Sampson v Cobram District Hospital

[2010] VCC 151

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WANGARATTA
CIVIL DIVISION
DAMAGES LIST

SERIOUS INJURY DIVISION

Case No. CI-09-034575

ANN SAMPSON	Plaintiff
v
COBRAM DISTRICT HOSPITAL	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Wangaratta
DATE OF HEARING:	23 February 2010
DATE OF JUDGMENT:	18 March 2010
CASE MAY BE CITED AS:	Sampson v Cobram District Hospital
MEDIUM NEUTRAL CITATION:	[2010] VCC 0151

REASONS FOR JUDGMENT

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Catchwords: Serious injury application – Concession in relation to pain and suffering

damages – Whether test for loss of earning capacity damages satisfied – After
her injury the plaintiff worked as a real estate sub-agent and mortgage broker
earning substantially more than her pre-accident earnings – Whether this
reflected the plaintiff’s present earning capacity – section 134AB Accident

Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti with	Nevin, Lenny & Gross
Mr G. Pierorazio
For the Defendant	Mr R. Middleton SC with	Wisewould Mahony
Ms J. Forbes
HIS HONOUR:

1           Ann Sampson was working as a Division 2 nurse at the Cobram District Hospital. On 1 January 2004, an incident occurred in the hospital’s aged care facility. A patient fell out of her bed onto the plaintiff and, as a result, she injured her lower back. Before

the accident, the plaintiff was a very active person engaging in a number of vigorous
outdoor pursuits. It has been conceded by the defendant that the plaintiff’s back
injury satisfies paragraph (a) of the narrative test of “serious injury” and she should
have leave to bring a proceeding for pain and suffering damages.

2 The dispute in the present application is whether the plaintiff should also have leave in respect of loss of earning capacity damages. This involves consideration of whether she has satisfied the test in s.134AB(38)(f) of the Accident Compensation Act 1985 and can demonstrate a financial loss of 40 per cent or more when comparing her without injury earning capacity with her present earning capacity in suitable employment.

3           The principal issues for determination in the present case are:

a.	What was the plaintiff’s earnings during the three years before and after her injury?
b.	What earnings during that period most fairly reflect her earning capacity had the injury not occurred?
c.	Has the plaintiff a present capacity to be employed in suitable employment?
d.	What would her earnings be from such employment?
e.	Does a comparison between the relevant without injury earnings and her present capacity show a financial loss of at least 40 per cent?

The plaintiff’s earnings before and after her injury

4           The relevant period to consider the plaintiff’s earnings is from 1 January 2001 to 1 January 2007. It was submitted by defendant’s counsel that the tax returns covering this period showed the relevant gross annual earnings as follows:

Year to 30 June 2001	$10,212
Year to 30 June 2002	$36,442
Year to 30 June 2003	$43,198
Year to 30 June 2004	$18,596
Year to 30 June 2005	$17,632

Year to 30 June 2006 $132,672

Year to 30 June 2007 $66,336

5           Ms Forbes of counsel, who appeared with Mr Middleton SC for the defendant, submitted that the figure of $43,198 gross for the year ended 30 June 2003 most fairly reflected the plaintiff’s earning capacity had the injury not occurred. Mr Monti, who appeared with Mr Pierorazio, for the plaintiff did not demur. I consider that it is appropriate to accept that figure. The plaintiff had only a year or two earlier recommenced work as a Division 2 nurse and was increasing her hours at the time she was injured. Whilst she was working close to fulltime hours at that time, and it is possible she was in fact earning more than she had in the previous year, it is not possible from the evidence to determine whether that was so.

The plaintiff’s present earning capacity

6           The critical question in the present application is whether the plaintiff has a present capacity to be employed in suitable employment. In this regard it is appropriate to examine her work history since the injury and the medical opinions expressed by

treating and examining doctors. The plaintiff has not worked as a nurse since her
injury. There is no dispute on the evidence that she is permanently incapacitated for
her pre-injury employment. After the injury Ms Sampson had the following
employment history.

