Scott v Yallambee Village and Victorian WorkCover Authority
[2013] VCC 396
•11 April 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01000
| MARIA VICTORIA SOLEDAD SCOTT | Plaintiff |
| v | |
| YALLAMBEE VILLAGE | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 8 April 2013 | |
DATE OF JUDGMENT: | 11 April 2013 | |
CASE MAY BE CITED AS: | Scott v Yallambee Village & Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 15 April 2013] | [2013] VCC 396 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendants | Mr P A Scanlon QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of her employment with the first defendant from 2003 until 27 August 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damages require the application of different statutory tests as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
4 The impairment of a body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
5 By ss(38)(c) of that section, the impairment must have consequences in relation to which a pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being more than significant or marked and as being at least very considerable.
6 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
7 Here, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more both at the date of hearing and permanently thereafter. Subsections (38)(e) and (f) of the relevant section recite the formula by which loss of earning capacity is to be measured. Subsection (38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
8 Although subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases, this is not in contention in this matter.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
10 The defendants concede that the plaintiff has suffered an injury to the lumbar spine in the course of her employment as alleged, and further concedes that leave should be granted to issue proceedings for pain and suffering but says that such physical injury has produced consequences which do not meet the threshold as set out by the Act for economic loss. Accordingly, it is said, the claim under paragraph (a) should fail with respect to loss of earning capacity.
Compensable Physical Injury
11 It is common ground that on the alleged date, the plaintiff aggravated an L5‑S1 spondylolisthesis and disc at that level and also aggravated an L3-4 disc which resulted in a laminectomy and spinal fusion at the level of L5-S1, performed by Mr Roy Carey on 30 November 2010.
12 The plaintiff swore an affidavit on 13 September 2010 in these proceedings, wherein she deposes that she had worked as a personal care attendant for the first defendant managing high-care patients. These patients were often bedridden with stroke or dementia.
13 On or about 27 August 2008, she had to lift a resident out of bed. The resident was frail but was able to move around using a “wheelie walker”. She tried to lift him up to transfer him to a commode chair to wheel him to the shower to get him cleaned up. She was bent over and twisted, trying to lift the resident, when she felt pain in the lower back.
14 She saw her general practitioner, Dr Apostol. She was sent for a CT scan which showed an injury to the lower spine, as already indicated. She was put off work and she was prescribed Panadeine Forte. At first she had about two weeks off work, and then went back to work on light duties.
15 Thereafter, by about June 2009, she could not cope. She swore that her back pain was not getting better. It continued to get worse. She stopped working for the first defendant and also finished working in co-existing employment with a bus company, driving a bus.
16 In her first affidavit, she swore that the pain was in her back all the time. It was always there in the background. On most days, it became worse and became very bad. She suffered from stabbing pain. She could not stand comfortably for more than about 30 or 40 minutes and she could not sit comfortably for more than an hour. She swore that if she stood for more than 40 minutes or sat down for more than about an hour, the back pain got worse. She could not sit all the way through a movie. She had to stand up on a train or plane trips. Sometimes, she said, the back pain got worse for no reason at all and she felt that cold weather seemed to make it worse.
17 She also said that she had to be careful about the way she did her shopping, cooking, dishes, washing or hanging out clothes to dry. Her husband had to do the vacuuming and the heavier lifting around the house, and her children assisted as well.
18 In her second affidavit, sworn on 1 May 2012, she attested that she had suffered constant ongoing back pain which resulted in surgery to her back performed by Mr Roy Carey on 30 November 2010.
19 Although the surgery did provide some temporary improvement in the pain she was experiencing, the improvement was not sustained. Gradually the back pain returned and symptoms into her left leg developed. She continued to experience chronic fluctuating back pain and left leg numbness. It is significant that Mr Carey concedes that the left leg symptoms were as a result of the surgery.
20 After surgery, the plaintiff swore that the severity and the duration of her back pain and the left leg pain were unpredictable. Often the pain is made worse by sitting, standing, bending, twisting and lifting and by general day-to-day activity. Domestic household chores such as vacuuming, laundry and cleaning are very difficult for her. She found she had to pace herself to complete many domestic household tasks. Often she avoided such tasks because the pain was too severe and she needed the assistance of her husband and children, as earlier indicated.
