Savage v Victorian WorkCover Authority
[2020] VCC 93
•14 February 2020 (Revised Oral Judgment)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03682
| Savage | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2020 | |
DATE OF JUDGMENT: | 14 February 2020 (Revised Oral Judgment) | |
CASE MAY BE CITED AS: | Savage v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 93 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Injury to lower back – psychiatric injury – loss of earning capacity - whether consequences permanent
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr C Sidebottom | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Smith QC with Ms M Cameron | Russell Kennedy Lawyers |
HIS HONOUR:
1 Mrs Savage alleges that she sustained injury to her low back and a psychiatric injury in the course of her employments with the defendants and particularly on 28 July 2015. She claims that these injuries are serious injuries within the meaning of the Workplace Injury Rehabilitation Compensation Act 2013 (Vic). In short form she brings her claim pursuant to sub-paragraphs (a) and (c).
2 She claims the consequences of her injuries are serious both in pain and suffering terms and also in terms of her loss of earning capacity. That is, she has sustained a loss of earning capacity in excess of 40 per cent. There are several matters which are not in dispute and help frame the true issues for decision in this case. As to physical injury, the parties agree that Ms Savage has sustained an aggravation of degenerative spinal changes.
3 What is really in issue are the following matters:
(a) The permanency of the consequences of that spinal condition if Ms Savage could reduce her opioid medication and participate in a pain management course;
(b) In addition the defendant submits that Ms Savage has a “light work back”,[1] enabling her to work up to 25 hours per week.
[1]This is a colloquial expression. The plaintiff agreed with its use and this characterisation of Ms Savage’s physical condition.
(c) As to the psychiatric injury claimed, it is agreed by the parties that Ms Savage has sustained a psychiatric injury in compensable circumstances. However, the defendant argues that since about May 2019 that condition has been amplified in a significant way by a non-work related event. That amplification, the defendant submits, is what is keeping Ms Savage from work and not any residual work-related psychological injury.
(d) There was no attack on Ms Savage's credit.
4 With those matters set out above, the first question to be decided in this case arises in the following way. Is Ms Savage's physical condition one which is likely to persist for the foreseeable future?
5 In considering this issue, the starting point is the general agreement as to the plaintiff's condition. The radiology is reasonably uncontroversial, showing degenerative change with no neural compression.[2] The medical opinion is fairly uniform, recording no significant radiological findings.[3]
[2]Plaintiff’s Court Book (“PCB”) 32, MRI scan.
[3]See Mr Nair at PCB 34, Mr D'Urso at PCB 58, Mr Grossbard at PCB 62, Mr Bittar at PCB 121, Medical Panel opinion at PCB 124 and Mr Carey at Defendant’s Court Book (“DCB”) 81.
6 Each of those reports also confirm an aggravation of degenerative changes. The real issue arises as to the permanency of that aggravation, the aggravation of the underlying condition and the consequences which flow from it. I consider Ms Savage's evidence and that of the medical specialists support a finding that her physical condition and its consequences are permanent ones. I make that finding for the following reasons.
7 First, the condition is of longstanding entrenched origin. It is not akin to a specific prolapse, which may reabsorb or be the subject of a frank surgery. It is a long term structural degeneration that is interacting with the aggravation. Second, the aggravation injury and its consequences have been consistently present for nearly four years. The longevity of the condition to date suggests a permanency to Ms Savage's state.
