Schwab v Victorian WorkCover Authority
[2017] VCC 1453
•11 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00832
| IRENE SCHWAB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2017 | |
DATE OF JUDGMENT: | 11 October 2017 | |
CASE MAY BE CITED AS: | Schwab v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1453 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION.
Catchwords: Serious injury application – injury in the course of employment to lower spine – disentanglement from other physical injuries – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Ms S Gold | Russell Kennedy Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mrs Irene Schwab, claims to have suffered injuries to various areas of her body over the course of her employment as a factory worker and a machine operator with Fonterra Brands (Australia) Pty Ltd (“Fonterra”). She started working there in December 2003 and left employment, due to her injuries, in October 2011. She has not returned to any work since. She claims a range of domestic, recreational and leisure tasks and pursuits have been lost or restricted.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered during the course of Mrs Schwab’s employment with Fonterra.
3 The body function relied upon as being impaired is the lower back, although at the time of issue of her Originating Motion, the injuries relied upon included to both legs, the right shoulder, left hip and left elbow.
4 Mrs Schwab was the only witness called to give evidence and be cross-examined. In addition, several affidavits sworn by her, and medical, radiological and vocational reports were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
5 Ms Gold, on behalf of the defendant, at the outset conceded that subject to a submission she proposed to make as to whether it was appropriate to regard the application as being in respect of the “course of employment”, the consequences to the plaintiff of the lower back injury satisfied the “pain and suffering” test as prescribed by the Act and the authorities. This, in my view, was an appropriate concession.
Relevant background
6 Mrs Schwab was born in Russia and migrated to Australia in 1988 with her family. In Russia, she completed schooling to the equivalent of Year 11 and worked as a nanny, and undertook some factory work. After migrating to Australia, she worked picking fruit, in a poultry processing farm for nine years, at Target in customer service on a part-time basis for a number of years, as a cleaner, and also in a confectionary factory.
7 Mrs Schwab commenced with Fonterra in 2003 and became permanent in 2004.
8 She said the work was heavy and strenuous and she was often required to lift substantial weights. She was required to lift and manoeuvre large rolls of plastic film, rotate turnstile tables on which boxes were placed, handle boxes weighing 10 kilograms and more, and was required to do rapid feeding work.
9 Up until 2005, Mrs Schwab had not suffered any injuries or restrictions, in particular, to her lower spine. She was otherwise healthy. Save for time off with the birth of her children, she has a long and stable employment record.
The injury and its consequences
10 In 2005, Mrs Schwab hurt her shoulder while lifting a box. She also suffered an injury to her left leg and hip in the course of her work duties. Her lower back became sore in about the middle of 2005. According to a WorkCover Claim Form,[1] she reported an injury to her left hip, back and right shoulder in an incident of 1 September 2005, which was said to have occurred when she “lifted basefilm when was in training”.[2] According to the Claim Form, it was an “on-and-off condition”.
[1]Defendant’s Court Book (“DCB”) 5-6
[2]DCB 5
11 Mrs Schwab was treated by Ms Elizabeth Morfield, physiotherapist, from July 2005. She attended, complaining of an injury to her lower back and left hip as a result of her heavy work duties, in particular, lifting and carrying boxes. She gave a further history to Ms Morfield that in October 2006, her back and left groin pain was aggravated after she was carrying boxes up steps. There was a further flare-up in December 2006. At Ms Morfield’s suggestion, various work restrictions were put in place – there should be no pushing of pallets, lifting over 5 kilograms and with regular breaks. There was a further exacerbation in June 2008. Ms Morfield also treated Mrs Schwab for right shoulder and right elbow pain and restriction.
12 In October 2008, Mrs Schwab was referred by her general practitioner to Dr David Vivian, pain management specialist, complaining of low-back pain, left hip pain, and left leg pain.
13 In August 2008, Mrs Schwab was referred to Mr David de la Harpe, orthopaedic specialist, by Ms Morfield. He obtained a history of the development of back and left hip pain from 2005, worse over recent months. The back pain was said to be the most significant. He noted she had been having physiotherapy over a considerable period, as well as massage and chiropractic treatment. She had been prescribed various medications. He thought she was suffering from degeneration at the L4-5 disc, contributed to by her work duties.