Until 21 February 2005:	The plaintiff was not in employment.
21 February 2005 – 23 January 2007:	The plaintiff was employed by Neil Kerr, First National Cobram as a real estate sub-agent.
January 2007 – January 2008:	The plaintiff was not in employment.
January 2008 – March 2008:	The plaintiff was employed by Ray Dobson Real Estate in Shepparton as a real estate sub-agent.
March 2008 – September 2008:	The plaintiff was employed by Mortgage First as a mortgage broker.
Since September 2008:	The plaintiff has not been employed.

7           Before examining the plaintiff’s employment subsequent to her injury, it is appropriate to briefly examine the course of her injury and the treatment she has received. The plaintiff has remained under the treatment of the Medical Centre of Numurkah. Soon after the accident, the general practice referred her for radiological examination on 3 February 2004. A CT scan of the lumbar spine showed “moderately severe L4-5

canal stenosis. Large left paracentral L5-S1 disc protrusion displacing left S1 nerve

root”. An MRI of the lumbar spine on 16 February 2004 reported, “No evidence of

central or lateral canal stenosis. Lumbar disc degeneration and mild facet joint
arthritis is noted. There is a small right paracentral posterior L5/SI disc protrusion with

disc material extending superiorly indenting the anterior aspect of the thecal sac”.

8

The plaintiff was referred to an orthopaedic surgeon, Dr Warren Seager, who saw her leg pain” and was “taking up to ten Panadeine Forte per day for this problem”. After receiving the MRI report, Mr Seager told the plaintiff that he “could not see any

correctable lesion on the MRI scan or indeed an explanation for her presenting

complaints”. This opinion was confirmed by Mr M.P. Falkenberg, an orthopaedic
surgeon, who saw the plaintiff on 15 March 2004. He said that, “With regard to the

structure of her axial spine, it is pretty dreadful in the lower lumbar area and a good

explanation for her back pain. I think the prognosis for returning to work is poor”. He
suggested “non-orthopaedic” management of her condition.

9           The plaintiff was also referred to Dr Ron Brooder, a consultant neurologist, whom she saw in March 2004. Dr Brooder considered that the plaintiff’s “main problem would

appear to be related to the L5/S1 intervertebral disc protrusion and the symptoms
extending into her left leg represent referred symptoms from the lumbosacral region

and a probable associated facet joint dysfunction”. He suggested conservative
management of the plaintiff’s condition.

10         In October 2004, the plaintiff saw Dr Brett Todhunter, a specialist in anaesthesia and pain medicine. He considered that the widespread disc degeneration shown on the MRI scan was the explanation for her pain. He noted that the plaintiff was taking MS Contin, 10mg twice a day. He replaced this with a prescription for Oxycontin and suggested she participate in a pain management program.

11 orthopaedic surgeon, who suggested that the plaintiff might consider surgery. He
reported that the plaintiff suffered from a “chronic pain syndrome most likely the result

In March 2007, the plaintiff was referred to Dr Michael Brighton-Knight, an plaintiff “may benefit from surgery but she doesn’t have a condition that mandates a surgical solution”. An MRI of the lumbar spine on 28 March 2007 noted generalised disc bulges at L4/5 and L5/S1, the latter with a central disc protrusion which abutted the thecal sac.

12         Between 13 and 31 August 2007, the plaintiff attended a pain management program with the Wodonga Regional Health Service. Before undertaking the program, the plaintiff stopped her narcotic medication. She received a positive report in relation to her participation in the program. A review report noted “significant improvements in physical and functional ability”.

13         The plaintiff was referred for further advice to Mr Peter Turner, an orthopaedic surgeon, who saw her in March 2008. He noted that the plaintiff was “currently managing with Panadol Osteo”. He thought the “exact source” of the plaintiff’s pain

was uncertain and the overall chances of surgery helping the plaintiff were “fairly
small”. In April 2009, the plaintiff was primarily relying upon Panadol Osteo for pain
relief although she was also prescribed Oxycontin “one at night as needed”.

14         In September and October 2008, Dr Todhunter administered facet joint injections which resulted in a some temporary relief of pain. Radio frequency facet joint denervation at the L4 to S1 levels on 5 August 2009 “did not reduce her pain”.

15         The plaintiff’s general practitioner, Dr Jason Spencer, expressed the view, in a report to the plaintiff’s solicitors on 1 February 2010, that the plaintiff had “developed

chronic low back pain, her pain is ongoing and she is limited in her functional

capacity”. Dr Spencer’s opinion was that the “prognosis is fairly poor. I believe it is

very unlikely that she will ever return to her pre-injury work duties and in fact I feel

she is unlikely to return to work at all”.