8 Third, the medical opinion is reasonably consistent, that her condition and its consequences are long term ones. Mr Carey found in mid-2019 that work was still a contributing factor.[4] He said tellingly, 'Her prognosis is for worsening pain and disability into the future'.[5] This is supported by Mr Grossbard who said in his report of 19 February 2018, 'Her back pain is unlikely to change significantly in the foreseeable future'.[6]
[4]DCB 81
[5]DCB 80
[6]PCB 62
9 Mr Sullivan, the only pain specialist in the case, opined that her condition had stabilised,[7] meaning I infer that there was no change likely. Mr Bittar was of a similar opinion.[8] Mr Baynes opined that the prognosis was guarded given the history to date.[9] Against this are the opinions from the medical panel, which opine that Ms Savage has no ongoing physical medical condition,[10] and that of Mr Barton.[11]
[7]PCB 68
[8]PCB 121
[9]DCB 90
[10]PCB 127
[11]DCB 66
10 The defendant also drew comfort from the references by Mr Carey and Mr Baynes, and Mr Sullivan, for example, to the benefit that Ms Savage might obtain from reducing her pain medications and doing a pain management course.[12] However, I consider such reliance to be speculative and not a basis on which to counter the overwhelming body of evidence as to the permanency of her condition. For example, Mr Sullivan simply says it would be 'worthwhile' that Ms Savage see a pain management service.[13] He makes no comment as to its likely effect. While Mr Carey is more ardent in his recommendation for a pain management course, 'A pain management program is highly likely to improve her understanding of her straightforward physical condition', save to say her 'permanent residual disability' could be improved with such a pain manage service he is not more specific.[14] Without such specificity, it is difficult, if not impossible, to accede to the defendant's argument and accept that a pain management course will alter Ms Savage's condition in a material way in the foreseeable future.
[12]DCB 79, 91, 68
[13]PCB 68
[14]DCB 83
11 Having made that finding, I turn to consider the consequences of Ms Savage's condition. It must at once be said that her credit was not in issue. Her affidavit material was detailed and impressive. It tells a picture of a woman who worked essentially in one manual job from when she returned to the workforce after having four children. She worked in trying conditions after the death of a co-worker in 2009. She continued despite numerous times off work for low back pain. I consider her a stoical person, one who has endeavoured to get on with her life as best she can in the face of the difficulties she has faced with her back pain. After the July 2015 incident, she continued to work modified duties until she was terminated in May 2018.
12 Ms Savage accepted under cross-examination that if she had not been terminated, she would have kept on working modified duties 12 hours per week. On any view, the position she occupied at the time of termination was one made up to suit the very particular requirements of Ms Savage given her physical limitation as to hours and duties. The plaintiff's case is that she no longer has a physical capacity for work. I accept that submission. While Mr D'Urso accepted that she had a capacity for some light work, it was significantly restricted he said, he did not say whether it was part-time or full time.[15] Mr Grossbard considered in February 2018 that even though she was working part-time on restricted duties, it brought on pain.[16] Otherwise, the majority of the reporting opines that she could not return to work in her pre-injury duties on full time hours.[17] Mr Carey makes a similar finding, but attributes this to her physical pain, depression, and opioid medication. Given his failure to separate out the physical from psychiatric causes of the incapacity consequences to work, I do not rely on this evidence as to incapacity. The same result ensues for Ms Savage's treating doctor, Dr Wee.[18]
[15]PCB 58
[16]PCB 62
[17]See, for example, Mr Sullivan at PCB 67, Mr Bittar at PCB 122.
[18]PCB 52
13 The issue between the plaintiff and defendant is whether Ms Savage is fit for any suitable employment, and further if fit for suitable employment, whether she has permanently suffered a loss of earnings of 40 per cent or more. The defendant's position is that while Ms Savage may not be able to return to work in her pre-injury duties, she could return to work in suitable employment at around 25 hours per week. I do not accept that opinion on the following grounds. First, I accept Ms Savage's evidence that she has attempted the modified duties work that was tailored for her over the four years she was with her employment - employer, and she found even that difficult. She gave evidence that she had to take time off to cope with even those modified duties. As I have said earlier, I consider her history to show a stoical individual determined to push on. Despite this, even the modified duties on part-time hours was difficult for her to complete.