14 Mr de la Harpe reviewed Mrs Schwab in 2010 and administered a CT-guided epidural injection into the lower spine, which was said to be effective. She remained working over this period. He reviewed her again in November 2010, and there had been some regression in her back condition. There was also pain over the left hip. Upon review in January 2012, the effect of the epidural injection had started to wear off and he noted she was having some problems with her knees and an arthroscopy had been conducted to the right knee. He suggested a further epidural injection, but approval by the WorkCover insurer was withheld. By January 2013, Mrs Schwab’s symptoms were regressing and a further MRI scan revealed stenosis at L4-5. A further epidural injection was administered in April 2013.
15 Prior to this time, Mrs Schwab fell at work, apparently slipping on a substance on the fall, and aggravated her hip and back injuries. Her right knee was also injured.
16 In April 2011, Mrs Schwab underwent surgery to her right shoulder and was restricted for a significant period.
17 In June 2013, Mrs Schwab underwent a right shoulder arthroscopy.
18 In relation to her work restrictions, in October 2011, Mrs Schwab said the pain was so great that she was unable to continue working. She was prescribed medication by her general practitioner. She acknowledged, in cross-examination, that from March 2011, she was receiving treatment for her hip injury and left elbow. In July 2011, she had an injection into that elbow. Also, around this time, she was having problems with her right shoulder. She accepted that the reason she left work in October 2011 was as a result, not only of her lower back, but also of her right knee. She had completed an Incident Report Form,[3] saying that she had sore and swollen knees as a result of standing for prolonged periods at work. She further acknowledged that she had about five weeks off work in the middle of 2011 as a result of left elbow pain. She was on modified duties in 2011 because of right knee pain, and in November of that year, underwent surgery to the right knee. She accepted she took a considerable amount of sick leave in respect to her left elbow, shoulder and lower back in the 2011 year.
[3]DCB 226b
19 On 18 February 2014, Mr da la Harpe undertook decompressive surgery at L4‑5 in the form of a laminectomy and rhizolysis. According to his reports, the surgery was technically successful and there was improvement in Mrs Schwab’s leg symptoms. Upon review in May 2015, she complained of diffuse pain in the back and lower limbs. He arranged an MRI scan and concluded that there was no further neural compression, and thus no reason for further surgery, despite her complaints of pain into the ankle. He thought she had a reasonable result from the surgery, but it was likely that she would suffer continuing lower back pain as a result of the degenerative process. He said she should not return to employment involving manual labour, and in respect of any employment, she should not be required to sit or stand in the one position for thirty minutes, and there should be no repetitive bending or twisting, nor lifting beyond 5 kilograms.
20 Mrs Schwab came under the care of Dr Elaine Coulter, general practitioner, in August 2013. Dr Coulter noted right shoulder and left elbow pain, as well as the decompressive laminectomy by Mr de la Harpe. She said the MRI scan showed a degenerative condition at L4-5, with an annular tear. She also noted right shoulder supraspinatus tendinosis and subacromial bursitis. According to Dr Coulter’s reports of 2016 and 2017,[4] Mrs Schwab had no capacity, either on a full or part-time basis, for her pre-injury work as a result of her back injury. She thought there was capacity for part-time employment, as a result only of the back injury, but she could only work a maximum of two to three hours a day, with the flexibility to change position, not stand or sit for long periods, and not in any job where the tasks were physically demanding. Dr Coulter also thought she would be restricted in her social and domestic activities as a result of the back problem.
[4]Plaintiff’s Court Book (“PCB”) 37-40
21 In fact, by July 2017, Dr Coulter said Mrs Schwab was permanently and severely restricted for employment activities and was permanently unable to return to the workforce in any capacity. She added Mrs Schwab was severely restricted in daily activities, including more strenuous household tasks, and her social activities were restricted. She recommended continuing exercises with chiropractic and physiotherapy treatment.
22 According to her affidavits and evidence, Mrs Schwab said her lower back pain is present all the time and, if anything, has been deteriorating. The back pain is her main impediment. She has pain in her right shoulder, but is able to cope and it only becomes an issue when she is performing heavy or repetitive tasks with her shoulders.
