Ryan v Victorian WorkCover Authority
[2018] VCC 422
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-00916
| STEPHANIE PATRICIA MARIE RYAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 23 and 24 October 2017 | |
DATE OF JUDGMENT: | 17 April 2018 | |
CASE MAY BE CITED AS: | Ryan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 422 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – loss of earning capacity – plaintiff under twenty-six years of age
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; State of New South Wales v Moss (2000) 54 NSWLR 536;
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J M Mighell QC with Ms M Lang | Slater and Gordon |
| For the Defendant | Mr A Moulds QC with Ms B Myers | Hall & Wilcox |
HIS HONOUR:
1 In this matter, the plaintiff in the action seeks leave to commence common law proceedings against her former employer, Murray Human Services Inc (“the employer”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect to both pain and suffering and loss of earning capacity damages. The application refers to an injury to the plaintiff’s lumbar spine which she sustained in the course of her employment on 4 May 2013. The injury is accepted as being a permanent injury to the lumbar spine caused by the work-related injury.
2 At the hearing, and at the conclusion of all the evidence, it was conceded by the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(37)(a) of the Act with respect to pain and suffering consequences. Paragraph (a) provides that a “serious injury” means “a permanent serious impairment or loss of a body function”.
3 As a consequence of the concession, the defendant admits that the impairment to the plaintiff’s lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and “more than significant or marked”.[1] Further, the concession includes that the consequences of the injury are serious to the plaintiff and the consequences will relate to the pain and suffering such that leave should be granted under that particular head.[2]
[1]See s134AB(3) of the Act
[2]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140
4 In his opening, Senior defence Counsel indicated that the basic issue was whether the plaintiff was able to prove that after the date of hearing, the plaintiff would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
5 It is common ground that the plaintiff was under twenty-six years of age at the time of suffering her injury and, as such, the formula in s134AB(38)(f) of the Act does not apply. This means the Court “may have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”[3]
[3]See Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech (23 May 2000); M Gould
6 In those circumstances, it is common ground between the parties that:
(a)The “three years before and three years’ post-injury period is irrelevant”;
(b)The issue of “suitable employment” is not relevant save for by reference to s134AB(38)(g) of the Act;
(c)A court can have regard to the availability of employment. In this regard, I note that the plaintiff is resident on her parents’ rural property approximately forty-five minutes’ drive from Deniliquin in New South Wales.
Background
7 The plaintiff is aged twenty-two years, having been born in December 1994. She is married and is mother to a baby son born in June 2017.
8 The plaintiff completed Year 11 at high school and thereafter took a traineeship as a disability support worker. She completed a Certificate II in Community Services and a Certificate IV in Disability Services, together with obtaining a Diploma of Management.
9 On or about 1 February 2012, she commenced employment with the employer as a disability support worker. She was employed on a part-time basis to work a minimum of 26.75 hours per week. She also worked an additional ten casual hours per week, with a total average of about $1,700 per fortnight earned.
10 She has sworn that on 4 May 2013:
“I was assisting a client onto a toilet when the client let go of the handrail and fell. He had an Acquired Brain Injury and used a wheelchair to mobilise. I was standing behind him at the time. I caught him and steadied myself taking his weight through my body. There was a sudden pain in my lower back.”[4]
[4]Exhibit “A”, affidavit sworn 2 November 2016, Plaintiff’s Court Book (“PCB”) 7
11 On or about 9 May 2013, the plaintiff consulted her local general practitioner and she was put off work for about one week before returning to work on light duties.[5]
[5]Exhibit “A”, affidavit sworn 2 November 2016, PCB 7
12 On 13 May 2013, the plaintiff commenced physiotherapy at Echuca Physiotherapy, having been referred there by her general practitioner.
