Sarai v Planex Sales Pty Ltd
[2019] VCC 236
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01331
| SHANNON SARAI |
| v |
| PLANEX SALES PTY LTD |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 25 February 2019 | |
DATE OF JUDGMENT: | 13 March 2019 | |
CASE MAY BE CITED AS: | Sarai v Planex Sales Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 236 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury to the lower back – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170; Richter v Driscoll & Ors [2016] VSCA 142
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W Harrison QC with Mr C O’Sullivan | Slater and Gordon |
| For the Defendant | Mr R H Stanley | Lander and Rogers |
HER HONOUR:
Background
1 In about February 1996, the plaintiff commenced employment with the defendant, Planex Sales Pty Ltd, as a full-time storeman. He was required to perform duties which included moving filing cabinets around the premises. The cabinets were large, very heavy and difficult to move.
2 Approximately two years after commencing work with the defendant, the plaintiff suffered pain in his back when moving a heavy trolley up a ramp. He believed he saw a work doctor and physiotherapist. The pain got better and he was able to work normal duties.
3 In November 2006, the plaintiff suffered pain in his right elbow when moving a filing cabinet. He submitted a WorkCover claim that was accepted. He recalled taking anti-inflammatory medication and resumed normal duties.
4 On 14 June 2012, the plaintiff was required to pull large heavy cabinets onto pallets at work. While doing this, he felt a sharp pain in his lower back. He reported the incident and was taken to the work doctor. The pain in his back did not improve and he returned to the doctor on 18 June 2012. He was prescribed Panadeine Forte and Valium and referred for physiotherapy treatment. He underwent radiological investigations.
5 The plaintiff was able to return to work on modified duties but was still handling heavy cabinets. The defendant paid for his medical treatment and medication and gave him days off work as needed. He did not lodge a WorkCover claim.
6 In June 2013, while at work, his low back worsened whilst he was moving some heavy cabinets. He consulted his doctor, who suggested further physiotherapy treatment. He was referred to a rheumatologist, Dr Mark Patrick, who prescribed Endep.
7 The plaintiff was treated by Dr Sandhu, general practitioner and company doctor. The plaintiff completed a WorkCover Claim Form on 27 November 2013 for aggravation of the low back injury sustained on 14 June 2012, the injury the subject of this application. The claim was accepted.
8 On 4 June 2014, the plaintiff attended a workplace assessment with his employer and physiotherapist. Not much changed in relation to his work duties after the assessment.
9 In early 2015 the plaintiff said his back pain worsened. He sought treatment from his doctor who prescribed Endep and referred him to a pain specialist, Dr Clayton Thomas. Dr Thomas recommended a pain management program which the plaintiff was reluctant to undertake as it required substantial time off work. Dr Thomas prescribed Norspan pain patches, which the plaintiff did not use because he was advised that the treatment was addictive.
10 In early 2017, the defendant informed the plaintiff that they were withdrawing suitable duties whilst they conducted a review of the plaintiff’s duties. In February 2017, he was required to undertake a functional capacity evaluation. As a result, the plaintiff was informed that his employment would be terminated as he did not have the capacity to perform pre-injury duties.
11 In late 2017, the plaintiff underwent a pain management program arranged by Dr Thomas over six weeks. The program did not eliminate his pain but he learned techniques for managing his pain.
Application
12 This is an application by the plaintiff for leave to bring proceedings for the recovery of damages pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (”the Act”) for an aggravation injury to his lower back which he alleges was caused in the course of his employment with the defendant.
13 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
14 The plaintiff alleges that the injury is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury”. The relevant body function in which there has been an impairment or loss is the low back.
15 The plaintiff relied upon two affidavits which he swore on 4 September 2017 and 11 February 2018. The plaintiff was cross-examined. I have not summarised the evidence, including the affidavits of the plaintiff; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other materials which were tendered in evidence. I have read all the tendered material.
The Issues
16 The issue for determination by the Court is whether the plaintiff has suffered a serious injury in respect to damages for pain and suffering and loss of earning capacity.
17 It was not in dispute that the plaintiff was injured at work. What was in issue was whether the consequences of his physical injury to the lower back amounted to a “serious injury” as defined under the Act.
18 Counsel for the defendant submitted that the pain and suffering consequences the plaintiff suffered when compared with other similar cases could not be described as being more than significant or marked and as being at least very considerable, as required under the Act.