23 Mrs Schwab is prescribed medication by Dr Coulter, and takes Mobic (anti-inflammatory), one per day; Panadeine Forte for pain four times a day, and up to six Panadol Osteo per day. She continues to have physiotherapy about once per month, together with myotherapy. She goes to a chiropractor occasionally.
24 Mrs Schwab says her left elbow does not cause any significant problems. She needs assistance from her family to undertake the heavier domestic duties. In 2012, she completed a six-month course to qualify as a phlebotomist. This would enable her to work with a pathology service taking blood samples and the like. In cross-examination, she accepted the course was conducted over about six months, four days per week, and that she achieved high marks. She worked at Cabrini Hospital as part of the course over several weeks, but said she became tired at the end of that time with back pain. She applied for a number of jobs in the area, but was not successful.
25 She has also undertaken a course to qualify as a medical receptionist, three hours per week over three weeks. In September 2013, she undertook a basic computer course, including in business software. Her husband runs his business, and she lends some moderate assistance from time to time. She says she can do some basic work on computers, but is not particularly capable. Her spoken English is reasonable, although she says that while she can read and write in English, she struggles to a significant extent and needs assistance from her children.
26 Mrs Schwab has not applied for any jobs since 2013, but says that she would love to work. She says her back is unpredictable and some days she cannot get out of bed. If she only had the right shoulder problem, she could obtain part-time employment. She says she could not perform factory work because of her back problems and does not have any training for administrative or office jobs. She says she cannot stand or sit for long periods.
27 Mrs Schwab’s sleep is impaired and she wakes up feeling fatigued and irritable. Her intimate life with her husband is affected.
28 Mrs Schwab walks, and does the exercises which have been recommended by her treating practitioners. The pain in her back is constant and is exacerbated by strenuous activities.
Consultant medical practitioners’ opinions
29 I have referred to the opinions of the treating practitioners.
30 Mr Paul D’Urso, neurosurgeon, examined Mrs Schwab in February 2017. He noted the onset of symptoms in her lower back in 2005 as a result of repetitively lifting boxes. He also received a history that she developed pain in her right shoulder and left hip. She had surgery to her right knee in 2011. Mr D’Urso noted that her ongoing back pain was 2 out of 10 in severity, with referred pain into both legs affecting her ankles and knees.
31 Mr D’Urso was provided with a range of radiological investigations revealing degenerative changes at L3-4 and L4-5. He diagnosed Mrs Schwab as suffering degenerative disc disease at those levels and noted a broad-based prolapse at L4-5 with some foraminal nerve root impingement. He said the lumbar laminectomy had been technically successful, but she had been left with a degree of back and sciatic symptoms. He said her workplace activities had contributed to her back problems. He said she could not perform repetitive bending, twisting or lifting, and should not lift weights over 10 kilograms. She did not have the capacity for pre-injury employment, but thought she may have the capacity for some light part-time employment within the restrictions noted. He said, with the other problems in her right shoulder, left hip, left elbow and right knee, it would be impossible for her to find suitable employment, and it was likely she would be permanently incapacitated. She would be restricted in her domestic and recreational activities, in particular the more arduous ones.
32 Mrs Schwab was examined by Dr David Eaton, occupational physician, in March 2017. He noted a range of restrictions, in particular, relating to her capacity to walk, sit, stand, drive, squat, lift and carry weights, and the heavier aspects of domestic duties. He undertook an assessment of her language skills. He was provided with a list of areas of employment suggested by the defendant’s rehabilitation provider, including:
·customer service assistant (health insurance)
·call centre operator
·pathology courier
·office assistant
·medical receptionist.
33 Dr Eaton noted a limited range of movement of Mrs Schwab’s lower back and right shoulder. He said that she was suffering from a surgically-treated aggravation of lumbar spondylosis, with referred pain to the lower legs, together with a right shoulder rotator cuff tendinosis. He provided a range of restrictions in the work activities she would be able to undertake. He said she would be unable to perform most of her pre-injury work tasks. As a result of the various restrictions, he considered there was no suitable employment that Mrs Schwab would be able to perform on a consistent basis and, therefore, she had no current work capacity. He said she did not have the capacity to perform the jobs as suggested, by reason of her back injury. She had the capacity to perform some lighter duties if regard was had only to the right shoulder.