13 In or about June 2013, the plaintiff aggravated her back pain while feeding a resident, attended hospital and was prescribed Valium for spasms.[6]
[6]Exhibit “A”, affidavit sworn 2 November 2016, PCB 7
14 On 26 June 2013, the plaintiff was referred by her general practitioner, Dr Daniel Chen, to Dr Simon Locke, a sports and exercise physiologist. He diagnosed:
“Mechanical lumbar spine pain – annular tear at L4-5 disc.”[7]
[7]Exhibit “C”, PCB 42
15 In August 2013, the plaintiff attempted to return to work on light duties doing administrative work. She was working six hours per day, two days per week, but attested that she struggled due to back pain.[8] The plaintiff also suffered a flare-up of back pain on 7 October 2013 and attended hospital.[9]
[8]Exhibit “A”, affidavit sworn 2 November 2016, PCB 8
[9]Exhibit “A”, affidavit sworn 2 November 2016, PCB 8
16 On 11 October 2013, the plaintiff’s general practitioner referred to her orthopaedic surgeon, Mr Stanley Schofield. Mr Schofield organised an upright multi-positional MRI scan dated 2 October 2014.[10] He, in turn, reported:
“The conclusion reached was that there was evidence of pathology arising from L3-4 and L4-5. Both these levels reported a bulging disc with the patient’s spine under load and worse in the standing extension. Views at L3-4 and standing views all in positions of L4-5.”[11]
[10]Exhibit “E”, medical report 27 February 2015, PCB 64
[11]Exhibit “E”, medical report 27 February 2015, PCB 64
17 Mr Schofield further reported:
“The most recent MRI scan in a supine position was reported after the recent investigation on 6 February 2015.”[12]
[12]Exhibit “E”, medical report 27 February 2015, PCB 65
18 This report demonstrated early degenerative change in the facet joints bilaterally at L4-5 and only the right-sided L5-S1. Subtle disc bulges were reported at L3-4, L4-5 and L5-S1. These bulges were insufficient to be causing right sciatica.[13]
[13]Exhibit “E”, medical report 27 February 2015, PCB 65
19 When Mr Schofield examined the plaintiff again on 27 January 2015, he noted:
“[The plaintiff] stated that her condition was slowly increasing with more severe right sciatica and a feeling of weakness, for which she used a crutch to prevent falls. She had a positive impulse, her bowel and bladder functions were normal and her only relief was lying in bed with her knees flexed. She had not been able to work the previous week because of these symptoms.”[14]
[14]Exhibit “E”, medical report 27 February 2015, PCB 66
20 Mr Schofield further stated:
“I have written a letter of request for Professor Bittar to examine your client with regard to the possibility of undergoing surgery.”[15]
[15]Exhibit “E”, medical report 27 February 2015, PCB 66
21 As at 27 February 2015, Mr Schofield’s opinion was:
“Your client’s condition is not stabilised. The most recent investigations have confirmed my view that her major pathology is arising from an injured, bulging L4-5 disc which is the likely cause of her back pain and right sciatica.”[16]
[16]Exhibit “E”, medical report 27 February 2015, PCB 66
22 On 15 July 2015, Mr Schofield reported that Professor Bittar wrote him a letter dated 10 April 2015 stating he was reluctant to consider spinal surgery for a person of such a young age. He noted that the client was about to be seen by a pain specialist in mid-April 2015.[17]
[17]Exhibit “E”, medical report 27 February 2015, PCB 70
23 As at this latter date, Mr Schofield reported:
“There remains a possibility that your client may need to undergo a two-level spinal fusion from L4 to S1.”[18]
[18]Exhibit “E”, medical report 27 February 2015, PCB 71
24 Mr Schofield recommended a conservative approach for the time being.
25 On or about 1 August 2014, the plaintiff moved from Deniliquin to Sunbury with her fiancé. She resided there for about nine or ten months. In that time, she attempted employment consisting of door-to-door sales, clothing retail with “Jacqui E” and also performing office work with “Aidacare”. She states that she was only able to obtain up to twenty-five to thirty hours with Aidacare, but was unable to cope.[19]
[19]Exhibit “A”, affidavit sworn 2 November 2016, PCB 9
26 In early 2015, the plaintiff stated that she started using a walking stick after a flare-up of back pain, with severe pain radiating down the back of her right leg. At this stage, she moved back home to be closer to her mother.[20]
[20]Exhibit “A”, affidavit sworn 2 November 2016, PCB 9
27 On 25 March 2015, the plaintiff consulted Professor Richard Bittar, neurosurgeon, who, in turn, referred her to pain specialist, Dr Gavin Weekes.[21] Professor Bittar noted, on examination, that she had bilateral lumbar paravertebral muscle spasm and tenderness in the lower lumbar region. Professor Bittar reviewed her MRI scan performed in February 2015, which had demonstrated some mild disc bulge at the L4-5 level. He considered her diagnosis was one of injury to the lumbar spine with a differential diagnosis, including facet joint pain. He considered the injury which had occurred at work on 4 May 2013 as being “the dominant contributing factor”.[22]
[21]Exhibit “H”
[22]Exhibit “H”, PCB 84
28 The plaintiff underwent an initial consultation with Dr Weekes on 14 April 2015.[23] On 14 May 2015, she underwent medial branch blocks at the levels L3-L5.[24]
[23]Exhibit “F”
[24]Exhibit “F”, PCB 75
29 In mid-2015, the plaintiff underwent a pain management program at “Physica” three days a week over a six-week period.[25]
[25]Exhibit “F”, PCB 76
30 It was in mid-2015 that she commenced employment at her parents’ plant farm, known as “Roelink Wholesale Nursery”.[26] She performs administrative work in her parents’ business and as at 2 November 2016, she was working fifteen to twenty hours per week. At that stage, she swore:
“I am trying to do 20 hours per week. The position was created for me by my parents. They accommodate my back injury. I can lie down when I need. I do office and reception work. I like to walk around and do my stretches. I don’t believe I can work more than 20 hours a week. I have tried to work more hours but my spasms increase and my leg pain gets crazy. With the increased pain I get frustrated and upset. I earn about $433 net per week. I have a lot of flexibility with my hours. If I’m having a bad day I might only work one hour but they will still pay me for the full shift. I intend to keep working for my parents because of the flexibility I have.”[27]
[26]Exhibit “A”, affidavit sworn 2 November 2016, PCB 10
[27]Exhibit “A”, affidavit sworn 2 November 2016, PCB 11
31 In her second affidavit sworn 4 October 2017,[28] the plaintiff confirmed the birth of her son in June 2017, and stated further:
“When my son was about 9 or 10 weeks old I gradually returned to work in the office. I initially worked about 5 hours per week. I am currently trying to work 15 hours a week. My hours vary depending on my back. The more spasms I experience, the less I do. If I am having a relatively good day I can do more hours. My son is a good day sleeper which enables me to work in the office during the day.”[29]
[28]Exhibit “A”, affidavit sworn 4 October 2017
[29]Exhibit “A”, affidavit sworn 4 October 2017 at paragraph [10], PCB 15
32 Further, the plaintiff swore:
“The office is about 10 metres from the back door of our home. This enables me to go inside and lie down to relieve back pain. I do this several times a day. I lie down for between 5 minutes to an hour depending on the severity of the pain. I continue to be paid $433 net per week by my parents. It is a flat rate even if I don’t do all of my hours. I don’t believe that I would be working if it was not for my parents and the flexibility they offer me.”[30]
[30]Exhibit “A”, affidavit sworn 4 October 2017 at paragraph [12], PCB 15
33 As to the plaintiff’s intentions with respect to her career, had she not been injured, she swore:
“I had my career planned before I injured myself. I planned to continue working as a support worker for five years before hopefully managing my own team. I enjoyed study and was ambitious. Ultimately, I hope to work in management advocating for disability rights. I did a camp called “One and All” in Year 11 which inspired me. I believe that this career is now closed off to me. I couldn’t be a reliable worker. I don’t think I could do set hours. I miss my work. It meant the world to me.”[31]
[31]Exhibit “A”, affidavit sworn 2 November 2016 at paragraph [46], PCB 12
34 In the Flexi Personnel report dated 5 October 2017, it is reported that a “service delivery team leader in Gisborne, Macedon Ranges Shire Council” can earn a salary between $77,436 and $84,419 per annum. In my view, the plaintiff could have achieved at least this level if not injured. A 40 per cent reduction in the bottom of this range would leave a residual figure in the vicinity of $46,000 per annum, on my calculations.
Loss of earning capacity
35 As to the principles applicable concerning loss of earning capacity, I was referred to the judgment of Heydon J (as he then was) in State of New South Wales v Moss,[32] which provides as follows:
[32](2000) 54 NSWLR 536
(a)evidence of past economic loss is some, though not
conclusive, evidence of reduced earning capacity;[33]
[33]State of New South Wales v Moss (ibid) at paragraph [64]
(b)it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [she] is likely to
earn after it;[34]
[34]State of New South Wales v Moss (ibid) at paragraph [66]
(c)where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [she] can perform, a court can, without
specific evidence as to what other persons with that kind of disability can
earn, make a judgement and assessment, on a percentage basis or
otherwise, of the value of the lost capacity;[35]
(d)the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[36]
(e)the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[37]
(f)the task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[38]
[35]State of New South Wales v Moss (ibid) at paragraph [69]
[36]State of New South Wales v Moss (ibid) at paragraph [71]
[37]State of New South Wales v Moss (ibid) at paragraph [72] and [74]
[38]State of New South Wales v Moss (ibid) at paragraph [87]
36 The following evidence concerning loss of earning capacity, in my view, is of relevance in determining whether the plaintiff has suffered a permanent 40 per cent loss:
(a)All the medical evidence from both plaintiff and defendant attests to the fact that the plaintiff has a skillset which meets virtually all the indicia contained in the job descriptions referable to, broadly speaking, administrative work;
(b)At the time of suffering her injury, the plaintiff was engaged as a disability support worker, which involved the physical manipulating of disabled clients in carrying out normal day-to-day activities. It is common ground that she is permanently unfit for such work;
(c)The plaintiff has attempted to perform modified duties with a number of employers, including the employer, prior to commencing employment with her parents. During this period, the plaintiff was able to work to a maximum of thirty hours per week for a short period, but stated that she was not able to cope;
(d)The plaintiff has given evidence before me that she can suffer episodes of back spasms for up to six times per day. Further, she carries out administrative duties from her bed on occasions when she has serious back pain. Further, she is unable to bathe her baby in the usual manner and finds that she has to lie in the bath herself with the baby placed on top of her by her husband in order to effect bathing duties;
(e)The plaintiff swore that prior to her injury, she absolutely had no intention of entering into her parents’ business, and it is only because of her injury that they have created a job for her.