21 She also stated she had persistent ongoing problems with her left lower leg and foot post-surgery. She experienced frequent episodes of numbness on the outer side of the left foot and leg and she said she had “strange ache-like sensations” in the left lower leg and foot. The left leg felt weak and unreliable. She had weakness in her left foot and she had been provided with a plastic brace to support her left foot, ankle and lower leg by Mr Carey. She tried to walk as much as possible. She said she could walk up to 2 kilometres, by which time low-back pain and pain in the left leg and left foot would become much worse. She complained of instances of unsteadiness on her left leg and left foot.
22 At that stage, she remained under the care of her treating general practitioner, Dr Jocelyn Apostol, and she was taking medications – Panadeine Forte at least two to three times per week, sometimes one each day depending on how severe the pain was. In addition, she was using Panadol daily.
23 At that stage, she was continuing with physiotherapy regularly, usually once a month, and she was attending a gym for exercise twice per week. She used heat packs to relieve soreness, and pain and discomfort in her low-back frequently.
24 Significantly, she attests how in early 2012, she undertook a Certificate III and Certificate IV in Pathology at Care Training Australia, Carnegie. She attended this course one day per week and completed the course in approximately October 2012.
25 She swore that she found attending at the course very difficult. She had to travel from Traralgon to Glenhuntly by train and then by tram to Carnegie. Class time of seven hours plus four to five hours’ travelling to and from Traralgon was very difficult for her. She had to stay the night before the course to break the trip up and make it easier for her back. She struggled to cope with the demands of travelling to and from the course, as well as sitting during lectures. She found that she needed to change her posture frequently during class, sitting and standing to relieve back pain and left leg symptoms.
26 In her third affidavit, sworn on 8 April 2013, she swore that she had been unable to return to work since June of 2009 and was still in receipt of WorkCover weekly payments of compensation. She said that she had numbness in her left leg and left foot all the time. It was constant and it involved the whole leg and was worse on the outer side and into the left foot. The numbness was also in the sole of the left foot and in the toes. She also said that she had a strange ache-like feeling in the left leg and into the left foot. Her left leg remained weak and unreliable and it felt unstable to her.
27 Because of these problems, she said she had tripped and fallen on several occasions which resulted in the supplying of the ankle splint for her left foot by Mr Carey. She also said she had experienced many episodes of stumbling because of weakness and instability in the left leg and foot. She cited an example on 2 August 2012, when she fell as a result of weakness and instability in the left foot and leg and struck her right elbow on a coffee table and has suffered persistent problems with that right elbow since then.
28 At this stage, she was using Panadeine Forte, usually one every day, also using Panadol daily, usually one to two each morning and two each night. She said that she was unable to get by without medications.
29 Further, she said that she was never free of back pain, the severity of which fluctuated. Prolonged periods of sitting and standing caused back pain to become much worse and it was made worse by activities involving bending, flexing, twisting and turning her back. She was able to do most of her household tasks but was helped by her husband and son. She said she could get by if she paced herself, but some days were more difficult than others.
Loss of Earning Capacity
30 It is not in contention that the plaintiff’s without injury earnings are in the vicinity of $55,000 according to the formula declared by statute. Sixty per cent of that figure is $33,000, which translated to 25.3 hours per week casual work, or 30.21 hours per week if the plaintiff was a permanent phlebotomist as per the certificate that she had completed in 2012.
31 As the defendants in this case had conceded that the plaintiff had achieved the level necessary for the granting of a certificate for pain and suffering, the contest between the parties developed into a narrow compass, factually, in the sense that the plaintiff’s case was that she could only work “up to 20 hours” as a phlebotomist compared with the threshold period, which I find to be 25.3 hours per week, as a casual worker, at Gippsland Pathology.
32 It was tendered in evidence, without objection, that the Gippsland Pathology Service had permanent, part-time and casual positions available as at March of 2013 for a phlebotomist, also known as a pathology collector.[1]
[1]Exhibit A
33 The plaintiff concedes that she is able to work in this capacity and it is common ground that this is suitable employment for her. She says that because of the pain and the disability, she could not work the required 25 hours per week and she would need rest in between full days of work, as she had to undertake, when she was travelling, doing the course.
Medical Evidence
34 Essentially, the plaintiff has relied on three expert witnesses, being the treating surgeon, Mr Carey, orthopaedic surgeon, Mr O'Loughlin, and occupational physician, Dr Sillcock. By contrast, the defendants have had the plaintiff examined by orthopaedic surgeon, Mr Michael Dooley, who was the only one of the defendants’ doctors to have seen the plaintiff post-operatively.