34 A report from Katrine Green, vocational assessor, was provided. I did not find the report of significant assistance.
35 Dr Marinis Pirpiris, orthopaedic surgeon, first treated Mrs Schwab in 2008 for right hip problems. He diagnosed gluteal trochanteric bursitis and inflammation. He did not think the hip was her most significant problem, but that the main pathology related to her back. Her treatment continued until 2011.
36 Mrs Schwab was examined by Associate Professor Myron Goldwasser, orthopaedic specialist, in February 2015. He obtained a history of problems with her right shoulder, left hip and lower back related to her employment tasks. Associate Professor Goldwasser’s report was of limited assistance, as it comprised largely an impairment assessment under the AMA Guides.
37 Mrs Schwab was examined by Dr Dominic Yong, occupational physician, in 2016 and 2017. He obtained a history of the injuries to various parts of Mrs Schwab’s person, including to the right shoulder, left hip and lower back. He said Mrs Schwab suffered a lower back degenerative condition with radiculopathy, which was treated by surgery in 2014. He said she continued to have lumbar dysfunction. He noted she complained of difficulty with various aspects of domestic and recreational undertakings, but was independent of activities of daily living. He noted the presence of post-operative dysfunction and deconditioning in the lower back. He suggested she undertake an exercise regime as part of her recovery program. He described her prognosis, “should not be unreasonable with participation in an activity-based recovery program”.[5]
[5]DCB 152(j)
38 In relation to the areas of employment identified, Dr Yong said Mrs Schwab would be able to undertake the tasks of a customer services assistant, call centre operator, pathology courier, office assistant and medical receptionist. Given the fact that she had been out of work for a considerable period, he suggested a graduated return to work, commencing four-hour shifts, four days per week, returning to full-time employment within six months.
Credibility of the Plaintiff
39 I found Mrs Schwab an honest and forthright witness, giving a reasonable account of the injuries she has suffered and the effect upon her work and other activities. She answered questions in cross-examination in a straightforward manner. There were no major credit issues put to her.
40 I am impressed with Mrs Schwab’s work history and accept her explanation that she would much prefer to return to work but, in particular, because of the pain and ongoing restriction in her lower spine, she would find it difficult.
Analysis
41 There were three main areas addressed by Ms Gold in her submissions. The first was that in the course of Mrs Schwab’s work duties, there were a number of incidents which gave rise to her lower back injury. The first incident was on 1 September 2005, when she was lifting a heavy roll of film. There was another incident of November 2010, when she slipped on a substance on the floor at work. Also, she claimed to have been injured, generally, over the course of her employment because of her heavy and repetitive duties.
42 Ms Gold’s second point is that it is clear Mrs Schwab suffered injury to a number of areas of her body, in particular, to the knees, right shoulder and left hip, as well as the lower back. She submitted Mrs Schwab had not sufficiently disentangled the consequences of those other injuries, such as to satisfy the Court that the consequences relating solely to the lower back met the statutory test.
43 Finally, relying particularly on the report of Dr Yong, she said the plaintiff did have a capacity for restricted duties beyond the 60 per cent required by the legislation.
44 In relation to Ms Gold’s first submission, I do not accept, given the nature of the work duties, that it is necessary to identify any one particular incident and examine only the injury and consequences which flow from that incident, to the exclusion of other incidents. I do not accept that the principles established by Lu v Mediterranean Shoes Pty Ltd[6] stands as authority for that proposition. That case involved separate injuries to a shoulder and elbow, which the Court determined did not constitute the one body function.[7]
[6](2000) 1 VR 511
[7]Lu at paragraph [23]
45 I accept that generally, the Court should assess the consequences of an injury which has been sustained as a result of a single event to the exclusion of consequences arising from injury from other events. However, that general rule has an exception. That is where, in the course of regular, repetitive and similar tasks, such as working on a production line, a worker suffers injury over a period of time. It would be impossible to analyse each and every small task and to determine whether that task caused serious injury consequences. In the modern work environment, it is often repetitive tasks which, over time, cause injury. That is particularly so in manual areas of employment. As early as Barwon Spinners v Podolak,[8] the Court considered the possibility of injury sustained to the one body part on multiple occasions in similar incidents occurring relatively closely in time. The Court said it may be possible to aggregate those incidents. In decisions since, that proposition has been confirmed.[9] Each case will be determined on its own facts and particular circumstances, and it is difficult to lay down even broad rules. Of most significance is the nature and type of the work duties and the time over which the injury is said to have occurred.