16         Dr Todhunter diagnosed “mechanical low back pain of discogenic origin, neuropathic

leg pain in the absence of neurological compression [and] significant psychosocial

disruption secondary to her pain”. He noted the efforts taken to manage the plaintiff’s
“high ongoing pain levels” and stated his opinion that the plaintiff “will have ongoing
lumbosacral pain and leg pain”. His view was that, “It is evident that she is not totally

incapacitated but is partly incapacitated in my opinion limited by the level of her pain

that comes on with activity”.

17         Dr Todhunter said that although “it is impossible to be specific as to how many hours

a week she could possibly work on a part-time basis but in my opinion it would be
reasonable to say that she is unlikely to re-enter the workforce in any capacity in
terms of being able to work more than eight hours per week in total. I believe this will

be the case indefinitely”. Dr Todd-Hunter discussed further treatment options but considered “more potent opiates if she became increasingly disabled as this is a simple and essentially a safe option”.

18         It is appropriate to consider the medico-legal opinions:

a.

Mr Peter Scott, a senior consultant surgeon, saw the plaintiff at the request of the first examination, Mr Scott’s view was that the plaintiff “sustained an acute

back strain or musculo-ligamentous injury, together with aggravation of
underlying pre-existing multi-level degenerative processes in the lumbar

sacral spine as a result of a work-related incident on 1 January 2004”. At that time he did not consider she had “a capacity for any form of employment” and he was uncertain as to how long she would be unfit for work.

In 2007, Mr Scott considered that the plaintiff’s condition had been
“complicated by the development of an anxious, nervous depressive response
requiring the use of drugs for a major depressive disorder”. He thought her
“symptoms appear to be worsening, particularly those of a non-organic

nature”. He diagnosed “chronic low back pain, anxiety, depression and

frustration aggravated multi-level disc degenerative processes and recurring

lumbosacral nerve root irritation”. He considered that “the worker has no

capacity to work at this point in time”.

b. Mr Anthony Buzzard examined the plaintiff at the request of the workers compensation insurer on 6 December 2006. He thought the plaintiff’s history was “consistent with a soft tissue injury to the low back region as a result of the accident of 1/1/04” although he thought the “involvement of the whole of

her left lower extremity with symptoms does in its own right suggest functional

overlay”. He considered that the plaintiff’s “back condition (from a purely physical perspective) is not likely to change in the future”.
c.	Mr Kenneth Brearley, an orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 30 May 2007. He diagnosed “degenerative disc disease of
the lumbosacral spine, particularly noted at L5/S1 but with similar degenerative changes at the level above that, ie. at L4/5 and L3/4. These changes had been materially aggravated by the accident which occurred on 1 January 2004. It is probable that at that time she suffered intra-disc rupture of the L5/S1 disc and she has had mechanical lumbar back pain ever since
that time”. He considered the plaintiff “completely incapacitated for her pre- injury employment” and “currently she is not suited for any employment having regard to her incapacity resulting from the back injury and impairment”.

Mr Brearley further stated: “She is having such level of pain that she is not

able to carry out any fulltime or part-time employment. If per chance she
were considered suitable for some part-time employment she would be able
to work only three hours per day, three days a week. She would be quite
unreliable in attendance because of exacerbations of her back pain from time
to time. She would not be productive. There is in fact no possibility that any
employer will offer her employment at the present time or in the foreseeable

future”. Mr Brearley considered the possibility of “some improvement in her

condition when she attends the pain management clinic. It may be sufficient for her [to] resume her work as a real estate sales person in several months time, however she will continue to have very considerable pain and suffering

as a result of the back condition”.

d.	Mr Michael Shannon, an orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitors on 18 August 2009. He considered that the plaintiff was “suffering from significant pre-existing and longstanding multilevel disc degeneration” and that “it is consistent that the injury as described has
resulted in aggravation and possibly acceleration of the pre-existing degenerative change although it does not appear that she sustained a
significant disc prolapse”. He thought the plaintiff “capable of light work including work as a financial advisor and possibly in real estate”. Mr Shannon expressed the view that “there is a psychological reaction which is assessed

by your psychiatrist but the presentation in physical terms was consistent with

the nature of the condition as identified on radiology”.

