and Magistrates' Court Civil Proceedings Rule Order 19A.07(3).

contemplated, and required to be given, by a self-insurer such as Qantas pursuant to s.l04B(2)(g) of the Act, as well as the previously cited section and sub-rule.

42. Despite my referral to s.104B(2)(g), Qantas still refused to provide that report.

It is disappointing that a self insurer would take such a stance in these circumstances.

43.       Of course, Mrs Portelli's solicitors could have, and maybe should have, made

)a complaint about such refusal by the self insurer to the Ombudsman pursuant to s.153 of the Act. In any event, I must now consider the present application.

44.Qantas bases its refusal on "legal professional privilege" despite the express provision in s.104B(2)(g) of the Act. It made no submission beyond reference to the well known decision in Esso v. Federal Commissioner  of Taxation 168

ALR 123. In that case the High Court ruled on the applicability of the

"dominant purpose" test for "legal professional privilege", now enshrined in the

Evidence Act 2008 ss.118 and 119.

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45.       On normal legal principles it is difficult to see how the common law doctrine of

"legal professional privilege" is relevant in these circumstances where there is such a specific and discrete legislative provision in s.1048(2)(g).

46.Even if I am incorrect in this, I am unable to see how the common law doctrine is relevant in this case anyway.  Applying the "dominant purpose" test, I do not find that the seeking of legal advice can have been the "dominant purpose" for the obtaining of that report.

whole person impairment assessment having regard to the fact that liability for a secondary psychiatric injury, pursuant to the s.98C claim for compensation,
was admitted.
48.	Once liability is admitted for any injury, as it was in this case, any court has no
role to play in the later procedural aspects of that claim. Any court is specifically precluded from any further role in that regard (see s.1048(12) of
the Act).
)	49.	Thus, I cannot see how the question of legal advice can arise in those circumstances, as opposed to advice on the quantification of any
compensation entitlement that is not able to be reviewed by any court.
50.	In fact, at one stage counsel for Qantas advanced an argument that as the
court had no further role to play because of that provision (s.1048), tht report was irrelevant to these proceedings. This would seem to militate against any claim for continuing "legal professional privilege". The above legal argument
cannot mean that Mrs Portelli has no right to the medical report anyway.
51.	Of course, a self-insurer can delegate claim management to a person approved by the Victorian WorkCover Authority (see, s.143A), which I
presume in this present case was done in relation to Sparke Helmore
solicitors.
52.	I do not see how delegating claims management to a solicitor would establish or increase any claim to "legal professional privilege". In fact, it may well
decrease such a claim.

of Decision as to the 98C claim, that Sparke Helmore have acted

independently from Qantas. Their situation is analogous to that of an in-house

lawyer and thus any legal advice, if in fact there was any in this case, may well

not be privileged at all (see such cases as Zemenac v. Commonwealth Bank, Federal Court, unreported, delivered 2 October 1997).

54.

For all the above reasons, Qantas is to provide to a copy of the medical report

of Dr Lester Walton dated 26 May 2008 to Mrs. Portelli's solicitors.

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(Discussion ensued as to the form of appropriate orders.)

55.

The orders in this matter will be:-

(1)      The defendant has liability for injury to the neck pursuant to s.98C of

the Act.

(2)      The defendant provide to the Plaintiff a copy of the medical report of Dr

Lester Walton dated 26 May 2008.

(3)      The defendant pay the plaintiff's costs, scale and amount reserved but

to include two hours' conferences, two refreshers, reserved costs and

brief to take judgment, all amounts reserved, with liberty to apply.