37 The plaintiff impressed me as a witness of truth and I find that, all material times, she was doing her best to relate the consequences of her condition;
38 In view of my acceptance of the plaintiff’s complaints of pain, I have regard to the treating chronic pain specialist, Dr Gavin Weekes, who opined:
“I believe Stephanie to have lumbar spondylosis, with a combination of pain generators, including Myofascial pain, central sensitisation, deconditioning and possibility of contribution from the facet joints or sacroiliac joints.”[39]
[39]Exhibit “F”, PCB 76
And:
“With regard to her capacity for work, I believe Stephanie has returned to the workforce doing 15 hours a week as per my last assessment of Ms Ryan. I do not believe she is capable of doing pre-injury duties at this time. However, her capacity for work in the future, in general and pre-injury work capabilities would be best served by having Ms Ryan assessed by an occupational physician.”[40]
[40]Exhibit “F”, PCB 77
39 The only occupational physician to provide an opinion in this matter is Dr David Middleton, who reported on 22 December 2016 and 11 August 2017.[41] In his latter report, he reported the current symptoms as:
“The main pain remains in the lower back, described as a constant ache with shooting pains down both legs to the mid-calf, maximal on the sides of the thighs, greater on the right leg than the left. Ms Ryan still suffers spasming of the muscles in the lower back that spread into the lower thoracic spine and into both buttocks which she finds debilitating.”[42]
[41]Exhibit “J”, report dated 11 August 2017, PCB 145
[42]Exhibit “J”, report dated 11 August 2017, PCB 145
40 Dr Middleton went on to say:
“It remains my opinion that Ms Ryan suffered a derangement of L3-4 and L4-5 intervertebral discs, progressing to an annular fissure at L4-5, initially with lower back pain and subsequently bilateral discogenic pain down both legs, greater on the right than the left that developed within weeks of the injury … .”[43]
[43]Exhibit “J”, report dated 11 August 2017, PCB 145
41 Further, Dr Middleton stated:
“Addressing exclusively the physical injury and impairment to the total exclusion of any psychological or psychiatric condition, it remains my opinion that Ms Ryan no longer has the same physical capacity to perform her pre-injury duties on a full or part-time basis and that such incapacity is permanent, likely to last for the foreseeable future.”[44]
[44]Exhibit “J”, report dated 11 August 2017, PCB 146
42 Further, Dr Middleton stated:
“In my initial report dated 22 December 2016, I considered all aspects of the definition of suitable employment, current work capacity, not current work capacity as defined under the Act. Noting there has been no significant change in her condition or treatment, it is my opinion that Ms Ryan is permanently incapacitated for any type of employment that has a significant physical/manual component. I recognise that Ms Ryan is in a unique position being employed by her parents who have provided her with the flexibility to enable her to perform office based type work where her attendance at work is entirely up to Ms Ryan, who is able to arrive late or leave early or not arrive at all and prior to and in my initial report was working approximately 15 hours per week. It is my opinion that such flexibility is not realistic and this unique facility would not be available in the real world and to assume so, in my opinion, would be purely theoretical.”[45]
[45]Exhibit “J”, report dated 11 August 2017, PCB 148
Findings
43 Having seen the plaintiff in the witness box and subjected to searching, but fair, cross-examination, I consider that Dr Middleton’s evidence as to her capacity for work is most in accordance with her honest presentation. I accept that her present earnings from her parents are in the vicinity of $460 per week and this most fairly represents the limits of her capacity. Further, the circumstances of her employment, where her parents tolerate periods of incapacity, are not likely to be duplicated on the open market.
44 It is clear from the figures referred to above that her incapacity translates into a greater than 40 per cent loss of earning capacity on a permanent basis and leave will be granted to issue proceedings under both heads.
45 I will hear the parties as to any consequential orders.
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