e.	Mr John O’Brien, an orthopaedic surgeon, saw the plaintiff at the request of her solicitors on 9 December 2009. He noted that, “Currently Mrs Sampson
describes constant pain in her low back radiating to the left buttock with subsequently pain radiating down the anterior aspect of the left thigh and shin
to the dorsum of the left foot”. His examination demonstrated “subjective signs basically related to restriction of lumbar movement”. He considered that the plaintiff’s “early pathology is related to probable aggravation of pre-
existing lumbar spondylosis with the pain being predominantly of discogenic origin, although with the level of specific pathology I do not think could be specifically defined. With the passage of time, however, the patient has certainly developed chronic pain which I would suggest is now influenced by psychosocial factors and I would consider it would now be reasonable to

define the diagnosis as that of a Chronic Pain Syndrome”.

Mr O’Brien considered the plaintiff’s prognosis to be “poor”. He noted that the
plaintiff presented “with ongoing disability associated with chronic pain. The

patient was in fact unable to return to her pre-injury occupation and this will remain a permanent situation. The plaintiff reports subsequently obtaining employment with modified light duties but even this resulted in major

problems, the patient being unable to cope. I would suggest this indicates
that from a physical perspective the patient is unable to pursue even modified
duties. I would conclude that the patient is totally incapacitated and as this is
now a permanent situation the patient will not return to any form of gainful

employment”.

Mr O’Brien noted that the plaintiff had “recommenced employment as a real

estate agent which she continued for about two years but had difficulty coping

due to the aggravation of pain”. Mr O’Brien then referred to the plaintiff’s
subsequent employment “as a finance broker for some three days per week,

however when she increased her hours the pain became more severe and she was again unable to cope, ceasing work in August 2008. In fact due to her inability to cope the patient stated that at about that time she attempted

suicide with an overdose of tablets”.

f. The plaintiff was examined by a consultant psychiatrist, Professor Richard Ball, at the request of the workers compensation insurer on 15 April 2004. Professor Ball diagnosed the plaintiff as suffering “an adjustment reaction with

depression and anxiety to her physical injuries and their consequences. He

said that the plaintiff’s prognosis essentially as related to the physical situation

and possible improvement in that regard”. He said that “from a psychiatric

point of view it is not that Mrs Sampson cannot work but the physical

difficulties that prevent this from happening”. He considered that the plaintiff
“possibly could undertake some suitable employment with appropriate
adjustment for her physical limitations”. Professor Ball considered that as
regard the duration of any incapacity he was “unable to comment about the
physical condition and this very much determines her psychiatric condition”.

19         The plaintiff has apparently not been psychiatrically examined again. Her general practitioner, Dr Spencer, notes that, apart from the plaintiff’s chronic pain, the plaintiff’s “other main problem over many years has been major depression. This culminated in an overdose of morphine tablets” in September 2008. In March 2007 the plaintiff had been taking “Lovan anti-depressant” and in February 2010 she was prescribed Lexapro.

20         In the context of the plaintiff’s medical history, it is appropriate to examine her employment history since she suffered her back injury. The plaintiff’s employment with Neil Kerr First National, commenced on 21 February 2005. She had completed a 15 week sub-agent’s course. She was paid a salary of $1,000 per week and commission of three per cent on sales. The plaintiff said she “found work was good

because it would distract me from the back pain, however the job required long hours
and a lot of driving. I needed to take a lot of medication to get through a working
week. I was taking Oxycontin which still gave me nausea so I took Pramin tablets
too. I changed to MS Contin. In mid 2006, I tried to replace the MS Contin with a
morphine patch but it caused a rash and ultimately vomiting and headaches, so the
patch was ceased and I returned to Oxycontin. I was increasingly concerned about
the amount of medication and its side effects on me. I had to resign from work as a
real estate agent because the medication was giving side effects and I had an
incident when driving due to drowsiness from the medication. There were times
when I became vague and sleepy from the medication and I decided that it was
unsafe to have clients in the car with me. I resigned from the real estate job on

23 January 2007”.

21         During 2007, the plaintiff said, “I wanted to seek out some definitive treatment for my back pain so I could cease medication and get back to work”. I have already detailed the steps taken by the plaintiff in this regard. She said that, “In January 2008, I found

more work as a real estate sub-agent. I returned to work against medical advice but I
decided that working with physical pain was better than the depression I suffered
when I didn’t work. My workstation and chair were assessed by an occupational
therapist and a special chair purchased for me. This has reduced my pain levels at

work but not eliminated the pain”.