19 In respect to loss of earning capacity, the issue to be determined by the Court is whether the plaintiff has suffered the requisite loss of earning capacity of 40 per cent or more which will continue indefinitely. If the plaintiff satisfies the economic loss consequence, then leave to proceed for pain and suffering is axiomatic.[1]
[1]Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170
20 Accordingly, I will consider the economic loss aspect first.
The credit of the Plaintiff
21 The plaintiff’s credit was not in issue: he answered questions directly and without exaggeration. He was straightforward in his presentation in Court and made concessions. For example he said that he had experienced improvement since his pain management course where he said he had been taught techniques as to how to cope with the pain and that he found them of assistance.[2]
[2]Transcript 37, Lines 21-27
22 There was no suggestion in the medical evidence that the plaintiff’s credit was an issue. Dr Slesenger had seen the surveillance and his opinion was unchanged.
23 The plaintiff impressed me. He was motivated to work and continued working for four-and-a-half years on light work certificates until his employment was terminated. At the time of ceasing work, he worked on the following restrictions
· light duties only
· maximum lifting of 5 kilograms
· avoid repetitive bending/pulling duties at work
· strictly to do light duties
· return to work as per the plan signed during the return to work plan written on 4 May 2016
· to start at 800 hours instead of 700 hours.[3]
[3]Defendant’s Court Book 69
24 The plaintiff has pursued the treatment options recommended to him, including consulting a pain specialist and undertaking a pain management course. He conveyed to the Court how important work was to him and the attempts he made to find work after his employment was terminated.
25 Counsel for the defendant accepted that the plaintiff was a witness of truth.
Surveillance
26 Counsel for the defendant relied upon the surveillance footage dated 11 December 2016. The plaintiff reversed his car in his driveway and started operating a lawnmower, bending his body up to 90 degrees. He operated the lawnmower, reached the grass collector attached to the mower, lifted the grass collector and placed the contents in a wheelie bin. He repeated this action on a number of occasions. He performed physical work, weeding in his garden. He used a Whipper Snipper, trimming the edges. The video evidence was over a period of 34 minutes, in which time the plaintiff completed his mowing and gardening activities.
27 Counsel for the defendant accepted that I must assess the plaintiff’s consequences as at the time of the hearing, but submitted that I should be informed as to the plaintiff’s capacity as at the date of the video, by the plaintiff’s activities in the video. Namely, that he was performing physical work in his garden which did not demonstrate a man with restrictions.
28 I note that the surveillance footage shown in Court ran for 34 minutes. The evidence is that the plaintiff was under surveillance for 70 hours during the period of 2 December 2016 to 1 December 2018. The surveillance before the Court is not inconsistent with the plaintiff’s evidence and that of the medical witnesses.
29 Further, Dr Slesenger and Mr O’Brien were provided with the surveillance report and video.
30 Dr Slesenger reviewed the surveillance footage of 3, 4, 10, and 11 December 2016. He said the footage is not contemporaneous with his assessment.[4] Further, the plaintiff’s reported functional limitations are broadly in line with the footage. The surveillance did not alter the opinion he had expressed previously as to his capacity.
[4]Plaintiff’s Court Book 74
31 Mr O’Brien said the plaintiff reported that he is usually able to undertake the normal activities of daily living but when the pain is acute he finds it a struggle to dress himself. The plaintiff reported usually being able to undertake reasonable domestic tasks including mowing the lawns, although he said he paces himself. Mr O’Brien referred to the activity reports of December 2016 and said the self-paced activity was compatible with the clinical findings.
32 None of the defendant’s medical witnesses commented on the surveillance material obtained by the defendant.
33 There was nothing in the surveillance that was inconsistent with the medical evidence and the evidence as to what the plaintiff said as to his capacity.
34 I note that on 23 February 2017, a Functional Capacity Assessment was conducted by the employer. The plaintiff did not pass the assessment, and as a result, he was made redundant.
Loss of earning capacity
35 It was not in issue between the parties that the plaintiff suffered a work-related injury to his low back in the form of an aggravation injury. In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
36 The plaintiff must establish that at the date of hearing he has a loss of earning capacity of 40 per cent or more, which will continue permanently.
37 In respect to employment, it was accepted by the defendant that the plaintiff cannot return to pre-injury employment, but can return to suitable employment, being a retail assistant or light assembler as identified in the Nabenet report dated 11 April 2017, working 32 hours per week.
38 Counsel for the plaintiff submitted that the Court should find that there is no employment for which the plaintiff is suited when regard is had to the definition of “suitable employment” under s5 of the Act, with particular regard to:
(a) The nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(b) The nature of the worker’s pre-injury employment;
(c) The worker’s age, education, skills and work experience.
39 In the alternative, any work capacity is very restricted given the restrictions imposed by the medical evidence of Dr Sandhu, Mr O’Brien and Dr Slesenger.