14 Secondly, I rely on the opinions of Mr Sullivan and Associate Professor Bittar referred to above. Third, I do not accept the evidence of Dr Baynes as to the alternative duties Ms Savage could perform, up to in his opinion 25 hours per week.[19] These jobs are cashier, product assembler, and product quality assembler. Ms Savage has no experience in any of these roles. Further, she deposed as to her pain consequences and limitations of movements on an everyday basis. Believing Ms Savage as I do, I do not accept that her capacity to work is as Dr Baynes and for that matter Dr Barton opine. I find most likely her capacity is limited to at best about the 12 hours she was working modified duties at the time she was terminated. I would add that I accept the figure put by the defendant of $819 gross per week, as Ms Savage was earning at the date of injury, as the figure that most fairly represents her earning capacity in the three years prior and three years post July 2015. If she had a capacity of only 12 hours per week, she has sustained a loss of well in excess of 40 per cent.
[19]DCB 90
15 I will grant Ms Savage a certificate pursuant to paragraph (a) for loss of earnings. It is not strictly necessary for me then to determine the pain and suffering component, but I do so for completeness. I find Ms Savage has suffered pain and suffering consequences which are serious on the following grounds:
(a) the persistence of the symptoms for over four years;
(b) the fact that she has been on strong painkilling or muscle relaxant medication for many years. This includes strong opioid medication, Norspan, and also Valium;[20]
[20]See PCB 23
(c) she has lost her job, which was a source of pride and achievement. She has lost friends at work and being able to commune with resident at the home she worked at. She spoke of this touchingly;
(d) her love of walking in Warburton and Lilydale has been curtailed;
(e) she has become less sexually interested;[21]
[21]PCB 22
(f) she can no longer play with her grandchildren as she used to;[22]
[22]PCB 22
(g) she is unable to do the housework as she used to,[23] and this is further supported in the affidavit of her husband, which is unchallenged;
(h) her sleep has been significantly affected. I consider this to be a major consequence, and rely particularly on the Court of Appeal judgment in Haden.[24]
[23]PCB 21
[24]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
16 I turn now to consider whether Ms Savage has established her paragraph (c) claim. For the reasons which follow, I find that she has. First, she has a diagnosable psychiatric condition, which seems generally agreed upon between the medical practitioners as being an adjustment disorder with mixed anxiety and depressed mood.[25] Mr Jager, psychiatrist, has a slightly different diagnosis of chronic major depressive disorder with anxiety. I would accept the weight of the opinion as to her condition, and consider that she has an adjustment disorder with mixed anxiety and depressed mood.
[25]See Mr Patten at PCB 43, Dr White at PCB 113, Dr Stern at DCB 56, and the Medical Panel at PCB 124 and 127
17 That condition was said by the defendant to have consequences which have been significantly amplified by her reading of a report of Dr Barton in about April 2019. It is alleged by the defendant that Ms Savage took that report as alleging she was a liar and went 'downhill' from there. I do not accept that submission. First, Ms Savage denied it under cross-examination. Rather, she said it was an accumulation of her conditions since July 2015 that had led to her worsening psychiatric state, which ultimately required the prescription of Pristiq in mid-2019. Secondly, that submission is not supported by any medicolegal practitioner or treater. The effect of the psychiatric condition has been to destroy Ms Savage's capacity for work in a substantial way.[26]
[26]See, for example, the Medical Panel opinion of 15 August 2019 at PCB 127, and the report of Dr Jager at DCB 100
18 As to her paragraph (c) claim then, I find the plaintiff has made out her claim that she has sustained a loss of earning capacity of more than 40 per cent. I do not need to go beyond this to deal with the pain and suffering consequences, save to say that her affidavit alone, which is essentially unchallenged, more than adequately establishes the consequences which could be considered sufficient to meet the serious injury test.
19 Briefly, however, these are:
(a), the deleterious effect on her social life, making her withdrawn and isolated;
(b), her strong ongoing medication regime of psychiatric medications over four years and;
(c), her constant moodiness and the feeling of having a dark cloud constantly over her heard has left her with a sense of being overwhelmed.
In summary form then I will grant the plaintiff's application pursuant to paragraphs (a) and (c) under both heads.
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