22 travel from her home. To eliminate the travel, the plaintiff moved to Shepparton but

The employment with Ray Dobson Real Estate was at Shepparton, about one hour’s “found other work which I could do from home providing financial services but I was

required to do a lot of driving and had to give it up in August 2008 because I could

not manage the travelling to attend appointments with clients”. The plaintiff was very
successful with this position, and although she had taken the work on the basis that
she would work three days a week, she was required to work nine to ten hours each
day and to travel to Melbourne on one further day each week. The plaintiff gave a
consistent history to both her treating and examining doctors of the difficulties she
had coping with this employment. In addition, the plaintiff had completed two years
of study for a Diploma of Children’s Services after her injury but “did not finish the
course because I could not pick up children because of my back injury”.

23         The plaintiff’s tax return for the year ended 30 June 2006 was said by defendant’s counsel to disclose gross earnings of $132,672. That figure is correct although the tax return also discloses work-related expenses for a car, clothing and self-education of $36,850 reducing her taxable income to $95,822 for that year.

24         For the year ended 30 June 2007, the position is less clear. There is gross income from her employment as a real estate agent of $66,336, as stated by defendant’s counsel. The tax return also discloses a loss of $202,931 (which is unexplained) and business expenses of an additional $20,227, resulting in a loss for taxation purposes of $147,498. I consider, however, that these matters have little relevance in the determination of the present application. It is clear that if the plaintiff were able to pursue full time, or substantially part-time, employment as a real estate sub-agent or as a mortgage broker, the plaintiff would have an earning capacity which would be likely to return at least 60 per cent of her without injury earning capacity. I consider, however, that unless the plaintiff has the capacity to work at least one or two days each week, that she could not be regarded as having any real prospect of pursuing suitable employment.

25         I consider that the evidence justifies a conclusion that, for the foreseeable future at least, the plaintiff is unlikely to be able to work at all. In making this assessment, I take no account of her secondary psychiatric illness. I do note that the existence of

the psychiatric symptoms are indicative of the level of pain experienced as a
consequence of the plaintiff’s physical injury. As Professor Hall said, “From a

psychiatric point of view it is not that Mrs Sampson cannot work, but the physical

difficulties that prevent this from happening”. The plaintiff has made persistent efforts to return to the workforce. On each occasion it was the symptoms arising from her physical injury which prevented her from continuing that employment.
26	continued in her employment as either a real estate sub-agent or as a mortgage broker. Financially it was very remunerative, she was very good at it and it distracted her from her pain and ameliorated the psychiatric reaction to her injury. Whilst Mr Shannon believes the plaintiff “has a capacity for light work”, it appears that he did

There was no suggestion of any other reason why the plaintiff would not have difficulties she encountered. He stated: “It is not entirely clearly why she stopped this work [as a financial advisor] last year”. Other medical examiners obtained an explanation for this action, relating it to the symptoms of pain from her back and the effect of the medication she was required to take to ameliorate those symptoms. In the circumstances, I prefer to the views expressed by Mr Brearley and Mr O’Brien and the general practitioner, Dr Spencer.

27         The defendant has accepted that the plaintiff’s physical injury entitles her to leave to bring a proceeding for pain and suffering damages. In those circumstances, there are unlikely to be issues of causation or disentangling and none were sought to be argued by defence counsel. In the circumstances, I am satisfied that the plaintiff does not have a present work capacity and it is unlikely that in the foreseeable future she will be able to resume work.

28         The plaintiff will have leave to bring a proceeding for both pain and suffering and loss of earning capacity damages in relation to the workplace accident on 1 January 2004.

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Certificate

I certify that these 12 pages are a true copy of the reasons for decision of His Honour

Judge Anderson delivered on 18 March 2010.

Dated: 18 March 2010.

Hannah Christensen

Associate to His Honour Judge Anderson