40 The up-to-date medical evidence of the plaintiff’s capacity for employment was expressed by Dr Wilson, Dr Sandhu, Mr O’Brien, Dr Slesenger, and Dr Soliman
41 In April 2017, Dr George Wilson, occupational health physician, examined the plaintiff at the request of the defendant’s solicitor. He said, had the plaintiff not been terminated, he would be still able to work from 8.00am to 3.20pm on alternative duties. He was provided with the Vocational Assessment Report from Nabenet dated 11 April 2017. That report identified the following job options as suitable to the plaintiff, namely:
· forklift driver
· crane operator
· retail/sales assistant
· light assembler; and
· traffic controller (subject to traffic management training).
42 Dr Wilson said, of the jobs identified, the plaintiff could only work as a retail sales assistant and light assembler. Further, there are significant barriers to the plaintiff obtaining suitable employment, namely, his ongoing chronic pain, his age and being on an active WorkCover claim. He said the plaintiff’s chronic pain may be improved with a pain management program or even consideration of medial branch blocks. Physical restrictions relate to his back function, such that he would need to have regular postural changes, without the need for frequent loading of the thoracolumbar region. He said these restrictions would be indefinite.
43 In respect to Dr Wilson’s report, the evidence is that the plaintiff underwent a pain management course in late 2017.
44 In February 2019, Dr Sandhu, treating general practitioner/company doctor, provided a certificate of capacity with the following restrictions:
· Light duties only
· Maximum lifting 3 kilograms
· Avoid repetitive bending/pulling duties at work
· Rotation of duties recommended
· Limited to 3 hours per day.
45 The plaintiff’s evidence is that he sees Dr Sandhu once per month. I accept that Dr Sandhu is limiting the plaintiff to 15 hours’ work per week with the abovementioned restrictions.
46 In January 2019, Mr O’Brien, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He said the plaintiff could not return to pre-injury duties. He noted that the plaintiff has pursued modified duties after the onset of symptoms and that there was progression of symptoms associated with some continuing manual duties. Further, the plaintiff would be precluded from obtaining suitable employment. He concluded that the plaintiff is now totally and permanently incapacitated and will not return to gainful employment.
47 In September 2018, Dr Slesenger, occupational physician, examined the plaintiff at the request of his solicitor. He said the plaintiff cannot return to his pre-injury duties given the manual handling and the postural requirements of the role. With regard to alternative duties, he imposed restrictions and said he should:
· avoid pushing, pulling, carrying or lift over 5 kilograms
· avoid repetitive bending or twisting
· avoid exposure to whole body vibration
· avoid prolonged static posture
· work four hours a day, four days a week.
48 Dr Slesenger expressed reservations as to whether the plaintiff would be able to continue to attend work on a consistent and reliable basis with these restrictions.
49 Dr Slesenger was aware that it had been suggested that the plaintiff could return to work in the roles of forklift driver, crane operator, retail assistant, light assembler and traffic controller, the jobs identified in the Nabenet report. He considered the requirements of each position and provided reasons as to why each of the jobs were unsuitable. He concluded that the each of the roles were unsuitable for the plaintiff.
50 In March 2016 and December 2018, Dr Sam Soliman, occupational medicine consultant, examined the plaintiff at the request of the defendant’s solicitor. In December 2018, the plaintiff reported that he is limited in his daily activities to:
· 30 minutes sitting down
· 30 minutes walking
· 15 minutes standing still
· 30 minutes driving.
51 Dr Soliman said the plaintiff is unlikely to return to his pre-injury duties but is fit to work full hours in alternative suitable duties where there is no repetitive bending and lifting below the waist height with maximum lifting of 8 kilograms. He needs to alter his posture regularly. Dr Soliman said that he was provided with the schedule of attached reports and other materials but there was no identification of the documents provided. He did not refer to the Nabenet report in his report, and did not address the roles of light assembler and retail assistant.
52 Given the defendant adopted the position that the plaintiff could work as a retail assistant and light assembler, I will refer to Dr Slesenger’s views on the unsuitability of the plaintiff for such roles only.
53 In respect to retail assistant, Dr Slesenger said the manual handling requirements, including light to medium work demands, would require a lift capacity of greater than 9 kilograms, which is outside the restrictions he imposed. He would advise against the plaintiff returning to work in this role.
54 In relation to light assembler, Dr Slesenger noted that the manual handling demands require a lift of up to 9 kilograms. Further, he noted that prolonged seated posture was involved. He said the job demands are likely to be outside the plaintiff’s capacity.