35 It is only the occupational physician, Dr Sillcock, who placed an hourly restriction on the plaintiff's ability to work as a phlebotomist. It was common ground amongst all the doctors that she was unfit for her pre-injury duties but that she would be fit to perform the work as a phlebotomist on a part-time basis.
36 Dr Sillcock, in expressing the opinion that the pathology collection would be appropriate work for her, commented as follows:
“This does sometimes require a little bending and standing but I believe that she would be able to manage as there are breaks in between. I recommend that she could work up to 20 hours per week.”[2]
[2]Exhibit F, 30/4/12, PCB 77
37 Ordinarily, I would find this basis for a recommendation of up to 20 hours per week as being inadequate. However, I believe that Dr Hillock’s opinion should be read in the context of her report as a whole and, indeed, with the other medical practitioners as a whole.
Plaintiff's Medical Practitioners
38 Mr Roy Carey, orthopaedic surgeon, reported on 10 August 2011, which was post-surgery. He stated that x-rays showed excellent incorporation of the posterolateral graft at that time. He commented that the plaintiff still had chronic low-back discomfort which worried her with sitting and standing in one spot. Her pain rating had dropped from 85 pre-operation to 40, and this related primarily to the fact that the back feels better but “by no means perfect”. Relevantly, he stated:
“Her left leg remains symptomatic as a result of the decompression and when I examined her today the findings are now much the same as those reported 30 May, although for some reason the sensation to pinprick on the top of the left foot is now again abnormal.”[3]
[3]Exhibit D, 10/8/11, PCB 43
39 On 21 November 2011, Mr Carey reported that he was happy for her and encouraged her to undertake the course of a phlebotomist. Mr Carey again reported on 18 April 2012, confirming that an MRI scan of the lumbar spine in March of 2009 had shown the spondylolisthesis with disc degeneration at L5‑S1 and normal discs at L4-5 and above. His opinion was that the plaintiff had aggravated a pre-existing asymptomatic lumbosacral spondylolisthesis as a result of the work injury as noted. Post-operatively, she had awoken with a left L5 radiculopathy not present pre-operatively, and this was with both motor weakness and altered sensation. He felt that the foot drop component was not severe, however, and she was able to get about quite well and that there were no cauda problems. He noted that he had reviewed the plaintiff on many occasions since the operation and it can be said that –
“… now, sixteen months later, she feels quite good, her back feels better pre-operatively and she has no right leg symptoms and her left leg is significantly stronger with now grades 4 and 4 plus in all of the previous weak muscles. She still has some L5 sensory alteration but not as dense as previously.”
40 He felt that the prognosis was for continued improvement, particularly with her left L5 radiculopathy.
41 Finally, when seen on 21 February 2013, he noted that she was still having significant symptoms with her left leg, as previously described, with respect to sensory motor weakness and pain, and this was causing her to limp. Examination of her lower limb confirmed the altered L5-S1 sensation to pinprick and also the strength as previously recorded. He enclosed a copy of the MRI scan report which had shown significantly a swollen left L5 nerve root but a completely normal S1 root. He felt that she should not attempt the phlebotomist work until the right arm pain had settled due to the fall as already described.
42 Mr Stanley O’Loughlin, orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 13 March 2012.[4] At that stage, he noted that the plaintiff was able to drive but stopped after about 45 minutes. She was able to do the housework but had some difficulty with bending and lifting and was restricted in looking after her garden. At that time, she was taking Panadeine Forte, usually one at night, and Panadol during the day. She was doing physiotherapy every three weeks and attending gym twice a week. He felt that she had an L5-S1 grade 1 spondylolisthesis which had been rendered symptomatic by the injury. She still had pain, which was probably related, he thought, to the L3-4 disc damage which was probably injured at the same time. He believed that she had sustained an aggravation of an L5-S1 spondylolisthesis and also a disc injury at L3-4. He felt at that stage, that she was stabilised and there was not going to be a great deal of further improvement.
[4]Exhibit E
43 When he saw her again on 19 February 2013,[5] he noted again that she had developed some sensory changes in the left leg and weakness in the left foot following the surgery. Otherwise the back pain was improved. She felt that the left leg, though, had become a little weaker, and on a number of occasions she had fallen, which he attributed to weakness in the left foot. She had also complained of some numbness over the outer aspect of the left leg which was present all the time. He recorded the fall that she had at home in August of 2012 resulting in the right elbow injury. He noted that she was able to drive and do most of the housework but had some difficulty with bending and lifting. He noted that she was going to start looking for employment soon. At that stage, he did not think that there would be a great deal of improvement in her condition.