[8](2005) 14 VR 622 at paragraph [89]
[9] See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340 and O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [107]
46 Save in relation to injuries which arise from a specific incident, it is common in applications of this nature, where workers are required to carry out heavy and repetitive manual duties over time, for the application to be put as a “course of employment” case, sometimes said to include a frank incident on a certain day. That is particularly so in circumstances where, as here, the plaintiff was engaged in repetitive lifting and maneuvering boxes and other materials over a number of years. It would be almost impossible to pinpoint any one particular lifting incident as being the sole cause of her lower back injury. All of the medical reports refer to heavy and strenuous duties over time. Certainly there were a number of incidents, including those referred to by Ms Gold, but I see no impediment to pleading all of the work duties and tasks as being the basis of her lower back injury. The one incident where I accept the submission of Ms Gold is that concerning the plaintiff having slipped on the factory floor on some substance. That could not be said to be an incident related to a repetitive, production line type activity. However, there is little made in the reports of either the treating or consultant practitioners of any injury arising from that incident. While the plaintiff may have suffered some exacerbation of a back condition, I do not assess it as being significant. In the scheme of things, it was relatively minor and did not produce significant long-lasting consequences.
47 As to Ms Gold’s second point, it is true that Mrs Schwab suffered injury to various areas of her body from her work duties. I am satisfied that in respect of her hip problem, that has substantially stabilised as a result of treatment and is not a significant part of her present symptom complex. Likewise, the issues with her knees have substantially subsided. I accept that she does suffer ongoing right shoulder problems and that this does cause her some restriction. She has pain in the shoulder and there is no doubt she would be unable to carry out heavier work activities which involved the use of the arm and shoulder. She underwent surgery for the right shoulder in April 2013 and had several injections into the area subsequently.
48 Nonetheless, I accept Mrs Schwab’s evidence that her major problem at the present time is her lower back. I further accept that were she troubled only by her shoulder symptoms, while there would be some limit to her employment prospects, she would still be able to work.
49 Mrs Schwab has only ever worked in manual employment, save for a relatively short period as a store assistant at Target. She said she had difficulty operating the cash register. She did, in various of her manual jobs, attain the position of supervisor, but her administrative duties were relatively limited. She has undertaken a number of courses, including as a phlebotomist, as a medical receptionist, and a basic computer course. She has applied for a number of jobs in those areas.
50 However, I accept Mrs Schwab’s evidence that she suffers ongoing constant pain in the lower back, exacerbated from time to time. I accept that there are some days when the pain is so significant that she struggles to get out of bed. In those circumstances, she would not be a reliable employee. I prefer the medical opinions of her treating general practitioner, Dr Coulter, who has treated her over a considerable period, and believes she has no work capacity. I further accept the opinion of the treating orthopaedic surgeon, Mr de la Harpe, who thought Mrs Schwab had some capacity for light employment within significant restrictions. I prefer those opinions to the opinions of the various consultant practitioners. I do not accept Dr Yong’s assessment that Mrs Schwab has the capacity for all of the suggested areas of employment. That assessment is, in my opinion, unrealistic.
Conclusions
51 I accept Mrs Schwab suffered injury in the course of her strenuous and repetitive employment duties to cause an aggravation to the underlying degenerative change in the lower spine and, in particular, at L3-4 and L4-5. That has led to a range of ongoing significant lower back symptoms, and major surgery to that area. I accept that while the surgery was technically successful, it has left her with pain and restriction in the lower spine and referred pain into her leg. I am satisfied that from this condition alone, her work capacity is significantly reduced.
52 It is not necessary for me to fix upon a particular gross wage figure as representing her pre-injury work capacity. I am satisfied that while she probably has the capacity for some limited part-time light employment, that capacity has been reduced by more than 40 per cent as required by the Act.
53 In those circumstances, I propose to grant leave in respect of both pain and suffering and economic loss. I shall make consequent orders.
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