55 On the basis of the medical evidence, I accept the plaintiff cannot return to pre-injury work. In relation to suitable employment, I accept the evidence of Dr Slesenger, which is that a job as a retail assistant is not suitable employment for the plaintiff given the imposed restrictions. Further, I do not accept that the plaintiff can meet the inherent duties of a retail assistant as outlined in the Nabenet report as he could not use a pallet to move equipment, merchandising stock storewide, he could not replenish stock, he has no experience operating an electronic register and has no prior experience in a customer service role. Accordingly, I do not consider the position suitable.
56 I also accept the position of light assembler is not suitable. This role requires prolonged seating postures and Dr Slesenger said the job demands are likely to be outside the plaintiff’s capacity limits. At best the plaintiff can return to work between 15 to 16 hours per week. I rely upon the reports of Dr Sandhu, the treating general practitioner, who sees the plaintiff monthly and is also the company doctor, who restricts the plaintiff to working 15 hours per week and lifting to a maximum of 3 kilograms. Dr Slesenger restricts the plaintiff to working 16 hours per week with an avoidance of pushing, pulling carrying or lifting over 5 kilograms. Both doctors impose other restrictions which are similar of avoiding bending and twisting, rotation of duties.
57 The plaintiff told the Court and medical witnesses that he wanted to return to work. He gave evidence that he has sought employment looking in newspapers, asking neighbours, and his daughter has been assisting him with online applications for employment. The plaintiff said that he has been unsuccessful in being offered a formal interview. In cross-examination, the plaintiff said:
“Of course I wanted to work, why did I keep going back to work, it says 2012? Nobody wants to lose their job. If I want to sit at home I would have sat at home saying, ’Doctor, I can't’. The doctor kept telling me try, try, try, and I’m trying.[5]
…
I want to work, I want to do work, I can’t sit inside and just lie there, you know, it’s no life.”[6]
[5]Transcript 24, Lines 19-24
[6]Transcript 25, Lines 12-14
58 I accept that the plaintiff is motivated to work within the restrictions imposed upon him and has attempted to find suitable employment without success. I accept that his inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem.
59 In this case, the plaintiff was made redundant by his employer, who has not been able to offer him suitable employment. The evidentiary onus shifts to the defendant to adduce evidence of jobs for which the plaintiff is suited.[7] The Court of Appeal in Richter v Driscoll & Ors,[8] said a physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. A relevant consideration is the plaintiff’s ability to attend work reliably and consistently.
[7]Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120
[8][2016} VSCA 142 at paragraph [76]
60 I accept that the plaintiff cannot return to pre-injury employment. All medical witnesses agree upon this. I have accepted that none of the jobs identified by Nabenet constitute suitable employment for the plaintiff
61 Given the plaintiff’s injury has persisted since 2012 and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent and he is effectively out of the workforce for any suitable employment as a result of the impairment to the low back and the consequences flowing from that. I am satisfied that it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range.
62 No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB (38) (h) of the Act.
63 The plaintiff has actively sought employment and been unsuccessful. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that he has any residual capacity, when the medical restrictions placed on him by the medical witnesses are considered in the context of the real commercial world.
64 Therefore, the plaintiff satisfies the narrative test and the statutory test for loss of earning capacity.
65 In view of the matters I have described, the plaintiff has discharged the onus with respect with his impairment of the low back regarding his loss of earning capacity.
66 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages in respect of the low back.
Pain and suffering
67 In view of my finding that the plaintiff has satisfied the test for economic loss, it is not strictly necessary for me to consider the pain and suffering consequences; however, out of an abundance of caution, I am satisfied that the plaintiff has satisfied the test for pain and suffering consequences.
68 I take into account the level of pain the plaintiff suffers and the daily pain he reported to medical practitioners. The plaintiff consults Dr Sandhu monthly, and continues to take medication on a daily basis of Celebrex. He no longer takes Lyrica as it was causing him stomach problems. His sleep is affected, with the result that he sleeps poorly, with the result that he feels tired and vague during the day. To assist with sleep, he takes Endep. This was not challenged in cross examination. He liked to go on long walks in Churchill Park with his wife. The walking increases his back pain, particularly if he walks up and down hills and on uneven surfaces. After a walk he needs to rest and wait for the pain in his back and buttocks to ease. The plaintiff told the Court of the frustration he suffers from not being able to work.
69 I accept that the inability to work in pre-injury employment or heavy manual employment is a consequence at the high end of the scale. I also take into account the premature and undesired end to his longstanding career with the defendant. The plaintiff told the Court of the frustration he suffers as a result of not performing the work he performed prior to the injury at work and the reliance he places on his wife and children to assist him in the day-to-day activities that he can no longer perform for himself. I accept that his inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem. Given the time the injury has persisted, I accept the consequences are permanent.
70 Taking into account the above consequences, I consider the plaintiff satisfies the test for pain and suffering consequences.
71 I will hear the parties on costs.
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