[5]Exhibit E
44 Occupational physician, Dr Amanda Sillcock, first saw the plaintiff on 30 April 2012 and took a relevant history of the injury.[6] At that stage, her symptoms of pain were mainly in her lower back but she sometimes had aching in the left calf and lower leg. She had an occasional sharp pain in the left hip and groin. She said that she did have some pain-free periods. The pain was made worse by walking, prolonged standing and cold weather. She remained numb from the knee down on the left. She stated that she could sit or stand for about an hour before she has to move around. She wears a brace on her leg as she walks. The pain in the back and the leg are worse if she walks, especially the calf pain. She feels unbalanced and has tripped over, so she wears a brace on the leg. She does not have any trouble driving an automatic car. She catches a train to Caulfield once a week without difficulty. She is largely independent to self-care but has to think about how she does things. She does the lighter housework and her husband does the vacuuming. She has trouble bending and has the line down low to hang out the washing. She said she does the shopping but cannot push a heavy trolley and she can only carry one or two bags, so her husband goes with her. As already recorded, she recommended that the plaintiff work up to 20 hours per week as a phlebotomist.
[6]Exhibit F
45 When seen again on 3 December 2012,[7] there had been no change in the plaintiff’s daily activities and she was still unable to do heavy housework. There was very little change on physical examination. She had gained some weight and now weighed 55 kilograms compared to 47 kilograms when last examined. She had persistent left foot drop and weakness of the left ankle and big toe dorsiflexion and plantar flexion. She had persistent reduced sensation to pinprick over the lateral side of the left leg and foot and she had persistent muscle wasting in her left leg. Once again, she noted that the plaintiff developed left L5 radiculopathy after the surgery. Once again, she indicated that she could do a range of jobs on a part time basis up to 20 hours per week.
[7]Exhibit F
The Defendants’ Medical Evidence
46 As already indicated, the only medical practitioner on behalf of the defendants who had seen the plaintiff post-operatively was Mr Michael Dooley. He first saw her on 9 March 2012. He noted that in November of 2010, she underwent a fusion operation on her back and she said that overall there had not been improvement in her symptoms since the surgery. She was currently undertaking a phlebotomy course which she was attending once a week and it required her taking a train from Traralgon to Carnegie and back. On examination, relevantly, he noticed that on the left-hand side there was some mild weakness of the long toe extensor and some alteration in sensation in the L5 distribution. He noted the plaintiff had been told that radiologically the fusion was solid. Overall however, the plaintiff did not feel that the surgery had improved her condition to any significant degree. She reported ongoing low-back pain and said that since surgery, she had noted some left thigh numbness and lower limb pain with a lot of activity. Mr Dooley stated:
“Sensibly, she is retraining and she hopes to work as a phlebotomist which would be within her physical capabilities. It is likely that she will continue to note intermittent low back pain and some left sided lower limb pain. She will not be able to engage in heavy physical employment and she will not be able to engage in impact leisure pursuits.”[8]
[8]Exhibit 4, 9/3/12, DCB 33
47 He considered that her condition was now stabilised and in the main that the condition was self-managed and no further specific treatment was required. In general, he thought she would be capable of light physical work and clerical activity and when returning to work he believed that she “will be able to graduate to full time work”. Importantly, and relevantly, he records:
“[The plaintiff] presents as a sensible and genuine historian. I do not believe that she is exaggerating her symptoms. In my view, there are no signs of abnormal illness behaviour, et cetera.”[9]
[9](supra) DCB 34
48 Mr Dooley reviewed her again on 27 March 2013. He took a history that she continued to note weakness in her left lower limb and that, as a consequence of this, she has falls. He noted that she continued to suffer from low-back pain with prolonged sitting and prolonged standing. She had stopped taking Lyrica because of its side effects and she was now taking only Panadeine Forte for the pain. On examination, the abnormalities were slight weakness of the dorsiflexion of the left great toe and there was altered sensation in the distribution of the L5-S1 nerve roots on the left side. With respect to radiological investigations, he noted an MRI scanning of the lumbar spine taken in January of 2013 showed no evidence of major disc prolapse or of nerve root compression; however, there was some swelling of the left L5 nerve root. Further nerve conduction studies are reported to show a chronic radiculopathy in relation to the left L5 nerve root or possibly a lesion of the common peroneal nerve. Once again, Mr Dooley recorded that the plaintiff was a “sensible and genuine historian”. Relevantly, he stated further:
“My overall impression however since last review is that the system is gradually wearing Ms Scott down. While I accept that she has right elbow pain, I would not expect this to interfere with her ability to work as a phlebotomist … I remain firmly of the view that for Ms Scott's overall long term wellbeing it is important that she returns to suitable work. I believe that she has the physical capacity to carry out work as a phlebotomist and that it is important that she does so.”[10]
[10](supra) DCB 34C
49 Further, he furnished the following opinion:
“In relation to the lumbar spine, I do not believe that the plaintiff requires specific ongoing orthopaedic treatment. I accept that she is noting pain in her left lower limb and that she notes a tendency for the limb to give way. I cannot easily explain this on an organic basis. I would emphasise that by this statement I do not believe that the plaintiff is exaggerating her clinical condition. I believe that with time she is becoming psychologically worn out by the process. This factor is influencing her ongoing presentation. I remain of the view that Ms Scott has the physical capacity to work as a phlebotomist. On return to suitable work I believe that she would have the physical capacity to increase her hours towards full time.”[11]
[11](supra) DCB 34D
50 Counsel for the plaintiff suggests that the second report of Mr Dooley, in essence, shows that the plaintiff is being worn out because of the pain suffered due to the injury. I consider that there is some merit in this argument. However, I must take into account Mr Dooley's opinion that he cannot easily explain the giving way of the left lower limb on an organic basis and that this necessarily has to be removed from the formula as stipulated by statute. However, chronic pain, as a matter of experience, can psychologically wear out plaintiffs in the sense that their resistance to combat the pain, as a matter of normal experience, can be compromised.
Findings
51 At the end of the day, as already indicated at the outset, the ultimate issue is one of relatively narrow compass but is not necessarily easily determined. The plaintiff herself says that she would be unable to work the 25 hours threshold per week which would roughly translate to five days per week at five hours per day. She receives some support for this proposition from occupational physician, Dr Sillcock, although, as I have already stated, on an apparently limited basis.
52 Counsel for the defendants, in a searching but fair cross-examination of the plaintiff, elicited evidence that the job of a phlebotomist in the breakdown of its inherent tasks is essentially very light. Counsel for the plaintiff concedes that the plaintiff is able to perform each of the tasks in the job description set out as a phlebotomist.
53 I take into account the following factors in determining the ultimate issue in this case. First, the defendants in this case concede that the plaintiff is deserving of a certificate for pain and suffering which, in itself, is a valuable indicator as to the severity of the economic loss component. It is further conceded that the plaintiff is an honest historian and concedes matters when they have to be conceded. She comes from a hardworking background, holding down two or three jobs concurrently before she was injured.
54 I accept that she suffers from chronic pain in the back and leg and with the consequences as already described and that this has the effect of affecting her resistance over time. I accept her evidence that she would not be able to manage the required 25 hours per week.
55 Taking all these matters into account and the consistency of the medical evidence, I consider that she has tipped the balance slightly in her favour, such that she has discharged the onus of proof, and I find that there would be a 20-hour per week limit on a permanent basis as a result of the physical injury.
56 Accordingly, leave will be granted to the plaintiff to commence proceedings for pain and suffering and for loss of earning capacity, and I will hear the parties as to any consequential orders.
Ruling as to Costs
57 In this matter, I am disposed to certify for Counsel’s fees, although I accept that there is the concurrent jurisdiction in the Costs Court and, prima facie, that that Court is well able to determine these matters. I have now heard this case and delivered judgment and consider that probably – it was not an easy case to determine, and I consider that probably I am in the best position to assess whether or not Senior Counsel should have been retained in this matter.
58 As indicated, the plaintiff had only just discharged the onus of proof and I consider that it was prudent for the solicitor to engage Senior Counsel’s services at the outset and I am disposed to exercise the concurrent jurisdiction and to order certification for Counsel’s fees in addition to the costs order already agreed to between the parties. I am sympathetic to Counsel’s submission that there has not been an increase, as he says, for some eleven years, but I am unable at this stage to say there is a general move by the judges to make that increase.
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